Consideration
88 In respect of the McGiveron F350 contraventions, I consider that the General Manager, supported by the TWU, reasonably submits that the penalties to be imposed for contravention of s 286(1) and s 285(1) warrant penalties in the mid to high range. I also agree that it is appropriate in this case, in relation to the contraventions that constitute a single course of conduct, to adopt an approach taken in some earlier cases such as Thompson (No 4) and, effectively, to impose penalties that are concurrent and have the effect that, if the "head penalty" is paid, only one pecuniary penalty will be incurred. In this case, the McGiveron F350 contraventions should properly be treated as involving a single course of conduct and the s 286(1) contravention penalty should be considered to attract the head penalty because of its more serious nature.
89 In my view, the admissions and the related evidence show that Mr McGiveron, effectively aided by Mr Burton, in the light of Mr McGiveron's decision to resign his position as WA Branch Secretary of the TWU, undertook plans to acquire the two F350s with the awareness that, should his later anticipated employment position with the TWU become redundant, in all likelihood he would be able to keep one of the F350 vehicles as his own under the TWU's retirement policy.
90 While it is clear from the evidence given in the proceeding and the admissions made by the respondents, that the TWU had a practice of acquiring robust motor vehicles for use by organisers in their employment in some more remote parts of Western Australia, the evidence also discloses that most often the types of vehicles purchased had a value of about $50,000, not a value of more than $150,000, with accessories, paid for the more upmarket vehicles in question here.
91 The fact that the F350s, which after purchase were fitted out with more than $20,000 worth of accessories, were acquired, and the WA BCOM members were not aware of the acquisition, goes to show how serious the breach of the good faith obligation imposed by s 286(1) of the RO Act was.
92 In the circumstances, I also consider that the admissions made by Mr McGiveron support the General Manager's submissions that not only did he fail to discharge his duty as Branch Secretary to act in good faith, but also that he did not, in so acting, act for a proper purpose.
93 It is artificial, in my assessment, for Mr McGiveron to argue that his admission only related to allegations of not acting in good faith against him, where it is plain that by his admission he accepted that he did not act in good faith and for a proper purpose, or alternatively, that he did not act in good faith or for a proper purpose. Either way the two limbs of s 286 were contravened.
94 That same conduct involved a contravention of Mr McGiveron's obligation as an officer of the WA Branch, under s 285, to exercise his or her powers and discharge his or her duties with a degree of care or diligence that a reasonable person would exercise if he or she were an officer of an organisation or a branch in the organisation's circumstances and occupied the office held by, and held the same responsibilities within the organisation or a branch as, the officer. As I have noted, however, the contraventions of the two provisions should be seen as constituting one course of conduct and effectively there should only be one penalty imposed, which is why the concurrent penalty imposition approach accepted by the relevant parties is adopted by me on this occasion.
95 Because the maximum penalty that can be imposed under the RO Act in respect of Mr McGiveron's contravening conduct is $6,600, no greater penalty than that can be imposed.
96 The actions of Mr McGiveron bespeak a high degree of entitlement to act in the way that he did.
97 It is plain that he knew or ought to have known that committing the TWU to the expenditure of WA Branch funds in the vicinity of $274,000 on the two motor vehicles he had agreed to purchase was a considerable matter for the WA Branch and that he did not have authority to do so without WA BCOM approval. That he was purchasing those types of vehicles at that expense was not something disclosed to the members of the WA BCOM or the union membership more generally. It is something that was discovered much later in the course of events by later officials of the TWU.
98 No doubt many members of the TWU would have been aggrieved, to say the least, to discover the largesse of which Mr McGiveron was the beneficiary following his subsequent redundancy.
99 It is generally accepted that it is no excuse for officials in the position of Mr McGiveron to point to past practices as justifying the contraventions they have admitted. In this case, however, the present TWU officials do not accept that there is any relevant conduct by way of precedent to justify the purchase by Mr McGiveron of the two vehicles of the type that he purchased, or that he should have acquired the vehicles without the authority of the WA BCOM.
