WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2008 WAIRC 00270

DELIVERED : FRIDAY, 2 MAY 2008

FILE NO. : FBM 1 OF 2008

Applicant

AND

The State School Teacher's Union of W.A.(Incorporated)

Respondent

CatchWords:

Industrial Law (WA) – Application by Registrar under s 84A of the Industrial Relations Act 1979 (WA) for the enforcement of an order of the Commission – school teachers - union in breach of order to abstain from industrial action in the form of stop work meetings  - breach of order to lift directive on members to attend meetings.

Construction of s84A – nature and purpose of enforcement applications - nature and purpose of enforcement proceedings – similarity to contempt – need to reassert importance of obeying orders

Enforcement of s84A proceedings - appropriate use of available dispositions - whether issuing of a caution, imposition of a financial penalty or ordering suspension or cancellation of organisation appropriate disposition.

Contravention admitted – joint submission that accepting undertaking appropriate disposition - determination of application under section 84A – factors to be considered - where contravention proved - seriousness of the breach – factors to determine – mitigation – nature of the breach –wilful and deliberate – significance of undertaking – mitigation in this application – contravention proved – purpose of financial penalty – low maximum - financial penalty imposed.

Legislation:

Industrial Relations Act 1979 (WA) –ss 32, 32(8), 42, 42B(3), 42E, 44, 44(3), 44(6), 49(11), 66,  73, 73(1), 84A, 84A(4), 84A(5),  92(1), 92(2)

Industrial Relations Commission Regulations 2005 (WA) – ss 60(5), 60(6)

Magistrates Court Act 2004 (WA) – ss 15, 16

State Administrative Tribunal Act 2004 (WA) – s 100

Result:

Contravention proved, financial penalty imposed

Representation:

Counsel:

Applicant : Mr R Andretrich (of Counsel), by leave

Respondent : Mr T Borgeest (of Counsel), by leave

Solicitors:

Applicant : Office of the State Solicitor

Respondent : Slater and Gordon, Lawyers

Case(s) referred to in reasons:

Australian Competition and Consumer Commission v World Netsafe Pty Ltd and Another (2003) 204 ALR 537

Australasian Meat Industry Employees’ Union and Others v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 97 IR 474

Cameron v The Queen (2002) 209 CLR 33

Construction, Forestry, Mining and Energy Union v BHP Steel (Ais) Pty Ltd (2003) 196 ALR 350

Kennedy v Lovell [2002] WASCA 226

Mobileworld Communications Pty Ltd v Q and Q Global Enterprises Pty Ltd [2004] FCA 1200

Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435

Perez v The Queen (1999) 21 WAR 470

Re Metropolitan Laundry Employees’ Industrial Union of Workers (1982) 62 WAIG 327

Re State School Teachers Union of WA Inc (1990) 71 WAIG 33

Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309

Registrar v Metals and Engineering Workers’ Union – Western Australia and Others (1993) 73 WAIG 557

Robe River Iron Associates v Amalgamated Metal Works and Shipwrights Union of Western Australia (1989) 69 WAIG 990

Sgroi v The Queen (1989) 40 A Crim R 197

The Registrar v McGlew (2006) 86 WAIG 400

The United Furniture Trades Industrial Union of Workers, WA v The Construction, Mining and Energy Workers Union of Australia, Western Australian Branch (1990) 70 WAIG 3048

Theiss Pty Ltd and Others v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union – Western Australian Branch and Others (2006) 86 WAIG 2495

Witham v Holloway (1995) 183 CLR 525

Reasons for Decision

THE ACTING PRESIDENT:

Summary of Outcome

1          This is an application to “enforce” an order of the Commission.  The members of the Full Bench are publishing separate reasons for decision but I publish this paragraph with the authority of the Chief Commissioner and Senior Commissioner.  The Full Bench is unanimously of the view that the contravention of the order is proved and that the appropriate disposition is a financial penalty.  It is also unanimous in concluding the appropriate financial penalty is $1500. Although separate reasons for decision are to be published, neither the respondent, other organisations and associations nor the public should be in any doubt as to the seriousness with which all members of the Full Bench view the respondent’s conduct.

2          What now follows are my reasons for decision.

Introduction

3          This is an application for the “enforcement” of an order of the Commission, brought pursuant to s84A of the Industrial Relations Act 1979 (WA) (the Act).  The order was made by the Commission pursuant to s44(6) of the Act on 25 February 2008 in application C 4 of 2008.  In that still pending proceeding the Department of Education and Training (the DET) is the applicant, and the present respondent is the respondent.

Section 84A of the Act

4          Section 84A provides:

“84A.  Proceedings before Full Bench for enforcement of this Act

(1) Subject to this section, if a person contravenes or fails to comply with — 

(a) any provision of this Act (other than section 42B(1), 44(3), 51S or 74) or an order or direction made or given under section 66 — 

(i) the Minister;

(ii) the Registrar or a deputy registrar;

(iii) an industrial inspector; or

(iv) any organisation, association or employer with a sufficient interest in the matter;

or

(b) section 44(3) or a direction, order or declaration given or made under section 32 or 44, the Registrar or a deputy registrar at the direction of the Commission,

may make application in the prescribed manner to the Full Bench for the enforcement of that provision, order, direction, declaration or section.

[(2) repealed]

(3) Subsection (1) does not apply to a contravention of or a failure to comply with —

(a) a civil penalty provision; or

(b) a provision of this Act if the contravention or failure constitutes an offence against this Act.

(4) In dealing with an application under subsection (1) the Full Bench — 

(a) shall have regard to the seriousness of the contravention or failure to comply, any undertakings that may be given as to future conduct, and any mitigating circumstances; and

(b) before proceeding to a hearing of the application, shall invite the parties to the application to confer with it, unless in the opinion of the Full Bench such a conference would be unavailing, with a view to an amicable resolution of the matter to which the application relates.

(5) On the hearing of an application under subsection (1) the Full Bench may — 

(a) if the contravention or failure to comply is proved — 

(i) accept any undertaking given; or

(ii) by order, issue a caution or impose such penalty as it considers just but not exceeding $2 000 in the case of an employer, organisation, or association and $500 in any other case; or

(iii) direct the Registrar or a deputy registrar to issue a summons under section 73(1);

or

(b) by order, dismiss the application,

and subject to subsection (6), in any case with or without costs, but in no case shall any costs be given against the Minister, the Registrar, a deputy registrar, or an industrial inspector.

(6) In proceedings under this section costs shall not be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the Full Bench, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.

(7) Where the Full Bench, by an order made under this section, imposes a penalty or costs it shall state in the order the name of the person liable to pay the penalty or costs and the name of the person to whom the penalty or costs are payable.

(8) The standard of proof to be applied by the Full Bench in proceedings under this section shall be the standard observed in civil proceedings.”

Application C 4 of 2008

5          The application by the DET was made pursuant to s44 of the Act.  Section 44 provides for the holding of a compulsory conference by the Commission.  The application was filed on 22 February 2008 and the Commission convened a conference on 25 February 2008.  The order which is the subject of these enforcement proceedings was made on the same date.

The Order

6          The order was a lengthy document which contained what was in effect the reasons for decision of the Commission in the form of a preamble of recitals as well as numbered orders.  This was a permissible form for the Commission to give reasons for the making of an order under s44 of the Act (Robe River Iron Associates v Amalgamated Metal Works and Shipwrights Union of Western Australia and Others (1989) 69 WAIG 990 at 991, 998-9). 

7          There were six numbered orders. In the preceding paragraph the Commission said the orders were made “having regard for the interests of the parties directly involved, the public interest and to prevent the further deterioration of industrial relations, and pursuant to the powers vested in it by the Act, and in particular s44(6)(ba)(i) and (ii) and s44(6)(bb)(i) and s42 of the Act …”.  The orders were:

“1. THAT the respondent, its officers, agents, employees and members lift Directive 2 and cease the foreshadowed industrial action, in the form of a stop work meeting to be held on 28 February 2008 in relation to the negotiation of a new agreement.

2. THAT the respondent, its officers, agents and employees are to take reasonable steps to immediately inform its members about the terms of this order and the lifting of Directive 2 and direct its members to comply with this order.

3. THAT the respondent, its officers, employees and members are not to hold any further stop work meetings in relation to the negotiations for a new agreement whilst this order remains in force.

4. THAT the parties are to hold further discussions prior to 29 February 2008 with a view to resolving the issues in dispute with respect to a new agreement and a report back conference will be held in the Commission on Friday 29 February 2008 to review the progress of these negotiations.

5. THAT this order is to remain in force until revoked or varied by the Commission.

6. THAT both parties have liberty to apply to vary this order.”

The Commission’s Reasons for Decision

8          The following is a summary of what as I have said were in effect the reasons for decision of the Commission as set out in the preamble to and by way of recitals to the order.

9          The position of the DET was set out as follows.  The DET advised the Commission that since 21 September 2007 the parties had been negotiating a replacement agreement for the School Education Act Employees’ (Teachers and Administrators) General Agreement 2006 (the Agreement) due to expire on 1 March 2008.  The DET had made two offers to the respondent and its members which had been rejected.

10       On 10 January 2008 the DET lodged an application in the Commission to initiate a bargaining period for a replacement agreement.  On 31 January 2008 the respondent agreed to bargain for a new agreement in good faith in accordance with the Act.

11       The DET said the respondent had issued two directives in February 2008 to its members to undertake industrial action.  Directive 1 obliged the respondent’s members to “work to rule” and not undertake “voluntary activities” outside of normal working hours unless payment and/or time off in lieu was provided.

12       Directive 2 was issued on 21 February 2008.  It was, relevantly:

“That the members are directed to stop work on the morning of Thursday 28th February 2008 for the purpose of attending various forums to receive an update on the status of negotiations and to consider further member response to the progress of negotiations.”

