C2004/4925, Transcript of Proceedings [2004] AIRCTrans 3203 (16 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8098
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2004/4925

COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA

and

KELLOGG BROWN AND ROOT PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re wages and working conditions

MELBOURNE

10.42 AM, WEDNESDAY, 4 AUGUST 2004

Continued from 3.8.04

PN1372

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Kint, you are still in the witness box. Would you like to return?

<JOHN KINT, ON FORMER OATH [10.42am]

<CROSS-EXAMINATION BY MR BORENSTEIN

PN1373

THE SENIOR DEPUTY PRESIDENT: Yes, you are still under your former oath or affirmation, Mr Kint, thank you?---I understand, your Honour.

PN1374

Go ahead, Mr Borenstein.

PN1375

MR BORENSTEIN: Thank you, your Honour.

PN1376

Now, Mr Kint, do you have a copy of your witness statement with you?---I do.

PN1377

Now in your witness statement you say that the manning levels of the contractors are not influenced by KBR in any way. Now do you still say that is a true and correct statement?---That is correct.

PN1378

Despite - now do you acknowledge the fact that you are able to limit the manning levels by not approving any further employees?---I don't understand the question.

PN1379

Well, you would have the contractual right not to approve further employees of contractors, correct?---That is correct.

PN1380

It therefore follows, doesn't it, that you are able to control the manning levels by limiting the manning levels that the contractors have?---And we have to do that so that we can manage the total number of people on site, and we do that also in conjunction with the total program so that we do control the numbers of people on site.

PN1381

Well, okay, so you do control - you do influence the manning levels of the contractors?---Across the board to manage the site.

**** JOHN KINT XXN MR BORENSTEIN

PN1382

Well, and across the board you are referring to the contractors employees?---Not the contractors. If the contractors can demonstrate that for them to meet the schedule then we will sit down and discuss that with them. If they have to increase their numbers - - -

PN1383

So first of all you say you don't influence it in any way but then you say well if they want to increase the numbers they have to come to you first to get your approval. That is what you just said then isn't it?---Don't misunderstand the intent of how we control the site.

PN1384

I am not - well on one stage - I am not worried about the intent. On one hand you are saying, "We don't influence them in any way, they can do whatever they like." On the other hand you are saying, "Well we have to control them and regulate the manning levels because we need to manage the site"?---Correct.

PN1385

So you do influence the manning of the station?---If that is the term of controlling the manpower on site, then that is correct. And don't forget we have got 22 odd contractors on site so we have to understand how many people these contractors wish to bring on site.

PN1386

That is right?---And so we discuss that with them to see how it fits in with the schedule. And if their numbers indicate that their schedule will be accelerated to the extent where it does not fit in with the overall schedule then we discuss that with them.

PN1387

So there is - in respect - you now agree, I think, that you will be involved in determining the number of people the contractors bring on site to perform the work?---IN the first instance the contractors determine their numbers to meet their contractual requirements.

PN1388

Yes?---In the first instance.

**** JOHN KINT XXN MR BORENSTEIN

PN1389

And then you have a somewhat right of veto of that?---That is correct.

PN1390

So I think you would accept that paragraph 6 of your affidavit is not true and correct and to say that they are not influenced by KBR in any way about their manning levels is not true and correct?---If the manning levels are in excess of what we believe to be a schedule requirement then we step in.

PN1391

Now we were referring - yesterday we were referring to your letter, which was conveniently provided to Corke shortly after they notified a dispute to the disputes board. Now overnight you were going to check whether you sent the same letter to Positron?---That is - and we have checked that subsequently and it wasn't to Positron, it was to Mr Lucon.

PN1392

Okay, so you hadn't - you didn't do the same for Positron?---No, we did not.

PN1393

Okay?---But we did do it to another - - -

PN1394

And did Positron ever notify you of a dispute to the disputes board?---Not that I can recall.

PN1395

Now do you recall that you kept that view that Corke didn't need any further manning levels and you stated that to Corke on 26 May, do you recall that?---The letter going to Corke?

PN1396

No. You sent the letter on 7 May or 6 May, on 26 May you had a conversation with Mr Corke where you said, "No, your manning levels are sufficient and we are not going to approve any extra people"?---Correct. If that is what was stated.

PN1397

So that is consistent with your recollection?---Correct.

**** JOHN KINT XXN MR BORENSTEIN

PN1398

And that was at the meeting between Mr Kennedy and Mr Corke and yourself in Melbourne?---Correct.

PN1399

Correct. And at that meeting it was - they came along and said, "Look, we have got a decision from Mr Merriman that we should employ Mr Dunsmuir," did they advise you of that?---Correct.

PN1400

Correct. And they said, you know, "For industrial relations practices we think he should be employed on the site."?---The actual words were something like, "For industrial relation practices we think we have got a fix."

PN1401

We think we have got a fix?---A fix.

PN1402

We have got to fix or got a fix?---No, we have got a fix.

PN1403

And that was?---We can employ Mr Dunsmuir.

PN1404

Yes?---You write us out an RFS and we will keep him at home.

PN1405

What is an RFS?---A request for services. In other words, you pay for him and we will keep him at home.

PN1406

Okay. And what was your response to that?---I think if you read Reg's letter, or statement, it was a very short, sharp meeting.

PN1407

What did you - - -?---And that would be indicative of the result.

PN1408

Well, yes, what did you say?---I said, "That is totally unacceptable to our industrial principles and we will not entertain that in any way, shape or form. But if you wish to employ him, Reg, that is entirely your business."

**** JOHN KINT XXN MR BORENSTEIN

PN1409

Yes. Did you say to him about - and you also said to him on site, "You have got sufficient numbers on site and we are not going to approve anybody"?---That is correct.

PN1410

Yes. And did you intend that to apply in the future as well?---At that time that was applicable for the workload that they had.

PN1411

Okay. Their workload hasn't changed since that time?---There are certain areas that are opened up from time to time and certain areas that become unavailable too from time to time.

PN1412

Are you able to explain what they - since 26 May - whether Corke has required extra people on site?---There has certainly been a requirement to bring in a specialist, a specialist cable pulling contractor - who they employed.

PN1413

Yes?---We don't have a problem with that.

PN1414

And is that the only change to their job that has been required?---To my recollection.

PN1415

So would you be surprised that I think on 8 June two extra people were put on, not as specialists, but two extra people were put on the site?---I would not be surprised.

PN1416

Well, on 27 May you are not approving anybody and saying your numbers are sufficient, and then 11 days later, without any evidence of a contract or the project changing so that two extra people are required, they are freely allowed on without any issues?---That is their call, as I said, we don't influence the numbers. If they see a requirement to increase the numbers because of their schedule that is their business.

**** JOHN KINT XXN MR BORENSTEIN

PN1417

Well, there is no evidence that they required extra numbers. They are - - -?---Well we don't call for the extra numbers.

PN1418

Well, they have come to you and said, "We want to put Mr Dunsmuir on," and you say, "No, sorry, we are not approving anybody more. You have got sufficient numbers, use the people from your pool"?---No, they never said, "We want to put Mr Dunsmuir on."

PN1419

They came to you to talk about putting Mr Dunsmuir on?---Yes, and I said to Mr Corke, "You put the processes in place, like everybody else, and we will see if it gets through."

PN1420

So you are saying that you might have - if they had come to you and said, "We want Mr Dunsmuir approved on the project," you would have said yes?---I would never have said that, no.

PN1421

And are you really trying to say, after the efforts of the contractors, that you had not disproved Mr Dunsmuir, you had not rejected Mr Dunsmuir?---We have not rejected Mr Dunsmuir.

PN1422

And even though both Positron and the representatives from Corke have said that they put him in a pool of people to be - they put him in a list of people to be approved onto the site and they took it that he was rejected?---Mr Milne is our industrial relations officer. Mr Milne handles all of those issues with all of the people, and the cross checking, and the checking, and the approvals or not for people that enter the site. If you wish to take that up with Mr Milne please do so.

PN1423

It is clear, isn't it, that you are using this approval process as a way of controlling which - of a way of having a right of veto about which employees come onto the site - sorry, I will withdraw that question. Do you still say after the evidence of the contractors that the process is a two step process or a one step process?---Two step process.

**** JOHN KINT XXN MR BORENSTEIN

PN1424

And you stick to that despite the evidence that you have heard from the contractors?---A two step process.

PN1425

And can you explain that process to me?---The process is that the contractors by the contract are required to submit a pool of people.

PN1426

They submit a list?---A list of people, a pool. That pool is then scrutinised with Mr Milne and with the contractor.

PN1427

And how is that scrutinised? What do they do?---With the contractor. They select from that pool their preferred list of people.

PN1428

Well, you heard the evidence that contractors - that both Mr Johnson and Mr Dodgshun purely said that all they did was give you a list and that they came back with yes or no's?---A two step process.

PN1429

And you say - and it is quite artificial, isn't it, to say it is a two step process because the contractors can't put forward an employee for the induction process if he hasn't been approved from the list that he first gives you?---That is not correct.

PN1430

So you are saying someone can put an employee who has not been approved off a list up for an induction process?---I think if you look at the record there was a number of people that because they were permanent employees of Positron they were put forward because they had no other work for them and they were approved.

PN1431

Were they put onto the list?---They weren't on the list.

PN1432

So they didn't go for the two step process?---They went through the two step process, or one step process. One is, "We would like to put forward this person because we have no other work for him," and an approval process is then looked at by Mr Milne.

**** JOHN KINT XXN MR BORENSTEIN

PN1433

So there is a discretionary ability on your behalf to either apply a two step process or a one step process for employees?---Do we not have that right?

PN1434

Well first of all you are saying it is a two step process that applies to everything and now you have just changed your view and saying, "Well, no, it is not a two step process, in some instances it is a one step process"?---Do we not have that right?

PN1435

Well - - -

PN1436

THE SENIOR DEPUTY PRESIDENT: Just answer the question would you, Mr Kint. You don't have to advocate your case from the witness box?---My apologies, your Honour.

PN1437

MR BORENSTEIN: So - - -

PN1438

THE SENIOR DEPUTY PRESIDENT: What was your answer sorry?---There are circumstances - it is still a two step process as such - they are forwarded - - -

PN1439

MR BORENSTEIN: But you just don't apply it every time?---Correct.

PN1440

And you have used this so called two step process as a convenient way of saying, "Well, you have never not approved Mr Dunsmuir"?---Correct.

PN1441

Because you say, "Well, he was only put on the list of employees and that is only the first step and he hasn't been submitted for the second step and therefore, you know, we have done nothing, we haven't rejected him, we haven't accepted him, we have done nothing wrong," that is correct isn't it?---Correct.

**** JOHN KINT XXN MR BORENSTEIN

PN1442

Now in paragraph 7 you say that:

PN1443

KBR does not have any responsibility or ability, contractually or otherwise, to influence how these contractors carry out their employer/employee relationships.

PN1444

?---As stated.

PN1445

Do you still agree with that statement or would you wish to qualify that?---

PN1446

KBR does not have any responsibility or ability, contractually or otherwise, to influence how these contractors carry out their employer/employee relationships.

PN1447

And I think it was identified earlier in the piece that on a day to day basis.

PN1448

Would you consider overtime something that relates to the day to day employment relationship?---The contractors come and talk to us about their requirements to work overtime to beat the schedule.

