CHAPTER 7.3

DONATIONS & EBAS

Subject Paragraph

A – INTRODUCTION 1

B – DONATIONS FROM JIANQIU ZHANG’S GROUP OF COMPANIES

5

Jianqiu Zhang’s companies do not have a CFMEU EBA 7

Jianqiu Zhang’s companies: donations to the CFMEU 19

CFMEU NSW’s accounting records 27

Conclusions 30

C – CHARITABLE FUNDRAISING ACT 1991 (NSW) 35

A preliminary objection 36

Summary of the law 39

Application of the law to the facts 41

A – INTRODUCTION

1. This Chapter deals with two interrelated issues concerning the

Construction, Forestry, Mining and Energy Union (CFMEU),

Construction and General Division, New South Wales Divisional

Branch (CFMEU NSW). Those issues are:

(a) whether the CFMEU NSW, under the leadership of the

current Secretary, Brian Parker, improperly obtained and/or

managed donations from Jianqiu Zhang and his group of

companies; and

(b) whether the CFMEU, Brian Parker, and Yulei Zhou, an

organiser with the CFMEU NSW, may have committed

criminal offences against the Charitable Fundraising Act

1991 (NSW).

2. The submissions of counsel assisting set out below are accepted.

3. In summary, for the reasons that follow, each of the CFMEU, Brian

Parker and Yulei Zhou may have committed a number of criminal

offences against the Charitable Fundraising Act 1991 (NSW).

4. This Report and all relevant materials have been referred to the

Minister administering the Charitable Fundraising Act 1991 (NSW),

being the Minister for Innovation and Better Regulation, in order that

consideration be given to conducting an inquiry pursuant to Division 1

of Part 3 of that Act into all of the CFMEU NSW’s practices

concerning charitable fundraising.

B – DONATIONS FROM JIANQIU ZHANG’S GROUP OF

COMPANIES

5. Jianqiu Zhang is currently a director of more than forty Australian

companies.1 A number of these companies work cooperatively within

the construction and development sectors, and are referred to as

‘JQZ’.2 The JQZ website3 describes past and current developments

with an estimated total value of more than $2 billion.4 JQZ is

described as ‘a successful Sydney based property development

company with [its] own in-house building business established solely

to undertake [its] construction works’. It has ‘grown substantially’

since its inception to become ‘one of New South Wales’ most

prestigious Australian-Chinese based providers of development and

construction services’.

6. The description on the website accords with descriptions given by

witnesses in their testimony to the Commission. Brian Parker stated

that Jianqiu Zhang was ‘getting very large these days. He’s starting

[…] building units’.5 Nick Cai, himself the director of a successful

business supplying plasterboard and other building materials, stated

that Jianqiu Zhang has ‘a lot of big job sites’ and ‘he’s a quite well-

1 CFMEU MFI-8, 1/10/15, pp 13-30. These include SPC Building Constructions Pty Ltd, Concourse Constructions Pty Ltd, JQZ Holdings Pty Ltd (formerly Tong International Pty Ltd), JQZ Group Pty Ltd and Southpac Constructions Pty Ltd. 2 CFMEU MFI-8, 1/10/15, pp 1, 3, 4, 7, 12. 3 CFMEU MFI-8, 1/10/15, p 1. Note: website reproduced as at 27/9/15.4 CFMEU MFI-8, 1/10/15, p 3 and the webpages cited therein. 5 Brian Parker, 1/10/15, T:78.37-38.

