WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2010 WAIRC 00849

DELIVERED : FRIday, 27 August 2010

FILE NO. : FBA 7 OF 2009

Appellant

AND

The Director General, Department of Education and Training

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner J L Harrison

Citation : [2009] WAIRC 01232; (2009) 89 WAIG 2478

File No : C 35 of 2009

CatchWords : Industrial law (WA) - Appeal against finding of a single Commissioner - Public interest - Compulsory conference - Power of Commission to make Order - Need for order to issue urgently - Impending industrial action - Order to prevent industrial action - Order not binding on union members - Denial of natural justice and procedural fairness - Reliance on witness statements - Adjournments - Length of adjournment during proceedings - Opportunity to adequately present case

Legislation : Industrial Relations Act 1979 (WA) – s6(c), s7, s26(1)(a), s26(1)(b), s42(1), s44, s44(1), (3), (5), (6), (6)(ba), (ba)(i), (ba)(ii), (bb), (bb)(i), (6a), (7)(b), s49(2a), s49(4)(a)

Result : Appeal refused on ground 1

  Appeal allowed on grounds 2 and 4

Representation:

Counsel:

Appellant : Mr RL Hooker (of counsel)

Respondent : Mr RL Bathurst (of counsel)

Case(s) referred to in reasons:

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88

Baba v Parole Board of New South Wales (1986) 5 NSWLR 338

Hodgens v Gunn; Ex Parte Hodgens [1990] 1 Qd R 1

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Knauder v Moore [2002] FCAFC 404; (2002) 127 FCR 327

L v Human Rights and Equal Opportunities Commission [2006] FCAFC 114; (2006) 233 ALR 432

Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234

McGibbon v Linkenbagh (1996) 41 ALD 219

Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38

R v Secretary of State of Transport; Ex Parte Pegasus Holdings (London) Ltd [1988] 1 WLR 990

Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 (2000) 204 CLR 82

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

Scott v Handley [1999] FCA 404

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Sullivan v Department of Transport (1978) 20 ALR 323

SZBEL v Minister for Immigration and Multicultural and Indigenours Affairs [2006] HCA 63; (2006) 228 CLR 152

Touma v Saparas [2000] NSWCA 11

Reasons for Decision

LE MIERE AP, BEECH CC, KENNER C:

Introduction

1         The appellant union appeals from an order of the Commission that the union not undertake industrial action.  The order was made at about 6.45 pm on 25 November 2009.  The union had arranged strike action in the form of a stop work meeting to commence at 10.00 am the following day.  The union presses three grounds of appeal.  First, the union says the order was beyond power because of the absence of relevant jurisdictional facts authorising the Commission to make the order.  Secondly, the union says that it was denied procedural fairness because it was not given an opportunity to adequately present its case in opposition to the order.  Thirdly, the union says that the order was beyond power because it purports to bind the union members as well as the union itself.

A conference is convened

2         In August 2009 the union made claims for a new industrial agreement to replace the Education Assistants' (Government) General Agreement 2007.  Following discussions between the union and the respondent Director General, the Director General initiated bargaining for a new industrial agreement by giving notice under s 42(1) of the Industrial Relations Act 1979 (WA) (the Act).  On 26 October education assistants employed by the Education Department commenced industrial action consisting of certain work bans or restrictions.  On 5 November the Director General applied to the Commission for an order under s 44(6) of the Act that the union and its members cease industrial action.

3         On 6 November the Commission convened a conference with respect to the Director General's application.  At the conference the union informed the Commission that it had no intention to escalate the bans in place at that time.

4         The Commission set down a further conference to be held on 9 November to hear further from the parties with respect to the impact of the bans at workplaces.  Prior to 9 November the union informed the Commission that the bans which had been in place since 26 October had been lifted.  The Director General did not then pursue the issue of orders and the conference did not proceed on 9 November.

5         On 10 November the Director General sought an urgent conference on the basis that the Education Department had been notified that cleaners, gardeners and education assistants who are members of the union would be attending stop work meetings on 11 November.  A conference was convened in the Commission late on 10 November.  The union confirmed that the stop work meetings would be taking place throughout Western Australia between 10.30 am and 12 noon on 11 November.  At the conference the parties agreed to meet in the Commission the following day in an endeavour to reach agreement on a process for advancing negotiations for a replacement industrial agreement for education assistants.  The union undertook to cease all industrial action for 14 days commencing on 12 November.  The Commission informed the parties that it would hear from the parties as to the progress of the negotiations on 18 and 25 November.

Respondent seeks orders to prevent strike

6         Report back conferences were held in the Commission on 18 and 25 November.  At the conference on 25 November the Director General requested that the Commission issue orders on the basis that the union's members were to attend a half day stoppage the following day.  The Director General sought the following orders:

(a) The union is to notify all its members employed in the Department of Education as education assistants by 5.00 pm on 25 November 2009 that they are not to engage in any further industrial action of any sort whether relating to negotiations for a new industrial agreement to replace the Education Assistants' (Government) General Agreement 2007 or otherwise; and

(b) The union, whether by its officers, employees, agents or otherwise, is not to direct or encourage, in any way, education assistants working in the Department of Education to engage in any further industrial action relating to negotiations for a new industrial agreement to replace the Education Assistants' (Government) General Agreement 2007.

