Secretary of the Ministry of Health v The New  
South Wales Nurses and Midwives' Association  
[2022] NSWSC 1178 (28 September 2022)  
Last Updated: 28 September 2022  
Supreme Court  
New South Wales  
Case Name:  
Secretary of the Ministry of Health v The New South Wales Nurses and  
Midwives’ Association  
Medium Neutral  
Citation:  
[2022] NSWSC 1178  
Hearing  
Date(s):  
11, 12 and 19 July 2022 (Notes received on 25 and 29 July 2022)  
Date of Orders: 28 September 2022  
Decision Date:  
Jurisdiction:  
Before:  
28 September 2022  
Common Law - Administrative Law  
Walton J  
Decision:  
(1) The Amended Summons, insofar that it pertains to pleaded  
contraventions A, B and J, is dismissed.  
(2) The Court declares that The New South Wales Nurses and Midwives’  
Association has contravened the dispute orders made by the Industrial  
Relations Commission on 15 March 2022 in the respects alleged by the  
prosecutor in pleaded contraventions C to I of the Amended Summons.  
(3) The Court imposes a penalty of $25,000 on The New South Wales  
Nurses and Midwives’ Association.  
(4) Grant liberty to the parties to apply within seven days of the  
publication of this judgment.  
Catchwords:  
EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes —  
dispute orders — Industrial Relations Act 1996 (NSW) ss 136, 137 and  
139 —alleged contravention of dispute orders — whether multiple  
separate contraventions of dispute orders — single course of conduct —  
assessment of penalty — sentencing principles — consideration of  
Australian Building and Construction Commissioner v Pattinson (2022)  
314 IR 301; [2022] HCA 13 — principle of totality — objective factors —  
nature and extent of contravening conduct — seriousness of conduct —  
deliberateness of conduct — loss and damage caused — circumstances of  
contravention — general deterrence —specific deterrence — subjective  
factors — penalty imposed  
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations  
Commission — power and jurisdiction — industrial disputes —  
industrial action — conciliation and arbitration — dispute orders —  
public interest — objects of the Industrial Relations Act 1996 (NSW)  
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations  
Commission — power and jurisdiction — appellate jurisdiction —  
statutory right to seek leave to appeal to Full Bench — principles and  
relevant considerations for grant of leave — grant of leave where  
Commissioner fails to give adequate reasons  
COURTS AND TRIBUNALS — jurisdiction of Supreme Court —  
Industrial Relations Act 1996 (NSW) s 139 — collateral challenge, attack  
or review — discretion to entertain the collateral challenge — discretion  
to decline to hear and determine collateral challenge — relevant  
considerations and factors — application to present case  
COURTS AND TRIBUNALS — jurisdiction of Supreme Court —  
privative clause — Industrial Relations Act 1996 (NSW) s 179 — Kirk v  
Industrial Court (NSW) (2010) 239 CLR 531 — whether s 179 prevents  
collateral challenge — decision with non-jurisdictional error of law is  
“final” and not void  
ADMINISTRATIVE LAW — failure to give reasons — whether the  
Commission was under an obligation or duty to give reasons — implied  
statutory obligation to give reasons — “special circumstances” in Public  
Service Board (NSW) v Osmond (1986) 159 CLR 656 — Industrial  
Relations Commission is a quasi-judicial body — required to act  
judicially — required to afford procedural fairness — statutory right of  
appeal — dispute orders affect rights of persons — discussion of content  
and adequacy of reasons  
ADMINISTRATIVE LAW — failure to respond to substantial, clearly  
articulated argument — meaning of “substantial” and “clearly  
articulated” — whether satisfied by dialogue or questioning between  
counsel or representative and Commissioner — practical injustice —  
materiality  
ADMINISTRATIVE LAW — jurisdictional error or error of law —  
whether failure to give reasons amounts to jurisdictional error —  
constructive failure to exercise jurisdiction — denial of procedural  
fairness — February dispute orders void — March dispute orders not  
void  
Legislation  
Cited:  
Aboriginal and Torres Strait Islander Heritage Protection Act 1984  
(Cth), s 10  
Administrative Decisions (Judicial Review) Act 1977 (Cth)  
Australian Courts Act 1828 (Imp), s 3  
Bail Act 2013 (NSW), s 71  
Commonwealth Conciliation and Arbitration Act 1904 (Cth), ss 6, 6A, 19  
Commonwealth Constitution, Ch III; s 51(xxxv)  
Constitution Act 1902 (NSW), Pt 9  
Crimes (Appeal and Review) Act 2001 (NSW), Pt 7; ss 78, 79  
Criminal Justice Act 1967 (UK), s 61  
Environmental Planning and Assessment Act 1979 (NSW), s 109H  
Evidence Act 1995 (NSW), ss 140, 144  
Fair Work Act 2009 (NSW), ss 12, 19, 349, 363, 417, 546  
Fines Act 1996 (NSW), s 4  
Fire and Rescue NSW Act 1989 (NSW), ss 69, 70  
Government and Related Employees' Tribunal Act 1980 (NSW), s 43  
Government Sector Audit Act 1983 (NSW), s 33E  
Government Sector Employment Act 2013 (NSW), s 50  
Health Services Act 1997 (NSW), ss 115, 116, 116H  
Home Building Act 1989 (NSW), ss 3C, 18E, 48K  
Independent Commission Against Corruption Act 1988 (NSW), s 104  
Industrial Arbitration (Special Provisions) Act 1984 (NSW)  
Industrial Arbitration Act 1940 (NSW), ss 84, 100  
Industrial Relations (Public Sector Conditions of Employment)  
Regulation 2014 (NSW), cls 6, 6A  
Industrial Relations Act 1991 (NSW), s 195  
Industrial Relations Act 1996 (NSW), Ch 2 Pt 6, Ch 3, Ch 4, Ch 6A; ss 3,  
10, 13, 17, 19, 38, 84, 106, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139,  
146, 147, 148, 152, 155, 156, 162, 163, 167, 169, 177, 179, 181A, 187, 188,  
191, 355A, 355C, 355E, 357; Sch 4 cl 70(1)  
Industrial Relations Act 2016 (Qld), s 531  
Industrial Relations Amendment (Industrial Court) Act 2016 (NSW),  
Sch 1 cl 16  
Industrial Relations Amendment Act 2005 (NSW)  
Industrial Relations Commission Rules 2009 (NSW), r 13.2  
Interpretation Act 1987 (NSW), ss 34, 35  
Legal Profession Act 1987 (NSW), Pt 11 Div 6; ss 208L, 208M  
Legal Profession Reform Act 1993 (NSW)  
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 4  
Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015  
(NSW), Pt 2 r 3.1  
Police Act 1990 (NSW), s 85  
Public Service Act 1979 (NSW), ss 65A, 116  
Supreme Court Act 1970 (NSW), ss 23, 69, 75, 124  
Supreme Court Rules 1970 (NSW), Pt 72; Sch J Pt 1 cls 1, 2 (under the  
heading “Industrial Relations Act 1996”)  
Teaching Service Act 1980 (NSW), s 12  
Transport Administration Act 1988 (NSW), ss 59, 68K  
Uniform Civil Procedure Rules 2005 (NSW), rr 6.3, 59.3, 59.10  
Workplace Injury Management and Workers Compensation Act 1998  
(NSW), ss 327, 328  
Workplace Relations Act 1996 (Cth), s 170CG  
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)  
Cases Cited:  
A v New South Wales (2007) 230 CLR 500; [2007] HCA 10  
AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen  
(2016) 77 MVR 348; [2016] NSWCA 229  
Aboud v State of New South Wales (Department of School Education)  
[1999] NSWIRComm 449; (1999) 92 IR 32  
Ace Business Brokers Pty Ltd v Phillips-Treby [2000] NSWIRComm  
163; (2000) 100 IR 420  
Ahmad v R [2022] NSWCCA 144  
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992]  
HCA 10  
Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR  
479; [2020] NSWCA 165  
Ali v AAI Limited (2016) 75 MVR 502; [2016] NSWCA 110  
Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012]  
NSWCA 244  
Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33  
Amalgamated Metal Workers Union v Electricity Commission (NSW)  
(1989) 28 IR 155  
Ambulance Service of New South Wales v Buchtmann (2007) 160 IR 57;  
[2007] NSWIRComm 18  
Ambulance Victoria v United Voice (2014) 245 IR 375; [2014] FCA 1119  
Anderson Stuart v Treleavan [2000] NSWSC 283; (2000) 49 NSWLR  
88  
Antonakopoulos v State Bank of NSW (1999) 91 IR 385  
Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43  
NSWLR 729  
Attorney-General (SA) v Tichy (1982) 30 SASR 84  
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170  
CLR 321  
Australian Building and Construction Commissioner v Construction,  
Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260  
FCR 564; [2018] FCA 83  
Australian Building and Construction Commissioner v Construction,  
Forestry, Mining and Energy Union (No 3) [2017] FCA 10  
Australian Building and Construction Commissioner v Construction,  
Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites  
Appeal) (2019) 269 FCR 262; [2019] FCAFC 59  
Australian Building and Construction Commissioner v Construction,  
Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC  
113  
Australian Building and Construction Commissioner v Hall (2018) 261  
FCR 347; [2018] FCAFC 83  
Australian Building and Construction Commissioner v Huddy [2017]  
FCA 739  
Australian Building and Construction Commissioner v Pattinson (2022)  
314 IR 301; [2022] HCA 13  
Australian Building and Construction Commissioner v Pattinson (2019)  
291 IR 286; [2019] FCA 1654  
Australian Commonwealth Shipping Board v Federated Seamen's Union  
of A/asia [1925] HCA 3; (1925) 35 CLR 462  
Australian Competition and Consumer Commission v Hillside (Australia  
New Media) Pty Ltd (t/as Bet365) (No 2) [2016] FCA 698  
Australian Competition and Consumer Commission v Reckitt Benckiser  
(Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181  
Australian Crime Commission v Marrapodi (2012) 42 WAR 351; [2012]  
WASCA 103  
Australian Iron & Steel Ltd v Amalgamated Engineering Union [1959]  
AR (NSW) 329  
Australian Iron & Steel Ltd v Federated Ironworkers Association [1950]  
AR (NSW) 629  
Australian Iron & Steel Ltd v Federated Ironworkers Association [1961]  
AR (NSW) 304  
Australian Liquor, Hospitality and Miscellaneous Workers Union, New  
South Wales Branch v Murawina Mt Druitt Co-op Ltd [2005]  
NSWIRComm 1017  
Australian Manufacturing Workers’ Union v McCain Foods (Aust) Pty  
Ltd (2021) 310 IR 1; [2021] FWCFB 4808  
Australian Salaried Medical Officers' Federation (NSW) v Secretary of  
Health [2018] NSWIRComm 1052  
Australian Tramway Employees' Association v Prahran & Malvern  
Tramway Trust (Union Badge Case) [1913] HCA 53; (1913) 17 CLR 680  
Australian Workers' Union, New South Wales v Bluescope Steel (AIS)  
Pty Limited (2006) 151 IR 153; [2006] NSWIRComm 71  
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA  
26; (1949) 78 CLR 353  
Baker v Australian Workers Union [2006] NSWIRComm 1225  
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR  
279  
Barnier v Secretary, Department of Education [2021] NSWIRComm  
1045  
BHP Steel (AIS) Pty Ltd (now known as BlueScope Steel (AIS) Pty Ltd)  
and The Australian Workers' Union, NSW [2006] NSWIRComm 263  
BHP Steel Ltd v The Australian Workers' Union, New South Wales  
[2003] NSWIRComm 151  
Big W Discount Stores v Donato (1995) 58 IR 239  
Blacktown Workers Club Ltd v Harris (1999) 93 IR 226  
Bluescope Steel (AIS) Ltd v Australian Workers' Union (NSW) (2005)  
138 IR 324; [2005] NSWIRComm 99  
Bluescope Steel (AIS) Ltd v AWU and Anor (No 2) [2005] NSWIRComm  
210  
Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South  
Wales [2005] NSWIRComm 260  
Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South  
Wales [2006] NSWIRComm 274  
BlueScope Steel Limited v Australian Workers’ Union [2018] FCA 1574  
Bluescope Steel Ltd v Australian Workers’ Union, NSW (2004) 137 IR  
176; [2004] NSWIRComm 222  
Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales  
[2006] NSWIRComm 338  
Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143  
Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484  
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336  
Britton and Riverstone Public School [1999] NSWIRComm 181  
Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29  
Brooks v Upper Hunter County Council [1973] AR (NSW) 90  
Building Construction Employees & Builders' Labourers Federation of  
New South Wales v Minister for Industrial Relations (1985) 1 NSWLR  
197  
Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001]  
NSWIRComm 117  
Burwood Cinema Limited and Others v The Australian Theatrical and  
Amusement Employees’ Association [1925] HCA 7; (1925) 35 CLR 528  
Byrne v Rail Corporation of NSW [2012] NSWIRComm 117  
Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008)  
170 FCR 357; [2008] FCA 1292  
Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264  
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67  
NSWLR 372  
Canberra Cleaners Pty Ltd v Commissioner of ACT Revenue (2008) 336  
FLR 1; [2018] ACTSC 208  
Carlson v King (1947) 64 WN (NSW) 65  
Cepus v Industrial Court of New South Wales and Anor (1995) 60 IR 113  
CGEA Transport Ltd t/a Southtrans v Transport Workers Union of  
Australia (2001) 110 IR 211; [2001] NSWIRComm 287  
City of Botany Bay v Federated Municipal and Shire Council Employees'  
Union of Australia, New South Wales Division [2000] NSWIRComm 85  
City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014]  
NSWIRComm 49  
Coles Supermarket (Australia) Pty Ltd v National Union of Workers  
(NSW Branch) [1997] NSWIRComm 24  
Collins v Urban [2014] NSWCATAP 17  
Commins v Massam [1675] EngR 382; (1642) 82 ER 473  
Commonwealth Steamship Owners' Association v Federated Seamen's  
Union of A/asia [1923] HCA 40; (1923) 33 CLR 297  
Commonwealth v Director, Fair Work Building Industry Inspectorate  
(2015) 258 CLR 482; [2015] HCA 46  
Communications, Electrical, Electronic, Energy, Information, Postal,  
Plumbing and Allied Services Union of Australia v Registered  
Organisations Commissioner (2020) 283 FCR 404; [2020] FCAFC 232  
Construction, Forestry, Maritime, Mining and Energy Union v  
Australian Building and Construction Commissioner (the Non-  
Indemnification Personal Payment Case) (2018) 264 FCR 155; [2018]  
FCAFC 97  
Construction, Forestry, Mining and Energy Union (NSW) v Newcrest  
Mining Ltd (2005) 139 IR 50; [2005] NSWIRComm 23  
Construction, Forestry, Mining and Energy Union v Australian  
Industrial Relations Commission [1998] FCA 1404; (1998) 89 FCR 200  
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  
(2015) 230 FCR 298; [2015] FCAFC 25  
Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR  
461; [2010] FCAFC 39  
Construction, Forestry, Mining and Energy Union v Clarke (2006) 149  
IR 224; [2006] FCA 245  
Construction, Forestry, Mining and Energy Union v Williams (2009) 191  
IR 445; [2009] FCAFC 171  
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163  
Crown Employees (Police Officers – 2009) Award (No 2) (2012) 220 IR  
192; [2012] NSWIRComm 104  
Dare v Pulham (1982) 148 CLR 658  
Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364  
Day v SAS Trustee Corporation [2021] NSWCA 71  
Decottignies v NSW Department of Education and Training [2010]  
NSWIRComm 1014  
Dignan v Australian Steamships Pty Ltd [1931] HCA 19; (1931) 45 CLR  
188  
Director General, NSW Department of Education and Training v NSW  
Teachers Federation [2010] NSWIRComm 44  
Director General, NSW Department of Health and New South Wales  
Nurses Association (No 3) [2010] NSWIRComm 190  
Director General, NSW Department of Health v New South Wales  
Nurses Association (No 2) [2010] NSWIRComm 163  
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1;  
[2010] NSWCCA 194  
Director, Fair Work Building Industry Inspectorate v Robinson (2016)  
241 FCR 338; [2016] FCA 525  
Director-General of the New South Wales Department of Education and  
Communities v New South Wales Teachers Federation [2012]  
NSWIRComm 93  
Director-General of the NSW Department of Education and  
Communities and Managing Director of TAFE NSW v New South Wales  
Teachers Federation [2012] NSWIRComm 58  
Director-General, NSW Department of Education and Training v NSW  
Teachers Federation [2010] NSWIRComm 44  
DNA17 v Minister for Immigration and Border Protection [2019] FCAFC  
146  
Dranichnikov v Minister for Immigration and Multicultural Affairs  
(2003) 73 ALD 321; [2003] HCA 26  
Dyldam Developments Pty Ltd v The Owners – Strata Plan No 85305  
[2019] NSWCATAP 229  
East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605;  
[2008] VSCA 217  
Edwards v Justice Giudice [1999] FCA 1836; (1999) 94 FCR 561  
Electrical Trades Union of Australia v. BlueScope Steel (AIS) Pty Limited  
[2005] NSWIRComm 1065  
Electricity Commission v Crump (1993) 48 IR 296  
Entertainment Distributors Co Pty Ltd v Burnard (1993) 49 IR 446  
Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363  
Fakhouri v Secretary for the NSW Ministry of Health [2022] NSWSC  
233  
Federal Airports Corporation v Aerolineas Argentinas [1997] FCA 723;  
(1997) 76 FCR 582  
Federated Ironmakers Association v Commonwealth [1951] HCA 71;  
(1951) 84 CLR 265  
Federated Miscellaneous Workers Union of Australia, WA Branch v  
Nappy Happy Hire Pty Ltd t/as Nappy Happy Service (1994) 56 IR 62  
Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303  
Fire & Rescue NSW on behalf of the Department of Premier and Cabinet  
v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261;  
[2013] NSWIRComm 63  
Fire and Rescue NSW on behalf of Department of Premier and Cabinet v  
New South Wales Fire Brigade Employees' Union [2012] NSWIRComm  
76  
Fire Brigade Employees' Union of New South Wales v Fire and Rescue  
NSW [2014] NSWIRComm 16  
Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377; [1999]  
EWCA Civ 811  
Forster v Jododex [1972] HCA 61; (1972) 127 CLR 421  
Franklins Ltd v National Union of Workers (NSW Branch) (1997) 78 IR  
289  
Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588  
Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA  
48  
General Pants (Trading) Co Pty Ltd v Shonny (unreported, Full  
Commission of New South Wales, IRC 3123 of 1993, 8 September 1994)  
Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76  
Hands v Minister for Immigration and Border Protection (2018) 267  
FCR 628; [2018] FCAFC 225  
Harris v Ansett Transport Industries (Operations) Pty Ltd (1978) 45 FLR  
469  
Health Secretary v New South Wales Nurses and Midwives’ Association  
[2022] NSWIRComm 1047  
Health Secretary v New South Wales Nurses and Midwives’ Association  
[2022] NSWIRComm 1071  
Health Services Union NSW v Health Secretary [2017] NSWSC 1661  
Hill v Director-General, Department of Education & Training (NSW)  
[1998] NSWIRComm 622; (1998) 85 IR 201  
Hill v King (1993) 31 NSWLR 654  
Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512  
Hollingsworth v Commissioner of Police (1998) 47 NSWLR 104  
Holmes a Court v Papaconstuntinos [2011] Aust Torts Reports 82-081;  
[2011] NSWCA 59  
Hossain v Minister for Immigration and Border Protection (2018) 264  
CLR 123; [2018] HCA 34  
Humphries v Cootamundra Ex Services and Citizens Memorial Club Ltd  
(2003) 128 IR 37; [2003] NSWIRComm 211  
Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189  
In the matter of Ming Tian Real Property Pty Ltd (2020) 145 ACSR 329;  
[2020] NSWSC 212  
Industrial Relations Secretary v Public Service Association and  
Professional Officers’ Association Amalgamated Union of New South  
Wales [2022] NSWIRComm 1042  
Industrial Relations Secretary v Public Service Association and  
Professional Officers Association Amalgamated Union of New South  
Wales (2017) 93 NSWLR 723; [2017] NSWSC 71  
Industrial Relations Secretary v Public Service Association and  
Professional Officers Association Amalgamated Union of New South  
Wales (2021) 303 IR 322; [2021] NSWSC 160  
Industrial Relations Secretary v Public Service Association and  
Professional Officers’ Association Amalgamated Union of New South  
Wales (No 2) [2017] NSWSC 430  
Inghams Enterprises v Iogha [2006] NSWSC 456  
Insurance Australia Ltd (t/as NRMA Insurance) v Milton (2016) 77 MVR  
78; [2016] NSWCA 156  
John Fairfax & Sons Pty Ltd v Printing Industry Employees Union  
[1963] AR (NSW) 97  
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163  
CLR 508  
King v State Bank of New South Wales (No 2) (2002) 126 IR 407; [2002]  
NSWIRComm 353  
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1  
Knowles v Anglican Church Property Trust (No 2) [1999] NSWIRComm  
576; (1999) 95 IR 380  
Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315  
Krulow v Glamorgan Spring Bay Council (2013) 23 Tas R 264; [2013]  
TASFC 11  
Latham v Singleton [1981] 2 NSWLR 843  
Lee v Energy Australia (No 4) [2011] NSWIRComm 120  
Li v Attorney General for New South Wales (2019) 99 NSWLR 630;  
[2019] NSWCA 95  
Lord v Flight Centre Ltd (No 2) (2006) 156 IR 420; [2006]  
NSWIRComm 282  
Lord v Flight Centre Ltd [2006] NSWIRComm 188  
Mahenthirarasa v State Rail Authority (NSW) (No 2) (2008) 72 NSWLR  
273; [2008] NSWCA 201  
Margaritte Joanne Colefax v Secretary, Department of Education (No 3)  
[2019] NSWIRComm 1000  
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25  
Marroun v State Transit Authority [2016] NSWSC 1830  
McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343  
Melbourne Steamship Company Ltd v Moorehead [1912] HCA 69; (1912)  
15 CLR 333  
Metropolitan Coal Co of Sydney Ltd v Australian Coal & Shale  
Employees' Federation [1917] HCA 64; (1917) 24 CLR 85  
Metropolitan Gas Co v Federated Gas Employees' Industrial Union  
[1925] HCA 5; (1925) 35 CLR 449  
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002)  
209 CLR 597; [2002] HCA 11  
Monier PGH (Holdings) Ltd v Horsey ( 1998) 86 IR 63  
Monk v Dow Corning Australia Pty Ltd [1984] 2 NSWLR 485  
Moore v Doyle [1969] CthArbRp 285; (1969) 15 FLR 59  
Moray v Federated Engine Drivers & Firemen’s Union [1963] AR (NSW)  
830  
Morrison v Milner (2009) 181 IR 443; [2009] NSWIRComm 57  
Moylan v Nutrasweet [2000] NSWCA 337  
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94  
MZAPC v Minister for Immigration and Border Protection (2021) 390  
ALR 590; [2021] HCA 17  
New South Wales Department of Education v New South Wales  
Teachers Federation (2010) 194 IR 340; [2010] NSWIRComm 55  
New South Wales Fire Brigade Employees Union and Fire and Rescue  
NSW on behalf of the Director Public Employment [2012] NSWIRComm  
1002  
New South Wales Independent Teachers' Association v St Aloysius  
College [1976] AR (NSW) 91  
New South Wales Land and Housing Corporation v Orr (2019) 100  
NSWLR 578; [2019] NSWCA 231  
Nguyen v Nguyen (1990) 169 CLR 245  
NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546; [2016]  
HCA 33  
Notification under section 130 by the NSW Department of Community  
Services of a dispute with the Public Service Association and  
Professional Officers' Association Amalgamated Union of New South  
Wales; Re Workbans [2000] NSWIRComm 66  
NSW Department of Education and Training v NSW Teachers  
Federation; Re Student Reports Bans (2006) 157 IR 329; [2006]  
NSWIRComm 346  
NSW Teachers’ Federation v NSW Department of Education and  
Training (2000) 100 IR 441; [2000] NSWIRComm 169  
Osmond v Public Service Board (NSW) [1983] 1 NSWLR 691  
Osmond v Public Service Board (NSW) [1984] 3 NSWLR 447  
Outboard World Pty Ltd v Muir (1993) 51 IR 167  
Pattinson v Australian Building and Construction Commissioner (2020)  
282 FCR 580; [2020] FCAFC 177  
PDS Rural Products v Corthorn (1987) 19 IR 153  
Perrott v XcelleNet Australia Ltd (1998) 84 IR 255  
Pettitt v Dunkley [1971] 1 NSWLR 376  
Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170  
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and  
Citizenship (2013) 251 CLR 322; [2013] HCA 53  
Police Association of New South Wales v Commissioner of Police [2019]  
NSWIRComm 1076  
Police v Stacy (2016) 125 SASR 50; [2016] SASC 54  
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166  
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194  
CLR 355  
PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1;  
[2015] HCA 36  
Public Employment Office v The NSW Fire Brigade Employees Union  
[1999] NSWIRComm 556  
Public Service Association and Professional Officers Association  
Amalgamated Union of New South Wales v Roads and Maritime  
Services (2015) 250 IR 412; [2015] NSWIRComm 16  
Public Service Association and Professional Officers Association  
