Notification under s130 by Cfmeu of a dispute with Newcrest Mining Limited [2005] NSWIRComm 100 (31 March 2005)

Last Updated: 7 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Bluescope Steel v AWU and Anor [2005] NSWIRComm 99

FILE NUMBER(S): IRC 3223 and 3226

HEARING DATE(S): 07/03/2005, 08/03/2005, 09/03/2005

DECISION DATE: 05/04/2005

PARTIES:

PROSECUTOR

Bluescope Steel (AIS) Ltd

DEFENDANTS

Australian Workers' Union, New South Wales

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Mr R Warren of counsel

Solicitor: Mr D Lloyd

Blake Dawson Waldron

DEFENDANTS

AWU

Mr A Hatcher of counsel

Solicitor: Mr J Howard

Maurice May & Co

AFMEPKIU

Mr I Morrison

CASES CITED: BHP Steel v Australian Workers Union, New South Wales [2003] NSWIRComm 151

Briginshaw v Briginshaw (1938) 60 CLR 336

Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449; (1992) 67 ALJR 170

Sodeman v The King (1936) 55 CLR 192

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 66 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Boland J

Tuesday 5 April 2005

Matter No IRC 3223 of 2004

BLUESCOPE STEEL (AIS) PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, NEW SOUTH WALES BRANCH

Application by Bluescope Steel (AIS) Pty Ltd for summons to show cause under section 139 of the Industrial Relations Act 1996

Matter No IRC 3226 of 2004

BLUESCOPE STEEL (AIS) PTY LTD v AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES

Application by Bluescope Steel (AIS) Pty Ltd for summons to show cause under section 139 of the Industrial Relations Act 1996

JUDGMENT

[2005] NSWIRComm 99

1 These matters concern summonses issued by the Commission in Court Session on the application of Bluescope Steel (AIS) Pty Ltd ("the prosecutor") on the Australian Workers Union, New South Wales ("the AWU") and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("the AFMEPKIU") to show cause why the Court should not take action against these two registered organisations of employees in respect of alleged contraventions of dispute orders made by Commissioner Connor on 16 and 17 February 2004 under s 137 and s 138 of the Industrial Relations Act 1996 in matter No IRC 423 of 2004. The contraventions were alleged to have occurred on 16, 17, 18 and 27 February 2004. A summons was also issued on the Electrical Trades Union of Australia New South Wales Branch ("the ETU") but in the course of proceedings there was an agreement reached between the prosecutor and the ETU that the matter not proceed. That prosecution was formally discontinued.

FACTUAL BACKGROUND

2002 - 2003

2 The alleged contraventions related to alleged industrial action taken by employees of the prosecutor, members of the two Unions, on the dates aforementioned. It is necessary to consider the background to the industrial action. In March 2002, the prosecutor, through Mr Derek O'Callaghan, the former Vice President of the prosecutor's Packaging Products Department, met with Mr Andrew Gillespie, the Branch Secretary of the AWU's Port Kembla, South Coast and Southern Highlands Branch, to discuss the need to upgrade the Coil Handling and Packaging operations within the Packaging Products Department. The Department employed approximately 200 employees. The work in this Department involved the packaging of tin plate that had been rolled into coils and the distribution of the coils to customers. The process was largely manual and the prosecutor had become concerned at the amount of damage occurring to the coils, quality of packaging and the need to increase productivity. At the same time as these discussions occurred, employees in the Department, other than employees, members of the AFMEPKIU and ETU, who the prosecutor considered would not be affected by any changes, were advised of two projects being considered to achieve improvements in yield, safety, costs, delivery and throughput in the Department. The two projects were:

· The introduction of Automated Guided Vehicles (AGVs) for coil handling downstream from the ET lines.

· The rationalisation of wrapping facilities. One option being evaluated would involve the consolidation and upgrading of our wrapping facilities.

3 The employees were advised that no decisions had been made on the projects and that:

Should the commercial viability of these projects be established, we will hold further discussions with those involved on the implementation of the changes, and in particular, any impact on employees.

4 In July 2002 Mr Kevin Lewry, the prosecutor's Vice President, Operations for the Packaging Products Business, met with Ms Julianna Dickinson, an AWU organiser at the time who had responsibility for Packaging Products, regarding the Company's intention to enter into an agreement with Brambles Industries Limited ("Brambles"). Mr Lewry advised Ms Dickinson that the improvement proposal was subject to a suitable business case being completed. Mr Lewry provided Ms Dickinson with a copy of a written update on the proposal that was given to employees on 24 July 2002. Relevantly the update stated:

Our intent would be to enter into a long term Service Agreement with Brambles Steel Services, whereby:

i) Brambles would own and operate the AGV system, servicing the ET Line exit, both CPLs, N0. 1 NCR and the wrapping facility, and

ii) Brambles would consolidate the wrapping facilities such that there would be a single new Wrapping Line adjacent to the FWC, which would be extended to the north of the existing line, and would have the capability to fulfil all the coil wrapping requirements for PP.

The implementation timeframe of the projects would be 15 months from date of approval for the AGV's and 10 months from date of approval for the Wrapping Line.

5 The update indicated that employees would be affected and "every effort will be made to work with employees affected, in accordance with Award and EBA commitments, to secure positive outcomes for all concerned." A commitment was given to keep employees informed.

6 In February 2003, Mr Lewry wrote to each employee in Packaging Products advising them that the business case to complete an agreement with Brambles had been approved and that the next step was for the Company to finalise an agreement with Brambles. The note stated:

This project does have an impact on a number of people at the finishing end. I recognise this and know that there will be much more discussion with these people so that we can all reach the best possible outcome. Note that if this project proceeds, it will take up to 18 months to complete so there is plenty of time for discussion.

7 On 3 July 2003 Mr Lewry advised employees that the Company had signed a Service Agreement with Brambles. The letter stated:

Who Will be affected

Through the investigation work carried out in the initial stages of this project, 56 to 65 positions in the FWC Wrapping Line, #1 & #2 Coil Prep Lines and Cranes F492, F942 & F787 have been identified as being directly affected by this decision

What will happen from today

· Dale Finucane is appointed as the individual case manager for each of the 56 to 65 people in the business that are affected by this decision,

· Taking our people through a process with their future plans as they require it,

· We will collect questions and concerns sheets, so that we can provide you with the answers in the shortest time possible

8 The letter indicated that Mr Lewry would be regularly communicating with employees about the progress of the project. Prior to releasing the letter to employees Mr Lewry sent a "courtesy copy" to Mr Gillespie who indicated to Mr Lewry in a telephone conversation on 3 July that the prosecutor's position was unacceptable and that it was "not going to happen". Mr Lewry deposed in his affidavit read in the proceedings that Mr Gillespie said to him:

There will be industrial war for the next 12 months.

9 Annexed to Mr Lewry's affidavit was a file note dated 3 July 2003 of the crux of the conversation between he and Mr Gillespie. The file note indicated a meeting had been arranged between Mr Lewry and Mr Gillespie for the following day. Mr Gillespie did not keep the appointment. Consequently, Mr Lewry sent to Mr Gillespie a facsimile message enclosing copies of documentation that outlined:

(a) the rationale for the decision to enter into a Service Agreement with Brambles;

(b) a timetable for implementation;

(c) an estimate of the number of employees affected; and

(d) copies of previous correspondence sent out to employees and the AWU about the proposals.

10 A meeting eventually took place between Mr Gillespie and Mr Lewry on 9 July 2003. Mr Lewry deposed:

During the meeting Mr Gillespie agreed with the Company's rationale for entering into a Service Agreement but also made some demands. Mr Gillespie said words to the effect of:

The Company must look after the people who will be displaced otherwise life will become very difficult.

11 In the file note dated 9 July 2003 recording the conversation with Mr Gillespie, Mr Lewry stated:

Mr Gillespie indicated that if we could come to an agreement on that issue [employees would remain on Bluescope's payroll, managed by Brambles] then he had no great argument with what was proposed, provided we [Bluescope] were able to look after the people who were displaced. He added that if we could not agree, life would be very difficult. He would oppose the project, and we [Bluescope] would face significant disruption.

12 On 5 August 2003 Mr Brian Rooney, the Superintendent of Strip Finishing in Packaging Products, and Mr Lewry, met with Mr Gillespie and another AWU organiser, Mr David Hancock. Also at the meeting were four AWU delegates (Messrs Baritov, Borg, Volkanovski and Georgio). Mr Rooney took the minutes of the meeting. During the meeting, Mr Lewry deposed that Mr Gillespie said words to the effect that:

Brambles should not be the employer of employees in the new coil processing plant, but rather the Company [Bluescope] should be. If the Company does not agree then there will be a mass meeting organised by the Union.

13 On 11 August 2003 Mr Rooney wrote to Mr Gillespie informing him that Bluescope intended to progress the implementation of the Service Agreement with Brambles and that further consultation should focus on management of employees affected by this decision.

14 According to the evidence of Mr Rooney, during August and September 2003 he met with the AWU and Packaging Products employees to discuss the Brambles installation project. After these meetings he recorded the questions raised by individual employees in the one document and supplied written answers to those questions. In addition to this, he provided employee personal action plans and the assessment form that Bluescope proposed using for the selection of employees who would remain employed by Bluescope in Packaging Products.

15 On 26 September 2003 employees were invited to apply for positions on the Coil Preparation lines that would exist after the completion of the installation project. Employees were supplied with internal application forms and information about the proposed selection process.

16 On 7 October 2003 Messrs Gillespie and Hancock approached Mr Lewry and advised him that operators would not complete the application forms for the positions that would remain at the Coil Preparation Lines until further consultation was undertaken. Mr Lewry agreed that the further consultation could occur and that the applications could wait until consultation occurred.

17 On 22 October 2003 Bluescope notified the Industrial Relations Commission of a dispute with the AWU regarding a proposed stop work meeting to be held on 23 October. The dispute related to the Company's objection to the AWU convening a stop work meeting of all Packaging Products employees. Mr Hancock appeared for the AWU. At the conclusion of the compulsory conference, Commissioner Bishop issued a recommendation that the proposed stop work meeting be divided into 2 separate off-shift meetings to prevent any disruption to the Company's production. Subsequent to the recommendation being made it is apparent from the transcript of proceedings before Bishop C Mr Gillespie telephoned the Commissioner and advised her that the AWU would not comply with the recommendation. Consequently, Commissioner Bishop converted the recommendation into a direction.

18 Mr Lewry deposed that on 23 October 2003 the AWU convened one stop work meeting in breach of the Commissioner Bishop's direction. The stop work meeting lasted one and a half hours and resulted in a loss of 200 tonnes of steel.

19 On 28 November 2003, 4 December 2003 and 10 December 2003 Mr Rooney attended meetings with crew representatives and Mr Hancock from the AWU to discuss the proposed selection criteria and what comments or ideas the employees had regarding these. I note from the minutes of the meetings, a significant complaint by employees at the meetings was that after many years' service (34 in one case) they were being required to re-apply for the job they had been performing for years.

January 2004

20 On 5 January 2004 Mr Rooney wrote to Mr Hancock and acknowledged that consultation regarding the selection process for identifying which employees would be offered employment in the remaining Coil Processing Line had been exhausted and that the Company was ready to implement that selection process. The process was exhausted in Mr Rooney's view because he was unable to get agreement to Bluescope's proposals and that the AWU's reliance on seniority as a criterion was unacceptable.

21 On 6 January 2004 Mr Hancock wrote to the Company invoking the 14-day cooling off period. The relevant industrial instruments that applied to the Port Kembla Works were the BHP Steel (AIS) Pty Ltd - Port Kembla Steel Works Employees Award 2000 and the BHP Steel Port Kembla Operations Enterprise Agreement 2002. Clause 7 of the Agreement was entitled "Processes for introducing change which is significant in nature and for resolving associated issues and disputes." Clause 7.3.6 provided that where a consultation process had been exhausted and there was disagreement the proposed change could be implemented unless a party gave notice in writing that it sought a "cooling off period" that applied for 14 days. During the cooling off period the status quo was to prevail. Clause 7.3.7 provided that the change could be put into effect after the expiry of the cooling off period subject to any decision of the Industrial Relations Commission pursuant to s 130 of the Act. It was open to a party to seek an extension of the cooling off period.

