WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia—Western Australian Branch and Others (Applicants) and SCM Chemicals Limited (Respondent). No. 854 of 1995. BEFORE HIS HONOUR THE PRESIDENT P J SHARKEY. Reasons for Decision, 7 August 1995. THE PRESIDENT: This is an application made by the appel- lants in appeal No 842 of 1995, pursuant to s.49(ll) of the Industrial Relations Act 1979 (as amended) (hereinafter re- ferred to as "the Act"). The applicant employee organisations have appealed against the decision of the Commission at first instance, contained in an order made by a single Commissioner on 19 July 1995.1 am satisfied that the applicants have sufficient interest to en- able them to make this application, being parties to the pro- ceedings at first instance. I am satisfied that an appeal has been instituted by a notice of appeal filed in the Commission. This application, as I have said, relates to an order made on 19 July 1995, which contains recitals and the terms of the orders themselves. The application cannot be understood un- less the order is reproduced hereunder, and I do so:— "(1) THAT no further industrial action, as defined in Or- der (3) hereof, be undertaken by employees of the company, being members of or eligible to be mem- bers of the union parties, who are engaged at the company's Australind and Kemerton operations, during the currency of this Order; (2) THAT no further industrial action, as defined in Or- der (3) hereof, be recommended or otherwise sup- ported, by any of the union parties or their officials; (3) THAT, for the purposes of this Order, industrial ac- tion means strike action, stop work meetings, report back meetings, or bans other than those in place at the date of the last Conference, namely 7 July 1995; (4) THAT both the union parties and the company pro- vide to the Commission, a statement of those ele- ments of work in respect of which bans were in place, as at 7 July 1995; (5) THAT both the union parties and the company pro- vide to the Commission, in outline form, a statement of their respective positions in the enterprise bar- gaining negotiations, as they relate to the following matters: (a) Proposed flexibility clause, as sought by the company. (b) Relevant flexibility issues, as identified by the union parties. (c) Wage escalation proposals; (6) THAT the statements referred to in Orders (4) and (5) above be provided to the Commission by Thurs- day, 27 July 1995; and (7) THAT this Order remain in effect until all parties request that it be cancelled or the Commission so determines that it be cancelled." There was no evidence adduced by the applicants, except by virtue of some statements from the bar table on the ques- tion of balance of convenience. The respondent relied on the affidavit of Christopher John Gibbs sworn on 3 August 1995 and filed herein. The order made at first instance resulted from a number of conferences conducted pursuant to s.44 of the Act. It is said to be a temporary order (of the type empowered to be made by s.44(6)(ba), which does not, of course, permit of the making of an order or orders which are not temporary orders, and which does not permit of the making of orders except upon the grounds and for the reasons set out in s.44(6)(ba)). The order prohibits any further industrial action at the site of the respondent company's Australind and Kemerton operations, during the currency of the order. It is clear from the affidavit of Mr Gibbs, and not denied, and accordingly I find, that dif- ferences have arisen between the applicants, who represent employees employed by the respondent, at the company's operations at Australind and Kemerton. 2312 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 75 W.A.I.G. The order made, which prohibits industrial action occur- ring, binds any of the respondent employee organisations, of whom there are four, and their officials, and, in addition, by order (7), provides that the order is to remain in effect until all parties request that it be cancelled or the Commission so de- termines that it be cancelled. From Mr Gibbs' evidence, which was not challenged, a number of facts emerged. The problem involved in this matter derives from stop work meetings and what are called "report back meetings" conducted in work hours by the applicants and involving employees of the respondent. As a result of the stop work meetings, the respondent complains that critical elements of its operations must be shut down if not staffed by appropriately qualified award employees. This, according to the evidence, which is not denied, causes a loss of 10 hours or so, as well as the time of the stop work meeting in the opera- tions, and involves disruption which has caused economic loss quantified at about six million dollars. Disputation and negotiation have been occurring since Feb- ruary 1995 between the applicants and the respondent over proposed remunerations and conditions. The