Amalgamated Union of New South Wales on behalf of Pearcey, Barnett  
and Woelfl v Department of Attorney General and Justice - Corrective  
Services NSW [2012] NSWIRComm 33  
Public Service Association and Professional Officers' Association  
Amalgamated Union (NSW) v Secretary of the Treasury (2014) 242 IR  
318; [2014] NSWCA 112  
Public Service Association and Professional Officers' Association  
Amalgamated Union (NSW) (on behalf of Rosanna Ganino) v Roads and  
Maritime Services [2013] NSWIRComm 106  
Public Service Association and Professional Officers’ Association  
Amalgamated Union of New South Wales v Industrial Relations  
Secretary of New South Wales (2021) 306 IR 89; [2021] NSWCA 64  
Public Service Association and Professional Officers’ Association  
Amalgamated Union of NSW South Wales v Secretary for Industrial  
Relations [2018] NSWIRComm 1061  
Public Service Association of South Australia Inc v Industrial Relations  
Commission (SA) (2012) 249 CLR 398; [2012] HCA 25  
Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA  
7
Public Service Board v NSW Teachers Federation [1969] AR (NSW) 21  
Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR  
356; [2000] SASC 51  
Quinn v Commonwealth Director of Public Prosecutions (2021) 106  
NSWLR 154; [2021] NSWCA 294  
Qureshi v De Haas (No 2) [2009] NSWIRComm 139  
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA  
13; (1980) 144 CLR 13  
R v Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights'  
Union [1980] HCA 42; (1980) 144 CLR 462  
R v Cawthorne; Ex parte Federated Clerks Union of Australia (South  
Australia Branch) (1979) 22 SASR 433  
R v Civil Service Appeal Board, Ex parte Cunningham [1992] ICR 816  
R v De Simoni (1981) 147 CLR 383  
R v Gamble [1983] 3 NSWLR 356  
R v Industrial Appeals Court; Ex parte Maher [1978] VicRp 12; [1978]  
VR 126  
R v Mosely (1992) 28 NSWLR 735  
R v Pham (2015) 256 CLR 550; [2015] HCA 39  
R v Rayment (2010) 200 A Crim R 48; [2010] NSWCCA 85  
R v Scott [2005] NSWCCA 152  
R v Secretary of State for the Home Department; Ex parte Doody [1993]  
UKHL 8; [1994] 1 AC 531  
Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd  
[1989] HCA 41; (1989) 167 CLR 513  
Re Australian Railways Union; Ex parte Public Transport Corporation  
(1993) 51 IR 22; [1993] HCA 28  
Re Club Employees (State) Award (2002) 122 IR 272; [2002]  
NSWIRComm 362  
Re Crown Employees (Teachers in Schools and TAFE and Related  
Employees) Salaries and Conditions Award (2004) 133 IR 254; [2004]  
NSWIRComm 114  
Re Ferguson; Public Service Association (NSW) v Public Service Board  
(NSW) (1988) 25 IR 148  
Re Health and Community Employees Psychologists (State) Award  
(2001) 109 IR 458; [2001] NSWIRComm 302  
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah  
(2001) 206 CLR 57; [2001] HCA 22  
Re Minister for Immigration and Multicultural and Indigenous Affairs;  
Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56  
Re Minister for Immigration and Multicultural and Indigenous Affairs;  
Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6  
Re Operational Ambulance Officers (State) Award (2001) 113 IR 384;  
[2001] NSWIRComm 331  
Re Operational Ambulance Officers (State) Award (No 4) (2016) 255 IR  
193; [2016] NSWIRComm 2  
Re Optimisation Australia Pty Limited [2018] NSWSC 31  
Re Pastoral Industry (State) Award; Application by Australian Business  
Industrial for a new award and another matter (2001) 104 IR 168;  
[2001] NSWIRComm 27  
Re Printing and Allied Trades Employers Association of New South  
Wales [2014] NSWIC 6  
Re Storeworkers - IGA Distribution Pty Ltd New South Wales  
Distribution Centres Award 2002 (2002) 124 IR 1; [2002]  
NSWIRComm 156  
Redmond v Director General, NSW Department of Health, on behalf of  
the Ambulance Service of New South Wales [2012] NSWIRComm 147  
Reich v Client Server Professionals of Australia Pty Ltd (2000) 49  
NSWLR 551; [2000] NSWIRComm 143  
Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320; [2002] NSWCA 250  
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33  
Richens v Tresilian & Dun (1993) 32 NSWLR 301  
Riverina Wines Pty Ltd v Registrar of the Workers Compensation  
Commission of NSW & Ors [2007] NSWCA 149  
Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211  
Rookes v Barnard [1964] UKHL 1; [1964] AC 1129  
Rowe v Transport Workers' Union of Australia [1998] FCA 1646; (1998)  
90 FCR 95  
Royer v Western Australia (2009) 197 A Crim R 319; [2009] WASCA 139  
Sasterawan v Morris [2008] NSWCA 70  
Secretary Department of Education v Australian Education Union of  
New South Wales Teachers Federation Branch [2022] NSWIRComm  
1051  
Secretary for The Treasury v Public Service Association & Professional  
Officers’ Association Amalgamated Union of NSW (2014) 89 NSWLR  
688; [2014] NSWCA 138  
Secretary NSW Department of Education v The Australian Education  
Union New South Wales Teachers Federation Branch [2022] NSWSC  
263  
Secretary of the Department of Education v Australian Education Union  
of New South Wales Teachers Federation Branch [2022] NSWIRComm  
1049  
Secretary, Ministry of Health in respect of Hunter New England Local  
Health District and New South Wales Nurses and Midwives’ Association  
[2021] NSWIRComm 1046  
Seiffert v Prisoners Review Board [2011] WASCA 148  
Shaw v Deputy Registrar Buljan [2016] FCA 829  
Skilled Engineering Limited v Automotive, Food, Metals, Engineering,  
Printing and Kindred Industries Union (2001) 108 IR 116; [2001] FCA  
1397  
Soliman v University of Technology Sydney (2012) 207 FCR 277; [2012]  
FCAFC 146  
Solution 6 Holdings Ltd v Industrial Relations Commission (NSW)  
(2004) 60 NSWLR 558; [2004] NSWCA 200  
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247  
Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA  
29  
Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337  
State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257  
State Wage Case 1983 (1983) 5 IR 1  
State Wage Case 1999 (1999) 88 IR 363  
State Wage Case 2022 [2022] NSWIRComm 1081  
Stegbar Pty Ltd v Transport Workers' Union of New South Wales (2008)  
173 IR 350; [2008] NSWIRComm 104  
Stemp v Australian Glass Manufacturers Co Ltd [1917] HCA 29; (1917)  
23 CLR 226  
Strathfield Group Ltd v Hall (2002) 121 IR 158; [2002] NSWIRComm  
373  
Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8  
Sutton v BE Australia WD Pty Ltd (No 3) [2017] NSWSC 689  
Sydney Water Corporation v Australian Services Union (NSW and ACT  
Branch) (2005) 146 IR 388; [2005] NSWIRComm 305  
Taudevin v Egis Consulting Australia Pty Ltd (No 1) (2001) 131 IR 124;  
[2001] NSWIRComm 340  
Taylor v Environment Protection Authority (2000) 50 NSWLR 48  
TD Preece & Co Pty Ltd v Industrial Court (NSW) (2008) 177 IR 172;  
[2008] NSWCA 285  
Terry v Huntington (1679) 145 ER 557  
The Director-General, NSW Department of Health, in respect of the  
Hunter New England Area Health Service and Australian Medical  
Association (NSW) Limited (2008) 182 IR 353; [2008] NSWIRComm  
112  
The Public Service Association and Professional Officers’ Association  
Amalgamated (NSW) v Director of Public Employment (2012) 250 CLR  
343; [2012] HCA 58  
The Waterside Workers’ Federation of Australia v Burgess Brothers Ltd  
[1916] HCA 2; (1916) 21 CLR 129  
Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451  
TKWY v The Queen (2002) 212 CLR 124; [2002] HCA 46  
Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90  
NSWLR 268; [2015] NSWCA 287  
Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354  
Transport for NSW v Chapoterera [2022] NSWSC 976  
Transport Industry – General Carriers Contract Determination (2016)  
257 IR 294; [2016] NSWIRComm 3  
Transport Secretary v The Australian Workers’ Union, New South Wales  
[2022] NSWIRComm 1053  
Transport Workers Union of NSW v Australian Industrial Relations  
Commission (2008) 166 FCR 108; [2008] FCAFC 26  
Transport Workers’ Union of New South Wales v TNT Australia Pty Ltd  
(2006) 154 IR 256  
Twohill v Mental As Anything Touring Pty Ltd & Ors [2008]  
NSWIRComm 17  
Van Huisstede v Commissioner of Police (2000) 98 IR 57; [2000]  
NSWIRComm 97  
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465  
viagogo AG v Australian Competition and Consumer Commission  
[2022] FCAFC 87  
Waddell v Australian Workers' Union [1922] HCA 29; (1922) 30 CLR  
570  
WAEE v Minister for Immigration and Multicultural and Indigenous  
Affairs [2003] FCAFC 184; (2003) 236 FCR 593  
Walker v Industrial Court of New South Wales (1994) 53 IR 121  
Walsh v Sainsbury [1925] HCA 28; (1926) 36 CLR 464  
Wattie v Industrial Relations Secretary on behalf of the Secretary of the  
Department of Justice (No 2) [2018] NSWCA 124  
Webb v Goulburn Masonic Village (2004) 136 IR 309; [2004]  
NSWIRComm 258  
Western Suburbs District Ambulance Committee v Tipping [1957] AR  
(NSW) 273  
Wheatley v Federated Ironworkers Association (1959) 60 SR (NSW) 161  
at 180; (1959) 76 WN (NSW) 727  
Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977  
Williams v Hursey (1959) 103 CLR 30  
Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design  
[2018] NSWLEC 146  
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480;  
[2013] HCA 43  
Witthahn v Chief Executive of Hospital and Health Services (2021) 312  
IR 314; [2021] QCA 282  
Wood v Boral Resources (NSW) Pty Ltd (unreported, Supreme Court of  
New South Wales, No 4980 of 1992, 28 October 1993)  
Xian v Rail Corporation New South Wales [2009] NSWIRComm 1083  
Xuereb v Viola (1989) 18 NSWLR 453  
XX v Attorney General of New South Wales [2011] NSWSC 658  
Zweck v Town of Gawler (2015) 124 SASR 319; [2015] SASCFC 172  
Texts Cited:  
Amnon Rubinstein, Jurisdiction and Illegality (Clarendon Press, 1965)  
Convention relating to the Status of Refugees (opened for signature 28  
July 1951, 189 UNTS 150, entered into force 22 April 1954), art 1A  
Edward I Sykes, ‘The Hursey Case: Part 1; The Trade Union Aspect’  
(1960) 33 Australian Law Journal at page 432  
Enid Campbell, ‘Collateral Challenge of the Validity of Governmental  
Action’ [1998] MonashULawRw 12; (1998) 24 Monash University Law  
Review 272  
Harold Weintraub, “English Origins of Judicial Review by Prerogative  
Writ: Certiorari and Mandamus” (1963) 9 New York Law Forum 478  
HB Higgins, A New Province for Law and Order (Constable, 1922)  
Industrial Relations Commission, “Contact Us”  
<https://www.irc.nsw.gov.au/irc/about-us/contact-us.html> (accessed  
4 August 2022)  
Justice Margaret J Beazley (as Her Excellency then was), Paul T Vout  
and Sally E Fitzgerald, Appeals and Appellate Courts in Australia and  
New Zealand (LexisNexis Butterworths, 2014)  
Justice Mark Leeming, Authority to Decide: The Law of Jurisdiction in  
Australia (Federation Press, 2nd ed, 2020)  
Mark Aronson, ‘Criteria for Restricting Collateral Challenge’ (1998) 9  
Public Law Review 237  
Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of  
Administrative Action and Government Liability (Lawbook, 6th ed,  
2017)  
Michael Gillooly and Nii Lante Wallace-Bruce, “Civil Penalties in  
Australian Legislation” [1994] UTasLawRw 14; (1994) 13(2) University  
of Tasmania Law Review 269  
New South Wales, Parliamentary Debates, Legislative Council, on 17  
April 1996, 21 September 2016 and 11 October 2016  
Public Health System Nurses’ and Midwives’ (State) Award 2021 (NSW),  
cl 53  
Shorter Oxford English Dictionary  
Supreme Court Practice Note SC CL 3  
William Paley, The Law and Practice of Summary Convictions on Penal  
Statutes by Justices of the Peace (S. Sweet, 2nd ed, 1827)  
William Wade, Administrative Law (Oxford University Press, 5th ed,  
1982)  
Category:  
Parties:  
Principal judgment  
Secretary of the Ministry of Health (Prosecutor)  
The New South Wales Nurses and Midwives' Association (Defendant)  
Representation:  
Counsel:  
V Bulut (Prosecutor)  
P Boncardo (Defendant)  
Solicitors:  
NSW Crown Solicitor’s Office (Prosecutor)  
NEW Law Pty Ltd (Defendant)  
File Number(s): 2022/00097277  
HEADNOTE  
[This headnote is not to be read as part of the judgment.]  
