APPENDIX G – PETER MYLAN AS ACTING GENERAL SECRETARY
1.Peter Mylan’s behaviour in relation to Michael Williamson was touched on earlier in the course of explaining the latter’s status and conduct.[1] This Appendixconcentrates on some related conduct of Peter Mylan and some further conduct.
2.From 22 September 2011 until 21 June 2012 Peter Mylan was Acting General Secretary of HSU East. He had begun his career as a rank and file member. From 1988 he was an organiser. From 2002 he was Assistant General Secretary of the NSW Branch. From May 2010 he was Deputy General Secretary of HSU East. From 2002 on his immediate supervisor had been Michael Williamson.
3.Peter Mylan became Acting General Secretary because Michael Williamson went on leave during the police investigation of Katherine Jackson’s complaints about him. He ceased to be Acting General Secretary when Flick J vacated all offices of HSU East at the same time as he placed HSU East and HSU East Branch into administration.
4.There are two key background facts to Peter Mylan’s term as Acting General Secretary.
5.The first was the taking of leave by Michael Williamson was scarcely a voluntary act. He was under a cloud. His absence was seen as an opportunity to cleanse the Union. The second is that on 22 September 2011 Peter Mylan successfully moved a resolution that led to the institution of the Ian Temby/Dennis Robertson inquiry. That component of the resolution suggested that the task to hand was to develop more transparency, scrutiny, honesty and efficiency within the Union. Peter Mylan himself said that the resolution as intended to deal with governance and business practices, integrity of Union records, access to financial and business information, and transparency and scrutiny. He also said that it was important not to prejudice the police investigation of Michael Williamson.[2]
6.Counsel assisting made criticisms of Peter Mylan over the lost documents issue. It is, however, difficult to reach clear factual conclusions about that.[3]
7.Apart from that, counsel assisting put three main criticisms of Peter Mylan. It is desirable to concentrate on them and leave out of account all other more complex criticisms and the responses Peter Mylan made to them.
8.The first criticism was that far from ensuring that Michael Williamson – a scarcely satisfactory figure of the old regime – kept out of union affairs, Peter Mylan (and indeed other officials) not only let him continue to have a large say in the Union, but cooperated with him. That blow to transparency and scrutiny was referred to above.[4] Peter Mylan defended himself by contending that he needed to rely on Michael Williamson’s experience. But he was a very experienced official. He should not have taken the job if he did not feel up to it. He also tried to rely on the fact that Michael Williamson was a very powerful man, and still remained Secretary. However, it was Peter Mylan who had the responsibilities of that role for the time being. It was on him that the duty to say ‘No’ to Michael Williamson lay. His tolerance and acceptance of Michael Williamson’s clandestine assistance made a mockery of any claim that henceforth members would be able to observe what was happening in their Union transparently.
9.The second and third criticisms are interlinked. They relate to the third and fourth charges on which Michael Williamson was later convicted.[5] They arose as follows.
10.On 25 January 2012 Peter Mylan received an email from Ian Temby QC requesting ‘all documents relating to financial transactions or dealings between the union and … [CANME] Services.’ Peter Mylan then had a conversation with Michael Williamson. The latter explained that CANME Services was a company he and his wife, Julieanne Williamson, set up. It had performed work for the Union some years ago. It had also been paid some years ago. But Michael Williamson claimed that the invoices had never been approved. He asked Peter Mylan to approve retrospectively the invoices for work which Michael Williamson claimed had been performed.[6] Additionally, Peter Mylan said that Michael Williamson also asked him to lie to Ian Temby and Dennis Robertson about his knowledge of CANME. Michael Williamson asked Peter Mylan to tell Ian Temby QC that he had seen the work being performed by Julieanne Williamson.[7] Peter Mylan told the police that he had been to the storage facility where Michael Williamson alleged that the work took place five or six times, and had never seen any evidence of the kind of records and activities that Michael Williamson was proposing that Peter Mylan should confirm he had knowledge about.
11.In short, the second criticism is that Peter Mylan, at Michael Williamson’s request, lied to Ian Temby and Dennis Robertson in his email of 5 March 2012. In it Peter Mylan replied to the 25 January 2012 email by saying: ‘The Invoices [were] received and I had no reason to doubt that the work had been done.’ This conveyed to Ian Temby and Dennis Robertson the false impression that the invoices had been approved at the time when payment was made and the work had purportedly been done. Peter Mylan admitted in evidence that this was a lie.[8] The third criticism is that Peter Mylan approved invoices for work which Michael Williamson claimed was performed, but retrospectively, and without actually knowing whether it had been performed. He admitted that this latter conduct created the false impression that a 2007 invoice had been approved in 2007 when it had not been.[9]
12.In relation to the first of counsel assisting’s three criticisms, counsel for Peter Mylan submitted that various parts of the 22 September 2011 resolution were severable, and that in effect Peter Mylan’s dealings with Michael Williamson were not in conflict with the motion. Counsel for Peter Mylan advanced a more elaborate defence of his conduct as follows.[10]
The Motion sponsored by Mr Mylan at the 22 September Union Council meeting was a motion to initiate the independent inquiry – it did not specify that Mr Williamson was to be excluded from that investigation. Mr Williamson went on approved leave – he remained the elected General Secretary. For more than a decade Mr Williamson and HSU NSW were, in effect, one and the same. Mr Williamson was Mr Mylan’s immediate supervisor, and he was answerable to him. It was Union Council’s role to exclude Mr Williamson from the workplace; it was Mr Temby’s job to specify if Mr Williamson was not to be consulted. Mr Temby, Union Council, the National Executive, Gerard Hayes all condoned Mr Williamson’s continued hold on the General Secretary position.