22 On 13 January 2004, Mr Rooney wrote to Mr Hancock and advised him that Bluescope would maintain the status quo during the cooling off period and that it was also willing to have further discussions with the AWU and its members during the cooling off period if it wished. However, no request was made by the AWU for a meeting to take place.

23 On 13 January 2004 Mr Lewry deposed that he met Mr Hancock who said to him words to the effect:

Mr Gillespie has instructed me to organise a delegates meeting because Brambles are advertising Coil Handling and Packaging positions in the Mercury newspaper this weekend. The purpose of the meeting is to pass a resolution to go on strike when the adverts are published.

24 Consequently, Bluescope notified the existence of an industrial dispute, involving the prospect of strike action on Saturday 17 January 2004, which was listed for hearing on 15 January 2004 before Staunton J. Mr Gillespie for the AWU denied that any strike action was about to occur. On the basis of Mr Gillespie's statement that there would be no strike action that weekend Staunton J adjourned the proceeding.

25 Mr Lewry deposed that on 28 January 2004 he had a telephone discussion with Mr Gillespie. During the discussion Mr Gillespie was alleged to have threatened industrial action with words to the effect of:

There will be a big blue over the Brambles contracts. There will be a big stoppage and we will give you five minutes notice.

26 Mr Gillespie denied he said the words attributed to him by Mr Lewry and indicated he had said to Mr Lewry from time to time:

You are creating a big blue unnecessarily. All we want to talk about is the Brambles contract and our members doing the same work for Brambles.

10, 11 February 2004

27 On 10 February 2004, the AWU circulated a notice requiring all AWU members employed at the Tin Mill [where Packaging Products was located] to attend a gate meeting regarding the "outsourcing proposal" at 3.00pm on 11 February 2004. The notice was authorised by Mr Gillespie.

28 Mr Peter Talbot, the prosecutor's Vice President Human Resources, deposed that at approximately 3.30pm on 11 February 2004 Mr Gillespie advised him that the members of the AWU in the Packaging Products Department had commenced strike action. He said that Mr Gillespie said words to the effect of:

Packaging Products employees are on strike for 24 hours and are meeting again at 3.00pm. The Company will not get away with this. I will involve the hot strip mill and others. If this has to go to the Showground then so be it.

12, 13 February 2004

29 The strike was notified to the Industrial Relations Commission and came before Commissioner Connor on 12 February 2004. On that day, after hearing the parties, Connor C issued the following recommendation:

(i) That there be an immediate resumption of work by the employees following the meeting on Thursday, 12 February, 2004: and

(ii) That urgent discussions take place between the AWU, Bluescope Steel and Brambles concerning the position with the employees affected by the outsourcing of the coil handling and packaging operations; to assist in that process the AWU has lodged a separate s 130 notification directed against Brambles which has been referred to me.

30 At 3.00 pm on Thursday 12 February 2004, a meeting took place of striking employees who decided to return to work pending a further stop work meeting scheduled for 7.00 am, Monday 16 February 2004.

31 On Friday 13 February, in relation to the dispute notified by the AWU, Connor C made the following further recommendation:

1 All existing Bluescope operators involved in the coil handling and packaging operations to be taken over by Brambles should be given the opportunity to apply for the positions available in Brambles operations and Brambles should give preference to those existing employees in selecting operators who meet the necessary requirements of the positions available. I understand that some assessment and training may be necessary in that respect. I also understand that there are a limited number of positions available and that should be understood by the employees concerned.

2 Therefore Bluescope Steel retains responsibilities for the bulk of the employees who are surplus to requirements as a result of the new arrangements entered into with Brambles. Bluescope Steel must either (i) take all steps necessary to find suitable alternative employment for those employees (ii) alternatively, if no such position has become available by Thursday, 1 April, 2004, those employees will be eligible for redundancy. At this time, and until there is further discussions between the AWU and Bluescope Steel, I do not believe that it is appropriate to consider any forced redundancy.

32 Mr Gabriel Meena, President of the Springhill, Port Kembla Works of BlueScope Steel Limited, stated in his evidence that at approximately 4.00pm on 13 February 2004 he received a call from Mr Gillespie. During the telephone conversation Mr Meena said Mr Gillespie made reference to the strike action that had been taking place at the Packaging Products Department since 11 February. Mr Meena deposed that Mr Gillespie said words to the effect of, "Unless the matter is resolved over the weekend, the strike action will escalate ... to include the Hot Strip Mill, Plate Mill, then Slab Yard and then Springhill."

Monday 16 February 2004

33 A meeting occurred at 7.00am on Monday 16 February 2004 of Packaging Products operators at which shift mechanical trades employees, members of the AFMEPKIU attended. Mr Talbot said arising out of this meeting Packaging Products operators (members of the AWU) and shift mechanical trades employees (members of the AFMEPKIU) commenced strike action. At approximately 8.00am Mr Talbot said he telephoned Mr Gillespie and asked him about the meeting. Mr Talbot deposed that Mr Gillespie said words to the effect of:

There is strike action, with a further report back meeting at 3.00pm. If there is no resolution it will go a lot longer. Orders will not resolve it. The only way to resolve it is for the Company to guarantee that our people get jobs. Whether or not Brambles get the contract is another matter. We will take some legal steps.

34 The disputes that the previous week had been before Connor C were relisted before the Commissioner on Monday 16 February 2004 and a hearing took place at about midday. The prosecutor sought dispute orders. Mr Gillespie advised the Commissioner that the meeting earlier that morning had rejected his recommendations of the previous Thursday unanimously. It is clear from the transcript of the proceedings that the AWU's demand was that it wanted a guarantee that the 61 employees whose jobs were to become redundant in the Packaging Products Department would retain their employment.

35 In the course of the proceedings Mr Gillespie submitted:

Commissioner, I'll tell you. I'll cop the fines, I'll cop whatever, but this ain't going to happen. This is not going to happen.

Whatever's going to happen here, whatever's going to happen today. Now ... we are not going to tolerate what these people want to introduce. If we think its going to get bigger, then yes, Commissioner, it is going to get bigger, because there is ... quite a significant issue at stake in this particular matter which doesn't only affect the tin mill. It affects all of BHP.

36 After hearing the parties, the Commissioner made dispute orders pursuant to s 137 and s 138 of the Act at about 12.45 pm on 16 February in the following terms:

(i) That members of the AWU and the AFMEPKIU employed in its coil handling and packaging operations shall cease and refrain from taking any further industrial action and shall work in accordance with normal work requirements and their contracts of employment effective from 3.00 pm on Monday, 16 February, 2004;

(ii) The AWU, their respective officers and employees shall take all reasonable steps to ensure compliance with that order in para 1 above.

(iii) This order shall come into effect from 3.00 pm on Monday, 16 February, 2004 and shall remain in force until Tuesday, 30 March, 2004 unless, on formal application, it is varied or rescinded in the meantime.

37 Mr Gillespie was somewhat confused about just which meeting he did attend on 16 February. He certainly attended one at about 7.00am in company with Mr Hancock but that was before any orders had been issued. Mr Gillespie said the next meeting he attended was on 17 February. Later in his oral evidence in answer to a question from counsel for the prosecutor, Mr Warren, about the steps he took to comply with the orders on 16 February, Mr Gillespie said he sent Mr Hancock to the "gate" on Monday afternoon to have a meeting with the afternoon shift as they came in for work. Then later in his evidence, in re-examination, Mr Gillespie agreed with counsel for the AWU that at about 1.00pm or 2.00pm on Monday 16 February he convened a meeting of employees at "Northgate". The meeting involved Packaging Product employees and shift mechanical trades employees. Mr Gillespie said he explained to the employees the outcome of the proceedings before Connor C earlier that day and that the Commissioner had issued dispute orders. Mr Gillespie said he recited the orders to the employees present and deposed in his affidavit he said words to the effect:

What these orders mean is there is an order on you to return to work, that means the Commission is directing you to return to work without bans and limitations and work in accordance with the needs of the industry and if you don't there are consequences under the Act for the Union.

38 In cross examination Mr Gillespie agreed he did not direct employees to return to work but instead said, "I am making recommendations and recommending that you comply with that order". Mr Gillespie said he also advised employees at the meeting, "There’s a direction from the Commission and you are obliged to accept that direction and return to work”. Mr Gillespie stated that he received a hostile reaction from the employees who accused him, amongst, other things, of "taking backhanders from the Company". Mr Gillespie said he judged it inappropriate to issue directions that the employees comply with the dispute orders because of the angry mood of the meeting.

39 Mr Gillespie said the meeting ended with a vote to remain on strike and a resolution that there be a further meeting at 7.00 am on Tuesday 17 February. It was also resolved, according to Mr Gillespie, that he should advise employees in the Hot Strip Mill, Plate Mill and Slab Yard of the industrial action. Mr Gillespie said it was not he who called the meeting for the next day but the employees in Packaging Products. He said that after he had advised delegates in the Hot Strip Mill, Plate Mill and Slab Yard of the industrial action in Packaging Products they resolved to participate in the meeting on 17 February. Mr Gillespie said he advised the delegates of the orders and what they meant.

40 At about 4.00 pm on 16 February, according to Mr Talbot, he was present at a meeting when Mr Gillespie interrupted the meeting and said words to the effect of:

The employees remain on strike. There is a meeting again at the Visitors Centre at 7.00am tomorrow. It will involve the Hot Strip Mill, Plate Mill and Slab Yard.

41 Mr Gillespie said in his evidence that what he said to Mr Talbot was that the employees had resolved that the industrial action was going to extend to include the Hot Strip Mill, Plate Mill and Slab Yard and it was not until later that evening after he had advised the delegates in those areas of what was occurring in Packaging Products that the delegates resolved to join the meeting the following day.

42 Mr Hancock stated in his affidavit that he also attended the meeting on 16 February with Mr Gillespie but it was Mr Gillespie's evidence that Mr Hancock attended a later meeting on 16 February at about 3.00pm of about a dozen employees who had come in to work on the afternoon shift. Mr Hatcher of counsel for the AWU submitted that Mr Hancock was confused about this issue and that:

...when he gave his account in his affidavit about the meeting at 3pm on the 16th, he got confused with an event that occurred at 7am on the 17th and when he was cross-examined about that he realised what he had done. So when your Honour looks at his affidavit which describes what occurred at this meeting, that is to be taken as events that occurred on the 17th at 7am.

43 The difficulty with this, of course, is that if I accept it Mr Hancock then gives two different versions of what occurred at the meeting at 7.00am on 17 February. I will deal with this conundrum under the next heading.

Tuesday 17 February 2004

44 A meeting of employees did take place at about 7.00 am on Tuesday 17 February. Mr Gillespie and Mr Phillips were in attendance at the meeting. Mr Gillespie said in his evidence the mood of the meeting was angrier than that he had encountered the previous day. Nonetheless, Mr Gillespie's evidence was he said to the meeting, "I strongly recommend you comply with the Commission's orders and you return to work." Mr Phillips corroborated Mr Gillespie's version of events. The meeting resolved that a meeting of "combined steel industry union delegates" be convened that afternoon and that a mass meeting of all steel works employees be held the next day, Wednesday 18 February 2004. It is evident that the meeting also decided to take strike action and after the meeting there was no return to work by Packaging Products operators and shift mechanical trades employees. In addition, Hot Strip Mill and Plate Mill employees joined in the strike.

45 Mr Hancock gave evidence that he attended the meeting with Mr Gillespie on 17 February although as I have noted, Mr Hancock was confused about just which meeting he did attend. He gave evidence that he attended a meeting on 16 February 2004 but counsel for the AWU urged me to regard the evidence of Mr Hancock relating to that meeting as evidence relating to the 7.00am meeting on 17 February. Mr Hancock did not attend three meetings on 16 February, that is at 7.00 am with Mr Gillespie, at about 1.00pm or 2.00pm with Mr Gillespie and another meeting at 3.00 pm that day by himself. There were only two meetings of AWU members on 16 February - one at 7.00am and one in the afternoon after Connor C had made his dispute orders.

46 If I were to accept Mr Hatcher's explanation, undoubtedly made on instructions, as to Mr Hancock's confused state, it would mean there are two versions in Mr Hancock's evidence as to what occurred at the meeting of 17 February. For instance, Mr Hancock said in relation to the meeting he said he attended on 16 February (which counsel said should be regarded as evidence of what occurred on 17 February):

At that meeting Andy Gillespie reviewed the proceedings before the IRC on that date and the fact that Dispute Orders had been issued. Mr Gillespie recited the Dispute Orders and confirmed that no industrial action could be taken or further proceedings could be commenced against the Union. Mr Wayne Phillips then addressed the meeting and recited from the Dispute Orders and again confirmed that industrial action would result in his Union being in breach of Dispute Orders.

