WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2008 WAIRC 01393

FINAL WRITTEN

SUBMISSIONS

RECEIVED : MONDAY, 8 SEPTEMBER 2008

DELIVERED : THURSDAY, 11 SEPTEMBER 2008

FILE NO. : FBM 2 OF 2008

Applicant

AND

Liquor, Hospitality and Miscellaneous Union, Western Australian Branch

Respondent

CatchWords:

Industrial Law (WA) – Application by Registrar under s 84A of the Industrial Relations Act 1979 (WA) for enforcement of an order of the Commission – hospital services assistants (HSAs) – work ban on attending “Code Black” incidents - respondent in breach of order to direct members to and lift work ban for period of six weeks – contravention admitted - statutory framework of enforcement applications – factors to consider – lack of an undertaking - seriousness of contravention – circumstances in which order made – reasons for contravention – safety considerations of HSAs – nature of the contravention - respondent did not instruct members to comply with order – contravention wilful and deliberate – order in effect contravened each time a HSA did not attend Code Black due to the ban – consequences of contravention - duration – risk to public safety – status of contravener – mitigation - no prior record of contravention of Commission orders – admission of breach – deciding appropriate disposition - extrinsic materials - application of The Registrar of the Western Australian Industrial Relations Commission v The State School Teacher’s Union of WA (Incorporated) (2008) 88 WAIG 333 - role of the Full Bench in statutory enforcement scheme - maximum financial penalty – fixing appropriate financial penalty - consideration of mitigating factors in fixing financial penalty - financial penalty imposed.

Legislation:

Acts Amendment and Repeal (Industrial Relations) Act (No 2) 1984 (WA)

Criminal Procedure Act 2004

Hospital and Health Services Act 1927 (WA)

Industrial Relations Act 1979 (WA) – s6, s6(ab),  s6(ad), s6(ag), s6(e), s6(f), s7, s26(1)(c), s32(8), s41, s44, s44(6)(ba)(i), s44(7), s49(11), s49F, s49O, Part II Division 4: s53-s59; s60, s61, s62, s63, s64, s64A, s66, s69, s70, s70(3), s71, s71A, s72, s72A, s72B, s73, s73(1), s77(2)(e), s78, s80(1), s80(3), s82, s83(8), s83B(10), s83D, s83E, s83E(1), s84A(1)(b), s84A(3), s84A(4), s84A(4)(a) s84A(4)(b), s84A(5), s84A(5)(a), s84A(5)(a)(iii), s84A(7), s84A(8), s92, s92(1), 92(3), 92(4), s96C, s96D, s96E, s96J(1), s96J(4), s97XY, s102(3) 

Interpretation Act 1984 (WA) – s19, s19(1), s19(1)(a), s19(1)(b)

Occupational Safety and Health Act 1984 (WA) – s19, s26

Result:

Contraventions proved, financial penalty imposed

Representation:

Counsel:

Applicant : Ms R Hartley (of Counsel) 

Respondent : Mr M Aulfrey (of Counsel)

Solicitors:

Applicant : State Solicitor for Western Australia

 Respondent :  Not applicable

Case(s) referred to in reasons:

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

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483

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

Cameron v The Queen (2002) 209 CLR 33

Carlingford Fleet Pty Ltd v Sylvania Holdings Pty Ltd [2007] NSWSC 827

Chief Executive Officer, Department of Agriculture and Food v Ward (2008) 88 WAIG 156

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

Director-General of the Department of Fair Trading v Yang [2002] NSWSC 754; 132 A Crim R 438

Fothergill v Monarch Airlines Ltd [1981] AC 251

Lauritsen v The Queen [2000] WASCA 203

Markarian v The Queen (2005) 228 CLR 357

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

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85

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

Prothonotary of Supreme Court of New South Wales v McCaffery [2005] NSWSC 1237

R v H (1980) 3 A Crim R 53

R v McEachran [2006] 15 VR 615

R v Oliver (1980) 7 A Crim R 174

R v Ronen (2006) 161 A Crim R 300

Registrar in Equity v Froome [2001] NSWSC 1029

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

Reynolds v Wilkinson (1948) 51 WAR 17

Root v MacDonald 157 NE 684 (1927); 54 Am LR 1422 (1927)

Stacey v Civil Service Association of Western Australia (Inc) (2007) 87 WAIG 1229

The Queen v Peterson [1984] WAR 329

The Queen v Raad [2006] VSCA 67; (2006) 15 VR 338

The Queen v Tait [1979] 46 FLR 386

The Registrar of the Western Australian Industrial Relations Commission v The State School Teacher’s Union of WA (Incorporated) (2008) 88 WAIG 333 (Re SSTU)

The State School Teachers’ Union of WA (Incorporated) v Director-General, Department of Education and Training (2008) 88 WAIG 698

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

Veen v The Queen (No 2) (1988) 164 CLR 465

Witham v Holloway (1995) 183 CLR 525

Wong v The Queen (2001) 207 CLR 584

Wood v Galea (No 1) (1995) 79 A Crim R 567

Yates v the State of Western Australia [2008] WASCA 144

Case(s) also cited:

Attorney-General (UK) v Times Newspapers Ltd [1974] AC 273; [1973] 3 WLR 298; [1973] 3 All ER 54

Griffiths v The Queen (1977) 137 CLR 293

R v Breckenridge [1966] Qd R 189

R v Bruce [1971] VR 656

R v Hawkins (1993) 67 A Crim R 64

R v Ryding (1971) 1 SASR 408

Re Dunn [1906] VLR 493

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

Reasons for Decision

RITTER AP:

Introduction

1          This is an application for “enforcement” against the respondent under s84A of the Industrial Relations Act 1979 (WA) (the Act).  The respondent is an organisation of employees registered under the Act.  The purpose of the present application is not to coerce the respondent into complying with the order.  That is because the dates before and during which the respondent had to take actions under the order have passed.  The applicant seeks to “enforce” an order made by the Commission on 1 February 2008 in application C20 of 2007, in the sense of seeking to have the respondent dealt with for two contraventions of the order. 

2          The parties to application C20 of 2007 were the Minister for Health (the Minister) and the respondent.  It was about a dispute involving the employment of Hospital Service Assistants (HSAs) who were members of the respondent, and worked at Sir Charles Gairdner Hospital.  Sir Charles Gairdner Hospital is a public hospital in Nedlands, Western Australia which was established as such under the Hospitals and Health Services Act 1927 (WA).  (I will refer to this as “the hospital” although in some witness statements and documents which are quoted it is called “SCGH”.  I will also at times refer, for ease of reference, to “the hospital” when it would strictly be more accurate to refer to the hospital as bound by the decisions of the people who managed it, in relation to the subject matter of the dispute.  It was not suggested in C20 of 2007 or the present proceedings that any of the relevant actions of management at the hospital were other than for and on its behalf).

3          Application C20 of 2007 commenced with an application by the Minister for a compulsory conference with the respondent before the Commission.  The nature of the dispute will be later set out.

The Statutory Framework – Enforcement Applications

4          Relevant to the present application are sub-sections 84A(1), (3), (4), (5), (7) and (8) of the Act which are as follows:

“(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.

…

(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.

…

(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.”

The Statutory Framework - Organisations

5          Registered organisations play a pivotal role in the industrial relation system in Western Australia created by the Act.  They have particular rights and privileges and concomitant duties and responsibilities.  I discussed the role of organisations under the Act in Stacey v Civil Service Association of Western Australia (Inc) (2007) 87 WAIG 1229 at [263]-[267].  Although the context of that discussion was an application under s66 of the Act about the alleged contravention of the rules of an organisation what I said is relevant to the present application.

“263 In my opinion the nature and limits of the powers contained in s66 must be understood from considering the text and context of the section within the Act as a whole.  The lynchpin of the section is the “rules of the organisation”.  Section 7 of the Act states that an “organisation means an organisation that is registered under Division 4 of Part II”.  Division 4 of Part II of the Act is headed “Industrial organisations and associations” and comprises ss52-73 (Division 4).  An important aspect in considering the operation of Division 4 is the objects of the Act.  The principal objects are set out in s6.  Relevantly they include:-

“6. Objects

The principal objects of this Act are — 

…

(ab) to promote the principles of freedom of association and the right to organise;

…

(ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements;

…

(ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises;

…

(e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations;

(f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and

…”

264 The object contained in s6(1)(e) [sic s6(e)] is in particular fulfilled by Division 4.  Also the Act as a whole provides a pivotal role for organisations in the representation of their members in industrial matters, (including collective bargaining to establish conditions of employment) and within the conciliatory, arbitral and judicial functions of the Commission.

265 By Division 4 the legislature has given the Commission a regulatory role in the formation, operation and conduct of organisations.  The effect is that an independent body has significant control over organisations by the exercise of the powers provided by the legislature.

266 The following table sets out the scope of Division 4 apart from s66:-

267 This is this context within which s66 operates.  As stated the lynchpin of the section is the “rules of the organisation”.”

6          Section 84A is another section of the Act which involves the interaction between the Commission and an organisation and the role of the Commission in controlling the activities of organisations.  The maximum penalty under the section is greater for organisations, employers and associations than others.  As set out below authorities have established that a maximum penalty reflects the policy of the legislature.  Accordingly the legislature regards a contravention of an order of the Commission by an organisation as potentially more serious than other entities except the two others mentioned.  This highlights the importance to the legislature of organisations not acting in a way which may enliven s84A, including of course acting in accordance with orders of the Commission.

7          As can be seen from section 84A(5)(a)(iii) the greatest sanction which can be imposed on an organisation for a contravention of an order is a direction under s73(1) to the Registrar or a deputy registrar to issue a summons (a s73 direction).  The nature of such an application is discussed in greater detail below.  It is relevant to note at this stage that such a disposition in a s84A application can be imposed for a single contravention of an order of the Commission, even though it is unlikely that this would occur in cases where the organisation had not previously been “convicted” under s84A of the Act.

8          In a summons under s73 of the Act, the organisation must show cause before the Full Bench why its registration “should not be cancelled or suspended, as the case may be, either generally or with respect to any employee or group of employees”.  If an organisation is suspended or has its registration cancelled it does not have the rights and privileges of a registered organisation under the Act during the period of the suspension or unless it satisfies the Full Bench that it should again be registered.  At such a time the organisation could not represent its members before the Commission, including in s44 conferences which are central to the Commission’s conciliatory and arbitral roles and as to which an individual has no general standing to make an application (s44(7)).

9          The industrial relations system in Western Australia, which was and is established in large part to protect employees by, amongst other things, encouraging the formation of registered organisations and allowing them to collectively bargain, appear for and represent their members at the Commission and in the formation of industrial agreements.  (See the principal objects contained in s6 of the Act and also s41 about industrial agreements). 

10       All of this means that an organisation does not act in the interests of all of its membership if it contravenes an order of the Commission and so via s84A and s73 puts at risk its right to bring actions before and represent its membership before the Commission.  This has particular relevance to organisations like the respondent in the present application as the respondent has members from a wide variety of occupations and the HSAs at the hospital only represent a small part of their overall membership.

Application C20 of 2007

11       The application was about the imposition of a work ban by the respondent and its HSA members at the hospital.  The ban was against the participation of HSAs in what are known as “Code Blacks”.  Based on the evidence before the Full Bench, a Code Black is an emergency response to a “personal threat” which is activated by any person, whether staff, patient or visitor, when they feel threatened by or at risk from aggressive behaviour.  The aggressive behaviour may be verbal or physical.  When a Code Black is activated a Security Incident Response Team (SIRT) is alerted by pager.  The intent is that they provide a controlled team response to a potential or actual aggressive incident or personal threat.  The SIRT comprises a senior registered nurse, two security personnel and two HSAs. 

The Order made on 1 February 2008

12       The order which was made by the Commission took the customary form in s44 applications of setting out, by way of a preamble and recitals, the reasons for decision of the Commission, followed by the numbered orders.  These were as follows:

“1. THAT no later than 3:30pm on Monday, 4 February 2008, the Union shall convene a meeting of its HSA members employed at Sir Charles Gairdner Hospital.  At such meeting the Union shall:

a. inform such members of the terms of this Order; and

b. direct such members that they are to comply with the Order;

2. THAT no later than 5:00pm on Monday, 4 February 2008, the Union and its HSA members employed at Sir Charles Gairdner Hospital shall lift the ban on HSAs participating in Code Blacks for a period of six weeks from that date to enable discussions between the parties as to other options for managing Code Blacks.

3. THAT the parties meet within one week of the date of this Order to commence their discussions referred to in Order 2.

4. THAT the parties report back to the Commission on Tuesday, 19 February 2008 as to progress in those discussions.

5. THAT there be liberty to apply to both parties to vary or rescind the Order.”

The Reasons for Decision

13       The relevant aspects of the reasons for decision were as follows:

(a) The Commission had convened a number of conferences since August 2007 for the purpose of conciliating between the parties about the imposition of the work ban.

(b) On 16 August 2007 the Commission issued a recommendation that the respondent lift the ban on participation by HSAs in Code Blacks at the hospital.

(c) The recommendation was accepted and the ban lifted, but then subsequently re-imposed.

(d) At a conference on 31 January 2008, following additional discussions, the Minister sought an order to be made pursuant to s44(6)(ba)(i) of the Act for the lifting of the ban, to prevent the deterioration of industrial relations pending the resolution of the matter by conciliation or arbitration.

