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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 12894-1
DEPUTY PRESIDENT MCCARTHY
C2005/249 C2005/251
DOWNER ENERGY SYSTEMS PTY LTD UNITED KG PTY LTD G & M CONSTRUCTION PTY LTD AS TRUSTEE FOR THE WESTERN CONSTRUCTION UNIT TRUST
THIESS PTY LTD AMEC SERVICES PTY LTD TOTAL CORROSION CONTROL PTY LTD CHARLOTTE HOLDINGS PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/249)
PERTH
10.16AM, WEDNESDAY, 05 OCTOBER 2005
Continued from 21/9/2005
Hearing continuing
PN426
THE DEPUTY PRESIDENT: Yes.
PN427
MR DAVIES: Your Honour, if I might deal with one preliminary matter. It relates to a letter which was forwarded to the parties and the Commission on 3 October 2005. It concerns the materials filed by the respondents according to the directions of the Commission in preparation for today's hearing. We outlined in that letter that we were wholly dissatisfied with the information that was provided by each of the respondents. We say that it does not comply in any way with the Commission's directions. Of course there is a tactical advantage to the unions in that occurring because we don't have a full appreciation of the case and the evidence they intend to run and if we were to make an application to this Commission that further directions be given, that would delay the case.
PN428
We obviously don't intend at this stage to ask for the proceedings to be delayed but wanted to note for the record that we've been given virtually no assistance by the materials provided by the respondents. Should it transpire during the course of the proceedings that we may need some adjournment because of that disadvantage, unfortunately we will have to ask for it. It's just wholly unsatisfactory for the respondents to, we say, treat the directions effectively contemptuously. We will be taken by surprise by whatever evidence is called because we don't know what evidence will be called by the respondents.
PN429
That was the first matter, your Honour. There are a couple of other minor matters just in relation to procedure as we go through the cross-examination, but that was the main matter I wished to raise before getting to the evidence.
PN430
THE DEPUTY PRESIDENT: Does anyone wish to comment on that statement?
PN431
MS SCOBLE: I do, your Honour. We certainly don't treat the directions from this Commission contemptuously. We have the problem with outlining the evidence that our witness is going to give prior to our witness going into the witness box and actually giving that evidence. Obviously we can't pre-empt what our witness is going to say in the witness box and that's the problem that we were faced with as far as providing details chapter and verse as to what our position is. Certainly the CFMEU sought to comply with the directions and I think it's going a bit far to say that we were treating those directions contemptuously.
PN432
THE DEPUTY PRESIDENT: I take it you've noted what Mr Davies is saying that if there are issues that arise in that circumstance which takes him by surprise or which they're unaware, then he's quite within his rights to seek an adjournment to get some instructions on those issues.
PN433
MS SCOBLE: Yes, and we would have no objection to that, your Honour.
PN434
MR EDMONDS: Thank you, sir, if I could echo the comments of my friend, sir, and confirm that we don't treat anything with contempt in these circumstances. If we can perhaps say as well, sir, that I suppose given the workload that is being thrust upon the unions with many changes taking place in our area at this point in time, in particular the new legislation which already has an impact upon us and which we have to be aware of, it's difficult to comply to the extent that the applicant is asking us to. We certainly used our best endeavours to comply and certainly we don't believe the applicant will be taken by surprise by any of the positions we intend to advance today.
PN435
If we could say further, sir, that it's my understanding that at present there is an interim order in place so if the applicant needs to seek an adjournment at this point in time they wouldn't be prejudiced by any adjournment that may seek while they go away and take further instructions. As I say I don't think the applicant will be surprised by anything we say today.
PN436
MR DAVIES: Sorry, your Honour, is my friend indicating that the respondents would agree to an interim order applying to all of the applicants when we seek an adjournment because there isn't an interim order in place for any of the applicants, apart from United KG.
PN437
MR EDMONDS: Sorry, sir, that is correct certainly as far as that company is concerned and if they do need to seek an adjournment then of course they could seek an interim order. I'm not saying that we consent, sir, but that could potentially deal with any sort of prejudice that may arise in those circumstances.
PN438
THE DEPUTY PRESIDENT: Yes. Mr Edmonds, one issue I would like some clarification on is, in your particulars of defence in a lot of the incidents that are identified, you've used the phrase "not admitted and must be proved". What's meant by that?
PN439
MR EDMONDS: It simply meant, sir, that the respondent doesn't admit that that occurred and then if I could say in these circumstances,
sir, given the particular interest that's paid to transcript of any proceedings involving the CFMEU, the AMWU and the CEPU in WA,
certainly my instructions are that we don't admit to anything, sir. In the first instance, we don't admit to anything, we don't
put our hands up to anything and we're certainly not going to put our head in the
noose.
PN440
THE DEPUTY PRESIDENT: It's more the second part of the phrase, "must be proved" that I was - - -
PN441
MR EDMONDS: We say that the applicant must prove that that action occurred. They must lead sufficient evidence to the Commission to be able to establish that action occurred and they must satisfy the Commission that this action occurred in the manner in which they say it occurred.
PN442
THE DEPUTY PRESIDENT: What do you mean by proved?
PN443
MR EDMONDS: They have to establish that on the balance of probabilities,
50 per cent plus one, that - - -
PN444
THE DEPUTY PRESIDENT: Is that the test?
PN445
MR EDMONDS: I think so, sir. The balance of probabilities - - -
PN446
THE DEPUTY PRESIDENT: What the Act says is if it appears to the Commission that industrial action is, in these circumstances, probably what's being asserted, it's probable. So what's the standard, really what I'm asking, that you're asserting in that defence?
PN447
MR EDMONDS: I suppose there are two issues. They need to establish to the Commission's satisfaction that due to these alleged incidences of industrial action that it is probable that industrial action will occur into the future. We say that that's a balance of probabilities, that the Commission has to be satisfied on the balance of probabilities that industrial action may occur into the future.
PN448
THE DEPUTY PRESIDENT: I'm just alerting you to that issue and it's up to you to establish it, I suppose, as to what the test is, Mr Edmonds, but I'm just alerting you to the issue of whether it's on the balance of probabilities or whether it's something more than that or something less than that, is something that may need to be addressed. The other issue, I suppose, may not be just past behaviour that needs to be considered but current behaviour in assessing what future behaviour might be in the sense of what a probability is or not. I'm just alerting you to that.
PN449
MR EDMONDS: While on my feet, sir, and addressing the issue of the correspondence that's been sent to the Commission by Blake Dawson Waldron with respect to our compliance with the directions or otherwise, they also assert in that correspondence that the CEPU has failed to address all instances of industrial action. I suppose the reason why this comes up, sir, is that I'm concerned that the applicants seem to be taking the position that it's incumbent upon the CEPU to address instances of alleged industrial action which involve my friends and which don't involve the CEPU.
PN450
It's certainly not our intention to address those issues, it's not our intention to address any alleged industrial action that may involve people other than the CEPU members or CEPU officials. I'm concerned in the circumstances, sir, that the applicants seem to be asserting that because the CFMEU and the AMWU are alleged to have taken certain industrial action, that that is somehow evidence that the CEPU may take industrial action into the future.
PN451
THE DEPUTY PRESIDENT: I think you have alerted the applicants in that respect, and the Commission, Mr Edmonds. You don't need to pursue that.
PN452
MR EDMONDS: Yes, sir. As long as the applicant is clear, I suppose, that they need to establish that the CEPU through its alleged
instances of industrial
action - - -
PN453
THE DEPUTY PRESIDENT: For my purposes, Mr Edmonds, if there are any orders that issue against the CEPU, there will have to be an evidentiary basis upon which those orders are based.
PN454
MR EDMONDS: Thank you, sir.
PN455
MR McLANE: Just briefly, if I can, sir, I concur with both my learned friends from the unions. I just want to state for the record, sir, that we take offence at the allegation that we treat the Commission contemptuously. Nothing can be further from the truth. We may well treat comments from the other end of the bar table and correspondence from a particular author with a degree of contempt, but that doesn't flow in any way through to the body that we appear before, sir.
PN456
In relation to the test to be applied, I would say that the balance of probabilities is probably the standard of proof. However, I do acknowledge that it could well be something less, but nonetheless - and it's in relation to the notice of defence that we've filed, sir, and I really acknowledge the work of Mr Edmonds and that you don't have to be a Rhodes scholar to work out that I've piggy-backed him to some degree on the back of his work.
PN457
In relation to it must be proved, sir, we simply say - - -
PN458
THE DEPUTY PRESIDENT: It's all down to you, Mr Edmonds.
PN459
MR McLANE: - - - he who asserts must prove. To the standard that they must prove is something for the Commission but they bear the onus and that's what we say there. As far as the documentation that I worked on until 8 o'clock last Friday afternoon, notwithstanding the help of Mr Edmonds, I would have much rather been down the pub drinking Guinness with my mates than doing this. If the Commission pleases.
PN460
THE DEPUTY PRESIDENT: Thank you. Mr Davies, I think where we left it is, you had presented your evidence. Was that the conclusion of the evidence at this stage you wished to present?
PN461
MR DAVIES: With this exception, we were left at the end of our evidence having reserved the right to request that further evidence be called in relation to issues arising thereafter and in the course of the directions that the Commission gave us we were required to indicate any additional facts or allegations that we relied on and to file statements. We filed three statements, a statement by Helen Spencer which enclosed our correspondence to the Commission about the disputes settlement procedure, a statement by Mr Steve Mayne from TCC, which enclosed his statement and transcript of proceedings in recent proceedings before the Commission, and a supplementary statement of Mr Riordan which related to some events since that date. The Commission and the other parties have had those for a number of weeks and when it gets to that particular witness in cross-examination, just before they're asked cross-examination, say is that their statement and hand it up. We don't have any other questions to ask apart from to confirm and tender those documents.
PN462
THE DEPUTY PRESIDENT: Yes, thank you.
PN463
MR DAVIES: In terms of order of witnesses, your Honour, there are some witnesses who we understand, both from the number of unions that require them for cross-examination and also because of the part they play, may not be required for as long today as others and have fairly pressing work to do down at Pinjarra. So if the Commission was minded to do so, we would ask that Mr Martins, Manual Martins, who's a manager for United KG down there, be cross-examined first. I don't expect he will be very long at all. He has already been cross-examined once on his material and there's no new material for him. He can then get back to work and we would hope the same for Mr Carey and get onto the main other two witnesses.
PN464
THE DEPUTY PRESIDENT: I take it that each of the unions does wish to cross-examine each of these witnesses. Is that accurate?
PN465
MR EDMONDS: Sir, I don't need to cross-examine all of the witnesses because there are some who have given evidence about matters which are of no consequence to us, in particular Mr Mayne has given evidence about TCC employees none of whom are members of the CEPU and there is no agreement between the CEPU and TCC. We don't intend to cross-examine those witnesses that are of no consequence to us.
PN466
THE DEPUTY PRESIDENT: Do you wish to cross-examine each of the other witnesses?
PN467
MR EDMONDS: Sir, the witnesses I wish to cross-examine in the proceedings are Mr Riordan, Ms Spencer and some of the issues with Ms Spencer and Mr Martins have already been addressed in the interim orders application, sir, Mr Carey and, of course, Mr Martins very briefly again, just to nail down those issues.
PN468
THE DEPUTY PRESIDENT: Perhaps if Mr Martins can resume the stand now. Does that cause any angst to anybody?
PN469
MR DAVIES: Is it appropriate that both parties' witnesses leave the room while cross-examination is occurring?
PN470
THE DEPUTY PRESIDENT: Ordinarily that would be the case unless the parties don't wish that to occur.
PN471
MR DAVIES: I'm taking my instructions from Mr Hayes, sir, so if he leaves the room then I've got no one to take my instructions from.
PN472
THE DEPUTY PRESIDENT: Is it the same situation for each of the others?
PN473
MS SCOBLE: That's correct.
PN474
MR EDMONDS: We'll be happy for the rest of the applicants to leave the room, if you like, sir.
PN475
MR DAVIES: Your Honour, I would still press the request. I appreciate that there may be a need to obtain some instructions at some point and if there needs to be a short adjournment for that to occur, that can happen. My friends have had several months now to obtain instructions in preparation for cross-examination of the witnesses and if those witnesses are going to be called directly to contradict what's being asked in cross-examination, we would say it's important that they give that evidence.
THE DEPUTY PRESIDENT: I'll take that into account in assessing the evidence, Mr Davies, but I won't order any exclusion of witnesses. Mr Martins can be called.
<MANUEL MARTINS, SWORN [10.33AM]
<CROSS-EXAMINATION BY MR MCLANE
PN477
MR McLANE: Mr Martins, a couple of weeks have passed, I suppose, since you were here last?---You're right.
PN478
How are things on the site in relation to United in that period of time? Has there been any more industrial action?---There has been no further industrial action.
PN479
Are you aware of efforts that Mr Emery, the shop steward, has been taking to try and, you know, keep things civilised?---I believe that John has maintained his work ethic.
PN480
In relation to Mr Steve McCartney, are you aware of any extra efforts he's been going to in relation to the site at United?---Not in particular detail.
PN481
Have you heard anything?---No.
PN482
Sir, what I would like to do is tender an exhibit, probably through this particular witness that I intend to use a number of times today.
PN483
THE DEPUTY PRESIDENT: Can I just have a look at it first?
PN484
MR McLANE: Yes.
PN485
THE DEPUTY PRESIDENT: And if Mr Davies could be provided with a copy. These are identified dates and issues for the purpose of facilitating your cross-examination, I take it?
PN486
MR McLANE: It is, sir. It's simply a cut and paste out of the notice of defence.
PN487
MR DAVIES: I would like this to be marked for identification for now. It can be used through the course of the day then put into evidence if needed at the appropriate time, if it's required for evidence. It may not be, it may just be used for submissions.
THE DEPUTY PRESIDENT: I'll mark it just for the purpose of ensuring that everyone knows what document is being referred to.
EXHIBIT #R1 EXTRACT FROM NOTICE OF DEFENCE
PN489
MR McLANE: Mr Martins, if I could take you across to the third page. You'll see it's headed United KG - I apologise, I should just take you through it. You'll see on the first page it's headed TCC?---Mm.
**** MANUEL MARTINS XXN MR MCLANE
PN490
What I've attempted to do there is isolate the ..... for TCC, the same with Downers on the next page and then United on the third page, and they're not numbered, I apologise for that - Thiess and then the whole site and then Western. So it's a breakdown by company basis. I want you to have a look at the United breakdown and tell me if there's anything missing from there in relation to industrial action involving the AMWU?---I mean, I couldn't off the top of my head identify any.
PN491
Could I just take you to where it's headed 14 April. Do you see there's two there. The one down the bottom, or the lower one on the 14th says "United UKG mechanical employees" and the one above says "remaining in the sheds"?---I see that.
PN492
Are you able to confirm if they're both United or is there one there that shouldn't be?---Unable to confirm.
PN493
Was there two strikes on that day or one involving your people?---I am unable to confirm. I would have thought there would have been one stoppage.
PN494
That could be an error. There would hardly be two strikes, would there, of the one workforce?---Unable to clarify that.
PN495
Have you ever had the situation where you've had two strikes on one day of the one union membership?---No.
PN496
That does me for cross-examination, sir.
PN497
THE DEPUTY PRESIDENT: Thank you. Ms Scoble or Mr Edmonds.
MS SCOBLE: I've just got one questions for Mr Martins.
<CROSS-EXAMINATION BY MS SCOBLE [10.38AM]
PN499
MS SCOBLE: You said to my friend Mr McLane that there has been no further industrial action on the site since we were last here. Is that right?---That's correct.
PN500
Do you agree that the CFMEU have not been involved in any further industrial action since we were last here?---That is correct.
PN501
Thank you, nothing further.
