C2005/1168, Transcript of Proceedings [2005] AIRCTrans 2428 (29 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13459-1

COMMISSIONER GREGOR

C2005/1168

LEIGHTON KUMAGAI JOINT VENTURE
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/1168)

PERTH

10.32AM, WEDNESDAY, 16 NOVEMBER 2005

Continued from 14/10/2005

PN1

MS E HARTLEY: I seek leave to appear for Leighton Kumagai Joint Venture.

PN2

MR T KUCERA: Continuing to appear for the Construction, Forestry, Mining and Energy Union.

PN3

THE COMMISSIONER: Yes, okay. Ms Hartley, I think you want to formally submit an amended order?

PN4

MS HARTLEY: I do, Commissioner.

PN5

THE COMMISSIONER: Yes. I think it's a copy that you already placed on the file.

PN6

MS HARTLEY: It is a copy that I placed on the file and provided to the CFMEU when we were in conference on Monday.

PN7

THE COMMISSIONER: Yes, I will receive that document now and it is on the record.

PN8

MS HARTLEY: Thank you.

PN9

THE COMMISSIONER: Would you like to start?

PN10

MS HARTLEY: Thank you. This application is for a 127 order against both the CFMEU and the employees of the Leighton Kumagai Joint Venture covered by the Leighton Kumagai Joint Venture Certified Agreement made with the CFMEU for the life of the project. The application has been made on the basis of a pattern of repeated industrial action since the commencement of the project. The evidence which will be presented to this Commission will show that the jurisdictional requirements of the section 127 have been satisfied.

PN11

Firstly, that there is work that is regulated by a certified agreement. Secondly, that the action that is complained of is industrial action within the meaning of the Workplace Relations Act. Thirdly, that for the industrial action complained of prior to 9 March 2005 it was illegitimate such as to warrant the granting of a 127 order; and that for the industrial action complained of post 9 March 2005, it is unlawful industrial action under the Building and Construction Industry Improvement Act 2005. In particular the applicant will give evidence to show that the dispute settling procedures, both the general procedures and the specific safety dispute procedures which are set out in the certified agreement, have not been followed by the CFMEU or the employees on any of the instances of industrial action complained of.

PN12

The evidence will also show that where there has been a section 127 order in place, albeit for a short period of time late last year, that it has assisted in the industrial relations on the project. The background to the application is that this is a significant engineering project for Western Australia. It is the construction of the Perth to Mandurah Railway. Leighton Kumagai Joint Venture has been awarded one of the packages for the construction of this project. It is one of the major packages as it involves the construction of a tunnel within the central business district.

PN13

There is a certified agreement in place which is the Leighton Kumagai Joint Venture New Metro Rail City Project Structural Certified Agreement 2004, which was certified by McCarthy DP on 8 July 2004. That is a certified agreement between the Leighton Kumagai Joint Venture and the Construction Forestry Mining and Energy Union. The industrial action that is being complained of in this application commenced very shortly after the certification of that agreement; in fact within a 2-week period. There have been instances of industrial action almost every month since the certification of that agreement. The most recent period of industrial action being a strike the week before last.

PN14

At that time a new section 127 application was lodged with the AIRC on
3 November, being C2005/1271. This application was heard by McCarthy DP that day and resulted in a 127 order against both the CFMEU and the Leighton Kumagai employees covered by the certified agreement. That order is PR 964638. I have copies of that order but as McCarthy DP made it clear on the transcript that he was only dealing with this matter in your absence, I am presuming that you have been forwarded a copy of that file.

PN15

THE COMMISSIONER: Yes, the file has been allocated to me.

PN16

MS HARTLEY: Thank you. That order was made for a short period of time until 6 pm on Thursday 17 November to allow for this hearing to be conducted. The key points of this application, which the evidence will address, will go to the number of separate instances of industrial action on the project; over 25 separate instances of industrial action over a some 16-month period. This has resulted in over 40 days lost as well as additional numbers of partial days lost. The industrial action has usually followed a meeting between LKJV employees with CFMEU officials, in particular Mr McDonald. The industrial action does not have a particular cause. There is no one underlying issue that continues to be re-agitated. There is a range of issues, which the evidence will show either really or are being used as an excuse for justifying the industrial action.

PN17

The CFMEU is intimately involved in the organising or being a party to the industrial action. However the employees are also bound by the certified agreement and are aware of this. The evidence will show that the industrial action is having a detrimental impact on the progress of the project, which in turn will have an impact on commuters of Western Australia who are subject to the disruptions caused by the project. There are detailed dispute resolution procedures in the agreement in clause 4.5, which is a general dispute resolution process and a specific safety dispute resolution process in clause 6.1. In general, in relation to these periods of industrial action, these have not been followed by the CFMEU. In fact, the evidence will show that there is a total disregard for the dispute settling procedures set out in the agreement to which the CFMEU has signed[sic].

PN18

The LKJV will submit that the fact that there is no one particular cause or underlying type of dispute leading to the industrial action, a complete failure of the CFMEU to follow the dispute resolution processes, gives the Commission the jurisdiction to make a section 127 order for the life of the project, to prevent any and all industrial action during the remainder of the project. In addition, the project is now the subject of the Building and Construction Industry Improvement Act, a Federal Act which makes industrial action during the life of the certified agreement unlawful. The submission is that all that LKJV wants is for the CFMEU and the employees to abide by the terms of the certified agreement.

PN19

If the Commission pleases, I now seek to call Mr Rob Wallwork.

PN20

THE COMMISSIONER: Thank you.

<ROBERT JOHN WALLWORK, SWORN [10.42AM]
<EXAMINATION-IN-CHIEF BY MS HARTLEY

PN21

MS HARTLEY: Thank you, Mr Wallwork. If you could start by telling the Commission what your current occupation is?---I'm a civil engineer but currently the project director for the Leighton Kumagai Joint Venture, who have a subcontract with Leighton Contractors who have a contract with the State of Western Australia, represented by the PTA to design, construct and maintain the new Metro Rail City Project, which is part of the Southern Suburbs Rail Project.

PN22

Thank you. In preparation for this hearing today have you prepared a witness statement?---Yes.

PN23

I will show the witness statement. Is this the witness statement that you prepared for these proceedings?---Yes.

PN24

I seek to tender that, Commissioner.

PN25

THE COMMISSIONER: Yes. Mr Kucera?

PN26

MR KUCERA: Senior Commissioner, you might be aware there has been no directions that the evidence in these proceedings be tendered by way of witness statement. Be that as it may, the applicant's solicitors have taken it upon themselves to conduct their case in this way. Our position is that the case can proceed in one of two ways; it can proceed by Mr Wallwork simply giving evidence, based on his actual recollection of events and where necessary appropriate documents can be tendered through a witness. The alternative is that if the other side are going to press with an argument that this statement be tendered and the case be conducted on the basis of witness statements, we would say that there are large tracts of this evidence which we would submit are inadmissible and inadmissible for a number of reasons.

PN27

One of the reasons is that there are large tracts of evidence in the statement that are simply hearsay and though the Commission is not bound by the rules of evidence, the Commission is equally not a star chamber and so we would say that the exclusion of the admission of hearsay evidence in this case, particular where the remedy against the CFMEU and its officials is so serious, that the rule against hearsay evidence ought to apply. Secondly, the statement also contains large tracts of opinion evidence which we say is also inadmissible. In addition to that object, a third objection is that the evidence, the statement, also seeks to rely upon matters which we say cannot be admitted as evidence, because they are the subject of without prejudice communications between the parties.

**** ROBERT JOHN WALLWORK XN MR HARTLEY
PN28

If the Commission is not minded to proceed in the first manner that we outlined, that is Mr Wallwork giving his evidence from the box without the benefit of his statement, our position is that this proceeding ought be adjourned so that we can put in our objections to the evidence. There will need to be some submissions filed in relation to that. It will take us a significant period of time, we suggest, to go through that process because this statement was served on us only yesterday. It's quite an extensive document and we have only just had an opportunity to go through it. The Commission can then see our submissions and make rulings, give the other side an opportunity to be heard, obviously; then the Commission would have to make a ruling, we would say, on whether or not those matters be admitted into evidence.

PN29

We say it's a serious matter because ultimately the consequences for the CFMEU and its officials are quite serious; and that our interests would be seriously prejudiced and compromised if the matter was to proceed as the applicants are presently proceeding to do so. The other point I wish to make while I'm on my feet, Senior Commissioner, is that the CFMEU, in an attempt to I suppose truncate the proceedings somewhat, did make an offer to make certain concessions. That offer was made on a without prejudice basis and as a result of what transpired in the directions conference the other day, our position is nothing is admitted and the onus of proof rests with the applicant; and they will have to prove all the matters - the allegations which they are asserting justify the issuance of an order.

PN30

In a nutshell, Senior Commissioner, I will leave it to you to make a ruling as to how we proceed from here.

PN31

THE COMMISSIONER: Okay, thanks. Ms Hartley, what do you say in reply?

PN32

MS HARTLEY: Thank you, Senior Commissioner. The CFMEU was put on notice that we intended to file a witness statement, during the directions conference on Monday, at which you were present. No objection was taken by that. To the contrary, Mr Kucera sat there and nodded. Now, Mr Kucera is no stranger to this Commission and to the proceedings. If he did not want to have the evidence put forward by a witness statement he was more than capable of objecting at that time. The witness statement was prepared on the basis of assisting the Commission to deal with a large volume of evidence for a matter that has been listed for 1 day.

PN33

In relation to the issue of hearsay, the witness statement clearly sets out the steps that have been taken by Mr Wallwork to obtain knowledge in respect of his role as the project director. He has ultimate responsibility for the project. He is not going to be able to know everything that happens but as part of his job he is responsible for collecting the knowledge of everything that happens on the job. In the witness statement it sets out the basis on which he has obtained that knowledge and if the CFMEU wants to test that, they can cross-examine him in terms of where that information came from.

**** ROBERT JOHN WALLWORK XN MR HARTLEY
PN34

In relation to the issue of saying that Mr Wallwork should simply give his evidence based on his recollections, in the circumstances where we have put them on notice that the witness statement had been prepared to assist in the Commission, where it is about to be sworn by Mr Wallwork that it is true and correct, if they have any issues with it then they can test it. This is a ruse, with respect. It is simply a way to try to drag out and delay the proceedings. We have put the CFMEU on notice for some months, since this matter has been listed, that we would strongly argue that their refusal to abide by the agreed process, which was that they were to respond to the chronology in terms of saying what their defence was, would not then be able to be used as an excuse to adjourn the proceedings.

PN35

We are now in a position where Mr Kucera has withdrawn any response so we are in the position of calling our evidence with no idea as to what the CFMEUs defence is. Mr Wallwork has prepared a witness statement. It sets out, in relation to all of those, where the information came from. It is a matter for the Commission to judge the weight to be given to that and for the CFMEU to test it. We are talking about over 25 separate periods of industrial action over a period of 16 months. With respect, it would take weeks if we were to have to call every single supervisor that had any involvement in this project. Ultimately, as we foreshadowed at the directions conference, we may need to call additional evidence because we don't know what the CFMEUs case is.

PN36

THE COMMISSIONER: Okay. I have heard enough thanks. I intend to let the witness statement in on the basis that it is marked for identification. I do so for these reasons; it is true that the document was served yesterday and I spent a considerable period last night reading it, and particularly comparing it with the chronology that the parties have - that was served on the union on 9 November. There are 25 serials in that chronology and I have matched the 25 serials to the evidence that is contained in the witness statement of Robert John Wallwork. There are no more than 25 and it seems to me that there has been sufficient knowledge of the issues which were the subject of the statement to allow an examination-in-chief and a cross-examination to be made of Mr Wallwork.

PN37

That is not to say that if the union, in due course, ask for an adjournment to submit rebuttal evidence that I would not favourably consider such an application. So on that basis I intend to mark the witness statement of Robert John Wallwork as document A and that is the document that has been identified by the witness and I place the witness back in your hands, Ms Hartley.

**** ROBERT JOHN WALLWORK XN MR HARTLEY

MFI #A STATEMENT OF ROBERT JOHN WALLWORK

PN38

MS HARTLEY: If you can clarify, since you have marked it for identification, what do you want me to do?

PN39

THE COMMISSIONER: When he is finished I will - - -

PN40

MS HARTLEY: When it's finished. Yes. Deal with that then.

PN41

THE COMMISSIONER: I will deal with it.

PN42

MS HARTLEY: Thank you, Senior Commissioner.

PN43

MR KUCERA: Before you proceed. So Senior Commissioner, as we proceed through the statement I suppose the only way we can go is each time we see a piece of evidence that we object to, we are going to have to stand up. So I don't know if there's a more efficient way of doing it other than me standing up each time we say we have a problem with a particular paragraph. Cross-examination alone is not going to be able to deal with questions of admissibility. In fact they are quite separate matters and so I'm just foreshadowing the - - -

PN44

THE COMMISSIONER: Yes, perhaps I should answer that. The Commission is able to inform itself in any way it sees fit. It is not bound by the rules of evidence but what it has to do is apply those rules in the assessment of the weight to be given to evidence. I take it, Mr Kucera, that from time to time you will tell the Commission of evidence that you think should be given a various amount of weight. Some of it you say should not be given any weight at all. You can offer that guidance to the Commission. The Commission will make up its mind in due course about that. I would anticipate that - and I am not running Ms Hartley's case for her - that the statement of Robert John Wallwork that has been received and marked is the total of his evidence-in-chief.

PN45

MS HARTLEY: The vast majority, Senior Commissioner. I have got a couple of questions to deal with some recent issues.

PN46

THE COMMISSIONER: Okay. Well if you can deal with those then we will see what Mr Kucera wants to do.

PN47

MS HARTLEY: Thank you, Senior Commissioner. At some point we need to get him to swear that the contents are true and correct, Senior Commissioner, because we seem to have missed that either way.

**** ROBERT JOHN WALLWORK XN MR HARTLEY
PN48

THE COMMISSIONER: I thought he had already done that. He is under oath and he has identified the document.

PN49

MS HARTLEY: Yes.

PN50

THE COMMISSIONER: That is sufficient.

PN51

MS HARTLEY: That's fine.

PN52

THE COMMISSIONER: I would give him the copy, yes.

PN53

MS HARTLEY: Thank you.

PN54

Mr Wallwork, in general how would you describe the current state of industrial relations on the project?---Not very good really.

PN55

MR KUCERA: I am going to object to that straight away. It's in the ..... evidence. It's a self-serving statement in its own desire to enhance their position in the application and that's one of the primary objections that we made about the contents of this statement.

PN56

MS HARTLEY: This is a pattern of behaviour - - -

PN57

THE COMMISSIONER: Just let me deal with the objection. Thank you for that and I will take it into account when I assess his evidence.

