C2005/1168, Transcript of Proceedings [2005] AIRCTrans 2510 (12 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13565-1

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

10.31AM, MONDAY, 28 NOVEMBER 2005

Continued from 16/11/2005

Hearing continuing

PN862

THE COMMISSIONER: Good morning. Any changes in appearance?

PN863

MR R J HOOKER: Good morning, Commissioner. I seek leave to appear as counsel for the Australian Building and Construction Commissioner intervening, we submit as a right, under section 72 of the Building and Construction Industry Improvement Act.

PN864

THE COMMISSIONER: Yes. The Commission has received notice of the intervention, thank you, Mr Hooker. You say you appear as a right; you don't offer any other reason?

PN865

MR HOOKER: Well, I can elaborate on how we submit that right flows from the text of section 72.

PN866

THE COMMISSIONER: If you wouldn't mind?

PN867

MR HOOKER: I'm happy to do that, Commissioner, given that it's new legislation and it's an entitlement we say is of some significance for this kind of proceeding. The Commission who I represent, who I may abbreviate to Commissioner, or ABC Commissioner from time to time, is an office-holder under section 9 of the Building and Construction Industry Improvement Act 2005. Do you have, Commissioner, a copy of that legislation?

PN868

THE COMMISSIONER: Yes, I have.

PN869

MR HOOKER: So that office is created by section 9 of that Act. Various functions of the Commissioner are enacted by section 10, and pertinently, those functions include, in section 10C, instituting or intervening in proceedings in accordance with this Act.

PN870

THE COMMISSIONER: Yes.

PN871

MR HOOKER: Also of some significance, we say, is section 10A(1) which provides for monitoring and promoting compliance with this Act and the Workplace Relations Act. So that's not as directly relevant to the intervention per se, but in terms of submissions we would put in due course, were the intervention recognised, that would be of some importance. Then, Commissioner, when one has regard to the text of section 72, several things are apparent. In our submission, the entitlement to intervene is conditional on four things being present or occurring. There must be a matter before this Commission, that must be a matter that arises under the Workplace Relations Act, and those conditions we would say are self-evidently satisfied.

PN872

That matter must involve a building industry participant, or building work. That takes us to the definition of some importance to this new legislation which is in section 5 of the Act. Without taking you through it chapter and verse, Commissioner, building work relevantly includes things like, in 5(1)(b), the construction, alteration, extension of railways, and in 5(1)(d), any operation that is part of, preparatory to or for rendering complete work covered by paragraph (b), in subparagraph (1) it includes, among other things, tunnelling. So we would say, self-evidently, on the nature of the evidence that's been led so far in these proceedings, the Commission ought find, at a threshold level, that this is a matter - quote, unquote - that's about building work.

PN873

It flows from that, in turn, that there is one or more building industry participant as defined in section 4 of the Act. Those people include building employees, building employers and building contractors. We say some of those definitions are satisfied, but it's unnecessary at this point to go into that in detail because there is self-evidently building work for the reason I've explained. Fourthly, the entitlement to intervene is conditioned on the provision of a written notice, which I understand from you, Commissioner, has been received by the Industrial Registrar resident in Perth. I have given copies of those to my learned friends, Ms Hartley and Mr Kucera.

PN874

I have an original signed by the Commissioner himself, if that's of assistance?

PN875

THE COMMISSIONER: Yes. Can you just file that, thank you, and that will become part of the record.

PN876

MR HOOKER: Yes. Can I make this other observation, Commissioner, given the significance of this for the functions and purposes of my client? It would not be open to argue, in my submission, that there is some implied requirement of leave that is to be read into section 72. That's the case, we submit, when one has regard to related provisions concerning intervention in the Workplace Relations Act. For example, if one considers the text of section 470 and 471, one will see that differentiation in language.

PN877

On the one hand in section 470, there is the specific enactment of a power to grant leave where section 470 is applicable for diverse organisations, persons or bodies, yet on the other hand in section 471, the minister, that is, the Minister for Workplace Relations, may intervene in the public interest in proceedings before the Federal Court, and that's not conditioned on that leave requirement which is specifically written into section 470. There's a similar dichotomy, Commissioner, when one has regard to intervention before this Commission which can be seen from sections - - -

PN878

THE COMMISSIONER: 43.

PN879

MR HOOKER: Indeed, 43 and 44. So 44 is analogous to 471, it's an entitlement to intervene. Indeed, there's that condition of the giving of written notice, whereas section 43 is the familiar provision which Members of this Commission will regularly apply when asked to form that opinion, that a person or body should be heard. So we say we're not in that territory here. We don't have to demonstrate that there is an interest or an issue at stake so as to satisfy the Commission accordingly.

PN880

THE COMMISSIONER: Okay. Do you intend to call any evidence?

PN881

MR HOOKER: I do not.

PN882

THE COMMISSIONER: Okay, thank you. Ms Hartley, do you have a view, ma'am?

PN883

MS HARTLEY: I do. My instructions that Leighton Kumagai Joint Venture supports the intervention of the ABCC in this matter, but subject to the qualifications that we would not like to see it delay the hearing in any way, shape or form. If the Commission pleases.

PN884

THE COMMISSIONER: Mr Kucera?

PN885

MR KUCERA: Senior Commissioner, we have a different view of the legislation. Our position is that it doesn't give the ABC Commissioner an automatic right to intervene in the proceedings, or just simply appear as a party whenever it sees fit. Otherwise, we may as well install the revolving door on the Commission now. The reason we make this submission is if you go to section 10, which Mr Hooker referred you to, it talks - - -

PN886

THE COMMISSIONER: The Building and Construction Industry Improvement Act?

PN887

MR KUCERA: Yes, yes, Senior Commissioner. Section 10E talks about providing:

PN888

- representation to a building industry participant who is or might become a party to a proceeding under this Act or the Workplace Relations Act. If the ABC Commissioner considers that providing the representation would promote the enforcement of this Act or the Workplace Relations Act.

PN889

That seems to suggest that one of the functions of the Commissioner is, is to actually stand in the shoes of an employer. When you look at the nature of the proceedings under section 127, if I can just take you to that?

PN890

THE COMMISSIONER: What Act are we in now?

PN891

MR KUCERA: The Workplace Relations Act.

PN892

THE COMMISSIONER: 127?

PN893

MR KUCERA: Yes. It is my mistake, I apologise, Senior Commissioner.

PN894

THE COMMISSIONER: Just let me find it. Yes, I have it.

PN895

MR KUCERA: Subsection (2):

PN896

The Commission may make such an order of its own motion or on the application of (a) a party to the industrial dispute; (b) a person who is directly affected or who is likely to be directly affected by the industrial action; or (c) an organisation of which a person referred to in paragraph (b) is a member.

PN897

Well, the ABC Commissioner doesn't fall into the two latter categories, (b) or (c), because it's certainly not a party that's directly affected or a person that's directly affected, and we'd submit that it's not a party to the industrial dispute either. Now, where that takes us to is a submission that if you look at section 72 of the Act, and when I say the Act now, I mean the Building and Construction Industry Improvement Act, there appears to be a discretion conferred on you, we would submit, because it says:

PN898

The ABC Commissioner may, by giving written notice to the Industrial Registrar, intervene in a matter before the AIRC that arises under the Workplace Relations Act.

PN899

Now, this particular provision, we say, has to be read in tandem with section 10 and there would need to be some compelling reason demonstrated as to why it is the ABC Commissioner ought to be able to just simply intervene in proceedings. The word, "may comma", we'd say doesn't necessarily eliminate your discretion under the provisions that exist under the Workplace Relations Act. Now, effectively what it means is, is that if they're allowed to intervene it establishes a situation where in any applications where they are not a party directly affected or directly concerned, they can waltz in and make submissions and involve themselves in a dispute that is ultimately confined to two parties.

PN900

THE COMMISSIONER: Okay. Thank you.

PN901

MR KUCERA: Just before I do sit down, Commissioner, there is one point I do want to raise. This notice was served on us - well, we haven't received notice. We were advised or notified on late Friday afternoon that this would be the position, so we haven't had much of an opportunity to hit the books and provide a fuller argument in relation to this matter, and given that it is, to my knowledge, the first time this has been done anywhere in the country, it's possibly something that the parties ought to go away and consider properly. Now, it's not a situation of the CFMEUs making, Senior Commissioner, these proceedings have been on foot for a while and it is a point that ought be explored because we think that there's an important issue at stake for processes of conciliation and arbitration more generally.

PN902

THE COMMISSIONER: Thank you. This is my response. Section 43 of the Workplace Relations Act gives a power to the Commission generally to allow an intervention. Essentially, as I read section 43(1), that power is a discretionary power and the discretion is for the Commission to decide whether a body should be heard in a matter before the Commission. If the Commission reaches that state of mind, it may grant leave to the organisation or person or body to intervene. It's a broad discretion to allow intervention generally. The interplay of the Workplace Relations Act and the Building and Construction Industry Improvement Act 2005 then comes into play.

