Industrial Relations Commission of New South Wales in Court Session CITATION: Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145 INFORMANT Geoff Derrick PARTIES: DEFENDANT Australian and New Zealand Banking Group Limited FILE NUMBER(S): IRC 7170 of 2003 CORAM: Boland J CATCHWORDS: Occupational Health and Safety - Prosecution under section 8(1) of the Occupational Health and Safety Act - Guilty plea - Offence proven - Penalty imposed - Moiety - Whether registered organisation of employees entitled to a moiety of the fine - Court's discretion to grant a moiety - Whether discretion should be exercised in favour of granting a moiety to a registered organisation of employees where part of moiety is to be paid to employees placed at risk of injury - Moiety ordered Fines Act 1996 Fines and Penalties Act 1901 Industrial Relations Act 1996 Occupational Health and Safety Act 1983 LEGISLATION CITED: Occupational Health and Safety Act 2000 WorkCover Administration Act 1989 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Coombs v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56 Geoff Derrick v ANZ Group Limited [2005] NSWIRComm 59 CASES CITED: O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 Stephen George Kirkby v. A & M I Hanson Pty Limited (unreported, Matter No. CT1121 of 1993, 13 September 1994.) WorkCover Authority of NSW v Warrah Ridge Pastoral Co Pty Ltd (unreported, Matter No CT1109 of 1993, 23 September 1994) HEARING DATES: 04/18/2005 DATE OF JUDGMENT: 05/03/2005 INFORMANT Mr S M Whybrow of counsel Solicitor: Mr G Rees Gary Robb & Associates LEGAL REPRESENTATIVES: DEFENDANT Solicitor: Ms J Mansfield Blake Dawson Waldron JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Tuesday 3 May 2005 Matter No IRC 7170 of 2003 GEOFF DERRICK V ANZ GROUP LIMITED (NO 2) Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 145 1 In Geoff Derrick v ANZ Group Limited [2005] NSWIRComm 59 the Court entered a verdict of guilty and convicted the defendant of an offence under s 8(1) of the Occupational Health and Safety Act 2000. The defendant was fined an amount of $175,500 plus costs. 2 The informant, through oversight, sought no moiety of the fine pursuant to s 122 of the Fines Act 1996 and none was awarded. However, immediately following the pronouncement of the judgment and orders the prosecutor raised the question of a moiety and the Court agreed to hear the parties on that matter. 3 In support of the application for a moiety (one-half of the penalty) an affidavit of Mr Derrick was read. Omitting the formal parts, the affidavit was in the following terms: 1 I am the Secretary of the Finance Sector Union of Australia (NSW Branch) ("The FSU"), and industrial organisation of employees, members of which are concerned in the within matter and empowered under Section 106 of the Occupational Health & Safety Act 2000 to institute proceedings in the matter within. 2 I confirm that I was the informant in these proceedings against Australia & New Zealand Banking Group Limited. 3 I am aware that His Honour, Mr Justice Boland, handed down a decision in this matter on 3 March 2004 and amongst other orders fined the defendant an amount of $175,500.00 plus an order for costs. 4 I wish to seek a moiety being 50% of the penalty. 5 I personally undertake that any monies ordered to be paid to myself as informant in this matter (whether a full moiety or some other proportion of the fine imposed) will be fully remitted to the FSU. 6 The prosecution in this matter was brought on the authority of the Finance Sector Union NSW Branch following a committee of management meeting prior to instructing Gary Robb & Associates solicitors to commence proceedings on my behalf. 7 The FSU is committed to securing workplace safety for its members. Each official of the branch performs duties in relation to Occupational Health and Safety including providing direct assistance to workplace delegates and members and by conducting workplace inspections, interviewing members, conducting research as to specific occupational health and safety matters and providing written reports to workplace delegates on relevant occupational health and safety issues. Regular meetings with employees and employers to resolve workplace safety issues occur. 8 Our officers regularly liaise with WorkCover inspectors in relation to the resolution of safety and welfare issues that can not be satisfactorily resolved with employees. Suspected breaches of the Occupational Health & Safety Act 2000 are often investigated and often reported to WorkCover as occurred in this case. WorkCover were not prepared to take breach action under the Occupational Health & Safety Act 2000 which is the reason that I on behalf of the FSU undertook that action. It is the position of the branch executive and branch committee that if this Honourable Court were to order a moiety or some other proportion of the penalty imposed be paid to me as prosecutor, any such funds would be expended as follows: (i) One third will be paid to the particular members who were involved in the hold-up who have lost their common law entitlements. For some of the members named in the original information, the robberies the subject of the offence were the 3rd and 4th robberies these members had suffered in the space of nine months. (ii) One third will be paid for continuing occupational health and safety education campaigns, including educating organisers and delegates, improving the consultation process between members and employers, increased occupational health and safety training for official delegates and members and the development of publications covering policy and guidelines for the membership in relation to occupational health and safety issues. (iii) One third will be used for compliance and enforcement purposes pursuant to the Occupational Health and Safety Act 2000, including visiting workplaces, compiling reports and the like. 9 The FSU is committed to improving consultation between its officials, delegates, members and employers to improve workplace safety. 