The members were very angry and Mr Gillespie was doing his best to convince them to leave the matter to him and the Union to try and negotiate the whole Brambles matter with the Company. Mr Gillespie ended his part of the meeting by again explaining that the Dispute Orders were in place, that there should be no industrial action and the outsourcing issue with Brambles should be left with him and the Union to negotiate with the Company.

It was not a very pleasant meeting as some of the employees were yelling out statements from the floor like "You've gone soft, the Company's got it all over us, you're receiving backhanders from the Company".

At the meeting on 16 February 2004 the members took matters into their own hands and motions were moved for the strike to continue which were seconded. Notwithstanding both the attempts of Mr Gillespie and Mr Phillips the members voted to maintain industrial action.

Mr Gillespie continued arguing with the employees reminding them of the seriousness of the Orders and that they had to return to work. Again, the members maintained industrial action notwithstanding Mr Gillespie and Mr Phillips' attempts to have them return to work.

The meeting eventually ended and the members started walking away from the meeting.

The final motion put to that meeting was that there would be a further meeting held at the same venue, that is the Northgate carpark the next morning at 7:00am. It was moved by the members taking industrial action and not Mr Gillespie or Mr Phillips.

47 In relation to the meeting on 17 February 2004 Mr Hancock deposed:

Both Mr Gillespie and myself attended the meeting at 7:00am on 17 February 2004 at the Northgate carpark. I attended with Mr Gillespie in our capacity as AWU representatives. More company employees attended the 17 February 2004 meeting than attended the 16 February 2004 meeting.

At the 7:00am meeting Mr Gillespie again addressed the Company employees. At that meeting he said words to the effect:

As I said yesterday, there are Dispute Orders in place that do not allow any form of industrial action, that is work bans, strikes, etc. You have to return to work as we will be back in the Commission fighting a case about breaching Dispute Orders.

In addition to Mr Wayne Phillips attending for the AMWU, Mr Tomlins for the ETU also attended the same meeting.

Mr Phillips read the same Orders and also recommended compliance with the Orders and that there be a return to work immediately.

Like the meeting on 16 February 2004, the members were very angry and a lot of their anger was directed at our Union with statements being made in words to the effect "You're all soft, you're obviously taking backhanders from the Company, we're losing our jobs and you're doing nothing about it, what's the using of being in a fucking Union if we're not going to get any help from it".

48 It may be seen that in his affidavit Mr Hancock distinguished, quite clearly, between the two meetings, making reference in his description of the meeting of 17 February to what occurred on 16 February. If I were to accept Mr Hatcher's explanation I would have to come to the conclusion that Mr Hancock concocted his evidence about attending the meeting on 16 February.

49 My assessment of the evidence is that Mr Hancock attended the meeting in the afternoon of 16 February (somewhere between 1.00pm and 3.00pm) together with Mr Gillespie and again with Mr Gillespie at 7.00am on 17 February. Later in the afternoon of 17 February Mr Hancock attended a meeting of afternoon shift employees who had responded to telephone calls from Bluescope managers to return to work. Where Mr Hancock, and for that matter Mr Gillespie, was confused was in relation to the meeting on 17 February in the afternoon attended by Mr Hancock with a small number of employees. The confusion of these two officials as to certain key events strengthens the view I express later in this decision as to which evidence is to be preferred.

50 At about 9.25am on Tuesday 17 February the AWU's Wollongong office, on Mr Gillespie's instruction, booked the WIN Stadium, otherwise known as the "Showground", for a meeting of employees at 7.30 am the following day. Whenever a mass meeting of employees of the Steel Works is to be held it usually takes place at the Showground because it is the only venue with the necessary capacity. Mr Gillespie said that the Showground was booked "as a fall-back position given the mood of the morning meeting of 17 February."

51 Mr Talbot deposed that:

At approximately 9.30am Mr Gillespie was interviewed by Radio Illawarra. During the radio interview Mr Gillespie confirmed that further industrial action was planned and that a plant wide stop work meeting was scheduled for the next day. Mr Gillespie stated words to the effect of:

There's a delegates meeting been called by all three steel unions today at 12 o'clock and with the recommendation from the mass meeting this morning of all Tin Mill, Hot Strip and basically Flat Products Area to call a mass stop work meeting tomorrow morning at 7.30am at Wollongong Showground.

52 A tape of that interview and a copy of the transcript of that interview were exhibited to Mr Talbot's affidavit.

53 The prosecutor and Bluescope Steel Limited notified disputes to the Commission and these notifications came before Connor C at about 11.15 am on 17 February. After hearing the parties Connor C made a "supplementary decision" and issued amended dispute orders in accordance with the terms proposed by the prosecutor. The orders were in the following terms:

1. The AWU, the AFMEPKIU and the ETU, their respective officers and employees and their respective members employed by either:

(a) Bluescope Steel (AIS) Pty Limited at its Port Kembla steelworks; or

(b) Bluescope Steel Limited at its Springhill works, must immediately cease and refrain from taking any form of industrial action, including any strike, stop work meeting, ban, limitation or restriction on the performance of work;

2. The AWU, the AFMEPKIU and the ETU and their respective officers and employees must immediately cease and refrain from organising, encouraging or inciting any industrial action (including any strike, stop work meeting, ban, limitation or restriction on the performance of work) contrary to the order in para 1 above.

3. The AWU, the AFMEPKIU and the ETU an their respective officers and employees must take all reasonable and necessary steps to ensure that order in para 1 is complied with, including, but not limited to:

(i) advising their members of these orders by no later than 3.20pm on Tuesday, 17 February 2004; and

(ii) convening a meeting by 3.20pm on Tuesday, 17 February, 2004 of all members who are engaging in industrial action and directing them to comply with the order in para. 1.

4. This order shall come into effect on and from 3.20pm on Monday (sic - Tuesday), 17 February, 2004 and shall remain in force until Tuesday, 30 March, 2004 unless, on formal application, it is varied or rescinded in the meantime.

54 Mr Gillespie and Mr Phillips had left the Commission proceedings prior to the Commissioner making the orders but both officials were aware of the Commissioner's intention and the terms of the proposed orders.

55 Mr Talbot deposed that:

The signed supplementary decision and further dispute orders were then served on the Sydney offices and Wollongong offices of the AWU, AFMEPKIU and ETU at the following times:

· AWU Sydney office – 2.26pm

· AWU Wollongong office – 2.02pm

· AFMEPKIU Sydney office – 2.20pm

· AFMEPKIU – Wollongong - 3.56pm

· ETU Sydney office – 2.13pm

· ETU Wollongong office – 2.10pm

56 Mr Talbot made telephone contact with Mr Gillespie at about 2.15 pm on 17 February and asked him what was the position regarding the dispute orders. Mr Gillespie's response according to Mr Talbot was:

The meeting this afternoon is not going to happen. It's unrealistic. It's 2.15pm. The first opportunity is 7.00am tomorrow morning with everybody.

57 Mr Talbot also said in his evidence that at 2.25pm he telephoned Mr Phillips' mobile phone and left a voicemail message to the effect of:

What is the position regarding Commissioner Connor's order that you call a meeting of your members and secure a resumption of work by 3.20pm.

58 Mr Phillips had not been in a position to respond because he was engaged in enterprise negotiations in relation to the Appin Colliery.

59 In the meantime, Mr Shaun Towers, Process Expert Hot Coil Processing and Despatch, had been engaged in calling employees to advise them of the Commissioner's orders. Mr Towers deposed:

At approximately 1.30pm on 17 February 2004 Max Bland the Manager of HCPD [Hot Coil Processing Department] instructed me and Alex Ridolfi, another supervisor to telephone all day shift employees employed in HCPD and inform them that the Industrial Relations Commission of New South Wales ... had ordered that employees return to work by 3:20pm. Mr Bland also gave me a copy of the Commission's orders.

Mr Ridolfi and I divided the telephone numbers of the 24 employees rostered to work on day shift in HCPD. I then telephoned approximately 12 employees and told them about the Commissions orders.

At approximately 3.20pm on 17 February 2004 I went out into the HCPD to check who had turned up for work. I took a (sic) copies of the orders Mr Bland had given me and gave copies to employees that had arrived at work.

By approximately 4.00pm on 17 February 2004 I had ascertained that the despatch crew had arrived for work at North Despatch, some crane drivers had arrived and some Skin Pass Mill employees had also returned to work. Of the HCPD employees that had been telephoned and told to return to work 12 employees presented themselves ready for work.

At approximately 4:10pm on 17 February 2004 I was walking back to my office when I noticed Mr Hancock from the AWU talking to a group of employees at the Skin Pass Mill. I recognised three of the employees as Mr Babaroski, an operator 4 in the HCPD, Mr Goldsmith, an operator 5 in the HCPD and Mr Manfiotto, an operator 5 in HCPD. Mr Bland was also present and I decided to walk over and see what was being discussed.

As I approached the meeting I then heard Mr Hancock say words to the effect of:

We broke the commission's orders yesterday and we are doing it today as well.

Mr Bland then responded to Mr Hancock by stating words to the effect of:

The Industrial Relations Commission requires a return to work.

Mr Bland then showed Mr Hancock the Commission's orders which he had in his hand.

Mr Hancock then turned to the employees and stated words to the effect of:

I can't tell you to go home, but I want to tell you all that you are all on strike.

Mr Bland then spoke to the employees and said words to the effect of:

There is work for those who want to stay in accordance with the Commission's orders. It is your decision about what to do.

Mr Hancock then repeated his earlier statement with words to the effect of:

I can't tell you to go home, but I want to tell you all that you are all on strike.

He then added words to the effect of:

Until the meeting at 7:00am tomorrow.

Mr Bland then repeated his earlier statement with words to the effect of:

There is work for those who want to stay. It is your decision about what to do.

Mr Bland and I then left the meeting and went back to our office.

At approximately 4.40pm I went back to the Skin Pass Mill to see what had happened at the end of the meeting. When I got there Mr Hancock and the employees had gone. I then checked the area and found that all of the employees had gone home. I went back to my office and told Mr Bland what I had observed.

60 Mr Towers made a file note of the foregoing at about 5.00 pm that day. The file note was in evidence. Mr Bland corroborated Mr Tower's version of conversations and events. Mr Bland also stated:

By approximately 8.30pm on 17 February 2004, when I left to go home, all production employees in the HCPD, Roll Shop and Hot Strip Mill had ceased working. When I arrived at work at approximately 8.00am on 18 February 2004, no employees were at work at the HCPD, Roll Shop or Hot Strip Mill. At approximately 9.30am I observed employees arriving at work.

61 Mr Hancock's evidence about the events of the afternoon of 17 February differed considerably from that of Mr Towers and Mr Bland. He said he attended the "B2 carpark" at 3.00pm. In attendance were approximately eight to ten employees. He said he explained to the employees that the Commission had issued amended dispute orders advising them that they must return to work. He said that employees asked him, "Where's everyone else, why should we go back to work if no one else is?" Mr Hancock said he replied:

You go back to work and you work at a safe manning level. The reality is that we haven't been given much time to contact everyone, but its important that anyone else you speak to that doesn't know about these Orders or cannot be contacted, has to return to work. Any further problems please call me.

62 In response to the evidence of Mr Towers and Mr Bland that he said words to the effect, "I can't tell you to go home, but I want to tell you are all on strike", Mr Hancock said the words used were, "I'm not going to tell you to go home, I'm here to tell you to work in a safe manning level". Mr Bland and Mr Towers both denied there was any reference in the conversation to safe manning levels.

Delegate's meeting - 17 February 2004

63 In the late afternoon of 17 February a meeting of combined steel union delegates took place at the AWU office in Wollongong. Mr Gillespie deposed that:

At that meeting the combined steel representatives, that is myself for the AWU and Mr Wayne Phillips for the AMWU [AFMEPKIU] distributed to the steel union delegates copies of the Dispute orders. Again, I and Mr Wayne Phillips of the AMWU reviewed the Dispute Orders and we both indicated the necessity for a return to work in compliance with the Dispute Orders.

