CITATION : 2008 WAIRC 00271 CORAM : THE HONOURABLE M T RITTER, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH SENIOR COMMISSIONER J H SMITH HEARD : FRIDAY, 7 MARCH 2008, THURSDAY, 27 MARCH 2008, MONDAY, 7 APRIL 2008 DELIVERED : FRIDAY, 2 MAY 2008 FILE NO. : FBM 1 OF 2008 BETWEEN : THE REGISTRAR OF THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Applicant AND THE STATE SCHOOL TEACHERS' UNION OF W.A. (INCORPORATED) Respondent SUMMARY OF REASONS FOR DECISION FOR THE MEDIA/PUBLIC Purpose and Limitations of the Summary 1. In accordance with the practice of the Western Australian Industrial Relations Commission, in certain cases of public interest, the Full Bench has prepared a Summary to accompany the reasons for decision that are delivered and published today. 2. It must be emphasised however that the Summary forms no part of the reasons for decision. The Summary is intended to assist in understanding the principal conclusions reached by the Full Bench but is necessarily incomplete. The only authoritative statement of the reasons of the Full Bench is the published reasons. The summary is not intended to be a substitute for the reasons of the Full Bench or to be used in any later consideration of the reasons. 3. The published reasons for decision and this Summary will be available on the Commission’s website at http://www.wairc.wa.gov.au. Facts 4. Since September 2007 the Department of Education and Training (the DET) and the respondent have been negotiating for an enterprise bargaining agreement to replace one then due to expire on 1 March 2008. 5. On 10 January 2008 the DET lodged an application with the Commission to initiate a bargaining period for a replacement agreement and the respondent agreed to participate in this. 6. On 21 February 2008 the respondent issued a directive to its members to stop work on the morning of 28 February 2008 for the purpose of attending meetings to receive an update on negotiations and to “consider member responses to negotiations”. 7. On 25 February 2008 and on the application of the DET the Commission convened a conciliation conference. On that day the Commission ordered the respondent, amongst other things, not to proceed with the planned stop work meetings on 28 February 2008. 8. Despite the order, the executive of the respondent met on 26 February 2008, took advice and decided to proceed with the stop work meetings. The executive advised both the DET and its members of this decision. 9. Stop work meetings were then held in Perth and other locations at 10.30am on 28 February 2008. On the information before the Full Bench the meetings resulted in the closure for the day of 35 schools and the absence from school of more than a third of teachers and a third of students at the same school for all or part of a day in over 50% of 720 out of the 768 schools from which information was obtained. Most full time or part time teachers who participated in the meetings were absent from school for 50-60% of the day. 332 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. The Application and the Conference 10. The present application was to “enforce” the order of the Commission. It alleged the respondent contravened the order of the Commission by, amongst other things, holding the stop work meetings. The applicant and the respondent met to conciliate the application. The Agreed Position and the Proffered Undertaking 11. Following this the respondent advised the Full Bench that it would admit the contraventions and it was agreed that it would be appropriate for the Full Bench to accept an undertaking proffered by the respondent to “in the future, comply with the orders of the Commission”. 12. The parties accepted however that the Full Bench was not bound by this agreement. The Decision of the Full Bench 13. The Full Bench reserved its decision on 7 April 2008. It published its reasons for decision today in which the members of the Full Bench have each written separate reasons. 14. The Full Bench was unanimous in concluding the contravention had been proved and that neither the acceptance of the proffered undertaking, the issuing of a caution nor directing the applicant to take deregistration proceedings were the appropriate disposition. The members of the Full Bench, having regard to the seriousness of the contravention, the proffered undertaking and other mitigation agreed that the appropriate disposition was a financial penalty. 15. The maximum financial penalty for a registered organisation under the Industrial Relations Act is $2000. The members of the Full Bench were unanimous in deciding that $1500 was the appropriate penalty. In the first paragraph of his reasons Acting President Ritter said, with the agreement of Chief Commissioner Beech and Senior Commissioner Smith that “neither the respondent, other organisations and associations nor the public should be in any doubt as to the seriousness with which all members of the Full Bench view the respondent’s conduct.” The Reasons for Decision 16. Ritter AP decided the contravention was “very serious”. His Honour said: “The system of resolving industrial relations disputes by the use of the procedures contained in the Act and utilising the Commission as an “independent umpire” is well understood, accepted and ordinarily respected by the community. If a party thinks that a decision made by the Commission is wrong, appeal procedures exist. In this instance though the respondent participated in a hearing, did not like the outcome, walked away and in a very planned fashion thumbed its nose at the Commission and did the opposite of what it was ordered to do. The respondent, with some defiance, ignored the concerns of the DET and the Commission about the consequences of the planned stop work meeting. The Full Bench cannot in any way condone the respondent’s behaviour.” 17. Ritter AP also said: “As I have said earlier the maximum financial penalty is comparatively low. If $2000 is divided by the membership of the respondent the amount of the fine is about $0.15 per member. As previously expressed the purposes of the imposition of a financial penalty are to punish with a bit of a “sting”, to deter and to denounce the conduct. It is difficult to see that even the maximum fine can achieve these aims for this contravention and organisation. Despite this, I think the Full Bench needs to do the best that it can, which in this case leads to the imposition of something near the maximum penalty”. 18. Beech CC said: “In my view, the conscious and deliberate decision of the executive of the SSTU to flout an order of the Commission is far more serious than a circumstance where accepting an undertaking or issuing a caution would be appropriate. In my view, the appropriate penalty for this first occasion is a fine. The maximum fine is $2,000 which is hardly a significant sum of itself, as was observed during the course of the hearing”. 19. Beech CC had regard to the agreement reached between the Registrar and the respondent for the minimal position of accepting an undertaking that the respondent will in the future comply with orders of the Commission and that it was a single stoppage of relatively limited duration, and decided the appropriate penalty was $1,500. 20. Smith SC said: “the imposition of a fine is an appropriate penalty in this matter as the deliberate nature of the breach of the order takes the seriousness of the breach out of the range of an undertaking or caution”. Smith SC was not of the view however that a penalty close to the maximum fine should be imposed as she was satisfied that there were mitigating circumstances. Firstly, although no apology had been given importantly the respondent had given an undertaking to comply with orders of the Commission in the future. Secondly, it admitted the breach at an early stage of the proceedings. Thirdly, no s84A proceedings had previously been brought against the respondent. Whilst the respondent was found to be in breach of orders made by the Commission approximately 19 years ago that conduct was too remote in time to be considered. Fourthly, the stoppage of work in this matter was for a limited duration that affected the attendance of students at school for one day. 21. Smith SC said the totality of the circumstances of the breach together with the mitigating circumstances placed the breach in the category of a fine towards the higher end of the scale. Consequently when regard was had to all of circumstances of the breach and the mitigating factors Smith SC applied a discount of 25 percent to the maximum amount of a fine that can be imposed under s84A. Minute of Proposed Order 22. The Full Bench has published a Minute of Proposed order that the respondent within 3 days pay $1500 to the State of Western Australia. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 333 2008 WAIRC 00270 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH