RE2005/1302, Transcript of Proceedings [2005] AIRCTrans 2031 (28 September 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 12854-1

VICE PRESIDENT ROSS

RE2005/1302

APPLICATION/NOTIFICATION BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-CONSTRUCTION AND GENERAL DIVISION, WA DIVISIONAL BRANCH
s.285A(1) Application for permit to enter premises
(RE2005/1302)

PERTH

9.35AM, FRIDAY, 16 SEPTEMBER 2005

Continued from 15/9/2005

PN743

THE VICE PRESIDENT: Yes?

PN744

MR HOOKER: I understand we're at a point now the applicant is going to cross-examine - - -

PN745

THE VICE PRESIDENT: Mr Ryan, is that right?

PN746

MR HOOKER: Mr Ryan, that's correct.

PN747

THE VICE PRESIDENT: You've also filed a witness statement by Ms Scoble?

PN748

MR HOOKER: Yes.

PN749

THE VICE PRESIDENT: Is there any indication as to whether Ms Scoble will be required for cross-examination?

PN750

MR HOOKER: I deal with it at a stage prior to that, your Honour. We'll have something to say about its appropriateness of going into evidence. I wasn't sure whether my learned friend intended to just tender it holus bolus or use it as a framework for oral evidence or - - -

PN751

THE VICE PRESIDENT: Let's find out. I'm assuming, consistent with the directions, it sets out the evidence-in-chief in toto pf the witness.

PN752

MR HOOKER: That's correct.

PN753

THE VICE PRESIDENT: That answers that question, Mr Hooker.

PN754

MR HOOKER: I do have an objection to it which I can shortly state. I don't know whether your Honour wants to entertain that right now.

PN755

THE VICE PRESIDENT: I think it may be worthwhile doing it. We'll deal with this and then deal with Mr Ryan.

PN756

MR HOOKER: I do object to the tender of the evidence on the basis that it is put on so late in the piece after the hearing had begun. It should, in our submission, have been served on Monday. It's open to infer, in light of the content of the statement that what it reflects is a strategic decision not to call Mr McDonald but get some matters in in effect through the backdoor.

PN757

THE VICE PRESIDENT: That's a matter of weight to the extent that it deals with hearsay. Failure to call Mr McDonald can be a Jones v Dunkel argument you can put so we can deal with those.

PN758

MR HOOKER: Your Honour, I accept with respect that the line between "admissibility" and weight is a fine one, but I do put the objection given the circumstances I've outlined in light of when it has been put on and how it has been put on in the context of these proceedings.

PN759

THE VICE PRESIDENT: In terms of when it's put on, when was it served?

PN760

MR DIXON: Yesterday afternoon. It wasn't served at 4 o'clock in accordance with directions. There was a fax sent - - -

PN761

THE VICE PRESIDENT: Was not served, he said, Mr Hooker, in case you're thinking - it's accepted that it wasn't served at 4 o'clock.

PN762

MR HOOKER: I wasn't rolling my eyes at the 4 o'clock observation, more the implication that 4 o'clock was the yardstick for putting on material evidence.

PN763

THE VICE PRESIDENT: Yes, I see, no worry.

PN764

MR DIXON: It was certainly my understanding from the directions that your Honour gave yesterday that there would be some sort of attempt to put on any - - -

PN765

THE VICE PRESIDENT: Any evidence that dealt with any matters other than the two Leighton witnesses, yes.

PN766

MR DIXON: That's what I was referring to, your Honour.

PN767

THE VICE PRESIDENT: There are two attacks, one is in relation to the admissibility generally, presumably because of the nature of some of the observations that are hearsay, not direct evidence from Mr McDonald, et cetera. I don't know what, if anything, is said about the attachments.

PN768

MR HOOKER: I want to come to that separately, your Honour.

PN769

THE VICE PRESIDENT: I thought that might be the case. In relation to the time, if necessary, once Mr Ryan is dealt with, the matter can be adjourned to give you an opportunity to read the statement further, if you wish. In the normal course, look, I accept that there hasn't been compliance with the directions. I understand and am not unsympathetic to the difficulties that the applicant has found themselves in with the other proceedings running at the same time, that they've also been in the position where they weren't aware in the totality of the evidence, or the detail of the evidence of the Leighton witnesses. So there have been issues flowing in both directions in respect of these matters.

PN770

I wouldn't be inclined to exclude it on that basis. Your other bases deal with admissibility and I think there are issues of admissibility in relation to all the statements. If one was to strictly apply the rules of evidence, there are a number of matters that might not have gone in and I would prefer to admit it and deal with it as a matter of weight and submission. As I have indicated you are able to make whatever submission you wish to make in relation to the failure to call Mr McDonald and the weight I should attach to the evidence of Ms Scoble insofar as it is relaying Ms Scoble's belief as to Mr McDonald's state of mind.

PN771

MR HOOKER: May it please the Commission.

PN772

THE VICE PRESIDENT: In relation to the attachments, these are what are referred to as, well, in some instances, the character references. What do you wish to say about that?

PN773

MR HOOKER: I oppose the admission of those on the basis that it is opinion evidence given in simply a vacuum, in our submission. Normally, of course, when opinion evidence is put there's a factual foundation for it, for example, some medical opinion is expressed or an economic opinion, but we get these statements of, loosely, character that simply sit, expressed at a level of generality and in a vacuum. We don't know on what basis these "witnesses" are expressing that opinion. We don't know what they've been told about these proceedings and their background. We don't know if they're aware of the context on which we rely.

PN774

Maybe the argument against us is, well, that's just another fancy way of putting an argument about weight, but there has to be - - -

PN775

THE VICE PRESIDENT: There's also a temporal question, when were they given, were they given before or after the events of the last few days?

PN776

MR HOOKER: Your Honour, that's another specific dimension of the overall point we made about the absence of any factual framework or foundation for what these people are saying. There's no opportunity to cross-examine those people as to those matters, there's no opportunity for your Honour to assess the demeanour, the apparent conviction of these people as they advance these words expressed in a vacuum at a level of generality. If this was ever going to be a hearing that involved a contest on documentary opinion, on my instructions we could have put numerous documents similar in character and then it would become a bit of a façade, in our submission, about counting heads in terms of statements expressed at this level of generality. Overall the probative value, we submit, has to be so weak and tenuous that it wouldn't meaningfully assist your Honour.

PN777

THE VICE PRESIDENT: Thank you. I don't need to hear you in relation to that, Mr Dixon. I would indicate and acknowledge the force of the arguments that are advanced, that the documents don't reflect any understanding of the context in which the case has proceeded, or the evidence. They're unsworn and they are general in nature. However, consistent with the approach I've taken in relation to the admission of material relied on by the OEA, I'll admit the material and the parties can make submissions as to the weight to which I will attach to it. That brings us back to Ms Scoble.

PN778

MR HOOKER: Yes, I will want to cross-examine her on some aspects of her statement, your Honour.

PN779

THE VICE PRESIDENT: Let's deal with Mr Ryan first. Mr Ryan, you understand that you're still under oath from yesterday?

PN780

MR RYAN: Yes.

<DAMIAN TIMOTHY RYAN, ON FORMER OATH [9.44AM]
<CROSS-EXAMINATION BY MR DIXON

PN781

THE VICE PRESIDENT: Mr Dixon has some questions for you in relation to your evidence of the other day.

PN782

MR DIXON: Mr Ryan, you gave evidence yesterday particularly in relation to events that occurred in this building. Do you recall giving that evidence?---I do.

PN783

I just want to ask you a few questions about your relationship with Mr McDonald generally and I suppose just by way of introduction, we got a snapshot yesterday or one particular incident when we delved into some of the other aspects of your relationship with Mr McDonald particularly. In relation to those proceedings, I put it to you that at issue was a safety matter which included the number of safety representatives on the Package E project. Do you recall that being an issue between the parties at the time?---That's correct.

PN784

That, in fact, has been an issue which, since that date of 27 July, has been ongoing?---Yes. It has been raised a few times that the union wanted to have union delegates as safety reps on site, or union nominated safety reps.

PN785

In the context of that, is it fair to say that the other issue that arises from the safety issue is that the union has complained about a procedure that has been adopted in relation to concrete pours and launches. Are you aware of that issue?---There has been an issue raised on that, yes.

PN786

As part of resolving that issue you've had to have a dialogue with Mr McDonald. Is that a fair comment?---There was a request at conciliation on 29 July, if I recall.

PN787

When you say request, who made that request?---The union.

PN788

When you say the union, do you mean Mr McDonald particularly?---We were asked to come in to a Conciliation Commission chaired by Commissioner Gregor.

PN789

You're talking about the actual proceedings on the 29th?---On the 9th - 29th, yes.

PN790

That involved the issues that I've just put to you?---Correct.

PN791

It may not be an issue, your Honour, I was going to tender it with this witness or alternatively Ms Scoble, there's ..... Ms Scoble. There's a form R47 notice and a listing for the 29th and the form R47 notice sets out what the issues are in a schedule.

**** DAMIAN TIMOTHY RYAN XXN MR DIXON
PN792

THE VICE PRESIDENT: I don't think there will be an issue in you tendering them directly if they're matters that have been filed.

PN793

MR HOOKER: I'll take leave since my friend is kindly offering it to me but it's on its face.

PN794

MR DIXON: There's a copy .....

PN795

THE VICE PRESIDENT: Yes. I'm sorry, my associate has ducked out for a moment.

PN796

MR DIXON: Can you just turn over to page 2 of the form R47 notice, Mr Ryan. Do you see the schedule there?---Mm.

PN797

Does that accord with your understanding of what was in issue between the parties around that time?---Yes. I haven't actually seen this one before but I've definitely seen the subject you spoke about, yes.

PN798

I tender that, your Honour.

PN799

THE VICE PRESIDENT: You might hold onto it for the moment and we'll deal with it in a moment.

PN800

MR DIXON: Those matters were in issue for sometime around that particular point in time, were they not?---They were raised - these issues were raised on the 27th after the guys had walked, yes.

PN801

The 27th was when you gave evidence in a section 127 hearing?---That's correct.

PN802

That was the incident when you gave evidence yesterday in relation to what Mr McDonald's reaction was to your evidence after the hearing. Is that correct?
---Well, in relation to my evidence and the issuing of the 127 order.

PN803

And issue of the 127 order. Just touching upon that, Mr McDonald, did he not, express his disappointment with you at a number of things and I'm just obliged to put them to you. One was that you declined a meeting that afternoon in order to resolve the issue?

PN804

THE VICE PRESIDENT: Which afternoon?

**** DAMIAN TIMOTHY RYAN XXN MR DIXON
PN805

MR DIXON: The afternoon of the 27th. You don't recall that?---I was not directly requested to attend a meeting on the 27th.

PN806

Are you aware of the meeting?---There was a meeting in the morning between Joe McDonald, Mick Powell and some site representatives of Leighton Contractors and from what I understand from that, there was some reference to a 3 - there'll be a 3 o'clock meeting that afternoon with CFMEU officers which I wasn't invited to.

PN807

If you're saying you were not invited, that's fine. The other issue that Mr McDonald expressed his disappointment at, this after the order was issued, was that you declined to go into conference and conciliate the matter during the course of the 127 proceedings. Do you recall Mr McDonald taking issue with that?---The issue on the 27th for the 127 was the fact that the blokes hadn't followed a dispute resolution procedure and walked. That was the issue why we didn't go into conference. It wasn't got to do with any of the issues where Leighton Contractors have said time and time again, "We're quite prepared to discuss issues and try and resolve issues but if the blokes are going to walk before the issues have been raised, we're not prepared to go into conciliation."

PN808

That's fine, Mr Ryan. All I'm putting to you is that these were one of the matters that Mr McDonald expressed disappointment about?---He didn't express that directly to me on that day.

PN809

When you say not directly to you, did you hear him mention that to another person in your presence?---Not to me.

PN810

The third issue that Mr McDonald conveyed his disappointment to you had to do with your evidence in relation to the timing or the start of the night shift. Do you recall him mentioning that to you?---My recollection is that was solely what he raised with me.

PN811

Your evidence was, and I'm reading here off the transcript which is OEA3, at paragraph number 206, you were asked by Ms Scoble:

PN812

What time does the night shift usually start?

PN813

Your answer was:

**** DAMIAN TIMOTHY RYAN XXN MR DIXON
PN814

About 6 o'clock.

PN815

Do you recall saying that?---That's correct.

PN816

Mr Mullan yesterday gave evidence in these proceedings, made a statement to the effect that night shift starts at around 6.30 to seven. Would you take issue with that?---No.

PN817

Mr McDonald's issue with you was that night shift does usually start around 6.30 to seven?---My recollection of the proceedings was that there was a disagreement between - well, it wasn't a disagreement as such, it was at the time I was giving evidence no one had reported to work. That was the issue. Joe turned around and apparently contacted someone while I was on the stand but I did not have the information that he had. Subsequent to that I understand on that particular night the night shift started at seven and as I was giving evidence no one had reported to work.

PN818

THE VICE PRESIDENT: Sorry, when you say subsequent?---Sorry?

PN819

When you say - - -?---Well, I mean, if there's an issue raised I try and follow it up so after we came out of the Commission hearing I made some phone calls to find out what was going on, to see if they had actually reported to work or not and the night shift that night was not starting till seven and as at that time no one had reported because it was before seven, it was well before seven.

PN820

Ultimately did people attend for work at the commencement of night shift on that night?---Yes, I believe they did. Yes.

PN821

MR DIXON: In relation to the agreement between Leightons and CFMEU which applies on - which is an operation on ..... were you aware that Mr McDonald and Mr Bevan of your company, together with Mr Cutura of the CFMEU negotiated the groundwork for that agreement?---Yes, I am.

PN822

Were you present at some of those meetings?---No, I wasn't.

PN823

In relation to right of entry on that agreement, is it not the case that there was an agreement made between Mr Bevan and the CFMEU that CFMEU organisers would be able to attend the site without giving 24 hours' notice. Are you aware of that arrangement?---I'm aware, I've been told by Mr Bevan that they would still give us prior advice. Whether it be 24, I don't believe that was to enforced.

**** DAMIAN TIMOTHY RYAN XXN MR DIXON
PN824

I wasn't to be enforced. I'm sorry, I missed your answer?---I'm saying that there was to be prior notification to coming onto site, right, but whether it was stipulated it was 24, I don't believe that was the case, which was an agreement between Doug and, I believe, Joe.

PN825

That included Mr McDonald, that agreement?---Well, I think it was representatives of the CFMEU.

PN826

If I could just take you to this week, this week you became aware of a request by the union to have a meeting at 7 am in order to update members on the status of the 127 order. Did you receive a request of that nature?---I was told it was going to happen.

PN827

You were told it was going to happen. You then became aware that Leightons wrote to the CFMEU in relation to that matter. Are you aware that Leightons communicated with the CFMEU?---Very much so, yes.

PN828

If I could just show the witness a document. Did you come into possession of that document, Mr Ryan?---Yes, I've viewed that one.

PN829

That document seems to indicate to the union that Leightons opposes the proposed meeting at 7 am?---Yes. I mean, there's a distinction between coming on site and calling a mass meeting. That's correct.

PN830

Sorry, can you repeat that?---There's a distinction between coming on site as opposed to calling a mass meeting and disrupting works.

PN831

Isn't the case that after that letter was received that Mr McDonald contacted you and after a phone call or two essentially called the meeting off. Is that your understanding?---Yes. At the end of our phone call I was left with the impression that Joe was still going to attend the site and have the meeting. I subsequently found out that the meeting had been put off, yes.

PN832

Was it the case that Mr McDonald had left a message on your phone and indicated that the meeting wouldn't go ahead?---No, not on my phone.

PN833

Mr Bevan's phone?---I'm not sure.

PN834

You're not sure?---I'm not aware of that, no.

**** DAMIAN TIMOTHY RYAN XXN MR DIXON
PN835

But the meeting didn't go ahead?---That's correct.

PN836

I tender that.

PN837

THE VICE PRESIDENT: Is it convenient to tender the other documents now too?

PN838

MR DIXON: Yes.

EXHIBIT #CFMEU3 LETTER FROM MR BEVAN TO SECRETARY CFMEU DATED 13 SEPTEMBER
EXHIBIT #CFMEU4 FORM R47 NOTIFICATION OF DISPUTE
EXHIBIT #CFMEU5 NOTICE OF LISTING FOR CONFERENCE BEFORE COMMISSIONER GREGOR ON 29 JULY

PN839

MR DIXON: Mr Ryan, just taking you back to the phone call that you had with Mr McDonald following the receipt of the letter that was just tendered, dated 13 September 2005, in that phone call you discussed with Mr McDonald, did you not, the calling off of that meeting?---Joe - the phone call I think was on the Tuesday prior. Joe asked me if I was going to let them have the meeting and I think I responded in the manner, "Look, I'm not going to stop you, as in physically stop you entering the premises or anything like that," but he has to understand that as far as Leighton Contractors are concerned, that it falls - it falls in as industrial disputation, having a mass meeting, because our understanding was that the meeting had nothing to do with - it had to do with union levies or something like that and it was disruptive to our work and against the 127 order.