known person in the society’.6 Nick Cai further stated ‘[Jianqiu

Zhang] is a – not just a developer, he is a big developer, he’s probably

the biggest now so far on the market in the Chinese developer […]

probably of whole Australia’.7

Jianqiu Zhang’s companies do not have a CFMEU EBA

7. None of Jianqiu Zhang’s companies are party to a CFMEU NSW

enterprise agreement/enterprise bargaining agreement (EBA). Jianqiu

Zhang gave evidence to the effect that neither Brian Parker nor Yulei

Zhou nor anyone else from the building union had discussed with him

the idea of any his companies entering into an EBA.8

8. When questioned about the topic, Brian Parker stated that he would not

even enter discussions with Jianqiu Zhang about whether or not he

should be entering into an EBA because ‘I think he’s got about three

employees. The bulk of his employees on his sites are all sub-

contractors’.9 He further stated: ‘Why would I want to enter into an

EBA with Mr Zhang? […] When he only has three employees. If he

builds his employees up further, we would enter into an EBA with

him.’10 Whilst at one point Brian Parker also conceded that the

CFMEU NSW does enter into EBAs with builders with Jianqiu

6 CFMEU MFI-13, 2/10/15, p 44.14-18.7 CFMEU MFI-13, 2/10/15, p 45.11-17.8 CFMEU MFI-9, 1/10/15, pp 15.5-16.9.9 Brian Parker, 1/10/15, T:78.43-45.10 Brian Parker, 1/10/15, T:78.47-79.4.

Zhang’s type of business, he then reiterated ‘the fact of the matter is he

doesn’t employ a lot of labour’.11

9. Yulei Zhou provided a similar reason for not having spoken to Jianqiu

Zhang about whether or not his companies should enter an EBA with

the CFMEU. He stated: ‘I think in terms of putting in place an

enterprise bargaining agreement, it does require a large number of

workers. Say, for instance, for gyprockers, you would be looking at 10,

20 or 30.’12 He maintained that apart from the managers, supervisors

or work leaders, there were not many labourers or ordinary workers

directly employed by Jianqiu Zhang’s companies, and that workers he

spoke with told him they worked under different contractors.13

10. Counsel assisting submitted that contrary to the unequivocal statements

of Brian Parker and Yulei Zhou, the companies in question appear to

have had significantly more employees on various sites during the

relevant period.

11. In support of this submission, counsel assisting relied on a bundle

documents produced to the Commission by JQZ Holdings Pty Limited

(JQZ Holdings) and related entities after the public hearing in relation

to this case study in October 2015. Those documents disclosed that

Southpac Constructions Pty Ltd (Southpac), SPC Building

Constructions Pty Ltd (SPC Building), Concourse Constructions Pty

Limited (Concourse) and JQZ Group Pty Ltd each had a number of

employees, whose arrangements are discussed in further detail below.14 11 Brian Parker, 1/10/15, T: 79.8-9.12 Yulei Zhou, 1/10/15, T:31.27-44.13 Yulei Zhou, 1/10/15, T:32.32-42.14 CFMEU MFI-17, 20/10/15.

The bundle of documents produced by JQZ Holdings and related

entities will hereafter be referred to as the JQZ Employee Records.

12. Brian Parker submitted that it would be unsafe to rely on those records,

because they were not source records and were not explored in

evidence, let alone put to Brian Parker or Yulei Zhou.15 These points

have no force. The records are extracts from the accounting records of

the respective companies produced by those companies. Further, there

was no need to put the documents to Brian Parker or Yulei Zhou in

evidence. There was no point in doing so. Inevitably they would have

denied knowledge of them.

13. The records of two of the companies produced as part of the JQZ

Employee Records – JQZ Group Pty Ltd and Tong International Pty

Ltd16 – suggest that those two entities primarily employ staff in office

and project manager roles.

14. The JQZ Employee Records show that at least three companies of

which Jianqiu Zhang was a director each employed numerous workers

who would apparently have been eligible for membership of the

CFMEU; namely Southpac,17 SPC Building18 and Concourse.19

Cumulatively, the payroll activity summaries for these companies list

just over 100 employees and their employment details include job titles

such as ‘labourer’, ‘hoist operator’, ‘crane driver’ and ‘forklift driver’.

