2023 WAIRC 00299
APPLICATION PURSUANT TO SECTION 84A OF THE INDUSTRIAL RELATIONS ACT 1979
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FULL BENCH

CITATION : 2023 WAIRC 00299

CORAM
: CHIEF COMMISSIONER S J KENNER
COMMISSIONER T EMMANUEL
COMMISSIONER T KUCERA

HEARD
:
TUESDAY, 11 APRIL 2023, WEDNESDAY,12 APRIL 2023, WRITTEN SUBMISSIONS 14 APRIL 2023

DELIVERED : FRIDAY, 26 MAY 2023

FILE NO. : FBM 1 OF 2022

BETWEEN
:
THE REGISTRAR, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Applicant

AND

JANET REAH
Respondent

FILE NO. : FBM 2 OF 2022

BETWEEN
:
THE REGISTRAR, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Applicant

AND

AUSTRALIAN NURSING FEDERATION, INDUSTRIAL UNION OF WORKERS PERTH
Respondent

Catchwords : Industrial Law (WA) - Applications pursuant to section 84A - Enforcement of orders of the Commission - Whether industrial action taken was in breach of Commission orders - Obligations of union and union officials under the Act - Characterisation of contraventions - Agreed penalty - Relevant principles applied - Declarations and orders issued
Legislation : Health Services Act 2016 (WA)
Industrial Relations Act 1979 (WA) s 7; s 81CA(1); s 82(2) & (3); s 83; s 83E; s 83EA; s84A; s 84A(4)(a); s 84A(5)(a)(ii); s 84A(8)
Industrial Relations Legislation Amendment Act 2021 (WA)
Result : Declarations and orders issued
REPRESENTATION:
Counsel:
APPLICANT : MS M SARACENI OF COUNSEL AND WITH HER MR S PACK OF COUNSEL
RESPONDENT : MR T HAMMOND SC OF COUNSEL AND WITH HIM MS B BURKE OF COUNSEL
Solicitors:
APPLICANT : FRANCIS BURT CHAMBERS
RESPONDENT : CENTRAL LAW CHAMBERS


Case(s) referred to in reasons:
ACCC V COLES SUPERMARKETS AUSTRALIA PTY LTD [2015] FCA 330
ACCC V TPG INTERNET PTY LTD (2013) 250 CLR 640
Attorney General v Times Newspapers Ltd [1974] AC 273
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION AND OTHERS V MUDGINBERRI STATION PTY LTD (1986) 161 CLR 98
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER V CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION [2017] FCAFC 113
Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER V PATTINSON AND ANOTHER [2022] HCA 13; (2022) 399 ALR 599
Australian Leisure and Hospitality Group v Director of Liquor Licensing [2012] WASC 463
Australian Securities and Investments Commission v Chemeq [2006] FCA 936
Barbaro v The Queen (2014) 253 CLR 58
CALLAN V SMITH [2021] WAIRC 00216; (2021) 101 WAIG 1155
Construction, Forestry, Mining and Energy Union and Another v Director, Fair Work Building Industry Inspectorate and Another [2015] HCA 46; (2015) 258 CLR 482
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
DEPARTMENT OF HEALTH V AUSTRALIAN NURSING FEDERATION, INDUSTRIAL UNION OF WORKERS PERTH [2022] WAIRC 00792; (2022) 102 WAIG 157.
Foster v Australian Competition and Consumer Commission [2014] FCA 240
Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Hanssen Pty Ltd v Construction, Forestry, Mining and Energy Union (Western Australian Branch) [2004] WAIRC 10828; (2004) 84 WAIG 694
Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training: [2010] WAIRC 00089; (2010) 90 WAIG 127
Miller v Minister of Pensions [1947] 2 All ER 372
Minister for Health v The Australian Nursing Federation, Industrial Union of Workers Perth [2013] WAIRC 00089; (2013) 93 WAIG 274
Minister for Health v The Australian Nursing Federation, Industrial Union of Workers Perth [2013] WAIRC 00100; (2013) 93 WAIG 276
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Ponzio v Caelli Constructions Pty Ltd [2007] FCAFC 65
Royer v The State of Western Australia [2009] WASCA 139
Secretary of State for Justice v Prison Officers Association [2019] EWHC 3553 (QB)
Secretary of the Ministry of Health v NSW Nurses and Midwives Association [2022] NSWSC 1178
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405
The Registrar of the Western Australian Industrial Relations Commission v The State School Teachers Union of W.A. (Incorporated) [2008] WAIRC 00270; (2008) 88 WAIG 333
The Registrar v CFMEU (1989) 69 WAIG 2317
The Registrar v LHMWU [2008] WAIRC 01393; (2008) 88 WAIG 1937
Volkswagen Aktiengesellschaft v ACCC [2021] FCAFC 49
Yardley v Betts (1979) 22 SASR 108


Reasons for Decision
KENNER CC:
Background facts This summary of the background facts is adapted from the Statement of Agreed Facts filed by the parties in these proceedings on 24 March 2023.

Negotiations for industrial agreement
1 In mid-July 2022 the Australian Nursing Federation, Industrial Union of Workers Perth started negotiations with the West Australian Department of Health for a replacement industrial agreement to apply to members of the ANF employed in public hospitals throughout the State. As part of its industrial campaign, the ANF conducted a general meeting of its members in midOctober 2022 to discuss the negotiations for a replacement industrial agreement. At that meeting, the members of the ANF present adopted a motion directing the relevant ANF officials to continue their negotiations with the employer and, significantly for the purposes of the present applications, authorised the union to engage in an escalating campaign of industrial action. That campaign of industrial action included the prospect of strike action to take place sometime between 24 and 30 November 2022.
2 Subsequently, in early November 2022 the Department of Health commenced proceeding in this Commission under s 44 of the Industrial Relations Act 1979 (WA) for a compulsory conference. The purpose of the application was to seek the assistance of the Commission in negotiating a replacement industrial agreement. A number of compulsory conferences between the parties took place before the Senior Commissioner over the period of early to midNovember 2022. At a compulsory conference on 15 November 2022, the Department of Health made an offer to the ANF which included a wage increase of three percent. This offer was a conditional offer, and the condition was that the ANF cease its campaign of proposed rolling stoppages. Preparations by the ANF were well underway by that time to commence the rolling stoppages, which were to commence at public hospitals in the metropolitan area over a two-week period starting on 16 November 2022.
3 As a result of events at this compulsory conference, the ANF agreed ‘in principle’ to the Department’s offer, and that the proposed rolling stoppages would not take place. Members would vote on whether to accept the offer or not. At a meeting on 17 November 2022 of ANF members at Fiona Stanley Hospital, the ANF secretary, Ms Reah, addressed the meeting, and subsequently, the media. She said words to the effect that she regarded the offer as ‘divisive and inadequate’, and if the members voted against it, then the ANF campaign would resume, but not by way of rolling stoppages, but rather, a State-wide strike.
4 Later, on the same day, Ms Reah communicated with ANF members by email. Her email contained statements to the effect that the employer's offer was ‘not good enough’, ‘divisive’ and ‘unfair’; if the ANF members thought that the employer offer was not good enough, they should vote ‘no’ in an upcoming poll in relation to the offer; and, if the majority voted ‘no’, the ‘next step will be a one-day strike in all WA Public Health workplaces across the State within a week of the vote closing’.
5 The next day, on 18 November 2022, an online poll was opened by the ANF to enable members to vote in relation to the Department’s offer. It was to remain open until 22 November 2022.
Order of 18 November 2022
6 A further compulsory conference was convened by the Senior Commissioner on 18 November 2022 between representatives of the ANF and the Department of Health. The compulsory conference was convened, in particular, against the background of the meeting at Fiona Stanley Hospital where Ms Reah addressed the members present. As a result of the compulsory conference, the Senior Commissioner made orders that the conduct of the ballot of ANF members to vote on the employer’s offer be deferred and that there not be any public statements or commentary, by the ANF about voting for or against the offer, or a claim for a better offer: Department of Health v Australian Nursing Federation, Industrial Union of Workers Perth [2022] WAIRC 00792.
7 The reasons for the Senior Commissioner’s order were set out in lengthy recitals. They referred to the background to the negotiations between the employer and the ANF and what appeared, contrary to the agreement in principle reached on 15 November 2022, to be a deterioration in industrial relations between the parties, including proposed industrial action. The Senior Commissioner’s concerns, as expressed in the recitals to the orders, can be summarised as follows:
(A) THERE WAS INTERNAL DIVISION WITHIN THE LEADERSHIP OF THE ANF IN RELATION TO THE OFFER.
(b) Public statements being made by officers of the ANF were likely to mislead members.
(c) If the ballot to be conducted of members concerning the offer was to proceed as planned, then this would not enable the members of the ANF to take part in a fully informed and considered way; and a deterioration in industrial relations as a result of these events was likely.
8 For the purposes of these reasons, and for ease of exposition, I will adopt the descriptor used by the Registrar in her particulars of claim in relation to each of the Senior Commissioner’s orders, which will appear in brackets after each order. The orders made were as follows:
ORDERS:
1. THAT the ANF, by its officers, employees and members, must defer the conduct of any ballot, poll or survey of members to gauge the level of support for acceptance of the Offer until 9:00 a.m. on 28 November 2022;

