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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT735
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT ACTON
C2002/1479
C2002/3201
APPLICATIONS UNDER SECTION 118A BY THE
AUSTRALIAN WORKERS UNION and OTHERS
CONCERNING THE RIGHT OF THE AWU TO THE
EXCLUSION OF THE CFMEU TO REPRESENT EMPLOYEES AT
BORAL ROOFING (VIC) PTY LIMITED 66-78 TOOTAL
ROAD, DINGLEY
MELBOURNE
9.42 AM, THURSDAY, 14 NOVEMBER 2002
Continued from 13.11.02
PN3864
MR WOOD: Before we start, your Honour, I just wanted to report to the Commission. I have another matter at 10.15 before Senior Deputy President Kaufman on a report back for the simplification of a 35-hour week in the oil industry. I have arranged for Mr Phillips, who is supposed to be here today, but hopefully he will come before I have to go.
PN3865
THE SENIOR DEPUTY PRESIDENT: Very well.
PN3866
MR WOOD: If the Commission pleases.
PN3867
THE SENIOR DEPUTY PRESIDENT: Mr Roach, are you - - -
PN3868
MR ROACH: Yes, I have got no problem.
PN3869
THE SENIOR DEPUTY PRESIDENT: - - - continuing with Mr Anderson?
PN3870
MR ROACH: I understand these things happen.
PN3871
THE SENIOR DEPUTY PRESIDENT: No, no, we are continuing with Mr Anderson?
PN3872
MR ROACH: Yes, Mr Anderson is here. He is under cross-examination by Mr Parry.
PN3873
THE SENIOR DEPUTY PRESIDENT: Yes, that is right.
PN3874
PN3875
THE SENIOR DEPUTY PRESIDENT: You remain sworn, Mr Anderson.
PN3876
Mr Parry.
PN3877
MR PARRY: If your Honour pleases.
PN3878
Mr Anderson, where did you work before Boral?---Directly previous to working at Boral, I was a nursing attendant at a nursing home called St Winifred's in Chadstone where I was a casual for approximately two months. Before that I was a ground crew with the Goodyear blimp for four years - three-and-a-half to four years roughly; that was a full time job.
PN3879
You have never held a position in a union?---No, I haven't.
PN3880
Have you ever been directly involved in enterprise bargaining negotiations before?---No.
PN3881
You say in evidence yesterday that Jimmy seemed to be accepting everything the company said and did. You yourself did not attend any of the negotiations, did you?---No, I didn't.
PN3882
Right. Did you ever ask Mr Panagiotopoulos what was going on in negotiations?---Yes, I did.
PN3883
And he reported to you, did he?---Yes, he did.
PN3884
He told you that the rostered day off was an issue being negotiated?---We actually asked Jimmy ourselves after the negotiations several times - many times all the time, after all the negotiations that he emerged from, and - yes, that is right, we raised ourselves the fact that the RDO was an issue for us and he also - Jimmy told us that it was an issue that, as far as he was concerned, was a moot point and set in stone basically.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3885
I am sorry, I didn't catch that last bit?---Set in stone basically. That he didn't feel it was worth fighting for.
PN3886
He didn't feel it was worth fighting for and he told you that?---That is correct. He also said if we found it necessary to force the issue, he would again get the caravans out in a couple of hours and we could strike, no problems.
PN3887
Right. Now, your evidence yesterday also referred to what you described as an inappropriate rostered day off system. I take it that you weren't happy with the system of fixing days for rostered days off?---Actually, I referred to the inappropriate application of the rostered day off system.
PN3888
I see?---In that it was instituted before the EBA was ever signed or voted for, in fact.
PN3889
So you weren't happy with the actual system itself, but the fact that it was implemented in February?---Correct.
PN3890
I see?---We were unhappy that it was instituted without any real discussion or an official - the official signing of the EBA which it was given to us to understand that the old EBA was in force until the point where it was voted on and signed and passed by the Commission.
PN3891
Did the old EBA deal with rostered days off?---I am unsure.
PN3892
Right. In fact, the EBA - I am sorry - rostered days off were dealt with in the award; did you know that?---No.
PN3893
Did you attend a meeting before the introduction of the changes to rostered days off where this issue was discussed with Jimmy and others?---Would you repeat the question please?
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3894
Did you attend a meeting before the introduction of the rostered day off system in February with Jimmy and others where the introduction of the system was discussed?---Don't remember, to be honest.
PN3895
Now, you told the Commission yesterday that you were - I think you said we went to the AMWU first to seek representation; who is we?---I am unsure as to actually called. We gathered as an afternoon shift group and several day shift employees as well, I believe, including Andrew Cain who is a witness for the AWU, and decided that our representation with the AWU wasn't satisfactory.
PN3896
You decided; there was a vote, was there?---There was a common consensus, yes. There was not an official vote whereby we raised our hands, no.
PN3897
Mr Dingwell was leading this, wasn't he?---No, that is not right.
PN3898
He was a major spokesman on behalf of changing representation, wasn't he?---We didn't have any official delegations of spokesman or leader or anything like that. We discussed them all - all these matters as equals.
PN3899
And there was a consensus, as you say, but no vote?---That is right.
PN3900
Well, who went to the AMWU? Not you, I take it?---I am unaware of who - - -
PN3901
And you don't know who went to the AMWU?---I am unaware of who made the phone call to call them in.
PN3902
I see. But you said, we decided, then there was a call to the AMWU. Presumably, somebody reported back to you what the AMWU had said?---Sorry?
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3903
Somebody reported back to you on afternoon shift what the AMWU had told you?---We had a union meeting where the AMWU came in and spoke to us.
PN3904
Right. And that was a union meet where, at work?---At work, yes, and officially - we officially notified the management that we were having a union meeting, and had one.
PN3905
Right. And somebody from the AMWU turned up?---Yes, that is correct.
PN3906
Who was that?---I can't remember his name, sorry.
PN3907
And he said it was really - it wasn't appropriate, I suppose, for the AMWU to represent you?---No, he said his specialty was more towards tradespersons and we might be better represented by someone who had operated in the tile industry.
PN3908
Did he suggest anybody?---No, he didn't really. He actually suggested that we just go out and search for ourselves and that we shouldn't be led along by anyone.
PN3909
And then you said - - -?---During that meeting, yes, there was a confrontation between the AMWU and the new manager of the plant.
PN3910
Sorry, a confrontation during that meeting?---Mm.
PN3911
You then say, we decided to call in CFMEU; who decided that?---Again, consensus.
PN3912
No vote?---No vote.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3913
Was this an afternoon shift?---No hand raising.
PN3914
I am sorry?---No hand raising, no.
PN3915
No, just a group of discontented employees having a discussion?---I disagree.
PN3916
I see?---I would say a group of - well, possibly, yes, discontented employees talking to each other and finding a consensus.
PN3917
I see. And who was the chairman of this discontented group of employees?---As I said, we were as - we were coming to consensus as equals.
PN3918
Yes, all right. Well, who made the call then to the CFMEU?---I don't know.
PN3919
You said yesterday to Mr Roach, you seemed appropriate. Why was Mr Roach appropriate?---Well, given, as we discussed again in consensus, we discussed between ourselves and found that the CFMEU would be more appropriate than the AMWU as they tended to represent tradespersons.
PN3920
CFMEU tended to represent tradespersons?---That is what I was given to understand, yes.
PN3921
Who gave you that to understand?---The AMWU organiser that we met with in the union meeting.
PN3922
So he did mention the CFMEU?---No, he said that it would be more appropriate for someone else with more experience in dealing with production workers as opposed to tradespersons in the tile manufacturing industry.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3923
So he mentioned the tile manufacturing industry, did he?---Possibly so.
PN3924
Do you remember that or you don't recall?---I don't recall, to be honest, no.
PN3925
Had you ever heard of Mr Roach before?---No.
PN3926
Had you ever heard of the CFMEU before?---Yes, I think so, yes, but I can't be sure where.
PN3927
Did you know of their involvement in the clay tile industry?---No, I didn't.
PN3928
So you had absolutely no basis for making any assumptions about whether Mr Roach and his union were appropriate or not, did you?---Well, we had called in the AMWU and found that they were inappropriate, so we called in another union to see if they were appropriate. As luck would have it, it seemed to us that they were indeed appropriate.
PN3929
Why?---Steve, as opposed to the AWU organiser Jimmy, listened to us, didn't make ridiculous promises, didn't need to resort to threats of violence or abusing the members or was - - -
PN3930
Well, can we stop the generalities and we can focus on when you had the first meeting with him perhaps. When did you first meet with him?---What generalities? I am talking facts.
PN3931
Let's go to the first meeting. When was that, about 17 or 18 March?---The first meeting of who?
PN3932
When you first met Mr Roach?---Yes, I believe so, I think so. I could be wrong; I am unsure, to be honest.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3933
You don't recall the date?---No.
PN3934
Do you recall the occasion you first met Mr Roach?---Yes.
PN3935
Where was it?---In the first - Mr Roach came on site and we were in a union meeting. We had a meeting with him basically.
PN3936
Did you bring him up to date where the EBA negotiations stood?---Yes, I - I am unsure about that.
PN3937
Are you aware that Mr Roach had a copy of the draft EBA?---I am unsure, but no, I don't recall.
PN3938
Do you recall him telling you that the EBA proposal was substandard?---No, I don't recall that at all.
PN3939
Might have; you don't recall?---I don't recall.
PN3940
Do you recall him telling you that it contained less than other EBAs?---No. Actually, I don't recall Steve Roach saying that. I do recall the AMWU organiser saying that though.
PN3941
Possible Mr Roach said that, but you don't recall?---I don't recall whether he said that or not.
PN3942
I see. Do you recall him mentioning the conditions in other EBAs in the roof tile industry?---No, I don't.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3943
He might have, but you don't recall?---I don't recall.
PN3944
Do you recall him mentioning long service leave as an area?---I believe we actually raised the subject of long service leave, and he - - -
PN3945
Who is we?---We being - when I refer to we, I refer to the afternoon shift and I think at that stage it was one person from the morning shift.
PN3946
Mr Sandvik?---Sorry?
PN3947
Mr Sandvik. Tapio?---Tapio, yes.
PN3948
Do you recall Mr Roach raising redundancy provisions?---No, again that was the AMWU organiser alerted us to the fact that we were on a considerably older award system than was regular for AMWU people.
PN3949
When you told the Commission yesterday you were querying the award system in respect of Advantage 2000, what were you talking about there?---As I said, yes, the AMWU fellow alerted us to the fact that we were on an older award system, I believe is what he said, and that the Advantage 2000 award system was newer, more updated, and had mention of things like a slightly more advantageous redundancy agreement and also - what do you call it? - employee - - -
PN3950
And long service leave. I am sorry?---Employee - employee redundancy insurance, something to that effect.
PN3951
All right. So you were aware of these issues and then Mr Roach came in and you raised them with Mr Roach?---Yes, I believe so.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3952
What did he say?---He made representation that he would look into these things.
PN3953
He would look into them?---Yes.
PN3954
Is that all he said about them?---I believe so.
PN3955
He might have said other things, but you don't recall?---I do recall that there was no promises made, there was no ridiculous representation that he would do anything other than what a regular organiser should. He wouldn't go overboard, would not try to ferment any industrial disagreement.
PN3956
Now, you told the Commission yesterday of Mr Mastrandonakis threatening Mr Dingwell. Can I take it that there was a - there you are referring to a discussion between Mr Dingwell and Jimmy that took place in early March?---No. I believe that is correct.
PN3957
And this was at the time or soon after the AMWU representative had been on site?---Yes.
PN3958
And Mr Dingwell was very critical of Jimmy in his representational role?---Actually very - yes, he was. His wording was actually quite critical in that he found that - he was expressing the sentiment that he felt that Jimmy had again been very lax in his representation of us, yet he approached it in a very calm manner, without any confrontational raising of voice, any use of expletives or anything like that, and - - -
PN3959
Were you there?--- - - - Jimmy's reaction to that - I believe I was, yes.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3960
All right. You see, Mr Royale gave evidence to the proceedings in respect of the certification proceedings and he described this conversation. He said it was heated on both sides and Mr Dingwell often used extreme language himself. You dispute what Mr Royale said?---As - the way you asked the question was up to the point of the dispute where Rick asked him a question and he expressed his opinion very reasonably, and then Jimmy actually threatened to jump over the table and kick his head in, and at that point, yes, things became slightly more heated.
PN3961
The conversation went on, didn't it?---Yes, I believe so.
PN3962
And both giving as good as they got?---That is a matter of your - I don't know. Yes, I suppose both expressed their opinions.
PN3963
And you referred to other threatening conduct by Jimmy; were you there referring in particular to the meeting on 22 March at the Boral site?---Again, I don't remember the dates, I am sorry.
PN3964
But that was a meeting in which Mr Roach was there, members of afternoon shift, Jimmy, and a representative of the AMWU?---Yes.
PN3965
That was the other occasion that there was heated comment from Mr Mastrandonakis, wasn't it?---That is right. There was heated comment, yes. I don't believe he physically threatened anyone that time. There was certainly verbal abuse on his part to Miguel, who was a fitter, who made reasonable comment that he was dissatisfied, and Jimmy made a comment something to do with his sexuality, I think. There was - - -
PN3966
What words?---He said, do you go both ways, or something like that. You know, he just said basically, you go both ways, or something.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3967
What did he say before that? What were the words he used before that - Jimmy?---I don't recall, I am sorry.
PN3968
All right. What were the words that he used after that?---After that was, I believe, more heated argument, everyone pretty much talking at once, being somewhat outraged at his general insult of the people who he was supposed to be representing.
PN3969
Miguel was giving as good as he got?---No, not really. He wasn't - actually, he took it quite well, I thought. He, sort of, remained fairly quiet.
PN3970
He was quiet?---As I believe my memory - if my memory serves me correct, he actually didn't start shouting back as there was quite a bit of shouting going on at that stage from people who were quite displeased at being - at the confrontational nature of all this.
PN3971
You accept that a number of the workers were shouting, don't you?---Yes, I do.
PN3972
Right. And these were workers from afternoon shift?---Everyone was in the room; I couldn't say, I didn't actually take a notion to separate all these numbers.
PN3973
All right. Now, you then joined the CFMEU. You pay subscriptions to the CFMEU, do you?---Yes.
PN3974
How are they collected?---A bill sent out in the mail and I send a money order back.
PN3975
I see. Now, you were involved in the meeting where the second EBA was put up, weren't you?---The second EBA. Yes.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3976
Do you recall attending a meeting in about June where the second enterprise agreement was put up?---Yes, we received that.
PN3977
Did you have any issue with the contents of that EBA?---Yes, I had some issue with the changing of wording to do with the skill levels of production workers seemed somewhat more ambiguous in allowing people to actually be brought down levels if it was considered their - in the opinion of management that their skills didn't match the levels.
PN3978
All right. That is one. What else?---Also the sick days were said to require as opposed to initially they were supposed to give allowance to having two days off in a row to having single days off without requiring a doctor's certificate. That was change to requiring - you can have, I think, two single - or one single day off, I am not sure which, without requiring a certificate and then you had to bring a certificate in for any single day after that.
PN3979
You were unhappy with that?---Yes, that was a changing in the EBA.
PN3980
What else were you unhappy with?---I don't recall at the moment, I am sorry.
PN3981
Were you unhappy with the long service leave provisions?---As I mentioned before, we were operating on an award that was significantly older than the Advantage 2000 one, therefore there was, I guess in that way, an issue with the EBA, yes, and long service leave being - giving slightly better conditions in the Advantage 2000 award, I believe.
PN3982
You are aware that the aware that you are operating under as you say was made in the year 2000 by the Commission?---No.
PN3983
No. I am just trying to figure out what you were told by the AMWU about operating under a significantly older award. Can I take it that what was said to you that the conditions that you were operating under were significantly less than in other awards?---Significantly meaning somewhat less, I guess so, yes.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3984
So there were other conditions that you wanted that weren't in the EBA that you thought from what you had heard from the AMWU should be included in a more modern award, as you say?---I believe so, yes, including protection insurance.
PN3985
All right. And you thought these matters should have been pursued in the EBA?---Yes. We felt - - -
PN3986
And - I am sorry, go on?---We felt that our representation by the AWU was unsatisfactory given that we felt we were at a disadvantage.
PN3987
Yes, but when you say unsatisfactory - your representation was unsatisfactory, that must mean because they hadn't obtained the conditions that you had wanted in the EBA?---They hadn't attempted to even listen to us.
PN3988
Yes, but the consequence of that must mean that you were dissatisfied with them because they hadn't obtained the conditions that you had wanted in the EBA?---Didn't even get to that - didn't get to the point where we were able to express our dissatisfaction with the methods which he followed negotiations and the point was he did not listen to what we were requesting him to look into, for example, the application of the RDO system before the EBA was signed.
PN3989
Yes, but just to - well, let's stay with the RDO system. The RDO system you remain dissatisfied with?---Personally and along with many other people I believe, yes, that it need not have been changed.
PN3990
I am sorry?---It need not have been changed. The system as it was seemed fine.
PN3991
Right. So you, and you say others on the afternoon shift, remain dissatisfied with the rostered day off system?---I think we are accepting of it now because it has been instituted with so much force majeure.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN3992
All right. So you now - what is your evidence, you accept the rostered day off system and don't want it changed?---I accept that the rostered day off system is here to stay because the EBA has been signed.
PN3993
But you accept that there will be a new EBA negotiated next year; is that something you think should be negotiated again?---Possibly. I think it possibly should be raised and see what comes of negotiation with that.
PN3994
So you would instruct your union representative, whoever they be, that they should pursue this?---Yes.
PN3995
Now, the other - you referred to not even getting your position put. You accept that Mr Panagiotopoulos was involved in the negotiations?---Yes, he was present.
PN3996
Did you ever pass on to him that you wanted those positions put?---Yes.
PN3997
And you left it to him as delegate to pursue those presumably?
PN3998
That is a yes, is it?---Sorry, that is a yes.
PN3999
Now, you know that there was a vote taken in respect of the second EBA? The one in June that I started off asking you about?---A vote was taken?
PN4000
There was a - I am sorry, there was a meeting called in about June, about 5th or 6th June where there was to be a vote taken on the second EBA?---Yes, there was a - I suppose you could call it a union meeting where the afternoon shift and the morning shift and the fitters gathered together. It had been stated to us that the fitters could vote in the production EBA if they so wished. They had expressed a desire to do so. The manager of the plant, Alan Olsen, led the meeting to a certain point with the AWU representative, Jimmy, sitting to the back grinning widely. He expressed to us that in fact he would go back on his word and not allow the fitters - excuse me, can I get a glass of water?
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN4001
MR WOOD: Just at that juncture, subject to what the Commission has to say about this, I have spoken to Mr Roach, I had planned to leave now. I don't intend or ask that I interrupt proceedings here and cross-examination can go on. Mr Roach has agreed that if the cross-examination is finished before I get back, he has agreed to an adjournment. I don't think I am going to be any longer than half-an-hour.
[10.13am]
PN4002
THE SENIOR DEPUTY PRESIDENT: Yes?---As I was saying, up to the point of the vote, yes the fitters, it had been promised by management that the fitters could vote in the production EBA if they so wished, they expressed that desire to do so. On the day of the vote we came together and the manager said that this was effectively not to be the case, that they couldn't vote on the same EBA but they had to vote for a separate yet the same EBA. At that stage, the members of the afternoon shift and I believe Tapio as well, decided that this was not acceptable and we left the room at that stage. And a vote was held with the nine or 10 people that were left.
PN4003
MR PARRY: Mr Anderson, I am going to show you a document called exhibit B5. If I can hand this to the witness. Have you seen that document before?---Give me a second. Possibly. I don't remember.
PN4004
All right. You see, the evidence before the Commission is that that was distributed to all employees some two weeks before the meeting?---I can say that personally I think I would remember if I received one of these personally. Possibly if it was stapled up to a bulletin board I might not remember it. But I believe if I had been personally given this I would remember, so.
PN4005
You see, that document makes it fairly clear that it is only the production employees to be voting and not the mechanical and electrical tradespersons. See that?---Is that a question?
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN4006
Yes. Do you see that in the document?---
PN4007
You are not eligible to vote if you are a mechanical or electrical tradesperson. Contrary to what we were led to believe by the manager.
PN4008
Well this is where you - I am not quite sure what you said, you were promised by management. Who told you you were promised by management that the fitters would be able to vote?---The group of fitters informed us that they had been given the option to vote on the production EBA.
PN4009
Yes. No-one from management ever told you that, did they?---No, that is true, they didn't personally tell me that.
PN4010
And when Mr Olsen spoke, he did not say he was going back on his word and would not allow the fitters to vote, did he?---Of course he didn't.
PN4011
I am sorry?---Of course he did not.
PN4012
No?---It would not be in his best interests.
PN4013
Right. He just said that the vote was going to proceed and it was not going to include maintenance employees. And that had been made very clear?---He actually said that the vote - they could vote on exactly the same EBA but in a separate vote.
PN4014
The plan to walk out had been decided on before this meeting by afternoon shift, hadn't it?---Absolutely not. There had been actually no consensus decision to walk out of that vote. We had gone in there expecting to vote with the fitters. And when it became apparent that we had been apparently deceived.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN4015
You had been deceived?---In that we had been or it had been promised to the fitters that they could vote with the production EBA, then it became apparent that this had become a joke by saying that you can vote on the same EBA yet separately.
PN4016
Now your proposal - you were going to vote against the EBA?---That is correct.
PN4017
What was going to happen after the EBA was voted down, as far as you were concerned?---We would negotiate further.
PN4018
Who would negotiate?---Between management and the production workers.
PN4019
Production workers on afternoon shift represented by the CFMEU?---At that stage we had been told that the CFMEU was not allowed on site.
PN4020
Yes?---Therefore it would have been difficult to organise negotiations, I assume.
PN4021
How would - what was the plan? What was going to happen with negotiations?---We didn't get to that point.
PN4022
Did you want there to be an EBA, yourself?---I certainly did, yes. As with everyone, it had got to the point where we wanted some resolution, some resolution where both sides could reach agreement as is - could reach an enterprise bargaining agreement where both sides had reasonable negotiation.
PN4023
Yes, but there wasn't two sides, was there? There was the day shift who were represented by the AWU, the afternoon shift and management. So it wasn't two sides, there was three sides wasn't there?---It was an enterprise bargaining agreement between management and the production workers.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN4024
Yes but the production workers on afternoon shift didn't want to be represented by the AWU, did they?---But the point in question was the enterprise bargaining agreement, not how many different names there was to the two teams that were involved, given management and production workers.
PN4025
Yes, but you didn't want the AWU representing you, on afternoon shift, did you?---That is correct.
PN4026
Day shift as you understood it, did?---As I understood it, yes.
PN4027
So you weren't going to be represented by the AWU. Who was going to represent the afternoon shift?---Given the failure of anything else, we could have represented ourselves and negotiated ourselves, if that was the way that it had to be. We were just after reasonable negotiations.