PN1449

Well, isn't that having some involvement and ability to influence a day to day activity?---I think the - - -

PN1450

If you say, "No, we don't want overtime worked on this day," or "We don't think you should be paying these people overtime." I mean, you have the ability, don't you, to make decisions regarding overtime?---That particular clause is made in relationship to their day to day activities. I don't believe that overtime - - -

**** JOHN KINT XXN MR BORENSTEIN

PN1451

Yes, and you have an involvement in that?--- - - - I don't believe that overtime is classified as a day to day activity.

PN1452

Well, I think that is highly artificial. But you agree that you do have an ability to influence on overtime?---With regards to scheduled work on the project, yes.

PN1453

And it is true, isn't it, that in the contract you reach with these contractors you set out what terms and conditions of employment they must apply on the site?---Correct.

PN1454

And those terms and conditions apply to the employees from day to day don't they on the project?---We refer the unsigned EBA with regards to the conditions of the site.

PN1455

So if a contract - - -

PN1456

THE SENIOR DEPUTY PRESIDENT: Yes, sorry, did you describe it as an unsigned EBA?

PN1457

MR BORENSTEIN: Unregistered did you- - -?---I am sorry, unregistered. It has a memorandum of - - -

PN1458

THE SENIOR DEPUTY PRESIDENT: It has been signed?---It has been signed, yes. Yes, my apologies.

PN1459

Yes, thank you.

PN1460

MR BORENSTEIN: And it would be true, wouldn't it, that if a contractor tried to apply other terms and conditions at the site that it would be in breach of your contract?---We make absolutely certain that all of the contractors religiously work to the terms of the site agreement.

**** JOHN KINT XXN MR BORENSTEIN

PN1461

Site agreement.

PN1462

THE SENIOR DEPUTY PRESIDENT: Does that go so far as saying that if they have an agreement that provides a higher rate they are not allowed to do it, or are you really saying you make certain that they comply with the minimum requirements of the - - -?---The minimum requirements. If there is other conditions they can apply those.

PN1463

Yes, thank you?---Minimum requirements.

PN1464

MR BORENSTEIN: And it is true that you are always promptly advised and require the contractors to promptly advise you of any disputes of an industrial nature that may affect or occur on the project?---It is a requirement of the contract.

PN1465

Yes?---But in the first instance that would be directed to Colin Milne.

PN1466

Okay, he is your agent?---Correct. And the site representative.

PN1467

And that has been the practice on the project?---That is correct.

PN1468

Sorry. Now can I ask you to turn to C108? Now this is the last page of a kick off meeting that you were in attendance at?---M'hm.

PN1469

Now see there it says that Corke was to have a delegate, now this is the meeting which Chris Dodgshun says that you advised Corke that Dunsmuir - that you didn't like Dunsmuir and that he wasn't to come onto the site I think?---I don't recall making those statements ever.

**** JOHN KINT XXN MR BORENSTEIN

PN1470

So you disagree with Mr Dodgshun that you had this on this day - that you didn't say that you didn't want Mr Dunsmuir on the site?---I don't recall making those statements.

PN1471

You don't recall it?---No.

PN1472

So you might have?---I don't think so.

PN1473

You obviously talked about the delegate?---It was our intention at that time to make sure that every contractor who came onto the site had as part of his crew a representative.

PN1474

And you don't recall Mr Dunsmuir's name being raised at that meeting?---No, I don't.

PN1475

If Mr Dunsmuir's name had been raised at that meeting what would you have said?---It would need to go through the processes just like everybody else.

PN1476

Okay, so you wouldn't have said - - -?---Employment processes.

PN1477

- - - so you would have said that he may be approved onto the site?---I would not have said that. The employment processes - it is clearly identified.

PN1478

So if his name was raised you would have said, "Well, we have to go through the employment - give us the list and we will determine it"?---Yes.

PN1479

Why wouldn't - I mean why wouldn't you have said, "No, we don't want Mr Dunsmuir, he has said these things and we don't want him on the project"?---I can't have people quoting me in one way or another.

**** JOHN KINT XXN MR BORENSTEIN

PN1480

What do you mean by that?---In issues just like this I can't afford to have people quote me.

PN1481

So you would rather just keep it secret?---I don't think it is a secret. I don't make rash statements.

PN1482

So it would have been a rash statement to make?

PN1483

THE SENIOR DEPUTY PRESIDENT: What would have been the rash statement, Mr Kint?---Please ask me the question again.

PN1484

I am sorry?---I am sorry, Judge - your Honour. It was a question that - - -

PN1485

MR BORENSTEIN: I think I said why wouldn't you have said to Mr Corke that we don't want Mr Dunsmuir to be on the site?---That would have been a rash statement on my behalf.

PN1486

Why would that have been a rash statement?---I wouldn't make that.

PN1487

No, but why is it rash?---Because it could be construed as being - there is a word for it - - -

PN1488

Discriminatory?--- - - - selective, discriminatory, correct.

[11.07am]

**** JOHN KINT XXN MR BORENSTEIN

PN1489

THE SENIOR DEPUTY PRESIDENT: But isn't it the case that you have made, effectively, that statement; didn't you at the meeting on 26 May with Mr Corke and Mr Kennedy, according to your evidence this morning, say that you would not employ Mr Dunsmuir in any shape or form?---What my comment was at that meeting, your Honour, was: you may put forward Mr Dunsmuir and he will go through the proper selection processes; if you wish to employ him in your own right, you may do so, we cannot stop you from doing that.

PN1490

Do you recall giving evidence this morning that Mr Corke and Mr Kennedy had said, "We think we have a fix. You issue a request for services, and we will keep him home"; do you recall giving that evidence?---I do, yes, correct.

PN1491

Do you recall then being asked what you said, in reply to that, and my note of what you said was:

PN1492

That would be totally unacceptable to our industrial relations principles. We will not employ him in any shape or form.

PN1493

Do you recall giving that evidence?---If that is what I said, then that is taken somewhat out of context.

PN1494

Well, are you - - -?---But under those circumstances to - in answer to that question, that is correct.

PN1495

Well, are you saying you did say to Mr Corke and Mr Kennedy on that occasion that you would not employ Mr Dunsmuir in any shape or form?---But that wouldn't just apply to Mr Dunsmuir, that would apply to anybody they put forward under those conditions, not just Mr Dunsmuir. And that was the context of the answer.

PN1496

Thank you.

**** JOHN KINT XXN MR BORENSTEIN

PN1497

MR BORENSTEIN: Now, in the notes of Mr Corke he says that you stated that while he appreciated Corke's intent, neither the end client or KBR were having the nominee on the site, and the members and people approved would meet our needs?---Can you - - -

PN1498

Sorry, that is on C291?---291, item?

PN1499

Sixteen?---I can't make that out. Jayco stated that?

PN1500

That whilst he appreciated our intent, neither the end client or KBR were having the nominee on the site; and the numbers and people approved would meet our needs?---Correct.

PN1501

So is that correct, what occurred?---This comment was made in the context of the question your Honour asked there before, and that was - the reply was that they can put forward anybody they wish but it will go through the normal application processes.

PN1502

And was that going to be the one step process or the two step process?---Two step process.

PN1503

Okay. Why not the one step process?---Two step process.

PN1504

Was that - is it determined that Dunsmuir has to go through a two step process rather than a one step process?---That is correct.

PN1505

Who determined that?---Mr Milne.

PN1506

And was that based on the fact that he is proposed to be a delegate?---It is a two step process. He has to go through the employment processes just like everybody else.

**** JOHN KINT XXN MR BORENSTEIN

PN1507

No, but that is incorrect. You just said previously that not everyone goes through the two step process?---They go through a process. Nobody gets approval to come on to the site without the checking processes being put in place, nobody.

PN1508

Well - - -?---Including Mr Grey.

PN1509

They go through a process?---Yes, they do.

PN1510

And it obviously is applied, depending on who the person is; correct?---In the context of your question, I would have to say yes.

PN1511

And going back to C291 at paragraph 16, you say that is correct in that that conversation did take place. You stated that whilst you appreciate their intent, neither the end client - which I think is what, BHP?---I am not sure if those words were used.

PN1512

Okay?---I can't recall.

PN1513

To that effect?---To that effect.

PN1514

And you weren't having the nominee on site. Now, are you saying that at that meeting you didn't say why the rash statement, as you describe it, you didn't say - you didn't advise them of that?---No, I did not. But I did on a number of occasions reiterate what the employment processes and approval processes were for getting people on to the site.

**** JOHN KINT XXN MR BORENSTEIN

PN1515

Okay. So you didn't - you say they come along with a proposal, and you said, look, whilst you appreciate their intent, Mr Dunsmuir, like all other employees, has to go through the employment processes and you have got sufficient numbers at the moment so - - -?---No, they were quite specific in what the intent was: you know, we can employ Mr Dunsmuir, we can leave him at home, and as long as you put an RFS in place to meet the commitments, the financial commitments, we will just keep it quiet. That was the intent.

PN1516

Now, that statement by you there is inconsistent with what you say in your affidavit at paragraph 22 where you describe what happened at that meeting. Now, you have made two statements that are inconsistent with that. One is that you have changed what Mr Corke came and proposed at that meeting. And, secondly, you say at paragraph 24 that you advised Mr Corke:

PN1517

...that we had reason to believe that Mr Dunsmuir intended to disrupt the site.

PN1518

?---And that was one of the - - -

PN1519

And:

PN1520

...that we had information that he had been making public statements to that effect.

PN1521

?---That is correct.

PN1522

Now, just previously you said that you didn't disclose why Mr Dunsmuir wasn't to be allowed on site at that meeting, and now you are saying that you did?---What you haven't got here is a picture of the discussions, the total discussions.

**** JOHN KINT XXN MR BORENSTEIN

PN1523

Well, this is your affidavit and it gives a description of what happened at the meeting. And now you are coming here and telling us that it is completely different?---I am not in the habit of having discussions on paper which have potentially serious consequences for particular parties, and I don't believe it is in the interest of a lot of people to air those sort of discussions and those sort of accusations. That is why it is not in this document.

PN1524

Okay. So everything that might have serious consequences for whatever party isn't included in your affidavit?---I wouldn't say that, no.

PN1525

But you say that don't give us the full picture, you don't wish to give us the full picture?---I have given you the full picture on everything that has been said.

PN1526

Well, I think you keep changing your evidence, Mr Kint. First of all you say that you don't want to disclose anything that may have consequences for other parties including yourselves, and then on the other hand you say that you have given us all the information needed irrespective of whether there are serious consequences. Which one is it, Mr Kint?---If you look at - if you look at the position of this particular issue, I don't believe it is in the best interests of all the parties to be putting on the table those sort of discussions which are clearly outside the accepted norm for employment of people. And if you don't identify that as being put under duress, then I have got a problem. My apologies, sir. That was the duress that Mr Corke was under.

PN1527

THE SENIOR DEPUTY PRESIDENT: Are you suggesting, therefore, Mr Kint, that the Commission should be asked to make a decision in this matter without having the full facts?---Your Honour, I was - - -

PN1528

Because you don't wish to put before the Commission certain matters that you say either happened or didn't happen?---I was very much aware that clause 22 would be introduced into these proceedings, and that all of the facts would be drawn out, very much aware of that.