PN903

Mr Kucera relies on section 10E in respect of provision of representation for a building industry participant which he said allows an employer to - well, the Commissioner to stand in the shoes of the employer. Well, that in my view would allow the Commissioner to stand in the shoes of anyone who is a building industry participant, not necessarily an employer; it could be an employee and it ignores the other functions of the Commissioner which are set out in section 10 of the Act, in particular 10A and B and in specific terms, the powers that are contained in 10C which allow for intervention in proceedings in accordance with the Act. The Act itself then does make specific provision for intervention in proceedings.

PN904

For instance, under section 71, the ABC Commissioner - let's call him that - is empowered to intervene in court proceedings if the matter is in the public interest and it arises under the Act, or it arises under the Workplace Relations Act. In that case, the ABC Commissioner, is taken to be a party and has all rights, duties and liabilities of a party. Section 72 then discusses the intervention of the ABC Commissioner in proceedings before this Commission and it provides that the ABC Commissioner may, by giving written notice to the Registrar, intervene in a matter before this Commission, in a matter that arises under the Workplace Relations Act and involves a building industry participant or building work, as defined in the Act.

PN905

It doesn't talk about rights, duties and liabilities of a party as section 71. What it does is create the Commissioner at large to make an intervention and the discretion contained in that section is a discretion of the ABC Commissioner, not the discretion of this Commission. I think when you put those things together, the intention of parliament seems to be that the ABC Commissioner is at large to intervene in proceedings in this Commission. This is no public interest test insofar as intervention in this Commission, and when the Commissioner files a notice and properly appears, it seems to me that this Commission is obliged to grant the intervention, and I do.

PN906

I think, Ms Hartley, we need to complete the re-examination of your witness?

PN907

MS HARTLEY: We do. We need to recall Mr Robert Wallwork and re-swear him.

PN908

THE COMMISSIONER: Yes. So we recall Mr Wallwork for that purpose, and we will re-swear him, Ms Hartley, yes. Thank you.

<ROBERT JOHN WALLWORK, SWORN [10.47AM]

PN909

THE COMMISSIONER: Ms Hartley, the Commission has received a copy of the documentation that you served upon the CFMEU through Mr Kucera, and that will become part of the record?

PN910

MS HARTLEY: It will. I note for the record Mr Wallwork has got not just his copy of his witness statement, that he has those two bound copies of the documents as well.

PN911

THE COMMISSIONER: Yes. Thank you.

PN912

MS HARTLEY: Which I'll take him to now.

<RE-EXAMINATION BY MS HARTLEY, CONTINUING [10.48AM]

PN913

MS HARTLEY: Thank you, Mr Wallwork. In front of you, do you have the copy of your witness statement that we were referring to last time?---Yes.

PN914

You still have that there? Thank you. You also have two other bound volumes of copies of documents in front of you, do you not?---Yes.

PN915

In relation to the smaller bound copy, can you explain to the Commission what those documents are?---The smaller bound copy is the extracts from my diary records relevant to the events that I've cited in my witness statement. Some areas have been blanked out, where there's confidential discussion that's not relevant to the proceedings here.

PN916

When you say not relevant, is that on anything to do with industrial relations, or is it on other matters?---No, it's on other matters.

PN917

So you only - how many sets of diaries do you keep?---I keep one set.

PN918

So that covers everything? Industrial relations and all other matters?---Yes.

PN919

Thank you. I seek to tender that bundle.

PN920

MR KUCERA: Is the tender the entire volume is it, Commissioner?

PN921

THE COMMISSIONER: I'm sorry?

PN922

MR KUCERA: Is it proposed that the entire volume be tendered?

PN923

THE COMMISSIONER: That's what is being offered to the Commission.

PN924

MR KUCERA: Yes. Just before we go there, one of the things that I do want to submit, though, Senior Commissioner, is I went back through the transcript last week and when specific questions were asked in relation to whether there were some notes or documents kept, they were in relation to specific paragraphs of Mr Wallwork's statements, so critical paragraphs, critical dates, and I understood the position to be that where he said, "I'd have to check my diary notes" or there's notes available in relation to questions that were asked about those particular paragraphs, they would be the only documents that would go in.

PN925

What we're now seeing, though, is - and I've read this volume and the other one, is now trying to put in every document that they think is going to assist their case, even though I might not have asked the question, asking him for a specific source. Can you understand what I'm trying to submit?

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN926

THE COMMISSIONER: Yes.

PN927

MR KUCERA: Yes. So we'd actually object to the whole volume being tendered, and if there's going to be further documents put to Mr Wallwork, then it ought to properly arise out of a matter that came up in cross-examination.

PN928

THE COMMISSIONER: Let's see what Ms Hartley's intention is.

PN929

MS HARTLEY: Thank you, Commissioner. The intention is that, whilst Mr Kucera may only have got Mr Wallwork to make reference to his diary notes in relation to a number of specific paragraphs, he did as he went through the witness statement challenge the credibility of Mr Wallwork in relation to his recollection, in relation to whether or not he was present at various conversations, and we'd submit that these diary notes are relevant to that. They directly address those issues that were raised by Mr Kucera in relation to the 25-odd instances of industrial action that are referred to in the chronology.

PN930

Mr Kucera, for the CFMEU, has not admitted any of the instances of industrial action and yet again we're here without knowing what their case is. It's like working in the dark, but on the basis of what he's challenged the whole way through his cross-examination, he challenged in Mr Wallwork on the basis of the inference or the suggestion that Mr Wallwork - that the reason that the hearsay was inadmissible or shouldn't carry any weight is that Mr Wallwork wasn't there or didn't have independent recollection of the events as they occurred. We submit that for all of those, Mr Wallwork's contemporaneous notes taken at the time are directly relevant to supporting his credibility in terms of his direct knowledge as to the instances of industrial action, the conversations that occurred.

PN931

THE COMMISSIONER: Okay. How are we going to relate each note to a piece of evidence? Because that's what re-examination does. And for instance, on the first two pages, just on the bottom it says, "J McD on site, meeting with the men over" someone's employee, something, "no notice called" or something like that. Mr Wallwork looks like he ought to be writing prescriptions, actually, because I can't read it particularly, but how does that assist me to deal with this objection that has been made by Mr Kucera consistently through almost every paragraph of the statement? How do I relate it to a particular event?

PN932

MS HARTLEY: Well, they're Mr Wallwork's notes - - -

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN933

THE COMMISSIONER: Yes, but it has no date - - -

PN934

MS HARTLEY: It does have a date up the top, 14th of the 7th 2004.

PN935

THE COMMISSIONER: Well, the page I was looking at hasn't got a date.

PN936

MS HARTLEY: Apologies. I have - - -

PN937

THE COMMISSIONER: So, all right, I can see that the first - that's the first page and that seems to be - the second page seems to be a copy of the first page.

PN938

MS HARTLEY: Yes, but then every other extract has - - -

PN939

THE COMMISSIONER: And then, "15/7" something "home on strike". Okay. I see that. So you say every one's got a date?

PN940

MS HARTLEY: Every one's got a date and all of those dates correlate to the dates either of the industrial action or of meetings and conversations that are referred to either in Mr Wallwork's statement or that have been referred to as part of the cross-examination.

PN941

THE COMMISSIONER: Now, do you intend in your re-examination to go to each of these and match it to the statement in the paragraph in his witness statement?

PN942

MS HARTLEY: I can do, Senior Commissioner.

PN943

THE COMMISSIONER: Okay. I think if you - - -

PN944

MS HARTLEY: It depends on the nature of Mr Kucera's objection. If he's going to object only to those documents on the basis that he's saying that he didn't specifically raise that issue with Mr Wallwork - and I have to say, again, this is an objection that he's taken and hasn't bothered to give us notice of it. Again, another delaying tactic by the CFMEU, but notwithstanding that, we will deal with it and the issue is that if he wants to object to those, then we can go through them dot by dot, but we'd say that the issue is that the cross-examination of Mr Wallwork went through every one of the instances of industrial action and even if there wasn't a specific reference to whether he took a diary note, and I have to say the majority - that question was raised.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN945

Mr Kucera did raise general questions in terms of saying that the diary notes for any of these were not attached to the witness statement and that none of the original documents were attached to the witness statement, and we'd submit that by virtue of those questions, and the whole line of questions that the supporting documentation wasn't attached, that all of the diary notes are relevant. Now, what weight is given to them is a question as to how much detail. Now, Mr Wallwork, as he said, became more intimately involved in the industrial relations as the project went on, to the extent that during 2005, there are very extensive diary notes of conversations which are reflective of his statement.

PN946

THE COMMISSIONER: Let me see what you want to do. Do you want to - are you putting to me that you want to put in this document for me to read and say, if you read that, in a generality, you will draw the conclusion that what he's said in his witness statement is justified?

PN947

MS HARTLEY: That it forms the basis, when he said he's had - - -

PN948

THE COMMISSIONER: That it forms the basis of what he said?

PN949

MS HARTLEY: - - - a meeting with Joe McDonald or - - -

PN950

THE COMMISSIONER: And therefore the attack upon the credibility of the statement which has been made by Mr Kucera on the basis that what's in the witness statement is not in the direct knowledge of Mr Wallwork is answerable by this document?

PN951

MS HARTLEY: It is answered by the document in terms of the direct knowledge where the diary shows that Mr Wallwork was present in conversations and what he's actually observed.

PN952

THE COMMISSIONER: Okay. And - - -

PN953

MS HARTLEY: I mean, Mr Wallwork has sworn to the contents of his statement.

PN954

THE COMMISSIONER: Yes.

PN955

MS HARTLEY: The main thrust of Mr Kucera's objections has been that Mr Wallwork hasn't provided the documentation or in some respects that he wasn't able to witness and hear meetings, and for example, in relation to what we spent a bit of time on at the last hearing dates, for Mr Wallwork hearing what was said, Mr Wallwork took notes and those notes are copied in his diary. I mean, it's a question of weight, we'd submit.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN956

THE COMMISSIONER: Yes, yes.

PN957

MS HARTLEY: In and of themselves, they do no more than add to Mr Wallwork's statement. His statement is the sworn testimony. But in terms of trying to suggest, on my reading of it from Mr Kucera's cross-examination, that there is no foundation for Mr Wallwork's statement, we'd submit that these were diary notes taken over the course of the last 14 months.

PN958

THE COMMISSIONER: All right. I'll just give Mr Kucera an opportunity to reply to that, if he wants. Mr Hooker, I don't know whether you're able to take part in this at this stage?

PN959

MR HOOKER: It's not a debate we'd need to have. I don't want to put a submission on this specific issue.

PN960

THE COMMISSIONER: Yes, okay. Thank you for that. Do you want to reply?

PN961

MR KUCERA: No, sir.

PN962

THE COMMISSIONER: Okay. My ruling on the matter is that there's a fundamental attack on the evidence of Mr Wallwork on the basis that it's not - it was not in his direct knowledge that certain things happened. He relies on his diary and the diaries of others for the basis of his information. It cannot fail to be an assistance to the Commission if it knows that the events that are queried by Mr Kucera actually took place and there's an indicator of that in the diary of somebody. My ruling is that I will allow the documents in. As to ultimately what weight I give them will depend upon what I can glean from them by reading them and matching them to the statement of Mr Wallwork.

PN963

I notice that they are not paragraphed in accordance with where they're matched, but they do have dates, I accept they have dates, and I can undertake that process. Now, Ms Hartley, I give you the opportunity to take Mr Wallwork to any parts of it that you feel you ought to at the moment.

PN964

MS HARTLEY: Thank you, Senior Commissioner.

PN965

If I take you, firstly, through - that's in the copies of your diary notes,
Mr Wallwork - - -

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN966

THE COMMISSIONER: I'll mark that as document B, for want of a title.

EXHIBIT #B DOCUMENT - DIARY NOTES

PN967

MS HARTLEY: If I can take you firstly through the diary note on
18 August 2004?

PN968

THE COMMISSIONER: Do you have that, Mr Wallwork?---I'm just finding it, thanks.

PN969

MS HARTLEY: It's in your diary notes, not the daily diaries, 18 August 2004?
---I have the 19th here.

PN970

No, there's a page before that. 2004, not 2005?---Sorry. Yes.

PN971

Can you explain to the Commission who the Richard is, that's referred to?
---Richard Mann.

PN972

What's his role?---He's the project director for the PTA, who are LKJV's client.

PN973

You've made a statement there:

PN974

The CFMEU is acting capriciously.

PN975

What did you mean by that?---In - well, the general industrial actions on the site by the CFMEU, we were trying to work through issues with the union to resolve various matters and we were having strike action conducted that were taking the men off site. There was always the question of how much do we do, what else can we do to ensure that the workforce stay on the site and keep working, and particularly, we've signed a contract to progress the works to our best endeavours and maintaining a stable workforce is one of our obligations. I keep - am actually obliged to keep the PTA informed on a regular basis of things industrial to do with the job, particularly where they can impact on progress, and I was doing that here.

PN976

THE COMMISSIONER: Can you just interpret the last three lines for me? I can read most of it. What does the last line say? It says:

PN977

CFMEU taken all men off site, 12.30 pm.

PN978

And then it's got what looks like,

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN979

Day in lieu?

PN980

And then I don't understand the following words?---Fine, overcast.

PN981

Okay. Thanks?---It's just the weather.

PN982

You see, it looks like "overreacted", that's why I've asked?---Okay.

PN983

Thank you.

PN984

MS HARTLEY: If I take you to the next diary entry, 16 February 2005, and you've got a notation down the bottom?---Yes:

PN985

Men on strike over PTA action in bus lane. Fine, cloudy, cool, humid.

PN986

Thank you, Mr Wallwork. If I take you to the diary note of 29 April 2005?---Yes.

PN987

There was cross-examination in relation to this conversation that you had with Mr McDonald. Is that an accurate record of your conversation?---Yes.

PN988

THE COMMISSIONER: Do you think you can read that paragraph into the transcript, thanks?---Yes:

PN989

Received call from J McD, CFMEU at 7.35 am.

PN990

Just a minute. On the 29th of the 4th? That's where we are, is it?

PN991

MS HARTLEY: Yes, 2005.

PN992

THE COMMISSIONER: And it says, "I replied that"?---Okay:

PN993

I replied that LKJV had no say in what the minister said, nor would we expect to.

PN994

Wait a minute, I'm sorry. Can you start from where you did start? That was on the previous page. "Received call from J McD"?---Yes:

PN995

Received call from J McD, CFMEU at 7.35 am. J McD said men are stirred up over minister's statement in the media. They were being unfairly depicted as responsible for the New Metro Rail City Project delay. J McD asked if he could say that he had raised this with me and that I had taken it onboard and that the LKJV supported the men. I replied that LKJV had no say in what the minister said, nor would we expect to. I also said that LKJV generally supported a positive public image for the project, including safety, quality, workforce, traffic management and community relations. I added that I did not have a ready solution for the men's concerns. J McD said that he would go back to the men and then call me back.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN996

Okay. Thank you.

PN997

MS HARTLEY: If I can take you to your diary note of 6 July 2005?---Yes.

PN998

Can I get you to read your record of your conversation?---Okay:

PN999

Met with TK, CFMEU, 6.45 am as per letter, LKJV/CFMEU. Meeting commenced 7 am. TK left meeting at 7.35 am. He advised me that the men had several comments and he would advise us in writing this week. I asked if the men were coming back to work. He said he did not know, but he thought so. I observed from the site compound that J McD, CFMEU and others were addressing the meeting. At approximately 8.10 am the meeting broke up and the men left the site. I then met with J McD, MP, PB - - -

PN1000

If I can just interrupt you? Who do you mean by MP?---Mick Powell, Peter Ballard - sorry, Mel Peters, Peter Ballard, MT is probably Mike Tuckwell and M Powell:

PN1001

J McD stated that there had been a cover up with respect to the electrical cable incident on Saturday at William Street station. I replied that there was no cover up. J McD advised that the men had walked from site because of this. I replied that there was a procedure to be followed for resolving safety issues and that it was not being followed. J McD responded that it was LKJV who were not following the safety procedure. J McD indicated that the nightshift would be working.

PN1002

Okay. If I can take you to your diary notes from 1 August 2005?---Yes.

PN1003

If I can just get you to read the first paragraph of that and then the third paragraph?---Yes:

PN1004

RM, PTA, advised Richard that no men had attended for work. LKJV were regarding this as industrial action and will proceed accordingly.

PN1005

A meeting, EH from Freehills, Doug Bevan, Steve Baker, Tony Carriss - - -

PN1006

THE COMMISSIONER: Are you waiving privilege on this?

PN1007

MS HARTLEY: No. I hadn't realised that was who the notes were for. I won't waive privilege because - - -

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1008

THE COMMISSIONER: Okay. You can't read it, then.

PN1009

MS HARTLEY: I take you through to another diary note on the 1st of the 8th which - - -

PN1010

THE COMMISSIONER: Mr Kucera, I'll regard that paragraph as not being there.

PN1011

MR KUCERA: Yes, I understand.

PN1012

THE COMMISSIONER: Yes. Go on, Ms Hartley.

PN1013

MS HARTLEY: The next page is also the 1st of the 8th. Can I get you to read that into the transcript, Mr Wallwork?---Yes:

PN1014

Left site at 7 pm. Nightshift excavating at William Street station, first night. Met Tony C and Jason L at Esplanade.

PN1015

Can you just for the record say their full names?---Tony Carriss and Jason Leech, at Esplanade:

PN1016

Tony Carriss advised me that P Ballard had insisted that the tower crane not work because the wind was too strong. Also, the Franis style crane was not allowed to work because it was an emergency crane only according to PB. This restricted the night's activities. I noted that the flag at the top of the tower crane was flapping against the flagpole. TC also stated that the dewatering crew out of hours were regarded as an emergency crew and were not allowed to do any work, according to PB. Jason Leech remarked that this resulted in the leak in the sheet pile wall where the clutch had separated on driving not being attended to. This was in fact an issue that should have been dealt with immediately.

PN1017

Thank you. If I can take you to the diary note of 6 September 2005?---Yes.

PN1018

Have you got that one?---Yes.

PN1019

Can I get you to read into the transcript your notes on that page?---

PN1020

DB LCPL. Advised by DB, Doug Bevan, that minimal work, eight hours Wednesday to Friday this week only. Apparently men are being fatigued, being pushed too hard according to JMcD. Doug Bevan met with Peter Ballard at 12 noon. No mention of this. Dispute process not followed.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1021

If I can take you to the next page, which is also the 6th of the ninth, can I get you to read the second paragraph there?---

PN1022

Discussion with Colin Feltman at 6.20 pm. TBM welding crew - - -

PN1023

Can I get you to explain what you mean by TBM?---Tunnel boring machine:

PN1024

Tunnel boring machine welding crew are working eight hours night shift only. Colin Feltman had said to them to check with their union, CEPU. He made the point that the six welders were likely to risk working 12 hours at a site where 250 other workers were working only eight. He would not push them into this.

PN1025

Thank you. Can I take you to 13 October 2005?---Yes.

PN1026

JMcD, CFMEU on site. No notice given. Met with JMcD, Mick Buchan, Mal Peters along with Paul Farris, LKJV. JMcD raised several issues. (1) Timing of meeting with men over new BA. I agreed that 9 am for one hour tomorrow was approved. (2) Commissioning of TMB. Crew did not appear to be aware of commissioning procedures. DT advised that the men had talked - he had talked to - were not aware of the procedures.

PN1027

Can I take you over the page which is also 13 October?---

PN1028

Spoke to JMcD and advised him of points listed with Henry Amazaki previous page. JMcD acknowledged this. He commented that DT was right in his statements this morning. I replied that Henry Amazaki's team had these initiatives underway but that the query was timely in any event.

PN1029

If I can get you to keep reading?---

PN1030

JMcD called to query why J. Drummond was planning a concrete pour tomorrow during the meeting. Paul Farris advised me that he needed six men to carry out the pour tomorrow. I called JMcD tomorrow and asked if six men could meet on the EBA the following day. JMcD said no, he wanted them all at the meeting. I replied that I was not happy with this and that it committed us to a hard road. I stated to JMcD that he knew we had time issues. He said he had discussed it with K. Reynolds and he would ask the men not to work.

PN1031

Thank you. I take you to the next page which is 14 October 2005. Can I get you to read your diary notes into the transcript?---

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1032

Men commenced leaving work at 8.45 am to proceed to meeting. Meeting commenced 9.04, addressed by M. Buchan, JMcD, TK and DK. All work force attended. M. Buchan called men into circle around podium on Esplanade. JMcD commenced meeting. Could not hear what he was saying. After some minutes he introduced TK to go through the agreement. TK did this until approximately 9.40. DK then addressed the meeting over last night's night shift. By the sound of it he discussed safety issues. JMcD then addressed the meeting. He discussed Colin Hamilton and Bill Turner. The union officials were talking with a loud hailer, but he clarity of what they were saying was intermittent. The meeting extended until 10.30 am. There was a vote taken over no confidence and Colin Hamilton. There was a vote taken over no overtime next week. JMcD appeared to orchestrate this. The men voted by show of hands to work no overtime. JMcD, TK, MB and DK then came to meet Doug Bevan and I. JMcD started by saying the men had concerns about the hours they were working. Some had worked 13 days straight. He - - -

PN1033

If I can stop you there because the next sentence does refer to the negotiations and that is without prejudice. If I can take you through to - - -

PN1034

MR HOOKER: Just hang on, wait a second. Last time we were here - - -

PN1035

MS HARTLEY: The contents - - -

PN1036

MR HOOKER: No, hang on, the last time we were here - - -

PN1037

THE COMMISSIONER: Just let him put his suggestion.

PN1038

MR HOOKER: It's an important point. Last time we were here Mr Wallwork's evidence was that he - if it was without prejudice discussions, he'd preface it by saying it was without prejudice first. So our position is that there's no indication from his notes that he prefaced it with without prejudice, so our position is these notes should go in.

PN1039

MS HARTLEY: That's fine by us, Commissioner.

PN1040

THE COMMISSIONER: Yes, you can read it. You can read it, Mr Wallwork?
---Okay.

PN1041

TK stated that the men had one issue which was over clause 19.1 having the phrase 'including but not limited to'. What did this mean with respect to continuous works?

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1042

MS HARTLEY: Can you go on to the next page which is still 14 October?
---Yes.

PN1043

He felt that Colin Hamilton was not receptive to his input. I replied that I would query this with Colin Hamilton and get back to JMcD. JMcD mentioned that the men had expressed no confidence in Colin Hamilton. I stated that I was puzzled by this. I felt that Colin Hamilton had been very diligent about safety and had always acted in the best interests in the safety of the work force. I felt that he had done this without fear or favour. I had not heard any feedback from the men or safety committee on issues with Colin Hamilton. After this meeting Henry Amazaki queried the tunnelling hours. His crew were saying that they would not work over the weekend, ie Saturday. I repeatedly called JMcD but could not contact him. 11 am to 12 noon. At approximately 12.30 pm JMcD called me and I stated our understanding that the tunnelling was not going to be affected. JMcD contested this saying only the 12 hour roster would proceed, ie not Saturday. I stated that this was a safety issue. JMcD said he would call MB and ask him to go to the site and see Frank Hannigan. I accepted this. I advised Henry Amazaki of above. Frank Hannigan repeatedly tried to get MB on the phone to no avail. MB finally rang Doug Bevan at 3 pm saying he would see Frank Hannigan now.

PN1044

Thank you, Mr Wallwork. I take you to 20 October 2005. If I can get you to read those notes into the transcript?---

PN1045

Meeting IR, Mick Buchan, Doug Heath, Darren Cavanaugh, Tim Kucera, Peter Ballard, Frank Hannigan, Barry Perry, Doug Bevan, myself, LKJV. Weekend work, tunnelling and rail yard. Agreement from last Friday. I stated to the meeting that the agreement from last Friday had not been held. LKJV had put the consultative process in place but the men were still working eight hours of the day. Discussion ensued but came down to the CFMEU reps in the meeting not being able to meet JMcD's undertakings. I advised that LKJV needed to work in the rail yard this week and in order to achieve the shutdown in November for the Perth-Fremantle lines. I stressed that this was crucial to minimise disruption to the public and any impact on PTAs operations. Mick Buchan replied that rail work was okay to proceed. I noted that the civil work was also necessary. Mick Buchan and Peter Ballard agreed to meet with Jason Flowerdew, LKJV, to resolve. Mick Buchan noted some issues with Alstom over insurances and pay rates. Peter Ballard will assist to resolve. I stated that the tunnelling was likely to start Saturday or Monday. I noted that the men would have worked a long roster by Thursday next week if we did not break in between. I proposed 10 hours Saturday and no work Sunday with a Monday start, that is, on the RDO. Peter Ballard and Darren Cavanaugh agreed to take this to the men. I pointed out that the revised structural agreement had staggered RDOs. JMcD called at 2.30 pm. He relayed to me some of the discussion from my earlier meeting with the CFMEU reps. I stated that he had not kept up his end of the agreement from last Friday. LKJV had kept theirs. LKJV had lost more time this week because of the shortened week, eight hours per day, as well as last Saturday. JMcD argued that other issues had yet to be resolved. I stated that there were no other issues included in last Friday's agreement. JMcD advised that the time would still be made up. He stated he would see me next week on Tuesday.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1046

If you could just read that, "Last night"?---

PN1047

Richard Mann, PTA, I related outcome of meeting with CFMEU and call with JMcD to Richard Mann.