PN840

During the course of that conversation, your dialogue was quite pleasant, there wasn't any heated exchange?---No, not at all.

PN841

You sounded emphatic about that. Is that uncommon, that you talked with Mr McDonald on a fairly civil basis? Is it uncommon?---No, it's not uncommon.

PN842

When there are the occasional heated words exchanged, would you put that down to a clash of temperament and style over industrial issues?---I would say that Joe is fairly passionate about certain issues and we don't always see eye to eye.

PN843

Notwithstanding those issues, you're able to, are you not, maintain a constructive dialogue with Mr McDonald and resolve issues that arise from time to time?---I would say yes. I don't - we don't always resolve issues in a - probably amicably but I mean, issues are resolved.

**** DAMIAN TIMOTHY RYAN XXN MR DIXON
PN844

If I could just show the witness a document. It's a letter dated 13 September 2005 from Mr McDonald to Mr Ryan.

PN845

Do you recall receiving that letter, Mr Ryan?---I do, yes.

PN846

This is essentially, is it not, to do with the issue which I mentioned earlier that was subject to the 127 proceedings back in July?---Mm.

PN847

That's the same issue. Is that correct?---Yes. This is a follow-up letter from our discussions on 29 July, I would think.

PN848

If I could just the witness another document.

PN849

That's a letter in front of you dated 15 September 2005 addressed to Mr McDonald from you? That's your response, is it not, to the concerns raised by Mr McDonald in the letter of the 13th?---Yes, I think this is a letter, I suppose, in response to their letter confirming that we have been addressing the issues ongoing and, yes, confirm - and I suppose trying to alleviate any concerns that he may have with that issue.

PN850

Is it fair to say that that's an example of a constructive outcome?---Yes. It's the first time Joe has actually written me a letter, but I mean, it's, you know, the basis of discussions and stuff, yes.

PN851

I tender that. It's a bundle, I'll tender each letter separately

EXHIBIT #CFMEU6 LETTER FROM MR MCDONALD TO
MR RYAN DATED 13/09/2005
EXHIBIT #CFMEU7 RESPONSE DATED 15/09/2005

PN852

MR DIXON: I have no further questions.

PN853

THE VICE PRESIDENT: Thank you, Mr Dixon. Re-examination?

<RE-EXAMINATION BY MR HOOKER [10.03AM]

PN854

MR HOOKER: Mr Ryan, taking you back to when you gave you evidence on 27 July on the 127 application, you have just told us this morning that you said in your evidence that at that period of time, no one had reported to work as of the last you had heard of the issue?---That's correct.

**** DAMIAN TIMOTHY RYAN RXN MR HOOKER
PN855

I've summarised that correctly, haven't I?---That's right.

PN856

How did you know that? Did you have a particular source for knowing that?
---During the Commission hearing we made phone calls prior to myself giving evidence and confirmed that at that time no one had reported for work.

PN857

Did one of your colleagues tell you that, which was the basis for your evidence when you went into the box?---That's correct.

PN858

Who was that colleague?---I think that was Aidan Mullan.

PN859

Thank you, Mr Ryan, no further re-examination.

PN860

THE VICE PRESIDENT: Thank you for you evidence, Mr Ryan, you're excused.

<THE WITNESS WITHDREW [10.04AM]
<KAREN LESLIE SCOBLE, AFFIRMED [10.04AM]

PN861

MR DIXON: Your Honour, can I just say that Ms Scoble has left my side and already my system is falling apart. I've only got one copy of her witness statement. Did you take one up with you?

PN862

THE WITNESS: No, that's a spare copy.

PN863

MR HOOKER: While my friend is worried about housekeeping, can I say that annexure KS1 didn't come through in the fax.

PN864

MR DIXON: No, didn't come through in mine either. It's just a blank.

PN865

THE VICE PRESIDENT: Do you have the original?

PN866

MR DIXON: KS1?

PN867

THE VICE PRESIDENT: No, the document, the statement.

PN868

THE WITNESS: It should be on that file in front of Tim.

PN869

THE VICE PRESIDENT: I've got a feeling you're going to have to go down and assist them in a minute, Ms Scoble. Can you show Mr Hooker KS1 if for some reason it hasn't come out? KS1 is the state permit. Is that right?

PN870

MR HOOKER: It's either the state permit or - I don't want to give the evidence - a form of words.

PN871

THE VICE PRESIDENT: In any event, it's not in issue that Mr McDonald holds a state permit?

PN872

MR HOOKER: That's correct.

PN873

THE VICE PRESIDENT: Got your statement now, Mr Scoble?

PN874

THE WITNESS: Yes.

<EXAMINATION-IN-CHIEF BY MR DIXON [10.06AM]

PN875

MR DIXON: Ms Scoble, you have a document in front of you. Have you got that there?---Yes, I do.

PN876

If you could just turn to page 6 of 6, that's your signature and the date 15 September 2005?---Yes, it is.

**** KAREN LESLIE SCOBLE XN MR DIXON
PN877

Your evidence in this statement is true and correct to the best of your knowledge?
---Yes, it is.

PN878

I tender that statement.

EXHIBIT # CFMEU8 STATEMENT OF KAREN LESLIE SCOBLE DATED 15/09/2005

PN879

THE VICE PRESIDENT: Mr Hooker.

<CROSS-EXAMINATION BY MR HOOKER [10.07AM]

PN880

MR HOOKER: Ms Scoble, when did you actually prepare this statement?
---Yesterday afternoon.

PN881

If I can take you specifically to paragraphs 16 and 17 of your statement, is it fair to summarise what you're saying there that you from time to time tell Mr McDonald and other organisers what their legal obligations are, as you perceive them, under the state Act and the Federal Act?---Yes, that's correct.

PN882

Taking you to paragraph 18, you give evidence there about something Mr Kevin Reynolds has said in your presence to Mr McDonald and others. When did that happen?---That would have happened on several occasions.

PN883

When is the last time that it happened?---The last time that I was present when it happened, it would have been when our national industrial officer, Tom Roberts, was visiting Perth to discuss the changes to the legislation that would affect CFMEU. I'm not sure of the exact date but I believe it may have been in June or July.

PN884

Of this year?---This year, yes.

PN885

That meeting, if I could call it that, I think a particular term of art, that meeting in paragraph 18 that you give evidence about on the most recent occasion, was in the context of an overall discussion about potential changes to the law that would affect your union. Is that correct?---That's correct.

PN886

It would be fair to say, wouldn't it, that the overall tone of that meeting would have been critical of the proposed changes, as they had been well publicised?
---I'm not sure if it's critical, it's more about how we have to change the way we do things to comply with the new laws.

**** KAREN LESLIE SCOBLE XXN MR HOOKER
PN887

It those laws are passed, you would see that as something negative, wouldn't you, for how your union and its officers go about their jobs?---I don't personally agree with the laws but that's the law. We have to comply with them and that's, I think, what is intended that will happen.

PN888

Regardless of your own personal perceptions, in terms of what you saw and perceived about the tone of that meeting, it would inevitably have been highly critical about the proposed changes, as your union perceives them?---I don't think it was critical, it was just more about talking about what the changes are and how the union expects to deal with them.

PN889

How long did the discussion take, insofar as you were present?---Perhaps an hour or so.

PN890

What proportion of the overall discussion involved the specific statements that you talk about in paragraph 18?---You're talking about time-wise?

PN891

Yes. Did it take 30 seconds, two minutes, five minutes?---I would say it probably took about 15 minutes.

PN892

Fifteen minutes for Mr Reynolds in your presence to tell Mr McDonald and others about those things that you refer to in paragraph 18?---It was a discussion so it wasn't just what Mr Reynolds said. There was comments offered from other people that were there and I suppose questions from other people that were there.

PN893

Did Mr McDonald himself participate in the discussion?---Mr McDonald was present. I can't tell you if he actually said anything.

PN894

Even though you were present?---Yes. I don't remember whether Mr McDonald said anything.

PN895

What was Mr Reynolds' tone when he said that he required all organisers, including Mr McDonald, to do those things?---He was quite emphatic that it was important that people comply with the law.

PN896

Did he say it with a smile on his face?---No, he was serious.

PN897

He appeared to you to be serious when he said those things?---He did, yes.

**** KAREN LESLIE SCOBLE XXN MR HOOKER
PN898

When was the occasion before that, before the meeting you've just evidence about, that Mr McDonald said those things in your presence?---Do you mean Mr Reynolds?

PN899

I'm sorry?---I know that there was an occasion in relation to the BGC had sought an interlocutory injunction against the CFMEU and some of its officials.

PN900

Is that the Master Sanderson proceedings in the Supreme Court?---That's correct; in the context of that. I believe Mr - I was present when Mr Reynolds spoke to union officials, including Mr McDonald, specifically about exercising their right of entry. I don't recall the date of that.

PN901

Is it fair to say your memory is not particularly strong of what was said at the meeting and how it was said?---At that meeting I recall what happened, I'm just not sure of the actual date.

PN902

Can I take you to paragraph 21, Ms Scoble. You evidenced there that Mr McDonald told you he's going to strictly comply with the Federal Act if he gets a right of entry permit. When did he tell you that?---When we were discussing instituting these proceedings, which was some months ago, we had a conversation in relation to that issue.

PN903

Was that the same occasion as what you talk about in paragraphs 19 and 20 or a different occasion?---That would have been the same occasion.

PN904

That's in effect one conversation, is it, at 19, 20 and 21 where those things were said?---Yes.

PN905

When Mr McDonald told you what you give evidence about in paragraph 21, did you talk to him about statements he's published in the Construction Worker journal in response to not having a right of entry permit?---No.

PN906

Did you talk to him about statements he's reported as having made in the press about what he will do if he doesn't have a right of entry permit?---No, I didn't.

PN907

You simply accepted at face value, did you, what he informed you about as you record in paragraph 21?---Yes, I did.

PN908

He told you that in the context of that particular conversation and that's your basis for the belief that you depose to in paragraph 21?---That's correct.

**** KAREN LESLIE SCOBLE XXN MR HOOKER
PN909

Thanks, Ms Scoble, I have no further cross-examination.

PN910

THE VICE PRESIDENT: Ms Scoble, can I just ask you, you were asked questions in relation to paragraph 18 and the timing of that meeting and I think you indicated it was either in June or July this year, was it before the proceedings in the Commission on 27 July involving Leightons?---I'm not sure, I'm sorry, your Honour.

PN911

Are you able to confirm later when the meeting took place?---Yes, I can do that.

PN912

Maybe nothing turns on it but if you can confirm from a diary entry or something of that nature, it might assist?---Yes, your Honour.

PN913

Any re-examination?

PN914

MR DIXON: It was not going to be re-examination but something may arise out of your Honour's question just in relation to the proceedings on the 27th. If I would be permitted to ask this -

<RE-EXAMINATION BY MR DIXON [10.16AM]

PN915

MR DIXON: Ms Scoble, you were present on the 27th at this Commission?
---Yes, that's correct.

PN916

Do you often attend Commission proceedings and court proceedings with
Mr McDonald in your presence?---Yes, I do.

PN917

Can you describe his conduct in those instances or those proceedings generally?

PN918

MR HOOKER: That's a question at such a level of generality, in my submission, that - - -

PN919

THE VICE PRESIDENT: I'm struggling to see how it arises in re-examination.

PN920

MR HOOKER: It was certainly borderline.

PN921

THE VICE PRESIDENT: Borderline?

PN922

MR HOOKER: I suppose I gave my friend a concession on that because it's meeting the Leighton's evidence but I adopt that as well if it please, your Honour.

**** KAREN LESLIE SCOBLE RXN MR DIXON
PN923

MR DIXON: If it be though that was typical of Mr McDonald's conduct, I'm simply trying to establish that - ask the question whether or not it was typical in Ms Scoble's experience.

PN924

THE VICE PRESIDENT: Can you put the question again? What was the question again?

PN925

MR DIXON: The first question I asked was whether or not Ms Scoble had the occasion to attend court proceedings and Commission proceedings in the presence of Mr McDonald.

PN926

THE VICE PRESIDENT: I think the answer to that was yes, wasn't it?---That's correct.

PN927

MR DIXON: Then I asked Ms Scoble to describe his behaviour in the course of those proceedings.

PN928

THE VICE PRESIDENT: Which proceedings in particular?

PN929

MR DIXON: That's exactly right. I mean, the question was poorly put.

PN930

THE VICE PRESIDENT: Ms Scoble has been in the position since May 2003, how many and which proceedings are you referring to?

PN931

MR DIXON: If I be permitted I'll go back and correct it.

PN932

THE VICE PRESIDENT: I'm not sure how I'm going to be assisted by Ms Scoble's perception of Mr McDonald's behaviour in Commission proceedings generally. I'll allow you to put it but Mr Hooker will be permitted to cross-examine should he wish in relation to these matters.

PN933

MR DIXON: Yes.

PN934

Ms Scoble, how many times had you had the opportunity to attend court or Commission proceedings with Mr McDonald in your time at the CFMEU?
---I'm not sure exactly. I could say at least 30 times or so.

PN935

Have you ever seen behaviour of the type that Mr McDonald exhibited on 27 July?

**** KAREN LESLIE SCOBLE RXN MR DIXON
PN936

THE VICE PRESIDENT: What behaviour was that?

PN937

MR DIXON: Ms Scoble, you heard the evidence of Mr Ryan and Mr Mullan. Have you ever seen, apart from the 27th, any behaviour that fits the description given by those two witnesses?---No.

PN938

THE VICE PRESIDENT: I'm not sure you have to prove a negative. The only issue that has been put is in relation to Mr McDonald's behaviour on the 27th. It's not suggested that he has behaved in the same way on every other occasion he has appeared.

PN939

MR DIXON: No, but less there be any inference, I'll be submitting that it was out of character.

PN940

THE VICE PRESIDENT: All right. Anything else?

PN941

MR DIXON: No, that's all.

PN942

THE VICE PRESIDENT: Anything arising?

PN943

MR HOOKER: I don't need to cross-examine on that, your Honour.

PN944

THE VICE PRESIDENT: Thank you, Ms Scoble, for your evidence, you're excused.

<THE WITNESS WITHDREW [10.20AM]

PN945

THE VICE PRESIDENT: That completes the witness evidence, any progress in relation to the certificate?

PN946

MR HOOKER: I think not, your Honour. What I was going to propose was just an opportunity to get some instructions on that and a few other matters about what we're relying on and not relying on which I can then tidy up for closing.

PN947

THE VICE PRESIDENT: How long do you require?

PN948

MR HOOKER: I would be obliged for that brief opportunity.

PN949

THE VICE PRESIDENT: We'll probably both be assisted by say until a quarter to 11. Would that he convenient? Can we just deal with the order in which you will each be putting it. In the normal course - well, I propose, subject to what each of you wish to say, Mr Dixon, you would put what submissions you wish to put in support of the application, Mr Hooker would put his position and you would be able to reply to that.

PN950

MR DIXON: That's fine, your Honour, given that I know what the objections are.

PN951

THE VICE PRESIDENT: You will be able to reply to them once you've heard Mr Hooker in any event.

PN952

MR DIXON: Yes.

PN953

MR HOOKER: I would endorse that, with respect.

PN954

THE VICE PRESIDENT: Nothing further? I'll adjourn until a quarter to 11.

<SHORT ADJOURNMENT [10.21AM]
<RESUMED [10.48AM]

PN955

THE VICE PRESIDENT: Yes, Mr Dixon.

PN956

MR DIXON: Thank you, your Honour. Your Honour, the application by the federal union proceeds on the basis that the initial revocation over four years ago now, was proceeded upon on the basis of an agreed position between the parties. In my submission that was certainly indicative of an amount of contrition on the part of Mr McDonald in that none of the matters put forward as at that time were contested. When one looks at the ensuing four years I'm fortified in making the submission that the gravity of the conduct in 2001 and before that was part of the initial revocation, and the relevance of it to this application, is attenuated by the passage of time.

PN957

Since the 2001 revocation, if I could call it that, there have been a number of matters that have been the subject of evidence today, however, in my submission, apart from the assault there is nothing in the nature, certainly the frequency and gravity of the matter that were complained of were subject to the initial revocation. That, in my submission, is indicative of modification on the part of Mr McDonald, his behaviour.

PN958

There is evidence from Ms Scoble who was authorised on behalf of the union and this evidence is germane in my submission, your Honour. Certainly there's a decision involving Mr Tracey and I can give your Honour reference to that where the views of the union were opposing revocation in that case were considered germane. Certainly the evidence of Ms Scoble is such, and albeit part of it being hearsay, is that Mr McDonald plays a critical role within the union and there is now a emphasis in place where in the type of conduct that was subject to the first revocation is not tolerated certainly by the state secretary.