(e) Lengthy discussions conducted in good faith over a period of five months had made progress in:

(i) Identifying and clarifying the employer’s position about indemnifying employees participating in Code Blacks.

(ii) HSAs being involved in the revision of the training provided in dealing with Code Blacks, to better equip them to safely participate in the incidents.

(iii) The employer issuing directions to other staff members not to put pressure on HSAs or to direct them to participate in Code Blacks where it may be inappropriate to do so.

(f) Information had been provided to the Commission that the employer had put in place its best possible means of overcoming the difficulties imposed by the ban but this was not without problems.

(g) On 23 January 2008 security officers had to respond to a number of Code Blacks and a helicopter landing within a short time.  This demonstrated the pressure placed on the hospital and its other employees including security officers because of the ban. 

(h) At the invitation of the respondent, the employer indicated a preparedness to continue discussions over how Code Blacks can be dealt with, subject to the lifting of the ban for six weeks. 

(i) Having considered the requirements of the Act and the tests to be applied to the issuing of interim orders, the Commission was satisfied that:

(i) Participation in Code Blacks is part of the duties of HSAs as well as other staff.

(ii) Other staff continue to participate in Code Blacks.

(iii) Each employee retains the right not to participate in any Code Black where he or she has reasonable cause to believe that his or her safety may be at risk.

(iv) The employer is prepared to enter into discussions with the respondent and the HSAs at the respondent’s invitation to find other ways to resolve the issue.

(v) The failure to lift the ban will lead to a deterioration in industrial relations as the employer has been prepared to make its best endeavours to deal with the situation notwithstanding the ban up to this point and is prepared to enter into discussions subject to the lifting of the ban, but not with the ban still in place. 

(vi) The lifting of the ban is for a limited period of six weeks to enable discussions to take place.

(vii) The employer sought the lifting of the ban since it was re-imposed.

(viii) There is no irreversible consequence to the issuing of an order for the lifting of the ban.

(j) The Commission then made the operative orders saying it did so “pursuant to the powers conferred on it” under the Act.

The Actions Required by the Order

14       It can be seen that orders 1 and 2 required the respondent to take specific action by 3:30pm and 5:00pm on 4 February 2008 respectively.  Together these two orders required the respondent to:

(a) Convene a meeting of its HSA members employed at the hospital by 3:30pm on 4 February 2008.

(b) At the meeting inform its HSA members of the terms of the order.

(c) At the meeting direct its HSA members to comply with the order.

(d) By 5.00pm on 4 February 2008 lift the ban on HSAs participating in Code Blacks for a period of six weeks from that date.

15       As is set out in more detail later the respondent failed to comply with requirements (c) and (d).

The Memorandum from the Commissioner

16       By a Memorandum to the Registrar dated 20 March 2008 and stamped as received by the registry on 1 April 2008, the Commissioner who had made the order directed an application to be made to the Full Bench for the enforcement of orders 1 and 2, pursuant to s84A(1)(b) of the Act.  The Memorandum referred to the Commissioner receiving a report from a Deputy Registrar of the Commission dated 5 February 2008 about an investigation into compliance with the orders.  The Memorandum said the report led the Commissioner to believe that orders 1 and 2 had not been complied with.

The Application to the Full Bench

17       The present application was commenced on 13 May 2008.  There was no information before the Full Bench as to the reason for the delay between the date of the Memorandum and the commencement of the application. 

18       The application was supported by eight numbered paragraphs of particulars.  Paragraphs 1-6 recounted the background facts.  Paragraph 8 described the direction given by the Commissioner in the Memorandum to commence the proceedings.  The Memorandum was annexed to the application.  Paragraph 7 set out the alleged contravention of the orders in the following terms:

“7. The Respondent convened a meeting of its HSA members employed at the Hospital but failed to comply with a portion of the Order in that they:

(a) did not direct their members that they were to comply with the Order; and

(b) did not lift the ban on HSAs participating in “Code Black” incidents by 5.00pm on Monday, 4 February 2008 for a period of six weeks to enable discussions to be engaged in regarding the options for managing “Code Black” incidents.”

The Procedural History of the Application

19       The application first came before the Full Bench on 23 May 2008 for a directions hearing.  The parties then advised the Full Bench that they did not think a conference between the parties and the Full Bench would be “unavailing” in the terms of s84A(4)(b) of the Act.  Accordingly, the Full Bench formed the same opinion and adjourned the hearing for a conference to take place “with a view to an amicable resolution of the matter to which the application relates” (s84A(4)(b)).  Two conferences were undertaken for this purpose but an amicable resolution was not possible.  At the conclusion of the second conference on 9 June 2008, programming orders were made for the necessary procedural steps to be taken before the listing of the application of the hearing.  On 19 June 2008 and by consent, the programming orders were varied by making changes to the dates by which procedural steps were to be taken.

20       Pursuant to the orders which were made by the Full Bench, the respondent filed a statement of answer on 16 June 2008.  Relevantly the answer said:

“1. The Respondent admits the two breaches of the West Australian Industrial Relations Commission’s order contained in the Applicant’s Particulars of Claim.

2. The Respondent reserves its right to make submissions to the Commission in mitigation of any contemplated penalty in this matter.”

21       There was no complaint made that there was any duplicity in the application, in alleging two contraventions of the orders made on 1 February 2008. 

22       Both the applicant and the respondent filed witness statements in accordance with the procedural directions made by the Full Bench. 

The Witnesses

23       For the applicant witness statements were provided by:

(a) Ms Linda Davies, the Nurse Co-Director of Neurosciences CSU at the hospital since 6 May 2008 and prior to that the Manager Patient Support Services for over 12 years.  In this capacity Ms Davies was responsible for the management of the HSAs and so became involved in the present dispute.

(b) Ms Julie Love, Senior Industrial Relations Consultant of the Health Industrial Relations Service at the hospital since July 2004.

(c) Mr Timothy Goodson, Manager Area Security for the North Metropolitan Area Health Service, a role which includes the management of security services at the hospital.

24       For the respondent, witness statements were provided by:

(a) Mr Len Sloan, an employee at the hospital as an HSA for 21 years and a delegate of the respondent.

(b) Ms Fran Hebden, a Senior Organiser with the respondent who had been involved in the dispute since its commencement.

(c) Mr Francis Hall, an employee at the hospital as an HSA for 10 years and a Code Black committee member of the respondent.

(d) Mr Ian McDonald, an employee at the hospital as an HSA for seven years.

25       Pursuant to the relevant practice direction, both parties filed an outline of submissions prior to the hearing.

The Hearing

26       The hearing of the application took place on 21 July 2008.

27       The people who had provided witness statements gave evidence affirming their contents except for some minor noted corrections.  All of the witness statements were received as exhibits together with any annexed documents.  Each of the witnesses was then available for cross-examination.

28       At the conclusion of the evidence the applicant and then the respondent provided their oral submissions.  Both counsel adopted their written outline of submissions and elaborated upon them.

29       The Full Bench then reserved its decision.

The Key Point for the Full Bench to Resolve

30       Although there was a different emphasis placed upon some of the facts by each party, there is no major factual contest which needs to be resolved by the Full Bench.  The area of dispute was about the disposition of the application by the Full Bench under s84A(5) of the Act. 

31       The applicant contended that a fine against the respondent ought to be imposed, whereas the respondent’s position was that it would be appropriate to issue a caution.

Contraventions Proved

32       On the basis of the respondent’s admission of the contraventions of the orders particularised in the application, as supported by the evidence, I am satisfied on balance that the contraventions have been proved.  As such, the Full Bench may dispose of the application by the making of one of the four types of orders set out in s84A(5)(a).  To make this decision it is necessary to review the evidence adduced by the parties.

The Evidence Adduced by the Applicant

(a)          Ms Davies

(i)            Witness Statement of Ms Davies

33       Ms Davies set out her relevant employment at the hospital and the meaning and operation of a Code Black. 

34       Ms Davies explained that HSAs:

(1) “Are unregulated hospital support workers who provide practical and well defined assistance to nursing, medical and allied health staff”.

(2) “Work under the direction of” the clinical staff.

(3) “Provide direct patient handling assistance” including re-positioning, turning and ambulating patients.

(4) Transport patients to and from appointments and procedures in beds and on trolleys and wheelchairs as required.  They also courier items “such as equipment, medical records, specimens and property” around the hospital.

(5) Are expected to attend Code Blues (medical emergencies) and Code Blacks although they do not take the lead role in the response.

(6) “Work under the supervision of nursing, medical or security staff at all times” and particularly so in emergency situations such as Code Blacks.

(7) When a Code Black is called, work under the direction of security personnel and senior nursing/medical staff and are expected to provide support such as surveillance, assistance in restraint of the individual and fetching of equipment and other items as required.

(8) Are required to remain at the scene of the Code Black until given the all clear by the senior nursing/medical staff in charge and “when the situation is secured and under control”.

(9) Have been required to attend Code Blacks as part of their duties for a significant period of time.  Attached to Ms Davies’ statement was a joint information/agreement between SIRT management and the respondent dated 7 March 2002, setting out the duties and limitations of the role of the HSAs and other support staff in a Code Black.

35       The joint information/agreement document said amongst other things:

“(1) Under no circumstances should staff, patients or visitors place themselves in jeopardy. 

(2) Assert your right to refuse a direction which you believe may result in personal risk or harm.”

36       Ms Davies said that “all staff are empowered to assess their personal risk before undertaking any task and are trained to put strategies in place to protect themselves from injury” where necessary.

37       Ms Davies then set out the history of the dispute which led to the application to the Commission.  Ms Davies said that concerns about HSAs attending Code Blacks were first raised in August 2007.  She received a letter from Ms Carolyn Smith, the assistant secretary of the respondent dated 3 August 2007.  The letter was annexed to the statement of Ms Davies.  The letter referred to meetings between the respondent and HSAs about safety and health issues in attending Code Blacks.  The letter said they included lack of adequate training to perform the relevant tasks and inadequate procedures and policies governing Code Black attendance.  The letter said the respondent had advised HSAs the hospital may be in breach of s19 of the Occupational Safety and Health Act 1984 (WA) (the OSH Act) in that employers have a duty to provide and maintain a safe workplace for employees.  The letter said the HSAs had informed the respondent they believed that attending Code Black situations posed “a risk of imminent and serious injury”.  Accordingly, pursuant to s26 of the OSH Act, the HSAs collectively decided to cease attending Code Blacks.  The respondent was giving the hospital seven days within which to put appropriate policies, procedures and training in place for the HSAs and that until the situation was rectified, the HSAs would cease attending Code Blacks from 13 August 2007.  The letter concluded by saying the respondent would like to meet as a matter of urgency to discuss the issue.

38       Ms Davies confirmed that a Code Black work ban was put in place from 13 August 2007.  A flyer, in the name of the respondent, was circulated at the hospital and confirmed the imposition of the work ban.

39       Ms Davies responded by sending an email on 17 August 2007 to senior managers about the role of HSAs in Code Blacks.  The email was attached to her statement.  The email referred to a conference at the Commission which had taken place the day before.  The email set out some of the discussions at the conference and referred to Ms Davies issuing an attached “operational instruction” to HSAs to clarify their role and stress the importance of keeping themselves safe and reporting hazards and incidents.  The operational instruction headed “Personal Threat/Code Black Procedure” dated 16 August 2007 was also annexed to Ms Davies’ witness statement.

40       Ms Davies said that on 20 August 2007, after a recommendation from the Commission, the respondent lifted the work ban.  Ms Davies then participated in a number of conferences at the Commission to try and resolve the dispute.  She also chaired HSA Code Black sub-committee meetings established to deal with matters relating to HSAs and Code Blacks.

41       On 4 December 2007 Ms Davies became aware that HSAs were again not attending Code Blacks.  This was confirmed by a flyer in the name of the respondent distributed around the hospital.  The flyer said that as of 10 December 2007 at 6:00am “Code Black bans are on!”.  The flyer said that there would be no “more attending these code blacks until we get some agreement to improve the training and the legal side of things”.

42       Ms Davies said she was present at the Commission on 31 January 2008 when the relevant orders were issued.  Ms Davies said that a meeting for the HSAs with the respondent was facilitated and took place on 4 February 2008 from 2:30 to 3:30pm.  Ms Davies sent an email to the relevant managers advising them of the meeting.

43       Ms Davies also described how flyers in the respondent’s name were distributed in the hospital and displayed in lift wells.  Copies were annexed to her witness statement.  One referred to the respondent’s position before the meeting on 4 February 2008.   It was headed “SCGH HSA’s Code Black Ban!”.  Under the sub-heading “Unite Together” the flyer said the issue was not any closer to being resolved.  It then said:

“The Commissioner has ordered the bans be removed.  However, the union believes that we need to meet and discuss this and then take a vote.  So: a meeting will be held for all HSA union members … [the date and venue were inserted] … Until then “code black bans are on!”.  We have until 5pm on Monday to [decide] what we are going to do.  Your input is essential.”

44       A second flyer was distributed after the meeting on 4 February 2008.  It was headed “Code Black Ban!”.  The flyer said:

“The Commission has now ordered that the ban on Code Blacks be removed.  As we complied with the Commission last time and still there was no improvement in the situation, we are not going to remove the ban this time.  There will be talk of fines for disobeying the Commission, however that will be directed to the Union not individual members.”