7         The conference commenced at about 3.00 pm on 25 November.  At the start of the conference Mr Bathurst, counsel for the Director General, said that he wanted to discuss the strike action that was to take place the following day.  The Commissioner said she wanted feedback on bargaining first.  Representatives of the union and Director General then reported on the bargaining.  A representative of the Director General said that there was more room for discussion.  Mr Whitehead, counsel for the union, said that the union was still prepared to negotiate and it was still worth pursuing an agreement.  The Commissioner asked if the union would give another undertaking not to engage in industrial action.  Mr Whitehead said that a half day stoppage was planned for the following morning.  Counsel for the Director General said that the Director General had an application seeking orders to stop industrial action and produced an outline of submissions together with five witness statements in support of the Director General's application.  Mr Whitehead said that the union had not seen the Director General's outline of submissions or supporting witness statements before they were produced at the conference and had not had an opportunity to examine them.  There was then discussion between the Commissioner and representatives of the Director General and the union concerning the proposed industrial action and its impact upon schools, particularly special schools, and students.

Conference is adjourned

8         Mr Whitehead sought an adjournment to review the evidence presented to the Commission.  The Commissioner adjourned the conference for 10 minutes.  Mr Whitehead stated that the union representatives would not have sufficient time to review the evidence if the Commissioner was only going to adjourn for 10 minutes.  The adjournment lasted nearly 15 minutes during which time the union representatives attempted to examine the outline of submissions and the supporting statements.

Conference is resumed and orders made

9         After the conference resumed the Commissioner asked Mr Whitehead to respond.  Mr Whitehead stated that the union representatives had not had sufficient time to review the outline of submissions and attached witness statements and the union was being denied natural justice.  Mr Whitehead said that further time would be required in order that the union be able to respond adequately.  Mr Whitehead then made statements to the effect that the Director General's evidence was full of holes and there were things in the statements presented that supported the union's claims.  Mr Whitehead gave some examples of statements that supported the union position and explained that the documents were full of similar statements that would require further time to examine.

10      The Commissioner read the outline of submissions and asked Mr Whitehead for the union's response to each point contained in the outline.  Mr Whitehead responded.  The Commissioner stated that she would not rely upon the witness statements attached to the outline of submissions.  Mr Whitehead stated that that put the union at a disadvantage because the union representatives had spent the time during the adjournment attempting to examine the statements and the outline of submissions and had had no time to respond.  There was further discussion between the Commissioner, the representatives of the Director General and the representatives of the union concerning the planned industrial action and its impact upon schools and students.  The conference adjourned at about 5.15 pm for the Commissioner to consider the application.

11      At about 6.45 pm the Commissioner reconvened the conference and  produced a minute of proposed orders.  There was then a speaking to the minutes, that is, the parties spoke to matters contained in the minute of proposed orders.  The Commissioner stated that she would vary the terms of the minute of proposed orders before it was delivered as the decision of the Commission.  The Commissioner adjourned the conference.  The Commissioner then issued the order of 25 November 2009.  The order consists of a preamble and an operative part.  The preamble consists of numerous recitals.  The operative part of the order is:

 NOW THEREFORE having heard Mr R L Bathurst of Counsel on behalf of the applicant and Mr N Whitehead of Counsel on behalf of the respondent, the Commission having regard for the interests of the parties directly involved, the public interest and to prevent the further deterioration of industrial relations, and pursuant to the powers vested in it by the Act, and in particular s44(6)(ba)(ii) and s 44(6)(bb)(i), hereby orders:

1. THAT the respondent by its officers, agents and employees and the respondent's members are not to undertake any further industrial action in any form in relation to negotiations for a new industrial agreement to replace the Education Assistants' (Government) General Agreement 2007 including stop work meetings and bans and limitations on the normal duties undertaken by education assistants under their contracts of employment with the applicant.

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

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

4. THAT both parties have liberty to apply to vary this order.

Grounds of appeal

12      There are four grounds of appeal, one of which is not pressed.  The first ground is that in making the order the Commissioner erred in law and acted beyond power in that the Commissioner made the order relying on the jurisdictional fact that it was appropriate in all of the circumstances to do so when that is not a jurisdictional fact that authorises the Commission to make the order.  The second ground is that in making the order the Commission denied the union procedural fairness in that the union was not given an opportunity to adequately present its case.  The third ground is not pressed.  The fourth ground is that the order purported to bind the union's members when the Commission did not have power to do so.

The evidence

13      Section 49(4)(a) of the Act provides that an appeal shall be heard and determined on the evidence and matters raised in the proceedings before the Commission.  There is no transcript of the proceedings before the Commissioner.  The appellant adduced evidence by affidavits of Jessica Foster and Brett Owen of the evidence and matters raised in the proceedings before the Commissioner.  Ms Foster and Mr Owen were present at the conference on 25 November 2009 and swore as to what occurred at the conference and what materials were presented to the Commissioner at the conference.  The respondent did not object to the evidence of Ms Foster or Mr Owen.  The respondent was right not to object to that evidence.  It is evidence of 'the evidence and matters raised in the proceedings before the Commission'.