PN4028
When you say after reasonable negotiations, you mean pursuing the issues that you have described to the Commission that you were dissatisfied with?---Yes.
PN4029
So the position was going to be, wasn't it, that you on afternoon shift were going to be pursuing one set of conditions, day shift had accepted another set of conditions and that was to be the way negotiations were going to proceed?---I was aware of probably four or five people who had not read the EBA at all on the day shift part. So, yes, I guess they accepted those conditions.
PN4030
Right?---On faith.
PN4031
Now you say in your witness statement that you are looking for effective representation. What do you mean by effective representation?---To me effective representation is not having our members, not having people abused. Not, neither, not somewhere in between ridiculous inaction and threat to take immediate and severe industrial action, which we never wanted.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN4032
When you say you never want, this is ultimately a matter that would be decided collectively by the afternoon shift, presumably?---Mm.
PN4033
That is a yes, isn't it?---Sorry. Yes, that is a yes.
PN4034
The afternoon shift would get together and make a decision on what it wanted to pursue?---Mm.
PN4035
And instruct its organiser and expect those matters to be pursued?---Given that our organiser was not allowed on site, we may well relay our opinions to our organiser, yes.
PN4036
Right. What if he was - - -?---So not necessarily expect it to enter negotiation until a point where it was possible for him to actually be there and negotiate - - -
PN4037
Now if he was allowed on site?--- - - - Hence our presence here.
PN4038
Let us assume he was allowed on site. You would presumably - the afternoon shift would meet, put together a log of claims and expect the organiser to pursue those matters?---To negotiate fairly on our part.
PN4039
Right. With some discretion, presumably? Or not?---With some consideration to both parties, definitely. That is what enterprise bargaining is about,in my opinion.
**** DAVID BRIAN ANDERSON XXN MR PARRY
PN4040
Now you are - sorry, I withdraw that. So the enterprise - assuming the organiser of the CFMEU is allowed back on site, you envisage the negotiations for the enterprise agreement, next year, to involve the AWU, essentially representing day shift and collecting their views as they see fit and prosecuting them, and you on afternoon shift, collecting your views and having your organiser from the CFMEU prosecuting them. That is the way you see it as proceeding?---As the matter stands now, yes, if - as it may be down the track when we get to that point when the next EBA comes up, I don't know what the situation standing between who is joined to what union, I don't know. But yes, at this stage.
PN4041
I have nothing further if your Honour pleases.
PN4042
THE SENIOR DEPUTY PRESIDENT: What was the arrangement you and Mr Wood have come to?
PN4043
MR ROACH: Yes, there was, your Honour. I am happy to have an adjournment to enable Mr Wood to come back and cross-examine the witness.
PN4044
THE SENIOR DEPUTY PRESIDENT: And we expect that to be about 10.45 do we?
PN4045
MR ROACH: Mr Wood indicated to me he didn't expect it to be any more than half an hour. So he would probably be another 20 minutes. To be safe I would suggest maybe 10 to, your Honour, if the associated check it.
PN4046
THE SENIOR DEPUTY PRESIDENT: Yes. I will adjourn the matter until a quarter to.
SHORT ADJOURNMENT [10.24am]
**** DAVID BRIAN ANDERSON XXN MR PARRY
RESUMED [11.04am]
PN4047
PN4048
MR WOOD: I first want to thank the parties and the Commission for their patience in that matter and I apologise. I have got very few questions, as you would imagine. You gave some evidence in relation to the EBA that you have currently got and comparing it to others. You would be aware, wouldn't you, that there are different conditions applying in different industries?---How do you mean?
PN4049
Well, for instance, fruit pickers don't get paid the same or have the same conditions as oil industry workers?---Yes, definitely.
PN4050
So people that work in the industry say is fruit picking will get a certain salary?---Mm.
PN4051
People who work in the oil industry get another salary?---Mm.
PN4052
People that work in the cement and concrete pipes will get a certain salary and the same with the brick and tile ceramic, those people that work in that industry?---Possibly, I don't know about that one. But, yes, I will accept that.
PN4053
And you also gave some evidence about, I think the question that was asked was the AWU enticing people to be members by the use of going to football matches or something. Do you recall that evidence?---Yes.
**** DAVID BRIAN ANDERSON XXN MR WOOD
PN4054
Yes?---I don't remember if I worded it exactly like that, but - - -
PN4055
No. Words to the effect?---Yes.
PN4056
Right. What do you know about the invitations that would pass to delegates about the attending of a football match?---I spoke to Andrew Cain about going to the football, at one stage whilst we were in passing in shift changing and - - -
PN4057
Which football match did he - - -?---He didn't specify.
PN4058
- - - did he invite you to one or?---He did not invite me to a football match, personally, no. I have told by - hearsay again - I have been told by other people on the afternoon shift that they were invited to a football match on two occasions.
PN4059
Right?---And that - actually I suppose it is once removed, but a fellow, Kevin, on the morning shift, asked me if I wished to go to a football match with himself and Andrew Cain and Jimmy.
PN4060
Did he say what football match it was?---Basically the ticket being paid for by the AWU, was an impression I got. No, there was - - -
PN4061
Well were you told it was being paid by the AWU, or that was the impression you got?---Well we were told that they were free tickets.
PN4062
Yes - - -?---Or that the tickets were being paid for by someone and given. I guess I made the assumption that it was the AWU, given that Kevin and Andrew weren't likely to be offering me free tickets as such. I didn't think it was not exactly - - -
**** DAVID BRIAN ANDERSON XXN MR WOOD
PN4063
So you made the assumption it was the AWU. No-one told you the AWU was paying for the tickets?---At that time, yes.
PN4064
And do you know what football match it was?---No, sorry, I don't - - -
PN4065
Do you know where it was?---No, not to be certain, really. No, sorry.
PN4066
You, therefore, wouldn't be aware that - well, were you aware that more than Boral were invited to that football match?---Depends which occasion you are talking about. The football match that I mentioned earlier that Andrew Cain had mentioned that he had been to with free tickets, again, I don't think he mentioned that the union paid for them, again I don't know about that one. The second issue - when Kevin invited me to a football match or you know, he said basically, in passing, would you like to come to a football match and I said no - - -
PN4067
Now, Kevin is who?---Kevin is a worker on the morning shift.
PN4068
And he - did he invite you to - so there was two occasions that you were invited - - -?---He said, we are going to a football match and tickets have been paid for. I honestly don't remember whether he said that the tickets had been paid for by a specific party. But, yes, he invited me free to the football. That was a second occasion after Andrew had told me about the free football match that he went to.
PN4069
Do you know Mr Bill Kelty?---No.
PN4070
The name is not familiar, either, previous secretary - - -?---The name is familiar, yes, secretary of something.
**** DAVID BRIAN ANDERSON XXN MR WOOD
PN4071
If I tell you that he was a previous secretary of the ACTU, would that - - -?---I would take you word for that, no worries.
PN4072
If I told you that he was also a commissioner with the AFL, would that make it any clearer?---Fine.
PN4073
You don't know if - we will separate the two occasions. On the first occasion when you were invited to the football, did you know if that was just Boral being invited or you just being invited or were there other people going to be there?---According to what other people have told me, they were also invited to free football matches on one occasion after the occasion that Andrew told me he went to a football match with Jimmy.
PN4074
Well what other people. You have to be a bit - - -?---Okay. Johnny said that. I think Barry, my supervisor, has also stated that.
PN4075
Outside of Boral but, were there other people going to the football match, did you know that of - - -?---Was the general public going to the football match?
PN4076
No - - -?---Was it said, are you trying to get at - - -
PN4077
- - - under the invite?--- - - - was it said to me that it was a broader free ticket arrangement. No.
PN4078
So for all you know you just thought it could have been that it was only Boral that was invited, wasn't it? And it did go broader than Boral?---Could you be more specific than say just Boral?
PN4079
As far as you know - - -?---As far as I know none of the management were invited or anything like that. So I guess, say production people or possibly fitters, I don't know.
**** DAVID BRIAN ANDERSON XXN MR WOOD
PN4080
I will try not to make this too hard for you. As far as you know, you didn't know one way or the other whether it went further than people outside Boral? Well did you know or didn't you know?---What is "it" though? Could you be more specific with what the essence of the question is. Because you are saying I don't know either way whether it was related to Boral specifically or not. It being the - - -
PN4081
Well going to the football, that is what we are talking about?---Okay. Football, free tickets.
PN4082
All right. There is football free tickets, that is what we are talking about?---Two occasions, yes.
PN4083
And there was an invitation to you and others, presumably - - -?---Yes.
PN4084
- - - to go to the football?---Okay.
PN4085
The question I am asking you, do you know whether it was just these free tickets, was it just broader than Boral or was it just Boral?---I see, the free tickets, at a - no, I don't know.
PN4086
You don't know if it was or wasn't. Okay. You gave some evidence about a very old award system. I think you have said it on two occasions that I was here, anyway - - -?---An older - - -
PN4087
What is your understanding of that?---My understanding is that Boral was - the production award was operating - that we were operating under for the current and past EBA was older and somewhat less advantageous to us than the Advantage 2000 Award. That is what I said I was - - -
**** DAVID BRIAN ANDERSON XXN MR WOOD
PN4088
All right. Might it be that, might it be that the terminology that you are using, it is Campaign 2000, not Advantage 2000?---Okay. Right.
PN4089
And Campaign 2000 wasn't about an award, was it?---I don't know.
PN4090
Do you know the difference between and award and an EBA?---I gather that the award goes into the generalities of a specific say trade or occupation and the EBA is specific to the site.
PN4091
So, would an award, in your understanding, have a broader application than an EBA?---Broader in the sense that it might cover more than one, say, factory of the same type, yes.
PN4092
Yes. So the award you are under may very well apply to other than Boral?---Possibly so. I am unaware, I am sorry.
PN4093
But the EBA certainly just covers your area?---Covers yes, I guess our factory.
PN4094
And it is not inconsistent there with your earlier evidence, then, that different industries have different conditions. Is that right? Is that yes?---Given that saying different industries have different work situations, yes, definitely.
PN4095
Okay. Now did you or any other member, to your knowledge, ring the AWU about your problem that you had with your organiser?---I believe Rick Dingwell actually called the AWU and complained, yes. I believe so.
PN4096
Do you believe or do you know he did?---Well he told us that he called and complained, yes.
PN4097
Do you know who he complained to?---No, I am afraid I don't recall a specific name. He actually did tell us that name but I can't remember, I am sorry.
**** DAVID BRIAN ANDERSON XXN MR WOOD
PN4098
Do you know if he talked to an organiser or a receptionist?---I believe he called the office in Melbourne, the most readily information number to call, asked to talk to someone and did so, I believe.
PN4099
Do you believe or do you know?---Okay. I remember him talking about it and yes he called, according to himself.
PN4100
When did that happen?---Just prior to the union meeting where Jimmy threatened to kick his head in, I think.
PN4101
That meeting was - what, he made a call after that or before it?---I believe after that.
PN4102
After that he made it. That was a meeting that Mr Roach was at?---Was he at that meeting? I don't believe so, no.
PN4103
You don't believe so?---I can't remember, I am sorry.
PN4104
Okay. Now you have provided a statement to the Commission. You were asked some questions about that statement. It appears they are all the same. Yes, it appears that statement is the same as all the other statements that have been filed in the Commission?---Yes.
PN4105
And I think that your explanation was that you all got together?---That is right.
PN4106
You all decided what was concerning you?---Mm.
PN4107
Expressed that to Mr Roach?---Yes.
**** DAVID BRIAN ANDERSON XXN MR WOOD
PN4108
Mr Roach then went off and did up a proforma?---Mm.
PN4109
Of your concerns?---Mm.
PN4110
And then you all signed it?---Well we didn't really see any point in changing the wording if the actual meaning of the intentions that we wished to get across were exactly the same. And we had all, as I said, agreed consensually on them. And once we came up with a statement that we found was workable then yes we gave it to him.
PN4111
So everyone on the afternoon shifts thinks exactly the same way about these issues?---Certainly at the time of this signing they did, yes.
PN4112
No-one feels stronger about it than another person? They all miraculously come out at the same level?---Actually it is not a miracle at all, we are all quite reasonable people and we were all astonished at the behaviour of the AWU organiser at the time. And basically it was very easy to come to a consensual agreement about it.
PN4113
Yes, but that wasn't my question. I am not - I am not defending or otherwise any actions of the AWU, I am just asking the question about, that you all came to the same conclusion and there was no - - -?---As I said we consensually agreed, found out what it was that we all wanted and in doing so we came up with this statement. It is not a generalisation of our opinions, if that is what you are trying to get at.
PN4114
Yes. No, no, I am just trying to get your answer. But this witness statements and probably many other, like we have heard the dispute about the water in the shower and the leaving of the lunch room. It has become a bit of a feature with the afternoon shift, hasn't it, that they act as one?---That we are united, yes. Definitely. We find that that is the most effective way to get our message across, I guess.
**** DAVID BRIAN ANDERSON XXN MR WOOD
PN4115
I am not passing aspersions, I am just asking the questions?---No, no, no.
PN4116
PN4117
MR ROACH: Just in relation to the cross-examination yesterday, Mr Anderson, by Mr Parry, Mr Parry questioned you quite vigorously with regard to the occupational health and safety matter, I think three weeks ago or thereabouts?---Yes.
PN4118
When you were complaining to management with Mr Panagiotopoulos, regarding the matter, what was management's response at that time?---Repeated questioning as to whether we were taking industrial action was their response. Basically we went in there and made our complaint and stated that they had admitted to cancelling the truck to pump out the sewerage several times that week and despite the fact that they had requested us to stop production and have a meeting and meanwhile we had gone in to complain after that. They basically, essentially, in my opinion, were badgering us to make some sort of verbal commitment that we were somehow involved in some sort of formal industrial action. And that - believe it was three times that they asked.
PN4119
Who is they?---Alan Olsen and Kelvin Tiplady.
PN4120
And who asked you if you were taking industrial action?---I believe it was - the questioning was from both of the parties - both of those people. And basically with the rejoinder that, you know, if that was the case then there would be serious repercussions.
PN4121
How many times did they ask you?---Three times.
**** DAVID BRIAN ANDERSON RXN MR ROACH
PN4122
And what was your response?---We said we are making a complaint here and basically didn't listen to us.
PN4123
You also raise the issue of the odours, the pretty bad odour, was it? From the overflow?---There was a noticeable smell of sewerage which, if you have ever smelt sewerage any sewerage smells pretty bad.
PN4124
Have there been other instances where that type of spillage has occurred in the past?---Well that was basically what we were in there complaining about was, you know, happened on you could say quite easily a very regular occasion that the water had come up out of the plug hole whilst people were showering and washed up against their feet with other people's dirty soap water and hairs and follicles and that sort of thing. And basically - - -
PN4125
Was this instance in any way comparable in intensity with past instances?---I would say the heavy rain had possibly exacerbated the fact that possibly the actual sewerage pit itself - I believe the sewerage pit or the sewerage line or something like that - there had been a lot of work on the sewerage line and they had, I think, spent a lot of money in forming a new channel or pipe or whatever over the period of that year and I think it had somehow failed in the integrity of the pipes or something like that. But the fact that it was coming out of the ground, as I said, we came in the next day and there was large piles of sand strewn all over the car park, as with the photo, that is over the area of the cracks in the concrete there.
PN4126
Was the truck regularly rostered to attend to pump out the sewerage?---I believe so. That is what I was given to believe, yes. But it was, to my knowledge, and as was admitted by Travis when he spoke to us after he told us to gather and stop production for a moment, so they could talk to us about it. He admitted that they had cancelled the truck twice or three times - - -
PN4127
Did they tell you why they cancelled it?---No, they didn't explain exactly why.
**** DAVID BRIAN ANDERSON RXN MR ROACH
PN4128
Travis who?---Travis Anderson.
PN4129
What position does he have?---Maintenance - part of the management team. I believe his part is maintenance in the factory.
PN4130
And in the past have the odours gone into the workplace as well?---Well definitely when pumping out the sewerage, as is regularly has to happen, I believe, because of the problems with the new sewerage system. It has spread well and truly throughout the factory causing an extremely distressing smell. As you can imagine, it has basically filled the factory with smells of effluent.
PN4131
Now, Mr Parry also asked you before if you attended a meeting in February with Jimmy - it will be Jimmy Mastrandonakis and the others, where changes to the RDO system were discussed. Your answer is, I can't recall. Do you recall being notified of any such meeting?---No, sorry.
PN4132
Sorry?---No. I don't recall.
PN4133
At the meeting of 6 June to vote for the EBA, you were one of the people who walked out?---Yes.
PN4134
Why did you walk out?---At that point I was extremely frustrated by the very apparent deception that had been played upon us, basically, by saying the fitters could in fact vote with the production workers for the production EBA, or on the production EBA.
**** DAVID BRIAN ANDERSON RXN MR ROACH
PN4135
Were you - was it ever explained to you why the maintenance workers were to be sidelined from the enterprise agreement, when they had been a party to previous enterprise agreements?---Yes. As I said before, the meeting, at that particular meeting where we did all end up spontaneously, I might add, walking out before the vote, Alan basically directed the whole meeting and at one stage was standing directly over me talking quite to my face, basically. When I questioned why there was a - why suddenly he has decided that to change his mind and go back on that particular agreement or promise, he said that he was not a Philadelphia lawyer and could not actually come up with a dramatic legal argument. Yet it had been decided that, sure, the fitters could vote on the same EBA, word for word, yet it would be a separate vote. And somehow that was distinguished from actually voting on the same EBA which, in essence, it was not because they were two separate EBAs despite being worded the same. And we put that to him and he, as far as I was concerned, could not come up with a satisfactory answer and after we had tried several times, very reasonably without any great uproar, without, you know, being unreasonable at all, at that stage, I believe, Gary walked out first. And then I gave it another try to just try and figure out why this was occurring, like it seemed very unreasonable. And basically we decided it was fairly easy to see that this was not going to result in a fair vote. So having - you know, since it had already - they had already not accepted the notion of having a secret ballot in order to sort of preclude the possibility of intimidation on the part of, you know, on the part of the day shift people, who seemed basically to not care about the actual issues but just wanting to get it over it, basically. And it was kind of fair enough. It has been a long and drawn out process really.
PN4136
Do you recall who called for a secret ballot?---Johnny, I think.
PN4137
Was that Mr Panagiotopoulos?---Johnny, yes, called for a secret ballot.
**** DAVID BRIAN ANDERSON RXN MR ROACH
PN4138
And did Mr Panagiotopoulos convey to you or, to your knowledge, other workers who walked out of that meeting, that he had been advised by myself or any other CFMEU official to do that?---Absolutely not. We are quite an independent lot and we will do what we see fit to do. And if one of us disagrees with the group then that person is strong willed enough to not do that. So basically we came spontaneously to this agreement. It was readily apparent that we were going to be, to put it nicely, shafted, in this matter. Just, you know, broken - basically the promise had been broken and it was clearly apparent that they were going to push through this vote no matter what. So having been there it was very readily apparent that to stay there and vote no would have just - would have worked against us as well because it would have given some legitimacy to the vote. And I could see that that would be wrong and everyone else could readily see that. There was no previous agreement before that at all. No-one had advised us what to do in that case and basically we followed our own sense and lead.
PN4139
And it is your evidence that you did not see the notice that is marked exhibit B5, that was shown to you earlier?---I would say that if that had have been given to me, personally, as Mr Parry had said, I would say I would remember getting it. As I said, I don't remember receiving that.
PN4140
Just in relation to Mr Wood's cross-examination, on the issue of the free football tickets. Are you a big football follower?---No, not at all. But I also remember one occasion where it was related to me by Andrew that he went out for drinks with Jimmy and you know, we were invited to do the same. And it was just a friendly gesture, I suppose.
PN4141
These free football tickets, when they were offered to you by Kevin on the day shift, did he say who would be going to the football?---Yes, it was he and Andrew and Jimmy and whoever else wanted to come at the time, basically.
PN4142
So it was either the workers from Boral and the AWU official?---Mm.
**** DAVID BRIAN ANDERSON RXN MR ROACH
PN4143
Are you aware of anybody else besides workers from Boral or the AWU official?---That were offered? No, I am not aware that anyone else was outside that, say, our production group, even. I am not aware that anyone from the fitters was offered free tickets. They could have been, possibly, but I am not sure outside that, no.
PN4144
Just on the other point of - Mr Wood asked you about did people complain of it to the AWU. Now you have only been at Boral Roofing for a little over a year. Is that right?---A year full time and roughly five to six months casual.
PN4145
So you are not aware of Mr Mastrandonakis's predecessor?---Only by hearsay. Basically, the fellows who have been there long enough who went through the last EBA, basically told me about the fellow who was there before was quite unrepresentative of their notions as well. And they basically - that they said they undertook a vote of no confidence in him. And that is how I think Jimmy got into the picture.
PN4146
Have you met any other AWU officials besides Mr Mastrandonakis?---Actually just Sam, here, came and addressed us, probably a couple of weeks ago or a week and a half, two weeks, whatever, basically. And it was good of him to come. And he apologised for Jimmy's behaviour. And it was good. And appealed to us to come back to the AWU and basically, yes, was apologetic for the way that things turned out and said to us that he was aware that it shouldn't have turned out this way, and I agree, you know, became an over blown issue and basically if we had have been represented properly it wouldn't have happened.
PN4147
When was that?---Two weeks ago. Was it two weeks?
PN4148
Was it an organised meeting?---Yes, it was on work time and we were paid for it, I guess. Yes we were paid for it. It went for about an hour or so, just over an hour.
**** DAVID BRIAN ANDERSON RXN MR ROACH
PN4149
And did that change your mind about the AWU?---I was happy - - -
PN4150
MR WOOD: Can I just - look, given I am the centre of attention in this question, this is re-examination. It hasn't come up at any time. I haven't brought it up. It hasn't been brought up in examination-in-chief or cross-examination. It is probably not appropriate. And if the Commission finds it is appropriate, it is probably appropriate that we are allowed to cross.
PN4151
MR ROACH: Well, your Honour, at point 7 of Mr Anderson's witness statement, he says he has no intention of joining the AWU regardless of the outcome of the current application and did not want them representing his industrial interests. In cross-examination by Mr Wood, Mr Wood asked if there had been complaints made to the AWU about the organiser at that time. And given that between the time the witness statement was done and now, the witness has had the opportunity to see alternative AWU officials. I think the question is fair to ascertain as to whether they still believe the organisation is inappropriate to re-join, rather than the personality of Mr Mastrandonakis.
PN4152
THE SENIOR DEPUTY PRESIDENT: I will allow the question.
PN4153
MR ROACH: Having seen other AWU officials, do you still have any intention of joining the AWU?---Whilst I was appreciative of the apology, at this stage it appears that - no - well, look, basically, at this stage I don't think so. I would say no, right now.
PN4154
I have no further questions, your Honour.
PN4155
MR WOOD: Have I got permission of the Commission to re-examine on that point?