100 For these reasons, and subject to what I say below, I accept the submission made by the General Manager, supported by the TWU, that the contravention of s 286(1) of the RO Act warrants the imposition of a penalty in the high range, close to the maximum of $6,600.
101 Similarly, and again subject to what I say below, the contravention of s 285(1) of the RO Act warrants the imposition of a penalty in the mid to high range, somewhere between $4,000 and $6,600. It is of slightly less gravity, in all the circumstances, than the contravention of s 286(1).
102 But before finally assessing the penalty, it is appropriate to regard the second redundancy policy contravention and also to consider all of the other factors mentioned above that are relevant to the penalty assessment process, as well as applying the totality principle.
103 As to the McGiveron redundancy policy contravention, I consider that, on its face, it warrants the imposition of a penalty in the mid to high range, somewhere between $4,000 and $6,600, as submitted by the General Manager and supported by the TWU.
104 Having regard to the reasons I have given in respect of the F350 contraventions, Mr McGiveron was, or must have been, plainly aware that if he were to retire as Branch Secretary and then occupy a non-elected employee position with the TWU, which position then became redundant, the WA Branch severance policy would apply to his advantage.
105 At the 18 July 2012 meeting of the WA Branch, he indicated his intention to resign in the future as Branch Secretary of the WA Branch. At that meeting, the WA BCOM also resolved to endorse a new redundancy policy for all TWU employees employed at that time at the WA Branch. Mr McGiveron caused that new policy to be drafted and was involved in the move to have it considered by the WA BCOM at that meeting. Indeed, he recommended that it be adopted.
106 There is no doubt that this gave rise to a potential conflict between his interests and those of the TWU, because if he were to become an employee, having resigned his position as Branch Secretary, and then were to find his position declared redundant, he would benefit under the new policy. The evidence shows that the most salient feature of the new policy was that a person made redundant would receive an additional week's severance pay for each year served as an employee of the TWU, compared with the old 2011 redundancy policy. In Mr McGiveron's case, if soon made redundant, it would mean, as at the time he actually was made redundant, that he would receive an extra week's severance payout for each of about 27 years that he had served the TWU. That is to say, he would receive about an additional six months' salary if he received a redundancy payout under the new policy compared with the old one.
107 I do not accept the argument put on behalf of Mr McGiveron that this consequence must have been open for all members of the WA BCOM to see when they voted on the recommended new redundancy policy and so, for that reason, the gravity of Mr McGiveron's failure to point out these consequences and absent himself from the meeting at which the recommended redundancy policy was voted upon, are less serious than they might otherwise have been. The simple fact is Mr McGiveron was the long-time Branch Secretary, he was involved in the formulation of the new redundancy policy and he indeed recommended it to the WA BCOM. His position was one of some considerable importance and influence. I do not consider that the analysis provided on his behalf lessens the seriousness of the contravention which he has admitted; if anything, it accentuates it.
108 I am also not persuaded that, by his conduct, he is not guilty of both limbs of s 286(1), that is to say, failing to act in good faith and for an improper purpose.
109 Nonetheless, I accept the submission made by the General Manager that the contravention in this case warrants the imposition of a penalty in the mid to high range between $4,000 and $6,600, something a little less than the penalty that the McGiveron F350 contraventions should attract.
110 As to the circumstances in which the various contraventions occurred, one of the other relevant factors I should take into account in assessing penalty, I accept the observations made by the General Manager that Mr McGiveron had access to and control over substantial funds which he was entrusted to control and maintain as Branch Secretary. The F350 contraventions involved the expenditure and commitment of funds of the TWU.
111 While Mr McGiveron submits in respect of the McGiveron redundancy policy contravention that he did ultimately receive some benefit, I accept that it was not in the total amount of the redundancy payment he received, but was only to be equated to the additional severance payment that he would receive under the relevant policy compared with the earlier 2011 one.