45       The flyer ended with the statement: “Remember stand .. strong together in unity!”.

46       On 5 February 2008 Ms Davies sent an email to senior hospital staff to advise them that the Code Black ban had not been lifted.

47       Ms Davies set out the “discernable impact” which the ban had upon the hospital.  Relevantly she said:

(1) Code Blacks are transmitted to all HSAs on duty by a pager.

(2) Whilst she was working as the Manager Patients Support Services, there were 67 HSAs on duty during the weekday morning shift and 32 on weekend morning shifts.  There were 33 HSAs on duty during the afternoon weekday shift and 24 on the weekend afternoon shift.  Overnight there were 16 HSAs rostered on. 

(3) On receiving a Code Black alert by pager all HSAs in the vicinity were required to participate in the SIRT response.  Without the guaranteed attendance of HSAs at Code Blacks, the SIRT response was “seriously depleted”.  With the work ban in place the hospital could not ascertain how many HSAs will or will not respond to any Code Black.  More than one Code Black can and had been called at the same time so that risks associated with non attendance of HSAs were heightened.

(4) There was an increased risk that a Code Black response would not involve the necessary staff present to ensure patient, staff and visitors’ safety and effectively restrain the patient/person if required. 

48       Ms Davies also set out her involvement in the more recent history of the dispute.  She said that on 8 April 2008 she re-issued the HSA operational instruction setting out the role which HSAs were required to perform in the management of Code Blacks.  Ms Davies was also provided with a flyer that was handed out at a meeting of the respondent on 10 April 2008.  The flyer said the respondent’s members would continue to refuse to attend Code Blacks.

(ii) Oral Evidence in Chief of Ms Davies

49       Ms Davies gave oral evidence about some points raised in the respondent’s witness statements.  Firstly she was asked about the assertion that the hospital had taken insufficient action to train the nursing staff or address the issue of the nursing staff pressuring HSAs to intervene in a Code Black notwithstanding their right not to if they believed their safety was in jeopardy.  Ms Davies pointed to an attachment to her statement which was an email to senior nursing staff (referred to above) with an attached copy of the Code Black procedure and an instruction to make the staff aware of it.  She also said awareness of the HSAs’ issues occurred at the Violence and Aggression Working Party and the Occupational Safety and Health Committee which she attended (T10).

50       Ms Davies also denied an assertion that the hospital’s delegates on the HSA Steering Committee were “evasive, delaying and uncooperative” in addressing the HSAs’ concerns.  Ms Davies said that she communicated with the senior nursing group about the HSAs’ issues, increased the length and type of training but the “sticking point was the legal aspect…” (T11).

(iii) Cross-Examination of Ms Davies

51       Ms Davies was asked about the training of the nursing staff in Code Blacks.  She said this was not her responsibility before a few questions later saying she did not know whether the nursing staff were trained in the Code Black protocol (T11-12).

52       Ms Davies was also asked about the length of the training of the HSAs in Code Blacks.  She understood they were not happy about that and it was a reason why the ban had not been lifted.  The training had been increased from one and a half hours to two and then two and a half but the HSAs were still dissatisfied.  Ms Davies also mentioned what was called WAVE (Workplace Aggression Violence) Training.  This was a day of general training for all people at the workplace who may come into contact with the public and patients but did not include restraint training (T13).

(iv) Re-Examination of Ms Davies

53       In re-examination Ms Davies amplified that the WAVE training was about recognising when people were becoming aggressive and strategies to put into place to not make the situation worse (T14).

(b) Mr Goodson

(i) Witness Statement of Mr Goodson

54       Mr Goodson said he had been involved with the hospital’s approach to aggression since 1992 when a multi disciplinary team was formed and the development of the SIRT commenced.  Mr Goodson said the security department at the hospital maintained a comprehensive database where security officers logged activities including attendance at Code Blacks.  He said that a review of the database for the period from 1 January to 30 June 2008 showed 760 aggressive incidents including 733 Code Blacks.  Of those incidents 20 were Code Blacks armed; 36 Code Blacks unarmed, non restraint; 636 Code Blacks unarmed involving restraint and 41 Code Blacks unarmed standby.  This showed that security officers were attending an average of just over four Code Blacks per day over the period. 

55       Mr Goodson also referred to the wide range of other responsibilities held by security officers.  This including being present when somebody was “escorted to or from the hospital by police, attendance when the emergency helicopter arrives, response to assaults, sexual assaults and other crimes committed on the hospital premises and many more”.  Mr Goodson said that the “increased non participation of HSAs at Code Blacks has had a significant impact on Security staff at the Hospital”.  He said:

“The SIRT was set up to provide a controlled, team response to Code Black incidents and the strength of such a team response is obviously compromised if the full team cannot be assembled”.

56       Mr Goodson also said that ideally security officers should be able to rely on HSAs for assistance after the immediate threat had been addressed so that the former could attend “pressing security matters elsewhere in the Hospital”.  Mr Goodson said that the increased pressure on security officers since the imposition of the work ban was such that they had sought and been granted approval to increase the number of officers rostered on duty at the hospital at any one time.  There were now four security officers on duty at the hospital with three undertaking duties wherever required and one solely in the emergency department.  To facilitate extra staffing levels there had recently been an increase in the security officers called upon to work at the hospital from 16 to 20.  Mr Goodson said the “increase in staffing levels and pool size for Security Officers has only been approved on a short term basis”. 

(ii) Oral Examination in Chief of Mr Goodson

57       Mr Goodson outlined his long involvement in the SIRT team.  He also explained that he had been asked last year to review the training in Code Black procedures and as a result it had increased to two and a half hours (T15).

(iii) Cross-Examination of Mr Goodson

58       Mr Goodson said the Code Black training had been assessed by Occupational Health and Safety Staff and senior ward nurses who said the training had been “quite adequate” (T15).  He agreed however that a Code Black could commence quickly, was unpredictable and could involve armed assault.  Mr Goodson also said that although you “could not be too prescriptive” in thinking about how a Code Black would unfold, ordinarily the nursing staff would be primarily concerned with the medical “well being” of the patient and the security staff and HSAs would be involved in any necessary restraint.  He said that the (previously) three and (now) four security guards had to patrol the whole of the campus which has an area of 30 hectares (including the car parks and to the boundaries) and 26-27 buildings (T16).

(iv)        Re-Examination of Mr Goodson

59       Mr Goodson was referred to the statistics attached to his statement and said 20 of the 760 “aggressive incidents” recorded from January to June 2008 were armed Code Black incidents.  A recording of “armed” could occur for a range of weapons/implements like “a syringe to a knife but also to zimmer frames and water jugs” (T17).

(c) Ms Love

(i) Witness Statement of Ms Love

60       The witness statement of Ms Love supported and repeated some of the evidence of Ms Davies.  It is not necessary to set out that evidence again.

61       Ms Love said that although she did not attend at the report back conference at the Commission on 16 August 2007, she knew the hospital there provided a package of materials setting out how it was going to implement improvements and address the concerns of the respondent and the HSAs about Code Blacks.  The package was attached to her statement.  The package comprised the following documents:

(1) An announcement of the employment of a Code Black co-ordinator commencing on 20 August 2007.  His/her role would be to work on implementing “the recommendations of the 2007 Code Black report and further investigate these and other issues with relevant stakeholders”.  The document said it was envisaged the initiatives would provide “a system of excellence”.  The document also referred to the composition of the “SCGH Code Black Committee” and set out priorities of reform being education, reporting, risk assessment and post incident support. 

(2) The required Code Black response.

(3) The role of the HSA during Code Black action card 5.

(4) The role of the HSA during Code Black action card 5A.

(5) A document headed “LHMU ban on attending Code Blacks”.  This set out relevant “legal principles”.  It referred to the possibility of the restraint of a patient exposing the hospital to a civil action for damages.  The document said there was no legislation “governing the indemnification of employees of government in respect of litigation against those employees arising out of conduct in the course of their employment”.  It referred however to “long standing government policy” that in the ordinary course government officers are indemnified unless the conduct giving rise to the relevant claims are of such a nature so as to not justify indemnification.  Reference was made to the “Guidelines Relevant to Ministers and Officers Involved in Legal Proceedings” tabled in the Legislative Council on 10 July 1990.  The document also referred to the usual practice of legal proceedings being commenced against the Minister or the particular health service rather than the individual officer so that the question of indemnity did not arise.

(6) The Guidelines – They provided that Ministers and other officers would be indemnified if their conduct “was in good faith and reasonable, and in the discharge of official responsibilities …”.  The guidelines emphasised each case would be decided on its merits and against the background of the “reasonableness” test not being harshly applied.  The document also referred to the criminal law principle that a person is not criminally responsible for an event which occurs by accident.  The document said a staff member “will not be criminally responsible for an assault where it was reasonably necessary in order to resist an [sic] unlawful violence threatened to him or her or another person in his or her presence.  Of course, the force used must be reasonable in the circumstances”.  The document also commented that it was difficult to see how a criminal charge could arise.

The policy applied to civil proceedings, Royal Commissions and other enquiries and criminal proceedings.  The thrust of the policy was that the evaluation of whether the conduct of the relevant person was in good faith, reasonable and in the discharge of official responsibilities could not be assessed until knowledge of the circumstances of the case was obtained which would usually be after the proceedings concluded.  The policy provided however circumstances in which an indemnity could be provided at the commencement of or during the proceedings. 

62       Ms Love said that on 8 November 2007 the hospital provided a written report back on the progress of the dispute to the Commission and received the respondent’s written report back.  These documents were attached to her witness statement.  Ms Love signed the hospital’s report back letter.  It set out what the hospital considered to be continued improvements to the Code Black training programs and reporting processes.  Amongst other things the letter referred to the appointment of the Code Black co-ordinator and said a violence and aggression steering committee had been established which included two HSA representatives.  The HSA Code Black sub committee was also referred to.  The letter mentioned specific initiatives to improve Code Black education.  The letter referred to the HSAs’ concerns about legal indemnity.  The letter said the hospital had sought advice from the State Solicitor’s office which was provided to the HSAs.  The letter said that whilst “the hospital acknowledges that the staff continue to have concerns in relation to this matter, the hospital is obliged to abide by the whole of government policy”.  The letter detailed additional initiatives aimed at improving the operation of Code Blacks.  The letter said that other issues raised by HSAs were continuing to be addressed and investigated. 

63       The report back letter from the respondent to the Commission was also dated 8 November 2007.  The letter referred to limitations to the changes in training and said that only interim training programmes had been implemented which were not acceptable for the long term.  The letter said the “members feel there is no move forward with the steering committee …”.  The letter said the respondent had collected around 150 signed letters from members saying they do not feel safe participating in Code Black events.  The letter said there was “no change in the legal side of things”.  It said the members feel there is no real improvement and they are not participating in Code Blacks at the hospital.  It concluded that there had been “little progress made on the substantive issues.  Of greatest concern is that there has been no progress in relation to the matter of legal indemnity”. 

64       Ms Love said she received an email about the reinstatement of the work ban from Ms Smith on 4 December 2007.  She then sent an email in reply saying the hospital would seek the urgent assistance of the Commission. 

65       Ms Love said there was a conference on 6 December 2007 and a recommendation issued the following day that the work ban be lifted and that the respondent write to the hospital about the legal indemnity issue with the hospital to provide written answers.  Ms Love referred to letters from the respondent to the hospital and vice versa about the legal indemnity issue dated 7 December and 17 December 2007 respectively.  These letters were attached to her witness statement.

66       Ms Love then referred to a further conference in the Commission on 20 December 2007 with the outcome being that the hospital was “required” to put together a comparison document of criminal and civil actions under the whole of government indemnity policy and provide a response to the respondent’s training proposal.  These documents were attached to Ms Love’s witness statement.  The first was a summary of the guidelines relevant to Ministers and officers involved in legal proceedings.  There was then attached a proposal by the respondent for Code Black training and also the response of the hospital.  The latter was a detailed five and a half page document. 

67       Ms Love referred to the orders made by the Commission on 31 January 2008 and the meeting of the respondent and the HSAs on 4 February 2008.  Ms Love said she received an email from Mr Collier on behalf of the respondent at 5:01pm on 4 February 2008 advising the HSA members had met and voted unanimously to continue the work ban.  The letter also requested Ms Love arrange a meeting as soon as possible to discuss “other options for dealing with Code Blacks” as ordered by the Commission.

68       Attached to Ms Love’s statement was a transcript of a Channel 10 news item involving Mr Kelly, the secretary of the respondent, at the hospital on 4 February 2008.  The transcript read:

“NEWSREADER: Hospital orderlies will ignore a WA Industrial Commission ruling and continue their code black bans in hospitals.  The Commission has demanded the Liquor, Hospitality and Miscellaneous Union lift the bans which prevent hospital orderlies restraining dangerous patients.

DAVE KELLY: When you're dealing with a patient that could be high on drugs, who could be in a highly violent state, all our members are saying is they should be properly trained and their employer should protect them for any legal consequences.

NEWSREADER: The union says the code black bans which have been in effect since December will continue until members are protected from violent and abusive patients.”

69       Ms Love referred to conferences at the Commission on 5 and 6 February 2008 and an email from Mr Collier on 5 February 2008 in which the respondent put forward three proposals for the settlement of the dispute.  This was attached to Ms Love’s statement.  Proposal three was that a system be set up whereby no HSA was permitted to participate in any Code Blacks unless they specifically agreed by way of signing a register of HSAs who agreed to do so.  As a result there was a survey of HSAs to see who was prepared to respond to Code Blacks.  The result of the survey was that only five HSAs said they were prepared to participate in Code Blacks. 

