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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 15593-1
DEPUTY PRESIDENT IVES
C2006/2767
CDK COMMERCIAL CONSTRUCTION PTY LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.170LW pre-reform Act - Appl'n for settlement of dispute (certified agreement)
(C2006/2767)
MELBOURNE
10.01AM, WEDNESDAY, 16 AUGUST 2006
Continued from 6/7/2006
Hearing continuing
PN55
THE DEPUTY PRESIDENT: Well looks like we've had some changes in the appearances, so I will just take the appearances again.
PN56
MR T LANGE: I seek leave to appear on behalf of the CDK Commercial Constructions. Could I also indicate, perhaps it will save me getting to my feet a little later, but the union intends to request a short adjournment to consider some submissions and a statement that I've provided to them. We would have no objection to a half hour adjournment.
PN57
THE DEPUTY PRESIDENT: Thanks Mr Lange
PN58
MR P O'GRADY: I seek leave to appear for the intervener, the ABC Commission.
PN59
MS WALTERS: I appear for the CPU with me is MR S REARDON. There is no opposition to leave sought by Mr Lange on behalf of CDK and to the extent that Mr O'Grady seeks leave as counsel to appear for the ABCC, there is no opposition to that.
PN60
THE DEPUTY PRESIDENT: No, thank you. Leave is granted in both cases. You want an adjournment Ms Walters?
PN61
MS WALTERS: Yes, your Honour, I envisage in the environment of half an hour but it may be a little longer, we've just been provided with submissions in reply and what appears to be a quite cumbersome witness statement, that we seek some time to consider.
PN62
THE DEPUTY PRESIDENT: Well I think in the circumstances there was some delay in your submissions getting to the employer parties. There was a request for an adjournment which I declined at the time. But I did say I would entertain an application for adjournment by either party at the time, so I'm prepared to grant the adjournment that you seek. There's no objection to that course, I imagine. You've answered that question Mr Lange.
PN63
MR LANGE: No, your Honour.
PN64
MR O'GRADY: There's certainly not your Honour.
PN65
THE SENIOR DEPUTY PRESIDENT: Yes.
PN66
MR LANGE: I might take the opportunity to provide in advance a copy of the material I've handed to the union, for your Honour's benefit.
PN67
THE DEPUTY PRESIDENT: That would be good Mr Lange and then I can read it too. All right, I'll adjourn until a quarter to 11, does that suit you Ms Walters?
PN68
MS WALTERS: Yes, your Honour.
PN69
THE DEPUTY PRESIDENT: All right we will reconvene at 10.45.
<SHORT ADJOURNMENT [10.04AM]
<RESUMED [10.56AM]
PN70
THE DEPUTY PRESIDENT: Look in the circumstances, I've had an opportunity to look through all the submissions and materials as I assume all of the parties have. In the circumstances it seems to me to be appropriate that we just go straight to witness evidence, rather than spend time now with submissions. We can come back to submissions after witness evidence.
PN71
MR LANGE: Certainly your Honour, we would be happy with that course. In relation to witness evidence can I say that immediately after the adjournment was called, I canvassed with the union, that the union put it's evidentiary case first for this reason. It would allow the termination of the objection, your Honour will see flagged in the submissions to the evidence of Mr Reardon, in so far as we say it's not relevant to the matter.
PN72
If the union's evidentiary case is put first, and the objection is upheld there is no need then to go into further witness evidence in rebuttal, particularly from Mr Hodges and we say this course would have a very significant prospect of shortening the proceedings in the interests of all the parties. We would seek a direction from the Commission that the union put it's evidentiary case first and the first witness be Mr Reardon, and we say that that course is consistent with the nature of this hearing being a de novo hearing. If that course is followed when Mr Reardon is in the box, we would put submissions in relation to the relevance of the matters flagged as his evidence-in-chief.
PN73
THE DEPUTY PRESIDENT: Thanks Mr Lange. What do you have to say that?
PN74
MS WALTERS: If your Honour pleases, we make the following point in the first instance. Today is the first opportunity that we've had to peruse it and to understand the submission by CDK of these proceedings that their interpretation of the appropriate course where the hearing is de novo is that we present our case as in fact, the applicant. So we have not had sufficient time to consider that application, which indeed involves some kind of bizarre reversal at this point in time of the proceedings of that course. In fact, we have now been through directions and are here before you, having adopted a certain course, that this is an application for review by CDK pursuant to the disputes resolution procedure.
PN75
What we've said in relation to the hearing de novo is that on the current authorities any construction that we say was - - -
PN76
THE DEPUTY PRESIDENT: Yes, but I accept at the moment, that that's a submission of the employers and I understand that the union don't object to that submission or alternatively support that submission. But the nature of the review that is before the Commission is not something that the Commission has yet determined. So as far as I'm concerned the matter that is before me is a matter that was bought by the employer and the normal course of events would be that the employer would essentially go first in the proceedings, and that would be the way that I would see things, if that saves you any further submission, Ms Walters, then we can perhaps move on. I'm not persuaded in the circumstances that I should change that course, Mr Lange.
PN77
MR LANGE: I understand that your Honour. In those circumstances, we will make our objection to Mr Reardon's statement in due course.
PN78
THE DEPUTY PRESIDENT: At the appropriate time.
PN79
MR LANGE: That will necessitate some evidence from particularly Mr Hodges rebuttal to what we anticipate the evidence-in-chief.
PN80
THE DEPUTY PRESIDENT: Yes, that's fine. Mr O'Grady you wanted to say something?
PN81
MR O'GRADY: Yes, I do want to say something on that your Honour and that's this. The fact is what is before you is a hearing of de novo, and obviously there are various forms of de novo hearing - - -
PN82
THE DEPUTY PRESIDENT: What is before Mr O'Grady is a review. Whether that is by way of a hearing de novo is a matter of submission and a matter of determination by the Commission. I don't know that there is any authority for the idea that the review is a hearing de novo. It seems to me on a prima facie basis, that that is exactly what it is, so I'm not taking exception to that.
PN83
MR O'GRADY: Except that your Honour, the submission is this. If you look at the nature of the issue that is before you, in essence it is a claim for a particular allowance under a certified agreement ought be paid. Now that matter was taken to the disputes panel in accordance with the agreement of course and it was successful, what is then sought by the employer, is a review by this Commission. Now the nature of the proceeding in this Commission goes back to what proceeding was before the panel. That is, the starting point is, the union has to establish its claim. That is that all of the elements that entitle the employees to the allowance have to be made out and if they are not made out, no allowance is payable.
PN84
So essentially the onus on the union to start with if your Honour calls upon CDK to go first, essentially CDK is disproving something which the union is not entitled to unless it proves the entitlement. It is not a hearing on the papers or anything like that. It is taking of evidence afresh, and in those circumstances it is submitted that there is no form of bizarre reversal at all. It is a claim that is put on that you have to be satisfied is made out.
PN85
THE DEPUTY PRESIDENT: I hear what you are saying Mr O'Grady, however what is before me at the moment, is a review of a decision of the disputes panel, in accordance with the disputes procedure in the agreement. Now I may well come to a conclusion in the context of considering that, that the manner in which that review should be conducted is as a hearing de novo. In other words, as if I was hearing it for the first time. I may come to some different view, but it seems to me at this point in time, the onus of making the case is carried by the applicant, and the applicant in this case is the employer and that's the way I intend to proceed.
PN86
MR O'GRADY: If your Honour pleases.
PN87
THE DEPUTY PRESIDENT: Thank you.
PN88
MR LANGE: I don't know if there are any outstanding issues in relation to intervention that need to be dealt with, but I would, subject to dealing with that issue, propose to call the employer representative.
PN89
THE DEPUTY PRESIDENT: No, I don't apprehend there's any outstanding issue as far as intervention is concerned. Intervention was granted to the ABCC or I should rephrase that – intervention was accepted as a matter of right in the proceeding prior. There was some question as to what weight should be based upon submission, which I've asked the ABCC to address in it's submissions and undoubtedly it will do that at the appropriate time. But at this point in time, there's no issue as far as intervention, at least as far as I'm concerned.
MR LANGE: Thank you, your Honour. In that case I call Julian de Kretser.
<JULIAN CHRISTOPHER DE KRETSER, SWORN [11.05AM]
<EXAMINATION-IN-CHIEF BY MR LANGE
PN91
THE DEPUTY PRESIDENT: You can be seated thank you. Before we begin the transcript recorder has just informed me that there is somebody with a mobile phone on in proceedings which is apparently interfering with the recording apparatus, so I could ask you make sure your mobile phones are switched off.
PN92
MR LANGE: Happy to proceed, your Honour?
PN93
THE DEPUTY PRESIDENT: Yes, go ahead Mr Lange.
PN94
MR LANGE: Mr de Kretser, can you please tell us your work address?
---636 Lygon Street, in Mitcham.
PN95
Who is your employer?---CDK Commercial Construction.
PN96
Approximately how long have you been employed by CDK Commercial Construction or its commercial corporate predecessors?---Since 1981.
PN97
Did you prepare a statement in these proceedings?---Yes.
PN98
Do you have a copy of that with you?---Yes.
PN99
Is that statement seven paragraphs in length?---Yes, it is.
PN100
Occupies one page?---Yes.
PN101
It has a copy of your signature at the bottom of the seventh paragraph?---It does.
PN102
Are the contents of that statement true and correct?---They are.
PN103
I tender that your Honour.
THE DEPUTY PRESIDENT: Yes, if you just bear with me a moment
Mr Lange, I'm just trying to – yes, I have it.
EXHIBIT #CDK1 STATEMENT OF JULIAN DE KRESTER
PN105
MR LANGE: Mr de Kretser can I hand you a document please, and I indicate to the court that the document I'm handing is numbered in the exhibit list provided to the Commission as exhibit 4, copy of tender accepted by Caroline Springs Swim Property Pty Ltd, the Commission should have a copy of that in the materials.
**** JULIAN CHRISTOPHER DE KRETSER XN MR LANGE
PN106
THE DEPUTY PRESIDENT: Sorry that is in the materials actually attached to your submissions?
PN107
MR LANGE: Initial submissions, your Honour, yes. There are a number of exhibits which I would seek to tender through this witness and through Mr Hodges in due course.
PN108
THE DEPUTY PRESIDENT: There's an exhibit list, do you know which one?
PN109
MR LANGE: It's number 4, copy of tender accepted it is a one page letter on CDK Commercial Constructions letterhead.
PN110
THE DEPUTY PRESIDENT: Yes, I have it.
PN111
MR LANGE: Thank you.
PN112
Mr de Kretser, do you recognise that document?---I do, yes.
PN113
You'll see at the bottom right-hand corner, there is a signature and a date, do you know who's signature that is?---I believe it's the signature of David Urry.
PN114
Who is David Urry?---He's the client, the principal of the client.
PN115
The client being?---Caroline Springs Swim Property Ltd.
PN116
Okay, can you indicate to me what the significance of that signature appearing on that letter is.?---The letter effectively becomes the instrument of agreement to the AS4000 standard form contract and constitutes the building contract.
PN117
All right and in the first paragraph of that letter, there is what as described as revised fixed lump sum tender for this project in some $1,342,561 excluding GST. Is it correct to say that that is the contract sum of the contract you have just described?---It is the contract.
Yes, I tender that your Honour.
EXHIBIT #CDK2 TENDER CONTRACT
PN119
MR LANGE: Mr de Kretser, I'm handing you another document and for your Honour's benefit it is the next document you will find in the materials, being building permit, Learn to Swim Centre.
**** JULIAN CHRISTOPHER DE KRETSER XN MR LANGE
PN120
THE DEPUTY PRESIDENT: Yes.
PN121
MR LANGE: Do you recognise that two page document?---Yes, I do.
PN122
Can you describe it please?---It is the building permit document granted by the Gardner Group who are the building surveyors for the project.
PN123
All right, is there a figure on that document which reflects the cost of construction works?---There should be, I'll just find it – just looking for it myself - - -
PN124
Can I take you to the second page, top left-hand corner, seventh line down?---Yes, total value of building works $1.2m.
PN125
Does that in fact reflect approximately the contract value?---It does yes, the permit is obviously taken out by David Urry, prior to tenders being finalised and then accept.
PN126
All right so there is a discrepancy between the contract sum and the description in here of the value of the contract sum and you've said that Mr Urry applied for this?---Yes.
PN127
Does that explain the discrepancy?---It does it is quite often.
PN128
Is there anything else that you want to say about that, or is that?---No.
I tender that your Honour.
EXHIBIT #CDK3 BUILDING PERMIT DOCUMENT GARDNER GROUP
PN130
MR LANGE: I'll hand you one further bundle of documents Mr de Kretser. Can you just look through those documents there should be a series of photographs. For your Honour's benefit this is exhibit 7 sub (a) to (d) that should be filed in the Commission. Do you recognise what's depicted in those photographs?---Yes, I do.
PN131
Could you describe what's depicted in those photographs, just in a general way please?---Yes, the Swim Centre under construction.
PN132
All right, I tender that. I'm sorry, that's the Swim Centre project?---Where the contract is held, yes.
**** JULIAN CHRISTOPHER DE KRETSER XN MR LANGE
PN133
I tender that bundle of photographs.
EXHIBIT #CDK4 BUNDLE OF PHOTOGRAPHS
PN134
MR LANGE: Mr de Kretser, and here your Honour, I go into some rebuttal evidence. The union claim that the project – a project value for the purpose of calculating site allowance under the CDK enterprise agreement is calculated according to a geographical area in which a number of builders may work. What is your experience in the industry about how project value is calculated under site allowance procedure?---Certainly, my experience, it has always been the particular project that we've been engaged on as a specific contract value. It's never entertained other contracts which might be in the vicinity of it. I'm not familiar with the geographical allowance other than a CBD allowance which used to be in the old VBIA.
PN135
Have you had any experience in the past in which this union or any other union, has claimed a site allowance being payable according to the geographic location of work you are conducting?---Had a number of instances, most recently, we do a lot of work at Swinburne University and we've had a couple of contracts running concurrently at Swinburne University. One where we agreed with the union that the project value was in fact, at the lower level of the site allowance scale, and we agreed to pay that site allowance. We had other projects running on the same site concurrently and the union didn't even choose to pursue the site allowance by combining those projects as one project. In other words they accepted them as being separate projects.
PN136
Have you had experiences?---December January last we were engaged in two projects on the CSIRO site at Clayton , a plumbing organizer mounted an argument for a site allowance by combining projects. That matter was taken up by the Disputes Panel, because we refused to pay it. The decision – at the consultative stage the disputes panel, the matter was thrown out, in that the panel refused to accept the – accepted the two projects as being independent projects, be that they were being constructed by the same contractor on the same site.
PN137
MS WALTERS: With respect, we object on the basis that the material that is being led by CDK goes significantly beyond the witness statement filed in these proceedings. The witness statement of Mr de Kretser was extremely limited in it's content and certainly not general in relation to his experience in the industry in any other way. It is very specific in it's content, so we object to what's being led on the basis that it's way beyond the scope of the statement filed and served in these proceedings.
**** JULIAN CHRISTOPHER DE KRETSER XN MR LANGE
PN138
MR LANGE: What we say about that is and as I indicated in earlier that it is rebuttal evidence. The particular paragraph it rebuts is paragraph 18 of Mr Reardon's statement which goes to his experience in the industry. We say it's appropriate that the question be asked and answered.
PN139
THE DEPUTY PRESIDENT: I intend to allow it.
PN140
MR LANGE: Mr de Kretser, were there any other specific examples of geographic area and site allowance and claims by unions that you were thinking of?---We worked a number of projects at Melbourne University where the union has on occasions to attempted - - -
PN141
Which union is that?---The CFMEU, has attempted to get an all - encompassing site allowance for the whole site, as opposed to a particular project, we're engaged on. That's been taken to the disputes board in the past, and always been rejected.
PN142
All right and in relation to that last example, you say there are a number of people working within the Melbourne University precinct. I take it, and please correct me if I am right or wrong about this – sorry I will withdraw that your Honour, I'll ask the question a different way.
PN143
Were the other people to whom you refer, who were conducting works in the area of the Melbourne University, associated with CDK Commercial
Constructions?---No. Separate contractors.