**** MANUEL MARTINS XXN MS SCOBLE
PN502
THE DEPUTY PRESIDENT: Mr Edmonds, do you wish to - - -
<CROSS-EXAMINATION BY MR EDMONDS [10.39AM]
PN503
MR EDMONDS: Mr Martins, when you were last here, the issue that your evidence went to was the cancellation of overtime on 17 September. That's correct, isn't it, sir?---Correct.
PN504
Saturday the 17th. You said at that time that only one worker was not advised that overtime was cancelled and they turned up for work on Saturday. Is that your position still?---I don't recall being specific about one worker.
PN505
How many workers are you aware of that attended for work on that Saturday?
---I wasn't aware of any. I have subsequently been made aware of. I wasn't aware at that stage.
PN506
How many have you been made aware of that attended for work on Saturday?
---The figure of three has been quoted.
PN507
Three, okay. Have those three workers been paid for attending work on that day?
---Couldn't confirm that.
PN508
Have you instructed that those three workers be paid for that day?---I have had discussions along those lines with Helen Spencer, yes.
PN509
You've instructed her to ensure those three workers were paid for the three hours overtime on that Saturday?---I asked Ms Helen Spencer to look at the issue and advise the probable outcome.
PN510
Has she advised you of the probable outcome?---Not at this stage.
PN511
When do you think that's going to be addressed? It's some over two weeks ago now, when do you think the issue of whether those workers are going to be paid is going to be addressed?---Should be addressed within a reasonable time.
PN512
What do you think is a reasonable time?---Should be addressed, you know, within reason, should have been addressed.
PN513
Do you agree that if workers had not been advised that the overtime was cancelled and attended for work, that they should be paid for that time that they attended for overtime?---I think we need to establish that the workers were not notified before we make payment.
**** MANUEL MARTINS XXN MS SCOBLE
PN514
It has taken you two weeks to establish whether they were notified or not?
---Ms Helen Spencer has been dealing with that. I haven't been involved with it.
PN515
Since we were last here, which was with respect to this incident on 17 September, are you aware of any more industrial action by the CEPU members?---No.
PN516
Thank you, sir, I've got no further questions for this witness.
PN517
THE DEPUTY PRESIDENT: Mr Davies, any re-examination?
PN518
MR DAVIES: I have no re-examination of Mr Martins. I might just make one comment about this table if I could, whilst it's current, and that is that, whilst it has been marked, we don't accept it's necessarily accurate. It has been used for asking questions and we're fine with that.
THE DEPUTY PRESIDENT: Yes. Thank you, you're excused.
<THE WITNESS WITHDREW [10.42AM]
PN520
THE DEPUTY PRESIDENT: Mr Davies, the other witness I think you said you preferred to be prioritised was Mr Carey, was it?
PN521
MR DAVIES: That's correct, your Honour
THE DEPUTY PRESIDENT: Mr Carey can be called.
<WAYNE DAVID CAREY, SWORN [10.42AM]
<CROSS-EXAMINATION BY MR EDMONDS [10.43AM]
PN523
Mr Carey, you're the manager of Downer Energy Systems. Is that correct?
---Site manager, yes.
PN524
You are also responsible, you say, for the work being carried out by Downer Engineering Power. Is that also correct?---That's correct.
PN525
Are there any other Downer entities on the site, aside from Downer Energy Systems and Downer Engineering Power?---On our project, no. I must - I'll recount there. Previously we had a Downer Works subcontractor on board for various civil works but they're completed.
PN526
They're completed, they're gone and they're not part of these proceedings?---No. That's correct, yes.
PN527
Can you explain to me the difference between Downer Energy Systems and Downer Engineering Power?---I'll try my best but I only joined the company in last January this year so I'm not fully aware of the structure, but Downer Engineering Power is a subdivision of one of the Downer Engineering Groups. Downer Energy Systems is actually under a different wing of the Downer EDI Group but we have an agreement in place where the Downer Engineering Power electrical employees by an internal agreement with Downer Energy Systems, provide our electrical resource on that project.
PN528
Downer Energy Systems employ the metal workers and the CFMEU members?
---Correct.
PN529
Downer Engineering employ the electrical. Is that correct?---Correct.
PN530
You don't actually work for Downer Engineering?---No. I work for Downer Energy Systems.
PN531
Are you authorised to make a statement on behalf of Downer Engineering Power?
---In regard to the industrial matters on the project I am as I'm the total project .....
PN532
How many electrical employees does Downer Engineering Power employ on the site?---It would currently be approximately 11. It would have changed since the submission of evidence previously with reductions in labour force.
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN533
How many electrical employees does Downer Energy Systems employ?---Downer Energy Systems, nil on that project.
PN534
Who is the electrical steward for Downer Engineering?---Jamie Hughes-Owen.
PN535
Is he still the steward?---Correct.
PN536
When did you first meet Mr Hughes-Owen?---Probably shortly after my arrival in late January this year or early February.
PN537
When did you first take over on this site?---Around 26 January.
PN538
Did you first meet Mr Hughes-Owen after there had been a matter in the Industrial Relations Commission in relation to the incident involving a flag?---I probably met Mr Hughes-Owen prior to that incident. I believe that probably would have been the first incidence of discussions of an industrial nature.
PN539
Can you just confirm with me again, sorry, when you started on the site?---Late January 05.
PN540
So the first you became aware of industrial action was in February 2005?
---Correct.
PN541
You say that on 7 February Mr Gill and Mr Turkington were present on the site. That's correct, is it?---Correct.
PN542
They conducted a walk around the site with Mr Gill, Mr Hughes-Owen and Mr Turkington and at that point the issue of the flag was raised?---Yes, I was present. Yes.
PN543
That was on 7 February, was it?---I can't confirm the date but I believe it would have been around that time.
PN544
You said in your evidence that it was 7 February?---I haven't got it here though.
PN545
Your evidence says it was 7 February. Are you satisfied that your evidence is correct in that matter?---I would have reflected that from my diary notes, yes.
PN546
You've taken notes of all these incidents, have you?---I've attempted to.
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN547
Have you discovered that diary? Have you made that available to the respondents to have a look at?
PN548
MR DAVIES: I object to that question, your Honour.
PN549
THE DEPUTY PRESIDENT: What's the purpose of that, Mr Edmonds? I mean, the evidence has been given sometime ago. Have you requested the diary be provided or discovery of anything else of that nature?
PN550
MR EDMONDS: This is the first we've become aware of a diary, sir, which contains notes of all the incidents.
PN551
THE DEPUTY PRESIDENT: You're not required to answer that question.
PN552
MR EDMONDS: You're sure of 7 February?---To the best of my recollection, yes.
PN553
I wonder if you could have a look at this document. Can you identify that document for me?---It would be a weekly timesheet for Downer Engineering.
PN554
If I can take you to Monday, 7 February, there's a column about three days in, Monday 7 February and if I can take you to about halfway down the list of names to Mr Hughes-Owen, I wonder if you could connect those two and advise whether Mr Hughes-Owen was indeed present on the site on 7 February?---There's no hours recorded against him there.
PN555
I put it to you that that means he wasn't in actual fact present?---May be the case.
PN556
I ask you again, are you sure that you spoke to Mr Hughes-Owen on 7 February?
---To the best of my recollection it would have been Mr Hughes-Owen or it may have been another representative if he wasn't there.
PN557
If there's another representative, can you tell me who that was?---I can't.
PN558
Would it be fair to say that you don't know who you spoke to that day?---I'm pretty confident that there was a shop steward representing the CEPU members on the project. There was the organiser, Mr Gill, there was Mr Turkington and myself.
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN559
You said previously you were confident that that shop steward was Mr Hughes-Owen. Are you now not sure who it was after all?---I'm not sure that the timesheet record is correct either to say that it wasn't Mr Hughes-Owen.
PN560
I put it to you that indeed it wasn't Mr Hughes-Owen, that Mr Hughes-Owen wasn't working that day?---Thank you for that clarification.
Sir, we would seek to tender that particular document.
EXHIBIT #R2 WEEKLY TIMESHEET FOR DOWNER ENGINEERING
MR EDMONDS: You say in your evidence in paragraph 39 that following a bomb threat around 1 August you say that you called the members
of the safety committee and the shop stewards into a conference room with yourself and other supervisors from Downer. You explained,
amongst other things, that you were now going to move forward and conduct a sweep of the whole site. I put it to you that in actual
fact what happened is, a meeting was conducted involving the safety committee and shop stewards, Downer supervisors and yourself
and indeed a collective decision was made that that was the way to progress the matter forward, that it wasn't your decision, that
it was a collective decision of all those people?
---Well, I suggest to you that quite often the suggestions get raised from an individual as well and so - then they hit the table
for discussion.
After the sweep was conducted on 1 August there was a meeting that was then held with the entire workforce, wasn't there?---Correct.
PN564
What was the outcome of that meeting?---There was in fact - well, there was a meeting that I addressed the entire workforce at and then there was a secondary meeting after that and the results of the secondary meeting were that the employees agreed to stay on the site until their normal completion of ordinary hours that day.
PN565
You were satisfied with that outcome?---I was.
PN566
It was your idea to hold the meeting?---Again it was a joint decision.
PN567
It was a joint decision to hold the meeting, a joint decision to sweep the site. Obviously workers shouldn't be present at the time you swept the site, should they?---Correct.
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN568
The workers all went and sat in the crib huts?---We were in fact joined, I think, by Mr Hughes-Owen.
PN569
Conducted a sweep, a meeting was conducted after with you present so obviously that was an authorised meeting and they finished work on time that day?---No overtime worked.
PN570
You allege in your evidence that there was a meeting conducted on
15 February 2005 with Mr Hughes-Owen, some shop stewards, the CFMEU and the AMWU and at that meeting you slammed the certified agreement
down on the table. You told them that they needed to comply with the procedure. That's correct, is it?---Yes.
PN571
That subsequent to that there was some industrial action. That's your evidence, is it, and then a shop steward asked for a written apology from you. Do you know who that was?---It was a general request, I believe, to all of the members present.
PN572
You don't know who asked for that particular apology?---No.
PN573
On 9 April there was an alleged stoppage as a result of the death of an employee. You say that that particular Downer employee was not engaged on the project. Where was that particular employee working?---He was employed with the other Downer Engineering Power group on the upgrade work, not on the Alinta Cogen Project.
PN574
One's working on the Cogen and one's working on the Pinjarra Efficiency Upgrade. Those projects are fairly close together, aren't they?---No. They're - they could be in different parts of the world in real terms. They're only - - -
PN575
But they're not in different parts of the world though, are they?---Well, we're actually on one - we're on the extreme southern end of the plant, the Alcoa Refinery and the - I believe the other upgrade project is based at the complete northern end.
PN576
Have the two different workforces got two different sets of crib huts?---Correct.
PN577
Are they in the same area though?---No.
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN578
When you say no, how far apart are they?---Say three kilometres apart.
PN579
On 11 April you say there was a stoppage as a result of payslips not showing sick leave accruals. Is that correct, is it?---There was an issue with accruals. I can't recall if it was sick leave or - - -
PN580
Your evidence says it was sick leave accruals?---Okay.
PN581
Your evidence is that Mr Hughes-Owen approached you to raise the issue with you and you told him that you'll investigate the matter further and attempt to resolve it and inform him in due course. Isn't it true that that sick leave accrual issue had been raised a number of times in the past, as far back as 12 January 2005?---Not with me.
PN582
Okay, but it was raised with the company though, wasn't it?---Because of the structure it was raised with the CEPU members direct supervision who are also employees of Downer Engineering Power and so the issue had never been raised for my profile.
PN583
All right, but it had been raised with the employees' direct supervisor though, hadn't it?---Correct.
PN584
Isn't that what the disputes procedure requires?---Correct.
PN585
The company just simply hadn't responded to that issue. Is that also correct?
---The procedure also says that it will then go to further levels if there wasn't a result and when it came to me I wasn't given
the opportunity to carry that any further to get to a satisfactory resolution without stoppage.
PN586
As far back as 12 January the employees had attempted to follow the disputes resolution procedure, had raised it with their direct supervisor and the company did nothing. That's correct, isn't it?---I can't confirm that because I haven't been advised of that contact with the supervisor.
PN587
I put it to you that that's the case, that indeed it had been raised with the supervisor and that nothing had happened. What do you say to that?---I can't comment.
PN588
How long was the strike action on that particular circumstance? You say it was 24 hours. Was it actually 24 hours?---I can't recall the exact time.
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN589
Was it something similar to perhaps two to three hours? Was it just for the balance of that day and they attended work the next day?---If I've - if I've noted 24 hours, I would assume it was close to 24 hours. It might have been within a half an hour or an hour, I'm not too sure.
PN590
You're confident that that was 24 hours though?---I believe so.
PN591
Is that something else you've also noted in your diary?---I can't confirm that.
PN592
On 14 April you say:
PN593
All Downer's employees took strike action as a result of safety concerns. A number of shop stewards and safety representatives came to speak to me. One of the shop stewards -
PN594
you can't recall who:
PN595
said that they would be holding a meeting with the employees to discuss these issues
PN596
and you've put in brackets:
PN597
General safety concerns including concerns in relation to high winds.
PN598
You said you didn't observe the meeting between the shop stewards and employees taking place, however, subsequently the shop stewards met with you and they said they want a written apology over the alleged rudeness of the safety coordinator. That's correct, is it?---I would believe that to be correct.
PN599
Are you sure that all Downer employees took industrial action that day or was it just employees of Downer Energy Systems who took
alleged industrial action?
---I can't recall.
PN600
I put it to you that indeed no electrical employees took any action that day. What do you say to that?---That may be the case.
PN601
Where you say all Downer employees, that may - - -?---Because of the difference between the companies, because of the difference in the employer-employee relationship there with the different divisions, that may be the case.
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN602
Is it fair to say then that at times, because you're employed by Downer Energy Systems that you might not be aware of what's happening with Downer Engineering Power?---No. Generally it's because of the union based activity rather than the employer .....
PN603
Okay, but sometimes you may not be aware of what's occurring?---An issue with payroll, for instance, within Downer Engineering Power may not come directly to me.
PN604
You say that in relation to the alleged industrial action on 14 April that you might be mistaken, it might not be all Downer employees. Is it possible that you've been mistaken in other circumstances?---I would assume not.
PN605
You can say with satisfaction that, despite your concerns about your evidence in relation to 14 April, that all other instances in your evidence are correct?---I would assume it to be true and correct to the best of my recollections.
PN606
Sorry?---To the best of my recollections.
PN607
But those recollections have been mistaken in the past?---You would have to confirm that.
PN608
You could be mistaken about 14 April, you could have been mistaken about Mr Hughes-Owen?---In regard to, you're saying CEPU members, we would have to review that.
PN609
You might be mistaken about some of these alleged instances involving CEPU members?---Generally not.
PN610
But possibly in relation to some specific ones you might be?---It would have to be confirmed.
PN611
Who would that be confirmed with?---I believe there would generally be some other information available.
PN612
On 6 May you say that you were advised by the shops stewards, you can't recall who, there would be a stop work meeting of CFMEU and AMWU members of the workforce at 7 am in the contractors' car park. You then go on to say that:
PN613
I was also advised by the CEPU shop steward -
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN614
You can't recall who:
PN615
that CEPU members would be holding a meeting at 11 am that day.
PN616
Who was the shop steward that advised you of that?---I think I said I can't recall.
PN617
Are you sure it was the CEPU shop steward?---They were the only employees left on the project.
PN618
In relation to the national day of action on 30 June, did all CEPU members attend that industrial action or did all CEPU members not
attend work that day?---I can't recall. There may have been a couple of employees turned up part-time that day.
I can't - I can't actually recall but I do seem think there was a couple turned up.
PN619
You don't know how many employees returned to work on that particular day?
---No.
PN620
But there was certainly some, though, wasn't there?---There may have been some employees.