70       Ms Love also attached to her statement statistics from Code Black feedback forms which HSA co-ordinators are required to complete after attendance, which was implemented on 10 October 2007.  The table set out the number of Code Blacks which were reported on the feedback form.  They were classified as being within the emergency department and wards.  The table contained the number of Code Blacks where less than two HSAs had been in attendance, not including the HSA co-ordinator, and the percentage number of Code Blacks where less than two HSAs had attended.  The total number of Code Blacks and the percentage of Code Blacks where less than two HSAs attended is represented in the following table:

71       Ms Love asserted there was an “increased risk to maintain safety for staff, visitors and patients” because of the work ban. 

72       Ms Love referred to the intention of the hospital to discontinue application C20 of 2007 because the parties had reached a stalemate.  Ms Love said that the conciliation processes of the Commission had been exhausted “particularly due to the fact that the Union’s ongoing refusal to comply with the Order of the Commission that they lift the work bans on HSAs attending Code Black incidents meant that the Hospital needed to review other strategies for managing Code Blacks”.  Ms Love emphasised that the discontinuance was not because the hospital conceded that HSAs should not longer be required to attend Code Blacks as part of their duties.  This was confirmed in a letter sent by a Ms Di Twigg, Executive Director of Nursing Services at the hospital, to the State Solicitors’ Office dated 6 June 2008, which was also attached to Ms Love’s statement.

(ii) Oral Evidence in Chief of Ms Love

73       Ms Love said the hospital continued to try and resolve the dispute with the assistance of the Commission after the ban was not lifted in contravention of the order (T18-19).

74       She also said the respondent had been advised, on the legal indemnity issue, that the hospital did not have any discretion as it was a whole of government policy.  It had however tried to clarify the policy to the respondent and answer its questions (T19).

75       Ms Love also said that application C20 of 2007 had not been discontinued whilst the present application was pending at the direction of her directors and “the registry of this Commission” (T20).

(iii) Cross-Examination of Ms Love

76       Ms Love confirmed that as expressed in the order, at that time the hospital’s position was if the ban was not lifted it would cease negotiating (T21) although this did not eventuate.  After the order was made and the work ban not lifted the hospital surveyed the HSAs to see if they wanted to “opt in” to being part of the Code Black response team.  The hospital received five favourable responses from the 250 employed HSAs.

77       Ms Love was also cross-examined about her statement that there was an increased risk to the safety of staff, visitors and patients because of the ban.  She confirmed that she did not have any Occupational Safety and Health qualifications to assist in this assessment; but it was the “position of the executives and others”.

(v) Questioning of Ms Love by the Senior Commissioner

78       After Ms Love’s cross-examination and prior to re-examination there were the following relevant questions asked by the Senior Commissioner and answers by Ms Love:

“SMITH SC: I just have one question before you re-examine.  And ... in terms of the decision that has been made to ultimately not discontinue ... perhaps discontinue this application was it ever considered to perhaps proceed to arbitration about the issues if the parties were at a stalemate? --- I think it was safe to say we considered all options.  We had many discussions internally as to what we could see as a way forward.  But ultimately the decision wasn’t taken to take that option.

Are you able to say why the decision wasn’t taken to perhaps have the issues arbitrated if the parties were at a stalemate? --- I think certainly the work bans being in place and … the increasing likelihood that they were … never going to be lifted meant that the hospital had to ... and I think we made it clear in one of my attachments that we now had to look at alternatives.  That the position of HSAs undertaking Code Blacks may have actually forced the hospital to look at different alternatives.  But we didn’t do that ... we haven’t gone any further with that but we didn’t do that lightly.”

79       There were no questions from the respondent’s counsel arising out of this exchange.  Re-examination then took place.

(iv) Re-Examination of Ms Love

80       Ms Love confirmed that the respondent had suggested the carrying out of the “opt-in” survey conducted by the hospital.  She also said there was no record of an HSA ever being charged over their involvement in a Code Black (T24).

Evidence adduced by the Respondent

(a) Mr Sloan

(i) Witness Statement of Mr Sloan

81       Mr Sloan set out his understanding of a Code Black.  He said a Code Black is a:

“situation where an unarmed confrontation, armed confrontation, or armed hold-up is taking place.  In broad terms as set out in the “SCGH Emergency Procedures Manual of 1999”, a Code Black involves any level of violence whether slight or extreme, any level of assault, threatening behaviour, wilful damage to property, offensive sexual behaviour, abusive language by any individual whether a patient or otherwise, against a staff member, patient, or member of the public.”

82       Mr Sloan also said that a number of incidents which would qualify as Code Blacks occur during shifts without a Code Black emergency response being activated.  Mr Sloan said that from his experience and the experience of HSAs he had spoken to over his years of employment, in approximately nine out of 10 cases where a Code Black takes places or when a Code Black response is activated, it is a single HSA who is first on the scene. 

83       Mr Sloan described the reasons for this.  HSAs are disbursed across the hospital at a ratio of at least one per ward.  By contrast there were a total of three security guards, prior to the Code Black work ban, for the entire hospital.  Additionally HSAs are involved in interaction with people and duties where Code Blacks are likely to occur.  Also as HSAs work at the direction of the nursing staff, if a nurse is attacked, abused or assaulted by a patient or a visitor and a HSA is on the ward the nurse understandably calls for immediate assistance from the HSA.  Mr Sloan said that in “such situations of an immediate assault it would be abhorrent morally for me to stand back and cite Occupational Health and Safety considerations to prevent a nurse from being overpowered by a physically larger and stronger individual”.

84       Mr Sloan also said it is “in the order of minutes that the entirety of the SIRT is assembled and ready to deal with the Code Black”.  A reason for this was the size of the hospital campus and the small number of security guards.  By contrast he explained, in summary, that Code Blacks arise quickly, are unpredictable and require a rapid response.  Accordingly HSAs are in the front line of response to highly dangerous situations and assaults.

85       Mr Sloan said he had “been punched and spat on by patients within SCGH.  I have had, in one incident, a fire extinguisher swung at my head.  I have routinely received abuse and threats to find me and kill me from patients, their visitors or members of the public”.  Mr Sloan estimated that a HSA at the hospital was likely to face a Code Black on average once per shift.  Mr Sloan also noted a trend of increasing seriousness and frequency of Code Blacks.  He linked this in part to the prevalence of amphetamine affected or amphetamine addicted patients and visitors.  People affected by these drugs were described by Mr Sloan to be more difficult to stop or restrain.  Mr Sloan said he and the overwhelming majority of HSAs at the hospital whom he had spoken to were concerned for their safety from involvement in Code Blacks.

86       Mr Sloan then discussed the level of training received to deal with Code Blacks.  He said the training was inadequate and had not to his knowledge been revised or increased after the order was made by the Commission on 1 February 2008.  Mr Sloan said that the training was seen by the overwhelming majority of the HSAs as “woefully insufficient to meet a Code Black incident”.  The level of dissatisfaction with the training was described by him as “extremely high”. 

87       Mr Sloan also said it was of “grave concern” for the HSAs that the hospital failed to a train or compel nursing staff to follow the Code Black protocol.

88       Mr Sloan then described his involvement as a representative of the HSA on the steering committee established to try and resolve the present dispute.  Mr Sloan said he found the approach of management in the meetings to be “evasive, not forward in initiating immediate action on the issue, not pro-active in initiating further immediate training either for HSAs or nursing staff” and “somewhat dismissive” of HSA concerns regarding both safety and Code Black legal issues.  He said other HSA delegates formed the same view.  Mr Sloan said the “seeming inaction by SCGH Management was similarly of grave concern and great emotional hurt to HSA delegates and members generally given the subject matter”.

89       The final three paragraphs of the witness statement of Mr Sloan were as follows:

“Order of Commission

40. I was present at the meeting of 4 February 2008 held by the LHMU of HSA workers.

41. We were advised by Mr Dave Kelly as to the terms of the Commission’s order requiring that the work bans be lifted.  The view of the membership present at the meeting was sought as to the direction that we, the HSAs, wished to take.

42. A vote of the HSAs present immediately followed as to whether the HSAs would continue the work bans or not.  The vote was, in my view for some if not all of the reasons outlined above, unanimously in favour of continuing the work bans.”

(ii) Oral Evidence in Chief of Mr Sloan

90       Mr Sloan confirmed that only five HSAs voted in favour of the “opt in” proposal after the order of 1 February 2008 and the continuation of the ban.  The proposal was for volunteer HSAs to be involved in Code Blacks for a six week period whilst other solutions were looked at.

91       There was no cross-examination of Mr Sloan.

(b) Mr Hall

The Witness Statement of Mr Hall

92       Mr Hall’s witness statement contained a description of a Code Black and the way in which they are responded to in almost identical terms as to that of Mr Sloan.  Mr Hall said that HSAs are frequently in the front line of response to highly dangerous situations and assaults.  He said that over the course of his employment with the hospital he had been kicked in the stomach, dealt with drug affected individuals, had to deal with threats against his life and health and restrain a vast number of individuals, quite apart from participating in the Code Black SIRT responses.

93       Mr Hall also said there was an increase in seriousness and frequency of Code Blacks.  In almost identical terms to Mr Sloan, he described the link between this and amphetamine affected patients and visitors.

94       Mr Hall described a serious example of a Code Black.  This was when two to three years ago the ex-husband of a patient came to the hospital with the intent of abducting their children.  He was tall, armed with a knife and “visibly under the effects of methylamphetamine”.  A Code Black was called and HSAs and security guards attended on the ward.  The HSAs received an order to restrain the man.  Though this was achieved it took eight participants rather than the five members of the SIRT.  He had to be restrained by them on the floor for half an hour until the police came to assist.

95       In almost identical terms once again to that of Mr Sloan, Mr Hall described the difficulties he perceived with the level of training and nursing staff not being trained or required to adhere to the Code Black protocol.  He described a serious incident in which the after hours nursing manager acted in a way which was against the Code Black protocol and increased the risk of an assault to her.  On that occasion Mr Hall timed how long the SIRT took to arrive.  It was five minutes before the first security guard and then eight minutes before the SIRT was completely assembled. 

96       Mr Hall also said there was conflict when nursing staff reported to management the failure of HSAs to follow their directions or had behaved in a manner which the nurses thought was excessive.  Mr Hall said there were many instances in which nursing staff accused HSAs of being too rough or using excessive force against a patient when the HSA had honestly done what he/she thought necessary to contain the situation.  Mr Hall said the approach of hospital management was generally to “prefer the account of untrained nurses rather than minimally trained HSAs who were responding to the incident”.  Mr Hall said this deficiency had not been remedied. 

97       Mr Hall also described his disappointment with the response of management to the conferences about the dispute in the same terms as Mr Sloan. 

98       The last three paragraphs of his statement were also about the order of the Commission and were in identical terms to Mr Sloan. 

99       There was no oral evidence in chief or cross-examination of Mr Hall.

(c) Mr McDonald

(i) Witness Statement of Mr McDonald

100    The witness statement of Mr McDonald contained many paragraphs which were almost identical to that of Mr Sloan and do not need to be separately described.  These involved the nature of a Code Black, HSAs being first on the scene of an incident and the reasons for that, the response time to a Code Black, dissatisfaction about levels of training, and the order of the Commission.

101    Mr McDonald described a serious example of a Code Black when a male patient attempted to flee the observations unit.  There was a protracted struggle between the patient and a HSA and the latter was cut, bruised and scratched.  Additionally the patient’s tube came out of his arm and a great deal of blood spilled onto the HSA.  The HSA was tested for HIV as a result.  Mr McDonald said that in the course of his employment he had been bitten, punched, had urine thrown at him and suffered assaults from various thrown items.  Mr McDonald said 90% of Code Blacks were not the subject of Code Black emergency responses as they were not reported.  He made this estimate from his own experience and in speaking to HSAs over the course of his employment.

102    Mr McDonald also described the reasons for Code Blacks arising quickly, being unpredictable and requiring a rapid response.  He said:

“Principally it is because the patient is not in a rational state of mind.  They are unable to have insight into their physical and/mental limitations and unable to protect themselves from harm - or others.  Additionally it also due to anxiety; some have received terminal diagnoses, some are separated from their families by a lengthy distance.  Additionally it is not only illicit drugs that cause a Code Black; some prescription medications do have side-effects including delusions or psychoses, which can cause heightened aggression.”

103    Mr McDonald described a case when a “small, slight [race] doctor was admitted to intensive care unit and upon awakening physically attacked his wife.  He was extremely remorseful some hours later after realising his state, and it was quite clear to me he was not the sort of man to participate in that kind of activity in his normal life”.  (I have removed the race of the doctor from this quotation as it is gratuitous in that it does not have any relevance to what was described).

104    There was no oral examination in chief of Mr McDonald.

(ii) Cross-Examination of Mr McDonald

105    Mr McDonald was asked about his assertion that in nine out of ten times in a Code Black an HSA is the first on the scene.  He confirmed that this was based on his “personal experience alone”.