4 The legislative history of a moiety and the practice of this Court and its predecessors in relation to the granting of a moiety were comprehensively addressed by Bauer J in WorkCover Authority of NSW v Warrah Ridge Pastoral Co Pty Ltd (unreported, Matter No CT1109 of 1993, 23 September 1994). It is apparent from his Honour's analysis that the original purpose in providing the power to courts to grant a moiety of a fine was to encourage private citizens to prosecute or sue for breach of statutes by providing to the citizen/informer one-half of the penalty. This arose out of what his Honour considered to be "a cornerstone of British criminal law … that citizens have both an interest, obligation and right to enforce the criminal law." The original purpose may still have some relevance to prosecutions under the 2000 Act because, at least theoretically, a private citizen could prosecute provided he or she had the written consent of the Minister. 5 In Warrah Ridge the prosecutor was the WorkCover Authority and Bauer J had no difficulty in deciding to grant a moiety not only because of the practice that had developed in that respect but also for the reasons relied upon by Hungerford J in Stephen George Kirkby v. A. & M.I. Hanson Pty Limited (unreported, Matter No. CT1121 of 1993, 13 September 1994. In the latter judgment his Honour stated: [W]here a particular employer commits a breach of occupational health and safety legislation then that employer in recognition of the breach pays a premium in the form of a penalty. The WorkCover Authority has to self-fund its important functions, I emphasise as laid down in the statute, and consistently therewith I think the public policy so stated would be furthered by appropriating a penalty obtained at the instance of the WorkCover Authority by way of a moiety to it. A penalty fairly represents, in my view, a legitimate and valid source to permit the statutory functions of the WorkCover Authority to be carried out; it may not be properly described as a "windfall". 6 Both Hungerford J and Bauer J were concerned with the now repealed Fines and Penalties Act 1901 as it applied in June 1992 and August 1994 respectively. Section 5 of that Act provided: 5. (1) Whenever any fine penalty or forfeiture is imposed or authorised to be imposed by any Act such Act shall be taken to provide that the same when recovered shall be paid to His Majesty his Heirs and Successors for the public uses of this State and in support of the Government thereof to be applied in such manner as may from time to time be directed by any Act unless the Act imposing the fine penalty or forfeiture otherwise directs. (2) * * * * * (3) Where the Act imposing or authorising the imposition of a fine penalty or forfeiture makes no direction as to the application thereof the court before which such fine penalty or forfeiture is recovered may where the informer or other person prosecuting or suing for the same is not a member of the police force direct that such portion of the fine penalty or forfeiture as the Court thinks fit (but not exceeding a moiety thereof) shall be paid to the informer or other person prosecuting or suing for the same. 7 The equivalent provision of s 5(3) of the Fines and Penalties Act may be found in s 122 of the Fines Act, which provides: 122 Payment of share of fine to prosecutor (1) This section applies where: (a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and (b) the prosecutor is not a police officer. (2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor. (3) For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f). 8 Section 4(1)(e) refers to any witnesses' expenses payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer and s 4(1)(f) refers to any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer. 9 The essential difference between s 5(3) of the Fines and Penalties Act and s 122 of the Fines Act is that the earlier provision provided for a moiety - that is one-half - of the fine to be paid to the informer or other person prosecuting or suing for the same at the discretion of the court whereas the later provision provides for a portion of the fine or penalty, not exceeding one-half, to be paid to the prosecutor at the discretion of the court. 10 Section 8 of the Fines Act provides: 8 To whom fine payable (1) A fine imposed by any court is payable to the registrar of the court unless the court or the registrar of the court otherwise directs. (2) The payment may be lodged with the registrar or other officer of any court. 