The defendant, The New South Wales Nurses and Midwives’ Association, represents nurses  
and midwives employed in the NSW Health Service. The defendant organised strikes that  
occurred on 15 February and 31 March 2022. On those days, members of the Association and  
employees of the Health Service took industrial action by stopping work.  
In the lead up to both those strikes, the prosecutor, the Secretary of the Ministry of Health,  
notified the Industrial Relations Commission (“the Commission”) of an industrial dispute and  
then sought dispute orders that the defendant, its officers, employees and members cease and  
refrain from taking industrial action. On 14 February and 25 March 2022, the Commission  
made dispute orders that, amongst other things, ordered the Association the cease organising  
and taking industrial action (“the February Orders” and “the March Orders”, respectively). On  
both occasions, evidence was put and submissions were made by both the prosecutor and  
defendant to the Commission but the Commissioner did not give any reasons.  
The prosecutor initiated proceedings in the Supreme Court and alleged that the defendant  
committed ten contraventions of the Commission’s dispute orders and sought penalties under  
s 139 of the Industrial Relations Act 1996 (“the Act”). The defendant challenged the legal  
validity of the February and March Orders on the grounds that the orders were vitiated by  
jurisdictional error because no reasons were given and the Commissioner failed to respond to  
a substantial, clearly articulated argument made by the defendant. The defendant also  
challenged some of the pleaded contraventions on the ground that the particulars could not  
establish breaches of the orders or that the defendant could not lawfully take industrial action.  
The Court (Walton J) held:  
Collateral Attack  
(1) An attack on the validity of an order, certificate or decision is not to be characterised as a  
collateral attack if determining the attack is necessary for the court or tribunal to determine  
whether it has jurisdiction to decide the broader claim brought before it. Where an attack on  
the validity of an order, certificate or decision does not go to the jurisdiction of the court or  
tribunal, it can be properly characterised as a collateral attack: at [178].  
Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266;  
Dyldam Developments Pty Ltd v The Owners—Strata Plan 83505  
[2020] NSWCA 327, considered.  
Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28;  
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49;, referred to.  
(2) The attacks by the defendant on the validity of the dispute orders are properly to be  
characterised as a collateral attack because the existence of legally valid dispute orders is not a  
precondition to the jurisdiction of the Supreme Court under s 139 of the Act: at [180].  
Franklins Ltd v National Union of Workers (NSW Branch) (1997) 78  
IR 289; Secretary, NSW Department of Education v The Australian  
Education Union New South Wales Teachers Federation (NSWTF)  
Branch [2021] NSWSC 1628, followed.  
Dyldam Developments Pty Ltd v The Owners—Strata Plan 83505  
[2020] NSWCA 327, considered and distinguished  
The Validity of the Dispute Orders  
(3) Although there is no free-standing common law duty to give reasons for making a statutory  
decision, “special circumstances” existed such that the Commission was under an implied  
statutory obligation to give reasons in arbitration when making dispute orders: at [366].  
Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986]  
HCA 7, considered and distinguished.  
New South Wales Fire Brigade Employees Union and Fire and Rescue  
NSW on behalf of the Director Public Employment [2012]  
NSWIRComm 1002, considered and affirmed.  
Anderson Stuart v Treleavan [2000] NSWSC 283; (2000) 49 NSWLR  
88; Attorney-General (NSW) v Kennedy Miller Television Pty Ltd  
(1998) 43 NSWLR 729; Campbelltown City Council v Vegan (2006)  
67 NSWLR 372; [2006] NSWCA 284; Entertainment Distributors Co  
Pty Ltd v Burnard (1993) 49 IR 446; Lord v Flight Centre Ltd (No 2)  
(2006) 156 IR 420; [2006] NSWIRComm 282; Pettitt v Dunkley  
[1971] 1 NSWLR 376; Xuereb v Viola (1989) 18 NSWLR 453; Webb v  
Goulburn Masonic Village (2004) 136 IR 309; [2004] NSWIRComm  
258, referred to.  
Inghams Enterprises v Iogha [2006] NSWSC 456, distinguished.  
R v Secretary of State for the Home Department; Ex parte Doody  
[1993] UKHL 8; [1994] 1 AC 531; R v Civil Service Appeal Board, Ex  
parte Cunningham [1992] ICR 816, not followed.  
(4) The failure of the Commission to give reasons was an error of law within jurisdiction. The  
provision of reasons is not a precondition to the valid exercise of the Commission's power to  
make dispute orders. The failure of the Commission to provide reasons is an error of law but,  
without more, does not amount to jurisdictional error: at [431], [433].  
Li v Attorney General for New South Wales (2019) 99 NSWLR 630;  
[2019] NSWCA 95, considered.  
Public Service Association and Professional Officers' Association  
Amalgamated Union (NSW) v Secretary of the Treasury (2014) 242  
IR 318; [2014] NSWCA 112; Re Minister for Immigration and  
Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR  
212; [2003] HCA 56; Seiffert v Prisoners Review Board [2011] WASCA  
148; Soliman v University of Technology Sydney (2012) 207 FCR 277;  
[2012] FCAFC 146, referred to.  
(5) A dialogue between the Bench and parties in the course of argument will usually not  
amount to consideration or response to a substantial, clearly articulated argument. This will  
usually depend on the formality of proceedings and regard may be had to the practice of the  
Commission: at [458]-[459].  
Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443;  
[2012] NSWCA 244; Dranichnikov v Minister for Immigration and  
Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; PDS Rural  
Products v Corthorn (1987) 19 IR 153; Re Minister for Immigration  
and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001]  
HCA 22; Re Pastoral Industry Award (2001) 104 IR 168; [2001]  
NSWIRComm 27; Transport Industry – General Carriers Contract  
Determination (2016) 257 IR 294; [2016] NSWIRComm 3, referred to.  
(6) In the First Dispute, the defendant made two substantial, clearly articulated arguments  
against the making of dispute orders. The Commission’s failure to respond to these  
contentions amounted to a constructive failure to exercise jurisdiction and thus jurisdictional  
error. Therefore, the February Orders are void. Pleaded contraventions A and B, which alleged  
contraventions of the February Orders, must be dismissed: at [490]-[492].  
(7) In the Second Dispute, the defendant’s arguments were not substantial and there is not a  
real possibility that the Commission could have reached a different outcome if the arguments  
were fully considered. There was no jurisdictional error made out with the March Orders: at  
[519], [522].  
Contraventions  
(8) The particulars under pleaded contraventions C to I established that the defendant  
contravened the March Orders by organising industrial action and inducing, advising,  
authorising, supporting, encouraging, directing, aiding or abetting members to take or  
organise industrial action: at [573], [583], [589].  
(9) The particulars under pleaded contravention J were not capable of establishing that the  
defendant contravened the March Orders by failing to refrain from taking industrial action.  
Pleaded contravention J must be dismissed: at [605].  
Australian Building and Construction Commissioner v Hall (2018)  
261 FCR 347; [2018] FCAFC 83; Banque Commerciale SA (in liq) v  
Akhil Holdings Ltd (1990) 169 CLR 279; Taylor v Environment  
Protection Authority (2000) 50 NSWLR 48, referred to.  
(10) Discussion of whether a union is legally capable of “taking” industrial action: at [606]-  
[669].  
Australian Commonwealth Shipping Board v Federated Seamen's  
Union of A/asia (1925) 35 CLR 46; Australian Tramway Employees'  
Association v Prahran & Malvern Tramway Trust (Union Badge  
Case) [1913] HCA 53; (1913) 17 CLR 680; Bluescope Steel Ltd v  
Australian Workers’ Union, NSW (2004) 137 IR 176; [2004]  
NSWIRComm 222; Burwood Cinema Limited and Others v The  
Australian Theatrical and Amusement Employees’ Association [1925]  
HCA 7; (1925) 35 CLR 528; Construction, Forestry, Mining and  
Energy Union v Clarke (2006) 149 IR 224; [2006] FCA 245;  
Federated Engine Drivers' and Firemen's Association of A/asia v  
Broken Hill Pty Co Ltd [1911] HCA 31; (1911) 12 CLR 398; Federated  
Ironmakers Association v Commonwealth [1951] HCA 71; (1951) 84  
CLR 265; Moore v Doyle [1969] CthArbRp 285; (1969) 15 FLR 59;  
Public Service Association and Professional Officers’ Association  
Amalgamated Union of New South Wales v Industrial Relations  
Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39; R v Bowen; Ex  
parte Amalgamated Metal Workers' and Shipwrights' Union [1980]  
HCA 42; (1980) 144 CLR 462; Rowe v Transport Workers' Union of  
Australia [1998] FCA 1646; (1998) 90 FCR 95; Secretary NSW  
Department of Education v The Australian Education Union New  
South Wales Teachers Federation Branch [2022] NSWSC 263; Stemp  
v Australian Glass Manufacturers Co Ltd [1917] HCA 29; (1917) 23  
CLR 226; Wheatley v Federated Ironworkers Association (1959) 60  
SR (NSW) 161; Williams v Hursey (1959) 103 CLR 30, referred to.  
Appropriate Penalty  
(11) There are some differences between the statutory context of the Fair Work Act 2009 (Cth)  
and the Act such that the principles in Australian Building and Construction Commissioner v  
Pattinson (2022) 314 IR 301; [2022] HCA 13 are not entirely applicable. Nevertheless,  
deterrence is a strong and significant factor in determining the appropriate penalty: at [727]-  
[739].  
Australian Building and Construction Commissioner v Pattinson  
(2022) 314 IR 301; [2022] HCA 13, considered.  
(12) The defendant made a conscious decision to flagrantly defy the orders of the Commission.  
However, the evidence shows that the defendant took steps to minimise the impact of their  
strike action on patients. The disruption caused to the public health system was substantial  
and some patients and employees were put at risk. The defendant is a good industrial citizen  
with no prior contraventions: at [811]-[854].  