(iii) Re-Examination of Mr McDonald

106    Mr McDonald reiterated that he had been employed as an HSA at the hospital for just over seven years and he would have spoken to hundreds of HSAs as “they come and go pretty quickly”.  He said they talk about Code Blacks and in nine out of 10 times the HSAs said they were the first on the scene.

(d)         Ms Hebden

(i)            Witness Statement of Ms Hebden

107    Ms Hebden said she had been involved in the dispute since its inception and had attended a large proportion of conferences held by the Commission in application C20 of 2007.  She said she did not think the management of the hospital appeared “particularly anxious to resolve the issues raised by the HSA staff relating to Code Blacks”. 

108    Ms Hebden said she and the HSA delegates had conducted a survey into the Code Black issue.  In none of the 150 returned forms was there expressed satisfaction with the manner in which Code Blacks were being dealt with by the hospital, in neither the training provided nor “coverage afforded to HSAs”.

109    In the final three paragraphs of her witness statement Ms Hebden referred to the order of Commission and the meeting on 4 February 2008 in almost identical terms to the statement of Mr Sloan. 

(ii) Oral Examination in Chief of Ms Hebden

110    Ms Hebden confirmed the “opt in” proposal was for six weeks whilst discussions were ongoing but only five people responded positively to it.  Ms Hebden also recalled that “when this proposal was first put forward in the commission one of the comments that came from Linda Davies was that” she needed to know how many HSAs could be counted on to attend a Code Black.  Ms Davies said she would rather know that no HSAs were attending than not knowing how many would (T31).

111    There was no cross-examination of Ms Hebden.

112    There was a question by the Senior Commissioner and then re-examination but nothing arose which warrants being recounted.

The Form of the Respondent’s Witness Statements

113    As I have said there are large chunks of each of the respondent’s witness statements that are identical or very similar.  In my opinion witness statements in this form are generally less persuasive.  This is because the impression is created that the words in the statement are not those of the witness but the person who drafted the statement.  It should be remembered by solicitors and others who draft witness statements that the statement should contain the witnesses’ words.  They should guard against a number of statements containing the same paragraphs as each other to try to bolster their case.  A witness statement usually replaces or substantially reduces the need for the giving of oral evidence in chief; its preparation is not an opportunity to clothe a mannequin witness with the words the drafter would like them to display.  This was not suggested to have applied in the present case.

114    Indeed no issue was taken by the applicant as to the form of the respondent’s witness statements.  There was no cross-examination on how they were prepared and why they contained in some places, substantially the same or identical paragraphs.

115    In all of the circumstances I accept that the recollection of facts, thoughts and feelings expressed in the respondent’s witness statements were those genuinely held by the witnesses.

116    There are no other issues of credibility that I think are worthy of comment.  In my opinion each of the witnesses attempted to give evidence that was accurate.

117    As I will set out later, the respondent submitted that the reliability of some of the assertions made by the applicant’s witnesses should be questioned.  I will analyse this when considering the topic which includes that evidence.

The Registrar of the Western Australian Industrial Relations Commission v The State School Teacher’s Union of WA (Incorporated) (2008) 88 WAIG 333 (Re SSTU)

118    Re SSTU was a recent decision of the Full Bench about an enforcement application under s84A of the Act, involving an organisation contravening an order made by the Commission.  (The organisation was the respondent as named in the above citation, which for ease of reference I will refer to as “the SSTU”).  Accordingly it provides significant guidance as to the disposition of the present application.  It needs to be borne in mind however that the three members of the Full Bench in Re SSTU wrote separate reasons for decision.  In the outline of submissions of the parties to the present application there was a tendency to refer to my reasons for decision in Re SSTU as the reasons of the “Full Bench”.  This was not a correctly made submission unless the relevant aspects of my reasons were expressly or implicitly agreed with by the other members of the Full Bench.  To the extent relevant to the present application, this issue will be later elaborated upon.

The Section 84A(4)(a) Factors

119    As quoted above s84A(4)(a) of the Act requires the Full Bench to 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.  I will address each of these in turn commencing with the issue of undertakings.

Lack of an Undertaking

120    In the respondent’s outline of submissions the following was contained at [110]:

“110 A specific undertaking from the Respondent is not before the Commission for assessment.  However in a generalised sense it may be noted that the overwhelming majority of Commission orders are complied with by the Respondent.”

121    The lack of an undertaking was raised with counsel for the respondent at the hearing of the application.  Relevantly counsel said:-

“The undertaking I can’t really address.  ... it just isn’t there but I can indicate in those terms that we don’t and I will again that the union doesn’t regard the commission ... the orders of the commission, I suppose, as an optional exercise.  … there isn’t an undertaking here but at the same time we don’t ... this sort of conduct is not a common theme for us I suppose” (T46).

122    A little later counsel said:-

“I will convey this much that the lack of an undertaking is a specific instruction I have.  The rationale for it that I will put on the record is fundamentally this; because it is an issue of member’s safety in this case it is a fundamental issue that goes to the very day to day life and limb health of our members and their ability to come home from work uninjured.  For that reason there is no undertaking in this particular … case.  What I can say though is that the union does regard the orders of the commission with a great deal of seriousness, if not upmost seriousness, and it’s not a ... it’s not an exercise that an order of the commission is not [sic] treated lightly by the union in any way, shape or form.”  (T47; the dots represent the removal of some immaterial words).

123    There is clearly a slip in this last submission.  Counsel intended to say that the respondent did not take the orders of the Commission lightly.  With respect however to the extent that there has been an explanation for the lack of an undertaking, I do not accept it is a good one.  In this particular case, the order specifically catered for the safety of the HSAs.  In addition as will be elaborated upon later, if the respondent thought the order was made in error because it wrongly compromised the safety of its members, a notice of appeal and urgent application for a stay of the operation of the orders could have been made to me under s49(11) of the Act.  A stay application which had some reasonable evidence or information to support a contention that an order of the Commission had the effect of compromising the safety of a group of employees would be likely to get a sympathetic hearing at least on an urgent application for an interim order.

124    More generally, the attitude of the respondent as conveyed by the lack of an undertaking fundamentally misunderstands its obligation as a matter of law to comply with the orders of the Commission.  As set out in detail earlier, the respondent has considerable rights and privileges as an organisation which is registered under the Act.  These rights and privileges can be exercised for the benefit of its many members.  With these rights and privileges are concomitant duties and responsibilities.  One of these is to comply with the orders of the Commission.  It is not a pick and choose affair; even where the respondent may think important questions of safety are involved.  The responsibility of the respondent was to return to the Commission and try and pursue the matter within the law; not to act outside it.

Seriousness of the Contraventions

125    In Re SSTU at [81] and [83] I said:

“81 … 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.

...

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.”

126    Beech CC in Re SSTU did not expressly or implicitly indicate whether he accepted this analysis.  I do not however detect anything in his reasons which was contrary to the process described.  At [151] Beech CC referred to seriousness and said it was a “blatant example of a union defying a Commission order …”.  At [160] Beech CC said that there were degrees of seriousness and the breach was confined to a relatively short period of time, but nevertheless caused a significant disruption to the state’s education system and to an unspecified number of students and parents.  At [164] Beech CC referred to the “complete disregard for the State IR system”.  At [165] Beech CC referred to the seriousness of the contravention as constituted by a “conscious and deliberate decision of the executive of the SSTU to flout an order of the Commission …”. 

127    Smith SC in her reasons at [170] said:

“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.”

128    Given the agreement of Smith SC to [83] of my reasons in Re SSTU, what is there expressed may be taken to be the opinion of the Full Bench.  The proviso, to the extent that there is one, in the reasons of Smith SC at [170] does not change this.  Whilst I did not attempt to rank the importance of the factors, in considering seriousness or the imposition of the penalty, the reason for and way in which an order is contravened will always be an important factor.

129    In addition both parties to the present application made their submissions on seriousness by addressing the factors identified in [83] of my reasons in Re SSTU.  Whilst seriousness does not have to be approached in a compartmentalised fashion, in part because the section requires an overall assessment, it is convenient to follow the course adopted by the parties in the present case.

(a) The Type of Order Contravened

130    The applicant submitted the order contravened was primarily for the respondent and its HSA members to lift the ban on HSAs participating in Code Black incidents for a period of six weeks to allow for discussion between the parties as to other options for managing Code Blacks.  It was submitted the order was made after consideration of the requirements of the Act and the test to be applied to the issuing of interim orders.

131    The respondent submitted it was significant that it was an interim order as a contravention of a final order following arbitration may be regarded as a more serious contravention.  I do not accept this.  There is no reason why the contravention of an interim order is necessarily less serious than that of a final order.  It will depend upon precisely what a party has been ordered to do or refrain from doing in the particular case and the surrounding facts and circumstances.

132    The respondent also submitted that unlike in Re SSTU, the order of the Commission was not explicitly made because of the public interest.  Whilst I accept the Commissioner did not expressly refer to the public interest in the making of the order and her reasons, there was reference to the requirements of the Act.  Section 26(1)(c) of the Act requires the Commission to take into account the “interests of the community as a whole” where appropriate.  This was such a case.  There is clearly a community or public interest in the resolution of the dispute about HSA participation in Code Blacks.  This is because of the nature of a Code Black and its potential to have an impact upon the safety of not only HSAs but also nursing and other medical staff, patients and other members of the public who may be visiting or otherwise attending at the hospital.  Accordingly I do not place any weight on this point.

133    I have set out earlier what the order required the respondent to do.  Most importantly for present purposes it required the respondent to direct its members to comply with the order and to lift the ban on HSAs participating in Code Blacks for a period of six weeks to enable discussions to take place.  As particularised in the application the respondent decided to take neither of these actions.  .

134    The order was made in the context of an industrial dispute which had continued for some time and in which the Commission had been involved for about six months.  The making of the order was the Commission’s assessment of the way in which the dispute should progress to prevent the deterioration of industrial relations and enhance the prospects of resolution.  The order contained a process to facilitate conciliation; being for the parties to meet within a week and then report back to the Commission as to progress.  There was also liberty to apply to vary or rescind the order.  The actions of the respondent undercut and undermined the way the Commission thought was best to progress the resolution of the industrial dispute.  This was a disrespectful denial of the role of the Commission as an independent conciliator.

(b) The Circumstances within which the Order was Made

135    This issue follows on from that which I have just addressed.  The evidence before the Full Bench was primarily for the purpose of describing the factual background and circumstances within which the order was made and contraventions occurred.  The applicant submitted in summary that the order was made in the context of an ongoing industrial dispute, was for a period of six weeks and expressly for the purpose of giving the parties an opportunity to enter into discussions with a view to resolving the dispute amicably.  I accept this.

136    The respondent made lengthy submissions on the topic.  In doing so it did not cavil with the point that I made at [104] of my reasons in Re SSTU that the merits of the dispute before the Commission are not relevant to this application.  It was submitted however that “without such matters being at least available for the Full Bench, a full consideration of the factual matrix against which the Order was made is not possible, and with that in mind a number of matters herein are raised for that purpose only”.

137    The respondent then set out the chronology of the proceedings in application C20 of 2007, what the dispute involved and its assessment of the progress made during negotiations prior to the order.  As set out in the chronology the respondent informed the hospital of its concerns about the safety and legal protection of HSAs in Code Blacks on 3 August 2007.  The application for a compulsory conference was filed by the Minister on 13 August 2007.  A conference was then held.  Between 16 August 2007 and 13 March 2008, 13 report back conferences were held.  The work ban was first imposed on 3 August 2007 and then lifted following a recommendation by the Commission on 16 August 2007.  The lifting of the work ban took place from 20 August 2007 until 4 December 2007 when the respondent notified the hospital that it intended to reinstitute them, commencing on 10 December 2007.  This was expressed to be because of the lack of progress by the hospital.  The work ban continued in place until the order was issued by the Commission on 1 February 2008.  The respondent did not lift the work ban then or at any time within the six week period that it was required to do so.  The information before the Full Bench is to the effect that the work ban continues in place.

138    On each occasion in the period of six weeks from 1 February 2008, when HSA members did not attend upon a Code Black because the respondent had not lifted the ban, this was contrary to what the order required.  I will later elaborate upon this.

139    The respondent submitted the HSAs regarded the issue of participation in Code Blacks was of “paramount importance”.  Based upon the evidence before the Full Bench I accept this to be so.  In addition the Commission in making the order accepted the HSAs had “genuine issues of concern”.  As reflected in the evidence before the Full Bench the issues of concern were very significant and understandable.  They were about:

(i) Not having proper training in dealing with all aspects of involvement in Code Blacks.

(ii) A lack of proper training of nursing staff so that they would understand their role and that of the HSAs in a Code Black.

(iii) Significant safety risks in HSAs participating in Code Blacks in the way in which they were required to, particularly in the context of an escalating number and seriousness of Code Blacks and the HSAs’ “coal face” role (T16).

(iv) The uncertainty of their legal liability protection in participating in Code Blacks.  The HSAs thought the legal protection was inadequate.

140    The respondent also emphasised what they considered to be the lack of progress made during the negotiations leading up to the making of the order and the frustrations of the HSAs about this.  Again I can accept and understand the frustrations of the HSAs.

141    By the same token I understand the difficult position that the hospital and the Minister were placed in.  There is no doubting the importance of the hospital having a proper method of dealing with Code Blacks.  The potential for a dangerous and unpredictable incident to rapidly develop requires an effective strategy to deal with it.