11 Warrah Ridge and Kirkby v Hanson involved offences under the Occupational Health and Safety Act 1983 whereas the present offence was committed under s 8(1) of the Occupational Health and Safety Act 2000. But this makes no material difference to what Hungerford J and Bauer J found to be the propriety of the Commission in Court Session in granting a moiety to the prosecutor where the prosecutor is the WorkCover Authority or an inspector of that Authority. As was the case under the 1983 Act, the 2000 Act makes no provision for the application of a penalty when recovered. Therefore, the Court may direct that such portion of the penalty (not exceeding one-half) is to be paid to the prosecutor. Moreover, although the relevant statute establishing the WorkCover Authority, and governing its operation, was the WorkCover Administration Act 1989 and is now the Workplace Injury Management and Workers Compensation Act 1998, it does not appear to me that the rationale that led Hungerford J and Bauer J to conclude that it was appropriate to continue the practice of granting a moiety to the Authority, has materially changed. 12 In the present proceedings, however, the prosecutor is not an inspector of the WorkCover Authority but rather the secretary of an industrial organisation of employees who was authorised, pursuant to s 106 of the Act, to institute proceedings against the defendant. Do different considerations apply to the exercise of the Court's discretion in relation to the granting of a moiety of the fine? 13 In Coombs v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56, Haylen J considered an application by a branch secretary of a federally registered union for a moiety of a fine. At [108]-[111] his Honour decided as follows: 108 It is quite understandable, as found by Bauer J [in Warrah Ridge ], that an inspector of the WorkCover Authority as prosecutor should normally be ordered to receive a moiety of any penalty imposed by the Court and that it would now be an exceptional case for another course to be taken. It is another matter, however, to suggest that the discretion left to the Court by s 122 of the Fines Act should be invariably exercised by granting a moiety and that some exceptional case would have to be established not to follow that course where the prosecutor is other than a WorkCover inspector. Section 122 no longer speaks of a moiety and in sub-section 2 grants a discretion to the Court to direct that such payment of penalty (not exceeding one-half) is to be paid to the prosecutor. It is interesting to note that in the Second Reading Speech regarding the 1933 amendment, the Fines and Penalties Act was altered so that the previous power of the Court to order half of the penalty or fine go to the informer was to be replaced by a provision where the matter would be left in the hands of the Magistrate "... who, if he sees fit, may make an order for the penalty or any part of the penalty up to one-half to go to the informer - that is the prosecutor, or he may make no order at all". In my view a discretion which must invariably be exercised in a particular manner strikes at the very heart of the discretion left to the Court: that is not to say that a Court would need good reason to depart from what had become its usual course, for instance, the granting of half of the penalty to a WorkCover inspector. 109 In the present proceedings, the prosecutor is the secretary of a branch of a federally registered union and has received authority personally to prosecute under s 48 by virtue of the written consent of the Minister. Mr Coombs' evidence is that the prosecution was brought "on behalf of" the MUA, meaning, it seems, that in applying to the Minister for authority to prosecute Mr Coombs did so in his capacity as branch secretary of the union and on the authority of the union. Indeed, early in the proceedings, Mr Coombs was cross-examined by the defendant and indicated that any costs ordered against the prosecutor would, in effect, be honoured by the MUA. 110 I accept Mr Coombs' evidence in relation to the union's interest in occupational health and safety matters and the fact that, from time to time, the union is involved through its officers in investigating safety breaches advising members in relation to such matters and preparing reports for the governing bodies of the union. That evidence did not attempt an approximate assessment of the time that may be taken by officers in performing such tasks, nor was there any detail given as to the occupational health and safety training undertaken by the union and at what cost. There does not seem to be any clearly delineated occupational health and safety budget in relation to union activities in this area and that fact was highlighted by Mr Coombs' inability to say what the branch executive would do with the funds if a moiety of the penalty was received. Importantly for my consideration, there was no undertaking that the penalty would be applied solely to either specific or general occupational health and safety objectives and activities within the union, together with an identification, with some precision, of those activities. This evidentiary position is to be contrasted with the position in O'Sullivan where the evidence apparently demonstrated the union's activity in relation to the prevention of injuries and the promotion of health and safety in the workplace and how the union had committed a significant amount of time and resources to that function. In addition, the acting general secretary gave evidence in relation to the manner in which any funds received by way of moiety would be dealt with by the union in relation to the maintenance and promotion of occupational health and safety at the workplace. 