PN1048

If I can take you to 28 October?---

PN1049

Arrived on site at 6.15 am. Had brief discussion with JMcD, CFMEU. Noted that Mick Buchan and Doug Heath, CFMEU were also on site. Men began waling over to Esplanade near City of Perth podium at 6.25 am. Meeting commenced at 6.40 am. The podium was the point from which the men were addressed. JMcD, MB, DH and PB were on it plus two others I did not recognise, one old, one young. McD commenced the meeting. I could hear snatches of the conversation as JMcD was speaking via a loud hailer. He stated that LKJV were still pursuing an S127 to be heard on the 16th of the 11th, despite no IR disruption for some months. He implied that the S127 was on the mend. He noted that the 15th of the 11th '05 was to be a general stoppage. Some further discussion ensued and there were several questions from the floor. A show of hands followed. Following JMcD the unknown older person spoke briefly. Following that, the younger unknown person spoke for some time. JMcD then returned to the microphone and spoke for some additional time. The meeting concluded at approximately 7.15 am. JMcD, MB and PB and DH then came to speak to me in the site compound. JMcD advised me that the men had not accepted the revised structural agreement. They had several issues. Having to work Saturdays the RDO PDO calendar, inclement weather and some general comment about Tim Kucera's paragraphs that LKJV had not accepted. JMcD asked to meet on Monday with Doug Bevan and I. I agreed to this. JMcD to advise me of the time. MB commented that the men were concerned about the BIT. I replied that LKJV had no say in the BITs actions. MB stated that the BIT were visiting men 5 to 6 at their homes. JMcD stated that B. Turner was not consulting with the men. I replied that he was and that it was JMcD who had not held his part of the agreement made Friday week ago. JMcD stated that LKJV would make the time up before Christmas. PB raised the issue of night shift IR representation. I replied that we would deal with that on Monday. At this point JMcD, PB and DH left the conversation. I stated to MB that from Tuesday, the 1st of the 11th '05 onwards the LKJV would strictly adhere to the Code of Practice including right of entry provisions and if they were not adhered to, the LKJV would take action available to it legally. I noted that LKJV had no choice mere. MB acknowledged what I said.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1050

Can I take you to the next diary entry, the 2nd of the 11th, if you can read that into the transcript?---

PN1051

JMcD attempted to enter site at Esplanade gate without notice, 6 am. Colin Hamilton was on the gate and called me stating that JMcD wanted to speak to a subbie who did not have an EBA. I advised Colin Hamilton that that was not grounds for right of entry and to refuse entry to JMcD.

PN1052

If I can get you to go to the next page which is still 2 November?---

PN1053

Call from J. McDonald on mobile querying if I knew that the Code of Practice was not law. He repeated this several times. I advised that I understood the nature of the Code of Practice. Mid morning.

PN1054

If I can get you to read the bottom two paragraphs of that page into the transcript?---

PN1055

Kevin Reynolds, CFMEU. Entry denied this morning. Why? I cited 49(h), 49(i) of IRA 1979. KR stated they would go to the IRC. K. Reynolds, CFMEU, cited 49(h) and said subcontractor had EBA which had no notice provisions and therefore JMcD had entitlement. I stated that he had to inform the occupier.

PN1056

Can I take you to 3 November to read that diary note into the transcript?---

PN1057

JMcD arrived on site at 9 am. I asked him to leave the site as the CFMEU had not complied with the ROE provisions. I repeated this several times. He asked to make a phone call to his lawyer. I repeated that he had to leave. He completed the call and asked to talk to Peter Ballard for two minutes. I did not reply. This discussion took place outside the kitchen. JMcD talked to Peter Ballard briefly and then walked to the front gate with Peter Ballard. At 9.15 am the men at Esplanade Station and Foreshore, again walking toward the front gate. They assembled and JMcD addressed them. At approximately 9.40 JMcD rang me and asked to talk. He and Peter Ballard and PF, and self" - that's Paul Farris - "met at Esplanade podium. JMcD said the men do not want to be fined $20,000. He said he wanted to talk to the steel fixers. I replied if he gave us appropriate notice he could talk to them. He asked if the CFMEU could walk around site. I replied no, they had to be escorted. JMcD asked if LKJV had to be given the names of the men that the CFMEU wanted to talk to. I replied that we needed the names if the men were to be talked to during working hours because we had to call them out of the work teams in a controlled manner if the meeting was not during meal breaks. If the meeting was not during meal breaks, then we did not need the names. I said that we did not want the men to leave the job but noted that they were outside the security post and the cook had stopped cooking. JMcD then walked off with Peter Ballard towards the compound. JMcD asked me if he could walk through the compound to save distance. I agreed to this. After he returned to the security post he and Peter Ballard and the men walked to the podium at the Esplanade. They were joined by work force from William Street station and Row Street. JMcD addressed the meeting from 10 am. This extended to 10.40 am. The meeting broke up and the men left site. JMcD then informed me and Paul Farris that the men were leaving site and would return on Monday. JMcD and PB did not give the reason for the men leaving other than to say they were pissed off.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1058

If I take you to 7 November?---Yes:

PN1059

JMcD on site at 9 am. Met with Total Reo men in large meeting room to
9.30 am. JMcD asked if he could attend site meeting. I said it was a private meeting between LKJV and its work force and he could not attend.

PN1060

MR HOOKER: What date, Commissioner?

PN1061

MS HARTLEY: That's on the 7th.

PN1062

MR HOOKER: 7th of the 11th, thank you.

PN1063

MS HARTLEY: Thank you?---

**** ROBERT JOHN WALLWORK XN MS HARTLEY
PN1064

JMcD said he was going to take a piss and leave site. I said okay. Addressed men at Area 3 at 10 am. LKJV and subcontractors. I thanked the men for attending. I stated who I was. I stated that the purpose of the meeting was to clarify the events of the past few days and addressed some apparent misunderstandings. I described the complex nature of the project, particularly the tunnelling and the need for LKJV knowing who was on site and what they were doing and when. I pointed out that the tunnelling had a high risk profile and needed to be carried out in an orderly manner without unscheduled interruptions. I noted that interruptions could call a Lane Cove style problem, particularly if these occurred under the buildings along William Street. Site safety rules had to be followed. The structural agreement and State and Federal Acts had right of entry provisions that were intended to allow occupiers/employers to know what was going on on their sites. I stated that the events last week arose because the CFMEU did not give LKJV right of entry notice according to the provisions of the State and Federal Acts. I had asked JMcD personally to leave site because of this. I emphasised that LKJV could not have any of its work force pulled out from underneath it. This could create a hazardous situation. All right of entry provisions had to be met including informing LKJV of who was going to be having meetings during working hours, so that the crews could be adjusted to ensure that unsafe situations did not arise. I recounted the advice from the CFMEU officials that you, the work force, had been advised by the officials to return to work and that there was a possibility of fines and that you, the men, had decided to go out. This left LKJV with no alternative but to pursue an S127 order which was delivered by notice servers. This was a requirement of the order that they be conveyed to each employee in full. At this point one of the men raised the issue of notice servers being rude to wives and children. I replied that I would deal with this if Peter Ballard gave me the details. I noted that such behaviour was not appropriate. I stressed that it was not LKJVs intention to target the work force or to piss them off by inflaming the situation. What LKJV want is a stable work force. If there are gripes or grievances then we would deal with them via the dispute resolution process. This process could solve 99 per cent of all matters. I noted that it was great to see the men return to work today. I asked that they please stay and assist in finishing the project. M. Peters asked what would happen on the National Strike Day, the 15th of the 11th '05 with respect to the S127. I said I did not know but I reiterated that the tunnel must not have an unscheduled stop. P. Ballard stated that JMcD requested that he attend but was denied access to this meeting. I replied that it was a private meeting between LKJV and its employees and its subcontractors. I noted though that LKJV had nothing to hide and gave as an example that Peter Ballard was in attendance. Peter Ballard asked what the Commissioner had said in the State IRC hearing on Thursday. I replied that the Commissioner gave the opinion, not a ruling, that the CFMEUs opinion that they had the right to enter a site without notice to the occupier to see a subcontractor with a State EBA was valid. I reiterated that (1) the site needed a stable work force, (2) right of entry provisions had to be complied with to ensure a safe working environment, (3) LKJV were not trying to lock out the CFMEU, (4) the dispute resolution process should be followed, (5) the project was a significant one and people could justifiably be proud of their efforts to date. I thanked the men for their attendance and asked that they contact Paul Farris if they had any queries from LKJV on these matters. Repeated above at William Street station at 12.30 pm and at Row Street at 1.30 pm. Men listened quietly. I included questions from foreshore at these two addresses. Peter Ballard attended both and asked for details of behaviour of notice servers.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1065

Thank you, Mr Wallwork. In relation to the industrial action that occurred on 3, 4 and 5 November, there was a section 127 application made at that time and that's what's referred to in your meeting with the employees. I seek to tender the transcript and the order. I've got copies for everyone and it will be that the CFMEU is a party. Do you have a copy?

EXHIBIT #C ORDERS ON RECORD PR964638 AND TRANSCRIPT

PN1066

MS HARTLEY: Thank you, Commissioner.

PN1067

In relation to your diary and in relation to your witness statement, your witness statement makes reference to industrial action in November last year?---Yes.

PN1068

Were there section 127 applications and orders made in relation to that period of industrial action?---Yes.

PN1069

The three 127 orders made in November and December last year, we'll start with orders. I tender the three orders, they are dated 12 November 2004, 22 November 2004 and 1 December 2004.