142    There was accordingly a dispute between the Minister and the respondent of some depth about something substantial.  It was brought before the Commission at an early stage to try and resolve.  The Commission was then seized of the dispute and both parties engaged in the process of conferences and reports back to the Commission to endeavour to resolve it.  In addition, both parties had the option of trying to move the dispute towards arbitration, although neither did or has done so.  The Commission, doing its best to try and continue to facilitate the resolution of the dispute, made the orders which it did.  In making the orders the Commission was mindful of the very real concerns of HSAs about the subject matter of the dispute and in particular their safety.  This was however accommodated in the order.

143    The Commission also made the finding in its reasons that both parties had negotiated “in good faith” and the Minister would continue to discuss the HSAs’ issues if the work ban was lifted for six weeks. 

144    The respondent submitted that what the Commissioner said in her reasons as set out at [13](i)(v) above, “effectively forced the Commission’s hand; SCGH was effectively threatening to walk away from the Commission unless its demands were met”.  Although this submission was expressly said to be made “respectfully” it contains at least a hint of disrespect.  This is in the reference to the forcing of the hand.  To say that has a tendency to suggest the Commission acted other than as a neutral conciliator, when this was clearly not the case.  In any event the point is immaterial to assessing seriousness.  The Commissioner made the order.  It had to be followed. 

145    In assessing seriousness I do take into account that the contravention did not occur at the outset of the dispute and in immediate defiance of the way in which the Commission thought best to proceed.  As mentioned the respondent did cooperate with the Commission’s efforts to resolve the dispute for some period of time including acting on its earlier recommendation to lift the work ban.

(c) The Reasons the Contravention Took Place

146    In its outline of submissions the respondent summarised the reasons for and explained the contravention at [78.1]-[78.2] and [79] as follows:

“78.1 The LHMU is guided by, represents the interests of, and advocates for, its membership.  The HSAs at SCGH (being the majority of approximately 200 HSAs) had indicated in eminently reasonable, firm, and continuing terms that the issue of attendance upon Code Black incidents with neither training nor legal coverage was a major issue of concern to the HSAs.

78.2 More importantly, the dispute and issue at hand – acknowledged even by the Commission as a “genuine issue of concern to HSAs” – was the fundamental safety of HSAs in their employment with SCGH in being called on to participate in Code Black incidents without adequate training or equipment, and also the lack of protection offered by SCGH to its HSA staff.

79. The contravention was not made in the interests of advancing a position in negotiations or in the hope that something merely financial such as a pay rise would be offered to employees.  Indeed repeated alternative proposals for settlement were made by LHMU well after the work bans were imposed to try and resolve the matter.  As advised by its membership, the LHMU acted as it did because it perceived a very serious danger that its membership was placed in.”

147    With respect these explanations show the respondent failed to act in accordance with its duties and responsibilities under the Act.  The respondent is bound to comply with the orders of the Commission.  Although it represents the interests of its membership it cannot do so in a way which is contrary to this requirement.  This is a fundamental of the industrial relations system of the state and the rule of law.

148    The evidence adduced by the respondent about what happened at the meeting on 1 February 2008 demonstrates that Mr Kelly, the secretary of the respondent, did not act in the way in which he ought to have.  He was required on behalf of the respondent to direct the members to comply with the order which included them and the respondent lifting the work ban.  If in response the members said that despite the order of the Commission they wanted to continue with it, there were legitimate avenues open to the respondent.  I have already set these out.  The respondent’s counsel accepted that it understood these two options were available.  The respondent chose not to take either of them and instead failed to act in accordance with the order.

149    In saying this I do not intend to underplay the importance of the respondent acting to protect the understandable safety concerns of its members.  And I can accept that the respondent, who was represented by Mr Kelly at the relevant time, was in a difficult position given the strident views of its members and that they considered their safety was at risk.

150    Given the order however the respondent did not respond to this in the right way.  The error in its actions commenced with the first flyer which indicated to the members that there was a choice as to whether the order had to be followed or not.  There was no such lawful choice. 

151    At the meeting the members conveyed that they did not want to follow the order because of their concerns.  At that point, if not earlier, the respondent through Mr Kelly ought to have explained the order and told the members that the work ban had been ordered to be lifted and they should comply with the order.  There is no evidence that he did so.  Also as I have already indicated I do not accept the concern about safety meant the Commission order could not be followed.  This is because of the way in which safety was specifically addressed in the reasons accompanying the order. 

152    To some extent however I accept that the contraventions were born by the frustration of the HSAs and the respondent at what were perceived to be the hospital’s lack of progress in dealing with the issues raised.  This helps explain the contraventions but does not of course justify the actions taken.

153    The fact that the members of the respondent wanted to continue the work ban distinguishes this case in a significant way from Re SSTU.  In that case the executive of the SSTU made a considered decision, after taking advice, to contravene the order and directed its members to do so without consulting them.  Worse still, at that time the order expressly applied to the members; albeit in error as the Full Bench later decided in The State School Teachers’ Union of WA (Incorporated) v Director-General, Department of Education and Training (2008) 88 WAIG 698.  This was not pointed out to the members in the communication which advised them of the directive to hold the stop work meeting in contravention of the order.  In addition as found by the Full Bench the contravention of the order was “pointless” as the SSTU could have held the meeting which the order had prohibited, outside of work hours.

154    The flyer issued after the meeting tied the non-removal of the ban “this time” with compliance with the Commission “last time” and there being “no improvement in the situation”.  This also misstated the position.  The “last time” referred to was the recommendation by the Commission to remove the ban.  On this occasion there was an order to remove the ban.  What the flyer said was defiant of and disrespectful to the Commission.  The flyer’s inclusion of there being “talk of fines for disobeying the Commission, however that will be directed to the union not individual members”, indicated the respondent knew precisely what it was doing and the possible or likely sanction for failure to follow the Commission’s order.  It can also be seen as an encouragement to the members to defy the order of the Commission because the fines would not be directed to them.  Again all of this was contrary to the requirements of the order and the responsibilities and duties of a registered organisation.

(d) The Nature of the Contravention

155    In Re SSTU at [115] I cited Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 112-113.  There the High Court distinguished between what was referred to as a contumacious, meaning a wilful or deliberate, contravention as opposed to a “casual, accidental or unintentional” one.  The former type of contravention is clearly more serious.  As I also there said, if the contravention is accompanied by some “public defiance” it is more deserving of a penalty.  In support of this proposition I cited Construction, Forestry, Mining and Energy Union v BHP Steel (Ais) Pty Ltd (2003) 196 ALR 350 at [36] and [38] and Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 per Kirby P at 315.  There Kirby P said:

“The most serious class of contempt, from the point of view of sanction, is contumacious contempt.  Not every intentional disobedience involves conscious defiance of the authority of the court which is the essence of this class of contempt: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500.  This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a single interference with property rights manifested by a court order: cf Root v MacDonald 157 NE 684 (1927) at 688; 54 Am LR 1422 (1927) at 1429.”

156    In Prothonotary of Supreme Court of New South Wales v McCaffery [2005] NSWSC 1237 Latham J at [13] said that the word “contumacious” was considered in the context of contempt charges in Wood v Galea (No 1) (1995) 79 A Crim R 567, where Hunt CJ at CL at 570 referred to dictionary definitions and said the term meant “stubbornly resistant to authority; wilfully obstinate” or “wilfully and obstinately disobedient to authority”.  The case before Latham J was one of contempt by a person appearing in court as a barrister when not the holder of a current practising certificate. 

157    The applicant contended the respondent was fully aware of the terms and implications of the order which was made.  It was not an inadvertent contravention caused by misunderstanding.  By reference to Re SSTU it was submitted the contravention was wilful and deliberate.

158    The respondent submitted that in contrast to Re SSTU the contravention could be described as “casual or deliberate, with a minimum of public defiance if any, rather than a very deliberate decision involving public defiance”.  The first part of this submission cannot be accepted.

159    In my opinion the evidence of the witnesses and the documents which have earlier been set out clearly establish that this was a considered, deliberate and wilful contravention of the orders of the Commission.  There was no misunderstanding of the terms or requirements of the order.  The order was clearly capable of being complied with.  The respondent could have but chose not to direct its members to comply with the order.  This was a choice taken after a meeting and consideration of the issue.  It was not a spur of the moment reaction.  The contravention continued for six weeks.  The respondent could have but chose not to seek a variation of the order or file an appeal and seek a stay of its operation.

160    In my opinion there was some resistance to the authority of the Commission in what was said in the flyer.  That was made public to some extent as the flyers were placed in lift wells in the hospital.  The flyer also indicated the respondent understood the prospect of a fine being imposed and to put it colloquially, was prepared to “cop it”.

161    As set out in the witness statement of Ms Love and not contested, there was television coverage on the day of the 4 February 2008 meeting on the Channel 10 News.  It was reported the respondent would not be lifting the work ban despite the order of the Commission.  Although the respondent could not control whether the story was covered by the media and if so what was said, it must have been aware of the possibility of media coverage of its actions.  The news included a short comment made by Mr Kelly.  There is no suggestion that Mr Kelly was not speaking about the events of that day or other than agreed to speak to the media.  I accept however the respondent’s counsel’s submission that what Mr Kelly said, as reported on the television news, could not of itself be characterised as public defiance of the Commission.  This was again a marked distinction from Re SSTU.  There the fact of the contravention was widely publicised, quite deliberately by the SSTU, and the consequential disruption to the state education system, which the order of the Commission specifically tried to avoid, was apparent for all to see and many to experience.

(e) Other Contraventions of the same or Related Orders

162    I have to some extent referred to this issue above.  The order required the ban to be lifted for six weeks.  It was not lifted for any time within the six weeks and accordingly the contravention spanned that period.  There was however no other or related orders which were contravened and the respondent did act in accordance with the recommendation of the Commission earlier in the dispute.

(f) The Consequences of the Contravention

163    The contravention of the order clearly hindered the functioning of the Commission and was resistant to its authority.  The Commissioner who was seized of the dispute clearly formed the opinion that it was appropriate to issue the order to try and aid the resolution of the dispute and maintain industrial relations.  The respondent did not like the Commission’s order and deliberately did not follow it.

164    There has been evidence about the way in which the work ban had an impact upon the functioning of the hospital in dealing with Code Blacks.  The respondent submitted however that the evidence was not capable of convincing the Full Bench, on the balance of probabilities, that the contraventions had any effect upon the public “in the way of public safety”.  The respondent submitted the assertion made by Ms Love about this was “unsupported” in that she did not have qualifications or information to back up or corroborate what she said.

165    I accept the latter point.  I also accept there was no evidence before the Full Bench that the imposition of the work ban in defiance of the order over the six week period caused an incident in which public safety was compromised.  I do however think that the evidence is capable of and does satisfy me that the continuation of the work ban, despite the order and for a period of six weeks, made it possible and more likely that there was an impact upon the safety of those who could come into contact with a Code Black incident including members of the public. 

166    The evidence to support the finding in the last paragraph is partly circumstantial but it is in my opinion compelling.  The evidence stems from the nature of a Code Black, the method used to deal with them by the hospital, the role played by HSAs in dealing with them, the number of Code Blacks during the relevant period of six weeks and the limited way in which the hospital could or did plug the gap left in the Code Black response by the work ban imposed by the HSAs.

167    The procedure in dealing with Code Blacks involves the rapid assembly of a multidisciplinary team.  As stated in the evidence adduced on behalf of the respondent, the HSAs are most often the first members of the team to respond to the Code Black and deal with the emerging situation.  The failure of the HSAs to perform this function quite clearly left a hole in the strategy to deal with Code Blacks.  The attempt at plugging the hole, namely the addition of one security officer does not seem on the evidence to be a complete or sustainable resolution to the problem left by the HSAs not being involved in Code Blacks.  The evidence of Ms Davies, Mr Goodson and Ms Love was clearly that the hospital’s effectiveness in potentially dealing with Code Blacks had been diminished.  The paragraph of Mr Goodson’s statement which I have quoted earlier reinforces the point.

168    In a sense the answer to the submission made by the respondent is supplied by the reasons for the concern of the HSAs about Code Blacks.  They are fearful for their safety in part because of the nature of Code Blacks and because they are overwhelmingly the first people on the scene.  The fact that they can develop quickly, unpredictably and dangerously shows the need for somebody to be close to or on the spot to quickly deal with the situation.

169    The Commissioner’s reasons noted the “problems” of the way the Minister had used to cover the ban and gave an example of the “pressure placed on the hospital and its other employees, including security officers, because of the ban”.

170    The statistics attached to Mr Goodson’s witness statement show there were 156 aggressive incidents at the hospital in February 2008 and 146 in March 2008.  The six weeks during which the work ban ought not to have been imposed covered six weeks of this period.  There were therefore a large number of Code Black incidents which because of the work ban imposed by most HSAs had to be dealt with in other than what the hospital had decided was the optimum way.

171    In the statistics attached to the statement of Ms Love the number of Code Blacks reported on the Code Black feedback forms in February and March 2008 were 72 and 68 respectively.  The percentage of Code Blacks where there were less than two HSAs in attendance not including the HSA co-ordinator were 41.67% and 39.71% in February and March 2008 respectively.

172    The respondent also submitted that the “low level of effect on public safety may be divined” by the hospital’s response being to “place an additional security guard on duty to cover the entirety of the SCGH grounds”.  I do not accept this submission in its entirety.  Again it flies in the face of the respondent’s case.  Additionally there were practical limitations on what the hospital could do in response to the work ban.  Mr Goodson in his evidence, as I have described it, alluded to this.  So too did Ms Love in her answers to the questions of the Senior Commissioner as earlier quoted.