111 If the evidence is left in its present state, although I am satisfied that a portion of the penalty should be ordered to be paid to the prosecutor to pass on to the union, I would not be prepared to order that the maximum amount, or moiety, being one-half of the penalty, should be ordered to be paid to the prosecutor. As there remained an outstanding issue as to costs I thought it appropriate to give the prosecutor a further opportunity to address the state of the evidence on moiety in light of the issues raised by the Court. Mr Coombs accepted the Court's invitation and filed a further affidavit in which he outlined steps taken by the MUA in 2003 to obtain a grant of over $90,000 from the WorkCover Authority to undertake a programme to be called "Workplace Assist Programme 2003". This proposed project involved the assessment of training needs in occupational health and safety for MUA officials and employee representatives on worksite occupational health and safety committees and related solely to occupational health and safety matters. The union ultimately advised that it was unsuccessful in its application. Mr Coombs gave an undertaking that if a percentage or moiety of the penalty was granted to the prosecutor that the MUA would apply those funds for undertaking a project of a similar nature and in any event undertook that any part of the penalty granted by the Court would be used solely for occupational health and safety related purposes. In light of that undertaking, I am satisfied that it is appropriate to order that half the penalty be paid to the prosecutor in the same way as a moiety is granted to WorkCover inspectors. 14 It may be seen that upon being satisfied that the MUA would apply any moiety solely for occupational health and safety related purposes Haylen J was satisfied that it was appropriate to order that half of the penalty should "be paid to the prosecutor in the same way as a moiety is granted to WorkCover inspectors." 15 In O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) 2003) 128 IR 158 Walton J, Vice President considered whether the secretary of a registered organisation of employees fell within the scope of s 122 of the Fines Act and, if so, whether he should be paid a moiety of the fine imposed on the defendant. His Honour decided in the affirmative on both questions: 186 The PSA is an industrial organisation registered pursuant to s 220 of the Industrial Relations Act 1996. As such, the General Secretary of the PSA is authorised by s 48(1)(c) of the Act to initiate a prosecution under the Act. Thus, the informant O'Sullivan is a prosecutor for the purposes of these proceedings and is thereby a prosecutor for the purposes of the Fines Act 1996 as the Fines Act 1996 applies "where the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered". I am satisfied that the prosecutor falls within the scope of s 122(1)(b) of the Fines Act 1996, being a person who is not a police officer. 187 I do not accept the defendant's argument that the payment of a moiety is limited to statutory authorities such as the WorkCover Authority. There is no such statutory limitation imposed by the Fines Act 1996. 188 I reject the defendant's argument that it is not appropriate to order payment of a moiety to an individual in these circumstances. Mr O'Sullivan, in his capacity as General Secretary of the PSA, is authorised to prosecute breaches of the Act. This is what he has done in the present cases. Mr Hodgkinson for the defendant argued that money paid to the prosecutor "can never be received on behalf of the organisation because there is no power to make that order. The only power is to give it to Mr O'Sullivan. It may be that he determines that money should go to the PSA but that is not as a consequence of the order being made." I do not agree. There was adequate evidence presented at the hearing of these matters as to the prosecutor's authority to lay the charges by virtue of his office in the PSA, and that the rules of the organisation governed the receipt of any money by him. In my view, the evidence demonstrated that Mr O'Sullivan will make payment of any moiety of the fine to the PSA which is an organisation whose resources appear to have been expended in the bringing of this prosecution, and will be expended in the future in ensuring compliance with the Act. Further, I consider the PSA Rules (by their terms, by implication or by the duties residing in Mr O'Sullivan as an officer) are such as would require Mr O'Sullivan to pay the moiety to the organisation. … 194 Having regard to the decisions in Kirkby v A & M I Hanson and Warrah Ridge , and the established practice in this Court, I agree with the prosecutor's submission, that in the absence of any compelling reason not to order a moiety, or to limit the amount of any such moiety, the usual case is that the Court's discretion to order a moiety is exercised in favour of a prosecutor. I am satisfied by the evidence before me that an important function of the PSA is contributing to the prevention of injuries and promotion of health and safety in the workplace, and that the PSA commits a significant amount of time and resources to this function. Further, I accept the evidence of Mr Cahill, Acting General Secretary of the PSA, in relation to the manner in which any funds received by way of a moiety would be dealt with by the prosecutor, and in turn by the PSA in relation to the maintenance and promotion of occupational health and safety at the workplace. 195 In the circumstances, I am persuaded that a moiety should be ordered in these matters. 