15 Submissions of Brian Parker, 28/10/15, paras 21-25.16 Tong International Pty Ltd is now registered as JQZ Holdings Pty Limited (see CFMEU MFI-8, 1/10/15, p 38), but it still appears to keep some records under its former name.17 CFMEU MFI-17, 20/10/15, pp 1-13.18 CFMEU MFI-17, 20/10/15, pp 14-35.19 CFMEU MFI-17, 20/10/15, pp 36-41.

Some of the workers were employed for extremely short periods of

time. However, some were not. Counsel assisting was correct to

submit that the records are clearly inconsistent with Brian Parker’s

repeated assertion that Jianqiu Zhang only had around ‘three’

employees.20

15. For example, the payroll records for just one of these companies, SPC

Building, lists 58 employees who had commenced since March 2012.21

Of those, 38 were casually employed.22 A number of these employees

appear to have worked for very short periods of time. However, of the

people who worked for the company for a significant period

(approximately 3 months or more), a number were paid less than the

hourly rate which was provided for in CFMEU NSW EBAs signed by

an unrelated company (Foxville Projects Group (NSW) Pty Ltd

(Foxville)).23 Between February and October 2014 one casual

labourer was employed by SPC Building with an hourly rate of

$18.31.24 Under a CFMEU EBA signed by Foxville, the most junior

category of construction worker (CW) appears to have been entitled to

be paid an hourly rate of between $26.67 and $27.20, together with

other entitlements, during the same period of time.25 This was not an

isolated example from SPC Building.26 Other casual labourers have

been paid as little as $17 per hour by SPC Building. These included

20 Brian Parker, 1/10/15, T:78.43-44, 79.3, 80.27-29.21 CFMEU MFI-17, 20/10/15, pp 14-35.22 CFMEU MFI-17, 20/10/15, pp 14-26.23 CFMEU MFI-1, 1/10/15, Vol 3, pp 556-849.24 CFMEU MFI-17, 20/10/15, p 16.25 CFMEU MFI-1, 1/10/15, p 639.26 CFMEU MFI-17, 20/10/15, pp 14, 17, 18, 20-22, 25.

one who was employed between September 2012 and January 2013,27

at which time the Foxville EBA would apparently have entitled the

most junior category of CW to be paid between $25.08 and $25.61 per

hour.28

16. Similar illustrations appear in the documents regarding Southpac and

Concourse. For example, one casual labourer was employed by

Southpac on an hourly rate of $18 for a period of approximately seven

months between 2012 and 2013.29 Under a contemporaneous CFMEU

EBA signed by Foxville, the most junior category of construction

worker (CW1) apparently would have been entitled to be paid an

hourly rate of between $25.08 and $26.14, together with other

entitlements, during the same period of time.30 Similarly, a forklift

driver who is still employed by Concourse has an hourly rate of $22.31

Pursuant to a CFMEU EBA recently signed by Foxville, some forklift

operators would be entitled to hourly rates as CW5, in circumstances

where the applicable hourly rate for an employee of that level would be

between $33.70 and $36.29 for the period in question.32 Incidentally,

this Foxville EBA was signed by Brian Parker.33

17. In a statement published on the CFMEU website dated 27 January

2014, Brian Parker is quoted as having said:34

27 CFMEU MFI-17, 20/10/15, p 18.28 CFMEU MFI-1, 1/10/15, p 638.29 CFMEU MFI-17, 20/10/15, p 5.30 CFMEU MFI-1, 1/10/15, p 638.31 CFMEU MFI-17, 20/10/15, p 36.32 CFMEU MFI-1, 1/10/15, pp 698, 700, 761.33 CFMEU MFI-1, 1/10/15, p 696.34 Parker MFI-1, 18/6/15, Vol 7, p 1563A.

The CFMEU represents the interests of workers in the construction industry and we strive to attain the best wages and conditions for them.

18. Counsel assisting submitted that these facts raise two questions. Why

did Jianqiu Zhang’s group of companies have no CFMEU EBA? Why,

in these circumstances, have Jianqiu Zhang’s companies made a large

number of donations to the union?