**** JOHN KINT XXN MR BORENSTEIN

PN1529

But you didn't put it in your affidavit what you say are all the facts?---That is correct.

PN1530

Well, is what is in your affidavit, does that state at least some of the facts?---All of the other comments that are in that affidavit are correct.

PN1531

So paragraph 24 is correct?---That is correct.

PN1532

You see, what Mr Borenstein is putting to you is that you gave evidence not long ago that you did not tell Mr Corke at that meeting, or give Mr Corke at that meeting any reason for not - or why Mr Dunsmuir might not be employed. Now, which is the truth, paragraph 24 or your earlier evidence; that is what is being put to you by Mr Borenstein?---Item 24 is correct.

PN1533

Okay?---Item 22 is incomplete. Item 23 is correct.

PN1534

MR BORENSTEIN: Now, it is true, isn't it, that you - sorry, I withdraw that. Does KBR take an interest in who is going to be the delegate on the project for - at the relevant contractors?---We have stated to the contractors that they will elect a delegate.

PN1535

That the employees of the contractors will elect a delegate?---The employees of the contractors will elect a delegate.

PN1536

So you require there to be a process of the employees on the site electing the delegate, rather than it being appointed beforehand or the like, being nominated beforehand?---I believe that is correct.

PN1537

Okay. And is that consistent with - that is your understanding of how Colin Milne or yourself - communications with the contractors by yourself?---Correct.

**** JOHN KINT XXN MR BORENSTEIN

PN1538

Now, at C115 there is a letter from Hawk to Mr Frank Kennedy which says that you made an assertion at that meeting on 26 May that Graham Dunsmuir's name wasn't on the list?---And that was referencing the two step process. He wasn't on the second entry of that list. He was on the primary list but he wasn't on the agreed to - - -

PN1539

What happens in the second stage of the process, can you please explain that to me?---Under normal circumstances Mr Milne will sit down with the company representative at the site and select the personnel from that primary list of the people they want to commence the job.

PN1540

So you are trying to say that a list is provided by the contractors to KBR - - -

PN1541

THE SENIOR DEPUTY PRESIDENT: Excuse me for a moment.

PN1542

MR BORENSTEIN: Sorry.

PN1543

THE SENIOR DEPUTY PRESIDENT: I am sorry about that, Mr Borenstein. An urgent matter had to be attended to.

PN1544

MR BORENSTEIN: Just before we broke, Mr Kint, you were referring - you referred to the fact that in your communications to the contractor you advised them that you wished for the employees of the contractors to elect their shop steward rather than it being - someone being brought in as a nominated shop steward; correct?---Ask me that again.

PN1545

Just before we broke you stated that both yourself and Mr Milne had communications with the contractors saying that you wished for their delegate to be elected by the employees of the contractors on the project?---That is correct.

**** JOHN KINT XXN MR BORENSTEIN

PN1546

That is correct. And that you didn't want a person, a nominated person coming in to be that delegate?---I didn't say that.

PN1547

I think you accepted that you preferred that they be elected from the employees on the site rather than someone being brought in and said to be shop steward?---Yes, I don't - - -

PN1548

You agreed with that?---Yes.

PN1549

Yes?---Yes.

PN1550

THE SENIOR DEPUTY PRESIDENT: Could you raise your voice, Mr Kint, so I can hear you because - - -?---I am sorry.

PN1551

- - - you have got to throw it across the room so we all can. Thank you. I understand your answer to that was yes?---Yes, that is correct, yes.

PN1552

Yes, thank you.

PN1553

MR BORENSTEIN: What interest does KBR have in telling its contractors how the union delegates should be elected or come about?---What interest does KBR have - - -

PN1554

Yes?---In?

PN1555

In advising the contractors on how their delegates should be elected?---We don't advise them how to elect them. We advise them that they can - that they elect a member of their crew as per the requirements. Each company needs a representative.

**** JOHN KINT XXN MR BORENSTEIN

PN1556

Where is that requirement?---Check with Mr Milne.

PN1557

You are not aware of the - where the requirement is?---No, I don't.

PN1558

So, but you say that you have discussions with the contractors about them electing their shop steward, their union delegate?---I personally do not.

PN1559

Are you - just before you said that you did, you were aware of that occurring, and I think - - -

PN1560

MR MILNE: Your Honour, in that - Mr Kint did actually say that I sit down with the representatives of the company on site, not he and I.

PN1561

MR BORENSTEIN: That goes against my recollection. I thought that both yourself and Mr Milne did have communication with the contractors about having the delegate elected by the employees?---The primary responsibility of Mr Milne is to deal with - - -

PN1562

No, I understand that?--- - - - IR situation at the site.

PN1563

I understand that, but you are involved in it as well, Mr Kint, and you are at the kick-off meeting where the issue of delegates was clearly discussed, where we have evidence of Corke saying that Mr Dunsmuir's name came up, and that you said you didn't want him on site. That is the evidence of Corke. You deny that but - or do you still deny that?---I do.

PN1564

And so you were involved in the discussions regarding a delegate, and you gave evidence before that both yourself and Mr Milne had had conversations with the contractors about having the delegates elected by the employees; correct?---Correct.

**** JOHN KINT XXN MR BORENSTEIN

PN1565

And in those discussions you said that the delegates should not be nominated third persons brought in, but they should be elected from the crew on the site?---Each company has the right to select their own representatives, that is correct; as would the HSRs.

PN1566

Now, and I again ask, why do you instruct the contractors to elect a union delegate?---Because I have that right to.

PN1567

But why would you instruct them to do so?---That is just good practice.

PN1568

So you take a - why is it good practice?---Each company needs to look after their own areas of responsibility.

PN1569

But why do you have to tell them how they elect that delegate?---As I said, it is good practice.

PN1570

Because it is a way of you actually controlling who that delegate is going to be, isn't it?---No, that is your assumption.

PN1571

Well, you say that you - - -?---It is good practice, sir.

PN1572

Well, is it good practice to only approve certain employees under the project and then to require that only from those employees the shop steward can be elected, is that good practice?---I believe it is.

PN1573

Yes, because in a way it is a way of you controlling who the range of people can be who are the delegates?---That is the same way as going out for a lump sum contract. You call tenderers. You control the number of people, you control the contractors.

**** JOHN KINT XXN MR BORENSTEIN

PN1574

Okay?---It is a method of running and maintaining and managing a job.

PN1575

That is right. And so, as you say, it is a way of - you are able to control the numbers of people and the way the contractors act?---To manage the site for the facilities that we have on the site.

PN1576

And how does controlling who is the shop steward - - -?---We don't control who the shop steward is.

PN1577

But you are able to prevent persons who you know have a history of being a shop steward on to the site?---We have a selection process.

PN1578

Yes, and that factor comes into that selection process, doesn't it?---You would have to check with Mr Milne.

PN1579

Are you aware of whether that comes into that selection process?---You would have to check with Mr Milne.

PN1580

I am asking are you aware of that coming into the selection process?---Mr Milne has a selection process - - -

PN1581

And you are not aware of that selection process?---No, I am not.

PN1582

So if Mr Milne was discriminating against people because they came from New South Wales, you would have no idea about that?---I would not.

PN1583

And this is even so, even though the fact that you were at the kick-off meeting where all these industrial relation strategies were discussed?---Even so.

**** JOHN KINT XXN MR BORENSTEIN

PN1584

So for all you know, Mr Milne could be breaking the laws in the way he selected people to come on to the site and you would have no idea?---I don't believe that Mr Milne would be breaking the law in the application of his work.

PN1585

And you don't discuss - you didn't give him any directions in respect to the selection process?---No, I do not.

PN1586

Do you have any idea what he does in the selection process?---No, I do not.

PN1587

So you wouldn't know whether he is hiring axe murders or the like?---Mr Milne doesn't know what I do in the administration of the site, neither do I do in his - in the way he delivers his part of the project. And there are many people on the site who I do not know exactly what they do from day to day, but in the overall picture it all comes together.

PN1588

Well, what do you expect that Mr Milne will do in the selection process; what is his criteria?---He has been involved in dealing with people for a long time.

PN1589

Yes?---He knows that the criteria is.

PN1590

But you don't?---I don't know what his criteria is, no.

[11.30am]

PN1591

Now, you would agree, wouldn't you, that Main Roads would have been very surprised at that time when their day rates work was finished up?---I don't believe they were surprised at all.

PN1592

You don't think they expected further work on the site?---They are still there.

**** JOHN KINT XXN MR BORENSTEIN

PN1593

I know, well they had that work at the time, but do you think they expected the work that you gave to the other contractors?---The work that was being carried out at that time by Main Roads, was just to keep Main Roads busy in the interim period for us to identify all of the outstanding issues. And they were just being kept on the site with some schedule breaks work.

PN1594

But you would agree, wouldn't you, that they expected to continue to do that day rates work as there was a sufficient amount there for them to continue to do?---Not for that particular work, no.

PN1595

Well, it was transferred over?---It was transferred, yes.

PN1596

That is right. So they expected to be doing it, and then the director said to you, "No, we are going to get other contractors to do it"?---It was not their area of expertise.

PN1597

Well, they were doing it though?---Just to keep them busy.

PN1598

But they could do it satisfactorily?---I would have to say yes, yes.

PN1599

You never advised them that they were doing it incorrectly?---No.

PN1600

No?---No, no reason to do that, no.

PN1601

No. So, instead of keeping them on, you decided to give it to another contractor?---Correct.

PN1602

Now, Mr Kint, in respect of the alleged statements said to be made by Mr Dunsmuir, I think you said that they were made by the motel licensee and his personal assistant?---Correct.

**** JOHN KINT XXN MR BORENSTEIN

PN1603

Are you aware of whether they are still working at - - -?---Yes, they are.

PN1604

So they are contactable?---Yes, they are.

PN1605

And I think yesterday you said that you hadn't tried to contact them in respect of this proceeding?---I informed them the proceedings were being carried out this week, yes.

PN1606

Okay, so you informed them they were being carried out, but you didn't inform them - okay, so you actually contacted them?---Yes, I did.

PN1607

And did you request that they come and give evidence?---No, I did not.

PN1608

Okay. And now KBR is a big company?---I would agree with that, yes.

PN1609

And it is a subsidiary of Halliburton?---Yes, it is.

PN1610

And Halliburton is one of the biggest construction companies in the world?---I believe it may be close.

PN1611

So, how many employees does KBR have around Australia, or how many employees does KBR have?---In Victoria?

PN1612

No, in Australia?---In Australia, it could be upwards of 1500.

PN1613

THE SENIOR DEPUTY PRESIDENT: I am sorry, I couldn't hear that?---1500.

**** JOHN KINT XXN MR BORENSTEIN

PN1614

Thank you?---And that is purely a guess, don't quote me on that.

PN1615

MR BORENSTEIN: And the amount of turnover at KBR; money, income?---I have no idea.

PN1616

Exceptionally large, you would have thought?---As I said, I don't go into the financials of the company. All I do know is what this particular contract is worth.

PN1617

How much is this particular contract worth as a ball park, I don't want to know the exact figure?---60 plus.

PN1618

Million?---Yes.

