Civil onus applies to contravention of dispute orders under IR Act 1996 (NSW)

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Civil onus applies to contravention of dispute orders under IR Act 1996 (NSW)

An Industrial Relations Commission NSW in Court Session has held that a civil onus of proof (balance of probabilities) applied when the issue of whether a contravention of a dispute order had occurred under sec 139 of the Industrial Relations Act 1996 (NSW).

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An Industrial Relations Commission NSW in Court Session has held that a civil onus of proof (balance of probabilities) applied when the issue of whether a contravention of a dispute order had occurred under sec 139 of the Industrial Relations Act 1996 (NSW).
 
The union (AWU) argued that a criminal onus beyond reasonable doubt applied and the employer (BHP) argued for a civil onus.
 
Legislation
 
Section 139 refers to contravention of dispute orders and provides for penalties to be recovered in the same way as penalties imposed by the Commission for offences against the Act.
 
Background
 
BHP Steel Ltd argued that there had been a contravention of dispute orders made by Commissioner Connor on 5 August 2002 by the AWU (NSW) and applied for the issue of a summons to show cause against the union pursuant to the provisions of s 139.
 
BHP indicated that, at the hearing of the application, it would seek, pursuant to s 139(3) of the Act, the imposition of a penalty on the AWU and such other orders against the respondent as the Commission in Court Session considered appropriate.
 
Submissions
 
It was submitted on behalf of BHP that the common law had developed a very sound rationale for assessing adequate proof in civil matters involving serious allegations, namely, the test in Briginshaw v Briginshaw (1938) 60 CLR 336. The test was one universally applied. There was no reason in principle or legal analysis to import into admittedly civil proceedings, criminal procedures and the criminal onus of proof. The present case did not fall within the principle established by the High Court in Witham's case, that no distinction was to be made between proceedings for criminal contempt and proceedings for civil contempt.
 
The AWU supported the decision of Vice President Cahill in the Coles case and Justice Marks in the Department of Education case and their conclusion that the appropriate standard of proof was the criminal standard in proceedings under s 139 of the Act and its equivalent under the 1991 Act. Further, it was submitted that considerations of judicial comity would lead the court to follow the conclusions reached in those decisions unless positively persuaded that they were wrong.
 
Decision
 
Justice Haylen found that a civil onus applied:
'In my view, s 139(5):
 
['(5) Any such penalty may be recovered in the same way as a penalty imposed by the Commission for an offence against this Act.'] ... is effectively a deeming provision for the purposes of recovering a penalty imposed under s 139. In focusing on the recovery process, it treats proceedings under s 139 as if they were the same as an offence, thereby immediately recognising that s 139 is not an offence and is not to be treated as a criminal proceeding...
 
'The imposition of the monetary penalty is not part of the same order imposing imprisonment in default of payment of the amount imposed. The recovery proceedings contemplated by s 139(5), which ultimately pick up the provisions of the Fines Act, involves several quite separate and distinct steps....
 
'The orders may only be made when the Commission is dealing with an industrial dispute in arbitration proceedings. The Commission is empowered by s 139(3)(f) to make any other determination that the Commission considers would help in resolving the industrial dispute.
 
'Those provisions, placing s 139 in an arbitral/dispute resolution context, and the quite separate provisions of the Act dealing with criminal proceedings for offences against the Act, in my view, demonstrates the legislature's intention that proceedings under s 139 are civil in nature....
 
'Counsel for the AWU emphasised the severity of the penalties, drawing attention not only to the severity of monetary penalties but also the severity of sequestration of assets of an organisation and or deregistration of an organisation.
 
'It cannot be doubted that some of the penalties available under s 139 for breach of a dispute order can be severe in their impact on an individual or an organisation. It is not uncommon in modern legislation to find quite heavy penalties available in civil proceedings.
 
'... It is not to be supposed that monetary penalties, removal of benefits under an enterprise agreement or industrial instrument or the suspension or de-registration of an organisation would occur on the merest balance of probabilities. The civil onus will still require a proper and firm basis to be established before a result is reached which imposes a significant burden or detriment upon a particular party.'
The matter was listed for mention and directions as necessary on 30 May 2003.
 
See: BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151 - Haylen J - 15 May 2003.
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