PN621
Those that returned to work, would they have been away for perhaps three hours?
---No, I can't recall the definite times, but I believe around lunchtime would have been the time of arrival or close to that.
PN622
Are you an electrician yourself?---Once removed.
PN623
You used to have a licence but you don't have one any more?---Correct.
PN624
Did you used to have a licence in Western Australia?---No.
PN625
You're aware of the licensing system in Western Australia, though, aren't you?
---Not fully, no.
PN626
Are you aware that you need to have a licence to do electrical work in Western Australia?---I would believe that would be the case, yes.
PN627
On or about 26 July a technical adviser from a company providing equipment was working in the live terminal box. Is that correct?---No, that's incorrect.
PN628
He wasn't working in the live terminal box?---No.
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN629
What was he doing in the terminal box?---The terminal box, I believe, from the advice given, was a thermo coupling junction box or similar.
PN630
What was he doing?---We have a consortium agreement with Mitsubishi Australia on the project whereas they provide the gas turbine generating components of the cogeneration plant and we provide the HRSG engineering, construction project management and for the total construction of the project. Under that agreement Mitsubishi have certain requirements to oversee and actually implement the commissioning of their machinery. It's quite expensive equipment, and as such they have various technical advisers whose job is to ensure that the equipment is commissioned technically correctly, also oversee that.
PN631
What precisely was he doing? Was it a thermo couple - what was it called?---I can't tell you the exact precise work he was doing, but as advised by and agreed by all, the work falls within the technical adviser's scope .....
PN632
Is it fair to say that he was screwing and unscrewing the terminals? Is that correct?---He may have been unscrewing a terminal.
PN633
Isn't it true that screwing and unscrewing terminals is work for which someone needs a licence in Western Australia to do?---Not correct, not if he has to put in a measuring or metering device or as part of that commissioning process. It's something that there is a bit of a misunderstanding probably with people inexperienced in this particular type of industry. We have that on the mechanical side as well where, as I said, we do have some very expensive equipment there with very stringent warranties and performance guarantees on, and the technical advisers who are employed by those major companies to ensure that equipment operates and functions correctly, have a real need for input into that process in that regard.
PN634
Have you spoken to the Electrical Licensing Board as to whether that sort of work falls within the scope of electrical work for which a licence is required in Western Australia?---I don't believe that we're required to.
PN635
No, but have you spoken to the Electrical Licensing Board to discuss the issue with them?---Not at all.
PN636
No?---No.
PN637
Would you have any reason to disagree with an assertion or with evidence from licensed electricians in Western Australia that indeed that work does require a licence?---I wouldn't commit to anything on that until - - -
**** WAYNE DAVID CAREY XXN MR EDMONDS
PN638
So you're not sure?---I believe I know where we're standing.
PN639
Are you aware of any additional industrial action occurring recently on the site involving Downer's employees?---Since the last entry on the statement you're referring to?
PN640
The last alleged action involving Downers was on 2 August 2005. Are you aware of anything since then?---No. We've had a few internal issues.
PN641
Resulting in industrial action?---We've had action taken on site, yes.
PN642
You haven't provided any evidence on that, though, have you?---No. My evidence was completed to the last date of entry there.
PN643
Are you generally satisfied that the disputes procedure has been complied with?
---In recent times?
PN644
In recent times?---We've seen an improvement in the adherence to the procedures.
PN645
Do you feel confident that will continue in the future?---Stage 1 of our project is nearing completion and we're moving through a phase of retrenchments. I would anticipate that over time we'll see an end to the project and it should go down smoothly.
Thank you.
<CROSS-EXAMINATION BY MS SCOBLE [11.15AM]
PN647
MS SCOBLE: Thanks, Mr Carey, I've just got some questions to clarify the evidence that you gave in your statement. You just told my friend that stage 1 is nearing completion. Can you tell me what the expected completion date is, please?---Wouldn't everyone like to know. We've had a struggle to get the place to this point but the commissioning takes a long time which doesn't involve the majority of the workforce so that will be a longer break than what, you know, we're talking about having the majority of the workforce there for, but definitely in regard to contractual completion dates would be towards the beginning of the new year.
PN648
The beginning of the new year, okay?---Yes.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN649
I've had a look at your statement and at paragraph 52 you said there are approximately 45 days of time lost. Do you mean 45 days of lost time due to industrial action?---That's a combination of - when we say industrial action, in my statement refers to actual unpaid lost time. We also have had a lot of industrial action we've actually paid for the lost time and that's equated in that as well. That's idle time that we've paid for.
PN650
Unpaid lost time would be a different figure to the 45?---It may be slightly less.
PN651
Just going through your statement I counted about 25 days of incidents that appear to be unpaid lost time. Would you agree that would be about right?---Look, I would have to do a review.
PN652
You did say that your statement is correct?---I think it reasonably reflects the time.
PN653
You know the CFMEU site delegates that work for Downers, don't you, Mr Carey?---Mm.
PN654
Would you say you've been able to resolve issues via the disputes procedure with those delegates on occasions?---As I said to your colleague, of late it has been improved.
PN655
If I could go through some specific dates with you now, in relation to 1 August, which was where there was a bomb threat received at the CFMEU Mining and Energy Division office in Collie, you say the employees were notified of the threat at about 12.30 pm. Is that right?---That's correct.
PN656
Were you aware what time the threat was actually received in Collie?---Only by the notification that was received from Alcoa which I believe everyone received a notification of a process there.
PN657
Do you know what time that was received?---I'm only - trying to recall from my note, I think it was early in the morning.
PN658
When you say early in the morning, before work started?---Five or 6 am I think it was, around that time.
PN659
When was the threat brought to your attention?---I was notified at about noon.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN660
You would agree with me that there's a significant time lag to find out from 6 o'clock to noon?---There were similar questions from the workforce as well as yourself in regard to that. We're only the - you know, we're the people that manage the people there and we don't know what processes are going on between the police and the authorities between that time and from advice there was experts involved and so that timeframe may be reasonable in those regards.
PN661
It's about five hours though, it's a pretty long time you would have to agree?---It would be, yes.
PN662
In those five hours, do you, Mr Carey, have knowledge that the bomb threat procedure that was put in place following the incidents
in March, was followed?
---In regard to a credible bomb threat procedure and a hoax bomb threat procedure I think is where the difference is.
PN663
You're saying there's two different procedures, one for a hoax and one for a credible threat?---Well, there is a method to deal with a bomb threat and a hoax is a hoax.
PN664
I put it to you that there's one bomb threat procedure, there's not two?---Correct, but a bomb threat or a hoax are two different things.
PN665
If I could move on now to going back to February, on 7 February in particular where there's an issue in relation to a CEPU flag, are you able to confirm that the CFMEU were not involved in that issue?---I believe that's the case.
PN666
I take you to 16 February now where the incident where you slammed some certified agreements down on the table, do you acknowledge
that you made a written apology coming out of that, what happened on that day. Is that right?
---I confirmed it in writing, yes.
PN667
You have to admit that sort of conduct, you're not really doing a very good job of dealing with the issues that are brought to your attention pursuant to the disputes procedure, are you?---I would refute that.
PN668
So you think it's acceptable to slam certified agreements down on the table and yell at people?---Well, in the circumstances, when there is a procedure that clearly needs to be followed and there's a crossover between the management of safety issues and industrial issues in regard to the systems in place that are there to control those things, when there is a blatant disregard for those procedures, it does become frustrating and, you know, to put a bit of paper on the table and tap it with your hand isn't an offensive gesture but it seemed to take these people by surprise and for that I offered an apology.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN669
I suppose my point is that the issues could have been resolved if you had remained calm, couldn't they?---No. There's a clear record of unresolved issues there.
PN670
You say that's got nothing to do with your conduct on that day?---My conduct was trying to convince both the stewards representing the unions and the safety reps representing all of our members in regard to safety issues. There's a clear definitive line between the two which had become very clouded.
PN671
I put it to you, Mr Carey, you didn't do a very good job on that day?---I believe from my perspective I did.
PN672
I'll take you to 10 March now when there was the first bomb threat on site. I put it to you that there was actually no procedure
in place at that time, was there?
---We're a contractor, one of many on the Alcoa Total Refinery site and there is various Alcoa policies and procedures that all
contractors have to adhere to. With that, we also have to report directly to our client, who is Alinta, on our particular plot within
that site and we're responsible to take directive from them. We received directive from them in how we were to manage that. In
regard to the actual procedural matters within Alcoa I can't comment.
PN673
Okay, but there was no procedure for a bomb threat, was there?---I can't answer that if there was or wasn't at that time.
PN674
Do you know that there was a procedure developed subsequent to that incident in relation to bomb threats?---I know there was a procedure developed afterwards. I don't know whether there was one preceding or not.
PN675
That a procedure was developed subsequent would suggest that there wasn't one on that day?---It may suggest that. It also may suggest that the procedure was revised but I can't - I can't confirm that.
PN676
If the procedure was revised it would suggest that the original procedure was deficient, wouldn't it, Mr Carey?---Procedures always are - are up for change, improved, correction or whatever and move with the change of times and all that so I would expect the procedures are regularly reviewed and improved or whatever.
PN677
In relation to 9 April, there was an alleged stoppage in relation to a death of an employee engaged on another project. Is it correct that following this incident that some discussions were held with you to resolve the general policy as to what will occur when a worker is killed?---I can't recall if it was before or after. I know we had discussions with the stewards in regard to that particular type of situation.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN678
It would be correct to say that those discussions resolved that issue?---Correct, yes.
PN679
In relation to 12 April where there's an incident in relation to a scaffolding supervisor working on the tools, I put it to you that numerous discussions were held with you about that issue prior to 12 April?---The issue of supervisors working on the tools had been brought to me previously.
PN680
In relation to that particular supervisor?---That's correct.
PN681
Can you remember approximately when that was, that it was first brought to your attention about that supervisor working on the tools?---There had been a lot of unsubstantiated issues brought to me in relation to the supervisor which we couldn't progress because of the nature of the issue.
PN682
When you say unsubstantiated issues, I'm just talking about the issue of that scaffolding supervisor working on the tools that was brought to your attention before the 12th. That's correct, isn't it?---Correct.
PN683
Was that a week before, two weeks before, a month before?---I can't confirm. It may have been a week, it may have been two weeks. I just - I cannot recall.
PN684
You say that there was a unapproved meeting held on that day. I actually put it to you that that meeting was paid and approved?---Always - well, when I say always, I'll retract that, but there had been a history of meetings always unapproved and afterwards there has been a request for payment and it's only after that request for payment was the decision made, but the approval was not granted before the meeting.
PN685
You're saying the meeting was paid. Is that right?---I can't recall that.
PN686
Is it possible that it was paid?---It may be possible. That's correct.
PN687
I put it to you also that the project incentive payment, which is withdrawn when there's an instance of industrial action, however
short, was still paid for that week?
---That may be correct but I'll also confirm that that is always after these meetings, which are unauthorised and unapproved, and
then in regard to the payment of it, it's always made in regard to - to keep the workforce on site we would suggest payment be made.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN688
It seems a bit of a confusing message though, if you pay for meetings that you say are unauthorised, you're paying project incentive,
paying it for a week - - -?
---What you have there, if I may say, is a record of recorded industrial action. What you don't have there is the record of the unrecorded
industrial action. In regard to the amount of times that - - -
PN689
We're not talking about what's unrecorded, we're just talking about your evidence?
---But you're talking about the process of paying for a meeting when we're requested for payment afterwards to maintain some industrial
harmony.
PN690
Okay, that's fine. So you're saying it's possible that meetings are paid, even though you consider them unauthorised?---In some circumstances.
PN691
Perhaps it's not only 12 April where that has occurred?---Correct.
PN692
In relation to 14 April, this is where there was an issue with high winds and general safety concerns on the site. Is it correct that the safety adviser involved in that is a Ms Jacobs. Is that correct?---She's our OH&S representative on the project, yes.
PN693
She's an employee of Downers. Is that right?---That's correct.
PN694
A management employee?---Correct.
PN695
Is it correct that workers on that day complained that Ms Jacobs was belligerent and abusive when she arrived on site?---I can't recall that.
PN696
Was there any complaint made about Ms Jacobs' manner or conduct in relation to that day?---There was a - from my recollections there was a request for an apology to one safety representative from Ms Jacobs.
PN697
I'll put it to you, on that day the Downer's elected safety adviser brought to the company's attention a dangerous situation due to
high winds. Is that right?
---We have a - we're prone to high wind in the area and we have a process in place for the management of the high winds.
PN698
Did the safety rep on that day bring the high winds to Downer's attention?---I would assume that they did.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN699
Would it be correct to say that workers made themselves available for alternative work in accordance with the procedure because of
the high winds on that day?
---I can't confirm that, no.
PN700
Is it possible that that's what occurred, Mr Carey?---Generally not. We have in place a procedure for high wind where we monitor it and we advise people at the pre-starts every day. The wind actually is advised by all of the locals to be quite rife around that time of year so it's well known. So we address it at pre-start meetings regularly and we request throughout the day that the site be left in a safe condition with the eminent winds coming but yet when we return to work the next morning, people say, "We can't go out there because it might be dangerous" and so we put in process a place where the safety representatives will come and discuss the wind situations with us. We'll go and walk around the site and after a walk around then they're happy to go on the job.
PN701
You're saying that didn't occur on this day?---That does occur.
PN702
Did it occur on this day?---I can't confirm that.
PN703
You agree that the high winds were brought to your attention, you agree that Ms Jacobs, who's, I think you say, an OH and S representative was involved. Is that correct?---Correct.
PN704
It sounds like, Mr Carey, to me that the disputes procedure has been followed?
---I can't confirm that in that regard, no.
PN705
I take you to 6 May now where you say in your statement there was a meeting of the CFMEU and AMWU at seven in the contractors' car park and the CEPU at 11 o'clock on that day. Would that be another instance where the meeting was authorised and paid or a meeting unauthorised and paid?---I can't recall exactly that date but I would assume that any meeting in the car park, they've left the site so it's unpaid.
PN706
Are you aware of any CFMEU members attending for work the following day, on 7 May?---If my memory serves me correctly, that would be Saturday.
PN707
Yes, that's correct?---Yes, and there was some CFMEU members returned - or reported for work that morning.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN708
Do you know if it was all the CFMEU members that were rostered on for that day?---Our current system of overtime is that - or standard overtime hours is that Saturday morning is rostered overtime for all employees.
PN709
The CFMEU members that were rostered for overtime that day, did they all attend for work?---Not all.
PN710
You say in your statement, Mr Carey, that there was site-wide strike action between 11 May and 13 May following an emission from a tank on 10 May. Is that right?---I haven't got my statement here but if you're reading from it, I would say that's correct.
PN711
I'm not trying to trick you. I put it to you, Mr Carey, that you came to the Commission in relation to that?---Look, I can't recall. I know that I have been to the Commission on a few occasions for proceedings.
PN712
I was at the Commission on that day, I can say that you were there. Do you agree at that Commission conference the Deputy President
identified some issues that the company needed to perhaps take account of in relation to the emissions?
---When you talk of the company, it's not Downer Energy Systems you're referring to.
PN713
The contractors, sorry, I should say?---I can't - I can't recall the details of the conference.
PN714
Would you disagree that the Deputy President made it clear that safety was a two-way process?---It always is a two-way process. I agree with that.
PN715
Do you remember that being said in this Commission?---Look, I can't recall the exact words but I know that we discussed safety as the centrepiece.
PN716
I take you now to 14 June. In your statement you say there were safety concerns raised in relation to a spill that morning and that shop stewards, including Mr Douglas, Hughes-Owen and Lovegrove raised with you that the safety showers on site were inadequate. Do you recall that?---Yes.
