As Chris Merritt points out in his characteristically forensic style, Western Australia's Associations Incorporation Act provides that a union cannot incorporate under the provisions of this Act.
What is not widely known is the definition that the Act used in 1992 (the time of Ms Gillard's work on the AWU Workplace Reform Association) to determine whether or not an entity is a union.
In 1992 the WA Associations Incorporation Act referred to WA's 1902 Trade Unions Act to provide the definition of what was a trade union. And that definition was very broad. For the purposes of Western Australia's Associations Incorporation Act, a union was a "combination" that sought to regulate relations "between workmen and employers". You'll read more in Chris Merritt's article from Friday's The Australian attached below.
This is an immensely important fact in the course of conduct of The AWU Scandal. It's worth spending a moment to ponder this fact before we move on.
The law says that a union can't incorporate under the provisions of this Act. The definition of a union is very broad. It's set out in Western Australia's 1902 Trade Unions Act. Here is the reference from the WA Associations Incorporation Act.
In a moment you'll read the Objects of the AWU Workplace Reform Association. Under the Trade Unions Act of 1902, it's impossible to define the Association as other than a Trade Union. And because of that it was ineligible for incorporation under the Act that made it easy for Lacrosse, Tennis and coin-collecting associations to incorporate.
Now why all the effort to get this particular Association incorporated? Why was it so important that this particular Association was an incorporated body? Julia Gillard's says this in the Record of Interview upon her exit from Slater and Gordon:
It's, it's common practice, indeed every union has what it refers to as a re-election fund, slush fund, whatever, which is the funds that the leadership team, into which the leadership team puts money so that they can finance their next election campaign. It is not proper to use union resources for election campaigns so you need to finance them yourself. Some of them, you know, they can cost $10,000, $20,000 -- they're not cheap. So the usual mechanism people use to amass that amount of money is that they require the officials who ran on their ticket to enter payroll deduction schemes where money each week or fortnight goes from their pay into a bank account which is used for re-election purposes from time to time. They also have different fundraisers, dinners and raffles and so on to amass the necessary amount of money to mount their re-election campaign.
(Several lines redacted.)
The thinking behind the forming of incorporated associations is that it had been our experience that if you did it in a less formal way, you just had someone, say Fred Bloggs, say, oh look, I'll just open a bank account and everybody can put the money into there, the problem developed that when the leadership team fractured, as relatively commonly happens, you got into a very difficult dispute about who was the owner of the monies in the bank account, so it was better to have an incorporated association, a legal entity, into which people could participate as members, that was the holder of the account.
(Two and a half pages redacted.)
PG: Yes. And to the extent that work was done on that file in relation to that, it was done by you?
JG: That's right.
PG: And did you get advice from anyone else in the firm in relation to any of those matters?
JG: No, I didn't.
(Two pages redacted.)
So that was the reference to the AWU-WRA from the 11 September, 1995 Record of Interview. It was released to the public in August, 2012. Then on Thursday, 29 November, 2012, as a result of Bruce Wilson speaking publicly about The AWU Scandal, further previously redacted elements of Ms Gillard's exit Record of Interview were released and published. Note in particular the reference in the ROI to the letter to the WA Corporate Affairs Commissioner, particularly relevant once you understand the effect of WA's 1902 Trade Unions Act. It strikes me as not just reasonable that the Commmissioner knocked back the application, rather it's inconceivable that the application could have been approved as it was once you understand how the Trade Unions Act of 1902 defines a union.
PETER GORDON: All right, well, let's talk about the AWU Workplace Reform Association Account. That account, as you've said, is an account which was the account belonging to an incorporated association by the same name which was incorporated by Slater & Gordon at (Bruce) Wilson's, on Wilson's instructions following your advice to him which you described earlier.
JULIA GILLARD: That's right.
PG: And that happened in or about mid-1992.
JG: That's right.
