Findings as to the events from July 2010 to July 2013.
131 In my view, the regulator at all material times both before and after July 2010, was doing its best to cajole Mr Olson to meet the statutory deadlines. It may be said that it took a "line of least resistance", at least initially, in the hope that the statutory returns would be filed sooner rather than later. By July 2010, Mr Olson still had not caused the returns to be filed. At that point Mr Quinn left the organisation. Mr Olson needed a competent person or competent people to take on the task. They could have been employed internally within the organisation, or sourced from outside it, as consultants.
132 What happened is that Mr Quinn was not replaced by someone with skills like his. Rather, Ms Papantoniou was brought in to perform some of those exercises. Despite Mr Olson's assertions to the contrary, she did not have the professional qualifications or the professional experience needed to do the job that Mr Quinn had previously performed.
133 The suggestion that someone who had taken one accounting subject in a tertiary course, but otherwise had worked in an entirely different customer related area before being asked to take on bookkeeping duties, should be treated as appropriately skilled, to replace Mr Quinn - as Mr Olson effectively contends in the case of Ms Papantoniou - beggars belief and must be discounted.
134 As the evidence to be referred to later indicates, when Mr Allanson was soon enough engaged as an external consultant to help solve the Attaché and related problems, it was a lack of training and a lack of protocols within the organisation that were identified by him as reasons why Ms Papantoniou effectively pressed the wrong button that caused the batch problem within the Attaché system, that needed to be resolved in order to help get the statutory returns in order and lodged.
135 The submission that Ms Papantoniou and Ms Terkildsen had received all the training they needed, effectively to replace Mr Quinn, is without foundation.
136 In my view, it does not involve any hindsight to see that, as of July 2010, Mr Olson failed to realise, as a reasonable branch secretary would have, that the time for serious action had arrived to get the WA Branch's reporting issues in order, and to allocate proper resources to get the required statutory returns completed without further delay. I accept the submission made on behalf of the Commissioner that the time had arrived in July 2010 for Mr Olson to realise that a "business as usual" approach to dealing with the financial matters leading to the completion of financial statements and the filing of statutory returns, which characterises the period prior to July 2010, was not good enough. There were three years' returns outstanding as of that time. Mr Quinn had left the organisation. The people Mr Olson assigned within the WA Branch to undertake the tasks that Mr Quinn was previously responsible for, were not appropriately skilled or trained to complete the tasks he had undertaken. A more substantive and realistic response to the challenges then facing the WA Branch was called for. For whatever reason, that was not provided.
137 While Mr Olson was undoubtedly busy attending to industrial matters, a reasonable branch secretary exercising his responsibilities would have done more to allocate resources to get the statutory returns completed and made this a first order priority; which Mr Olson did not do.
138 I do not doubt that Mr Olson believed he would be given more time by the regulator to get the WA Branch's house in order. But, in my view, that was but his subjective belief and not one that a reasonable branch secretary, in all the circumstances of the WA Branch, was entitled to adopt. The patience of the regulator plainly had been tested. The time for action had arrived and while Mr Olson does not seem to have recognised that, a reasonable branch secretary in the circumstances would have.
139 I will deal below with Mr Olson's "defences" of reliance on others and his exercising of "business judgement". I do not find them made out.
140 Then in October 2010, Mr Olson was alerted to the Attaché batching problem. Mr Olson's response is that discussions about the Attaché software problem did occur in October 2010 and a "plan" was put in place to fix the problems, but it could not be implemented immediately.
141 He says that it is incorrect to say that a reasonable branch secretary in the WA Branch's circumstances at that time would have immediately engaged Mr Allanson or one or more additional persons to work on fixing the Attaché problem so the 2010 report could lodged on time.
142 In my view, having regard to the overall WA Branch, a more significant response to the situation was required to the reporting challenge than proceeded and Mr Olson gave to it. The Attaché issue, on top of the loss of Mr Quinn, required a well-developed strategy, but it received but a tepid one from Mr Olson. He appears to have considered that the regulator would accord all the time he needed to eventually resolve the default in lodging returns.
143 In my view, objectively speaking, a reasonable branch secretary, in the circumstances of the WA Branch at that point, given the existing problems in meeting the statutory return lodgement requirements for the three previous reporting years, would have moved to deal with that issue as a first priority. There was no employee at that point with the knowledge and experience to give sensible advice and recommendations about the Attaché problem. Something should have been done much sooner than it was. Bringing in Mr Allanson to advise and help as of December 2010/early 2011, was too delayed a response.
144 In my view, the evidence shows that Mr Olson, as of February 2011, was adopting, as previously put, a "business as usual" approach. Questions from the auditor were being raised and responded to with anything but urgency.