TABLE OF CONTENTS  
Item  
Starting  
Paragraph  
INTRODUCTION  
[1]  
[6]  
THE INDUSTRIAL RELATIONS ACT  
The Industrial Relations Commission  
Conciliation and Arbitration of Industrial Disputes  
Dispute Orders  
[7]  
[23]  
[36]  
[60]  
[88]  
[88]  
Alleged Contraventions of Dispute Orders  
FACTUAL BACKGROUND  
The Events Before the February Orders  
The First Dispute and February Orders  
The Events Following the February Orders  
The Second Dispute and March Orders  
The Events Following the March Orders  
THE PRESENT PROCEEDINGS  
Procedural History  
[99]  
[105]  
[111]  
[119]  
[126]  
[126]  
[135]  
[141]  
[150]  
[150]  
[153]  
[155]  
Issues  
Obligation to Act Expeditiously  
COLLATERAL ATTACK  
Submissions of the Prosecutor  
Submissions of the Defendant  
The Defendant’s Attack on the Validity of the Commission’s Orders  
were a Collateral Attack  
Director of Housing v Sudi  
Dyldam Developments  
Consideration  
[161]  
[167]  
[178]  
Section 179 of the Act Does Not Prevent Collateral Attack for Decisions [196]  
that Involve Jurisdictional Error  
This Court has Discretion to Consider and Determine a Collateral  
Attack  
[206]  
The Historical Approach  
Subsequent Developments in Australia  
Consideration  
[207]  
[212]  
[221]  
[239]  
On Balance, this Court should Collaterally Review the Commission’s  
Orders  
THE VALIDITY OF THE DISPUTE ORDERS  
Submissions of the Defendant  
[255]  
[255]  
[256]  
[258]  
Failure to Give Reasons  
Failure to Respond to a Substantial and Clearly Articulated  
Argument  
Submissions of the Prosecutor  
[260]  
[261]  
[267]  
Failure to Give Reasons  
Failure to Respond to a Substantial and Clearly Articulated  
Argument  
There is an Implied Statutory Obligation on the Commission to Give  
Reasons  
[270]  
Public Service Board v Osmond  
[273]  
[284]  
[291]  
The Approach of the English Courts  
The Approach of the Court of Appeal and this Court  
Authorities Concerning the Obligation of the Commission to  
Give Reasons  
[313]  
NSW FBEU v Fire and Rescue NSW  
Consideration  
[323]  
[339]  
[388]  
[397]  
[406]  
[426]  
The Failure to Give Reasons Does Not Amount to Jurisdictional Error  
Relevant Authorities  
Li v Attorney General  
Consideration  
Failure to Respond to a Substantial and Clearly Articulated Argument [440]  
Relevant Authorities  
[441]  
[455]  
[471]  
[484]  
[505]  
[526]  
[526]  
[530]  
[531]  
[536]  
[542]  
[548]  
[548]  
[554]  
[559]  
[563]  
Dialogue or Exchange with the Bench  
Jurisdictional Error  
The February Orders are Infected with Jurisdictional Error  
The March Orders are Not Infected with Jurisdictional Error  
CONTRAVENTIONS  
Overview  
Submissions of the Prosecutor  
Pleaded Contraventions C to F  
Pleaded Contraventions B and J  
Number of Contraventions  
Submissions of the Defendant  
Pleaded Contraventions C to F  
Pleaded Contraventions B and J  
Number of Contraventions  
The First Group of Contested Particulars Establish Breaches of the  
March Orders  
The Second Group of Contested Particulars Establish Breaches of the  
March Orders  
[576]  
[584]  
[590]  
The Third Group of Contested Particulars Establish Breaches of the  
March Orders  
The Particulars of Pleaded Contravention J do not Establish that the  
Defendant Failed to Refrain from Taking Industrial Action  
The Deficient Particulars  
[590]  
[606]  
Whether a Union can “Take” Industrial Action and be in  
breach of an Order to “Refrain from Taking Industrial Action”  
Pleaded Contraventions C to I were in the Same Course of Conduct  
Relevant Authorities on the “Course of Conduct” Principle  
Consideration  
[670]  
[671]  
[681]  
[689]  
Note on Pleaded Contraventions A and B  
THE APPROPRIATE PENALTY  
Submissions of the Prosecutor  
Submissions of the Defendant  
[693]  
[693]  
[702]  
[709]  
The Deliberateness of the Defendant’s Conduct is a Relevant Factor in  
Determining the Appropriate Penalty  
The Application of ABCC v Pattinson  
[715]  
[740]  
The Defendant’s Lack of Prior Contraventions can be Considered as a  
Mitigating Factor  
This Court can take Judicial Notice of Matters of Common Knowledge  
in the Industrial Context  
[743]  
Penalties Imposed in Past Decisions can be Considered  
Assessment of Penalty  
[772]  
[811]  
[811]  
[816]  
Maximum Penalty  
Nature and Extent of the Contravening Conduct and  
Deliberateness of the Contravention  
Loss and Damage Caused  
General Deterrence  
Specific Deterrence  
Subjective Factors  
Conclusion  
[828]  
[834]  
[838]  
[842]  
[848]  
[855]  
CONCLUSION  
JUDGMENT  
INTRODUCTION  
1. On 15 February and 31 March 2022, employees of NSW Health entities (which includes  
the Local Health Districts and Specially Networks) who were members of The New  
South Wales Nurses and Midwives’ Association (referred to as the defendant or “the  
Association”) went on strike. They did so based on serious concerns about pay and  
workplace conditions. The defendant, which has existed as an industrial association  
registered under New South Wales law since 1931, has never previously been found to  
have contravened a dispute order.  
2. In the lead up to both those strikes, the prosecutor, the Secretary of the Ministry of  
Health (referred to as the prosecutor or “the Secretary”), notified the Industrial  
Relations Commission (“the Commission”) of an industrial dispute and then sought  
dispute orders. On 14 February and 25 March 2022, the Commission made dispute  
orders (“the February Orders” and “the March Orders”, respectively) under ss 136(1)(c)  
and 137(1) of the Industrial Relations Act 1996 (NSW) (“the Act” or “the NSW Act”). The  
Commission ordered the defendant, its officers, employees, agents and members  
employed in NSW Health entities to, amongst other things, “immediately cease  
organising and refrain from taking any form of industrial action”.  
3. When those orders were made, the Commission gave no reasons for its decision. In this  
judgment, I have concluded that the February Orders were a nullity because the  
Commission did not address a substantial component of the defendant’s case against the  
making of those orders. Although I have found that the Commission committed an error  
of law in the making of the March Orders, those orders were not infected by  
jurisdictional error.  
4. By an Amended Summons filed in Court on 12 July 2022, the prosecutor sought the  
imposition of monetary penalties against the defendant under ss 139(3)(e) and (4) of the  
Act. As the February Orders were infected by jurisdictional error, they were only  
purported orders in fact, not valid orders in law. Accordingly, there can be no  
contravention by the defendant. The Amended Summons must be dismissed with  
respect to the alleged contraventions of the February Orders.  
5. I am satisfied that the defendant deliberately and flagrantly contravened the March  
Orders, which I have found to be legally valid, by organising industrial action over seven  
consecutive days,. In all the circumstances, it is appropriate to impose a penalty that  
reflects this serious contravention.  
THE INDUSTRIAL RELATIONS ACT  
6. It is helpful to begin by considering the Act, which provides a legal framework for the  
conduct of industrial relations in New South Wales. I will elaborate about the broader  
powers and functions of the Commission, including its award-making functions, because  
reference will be made to those powers and functions throughout this judgment.  
The Industrial Relations Commission  
7. Chapter 4 of the Act establishes the Industrial Relations Commission and sets out its  
functions, membership, organisation, procedure and powers, including appeals from the  
Commission’s decisions.  
8. The general functions of the Commission are set out in s 146 of the Act as follows:  
(1) The Commission has the following functions—  
(a) setting remuneration and other conditions of employment,  
(b) resolving industrial disputes,  
(c) hearing and determining other industrial matters,  
(d) inquiring into, and reporting on, any industrial or other matter  
referred to it by the Minister,  
(e) functions conferred on it by this or any other Act or law.  
(2) The Commission must take into account the public interest in the exercise of its  
functions and, for that purpose, must have regard to—  
(a) the objects of this Act, and  
(b) the state of the economy of New South Wales and the likely effect of  
its decisions on that economy.  
9. The Commission may determine its own procedure subject to the Act: s 162(1). Some of  
the powers of the Commission are set out in s 162(2) of the Act as follows:  
(2) The Commission—  
(a) is to act as quickly as is practicable, and  
(b) is to conduct its proceedings publicly or, if it considers it necessary,  
privately, and  
(c) may require the presentation of the respective cases of the parties  
before it to be limited to the periods of time that it determines are  
reasonably necessary for the fair and adequate presentation of the  
cases, and  
(d) may require evidence or argument to be presented in writing and  
decide on the matters on which it will hear oral evidence or argument,  
and  
(e) may sit at any place, and  
(f) may require a document to be served outside the State, and  
(g) may adjourn proceedings to any time and place (including for the  
purpose of enabling the parties to negotiate a settlement), and  
(h) may dismiss at any stage any proceedings before it if it considers  
the proceedings are frivolous or vexatious, and  
(i) may exercise, on its own initiative, any function exercisable by it on  
application, and  
(j) may, on its own initiative, inquire into any industrial matter.  
10. As presently constituted, the members of the Commission are the Chief Commissioner  
and Commissioners appointed by the Governor: ss 147, 148. The Commission is usually  
constituted by a single member: s 155(1)(a).  
11. The Act provides a wide range of mechanisms to address issues contained within awards  
and industrial instruments. The Commission may make an award in accordance with the  
Act setting out fair and reasonable conditions of employment for employees: s 10.  
Awards may be varied or rescinded in certain circumstances: s 17. Awards must also be  
reviewed “to modernise awards, to consolidate awards relating to the same industry and  
to rescind obsolete awards”: s 19.  
12. The meaning of “setting fair and reasonable conditions of employment for employees” in  
s 10 of the Act was explained by the Full Bench (Walton J, President, Commissioners  
Stanton and Newall) in City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386;  
[2014] NSWIRComm 49 (“City of Sydney Award”) at 390-391 [19]-[22]:  
[19] The terms ‘fair’ and ‘reasonable’ in s 10 of the Act import a requirement that  
the conditions of employment set represent a proper and proportionate balance  
between the entitlements afforded employees and the interests of those employing  
them.  
[20] Consideration of what is fair and reasonable for an employee will necessarily  
involve a consideration of what is fair and reasonable having regard to the nature  
and circumstances of the employment afforded to the employee by an employer.  
That inquiry cannot be made in a vacuum. It must also extend to the broader  
context in which the employment occurs and ultimately, by effect of s 146 of the  
Act, the state of the economy in New South Wales.  
[21] The assessment required by s 10 will often involve consideration of collective  
relations between unions and employers or employer associations and, in  
appropriate cases, consideration of the history of terms and conditions that the  
parties chose to apply, formally and informally, to employees who will now be  
covered by the proposed award.  
[22] In particular cases, the Commission may be required to take into account not  
only differences between employers or industries in which employment is  
undertaken, but relevant differences between employees or classes of employees in  
a workplace, enterprise, project or industry. What may represent a fair and  
reasonable condition for one set of employees may not be for another, even where  
the employees are engaged by the same employer. That particular assessment may  
depend on the history as well as consideration of the present circumstances of the  
work to be performed.  
13. The Commission has over the years developed Wage Fixing Principles, which provide  
guidance as to the making or variation of awards. The most recent set of principles were  
enunciated in State Wage Case 2022 [2022] NSWIRComm 1081 (Chief Commissioner  
Constant, Commissioner Sloan and Commissioner Webster). These principles, which  
have their origin in the State Wage Case 1983 (1983) 5 IR 1, continue to play an  
important role for the Commission’s work.  
14. However, in recent years, the powers of the Commission have been constrained to a  
considerable extent. The effect of s 146C(7) of the Act is that the award-making powers  
of the Commission are constrained by that section and any policy declared in a  
regulation which the Commission is required to give effect to: The Public Service  
Association and Professional Officers’ Association Amalgamated (NSW) v Director of  
Public Employment (2012) 250 CLR 343; [2012] HCA 58 at [17] (French CJ) and [58]  
(Hayne, Crennan, Kiefel and Bell JJ, as Kiefel CJ then was). The policy can be found in  
the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014  
(NSW) (“the Regulation”).  
15. In relation to public sector employees, they may only be awarded increases in  
remuneration or other conditions of employment if employee-related costs in respect of  
those employees are not increased by more than 2.5% per annum (or 3% per annum for  
the 2022-2023 and 2023-2024 financial years) as a result of the increases awarded: cls 6  
and 6A of the Regulation. In doing so, it is necessary for the Commission to take into  
account increases in superannuation contributions: Secretary for The Treasury v Public  
Service Association & Professional Officers’ Association Amalgamated Union of NSW  
(2014) 89 NSWLR 688; [2014] NSWCA 138 at 699 [38] (Bathurst CJ, with whom  
Beazley P, as Her Excellency then was, and Meagher JA agreed).  
16. Increases beyond the prescribed percentage can “only” be made “if sufficient employee-  
related cost savings have been achieved to fully offset the increased employee-related  
costs beyond 2.5% per annum”. This is a high bar. It is noted that “whole of government  
savings” would not constitute “employee-related cost savings” because, to do so, would  
be contrary to the purpose of s 146C as a “fiscal restraint”: Re Crown Employees  
(Correctional Officers, Department of Corrective Services) Award 2007 for Kempsey,  
Dillwynia and Wellington Correctional Centres (2014) 248 IR 145; [2014]  
NSWIRComm 44 at 166-168 [62]- [63] (Walton J, President, Staff J and Commissioner  
Tabbaa) (“Re Correctional Officers”).  
17. However, it is not an insurmountable hurdle. For example, in Re Operational  
Ambulance Officers (State) Award (No 4) (2016) 255 IR 193; [2016] NSWIRComm 2  
(“Re Ambulance Award”), the Full Bench (Walton J, President, Kite AJ and  
Commissioner Tabbaa) found that the value of overtime savings generated by new  
rostering arrangements could offset the increase above 2.5% per annum in employee-  
related costs that resulted from the creation of a new employment classification of  
“Critical Care Paramedic (Aeromedical)” with higher pay: at 221-222 [116]-[117].  