PN1070

THE COMMISSIONER: Again, these are documents which I'm required to have official notice of, so they're not exhibits.

PN1071

MS HARTLEY: There's also transcript from those proceedings from 19 November - or 12 November and 19 November. If I could have those marked.

EXHIBIT #D TRANSCRIPT DATED 12/11/2005

EXHIBIT #E TRANSCRIPT OF PROCEEDINGS BEFORE DEPUTY PRESIDENT MCCARTHY

---

PN1072

MS HARTLEY: Thank you, Commissioner.

PN1073

There is another bound bundle of documents that you have in front of you which are the copies of the daily dairy notes. Can you explain to the Commission what the daily diaries are?---These daily diaries are kept by the key supervisory staff on site. They're actually obliged to keep diaries to account for what they did during the day.

PN1074

I seek to tender that bundle, Commissioner.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1075

THE COMMISSIONER: Have you got anything to say, Mr Kucera?

PN1076

MR KUCERA: Other than to say I'm in a position in relation to the - the objection we made in relation to the - - -

PN1077

THE COMMISSIONER: Yes, still stands?

PN1078

MR KUCERA: Yes, same objection. I don't - - -

PN1079

THE COMMISSIONER: Yes. And my ruling is the same and I'll mark the daily diaries, exhibit F.

EXHIBIT #F DAILY DIARIES

PN1080

THE COMMISSIONER: In those circumstances I don't think you need to go through them, unless there's a couple of - - -

PN1081

MS HARTLEY: I think there's only one point that I wanted to - - -

PN1082

So these daily diaries are filled in every day, Mr Wallwork?---Yes.

PN1083

If I can take you to the daily diary note of Mr Jeff Rigby on 29 July 2005?---Yes.

PN1084

If I can get you to read the third paragraph there into the transcript?

PN1085

THE COMMISSIONER: The 29th are we looking at?

PN1086

MS HARTLEY: 29 July 2005, of the supervisor, Mr Jeff Rigby.

PN1087

THE COMMISSIONER: Thanks.

PN1088

THE WITNESS: "Union meeting, half hour, 1.30 to 2."

PN1089

MS HARTLEY: If you could just wait. Mr Kucera's - - -

PN1090

MR KUCERA: Yes. Just - whereabouts is the - - -

PN1091

MS HARTLEY: It's 29 July 2005. If you can just read that again, sorry for interrupting you, Mr Wallwork? If you can read that now, Mr Wallwork?---

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1092

Union meeting half hour, 1.30 to 2. While having lunch Jim Holt implied that union meeting was about calling a blue flu day on Monday, the 1st of the 8th '05. Work force implicated that a blue flu could happen Monday, the 1st of the 8th '05.

PN1093

Thank you. During the week, Commissioner, a fax was received from the CFMEU which set out the paragraphs in Mr Wallwork's statement that they were intending to object to as being hearsay and a critical issue. Have you got a copy of that fax?

PN1094

THE COMMISSIONER: Yes, I have.

PN1095

MS HARTLEY: I've addressed a number of those issues through the transcript and orders, daily diary notes and Mr Wallwork's statement. What I was intending to do now was simply go through a couple of other paragraphs which aren't dealt with by those diary notes in terms of dealing with the hearsay issue. If the Commission - - -

PN1096

THE COMMISSIONER: As long as it arises out of the re-examination, otherwise it's a matter for submission.

PN1097

MS HARTLEY: Fair enough. It's relating to, in particular, the issue of - I'll leave it for submissions then, Commissioner.

PN1098

THE COMMISSIONER: Okay.

PN1099

MS HARTLEY: It's been 13 days since the last hearing. The last thing that I want to do is add to this, but I think it is important for one issue to be raised as new evidence. It will be very brief, but it relates to an ongoing dispute which LKJV would submit is relevant in terms of showing that there is not happiness and light in all quarters in relation to the project.

PN1100

THE COMMISSIONER: Well, let's hear it, and Mr Kucera, if he needs time to answer, I'll give him time to answer.

PN1101

MS HARTLEY: Thank you.

PN1102

Mr Wallwork, has there been any ongoing issues over the last week with the CFMEU?---There have been right of entry applications made and granted.

**** ROBERT JOHN WALLWORK RXN MS HARTLEY
PN1103

Has that resolved the underlying dispute or not?---Well, we're not aware of - in the cases of the visits to site, the right of entry, we're not aware of disputes that are on foot. There are existing issues to be worked through, but I'm not aware of any - I'm aware of only one issue that's been conveyed to me this week, or the last week by Mr McDonald that requires following up by LKJV.

PN1104

Thank you, Mr Wallwork. No further questions.

PN1105

THE COMMISSIONER: You might want to cross-examine on that, will you, or do you?

PN1106

MR KUCERA: No, Commissioner.

PN1107

THE COMMISSIONER: Okay. Thanks, Mr Wallwork. Is there anything arising?

PN1108

MR KUCERA: There are matters here which deal with Mr Wallwork's diaries.

PN1109

THE COMMISSIONER: Ms Hartley, have you got any problems with Mr Kucera - I mean, you were re-examining your witness after he had cross-examined?

PN1110

MS HARTLEY: Not at all if it's on those daily diaries, or diary entries.

PN1111

THE COMMISSIONER: All right.

<FURTHER CROSS-EXAMINATION BY MR KUCERA [11.49AM]

PN1112

MR KUCERA: Have you got your little book there? If you can go to the 14th of the 10th, 2005?

PN1113

THE COMMISSIONER: This is in exhibit B, is it?

PN1114

MR KUCERA: Yes, it is, Commissioner.

PN1115

THE COMMISSIONER: And the 14th of?

PN1116

MR KUCERA: October. Now, last time you gave evidence, Mr Wallwork, you said in paragraph 179 of your witness statement, do you want to go back to your witness statement and you'll know precisely what I'm talking about, paragraph 179?---Yes.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1117

You said in your statement that:

PN1118

McDonald notified LKJV that there would be effective from that day a ban on overtime and that this ban would last until Friday, 29 October.

PN1119

Now, when we were here last time I asked you some questions about your notes and I asked you if you took notes and you said yes, do you agree with me?---As is in front of me, absolutely.

PN1120

So these are the notes of that meeting that you're referring to in paragraph 179, is that right?---Yes.

PN1121

All right. Now, I asked you a question and I said - and your notes will say that McDonald used those exact words:

PN1122

Effective from that date, there'll be a ban on overtime and the ban would last until Friday, 21 October.

PN1123

And you said:

PN1124

My notes will fairly accurately convey what was said.

PN1125

And I asked you:

PN1126

Are you confident that they say ban.

PN1127

And you then said:

PN1128

I'm confident that he used that term.

PN1129

Where in these notes from 14/10 does it say Mr McDonald used the word ban?
---There's no reference in her to McDonald saying that.

PN1130

So your notes don't say that, do they?---No.

PN1131

Right, so are you still confident then?---He used the term ban on overtime.

PN1132

But it's not in your notes, is it?---No.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1133

And your notes are different to what appears in your statement?---I think the notes substantially back up that it was in the statement. I don't think they're different.

PN1134

Well, where's ban in your notes, Mr Wallwork? It's not there, is it?---He used the term.

PN1135

Well, if he used the term, it would have been in your notes, wouldn't it?---Well, these notes are a record of the nature of the conversation. It's hard to get records down verbatim.

PN1136

And I asked you if you were confident as to whether or not those notes said ban and you said to me I'm confident that he used that term. It's not in your notes, is it?---I'm confident that he used the term.

PN1137

So confident, in fact, you didn't write it down?---Well, unfortunately I can't write everything down that's said.

PN1138

Now, you say that the procedures regarding the live cable - can I just take you to your statement in relation to the live cable incident? You say that the procedures were followed or adhered to by the company, is that right?---Yes.

PN1139

Now, is there a document here that you say supports what you're saying?---The safety incident report details the full order of events.

PN1140

And is that here, the safety incident report?---I don't have it with me.

PN1141

Tell me, what happens when you have a major safety incident? What are the steps under your procedures?---Well, the structural agreement has a clause 6.1 that sets out the process by which a safety issue is resolved. Depending on who finds it, the first thing is to advise the supervisor and assuming it's one of the workforce who's found it, the supervisor - the first action is where it can be fixed on the spot to actually do that, depending on the nature of the event. If it cannot be fixed on the spot, help needs to be called. The immediate supervisor needs to be informed. He needs to tell his area manager and inform our safety manager and the safety manager is advised to inform me, if I haven't already been informed.

PN1142

Now, from the employees' perspective, I suppose, you have workers on your project, is there a step whereby they're informed?---We've got a number of mechanisms. Obviously the people in the immediate area are informed by the supervisor, particularly if there's a risk of life or limb. All safety incidents are tabled and reviewed at our safety committee meetings. It really depends on the nature and how widespread a particular event is communicated immediately depends on what it is.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1143

But if you have a major incident, you've spoken about you tell the area manager and the safety manager?---Yes.

