Registered Organisations Commissioner v Australian Workers' Union

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: MORTIMER J
• Judgment Date: 12 November 2019
• Neutral Citation: [2019] FCA 1852
• Date: 12 November 2019

FEDERAL COURT OF AUSTRALIA

Registered Organisations Commissioner v Australian Workers’ Union [2019] FCA 1852

File number:	VID 583 of 2018
Judge:	MORTIMER J
Date of judgment:	12 November 2019
Catchwords:	INDUSTRIAL LAW – contraventions of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act) – where second respondent admitted contraventions of s 285(1) and s 286(1)(a) – assessment of penalties – consideration of application of s 306(3) of the FWRO Act – where maximum penalties increased over relevant period – need for general deterrence
Legislation:	Corporations Act 2001 (Cth) s 180 Evidence Act 1995 (Cth) s 191 Fair Work Act 2009 (Cth) s 557 Fair Work (Registered Organisations) Act 2009 (Cth) ss 5, 6, 9, 140, 141, 230, 283, 285, 286, 287, 306, 310, 329AA Fair Work (Registered Organisations) Amendment Act 2012 (Cth) Fair Work (Registered Organisations) Amendment Act 2016 (Cth) Workplace Relations Act 1996 (Cth) Explanatory Memorandum, Fair Work (Registered Organisations) Amendment Bill 2014 (Cth)
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Gava [2018] FCA 1480 Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2019] FCA 72 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003; 196 FCR 430 Australian Securities and Investments Commission v Soust (No 2) [2010] FCA 388; 78 ACSR 1 Australian Securities and Investments Commission v Vocation Limited (In Liquidation) (No 2) [2019] FCA 1783 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 Cousins v Merringtons Pty Ltd (No 2) [2008] VSC 340 Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 General Manager of the Fair Work Commission v McGiveron [2017] FCA 405 General Manager of the Fair Work Commission v Thomson (No 3) [2015] FCA 1001 General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433 Health Services Union v Jackson (No 4) [2015] FCA 865; 108 ACSR 156 New Image Photographics Pty Ltd v Fair Work Ombudsman [2013] FCA 1385 Registered Organisations Commissioner v Australian Nursing and Midwifery Federation (No 2) [2018] FCA 2004 Shafron v Australian Securities and Investments Commission [2012] HCA 18; 247 CLR 465 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203; 363 ALR 464 Weininger v The Queen [2003] HCA 14; 212 CLR 629
Date of hearing:	24 September 2019
Date of last submissions:	7 October 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	244
Counsel for the Applicant:	Mr C B O’Grady QC with Mr P G Liondas
Solicitor for the Applicant:	Ashurst Australia
Counsel for the Second Respondent:	Ms R M Doyle SC with Mr T C Borgeest
Solicitor for the Second Respondent:	Gordon Legal

ORDERS

		VID 583 of 2018
BETWEEN:	THE REGISTERED ORGANISATIONS COMMISSIONER Applicant
AND:	THE AUSTRALIAN WORKERS’ UNION First Respondent ; CESAR MELHEM Second Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	12 november 2019

THE COURT DECLARES THAT:

1. In these declarations, the term “predecessor legislation” refers to the provisions governing registered organisations formerly contained in Sch 1 of the Workplace Relations Act 1996 (Cth).

2. The second respondent, as Branch Secretary of the Victorian Branch (AWU Vic) of The Australian Workers’ Union (AWU), and by his directing, causing and permitting that:

1. the names of 164 employees of Cleanevent Australia Pty Ltd (Cleanevent) contained on lists provided by Cleanevent in May 2011 and April 2012 (Cleanevent employees) be entered on the register of members of the AWU (Register of Members) in circumstances where the Cleanevent employees were not and did not become members of the AWU pursuant to the AWU’s rules; and

2. payments received from Cleanevent in December 2010, June 2012 and March 2013 be applied on account of membership contributions in respect of the Cleanevent employees in circumstances where the Cleanevent employees were not members of the AWU pursuant to the AWU’s rules,

failed to exercise his powers and discharge his duties with the degree of care and diligence that a reasonable person would exercise if he or she:

(i) were an officer of an organisation or a branch in the AWU’s circumstances; and

(ii) occupied the office of Branch Secretary of AWU Vic, and had the same responsibilities within AWU Vic as the second respondent,

and, by that failure, contravened s 285(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act).

3. The second respondent, as Branch Secretary of AWU Vic, and by his directing, causing and permitting that:

(a) the names of the Cleanevent employees be entered on the Register of Members in circumstances where the Cleanevent employees were not and did not become members of the AWU pursuant to the AWU’s rules; and

(b) payments received from Cleanevent in December 2010, June 2012 and March 2013 be applied on account of membership contributions in respect of the Cleanevent employees in circumstances where the Cleanevent employees were not members of the AWU pursuant to the AWU’s rules,

in circumstances where the second respondent did not believe his conduct to be in the best interests of the AWU, failed to exercise his powers and discharge his duties as Branch Secretary of AWU Vic in good faith in what he believed to be the best interests of the AWU and, by that failure, contravened s 286(1)(a) of the FWRO Act.

4. The second respondent, as Branch Secretary of AWU Vic, and by his directing, causing and permitting that:

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