13       The DET argued that industrial action at this stage of negotiations was unwarranted and not in the public interest as the parties had participated in regular meetings since 24 January 2008 to finalise a new industrial agreement, significant progress had been made between the parties and further meetings were planned to take place.

14       The DET argued that Directive 1 constituted industrial action.  The DET also argued it had a legislative duty to ensure the safety and welfare of students who are required to attend school and the industrial action proposed to take place on 28 February 2008 “will seriously jeopardise [the DET’s] capacity to fulfil this obligation”.

15       The DET sought an order that Directive 1 and Directive 2 be lifted and the cessation of all current and future industrial action to be undertaken by the respondent and its members in support of a new industrial agreement.

16       The DET argued “the foreshadowed “stop work” meeting on 28 February 2008 would present a major safety risk to students and would adversely impact on the learning programmes of the 250,000 students in Western Australian Government Schools as:

•  [The DET] was unsure exactly how many teachers would attend the stop work meeting and early indications are that no staff may be in attendance at a number of schools and it would therefore be logistically difficult to supervise all students who attended schools on 28 February 2008;
• country schools where teachers are not in attendance will be difficult to staff given geographic constraints;
• buses and cross-walk attendants will not be available to assist students arriving at schools in the middle of the day;
• parents would be seriously inconvenienced by teachers no being available to teach their children.”

17       The DET also said it was in a position to give a response to the respondent’s revised salary claim the following week.  This was to be evaluated in light of the whole package to be negotiated with the respondent.  Additionally the DET was committed to having ongoing discussions with the respondent to finalise an industrial agreement, but this was open to being reviewed in light of the industrial action then taking place and that which was scheduled.

18       The respondent’s position was summarised as follows.  The respondent argued the “stop work” meeting was necessary as:

“ the respondent’s members required first hand knowledge about the status of negotiations with [the DET] for a new industrial agreement given the delays which have already occurred with respect to the negotiations between the parties;

• the respondent’s members were not taking industrial action lightly given its obligations to students;
• the respondent’s members will return to their respective workplaces after the stop work meeting finished at 10.30am.”

19       The respondent also maintained their members’ actions were supported by some parents who would not be sending their children to school.  The respondent conceded however that negotiations between the parties for a new industrial agreement had not been exhausted.

20       The Commission said the matter before it was an industrial matter as it “relates to issues pertaining to the employment relationship between [the DET] and the respondent’s members and the rights of an organisation …”.  The Commission also said it was of the view that it had jurisdiction to issue the orders sought pursuant to s44 of the Act.  The Commission said that, “when taking into account equity and fairness and the substantial merits of this case, the objects of the Act and the provisions of s42B(3) and s42E of the Act with respect to the obligation on parties to bargain in good faith and the Commission’s powers to order a negotiating party to refrain from doing any particular thing, the Commission has formed the view that the industrial action contemplated under Directive 2 should not occur …”.

21       The Commission then said that “in reaching this conclusion the Commission has taken into account that the interests of those persons directly involved in this dispute, particularly students, will be compromised if the proposed stop work meeting takes place on 28 February 2008”.

22       The Commission also said it was not presently of the view that the terms of Directive 1 constituted an industrial action and therefore no order would be issued that it be lifted.

23       The reasons then concluded in the way I have already mentioned and the order was set out.

The Direction from the Commission

24       Section 84A(1)(b) of the Act states that an application of this type may only be brought by  the applicant when directed to do so by the Commission.  In a document dated 29 February 2008 the Commissioner who had issued the order referred to a report from the applicant of the same date (which has not been put before us) and directed an application be made in the “prescribed manner to the Full Bench for enforcement of the Order issued by me on 25 February 2008”.

The Enforcement Application

25       The application, in the form of a summons, was filed on 29 February 2008.  The first two paragraphs of the particulars to the application set out that the DET and the respondent were negotiating for a new agreement and quoted “Directive 2”.  The particulars then continued:

“3. On the application of the Director General, Commissioner Harrison, pursuant to section 44(6) of the Industrial Relations Act issued the orders appended hereto which in general terms required the Respondent to lift Directive 2 and take reasonable steps to advise its officers, agents, employees and members that the stop work meeting would not be held on the 28th of February, 2008.

4. Contrary to the order made on the 25th February, 2008:

(a) The stop work meeting was held on the 28th February, 2008.

(b) The Respondent advised its officers, agents employees and members that the stop work meeting be held.

(c) The Respondent did not advise its officers, employees, and members that no further stop work meetings are to be held during the currency of the order.”

The Return Date of the Summons

26       The application also included an assertion, pursuant to regulation 60(5) of the Industrial Relations Commission Regulations 2005 (WA), that there was good cause to list the matter less than 14 days from the date on which the application was filed.  Reasons for the asserted good cause were then set out.  In accordance with regulation 60(5) I specified a first return date of 7 March 2008, for a directions hearing.  This listing did not conflict with regulation 60(6) as it was not going to be the “hearing of the application”.

The Directions Hearing

27       At the directions hearing the parties advised the Full Bench that they thought a conference pursuant to s84A(4)(b) of the Act would be “availing”.  Accordingly the Full Bench ordered that such a conference take place on 11 March 2008.  The conference duly occurred.  At the conclusion the Full Bench made an order listing the application for hearing on 27 March 2008.  Orders were also made that both parties should prior to that date file and serve written submissions and any affidavits upon which they sought to rely.

The Statement of Agreed Matters

28       On 25 March 2008 the parties filed a document entitled “Agreed Matters”.  It was signed on that date by the solicitors for both parties.  The terms of the document were:

“1. The Applicant alleges a contravention of the order made by the Commission on 25 February 2008 in matter C4 of 2008.

2. The contravention alleged by the Applicant consisted of the Respondent failing to comply with the abovementioned order in that

a) the Respondent did not lift ‘Directive 2’;

b) the Respondent did not cease the foreshadowed industrial action in the form of a stop work meeting to be held on 28 February 2008 in relation to the negotiation of the new agreement;

c) The Respondent did not take reasonable steps to immediately direct it’s (sic) members to comply with the order.

3. The Respondent admits to that allegation.

4. The Respondent offers the following undertaking:

The State School Teacher’s Union of Western Australia Incorporated undertakes that it will, in the future, comply with orders of the Commission.

5. The parties jointly submit, for the reasons separately articulated by them in their respective submissions, that the appropriate disposition of the present application would be that the Full Bench find that the alleged contravention or failure to comply is proved and, pursuant to section 84A(5)(a)(i) accept the above undertaking proffered by the Respondent.”

Submissions on the First Day of the Hearing

(a) The Applicant

29       The applicant filed written submissions which were amplified at the hearing.  A letter dated 27 February 2008 from the respondent to the Director General of the DET was received as exhibit 1.  The letter said:

“Please be advised that Executive have endorsed the following resolution this morning.

That Executive, after careful and due consideration of the WAIRC Orders C/42008 with due respect directs its members to comply with Directive 2 and on 28th February 2008 attend a stop work meeting in various forums in the metropolitan area and country regions for the purpose of receiving an update on the status of negotiations and to consider further member response to the progress of negotiations.

As a consequence members have been advised to comply with Directive 2 Stop Work Meeting tomorrow 28th February 2008.” (emphasis in original)

30       The letter was signed by the president of the respondent.

31       The applicant’s written submissions also referred to a document from the respondent to its members.  That document was received as exhibit 2.  The document was in the form of an “EBA 2008 Update”, No 32 dated 27 February 2008.  It was headed “Directive 2 Stop Work Information”.  The document quoted Directive 2.  The document then said:

“On 25.02.08 DET sought orders from the WAIRC to have the SSTUWA lift Directive 1 and Directive 2.

The WAIRC issued orders for the SSTU to lift Directive 2.

Executive met today to give the WAIRC order C/4 2008 due consideration and receive advice on this matter.

As a consequence, Executive determined the following:

THAT DIRECTIVE 2 STANDS AND THE STOP WORK ACTION FEBRUARY 28TH GO AHEAD.”

32       The applicant submitted the letter to the Director General and the EBA Update were in breach of both orders 1 and 2 made by the Commission.  It was submitted the breaches were not inadvertent but “considered and wilful”.

33       The applicant submitted that contrary to order 1, the meeting went ahead on 28 February 2008 with an estimated 8000 employees participating.  The applicant submitted a number of resolutions were passed at the meeting including as resolution 8:

“The members of the SSTUWA fully support and endorse further industrial action as required if the Government does not respond in a timely and adequate manner to concerns raised by the SSTUWA in relation to the negotiations of the Schools EBA 2008 and the progression of the Union’s log of claims.”

34       The applicant submitted that orders such as those made by the Commission are made in the public interest and require compliance if the system contained in the Act is to operate effectively.  It was submitted: “Compliance is not discretionary as it has been treated by the Respondent.  Orders of the Commission such as the one in question must be complied with and where there is a breach, particularly one which is wilful and flagrant, it is to be viewed seriously”.

35       The applicant then referred to the conference between the applicant and the respondent and the agreement that the application could be “amicably resolved insofar as they are concerned by way of an undertaking given by the respondent to comply with any future order of the Commission”.

36       The applicant advised the respondent had one previous breach in 1989.  The applicant submitted however that this was not sufficiently proximate to seriously bear upon the present application: Re State School Teachers Union of WA (Inc.) (1990) 71 WAIG 33.  It was submitted that having regard to the respondent’s previous history and the relatively short duration of the industrial action on 28 February 2008, the appropriate disposition of the application was to accept the undertaking offered by the respondent.

(b) The Respondent

37       The respondent’s written submissions confirmed the admission of the contravention of the order made on 25 February 2008. 