PN1619

So, KBR is quite a financially strong company?---If you take into account the current proceedings that are happening with the asbestos law suits in the United States, you may not be so confident.

PN1620

Okay, I won't go there. Okay, so Halliburton - the status of Halliburton has a direct affect on KBR?---Yes, it does.

PN1621

Okay, so you are sort of financially supported by Halliburton? In effect?---We have the backing of a very large organisation.

PN1622

No further questions, your Honour.

PN1623

THE SENIOR DEPUTY PRESIDENT: Just before you re-examine, Mr Milne, I just want to clarify some points with you. You say you do not know the process that Mr Milne follows for selection, is that correct?---That is correct.

**** JOHN KINT XXN MR BORENSTEIN

PN1624

And you do not know his criteria?---That is correct.

PN1625

Do you know if Mr Milne is given guidelines in any way for the purposes of selection?---The guidelines, your Honour, are broad. We have got a project that needs to be successfully completed.

PN1626

And would capacity to perform the work be a factor that the company would require Mr Milne to take into account?---Sorry?

PN1627

Well, if I am a contractor providing electrical engineering services. I come to you and I offer myself for the job, I have qualifications but I don't have any qualifications in electrical engineering. Is, for example, the requirement to perform the job of electrical tradesman a requirement that is specified in those guidelines given to Mr Milne?---We, as a company, select the contractor.

PN1628

Yes?---And for his ability to perform safely, for his ability to perform the services required, and with sufficient backing of an organisation. So we carry out those checks.

PN1629

So you expect that they will nominate persons who are qualified to do the job?---That is correct, yes.

PN1630

You don't - there is no requirement of Mr Milne to check that out?---The selection process goes through that process.

PN1631

And how is Mr Milne informed of that information? He gets a list - he gets a list, for example, from Corke. And for example it has my name on it and it says that I am a class A electrician. Now, is that just accepted or is someone checking it?---There would be some further checks carried out on that assumption.

**** JOHN KINT XXN MR BORENSTEIN

PN1632

You say you don't know the process that he follows?---I understand your questioning, but there are some basic assumptions that I have to make.

PN1633

That would be an expectation of Mr Milne, that you would expect Mr Milne to do something about that?---That is correct.

PN1634

Earlier this morning in relation to the process when you were asked to describe it, you said the contractor submits a lists of people, the pool is scrutinised by Mr Milne; I think you used the word "we" but you may not - you may have used that in the sense of the company, rather than you; "And we sit down with a contractor and select from that list the preferred people"?---"We" is a term as Mr Milne. He sits down with the contractor's representative.

PN1635

Now, do you know that that happens?---I do know that that happens.

PN1636

And you say, from your personal knowledge, that that happens?---Yes, I do.

PN1637

Have you been present when that has happened?---No, I have not.

PN1638

So, what is your personal knowledge of?---The lists that are sent to site are addressed to me for the personnel who are completing the induction.

PN1639

Well, take for example, if I take you back to - take for example a list that appears at K10?---K10.

PN1640

At K10?---Yes.

PN1641

Now, as I reprehend the evidence that is so far before me is a list that is sent to you, I think the previous document has a fax cover sheet?---Correct.

**** JOHN KINT XXN MR BORENSTEIN

PN1642

And it is sent to you, and it is sent for approval?---Correct.

PN1643

Now, that arrives on your desk, what happens to it?---It is immediately forwarded to Mr Milne.

PN1644

Yes. And do you say then, Mr Milne, apart from other things, sits down with someone from Corke and selects people from that list?---That is correct.

PN1645

How do you know that he does that? That is what I am trying to find out. Because you have said you have never been present, or you weren't present?---People keep coming to site, your Honour.

PN1646

Sorry?---People continue to come to site, and work continues to get done, so I can only assume - - -

PN1647

So it is an assumption, is it, on your part, that he sits down with the contractor?---That is correct.

PN1648

Yes. Now you have been in Court for the hearing most of yesterday, I think you may have left the Court room briefly, but you heard the evidence of Mr Dodgshun and Mr Johnson, didn't you?---I did.

PN1649

And neither of them, as I understood their evidence, say that they sat down with Mr Milne and selected names?---I think you will find that neither of those two gentleman spend a great deal of time at site and that they are not the site representatives.

PN1650

Well, who do you say sat down with Mr Milne?---In the first instance it would be - - -

**** JOHN KINT XXN MR BORENSTEIN

PN1651

Well, do you know?---Terry - - -

PN1652

No, do you know, or are you just saying it would be something that you think would have happened, you believe would have happened?---I believe it was Terry the Corke representative for site, and a gentleman by the name of Chris from Positron.

PN1653

The kick off meeting, the notes that are in the documents about that indicate that you were present at the kick off meeting?---For Corke?

PN1654

Yes?---Yes.

PN1655

But Mr Milne was not present?---That is correct. I believe, that is correct.

PN1656

Okay. Yes, thank you, is there anything arising out of that?

PN1657

MR BORENSTEIN: No, your Honour.

PN1658

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Milne, any re-examination?

PN1659

MR MILNE: No, I don't have any further with this witness, your Honour.

PN1660

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Kint for your assistance. You are excused from further attendance.

<THE WITNESS WITHDREW [11.42am]

PN1661

MR MILNE: Your Honour, as I indicated to you yesterday, the unusual part of this process now commences and I wish to take the stand myself and give evidence in accordance with my affidavit that has been prepared.

PN1662

THE SENIOR DEPUTY PRESIDENT: Go ahead.

PN1663

MR MILNE: Thank you.

<MR COLIN RAYMOND MILNE, SWORN [11.43am]

<EXAMINATION

PN1664

THE SENIOR DEPUTY PRESIDENT: Mr Milne, there are some formalities that we need to attend to. Can you, for the record, state your full name?---Yes, your Honour, my full name is Colin Raymond Milne, my address is [address supplied], my occupation is Industrial Relations Consultant currently contracted to KBR. I have made an affidavit in this matter; that affidavit is the one that was filed in accordance with the Commission's directions, and that affidavit is true and correct to the best of my knowledge and I would request that the Commission take that on board as an exhibit, your Honour.

PN1665

And just so that we have got it complete; there are no changes you wish to make to that?---No, there are not, your Honour.

PN1666

Thank you.

EXHIBIT #KBR2 AFFIDAVIT OF COLIN RAYMOND MILNE

PN1667

THE SENIOR DEPUTY PRESIDENT: Is there anything further you wish to add bearing in mind that you are giving evidence at this point in time, not making your submissions?---Submissions, no, your Honour. I just simply wanted to go through the affidavit if I could, and make some - expand on that affidavit slightly in some areas.

PN1668

Yes?---That affidavit revolves around my contract, if I can use that term, at the Minerva gas plant, your Honour, and that is self evident from it. A number of the issues have already been canvassed about the employment terms and conditions at Minerva in that they are determined by an unregistered site agreement. I am contracted to KBR, the project manager of the job, and they oversee the contractual arrangements with the contractors engaged on the site. In my capacity as the Industrial Relations Consultant there I am well aware of KBR's role between itself and its contractors, and as I have indicated in paragraph 5 of my affidavit, KBR does not currently employ any person engaged directly under the terms and conditions of the unregistered site

**** MR COLIN RAYMOND MILNE

agreement, or any construction award, nor does it intend to. Your Honour, I think that was conceded by Mr Gray yesterday. Your Honour, we are aware that during the conduct of the construction project over the period that KBR has been involved, there are a number of applications made to KBR either directly or through its contractor for employment, and in most cases those persons aren't successful. To my direct knowledge, KBR has a filing cabinet full of applications that have been lodged for employment on the site and most, if not all, have been unsuccessful given that KBR is not a direct employer of labour. As a consequence of that, your Honour, of KBR not being a direct employer of labour, all employee carrying out construction works on site are employees of various subcontractors engaged on that site. In most cases, and I say in most cases, your Honour, and I think it is in, probably 99 per cent of the cases except where a contractor may come on to the site to do a day's work installing a door for example, he doesn't have contract; he may have an order, but in the normal course of events, each subcontractor, or each contractor, and I am sorry, your Honour, I think I have written in my affidavit it is subcontractor, but it is in fact contractor or subcontractor, has a contractual relationship with KBR. And for the purposes of this hearing, both electrical contractors that being Corke Instrument Engineering Australia Pty Ltd and Positron Power Pty Ltd, have those contractual relations with KBR. Those contractual relations insofar as they relate to the labour relations, are contained in clause 29 of the standard contract, and I think your Honour has been through that already in these proceedings so I don't particularly intend to address all of those issues or all of those subclauses contained therein. But that, in general terms, requires a contractor to accept all industrial relations risks and deal with their employees themselves. KBR does not, to my direct knowledge, and in fact I have refused to be involved in issues that relate to contractors on site, because they are domestic issues to those contractors, and are not our responsibility. Nor do we seek to make them our responsibility. We do not deal with the day to day methods of operations at all, nor do we involve ourselves in the methods of employment or recruitment that those contractor carry out, nor do we involve ourselves in manning levels, nor do we involve ourselves in disciplinary procedures or any other matters relating to the relationship between the contractor and its employee. Your Honour, we do have a communications process that is conducted between the contractors and KBR, and yes, for things like working over-time, we do obviously have responsibilities of ensuring the site is safe, the relevant people are there such as first aiders, we are the contractor and the occupier of the premises; we do have a responsibility to ensure under the Occupational Health And Safety Act, for example, that we have the appropriate level of first aid and emergency services

**** MR COLIN RAYMOND MILNE

if I could call that, as we do have the responsibility to ensure that the facilities are maintained in a reasonable and hygienic condition. We do obviously have that communication from the contractors who advise us when they are working overtime, for example, we do not dictate to the contractor when they can work over-time; we would, in the case of the electrical contractors, we would particularly like them to work more over-time, but in fact Mr Gray has instructed them they are not to work that over-time through the - as we are advised, until such time as Mr Dunsmuir is put on the site. And then he would look favourably on some extension to the hours that are contained within the certified agreement. The method of working over-time, for example, is a specific responsibility of the contractor with its direct employees. On some occasions contractors choose to work on their RDO, for example, and transfer that day because they are from out of town and they would prefer to bank their RDOs for example. We are advised of that, but we do not specify, request, or make any other determination as to how they should work the over-time. That is entirely between themselves and their employees, a is disciplinary matters, and as is manning levels. Whilst we look at the manning levels on site, and I am conscious in my role of that, in that we have a certain amount of facilities on site, we are required for example to have sufficient numbers of toilets and sufficient number - and metreage of latrines, for example, or urinals. The purpose of - any overseeing of numbers on site, and I draw the distinction between numbers on site and manning levels; we do not dictate to an employer, that being a contractor, how many people they should have on their job; that is entirely up to them, and as Mr Kint I think has said, that is entirely a matter for them. The process of keeping an eye on numbers is simply to make sure that we comply with the legislation as is required for us to provide those facilities to the employees.

PN1669

Are you really saying there, Mr Milne, that if Mr Corke turned up tomorrow with 40 employees, KBR doesn't have the capacity to say, "No, you cannot bring 40 employees on the site?"?---Yes, we have that capacity to say "no" because there would not be sufficient facilities to have them there, and we would not allow people to be on site in numbers.