PN58

MS HARTLEY: Let me just put it on the record this is a pattern of behaviour application and in terms of proving whether or not something is probable, the cases go to show that the state of belief of the management as to whether or not there is going to be further industrial action is relevant and admissible evidence.

PN59

If I can get you to finish off your answer in terms of what your belief is as to the state of the industrial relations on the project please, Mr Wallwork?---Not very good. There have been now in excess of 46 days, whole days, of lost working due to industrial action since July last year. The dispute resolution mechanism in our structured agreement is repeatedly not followed. Repeatedly the crews are pulled out from underneath LKJV with little or no notice. That has implications for the work processes on the site, particularly the tunnelling. So I wouldn't - I'd describe the industrial relations environment of the project as poor.

**** ROBERT JOHN WALLWORK XN MR HARTLEY
PN60

What will the consequences of that be for the project?---There are multiple consequences there. Time is obviously a significant one. The cost to LKJV is also very significant. Perhaps more important than those two is the increased risk that the project is subject to and also the public, by having unscheduled stoppages to key and critical work processes, particularly the tunnel; and the activities that the tunnelling relies on, such as the structural works in the two underground stations and retrieval box in the Perth yard. There are also impacts on PTA, not only in those three areas but also in management of the Perth rail yard. In management of the Perth rail yard we need quite a number of isolations and shutdowns in the rail yard to complete the works within the powered yard. When the shutdowns occur, PTA have to put on buses for the public because the trains can't run and this is typically done on a weekend. We've had a number of instances where a scheduled shutdown has not proceeded or has been throttled and therefore the amount of work planned has not been carried out; and therefore more shutdowns and isolations have to occur. So there's multiple impacts.

PN61

In relation to the underling causes, as you understand them, for each of the different instances of industrial action, is there a commonality to them?---There seems not to be a theme. As you can see in the witness statement the issues arise from various directions. It's - they're hard to pick in advance and they seem not to be following a theme of a particular issue with the project.

PN62

So there is no issue that LKJV then can fix?---Well, I would have thought that every single one of these circumstances could have been resolved through the dispute resolution process if it had been allowed to run. But without using that, we can't fix these things. I mean, we get little or no notice of industrial action which leaves us scrambling to make safe the site for the period that the workforce aren't there.

PN63

Are the employees aware of the certified agreement?---Yes, in the package that's given to the employees on recruitment, the structural agreement is included in that, in full, and in fact the employees sign an acknowledgement that they have read and understood the certified agreement.

PN64

Have you had additional discussions with employees in relation to the dispute resolution procedures?---Yes. I've in fact recently done that. In fact within the last week I addressed the employees after the last round of industrial action last week and explained to them that there was a dispute resolution process in the agreement and said in my view that 99 per cent of all these issues could be resolved by that and I encouraged them to use it.

**** ROBERT JOHN WALLWORK XN MR HARTLEY
PN65

In relation to all of the periods of industrial action that are set out in the chronology, which is an attachment to your witness statement, have there been any claims by the employees or the CFMEU for any payment for any of that time lost?---No.

PN66

MR KUCERA: I object to that because it's not relevant anyway.

PN67

MS HARTLEY: Well, we submit that it is relevant.

PN68

MR KUCERA: How so?

PN69

THE COMMISSIONER: Do not argue down the bar table, thanks. Yes, you have made the objection. I will allow the question for the time being. I will rule on it later.

PN70

MS HARTLEY: Has there been any other stoppage on the site where the union has made a claim for payment?---The stoppages back in November arose over a claim for payment of night shift of 1.5 - by a multiplier of 1.5 instead of 1.25. Now that arose back in November last year on the night of the 10th and then the day of the 11th. Now since then there have been no claims to change the payment regime of the existing structural agreement.

PN71

Has there been a previous section 127 order that has applied to this project?---Yes.

PN72

When was that?---There were 127 orders put in place during November last year, between the 10th and 26th of November. There was also a 127 that's actually currently in - on foot, that expires tomorrow I think at 6 pm and that's been in place for the last 13 days. So, yes.

PN73

In your view does the section 127 assist the industrial relations on the project?
---Yes, I think it does. I think it does have an effect of modifying behaviour in relation to industrial matters. I think the Commission is well respected.

PN74

As the project director for LKJV, you are the person who is giving instructions in relation to this application?---Yes, that's right.

PN75

Can I get you to explain to the Commission why you are seeking an order for the life of the project?---The issue of industrial relations on the site is one of the most significant features of this project, unfortunately. The upcoming activities, and in fact many of them to date, are critical construction processes that are quite complicated that need to be well-planned and well thought out. The men need to be briefed in some detail on them and they need to be carried out exactly as planned, with the crews that are planned, with the manpower and the plant and machinery. The tunnelling is a particular example of that. The tunnelling has a unique risk profile and is really a process that cannot be messed with. It's underground. It's - all of it is either under roads, buildings or the rail yard so there's - and services intermittently as we go from the north to the south, and all of these things can be damaged by - if something goes wrong with the tunnelling. Now, it is inherently a very robust and safe process but it relies on workforce turning up to do the rosters and the shifts that are planned. We can't be exposed in a position where work is incomplete because that exposes the project and the public to additional risk. For example, we should not stop where we have excavated a ring unit and then not installed it. That increases the risk of - if something goes wrong like face pressure is lost, that the volume of movement of material will be large and able to propagate to the surface and cause settlement. Now that's bad enough for a road. It's particularly severe where that settlement cone crosses a service and breaks it; water main, gas main. Those - both those services themselves can cause additional damage if interfered with and there's the obvious issue of settlement occurring under a building. With respect to the buildings that we pass under we actually have a compensation grab mechanism in place that's a precautionary measure to modify building settlement. But having said that, we don't want to go out and test it. It's there as a precaution. It's not there to allow unscheduled stoppages under the buildings.

**** ROBERT JOHN WALLWORK XN MR HARTLEY
PN76

Thank you, Mr Wallwork. If I can take you to paragraph 158 of your witness statement. Can I get you to explain to the Commission what role overtime fills on the project?---Overtime - our standard working week is 56 hours a week. It's generally comprised of - during the day of five 10s and then a 6-hour day on Saturday. It's an accepted part of the construction industry that overtime is worked and our agreement specifically states that that will be the case in a couple of clauses in the agreement, including clause 4.2. There's an obligation to work reasonable overtime. It's a part of the construction industry. In fact if we were only paying 36 hours a week we'd probably have trouble keeping our crews. They'd probably consider that they didn't earn enough money to stay there. The project is also planned and the programs are put together based on a 36-hour week and that level of production.

PN77

I have no further questions of this witness.

PN78

THE COMMISSIONER: Okay, thanks. Mr Kucera.

<CROSS-EXAMINATION BY MR KUCERA [11.09AM]

PN79

MR KUCERA: Mr Wallwork, is this statement all of your evidence?---This is as much evidence as we can put together in the time covering the items that we've described.

PN80

So for the purposes of today, this is all of your evidence; this is the lot?---This is as near as I can make it. You'd be aware that in the Commission - - -

PN81

Hang on. I haven't asked a question yet. If I can take you to paragraph 19, and you state that McDonald informed the LKJV; who did McDonald inform?---My understanding was that it was Tony Carriss.

PN82

Are you sure?---Well, that's my understanding.

PN83

So why didn't you put it in your statement?---Well, I think that sentence there is complete.

PN84

You don't say who McDonald informed. You just say McDonald informed the LKJV. LKJV is not a manager, is it?---Well, the LKJV is the entity that is the signature[sic] to the structural agreement.

PN85

The same thing, paragraph 21. You say on 30 July McDonald was onsite talking to LKJV employees and then later on you go on and you say, "As a result of this meeting over the alleged occurrence, LKJV employees" - were you at the meeting?---No.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN86

Right. Was anyone from management at the meeting?---Yes.

PN87

Who was? What, a manager at a union meeting?---The event that we're talking about here is in relation to a supervisor of ours that we mentioned here.

PN88

All right. So as a result of this meeting; which meeting are you talking about?
---We're talking about the event that was alleged that Mr McDonald had been pushed.

PN89

But you say as a result of this meeting over the alleged occurrence, LKJV employees working at the William Street Station left the site at approximately 10 am and went home?---Yes.

PN90

Where was the meeting?---At the William Street Station site.

PN91

Again, were you at the meeting?---No.

PN92

Was the boss at the meeting?---At a meeting with the employees?

PN93

Yes?---No.

PN94

No, right. So you don't know what the result of it - well, you don't know what was said at the meeting, do you?---Well, we had - - -

PN95

You don't know because you were not there and indeed nor was any other manager from LKJV; that's correct, isn't it?---We weren't there. The - - -

PN96

The same thing on 18 August; you say a meeting of project employees was addressed by McDonald and CFMEU delegate, Peter Ballard. So were you at this meeting?---No.

PN97

Was a manager of LKJV at that meeting?---No.

PN98

So you say that the meeting was addressed by McDonald; how do you know it was addressed by McDonald?---Because the meetings are held off the site, either underneath the fig trees or out on the - and then after that, recently after the podium was built, out on the podium - - -

PN99

So where did you get - - -

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN100

THE COMMISSIONER: Let him answer, Mr Kucera?

PN101

THE WITNESS: So we can observe these meetings being held and can observe who's addressing them.

PN102

MR KUCERA: Who observed it then, from your company?---I'd have to check my records.

PN103

I thought this was all of the evidence?---The - - -

PN104

I mean this isn't a new application. This isn't a new application?---The details of the event are as described here.

PN105

Right, but you don't know who addressed the meeting?---Well, I do, because it says so there.

PN106

How do you know?---Because they were observed.

PN107

How do you know? You weren't there, were you?---But - - -

PN108

Answer the question, yes or no, it's very easy?---I wasn't at this meeting.

PN109

No managers from LKJV were at the meeting, were they?---No.

PN110

No, so you don't know what was said at the meetings?---I'm not saying I know what was said at the meeting.

PN111

All right, and you don't know what union officials said at the meeting either?---I don't know what was said at the meeting.

PN112

You don't know if union officials advised employees on taking a particular course of action either, do you?---I don't know what was said at the meeting.

PN113

Assumptions are being made; it's fair to say that; yes or no? An assumption is being made.

PN114

MS HARTLEY: That's not what the witness statement says.

PN115

THE WITNESS: It says that the meeting - - -

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN116

THE COMMISSIONER: When someone stands up, just wait. Ms Hartley, just run it again.

PN117

MS HARTLEY: There is no allegation and there is no evidence in the witness statement as to what was said. To start badgering the witness to say that he - you know, to try and draw inference that there is evidence, incorrect evidence, there. It's simply a statement as to who was addressed, following that they left.

PN118

MR KUCERA: I would appreciate if you would not mislead the Commission when you are saying these things because at the end of the day, when we come to closing submission, the inference that you will ask the Commission to draw is that the meeting was addressed by McDonald and Ballard and that it was McDonald and Ballard who procured the industrial action.

PN119

THE COMMISSIONER: Mr Kucera, why do you not just chat with me, otherwise we will descend into chaos. So you are perfectly entitled to make such a submission but make it to me on the basis that that is what you think; that the applicant will do.

PN120

MR KUCERA: No, I appreciate that, Senior Commissioner. I apologise.

PN121

THE COMMISSIONER: That is all right.

PN122

MR KUCERA: But ultimately the position that we make is that it's reasonable for him to answer the questions that were being put, as to whether or not there was someone who was there. I mean, we just don't know what role, from his evidence, the CFMEU officials played at that meeting. There is simply no evidence about it. So our position is the questions are entitled to - - -

PN123

THE COMMISSIONER: All the statement says is there was a meeting and some people went home afterwards. That is what the statement says and you have established that point.

PN124

MR KUCERA: Paragraph 36 you say, after making some other statements in your statement, "Night shift crew had been organised to commence work. Before they began, McDonald, Ballard and other union representatives called a meeting with the night shift crew and told them of the union ban that had been in place earlier during the day". Again, were you present at that meeting?---No.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN125

Was a manager of LKJV present at that meeting?---No.

PN126

So you don't know what was said at the meeting?---Is that a question?

PN127

Well yes; is that right?---Well, we were told what was said at the meeting by
Mr McDonald.

PN128

All right?---In paragraph 39.

PN129

You say he told Mr Carriss then?---Yes.

PN130

At paragraph 40 the events that are also described, you say in your statement - and you weren't at this meeting either, were you?---No.

PN131

You weren't present when the events described in this part of the statement occurred?---No.

PN132

You say:

PN133

As McDonald left the meeting he stuck his tongue out at Carriss. Carriss told McDonald the issue needed to be sorted out or else it might be his house - or else this time it might be his house.

PN134

It's a fairly interesting statement for a manager to make to Mr McDonald, is it not?---Yes.

PN135

THE COMMISSIONER: Just use words?---Yes.

PN136

MR KUCERA: Provocative even?---The context of it may or may not be provocative.

PN137

Okay, but you agree that it may be?---I can only say the context of it may or may not be provocative.

PN138

In relation to paragraph 41, you received reports you say that on 11 November McDonald, Buchan and Ballard and others attended the site at 6.45 am?---Yes.

PN139

Reports from whom?---From the supervisors at work that day.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN140

Where were you on that particular day?---I'd have to check my diary. I was certainly on site. Where I was at these times I'd have to check.

PN141

You say that after the meeting at about 9.30 am, Buchan informed Davidovich that the workforce, including LKJV direct hire employees, would not be attending for work?---Yes.

PN142

You weren't at the meeting with Davidovich either, were you?---No.

PN143

If we go on to paragraph 13.

PN144

THE COMMISSIONER: 13?

PN145

MR KUCERA: Paragraph 50 which is 13 November, sorry. My mistake. Paragraph 50. I have confused the number with the heading:

PN146

I was informed by Carriss that at approximately 6 am he received a telephone call from Davidovich to tell him that McDonald and other CFMEU representatives were on the site. The LKJV then attempted to commence their 7 am pre-start meeting.

PN147

Were you there when the LKJV attempted to start their meeting?---No.

PN148

Which officials of the CFMEU were present, do you know?---What I've described there is what I know.

PN149

From other persons you have spoken to?---Yes, as that says.

PN150

Okay. You say in your evidence:

PN151

The pre-start meeting did not occur. Rather, a meeting was held outside the Esplanade site which was attended by McDonald, Ballard, Buchan, Cavenagh, Hallard and Vinimolina.

PN152

?---Yes.

PN153

You didn't observe that, did you?---No.

PN154

Are you sure that all of those persons, as you have said in paragraph 51, were present?---I'm sure that they were observed there and that's been related accurately to me.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN155

I put it to you that in fact some of those persons were not even present at the meeting?---Is that a question?