Jianqiu Zhang’s companies: donations to the CFMEU

19. In respect of that second question, the evidence showed that some of

Jianqiu Zhang’s companies made a number of donations to the

CFMEU NSW, or to organisations or people suggested by officers of

the CFMEU NSW, between April 2011 and April 2015.35 The

donations include:

(a) $2,200 on 1 April 2011 by Southpac, which was described on

the CFMEU NSW receipt as being for ‘Safety Industry

Dinner 11 10 x tickets’;

(b) $3,000 on 19 September 2012 by Southpac, which was

described on the CFMEU NSW receipt as being for

‘Bankstown Fire Tragedy Donation’;

(c) $5,000 on 19 October 2012 by Southpac, which was

described on the CFMEU NSW receipt as ‘Picnic Donation’,

with the original word ‘membershi’ (sic) crossed out;

35 CFMEU MFI-8, 1/10/15, pp 68-87.

(d) $1,500 on 7 December 2012 by Southpac, which was

described on the CFMEU NSW receipt as being for ‘Fighting

Funds Donation’;

(e) $30,000 on 14 March 2013 by Southpac, which was described

on the CFMEU NSW receipt as being for ‘Fighting Fund

Donation’;

(f) $2,310 on 9 April 2013 by SPC Building, which was

described on the invoice as being for ‘1 x Table for 10 Safety

Dinner 2013’;

(g) $12,000 on 26 August 2013 by SPC Building, which was

described on a CFMEU NSW tax invoice as being for ‘2013

picnic sponsorship’;

(h) $2,000 on 13 December by SPC Building, which was

described on the CFMEU NSW receipt as being for ‘Fighting

Fund Donations’;

(i) $30,000 on 13 December 2013 by SPC Building, which was

described on the CFMEU NSW receipt as being for ‘Fighting

Fund Donation’;

(j) $10,000 on 25 August 2014 by SPC Building, which was

described on the CFMEU NSW receipt as ‘Friends of Sinn

Féin Donation’; a tax invoice issued by Cairde Sinn Féin

Australia describes the donation as ‘Uniting Ireland: Sinn

Féin Australian Speaking Tour 2014 with Mary Lou

McDonald TD and Francie Molloy MP, Contribution to tour

travel costs’; and

(k) $20,000 on 8 December 2014 by SPC Building, which was

described on a CFMEU NSW tax invoice as ‘being for 2014

Industry Picnic Sponsorship’.

20. Jianqiu Zhang’s evidence in relation to these donations was vague in

every respect. In part, that vagueness may have resulted from the fact

that his evidence was given through an interpreter and it was apparent

from his demeanour and the way he answered questions that he spoke

little English. Jianqiu Zhang and other witnesses gave evidence that he

only spoke with representatives from the CFMEU NSW other than

Yulei Zhou through an interpreter – either Yulei Zhou or someone

whom Jianqiu Zhang arranged himself.36 But even accounting for

possible language difficulties, Jianqui Zhang could remember very

little about why he had given a considerable number of donations to

the union.

21. When asked why he had given donations to the CFMEU NSW, Jianqiu

Zhang first stated that he could not remember why he had done so, but

he remembered participating in some events and ‘donating $1,000,

$2,000, something like that’.37 When asked if he had ever donated an

amount of $30,000 to the building union he stated he could not really

remember.38 When shown documents evidencing the donations from

36 CFMEU MFI-9, 1/10/15, p 12.29-32; Yulei Zhou, 1/10/15, T:22.35-37; Brian Parker, 2/10/15, T:92.33-34, 99.45-47.37 CFMEU MFI-9, 1/10/15, p 16.15-19.38 CFMEU MFI-9, 1/10/15, p 16.45-47.