PG: And last Monday I think you gave to Paul Mulvaney a follow-up which demonstrates that Slater & Gordon had drafted model rules for, for that, had submitted those rules to the relevant Western Australian government authority, that there'd been a letter from the authority suggesting that it might be a trade union and therefore ineligible for incorporation under that legislation, and that we had prepared a response submitted on Wilson's instructions to that authority suggesting that in fact it wasn't a trade union and arguing the case for its incorporation. My recollection is that all of that happened in or about mid-1992. Is that right?
JG: I wouldn't want to be held to the dates without looking at the file, but whatever the dates the file shows are the right dates, so . . .
PG: Yes. And to the extent that work was done on that file in relation to that it was done by you?
JG: That's right.
PG: And did you get advice from anyone else in the firm in relation to any of those matters?
JG: No I didn't.
PG: Did Tony Lang have anything to do with the model rules or the drafting of them?
JG: No, I obtained, I had just in my own personal precedent file a set of rules for Socialist Forum which is an incorporated association in which I'm personally involved. Tony Lang and I drew those rules some years ago. Tony more than me. And I've just kept them hanging around as something I cut and paste from for drafting purposes, and I obtained, I don't quite recall how now but I obtained the model rules under the WA act and I must have done the drafting just relying on those two sources. I don't have any recollection of sitting down with Tony or any other practitioner and talking through the draft of the rules.
PG: Do you recall whether when it was necessary to argue the case with the, with the relevant Western Australian authority, whether you consulted anyone else in the firm as to what would or would not get, become acceptable or appropriate?
JG: I once again don't recall talking to anybody else in the firm about it.
PG: Beyond that, and it seems from the file that after that letter it was successfully accepted as an incorporated association and duly was created and presumably accounts were set up. I should ask did we have anything to do with the setting up of the accounts or was that done by the officers of the incorporated association?
JG: Slater & Gordon didn't have anything, did not have anything to do with setting up bank accounts for that association. We attended to the incorporation.
PG: Can I ask you then following the last thing that we did to setting up the incorporation, which appears from the file to be the letter arguing that it ought to be not construed as a trade union, did you have anything personally to do with that incorporated association afterwards?
JG: No I did not.
PG: Right, to the best of your knowledge did anyone at Slater & Gordon?
JG: To my knowledge no one at Slater & Gordon had anything to do with it post that time.
It's clear from the Objects as drafted by Ms Gillard that the drafting was done with the WA Associations Incorporation Act on the desk. There are many specific references to provisions required by The Act within the Objects. It's inconceivable that a competent industrial relations lawyer could have missed the import of the provision within The Act about the Trade Unions Act and its definition of a union. And yet still Ms Gillard persisted in the now complex deception of the Commissioner, writing to him to give him "official" comfort that the AWU-WRA was not a union for the purposes of the Trade Union Act, 1902.
Here is Ms Gillard's Objects (rules and/or Articles) of the AWU-WRA.
Her story about the benefits of incorporation for the purposes of better control of each official's stake in a union re-election fund does not hold water. Keep in mind that Ms Gillard had some 20 odd other trade unions as clients. Nowhere else has she recommended this structure, let alone gone in to bat for it against quite proper official aversion to its incorporation. Each of those other re-election slush funds seemed to operate quite well without passing itself off as a legitimate part of the union itself and without the "benefits" of incorporation. Indeed the WA Branch of the AWU had a relection fund which was unincorporated and it called itself what it was, the WA Re-Election fund.
So why so much action to incorporate just this association, her boyfriend Bruce Wilson's secret slush fund? Why not let it go? Why not simply advise him that it was illegal to proceed with the incorporation? Why go to such elaborate lengths to get the name AWU in the title, and the suffix "Incorporated" after the Association's name?
It's Ralph Blewitt's evidence that Thiess executive Joe Trio told Wilson and Blewitt that Thiess's auditors would not allow Thiess to pay invoices from an unincorporated entity for the "imaginary" Workplace Reform Advisors that the AWU-WRA Inc would ultimately receive about $400,000 for. So for the scam to work, the evidence is that the invoicing entity had to look like an entity of the AWU, and had to be an incorporated body.