PN4156
THE SENIOR DEPUTY PRESIDENT: I will allow you, but I will also allow Mr Roach to ask any further questions arising from your cross.
**** DAVID BRIAN ANDERSON RXN MR ROACH
PN4157
PN4158
MR WOOD: Just on that point, wasn't it said to myself that it might be a personality and if the organiser was no longer there that you would come back to the AWU? Was that said?---It was not, no. Actually, it was said in a way that was not leading towards the fact that we would ever come back to the AWU.
PN4159
Well was it said or wasn't it said? Was I told that if that organiser went there - - -?---No you weren't.
PN4160
It wasn't said?---No.
PN4161
No further questions, your Honour.
PN4162
THE SENIOR DEPUTY PRESIDENT: Mr Roach?
PN4163
MR ROACH: No, I am fine, your Honour.
PN4164
PN4165
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Roach.
PN4166
MR ROACH: Your Honour, I will be the final witness for ourselves. I would have liked to have called Ms Pope but she appears to be unavailable. However, I am satisfied that my knowledge of the situation should be sufficient. So I - if it is okay, I would like to take the stand and make a statement regarding the events that led to these applications and other associated matters. And am happy to submit myself for cross-examination under your direction. May I take the witness statement material of other witnesses into the box, including my own, to refer to?
PN4167
THE SENIOR DEPUTY PRESIDENT: You can take it and see whether there is any objection.
PN4168
MR WOOD: I would just - more about process than anything else, your Honour. Is it the intention of Mr Roach to give evidence, opposed to final submissions. Because most of what he has said, at the moment, I would have thought that, particularly about other people's witness statements and what has been said, that may be more appropriate to leave to final submissions. But it might be his intention, equally, to put all his material before the Commission now and loosely make a very small submission in relation to final submissions. I am just not sure on how the process is going to be dealt with.
PN4169
THE SENIOR DEPUTY PRESIDENT: What is your intention, Mr Roach?
PN4170
MR ROACH: The intention, your Honour, is to make statements under oath pertaining to my activities and my knowledge of the situation. Which, obviously, carries a bit more weight in some regards than submissions would. They may well overlap in certain areas but I am happy to be guided by your Honour as to the appropriateness or otherwise of statements to be made. So that is the basis under which I will be giving evidence.
PN4171
THE SENIOR DEPUTY PRESIDENT: Well - - -
PN4172
PN4173
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Roach?---For the record, Steven Paul Roach. Business address is 500 Swanston Street, Carlton South. I am an employee of the Construction, Forestry, Mining and Energy Union. I am the sole Victorian official for the Clay and Ceramics Division Branch, which is a relatively autonomous divisional branch within the Construction and General Division of the CFMEU. The majority of my job is organising employees who come within the coverage of that divisional branch. And I wish to make the following points in relation to the enrolment of members who are employees of Boral Roofing Proprietary Limited, otherwise known as Boral Montoro. On or about the 12 March, I was in Queensland working. We had a couple of plants up there, your Honour, and I was - early morning, I think it was, I got a phone call regarding whether we covered tile manufacturers. Mr Ricky Dingwell, who was a fitter at Boral Roofing, wanted to know if we had coverage at tiles and I said yes, we do. I had a tile plant at CSR Monier Wunderlich and Nubrik at their Scoresby plant also, from time to time manufacture terracotta roofing tiles.
PN4174
Yes?---You know, early morning, just off the top of my head, yes, we cover roofing tiles. So he said to me that, you know, there were people, production workers out at Boral who wanted to talk to us about possible enrolment with the union. They weren't happy with the AWU, they felt that they weren't getting proper representation. it is not a claim that I am totally unfamiliar with and accordingly agreed that my phone number would be passed on to one of the production workers who was Johnny Panagiotopoulos. When I got back to Melbourne, I think it was early the following week, Johnny phoned me and I arranged to meet him. And I met him down at the Hungry Jacks at Dandenong. I happened to be in the area over other matters. And we had a discussion, a meeting that lasted probably half an hour to an hour. And his description of events at Boral Roofing led me to conclude that people were keen to talk to us. But I didn't want to go barging into the joint, firstly, without having any members and secondly, without having met the people. So I gave him a number of admission cards for the union and arranged to meet him, I think it was the following day in the car park, the church car park adjacent to the roofing plant. And I have had other instances, similar, in the past, not necessarily with the CFMEU, and being a little bit burnt. So I wanted to see how many people really wanted to join up. When I got to the car park, for that meeting, Johnny handed me 17 filled out application admission cards. And they are an attachment to my witness statement. And, your Honour, what I would like, if possible, if I could have my witness statement, which has been submitted to the Commission and the attachments thereto, marked as an exhibit please.
PN4175
PN4176
PN4177
THE SENIOR DEPUTY PRESIDENT: Yes?---When I spoke to the workers at that initial meeting, it is fairly obvious they weren't happy with the negotiating methods or the whole process of negotiation for their proposed EBA. They seem fairly familiar with things such as what had been contained in the Campaign 2000 claims, that I believe the AWU and the AMWU apply as a common claim. And, you know, things like the long service leave and the income protection insurance were discussed. I didn't raise them, it was actually the workers who raised those particular issues with me. And they were asking, you know, could we do better. And my response at that time was look, you know, we will have a look at it. You know, I don't know. And we later had a meeting with management and at that - that was the meeting that we referred to on the 22nd. But prior to that meeting, I had actually a couple of discussions with Mr Tiplady, over the phone. He was referred to in earlier evidence by Mr Olsen, as the Industrial Relations Adviser of the company. But I know Mr Tiplady through other involvement with Boral Brick and indeed had spent many days and many hours with Mr Tiplady on the drafting of the Boral whole of award EBAs that we had negotiated out of a dispute last year, or we had negotiated. They were EBAs and we had had a dispute last year. Contrary to evidence given by Mr Miller, on Monday, I think it might have been, all action conducted in the negotiation for the Boral EBAs, were conducted as protected action in accordance with the Act. It is no great surprise to me that Boral were pretty sore about the outcome of that agreement. We got a good deal. And we were entitled to get a good deal, we felt - it is hard work. It is not well paid in comparison to other work, and fairly dirty and in some cases you could say medieval working conditions. Not that dissimilar, either, at the tile plant. In any event, yes, they were probably sore, but we got on, life went on, and I actually got on quite well with Mr Tiplady actually up until very recently. Anyway, we had a meeting with the management there, that is the one that is referred to, the meeting on the 22nd. Originally, it had been scheduled for the 21st, but Ricky died the night of the - it might have been the night of the 19th or the - we got word Ricky had died and we thought it would have been in bad taste to have a meeting. And management had told me in anyway - in any event that people wouldn't have been working the 21st and I found out later that they, in fact, did. Anyway, we had the meeting on the 22nd. I attended the meeting. Linda Pope was there, yes, Jimmy Mastrandonakis was there, and yes, he really launched into quite an attack against myself, and obviously I had a quips back, yes, I think I referred to them as Australia's weakest union, that they had a pathetic track record and other such comments which probably isn't conducive to a professional meeting, but nor is being asked outside before even being, you know, being provoked into making those sort of comments which I admit, in retrospect, were not professional. But nonetheless, it is true I got asked outside by him in front of the management. I don't know who he was trying to impress. I got called a number of names which I don't think are important to repeat, but nonetheless they were fairly derogatory. And after a while, it was fairly obvious that we weren't serving any purpose in this meeting, so I said, well, you know, it is getting close to 3 o'clock, the workers - we want to go and talk to the workers.
PN4178
Yes?---And the company had agreed that we would have a meeting with all the workers. At that time I wasn't aware and it wasn't until after Jimmy had left that meeting, the second meeting, like, with the workers, that the day shift were told not to attend, and notices have been put up instructing AWU members not to attend. It was my understanding that we would have a talk to the workers and why don't we let them decide what they want to do. I didn't want a big knock-'em-out - knock-'em-down, drag-'em-out fight over a demark, but it was fairly obvious the workers themselves were pretty upset with the way things were and I was led to believe prior to even going there that even a number of people on the day shift were unhappy with what had occurred with the EBA and the prelude to it and that when issues were raised about those workers' entitlements, they hadn't been addressed. Anyway, we had a meeting and I explained the processes to the workers of the EBA and I had a copy of the Act with me, and we went through the section 170LJ and other parts of the - it might have been asked at a relevant time. Shortly thereafter Jimmy came into the room with - and I don't think Dick Gray was there at that time, I think he rolled up a couple of minutes later. Excuse me, can I have a bit of water? And anyway, Jimmy came into the room and accused me of leading people on and telling bullshit and I think he used the term, "you are a fucking lawyer now, are you?", you know, things like that. It was fairly infantile stuff. And, you know, I kept my cool because I just thought it wouldn't have looked real good in front of people that - you know, we are trying to present ourselves as professional sort of representatives. It wouldn't look real good to get into a slanging match in front of people, particularly when they had heavier things on their mind than who was going to get six bucks a week. Anyway, after a while, it turned into a yelling match and he did accuse a lot of people of all sorts of things at that meeting, workers I mean, because workers asked him about things and he wasn't happy about it. He was - he looked like he was upset about being questioned about his behaviour, and he referred to Dragan Jovic as "a fucking scab" and he did use the words, "You are all a pack of fucking idiots anyway." And it was at that point, I think, where - you know, it had been going on for 15, 20 minutes. Jovic was toe to toe with him, had walked up and, you know, and they were yelling at each other, and he said, "You are all fucking idiots" and all that. And I just said, "Look, we are not getting anywhere, you know, just leave, just get out." You know, and I think it was at that time that I, sort of, became aware that there was no-one from day shift in there except for Cain who was there with Jimmy, too, and I think I said, "Come on, Dick, get him out", you know, and Dick Gray, you know, agreed and sort of went with him. Yes?---And we discussed things for probably another 10 or 15 minutes and then went in to management. This was some time ago, I haven't actually re-read my witness statement recently, so - I did write it, so I know it is correct though, your Honour.
PN4179
Yes?---Yes, he said, "Everybody knows you like it both ways" to one bloke. Now, while I have been out there, I have had - I have spoken to some of the other workers who have been there for a while. There is one worker there they call Tex, and I said, "Have you had any other organisers like him?" And he said, "Yes, the last bloke before him was as bad, that is why we had to get rid of him." He wasn't as abusive, but he didn't do a great deal for them when they raised matters. Anyway, what happened, we didn't actually put any formal claim on. I think prior to that meeting, following discussions with Mr Tiplady, I had spoken to Trevor Molksham at our national office and asked him to organise a notice of bargaining period so we could attempt to form a bargaining committee, which is quite common. I mean, I have been involved in a number of different sites where we have multiple unions on a bargaining committee. Even places where you could say there is, you know, overlap in coverage, and it has never been a real issue. In fact, in 1990 when I was running a dispute with a number of other officials for the AWU, the Esso dispute, we had something like nine unions represented on the bargaining committee, and whilst there were several hundred workers involved in that particular dispute, nonetheless, I have still been involved in other ones where there is a lot less and it hasn't really been an issue. And just relating to Mr Tiplady, I did have conversations with Mr Tiplady before I even entered the premises, and some of those conversations led me to conclude that we were going to have some difficulty and that is why I asked Trevor to also organise a notice under section 285B so at least we could go and talk to people over freedom of association if the company tried to deny our right of entry.
PN4180
Yes?---It didn't come to that, and I remember saying to Kelvin on the phone, look, don't worry about it. I am just - I am asking for that to be done to ensure that, you know, people don't come out and try stopping us from getting in to talk to people who want to talk to us. Yes, when we - when people - sorry, your Honour, I am looking for MFI1 and 2; I can't remember what I have done with them. Here they are. Maybe if I do it this way, your Honour. In front of me at the moment is a series of sheets of paper addressed to the manager of Boral signed and dated the 19th of the 3rd, with the back one being - the back two being dated 18.3.2002 and marked MFI1. I ask that they be marked as an exhibit, your Honour.
PN4181
This is both of them? Which one do you want marked first?---I think we have started - yes, look, we could mark them all together, your Honour, as the one exhibit if that is all right. What they are is a pro forma that was given to the workers who had filled out a membership application for the CFMEU. They are a form that was supplied to people who were in the AWU at that time who didn't want to be in the AWU and who didn't want the company taking money out of their pay.
PN4182
I will mark the documents which are a withdrawal of authority to deduct money from wages for remittance to the AWU, all of which are dated on or around 19 March 2002, as C12. And the second document concerning the same matter, but which documents are dated on or around 5 April 2002 as C13.
EXHIBIT #C12 WITHDRAWALS OF AUTHORITY TO DEDUCT MONEY FROM WAGES FOR REMITTANCE TO AWU DATED ON OR AROUND 19/03/2002
EXHIBIT #C13 WITHDRAWALS OF AUTHORITY TO DEDUCT MONEY FROM WAGES FOR REMITTANCE TO AWU DATED ON OR AROUND 05/04/2002
PN4183
THE SENIOR DEPUTY PRESIDENT: Yes?---Yes, your Honour. These - I have had situations in the past when I was with the Shearers and Rural Workers Union where workers have resigned from the AWU and asked the company to cease deducting dues for remittance to the AWU and the company has ignored those requests, so I thought it might be an idea, not knowing what the position at Boral would be at that stage, if those people who wanted those deductions ceased had a form to fill out. So I actually produced them myself and took them to the workers when I went and had a meeting with them in the car park and collected those admission cards. And I think it is an interesting point, your Honour, is that if you look at the very first name on the first withdrawal on exhibit C12, it is Miguel, and I think he is listed as a fitter. If I just go back to my own statement. Attachment SR1 is all of those application cards, and your Honour might note that on the third page of those at the top is Mr Passanise's application to join the CFMEU, and on that he has put his trade down as a fitter manufacturing engineer. The reason I raise that is that the - I was quick to form the view, and I think justifiably so, that what was occurring was that the AWU were doing another agreement and contrary to their own arrangements between themselves and the AMWU over membership, that they had signed up fitters at this workplace when the AMWU were unaware that the company had gone back to direct employment of fitters, and I will address that more in submissions later, your Honour.
PN4184
Yes?---But it may have been other people - yes, the others appear to be production in that C12, but Passanise was clearly a fitter. To the best of my recollection, these were given to one of the management team at the meeting of 22 March. I was informed some weeks later that the company was still deducting dues for remittance to the AWU against the express wishes of those people, that the company had been informed both verbally and through these forms that the workers didn't want them deducting dues for remittance to the AWU, but continued to do so. Notwithstanding if your Honour looks at that attachment again of SR1 attached to the witness statement, there is a deduction authority for union dues to the right of that card which has a perforation down the site for - you pull the little tab off and you give that to the employer which is what I attempted to do at one stage to be told the company wouldn't be deducting union dues for remittance to the CFMEU in the same manner they did for the AWU, notwithstanding them having any legal requirement to do so for the AWU. But you might note, your Honour, if you read that little card, that the company, even from when I did this witness statement - got to be kidding. Sorry, your Honour, I don't know if I have even dated it. I am sorry, I haven't even dated that. Well, my understanding is I did it around April.
PN4185
Yes?---But if you look at that, your Honour, the two applicants in this matter have had this for some time, and even after seeing this, they continue to deduct those union dues, and it states in that part there:
PN4186
...and this authority in writing also declares that from the date of my signing - my signature on this document, all authority given by me to deduct fees for any other union is rescinded.
PN4187
So, I mean, it is - while it is not as strong as the argument in these ones, it is still there. It was fairly obvious that the company - that these workers didn't want those dues deducted and it is fairly obvious that the company were persistent in continuing to deduct that money. And I raised it with them a number of times. In fact, every meeting - every time I saw Mr Olsen at the site at the times that they were actually letting us in, you know, I would say something like, "Well, have you stopped ripping money out of their pay yet" or - you know, words to that effect, because that was going on, and I think the response was always fairly consistent, "Well, the pay office is in Sydney and, you know, it takes time for these things." And, you know, it got to the point - I remember on the 5th we had a meeting out there around 5 April where I got them to re-fill out the forms because maybe they had lost them, and I left them with them that day, with the company representatives, so there was no doubt about the fact that, you know, these dues should not have been taken out of those workers' pay. In any event - I don't want to go on too long with this statement, but I think it is suffice to say that I reject any suggestion by any of the witnesses that I in any way went in, bandying around promises, making statements that we could improve anything specifically. I am pretty - I am always pretty careful with these things, your Honour, I have been organising for a long time. I don't think I - I can't recall a time where I have ever promised anything because, you know, things in industrial relations are just too fluid, sometimes you can't deliver, and I am not going to get a reputation of going out and promising things that can't be delivered. And contrary to the assertions made here by other persons, you know, I don't do that. I made a very conscious decision not to do it. These workers told me some terrible stories of what had occurred there, that they had had real issues that should have been taken up. They were clear bread and butter issues like the rates of pay. They were issues like health and safety, and I noted in the cross-examination of the other witnesses, people making grand claims about the AWUs ability in relation to health and safety, and I just wonder to myself, well, if this is the case, why do we have the company changing practices like the regular visit of the pumping truck that leads to the open flowing of effluent and grey water around the work site that influences the workers badly and can have a potential effect on their health and safety? Why - you know, why, when people raise issues like the payment of their rate for their RDO, it wasn't rocket science to fix it. You know, I raised it with management on 6 April directly with Mr Olsen about the RDO thing, "Oh, we are looking into it." That is why we ended up going to the Commission with it, and when we went to the Commission, it was only then that they actually agreed to rectify it and to back pay people what their legal entitlement was. I don't know what discussions, if any, had gone on between Mr Olsen and Mr Mastrandonakis, but what I do know is that nothing was happening as a consequence of the reporting, legitimate reporting of grievances by those workers. The other thing - what was that, about the change of the RDO. I think in one reading of the transcript of 8 May, your Honour would see that the reference to those RDOs was in fact - I claimed it was an illegal standdown because there hadn't been mutual agreement to alter the method of the use of the RDOs and therefore those workers were entitled, particularly given that some of them actually showed up for work on the day that they declared an RDO in February, a number of them showed up to work, and it was my contention and I would have argued that those workers ought to have been paid for that day without having the RDO utilised; in other words, it should have been banked. And the reason we actually withdrew that case, your Honour, and it was my decision to withdraw it, we resolved the other two points about the payment of the RDOs and the dues, the company agreed in the Commission to stop taking AWU money out of their pay.
PN4188
Yes?---But the other point which we were going to have arbitrated I backed off on because the legal firm for Boral had told us that - or had intimated somehow, I can't recall how they had done it, that they were going to do a full-blown argument on constitutional coverage, and this is even after the initiation of these proceedings. So, I mean, it is a tough - we have a tough enough job at the moment trying to do this as well as the other work that is piling up with week without having to do another case that replicates the arguments that are no doubt to be put here in submissions later. So I thought, well, look, we will leave it for the moment, withdraw the application, and if it is pertinent at a later time to pursue it. In any even, they are pretty well the issue. I just want to - quick flick through here. At no time did I say at any meeting with Boral management that I was going to pursue claims that - or conditions that existed in the brick industry, and the reason - when I had discussions with Mr Tiplady before attending these premises, Mr Tiplady said to me on the phone when I was crossing that Bolte Bridge there - I have got one of those hands-free in the car - and he goes, "Oh, look, the company can't afford any big claims. You know, if you are going to be seeking to bring in things like you have got in the brick industry, we can't pay it." And that was the very first reference to the brick industry in relation to this matter. And my response was, "Well, look, I don't know anything about what you can or can't do, I don't know, but I will not be, you know, going in there demanding the conditions of the brick industry." And if the company want to put Mr Tiplady in the stand - in the box here, I am more than happy for them to do it. Witness statement or not, he is here today, he can be pulled up here as a rebuttal witness. But I specifically said to Mr Tiplady, "We will not be pursuing as a matter of course the conditions in the brick industry", and why would I? I didn't know anything about this plant, I hadn't met the management there, I hadn't spoken to the workers in any great detail. I had spoken at that time to Mr Panagiotopoulos. So I didn't know what the - you know, I had only had secondhand information, I didn't know what - you know, what way to form a claim. And incidentally, as far as my operation goes for the areas where I have membership here, whilst - the CFMEU send a pretty standard notice of bargaining period out, and it has just got the usual thing, pretty similar to what the AWU would do with - in their Campaign 2000 and the AMWU would do also. When - what happens is we normally serve that on the employers.
PN4189
Yes?---We have discussions, right, after I have a meeting with the effected workers, and it is from the meeting of the effected workers that we actually draft the real claim that we use in the negotiations. And sometimes we get good benefits and sometimes we don't. I had to do an enterprise agreement for Johnson Tiles year. You know what the expiry of their previous agreement was 23 August. This was hot on the heels of a fairly contentious event that occurred there. It was hot on the heels of the retrenchment of 41 of my members out of 150, and the position of that operation was fairly precarious, it was on the edge of toppling over if the main man on the board of directors had have dropped his support, which he was considering doing, for the Australian operation, we would have had a shut factory on our hands. And we managed, myself and the management in that plant, managed to knock out a pretty good agreement without losing a beat. You know, so I just find it incredible and insulting to have to sit in the Commission and hear all sorts of derogatory comments made which are just completely without foundation. I must admit that I have probably been a little bit out of character in some respects this week, and I do resent having to sit here this week, and I don't wish to give that impression, and you know - but I know - it is sort of like when I have dealt with the AWU in the past; you know, you see certain things go on and it is like seeing a ghost and telling - trying to tell people and they look at you like you are a nut. And it is true that I have had a lot of conflict with the AWU in the past, but what has occurred here has got nothing to do with any concerted campaign by me or the CFMEU. It was legitimate; workers wanted to join our organisation. It is hard enough out there enrolling people. You have got to put up with the rubbish in the media, in the commercial media about the big bad bogey man of the trade union movement, particularly with our union being targeted the way it is publicly. It is no big secret that we are under the gun, not just from the minister for employers, but also by the general business community and the media, no big secret at all, and it is tough enough out there now doing what we do legitimately, and that is enrolling members. And when people come to you and say, look, you know, we want to join, what are we to do? Say, no, no, you are going to have to put up with - you know, when they have told you what has gone on - you have got to put up with that. Well, they had been to the AWU, they had seen other organisers, and there was a consistent - the AWU were consistent in so much as sending organisers out who, like Mr Wood, did not - you know, did not really sit down and talk and listen and act responsibly and appropriately for So, yes, we looked at the situation. In relation to our rules. I mean, I have never heard so much rubbish in my born day about, you know, being expected to go out with your constitutional coverage and show workers when you enrol them. I mean it - there is not one union official I have ever seen in the country that has ever done that. Not anyone in the AWU, certainly. And certainly no-one in any union that I know of, carts around their constitutional rule - coverage rules. It just - it is just rubbish. What our rules do say, and obviously I - I will have to go to Mr Olsen's - the attachment to Mr Olsen's statement to read them. And for the purpose of - I am happy to read this copy. It hasn't been proofed. It looks pretty - it looks pretty similar if not the same as the - what I have read in the past.