64 In the cross examination of Mr Gillespie by counsel for the prosecutor as to what occurred at the delegate's meeting the following exchange took place:

Q. The process of that was, prior to that there was a delegates' meeting in your office?

A. Yes, there was.

Q. You did not say to the delegates: You must not have this stop work meeting; did you?

A. What we said to the delegates was: Here is an order from the Commission, there is what the Commission has ordered. They have ordered in fact there be no stop work meeting, no further stoppage; and we debated the issue, the request of the order and the recommendations from both myself, Wayne Phillips and Warwick Tomlin from the ETU who chaired the meeting; the orders be complied with. That is what happened at the delegates' meeting and that is what we said. I can't do any more than debate the issue and recite the orders and what the orders mean. Obviously emotions were building up with the dispute, given what the accusation was about. Then there was not going to be any clear, in my view, thinking from a lot of people in relation to this particular issue. That is the view of not only myself but others. The issue clearly was the delegates' meeting. It was put by all three unions, the question of the orders. As a matter of fact I sure I Photostatted enough copies to give to everybody to make sure everybody understood the orders and what the Commission said, they now incorporate the Metal Workers Union. The issue clearly was, yes, we did put that to the union and we did suggest it, it was more than a suggestion to the delegates certain things ought to happen and to go back with the recommendations to the tin mill and the steelworkers.

Q. You as an official of the union were directed by the Commission to do all that was reasonable to effect a resumption of work, weren't you.

A. Yes.

Q. A resumption of work?

A. Yes.

Q. In part of your affidavit, Exhibit 1, you recite, for example, in paragraph 23: "I paraphrased the order and said words to the effect 'this is an order of 16 February. What these orders mean is that there is an order on you to return to work. That means the Commission is directing you to return to work without bans and limitations and work in accordance with the needs of the industry. If you don't there are consequences under the Act for the union.'" That is what you say you did?

A. I did, Yes, correct.

Q. You didn't say: "What's more, I am directing you to resume work"?

A. No, I didn't use the words "I am directing anybody to work." I used the words: "I am making recommendations and recommending that you comply with that order." The question of whether or not I gave a direction at a meeting - in that particular meeting at this particular time was no place to start giving directions to anybody, so the issue clearly was the debate about the orders and the issue was in front of you, never mind whether I had the authority to direct anybody or not. The issue was about debating the meeting with the members, the employees of Bluescope about the issue of what the orders contained - what it contained and their observation of that order; that is what was said.

Q. You said never mind whether or not you had the authority to direct or not, you are saying you didn't?

A. I didn't think it was appropriate at that time.

...

Q. Go back to my question then. At the delegates’ meeting on the 17th, the afternoon of the 17th, you had orders in your hand from Commissioner Connor directing your members and you to cease industrial action and for you to not encourage, incite industrial action, any stop work meeting, bans or limitations and the like and that you and your officers must take all reasonable and necessary steps to ensure the order in paragraph 1 is complied with. There are two issues there. You had an order binding all of those delegates that were at the meeting, did you not?

A. I did.

Q. You weren’t to encourage or incite any industrial action?

A. Nor did we.

Q. With respect, Mr Gillespie, is not organising a meeting the very next day, a stop work meeting, encouraging or inciting industrial action?

A. No it is not.

Q. Mr Gillespie, there were orders binding on the delegates that were present at that meeting and you did not say to them, did you, “We have got orders on all of us. You have to get in touch with your members and get them back to work pronto”? You didn’t say that did you?

A. I would not have used those words.

Q. You didn’t use anything like those words did you?

A. The words I used were - we gave a copy to each delegate of the order. We then went through the order and we had a lengthy debate about the orders. The orders were put to the delegates and put on the basis there would be a resumption of work and compliance with the orders and directions of the Commission. That is what was put to the delegates. The dispute had been gone through. The orders were put to the meeting again. They were also put by Mr Tomlins and Mr Phillips. The issue clearly was, yes we did say to the delegates that they should comply with the order and directions. For you to suggest anything else is a nonsense.

65 Leave was later given to counsel for the AWU to recall Mr Gillespie to clarify certain evidence regarding the delegate's meeting. In the examination in chief the following exchange occurred:

Q. I take you to paragraph 39 of that affidavit?

A. Yes.

Q. See, in the last sentence of paragraph 39 you say this: "Again I and Mr W Phillips of the AMWU reviewed the dispute orders and we both indicated the necessity for a return to work in compliance with the dispute orders". See that?

A. Yes.

Q. Mr Gillespie, to the best of your recollection, what did you actually say to the delegates in relation to those dispute orders and in answering that question can I ask you, so far as you can, to give your answer in terms of direct speech. That is, the words you actually used to the delegates, to the best of your recollection?

A. I gave them a copy of the despite orders. I asked them to read it as they came in. I gave the dispute orders to the employees and delegates. I went through it and said again to them that "These are the dispute orders. You have to comply with them, whether you like it or not".

Q. Now, you just said you went through the orders with them I think you said, is that right?

A. Correct.

Q. What did that involve?

A. That involved reading out the orders to the meeting and what the orders contained and what they meant and the direction of the Commission.

Q. And you said to them words to the effect of, "You have to comply with them whether you like it or not." What happened after that?

A. I think I said, "That is a fact of life, whether you like it or not, you have to comply with them. We tell you you have to comply with them." That is when the debate really heated up somewhat.

Q. And when you are referring to the debate, is that a stage at which the delegates themselves began to express their opinion about the matter?

A. Yes, they did. And Mr Phillips also supported what I had previously said.

WARREN: With respect, this is going beyond the original --

HATCHER: Q. I am not concerned, at this stage, with what Mr Phillips said during the course of the subsequent debate. Did you have anything further to say about the subject matter of compliance?

A. I made it abundantly clear during the debate with each person debating the issue with me personally. I said, "The orders are there. Directions of the Commission. Not recommendations". And I made the distinct difference between a recommendation and direction or order. And they have to be complied with, that is what they are there for. "These are the reasons why you have to comply with them".

66 In the ensuing cross examination the following exchange occurred between Mr Gillespie and Mr R Warren of counsel for the prosecutor:

WARREN: Q. Mr Gillespie, you said that you explained to your delegates that there was a distinction between a recommendation and a direction?

A. Yes.

Q. When you compiled your affidavit in paragraph 61, you said in that affidavit in paragraph 61, you said you said to the delegates, "The Commission has put orders on us to return to work"?

A. I have not got a 61, there is a 49.

Q. I am sorry, I will rephrase that. You were in court when you heard Mr Phillips say that and I quote, "We have an obligation to put them" - being the orders?

A. Yes.

Q. You also were in the Commission when his Honour asked Mr Phillips a question as to what he actually said, in 63 of Mr Phillips - it is in Mr Phillip's affidavit. I am sorry, you were not in court. Mr Phillips also said in response to a question from his Honour with respect to that meeting that, and I quote: "Orders or recommendations, I am now putting them to you". Mr Phillips did not say that either you or he said, "You have to comply with them, whether you like it or not". Mr Phillips would be mistaken?

[objection]

Q. Mr Phillips gave two accounts as to what was said. He said, "We have an obligation to put them" - he was referring to the orders. And he said, "We then put them". He also said, "Orders or recommendations, I am now putting them to you". He said that he then put them to them. You are saying something quite different. You are saying you said, "You have to comply with them, whether you like it or not." Are you suggesting Mr Phillips is wrong in what he said?

A. That is what Mr Phillips said; that is not what I said.

Q. You agree Mr Phillips said that. It is not what you said?

A. Mr Phillips said a lot of things on that particular day and so did I but what I said --

[objection]

WITNESS: There was a lot of things said on that day and there was a lot of things said in the delegates' meeting. Mr Phillips would have said what he said; I would have said what I said. And the issue clearly is, during a very heated debate in the room, and I had to make sure my office staff went home before we commenced. The very heated debate, for a number of reasons, because we were in a rented temporary premises at that time, your Honour, and it was getting fairly heated and aggressive. I sent my office staff home on the day. And a lot of things were said in relation to the position of the delegates. And yes, I did say, "Whether you like it or not, it is a direction from the Commission" and not once. But arguments with individuals, some of them not even my delegates but some Mr Phillips' delegates. So, in opening the delegates' meetings, perhaps Mr Phillips said that at the delegates' meetings. We certainly went through the orders a number of times and a number of clauses. We have people who, they think they are bush lawyers. We have to tell them what we think the law is and what orders are and the difference between a recommendation and an order.

WARREN: Q. Mr Gillespie, you have just given another version as to what was said.

A. No, I have not.

Q. You then said, "Whether you like it or not, it is a direction from the Commission"?

A. That's correct.

Q. Whereas you earlier said to Mr Hatcher, addressing it to your members, "You have to comply with them whether you like it or not". It was a combined delegates' meeting. It was a combined delegates' meeting, there were members there from the ETU, the Metal Workers and AWU. Nowhere in your affidavit do you say at any stage when you are recounting any of the conversations you had with your delegates or with your members post both orders being given, that you directed either your delegates or your members that, "You have to comply with them, whether you like it or not", do you?

[Objection]

Q. Mr Gillespie, why did you not, in your affidavit, come forward with the words in paragraph 39 that you have just now given in evidence? Why do you now say, why are you now saying that you said to your delegates, "you have to comply with them"?

A. I think, in terms of the terminology, I have put it in the affidavit in 39, "again Mr Phillips of the AMWU reviewed the dispute orders, both indicated necessity to return to work and compliance with the dispute orders". I think we did that but that is a rather bland explanation of what happened during the meeting and I think, going verbatim, I didn't think I was required to go verbatim, but the issue clearly is on that particular night it was rather a heated debate and there was a lot of things said by a lot of people.

Q. Why didn't you direct them to, Mr Gillespie? Why didn't you direct them to comply with the orders?

A. I don't think making directions at that stage would have helped the matter one little bit.

Q. It was within your power to, wasn't it?

A. I don't think directing would have --

Q. Answer my question. It was in your power to, wasn't it?

A. In consideration of that, I don't think at that particular time it was within my power to direct people, at that point in time.

Q. I suggest to you, Mr Gillespie, you are making up a conversation that you now assert you had with your delegates late in the piece, at the end of cross-examination?

A. I reject that out of hand.

Q. I suggest you are saying that to suit the cause of your case?

A. I reject that out of hand.

Q. And I suggest you are saying that is contrary to what Mr Phillips said?

A. I reject that out of hand.

67 Mr Phillip's affidavit evidence in relation to what was said at the delegate's meeting by himself and Mr Gillespie and Mr Tomlins was that:

I informed them [the delegates] that the orders [of Connor C] required a return to work and recommended in the strongest possible terms a resumption of work. I read the orders out and said words to the following effect:

The Commission has put orders on us to return to work. I strongly recommend that these orders be complied with and there will be an immediate return to work.

This recommendation was unanimously rejected by the delegates present. I felt as though, I put the recommendation in a forceful and strong manner.

Both officials [Gillespie and Tomlins] on behalf of their unions indicated that the employees were obliged to return to work. I supported them in there (sic) submission to the employees.

The delegates determined to call a mass meeting for the morning of Wednesday 18 February 2004.

68 In relation to Mr Phillips' members employed by the prosecutor, I am satisfied on the evidence that it was established that those employees would not be affected by the proposed changes in the Packaging Products Department. Mr Rooney advised Mr Phillips orally of this on 13 February and in writing on 17 February. Mr Phillips advised members of this at one meeting he attended (17 February) but it seems that by that time his members had decided to support the AWU and Mr Phillips obviously did not see any point - because he took no contrary action - in insisting that his members not participate in any industrial action because of what he perceived to be the angry mood of the employees and the tradition of solidarity that appears to prevail amongst members of the AWU and AFMEPKIU employed by the prosecutor. The AFMEPKIU was not subject to the dispute order made on 16 February. I should add, however, that if Mr Phillips had been more active earlier than he was in advising his members they were not affected by the outsourcing and had been more forceful in that respect, it may have been the case that his members would not have joined the industrial action.

Wednesday 18 February 2004

69 A mass meeting of employees of the prosecutor and Bluescope Steel Pty Limited took place at 7.30 am on Wednesday 18 February at the Showground. Mr Talbot said in his evidence:

At approximately 7.00am on 18 February 2004 the AWU, AFMEPKIU and the ETU convened a stop work meeting for all employees of the Company and BlueScope Steel Limited (ie all Port Kembla Steelworks and Springhill Works employees). The meeting lasted approximately 1.5 hours and at approximately 9.00am I was advised by Mr Gillespie that the employees had returned to work.