173    In my opinion the evidence establishes there were serious consequences from the actions of the respondent in contravening the orders.

174    Having said this it is also relevant that the Minister decided not to take the dispute to arbitration when he could have.  Additionally, from the evidence of Ms Love, the hospital has now looked at other alternatives, albeit it is reluctant to proceed with them, and the participation in Code Blacks remains a duty of the HSAs.  Nevertheless this aspect of the evidence does temper to some extent the seriousness of the consequences of the actions of the respondent.

(g) Status of the Contravener

175    The respondent is a registered organisation under the Act.  It has submitted, without demur by the applicant, that it is the largest registered organisation in the state.  It is well resourced.  It understood the order of the Commission.  Quite clearly it knew that it ought to have followed it but chose not to.

176    It has a large membership across different industries.  By its actions it was prepared to risk that a s84A application could be commenced with the associated risk of the possibility of suspension or cancellation of its registration and therefore the substantial disenfranchisement of its members from the jurisdiction of the Commission.

177    The respondent submitted and the applicant accepted that it had not been “convicted” of any contravention of s84A of the Act in the past.  It was submitted that it conducts itself in “legitimate and legal industrial action on behalf of its members.  Accordingly the respondent may be said to be of good character insofar as that issue is relevant in assessing the status of the convenor”.  I accept that submission.

(h) Conclusions on Seriousness

178    As I set out in Re SSTU it is necessary to form an overall view of the seriousness of the actions of a contravener.  This is to be done by synthesizing the relevant factors, facts and circumstances.  For the reasons set out above in my opinion the two contraventions of the order of the Commission were serious to a substantial degree.  This is despite the fact that the HSAs and the respondent on their behalf had considerable genuine concern about involvement with Code Blacks as I have described.

179    The contraventions were contumacious in the sense of being quite deliberate, wilful and calculated.  The meaning and effect of the orders was well understood but a decision was taken not to comply with them.  There was some resistance to the authority of the Commission in the flyer which communicated the decision to contravene the orders to the members of the respondent and which could be seen by members of the public.  The contraventions undermined the functioning of and were disrespectful to the Commission in trying to resolve the dispute.  Additionally for a period of six weeks the contraventions made it more difficult for the Minister and the hospital to deal with potentially dangerous Code Blacks.  The concern of the HSAs about the order made by the Commission could have been dealt with in legitimate ways as I have said.  But the respondent, aware of this, chose not to take such a course.  Although the respondent’s counsel tried hard to argue that these contraventions were less serious than the one in Re SSTU, both applications contain the same serious feature of a well established and resourced organisation deciding in effect to thumb its nose at an order of the Commission it did not like.  Having said that however I do accept that the contraventions were less serious than in Re SSTU, for the reasons I have set out and despite the aggravating fact in this case, not present in Re SSTU, that the contraventions spanned six weeks.

Mitigation

180    In Re SSTU I said the following at [87]:

“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”.”

181    Beech CC did not expressly refer to this paragraph but the factors which he took into account in determining the amount of the fine did not show any disagreement with this process.  The same may be said for the factors which were taken into account in mitigation by Smith SC at [173].

182    The respondent’s counsel did not on its behalf apologise to the Full Bench for the contraventions of the order.  The respondent has however admitted the contraventions and cooperated with the proceedings.  The admission of the two contraventions of the order has saved the applicant and the Full Bench time and resources and has facilitated the course of justice.  These are positive factors of mitigation.  To some extent however they are tempered by the failure to give an undertaking not to contravene the orders of the Commission in the future.  This suggests that the “lesson may not have been learned”.  The respondent is clearly leaving open the prospect that it may refuse to follow the orders of the Commission in future.  This suggests an element of resistance to the authority of the Commission which is not in mitigation.  It also suggests a misunderstanding of the role of a registered organisation under the Act and in its interaction with the Commission; and a lack of thought as to the potential impact on the whole of its membership that a s73 direction could have.

183    Counsel has also endeavoured to explain the reasons for the contraventions as set out above.  The respondent has been full and frank in attempting to explain its position and that of its HSA members and that has been of assistance to the Full Bench.  As stated there has been a lack of any relevant record of successful s84A applications against the respondent which is of substantial mitigation.

Appropriate Disposition

184    In Re SSTU at [70]-[76] I set out my understanding of the nature and purpose of enforcement applications as follows:

“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.

...

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).”

185    These paragraphs were not expressly referred to by Beech CC.  Smith SC agreed with this aspect of my reasons at [168] and added at [169]:-

“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.”

186    I respectfully agree with these observations of Smith SC. 

187    Section 84A was first inserted into the Act by the Acts Amendment and Repeal (Industrial Relations) Act (No 2) 1984 (WA).  The bill which became this act was read for a second time in the Legislative Assembly on 18 October 1984 by the Hon D Parker MLA. After the hearing of the application the Full Bench had the opportunity to consider the second reading speech. It had not been addressed at the hearing and so the parties were invited to make submissions about the extent to which it could be used by the Full Bench.

188    Both parties took up the invitation. The applicant did so by reference to the limits imposed by s19(1) of the Interpretation Act 1984 (WA). It was submitted that under the circumstances under which s19(1)(b) stipulate extrinsic materials may be used to assist “in the ascertainment of the meaning of the provisions” did not apply as the meaning of the section was not “ambiguous or obscure” and the ordinary meaning did not lead to an “absurd” or “unreasonable” result. It was submitted that recourse could be had to the second reading speech for the purpose set out in s19(1)(a) of the Interpretation Act 1984 (WA); to confirm the meaning of s84A is “the ordinary meaning conveyed by” its text. The respondent, relying principally on the reasons of Lord Diplock in Fothergill v Monarch Airlines Ltd [1981] AC 251 at 279-280, submitted there was no need to refer to the second reading speech.  The respondent did not refer to s19(1) of the Interpretation Act 1984.

189    I do not think it is necessary to have recourse to the second reading speech to decide the meaning of s84A. That can be ascertained from its terms. It is also important to remember the limited role which extrinsic materials have in the process of construing legislation. (See Chief Executive Officer, Department of Agriculture and Food v Ward (2008) 88 WAIG 156 at [107]-[108]). In my opinion however there is a paragraph of the second reading speech which confirms that the purpose of enforcement applications is in accordance with what was said by Smith SC and I in Re SSTU.  To quote this paragraph is not in my opinion contrary to what was said in Ward. The authorities establish that extrinsic materials may be considered for purposes other than those limited by s19 of the Interpretation Act and the similar provisions in other states. (See for example Yates v the State of Western Australia [2008] WASCA 144 and Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 per McHugh J at 112-113)

190    The relevant paragraph is:

“It is imperative that all parties abide by conciliation orders.  Failure to accept the authority of the commission reduces the credibility of the system and creates community dissatisfaction with the system of conciliation and arbitration.  The continued use of some form of enforcement of commission orders is therefore necessary in the continuation of an effective industrial system (2653).”

191    In my reasons in Re SSTU at [89] I also said:

“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 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.”

192    In my opinion having regard to the lack of any relevant undertaking, the serious nature of the contraventions and the nature and extent of mitigation, a financial penalty is the appropriate disposition.  In my opinion the contravention is too serious to be disposed of by a caution.  In addition I do not think that a direction under s73 of the Act is appropriate.  It was not sought by the applicant.  In Re SSTU at [100] I considered some of the circumstances in which it would be appropriate to make a s73 direction.  These were “an exhaustion of other possible dispositions” of the contravener “in the past and/or a series of wilful and serious” contraventions of Commission orders “and/or widespread public disruption of a serious or lengthy nature” caused by the contravention of the order.  None of these apply in the present case.  The issuing of a s73 direction would be a disproportionate response by the Full Bench to the contraventions.

193    The next question is the amount of the penalty.  Before considering this I need to consider some important submissions made by the respondent’s counsel which are relevant to this.

Re SSTU and the Penalty

194    In Re SSTU at [90]-[97] I made some observations about the purpose of imposing a penalty and the basis upon which the amount should be assessed.  I did so in the context of saying the maximum penalty of $2000 was low in both an “absolutist” and “comparative” way ([90]).  In my opinion these paragraphs were not, in their entirety, explicitly or implicitly agreed with by Beech CC or Smith SC.  This is significant as the respondent has submitted there were some errors made in this discussion which ought to be reviewed by the Full Bench.  This submission, respectfully made, does not therefore face the hurdle that the reasons were those of the Full Bench, but simply a member of it.  I will consider the criticisms of my reasoning shortly.

195    Before doing so it is appropriate to record that the applicant did not seek any review of the reasoning contained in Re SSTU.  The applicant’s counsel submitted the process of assessing the amount of the penalty in that case did not markedly differ between Smith SC and I.  Counsel pointed to my reasons at [142]-[144] and the reasons of Smith SC at [173].  In addition one might refer to the reasons of Beech CC at [165] and [166].

196    I said at [142] of Re SSTU, having regard to the seriousness of the contravention, the proffered undertaking, mitigation and other relevant circumstances, a penalty of close to the maximum was required.  At [144] I assessed this to be $1500.

197    Beech CC at [165] said that the maximum fine of $2000 was “hardly a significant sum of itself”.  At [166] Beech CC referred to two significant factors of mitigation and said that he thought a penalty of $1500, three quarters of the maximum fine, was the appropriate penalty.

198    Smith SC at [173] said she did not think something “close to the maximum fine” should be imposed because she was satisfied there were mitigating circumstances.  These were then set out.  Smith SC said that whether the maximum fine which could be imposed under s84A of the Act is an adequate amount was a matter for Parliament and that courts and tribunals “are bound to apply the law as it stands”.  Smith SC said that in her opinion “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”.  Smith SC then referred to relevant facts and circumstances and applied a “discount of 25 percent to the maximum amount of a fine that can be imposed under s84A”.

199    It can be seen that perhaps the major distinction between the reasons of Smith SC and my own was whether a fine of $1500 was or was not considered to be “close to the maximum”.  Additionally whilst Beech CC and I both commented upon the maximum fine of $2000 being low, Smith SC did not.

200    The respondent expressly said it did not take issue with my observation at [94] of Re SSTU that the purpose of a financial penalty in s84A actions was to penalise the transgressor when it was not appropriate to accept an undertaking, issue a caution or make a s73 direction.  The respondent also agreed that the principles used in sentencing in the criminal law jurisdictions had some application to s84A actions.  (See Re SSTU at [94]-[95]).

The Criticised Paragraph

201    The respondent took issue however with what I said in Re SSTU at [97] as follows:

“Accordingly I do not think the Full Bench should necessarily reserve a penalty of $2000 or something close to it for only the worst type of case not warranting a s73 direction.  A 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.”

202    This comment was made after describing the penalties which can be or have been imposed in other courts and tribunals in Western Australia and also in the Federal Court and assessing that the maximum penalty under s84A was low in comparison.  I also took into account that $2000 was not a substantial amount in an “absolutist” or general sense for the type of contraventions and contraveners which could appear before the Full Bench.

203    I have read and considered each of the submissions made at [18]-[51] of the respondent’s written outline.  I do not think it is necessary to refer to each of them.  This should not however be taken as any implicit acceptance of them all.  Some of the submissions were made about contexts quite different to the present situation.

The Statutory Enforcement Scheme

204    An argument of the respondent that I do accept is that it is the statutory scheme under the Act which needs to be the reference point in assessing the penalty.  It is unnecessary and possibly productive of error to look at whether the maximum penalty of $2000 is low compared to other courts and tribunals which exercise a different jurisdiction.   

205    This is reinforced by an understanding that the Act is about the industrial relations system of Western Australia.  An important part of that system is the rights and responsibilities of a registered organisation and the role of the Commission in their registration, control and sanction.  As I will set out, in addition, the Act pays specific attention to the differing ways in which and consequences of a person or entity contravening an order of the bodies and/or offices established under it, or otherwise committing contempt.  The jurisdiction of the Full Bench and the penalty provided for in s84A needs to be considered within these contexts.  The contents of s84A(3), limiting the jurisdiction of the Full Bench to particular types of contraventions, reaffirms this point.

206    In the respondent’s outline of submissions the different jurisdiction of the Industrial Magistrate’s Court and that of the Commission is described.  For example if a person contravenes a “civil penalty provision” as described in the Act, the Industrial Magistrate’s Court and not the Full Bench have jurisdiction to deal with it (s82, s83E and s84A(3)).  The Industrial Magistrate’s Court may, amongst other things, make an order imposing a penalty, not exceeding $5000 in the case of an employer, organisation or association, and $1000 in any other case.  (See s83E(1) and for example s49F, s49O, s70(3), s97XY and s102(3)).  If an order is made to prevent further contravention of a civil penalty provision and that is not complied with, a penalty of $5000 and a daily penalty of $500 may be imposed.

207    The Industrial Magistrate’s Court also has jurisdiction to enforce contraventions of industrial instruments (s83) and unfair dismissal orders made by the Commission (s83B).  In each case the Act provides that if certain orders of the Court are not complied with a penalty of $5000 and a daily penalty of $500 may be imposed (s83(8) and s83B(10)).