PN959

Also in evidence is the statement of agreed facts. Again, arising out of those facts is that Mr McDonald had his state permit suspended on one occasion for a period of three months. Apart from that, in that time there has been no other instances of Mr McDonald's state permit being affected in that way under section 49(j)(5) of the state Act. Again, my submission is that it can be inferred from that by and large Mr McDonald's conduct in the state jurisdiction, while you can't say exemplary before of the fact it has been suspended once before, again shows an improvement and a modification in the behaviour that was complained of prior to 2001.

PN960

Your Honour, this really has to be looked at in the context of the state Act and I should say at this point in time that I rely upon the legal written submissions. I don't intend to traverse these in any great length. There is just one matter that I wanted to bring to your Honour's attention in the state Act that if one looks at the objects in section 3 it is apparent that the focus and the orientation of the state legislation is towards a regime of collective bargaining. Your Honour, there is no equivalent to section 170LK in the state Act. There's no ability for employees to make collective agreements with employers. The only options under the state Act, leaving aside state awards, are agreements between organisations and employers and individual agreements, employee-employer agreements.

PN961

Given that, if one goes to section 42(b), this is to be found in Division 2B of Part II, your Honour will see that the heading if Good Faith Bargaining for Industrial Agreements. There is no equivalent to the protected action provisions in the federal legislation. There is no ability for an organisation or an employer to take any action which is protected in the way that it's protected under the federal legislation. Additionally there is no equivalent to section 166A of the Federal Act. There's no protection from or immunity from actions in tort as a result of actions taken by organisations to strike collective bargains with employers.

PN962

For example, if one looks as section 42(b)(3) subsection (3) it reads:

PN963

The Commission may, having regard to the circumstances in which industrial action occurs, determine that engaging in industrial action was a breach of the duty to bargain in good faith.

PN964

That, in my submission, is the only imprimatur, if I can put it that way, from the parliament that industrial action is recognised as being an essential instrument in striking a bargain, a collective agreement with employers.

PN965

THE VICE PRESIDENT: Are there any authorities in support of that proposition?

PN966

MR DIXON: No, not that I know of. There is certainly a contemplation there that industrial action may involve bargaining in good faith is my submission.
That's the obverse of what's written there.

PN967

THE VICE PRESIDENT: That's the inference you draw from that section, is it?

PN968

MR DIXON: That's my construction and my submission, yes. In that framework one has to look at the conduct of union officials, including Mr McDonald when exercising their state rights.

PN969

THE VICE PRESIDENT: Just before you leave the point you just made, what are the consequences of a conclusion that conduct is in breach of the duty to bargaining in good faith?

PN970

MR DIXON: If good faith bargaining comes to an end, the Commission may make a declaration under 42(h), for example that bargaining has ended and then proceed to make an enterprise order.

PN971

THE VICE PRESIDENT: So it sits much the same way as a termination of a bargaining period federally.

PN972

MR DIXON: There are no provisions to enjoin the action specifically, as there was under the prior Act which contemplated injunctions and the like. In my submission that remains unstated. I should say as well, your Honour, that Division 2(g) which has been the subject of some discussion in these proceedings, being the right of entry provisions, these were inserted and became operative in or about August 2002. For a period of just over three years there has been an ability for employers and the state equivalent of the federal task force, which the acronym is BISBY, to apply for a revocation of Mr McDonald's permit under section 49(j)(5) of the Act on the basis that his behaviour was either improper or there was undue hindrance or interference. That has happened once and that's in relation to the decision of Senior Commissioner Gregor and I'll come to that in due course.

PN973

My submission in relation to the structure of the Act supports the view that Mr McDonald's conduct has modified to the point where he is operating within a regime that doesn't offer the same sorts of protections as the federal regime does, and yet notwithstanding that, he has managed to maintain his state permit for over three years under the new legislation without it being revoked. Again, that in my submission is indicative of a modification of the behaviour that was complained of and subject to the revocation in 2001.

PN974

Your Honour, if I could just come to the case against, and I appreciate that Mr Hooker will be making certain submission on that. However, I have had the benefit of reading the summary now so I'm able to anticipate some of the matter that Mr Hooker will put. Of course I will reserve my right to expand on that if it goes beyond what I had anticipated.

PN975

In relation to paragraph (a) - - -

PN976

MR HOOKER: Your Honour might not have the document. I'll hand it up.

PN977

THE VICE PRESIDENT: It might be convenient to mark this.

EXHIBIT #OEA15 DOCUMENT

PN978

MR DIXON: At this point, your Honour, I need to explain something to the court. There's obviously going to be a submission made in relation to the failure of Mr McDonald to give evidence on the application. Obviously a Jones v Dunkel type submission is open to my friend to make. However, I say this: the matters that have been raised in this application, including in relation to John Holland and Leighton, have the potential to give rise, and this is without making any concessions or admissions to inter alia civil penalties under the federal Act, these may be visited upon either Mr McDonald or the applicant, amongst other people.

PN979

My instructions are that Mr McDonald was not to be called in support of the federal union's application for the reason that there was a real chance, and not a far-fetched or fanciful chance, that his evidence may lead to a chain of inquiry which could result in such civil penalties.

PN980

THE VICE PRESIDENT: There are two aspects to that. Why would that prevent him from being called? To the extent that an answer may expose him to a civil penalty, he could rely on the privilege against self incrimination. As for the organisation's position, well, the privilege is not available in respect of an organisation. In the normal course, he could still have been called and have responded to matters which would not have placed him in that position and relied on the privilege where there was a basis for it. It also doesn't address one of the advanced by the OEA in its written submissions that he has not been called to support any submission in relation to contrition or modification of behaviour or that he would be evincing an intention to abide by the right of entry provisions in the Federal Act or indeed the objects of the Federal Act. There are a number of limbs to it.

PN981

MR DIXON: Yes, I understand. If I could just deal with that, your Honour. Firstly, in relation to the organisation, I appreciate that the privilege would apply to Mr McDonald, however, given that it's the organisation's application, it's simply a choice on their behalf to avoid the potential of that outcome.

PN982

THE VICE PRESIDENT: I understand your tactical considerations in it. Can I take you to one other matter. The evidence of the two Leighton's employees as to what they say regarding threats made by Mr McDonald as to future industrial action in the event that they pursued the 127 order or the 127 order was issued, none of that material has been contested. Ms Scoble was also present when those statements were made, based on the evidence of the two witnesses I have. Ms Scoble wouldn't have been exposed to a penalty because no one has alleged that she has said anything or done anything inappropriate. Do I take it that the evidence of those witnesses in relation to the events of 27 July is not contested?

PN983

MR DIXON: In my submission, that's the only way that that evidence could fall, given that they weren't cross-examined on it. Apart from this, your Honour, my only submission in relation to that is that history militates against the genuineness of the threat.

PN984

THE VICE PRESIDENT: I think it's conceded industrial action was taken on the Friday.

PN985

MR DIXON: Two days later.

PN986

THE VICE PRESIDENT: Yes.

PN987

MR DIXON: Yes, there was no evidence that Mr McDonald was involved in that but in relation to the evidence that Mr McDonald was going to camp at the site and whatever you can infer from that, create havoc, there has been no evidence that that has been the case and indeed, my cross-examination was directed towards establishing that a constructive relationship continued to exist between the person who has received the threat and Mr McDonald. That was what that cross-examination was directed to, not that the threats didn't occur.

PN988

THE VICE PRESIDENT: Which particular parts of the evidence do you say Mr McDonald's failure to give evidence is explained on the basis that to give evidence dealing with the matter would expose him to a civil penalty?

PN989

MR DIXON: In relation to the Leighton's evidence, for example?

PN990

THE VICE PRESIDENT: I want you to particularise the point you're making, rather than making a general submission that it might and that's why he hasn't been called. Which particular aspects of the evidence do you say he was not in a position to respond to because it may expose him to a civil penalty?

PN991

MR DIXON: Can I say two things about that. I'll particularise that as your Honour requests it but, in my submission, the cross-examination in this was not going to be limited, it could have been at large so there was a real concern that Mr McDonald as a witness for the applicant in this matter may have been questioned on a whole range of matters that we weren't put on notice about. There's no doubt it was a tactical decision in those considerations, including privilege played a part in that. I am simply trying to explain that they are my instructions as to why Mr McDonald was not called.

PN992

THE VICE PRESIDENT: I'm not suggesting they're not your instructions, Mr Dixon. Jones v Dunkel inferences won't be drawn in circumstances where there's a satisfactory explanation for the failure to call. I'm exploring the basis for the submission that there was a satisfactory explanation. What you've just said doesn't persuade me in that regard. The fact that Mr McDonald may have been cross-examined about matters which weren't the subject of any evidence-in-chief by another witness, well, the answer to that would be that if his answer would tend to expose him to a penalty, then he could opt to decline to answer and take advantage of the privilege.

PN993

What I'm asking, though, is what evidence that is in that Mr McDonald may have responded to, do you say that the reason for his not being called to provide evidence in relation to those matters is because it would expose him to the risk of a civil penalty?

PN994

MR DIXON: If I could just take you to that, your Honour. In relation to the evidence of Leightons, the evidence is that Leightons are bound by a federal certified agreement. The allegation, as I understand it, is that Mr McDonald was instrumental in procuring industrial action at least on 27 July and that this was in breach of a dispute settlement procedure that could give rise to proceedings under section 170MN and indeed, section 178 of the Federal Act which would result in civil penalties. That, in my submission, is sufficient to attract the privilege in his case and certainly there's the consideration of the union, the tactical consideration.

PN995

THE VICE PRESIDENT: I suppose, in relation to that, isn't the difficulty that the only evidence I have in respect of those matters is the evidence of the Leighton's witnesses.

PN996

MR DIXON: Yes.

PN997

THE VICE PRESIDENT: It's not that there's a conflict, there's their evidence to the extent that they weren't cross-examined in relation to it, why wouldn't I accept it? Do you understand the problem? To the extent that their evidence supports the proposition that he was instrumental in procuring the industrial action and his conduct was in breach of the disputes settlement provisions, well, the evidence seems to be all in one direction.

PN998

MR DIXON: Your Honour, I accept that by not calling Mr McDonald to answer that I'm in no position to counter a finding based on the evidence of the Leighton's witnesses, apart from whether or not they were shaken in any way in cross-examination on that point. I'm not making that submission, I haven't gone to that evidence yet. If there be a finding that Mr McDonald was instrumental in procuring industrial action on the 27th, then I'll be making submissions about that, but possibly by way of mitigation or the like. I was going to come to the Leighton's - - -

PN999

THE VICE PRESIDENT: That's fine.

PN1000

MR DIXON: In terms of the privilege there is the potential for proceedings under 170MN and 178 of the Federal Act that would arise from that very incident, in my submission, so that submission to avoid any Jones v Dunkel type inference.

PN1001

In relation to Jones, it's complicated in one way but it's a similar allegation. Mr Jones' evidence was that Mr McDonald procured certain industrial action in breach of the disputes settlement procedure in the agreement. The complication is this, and this wasn't subject to any evidence directly that I would call on my feet but to my knowledge there is an entity that answers the description of John Hollands respondent to the National Building Construction Industry Award, a breach of the disputes settlement procedure again would give rise to penalties under section 178 of the Federal Act.

PN1002

Ms Scoble reminds me that there is legislation touted which is to have retrospective effect. I'm not suggesting that that might give rise to a privilege but it certainly figures in any consideration as to these matters.

PN1003

THE VICE PRESIDENT: I don't think it's touted, I think it has been passed.

PN1004

MR DIXON: Yes, but whether or not that has (1) retrospective effect and (2) affects - - -

PN1005

THE VICE PRESIDENT: It does have retrospective effect, there's no doubt about that to what, March?

PN1006

MR HOOKER: March.

PN1007

MR DIXON: Whether or not it affects the breaching of state registered agreements, I'm not aware of. Ms Scoble tells me that it does. That might have been a matter that also figured in the decision. It certainly, in my submission, is not required because there is a real potential in terms of the evidence of Jones as well. Again, I'm happy to deal with the evidence of Jones and the evidence of Leighton's on submissions, but if your Honour asks me to particularise, in relation to the evidence that was led, why there would be a fear of incrimination on the part of Mr McDonald, then I think I've answered that in relation to the two of those.

PN1008

Was there any other particular evidence that your Honour wanted me to particularise in relation to that?

PN1009

THE VICE PRESIDENT: No. I was really inviting you to particularise to the extent you wished to and you've done that.

PN1010

MR DIXON: That was the position that I wanted to put in terms of explaining why Mr McDonald didn't give evidence and they're certainly my instructions.

PN1011

If I could just go now to some aspects of the case against. In relation to the evidence of Mr Jones, you heard that he was new to the building and construction industry and he had, including in his witness statement, indicated that on a number of occasions he had accused Mr McDonald of trespassing. Indeed, that was an allegation put in the opening submissions of the applicant - I stand corrected by the transcript, I believe Mr Hooker might have mentioned that in his opening as well.

PN1012

In my submission, he simply got it wrong. Mr McDonald, being a permit holder under the state Act, is entitled to go onto a site which is bound by a state industrial agreement and either hold discussions with employees who are eligible members of the union or are members of the union, if they with to participate in those discussions. The only requirement under the act is that, if the authority is requested then it is to be shown. Indeed in relation to John Holland the industrial agreement is actually in evidence.

PN1013

THE VICE PRESIDENT: It's OEA10.

PN1014

MR DIXON: OEA10, I'm obliged. If your Honour could just turn up the clause 18 which deals with right of entry in that agreement.

PN1015

THE VICE PRESIDENT: Yes, I have that.

PN1016

MR DIXON: This was in fact the agreement between the company and the union. The matters that Mr Jones had put in place, for example, to Mr McDonald, "You must report to the site office and if you do not you're there unlawfully," simply don't figure in what the agreement - - -

PN1017

THE VICE PRESIDENT: There's an obligation to first advise site staff of their presence.

PN1018

MR DIXON: Is your Honour putting to me that that's what - - -

PN1019

THE VICE PRESIDENT: No, that seems to be the only terms of the advice or the information be provided. That's what the agreement says.

PN1020

MR DIXON: Yes.

PN1021

THE VICE PRESIDENT: I'm not suggesting anything more than that. It says:

PN1022

Before exercising the right of entry.

PN1023

They're not required to give any period of notice before exercising the right of entry, provided that the authorised representative first advises site staff of their presence.

PN1024

MR DIXON: Yes, indeed, your Honour.

PN1025

THE VICE PRESIDENT: That seems to be the extent of the obligation, and to show their authority to the occupier of the premises as soon as practicable, if requested.

PN1026

MR DIXON: Once requested, that's correct. There was some evidence from Mr Jones that the regime, if I can put it that way, that was implemented this year had previously not been in place and that there was no requirement on the part of John Hollands that authorised representatives - - -

PN1027

THE VICE PRESIDENT: I don't think his evidence went that far. He wasn't aware of the situation before.

PN1028

MR DIXON: He wasn't aware of it, but certainly there was something put in writing at a time six weeks prior to the incident.

PN1029

THE VICE PRESIDENT: Yes, and further, your point is that Mr McDonald was on leave during the period when the letter would have been received.

PN1030

MR DIXON: Yes, that's correct. Certainly, in terms of the incident that was the subject of the dispute involving the alleged assault by security guards, in my submission this was a genuine concern and Mr McDonald's conduct, of course, has to be seen in the light of what actually happened. There was no dispute over the fact that there was a dispute but the evidence was that Mr McDonald indicated to Mr Jones that he was going to put it in to the Commission and in fact did. In my submission, it's indicative of Mr McDonald's attempt to follow a dispute settlement procedure and utilise the Commission's processes to conciliate and deal with the dispute.

PN1031

THE VICE PRESIDENT: How is the taking of industrial action associated with that consistent with the disputes settlement procedure? That was the subject of the 127 order, wasn't it?

PN1032

MR DIXON: Are you putting to me that the incident on that day was subject to the 127 order?

PN1033

THE VICE PRESIDENT: Wasn't it related to it or am I wrong about that?

PN1034

MR DIXON: The evidence was there was a recommendation issued - - -

PN1035

THE VICE PRESIDENT: Yes, I'm sorry, you're quite right.

PN1036

MR DIXON: That's what I'm talking about.

PN1037

THE VICE PRESIDENT: This was the issue about they were in the sheds for the smoko break, et cetera, yes.

PN1038

MR DIXON: Whether or not it was the lunch hour or not, but certainly the evidence was that Mr McDonald had indicated to Mr Jones that he was going to put this matter with the Commission. It went into the Commission, there was a recommendation made, Mr Jones was cross-examined as to whether or not - - -

PN1039

THE VICE PRESIDENT: He'd extended compliance, yes.

PN1040

MR DIXON: As Mr Jones' letter indicated, he was obviously very officious in relation to that and went to some lengths to investigate and sort the matter out, but in my submission the conduct of Mr McDonald, in initiating the process, must be seen as a positive certainly in relation to that matter.

PN1041

There's also clause 23.5 which has applicability in relation to any alleged industrial action that occurred over that issue. If there was indeed a genuine fear on the part of the employees, some indication that there was, then the agreement contemplates that any genuine fear of harm or injury forms a basis to taking some action.