Nevertheless, as I observed earlier this year, the Commission’s power is “highly  
circumscribed” by s 146C of the Act and the government’s policy promulgated by the  
Regulation: Secretary NSW Department of Education v The Australian Education  
Union New South Wales Teachers Federation Branch [2022] NSWSC 263 at [29]  
(Walton J) (“Education Secretary v AEU [2022]”).  
18. An appeal against a decision of the Commission constituted by a single member lies to  
the Full Bench, which is to consist of at least three members: ss 155(1)(b), 156(1), 187(1).  
An appeal brought pursuant to Ch 4 Pt 7 of the Act requires leave of the Full Bench  
unless made by the Minister: ss 188(1), (4). The Full Bench is to grant leave to appeal “if,  
in its opinion, the matter is of such importance that, in the public interest, leave should  
be granted”: s 188(2).  
19. The requirement for leave to appeal and the Parliament’s intent can be seen by the very  
comprehensive second reading speech by the then-Attorney General and Minister for  
Industrial Relations, the Hon Jeffrey W Shaw QC (later a Judge of this Court), for the  
Industrial Relations Bill 1995 (NSW) (“the 1995 Bill”). The speech (New South Wales,  
Parliamentary Debates, Legislative Council, 23 November 1995 at pages 3852-3853)  
relevantly stated as follows:  
The system of appeals under the [Industrial Relations Act 1991 (NSW) (repealed)]  
has given rise to excessive and, oftentimes, unwarranted litigation. The provisions  
concerning appeals have been revised in a number of key respects with particular  
emphasis on avoiding such problems. Under these provisions, appeals may be  
made against any decision of the commission whether made as a result of  
contested proceeding or made by consent, and - subject to discretionary extension  
- are to be made within 21 days. ...  
Appeals to the full bench may be made only by leave; and the bill ensures that  
stand-alone "leave to appeal" hearings may be heard separately from the overall  
merits of any appeal. Likewise, the bill specifically permits the full bench to  
delegate certain functions to a single member. These provisions have the aims of  
reducing any backlog in the hearing of appeals, and filtering out insubstantial or  
unmeritorious appeals.  
The nature of an appeal must ultimately depend on the statute under which the  
appeal is authorised. As the proper construction of the appeal provisions in the  
1991 Act has been the subject of differing interpretations, it is the Government's  
intention to resolve the legislative ambiguity concerning appeal principles. The  
appeal provisions within the bill have been redrafted to provide clear legislative  
direction concerning the principles to be applied by full benches when considering  
appeals against discretionary decisions of single members. The approach adopted  
by the High Court of Australia in judgments such as Mace v Murray - [1955] HCA  
2; (1958) 92 CLR 370 - and House v The King - (1936) 55 CLR 499 - commends  
itself as the appropriate principle to apply in appeals against decisions involving  
an exercise of discretion, which we would regard as including decisions concerning  
wages and conditions of employment, and unfair dismissals.  
The approach endorsed in the bill is that an appellate bench is not justified in  
interfering with the decision at first instance, except in limited circumstances  
where the appellate bench reaches a clear conclusion that, by reason of some error,  
whether of fact or law, the primary tribunal not only has taken a view different  
from that which the members of the appeal tribunal would have taken, but has  
failed to exercise properly the discretion committed to it. These appeal principles  
are intended to apply even in the comparatively isolated circumstances where  
additional evidence is received by the appellate bench: there is no intention to  
have two types of appeals and differing approaches to the nature of the appeal  
principles depending on whether additional matters are adduced. Last, unless such  
an approach was otherwise inconsistent with an express statutory provision, it is  
intended that the general appeal principles I have outlined should also apply to  
decisions made by the Chief Industrial Magistrate.  
20. For completeness, I note that the 1995 Bill lapsed when the Parliament was prorogued  
and was re-introduced in nearly identical terms as the Industrial Relations Bill 1996  
(NSW) (“the 1996 Bill”), which later became the Act: see New South Wales,  
Parliamentary Debates, Legislative Council, 17 April 1996 at page 82 (The Hon Jeffrey  
W Shaw QC). Nothing turns on this technicality. The second reading speech of the 1995  
Bill, when read with the additional remarks of the second reading speech of the 1996  
Bill, may be considered in determining Parliament’s intent and the meaning of statutory  
provisions: Interpretation Act 1987 (NSW) s 34 (“Interpretation Act”).  
21. Generally, the Full Bench is likely to grant leave where the issues in the appeal are of  
some novelty, raise substantial issues of law and principle, and have implications for the  
wider jurisprudence of the Commission. The proper principles can be summarised as  
follows:  
(1) It must be remembered that s 191 of the Act provides that an appeal to the Full  
Bench is an appeal in the strict sense: King v State Bank of New South Wales (No  
2) (2002) 126 IR 407; [2002] NSWIRComm 353 at 427 [64] (Wright J, President,  
Walton J, Vice-President, and Kavanagh J); Justice Margaret J Beazley (as Her  
Excellency then was), Paul T Vout and Sally E Fitzgerald, Appeals and Appellate  
Courts in Australia and New Zealand (LexisNexis Butterworths, 2014) at 450-452  
[10.47]. Therefore, the Full Bench should only intervene to correct error and it is  
not enough that the appellate tribunal would have come to a different view: Aboud  
v State of New South Wales (Department of School Education) (1999) 92 IR 32;  
[1999] NSWIRComm 449 at 42-43 (Wright J, President, Walton J, Vice-President,  
and Schmidt J); Ace Business Brokers Pty Ltd v Phillips-Treby [2000]  
NSWIRComm 163; (2000) 100 IR 420 at 428 (Wright J, President, Glynn and  
Hungerford JJ); Strathfield Group Ltd v Hall (2002) 121 IR 158; [2002]  
NSWIRComm 373 at 169 [45] (Wright J, President, Peterson and Kavanagh JJ).  
The Full Bench should not substitute its own views as to a decision that was  
reasonably open at first instance: Antonakopoulos v State Bank of NSW (1999) 91  
IR 385 at 392 (Wright J, President, Walton J, Vice-President, and Commissioner  
Redman).  
(2) Leave will not be lightly or automatically granted: Perrott v XcelleNet  
Australia Ltd (1998) 84 IR 255 at 265 (Hungerford, Peterson and Schmidt JJ).  
This is because the statutory scheme makes clear that the legislature intended that  
the Full Bench would filter appeals by granting leave to only those cases meeting  
the public interest test stated in s 188(2). The raising of a jurisdictional issue by an  
appellant does not, of itself, establish a basis for the grant of leave. Each case has  
to be judged against the statutory criterion. When leave to appeal is sought in  
relation to a jurisdictional issue, the Commission should have regard to whether  
there is a demonstrable case that the Commission has exceeded or failed to  
exercise its jurisdiction: Knowles v Anglican Church Property Trust (No 2) [1999]  
NSWIRComm 576; (1999) 95 IR 380 at 381-382 (Walton J, Vice-President, Glynn  
J and Commissioner Patterson) (“Knowles v Anglican Church”).  
(3) It must be emphasised that the extent to which errors, whether jurisdictional  
or not, be ultimately established is not a matter to be finally determined on the  
question of leave but only on a full hearing of the appeal. Leave to appeal is  
attracted if the Full Bench is satisfied that the appeal raises “serious issues to be  
tested, are reasonably arguable and are of a nature proper to attract leave to  
appeal”: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm  
117 at 326 [4] (Walton J, Vice-President, Hungerford J and Commissioner  
Bishop).  
(4) It is relevant to consider whether the appeal raises issues going to the proper  
administration of justice: Humphries v Cootamundra Ex Services and Citizens  
Memorial Club Ltd (2003) 128 IR 37; [2003] NSWIRComm 211 at 53 [77] (Walton  
J, Vice-President, Deputy President Harrison and Commissioner O'Neill).  
(5) Leave would ordinarily, in the absence of changed circumstances, be refused  
where an appellant raises arguments or presses issues on the appeal which were  
not squarely raised at first instance: Caltex Petroleum Pty Ltd v Harmer (1999) 92  
IR 264 at 269 (Wright J, President, Walton J, Vice-President, and Hungerford J).  
This is not to say that the admission of new evidence per se would have this result,  
but that the bringing of, in substance, a new or materially different case on appeal  
may constitute a basis for the refusal of an application for leave to appeal.  
(6) Mere contest as to findings of fact which might otherwise remain open on the  
evidence will generally, in the absence of other considerations, not attract leave:  
Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484 at 484 [4]  
(Walton J, Vice-President, Hungerford J and Commissioner Cambridge). It must  
be kept in mind that the Full Bench should not interfere with findings of fact  
unless the Full Bench is of the opinion that they were not reasonably open on the  
evidence: Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201  
(Hill J).  
22. Consistent with the second reading speech, in exercising its powers under s 192 of the  
Act, the Full Bench must identify a “House v The King error” (that is, an error that falls  
within one of the grounds contained in the oft-cited passage in House v The King (1936)  
55 CLR 499; [1936] HCA 40 by Dixon, Evatt and McTiernan JJ at 504-505) at least in  
relation to discretionary decisions: TD Preece & Co Pty Ltd v Industrial Court (NSW)  
(2008) 177 IR 172; [2008] NSWCA 285 at 187 [77] (Basten JA); Public Service  
Association and Professional Officers' Association Amalgamated Union (NSW) v  
Secretary of the Treasury (2014) 242 IR 318; [2014] NSWCA 112 at 326 [27] (Basten JA  
with whom Ward JA, as her Honour then was, and Bergin CJ in Eq agreeing) (“PSA v  
Treasury Secretary [2014]”); Public Service Association and Professional Officers  
Association Amalgamated Union of New South Wales v Roads and Maritime Services  
(2015) 250 IR 412; [2015] NSWIRComm 16 at 416 [10] (Walton J, President, Kite AJ and  
Commissioner Newall).  
Conciliation and Arbitration of Industrial Disputes  
23. Chapter 3 of the Act is titled “Industrial disputes” and sets out a procedure for the  
Commission to conciliate and arbitrate industrial disputes that arise within its  
jurisdiction. The Dictionary to the Act defines “industrial action” and “industrial  
dispute” in the following terms:  
industrial action means a strike by employees or a lock-out by an employer,  
and includes—  
(a) a practice relating to the performance of work, adopted in  
connection with an industrial dispute, that restricts, limits or delays  
the performance of work, or  
(b) a ban, limitation or restriction affecting the performance of work,  
or the offering or acceptance of work, that is adopted in connection  
with an industrial dispute, or  
(c) any failure or refusal in connection with an industrial dispute to  
attend for work or to perform work,  
but does not include any action taken by employees with the agreement of their  
employer or any action taken by employers with the agreement of their employees.  
industrial dispute means a dispute (including a question or difficulty) about an  
industrial matter, and includes the following:  
(a) a demarcation dispute,  
(b) a threatened or likely industrial dispute,  
(c) a situation that is likely to give rise to an industrial dispute if  
preventative action is not taken.  
24. Section 130(1) of the Act allows certain bodies, including an employer and industrial  
organisation, but not individual employees, to notify the Commission of an industrial  
dispute. Alternatively, the Commission itself may act on its own initiative to resolve an  
industrial dispute: s 130(2).  
25. The Commission has the power to convene a compulsory conference: s 131(1). To  
facilitate the effective resolution of a dispute, the Commission may require the  
attendance of any person whose presence the Commission considers would help in its  
resolution: s 132(1). Alternatively, the Commission may confer with a person without  
requiring their attendance: s 132(3).  
26. Section 133 of the Act requires that the Commission “must first attempt to resolve an  
industrial dispute by conciliation”. In doing so, the Commission is under a statutory  
command “to do everything that seems to be proper to assist the parties to agree on  
terms for the resolution of the dispute”: s 134(1). The Commission may make  
recommendations or give directions: s 134(2). This includes making recommendations  
or giving directions to the parties to bargain in good faith: s 134(4). The Commission can  
make arrangements or give directions to convene and conduct conferences with the  
parties: s 134(3).  
27. Sometimes, conciliation will resolve an industrial dispute. Other times, it may not. Only  
if an industrial dispute is not resolved by conciliation may the Commission deal with the  
dispute by arbitration: s 135(1). Before arbitration, the Commission must issue a  
certificate of attempted conciliation: s 135(2). A certificate is should not be lightly issued  
because they signal a failure of the primary dispute settling mechanism under the Act.  