PN144
All right, do you know Mr Reardon from the CFMEU?---Yes, I know
Mr Reardon.
PN145
In all of the examples that you have mentioned, three examples, I think there are Swinburne University, CSIRO and Melbourne University, I think that's correct isn't it?---Yes.
PN146
Has Mr Reardon been involved in making those claims which you have described? Of in supporting those claims you have described?---Not on those projects, no.
PN147
Has Mr Reardon apart from leaving aside the consideration of Caroline Springs, has Mr Reardon made a site allowance claim on CDK on the basis that CDK performs work in a geographical area and should pay site allowance according to the value of all works conducted in that area in the matter, has he made a claim of that nature on CDK before?---Certainly not to me and not to my knowledge.
**** JULIAN CHRISTOPHER DE KRETSER XN MR LANGE
PN148
In relation to the works that are being conducted on Caroline Springs you say in your statement that the Learn to Swim Centre project - I'm looking at paragraph 7:
PN149
Operates independently of any other project, the site is fenced off with its own access and egress and Citigate conducts its own site inductions, has its own site supervision and first aid and has its own designated site amenities and operates to its own program of works.
PN150
In relation to that paragraph is there any aspect of your project which is integrated operationally or otherwise with any other works that might be conducted in what I'll call the development area at Caroline Springs?---None whatsoever.
PN151
I have nothing further in chief.
PN152
THE DEPUTY PRESIDENT: Thanks Mr Lange. Is there any questions you wanted to ask?
PN153
MR O'GRADY: I have no questions, your Honour.
PN154
THE DEPUTY PRESIDENT: Thanks, Mr O'Grady.
PN155
MS WALTERS: Your Honour if I could just have a couple of minutes to get some instructions?
PN156
THE DEPUTY PRESIDENT: Sure.
PN157
MS WALTERS: If your Honour, we seek to make a submission prior to cross-examination of the witness which is pertinent to cross-examination of the witness in the proceedings, and certainly we would not object if there is a very short submission, to the witness remaining in the witness box. But certainly we seek to make that submission prior to commencing of cross-examination of that witness. I seek leave to do so.
PN158
THE DEPUTY PRESIDENT: Rather an odd course Ms Waters, but is there objection to that?
PN159
MR LANGE: Perhaps if we could hear what the submission is your Honour.
PN160
THE DEPUTY PRESIDENT: Yes, Mr O'Grady?
**** JULIAN CHRISTOPHER DE KRETSER XN MR LANGE
PN161
MR O'GRADY: I can't say anything further your Honour.
PN162
THE DEPUTY PRESIDENT: No, go ahead Ms Walters.
PN163
MS WALTERS: If your Honour pleases, the witness has led evidence in relation to his experience of project – what he says project site allowances in very separate and distinct geographic areas from the matter which is currently before you. He has also led evidence in relation to what he says is the distinct nature geographically of the location of what he says, is the project he has been constructed to build on.
PN164
We will be seeking to cross-examine him specifically on that point. We say in the current context prior to that cross-examination, and really the proceedings as a whole it would be a course, and certainly open to the Commission's determination on this, that in fact a site inspection of the location at which surrounds the claim for, that has been made previously before the Disputes Panel, for the site allowance. That is what we say the project is, what the applicant for review says the project is, can only be benefited we say in terms of any interpretation you can give to the word, project, cannot be separated from what you might physically view, as either a project which is broader or more limited, which really goes to the heart of the matter before you and what the parties are seeking for determination.
PN165
It really has certainly become more apparent to the respondent, the union, that in terms of making that determination and forming a view as to what is the project, the Commission can only be wholly assisted by a site inspection. In fact, the benefit to the Commission and the fact of having that inspection, prior to further evidence being led, or cross-examination of that in relation to specifically what is the notion of the physical elements of this, as opposed to the geographical and we will have arguments about that. The Commission will be best served by adopting that course.
PN166
We are asking the Commission and in fact, both parties before you, are asking the Commission to import some meaning to the same term. The difference in the submission and the belief of both parties to the agreement and what that means is based on a physical construct, we say. So we in that essence, our submission would then be to essentially to make it quite clear for an adjournment prior to commencing cross-examination of the witness.
PN167
THE DEPUTY PRESIDENT: Why would – even if I was to accept the application as far as it goes to a site visit, why would it matter whether that took place prior to, or after witness evidence?
**** JULIAN CHRISTOPHER DE KRETSER XN MR LANGE
PN168
MS WALTERS: Your Honour, what we say is that it gives you a contextual understanding of the evidence that's been led, cross-examined and re-examined on so that you yourself, your Honour, have a real understanding of in fact, that evidence and the weight that you should, in your view, attribute to that evidence and you are unable to essentially have that, we say without having performed that site inspection.
PN169
THE DEPUTY PRESIDENT: Mr Lange?
PN170
MR LANGE: We would object to that course, your Honour. It would be first and foremost highly unfair to Mr de Kretser to have him - - -
PN171
THE DEPUTY PRESIDENT: Sorry, what are you objecting to? Are you objecting to this, or do you object to when it takes place?
PN172
MR LANGE: Two things, but perhaps we only need to deal with one of those presently. There is no requirement we say for the site visit to be conducted prior to cross-examination of Mr de Kretser. If in due course the evidentiary case of CDK has closed and the union wishes to refresh it's application that there be a site visit, we would have something to say about it at that time. But we say, in any case, there is no purpose served in having a site visit prior to the close of CDKs evidentiary case. If Ms Walters wishes to cross-examine on the contents of CDK4, she can do so.
PN173
THE DEPUTY PRESIDENT: Ms Walters I'm not persuaded that it would make any whatsoever, I'm not going to make any comment as to whether or not at this point there should be a site visit. But in my view, the Commission is sufficiently capable of providing the context to the evidence whenever that site visit takes place, if it's determined that such is an appropriate thing to do. So I am going to ask you to proceed with the cross-examination and if you do wish to you can again raise the issue of the site visit, at an appropriate time. In my view, if it is to occur, should be after all evidence is in, not simply CDK evidence.
PN174
MS WALTERS: Certainly your Honour we will do so at the appropriate time.
THE DEPUTY PRESIDENT: Yes.
<CROSS-EXAMINATION BY MS WALTERS [11.29AM]
PN176
MS WALTERS: Mr de Kretser, can you tell us what you know about the tendering process?---For this project or general?
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN177
For this project, what you say is this project? For the construction of the Caroline Springs Swim Centre?---We previously built a similar centre for the same client, he said he had other projects he was going to do in Melbourne. He asked us to tender for this project and issue with drawings and specifications, we prepared a price and submitted it and negotiated a price and that was it.
PN178
In I believe it is CDK3, I just need to confirm that exhibit 5 to the submissions
of - - -
PN179
THE DEPUTY PRESIDENT: That's correct, yes.
PN180
MS WALTERS: Have you got a copy of CDK3 before you?---I do.
PN181
That is a building permit, correct?---Yes.
PN182
For the construction of the Caroline Springs Swim Centre?---It is.
PN183
Did you arrange for the building permit, Mr de Krester?---No, I believe the client did.
PN184
You believe the client did, or didn't?---I believe the client applied for the building permit yes.
PN185
The client applied for the building permit, right. Who would, and this is based on specific being the exhibit and also what's been led in relation to your vast experience in the industry, who would be, who would the owner of Caroline Springs Swim Centre apply to for that building permit?---The building surveyor, the private building surveyors.
PN186
Who is the building surveyor?---Gardner Group.
PN187
What is the role of the building surveyor?---To ensure that the plans and specifications comply with the uniform building regulations, or whatever they are called now, the building code, the building regulations.
PN188
So the physical construction of the swimming centre complies with?---The building regulations.
PN189
Mr de Kretser, have you visited the Caroline Springs town centre site during the construction of the swimming pool?---I have driven through Caroline Springs, yes.
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN190
During the construction of the swimming centre?---Yes.
PN191
How much time have you spent down there?---Two hours.
PN192
In total?---Yes.
PN193
At this point in time, I'm going to – I'm more than happy to – I might first to your Honour this is in fact exhibited to the witness statement of Mr Reardon, exhibit 2. I understand this is a more fancier version of that exhibit.
PN194
Do you dispute in relation to that map?
PN195
MR LANGE: I object to that question I think it's an unfair one. Can I suggest a course which the matter the document marked for identification and specific questions put in a fair manner to Mr de Kretser, and it can be tendered in due course.
PN196
THE DEPUTY PRESIDENT: Yes, I think that's not a bad idea Ms Walters.
MS WALTERS: Yes, your Honour.
MFI #1 MAP
PN198
THE DEPUTY PRESIDENT: You intend to tender this later through Mr Reardon, did you?
PN199
MS WALTERS: Yes, your Honour.
PN200
On that map Mr de Kretser, there is a star shaped spot, which we say is the site of the construction of the Caroline Springs Swim Centre, is that it?---Yes, close enough, although the parade doesn't exist yet, the road isn't built.
PN201
THE DEPUTY PRESIDENT: Sorry, which road, - I see the one there isn't road marked on parade.
PN202
MS WALTERS: Mr de Kretser you've exhibited, I think it is exhibit 4 to your statement CDK4, are some photocopies of photographs, to be correct. Yes, exhibit 4, have you got that? Do you have copies of the copies of the photographs?---I do.
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN203
In paragraph 7 of your witness statement, let me confirm that it is paragraph 7, it is, you say that the Learn to Swim centre site operates independently of any other works being performed at what we say is the project? Is that correct, it has it's own access and egress and you've led evidence that that's the case?---Yes.
PN204
Is that the case currently Mr de Kretser?---I haven't been there in a month, so I don't know if anything's changed, but I don't believe it has.
PN205
So Mr de Kretser are you aware of the construction of a library and sports stadium?---No.
PN206
Mr de Kretser can you indicate to the Commission in the photocopies of the photographs where the distinct boundaries are of the construction of the Learn to Swim Centre?---The site is completely fenced under our control. You can see a fence in some of the photographs, whether you can see it a full perimeter of the fence, I doubt. But it is fenced off from any adjacent land, the site that's owned by this company is fenced off.
PN207
Mr de Kretser, it's still part of the Caroline Springs Town Centre, is it not?---It's part of Victoria.
PN208
It may well be part of Victoria, but it is part of the Caroline Springs Town Centre.
PN209
MR LANGE: I object to this line of questioning if something is going to be put to Mr de Kretser to say this is the Caroline Springs Town Centre project and the manner in which and the person who has defined that, fair enough, but there's been no foundation established for this line of questioning.
PN210
THE DEPUTY PRESIDENT: Ms Walters?
PN211
MS WALTERS: If your Honour pleases.
PN212
THE DEPUTY PRESIDENT: Sorry, just before you do go on. You say
Mr de Kretser that there is a fence going all the way around the property that's to be the swim centre, is that correct?---Yes.
PN213
If I look at the first photo in the bundle, which is the one with the blue vehicle on the right-hand side of the photograph and to the right of that blue vehicle, it shows part of a fence. That's part of the perimeter fence?---That's right, yes.
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN214
Thank you.
PN215
MS WALTERS: If your Honour pleases, we seek to address the concerns raised by Mr Lange. I think that that can be done, by in relation to MFI 1 you will note that Mr de Kretser you have a copy o f that there, at the bottom you will see Caroline Springs on the left-hand side, on the right-hand side, you will see Delfin, at the top what is the town centre with a T and a notation Caroline Springs, that's correct isn't it?---Yes.
PN216
Have you seen a map of this nature before?---I've seen it in Delfin's sales office, I've seen different maps.
PN217
When was that Mr de Kretser?---When I was there a month ago.
PN218
A month ago, had you seen it previously Mr de Kretser?---At the Disputes Panel hearing, you presented a map similar to this.
PN219
Have you seen it prior to that Mr de Kretser?---No.
PN220
When did you commence construction of the swimming pool?---I think it was March some time.
PN221
March this year, or March last year?---This year.
PN222
Mr de Kretser you've led evidence that you've driven out to the Caroline Springs town centre?---I've driven to our project.
PN223
In fact your evidence was that you've driven through Caroline Springs?---Yes, looked around because it's interesting.
PN224
Have you driven out to your project, or have you driven through Caroline Springs?---I went to the project and then I decided I'd look around Caroline Springs to see what it was about.
PN225
So when you were there on your drive through Mr de Kretser you noticed the other infrastructure that's been constructed and currently
being constructed?
---Yes.
PN226
So did you notice the shopping centre there Mr de Kretser?---I didn't look specifically at any particular building under construction. I noticed there is a shopping centre there, there are schools there, it's like any other suburb. There are buildings being built everywhere.
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN227
Mr de Kretser did you notice the school?---There is a school across the road from the swim centre.
PN228
Correct there is, and you agree that that is marked in MFI1?---Caroline Springs College, yes.
PN229
Did you on your drive notice that there was an area set aside which is marked on the map as the proposed library?---No, I didn't notice that.
PN230
So when you were driving through you didn't notice that in effect, that that area had been set aside, or in fact, as you would commonly say in the construction industry, being prepared for construction?---I didn't see any signs of that at all.
PN231
Mr de Kretser when were you at Delfin, and what do you mean by at Delfin?
PN232
MR LANGE: I don't think that was the evidence which was given by
Mr de Kretser he gave evidence that he was at a sales information.
PN233
THE DEPUTY PRESIDENT: In Delfin's office, I think he might have said Mr Lange.
PN234
MR LANGE: I do think the two words could associate, perhaps, if that could be perhaps in the statement.
PN235
THE DEPUTY PRESIDENT: Yes.
PN236
MS WALTERS: If your Honour pleases, that is in fact what we were seeking clarification on and I think the evidence that was led was that Delfin's office, so I may not have understood that he said Delfin's office, so we are seeking to clarify that.
PN237
Can you explain to the Commission what you mean by Delfin's office?---They have a sales centre somewhere near the town centre on the lake. It might be a sales and information centre. I dropped in there just to see what they had on display.
PN238
When did you drop in there just to see what they had on display?---On 19 July when I took these photographs.
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN239
THE DEPUTY PRESIDENT: What do you understand their role to be
Mr de Kretser?---I assume they are a property developer, developing the Caroline Springs suburb.
PN240
Thank you.
PN241
MS WALTERS: When you were at the – what's marked as the sales and information centre of Delfin, did you notice any other developments on display at the information centre?---No.
PN242
Did you see a model of the - - -?---Yes, I saw a model.
PN243
Was the model in a similar layout to MFI 1?---I think so, yes.
PN244
Did the model have a title on it?---If it did, I didn't pay any attention to it.
PN245
It wasn't indicated or what it was - - -?---Don't know.
PN246
Or what it was proposed to be?---I don't know.
PN247
If it was the Delfin town centre project sales office, you didn't - - -?---I wasn't there to buy a house, so I was just looking around.
PN248
Are you suggesting Mr de Kretser that the only thing that's being developed at the Caroline Springs project is a house?---I don't know who's developing what, for instance the project we are building - - -
PN249
That's not correct Mr de Kretser you know who is - - -?---The project we are developing isn't being built by Delfin. Isn't being developed by Delfin.
PN250
The housing isn't?---No the project we are building isn't being developed by Delfin.
PN251
On that point Mr de Kretser is there a separate residential area that's marked on that model that you saw?---I don't know.
PN252
Did you see the model or not Mr de Kretser?---Yes, I did see the model, it was a very pretty model.
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN253
Did you take notice of the content?---I didn't take much notice of it, no, I was not really interested.
PN254
Did that model indicate quite clearly that the residential area is on - - -?---I don't know, I have no idea.
PN255
THE DEPUTY PRESIDENT: Perhaps you could wait until the question has been asked before you answer Mr de Kretser?---I thought I'd already answered it.
PN256
MS WALTERS: In relation to this model that you appear to have glanced over, was the area allocated to the Caroline Springs Swim Centre indicated, marked out?---I believe so, yes, because that's why I was looking at the model to see if it was there.
PN257
You believe so, it was or it wasn't?---I don't know, I have no photographic memory of it.
PN258
Mr de Kretser did you examine the model of - - -?---I glanced at the model.
PN259
Right but sufficiently to be able to ascertain that the Caroline Springs, the area marked out for the Caroline Springs Swim Centre, is marked on the model?---I believe it is.
