Industrial Relations Commission New South Wales Medium Neutral Citation: Director General of Education and Communities v NSW Teachers Federation [2012] NSWIRComm 92 Hearing dates: 4/06/2012 Decision date: 24 August 2012 Before: Backman J Decision: The respondent is fined $12,500 for the contravention of the dispute order made by Kavanagh J on 12 December 2011. Catchwords: INDUSTRIAL DISPUTE - contravention of dispute order - dispute over wages and salaries increases - relevant factors to be taken into account when determining penalty - penalty imposed Legislation Cited: Industrial Relations Act 1996 Cases Cited: Bluescope Steel (AIS) Ltd v AMU and Anor (No 2) [2005] NSWIRComm 210 Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Director-General, Department of Education and Training v New South Wales Teachers Federation [2000] NSWIRComm 17 Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44 Director-General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 Director-General of the NSW Department of Education and Communities and Managing Director of TAFE NSW v New South Wales Teachers Federation [2012] NSWIRComm 58 Category: Principal judgment Parties: Director General of Education and Communities (Applicant) NSW Teachers Federation (Respondent) Representation: Mr P Kite, SC with Mr M Easton of counsel (Applicant) Mr N Dawson (Solicitor) (Respondent) I.V. Knight Crown Solicitor for NSW Crown Solicitor's Office (Applicant) Federation Law Pty Ltd (Respondent) File Number(s): IRC 1937 of 2011 Judgment 1The applicant, the Director General of Education and Communities, applied for the imposition of a penalty against the respondent, the NSW Teachers Federation, for a contravention of a dispute order made by her Honour Justice Kavanagh on Tuesday, 12 December 2011 (the dispute order). 2Pursuant to s 139 of the Industrial Relations Act 1996 (the Act), the applicant caused a Summons to show cause to be issued to the respondent summonsing the general secretary of the respondent to show cause why this Court should not take action against the respondent for the contravention. Immediately upon the filing of an amended application on 17 February 2012 the respondent admitted the contravention of the dispute orders. In subsequent written submissions the respondent admitted the contravention in the following terms: On 15 December 2011, in contravention of the order made by Kavanagh J on 12 December 2011, the New South Wales Teachers Federation took industrial action. Background 3Before considering the parties' respective submissions on penalty, it is necessary to set some of the relevant factual background. This has been helpfully reproduced in two affidavits of Mark Andrew Philip dated 23 December 2011 and 13 March 2012. Mr Philip, at the time he made his affidavits, was employed by the applicant as the Director, Industrial Relations, a position he has held since February 2011. 4On 23 October 2011, the respondent, on its worksite, posted an endorsement of industrial action in the form of a stop work meeting for up to two hours to be held on 2 November 2011. The proposed industrial action was said to be in response to the NSW government's failure to provide a fair and reasonable salaries offer to school and other public education teachers and a failure to commence negotiations. 5The applicant responded to the website posting by notifying a dispute to this Commission on 26 October 2011. A conciliation conference was convened before Marks J on 28 October 2011 at which time his Honour made a Recommendation that the respondent cease and desist from any industrial action on 2 November 2011. 6According to Mr Philip, at some stage the applicant became aware that the respondent intended to continue with the industrial action. It took steps to re-list the matter before Marks J. Further conciliation was unsuccessful and on 1 November 2011 Marks J issued a certificate of attempted conciliation. 7On the same day, the matter came before Kavanagh J at which time her Honour made a Recommendation encompassing the following matters: (a) the applicant agree to make an offer in accordance with the Government's stated Public Sector Wages Policy 2011, to the respondent; and, (b) in that circumstance the respondent is to cease all industrial action. 8Her Honour's Recommendation set out some of the history relevant to the progress of negotiations between the parties. Her Honour noted: At the time Marks J made his Recommendation there was no offer made by the Department who, under guidelines of the New South Wales Public Sector Wages Policy 2011 (published June 2011), should have begun negotiations with the relevant party within three months of the expiry date of the relevant Industrial Instrument (8.6 of the Policy). Under the Government's Wages Policy negotiations should be conducted by the Department in a co-operative and problem solving manner (8.11 and 8.12 of the Policy). The Department, however, has, since the hearing before his Honour Marks J, made an offer through the Federation to the New South Wales Teachers Federation late yesterday afternoon. In that correspondence, directed to the General Secretary of the New South Wales Teachers Federation, the Deputy Director General Workforce Management and Systems Improvement, acknowledged: "... The New South Wales Public Sector Wages Policy 2011 requires that salary increases above 2.5% per year can only be paid through the achievement of employee related cost savings" (emphasis added) The offer then reads as follows: 1. The current school teachers award will be continued. 