14      During the hearing of the appeal it emerged that there was an issue as to whether or not the Commissioner had read the witness statements.  The respondent's case is that the Commissioner did not read the witness statements.  In her affidavit Ms Foster said:

Harrison C then stated that she would not rely on the witness statements attached to the outline of submissions.

In his affidavit Mr Owen said:

Harrison C said that the statements attached to the Outline of Submissions were not going to be taken into account.

15      There was no evidence that the Commissioner had not read the witness statements.  Counsel for the respondent sought, and was granted, leave to file and rely upon further affidavits from Ms Kristen Berger and Mr Keith Dodd, both of whom were present at the conference, concerning what the Commissioner said about having read the witness statements.  We granted the appellant leave to file and serve any affidavits in reply together with any further written submissions.

16      After the hearing of the appeal the respondent filed affidavits of Ms Berger and Mr Dodd each sworn 6 July 2010.  In their affidavits Ms Berger and Mr Dodd each swore that after the conference had reconvened, the Commissioner said that she had not read the witness statements and would not be relying upon them.

17      Subsequently, the appellant filed an affidavit of David Kelly, the Union Secretary, sworn 16 July 2010.  In his affidavit Mr Kelly said, amongst other things, that when Mr Bathurst handed the written submissions and the witness statements to the Commissioner and to Mr Whitehead, Mr Bathurst said words to the effect that the government were seeking orders to stop the union taking industrial action and that the submissions and statements were in support of the application.  Mr Kelly said:

I instructed Mr Whitehead to ask the Commissioner for an adjournment of approximately 1 hour for us to be given an opportunity to consider the statements and submissions and consider our response.  Commissioner Harrison refused that request and instead adjourned the conference for 10 minutes.  She said that the adjournment was for us to consider the material that had just been provided by Mr Bathurst.

The adjournment began about 45 minutes after Mr Bathurst had provided the written submissions and witness statements and lasted approximately 10‑15 minutes.  I spent virtually all of that time reading the witness statements.  Because those statements contained over 120 pages of material I was not able to complete this task in the time the adjournment lasted.

I did however note that there were some statements in the witness statements which appeared to support our contentions that the proposed industrial action would not adversely impact on the well being of students.  I did not have time to test some of the views contained in the statements with the LHMU delegates who were also in attendance at the conference to assist us in presenting our case.

When the conference resumed, Mr Whitehead advised the Commissioner that we had had insufficient time to consider the material.  Commissioner Harrison then advised the parties that she would not be having regard to the statements in making her decision on whether or not to issue orders.  I do not remember her saying that she had not read the statements.

The appellant also filed written submissions dated 16 July 2010 and entitled 'Appellant's Written Submissions in Reply'.

18      The respondent then wrote to the associate to the Chief Commissioner objecting to parts of the affidavit of Mr Kelly and responding to some of the submissions made by the appellant in its written submissions in reply.  The respondent objected to [4] ‑ [10] and [12] ‑ [14] of Mr Kelly's affidavit on the ground that the evidence in those paragraphs was not evidence in reply to the affidavits of Ms Berger and Mr Dodd and they sought to introduce new evidence for which no leave had been given.  The respondent stated that he was content for the Full Bench to determine the matter without the need for additional oral submissions.  The appellant then requested, and was granted, leave to file further written submissions in response to the respondent's objections to the affidavit of Mr Kelly.  The appellant filed submissions dated 26 July 2010 and entitled 'Appellant's final written submissions in reply'.

19      An appeal to the Full Bench 'shall be heard and determined on the evidence and matters raised in the proceedings before the Commission':  s 49(4)(a).  In the exercise of its jurisdiction the Full Bench must 'act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms':  s 26(1)(a).  The evidence of Mr Kelly, apart from [14] of his affidavit, is evidence of 'the evidence and matters raised in the proceedings before the Commission' and should be admitted as evidence in the appeal unless admitting the evidence will cause injustice or unfairness to the respondent.

20      The respondent specifically objects to Mr Kelly's evidence that he instructed Mr Whitehead to ask the Commissioner for an adjournment of approximately one hour and that the Commissioner 'refused that request and instead adjourned the conference for 10 minutes' and that the Commissioner 'said that the adjournment was for us to consider the material that had just been provided by Mr Bathurst'.  The respondent does not submit that admitting the evidence of Mr Kelly would cause any injustice or unfairness to the respondent.  The respondent objects to the evidence on two grounds.  The first ground is that the evidence is not in reply to the evidence of Ms Berger and Mr Dodd.  The appellant submits that the respondent 'takes an unrealistically narrow view of any potential significance of the evidence led by the affidavits of Mr Dodd and Ms Berger'.  Leave was given to the respondent to adduce evidence concerning whether or not the Commissioner read the witness statements.  The evidence of Ms Berger and Mr Dodd was confined to that issue.  The evidence of Mr Kelly, in effect, seeks to reply to the evidence of Ms Berger and Mr Dodd by leading evidence from which it might be inferred that the appellant was prejudiced by the inadequate adjournment even if the Commissioner did not read the witness statements.  The second ground of objection is that Mr Kelly's statement that, in effect, the union requested an adjournment for about an hour contradicts a concession made by Mr Hooker, counsel for the union, at the hearing of the appeal.  Mr Hooker said:

… When one asks the … practical question for the hearing rule, 'what should the decision‑maker have done which he didn't do?'  It's my submission that she should have given hours rather than minutes.  I'm … not suggesting Mr Whitehead did say that (ts 60).