PN1042

In any event, your Honour, my submission is that Mr McDonald's conduct on that day, accepting that Mr Jones was putting evidence, was that he indicated to him he was going to go to the Commission, steps were taken, it went to the Commission and there was a resolution of the issue. The only other evidence which was to be of some concern in relation to procuring industrial action, Mr Jones retracted. It was subject of any evidence tendered in these proceedings.

PN1043

In relation to Leightons, your Honour, if I could first deal with Mr McDonald's conduct in the Commission. I led some evidence from Ms Scoble and I rely on that evidence to support my submission that it was an aberration on his part and certainly I'll not make any submissions to excuse or mitigate what was said on that day, simply to say that the grounds that Mr McDonald - when exhibiting that conduct, was that he genuinely believed that the position on the part of the Leighton's witnesses had been misrepresented and that a 127 order had issued on false testimony.

PN1044

THE VICE PRESIDENT: On what basis am I to accept that submission? You say that he genuinely believed it. Where is the evidence to support that?

PN1045

MR DIXON: I put it to Mr Ryan that this was the reason why Mr McDonald was saying that. Whether or not your Honour - - -

PN1046

THE VICE PRESIDENT: Mr Ryan giving evidence about a proposition as to whether or not Mr McDonald genuinely believed something?

PN1047

MR DIXON: Mr Ryan gave evidence that Mr McDonald was passionate about certain matters that he was putting. It can only be an inference drawn. My submission is there's no evidence that Mr McDonald's tirade was based on anything other than the reasons that I'm putting.

PN1048

Mr McDonald gave evidence in the section 127 proceedings, OEA3, on 27/7/2005. From pages 27 to 35 it's apparent that Mr McDonald denies that he procured the industrial action, however, what is apparent, your Honour, is that there was a real issue to do with safety, including the number of safety representatives and including the matters that were then subject of a 170LW application. In my submission, there was a genuine issue and indeed it stemmed before the section 127 proceedings. Mr Fenwick, at paragraph numbers 129 to 130 acknowledges that the safety issues had been raised with him a month beforehand so certainly there was an ongoing issue there.

PN1049

In my submission, it's not unusual that there is some action taken in relation to issues that persist, certainly in relation to safety issues. There's no suggestion, as was put in Mr Hooker's opening that this was some sort of ruse or some sort of sham to advance some sort of other claim.

PN1050

THE VICE PRESIDENT: The argument that there was a real issue to deal with safety didn't seem to have persuaded the Commission because they issued the 127 order. Industrial action, an argument about its legitimacy, is an argument that goes to the discretion as to whether or not a 127 order should be issued. The submission you make about whether seems to suggest that there was a real issue to deal with safety. The member heard all the evidence and I think would be in a better position than I am to make an assessment about the extent to which those issues raised some legitimate questions, such that to render the industrial action legitimate. He decided obviously that they didn't, otherwise he wouldn't have issued the order.

PN1051

MR DIXON: I accept that, your Honour. However, in relation to CFMEU6 and 7, being letters of 13 September and 15 September, it was accepted by Mr Ryan that these were the same issues that were alive during the 127 proceedings. Some month and a half later they're still being resolved so in my submission it's genuine in that they were actually being dealt with by the company and continued to be advanced by the union. It wasn't as if once the 127 order happened they simply went away, they seemed to be ongoing. Again, there is evidence that notwithstanding Mr McDonald's conduct on that day, he was instrumental in establishing or maintaining the dialogue with the Leighton's management, Mr Ryan in this case, and resolving the issue. Indeed, that would be pursuant to a disputes settlement procedure, in my submission or as is contemplated by it.

PN1052

Those submissions, while accepting that there was industrial action subject to a 127 order, ,apart from Mr McDonald's denial that he procured it, if the evidence is to be accepted that he played a part in that, then my submission is thereafter he exhibited again behaviour which showed signs of modification of behaviour previously complained of.

PN1053

Again I say in relation to the threat to camp out on the site, that history simply militates against that. There was no evidence apart from the 29th.

PN1054

THE VICE PRESIDENT: The fact he didn't carry out the threat, there was a threat made in essence to punish Leightons for bringing the 127 order. That's the issue. It's not said that he didn't make the threat, there's no suggestion, there's no cross-examination in relation to it. Neither Ms Scoble nor Mr McDonald was called to give an answer to it. What do I make of the fact that he didn't carry out the threat?

PN1055

MR DIXON: That it was a hollow threat. If your Honour accepts that it was made, that it was simply Mr McDonald blowing off steam. It wasn't a real or genuine threat.

PN1056

THE VICE PRESIDENT: It's okay to make threats as long as you don't carry them out.

PN1057

MR DIXON: It would be far worse if the threat was carried out, in my submission.

PN1058

THE VICE PRESIDENT: Yes, I accept that.

PN1059

MR DIXON: If one threatens and doesn't mean it, then in my submission - - -

PN1060

THE VICE PRESIDENT: It's a different thing to say he didn't mean as opposed to he didn't carry it out.

PN1061

MR DIXON: In my submission, history supports the fact that he didn't mean it because he didn't carry it out, whether that's accepted or not. Your Honour, the other evidence led against Mr McDonald is the interlocutory decision of Master Sanderson at tab 8. Mr McDonald was the second defendant in that matter. If your Honour has that, at paragraph 27 - - -

PN1062

THE VICE PRESIDENT: Just bear with me for a moment. What was the exhibit number?

PN1063

MR DIXON: It's exhibit OEA6.

PN1064

THE VICE PRESIDENT: Yes.

PN1065

MR DIXON: At paragraph 27 at the bottom of page 12 there, the Master deals with the second defendant being McDonald. It's apparent from what follows that it's not entirely clear what Mr McDonald did but if you go over to page 13 it says:

PN1066

He does not appear to have used the foul language used by his comrades which was subject to some discussion earlier...(reads)... some measure of control over at least the fourth defendant.

PN1067

That's, in my submission, the balance of the matters that deal with Mr McDonald. Mr McDonald didn't give evidence in those proceedings and of course it was interlocutory and the evidence wasn't tested. Certainly, there's no suggestion that Mr McDonald engaged in any of the offensive behaviour that was complained of.

PN1068

THE VICE PRESIDENT: There's a finding of satisfaction that he was intimately involved in the whole episode and that an injunction ought to be granted against him. You say that's in the context of interlocutory proceedings and he didn't give evidence and it wasn't tested. That's yes, is it?

PN1069

MR DIXON: That's exactly right. That brings me to the decision of Senior Commissioner Gregor which is at tab 9.

PN1070

THE VICE PRESIDENT: I think it's also attached to the agreed facts document.

PN1071

MR DIXON: Yes, it was. Your Honour, what happened on this occasion, Mr McDonald, and it's apparent from the decision, attended the site in question and had a concern about safety. There was an issue about whether or not a concrete pour should go ahead when the sun wasn't up and there doesn't seem to be any adverse finding in relation to Mr McDonald's conduct prior to the sun coming up. However, the issue that Mr McDonald raised that there was inadequate job specification analysis, JSAs, is the subject of some consideration by the Senior Commissioner.

PN1072

The Senior Commissioner ultimately holds that a JSA isn't a legal requirement and that Mr McDonald's insistence on it was simply unsupported by law. As a result of his conduct and his failure to inform the relevant site authorities as to his concerns, was sufficient to warrant a suspension of his permit for three months. If you go to page 17 in the second paragraph there's criticism of Mr McDonald in that he didn't inform Mr McGivron of his concerns. It says:

PN1073

Mr McDonald says he did not answer because of Mr McGivron's tape. One would have thought that that is the very reason why he could have given an answer because the tape would record his genuine concern about a failure to have appropriate JSA that were true.

PN1074

That was the circumstance. There was a person with a tape-recorder and Mr McDonald refusing to speak to him because of that fact, which was known to him.

PN1075

THE VICE PRESIDENT: The findings made in the circumstances are the ones set out in the third paragraph on page 17 where the Senior Commissioner says:

PN1076

It is clear from all of the evidence and I find that the conduct of Mr McDonald and Mr Buchan in stopping work after Mr Tangee said he was available to pump the concrete intentionally and unduly hindered the employer and employees during their working time.

PN1077

Then at the bottom of that page he says he must consider what should follow and he then goes on:

PN1078

The finding that there has been a breach in specific terms there has been an intentional and undue hindrance...(reads)... improper manner in the exercise of a power conferred on them.

PN1079

He makes those findings in the context that you've referred to that's dealt with in the second paragraph on page 17.

PN1080

MR DIXON: That's correct.

PN1081

THE VICE PRESIDENT: He suspends the permit for three months, yes. Was there anything further you wish to say about the decision?

PN1082

MR DIXON: No. I simply wanted to put in context what had occurred and in my submission the gravity wasn't such ass to revoke the permit on that occasion.

PN1083

THE VICE PRESIDENT: That was the conclusion the Senior Commissioner came to as well.

PN1084

MR DIXON: Yes.

PN1085

THE VICE PRESIDENT: He thought revocation would be too harsh a penalty.

PN1086

MR DIXON: Yes. Your Honour, at this stage I had intended to ask your Honour's indulgence in something. I appreciate that what I propose doesn't count as any evidence and probably not to be given any weight, but given the circumstance that I'm acting for the applicant, I have been requested by Mr McDonald whether or not he could make a statement to your Honour from the bar table.

PN1087

THE VICE PRESIDENT: Mr Hooker.

PN1088

MR HOOKER: I oppose that course.

PN1089

THE VICE PRESIDENT: The Tramways case suggests to the extent it's going to be a contested bar table statement, the proceedings aren't criminal in nature where the accused can make such a statement. In the normal course in the Commission, if I'm to attach weight to it, it would be in two circumstances. One is there's an uncontested assertion made from the bar table, well, that doesn't seem likely in this instance or that there's evidence, there's sworn testimony. I've heard what you said about the decision made by the applicant not to call Mr McDonald, but why should, as it were, you get the best of both worlds if you don't call and expose him to cross-examination? He wouldn't be exposed to cross-examination in relation to his statement he wishes to make. The statement is going to be contested. On the state of the authorities I couldn't properly give way to contested bar table statement. In those circumstances, what is the purpose of proceeding in that way?

PN1090

MR DIXON: Again in the context of my earlier submissions as to why Mr McDonald was called, of course these aren't criminal proceedings. There is a practice in some criminal jurisdictions that you can make a dock statement, as your Honour has identified, and they carry with them weight which they're accorded. They're obviously not sworn testimony and are accepted that wouldn't be the case. It's simply an opportunity for your Honour to see and hear the applicant and indeed, I'm not sure what he's going to say, but if he expresses some sort of contrition then that might mean something, although it won't be any submissions that be accorded the status of evidence.

PN1091

THE VICE PRESIDENT: On the basis of the High court authorities regarding, in this Commission, the Commission's ability to accept uncontested bar table statements, there's also the observation, I think, in Barwick CJ's judgment that it would be a mistake to rely on bar table statements which are contested and to treat them as fact.

PN1092

MR DIXON: The nature of these proceedings, in my submission, is that typically when one applies for a permit, 285(a), the application is made to a registrar and the typical position - I'm not sure if this be contested or not - is that a permit is issued. There is obviously provision for a registrar to refer matters to the Commission but in this case, of course, there was an agreed position with the initial revocation that the Office of Employment advocate would be notified.

PN1093

THE VICE PRESIDENT: And intervention would not be opposed.

PN1094

MR DIXON: And intervention would not be opposed. Indeed, the opposition that we have now from Mr Hooker is that of an intervenor, the application being one made by the organisation typically to a registrar. It would allow a person, in my submission, from the registry, for example, to discuss matters that aren't the subject of sworn evidence in support of their applications. What Mr McDonald proposes to do would be nothing different to what happens typically.

PN1095

THE VICE PRESIDENT: Except that Mr McDonald has been given the opportunity to give sworn evidence. You've made a tactical decision not to call him. Had he been called, he would have been able to rely on the privilege against self incrimination and he could have given sworn evidence going to his future intent and the extent of any contrition in relation to past conduct. You have been given that opportunity, you have not been denied the ability to bring it but what you want to do is then allow him to make a statement which I cannot see how I could attribute weight to it when it's not going to be tested. Why would I permit you to do that? On what basis would I attribute weight to it, might be a better way of framing it?

PN1096

MR DIXON: Your Honour made indeed not attribute any weight to it.

PN1097

THE VICE PRESIDENT: No, no, on what basis could I? Leave aside whether I would or wouldn't, that would depend on what's said.

PN1098

MR DIXON: I accept it would be the same weight attributed to an oral application for a permit over the counter of a registry or the same weight as a jury would attribute to a dock statement in a criminal trial, in which case a person is also given the opportunity to give - - -

PN1099

THE VICE PRESIDENT: I'm not sure it is the same weight that a jury can attribute to a dock statement. The authorities suggest in this Commission that contested bar table statements, it would be dangerous to attribute any weight to them or to treat them as facts of what's said.

PN1100

MR DIXON: We're not suggesting the same weight, your Honour. I wasn't putting it any higher than, as I said, what it might be in a situation where someone makes application for a permit at the registry. I've made the application. If I can term it that, and I don't think I can press it any further.

PN1101

THE VICE PRESIDENT: Anything further you wish to say, Mr Hooker?

PN1102

MR HOOKER: I adopt generally what your Honour said, with respect. In summary the difficulties are three or four-fold. Number 1 is, your Honour rightly points out, with respect, that statement is not made on oath or affirmation. It doesn't carry force without reason. There's no opportunity to cross-examine and test the evidence. Secondly, it would be an exercise in utter circumvention of the programming orders and the way in which the proceedings have been run where, almost ironically, my client has made the running rather than Mr McDonald putting an affirmative case to justify to getting a permit back to, at this eleven and a half hour, suggest that there might be some meaningful way of salvaging that by some utterances from the bar table is no more than a self serving exercise, in my respectful submission.

PN1103

The criminal law analogy is unhelpful. Without purporting to be an expert in criminal law, my own practice is pretty much confined to regulatory criminal offences, but dock statement are a dying breed, they certainly don't exist in this jurisdiction in the West Australian jurisdiction and whatever my friend could conceivably wring from that is overridden by the specific authorities to which your Honour refers about this Commission.

PN1104

In light of all of those difficulties (a) there would be no sensible weight could attribute to the statement; (b) it would be unfair to us in light of the background and process of this proceeding and (c) your Honour, with great respect, would run the risk of committing a jurisdiction error if any regard was had to what was said from the bar table.

PN1105

THE VICE PRESIDENT: Mr Dixon, anything further?

PN1106

MR DIXON: Nothing further.

PN1107

THE VICE PRESIDENT: I'm not inclined to grant your application.

PN1108

MR DIXON: Your Honour just in concluding, the mandatory matter that your Honour is to take into account, being the fact that the permit has previously been revoked, I previously said that the relevance of the past conduct is attenuated by the passage of time, in this case, some four years and there's been no evidence, of course, that Mr McDonald has unlawfully entered any federal sites in these proceedings which in my submission - - -

PN1109

THE VICE PRESIDENT: You mention sites on a number of occasions. You mention in relation to the state Act that they were sites governed by state instruments. I don't think the test is that high, is it?

PN1110

MR DIXON: A premises.

PN1111

THE VICE PRESIDENT: Yes, but under the state Act, would you be able to enter premises in circumstances for example where the whole site need not be covered by a state instrument, but there is a subcontractor working on the site that has a state agreement.

PN1112

MR DIXON: Yes.

PN1113

THE VICE PRESIDENT: Okay. It's not necessary that the head contractor be the subject or be a party to a state industrial instrument. It's sufficient that there is work being carried out on the site pursuant to a state industrial instrument?

PN1114

MR DIXON: That's correct. There's a decision of Molina v Zaknich of the Western Australian Court of Appeal. I will get for your Honour the Media Neutral citation. It was prior to the August 2002 amendments, but basically that decision held that the occupier of a site that isn't bound by a state award or a state industrial agreement cannot as it were oppose or obstruct any lawful exercise of a right of entry and that the premises is defined as where work is being performed.

PN1115

THE VICE PRESIDENT: Yes. Perhaps if you can also provide the reference to Tracey's case that you were referring to earlier as well.

PN1116

MR DIXON: Yes, I will do that, your Honour.

PN1117

THE VICE PRESIDENT: Just in relation to the past or the initial revocation, you said that the fact that there had been an agreed position in respect of the facts was indicative of an amount of contrition on behalf of Mr McDonald. I am not clear why that would necessarily follow. It may also be indicative of the fact that the conduct was - it wasn't contested that the conduct took place.

PN1118

MR DIXON: Yes, I cannot cavil with that, your Honour. That's equally open. It was simply my submission that where there is some assistance with the authorities, one can infer that there is - or that that in itself is a mitigating circumstance in consideration of the conduct overall.

PN1119

THE VICE PRESIDENT: Okay.