(Defer Ballot Order)
2. THAT from the time of issue of this Order and the conclusion of any ballot conducted in compliance with this Order, the ANF, by its officers and employees, are not to make any public statements, commentary or media statements, whether in writing or verbally, which:
a. portray the ANF, its officers or employees as maintaining a claim for a replacement agreement with terms that are better than the Offer;
b. direct or encourage in any way its members to vote for or against acceptance of the Offer.
(No Further Claim Order)
3. That the parties have liberty to apply at short notice to vary, extend or amend these orders.
RECOMMENDS:
4. THAT the ANF disable its Facebook page comments until the conclusion of any ballot conducted in compliance with the above Orders;
5. THAT the parties not engage in any further bargaining until 11:59 pm on 8 January 2023.
9 After the orders were made, on 21 November 2022 the ANF lodged an appeal to the Full Bench against the orders and additionally, an application to stay them was also made. The stay application was listed for hearing on the afternoon of 25 November 2022, but shortly before the hearing was due to commence, the ANF sought and was granted leave to discontinue the application: 2022 WAIRC 00806. On 6 December 2022, the appeal to the Full Bench was discontinued: 2022 WAIRC 00837.
Order of 23 November 2022
10 Between 18 November 2022, and 23 November 2022, and contrary to the Defer Ballot Order, the ballot remained open up until its closure at 3pm on 22 November 2022. Furthermore, over the same period, and contrary to the No Further Claim Order, Ms Reah made continuous public statements in the media and through the ANF social media to the effect that the ANF would ignore the Senior Commissioner’s order and would continue to press for a better offer. In particular, at a meeting of the ANF Council on 18 November 2022, the Council resolved unanimously to ‘support the decision of the Industrial team to ignore the orders issued (C40/2022) on the 18/11/2022’.
11 In her media engagements, Ms Reah also announced that, in the event that the Department’s offer was not upheld in the ballot, the ANF would be conducting a State-wide strike at all public hospitals in Western Australia. In particular, in the mid-afternoon on 22 November 2022, Ms Reah addressed ANF members and the media at Fiona Stanley Hospital. At the meeting she announced that the majority of those voting in the ballot had rejected the offer and that there would be a one-day State-wide strike on 25 November 2022. Members would take part in a rally at Parliament House and then march to the offices of the Minister for Health.
12 From that time, and up until a further compulsory conference held before the Senior Commissioner on 23 November, the ANF continued to make preparations for a State-wide strike on Friday 25 November, including preparation of a ‘Strike Guide’. The ANF also offered to pay a ‘strike pay subsidy’ of $150 to those members of the union whose pay was docked for taking part in the industrial action. In addition, the ANF published a list to its members of bus services to transport them from their workplace to the Parliament House rally and contained information of the departure locations.
13 At the resumed compulsory conference on 23 November 2022 before the Senior Commissioner, the Department of Health sought interim orders under s 44(6) of the Act to stop the industrial action that was planned for 25 November 2022 from occurring. In the recitals to the interim order that the Senior Commissioner made, she set out the relevant events that had taken place in the days leading up to the compulsory conference. In particular, the Senior Commissioner referred to the ANF announcement on 22 November 2022 of a coordinated State-wide strike to take place on 25 November 2022. She referred to the ANF claim for a five percent wage increase across the board and that the planned industrial action was being taken in support of it. The Senior Commissioner referred to the short period of notice given to the Department of Health in relation to the planned industrial action and the evidence adduced by the Department, as to the impact of such action on the health system in the State and the extreme risk posed by it.
14 The Senior Commissioner was not persuaded that the risks of the planned industrial action could be adequately managed or mitigated. The Senior Commissioner concluded that on the material before her, ‘there is a serious and significant risk that the planned industrial action will compromise public health and safety, and the health and safety of employees as described in the Department of Health’s evidence. The Department of Health has a statutory duty under the Health Services Act 2016 (WA) to manage the State’s health system, to protect the health of West Australians and to provide access to safe, high quality health services. The West Australian community has a clear interest, if not a right, to be able to access safe, high quality health services’: Department of Health v Australian Nursing Federation, Industrial Union of Workers Perth [2022] WAIRC 00798.
15 Being satisfied as to these matters, the Senior Commissioner then made orders under s 44(6) of the Act. As with the 18 November 2022 orders, I will adopt the descriptors used by the Registrar. The orders were in the following terms:
ORDERS:
1. THAT the respondent, by its officers, employees and members, must refrain from taking and cease the specified industrial action.
Specified industrial action means industrial action on and from 25 November 2022 comprising work stoppages, being absent from duty, walking off the job or closing hospital beds.
But excludes:
(a) attendance at a rally organised by the ANF where the attendance is outside rostered work hours.
(b) absences due to genuine illness or injury, or for carer’s leave or on approved leave; and
(c) work stoppages by an employee based on the employee’s reasonable concern about an imminent risk to their health or safety; where the employee did not unreasonably fail to comply with a direction of the Employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
Employer means any employer party to the WA Health System  Australian Nursing Federation  Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses  Industrial Agreement 2020.
(No Strike Order)
2. THAT by no later than 10.00 am on 24 November 2022, the respondent is to inform its members employed by an Employer of the terms of this Order and direct its members to comply with this Order* by:
(a) email transmission to such members;
(b) publication of the Order on the respondent’s website;
(c) publication of the Order on the respondent’s Facebook page; and
(d) placing a copy of this Order on the notice boards usually used by any Employer for the purposes of communicating with the Employees.
*Note that the respondent may be liable for a failure by its members to comply with this Order in accordance with the principles in Ducasse v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1995) 76 WAIG 330 at 333.
(Notice Order)
3. THAT the respondent, by its officers, employees, agents and members are not to direct, encourage, in any way, employees working for any Employer to engage in any specified industrial action, including by paying or offering to pay employees who are absent from duty without authorisation or walk off the job.
(No Encouragement Order)
4. THAT the respondent by its officers, employees, agents and members are not to engage in public commentary or media statements which incite, promote, encourage, or notify of any specified industrial action.
(No Public Comment Order)
5. THAT, subject to compliance with these Orders, the parties attend a reconvened compulsory conference on Friday, 2 December 2022 at 10.30 am.
6. This Order remains in force until 23 January 2023 or until varied or revoked by the Commission.
7. The parties have liberty to apply to vary, revoke or extend this Order.
16 Very shortly after the compulsory conference, outside the Commission premises, Ms Reah addressed the media. Her address included statements to the effect that:
Nurses do not want to strike, but they want to be paid fairly, they want reasonable workloads, that’s all they want, but this government keeps annoying the nurses and escalating things further.
17 In the same address, Ms Reah stated:
We’ve had enough, we are rallying Friday, we are striking, bring it on.
18 Later that same day, Ms Reah took part in an interview on the ABC Radio Perth where, during the course of the interview, she said:
We will stop the strike if the government comes up with the 5 % across the board, plus the $3000 cost of living payment, plus the ratios. Otherwise it’s a strike, nothing less will do now.
19 That same day, in response to the Senior Commissioner’s order of 23 November 2022, and before the ink on the order was dry, Ms Reah, in her capacity as Secretary of the ANF, wrote to the Senior Commissioner. The letter, at Annexure L to the Form 1 General Application in application FBM 2 of 2022 was in the following terms:
Dear Commissioner
Please see my response to your orders.
1. The ANF will be continuing with the strike on 25th November, and we will also be going ahead with the rally at Parliament House.
2. The ANF is still providing transport to our members to the rally using a private bus company.
3. The ANF is still providing a strike pay subsidy to our members.
4. The ANF is still encouraging members to strike tomorrow, and we are encouraging our members to also attend the rally.
5. The ANF members are taking all reasonable steps to ensure the safety of patients during the hours of the strike. However, we note this government has failed in its duty to provide a safe environment for both patients and staff over the last two years.
6. I will continue to speak with our members, the media and the community about the problem facing our members.
7. I will not be doing anything to assist the government or the WA Industrial Commission to shut down the strike that is planned for the 25th November.
8. Please be advised there is currently a vote being conducted of the entire ANF Council, with regard to whether they support the strike action on 25th November, and that vote is scheduled to conclude by 6pm tonight.
Your sincerely
Janet Reah
State Secretary
Australian Nursing Federation IUWP
20 This is a staggering piece of correspondence. The letter is written in a tone of belligerent noncompliance. It is dripping with contempt. I have never seen a letter like it addressed to a Member of this Commission.
21 Later that evening on 23 November 2022, Ms Reah sent an email to ANF members, attaching a copy of a document entitled ‘ANF Strike Guide 2022’ which contained details regarding the strike and the rally and that they could get a strike pay subsidy of $150.
22 The next day, on 24 November 2022 in the morning, an urgent vote of the ANF Council by email was taken in relation to the Senior Commissioner’s orders and the planned strike. The Council supported the strike by members of the ANF. By 10am that day, the ANF had failed to comply with the Senior Commissioner’s Notice Order, by the time required for its compliance.
23 During the day of 24 November 2022, Ms Reah communicated with ANF members and held various press and radio interviews confirming that the industrial action would be proceeding on 25 November; the ANF would defy the orders made by the Commission not to strike; a $150 strike subsidy would be available to all ANF members who have their pay deducted for taking part in the strike; and arrangements were put in place for industrial action to take place in the regions. The communications from Ms Reah and the ANF to the membership also referred to bus transport having been arranged and that ‘the ANF will be assisting the Horizons West with any legal action that is brought against them’.
24 Around midday on 24 November 2022, the Associate to the Senior Commissioner summonsed Ms Reah and others to attend a compulsory conference before the Commission at 9.15 am on 25 November 2022. In response to the summons, late on the evening of 24 November, in an email to members of the ANF, headed ‘strike is still on and ANF buses are still running’ amongst a number of things, Ms Reah said:
The WA Industrial Commission is still trying to get me into a hearing prior to the rally – but I will not be available as I have an important appointment with ANF members at 11 am.
25 On the morning of 25 November 2022, Ms Reah took part in an early morning radio interview where she publicly announced that she would not respond to the summons to attend the conference before the Senior Commissioner and added that:
I’m sorry to say to the West Australian Industrial Commission that my members come first.
26 Regrettably, that statement reflects a profound misunderstanding of the obligations of the ANF, as a registered organisation, and its Secretary, as the principal officer, under the Act.
27 Ms Reah failed to attend the conference before the Senior Commissioner as summonsed.
State-wide strike on 25 November 2022
28 On 25 November 2022, and in breach of the No Strike Order, at least 1,758 members of the ANF employed in the public health system, took industrial action by walking off the job or failing to report for duty. The industrial action included various rallies throughout the State including at Parliament House and Dumas House in Perth, and in Albany, Broome, Bunbury, Geraldton, and Karratha. Bus services provided by Horizons West, arranged and paid for by the ANF, transported members to the rally at Parliament House. Some 1,470 members of the ANF registered for this transport.
29 In preparation for the various rallies, the ANF provided various paraphernalia to members who took part in the industrial action. Speeches were made to those gathered at the rallies by Ms Reah and others on behalf of the ANF.
The aftermath
30 On 27, 28 and 29 November 2022, Ms Reah and the ANF engaged in various communications to members and with the media, referring to their claim for a five percent wage increase for ANF members, and reimbursing members who had their wages deducted for the industrial action, in the sum of $150.
31 On 28 November 2022, the Senior Commissioner issued a direction to the Registrar to commence proceedings before the Full Bench for the enforcement of the Senior Commissioner’s orders of 18 and 23 November 2022 and the summons issued to Ms Reah on 24 November to attend the compulsory conference on 25 November 2022. Additionally, the Senior Commissioner consulted with the ANF, in accordance with s 73(3)(b) of the Act, as to why she should not direct the Registrar to issue to the ANF a summons to appear before the Commission in Court Session on a date to be specified, to show cause why its registration should not be cancelled or suspended, in relation to its conduct in failing to comply with her orders of 18 and 23 November 2022.
32 On 3 December 2022, at an urgent meeting of the Council of the ANF, amongst other things, it was resolved that:
(a) the ANFIUWP Council will pay any fines incurred as a consequence of any alleged breach of orders on behalf of (a) the ANFIUWP and (b) the Secretary (c) any employees and (d) any members; and
(b) that, consistent with previous resolutions of Council, the ANF provides a reimbursement of up to $150 for those who have had their wages docked for participating in the strike of 25 November 2022 and further, that applications for those who were rostered to work a casual shift on that day be referred to the ANF Executive for decision.
33 On 7 December 2022, Ms Reah communicated with members on the ANF Facebook page and, when referring to future negotiations for a replacement industrial agreement, she said:
We will not be defying any future orders of the WAIRC not to strike, although we will certainly appeal any such orders – to give our members that option if possible.
34 On 17 February 2023, the Executive of the ANF passed various resolutions including authorising the payment of a $150 strike pay subsidy to 10 members whose casual shifts were cancelled because of their intention to attend the strike and a further $60, for a member of the ANF for a parking ticket incurred on the day of the strike. Further, as at 27 February 2023, the $150 strike subsidy payment had been paid to some 930 ANF members for the industrial action on 25 November 2022, in the total sum of $139,500.
35 It is common ground that during the course of the events outlined above, widespread media coverage took place where the ANF publicly and repeatedly communicated its defiance of the Senior Commissioner’s orders of 18 and 23 November 2022, and criticisms of the Commission for issuing them.
Applications to the Full Bench
The applications and the relief sought
36 The Registrar commenced these proceedings under s 84A of the Act in response to the failure by Ms Reah to respond to the summons to attend the compulsory conference on 25 November 2022, and the ANF’s failure to comply with the Senior Commissioner’s orders. The particulars of claim in both applications are largely reflected in the SOAF and by their responses, the conduct is largely admitted by both Ms Reah and the ANF. The relief sought in the applications by the Registrar is set out in the particulars of claim and is as follows:
RELIEF SOUGHT
74. As against the ANF, the Applicant seeks that the Full Bench:
(a) declares that it is proved that the ANF contravened, or failed to comply with the:
(i) 18 November 2022 Orders; and
(ii) 23 November 2022 Orders;
(b) imposes such penalty as it thinks fit in respect of the at least 2,736 contraventions according to s 84A(5)(a)(ii) of the IR Act;
(c) directs the ANF pay the penalties imposed within 28 days of the date of the order imposing the penalty;
(d) directs that such penalty imposed be paid to the State of Western Australia; and
(e) directs that the ANF pay the Applicant’s allowable costs of this application under s 84A(5) and (6) of the IR Act.
75. As against Ms Reah, the Applicant seeks that the Full Bench:
(a) declare that it is proved that Ms Reah failed to comply with the s 44(3) summons issued to her;
(b) imposes such penalty as it thinks fit in respect of Contravention A according to s 84A(5)(a)(ii) of the IR Act;
(c) directs that such penalty imposed be paid to the State of Western Australia within 28 days of the date of the order imposing the penalty; and
(d) directs that Ms Reah personally pay the penalty personally and not seek or accept any reimbursement, indemnity or similar from the ANF or any other person.
37 Attached to the applicant’s particulars of claim was ‘Schedule 1 - Summary of contraventions’. The Schedule set out in table form, a summary of contraventions over the various dates on which the contraventions were alleged to have taken place. As a matter of broad approach, and as will be dealt with later in these reasons, the Registrar contended that each act of contravening the Senior Commissioner’s orders by the ANF through its offices, employees and members constituted a separate contravention, with each contravention attracting the maximum penalty under s 84A(5)(a)(ii) of the Act. For example, in relation to the industrial action that took place on 25 November 2022, set out at Table C of the Schedule, it is contended by the Registrar that there were 1,808 contraventions of the Senior Commissioner’s orders, reflecting a contravention by each member of the ANF that took industrial action in breach of the order.
38 Similarly, in relation to the contraventions concerning the provision of bus services to ANF members, the Registrar alleged that each of the 808 ANF members who registered for bus services on 25 November 2022, constituted a separate breach of the 23 November 2022 order. Likewise, in Table E, 939 contraventions are particularised, reflecting ANF members who received a ‘strike pay subsidy’ of $150, between 25 November 2022 and 27 March 2023. During the course of the proceedings, the Registrar updated the Schedule and a copy of the ‘Updated Schedule 1 – Summary of alleged contraventions’ is Annexure A to these reasons.
The course of the proceedings
39 The applications were listed for hearing before the Full Bench on 11 and 12 April 2023, with the Full Bench having earlier directed that the proceedings be heard together. Both the Registrar and Ms Reah and the ANF filed detailed written outlines of submissions in support of their respective contentions.
40 As to factual issues, despite the very extensive SOAF, by which almost all of the allegations advanced by the Registrar were admitted, there remained three outstanding issues which the parties agreed required factual findings by the Full Bench. Those factual issues remaining in contention, as set out at par 58 of the applicant’s outline of submissions, are:
(a) With respect to alleged contraventions C-1 to C-1,808, how many employees engaged in Specified Industrial Action on 25 November 2022, and is the conduct of all of those employees attributable to the ANF?
(b) With respect to contraventions E-14(1 to 808), how many employees who took part in Specified Industrial Action on 25 November 2022 did the ANF agree to provide and/or actually provide with bus services on the day?
(c) With respect to contraventions E-15(1 to 938), to how many Members has the ANF paid a strike pay subsidy in respect of the 25 November 2022 industrial action?
41 Aside from these narrow factual issues remaining contentious, a threshold issue arises on the cases put by both the Registrar and Ms Reah and the ANF, that being one of characterisation. That characterisation issue is whether, as maintained by the Registrar, and as set out in Annexure A to these reasons, each act of noncompliance with the Senior Commissioner’s orders by the ANF, through its officers, employees and members, constituted a separate contravention which can attract a separate penalty. Or, as advanced by Ms Reah and the ANF, there were only single contraventions of the two orders made by the Senior Commissioner. Further, in reliance upon the approach taken in civil penalty cases generally in various Australian jurisdictions, Ms Reah and the ANF contended it was better to look more broadly at the course of conduct of the ANF rather than the approach of the Registrar, which was described as being somewhat mathematical in its design. There were also further challenges originally advanced by Ms Reah and the ANF to the validity of some the Senior Commissioner’s orders, however, for reasons which I will come to shortly, it is no longer necessary for me to consider those questions.
42 On the first day of the hearing, counsel for the Registrar opened her case and the Full Bench dealt with the issue of tender of a number of documents. These included an agreed bundle of material and the Applicant’s Bundle of Non-Agreed Documents, including an electronic file of media reports. Various other documents were tendered, which documents will remain confidential, relating to the issue of registrations for bus transport to the Parliament House rally and the payment of the strike pay subsidy, containing lists of names of members of the ANF and detailed payroll records from the Department of Health, and particularising the names of those employees who sought and obtained unpaid leave to participate in the industrial action on 25 November 2022.
43 In traversing the relevant factual background, as summarised at the outset of these reasons, counsel for the Registrar emphasised that the conduct of the ANF, in defiance of the Senior Commissioner’s orders, reflected a deliberate industrial strategy to not comply with the orders of the Commission and to wilfully defy the Commission’s authority.
44 In particular, counsel referred to the letter from Ms Reah to the Senior Commissioner dated 24 November 2022, set out earlier in these reasons. Counsel referred to this letter as an extraordinary display of open defiance of the authority of the Commission, which defiance was compounded by almost immediate and repeated media statements by Ms Reah on behalf of the ANF, to the same effect. Counsel described, in my view accurately, that the conduct of Ms Reah and the ANF could only be described as contumacious in nature and reflected a campaign of open defiance of the Commission throughout the dispute.
45 Without needing to focus on all of the submissions she made, the Registrar sought penalties for each of the 3,590 cumulative contraventions that she contended were established on the evidence, as set out in Annexure A. Counsel referred to the increase in the maximum penalty in s 84A(5)(a)(ii), from $2,000 to $10,000 resulting from the Industrial Relations Legislation Amendment Act 2021 (WA), which came into effect on 20 June 2022. It was submitted that the increase of 500% to the maximum penalty reflects the Parliament’s intention that contraventions of orders of the Commission should be viewed very seriously.
46 Evidence was then led from Mr Vincent, the Acting Director, NurseWest and the Director Assurance and Knowledge Management, Health Support Services for the Department of Health. Evidence was also led from Dr Codreanu the Director of Disaster Preparedness and Management Directorate for the Department of Health. Finally, evidence was called from Mr Balla, who was, at November 2022, the Managing Director of the bus services company Horizons West. Mr Balla was summonsed to appear and produce documents in relation to the ordering of buses by the ANF to transport members to the Parliament House rally on 25 November 2022. I will return to the evidence given by these witnesses later in these reasons, when considering the factual issues remaining in contention.
47 As to the Applicant’s Bundle of Non-Agreed Documents, the Full Bench admitted the material provisionally over the initial objection of Ms Reah and the ANF, and informed the parties that the material would be considered as a matter of weight. The Applicant’s Bundle of Non-Agreed Documents comprised some 265 pages of material, including ANF communications to members; communications from Mr Olson of the ANF to the media; numerous media articles from print and electronic media outlets, in relation to the State-wide strike; social media photos and videos in relation to the State-wide strike; numerous electronic files comprising radio shows and interviews and audio and visual media reports in relation to the dispute.
48 To the extent that the material includes direct communications by the ANF with its members, including notices of meetings of the ANF Council to discuss resolutions in connection with the dispute, that material is directly relevant to the issues in dispute. Likewise, radio, television and social media articles containing direct statements by Ms Reah on behalf of the ANF as to the actions of the ANF, is similarly relevant. However, the numerous press reports and articles written by journalists on behalf of print and electronic media outlets concerning the industrial dispute between the ANF and the Department of Health are of limited value.
49 As senior counsel for Ms Reah and the ANF pointed out, and counsel for the Registrar acknowledged, such material cannot be tested, and its prejudicial effect has the potential to outweigh any probative value. The content of this material reflects largely the interpretation of the events as they unfolded by the writer of the article, and constitute opinions which are not of assistance to the Full Bench in determining the issues in dispute, and will be given little, if any weight.
50 The other material however, which is referred to at various points in the SOAF, in terms of the conduct and behaviour of the ANF and Ms Reah, will be given weight by the Full Bench. It is part of ‘bringing to life’ the various allegations made by the Registrar, and the tone and context in which various statements made by Ms Reah on behalf of the ANF, are to be regarded.
51 The Registrar’s case then closed.
The parties confer
52 On the opening of the case for Ms Reah and the ANF, senior counsel informed the Full Bench that they did not intend to lead any evidence. Senior counsel also informed the Full Bench that as a result of discussions with counsel for the Registrar, the remainder of the hearing day could be profitably used by the parties conferring amongst themselves about the future conduct of the matter. The Full Bench agreed with this course and the matters were then adjourned until Wednesday, 12 April.
An agreed position emerges - but some difference in approach
53 At the commencement of the proceedings on Wednesday, 12 April, counsel for the Registrar informed the Full Bench that the conferral of the parties had led to an agreed position in relation to a proposed penalty for consideration by the Full Bench. The proposed penalty against the ANF was the amount of $350,000. A table prepared by the Registrar headed ‘Applicant’s Breakdown of Agreed Penalty for Contraventions by ANF’ was provided to the Full Bench. This represented, as I understood it, the Registrar’s allocation of proposed penalties for each contravention within the various categories of contravention set out in the tables in Schedule 1, attached as Annexure A to these reasons. For ease of reference, the table is set out as follows:
Applicant's Breakdown of Agreed Penalty
for Contraventions by ANF

Contravention #
Summary
Number of contraventions
Maximum penalty
Proposed penalty
A-1
Breach of Defer Ballot Order by proceeding with ballot
1
$10,000
$8,000
($8,000 per contravention)
B-1 to B-12
Breach of No Further Claim Order
12
$120,000
$20,000
($1,666.67 per contravention)
C-1 to C-1,808
Breach of No Strike Order
1,808
$18,080,000
$200,000
($110.62 per contravention)
D-1 to D-4
Breach of Notice Order
4
$40,000
$10,000
($2,500 per contravention)
E-1 to E-12
Breach of No Encouragement Order through communications to ANF Members
12
$120,000
$25,000
($2,083.33 per contravention)
E-14
Breach of No Encouragement Order through provision of bus services
808
$8,080,000
$15,000
($18.56 per contravention)
E-15
Breach of No Encouragement Order through payment of strike pay subsidies
939
$9,390,000
$50,000
($53.25 per contravention)

E-16
Breach of No Encouragement Order through distribution of paraphernalia
1
$10,000
$2,000
($2,000 per contravention)
F-1 to F-5
Breach of No Public Commentary Order
5
$50,000
$20,000
($4,000 per contravention)