PN717
Do you recall that additional safety showers were requested?---At that stage there were no safety showers in that area.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN718
It's correct that it was requested by the delegates that safety showers be installed in that area. Is that right?---Yes, a safety shower requested by the industrial representatives, yes.
PN719
What did you say about that request?---We were - part of our process is to install safety showers under the contract and we were able to then install a safety shower.
PN720
When were those showers installed, was it that day?---Soon afterwards there was one shower installed, yes.
PN721
When the shower was installed, did work continue as normal?---I believe there was some negotiations beforehand.
PN722
I'm talking about when the shower was complete, ready to go, installed, work continued as normal. Is that right?---Well, our employees actually installed the shower as part of the construction phase, yes.
PN723
There was no stoppage of work following the installation?---That's correct.
PN724
I take you to 30 June now which is in relation to a national day of union action. Were you given prior notice of non-attendance by employees on that day?---I can't recall individuals advising me that it was a - I was notified that the day was a national day of action and we wouldn't know who we would have at work on that day.
PN725
I put it to you that actually some employees put in requests for leave for that day prior to the 30th?---That may be the case.
PN726
Would people put in these requests through you?---Generally they do, yes.
PN727
You're saying that that occurred?---I would say that there was some leave forms. There generally is when there's industrial action looming.
PN728
Those employees that applied for leave, you would say some of them would have been granted leave for that day?---I can't recall the mechanics of that one. I believe there was some discussion previously with the shop stewards in relation to that.
PN729
It's possible some people were on authorised leave on that day. Is that right?
---I would have to say yes but I couldn't confirm that.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN730
That's fine?---Yes. There may have been previous annual leave applications in or whatever.
PN731
5 July 2005, this is an issue in relation to some subcontractors working on the rostered day off. Isn't it true that there was an informal agreement between yourself and the shop stewards that there would be no work on RDOs except where agreed in advance and where it was necessary or safe for the main contractors or workers to be out of the way?---I perhaps clarify it by saying there was a prior agreement may have been reached with the previous manager who was advised by the shop stewards that they would not work the RDOs, that being contrary to the terms of the agreement and so from my perspective, is the terms of the agreement apply and work can proceed on an RDO.
PN732
You're saying that was with the previous manager. Is that right?---Correct.
PN733
That was the manager that was there prior to you starting in January. This issue didn't come up until 5 July?---It's been - it had been advised to me that people don't work their RDOs.
PN734
Between January and July, was there any other instances of work occurring on RDOs?---Not that I'm aware of.
PN735
In relation to 11 to 13 July, you say on 12 July AMWU and CFMEU members failed to return to work after their smoko break and that was in relation to Alcoa's lack of response and communication in regard to the car park dusting incident on 6 July and the management of that issue. I put it to you that this issue had been raised with you prior to 12 July?---I was aware of the issue.
PN736
That's what's required according to the disputes procedure, isn't it, that you be made aware of it?---Correct, but you're talking about an issue that relates to the refinery in general, not a direct issue that Downer Energy Systems management can produce a resolution for.
PN737
According to the disputes procedure it was raised with you?---Correct, and we're in the process of providing the employees with every bit of information that we could in regard to the matter.
PN738
I've got nothing further for this witness, your Honour.
**** WAYNE DAVID CAREY XXN MS SCOBLE
PN739
THE DEPUTY PRESIDENT: Yes. Mr McLane.
MR McLANE: Thank you, your Honour, I'll be fairly brief. If the witness could be shown the exhibit R1 please, sir.
<CROSS-EXAMINATION BY MR MCLANE [11.43AM]
PN741
MR McLANE: Mr Carey, I would just ask if you would just have a bit of a flick through. The first page, I think you've heard the explanation before in relation to this document, breaking down the industrial action by the two companies or alleged industrial action; TCC first page, Downer on the second, third United KG, Thiess, whole site - I have left off that whole site, your Honour. The action of 30 June that's slipped off, so there's one more to add on there, and then Westerns are on the back. I would just like you to have a look at the whole site first and if we add to that 30 June, I'm not asking you to physically write it in but were you affected by those alleged stoppages, as Downer, I mean?---Correct, yes.
PN742
Are there any others that were whole of site that you've missed out on? I'll take you to the Downer specific a little bit later?---Just on review, I can't recall if that's the case or not.
PN743
On 9 April, death of an employee elsewhere. You'll see that on the page whole of site?---Mm.
PN744
And I think you've said or agreed that that was a Downer employee?---Unrelated to our project though.
PN745
Yes, but an employee of Downer's nonetheless?---That's correct.
PN746
I put to you that that employee was well known by other Downer's employees and also well known within the industry?---Not being a local, I can't confirm that but I was advised he was known to some members of our electrical group there.
PN747
Because of your, you know, relatively short time, you may not be able to answer, but I'll put to you that this particular person,
deceased now, had worked around the traps in the north-west and all over in the industry. Do you agree with that?
---Only from hearsay but that would be the case.
PN748
You haven't heard anything that causes you to take exception?---No.
**** WAYNE DAVID CAREY XXN MR MCLANE
PN749
I take it we're about the same vintage?---Yes.
PN750
A reasonable length of time in the mechanical, maintenance, construction industry?---Correct.
PN751
Is it unusual for employees to stop work in the industry in those situations?
---Generally in regard to the site as a recognition policy, yes. Sites may have a recognition - - -
PN752
It's a form of respect, isn't it?---Correct.
PN753
It's not the first time you've come across it in your history?---That's true.
PN754
There were never any allegations levelled towards Downer about responsibility or anything like that, was there?---In regard to the death?
PN755
Yes?---Not that I'm aware of.
PN756
If I can just take you now to the Downer ones, there's seven, I think, if my maths are correct there, that involve the - there's one there that involves the CFMEU as well as the AMWU. The others are the AMWU and CFMEU with the exception of the one dated 6 May, which is AMWU specific. Can I just get you to have a look at that one?---Mm.
PN757
Can I ask you, has the issue of emissions at the site been something that raises its head fairly regularly?---I'm aware of this incident and another incident.
PN758
Have been around the Alcoa sites long enough to become aware that not only is there concerns of it in the workforce but the community generally?---Of late, I'm aware of community concern.
PN759
Did you see Four Corners?---I heard of it.
PN760
On this particular occasion, were the Downer employees allowed to knock off and wash their vehicles?---I believe that to be the case on 6 May.
PN761
Yes, 6 May. So that was with the company's consent?---That was a direction from Alcoa.
**** WAYNE DAVID CAREY XXN MR MCLANE
PN762
But with Downer's consent?---Correct.
PN763
Thank you for that. Are you aware of Mr McCartney making some efforts to try and have things a little bit more civilised on the site in recent times?---In the most recent history?
PN764
Yes?---That would be the case.
PN765
Are you also aware of special efforts, I suppose, by the Deputy President in relation to maybe trying to get control on the site or
bring about a more
civilised - - -?---Well, having been a part of the proceeding, I'm aware of those actions, yes.
PN766
Have those actions borne fruit over the last month or so, from where Downers sit?---In regard to the stability on the site, yes.
PN767
Thank you for that. No further questions, sir.
PN768
THE DEPUTY PRESIDENT: We might take a break for five minutes.
<SHORT ADJOURNMENT [11.51AM]
<RESUMED [12.08PM]
THE DEPUTY PRESIDENT: You are still under oath, Mr Carey.
<RE-EXAMINATION BY MR DAVIES [12.08PM]
PN770
MR DAVIES: Mr Carey, during cross-examination you gave some figures of Downer Engineering Power electrical employees on the site. The figure you gave was 11. Where on the site are those 11 electrical workers working? When I say where on the site, what I mean is, are they spread across both the Alinta Cogen Plant and Pinjarra Efficiency Upgrade or are they just Alinta Cogen?---They're purely Alinta Cogeneration workers.
PN771
Are there any Downer Engineering Power electrical workers on the Pinjarra Efficiency Upgrade?---Correct.
PN772
Do you know roughly how many?---No, I wouldn't know what numbers they have there.
PN773
You were cross-examined and provided with a document which I think you indicated suggested Mr Hughes-Owen may not have been at work on 7 February working. Is it ever the case that delegates attend site on their rostered days off to deal with union issues?---I couldn't say yes or no. I have witnessed them here on days off.
**** WAYNE DAVID CAREY RXN MR DAVIES
PN774
You gave some evidence about action which resulted following the death of an employee. I think you were questioned and confirmed
that the employee who had died was not working on the Alinta Cogeneration Project but had been on the Pinjarra Efficiency Upgrade.
Do you know whether his death was work related?
---I couldn't confirm yes or no but I don't believe it was work related.
PN775
You were asked some questions about the state of industrial relations on site since 2 August and you indicated that there had been some action taken on site since that date. Are you able to clarify what that action was or has been?---Some of the action has been related to the use of subcontract labour.
PN776
What has been the action taken?---The various Downer Energy employees are not content with Downer using any subcontract labour on the project and want to see that work confined to direct Downer employees.
PN777
What did they do?---In regard to the current - - -
PN778
MR EDMONDS: Sir, I would just like to establish whether the applicant is intending to rely upon these alleged further instances of industrial action to establish their case, because if it is, it certainly wasn't contained in the particulars that were provided to us.
PN779
THE DEPUTY PRESIDENT: It was raised in cross-examination though, Mr Edmonds.
PN780
MR EDMONDS: It was raised in cross-examination, sir, but certainly those particulars hadn't been provided to us and these particulars were provided - - -
PN781
THE DEPUTY PRESIDENT: They wouldn't have been provided to you because they probably weren't being relied on, but they were raised in cross-examination so I'll take that into account, Mr Edmonds. Proceed, Mr Davies.
PN782
MR DAVIES: Thank you, your Honour.
PN783
If you could proceed please, Mr Carey?---In regard to the supplementary subcontractor labour we're using, there's discussions ongoing about where they fall in line when Downer are retrenching their direct employees, the issue of subcontractors working RDOs as alluded to before. There was a recent issue in regard to a safety concern where there was a - the labour remained in the crib rooms for several hours on a working day, working outside of the resolution procedure. We're currently in discussions in regard to some payment of time on a - when the employees left work and are requesting payment for that time.
**** WAYNE DAVID CAREY RXN MR DAVIES
PN784
You also were asked some questions about the process of phase 1 finalising and I think your evidence was no one knows the exact date but there's a phase down process. I presume if there's a phase 1 Alinta Cogeneration Project, the number 1 is there for a purpose. Is there anything that's going to be happening after phase 1 is completed?---Yes. We're currently under way now with civil works for a stage 2 which adjoining the stage 1 area. The civil work has commenced on that.
PN785
You were asked some questions about industrial action which occurred on 12 April 2005. That industrial action was said by you to have arisen because of a supervisor working on tools. Had Downer management allowed that supervisor to work on tools if he so required?---We don't permit supervision to work on the tools.
PN786
If a supervisor works on the tools, is that inconsistent with any undertaking contained in the certified agreement with any of the unions?---It doesn't clearly define supervision on the tools.
PN787
Finally, I wanted to ask you some questions about - I think there were some general questions you were asked about various stoppages on site. You've made a statement which contains a number of instances of stoppages on the site. Am I correct in suggesting they set out your recollection of unauthorised stoppages on site?---Yes, correct.
PN788
That in relation to those stoppages, your recollection is them having been unpaid?
---That's correct.
PN789
That unauthorised and unpaid stoppages is as complete as you were able to make it?---Yes.
PN790
No further questions, your Honour
THE DEPUTY PRESIDENT: Yes. Thank you. You are excused, Mr Carey.
<THE WITNESS WITHDREW [12.15PM]
PN792
THE DEPUTY PRESIDENT: It's my intention to adjourn now and resume at 1.30. Does that suit people? I'll adjourn then.
<LUNCHEON ADJOURNMENT [12.15PM]
<RESUMED [1.39PM]
PN793
THE DEPUTY PRESIDENT: Yes, Mr Davies?
PN794
MR DAVIES: I think we are up to our next witness, your Honour. Can I call
Ms Spencer?
PN795
THE DEPUTY PRESIDENT: She's given her evidence hasn’t she?
PN796
MR DAVIES: Yes, she is to be cross-examined.
PN797
MR EDMONDS: I would like to request as to who we cross-examination next, sir, and - - -
PN798
MS SCOBLE: I don't mind, Helen is fine.
PN799
MR DAVIES: Helen Spencer, sir.
PN800
THE DEPUTY PRESIDENT: Okay. I am just wondering who is running these proceedings, it sounds like anyone who wants to.
PN801
MR DAVIES: It's an unusual situation, your Honour, with cross-examination taking place at such different dates, I wasn't quite sure - - -
MR EDMONDS: I'm certainly happy to take charge if you'd like, sir.
<HELEN SPENCER, SWORN [1.40PM]
PN803
THE DEPUTY PRESIDENT: Yes, Mr Davies?
PN804
MR DAVIES: Your Honour, I have only that housekeeping matter that I referred to earlier which is to tender the further statement of Helen Spencer which was produced in accordance with the directions.
PN805
THE DEPUTY PRESIDENT: Yes.
PN806
MR DAVIES: I might hand that up to the Commission and to Ms Spencer. The unions already have copies from last week.
PN807
THE DEPUTY PRESIDENT: Ms Scoble.
PN808
MS SCOBLE: Thank you.
THE DEPUTY PRESIDENT: I think Mr Davies wished to get it marked.
<EXAMINATION-IN-CHIEF BY MR DAVIES [1.40PM]
PN810
MR DAVIES: That document that you have before you, Ms Spencer, I presume you are familiar with it?---Yes.
PN811
And is it true and correct to the best of your knowledge and belief?---It is.
I tender that document, your Honour.
EXHIBIT #A6A FURTHER STATEMENT OF HELEN SPENCER
PN813
MR DAVIES: Thank you, your Honour.
THE DEPUTY PRESIDENT: Yes, I think, now you will get a free run, I think.
<CROSS-EXAMINATION BY MS SCOBLE [1.41PM]
PN815
MS SCOBLE: Thank you, your Honour.
PN816
Thank you Ms Spencer. I am just going to ask you some questions that refer back to the original statement that you made. We'll start with 1 August 2005 which is when there was bomb threat. If you could please tell me - sorry, in your statement you say:
PN817
I immediately asked two UKG administration staff to help me pass on Martin's instructions to the supervisory staff but not the reasons for the instructions. Those instructions involved what's to happen with the bomb threat
PN818
Is there a reason that the threat had to be kept secret?---I assume the reason that the hoax was - that the reason for the supervisory staff being asked to meet with Mr Martin was not divulged at that stage, was to ensure that everybody got the same information at the same time in an orderly fashion.
PN819
Okay. So you think that it's acceptable in some circumstances to hide the truth from workers in the context of a safety issue?---I don’t think the truth was being hidden from anybody. This is about the effective communication.
PN820
Effective communication by not telling people what was going on?---Well, they were told what was going on. What was going on was to proceed to ….. for a meeting with the project director.
PN821
You say in your statement that Mr Martin's telephoned you at 11.45 am in relation to the bomb threat that was received by the CFMEU mining and energy division at 6 am. That's a significant lapse of time, isn’t it?---I think it was really regrettable that the CFMEU didn’t notify people far earlier than they did.
**** HELEN SPENCER XXN MS SCOBLE
PN822
But it's a significant lapse of time between the bomb threat at six and Mr Martin's letting you know at 11.45?---My understanding is Alcoa wasn’t notified by the CFMEU until well after 9.30 when their office opened and they picked up the hoax call. He reported it to the police. I really can't remember and I would be more comfortable if I had my statement in front of me, but from memory it was round about an hour elapsed from the time the CFMEU actually picked up the hoax call which I believe was around 9.30, relayed that to the police who then relayed it to the Pinjarra police, who then relayed it to Alcoa, who then relayed it to contractor management. It was about an hour, an hour and a quarter elapsed. I think that it was pretty good going.