70 Mr Gillespie's affidavit evidence regarding the meeting on 18 February 2004 was that:

...the AWU did not convene a stop-work meeting as alleged by the Company. This was a meeting at the initiative of the employees. I addressed the mass meeting at the Wollongong showground on 18 February 2004. In addressing the mass meeting there were approximately two thousand (2,000) employees in attendance. I reviewed the entire recent history, that is the Orders issued on 16 February 2004 and again the amended Orders on 17 February 2004. I summarised the meetings held at Northgate the resolutions made at the Northgate meetings along with the delegates resolutions made in the AWU office in Wollongong on the evening of 17 February 2004.

I said to the employees in words to the effect:

"We recommend that a resumption of work take place in compliance with the Orders and the amended Orders from the New South Wales Industrial Relations Commission."

That resolution was supported both by Mr Phillips of the AMWU and Mr Tomlins of the ETU and after a heated debate our recommendation was put to the mass meeting and narrowly carried for a return to work. There was a return to work approximately half an hour after completion of the mass meeting, which would have been about 8:30am to 8:45am.

71 It was Mr Hancock's evidence that:

Prior to the IRC proceedings on 17 February 2004 I was aware that the employees wanted a showground meeting to proceed on 18 February 2004. Our attendance at that meeting was going to be a last ditch effort to persuade the employees that were on strike to go back to work to ensure compliance with Dispute Orders issued originally on 16 February 2004 and amended again on 17 February 2004.

I am aware that some employees did return to work on 17 February 2004, but a number continued to participate in industrial action.

The meeting proceeded at 7:00am on 18 February 2004 at the Wollongong Showground. Andy Gillespie commenced the meeting as he had commenced meetings on 16 February 2004 and 17 February 2004 by referring all employees to both the 16 February 2004 Dispute Orders and the amended Dispute Orders of 17 February 2004 and instructing the employees that they must return to work. Also at the same meeting was Mr Wayne Phillips of the AMWU and Mr Warwick Tomlins for the ETU. Both Mr Phillips and Mr Tomlins made similar addresses to Company employees as Mr Gillespie did.

It was resolved by the employees that there be a return to work and that occurred on 18 February 2004.

The return to work occurred at the insistence of the AWU, the AMWU and the ETU.

The meeting was probably more conciliatory on 18 February 2004 than the previous meetings where there was no return to work. Absent on 18 February 2004 were the allegations from the floor that were made against the AWU on previous occasions.

72 Mr Phillips said in his evidence:

A mass meeting was held of all striking employees at 7.30 am on Wednesday 18 February 2004. This meeting was held at the Wollongong showground.

A report was given by Mr Gillespie, Mr Tomlins and I. We put a recommendation to the members that there be an immediate return to work.

After some debate from the members present, this was agreed to and the members accepted the recommendation to return to work.

73 The Court viewed a video tape recording. In relation to the recording Mr Trent Sebbens deposed:

I am a solicitor employed by Blake Dawson Waldron, solicitors for BlueScope Steel (AIS) Pty Ltd (the Company), the Prosecutor in these proceedings.

I have been provided by the Company's External Affairs Department with a video tape recording part of the WIN Television 6.00pm nightly news broadcasts for Monday 16 February 2004, Tuesday 17 February 2004 and Wednesday 18 February 2004. Exhibited to me at the time of swearing this affidavit and marked "TDS 1" is the video tape. It is labelled "WIN TV 16, 17 & 18 February Union Dispute".

The video tape contains the following footage:

(a) A stop work meeting of employees of the Company being addressed by Mr Andy Gillespie of The Australian Workers' Union, New South Wales (the AWU).

(b) An interview with Mr Wayne Phillips, an official from the Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union, New South Wales Branch.

(c) Mr Phillips and Mr Warwick Tomlins, the Assistant Secretary of the Electrical Trades Union of Australia, New South Wales Branch walking into the Industrial Relations Commission of New South Wales at Wollongong. Behind Messrs Phillips and Tomlins are Mr Dave Hancock and Mr Darryl Anderson, both officials, of the AWU, and Mr Marek Kuczwal an employee of the Company and AWU delegate.

(d) Mr Gillespie entering the Industrial Relations Commission of New South Wales at Wollongong.

(e) A stop work meeting of employees of the Company being addressed by Mr Phillips.

(f) A stop work meeting of employees of the Company being addressed by Mr Andy Gillespie.

(g) An interview with Mr Gillespie.

I am able to identify the people I have listed above because I had dealings with each of them when I was previously employed by the Company as a Human Resources Officer from January 1995 to February 2003.

74 I note that in proceedings involving other matters before Grayson DP on 19 February 2004, in cross examination Mr Gillespie agreed that:

· A strike occurred involving Packaging Products employees on 16 February 2003 and that there was no return to work despite orders by Connor C that the striking employees return to work no later than 3.20 pm that day.

· There was a meeting of the striking employees at 7.30 am on Tuesday 17 February 2004 and it involved employees of the Hot Strip Mill, Plate Mill and Hot Coil Packaging Department.

· A stop work meeting occurred of all steel workers at 7.30 am on Wednesday 18 February 2004.

23, 27 February 2004

75 Mr Talbot said that on 23 February 2004 Mr Gillespie advised him, Mr Lewry and Mr Rooney that he intended holding a stop work meeting of Coil Preparation Line ("CPL") employees within two weeks. In the afternoon of 23 February Mr Talbot said he was approached by Mr Hancock requesting a conference room on site to enable the AWU to hold a stop work meeting with CPL employees on Friday 27 February 2004. Mr Talbot said he declined the request. Mr Rooney said he also declined the request.

76 Mr Hancock rejected Mr Talbot's version of the conversation on 23 February and said his words were to the effect, "Can we have an on-site conference room so I can give a report-back to the coil prep line employees on Friday, 27 February 2004?" Mr Hancock said he was intending to have a meeting in between shifts.

77 A meeting subsequently took place of Numbers 1 and 2 Coil Preparation Line employees on 27 February and between 30 and 40 minutes production time was lost resulting in the loss of 5 tonnes of steel production. Mr Hancock said that he attended the meeting but did not organise it. He said:

I became aware that it [the meeting] was on and in my capacity as the Organiser I attended it. I attended this meeting as Mr Rooney declined what I thought was my reasonable request that I have a meeting to discuss the Brambles issue with about four (4) of the crew members. The employees took matters into their own hands and attended the meeting. I was telephoned and was advised the meeting was proceeding and it was in that capacity that I attended. At that meeting I addressed the members and said words to the effect:

"There are Orders in place, you must all return to work."

The members who attended the meeting then returned to work.

Evidence - contemporaneous notes

78 In relation to the evidence in the proceedings, a feature of the prosecutor's case was that virtually every witness had made notes of relevant conversations with union officials. These notes were either taken at the time of the conversation, or committed to writing within a matter of hours of the conversation or in a couple of cases within days of the conversation. The notes were produced in evidence. In contrast, no notes were produced in the Unions' cases and the witnesses relied on their memories as to what was said or done during the dispute - memories, in the case of Mr Gillespie and Mr Hancock, which were not entirely reliable. Where the prosecution's witnesses were unshaken in cross examination as to their testimony, where that testimony reflected the content of notes they had made of conversations or events and where there was no basis to disbelieve the accuracy of the notes or the witnesses' evidence, I have generally preferred the evidence of the prosecution's witnesses where it conflicted with evidence of the Unions' witnesses, especially where the prosecution witness had an independent recollection of the conversation or event. I have been careful, however, to weigh up the competing versions of words said and events that took place before arriving at any final conclusion as to which evidence I should prefer.

THE DISPUTE

79 It was at least as early as July 2002 (and perhaps even March 2002) that the AWU and employees employed in the Packaging Department were advised of the prosecutor's intention to enter into an agreement with Brambles and that employees would be affected. There was no evidence that the AWU made any meaningful inquiry as to how employees would be affected, notwithstanding the fact the Union was advised that Brambles would have a significant role if the agreement were made. The information that a significant part of the prosecutor's packaging products operation may be outsourced should have alerted the AWU to the prospect that the jobs of members employed in those operations might come under threat and that it should seek some early discussions about the implications of the possible outsourcing of jobs. None were sought.

80 I note that the Enterprise Agreement applying to employees in Packaging Products contained detailed provisions regulating the conduct of parties in the event change, including specifically, outsourcing, was to be introduced into the workplace. The Agreement provided in cl 7.1.5 that all parties shared "an intent that there be "zero industrial action" and to that end will actively ensure that employees, delegates and officials will, on each and every occasion where a dispute arises and is not resolved, follow the applicable dispute procedure and not take industrial action."

81 The Agreement also provided (in cl 7.3.2) for a process of consultation that required the employer to notify the employees and Unions affected in writing of the elements of the proposed change, the intended date of commencement for the change and the likely consequences for the employees and Unions affected. It is apparent on the evidence that the prosecutor took early steps, consistent with the terms of the Enterprise Agreement, to advise the AWU and employees affected of its intentions regarding outsourcing.

82 In February 2003, employees were advised in writing that the business case to complete an agreement with Brambles had been approved and that negotiations with that company would proceed. The memorandum advised that the proposed changes would have an impact on a number of people at the finishing end. Whilst it may have been the case at this stage that the prosecutor would not have known the extent of any impact on employees, and the prosecutor had said in its memorandum there was plenty of time for discussion, which may have lulled the AWU into a false sense that change was not imminent, there was still no response at all from the AWU seeking any information on the likely impact of the changes on employees.

83 In July 2003, employees were advised that an agreement had been reached with Brambles and that some 56-65 employee positions would be directly affected. On the day employees were so advised Mr Gillespie spoke to Mr Lewry indicating the agreement was unacceptable. Then followed a series of discussions and meetings between the AWU and the prosecutor regarding the impact on employees of the outsourcing arrangement, with the AWU insisting initially, at least, that employees who would be affected remain employees of the prosecutor and that a primary criterion for selection for any remaining jobs be seniority. The prosecutor's position was that Brambles would hire its own employees and that it was open to displaced employees to apply for those positions. In respect of any positions remaining within Bluescope after the outsourcing arrangement had been put in place, employees would need to apply for those positions with skills being a primary consideration.

84 Ultimately, following the invocation of a cooling-off period by the AWU in January 2004, discussions broke down and industrial action ensued as earlier described.

85 I note that the Enterprise Agreement in cl 8 provided for a process to manage employees who were surplus to requirements after the introduction of workplace change such as outsourcing. This involved finding suitable positions in other parts of the prosecutor's operations and that redundancy was a last resort. I understand that no redundancies occurred as a result of the outsourcing arrangements with Brambles.

86 If the AWU were to seek to have the work outsourced to Brambles performed by Bluescope employees and that selection for the jobs remaining was to be according to seniority (all other things being equal), which was in fact the AWU's position, it should have signalled its position well before Bluescope signed the agreement with Brambles in July 2003. Whilst I consider that the prosecutor itself could have done more than simply relying on its obligations under the Award and Agreement in relation to the fundamental question of how displaced employees would be managed, and should have taken the early initiative in this regard because the prosecutor must have known from its experience in such matters it would become an industrial issue, the AWU failed in its responsibility to its members in not making its position clear until after the agreement between Bluescope and Brambles had been signed off. It had every opportunity to do so and its failure in that regard contributed significantly, in my opinion, to the difficult position it later found itself in when Bluescope and Brambles refused to accept its demands.

87 Moreover, the AWU followed neither the spirit nor the intent of the disputes procedure in the Enterprise Agreement. Rather than seeking the intervention of the Commission and the exercise of the Commission's conciliation and arbitration powers, once it was apparent that agreement was not achievable the AWU contributed to a situation developing that resulted in industrial action in circumstances where the intent of the Agreement was to avoid industrial action.

88 It might be contended that a strategy of resort to the Commission to avoid industrial action is unrealistic when strong emotions are involved in industrial disputes where jobs might be at stake. It has to be accepted that it is unrealistic to expect that industrial action will never occur in the course of a dispute simply because the parties have expressed an intent to avoid industrial action. And, in this case, the Enterprise Agreement does not ban industrial action, except in certain circumstances. But if organisations are not genuine in their expressions of intent in agreements freely made, they should not make such agreements. In this case, there was no attempt by the AWU to seek the assistance of the Commission before the outbreak of industrial action. Moreover, having invoked the 14 day cooling off period in January 2004, which would have enabled the AWU to seek the assistance of the Commission or engage in further discussions with the prosecutor whilst the status quo was maintained, the Union did neither.