In the appellant's final written submissions in reply the appellant says that the acknowledgement made by counsel was one in respect of the evidence then before the Full Bench.

21      The admission of the evidence of Mr Kelly will not cause any injustice or unfairness to the respondent.  It is relevant evidence and should be admitted.

22      We find that the Union did ask the Commissioner for an adjournment of approximately one hour and that the Commissioner refused that request and instead adjourned the conference for 10 minutes.  We find that the adjournment lasted approximately 10 to 15 minutes and that the union representatives spent that time trying to read the outline of submissions and the witness statements.  We find that after the conference resumed the Commissioner stated that she had not read the witness statements and would not rely upon them.  Mr Whitehead then requested a further adjournment and the Commissioner refused that request.

Ground 1 ‑ conditions for exercise of power under s 44(6)

23      The union submits that the Commissioner made the order on the basis that her power to do so was enlivened by her finding that the issue of the order was appropriate in all of the circumstances.  The union submits that s 44 does not empower the Commission to make orders of the sort made merely because the Commission considers the order to be appropriate in all of the circumstances.  The union submits that s 44(6) confers on the Commission the power to give such directions as it considers appropriate but not to make orders of the sort made by the Commissioner on the basis only that the Commission considers it appropriate.  The union submits that the power of the Commission to make orders of the sort made is circumscribed by the provisions of s 44(6)(ba) and (bb).  Those provisions do not empower the Commission to make orders merely because it considers them appropriate.

24      This ground of appeal misconceives the decision of the Commissioner.  The reasons for the Commissioner's decision are to be found in the order.  As we have said the order takes the form of a preamble or recitals followed by a formal order.  The union's argument is based on the final recital which says:

Whereas after hearing from the parties the Commission is of the view that the issuance of order 1 as proposed is appropriate in all of the circumstances

That recital was not in the minute of proposed order issued by the Commissioner.  The Commissioner added that recital after hearing from the parties at the speaking to the minutes.  The basis on which the Commissioner exercised her power to make the order is to be found in the introductory words of the operative order in which the Commissioner stated:

… the Commission having regard for the interests of the parties directly involved, the public interest and to prevent the further deterioration of industrial relations, and pursuant to the powers vested in it by the Act, and in particular s44(6)(ba)(ii) and s44(6)(bb)(i), hereby orders …

Those words were contained in the minute of proposed orders and in the final order issued.  It is sufficiently clear from those words and the terms of the order taken as a whole that the jurisdictional fact on which the Commissioner made the order was her opinion that the order would prevent the further deterioration of industrial relations between the union and the Director General.

25      Section 44(6)(ba)(i) empowers the Commission, with respect to industrial matters, to give such directions and make such orders as will in the opinion of the Commission prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter.  The Commission was enquiring into and dealing with an industrial matter, that is, the differences between the parties in relation to a new industrial agreement.  The Commissioner commenced the conference on 25 November by enquiring as to the state of the negotiations between the parties.  Both parties informed the Commissioner, in effect, that they were continuing to negotiate.  It was open to the Commissioner to form the opinion that the orders that she made would prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration resolved the matter.  On a fair reading the order discloses that the Commissioner formed that opinion.

26      The order refers to s 44(6)(ba)(ii) and s 44(6)(bb)(i).  The Commissioner prepared the order, and the reasons contained within that order, urgently.  The reference in the order to s 44(6)(bb)(i) is obscure and the reference to s 44(6)(ba)(ii) appears to be a mistaken reference to s 44(6)(ba)(i).  Notwithstanding the apparent error in the drafting of the order it is sufficiently clear that the Commissioner formed the opinion referred to in s 44(6)(ba)(i) and thereby enlivened the exercise of power under s 44(6)(ba)(i).  Ground 1 of the appeal fails.

Ground 2 - procedural fairness

27      Certain decisions must be made in accordance with the rules of natural justice or procedural fairness.  The threshold question is whether the requirements of procedural fairness apply to the decision of the Commission.  It is common ground that they do.  The argument on the appeal concerns the extent and content of the rules.

28      In the fourth edition of 'Judicial Review of Administrative Action' Aronson, Dyer & Groves say at [8.10] that there is one general principle concerning the content of the hearing rule which has been repeatedly endorsed.  It is that the requirements of the rule are flexible and will be determined by what is fair in all the circumstances of a particular case.  In some circumstances the content of the principles of procedural fairness may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred:  Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 615 (Brennan J).