PN156

Well, yes. I'm putting it to you that that's the position?---All right. I hear what you're saying. I - this is my statement.

PN157

So in other words you really don't know who or which CFMEU officials are supposed to have attended on that day?---My evidence is what I have written here.

PN158

Your evidence is what somebody else is supposed to have told you, isn't it?---I was informed according to the statement in paragraph 50.

PN159

Paragraph 51 is what I'm talking about and you were informed by someone else. At paragraph 50 you say:

PN160

I was informed by Carriss that he received a telephone call from Davidovich.

PN161

So your information is based on information you received from Carriss and information you have received from Davidovich; is that right?---The entire project is run on this basis, that the staff accurately and regularly report about all matters on the site. In such a large project I need to rely on the evidence, opinion, analysis and advice of other members of the team.

PN162

If your managers put a particular slant on things when they are reporting, that slant gets carried all the way to the top, doesn't it?---When you say the top, what do you mean the top?

PN163

To you, because from your witness statement, you were informed by Carriss who in turn is informed by Davidovich and potentially by someone else below him. If someone else below him doesn't get it quite right and then it goes to Davidovich and then it goes to Carriss and then it goes to you, your information might not be correct; is that right?---These are - - -

PN164

Yes or no; it's a pretty easy question. Your information might not be correct under those circumstances; is that right?

PN165

THE COMMISSIONER: There are options to answer that question so it is not a yes, no answer. So he is entitled to explore the options in his answer to you.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN166

THE WITNESS: In industrial areas and in other areas of the site the staff are obliged to accurately and regularly report to me. That's an obligation of their employment. The slant that's put on things is up for me to assess.

PN167

MR KUCERA: But if a supervisor further down the chain gets it wrong, wrong information might be carried to you all the way through the food chain; is that right?---That's possible.

PN168

So it's possible. At paragraph 54 you say, "I was informed that nearly all of the LKJV employees had turned up for work on this day." So your statement does not say who told you, does it?---No.

PN169

No, and then you say:

PN170

Some of the LKJV supervisors reported that some employees who had presented themselves for work had been turned away at the gate and had been directed to go to a CFMEU union meeting being held at the Esplanade.

PN171

?---Yes.

PN172

Your statement doesn't say which LKJV supervisors reported, does it?---Correct.

PN173

It doesn't give any details of the employees who had been turned away either, does it?---Correct.

PN174

At paragraph 55 you say:

PN175

Buchan had also informed a LKJV supervisor that the union view was that the men had voted at the last meeting to return to site on Monday and that he would be advising any of the crew who turned up for work of that position.

PN176

Paragraph 55 contains quite a serious statement about what it is Mick Buchan is supposed to have done on that day; you would agree, would you not?---It's an action that is accountable.

PN177

So it's a serious allegation, that he would be telling the crew not to turn up for work for Monday?---Mm.

PN178

Given the seriousness of that, your statement doesn't say - - -

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN179

THE COMMISSIONER: I am sorry, but that is not what the statement says. It says that Buchan had also informed an LKJV supervisor that a union view was that the men had voted at the last meeting". He asserts the union view that the men had voted to do something.

PN180

MR KUCERA: Yes.

PN181

THE COMMISSIONER: Not the union told them to do something and that is what you put to the witness. It is not being alleged.

PN182

MR KUCERA: All right.

PN183

So you are saying a particular view is being put by Mr Buchan, that that was the decision that the men had made?---Yes.

PN184

But your statement doesn't include the name of the supervisor that is supposed to have said it, does it?---No.

PN185

Or where that happened?---Yes.

PN186

Or the time it happened?---Yes.

PN187

So in other words there's no source, is there, for this in your statement?---In the statement there's no source other than that it's an LKJV supervisor.

PN188

At the beginning of your statement what you say at paragraph 9 is:

PN189

For the purposes of this witness statement I have conducted investigations, spoken to LKJV management teams and reviewed documents to obtain all the information contained herein.

PN190

?---Yes.

PN191

This is all of the information on what is supposed to have happened in paragraph 55, is it not?---This paragraph 9 refers to the origin of all the information contained herein.

PN192

Yes, but in paragraph 55 you don't have a source, do you?---Yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN193

In fact there is numerous things in your statement that you don't have a source?---I do have a source. I'm saying that I do have a source.

PN194

Okay. Well if you do have a source then that's at odds with all the information contained herein, which appears at paragraph 9. You said you have spoken to LKJV management teams and reviewed documents to obtain all the information contained herein. But not all of the information is here, is it, Mr Wallwork?
---That's not what paragraph 9 says.

PN195

No, 55. I'm back at 55. At paragraph 9 you say you conducted an investigation?
---Yes.

PN196

It says you have spoken to management teams, you have conducted investigations and reviewed documents to obtain all the information contained herein?---Yes.

PN197

It would be reasonable for us to assume that your investigations and your discussions with management teams and the like were thorough; is that right?
---Yes, I'd say they were thorough.

PN198

They were thorough. So thorough in fact that you neglected to overlook[sic] which LKJV supervisor Mr Buchan is supposed to have spoken to; is that right?
---I neglected to overlook?

PN199

So you neglected to overlook?---Is that what you mean?

PN200

Well, you said you have conducted a thorough investigation; is that right?---Yes.

PN201

But it's not thorough at all, is it?---No, I don't agree with that.

PN202

If it was a thorough investigation you would have been able to say who the LKJV supervisor was, wouldn't you?---With reference to records, I can say who it was.

PN203

But you said at paragraph 9 - I don't intend to go much further with this, Senior Commissioner - but you have said at paragraph 9 - - -

PN204

THE COMMISSIONER: No, I would not.

PN205

MR KUCERA: You have spoken to LKJV management teams, reviewed documents to obtain all the information. Clearly, all the information isn't here in relation to paragraph 55; is it?---That's not what paragraph 9 says. Paragraph 9 says:

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN206

All the information contained herein comes from the conduct of investigations, speaking to management teams and reviewing documents.

PN207

Obviously we beg to differ. At paragraph 57 and then there's E with a full stop on page 9 of your statement:

PN208

The meeting concluded at approximately 7.40 am and the employees were then observed walking off the site.

PN209

But your statement doesn't say by who, does it?---By who they were observed?

PN210

That's right?---No.

PN211

At paragraph 58 the matter referred to there, the meeting referred to there, that was another meeting that you were not present at; is that right?---Yes.

PN212

At paragraph 68 you said:

PN213

Following the Federal Court hearing the LKJV wrote to their employees to assist them in making an informed decision about their actions and to inform them that the industrial action had caused LKJV to apply for a section 127 order.

PN214

By an informed decision, you mean you wanted to tell the employees your point of view; is that right?---We wanted to - - -

PN215

It's an easy question; you wanted to tell the employees your position, didn't you?
---We wanted to tell them what - - -

PN216

Yes or no?

PN217

MS HARTLEY: Can Mr Kucera please let Mr Wallwork answer.

PN218

THE COMMISSIONER: Yes. You see, some of these questions are not capable of a yes or no answer. Because the first thing, Mr Kucera, the statement does not say what you impute it to say. It just says, "to assist in making an informed decision about their actions". You are imputing that that was designed to force a view upon the. That is not what the statement says. You can allege that is what it does but that is not what it says. So it is therefore hard for him to answer yes or not because he has got to tell you why he wrote the letter.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN219

MR KUCERA: You say you wrote to the employees to assist them in making an informed decision?---Yes.

PN220

By an informed decision, you mean that you wanted to put LKJV's point of view on the dispute?---No. No, I don't man that at all. No.

PN221

Right. So you wanted to put an objective point of view on a Leighton's letterhead; is that right?---We wanted to put the facts on the table.

PN222

The facts on the table, when the employees are in dispute with a company which has a different point of view in relation to the dispute; is that right?---Well, I can only repeat what I have aid. We wanted to put the facts on the table.

PN223

The facts as you saw them, Mr Wallwork. That's right, isn't it?---Well, no. The facts as they would be objectively viewed.

PN224

That's your opinion; the facts as they would have been objectively viewed, is it not?---I can't really answer that.

PN225

All right, we will move on. Paragraph 69:

PN226

I received reports that another mass meeting was organised by the CFMEU.

PN227

When did you receive the reports, Mr Wallwork?---On 18 November.

PN228

From whom did you get your reports?---I'd have to check the records.

PN229

Your statement doesn't say who you got reports from, does it?---No. No.

PN230

It is understood that the meeting was addressed by me?---Yes.

PN231

To explain the contents of the Federal Court orders. The meeting concluded at about 7.25 am. The employees left the site, did not return, and then you went on and you said:

PN232

I was informed that it did not appear, from observing the meeting, that the workers were given a chance at that meeting to vote as to whether they wanted to return to work.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN233

Firstly, how did you get the understanding of what happened at the meeting?---By reports from my staff.

PN234

Your staff?---Yes.

PN235

When you say your staff, you mean your supervisors?---The - well in this case the area managers and construction manager.

PN236

Who you have not named in this statement, have you?---The - those persons are mentioned in this statement in various areas.

PN237

But not in this particular paragraph about this particular incident?---In this paragraph, no.

PN238

"It did not appear from observing the meeting", so you had supervisors at the meeting?---No.

PN239

If you didn't have supervisors there, how did they observe the meeting?---The same way anyone else would.

PN240

How is that?---The meetings are held in plain view.

PN241

In plain view of where?---Well almost anywhere on the Esplanade. The compound, our site, the Esplanade site compound.

PN242

On this occasion, where was the meeting?---It says on the Esplanade.

PN243

Which part of the Esplanade? It's a big place; I was there yesterday?---Well, as I pointed out. There are two locations possible. The first was underneath one of the large Moreton Bay fig trees, directly to the north of the compound.

PN244

Okay, but on this particular occasion?---And the second is on the podium that was constructed late last year.

PN245

All right, but do you know where the meeting occurred on this occasion?---Other than on the Esplanade, that's as specific as I can be, which is what I've said in the statement.

PN246

Your statement doesn't say who informed that it did not appear from observing the meeting that the workers were given a chance?---That's correct.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN247

In other words you really don't know what occurred on that day and again you are relying on information from someone else?---No. That's not the case. Reports to me by the staff are considered that I know about it. Not only in industrial matters but all other matters and I'm obliged to take action when I'm so informed.

PN248

Would it be fair to say that your view in relation to the events of 18 November was the CFMEU caused the industrial action?---I think the actions of the CFMEU led to this industrial action and the cluster of industrial actions around this time.

PN249

Would you say they caused it; is that your view?---I would say that they led to it.

PN250

You don't think that the action was caused by the employees or taken by the employees off their own bat?---I don't have opinion on that at the moment.

PN251

At paragraph 75 you say:

PN252

At approximately 6.30 am McDonald approached Bevan and said certain things.

PN253

You weren't present when that occurred, were you?---No.

PN254

So it was just a discussion that's been reported to you by Mr Bevan; is that correct?---Yes.

PN255

At paragraph 79, "At approximately 8.40 I told McDonald" and then it goes to what it was you are supposed to have said to McDonald?---Yes.

PN256

You contacted him by telephone; is that right?---I don't recall.

PN257

You don't know when you spoke to him or how you spoke to him or where it happened?---At approximately 8.40 is when.

PN258

Yes?---This meeting was - this was face to face.

PN259

But a minute ago you said you didn't recall and now you are remembering that it's face to face; is that right?---This meeting was face to face.

PN260

Where did it happen if it was face to face?---In one of the meeting rooms on the Esplanade.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN261

You said:

PN262

We want an unconditional return to work but we will talk to you about a night shift payment for the finishing trades, should it be required.

PN263

?---Yes.

PN264

At that point, what, the finishing trades aren't covered by the enterprise agreement; is that right?---The finishing trades aren't listed in the structural agreement.

PN265

In fact there's a few classifications that are not in the structural agreement; aren't there?---That - what are relevant to - - -

PN266

To your project, yes?---Yes. Absolutely.

PN267

What are those classifications?--- Electricians.

PN268

Yes, but they are obviously represented by a separate union; is that right?---Yes. Yes, absolutely.

PN269

What other classifications that are on your project aren't in the relevant certified agreement?---Plumbers, I don't think are in it.

PN270

Again, represented by a different union?---Yes.

PN271

What about some of your direct employees? What other classifications aren't provided for in the certified agreement?---Metal trades.

PN272

Yes, they are also represented by a different union, aren't they?---Yes, well I'm asking - answering your question as you asked it.

PN273

Yes. No, that's fair enough. What about your tunnellers?---They're included in it.

PN274

Are they?---Yes.

PN275

Right, well we might come back to the structural agreement later but are you saying to me there's tunneller's classifications in the current certified agreement?
---No, the tunnelling works are included as the works covered in the description in the structural agreement.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN276

But not their classifications; is that right?---Their classifications aren't spelled out in the structural agreement.

PN277

At paragraph 97:

PN278

At approximately 7 am on 16 February an unauthorised meeting was held by McDonald on the Esplanade attended by LKJV.

PN279

?---Yes.

PN280

You don't have a source for that either, do you?---There's no source listed in paragraph 97.

PN281

It says:

PN282

Following this meeting McDonald informed the LKJV that the workforce was withdrawing their labour for 24 hours.

PN283

Again, who is McDonald supposed to have spoken to?---Well, that's a matter of record which I haven't listed there.

PN284

At paragraph 99 the same:

PN285

And the LKJV was informed that the strike was in protest at the PTA's handling of the matter.

PN286

?---Yes.

PN287

At paragraph 103 you say, "The certified agreement at clause 5.1.2", and you say, "States that the calendar of industry RDOs shall not apply to the work". Then you say:

PN288

Despite this, employees have continued to take RDOs and PDOs in line with the CFMEU industrial calendar and not with the calendar outlined in the certified agreement.

PN289

?---Yes.

PN290

Can the witness please be shown a copy of the certified agreement. Have you got one? All right. Now, Mr Wallwork, you say the calendar outlined in the certified agreement; can you take the Commission to the page where the calendar appears?
---Page 21.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN291

Page 21 is in fact the hours clause, isn't it? It appears at 5.1 under Work Pattern?
---Five is the work pattern, yes. 5.1 is hours of work, day workers.

PN292

Page 21 and page 22 there's the hours clause?---Yes.

PN293

Is there anywhere in this agreement where the actual calendar appears?---No.

PN294

So there's no calendar attached to this certified agreement; the only thing you have got to go off is what is in the hours of work clause?---Yes.

PN295

When the project started was there ever a calendar drawn up?---Actually the hours of work clause isn't the only clause that applies to hours of work. Is that what you meant?

PN296

Well, no, I'm talking specifically about the calendar that you say is outlined in the certified agreement. When this project started in July 2004 there was no calendar; is that right?---The project didn't start in July 2004.