145 Mr Allanson had been brought in in early 2011, for a period, to work on the Attaché issue, and to oversee the work of Ms Papantoniou and others.
146 In the circumstances I consider that Mr Olson was entitled, once Mr Allanson was engaged, to await the steps being undertaken by Mr Allanson to resolve the Attaché problem. A reasonable branch secretary would have so acted. I accept Mr Allanson's evidence as to the reasonableness of the options he then considered available to dealing with the Attaché and the batching problem.
147 At that very point, had Mr Allanson been able to resolve the Attaché issues, perhaps the then issues that had constrained the ability to lodge the statutory returns on time might have been significantly advanced. The fact that they were not resolved for some time does not mean that steps being taken, as of February 2011, were inadequate.
148 The trouble is, however, that the substantive problem with completing the statutory returns was merely put "on hold" at this point; and continued on following the expiration of Mr Allanson's primary engagement in early January to early March 2011.
149 As a result, by the period from March through July 2011, with Mr Allanson only engaged on an occasional basis, and Ms Papantoniou continuing to provide some assistance while continuing her bookkeeping tasks, the time had arrived, without doubt, for Mr Olson to retain additional personnel, either internally within the organisation, or from external sources (such as, or like a Mr Allanson), but he did not do so.
150 I do not discount at all the factors that led to the Attaché problem. But to accord to the Attaché batching problem the significance that Mr Olson seeks to attach to it, is to overstate that problem and how a reasonable branch secretary in the circumstances of the WA Branch, would have set about resolving that problem. The batching issue was capable of resolution, but it was not resolved for some two further years when another software system was obtained to replace Attaché.
151 The Commissioner's case is, and I accept, that rather than allow the situation to move along in the way that he managed it, it should have been more obvious than ever to Mr Olson that he needed to deploy additional resources as of July 2011 to ensure the 2009-10 general purpose financial report and the pending deadline in relation to the equivalent material for the 2010-11 financial year could be completed and prepared in a timely manner.
152 As of January 2012, Mr Olson contends resources had been increased and work was being done to correct the Attaché issues and to lodge accurate returns. He says that the full circumstances surrounding the Attaché problem and its significance and how it could have been fixed have been overlooked and misunderstood by the Commissioner.
153 In my view, however, as of January 2012, the failure of Mr Olson, the Branch Secretary, to ensure that adequate resources had been allocated for the timely preparation and lodgement of the various outstanding and impending statutory returns, remained current. He needed at this point urgently to deploy additional resources to overcome the identified problems that he had faced for some time.
154 To state as much is not to discount that there were difficulties with the Attaché system. But as I have stated above, Mr Olson seeks to lay the blame, effectively, at the feet of the Attaché system and, in effect, to contend that his duty, as Branch Secretary, to cause the required work to be done and the statutory returns to be lodged, was suspended while Mr Allanson - now working part-time - endeavoured to resolve it. I reject any such proposition.
155 The fact of the matter is that Mr Olson continued at this point to fail to direct sufficient resources to the problems facing the WA Branch in order to get those issues resolved as a first priority issue, given how long-standing the difficulties were, as a reasonable branch secretary in my judgement would have done.
156 As of April 2012, the auditors had been communicating with Mr Pfeiffer, at the regulator and, from Mr Olson's perspective, they were undertaking a timetable for lodgement of the returns. He says there was no sense of imminent prosecution or enforcement, and the Commissioner "continued to condone even more late reports". He says that Mr Pfeiffer was more concerned, as he was, with getting things up to date. He says everything was being done that could "possibly be done" to get the accounts and audits into order.
157 I do not accept Mr Olson's explanation for the continued delay in the proper resourcing of preparations for the 2010 and 2011 reports in April 2012.
158 At this point, the problems with resourcing and completing the required returns that I have found, continued.
159 Mr Olson's attempt to transfer responsibility for the delays to the auditors is unfounded. He continued to have the responsibility to cause them to be prepared, presented and lodged. His "defence" in this regard is an attempt to abdicate his personal responsibility, as Branch Secretary, to ensure the timely lodgement of the returns, to the auditors.
160 By this time, I consider that Mr Olson, as before, subjectively believed that he was being "allowed" by the regulator to complete the required returns according to his own timetable.
161 It was not an approach that a reasonable branch secretary, in the circumstances of the WA Branch, would have taken. Mr Olson misread the circumstances such that he believed there was no "urgency" and the regulator was not requiring more urgent action of him than he was providing.
162 The substantive justification for delay put forward by Mr Olson in relation to the preparation of the 2010-11 general purpose financial report, and the other statutory returns that were then due and outstanding, is that work was continuing in accordance with his "plan" to get the reports done as soon as possible and that he continued to rely on the assistance and expertise of Mr Allanson and the auditors to bring the accounts up to date. He says he was "never asked for additional resources".