29      The statutory framework within which a decision‑maker exercises statutory power is of critical importance when considering what procedural fairness requires:  SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, (2006) 228 CLR 152, [26] (Gleeson J, Kirby, Hayne, Callinan & Heydon JJ).

30      There are a number of provisions of the Act that are relevant to this issue.  A principal object of the Act is to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality:  s 6(c).  In exercising its jurisdiction the Commission shall not be bound by any rules of evidence but may inform itself on any matter in such a way as it thinks just:  s 26(1)(b).  Section 44(1) empowers a Commissioner to summon any person to attend, at a time and place specified in the summons, at a conference before the Commission.  Any person so summoned shall, except for good cause, attend the conference at the time and place specified and continue his attendance as directed by the Commission:  s 44(3).  A conference under s 44 is held in private unless the Commission determines otherwise:  s 44(5).  The Commission may exercise the power conferred on it by s 44(1) on the motion of the Commission itself whenever industrial action has occurred or, in the opinion of the Commission, is likely to occur:  s 44(7)(b).

31      In Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 990 Nicholson J, with whom Kennedy and Pidgeon JJ agreed, said:

As has been seen, the s 44 conference procedure is one characterised by great informality.  The reasons are formulated in a setting in which in my opinion, there is no obligation to maintain a record and in which the taking of evidence is either inappropriate or unlikely (999).

32      The nature of a conference convened under s 44 and the circumstances under which it may be convened are such that the power to make orders under s 44(6) is likely to be exercised in circumstances where industrial action is occurring or about to occur.  Counsel for the Director‑General, Mr Bathurst submitted that s 44 is a lynchpin of the State industrial relations system and is a way of controlling industrial action.

33      The primary purpose of s 44 is not to stop or prevent industrial action.  The primary purpose is to endeavour to resolve industrial disputes or differences by conciliation.  The powers conferred on the Commission by s 44(6) include the power to make orders as will in the opinion of the Commission prevent the deterioration of industrial relations until conciliation or arbitration has resolved the matter.  That will include, in appropriate cases, an order to stop or prevent industrial action.

34      The Act contemplates that a s 44 conference may be held in circumstances which require the matters before the Commission to be dealt with urgently.  The need for the urgent exercise of a statutory power can reduce the content of the duty to hear:  Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234, 241 ‑ 242 (Wilcox J); Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, 345 (Hope JA), 347 (Mahoney JA), 349 (McHugh JA); R v Secretary of State of Transport; Ex Parte Pegasus Holdings (London) Ltd [1988] 1 WLR 990, 1000 (Schieman J); Hodgens v Gunn; Ex Parte Hodgens [1990] 1 Qd R 1, 4 ‑ 5 (Thomas, Shepherdson & Williams JJ agreeing); Wasfi v Commonwealth (1998) 83 FCR 16, 28 ‑ 30 (Merkel J); Pacific Century Productions Pty Ltd v Watson [2001] FCA 1424; (2001) 113 FCR 466, [41] (Stone J).

35      The content of the principles of procedural fairness may be diminished to avoid frustrating the purpose for which the power is conferred.  But nevertheless the observance of the principles of procedural fairness condition the exercise of the power.  Procedural fairness is not to be limited because a power may need to be exercised urgently.  It must be established that there was a need for urgent action in the circumstances of the particular case.

36      The circumstances of a s 44 conference may give rise to the need for the urgent exercise of the power to make orders under s 44(6)(ba) or (bb).  That may be so where the Commission is asked to make an order to stop or prevent industrial action to prevent the deterioration of industrial relations until conciliation or arbitration has resolved the matter.  Where delay occurs in issuing an order to stop or prevent industrial action the order may be rendered ineffective and delay in determining the application may detract from the object of s 44(6)(ba)(i) of preventing the deterioration of industrial relations.  The Commission must ensure an appropriate balance is struck between procedural fairness and the timely issue of an order to stop or prevent industrial action.

37      Before the opportunity of a party to present its case is limited it must be established that there is a need for urgent action in the circumstances of the particular case and that the urgency necessitates the limitation of the party's opportunity to present its case.  In the present context, whether to grant an adjournment, and if so, its duration, will involve a discretionary judgment by a Commissioner, depending on the particular circumstances of the case.  In reviewing the decision of the Commissioner the Full Bench should give weight to the Commissioner's assessment of urgency and recognise that that assessment itself was made under pressure of time.  However, the Full Bench must consider for itself whether in all the circumstances the union was given such opportunity to present its case that was reasonable in all the circumstances.

38      The Director General submits that the particular facts and circumstances of the case required that the Director General's application for orders be resolved urgently.  The respondent says that on 25 November 2009 the Department learned that a half day strike was planned for the following morning.  The conference commenced at 3.00 pm.  The respondent's position was that if the proposed strike went ahead it would have serious consequences.  Given that the strike was to occur on the morning of 26 November the question of whether orders were to issue had to be decided on 25 November.

39      The respondent points out that the Commissioner decided not to read the signed statements presented by the respondent.  Each proposition in the respondent's outline of submissions was put by the Commissioner to the union's counsel for his response and the union's counsel had the opportunity to make submissions against the making of the order.  Thus, the respondent submits the union was given an opportunity to present its case that was sufficient in all the circumstances.