TOTAL: $350,000

Note: This range has been prepared having regard to the totality of the overall penalties, and therefore a reduction to one penalty may result in an increase to other penalties.
54 Counsel for the Registrar submitted that the table, and the agreed penalty amount, should be considered along with the course of conduct principle and the totality principle, for the purposes of fixing a final penalty sum.
55 Senior counsel for Ms Reah and the ANF confirmed the agreed position in relation to the $350,000 total penalty against the ANF in application FBM 2 of 2022, and the maximum penalty of $10,000 for Ms Reah in relation to application FBM 1 of 2022. Senior counsel then made some brief submissions in relation to the approach that ought to be taken to apportionment, having regard to the course of conduct and totality principles.
56 Senior counsel contended that a better way of approaching the matter would be to apportion the total sum agreed in accordance with Schedule 1, which contains 39 categories of contraventions. Applying this methodology, and allocating the total agreed sum of $350,000 amongst them, leads to a dollar figure contravention of $8,974.35 per category of contravention. This sum is close to the maximum $10,000 penalty prescribed by s 84A(5)(a)(ii) of the Act. The Full Bench requested the parties file further brief written submission as to the approach to be taken by the Full Bench to the agreed penalty position, given it raised somewhat novel issues for consideration. I will deal with these issues later in these reasons.
Initial undertakings
57 The Full Bench raised with senior counsel for Ms Reah and the ANF the issue of an undertaking as to future conduct. In particular, counsel’s attention was drawn to an article in the West Australia newspaper of 11 April 2023, in which Ms Reah was reported as not denying the contravention of the Senior Commissioner’s orders, but adding that she had no regrets over organising the strike action. The Full Bench invited senior counsel to obtain instructions from Ms Reah and the ANF in relation to an undertaking about their future conduct.
58 Following a brief adjournment, senior counsel announced he had obtained instructions from his clients and the undertaking in essence put to the Full Bench was that for the duration of the dispute in application C40 of 2022, being the matter before the Senior Commissioner, all further orders of the Commission would be complied with in the usual form and manner. Senior counsel explained the context for such an undertaking which, with respect, was somewhat underwhelming to the Full Bench.
59 The Registrar in response considered that the undertaking proffered fell far short of what could be regarded by the Full Bench as a mitigating circumstance under s 84A(4)(a) of the Act. The Registrar submitted that additionally, given the conduct and behaviour of Ms Reah and the ANF, there was no contrition or remorse expressed as a part of the undertaking and that it ought to be given little weight.
60 The Full Bench provided senior counsel for Ms Reah and the ANF a further opportunity to proffer additional undertakings and commitments as to future conduct, all of which was requested by 4 pm Friday, 21 April 2023.
Further undertakings provided to the Full Bench
61 The day after the conclusion of the hearing, on 13 April 2023, both Ms Reah and the ANF filed documents entitled ‘Undertaking As To Future Conduct’. Given the importance attached by the Full Bench to undertakings in the context of the allegations advanced by the Registrar, and the matters agreed as set out in the SOAF, I reproduce the undertakings in full as follows. Ms Reah’s undertaking states:
This undertaking is given on behalf of Janet Reah, Secretary, Australian Nursing Federation, Industrial Union of Workers Perth (‘ANFIUWP’), on 13 April 2023, in relation to her personal future conduct with respect to industrial matters.
Ms Reah understands that the facts giving rise to the proceedings in FBM 1 and FBM 2 are of the utmost gravity for her personally and also for the ANFIUWP, of which she is the principal officer.
These proceedings have given her a greater appreciation of the position of privilege held by organisations registered under the Industrial Relations Act 1979 (WA) (‘IR Act’) and the benefits flowing from that privilege to members of the ANFIUWP.
Further she appreciates the provisions of s 61 of the IR Act that she as a member of the ANFIUWP and the ANFIUWP as a registered organisation are 'subject to the jurisdiction of the Court and the Commission and this Act.’
Ms Reah has reflected on the facts giving rise to the applications in FBM 1 and FBM 2 and wishes now to reassure the Full Bench that her future conduct in relation to matters within the jurisdiction of the Western Australian Industrial Relations Commission (‘WAIRC’) will be unqualifiedly according to the provisions of the IR Act.
Further, in future Ms Reah would like to reassure the Full Bench that she will comply with all orders of the WAIRC and will, if it is considered necessary or appropriate, exercise the appeal options available under the IR Act.
62 The undertaking from the ANF is as follows:
This undertaking is given on behalf of the Australian Nursing Federation, Industrial Union of Workers Perth (‘ANFIUWP’), on 13 April 2023, in relation to its' future conduct with respect to industrial matters.
The ANFIUWP understands that the facts giving rise to the proceedings in FBM 1 and FBM 2 are of the utmost gravity for the ANFIUWP.
These proceedings have given the ANFIUWP a greater appreciation of the position of privilege held by organisations registered under the Industrial Relations Act 1979 (WA) (‘IR Act’) and the benefits flowing from that privilege to members of the ANFIUWP. Further, the ANFIUWP appreciates the provisions of s 61 of the IR Act that the ANFIUWP as a registered organisation is 'subject to the jurisdiction of the Court and the Commission and this Act'.
The ANFIUWP has reflected on the facts giving rise to the applications in FBM 1 and FBM 2 and wishes now to reassure the Full Bench that its' future conduct in relation to matters within the jurisdiction of the Western Australian Industrial Relations Commission (‘WAIRC’) will be unqualifiedly according to the provisions of the IR Act.
Further, in future the ANFIUWP would like to reassure the Full Bench that it will comply with all orders of the WAIRC and will, if it is considered necessary or appropriate, exercise the appeal options available under the IR Act.
This undertaking is given by Ms Janet Reah, Secretary and principal officer of the ANFIUWP as the elected Secretary on behalf of the Council and membership of the ANFIUWP.
63 I regard these undertakings as significant for the purposes of s 84A(4)(a) and in the consideration of the agreed penalty, in the context of specific and general deterrence. I turn now to consider s 84A of the Act.
Approach to section 84A of the Act
64 Section 84A is in Part III – Enforcement of Act, awards, industrial agreements and orders. This part of the Act deals exclusively with enforcement and plays no part in the machinery of dispute resolution by the Commission under the Act. Division I establishes the Industrial Magistrates Court which exercises exclusive general and prosecution jurisdiction for the enforcement of a range of industrial instruments and legislation and for the prosecution of offences under the Act. Within its general jurisdiction, under s 81CA(1), the Court also exercises a civil penalty jurisdiction for contraventions of relevant legislation involving a civil penalty provision, which jurisdiction is prescribed by s 83E and for serious contraventions, s 83EA of the Act, which is set out in Division II.
65 Also, in Division II in s 82, is the jurisdiction of the Full Bench to hear and determine applications made under s 84A, which jurisdiction is exclusive to the Full Bench by s 82(2). The exclusive jurisdiction of the Full Bench as to enforcement of the Act, or a direction, order or declaration made or given under ss 32, 44(6) or 66, does not extend to a civil penalty provision or an offence provision: s 82(3). As noted earlier in these reasons, the increase in the maximum penalty in s 84A(5)(ii) from $2,000 to $10,000, came into effect from June 2022.
66 Section 84A of the Act relevantly provides as follows:
84A. Certain contraventions of Act, enforcement of before Full Bench
(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) or 74) or an order or direction made or given under section 66 —
(i) the Minister; or
(ii) the Registrar or a deputy registrar; or
(iii) an industrial inspector; or
(iv) any organisation, association or employer with a sufficient interest in the matter;
or
(b) section 44(3) or a direction, order or declaration given or made under section 32 or 44, the Registrar or a deputy registrar at the direction of the Commission,
may make application in the prescribed manner to the Full Bench for the enforcement of that provision, order, direction, declaration or section.
[(2) deleted]
(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) must 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, must 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 $10 000; 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 can any costs be given against the Minister, the Registrar, a deputy registrar, or an industrial inspector.
(6) In proceedings under this section costs cannot be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the Full Bench, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.
(7) Where the Full Bench, by an order made under this section, imposes a penalty or costs it must 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 is the standard observed in civil proceedings.
67 The terms of s 84A of the Act were considered in The Registrar of the Western Australian Industrial Relations Commission v The State School Teachers Union of W.A. (Incorporated) [2008] WAIRC 00270; (2008) 88 WAIG 333. This case involved an application for the enforcement of an order of the Commission made under s 44 of the Act by the Registrar. Industrial action had been taken on 28 February 2008 by the SSTU, in the form of a stop work meeting of schoolteachers employed in public schools throughout the State, in connection with industrial agreement negotiations. On 25 February 2008, Harrison C issued orders on the application of the employer, the Department of Education and Training. The orders made were in the usual terms that the proposed industrial action not take place; that there be no further industrial action in the form of stop work meetings concerning negotiation for a new industrial agreement; and that the union take all reasonable steps to inform its members as to the terms of the Commission’s orders. The orders also required the parties to confer with a view to the resolution of the issues in dispute, on 29 February 2008, with further compulsory conference proceedings to be held before the Commission on 29 February 2008.
68 It was common ground in that matter, which was the subject of a short, ‘Agreed Matters’ document, that the SSTU did contravene the Commission’s order, in that the stop work meeting did take place and furthermore, the union did not take reasonable steps to immediately inform its members of the need to comply with the order. As a part of the Agreed Matters, the SSTU gave an undertaking to, in future, comply with orders of the Commission. The undertaking was the subject of a joint submission by the parties to the proceedings, that its acceptance would be an appropriate disposition of the matter before the Full Bench, for the purposes of s 84A(5)(a)(i) of the Act.
69 Importantly, in those proceedings, the allegation advanced by the Registrar, which was a common position, was that the taking of the industrial action, and the failure by the SSTU to inform its members of the Commission’s orders, constituted a contravention and the case before the Full Bench was argued, and determined, on that basis (emphasis added). Furthermore, and also importantly, the order in SSTU was in quite different terms to the orders made by the Senior Commissioner the subject of these proceedings, and is a matter of significance. I will turn to these matters in more detail later in these reasons. Accordingly, the issues arising in these proceedings, specifically the characterisation of the contraventions for the purposes of s 84A of the Act, did not arise for consideration in SSTU.
70 In SSTU, Ritter AP, in considering the nature and purpose of the enforcement jurisdiction of the Full Bench under s 84A made some general observations at [70] to [76] 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.
72 The Act does not contain any separate process for dealing with a breach of an order as a contempt of court, save in the instances of the Industrial Appeal Court (IAC) and the President, ‘in the exercise of the jurisdiction conferred on him by this Act and when presiding on the Full Bench or sitting or acting alone…’ (See ss92(1) and (4) of the Act). The IAC and the President have the ‘same power to punish contempts of its power and authority as has the Supreme Court in respect of contempts of Court ...’ (s92(1)). Section 92(2) specifically says that a contempt may be punished by a fine, ‘without prejudicing the generality of the power…’. The powers of the Supreme Court for a civil or criminal contempt include committal (meaning imprisonment) and the imposition of a fine. Apart from any inherent limitations against excessive fines, there is no maximum to the fine that can be imposed (See Kennedy v Lovell [2002] WASCA 226 at [6]). It is not clear why the legislature has drawn a distinction between the disposition of a breach of an order of the President, as a member of the Commission when acting alone or as part of the Full Bench and those made by other members of the Commission, given that the Commission is a court of record (s12 of the Act). As I will elaborate a little later on there is also a different regime in place for dealing with a contempt, by amongst other things the breach of an order, in the Magistrates Court of Western Australia and the State Administrative Tribunal of Western Australia (SAT).
73 The purpose of taking proceedings against someone for acting in breach of a court order are clear. In BHP Steel, Tamberlin and Goldberg JJ (with whom Moore J agreed) cited Mudginberri Station and said at paragraph [36]: ‘The majority emphasised (at CLR 107) that the underlying rationale of the exercise of the contempt power was that it is necessary to uphold and protect the efficient administration of justice. In the case of an imposition of a fine or where committal is ordered, the purpose is to protect the efficient administration of justice by demonstrating that the court's orders will and must be enforced. If a court lacks the means to enforce its orders then they could be disobeyed with impunity and ultimately litigants would suffer and administration of justice would be brought into dispute: see Lowe & Sufrin, Borrie & Lowe's Law of Contempt, 3rd ed, 1996, p 4. There is an important distinction between casual disobedience, where it may readily appear that the primary purpose of exercising the power is to vindicate the rights of the successful party, and instances of disobedience accompanied by public defiance, where the primary purpose of exercising contempt power is to establish the court's authority: see Mudginberri at CLR 108.’
74 Similarly, McHugh J in Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 said at [88]: ‘If breaches of the orders of the courts were regarded as of little moment, respect for and observance of the law would inevitably deteriorate and, ultimately, pose a threat to social order.’ (Citing Mudginberri at 115); and see also Kirby J in Pelechowski at [147]-[149]).
75 The observation of McHugh J was applied by Heerey J in Mobileworld Communications Pty Ltd v Q and Q Global Enterprise Pty Ltd [2004] FCA 1200 at [22] and Spender J in World Netsafe at [11].
76 In my opinion these comments are apposite to this s84A application. The fact that both Mudginberri Station and BHP Steel were cases of union industrial action in breach of court orders supports this. These judicial comments establish that there is a public interest in applications for the ‘enforcement’ of the disobedience of an order of the Commission (see Mudginberri Station at 107).
71 As to the factors of seriousness, any proffered undertakings and circumstances of mitigation, as identified factors to consider in s 84A(4)(a), Ritter AP observed at [78] to [87]:
(d) Seriousness
78 If a failure to comply or contravention of one of the matters specified in s84A(1) is proved, s84A(4)(a) requires the ‘seriousness of the contravention or failure to comply’ to be taken into account in dealing with the application. It seems clear that the reason why the Full Bench must take into account ‘seriousness’ is because there is a myriad of conduct which might comprise a failure to comply or a contravention covered by s84A.
79 Section 84A(1) applies to 5 different matters, being a contravention or failure to comply with:
(i) any provision of the Act;
(ii) an order or direction made under s66;
(iii) section 44(3) (a summons to attend at a compulsory conference);
(iv) a direction, order or declaration given or made under s32; or
(v) a direction, order or declaration given or made under s44.
80 In the present application there has been the contravention of an order of the Commission made under s44 of the Act. In assessing seriousness the focus is on what the order required and how it was contravened.
81 I have earlier set out the relevant submissions by the parties about how seriousness is to be determined. In my opinion the question of seriousness needs to be looked at by reference to all of the relevant facts and circumstances. I do not think that any narrow or compartmentalised view is appropriate. For example I do not think there is necessarily a distinction between the manner of a breach and the consequences thereof or that the former is necessarily the primary focus of the section rather than the latter. Instead I think the appropriate methodology is to take an overall view of seriousness on the basis of a synthesis of the context, facts and circumstances which are relevant in any particular case. Different factors might be present or dominant in one case and not another.
82 This analysis and what follows is supported by cases on contempt and primarily those constituted by the breach of a court order. Examples are World Netsafe, BHP Steel, Mobileworld Communications and Mudginberri Station. In World Netsafe, Spender J at [16]-[17] set out principles to guide the ‘appropriate penalty’. So too did Malcolm CJ (Murray and Steytler JJ agreeing) in Kennedy v Lovell at [14]ff, albeit in the different context of the failure to obey a summons issued by a Royal Commission. I have found these helpful. As to the relevance, the consequences of a contravention, in assessing seriousness, I am reinforced in the view I take by this observation of Spender J in World Netsafe at [17]:
‘As always, in assessing the seriousness of a contempt, the practical consequence of the contemnor's failure to comply and its effect upon the effective administration of justice in the case in question is a relevant factor.’
83 Without intending to be exhaustive, in assessing the seriousness of a contravention of an order of the Commission, relevant facts and factors will usually be:
(i) The type of order which was contravened.
(ii) The circumstances in which the order was made.
(iii) The reasons why the contravention occurred.
(iv) Linked to (iii), the nature of the contravention; how it occurred and whether it was deliberate, unintentional or inadvertent.
(v) Linked to (iii) and (iv) whether there had been other breaches of the same order or related orders.
(vi) The consequences of the contravention upon:
(aa) The functioning of the Commission.
(bb) The public.
(cc) The other party to any industrial dispute.
(vii) The status of the contravener.
84 I will later follow this process of analysis in assessing the seriousness of the respondent’s contravention.
(e) Undertakings
85 The effect of an undertaking upon the appropriate disposition depends upon the nature of the undertaking, by whom it is given, and the nature and seriousness of the failure to comply or contravention. I will later consider the respondent’s proffered undertaking but for present purposes it can be contrasted to a situation where, for example, a person largely through ignorance fails to attend when summonsed under s44 of the Act, and then undertakes to the Full Bench that he/she will attend the next hearing date.
86 The Registrar v McGlew (2006) 86 WAIG 400 illustrates the point. There, Mr McGlew, an employee of a respondent employer was without his knowledge nominated by that employer as the appropriate person to be summonsed to represent it at a s44 conference. Mr McGlew received late notice of the summons, was then advised by more senior employees to ignore it and by the time the matter came before the Full Bench the industrial dispute was settled. The Full Bench decided it was appropriate to accept Mr McGlew’s undertaking ‘to comply with any future summons or similar order of the Commission requiring me to attend a conference or any other matter requiring my presence before the Commission’.
(f) Mitigation
87 Facts and circumstances of mitigation are those which make the contravention or failure to comply less serious or are otherwise relevant in reducing the extent to which the disposition is required to be punitive. Again without attempting to be extensive, mitigatory factors of the second type can be:
(i) The provision of an apology or other expressions of remorse or public contrition.
(ii) A lack of relevant record of failures to comply or contraventions
(iii) Admissions of the contravention or at least relevant facts which deserve recognition by the Commission as indicating ‘the willingness of the offender to facilitate the course of justice’ (Cameron v The Queen (2002) 209 CLR 33 at [14]). The consequence of this will be the saving of the time and resources of the applicant and the Commission.
(iv) Related to (i) and where relevant a cessation of the contravening conduct or demonstration that the ‘lesson has been learned’.
72 The other member of the Full Bench to comment on the approach to s 84A, as set out above, was Smith SC (as she then was). Senior Commissioner Smith was in general agreement with Ritter AP as to the approach to s 84A, having a similarity with contempt proceedings, and its purpose to protect the efficient administration of the Commission and the enforcement of its orders. She said that in addition to the factors identified above in the extract of Ritter AP’s reasons at [83], as to seriousness of a contravention, the fact of wilful or deliberate disobedience, as opposed to careless, accidental, negligent, unintentional disobedience, or conduct in haste, was the most important consideration: at [170].
73 Given the deliberate nature of the conduct in SSTU, and the very public nature of the defiance of the Commission’s order, both Ritter AP and Smith SC found the conduct of the union in that case as being ‘contumacious’. It was not ‘casual, accidental or unintentional’ in the sense in which those phrases were discussed in Mudginberri Station, referred to in the extracts set out above. In all of the circumstances a financial penalty of $1,500 was imposed, and not the maximum penalty of $2,000. As to this matter, Ritter AP at [143], noted the low level of the maximum financial penalty, and the very small amount of a fine which would be imposed for each member of the union. Ritter AP observed that given the purposes of a financial penalty to impose a punishment which has some ‘sting’, and to obtain deterrence, it was difficult to see how even the maximum fine would achieve that outcome in the circumstances of that case before the Full Bench.
74 Both parties referred to SSTU in their written and oral submissions, and neither argued that it should not be followed, in relation to the general approach to s 84A of the Act. This is subject to the caveat that I have noted above that the characterisation issues arising in this case, did not arise for consideration in SSTU. With that qualification, I will adopt and apply the approach in SSTU for present purposes. This is consistent with the general law in this jurisdiction that the Full Bench should follow its earlier decisions unless persuaded they are clearly wrong: : Hanssen Pty Ltd v Construction, Forestry, Mining and Energy Union (Western Australian Branch):  [2004] WAIRC 10828; (2004) 84 WAIG 694; Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training: [2010] WAIRC 00089; (2010) 90 WAIG 127 (See too The Registrar v LHMWU [2008] WAIRC 01393; (2008) 88 WAIG 1937 where SSTU was discussed and applied).
75 Furthermore, it is also pertinent to observe that whilst there is separate provision made for the enforcement by the Industrial Magistrates Court of civil penalty provisions in Part III of the Act in s 83E and s 83EA, the nature and scope of the jurisdiction of the Full Bench under s 84A should be regarded as analogous to a civil penalty jurisdiction. This being so, the principal purpose of such enforcement provisions is deterrence, both specific and general. The most recent statement of the High Court in this regard is found in Australian Building and Construction Commissioner v Pattinson and Another [2022] HCA 13; (2022) 399 ALR 599. This case involved proceedings for a civil penalty under s 546(1) of the Fair Work Act 2009 (Cth), against the CFMMEU and one of its officers. The plurality (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), when commenting on the nature of such proceedings, said at [15] to [17]:
15 Most importantly, it has long been recognised that, unlike criminal sentences, civil penalties are imposed primarily, if not solely, for the purpose of deterrence. The plurality in the Agreed Penalties Case said:
‘[W]hereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:
'Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act] ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.'‘
16 In a similar vein, in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner, the Full Court of the Federal Court cited the decision of French J in Trade Practices Commission v CSR Ltd and the reasons of the plurality in the Agreed Penalties Case as establishing that deterrence is the ‘principal and indeed only object’ of the imposition of a civil penalty: ‘[r]etribution, denunciation and rehabilitation have no part to play’.
17 In explaining the deterrent object of civil penalty regimes such as that found in the Act, the majority of this Court in Australian Competition and Consumer Commission v TPG Internet Pty Ltd approved the statement by the Full Court of the Federal Court in Singtel Optus Pty Ltd v Australian Competition and Consumer Commission that a civil penalty:
‘must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business’.
76 I would add in this context, specifically referring to the enforcement of industrial instruments, what was said by the Full Bench in Callan v Smith [2021] WAIRC 00216; (2021) 101 WAIG 1155, a case I will discuss in more detail below, where it was observed at [30]:
The courts have said many times in the context of industrial legislation that the purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance. The High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2010) 258 CLR 482 confirmed and stated clearly that the primary, if not the only object of penalties in industrial relations legislation, is protective in promoting the public interest in compliance. The plurality cited French J’s statement in Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) 13 ATPR 41-076 (20 December 1990):
The principal, and I think probably the only object of the penalties…is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.
77 I will turn now to consider, in addition to the facts agreed, the evidence led in the proceedings, and the limited factual matters remaining in dispute.
The evidence and findings as to factual matters in dispute
78 The standard of proof in these proceedings is the civil standard, on the balance of probabilities: s 84A(8) Act. That standard is whether, on the evidence, a tribunal of fact may reach an affirmative conclusion on the basis of it being ‘more probable than not’: Miller v Minister of Pensions [1947] 2 All ER 372 at 373-374 per Denning J.
79 Dr Codreanu is responsible for developing and implementing procedures concerning the management of health issues in disaster situations. This involves coordinating the Department’s operational response. Prior to becoming the Director, Dr Codreanu was Medical Advisor to the State Health Incident Coordination Centre and from June 2021 to November 2022, was the State Health Incident Controller. Overall, Dr Codreanu as the Director, is responsible for activating and overseeing the SHICC when dealing with any incidents that are likely to have an impact on the delivery of health services within the health system in the State.
80 Dr Codreanu outlined the structure of public health services provided throughout the State. He referred to the Health Services Act 2016 (WA) which establishes the ‘Health Service Providers’, which include:
(a) the North Metropolitan Health Service;
(b) the East Metropolitan Health Service;
(c) the South Metropolitan Health Service;
(d) the WA Country Health Service; and
(e) the Child and Adolescent Health Service.
81 The overall responsibility for the Department of Health rests with the Chief Executive Officer.
82 Dr Codreanu gave evidence that of the 47,000 employees employed in the health system, some 19,226 nurses and midwives are employed under the WA Health System – Australian Nursing Federation – Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses – Industrial Agreement 2020 (Agreement). From media reports in October 2022, Dr Codreanu said he became aware of the possibility of industrial action being taken by the ANF. The SHICC was engaged in preparations for the possibility of various types of industrial action over the period of October to November 2022. He said that he was notified of the possibility of rolling stoppages at public hospitals which were going to occur from about mid-November 2022 at Fiona Stanley Hospital. Dr Codreanu said that he became aware that this had been called off.