his companies he still could not remember what the payments were

for.39

22. When Jianqiu Zhang was asked about a donation of $30,000 to the

fighting fund on 14 March 2013 he stated ‘No, I don’t remember

anything. I know that this is for the Union, but as to what purpose or

to what division of the Union, I really have no idea.’40 Jianqiu Zhang

stated he had no idea what ‘Fighting Fund’ meant.41 When asked

whether he expected any benefit or privilege or favour from the Union

in return for making the donations, he stated: ‘The only thing we need

is the important regulations and safety concerns, and the Union will do

– will perform its duty to help us in this regard, and what they do

exactly is not my concern and I do not know anything about.’42

23. As to the donation to Sinn Féin for $10,000, Jianqiu Zhang stated he

had no idea who Sinn Féin were, and could not remember why his

company paid the money.43

24. Much of Jianqiu Zhang’s evidence is not believable.

25. Yulei Zhou gave the following evidence about the donations that he

collected:

39 CFMEU MFI-9, 1/10/15, p 17.20-18.2.40 CFMEU MFI-9, 1/10/15, p 18.37-42.41 CFMEU MFI-9, 1/10/15, p 19.3-17.42 CFMEU MFI-9, 1/10/15, p 19.26-32.43 CFMEU MFI-9, 1/10/15, p 20.8-20.

(a) He collected the $3,000 donation on 19 September 2012 for

the ‘Bankstown Fire Tragedy’ from Jianqiu Zhang.44 His

evidence was to the effect that the donation was to assist

overseas Chinese students injured in a unit fire in Bankstown.

(b) He collected the $1,500 ‘Fighting Funds’ donation on 7

December 2012 from Jianqiu Zhang. He could not recall the

purpose of the donation.45

(c) He collected the $30,000 ‘Fighting Fund’ donation on 14

March 2013 from Jianqiu Zhang.46 He could not recall the

purpose of the donation, only that he thought he was asked to

seek a donation from his ‘leaders’.47

(d) He collected a $30,000 ‘Fighting Fund’ and $2,000 ‘Fighting

Fund’ donation on 13 December 2013 from Jianqiu Zhang.

His evidence was to the effect that the $2,000 donation was a

Picnic Day donation and the $30,000 donation was for a

safety campaign in relation a crane tower.48

(e) He also collected $10,000 from Jianqiu Zhang on 25 August

2014 for ‘Friends of Sinn Féin’. Yulei Zhou said that ‘[t]his

was something that I did upon request of my Secretary and I

went and collected the – collected it’.49

44 Yulei Zhou, 1/10/15, T:39.33-40.16.45 Yulei Zhou, 1/10/15, T:40.44-41.20.46 Yulei Zhou, 1/10/15, T:41.26-42.30.47 Yulei Zhou, 1/10/15, T:41.33-46.48 Yulei Zhou, 1/10/15, T:43.37-48.22.49 Yulei Zhou, 1/10/15, T:43.27-30.

26. Brian Parker’s evidence was that from the first time he ever met him,

Jianqiu Zhang ‘always said that, you know, “If the Union requires me

to make a donation to assist you with any issue that you think is going

to help the industry, well, I will.”’50 When asked why Jianqiu Zhang

made donations in the realm of $30,000, Brian Parker suggested that he

had done so because he wanted to contribute to decent safety in the

industry.51 In relation to the two $30,000 donations made by Jianqiu

Zhang, Brian Parker’s evidence was to the effect that:

(a) the $30,000 donation on 14 March 2013 was for the purpose

of employing a person to assist in improving crane safety and

in educating and raising awareness about crane safety issues

at a time when there was a problem in the industry concerning

crane safety;52 and

(b) the $30,000 donation on 13 December 2013 was for the

purpose of raising funds for Mates in Construction, which is

an organisation directed towards suicide prevention in the

construction industry.53

CFMEU NSW’s accounting records

27. More light is shone on the purpose of some of the donations by the

CFMEU NSW’s general ledgers.54

50 Brian Parker, 1/10/15, T:85.19-26.51 Brian Parker, 1/10/15, T:87.27-33.52 Brian Parker, 2/10/15, T:91.31-93.11, 94.12-15.53 Brian Parker, 2/10/15, T:90.14-35, 94.12-15.54 CFMEU MFI-16, 20/10/15, pp 13-32.