40      The essence of the union's complaint is that it was refused an adjournment, or an adequate adjournment, to enable it to consider the materials presented to the Commission in support of the Director General's application for orders and as a result was denied an opportunity to adequately present its case.

Adjournments

41      The refusal of an adjournment may amount to a denial of procedural fairness if it deprives a party of the opportunity to adequately present his or her case:  Sullivan v Department of Transport (1978) 20 ALR 323, 343; Touma v Saparas [2000] NSWCA 11, [27] (Stein JA, Powell JA and Hodgson CJ in Eq agreeing).  Refusal of an adjournment may be a breach of procedural fairness if insufficient time is allowed to read the materials:  McGibbon v Linkenbagh (1996) 41 ALD 219 (Kiefel J); Scott v Handley [1999] FCA 404; 58 ALD 373, [39] ‑ [41]; (Spender Finn and Weinberg JJ); or to prepare for the hearing: Knauder v Moore [2002]  FCAFC 404; (2002) 127 FCR 327.

42      The length of the adjournment can depend on the time required to deal with the issue for which the adjournment was granted:  Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38, [30] ‑ [31] (Moore, Bennett and Buchanan JJ); L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432, [21] (Black CJ, Moore and Finkelstein JJ).

Union was denied procedural fairness

43      The Commissioner adjourned the conference for 10 minutes.  On resumption the Commissioner said that she would not rely upon the witness statements attached to the outline of submissions and that she had not read them.  Counsel for the union sought a further adjournment to enable the union to examine the outline of submissions and prepare a response to the Director General's arguments.  The Commissioner refused that adjournment.  We find that in doing so the union was deprived of an opportunity to adequately present its case.  That was a breach of procedural fairness.

44      There are a number of features of this case which lead to that finding.  First, the order made by the Commission had serious consequences for the union.  The union and the respondent were in dispute concerning a new industrial agreement for education assistants.  Counsel for the union alleged to the Commissioner that 'the union was bargaining in good faith but the government was not'.  An important part of the union's bargaining power is the willingness and ability of its members to strike and thereby impede the Education Department's delivery of services to cause the Department to make a better offer.  An order stopping or preventing strike action weakens the bargaining position of the union.

45      Secondly, the case presented by the Director General was such that the union reasonably required further time for its counsel to consider the outline of submissions, take instructions and prepare its case in response.  The respondent says that the union had known since 5 November that the Director General sought an order that the union cease industrial action and had had a fair opportunity to prepare its case in opposition.  However, on 25 November the Director General presented a detailed written case in support of the application.  The case included the allegation that the industrial action taken on 11 November had seriously affected schools and students.  That allegation was supported by specific allegations including:

• Education assistants not being present [at schools caring for students with severe disabilities] can place a child's health at serious risk.

• A change in routine, such as that caused by a strike, will cause many students with special needs, particularly students with autism, to behave violently to other students and staff.

• The violent behaviour caused by strike action puts other students and staff at risk of injury.

• Not having education assistants at school due to strike action means that some children with disabilities are unable to eat.

• For some deaf and visibly impaired children that rely on education assistants, not having an education assistant, at school due to strike action means they cannot participate at all in classes.

• For some students with disabilities, not having an education assistant at school due to strike action means they cannot go to the toilet and have to sit in their own faeces and urine, which is both humiliating and a serious health risk.

• At special education schools and centres, strike action causes the education programme for students with special needs to stop.

• Strike action can force schools to close.  Assuming parents are available to pick students up at all, the students may behave violently towards their parents.

46      Fairness required that the union be given a reasonable opportunity to consider those allegations and arguments and to prepare a case in response.  The nature of the powers conferred by s 44(6) and the circumstances of the application for orders will inform the procedure to be followed by the Commission in each case.

47      Thirdly, the union received no prior notice of the grounds of the application and the factual assertions made in support of it.  At the conference counsel for the union denied many of the allegations made in the outline of submissions but was effectively deprived of an opportunity to present an adequate case in response.  An opportunity to present an adequate case does not mean an opportunity to present the best possible case.  However, counsel for the union was allowed only 10 minutes to read all of the material presented by the Director General, take instructions and formulate a response.  That was inadequate.

48      Fourthly, the outline of submissions was supported by detailed witness statements.  Each factual assertion in the outline of submissions cited paragraphs from one or more witness statements in support of the assertion.  Counsel for the union said to the Commissioner that 'the documents provided evidence of the impact that the last work stoppage on 11 November had on schools and potential risk created by another stoppage'.

49      In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said:

It follows that what is 'credible, relevant and significant' information must be determined by a decision‑maker before the final decision is reached.  That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information.  And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made.  'Credible, relevant and significant' must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision.  And the decision‑maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made.  References to information that is 'credible, relevant and significant' are not to be understood as depending upon whatever characterisation of the information the decision‑maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.

It follows that the Tribunal's statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review.  Deciding that it could reach its conclusion on other bases did not discharge the Tribunal's obligation to give the appellant procedural fairness [17] ‑ [18].