13.Those submissions must fail. They ignore the substance of what happened on 22 September 2011. Michael Williamson was on the way out. ‘Approved leave’ was a genteelformula for forcing him aside, or out. He was the elected General Secretary. But he was in disgrace. The point of forcing Michael Williamson to go on leave on 22 September 2011 was to enable others to run the Union in his place, not as his agent or under his control. Of course it might have been difficult for Peter Mylan to operate independently of his boss of nine years. That boss was a man of many parts. In some circles, he was a man of popularity. But that was the task Peter Mylan had been given and had accepted. The suggestion that Ian Temby, the Union Council and the National Executive – Gerard Hayes is in a different category – all condoned Peter Mylan’s behaviour in relation to Michael Williamson is baseless. It is not shown that they had any idea of the lengths to which Peter Mylan was permitting Michael Williamson to go. Counsel for Peter Mylan, who has not demonstrated that Michael Williamson’s activities were well known,[11] and who cannot rely on a lack of questioning of witnesses on the part of counsel assisting, could have endeavoured to elicit this evidence in cross-examination of those witnesses if it existed.
14.A related argument advanced by Peter Mylan was that there was nothing secret or non-transparent about his association with Michael Williamson. This is falsified by what happened at the HSU East Council meeting held on 7 February 2012 in Victoria. Several HSU members attended the venue seeking to be admitted as observers. One of them was Katrina-Anne Hart, President of the Randwick Campus Sub-Branch. She was a foe of the Williamson/Mylan faction and a supporter of the Katherine Jackson faction. Before the meeting began, Katrina-Anne Hart was informed by Kerry Seymour:[12] ‘We’ve made a decision,you’re not allowed to go [to the meeting].’ Katrina-Anne Hart said that she understood Kerry Seymour’s reference to ‘we’ as being Peter Mylan and Gerard Hayes, as Michael Williamson had stood down by this time.[13] However, unknown to Katrina-Anne Hart, Peter Mylan had a series of telephone conversations with Michael Williamson about what approach to take with the members who wanted to observe the meeting. In one intercepted telephone call Michael Williamson gave Peter Mylan direct instructions as to removing the observers and having the meeting abandoned. One of his instructions to Peter Mylan was:[14] ‘Okay. Now what you should do – I’ve just been thinking about it – just go into another room that’s available.’ Another was: ‘See if there’s another room available quickly.’[15] A third was:[16] ‘Right. Speak to Phil [Pasfield, a solicitor] and say all of the observers are sitting in the room we booked and are not coming out.’ A fourth was:[17] ‘If we then hold – we say the meeting’s now moved to another room.’ A fifth was:[18]‘…and the observers have already been told they can’t participate in the meeting, can we then just block them from coming into the room?’ Peter Mylan expressed some dissatisfaction at blocking the observers from entering the new room and did not want to make Katherine Jackson look like a martyr.[19] Michael Williamson then gave the following series of directions:[20]
Yeah, okay. Well, I think if you get – just talk to Phil and if Phil says abort the meeting, abort the meeting….
Go back in and you want to get a resolution with the observers in there – this is my take, ask Phil – that after having sought legal advice in relation to this and the refusal of the observers to leave the meeting, despite being resolved by council to do so, right?….
The resolution is that the meeting now be abandoned till a further date….
Just ask Phil that. What you want to get in there, into the resolution, is it was abandoned – it was abandoned because council had voted and said the observers were not to be admitted….
And they declined to leave the meeting and we had no other option than to postpone the meeting – not “cancel”, “postpone”, okay?
15.Peter Mylan agreed with Michael Williamson’s suggested course of action.
16.Shortly after this call Peter Mylan again called Michael Williamson informing him of what he had been told by lawyers. Michael Williamson asked Peter Mylan to ‘write out the resolution and ring me back and tell me what it says, mate, if you don’t mind. You can type it even to me if you want to. Just take your time and sent it to me, okay?’[21]
17.Peter Mylan then had two further telephone calls to Michael Williamson. They worked on finalising the wording for the resolution to suspend the meeting. Michael Williamson dictated the wording of the resolution to Peter Mylan and Steve Pollard, HSU East Branch President, who wrote it down verbatim in order to put it to the Council meeting.