Before a certificate is issued the relevant party must be given a reasonable opportunity to  
be heard as to whether a direction or recommendation under s 134(2) of the Act should  
be taken into account: NSW Teachers’ Federation v NSW Department of Education and  
Training (2000) 100 IR 441; [2000] NSWIRComm 169 at 445 [15] (Wright J, President,  
Walton J, Vice-President, and Commissioner Connor).  
28. Conciliation (or, more aptly, its failure) is, therefore, the “jurisdictional prerequisite” to  
the exercise of any powers by the Commission in arbitral proceedings: Construction,  
Forestry, Mining and Energy Union (NSW) v Newcrest Mining Ltd (2005) 139 IR 50;  
[2005] NSWIRComm 23 at 57 [20] (Walton J, Vice-President, Boland J, as his Honour  
then was, and Staff J). The Act discusses the interplay between the issuing of a certificate  
and industrial action in two provisions:  
(1) The Commission must consider the effect that any industrial action in  
connection with the industrial dispute is having on the parties and public  
generally: s 135(4); and  
(2) The Commission “must...without delay” issue a certificate if the Commission  
decides that industrial action or duress necessitates the exercise of its arbitral  
power: s 135(7).  
29. In Education Secretary v AEU [2022], I outlined the aspects of s 135 of the Act at [48]  
as follows:  
(1) The mechanism of the issuing of a certificate ensures that reasonable attempts  
have been made to resolve the industrial dispute by conciliation (see s 135(2) and  
(6)) and that there is a clear distinction drawn between conciliation and  
arbitration (see ss 135 (1), (2), (3), (8) and (9)).  
(2) The determination to issue a certificate lies in the discretion of the  
Commission. The exercise of that discretion is guided by what the Commission  
considers constitutes “reasonable attempts”. That assessment will undoubtedly be  
informed by issues such as the complexity of the industrial dispute and the effect  
of any actual or anticipated industrial action on “the parties” (see s 135(4)) and the  
public generally (s 135(4)).  
(3) An application for a certificate may be made by any person authorised to notify  
the Commission of a dispute which includes any entity referred to in s 135(6).  
(4) Copies of the certificate are to be issued to “the parties” and the “Chief  
Commissioner.  
30. In arbitration proceedings, the Commission has a broad range of powers under s 136 of  
the Act. That section states:  
136 Arbitration of dispute  
(1) The Commission may, in arbitration proceedings, do any one or more of the  
following:  
(a) make a recommendation or give a direction to the parties to the  
industrial dispute,  
(b) make or vary an award under Part 1 of Chapter 2,  
(c) make a dispute order under Part 2,  
(d) make any other kind of order it is authorised to make (including an  
order made on an interim basis).  
(2) Any such action may be taken by the Commission on its own initiative or on  
application by any person authorised to notify the Commission of the industrial  
dispute.  
31. With respect to a dispute order in s 136(1)(c) of the Act, ss 137 and 138 of the Act provide  
as follows:  
137 Kinds of dispute orders  
(1) The Commission may make the following kinds of dispute orders when dealing  
with an industrial dispute in arbitration proceedings—  
(a) The Commission may order a person to cease or refrain from taking  
industrial action.  
(b) The Commission may order an employer to reinstate or re-employ  
any one or more employees who were dismissed in the course of the  
industrial dispute or whose dismissal resulted in the industrial dispute.  
(c) The Commission may order an employer not to dismiss employees  
in the course of the industrial dispute if the employer has threatened to  
do so.  
(d) The Commission may order a person to cease a secondary boycott  
imposed in connection with the industrial dispute.  
(2) If employees are taking industrial action in connection with the industrial  
dispute, the Commission may order the employees to cease taking that industrial  
action before it makes any other kind of dispute order against the employer.  
(3) A dispute order may not provide for the payment of compensation, lost  
remuneration or any other amount.  
138 Making of dispute orders  
(1) A dispute order may be made only against—  
(a) a party or likely party to the industrial dispute, or  
(b) a member, officer or employee of an industrial organisation that is  
such a party or likely party, or  
(c) a person engaged, or likely to be engaged, in a secondary boycott in  
connection with the industrial dispute.  
(2) A dispute order—  
(a) must clearly identify the persons against whom the order is made  
and who are bound by the order, and  
(b) must state a time within which the order is to be complied with or  
state a period during which it remains in force, and  
(c) may be varied or revoked by the Commission at any time.  
(3) If an employee is reinstated or re-employed under this Part, the Commission  
may order that the period of employment of the employee with the employer is  
taken not to have been broken by the dismissal.  
32. The second reading speech of the 1995 Bill (New South Wales, Parliamentary Debates,  
Legislative Council, 23 November 1995 at pages 3850-3851 (The Hon Jeffrey W Shaw  
QC)) relevantly stated as follows:  
The process is simple: if consultation at the workplace proves futile, employers and  
unions will be encouraged to use the expertise of the commission in the resolution  
of their differences, first by conciliation, and with arbitration available as required.  
At all stages throughout this process the parties will be held accountable for their  
conduct. To detail this process further, initially the commission must deal with all  
industrial disputes by conciliation. When attempting conciliation, the commission  
is empowered to do everything it considers proper to assist the parties to resolve  
the dispute, including arranging for compulsory conferences. Consistent with  
addressing concerns raised in the review process, the paper work needed to bring a  
dispute before the commission will be vastly simplified.  
...  
[The Commission] may use any or all of the following devices: continue  
conciliation; make recommendations or directions; make or vary awards; make  
dispute orders; and make any other kind of order it is authorised to make,  
including orders on an interim basis. It dispenses with the artificial and academic  
constraints of the "interests/rights" dichotomy, and truly focuses on ensuring the  
resolution of disputes in a prompt and fair manner with the minimum of legal  
technicality. The legislation recognises that an essential part of the powers which  
should be available to the commission to resolve disputes is the ability to direct the  
actions of the parties.  
33. It is clear that the Act makes the Commission the principal organ to assist with the  
resolution of industrial disputes. It is also clear that Parliament intended for industrial  
disputes to be resolved by negotiation between the parties themselves or conciliation  
with the assistance of the Commission (following notification under s 130). This is  
evidenced by the fact that the Commission’s arbitral powers are not enlivened unless the  
Commission is satisfied that “there is no reasonable likelihood that the dispute will be  
resolved by conciliation”: s 135(6). To facilitate effective conciliation, Parliament  
conferred broad and significant powers on the Commission to require attendance of  
people, make recommendations and directions, and to facilitate conferences between the  
parties. This is so that the Commission is well placed to assist parties in resolving their  
disputes by conciliation.  
34. In Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire  
Brigade Employees' Union of New South Wales (2013) 235 IR 261; [2013]  
NSWIRComm 63 (“FRNSW v FBEU [2013]”), the Full Bench (Boland J, President,  
Walton J, Vice-President, and Staff J) explained at 273-274 [46] that:  
The conciliation process is not so much about making judgments about the rights  
and wrongs of industrial action; rather it is principally designed to focus on the  
issues in dispute and to bring about a quick, fair and just resolution of those issues  
by agreement or upon the basis of the Commission’s non-binding  
recommendation or direction and with a minimum of legal technicality. If  
successful, it would follow any industrial action would cease.  
35. It is in this context that the industrial relations system in New South Wales, the powers  
of the Commission and, most relevantly, the nature of dispute orders, must be  
understood.  
Dispute Orders  
36. It is plain from the above analysis that Parliament intended that the making of dispute  
orders to be a last resort: Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union,  
New South Wales [2005] NSWIRComm 260 at [29] (Boland J, as his Honour then was).  
Accordingly, there is no presumption that, in the face of threatened industrial action, a  
dispute order will be made: Industrial Relations Secretary v Public Service Association  
and Professional Officers’ Association Amalgamated Union of New South Wales [2022]  
NSWIRComm 1042 at [23] (Commissioner Sloan) (“Industrial Relations Secretary v  
PSA [2022]”).  
37. The use of the word “may” in ss 136(1) and 137(1) indicate the discretionary nature of the  
power to make dispute orders: NSW Department of Education and Training v NSW  
Teachers Federation; Re Student Reports Bans (2006) 157 IR 329; [2006]  
NSWIRComm 346 at 336 [36] (Deputy President Harrison) (“Education Department v  
NSWTF [2006]”). In so doing, the Commission must have regard to the public interest,  
objects of the Act and the likely effect on the economy of New South Wales: ss 3, 146(2).  
38. It must be remembered that dispute orders are not lightly made by the Commission:  
City of Botany Bay v Federated Municipal and Shire Council Employees' Union of  
Australia, New South Wales Division [2000] NSWIRComm 85 at [8] (Schmidt J)  
(“Botany Bay v FMSCEU”); BHP Steel Ltd v The Australian Workers' Union, New  
South Wales (2003) 136 IR 240; [2003] NSWIRComm 423 at 261 [88] (Haylen J)  
(“BHP v AWU [2003] NSWIRComm 423”).  
39. In Sydney Water Corporation v Australian Services Union (NSW and ACT Branch)  
(2005) 146 IR 388; [2005] NSWIRComm 305 (“Sydney Water v ASU”), the Full Bench  
(Wright J, President, Walton J, Vice-President and Commissioner Stanton) stated at  
403-404 [37] that, in furthering the objects of the Act, “it is vital that the Commission  
recognise the broad discretion granted by [the Act] to fashion appropriate relief by  
reference to the merits of the industrial dispute itself and the steps necessary to resolve  
it”. This involves a variety of considerations, including the “public interest in managing  
the industrial dispute in a fair and just manner with minimum disruption and  
disputation”. This passage was cited approvingly in BlueScope Steel (AIS) Pty Ltd v  
Australian Workers’ Union, New South Wales (2006) 153 IR 176; [2006] NSWIRComm  
149 at [24]–[26] (Wright J, President, Walton J, Vice-President, and Marks J)  
(“BlueScope v AWU [2006] NSWIRComm 149”) and Public Service Association and  
Professional Officers’ Association Amalgamated Union of New South Wales v  
Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 at 791 [128]  
(Bathurst CJ with whom Gleeson and Simpson JJA agreed) (“PSA v Industrial Relations  
Secretary [2018]”).  
40. This observation is consistent with the view expressed by the Marks J in Director  
General, NSW Department of Education and Training and the Managing Director of  
TAFE v NSW Teachers Federation [2010] NSWIRComm 77 (“Education Director-  
General v NSWTF [2010] NSWIRComm 77”) at [14]-[15]:  
[14] However, it is also necessary to make reference to one additional matter,  
namely the context in which dispute orders are made and the part that dispute  
orders play in the overall regulation of industrial matters in New South Wales.  
Chapter 3 of the Industrial Relations Act deals with industrial disputes and  
provides for mandatory conciliation and then arbitration. There is provision in the  
Act for the enforcement of awards and determinations made by the industrial  
tribunal. Furthermore, the tribunal is empowered to make dispute orders (s 136)  
of a kind described in s 137 and subject to conditions set out in s 138. Section 139  
empowers this Court to impose a penalty for breach of a dispute order.  
Accordingly, the regulation of industrial disputes in New South Wales involves the  
empowerment of a third party umpire to make binding orders on parties which  
can be enforced through mechanisms established by the State and which include  
the creation of civil penalties as part of the armoury of measures that may be taken  
to ensure compliance with and enforcement of awards, orders and determinations.  
[15] The existence of a system such as that established by the Industrial Relations  
Act 1996 reflects a sophisticated and civilised approach to dealing with industrial  
disputation, including differences of opinion which do not necessarily manifest  
themselves in any industrial action.  
41. I also respectfully agree with the observations of Boland J (as his Honour then was) in  
Bluescope Steel (AIS) Ltd v Australian Workers' Union (NSW) (2005) 138 IR 324;  
[2005] NSWIRComm 99 (“BlueScope v AWU [2005] NSWIRComm 99”) at [106(1)]  
where his Honour stated:  
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.  
42. The relevant principles to the exercise of discretion can be seen in the Commission’s past  
decisions.  
43. First, the ability of a union or employer to use the Commission’s powers, and whether  
conciliation and arbitration has been used, is a significant factor that informs the  
discretionary considerations of the Commission when deciding whether to make dispute  
orders. In Director General, NSW Department of Health v New South Wales Nurses  
Association (No 2) [2010] NSWIRComm 163 (“Health Director v NSWNA [2010]”), the  
President, Boland J, stated at [17]:  
Nevertheless, it was always open to either party, or the Association in particular,  
given its frustration in not being able to make progress with the Department, to  
approach the Commission for assistance, but no approach was made. It is a weak  
excuse to say that the Department would only maintain its opposition in  
Commission's proceedings and that is why no application to the Commission was  
made. It completely overlooks the Commission's extensive conciliation and  
arbitration powers. It was submitted by counsel for the Association that the  
Association wanted the nurse/patient ratio dealt with quickly and it seemed to be  
suggested an arbitration on such a complex issue would be interminably long,  
citing the Department's alleged penchant for drawn out arbitration proceedings.  