PN4190
THE SENIOR DEPUTY PRESIDENT: Which attachment is it, Mr - - -?---Sorry, your Honour?
PN4191
Which attachment?---I think it is the first one. I am not - attachment C. Sorry, it is to the AWUs - the AWUs submission, attachment C, which is eligibility for membership. Sorry, sorry. Attachment D. It has got "CFMEU" in handwriting up the top on the left. And then it has got "2 Constitution" and if your Honour goes to page 13 of that attachment, down the bottom of page 13, at capital M, begins the rule that, on the face of it, appears to be the rule that our divisional branch is reliant upon. The old Brick, Tile and Pottery rules.
PN4192
This is N?---Yes. Capital N. I will give your Honour a second to read that, and I will go to the part of that that - it actually continues on for the next two pages. Now the point that is really pertinent is the one that looks like it has been shaded a bit on the page 14, your Honour, about the third line down. It says:
PN4193
Roofing tiles and accessories including cement tiles only in the State of Western Australia ...
PN4194
But prior to that I will ask your Honour to go back a bit to the start of it. It says:
PN4195
Without limiting the generality of the foregoing, and without being limited thereby ...
PN4196
Now, I am not a lawyer, your Honour, but on the plain reading of that, which, you know, I think anybody but the legal fraternity were to read that, you would say, well, the following doesn't limit you. However, it gives some specifics. But when you go to page 14, it says:
PN4197
Roofing tiles and accessories including cement tiles only in the State of Western Australia.
PN4198
Now a lawyer's mind would probably pretty easily, pretty easily make either a for or against argument out of that wording. But if one were to exclude the reference to accessories from the reference to roofing tiles, then there wouldn't be any reference to:
PN4199
... including cement tiles only in the State of Western Australia.
PN4200
MR PARRY: I don't - this is all submission, really. I am not - this isn't evidence. Well, this is a debate we are all going to have at some stage, your Honour. I am just not sure we should be - - -?---Your Honour, I am about to make a point.
PN4201
THE SENIOR DEPUTY PRESIDENT: Hang on. Just wait a second for the - - -
PN4202
MR PARRY: I am not sure we should be wasting all of the time. And in my submission it is wasting time, going through a submission that will no doubt be put. We understand Mr Roach's position about that he does have coverage. We, in the AWU, say not. And that will no doubt be a matter of argument at the end of the day?---Your Honour, I was going to actually make the point of the reason I raised it. The point I wish to make is that as an official, and I think any other official, would read that as fairly - fairly open. It says roofing tiles. If it didn't make any reference to accessories it would just say roofing tiles. So, whilst it is a matter for submissions, and I agree with that, and I don't wish to labour the point, but I say under oath that as an official of the union whose job it is to enrol members, to me, that sentence there means roofing tiles. And I am cognisant of the point, and I have been in this Commission many, many times before, and behaved myself probably a damn site better than I have on this occasion. But I am cognisant of the point that when arguments like this come up, from the workers' side, they look at these things and they just see it for face value. I didn't go out - rush out and show them our rules or our constitution. All I knew was that we had roofing - roof tiles at Wunderlich. I knew they made roof tiles at Nubrik, but I didn't - but they weren't making them at that time. They are simply attempting to make them now, your Honour, and not doing real good either. But, yes. We cover roof tiles. There is no - there is no attempt to deceive anybody, or to achieve coverage that clearly isn't within the rules of the organisation. I must admit that I, like I said, I wasn't all that conversant with them at the time. But to my way of thinking, even with all the gobbledegook I know the lawyers are going to come up with, I am still satisfied that those rules give us the right to represent these people. I am also satisfied, though, and I feel more comfortably arguing this. I am also satisfied that morally we have the right to represent people, like - such as these workers. And quite frankly, your Honour, I haven't seen any evidence to suggest that anybody else has really tried to. Just one final point I wish to make in this statement. I vigorously oppose a legal firm being involved in these proceedings because I have felt that they would do what I think they do so well. And that is, pervert the Commission in its role of preventing and settling industrial disputes. Because I truly believe, based on my experience in both registered and unregistered organisations, that if the Commission were conned into issuing a 118A order in this case, I think it will in effect, in practical effects, not only deny representation rights to the workers who will have no other choice but to either be union-free, or just the AWU; but I think it will create more of a dispute than it will act to resolve. And I ask - my experience with the EP Robertson situation, which I raised earlier in cross-examination of Mr Shorten. The experience of seeing what happened to the people who used to work there, really, I don't want to - I never want to have to go through that again. But people, you know, if they are told that they are all - you have got to be in the AWU or nothing, sometimes they will accept it, and sometimes they won't. And I believe that the average person in the street automatically thinks that they have got the right to join whatever union they choose. They don't understand the complexities of certain legal arguments. I think they automatically assume they have that right. And I think if they are told that they don't, then I think that their reaction will be entirely unpredictable. That is the end of the statement in relation to the matter, your Honour.
PN4203
THE SENIOR DEPUTY PRESIDENT: Mr Roach, you are National Assistant Secretary of Victoria of the Clay and Ceramics Industry Divisional Branch of the CFMEU. Is that an elected position?---Yes, it is, your Honour.
PN4204
Thank you?---It is a bit of a mouthful, isn't it?
PN4205
PN4206
MR PARRY: Mr Roach, how long have you been with the CFMEU?---About 18 months.
PN4207
And in your time there you have only been employed in the Clay and Ceramics Division?---Divisional Branch. I was actually technically on the payroll of Victorian Branch whilst fulfilling the duties of looking after the members of the Clay and Ceramics Divisional Branch. They had an arrangement with Mr Molksham from the CCID to service that area, so I initially started on the Vic Branch payroll. But in February, the executive of the CCID passed a resolution filling the vacant position of Mr Bryant with me, and I subsequently moved to the payroll of the national office.
PN4208
All right. As I follow that, your experience in the CFMEU has essentially been in the clay and ceramics area?---Sorry? My - - -
PN4209
Your experience?---Well, I am - as an organiser, yes. I haven't actually worked as a rank and filer in that industry.
PN4210
All right. But you haven't worked as an organiser in respect of other divisions, have you?---Not in that 18 months. No.
PN4211
No. And before the 18 months, where were you?---I was the Health and Safety Inspector with the Victorian WorkCover Authority, from January 2000 until I think it was April 2001. I left there following the job offer from the CFMEU and following - there were a number of bogus complaints levelled against me and I got sick of having to front management and explain that I had nothing to do with them. And I felt there was a bit of a campaign going on, so I felt it was better to leave.
PN4212
As - I think you describe yourself as the sole official in that divisional branch of the CFMEU?---Yes. In Victoria. Yes.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4213
And you intend staying in that position for the foreseeable future?---Yes. Although I can assure you that I don't want to be organising the rest of my life. I think, you know, a reasonable period will be sufficient. I don't want to end up an old burn-out, and I don't want to end up going mad.
PN4214
Yes?---Not entirely mad anyway, your Honour.
PN4215
But for the next two or three years, presumably, you see yourself as continuing in that position?---Yes. I have nothing else in mind.
PN4216
All right. And you describe your duties in your statement as including the enrolment of members - employees seeking membership. Your duties, in essence, involve recruitment, don't they?---Yes.
PN4217
And that is an important part of your role as the Victorian organiser? To recruit members?---An important role of any organisation if it wants to replenish the people who retire, or who move on. Yes.
PN4218
And your duties, as you say in your statement, include the representation of the members' industrial interests?---Mm.
PN4219
How do you represent industrial interests?---Well, you usually gauge by - by conducting collective meetings with the persons that you are representing. You gauge what they want. You seek to achieve that by the best means possible.
PN4220
What sort of means do you achieve that by?---Well, I suppose in this role, to date, it has been stock standard practice, you know, within the parameters set down under the Act. There has been only one 24 hour wildcat stoppage while I have - in the area that I look after, since I have been there. Any other form of activity has been confined within the parameters of the Act.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4221
You are guided by the wishes of your members in what you seek?---Well, yes. Yes. Absolutely. In fact, I can't recall a time - well, I haven't. I haven't agreed to anything without taking it back to the workers. And even as late as - as late as last week, Wednesday last week, following a meeting with Mr Tiplady and Mr Bell from Boral, where they proposed a resolution to the matter that is currently before the Commission, and we came to an in principle agreement, which I am not disclosed to - or I am not - I don't propose to disclose, your Honour. I don't think it is appropriate. But that resolution I thought we had an agreement on. I went back Wednesday last week and had a meeting in the car park with the members who showed up, to at least inform them what the proposal was. And I recommended that we support it, notwithstanding my reluctance, because it was going to be better for them. They did support that. And then on the Friday, when the terms came through they were not what we had agreed to earlier. They went well beyond the terms of this application. And subsequently it appears we did not have a deal as late as Friday afternoon. So I suppose - sorry. I have gone off the track there. I forgot the original question.
PN4222
I think it was about following the wishes of your members?---That is right. Yes. I mean, it is a pretty good indication, even with the most unpalatable type of proposal, you still go back and explain it to the pool - to the people who ultimately have to live with the decision.
PN4223
And you leave it up to them to make a decision?---Subject - you know, you are there for guidance. I - there has not been an occasion where - where the members have instructed me on something where I haven't followed their instruction, even if it meant a lot more work or a lot more difficulty. I think it is important. I mean, you are there as a representative. And further to that, who gave us the right to - to act in their place when they are, you know, when it is against what they want. I am not saying that I support popular sentiment, but I think that - well, certainly in all of the experience I have had with these sort of matters that, you know, where you have got to go back to the worker, I have never had a time where I have felt compelled to go against them, because you have just got to be honest with them. Just tell them what the truth is, even if they don't like it. I have to stand in front of hundreds of - - -
**** STEVEN PAUL ROACH XXN MR PARRY
PN4224
All right. Well - - -?---Sorry. I am going to answer this fully. I had to stand in front of hundreds of workers at Cobar, in January 1998, 21 January 1998, where the company did a runner with their entitlements, and have people ask me, "Well, what are we going to do?" And at that stage, I didn't know. So I told them, "I don't know. We are going to have to think about it, and we are going to have a get together again tomorrow." But however difficult it may be, you have got to have a little bit of faith in people that they have got the sense to work things out. And if you can see something, not only can they see it, but you have got an obligation to say, "Look, mate. That is what it is. That is the reality. If we go down that path we could be in trouble. If we don't - if we go down that path, it might be all right."
PN4225
The members might want industrial action?---Well, if they do, I have advised based on the circumstances as to whether I thought it was appropriate or not.
PN4226
And if they voted it was appropriate, you would follow it?---Well, if they - if they proposed action and directed that, you know, that they were going to take it, well, what am I going to do? Hold them back?
PN4227
You are going to follow - follow the instructions of the members, aren't you?---Yes. Well, they are taking the action, aren't they?
PN4228
Yes?---I mean, I am not taking it for them.
PN4229
And you are not - - -?---I can advise them against it.
PN4230
And you are not going to - - -?---If I feel it is irresponsible I will advise them against it.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4231
And you are not going to take instructions from non-members, are you?---Depending on the situation. I have spent six years organising with the SRWU, drove around the back country. From time to time you would hit sheds where there were dual ticket holders, AWU and SRWU. I used to hold meetings, mate. I never discriminated against people. I never said, "You can't have a meeting." And quite often, quite often, there were blokes like Ricky Dighton out at Cobar who I used to help, even though he continued to hold his AWU ticket for traditional reasons. I never insisted upon him taking an SRWU ticket, nor did I with other people. And when the Cobar Mine stuff hit, the unions that were on the site who - SRWU. We ended up running the whole campaign. We had 120 people there. AMWU didn't even see their organiser for the fitters. Not once in the 11 months of that campaign. Didn't see the ETU bloke, even though they had members there. The AWU still had one member. An unfinancial member. But one member. A bloke called Alan Taylor. And if anybody ever wants to ask him, ring the Occidental Hotel, probably about 6 pm of a night, Alan Taylor will be down there. And just ask him what the SRWU did for him during that Cobar Mines campaign. We represented all of them. We never quizzed them as to why they wanted to stay with the - you know. We looked after people because they were workers, they were unionists, and what had happened to them was wrong.
PN4232
Before February or March, were you aware that there was a difference between terracotta tiles and concrete tiles?---What? In physical - you mean in physical appearance?
PN4233
Physical, yes. Yes?---Obviously, yes. One is made of concrete and one is made of clay.
PN4234
Were you aware that they were made by different processes?---Obviously, yes.
PN4235
Were you - - -?---Clay involves a kiln operation and concrete doesn't.
PN4236
Were you aware that they had different awards applying to them?---Yes.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4237
Were you aware that Boral Roofing at Dingley made concrete tiles?---Yes, I - yes, I can't tell you exactly when. I mean, I am pretty sure, probably on the first phone call I got from Ricky, I would suspect. But I knew that Boral weren't producing terracotta tiles in Victoria, or weren't to my knowledge. So I suppose I might have even assumed it. Just one point on that. While the AWU are the sole party to the Cement and Concrete Products Award, that award also underpins the EBA for our members out at C and M Brick, of which we have got about 30. And I have never seen any problem with that. I have also - remember - - -
PN4238
You have never covered concrete tiles in Victoria?---I remember at the AWU - sorry. Let me finish. I remember when I worked at the AWU there were a number of awards that underpinned areas where the AWU had agreements. Notwithstanding changes to the Act between then and now.
PN4239
You have never covered employees working on concrete tiles in Victoria, have you?---No. This is the first plant where we had members at a concrete tile plant in Victoria, yes.
PN4240
Right. Now, you said that you received a call from Mr Dingwall, and he wanted - - -?---Dingley.
PN4241
Dingle?---Dingwell.
PN4242
Dingwell?---Yes.
PN4243
He wanted you to cover tiles, and you said it was early in the morning?---Yes. That is my recollection, yes.
PN4244
And you seemed to give the impression that you sort of formed the view that it might have been concrete, or it might have been terracotta tiles - - -?---I said - I said - I suppose I did. It wasn't a real contentious issue, but - - -
**** STEVEN PAUL ROACH XXN MR PARRY
PN4245
Well, when you say it wasn't a contentious issue - - -?---Mm.
PN4246
It must have been a contentious issue, because this was an area you had never covered in Victoria before?---Well, I didn't really sort of think of it that way, Mr Parry. I just think - I just thought, well, we have got tile producers.
PN4247
Well, before - - -?---They makes tiles. We cover people who makes tiles. I suppose we can go and have a talk to them. That is - - -
PN4248
But before that call had you ever given consideration to whether your union had coverage of concrete tiles?---I don't think I had.
PN4249
Now after you received that phone call did you make those inquiries within your union then?---No. I had other things on my mind, to tell you the truth.
PN4250
So the issue that has been raised by the company when it raised this argument about you not having constitutional coverage, that came as a bit of a surprise to you, did it?---Not entirely. I mean, in my experience, when there has been demarcs involving the AWU and a company, they will pretty well throw anything at you. My experience in the past is that they have even fabricated evidence and lied under oath. Perjured themselves. Nothing ever seems to happen to them, but in my experience that has occurred. Yes. So it doesn't surprise me what you would throw at me, Mr Parry.
PN4251
But can I take it from your evidence then that the first time you considered in any serious sense whether you had constitutional coverage was when Boral Roofing raised the issue with you in correspondence in May?---Yes. Because they were using it as a pretext to deny right of entry that I thought was pretty clear under the Act.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4252
And before that you - - -?---Just hang on for a tick, because I am going to make a comment about that. Section 285B is pretty clear. And I still believe the company are in breach of it. I wanted our national office to pursue a Federal Court action against Boral over that. Both the 9 May and the 14 May incidents. Because they, apart from being offensive and a downright disgrace, I don't know if you have ever had four people standing in front of you, you know, with one of them trying to effectively shirtfront you to get you - push you out into the rain. Have you ever - I don't know if you have - that has ever happened to you. I find it pretty offensive. And then to have them accusing you of impropriety is even more infuriating. But those - but if you look at the Act it doesn't say anything about constitutional coverage. It says about members. And some of the hesitation that other officials had about pursuing that was that, because of the arguments that they knew were going to be developed through this case here, they didn't want somebody like you showing up at the Federal Court, Mr Parry, and making these arguments that what in fact that section of the Act meant was a member who was under the constitutional coverage. Now, I don't agree with them. I don't agree with them on that. But that is the reason we never pursued any action over that right of entry thing. And, you know, I just find it incredible that things have gotten to the stage they have.
PN4253
All right. Before that right of entry issue came up you didn't care whether you had coverage or not, did you?---Before the right of entry stuff come up?
PN4254
Before you were told by Boral Roofing that you didn't have constitutional coverage, you didn't care whether you had constitutional coverage, did you?---Well I - I didn't even - I didn't think it was an issue, Mr Parry.
PN4255
Right?---I - and I still don't actually. But I do know that you are going to try to make something out of it that isn't there. I have seen lawyers in this Commission argue that that isn't brown, that is blue. And somehow, they manage to convince everybody that it is.
PN4256
You didn't think it - - -?---So it doesn't surprise me.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4257
You didn't think it was an issue because you didn't even think about it, did you?---Well, I certainly didn't give the same gravity to it that you and AWU are.
[12.53pm]
PN4258
You didn't think about it before you were told by Boral Roofing that you had - didn't have constitutional coverage, did you?---I tell you what I thought of when you came up with that argument. I thought, here we go. They are that desperate they will dig up anything.
PN4259
All right. And you went to your national office, and some hesitation of other officials had about pursuing it. The fact is, Mr Roach, your union made a conscious decision not to challenge that position taken by Boral Roofing at all, didn't it?---It made a decision that it - not to pursue that until this matter had been determined in some ways, because the arguments would have been the same, in relation to the issue of the rules, and then could have been used to knock over the case in the Federal Court, I suspect.
PN4260
Well, when you say - - -?---Now the - as far as my - the gravity, you know, that I put on it. You know the first thing that crossed my mind about when this issue first came up was, you know, what do the people - what do the workers want? Now, it may not be fashionable these days to take that into account, but it is certainly the first thing that I take into account. All the other stuff, you know, you look at as you go. But contrary to the assertions expressed by Mr Shorten in the witness box yesterday, I do happen to support orderly industrial relations; I do happen to support the notion generally that constitutional coverage, unless there is a pretty significant reason, constitutional coverage should be a pretty good guide for the unions, generally. But, I see nothing wrong with some unions having overlapping coverage. There is plenty of evidence that that occurs in this industry, in the concrete products industry and there has never been a problem.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4261
Your union was written to by Boral Roofing saying, "Our view is you don't have constitutional coverage. If you have the view you do, write back and tell us how." Your union never did, did it?---No. That was your - that was the legal firm that you are acting from, Mr Parry. The legal firm that has been steering this company from at least 9 May, probably before, on this issue. It is a similar situation to what happened actually with Robinsons, where Freehill Hollingdale and Page effectively sidelined the employer, who told me privately that he couldn't do anything, even though he wasn't totally in accordance with what was occurring. And that is one of the reasons that I harbour a certain amount of hostility towards the legal firm, in this instance, is because they really have embarked on adventurism of the same type that Freehills did in the EP Robinson dispute. They make their money, they nick off, and they leave these workforces absolutely destroyed.
PN4262
So it was your antagonism towards the law firm that you led you not to replying to that correspondence, was it?---I felt - I felt that they had a cheek, with the tone and that correspondence and the contents of it. Who do they think they are to set themselves up as judge, jury and executioner on a worker's entitlement to pay who they want to represent them.
PN4263
The position is, it is, isn't it, Mr Roach, that before you had got that letter, you didn't care one little bit whether you had constitutional coverage of these employees or not?---No. My position was that I assumed we did, and I still do.
PN4264
And when - - -?---And - and the reason for my hostility about legal firms doing that, is they go beyond legitimate advice. They come into this Commission like they have some automatic right. They turn things that are relatively simple into very complex matters, well beyond the reasonable knowledge of the people who are affected, and they get up in public and masquerade as if they support freedom of association. They assist with the drafting of some of the most terrible and medieval legislation this nation has ever seen. And then they come in here and run technical legal arguments as to why a worker ought be compelled to join one organisation that they happen to be chummy with, or none at all.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4265
Thank you. Thank you for that?---So you wonder why I am upset, Mr Parry. I am a trade unionist, have been all my life, and will continue to be. I am in a diminishing minority unfortunately these days. Nonetheless, I hold very strong views on this matter, which you are in no doubt of now. And I have very strong views on the tone and the contents of the correspondence that was sent to us by your legal firm.
PN4266
Was it your decision not to respond, was it?---I saw it and I just - yes, yes. Because if I had have responded, I am sure that the response would be tabled here today as some - some evidence of inappropriateness.
PN4267
THE SENIOR DEPUTY PRESIDENT: Is that a convenient point, Mr Parry?
PN4268
MR PARRY: I am in your Honour's hands.
PN4269
THE SENIOR DEPUTY PRESIDENT: I will adjourn this matter until 2.15.
LUNCHEON ADJOURNMENT [12.59pm]
RESUMED [2.20pm]
PN4270
THE SENIOR DEPUTY PRESIDENT: Mr Parry?
PN4271
MR PARRY: If your Honour pleases.
PN4272
Mr Roach, on 18 March you attended a meeting with a Mr Panagiotopoulos at the Hungry Jack's in Dandenong?---That sounds correct.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4273
And you gave him a number of cards?---Mm.
PN4274
To enable people to be signed up?---Yes.
PN4275
Did you know at that stage they were AWU members?---Yes. Most of them were, yes.
PN4276
And you - did you know at that stage that the AWU had a history on the site?---Well, I assumed as much. Yes.
PN4277
Were you aware that Mr Panagiotopoulos was the delegate for afternoon shift?---Yes, I might have been. I might have been. Yes.
PN4278
Now, you - I think on the first day of these proceedings, back in - 28 March 2002 you told the Commission then what you described as "a few of the facts." You told the Commission that you met John at Hungry Jack's in Dandenong?---Mm.
PN4279
He said:
PN4280
There are a lot of people who wanted to join. They are unhappy with the AWU.
PN4281
This is at paragraph 106. You said:
PN4282
The AWU hadn't consulted with them.
PN4283
And you also said:
**** STEVEN PAUL ROACH XXN MR PARRY
PN4284
They felt they were going to be done in by what they felt was an inferior agreement.
PN4285
?---Mm.
PN4286
Is that what he told you? That there was an inferior agreement on offer?---Well, they told me that they weren't happy with it. Neither the proposed contents of it, nor the method by which it had been, for want of a better term, negotiated.
PN4287
And you then said to the Commission, on 28 March, after - and I will read it to you, from:
PN4288
And they felt that they were going to be done in by what they felt was an inferior agreement.
PN4289
?---Mm.
PN4290
And you went on and said:
PN4291
And I must admit that on a brief perusal of their proposed document it certainly doesn't stand up, compared to a number of other similar operations. I arranged to meet him the following day, 19 March, in the car park of the premises, but adjacent to the workplace.