PN823
Okay. But in the meantime and this is something that is in your statement as
well, the employees - - -
PN824
THE DEPUTY PRESIDENT: You might give the witness a copy of her statement, if it's going to be referred to?---Thank you.
PN825
MS SCOBLE: If I can take you, I am at paragraphs 50 onwards. I want to refer specifically now to paragraph 55?---Yes.
PN826
Where you say:
PN827
Mr Emery advised me he was aware that bomb threats had been made
PN828
?---Yes.
PN829
So I mean do you think it was acceptable that employees found out about the threats before the procedures were activated?---Well, Ms Scoble, like I said, if the CFMEU doesn’t pick up the message until some three and a half, four hours after it's been left - - -
PN830
I don’t work for the mining and energy division by the way so I'm just asking you a question about what actually happened as far as employees finding out?---As far as I'm concerned from what I can see, people behaved responsibility to convey the message about the bomb hoax in a way that was designed to reassure people and ensure that the same people got the same information in the same way at the same time.
PN831
I understand what your position is but I just want you to answer the questions that I ask, is that all right?---I thought I was.
**** HELEN SPENCER XXN MS SCOBLE
PN832
Well, okay. So what I want to ask you again is, do you think it was acceptable that the employees found out about the threat before the company had notified the employees about the threat? I mean it's a yes or no answer there?---I don’t know that the employees did find out about the threat.
PN833
Well, in your statement at 55 it says:
PN834
Emery and I had a brief discussion during which he advised me he was aware that bomb threats had been made.
PN835
?---Well, John Emery is an employee, not the employees.
PN836
So you're not going to answer the question that I'm asking.
PN837
MR DAVIES: Well, your Honour, I object to the question being pressed any further. There could be any myriad of underlying assumptions behind the question as to whether or no it's acceptable and quite frankly it's not very helpful for the Commission for Ms Spencer to have to set out a response for any number of different assumptions, you know, well, this happened this way it would be unacceptable but if it happened this way, you know, for the union to tell Emery but not tell us in time is unacceptable, but if Mr Emery found out through some meeting of safety people that's acceptable. There could be any number of answers. It's not a helpful question.
PN838
THE DEPUTY PRESIDENT: Ms Scoble, if you could just ask the question and any inferences to be drawn from the nature of the answer I will draw.
PN839
MS SCOBLE: That's fine, thank you, your Honour, and I'm happy to move on.
PN840
In relation to 1 August and what occurred on that day you would have to admit that there was a failure on behalf of United KG to communicate effectively with its workforce on that occasion, wouldn't you?---No, I would not.
PN841
Okay. Do you think that if communication had been effective on that day the dispute could have been avoided?---I believe communication was effective and that the dispute was completely unnecessary in all the circumstances.
PN842
If I can take you to paragraph 75 that's headed December 2004, you mentioned in that section speaking to delegates, union delegates
in relation to a stoppage on that day. Can you tell me if you spoke to any CFMEU delegates or officials on
9 December?---On 9 December I had been at work for - I think I started on the 7th so it was no until really people - I was basically
trying to become accustomed to the site at that stage. From my records I don't recall being involved prior to
13 December.
**** HELEN SPENCER XXN MS SCOBLE
PN843
On 13 December did you speak to any CFMEU delegates or officials in relation to the stoppage?---Not according to my records.
PN844
If I could just take you now to 10 March which is paragraph 112, you say at paragraph 112:
PN845
There was no emergency evacuation procedure for bomb threats in place at that time.
PN846
Is that correct?---That's right.
PN847
And you also say that what happened at that time showed that there was room for improvement?---That' right.
PN848
And you're aware that following this incident that steps were taken to put in place a safety committee?---Yes
PN849
And prior to this incidence there was not a functioning safety committee in place?---There was no a whole of project safety committee in place. There were safety committees but not one that attempted to cover all contractors, the whole project and Alcoa.
PN850
And you're aware in relation to the UKG EBA that the safety dispute resolution clause provides for a safety committee to be involved in dispute resolution, is that correct?---It provides for the relevant safety committee to be involved from memory so we have a number of safety committees because we have a number of projects, so customarily if we have an issue and if the safety dispute resolution procedure is followed, which it isn't, that several times when I attempted to get people to use that procedure it's the relevant committee that - - -
PN851
I'm just asking about the EBA. Is there a provision in the EBA for a safety committee, that's all I need to know?---Well, there are provisions for safety committees, for relevant safety committees to be involved and those relevant safety committees have been in place for UKG from day one.
PN852
Okay. And so the relevant safety committee would be a whole of site safety committee, wouldn't it?---Well, it depends what the issue is.
PN853
But for a whole of site issue the relevant safety committee would be whole of site - - -?---I would agree with that, yes.
**** HELEN SPENCER XXN MS SCOBLE
PN854
If I can take you to paragraph 123, mass strike action over emissions, I want to ask you did you speak to any CFMEU officials or delegates about this incident at that particular time?---Not on the Saturday through to the Monday. We were working with Alcoa and the employees and the guys in that particular building were comfortable with those outcomes.
PN855
And who were they?---They were the employees at the time in the building 44/45 part of the project.
PN856
So you're saying you didn't speak to any CFMEU officials or delegates?---No, because we had no stoppage arising at that time from that particular incident. That was resolved quite swiftly by three way consultation.
PN857
So you're saying that some issues do get resolved by following dispute procedures?---No, the disputes procedure wasn't followed. It was never a matter that even involved union people. It was basically an issue of concern to UKG management. It was certainly an issue of concern to our workforce in that area and it was of concern to Alcoa because something that - information that should have been systematically relayed hadn't been so as in my experience happens, everybody took it very seriously and there was no need for a dispute procedure or even a dispute. It was just fixed.
PN858
But people in the workforce are union members, aren't they?---Most people are, yes.
PN859
I mean you have to admit the union is involved in that extent?---If you want to press the point that yes, everything the workforce because they're union members involves the union, I guess you're free to do that. I don't have a view.
PN860
You go on to talk about 22 March in paragraph 27. Can I ask if you spoke to any CFMEU officials or delegates in relation to the issues you identify there?---I don't believe I did on that day. I certainly attended - actually let me read through this because - - -
PN861
Yes, sure. I mean I don't see anyone mentioned but I just want to clarify it?
---Yes, according to this I did meet with Steve McCartney and John Emery and Trevor Trew and following that meeting we went to a meeting
with Alcoa and at that meeting secured the agreement of the refinery senior manager to meet with Steve McCartney so he could hear
the issues direct from Steve and Steve could hear the Alcoa response.
**** HELEN SPENCER XXN MS SCOBLE
PN862
But Steve is not a representative of the CFMEU?---No, he's not, no.
PN863
And none of those other people you have identified there?---No, no.
PN864
Yes, that's fine, that's all I need to know. In relation to April 2005 you talk about a demarcation issue. This is paragraph 137. You talk about the UKG metal workers, I just want to clarify who you mean by that. You mean only AMWU members?---Only the classification cover in the AMWU agreement.
PN865
Okay. So wherever you have used that statement UKG metal workers or PEUP metal workers is that ICM UKG workers covered by the AMWU agreement, is that right?---Without having - without checking every single reference but it should be right.
PN866
And similarly PEUP electrical workers or UKG electrical workers would refer to the CEPU agreement?---Yes.
PN867
Workers covered by the CEPU agreement?---Yes.
PN868
Okay, that's fine. Okay, I'm now moving on to May 2005 and in particular paragraph 158?---Mm.
PN869
Prior to that you say that - yes, in paragraph 158 you say:
PN870
The PEUP metal workers returned to work at 8.30 Tuesday, 10 May and I was told that some PEUP crane drivers were given overtime shift
on Saturday,
7 May.
PN871
That's correct, isn't it?---To the best of my knowledge, yes.
PN872
Do you know whether that was all the crane drivers or just those that were rostered, or you just don't have that information?---I don' have that information.
PN873
At paragraph 159 now, 11 May, that meeting is in relation to another emission. Your evidence goes through several incidences where there were emissions occurring. What was UKG doing to protect its workforce from those occurrences?---The workforce are issued and required to comply PPE requirements. UKG certainly ensure that through inductions and pre start briefings and tool box meetings. Employees are aware of risks and hazard management and UKG has endeavoured to work very closely with Alcoa to understand how these things occur and to ensure that where possible things are put in place to manage if not eliminate those sorts of problems.
**** HELEN SPENCER XXN MS SCOBLE
PN874
But you can understand because they keep occurring why the workforce would be concerned about it?---I can understand to a point but the information about those sorts of emissions has now been widely made available so there are times when I think the response wears a little thing.
PN875
Can I take you to Jun 2005 and the time of union rallies, in relation to 30 June isn't it the case that at least some of the CFMEU workforce had applied to take leave on 30 June?---I don't know.
PN876
You're not the person that they would apply to take leave?---No.
PN877
Who would that be?---Their supervisors.
PN878
So you wouldn't be aware if anyone applied to take leave?---No.
PN879
And you wouldn't be aware if their supervisor had approved for them to take leave?---Not the specifics.
PN880
So it's possible that some of the UKG workers that didn't attend work on 30 June were actually on leave on that day?---I'm sure it's possible. We have a significant workforce and people are on leave, somebody's on leave almost all the time.
PN881
I take you to 11 July and it starts at paragraph 167, again refer you to UKG electrical employees. I assume you mean those covered by the CEPU agreement?---Yes.
PN882
I take you to paragraph 181 and also delegates meetings. You talk about:
PN883
Requests have been for UKGs authorisation of regular delegates and that I have advised each of them that such meetings will not be authorised or be treated as industrial action.
PN884
And that's correct, isn't it?---Yes.
PN885
And have those meetings gone ahead in work time fortnightly since that time?
---No.
PN886
And are you aware that these meetings have occurred in workers own time since that time?---I'm only aware that John Emery in a conversation with me has said that he thought that it would be appropriate if they wanted to meet at lunch time in the canteen or something like that.
**** HELEN SPENCER XXN MS SCOBLE
PN887
So basically you refused the request for meetings and that refusal has been accepted by the workforce you'd agree?---They haven't pressed it in recent times.
PN888
Paragraph 183 now, you talk about work stoppage over errors in correspondence. Isn't it correct that that particular issue was brought to your attention some time prior to July 2005 as it had occurred the year before?---No.
PN889
So you weren’t give any prior notice, that it was important that correspondence go out correctly this time?---No.
PN890
You say in paragraph 191 that there's a number of issues that have been resolved without lost time - or without losing time, sorry. Have the unions been involved in any of those resolutions of issues without losing time?---You mean the CFMEU?
PN891
CFMEU, sorry?---I can't recall any that involved the CFMEU.
PN892
So you're saying every issue involving the CFMEU that's been raised has involved lost time?---To be perfectly honest, the CFMEU don't
raise issues with us. I can't think of - I would have to sit here and really think of an issue involving the crane
drivers, I just can't think of any. Most of our stuff happens with the AMWU and to a lesser extent with the CEPU.
PN893
Okay, all right. I've got nothing further for this witness.
THE DEPUTY PRESIDENT: Yes, thank you.
<CROSS-EXAMINATION BY MR EDMONDS [2.05PM]
PN895
MR EDMONDS: Ms Spencer, you say in your statement that since December 2004 the total amount of ordinary hours lost of by UKG to strike action and work stoppages has been 37,600 man hours?---It would be more than that now but at the time the statement was made that was the - - -
PN896
You have said you have calculated that:
PN897
To date the company has been losing over 11 per cent of ordinary hours due to work stoppages and strike action.
PN898
When you're talking about work stoppages, does work stop on occasions for reasons other than industrial action?---No, these work stoppages referred to in those figures are work stoppages that relate purely to industrial action.
**** HELEN SPENCER XXN MR EDMONDS
PN899
Purely to alleged industrial action.
PN900
MR DAVIES: I don't know if that's meant to be a question but Ms Spencer has made it clear she's saying industrial action and Mr Edmonds might make it clear whether that's a question.
PN901
MR EDMONDS: Well, I suppose the question I've got for you is whether any of 37,600 man hours included, for example, stoppages over safety issues which the company have acknowledged the safety issues?---Those hours refer to lost time due to industrial action. They include lost time due to industrial action which involved disputation over alleged safety procedures, safety disputes.
PN902
How did you calculate those hours?---Every time there is an unauthorised absence from work there is a stoppage, there is a strike, payroll collect the hours because we don't pay people for that and I then report on those hours.
PN903
So is it a collection then of unpaid hours then or hours that are unpaid by the company? Is it possible that that would include authorised but unpaid meetings or authorised but unpaid days off?---No, it doesn't include anything that's been authorised.
PN904
Now, you say in your evidence at paragraph 73, you say:
PN905
Each work stoppage also increases the attrition rate for individual workers who are not interested in working in an environment where there is so much strike action. A number of UKG employees informed me they were sick of the bull shit going on with all the industrial action and that they want to work where they can get paid without losing time to industrial action.
PN906
How many UKG employees have told you that?---I would say approximately 10.
PN907
And have those 10 all left?---I believe so. Anecdotally there are a lot more than that reports from supervisory staff who take resignations, et cetera, notations on the resignation slips that come through.
PN908
And all those people have left due to this industrial action, have they?---Well, not everyone who's left site has left due to industrial action but anecdotally there are enough people who leave because of industrial action for it to be a concern.
**** HELEN SPENCER XXN MR EDMONDS
PN909
So you're talking about up to 10. How many employees - - -?---No, I'm actually talking about more than 10. You asked me how many have spoken to me personally and that I estimate to be around 10.
PN910
So there's only about 10 that you know of?---No, I know of more than 10 because of anecdotal evidence from supervisory staff.
PN911
Are those supervisors going to come and give evidence about that?---And because I also get on - - -
PN912
Well, are those supervisors going to come and give evidence about that?---Well, don't ask me that question.
PN913
MR DAVIES: I actually do object to that question, your Honour. Ms Spencer has probably beaten me to the punch. It isn't for Ms Spencer necessarily to make that decision.
PN914
THE DEPUTY PRESIDENT: Yes, Mr Edmonds knows that.
PN915
MR EDMONDS: Well, I'll presume that that's a no then.
PN916
THE DEPUTY PRESIDENT: Well, just a moment.
PN917
MR DAVIES: Mr Edmonds cannot presume anything but Mr Edmonds may know that our evidence-in-chief is closed.
PN918
MR EDMONDS: So how many employees - - -
PN919
THE DEPUTY PRESIDENT: Just a moment, Mr Edmonds. If both of you just want to have a conversation between yourselves as to how the evidence will proceed I'm quite happy to do that. It will only elongate the situation, Mr Davies and Mr Edmonds. Thank you, proceed.
PN920
MR EDMONDS: How many workers would UKG have across both sites or across both jobs, the Alinta Cogeneration plant, the Pinjarra efficiency
upgrade project and the local services workers, how many employees would you have?
---We don't have any employees at the moment on the cogen. Across the other two at the moment we've probably got - I don't have
the most recent figures. I would be guessing around 560.
**** HELEN SPENCER XXN MR EDMONDS
PN921
560. Which you're personally aware of 10 that have left because of the alleged industrial action?---Mm.
PN922
Now, if I can take you to January this year, January of 2005, there was an issue about gift vouchers, wasn't there?---There was.
PN923
Involving the CEPU?---There was.
PN924
Now, can you tell me what the story was in terms of the giving of gift vouchers by UKG to its employees, why was it giving its employees gift vouchers?---There were a number of employees who agreed to work some shifts between Christmas and new year and in appreciation of that we advised that we would provide them with gift vouchers.
PN925
Now, what were those gift vouchers?---They were Myer gift vouchers.
PN926
And how much were they for?---I can't remember. Not much.
PN927
When were they supposed to be given to those workers?---Well, after new year, after the break. There was no specific time given to people.