83 On 22 November 2022, Dr Codreanu was involved in an urgent meeting between the Chief Executives of State Health Service Providers to discuss the possibility of a State-wide strike to take place on 25 November 2022. The purpose of the meeting was to discuss ways of mitigating the risk of such industrial action to the State health system. The next day on 23 November, the SHICC was activated, because the prospect of the strike was regarded as a major incident which needed an emergency response for disaster preparedness. Dr Codreanu testified that the risks posed by a State-wide strike were very significant.
84 Dr Codreanu said that given the important role played by nurses and midwives in the State’s health system, the absence of nurses and midwives from the system could have a potentially disastrous impact, both for the health system generally, and for individual patients. He said that even if the worst impact of a one day strike were avoided, there are risks in relation to patients who have important surgeries and procedures delayed or deferred, which may result in poorer health outcomes for those patients. This has a flow on impact to the patients’ families, friends, carers and employers. In the case where procedures are deferred, Dr Codreanu said this can have a knock-on effect, causing further delays in the scheduling of other required procedures. Those nurses remaining working in the system, are placed under added stress when a strike takes place.
85 Dr Codreanu said that risk management in the case of industrial action, is more effective to manage the greater the degree of notice of the industrial action that is given. Appropriate time enables the health system to put in place necessary contingencies; to communicate internally and communicate externally; and to inform the public regarding how the health system will be managed during any industrial action. In the case of the State-wide strike on 25 November 2022, Dr Codreanu said that it was hard to prepare for it because of uncertainty concerning a number of factors, including the number of nurses and midwives across some 80 hospitals and community clinics that may participate; whether, after the proposed rallies employees would return to work or take the whole day off; the extent to which nurses and midwives, not members of the ANF, would also go on strike; and whether high risk clinical areas such as intensive care units, emergency departments, coronary care units, neonatal and labour wards and operating theatres, would be exempt. He said that having only two days’ notice of the strike meant he had no idea of the magnitude of the impact. A large part of the difficulty in responding was managing the uncertainty.
86 Another factor was whether the industrial action would extend beyond one day. Dr Codreanu said that at the time, these potential risks were made worse because the ANF was defying orders of the Commission; conflicting communications were emerging from the union, which was encouraging employees to strike; these communications and this encouragement could extend to agency or NurseWest staff, upon whom the Department of Health needed to rely for staffing shortfalls; transport was being offered by the union to members; and it was unclear as to how many employees would take part in the industrial action.
87 Given all of these uncertainties, Dr Codreanu’s evidence was that it was far more difficult to make preparations to minimise the impact on the State health system and a State-wide strike was a much greater risk to both the health system and a larger number of patients. A significant uncertainly identified by Dr Codreanu regarding replacement agency nursing staff, was how many of them would actually turn up for work on the day of the strike.
88 Whilst the operational response to the strike was undertaken by individual Health Service Providers, the SHICC provided an overall controller function, on behalf of the entire health system. In terms of preparations undertaken by Health Service Providers on an operational level, these included deferral of all Category 2 and Category 3 surgeries; deferring all non-urgent patient appointments; and deferring all non-emergency work.
89 Additionally, in addition to Category 2 and Category 3 elective surgery, some Category 1 elective surgeries were also cancelled as a consequence of the strike. Category 1 elective surgery is described as ‘urgent’ as it has the potential to deteriorate quickly to the point where it may become an emergency situation. Some 87 Category 1 elective surgeries were cancelled. The remaining, of a total of 338 cancellations, were Category 2 (166) and Category 3 (85). In material compiled for Dr Codreanu by the Department of Health, attached as TAC1 to his witness statement, was a summary of the effects of the State-wide strike on 25 November 2022. This material was taken from information provided directly by Health Service Providers and also business records of the various health bodies.
90 Annexure TAC1 sets out an overall summary of the Department of Health response to the industrial action. While I do not intend to set out all of the material included in it, Dr Codreanu cited some examples of deferred health care, to illustrate the impact of the State-wide strike, from information provided by Health Service Providers. These examples included:
(a) the resection of tumour and insertion of an auditory brainstem implant, which is a 12-hour procedure involving a multi-disciplinary team and is a collaborative surgery with substantial post-operative care in intensive care (Category 2);
(b) a hemi glossectomy which similarly requires 12 hours of surgical time and involves two operating teams consisting of multiple specialist clinicians and is extremely difficult to reschedule (Category 1);
(c) a biopsy to confirm prostate cancer (Category 1); and
(d) the cancellation of the full elective caesarean list at Osborne Park Hospital.
91 The impact of the cancellation of 338 elective surgeries and 350 outpatient appointments as a result of the strike, was compounded by the effect of the COVID-19 pandemic, which had already significantly impacted the waitlist for elective surgery. The knock-on effect was exacerbated, in that not only were immediate patients affected, but future patients were also affected where their surgery needed to be postponed as a result of the rebooking of other surgery.
92 There were also direct financial costs incurred by the Department of Health as a result of the strike. This included $40,378 for external staff (808 agency and NurseWest staff); $12,000 in standing up and staffing of the SHICC between 24 November and 26 November 2022; and approximately $620,000 in lost activity based funding that would otherwise have flowed to Health Service Providers, had elective surgery not been cancelled.
93 Whilst Dr Codreanu, based on reports from Health Service Providers over the period 25 and 26 November 2022, concluded that preparations taken enabled the health system to continue functioning at an acceptable level, and potentially disastrous effects of the strike were avoided, inescapably, from Dr Codreanu’s evidence, the impact of the State-wide strike across the health system was very significant. I do not regard the good management by those responsible for enabling the health system to operate at an acceptable level, to be in any way, a mitigating circumstance in favour of the ANF. Rather, it is a testament to the efforts of those staff responsible for the disaster management of the health system, all health staff who were at work on 25 November 2022, and in particular, those nurses and midwives both directly employed, and agency staff, who remained at work.
94 On the evidence I am satisfied, and I find, that the State-wide strike by the ANF had a major impact on the State health system. The act of cancelling large numbers of elective surgeries and outpatient appointments alone, is very significant. One cannot discount the profound effect on those patients who had their elective surgery cancelled, including some that were Category 1 - Urgent and had major procedures cancelled. The ultimate outcome and any possible adverse consequences may not be known for some time. The cancellation of elective surgery of this kind not only impacts the individual patient, but the flow-on effects to other elective surgeries, combined with the impact of pandemic related delays, places additional strain on an already stretched health system. Those staff left to work in the system State-wide, attempting to cover the gaps left resulting from those striking, no doubt placed additional strain on those staff.
95 Mr Vincent testified that Health Support Services provides shared services to all of the public health system in the State including the Department of Health and all Health Service Providers. This includes payroll, employment contracts, procurement, IT and the engagement of casual nurses through NurseWest.
96 In response to a witness summons, Mr Vincent produced to the Commission on 20 March 2023, a series of reports from Health Support Services business records, listing those nurses and midwives employed under the Agreement, who were recorded as having applied for or taken unpaid strike leave, or sick or personal leave on 25 November 2022. A copy of the report was annexure JV1 to Mr Vincent’s witness statement. Additionally, Mr Vincent also provided to Dr Codreanu an email dated 29 March 2023, which contained a copy of the same report, along with a summary and some explanatory comment. That was annexure JV2 to Mr Vincent’s witness statement.
97 In terms of the origin of the information, Mr Vincent explained in JV2 that the data on numbers of employees on personal leave and strike leave for 25 November 2022, is derived from the rostering systems used by each Health Service, which record rosters and leave types. This system then feeds into and forms the basis for payments to employees, under the payroll systems used by each Health Service Provider.
98 The total number of employees on ‘strike leave unpaid’ or ‘unpaid strike leave’, with the different description depending on the payroll system in use, was 1,812, as set out in the table in JV1. In his explanatory note in JV2, Mr Vincent referred to what appeared to be duplicate records, which contained 16 entries for individuals with the same first and last names, but different employee identification numbers, who were rostered on different shifts. Whilst Mr Vincent accepted in cross-examination that the quality of the data is dependent on the accuracy of the inputs into the system, and this may be why there is an overlap, as opposed to each being an individual employee, he explained why in JV2, he reduced the number from 1,812 to 1,808 employees on unpaid strike leave.
99 The additional table in JV2, containing the duplicate entries, is a screenshot of a larger table in an excel spreadsheet that contained further information as to leave type. This further information described the leave type for this duplicate group as either unpaid strike leave or strike leave unpaid, as opposed to other types of leave, such as personal leave. Mr Vincent explained that the reason he reduced the total number to 1,808 from 1,812, was some of the persons highlighted in the table had personal leave against their name, and not strike leave. Of the total of 16, eight were on unpaid strike leave. Accordingly, Mr Vincent halved this number to four, to account for any overlap.
100 Mr Vincent also said that the data in JV1 and JV2 was extracted from the respective data systems in March 2023. Given this, employees had the opportunity to correct any errors in their recorded data, because it is the basis for what they are paid. Thus, those who may have been incorrectly recorded as having been on unpaid strike leave, rather than personal leave, which is paid leave, have an incentive to correct any such error.
101 It is an agreed fact that at least 1,758 ANF members took part in industrial action on 25 November 2022, by walking off the job or failing to report for duty.
102 Mr Vincent’s evidence as to the number of relevant employees who were rostered on unpaid strike leave is derived from business records of the Department of Health used in its payroll system. That information, I am able to assume, has a sufficient degree of rigour to regard it as reliable. Also relevant, is Mr Vincent’s evidence that employees are able to correct their records. Given the financial penalty of a day’s absence being incorrectly recorded as unpaid strike leave, I am satisfied on balance that any errors in recording would have been resolved from the time of the industrial action to March 2023, when the records were extracted from the system.
103 I am satisfied, especially in light of the explanations given by Mr Vincent as to the small variation in the final numbers, that the information is sufficiently accurate for me to find, on balance, that the total number of employees taking industrial action on 25 November 2022, by walking off the job or failing to report for duty, was 1,808. Whilst that finding is made, the related issue is a basis upon which I can be satisfied on balance, that those 1,808 employees were members of the ANF. As to this matter, the Registrar submitted that a number of uncontested matters of fact, support a finding on balance, that the 1,808 employees taking part in the industrial action were more likely than not, members of the ANF. First, the Registrar points to the agreed fact that the ANF has approximately 19,000 members working in the public sector. Second, that the Agreement, as at January 2023, covered some 19,226 employees. Thirdly, that it was ANF members who received the many communications and were provided incentives by the ANF to take industrial action on 25 November 2022.
104 From all of this, I can I be satisfied that it was more probable than not that the additional 50 employees who took industrial action were members of the ANF. The residual figure of 50 employees is a very small figure compared to the total ANF public sector workforce. Of the 19,226 employees covered by the Agreement, nearly 99 percent are ANF members, on the basis of the 19,000 estimate from the ANF, of its public sector membership. Extrapolating this to the evidence, I am satisfied on balance, that the 1,808 employees were members of the ANF.
105 As to the numbers of members of the ANF who took the bus to the rally at Parliament House on 25 November 2022, as noted above, it is an agreed fact that 1,470 ANF members registered for the buses on the ANF iFolio system. The buses were supplied by Horizons West, and were booked and paid for by the ANF. Mr Balla, who was the then Managing Director of the company in November 2022, in response to a witness summons, appeared and produced to the Full Bench, invoices and related documents for bus services provided to the ANF. In his evidence he said some 28 buses were supplied, of various passenger capacities including 24, 50 and 75 person buses.
106 The ANF paid for the supplied buses on 7 December 2022. Whilst he was not entirely sure, Mr Balla said Mr Olson on behalf of the ANF, first made contact with the company to tentatively book buses on or about 21 November 2022. Mr Olson spoke with the office staff about this. Mr Balla accepted, when it was put to him in cross-examination, that nothing in the materials he produced contained information as to how many people actually got on the buses on 25 November 2022.
107 The Registrar submitted, and the ANF did not contest, that a comparison between exhibits A3 and A8, being the lists of staff recorded as having taken unpaid strike leave on 25 November 2022 and those members of the ANF registering for bus transport to the rally, at Parliament House, contained 808 names common to both lists. Whilst it may be inferred, it must be accepted that this evidence does not establish whether in fact, those members of the ANF registering for bus transport, and who took unpaid strike leave, did take the bus to the rally. However, for the following reasons, I am not persuaded that proof of the latter fact is necessary.
108 The No Encouragement Order made by the Senior Commissioner on 23 November 2022, prohibited the ANF from encouraging, ‘in any way’, employees to walk off the job or to fail to attend for duty. This part of the order is very general and broad, and, as a matter of ordinary and natural meaning, is not to be limited by the words that follow, which include by paying or offering to pay employees to do so. There are plainly other ways the ANF could encourage their members to strike, which encouragement it did provide. To ‘encourage’ means to ‘give courage to; urge; advise; stimulate by help, reward etc; promote, assist, …’ (The Concise Oxford Dictionary). In my view, to offer to provide free bus transport to members to enable them to walk off the job or to be absent from duty, so they can attend a rally as a key part of an act of industrial action, and the taking up of that offer by a process of registration of intent, was an act of encouragement by the ANF.
109 It would be undoubtedly a convenient and cost free means for a member of the ANF to travel directly from their normal place of work to the Parliament House rally, to participate in the industrial action. It is open to infer, and I do infer, that it was done to do precisely that which was expressly prohibited by the No Encouragement Order, that being to encourage participation by ANF members to take part in the strike on 25 November 2022.
110 Accordingly, I am satisfied, on balance, that 808 members of the ANF contravened or failed to comply with the No Encouragement Order in this respect.
111 Finally, is the issue of the payment of the strike pay subsidy. It is an agreed fact that as at 27 February 2023, a strike pay subsidy of $150 was paid to 930 members of the ANF, at a total cost of $139,000. However the Registrar submitted that by further and better discovery of documents given by the ANF through Mr Olson on 27 March 2023, an updated list of strike subsidy payments made to members showed the total number of members paid was 939. This appears to have been accepted by the ANF, where, at par 19(c) of its written submissions, the figure of 939 is accepted as the number of members who received such a payment. Accordingly, I find that the number of members of the ANF paid a strike pay subsidy was 939.
112 In the context of all of the above, I now turn to consider the approach the Full Bench should adopt to the agreed penalty, and whether the Full Bench should regard it as an appropriate outcome in the circumstances of this case.
Approach to agreed penalty
Contentions
113 The Registrar made submissions in relation to the proposed agreed penalty of $350,000. It was acknowledged that it was for the Full Bench to determine, under s 84A(5)(a)(ii) of the Act what the appropriate penalty to impose should be. The agreement of the parties is not binding on the Full Bench. The Registrar referred to Volkswagen Aktiengesellschaft v ACCC [2021] FCAFC 49 at [124] to [131] (citing and applying Construction, Forestry, Mining and Energy Union and Another v Director, Fair Work Building Industry Inspectorate and Another [2015] HCA 46; (2015) 258 CLR 482 (The Agreed Penalties Case); Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72). She submitted that, analogously with these civil penalty cases, and having regard to the terms of the Act, the following principles should be applied:
(a) The Full Bench must be persuaded that the penalties proposed by the parties are just.
(b) If the Full Bench is persuaded of the accuracy of the parties’ agreement as to the facts and consequences, and that the agreed penalties proposed are just in all of the circumstances, it would be highly desirable in practice for the Full Bench to accept the parties’ proposal and therefore impose the proposed penalties.
(c) In considering whether the agreed and jointly proposed penalty is just, it is necessary to bear in mind that there is no single just penalty, but rather a permissible range of penalties within which no particular figure can necessarily be said to be more appropriate than the other.
(d) The Full Bench should generally recognise that the agreed penalties are most likely the result of compromise and pragmatism on the part of the Registrar (as the relevant regulator), and to reflect, amongst other things, the Registrar’s considered estimation of the penalty necessary to achieve deterrence, and the risks and expense of litigation had it not been settled.
(e) The Full Bench is not limited to simply determining whether the jointly proposed penalty is within the permissible range, however that might be expected to be a highly relevant and ‘perhaps determinative’ consideration.
114 In the Agreed Penalties Case, the High Court determined that its decision in Barbaro v The Queen (2014) 253 CLR 58, which dealt with submissions as to the available range of sentences in criminal proceedings, had no application to civil proceedings. Accordingly, that case did not preclude the acceptance by a court of an agreed penalty in civil enforcement proceedings. In canvassing the relevant authorities, the plurality, (French CJ, Kiefel, Bell, Nettle and Gordon JJ) referred to the decision of the Full Court of the Federal Court in Mobil Oil and observed at [32] as follows:
By way of explication, the Full Court added five observations, in substance as follows (68):
(1) As noted in Allied Mills and NW Frozen Foods, the rationale for giving weight to a joint submission on penalty rests on the saving in resources for the regulator and the court, the likelihood that a negotiated resolution will include measures designed to promote competition and the ability of the regulator to use the savings to increase the likelihood of other contraveners being detected and brought before the courts.
(2) NW Frozen Foods does not mean that a court must commence its reasoning with the penalty proposed by the parties and then limit itself to a consideration of whether the penalty proposed is within the range of permissible penalties. That is one option, but another is to begin with an independent assessment of the appropriate range of penalties and then compare it with the proposed penalty.
(3) The decision in NW Frozen Foods represented a correct application of the approach enunciated by Sheppard J in Allied Mills (69). As Sheppard J stated, the court is not bound by the figure suggested by the parties. Rather, the court has to satisfy itself that the submitted penalty is appropriate while acknowledging that, uninformed by the agreed penalty submission, the court might have selected a slightly different figure (70). That approach is correct in principle and it has been cited with approval by the High Court of New Zealand in Commerce Commission v New Zealand Milk Corporation Ltd (71).
(4) The decision in NW Frozen Foods is consistent with the imperative recognised in Australian Competition and Consumer Commission v Ithaca lee Works Pty Ltd (72) that the regulator should explain to the court the process of reasoning that justifies a discounted penalty.
(5) The decision in NW Frozen Foods allows for the following possibilities:
(a) if the court is not satisfied that the evidence or information offered in support of an agreed penalty submission is adequate, it may require the provision of additional evidence, information or verification and, if that is not forthcoming, may decline to accept the agreed penalty;
(b) if the absence of a contradictor inhibits the court in the performance of its task of imposing an appropriate penalty, the court may seek the assistance of an amicus curiae or an individual or body prepared to act as an intervener;
(c) if the court is not prepared to impose the penalty proposed by the parties, it may be appropriate to allow the parties to withdraw their consent and for the matter to proceed on a contested basis.
115 As to FBM 1 of 2022, the parties have agreed that the penalty appropriate to be paid by Ms Reah personally is $10,000. The Registrar submitted that by reason of Ms Reah’s conduct, in deliberately and publicly flouting the summons to attend the compulsory conference before the Senior Commissioner on 25 November 2022, the maximum penalty payable by Ms Reah, was appropriate. She submitted that the conduct of Ms Reah constituted a deliberate and very public defiance of the Commission’s authority which ought to be the subject of the maximum penalty, as a matter of specific and general deterrence. Whilst acknowledging the admission by Ms Reah of her contravention, the Registrar submitted that this mitigating factor is not of great weight when regard is had to her overall conduct. Furthermore, the Registrar submitted that the Full Bench has the power to make an order that Ms Reah pay the penalty personally, which order is appropriate in the circumstances of this particular case.
116 As to application FBM 2 of 2022, the Registrar submitted that the agreed penalty of $350,000 was appropriate, having regard to the overall conduct of the ANF, which can only be described as contumacious. The agreed penalty would be, in those circumstances, a just outcome. Whilst acknowledging there is a dispute between the parties as to how the contraventions ought to be characterised, the Registrar made a number of submissions as to the seriousness of the ANF’s conduct for the purposes of determining a penalty under s 84A of the Act, and why the Full Bench should regard the agreed penalty amount of $350,000 as within a range of appropriate penalty outcomes in this case.
117 First, it was contended that as discussed in SSTU, the power of the Full Bench under s 84 in relation to compliance has similarities with contempt proceedings in a superior court of record. As such, proceedings under s 84A before the Full Bench should be regarded as aiming to protect and uphold the authority of the Commission and to maintain public confidence in the Commission, analogously with the role of contempt with maintaining public confidence in the integrity of the court: Attorney General v Times Newspapers Ltd [1974] AC 273. The purpose of penalties for non-compliance should act as both a specific and general deterrent.
118 It was also submitted that in relation to this factor, consideration should be given to the seriousness of each contravention and how that conduct relates to the ‘norms of industrial behaviour which the IR Act seeks to establish’,
119 As to norms of industrial behaviour, it was submitted that participation in the State industrial relations system by a registered organisation, requires that orders made by the Commission are to be obeyed, not substantially, but completely: The Registrar v CFMEU (1989) 69 WAIG 2317 at 2319. As a function of registration as an organisation under the Act, and all of the privileges and rights that registration confers, these carry with them duties and responsibilities, including that of complying with the Commission’s orders: The Registrar v LHMU [2008] WAIRC 01393; (2008) 88 WAIG 1937 per Ritter AP at [124]. A belief by a union that it is acting in its members’ interests cannot surmount its obligations to comply with orders of the Commission, and nor is it open to a union to fail to comply with an order simply because it views the order as inappropriate or invalid: Foster v Australian Competition and Consumer Commission [2014] FCA 240; Secretary of State for Justice v Prison Officers Association [2019] EWHC 3553 (QB) at [61].
120 Importantly, in civil penalty proceedings, the penalty must be set at a level which cannot be regarded by the contravenor, or others tempted to engage in similar behaviour, as merely a cost of doing business: ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640 (per French CJ, Crennan, Bell and Keane JJ at [66]). In this context, the Registrar contended that it was clear that the ANF considered that potential financial penalties imposed by the Commission, resulting from the State-wide strike, was seen as a cost of doing business. Evidence of this was said to be repeated public statements by the ANF, as a large and well-resourced union, that it would pay any fines imposed upon it or individual members. An indication of its capacity is the payment of about $140,000 to members, as a strike pay subsidy.
121 Thus, the Registrar submitted, any penalty imposed by the Full Bench, must be at a level to act as a proper deterrent to such conduct and behaviour. Furthermore, the conduct of the ANF, in relation to both the 18 and 23 November 2022 orders, constituted a planned and deliberate course of defiance. The union planned to, and did conduct its industrial strategy regardless of any intervention by the Commission. This conduct and behaviour was made worse, by the repeated public statements by the most senior representatives of the ANF, that it would continue with its industrial campaign, regardless of any cost or intervention by the Commission. Such public commentary was, as submitted by the Registrar, and should be seen to be a significantly aggravating factor, challenging the independence, authority and integrity of the Commission.
122 As the conduct of the ANF has resulted in multiple contraventions, the Registrar submitted that it would be appropriate for the Full Bench, in assessing the agreed penalty, to have due regard to the course of conduct and totality principles in its determination. This requires a court to have regard to any underlying interrelationship between factual and legal dimensions of two or more contraventions, to ensure that a contravenor is not punished twice for what is essentially the same ‘offence’. Importantly though, this does not mean that multiple contraventions must be regarded as a single contravention, for the purposes of imposing an appropriate penalty: Callan at [58] to [60]. Further, once aggregate penalties are determined, the totality principle requires a review of it, to ensure the final penalty to be imposed is appropriate and commensurate with the overall offending: Callan at [70]. In general terms, the Registrar submitted that the agreed penalty of $350,000 is by a large measure, the highest penalty imposed under s 84A of the Act.