PN260
You believe it is, it is, or it isn't?---I believe it is.
PN261
So Mr de Kretser you glanced at it to believe that the swim centre is marked on the model, were proposed residential areas marked
on that model Mr de Kretser?
---I can't recall.
PN262
You can't recall. How big is the model Mr de Kretser?---About as big as this table.
PN263
Your evidence Mr de Kretser is that the model is as big as that table.
PN264
THE DEPUTY PRESIDENT: From the point of view of the record, the witness has indicated - - -?---About three metres long by a metre wide.
PN265
The witness is indicating the associate's table in the courtroom.
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN266
MS WALTERS: I repeat your evidence is that the model is the size of the table that you are looking at currently as indicated by your Honour?---It's a large model, yes.
PN267
Is it that big or is it not?---I would think about 3 metres by 1 metre and a half wide, does that help?
PN268
I repeat Mr de Kretser when you glanced that you were able to determine that the area marked out for the swim centre is marked on that model. Were you able to ascertain, or did you see areas marked out for residential and proposed residential?---I didn't look for anything else on the model.
PN269
THE DEPUTY PRESIDENT: I think the witness has answered that question with respect Ms Walters. You are entitled to ask him the question but you are not entitled to attempt to badger him over the matter, he said, he can't recall. So if he can't recall, he can't recall.
PN270
MS WALTERS: Yes, your Honour.
PN271
Mr de Kretser you've led evidence in relation to your experience in the construction industry and your experience in relation to the situations where I think the CFMEU has claimed a geographic site allowance?---I didn't say geographic, I said a site allowance by combining projects.
PN272
No Mr de Kretser what you said and the evidence that was led from you, was that in relation to a claim for a geographic site allowance.
PN273
MR LANGE: With respect your Honour, that was given. I asked the question and I used the term geographic, the question was answered with specific examples which were described as projects next to each other and projects on the same area of development.
PN274
THE DEPUTY PRESIDENT: Yes. One of which I think was Melbourne University or a University.
PN275
MR LANGE: Melbourne University, Swinburne University and CSIRO Clayton's site.
PN276
THE DEPUTY PRESIDENT: Yes.
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN277
MS WALTERS: Mr de Kretser in relation to that, I think you used the example in the first instance of Swinburne?---Yes.
PN278
And of CDK constructing at various areas, at Swinburne?---In separate buildings, yes.
PN279
Obviously Mr de Kretser you are familiar with the process for a claim for site allowance under appendix (c) of the CDK agreement?---Yes.
PN280
At any one time, CDK will employ construction workers under that agreement who are working at different locations, correct?---Yes.
PN281
So an employee who's employed under the terms and conditions of that agreement may at one point be required to perform work or directed to perform work at Swinburne, and at another point in time on the swimming pool for example?---For example, yes, not specifically.
PN282
Or in fact any other area, or any other construction site that CDK is performing work on, correct?---Yes.
PN283
If a claim has not been made that the site that worker who is working under the CDK agreement for a site allowance has occurred and
in fact has been awarded on the basis of the project value of that site, the specific site, you will not be required pursuant to
that enterprise agreement to pay the employee the site allowance?
---Yes, I believe, the answer is yes, but I question under what circumstances.
PN284
I understand that - - -
PN285
MR LANGE: Can I ask if the question may be put in small packets, it seems a little double barrelled, to me at this stage. Maybe the proposition could be put so that the answer can be clearly given.
PN286
THE DEPUTY PRESIDENT: Yes.
PN287
MS WALTERS: I'm happy to clarify that, and I think it will be clarified shortly.
PN288
That is, Mr de Kretser where CDK engages employees to perform construction work at a location that it's been determined that there is a project value that accrues a site allowance in accordance with your enterprise agreement you are required to pay that employee the site allowance?---Yes.
**** JULIAN CHRISTOPHER DE KRETSER XXN MS WALTERS
PN289
But that same employee may on a different day, perform work under that enterprise agreement at a separate location where CDK are performing work, correct?---Yes.
PN290
And CDK may be performing work as a principle building, a contractor, or indeed a subcontractor at any one of those varieties?---It may but we are only head contractors, we don't do any subcontracting.
PN291
Right you only – you are a principle builder as such?---Yes.
PN292
You've not been contracted to perform a specific role at a construction site?
---What does that mean?
PN293
Well in essence what it means is – we retract that question. However you did answer Mr de Kretser that in the event that - - -?---We pay our men a site allowance on a project where the value is in excess of the site allowance threshold and if they are on another job at the next day, they don't get it.
PN294
Yes, if they are on another job, the next day, where it has not been determined there is a project value above the 2.1 even though they are employed under the same agreement, you don't pay it?---That's right.
PN295
Okay Mr de Kretser when you won the contract to build the swim pool, did you know that it was located at the town centre, Caroline Springs town centre?---No.
PN296
You didn't?---No, I knew it was in Caroline Springs because of it's name, nothing more than that. I had no knowledge of a town centre or anything.
PN297
Your evidence is that you had no knowledge of a town centre at Caroline Springs?---No, it wasn't even on my street directory, Caroline Springs.
PN298
Nothing further your Honour.
THE DEPUTY PRESIDENT: Thank you. Any re-examination Mr Lange?
<RE-EXAMINATION BY MR LANGE [11.57AM]
PN300
MR LANGE: Just one question your Honour. The union has said to you in responding in relation to – I think I'm putting this correctly – when do you say the final amounts determined to be payable under site allowance procedure in your enterprise agreement it's paid for the time when the employees work on that particular project?---That's correct.
**** JULIAN CHRISTOPHER DE KRETSER RXN MR LANGE
PN301
When the word determined by the union, what's your understanding of how a site allowance is determined under that agreement?---In my experience, it's always been the contract value of the project.
PN302
Yes. Thank you very much, nothing further your Honour.
THE DEPUTY PRESIDENT: Thank you Mr de Kretser you can stand down now and thank you for your evidence.
<THE WITNESS WITHDREW [11.58AM]
PN304
THE DEPUTY PRESIDENT: Just before you call your next witness Mr Lange. It seems to me that there are really only two questions before the Commission. The first is what is the project that the work of CDK Constructions at Caroline Springs forms a part of?
PN305
MR LANGE: Or constitutes, we would say.
PN306
THE DEPUTY PRESIDENT: Or constitutes yes. And the second is what is the value of that project?
PN307
MR LANGE: We say - - -
PN308
THE DEPUTY PRESIDENT: They are the only two things that are really before the Commission. Has anybody got any different view to that? I mean you might phrase it differently, but essentially it's - what is the project of that work is part of or constitutes as you say, and secondly, what's the value?
PN309
MR LANGE: Correct, your Honour, that's what we say in our submissions in paragraph 2 of reply.
PN310
THE DEPUTY PRESIDENT: You agree with that Ms Walters?
PN311
MS WALTERS: Yes, your Honour.
PN312
THE DEPUTY PRESIDENT: Bearing that in mind, I'm not sure we should get too distracted by matters that may not be relevant to those two questions. Now I know there's going to be some points taken about relevance and so forth and I will determine at this particular point in time, but it just occurs to me that in the context of that evidence we may to some extent be deviating into some areas that we don't necessarily need to go, given the questions that we've got on the questions that are before the Commission. I'm not directing that at you Mr Lange, I'm simply taking it as a general comment.
PN313
MR LANGE: Yes, your Honour.
PN314
THE DEPUTY PRESIDENT: Having said that, call your next witness.
MR LANGE: I will do so, I call Mr Hodges.
<DANIEL HODGES, AFFIRMED [12.01PM]
<EXAMINATION-IN-CHIEF BY MR LANGE
PN316
MR LANGE: Mr Hodges could you for the record state your full name please?
---Daniel Hodges.
PN317
Your work address?---332 Albert Street, East Melbourne.
PN318
Who is your employer?---Master Builders Association Victoria.
PN319
Approximately how long have you been employed by the Master Builders Association Victoria?---Around three and a half, four years.
PN320
What's your position with Master Builders?---Currently senior industrial relations adviser.
PN321
Mr Hodges, have you prepared a statement in these proceedings?---I have.
PN322
Does that statement comprise four pages of 15 paragraphs and two annexure?
---Yes, that's correct.
PN323
You have a copy of that statement with you,?---I do.
PN324
Is that statement true and correct?---Yes, it is.
I tender that your Honour.
EXHIBIT #CDK5 STATEMENT OF DANIEL HODGES
PN326
THE DEPUTY PRESIDENT: I probably should say further to the comments I just made a few moments ago, that in the context of this particular application, there's probably a further question before the Commission that being was the assessment made by the disputes panel correct, in relation to those two questions. Now I realise that brings up the subject of what constitutes the review, but a review by it's nature must be a review of something and what is before me, is a review of the decision of the disputes panel.
PN327
MR LANGE: Yes, your Honour, I understand that. It may be that there are a couple of questions in relation to that issue. In due course, our submission will be that it is in fact a de novo hearing, not to leave aside the disputes board decision entirely, but be that as it may there may be a couple of questions on the area.
**** DANIEL HODGES XN MR LANGE
PN328
THE DEPUTY PRESIDENT: Yes, anyway the statement of Mr Hodges is marked CDK5.
PN329
MR LANGE: Yes.
PN330
MR O'GRADY: Your Honour I might just foreshadow that the ABC Commission will be making submissions about that issue and in essence, it will not be an issue for you to determine as to whether or not the decision of the panel is correct and I'll take you to the appropriate authority on that.
PN331
THE DEPUTY PRESIDENT: Thanks Mr O'Grady.
PN332
MR LANGE: I hand a document to you Mr Hodges. In the exhibits which were initially filed in this matter, one of those exhibits was ASIC, Australian Securities Investment Commission search, are you aware of that having been filed.
PN333
THE DEPUTY PRESIDENT: I'm sorry, let me interrupt before the witness answers that question, just so that I'm clear on something and I should have asked you at the time, or maybe you mentioned it and I didn't hear you. The attachments that are currently with Mr Hodges statement, did you intend that they be part of CDK5?
PN334
MR LANGE: That they be part of CDK5. I'm sorry perhaps I should ask a couple of questions to clarify and have those exhibits as part of CDK5, your Honour.
PN335
THE DEPUTY PRESIDENT: Yes, perhaps that's the way.
PN336
MR LANGE: Mr Hodges, can I take you to your statement and to the first bundle of documents that forms exhibit DH1. There are three that appear to be decisions of the Victorian Building Industry Disputes Board. They are 75 of 2004 on 30 May 2004, 75A 2004 on it appears to be 19 May 2004, and 75B of 2004, on Thursday 27 May 2004. Is that correct?---Yes, that's correct.
PN337
Did you receive those copies from the Victorian Building Industry Dispute Board?---Yes.
PN338
If I go to the second of those attachments. It is a series of pages annexed if you will of a document entitled Victorian Building
Industry agreement 2000 to 2005, pages 6, 7, 82, 83, 84, 85, 86, 87, 92, 93, 94, 95, 102, and 103 is that correct?
---Yes, that's correct.
**** DANIEL HODGES XN MR LANGE
PN339
To your knowledge is that part of the document of the Victorian Building Industry agreement 2000 2005?---Yes.
PN340
All right, I ask that that be a part of the exhibit CDK5.
PN341
THE DEPUTY PRESIDENT: Yes, that's fine, thank you.
PN342
MR LANGE: Thank you, your Honour.
PN343
The other document I handed to you the Australian Securities Investments Commission historical extract, I started by indicating to you that initially filed in this matter by the Master Builders Association on behalf of CDK was an ASIC extract, exhibit 2 it's labelled in the exhibit list. That ASIC extract was not a historical search, is that correct?--- No.
PN344
To your knowledge is the historical search you've got there in relation to the same entity, that is Caroline Springs Swim Property Pty Ltd? Is that a document in relation to Caroline Springs Swim Property Pty Ltd?---Yes, it is.
PN345
Did you request that that search be performed?---I did.
PN346
Is that what you were provided with as a result of that request?---That's correct.
PN347
Do you have any reason to believe that the contents of that document are not accurate?---None, whatsoever.
I tender that your Honour.
EXHIBIT #CDK6 ASIC EXTRACT
PN349
MR LANGE: I hand you another document and for your Honour's benefit, this document is exhibit labelled 10, but if you follow the numbering it's exhibit 9, initially field in the matter, it is a land title search, it is towards the end of the bundle of documents filed with CDKs submissions in chief.
PN350
THE DEPUTY PRESIDENT: Exhibit 10, is it?
PN351
MR LANGE: I think it's labelled exhibit 9, your Honour.
PN352
THE DEPUTY PRESIDENT: Yes, I have it.
**** DANIEL HODGES XN MR LANGE
PN353
MR LANGE: Mr Hodges did you request that search be conducted?---Yes, I did.
PN354
Is that the document which was provided to you in response to that request?
---Yes, it is.
PN355
To your knowledge is the content of that true and correct?---Yes, it is.
Could that be marked your Honour.
EXHIBIT #CDK7 LAND TITLE SEARCH
PN357
MR LANGE: Your Honour, I have another document which I'd ask Mr Hodges to identify, your Honour won't have a copy of this one, so I'll hand one up.
PN358
Mr Hodges, is that a decision of the Victorian Building Industry Disputes Board dated 1 April 2004 number 51 of 2004?---Yes, it is.
PN359
Was that received by the MBA from the Disputes Board?---Yes it was.
I tender that.
EXHIBIT #CDK8 DECISION OF VICTORIAN BUILDING INDUSTRY DISPUTES BOARD DATED 01/04/2004
PN361
MR LANGE: Mr Hodges, can I take you to your statement please paragraph 14 of your statement. At the bottom of the page on which paragraph 14 is the last entry there is a reference to Victorian Building Industry agreement which is annexed to your statement. Have you, in your experience, what is the currency of the Victorian Building Industry agreement in terms of a determiner of industrial conditions in the construction industry?---My understanding is it's no longer in operation. It certainly is one that's not one of the standard 2005-2008 building industry agreement. And I believe it's prohibited under the international code of practice and guidelines.
PN362
You mentioned the 2005-2008 building agreement, can you just expand for his Honour on what that document is?---It's essentially a pattern type of agreement negotiated between building industry parties, the CFMEU being one such party on terms and conditions of employment.
PN363
Right so, I don't think this is controversial your Honour, so I may lead slightly with this particular question. Pattern agreement is effectively a separate terms and conditions to which somebody in the building construction industry might be able to expect the CFMEU would agree to being part of a pre-reform certified agreement although of course, there is no more of those to be had at the moment, is that correct?---Yes.
**** DANIEL HODGES XN MR LANGE
PN364
You say the 2005 2008 agreement, have you examined the CDK enterprise agreement?---I have.
PN365
How does that compare with the 2005-2008 pattern agreement?---It appears to be identical in terms.
PN366
Prior to the 2005 2008 pattern agreement being in existence, was there a different pattern agreement in existence?---Yes, there was there was a 2002 to 2005 agreement.
PN367
Was site allowances dealt with in that?---They were. I believe there was an appendix and also there was a reference to the VBIA that the VBIA was read into that particular EBA and the VBIA did have a site allowance procedure in it.
PN368
Okay, just with reference to annexure DH2 to your statement, is that the part of the VBIA which relevantly dealt with site allowances in the period of that previous generation, if I can call it that, pattern agreement 2002 to 2005?---Yes, that' my understanding.
PN369
All right thank you. It is going to be suggested in due course in this matter that the value of the development at Caroline Springs town centre, is a value of $155m. I might provide a copy of one of the exhibits to Mr Reardon's statement and ask that Mr Hodges comment on that. I only ask that it be marked for identification for that purpose. For your Honour's benefit this is SR6. Can that be MFI 2, your Honour?
PN370
THE DEPUTY PRESIDENT: I don't know that there's any necessity to mark it in the circumstances, is there Mr Lange?
PN371
MR LANGE: Perhaps not your Honour.
PN372
THE DEPUTY PRESIDENT: It is going to be tendered as part of Mr Reardon's statement.
PN373
MR LANGE: Yes. You will see in the first paragraph of that media release, the words:
PN374
A model of the planned $155m Caroline Springs town centre will be unveiled this week revealing the plans for a bustling community hub.