PN928
And you say that around 12 January there was a number of people who were unhappy that hadn't received their gift vouchers, is that correct?---Yes.
PN929
And you then addressed them and said:
PN930
We understand the issue here is that you haven't yet received your gift vouchers you did over the Christmas period. The company appreciates the work you did at that time and intends to make sure you get those vouchers.
PN931
You say that Coles had some difficulties -
PN932
Coles Myer had some difficulties organising those vouchers for you.
PN933
That they have been ordered but there is a delay. Did you explain to them before 12 January that there was a delay in the production of those gift vouchers?---No.
PN934
So you hadn't addressed the issue with them, you hadn't addressed the fact that they hadn't got their gift vouchers yet?---Mr Edmonds,
it wasn't an issue until
12 January. We knew that the vouchers were on the way and it certainly had not been raised as an issue. They knew they would get
the vouchers.
**** HELEN SPENCER XXN MR EDMONDS
PN935
But you certainly knew that they were expecting them shortly after they returned to work in the new year?---No, I didn't know that at all.
PN936
Well, you tried to organise them shortly after they returned to work and you knew that was true, wasn't it?---Well, after the new year break the admin staff, yes, tried to get the gift vouchers and Coles Myer had difficulties supplying them locally, they couldn't do it.
PN937
With hindsight isn't it probable that it would have been more prudent or isn't it true that it would be more prudent to advise those employees that there was a delay, that you would get them to them as soon as you could?---Like I said, I didn't realise that it was an issue until they were hold up in the crib hut. Had I been advised that there was an expectation that immediately the Christmas/new year break was ended there would be a gift voucher there, yes, I would have attempted to have communicated that, but quite honestly, I wouldn't have thought a $30/50 gift voucher was worth doing time for, especially in the event that as the guys walked out the gate the gift vouchers came through.
PN938
On 9 March 2005 there was a bomb threat against Alcoa, wasn't there?---Yes.
PN939
There's no procedure in place at Pinjarra?---There is no procedure in place for the construction people. The refinery had an evacuation procedure.
PN940
So the refinery had one but the construction people just kept working, did they?
---No, the construction people were evacuated.
PN941
And there was a subsequent meeting, wasn't there, about concerns the workforce had as to the lack of evacuation procedure, wasn't there?---Yes.
PN942
Following those meetings there was an emergency evacuation procedure put together?---Yes.
PN943
There was that emergency evacuation procedure that followed on or around
1 August 2005?---No, because from memory it's an emergency evacuation procedure for a malicious threat, not for a hoax.
PN944
Well, surely anyone threatening to blow the place is making a malicious threat. A hoax is only a hoax in hindsight, isn't it?---Well, no, the particular hoax that I think you're alluding to was a hoax before we were told about it. It had been declared a hoax.
**** HELEN SPENCER XXN MR EDMONDS
PN945
On 1 August 2005, but had the procedure been worked through on 1 August?
---No, it wasn't applicable to a hoax.
PN946
But it was applicable to a malicious threat though?---It's applicable to a serious no malicious threat, yes.
PN947
How did you conclude that the threat made on 1 August was a hoax and the threat procedure ought not be followed?---I believe that at the time I was informed about it I was also informed that it had been declared a hoax by the police who had investigated it.
PN948
So does that procedure that was developed after the threat on 9 March, is there two different procedures, one for dealing with hoaxes and one for dealing with threats?---Well, I would think that it would be quite stupid to use the same procedure for a malicious threat as you'd use for a hoax.
PN949
So there was two different procedures developed then on 9 March, was there?
---No, there was a procedure for a malicious threat.
PN950
And you just say, well, if we think it's a hoax we just want to follow that procedure, that's correct, isn't it?---Well, no, because on 9 March, not being clairvoyant, we weren't aware that there would be a hoax received in subsequent months.
PN951
But by 1 August you developed those clairvoyancy skills, had you?---No, on
1 August we relied on advice from Alcoa from the police.
PN952
THE DEPUTY PRESIDENT: Mr Edmonds, there's no need to be so casual.
PN953
MR EDMONDS: I think have made my point on that particular issue, sir.
PN954
THE DEPUTY PRESIDENT: Well, you might think you have.
PN955
MR EDMONDS: Certainly, sir.
PN956
Now, on 19 March 2005 there was an overflow in buildings 44 and 45, that's correct, is it?---Yes.
PN957
And that resulted in quite a serious safety issue involving the UKG employees, didn't it?---It was certainly an incident that all involved took very seriously.
**** HELEN SPENCER XXN MR EDMONDS
PN958
You acknowledge that there were some safety deficiencies at that point in time, that's true, isn't it?---There was certainly a deficiency in the communication about what was customary procedure for refinery workers that hadn't been relayed to our construction workforce.
PN959
Now, if I could take you to 18 April 2005 you say from - sorry, paragraph 143, you say:
PN960
On 18 April 2005 from 7.15 am the Pinjarra efficiency upgrade grade electrical workers stopped work without authorisation by UKG.
PN961
You say you saw a number of your employees in their crib huts on site -
PN962
Neither the safety procedure nor the disputes settlement procedure in the CEPU agreement had been followed.
PN963
Isn't it true that the safety procedure actually require that the employees if they feel that their work area is unsafe and if they feel is there no alternative for safe work, if they perceive that, that they sit in the crib huts?---That's part of the procedure, yes.
PN964
So it would be true to say that if they perceived that there was no safe work available for them that it's appropriate under the safety procedures to sit in the crib huts, isn't it?---No, no. Initially the first part of that procedure from memory is if there is an issue and you're aware of it you raise it and attempt to remedy it or if you can't remedy it you attempt to get somebody else to remedy it and you certainly accept redeployment to safe areas and these workers would not accept redeployment to safe areas. This actually involved a very small part of that building and of the project.
PN965
But what I'm saying is wouldn't you agree with me if a group of workers or a worker perceives that there's a threat to him he doesn't merely keep working in that until it's been raised with the supervisor that he is not to work in an unsafe place, that's correct, isn't it?---I would absolutely agree that if an individual or a small group of individuals are in a situation they regard as hazardous or unsafe they ought to remove themselves if they can't remedy it. I wouldn't agree that everyone should remove themselves on that basis.
PN966
But those who perceive that there's a threat to themselves?---Absolutely.
**** HELEN SPENCER XXN MR EDMONDS
PN967
Should remove themselves from that threat, make themselves available for alternative work or if no safe alternative work is available
to go to the crib huts?
---I think that would be probably consistent with the procedure.
PN968
If I could take you to the union rallies of June 2005, you will find that at paragraph 163. Now, at paragraph 164 you say that at about 28 April you were approached by Mr Hayes who is an official from the CEPU. That's correct, isn't it?---You mean 28 June?
PN969
Yes, sorry, 28 June?---Yes.
PN970
That he approached you and asked for authorisation for the UKG electrical employees to attend the rally in Perth?---Yes.
PN971
You declined that request, didn't you?---Yes.
PN972
Now, you say:
PN973
A number of the UKG electrical employees returned to work at approximately 10.45 am after the rally finished.
PN974
?---Yes.
PN975
When you say a number, how many are we talking about?---Mark, with this distance in time I would be guessing. From memory I think it was about 16.
PN976
16 out of about how many?---Probably about 38.
PN977
So a little bit less than half returned?---If I'm guessing right, yes.
PN978
Now, there was an emission on 6 July 2005 which resulted in spray falling in the car park - sorry, paragraph 167?---Yes.
PN979
When were all the workers advised of that emission?---I am not sure because I wasn't on site at that time, so I don't have those details.
PN980
But it was certainly some time afterwards, wasn't it?---Yes, from memory I was told that Alcoa didn't become aware of it until quite late in the day and they then made the contractors aware of it. Like I think it was around 4.30 and I think, I think, some of our people were advised, were able to advised that knock off that day and I think the remainder advised at pre start the next morning, but I could have that wrong.
**** HELEN SPENCER XXN MR EDMONDS
PN981
So it was about a day later people were advised?---Could be.
PN982
Now, there was a stoppage on 19 September, that's correct, isn't it?
---19 September.
PN983
It's not part of that statement, it's part of other evidence ?---Okay. That would be the one, the most recent one.
PN984
Yes?---Yes.
PN985
Now, you have previously given evidence that some workers were not advised that overtime had been cancelled and they attended for work on the Saturday?---I was aware of one person who was at Kwinana.
PN986
Have you subsequently become aware of any others?---No, I haven't.
PN987
Has that worker been paid?---He has. Well, I have issued the instruction. I did it as soon as I became aware that he be paid.
PN988
Now, aside from that incident on 19 September has there been any other industrial action since 2 August involving members of the CEPU?---Involving members of the CEPU, no.
PN989
Okay. Has there been, in your view, a concerted effort to ensure the disputes procedure was complied with?---No.
PN990
You don't think there's been a concerted effort?---I'm not aware of any particular effort to ensure that the disputes procedure has been complied with.
PN991
Well, would you say that, leaving aside the incident of 19 September, would you say that since 2 August there's been no unauthorised stoppages, no industrial action?---With the CEPU, not that I can recall, no, there hasn't.
PN992
Do you feel like there's a risk of industrial action occurring into the future?---I do.
PN993
Thank you, sir. No further questions, sir.
PN994
THE DEPUTY PRESIDENT: Thank you. Yes, Mr McLane.
**** HELEN SPENCER XXN MR EDMONDS
PN995
MR McLANE: Thanks, your Honour.
<CROSS-EXAMINATION BY MR MCLANE [2.28PM]
PN996
MR McLANE: Ms Spencer, if I could just first of all take you to your statement at paragraph 191?---Yes.
PN997
Ms Scoble took you there before and it just says in the first sentence:
PN998
There have been a number of issues which we have resolved on site without losing time.
PN999
You then make the point after that, that given that that you fail to see why that can't happen more often, but I just want to ask you about the issues that have been resolved. Has the AMWU through its delegates or officials been involved in solving a number of those issues?---Yes.
PN1000
Thank you. With the main AMWU shop steward on your site there is it fair to say that there's a reasonable relationship between you and him?---I have the highest regard for him.
PN1001
Thank you. And is it also fair to say that there's a reasonable working relationship with Mr Steve Mr McCartney, the organiser responsible?---I also hold him in high regard.
PN1002
I know that you're aware of the efforts that the Commission as currently constituted has made to get a hold of the situation over
the last six weeks or so?
---Yes.
PN1003
Have you seen a positive improvement as a result of that?---The situation is precarious. I have spent the best part of the last 2 days trying to hold our workforce at work and trying to help people understand the difference between industrial - - -
PN1004
Just let me - I’ll ask - I’ll come to that but just before I do - - -
PN1005
MR DAVIES: I wonder whether she might be able to complete her answer, your Honour.
PN1006
MR McLANE: I see. It’s not the answer to the question that I asked and I do - - -
**** HELEN SPENCER XXN MR MCLANE
PN1007
THE DEPUTY PRESIDENT: Maybe it’s not the one you wanted but you asked the question and you’re getting an answer. Yes, finish the answer.
PN1008
MR McLANE: Okay?---I have kind of lost my train of thought. The six - - -
PN1009
You were saying over the last few days?---Yes. Over the last two days, Monday and Tuesday, I have spent basically both days down on site trying to resolve issues without the guys having mass meetings or without the guys walking out the gate, explaining yesterday with a group of employees the difference between industrial action and genuine safety concerns. It is - I mean, we have got a section 127 in place. It is just sheer hard work helping people to understand that that needs to be - what that means and helping people understand that there’s dispute procedures there, use them.
PN1010
I don’t doubt what you say for a moment and I’ll put to you that it’s probably been fairly difficult for Mr McCartney and Mr Emery, who has to work with people day in and day out to get that message across as well?---I’m sure one reason we have a good relationship is we all appreciate the difficulty.
PN1011
Yes. Just in relation to the situation you have just described, did people walk at the end of it or not?---No, they did not walk. They eventually returned to work.
PN1012
Now, I started work on 2 August with the metal workers - that’s a bit of a crucial date that has nothing to do with me in these proceedings. If you take your mind back to the time - - -
PN1013
THE DEPUTY PRESIDENT: Well, if any credit goes around, you should be quick to claim it.
PN1014
MR McLANE: If you had to try to have the discussion that you had over the last couple of days in early August, how would you have rated your chances?---I have been having that particular discussion pretty much since December.
PN1015
Am I correct in saying that people most likely would have walked regardless?
---Look, they have walked repeatedly since December and there are, as I have said in my statement, also many instances when we can
resolve things.
PN1016
If I can just take you back to the question now that took us down this track, and that’s fine, you have said you’re aware of the involvement of the Commission. Has that had a stabilising effect? Is it better now than it was in early August and in the lead up to early August?---I think still our best period was in the lead up to the nationwide rally. We had about 6 or 7 weeks that were free of stoppage.
**** HELEN SPENCER XXN MR MCLANE
PN1017
I just want you to answer the question. It’s either stayed the same, got better or got worse?---Well, I don’t know that I feel it’s better; I don’t feel it’s worse. So I guess that must mean it’s stayed the same.
PN1018
Are you aware of Mr Emery and Mr McCartney going to extra lengths in the last, you know, 4 weeks or so to try and get a hold on things, notwithstanding the difficulties?---I think that Mr McCartney and Mr Emery have tried really hard since March.
PN1019
I just want to take you to the document - it’s in R1, if I could, sir, and if the witness could be shown that.
PN1020
You have heard me explain a couple of times what it is I think, Ms Spencer. If I can just take you to the United KG, which is on the third page. I’m sorry, I haven’t numbered it. I want to ask you about the two 14 Aprils. The bottom one identifies United KG, and this is just taken word for word off the allegations of the companies against us. The one at the top says:
PN1021
Remaining in shed alleging safety issue.
PN1022
Is that a United KG one as well or not? Can you - - -?---Without checking through my notes, I can’t answer that question off the top of my head.
PN1023
Would you agree with me that it would be unusual that there would be two strikes by the AMWU and the CFMEU within the same - the one date? You know, some of us would probably be quite proud of it if it is the case?---Not necessarily. I’m just thinking of the other week when - well, even the question I have already been asked about the CEPUs - - -
PN1024
I haven’t asked you anything about the other week. I just want to know about - - -?---I can’t answer your question in relation to this particular matter without checking but what I can say is it isn’t unusual for us to have a couple of strikes on the go.
PN1025
With the same union?
PN1026
MR DAVIES: Your Honour, I wonder if I might intervene there, just perhaps for clarity. I’m also unsure as to why that date is in that part of the table. I think it may just be a typographical error. I just wonder whether Mr Reid might be able to help - I guess me as well as the witness - to identify where in our material that has come from because I can’t see it in our application.
**** HELEN SPENCER XXN MR MCLANE
PN1027
MR McLANE: Really, if I may, sir, is it all right, Commissioner? Thank you. Really all I wanted to do was to say have there been two strikes on that day or not.
PN1028
MR DAVIES: I guess, your Honour, what I’m suggesting is that there may be a typo in that table.
PN1029
THE DEPUTY PRESIDENT: There may be. I’d press on. Even if there was, Mr McLane, or whether there wasn’t, I don’t think the case is going to turn on that specific issue.
PN1030
MR McLANE: As the Commission pleases.
PN1031
Ms Spencer, if I could just ask are there any other disputes apart from the alleged industrial action - apart from these and of course the one over on the next page that identifies a whole site that involved UKG?---Because we have had so many I would literally have to go through and check them off to answer that question properly.
PN1032
Okay, no problems. I don’t need to take the witness any further to that document. I take it that you’re not saying that all of the industrial action on the list is the entire fault of the AMWU?---In all of the industrial action in my statement, is not the entire fault of the AMWU.