PN297

Okay, well whenever it was the project started and this agreement was certified, because the agreement wasn't certified until July 2004?---Yes.

PN298

There was no calendar drawn up; is that right?---No.

PN299

In fact the first time a proposed calendar was reached between the parties was in March 2005; is that right?---A calendar was reached?

PN300

Yes?---Yes.

PN301

A proposed calendar?---Well, the proposal was actually apparent from the time - from July 2004, that the PDAs would be clustered on the non-working Saturdays.

PN302

Just let me stop you there, so you understand this. I know what the agreement says but there was no calendar drawn up, was there, as to how the PDOs and RDOs were going to be taken; is that right?---Well this is a calendar.

PN303

Mr Wallwork, you have already agreed the first time a calendar was drawn up was on 21 March 2005 and that was a proposed calendar to be put to the employees; is that right?---The calendar of work is described in this paragraph. The first
time - - -

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN304

Mr Wallwork I agree with - - -

PN305

MS HARTLEY: He has answered the question.

PN306

MR KUCERA: I agree with what you say about the hours clause. What I'm trying to say to you is the first time a calendar was drawn up was in March 2005, a proposed calendar. It was taken to the employees; is that right? Perhaps I will assist you. Go to paragraph 104 of your statement?---That states for 2005.

PN307

Yes, yes. What I'm putting to you is this; there was an agreement certified in July 2004; is that right?---Yes.

PN308

Right?---Yes.

PN309

But there was no calendar for the taking of RDOs and PDOs drawn up; is that right?---When?

PN310

There was no calendar drawn up. It wasn't ever done. I'm putting it to you that that's the position, isn't it?---When?

PN311

Following the certification of the agreement?---The working calendar is as described in here.

PN312

All right. Mr Wallwork, what I'm going to put to you to make it simple is simply this; there was no calendar of work ever drawn up. There was an agreement that was certified but a calendar, a formal calendar which says how the dates are taken in each month, was never drawn up. What I'm also putting to you is the first time it was drawn up was in March 2005 and that that proposed calendar was then put to employees at a meeting that you authorised; and that's dealt with at paragraph 104 of your statement. Do you understand what I'm putting to you?---I understand what you're saying. That meeting was to do with 2005. The working roster on the site was clearly understood by everybody on the site from the commencement of works.

PN313

No, Mr Wallwork, but that's not what happened. On your site the employer agreed to work to the industry calendar and the first time the employee decided to depart from the industry calendar was when he put a proposed calendar of RDO dates to employees in March 2005?---That's not correct.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN314

You agreed to depart from the calendar in the EBA because it was an agreed position?---That's not correct. It was never - - -

PN315

In March 2005 you put a proposed calendar to employees and that was the first time it had been taken; is that right?---That's - what you're saying is not correct.

PN316

Mr Wallwork, I'm putting to you the contrary proposition. You were quite happy to work to the industry calendar on your project, weren't you?---No. Never have been.

PN317

All right, but you did. You agreed to it?---We did never agree to it. We were never happy to work to it.

PN318

What about some of the subcontractors on your project; did they all have the same agreements as you?---What sort of agreements?

PN319

A certified agreement?---I'm aware that there are 13 registered structural agreements under the WRA for contractors who are working or have worked on this site.

PN320

Right. There's a significant number amongst your major subcontractors that don't have those same agreements as your own; is that right?---A significant number of major subcontractors don't have these agreements. No, I wouldn't agree with that.

PN321

Of your subcontractors that are on the project - and I think you refer to them in your statement somewhere. I will just go back:

PN322

Subcontractors on the job include Kompol, Ryobi, Blackadder, Alstra, Barclay Mowlem, Allbrook and VSL.

PN323

Okay?---Yes.

PN324

What industrial agreements do those companies have; do you know if any of those have the same agreement as you?---They have structural agreements certified under the WRA.

PN325

Does Blackadder have one of those?---I'm not sure about Blackadder. I don't know if they're one of the 13.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN326

What about Allbrook?---I think Allbrook have one.

PN327

But you are not sure?---Well, I think they have one. There's a list available on the website.

PN328

If they don't, then possibly you have subcontractors on your project that work to the industry calendar; is that right?---The subcontractors on our project work according to the working day set by LKJV.

PN329

So at the moment you are saying that those employees working for those subcontractors are what, working to the industry calendar or your arrangement?
---Our site is open for business in accordance with our structural agreement.

PN330

So now what you are saying is that this is a dead issue; you are working to the terms of your structural agreement; its that what you are trying to say?---No. The reason this is in here is because there have been the order of 17 days not worked that should have been worked, in contravention of the structural agreement.

PN331

Well that is your view but in actual fact what I'm putting to you, Mr Wallwork, is that the company was quite content to work the industrial calendar?---No, the company wasn't content at all.

PN332

In fact there's some subcontractors on your project that don't have agreements that line up with your own. They actually have agreements with industrial calendars in them; is that right?---I'm not aware of that.

PN333

And that is a source of friction amongst your employees, is it not?---I'm not aware of that either.

PN334

You say on 4 April 2005, at paragraph 107, that an unauthorised meeting was held by McDonald and it was attended by LKJV steel fixer employees. How many steel fixers does LKJV employ?---Now or at the time?

PN335

Well, at the time?---I'm not aware of the number.

PN336

Is it possible you didn't employ any?---No.

PN337

So you are saying it's not possible that you didn't employ any?---Most of our steel fixing was done by subcontract or is being done by subcontract.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN338

In fact that's always been the case?---I can't answer that for sure.

PN339

Your steel fixing is done by three subcontractors, T & L, Totals and Allbrook and LKJV does not in fact employ any steel fixers and it hasn't at any stage; is that right?---I'm not sure of that.

PN340

I'm putting to you that that's the case and we will bring evidence to assert the contrary proposition; what do you say to that, Mr Wallwork?---I've got no comment on that.

PN341

Paragraph 110, you say:

PN342

Following the meeting McDonald informed the LKJV that all the boys wanted to walk for 2 days. As a result work did not resume.

PN343

Your statement again does not say the supervisor who informed you?---Yes, that's true.

PN344

You are not able to say precisely what it was that McDonald said on that occasion either, are you?---I'd have to check the record about the supervisor's detail on it.

PN345

You personally can't, can you, Mr Wallwork?---The comment wasn't made directly to me.

PN346

On 29 April you talk about an incident that's alleged to have occurred on that date in 2005. You say you received a call from McDonald at 7.35 am on this day. You talk about what you say transpired?---Yes.

PN347

Can you remember what Joe's exact words were?---His exact words I cannot cite verbatim.

PN348

Now on that day following the meeting that you say occurred, there was a normal resumption of work, is that right?---Yes.

PN349

Right. And when you say generally supported a positive image for the project, what do you mean by that?---Well, I mean it's a project we're proud to be working on and it's a significant infrastructure development for Perth and it deserves and should have a positive image.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN350

Right. Now, McDonald had a particular gripe, didn't he, and his gripe was that he felt that the workforce was being unfairly blamed for the causes of the delays on the project; that's right, isn't it?---Yes.

PN351

Right. And what he wanted you to say was that it wasn't just industrial action that had caused delays, there were other structural issues as well because this a complicated project, isn't it?---Yes, it is a complicated project. That's not the way it was put to me.

PN352

But you have acknowledge that McDonald had a particular gripe?---Yes.

PN353

Were you prepared to come out and say that not all the delays were caused by industrial action?---That's not what I was asked.

PN354

All right. So, you can't remember his exact words verbatim. You know what his particular gripe was?---Yes.

PN355

What do you say you were asked though?---He said the blokes were stirred up over the comments by the minister in the West Australian and that it appeared as though the delays in the project were caused by the industrial action. McDonald asked me if I would - if he could relate this conversation that we were having to the men and say that LKJV did not think the delays were caused by industrial action. He - Mr McDonald was also was also concerned about what had been said by the minister particularly and I replied that he had no involvement in what the minister said and that we always supported a positive image for the project. And that's pretty much what I've said there.

PN356

I mean, effectively what McDonald wanted was - correct me if I'm wrong, he wanted you to acknowledge that it wasn't just industrial action that may have been causing delays, is that right?---No, no, that's not the way he couched it. He wanted me to say to him so he could relate like - but this is my understanding of conversation - he wanted me to say to him that the delays on the project were not caused by industrial action, and that wasn't something I was prepared to say.

PN357

Okay, but were you then prepared to say that there were causes other than industrial action?---I would have been but I wasn't asked that.

PN358

All right, so that's the basis on where it was left then?---Yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN359

And you probably didn't want to say that because it might have affected or impacted on your position to blame the union for delays in the future, is that right?---No, that's not right. My experience has been in the course of this project to be very careful about what I say because so many things get taken out of context and turned around and misinformed.

PN360

All right. Now, at paragraph 118:

PN361

An unauthorised meeting was held off site by the unions WA from 12 pm to 1.30 pm.

PN362

Now, when is the normal lunch break on the project?---At which site?

PN363

Well, on the project - you say off site, so, you're saying the whole site attended, what's the normal lunch break?---On which area of the project?

PN364

Look, I really - I'm just taking issue with what's in your statement. I'm just asking you questions about when you say that "an unauthorised meeting was held off site, the whole site attend", you say between 12 pm and 1.30 pm, it seems about lunchtime so I'm just asking when is normal lunch on the project?---Well there's - at which area?

PN365

Okay. Well, in all of the areas in the project?---Lunch on the esplanade is 12.30 to 1, lunch at William Street Station and Roe Street is 1 till 1.30.

PN366

Right. Does anyone go at 12 o'clock?---Not usually, no.

PN367

And there was a normal resumption of work at, you say, at 1.30 pm?---Yes, right.

PN368

Now, Thursday, 30 June - you point to a notice that is in the agreement in the witness statement?---Yes.

PN369

I'll just go to it if I could. I'm just going to find it, it's RJW7. Now, that was on 30 June. Now, this notice, you say, was issued by the CFMEU. Do you know when it appeared on the project?---Only that it was prior to 30 June.

PN370

Now, would you - is it in your view that the employees took strike action on this day as a result of this notice?---The site was open for business for the whole day. The men left at around 10 am and did not return. That was an unapproved absence from work.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN371

But do you say that the men went because of notices like this?---Yes.

PN372

Right. And where in the notice does it say, "You go on strike on that day"?---The timing of this meeting from 12 to 2 pm is outside the working hours.

PN373

Where does it say on the notice - - -?---Meal breaks - - -

PN374

Yes - that you go on strike?---Well I'm answering you question. This is asking the people to attend this rally during these times. Now, they're outside our lunch breaks. So, in that line under 30 June that repeats the times, that's where it's asking for people to be - - -

PN375

It doesn't say strike on the notice anywhere, does it?

PN376

THE COMMISSIONER: You can say yes to that and let's move on?---No, it doesn't say strike on the notice.

PN377

MR KUCERA: Now, in paragraph 122 when you're talking about the certified agreement, you say that you spoke with me and employees had several comments in relation to the terms of the proposal in the certified agreement. Would it be more accurate to describe comments as actually problems or issues with the proposed certified agreement?---I think the terms comments or issues or problems could be used interchangeably here.

PN378

All right. And in fact the new certified agreement has been quite a contentious question, hasn't it?---Not from our point of view.

PN379

But, if it's not contentious then, the agreement hasn't been approved by employees, has it?---No.

PN380

And there has been negotiations to put that agreement in place over an extended period of time; that's right, isn't it?---Yes.

PN381

Now, in paragraph 123, you say:

PN382

The meeting commenced at approximately 7 am I did not hear the meeting and could not hear what was said. However, I could see the meeting from The Esplanade site compound.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN383

Where was the meeting being held that you could see?---On the podium on the Esplanade.

PN384

Okay, and what distance were you from the meeting?---I'd say 80 metres.

PN385

80 metres, all right. Now, how is it you're able to say that you were aware that McDonald appeared to address the meeting from 7.35?---Because I could see him.

PN386

Right, so where did you see him from, where was your vantage point?---The site compound.

PN387

But whereabouts in the site compound?---Outside the mechanics' workshop.

PN388

Now, you let McDonald and other representatives of the CFMEU, you say. And you say:

PN389

McDonald informed me that there had been a cover up with respect to a safety incident.

PN390

?---Yes.

PN391

Now, that was an issue relating to an excavation where a major live cable had been dug up, is that right?---A 440-volt cable.

PN392

All right. And in actual fact what had happened was - and Mr McDonald was talking about a cover up - he was saying that the procedures hadn't - following a serious incident, hadn't been followed by - the reporting of the serious incident hadn't been followed by LKJV, is that right?---Is it right that Mr McDonald says that?

PN393

Well that's what he was saying the cover up was?---I understand that's what he was saying.

PN394

Right, and in fact that's what occurred, isn't it, the procedures hadn't been followed by the company in relation to that issue?---No, that's not true.

PN395

All right. Well, Mr Wallwork, I'll put it to you that there was in fact a cover up, that the procedures hadn't been followed by the company on this particular occasion?---That's not true.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN396

Well, I will put evidence to the contrary. But that's why the employees on that particular day were particularly riled because the procedures hadn't been followed?---The procedures had been followed.

PN397

Right. Well, in the view of the employees they hadn't and that's why they had taken action over the issue?---I'm not even aware that the employees view was that the procedures hadn't been followed.

PN398

MR KUCERA:

PN399

I then met McDonald and other representatives of the CFMEU. McDonald informed me there had been a cover up with respect to a safety incident which occurred and that the men were walking off site because of this.

PN400

What you just said, Mr Wallwork, stands at odds with what you have just - what's in your statement. Now, paragraph 128:

PN401

I understand that the meeting was in relation to a union levy.

PN402

How do you know that that was what the meeting was about, Mr Wallwork?
---Because that was conveyed to me by LKJV staff.

PN403

So, do we know this staff?---I would have to check my records.

PN404

Right, but it's not referred to in this statement, is it?---No.

PN405

Now, in paragraph 134 you say:

PN406

I believe that the reason for this meeting was to organise the blue flu on Monday, 1 August.

PN407

?---Yes.

PN408

Right:

PN409

After the meeting the workers were telling their managers that they would be sick on Monday.

PN410

?---Yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN411

All right. First of all, you believed that the reason - well, were you at the meeting, Mr Wallwork?---No.

PN412

Right, was there a supervisor at the meeting?---No.

PN413

So, which workers and which managers? So which workers are supposed to have told their managers they would be sick on Monday?---That's a matter of record of the particular managers.

PN414

Do you know?---I can't recite them to you now but the records will indicate who they were.

PN415

But that - so you have kept records of that then?---Yes.

PN416

Okay, and you have kept records of which managers that were supposed to have been told by employees that they'd be sick on Monday?---Yes, the managers kept diary records.