28. Each of the donations was deposited in the CFMEU NSW’s ‘Trading

Cheque Account’. It is apparent from a comparison between the

general ledger and bank statements that this account is an account with

the Commonwealth Bank of Australia with account number 06 2194

10127561. This is the union’s general trading account. Items of

income deriving from a range of sources of income are deposited into

it. Wages and a range of expenses are paid out of it.

29. In relation to each of the $30,000 donations about which Yulei Zhou

and Brian Parker gave evidence:

(a) As to the first amount of $30,000, the ledger records a deposit

of $30,000 on 20 March 2013 to the Trading Cheque Account

with details of ‘SOUTHPAC MIC’. The inference is that this

is the donation for Mates in Construction which Brian Parker

was referring to and not the December 2013 donation as he

thought. The deposit is recorded as a credit to the ‘Contra –

General’ ledger account. That ledger account also appears to

reflect a number of other donations for Mates in Construction

around March 2013 and July 2013, totalling $51,300. There

is a debit to the ‘Contra – General’ ledger account recorded

on 31 July 2013 for $6,709.09 apparently for a ‘TRADING

MIC DINNER’ and a debit on 13 May 2014 of $44,590.91

with the detail ‘MIC’, which together total $51,300.55

(b) As to the second amount of $30,000, the ledger account

records a deposit of $30,000 on 16 December 2013 to the

55 CFMEU MFI-16, 20/10/15, pp 5, 8.

Trading Cheque Account with details ‘SPC BUILDING’.56

The deposit is recorded as a credit to the ‘CFMEU Fighting

Fund’ general ledger account. There is no other obviously

relevant ledger entry for expenditure in relation to crane

safety programs.

Conclusions

30. Counsel assisting submitted that the evidence supported the conclusion

that some of the donations made by Jianqiu Zhang were solicited and

used for a legitimate purpose. That submission, which was not

challenged, is accepted.

31. Counsel assisting went on to submit that it was an available inference

from the circumstances surrounding the making of other payments by

Jianqiu Zhang that the payments were made in return for the CFMEU

NSW agreeing not to seek to enter into EBAs with Jianqiu Zhang’s

companies. It was submitted that it was somewhat extraordinary that

Jianqiu Zhang would have made a $10,000 donation to the ‘Friends of

Sinn Féin’ in circumstances where he did not know who Sinn Féin

were and Yulei Zhou said he was simply following Brian Parker’s

orders in obtaining the donation. However, on the state of the current

evidence, it was not possible to exclude the possibility that Jianqiu

Zhang made the donations voluntarily and without any intention to

influence or seek to influence an officer of the CFMEU NSW to show

him, or his companies, favour.

56 CFMEU MFI-16, 20/10/15, p 25.

32. Brian Parker made a number of submissions devoted to the proposition

that the Commission should not draw any adverse inferences, let alone

make any adverse findings, against the union, let alone himself, in

relation to their dealing with Jianqiu Zhang.57

33. Brian Parker also submitted that nothing could be taken from the

payment to the Friends of Sinn Féin and that it might have been to

assist the union in the industry or in relation to safety regulations or

concerns.58 Counsel assisting observed that that submission is, to put it

nicely, a very courageous one.

34. However, it is unnecessary to deal with these submissions at length.

On the material, the inference raised by counsel assisting is a possible

one. But there is insufficient evidence to say anything more definitive

one way or another.

C – CHARITABLE FUNDRAISING ACT 1991 (NSW)

35. The evidence also raises the question whether each of the CFMEU,

Brian Parker and Yulei Zhou may have contravened the Charitable

Fundraising Act 1991 (NSW).