PN1144

Is it part of your process also to tell health and safety reps what's going on?
---Everybody involved in safety for that particular area is advised of what the circumstances are.

PN1145

Yes, but does that include the safety rep?---It would include the safety rep for that area.

PN1146

Now, if I can show you this. I haven't got an extra one, but I'm happy for my friend to have a look.

PN1147

MS HARTLEY: Is this for me?

PN1148

MR KUCERA: Well, I haven't got an extra one, but I'll make sure you get one.

PN1149

MS HARTLEY: Well, we're in exactly the same position as the CFMEU. We have no notice as to what this is. I would have thought they would have been able to make enough copies for everybody. Let's just hear the questions first.

PN1150

MR KUCERA: I appreciate the position that she's in. It's an oversight, not a deliberate attempt to - - -

PN1151

THE COMMISSIONER: Well, we're not going to go on cross-examining, re-examining and cross-examining ad nauseam. I'll tell you that right now. This is an unusual opportunity you've got and I'm only allowing it to happen because
Ms Hartley consents, so I would like you to stick to issues that are arising out of the new information, if we can call it that, that she's put in and I don't know what this document is, but it must relate to that or I wouldn't be very happy about it coming in.

PN1152

MR KUCERA: Senior Commissioner, I can point to where it is. The issue we were dealing with was a diary note dated 6 July 2005. Perhaps we should go to that and that will assist you.

PN1153

THE COMMISSIONER: Yes, I've got that.

PN1154

MR KUCERA: There's comments from Mr Wallwork in relation to procedures being followed and I guess what I'm doing is asking him just a few further questions about the comments that he's made in his diary.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1155

MS HARTLEY: Well, with respect, paragraph 125 of the original witness statement deals with this issue. This should have been raised in cross-examination, with respect, Senior Commissioner, and put to Mr Wallwork at that time. There's nothing new raised in the diary entry.

PN1156

THE COMMISSIONER: Okay, what have you got to say?

PN1157

MR KUCERA: Well, except that the diary entry is now being relied upon in some sort of argument that the procedures were followed.

PN1158

THE COMMISSIONER: No, the diary note as I understand it is being relied on to support the contention that's set out in 125 and that's all.

PN1159

MS HARTLEY: That's all.

PN1160

THE COMMISSIONER: That's all. He says in 125 that's what I think happened, you challenge that, Ms Hartley has brought along a diary note which says that happened. I'll draw my conclusions later about what weight I'll give that and an inquiry into who was right or wrong about the procedure is not a matter for me today. We're testing here the probity and veracity of the original witness statement and that's all we're doing.

PN1161

MR KUCERA: I would like to say the position is we're not going on with this particular document, then, Senior Commissioner?

PN1162

THE COMMISSIONER: Okay, thank you.

PN1163

MR KUCERA: No, I am asking the question.

PN1164

THE COMMISSIONER: You haven't put it in yet.

PN1165

MR KUCERA: Well, I haven't, but there's been as I understood it objection, so I'm just trying to work out whether there's been a ruling.

PN1166

THE COMMISSIONER: I'm not going to rule on it until I see it. That would be pretty silly and now that I've got it, why do we need to have it in? How does it contribute to the state of knowledge of the Commission?

PN1167

MR KUCERA: Well, what Mr Wallwork says in his statement is that the procedures were followed and he's just given further evidence about the steps and the procedures and who has to be notified in areas and my note says that he says that everyone that's involved in safety in that area, including the safety rep in that area has to be advised when there's a major incident, so that's his evidence and what I now want to do is show him the investigation report that shows they didn't actually - well, show him the report first and then it will become apparent why I've asked the question.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1168

THE COMMISSIONER: All right, well, you can give it to him. I don't know what weight it will get until I've heard his answers.

PN1169

MR KUCERA: Now, do you recognise this document, Mr Wallwork?---This is our standard reporting, incident reporting form.

PN1170

And have you seen this particular document before?---I've certainly seen the incident report relating to this event. This document isn't signed, so I can't comment at a glance on the status of it.

PN1171

So in other words, you've got to have a final signed copy before you're able to comment on it, is that right?---Well, I'm not sure what you're asking me here. You're asking me if I recognise this document. Well, it's certainly our standard pro forma. I cannot tell you whether it's the final damage report relating to this event.

PN1172

Perhaps if the witness can return the document. Just before I finally depart from that, what is a potential class 1 damage report, Mr Wallwork? Is that a serious incident?---A potential class 1 is a circumstance that has arisen that could have resulted in permanent damage to an employee and it's called a potential as opposed to an actual class 1 event, to highlight that it was of a serious nature.

PN1173

So it's a near miss serious accident, is that right?---It may be a near miss. It doesn't have to be a near miss to be a potential class 1.

PN1174

Now, if I can just take you to 29 April, your diary notes.

PN1175

THE COMMISSIONER: 2005?

PN1176

MR KUCERA: Yes, Commissioner.

PN1177

Now, what you've done in here, Mr Wallwork, is relay your recollection of the events, your discussion with Mr McDonald regarding - the telephone call regarding delays on the project?---Yes.

PN1178

Can you perhaps, Mr Wallwork, give a brief description of some of the other delays that you've had on the project for various reasons?---The industrial action in November, there were several of these incidences before November and then there's a record this year of industrial action that caused delay.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1179

All right, but what about things like you had a major scaffold collapse in August, didn't you, August 2004?---In August 2004 a scaffold moved against the Myer building, the old Myer building in William Street. The scaffold didn't actually collapse. The scaffold caught a piece of the building that had come away from its connection to the flooring of the Myer building, so it wasn't the scaffold that collapsed. The scaffold caught a piece of demolition rubble.

PN1180

And, what, would have taken say around a day to rectify in your estimation?
---Yes. I can't recall exactly. It would have been a day, I would say.

PN1181

Then in September 2004, the 15th, there was a fire at the William Street station?
---There was a fire in the basement of the old Myer building.

PN1182

Right, and that caused some problems to the extent that it would have been say two to three days to rectify that?

PN1183

THE COMMISSIONER: Yes, Ms Hartley.

PN1184

MS HARTLEY: Can I just put on the record, it appears that Mr Kucera is running his case in cross-examination now. None of this is issues that are raised by the daily diary notes. This is issues that go to the heart of the CFMEUs case in terms of trying to bring some argument about delays for other reasons. It should have been raised when he had Mr Wallwork under cross-examination. I object to it on the basis that if he raises new evidence now, then I'll need to re-examine to clarify the scope of what delay has been caused by all these new incidences that haven't been referred to in the daily diary notes and haven't been referred to in Mr Wallwork's diary.

PN1185

THE COMMISSIONER: Do you want to say something, Mr Kucera?

PN1186

MR KUCERA: No, Senior Commissioner. We were presented with a diary in relation to Mr Wallwork's recollection of delay causing events and the only delay causing events that appear to have been included here are the - - -

PN1187

THE COMMISSIONER: Well, I've already ruled about what I think you can do in this part of the process and it's not what you're doing now. You had an opportunity to cross-examine. You opted to take it on a particular course and you have to live with that. You will no doubt have the opportunity to call whatever rebuttal evidence you want about these statements and I'll weigh the statements, the competing statements as I'm required to do under the Act in applying the - giving the evidence a proper balance in accordance with the standards that are required under the Workplace Relations Act.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1188

So what you're doing now in my view is limited to testing whether what appears in the notes appears in the statement. That is all. Otherwise, as Ms Hartley said and I've already said it earlier, I'm not going to have this go on and on and on. One gets a chance to cross-examine and there's a re-examination and that's it and this is a privilege and I'm not going to let it extend into another cross-examination, so you have a think about how you'd like to conduct the rest of it.

PN1189

MR KUCERA: Mr Wallwork, if I can just take you back to your diary notes, 18/8/2004. That's referred to in - whereabouts in your witness statement is that referred to, Mr Wallwork?---Which particular part are you referring to?

PN1190

On that note you said that - it's paragraph 23 as I understand it, am I right?
---Yes.

PN1191

And you say in your statement:

PN1192

On 18 August 2005 -

PN1193

And there's a description of what happens in your witness statement, your diary note says the CFMEU is acting capriciously?---Yes.

PN1194

Now, that doesn't appear in your witness statement, does it?---No.

PN1195

And, indeed, that's your view about the CFMEU and its officials on this project, isn't it?---This is a record of what I said to Richard Mann on that date.

PN1196

But, indeed, that's what your view is more generally, isn't it?---I'd say my view is more detailed than that.

PN1197

So do you think they're acting capriciously or not?---My view is that the CFMEU have consistently betrayed the rust of LKJV in not upholding the agreement that it signed back in 2004 and that opinion is based on - - -

PN1198

But that's your personal - - -?---- - - repeated actions.