**** DANIEL HODGES XN MR LANGE
PN375
Can you indicate to me from reading that and I will ask you to cast your eye over the rest of the release as well before you answer, can you indicate to me what components might be included in that figure of $155m or rather what it might be interpreted to include from your knowledge in the industry?---From my knowledge and looking at this press release, or the exhibit, I mean certainly it appears that the $155m includes everything, so commercial, retail, education, recreation, residential, a lake, everything.
PN376
So what sort of costs might be included? What sort of components of significant costs might there be found in that $155m figure?---In relation to?
PN377
In relation to Caroline Springs town centre?---Well I would imagine that the costs as far as infrastructure roads, and so forth residential housing, water that goes into the lake, presumably as well as the commercial buildings and the like.
PN378
Would you be able to look at that figure and determine which amounts or how much of the $155m figure would be allocated to each of those components, without further information?---No, not at all.
PN379
I will take you to the last paragraph in your statement please. You say there that the agreement referred to by the chairman in the Disputes Panel decision which is under review here was an agreement only as to the geographic boundaries of the area to be developed. Just with particular reference to that point, were there any comments made at the time for final hearing as which could be construed as agreement on behalf of CDK about what constitutes a project as opposed to a development?---No, as I recall there was argument as to what the project was and certainly the only thing that was agreed was that there was a geographic area and there was a map produced I believe by the CFMEU in that hearing. It was agreed that those, the parameters of the town centre were as set out in the map. There was certainly no agreement as to, with regard to a project.
PN380
All right you sorry, the decision under review also refers to earlier exhaustive debate and previous decisions of the former disputes board during the course of 2004?---Yes.
PN381
Are those decision annexed, the decisions annexed to your affidavit at DH1?
---Yes.
PN382
Was CDK to your knowledge working on the project in 2004?---No. They were not.
**** DANIEL HODGES XN MR LANGE
PN383
Were you threatened at any of the hearings before the Disputes Board in 2004, which led to those decisions?---I was, yes.
PN384
Who were you representing?---I was representing Cain and Pritchard.
PN385
Sorry is that Cain Constructions?---Cain Constructions and Pritchard.
PN386
Pritchard Pty Ltd?---Yes, that's correct.
PN387
They are already referred to in your statement. Was CDK present, or did it have a representative present in 2004?---No, absolutely not.
PN388
Are you aware of whether there was any involvement by CDK in either those decisions, or Caroline Springs town centre project in 2004?---No, to my knowledge there was not.
PN389
You referred earlier to pattern agreements and to VBIA's role in site allowance during the currency of that 2002 2005 agreement. These decisions in 2004 that you've referred to would they be decisions which would be applying the terms of the VBIA pursuant to a pattern agreement.
PN390
Your Honour, I'm conscious that we don't want to spend time on matters which may or may not be relevant, and in light of that consideration, I've got no further questions at this stage.
PN391
THE DEPUTY PRESIDENT: Thanks Mr Lange. Mr O'Grady have you got any questions for Mr Hodges?
PN392
MR O'GRADY: No, I don't thank you your Honour.
PN393
THE DEPUTY PRESIDENT: Go ahead.
PN394
MS WALTERS: If your Honour, pleases given that the time that we find ourselves in at this point in time, and indeed.
PN395
THE DEPUTY PRESIDENT: It might be a good time to adjourn for lunch, if that's what you are going to suggest?
PN396
MS WALTERS: Yes.
**** DANIEL HODGES XN MR LANGE
PN397
THE DEPUTY PRESIDENT: We should do that. Mr Hodges don't discuss your evidence with anybody during the adjournment. Can I just ask before we do adjourn, the issue of a site visit was raised previously, I must admit that based on what's been said to me so far, and what I've seen I don't see too much merit in that, but I might be wrong. Can I suggest that the parties have some discussion about that during the luncheon adjournment? That is if you do intend to re-raise the matter and see if they can come to any agreed position in relation to that. I will adjourn until 1.45 pm
<LUNCHEON ADJOURNMENT [12.22PM]
<RESUMED [1.48PM]
THE DEPUTY PRESIDENT: Ms Walters?
<CROSS-EXAMINATION BY MS WALTERS [1.48PM]
PN399
MS WALTERS: Mr Hodges, you've got a copy of your witness statement before you?---Yes, I do.
PN400
Mr Hodges can I take you to paragraph 6 of that statement?---Yes.
PN401
Half way down that paragraph where you say at no time during site inspections, you don't concede that all projects being undertaken
within Caroline Springs development area could be regarded as one project, et cetera, contrary to paragraph 8 of Mr Reardon's statement.
That's correct, that's your evidence?
---Yes.
PN402
For the purposes your Honour for identification, we will seek to tender Mr Reardon's statement, I seek to at this opportunity hand up to Mr Hodges a copy of Mr Reardon's statement for cross-examination.
PN403
THE DEPUTY PRESIDENT: That's fine.
PN404
MS WALTERS: Bear with me I just want to make sure it is not a marked copy?
---This is got some.
PN405
It is?---Yes.
PN406
I seek the Commission's indulgence. It appears I don't have a copy, an unmarked copy of the statement of Mr Reardon.
**** DANIEL HODGES XXN MS WALTERS
PN407
THE DEPUTY PRESIDENT: Mr Lange might be able to help you out.
PN408
MR LANGE: Bear with me.
PN409
THE DEPUTY PRESIDENT: Yes. I thought the ABC was going to help you out there Ms Walters, but apparently they don't have a copy.
PN410
MR O'GRADY: My gesture was the fact that I actually have two copies, both of which have markings all over them, your Honour, but my instructor is checking her copy.
PN411
MR LANGE: Unfortunately, I don't have an unmarked copy, your Honour.
PN412
THE DEPUTY PRESIDENT: Is the marking that's on the copy that you gave
Mr Hodges of significance?
PN413
MS WALTERS: No, we do have a copy that's simply been highlighted, it's not significant in relation to what I seek to cross-examine Mr Hodges on.
PN414
THE DEPUTY PRESIDENT: If that's the case, if you do show Mr Lange, I don't think there's any issue with it.
PN415
MR O'GRADY: Your Honour I have uncovered an unmarked copy of the statement but without attachments, if the CFMEU is happy to accept it.
PN416
MS WALTERS: Your Honour if you could bear with me two seconds.
PN417
THE DEPUTY PRESIDENT: Yes.
PN418
MS WALTERS: With respect if we could.
PN419
THE DEPUTY PRESIDENT: Yes, that's without the attachments.
PN420
MS WALTERS: Yes. The cross-examination at this point, we won't be seeking to refer to any of the attachments.
PN421
THE DEPUTY PRESIDENT: All right that's fine. Thanks Mr O'Grady.
PN422
MS WALTERS: Mr Hodges, you say in paragraph 6 that you made no concessions in relation to the Caroline Springs I think you used the term, development area?---Yes.
**** DANIEL HODGES XXN MS WALTERS
PN423
At paragraph 8 of Mr Reardon's statement you will see he makes – and this is paragraph 8 half way through - - -
PN424
THE DEPUTY PRESIDENT: The second page of paragraph 8?
PN425
MS WALTERS: Yes, and in fact it commences on the first page it says:
PN426
During the conclusion of our discussions at the site, Hodges said to Knight and Davis and myself words to the effect of, look Sean I can understand your argument that it is all part of one project, but it's not all retail.
PN427
Now you don't deny that you used words to those effects, did you, or did you not say words to the effect of "Look Sean I understand your argument this is all part of one project, but it's not retail" before Knight and Davis, they are the members of the Disputes Panel?---No I don't believe I did.
PN428
You don't believe you did or you didn't?---Well this is two years ago, but certainly I do not believe I did.
PN429
You don't believe you did, you can't recall?---I can't recall every conversation, but I don't recall anything that – having said anything that could have been construed as what's been put as part of Mr Reardon.
PN430
THE DEPUTY PRESIDENT: Are you saying you could have said it, but you don't recall, or are you saying that you didn't say it?---I don't believe I said it.
PN431
MS WALTERS: So you could have said it?---No, I don't believe I could have said it.
PN432
So you didn't say it?---As far as I can be certain without having a photographic memory, or recalling everything I've ever said, I do not believe I have ever said words to that effect to Mr Reardon.
PN433
Mr Hodges, the statement is quite clear and it's put quite specifically it's not in relation to that you may have at some point in time, made this statement. You were Mr Hodges at the site inspection?---I was at the site inspection. I would have - - -
PN434
Mr Hodges did you represent Cain Constructions Pty Ltd, Pritchard Constructions Pty Ltd?---That's correct.
**** DANIEL HODGES XXN MS WALTERS
PN435
Were you employed by the MBAV to do so?---That's correct.
PN436
Again I repeat, did you, or did you not make that statement?
PN437
MR LANGE: Your Honour, the question has been asked and answered.
PN438
THE DEPUTY PRESIDENT: Yes, it has but I must admit I'm still a little bit unclear what the answer is myself. It really seems to me to be only three answers Mr Hodges, either you didn't, or you did, or you don't know.
PN439
MR LANGE: To the best of his knowledge, did he or didn't he, I would submit?
---To the best of my knowledge I didn't.
PN440
MS WALTERS: It is for the witness to answer?---To the best of my knowledge I didn't.
PN441
THE DEPUTY PRESIDENT: Right thank you.
PN442
MS WALTERS: Mr Hodges, can I take you to paragraph 8 of your witness statement?---Yes.
PN443
In that paragraph Mr Hodges you deal with an exhibit of three decisions of the then Disputes Board, that's correct?---That's correct.
PN444
You refer to one of those decisions that be 75B. Have you got a copy of your exhibits there?---Yes, I do.
PN445
I take you to 75B the decision of the Disputes Board?---Yes.
PN446
Dated Thursday 27 May. In your statement you say that this decision was a decision claimed for a single project which you directly quote - - -
PN447
MR LANGE: Might I object at this point, your Honour. I've let this go on for sometime, this strays exactly into the territory which we say is not relevant and we do object on that basis.
PN448
THE DEPUTY PRESIDENT: So let me be clear about what specifically you say is not relevant. Any reference to the Disputes Board rulings in respect of those matters, is that the substance of it Mr Lange?
**** DANIEL HODGES XXN MS WALTERS
PN449
MR LANGE: Slightly wider than that your Honour.
PN450
THE DEPUTY PRESIDENT: You tell me what it is.
PN451
MR LANGE: The material which has been put as rebuttal evidence to the matters raised in Mr Reardon's statement at paragraphs 3 to 13 and that includes quite specifically the actions of Cain Constructions Pritchard in respect of their enterprise agreements in 2004. If the objection fails, and we will certainly deal with those matters. I stress that the material that has been put in those paragraphs are in respect of which questions are now being asked, we say, that the answers which might be elicited here are irrelevant.
PN452
THE DEPUTY PRESIDENT: Yes, I must admit at this point in time, I'm not entirely clear whether they are relevant or not Mr Lange, so my inclination is to allow the material to go in at this point in time and - - -
PN453
MR LANGE: Voir dire as it were, your Honour.
PN454
THE DEPUTY PRESIDENT: Sorry?
PN455
MR LANGE: Voir dire as it were.
PN456
THE DEPUTY PRESIDENT: Yes.
PN457
MR LANGE: I understand that.
PN458
THE DEPUTY PRESIDENT: And it may be - - -
PN459
MR LANGE: We wouldn't press for a ruling on the admissibility of it until we perhaps come to Mr Reardon on the basis that the matter is now being dealt with in cross-examination, we fall away if that should succeed.
PN460
THE DEPUTY PRESIDENT: Yes, all right.
PN461
MR LANGE: Yes thank you, your Honour.
PN462
THE DEPUTY PRESIDENT: Go then Ms Walters.
PN463
MS WALTERS: Your Honour, in relation to what's just been put and what's been raised in relation to voir dire we should have been put on notice that some time ago when the matter was put to the Commission, quite simply we are in cross-examination, this material has been let, and we are cross-examining on it. In relation to admissibility, relevance et cetera, we say it's not open to Mr Lange to make that submission at this point given that the evidence has been led in chief.
**** DANIEL HODGES XXN MS WALTERS
PN464
THE DEPUTY PRESIDENT: With respect Ms Walters, Mr Lange raised the issue at the outset of proceedings in respect of Mr Reardon's evidence along with some other issues that were raised and I still in my view, it's open to Mr Lange to re-agitate that matter at the appropriate point in time. If it is considered at that point in time, that it is objected to by Mr Lange that the relevant evidence of Mr Reardon – I should rephrase that.
PN465
The particular evidence of Mr Reardon is not relevant, then the evidence in respect of these matters given by Mr Hodges, would in any event fall away as being relevant.
PN466
MR LANGE: Yes, it's my understanding and it's on that basis that I – perhaps I should make this clear. I withdraw the objection as it stands now on the basis that what's being asked could fall away as your Honour described.
PN467
MR O'GRADY: Your Honour, for what it's worth the objection to Mr Reardon's material is one that we notified the CFMEU of in our reply submission yesterday, and we will be putting that objection when Mr Reardon is in the witness box.
PN468
THE DEPUTY PRESIDENT: Yes, thank you. Go ahead Ms Walters.
PN469
MS WALTERS: Thank you, your Honour.
PN470
Mr Hodges, I think you were at decision 75B of the Victorian Building Industry Disputes Board, which you refer to in paragraph 8 of your statement?---Yes.
PN471
You say in it, you directly quote that decision and you end that quote, and then say, "it will only apply to future projects",
this is your evidence-in-chief, correct?
---Yes.
PN472
Can you read – can I take you to 75B and I take you to where it says simply put, and it says:
PN473
Simply put this means that the current site allowance being paid on all works presently underway.
PN474
Works, is that correct, it uses the terms works, both in the decision and in the quote of the previous decision, is that correct?---With regards to Pritchard and Cain Constructions, yes.
**** DANIEL HODGES XXN MS WALTERS
PN475
It doesn't say 75B doesn't refer to the work projects, Mr Hodges, does it?---Not that sentence you've read out, no.
PN476
No, just while we have you with that exhibit. Mr Hodges, I take you to the header in fact, where it says decision?---Yes.
PN477
Pritchard Cain Constructions and all other involved parties. Who are those parties?---As far as I'm aware when the matter was initially raised as a shopping centre allowance, Bovis Lend Lease who were doing work on that shopping centre allowance were involved, so I presume that it would refer to them.
PN478
Bovis Lend Lease, all right okay. On that point again Mr Hodges, there is a reason why the Disputes Board handed down that decision, correct?---Yes, that's correct. After the initial decision there was some confusion over whether or not Cain, I heard from a representative from Cain Constructions that Mr Reardon was advising that the decision meant that they were required to pay a higher site allowance, that was not my understanding of what the decision said, so we asked for clarification from the then Disputes Board.
PN479
And that decision was made on the basis that Kane Constructions and Pritchard Constructions Pty Ltd had already tendered?---They were currently - well, they were in the process of building their respective projects, so yes, it was a clarification that the decision of the board did not apply to them on those projects.
PN480
So you agree then, Mr Hodges, that future works deals with future construction on the project, correct?---Which, what project?
PN481
Well, 75(b), where it says to clarify this issue, and then it goes, future works originally. It says future works in the first decision and then refers to works presently under way dealing with works on the project. So in fact what, the decision is clarified, and you sought that clarification, and was contemplating future works on the project, correct?---Well, I didn't make the decision.
PN482
Mr Hodges, what does works mean, future works?---I would presume it meant that future works, the - as the board states, they didn't - that they would accept a union claim for a single project on future works.
PN483
That's not what it says, Mr Hodges?---On all future works. Sorry?
**** DANIEL HODGES XXN MS WALTERS
PN484
That's not what it says, Mr Hodges?---I'm just reading from the 75(a) and then the clarification of what that meant was that Kane and Pritchards who had been purportedly advised that it covered them were not actually covered by that decision.
PN485
But I take you back a step where it says "The board fails to agree," et cetera, "based on the evidence finds that the union's claim for a single project should be recognised on all future works." I put to you that future works is dealing with the concept of and, in fact, directly with future work on the project?---Well, I'd presume that that was - - -
PN486
You presume? This is in the past, you've acted on it?---Mm.
