Robertson, D.M. v The State Public Services Federation
[1993] FCA 560
•21 JULY 1993
DIANE MARGARET ROBERTSON v. THE STATE PUBLIC SERVICES FEDERATION
No. WAI4 of 1993
FED No. 560
Number of pages - 8
Industrial Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
French J(1)
CATCHWORDS
Industrial Law - registered organisation - elections - disqualification from holding office - conviction for prescribed offence prior to election - leave to hold office - strong fiduciary elements in discharge of office - leave to hold office granted.
Industrial Relations Act 1988 (Cth) ss 228, 229
Industrial Relations Act 1979 (WA)
Public Service Act 1978 (WA)
HEARING
PERTH, 21 July 1993
#DATE 21:7:1993
Counsel for the Applicant: Ms. P. Giles
Solicitors for the Applicant: Dwyer Durack
ORDER
THE COURT ORDERS THAT:
The applicant have leave to hold office in the State Public Services Federation.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
FRENCH J In September 1989, Diane Margaret Robertson applied for a position in the State Public Service of Western Australia as a Senior Project Officer, Level 5, in the Bureau for the Aged. She had filled the position in an acting capacity for four months when it was advertised. It was a requirement of the position that the appointee hold tertiary qualifications. At that time Mrs Robertson was enrolled in a course for the degree of Bachelor of Arts at Murdoch University by external studies and had completed six units towards that degree. On the day prior to her interview for the position, she used a piece of paper bearing the letterhead of the External Studies Unit at Murdoch University and wrote a letter on it saying that she had the necessary qualifications for the position for which she was applying. She signed the letter as "Director of External Studies Unit, Murdoch University" and faxed a copy to the Personnel Manager of the Department of Land Administration which administers personnel matters for the Bureau for the Aged. Soon after her interview for the job Mrs Robertson withdrew her application for the position and told the Director of External Studies at Murdoch University what she had done. She was subsequently informed by the Director of the Bureau of the Aged that she was to be charged under the disciplinary provisions of the Public Service Act 1978 (WA). On 28 November 1989, she was charged under s.45(1) of the Public Service Act 1978 (WA) and admitted the charge in writing to the Executive Director of the Department of Land Administration on 30 November 1989. On 23 January 1990, Mrs Robertson was advised by officers of the Fraud Squad of the Western Australian Police Force that the matter had been referred to them by the Public Service Commission. She made a full statement to the Fraud Squad on 24 January 1990 and was subsequently charged with four counts of forging and uttering. On 26 January 1990, the Public Service Commission requested that she resign from her position immediately. She appealed the decision of the Public Service Commission to the Western Australian Industrial Relations Commission on 12 February 1990. On 18 April 1990 she was fined $100 on each of the four charges of forging and uttering. On 3 August 1990, following a hearing before the Western Australian Industrial Relations Commission, the Public Service Commission was ordered to reinstate Mrs Robertson in a position commensurate with her previous position. On 3 September 1990 she commenced duties as a public servant in the position of research officer with the Government Employees Superannuation Board.
Mrs Robertson currently holds the position of Executive Officer to the Government Employees Superannuation Board. She has, for a number of years, held various positions in the Civil Service Association of Western Australia and is currently its Junior Vice-President. The Civil Service Association is a state union. That is to say, it is registered under the Industrial Relations Act 1979 (WA). As a result of a referendum held in the Civil Service Association in March 1993, it is proposed that the Association unite with and become the Western Australian branch of the State Public Services Federation which is registered under the Industrial Relations Act 1988 (Cth). It is also evidently intended that the Civil Service Association apply for a certificate from the Industrial Relations Commission of Western Australia under s.71 of the Industrial Relations Act 1979 (WA) which, if granted, would treat office holders in the State Public Services Federation as also holding corresponding office in the Civil Service Association.
Elections are to be conducted by the Federation in August 1993. Nominations are opening on 26 July and close on 13 August. Mrs Robertson wishes to stand for the position either of President or of Vice-President. By virtue of her convictions she cannot do so without the leave of this Court. She now seeks that leave.
Statutory Framework
4. The Industrial Relations Act 1988 (Cth) contains provisions relating to the disqualification from office of persons who have been convicted of prescribed offences. Prescribed offences are defined in s.227, which provides, inter alia:
"227(1) In this Division: "prescribed offence" means:
(a) an offence under a law of the Commonwealth, a State or Territory, or another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more;
(b) an offence against section 313, 314, 315, 316, 317, 318 or 332;
(c) any other offence in relation to the formation, registration or management of an association or organisation; or
(d) any other offence under a law of the Commonwealth, a State or Territory, or another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property."
The other sub-sections of s.227 are not relevant for present purposes.