38       The written submissions then referred to the five ways in which an enforcement application may be disposed of under s84A(5) of the Act.  Submissions were made about the three considerations which the Full Bench are required to have regard to by s84A(4)(a) of the Act; being the seriousness of the contravention or failure to comply, undertakings that may be given as to future conduct and mitigating circumstances.

39       It was submitted that any “contravention or failure to comply with an order or direction of the Commission is a serious matter, as compliance is essential for the efficient and proper exercise of the Commission’s jurisdiction as a court of record and industrial tribunal”.  It was submitted that a pattern of repeated contraventions may be regarded as more serious than a “first offence”.  It was also submitted that a contravention consisting of a sustained course of conduct over a long period of time may be regarded as more serious than a one off incident.  It was submitted that a contravention involving adverse effects upon third parties may be regarded as more serious than one which had little or no impact upon others. 

40       The respondent acknowledged that it had, in the past, been required by summons under s73(1) of the Act to show cause why its registration should not be suspended or cancelled but the application was dismissed by the Full Bench on 6 December 1990 (Re State School Teachers Union of WA Inc).

41       Reference was made to the DET not intervening in the proceedings and there being no evidence of third parties being harmed by the contravening conduct.  It was said that the industrial action could be inferred to be disruptive to some extent but beyond that it was not possible to make any positive findings.  It was submitted the contravention was a one off incident.

42       The respondent said it had not ruled out the possibility of additional industrial action and pointed out the present order did not prohibit all industrial action.  The Full Bench were also advised that the order was now, but not at the time of the contravention, the subject of a pending variation application and notice of appeal.  It was submitted the only relevance of providing this information to the Full Bench was so that it might be inferred the respondent is presently seeking to secure preferred outcomes through the means provided under the Act and not in defiance of the Commission.  It was conceded that even if the order was later varied or quashed on appeal it was “operative and must be treated as having been valid at the time of the” contravention.

43       It was submitted that the undertaking offered was as broad as could be advanced as it was not limited in time or subject matter.  Under the heading of mitigation, the respondent submitted:

“22. The contravention occurred in the context of a bargaining period, under Division 2B of Part II of the Act, during which the parties to negotiations for a new industrial agreement (the respondent, and the Director General of the Department of Education and Training) are subject to duties to bargain in good faith.

23. The issues involved in bargaining for a new agreement, governing the remuneration and working conditions of the union’s members, are the most significant issues that could face the union and its members.  The stakes are extremely high.

24. The union has alleged, in s.44 proceedings before the Commission, that the employer has failed to bargain in good faith.  At the time that the s.44(6) order was made, the employer had not made any offer for a new agreement since an offer was comprehensively rejected by a vote of the employees conducted in December 2007.  The employer had not released relevant information to the union, despite formal request, including the report of the Twomey Taskforce.  The Twomey report is understood to have recently examined and informed the Department about conditions and working environment, the role of teachers, recruitment and distribution incentives, career progression, leadership, professional status, diversity in the workforce and alternative delivery models.  All of these matters are directly relevant to the negotiations for a new industrial agreement, and the respondent considers that it demonstrates a failure to bargain in good faith, on the part of the employer, to withhold the report.”

44       The respondent then acknowledged the Full Bench was not bound to accept the undertaking proffered, or the agreement as to the appropriate disposition between the applicant and the respondent.

45       It was submitted that directing the applicant to issue a summons under s73(1) of the Act should be regarded as a sanction of last resort within the enforcement scheme.  In support of this the respondent cited The United Furniture Trades Industrial Union of Workers, WA v The Construction, Mining and Energy Workers’ Union of Australia, Western Australian Branch (1990) 70 WAIG 3048 at 3049 per Sharkey P.

46       It was then submitted:

“There is little conceivable reason why an order for a caution or a (relatively modest) fine should be preferred to accepting the undertaking proferred (sic) by the respondent.  Presumably, those sanctions are available to be considered in circumstances where a respondent offers no undertaking, but the contravention is not considered serious enough to warrant action under s.73(1).”

Discussion on the First Day of the Hearing

47       At the hearing, there was discussion between the Full Bench and counsel about whether the information placed before the Full Bench adequately allowed it to assess the seriousness of the contravention.  In particular there was a lack of information about the effects of the contravention which had been commented upon in the submissions of the respondent.  For example the Full Bench noted the information provided did not advise whether, or the extent to which, the concerns which were held by the Commission and led to the orders being made, had materialised. Additionally although the applicant submitted that approximately 8000 employees were involved in the industrial action the effect of this was not specified.  Accordingly the Full Bench discussed with counsel whether an order should be made requiring the applicant to place additional information before it.  Although both counsel submitted additional information was not necessary, neither submitted that it would be beyond power to make such an order.

48       I also advised the parties I did not necessarily think that either the acceptance of the undertaking or the issuing of a caution would be an adequate disposition of the application given, in part, the possible seriousness of the contravention, and the Full Bench would need to consider whether to impose a financial penalty or direct the applicant to issue a summons under s73(1) of the Act.

49       Having regard to these comments and the foreshadowed position of the Full Bench to require additional information, the respondent’s counsel said that further submissions about the appropriate disposition would be deferred until a resumption of the hearing.

50       During the hearing the respondent’s counsel at one stage appeared to back away from the submission referred to above about “effects on third parties”.  Upon further discussion however counsel acknowledged that the Full Bench would not be in error if it assessed the seriousness of the contravention in part by reference to its consequences (T15).

51       After a short adjournment to discuss the matter, the Full Bench then made the following orders:

“1. The applicant shall by 11:00am on 2 April 2008 file and serve additional information about the number of schools in the State of Western Australia and the proportion of schools which were closed, where teaching services were not provided or which were otherwise affected by the admitted breach of the order of the Commission and the length of any such closure or other effect.

2. The respondent may by 3:00pm on 4 April 2008 file and serve a response to the additional information provided in accordance with Order 1.

3. The hearing of the application is adjourned to 7 April 2008 at 10.30am.”

The First Additional Information Document

52       On 2 April 2008 the applicant filed a document entitled “Additional Information Filed by Applicant Pursuant to Order Made on the 27th March 2008” (the First Additional Information Document).  It conveyed information that the applicant had received from the DET.  The DET said there could be a range of opinions about where the “line in the sand” should be drawn about when “teaching services” were “affected”.  The DET said the absence of 1 in 3 students and/or 1 in 3 teachers for all or part of the day “would be accepted by a school community as a generous place for the line to be drawn”.

53       The First Additional Information Document then set out the following data received from 720 out of 768 schools or education centres:

“1. The number of schools/education support centres that closed for all or part of Thursday 28 February 2008 is 35 (4.5%)

2. The number of schools that remained open and a third or more of teaching staff were absent from their school for all or part of the 28 February 2008 school day is 434 (60%)

3. The number of schools that remained open and a third or more of students were absent from their school for part or all of the 28 February 2008 school day is 531 (70%)

4. The number of schools that remained open and more that [sic] a third of teaching staff and more than a third of students were absent from their school for all or part of the 28 February 2008 is 405 (53%)”. (emphasis in original)

54       The respondent did not file any documents in accordance with order 2 above but made submissions about the First Additional Information Document and provided some information through their counsel from the bar table, without objection, on the second day of the hearing.

Submissions on the Second Day of the Hearing

(a) The Applicant

55       The applicant submitted the contents of the First Additional Information Document showed there was significant disruption.  Counsel then submitted that in assessing the seriousness of the contravention the primary consideration was the way in which the contravention was committed in the face of the order under consideration.  It was submitted the effect of the industrial action was a subsidiary consideration.  Counsel submitted the contravention occurred after a considered decision by the executive and the members were directed to continue with the foreshadowed industrial action notwithstanding an order being made by the Commission that it not.  It was submitted that in isolation the breach was at a high level of seriousness.  Counsel also submitted the public interest was an important consideration in enforcement proceedings. 

56       The applicant did not as had been ordered provide information about the “length of any such closure or other effect”.  The applicant’s counsel said the information could be obtained within 7 days.

57       The applicant’s counsel submitted that if the Full Bench imposed a financial penalty then pursuant to s84A(7) of the Act the Full Bench should order that the respondent pay the penalty and that it should be payable to the Crown in right of the State of Western Australia.  The applicant also submitted there was a “chasm between” the imposition of a fine and the commencement of proceedings under s73 of the Act pursuant to a direction.  It was submitted that a persistent or at least a repeated contravention of a serious nature approximate to that described in Re State School Teachers Union was a starting point in deciding if the commencement of deregistration proceedings should be directed.  That is a clear demonstration that an organisation would not act within the system contained in the Act was required before deregistration proceedings should be commenced.

(b) The Respondent

58       The respondent accepted that based on the First Additional Information Document there was widespread effect amongst schools in Western Australia. It was submitted however that it was difficult to assess the extent of the disruption.  The respondent’s counsel said there was a meeting in Perth which was attended by about 6000 teachers and meetings elsewhere attended by about 2000 members.  It was accepted that the respondent’s membership was at least 13177 as contained in the Officers and Membership Return lodged with the Commission in January 2008 (the 2008 Return) and “well in excess of half” of the membership had engaged in the stop work meetings.

59       The meeting in Perth ended at 10.25am with the intention that teachers could return to school by 11.00am or 11.30am.  The respondent did not provide any specific evidence or information about whether this had eventuated.  It was submitted that in the scheme of things the extent of the disruption to the academic programme of students and the inconvenience to parents and the wider public was not great.

60       Reference was made to the lack of any attempt to intervene in the hearing by the DET.  It was submitted that despite the decision of the Full Bench in Registrar v Metals and Engineering Workers’ Union – Western Australia and Others (1993) 73 WAIG 557 at 558-9, it could have attempted to do so.