PN417

All right then. But that information isn't included in your statement, is it?---No.

PN418

All right. Now, You have attached at RJW9 a list of all LKJV employees who failed to attend for work on that day?---Yes.

PN419

Mr Ballard's included in that list, isn't he?---Yes.

PN420

Right. Now, at paragraph 140, you say that Ballard insisted that the tower crane not work due to the wind conditions. But Mr Ballard's supposed to have been sick on 1 August, isn't he?---Yes, that's true.

PN421

Right, so, and the document that you've attached actually shows that he was away sick?---Yes.

PN422

Because of the little tick on it?---Yes.

PN423

So, if Mr Ballard was off sick on 1 August, how could he insist that the tower crane not work due to wind conditions?---He had made that statement prior to this date.

PN424

No, he might have done but on 1 August 2005 you say in your statement that Ballard insisted that the tower crane not work?---Yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN425

You say on 1 August, but it didn't happen, did it?---No, I can't agree with you there.

PN426

Well, no, your statement says:

PN427

On 1 August 2005 Ballard insisted that the tower crane not work due to wind conditions.

PN428

?---Yes.

PN429

That's not a correct statement, is it?---I believe it is.

PN430

Well, how can it be? Mr Ballard wasn't at work on 1 August?---He has a mobile phone.

PN431

Right, so who rang him at home?---I have no idea who rang him at home.

PN432

All right, and at what time did they ring Mr Ballard on the mobile phone?---I don't know.

PN433

You don't know. Because it's simply not true is it?---I can't agree with that.

PN434

Well, how can Mr Ballard insist that the tower crane not work when he's not there? How can you say that when don't have any record to show that someone spoke to him?---Because I was advised that that was the case.

PN435

You were advised?---Yes.

PN436

Is it possible that your information is wrong in light of what I have just put to you?---In light of what you've just put to me, I would not consider this information to be any less accurate that what has been written there.

PN437

Well, Mr Wallwork, you shouldn't mess about, your statement's not correct at paragraph 140, is it?---I don't agree with that.

PN438

All right, well I put it to you that it's not. Now, you go on further and you say:

PN439

He would not allow an alternative and smaller crane to be used as in the view of the union this crane should only be used in emergencies. As a result the night activities were severely restricted.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN440

?---Yes.

PN441

And the same thing, you go on and you say:

PN442

Further, on this evening there was a second incident involving Ballard having informed LKJV to the de-watering crew out of hours was regarded as emergency crew and were not allowed to do any normal work.

PN443

"On this evening" - he wasn't there, was he, on that evening?---No, we're not saying that Ballard informed us on this evening of that, that had been a long-running issue.

PN444

Right?---There was a second incident involving the de-watering crew on that evening.

PN445

But your statement suggests that there'd been discussions with Ballard on that night, doesn't it?---No, we're not suggesting that at all, this was a long running issue. There was an incident on this evening but the emergency crew could not be used to attend to the fairly bad leak in the sheet pile wall.

PN446

Mr Wallwork, you're making this part up as you go along, aren't you?---No.

PN447

Well, you must be, because quite simply Mr Ballard wasn't there on 1 August and there's no evidence to suggest that he was and did those things?---If we're talking about paragraph 142 there's no implication that he was there on that evening. He had stated that these crews were emergency only and couldn't work out of hours.

PN448

Yes, but the problem is, Mr Wallwork, the heading, "Monday, 1 August 2005, Crane De-watering Crew Dispute", separates the heading beneath it, The suggestion is all of this happened on 1 August, doesn't it?---The noun in this paragraph is the "incident" which occurred on Monday, 1 August.

PN449

Right. Now, you said before in relation to distance to the compound, to the podium as I think you described it, was a distance of some was a distance of some 80 metres - - -?---Yes.

PN450

And you say:

PN451

On19August I observed an unauthorised meeting held by McDonald at 8 am on the Esplanade.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN452

?---Yes.

PN453

Where was this one convened?---On the podium.

PN454

So 80 metres away?---Yes.

PN455

And you heard them chant abusive things about John Holland, you say?---That should read - yes, that's what I heard.

PN456

All right. 80 metres away?---Yes.

PN457

That's quite a distance, isn't it?---Yes.

PN458

And you say the men collectively walked across the John Holland site. How far is that from the compound where you were standing?---It would be double that distance, maybe not quite double.

PN459

Now, your view is obstructed from the compound, isn't it, to where the CTA building is, isn't it?---The view of the Esplanade is partially obstructed.

PN460

Yes, there's a big block of toilets in the way, isn't there?---I just said it was partially obstructed, yes.

PN461

Now, you say that this meeting may have been connected to what Drummond reports as occurring in the daily report for 18 August, and then you say that Drummond reported that during the pre-start meeting?---Yes.

PN462

Now, Drummond reported. Did he do it verbally?---It's in his daily report.

PN463

And you didn't annex the daily report to your statement, did you?---No.

PN464

Now, was Drummond at the pre-start meeting that Ballard's supposed to have spoken at?---Yes.

PN465

Now, in paragraph 152 you say that:

PN466

Buchan had discussions with Flowerdew about inclement weather versus critical work. He advised the workers would operate on a range ops work stopped basis. LKJV did not agree to this. Workers were informed of LKJV's position

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN467

?---Yes.

PN468

Now, you've spoken about the certified agreement, haven't you, in your evidence today?---Yes.

PN469

And the certified agreement contains inclement weather provisions, does it not?
---Yes.

PN470

All right. Now, you weren't present when Buchan had his discussions with Jason Flowerdew, were you?---No.

PN471

No, so it's possible then that what Buchan was probably referring to was the process in the inclement weather provisions?---I don't think that's possible.

PN472

Why? You weren't there, so you really don't know, do you?---Well, you're asking me what I think, and I don't think that that's possible.

PN473

All right, even though there are inclement weather provisions in the agreement that deal with this question?---Yes, I can only repeat what I said.

PN474

Now, at paragraph 154, again you don't know what's discussed at the meeting. There are certainly no managers in attendance, are there?---No.

PN475

And at paragraph 156, you're talking about steel fixing?---Yes.

PN476

And you're talking about LKJV requested to work an extended shift?---Yes.

PN477

Now, you've been informed. In the statement you don't say who you've been informed by about these things, do you?---Yes.

PN478

You don't? That's right?---Yes.

PN479

And the steel fixing wasn't actually something that was going to be carried out by LKJV employees, is it?---Yes.

PN480

Right. It's going to be done by a subcontractor?---Yes.

PN481

Now, in paragraph 157, you say that the shift was rostered to do critical work. You say Buchan sent dayshift workers home?---Yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN482

Do you know what the critical work was?---It is likely that it was in the Perth Rail Yard.

PN483

But do you know what it was?---No, I'd have to check my records.

PN484

But ultimately in your view, you say it's critical work. Is that right?---I think where we've used the term "critical work", it would be viewed as critical by objective analysis.

PN485

In your opinion?---Everything's my opinion according to this process.

PN486

Now, in 159, you say:

PN487

Following this meeting, McDonald informed the LKJV that employees had made a decision to place a ban on all overtime.

PN488

Did McDonald speak to you on this occasion?---Yes.

PN489

He did?---Mm.

PN490

Okay, so, all right. Your statement doesn't say that though, does it?---No.

PN491

Right. So where did he speak to you?---In the Esplanade.

PN492

What were his exact words?---I can't recall his exact words. I can't cite them verbatim.

PN493

Now, you say at 162:

PN494

Buchan had a meeting with the night shift workers and LKJV were informed that night shift workers had also agreed to only work 8 hours.

PN495

?---Yes.

PN496

So where's Buchan supposed to have held a meeting?---On the Esplanade.

PN497

And who got spoken to inside LKJV?---The nightshift supervisor.

PN498

His name's not mentioned in here, is it?---No.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN499

Now, at paragraph 170 which is on page 24 of your statement, there's numerous crane operators employed by LKJV who withdrew their labour to attend a meeting organised by the CFMEU?---Yes.

PN500

So all your crane drivers left the site on that day?---Yes.

PN501

All of them?---That's my understanding.

PN502

Okay. How many crane drivers do you employ?---We have two on the tower crane, or had two on the tower crane. Some of the cranes are dry hired and some are wet hired. I can't give you the exact number.

PN503

Okay, but the wet hired ones mean the company you employ the crane
through - - -?---Yes.

PN504

- - - employs the driver?---Yes.

PN505

So the wet hire ones aren't your employees?---No.

PN506

And the tower crane operators, they weren't your employees either, were they?
---The tower crane operators I think were our employees.

PN507

Not employed by D&G Hoist?---I'd have to check that.

PN508

All right. So in other words, you don't know? If you have to check that, you don't know?---I'd have to check it, yes.

PN509

All right. In fact, what happened on the day of the meeting was that there were some crane operators who stayed back on site for safety reasons, weren't there?
---I'm not aware of that.

PN510

Right. So you don't know that either?---I'm not aware of that.

PN511

And that stands at odds with your previous statement though, that everybody left the site?---Crane drivers.

PN512

Yes, the crane drivers, they all left?---Yes.

PN513

What I'm putting to you is that there was some that stayed back for safety reasons?---All right, I understand what you're putting to me. I'm not aware of that.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN514

Yes. That's the position. Some stayed for safety reasons and you don't know. Is that right?---I'm not aware of that.

PN515

And the company received a significant period of notice before this meeting was convened, didn't it?---There - there was a flyer put out - it's listed at number 10 - actually the flyer isn't there.

PN516

But that's the position, isn't it? The company was given prior notice at a crane drivers' meeting?---No, we were aware that there was going to be a crane drivers' meeting before it happened.

PN517

Right, so before it happened. So what attempt was made by the company to work in with the CFMEU?---The site was open for business. We expected people to attend for work as usual. It was a working day under our structural agreement. What right did the CFMEU have to take our employees out from underneath us?

PN518

But you said they've all left, and what I've put to you is that there were some that stayed back for safety reasons?---Well, that doesn't ameliorate the fact that the flow of work on the day was halted, severely halted because of this action. That's - that's the problem.

PN519

But, Mr Wallwork, were you given prior notice though? There was a request made that workers be given time off to attend a meeting?---Are you saying that every time you give us notice to pull out the workforce you should be entitled to do it? I don't agree with that.

PN520

I'm not saying anything, I'm asking you, there was prior notice given - - -

PN521

THE COMMISSIONER: Yes, he's given you the answer a couple of times, so let's move on.

PN522

MR KUCERA: Now, the crane drivers working at William Street Station, paragraph 173, are they all LKJV employees?---I'm not sure.

PN523

Now, in paragraph 176, you say that McDonald came on the site and requested a one-hour meeting, which you later approved. Is that right?---Yes.

PN524

Now, later that day, paragraph 177, you say that McDonald called to query why Drummond was planning a concrete pour during the meeting. And then you called him back and you said, "I called McDonald and asked if six men could meet on the EBA the following day"?---Yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN525

McDonald refused and said he wanted them all at the meeting?---Yes.

PN526

Well - but the bottom line was, you'd already approved the site wide meeting, hadn't you?---I had approved the meeting, yes.

PN527

So despite you approving the meeting, Drummond decided that he'd plan a concrete pour?---Well, he had critical works to conduct and I asked if six men could discuss the EBA the following day. I think that was a reasonable request.

PN528

All right. So what critical works did he have planned?---He had a concrete pour planned.

PN529

Yes, but which concrete pour? Where was it?---Out on the foreshore.

PN530

Do you know whereabouts on the foreshore?---Between areas 2 and areas 4.

PN531

Which is the cut and cover tunnel part of the operations, isn't it?---They're a combination of dive structure and cut and cover tunnels.

PN532

Which could have waited until after the union meeting?---The flow of works requires that we do things in a sequence, because we are - have limited resources on site and limited room, This was a pour that was needed to maintain the flow of work.

PN533

Yes?---A reasonable request.

PN534

But, the purpose of meeting though was to communicate to all employees, changes to a proposed certified agreement. An important issue?---Yes, and that's why I agreed to the meeting.

PN535

Right. And so you're expecting the union now to come back and do something that it should have done once, twice. Is that right?---I don't understand the question, sorry.

PN536

Well, if you said that these six men could meet on the EBA the following day, the union was going to have to do the task twice?---I was asking the question.

PN537

Now, in paragraph 178, you say that McDonald spoke through the loud hailer, "so I could hear what they were saying"?---Yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN538

So, precisely then, what was it McDonald said during the meeting?---Well, I've related it here.

PN539

Have you? Where in your statement do you have the direct - the exact words that McDonald said?---The exact words aren't in there.

PN540

Right. It would be quite difficult to hear someone at a union meeting at a distance of more than 80 metres away, wouldn't it?---Well, he was using a loud hailer, I could hear what was being said.

PN541

All right, so did you take notes?---I made diary notes, yes.

PN542

All right, so from your diary notes, are you able to say what his exact words were?---No, I didn't keep a verbatim record.

PN543

All right, and you say that "I could hear what they were saying". Obviously you could hear what more than one person was saying at the meeting if you're making that statement?---More than one person used the loud hailer.

PN544

Right. And can you remember what their words were from the meeting?---I've made a record of - in my diary - of the gist of what they were saying.

PN545

The gist, okay. So, you say McDonald appeared to orchestrate an overtime ban - at the end of paragraph 179?---Yes, employees also voted to ban overtime the next week.

PN546

So what - so when he was orchestrating this ban, what were his exact words?---I can't recall his exact words, this is the impression that I got.

PN547

You can't even recall some of the words he used?---What I've said here is what I mean.

PN548

Yes. You took diary notes but you can't recall what was said?---No, this is my impression of the proceedings.

PN549

Right. Now, you talk about a meeting at 180 - paragraph 180 now. Now, at this meeting you say that McDonald notified LKJV that there would be, effective from that day, a ban on overtime and that this ban would last until Friday, 21 October 2005. Did you keep notes at the meeting?---I generally take notes post meetings.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN550

Yes, you haven't attached them to your statement, have you?---No.

PN551

And will your notes say that McDonald used those exact words "effective from that date, there'll be a ban on overtime" and the ban would last until Friday
21 October?---My notes will fairly accurately convey what was said.

PN552

Are you confident they say ban?---I'm confident that he used that term.

PN553

All right. So confident in fact, that you didn't attach it to your statement?---I can only repeat what I said.

PN554

I'm putting it to you, Mr Wallwork, that he didn't use those words. What do you say to that?---I say that that term was used by Mr McDonald.

PN555

All right. Now, at paragraph 188 you talk about CFMEU representatives tried to introduce new terms contingent on the men returning to overtime hours that were not agreed on 14 October. These included discussions of industrial representation on the nightshift. Don't you actually mean occupational health and safety representatives for nightshift?---No.