facilities, on the evidence, are designed to be in operation continuously 24 hours a day, except for scheduled maintenance. There have been what are described as "unauthorised" mass meetings of employees and other industrial action, as well as "authorised" meetings on 3 May 1995,18 May 1995, 19 May 1995, 26 May 1995,1 June 1995,9 June 1995, 21 June 1995, 26 June 1995, 27 June 1995,20 July 1995,21 July 1995,25 July 1995,26 July 1995, 27 July 1995 and 1 August 1995. Industrial action forbidden by the order is said to have taken place. The respondent asserts that meetings are not necessary for the applicants to communicate with their members, something denied by Mr Lovell from the bar table, but not the subject of evidence on the part of the applicants. The respondent says that the industrial action which has taken place is unjustified and in breach of the order. The Commission proposes to hold site inspections on 9 August 1995, but the matter has not yet been listed for arbitra- tion. The applicants have not sought to vary the orders of 19 July 1995. It is for the applicants to establish that the order should be made. The grounds of appeal allege that the orders made were ultra vires and unenforceable, that the Commission erred in law in issuing orders which had the effect of compelling of- ficers to breach their organisations' own rules, and that they deny members of the union access to their elected representa- tives. The grounds of appeal further allege that the orders had the effect of being applied to the respondent's employees, not , to members of the applicant unions as such, and that the or- ders had the effect of being without precise term or limita- tions such as to have a perpetual effect similar to a permanent injunction. Notice has been given of an application to the Full Bench to amend the grounds of appeal by alleging that the order of 19 July 1995 was made without complying with s.35(l) and s,35(3) of the Act, and, further that the appellants were denied natural justice because when the order was issued the appli- cants were not informed of the respondent's allegations, and there was no opportunity given to them to respond to them. In addition, Mr Lovell foreshadowed a further amendment to allege a breach of s.26(3) of the Act. It was also submitted that the orders were incapable of obedience. It is for the applicants to establish that the order staying the operation of the decision at first instance should be made. The applicants submitted that the principles governing the grant- ing of an order under s.49(l 1) of the Act were those set out in Gawooleng Dawang Inc v. Lupton and Others 72 WAIG 1310 at 1311. For the respondent, it was submitted that what should be applied were the principles set out in WALEDF&CU v. Hathaway 75 WAIG 1785 at 1787 flAC) per Murray J. Mr Martin (of Counsel), for the respondent, submitted that that authority was persuasive. In that decision, Murray J held that the test governing the exercise of a court's discretion to grant a stay was this. Such a remedy should be treated as of an ex- ceptional character only to be ordered where to refuse it might leave the appellant, if successful in the appeal, in the position that it might have suffered some irremediable harm by the refusal of the stay in the meantime. I have difficulty with the proposition that there is a serious issue to be tried on the ground that the order requires the of- ficers of the appellant organisations to breach their own rules, because of the terms of s.61 of the Act, and because rules were not referred to before me, and, further, because that point was not pressed very strongly in argument before me at all. Further, ground 1.2(c) was not pressed at all as raising a seri- ous issue to be tried. Something was sought to be made of the allegation that the order denied members access to their elected representatives. However, nothing by way of persuasive argument was put to me to that effect, and, in any event, the arguments before me to that effect seem to be related more to balance of conven- ience. In any event, there was no evidence that that was the case referred to, other than a statement from the bar table which was contradicted by evidence on oath from Mr Gibbs, and I am therefore not satisfied, as a matter of fact, that there is sufficient merit in that argument for the purposes of this ap- plication. As to the other grounds, there was, in fact, a serious issue to be tried on the allegation, not denied of failure to comply with s.35 of the Act, and a failure to comply with s.26(3) of the Act. The obstacle to that being relied on is, of course, that the grounds of appeal as they exist do not contain grounds setting out those allegations. They cannot contain those grounds un- til the Full Bench amends them. I would find that there was a serious issue to be tried if those grounds were so amended. There was, however, a serious issue to be tried on the basis of the