61       Although it was accepted there was a serious breach of the order, it was again submitted that directing the applicant to issue a summons under s73 of the Act was a disposition of last resort.  It was submitted the possible dispositions of accepting the proffered undertaking or issuing a caution were adequate in the circumstances.  It was submitted that issuing a caution would not have any difference in substance to accepting the undertaking.

62       Reliance was placed on the lack of any relevant “record” or series of wilful contraventions in the face of an undertaking like that proffered.  It was also submitted that imposing a financial penalty was most appropriate for people or entities who were occasional users of the industrial relations system provided by the Act.  It was also submitted that even if the Full Bench thought the maximum financial penalty of $2000 was inadequate this should not cause it to more readily dispose of the application by directing a summons to be issued under s73.  Counsel accepted the respondent “certainly” had the capacity to pay a financial penalty (T41).  The respondent accepted the correctness of the submission by the applicant’s counsel as to who and by whom the payment of any financial penalty should be made.  The respondent’s counsel did not provide a clear response to a question about whether the proper construction of s73 was that the summons could be issued to show cause why a suspension of registration as opposed to a cancellation should not occur.

63       The respondent’s counsel also provided additional background to the respondent taking industrial action including the stop work meeting.  The presently existing industrial agreement was due to expire in February 2008 and the parties had been negotiating about a new agreement.  The DET had put an offer in December 2007 but this had been rejected by 90% of the respondent’s members.  A subsequent offer put by the DET in February 2008 offered inferior conditions.  Although it was accepted that the Commission had found there were additional discussions to be had, it was submitted the respondent’s members were justifiably frustrated and that this brought pressure to bear on the executive of the respondent.  It was submitted the decision to disregard the order of the Commission was not casually made.  It was argued the respondent’s object was to protect and advance the interests of it members and that the issue at stake was extremely important to its members.  The lack of any present offer was submitted to be extraordinary given the months of negotiations.

64       Counsel accepted however that the respondent could have sought a direction from the Commission under the “good faith bargaining” provisions under Division 2B of Part II of the Act, or if it was not satisfied with the order made by the Commission, filed a notice of appeal and made an urgent stay application under s49(11) of the Act.

Reserved Decision and Request for Additional Information

65       At the conclusion of the second day of the hearing the Full Bench reserved its decision. I subsequently requested, via a letter by my associate that the additional information about the length of any closure or other effect be provided.

The Second Additional Information Document

66       In response to the request on 11 April 2008 the applicant filed another document with the heading “Additional Information Filed by Applicant Pursuant to Order Made on the 27th March 2008” (the Second Additional Information Document).  The Second Additional Information Document said by way of background that the Director General of Education announced on the eve of the industrial action that principals who thought the number of their teaching staff who indicated they were taking industrial action was such that the adequate supervision of students was not assured, could close their school.

67       The Second Additional Information Document contained a table which showed the “work fractions” of full-time and part-time teachers absent on “strike leave” from school on 28 February 2008.  The contents of the table were obtained from information forwarded about teacher strike leave by school principals and recorded in the DET’s Human Resource Management Information System (Payroll).  The  table was :

_______________________________________________Work Number of Number of

Fraction Full-time teachers Part-time teachers

0.05-0.19 0 9

0.2-0.29 8 22

0.3-0.39 4 29

0.4-0.49 5 50

0.5-0.59 6392 1217

0.6-0.69 0 1

0.7-0.79 0 0

0.8-0.89 0 0

0.9-0.99 0 0

1.00 17 3

TOTAL 6426 1331

68       The respondent did not provide any submissions or information in response to the Second Additional Information Document.

Construction of s84A of the Act

(a) Methodology

69       The method of construction of the section I adopt is in accordance with what I said in Theiss Pty Ltd and Others v The Automotive, Food, Metals, Engineering, Printing & Kindred Union of Workers – Western Australian Branch and Others (2006) 86 WAIG 2495 at [54]-[57].

(b) The Nature and Purpose of Enforcement Applications

70       Section 84A provides for applications for “enforcement”.  However the purpose of the section is not just to enforce, in the sense of trying to coerce or ensure compliance with particular orders of the Commission or sections of the Act.  Importantly the focus of the section is also to reinforce the requirement for parties to comply with the Act and the orders of the Commission, and to allow the Commission to publicly admonish and take sanctions against transgressors.

71       As such a purpose of s84A is similar to an application for contempt of court.  (See Witham v Holloway (1995) 183 CLR 525 at 533, Australasian Meat Industry Employees’ Union and Others v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106-108, Construction, Forestry, Mining and Energy Union v BHP Steel (Ais) Pty Ltd (2003) 196 ALR 350 at [35]-[36] and Australian Competition and Consumer Commission v World Netsafe Pty Ltd and Another (2003) 204 ALR 537 at [10]-[11]).  Indeed the contravention of an order of a court is one of the classic examples of contempt.  Accordingly, although the focus of the Full Bench must be on the statutory regime contained in s84A of the Act, observations made by courts in the context of contempt are of some assistance.

72       The Act does not contain any separate process for dealing with a breach of an order as a contempt of court, save in the instances of the Industrial Appeal Court (IAC) and the President, “in the exercise of the jurisdiction conferred on him by this Act and when presiding on the Full Bench or sitting or acting alone…” (See ss92(1) and (4) of the Act).  The IAC and the President have the “same power to punish contempts of its power and authority as has the Supreme Court in respect of contempts of Court ...” (s92(1)).  Section 92(2) specifically says that a contempt may be punished by a fine, “without prejudicing the generality of the power…”.  The powers of the Supreme Court for a civil or criminal contempt include committal (meaning imprisonment) and the imposition of a fine.  Apart from any inherent limitations against excessive fines, there is no maximum to the fine that can be imposed (See Kennedy v Lovell [2002] WASCA 226 at [6]).  It is not clear why the legislature has drawn a distinction between the disposition of a breach of an order of the President, as a member of the Commission when acting alone or as part of the Full Bench and those made by other members of the Commission, given that the Commission is a court of record (s12 of the Act).  As I will elaborate a little later on there is also a different regime in place for dealing with a contempt, by amongst other things the breach of an order, in the Magistrates Court of Western Australia and the State Administrative Tribunal of Western Australia (SAT). 

73       The purpose of taking proceedings against someone for acting in breach of a court order are clear. In BHP Steel, Tamberlin and Goldberg JJ (with whom Moore J agreed) cited Mudginberri Station and said at paragraph [36]:

“The majority emphasised (at CLR 107) that the underlying rationale of the exercise of the contempt power was that it is necessary to uphold and protect the efficient administration of justice.  In the case of an imposition of a fine or where committal is ordered, the purpose is to protect the efficient administration of justice by demonstrating that the court's orders will and must be enforced.  If a court lacks the means to enforce its orders then they could be disobeyed with impunity and ultimately litigants would suffer and administration of justice would be brought into dispute: see Lowe & Sufrin, Borrie & Lowe's Law of Contempt, 3rd ed, 1996, p 4.  There is an important distinction between casual disobedience, where it may readily appear that the primary purpose of exercising the power is to vindicate the rights of the successful party, and instances of disobedience accompanied by public defiance, where the primary purpose of exercising contempt power is to establish the court's authority: see Mudginberri at CLR 108.”

74       Similarly, McHugh J in Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 said at [88]:

“If breaches of the orders of the courts were regarded as of little moment, respect for and observance of the law would inevitably deteriorate and, ultimately, pose a threat to social order.”  (Citing Mudginberri at 115); and see also Kirby J in Pelechowski at [147]-[149]).

75       The observation of McHugh J was applied by Heerey J in Mobileworld Communications Pty Ltd v Q and Q Global Enterprise Pty Ltd [2004] FCA 1200 at [22] and Spender J in World Netsafe at [11].

76       In my opinion these comments are apposite to this s84A application.  The fact that both Mudginberri Station and BHP Steel were cases of union industrial action in breach of court orders supports this.  These judicial comments establish that there is a public interest in applications for the “enforcement” of the disobedience of an order of the Commission (see Mudginberri Station at 107).

(c) The Section 84A(4)(b) Conference

77       I have earlier referred to the procedural requirement contained in s84A(4)(b) of the Act and the way in which it was fulfilled in the present application.  Although this subsection refers to the “amicable resolution of the matter to which the application relates”, the parties proceeded on the basis that this meant the enforcement application and not, in this instance, the industrial dispute between the DET and the respondent.  In my opinion this is correct.  The parties also agreed that despite any agreement between them as to the appropriate disposition of the matter, the Full Bench was not bound by this.  Again this is correct.

(d) Seriousness

78       If a failure to comply or contravention of one of the matters specified in s84A(1) is proved, s84A(4)(a) requires the “seriousness of the contravention or failure to comply” to be taken into account in dealing with the application.  It seems clear that the reason why the Full Bench must take into account “seriousness” is because there is a myriad of conduct which might comprise a failure to comply or a contravention covered by s84A.

79       Section 84A(1) applies to 5 different matters, being a contravention or failure to comply with:

(i) any provision of the Act;

(ii) an order or direction made under s66;

(iii) section 44(3) (a summons to attend at a compulsory conference);

(iv) a direction, order or declaration given or made under s32; or

(v) a direction, order or declaration given or made under s44.

80       In the present application there has been the contravention of an order of the Commission made under s44 of the Act.  In assessing seriousness the focus is on what the order required and how it was contravened.  

81       I have earlier set out the relevant submissions by the parties about how seriousness is to be determined.  In my opinion the question of seriousness needs to be looked at by reference to all of the relevant facts and circumstances.  I do not think that any narrow or compartmentalised view is appropriate.  For example I do not think there is necessarily a distinction between the manner of a breach and the consequences thereof or that the former is necessarily the primary focus of the section rather than the latter.  Instead I think the appropriate methodology is to take an overall view of seriousness on the basis of a synthesis of the context, facts and circumstances which are relevant in any particular case.  Different factors might be present or dominant in one case and not another.