163 Mr Olson also relies on continuing "condonation" by the regulator of the late reports for the financial years from 2006 through to 2011. As I have found above, there was no such condonation.
164 As to the "plan" to get the 2009-10 and 2010-11 reports done and the reliance upon Mr Allanson and the auditors, as I have pointed out above, these are but instances of Mr Olson abdicating his responsibility to Mr Allanson, in particular, and the auditors, to some extent, in more recent years.
165 While it was entirely expected that the auditors would complete their responsibilities as auditors, and that Mr Allanson within his remit as an external adviser would attend to financial duties, without supervision, it fell to Mr Olson as the Branch Secretary of the WA Branch, as a reasonable branch secretary would have done, to view the circumstances overall, appreciate that the obligation to prepare, present and lodge returns had not been completed for many years as at this date, and realise that the difficulties preventing that from being done were still extant.
166 A reasonable branch secretary would have addressed the need for additional resources, possibly both internal and external, to ensure that the work that needed to be done was approached as a first order requirement. Mr Olson seems to have adopted the approach that the job would eventually be completed, and that the regulator did not really mind when it was completed. As I have found that, in my view, involved a serious misreading of the situation. A reasonable branch secretary in the WA Branch's circumstances would not have so acted.
167 Mr Olson's defence of inaction as of November 2012, is that communications between him and Mr Pfeiffer were "based upon a timetable [he] pressed for" and he was advised the work could be achieved by the experts doing the work.
168 Mr Olson again primarily relies on there being "no prosecution, no investigation, and no sign of any" as a reason why he should be excused from compliance with the duties imposed on him as Branch Secretary under the RO Act.
169 Again I fully reject that defence. Mr Olson had no proper basis upon which to think that the regulator was condoning his delays. Any proper assessment of the sequence of dealings with the regulator shows, as I have said above, that the regulator, early on, to some extent may be taken to have opted for a "line of least resistance" in the hope that Mr Olson would cause the required returns to be lodged sooner than later. Then there was the threat of prosecution. The negotiations and discussions with Mr Pfeiffer occurred in that context. There was no condonation of Mr Olson's delays.
170 As to Mr Olson's continued reliance on the experts, Mr Allanson continued to be involved in assisting the WA Branch to complete its financial statements and statutory returns. However, the issue in November 2012 was no different from what it had been in the earlier relevant time periods. The delays with the filing of the various returns remained. So did the need, in November 2012, for Mr Olson to cause proper resources to be allocated, as a first order priority, to preparations of the returns. The need to do this remained unaffected by industrial campaigning.
171 Mr Olson also seeks to justify his inaction by saying Mr Allanson did not ask for more resources. Mr Olson was the Branch Secretary. I consider that a reasonable branch secretary in the circumstances of the WA Branch, as they had developed to this point, would have been approaching the question of the continued delays in quite a different way from that in which Mr Olson approached the question. Mr Olson's subjective assessment was that in the circumstances he would not and should not be penalised for any further delays. His assessment of the position of the regulator was unrealistic. A reasonable branch secretary would have moved to allocate significant resources to ensure the WA Branch's affairs as a priority without further delay.
172 As of December 2012, the need for accounts and returns to be completed and lodged in a timely fashion was only becoming more urgent by the month, and yet Mr Olson did nothing substantive about remediating the situation.
173 It must have been apparent to him that his earlier "plan" was not resulting in the completion of the tasks at hand.
174 As in each of the previous relevant periods, the subject of the earlier contravention allegations, the situation had, in effect, only got worse by this time.
175 With Ms Jowett-Blinman going on leave with the statutory returns since 2009-10 not completed, as the Commissioner submits, one would expect that a branch secretary, in the circumstances of the WA Branch, would again realise that this was a significant time in which further resourcing was required in order to get the job done - not to be put off in her absence.
176 In January 2013, Mr Olson was given notice that the Fair Work Commission had commenced an investigation into the WA Branch's apparent non-compliance with its reporting obligations. Mr Olson says he considered that sufficient work and resources had been invested into getting the accounts into order and the fact of an investigation was not going to enable that process to be completed any sooner.
177 In my assessment, however, in January 2013 the situation was such that this was a critical reminder, or should have been another reminder and would have been to a reasonable branch secretary, that additional resources were required by way of additional personnel to ensure the ongoing non-compliance with the reporting obligations could be addressed as a matter of urgency.
178 As before, however, Mr Olson took the view that the work was being done, mainly by Mr Allanson, and nothing further was required. This was an inadequate response by any measure.
179 In February 2013, the Federal Executive of the ANMF called for urgent lodgement by the WA Branch. Mr Olson says the work had to be done by those who had been engaged to complete it, as best and fast as they could get it done properly.