PN1670

There may be reasons, and good reasons, but are you saying that you cannot tell Mr Corke that he cannot bring 40 employees on site?---We can tell Mr Corke that the facilities that are available don't allow him to bring 40 people on site.

**** MR COLIN RAYMOND MILNE

PN1671

Right, having told him that?---Yes.

PN1672

And he says, "So what?" and starts to move through the gate, does KBR have the capacity to say, "No, you shall not bring them on site"?---Yes, we do, your Honour.

PN1673

And if Mr Corke was of the view that he needed 40 persons on site to do the work required, isn't that his determination of what he believes to be the appropriate manning level?---Yes, it is, your Honour.

PN1674

And is KBR's refusal not the exercise of a right to tell Mr Corke that he will not have a manning level on that day, of 40 people?---We would be in a position to tell Mr Corke that he would not have a manning level on our site on that day for certain reasons that he could not have that manning level on that day.

PN1675

I am not saying the reasons?---Yes, your Honour.

PN1676

Or a matter of reasons. You see, your statement is that you do not have the ability to dictate or to influence. Now, putting aside "dictate" for the moment, isn't it the mere capacity to be able to say "no", a capacity to influence, for whatever reason. I am not querying your reasons, I just want to understand what you are saying. You are saying that KBR doesn't have the ability to influence?---Again - - -

PN1677

For - - -?---Yes, sorry, your Honour. The context that that statement is made in is - that context that applies to what manning levels Mr Corke, in this instance, in your example, you require to complete his contractual obligations. Those are - those levels are fairly well set or accepted levels and in your example, if he came in and said he wanted 40 more people on the site, we would have to question why he would want that, but we do not say to Mr Corke, or any other contractor, that you have this scope of work to do, and you must have 15 people to do it, or 20 people.

**** MR COLIN RAYMOND MILNE

PN1678

You see, I think the evidence of Mr Kint though was that manning levels were entirely up to the contractor?---Yes, they are. The manning - - -

PN1679

But it is not really the case, is it, because the contractor in the example I have given you, whether rightly or wrongly, for good, bad, or indifferent reasons determines the manning level which would then bring to excess the total number of persons that KBR says it can accommodate on site. KBR then say, "No, you cannot on that day have that manning level. You cannot bring them onto site". Now, that is an influence, isn't it?---It would be, yes, your Honour, I would concede that it is an influence in a specific circumstance.

PN1680

Yes?---But in the context that the statement, my affidavit, is made, it is not particularly, and nor is it likely to happen, what we would - in those circumstances the manning - the only determination we make on manning levels would be to ensure that we complied with relevant state legislation. Now, if Mr Corke, for example, in this circumstance wanted to bring 40 extra people on site we would be certainly able to say to him, "No, we do not have the facilities, we will not breach our requirements under the OH and S Act, and if you need that we will allow you to have that when we have sufficient facilities on site to cater for that". Now, your Honour, that does happen and as - I think some evidence was given in the last couple of days about - - -

PN1681

Would the opposite happen? For example if Corke turned up with three employees when KBR deemed that it was - it would be contrary to Occupation Health and Safety legislation of principles to perform the work required on that day with only three employers?---I don't understand what you mean by that, your Honour.

[11.58am]

**** MR COLIN RAYMOND MILNE

PN1682

Is there any - for example, would there be a situation where the work required to be performed on a particular day might require a minimum number of employees, otherwise it would be in breach of occupational health and safety principles?---Well, that is possible. I am assuming you are talking about something like work in a confined space or something, where there would be required to be people outside. In that circumstances, that is the day to day operations of the organisation that conducts those things and that would be their responsibility to determine that.

PN1683

Well, having determined wrongly, Mr Corke having determined wrongly that the work can be done with three people and KBR being of the view that it must be performed with five, what is KBRs responsibility?---Well, I don't know - well, certainly if it was - and the only circumstance that I can see that occurring, your Honour, would be in a situation where it was an OH and S matter and whereby the primary responsibility was on KBR by the state - imposed on it by the state legislation as being the occupier. Ultimately, we would be held accountable for - if something occurred or, indeed, if there were unsafe acts going on, because we are the occupier of that site.

PN1684

And would you expect KBR in those circumstances to say to Corke: you shall not perform the work with three people; you shall get another two people before you perform the work?---We would certainly do that in the circumstances of where we were liable for an OH and S issue, your Honour, but that would be the only time that we would do that and the only reason that we would do that was because we would be held accountable by law.

PN1685

Now, move to just another issue before we go on?---Yes, your Honour.

PN1686

And I won't take it any further on that point but just on the question of overtime, work on the site, that is not done on a 24-hour basis, is it?---No, it is not, your Honour.

PN1687

So what, overtime would either be worked on days on which the worker would not normally work or outside at some spread of hours?---Yes, that is correct, your Honour.

**** MR COLIN RAYMOND MILNE

PN1688

And access to the site to perform that work is effectively determined by KBR?---No, it is not, your Honour. No, it is not.

PN1689

What, KBR can't refuse access to the site for the purposes of work? Is work done seven days a week on the job?---No, it is not.

PN1690

Well, if a contractor said we want to work on Sunday, assuming Sunday was not a normal work day, can KBR say no, you won't?---No, we don't say that.

PN1691

No, can you?---I suppose we could but the intention to work overtime on the Saturday or the Sunday or, indeed, after the normal spread of hours is entirely up to the contractor and its employees. If they choose to work on a - - -

PN1692

I appreciate that. I appreciate that and I understand the way you are putting that but if the contractor and its employees want to work on a Saturday or Sunday, they can only do so if they are given access to the site?---That is correct.

PN1693

They can't demand access. They can't march through the gate without permission. That is what I am getting at?---We have - persons who are inducted have gate passes, your Honour, and they are - the site is open for those people to work as many hours as they wish at their discretion. That is entirely up to them.

PN1694

So what you are saying is that you don't prevent them from doing it?---We do not.

PN1695

But you agree that you could; is that what you are saying?---Well - - -

**** MR COLIN RAYMOND MILNE

PN1696

If KBR decided to do next Sunday as being Foundation Day of KBR and no one was to work, something like that, they have the capacity to say to a contractor: no, you won't come in on Sunday?---Well, I suppose we do and I suppose - to take that to the logical extension, your Honour, I suppose BHP do too. They own the premises. They could instruct us contractually to do it.

PN1697

Thank you. I think you are either finishing paragraph 10 or moving on to 11?---Yes, I was, your Honour. Just to finish up on that, your Honour, in my role as the IR consultant, I am responsible for dealing with the contractors on their - overseeing their industrial relations issues but in that sense we do not involve ourselves in their day to day issues, if I can use the generic term there, and I would be well aware if KBR was involving itself in that. In fact, it would come through me. We do not do it. In fact, as I have indicated, your Honour, on several occasions with contractors we have said no, that is not a problem that KBR wishes to involve itself in, nor is it our responsibility and we will not do it.

PN1698

MR BORENSTEIN: Well, your Honour, I object to that evidence. That was never put to the employees - sorry, the witnesses of Corke or Positron. He said that on a number of occasions they were requested. No evidence has been brought as to that and it hasn't been put to the contractors, so - - - ?---Well, your Honour - - -

PN1699

THE SENIOR DEPUTY PRESIDENT: Just a moment. What I propose to do is let Mr Milne give that evidence. You can make an appropriate comment as you see fit - - -

PN1700

MR BORENSTEIN: Thanks, your Honour.

**** MR COLIN RAYMOND MILNE

PN1701

THE SENIOR DEPUTY PRESIDENT: - - - in any submission you make?---Yes, your Honour. Thank you very much. Your Honour, there are a number of contractors on the site, not just Positron and Corke. They relate to a whole range of earthmoving contractors; they relate to a whole - some, you know, plumbers, other electricians, concreters, that sort of instance. In either case, being Positron or Corke, I have not been requested by them to involve myself in their IR issues. Now, your Honour, KBR provides a site induction process. That site induction process is not conducted by myself; it is conducted by the safety officer and we approve persons who are entitled or eligible to undergo that process. Now, that is all KBR does. We approve people to go through the induction process. I have indicated to you earlier, your Honour, that people do get access to site once they have been inducted. It is freely available to them and so we are extremely careful in how we induct people onto the site. The process, which much has been said about during these proceedings, is a simple process. It commences with the larger contractors being required to give a list of proposed persons on site in each and every case and, particularly with Corke and Positron, that list of proposed employees is numerically far greater than what either of those contractors have indicated to us that they require to complete their works. The manning levels are determined by the contractors. Now, that process is a two-stage process. That list comes to me via various means, whether it be directly through Mr Kint or whether it is by fax and I get it or whatever. It is my responsibility and I deal with it. The initial process that I go through is to look at that list of persons and see if there are any glaring anomalies or, indeed, whether I know any persons or have worked with them in the past or not. That is as far as it goes in that sense. It is there. That process is - the pool is there and it is requested so that if and when I have time to do any further investigation or checking or reference checking, whatever may be required - and your Honour, I am not there full-time - it is there to enable me to do that at my discretion. The actual approval process is triggered when a representative of the company concerned says okay, you have a list of people, we want these people - and they nominate the people they want - these people approved for site. We then go through a more extensive process to look at those people and then they are approved - or those persons that are approved are advised to the company. That is the process, your Honour. It is a fairly simple one and much to-do has been made about it being complicated or whatever, but that is how it is conducted by me and I am the only person responsible for doing that and I am the only person that can speak with any authority on how it is conducted. In the case of Corke

**** MR COLIN RAYMOND MILNE

and Positron the requests from the persons - the request for persons to be approved have come through the site management, Mr Terry Caffery from Corke and Mr Chris Statton from Positron. They have nominated to me the persons off that list that they require to be inducted.

PN1702

That is done verbally or in writing?---Well, it is done in either way, your Honour.

PN1703

Well, has it ever been done in writing?---Yes, it has.

PN1704

Are there copies of that in the documents?---There is at least one copy in that document that I know and it is the Corke document where they have requested - perhaps if I can just have a moment, your Honour, and I will be able to tell you what its reference number is - where they have certainly requested in writing approval for - I think it stands out because it is the cable puller that was contracted to do that work, and they formally requested us to - in writing, to provide approval for him to come on site. Now, I am sorry, your Honour, I just - - -

PN1705

Is that K1?---K1, is it?

PN1706

Is that Mr Gilligan?---That is the one, your Honour. And that process - yes, that is it. Your Honour, that process is done in some cases in writing. In other cases, it is done by - I have received handwritten notes; I have received all sorts of things - and verbal requests from people to approve them off their original lists.

PN1707

Have you kept the handwritten notes?---Your Honour, no, I don't. I do the approval process, not anticipating being in this court, but that is - - -

**** MR COLIN RAYMOND MILNE

PN1708

Well, it means that K1 is the only document that you are aware of in that bundle of documents which is a written - which we have as an example of a written request?---Yes, it is, your Honour. That is, however, precisely why we respond to the contractor in a formal sense, albeit in the pro forma handwritten by me. That is how the approval process is granted. We do not approve people unless there is a request in one way, shape or form to approve that particular person. I don't, your Honour, go through the process of spending my time ad nauseam checking people who may never come on the site. That is why there is a two-step process. It is a preliminary check and then when the preferred persons are nominated, then I go through that process. I am not - part of my duties are to do that, your Honour, but I don't spend three days a week on the telephone to previous employers.