2. Salaries, rates of pay and allowances payable under the school teachers award will be increased by 2.5% by way of administrative action taking effect from the first pay period to commence on or after 1 January 2012. 3. The Department will consult the Federation regarding reform identified through the Local Schools, Local Decisions consultation process and the framework for reform will be completed by February 2012. 4. The Department will commit to negotiate a new school teachers award, for a period of up to two years, in the second quarter of 2012. Therefore, the offer made by the Department of a 2.5% wage increase to the school teachers of New South Wales is conditional in its terms. The offer is, in its terms, inconsistent with the Government's stated Public Sector Wages Policy (read 3.1.3 together with 3.1.4 of the Policy). Further, this offer has been made well outside the Policy's identified reasonable period to begin negotiations. 9Kavanagh J's account puts into perspective an issue between the parties in these proceedings concerning precisely when the parties commenced wage negotiations. According to the applicant's written submissions the parties conducted certain wage negotiations, "in the last quarter of 2011", and that during the negotiations the respondent threatened industrial action against the Commission's recommendation. According to the respondent there had been no negotiations prior to the notification of the dispute which came before Marks J on 28 October 2011. It was also contended that it was incorrect and misleading to claim that during the negotiations the respondent threatened, and took, industrial action. As at 28 October 2011, there had been no offers made in accordance with the Policy. The action taken by the respondent on 2 November 2011, therefore, was not taken "during" negotiations but in protest against the fact that there had been no negotiations. 10The transcript of the proceedings before Marks J on 28 October 2011 was annexed to the respondent's written submissions. That transcript, together with the extract from Kavanagh J's Recommendation, confirm, consistent with the respondent's contentions, that there had been no negotiations up to 28 October 2011 and that the applicant's offer made some time on 31 October 2011 was not made in accordance with the dictates of the Policy. Rather, it was inconsistent with its terms and was outside the identified reasonable period within which negotiations should have commenced. 11Notwithstanding Kavanagh J's Recommendation on 1 November 2011, the respondent took industrial action on 2 November 2011. Following that, the respondent advised its members of further planned industrial action to take place on 29 November 2011. 12On 11 November 2011, the parties again appeared before Kavanagh J for further conciliation. At that time, her Honour made a Statement and Further Recommendation, which included the following recommendations: (i) the parties enter into negotiations related to a new Award and the negotiation period be from 12 November to 30 November 2011; (ii) there be no further industrial action during the period of negotiations set by the Commission. 13In conformity with Kavanagh J's recommendations, the parties commenced discussions and the industrial action proposed for 29 November 2011 did not take place. However, the discussions failed to result in any agreement and the dispute was re-listed before Kavanagh J on 30 November 2011. On that date, the parties made submissions on whether award rates should be increased by 2.5 per cent, and if so, by what means. On 1 December 2011, her Honour varied the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009 (the Award) to provide for a 2.5 per cent increase to salaries and wages from 1 January 2012. On 7 December 2011, the parties filed a consent document reflecting the variations made to the Award. 14One week later, on 9 December 2011, the respondent posted on its website a notification of a Stop Work Meeting scheduled to take place on 15 December 2011. The posting contained the heading, "2.5% is not enough!" The posting was followed by a publication by the respondent on 12 December 2011 which included the following statements: All Fed Reps and members are urged to do what you can to maximise attendance at the StopWork meetings at 9am on Thursday 15 December. Federation Executive believes that, if there is to be any prospect of meaningful negotiations for additional increases during the summer vacation, it is essential that members have an opportunity to make clear to the government that a 2.5% increase is inadequate and is a pay cut of about $17 per week in real terms from 1 January 2012. Stopwork action is needed at this time to send this message and to determine further action. 15On the same day of the website posting of 12 December 2011 the applicant applied to the Commission for dispute orders. Kavanagh J heard the application that day and made the dispute orders. The Court was informed that only the first of those orders is the subject of the amended application in the present proceedings. It reads as follows: 1. The NSW Teachers Federation by its officers, employees and members employed by the Director-General of Education and Communities are hereby ordered to refrain from taking industrial action on 15 December 2011. 