123 It was submitted that the circumstances of this case are the first occasion on which the Full Bench is considering the imposition of multiple penalties for multiple contraventions of an order of the Commission. In reliance on Callan, the Registrar contended that the reasoning in that case applies equally to the enforcement jurisdiction of the Full Bench under s 84A of the Act, and at [16] to [18] of her written submissions regarding agreed penalties, she observed that:
16. In the recent decision of Callan v Smith [2021] WAIRC 00216, the Full Bench determined that the maximum penalty under s 83(4) of the IR Act may be imposed in respect of each contravention which is proven. Sections 83 and 84A are materially identical in that:
(a) the application may be made under s 83(1) or s 84A(1) if a person ‘contravenes’ the relevant obligation, which may readily apply to multiple contraventions;
(b) the power to impose a penalty under s 83(4)(a) or s 84A(5)(a) is in respect of ‘the contravention’ which is proved, being a single, identifiable, individual contravention; and
(c) the principal purpose of each of s 83 and s 84A is deterrence and compliance, which supports such a construction rather than a construction which would result in multiple contraventions being penalised as a single contravention.
17. Further, s 84A(4)(a) requires the Full Bench to have regard to the seriousness of ‘the contravention’, being the single, identifiable, individual contravention for which it may impose a penalty.
18. The Full Bench should conclude that s 84A(5)(a) confers on it the power to impose, amongst other things, a penalty of up to $10,000 for each contravention which is proved.
124 As to the important issue of characterisation in these proceedings, the Registrar made a number of responses to the criticisms advanced by Ms Reah and the ANF, in relation to the Registrar’s approach. The Registrar submitted that there are five sound reasons for her approach to characterisation and they are as follows. First, it is incumbent on her to specifically identify the particular alleged contraventions in order that the Full Bench is able to properly consider them, and equally, that Ms Reah and the ANF know the case put against them. Second, the specific number of contraventions advanced need to be identified, so that the outer limits of penalties that the Full Bench may impose, are clearly defined.
125 Third, the total number of contraventions and hence total maximum penalties, provide a benchmark against which to determine an appropriate penalty, having due regard to the course of conduct and totality principles. Fourth, the Registrar submitted that it is for the Full Bench to assess and make a finding in relation to the number of proven contraventions, which the Registrar submitted were readily ascertainable. The Full Bench is not being asked to undertake its own enquiry as to all possible instances of contraventions.
126 Finally, it was submitted that there may well be circumstances where it is unnecessary and impossible to define a particular number of contraventions however, the present case is not one of them. In this regard, the Registrar referred to ACCC v Coles Supermarkets Australia Pty Ltd [2015] FCA 330. In that case the Federal Court found that Coles Supermarkets had engaged in misleading conduct under the Australian Consumer Law when advertising certain bread products in its supermarkets. In that matter, there was a concession of at least 85 million contraventions of the ACL, each of which attracted a maximum penalty of $1.1 million, leading to possible total maximum penalty of trillions of dollars.
127 The Registrar submitted that whilst there may have been even many more contraventions than that estimate in Coles Supermarkets, there was little point in endeavouring to determine the actual number, given that the court would never impose such a maximum penalty, in any event. However, in the present case, the respondent submitted that the issues are far more confined, and the Full Bench is in a position to make findings as to contraventions, as particularised by the Registrar. Further, even on Ms Reah’s and the ANF’s characterisation, as referred to in their submissions, this takes the penalty close to the total agreed between the parties.
128 The Registrar contended that for all of these reasons, and having regard to the totality of the conduct of the ANF, the agreed penalty amount of $350,000 in relation to application FBM 2 of 2022 is just and appropriate in all of the circumstances. The Registrar further submitted that the breakdown of the agreed penalty as she proposes, as set out in the table above, properly reflects the relative seriousness of each contravention and category of contraventions.
129 The submissions of Ms Reah and the ANF commenced with reference to the decision of the High Court in the Agreed Penalties Case. It was submitted that consistent with the principles discussed in that case, the parties have conferred amongst themselves and proposed an agreed penalty for the Full Bench to consider, whilst accepting it is ultimately for the Full Bench to determine whether that agreed penalty is appropriate.
130 In relation to the issue of characterisation, supplementing their oral submissions made to the Full Bench on the last day of the hearing on 12 April 2023, it was contended that apportioning the $350,000 across the 39 categories of alleged contraventions, as set out in the Updated Schedule of Contraventions provided to the Full Bench by the Registrar, that are attached to these reasons for decision, is the most convenient and appropriate method to adopt. In taking this course, it was submitted that the penalty allocation for each of the 39 categories of contraventions, is an amount of $8,974.35. This amount is towards the upper end of the maximum penalty of $10,000, as provided for in s 84A(5)(a)(ii) of the Act. Having due regard to the principles discussed in SSTU, it was submitted by Ms Reah and the ANF, that in making unqualified undertakings in the terms that they have, and through wide ranging admissions, they have facilitated the course of justice, which is a relevant factor to take into account.
131 Furthermore, the submission was made that there has not been a s 84A enforcement action previously taken against the ANF and nor has there been any such action taken against Ms Reah. The general submission was made that both parties have now learned their lessons and neither have engaged in any further ongoing contravening behaviour.
132 In considering the relevant factors discussed in SSTU, including the seriousness of the contravention, undertakings given, mitigation and a lack of any prior contravening behaviour, it was acknowledged by Ms Reah and the ANF that there was a need for a penalty to be imposed at the higher end of that available to the Full Bench. Having regard to these matters, and adopting the proposed approach by Ms Reah and the ANF, the combined total of 39 distinct contraventions attracting its own penalty, at the upper end of the scale, for a single contravention, is appropriate. This approach pays due regard to the course of conduct principle and the totality principle in reaching a final determination. Moreover, they submitted that the need for deterrence is also satisfied.
133 As to the approach adopted by the Registrar, in reliance upon Callan, Ms Reah and the ANF submitted that this approach was not an appropriate one to adopt. It was submitted that in contrast to award or agreement enforcement claims, which were described as a ‘relatively straightforward exercise to ascertain contraventions’, ascertaining contraventions of orders of the Commission is more difficult. It was also contended that a mathematical, forensic approach to calculating penalties, may lead to a crushing or oppressive outcome, similar to the potential outcome in Coles Supermarkets. On the other hand, Ms Reah and the ANF submitted that their approach, leading to a penalty at the upper end of the penalty range for each of the 39 groups of contraventions, will not only reflect the seriousness of the conduct, but ensure there is an appropriate ‘sting’ in the penalty outcome, and pays due regard to deterrence.
134 Even if the Full Bench were to make findings of contraventions of the Senior Commissioner’s orders as proposed by the Registrar, Ms Reah and the ANF submitted that the approach adopted in Coles Supermarkets is still applicable, that is, to adopt the course of conduct approach, despite there being a large number of individual contraventions.
Characterisation - consideration
135 As noted above, both parties made reference to the decision of the Full Bench in Callan. In that case, which involved an appeal to the Full Bench from a decision of an Industrial Magistrate imposing penalties for the contravention of an award, the Full Bench was required to determine, from the statutory scheme in s 83 of the Act, whether it was open to the Full Bench to impose a penalty under s 83(4) for each and every individual contravention of an industrial instrument.
136 In the proceedings at first instance, the Industrial Magistrate found that based on admissions by the respondent, there had been underpayments of an employee of the respondent on 282 separate occasions, totalling some $31,396.94 over a twoyear period from 2015 to 2017. The Industrial Magistrate decided that the maximum penalty of $2,000 as it then was, on a construction of the relevant statutory provisions, applied to all of the 282 contraventions and a single penalty of $1,700 was imposed.
137 The Full Bench upheld the appeal and overturned the decision of the Industrial Magistrate. The Full Bench found on the evidence before the Court, that it was open to impose the maximum penalty for each and every contravention of the award. On this basis, the Full Bench reassessed the penalty for the total number of contraventions in the amount of $37,840, reduced that amount to $22,704, having regard to the course of conduct principle in determining the final penalty amount to be imposed, which has at its source, the ‘one transaction principle’ applied in criminal sentencing: Royer v The State of Western Australia [2009] WASCA 139 per Owen JA at [19] to [34].
138 The Full Bench stressed that the totality or ‘one transaction’ principle only applies at the second step in sentencing, after the penalty for each individual contravention or offence has been determined and provides no warrant to impose a single penalty for multiple contraventions, unless the relevant statutory provision enables this to occur: Callan at [60] and also citing Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113. It is to be noted that there is no equivalent of s 557(1) of the Fair Work Act 2009 (Cth), requiring multiple acts that contravene the FW Act to be regarded as a single contravention, in Part III of the Act dealing with enforcement.
139 Section 83 of the Act, dealing with the contravention or the failure to comply with the terms of an industrial instrument, was, at the time that Callan was decided, in the following terms:
83. Enforcing awards etc.
(1) Subject to this Act, where a person contravenes or fails to comply with a provision of an instrument to which this section applies any of the following may apply in the prescribed manner to an industrial magistrate’s court for the enforcement of the provision —
(a) the Registrar or a deputy registrar;
(b) an industrial inspector;
(c) in the case of an award or industrial agreement, any organisation or association named as a party to it;
(d) in the case of an award, industrial agreement or order, an employer bound by it;
(e) any person on his or her own behalf who is a party to the instrument or to whom it applies;
(f) if an employee under an employeremployee agreement is a represented person, a representative acting on his or her behalf.
(2) In this section —
instrument to which this section applies means —
(a) an award; and
(b) an industrial agreement; and
(c) an employeremployee agreement; and
(d) an order made by the Commission, other than an order made under section 23A, 32, 44(6) or 66.
(3) An application for the enforcement of an instrument to which this section applies shall not be made otherwise than under subsection (1).
(4) On the hearing of an application under subsection (1) the industrial magistrate’s court may, by order —
(a) if the contravention or failure to comply is proved —
(i) issue a caution; or
(ii) impose such penalty as the industrial magistrate’s court thinks just but not exceeding $2 000 in the case of an employer, organisation or association and $500 in any other case;
or
(b) dismiss the application.
(5) If a contravention or failure to comply with a provision of an instrument to which this section applies is proved against a person as mentioned in subsection (4) the industrial magistrate’s court may, in addition to imposing a penalty under that subsection, make an order against the person for the purpose of preventing any further contravention or failure to comply with the provision.
(6) An order under subsection (5) —
(a) may be made subject to any terms and conditions the court thinks appropriate; and
(b) may be revoked at any time.
(7) An interim order may be made under subsection (5) pending final determination of an application under subsection (1).
(8) A person shall comply with an order made against him or her under subsection (5).
Penalty: $5 000 and a daily penalty of $500.
[Section 83 inserted: No. 20 of 2002 s. 155(1).]
140 As a result of amendments to the Act effective from June 2022, whilst some of the language in s 83 has been altered, the penalty provisions in s 83(4) are expressed in the same terms.
141 I have set out the terms of s 84A earlier in these reasons. Importantly, both s 83 and s 84A of the Act are concerned with the subject matter of a relevant person contravening or failing to comply with the relevant instruments set out in s 83(1) (now read with s 7 of the Act) and 84A(1). Relevant persons, in either case, may make an application ‘for the enforcement of the provision’, in the case of s 83(1), or of ‘that provision, order, direction, declaration or section’, in the case of s 84A(1).
142 On the hearing of such an application, the Industrial Magistrates Court in the case of proceedings under s 83, and the Full Bench in the case of proceedings under s 84A, may, ‘if the contravention is proved’ (s 83(4)) or ‘if the contravention or failure to comply is proved’ (s 84A(5)(a)) grant a remedy (emphasis added). The focus of both s 83(4) as it then was as considered in Callan, and as it is now, and in s 84A(5)(a), as a matter of ordinary meaning, is on ‘a singular, identifiable, individual contravention or failure to comply. The definite article ‘the’ in this context is indicative of specificity and particularly [sic], and there is specificity in the following words ‘contravention’ and ‘failure’. Neither of those words are expressed other than in the singular sense’: Callan at [45].
143 The Full Bench in Callan at [46] to [48] went on to say:
46 No support for an alternative, unnatural meaning is properly gained by reference to the words ‘contravenes or fails’ in s 83(1). Subsection 83(4) uses the nouns ‘contravention’ and ‘failure’. Subsection 83(1) uses the respective verbs ‘contravenes’ and ‘fails.’ There is no room grammatically or conceptually for reading this verb form of the present simple verb ‘contravene’, as excluding a single contravention or necessarily referencing multiple contraventions. By way of illustration, it is both correct to say that by her one contravention she contravenes the section and to say that by her ten contraventions she contravenes the section. Accordingly, s 83(1) is not context that supports the learned Industrial Magistrate’s limiting construction of s 83(4).
47 Further, s 83(1), being the definite or specific condition which the definite article in s 83(4) references, speaks of ‘a provision’ of ‘an instrument’ indicating a single contravention is contemplated.
48 The purpose of the enforcement regime of the IR Act, as discussed above, supports the words being their natural and ordinary meaning. In particular, it is supported by the object of promoting the public interest in compliance with industrial instruments. It would be contrary to that object if multiple instances of non-compliance were penalised as a single non-compliance.
144 The language used in the Act, and in ss 83 and 84A, should, unless the contrary intention is indicated, be construed in its ordinary and natural sense: Australian Leisure and Hospitality Group v Director of Liquor Licensing [2012] WASC 463 per Hall J at [22]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 per Edelman J at [94]. Further, whilst rebuttable, the presumption is that where the drafter of legislation uses the same word or phrase in a statute, the same meaning is intended: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 per Hodges J at 452 (all referred to and discussed in D Pearce Statutory Interpretation in Australia 9th Edition at [4.6] to [4.11]).
145 On this basis, the approach to the construction of s 83(1) of the Act, adopted by the Full Bench in Callan, should also be adopted in relation to s 84A(5) of the Act. As with s 83, the language of ss 84A(1), (2), (3) and (4), when read with (5)(a), speaks to a ‘singular, identifiable, individual contravention or failure to comply’: Callan at [45]. Each individual contravention of an order attracts the maximum penalty. This applies to each of the separately identifiable contraventions or failures to comply with the Senior Commissioner’s orders, as articulated in the Registrar’s application in FBM 2 of 2022.
146 The consequences of this approach will depend on the terms of the relevant order of the Commission, which is sought to be enforced. In the case of the Senior Commissioner’s orders made on 23 November 2022, they were detailed and specific. There was not, for example, a single order that the ANF take all reasonable steps to cease or refrain from taking industrial action. There were multiple orders and each order proscribed separately identified conduct and behaviour by the ANF, through its officers, employees and members. The No Strike Order, set out above, defined ‘Specified industrial action’, as ‘industrial action on and from 25 November 2022 comprising work stoppages, being absent from duty, or walking off the job, or closing hospital beds’.
147 The action of an employee being ‘absent from duty’ or ‘walking off the job’, involved an individual action of an employee. Each such action of an employee, contrary to the terms of the order, was a clear contravention of its terms. As was submitted by the Registrar, whilst the actions of the employees, as members of the ANF, were, as is admitted by the ANF, attributable to it, this does not alter the character of the contravention to be singular in nature, whether that attribution be direct or vicarious: Secretary of the Ministry of Health v NSW Nurses and Midwives Association [2022] NSWSC 1178 at [626]-[633]; [656]-[657]; Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 at [87].
148 Similarly, the No Encouragement Order, prohibited the ANF, by its officers, employees, agents and members, to ‘encourage, in any way’ employees to engage in specified industrial action, ‘including by paying or offering to pay employees who are absent from duty without authorisation or walk off the job’. Each offer to pay and the payment of the ‘strike pay subsidy’ by the ANF, to each member, who walked off the job, or who was absent from duty, on the same basis as the No Strike Order, constituted an individual contravention. Each request for payment, and each payment made by the ANF to a member, was a single transaction, which transactions were expressly and unequivocally prohibited by the No Encouragement Order.
149 Likewise, was the arrangement put in place by the ANF for bus transport for members to attend the Parliament House rally on 25 November 2022. The actions of members of the ANF, registering for bus transport on 25 November 2022, was an individual, and conscious act taken by each member, as part of the process established by the ANF, through its ‘iFolio’ system, to give effect to, and to facilitate and to ‘encourage’ each member to ‘walk off the job or fail to report for duty’, in clear contravention of the No Encouragement Order. This conduct cannot be reasonably regarded in any other way.
150 In light of my conclusions as to the construction of s 84A of the Act, and the adoption of the approach taken by the Full Bench in Callan, the contentions of the Registrar are to be preferred. I accept the Registrar’s submissions at pars [19] to [28] of her written submissions, as to the approach to agreed penalties, as summarised above.
151 Importantly, such an approach enables the Full Bench to determine the outer limits of the maximum penalties that may be applicable in any particular case, before weighing in the balance both the course of conduct and totality principles, to establish an appropriate, final penalty amount. This process must have regard of course, to the factors in s 84A(4)(a) of the Act, as discussed and applied in SSTU, and in light of my additional observations set out above.
152 I now turn to consider whether, in light of the above principles and findings of fact, and having regard to all of the circumstances of this case, the Full Bench should regard the agreed penalty as an appropriate outcome.
Agreed penalty - consideration
Ms Reah
153 The parties agree that the penalty of $10,000, which is the maximum penalty, would be appropriate in the case of the application against Ms Reah. I agree. As the leader of the ANF and its principal spokesperson during the course of the dispute leading to the State-wide strike, she was at all material times, the public face of the ANF campaign. Ms Reah’s failure to comply with the summons to the s 44 conference before the Senior Commissioner on 25 November 2022, was an act of deliberate non-compliance by Ms Reah. Despite the summons issued to attend the compulsory conference, Ms Reah, very publicly, indicated she would not comply with the summons and attend the compulsory conference. This defiance was played out in a number of media interviews on and around that time. Given the nature of this defiance, a specific and general deterrent needs to be at a significantly high level to make it clear that such acts of non-compliance will not be tolerated by the Commission.
154 Given the undertaking as to future conduct, set out above, it is certainly hoped that Ms Reah has learned her lesson, and that there will not be any repeat of the behaviour she engaged in during the course of this very public industrial dispute. Both parties agreed that the penalty ought to be paid personally by Ms Reah. I am persuaded that this would be appropriate, and that the Full Bench has the power to order that she does so, having regard to s 84A(7) of the Act.
ANF
155 In relation to the ANF, assessing whether the Full Bench should find the agreed penalty as appropriate requires consideration of the s 84A(4)(a) factors as discussed and applied in SSTU, and as adopted for present purposes in these proceedings.
156 I am satisfied on the evidence, and having regard to the approach to characterisation which I prefer, that the ANF committed the total number of contraventions of the orders made by the Senior Commissioner on 18 November and 23 November 2022, as outlined in the above schedule of Applicant’s Breakdown of Agreed Penalty. Applying the maximum penalty of $10,000 prescribed by s 84A(5)(a)(ii) of the Act, to all of the contraventions would lead to a financial penalty well beyond what the Commission would impose and would be manifestly crushing and oppressive.
157 In terms of assessing the seriousness of the ANF’s conduct, it was not only contumacious, but in my view, it was at the most extreme end of the seriousness criterion. The genesis of the ANF’s conduct lay in mid-July 2022, with the commencement of negotiations for a replacement industrial agreement with the Department of Health. This is in and of itself, entirely unexceptional. Such negotiations take place as a regular feature of the State industrial relations system. Between mid-July and early October 2022, negotiations continued. By early November 2022, the Department had made two offers to the ANF, which offers included nurse to patient ratios, a claim strongly pursued by the ANF, and wage increases consistent with the State Government’s Wages Policy.
158 Importantly, on 12 October 2022, the Council of the ANF met and passed resolutions, one of which was to authorise a campaign of escalating industrial action, in support of the ANF claims. This was to culminate in strike action between 24 and 30 November 2022. The die was then cast. As subsequent events show, this predetermined and calculated course, was not going to be deviated from, regardless of possible sources of intervention. This, most appositely, included any intervention by this Commission.
159 I need not repeat what occurred subsequently and the proceedings before the Senior Commissioner on 18 and 23 November 2022. What is of most seriousness, is the public defiance of the Commission and the denunciation of the Commission’s orders. The public nature of the calculated and wilful course of conduct by the ANF, which course of conduct was prosecuted vigorously through the media, including print, digital, radio and television and various social media outlets, made the conduct manifestly worse.
160 From the material before the Full Bench, the tone of the ANF communications in the media, largely through Ms Reah as its principal spokesperson, was the same tone as that used in her letter to the Senior Commissioner, dated 22 November 2022, set out earlier in these reasons, that being belligerent non-compliance.
161 Not only did the Council of the ANF, the highest decision making organ of the union, set the course on 12 October 2022, but it reaffirmed it on 18 November 2022, the date of the Senior Commissioner’s first order. On that day, as set out in the SOAF, the Council met and resolved, unanimously, to ignore the Senior Commissioner’s Defer Ballot Order. This was affirmed between 18 and 23 November 2022, by Ms Reah in numerous media statements and also in internal communications to members of the ANF.
162 As to the ignoring of the Senior Commissioner’s No Strike Order made on 23 November 2022, again the Council, for a third time, convened urgently early in the morning on 24 November 2022, the day before the State-wide strike, and affirmed its commitment to proceeding with the unlawful industrial action.
163 Most contumaciously, on 3 December 2022, after the State-wide strike, the Council of the ANF again convened and resolved to pay any fines arising from the contravention of the Senior Commissioner’s orders, and, in plain defiance of the No Encouragement Order, resolved to pay the strike pay subsidy to affected members. It is clear from the former act alone, that the Council of the ANF saw the maximum penalty of $10,000 for a contravention of the Senior Commissioner’s orders, as a cost of doing business. In my view, the offer of and payment of the strike pay subsidy to ANF members should be seen in the same light. This brings into sharp focus the need for both specific and general deterrence.
164 The role of the Council, as the ultimate decision making body in the ANF, in repeatedly endorsing the campaign of non-compliance, and making a decision to breach the No Encouragement Order, is a significantly aggravating factor. This is analogous with corporations and consumer protection civil penalty cases which, in setting penalties, take into account the role of senior management of a corporation.
165 In light of my findings on the evidence, the impact of the State-wide strike on the State health system was very significant. Additionally, in making the orders that she did on 23 November 2022, the Senior Commissioner had evidence before her, set out in some detail in the recitals to the orders, as to the impact the strike would have on the State health system, and the public. She also expressed her concerns about the short period of notice given by the ANF in taking the industrial action, and its lack of preparedness in mitigating the risks of the action. These issues were demonstrated clearly in Dr Codreanu’s evidence before the Full Bench. The widespread cancellation of elective surgeries, including some Category 1 – Urgent elective surgeries, and multiple other Category 2 and Category 3 elective surgeries, along with hundreds of outpatient appointments, is a serious consequence.
166 That the State health system responded to the State-wide strike, by triggering the Department of Health disaster response mechanism, in and of itself, speaks volumes as to the seriousness criterion in this case. As I have already observed, the fact that those engaged in crisis management of the health system avoided the disastrous consequences of the strike, is a credit to those involved.
167 As to the nature of the ANF as a registered organisation, it is a large and very well resourced organisation. It has been registered under the Act, and its predecessors, since 1924. It has a membership of some 35,000 members, 19,000 of whom are employed in the State health system. The ANF has its own legal services division, providing a range of legal services to members. It is a party to awards and industrial agreements of this Commission and has been so for many years. Given this, it ought to have been well aware of its obligations as a registered organisation under the Act. One would trust that this is emphatically understood now.
168 It is important to observe that a conciliation and arbitration system, as exists in this State, is characterised by the rule of law and not the law of the jungle. If registered organisations under the Act, from which registration they reap all of the benefits and privileges that they enjoy, thumb their nose at the system from which they derive their status, standing and privileges, then they risk having those attributes taken away.
169 As to the undertakings criterion, I have set out earlier in these reasons the initial, and the final undertakings that Ms Reah and the ANF have given to the Full Bench. I have already noted that the undertakings given are of considerable weight. They are not, as opposed to the SSTU case, proffered as an appropriate outcome, under s 84A(5)(a)(i) of the Act. I regard both undertakings as evidence of lessons learned by both Ms Reah and the ANF, as a result of these proceedings.