The disqualifying provision is to be found in s.228:
"228(1) A person who has been convicted of a prescribed offence is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation unless:
(a) on an application made under section 229 or 230 in relation to the conviction of the person for the prescribed offence:
(i) the person was granted leave to hold office in organisations; or
(ii) the person was refused leave to hold office in organisations but, under paragraph 229(2)(b) or 230(2)(b), the Court specified a period for the purposes of this subsection, and the period has elapsed since the person was convicted of the prescribed offence or, if the person served a term of imprisonment in relation to the prescribed offence, since the person was released from prison; or
(b) in any other case - a period of 5 years has elapsed since the person was convicted of the prescribed offence or, if the person served a term of imprisonment in relation to the prescribed offence, since the person was released from prison."
The other sub-sections of s.228 are not presently relevant.
Applications for leave to hold office may be made pursuant to s.229 which provides:
"229(1) A person who:
(a) wants to be a candidate for election, or to be appointed, to an office in an organisation; and
(b) has been, within the immediately preceding period of 5 years, convicted of a prescribed offence or released from prison after serving a term of imprisonment in relation to a conviction for a prescribed offence;
may, subject to subsection (4), apply to the Court for leave to hold office in organisations. 229(2) Where a person makes an application under subsection (1), the Court may:
(a) grant the person leave to hold office in organisations;
(b) refuse the person leave to hold office in organisations and specify, for the purposes of subsection 228(1), a period of less than 5 years; or
(c) refuse a person leave to hold office in organisations.
.
.
.
229(4) A person is not entitled to make an application under this section in relation to the person's conviction for a prescribed offence if the person has previously made an application under this section or under section 230 in relation to the conviction."
Section 230 provides for applications for leave to be made by a person currently holding office in an organisation where such a person is convicted of a prescribed offence.
The Court is required under s.231 to have regard to various matters in the exercise of its power to grant or refuse leave under ss. 229 or 230. The matters are:
"(a) the nature of the prescribed offence;
(b) the circumstances of, and the nature of the person's involvement in, the commission of the prescribed offence;
(c) the general character of the person;
(d) the fitness of the person to be involved in the management of organisations, having regard to the conviction for the prescribed offence; and
(e) any other matter that, in the Court's opinion, is relevant."
It is to be noted also that by virtue of s.232(3) where an application is made to the Court under s.229 or s.230, the organisation concerned shall be given an opportunity of being heard by the Court. The respondent in this case, the State Public Services Federation, did appear at the first directions hearing and has indicated that it does not oppose the application.
The Evidence
8. There was before the Court affidavit evidence going to the circumstances of the commission of the offences, Mrs Robertson's general good character, the medical condition and personal circumstances which are said to have played a part in the commission of the offences and her performance as an employee of the Government Employees Superannuation Board and as Junior Vice-President of the Civil Service Association. Mrs Robertson herself gave oral evidence.
I turn first to Mrs Robertson's affidavit and the testimony which she gave. She commenced employment as a temporary clerical assistant in the Public Service Board on 6 March 1984. She has three children whom for the last 11 years, since her husband's death, she has raised by herself. On 24 October 1984 Mrs Robertson became a permanent officer in the Western Australian State Public Service. In November 1985 she was appointed to a Level 1 position in the Public Service Board. In May 1986 she was again promoted to a Level 2 position in the Department of Community Services. In October 1987 Mrs Robertson was promoted to a Level 3 position in the Department of Premier and Cabinet, with the designation of Administrative Assistant. In November 1988 she became a Level 4, Community Liaison Officer with the Bureau for the Aged, which is a State Government agency, reporting directly to the Minister for the Aged. The duties associated with that position included organising and co-ordinating Seniors Week and functions throughout the State, liaison with community groups, representing the Bureau on a number of committees and working parties and co-ordinating resources available to seniors in Western Australia. When she took up the position she was requested by the Director of the Bureau to cancel her annual leave which had been approved so that she could start her duties immediately. She had not had leave for two years prior to that time and her duties at the Premier's Department had been stressful. However she believed that if she did not take the position up immediately her promotion might be in jeopardy and she agreed to do so. In the co- ordination of Seniors Week she was required to work extended hours, including weekends, with minimal clerical support. She began to have, at that time, some difficulties with her youngest son who was aged 14, including behavioural problems at school.