PN487
This decision has been around since 2004. You're not presuming anything, Mr Hodges?---Well, a decision was made that didn't affect the two companies I was representing.
PN488
At that time?---At that time. And that was when my involvement in it ceased.
PN489
That's when your involvement in the matter ceased?---I was asked or engaged by Kane Constructions and Pritchard to represent them in regard to a site allowance claim. We got a decision stating that they were not affected by that decision, and that was the end of it.
PN490
Right. You do accept that there was - prior to you seeking clarification there's a decision which states that the single project should be recognised on all future works, correct?---Well, it says - that's what it says, yes.
PN491
All future works on the project?---Should be recognised, yes.
PN492
Okay, thank you for that, Mr Hodges. Mr Hodges, can I take you to paragraph 10 of your witness statement, and you refer to paragraph 15 of Mr Reardon's statement, correct?---Yes, I do.
PN493
And you refer to the seven companies or builders, I think you used the term, that Mr Reardon refers to in paragraph 15, don't you?---Yes.
PN494
Yes, you do, okay. And you say that in relation to the payment of a site allowance by those builders in accordance with their certified agreement, you then say you assume that each of these builders named as a party to a pattern enterprise agreement, correct?---Mm.
**** DANIEL HODGES XXN MS WALTERS
PN495
Right. Mr Hodges, Behmer and Wright is a company named at 3 that have been engaged to build on the project, are they a member of the MBAV?---I don't believe so, no.
PN496
Behmer and Wright are not a member of the Master Builders Association?
---That's my understanding, that they're not a member, that's correct.
PN497
They are not a member of the Master Builders Association?---Yes, that's my understanding.
PN498
And Dura Constructions?---I believe Dura are.
PN499
Dura Constructions are a member of the MBAV?---I believe so.
PN500
Right. And the MBAV in their role in representing builders has any involvement and negotiation and certification of an enterprise agreement on their members' behalf?---If we're requested to act on their behalf, yes.
PN501
And, Mr Hodges, did the MBAV prepare and lodge the Dura certified agreement?---I don't know off the top of my head.
PN502
You don't know. But you'd agree, Mr Hodges, that it's reasonable to assume in the circumstances that you did?---Well, if they're a member of ours then I would hope that they went through us to have their agreement certified, but often they will go through the CFMEU.
PN503
So as a matter of course if a builder is a member of the MBAV you would take carriage of that process, represent them in negotiations and in preparation for certification?---Generally.
PN504
MR LANGE: I'm sorry, is that a view of the MBAV or is that a view of Mr Hodges? Can the question be clarified please?
PN505
MS WALTERS: Well, we'll split the two. In the first instance would you as a matter of course be involved in the negotiation of that certified agreement on behalf of the member?---Back at this time?
PN506
Now?---Well, if it was to occur now then quite possibly, yes.
**** DANIEL HODGES XXN MS WALTERS
PN507
Quite possibly?---Yes.
PN508
So as a matter of course you would?---If it was to occur now, yes, but a couple of years ago, no.
PN509
Right. And as a matter of course though, the second part of that question was, you agree as a matter of course the MBAV, if there is a - if MBAV has a member that the MBAV would be instructed to deal with the negotiation and certification of agreement?---As I said, I would hope that's the case, and often it is, but not always.
PN510
And did the MBAV act on Dura's behalf and negotiate the Dura/CFMEU enterprise agreement?---As I said, I don't know the answer to that question.
PN511
You don't know. Mr Hodges, you also list Mr Reardon at paragraph 15 says that Eric Leech is a builder that's been engaged in the project?---Mm.
PN512
Is Eric Leech Constructions a member of the MBA?---Yes, they are.
PN513
Is Devco Constructions a member of the MBA?---I believe do. I'm not certain but I believe so.
PN514
Is Exclusive Homes a member of the MBA?---It doesn't ring a bell, I don't know.
PN515
You don't know?---No, I don't have a working knowledge of every member that we have.
PN516
If I can take you back to paragraph 10 of your statement, Mr Hodges?---Yes.
PN517
You indicate in the last paragraph a likely situation and this is a position in accordance with advice that the MBA would have provided to those builders if it had been sought?---Mm.
PN518
I put it to you if members of the MBA have been engaged to build on the Caroline Springs town centre project and it was put to them that they were required to pay a site allowance under their certified agreement, that they would seek advice from the MBA in relation to that?---Well, I would hope they would, but I don't believe in this case that the companies that have been named did.
**** DANIEL HODGES XXN MS WALTERS
PN519
So you are saying that you don't believe that Exclusive Homes, Devco, Dura and Eric Leech sought advice from the MBA whether or not they were required to pay a site allowance in accordance with their certified agreement with the CFMEU when that claim was put to them?---Not that I'm aware of, no.
PN520
Not that you're aware of?---Well, I'm not the only industrial adviser at the Master Builders.
PN521
How many advisers are there, Mr Hodges?---Currently there are two other advisers, there's a manager and some admin support.
PN522
And did they provide advice or was it likely that they would have provided advice?---I do not know. I would imagine I would have heard about it if they had.
PN523
So what you're saying is - - -
PN524
MR LANGE: Your Honour, I've let this go on for some time as well, but my friend is now asking Mr Hodges to speculate on matters which he's said are not within his direct knowledge. The union has named the particular people in paragraph 15 of Mr Urry's statement. If my friend is now going to rely on the actions of those particular builders then it should have provided evidence from those builders as to exactly what they did. Mr Hodges' evidence has been given in response to what is contained in the statement, and frankly there's no more to be said about the matter. So what we say is, this line of questioning involves asking Mr Hodges to speculate on matters, and in any case we are not on notice in any way that the case that he put, or the CFMEU, is that those builders are members of the MBAV, paid a particular site allowance as opposed to a site allowance in accordance with their certified agreements.
PN525
THE DEPUTY PRESIDENT: I don't think it takes us anywhere anyway, Ms Walters.
PN526
MS WALTERS: Thank you, your Honour.
PN527
Lastly, Mr Hodges, we take you to paragraph 15 of your statement. Now, at paragraph 15 you refer specifically to decision 74 of 2006?---Yes.
PN528
And I'm not sure if that was exhibited to your statement, so I'll get a copy of that. Just bear with me while I get you a copy of it. If I can hand that up to the witness. Your Honour, for your benefit, you do have a copy of decision 74/2006. I understand that it was annexed to the actual original application of the MBAV. It is the decision that brought us here.
**** DANIEL HODGES XXN MS WALTERS
PN529
THE DEPUTY PRESIDENT: Right. Yes, I have it thanks, Ms Walters.
PN530
MS WALTERS: Paragraph 15, Mr Hodges?---Yes.
PN531
You quote the chairman's decision?---Yes, an excerpt from it, yes.
PN532
Yes. And you indicate you were in attendance at the final hearing?---Mm.
PN533
And your evidence is that there was no agreement, is that correct?---My evidence is that there was - the agreement was based on a map that was provided and there was agreement as to that that geographic area was known as the Caroline Springs Town Centre in accordance with the map, but there was no agreement that that somehow constituted a project.
PN534
So, Mr Hodges, you deny that at the panel hearing you, on behalf of CDK, agreed on sitting the - at the final hearing that the claim for the project site allowance at the Caroline Springs Town Centre project, you agreed what that project was, did you not?---I didn't agree to that. We agree that the area on the map that was provided was the town centre, the Caroline Springs Town Centre. We never made any agreement, and you were there, never made any agreement that it constituted a project. In fact that was what the issue to be resolved was, what was the project?
PN535
Yes, that certainly what was being discussed. But this was the final hearing, Mr Hodges, if you cast your mind back?---Mm.
PN536
And I put it to you that you did agree on behalf of CDK that the claim for the project was the Caroline Springs Town Centre project, and indicated that you agreed that was the boundary of the project, that it was not called Caroline Springs in toto, it was for a specific area, and you agreed?---No. As I said, the issue was the Caroline Springs Town Centre, and there was a map that said Caroline Springs Town Centre and was shaded in different colours depending on whether it was commercial or retail or potential residential, or whatever, and that was what was agreed to. It was never agreed to that there was an agreement as far as there was an overall project. That's simply not the case.
PN537
Mr Hodges, do you deny that the chairman at that final hearing quite clearly put it to you directly that, and seeking confirmation that you did agree that the claim was not for Caroline Springs but for the town centre project area and this was the circumference, this is the boundary of the area, and that in fact the chairman put it to you, therefore you agree for example if there are works outside that it won't be claimed, do you deny that?
**** DANIEL HODGES XXN MS WALTERS
PN538
MR LANGE: Perhaps, your Honour, questions leading up to this have been about whether there was agreement as to the boundaries of a particular area. Ms Walters is now asking a question about whether the MBAV agreed at the hearing that that was the claim being made. And I think if that's the question that's being asked then perhaps it could be put clearly. I don't think it's been put in a fair manner.
PN539
THE DEPUTY PRESIDENT: You might rephrase the question please, Ms Walters.
PN540
MS WALTERS: Certainly. You say there was no agreement as to the boundaries, content or any project conducted, I put it to you, that the chairman directed to you with the map in front of you and said words to the effect of, we have disputed the claim for the project site allowance and you've disputed that this is the boundary of that claim. And the chairman specifically directed the question at you, did he not, is there agreement that this is the said boundary?---What I said and what I understood was being asked was - there was a question as far as Caroline Springs, Caroline Springs Town Centre, Caroline Springs Town Centre project and so on and so forth. The issue that there was agreement on was that there was an area within the suburb of Caroline Springs which was known as the Caroline Springs Town Centre. That's where there was agreement. There was a map to that effect. There was never any agreement as far as that there was a project. Now, as I understood the union's position they were claiming that there was an overall project, and we believe that there wasn't, and the project that CDK was involved in was the construction of a swim centre, and that's my understanding of what transpired at the hearing.
PN541
Then based on what you've said it's not true to - and I quote from your statement - say that there was no agreement as to the boundaries or contact - - -
PN542
MR LANGE: Excuse me. I think that question is put quite unfairly to Mr Hodges. The statement which is included is the last sentence. It reads:
PN543
There was no agreement as to the boundaries or content of any project conducted within the development boundaries.
PN544
Now, those words are very important. Without them the sentence doesn't make sense. With a full quote of the sentence, as we suggest ought to be put, if the question is to be pressed, that's fine. But if Ms Walters is going to put a question which only half quotes the evidence which is given by Mr Hodges, I think that's unfair and should not be allowed.
**** DANIEL HODGES XXN MS WALTERS
PN545
THE DEPUTY PRESIDENT: Yes, I agree.
PN546
MS WALTERS: If your Honour pleases, there are no further questions of the witness.
THE DEPUTY PRESIDENT: Thank you. Re-examination?
<RE-EXAMINATION BY MR LANGE [2.27PM]
PN548
MR LANGE: Mr Hodges, you were taken to decision 75(b) I think it is of the Victorian Building Industry Disputes Board, and the particular words in the heading say "all other involved parties." You were asked who were those other involved parties, and I understood that you ..... at least by virtue of the fact that they had been involved in the shopping centre claim which was discussed?---Yes.
PN549
Do you know of any other involved parties?---No. To my knowledge they were the only other ones.
PN550
Thank you. Nothing further.
THE DEPUTY PRESIDENT: Thank you. Thanks, Mr Hodges, you can sit down. Thanks for your evidence.
<THE WITNESS WITHDREW [2.28PM]
PN552
THE DEPUTY PRESIDENT: That's the witness evidence on behalf - - -
PN553
MR LANGE: That is the witness evidence of CDK. Your Honour, could I ask for a five minute adjournment?
PN554
THE DEPUTY PRESIDENT: Sure. And you're in a position then to lead your evidence, Ms Walters, after that adjournment?
PN555
MS WALTERS: Yes, your Honour.
PN556
THE DEPUTY PRESIDENT: Yes. Well, I'll adjourn for five minutes.
<SHORT ADJOURNMENT [2.29PM]
<RESUMED [2.42PM]
PN557
THE DEPUTY PRESIDENT: Before Mr Reardon takes the stand perhaps we should deal with this relevance point. Can I just put something to the parties in respect of it first of all. One of the questions I mentioned before as being relevant to the Commission's determination here is, or was, what is the project which comprises the work of CDK Constructions at Caroline Springs, or something to that effect? It seems to me that to the extent that there is material before me that goes to that question, and that is relevant material, and it seems to me that to the extent that the material in respect of Kane and Pritchard went towards determining that question, it also is relevant material.
PN558
And I take you to the particular aspect of it, and I just do this to get the response of the parties. If I take you to the attachment to Mr Hodges' statement of 75(a) 2004, my understanding is that's in respect of the Kane and Pritchard matter, the decision of the board. That's correct, is it not?
PN559
MR LANGE: Yes, your Honour.
PN560
THE DEPUTY PRESIDENT: Yes. As I understand the submissions that may be made - and if I'm wrong don't correct me at this point, you can correct me a bit later - you're saying that Kane and Pritchard essentially is not relevant to the determination that the Commission has to make in this matter. Although it appears to me in here, in this particular matter, there is some material that was before the disputes panel which ultimately the disputes panel didn't accept, but leave that aside. There was material before the disputes panel from Delfin themselves that went towards the very question I alluded to earlier.
PN561
MR LANGE: Yes, your Honour.
PN562
THE DEPUTY PRESIDENT: Now, to take one sentence of that, and if I can take some material that's quoted in the decision of Mr Donnelly dated 19 May, he quotes the Delfin representative as saying:
PN563
Further, as future projects depend entirely upon commercial decisions made by separate entities it's impossible for anybody, be it Delfin or the disputes board, to predict what the value of construction in the town centre may be.
PN564
So it seems to me for example that we have somebody from Delfin saying that there is an indefinite set of circumstances as to what comprises the project, if there is a project. Are you saying that none of that material should be taken into account by the Commission?
PN565
MR LANGE: What I would say about that particular sentence your Honour has referred to is that it is referring to future projects as separate projects, and it is saying we, Delfin, have been asked what would be the value of all the construction in the town centre developed - - -
PN566
THE DEPUTY PRESIDENT: And he appears to be saying, I can't tell you because things that we say are in might not end up being in because that's a matter of a totally separate decision made by some other party at some other point in time. That appears to be the evidence given by Delfin.
PN567
MR LANGE: Yes, that's correct.
PN568
THE DEPUTY PRESIDENT: Which appears on its face to have been rejected by the disputes panel.
PN569
MR LANGE: Yes.
PN570
THE DEPUTY PRESIDENT: Now, I raise it at this point in time because it seems to me to be relevant to the question of what the project is that comprises the work being done by CDK. But you appear to be saying to me - well, I'm asking you are you saying to me that because that is a matter that is, or material rather that comes from a totally different matter, that it is irrelevant to the proceedings before me and that I should have no regard to it.
PN571
MR LANGE: Your Honour, what we say about it is this. That particular material from Delfin does not go to the question of what the project for the purposes of this enterprise bargaining agreement is. What it does go to is the ability to accurately calculate it. That's the second question of your Honour today. So in that sense it is relevant. Now, as to what the word project means and what the parties to an agreement intended the word project to mean, whatever may have happened with Kane and Pritchard and whatever it is they may have accepted or not accepted, the statement of Daniel Hodges goes to that, that is what is irrelevant to your Honour's consideration.
PN572
THE DEPUTY PRESIDENT: Yes, but they're all matters for determination, or submission and determination ultimately. I mean, it may be that Delfin has a view as to what a project is, and it may be that Delfin has put that view at some point in time as to what a project is. That doesn't mean that it's a project for the purpose of the agreement between CDK Constructions and the CFMEU simply because that's the label the Delfin attached to it. So I'm not pursuing this because of that. I simply don't want to be in a position of ignoring material that might in fact be relevant to the determinations that the Commission has to make.
PN573
MR LANGE: We say the only utility, your Honour, in that material is that it discloses the position of Delfin as to what the commercial considerations are in projecting a value of construction within that development area and what its connection is with future commercial construction, which appears to be nil. Now, it may be the developer, and that's the end of the story. For that purpose only it is relevant and it is relevant to the calculation of what the project value is if your Honour were to determine that the word project in appendix C ..... means something other than the meaning for which we contend.