44. In BlueScope v AWU [2006] NSWIRComm 149, the Full Bench (Wright J, President,  
Walton J, Vice-President, and Marks J) held at 187-188 [26] that:  
Many industrial disputes have the potential to conflagrate and the Commission’s  
broad discretionary powers — including the power to make orders under s  
137(1)(a) — are vital to prevent such a conflagration. The ability, in arbitration, to  
order industrial action to cease — to enable the parties to resolve the dispute  
efficiently and fairly under the auspices of the Commission rather than leaving the  
matter to be determined by the economic and industrial power of the participants  
without reference to the public interest — is one of the most important features of  
the system created by the Act.  
45. Secondly, the conduct of the parties in industrial disputes, including whether there has  
been any good faith bargaining, meaning negotiations and participation in conciliation,  
is a relevant factor. It is relevant to consider whether there has been compliance of the  
Commission’s previous orders and recommendations: Botany Bay v FMSCEU at [6]-[7]  
(Schmidt J); Industrial Relations Secretary v PSA [2022] at [34]-[35] (Commissioner  
Sloan).  
46. Thirdly, the effect on the economy of New South Wales is a mandatory relevant  
consideration under s 146(2) of the Act. In FRNSW v FBEU [2013], it was identified that  
there is a “need to protect the public interest from the damaging effects of industrial  
action”: at 272 [41] (Boland J, President, Walton J, Vice-President, and Staff J). In this  
respect, any negative effect on the economy, disruption to the provision of essential  
services, health and safety risks, and the broader implications for the public should be  
considered.  
47. Those factors are also relevant in the Commission’s award-making context and guidance  
can be derived from those cases, which also rely on s 146(2) of the Act: see generally  
Application for Crown Employees (Public Sector – Salaries 2020) Award and Other  
Matters (No 2) (2020) 301 IR 321; [2020] NSWIRComm 1066 (Chief Commissioner  
Constant, Commissioners Murphy and Sloan); Crown Employees (Police Officers –  
2009) Award (No 2) (2012) 220 IR 192; [2012] NSWIRComm 104 (Walton J, Vice-  
President, Staff J and Commissioner Tabbaa); Re Health and Community Employees  
Psychologists (State) Award (2001) 109 IR 458; [2001] NSWIRComm 302 at 479 [52]  
(Wright J, President, Hungerford J, Deputy President Sams and Commissioner  
McKenna).  
48. In Re Crown Employees (Teachers in Schools and TAFE and Related Employees)  
Salaries and Conditions Award (2004) 133 IR 254; [2004] NSWIRComm 114, an  
enlarged Full Bench (Wright J, President, Walton J, Vice-President, Boland J, as his  
Honour then was, Deputy President Grayson and Commissioner McLeay) explained at  
365-366 [432] the treatment of economic considerations in the award-making process as  
follows:  
The economic and financial position of the State and the effects of our decision on  
the New South Wales economy have played a significant role in our decision, but  
not a determinative one. It is our statutory duty to fix fair and reasonable rates of  
pay and conditions. In a matter, such as this one, where a compelling basis for  
increases in rates of pay has been demonstrated, then the Commission must give  
recognition to that conclusion even though it may temper the final result in  
recognition of economic considerations. The terms of s 146 of the Act require no  
more than this, particularly in the light of the paramount requirements of s 10 of  
the Act.  
49. In the same way, economic factors are not determinative in an application for dispute  
orders, but they may properly sway or temper whether dispute orders are made and, if  
made, the extent or reach of those orders.  
50. Fourthly, when considering the consequences of industrial action, the Commission is not  
limited to only considering economic impacts. The “public interest” is very broad. For  
example, the public interest can include the effect on primary and secondary school  
children and their education: see New South Wales Department of Education v New  
South Wales Teachers Federation (2010) 194 IR 340; [2010] NSWIRComm 55 at 349  
[41] (Staff J) (“Education Department v NSWTF [2010]”).  
51. Fifthly, any provisions contained in awards about dispute resolution processes are also  
relevant because it would be inconsistent with the objects of the Act to “turn a blind eye”  
or disregard terms or obligations under an industrial instrument made under the Act:  
see, eg, Bluescope Steel Limited (formerly BHP Steel Limited) v The Australian  
Workers' Union, New South Wales (No 2) (2005) 141 IR 329; [2005] NSWIRComm 36  
at 330 [4(2)] (Wright J, President, Walton J, Vice-President, and Marks J) (“BlueScope  
(No 2) [2005]”); Transport Secretary v The Australian Workers’ Union, New South  
Wales [2022] NSWIRComm 1053 at [9]- [10], [12] (Commissioner Sloan) (“Transport  
Secretary v AWU”); Health Secretary v New South Wales Nurses and Midwives’  
Association [2022] NSWIRComm 1047 at [13]- [14] (Commissioner Sloan) (“Health  
Secretary v NSWMNA [2022] NSWIRComm 1047”). Legislative and regulatory  
provisions can also be relevant: Education Department v NSWTF [2010] at 350 [44]  
(Staff J).  
52. Sixthly, the Commission has discretion to refuse to make dispute orders that are  
oppressive or would lack any utility. In Education Department v NSWTF [2006],  
Deputy President Harrison declined to make dispute orders because he was not satisfied  
that there existed in schools, a capacity to produce certain school reports, or that it was  
reasonable that they be produced. The Commission found that a dispute order ordering  
a person to cease or refrain from taking industrial action in those circumstances had an  
“unacceptable potential to create harsh, onerous and unreasonable working conditions”:  
at 339 [63]. The Commission also stated that it is “reluctant to make orders that cannot  
be complied with”: at 339 [64].  
53. By virtue of ss 130(1)(a), 138(1)(a)-(b), 139(3)(e) and 139(4) of the Act, dispute orders  
can be made against an industrial organisation: PSA v Industrial Relations Secretary  
[2018] at 788 [117] (Bathurst CJ with whom Gleeson and Simpson JJA agreed). In that  
decision, Bathurst CJ discussed the meaning of the words “cease or refrain from taking  
industrial action” in s 137(1)(a) at 788 [115] as follows:  
That construction certainly has textual support. First, the dispute orders which the  
Commission may make under s 137(1)(a) are orders to “cease or refrain from  
taking industrial action”. In common parlance, “cease” means “stop”, whilst  
“refrain” means “not take”. Read with the definition of “industrial action”, the  
section would then mean that the Commission could make an order to “stop or not  
take strike action”, including the activities referred to in pars (a), (b) and (c) of the  
definition of “industrial action”.  
54. Schmidt J has expressed doubt, albeit not a concluded view, that dispute orders could be  
made on an interlocutory or interim basis: Notification under section 130 by the NSW  
Department of Community Services of a dispute with the Public Service Association  
and Professional Officers' Association Amalgamated Union of New South Wales; Re  
Workbans [2000] NSWIRComm 66 at [11]. That case concerned an application for such  
orders that arose following the adjournment of arbitration proceedings for the gathering  
of evidence and preparation. It is not necessary to express a concluded view on this issue  
in this case.  
55. In Industrial Relations Secretary v Public Service Association and Professional Officers  
Association Amalgamated Union of New South Wales (2017) 93 NSWLR 723; [2017]  
NSWSC 71 (“Industrial Relations Secretary v PSA [2017]”), Fagan J held that this Court  
would not find a contravention of an order in proceedings under s 139 of the Act without  
being satisfied that “the relevant order was made in terms of sufficient clarity, without  
ambiguity, so that allegedly infringing conduct can clearly be seen to be in breach of  
something that the [defendant] was directed not to do”: at 728 [29].  
56. In Transport Workers' Union of Australia, New South Wales Branch v Chubb Security  
Services Ltd [2001] NSWIRComm 248, the Full Bench (Wright J, President, Walton J,  
Vice-President, and Commissioner Patterson) held at [11] that “[i]t is essential that  
orders made under s 137 be in clear terms and in terms readily understood and capable  
of being obeyed by those against whom they are made”. In that case, the union, its  
officers, employees, members and agents were ordered to refrain from imposing any  
bans, limitations or restrictions on the performance of work at or in relation to the  
premises of Chubb Security Services Ltd at nominated premises. A second order was in  
the following terms:  
The TWU and its officers, employees and agents, shall take all necessary steps to  
ensure the continuation of work by their members employed at or in relation to  
the premises of Chubb in accordance with their contracts of employment and the  
lawful instructions of Chubb.  
57. The Full Bench, on an appeal brought by the union, held at [10]:  
We do not consider there was power to make order no 2, nor could it be justified as  
being an order of a kind specified in the grant of power provided by [s 137(1)(a) of  
the Act]. Further, the order, when construed, could not be said to be an order  
ancillary to or in aid of order 1, particularly having regard to the fact that order 1  
was an order to refrain from taking industrial action. Accordingly, there was no  
power to make the order and it should be set aside.  
58. The prosecutor correctly submitted that an appeal can lie to the Full Bench against a  
decision by a single Commissioner to make (or not make) dispute orders but such an  
appeal requires leave under s 188 of the Act unless made by the Minister: see, eg,  
BlueScope v AWU [2006] NSWIRComm 149 (Wright J, President, Walton J, Vice-  
President, and Marks J); National Union of Workers, New South Wales Branch and Ors  
v TNT Australia Pty Ltd and Franklins Limited (unreported, Full Bench of the  
Industrial Relations Commission of New South Wales, IRC 4188 of 1997, 3 September  
1997) (Fisher P, Bauer and Hungerford JJ and Commissioner Buckley) (“NUW v TNT”);  
Secretary of the Department of Education v Australian Education Union of New South  
Wales Teachers Federation Branch [2022] NSWIRComm 1049 at [6] (Chief  
Commissioner Constant, Commissioners Sloan and Webster) (“Education Secretary v  
NSWTF [2022] NSWIRComm 1049”).  
59. In granting leave against a decision to make dispute orders, I agree with the observations  
of Fisher P, Bauer and Hungerford JJ and Commissioner Buckley in NUW v TNT that  
there is a further, but not dispositive, consideration as follows:  
We are satisfied that the public interest, often referred to as the silent party,  
requires industrial disputes to be so dealt with in a timely and orderly way free  
from the use of industrial force, whether it be by employer or employee. In our  
view, it is of critical importance to have that approach in mind in determining  
whether leave to appeal should be granted to set aside a dispute order made by the  
Commission and specifically directed at the cessation of industrial action to permit  
parties to settle their differences by conciliation, or, if necessary, for the  
Commission to arbitrate.  
Alleged Contraventions of Dispute Orders  
60. If there is an alleged contravention of a dispute order, s 139 of the Act provides that the  
matter can be dealt with by this Court. Section 139 provides as follows:  
139 Contravention of dispute order  
(1) The Supreme Court, on application, must deal expeditiously with an alleged  
contravention of a dispute order. The application may be made by the person who  
applied for the order or any other person who was authorised to apply for the  
order.  
(2) Before dealing with an alleged contravention of the order, the Supreme Court is  
required to summon the person alleged to have contravened the order to show  
cause why the Supreme Court should not take action for the contravention.  
(3) The Supreme Court may, after hearing any person who answered the summons  
to show cause and considering any other relevant matter, do any one or more of  
the following—  
(a) dismiss the matter if it finds that the dispute order was not  
contravened or if it finds that the circumstances were such that the  
Supreme Court should take no action on the contravention,  
(b) cancel the approval of an enterprise agreement,  
(c) suspend or modify for any period all or any of the entitlements  
under an industrial instrument,  
(d) cancel the registration of an industrial organisation or take any  
other action authorised by Division 2 of Part 3 of Chapter 5,  
(e) impose a penalty on an industrial organisation or an employer as  
provided by subsection (4),  
(f) make any other determination that the Supreme Court considers  
would help in resolving the industrial dispute.  
(4) The maximum penalty that may be imposed on an industrial organisation or  
employer is—  
(a) except as provided by paragraph (b)—a penalty not exceeding in  
total $10,000 for the first day the contravention occurs and an  
additional $5,000 for each subsequent day on which the contravention  
continues, or  
(b) if a penalty has previously been imposed on the industrial  
organisation or employer for a contravention of an earlier dispute  
order