PN1709

How are you aware of previous employers?---In a lot of cases, your Honour, we are not. And I was going to address the process and the criteria I go through. For example - - -

PN1710

Well, can I just ask you this. In putting up the list, at the time of putting up the original list for what you say is the pool - - -?---Yes.

PN1711

- - - and at the time verbal or written requests are made for specific persons to come onto the site, are you supplied at any time then with resumes?---Some contractors do, some don't.

PN1712

Well, does Corke provide you with them?---We have not got any from Corke.

PN1713

Did Positron?---No, we have not - not to my knowledge, your Honour. I would have to actually check that but I don't think they actually gave - - -

**** MR COLIN RAYMOND MILNE

PN1714

That is all right. We can move on?---Your Honour, in some instances, and if I can use the example of on site when we go through the process, the process is not a strict regime of checking. It is there wherein it is flexible in - dependent on the circumstances, and the example I will use there, your Honour, is we have got people like Keppel Prince, who supply mobile cranes to us on site. Some of those people that are working - and I get from Keppel Prince a range of resumes and background. Some of those people have been working for Keppel Prince for 18 years, I think one guy up to 23 years. Now, your Honour, it would be impossible for me to do anything other, in those circumstances, than check with its current employer and one would say that that would be a waste of time. So there are various levels of checking depending on the circumstances. In the instance of a person who is coming on the site for one day, as I indicated earlier, your Honour, to put a door on one of the buildings and he is never coming back again, well, one wouldn't go through a process of complete resume checking for that circumstance. The level of checking is determined by the circumstances for the particular individual and/or the contractor. Your Honour, in most cases those lists that are provided to us are made up of prospective - sorry. In most cases they are made up of, generally speaking, current employees of the contractor and in some cases prospective employees of the contractor. We rely fairly heavily on the contractors to provide us with appropriate labour, certainly in their qualifications and their experiences. In a lot of instances when people attend for their induction, they do provide to us, unsolicited, copies of their - and certainly the numbers of their - in the case of an electrician, their licence numbers or whatever it may be, their red card numbers, in some cases, although we don't require it, their union membership numbers, CBUS, all of those sorts of things are sometimes proffered forward by the persons at that time of receiving their induction. But we do rely heavily on the employees - the employer, that being the contractor, providing us with appropriately qualified persons. It is also our view that the contractor should, obviously, provide ongoing employment for its longer term employees than to simply make people redundant and then employ other persons. I think I have already said, your Honour that both Positron and Corke have provided us with a list of names far in excess of those required. Not all persons from that list, obviously, as a consequence have been employed on the site, nor have they been - had induction approvals sought nor given. We do not, to the best of my knowledge, myself - well, I do not and, to the best of my knowledge, no one else at KBR instructs any employer who or who they can't employ. Now, in the case of Mr Dunsmuir, given that it is my responsibility

**** MR COLIN RAYMOND MILNE

and I do see each and every person who is coming onto site in that respect - well, I hope to see each and every person coming on site, including engineering staff, to the best of my knowledge, and I think that I would be able to say 100 per cent certain that no formal request has been made from Corke or from Positron to formally induct Mr Dunsmuir onto the site. Your Honour, should that occur, we would have some difficulty approving Mr Dunsmuir simply because of Mr Dunsmuir's statements made to Mr Rod Hayes and Mr[sic] Tania Dean, whom I have personally checked with and am satisfied that the comments were made. My satisfaction comes from the fact that they would certainly have no reason at all to concoct any such alleged statements being made. I became aware of those statements via another staff member on site and I went to the trouble of checking with both of those individuals that it was actually said, or words to that effect were said. Your Honour, Mr Kint has given evidence that he did not ask them to attend at this tribunal but I am in a position to say to your Honour that I did ask them and they were reluctant to do so, and that reluctance is understandable given that they run a business in Port Campbell and, in fact, they are the operator of the business and, in fact, it is his junior partner of the business - is Ms Dean, not his personal assistant, as I think it was referred to earlier. They were reluctant to get involved in any proceedings and I think perhaps one could understand their reluctance, given that it would be three days - as it turns out now, it could have been up to three days away from their business. It is a motel and it requires them to be at all times. Now, I did request that and I also requested that they provide an affidavit. They were reluctant to do so, your Honour. But I was satisfied that the comments had been made and that they were sufficiently concerned that those comments were genuine to bring it to our attention. Now, I am - - -

PN1715

Did you at any stage ask Mr Dunsmuir whether he had made the statement?---No, I didn't, your Honour. Mr Dunsmuir at that stage was not an employee of anyone, nor is Mr Dunsmuir an employee at the current time. Mr Dunsmuir - - -

PN1716

The extent of your checking then was to ask these two persons whether the statements had been made?---Yes, it was, your Honour.

PN1717

And you did that by phone - - -?---No.

**** MR COLIN RAYMOND MILNE

PN1718

- - - or face to face?---Your Honour, I did it face to face.

PN1719

So you took the trouble to do that- - -?---Yes, I did.

PN1720

- - - and you didn't take the trouble to check with Mr Dunsmuir to get his side of the story. You formed a view about the veracity of those statements being made without seeking to or, in fact, speaking to Mr Dunsmuir; is that right?---Yes, I did, your Honour, but I don't believe it was my responsibility to seek Mr Dunsmuir out in any way, shape or form.

PN1721

You were checking him out, weren't you?---No, I wasn't, your Honour. I was simply - at that stage there was no - we were unaware of any attempt by Mr Dunsmuir to be put back on the site. These were comments that were made.

PN1722

When did you speak to these two people?---I am not quite sure, your Honour, but the - - -

PN1723

Well, this year?---Yes, your Honour, this year.

PN1724

Last month?---No, no, no. It was - - -

PN1725

The month before? When?---It was early this year and it was very shortly thereafter - and I do recall - I can't give you the exact date but I do recall the circumstances. Now, I became aware Mr Dunsmuir had been terminated by Main Roads, as had a number of other people. We were advised of that by Main Roads. I was then subsequently advised a few days later or perhaps a week later or so that comments had been made around the town that because Mr Dunsmuir was renting a house that was being managed by, if I can use that term, the motel owner on behalf of one of his friends, as I subsequently found out when I questioned the motel owner, that was within a relatively short period after Mr Dunsmuir left. At the stage that Mr Dunsmuir left we had not formed any opinion - I had not known Mr Dunsmuir. I have not worked with him before and I had not been required to do an approval. Mr Dunsmuir was there prior to my commencement on the site.

**** MR COLIN RAYMOND MILNE

PN1726

What was the purpose of checking out - sorry, can I ask you this first. How did you become aware that Mr Dunsmuir was alleged to have been making these statements?---The people who were in the motel were so - were sufficiently concerned about that to raise it with Mr Terry Shipley, who - - -

PN1727

How did you become aware?---Mr Shipley referred that to me.

PN1728

Yes. And why did you then check it out? Mr Dunsmuir was no longer employed on the job. Why did you check it out?---Well, your Honour, when there is a statement made publicly in a small town like Port Campbell, and I think there is 800 people live there or something of that ilk, and there was a potential for Mr Dunsmuir to come back on the site - there was a potential with any of the electrical contractors, we felt it was our - in fact, I believe it was my responsibility to find that out. I would have been derelict in my duties to KBR had I not bothered to follow up on something as significant as that. The statements were simply - were not insignificant statements, your Honour. They were that he intended to get back onto the site or words to that effect.

PN1729

Yes, you have set them out in your affidavit?---Yes.

PN1730

But the purpose of doing this, was it, was to prepare yourself in the event that Mr Dunsmuir sought to come back on the job?---My purpose in doing it, your Honour, was to confirm in my mind the veracity of the comments that had - of what had been put to me.

PN1731

I understand that, but why did you need to do that - was it just because you had an interest in confirming the veracity - why did you have to do that?---Well, because it was a statement made, that referred to the project that I believe I have the responsibility for - to look after, in that sense.

PN1732

But it still doesn't really explain why you needed to do it. You wanted to ascertain whether or not these statements had been made. I apprehend that - why?---So I was familiar and so that I would be - and there is an, I was going to say an old army saying - but, prior planning prevents so and so - poor performance but - - -

**** MR COLIN RAYMOND MILNE

PN1733

Well, that is what I put to you and you denied that?---No - - -

PN1734

I said to you that you did this, did you, with a purpose - if not the purpose - a purpose being to prepare yourself in the event that Mr Dunsmuir sought to come back on the job?---No. That was not my purpose, your Honour. My purpose was to ensure that I understood what had been said, had in fact occurred.

PN1735

Why?---Because I may have been, at some later stage, asked to do something but that is a hypothetical. At the time I wanted to be assured of what was said, was correct. That was my reason for checking it.

PN1736

And absolutely no other reason?---None whatsoever, your Honour. None whatsoever. There had not been - Mr Dunsmuir had not been put forward. Mr Dunsmuir, by either Corke or Positron, nor were we expecting im to. But, Mr Dunsmuir had been on the site. Mr Dunsmuir's time on site gave us no concern. In fact we thought Mr Dunsmuir, up until he made those comments, had been a reasonably good employee as a labourer and that's the only experience I have on him.

PN1737

For what purpose was that information useful to you - what use could you have made of it?---Probably nothing at the time, your Honour.

PN1738

Well, why bother?---Well, because it's a statement that was made fairly publicly and it was a statement that someone intended to do some damage to the project.

PN1739

Yes?---Now, whether that was true or not that's precisely what was said. I think it is my responsibility to actually determine what I had heard from Mr Shipley was in fact what had been said and what they believed was the true statements made by Mr Dunsmuir.