170 As to mitigating circumstances, it is to be acknowledged that in their responses, both Ms Reah and the ANF largely admitted the allegations in the Registrar’s very detailed particulars of claim. The SOAF reflects this. This is deserving of due recognition by the Full Bench, of their preparedness to facilitate the course of justice and the avoidance of a lengthy, contested hearing.
171 It is the case that there has been no prior s 84A enforcement action against the ANF, that has been the subject of a determination by the Full Bench. The ANF has been the subject of orders to cease industrial action in 2013: Minister for Health v The Australian Nursing Federation, Industrial Union of Workers Perth [2013] WAIRC 00089; (2013) 93 WAIG 274; Minister for Health v The Australian Nursing Federation, Industrial Union of Workers Perth [2013] WAIRC 00100; (2013) 93 WAIG 276. In these respects, the Registrar submitted that the ANF had not been a ‘good corporate citizen’, in the sense that it had been the subject of orders of the Commission in response to industrial action taken by its members. I take this into account, although at the margin, for the purposes of assessing the appropriateness of the agreed penalty as examples, albeit not recent, where intervention by the Commission in the making of orders to stop industrial action by the ANF has been necessary.
172 I turn now, in light of these general observations, to the agreed penalty amount of $350,000. It is, as the parties submitted, a very substantial penalty in this jurisdiction. For it to be assessed by the Full Bench to be appropriate, it needs to reflect the seriousness of the multiple contraventions engaged in by the ANF, and it needs to be considered to be within an appropriate range of penalty outcomes. To recap what was said in Mobil Oil, it is for the court to determine an appropriate penalty. This process is not an exact science, and, within a permissible range, one figure may not necessarily be more appropriate than another. It is also not useful for the court to conclude whether any agreed penalty would have been arrived at independently by the court.
173 I have accepted the approach adopted by the Registrar concerning the characterisation issue and why, in assessing penalty, it is appropriate in this case. The approach of the ANF, to apportion equally, according to the 39 categories of conduct set out in the amended Schedule 1, carries the difficulty that near the maximum amount is allocated to each category. This gives little room for the Full Bench to adjust the penalty amount if it were considered appropriate to do so. For example, as I shall discuss shortly, various categories of contraventions may be more serious than others, and which should be reflected in the penalty amounts apportioned for each.
174 In this case, unlike in Coles Supermarkets, from both the SOAF and the evidence led in the proceedings, a conclusion has been able to be reached on balance, as to the total contraventions for each of the Senior Commissioner’s orders not complied with. The breakdown advanced by the Registrar strikes a balance between those categories of contraventions where there are a large number of individual contraventions, such as for C-1 to C-1,808; E-14 and E-15, compared to the rest. It would be plainly punishing and oppressive to impose the maximum penalties for each of these three categories. I consider that some resort to the course of conduct principle is helpful in this analysis.
175 In the case of contraventions C-1 to C-1,808, the individual contraventions of the No Strike Order, can be viewed broadly as a single course of conduct, involving members of the ANF walking off the job or being absent from duty, and taking ‘specified industrial action’, as defined in the order, on 25 November 2022. Looking at the individual contraventions globally in this way, leads to the figure of $200,000. Taken as a proportion of the agreed figure of $350,000, this reflects 57% of the total, which I think is appropriate, as it can be seen as the more serious action. The other categories of contraventions, whilst still serious contraventions, were more in the nature of facilitating the strike action that took place, or those concerned with circumstances surrounding it, and following it.
176 In this respect, E-14, dealing with the provision of bus services, was facilitative. This compares to E-15, the contravention involving payment of the strike pay subsidy, which involved the breach of an express provision of the No Encouragement Order. These contraventions in E-15 also took place over an extended period of time on the affidavit evidence of Mr Olson, well after the day of the strike, over several months, where arrangements were put in place to process payments. Each step involved a conscious decision making process, in considering and approving a request for payment, and depositing the funds in the member’s bank account, flouting the No Encouragement Order. It is only appropriate looked at in this way, that the total penalty amount be considerably higher than for E-14. The other contraventions, both in terms of individual apportionment, per contravention, and the allocation against the total figure, are similar, ranging from approximately $1,600 to $2,500, and $10,000 to $25,000, respectively.
177 The figure for F-1 to F-5, the public commentary category, while lesser in number, is appropriately higher in my view, given what I have said and found above, regarding the very public way the ANF breached the orders. As to A-1, the breach of the Defer Ballot Order, there was only one contravention, but it was a serious one. A figure near the maximum is appropriate.
Conclusions
178 Taking all of this into account, and stepping back to look at the total penalty to be imposed by the Full Bench, whilst in some respects, given all of the circumstances of this case, it may be seen to be at the lower end of the range, I consider the agreed penalty to be a just and appropriate outcome. It reflects the serious nature of the conduct of the ANF as a whole, which conduct occurred over a considerable period of time. I will make a declaration that Ms Reah failed to comply with a summons issued under s 44(3) of the Act on 24 November 2022, and that she personally pay a penalty of $10,000 to the State, within 21 days. I will make a declaration that the ANF contravened, or failed to comply with, the orders of the Senior Commissioner of 18 November 2022 and 23 November 2022, and that it pay a penalty of $350,000 to the State, within 21 days. Minutes of proposed declarations and orders now issue.
EMMANUEL C:
179 I respectfully agree with the Chief Commissioner’s summary of background facts, description of the conduct, statement of the legal principles and authorities to be applied, findings of fact and conclusion about the characterisation issue. Broadly, I agree with the Chief Commissioner’s reasons, other than in relation to the penalty amount that the ANF should be ordered to pay.
180 In essence, I consider that a penalty of $350,000 would not be a just and appropriate outcome. That penalty is insufficient to meet the requirements of specific and general deterrence in this matter. I am concerned that the resolution proposed by the parties reflects an outcome that the contravening party may simply see as an acceptable cost of doing business.
181 Without being overly mathematical, I consider that the proposed penalties in respect of at least two categories, being E-1 to E-12 (Breach of No Encouragement Order through communications to ANF members) and E-15 (Breach of No Encouragement Order through payment of strike pay subsidies) referred to at [53] and [174] - [176] above, fall below the appropriate range of penalties for the particular conduct in the circumstances of this matter. In addition, whether by calculating the categories together or looking at the aggregate of the total penalties, I consider that an overall penalty of $350,000 falls short of what is needed for specific and general deterrence.
182 The parties have used a mix of tools of analysis, including the course of conduct principle and totality principle, to present a final outcome to the Commission. The use of those tools is appropriate, but the way the parties have applied the tools in this instance has resulted in an excessive discount, taking the penalty below the appropriate range of penalties. That is particularly so given:
(a) the seriousness of the ANF’s conduct, which involved an extensive number of breaches, took place over a considerable period of time and had a major impact on the State health system;
(b) the overall contumacious nature of the ANF’s conduct, which was planned, deliberate, wilful, public and defiant; and
(c) the ANF’s repeated public statements that it would defy the Commission’s orders.
183 While the calculation of an appropriate penalty is not an exact science, it nonetheless must be sufficient to achieve the requirement of deterrence. In my view a penalty of $350,000 is below the appropriate range.
184 For these reasons, if I were to impose a penalty described by the Chief Commissioner at [178] as being at the lower end of the range, I would order that the ANF pay a penalty of $480,000.
185 I otherwise agree with the reasons, declarations and orders proposed by the Chief Commissioner.
KUCERA C:
186 I respectfully agree with the Chief Commissioner’s reasons in this matter. In addition, I have in the paragraphs that follow, made some additional observations that are of relevance to the penalty the Full Bench has imposed.
187 As the Chief Commissioner’s reasons explain, this matter involves an application to a Full Bench for the enforcement of orders Senior Commissioner Cosentino made on 18 and 23 November 2022 (orders).
188 The orders were made in the context of the current round of bargaining for a replacement enterprise agreement (bargaining) between the Australian Nursing Federation, Industrial Union of Workers (ANF) and the West Australian Department of Health (Department of Health).
189 In Western Australia, there are rules under the Industrial Relations Act 1979 Act that apply to parties involved in bargaining for industrial agreements which they need to follow: The Registrar of the Western Australian Industrial Relations Commission v The State School Teachers Union of WA (Incorporated) [2008] 88 WAIG 333 (SSTU) Beech CC at [155]. This includes the requirement to bargain in good faith under s 42B of the Act.
190 To ensure these rules are followed, the Commission, in its capacity as an independent industrial umpire, is empowered under s 44 of the Act to make orders and give such directions as may be necessary, to prevent the deterioration of industrial relations during a bargaining dispute.
191 When exercising these powers, the Commission can make orders requiring a negotiating party to do something or to refrain from doing a particular thing. Depending on the circumstances of a particular a case, orders the Commission can make include those requiring a ballot to gauge employee support for a proposed an industrial agreement and the timing of that ballot.
192 In disputes over bargaining, the Commission retains the power to decide, whether particular industrial action should be permitted to occur. When deciding this, the Commission must have regard to the public interest. The Commission may, having regard to the interests of the community who may be affected, need to issue orders to stop or prevent parties from taking industrial action: SSTU per Beech CC at [155].
193 Once the Commission (as in this case) determines that it is in the public interest to issue orders, those orders must be complied with. It is for this reason there are financial and other consequences for parties who refuse to comply, which the Registrar may pursue through enforcement proceedings to a Full Bench of the Commission under s 84A of the Act.
194 In such proceedings the Full Bench, when deciding the penalty to be imposed for a breach of the Commission’s orders, under s 84A of the Act is required to consider the seriousness of the conduct in issue, including whether it was deliberate and intended, the circumstances in which the order was made and the effect of the contravention upon the community: SSTU per Ritter AP at [83].
195 Deterrence, both specific and general, is a relevant consideration when determining penalty: Australian Securities and Investments Commission v Chemeq [2006] FCA 936 per French J at [90].
196 Specific or personal deterrence is the principle that requires the Full Bench to impose a penalty to deter parties in breach of the Commission’s orders from repeating their conduct: Ponzio v Caelli Constructions Pty Ltd [2007] FCAFC 65 (Ponzio) per Lander J at [93].
197 General deterrence is the principle that requires the Full Bench to impose a penalty to warn others of the consequences if they choose not to play by the rules. It is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108, also see Ponzio per Lander J at [93].
198 With general deterrence, the penalty should be of a kind that would be likely to act as a deterrent in preventing similar contraventions by like-minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others: Ponzio per Lander J at [93].
199 When setting a civil penalty, it must be fixed with a view to ensuring it will not be regarded by the offender or others as an acceptable cost of doing business: ABCC v Pattison and Anor [2022] HCA 13; ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640 at 659 [66].
200 The penalty to be fixed by the Full Bench is directed at maintaining the integrity of the industrial relations system, which means there will not only be consequences for industrial organisations that do not comply with the Commission’s orders, but there will equally be financial and other consequences for employers that do the same.
Lead up to the nurses’ strike
201 When weighing up the seriousness of the breach of the Commission’s orders, it is important to look to the circumstances in which the orders were made and the conduct that followed. In relation to this, bargaining between the ANF and the Department of Health, commenced in or around mid-July 2022.
202 As the bargaining continued, the Council of the ANF met on 12 October 2022 and endorsed a campaign of escalating industrial action in support of its claims, which included rolling stoppages and a strike to be held between 24 and 30 November 2022 (industrial action).
203 Following this meeting, members of the ANF negotiating team, which included its Secretary, Janet Reah, and its Chief Executive Officer, Mark Olson, participated in several conferences with the Department of Health which were held at the Commission.
204 Ms Reah, who is Mr Olson’s successor is relatively new to the role of Secretary. She was initially appointed to the position to fill the casual vacancy that was created after Mr Olson resigned from the position of Secretary in July 2022. Ms Reah was elected to the position on 17 October 2022.
205 Mr Olson held office as Secretary for more than 23 years. Over that time, Mr Olson was involved in several negotiations for enterprise agreements between the ANF and the Department of Health. Following his resignation, Mr Olson was appointed to the position of ‘Chief Executive Officer’ (CEO).
ANF accepts the offer in-principle
206 On 15 November 2022, the Senior Commissioner held a compulsory conference between the ANF and the Department of Health. During this conference, the Department of Health made a conditional wages and conditions offer (offer).
207 The offer was made on the condition the ANF would cease its campaign of rolling stoppages which were by this date, scheduled to commence in public hospitals in the Perth metropolitan area, on 16 November 2022.
208 The ANF accepted the offer in principle and agreed the rolling stoppages would not take place. The ANF also agreed it would put the offer to its members for a vote.
209 Later on 15 November 2022, Ms Reah and Mr Olson attended a meeting at the Fiona Stanley Hospital (FSH). It is reasonable to conclude that whatever confidence Ms Reah and Mr Olson might have had, that the ANF’s members would support the offer, quickly evaporated at this meeting.
210 Following the meeting at FSH, the ANF’s position publicly shifted, from accepting the offer to actively opposing it. The ANF instead decided to revert to the course the ANF Council decided to take on 12 October 2022.
211 To this end the ANF opened an online poll to run from 18 to 22 November 2022. Ms Reah announced that if members voted the offer down, the next step would be a one-day strike within a week of the vote closing.
212 The evidence establishes that although Mr Olson in his capacity as CEO, who took an active part in negotiations for the ANF, both as a negotiator and spokesperson, stepped back from bargaining after the meeting at FSH, he nevertheless remained involved in organising the industrial action the subject of this application.
213 I make this observation because although Ms Reah may have been relatively new to the position of Secretary, she was not surrounded by novices.
214 The ANF is a large well-resourced organisation with experienced staff and officials, which at the time, included Mr Olson. Inexperience provided no excuse for the conduct that followed. Ms Reah and those around her, ought to have done more to ensure the ANF as an organisation complied with its obligations under the Act.
Defer Ballot and No Further Claim Orders
215 In response to the ANF’s shift in position on the offer, the Senior Commissioner at the request of the Department of Health convened a further compulsory conference on 18 November 2022. At the conclusion of this conference the Senior Commissioner issued the orders, the terms of which the Chief Commissioner set out in his reasons and defined as the ‘Defer Ballot’ and ‘No Further Claims Orders’.
216 The Defer Ballot and No Further Claims Orders were by no means onerous or extraordinary. In the context of bargaining for an enterprise agreement and in circumstances where the ANF had accepted the offer in principle, it was reasonable for the Department of Health and the Commission to gauge from a ballot of the ANF’s members whether they accepted the offer or not.
217 Having accepted the offer, the ANF, as the representative of its members and pursuant to its obligations to bargain in good faith, was at the very least required to put the offer, in the terms it had agreed to accept in principle, to its members for a vote. However, after the issuance of the Defer Ballot and No Further Claims Orders, the ANF was required to hold a ballot in the manner the Senior Commissioner had ordered.
218 It is noteworthy the Senior Commissioner at that time, had not put a stop to the ANF’s members plans to take industrial action. All she was directing the ANF and its members to do was to participate in a ballot, albeit to be concluded on a date a week or so after the industrial action it had foreshadowed, was supposed to begin.
219 Whilst that might have necessitated a deferral of industrial action some ANF members might have been keen to commence, a ballot result free from influence one way or another, may have given the ANF and its members more strength to their arm in bargaining.
220 The result might have also brought the dispute between the ANF and the Department of Health closer to a resolution.
Defer Ballot Order defied
221 The ANF made no effort to comply with the Defer Ballot and No Further Claims orders. Furthermore, and as the Chief Commissioner found, the ANF actively and deliberately, resolved to and defied the Defer Ballot and No Further Claims Orders, doing so in a very public way.
222 It is regrettable the ANF failed to inform its members of the content of the Defer Ballot and No Further Claims orders or to provide them with a copy. If the ANF had done so, perhaps its members may have understood from the recitals, the reasons why the Senior Commissioner made them and why she had directed the ANF to defer its ballot.
223 It is reasonable to conclude from its response to the Defer Ballot and No Further Claims Orders, that the ANF had decided to escalate the dispute. As I have indicated, the ANF could have deferred its plans to take industrial action and complied with the Defer Ballot and No Further Claims Orders. Instead, it chose not to do so.
Further orders issued
224 On the afternoon of 22 November 2022, Ms Reah released the results of the ANF’s Ballot. She then announced the ANF would be holding a State-wide strike on 25 November 2022, which was in line with the industrial action the ANF Council endorsed on 12 October 2022 (State-wide strike).
225 To encourage its members to take part in the State-wide strike, the ANF published a ‘Strike Guide’, offered a $150 strike pay subsidy to members participating in the strike (strike payment) and organised buses to make it easier for members to walk off the job and attend the rally at Parliament House (rally).
226 On 23 November 2022, the Senior Commissioner held a further compulsory conference, at which the Department of Health sought interim orders under s 44 of the Act to stop the State-wide strike. It is evident the Senior Commissioner concluded that unlike the rolling stoppages which the ANF called off when it accepted the offer, the potential risks the planned State-wide strike presented to the provision of public health care in WA, could not be adequately managed or mitigated.
227 It is for this reason the Senior Commissioner issued orders on 23 November 2022 which are set out in the Chief Commissioner’s reasons and relevantly defined as the ‘No Strike Order’, the ‘Notice Order’, ‘No Encouragement Order’ and the ‘No Public Comment Order’.
228 The No Strike Order identified the industrial action the Senior Commissioner determined the ANF’s members could not take. The No Encouragement Order identified the conduct the ANF was not to engage in, to enable and encourage its members participation in the State-wide strike.
ANF further defies Commission orders
229 The inescapable findings regarding the ANF’s defiance of the No Strike Order, the Notice Order, No Encouragement Order, and the No Public Comment Order are provided in the Chief Commissioner’s reasons.
230 His reasons also set out the correspondence Ms Reah sent to the Senior Commissioner regarding her response to the orders. Ms Reah’s letter threw caution to the wind. As an example of blatant non-compliance, it outstripped the union’s resolution in SSTU which Beech CC described at [151] as ‘difficult to find a more blatant example of a union defying a Commission order’. Ms Reah’s letter was by far, more extreme.
231 The sentiment expressed in Ms Reah’s letter was not an aberration, as it was subsequently supported and her conduct endorsed, by way of resolutions the ANF Council carried on 24 November 2022, referred to in paragraph 74 of the Statement of Agreed Facts, to support the State-wide strike.
232 In breach of the No Encouragement Order, the ANF organised buses for members participating in the State-wide strike to attend the rally. It paid the strike payment to 939 members who participated in the State-wide strike.
233 With the expenditure it outlaid on providing buses and the payment of $140,000 in strike payments, it is clear the ANF decided to run the gauntlet of the potential consequences it could face for contravening the Commission’s orders.
234 Put another way, it is reasonable to conclude the ANF took the view that any penalties it might face for its breach of the orders, were a cost of doing business.
Agreed penalty proposal
235 During the proceedings, the Registrar, and the ANF reached agreement on a proposed penalty to be considered by the Full Bench in the sum of $350,000.
236 In his reasons the Chief Commissioner included the table provided by the Registrar which grouped the ANF’s breaches of the orders into some nine categories. The Registrar’s table also suggested the penalty that should be imposed for each category by reference to course of conduct and totality principles, as well as the other criteria for assessing the seriousness of the contraventions.
237 The approach of the ANF in determining how the agreed penalty should be apportioned was to divide the agreed total penalty of $350,000 by reference to the 39 categories that were contained in Schedule 1 of the Registrar’s particulars of claim (Schedule 1), resulting in a penalty of $8,974.35 per category of contravention.
238 The ANF submitted this would mean that for each of the 39 categories of breaches described in Schedule 1, the ANF would be fined an amount close to the upper end of the maximum penalty of $10,000 under the Act, for each category of breach.
Number and characterisation of breaches
239 I agree with the Chief Commissioner’s assessment of the number of breaches the ANF may be said to have engaged in, and how those breaches are to be characterised. On this, I also accept the Registrar’s table setting out the number and type of breaches engaged in.
240 To assess the seriousness of the breaches of the Commission’s orders, it was necessary for the Registrar to go through the exhaustive process of identifying and quantifying the number of breaches of the orders. It was also necessary for the purposes of setting a range of potential penalties, even if the application of the totality principle meant the Full Bench would never have imposed a potential maximum penalty for each individual breach.
241 Having regard to the way in which the orders were drafted, the manner of and number of contraventions the ANF engaged in, the Chief Commissioner’s conclusion the 3,590 individual contraventions which the Registrar particularised, were each capable of constituting a single contravention for which the ANF was potentially liable for multiple penalties is unavoidable.
242 I similarly do not accept the ANF’s submission the decision in Callan v Smith (2021) 101 WAIG 1155 (Callan) has no application in this case. Whilst I understand the ANF’s submission that ascertaining the number of individual contraventions in cases involving award or agreement enforcement claims may not be as difficult as those where breaches of the Commission’s orders to prevent industrial action are alleged, the number of contraventions in this matter were ultimately able to be nailed down, identified and agreed upon with some clarity.
243 One example of a category of contraventions to which Callan is particularly applicable is in respect of the strike payments the ANF admitted it paid to 939 of its members, who took part in the State-wide strike. The strike payments were referred to in paragraphs [53], and [174] - [176] of the Chief Commissioner’s reasons.
244 Like an underpayment of wages claim where an employer commits multiple contraventions of the same type on each occasion an underpayment occurs, the ANF breached the No Encouragement Order each time it decided a member was eligible to receive and paid the strike payment.
245 As the Chief Commissioner found, this conduct took place over an extended period of time, well after the day of the State-wide strike. This level of non-compliance was not a one-off, it involved a series of distinct and separate intentional decisions to breach an order of the Commission, each time a strike payment was made.
246 Such conduct, as it would be treated in an underpayment of wages claim, is serious and as in Callan, would not be treated as a single contravention, even if it was a part of a continuing course of conduct. It would also attract a higher overall penalty.
Significant disruption to the public health service
247 One of the matters to be considered when weighing the seriousness of the contravention under s 84A(4) of the Act is impact on the public and the other party to the industrial dispute: SSTU per Ritter AP at [83].
248 As the Senior Commissioner anticipated prior to the issuance of the orders, the impact of the State-wide strike on the public health system was significant. The cancellation of elective surgeries and outpatient appointments is a serious consequence, the effects of which are doubtless still being felt by patients and within the public health system.
249 As aggrieved as nurses may have been, it is critical those members of the community who rely upon the public health system are not suddenly, or without reasonable warning, left in the lurch. It is therefore important that when determining a penalty, these consequences are discouraged and are not repeated.
Penalty and undertakings
250 In dealing with an application under s 84A of the Act, which includes making an assessment as to penalty, the Full Bench must have regard to any undertakings that may be given as to future conduct: SSTU per Beech CC at [162] – [163].
251 As the Chief Commissioner observed, the ANF had two attempts at providing undertakings regarding its future conduct, the most recent of which came after the proceedings were adjourned.
252 The provision of an undertaking can be mitigatory in that it is indicative of contrition and the respondent having ‘learned its lesson’: SSTU per Ritter AP [133].
253 It is my view that without the most recent undertaking provided by the ANF, the Full Bench would have been left with no option but to impose a penalty higher than that which the parties had agreed upon.
254 This is because the ANF had not expressed to the Commission any remorse or contrition for its conduct and appeared to have no regrets it had breached the orders. Such conduct is the hallmark of a party that views the imposition of fines as an acceptable cost of doing business, which in the context of determining civil penalty proceedings, attracts stiffer fines.
255 The purpose of such fines is to compel future compliance. If undertakings in combination with a pecuniary penalty can secure a similar result, then it is relevant to have regard to those undertakings when setting penalties.
256 Having received the ANF’s most recent undertaking, to which I attach significant weight, I agree with the Chief Commissioner the agreed penalty is a just and appropriate outcome in the circumstances of this case.
257 In combination with what is a substantial financial penalty, the ANF is by its undertaking, on notice there will be significant further consequences for any future non-compliance with the Commission’s orders.
258 I otherwise agree with the Chief Commissioner’s reasons, his declarations, and proposed orders.