A preliminary objection

36. Written submissions filed on behalf of the CFMEU and Yulei Zhou

complained it would be unfair to make any findings about

contraventions by Brian Parker and Yulei Zhou of the Charitable

57 Submissions of Brian Parker, 28/10/15, paras 3-25.58 Submissions of Brian Parker, 28/10/15, para 16.

Fundraising Act 1991 (NSW). The unfairness was apparently said to

arise because counsel assisting did not mention the Charitable

Fundraising Act 1991 (NSW) in opening, because it was not put to

Brian Parker that he or the union had contravened that Act and because

it was not put to Yulei Zhou that he had contravened the Act.59

37. Brian Parker took the same point in his written submissions.60

38. These objections are unsustainable. Even in adversarial litigation

where the ‘rule in Browne v Dunn’ is strictly applied, there is no

requirement to put a legal conclusion to a witness for comment. Here,

the evidence touching on possible contraventions of the Charitable

Fundraising Act 1991 (NSW) fell from the witnesses’s own mouths in

the course of their explanations of certain donations. All affected

persons were on notice that those donations would be investigated

during the hearing. The response of the CFMEU and of Brian Parker

to the submissions of counsel assisting concerning the Charitable

Fundraising Act 1991 (NSW) have not endeavoured to advance any

argument as to why they have not, or even may not have, contravened

the Charitable Fundraising Act 1991 (NSW).

Summary of the law

39. The objects of the Charitable Fundraising Act 1991 (NSW) are to

promote proper and efficient management and administration of

fundraising appeals for charitable purposes, to ensure proper keeping

and auditing of accounts in connection with such appeals, and to 59 Submissions of the CFMEU, 29/10/15, pp 47, 49, paras 6, 16.60 Submissions of Brian Parker, 28/10/15, para 26.

prevent deception of members of the public who desire to support

worthy causes.61

40. In summary, the Charitable Fundraising Act 1991 (NSW) operates as

follows:

(a) Section 9 provides that a person who conducts a ‘fundraising

appeal’ commits an offence unless the person is:

(i) the holder of an authority authorising the person to

conduct the appeal;

(ii) a member, employee or agent of a person or

organisation authorised to conduct the appeal; or

(iii) authorised to conduct the appeal without an

authority.

A person conducts a fundraising appeal if the person

organises the appeal.62 The Charitable Fundraising

Regulation 2015 (NSW), and its predecessor the Charitable

Fundraising Regulation 2008 (NSW), exempt certain

organisations and fundraising activities from the requirement

to hold an authority.

(b) A person who participates in a fundraising appeal which the

person knows, or could reasonably be expected to know, is

61 Charitable Fundraising Act 1991 (NSW), s 3.62 Charitable Fundraising Act 1991 (NSW), s 6.

being conducted unlawfully commits an offence.63 A person

participates in a fundraising appeal if the person solicits or

receives money in the course of an appeal, or assists in

conducting the appeal.64

(c) Subject to the terms of an authority, all monies collected in a

fundraising appeal must be paid immediately into an account

with a bank or authorised deposit taking institution. The

account must consist only of monies raised in the fundraising

appeal, or in other such appeals conducted by the same

persons.65 A person conducting a fundraising appeal, or any

member of the governing body of an organisation on whose

behalf the appeal is conducted who by any act or omission is

in any way concerned in a contravention of these

requirements commits an offence, punishable by a fine of

50 penalty units or 6 months imprisonment or both.66

(d) The Charitable Fundraising Act 1991 (NSW) imposes a

number of accounting requirements in respect of monies

collected in fundraising appeals.67

(e) A ‘fundraising appeal’ means the soliciting or receiving of

money, property or other benefit by any person, if in the

course of or before such soliciting or receiving, the person

represents that the purpose of that soliciting or receiving is or 63 Charitable Fundraising Act 1991 (NSW), s 10.64 Charitable Fundraising Act 1991 (NSW), s 6.65 Charitable Fundraising Act 1991 (NSW), s 20(6).66 Charitable Fundraising Act 1991 (NSW), s 20(7).67 Charitable Fundraising Act 1991 (NSW), ss 22-24.

includes a charitable purpose.68 A ‘charitable purpose’

includes any benevolent, philanthropic or patriotic purpose.69

(f) Certain fundraising activities do not constitute a fundraising

appeal.70 In addition, the Charitable Fundraising Regulation

2015 (NSW), and its predecessor the Charitable Fundraising

Regulation 2008 (NSW), exempt certain fundraising activities

from the definition of fundraising appeal.