50      The outline of submissions and witness statements were inextricably interwoven.  That was made clear to the Commissioner by counsel for the Director General.  The information in the witness statements, or the conclusions drawn from that information, were summarised in the outline of submissions.  The information in the witness statements and in those paragraphs of the outline of submissions which summarised or drew conclusions from the witness statements, was information that is credible, relevant and significant.  The allegations in the witness statements, and outline of submissions, concerning the effect of strike action on schools and students with disabilities could not be dismissed as a matter of no relevance or of little or no significance to the decision to be made.  Further, the allegations contained in the statements could not be dismissed from consideration as material to which the Commissioner could not give credence.

51      The outline of submissions and witness statements, together with annexures, occupy 132 pages of the appeal book.  The Commissioner allowed an adjournment of about 10 minutes.  That is an inadequate time for counsel to read the documents, let alone take instructions on them and formulate a response.  The witness statements formed a part of the case presented by the Director General.  The outline of submissions expressly referred to the witness statements.  The unfairness to the union of having no opportunity to consider and respond to the factual assertions and arguments in the outline of submissions that summarised or were derived from the witness statements was not overcome by the Commissioner not reading the witness statements and stating that she would not rely upon them.  In any event, the adjournment granted to the union was insufficient to consider the outline of submissions, take instructions on the allegations and arguments contained within it and prepare a case in response.

52      In the particular circumstances procedural fairness required that the Commissioner should have given the union an opportunity to deal with the information and arguments contained in the outline of submissions and witness statements.  The union was not given an adequate opportunity to consider and give instructions in relation to the allegations contained in the witness statements and the arguments put in the outline of submissions that were derived from the witness statements and to prepare its case in answer to those arguments.

53      Fifthly, the evidence does not establish that the need for the Commission to issue the order urgently precluded an adjournment to enable the union to consider the outline of submissions and witness statements and present a case in response.

54      Counsel for the Director General submitted that an adjournment, or an adjournment for more than the 10 minutes granted, would frustrate the purpose for which the power of making orders under s 44(6)(ba) was conferred.  Counsel for the Director General submitted that the order would have to be made in sufficient time for the union to inform its members that evening that the strike was not to go ahead.  However, there is no evidence that the union could inform its members of the order made by the Commission or notify its members that evening that they were not to engage in industrial action the following day.  The Director General sought an order that the union notify its members employed as education assistants by 5.00 pm that day not to engage in any further industrial action.  The 5.00 pm deadline had passed when the Commissioner adjourned at 5.15 pm to consider the application.  In any event, there is no evidence that the union could have notified its members that evening or night.  During the conference counsel for the union, Mr Whitehead, stated that the earliest opportunity that the union could advise its members of the Commission's order would be 10.00 am the following morning because members were going straight from home to the stop work meeting.  The respondent accepts that Mr Whitehead made that statement but does not accept its truth.  There is no evidence that the union had the means to inform its members of the Commission's order before they attended the stop work meeting at 10.00 am the following day.  In the particular circumstances of this case it made no difference whether the order was made at 6.45 pm, later that evening or even early the following morning.

55      The Commissioner could, and should, have adjourned the conference for longer than she did to enable counsel for the union to consider the arguments put against the union, take instructions and prepare its case in opposition.  The union was denied procedural fairness by being deprived of the opportunity to adequately present its case.  The union was not given an adequate opportunity to present to the Commission in an organised way facts and arguments contrary to the facts and arguments in the Director General's outline of submissions.

Effect of breach of procedural fairness

56      Counsel for the Director General submitted that there is no evidence that an adjournment for an hour or so would have made any difference.  Counsel submitted that there is no evidence of what the union might have said that would have made any difference.

57      Once a breach of procedural fairness is proved, the victim of the breach is ordinarily entitled to relief:  Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82, [131] (Kirby J).  There will be rare cases where a court can properly say, without judging the merits, that observance of procedural fairness could not possibly have made a difference.  One example is that where a decision‑maker denies a party the opportunity to make submissions on a question of law that must be answered unfavourably to that party:  Stead v State Government Insurance Commission [1986] HCA 54l; (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane & Dawson JJ).  However, the court will not determine whether observance of procedural fairness would have made a difference if that requires the court to assess the merits of the decision.