112 I do not, however, place a lot of weight, although I do place some weight, on the fact that a number of steps had to be taken in implementation of the new redundancy policy before Mr McGiveron was paid out under it. They included the step of the new Branch Secretary, Mr Burton, declaring his position redundant.
113 But in circumstances where any reasonable view of the events leads to the conclusion that the new redundancy policy was anticipated to be one that, in all likelihood, would be to the benefit of employees, including Mr McGiveron, I do not place much store on the possibility that there was any reasonable likelihood, when Mr McGiveron moved for the adoption of the redundancy policy and breached his obligations in doing so, that the benefits he ultimately received were not likely to become reality.
114 All of that said, so far as previous conduct is concerned, there is no previous conduct by Mr McGiveron that bears on the question of penalty and it is plain he has been an officer of the TWU for a very long period.
115 I have already noted the breaches which arise from a single course of conduct.
116 So far as the size of the enterprise is concerned, it is plain the position Mr McGiveron held gave him control over substantial revenue, as well as assets valued in excess of $5 million on behalf of the TWU.
117 The contraventions also occurred in the role Mr McGiveron performed as WA Branch Secretary of the TWU. He was the senior full time officer. He was possessed of and charged with all appropriate powers and functions under the Rules of the Union, including keeping the documents, books and accounts, being the custodian of moveable property and being in charge of the management of the Branch office. He held a significant position of trust in, and was the embodiment of the "senior management" of, the WA Branch of the TWU. That he held such a significant position is relevant to the question of penalty and the deterrent effect that it should have.
118 While there is no particular evidence of "contrition", in the sense that Mr McGiveron has not made some heartfelt apology for his conduct, I accept arrangements have been made concerning the return of "his" F350 vehicle and that there is no particular case of "loss" by the TWU suggested on behalf of the General Manager or the TWU.
119 In more general terms, I accept the submissions made on behalf of Mr McGiveron concerning his cooperation in the proceeding since September 2016 when a defence was filed, mediation occurred and his liability was ultimately accepted for those contravention allegations maintained against him. I take that into account in finally setting the penalties, but I should say that in circumstances such as these, they militate only slightly by way of lessening the pecuniary penalty to be imposed, because to allow any substantial reduction in the pecuniary penalty on account of such factors would, in my view, run the risk of significantly reducing the deterrent value of the pecuniary penalty imposed. It should not be thought by persons in the same or a similar position to Mr McGiveron that "coming clean" after the event will always lead to some automatic reduction in the penalty that should be imposed. The contraventions were serious and the penalties must ultimately reflect this fact.
120 I accept, generally speaking, however, that the question of specific deterrence does not loom large in a case such as this. Nonetheless, Mr McGiveron should expect the imposition of a substantial pecuniary penalty for the contraventions he has admitted, given all the matters I have mentioned, especially the seriousness of the contraventions committed by him as Branch Secretary of the TWU in Western Australia.
121 As I have emphasised, general deterrence looms large in considering the appropriate penalty in this case. As I have intimated, the incurring of a penalty should not be seen as the cost of doing business. 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 personally in the running of union affairs and have the duty to act in good faith and for proper purposes, 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, in this case, the provisions of the RO Act make it plain that 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.
122 In all of these circumstances, I would impose the following pecuniary penalties:
(1) In respect of the McGiveron F350 contraventions:
(a) For the contravention of s 286(1) of the RO Act, I would impose a pecuniary penalty of $6,000.
(b) For the contravention of s 285(1) of the RO Act, I would impose a pecuniary penalty of $5,000.
(c) These penalties should be imposed concurrently, as set out in the accompanying orders, with the s 286(1) penalty being the head penalty.
(2) In respect of the McGiveron redundancy policy contravention of s 286(1) of the RO Act, I would impose a penalty of $5,000.
123 I take account of the totality principle at this point. I do not consider that, taking account of the nature of the contraventions in respect of both the McGiveron F350 contraventions and the McGiveron redundancy policy contravention, the total of the head penalties of $11,000 is either oppressive or crushing, or otherwise unjust.