PN1199

That's your personal view of the situation, isn't it?---Absolutely.

PN1200

Now, you talked about an incident on 1 August 2005 in your notes, if I could just take you there briefly.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1201

THE COMMISSIONER: 1 August?

PN1202

MR KUCERA: Yes, 1/8/05.

PN1203

In your notes you say:

PN1204

Also the Franis style crane was not allowed to work because it was an emergency crane only according to PB.

PN1205

?---Yes.

PN1206

Can you explain, Mr Wallwork, the emergency crane, where was that? Was that for the launch box?---It was generally for the foreshore site, including the launch box.

PN1207

And is it the case that the emergency crane would have been needed to get someone out of the launch box in the event of a serious injury?---Well, at this point there was a tower crane and a Franis style crane.

PN1208

Yes, your notes say that on 1/8 the tower crane was not working. I just want you to clarify what you mean from your diary note by an emergency crane. Is that what it's there for?---Well, the crane was on standby in case one of the other cranes broke down and for any reason.

PN1209

And if you were using it on standby for emergency purposes, it would need to be in the area immediately adjacent to the launch box, is that right?---Well, having a crane on site - Franis cranes are mobile. They can be driven down to any point on the site within minutes, so they can be made available.

PN1210

The crane could be used what, at any end of the site, from the launch box all the way down to the foreshore, is that right, and by the foreshore, I mean all the way down towards the freeway, past the convention centre?---Well, if we were working there, but we weren't. See, we're only - - -

PN1211

So the only area where the crane was supposed to be was on the area where the launch box was, is that right?---Well, we're talking about at night. We don't work all over the site at night. We only work in select areas.

PN1212

Now, Mr Wallwork, there was a transcript that was put in as an exhibit just then and it was in relation to a hearing before Commissioner McCarthy on 2 and
3 November. Actually, I won't press that, Senior Commissioner. Now,
Mr Wallwork, you gave some evidence just then about your dispute that you've been having in relation to rights of entry, is that right?---Yes.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1213

Right, and it's been before the West Australian Industrial Relations Commission, hasn't it?---Yes.

PN1214

And in your notes you say that Commissioner Kenna has given an opinion if you like on the status of the law, is that right?---Yes, in the statements I gave to the crews on site, I made that point.

PN1215

Now, if Commissioner Kenna was to issue a recommendation giving some effect to that opinion, what would LKJVs position be in relation to that?

PN1216

MS HARTLEY: Well, Mr Kucera has objected to opinion evidence. This has got to be crystal ball gazing, given we don't know what type of recommendations he's talking about.

PN1217

THE COMMISSIONER: I think it gets back to the discussion we were having about what - this process going on. It's not to investigate matters like this. I just made it clear and even if the learned Commissioner's opinion could be divined from somewhere, I just say again was it in these notes, is it in the statement? I'll make up my mind what weight is to be given. These are issues which were more rightfully dealt with during cross-examination and this is now not the time to do that.

PN1218

MR KUCERA: Except, Senior Commissioner, the one point of difference in relation to the recent dispute over right of entry was that my friend sought to adduce some new evidence and so where it's new, which is clearly what it is - - -

PN1219

THE COMMISSIONER: Look, it might well be that Commissioner Kenna has got a view about right of entry. I'm sure he has and it might favour your client, but that won't advance the state of knowledge of the Commission dealing with the matter that's before it now. It might be of interest as to the general management of the site from your point of view, but it's not an issue that I need to grapple with.

PN1220

MR KUCERA: I don't have anything further.

PN1221

THE COMMISSIONER: Thank you. Thanks, Mr Wallwork.

PN1222

MS HARTLEY: Thank you, Senior Commissioner. That's all the witnesses I intend to call in this.

**** ROBERT JOHN WALLWORK FXXN MR KUCERA
PN1223

THE COMMISSIONER: Yes, you're discharged from further evidence,
Mr Wallwork. You can go or stay, depending on your wont.

<THE WITNESS WITHDREW [12.18PM]

PN1224

THE COMMISSIONER: Now, Mr Kucera, Ms Hartley says she doesn't intend to call any evidence. What do you intend to do?

PN1225

MR KUCERA: Okay, well, Senior Commissioner, I've got a problem and I intended to raise it with you earlier, but in the excitement of the ABC appearing, I neglected to raise it. The difficulty we have is that we have one witness and I found out on Saturday that he's in Queensland for the rest of the week and I have his travel itinerary to confirm the position, Senior Commissioner, so we'd respectfully request that this matter be stood down so that we'll be in a position to call our witness when he gets back from Queensland and he returns after
30 November.

PN1226

THE COMMISSIONER: Okay, it's not quite that easy. Tell me who he is, tell me how he's material to your case.

PN1227

MR KUCERA: Well, yes, he's material to our case, Senior Commissioner, in that it's one of the site officials, Mr Cavanagh, one of the CFMEUs officials,
Mr Cavanagh. There's been evidence given about particular events that he's supposed to have been involved in and he's going to give evidence that he wasn't involved in some of those events. He's also going to give evidence that we'd say is relevant to some of the matters that I cross-examined Mr Wallwork work on and indicated to him that we would be bring evidence, contrary evidence to what was being put by Mr Wallwork at the time.

PN1228

THE COMMISSIONER: Okay, you don't have any witnesses other than him?

PN1229

MR KUCERA: No, he's the only one, Senior Commissioner.

PN1230

THE COMMISSIONER: Ms Hartley, what do you say now?

PN1231

MS HARTLEY: Well, from 1 August when this application was brought, we have done everything in our power to ensure that this matter was not adjourned. We have put the union on notice at every step of our process, even when we were not obliged to, to ensure that the CFMEU had no grounds to seek an adjournment. With the greatest of respect, this witness was not foreshadowed at the last hearing. The matter was then re-listed shortly thereafter. To turn up this morning at the opening of their statement, even after we've been here some two hours and to now say that their witness is unavailable is beyond credibility, with the greatest of respect.

PN1232

Mr Cavanagh, with respect to the evidence that's before the Commission thus far, is really a minor player, to be honest. Mr McDonald and Mr Buchan appear to be the CFMEU officials that are there on a regular basis. If Mr Kucera doesn't wish to call them, that's his right, but to then seek to rely on another CFMEU official who, whilst he did have some involvement in some of the instances, we're talking about 25 instances and to seek to adjourn this matter again without even any courtesy is just beyond belief, to say that they haven't been speaking to
Mr Cavanagh, haven't been aware of his travel plans. It's just another excuse and, with respect, we're ready to go to submissions now and to finish this matter.

PN1233

THE COMMISSIONER: Has the intervener got any opinion? I will give you the opportunity.

PN1234

MR HOOKER: I don't have a submission to put in the circumstances. That's not to deny it would not be open to us under section 72 to put a submission, but in the present circumstances we have nothing to say on the issue.

PN1235

THE COMMISSIONER: Yes. Ms Hartley, I understand your frustration that leads to the submission you've just made, but I have to on the face of it believe
Mr Kucera when he says the person is material.

PN1236

MS HARTLEY: Well, with respect - - -

PN1237

THE COMMISSIONER: No, don't interrupt me, please.

PN1238

MS HARTLEY: My frustration is getting to me and I apologise, Senior Commissioner.

PN1239

THE COMMISSIONER: Yes, and I am conducting these proceedings and when I'm saying something and I ask you to sit down, please do it. When I am told by someone that they have someone who's material to their case, prudence says I have to believe it. If it's not correct, then the repercussions might be quite severe for the person who offers that, because it would be untrue, but in the meantime, I have to believe it and I'm going to have to grant an adjournment, but what I'm going to do is - when is he coming back?

PN1240

MR KUCERA: My instructions are 30 November is when he gets in, but it's at night, so, I mean, it's only a matter of days that we're asking for.

PN1241

THE COMMISSIONER: I will be out of the jurisdiction from tomorrow morning, but in view of this I am going to come back early. I will sit on Friday at 11 o'clock and we'll sit until we finish, whenever that is. That's my ruling. The Commission is adjourned on that basis.

<ADJOURNED UNTIL FRIDAY 2 DECEMBER 2005 [12.24PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ROBERT JOHN WALLWORK, SWORN PN908
RE-EXAMINATION BY MS HARTLEY, CONTINUING PN912
EXHIBIT #B DOCUMENT - DIARY NOTES PN966
EXHIBIT #C ORDERS ON RECORD PR964638 AND TRANSCRIPT PN1065
EXHIBIT #D TRANSCRIPT DATED 12/11/2005 PN1071

EXHIBIT #E TRANSCRIPT OF PROCEEDINGS BEFORE DEPUTY PRESIDENT MCCARTHY PN1071

---

EXHIBIT #F DAILY DIARIES PN1079
FURTHER CROSS-EXAMINATION BY MR KUCERA PN1111
THE WITNESS WITHDREW PN1223