18.Soon afterwards a resolution was passed in consequence of the mass support of the New South Wales supporters resolving that the matter be brought to an end.[22]
19.Peter Mylan said in evidence that he did not inform any of the former No 1 Branch or No 3 Branch members that the resolution put to the Council was dictated by Michael Williamson on the phone.[23]
20.This episode is an example of Peter Mylan’s faithlessness to the general understanding of 22 December 2011 that there should be transparency within the Union. Peter Mylan justified what had happened by saying that he was acting on legal advice and did not see it as being inconsistent with the Union Rules.[24] He also justified the ejection of the observers on the basis that this was necessary because of the factional infighting within the Union from which Katherine Jackson was attempting to obtain political benefit.[25] Peter Mylan said that Katherine Jackson had organised members of the media to come to the meeting and had organised New South Wales members to fly to Victoria in order to attend it. However, Katrina-Anne Hart said there was no such orchestration. She observed at the meeting conduct by Katherine Jackson which indicated that she did not even know the identity of one of the observers.[26]
21.If the nature and extent of Michael Williamson’s continuing involvement in union affairs really was a matter which was openly acknowledged, then this conduct, and the content of the intercepted telephone calls, would make no sense. The only explanation for what happened is that Peter Mylan and others were content to have Michael Williamson maintain almost complete control despite the public belief that he was ‘on leave’ and wished to ensure that this took place clandestinely.
22.On the strength of these three criticisms of Peter Mylan, counsel assisting submitted that the following findings should be made.
23.The first was that Peter Mylan had breached his fiduciary duty. He owed a duty to the Union to advance its interests. That conflicted with his loyalty to Michael Williamson and his evident desire to assist CANME Services and the Williamsons. By giving priority to his false loyalty, he caused detriment to the Union by increasing the costs of the Temby/Robertson investigation, prejudicing that investigation and creating false and misleading union records. Counsel assisting also submitted that by signing the retrospective CANME Services invoices as Acting General Secretary, he used his fiduciary position to give advantages to the Williamsons.
24.The second finding was that Peter Mylan may have breached ss 285(1), 286(1) and 287(1) of the FW(RO) Act in various fairly obvious ways, which counsel assisting set out.
25.There was a breach of s 285(1) for the following reasons. Peter Mylan failed to quarantine the affairs and records of the Union from interference from Michael Williamson. Indeed, Peter Mylan actively facilitated that interference. Peter Mylan continued to consult Michael Williamson and permit him to be involved in the affairs of the Union after serious criminal allegations of fraud had been made against Michael Williamson which had forced him to take leave during the police investigation. Peter Mylan’s conduct in continuing to consult and be associated with Michael Williamson was not commensurate with the degree of care and diligence a reasonable person would exercise if he or she were the officer of the organisation and held the same responsibilities. The same is true of Peter Mylan’s endeavours to thwart the Temby/Robertson inquiry.
26.There was a breach of s 286(1) because Peter Mylan admitted that he felt ‘uncomfortable’ about signing the bogus CANME invoices. That indicates a belief that his conduct was not in the best interests of the Union. Further, he did not sign those invoices for a proper purpose.
27.Section 287 was attracted because Peter Mylan used his position as Acting General Secretary to give advantages to Michael Williamson in his attempts to avoid scrutiny and cover up his corrupt conduct at the Union.[27]
28.Counsel for Peter Mylan submitted that these provisions could not apply. The first reason assigned was that s 283 provides that they only apply to the exercise of powers or duties of officers and employees of an organisation ‘related to the financial management of the organisation or branch’. Arguably falsification of the financial records of the organisation is part of its financial management. If not, this is a further illustration of the undesirable narrowness of s 283. The second reason assigned was that the organisation in which Peter Mylan was employed as Acting General Secretary was HSU NSW, an organisation registered under the Industrial Relations Act 1996 (NSW), not the FW(RO) Act, a federal statute.[28] If that submission is correct, there is a gap in the State law. But there are reasons for questioning its correctness. In the Federal Court of Australia, Buchanan J has held that while Peter Mylan was Deputy General Secretary and Acting Secretary of HSU NSW, a New South Wales union registered under the Industrial Relations Act 1996 (NSW), he held identical positions in the Health Services Union, a federal union registered as a federal organisation under the FW(RO) Act, the relevant branch being HSU East. The State union was responsible for Peter Mylan’s salary and benefits.[29] Whoever pays an employee’s salary and benefits is usually the employer. However, despite that, is a person who is an official in both a New South Wales union and a federal union is immunised from federal law merely because that person is employed by the New South Wales union?