PN1120

MR DIXON: Your Honour, in my submission the fact that in the four years since, there has been no evidence of any unlawful entry onto federal premises, that Mr McDonald has notwithstanding a state regime which - the cognate state regime which also allows the permits to be revoked, that that has not happened and it's happened only in the sense of a suspension for a period of three months once in that period of time, all militates towards the conclusion that Mr McDonald's behaviour has indeed modified from the previous occasion when his permit was revoked and this is all in the context of a state Act which is largely unregulated vis a vis the federal counterpart in the manner that I've previously taken your Honour to and also in a situation where Mr McDonald holds a position of organiser and assistant secretary of a large union and Ms Scoble's evidence is that Mr McDonald attends a number of sites each day and plays a critical role in negotiating agreements and dealing with industrial disputes, so one would infer from that that there is a large amount of scrutiny on Mr McDonald's behaviour and he would otherwise be subject to a number of applications certainly in the state Commission if his conduct were improper or inappropriate in terms of section 49J(5).

PN1121

The fact that you've heard evidence today and yesterday from Leighton's and John Holland also has to be looked at in light of the fact that these are companies that have different goals and different aims to those of the union, the union applicant and that quite often disputes arise and there would be a motivation certainly on the part of those companies to - certainly not to support any application by
Mr McDonald which in my submission simply reflects his effectiveness as a union organiser.

PN1122

The evidence of Ms Scoble is that the applicant requires Mr McDonald for various reasons including certain unique abilities that arise in his case, including his experience, his skills and his personality and again this is in the context where the union movement as a whole will face a new regime in the coming years, so he's a required person, certainly now and that's again in the evidence of Ms Scoble.

PN1123

Your Honour can take some fortitude from the fact that there are mechanisms in place to closely scrutinise the conduct of Mr McDonald. The task force appointed under the federal Act and the equivalent under the cognate state legislation are there to ensure that the conduct of the type previously in place is not repeated and if as Mr Hooker suggests that there has been no modification of Mr McDonald's behaviour, one would imagine that he wouldn't hold his federal permit for very long, indeed.

PN1124

My submission is that it should be patently obvious to anyone, including a person in the position of Mr McDonald that these mechanisms are in place, that observance must be had, otherwise the permit will be lost. Your Honour, unless there's anything else I can assist with and subject to the matters that are put in reply, I simply leave it by saying that Mr McDonald is a critical part of the organisation, that because of Ms Scoble's evidence that the federal union now intends to or expects to negotiate far more certified agreements or more certified agreements than they had before, the ability of Mr McDonald to go onto sites and to consolidate the support of members and persons eligible to be members is indeed essential. I think it was Brecht who said that unhappy the land where heroes are needed, but certainly that is the case on the part of the applicant. They are the submissions, your Honour.

PN1125

THE VICE PRESIDENT: Thank you, Mr Dixon. Yes, Mr Hooker.

PN1126

MR HOOKER: May it please the Commission. May I start with some matters of a general or conceptual or doctrinal nature before moving more specifically to our submissions about the evidence and we say it shows or in many cases doesn't show. The first point we make is one which interrelates with the point developed in any detail by my friend certainly put up front in their written submissions. It's our submission that there is nothing for the Office of the Employment Advocate to "prove" in these proceedings.

PN1127

Self evidently it is for the applicant and in a practical sense Mr McDonald himself to satisfy the Commission in taking into account all considerations that are relevant that a permit ought be issued. Self evidently in a practical sense in light of the background and the history that I have point to there have to be real concerns as to the contrition the motivation and the likelihood of reform on
Mr McDonalds part that warrant a fresh permit being granted.

PN1128

THE VICE PRESIDENT: In relation to the Briginshaw matter to the extent that you urge me to make findings as to certain matters whether those findings are, for example, that Mr McDonald procured industrial action on a particular occasion.

PN1129

MR HOOKER: Yes.

PN1130

THE VICE PRESIDENT: Leave aside the proposition that you don’t have to prove that or however one want to put it.

PN1131

MR HOOKER: Yes.

PN1132

THE VICE PRESIDENT: If I was to make a finding of that nature or in order to make a finding of that nature the proposition that's put against you is that it would be on the balance of probabilities but the sufficiency of the evidence ought to reflect the seriousness of the finding.

PN1133

MR HOOKER: Yes.

PN1134

THE VICE PRESIDENT: Do you take issue with any of that?

PN1135

MR HOOKER: I don’t - well, can I say two things about that, your Honour. I don’t take issue with the fact that what's Briginshaw says, it is not a particularly easy concept.

PN1136

THE VICE PRESIDENT: No it's not.

PN1137

MR HOOKER: In our submission, it's not easy in any given case to say, well on the one hand I am looking at balance of probabilities, it’s the civil standard, but there's this idea of sufficiency or quality of evidence. And in several of the situations that I will point to it will be our submission that the sense or the proper inference to be drawn on a comfortable balance of probabilities is that certain findings ought to be made. The second point in response to your Honour's question is that we don’t concede that a finding, a proposed finding of procuring unlawful industrial action puts one into Briginshaw territory.

PN1138

Certainly if ones asserting a breach of the criminal law, it would be hard to dispute that that's the case but where the assertion is firmly within the civil realm and has industrial consequences within the parameters of these proceedings conceivably interrelating with points my friend was making in a different context, it might have other civil consequences down the track, it's far from clear in our submission that that firmly puts one into Briginshaw territory. Now, it may be that at the end this is all an interesting and difficult conceptual point because I get back to my first issue, we say, it's a relatively simply process of the drawing of an inference for your Honour for the most part. Then even if we are wrong about that we rely on the accumulative effect of the evidence we rely on and the absence of a sufficient or proper series of explanations by Mr McDonald.

PN1139

THE VICE PRESIDENT: All right.

PN1140

MR HOOKER: Can I acknowledge that context is import in industrial relations and particular industries in this sense. The submission of the employment advocate isn’t so naďve to assume that in the building and construction industries everyone is going to behave in a lily white manner all the time and that there is going to be no lapsing into language that one wouldn’t readily repeat elsewhere. But there are lines and limits that can and must be drawn in my respectful submission and when language is not merely abusive of the worst kind but has another character about it where it's open to infer and should be inferred that it is used in a way designed to intimidate, used in a way that can't possibly foster cooperative workplace relations or otherwise simply isn’t in the public interest for that kind of language to be used in that particular situation, then it is something more than just the ordinary rough and tumble that one could reasonably expect in the building and constructing industry. It is obviously going to be a question of fact and degree but there several aspects of the evidence before your Honour, in our submission, that clearly do cross that line.

PN1141

I touched on the issue of cooperative workplace relations and we do rely on that as an issue of importance primarily because it's the pre-eminent express objective in the Commonwealth Workplace Relations Act. Now, your Honour, did point out during the course of my opening yesterday that we put the issue in a slightly different way in our submissions. Your Honour drew my attention to paragraph 9(b), can I say, your Honour, we don’t mean anything new there over and above the point we have already put by way of a relevant factor, a relevant consideration and merging from section 3 of the Act and otherwise the importance of a purpose in interpretation of the legislation.

PN1142

I suppose the intent there in paragraph 9(b) was to emphasis this idea of relations has having a slightly different view odds than cooperation. Perhaps the distinction doesn’t have any material difference in the circumstances of this case but where there is particular conduct which not only will not foster cooperate workplace relations but seems clearly designed to be detrimental to that purpose or destructive of that purpose then we submit it must become a relevant consideration. And with great respect it would become incumbent upon your Honour to recognise that and give it some weight in the exercise of administrative discretion.

PN1143

Your Honour, also raised with me the point we make at paragraph 12 of our outline. I don’t advance that any further. I accept the force of what your Honour puts to me. We don’t develop that in light of the point your Honour makes quite correctly with respect to Australian Broadcasting Tribunal and bond. A couple of short matters arising from my learned friend's outline, although he didn’t develop this morning, but I do not need to comment on, at paragraph 41 it's said in a very generalised that Australia is a signatory to certain treaties and international agreements which recognise rights to organise and to strike. Of course the orthodox position still remains in this country that absent any express domestic enactment of those obligations it's not permissible to have regard to those in some generalised way in the statutory construction of process. There is a line of - - -

PN1144

THE VICE PRESIDENT: What about the objects of the Act, though?

PN1145

MR HOOKER: I am sorry?

PN1146

THE VICE PRESIDENT: The objects of the Workplace Relations Act.

PN1147

MR HOOKER: Yes.

PN1148

THE VICE PRESIDENT: 3(k) for example?

PN1149

MR HOOKER: Yes. Well that's right and that's something that is plainly explicit to the extent that anything sort to be developed from that in terms of how one, even though it's an objective to assist, not actually give effect, assist in giving effect to those obligations. The question then becomes, what does that mean for any given fact finding exercise as to whether there seems on the face of it to have been unlawful industrial action or procuring of that. There needs to be, we submit, a clear and compelling chain of statutory construction based on that objective to get away from what the fact finding process would otherwise get one to.

PN1150

And the primary point I make, is above and beyond what section 3 expressly provides. There is no generalised principle that simply the enactment of or creation of an international obligation has of itself in effect in domestic law. The point at paragraph 42 my friend didn’t develop but it's important that I say this, there is no legitimate connection in our submission between what Justice Munro spoke about in that particular sense in Daniels v Patti. The circumstances are different. There has been no serious evidentiary challenge to the way in way this intervention has been undertaken and to the extent, your Honour, entertains that all, in my submission, it should be expressly found to the contrary given the nature of the allegation.

PN1151

THE VICE PRESIDENT: It’s the Daniel and Patti observations. Exhibit CFMEU1. They were observations about the investigation conducted by the OEA in those proceedings.

PN1152

MR HOOKER: I wonder if my friend could, I don’t want to make a huge deal of it, but I wonder if my friend could get instructions on whether that's put because it's of some significance for obvious reasons to my client, as to whether it's actually on the tape.

PN1153

THE VICE PRESIDENT: Well the proposition that's put, at least in the submission, is that there is no evidence in these proceedings that the OEA has investigated any of the allegations pursuant to its statutory powers, whatever they may be.

PN1154

MR HOOKER: Yes.

PN1155

THE VICE PRESIDENT: So the allegations, for example, procuring of industrial action, failure to follow dispute settlement procedures, unlawful entry on the premises, the proposition that seems to be put in the written submission is that the OEA has not investigated those allegations.

PN1156

MR HOOKER: Yes, but by tying to Daniels v Patti it's got a negative implication that goes beyond that in light of some of the strident remarks Justice Munro made in Daniels v Patti.

PN1157

THE VICE PRESIDENT: Well, he was critical of the investigation that was conducted.

PN1158

MR HOOKER: Yes.

PN1159

THE VICE PRESIDENT: Well, I couldn’t make any finding critical of the OEA as to the investigation it has conducted because there is no material before me about whether an investigation took place on its nature.

PN1160

MR HOOKER: No.

PN1161

THE VICE PRESIDENT: I don’t the contrary is urged on me by the CFMEU. But that's something you can deal with in your reply, Mr Dixon.

PN1162

MR DIXON: Yes.

PN1163

MR HOOKER: Can I inform your Honour about some matters that aren’t pressed. I have taken some instructions in light of issues your Honour raised during the course of my opening yesterday and the schedule we point before your Honour is consistent with what I'm about to say. We don’t press anything arising from the orders and the associated transcript in the Barclay Mowlem proceedings so that’s the materials at tabs - - -

PN1164

THE VICE PRESIDENT: What were the exhibit numbers?

PN1165

MR HOOKER: OE8.

PN1166

THE VICE PRESIDENT: OEA7, OEA8.

PN1167

MR HOOKER: I am working off tabs.

PN1168

THE VICE PRESIDENT: What were tabs 11 and 12.

PN1169

MR HOOKER: That's right and tab 6. Now I don’t address - - -

PN1170

THE VICE PRESIDENT: OEA4. So you're not seeking to rely or draw any findings or inferences from exhibits OEA4, 7 and 8?

PN1171

MR HOOKER: Correct.

PN1172

THE VICE PRESIDENT: Okay. That will cut down on my reading.

PN1173

MR HOOKER: 4 from what's at tab 7.

PN1174

THE VICE PRESIDENT: Which is OEA5.

PN1175

MR HOOKER: Yes.

PN1176

THE VICE PRESIDENT: All right. So I take it from all of that that the material there is not relied on for any purpose that is relevant to the matter before me?

PN1177

MR HOOKER: Yes.

PN1178

THE VICE PRESIDENT: So I don’t need to trouble myself by going through all that material?

PN1179

MR HOOKER: Yes.

PN1180

THE VICE PRESIDENT: Okay. Well, lets progress Mr Hooker, anything else that you - - -

PN1181

MR HOOKER: That's as much as I can say, your Honour. We do still rely on the conclusions reached by the Coal Royal Commission which are at tab 10.

PN1182

THE VICE PRESIDENT: Yes, I have not admitted that into evidence.

PN1183

MR HOOKER: I see.

PN1184

THE VICE PRESIDENT: On the basis, you will recall, the objection taken to it was that there were observations made in respect to Mr McDonald and you weren’t able to assist me as to whether those matters were put to Mr McDonald when he gave evidence to the Royal Commission

PN1185

MR HOOKER: Yes.

PN1186

THE VICE PRESIDENT: And on that basis it didn’t seem appropriate to rely on it so I didn’t admit it.

PN1187

MR HOOKER: I can say this, your Honour, and look, it was one thing I just didn’t get to check up myself last night regrettably but the various references commencing at 147 and following of the extract have a series of foot notes which, so I am instructed, reference how the topic was dealt with during the course of evidence and I am instructed that there is a - - -

PN1188

THE VICE PRESIDENT: Well, I don’t have the foot notes.

PN1189

MR HOOKER: No.

PN1190

THE VICE PRESIDENT: And I don’t have an answer as to whether or not the questions were put to him.

PN1191

MR HOOKER: No, and I don’t pretend there is. I was going to suggest getting a note or supplementary material to your Honour providing that additional body of material given that we are going to filing written submissions on the question of the conviction and the transcript of the petty sessional evidence. It is capable of carrying some weight in my respectful submission the - - -

PN1192

THE VICE PRESIDENT: But is it worth the extent of the forensic examination in as much as to ascribe any weight to it, I need to make an inquiry in a reasonably detailed way into the circumstances in which it arose, the Royal Commission, the nature of it, the extent to which what onus applied and I just wonder in the scheme of things whether all of that is going to be very productive at this late stage.

PN1193

MR HOOKER: It's not necessarily as onerous an exercise in our submission as your Honour might indicate.

PN1194

THE VICE PRESIDENT: Well, Mr Dixon has already foreshadowed that the nature of royal commissions, he has already put that in issue and he's made reference to cases in which observations have been made about the weight one should attribute to, so I imagine we are going to have a pretty large exercise in relation to what an extract from a report that doesn’t have a context.

PN1195

MR HOOKER: Well, the context in my submissions - - -

PN1196

THE VICE PRESIDENT: Well, in circumstances where I put you on notice as to the issue and it has not been addressed, the evidentiary case has been closed save for one issue

PN1197

MR HOOKER: I can't contest that, your Honour, that’s right.

PN1198

THE VICE PRESIDENT: In those circumstances I accept that the issue in relation to the assault matter is open.

PN1199

MR HOOKER: Yes.

PN1200

THE VICE PRESIDENT: In relation to the transcripts of the proceedings before the Magistrate, the certificate and what challenge may be made to any reliance on that but the evidentiary case was closed.

PN1201

MR HOOKER: Your Honour is right, you put us on notice. It was one thing we didn't get to in all the circumstances.

PN1202

THE VICE PRESIDENT: Okay.

PN1203

MR HOOKER: I won't press it.

PN1204

THE VICE PRESIDENT: All right.

PN1205

MR HOOKER: Can I come to some aspects of the evidence on which we do rely in these proceedings? I have got a couple of preliminary submissions as to legal principles that are relevant to the factual findings for which we contend. At several points in our schedule that we have handed up today we submit that there ought to be findings that industrial action occurred that was unlawful and the submission on this is a simple one. We say, if labour has been withdrawn, if the employees are not doing what they are paid to do, that is prima facie unlawful because it's a breach of contract on the face of it and if it's been procured by a third party, most obviously a union official, that's on the face of it tortious and unlawful itself.

PN1206

THE VICE PRESIDENT: Yes, an intention to interfere with contractual relations.

PN1207

MR HOOKER: Possibly all of those as well, yes. And the very presumption implicit in provisions like 170MN and 170WC it is that there is a potential immunity conferred for something that would otherwise be on its face, unlawful. I know Mr Jones in his evidence at various points referred to illegal industrial action. We don’t put it as high as that and we don’t need to put it as high as that in my submission. And I think in your Honour's own interlocutory decision of a couple of years ago, your Honour identified unlawfulness of industrial action where there'd been an involvement or a connection by the person seeking a permit as being the relevant consideration.