208    Under s83D of the Act the Industrial Magistrate’s Court has “jurisdiction to hear and determine, under the Criminal Procedure Act 2004, prosecutions for any contravention or failure to comply with this Act that constitutes an offence”; see for example s78, s96C-E and s112A(2).  Again s82 and s84A(3) makes it clear the Full Bench does not have that jurisdiction.  Relevantly s78 of the Act provides that a person who is or has been a finance official of an organisation who fails to comply with an order under s77(2)(e) by an Industrial Magistrate’s Court to do or cease doing something, commits an offence and is liable to a penalty of $5000 and a daily penalty of $500.

209    A contravention of two types of orders made by an Industrial Magistrate’s Court may be enforced by the Supreme Court and the Industrial Appeal Court as for a contempt.  Firstly there is s80(3) which deals with a person who performs or attempts to perform the functions of an officer of an organisation when they have been disqualified from holding office under s80(1).  This is “an offence punishable by the Supreme Court as for a contempt”.  Secondly under s96J(4) the failure of a person to comply with an order made by an Industrial Magistrate under s96J(1), to do or cease doing something to prevent any further breach of s96C (discrimination because of membership of an organisation), s96D (refusal to employ and discriminatory and injurious acts against people performing work for employers because of membership or non-membership of an organisation) or s96E (discrimination because of non-membership of an organisation) “is to be taken to commit a contempt of the Industrial Appeal Court and is punishable by that Court under section 92”.

210    Section 92(1) of the Act provides that the Industrial Appeal Court “has the same power to punish contempts of its power and authority as has the Supreme Court in respect of contempts of Court...”.  The sub-section goes on to say that “without prejudicing the generality of the power” the Industrial Appeal Court “may inflict a fine”.  The breadth of the scope of this power was described in Re SSTU at [72].  Section 92(3) expressly provides that that where a person contravenes an order made by the Industrial Appeal Court in the exercise of authority conferred by the Act a contempt of court is committed.  Section 92(4) provides that:

“(4) 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, has and may exercise like powers as are conferred on the Court by this section.”

211    As stated therefore the legislature has had regard to the differing roles and status of the bodies and offices which may make orders under the Act and quite deliberately set up different regimes and sanctions for breaches of orders or contempt.  This is an important part of the context of the maximum financial penalty under s84A of the Act.  It should also not be forgotten that in a s84A application against an organisation the ultimate sanction the Full Bench has in its armoury is to make a s73 direction leading to the possible suspension or cancellation of registration. 

212    I accept therefore the thrust of the respondent’s submissions about the unanswered questions I posed at [96] of my reasons in Re SSTU; which is that they should be answered, “because in the context of the Act as a whole the legislature says so”.

213    To me the problem however, as described in Re SSTU at [90], is the “chasm” between the sanction of a s73 direction and the maximum financial penalty.  As mentioned below however, it is up to the legislature to decide if this is a problem and if so how to bridge the gap.

The Maximum Penalty

214    The respondent also submitted I should reconsider the comment in Re SSTU at [97] that the maximum financial penalty could be imposed for something other than the “worst type of case not warranting a s73 direction”.  I think this is appropriate.  The maximum penalty, even if it is low, should be reserved for such a case.  This is not to say it will never be imposed simply because a worse case can always be imagined.  This was made clear in Reynolds v Wilkinson (1948) 51 WAR 17 at 18, quoted in The Queen v Tait [1979] 46 FLR 386 at 398, a decision of the Full Federal Court which the respondent relied upon; and amongst many other cases, Veen v The Queen (No 2) (1988) 164 CLR 465 at 478.

215    As stated by Howie J, with whom Spigelman and Kirby JJ agreed, in R v Ronen (2006) 161 A Crim R 300 at [72]:

“The courts have always treated the maximum penalty for an offence as a pronouncement of the policy of the legislature: R v Oliver (1980) 7 A Crim R 174 at 177.  The maximum penalty reflects the seriousness of the crime in the mind of the public as given voice through parliament: R v H (1980) 3 A Crim R 53 at 65.”

216    The same point by reference to Oliver was made by the Court of Appeal of Victoria in R v McEachran [2006] 15 VR 615 at [56].

217    In Markarian v The Queen (2005) 228 CLR 357 Gleeson CJ and Gummow, Hayne and Callinan JJ in their joint reasons at [30]-[31] said:

“[30] Legislatures do not enact maximum available sentences as mere formalities.  Judges need sentencing yardsticks.  It is well accepted that the maximum sentence available may in some cases be a matter of great relevance.  In their book Sentencing, Stockdale and Devlin observe that:

A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century … or because it has more recently been set at a high catch-all level … At other times the maximum may be highly relevant and sometimes may create real difficulties …

A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].

[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case befre the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”  (Omitted from the quotation is the footnoted reference to Stockdale E and Devlin K, Sentencing (1987), at [1.16]–[1.18]).

218    In my opinion it is necessary to take into account the maximum penalty as a yardstick in the way described.  This is not without difficulty however when the Full Bench is looking at a maximum penalty which is not high and has not been increased in 24 years; and so in real terms has significantly diminished over time.  (See Re SSTU at [91]).  The effect of this is that whilst the purposes enforcement applications have not changed since the Minister spoke about them in 1984, the maximum fine has decreased in a practical sense.  It his difficult however to accept that this decrease is the product of a “policy” of the legislature and/or reflects the “mind of the public” as to the seriousness of a contravention (to use the words quoted above in Ronen).  In other words that a contravention of an order of the Commission is considered to be less serious now than it was 24 years ago.  Certainly the applicant did not so submit.

219    In, Sentencing, by E Stockdale and K Devlin, cited in the quoted paragraph of the joint reasons in Markarian, at [1.16] the authors refer to the problem of a low maximum sentence of imprisonment where “the courts often find themselves ‘bumping’ against it, as many individual offences would call for a sentence at that sort of level”.  This is not dissimilar to one of the problems at hand.  The low maximum penalty does not always allow the Full Bench to impose a penalty which can carry into effect the purposes of the imposition of a fine in the present context - to denounce, penalise and deter.  (See Re SSTU at [93]).  As stated in Stockdale and Devlin at [13.20] “fines that do not bite are ineffective as deterrents”.  The maximum penalty that can be imposed does not provide much, if any, “bite” upon or “sting” to large well resourced organisations like the present respondent or the respondent in Re SSTU, for a serious contravention of an order (see Re SSTU at [94]-[95]).  The respondent made submissions about the limitation of the impact that penalties can have in deterring conduct.  Whilst I accept there are problems with the criminological and judicial concept of deterrence, the Full Bench must take into account that high authority has said that the purpose of an application like the present is to deter.  Additionally the possibility for a penalty to have a deterrent effect is most likely in a situation, like the present, when the transgressor has the opportunity to think about the consequences of its actions.  This is demonstrated by the reference to fines in the flyer published after the meeting on 4 February 2008.

220    If however there is to be any remedy to the problems I have described, it is for the legislature to address.

Lessening the Impact of Mitigation

221    The respondent also took issue with my comment in Re SSTU at [97] about the impact which mitigation might have upon the amount of the penalty.  It was submitted that to lessen the effect of mitigation was to bias sentences towards the higher end of the range of financial penalties and was akin to interfering with the will of Parliament.  I do not accept this.  It is not an error to at times lessen the impact of mitigation in imposing a penalty.  This has been done in the criminal jurisdiction to achieve what has been described as a “firming up” of sentences.  An early example of this is in The Queen v Peterson [1984] WAR 329.  There Burt CJ discussed the firming up of the sentence for armed robbery, because of the prevalence of the offence, by:

“giving less weight to – which is to not ignore – mitigating factors which may be found within the antecedents of the prisoner.  That results in a ‘firming up’ of the sentence for such an offence and results in a sentence which more closely fits the crime and a sentence which, if the offender thinks about it in advance, is in reason predictable and certain, each of those qualities being central to the idea of deterrence” (332).

222    Whilst prevalence is not relevant to the present application, what his Honour said demonstrates that it is not in error to give less weight to factors of mitigation if there is a proper reason to do so.

Fixing the Appropriate Penalty

223    Despite what I said above about the weight to be given to mitigating factors, it needs to be borne in mind that the imposition of a penalty is not strictly a matter of logic (Veen v The Queen (No 2) at 476) or science (Lauritsen v The Queen [2000] WASCA 203 at [40]; The Queen v Raad [2006] VSCA 67; (2006) 15 VR 338 at [48]).  Therefore it can be distracting and possibly productive of error to try and quantify the extent to which mitigating factors will reduce the otherwise applicable penalty.  The imposition of the penalty is an evaluative judgment taking into account all of, but only, the relevant considerations (Markarian at [27]).  In the present context that includes the three things which s84A(4)(a) mandates.  The joint reasons in Markarian at [37] quoted with approval from the reasons of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at 611–12 [74]–[76].  Relevant to the present role of the Full Bench is the following:

“[74] [T]he reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be “increment[s]” to, or decrements from, a predetermined range of sentences.  That kind of approach, usually referred to as a “two-stage approach” to sentencing, not only is apt to give rise to error, it is an approach that departs from principle.  It should not be adopted.

[75] It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender.  Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong.  We say “may be” quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.  That is what is meant by saying that the task is to arrive at an “instinctive synthesis”.  This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features

[76] …  So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform”.  (Emphasis in original, footnote omitted).

224    The “task” as there described is that which needs to be undertaken by the Full Bench to determine the appropriate disposition in a s84A application including whether and if so what financial penalty should be imposed.

The Appropriate Penalty

225    In the present case the proved contraventions are of two orders made by the Commission on 1 February 2008.  The first contravention was constituted by the respondent, at the meeting which it held on 4 February 2008 or at any time prior to the deadline of 3:30pm on 4 February 2008, in failing to direct its HSA members to comply with the order made by the Commission.  The second contravention was constituted by the respondent not lifting the ban on participation in Code Blacks for six weeks from 4 February 2008.

226    I have earlier assessed the seriousness of the contraventions, the relevant mitigation and effect of the lack of an undertaking.  It is unnecessary to repeat what I have said.  The imposition of the penalty involves an assessment of the combination of these and other relevant factors against the yardstick of the maximum.

227    At [166] above I have quoted from passages of Re SSTU which set out the purposes and importance of applications such as the present.  I add that, as said by Gzell J at [20] in Carlingford Fleet Pty Ltd v Sylvania Holdings Pty Ltd [2007] NSWSC 827, in the context of a contempt by way of a breach of injunctions, to “disobey a court order is to impugn the respect and dignity of the judicial process”.  In addition, in Director-General of the Department of Fair Trading v Yang [2002] NSWSC 754; 132 A Crim R 438, Buddin J dealt with a contempt by way of a breach of a court order and said at [11] that it was “critical that the authority of the courts is not subverted by those, such as the offender, who seek to act in defiance of orders made by the courts”.  (See also Registrar in Equity v Froome [2001] NSWSC 1029 per Barrett J at [12]-[13]).

228    The conduct of the respondent strikes at the heart of the workings of the industrial relations system of the state; which as I have said above exists in large part to protect employees who are members of and can be represented by a registered organisation.  This gives the organisation certain rights and privileges under the Act.  A concomitant responsibility however is to comply with the Act and the orders of the Commission as an independent conciliator and arbitrator.

229    The applicant did not make any submissions on the amount of the penalty which ought to be imposed, other than agreeing with the submission of the respondent that the contraventions were less serious than those which led to the financial penalty of $1500 in Re SSTU.  As I have said I regard the present contraventions as less serious than that in Re SSTU.  Having said that it must be acknowledged that there is always some difficulty in trying to compare penalties across different cases when different facts or circumstances apply in one but not the other.  For example in Re SSTU there was the proffered undertaking, the Registrar’s position that the acceptance of the undertaking was an appropriate disposition and a single stoppage of work of a relatively limited duration.  None of those factors apply in the present case.

230      In addition as I set out in Re SSTU at [140], in 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 when no undertaking was proffered, the maximum penalty of $2000 was imposed for a single contravention of an order of the Commission.

231    In my opinion having regard to all relevant facts, circumstances and factors including the seriousness of the contraventions, mitigation and the absence of any undertaking it is appropriate to impose a penalty of $800.  This is in the context of the yardstick of the maximum financial penalty which can be imposed, which as stated by Beech CC in Re SSTU and quoted above is “hardly a significant” amount.

Minute of Proposed Order

232    In Re SSTU the Full Bench decided under s84A(7) that the payment should be made by the SSTU to the State of Western Australia.  Neither party submitted that any financial penalty be paid other than by the respondent to the state.  In my opinion this is the appropriate order to make.  To ensure that the order is enforceable it is necessary to provide some time limit to the payment of the penalty.  In my opinion three days is appropriate.

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

1. The contraventions are proved.

2. The respondent is within three days to pay a penalty of $800 to the State of Western Australia.

234    A minute of proposed orders should issue in these terms.  If either party submits that some other time for payment should be ordered then submissions can be made in writing on the issue or a request made for a speaking to the minute within three days of the issuing of the minute.

SMITH SC: 

235    I have had the benefit of reading a draft of the reasons to be published by the Acting President.  I agree with those reasons and have nothing to add.  For the reasons his Honour gives I agree that the orders he proposes in paragraph [233] should be made.

WOOD C:

236    I have had the benefit of reading the Reasons for Decision of His Honour the Acting President.  I agree with those reasons and have nothing to add.