PN574
THE DEPUTY PRESIDENT: Yes. And I well may, I don't know yet.
PN575
MR LANGE: Yes. But to the extent that there is a meaning to be attributed to the word project, the evidence in relation to how Kane and Pritchard chose to deal with this matter is utterly irrelevant in its entirety.
PN576
THE DEPUTY PRESIDENT: Well, you've just said to me that some of that material may be relevant.
PN577
MR LANGE: No, your Honour. That material doesn't go to the calculation of the project value. That material goes to what - - -
PN578
THE DEPUTY PRESIDENT: Yes, but it does if I don't accept the definition that you have given to me of project. So the material there then may have relevance, may it not?
PN579
MR LANGE: I'm sorry, go on.
PN580
THE DEPUTY PRESIDENT: No, you're right.
PN581
MR LANGE: I meant to say there's nothing in the way in which Kane and Pritchard have dealt with the matters which gives any particular value to any part of the project. Now, it may be that that's for exactly the reasons that the Delfin representative put. But certainly if your Honour doesn't accept the meaning that we attribute to the word project, the next task is to determine what is the value of some other project, whatever it might be, and to determine what is a part of that project.
PN582
Nothing in the evidence of Mr Reardon as to what Kane and Pritchard and other builders have done assists in placing a value. That would be the simple submission that we would make. We do press the objection of the material of Mr Reardon, and for the bases, if I can just point out - - -
PN583
THE DEPUTY PRESIDENT: So your objection to Mr Reardon's material is the entirety of the paragraphs 3 through to 10, is that correct?
PN584
MR LANGE: Thirteen.
PN585
THE DEPUTY PRESIDENT: Thirteen is it?
PN586
MR LANGE: Yes. And the basis of those objections lies in paragraphs 15 and 16. I refer to the applicant's submissions in reply, 15 and 16.
PN587
THE DEPUTY PRESIDENT: But you make no objection for example to paragraph 15?
PN588
MR LANGE: Sorry, your Honour, 15 is the subject of objection, my apologies.
PN589
THE DEPUTY PRESIDENT: You see, it would seem to me that the content of paragraph 15 is clearly not relevant. I don't really care whether the other companies paid site allowance or whether they didn't. It's of no help to me in coming to a determination whatsoever. However, it seems to me that there is material within the context of the Kane and Pritchard matter which may be of assistance to me. It might not, but I'm not inclined on the basis of what's been put to me so far to determine it as irrelevant at this point in time, so my inclination, subject to what Mr O'Grady wants to say to me about it, is to allow it to remain.
PN590
MR LANGE: Yes. Well, I understand that, your Honour, if that's the position which your Honour takes.
PN591
THE DEPUTY PRESIDENT: Yes. Mr O'Grady?
PN592
MR O'GRADY: If your Honour pleases. Mr Lange has dealt with the relevance objection, and your Honour essentially ruled on that. I don't think there's much that I can add to that debate.
PN593
THE DEPUTY PRESIDENT: Well, I said subject to what you have to say. You might change my mind, Mr O'Grady.
PN594
MR O'GRADY: The starting point of our objections is really at paragraphs 3 - well, our objection covers paragraphs 3 to 15. The essence of the objection is really twofold. One is the ground of relevance. We've heard what your Honour has to say. We would say that for the very reason that your Honour accepts that the reference to the 10 other companies, or however many other companies have paid a site allowance since, applies to any matter that settles a dispute or deals with a dispute between Kane and Pritchard and the CFMEU under its agreements in relation to different constructions, whether that has any relevance. We say not.
PN595
There might be something in the decisions of the disputes panel from which you can salvage some material which might be relevant. We would say not. Anything that is before you today which is attributed to Delfin ought not be admitted into evidence because it's hearsay. Now, in the normal hearsay objection in this Commission one might say, well, yes, I understand what you say, Mr O'Grady, it's evidence of what was said, and it might not be evidence of the truth of what was said. What we have here is the key element. The key underpinning element to the whole of the CFMEU claim is that there is a project and it's worth $155m and that's because Delfin says it is, and it's in the press release. How can we test that? No one from Delfin is here. It cannot possibly be tested. It's not evidence of the truth of the fact that there is a project or that the project is worth $155m.
PN596
THE DEPUTY PRESIDENT: Well, equally you could argue on the basis of the quote that I just took you to, Mr O'Grady, that Delfin have given a contrary view to what the value of the project, if there is one, is in the material that was quoted in front of the disputes panel.
PN597
MR O'GRADY: Very much so, your Honour. And where that leads you is, knowing absolutely nothing.
PN598
THE DEPUTY PRESIDENT: And I would be inclined to agree with everything you're saying if we accept up front, as I don't believe I have as yet, although the submissions have been put to me, that this is a hearing de novo. Because I don't have that material before me and all I have before me, as you've quite rightly said, is some hearsay in respect to some of that material. But if I'm looking at this material from a different perspective, that is a review of the disputes panel's decision, then surely under that circumstance I would be required to go to that material which the disputes panel considered.
PN599
MR O'GRADY: I don't understand the comment in relation to the - from the Delfin people to be a decision of the panel that is the subject of current reviews in the Pritchard matter.
PN600
THE DEPUTY PRESIDENT: Yes. But it went to the question of what the project was that might have incorporated the work that CDK Constructions are currently doing.
PN601
MR O'GRADY: Well, on the basis of an assertion from the CFMEU.
PN602
THE DEPUTY PRESIDENT: Yes, that's right.
PN603
MR O'GRADY: But there's nothing in the material before you concerning the decision that is the subject of review that suggests that that was before the panel. So I don't think it can sneak in by that means. Where your Honour is left is in this position. To use one's general knowledge of the way these sort of developments take place. They take place over a long period of time. There's a complete lack of certainty, no certainty whatsoever as to what is involved in any particular aspect of the development and what be encapsulated in what is asserted to be a project.
PN604
THE DEPUTY PRESIDENT: Yes. But there are numerous submissions before me of the matter, Mr O'Grady. There's a submission before me that for there to be a project there must be a contract. Now, I'll say up front I find that submission to be a bit hard to accept simply on reading it. I don't see that the existence of a project is dependent upon the existence of a contract.
PN605
MR O'GRADY: No. But you have to be satisfied, your Honour, that there is a project.
PN606
THE DEPUTY PRESIDENT: Yes, I do, and I have to be satisfied as to what that project actually is, and it seems to me that any material which is before me which assists with that is relevant material. Now, at the moment I'm having some difficulty coming to a conclusion as to whether or not some of the material that's before me will ultimately prove to be relevant given the number of questions that I have to answer and the way that I have to go about determining this matter.
PN607
MR O'GRADY: Would it assist your Honour if I went to the de novo issue now and dealt with that for the purposes of determining these objections? It may from this perspective, because one of the objections that I have is to do with whatever Mr Hodges might have said at any time is irrelevant. Whatever has taken place before the disputes board at any point in time is irrelevant and your Honour ought have no regard to it. Your Honour is entitled to have regard to the fact that the disputes panel made a particular decision, but it's not your Honour's job to determine whether or not that is correct.
PN608
The parties have all proceeded on the basis that this is a complete reviewing with all parties free to put totally fresh evidence before your Honour which will form the basis of your Honour's decision. That's the way it's progressed. Directions were accepted to the effect of filing material et cetera. Now, on that basis, and it was accepted in the CFMEU submission that this is a hearing de novo. What I was proposing to do - - -
PN609
THE DEPUTY PRESIDENT: That might be the case, Mr O'Grady, but regardless of what the parties might say isn't there an issue here of jurisdiction? I mean, the jurisdiction of the Commission turns upon the role of the Commission and provided by the parties in the agreement. Now, simply for everybody to say, well, it's a hearing de novo, we should just start from scratch, doesn't that ignore the jurisdictional question as to whether or not, if the Commission simply accedes to that on the basis that that's what everybody says, I mean, jurisdiction is a matter of fact. The Commission must determine for itself whether there is a jurisdiction and what that jurisdiction is.
PN610
MR O'GRADY: The jurisdiction that's conferred upon you is conferred by both the disputes procedures, the clause in the disputes procedure and of course section 170LW of the Act, and it's trite to say that. But the question is what is the role of the Commission which is - sorry, what role is afforded to the Commission by the clause in the disputes procedure?
PN611
THE DEPUTY PRESIDENT: Yes, that's exactly right.
PN612
MR O'GRADY: The disputes procedure says that the - I don't have it in front of me, but it something to the effect of the matter first goes to the Victorian Building Industry Disputes Panel, and then after that anyone can refer it to the Commission for review. And then it goes further and says the Commission can exercise its powers of conciliation and arbitration.
PN613
THE DEPUTY PRESIDENT: It might be worthwhile just to get - do you have the disputes procedure there?
PN614
MR O'GRADY: I'll get both the disputes procedure and also the authority that you mentioned earlier, your Honour.
PN615
THE DEPUTY PRESIDENT: Do that, Mr O'Grady, I think that will be helpful.
PN616
MR O'GRADY: I'm just taking the opportunity, your Honour, to hand up a copy of a decision in print N1939, which is a matter of the Australian National Railways Commission v Rutjens, a decision of the Full Bench of 27 May 1996. I'll come to that in a moment. But perhaps to turn first to the disputes procedure going straight down to 10.2(f). It's at page 9 of 81 of the copy of the agreement that I have, your Honour. I don't know whether - - -
PN617
THE DEPUTY PRESIDENT: Yes, I've got it.
PN618
MR O'GRADY: 10.2(f) after the, if you like, the in-house negotiations:
PN619
If a matter remains unresolved either of the parties or the representatives shall refer the dispute at first instance to the Victorian Building Industry Disputes Panel which shall deal with the disputes in accordance with the panel charter.
PN620
Now, I don't think the panel charter is before your Honour, but I'm sure that I can make one available to you if you require it. I know that there is one element to the charter, and that is that decisions of the panel are not to be used as precedents.
PN621
THE DEPUTY PRESIDENT: The main issue that I was looking at when I looked at this, Mr O'Grady, wasn't so much that. I have seen the charter. I can't recall the exact contents of it, but I wasn't involved with that. The next one down, (e) talks about reference of that decision. It doesn't talk about reference of the dispute. It talks about reference of the decision, that being the decision of the Victorian Building Disputes Panel to the Commission for review.
PN622
MR O'GRADY: Well, it depends on what's referred to as that decision.
PN623
THE DEPUTY PRESIDENT: Well, it does, exactly. That's my whole point.
PN624
MR O'GRADY: Well, it might be said - and this was addressed in our submission and it was the basis of our submission that this was a hearing de novo, was that there is nothing to indicate what was said before the panel, and the, if you like - and this is no criticism. In fact it's probably the attractive feature of the process. The lack of formality before the panel makes it very difficult, if not impossible, to review whatever the decision is, particularly if one has regard to how the panel came to its decision.
PN625
THE DEPUTY PRESIDENT: But again I come back to the point I made before about jurisdiction of the Commission. And the jurisdiction of the Commission, as you rightly say, hinges upon section 170LW of the Act and the requirement of the disputes procedure, and the jurisdiction of the Commission it seems to me is limited to a referral of a decision for review.
PN626
MR O'GRADY: Yes.
PN627
THE DEPUTY PRESIDENT: Now, I know the parties have agreed that this is a hearing de novo. It was certainly my view that in a practical sense that's probably the only way that you can pursue this matter. But it seems to me that whilst that may be the case in a practical sense that doesn't get me off the hook from the point of view of ensuring to my satisfaction, because I'm the one that has to be satisfied, that I have a jurisdiction to determine the matter.
PN628
MR O'GRADY: I appreciate that, your Honour.
PN629
THE DEPUTY PRESIDENT: Now, if it is the fact that my jurisdiction is limited to a review of a decision of the review panel, then I'm not sure that the submissions, albeit that there seems to be consent about it, that this is a hearing de novo, stands up.
PN630
MR O'GRADY: Well, your Honour, what we would say is that the review, the word review is broad enough to confer upon you the power to conduct the hearing as a hearing de novo. And if I can take you to the decision of the Full Bench in the matter of the National Railways Commission that I've handed up.
PN631
THE DEPUTY PRESIDENT: Well, just before you do that, and I really do want you to do that. The other way of course of construing the particular provisions that involves the Commission is that the review is a review by way of appeal.
PN632
MR O'GRADY: Well, I mean, there's traditionally the three modes if you like of appeal. There's an appeal in the strict sense. There's an appeal by way of a re-hearing if you like.
PN633
THE DEPUTY PRESIDENT: Yes, but in any event it would rely upon error shown in the decision maker at first instance.
PN634
MR O'GRADY: Well, it may or it may not be. But then there's a hearing de novo. And what this Full Bench decision does is it takes you to the - - -
PN635
THE DEPUTY PRESIDENT: All right, well, take me to that.
PN636
MR O'GRADY: - - - various authorities that deal with forms of appeal and administrative review et cetera, and the ultimate conclusion is of course typically it depends on all of the circumstances. But perhaps just to set the background. This is actually a matter which came to the Industrial Relations Commission by way of an appeal against a decision of an occupational health and safety officer to issue a prohibition notice under Commonwealth occupational health and safety legislation. And if I can take you to page 3 of the decision, you will see halfway down it refers to section 48 of the Occupational Health and Safety Act, which sets out the powers, that is, that:
PN637
Where an investigator has issued a prohibition notice a person can appeal against the decision to the reviewing authority.
PN638
And then it sets out the reviewing authority's powers, affirm or revoke the decision appealed against. If it revokes the decision substitute for the decision such other decision being a decision of the kind appealed against as it thinks appropriate. So it's a broad power that's given to the reviewing authority. And the reviewing authority is defined as the Commission. The Commission then sought specific submissions on the nature of the appeal, and deals with all of those issues about the three types of appeal, et cetera, and that starts at page 6. And if I can take you further to the bottom of page 7, you will see there the Full Bench approaches the very issue of the three types of appeal, and it identified them.
PN639
An appeal in the strict sense, that is, whether the decision is subject to appeal was right on the material which the decision making body had before it. Well, we would submit that clearly this is not a matter that's in that category because there's nothing to indicate what the panel had before it for the purposes of making its decision and for the lack of formality and for the matters that we set out in our written submission, it's not in that category.
PN640
The nature of an appeal by re-hearing is usually one that's dealt with on the documents, that is, one looks at all of the material that was before the panel and hears the matter again on the basis of that material and in limited circumstances any new material that the parties put before the body who is hearing the appeal or review. We say we're not in that category either.
PN641
THE DEPUTY PRESIDENT: Well, can I just take you back to the first category again. You'd say we're not in that category because there's essentially no material there from first instance to enable the Commission to make any such determination. There's a recent Full Bench decision in a totally unrelated area but may have some relevance, in respect of the dismissal of a U matter application on the basis that - by a member of the Commission on the basis that the - at the conciliation stage on the basis that the matter had no reasonable prospect of success. That was appealed to the Commission.
PN642
MR O'GRADY: The issue of a certificate?
PN643
THE DEPUTY PRESIDENT: The issue of a certificate - - -
PN644
MR O'GRADY: I haven't read the decision but I am aware of it, sorry, your Honour.
PN645
THE DEPUTY PRESIDENT: There was essentially an application under the unfair dismissal provisions in the Act. It went to conciliation, the Commissioner dismissed the application on the basis that it had, in his view, no reasonable prospects of success, and he issued a certificate to that extent, and he did it without providing reasons as he's not required to in the circumstances. He's simply required to come to a consideration having heard the materials that he heard. Now, the Full Bench made some comments about how it would be preferable in the circumstances had they had some reasoning from the Commissioner as to why he came to that particular view, and I think they made a comment more for the benefit of others members of the Commission, that if a member was to come to such a conclusion it could be helpful from the point of view of Appeal Benches if they said more than simply, I dismiss the matter because I am of a view that it has no reasonable prospects of success. But it didn't obviate the appeal.
PN646
MR O'GRADY: It didn't stop the appeal, no, your Honour, I understand that.
PN647
THE DEPUTY PRESIDENT: It didn't stop the appeal. And doesn't this same thing apply here? If you come to a view that this is in fact a review or an appeal against a decision of the disputes panel, then the fact that there might be little before the Commission as to why the disputes panel reached the conclusion it did, wouldn't seem to me to be a reason to say, well, it can't be in that category, which is what I understood you to say.