16 It may be seen that two important considerations in both Coombs and O'Sullivan were, firstly, whether the prosecutor in each case would pass on the moiety to the relevant Union and, secondly, the purpose for which the moiety would be used by the Union. As to the first consideration, Mr Derrick's evidence was that: I personally undertake that any monies ordered to be paid to myself as informant in this matter (whether a full moiety or some other proportion of the fine imposed) will be fully remitted to the FSU. 17 As to the second consideration, in both cases the moiety was to be applied for purposes related to occupational health and safety. In Coombs it was to be applied solely for that purpose. In O'Sullivan, Walton J was satisfied that the "grant of the moiety would further the objects of the Act and the maintenance of occupational health and safety at the workplace", although his Honour did not require to be satisfied the moiety would be used solely for occupational health and safety purposes. Indeed, the relevant evidence in the case, as described by his Honour at [39]-[40], was as follows: 39 Mr Docking tendered an affidavit of John Joseph Cahill, Acting General Secretary of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA"), which was admitted into evidence without objection. Mr Cahill gave evidence going to the issue of payment of a moiety to the prosecutor. His evidence was that: (a) He is Acting General Secretary of the PSA. The General Secretary, Mr O'Sullivan, who is the prosecutor in these matters, was on leave pending his retirement, and had recently suffered ill-health. (b) The PSA presently had approximately 42,000 members. (c) The PSA employed 26 Industrial Officers, 31 Organisers and 71 other staff in a variety of categories. (d) The PSA employed an Industrial Officer (Mr Terry Hannen) whose primary role was dealing with occupational health and safety matters, including (amongst other things) representing the PSA on two WorkCover Industry Reference Groups; acting as internal consultant to PSA industrial staff; providing direct assistance to PSA industrial staff and workplace delegates; liasing with WorkCover inspectors to resolve occupational health, safety and welfare issues; investigating suspected breaches of health and safety legislation in workplaces where PSA members were employed. Mr Hannen also conducted a two-day training course each month (and sometimes two per month) dealing specifically with occupational health and safety issues. He also conducted an occupational health, safety and welfare module in the PSA's introductory course for delegates. The PSA paid the travel and accommodation costs associated with PSA delegates travelling to attend such courses from outside Sydney. (e) The on-costs of employing Mr Hannen as of July 2003 were about $87,900, and the cost of conducting OH&S delegate courses between January 2002 and June 2003 was about $49,300. (f) A grant from the WorkCover Assist Program enabled the PSA to recruit a temporary OH&S Education Officer (Dr Pam Vievers) to design and conduct PSA membership training. Dr Vievers has designed an OH&S/Workers' Compensation Course for PSA members, and has delivered 12 such courses to PSA members since the beginning of 2003. The PSA may require the services of a permanent OH&S Education Officer, as it was under increasing demand to expand its training services. (g) If a moiety was granted "in favour of the office of General Secretary as a Prosecutor", he would remit those funds to the PSA to be dealt with in accordance with Rule 121 of the PSA Rules. 40 Rule 121 of the PSA Rules is in the following terms The funds of the Association shall be applied to the following purposes: (a) Defraying the costs of management of the Association. (b) Subscribing to any association or organisation with which the Association may, in accordance with these Rules, co-operate or affiliate. (c) Defraying the cost of publishing the Association Journal. (d) Defraying any expenses incurred in making or opposing any application to a Federal or State Board or Court of Arbitration or Industrial Appeal. (e) Making payments in connection with any matters prescribed by these Rules or affecting the general interests of members. (f) Paying such sums as may be determined by Central Council to a special fund or funds. (g) Acquiring by lease, purchase, donation, devise, bequest or otherwise any real or personal property necessary for the carrying out of any of the objects of the Association. (h) Aiding and encouraging members generally or particular groups of members in taking action directed to the improvement of salaries and working conditions. (i) For or in connection with any other lawful object or purpose authorised by Rules of the Association. 18 In Coombs, Haylen J stated that "although I am satisfied that a portion of the penalty should be ordered to be paid to the prosecutor to pass on to the union" his Honour was initially not prepared to order that the maximum amount, or moiety, being one-half of the penalty, should be ordered to be paid to the prosecutor. However, after receiving further evidence regarding the purpose to which a moiety would be put, namely, occupational health and safety, Haylen J accepted a moiety should be paid to the prosecutor. His Honour's initial reluctance to grant a moiety may be explained by Mr Coomb's inability to say what the branch executive would do with the funds if a moiety of the penalty were received. The fact that Haylen J was later satisfied that the moiety would be used solely for occupational health and safety purposes is not a basis for concluding that Coombs is authority for the proposition that a moiety may only be used for such purposes. 