Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263

Supreme Court New South Wales

Medium Neutral Citation: Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263 Hearing dates: 16 December 2021 Date of orders: 14 March 2022 Decision date: 14 March 2022 Jurisdiction: Common Law Before: Walton J Decision: (1) The Court declares that the Australian Education Union New South Wales Teachers Federation Branch has contravened the dispute orders made by the Commission on 29 November 2021 in the respects alleged by the Prosecutor in Contraventions A and F of the amended summons, excluding particulars not available on the admitted evidence, in accordance with this judgment. (2) Pursuant to s 139(3)(e) of the Act, the Court imposes a penalty upon the Australian Education Union New South Wales Teachers Branch of $30,000. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — industrial action – dispute orders – Industrial Relations Act (1996) (NSW) ("the Act") – statutory scheme – statutory interpretation – objects of the Act – maximum penalty – construction of s 139(4) of the Act – industrial organisation – history of the industrial organisation –Federation registered as industrial organisation – whether different legal species of organisation than its predecessor – validity of dispute orders – whether validity of dispute orders can be the subject of collateral attack in enforcement proceedings – whether dispute orders required the Federation to do something it cannot do – procedural fairness – notice of members of Federation –members not notified of the dispute orders – whether dispute orders were manifestly ambiguous and unclear – contravention of dispute orders – whether multiple separate contraventions of dispute orders – whether dispute orders imposed separate and distinct obligations on the industrial organisation – single course of conduct – assessment of penalty – sentencing principles – prior contraventions as a factor in sentencing – principle of totality – objective factors – nature and extent of contravening conduct – seriousness of conduct – deliberateness of conduct – loss and damage caused – circumstances of contravention – previous breach of dispute orders – general deterrence – specific deterrence – subjective factors – orders Legislation Cited: Constitution Act 1902 (Cth) Fair Work Act 2009 (Cth) Fair Work (Registered Organisations Act) 2009 (Cth) Industrial Relations Act 1996 (NSW) Industrial Relations Commission Rules 2009 (NSW) Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) Industrial Relations Reform Act 1993 (Cth) Interpretation Act 1984 (NSW) Legislative Instruments Act 2003 (Cth) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ABCC v CFMMEU (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 ACCC v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 Ashworth v Terrill [2019] NSWSC 1596 Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 Attorney-General v Tichy (1982) 30 SASR 84 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] 286 IR 336 Australian Medical Association (NSW) Limited v The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service [2007] NSWIRComm 289 Australian Salaried Medical Officers' Federation (NSW) v Secretary of Health [2018] NSWIRComm 1052 Australian Workers' Union (NSW) v Bluescope Steel (AIS) Pty Ltd [2006] NSWIRComm 71 Bluescope (AIS) Pty Ltd v Australian Workers' Union (No 2) [2005] NSWIRComm 210 Bluescope Steel Ltd (formerly known as BHP Steel Ltd) v The Australian Workers' Union, New South Wales [2006] NSWIRComm 338 Burwood Cinema Limited and Others v The Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528 Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2018) 170 FCR 357 CEPU v Registered Organisations Commissioner [2020] FCAFC 232 CFMEU v Cahill (2010) 194 IR 461 CFMEU v Williams (2009) 191 IR 445 Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 Commonwealth of Australia v Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (2020) 283 FCR 404; [2020] FCAFC 232 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Non-Indemnification Personal Payment Case) (2018) 264 FCR 155; [2018] FCAFC 97 Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445 Construction, Forestry, Mining and Engineering Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 29 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Direction General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 Director General of Education and Communities v NSW Teachers Federation [2012] NSWIRComm 92 Director General of New South Wales Department of Education and Communities and Managing Director of TAFE v New South Wales Teachers Federation [2012] NSWIRComm 58 Director General of New South Wales Department of Education and Communities v New South Wales Teachers Federation [2012] NSWIRComm 93 Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 Director of Public Prosecutions v Zheng [2021] NSWSC 131 Director-General, Department of Education and Training v New South Wales Teachers' Federation [2000] NSWIRComm 103 Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44 Electrolux Home Products Pty Limited v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 Esso Australia Pty Ltd v The Australian Workers' Union (2015) 253 IR 304 Esso Australia Pty Ltd v The Australian Workers' Union (2016) 245 FCR 39; [2016] FCAFC Harris v Ansett Transport Industries (Operations) Pty Ltd (1978) 45 FLR 469 Hawkins v R (1993) 67 A Crim R 64 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (2017) 93 NSWLR 723; [2017] NSWSC 71 Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2021] NSWSC 160 Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (No 2) [2017] NSWSC 430 Jacobs v OneSteel Manufacturing Pty Ltd & Workcover Corporation of SA (2006) 93 SASR 568 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265 Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McFarlane v Daniell (1938) 38 SR (NSW) 337 McKernan v Fraser (1931) 46 CLR 343; [1931] HCA 54 Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 1263 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Pastoral Industry (State) Award Application by Australian Business Industrial for a new award and another matter [2001] NSWIRComm 27 Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580; [2020] FCAFC 177 Pearce v The Queen (1988) 194 CLR 610; [1998] HCA 57 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 Public Service Board (NSW) v Public Service Assn (NSW) [1986] 14 IR 445 R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Amalgamated Engineering Union (1953) 89 CLR 636; [1953] HCA 60 R v Dodd (1991) 57 A Crim R 349 R v Geddes (1936) 36 SR (NSW) 554 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Scott [2005] NSWCCA 152 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55 Royer v Western Australia [2009] WASCA 139 Secretary of the Treasury v PSA (No 2) (2013) 231 IR 349; [2013] NSWIRComm 25 Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (2014) 89 NSWLR 688; [2014] NSWCA 138 The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) [2008] NSWIRComm 112 The Public Service Association and Professional Officers' Association Amalgamated (NSW) v Director of Public Employment (2012) 250 CLR 343; [2012] HCA 58 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Victoria v Commonwealth (1996) 187 CLR 416; [1996] HCA 56 Texts Cited: Leeming, "Authority to Decide - The Law of Jurisdiction in Australia", Federation Press, 2nd Edition (2020) Macquarie Dictionary, 7th Ed (2017) Shorter Oxford English Dictionary, 6th Edition (2007) Category: Principal judgment Parties: Secretary NSW Department of Education (Plaintiff) The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch (Defendant) Representation: Counsel: B Byrnes (Plaintiff) S Crawshaw SC (Defendant)