PN4292
Now, if I could go back to what you said to the Commission:
PN4293
I must admit that on a brief perusal of their proposed document it certainly doesn't stand up, compared to a number of other similar operations.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4294
Now, as I understand the position, you saw the proposed agreement when Mr Panagiotopoulos showed it to you at the Hungry Jack's?---No. He didn't have it there.
PN4295
You say he didn't have it?---Not there. No. I might have seen it on the following day. I believe I was given a copy in the car park.
PN4296
Now when you - - -?---I think I might even have that copy in my bag, actually. That original one he gave me.
PN4297
When you told the Commission on 28 March, that:
PN4298
... it certainly doesn't stand up, compared to a number of other similar operations.
PN4299
?---Yes.
PN4300
What were the other similar operations?---Well, I mean, I was expressing an opinion to the Commission, based on my experience in similar operations. Similar operations would include brick and tile plants that I was familiar with.
PN4301
So you were telling the Commission - - -?---Mm.
PN4302
- - - on 28 March that as far as you were concerned, the proposed EBA didn't stand up compared to brick and tile operations?---Plants that I was familiar with and I - yes.
PN4303
All right. Now, who did you have with you in the Commission that day? On 28 March?---I can't recall. Mr - I think Mr Royale and Mr - hang on, sorry. Mr - - -
**** STEVEN PAUL ROACH XXN MR PARRY
PN4304
Panagiotopoulos?---Panagiotopoulos. I believe they were there with us that day.
PN4305
You were making no secret, around 28 March, that as far as you were concerned the proposed EBA didn't stack up compared with other EBAs in the brick and tile industry, were you?---Yes, I - well, I had no problem expressing that view. I see no reason why I shouldn't. I think it was fairly accurate then, and I think it is now.
PN4306
And it was a view that you were happy to express to the employees?---Well, yes. I would imagine, I suppose so, yes. At a later time. Yes, but I - at 19 March was the earliest possible date I could have - I could have obtained a copy to peruse it. And I didn't peruse it there and then. But I do recall a number of the workers who attended that car park meeting on the 19th had conveyed to me that they were dissatisfied with the contents of the agreement and the methods used negotiating it. They raised issues such as improvements to long service leave, income protection insurance, and I think even redundancy. Those were issues that were raised to me. It is quite possible in response to the raising of those issues that I made comments then about what - what we have in other places. But I certainly didn't go into the place telling people, "Join up and you will get this or you will get that." These people had already made their decision. They had filled out their cards and returned them to me before I had even seen the contents of their proposed EBA.
PN4307
But you made it quite clear, at least by the middle of March, that as far as you were concerned the proposed EBA didn't stack up compared with brick and tile EBAs?---No. I - and it is assuming I told them around the time of the Commission, I would have told - if I expressed those views, it would have been later in March. Around about that 28 date.
PN4308
Now, by so telling employees that presumably - I will withdraw that. Presumably you had told them you had experience in negotiating such EBs at other brick and tile operations?---Well, can't specifically recall it, but if anybody asked I would have told them. Yes.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4309
What I am suggesting to you is that you made it quite clear to them that these terms and conditions from brick and tile were conditions that should be pursued?---No. I can't say that I said that, because I don't know that I did. But, now you raise it, if somebody had have put the proposition to me I think I probably would have agreed to it, with them.
PN4310
Yes?---You know, I see no reason why worker A gets heaps more than worker B when they are doing comparative work.
PN4311
Yes. You see, I suggest to you that it - you didn't promise them you were going to get these conditions, but you did make fairly clear to them that these were the conditions you were going to pursue?---No, I didn't, because I didn't know the - I didn't - I hadn't had discussions with the company at that time. I didn't know. What Kelvin Tiplady told me earlier may well have been correct, so wouldn't it have been responsible to ascertain the standing of the company before making, you know, vigorously pursuing a claim that may well sink it.
PN4312
After you had met the employees on 18 March, there was the bargaining notice that was provided to the company, wasn't there?---Yes.
PN4313
And it is dated 20 March 2002?---That is right.
PN4314
Can we assume that after you met with the employees on 18 March you spoke to CFMEU head office and proposed that a bargaining notice be served?---Yes. Yes.
PN4315
And they drew that up on 20 March 2002, as best we understand?---Yes. It looked pretty similar to all the other ones that had been issued, to kick off negotiations. Like I said, I used to go and have a meeting with the workers and then get what they wanted. And that would form the basis. I have not, in all the negotiations of the agreements I have done whilst at the CFMEU, I haven't vigorously pursued income protection insurance as much as other
**** STEVEN PAUL ROACH XXN MR PARRY
improvements. But they generally - I think they are in that general notice of bargaining period. Suffice to say that - and I didn't really pursue this, because I don't know how important it is. But I noted in Mr Olsen's statement earlier that he had made reference to the AWU lodging a notice of bargaining period, and I don't know what was in theirs. It may well have had the conditions that the employees were talking about before I even entered the site.
PN4316
You see, you said then that the notice of initiation of bargaining period was the same as had been issued elsewhere. When you say the same as issued elsewhere, you mean the same as you generally issued in the clay and ceramics industry, don't you?---I - yes. Yes, it looked similar to that. And I would assume that that is what has occurred. That is why they have - they haven't checked the wording of the award they wish to underpin it.
PN4317
Yes. Because the Clay and Ceramics Industry Brick and Terracotta Tile Manufacture Victoria Award 2000 - - -?---Yes.
PN4318
Boral aren't a respondent to that, are they?---No. Sorry, no. Boral Brick are. But I - - -
PN4319
Boral Roofing?--- - - - think it is a separate legal entity. Yes.
PN4320
And the scope of that award doesn't cover the people that work at Boral Roofing making concrete tiles, does it?---I will take your word for that. I - - -
PN4321
Not something you investigated, is it?---No. Well look, the notice of bargaining period would have gone straight to the company and the Commission and a copy would have been sent to the office. And I must admit, I don't even think I read it. I probably filed it.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4322
See, on the face of it, it would suggest that your union is pursuing the same conditions as are in the Clay and Ceramics Industry Brick and Terracotta Tile Manufacture Victoria Award 2000?---Yes. Well, I don't know that that award would be appropriate to those premises without doing a proper review. And I - I have - I am aware that at least one other concrete products plant, that being the C and M Brick Plant, where the CFMEU had an EBA underpinned by the Cement and Concrete Products Award, had been in existence. If I had have been asked by the national office for my advice on that matter, it would have been to put that into the notice of bargaining period in preference to the Terracotta Tile Award.
PN4323
So what I suggest to you is that by making that claim in the notice of initiation of bargaining period it is consistent with you saying two days later, to the company, that you were pursuing brick conditions?---Well, I didn't say that to the company. At no time did I ever say that to the company. I have given evidence on that before and I am under oath.
PN4324
Is it possible that in this meeting on 22 March, with company officials present, and in the various debates that were going on, that you said that you were pursuing brick conditions?---No, it is not possible. But it is highly probable that one of the management team members in attendance raised that prospect. But it is - - -
PN4325
Well, do you remember that?---It is not possible that I did, because I have at no stage had it in mind that we were going to go in and just go and replicate the conditions. But I, you know, particularly given I hadn't even spoken to the blokes. And I might add with that, that the agreements that we have done, I think I raised - I touched on it before. But the conditions pursuant to EBAs that have been obtained for my members in the clay and ceramics area varied. You know, you have achieved - you have achieved what you can in one area. It may not be appropriate for another, or the members might want you to pursue, you know, item A over item B with more vigour. So it just all depended on what the workers themselves wanted, and what was obtainable and appropriate at the time.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4326
But you had met with the workers by 22 March, hadn't you?---Yes.
PN4327
You had spoken to them about the inadequacy of their current enterprise proposed agreement?---Yes, that is right. But I think you have got to keep in mind that we had a hurdle to get over in relation to ascertaining what we were going to do. To my way of thinking, I would have liked to have worked out where we were going with the membership. If there were a body of people who wanted to retain membership with the AWU, fine. Then, to my way of thinking, the appropriate way to progress would be to form a single bargaining unit, like we do in other areas, or have done in the past. And pursue the - whatever claim is appropriate and relevant as a collective.
PN4328
That is a proposal that you never put, either to the company or to the AWU, at any time, have you?---Well, that is not true. In fact, I think it is in my witness statement. At point 20, I say:
PN4329
As things currently stand, many of the CFMEU members feel vulnerable to being injured in their employment due to their associations with the CFMEU. And officers of the company are reported to be making threats to workers designed to discourage union activity by CFMEU members, while at the same time encouraging AWU membership by formerly non-union members on the site.
PN4330
Sorry. That is the wrong one. Sorry. Point 19:
PN4331
There is no impediment to the CFMEU being party to an enterprise agreement with the AWU, AMWU and Boral.
PN4332
Yes?---And that is - it is very clear what I had in mind, and I think I even raised it with members, with management of Boral in any event.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4333
You have never raised with the company or the AWU the creation of a single bargaining unit, have you?---I have, Mr Parry. I believe that is what I just said.
PN4334
Now, do you recall at this meeting on 22 March talking about re-opening negotiations on the EBA?---Yes.
PN4335
All right. And do you recall raising with Mr Olsen the possibility of further action being taken?---No.
PN4336
Possible that you did talk about taking some action?---Industrial action, do you mean?
PN4337
No, just taking action?---Well, I don't recall saying it. I don't know why I would have said that, unless there was some veiled threat or some reference. But, let me make it abundantly clear. There was no threat made. There was no threat intended. And if that is the suggestion, then that suggestion is very mistaken.
PN4338
Do you recall in this meeting saying words to the effect that you were going to pinch the members of the AWU?---I did not say that. I am amazed that Mr Olsen put it in the statement. I did not say that. I think he is referring to an alleged argument between myself and Mr Mastrandonakis. Mr Mastrandonakis made plenty of reference to me pinching members. I did not. And further to that point, in the part of Mr Olsen's statement, he accredits me with saying, at point 35 on page 12, after Jimmy is supposed to have given me a bit of a spray on what I was doing there:
PN4339
Steve Roach replied words to the effect, "Yes, you were right, and we are going to pinch them here just like we did at CSR."
**** STEVEN PAUL ROACH XXN MR PARRY
PN4340
Yes?---Well, that is just absolutely ridiculous. We didn't - I haven't pinched any members. Well, I will put it this way, to my way of thinking I haven't pinched any members anywhere. To what an AWU official might describe as pinching. In other words, enrolling people who seek membership with us. We have signed up people at Boral Roofing and at Austral Brick in Queensland. But haven't signed up anybody at CSR.
PN4341
So you dispute the part of it which talks about you signing up people. But what I suggest is you said words to that effect in that meeting on that day?---No.
PN4342
You don't recall saying them?---No, I do not.
PN4343
It is possible you did, but you don't recall?---No. I didn't say that. I said no, I did not. It is not - I - to my way of thinking it is not possible that I said that.
PN4344
The fact was though by that time you had pinched some of the members of the AWU, though?---I hadn't pinched anything, Mr Parry. I had enrolled people who sought membership who needed help.
PN4345
But you knew when you signed them up they were AWU members?---That is right.
PN4346
Don't you consider that to be pinching members?---No, I don't. But I will put it to you this way. If a client came to you and said they got a rough deal off another legal operator, wouldn't you take it - take it as read that you are entitled to represent their interests?
**** STEVEN PAUL ROACH XXN MR PARRY
PN4347
Well, I am not so concerned as to whether you are entitled to represent them. I am interested in the transaction whereby they move from one union to another. What I suggest is you pinched them?---No. Well, that assumes, of course, that they have no mind of their own and no right to choose, doesn't it? I didn't pinch anybody. I enrolled people who sought membership of our organisation which is entirely responsible and appropriate under the circumstances. We provided advice and support where we could, which has been made more difficult over time. And we actually delivered, Mr Parry. We delivered on a basic fundamental issue that, as a trade union official one would be absolutely ashamed to think that they couldn't.
PN4348
What did you - - -?---We got back their legal minimum entitlements.
PN4349
Now, before we get to - to you getting them back their legal entitlements, you had no compunction about signing up the fitters and electricians?---The fitters and electricians, under our rules, if we wanted to sign up fitters and electricians, whether it being Boral Roofing or whether it being the clay industry, we are entitled to. I had a discussion with the AWU - AMWU official, and the - a number of the fitters at some time, it might have been late March or early April, about what do we do. The fitters - to be honest, the fitters expressed to me that they were happy to hold dual membership to help their mates out. That is - so there is no - there is no big issue about it. I am satisfied in my own mind that if the fitters were to want to go to the AMWU or stay with them or, you know, repudiate their membership of the CFMEU and - so as the AMWU was the sole vehicle for their representation, I would be satisfied that that in fact would occur. There would be legitimate representation for those people. However, I can't say that I would be satisfied that the production workers are in the same boat.
PN4350
Well, the AMWU are at present representing the industrial interests of the fitters and electricians and trades assistant employees, aren't they?---Well, as far as I am aware, certainly most of them.
PN4351
Yes. Now, you wanted the meeting on 22 March to have all employees present?---That is right.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4352
I suggest to you that you wanted the day shift employees present?---Absolutely, yes.
PN4353
So you could be critical of the performance of the AMW - I am sorry, the AWU?---Well, I don't think I really needed to, actually. I wanted to - - -
PN4354
Right. And also that you would tell them that you would - your proposal was that there should be new negotiations for an EBA. Right?---Could I answer that in two parts? That is actually a two part question. Firstly, I wanted to talk to the - for the - to the day shift, so we were all whistling off the one sheet. It had been conveyed to me by a number of workers in the preceding couple of days there had been all sorts of porky pies being spread by the management and AWU shop steward, at least. And that I felt that it was better to get everybody together. Now, I am trying to remember. I can't recall exactly. I might have even put a proposition that they all determine as a group where they wanted to go. Whether it be with the, you know - I can't say for sure. I mean, it may well have - I may well have adapted to that thinking, had they all been present. I didn't need to rubbish the AWU. It was fairly obvious that people weren't happy, they were the ones who were telling me what was going on. I don't think it is any big secret to anyone who has watched television in the last five years that I don't get on famously with the AWU. But nonetheless, I didn't go in there to rubbish them, and I don't think that that really wins you that much, to tell you the truth, as an official, they just want to know what - you know, if they can join, what the - you know.
[2.45pm]
PN4355
Your purpose was to encourage them - - -?---No, I will just answer the second part of your question because I don't want that going unanswered, which was to do with - what was - - -
**** STEVEN PAUL ROACH XXN MR PARRY
PN4356
New negotiations for the EBA?---That is right, yes. No, I made it clear to the management from the outset, when I first spoke to Mr Miller when I was crossing that Bolte Bridge, I think, on the 18th or 19th, whatever date it was, of March, I made it very - crystal clear to him based on the discussions that I had had. It must have been the 19th, because I think I had spoken to the blokes at that time, that they were going to have to open up negotiations anyway because they hadn't complied with the statutory requirements, people hadn't been properly consulted, they hadn't had a proper vote, and, you know, it really was a mess, and that is where I think Mr Tiplady conveyed to me that the company couldn't afford to pay the rates and conditions from the brick industry, to which my response was, well, we are not trying to replicate the brick industry, we want to have a talk about - obviously want to have a talk about it, if there is room for - I think I said to him if there is room for improvement, obviously we should try to obtain that; if there is not, well, let's be honest with the blokes and have a good talk about it.
PN4357
Your purpose in wanting to get day shift involved to pass along these messages was to encourage them to leave the AWU and join the CFMEU, wasn't it?---Look, if they had have chosen to do that, I wouldn't have knocked them back, but I wanted them all together because I got sick of all the deceit and the lies that had been reported back to me just prior to it. You have got to understand, Mr Parry, it is not the first circumstance that I have been through with this, you know, and I mean, that is part of the explanation for my hostility to these proceedings is that to me it is the same old same old. I have been in this Commission many times, generally with an unregistered organisation, with the AWU running with the management against what I perceive to be the best interests of the workers. So, you know, it is not as if I am unfamiliar with this territory, it is just that, you know, I really don't have time to muck around, go - and starting blues for no reason at all in AWU places.
PN4358
Your actions through March were designed to encourage all the production employees at Boral Roofing to leave the AWU and join the CFMEU?---I mean, I am not going to pretend that I wouldn't have been happy with they had have, but I just - I think you are beating it up a bit to suggest that, you know, I was a man on a mission to go after day shift, it is not like that at all. Quite frankly, in the 15 years that I have been organising, apart from that 15 months at WorkCover, I never put anyone's arm up their back for union membership. I would be happy for you to give us a couple of instances, but I can't recall a time where I have.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4359
Your circulated a memorandum in April?---That is right, yes, the green one.
PN4360
The one, "Why won't they let you decide your future?" Do you have a copy of that in front of you?---Yes - actually there would be one in here, wouldn't there, in Mr - I think - - -
PN4361
I will hand you a copy?---I think I have got one in Mr - - -
PN4362
Olsen's statement?---Mr Olsen's statement, is it? Yes, look, if you have got a spare - have you got one?
PN4363
Yes?---Might be easier.
PN4364
Now, this is your document, you drafted it?---Yes.
PN4365
The first paragraph refers to:
PN4366
The employees be given democratically the right to determine whether they wish to be represented by the CFMEU or the AWU.
PN4367
See that?---Yes.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4368
Making fairly clear there that it is an either/or situation, isn't it? You are saying to the employees here either it is the CFMEU or the AWU, aren't you?---There was a proposition that I believe we put to the Industrial Commission during conciliation proceedings on 3 April and we were simply reporting that that was the proposition that we put and we were happy to live by it.
PN4369
That was the position you were taking though over this period of March/April that it really should become a CFMEU site?---Well, I had no problem if it did. And conversely, if we had had a full meeting and let's say there were 24 production workers present, and 20 of them said, look, we want to stay with the AWU, I think my advice to the other four would be, well, mate, I think - you know, I think you are probably better to sort of bear and grin and see what you can do internally. But, you know, you have got to look at it properly, Mr Parry. You know, this was an entire - well, more than an entire shift. This was 17 people out of probably less than 30 who moved en masse, you know, spontaneously. Normally, when - when I have seen a movement out of one union into another in the past, what happens is you get a body and then you get a trickle and, you know, on a percentage basis, this was pretty significant, so it led me to conclude that they were really on the nose in the place.
PN4370
The memo goes on in the third paragraph and refers to the AWU being a stooge for management; can you think of much greater criticism that one could make of a trade union?---No, I can't, but I think it was a valid criticism given that their behaviour led me anyway to conclude that that is what they were doing.
PN4371
The purpose of this memo was to give the employees at Boral the position that the AWU was not a union worthy of membership?---Actually one of the - - -
PN4372
Well, is that the position?---Yes, that is probably - that is one of the reasons, but that doesn't tell the whole story. Another of the reasons was we were fed up with having management running around promoting the AWU and rubbishing us, and that is what I had reported back to me that was going on.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4373
And when you say:
PN4374
The CFMEU, the real union on the job -
PN4375
you are saying you are the only union that can properly represent their interests, aren't you?---Well, I believed then and I still believe now that the evidence that we have seen over the last few days clearly indicates that we are the only organisation in a recent past that has actually delivered anything practical for those workers as far as their entitlements go, and that the AWU, in the opinion of more than half the entire workforce, has been seen to be shmoozing up to the management.
PN4376
So it remains your position, doesn't it, that the AWU is not a worthy union and the CFMEU is the only union that can properly represent their interests?---Based on the behaviour over the last, say - what, eight months, I would say yes, but I want to qualify that by saying that I have been bluing with the AWU for a long time, and in all that time I don't blame all their officials, Mr Parry, I have met a number of them that are good, decent people, who do try to do the right thing. I have met Mr Wood on numerous occasions and had great differences with him, but I have never seen him go and abuse workers the way that I have seen other AWU officials do it, and I suppose my thinking and evaluation on the issues of the two organisations is based on the weight of how - you know, what numbers of good responsible trade union leaders and officials that are in one organisation as opposed to the other.
PN4377
So the sentiments you expressed in that memo that you have in front of you, you still hold?---Sorry?
**** STEVEN PAUL ROACH XXN MR PARRY
PN4378
You would still write the same memo today, wouldn't you?---Yes, yes, I would, because that is - the prelude to the "ask yourselves" reports what occurred, and I recall, you know, while Mr Cain expressed under oath the other day that he was, you know, that he was all upset about me allegedly accusing the workers of being too dumb, if you read that paragraph properly it doesn't. What, in fact, occurred on 3 April, and I can't recall if you were there, Mr Parry, but what, in fact, occurred was that we proposed that there be a ballot and her Honour in conciliation proceedings put that proposition to Boral and the AWU to - - -
PN4379
I think there is some rules about - - -?--- to which they - to which they rejected the offer - - -
PN4380
- - - mentioning conciliation proceedings on the record, Mr Roach?--- - - - to which they - - -
PN4381
Are you aware of that?--- - - - to which they rejected the offer.
PN4382
THE SENIOR DEPUTY PRESIDENT: Mr Roach?---Sorry?
PN4383
MR PARRY: Are you aware there is a section of the Act about not referring to matters in conciliation proceedings in the Commission?---No, I am not, I am sorry. But I am trying to explain why this notice was written the way it was. I am sorry, I will try to minimise.
PN4384
The purpose of the notice was to encourage people to leave the AWU, wasn't it?---The purpose of the notice was to explain our position.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4385
And the purpose was to encourage people to join the CFMEU?---It - I mean, I am not going to sit here and suggest that there was no consideration given to that possible consequence, but I am not going to sit here and also say that it was the primary purpose. I was sick to death of hearing back management - middle management running around the place saying all sorts of things to people about - that they can't do anything for you and they are not the real union and all the other stuff that goes with it. We had a very active campaign by Boral management and the AWU in conjunction with each other to rubbish the CFMEU and promote the AWU, and we sought to counter it.
PN4386
On about 16 April I think you were walked around the factory with company management, inviting day shift employees to a meeting?---That is right.
PN4387
They didn't attend the meeting, did they?---No, they did not.
PN4388
The reason you wanted them to attend the meeting was so that you could continue your messages of criticism of the AWU and endorsement of the CFMEU as the appropriate union for representing them, wasn't it?---Well, firstly, I think you have got to understand, I hadn't even spoken to many of those people at that time, and I would have at least liked the opportunity to explain myself and why all the hoo-ha was around that site from our side and let them make a reasoned decision themselves.
PN4389
It was a recruiting exercise, wasn't it?---Well, I didn't go in there with bells and whistles on, Mr Parry, and I wasn't touting for membership. In fact, if that is what you are getting at, why don't you present one of the workers beyond Mr Cain from the day shift so we can present the evidence to her Honour?
PN4390
You were still on 16 April seeking to recruit members that were AWU members at Boral, weren't you?---If they had offered for enrolment, I would have given them an admission card.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4391
Indeed, the only thing that ever stopped you in your recruitment exercise was Boral Roofing taking the position that you didn't have eligibility to come on site, wasn't it?---Boral Roofing set themselves up as judge, jury and executioner on our constitutional validity or our rules of coverage, and then in a pretty heavy handed way, you know, impeded my access to the site where our members were. I did it by the book, your Honour. That is what we are supposed to do, I believe, and that leads us to where we are today.