**** MR COLIN RAYMOND MILNE

PN1740

All right. Go on?---As I have said, your Honour, Mr Dunsmuir's employment did commence on the site prior to my engagement and I had formed no opinion of Mr Dunsmuir at all whilst he was on the site nor have I done anything other than form that opinion. In fact it's probably not even an opinion, your Honour, it is a concern and that concern with M Dunsmuir purely and simply relates to those comments that I am satisfied that he made, and the intention of those comments. The - to the best of my knowledge, Mr Dunsmuir was not selected for redundancy from Main Roads for any other reason than the day work that he was engaged on was not being - was reducing and the works that were currently being done under that day work were now being subject of contracts and were being let to special - specific contractors who do that work as their main function, that being concreters for example. Main Roads is a primarily by the - as you would gather from their name, they are a road-making company and do earthworks. They operate substantial amounts of earth moving equipment but they are not concrete contractors. Now, your Honour, those works wound down and the day works that were given to Main Roads were not the substantial part of their contract or not even in fact their contract in such a sense - they were - Main Roads have a scope of works which they are still required to carry out. At no stage did KBR, to the best of my knowledge, require Main Roads to do anything related to Mr Dunsmuir, nor did it specifically wind down its works to get rid of Mr Dunsmuir. There was no reason to get rid of Mr Dunsmuir. I have already given evidence, your Honour, that we had formed no opinion of Mr Dunsmuir and Mr Dunsmuir worked - we had no concern with his performance of work, whilst he was working there as a labourer. Our concerns only surfaced after the comments were made. There would be no reason for us, at all, to require Mr Dunsmuir to be removed from the site. Your Honour, as far as the number of employees on site I have personally contacted over the last few weeks both the Site Management of Corke - Mr Caffery, and the Site Management of Positron - Mr Statton, and enquired of them whether their numbers needed to be altered or that in fact did they have sufficient numbers to complete their works. On both occasions they said, "Yes, they do", and they did not require any further employment - persons for any other employment. Now, in regards to - to, if I can move on from paragraph 34 of my affidavit, your Honour, it relates to the matters that occurred, and discussions between myself and Mr Corke. I returned a telephone call that I had received from Terry Caffery who, at that stage, was in - on that day, was in the Melbourne Office of Corke Instruments. When I returned the call to Mr Caffery he referred me to Reg Corke, being the

**** MR COLIN RAYMOND MILNE

Principal of that Company. Mr Corke advised me that he had been having conversations with Mr Gray of the ETU about the employment of Mr Dunsmuir on the Minerva project. Mr Corke also advised me that - Mr Gray - that they had notified a disputes board convened under the disputes settling procedure of Corke's certified agreement. Mr Corke asked me what our position was on that and I advised Mr Corke that who he employed and used was - elsewhere, was entirely up to him. On the Minerva site, should he put forward Mr Dunsmuir we would have some concerns and I specifically mentioned those concerns about the comments allegedly made by Mr Dunsmuir to Mr Corke and Mr Corke responded to me by saying, "Well", - or words to this effect, "That puts an entirely different complexion on it", and if persons were making those comments then he would not employ them either and neither should we. Now, Mr Corke was made well aware of that by me and it was specifically explained to him that he can put Mr Corke - Mr Dunsmuir forward, and he may have indeed been done so at that stage on his list, I am not quite sure, but the process would be that he could go through the approval process and we would some difficulty with approving Mr Dunsmuir, given that he had state - his stated intention of causing problems on the site. It was also my understanding - sorry, since that day Corke nor Positron, as I have said before, have not formally requested approval of Mr Dunsmuir.

PN1741

Have they informally requested it?---No. No, your Honour.

PN1742

Why do you chose to say, "formally"?---Because of the second step in the process where they need to come to me and say, "We want this person inducted".

PN1743

What is formal about that - - - ?---Well - - -

PN1744

You said people hand you bits of paper and come and talk to you - I mean, there is nothing formal about that?---Well, well, they may get - - -

PN1745

Why do you say, "formally"?---Well, then perhaps if I chose a different word, your Honour.

**** MR COLIN RAYMOND MILNE

PN1746

Well, that's the word you have used, so I want to know what you mean by it?---What I meant by that - - -

PN1747

Is there a possibility that someone can informally request?---No. That would be, in my words, a formal approach from the company to approve - to trigger the second stage.

PN1748

So, is your evidence that no-one has made a request?---No-one has made a request for approval of Mr Dunsmuir.

PN1749

Thank you?---Your Honour, the - the industrial relations management on the site KBR manages the industrial relations strictly in accordance with its requirements, both what it sees as the requirements under the occupational - sorry, the Workplace Relations Act; its obligations under, albeit it an unregistered agreement - an agreement nevertheless; and the awards that apply. And things such as right of access are dealt with in that those manners. Now, the issue of the - it's been raised and I give evidence to that fact that the - that KBR did not move the delegate shed on site. The delegate shed on site was in fact the First Aid office; had been since day one. The CFMEU delegate at that stage was also the - a First Aider, and had used the office as the First Aid office but obviously was using it for his union activities as well. That delegate - - -

PN1750

Well, you say, obviously - are you giving that evidence from your personal knowledge?---From my personal - yes.

PN1751

Yes?---That delegate was - and is, currently the peggie on site and, given the location of site itself he is required to leave site of a morning and of around mid-day to order and collect the lunches and the smoko for the guys on site. That is part of his duties. He leaves the site. We made a judgment that we needed to look at the First Aid facilities. The - he was no longer required to work as a First Aider because we have, at any given time, two - as I understand it, more highly qualified First Aiders on site in the security guards; so they are 24 hours a day, 7 days a week. They are - we believed that it was more

**** MR COLIN RAYMOND MILNE

appropriate to have total coverage. Mr Ladlaw, who is the CFMEU delegate, doesn't work the overtime that other people work; chooses not to and in fact doesn't work on some other days and is absent, on union duties, on other days as well. The decision was made that there were more highly qualified people, being the security guards, that the current - the then current location of the facility which was in the centre of all of the accommodation huts was inappropriate because it didn't have vehicular access for ambulance for example should something - heaven forbid - but should something happen. So that hut was moved and placed next to the security guards, being the First Aiders, and there is a specific - the security fencing has a gate put in specifically to allow access for - to the First Aid hut for an ambulance should it happen. So it was not that we were removing a delegate's hut. There never was a delegate's hut. It is a First Aid hut and it now complies, and indeed we were concerned about its cleanliness given that it was being used by people for other purposes. It is now a dedicated and, as it always was, perhaps managed poorly but it has been a dedicated - it is now a dedicated First Aid hut and it is monitored and kept clean and no-one has access to it other than for the purposes that it was designed for. Your Honour, I have nothing further to add other than to say, you know, obviously that there are other aspects in my affidavit that I ask the Commission to take into account.

PN1752

Mr Borenstein, do you expect to be longer than 20 minutes?

PN1753

MR BORENSTEIN: I will try not to be.

PN1754

THE SENIOR DEPUTY PRESIDENT: No, no, I don't wish to hold you up because if you do I want to make some other arrangements so we can continue this tomorrow or Friday.

PN1755

MR BORENSTEIN: Yes. I think it would be useful to, I think for submissions as well.

**** MR COLIN RAYMOND MILNE

PN1756

THE SENIOR DEPUTY PRESIDENT: Yes. We will just go off the record.

OFF THE RECORD

RESUMED [12.40pm]

<CROSS-EXAMINATION BY MR BORENSTEIN

PN1757

MR BORENSTEIN: Okay. Now, Mr Milne, I think you agree with this. At paragraph 3 you say:

PN1758

Employment terms and conditions at Minerva are determined by an unregistered site agreement.

PN1759

?---That is correct.

PN1760

That is a site agreement that KBR holds with the union parties?---KBR doesn't hold a site agreement with them. Actually, in fact the site agreement - there has been a refusal by some unions to sign the site agreement. We are all working to the site agreement.

PN1761

Okay?---But there is a signed memorandum of understanding that the unions agree that they will work to that site agreement as does KBR.

PN1762

Okay?---In fact it was that MOU was signed by BHP and we are contractually bound to abide by that Memorandum of Understanding.

PN1763

And so you require the contractors, as Mr Kint said, to apply that site agreement as well?---As a minimum.

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1764

As minimum, that's right?---Most contractors, to the best of my knowledge, all of the contractors on site have patent agreements which determine their terms and conditions. We set the minimum by the site agreement and some additional, such as site allowances.

PN1765

Yes, there is a site agreement which has probably terms and conditions than the patent agreement in some areas and they apply?---In some areas - yes, but the employees are employed basically under their patent agreement.

PN1766

Yes. They both apply and the patent agreement says that where a site agreement exists that it will apply over and above this, subject to any inconsistency - I think?---The patent agreement says that, did you say?

PN1767

Yes?---I would assume that all of them say that, yes, and the ones that I have audited do say that, yes.

PN1768

And it is not disputed that you have the right to refuse any person on to the site at any time and be able to remove them from the site at any time?---That is correct.

PN1769

Without any reason being provided to the contractor?---Well, I think in your words earlier on, that is correct and I think we would be foolish to permit an axe-murderer, I think you said, on to site.

PN1770

Well, you do think that - not having anything against axe-murderers, but - they might have been rehabilitated - but electrical contractors what - do you believe electrical contractors are able to employ - have the ability to chose and select employees?---We never - have never said to any of the contractors that they cannot employ who they like.

PN1771

And you say that the electrical contractors are given the discretion about the manning levels?---Yes, they are to carry out - - -

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1772

They determine the manning levels?---To carry out their contracts, yes, they are.

PN1773

And you trust them to determine how many people they need to carry out their contract requirements?---Yes, we do.

PN1774

Yes. And I suppose - you say you trust them to deal with the day to day activities of their employees?---Yes, we do.

PN1775

So you obviously hold some trust in that they are a capable organisation?---Yes, we do.

PN1776

Yes. And before awarding them a contract I think you would sort of enquire so as to be satisfied with that?---Yes, we do.

PN1777

And part of the role as an employer is to select the right personnel to perform the work, correct?---As an employer?

PN1778

Yes, as an employer?---Well we are not - KBR is not an employer.

PN1779

No. I am saying that, in determining whether the contractor is a good -- a proper organisation, you said which you believe they are - - - ?---Yes.

PN1780

And whether they are a good employer, you would expect that they would be able to select the right personnel to do the work that they contract for?---Yes, we would expect that they would.

PN1781

Yes. And it is your argument that they hire and fire their own employees; they select - and in doing so they select the employees they think will do the - you trust them to select the employees that will do the best job on the project?---Yes, we do.

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1782

So, can you explain to me why this approval process is required?---Because we look at the approval process on a general term and that general term is to see what is best for our project.

PN1783

No, but this - - - ?---Can I answer?

PN1784

Well, you have answered. You say that you trust these employers to employ the right people for the job and to perform their contracts in accordance with you, to do it correctly - - - ?---Yes.

PN1785

Well, let them do it?---And that's part of it.

PN1786

Well, no. You are saying that you know we trust you on all these things. We don't want to interfere in your manning levels - - - ?---I am sorry, could you be a bit more specific - let them do what?

PN1787

Well, let them employ the people that they want to employ to perform the work on the project?---And which person, who is that?

PN1788

Well, whoever they wish - - - ?---I'm sorry, your Honour, I shouldn't be asking questions.

PN1789

Well, that's correct - you are saying - - - ?---- - - but I can't answer something that's not - - -

PN1790

You are saying that you trust them to employ the right people for the job yet you still require to have this right of veto?---Yes, we do.

PN1791

And why is that?---Because for exactly the same reasons that this is currently before this Commission - there is a person out there who has a stated intention of doing this work over. That's - - -

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1792

Well - - - ?---Well, let me finish. A stated intention of doing the job over that we have confirmed was the case. It is precisely that, that we reserve that right to prevent - to prevent persons come on to that site to do damage to our project.

PN1793

But isn't that the responsibility of the employer, they are - they will be liable for the damage caused to you?---Mr Borenstein, you forget one thing - we don't tell them who to employ or not employ.

PN1794

All right. Look, if you want to take the artificial line, Mr Milne, look you realise that you have an effect on who the employer employs and doesn't employ?---You say it's an artificial line, Mr Borenstein, I don't.

PN1795

Yes, well - - -

PN1796

THE SENIOR DEPUTY PRESIDENT: You answer the questions, Mr Milne. This is the danger in being the advocate and the witness. You are currently a witness and you are asked to answer the question please.

PN1797

MR BORENSTEIN: I will ask the question again, your Honour?---Please do.

PN1798

Why do you have to interfere in who the employer brings on to the project?---Because, in certain circumstances, it is in our interest to do so.

