Penalties imposed on two former Secretaries of the TWU WA Branch
The Fair Work Commission (Commission) welcomes civil penalties imposed today by the Federal Court of Australia totalling $65,900 on two former Secretaries of the Western Australia Branch of the Transport Workers’ Union of Australia (TWU) for contraventions of the Fair Work (Registered Organisations) Act 2009 (the Act) – see General Manager of the Fair Work Commission v McGiveron  FCA 405 (21 April 2017).
The Commission commenced civil penalty proceedings against former Branch Secretaries, Mr James McGiveron and Mr Richard Burton, for breaches of their duties as elected TWU officers.
Justice Barker found that both Mr McGiveron and Mr Burton breached their duties by executing contracts for the purchase of two luxury Ford F350 utility vehicles valued at $150,000 each. This was done without the authority of, or proper disclosure to, the Branch Committee of Management.
Mr McGiveron breached his duties through his involvement in the adoption of a redundancy policy from which he later personally benefited. Mr Burton separately breached his duties when he subsequently made an unauthorised redundancy payment under that policy to Mr McGiveron of more than $370,000.
The Court also found that Mr Burton personally benefitted from incurring unauthorised expenses which were charged to the TWU, including vehicle hire, a meal at the Rockpool Bar & Grill and a catered box at the West Australian Football Grand Final.
The Court imposed penalties totalling $16,000 on Mr McGiveron for three contraventions of ss. 285 or 286 of the Act, $5,000 of which will be permanently stayed if the balance is paid within 74 days of today’s orders. Mr Burton was ordered to pay penalties totalling $49,900 for 15 contraventions of ss. 285, 286 or 287 of the Act, with $22,600 of that amount being permanently stayed if he pays the balance within 74 days.
This outcome follows a referral from the Trade Union Royal Commission which resulted in an independent investigation being conducted by the Commission between April and July 2016. The Commission’s General Manager commenced Federal Court proceedings on 8 August 2016.
The Commission’s acting General Manager, Ms Ailsa Carruthers, said that ‘The significant penalties handed down today against two former senior officials of the TWU provide a powerful reminder that officials of registered organisations who fail to meet high standards will be held to account’. Ms Carruthers noted the following comment by Justice Barker [para 121]:
‘Senior union officials, in particular, who have the power to control or influence outcomes, including outcomes that might benefit them or others close to them … must understand that they will feel the full weight of the law if they deliberately contravene the law governing their conduct as union officials. It is trite to say that no person is above the law and … union officials such as Mr McGiveron are subject to important duties, duties which are very much the same as those that apply to officers and directors of corporations under the general corporations law of Australia.’
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