PN648
MR O'GRADY: Well, I make that submission, your Honour, but it's amongst all of the circumstances of the nature of the disputes procedure and the proceedings before the disputes panel, and the matter as it comes before this Commission. In essence the disputes panel is really to have a bite at the cherry and try and knock it over before it comes to the Commission. That's in essence what the disputes procedure provides.
PN649
THE DEPUTY PRESIDENT: Yes, absolutely.
PN650
MR O'GRADY: So that's really what it is.
PN651
THE DEPUTY PRESIDENT: But I'm faced with some words in a disputes procedure that require me, obligate me in fact to determine whether or not I have a jurisdiction in the matter.
PN652
MR O'GRADY: Yes.
PN653
THE DEPUTY PRESIDENT: And I said at the outset that's a matter of fact. It may be that the parties have all different views as to what that circumstance is. It doesn't relieve me of satisfying myself that there is a jurisdiction to determine the matter in a particular way. And the fact that you all agree that it's a hearing de novo doesn't allow me to quietly go over to the basin and wash my hands and say, well, fine, they all agree, I'll accept it, I've got a jurisdiction, and just hear it as if nobody has ever heard it before.
PN654
MR O'GRADY: I appreciate that, your Honour, and I'm endeavouring to put before your Honour the basis on which - - -
PN655
THE DEPUTY PRESIDENT: Yes, and I've interrupted you, and I'm sorry, so go ahead.
PN656
MR O'GRADY: The basis of how much you can accept the agreed position, which I hope is still an agreed position, although I suspect from the noises that I'm hearing from the right that that agreement may no longer be the case. The next form of appeal, if you like, is the re-hearing. I was addressing your Honour on the re-hearing. And you will know of course that a re-hearing is a label that's attached to a number of forms of different types of appeal, but the general common thread through those types of appeal is where the appeal is dealt with, if you like, on the papers, that is, all of the material that was before the decision maker at first instance goes before the appeal body or the review body, and the review body then makes its own decision based on the material that was before the decision maker at first instance. And there is limited ability to, depending on the circumstances of course, to put additional material before the review body. That's another form.
PN657
The third form is the, if you like, the complete clean sheet, the hearing de novo. Now, the decision of the Full Bench at pages 8 and 9 cites the High Court in Spurway Constructions on the distinction between an appeal, a re-hearing and a hearing de novo, and it does so in two reasonably solid passages on page 9, and then comes to, if you like, a summary of the relevant considerations at page 10:
PN658
The decided cases consistently attach an importance to identifying the true character of the decision making body from which the appeal is made before going on to consider the powers of - - -
PN659
THE DEPUTY PRESIDENT: Sorry, where are you reading from?
PN660
MR O'GRADY: I'm reading from page 10 after the second long quote from Building Licensing Board v Spurway Constructions. I'm at about point 2 of page 10, the decided cases:
PN661
Consistently attach importance to identifying the true character of the decision making body from which the appeal is made before going on to consider the powers and functions of the appellate tribunal. Some of the matters which have been held to be relevant are the existence of two parties in an adversary position, the right to representation, provision for a hearing and the calling of evidence, the fact of a determination and the requirement of giving reasons for that decision.
PN662
In this case there was an investigation which was carried out. You will see the various bullet points and the section references, and a prohibition notice which has to specify certain things. So it describes first of all the matters that are taken into account in issuing a prohibition notice. Then over the page at the top of page 11:
PN663
On the other hand there are a number of features which indicate the appeal cannot be conveniently or readily undertaken if the Commission is confined to the material before the investigator.
PN664
Now, that's the position that you're in, your Honour. The appeal - sorry, the review, you exercising your powers of conciliation and/or arbitration in a review cannot conveniently undertake those responsibilities if you were confined to the materials that were before the panel. And so what we say is on that basis you get into the territory of a hearing de novo. And if I can go to halfway down the page just short of point 5 of the page:
PN665
The power to make on appeal such a decision as it thinks appropriate subject only to the requirement that it's a decision of the kind appealed against, points to the conclusion the Commission is required to decide the case on the facts and all which exist at the date of its decision.
PN666
And then, next paragraph:
PN667
Given the nature of the proceedings before the primary decision maker we have concluded that an appeal pursuant to section 48 is to involve a hearing de novo. An appeal of this nature involves a fresh hearing with the parties entitled to begin again and adduce new evidence. The essential issue to be determined on the appeal is whether on the evidence before the Commission it is satisfied that it's reasonably necessary to issue a prohibition notice.
PN668
Et cetera. What we submit, your Honour, is that the question that is before your Honour, on the evidence before your Honour, is there a project, what is the value of the project, to reach a view as to whether or not a site allowance is payable. And then just to finish off the references to this decision, your Honour, the next paragraph addresses the point that I was making earlier, that your Honour has regard to the disputes panel, but it's not for you to determine whether the decision is correct or not:
PN669
The conclusions reached by the primary decision maker in this regard would be relevant to the determination of the issue before the Commission, but they are not decisive. The task of the Commission on appeal is to make its own decision in place of the investigator's decision on the basis of the evidence and material before the Commission. There is no presumption that the investigator's decision is correct.
PN670
So what we say, your Honour, is that given the nature of the proceedings before the panel, the requirement essentially to enable you to make a decision that you hear evidence afresh, as you have done or as you are part way through doing, commands the conclusion that the nature of the review is a hearing de novo in which you essentially substitute your decision for that of the panel.
PN671
THE DEPUTY PRESIDENT: And do you say that my decision here is appellable?
PN672
MR O'GRADY: Well, the issue of whether a decision under a disputes procedure is in the Commission's powers conferred by section 170LW can be appealed is of itself a vexed question, your Honour, and it's not one that I've come prepared to traverse. I might be required to do that, but I don't wish that upon your Honour, but at some stage - - -
PN673
THE DEPUTY PRESIDENT: Well, you might. The reason I asked the question is simply because wouldn't this sort of approach, if I was simply to take it on the basis of what you say, give rise for example to an appeal on the basis that the Deputy President mistook his jurisdiction in coming to a conclusion or a determination in the matter he was charged in fact with determining whether - or with reviewing a decision of the disputes panel he failed to do that?
PN674
MR O'GRADY: Well, I'd say my immediate reaction, looking at the disputes procedure, is that one would then have to go to the provisions of the Act to ascertain the nature of any appeal to a Full Bench from your Honour's decision rather than the disputes procedure, because the review that's before your Honour is one that is prescribed by the disputes procedure. It's not apparent from the disputes procedure that there is then a further process - - -
PN675
THE DEPUTY PRESIDENT: No, that's not really the point. I'm not overly concerned about what might happen after the matter has got beyond me. I was more raising the point of the grounds of such claim, given that you say, you know, this is a hearing de novo and must be heard as such, and you've gone to this decision to substantiate the point that you make. But I'm not sure that I can get around as easily the wording of the disputes procedure from which at least partly the jurisdiction of this Commission derives.
PN676
MR O'GRADY: I say it's entirely within the disputes procedure, your Honour. The concept of a review in that subparagraph (g) of clause 10.2 gives you all of these powers. It's entirely within the disputes procedure which is given to you under the auspices of section 170LW. As for the nature of any proceeding before a Full Bench, well, there would be submissions about that, but one suspects that it doesn't come from, or the nature of the process before the Full Bench would not appear to come from the disputes procedure. It would come from statutory powers.
PN677
THE DEPUTY PRESIDENT: Yes. But leave aside the question as to whether a decision made under section 170LW, where there's no specific - where's it's not specifically allowed for an appeal, leave that aside. That's a determination for someone else at another time, and I wasn't raising it, as I said, from that point of view. It was raised more as to if there was such an appeal what those grounds would be and whether or not those grounds could be made out if you accepted that an appeal right existed.
PN678
MR O'GRADY: For immediate purposes my submission is this. The nature of the review that is envisaged by clause 10.2(g) is that of a hearing de novo. It's available to you under that provision, and it seems to be accepted by the parties that that's the case, subject to what's about to be said. And if you look at all of the circumstances that lead to the matter being before you and the nature of the proceedings before the disputes panel you can only properly discharge your responsibilities by hearing this matter de novo completely afresh.
PN679
THE DEPUTY PRESIDENT: Yes, all right. Is that as much as you want to say on both that matter and the matter of the relevant question?
PN680
MR O'GRADY: Yes. There was the hearsay objection. In essence the hearsay objection, I think I've made the point in relation to that.
PN681
THE DEPUTY PRESIDENT: Yes, you have.
PN682
MR O'GRADY: And made it quite forcefully. That and the relevance question, you use the whole of the material between paragraphs 3 and 13, and then paragraphs 14 and 15, well, I suspect your Honour has a view about those, and that is that the 10 other matters - sorry, just having said that I'm looking at paragraph 14.
PN683
THE DEPUTY PRESIDENT: Yes, I must admit I haven't.
PN684
MR O'GRADY: Paragraph 15, the submission is that it's irrelevant and - - -
PN685
THE DEPUTY PRESIDENT: Paragraph 15 I've already made a comment about. Unless Ms Walters has got some rabbits she can pull out of a hat I don't think 15 gets a look in because I don't see how it takes me anywhere. But she might be able to. As far as the rest of it is concerned my inclination is still to leave the material in. It may ultimately come down to no weight being placed upon some of that material in the circumstances once I consider the full range of issues that I need to consider. It seems to me that some of your objection to the material is based upon an acceptance by me that this is a hearing de novo, and I'm not - whilst I've heard what you've got to say at this stage I'm not persuaded yet, Mr O'Grady, that that is in fact the case.
PN686
MR O'GRADY: It is, I accept that, your Honour, subject to this. If your Honour is against me on the hearing de novo, and even if you look at it from the point of view of an appeal in the strict sense, the fact that the disputes panel determined the existence of the project and the value of the project on the basis of a press release in circumstances where one of the parties to the proceeding didn't have the ability to test the substance of those matters, of itself is an error sufficient to ground a successful appeal.
PN687
So, if you like, the objection at this stage in relation to that aspect of the evidence is really put to say that you can't salvage, if you like, the proceeding on the basis of what is a deficiency at the previous occasion anyway. It is a fundamental problem with the case that's being put by the CFMEU. No one, not even you, gets to test - - -
PN688
THE DEPUTY PRESIDENT: Thanks, Mr O'Grady.
PN689
MR O'GRADY: Well, you don't, your Honour, because you don't get to test the $155m figure or what is the project.
PN690
THE DEPUTY PRESIDENT: No.
PN691
MR O'GRADY: No one gets to do it, your Honour. Thank you.
PN692
THE DEPUTY PRESIDENT: All right, thanks, Mr O'Grady. Look, before I hear from you, Ms Walters, I've just got an urgent matter that's come up to do with an application for orders that I'll just have to give some advice upon. I'll only need five minutes, so I'll just adjourn for five minutes to consider that.
<SHORT ADJOURNMENT [3.30PM]
<RESUMED [3.33PM]
PN693
THE DEPUTY PRESIDENT: Thank you. Sorry about that. Ms Walters, what I'm going to do, and it might save you a bit of time, is I'm going to leave the material in. It may end up being a matter of weight, but I am going to leave the material in, with the exception, subject to what you have to say about it, of paragraph 15, which I intend to strike on the basis of relevance unless you can convince me otherwise.
PN694
MS WALTERS: Your Honour, my submissions in relation to the question of the strikeout of 15 would be extremely limited. What we say the relevance of that evidence is, simply that those companies, it goes to the question of what is a project? And the very heart of this dispute which has been couched by Mr O'Grady as, is there a project? That's what we say this is about, is what is the project? And we say the context where the term project is provided for in certified agreements between those companies and the CFMEU, yes, we understand the position in relation to relevance of the matter between as to the CDK and CFMEU before you. But what we do say is what's being asked by the parties essentially is for you to determine what is the project, and that in determining that you ought have regard to what previous parties have determined the term project to mean, where that same terminology is used in the appendixed certified agreement.
PN695
THE DEPUTY PRESIDENT: Yes. Well, look, I don't see that their payment of it or otherwise goes any way towards determining the question of whether there's a project that incorporates the work undertaken by CDK, so I don't accept that submission, so I intend to strike paragraph 15. You can take the stand I guess, Mr Reardon. I assume you're calling Mr Reardon now, Ms Walters? I don't want to do your job for you.
MS WALTERS: Yes, your Honour.
<SHAUN REARDON, AFFIRMED [3.36PM]
PN697
THE DEPUTY PRESIDENT: You can be seated thanks, Mr Reardon. Can I get some indication from the parties as to how long they intend to be with this because I prefer to dispense with witness evidence at least today. We won't get much further than that given the house, but I'd like to at least do that if we can. How long did you intend to be in-chief?
PN698
MS WALTERS: Not very long at all, your Honour.
PN699
THE DEPUTY PRESIDENT: Mr Lange?
PN700
MR LANGE: Realistically 20 to 30 minutes.
PN701
THE DEPUTY PRESIDENT: Mr O'Grady?
PN702
MR O'GRADY: Depending on what's covered by Mr Lange I would have thought five minutes, your Honour.
THE DEPUTY PRESIDENT: All right. On that basis I intend to sit on after we've completed that witness evidence this afternoon. Go ahead, Ms Walters.
<EXAMINATION-IN-CHIEF BY MS WALTERS [3.38PM]
PN704
MS WALTERS: Mr Reardon, have you prepared a witness statement for the purpose of these proceedings?---I have.
PN705
And are the premises in which you are employed located at 500 Swanston Street, Carlton South?---Correct.
PN706
And, Mr Reardon, you've been employed by the CFMEU as an organiser for approximately six years?---Correct.
PN707
Mr Reardon, do you swear the contents of your statement are true and correct?---I do.
PN708
Having said that, Mr Reardon, is there anything that you might seek to correct in your witness statement?---There is actually on page - paragraph 8. Just there it's got, halfway down the paragraph it's got construction, include approximately 20 per cent retail. I think from memory that's supposed to say 51 per cent, just change it.
PN709
So you seek to change the sentence that commences with, "The basis for making this statement was," which then concludes with "that the construction included approximately 20 per cent retail"?---It should say 51.
PN710
So mark that as changed. Are there any other corrections you seek to make, Mr Reardon?---No.
PN711
We seek that the witness statement be tendered.
PN712
THE DEPUTY PRESIDENT: It has a number of attachments, Ms Walters. You're tendering those along with the statement, or did you intend to tender those separately?
PN713
MS WALTERS: No, your Honour. I seek that they be tendered.
PN714
THE DEPUTY PRESIDENT: Yes. So that was SR1 through to?
PN715
MS WALTERS: Through to 9.
PN716
THE DEPUTY PRESIDENT: Through to 9.
**** SHAUN REARDON XN MS WALTERS
PN717
MS WALTERS: Ten, your Honour, I think it is.
THE DEPUTY PRESIDENT: Yes, through to SR10.
EXHIBIT #CFMEU1 STATEMENT OF SHAUN REARDON WITH ATTACHMENTS
PN719
MS WALTERS: Mr Reardon, if I can take you to the final paragraph of your statement. In that statement you talk about your experience in the industry, and you also say the project has never been defined by a contract. In total, Mr Reardon, have long have you engaged in the, or involved in the construction industry?---In total about 19 years.
PN720
And in what capacities?---Carpenter, shop steward, safety rep, organiser.
PN721
Thank you. Can you explain to the Commission, Mr Reardon, how in fact the term project in your experience has been defined?---Well, from my experience it's been based on an overall concept with something to be developed. I have experienced more than one builder on projects before. It's never been sort of envisaged of one single contract and the price of that. There were several contracts on both the Kane and Pritchard components of the Caroline Springs project that I'm sure wouldn't have added up to what Kane's contract were. It's always been envisaged as a total project value, that's what was in the VBIA at the time, and it was also in the enterprise agreements both then and now.
PN722
Mr Reardon, in your experience is it common practice for subcontractors to be engaged builders on projects?---Yes, it is.