19 In the present proceedings, the evidence of Mr Derrick was that two-thirds of the moiety would be dedicated to what were, unequivocally, occupational health and safety purposes and on the authorities there could be no objection in that regard. However, it was also Mr Derrick's evidence that one-third of the moiety would be used to pay the particular members of the FSU who were involved in the hold-ups who had "lost their common law entitlements." The defendant submitted that this was not a proper purpose of a moiety and, therefore, it followed no moiety should be granted to the prosecutor. 20 It is not an express requirement under the 2000 Act (if it were s 122 of the Fines Act would not apply), and it does not seem to me that it is an implicit requirement, that where the Court directs a portion of the fine be paid to the prosecutor it has to be satisfied that the purpose for which that portion will be used will be related to occupational health and safety, although for the reasons expressed in the authorities I have referred to, I consider if that is to be the purpose, no issue should arise as to whether the Court should exercise its discretion to grant the moiety or part of it. 21 Secondly, there is nothing in the historical rationale for granting a moiety that suggests that this Court must be satisfied that the prosecutor or informant will use it for a purpose of which the Court approves. Of course, the court before which proceedings are taken to recover any fine or other penalty retains a discretion to direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor. There is not much utility in speculating on the circumstances in which a court may not direct a portion of the fine to be paid to a prosecutor, but if the prosecutor is the secretary of an industrial organisation of employees and the evidence is that the portion of the fine is to be fully remitted to the organisation and then used for a lawful purpose or purposes in accordance with the requirements of the organisation's registered rules, whether it be directly for occupational health and safety purposes or not, that does not, in my opinion, constitute a proper basis for declining to grant the moiety or part of it. In this respect I note that r 4 - Objects of the FSU's registered rules provide: The objects of the combination of bank officers under these rules shall be: … (iii) to carry out in New South Wales all the functions and obligations of a trade union and industrial union and to enjoy and use all the rights and privileges thereof; (iv) to protect and advance the rights and interests of members in all matters relating to their employment; … (xi) to establish funds and to purchase, own, and control property, both real and personal, for the furtherance of the objects of the Union; (xii) to establish funds or trusts for the benefit of members, ex-members, employees or ex-employees of the Union, and to grant pensions and allowances and pay premiums on assurance for these purposes; … 22 As I have already stated, Mr Derrick's evidence was that one-third of the moiety would be used to pay the particular members of the FSU who were involved in the hold-ups who had "lost their common law entitlements." The reference to loss of entitlements appears to reflect - although this was not entirely clear - a view held by the FSU that their members who were subject to the trauma of the hold ups should be entitled to some form of compensation but that the requirements of the Workers Compensation Act 1987 in relation to meeting the minimum threshold i.e., the degree of permanent impairment resulting from psychological injury must be at least 15 per cent, were too stringent and could not be satisfied. 23 It is not for this Court to approve or disapprove of the FSU's motivation for making the payment it proposes to its members if the Union so chooses, provided the Court can be reasonably satisfied that such a payment is within the power of the Union to make in accordance with its registered rules. Having perused those rules, especially r 4 - Objects, I can see nothing to suggest a payment of the sort described by Mr Derrick would be inconsistent with the rules. Moreover, in considering whether I should grant a moiety of the fine, it seems to me that it may be said that, in any event, the moiety is to be used for occupational health and safety purposes 24 I note that s 403 of the Industrial Relations Act 1996 provides as follows: 403 Payment of penalties (1) If any penalty for an offence has been imposed under this Act in proceedings instituted by an officer of an industrial organisation, the court concerned may order that the penalty, or part of the penalty, be paid to the Industrial Registrar for payment to the industrial organisation. (2) In any other case, any penalty recovered is to be paid into the Consolidated Fund or as otherwise provided by law. 25 I know of no rule or practice in this Court or in the Chief Industrial Magistrate's Court whereby an industrial organisation is required to indicate the purpose to which any penalty paid to it might be put as the basis for the exercise of the Court's discretion. 26 Having regard to all of the foregoing I have decided to direct that one-half of the penalty in this case, that is, one-half of $175,500 shall be paid to the prosecutor and I so order. ______________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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