82       This analysis and what follows is supported by cases on contempt and primarily those constituted by the breach of a court order.  Examples are World Netsafe, BHP Steel, Mobileworld Communications and Mudginberri Station.  In World Netsafe, Spender J at [16]-[17] set out principles to guide the “appropriate penalty”.  So too did Malcolm CJ (Murray and Steytler JJ agreeing) in Kennedy v Lovell at [14]ff, albeit in the different context of the failure to obey a summons issued by a Royal Commission.  I have found these helpful.  As to the relevance, the consequences of a contravention, in assessing seriousness, I am reinforced in the view I take by this observation of Spender J in World Netsafe at [17]:

“As always, in assessing the seriousness of a contempt, the practical consequence of the contemnor's failure to comply and its effect upon the effective administration of justice in the case in question is a relevant factor.”

83       Without intending to be exhaustive, in assessing the seriousness of a contravention of an order of the Commission, relevant facts and factors will usually be:

(i) The type of order which was contravened.

(ii) The circumstances in which the order was made.

(iii) The reasons why the contravention occurred.

(iv) Linked to (iii), the nature of the contravention; how it occurred and whether it was deliberate, unintentional or inadvertent.

(v) Linked to (iii) and (iv) whether there had been other breaches of the same order or related orders.

(vi) The consequences of the contravention upon:

(aa) The functioning of the Commission.

(bb) The public.

(cc) The other party to any industrial dispute.

(vii) The status of the contravener.

84       I will later follow this process of analysis in assessing the seriousness of the respondent’s contravention.

(e) Undertakings

85       The effect of an undertaking upon the appropriate disposition depends upon the nature of the undertaking, by whom it is given, and the nature and seriousness of the failure to comply or contravention.  I will later consider the respondent’s proffered undertaking but for present purposes it can be contrasted to a situation where, for example, a person largely through ignorance fails to attend when summonsed under s44 of the Act, and then undertakes to the Full Bench that he/she will attend the next hearing date.

86       The Registrar v McGlew (2006) 86 WAIG 400 illustrates the point.  There, Mr McGlew, an employee of a respondent employer was without his knowledge nominated by that employer as the appropriate person to be summonsed to represent it at a s44 conference.  Mr McGlew received late notice of the summons, was then advised by more senior employees to ignore it and by the time the matter came before the Full Bench the industrial dispute was settled.  The Full Bench decided it was appropriate to accept Mr McGlew’s undertaking “to comply with any future summons or similar order of the Commission requiring me to attend a conference or any other matter requiring my presence before the Commission”.

(f) Mitigation

87       Facts and circumstances of mitigation are those which make the contravention or failure to comply less serious or are otherwise relevant in reducing the extent to which the disposition is required to be punitive.  Again without attempting to be extensive, mitigatory factors of the second type can be:

(i) The provision of an apology or other expressions of remorse or public contrition.

(ii) A lack of relevant record of failures to comply or contraventions

(iii) Admissions of the contravention or at least relevant facts which deserve recognition by the Commission as indicating “the willingness of the offender to facilitate the course of justice” (Cameron v The Queen (2002) 209 CLR 33 at [14]).  The consequence of this will be the saving of the time and resources of the applicant and the Commission.

(iv) Related to (i) and where relevant a cessation of the contravening conduct or demonstration that the “lesson has been learned”.

(g) Permitted Dispositions

88       Section 84A(5) sets out what the Full Bench may do on the hearing of an enforcement application.  If the contravention or failure to comply is proved then the Full Bench may exercise any of the four powers set out in s84A(5)(a)(i)-(iii).  If not proved the Full Bench must dismiss the application (s84A(5)(b)).

89       If the contravention is proved then in considering which of the four ways in which the matter may be disposed of, the Full Bench must of course have regard to the three matters referred to earlier and set out.  In my opinion there is a gradation of possible dispositions or penalties which may be imposed.  The acceptance of an undertaking or the issuing of a caution is at one level, followed by the imposition of a financial penalty and then finally the directing of the applicant to issue a summons under s73(1) of the Act (a s73 direction).  Within the latter there is the prospect of the Full Bench making a direction that the applicant issue a summons for suspension for a period of time as opposed to deregistration.  The former would of course be a less serious disposition.

90       I accept the submission of the applicant that there is a “chasm” between the imposition of a financial penalty and issuing a s73 direction.  This is in part because of the low level of the maximum financial penalty.  I use the word “low” in both an absolutist and comparative way. In an absolutist sense the amount of $2000 is not a substantial penalty in 2008.  It is comparatively low when measured against the penalty which could have been imposed by the Full Bench in 1984, the financial penalties which might be imposed for the same transgression by other courts and tribunals in Western Australia or federally and the financial capacity of at least some organisations. As such, as I will endeavour to explain, there is a real question as to whether the purposes of the imposition of a financial penalty can be attained in all relevant cases.

91       The penalty has not been amended since s84A was first inserted into the Act in 1984.  Clearly the real value of and punishment and possible deterrent effect constituted by the imposition of a financial penalty of $2000 to an organisation or association in 1984 was much greater than now.  Since 1984 there have been many amendments to the Act by state governments of both political persuasions, but the financial penalty contained in s84A has been untouched.  I am not aware of any governmental policy that a breach of an order of the Commission is less serious now than in 1984.  It may therefore be that there has simply been an oversight in not increasing the penalty.

94       In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Kirby P (with whom Hope A-JA agreed) in a paragraph at page 314 emphasized that the purposes of “punishment” of someone that had committed a contempt were “deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way”.  This paragraph has been quoted with approval in other Australian state jurisdictions including by Malcolm CJ in Kennedy v Lovell at [7].  It is also consistent with the paragraphs I earlier quoted from BHP Steel and Pelechowski.  Additionally as the nomenclature suggests the imposition of a financial penalty is for the purpose of penalising the transgressor, when it is not appropriate to accept an undertaking, issue a caution or make a s73 direction.  As stated in the context of the criminal law, the purpose of a fine is ordinarily to “punish the offender” and should contain a “sting” (Perez v The Queen (1999) 21 WAR 470 at 482 per Owen Jin part quoting Sgroi v The Queen (1989) 40 A Crim R 197 per Malcolm CJ at 200-201; Wallwork J agreeing).

95       Given that the maximum financial penalty which can be imposed under s84A(5)(a) is $2000, this will not in all cases be sufficient to penalize or “sting” an organisation or association, act as a deterrent or in my opinion adequately denounce a failure to comply or a contravention.

96       I acknowledge that there are differences between the position of registered organisations and associations under the Act and litigants in the other courts mentioned above and the SAT.  In those courts and for the SAT the ultimate sanction for contempt is imprisonment.  An organisation or association cannot be imprisoned and for them the sanction of deregistration or suspension is severe.  But where a s73 direction is not appropriate, s84A(5)(a) of the Act contains a maximum financial penalty of $2000.  This is much less than can be imposed for a breach of an order of the Magistrates Court (which when constituted as the Industrial Magistrates Court is subject to appeals to the Full Bench), the SAT and the Supreme Court.  There has been no submission put to the Full Bench which would explain why this is so and the reason is not apparent to me.  One could ask rhetorically: “why is a breach of an order of a Commissioner less significant than that of the SAT or Magistrates Court”, or “why are parties, including organisations and associations, appearing before Commissioners in a more protected position than litigants in other courts and tribunals?”.  This was not addressed in these proceedings and so I do not think any more can be said about it on this occasion.

97       The Full Bench must of course dispose of the application within the penalties provided for in the Act.  I do think however that the Full Bench is justified in categorising the maximum financial penalty as low given the legislative and judicial comparisons I have referred to, the purposes of a financial penalty for the contravention of a court order and the economic capacity of some organisations or associations.  Accordingly I do not think the Full Bench should necessarily reserve a financial penalty of $2000 or something close to it for only the worst type of case not warranting a s73 direction.  A financial penalty of close to or at the maximum can be achieved by decreasing the differentiation in penalty that results from one type of case being less serious than another and giving less of a “discount” for mitigation. That is there will be a truncation of the impact, in dollar terms, of these two factors.

98       I do not accept the submission by the respondent that the imposition of a financial penalty is ordinarily more appropriate for someone who is an irregular participant in the Commission’s processes.  There is no reason why the purpose of imposing a financial penalty only applies to irregular Commission participants.  The fact that there is a greater maximum financial penalty for organisations and associations as opposed to others also tells against the correctness of the respondent’s submission.

99       Section 84A does not contain a set of criteria against which the Full Bench should assess whether to issue a s73 direction.  In my opinion however a s73 direction should only be made when the Full Bench is of the opinion that, given the contravention or contraventions before it and any record of previous misconduct by an organisation or association, there is a real prospect a Full Bench would suspend or cancel registration after a s73 hearing.  If there is not then in my opinion the option of a s73 direction should not be exercised.  The low maximum financial penalty does not increase the occasions when a s73 direction should be made.  This is because they are in sense different species of sanction.

100    I accept that ordinarily a s73 direction would be appropriate in cases where there has been an exhaustion of other possible dispositions in the past and/or a series of wilful and serious breaches of Commission orders and/or widespread public disruption of a serious or lengthy nature.  This is not to say however that an isolated occasion of a very serious contravention could not lead to a s73 direction.  The legislation does not provide any such limitation. 

101    In my opinion the observations about organisations made by the Full Bench Re Metropolitan Laundry Employees’ Industrial Union of Workers (1982) 62 WAIG 327 at 329 are apposite:

“Under the Act a society of employees, on application to the Commission, may be registered as a union.  Registration may not be authorised if such registration is not necessary or desirable or would not be likely to advance the purposes and objects of the Act.  On registration the union and its members are subject to the jurisdiction of the Western Australian Industrial Appeal Court and the Commission and to the Act and, subject to the Act, all its members are bound by the rules of the union. 

