Non-compliance with civil penalty provisions
24 The first of these issues emerged because the orders in respect to the Federal Branch (as it then was) were made on 21 June 2012. Thereafter, no financial returns were filed, nor could they be filed, for the financial year ending on 30 June 2012. The concern was whether this failure or failures were contrary to the requirements of Division 5 of Part 3 of Chapter 8 of the Registered Organisations Act.
25 A further difficulty was that the Federal Union (the Health Services Union) may itself assume liability for those contraventions. Provision is made, however, for relief from liability for contraventions of civil penalty provisions in s 315 of the Registered Organisations Act. That section provides as follows:
Relief from liability for contravention of civil penalty provision
(1) In this section:
eligible proceedings:
(a) means proceedings for a contravention of a civil penalty provision; and
(b) does not include proceedings for an offence.
(2) If:
(a) eligible proceedings are brought against a person or organisation; and
(b) in the proceedings it appears to the Federal Court that the person or organisation has, or may have, contravened a civil penalty provision but that:
(i) the person or organisation has acted honestly; and
(ii) having regard to all the circumstances of the case, the person or organisation ought fairly to be excused for the contravention;
the Court may relieve the person or organisation either wholly or partly from a liability to which the person or organisation would otherwise be subject, or that might otherwise be imposed on the person or organisation, because of the contravention.
(3) If a person or organisation thinks that eligible proceedings will or may be begun against them, they may apply to the Federal Court for relief.
(4) On an application under subsection (3), the Court may grant relief under subsection (2) as if the eligible proceedings had been begun in the Court.
26 Whatever proceedings may or may not be brought against the Federal Union, on one view, was something extraneous to the administration and the demerger of the former Federal Branch. On another view, if a proceeding were to be commenced against the Federal Union, and if an application were to be made to the Court pursuant to s 315(2), it was desirable for any such application to be made sooner rather than later. And to be resolved by the Court as presently constituted. But there was no imperative for any such application to be made and resolved prior to the making of orders bringing the administration to an end.
27 Yesterday, on 27 November 2012, an Originating Application was filed by the Federal Union seeking orders pursuant to s 315 of the Registered Organisations Act.
28 After the hearing on 22 November 2012 a meeting was held with a delegate of the General Manager of Fair Work Australia. The delegate, Ms Carruthers, was unable to give a commitment not to take action as against the Federal Union. That attitude, perhaps, was understandable. Documents and records of potential relevance to the decision were not available. They had been seized by the New South Wales police pursuant to search warrants executed at the State Union and New South Wales Branch premises in Pitt Street, Sydney. A request made of the police to access the seized documents was rejected. A request to be provided with a list of the documents seized was disturbingly met with the response that the police intended to index all of the documents but lacked the resources to do so "at this stage".
29 The lack of the commitment on the part of Fair Work Australia to not institute a proceeding against the Federal Union was apparently considered by the Federal Union to be sufficient to satisfy the requirements of s 315(3) of the Registered Organisations Act.
30 The very difficulty confronting Ms Carruthers is much the same as the difficulty now confronting this Court. The documents that may have been seized are of potential relevance to both any decision to be made by Fair Work Australia and any decision to be made by this Court as to whether it should grant "relief" pursuant to s 315(3). The seized documents may potentially be relevant as to whether the Federal Union should be relieved "either wholly or partly from a liability" and relevant to the extent of any "relief" that may be granted.
31 A further difficulty was raised during the course of the hearing this morning. Some of the contraventions against which "relief" was being sought had not as yet occurred. A very legitimate question was raised as to whether the Court had power to grant "relief" in such circumstances.
32 Although it would have been desirable (if possible) to have resolved that further Originating Application today, and to have thereby brought hopefully all issues outstanding as a result of the orders made on 21 June 2012 to an end, it is regrettably not possible to do so. The resolution of the Originating Application must thus await another day.