PN556

Well, that's actually what was discussed, wasn't it, Mr Wallwork? Safety representatives?---No.

PN557

Safety representatives to complement the team of representatives that included Mr Mel Peters and other people who you described were useful members of your team?---I mean what I say here.

PN558

All right. Now, the question here relating to the ….., you tried to introduce new terms contingent on the men returning to overtime hours that were not agreed. Now, I suppose you say that paragraph 188 - that on 18 October when you met with Mr Ballard and Mr Buchan, that this question of an ..... was a new one. Is that what you're saying?---What I'm saying is it wasn't included in the agreement of the Friday before.

PN559

But it was by no means new. In fact, it's been an issue with the tunnelling crew right from the inception of their engagement on the project?---It hasn't been an issue with the tunnelling crew at all. It's a relatively - - -

PN560

Are you confident about that answer?---It's - as conveyed to me, yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN561

So it's never been mentioned in correspondence from the union to the company?---Yes, it has, and in the relatively recent past. I would say within the last 1 or 2 months. This particular reference was to a couple of our employees who were having difficulty getting up and down the stairs. I went through this in some detail with Mr Peters in doing a risk analysis of it and it was specifically two individuals that he was referring to having difficulty getting up the stairs, one of which had left the project.

PN562

But the point is, the ….. question was by no means new?---It was relatively new, but it was not connected to our agreement of the 14th.

PN563

Relatively new, in your opinion?---I've conveyed the period of time.

PN564

Now, at paragraph 192, you say:

PN565

We had been told that the tunnelling work would not be going ahead on the weekend.

PN566

Your statement doesn't say by who, does it?

PN567

THE COMMISSIONER: What paragraph's that?

PN568

MR KUCERA: Paragraph 192?---192. That was expressed at that meeting. That's what we were told.

PN569

But there were reasons for that, weren't there? There were operational reasons as to why that tunnelling wasn't going ahead?---I'm using the term "tunnelling" broadly here, including the preparation of it.

PN570

The operations of the TBM, I'm specifically talking about?---The TBM was not - had been scheduled to start the week before. The exact start date was not known until some mechanical issues were dealt with. We had the parts arrive on that Friday and were hoping to start tunnelling as soon as the conveyor system was commissioned. Now, that could have been over the weekend and we wanted to work over the weekend.

PN571

But the reason it didn't start wasn't because of the CFMEU, it was because of operational reasons?---The - we wanted to work on the TBM for the reasons I've just mentioned, over the weekend, so we could start as soon as possible.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN572

All right. Mr Wallwork, I put to you that in actual fact there were operational reasons why the machine didn't start, why there was a delay?---I've just described what those operational issues were, and we were working to fix them, and we wanted to work over the weekend either fixing them or actually tunnelling.

PN573

Yes, but you say in your statement:

PN574

I informed the CFMEU the agreement reached with McDonald had not been met as employees had just been working 8 hours a day and we had been told that the tunnelling work would not be going ahead on the weekend

PN575

?---Yes.

PN576

Well, "we had been told that the tunnelling work would not be going" - your statement doesn't say by who, does it? You agree with me as much as that?---It was by one of those people at that meeting.

PN577

What, someone from the CFMEU?---Yes.

PN578

Who?---One of those people in the meeting.

PN579

Well, which one?---Well, I'd have to check our records on that.

PN580

Well, Mr Wallwork, your statement doesn't say by whom, does it?---No.

PN581

Right. And were you at this particular meeting?---Yes.

PN582

So you could have said who actually was at the meeting and made that statement?---I could have said that, yes.

PN583

But you didn't, did you?---No.

PN584

Right. Because no one from the CFMEU told you that the tunnelling work would not be going ahead?---No, that's not true.

PN585

All right. But you haven't attached your notes to your statement, have you?---No.

PN586

Right. Now, skipping ahead to Tuesday, 25 October, health and safety representatives were notified by the CFMEU to attend an unauthorised meeting on Tuesday, 25 October 2005 at 7.30 am?---Yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN587

It was in fact a training course, wasn't it?---It's as described in that number 12.

PN588

Right. And even if it's not a training course, the purpose of the meeting is defined by that agenda?---Well, it's described as a meeting.

PN589

And there are relevant questions there for employees on your project, isn't there? For instance, like national standard for high risk works, national standard for prevention of falls, precast panels loading policy, helmets regulation, general business?---Many of those areas are carried out - cover works carried out on the project. I'm not sure about the general business.

PN590

Now, the meeting was being convened by Mr Kavanagh from the CFMEU, wasn't it?---I don't know.

PN591

But either way, these issues that are mentioned on that agenda that would provide your safety representatives, or safety representatives working on your project, with important safety information?---They may do.

PN592

And previously the company has actually authorised occupational health and safety representatives to attend such meetings, hasn't it?---Authorised being the operative word.

PN593

Right. And it's paid them for attending those meetings, hasn't it?---The pay records will show those events.

PN594

All right. But - and your statement shows that the notice from the CFMEU to safety reps was dated 3 October 2005. 3 October?---Yes.

PN595

Right. That's in your statement as well. Now, if you can just go to that notice, there are some emails from you to some people, and then you say:

PN596

Guys please note this meeting is not agreed to and will not be paid for.

PN597

?---Yes.

PN598

Right. When did you decide that the meeting was not going to be a paid meeting that those employees could attend?---Pretty much as soon as I learned about it.

PN599

Right. When did you learn about it?---On the Thursday.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN600

Which is when?---Thursday the 20th.

PN601

So the 20th. That's what, 5 days prior to the course?---Yes, yes, 20th versus 25th.

PN602

And are you aware, Mr Wallwork, when the health and safety representatives were told about this?---When they were told, no.

PN603

Right.

PN604

THE COMMISSIONER: Is now a good time to break, Mr Kucera?

PN605

MR KUCERA: Yes, okay.

PN606

THE COMMISSIONER: Thank you. The Commission will take a recess to 2 o'clock.

<LUNCHEON ADJOURNMENT [12.54PM]
<RESUMED [2.04PM]

PN607

THE COMMISSIONER: Please be seated everybody, thank you. This matter is resumed.

PN608

MR KUCERA: Now, Mr Wallwork, just to take you back to the health and safety representative clause that we were going over just prior to lunch, I drew your attention to an email that you have attached to your statement and you say:

PN609

Guys, please note that this meeting is not agreed to and will not be paid for.

PN610

Is that right? They're your words?---Yes.

PN611

Now, can you recall when the employees were advised of that, the particular safety reps that were involved or don't you know?---The boot was on the other foot. The people leaving site, we expect that they'll do us the courtesy of telling us that they're leaving and explain to us why and request approval for it. Now, no one came to me and requested approval to leave site to attend this meeting.

PN612

So, no one came to you directly, right?---No.

PN613

But some employees actually went to a Mr Flowerdew, didn't they, who is one of the supervisors referred to in your email, Jason Flowerdew?---I'm not aware of that. Certainly my position on this is made clear in my email.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN614

In fact, Mr Flowerdew approved their attendance at the meeting?---I'm not aware of that.

PN615

All right. Well, you say you're not aware of it but we'll be leading evidence that what actually happened was that those employees were told they could attend the meeting by their supervisor but prior to the meeting you overrode his decision?
---What I have said is in my statement.

PN616

Okay. And Mr Renwick, he's also referred to in your statement, in the email that's attached there. Mr Renwick actually said to workers at Roe Street, to the safety reps on the Friday prior to the Monday meeting, don't forget to go to your safety rep's meeting on Monday morning. Were you aware of that?---Where is Mr Renwick referred to in the email?

PN617

Well, is he one of your supervisors on the project?---Yes, he is.

PN618

All right. Actually, he's not referred to in your email, in fact. But he's one of the supervisors on the project, isn't he?---Yes.

PN619

And on Tuesday following the safety meeting Mr Renwick actually asked those safety representatives to address a toolbox meeting to report to employees about what was discussed at the safety represents course. So, you're not aware of that either?---Are you asking a question?

PN620

Well, what I'll do is - are you aware of that?---No.

PN621

Well, I put it to you that that's what occurred and that ultimately it could be seen that Mr Renwick speaking to employees on the Friday reminding them to attend the meeting could well be construed as approval to attend the meeting?---Well, my position is clearly stated to all the area managers that this meeting had not been approved.

PN622

All right. What about Mel Peters, he's an occupational health and safety representative, was he paid for attending the meeting?---Our pay records will show.

PN623

But your position is that he shouldn't have been paid if he did, is that right?---My position is that people are not entitled to leave the site and withdraw their services from us without approval or authorisation.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN624

But if line supervisors give approval what's your position?---Well, as stated in this email of 20 October.

PN625

So not agreed to?---No.

PN626

Now, why then did it take almost a month from 3 October to form that view?
---There was no approach to me about leaving site when the site was open for business to attend such a meeting.

PN627

Why was it employees were told by Mr Turner on the 25th - safety reps were told on the 25th that they weren't supposed to go to the meeting and if they did they'd be docked?---That's a question for Mr Turner.

PN628

But the point is you leave it until the 11th hour to tell employees of your position?---Well, I mean I'm working under the assumption that people actually understand they have to stay at work and not leave the site and perform the services that they're being paid for.

PN629

So what you're saying is that employees health and safety representatives gaining information isn't performing the work that they're employed to do?---It gets back to what I said earlier. We need to have an ordered and planned and sequenced approach to the work on the project which includes knowing where people are and that they're carrying out their duties.

PN630

But if the employees approach their supervisors it's hardly conducive to an orderly way of doing things when supervisors say they can go and you later change your mind?---I never changed my mind on this. My statement is clear here. There was no request of me for our safety reps to leave the site, I mean, particularly for safety reps. They're on the project to do a job. They would be the least likely person we could do without during a shift.

PN631

Perhaps you should inform Mr Flowerdew of that. But the - let's go back to your statement again. 28 October you say at paragraph 203 there was a meeting regarding the EBA that was presented to employees. You say:

PN632

The proposed EBA was voted on by employees at 6.30 am on 28 October at an authorised meeting on the esplanade. I saw that Mr McDonald was addressing the meeting and I could hear parts of the conversation as Mr McDonald was speaking through a loud hailer.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN633

Where were you on that particular day?---In the Esplanade site compound.

PN634

Right. Near the mechanics workshop like you said last time?---Yes.

PN635

And you had a clear view of what was happening at the meeting?---Yes.

PN636

You say you could hear parts of the conversation. What parts of the conversation did you hear?---Well, I have stated in these following paragraphs.

PN637

All right. So are they the exact words as you recall them, are they?---No, these are not the exact words.

PN638

Right?---These are the meaning of the statements that were made.

PN639

But not the exact words, they're not the words that you hear coming from Mr McDonald's mouth through the megaphone?---No.

PN640

Now, you say here that he implied that the section 127 order was on the men. What did he actually say to the men?---He said words to the effect of despite the fact that there had been no industrial disruption on the site LKJV was still applying for a 127 on them.

PN641

So, you say words to that effect?---Yes.

PN642

All right. Well, putting aside what Mr McDonald may have said or may not have said, isn't it the case that that's what the company is actually doing?---No. At the time that wasn't true. The application for the 127 was on the CFMEU.

PN643

So you don't want an order against the employees?---No, the current order includes the CFMEU and the employees.

PN644

You didn't answer my question. You don't want an order against the employees?---Our application is for both.

PN645

So it's for both? So even if that's what Mr McDonald said it was quite truthful, wasn't it?---At the time it wasn't.

PN646

At the time it wasn't. Well, perhaps we'll go back and look at the application of the proposed orders. Now, in the next statement you say:

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN647

McDonald advised me that the men had not accepted the revised certified agreement. They had several issues including having to work on Saturdays, PDO RDO calendar inclement weather. I also believe that the CFMEU will not allow the new certified agreement to be approved while there is a section 127 application being heard.

PN648

?---Yes.

PN649

All right then, how then - what was the method that you say the agreement would - what method would you say was used by the CFMEU to have the agreement approved or rejected? How did they vote for it?---The basis of this comment here is - arises from what I said earlier about Mr McDonald saying that the commencement of the meeting regarding the EBA, the proposal of the EBA, started with the fact that this 127 was - an application was being set for a hearing. Now, from what I heard Mr McDonald say, there was no positive remarks from the CFMEU regarding a recommendation to sign the new certified agreement.

PN650

So why do you say you were disappointed that Mr McDonald wasn't banging the drum to approve the agreement?---Well, no, I'm not saying that. This had been the 12th or 13th iteration of this agreement that we've been through since January of this year. It was starting to look doubtful that there was any bona fide intention to actually get this revised agreement signed. Every time we discussed it there was a list of questions to be answered. Apparently feedback from the men that they weren't with this or happy with that, and this is all a matter of record and exchanged correspondences between LKJV and the CFMEU. They just seemed to be going on and on and on, every time we sat down to discuss it there would be new issues raised that we hadn't heard before.

PN651

Yes, it's a similar frustration, I appreciate, but the - why then hasn't the company - I mean, I'm loathe to ask the question but why hasn't the company bothered to use the process of the Commission and put it to a secret ballot?---Well, we have been negotiating this in good faith as we expected and thought the CFMEU were.

PN652

All right. So why hasn't the company put it to a ballot yet?---Well, for - - -

PN653

If you believe the union's been negotiating in good faith?---For exactly that reason, we believe that the agreement could be struck, acceptable to the men and put in place without the need for going through any external process.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN654

Now, on paragraph 206:

PN655

On this day I told Buchan that from Tuesday, 1 November onwards LKJV would strictly adhere to the code of practice including right of entry provisions and if they were not adhered to by the CFMEU the LKJV would take legal action.

PN656

?---Yes.

PN657

Right. Now, so the same day the enterprise agreement is rejected you tell Mr Buchan that the game is going to change with right of entry, is that right?
---No, the game wasn't changing. The right of entry provisions we would be insisting on.

PN658

Well, what had happened prior to 1 November then where there'd been strict compliance with right of entry?---Well, as you can see by the pattern of behaviour the CFMEU have come onto the site and created industrial action that would not have occurred if they hadn't.

PN659

Well, you're saying that?---Well, I certainly am.

PN660

But isn't the case that it was quite an open door policy?---No, it wasn't an open door policy at all. We sought to have a controlled workplace and relied on the good will and good faith dealings with the CFMEU.

PN661

Mr Wallwork, isn't it the case that this is a bit of tit for tat? The agreement was rejected so the rules changed and you decided to hide behind the code of practice to change those rules. That's the case, isn't it, Mr Wallwork?---No, that's not the case at all and in fact as you're aware and as I have stated, the tunnelling had also just started which required particularly tight control of the site for everybody. The tunnelling itself adds a new dimension to the works and particularly necessitates the close control of access and egress over the site.