16Notwithstanding the dispute orders, the respondent's website posting of 9 December 2011 remained until 22 December 2011. On 13 December 2011, the day after the dispute orders were made, the respondent sent a message by facsimile to its representatives in schools and other work locations. The message advised that the stop work meetings scheduled for 15 December 2011 would go ahead despite the orders made by Kavanagh J. The message commenced with the following paragraphs: Stopwork to proceed The choice is simple - accept the cut to your real income and the income of your colleagues from 1 January or act now In the Industrial Relations Commission (IRC) yesterday afternoon, Justice Kavanagh issued a 'no strike' order against the Federation in relation to Thursday's stopwork. She has also ordered that representatives of the Board of Studies and Corrective Services appear before her on Thursday morning at 10am, when she will consider varying the two awards covering these areas in line with the schools award. However, all members should understand: 1. the IRC's hands are now tied by the O'Farrell government's legislation. It cannot grant any further increases beyond the 2.5% without these being funded through cuts to your working conditions and students' learning conditions. The legislation also prohibits the backdating of any increases. 2. your real income will be cut on average by an average of $17 per week from 1st January 2012. 3. an increase above 2.5% will only be won if you and your colleagues are prepared to act now to convince the government to vary its wages policy. 4. had we called action earlier, developments, including the payment of the 2.5%, could have been jeopardised. As a consequence of this, the stopwork meetings for up to two hours will proceed on Thursday morning. 17On 14 December 2011, the respondent posted information on its website of proposed "stopwork venues" and urged members to attend the stop work meeting scheduled for "up to two hours" on 15 December 2011. 18On 15 December 2011, the stop work meeting took place. Following the meeting the respondent posted advice on its website which is partially extracted below: Government put on notice 15 December 2011 By NSW Teachers Federation School teachers across NSW today sent a clear message to the O'Farrell government: negotiate to achieve a fair and reasonable salary increase, or face disruption to schools at the start of the 2012 school year. Teachers will not tolerate a cut in their real incomes, which is what is offered by the government. Teachers in TAFE, Corrective Services, the Board of Studies and AMES have been offered no increases. At 260 meetings across the state this morning, teachers declared their commitment to achieving and maintaining attractive and professional salaries for NSW public education teachers, and a new school staffing agreement that ensures the equitable supply of qualified teachers to all schools across the state. Teachers' current employment rights and entitlements must be protected. If negotiations prove unsuccessful, teachers asked the Federation Executive to meet in January to call further statewide industrial action early in the 2012 school and college year. 19The applicant submitted that the circumstances of the contravention demonstrated that the respondent's conduct was in "blatant and deliberate defiance" of the dispute order made by the Commission. 20The quotation is extracted from a decision of Staff J in Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44 (DET v TF) at [37(a)]. The circumstances before his Honour which prompted the finding included the respondent's conscious decision in the face of dispute orders to proceed with a 24-hour work stoppage. Given the relevant factual background which has given rise to the present contravention, the Commission has little hesitation in making the same finding. 21Although the Court has not been persuaded by the applicant's contention, earlier dealt with, that in the last quarter of 2011 the parties conducted certain wage negotiations during which the respondent threatened industrial action, the inference is undeniable that despite the dispute order issued by Kavanagh J on 12 December 2011, the respondent acted in complete disregard of that order when it proceeded with the stop work meeting three days later on 15 December 2011. This conclusion receives support in the events both preceding and subsequent to the making of the order. Considerable efforts had been made by the Court to attempt to resolve the issues between the parties by way of conciliation. Those efforts culminated in a variation to the Award by Kavanagh J on 1 December 2011 which provided for increases of 2.5 per cent to salaries and wages. The respondent consented to the terms of the variation on 7 December 2011 when the consent document was filed. Two days later, the respondent notified its members of the stop work meeting scheduled to take place on 15 December 2011. This action prompted the applicant to apply for the dispute orders which were granted on 12 December 2011. The following day, the respondent indicated its intention, via facsimile to its members, to proceed with the stoppage on 15 December 2011, and on 14 December, the respondent circulated information on "stopwork venues" and again urged its members to attend the stop work meeting. 