PN4392
If you could gain access to the site, you would still want to continue with the exercises you were undertaking in that period immediately before, wouldn't you?---Today? Don't know that I would. They all had an opportunity to attend that meeting, Mr Parry. They didn't attend. They weren't interested. Why would I go chasing them?
PN4393
You gave some evidence, I think this morning, about the withdrawals of authority. You said you notified the Commission about these matters?---Sorry, what was that, the?
PN4394
This is the deductions?---The withdrawal of authority to deduct pro formas, yes.
PN4395
Yes. Now - - -?---Exhibits C12 and C13.
PN4396
You said they were given to the management team on 22 March; do you see that?---Yes, my recollection is that I gave it to them that day.
PN4397
Well, in your transcript that you have attached of what occurred on 8 May in SR4 at paragraph 63 you said - - -?---Sorry, hang on, hang on for a moment.
PN4398
Paragraph 63?---Yes.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4399
The withdrawal of authorities you referred to, you handed them up. You said on that page:
PN4400
I had conveyed verbally to the management at that time that the said employees were withdrawing their authority.
PN4401
You at no time told the Commission that you had handed up those authorities on 22 March; rather, you said it was done verbally?---No, because my evidence here is that my recollection is that I handed it up. I didn't say it at the time because I couldn't recall who I - whether I gave them to Mr Olsen or Mr Tiplady or somebody else there - - -
PN4402
But the company's advocate - - -?--- - - - and I still can't. I honestly can't recall who I gave them to there, but I know I had them with it, and it is probably in the flurry of activity that occurred within that meeting that I may well have passed them and forgotten who I passed them to.
PN4403
Well, you see, the company's advocate on that day at paragraph 105 told the company that that was the first day - told the Commission that was the first day the company had seen those authorisations requesting the company to cease deduction?---Well, she would, wouldn't she?
PN4404
Well, you never took issue with that?---Well, because I - because, look, I couldn't recall the person that I actually gave them to. Now, I had them with me on the 22nd and I didn't have it when I left the premises, so I can only guess that I have actually given them to someone halfway through the barrage of abuse that I had to cop from Mr Mastrandonakis.
PN4405
You don't remember giving them to anyone, do you?---That is what I just said actually, isn't it?
**** STEVEN PAUL ROACH XXN MR PARRY
PN4406
Thank you?---But I say that I took them into the meeting and they weren't in my folder when I came out, so it is a fair bet that I actually left them with someone, isn't it? In any event, I had other ones done on 5 April and they were very clearly given over to management that day, very clearly.
PN4407
You also said about the rostered day off issue that it is only when you took it to the Commission that they agreed to rectify the situation?---That is right.
PN4408
Well, in your own submissions at the start of that proceeding at paragraph 27 you said:
PN4409
I have been informed -
PN4410
this is after referring to the RDO and the shift loading matter, the second point out of three -
PN4411
I have been informed by the company that the company have since corrected that practice as at 14 April. However - - -
PN4412
?---Just hang on for a tick. I just want to read the run-in to that if that is all right.
PN4413
Yes, that is all right. Okay. Yes, I think one of them - it might have been Mr Tiplady or it might have been Ms Russell, one of them must have said that, you know, "Oh, we fixed that on 14 April", but I don't believe that.
PN4414
I see. Now, let's turn to the new enterprise agreement, that was voted on in June. You were off site at that stage, but you were still giving instructions to Mr Panagiotopoulos?---I was in Sydney, Mr Parry, the day Mr Panagiotopoulos phoned me.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4415
You advice to - - -?---He asked me what to do. I must admit I didn't know, but my advice to him was not to walk out of the meeting. My advice to him was to call for a secret ballot. Because, see, what had happened, that first one, they actually would have had the numbers to roll that first agreement had they stayed in the room. They walked out on the first meeting on 20 March, the fitters and the production workers, and left Mr Mastrandonakis with about 11 people, I think, 10 or 11 people, and that is his so-called valid majority.
PN4416
Well, you have heard Mr Panagiotopoulos give evidence?---Yes.
PN4417
He has given evidence about what your instructions to him were and the purpose of them, haven't you?---Yes, I have, and in my opinion he made a couple of errors, but I don't blame Mr Panagiotopoulos for that because Mr Panagiotopoulos informed me afterwards that he was confused with his cross-examination.
PN4418
I see. Let's just assume that Mr Panagiotopoulos was telling the truth - - -?---Look, I believe he was - I believe he thought he was.
PN4419
- - - that you actually had given him advice directed at making sure the enterprise agreement didn't get up, that was consistent with the advice you gave to him, wasn't it?---No, it wasn't, because - - -
PN4420
You didn't want the EBA to get up?--- - - - because by hiving off the maintenance workers - what had happened, by hiving off that there were a couple of people - I was informed there were a couple of people in the yard who wouldn't join a union come hell or high water before all this matter occurred, and then all of a sudden - because, well, to be honest, your Honour, they were regarded as company sucks, and all of a sudden they had a burning desire to join the AWU, which they did. When you worked your numbers by hiving off your maintenance, the numbers in the affirmative of the EBA were shored up to one more than the numbers for the negative. And when Mr Panagiotopoulos spoke to me about it when I was in Sydney, I thought, well,
**** STEVEN PAUL ROACH XXN MR PARRY
that is - I think I might have even said - I might have said don't walk out the room actually. But I remember saying, well, look, you know, there is other people on day shift you know don't really want the agreement, see if you can get a secret ballot. And they tried that faintly, but it didn't matter, you know, the company just bulldozed it through.
PN4421
All right. It came before the Commission for certification; the CFMEU instructed counsel?---Yes, that is right, yes, yes, cost us a fortune, yes.
PN4422
And his instructions were to oppose certification, weren't they?---Yes.
PN4423
And initially he opposed it on the grounds of duress and coercion?---That is right.
PN4424
You were in the Commission throughout those proceedings, weren't you?---That is right, yes.
PN4425
You were going to give evidence, but did not?---That is right.
PN4426
And indeed, counsel after a couple of days of evidence withdrew any suggestion of duress and coercion in the making of that agreement, didn't he?---That is right. Do you want to know why?
PN4427
No?---The reason why - - -
PN4428
No, I don't?---The reason why we withdrew that, your Honour, was because whilst we still hold the conviction that that is what occurred, the vote being what it was, the Commission would have just said, well, even if it was proven that the vote wouldn't have altered, because the only people we would have been able to get to give evidence would have been within the people who voted in the negative, and they were outvoted by one vote. So it was fruitless to pursue it, but in my own mind I am confident that our accusation was very accurate, that there had been coercion, there had been intimidation. And the company really went all-out on this, they were not going to cop, you know, being told that this agreement wasn't going to be endorsed.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4429
You did continue, didn't you, with the counsel instructed by the CFMEU running technical arguments against the certification?---Yes. Yes.
PN4430
So presumably, you had instructed counsel to do everything possible to make sure the agreement wasn't certified?---No, counsel advised me that that would be the best option to oppose the agreement. I believe that we were right to oppose it. I believed it then and I still do now. I am disappointed that the Commission member didn't give weight - appropriate weight to certain argument; that, of course, is a matter for them, but I don't believe that there was any semblance of genuineness in the way that agreement was negotiated or voted upon or certified.
PN4431
You discount the possibility that the day shift employees, being members of the AWU, exercised their own free choice in that, don't you?---Well, I don't believe they did exercise their own free choice, Mr Parry.
PN4432
Now, what was your ultimate purpose to be achieved if the EBA was set aside? In that circumstance, the old EBA would have continued on, there wouldn't have been a wage increase for employees, other conditions wouldn't change. I just fail to see how it would benefit the employees at all?---Yes, but in the car park meetings that we had that your clients continued to spy on, the members had made it very clear that they wanted us to oppose it and so had the fitters, including those who were not members of the CFMEU who attended the meetings.
PN4433
Right. But what was to be achieved if it wasn't certified?---Well, I suppose they would retain their pre-existing conditions and I suppose they would then call upon us to seek to make an agreement. I - but again, that is speculation because we didn't get that far.
PN4434
Well, that was the purpose of it, wasn't it, that you saw this as being a device whereby the employees would call upon you to make an agreement? It is what you just said?---Yes, but - - -
**** STEVEN PAUL ROACH XXN MR PARRY
PN4435
That is the truth, isn't it?---Look, from what you are saying, you would think I had nothing better to do than hang around Boral Roofing all the time. You know, let's get serious about it. We had a commitment, these people had joined up, they had paid money, they were entitled to, you know, expect from their union representatives what anybody else ought be entitled to expect. If they said that they were opposed to an agreement, it wouldn't matter if I thought it was a good agreement or a bad agreement, if they said they are opposed to it, I am obliged to oppose it.
PN4436
You had made fairly clear, as far as you were concerned, it was a bad agreement, hadn't you?---Well, geez, in my mind it was, but - - -
PN4437
And you were setting up a circumstance whereby if the certified agreement was rejected, you, the CFMEU, would come in and negotiate a new, more acceptable agreement; that was the position, wasn't it?---But I don't think we made any secret of the fact that we thought that the company, you know, could do better, but as - to what extent they could do better I don't know because we hadn't had any negotiations. We hadn't even put a claim on.
PN4438
Have you ever withdrawn that bargaining notice?---No. What, do they want us to?
PN4439
I am sorry?---Do they want us to?
PN4440
Matter for the CFMEU, Mr Roach. Now, you have members on site at present - - -?---Yes.
PN4441
- - - in production; what, seven, eight?---No. As far as I am aware, we have still got what we had at the start that is in the attachment SR - I think it is SR1, isn't it, the attachment to my witness statement, except for - well, Ricky is dead.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4442
Mr Anderson has left?---Yes, one of the Mr Andersons, yes, he has left.
PN4443
Right. There is a number of fitters?---There is a number of fitters.
PN4444
You don't - - -?---Hang on, hang on for a tick, I will tell you. Anderson has left. Ken has left, I think, hasn't he, Ken Faumui. And that is about it. Now, some of the fitters I know have - if they weren't in the AMWU before, I think they are now.
PN4445
Right?---But I still get some fitters who ring me up from time to time trying to encourage me to look after - to keep going, to look after their mates.
PN4446
Your position now is that, as far as you are concerned, the AMWU are representing industrially the fitters, aren't they?---Yes, well, better than we can; we can't get into the place.
PN4447
Right. The only group that you purport - or would want to industrially represent are the production workers, aren't they?---Depends. I have got some fitters, you know, at Traralgon, at the Boral plant there now, we used to have the sole fitter there because it was, you know, it was silly to expect the AMWU to hit that site for one member.
[3.15pm]
PN4448
Yes, but - - -?---But, by the same token, out at Monier Wunderlich, there is about five people, production workers, who are actually in the AMWU. We service them, but they, you know, that is their member. It is no big deal
PN4449
Yes. But if Boral Roofing - what I am suggesting to you, the position is that the fitters are industrially represented by the AMWU, aren't they?---I would say now they are. I mean, I can't see that under the circumstances now that we could do any better than them.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4450
Right?---Certainly.
PN4451
So the group that you want to industrially represent, the production employees who are your members, and they are virtually all on afternoon shift. Correct?---Yes, all bar Tapio. Yes.
PN4452
Now we have - - -?---They are all on afternoon shift. Yes.
PN4453
If you didn't have the right, if it was discovered that you did have constitutional coverage to be on site?---Mm.
PN4454
And you were able to exercise your rights under 285B of the Act - - -?---Well, we are - - -
PN4455
- - - how would you industrially - - -?---I believe we are, but - - -
PN4456
- - - the members?---Well, the EBA runs out at the end of next year, then obviously we would say - I would tap Sammy on the shoulder and say, "We had better have a chin-wag about what we are going to do for these blokes out at Boral." We form a single bargaining unit with the AWU and the AMWU, draw up a claim, and achieve what we can without wrecking the joint.
PN4457
Wrecking the joint is a possibly, I take it?---Well, not if the - not if the company are fair dinkum and honest about - I - about their standing. And I think I raised in evidence before the thing about Johnson tiles. I mean, you have got - they were in a very precarious position last year, and we negotiated a pretty good agreement, under the circumstances, without losing a beat.
PN4458
You would be bound in your negotiating approach by what the members on afternoon shift sought, wouldn't you?---Yes.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4459
Do you accept that the AWU might be bound by different things on day shift?---Look, I think if we were working together, I reckon those workers would be a damn sight happier.
PN4460
Where else do you work together with the AWU, Mr Roach?---With - while I am in the CFMEU?
PN4461
Yes?---Well, nowhere - - -
PN4462
Nowhere?--- - - - that I can think of.
PN4463
No, no?---No.
PN4464
In fact - - -?---But when I was at the SRWU, subject to who the organiser was, there are a couple who shall remain nameless who used to work with us.
PN4465
Mr Roach, you really don't like the AWU, do you?---I don't like a number of people at the AWU. I think they are duplicitous, I think they are liars, I think they are cheats, I think they would say anything they could to achieve their purpose, which is generally self-satisfaction and in particular, parliamentary.
PN4466
This is a union that you continue to describe as a stooge for management?---Well, when they stop behaving like that, no doubt I will stop talking about them like that.
PN4467
So if they continue to behave as they are at the moment you will still continue to treat them as a stooge for management, won't you?---If they - and it wouldn't matter what workplace it was. If an AWU official conducted themself in the manner I have seen the AWU officials conduct themself at Boral Roofing, then I would come to the obvious conclusion that they were a stooge of management, and I have no problem about being honest about what I think of them.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4468
And unless they change their position at Boral Management you will continue to see them as a stooge for management, won't you?---Well, if that is how they are behaving now, and if they continue to behave that way, then what changes?
PN4469
Yes. And you are not going to co-operate with a union that sees itself as a stooge for management, are you?---Yes, but if - if the AWU - - -
PN4470
Well, are you?--- - - - felt - hang on. Are you going to let me answer it? If the AWU felt that they weren't - that they weren't going to get their order here, then I think that they would be - that they would be wanting to do talkies with us, and you know, like I said. You get over things. I am not going to go into things that subject - are the subject of, you know, private discussions. But I think I have, in the past, conveyed that no matter how personally bitter I might feel towards some people, you do have to work with them from time to time. And if that means that the job is a bit harder, it means the job is a bit harder. But I have been doing this for nearly 20 years, so it is not as if I am a stranger to it.
PN4471
You are not going to work with a union that is a stooge for management, are you?---I don't like it, but I have to sometimes. Yes. I have to sometimes.
PN4472
And do you see that you will work - I am sorry. You have to sometimes work with a union that is a stooge for management?---Yes. I have had to do that.
PN4473
Whilst with the CFMEU?---Well, look, I think leadership of the Transport Workers' Union aren't real flash in Victoria too, Mr Parry. But I have worked with them on a dispute at Selkirk Brick last year very well.
PN4474
Were they stooges for management, too?---I think - I think some of them are, yes. I think they are on a par, actually, as far as that goes. It doesn't mean that all their organisers are bad. It just means that the direction, industrially and politically that the organisation takes is one that, in my honest opinion, is not conducive to the best interests of the members, but more conducive with the best interests of the company.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4475
The position is that unless the AWU in its performance at Boral Bricks changes to your satisfaction, you are not going to work with them, are you?---No. That is not true.
PN4476
Right. So if they remain as you describe them today as a stooge for management, you will work with them?---As unpalatable as it may be, yes, I would.
PN4477
Right?---If it was in the interests of the men, you know, the members, then I would. I have said before that I had to go out there Wednesday last week and have discussions with my members. And that was very unpalatable. But I did it, because I thought it was in their best interests.
PN4478
But you are not going to make any secret in the future, if you are involved in enterprise bargaining at Boral, of your view that the AWU are stooges, are you?---I - I don't think I would be - I don't think I would be as vocal as I am in this notice, because obviously I get to put my argument as the arguments occur. Not hear back a couple of days later what management and AWU people are running around saying about us that is grossly untrue.
PN4479
Now, let us assume that the AWU and yourself and the CFMEU can't agree to form a join position to put to Boral. That is not - that is a possibility, isn't it?---I think it is highly unlikely. I don't think the members will allow that to occur. I think Mr Woods - or sorry, the AWUs members would rightly pull their - pull their official up if they weren't working with us. And I think that my members would rightly pull me up for not working with them.
PN4480
Right. Let us assume that it happens. Then you will have two different shifts adopting different industrial conditions, won't you?---That is - that, in my opinion, is entirely unrealistic.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4481
It is totally unworkable, isn't it?---If that were the circumstances, if I was that infantile that I ignored the best interests of my members and refused to work with an AWU official and vice versa, then I think that that would be destructive. And that is why I say that it is highly unrealistic to expect that that would be the outcome.
PN4482
And indeed, if that were the outcome there might be different industrial tactics adopted on the two different shifts, mightn't there?---The - every collective union committee that I have been involved in, Mr Parry, come to a decision as to what tactics are applied. Now, from time to time, some officials have run off, run away behind the back of the rest of the committee and done their own thing. We accept that, and we deal with that. But that doesn't mean that we fragment as a unit. The AWU I am sure would agree were they in the box, or any of them were in the box, that from time to time there are officials who do not get on. But through industrial campaigns for the betterment of the members they put their differences aside and get on with the job. And that is what they are paid to do.
PN4483
Employees - Mr Steinke has given evidence that employees at Boral, on he factory floor, are talking about getting brick conditions. You heard him give evidence about that?---Yes. I heard him give evidence about that, yes.
PN4484
Now, let us assume that that is the truth. That employees out there are talking about getting brick conditions?---Mm.
PN4485
Presumably, if the employees on afternoon shift are asked to vote to that effect you would pursue that, wouldn't you?---Yes. Let me put it - let me supplement that. Yes. While the - while some brick conditions are better, some are in fact worse. And, let me also add that, you know, if I was looking to do justice to workers in this industry, we would be aiming for significantly better conditions than exist in the brick industry. But that, of course, is all subject to what is possible.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4486
To do justice you would be seeking significantly better - - -?---Yes.
PN4487
- - - than the brick industry?---Yes.
PN4488
What sort of justice are you talking about there?---I am talking about people being paid an appropriate amount and receiving appropriate conditions to what they do. I have a big problem with this country of ours, Mr Parry. The harder you work in Australia the less you get paid. The least you do, then the more you get. And it is only a general rule of thumb that I guarantee that everybody sitting in this room right now will have a better hourly rate and better conditions of employee than people who work in a brick yard. And yet, it is not exactly - I don't know anybody who has gone out to a high school and said, "Hands up those who want a career in a brick yard," and seen one hand go up. The reality is, they are hard, hot, manual work. I have got people bending over, who stack bricks all day, in a brick - one of those carousels. And they are just constantly moving, expending as much energy as a shearer, for 10 hours a day, for the princely sum of $12 an hour. And if you - if anybody thinks that that is reasonable then they are - I have got to question their judgment. So what I mean by that statement is that I think if we remunerated people for the effort they put in and the work they do and the discomfort they are suffering in doing it, you know, brick workers, tile makers in Australia, should be on 60 to $80 an hour. But the reality is I also recognise that in my lifetime I will probably never see that. And, you know, it is pie in the sky stuff, but I just don't think it is going to happen.
PN4489
All right. So you would presumably in enterprise bargaining at Boral next year want to have some input to the claim that is made by employees?---Well, from what I have seen, I think - I think they would be better off if I did, yes.
PN4490
They would be better of if you did, because as in the little speech you have given to the Commission, you think that they are worth a fair bit more money?---Yes.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4491
And you think that that sort of claim should be pursued for them, don't you?---Come on. I don't - yes. I don't hide that fact that I feel that way, Mr Parry, but I did qualify that by saying that I don't think it is going to happen in my lifetime and I think it is pie in the sky. But I think if the industry could afford to pay it, then they should pay it. I just don't, you know, I mean, it is a long way from, you know, between 12 and $15 an hour and 60 to $80 an hour, isn't it? And I am talking about the way I evaluate the worth of the work.
PN4492
If the members wanted you to pursue that, you would pursue it, wouldn't you?---If the members wanted me to pursue that, my advice would be to go home and have a good rest and come back and advise me again tomorrow.
PN4493
You wouldn't pursue it?---Look, no-one has put that to me. If anybody put that to me, my advice would be that they are - they are not being realistic under the current circumstances. It would be a nice achievement, but I just don't think it is practical. And I don't know anybody in this industry, and as, you know, as uneducated as many of them may be, it doesn't mean they are stupid. And I don't believe any of them would say, "Yes, that is obtainable. Let's go for it." I just don't see it.
PN4494
What I suggest to you is that your position in all likelihood will be that you would want to see significant improvements in their conditions at Boral Roofing?---Too right. Have a look at your own exhibit, Mr Parry. The one you have tendered of the photographs. And this is after all the AWUs extensive efforts on occupational health and safety. Have a look at the dust in the photographs.
PN4495
Do you accept any - - -?---Have a look at the dark nature of their working environment. Have a look at the amenities that are provided in the photos that we submitted. Have a look at the poor sewerage. You know, you raise these points with me as if it is an astonishing and remarkable fact that somebody thinks that they ought be paid better than what they are, or receive better conditions. I don't see anybody coming into this Commission advocating on behalf of anybody else who would like to work in a workplace where you have got Bondi cigars floating past the lunchroom door. I am sorry. That is probably a bit of an exaggeration, but - - -
**** STEVEN PAUL ROACH XXN MR PARRY
PN4496
A bit?--- - - - where you have got - - -
PN4497
Not - not a - - -?---Well, you have still got sewerage and - - -
PN4498
Not the first one, but a bit?--- - - - grey water floating past. You have still got sewerage and grey water floating - floating down the footpath, past the lunch room. I mean, that is just disgraceful. And that is - I got quite upset when I left yesterday, because what the man in the witness box just before me said yesterday, just before we knocked off, some of those things I didn't even know. And I just thought to myself, "What sort of people are they?" You know, these Boral people, every time I have come to an industrial hearing there is a little army of them. A little army of managers, and then the lawyers, and the barrister. And they can't afford to pay their people properly; they can't afford to provide basic amenities that are clean and free and hygienic - dirt-free and hygienic. They can't afford to attend to some of the most basic fundamental rights that a worker should have in this country. And yet they come in here and spend $100,000 or more on this case. So you question it, but I don't see anything wrong with requiring an employer to provide humane minimum standards to a point that they can afford to reasonably.
PN4499
These are the sort of issues you would be raising with the employees if you got back on site, wouldn't you?---Health and safety issues. Too right, yes.
PN4500
And their conditions? Correct?---Their conditions, and what is affordable ought be afforded.
PN4501
What can be gained should be gained?---If it can be afforded it ought be afforded. Their work - they work pretty hard out there, Mr Parry.
PN4502
Did you hear Mr Eather give evidence about threats to the viability of Boral Roofing?---I heard - I have hear a number of management team members talk about the threats to the viability of Boral Roofing.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4503
Did you give any weight to Mr Eather's evidence at all?---What is that?