Application of the law to the facts

41. A search of the public register kept by NSW Fair Trading discloses

that the CFMEU NSW does not have an authority under the Act. Nor

does it appear that the CFMEU NSW is generally exempt from the

requirement to hold an authority.

42. At least the following donations collected by Yulei Zhou would be

donations collected in connection with a ‘fundraising appeal’ within

the meaning of the Act:

(a) the $3,000 donation collected for the ‘Bankstown Fire

Tragedy’;71

(b) the $30,000 donation collected for Mates in Construction; and

68 Charitable Fundraising Act 1991 (NSW), s 5.69 Charitable Fundraising Act 1991 (NSW), s 4.70 Charitable Fundraising Act 1991 (NSW), s 5(3)71 It should be noted that the union’s ledgers suggests that a number of such donations were solicited from a number of persons: see CFMEU MFI-16, 20/10/15, p 4.

(c) the $30,000 donation apparently collected for a crane safety

campaign for the benefit of the construction industry.

43. On each occasion an offence may have been committed.

44. The absence of an authority under the Charitable Fundraising Act

1991 (NSW) raises one problem. The CFMEU NSW’s treatment of

the donations raises another. That treatment has not been in

accordance with the Act. Even if Yulei Zhou was collecting the

donations in accordance with an authority held by the union, or by

another organisation such as Mates in Construction (which does hold a

current authority under the Charitable Fundraising Act 1991 (NSW)),

the monies should not have been deposited into the union’s general

trading account. The Charitable Fundraising Act 1991 (NSW)

requires such monies to be paid into an account containing only monies

raised from one or more fundraising appeals.

45. The CFMEU submitted that such contraventions would be ‘technical

contraventions of inadvertence’ which ‘pale’ against the merits of the

raising funds for three particular charitable purposes.72 Counsel

assisting contended that the submission is nonsense. It is certainly not

acceptable. The whole point of the legislation is to regulate

fundraising for charitable purposes. The merit or otherwise of the

recipient of the funds is no answer to a breach of the law.

46. Brian Parker submitted that the Commission should not make any

findings of contravention or make findings by reference to

72 Submissions of the CFMEU, 29/10/15, p 49, para 17.

possibilities.73 The approach taken to findings in relation to criminal

guilt were considered in the Interim Report, and are restated in

Volume 1 of this Report.

47. On the material available to the Commission, each of the CFMEU

NSW, Brian Parker and Yulei Zhou may have committed various

offences against the Charitable Fundraising Act 1991 (NSW):

(a) The CFMEU NSW may have conducted a fundraising appeal

in relation to the Bankstown Fire Tragedy, the appeal for

Mates in Construction and the appeal for crane safety without

an authority, contrary to s 9. Brian Parker and Yulei Zhou

have assisted in those appeals and Brian Parker at least if not

Yulei Zhou might reasonably be expected to know that they

were conducted without an authority. Accordingly, each may

have contravened s 10.

(b) In each case, the way in which the monies have been dealt

with may have involved contraventions by the CFMEU NSW

and/or Brian Parker, as Secretary, of the requirements in s 20

of the Act.

48. Having regard to what appears to be a complete failure by the CFMEU

to comply with the Charitable Fundraising Act 1991 (NSW), pursuant

to s 6P of the Royal Commissions Act 1902 (Cth) and every other

enabling power, that that this Report and all other relevant materials

have been referred to the Minister administering the Charitable

Fundraising Act 1991 (NSW), being the Minister for Innovation and

73 Submissions of Brian Parker, 28/10/15, para 27.

Better Regulation, in order that consideration be given to conducting

an inquiry pursuant to Division 1 of Part 3 of that Act into all of the

CFMEU NSW’s practices concerning charitable fundraising.