22This Court considers the respondent's disregard for its processes, and for its authority, as very serious. In this regard, I accept and adopt the remarks of Marks J in Director-General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 (DET & TAFE v TF) at [15] as directly applicable to these proceedings: The existence of a system such as that established by the Industrial Relations Act 1996 reflects a sophisticated and civilised approach to dealing with industrial disputation, including differences of opinion which do not necessarily manifest themselves in any industrial action. In any sophisticated and civilised regime that regulates the manner in which persons, and entities that represent them, conduct their affairs, it is necessary to provide an overarching structure to ensure that the regime works in practice. Without such an overarching structure, there would be no means of compelling obedience to authority and this would lead to anarchy. So that any teacher who might read this judgment may fully understand the situation to which I am referring, the need for a hierarchical structure of authority, and means of implementing it, is replicated in TAFE and school campuses. 23In the same judgment, Marks J found that the respondent had contravened dispute orders made by a Full Bench of the Commission. His Honour expressed the following views in relation to the respondent's conduct on that occasion (at [17]): ... As the evidence to which I have referred demonstrates, there was on the part of the respondent a deliberate and planned course of conduct leading up to the arranging and holding of the stop work meeting. That stop work meeting was undertaken in calculated disregard of the dispute orders issued by the Full Bench of the Commission. The circumstances in which that stop work meeting was conducted are indicative of an act of defiance in reaction to a decision of a Full Bench of the Commission. It is representative of a disregard for and dismissal of the authority of the New South Wales Industrial Relations Commission. This type of conduct if committed by a student at a TAFE college would not and could not be tolerated because of the obvious impact that it would have on the integrity of the organisation and the authority of those conducting it. 24This Court takes the same view as his Honour in relation to the respondent's conduct the subject of the present application in deliberately disregarding a binding order made by Kavanagh J. 25The applicant submitted that the consequences of the contravention were significant. Mr Philip provided statistics, which were accepted by the respondent, of the number of schools which were non-operational and the number of students and teachers who were absent as a result of the industrial action. According to Mr Philip, for the period of the industrial action: a. 127 schools were non-operational; b. Even though 2102 schools were operational, almost 55% of students across the State were absent; and c. Approximately 45% of schools teaching staff (23,218 employees) were absent. 26These statistics reveal a significant disruption to schools and to teaching services across the State, directly attributable to the respondent's industrial action. The respondent, at oral hearing, contended that the percentage of student absenteeism referred to by Mr Philip on the day of the work stoppage did not accurately reflect student absences arising directly from the stoppage because the figure does not take into account student absences for other reasons. The respondent did not place before the Commission any breakdown of student absenteeism on the day in question. It may be that some students were absent on that day for reasons unrelated to the industrial action. Nevertheless, it may be reasonably concluded, based on the number of schools rendered non-operational, that the majority of students were absent that day because of the respondent's industrial action. 27The principles of deterrence also fall for application in these proceedings. With regard to general deterrence, the applicant relied upon the making of dispute orders by the Commission as a step which must be taken seriously by the parties. The applicant also contended that although it has been observed by the Court that the incidence of contravention of dispute orders is rare, there is a continuing need for general deterrence. The respondent contended that the incidence of dispute orders in this jurisdiction is almost non-existent therefore any element for general deterrence must be small. 28The parties' respective contentions concerning the incidence of contraventions of dispute orders were derived from a 2005 decision of Boland J in Bluescope Steel (AIS) Ltd v AMU and Anor (No 2) [2005] NSWIRComm 210. At [53] of the judgment, his Honour said: It is appropriate to include in the penalty an element to deter others from contravening dispute orders. However, the incidence of contraventions of dispute orders in this jurisdiction is almost non-existent and so any element for general deterrence must be small. 29The approach of Boland J was followed by Staff J in DET v TF. At [47], Staff J said: It is appropriate to include in the penalty an element to deter others from contravening dispute orders. I note that this Court has observed on previous occasions, that the incidence of contraventions of dispute orders are rare or almost non-existent: see Bluescope Steel (AIS) Ltd v AWU and Anor (No 2) (at [53]); Bluescope Steel Ltd (formerly BHP Steel Ltd) v Australian Workers' Union, New South Wales (No 2) (at [34]). It follows that any element for general deterrence must be small. 30Marks J, in DET & TAFE v TF, referred to the requirement to have regard to the deterrent effect of any monetary penalty that is imposed. 31The purpose of general deterrence is to deter others who might consider contravening dispute orders at some future stage. In circumstances where such contraventions are not prevalent but are in fact relatively rare, some weight should still be given to general deterrence when imposing penalty. 