PN4504
Did you give any weight to his evidence at all?---Yes.
PN4505
All right?---Well, they are not making their tiles as cheap in Victoria as they make them in New South Wales. But I don't - I mean, then again, let's have a look. I mean, and there is a few comparables we have got to look at. What has the cost of tiles been? Is the market squeezing the price too much? I don't know. But what I do know is that even if the market gets a bit tough, there is no reason that any company should take the easy option and kick the people on the lower rung of the ladder, because it is easy to do. They ought - you know, get out in their market, promote their product better, or look at some other mechanism. But many of them, generally because they themselves are lazy and incompetent, many of them choose to take the easy option. Kick the worker. Squeeze them on their wages and conditions.
PN4506
So Boral are a company that are kicking the employees on the lowest rung?---Well, I perceive that is what this application is all about. Yes.
PN4507
I see?---So they can get a - they can get a cheaper deal with the AWU because they won't give them any trouble, they won't articulate the views and concerns of the workers that are affected.
PN4508
So the EBA that has recently been done you describe as a cheaper deal between the company and the AWU?---I believe that the company thinks that if they had to deal with us, if they had a choice between the AWU and us, the AWU are going to be the cheaper option.
PN4509
You will be much more - - -?---Excuse me. Can I have some more water?
PN4510
You will be a much more expensive option, as you see it?---I suspect that that is what they think.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4511
What do you think?---I said that that is - I suspect that that is what they think. I think that - - -
PN4512
What do you think? Is that right or wrong?---If I had been negotiating the agreement I wouldn't have been - I wouldn't have been satisfied - well, I wouldn't have been satisfied if the interests of the members hadn't been properly pursued. And if their concerns about what the company was seeking had not, you know, had not been taken into account and a position put, as such.
PN4513
The Concrete Award. Your union is not a respondent to that?---No. It is the Cement and Concrete Products Award.
PN4514
The Cement and Concrete Products Award. Yes?---No, no.
PN4515
Ever sought to become a respondent to that?---No, I - in the short, relatively short time I have been at the CFMEU I haven't really looked into it.
PN4516
Now apart from the bargaining notice that you served, has there ever been a log served on Boral, to your knowledge? Boral Roofing?---To my knowledge, well, I don't know. To my knowledge, no. But I don't know. As I said, or I can't remember if I said it here or - my predecessor, Ken Bryant, tells me that he had members out at Alice Roof Tiles. He told me that it was union-free prior to that. That the AWU in fact didn't have any members there. And he was talking, I believe that he was talking around the vicinity of about 1998/99, which is contrary to the evidence that Mr Winter gave. But the reason I raise that is that they may have - he might have said something. They were going to look at it then or something. I don't know.
PN4517
That was before you were with the CFMEU, wasn't it?---Yes. Yes.
PN4518
Yes. I have nothing further, if your Honour pleases.
**** STEVEN PAUL ROACH XXN MR PARRY
PN4519
PN4520
MR WOOD: Mr Roach, within the CFMEU, when an EBA goes to get voted on, do you use a secret ballot, generally?---If it is requested. I have - we have got a - - -
PN4521
No, generally? What generally happens?---No, I mean, no, I mean, you have a vote, you have a show of hands. I generally ask them to hold their hands while we conduct a vote, and either myself and the steward will go, you know, count them one by one. If there is different shifts you will tell each shift that you are going to marry the - marry the vote. And publicise it after the final shift vote. I can't recall - I did a ballot for one plant - - -
PN4522
No, well I am talking about generally?---No. Not - if there was a request for it, I would do it. Because I have got no problem, in fact, I have found - funny, if there is ever a contentious thing, like a vote on industrial action, contrary to what the Liberal Party of Australia and their backers in the employers' ranks think, I have often found that the vote actually increases for - in favour of industrial action on a secret ballot, as opposed to an open vote. And I tend to think - when I - I started work in a factory when I was 16 and we had a vote to go out then. And I remember thinking, on the very first time I voted on industrial action, people were scared of a couple of people who always report back to the boss, who voted what. So, I have always found that it - I have got nothing to fear from a secret ballot, and I always think it is - I have got no problem with it.
PN4523
I am just happy with you to - sticking to the questions?---I wanted to - - -
PN4524
Yes, I am sure you did, mate?--- - - - give a full answer.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4525
I am sure you did. Does the CFMEU operate on the basis of the majority rules?---Yes, generally. Yes.
PN4526
Generally? Or all the time?---Well, subject to - I am not as conversant with the rules as many of the other people here I am afraid. But, yes. It is the basic principle.
PN4527
Would it be good - would it be good union principles in general to operate on the basis that the majority rules?---Yes. Yes. In fact it is the only way you can.
PN4528
Yes?---Yes.
PN4529
And secret ballots. That is currently one of the issues before the parliament at the moment, isn't it?---Yes. I think the Minister for Employers is going to bless us with another one of his beauties. I don't know what he - what the exact ins and outs are.
PN4530
And, but it would be fair to say that the ACTU and the trade union movement are opposed to secret ballots?---I think from the way they want to do it, Sam, I am not sure what the exact proposition is, but I think they have got some convoluted way in which it would just be impractical to conduct it. When we have a secret ballot, I am talking about - I mean, you can conduct them in a lunch room. You do the vote. You just - you can elect from amongst their ranks somebody to collect them, and they fold up the paper and put in the shoebox and count them out. It is no big deal. You ascertain what the view of the workers is. But what they are proposing is a bureaucratic nightmare. And they are doing it deliberately, obviously, because, you know, they don't want a bona fide secret ballot. They want to stifle the ability of workers to express their views industrially.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4531
Would it be fair to say that the trade union movement in general opposes the secret ballots, any secret ballots, because they want to encourage people to speak their mind?---That is a - that is the principle. I don't know if that is a formal position, Sam. But it is a principle. Paradoxically, I actually support that principle, too. Because I think if you hold an opinion you ought be prepared to speak up and express it, and I don't think I have ever suffered by not doing that. But the reality is, of course, a secret ballot allows people to vote differently to what they say or whatever. Secret ballots don't bother me, but I support, in principle, the notion that people should speak as they - or vote as they speak and believe.
PN4532
All right. In relation to - you gave some evidence about demarcations, and you made the statement that you didn't want this to blow up into a big demarc dispute. But isn't it the case that between the CFMEU and the AWU, this is a manifestation of a broader dispute?---This one?
PN4533
Didn't you- - -?---While we are before the Commission on this thing?
PN4534
The - the argument about service industries to the contracting industry. And this is a service industry to the contracting. Is it a manifestation of a much broader dispute? Even though it is out there, and you can isolate it, isn't it true to say that this is only one of many, many disputes that happen, about this very issue?---Because you have got overlaps in areas of operation that from time to time lead to a conflict. But, you know, when you look at the amount of overlap between the CFMEU industries and the AWU, because it is really the intergalactic union of workers, isn't it, the AWU. The - - -
PN4535
And the Australian union. That is right. Yes?---Yes. When you look at the amount of overlap between all the divisions of the CFMEU and the AWU, you know, quite frankly, you know, you would be surprised that there is not more. But there isn't. Because the reality is that workers get on with their job, get on with their lives, and they really don't like demarcs. It doesn't look good. And the only time that I have found, you know, and this is probably why they get so intense, is because when people have had a gutsfull of one organisation and
**** STEVEN PAUL ROACH XXN MR WOOD
really want to get over to another one. And it, sort of, the pressure builds up to that point. But, I mean, I am surprised there is not more given, you know, if, you know, people are saying that it is because, you know, there is this conflict on constitutional coverage. You know, I just think that is rubbish, otherwise you would see a damn sight more.
PN4536
But isn't it true that the CFMEU want to get into the manufacturing industry, and they have even put out pamphlets about that?---We are in the manufacturing industry.
PN4537
Yes. And - - -?---We do shopfitters, we do brick, tile and pottery, we do have a furnishing trades division. We are very much - - -
PN4538
And they want to go further?---Well, we have got enough to cover in our own areas.
PN4539
You have got enough?---In our areas, yes.
PN4540
All right. Well why then would you seek to alter your rules to cover identically what the AWU covers in the off-site construction industry, if you - - -?---Well, I couldn't comment about that, Mr Wood. I know nothing about that.
PN4541
Okay then?---But suffice to say it, that there isn't some organised - well, this - this current matter before the Commission is not the culmination of any campaign by myself or the CFMEU. I am aware that there is contests for members within certain construction or whatever. But I am not a construction organiser, so I really don't know much about them. But I am telling you, this was legitimate. It is, as I have said it is, people sought us out for membership, and we responded the way we did.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4542
All right. In relation to some evidence that was given about seeking membership by using football or whatever, does the CFMEU support that unions need to present themselves different to people and they will try to invent these types of things, whether it be football and being sociable and asking people to go for a drink or whatever. Or don't they support it?---Look, I have got no problem with the AWU taking blokes to the footy, right. I have got no problem with them buying a beer. You could buy them fair floss and take them to the show for all I care. I don't think it does any harm, to tell you the truth. As long as the primary responsibility of the union is being undertaken. And, unfortunately, in this instance it hasn't been. These people have asked for help on several occasions. They have got nothing for it. And I don't - - -
[3.45pm]
PN4543
No, my question was about football, it wasn't about the other thing?---No, I know. But I don't mind the AWU taking blokes to the footy. But it just seems strange to me that the moment we come on the scene to do the basic stuff that a union should be doing, the AWUs response was to run out with footy tickets and you know - - -
PN4544
Well you weren't aware?--- - - - she was all footballs, meat pies, kangaroos and Holden cars, you know.
PN4545
You weren't aware then that this has happened on three previous years as well?---Well, I don't know. All I know is a bloke has told me that since we were there they have resorted to taking blokes to the footy and buying them beer and you know. And like I said, best of British to them. I have got no problem with that. Hope they enjoyed the game. I didn't, this year, my team got done too many times.
PN4546
Okay. In relation to other industries. Do you accept that there are different wages and conditions as they relate to different industries?---Yes. And the cement and concrete products industry has been abysmally low - - -
**** STEVEN PAUL ROACH XXN MR WOOD
PN4547
I didn't ask you about cement and concrete pipes industry, I just said generally?--- - - - But I have noticed in the last 12 months, all the EBAs for Besser and Boral Blocks have had dramatic improvements to the tune of 2 to 3 dollars an hour over a 12 month period. And I just, you know, I just wonder why they languished on 10 to 11 dollars an hour for so long and now they are 15 within 12 months but coincidences do happen.
PN4548
No doubt it is because of your good work, mate. No doubt it is because of your good work?---Well I think the customary threat has been used and you have done it effectively and good luck to you. You know, if the workers are getting the benefit out of me being a bogey man well, you know, so be it.
PN4549
All right. Now, in relation to other industries, in general. It is not unusual, is it, to have maintenance people having a different agreement from production people, is it? That is not unusual?---Yes, in this industry it is, yes.
PN4550
In this industry?---Yes.
PN4551
So we want a - do we want to get everyone - are we going to pick your industries or are we going pick principles?---No, no, no. What I am saying your question was, it is not unusual. I am saying - - -
PN4552
It is not unusual?---I am saying it is. Because if - all the sectors that I have got and they have nearly all got fitters - - -
PN4553
No, just can you just wait a minute. I didn't ask you about that industry. I said to you and my question is, and I have written it down. It is not unusual is it, generally, that you wouldn't have production on with maintenance people. It is not unusual?---No, Sam. It is subject to the industry, I mean - - -
**** STEVEN PAUL ROACH XXN MR WOOD
PN4554
So we have got to go to the industry in some cases, in other cases we don't'?---Well, yes, I mean, look they are all different. Some industries the maintenance come in under the one agreement or they are an appendage - they are like - their unique characteristics are contained in an appendage to the agreement. Other industries they do have their own agreement. But the reason that we pursued the line of why they were seeking to hive the maintenance off on the current Boral agreement was why now. You know, you have done two or three agreements in the past. They have had the maintenance workers in there. All of a sudden - and the disagreement would have had the maintenance people in here, in it too, but for the fact that you realised that you couldn't get it certified because you hadn't followed the processes set out in the Act. The company being in the same boat. So they go back to the drawing board, work out how they are going to get the numbers. The only way they can do it is to hive off the maintenance. And they will have a very narrow window of opportunity to get it endorsed. And that is what occurred.
PN4555
All right. Well that is what you say that occurred. You, having worked for the AWU in the past?---Mm.
PN4556
Isn't it common that there are - well, aren't there occasions when the AWU will want to reach an agreement but maybe other unions don't want to breach that agreement, so we will go off and do our thing and we will let them go off and do their thing. We don't drag them into it and we don't say well metal workers you have to come along with us. Isn't that the case?---Look, I know that - - -
PN4557
Isn't that the case?---I know that on occasion that happens but generally, generally, when you start in a collective, as the one bargaining unit, generally you stay together. But I do know that you have gone off, yourself, and you have been the actual negotiator. You have gone off and done your own thing. I can't think of the specifics. It might be the - it might have been Shell.
PN4558
The oil industry, that is right?---Shell - yes. That has happened. But I mean, like, when we had that dispute in 1990 out at - the Esso blue, we had nine union there and I am not going to name names but the NUW would come to the meetings and somebody from there would run out and do different things. It didn't really cripple us. I mean, we all knew it was going on and, you know, we didn't like it but, you know, it does happen from time to time.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4559
And I would say that it happens more than time to time. In this recent Campaign 2003, there is a different position that the NUW is putting to the rest of the MTFU?---But by the same token, if you look at your last agreement, it doesn't exactly sit in with Campaign 2000 either. I don't know what commitments the AMWU and the AWU have given each other but - - -
PN4560
Well it is not in the metal industry, for a start?---The AMWU - well the AMWU have told me, on the agreements that you two are supposed to work together on, that they are not happy that you blokes have welshed on the deal but that doesn't matter anyway.
PN4561
The AMWU have never appeared in these proceedings or proceedings on the certification of the agreement, have they? In opposition?---No. They sought to intervene and were knocked off. They sought, earlier in the piece, the ETU - - -
PN4562
In these proceedings?---Yes, but they were going to with the EBA too but they thought it was a futile waste of time.
PN4563
No, no?---Because you were running with Boral and you were determined to keep them out.
PN4564
No?---If you look at the first proceedings that we had in this Commission on this matter, Mr Parry appeared for the company, I think you appeared for the AWU - - -
PN4565
No, I didn't?---Didn't you?
PN4566
No?---Well somebody did. Obviously me for the CFMEU and there were two blokes, one from the AMWU and one from the ETU showed up, sought leave to intervene. And we supported that because we felt they had a relevant interest. You and Boral opposed it. We opposed - I will tell you who - it might have been Louise Russell.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4567
No, it was Mrs Bornstein, but go on?---No, she was representing you.
PN4568
Yes?---Anyway we opposed the legal representatives but got knocked off on that. But that is what happened. They originally tried to get in.
PN4569
But the metal workers intervened in that matter, the 118A matter, because they felt that the rule that was being sought by the AWU went beyond just production workers. And that was fixed up at that meeting and the AWU then re-lodged a new application. Isn't that right? And they withdrew on that basis?---No, no. I will tell you why. They sought to intervene, they sought to intervene because they had a valid interest in the matter. The Commission - - -
PN4570
Because, initially?--- - - - didn't see it that way, so they got knocked off. But, I might add, they were pretty cranky with the AWU because they felt that you were being hypocrites and you were being sleazy because you never told them that you were running around signing up fitters out there. They didn't even know they were being directly employed. And that is why I raised, originally, on our exhibit C12 the fact that Miguel, who is clearly a fitter, had been signed up by the AWU with scant regard to the agreement they had with the AMWU and contrary to their own rules of coverage.
PN4571
You have got an agreement with the AMWU too, haven't you?---I don't know, I haven't.
PN4572
But the CFMEU have. You are representing them?---Well I don't know. But I mean, not our division. I don't know.
PN4573
Not your division. They are separate?---I am unaware of a deal between our division and the AMWU. We have a pretty good working relationship. I don't go chasing their fitters, you know, but there have been, as I said, the occasions where there have been the odd one here and there who want to join us. So they join. I look the other way when they have got a couple of ours, say out at Wunderlich, it is no big deal. It all works all right.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4574
All right. You have alluded to the fact that there is an agreement between the AMWU and the AMWU in Victoria?---Sorry? By the AWU and the - - -
PN4575
AWU and the AMWU in Victoria about coverage?---Well I knew you had a deal when Craig Johnson was State Secretary of the AMWU because - - -
PN4576
Well this is the time we are talking about?---Yes.
PN4577
I know things have changed since then?---Yes, well I don't know if you have still got that deal. I knew you did then but what I am saying is the AMWU told me they were pretty pissed off because you had or your union had gone and signed up people, firstly, contrary to arrangement that they had with you and, secondly, contrary to your own constitutional coverage in that regard.
PN4578
And we haven't got constitutional coverage of fitters, the AWU hasn't?---Well I was led to believe that you didn't. And it would surprise me, quite frankly, if you did.
PN4579
Are you aware of an old organisation called the ASE, the Australasian Society of Engineers?---Yes, that is right, yes.
PN4580
And they amalgamated with the FIA?---Okay. So, well, if that gives you coverage, I don't know.
PN4581
So you didn't know about the coverage- - -?---There might be a moot point in there.
PN4582
Well, except for the fact that there is coverage there. Health and safety. Do you know a Mr Yossie Berger?---I certainly do.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4583
Been, previously, the head of the Occupational Health and Safety Division of the ACTU?---Yes, look, I know he is well qualified. Yes. I worked with him.
PN4584
And you have high regard for him?---I have got a high regard for him. I don't always agree with everything he says. You don't with anyone, do you really?
PN4585
No, no, you probably don't?---Well I am no-one's clone but, yes, go on.
PN4586
He would be considered one of the top health and safety experts in Australia?---Yes.
PN4587
Okay?---Yes, but he does go over the top from time to time.
PN4588
With his health and safety?---No, with his - with some of his proposed remedies. But, look, that is another matter and I don't think it is pertinent to these proceedings.
PN4589
All right. Now, in respect to the tactics by the CFMEU. It is a familiar tactic, isn't it, that the CFMEU will ban an individual company if they don't have CFMEU membership, in the off site?---Couldn't tell you. Couldn't tell you. Don't know.
PN4590
So you wouldn't know that it happens in the window industry?---No. Never organised it.
PN4591
You wouldn't know that it happens in the asphalt industry?---Don't know. Don't know.
PN4592
Now you talked about the freedom of association, that people have a choice to join the union of their choice. Is that right?---Yes.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4593
Is that what you believe in?---Under these circumstances of this case, yes.
PN4594
Under these circumstances. So there might be other circumstances that you don't believe in that freedom of choice?---Yes. Well the point of the ridiculous, Mr Wood. For example, a tile worker joining the Actors Equity and expecting them to represent them industrially in here, is a little bit ridiculous. However, a tile worker joining either the AWU or the CFMEU, in my opinion, would cause no conflict whatsoever. Okay. I can't, I really can't see what the beat up is, apart from the fact that Boral just don't want to have to deal with effective representation of their workers.
PN4595
No. I am dealing with the question about freedom of association?---Yes.
PN4596
You have given me what your opinion is. What is the opinion of the CFMEU on freedom of association? You are the Assistant National Secretary?---Of our division?
PN4597
Yes. The Construction and General Division, that is the division you are in?---Well I don't know. I mean, I don't - our little division - yes okay, of the Construction and General Division, I don't know of any policy.
PN4598
You don't know of a policy. You don't know if the law passed the policy and the CFMEU supported it?---No.
PN4599
And you don't know - - -?---I have been busy working.
PN4600
And you don't know if they sat on the committee to develop the policy?---No, I don't, Mr Wood. I mean I could go back and ask them and they will probably tell me and I will go, gee isn't that good. But, no, I don't know anything about that.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4601
All right. Do you know anything about the Arts Centre, subject before the Royal Commission?---You mean the Gallery, was it?
PN4602
Yes, the art gallery, where Able Demolition - - -?---Yes.
PN4603
- - - held membership of the AWU - - -?---Yes, I sure do.
PN4604
- - - and wanted to stay that way. And the CFMEU didn't like that?---Yes. And I will - - -
PN4605
Do you know anything about that?---And I will tell you how I know about it. When I was the Health and Safety Inspector at WorkCover, one of the construction health and safety inspectors was discussing the matter in my presence and he rolled his eyes and said, we have got a shit fight down at the gallery now. It was fairly obvious that there were demarcation issues. But my recollection is he did convey that there were genuine health and safety issues that the CFMEU had raised that the AWU had done nothing about.
PN4606
No, no. It was - - -?---Well that was my recollection - - -
PN4607
- - - about membership, wasn't it?---It was my recollection and I am trying to think of the inspector's name, I think it was Wenham.
PN4608
Do you recall if there was an argument about membership. That they were members of the AWU and - - -?---Yes, but as I said, I was working at WorkCover at the time - - -
PN4609
I am not interested in the WorkCover thing. I am asking questions - - -?---Well that is all I know.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4610
- - - about their membership with the AWU and them wanting to remain members of the AWU, but the CFMEU wouldn't accept them. That is the question. Do you know anything about that?---I have told you in the previous answer, the full extent of my knowledge of that issue. It happened when I was at WorkCover. It was only a chance that - it was Peter Wenham, I think his name is - that Peter Wenham, who was the Construction Inspector, made those comments in my presence.
PN4611
Apart from the health and safety thing, you don't know anything about it?---No. I mean I wasn't in any position to know anything then anyway. It was only lucky that Peter was in when the issue came up. Excuse me, can I have some more water? I have got some here.
PN4612
The next issue. You gave some evidence about C and M Bricks, I think you referred to them?---C and M Brick, yes.
PN4613
And in their award, it is actually the AWU award?---Yes. The Cement and Concrete Products Award, yes.
PN4614
All right. Now, you were shown some, I think it is AO6. It was a bargaining period initiated by - - -?---Yes, our bargaining period. They didn't put the AWUs one in there.
PN4615
No they put the Brick and Tile one, didn't they?---Yes, yes. They could have put the AWUs one in there and we might have discovered that is where the workers got the knowledge of the long service leave stuff and - - -
PN4616
There was no limitation on you putting that in there, was there?---Well I don't know that it is really important, to tell you the truth but - - -
PN4617
Well it has turned out to be important, hasn't it?---Well, yes. But I mean, Mr Olsen did make reference to it and it is still within the power of Mr Parry to produce the AWUs notice of bargaining period, if they want to explain it. Yes, I have got it.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4618
No, I am just - the question I think you have answered anyway and that is in relation to the - you could have put the AWU award but you have chose to pick that award?---No, no. Well I didn't do this.
PN4619
No. No, but the union did. Whoever types the information, they did it - - -?---It is signed by Mr Sutton but I think Mr Molksham actually might have organised it. It looks very much like a proforma off a computer.