From this point 20 odd years hence, one thing is very, very clear. Considerable misleading and deceptive conduct and documentation attended the process of incorporation of the Australian Workers' Union - Workplace Reform Association Incorporated. There was no file in the law firm, no fee for the work, the Association's existence was a secret, no one else at the AWU knew of its existence, it was operated through a private Post Office Box, Slater and Gordon acted in the conveyance of a house bought in part with money from the slush fund again without fee, hundreds of thousands of dollars in folding cash were withdrawn from the Association, and when the Slater and Gordon partner responsible for the work in setting up and going in to bat for the Association was interviewed on the record about it, no one at Slater and Gordon thought to advise the union or police about the Association's existence.
John Metaxos, the former Corporate Affairs Commissioner for Western Australia is certain that theAWU name in the Association's title would have triggered queries.
I have posted quite a few pieces about the AWU-WRA. It really is at the heart of The AWU Scandal, and that places Prime Minister Gillard fairly in the frame for questioning about the heart of the fraud.
You will have seen Ms Gillard's protestations of innocence, with her ministers (Craig Emerson prominent among them) singing from the same song-book. "It wasn't a union" she said. Well yes it was and you misled the Corporate Affairs Commissioner by arguing otherwise.
And so to Chris Merritt's excellent piece in The Australian from the published edition of Friday, 7 December, 2012.
Prime Minister's chief spear carrier fails Journalism 101: basic research
- by: Chris Merritt
- From:The Australian
- December 06, 20128:54PM
It look Mark Latham about three months, but he has finally caught up
AT long last, Mark Latham is edging closer to the issue at the heart of Julia Gillard's involvement in the AWU slush fund affair.
Latham, who has emerged as the Prime Minister's chief spear carrier, touched on that issue yesterday in his column in The Australian Financial Review.
It was devoted to pouring scorn on journalism in general and your correspondent in particular.
For that I am forever in his debt: you can judge people by the quality of their enemies.
If Latham's google-eyed vitriol is put to one side, the former Labor leader has actually done a great service to his readers.
He has finally distanced himself from the main thrust of an error-filled rant that appeared under his byline on August 30.
The key issue is whether the slush fund formally known as the AWU Workplace Reform Association could have been legitimately incorporated.
The Prime Minister, who provided legal advice for the incorporation of the association that she later described as a slush fund, has consistently denied any wrongdoing.
Yesterday, Latham wrote that in 1992, when the association was incorporated in Western Australia, "it was not possible for unions to be registered as incorporated associations". That must have hurt.
On August 30, he took a very different view and was picked up on it by your correspondent. He had quoted an anonymous official as telling him "you can basically register anything as long as it's not-for-profit". It look Latham about three months, but he has finally caught up.
So was it a union? Gillard says she wrote to the WA Corporate Affairs Commission arguing that it was not a union. And if the normal dictionary definition is applied, it clearly was not.
But under the version of the Associations Incorporation Act that was in force in 1992, trade unions could not be incorporated. And to determine whether an entity is a "union", the legislation referred to the definition in the state's 1902 Trade Unions Act.
And that definition is extremely broad. Read in conjunction with section 4(3) of the 1987 Associations Incorporation Act, it would prevent the registration of organisations that bear only a passing resemblance to what is currently understood to be a union.
It would prevent the registration of "any combination, whether temporary or permanent" . . . "for imposing restrictive conditions on the conduct of any trade or business".
A union was also considered to be a "combination" that sought to regulate relations "between workmen and employers".
Now consider the objects of the AWU Workplace Reform Association, drafted by Gillard.
They state that the association's objects are "to contribute to the development of changes to work in order to achieve democratic, safe workplaces".
The association was also intended "to contribute to the implementation of a more equitable distribution of wealth between employers and workers".
After reading those objects, and referring to the relevant legislation, it should surprise nobody that the WA officials sought reassurance about the true nature of this organisation.
What is surprising is the fact that Latham, the great critic of journalism, has chosen not to do a little digging. All the law cited above is publicly available.