58      In this case it cannot be said that the decision would not have been affected if the union had been granted an adjournment for the purpose of considering the Director General's case, and the materials in support of it, and formulating a case in response.  The reasons for the Commissioner's decision are found in the preamble, or recitals, to the order.  Those recitals include the following findings.  First, some of the bans previously put in place by the union's members had had a detrimental impact on the health and safety of some students especially profoundly disabled students and the teaching programmes run by some schools.  Secondly, the strike action would create difficulties in ensuring that the Department's responsibilities towards students, in particular students with profound disabilities, would not be compromised.  Thirdly, the interests of those persons directly involved in the dispute, particularly profoundly disabled students, would be compromised if education assistants recommence industrial action.  Before the Commissioner, counsel for the union, Mr Whitehead, challenged the fact or extent of those impacts and difficulties alleged by the Director General.  Mr Whitehead stated that the Director General's evidence 'was full of holes and there are things in those statements that support our claims'.  Mr Whitehead said in answer to one question from the Commissioner that he was 'not sure'.  In answer to a question whether the applicant's education programmes were at risk Mr Whitehead replied 'some, may be'.  In answer to other matters put to him by the Commissioner Mr Whitehead in effect denied the proposition advanced by the Director General but did not advance any detailed argument in support of the union's position.  The refusal of an adjournment denied the union the opportunity to give Mr Whitehead instructions in relation to those matters and to present an adequate case to the Commission, that is, to present to the Commission in an organised way facts and arguments in opposition to what was stated in the Director General's outline of submissions.  It cannot be concluded that the result would have been the same if the union had been given an adjournment to consider the arguments and material presented against it and to prepare a case in response.

59      Ground 2 is made out.

60      Counsel for the Director General, Mr Bathurst, urged the Full Bench to give careful consideration to the practical consequences of a finding that there was a denial of procedural fairness.  Mr Bathurst said:

The effect of the appellant's argument in this case really is, 'if we give late enough notice of a strike, we show up unprepared and we say, we need more time, its all unfair, there's no way that strike can be stopped' (ts 51).

61      Our conclusion that ground 2 is made out does not mean that in all urgent s 44 conferences relating to impending industrial action the Commissioner will be obliged to grant a request for a lengthy adjournment, or any adjournment at all, on the basis that otherwise there will be a denial of natural justice.

62      In the context of an urgent s 44 conference, what will be required to give a party the opportunity to adequately present his or her case is, in the first instance, a matter for the Commissioner's judgment in each case so that whether an adjournment should be granted will depend upon the circumstances.  The exercise of the discretion by a Commissioner as to the period of any adjournment granted will be conditioned by the objects of the Act, in particular s 6(c) requiring the prevention and settlement of industrial disputes with the maximum of expedition and s 44(6)(ba)(i) in relation to the prevention of a deterioration in industrial relations.

63      The length of an adjournment, if granted, will depend upon the issue to be considered and all the circumstances.  In some cases only a very short period may be appropriate, measured in minutes, to enable a party a fair opportunity to put its case.  The adjournment of 10 or 15 minutes given in this case may be appropriate in some circumstances where the issue to which a response is to be given can be adequately dealt with in that time.

64      In this case the request for an adjournment was prompted by the Director General attending the conference with an outline of submissions and five witness statements to which the Union needed to be given a fair opportunity to respond.  From the evidence of Mr Kelly that an adjournment of 'approximately 1 hour' was requested, and from the submission of Mr Hooker (ts 27) that the issue was 'something in the realm of hours rather than minutes' the Union itself believed that an adjournment of approximately one hour would have given it a fair opportunity to reply to the material presented by the Director General.  That is not to say that the fair length of time of an adjournment is to be the time that is requested.  The point is that the time requested in this case would not have caused the kind of delay mentioned in [36] of these reasons, that is the delay which would detract from the object of s 44(6)(ba)(i) of preventing the deterioration of industrial relations, or, in the context of the discussion at ts 51, it would not have frustrated the purpose of the conference.

Ground 4 - persons bound by the order

65      The respondent concedes that the Commissioner did not have the power to make an order that bound the appellant's members.  Section 44(6a) of the Act provides that an order made under s 44(6)(ba) or (bb) binds only the parties to the relevant conference under s 44.  The parties to the conference were the Director General and the union.

66      The order is beyond power to the extent that it purports to bind the union's members.  To that extent, ground 4 is made out.  If ground 4 was the only ground of appeal made out then the appropriate order on appeal would be to vary the terms of the order so that the order required things to be done or not done by the union but did not compel the union's members to do or refrain from doing anything.  As we have found that ground 2 of the appeal succeeds it is not necessary to consider the variation that should be made to the order if ground 4 alone succeeded.

Public interest

67      The decision of the Commission was a finding as defined in s 7 of the Act.  The decision was made in the course of proceedings that did not finally decide, determine or dispose of the matter to which the proceedings related.  Accordingly, an appeal does not lie from the decision of the Commission unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie:  s 49(2a).

68      In our opinion the matter, that is, the subject matter of the appeal, is of such importance that, in the public interest, an appeal should lie.  The appeal raises questions concerning the content of the rules of procedural fairness in a conference convened under s 44 of the Act.  It is in the public interest that an appeal should lie when the appeal raises substantial questions concerning the content of the rules of procedural fairness to be observed by the Commission before making orders under s 44(6)(ba)(i) of the Act requiring a union to cease industrial action.  We find that the appeal not only raises substantial questions but should succeed if the Full Bench determines that an appeal should lie.

69      The importance of the matter is added to by the fact that enforcement proceedings against the union are pending for breach of the order from which the union seeks to appeal.

Conclusion

70      We find that the matter raised by ground 2 of the appeal is of such importance that, in the public interest, the appeal should lie.  We find that grounds 2 and 4 of the appeal are made out.  The decision of the Commission appealed from should be quashed.