PN1033
Thank you. Now, I just want to finish off with the bomb hoax. I just want to paint the situation. I don’t ask you to agree with me but I can assert from the bar table that the political climate we live in is one of be alarmed, not alert, terrorists are going to blow us up and throw our kids into the sea - given that type of political scenario, does it surprise you that people on the site react in the way they do when they find out that a bomb threat has been made? Set aside malicious hoax or whatever, but does it surprise you that people take it more seriously today than they might have done 5 years ago?---I can only answer from a personal viewpoint. I received the information that everybody else did. I was not worried. I strolled over to the canteen and got my lunch as normal. I personally did not view it as a cause for alarm.
PN1034
All right. But would you be as relaxed about visiting particular areas in Bali or particular establishments - - -
PN1035
THE DEPUTY PRESIDENT: Mr McLane, I don’t know that that’s got ought to do with this issue here. You’re not going to get into what Mrs Spencer’s holiday preferences are.
**** HELEN SPENCER XXN MR MCLANE
PN1036
MR McLANE: No, I wasn’t going there, sir, but I suppose I’m trying to get an acknowledgement from Ms Spencer that people do perceive things in different ways and the workforce has obviously perceived some of the things that have happened on site differently to what we might do standing here in the city.
PN1037
THE DEPUTY PRESIDENT: Perhaps you can ask a question in that vein.
PN1038
MR McLANE: Sorry, sir?
PN1039
THE DEPUTY PRESIDENT: You can ask a question more directly, directed at the - - -
PN1040
MR McLANE: Yes.
PN1041
Well, do you understand why people would be more concerned today than they might have been a few years ago?---I can only relate to how I feel about these things and at that personal level, no.
PN1042
All right. So, do you feel any differently about these things today than you did three years ago, four years ago? How long ago was 9/11?---Absolutely not.
PN1043
Do you travel internationally?---Yes, I do.
PN1044
And you don’t feel any different?---No, I don’t.
PN1045
Thank you. I have no further questions, sir.
PN1046
THE DEPUTY PRESIDENT: Yes, thank you. Mrs Spencer, you made some comments regarding the application of the dispute resolution procedure and I think the safety procedure, but just for the moment direct your attention to the dispute resolution procedure. Do you have any view as to the understanding by employees of UKG of that procedure?---Sir, logically they ought to understand it because of the emphasis it’s been given. My personal view is that there is a mindset that goes back a couple of decades that - and it’s - the mindset is about you just smack the boss. You just clobber them. Having said that, I think that there are many people on that site that are rational and sensible and that this kind of group thing takes over, so the people with the loudest voices holds sway. If we could - - -
**** HELEN SPENCER XXN MR MCLANE
PN1047
I wasn’t really asking you a question about historical or necessarily even current behaviour. I was asking you a question about your view of the level of understanding by employees of UKG of the dispute resolution procedure that is in your agreement?---All I can say is they ought to understand it.
PN1048
Well, I don’t think anyone here, and certainly not me, would disagree with that but that wasn’t the question I was asking you. I was more directed at whether you have any view of the level of understanding that actually exists?---I don’t really know. I’m not that close to the - because I don’t work with the workforce day to day, I’m not that close to the bulk of them.
Yes, thank you. Mr Davies?
<RE-EXAMINATION BY MR DAVIES [2.46PM]
PN1050
MR DAVIES: Thank you, your Honour.
PN1051
If I could take you to paragraphs 77 and 78 of your statement, Ms Spencer, you say there that you recall strike action by the PEUP
metal workers on
10 December 2004 and then there’s a return to work on 13 December 2004. I just wanted to ask you to clarify your recollection
as to whether crane drivers were out on strike at that time?---I think they were.
PN1052
If I can then take you to paragraph 112, and following, of your statement, you say there at paragraph 113 that on 10 March all UKG electrical employees stopped work. You then say:
PN1053
I was told, to the best of my recollection by Gill, the strike action was on account of employee concerns with deficiencies in the Alcoa emergency evacuation procedure.
PN1054
Then you say:
PN1055
They were followed at 11 am by the UKG metal workers and the crane drivers.
PN1056
Is it your understanding that the period of time during which UKG metal workers was out was also a period of time during which crane drivers were out?---Yes.
PN1057
Then finally if I could take you to paragraph 137 of your statement, you say there that:
**** HELEN SPENCER RXN MR DAVIES
PN1058
At 1.30 pm on Thursday, 14 April 2005, all of the UKG metal workers stopped work which was not authorised by UKG.
PN1059
What do you say the crane drivers were doing at that time?---With that one I can’t recall. I would actually have to check the lost time reports.
PN1060
You gave some evidence I think in cross-examination by the CEPU that there were stoppages over safety issues. Did you regard those stoppages as stoppages by only workers who were concerned about imminent risk to their health or safety?---No.
PN1061
If I can take your mind back to the strike which involved UKG having undertaken to give employees gift vouchers. Was UKG obliged to give employees those gift workers for working during the period between Christmas and New Year?---No, it was a token of appreciation.
PN1062
You were also asked some questions about what happens where workers perceive a situation not to be safe. I think the suggestion made to you was that they would go to their crib huts. When employees take - sorry, is that the only time that employees go to their crib huts?---No.
PN1063
What are other situations where employees will go and sit in their crib huts?---I can’t remember legitimate occasions - when they’re having a protest about something or other.
PN1064
In cross-examination by the AMWU you were asked some questions about the stability currently on site and you referred to some issues that you’d been hard on this week so as to avoid an escalation of industrial action. You were asked, did people walk, and your answer was that they eventually returned to work. What do you mean by "eventually returned to work"?---Well, yesterday afternoon, or yesterday morning, workers in building - three crews that were working in building 45 up the top of the tanks walked off the job. I think they had certainly, according to the safety rep, not raised their issues previously, not raised their issues through the safety committees, the pre-starts, the toolbox meetings - I think they were just spooked by the Four Corners program and decided that perhaps it wasn’t good for their health to be working in that refinery environment. So we went through everything again over a period of several hours and I explained to them why this was industrial action and not about health and safety and - also I took account of what they were saying and arranged to go back over stuff that’s been covered and re-covered and covered in this Commission with regard to caustic mist and then ask them - put it to them that it was industrial action, would they please go back to work, and they did.
**** HELEN SPENCER RXN MR DAVIES
PN1065
Then finally, his Honour asked some questions about your view concerning the level of understanding of employees at the grievance procedure. I just wanted to ask a question of you about that. What do you say about the adequacy of the steps in your experience that have been taken by United KG to explain the grievance procedure to employees?---I don’t know what else we can do. I don’t know what else we can do except repeat it on a weekly basis and with the amount of crews and employees we have got to take over a week to get through them and they must be sick of hearing about it.
PN1066
No further questions, your Honour.
THE DEPUTY PRESIDENT: Thank you, you’re excused.
<THE WITNESS WITHDREW [2.53PM]
PN1068
THE DEPUTY PRESIDENT: Yes. Who next do you wish to cross-examine, Ms Scoble?
MS SCOBLE: Can we cross-examine Mr Riordan, please, your Honour.
<MATTHEW JOHN RIORDAN, SWORN [2.53PM]
PN1070
THE DEPUTY PRESIDENT: Just before you start, Ms Scoble, I think - - -
MR DAVIES: Thank you, your Honour, I just wish to do the same as I did with Ms Spencer and tender as an exhibit the further materials of Mr Riordan which were filed in accordance with the directions which unions have had a copy of for a period of time.
<EXAMINATION-IN-CHIEF BY MR DAVIES [2.54PM]
PN1072
MR DAVIES: Mr Riordan, do you recognise that document?---Yes, I do.
PN1073
You’ll see there that it’s a document which purports to be a further statement by you. Is it true and correct to the best of your knowledge and belief?---Yes, it is.
PN1074
I tender that, your Honour. Mr Riordan’s existing statements are A2 and A4.
PN1075
THE DEPUTY PRESIDENT: I’ll mark this. Just a moment. Which is the later of those?
COURT OFFICER: A4 is the later of the current ones.
EXHIBIT #A4A STATEMENT OF MATTHEW JOHN RIORDAN
THE DEPUTY PRESIDENT: Yes, Ms Scoble?
PN1078
MS SCOBLE: Thank you, your Honour. I’ll try and be quick so I have only got to 4 o’clock and I’m certainly not going to be here next week although I’m not travelling internationally.
PN1079
Mr Riordan, in your first statement, if I can take you to 3 December - what you have said there:
PN1080
He discusses stoppage by Downers Energy Systems on that date, 3 December.
PN1081
And you say that you were informed that that stoppage was to due payroll errors. Do you recall that?---Yes, I do.
PN1082
I put it to you that that matter had been raised with you prior to 3 December?---I can’t recall that it was.
PN1083
Are you aware whether that issue was raised with Downers prior to 3 December?
---No, I can’t recall.
PN1084
I’m sorry. It’s possible that it was?---It’s possible.
PN1085
So you’re saying in relation to that issue, the grievance procedure was not followed, but actually it’s possible it was?---I’d disagree with that simply because if the grievance procedure were followed employees would not have taken industrial action about those issues.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1086
But up to that point it’s possible that it was followed, up to that point, isn’t it?
---Up until the point where they took industrial action that they were following the grievance procedure, yes.
PN1087
I’ll move on now to 9 December. You talk about you met with Mark Goldsworthy, Allan Videaux and Trevor True, and you say:
PN1088
Allan Videaux was the union delegate of CFMEU.
PN1089
I put it to you that actually Mr Videaux was not a CFMEU delegate at that stage?---And that’s quite possible. At the time I made the statement I understood that to be the case but - - -
PN1090
Okay. So you’d agree that he was actually an AMWU delegate at that time?---I couldn’t confirm that he was an AMWU delegate either but, as I said, I have since become aware since I made the statement that he may not have been a CFMEU delegate.
PN1091
In your statement you talk about Mr Goldsworthy raising some issues and they are: confirmation that random drug and alcohol testing do not apply on that site; rostered days off as per the building industry RDO calendar; UKG payroll to fix the back pay. If employees work 9 or 10 hours, not 9 and a half hours, more crib facilities as the current ones are two cramped and a productivity completion printout each month and have redundancy approval shown on payslips, is that right?---Yes.
PN1092
I put it to you that those issues were actually raised prior to 9 December with you?---I can’t recall them being made specifically prior to that.
PN1093
Okay, so are you saying they weren’t or you just can’t recall?---I can’t recall.
PN1094
So it’s possible that they were?---Well, I can’t recall that they were.
PN1095
I take you to the 14th December now. That was, there was - you were informed by Simon Welfare of Theiss that employees of Theiss were taking industrial action due to the temperature in Perth being in excess of 37.5 degrees. Do you recall that incident?---Yes, I do.
PN1096
And is it correct that after that date you met with Mr Mark Hudston, CFMEU union organiser, about that specific issue?---Yes.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1097
And is it correct that at that meeting you formulated a plan for future management of heat stress on site?---We certainly discussed ways to resolve the issue of workers leaving site over a specific temperature, yes, we certainly had discussed that.
PN1098
Were there any further stoppages because of the temperature after that discussion with Mr Hudston?---For Theiss employees, no. For another contractor by the name of Apero ….. immediately party to this application ..... application but I believe that their contractor still had issues with that, but Theiss, no.
PN1099
So, you’re basically saying that that problem was solved, is that right?---Yes.
PN1100
Is it often that you’ll sit down with Mr Hudston and work out or solve issues on site?---Sorry, the reason I smirk is it happens far too often for my liking, but the answer is yes. We quite - sorry, I’ll - we very often sit down and discuss issues.
PN1101
And is it frequent that those issues get resolved?---Yes.
PN1102
If I could take you to 7 January now. Some issues are raised with you, you say by Mr McCartney, that:
PN1103
RDOs be taken in accordance with the building industry calendar.
PN1104
Do you agree that that issue was raised then?---On that particular day, yes.
PN1105
And you would agree that that issue was actually raised with you by Mr Goldsworthy?---Certainly. Back in December, yes.
PN1106
Yes, December?---Correct.
PN1107
So the issue hadn’t been resolved by 7 January, is that right?---No, the contractor involved in that issue at the time did not wish to concede to the claim made by the union employees so, no, it hadn’t been resolved.
PN1108
In relation to that stoppage, 7 January, that occurred I think, to be safe, on 7 January to 10 January, you state that CFMEU were
involved in the stoppage. Did you speak to any CFMEU officials or delegates at that time, 7 to
10 January?---I’d need to check my statement with respect to that but - - -
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1109
I mean, in your statement you don’t say you do and that’s why I’m asking?---I can’t recall.
PN1110
So you can’t remember whether any CFMEU official or delegate told you they were taking strike action?---No, I can’t recall.
PN1111
In paragraph 33 - I know you don’t have it in front of you - you talk about UKG filed a section 170LW application, which you call a dispute pursuant to the grievance procedure under the certified agreement, to this Commission?---Sorry, which date? On the second - on the first day of - - -
PN1112
It was on 11 January that was filed?---Yes.
PN1113
Then you say it was before Commissioner Harrison for a video conference?
---Yes.
PN1114
Was the CFMEU a party to that application?---Well, I’d have to check the record of the application.
PN1115
Well, I put it to you that the CFMEU were not a party to that application. It was only in relation to the AMWU?---That’s quite possible. As I say, I’d need to check that.
PN1116
But that application related to the same issues that were raised by you with Mr McCartney on 7 January?---Yes, both the desire to work a 10-hour day and having RDOs in accordance with the construction industry calendar.
PN1117
Can you say the CFMEU was involved in that industrial action?---Yes.
PN1118
But there was no section 170LW filed in relation to the CFMEU?---As I say, I can’t recall.
PN1119
Now I’ll take you to 2 February. You say that there was a strike at that time but you were on leave, is that right?---That’s correct.
PN1120
So any grievance that was raised around that date probably wouldn’t have included you, would it?---No, I was overseas.
PN1121
So you wouldn’t know whether the grievance procedure was followed in that case, would you?---I could only go off what my colleague who was filling in for me told me once I’d returned from leave, so certainly from his information he indicated that strike action did occur which would then tell me that the grievance must not have been followed.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1122
I take you now to 10 March and that’s where there was a bomb threat?---Yes.
PN1123
Made to Alcoa. Are you aware whether Alcoa had a bomb threat procedure in place at that time?---I had not seen a bomb threat procedure.
PN1124
I put it to you that there was actually no site-wide procedure in relation to bomb threats?---I am aware that they had an evacuation procedure in place and the fact that employees were successfully evacuated off the site would tell me that that procedure obviously worked. The question being specifically a bomb threat procedure, no, I’m not aware that there was a bomb threat procedure.
PN1125
Would you recall that following that incident on 9 March that steps were taken to develop and implement a bomb threat procedure?---Yes, I can recall that occasion. Now, whether that was a revision or a change to the previous procedure I don’t know but certainly I can recall those discussions that we had.
PN1126
And those discussions involved Mr Darren Kavenagh, the CFMEU safety advisor?---Yes, they did.
PN1127
Do you recall Mr Kavenagh raising that the agreement provides for dispute resolution clauses that involve an occupational health and safety committee but that there actually was no committee in existence at that time?---I do recall him alleging that, yes.
PN1128
Do you recall him alleging that there was no emergency evacuation alarm sounded in relation to the bomb threat?---I don’t recall him alleging that, no.
PN1129
Do you recall that he stated that many of the alarms were not audible?---No, I don’t recall that.
PN1130
Do you recall him saying that only a portion of the workforce were evacuated?
---No. No.
PN1131
Are you saying with those things you don’t recall you just don’t remember or are you saying they didn’t happen?---No, I don’t remember.