PN662

All right. Well, Mr Wallwork, what I'm doing is evidence will be led that that has exactly been the case. The company has had an open door policy. It was an open door policy that was fostered by one of the people you work with, Mr Bevan, and that basically what happened from 1 November was the rules changed. The real disagreement?---Well, I'm not sure what rules changed. I mean the IRA and the WRA are the same and - - -

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN663

They're they same, are they - - -?--- - - - we're - well, they're the same as they were before this date. And we're just - we're insisting that because of the circumstances on site, because of the behaviour of the CFMEU and because of particularly the introduction of the tunnelling everything needs to be done with respect to right of entry in a controlled manner. And there's no attempt to block the CFMEU out here. We just need to have the operations on the site controlled and particularly we need to avoid the withdrawing of labour out from underneath us without notice, and without good reason.

PN664

All right. Well, then at paragraph 208 you say:

PN665

On 2 November at 6 am Mr McDonald attempted to enter the Esplanade site gate. He was declined access because he had not given any prior notice of his intention to visit the site nor had he given any purpose for visiting the site.

PN666

?---Yes.

PN667

You then say:

PN668

Later that day the CFMEU gave notice of his intention to enter the site on 3, 4 and 5 November 2005.

PN669

?---Yes.

PN670

Okay. So, he went there on the 2nd, you refused his entry on the 2nd and then on the 3rd he gave notice of his intention to enter on the 3rd, 4th and 5th. So, what happens on 3 November there?---That was on 2 November.

PN671

Yes. Mr McDonald gave notice and you didn't let him on, did you?---The notice was given on 2 November.

PN672

Yes, and you said later that day, that's in your paragraph 208?---Yes.

PN673

Then:

PN674

On 3 November I met him on the site and told him that he had not given proper notice and I asked him to leave.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN675

?---That's correct.

PN676

MR KUCERA:

PN677

After some further discussions he left.

PN678

?---Yes.

PN679

All right then, so you tell him on the 2nd to give notice. He goes away, he comes back on the 3rd after giving notice and you send him away?---Yes.

PN680

And this is after almost 16 months where the company doesn't do anything about right of entry, is that right?---No. We expected the right of entry to be upheld from day 1 and we would follow it from day 1.

PN681

Mr Wallwork, the reality is, isn't it, that workers on this project have been used to seeing their organisers on the project regularly and all of a sudden, on
1 November, the game changed, didn't it?---I can't comment on what the workers were used to seeing.

PN682

But you said to Mr McDonald on 2 November that if he gave notice he get on the project the following day, is that right?---We - well, what we've said is what's in RJ13 of 31 October.

PN683

Okay, that might be your letter but you said in front of people on the 2nd on the site, didn't you, that that's what would happen? If he gave the notice he'd get on the job?---If he gave notice according to the requirements of the IRA 79 and the WRA 96, then he could get access.

PN684

Now, paragraph 212:

PN685

I met with Mr McDonald and Ballard in company with Paul Farris.

PN686

Then you say later on down the paragraph:

PN687

I told him that if he gave us notice we could arrange for the employees to speak with McDonald. He asked if the CFMEU could walk around the site and I told him that they could not just walk around the site unaccompanied but we needed to escort them.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN688

?---Yes.

PN689

And that's what you said on 3 November?---Yes.

PN690

Now, on what basis do you say then that Mr McDonald - I mean on what basis do you say that Mr McDonald just simply can't go on to the site and see those employees?---Because we can't have our workforce pulled out from underneath us without notice. The - it depends on the style of right of entry and which Act it's under.

PN691

Okay. Well, he said who he wanted to see. He wanted to see those steel fixers?
---Well, the requirements of the Act and our letter of the 31st weren't met.

PN692

But none of those steel fixers are employed by you, are they?---No, but we're the occupier of the site.

PN693

Well, maybe so, but - - -?---And they're working for us and they can't be pulled out from underneath us.

PN694

Well, they're not working for you, are they, because they're not your employees?---The subcontractors work for us, their employees work for us.

PN695

What about their industrial instruments? Are they state or federal?---Well, it depends on which subcontractor you're talking about.

PN696

Well, you were intimately involved in this one. What was the steel fixer covered by?---Well, I have been advised by the CFMEU that the steel fixers are covered by a state agreement under the IRA 1979. I can't actually find it on the web but - - -

PN697

All right. Well, so why then is Mr McDonald being obstructed from seeing those employees?---He wasn't being obstructed at all. What I wanted to know was the details of him coming on, when and where so these workmen weren't pulled out from underneath us thereby disrupting the flow of the works and possibly presenting a safety hazard to the workmen who were left.

PN698

So, where's your right to insist on the names of the men that the CFMEU wanted to talk to?---Well, they wanted to do it during working hours as - under that state Act and therefore we need to know who was going to get pulled out of the job.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN699

So you wanted names of employees?---That's exactly right. We have to know who's being removed from the work processes. That's fundamental. And in fact, this was had out at the gate last Thursday in the presence of a state task force inspector when we insisted at the gate on being applied for entry to come in under the state Act to investigate suspected breaches of safety that we were within our rights to ask exactly what the nature of the breaches were. And this went on for the entire morning, all within the presence of the state task force inspector.

PN700

In fact, you were quite excited about that visit, weren't you, so much so you had a person there filming it for the entire time?---That's our right to do that and unfortunately we felt it necessary to do that.

PN701

Okay. So, we go from a situation on your project where union officials go on with the job without video cameras and without notice and there doesn't seem to be a problem and all of a sudden the rules change and now that's the way you're going to do business; is that right?---Well, there is and there has been a problem and that's why we're here today. And the problem has been elaborated in 30 pages of events that have been described that really speak for themselves. We can't have this sort of behaviour on the site and this level of disruption to the work and this exposure to risk conditions in quite complex construction processes.

PN702

But why then - why do you see a need to have to film employees seeing their union officials?---Well, we weren't filming employees. We were filming the discussions between LKJV and the CFMEU and the task force inspector.

PN703

Are you confident, Mr Wallwork, if I call for that evidence that you're going to be able to show this Commission that you weren't filming employees talking to union officials?---Well the video evidence will speak for itself. Now, we were advised by the state task force inspector that the filming of a confidential discussion between the CFMEU and the employees could constitute hindering of the right of entry. Now, we - as a consequence of that I advised the CFMEU authorised officers who were there to advise us when they were having a confidential discussion and we would turn the video camera and the taping off. Now, in fact, a great deal was made of that and discussion ensued over about 10 minutes around and around with that. But in effect, when we went out onto the site and went round and looked at the suspected safety breaches, not once did any of the CFMEU officials say, "I want to have a confidential discussion, turn the camera off" - not once.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN704

All right. So that's how we can expect right of entry to be exercised in the future, is it?---In accordance with the state and federal Acts and our structural agreement.

PN705

With cameras being put on union officials, is that what you're saying?---Our right - our right is to conduct that way.

PN706

All right. But is that the way you're going to do it?---I can't answer that. I don't know.

PN707

Well, is it or not? You're the boss?---We are going to comply and require that the CFMEU comply with the state and federal IRA Acts.

PN708

I didn't ask that. You have said that once. What I asked was is that the way right of entry is going to be done in the future? Are you going to film union officials coming onto the project when they meet with the employees?---I don't know.

PN709

And you think that's conducive to good industrial relations on the project?---Well, we need to protect the tunnelling. The tunnelling cannot be interfered with. Now, the union have shown a propensity to - - -

PN710

Now, hang on, I just asked you - - -?---Sorry.

PN711

- - - do you think that's conducive to good industrial relations on your projects, sticking a camera on union organisers trying to talk with the workers?

PN712

MS HARTLEY: Mr Kucera has again interrupted when Mr Wallwork was trying to answer the question.

PN713

THE COMMISSIONER: Just finish the question.

PN714

MR KUCERA: Do you think it's conducive to good industrial relations to film union organisers walking around the sites talking to employees on your project as you have done?---I think that if it gets people to comply with the agreement and the state and federal Acts that it will be conducive to good industrial relations.

PN715

If - - -?---Absolutely.

PN716

All right. Now, you say at paragraph 213:

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN717

I noted that the kitchen had already stopped work. It has been a consistent precursor to industrial action on our sites that the kitchen stops when industrial action is about to occur.

PN718

?---Yes.

PN719

Then you go on and you say:

PN720

I told him that with the men standing outside the gate and the kitchen having stopped it appeared that industrial action was about to occur. He did not deny that industrial action was about to occur.

PN721

?---Yes.

PN722

But personally he spoke to Mr McDonald and didn't say it was about to start either, did he?---No, he didn't.

PN723

Now, at 215 you say:

PN724

I saw McDonald speak to the men. I did not hear what he had to say. I did not see any activity that suggested the men voted whether by secret ballot or putting up hands. The meeting concluded at 10.40 and almost all of the employee left the site and ceased work that day.

PN725

?---Yes.

PN726

Now, do you know if McDonald told the employees to stay there?---To what, sorry?

PN727

To stay on the job?---Well, I have said I didn't hear what he said.

PN728

All right. Now, in paragraph 219 you say:

PN729

LKJV applied for a Federal Court injunction to enforce the order on
4 November and the matter was heard later that day. No order was made on that day and the matter was adjourned to a later date.

PN730

When was it adjourned to?---Till Tuesday - the following Tuesday.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN731

All right. And that was never proceeded with, was it?---No.

PN732

It was never proceeded with on the Friday either because there was a lack of evidence, is that right?---No, the issue was we hadn't been able to deliver all the notices - deliver all the orders.

PN733

All right. But either way there was no injunction dealt with on the Friday?---No, it was adjourned.

PN734

On 7 November you say:

PN735

I addressed the men with the purpose of clarifying the events of the past few days and addressing some apparent misunderstandings.

PN736

?---Yes.

PN737

Okay. Was it one meeting that you had?---No, there were three.

PN738

And where were the meetings held?---In the foreshore at William Street Station and at the Roe Street in Perth yard.

PN739

During those meetings there were some questions posed, weren't there, by Mr Ballard?---Yes.

PN740

You didn't answer the questions, did you?---Yes, I did.

PN741

What were Mr Ballard's questions then?---Mr Ballard asked why Mr McDonald had not been able to attend the meeting on the foreshore.

PN742

Yes, and what did you say?---I said that there was a private meeting between LKJF and its employees and its subcontractors, that we weren't hiding anything, evidenced by Mr Ballard being in attendance but that it was a private meeting which we were entitled to hold.

PN743

Mr Ballard asked you more than that though, didn't he?---He said that there had been some complaints from the men that the process servers had been rude to the men when they were delivering - or rather to the men's families when they have been delivering process service the day - on the Friday before.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN744

Yes, what else did he ask?---I'm not sure what else Mr Ballard asked. There might have been something else. I can't recall. Mr Peters asked the question.

PN745

Sorry, Mr Peters asked - well, what about?---He asked, given the 127 that had been put in place what was going to happen on the national day of stoppage on the 15th.

PN746

All right. Now, you apparently said to the employees that the events arose because the CFMEU did not give LKJV a right of entry notice according to the provisions of the state and federal Acts, is that right?---Yes.

PN747

And you have said in your statement:

PN748

I have stressed it was not LKJV's intention to target the workforce by inflaming the situation. What LKJV wants is a stable workforce and the grievances would be dealt with by the dispute resolution procedure.

PN749

Now, you say it's not your intention to target the workforce by inflaming the situation. Mr Wallwork, the orders that you're seeking from this Commission aren't just against the CFMEU and its officials, are they?---No.

PN750

No, they're not. So, you weren't entirely being truthful to the workforce, were you, when you said it wasn't your intention to target the workforce?---No, it isn't and it never has been.

PN751

So, why didn't you tell the employees that it was your intention to get an order that would limit their ability to take industrial action? Why didn't you be straight with them?---Well, we were - I was being as straight with them as I could possibly be.

PN752

Or as straight as you wanted to be, Mr Wallwork?---No, no, I was being absolutely as straight with them as I could. I answered all the questions that were asked in a direct manner and I explained to them the nature of the issue the week before, the fact that we needed to control right of entry because of the work processes on the site. We need to maintain them and not put them at risk, particularly the tunnelling.

PN753

All right. Mr Wallwork, then what did you do when Mr Peters asked about the national day of action?---He asked, given that there was a 127 in place and would span that date what was going to happen on the date and I said that I did not know.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN754

Subsequent to that meeting, your supervisors advised employees that they could take the day yesterday, is that right?---No.

PN755

No, it's not?---No, it's not.

PN756

Are you sure about that?---Yes.

PN757

Are you sure you didn't have any supervisors on the project distributing leave forms to employees prior to the national day?---We had a supervisor hand leave forms back saying that they would not be approved.

PN758

Back?---Yes.

PN759

After you scotched the request for leave?---The site was open for business. It's our right under the agreement to only give leave to the extent that it does not disrupt the processes of work on the ordinary business day and that's exactly what we did.

PN760

Well, Mr Wallwork - - -?---It's no different to any other day.

PN761

Mr Wallwork, if that was your company's position then, why were supervisors handing out leave forms to employees?---They weren't handing out leave forms. They were handing them back.

PN762

Well, I put it to you Mr Wallwork, that what actually happened was is that supervisors gave employees leave forms as early as last Saturday in advance of the national day of action. What do you say to that?---I say that our position on yesterday has consistently been that the site is open for business and it will be treated as any other day.

PN763

So what's the difficulty with the supervisor handing out the forms?---Well, I don't have a difficulty with that. You seem to.

PN764

Well, no, I don't have a difficulty with it at all, Mr Wallwork. The question I'm putting to you is, if that was the company's position why was a supervisor doing something that was contrary to the message the company was sending its employees?---Well, I'm not aware of the circumstance that you're talking about. What I am aware of is supervisor receiving leave applications and handing them back saying to them that they wouldn't be approved.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN765

Mr Wallwork, there appears to be quite a lot of things you're not aware of. You'd agree with me, wouldn't you?---Well, no, I wouldn't agree with that at all.

PN766

Right. In fact, your statement is full of things that you're not really aware of, isn't' it?---No, wouldn't agree with that either.

PN767

Even though there's big gaps in your statement, Mr Wallwork?---Well - - -

PN768

Big gaps. You didn't name supervisors, you didn't name events, you didn't name conversation, exact words. You couldn't put notes in the statement. There's lots of gaps in your evidence, isn't there/ Mr Wallwork?---No, I wouldn't say there are gaps in this evidence. I would say that in the available time that this paints a picture of a patter of behaviour that should be stopped.

PN769

In your view, Mr Wallwork?---Absolutely in my view. That's the one I can give.

PN770

Okay. Now, you say at paragraph 223:

PN771

I have been informed by Reynolds that employees that will not be working on 15 November.