ANNEXURE A
UPDATED SCHEDULE 1
Summary of alleged contraventions
Abbreviations used:
POC = Applicant’ s Particulars of Claim SAF = Statement of Agreed Facts
R = Respondents’ Response TAC = Witness statement of Tudor Adrian Codreanu
All admissions by the Respondents recorded below are subject to its arguments as to the validity of the 18 and 23 November Orders.
Table A: 18 November 2022 Order- Order 1 (No Ballot Order)
#
Date
Summary of contravention
Respondents’ position
References
A-1
18 to 22 November 2022
The ANF proceeded with survey of members, closing on 22 November 2022.
Admitted (R [12]).
SAF [40].
Table B: 18 November 2022 Order- Order 2 (No Further Claim Order)
#
Date
Summary of contravention
Respondents’ position
References
B-1
18 November 2022
Ms Reah gave an interview to 6PR Radio on 18 November 2022 regarding the deficiency of the Offer and the one-day strike to occur if the Offer Ballot result is negative.
Admitted (R [12]).
SAF [44].


B-2
19 November 2022
Ms Reah gave a statement to press on 19 November 2022 regarding continuing a campaign to get “the best possible outcome” for the ANF’s members.
Admitted (R [12]).
SAF [46].
B-3
20 November 2022
ANF Facebook post on 20 November 2022 regarding the ANF not accepting government wages policy and the “fight for a fair wage deal” not being over.
Admitted (R [12]).
SAF [49].
B-4
20 November 2022
ANF Instagram post on 20 November 2022 in same terms as contravention above.
Admitted (R [12]).
SAF [49].
B-5
20 November 2022
Ms Reah emailed all ANF members on 20 November 2022 in same terms as contravention above.
Admitted (R [12]).
SAF [49].