PN1208

So the legal analysis doesn’t need to be any more complex or subtle than that, in my respectful submission, where it's clear on the face of the evidence that labour has been withdrawn and it's either directly supported by the evidence or the inference is open that Mr McDonald has had an involvement in that or actually procured that, then it follows in the absence of anything being put to the contrary, we submit, that the industrial action is unlawful. For that reason alone that sort of evidence in that character, and the schedule provides various examples, the evidence of that character is not only relevant but worthy of substantial weight.

PN1209

My learned friend put some submissions as to the nature of the right of entry entitlements arising under the state legislation. Now, it's accepted that there are aspects of section 49(h) and 49(i) which are more beneficial to a person holding an authorisation. That would be the case in an analogous situation under the federal Act. But what is important and what the submissions of the applicant don't recognise is that that threshold requirement of purpose is always presents and just with any authorisation or entitlement that is conditioned on a particular purpose if there is an issue or inquiry as to the lawfulness of what has happened the presence of that purpose remains pre-eminent.

PN1210

It remains the subject of necessary inquiry and in several of the examples of the John Holland evidence through the mouth of Mr Jones, the only sensible inference that can be drawn, in my respectful submission, was that Mr McDonald entered on the premises with no particular purpose or certainly no purpose than can be confined to something as specific as what 49(h) or 49(i) spoke about. This is where we get into the potentially difficult or subtle factual issue as to the distinction between a discussion and a meeting and accepting that there is some more in discussion of principle on that that the ultimate factual inquiry, we submit, will often be a simple one. And Mr Ryan put it as, as crystally as perhaps anyone put in his evidence this morning, if there is a mass meeting and as a consequence of that, the labour is withdrawn it's a pretty clear indication that there was this more benign intent of undertaking that discussion in the first place.

PN1211

The intent of the entry in the first place was to have a meeting where one wants to get away from that confusing labelling. There was an intention to enter the workplace to initiate some industrial action, more than likely, unlawful industrial action. So both with respect to the entry on to the Leighton's premises, the subject of the evidence of those gentlemen and three examples arising from the Jones evidence, we say that the proper inference to be drawn. And that despite the beneficial nature of the 49(h) and 49(i) provisions that doesn’t preclude the fact that if the evidence shows some relatively random or directionless entry whereupon being asked Mr McDonald doesn’t state a particular reason.

PN1212

He says, for example with respect to the first entry claimed of at the John Holland site that he didn’t know yet whether it was a state or a federal matter and where that is not challenged, your Honour, the only sensible inference to be drawn is that Mr McDonald hasn’t directed his mind as to why he is there. Perhaps he is there for some broad industrial relations benefit. Perhaps he is just there to stir up a little bit but the evidence doesn’t demonstrate in the specific Leighton's example and three of the John Holland examples that there is anything more specific than that.

PN1213

And where Mr McDonald has chosen not to contest that evidence and put his own evidence on oath and say, well, yes, I did go on to the site on that day at that time and I did it for this reason, there is no factual issue to be tried in contravention of what emerges from Mr Jones and the two Leighton's employees. Now, of course, my friend relies on over and above 49(h) and 49(i) clause 18 of the industrial agreement certified in the WA Industrial Relations Commission. But as emerged in part although that’s more beneficially expressed even than 49(h) and 49(i) in terms of what the purpose might be, there is that plain express requirement about what must happen before hand, that is the authorised representative first advises staff of their presence.

PN1214

And in several of the John Holland examples, in our submission that patently wasn’t the case, where Mr Jones was simply informed that Mr McDonald perhaps with a colleague was on site and had to go and seek him out and make his own inquiries - - -

PN1215

THE VICE PRESIDENT: It's a federal agreement, isn’t it? It's a state agreement?

PN1216

MR HOOKER: The John Holland one is a state one, your Honour, yes, a section 41 industrial agreement.

PN1217

THE VICE PRESIDENT: And the interaction with the state is that the provisions in a state act are subject to what might appear in an agreement or an award, is that the way one reads the right of entry?

PN1218

MR DIXON: They have no effect. In fact if they are over and above anything provided for in codified division 2(g) I think its section - - -

PN1219

THE VICE PRESIDENT: Do you mean in terms of restrictions? I thought the notice provision you could provide notice in an award or an agreement.

PN1220

MR HOOKER: Exactly, yes

PN1221

MR DIXON: Apart from that any other provisions that are over and above or below what are provided for in the - - -

PN1222

THE VICE PRESIDENT: Can you take me to the section?

PN1223

MR DIXON: I think I just don’t have my act here. 49(n)

PN1224

THE VICE PRESIDENT: 40?

PN1225

MR DIXON: 49(n)

PN1226

THE VICE PRESIDENT: 41(n)?

PN1227

MR DIXON: 49(n).

PN1228

THE VICE PRESIDENT: 49(n). I see, okay, thank you.

PN1229

MR HOOKER: Well, if that's the case, clause 18, doesn’t help the applicant over and above anything they get from 49(h) and 49(i), unless I am misunderstanding my friend's submission.

PN1230

THE VICE PRESIDENT: Well I don’t think it's said that it does assist. It was referred to in the context that there was no obligation in either the Act or the agreement to provide 24 hours notice before attending on site or any notice.

PN1231

MR HOOKER: Yes, and we're not relying on that for any of our assertions as to unlawful entry.

PN1232

THE VICE PRESIDENT: Yes.

PN1233

MR HOOKER: So there is no dispute about that. We say, if there is no cogent evidence at all of actual purpose then the correct finding for your Honour to draw on and there is no Briginshaw problem with a factual finding of this nature, is that the preconditions to either 49(h) or 49(i) have not been met. Therefore given the uncontested nature of the evidence it is an unlawful entry and becomes relevant.

PN1234

THE VICE PRESIDENT: And you say a finding as to an unlawful entry doesn’t attract a Briginshaw standard? It's finding as to trespass, isn’t it?

PN1235

MR HOOKER: Well, that’s right.

PN1236

THE VICE PRESIDENT: Trespass is still a criminal offence, isn’t it?

PN1237

MR HOOKER: It can be. It can be. Look I don’t concede that, your Honour, and it's not necessary, in my submission, to delve in the subtleties of what particular factual findings might get one into Briginshaw or not because we say, even if your Honour says, all right beneficially to the applicant I'll apply Briginshaw, I'll look for some clear evidence, am I satisfied on the balance of probabilities that this was an unlawful entry. We say, the answer to that is, yes, because the evidence is clear as to absence of requisite purpose, that's the submission.

PN1238

THE VICE PRESIDENT: Okay.

PN1239

MR HOOKER: So, that the case we submit for the entries of 28 June, 14 July and 10 August. 28 June was the situation that I touched on before where there was that exchange at paragraph 10 and following Mr Jones wanted to know why Mr McDonald was there and whether it was a state or federal matter so no evidence suggestive of purpose covered by 49(h) or 49(i) in that respect. On
14 July, again what Mr McDonald said on Mr Jones' evidence which we submit should be accepted, Mr Jones said to Mr McDonald, are you here on a state or federal matter, he said, state as the EBA was state and it was in relation to a pay matter and there was then a discussion about whether there would be sick pay for the previous Friday, which is a separate topic I will come to in a minute.

PN1240

Now, the best that could be put in my submission is that that’s a 49(i) situation in terms of investigating some arguable breach of an EBA. If it could be inferred that it was there from investigative purpose, there might be an argument, but it's only suggestive, in my submission, of advancing a claim. That is, arguing the toss about whether there would be payment for the supposed sick day taken on Friday. I don’t pretend the evidence is particularly fulsome of the point but in terms of what's before your Honour, the best conclusion on the balance of probabilities is that Mr McDonald hadn’t directed his mind and hadn’t expressed, hadn’t given any objective substance to a purpose that gets him home under 49(h) or 49(i).

PN1241

And then it's even clearer in my submission concerning the entry on 10 August. There is nothing on Mr Jones' evidence that was said by Mr McDonald as to why he was there. Sometime after the entry there was a request to fix the gate because it was not easy for to get to and posed, he said, an occupational health risk. It can't be rationally inferred giving the sequence of the evidence that that was in his mind at that time of the entry and the fact that the conversation then continued with what Mr Jones said about a performance behavioural issue and
Mr McDonald making the comment, I sing and you dance, supports the inference, I submit, that he was simply there to exert some generalised industrial pressure and in that case of justification doesn’t arise.

PN1242

Now, regarding the 29 June entry, we certainly don’t concede that there was a clear enough purpose of justification there. The argument I apprehend would be put against us is that in light of the security guard assault there was a perceived occupational health matter to investigate. Without conceding that, assuming favourably to the applicant that there was unlawful entry, it states the obvious of course to recognise that even if the entry is lawful there are still ways a permit holder might conduct himself that can be improper or contrary to the proper purposes of the legislation or otherwise relevant.

PN1243

And as really did emerge during my friend, Mr Dixon's submissions, it can't rationally be said that the dispute resolution procedure, the specific one in clause 23 was met in that circumstance. Yes, there was some attempt to discuss the issue but it certainly wasn’t the incremental step by step process that is required by clause 23 and it's plain that on the totality of the evidence about that day's events that Mr McDonald played a role in procuring the workers staying in the smoko sheds until the issue was resolved. And then it is clear and unchallenged from
Mr Jones' evidence that into the next day, as at 9.30 am on the next day, the strike was still in place.

PN1244

So not only is it a course of conduct that has breached the dispute resolution procedure in clause 23, it's a procuring, in our submission, of unlawful industrial action. Now if there is a competing argument that might be put about its unlawfulness, I can accept that’s open to Mr Dixon to develop, but again it hasn’t been the subject of direct challenge given the course that's been adopted by
Mr McDonald. We say generally and this is reflected in our schedule, your Honour, that what characterises each of those entries is that there is never any serious or sensible attempt to comply with any dispute settlement procedure and that characterises all of the evidence on which we rely, as to Mr Jones and the evidence of the Leighton's gentlemen.

PN1245

The evidence about that, if I can take a liberty and call it the blue flu issue, on
7 July 2005 is also important and we do rely on that. We say that is a procuring of unlawful industrial action. It's plain on the evidence that the employees didn’t work on that particular day, the Friday, it's open to infer that that was procured or influenced by Mr McDonald. The argument, as I understand it, that's put against us, is that is rendered lawful or not unlawful because of clause 10.2 of the certificate agreement and we deny that. In our submission what clause 10.2 speaks to is something entirely different to what the evidence discloses happened on that day.

PN1246

10.2 envisages this exercise of personal discretion of an employee to use sick leave for a personal reason and it speaks entirely of what the employee himself or herself can do if the choice is made. In 10.2 there is no obligation on the employee to account for the absence. There are some requirements of notification. It can't rationally be said, in my submission, where you've got a stop work meeting and as a consequence of that, there is a mass walk out, that there has been this accumulation of individual decisions to exercise that discretion under 10.2. The sensible inference, in my submission, is that's something quite different. It’s a decision to procure unlawful industrial action for broader industrial purposes and then clothe it with this 10.2 type argument or label it blue flu or whatever.

PN1247

But if there is going to be a serious reliance on 10.2 there needed to be some cogent evidence in my submission that employees adverted to it at the time and happened to all make that decision on that day. Rather than the other obvious inference, that is, Mr McDonald persuaded them to go out and they went out. Can I briefly deal with the Supreme Court injunction point, your Honour, before I come back to the Leighton's evidence? I don’t pretend it's a substantial part of our case but it's significant none the less. I accept that the fact that it's a finding made at interlocutory level it has to be taken into account.

PN1248

What I dispute with respect is that the fact that Mr McDonald chose not to give any evidence in those proceedings, is worth of any weight. That's always going to be, unless there is an explanation to the contrary, it’s a bit Jones and Dunkel issue if you like.

PN1249

THE VICE PRESIDENT: So they weren’t ex parte proceedings is your point.

PN1250

MR HOOKER: That's right.

PN1251

THE VICE PRESIDENT: He chose not to give evidence and it was open to him to do.

PN1252

MR HOOKER: That's right. It's clear from Master Sandersons' decision that there was full argument on affidavit evidence by both parties. So it is worthy of weight, in my submission, that a master of the Supreme Court of this state exercising his jurisdiction to grant injunctive relief has made the finding that he did at paragraph 27. It's not detailed and its not fulsome but nor does it need to be, in my submission, for it still to be worthy of weight and its illustrative, I submit, of an inference your Honour could draw about Mr McDonald's involvement generally in proceedings on work sites that by his mere presence there may often be the capacity to restrain behaviour but he may chose not to exercise that capacity.

PN1253

Your Honour can infer that, in my submission, from the totality of the evidence for a couple of reasons. Number one, the history of Mr McDonald's conduct giving rise to the earlier revocation. Secondly, the fact that he has overtly made the statements he has made, which we rely on and which I am coming to in some more detail shortly, in his own journal and to the press. It's capable of the inference, in my submission, that he projects himself as a senior and leading and influential figure of his organisation. And thirdly, the proposition that Mr Dixon relies on that there seems to be, so it's said and we don’t concede this, but at least Ms Scoble seeks to assert from her own evidence, that it is important for the overall purposes of the union that Mr McDonald have a permit and seemingly so the argument goes that the wheels of the Federal Union may stop turning to some degree if Mr McDonald doesn’t have a right of entry permit.

PN1254

Whether that gets Mr McDonald anywhere in the final analysis is another question which I will come to but for that submission to be made at all reinforces the point I am making. I submit that this gentleman exercises considerable control in this union's activities. That reinforces, I submit, the finding Master Sanderson made.

PN1255

Can I come back to the Leighton's evidence, your Honour, and what we contend for is summarised at paragraph 1 to 7 of our schedule and I don’t know that I need to go through all of them chapter and verse. We do submit it's a proper and appropriate inference even assuming at Briginshaw standard which we don’t concede that the applicant was instrument in procuring that industrial action on the 27 July. And given that, given that the not seriously contested finding that the industrial action did occur, it's open to infer that when the meeting was held on the morning of 27 July, it wasn’t for a purpose justified by section 285B.

PN1256

Now, this obviously gets us into gets us into the murky area between a discussion and a meeting but given what seems to be the preconceived design of
Mr McDonald and his colleagues to hold the meeting and persuade the men to go out that the proper inference to draw, in my submission, is that this wasn’t discussion territory this was stop work mass meeting territory.

PN1257

THE VICE PRESIDENT: I don’t understand the reference to 285B and C. It's not suggested that he was exercising any federal right because he doesn’t have a federal permit.

PN1258

MR HOOKER: Yes. No, well that obvious.

PN1259

THE VICE PRESIDENT: Are you really saying that he wasn’t exercising any proper power under his state right of entry?

PN1260

MR HOOKER: That's right.

PN1261

THE VICE PRESIDENT: Because he didn’t invoke a particular purpose.

PN1262

MR HOOKER: That’s right. That right. Probably a consequence of drawing the document at about 11.30 last night, your Honour,

PN1263

THE VICE PRESIDENT: I am sure that's right.

PN1264

MR HOOKER: Yes, I was giving - that's giving Mr McDonald a bit more credit than I need to. The short point is whatever the justification that my friend might rely on, we say, is absent because the proper factual inference to draw is that there was no purpose to have a discussion or no investigative purpose. Again, plain that there was no regard to dispute resolution procedures in resolving the issues, that was the subject of some cross-examination by my friend this morning and
Mr Ryan was categorical about that. That what the company perceived to be the absence of any compliance with that procedure was instrument in them coming to this Commission and your Honour would not hesitation in accepting that, in my submission.

PN1265

That takes us to some degree to what was put to Mr Ryan in re-examination, and in our submission with great respect to my friend, that is a very late, 11 and three quarter hour attempt to try and salvage something out of what was a very serious and significant chain of events as far as Mr McDonald was concerned. For it to be said in letters sent on the 13 September that this inference should be drawn that Mr McDonald is all about a conciliatory approach to industrial relations and it's evocative of a new motivation, in my submission, is weak evidence that lacks any cogency whatsoever.

PN1266

If a serious case was being mounted that that sort of conduct now characterised what Mr McDonald was about there would be fulsome evidence before your Honour for that purpose. The 13 September several days ago is way too late in the piece for your Honour to draw any comfort from evidence of that kind in
Mr McDonald's favour. Mr Ryan put it eloquently and spontaneously in his cross-examination when he acknowledged the letters were sent but it was the first time he had received a letter from Mr McDonald.

PN1267

Now with respect to the industrial on 29 July 2005, I have to acknowledge that our evidence there is not as strong because it was only Mr Mullan who gave evidence about that and he acknowledge he hadn’t seen Mr McDonald on site on that day. So I accept that. But in light of what we say is the correct finding about his role on the 27 July and the statements he made before during and after the Commission proceedings on the 27th, I submit, it can still be comfortably inferred on the balance of probabilities, even on a Briginshaw standard if your Honour is minded to go down that path, that Mr McDonald was instrument in procuring that further unlawful industrial action.