PN4620
That would support the earlier proposition I put to you that this is a manifestation of a much broader dispute?---No. I rang Trevor about it and asked him to send it in after people had joined up at some stage, whether it had been the 18th or 19th I couldn't tell you.
PN4621
Are you aware - no I will withdraw that. You were asked a question about - or under examination it came up about this right of entry?---Yes.
PN4622
You said that your right of entry depended upon membership?---Well, actually anyone's right of entry does - - -
PN4623
Well, yes?--- - - - I think under the Act, now, doesn't it?
PN4624
- - - in terms of the Act. If you have got a member you have got a right of entry, you said that?---Pretty well, yes.
PN4625
Well is it the case that you can have a member without having coverage?---Yes.
PN4626
You can have a member without being coverage?---Yes. You can have a member and be an unregistered organisation, too, yes. The question then becomes how effective you are.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4627
And can you use the Act, indeed?---Well, yes, that is right. And I mean, I think there is a common expectation when people join a union that if there is a grievance or a dispute you come to a body such as this to have it resolved. It is a common expectation. I think people would be alarmed to think that that wasn't, you know, a common right.
PN4628
And you would aware, being in the union movement for as long as you have, that whilst we might not embrace every step of the Commission, the provisions in the Act that we are allowed to exercise, whatever they might be, is all predicated on having membership that are eligible and we have to have coverage for them. If we want to exercise that?---Yes. Actually, it is a moot point, you know. Because, I don't know if it has been tested as far as the standing of a member that didn't come within the constitutional coverage. I mean, we are not basing an argument on this today in these proceedings but it is an interesting point that - well, look, I will put it this way. Prior to us doing that shearer's penalty rates case, you might remember the Webb and Miller applications. There hadn't been an application by an individual bound by an award to vary a pre-existing award before. However, I think it might have been Staples used to ponder the notion that it might be possible. Well we proved that it could be done at the SRWU. Unfortunately the case didn't end in all love and glory for everyone. I feel, however, that under the circumstances, if this order goes up I think they are going to absolutely cripple the ability of those people to have their issues dealt with effectively and fairly and justly.
PN4629
Well you can make those submissions in your final submission. That is not a question I have asked?---Yes, okay, okay. But I am entitled to say it on oath too, Mr Wood.
PN4630
All right. You have been asked some questions about 118As. The CFMEU have run some 118As too, haven't they?---Well I don't know.
PN4631
You don't know. Are you aware of the Carpenter decision by MacBean?---No, I am not. But let me say, I mean - - -
**** STEVEN PAUL ROACH XXN MR WOOD
PN4632
Well that would have been in your time?--- - - - the fact that I am opposed to what is happening here, now, doesn't mean that I am automatically opposed to having an orderly system of industrial relations or unions having general rules of coverage and so on and so forth.
PN4633
And that sometimes might include a 118A?---Yes, that is right. And I mean, you know, I think it would be foolish for any legislature to have the type of Act we have got now, without having the ability to, you know, to stop people from going to the point of the ridiculous. But I don't know that you could in any way compare, you know, issues of dual membership or membership of different organisations at Boral Roofing, to the point of the ridiculous.
PN4634
But there was your members in the construction industry, CFMEU and the AWU eventually was FIME, that was dual coverage and used to be the old Carpenters and Joiners, amalgamated with the FIME - - -?---And the Iron Workers. You remember the lights dispute, down at the MCG.
PN4635
Well, no it was after that and it was in your time with the AWU but before the amalgamation - - -?---Yes.
PN4636
- - - there was a dispute, where there was dual coverage between the CFMEU and the AWU?---Well there has been a few places where there has been dual coverage.
PN4637
And Senior Deputy President MacBean, dealt with the matter?---Yes. Well I don't know the specifics of that, Mr Wood, but I do know that there is - and it is only anecdotal because I have only heard it secondhand but, you know, I have heard of instances before where - - -
PN4638
But you are aware of the Carpenters and Joiners Union, the old Carpenters and Joiners Union?---The "Asca Jascas," yes, the ASC and J.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4639
And they were around in the construction industry for a lot of years. Even in the Gallagher times, weren't they?---Look.
PN4640
Well were they or weren't they?---Look, a very - my best man was bloke called Mick Sage, who was an organiser with the asca jascas. And - - -
PN4641
So they have been around?---They have been around but, I mean, Mick would be the first - - -
PN4642
And they were wiped out?--- - - - to tell you that they had - there was only a - they had legitimate members in some areas and they had other people who were counted as members in others.
PN4643
But they were wiped out by the CFMEU and this Commission, under a 118A, weren't they? And there was dual coverage?---I tell you why they were wiped out, Mr Wood. They were wiped out with the amalgamation with the Iron Workers, weren't they?
PN4644
No they were - - -?---Because the Iron Workers and later the AWU couldn't tolerate some of the improper activities of some of their officials. Isn't that true?
PN4645
You are giving the evidence - - -?---Sorry, I forgot myself. Okay.
PN4646
Okay, look I will leave that - - -?---In my opinion, the ASC and J were destroyed by the Iron Workers Union.
PN4647
I think the Commission is well aware of what happened in that dispute. You made a statement that the CFMEU covers fitters and electricians. Do you stand by that?---Sorry, that the?
**** STEVEN PAUL ROACH XXN MR WOOD
PN4648
That the CFMEU can cover fitters and electricians?---Under the CCID rule at M, were entitled to cover fitters within brick and tile plants. Whether we choose to or not is another matter.
PN4649
That is the brick industry but that is only if this turns out to be a brick industry and not a concrete industry?---No, no. Well - - -
PN4650
Have you got general coverage or just - - -?---Well I don't know. I would have to have a look at the rule specifically.
PN4651
Don't worry about it?---Look, we have got some fitters, as I said, and others, we - you know, out at for example Nubrik, I alerted the AMWU to the fact there are a number of fitters there. I mean, it comes down to what you think is going to be better for the worker. Because, to be honest, I would far prefer an AMWU official who had familiarity with fitters and the trades to be dealing with their issues. I would feel more confident that they would be able to do a better job than I would. You know, depending on the circumstances, depending on the plant, depending on the particular member. But I have encouraged a number of people to join the AMWU because I felt it was better for them. And even in the case where I don't particularly get on well with the particular organiser at hand, there, you know.
PN4652
All right. You gave some evidence about the SRWU. Isn't it fair to say that the trade union movement, in general, is opposed to the new registration of unions?---Generally, yes.
PN4653
And it is the case that even the Victorian Trades Hall Council didn't allow the SRWU to - - -?---Affiliation. Yes, that is right. But I think, in fairness, while I understand that if they had have allowed us to affiliate it might have opened the doors to new organisations that weren't fair dinkum organisations. Now that doesn't say that I was happy about it.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4654
All right?---But let me add. It is incredible, isn't it, that, for an organisation that isn't registered and has been under such intense attack that it is still out there, it is still operating. And if the AWU one day learned to look after those workers in those rural industries as well as they should, you know, maybe they will decide it is time to pack up and go home.
PN4655
Like you used to do for the AWU before you left?---I proposed to the AWU - - -
PN4656
Is that a fair question?--- - - - almost on the day we split from them, that I would be happy to recommend to the workers to return to the AWU, if they put in place a structure such as a national agricultural and pastoral workers division, to take into account the unique characteristics of that industry and to make them feel as though they belonged to a union that was concerned about their industry. And they, for all the time I was there, the six years, they repudiated it. They kept offering me a job on the grounds I just take, you know, take those people away. Well it is pertinent to the point that Mr Wood raised. I mean, I am not going to allow to go on record a question - - -
PN4657
All I asked you was whether you were allowed to be registered in the Victorian Trades Hall Council. You answered the question. I didn't ask you about the history of your association with the AWU?---Well, okay.
PN4658
You can probably give that to me later.
PN4659
THE SENIOR DEPUTY PRESIDENT: Have you got much more, Mr Wood?
PN4660
MR WOOD: I have got two very short questions. I have got two short questions. One is, you can't or don't speak on behalf of the AWU, do you?---No.
**** STEVEN PAUL ROACH XXN MR WOOD
PN4661
No. So if I tell you that there is no way the AWU is ever going to have an agreement with the CFMEU as a single bargaining unit at that site, you have got to take that for what it is worth. You have got to take that from the AWU, haven't you?---The AWU at this time, yes.
PN4662
No. No, I am saying forever?---Well I am afraid I am unfamiliar with your immortality attributes. But let me suggest that one day when you do pass on by, as Mr Shorten put it, there might be somebody who disagrees with you, who holds that position - - -
PN4663
All right. Well not in my lifetime anyway, with the AWU?--- - - -so it is not really set in stone, is it?
PN4664
Okay?---As long or short as that may be, yes.
PN4665
As long or short as that may be. Finally, the last question. You put in your statement at number 19:
PN4666
There is no impediment to the CFMEU being party to the enterprise agreement with the AWU, AMWU and Boral.
PN4667
Of course there is an impediment, isn't there? Because if Boral says you are not in, under the current Act that you keep throwing up to everyone and sundry, you don't get in?---Well, well, I don't agree with that, Mr Wood.
PN4668
You don't, you don't agree with it. Even if the High Court says that that is the way that the mop flops?---Well let us wait and see what the High Court says.
PN4669
Well they have said it. You can't even get intervention let alone get in?---We will see. I mean, if you - - -
**** STEVEN PAUL ROACH XXN MR WOOD
PN4670
PN4671
THE SENIOR DEPUTY PRESIDENT: Submissions.
PN4672
MR PARRY: Your Honour, there as one document that was referred to by Mr Olsen in evidence. You might recall that there was a letter tendered by Mr Roach, exhibit C1, which was a letter that Mr Abrahamson of the AMWU sent to him. Mr Olsen referred in evidence to a reply that he had written. Now, he didn't have it at the time. I have a document here which I would like to tender which on its face is that reply.
[4.19pm]
PN4673
MR ROACH: Your Honour, if this is to be marked as an exhibit, would it not be prudent to have Mr Olsen cross-examined on the contents of this alone?
PN4674
THE SENIOR DEPUTY PRESIDENT: Do you wish to cross-examine him on it?
PN4675
MR ROACH: Subject to what - I would like to have a read of it first if that is all right, your Honour.
PN4676
THE SENIOR DEPUTY PRESIDENT: Well, read it.
PN4677
MR ROACH: Yes, I would like to cross-examine him on it, your Honour.
PN4678
PN4679
THE SENIOR DEPUTY PRESIDENT: You remain sworn, Mr Olsen.
PN4680
MR PARRY: Perhaps if I could hand - I will hand the letter to Mr Olsen. If your Honour pleases.
PN4681
Mr Olsen, in your evidence, you referred to a letter in reply that you sent to a fax received from Mr Abrahamson; is that the letter in reply?---Yes.
PN4682
PN4683
THE SENIOR DEPUTY PRESIDENT: Mr Wood, any cross-examination on it?
PN4684
MR WOOD: No, I have got no questions, your Honour.
PN4685
PN4686
MR ROACH: Yes.
PN4687
Is this the only bit of correspondence beyond Mr Abrahamson's letter to you between yourselves and the AMWU pertaining to the nature of a proposed EBA for that site?---In terms of correspondence, we received and I believe I refer to it here, the maintenance employees, particularly the AMWU, submitted a log of claims to the company one week before the previous fax dated the 6th was sent to us and there were some discussions held with both the AMWU and the ETU - I think it is the ETU - on that issue, and those discussions are still continuing.
**** ALAN HARVEY OLSEN XXN MR ROACH
PN4688
Who first proposed the maintenance workers do an agreement separate to the production workers?---Initially, as I gave in my evidence, there was a suggestion by the maintenance workers back in January that there be an agreement between the workers and the company without any union involvement.
PN4689
But that changed, of course, when you did the draft for the proposed new agreement that was presented to workers on 20 March?---Yes. To be honest, Mr Roach, the maintenance employees have changed their position several times, so -
PN4690
Well, when did you decide to hive off out of the agreement the maintenance workers?---That would have been early - I would suggest some time March, April, that type of thing.
PN4691
And when did you convey that decision to the AMWU?---The issue relating to the EBA was conveyed to all employees and that, of course, included the AMWU and the ETU, I would suggest in May.
PN4692
In May?---My memory may not be accurate in that regard, but I do remember we had a very well-conducted meeting towards the end of May and that was the one that ended up issuing the documentation for the EBA.
PN4693
Who was in attendance at that meeting?---As far as I am aware, everybody.
PN4694
So the meeting was between management and the workers?---And - yes, yes, it was. I issued a note, but - my previous evidence indicated this, it was up on notice boards, everybody, as far as I am aware, was issued with the relevant documentation; that included the eligibility to vote document that you referred to earlier in the day, the EBA and we took a roll of those who were present and those who weren't present we sent the documentation out by courier. So as far as I am aware, every employee on the site was made aware of our position at that time.
**** ALAN HARVEY OLSEN XXN MR ROACH
PN4695
Okay. And when did you first inform the AMWU official that it was your intention to negotiate a separate agreement?---I can't recall a particular date, to be honest.
PN4696
Was it before 6 June?---I am sure that Peter Abrahamson was well aware before 6 June, because after 23 May it was obvious to all employees on the site, and that includes their representatives, that this was the position that we were going to take for the vote, and we had previously had some discussions with Peter only a week before this note went out, so Peter was well aware of what was going on.
PN4697
Well, he was as at about 30 May?---I would suggest that the AMWU knew very well on 23 May because that is the day the meeting took place and everybody knew then.
PN4698
And this is after you had scrapped the idea of the one agreement which had been custom and practice for a number of different agreements?---Yes, that agreement that you are referring to was earlier in the year, and this was a production EBA.
PN4699
Why did you want to do a separate production EBA?---It made sense to have a production EBA, that the agreement had been achieved with the employees and the AWU and it made sense to have that agreement proceed. And the maintenance employees, their position was relatively uncertain and at this point in time we still have not concluded discussions with the maintenance employees with their EBA, although discussions are fairly well advanced.
PN4700
Well, it would be fair to say that the majority of the maintenance workers do not support the same terms as are contained in the production workers EBA?---I could be corrected on this; as far as I am aware from the discussions that took place before I took leave and subsequent to that there have been some discussions while I was on leave so I don't claim to know exactly what was said, but essentially the documentation that we have been discussing with the AMWU is very similar in almost all respects to the EBA that was negotiated with production employees with some provision for parts that are peculiar to maintenance employees.
**** ALAN HARVEY OLSEN XXN MR ROACH
PN4701
But the fact that you haven't got an agreement at the moment when the same terms are on offer as with the production workers agreement would lead you to conclude that the majority don't support the terms and conditions in the production workers agreement?---To the contrary. I believe that unless something has happened while I have been on holidays, I was of the view that the maintenance employees would conclude an agreement that had minimal variation from the, I suppose, 95 per cent of the content of the production EBA.
PN4702
If that were the case though, why isn't it endorsed now?---I think it - the answer to that, I believe, is that the maintenance employees have changed their position many times and, as I said, they - initially they wanted a deal without any union involvement, which is their right.
PN4703
But at that time, it was - the only union that they felt was open to them was the AWU, isn't that right?---No, to be honest, the positions that they said to myself was they preferred at that time to have no union involved in negotiation, full-stop.
PN4704
But the AMWU were not on the site at that time, were they?
PN4705
MR PARRY: Your Honour, this is a letter that - really, this has been ground that has been covered. I have handed up a letter that was sent in June, we have allowed cross-examination with regard to that. We are now going back over areas we have been through in previous cross-examination.
PN4706
MR ROACH: I am not going to be much longer, your Honour, but I do want to tack this point down. There is a very - there is a wide discretion in the vote once the maintenance workers are taken out, and it is our contention that the company deliberately did it to manipulate the numbers. Now, Mr Olsen - or Mr Parry has submitted exhibit B10, which on the surface appears to - you know, appears to demonstrate that there was some understanding between the AMWU and management on this issue. We don't believe that is the case, therefore I want to try and ascertain why Mr Olsen would try to hive off the maintenance workers out of the agreement.
**** ALAN HARVEY OLSEN XXN MR ROACH
PN4707
MR WOOD: Well, there is also evidence, and I have got to support the objection here, it was the AWU who said, off you go if you can't reach agreement, and that in cross-examination to Mr Roach. So as much as he might want to paint the employer as the bad guy here, and it is not me to get them off the hook on that, it was the AWU who said we owe a duty to our members, they have reached agreement, they want it registered, and off we went. We said - and we had a deal with the metal workers. The metal workers aren't here and never have been here or on the certification of the agreement.
PN4708
THE SENIOR DEPUTY PRESIDENT: I take it you are not going to be much longer, Mr Roach.
PN4709
MR ROACH: No, your Honour.
PN4710
THE SENIOR DEPUTY PRESIDENT: Yes.
PN4711
MR ROACH: Mr Olsen, the AMWU were not on the site in January, were they?---No, they were not. In fact, almost all of our maintenance employees at the time were, if I can use the term, body hire. Most of them were not Boral employees. It was only later in January that they became - or some of them became Boral employees.
PN4712
That is except for Miguel. He was a direct employee, wasn't he?---As far as I can recall, Miguel became a Boral employee a little bit later than January.
PN4713
But Miguel was a member of the AWU ?---To be honest, I am confused about Miguel's union membership. I have heard that he was a member of the three unions, but to be honest, I am not qualified to talk about union membership because I wouldn't know.
PN4714
Believe it or not, there are people who do collect union tickets, but I don't know about Miguel. Passanise, is that how you - - -?---Yes, yes, everybody at Boral seems to refer to one another by their first name because the surnames are pretty complex.
**** ALAN HARVEY OLSEN XXN MR ROACH
PN4715
Yes. Is it a possibility that they wanted to do a non-union agreement because they believed that the only other option was to have the AWU negotiate the agreement?---I don't believe that that was in their considerations, but that is just my opinion.
PN4716
But the AWU were the only union on site at that time?---I am not sure those two facts are related.
PN4717
No. Yes or no, were they the only - - -?---Yes.
PN4718
No further questions, your Honour.
PN4719
PN4720
MR PARRY: Mr Olsen, you spoke about a decision to, as it were, hive off the maintenance workers in March or April; was that decision made solely by the company or was there consultation with the fitters about that?---There was a lot of consultation/discussion with the fitters. I really believe that the - from the discussions with the fitters, it took them a long time to sort out what their needs were. So they preferred at that time to work out their own arrangements with the company and had discussions and, in fact, negotiations with the company independently.
PN4721
I have nothing further of Mr Olsen. If he could be excused for the third time.
PN4722
THE SENIOR DEPUTY PRESIDENT: Yes.
PN4723
PN4724
THE SENIOR DEPUTY PRESIDENT: Submissions; I understand you have a problem tomorrow, Mr Parry.
PN4725
MR PARRY: I do, your Honour. The position is that there is - firstly, I have a problem and I will come to that - but there are four days of transcript; we would want to prepare carefully taking into account the evidence. We accept that much of the evidence is going to be irrelevant, but some of it will no doubt be important. Submissions will need to cover legal questions and factual issues and we would want to do that after consideration of the exhibits and the transcript. Ideally, we would prefer written submissions and a program for that. I have had discussions with Mr Roach about that and he opposes that course because he says that he doesn't have the resources for that.
PN4726
Now, in those circumstances, we would propose that there be one day set aside in around two weeks time to allow the three parties to make submissions on the legal and factual issues. In my submission that would probably be a process that would allow parties to read the transcript and hopefully hone down their submissions a bit more.
PN4727
As your Honour has noted, and as - I have told your Honour's Associate and I have told Mr Roach, and it is a fault of mine and it is no fault of anyone else's, but when this matter was set down for hearing, I marked four days in my diary. A matter was fixed in the County Court which I have been involved in, it is an appeal from a prosecution in an occupational health and safety matter. I have told Mr Roach and I think your Associate that it is fixed not to start before 12 o'clock. However, that would leave us in the position, and given that we are the applicant, that we would need to start.
PN4728
Now, I appreciate it is only a factor to take into account and I note that the Commission did set this down for five days, so that is a further problem of mine, but in my submission one day's worth of hearing would allow both hopefully fairly narrow submissions focussing on the issues rather than commencing tomorrow, I wouldn't be here from about 11.30 onwards in any event. So that is our preferred course, if your Honour pleases.
PN4729
THE SENIOR DEPUTY PRESIDENT: Mr Wood, do you have any views on that?
PN4730
MR WOOD: The AWU has no objection either way and we are in the hands of the Commission as to what they decide to program eventually. If the Commission pleases.
PN4731
MR ROACH: Your Honour, I reluctantly accept Mr Parry's proposition that we set a day aside in about three weeks time. I say three weeks because I have got an exec meeting in Sydney in the first week of December, and probably the week after that might be appropriate.
PN4732
THE SENIOR DEPUTY PRESIDENT: You are suggesting the week beginning 9 December?
PN4733
MR ROACH: I was looking 9th or 10th December. I was thinking maybe the 10th, but the 9th I am easy with, too, your Honour. I think it is probably fair to Mr Parry to enable him to go over the transcript, but I am limited in my resources and I would prefer to do final submissions in here.
PN4734
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I am content that we go to another day, so we will go off the record to set that day.
OFF THE RECORD
PN4735
THE SENIOR DEPUTY PRESIDENT: I will set this matter down for further hearing at 9.30 am on 10 December 2002 here in Melbourne. I will now adjourn until that date.
ADJOURNED UNTIL TUESDAY, 10 DECEMBER 2002 [4.41pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
DAVID BRIAN ANDERSON, ON FORMER OATH PN3875
CROSS-EXAMINATION BY MR PARRY PN3875
CROSS-EXAMINATION BY MR WOOD PN4048
RE-EXAMINATION BY MR ROACH PN4117
FURTHER CROSS-EXAMINATION BY MR WOOD PN4158
WITNESS WITHDREW PN4165
STEVEN PAUL ROACH, SWORN PN4173
EXHIBIT #C10 WITNESS STATEMENT OF MR ROACH AND ITS ATTACHMENTS PN4176
EXHIBIT #C11 OUTLINE OF ARGUMENTS OF THE CFMEU PN4177
EXHIBIT #C12 WITHDRAWALS OF AUTHORITY TO DEDUCT MONEY FROM WAGES FOR REMITTANCE TO AWU DATED ON OR AROUND 19/03/2002 PN4183
EXHIBIT #C13 WITHDRAWALS OF AUTHORITY TO DEDUCT MONEY FROM WAGES FOR REMITTANCE TO AWU DATED ON OR AROUND 05/04/2002 PN4183
CROSS-EXAMINATION BY MR PARRY PN4206
CROSS-EXAMINATION BY MR WOOD PN4520
WITNESS WITHDREW PN4671
ALAN HARVEY OLSEN, RECALLED PN4679
FURTHER EXAMINATION-IN-CHIEF BY MR PARRY PN4679
EXHIBIT #B10 LETTER TO MR ABRAHAMSON FROM MR OLSEN PN4683
CROSS-EXAMINATION BY MR ROACH PN4686
RE-EXAMINATION BY MR PARRY PN4720
WITNESS WITHDREW PN4724
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