argument that natural justice had not been afforded to the applicants. There was a submission from Mr Lovell that the order itself could not be comphed with, and therefore it was a defective order. I did not understand that argument. If it meant that the order could not be complied with because it was inconvenient to the applicants or they did not wish to comply with the or- der, then that certainly does not appear to me to raise a serious issue to be tried. The fact of the matter, as Mr Martin submit- ted, was that the order, until it is revoked or varied by the Commission at first instance or quashed by the Full Bench, is a valid, effective, enforceable order which is required to be complied with. I see no serious issue to be tried raised by that argument. I now turn to the question of the balance of convenience. A number of considerations apply. The applicants have a right to apply to vary the order and have not done so. Orders which might be said to be void or voidable should be restrained in their operation upon an application for a stay of their opera- tion, it was submitted. However, it is not for me to say that they are void or voidable. If these are temporary orders, and there are proper grounds, then they can be varied or the Com- mission can revoke them. If they are not temporary orders, the proper argument would be that they were invalidly made. The Full Bench, and, indeed, the President, taking into account s.6(a), s.26(l)(b) and s.26(l)(c) of the Act, is slow to interfere in the conciliation and arbitration process taking place under s.44 of the Act. The authorities cited by Mr Martin, namely Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc and Another [1981] 148 CLR 170 at 177 (HC), is illustrative of that approach. However, because of s.6(b) and s.6(c) of the Act and the em- phasis upon conciliation and upon the settling of disputes, that case gives some indication only of the attitude which the Commission should take to attempts to restrain the concilia- tion and arbitration process. The real reason for such an ap- proach lies in the interests of the public, s.6(a) and s.6(b) and the balancing of the interests of the parties. Certainly, an or- der which is plainly not a s.44(6)(ba) order or a process al- lowed to continue, which is in fact or in law not a s.44 process ((ie) where nothing is being done to arbitrate over a period whilst nominal s.44(6)(ba) orders remain in place), may at- tract a different approach from the Commission. So far, how- ever, that has not been demonstrated to me to be the case in this matter. I am not persuaded that any real inconvenience, other than in the ability to communicate with their members or other- wise, has been occasioned to the applicants, and I am not sat- isfied that the latter is the case, on what has been put to me so far. 75 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2313 Insofar as any question of the fruits of litigation might be material in a matter such as this, then the merit lies with the respondent who has established a substantial financial loss occurring on the only sworn and unchallenged evidence. In- deed, there is no evidence but that the failures to comply with the order which have occurred are unjustified. True it is, too, that it is difficult for applicants who have not complied with an order, as is the case here, to establish, as a matter of equity, good conscience and the substantial merits of the case, with- out adducing more evidence and putting further arguments than those put to me here, that a stay of the orders not com- plied with should be granted. Further, if the test for matters in this Commission is as Murray J said in WALEDF&CU v Hathaway (op cit) (IAC), then there are no exceptional circumstances which would lead me to grant a stay. Of course, circumstances change and an application under s.49(l 1) of the Act can always be renewed, just as parties can no doubt seek to have the orders made by the Commission at first instance varied or revoked. As to the other question of any urgency, an appeal can be expedited if it is established that it should be, but that is a matter for the Full Bench. I am satisfied that the equity, good conscience and substan- tial merits of the case lie, at this time, with the respondent and I will dismiss the application for a stay. Order accordingly Appearances: Mr A Lovell on behalf of the Australian, Elec- trical, Electronic, Foundry and Engineering Union (Western Australian Branch). Ms S Ellery on behalf of the Australian, Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers' Division, Western Australian Branch. Ms D MacTiernan on behalf of the Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia—Western Australian Branch. Mr N Hodgson on behalf of the Metals and Engineering Workers' Union—Western Australian Branch. Mr K J Martin (of Counsel), by leave, and with him Mr M T McKenna (of Counsel), by leave, on behalf of the respondent.