PN1799

But - - - ?---And those circumstances of this current matter wherein a person irrespective of who it is has made - has publicly stated an intention of doing damage to the project, then it is incumbent on us to ensure that that doesn't happen.

PN1800

But, can I - I accept that. Why don't you then just advise the employer, who has won the contract to perform the work, why don't you advise them and say, "Look, we have become aware that this statement has been made about this person that you propose to employ"?---We have made that. That has happened.

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1801

And let the employer determine whether or not they think this person will perform the project work appropriately?---We would not do that because we know - there is circumstances where duress is placed on certain employers to particularly appoint people. We all know that happens.

PN1802

Well, Mr Milne, before you said you trusted the employers to employ the right people for the project?---Yes, we do.

PN1803

THE SENIOR DEPUTY PRESIDENT: Mr Borenstein, you should allow Mr Milne to finish his answers, without interrupting him.

PN1804

MR BORENSTEIN: Sorry, your Honour?---I am finished, your Honour.

PN1805

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN1806

MR BORENSTEIN: Well, you said you trusted the employers to choose their own employees, well, let them choose their own employees - - - ?---Mr Borenstein, I trust my children implicitly, but it still doesn't mean that I don't oversee them.

PN1807

Okay. So you are comparing Corke and Positron to children, are you?---No, I'm not.

PN1808

Well, I thought you just made a comparison then?---No, I didn't make a comparison. I said I trust my children explicitly but I still oversee them.

PN1809

THE SENIOR DEPUTY PRESIDENT: Why did you say that if you weren't making a comparison?---Because it's the principle, your Honour. The principle - - -

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1810

You were making a comparison?---The principle - - -

PN1811

The principle is that you trust your children implicitly but you still oversee them. The same principle applies to contractors. You trust them implicitly but you still oversee them. Isn't that what you are saying?---Well, that's the end effect of it.

PN1812

Yes. Thank you.

PN1813

MR BORENSTEIN: Now, it's right, isn't it that this process is allowed that you can determine who will be or who can be delegate on the site?---No. We can't determine who is a delegate on site.

PN1814

No. You can determine the range of persons who can be delegate on the site?---The delegate on site is nothing to do with us.

PN1815

No. Answer the question. You do - - - ?---The delegate on site - we don't determine who is the delegate. We - - -

PN1816

THE SENIOR DEPUTY PRESIDENT: That wasn't the question you were just asked, Mr Milne?---Yes, and I'm - - -

PN1817

Repeat the question, Mr Borenstein, and could you keep your answers as answers to the questions you are asked?---Yes, your Honour.

PN1818

MR BORENSTEIN: The process you use is done so as able to limit the range of persons who can be delegate on the site?---No. It's not.

[12.51pm]

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1819

Well, do you agree, as Mr Kint said, that you have discussions with the contractors about the delegates on the site?---Yes, we do.

PN1820

And do you agree, as Mr Kint said, that you advised the contractors to have their delegates elected from the employees actually on the site?---No, I don't agree with that. My discussions with the contractors on site, it is usually the other way around, and in both cases of - and talk - my discussions with them, have been that they have raised the issue and said that they will have a delegate on site. I have not directed, nor to my knowledge has anyone directed, either of those companies to do anything with their delegates.

PN1821

Well, Mr Kint would say otherwise?---Well, Mr Kint may have had those discussions and may have that impression but my discussions with the two contractors on site are exactly what I have just put to you.

PN1822

And - so you would say that you never had discussions with them about preferring that the delegates come from the employees on the site and not be nominated from elsewhere, not coming from elsewhere?---I don't know to the extent that I have had that, Mr Borenstein, but what I can say is that we have been quite clinical in our discussions with the two contractors in that it is not our right to determine who is the delegate.

PN1823

No, answer the question, Mr Milne. I am not saying that you say who will be the delegate, I am saying that you say that the delegate should be elected from the employees on the site and shall be an existing employee on the site?---Mr Borenstein, you know, perhaps, better than I do, that I am not in a position to tell people how to elect their representatives.

PN1824

Well - - -?--- I can't do it and I don't do it.

PN1825

Well that is different to what Mr Kint says?---Well, Mr Kint may have a different thing - you are asking me what I have done.

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1826

Yes. And so you say you have never said that you want - that you would seek that the delegate be elected from the site?---No, I haven't.

PN1827

And you say that you have never had communications with the contractors and that you prefer that a nominated person from the union not be brought into - - -?---In response to some people and some comments, we would have said we prefer the people to elect their persons from the current people. There is no doubt about that. Why would - - -

PN1828

Okay, so you - - -?---Why would we not - why would we introduce an additional person to site to be the delegate. I understand in cross-examination yesterday Mr Gray said that Mr Dunsmuir, on two separate occasions, was going to be the delegate. Now, that is a position that the ETU take, it is not a position that I take.

PN1829

Exactly right. And it is true, isn't it, that it was proposed that Mr Dunsmuir be a delegate on that site since Mr Dunsmuir was first employed on that site back in 2003?---I am sorry, I don't know, it has never been proposed to me.

PN1830

You were aware of that, weren't you?---I was aware that some discussions had taken place about Mr Dunsmuir on that basis but very limited and only because I think the CFMEU representative may have mentioned it to me.

PN1831

Yes and was that when you arrived on the site, November/December, around that time?---I can't recall when that was the case.

PN1832

Well, was it around the end of last year?---No, it was probably around the time that Mr Dunsmuir finished up because I do recall having a discussion with Mick Ladlaw about his departure and that was probably, to the best of my recollection, the first that I knew that Mr Dunsmuir had departed the site because Mick Ladlaw asked me why he was the one gone.

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1833

Okay. So, you form the opinion - in your previous evidence you say you form the opinion that Mr Dunsmuir was a good labourer on the site. So you knew he was on the site?---No, I didn't say that, I said we had no problem with his work on site.

PN1834

No, you said, you formed the opinion that he was a good labourer?---No, I think I said that Mr Dunsmuir worked and we had no problem with his work on site when he was working as a labourer.

PN1835

Now, you say - and you said, you formed an opinion that he was a good labourer and that you had no problems with him?---I don't know what you are getting at, Mr Borenstein but - - -

PN1836

Well and also this recollection now that you have had a - you had a discussion with Mr Ladlaw where you were advised that he was going to be a delegate. Now, before when being asked by Senior Deputy President Williams about why you would go and check up what he said, you said, oh, I don't know, I just thought he might be someone who might come back on to the site. Well, now you are saying that you were actually told by Mr Ladlaw that it was intended that he was going to be a shop steward on the site?---Mr Ladlaw - well, Mr Ladlaw is not an ETU representative. There are lots of rumours around the site.

PN1837

You are slowly revealing information which was clearly apparently relevant to the questions of his Honour and now you are revealing it now?---Well, Mr Borenstein - Mr Borenstein, I will answer any question you ask me.

PN1838

Well, the real reason - well, the real reason why Mr Dunsmuir was being kept off the site is that you do not want a union nominated shop steward on the site?---That is not correct. The real reason that Mr Dunsmuir has been kept off the site is twofold, one, that no-one has put him forward to be put on to the site formally - sorry, your Honour, no-one has put forward an approach to us to have him on the site and, secondly, as I have already given evidence, we would have some concerns because of Mr Dunsmuir's stated intentions.

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1839

Mr Milne, how can you say - how can you try and rely on the fact that no-one has put him up for formal induction when you have not approved him pursuant to the list that they have to give prior to it?---No, we don't approve that list. I have given evidence that it is a two stage - - -

PN1840

Are you saying that?--- - - - process.

PN1841

I understand that. Are you saying that an employee can put someone up who hasn't been approved from the first stage?---Yes, I can, I will say that.

PN1842

What is the use of the two stage process when for some people it is one stage?---Because I do - because it saves time and it is administratively easier for me. I thought I have given evidence to that effect.

PN1843

THE SENIOR DEPUTY PRESIDENT: What time does it save?---Sorry, your Honour.

PN1844

Sorry, you haven't give evidence to that effect. What time does it save? You said you don't bother with the first list?---No, I think I said, your Honour, that I do a check to see if there is any glaring anomalies in that list.

PN1845

And that is all the time it would save? You look at the list, bingo, there is a name that stands out or no names that stand out?---And that is precisely what I do, your Honour.

PN1846

And that is the amount of time that would be saved?---In an initial check that may be all it is, it may be. As I said to your Honour, it depends on the circumstances.

PN1847

That took fully 10 seconds?---And in some cases, that is all it does take.

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1848

Thank you.

PN1849

MR BORENSTEIN: So you say that the first step is pretty much automatic - well, it is not automatic, but it is just a blow over of it, and the second stage when they are put forward for induction, that is when you get involved?---I get involved at both stages.

PN1850

Well, you get more - you take more steps to - what do you do at the second stage?---When a contractor - - -

PN1851

What do you do at the second stage?---When a contractor triggers the second stage then we look at who it is and on what circumstances they are asking to bring people in. I am - - -

PN1852

You say, we?---I mean, KBR.

PN1853

Well - - -?---I do, let me rephrase it, I look at it.

PN1854

So you say - well, I think the evidence of Mr Kint was that the second stage is just pure induction. You just go - you nominate and go - induction - and that was the evidence of both Corke and ..... They just turn up, go through the induction and that is it?---That is not correct.

PN1855

So if Corke had - Corke put Mr Dunsmuir on the first list; correct?---Yes.

PN1856

And you gave them a list of names back?---That list of names that went back to Corke was the list of preferred persons nominated by Terry Caffery on site. He put forward those people.

**** MR COLIN RAYMOND MILNE XXN MR BORENSTEIN

PN1857

That is not right. You got a fax from Mr Dodgshun which sets out a list of persons to go on the site?---Stage 1, step 1.

PN1858

Yes, that is right?---Step 2 was when Mr Caffery nominated those people he wanted me to approve.

PN1859

Well, that was not confirmed by the project manager of Corke, Mr Dodgshun?---Mr Dodgshun wasn't there, this is Terry Caffery approached me with those names. The preferred persons off that list to do approval for. All I can do is give you the evidence that I know.

PN1860

Well, you did not put that to Mr Dodgshun of Corke?---Mr Dodgshun wasn't there.

PN1861

Well, you didn't say whether he knew about whether Mr Caffery had the ability to nominate certain employees from the list?---Well, it is not my business to do that.

PN1862

How can you explain Mr Dodgshun's and Mr Johnson's views that they brought forward a list and those people on the list are approved by you abdd they come on for formal induction?---That may be their perception.

PN1863

Just, lastly, before we adjourn, did you at stage 1, when Mr Dunsmuir's name was put forward, approve him?---No, he was not put forward for approval.

PN1864

No, I finish, I think this is an appropriate time.

PN1865

THE SENIOR DEPUTY PRESIDENT: We will adjourn until 11 o'clock tomorrow.

ADJOURNED UNTIL THURSDAY, 5 AUGUST 2004 [1.01pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN KINT, ON FORMER OATH PN1373
CROSS-EXAMINATION BY MR BORENSTEIN PN1373
WITNESS WITHDREW PN1661
MR COLIN RAYMOND MILNE, SWORN PN1664
EXHIBIT #KBR2 AFFIDAVIT OF COLIN RAYMOND MILNE PN1667
CROSS-EXAMINATION BY MR BORENSTEIN PN1757