During her time at the Bureau Mrs Robertson was under significant pressure trying to reconcile personal and employment responsibilities. She was exposed to extended hours and weekend work and was again asked to defer leave in about mid-April 1989. There was, she says, a significant lack of support staff. She was required to do her own word processing and photocopying as well as meet the professional duties which were involved in the position. In May 1989 she was appointed to the position of a senior project officer as an Acting Level 5 in the Bureau for the Aged. She had requested that she be permitted to act in the position until such time as it was advertised, as it was a "9 to 5" position which required little work out of those hours. Mrs Robertson wanted to enhance her skills and increase her experience but also take advantage of the more regular working hours. However, soon after she commenced in that position, its duties were expanded to include the provision of executive support to the Ministerial Advisory Council to the Minister for the Aged. That role included responsibility for taking minutes, preparing correspondence and attending country regional visits, which involved time away from home while travelling. The lack of clerical support continued. Upon Mrs Robertson being appointed to the acting position, somebody else was appointed on a temporary basis to act in her substantive position in the Bureau. That person was a single supporting parent who was concerned for her own future employment prospects. In Mrs Robertson's perception, her own situation became complicated as the other person's employment depended upon Mrs Robertson continuing in the higher position. She had concerns about her work load and she had discussions with the Director of the Bureau about the work load but no action was taken to alleviate the position.
In September 1989, an advertisement appeared in the Public Service notices for the position of Senior Project Officer, Level 5, which was the position in which Mrs Robertson had been acting for four months. The person acting in her substantive position became anxious about her own future. Mrs Robertson said she felt under a good deal of pressure from her colleagues to apply for and secure appointment to the Level 5 job to relieve the stress on the person acting in her substantive position. She had been told on a number of occasions that it was expected she would gain the position of Senior Project Officer. She perceived that it was generally assumed she would be appointed. When the position was advertised she became aware that one of the requirements was a tertiary qualification. Initially she took this requirement to mean that progress had been achieved towards tertiary qualifications by means of completing units in a tertiary course. Mrs Robertson applied for the advertised position and received telephone calls from the Department of Land Administration asking her to provide evidence of her tertiary qualification. She found that this required evidence of completion of a recognised degree, rather than units towards a degree. She was to be interviewed for the position and felt under considerable pressure to prove that she had the relevant qualification. Mrs Robertson was at this time under personal and work stress in the circumstances which have already been set out. It was in these circumstances that the offences were committed.
According to Mrs Robertson, she was not acting in a rational manner at the time she committed the offence. Her response to the need to provide evidence of a tertiary qualification was made in a state of what she describes as great confusion and distress. However, she says that very soon after the job interview she realised the seriousness of her actions and, in an effort to redress the situation, withdrew her application. She saw the Director of External Studies at Murdoch University, Mr Guiton, and informed him of her actions and the surrounding circumstances. The University advised her that while it regarded her actions as being extremely grave and unacceptable, no further action would be taken against her in view of the circumstances. There was a letter from the University to that effect which is exhibited to her affidavit. There then followed the charge under the disciplinary provisions of the Public Service Act 1978 (WA), a police investigation and the charges and convictions and the action by the Public Service Commission and her subsequent reinstatement to which I have already referred. In her affidavit at para.42, Mrs Robertson says:
"I believe that my actions in misleading the Public Service Commission about my qualifications in September 1989 were prompted by having been under extreme personal and work-induced stress. I had not had leave at that time for 3 years with the exception of the 5 days prior to taking up my duties at the Bureau of the Aged. I was working in senior positions requiring a high level of professional competence and expertise and in addition was performing a wide range of secretarial duties due to the lack of clerical support in the Bureau of the Aged. I was working, a minimum of 9 hours per day and worked frequently on weekends in order to attempt to keep up with my work load. I also had frequent country visits necessitating absences from home. I was seeking medical attention at the time for stress-induced difficulties. My family circumstances were also very difficult as my son was continuing to display behavioural problems."
She points out that in her work at the Bureau for the Aged and now at the Superannuation Board, she has performed and continues to perform duties which involve a high level of responsibility. Her current position at the Government Employees Superannuation Board involves making decisions on a daily basis concerning execution of legal documents and she has the custody of the Board's seal. She has been involved in the Civil Service Association for many years and held a number of senior and responsible positions in that organisation, and is currently Junior Vice-President and wants to maintain and expand her areas of union involvement.
There is a medical report exhibited to an affidavit of Mrs Robertson's doctor, Malcolm Washer, who says that she has been a patient of his since June 1984. That report provides, inter alia, independent support for Mrs Robertson's evidence that she was suffering considerable stress at the time of the offence. In May 1989 she had symptoms of duodenal ulceration. There was a family history of that disease and according to her doctor it was highly probable that her symptoms were aggravated by stress. She has suffered episodic depression and has been treated with medication for that. Since 10 August 1992 she has been treated with a new anti-depressant agent which has improved her condition quite dramatically. The doctor considers that Mrs Robertson is prone to recurrent depressive episodes with premenstrual exacerbation. It is possible these will recur. However, with medication they are easy to control. He thinks it highly probable that Mrs Robertson had a similar episode in 1989 when she committed the offences. He has known her since 1984 and has formed the impression that she has always been a person of honesty, high integrity and good character, and that her behaviour in 1989 was influenced by emotional factors beyond her control. He considers that those factors have been identified and that they can be managed and treated.