32Specific, or personal, deterrence in the Court's view falls into a different category. When imposing penalty, more weight should be given to the principle where a respondent has a history of contravening dispute orders which may be said to manifest a continuing attitude of disobedience. In the present circumstances the respondent continued to organise and then hold the stop work meeting of 15 December 2011 after Kavanagh J made the dispute order. In a similar vein, Marks J in DET & TAFE v TF found that the respondent had organised, "the stop work meeting in flagrant breach of the dispute order": at [27]. Staff J, in DET v TF, applied the principle on the basis that the respondent had earlier contravened a dispute order. The applicant brought to the Court's attention four previous prosecutions for contraventions of dispute orders made against the respondent. They include the contraventions dealt with by Marks J in DET & TAFE v TF in 2010 and by Staff J in DET v TF also in 2010. Two other contraventions were dealt with by Marks J in Director-General, Department of Education and Training v New South Wales Teachers Federation [2000] NSWIRComm 17 and, recently by his Honour Justice Haylen for a contravention of dispute orders made on 7 September 2011 in Director-General of the NSW Department of Education and Communities and Managing Director of TAFE NSW v New South Wales Teachers Federation [2012] NSWIRComm 58. 33The propensity with which the respondent has contravened dispute orders, now on five separate occasions since 2000 (including four occasions since 2009), facilitates a conclusion that the respondent is not unlikely to commit a similar contravention in the future. Accordingly, weight must be attached to the application of specific deterrence in these proceedings. 34The maximum penalty under s 139(4)(b) of the Act is $20,000. This is by reason of the fact that penalties have previously been imposed on the respondent for contraventions of earlier dispute orders under s 139. Subjective factors 35The respondent admitted the contravention at the first available opportunity, thereby saving costs and expenses and the time of the Court which would have been otherwise taken up with a contested hearing. These matters were acknowledged by the applicant although it contended that the frequency with which the respondent breaches dispute orders, "somewhat diminishes that utility". The Court rejects this latter contention insofar as it purports to provide some connection to the utilitarian value to be derived from the admission. The utilitarian value is concerned only with the costs and savings achieved by reason of the admission, not with the respondent's prior contraventions which have been dealt with in the context of specific deterrence. The earlier the admission the greater the costs and savings achieved and consequently the greater the discount of penalty. 36The Court also accepts as a discrete matter that the admission constitutes some evidence of remorse or contrition. In so doing, the Court adopts the approach of Staff J in DET v TF at [49]: To the extent that it was submitted that the admission made by the Federation should be treated as a plea of guilty as entered in criminal proceedings, and receive a discount of 25 per cent for the utilitarian value of the plea, I reject such a submission. These are not criminal proceedings and although I accept that the admission is a manifestation of remorse or contrition, I do not propose to apply strictly the principles in R v Thomson; R v Houlton. However, I do propose to discount the penalty that I would have otherwise imposed upon the Federation for the saving of costs and expenses, and the time of the Court in dealing with this matter. 37The applicant contended that there were no other relevant subjective factors that the Court could take into account in mitigation of penalty. The respondent on the other hand sought to place some reliance on a proposition that on 15 December 2011 the industrial action taken by the respondent involved all public sector unions, but only the respondent was proceeded against by the State of NSW. 38In the Court's view, this is not a relevant consideration. The Court has had no information placed before it as to the circumstances of any other unions taking part in industrial action on 15 December 2011 or why no dispute orders were sought against them. 39The respondent also brought to the attention of the Court a consideration identified by Branson J in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 232, to which the Court may have regard in determining penalty. The particular consideration identified by her Honour arose from a contravention of Part XA - Freedom of Association of the Workplace Relations Act 1996 (Cth). Her Honour found that in determining penalty, regard may be had to whether more than one contravention under Pt XA could be seen as distinct contraventions or whether they could be seen to arise out of the one course of conduct. A reading of her Honour's decision reveals that she was dealing with three separate instances of conduct and there was no suggestion that conduct in contravention of Pt XA had been engaged in on some prior occasion. In contrast, the Court here has before it a single contravention and evidence of prior contraventions which occurred earlier in time, that is, a quite different consideration from the one identified by Branson J. The