180 The simple fact of the matter was that there was continuing non-compliance at this point. When that resolution was passed by the Federal Executive, it was yet another clarion call to action and for Mr Olson to get the jobs required done by deploying further resources by way of personnel to complete the tasks which had been outstanding for so long. A reasonable branch secretary in the circumstances of the WA Branch would have recognised this, notwithstanding Mr Allanson's continuing engagement and the industrial campaigning activities of Mr Olson.
181 In March 2013, the regulator rejected the 2007, 2008 and 2009 "draft" returns. Mr Olson says this caused an unexpected and "unprecedented" obstacle in getting the required work on all reports completed and returns lodged.
182 However, the delays and the reasons for them up to that point must be taken into account, cumulatively, such that as of early March 2013 the conduct of Mr Olson in not applying appropriate resources up to that date continued to apply at this point and help explain why amendments became necessary.
183 Nonetheless, even though the accumulated failures continued to be relevant at this point in March 2013, no doubt the rejection of the 2007, 2008 and 2009 reports did further delay the work that was then being undertaken. Taking all factors into account, this particular event may be considered something out of the ordinary, such that a reasonable branch secretary in the circumstances of the WA Branch could not reasonably be called to account for contravention of s 285(1) by reason of such circumstances.
184 By the end of May 2013, however, and given the overall history of non-compliance with the lodgement of returns required under the RO Act, the failure to lodge the returns according to the undertaking given by Mr Olson was conduct in continuing breach of s 285(1).
185 In short, the preparation of the then-outstanding returns plainly was not treated with anything like the urgency that it should have been. A reasonable branch secretary in the circumstances of the WA Branch would have acted urgently to meet the required undertaking.
186 The situation in July 2013 remained the same as in May 2013. The 2011-12 return in particular had not been lodged.
187 The substantive defence advanced by Mr Olson to the continuing default, is that from 2013 onwards the Attaché software had been replaced and all reports thereafter were lodged on time.
188 That, however, is no answer to the question posed, namely, that as of July 2013, while the 2009-10 and the 2010-11 returns were lodged, the 2011-12 return had not been progressed in a material way at that time.
189 Given everything that had occurred up to this point, taking everything into account that had preceded it, Mr Olson continued to fail as of July 2013 to respond with the urgency that a reasonable branch secretary in the circumstances of the WA Branch would have responded, to allocate additional resources to completing the outstanding statutory returns.
190 It is no answer to say that from 2013 onwards, the Attaché software was replaced and all reports have since been lodged on time.
191 I have indicated at various points above that I consider Mr Olson has made more of the Attaché issue than it warrants. He has in many respects, leaving aside the question of condonation by the regulator, sought to lay the fault for his default in lodging statutory returns at the feet of the Attaché software.
192 While there is no doubt there was an issue in the sense that there were around 1,500 transactions that were not properly entered on the electronic system prior to July 2010, neither the evidence of Mr Olson, nor, in my opinion, that of Mr Allanson, substantially explains why it should have taken more than a few months, at the most, to reverse and correctly re-enter into the Attaché system the affected transactions.
193 Nor is there any proper explanation, in my view, having regard to the evidence given, why the 2009-10 and 2010-11 statutory returns were not initially filed until July 2013.
194 I accept the submission made on behalf of the Commissioner that while Mr Allanson brought some skill to the accounting tasks that needed to be completed for the statutory returns to be filed, he was far from being a full-time consultant, dedicated to that task. Schedule 1 to the closing submissions of the Commissioner, the content of which I accept, discloses that Mr Allanson's engagement between July 2010 and July 2013 oscillated. He worked more hours in January and February 2011 than he had done in previous months. Thereafter, his hours varied, between as many as 92.5 hours in February 2011 to none in September 2011 and without any obvious pattern.
195 Mr Olson relies on the engagement of Mr Allanson, in particular, to show that Mr Allanson's engagement over the course of three years from July 2010 "increased". I accept the Commissioner's submission that in some months it actually decreased.
196 I have little doubt that Mr Allanson's involvement in the process by which the Attaché problem was to be solved and the accounting needs of the WA Branch were to be met so that the outstanding statutory returns could be filed, was helpful. But, the evidence far from satisfies me that Mr Olson, by deploying Mr Allanson, did all that could have been expected from a reasonable branch secretary, to get the statutory returns completed earlier than they were.
197 I accept the Commissioner's submissions that, on the evidence, more could have been done, in a shorter period, to resolve the batching problem - that is to say the Attaché issue - and to ensure the outstanding statutory returns were filed at a much earlier time.
198 Ultimately, the Attaché system was abandoned and a new system introduced. Exactly why that replacement arrangement took so long to achieve is not adequately explained by the evidence adduced by Mr Olson.