PN1132
But you would agree that Mr Kavenagh identified deficiencies with the procedure?---I would agree that Mr Kavenagh identified what he regarded was deficiencies. I’m not aware that they were deficiencies but I agree that he identified some things that he alleged were deficiencies.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1133
But you’d expect, given a new procedure was formulated out of that, that obviously there were some problems?---The workforce highlighted some of their concerns with the way that the evacuation had occurred. Obviously discussion took place on - to resolve or allay their concerns. From my perspective, I thought there was an adequate evacuation that took place. However, further discussion about that evacuation resulted in a refined procedure. But whether that meant the previous procedure had deficiencies I don’t really think that’s the case. But a refined procedure certainly seemed to allay their concerns.
PN1134
You would be aware of - within the enterprise bargaining agreements the safety disputes resolution clause provides for the involvement of an occupational health and safety committee, wouldn’t you?---Yes.
PN1135
So you’d be aware then, if there’s no occupational health and safety committee constituted that there’d be a problem with - activated at disputes procedure?---In terms of getting the disputes procedure completed to its full extent, absolutely. It would be very difficult to comply with something that’s not in existence.
PN1136
If I can take you to 22 March now.
PN1137
MR DAVIES: Your Honour, perhaps in fairness to the witness, if Ms Scoble intends calling evidence to say that there was no such committee in existence then it would only be fair that that be put to our witness as well. If it’s anticipated that sort of evidence be called then our witness ought to have an opportunity to respond. I’m just not quite sure where it’s leading.
PN1138
MS SCOBLE: Sure, I’m happy to put that. I thought that I had already but, okay, if I can make it clearer.
PN1139
As on 9 March when the bomb threat occurred, would you agree that there was no site occupational health and safety committee in existence?---No, I wouldn’t agree with that.
PN1140
Okay. 22 March now. That was a stoppage that related to UKG over two near-miss incidents with caustic soda spills. Do you recall speaking to any CFMEU officials or delegates about that stoppage at that time?---Again, I’d need to read through my statement but off my recollection, no I can’t recall.
PN1141
If I could take you to 19 and 20 April now. My understanding is that on 19 April there was another meeting held and that was in relation to another caustic spill, wasn’t it?---If that’s what my statement reflects, yes, I’d stand by that.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1142
So you would say - I just spoke to you about 22 March where there were issues in relation to UKG and a caustic spill?---Mm.
PN1143
And then the issue was again raised 19 April. What steps have been taken between March and April to insure that further caustic spills didn’t occur and didn’t affect the workforce?---I’m not part of the safety committee structure at Alcoa Pinjarra so I couldn’t accurately reflect the safety steps being placed in Wiluna.
PN1144
Okay. You talk about a whole site stoppage on 11 May that resulted in a request for Darren Kavenagh to come to the site and do an audit in conjunction with the safety committee?---Yes.
PN1145
Do you remember what that stoppage was about?---Again, without looking at my statement, off recollection it was alleged - - -
PN1146
THE DEPUTY PRESIDENT: Do you want a copy of your statement to refer to?
PN1147
MS SCOBLE: That’s what I’m asking?---Okay. Perhaps if I could look at my statement to refresh my memory.
PN1148
Yes, go for it?---Sorry, what paragraph is it?
PN1149
74 to 80?---Nothing was specifically I’d - that I can recall was specifically identified prior to that occasion to say, well, look, this needs to be fixed. My recollection is that on the day that the industrial action occurred, as reflected in my statement, it was just that there was a lack of confidence in safety on site.
PN1150
Would that have been because some TCC employees were doused with caustic mist on 6 May?---Off recollection that may - that could well have been a contributing factor to the - - -
PN1151
So you agree that that occurred?---I wasn’t part of the investigation process to state that, yes, employees got covered in caustic mist but I do recall those allegations being made.
PN1152
Do you recall that those employees - at least some of them required medical attention?---I can recall at least - again I heard one employee required medical attention. I can’t say I was involved in the investigation to accurately reflect that that was he case.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1153
Do you agree that that incident gave rise to the notification to this Commission from the CCI on behalf of the contractors?---I can’t recall but - I mean, if there was a Commission proceeding then I’m not about to say that didn’t occur.
PN1154
Well, I put it to you that on 18 May it was listed before the Commission as currently constituted and you were in attendance on that day?---Yes.
PN1155
Do you recall at that conference the Deputy President stated that safety was a two-way process?---Absolutely.
PN1156
And you’d agree with that statement?---Absolutely.
PN1157
So you’d also be aware that the CFMEUs safety advisor, Darren Kavenagh, and an independent auditor, Bob Briley, conducted a safety audit on the Pinjarra efficiency upgrade project?---Yes, I do recall that.
PN1158
And you would recall that report documents significant changes to procedure that will be required to improve safety on that project?---I didn’t read the report.
PN1159
If I can take you to 8 July, paragraph 85 - in relation to that particular stoppage, were you approached by any CFMEU officials or delegates in relation to that stoppage?---Is this just on 8 July or 8th to the 12th?
PN1160
8th to the 12th?---Just bear with me, please. No, between those - the 8th and the 12th I can’t recall being approached by the CFMEU delegates or an official.
PN1161
If I could take you to 13 to 18 July?---Yes.
PN1162
You talk about another stoppage there. Would you agree that that stoppage was the result of further emissions from the plant?---The dispute was associated with emissions from the plant. That was concerns raised with me. But when you say “further emissions”, off recollection the emissions that employees have particular concern with were from the previous week, around 8 July I think, emissions at that time.
PN1163
So in your evidence there are at least three times when there have been caustic emissions from the plant, is that right?---If I can recall, two caustic emissions. If there’s somewhere in statement that refers to a third, then I would stand by that. Off recollection I can recall two.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1164
Okay. Well, you say there’s more than one. I mean, you could understand the concern of the workers given that that keeps occurring,
can’t you, Mr Riordan?
---Concern how so?
PN1165
For their safety?---As a general statement, do workers have concern - or should workers be concerned over caustic emissions from the plant, I’ll agree that yes, I would be concerned about caustic emissions from the plant, yes.
PN1166
If I could take you to 20 July now, and you say you spoke with Mr McPowell, a union official of the CFMEU and he advised you that:
PN1167
The CFMEU would meet with all delegates on the project on 20 July.
PN1168
?---Yes.
PN1169
And then you go on to say that that meeting occurred?---Yes.
PN1170
Then at paragraph 107, Mr McCartney allegedly informs you that the meetings would occur on a fortnightly basis and the delegates were expected to attend the meeting and the meeting be paid, is that right?---That’s correct.
PN1171
So have those meetings been held with all project delegates every fortnight since then?---No, not on a regular fortnightly basis, no.
PN1172
Do you know that those delegates have actually been holding those meetings in their own time?---I’m not aware of that.
PN1173
Are they holding their - - -?---Sorry, I’ll amend that. I am aware of one meeting where delegates met outside the front gate. I can’t recall the date. It was obviously since 20 July, where they did meet outside the front gates and they said it was during their lunch break but given the fact that it went for longer than half an hour I would contest that it was solely held through the lunch break but certainly not on a regular fortnightly basis.
PN1174
But you say there’s no regular pattern of unauthorised meetings of those particular delegates?---Correct.
PN1175
On 26 July now, did you observe any of the Downer Energy Systems employees leave the site on that day?---I can’t recall seeing employees leave the site, no.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1176
Well, I put it to you that it was actually Mr Carey that told you that that had occurred, is that right?---That would be consistent with my - the first line of my statement in paragraph 110, yes.
PN1177
It would also have been Mr Carey that told you the relevant disputes procedure wasn’t followed, is that right?---No, the fact that employees have been taking industrial would tell me that the relevant disputes procedure hadn’t been followed.
PN1178
And the fact that Mr Carey told you that that was the case?---No, Mr Carey just advised me the employees had taken industrial action.
PN1179
1 August - so in relation to that bomb threat you say that the site procedure was actually followed in relation to the bomb threat on that day?---I would contest that there was a bomb threat made. My recollection of the incident as to how it came about was that the CFMEU office in Collie received a call at 5.38 in the morning and approximately 5.40 that morning, as I understand it, conveying that the CFMEU office had communicated that to the Bunbury Police at 9.30 and the Bunbury Police then got in contact with police in Pinjarra who then got in contact with management of Alcoa Wagerup as well as the management of Alcoa Pinjarra and by the time they had advised management at Alcoa Pinjarra the assessment of the bomb threat - they had already assessed it as a hoax and as such advised Alcoa management that a bomb hoax had occurred.
PN1180
Okay, so you don’t dispute that the CFMEU received a threat?---No.
PN1181
So what was the procedure that was put into place on that day then?---The project management were advised as soon as the Pinjarra efficiency upgrade management were made aware of this at approximately 11.45. The project management were advised at approximately midday - or sorry, between 11.45 and midday and employees were gathered into their respective crib sheds and management then informed the employees at approximately 12.30 that day that a bomb hoax had been received.
PN1182
And I put it to you that that’s not the bomb threat procedure, is it?---No, it’s certainly not because a bomb threat wasn’t made.
PN1183
Do you have a copy of your supplementary statement there?---Yes, I do.
PN1184
And your further supplementary statement?---Yes, I do.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1185
If I can take you to the further supplementary statement there?---Yes.
PN1186
In relation to 26 August, I put it to you that the crane drivers that were actually employed directly by Westons Construction did not leave the site?---No, that’s not correct.
PN1187
Are you aware that Westerns engage any crane drivers on a subcontract basis?
---Yes, Westerns engage approximately seven of their own crane operators as well as approximately five crane operators from Fremantle
Crane Hire.
PN1188
I put it to you that on that day, 26 August, it was the Fremantle Crane Hire crane drivers that were working for Westerns and they were the people at that site from that day?---No. Well, sorry, I agree with your statement that, yes, the Fremantle Crane Hire employees did leave but there was also the Western Construction crane operators that also left and the reason I know that is because I went and saw the project manager, David Banks. He advised me that and showed me the cranes that his direct hire employees operated and I could see that they weren’t operating and were required to be operating.
PN1189
I have got nothing further for this witness.
PN1190
THE COMMISSIONER: Thank you. Yes, Mr McLane.
PN1191
MR McLANE: Sir, I have just, while Ms Scoble was on her feet, had a discussion with Mr Edmonds. Both of us are going to be longer than half an hour, most likely, with Mr Riordan. I know that Mr McCartney and I have got the pleasure of a further audience before you at 4 o’clock. Given that, sir, I was just going to make the suggestion that maybe now is an appropriate time to adjourn, if that’s okay with you, sir.
PN1192
THE DEPUTY PRESIDENT: Do you have a view on that, Mr Davies?
PN1193
MR DAVIES: Your Honour, I don’t think we should lose the half hour. So far as Mr Riordan is concerned he’s going to be called mid-cross-examination in any event so he’s in that predicament already. It may or may not be the case that we finish cross-examination with another witness. I think that was about 40 minutes then with Ms Scoble covering a number of points, so I’d say why not take the time and see how we go. If somebody’s incomplete they can keep going next time round.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1194
THE DEPUTY PRESIDENT: Just a moment. Mr McLane and Mr Edmonds, how long is your examination-in-chief of your witnesses likely to take?
PN1195
MR McLANE: Between half an hour, sir, and an hour, I would say. I certainly won’t be within the time remaining, sir, no way.
PN1196
THE DEPUTY PRESIDENT: I’m not thinking today.
PN1197
MR McLANE: Yes, at least - my witness is Mr Cartney, sir, and I would say between half an hour and an hour as best I can.
PN1198
THE DEPUTY PRESIDENT: Is it the same for, Mr Edmonds?
PN1199
MR EDMONDS: Sir, we’re calling more than one witness. I did have four witnesses on my list, sir, but I can strike Mr Gill of that list, sir. There is still the three witnesses and I would suspect probably between half an hour and an hour for each of them, sir, on the 11th.
PN1200
THE DEPUTY PRESIDENT: Ms Scoble, I’m conscious that you have advised that you won’t be - you’re not available on the 11th. Is it the intention of your union to present evidence with another advocate leading that evidence on the 11th? Do you know?
PN1201
MS SCOBLE: I think I advised your associate, your Honour, that actually Mr Kitera was unavailable on that date. I would be reluctant to let that task fall to Ms Bowe, given she’s relatively new with our organisation and an articled clerk.
PN1202
THE DEPUTY PRESIDENT: Yes.
PN1203
MS SCOBLE: So, yes, I have some difficulty with going ahead with my witness on the 11th.
PN1204
THE DEPUTY PRESIDENT: There’s no prospect of one of the other advocates representing the interests of the CFMEU on that day?
PN1205
MR EDMONDS: It’s a bit hard to represent them and present what is concerned.
PN1206
MR DAVIES: Your Honour, there is one solution to that, and it relates to an application I was going to make in any event, and that is that in a similar way as to what the applicants did, the CFMEU lead their evidence by way of a witness statement and provide that to us. I was going to ask prior to the 11th that each of the respondents do provide us with an outline of the evidence they intend to call from each witness in any event, which would only be fair.
**** MATTHEW JOHN RIORDAN XXN MS SCOBLE
PN1207
THE DEPUTY PRESIDENT: Yes, in any event. I think it’s prudent not to proceed with the rest of the cross-examination now of you, Mr Riordan. You’re temporarily excused. You should make sure you’re available at the next hearing time. It’s my intention to adjourn these proceedings until the 11th, I think it is. It would also be my intention to attempt to conclude the proceedings on that day.
PN1208
Ms Scoble, I would request that you give some consideration of the suggestion made by Mr Davies with respect to witness statements even if the witnesses are unavailable; and secondly, I would suggest to facilitate the progression of the evidence, particularly in order that Mr Davies can be properly prepared and indeed the Commission, be forewarned of the content of the evidence I would request that you prepare either - that’s all of you - either witness statements or an outline of what the evidence is intended to be called with respect to what its purpose is. That doesn’t necessarily have to witness statements. I’m conscious of the resources needed for witness statements but they could be dot points on issues or matters of that nature. But I would request that you provide those both to the Commission and to Mr Davies as soon as you can.
PN1209
Ms Scoble, I’m conscious of the CFMEUs predicament and I would ask you to canvass with whoever you need to, some means of representation next Tuesday.
PN1210
MS SCOBLE: Yes, your Honour.
PN1211
THE DEPUTY PRESIDENT: I’ll adjourn on that basis.
<ADJOURNED UNTIL TUESDAY 11 OCTOBER 2005 [3.35PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MANUEL MARTINS, SWORN PN476
CROSS-EXAMINATION BY MR MCLANE PN476
EXHIBIT #R1 EXTRACT FROM NOTICE OF DEFENCE PN488
CROSS-EXAMINATION BY MS SCOBLE PN498
CROSS-EXAMINATION BY MR EDMONDS PN502
THE WITNESS WITHDREW PN519
WAYNE DAVID CAREY, SWORN PN522
CROSS-EXAMINATION BY MR EDMONDS PN522
EXHIBIT #R2 WEEKLY TIMESHEET FOR DOWNER ENGINEERING PN561
CROSS-EXAMINATION BY MS SCOBLE PN646
CROSS-EXAMINATION BY MR MCLANE PN740
RE-EXAMINATION BY MR DAVIES PN769
THE WITNESS WITHDREW PN791
HELEN SPENCER, SWORN PN802
EXAMINATION-IN-CHIEF BY MR DAVIES PN809
EXHIBIT #A6A FURTHER STATEMENT OF HELEN SPENCER PN812
CROSS-EXAMINATION BY MS SCOBLE PN814
CROSS-EXAMINATION BY MR EDMONDS PN894
CROSS-EXAMINATION BY MR MCLANE PN995
RE-EXAMINATION BY MR DAVIES PN1049
THE WITNESS WITHDREW PN1067
MATTHEW JOHN RIORDAN, SWORN PN1069
EXAMINATION-IN-CHIEF BY MR DAVIES PN1071
EXHIBIT #A4A STATEMENT OF MATTHEW JOHN RIORDAN PN1076
CROSS-EXAMINATION BY MS SCOBLE PN1077
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