A society of employees is not obliged to seek registration as a union but having done so and been registered to advance the purpose and objects of the Act a union is obliged to conduct itself accordingly.  An object of the Act is to encourage employers and employees to have regard for the interests of the community and to provide a means whereby the public interest may be safeguarded.  That is given emphasis in section 73 where the safety, health or welfare of the community is at risk.  A union which operates in an industry involving the interest of the community where its health and welfare may be at risk has a particular responsibility.  Should such a union choose to act in a manner which is not likely to advance the purposes and objects of the Act it should not expect to retain registration.”

102    If an organisation or association demonstrates that it is not prepared to act in accordance with the industrial relations system of the state and comply with orders of the Commission then it cannot expect to retain the rights and responsibilities granted by the Act to represent its members.  This may be regarded as an overarching basis for deciding a s73 direction is the appropriate disposition.

Consideration and Determination

(a) Contravention Proved

103    In terms of s84A(5)(a) of the Act the contravention by the respondent is proved. It has been admitted by the respondent and is established by the evidence and information before the Full Bench.

(b) Irrelevant Matters

104    I think it should be made clear though that the present application and its disposition have nothing to do with the merits of the respondent’s pay claims.  That issue is not in any way before the Full Bench.  Secondly it is not in issue whether or to what extent there would have been in the absence of the order made by the Commission, any “right to strike” held by the respondent’s members.  The application is simply about the actions of the respondent in contravening the order of the Commission by, amongst other things, having the stop work meeting on 28 February 2008.

(c) Seriousness

105    This is to be assessed in accordance with the process of analysis earlier described.  The contravention is simple to discern in the present application.  At its most basic, the order required the respondent not to proceed with the stop work meeting on 28 February 2008.  The executive of the respondent met and decided to proceed with the meeting.  The respondent and its members then did so.

106    In this application the s84A process cannot be used to coerce the respondent to comply with an order, as the time for compliance is in the past.  The purpose of the application is as I have stated earlier; to denounce the conduct of the respondent and to reinforce the importance of the requirement that parties must comply with orders of the Commission. 

107    The respondent is a large well established public sector union.  It has been in existence for a long period of time and presently has in excess of 13,000 members.  I have cited above the 2008 Return figure of 13,177 members.  The 2007 Return cited 13,513 members.  The 2007 and 2008 Returns show that the President, Vice President and General Secretary and two other members of the executive have been executive members for in excess of 1 year.  It may therefore be inferred that they have some experience in acting for and on behalf of the respondent.  In the 2008 Return there were 19 people listed as members of the executive, including the President, Vice Presidents and General Secretary.  The President, Senior Vice President and General Secretary were listed as being full time employees of the respondent.  Of the remaining 16 executive members, 15 were listed as being teachers and one a lecturer. In summary the respondent is a large and well resourced organisation and ought to know the obligations and responsibilities which are the concomitant of its rights under the Act. 

108    The respondent’s members and therefore the respondent have a particular responsibility as they work to serve school children, a very vulnerable section of the community.  In addition, if they engage in stop work meetings this necessarily inconveniences the parents and carers of school children. This is part of the background against which the seriousness of the contravention by this respondent needs to be assessed.

109    The reasons of the Commission which I have summarised earlier set out the immediate context within which the order was made.  As stated earlier this affects the seriousness of the contravention.

110    The relevant context, taken from the Commission’s reasons for decision, was:

(i) The parties were in the process of negotiating a new agreement.

(ii) To this end a bargaining period under the Act had been commenced and was pending.

(iii) The Commission did not record any complaint by the respondent about the “good faith” of the DET in bargaining, nor about the lack of provision to it of the Twomey report.

(iv) The respondent conceded that negotiations were not at an end.

(v) The DET said that in the week following they would provide a revised offer to the respondent.

(vi) The DET said that the planned industrial action could however jeopardise this.

(vii) The Commission did not record any submission by the respondent that there was a clamour from its membership for the holding of the meeting, either at all or during work hours.

(viii) The concerns of the DET, that the stop work meeting would place in jeopardy its capacity to comply with its duty of care, the provision of educational programmes and the disruption to the public was placed squarely before the Commission.

(ix) Importantly, having regard to this context, the Commission ordered the stop work meeting must not occur and the respondent should take particularised steps to ensure this.

(x) The primary reason for the order was because of “the public interest and to prevent the further deterioration of industrial relations …”.

111    All of this demonstrates that the conduct of the respondent in breach of the order was most serious. 

112    So too does the nature of the contravention and the way in which it occurred. The order was made on 25 February 2008.  The planned stop work meeting was scheduled for 28 February 2008.  If the respondent then thought there was an error in the making of the order a notice of appeal could have been urgently filed and an application made under s49(11) of the Act for a stay of the operation of the Commission’s order.

113    The full executive of the respondent met on 26 February 2008 and made a very deliberate decision to defy the order made by the Commission.  This was announced to both the DET and the members of the respondent.  The executive did not inform the members that if they were to participate in the stop work meeting they would be in breach of the order as worded.

114    The contravention did not occur because the members, having been fully informed of the circumstances, pressed the executive to do so.  In my opinion neither the executive’s communication to the members nor the DET set out any good reason for the contravention.  To reiterate, this is not to say that the respondent’s pay claims are or are not meritorious – even if they were it did not in any way excuse a contravention of an order by the Commission as a court of record.

115    The contravention of the Commission’s order was of a type described by the High Court in Mudginberri Station as “contumacious”, meaning wilful or deliberate, rather than “casual, accidental or unintentional” (see 112-113).  It was also accompanied by some “public defiance” which has been recognised, in contempt proceedings and in my opinion applicable to s84A applications, as more deserving of a penal disposition.  (See for example BHP Steel at [36] and [38] and Maniam per Kirby P at 315).

116    In addition if there was a need for the respondent and its members to meet to enable developments about negotiations for the new agreement to be explained and discussed, there was no reason why this had to occur at the scheduled time or involving a stop work meeting.  It could have taken place outside school hours, for example at 4.30pm on a week day (given that the respondent’s members were not according to Directive 1 participating in out-of-school hours activities) or on a Saturday morning.  The contravention was therefore entirely preventable and unnecessary to achieve the espoused purpose of the meeting. 

117    It is also difficult to see what good purpose was served by going ahead with the stop work meeting.  The respondent did not submit there was any progress made in the negotiations with the DET because of the meeting and indeed the respondent had accepted before the Commission that negotiations were still pending.  The respondent knew of the concerns of the DET and the reasons why the Commission made the order it did.  They were however disregarded in a fairly cavalier fashion save for the giving of some notice to the DET that the stop work meeting in contravention of the order, was going ahead.

118    I accept the information provided by the applicant about the nature and extent of the disruptions to school programmes and inconvenience to parents, carers and students.  If there is conflict between the information provided by the applicant and the respondent I rely on that of the applicant.  This is because the information was more systematically obtained and collated and placed in documents before the Full Bench.  The information from the respondent’s counsel was at best inexact and anecdotal and there was no attempt to place it in any formal way before the Commission, either in sworn or other documentary form.

119    The disruption to schools and the public was significant and widespread albeit confined to one day.  The Second Additional Information Document establishes to my satisfaction that the disruptions caused by either full time or part time teachers being absent from school lasted half to a bit over half a day.  The fact that 35 schools were closed for the whole day was significant, even though this is not a high percentage of all schools in the State.

120    As I have said the order of the Commission was quite deliberately flouted.  There was no misunderstanding of the terms of the order which were clear and understood by the respondent.  The “EBA Update” recorded that the respondent’s executive received advice before making the decision to contravene the Commission’s order.  Whilst the nature of the advice was not revealed in the hearing, this reinforces the point that the contravention was informed and deliberate.

121    As set out earlier the respondent accepted before the Full Bench that “compliance is essential for the efficient and proper exercise of the Commission’s jurisdiction as a court of record and industrial tribunal”.  There was no submission that this was not appreciated by the respondent’s executive at the time it decided to contravene and direct the contravention of the order and indeed it must have been.  The order of the Commission was treated as something which the respondent thought it could choose to ignore if the “stakes were high”.  This makes the contravention all the more serious.

122    The system of resolving industrial relations disputes by the use of the procedures contained in the Act and utilising the Commission as an “independent umpire” is well understood, accepted and ordinarily respected by the community.  If a party thinks that a decision made by the Commission is wrong, appeal procedures exist.  In this instance though the respondent participated in a hearing, did not like the outcome, walked away and in a very planned fashion thumbed its nose at the Commission and did the opposite of what it was ordered to do.  The respondent, with some defiance, ignored the concerns of the DET and the Commission about the consequences of the planned stop work meeting.  The Full Bench cannot in any way condone the respondent’s behaviour.

123    The nature of the profession which the overwhelming majority of the respondent’s executive and ordinary members engage in has also caused me some disquiet, as I expressed at the hearing.  They are teachers of government school students in Western Australia.  It is at least strongly arguable that in their public collective acts teachers should set an appropriate example for their students; even when they are acting as executive and ordinary members of an organisation, in an industrial dispute, rather than teachers as such.  Here the behaviour which occurred because of the direction of the executive and the actions of the members of the respondent, which students could clearly observe, modelled that rules and decisions of courts and tribunals could be ignored if “the stakes” were considered to be high and the decision not liked.  The proper processes of appeal could be side-stepped.  The stance of the executive of the respondent could not in my opinion be characterised as some noble defiance of a harsh or unjust law or order or arguably commendable civil protest.  Indeed the executive did not in the letter to the Director-General or the EBA Update so characterise their actions. In my opinion the executive’s conduct smacked of an attitude that expedience was more important than following the law.  Presumably if school students did not follow school rules or the “umpire’s decision” it would not be regarded as unacceptable conduct.  Because of this the executive and members of the respondent in my opinion set a very poor example. “Do as I say and not as I do” has not in my opinion been accepted as a sound educational motto.  When I raised this issue on the first day of the hearing, counsel for the respondent said, that “the nature of the work the teachers do … might be something that would go to seriousness but it also could be raised in mitigation” (T20).  I cannot accept the latter could possibly be so in the circumstances of this case. 