89 Accordingly, I cannot accept the AWU's submission that Bluescope should bear the whole, or even a substantial part, of the responsibility for the dispute that eventuated. The lesson to be learnt, however, by both parties is that where change is foreshadowed that may affect the continuing employment of employees the question of the future of those employees must be tackled as early as possible and an understanding of each other's position reached before one party or the other becomes locked into a course of action, an arrangement or an agreement that is impossible to change.

90 Counsel for the AWU submitted that Bluescope refused to ensure that Brambles adhered to the recommendation of Connor C of 13 February 2004, namely, that Brambles give first preference in employment to surplus employees of Bluescope who applied for the vacant jobs and met its requirements and that Bluescope refused to negotiate further about selection criteria, even after Connor C directed on 16 February that the parties confer about the dispute. I note, however, that Mr Gillespie advised Commissioner Connor on 16 February, members of the AWU unanimously rejected the Commissioner's recommendation of 12 February that the parties have urgent discussions. It would seem somewhat pointless for the employer parties in those matters to carry through with the recommendation in circumstances where the AWU had resolved not to engage in discussions.

THE ISSUES

91 The summonses are directed against the AWU and the AFMEPKIU. No summonses were sought against individual members of either of these two organisations or against individual officers or employees of the organisations. Of course, an organisation can only act through its members, officers and employees and, therefore, any contravening act of a member, officer or employee may be held to be a contravention by the organisation.

92 The issue, therefore, in relation to the dispute orders made by Connor C on 16 February 2004 is whether the AWU and its officers and employees took all reasonable steps to ensure compliance with those orders on 16 February 2004 and up to the time that the amended orders came into force at 3.20 pm on 17 February. This is because it was conceded by the prosecutor that at 3.20 pm on 17 February, the earlier orders would have been superseded by the amended orders.

93 The contravention alleged in the summons in relation to the orders of 16 February was that the AWU and its officers and employees did not take all reasonable steps to ensure that "members of the AWU and AFMEPKIU employed by Bluescope Steel in its coil handling and packaging operations shall cease and refrain from taking further industrial action and shall work in accordance with normal work requirements and their contracts of employment effective from 3.00pm on Monday 16 February 2004." The orders took effect from 3.00pm on 16 February and purported to remain in force until Tuesday 30 March 2004 unless varied or rescinded in the meantime.

94 The issues in relation to the amended dispute orders made by Connor C on 17 February 2004 are whether:

(a) On 17 and 18 February 2004, the AWU and the AFMEPKIU and their respective officers and employees did not immediately cease and refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended dispute orders made on 17 February 2004.

(b) On 17 and 18 February 2004, the AWU and the AFMEPKIU and their respective officers and employees did not take all reasonable and necessary steps to ensure compliance with order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 3 of the amended dispute orders made on 17 February 2004.

(c) On 17 February 2004, the AWU and the AFMEPKIU and their respective officers and employees did not advise their respective members of the amended dispute orders by no later than 3.20pm on 17 February 2004 in contravention of order 3(i) of the amended dispute orders made on 17 February 2004.

(d) On 17 February 2004, the AWU and the AFMEPKIU and their respective officers and employees did not convene a meeting by 3.20pm on 17 February 2004 of all of their respective members who were engaging in industrial action and directing them to comply with order 1 of the amended dispute orders in contravention of order 3(ii) of the amended dispute orders made on 17 February 2004.

(e) On 27 February 2004, the AWU, its officers and employees, and its members employed by the prosecutor at the prosecutor's Port Kembla Steelworks engaged in strike action in contravention of order 1 of the amended dispute orders made on 17 February 2004.

(f) On or about 27 February 2004, the AWU, its officers and employees did not immediately cease or refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended orders made on 17 February 2004.

(g) On or about 27 February 2004, the AWU and its officers and employees did not take all reasonable and necessary steps to ensure compliance with order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 3 of the amended dispute orders made on 17 February 2004.

Whether there was a contravention of 16 February orders on 16 February 2004

95 The orders of Connor C of 16 February were only directed against the AWU and its members, officers and employees, and members of the AFMEPKIU but not the AFMEPKIU itself.

96 Mr Hatcher of counsel for the AWU urged the Court to take the same approach as Haylen J in BHP Steel v Australian Workers Union, New South Wales [2003] NSWIRComm 151 as to issue of proof, namely that enunciated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 that whilst the civil standard applies, "inexact proofs, indefinite testimony and indirect inferences" will not be sufficient to make out a case in a matter of this seriousness. I accept, for the reasons given by Haylen J, I should adopt the Briginshaw principle, particularly given that one of the consequences for an organisation of employees that is found to have contravened a dispute order may be cancellation of its registration, that is its very existence as an entity for the purposes of the Act is extinguished.

97 In Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449, (1992) 67 ALJR 170 the High Court stated at 170-1:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary `where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (citations removed)

98 The application of the Briginshaw principle means no more than that I should not lightly make a finding that the two Unions in this case are guilty of the alleged contraventions. That is, "a greater clearness of proof may be properly looked for" in this case than in cases where the consequences of contravention findings are not so serious: Sodeman v The King (1936) 55 CLR 192 at 216 per Dixon J.

99 Mr Hatcher submitted that having the Briginshaw standard in mind the prosecutor had failed to establish that members of the AWU took action in the Packaging Products Department in contravention of the 16 February orders. It was submitted the prosecutor did no more than show that some employees in that Department took industrial action. I do not accept that this was so. The very clear and direct inference that can be drawn from the evidence was that employees, or some of them, employed in the Packaging Products Department and who engaged in strike action on 16 February 2004 after Connor C made his orders, were members of the AWU. There would have been no need for Mr Gillespie to attend a meeting of striking employees on 16 February at about 1.00 or 2.00pm to recommend they return to work if there were not amongst them, members of the AWU, because the orders were directed not against employees but members of the AWU and AFMEPKIU. The whole history of the dispute involved the AWU seeking to represent the interests of its members, not employees who were non-members (if there were any) to whom the Union owed no duty. Mr Gillespie said in his evidence that at the time of the hearing before Connor C on 16 February, "the AWU was under a lot of pressure from its members ... and their anger was increasing." In the proceedings before Connor C Mr Gillespie said he was attempting to explain the strength of that anger. Following those proceedings it is so unlikely as to be absurd that Mr Gillespie would attend at a meeting of employees who were not his angry members to explain the outcome of those proceedings and recommend that they return to work.

100 It was also the case that on 16 February Mr Gillespie advised his delegates in the Hot Strip Mill, Plate Mill and Slab Yard of the industrial action in Packaging Products and they resolved that employees in those areas would participate in the meeting on 17 February. What I am being asked to accept, in effect, is that none of those employees, including the delegates, were members of the AWU and that despite the statement by Mr Gillespie to Mr Talbot at about 9.15am, which I accept was made by Mr Gillespie, that "Everybody is out in Packaging Products, Hot Strip Mill, Plate Mill K Building, Roll Shop ...", none of the employees who engaged in strike action after the meeting that morning were members of the AWU.

101 Mr Hancock's evidence, although confused and to be treated with caution, was that in both versions of the meetings he said he attended, he referred to "members" being present. Mr Phillips said in his oral evidence that those attending the meeting on 17 February were the "combined members" of the AWU, AFMEPKIU and ETU. Finally, Mr Gillespie said of the meeting on 16 February in his oral evidence, "...we made the members clear what the orders were."

102 I am left in no doubt that at the meetings on 16 February and the morning of 17 February members of the AWU were in attendance.

103 The next issue is whether the AWU, its respective officers and employees took all reasonable steps to ensure compliance with order 1 in the orders of 16 February. The issue arose in BHP v AWU as to whether an organiser of the AWU, Mr Anderson, had taken reasonable steps to have members comply with an order that, amongst other things, they cease and refrain from taking any further industrial action. Haylen J held at [116]:

It may well have been that Mr Anderson was somewhat tentative in dealing with these employees who were not part of his normal organising area and he may not have felt comfortable in using the words of Rule 64 in seeking to persuade the men, in their difficult mood, to return to work. ... In addressing this group of employees, the tone of his address and the words he used had to be left to the good judgment of Mr Anderson, accepting, as does BHP, that he was encouraging a return to work. To require a formulistic approach to the terms to be used at a volatile stop work meeting in order to secure a return to work is not only naïve but very well may not achieve the type of response to the orders that BHP desired in this dispute. This aspect of BHP's case is rejected.

104 The Full Bench on appeal concurred with the approach of his Honour. At [77]-[79] the Full Bench stated:

We are satisfied that Mr Anderson took all reasonable steps, having regard to the circumstances, to ensure compliance with the first dispute order: he used his best efforts to get the members to return to work and to comply with the first dispute order; he spoke emphatically to employees, and his words were in the nature of a direction (albeit not a formal direction under the Rules of the AWU); there was no challenge to his evidence that he could or should have said anything more to employees on the morning of 6 August 2002 to convince them to return to work; there was no evidence that issuing a formal direction under Rule 64 was the proper course of action in the circumstances, or that doing so would have made any difference to the eventual outcome; and his actions in seeking the assistance of Mr Phillips were appropriate.

78 We do not agree with the submission of Bluescope that "the bar has been set too low". Given that any assessment of whether an order to take reasonable steps has been complied with will depend on the particular circumstances operating at the time; the "bar" may well move. There can be no basis for suggesting that, by rejecting Bluescope's submission that Mr Anderson should have used a particular form of words, Haylen J was setting a minimum level of compliance with the second dispute order. Rather, in determining that matter Haylen J properly had regard to the circumstances in which Mr Anderson was acting.

79 We should not, therefore, be taken as suggesting that, in a given set of circumstances, a direction under the Rules of the AWU should not be given, or would be unnecessary. However, in the present circumstances, it is our view that Mr Anderson used his best endeavours, having regard to the issues and having also gauged the mood of the employees at the meeting, to ensure compliance with the first dispute order.

105 Mr Gillespie said in his evidence that at the meeting he attended on 16 February he read out the orders and explained their implications. He said he recommended a return to work and said that members were obliged to return to work but judged it inappropriate to issue directions that the employees comply with the dispute orders because of the angry mood of the meeting.

106 It may be accepted that there was hostility amongst members of the AWU at the meeting on 16 February and I also consider in the circumstances, it was understandable that a union official may have felt some reluctance to direct employees to return to work. But I am bound, I believe, to take into account a number of other considerations:

1 Dispute orders are rarely made by members of the Commission. Long experience has demonstrated that most matters can be resolved by conciliation and/or arbitration without resorting to the prospect of sanctions. The making of a dispute order is a serious step given the consequences for contravention. Persons against whom a dispute order is made are bound to take it seriously, especially members, officials and employees of organisations who may be putting in jeopardy the very existence of their organisation.

2 Mr Gillespie is a person of very considerable standing and authority at the steel works. He has a strong personality. He has been associated with industrial relations at the steel works for many years. He was in an environment that was not new to him. Indeed, it was very familiar territory. In my opinion, Mr Gillespie was well capable of taking, and should have taken, a stronger and more effective stand in encouraging members to cease and refrain from industrial action on 16 February 2004 if he had been of a mind to; he did not use his best endeavours to achieve compliance.

3 Unlike the position in BHP v AWU, Mr Gillespie's words to his members on 16 February were not "in the nature of a direction" but only a recommendation; the evidence does not suggest the recommendation was forcefully put by a person with the authority and character to do so. By comparison, Mr Gillespie's attempts at the delegate's meeting on the afternoon of 17 February to secure a return to work were much more forceful (see [131]-[132]).

4 From the outset (when Bluescope signed the agreement with Brambles in July 2003) Mr Gillespie manifested strong feelings about the prosecutor's role in the dispute and threatened stridently throughout, that the prosecutor would not achieve its objectives and that it would result in a serious industrial dispute involving industrial action. This is apparent from the evidence of the prosecutor's witnesses and the transcript of various proceedings in the Industrial Relations Commission. Mr Gillespie said in proceedings before Connor C on 16 February 2004 that he was prepared to "cop" fines in defence of his Union's position. The unmistakeable inference is that Mr Gillespie was pre-disposed to a course of action that could lead to a contravention of dispute orders. In his submissions to Connor C on 16 February Mr Gillespie stated:

Whatever's going to happen ...we are prepared as a union to say, "we are not prepared to tolerate what these people want to introduce". If we think it's going to get bigger, then yes, Commissioner, it is going to get bigger, because there is a, quite a significant issue at stake in this particular matter which doesn't only affect the tin mill. It affects all of BHP.