PN772

?---Sorry, what - - -

PN773

Yes:

PN774

I have been formed by Mr Reynolds that employees that will not working on 15 November.

PN775

?---Yes.

PN776

When were you informed?---Back in the meeting in August.

PN777

In August?---Yes.

PN778

So, what, almost 3 months ago?---Yes.

PN779

Three months ago?---23rd August, yes.

PN780

Which was a meeting where you were discussing the EBA, is that what you're saying?---Yes.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN781

Right, without prejudice communications between the parties, is that right?---No.

PN782

Why do you say no?---Because there was nothing without prejudice about this discussion on the stoppage of 15 November. It was not said without prejudice.

PN783

So is it a standard practice of yours to say when things are without prejudice and when they're not without prejudice?---Yes, it is.

PN784

It is?---Mm.

PN785

So, what are you saying, that union officials need to know that when you say that it's - when you don't say anything that it's not without prejudice?---Yes.

PN786

So when did you communicate that to people?---When did I communicate what?

PN787

Well, when did you communicate that that was how you were going to operate in negotiations with people?---All negotiations, unless they're stated to be without prejudice are not without prejudice. That's the usual manner of negotiations in the industry.

PN788

Really?---In my experience.

PN789

That's a bit deceitful, isn't it, Mr Wallwork?---Well, in my experience that's the way the industry operates.

PN790

All right. So is that the only time three months ago when you spoke to
Mr Reynolds about that meeting?---About - - -

PN791

The national day of action. Is that the only time you spoke to Mr Reynolds about that stoppage?---I can't recall. There may have been another time but I have no memory of it.

PN792

Then the next paragraph is interesting, paragraph 224. You say:

PN793

McDonald frequently makes comments to me threatening further industrial action such as, "If you continue with a section 127 application there will be war.

PN794

A fairly serious allegation, Mr Wallwork?---They have actually been made within this building.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN795

All right. So, your statement though doesn't tell you when the allegations were made and what was said, does it?---Well, what was said is what's shown there in italics.

PN796

All right?---Now, that's been repeated actually within this building in between hearings and conciliation conferences.

PN797

Discussions you say aren't convened on a without prejudice basis?---Well, I - my experience is that when there's a without prejudice discussion being had it's prefaced by that comment.

PN798

So can you give specific dates then when Mr McDonald is supposed to have frequently made these comments?---Yes. I could inform you of them. I would have to check my notes.

PN799

All right. So why didn't you put it in your witness statement?---Well, with time and tide - - -

PN800

It's too late now, Mr Wallwork?---Time and tide, this is as much as I could put in it.

PN801

So that's as much as you can put in, all right. So, in other words, that's the extent of your evidence about what Mr McDonald is supposed to have said about threats of further industrial action. In other words, there is no evidence to this effect, is there, Mr Wallwork?---Only that I have heard it and I'm here telling you that that's what was said to me.

PN802

But if you'd have heard it, Mr Wallwork, you would have put it in your statement, wouldn't it?---And I have.

PN803

Yes, but you didn't put when, how, the time, the date. That's all you have put in here. That's right, isn't it?---Well, I can confirm to you that this was said to me.

PN804

Yes, but you haven't told us a date or a time or whenever?---That's true.

PN805

Well, if you could confirm it when was it?---It was during discussions within this building, within the last two months.

PN806

Well, when?---Well, I'll have to check my notes to be more specific.

**** ROBERT JOHN WALLWORK XXN MR KUCERA
PN807

But you haven't annexed your notes to this statement, have you?---Well, what's annexed is what you see and as you can see there are notes of mine annexed there.

PN808

MR KUCERA: All right. Just before I close then, Commissioner, what we also propose to do following the hearing today is provide you with a list of paragraphs where we have specific objections to hearsay giving evidence and matters that we say are the subject of without prejudice communications. Other than that I have no further questions.

PN809

THE COMMISSIONER: Any re-examination, ma'am?

PN810

MS HARTLEY: Lots, Senior Commissioner. Lots and lots and lots and lots and lots.

<RE-EXAMINATION BY MS HARTLEY [2.45PM]

PN811

MS HARTLEY: Mr Wallwork, as part of the preparation for this witness statement, did you arrange for the daily diary notes that made reference to industrial action to be collated?---Yes.

PN812

Can you explain what the daily diary notes are?---They're accounts by supervisors and foremen and area managers and other engineers of their firsthand details of discussions, events, to do with industrial action.

PN813

Approximately how many supervisors and area managers do you have reporting through to you?---We have got one construction manager, six area managers. Now, these - the six area managers also have a superintendent each and then the superintendents have from two to four foremen reporting to them.

PN814

In relation to the witness statement - and I'll take you through to paragraph 19, it's been put to you by Mr Kucera that you don't actually have knowledge as set out in the witness statement?---Yes.

PN815

I propose to show you a number of daily diary notes from Des Block, Geoff Rigby, John Sodden, Des Block again for 15 July, Des Block, Geoff Rigby, Josh King, and Ness. I don't have copies of these.

PN816

MR KUCERA: I'm going to object to them because this application has been on foot even from - even the witness statements, it's been a number of months. We haven't been a process of discovery. We have a witness statement that goes in which we are protesting against because of its - because of the way in which it's been compiled and coddled together.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN817

We have got major objections to the admissibility of large tracts of it. And then when we start to cross-examine and challenge the witness on it, and point to the gaps, the other side appear and all of a sudden turn up with diary notes and extracts in an attempt to buttress their arguments, a highly irregular way of proceeding, Senior Commissioner, and at best can only be described by trial by ambush. The organisation that I represent, and certainly the officials that I represent, have a right to have some procedural fairness in relation to all of this.

PN818

If we had know prior the hearing that we were going to have to respond to diary extracts and whatnot, then we would have been able to go through and see whether there's parts in the documents that are favourable to us and equally we'd be able to see just exactly the documentary case upon which this case against us is being brought. We just haven't had the opportunity to do that.

PN819

It's a bit late now we say to be tendering these documents without it causing some material prejudice to the CFMEU and its officials and ultimately our members as well. So I strongly object - - -

PN820

THE COMMISSIONER: There are a couple of issues there, that the presentation of this material was invited by your style of cross-examination. What you have done is challenged the witness, as you're entitled to do, upon his memory, and you have on numerous occasions said, where are the notes? He said, I have got the notes. His counsel would be derelict if she didn't get up and say, well, look, here are the notes and she's entitled to do that in re-examination.

PN821

MR KUCERA: Yes, but Senior Commissioner - - -

PN822

THE COMMISSIONER: That's a different issue to the issue of - the other issue which you ran - ran the two together about whether you are ready to respond to this argument. I mean, if I were you I'd be thinking about, well, maybe I'm not ready. Maybe I should be asking for time to get myself ready for the argument and you will be criticised if you had made that submission because you should have been ready already. But at the same time the Commission is sympathetic to get the right evidence before it regardless of how that happens and it was going to be and it has been on notice for a long time, that Ms Hartley's client was going to run this type of attack.

PN823

They have made it clear when - on the first 127 that they wanted to get an order for the life of the project. Ms Hartley said in her submissions to me in the first 127 that I gave, we want one for all of the project but it would be unfair on the CFMEU if we ran it now. But they have put you on notice that that was in their mind 6 months ago. And so it's been going on but having said that, if you make a submission about adjourning so that you are able to face what's being put it, I'll ask Ms Hartley what her comments are and what instructions she has from her client in respect of that.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN824

Now, what I want to do is get the best evidence in front of the Commission so the Commission makes a right decision. That's my interest in getting all the data before me. I don't know whether you want to have a think about how you want to proceed for the rest of the day but as far as I'm concerned, these diary extracts, in view of the way you have gone about your cross-examination, they're entitled to produce in re-examination.

PN825

MR KUCERA: But Senior Commissioner, with respect, the first thing is - and I mean ultimately I am foreshadowing an application that this matter be adjourned so that we can look at the material. The witness statement gets served on us yesterday. We examine the witness statement overnight, the short period of time that we have to do so, and we see paragraph 9 which says:

PN826

For the purpose of this witness statement I have conducted investigations, spoken to LKJV management teams, and reviewed documents to obtain all the information contained herein.

PN827

Now, a reasonable assumption could be drawn on that statement that everything that's relevant to his evidence is going to be included into it.

PN828

THE COMMISSIONER: No, I disagree. It doesn't say - that's not what those words say at all. They just say, I have looked at - I have conducted investigations, I have spoken to people and everything that I have got in here comes from those. That's all it says. It doesn't say there's not more.

PN829

MR KUCERA: But Senior Commissioner, the other thing we have also said when we first came in this morning was that because of the strong objections we have to all of the material that's contained in this document, we wanted an opportunity to go away and lodge some submissions in relation to the material that we would have objected to and no doubt arising from that we would have come back and said, well, where's the source documents? Where's the source material? And so that's where we're now at a disadvantage because we have gone down the track, we have cross-examined the witness. He's come up with answers that have said, there's all these other source documents that I haven't included in here and probably should have. Well, what we're saying is that that process should have been - that point should have been this morning when we first raised our objection.

PN830

On the basis though that we're now being surprised with new information that we should have seen and haven't been provided with then we request that we be given an opportunity to go away and look at all the material that's now going to be put against us.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN831

THE COMMISSIONER: Okay. Ms Hartley, what do you say, ma'am?

PN832

MS HARTLEY: Thank you, Senior Commissioner. The Commission has been copied in with the correspondence from the applicant in this matter from the beginning. Unfortunately I have had experience in the past with trying to run pattern of behaviour applications against the CFMEU and unfortunately Mr Kucera is predictable which is why from the beginning we set out in immense detail the chronology. A huge amount of work was put in by the applicant to make sure that the CFMEU was on notice of exactly what case they would be required to answer.

PN833

To this point we still have no information from the CFMEU what their response to any of the matters in that chronology are. They have withdrawn from the response that they provided; that's their right to do so. But as we have said in our correspondence throughout this whole time, we will continue with this application and their failure to respond or participate in the application - we would strongly object to being used as a basis for an adjournment. They have had more than ample opportunity once they saw the matters that we were raising to ask for any documents that were going to be relied upon. We have taken it upon ourselves to assist in the running of this matter to give them all the time from yesterday to go through the witness statement.

PN834

The issues that are being raised in cross-examination by Mr Kucera we have to say are red herrings. Mr Wallwork is the project director for a project worth hundreds and hundreds of millions of dollars. He has numerous managers reporting to him. The site, as the Senior Commissioner, has inspected, is a big site. Now, we have got volumes and volumes and volumes of diary notes and diary entries by Mr Wallwork that sit down and describe what he has put in his witness statement. He has sworn to his witness statement. Now, if Mr Kucera is trying to delay these proceedings by requiring us to provide those documents now, we would simply seek that the current 127 continue until that process goes ahead.

PN835

But, with respect, I suspect that he will argue against that and say, no, no, no, we need to have the 127 dropped. It's just a game and with respect this Commission deserves more respect than that. The people that are involved in these proceedings are experienced practitioners. Now, we have bent over backwards in anticipating the CFMEU's arguments to make sure that this day would not be wasted.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN836

THE COMMISSIONER: Can you just help with me one thing?

PN837

MS HARTLEY: Yes.

PN838

THE COMMISSIONER: Can the order that expired on - the previous one be extended now?

PN839

MS HARTLEY: Well, you probably have to make one in identical terms but you would probably have to make a new one. I'm not sure that you - well, you have probably got the power to extend that order but it's - we have to join the proceedings.

PN840

THE COMMISSIONER: Yes. I think what we should do is allow the re-examination to continue, Mr Kucera, reserving your rights, so that if there is material that you regard as new material introduced there that you can have a further opportunity to examine Mr Wallwork. And I think that's the way we will go ahead and deal with this matter, subject to you having an opportunity to convince me that that's not appropriate.

PN841

MS HARTLEY: Thank you, Senior Commissioner. If I can hand up to the witness eight daily diary entries for 14 and 15 July - I don't have an extra copy.

PN842

THE COMMISSIONER: Look, what I think we should do is - I think we - I don't want Mr Kucera not to have that information that you're going to put in now while the questions are being asked. So I think we'll stop and you can give him those documents that you are going to put in so he - to do that now. I don't know how long that's going to take. I can only sit another hour today. So I might be - if we adjourn now for that to happen and I will get Madam Associate to just fix another time very quickly so we can resume the matter.

PN843

MS HARTLEY: That would be fine. Can I ask that the order be extended?

PN844

THE COMMISSIONER: I don't know whether I can. I'll hear from Mr Kucera on that.

PN845

MS HARTLEY: If not, I'll seek that a new order be made in the same terms - - -

PN846

THE COMMISSIONER: Yes.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN847

MS HARTLEY: - - - under this application.

PN848

THE COMMISSIONER: Yes.

PN849

MR KUCERA: Well, on what basis would the order be extended because there's no industrial action that's happened.

PN850

THE COMMISSIONER: Yes.

PN851

MR KUCERA: And this case is all about whether or not there's probably industrial action and so far we haven't completed the process of determining whether it is probable and, Senior Commissioner, I don't want to interrupt but there's been an argument made that there's some justification for extending it and want to be heard on that because our position is there is no justification to extend.

PN852

MS HARTLEY: With respect, the transcript of the proceedings before McCarthy DP make it clear that his decision was to insure that the order was in place until these proceedings have finished.

PN853

THE COMMISSIONER: Yes. Well, I will go away and read the transcript before the Deputy President and his decision and I'll let you know I accept your motion that the order be extended and I will rule on that.

PN854

MS HARTLEY: Thank you.

PN855

THE COMMISSIONER: And I have heard Mr Kucera say that shouldn't happen and I know the reasons. So I will adjourn on that basis.

PN856

MS HARTLEY: Can I just make one further point - Mr Wallwork is still under re-examination.

PN857

THE COMMISSIONER: Yes.

PN858

MS HARTLEY: The usual principles that I don't speak to him, can I put it on the record that I may need to talk to him about other matters, other than his re-examination.

PN859

THE COMMISSIONER: I will discharge him so that you can do so with the usual cautionary which I don't need to make in your case.

<THE WITNESS WITHDREW [3.00PM]

PN860

MS HARTLEY: Thank you.

PN861

THE COMMISSIONER: Okay. All right, the Commission is adjourned on that basis.

<ADJOURNED INDEFINITELY [3.00PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ROBERT JOHN WALLWORK, SWORN PN20
EXAMINATION-IN-CHIEF BY MS HARTLEY PN20
MFI #A STATEMENT OF ROBERT JOHN WALLWORK PN37
CROSS-EXAMINATION BY MR KUCERA PN78
RE-EXAMINATION BY MS HARTLEY PN810
THE WITNESS WITHDREW PN859