124    In all the circumstances and even ignoring the argument referred to in the previous paragraph, I characterise the contravention as very serious.

(d) Mitigation

125    It is difficult to see that there is mitigation of much substance in the actions of the respondent.  The seriousness was somewhat lessened by the warning given to the DET that the stop work meeting was still going to be held and the short duration of the disruption to the educational programmes of the DET and to the school children and public.  This does not in any way lessen however the seriousness of the manner or circumstances in which the contravention occurred. 

126    I accept that the respondent has not in recent times had any history of breaching orders of the Commission albeit this is no more than what would be expected of the respondent. I accept though that this is mitigatory.

127    I have earlier referred to Re State School Teachers Union.  That was not an instance of a s84A application but the deregistration proceedings were taken partly on the basis of contraventions of orders of the Commission, which were admitted by the respondent (see pages 33 and 35). These contraventions occurred in the context of the respondent engaging in industrial action and rolling strikes to support the wage claims of its members.  The hearing of the application and the decision of the Full Bench not to deregister the respondent occurred in December 1990 but the conduct which led to the application was in the last third of 1989. The respondent acknowledged that it contravened Commission orders and had “failings” in September and October 1989. It submitted though that since then it “demonstrated quite clearly its commitment to its responsibilities and obligations under the Act” (page 34).  At page 35 Sharkey P for the Full Bench described this as the “rehabilitation” of the respondent.  Sharkey P said that the actions of the respondent were contrary to the public interest, disruptive, not justified and absent strong mitigating factors which were then set out, would have justified deregistration or more likely suspension because of the “sheer irresponsibility” of what occurred.  The behaviour of the respondent was described as “serious and defiant and quite inept.  It requires serious treatment” (page 35).

128    I think Re State School Teachers Union is of some relevance even though its impact is greatly lessened by the errant conduct having occurred about 19 years ago.  Nevertheless the respondent does not come before the Full Bench as an organisation which has never previously been the subject of proceedings which were taken because of a contravention of Commission orders.  Although s84A proceedings were not then taken, the contraventions of orders were admitted.  The adjectives used by Sharkey P to describe the actions of the respondent as serious, defiant, irresponsible, disruptive and contrary to the public interest echo how I would describe the conduct of the respondent in this application.  This adds to the relevance of Re State School Teachers Union in that the actions taken were broadly similar to those which have occurred now.  There was in that application at least an implicit promise to abide by the Act in the future, which has now been broken.  It could be said that the present members of the respondent and its executive should not be saddled with any baggage from what a different membership and executive did 19 years ago.  I acknowledge there is something to that argument, but by the same token the present membership and executive rely on the lack of any other previous s84A contraventions in mitigation, even though they are not personally responsible for this. It is primarily the past conduct of the organisation which must be taken into account and not that of the executive or members thereof. As I have said then, Re State School Teachers Union has some relevance, but the extent of this is comparatively minor because of its age.

129    There is evidence of some contrition by the respondent.  Although an apology has not been forthcoming to the Commission, the DET or the public, the respondent has now acted consistently with the Act to appeal against the order made by the Commission and to seek a variation of it.  Additionally regard must be had to the respondent’s admission of the contravention.  This has saved the applicant and the Full Bench time and resources in not having to conduct a hearing in which the contravention was in issue.  In the circumstances however this has limited mitigatory effect given the nature of the contravention was such that it could be easily proved.  Also the respondent’s counsel, no doubt on instructions, took issue with gaps in the information before the Full Bench rather than willingly trying to fill them.  In part this caused the Full Bench to make orders for the filing of additional information.  This has added to the time and use of resources necessary to resolve the application.

130    I will refer to the proffered undertaking below.

(e) Non Intervention by the DET

131    I do not accept the respondent’s submission that anything can be gleaned from the DET not attempting to intervene in the hearing.  The industrial dispute is ongoing and it can be inferred that the DET may well have thought intervention would aggravate things.  Additionally its position was adequately put in the reasons of the Commission when making the order and by counsel for the respondent in these proceedings.  Also the decision in Registrar v Metals and Engineering Workers’ Union – Western Australia was against a successful intervention application.

(f) The Proffered Undertaking and the Applicant’s Position

132    The Act requires that regard be had to the proffered undertaking. In doing so in this case it must also be taken into account that the applicant submits that the acceptance of the undertaking is the appropriate disposition.

133    The undertaking sets out the intent of the respondent for the future. It is of some mitigatory effect in that it is indicative of contrition and the respondent having “learned its lesson”. This is balanced by the fact that if accepted it would be an undertaking to do more than is required in any event.  In that sense it lacks substantive content.

134    I accept that the stance of the applicant is of some significance, having regard to his status and position in the State’s industrial relations system. 

135    In my opinion however the acceptance of the proffered undertaking is not the appropriate disposition. It would not in my opinion demonstrate the level of disapprobation of the Full Bench to the manner, circumstances and effects of the contravention or reflect the importance of the public interest. It would not send an adequate message to registered organisations and the public about the requirement to comply with the orders of the Commission.

136    In addition the applicant’s counsel has not explained to my satisfaction why an acceptance of the proffered undertaking is the appropriate disposition given his arguments about the seriousness of the contravention.  In my respectful opinion there is something of a gap in the submissions made.  I do not think the conclusion is consistent with the arguments which precede it.

(g) Issuing a Caution 

137    For the reasons I have set out in the previous but one paragraph I also do not think issuing of a caution is the appropriate disposition 

(h) Financial Penalty or Section 73 Direction

138    This leaves as possible dispositions the imposition of a fine, to a maximum of $2000 or issuing a s73 direction. 

139    Having regard to all the relevant facts and circumstances as described, I do not think that this is an appropriate case where a s73 direction should be made.  Although the contravention is very serious the stage has not at present been reached where the respondent fits the criteria previously outlined.  That is I am not presently of the opinion that a Full Bench could reasonably conclude the respondent is not prepared to act in accordance with the industrial relations system of the State and should therefore be denied, permanently or temporarily, the privilege of being registered under the Act.  The proffered undertaking is relevant in reaching this conclusion.  At this point in time and for this contravention the appropriate disposition is in my opinion a financial penalty.

(i) Amount of Financial Penalty

140    In Furniture Trades Sharkey P at page 3289 said:

“However, because this was one event, and because an attack on the registration of an organisation should not occur until other options have been exhausted, we will impose the maximum penalty of $2 000 rather than make an order under section 84A(5)(iii) on this occasion.”

141    I note that the maximum financial penalty was there imposed despite there being “one event”.  I also note that in that case no undertaking was proffered. This is a distinction of some significance given what I have said about the importance of the proffered undertaking in demonstrating contrition and intentions for the future.

142    In my opinion having regard to the seriousness of the breach, the proffered undertaking, factors of mitigation and all other relevant circumstances as discussed, a financial penalty of close to the maximum is required.  The major factors of mitigation are the short duration of the disruption to schools, school children and the public, the warning which was given to the DET, the admission of the contravention and the lack of any recent record. The fact that the applicant argues the Full Bench should accept the proffered undertaking is also material in assessing the amount of the financial penalty.

143    As I have said earlier the maximum financial penalty is comparatively low.  If $2000 is divided by the membership of the respondent the amount of the fine is about $0.15 per member.  As previously expressed the purposes of the imposition of a financial penalty are to punish with a bit of a “sting”, to deter and to denounce the conduct.  It is difficult to see that even the maximum fine can achieve these aims for this contravention and organisation.  Despite this, I think the Full Bench needs to do the best that it can, which in this case leads to the imposition of something near the maximum penalty.

144    In all the circumstances I have come to the conclusion that the appropriate financial penalty is $1500.

Minute of Proposed Order

145    The financial penalty of $1500 should be paid by the respondent to the State of Western Australia.  To ensure that the order is enforceable it is necessary to provide some time limit on the payment of the penalty.  In my opinion 3 days is appropriate.

146    In my opinion the orders which should be made are that:

1. The contravention is proved.

2. The respondent is within 3 days to pay a penalty of $1500 to the State of Western Australia.

147    A minute of proposed order should be issued in these terms.  If either party submits some other time for payment should be ordered then submissions can be made in writing on the issue within 3 days of the publication of the minute, or a request made for a speaking to the minute.

BEECH CC: 

148   The State School Teachers’ Union of WA Inc (SSTU) admits that it failed to comply with the order of the Commission in matter C 4 of 2008.  The order required the SSTU, its officers, agents, employees and members to lift a directive and cease the foreshadowed industrial action in the form of a stop work meeting to be held on 28 February 2008 in relation to the negotiation of a new agreement.  The respondent did not lift the directive.  It did not cease the foreshadowed industrial action.  Neither did it take reasonable steps to immediately direct its members to comply with the order. 

149   In fact, two days after the order issued the executive of the SSTU determined that its directive stood and the stop work meeting on 28 February 2008 would go ahead (Exhibit 2).  The information sheet sent to its members acknowledged the Commission order, stated that the executive had met that day, that it had given the order “due consideration and receive[d] advice on this matter”.  It nevertheless determined that the stop work meeting would go ahead.