5 That pre-disposition extended to widening the dispute to include the Hot Strip Mill, Plate Mill, Slab Yard and Springhill. As early as Friday 13 February 2004, before any resolution was passed at the meeting on 16 February for delegates in these other areas to be advised of the dispute, Mr Gillespie advised Mr Meena, the President of the Springhill operation, the dispute would escalate to include those areas. Mr Gillespie said in his evidence that he only indicated to Mr Meena that there was the "potential" for the dispute to spread to those other areas. Whatever words Mr Gillespie used, widening the dispute was clearly in his mind on 13 February. Whilst Mr Gillespie said he was only carrying out the directions of the meeting on 16 February in advising delegates in the Hot Strip Mill, Plate Mill and Slab Yard of the dispute in the Packaging Products Department, which had the effect of widening the industrial action, I consider it is more probable than not that Mr Gillespie knew that his advice to the delegates would mean a widening of the dispute and he took no reasonable steps to prevent that occurring.

107 The foregoing considerations lead me to the conclusion that Mr Gillespie did not take all reasonable steps to ensure compliance with order 1 of the orders of 16 February and through that failure of a senior officer of the AWU, the AWU contravened the dispute order.

Whether there was a contravention of the 16 February orders on 17 February 2004

108 A further meeting of striking union members occurred on the morning of 17 February 2004. Mr Gillespie was in attendance. Mr Hancock said he was also in attendance and the evidence would seem to point to that being the case.

109 The evidence in relation to Mr Gillespie's efforts to end the industrial action at the meeting on 17 February was that he strongly recommended compliance with the orders of Connor C and that employees return to work. Again the meeting was, apparently, vocal and angry and Mr Gillespie and other officials present were subjected to abuse. Mr Gillespie said in his oral evidence that giving a direction "would not have been any use whatsoever" and that:

The situation was already inflamed. We were already, as I have said, the matters were the most unpleasant meetings I have had in the last ten years personally so the issue clearly was I don't know this would have served any useful purpose. As a matter of fact, I think it would have inflamed the situation rather than make it easier.

Q. Why?

A. The way the moods of the employees was, they weren't going to listen to directions from the union or anyone else I think in terms of making a recommendation and debating that issue which it was quite a lengthy heated debate. I just cannot emphasise enough the heat that was generated there in this particular dispute. As I have said, I have never seen a dispute generate such heat so quickly in the last 10 and I can understand why. It was not going to serve any useful purpose. As a matter of fact, it would be made, I suppose, the meeting a little bit more hostile than they were already, if that was possible.

110 Mr Hancock's evidence was that Mr Gillespie did his best to achieve a return to work and argued with employees to allow him to negotiate with Bluescope without the distraction of a breach of the dispute orders.

111 As I earlier cited in Bluescope Steel v AWU the Full Bench held that:

71 The case law clearly establishes that the extent of the obligation to take "reasonable steps" depends on the particular circumstances existing at the time the obligation arises. Further, we consider that, in the context of the orders made by Connor C, the obligation, as with the requirement to use "best endeavours", refers to all steps that are reasonable to take, and does not extend to all steps that are reasonably open in some narrow or theoretical sense (which could encompass, for example, matters not directly within the particular knowledge or experience of a relevant party). We consider that that was not the intention of the Commissioner in the orders made on 5 August 2002.

...

77 We concur with those findings. We are satisfied that Mr Anderson took all reasonable steps, having regard to the circumstances, to ensure compliance with the first dispute order: he used his best efforts to get the members to return to work and to comply with the first dispute order; he spoke emphatically to employees, and his words were in the nature of a direction (albeit not a formal direction under the Rules of the AWU); there was no challenge to his evidence that he could or should have said anything more to employees on the morning of 6 August 2002 to convince them to return to work; there was no evidence that issuing a formal direction under Rule 64 was the proper course of action in the circumstances, or that doing so would have made any difference to the eventual outcome; and his actions in seeking the assistance of Mr Phillips were appropriate.

112 The issue for me to determine in the present proceedings in relation to the industrial action on 17 February is whether the union officials took all steps that were reasonable to take in the particular circumstances existing at the time. The relevant circumstances were as follows:

(a) The meeting on 17 February was larger than that on the previous day and involved members of both the AWU and AFMEPKIU.

(b) The meeting was vocal and angry and there was a lot of "heat" generated. The officials were subjected to verbal abuse.

(c) The meeting was advised of Commissioner Connor's dispute orders. Mr Gillespie "strongly recommended" compliance with the orders. Mr Phillips also recommended compliance, although his Union was not subject to the order. Mr Gillespie considered that a direction by him to comply would have inflamed the situation, that members would not have heeded any direction and that a direction would not have been of any use whatsoever.

113 Notwithstanding these circumstances, I am not satisfied the union officials took all steps that were reasonable to take to achieve compliance with the dispute orders. That is, the officials did not use their best efforts to get the members to return to work. It may have been the case that a direction by AWU officials would not have achieved compliance, although I am not entirely convinced that the issuing of a direction was not a reasonable step to take. Mr Gillespie was empowered, under the rules of his organisation, to make a direction under rule 64(2). Members of the Union are required to comply with such a direction.

114 In my experience, directions of the sort provided by r 64(2) of the AWU's Rules are rarely made. Such a direction would be unnecessary if officials are able to persuade a meeting of members to follow a particular course of action in an industrial dispute. In most cases, particularly where the official is a seasoned operator like Mr Gillespie, members will follow the recommendation of the official. But where the meeting refuses to follow a path proposed by the official it is open to an AWU official to make a direction. It must be accepted, as the Full Bench pointed out in Bluescope v AWU, that whether such a direction is made will depend on the particular circumstances at the time. For instance, if the making of a direction were likely to cause the official to lose control of the meeting, or escalate the seriousness of the dispute, or attract the likelihood of physical abuse, then expecting the official to make a direction might be unreasonable. I hasten to add that, in the present case, there was no evidence of the likelihood of physical abuse or that the making of a direction would have caused Mr Gillespie to lose control of the meeting. It is difficult, in fact, to imagine how the situation may have led to a worsening of the dispute given that the meeting resolved to continue with the strike action and called for a mass meeting the following day.

115 But whether the making of a direction by an officer of the AWU under r 64(2) is a reasonable step to take must also be considered against the background that the Commission has made dispute orders and a contravention of those orders has serious consequences for the Union. The making of a direction is a step available to the AWU.

116 In my opinion, if the AWU is to successfully contend it was not reasonable to make a direction it has to show that at the relevant time active consideration was given to the making of a direction, that the pros and cons of doing so were weighed up by the relevant official(s) and if the direction is not given, the reasons why that was not a reasonable step to take. In my opinion, neither Mr Gillespie nor Mr Hancock, the relevant officials empowered under r 64(2) to make a direction, took these steps in this case. Moreover, that a union official of Mr Gillespie's status may be confronted with an angry meeting or may be subject to strong verbal abuse at the meeting does not seem to me to be a sufficient basis for declining to make a direction to return to work in circumstances where the official or his or her union is subject to dispute orders.

117 However, I do not rely on the fact that no direction was given to sustain a finding that all reasonable steps were not taken on 17 February to comply with the dispute orders. I consider that, short of making a direction, reasonable steps were not taken. I do not consider recitation of the orders or a strong recommendation following "heated" debate constituted Mr Gillespie speaking emphatically to his members or that his words were in the nature of a direction, as was the case with Mr Anderson in Bluescope v AWU.

118 There are some additional considerations. These are referred to earlier in this decision regarding the meeting on 16 February, namely Mr Gillespie's personal threats of industrial action being widened, his stated disregard in proceedings before Connor C for dispute orders, his standing and authority to be more forceful in securing compliance with the dispute orders by dint of his strong character and his position as Secretary. There was nothing that occurred between the meeting on 16 February and the next meeting on 17 February that would have caused Mr Gillespie to have a different perspective on the direction of the dispute. In other words, if, as I have found, all reasonable steps were not taken at the meeting on 16 February to have the industrial action cease, nothing occurred before 7.00am on 17 February to cause Mr Gillespie to become more forceful or persuasive in his attempts to secure a cessation of the industrial action. I consider that Mr Gillespie was not inclined to, and did not, take all reasonable steps to have his members cease and refrain from taking industrial action.

Whether there was contravention of amended dispute orders on 17 February

119 The next development on 17 February was the issuing of the amended dispute orders by Connor C at about 1.45 pm, such orders coming into effect at 3.20pm that afternoon. As a consequence of the issuing of those orders, company officers telephoned employees advising them of the orders. A number of employees responded by reporting for work on the afternoon shift.

120 At about 4.00pm Mr Bland and Mr Towers saw Mr Hancock talking to a group of the returning employees. Both Mr Bland and Mr Towers heard Mr Hancock say words to the effect of, "We broke the Commission's orders yesterday and we are doing it today as well." I accept this evidence of Mr Towers and Mr Bland, despite Mr Hancock's denials, and it reinforces my opinion that the AWU had scant regard for the dispute orders and pursued a course of action that caused it to contravene those orders of 16 February and the amended orders of 17 February.

121 Mr Bland responded to Mr Hancock by saying words to the effect of, "The Industrial Relations Commission requires a return to work." Mr Bland then showed Mr Hancock the Commission's orders which he had in his hand. Mr Towers stated in his evidence that Mr Hancock then turned to the employees and stated words to the effect of, "I can't tell you to go home, but I want to tell you all that you are all on strike." Mr Bland then spoke to the employees and said words to the effect of, " There is work for those who want to stay in accordance with the Commission's orders. It is your decision about what to do." Mr Hancock then repeated his earlier statement with words to the effect of, "I can't tell you to go home, but I want to tell you all that you are all on strike" and added words to the effect of, "Until the meeting at 7:00am tomorrow."

122 I am prepared to infer that the group of employees who Mr Hancock was addressing on the afternoon of 17 February were members of the AWU. These members were previously on strike as a consequence of the meeting earlier that morning and were responding to calls from managers to return to work. In my opinion, Mr Hancock was present to ensure there was no return to work by his members and I am satisfied he used the words attributed to him by both Mr Bland and Mr Towers. Both of those witnesses were adamant Mr Hancock used words to the effect, "I can't tell you to go home, but I want to tell you all that you are all on strike". Mr Towers had an independent recollection and relied on notes he made about an hour later. The words can only sensibly be regarded as an encouragement of industrial action and thereby constitute a contravention of order 2 of the amended orders of 17 February.

123 Mr Gillespie and Mr Phillips were present in the Commission on 17 February when the Commissioner indicated his intention to make orders in the terms proposed by the prosecutor, which he ultimately did. Both officials left the proceedings before Connor C issued the formal orders. The orders were faxed to Mr Gillespie's office about 2.02 pm and Mr Gillespie had a copy of the orders when he spoke to Mr Talbot about 2.15 pm. Mr Gillespie indicated to Mr Talbot that it was unrealistic to call a meeting that afternoon and the first opportunity to put the orders to a members was "7.00am tomorrow morning with everybody". No attempt at all was made by the AWU to comply with order 3(i) and 3(ii) of the amended orders. Mr Gillespie was aware of the Commission's intention to make orders requiring that members of the AWU and AFMEPKIU be advised of the orders by no later than 3.20pm on Tuesday, 17 February 2004 and that the Unions were to convene a meeting by 3.20pm on Tuesday, 17 February 2004 of all members who were engaging in industrial action and to direct those members to comply with order 1. It was open to Mr Gillespie in the proceedings before Connor C to make submissions to the effect that the convening of a meeting that afternoon was not practicable and that the dispute had reached such a stage where the most appropriate course was to require the orders to be put to a mass meeting the next morning. Mr Gillespie made no such submission nor did he advise the Commission after receiving the formal orders that a meeting that afternoon was impracticable.

124 Mr Gillespie said he sent Mr Hancock to the plant to have a meeting at about 3.00pm "to see what he can do". Presumably Mr Gillespie was talking about meeting the requirements of order 3(i) and 3(ii). I earlier concluded, however, that Mr Hancock was at the plant in the afternoon of 17 February to ensure there was no return to work and the words attributed to him by Mr Bland and Mr Towers support that conclusion.