B-6
21 November 2022
Ms Reah gave an interview on 6PR Radio on 21 November 2022 explaining that the Offer was “not going to cut it”, and if it was rejected in the Offer Ballot, there would be a strike unless the government put “a 5% deal on the table”.
Admitted (R [12]).
SAF [51].
B-7
22 November 2022
Ms Reah announced the Offer Ballot result and that there would be industrial action in pursuit of pay rise at Fiona Stanley Hospital on 22 November 2022.
Admitted (R [12]).
SAF [57].
B-8
22 November 2022
ANF Facebook post on 22 November 2022 explaining the better offer sought by the ANF and stating that the government could stop the pending industrial action by agreeing to it.
Admitted (R [12]).
SAF [60].
B-9
22 November 2022
ANF Instagram post on 22 November 2022 in same terms as contravention above.
Admitted (R [12]).
SAF [60].

B-10
22 November 2022
Ms Reah emailed all ANF members on 22 November 2022 in same terms as contravention above.
Admitted (R [12]).
SAF [60].
B-11
25 November 2022
Ms Reah gave a speech at rally on 25 November 2022 referring to ANF members fighting for a 5% pay rise.
Admitted (R [12]).
SAF [96].
B-12
27 November 2022
ANF issued a media alert on 27 November 2022 which includes reference to the ANF seeking a 5% pay rise.
Admitted (R [12]).
SAF [100].
Table C: 23 November 2022 Order - Order 1 (No Strike Order)
#
Date
Summary of contravention
Respondents' position
References
C-1 to
C-1,808
25 November 2022
On 25 November 2022, 1,808 ANF members took industrial action by walking off the job or being absent from duty, the actions of each Member amounting to a separate contravention.
Partly admitted (R [14]). ANF only able to verify 930 at time of R.
ANF says this is one contravention, not 1,758 contraventions (or, presumably, not 1,808 separate contraventions as now alleged).
SAF [91].
TAC attachments TAC2 and TAC3.

Table D: 23 November 2022 Order- Order 2 (Notice Order)
#
Date
Summary of contravention
Respondents’ position
References
D-1
23 November 2022
The ANF failed to email the orders made on 23 November 2022 to its Members.
Admitted (R [15]).
SAF [75].
D-2
23 November 2022
The ANF failed to publish the orders made on 23 November 2022 on its website.
Admitted (R [15]).
SAF [75].
D-3
23 November 2022
The ANF failed to publish the orders made on 23 November 2022 on its Facebook page.
Admitted (R [15]).
SAF [75].
D-4
23 November 2022
The ANF failed to place a copy of the orders made on 23 November 2022 on notice boards.
Admitted (R [15]).
SAF [75].

Table E: 23 November 2022 Order - Order 3 (No Encouragement Order)
(i) Contraventions relating to communications to ANF Members
#
Date
Summary of contravention
Respondents’ position
References
E-1
23
November 2022
Ms Reah emailed a “Strike Guide” to ANF Members.
Admitted (R [16]).
SAF [72].
E-2
23 to 25 November 2022
The ANF published and maintained a “Strike Guide” on its Facebook page between 23 and 25 November 2022.
Admitted (R [16]).
SAF [61].
E-3
23 to 25 November 2022
The ANF published and maintained a “Strike Guide” on its Instagram page between 23 and 25 November 2022.
Admitted (R [16]).
SAF [61].
E-4
23 to 25 November 2022
The ANF published and maintained “bus lists” on its iFolio website between 23 and 25 November 2022, by which Members could sign up to take a bus from various locations to a rally at Parliament House on 25 November 2022.
Admitted (R [16]).
SAF [62] and [64].

E-5
24 November 2022
Ms Reah emailed ANF Members on 24 November 2022 regarding a rally to be held at Bunbury and attaching a “Strike Guide”.
Admitted (R [16]).
SAF [77].
E-6
24 November 2022
Ms Reah emailed ANF Members on 24 November 2022 regarding a “strike Subsidy” to be paid by the ANF to members who participated in industrial action and lost wages as a result.
Admitted (R [16]).
SAF [81].
E-7
24 November 2022
ANF Facebook post on 24 November 2022 referring to the strike and the provision of bus services.
Admitted (R [16]).
SAF [82].
E-8
24 November 2022
ANF Facebook post on 24 November 2022 providing information on the “strike subsidy” available to Members and how to claim it.
Admitted (R [16]).
SAF [83].
E-9
24 November 2022
Ms Reah emailed ANF Members on 24 November 2022 to confirm the strike “is still on” and referring to the provision of bus services.
Admitted (R [16]).
SAF [84].

E-10
25 November 2022
ANF Facebook post on 25 November 2022 in same terms as contravention above.
Admitted (R [16]).
SAF [85].
E-11
25 November 2022
ANF Instagram post on 25 November 2022 in same terms as contravention above.
Admitted (R [16]).
SAF [85].
E-12
25 November 2022
ANF Facebook post on 25 November 2022 regarding noise makers, signage and badges provided by the ANF to members participating in the rally.
Admitted (R [16]).
SAF [86].
E-13
-
[Withdrawn]
-
-


(ii) Contraventions involving provision of bus services to ANF members
#
Date
Summary of contravention
Respondents’ position
References
E-14
(1 to 808)
25
November 2022
808 ANF Members who engaged in Specified Industrial Action registered for bus services to be provided by the ANF on 25 November 2022, an unknown number of whom were provided with such bus services on 25 November 2022, each amounting to a separate contravention.
Admitted (R [17]) before the update by which the Applicant specified 808 as a specific number of Members and separate contraventions, and by which it expanded the scope of the contravention to include agreeing to provide bus services in addition or in the alternative to actually providing bus services.
SAF [93].
Comparison of bus registration records discovered by ANF and Department of Health records produced by Mr Vincent (to be filed before the hearing if the parties are unable to agree further facts).

(iii) Contraventions involving payment of strike subsidy
#
Date
Summary of contravention
Respondents' position
References
E-15
(1 to 938. 939)
Between 25 November 2022 and
27 March
2023
The ANF has paid a “strike pay” subsidy of $150 to 938 939 ANF Members because they had taken part in the industrial action and had their pay docked as a result, each payment amounting to a separate contravention.
Partly admitted (R [18]) before the update by which the Applicant has increased the number from 930 to 938 939.
ANF says this is one contravention not 930 contraventions (or, presumably, not 938 939 separate contraventions as now alleged).
SAF [110].

Updated strike pay records discovered by the ANF on 27 March 2023 (to be filed before the hearing if the parties are unable to agree further facts).


(iv) Contraventions involving provision of paraphernalia
#
Date
Summary of contravention
Respondents' position
References
E-16
25 November 2022
On 25 November 2022, the ANF distributed to its Members taking part in rallies around the State signage, banners, noise-makers, badges and other paraphernalia in support of the strike.
Partly admitted (R [19]). It appears the ANF admits the conduct (at least insofar as it relates to the distribution of paraphernalia). It is not entirely clear whether the ANF admits that conduct amounts to a contravention.
SAP [94].
Table F: 23 November 2022 Order- Order 4 (No Public Commentary Order)
#
Date
Summary of contravention
Respondents' position
References
F-1
23 November 2022
Ms Reah addressed the media after a hearing in the Commission on 23 November 2022 and announced there would be a rally and a strike on Friday 25 November 2022.
Admitted (R [21]).
SAP [70].

F-2
23 November 2022
Ms Reah gave an interview on ABC Radio Perth on 23 November 2022 stating that there would be a strike and nothing other than a better offer (including 5% pay rises) would prevent it.
Admitted (R [21]).
SAP [71].
F-3
24 November
2022
Ms Reah gave a press conference on 24 November 2022 stating the ANF would defy the Commission’s orders not to take industrial action and would strike on Friday 25 November 2022.
Admitted (R [21]).
SAP [79].
F-4
24 November 2022
Ms Reah gave an interview on ABC Pilbara- Regional Drive radio on 24 November 2022 in relation to strike on 25 November 2022, and discussed how the strike would affect regional WA.
Admitted (R [21]).
SAP [80].

F-5
24 November 2022
Ms Reah provided information to the ABC by email giving notice of rallies to be held at regional locations.
[New allegation] Admitted (Respondents’ Submissions [112]).
Email produced by the ABC (to be filed before the hearing if the parties are unable to agree further facts) (Applicant’s bundle of non-agreed documents, C1 p 18).
Table G: Ms Reah
#
Date
Summary of contravention
Respondents’ position
References
G
25 November 2022
Ms Reah failed to attend a compulsory conference as summoned without good reason.
Admitted (R [22]).
SAF [88].