150   Section 84A(4) of the Act provides:

“(4) In dealing with an application under subsection (1) the Full Bench — 

  (a) shall have regard to the seriousness of the contravention or failure to comply, any undertakings that may be given as to future conduct, and any mitigating circumstances; and

  (b) before proceeding to a hearing of the application, shall invite the parties to the application to confer with it, unless in the opinion of the Full Bench such a conference would be unavailing, with a view to an amicable resolution of the matter to which the application relates.”

151   In relation to the seriousness of the contravention or failure to comply, it is difficult to find a more blatant example of a union defying a Commission order, and none was cited to the Full Bench in these enforcement proceedings.  The submissions made on behalf of the Registrar stressed that the breaches of the order were not inadvertent, but rather considered and wilful, and I consider those submissions to be correct. 

152   Mr Borgeest, who appeared on behalf of the SSTU sought to place the union’s actions into a context which included 90% of the union’s members rejecting an offer which had been put by the Director General.  He submitted that the union’s members had since experienced considerable frustration and no progress on a log of claims which had been submitted to the Director General in September 2007 and thus there were strong pressures on the union. 

153   The SSTU submits that the contravention occurred in the context of a bargaining period and it accused the Director General of the Department of Education and Training of failing to bargain in good faith.  It submitted that at the time Harrison C made the order, no new offer had been made since the rejection by the vote of employees conducted in December 2007.  It believes the Director General has not released relevant information to the SSTU.

154   However this prosecution, and my view of the appropriate penalty for the SSTU’s breach of the order, is not about the 90% of the union's members who rejected an offer which had been put by the Director General.  Nor is it about those teachers who stopped work and who merely obeyed the directive of the executive of the SSTU.  Neither is it a comment about the merits or otherwise of the teachers’ claims or the Director General’s response in this present campaign. 

155   These proceedings are about the decision of the executive to ignore a Commission order.  Although unions and employers, and employees and employers, are expected to bargain for improvements in conditions of employment, and not to have those improvements arbitrated by the Commission unless it is a last resort, bargaining is not without rules.  The Commission retains the power to decide whether particular industrial action should be permitted to occur, particularly having regard for the public interest. 

156   The SSTU is not in a position significantly different from many, if not most, unions after they have served a log of claims.  As noted by Harrison C in the preamble to the order, the SSTU had initiated a bargaining period under s42 of the Act.  If the SSTU is able to show that the Director General is bargaining in bad faith those same provisions should have been used by the SSTU to seek orders from the Commission against the Director General.  They did not do so and there is no explanation before us why they did not do so. 

157   Instead the SSTU called a stop work meeting to be held on 28 February 2008.  In doing so it engaged in similar behaviour to the bad faith of which it accuses the Director General.   It inevitably led to the Director General seeking orders against the SSTU.

158   The SSTU had an opportunity to put to the Commission reasons why the order which eventually issued should not issue.  The order having issued, it was open to the SSTU to appeal the order.  It did not do so and the order remained in force.  To simply defy it was irresponsible. 

159   In my view, if as submitted to us one of the objects of the SSTU is to further the interests of its members, it is difficult to find a better example of a union failing in that objective by openly defying an order of the Commission.  It not only puts it on the path to the deregistration of the SSTU itself, it has inevitably led to the union being distracted from its campaign on behalf of its members while it deals with the serious matter of being prosecuted for breaching the order.

160   I accept, as the SSTU submits, that there are degrees of seriousness.  In doing so, I also acknowledge that the effect of the breach was confined to a relatively short period of time one Thursday morning.  It nevertheless caused a significant disruption, on the material before the Full Bench, to the State’s education system, and to an unspecified number of students and their parents on that particular day. 

161   Also, and as the Commissioner who made the order noted, the Commission is obliged to consider the public interest.  In the context of the information before the Full Bench which suggests that there were other means available to the SSTU to directly inform its members of the progress, or lack of progress in the negotiations on their behalf, Harrison C was correct, in my view, to hold that it was not in the public interest for the stoppage to go ahead on that particular day at that particular time. 

162   The Full Bench is also to have regard to any undertakings that may be given as to future conduct.  The SSTU has undertaken that it will in the future comply with orders of the Commission.   That is a proper undertaking, and significantly, it is an undertaking which has been accepted by the Registrar as the appropriate resolution of this prosecution.  The Act requires the Full Bench before proceeding to a hearing of the application to invite the Registrar and the SSTU to confer with it with a view to an amicable resolution of the matter.  While an undertaking by a union to do what it was obliged to do anyway may be of little weight in these circumstances, in this case, the fact that the parties have reached an amicable resolution is to be given due weight and I do so. 

163   In giving consideration to penalty, the options open to the Full Bench under s84A(5)(a) are:

“(a) accept any undertaking given; or

(b) by order, issue a caution; or

(c) impose such penalty as it considers just but not exceeding $2,000 in the case of an employer, organisation, or association and $500 in any other case; or

(d) direct the Registrar or a deputy registrar to issue a summons under section 73(1).”

164   I note that the decision of the SSTU executive to defy the order was taken “after careful and due consideration” of the order (Exhibit 1).  I conclude that the executive did not regard the range of penalties in s84A(5) to be a sufficient reason to obey the order.  That shows a complete disregard for the State IR system and their privileged position within it.  The executive’s decision will only strengthen the arguments of those in the community who wish to have industrial relations dealt with by the civil courts with powers to punish breaches of orders by way of contempt or even proceedings against individual union members. 

165   In my view, the conscious and deliberate decision of the executive of the SSTU to flout an order of the Commission is far more serious than a circumstance where accepting an undertaking or issuing a caution would be appropriate.  In my view, the appropriate penalty for this first occasion is a fine.  The maximum fine is $2,000 which is hardly a significant sum of itself, as was observed during the course of the hearing. 

166   Given that:

• an agreement has been reached between the Registrar and the SSTU which is for the minimal position of accepting an undertaking that the SSTU will in the future comply with orders of the Commission; and
• that this was a single stoppage of relatively limited duration,

I consider an appropriate penalty is $1,500 which is three-quarters of the maximum fine under s84A of the Act.  I agree that the penalty should be paid within 3 days of the order to issue in this matter.

SMITH SC:

167   The circumstances of this matter are set out in the reasons given by the Acting President and the Chief Commissioner.

168   I agree for the reasons given by the Acting President that the purpose of s84A of the Act is similar to applications for contempt of court.  The purpose of s84A proceedings is to protect the efficient administration of the Commission by enforcing its orders.  The Full Bench does so by the imposition of a penalty on a party to an order who breaches the terms of that order.  The intention is to compel obedience of orders made by the Commission.

169   In matters involving industrial action, without obedience of orders made by the Commission under s44(6)(ba) and s32(8) of the Act public confidence would be lost in the Commission’s ability as an independent umpire to give such directions and make such orders as will in the opinion of the Commission:

(a) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved the matter;

(b) enable conciliation or arbitration to resolve the matter; or

(c) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter.

170   Whilst I agree that in assessing the seriousness of a contravention of an order of the Commission the factors the Full Bench would usually have regard to are the matters set out in paragraph [83] of the Acting President’s reasons for decision, I am of the opinion that the most important factor to be considered in imposing a penalty under s84A is whether the party who breached the order did so wilfully or deliberately rather than carelessly, accidentally, negligently, in haste or unintentionally.

171   In this matter the respondent directed its members to attend a stop work meeting in defiance of the order made by the Commission.  It did so after careful deliberation of the terms of the order.  I agree with the Acting President’s finding that the contravention of the order was “contumacious” as the respondent’s action in doing so through its executive was wilful and deliberate.

172   I am of the opinion however that this breach should not result in the penalty of the issue of a s73 of the Act direction to the Registrar to issue a summons under s73(1).  Such a penalty should only be contemplated if there is a real prospect that a Full Bench convened under s73 would seriously contemplate suspension or cancellation of the registration of an organisation.  In this matter as there is an absence of a series of breaches or sustained and protracted industrial action resulting in serious disruption to the public or industry, action under s73 may have little prospect of success.

173   I agree that the imposition of a fine is an appropriate penalty in this matter as the deliberate nature of the breach of the order takes the seriousness of the breach out of the range of an undertaking or caution.  I am not of the view however that a penalty close to the maximum fine should be imposed as I am satisfied that there are mitigating circumstances.  Firstly, although no apology has been given, importantly the respondent has given an undertaking to comply with orders of the Commission in the future.  Secondly, it admitted the breach at an early stage of the proceedings.  Thirdly, no s84A proceedings have previously been brought against the respondent.  Whilst the respondent was found to be in breach of orders made by the Commission approximately 19 years ago, in my opinion, that conduct is too remote in time to be considered.  Fourthly, the stoppage of work in this matter was for a limited duration that affected the attendance of students at school for one day.  In my respectful opinion whether the maximum fine which can be imposed under s84A is an adequate amount, is a matter for Parliament.  Courts and Tribunals are bound to apply the law as it stands.  When one has regard to the fact that the maximum fine that can be imposed by the Full Bench under s84A is $2000 and having found that there are mitigating circumstances, in my opinion, it is appropriate to then consider the discount to be given for those mitigating circumstances.  In my view the fine should be calculated by starting from the maximum and then considering the circumstances of the breach and the mitigating factors to reach an appropriate amount.  To do otherwise leads to an analysis of whether the maximum amount is adequate.  In this matter I do not think that the circumstances are of the most serious kind to justify the maximum because there are mitigating factors.  I am however of the opinion that the totality of the circumstances of the breach together with the mitigating circumstances place the breach in the category of a fine towards the higher end of the scale.  Consequently when regard is had to all of circumstances of the breach and the mitigating factors set out above I would apply a discount of 25 percent to the maximum amount of a fine that can be imposed under s84A.

174   For these reasons I agree that an appropriate penalty is the imposition of a fine of $1500 to be paid within 3 days.