125 Mr Hatcher submitted that order 3(i) required the AWU to advise its members of the orders by no later than 3.20 pm on 17 February 2004 but that the orders only took effect at the same time i.e., 3.20pm on 17 February. Mr Hatcher submitted that part of the order had no practical operative effect. Whilst Mr Hatcher's submission was confined to order 3(i), I consider his criticism applies equally to order 3(ii), which required the Unions to convene a meeting by 3.20pm when the orders took effect from 3.20pm. In order to comply with orders 3(i) and 3(ii) the Unions would have needed to take steps prior to 3.20pm but the orders did not take effect until 3.20pm.

126 Whilst I consider that on 17 February Mr Gillespie understood the orders to mean that he was to take certain steps by 3.20pm and that at the time he did not rely on the lack of practical operative effect of orders 3(i) and 3(ii) referred to by Mr Hatcher, there can be no contravention of an order in circumstances where the order implied that certain steps needed to be taken by a time specified in the order (and those steps were not taken) but where the order did not come into effect until the specified time. This may seem a pedantic approach to construing the terms of the orders given that the Unions believed the orders in fact required them to take certain steps prior to 3.20 pm, but if orders do not take effect until a time specified in the orders a contravention cannot occur before the specified time.

127 I find, therefore, that the AWU did not contravene orders 3(i) and 3(ii) of the amended dispute orders made by Connor C on 17 February 2004. However, that does not relieve the AWU, its officers and employees of its obligation under order 3 of taking all other reasonable steps to ensure compliance with order 1.

128 The Commissioner's amended dispute orders were faxed to the AFMEPKIU's Sydney office at 2.20 pm and to the Wollongong office at 3.56pm. Mr Phillips did not see the orders until he attended at the delegate's meeting at the AWU's offices at about 4.00pm. Mr Phillips was aware, of course, that the Commissioner intended to make orders as proposed by the prosecutor but not having received the formal orders until after 3.20pm it would, even putting aside their lack of practical operative effect, be unreasonable to find a contravention by the AFMEPKIU of orders 3(i) and 3(ii) to the extent that Union did not advise members of the orders and convene a meeting of members and direct them to cease industrial action, all by 3.20pm, on the basis that Mr Phillips being aware of the Commissioner's intentions but not having seen the final, formal orders before 3.20pm. There was no evidence that the AFMEPKIU's Sydney office received the prosecutor's facsimile message sent at 2.20pm. This, however, does not release the AFMEPKIU from its obligations under the amended orders of taking all reasonable and necessary steps to ensure that order 1 was complied with. Whether or not it did so, requires a consideration of what occurred at the delegate's meeting.

129 As to that meeting, it took place late in the afternoon of 17 February. Mr Phillips said in his oral evidence that the officials did not call such meetings simply based on a call by members to do so but that it had to be an important issue.

Q. And that group of members sought to call an urgent meeting of the delegates for the afternoon.

A. Yes.

Q. Who called it, did the members call it or did you call it?

A. We ended up arranging, the delegates.

Q. What was the purpose of getting a combined steel industry's delegates meeting together?

A. To formulate a strategy how to resolve the issue. When members call for a meeting of site delegates we don't just do it on every occasion, you just can't. The issue has to be one which is an important issue. If we called a meeting of site delegates every time a group of people said they wanted a mass meeting of site delegates we would be meeting every day.

130 It may be seen, therefore, that the officials of the AWU and AFMEPKIU decided to call a delegate's meeting over the outsourcing issue. The evidence of Mr Gillespie was that in relation to the dispute orders he said to the delegates, "You have to comply with them whether you like it or not." Mr Phillips said he forcefully recommended compliance with the orders.

131 It would seem that, according the evidence of Mr Gillespie and Mr Phillips, they were strongly advising the delegates that a return to work of all striking members needed to be effected immediately by the holding of a meeting of striking employees. Both Mr Gillespie and Mr Phillips agreed that they did not direct a return to work but I think in the circumstances of a delegates' meeting that was understandable. What could have been the direction? That the delegates advise the membership in their particular work areas to return to work when the members had already met that morning and decided, against Mr Gillespie's recommendation, to continue strike action? I do not consider this was either a practical proposition or a reasonable step to take in achieving a cessation of industrial action. A return to work was essentially dependent on Mr Gillespie and Mr Phillips using their best endeavours at a meeting involving striking employees to achieve such an outcome, something that thus far Mr Gillespie had failed to do.

132 I consider, with some reservations, that I have to accept Mr Gillespie's evidence that on the occasion of the delegate's meeting he did more than recommend a return to work. In his oral evidence, Mr Gillespie stated that in a "heated and aggressive meeting":

I made it abundantly clear during the debate with each person debating the issue with me personally. I said, "The orders are there. Directions of the Commission. Not recommendations". And I made the distinct difference between a recommendation and direction or order. And they have to be complied with, that is what they are there for. "These are the reasons why you have to comply with them".

This is in contrast to what Mr Gillespie put to the meetings of members on 16 February and the morning of 17 February.

133 Mr Phillips' attempts at securing a return to work were not as forceful as those of Mr Gillespie but it is apparent Mr Phillips and his members would have been taking the lead from the AWU, and given the extent of solidarity between the two unions there would have been little utility in Mr Phillips insisting on an independent position and directing his members to return to work in the face of the position adopted by AWU delegates. This is not to excuse Mr Phillips from not taking early action to keep his members out of the dispute because they were not affected by the outsourcing arrangements, but by the time of the delegates' meeting Mr Phillips had lost a good deal of any influence he may have had to prevent his members participating in the industrial action.

134 In the face of the delegates' rejection of a return to work of striking members Mr Gillespie opted for his fall back position, namely, a mass meeting the next day, 18 February, when he said he would have the numbers to outvote those who wanted to continue with industrial action. The AFMEPKIU supported this position. The organising of the mass meeting on 18 February 2004 was in contravention of order 2 of the amended orders by both the AWU and the AFMEPKIU. Mr Hatcher submitted that the Court was faced with something of a paradox in relation to the organising of the meeting on 18 February. He said that whilst it caused a stop work meeting of a wider group of employees, it was also the means by which a return to work was achieved. Mr Hatcher submitted the Court should dismiss the matter under s 139(3)(a) of the Act.

135 On the other hand, of course, the organising of the stop work meeting on 18 February 2004 may not have been necessary if the AWU had dealt with the outsourcing issue in a responsible fashion in its early stages or if AWU officials had taken reasonable steps to comply with the Commission's orders relating to the earlier episodes of industrial action.

136 I find there was a contravention of order 2 of the amended orders at the delegates' meeting on 17 February by both the AWU and AFMEPKIU. The nature of the contravention and the circumstances in which it occurred may be a matter for consideration in any proceedings pursuant to s 139(3) of the Act but I am not prepared, at least at this stage, to dismiss the matter under s 139(3)(a).

Whether there was contravention of amended orders on 18 February

137 In his affidavit Mr Gillespie deposed:

In addressing the mass meeting there were approximately two thousand (2,000) employees in attendance. I reviewed the entire recent history, that is the Orders issued on 16 February 2004 and again the amended Orders on 17 February 2004. I summarised the meetings held at Northgate the resolutions made at the Northgate meetings along with the delegates resolutions made in the AWU office in Wollongong on the evening of 17 February 2004.

I said to the employees in words to the effect:

"We recommend that a resumption of work take place in compliance with the Orders and the amended Orders from the New South Wales Industrial Relations Commission."

That resolution was supported both by Mr Phillips of the AMWU and Mr Tomlins of the ETU and after a heated debate our recommendation was put to the mass meeting and narrowly carried for a return to work. There was a return to work approximately half an hour after completion of the mass meeting, which would have been about 8:30am to 8:45am.

138 The organising of the meeting on 18 February 2004 was, as I have found, a contravention of order 2 of the amended dispute orders. Whilst their members took industrial action, I do not consider it can be reasonably contended that by holding the meeting the AWU or AFMEPKIU per se, took industrial action on 18 February. However, the two unions were required by order 3 to take all reasonable and necessary steps to ensure that industrial action ceased. The only steps available to the two Unions by this stage was to either call a meeting limited to the striking workers and direct them to return to work in accordance with what Commissioner Connor considered to be a reasonable and necessary step, or do what Mr Gillespie proposed and that was to call a mass meeting and have the striking members outvoted.

139 In the face of the delegates' position, which was opposed to a return to work by the striking members, it is arguable the only reasonable step left at that stage of the dispute, if there was to be an early cessation of the industrial action, was the course proposed by Mr Gillespie and that, therefore, I should find that the holding of the meeting on 18 February did not constitute a contravention of the dispute orders by the AWU or the AFMEPKIU. I accept this proposition. I find that the AWU and AFMEPKIU took all reasonable and necessary steps on 18 February 2004 to ensure compliance with order 1 of the amended orders.

Whether there was contravention of amended orders on 27 February

140 Mr Rooney and Mr Talbot stated in their evidence that on 23 February 2004 Mr Gillespie indicated to them he was intending to have a stop work meeting at the Coil Preparation Line. Mr Gillespie said he did not use the words "stop work meeting". He said:

I did mention at that meeting [with the company officers] that we would need to have four (4) shift meetings the purpose of which was simply to report back to the employees who were the same sixty-one (61) surplus employees about our continued negotiations with the Company. It is easier to have access to a room to hold the meetings on-site as it is much quicker.

141 Mr Talbot deposed that later in the day on 23 February 2004 Mr Hancock said to him words to the effect:

I have been told to request a conference room on site to enable the AWU to hold a stop work meeting with CPL employees on Friday 27 February 2004.

142 Mr Talbot said he declined on the basis it would be in breach of the Commission's dispute orders. Mr Rooney said in his evidence he also declined. Mr Rooney said he also wrote to Mr Gillespie on 24 February 2004 and again on 26 February and advised him he would provide a venue for his proposed meeting provided that the meeting did not impact on production. Mr Gillespie did not respond to the letters. A stop work meeting went ahead at 7.00am on 27 February 2004 causing a loss of steel production.

143 Both Mr Gillespie and Mr Hancock stated in their evidence that they did not organise the meeting on 27 February 2004 and that it was the members of the Union that organised and held the stop work meeting. My view of the evidence is that the meeting was organised, encouraged or incited by the AWU through Mr Gillespie and/or Mr Hancock and was a breach of orders 2 and 3 of the amended dispute orders of 17 February 2004.

FINDINGS

144 Having regard to the reasons expressed in this decision I make the following findings:

Matter No IRC 3226 of 2004 - Summons on the AWU

1 On 16 and 17 February 2004, the AWU and its officers and employees did not take all reasonable steps to ensure compliance with the dispute orders made on 16 February 2004 in contravention of order (ii) of the dispute orders made on 16 February 2004 in matter No IRC 423 of 2004.

2 Pursuant to s 139 of the Industrial Relations Act 1996, on 16 and 17 February 2004, the AWU contravened the dispute orders made on 16 February 2004 in matter No IRC 423 of 2004.

3 On 17 February 2004, the AWU and its officers and employees did not take all reasonable and necessary steps to ensure compliance with order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 3 of the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004.

4 On 17 February 2004, the AWU and its officers and employees did not immediately cease and refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004.

5 On 27 February 2004, the AWU, its officers and employees did not immediately cease or refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended orders made on 17 February 2004 in matter No IRC 423 of 2004.

6 On 27 February 2004, the AWU and its officers and employees did not take all reasonable and necessary steps to ensure compliance with order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 3 of the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004.

7 Pursuant to s 139 of the Industrial Relations Act 1996, on 17 and 27 February 2004, the AWU contravened the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004.

Matter No. IRC 3223 of 2004 - Summons on the AFMEPKIU

1 On 17 February 2004, the AFMEPKIU and its officers and employees did not immediately cease and refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004.

2 Pursuant to s 139 of the Industrial Relations Act 1996, on 17 February 2004, the AFMEPKIU contravened the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004.

DIRECTIONS

145 Matter Nos IRC 3223 and 3226 of 2004 are listed for directions at 9.30 am Monday 11 April 2005 when a date will be fixed for hearing for the purpose of considering what action should be taken pursuant to s 139(3) of the Act in relation to the contraventions of the dispute orders and amended dispute orders.

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LAST UPDATED: 05/04/2005