Industrial Relations Commission of New South Wales CITATION: The Australian Workers Union, New South Wales v BlueScope Steel Limited [2005] NSWIRComm 71 APPELLANT: The Australian Workers Union, New South Wales PARTIES: RESPONDENT: BlueScope Steel Limited FILE NUMBER(S): IRC 1140 of 2005 CORAM: Schmidt J Stay of dispute orders - application for urgency - balance of convenience considered - orders formulated by Commission - ex-parte proceedings- no evidence - application for stay granted - Orders 2 and 4 stayed CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Broken Hill Chamber of Commerce and Ors v Construction, Forestry, Mining and Energy Union (New South Wales Branch) and Ors (2002) 118 IR 183 HEARING DATES: 03/08/2005 DATE OF JUDGMENT: 03/08/2005 APPELLANT: Mr I Taylor, counsel SOLICITORS: Maurice May Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr D Lloyd, solicitor SOLICITORS: Blake Dawson Waldron JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J DATE: 8 March 2005 MATTER NUMBER IRC 1140 OF 2005 THE AUSTRALIAN WORKERS UNION, NEW SOUTH WALES v BLUESCOPE STEEL LIMITED Application by The Australian Workers Union, New South Wales for leave to appeal and appeal against a decision of Commissioner O'Neill given on 11 February 2005 in Matter Number IRC 726 of 2005 DECISION 1 On 4 March 2005, the appellant union filed an application for leave to appeal and appeal against a decision of Commissioner O'Neill, given on 11 February 2005, when dispute orders were made under s136 of the Industrial Relations Act 1996 ('the Act'). This decision deals with an application for stay and urgency. 2 The orders made were: 1. That the planned Stop - Work meeting of all members of the AWU which is to take place on Monday 17th February at 7.30am is to be called off and all employees of BlueScope are to return to work as normal. 2. The AWU it's(sic) officer and Organisers are to cease and desist form(sic) calling, organising or attending any planned stop work meeting at BlueScope Pty Limited or of it's(sic) members at BlueScope Pty Limited. 3. The AWU its officers and organisers are to take all steps necessary to cancel the proposed stop work meeting. 4. The AWU it(sic) officers and organiser, officials and members at BlueScope Pty Limited are to cease all form of industrial action including strikes, bans and limitations effective immediately. 5. The company BlueScope Pty Limited is to take all steps possible to ensure that their employees are informed of these orders. 6. The company BlueScope Pty Limited is to take no action to prevent these orders from coming into effect. 7. These orders are to come into force effective immediately and to remain in force for a period of 3 months. 3 The questions raised on the appeal are: 1. Whether in the circumstances the Commissioner was entitled to issue a Certificate of Attempted Conciliation; 2. Whether the Commissioner had power to make dispute orders, and if so whether the orders made should have been made either at all or in those terms. 4 Matters advanced in support of leave to appeal and appeal go to the Commission's power to issue a certificate of attempted conciliation under s135(2) of the Act, ex-parte; whether there is a requirement that parties be given a reasonable opportunity to participate in conciliation before such a certificate is issued; whether and in what circumstances dispute orders may be made ex-parte, including where the persons the subject of the orders have not been notified that a certificate of attempted conciliation has been issued, or that an application for dispute orders is to be heard; whether dispute orders may be made in the absence of any evidence; and whether dispute orders should be limited in scope so as to deal only with the particular conduct which forms the basis of the dispute before the Commission. It is also asserted to be in the public interest that dispute orders name the correct parties and locations to which the orders are directed. Questions of natural justice are also raised. 5 The proceedings before the Commissioner were notified to the Commission under s130 of the Act on 11 February 2005, by Messrs Blake Dawson Waldron, solicitors for BlueScope Steel Limited. The dispute was said to concern 'a proposed stop work meeting at 7.30am on Monday 14 February 2005 of all paintline employees, members of the Australian Workers' Union, New South Wales (AWU) engaged in the Company's Painting and Finishing Department of the company's Springhill site.' The issues underlying the dispute, which had been the subject of other proceedings before the Commission, were referred to. 6 A number of things were common ground between the parties. They included that BlueScope Steel Limited is the employer of AWU members at the Springhill site; that it is a party to a consent award of this Commission, which applies to that site; and that the company referred to in the dispute orders, BlueScope Pty Ltd is a separate legal entity, which neither employs AWU members at the site, nor is a party to the consent site award, nor appeared in the proceedings before the Commissioner. Both the conciliation and arbitration before the Commissioner on 11 February proceeded ex-parte. A Mr Andersen, an AWU official was initially present, but left before the conciliation proceedings commenced. The Commissioner issued a certificate of attempted conciliation and then heard an application for dispute orders, in the absence of the AWU and without requiring any evidence to be called, himself formulating the orders made. The union was given no notice that such orders would be sought, or considered. 