relevance of prior contraventions has been taken into account by the Court in the context of the application of specific deterrence. This is a matter identified by Boland J in Bluescope v AMU (at [37]), as relevant and appropriate to take into account when considering a contravention of dispute orders under s 139 of the Act. 40The respondent also brought to the Court's attention a number of earlier decisions in which penalties were imposed for contraventions of dispute orders. The decisions were placed before the Court to provide guidance when imposing penalty. The respondent acknowledged in written submissions that each case is considered in light of its particular circumstances. In the Court's view, no assistance can be derived when imposing penalty by embarking on a comparative exercise of other decisions which clearly turn on their own respective facts and circumstances. Other matters 41During the proceedings, the applicant brought to the Court's attention a matter which had been raised in proceedings before Haylen J concerning a contravention of dispute orders made on 7 September 2011: Director-General of the NSW Department of Education and Communities and Managing Director of TAFE NSW v New South Wales Teachers Federation [2012] NSWIRComm 58. 42The matter concerns the issue of the Summons to show cause under s 139(2) of the Act. That section provides: Before dealing with an alleged contravention of the order, the Commission is required to summon the person alleged to have contravened the order to show cause why the Commission should not take action for the contravention. 43In the proceedings before Haylen J, the Summons to show cause was signed by the Industrial Registrar. Section 139(2) requires, in terms, that the Commission issue the Summons, which initiates the proceedings, not the Industrial Registrar or the Deputy Industrial Registrar. 44In the present proceedings, the Summons to show cause purports to be issued by the Industrial Registrar, although it was acknowledged by both parties that the signatory to the Summons is in fact the Deputy Industrial Registrar. 45The applicant's submissions on this matter were to the effect that the Summons to show cause nevertheless complied with the Act, but if the Court were to form a contrary view, it would be open to treat the matter as an irregularity under s 170(3) of the Act. The respondent did not object to this proposed course. In oral submissions, the applicant presented an alternative proposal which was that the Court could issue a replacement Summons and treat the evidence and submissions advanced by the parties as the evidence and submissions in response to the replacement Summons. There was no objection by the respondent to this alternative proposal. 46The functions of the Industrial Registrar and the Deputy Industrial Registrar are set out in s 208 of the Act which provides, relevantly: (1) The Industrial Registrar has the functions conferred or imposed on the Industrial Registrar by or under this or any other Act or law. (2) A Deputy Industrial Registrar may exercise the functions of the Industrial Registrar: (a) as directed by the Industrial Registrar, and (b) during the absence of, or a vacancy in the office of, the Industrial Registrar. (3) Anything done or omitted by a Deputy Industrial Registrar in exercising a function of the Industrial Registrar has effect as if it had been done or omitted by the Industrial Registrar. 47The section authorises the Deputy Industrial Registrar to exercise the functions of the Industrial Registrar as directed by the Industrial Registrar. On the basis that the Summons to show cause was issued by the Deputy Industrial Registrar, s 208(3) therefore operates to validate that action. 48According to the applicant, s 165(1) of the Act requires that a Summons issued, "for the purposes of the Act" be issued by the Industrial Registrar. Section 165(2) requires either a member of the Commission or the Industrial Registrar to sign "any such summons", or, "as otherwise provided by the rule of the Commission". 49The Court was informed that there are no rules which deal with the present set of circumstances. The Court notes that Rule 11 of the Industrial Relations Commission Rules 2009 (the 2009 Rules) makes provision in relation to a Summons to confer (Rule 11.1) and a Summons in proceedings under s 164 of the Act (Rule 11.2), neither of which have any relevance to a Summons issued under s 139(2). The Court also notes by way of completeness that Schedule 1 of the Uniform Civil Procedure Rules (UCPR), as applied to civil proceedings in this Court, specifically excludes the operation of Part 6 of the Rules which deals with originating processes including a Summons. 50In the Court's view, the combined effect of s 165 and s 208 of the Act provided the necessary authority to the Deputy Industrial Registrar to issue and sign the Summons under s 139(2) of the Act. This conclusion proceeds upon the premise that a Summons to show cause issued under that sub-section falls within the definition of a Summons under s 165 of the Act. It follows, that there is no necessity to regularise the proceedings or take any other action such as issuing a new Summons under s 139(2). 51The Court finds that the respondent has contravened the dispute order made by Kavanagh J on 15 December 2011. Order 52The respondent is fined $12,500 for the contravention of the dispute order made by Kavanagh J on 12 December 2011. 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. Decision last updated: 24 August 2012