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UPDATED WITH EDITORIAL FROM ME - Counsel Assisting's AWU submissions to the TURC

Monday, 09 November 2015

2015 Case Study Submissions—Australian Workers’ Union

The Royal Commission held hearings into the Australian Workers' Union (AWU) in 2015. These hearings dealt with matters associated with the AWU. The full transcript of the hearings, witness lists, and documents presented to the Royal Commission are available on the AWU Hearings Page.

You can access each case study through the relevant link below:

Introduction

Cleanevent Australia Pty Ltd

Thiess John Holland

Paid Education Leave – ACI / O-I and Chiquita Mushrooms Case Studies

Unibuilt

Winslow Constructors

Miscellaneous Memberships Issues

Downer EDI

ENDS

 

222. Section 84 of the Crimes Act 1958 (Vic) recognises that a body corporate capable of committing an offence under s 83. That section relevantly provides:

Liability of company officers for certain offences by company

(1) Where an offence committed by a body corporate under section 81, 82 or 83 is proved to have been committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence, and shall be liable to be proceeded against and punished accordingly.

Stoljar on Paul Howes Cleanevent Case Study - 
 
First, the National Secretary at the time was Paul Howes. His evidence was to the effect that he had signed the MOU but had no recollection of doing so. No documents have been produced to show what precisely was before Mr Howes when he signed the MOU.  However his evidence in respect of industrial agreements negotiated by branches but signed off at national level was that: ‘I required a report to accompany industrial agreements brought to me for signing. As National Secretary, it was not my role to personally analyse the terms of industrial agreements to check their adequacy. I was dependent on the report to highlight any relevant issues.428 That begs the question of whether that is an appropriate approach in circumstances in which the National Secretary assumes the role of binding the Union and its members to an EBA with National coverage. It appears to be an abrogation of the responsibility that a National Secretary should assume when enterprise agreements are put forward for his or her approval. By failing to properly scrutinise the enterprise agreement before signing, Paul Howes missed what was apparent to Scott McDine in 2015,429 and what he caused to be submitted to the Fair Work Commission at that time, namely:430

This old agreement, the only purpose that it is currently serving is to deny employees, particularly casual employees, access to penalty rates.

It follows from this evidence, and for that matter from the fact that he held the role of National Secretary and personally signed off on the MOU, that Paul Howes should take responsibility for the failures in proper process discussed below. 
 
 
Stoljar on Bill Shorten
 
The $100 grand per annum was his idea.   Cesar implemented it with Thiess.   Shorten was the AWU State secretary in Victoria and overlapping was in the Paul Howes role as National Secretary.   Shorten saw the money coming in.   Shorten was the big boss.  But he did nothing wrong, it was all Cesar.
 
Shorten should take no responsibility, presumably because he is now the alternative Prime Minister and too troublesome to be held to account.
 
Jo Bjelke prayed for and received logic like that in his jury trial.
 
Last word from Jeremy Stoljar SC:

221. The conduct and position of Mr Melhem, being at the relevant time the Assistant Branch Secretary, and then the Branch Secretary, and the person who provided the directions to issue the falsified invoices, is a sufficient basis on which to find that for the purposes of soliciting the payments, he was the ‘directing mind and will’ of that organisation.

The AWU on any view adopted Mr Melhem’s conduct by receiving the payments in question and dealing with them for its own benefit. That is sufficient to make the AWU potentially guilty of an offence under s 83 of the Crimes Act 1958 (Vic).

PS - But not Bill Shorten. 

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