7 Stop work meetings of AWU members employed at the site have occurred, since the orders made by Commissioner O'Neill. The respondent reserves its right to initiate proceedings under s139 of the Act, in respect of these stoppages. The proceedings before the Commissioner were relisted on application of the AWU, when concerns as to the nature of the orders made were raised. However, neither the AWU, nor the respondent have since taken any steps to have the dispute orders made by the Commissioner revoked or varied, despite what appears to be an entirely erroneous reference to BlueScope Pty Limited, on the face of the orders and a concern by the AWU as to the vagueness and uncertainty of the orders made. Such an avenue is available to either party under s138(2)(c) of the Act. 8 The stay which the union pressed was in respect of orders 2 and 4. 9 A Full Bench of the Commission considered the principles to be applied in a case such as this, when a stay of dispute orders is sought, in Broken Hill Chamber of Commerce and Ors v Construction, Forestry, Mining and Energy Union (New South Wales Branch) and Ors (2002) 118 IR 183. The applicable principles appear at [11]. In short, the appellant bears the onus of demonstrating a proper basis for a stay, fair to all parties, having regard to the balance of convenience and the competing rights of the parties. If refusal to grant the stay would make the appeal nugatory or abortive, a stay should normally be granted. The appellant's prospects of success are relevant to the specific terms of any stay granted. 10 Here, the delay in bringing the appeal militates against the stay being granted. Nevertheless, I am satisfied that the terms of the orders themselves, in the circumstances here before the Commission, result in the balance of convenience and the competing rights of the parties, favouring the grant of the stay. 11 On their face the orders are directed to a company which was not a party to the proceedings, which does not employ those members of the union involved in the dispute notified to the Commission and which is not a party to the award which applies to such persons. These are all matters relevant under s138 of the Act. 12 The orders made have a life of 3 months. Order 1 was directed to a stop work meeting on 17 February, erroneously it seems, the correct date being 14 February. Order 2 is concerned with the AWU, its officers and organisers calling, organising and attending stop work meetings. It was the respondent's case that this order had to be understood as referring only to stop work meetings which it had not authorised. Order 4 referred to the AWU, its officers, organisers officials and members, engaging in industrial action. It was the respondent's case that all the orders must be understood as referring to it, BlueScope Steel Limited and its employees, given that it was the notifier in the proceedings. The orders must also be understood as being limited to its Springhill site, that being the location of the proposed stop work meeting referred to in the dispute notification. 13 This approach to the orders carried with it the difficulty that they were not on their face so limited, a relevant matter given the requirements of s138(2). Contravention of such dispute orders carries with it potentially significant consequences, given the provisions of s139 of the Act. It is pertinent in this context that the respondent has itself taken no steps to have the Commission deal with what appear on the face of the orders to be some significant difficulties. Nor have proceedings under s139 of the Act been commenced, although the respondent reserves the right to do so. 14 In opposing the stay the respondent also raised, as matter relevant to the balance of convenience, its concern about the history of industrial action at the site, contrary to the applicable dispute resolution procedure and the likelihood that any lifting of the stay might lead to further industrial action. 15 In that respect, account must be taken of the fact that any stay granted will operate prospectively, thereby preserving the parties' existing positions in relation to any industrial action already taken in breach of the orders. 16 The possibility of further industrial action must also obviously be considered. Such action would be most unfortunate but ought not to result, given that the underlying difficulties which gave rise to the earlier industrial action, are presently the subject of ongoing conciliation before the Commission in other proceedings. It is to be expected that those proceedings will continue in the usual orderly way, in the absence of industrial action. Any further industrial action which followed upon the granting of a stay would, in those circumstances, provide a powerful basis upon which the respondent would be entitled to seek further dispute orders from the Commission. 17 What finally sways the balance of convenience in this case in favour of granting the stay, is the exceeding width of the terms in which Orders 2 and 4 were cast by the Commissioner. Orders given a life of 3 months, with serious potential consequences flowing from any breach. Those orders were formulated by the Commissioner, it appears, without any evidence or hearing either the union or the respondent, as to their terms. 18 In the circumstances here before the Commission, it is apparent that the appeal raises important questions as to the proper operation of various provisions of the Act, as well as the requirements of natural justice. I am satisfied that a stay of Orders 2 and 4, as from today's date, provides an appropriate and fair adjustment of the respective interests of the parties. 19 In those circumstances, the union accepted that no situation of urgency existed, which would warrant expedition of the hearing of the appeal. The respondent did not argue to the contrary. I am satisfied that the circumstances are such that an order displacing other appellants, or advancing the hearing of this appeal, before those of other appeal proceedings before the Commission, is not warranted. Orders 20 For the reasons given, Orders 2 and 4 of the Commissioner's orders are stayed from today's date, pending the hearing of the appeal. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.