PN1268

Indeed it sits entirely consistently with what he said to Mr Ryan and Mr Mullan by having the site out for a week if the 127 application got up. The evidence doesn’t disclose it was as long as that but it discloses that industrial action certainly was taken after and despite the section 127 order being granted. Now, with respect to the particular statements that we summarise at paragraphs 5, 6 and 7, what your Honour shouldn’t do, in my respective submission, is downgrade or underplay their significance on some basis that on the evidence it was a one off occasion or he was simply letting off steam or this was a serious industrial matter and his emotions or feelings got the better of him.

PN1269

This interrelates with the point I made a little while ago, your Honour, about proper and sensible lines having to be drawn between some conduct and speech that's part of the rough and tumble of industrial relations and conduct to the contrary which is plainly improper, contrary to the public interest and calculated to be destructive to cooperate workplace relations. Now, there can be no serious dispute that those statements were made in the context that those witnesses gave evidence.

PN1270

The only issue for your Honour, I submit, can be what characterisation to put on them and viewed in context the proper inference to draw is that there were attempts made by Mr McDonald to intimidate those witnesses from proceeding with the claim or perhaps proceeding with other industrial relations steps in respect of what was said after the Commissioner left the premises and when everyone was out near the lift. And a useful test, I submit, of how one should characterise that conduct is to ask what would the objective observer, perhaps with some reasonable knowledge of industrial relations, a balanced approach to things say about that.

PN1271

The only sensible answer to that can be it seriously and gravely crossed the line as to what could conceivably be expected by someone who wants to be given a lawful entitlement to enter on to premises pursuant to part IX of the Act. For conduct of that kind to occur in the precincts of this Commission and in the context of a proceeding about to start in operation and which has just concluded is serious and warrants condemnation, in my submission, by your Honour. Those are the submissions we make about the evidence on which we rely and that's of course not to downgrade the importance of context as I mention in the preamble to our schedule.

PN1272

Can I make some submissions about what we say are the real short comings in
Mr McDonald's case in light of his decision not to give evidence and to in effect try and salvage some ground second hand or through the back door through the agency of Ms Scoble. Of course the criticisms I make are not to imply any profession criticism of Ms Scoble's role and they ought to be seen in that light. They should be taken to be a serious criticism of the way this application has been conceptualised and a lack of factual and evidentiary support for what Mr McDonald is seeking.

PN1273

The real heart of what Mr McDonald needed to put on, I submit, to be able to satisfy your Honour that he is a changed man is something entirely unrelated to any specific issues that might have caused self incrimination problems. And really as a consequence of a debate that emerged between your Honour and
Mr Dixon is the reality that it was open issue by issue, fact by fact, to take objection to particular points were the self incrimination privilege might have been claimed. My friend's given an explanation as to the possible self incrimination concerns about the Leighton's evidence and the John Holland evidence.

PN1274

Without conceding any of that, it's our submission, that even if that's right, even if an explanation has been put before your Honour on a Jones v Dunkel approach to explain his absence of giving evidence, that only at the highest gets him home on those particular factual issues. Two consequences flow from that. Number one, your Honour, is still faced with a fact finding task arising from the Leighton's evidence and the John Holland evidence. It may be on the very best case for
Mr McDonald that your Honour doesn't take a detrimental view alah Jones v Dunkel, because there has been an explanation given, that your Honour still is faced with the fact that there is not seriously controverted evidence from
Mr Mullan, Mr Ryan and Mr Jones.

PN1275

There is no serious dispute about the vast majority of the factual evidence those gentlemen gave. Certainly that's so with respect to Mullan and Ryan. Yes, my friend did cross-examine Mr Jones to some degree but none of that went anywhere of any substance, I submit, in terms of the factual findings that ought be made consistently with what we set out in our schedule. The second consequence of the explanation Mr Dixon gave is that it doesn’t get Mr McDonald anywhere in persuading your Honour in a more conceptual way, a more positive way, that there was genuine contrition and that there is now motivation to (a), comply with the law generally and (b), show a respect for the decisions of this Commission, the state Commission and other courts and tribunals.

PN1276

That's where Ms Scoble's evidence, in my respectful submission, is worthy of the most minimal weight. As a general short coming it is characterised by very broad generalised statements which lack any real cogency. The first few paragraphs of her statement are in the nature of background to speak of Mr McDonald's role and the requirements of his duties in paragraphs 11 and 12 doesn’t advance the matter, in my respectful submission. Your Honour was probably capable of inferring that anyway from the totality of the evidence. The fact that she has given explanations to Mr McDonald and others about the legal requirements, again, doesn't advance the matter.

PN1277

One would be surprised if any competent solicitor such as Ms Scoble would do otherwise and this is all, by the way, advanced in a witness statement that was prepared yesterday. Again, I don’t criticise Ms Scoble professionally for that but it does illustrate, in my submission, that all this really is an attempt ex poste facto to try and put something before your Honour on the question of contrition and motivation. As to the evidence about that the statements Mr Reynolds made, as explained by Ms Scoble under investigation most recently as a meeting with the national industrial officer, again, that carries, I submit, the most minimal weight.

PN1278

Despite Ms Scoble's answers in cross-examination, and I am not suggesting she was doing other than answering the questions truthfully, the reality is I submit with your Honour's expertise and acumen in these matters, a meeting of this nature of its very character is going to be carried out in an environment of hostility and negativity towards this kind of subject matter. And it may be that in the course of that Mr Reynolds utters those statements but we submit that simply isn’t capable of carrying any content or probative value towards satisfying your Honour that Mr McDonald's a changed man.

PN1279

We know that he has told Ms Scoble that things that are deposed to in 19, 20 and 21 and it's not disputed that those statements were made but again it's hardly surprising that it would be otherwise if Ms Scoble sat down with Mr McDonald, spoken about this application, and gravely and sombrely reminded him of what his obligations are and he makes a statement as to his intention as covered in paragraph 21. With great respect to Ms Scoble what she personally believed about his future intention is not we'd give any weight in your Honour's exercise of administrative discretion.

PN1280

So we get back what is manifest from those statements which I opened on and which I continue to rely on and I do want to take your Honour to those again because they are important.

PN1281

THE VICE PRESIDENT: It might be a convenient point now if its - - -

PN1282

MR HOOKER: Your Honour, I'm not going to be much - of course my friend has got to reply.

PN1283

THE VICE PRESIDENT: But how much longer do you think you're going to be?

PN1284

MR HOOKER: I will only be another five to 10 minutes.

PN1285

THE VICE PRESIDENT: All right. Yes, Mr Hooker?

PN1286

MR HOOKER: I was about to take your Honour to those press statements and as would have been clear from opening some of them are obviously - some of them are more weighty than others. The ones we place reliance on are these. The first one in the construction worker journal. The next one which is some reported statements in the Western Australian in May of 2004. The next one is just a copy of that. Then if your Honour goes one, two, three, four, five, six and seven further pages in, we rely on those two. That is what Mr McDonald is reported as having said to the Western Australian and to the Australian.

PN1287

THE VICE PRESIDENT: On what days?

PN1288

MR HOOKER: 22 July 2004.

PN1289

THE VICE PRESIDENT: Yes.

PN1290

MR HOOKER: Mr McDonald loses right of entry to work sites and defiant union heavy will not be moved.

PN1291

THE VICE PRESIDENT: Yes.

PN1292

MR HOOKER: There is a real consistency in all of those statements, your Honour, and not only has it not been controverted or subject to challenge as to its accuracy nor has there been any context put as was foreshadowed as a possibility to give some explanation to what Mr McDonald meant. So they can and ought be read, in my submission, at face value and as reflecting the obvious intent of the words. So in particular, and I'll just take your Honour to the first one in the Western Australian only because it is easier to read. It certainly entirely consist with what's in construction worker.

PN1293

Directly after Mr McDonald discontinue his earlier proceedings for a fresh permit he said that he wouldn’t be wasting thousands of dollars of members' money to line the pockets of lawyers on pointless legal proceedings.

PN1294

The obvious inference to draw from that is that the legal proceedings don’t matter because he is going to do what he wants to do. That's reinforced by the next reported and unchallenged statement.

PN1295

This, that is, not having a right of entry permit won't keep me or other CFMEU officials off any jobs. It will be business as usual.

PN1296

Then to precisely the same effect in terms of those themes that I opened on going to the first of the reported statements in July 2004. This one's as reported, unchallenged less than an hour after Commissioner Gregor delivered his decisions suspending Mr McDonald's state permit:

PN1297

If I had to jump a fence to enter a building site then I will.

PN1298

So clearly evocative of someone who is not interested in what the rules are. He will do what he wants to do unburdened by the law and further that he's not prepared to respect the umpire's decision that's been delivered just an hour ago, to precisely the same effect he's reported has having said, and this is unchallenged, three years ago, they, that is this Commission, the Full Bench your Honour sat on:

PN1299

Took my right of entry away but that has not stopped me going on to federal jobs.

PN1300

Your Honour, those statements were a little over a year ago but the applicant would have your Honour take the view in light of precious little that's been put by the applicant who bears the onus that this gentleman is a changed man. That he has got such contrition for what has happened previously and he has modified his behaviour such as to respect the law and be interested in cooperate workplace relations. He certainly didn’t respect the law in July 2004 when Commissioner Gregor delivered a decision adverse to him. He has shown throughout the events of 2005 on which we rely that he will still breach the law and otherwise act improperly in a variety of ways.

PN1301

The only sensible inference in my submission that your Honour on the totality of the evidence that the very real concerns that the context and history create have not been resolved. It was open to Mr McDonald to correct those matters and persuade your Honour to the contrary but he has chosen not to do so. He seeks to get some comfort from the character references that have gone into evidence over objection. Now my friend didn’t address those but they're none the less before your Honour so I should so a little bit more about those to some extent I am repeating what the source of my objection was. There probative value is next to nil, in my submission, because we simply don’t know what facts those "witnesses" had before them.

PN1302

They might be saying little more than they think Mr McDonald is a good bloke. It may be in a lot of context he is, your Honour, but this case isn’t about that. This case is about Mr McDonald preparedness to observe the law, engage in cooperative workplace relations and accept the umpire's decision. We don’t know what, if anything, those witnesses had before them. We don’t know if they had any of the materials or history of this matter drawn to their attention. It's simply a generalised expression of opinion sitting in a vacuum in each case. Again, it's the best attempt Mr McDonald has been able to come up with to overcome the difficulty he faces in going into the witness box himself.

PN1303

As eloquent as anything that is before your Honour is the simple meaning of those statements on which we rely buttressed by the events of what has happened in 2005. Your Honour, ultimately has to ask yourself in our respective submission, can I have any real confidence that the sort of conduct giving rise to the revocation of 2001 will not be repeated. Can I have any genuine confidence that he has modified his behaviour? On a proper assessment of all of the evidence the answer has to be, no. May it please the Commission.

PN1304

THE VICE PRESIDENT: Thank you, Mr Hooker. I will adjourn until 2.30.

<LUNCHEON ADJOURNMENT [1.05PM]
<RESUMED [2.30PM]

PN1305

THE VICE PRESIDENT: Yes, Mr Dixon?

PN1306

MR DIXON: Your Honour, before I commence could I just hand up a copy of a decision in Molina v Zaknich, Z-a-k-n-i-c-h, Media Nutra Citation 2001 WA SCA 337 and that was in support of a proposition, your Honour - - -

PN1307

THE VICE PRESIDENT: Yes, a premises issue, yes.

PN1308

MR DIXON: Yes. In relation to the other authority I mentioned - I won't hand up a copy of the Tracey decision - but suffice to say that the six elements that your Honour set out in the previous decision as to what is in issue in consideration of these proceedings are reproduced at paragraph 10 of the applicant's outline of submissions. The final element, "other conduct which may said to be inconsistent with the objects of the WR Act" - the public interest is the one prior to that - although not necessarily dealt with, I would say that in my submission there is some relevance in the statement of Ms Scoble insofar as the views of the union are concerned, and certainly with respect to the matters put by Mr Reynolds, and your Honour can take some comfort in that Mr McDonald being an employee and assistant secretary under the authority of Mr Reynolds would temper his behaviour in accordance with the directions that are produced in Ms Scoble's witness statement.

PN1309

If I could just now deal with the matters in reply that Mr Hooker raised. The first one he raised was onus and the statement was made that there was nothing to prove. In my submission when one looks at onus one has to understand the typical context of this where an application is made to the Registry. In my submission, although these proceedings bring different issues to bear, as would typically be in a normal case, in my submission the onus is one that's easily discharged and in reality once an averment is made in these proceedings it's for the applicant to meet the objections and that's the way this has proceeded in my submission. Apart from stating that I rely on the written submissions.

PN1310

The second matter raised by Mr Hooker was the Cooperative Workplace Relations was an issue and that the conduct of Mr McDonald exhibited that your Honour couldn't take any confidence that there was indeed any chance that Mr McDonald could engage in Cooperative Workplace Relations given the evidence that had been led. One has to, of course, look at the context. There is evidence on - and I've referred to that previously, CFMEU 6 and 7 which is some indication that Mr McDonald has done. There is also evidence from Mr Ryan that Mr McDonald had attempted to discuss or maintain a dialogue in relation to certain issues and, indeed, in relation to Mr Jones, but I'll come to that evidence when I deal with the matters in reply to deal with John Holland, but certainly there's evidence from Mr Jones that Mr McDonald had attempted to discuss matters that were in issue between the parties.

PN1311

There was also some reference made to the press clippings in relation to this issue particularly. I didn't deal with that in my original submissions, however I'll come to that in more detail as a separate topic, if I will. The matters that are not pressed by Mr Hooker, being OEA 478 and I think I've got 5 there, 4, 5, 7 and 8, and the Royal Commission matter at tab 10, really leaves, as I understand the objection as being, the John Holland matter, the Leighton matter, the press articles, the previous revocation - I should say suspension under the state legislation and the assault matter which we haven't as yet dealt with in closing submissions.

PN1312

THE VICE PRESIDENT: And the interlocutory injunction?

PN1313

MR DIXON: And the interlocutory injunction involving Master Sanderson, yes, I stand corrected. That is indeed one of the matters relied upon and I'll come to that briefly. Mr Hooker then made a submission in respect of what was in essence unlawfully remaining on premises and relied on a construction of the Act in which the requisite purpose of the entry was in effect a necessary precondition to the exercise of those rights. In my submission that's not a construction open on a proper reading of the provisions in Division 2(g) and I make that submission on a number of bases.

PN1314

Section 49(l) really provides the one condition when an authorised representative is exercising his powers under that section. One condition which must be complied with vis-ŕ-vis the occupier - - -

PN1315

THE VICE PRESIDENT: But aren't the substantive rights in 49(h) and (i)?

PN1316

MR DIXON: Yes.

PN1317

THE VICE PRESIDENT: And isn't the argument put against you that what's to be inferred from those is that it's in relation to those matters that you're able to enter premises, rather than others, and the inference is that, well, 49(h) provides for the purpose of holding discussions at the premises with any of the relevant employees who wish to discuss?

PN1318

MR DIXON: Yes.

PN1319

THE VICE PRESIDENT: That's the essence of that, and 49(i) is a right to enter for the purpose of investigating any suspected breach of the Act or other Acts and what's put to you is that, well, in respect of the particular instances there was no statement of purpose that fitted within either of those two? Is your issue that you don't need to state the purpose?

PN1320

MR DIXON: That's exactly right and that's why I mentioned 49(l).

PN1321

THE VICE PRESIDENT: Yes, I see.

PN1322

MR DIXON: Because 49(l) contemplates that a person may be on site and exercising those powers for any length of time and the condition that the authority be shown then might arise - - -

PN1323

THE VICE PRESIDENT: But it doesn't say that you have to advise as to what your purpose is or what breach you're investigating or anything of that nature?

PN1324

MR DIXON: Exactly. That's the construction, that's what I'm relying on for that.

PN1325

THE VICE PRESIDENT: Let me just think about that for the moment, if you wouldn't mind. So on your construction if someone turns up to the front gate of premises or a building site, let's say, if they're stopped and if they're asked why they're wanting to enter, that might be in a different position, leave aside whether there's an obligation to seek people out and advise them, I'm coming on site for one purpose or another, if they're asked and they don't advert to any of the purposes, would that be a basis for refusing entry?

PN1326

MR DIXON: In my submission, no. Once the authority is shown upon request and it is apparent then that the authorised representative is exercising powers under Division 2(g)(b) at 49(h) or 49(i), then the right to enter the premises arises or is maintained.

PN1327

THE VICE PRESIDENT: Well, the right to enter the premises though in 49(h) and (i) is conditioned by the purpose. If you don't have that requisite purpose, you can't enter. Well, here, where is the evidence of requisite purpose? Because if we take one example where the evidence of one of the witnesses was, they asked Mr McDonald why he was on site - and I've forgotten the exact response - but words to the effect of, I don't know, well, that suggests that he didn't have the requisite purpose. If he'd said nothing, then who would know? But where he responds and doesn't advert to one of the purposes for which entry is granted under the Act, well, where's the right to remain?

PN1328

MR DIXON: Well, if I could just take you to the statement of Mr Jones where your Honour is referring to that very issue.