Sally Zanetic is the Director of Human Resources at the University of Western Australia. She has known Mrs Robertson since 1984 at which time Mrs Robertson was a junior officer in the staffing branch of the Public Service Board and Ms Zanetic held a management position there. She has maintained occasional contact with Mrs Robertson since that time on a personal and professional basis. She does not regard her as a close personal friend. She found Mrs Robertson to be competent, reliable, hard working and trustworthy and to demonstrate a high level of initiative, motivation and ability. Ms Zanetic was aware of the convictions recorded against Mrs Robertson but regarded the whole episode as being out of character. She also corroborated what she described as the tragic circumstances which had led to Mrs Robertson being a single parent and sole bread-winner for her three children and regarded the offence as an uncharacteristic aberration.
Owen Stanley Middleton has also sworn an affidavit in support of the application. He is a Board member of the Government Employees Superannuation Board and has held office on the Board as an employees' representative since June 1988. He held the position of Deputy Chairperson by rotation from 1989 to 1991. He has known Mrs Robertson for some eight years, initially in his capacity as President of the Civil Service Association, which position he held from 1976 to 1992. He knows Mrs Robertson in her capacity as Executive Officer to the Government Employees Superannuation Board. In that position, he says, she has demonstrated discretion, initiative and reliability. She attends all Board meetings and takes all minutes of the Board and its investment sub-committee. Their deliberations, he says, are of a confidential nature and are sensitive from a political and public viewpoint. He has never had any concern about her observing confidentiality. He says he places absolute trust in Mrs Robertson and considers her to be of good character. This, he says, has been demonstrated by her dedication to duty as both an employee of the Government Employees Superannuation Board and as a representative of members of the Civil Service Association. Mr Middleton considers that the offences were out of character and prompted by great personal stress and believes it to be most unlikely she would ever again commit such offences. He adds that he does not regard himself as a close personal friend of Mrs Robertson. He says they have frequently had differing views on matters within the Civil Service Association and that he believes he can offer an objective point of view concerning her integrity.
David Alexander Robinson, who is the Branch Secretary of the Western Australian Branch of the State Public Services Federation, explains the background to the referendum and proposed amalgamation and goes on to say that he has known Mrs Robertson for the past eight years in which she has held various positions within the CSA. He believes her to have an unselfish commitment to the membership of the Association. He says she has strong and forthright views and that while they have not always been in agreement, he supports her right to contest the impending elections in the Federation. Mr Robinson is aware of the convictions both because it is common knowledge within the Civil Service Association and also because the Civil Service Association represented Mrs Robertson in an unfair dismissal application in the Western Australian Industrial Relations Commission. She was recently elected by a very large majority of the membership as a Junior Vice-President against another strong candidate. He has worked with Mrs Robertson in a number of different spheres of union activity and does not have concerns about her ability to handle the responsibility of a senior union office. He also says, and I accept it, that at a Branch Council meeting of the Western Australian branch of the Federation held on 7 July 1993, a resolution was passed supporting her right to nominate for office in the Western Australian Branch elections and instructing the Federation's solicitors to consent to the application.
CONCLUSION
17. The provisions of s.228 of the Industrial Relations Act 1988 (Cth) recognise that to hold office in a registered industrial organisation is to hold a position of trust which involves the maintenance and advancement of the interests of union members. There are obviously strong fiduciary elements involved in the discharge of the duties of such office. The legislation is intended to be protective of the interests of union members and to ensure that high standards are observed in those who are elected to, or appointed to, office within unions. A person who has been convicted of an offence involving elements of dishonesty or deception has a heavy onus to discharge in order to satisfy the Court to give leave to hold office in a union. The offences in this case were of a serious nature and would have justified Mrs Robertson's dismissal from the Public Service as was indicated in the report of the Public Service Appeal Board. Her reinstatement by that Board seems to have been due in part to its perception that the matter was mishandled by the Public Service Commission.
The circumstances of this case, while serious, place it in a range which is not as acute as cases that could be imagined which involve dishonesty and deception. There was evidence of great pressure on Mrs Robertson because of her personal circumstances and her medical condition. She did not pursue the deception which she initiated, and appears to have repented of it before being detected by a third party. The offences were committed over 3 1/2 years ago. That they were at the lower end of the scale of seriousness is reflected in the very low penalties imposed and the fact of her reinstatement. She has the confidence of her present employer and a majority of members in the Civil Service Association. The kinds of pressures which led to the commission of the offences could recur in some different manifestation, although that does not seem likely. Mrs Robertson has shown she is regarded as a person otherwise of generally good character. She is, I think, at this stage to be regarded as fit to be involved in the management of the Federation. That her fitness will be subject to the judgment of its members, many of whom will be aware of her convictions, is a further safeguard in this case.
In my opinion there is no reason to suppose that the interests of the members of the Federation would be prejudiced if the leave sought is given and I propose to make the order sought on the application.
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