PN1329

THE VICE PRESIDENT: Yes.

PN1330

MR DIXON: Paragraph 10. What's put to him, he's asked there whether he's there on a state or Federal matter and he advised it was a state matter. I requested he advise on what issue. He advised he didn't know yet. It was put in cross-examination that Mr McDonald in fact said he was there to speak to the workers, and I don't have a copy of what the exact response was in that case.

PN1331

THE VICE PRESIDENT: Yes. The response was no, that's not his recollection, or words to that effect.

PN1332

MR DIXON: But then it goes on to say, he asked me if there was anything else and then he told me to eff off. There's obviously, one can confer there that Mr McDonald wasn't going to tell the site representative the purpose he was there for, apart from the fact that he was there in relation to a state matter.

PN1333

THE VICE PRESIDENT: Well, but what does that mean? Where does it fit within 49(h) and (i)? He didn't say he was there for the purpose of holding discussions. Depending on whether - to reach the conclusion that that was his purpose, I'd have to accept or find that the witness' recollection was incorrect in relation to that issue, because you put that proposition to him and he said no, that it wasn't what was put to him. There's no other evidence to suggest that was what was put to him.

PN1334

MR DIXON: That's to be accepted if that's been the construction of the Act, but the construction that I'm propounding is that 49(h) and (i) talk about a purpose in fact, not necessarily a purpose that is required to be expressed to an occupier upon request. In my submission, if that had have been the case, then you would have imagined that 49(l) would have included within it a requirement to state that.

PN1335

THE VICE PRESIDENT: No, we might be at cross purposes. I understand that argument. Leave aside the factual context for a moment. If someone comes on the premises and is asked, well, why are you here, and the reason they give is not a reason which falls within 49(h) or (i). That is, it's not for the purpose of holding discussions. This might be the issue where we get into the difference between a meeting and a discussion, but let's assume it's for the holding of a meeting, a mass meeting, not a discussion, it's crossed that line, wherever that line might lie, and it's not for the purpose of investigating breaches. Well, if they say, if the purpose they identify is not a purpose for which they are authorised to enter, then it's an unlawful entry, isn't it?

PN1336

MR DIXON: Well, that might be the case.

PN1337

THE VICE PRESIDENT: That's not the facts here.

PN1338

MR DIXON: But in my submission that would have to be determined in another context, whether or not he was in fact there for a purpose that is contemplated by those provisions.

PN1339

THE VICE PRESIDENT: Yes.

PN1340

MR DIXON: But in any event, I might deal with it this way, your Honour. If one looks down to paragraph 16.

PN1341

THE VICE PRESIDENT: Yes.

PN1342

MR DIXON: This is a short time after entry, McDonald requested a meeting of site personnel and Mr Jones then approves it, and that's really the issue. I mean, the issue is just simply prior to that, so Mr Hooker's submission really falls away after paragraph 16 because it's apparent there that - - -

PN1343

THE VICE PRESIDENT: There's an implicit consent in him remaining and addressing the meeting.

PN1344

MR DIXON: Exactly. In relation to the other date complained of in the same manner, it's the 14th of the seventh, again Mr McDonald indicates that it's a pay matter, at paragraph 103. Now, he doesn't specify a provision under the Act but in my submission that is sufficient, there are numerous authorities, certainly in the Federal context where if one is there to, for example, investigate a matter there is no need to telegraph any suspicion. There are a number of authorities on that and I understand they're dealt with in some - Ms Scoble says they're not dealt with in our written submission, but there's a Full Bench decision, it wasn't the one I was thinking of, Victorian Association of Forest Industries, 9 October 2003, Print Number 934 - that's an appeal from a decision Print 934790, this is Print Number 939097, Full Bench of Vice President Lawler, Deputy President Lacy and Commissioner Richards. But again, if Mr McDonald was there in relation to a pay matter, in my submission that would be sufficient to telegraph what his purpose is.

PN1345

The final date is the 10th of the eighth and again, in my submission the requirement by John Holland that Mr McDonald is in the site office is something which is outside over and above that required in the State Act. It can't be understood in light of, for example, section 49L where you - - -

PN1346

THE VICE PRESIDENT: Doesn't it give rise to a safety issue? Whenever you appear on a site you usually asked whether you've gone through the induction, whether you're wearing appropriate protective equipment, et cetera, it doesn't matter who it is?

PN1347

MR DIXON: I accept that, your Honour. I'm speaking specifically about a requirement of Mr McDonald see Mr Jones before he does anything. Now, on this occasion Mr Jones isn't available, and yet Mr McDonald enters in any event. Of course, in each case he goes past a gate man which is presumably a John Holland employee, and there are messages meanwhile on the phone requesting his reasons for illegally entering the site. Now, presumably that is because he's failed to report to Mr Jones and that, in my submission, simply is without basis. That type of requirement can't be imposed. Yes, so that's my submission in relation to the three dates complained of.

PN1348

In any event, if I be wrong in those submissions, then the conduct of Mr McDonald has to be understood as really an error of law in that case if
It's an issue common to all workers. Such statements by Mr McDonald in opposition of course are designed to generate a community of interest amongst members, so in my submission you would expect nothing less from an elected official.

PN1349

THE VICE PRESIDENT: So you don't contest the accuracy of what's put, you say I should view it in the context in which it appears, that is it's a union journal with a particular audience?

PN1350

MR DIXON: Well, of course there is a number of differences open to what is actually said. Now, for example in this article Mr Hooker raised a couple of issues. We won't be wasting thousands of dollars of members money to line the pockets of lawyers on pointless legal proceedings. And this is in relation to Mr McDonald's decision to withdraw an application. In my submission it's a throwaway line, it can't mean anything more than that. If the proceedings were pointless then I dare say that we wouldn't be here today. And the second sentence:

PN1351

This won't keep me or other CFMEU officials off any jobs.

PN1352

That is Mr McDonald not getting a federal permit, then really on one view that statement is correct. If other CFMEU officials hold state and federal permits then they will indeed be on the jobs.

PN1353

THE VICE PRESIDENT: And what about the other statement?

PN1354

MR DIXON: I'll come to that. If he has to jump a fence, is that the one?

PN1355

THE VICE PRESIDENT: No. I mean on the same article, in the next column where he says:

PN1356

We believe we have the right to enter any site where the safety or conditions of construction workers are threatened, and no law passed by a hostile government can take that away.

PN1357

MR DIXON: Yes. Well, I'm not exactly - we don't have the benefit of any evidence on that, but obviously again an interpretation is open, is they're relying on your state right of entry, and he's talking there about a federal government law not being able to take away his right to enter state sites. It probably indicates as much as anything Mr McDonald's lack of understanding of constitutional primacy given to federal legislation.

PN1358

And my overall submission in relation to these statements, your Honour, is simply that there is simply no evidence that he's done any of this. Any inference sought to be drawn that Mr McDonald has unlawfully entered federal sites simply isn't supported by any evidence in these proceedings.

PN1359

THE VICE PRESIDENT: No, I can accept that it wouldn't be open for me to draw an inference based on the OEA2 press statements that Mr McDonald has climbed a fence or done anything of that nature. The question is whether he made these statements and whether these statements are - - -

PN1360

MR DIXON: Blunderbuss.

PN1361

THE VICE PRESIDENT: Well, no, whether these statements are reflective of his view of the federal right of entry provisions and his need to comply with them.

PN1362

MR DIXON: Well, I understand the submission put by - - -

PN1363

THE VICE PRESIDENT: Yes, that seems to be the basis on which it's put. Whether I could be satisfied having regard to these statements, amongst other things, that Mr McDonald will adhere to the federal right of entry provisions.

PN1364

MR DIXON: Well, again if Mr McDonald had such a poor view of the federal right of entry provisions one would have again imagined that there would be evidence that he had entered federal sites unlawfully. So the only inference open on the - lack of, is that Mr McDonald has recognised and understood what the federal law entails and that you require a permit to enter federal sites.

PN1365

THE VICE PRESIDENT: I'm not clear on what you say I should do in relation to the OEA2 documents or how you characterise them. If we take the first one, the union journal, well, I understand what you've put about that. But you're not suggesting that Mr McDonald didn't say what he is reported to have said in that document?

PN1366

MR DIXON: Well, I'm not relying on these documents.

PN1367

THE VICE PRESIDENT: No. Are your instructions that he didn't say what he is said to have said?

PN1368

MR DIXON: Well, I don't have specific instructions on that, but I would have thought it was a matter for the OEA to prove that that might have been done. But there is no proof that's what he has said. I don't have any instructions whether he said them or not.

PN1369

THE VICE PRESIDENT: Well, leave aside the newspaper articles for a moment. The statements that are attributed to Mr McDonald and the construction worker, wouldn't I be entitled to find that given it's the union's journal that the quotations that are attributed to Mr McDonald would be accurate?

PN1370

MR DIXON: I'm not sure how it goes that one makes a statement and then it appears in the union journal, whether there's this - - -

PN1371

THE VICE PRESIDENT: Well, it's not just someone making a statement, it's the assistant secretary of a union making a statement. I think you'd be pretty concerned if what he said had been misreported.

PN1372

MR DIXON: Yes, well, that might be case, your Honour. All I'm saying is I'm not sure about the process, I have no instructions of what the process is, as to whether or not there's a verbatim quotes taken by the person that - - -

PN1373

THE VICE PRESIDENT: Well, they're in quotation marks.

PN1374

MR DIXON: Yes. Well, if your Honour can take something out of that then so be it. I'm not making a big issue. Indeed if that had have been completely inaccurate then one might have expected that Ms Scoble might have said something on behalf of the organisation about the accuracy of those statements, but there certainly isn't any evidence about that. Is there anything else your Honour would like me to address in relation to OEA2?

PN1375

THE VICE PRESIDENT: No.

PN1376

MR DIXON: Again the contest of these is that they're all skewed towards either selling papers or selling memberships, and the words used are often either a rally cry or, again as I said before, bravado and rhetoric that one might expect from someone in an elected position whether it be in politics or in a union, especially a militant union like the CFMEU, where one might infer that members might respond to statements of bravado and listen to rhetoric. That's the context of simply what I'm submitting.

PN1377

In relation to the references annexed to Mr Scoble's statement, these are of course - or I should say Mr Hooker wants to attribute some significant weight to the hearsay in the press statements even though they are quotes, and yet make corresponding submissions on the lack of weight that should be attributed to the references. The references are of course signed documents, although untested, are from a number of construction companies. So that's the context that they're drafted in. They all attest to, not so much pander to Mr McDonald but there are many comments in there about him being tough but fair and difficult to negotiate with but always has his members interests in mind.

PN1378

Now, these are from people that one might expect would oppose his application for a permit. There is some reference to some of those articles as well, references as well, your Honour, to the fact that these proceedings are on foot, so the context of the applications is understood.

PN1379

THE VICE PRESIDENT: I think the point put against you is not that it was not understood that they would be used in these proceedings, but that the material that's been put in these proceedings, there's no indication that there was any awareness of that material.

PN1380

MR DIXON: Only from the press clippings.

PN1381

THE VICE PRESIDENT: I don't follow that.

PN1382

MR DIXON: That many of these matters, given the profile, are matters of general public knowledge.

PN1383

THE VICE PRESIDENT: Yes.

PN1384

MR DIXON: And finally, your Honour, the question was asked by Mr Hooker, can your Honour have any real confidence that Mr McDonald has modified his behaviour. Mr Hooker obviously invited you to answer that rhetorical question in the negative. In my submission your Honour can have real confidence not only because of the provisions of the Act and the machinery that's now in place in the federal jurisdiction which really hangs as a sort of Damocles over all permit holders including, I would submit, Mr McDonald who would have far more scrutiny on him. But history shows that since the previous revocation his Behaviour is modified and your Honour can have confidence that Mr McDonald would conduct himself in the appropriate manner. Unless there's anything further I can assist your Honour with, they're the submissions in reply.

PN1385

THE VICE PRESIDENT: No thank you, Mr Dixon. So before adjourning the only issue we have remaining is the assault transcript and certificate attesting to conviction.

PN1386

MR HOOKER: Yes. I'm instructed that will be some, at least a working day or two before the certified conviction is available, and longer than that before the transcript is available. It seems that the wheels of at least that part of the state government bureaucracy take a while to turn even when they're told of a good reason to move quicker. Well, we can obviously liaise with your Honour's associate about the progress of getting those documents, and I'd invite your Honour to entertain some sort of timetable for putting submissions.

PN1387

THE VICE PRESIDENT: Sure. Well, once it becomes available what are you going to want to say about it?

PN1388

MR HOOKER: Well, I suppose it works this way. We submit that the conviction per se is admissible. I must admit I haven't directed my attention - - -

PN1389

THE VICE PRESIDENT: But it would depend. Whether it's admissible or not under the Uniform Evidence Act will be dependent on whether an appeal is instituted, and we can find out all that once we have the material. But as soon as you've got the material it's then a question of what submissions are you going to want to make in relation to the material. You could then seek to file those additional submissions and the material. The CFMEU would have an opportunity to respond to that going to both admissibility generally and, if it was admitted, what follows from it, and if there was anything you wanted to say in reply to that you'd be given an opportunity to do that.

PN1390

MR HOOKER: Yes.

PN1391

THE VICE PRESIDENT: I'm just wondering, rather than this sort of endless - - -

PN1392

MR HOOKER: To-ing and fro-ing.

PN1393

THE VICE PRESIDENT: Yes. That it might be better once you have the material, provide a copy to the CFMEU, file a copy with the Commission, and I'll list it for short video hearing and I'll hear you both in relation to it. It might be quicker in the end than - because I apprehend that you'll advance an argument about why it should be admitted, Mr Dixon will respond, you will want an opportunity to respond to that. You may raise other issues, and we'll be backwards and forwards till Christmas, and really it's a relatively short point.

PN1394

MR HOOKER: Yes, I'm content with that, your Honour.

PN1395

THE VICE PRESIDENT: So my associate will be in touch with you once it's been filed to work out a convenient time as to when we deal with the argument and where you want the video links to and all those sorts of issues.

PN1396

MR DIXON: Yes. I was going to just indicate as a matter of practicality, I'm actually at the Sydney Bar so I'm not sure - - -

PN1397

THE VICE PRESIDENT: No, I know. That's why I raised the question of where. Look, we can organise links between Melbourne, Perth and Sydney and do a three way link, though in my experience they've not been wildly successful. Alternatively I can list it on the next - depending on how far out it is, the next occasion I'm in Sydney and we can deal with it that way. So you will be able to appear and we'll have a link to Perth. But one way or another we'll sort through those issues. I wouldn't worry too much about the technicalities at the moment.

PN1398

MR DIXON: Could I just say in terms of whether the conviction per se is admitted as a - which evidence of the conviction, I dare say that Mr Hooker will secure his certified copy of the judgment et cetera possibly before the appeal itself is instituted, but I'll be relying on that fact as I'd foreshadowed previously, your Honour.

PN1399

THE VICE PRESIDENT: What fact though?

PN1400

MR DIXON: That the issue will be what is the status of the conviction when there is an extant appeal.

PN1401

THE VICE PRESIDENT: But it will only be if an appeal's been filed.

PN1402

MR DIXON: Yes. All I'm saying, that there will be some time lag between the two.

PN1403

THE VICE PRESIDENT: Well, I think you've got to file the appeal before you can rely on the exclusion.

PN1404

MR DIXON: That's correct. That's all I'm saying. I might have been stating the obvious, I apologise.

PN1405

THE VICE PRESIDENT: No, not at all. Well, I'll wait to hear from you and we'll organise a further short hearing by video conference. Thank you, I'll adjourn.

<ADJOURNED INDEFINITELY [3.18PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DAMIAN TIMOTHY RYAN, ON FORMER OATH PN780
CROSS-EXAMINATION BY MR DIXON PN780
EXHIBIT #CFMEU3 LETTER FROM MR BEVAN TO SECRETARY CFMEU DATED 13 SEPTEMBER PN838
EXHIBIT #CFMEU4 FORM R47 NOTIFICATION OF DISPUTE PN838
EXHIBIT #CFMEU5 NOTICE OF LISTING FOR CONFERENCE BEFORE COMMISSIONER GREGOR ON 29 JULY PN838
EXHIBIT #CFMEU6 LETTER FROM MR MCDONALD TO
MR RYAN DATED 13/09/2005 PN851
EXHIBIT #CFMEU7 RESPONSE DATED 15/09/2005 PN851
RE-EXAMINATION BY MR HOOKER PN853
THE WITNESS WITHDREW PN860
KAREN LESLIE SCOBLE, AFFIRMED PN860
EXAMINATION-IN-CHIEF BY MR DIXON PN874
EXHIBIT # CFMEU8 STATEMENT OF KAREN LESLIE SCOBLE DATED 15/09/2005 PN878
CROSS-EXAMINATION BY MR HOOKER PN879
RE-EXAMINATION BY MR DIXON PN914
THE WITNESS WITHDREW PN944
EXHIBIT #OEA15 DOCUMENT PN977