PN723
And have you previously made a claim that a subcontractor that has an enterprise agreement, or current enterprise agreement with the CFMEU pay a project site allowance in accordance with their agreement?---Yes. Whatever their agreement says, that's what the claim is. The pattern agreement is based on a total project value.
PN724
Right. And in your experience has the subcontractor said or has objected to payment on the basis that their contractual relationship with the builder has a value of less than, I think it's 2.1 in clause 7.2 of the enterprise agreement?---If we're talking specifically about the Caroline Springs project, it's been raised on several occasions. I've contacted many builders and subcontractors out there. I try to do that during the tendering stage to let them know that what the project value is, and always on the back of that I advise them, if they're a member of the MBA, to ring the MBA to confirm this, and that has happened several times.
**** SHAUN REARDON XN MS WALTERS
PN725
Mr Reardon, has subcontractor as opposed to, on your experience, specifically in relation to Caroline Springs, objected to a claim by you to pay that site allowance on the basis that it's a subcontractor and the value of its contractual relationship with a builder is less than 2.1?---The only dispute I've had at Caroline Springs regarding a site allowance is on CDKs arrival after advising them to ring the MBA.
PN726
And to the best of your knowledge subcontractors have been engaged by builders on the Caroline Springs Town Centre Project?---Many.
PN727
MR O'GRADY: Your Honour, I might object to this line of questioning because it fits straight within the bailiwick of paragraph 15. It's getting nowhere, and we have limited time.
PN728
MS WALTERS: I won't press that point, your Honour?---You don't have to
start - - -
PN729
Mr Reardon, contain your comments to responses to the question. There's no further questions in-chief.
PN730
THE DEPUTY PRESIDENT: Thank you. Mr Lange?
MR LANGE: thank you, your Honour.
<CROSS-EXAMINATION BY MR LANGE [3.46PM]
PN732
MR LANGE: Mr Reardon, it's right to say isn't it that the site allowance procedure in the CDK enterprise agreement is there to compensate employees for what would otherwise be award rates in relation to confined space, wet work, dirty work, second hand timber and fumes, that's right isn't it?---Yes, I believe so, yes.
PN733
And leaving the Melbourne CBD site, because there are travel issues in relation to the Melbourne CBD and disabilities associated with that travel, the larger a project is in relation to which disabilities are - sorry, I'll withdraw that. A project size is generally related to the level of disabilities which might be suffered in relation to those particular disabilities. You might have to walk a bit further in the wet, you might have a larger expanse of dirt the larger the project is in relation to which you ought to be compensated, and that's why New Projects Victoria, clause 7.2 of the agreement, has a scale which says project, which, as the project value increases so does the site allowance. That's the reason for that isn't it?---I don't believe so. I mean, to me I'd much prefer - - -
**** SHAUN REARDON XXN MR LANGE
PN734
Can you say yes or no?---Well, I don't believe so.
PN735
So that was a no then. All right?---To my experience - - -
PN736
THE DEPUTY PRESIDENT: Mr Reardon, just confine yourself to the questions asked. If Ms Walters thinks it's necessary to return to a point then she will do so in re-examination?---Sorry, your Honour.
PN737
MR LANGE: Can I ask you to turn to paragraph 5 in your statement please. That paragraph refers to a map of Caroline Springs Town Centre Project as it exists today, and that is attachment SR2. You don't have a map of the project as it was proposed in 2003 do you?---In 2003?
PN738
In 2003 you don't have a map of the project as it stood in 2003?---The original map I got, if I can just read where it was as far as the project was going, Kane Constructions. Whether there's a map in our submissions there from that date I'm not - - -
PN739
Do you have a map which shows the development as it was planned in 2003?
---Not in front of me, no.
PN740
Do you have access to one?---I'm quite sure if I went through my files that if there was a concept then, then yes, I would have access to it.
PN741
And you didn't put it in your material when you said this is what the project is?---I can't - wouldn't know if I haven't got it in front of me.
PN742
No, it's not there so presumably you didn't put it in there?---Then you've answered the question.
PN743
All right. In paragraph 7 you deal with the issue of having made a claim for a shopping centre allowance?---Correct.
PN744
Have you read Disputes Board decision 51 of 2004? I ask the witness be handed CDK8.
PN745
THE DEPUTY PRESIDENT: Sorry, what was it you referred to again?
PN746
MR LANGE: CDK8, your Honour. Now, reading that document, that's the reason that your shopping centre allowance claim didn't go any further, is that correct?---That was at the time that the - - -
**** SHAUN REARDON XXN MR LANGE
PN747
Sorry, is that correct or not?---That the shopping centre allowance claim was dropped, yes, that's at the time.
PN748
Okay, thank you. Could I just have that returned please. If I take you to paragraph 9 of your statement, you refer there to a media release, and you found that by searching on the Internet, that's correct isn't it?---After Daniel's advice, yes.
PN749
So you did find that by searching on the Internet?---Correct.
PN750
There's no other document you have which says the project value of Caroline Springs Town Centre is $155m do you?---Newspaper articles, yes. Yes.
PN751
Sorry, you do have those?---I do.
PN752
Where do they appear in your material?---I haven't got the material in front of me.
PN753
So they don't appear in your material anywhere?---Not in front of me, no.
PN754
Okay. If we go on to paragraph 11 please. You refer there to, you say in, I presume that's "I also understood Martin Gadke to be the project manager." How did you reach that understanding?---He told me.
PN755
Martin Gadke told you he was the project manager?---Correct.
PN756
CDK didn't tell you he was the project manager?---CDK weren't on the project at this time.
PN757
What time was that?---At the time of Martin Gadke?
PN758
Yes?---It was immediately after the Disputes Board decision that I just handed back, within a day or two of that decision.
PN759
So mid 2004, April 2004. Mr Gadke doesn't appear anywhere else in your statement does he, or in the attachments. You've got no other reference to him have you?---Only from the Disputes Board.
PN760
No, it doesn't appear anywhere else in your material that you have filed in your statement?---I believe on the Disputes Board decision in the file that Mr Gadke is mentioned there.
**** SHAUN REARDON XXN MR LANGE
PN761
And that's the only other place?---Without having the information in front of
me - - -
PN762
Well, you've got your statement in front of you?---I can only see his name once on the statement.
PN763
All right. Do you understand Martin Gadke to be an employee of Delfin?---I do.
PN764
So he's not an employee of CDK?---Not to my knowledge.
PN765
Thank you. Can I ask the witness be shown Disputes Board decision 75B of 2004, which is part of DH1.
PN766
Now, that decision is in relation to a site allowance claim that you made on Kane Constructions and Pritchard that was dealt with by the Disputes Board, and the Disputes Board gave the decision. It then gave - I'm sorry, it gave an interim decision. It then goes 75A, which made a decision and then it clarified that decision in this decision 75B of 2004. That's a fair characterisation isn't it?---It's a long winded - I sort of lost you halfway there. I'm looking at the one in front of me.
PN767
All right. Is this decision 75B in 2004 part of the ultimate decision - sorry, I'll say the last decision dealing with site allowance claim the union made on Kane Constructions and Pritchard at Caroline Springs?---Yes, I believe so.
PN768
Now, this decision does not say - - -?---CDK?
PN769
This decision does not say that either Kane Constructions or Pritchard is required to pay a site allowance in the manner that you sought it in relation to the work they were undertaking at the time. And I put that to you and I draw your attention to the last paragraph here which says:
PN770
Simply put this means that the current site allowance being paid on all works presently under way shall not be affected by the above decision.
PN771
That's a fair characterisation?---That's what it says, yes.
PN772
Yes. And you're aware the Disputes Board decisions are not a precedent for any other disputes that are dealt with by the Disputes Board. That's in accordance with the Disputes Board charter isn't it?---I usually leave that up to our legal people.
**** SHAUN REARDON XXN MR LANGE
PN773
Well, do you know that or don't you?---I've heard the argument. I couldn't really debate you on it.
PN774
So you don't take a position on it?---I couldn't debate you on it. That's why I have legal representation here.
PN775
All right. Can I take you to paragraph 16. You detail there your conversation with Julian de Kretser. Now, the reason you told him - I'm sorry, I'll go back a step. You said to him that he's required to pay the appropriate site allowance, and you told him that the site allowance was based on a project of value of $155m didn't you?---Words to that effect.
PN776
All right. And the basis on which you did that was that 2003 media release isn't it?---No. The basis I did that was on the Disputes Board decision.
PN777
So you used the Disputes Board decision as a precedent?---Not as a precedent, as a decision with agreement from the MBA.
PN778
Okay. I'm sorry, you say with agreement from the MBA. Are you suggesting that Mr Hodges agreed with you that the Disputes Board should be applied?---I am accepting - what I am putting to you is that they accepted the decision and have been advising many of the contractors out there to pay the appropriate site allowance based on $155m down for that project.
PN779
You've been here instructing the advocate for the union?---I beg your pardon?
PN780
You've heard the evidence of Mr Hodges on the point of who was told what by the MBA about a site allowance. You're now suggesting that in fact some contractors were told by the MBA that - - -?---I most definitely.
PN781
- - - they had to pay a site allowance?---Correct.
PN782
You weren't privy to any discussions between any person at the MBA and any of those contractors on site?---I was privy to discussions with the contractors on - - -
PN783
Answer my question please. You were not privy were you to any discussions between the MBA and any of the contractors - builders I should say, on site about the advice the MBA gave them in relation to site allowance?---Yes, I was.
**** SHAUN REARDON XXN MR LANGE
PN784
You heard a conversation did you?---No. I had conversations with contractors that I'd advised to ring the union - - -
PN785
Thank you, Mr Reardon?---I'm answering the question. I'm trying to answer the question.
PN786
THE DEPUTY PRESIDENT: Mr Reardon, as I said to you before, if Ms Walters thinks that there's something which you should return to,
she will return to it?
---Mr Commissioner, - - -
PN787
Well, Mr Reardon, the question you were asked was, were you privy to conversations between two parties, and you answered that yes, and then you proceeded to say that that wasn't the case, that you'd heard it from contractors. So you did in fact answer the question, and as I understand it you weren't actually privy to the conversations, you heard reports of those conversations later, is that the case?---Correct.
PN788
Yes, thank you.
PN789
MR LANGE: You were also in the room when evidence was given by Mr de Kretser about projects he's been involved in, in which there has been a geographical area in which a total value of projects within that area has not formed the basis of a site allowance, you recall hearing that evidence?---I do.
PN790
And you weren't involved in making any claims on Mr de Kretser or CDK in relation to any of those projects?---I wasn't.
PN791
And you accept that the union did not make claims on Mr de Kretser or CDK in relation to any of those projects?---I don't accept it, no. I'd like to speak to the organisers.
PN792
Are you saying you don't know?---Yes.
PN793
THE DEPUTY PRESIDENT: You don't know.
PN794
MR LANGE: All right. I have nothing further, your Honour.
PN795
THE DEPUTY PRESIDENT: Thank you. Mr O'Grady?---Mr Commissioner, can I speak?
**** SHAUN REARDON XXN MR LANGE
PN796
No. You're not here to make submissions?---I strongly object to - - -
PN797
Mr Reardon, you're not in a position to object?---.....
PN798
Mr Reardon, if you just wait for a minute. If Ms Walters has a grounds for objection she will object. You're in the stand to answer questions and that is what you're required to do. Now, what is it that you wanted to say?---I strongly oppose being asked questions by an organisation that's purely here to roll over the CFMEU. They are not playing a balanced part in this.
PN799
Well, I've heard enough thanks, Mr Reardon. They have been accepted as having a right to intervene in this matter and as such they have certain rights in this matter. You've chosen to give evidence in this matter and your obligation is to answer the questions that you're asked. Go ahead, Mr O'Grady.
MR O'GRADY: If your Honour pleases.
<CROSS-EXAMINATION BY MR O'GRADY [4.01PM]
PN801
MR O'GRADY: Mr Reardon, you were asked some questions by Mr Lange about site allowances. In essence the concept of a site allowance is to basically gross up a number of disability allowances that might otherwise apply on the project isn't it?---I'm unaware of the term gross up.
PN802
Well, there are in awards and certified agreements various disability allowances aren't there for certain types of work?---There are.
PN803
That's right. And where projects are large projects rather than go through the exercise of ticking off which allowances apply to the project there is a site allowance that's applied instead of specific disability allowances isn't there?
PN804
THE DEPUTY PRESIDENT: Well, I think we covered that didn't we, Mr O'Grady, in Mr Lange's - - -
PN805
MR O'GRADY: It goes to something, your Honour.
PN806
THE DEPUTY PRESIDENT: Yes, carry on.
PN807
MR O'GRADY: I was still waiting on an answer.
**** SHAUN REARDON XXN MR O'GRADY
PN808
THE DEPUTY PRESIDENT: Yes. Well, it has been answered. That was Mr Reardon's understanding that a site allowance was in lieu of various award disability allowances.
PN809
MR O'GRADY: Yes, very well, your Honour.
PN810
Now, in relation to the medical centre and the information centre you initially took the view that the shopping centre allowance should
apply to those parts of the construction work that were being conducted at Caroline Springs didn't you?
---Correct.
PN811
Yes. And you claimed the shopping centre allowance didn't you?---Correct.
PN812
You ultimately accepted didn't you that they were not part of the shopping centre were they?---Does this have to be a yes or no question? It needs some detail.
PN813
THE DEPUTY PRESIDENT: Well, the question just requires a yes or no, Mr Reardon, and as I said to you before, if Ms Walters thinks that that needs to be elaborated upon you will have an opportunity to do so?---They weren't components of just the shopping centre, that's correct.
PN814
MR O'GRADY: Yes. So the shopping centre allowance was not applicable to work carried out on the information centre and the medical centre?---Correct.
PN815
And it's not the position of the CFMEU is it to seek the payment of allowances for disabilities that are not encountered in a particular construction job is it?---It's based on a total project value under the agreement, the pattern agreement.
PN816
I'll ask the question again. It is not the position of the CFMEU to seek the payment of allowances for disabilities that are not otherwise encountered on the job is it?
PN817
MS WALTERS: Your Honour, I object to the question. It's not relevant to the proceedings. Mr Reardon is giving the evidence as to his involvement in making a claim, what he says is the site allowance at Caroline Springs. The question is much, much broader than that and not relevant to the proceedings before you.
PN818
THE DEPUTY PRESIDENT: What is the relevance, Mr O'Grady?
**** SHAUN REARDON XXN MR O'GRADY
PN819
MR O'GRADY: We have here a union official who is in the position where he places claims on companies for payment of allowances, one of which is the payment of a site allowance for this particular alleged project. What I'm focusing on is the issue of discerning what allowances are applicable and what allowances are not, and I'm perfectly entitled to ask that, your Honour. Of course it's relevant.
PN820
THE DEPUTY PRESIDENT: Yes, answer the question, Mr Reardon?---The allowance was dropped for the claim for a shopping centre allowance to pursue an overall total project allowance of the Caroline Springs Town Centre Project.
PN821
That still doesn't answer my question though does it, Mr Reardon? The question was that it is not the position of the CFMEU to claim disability allowances for disabilities that are not encountered on the particular job, is it?---That's correct.
PN822
So that in that case it wasn't correct ultimately to claim the shopping centre allowance for the medical centre. It's the same issue isn't it?---No, it isn't.
PN823
MS WALTERS: With respect, we object again to that question. The manner in which the question was couched to start with, it was not correct to do something, the evidence of Mr Reardon is in accordance with a previous agreement than the agreement that's currently before you and the dispute resolution procedure.
PN824
MR O'GRADY: I'll move on, Commissioner. I'll save Ms Walters the effort of continuing with the objection. I'll move on.
PN825
If for example there was a multi storey allowance for the medical centre, that is an allowance, a disability in respect of which a multi storey allowance could and would be sought in respect of work on the medical centre isn't it?
PN826
MS WALTERS: Your Honour, I object again?---If it was a multi storey building then there would have been a claim for a multi storey allowance, correct.
PN827
MR O'GRADY: Exactly. Now, in respect of work that's being carried on a learn to swim centre it would be inappropriate to claim a multi storey allowance for that work in circumstances where there's a multi storey building at a medical centre on the other side of town wouldn't it?---If there were a multi storey building as part of the Caroline Springs project then I dare say that allowance would have been claimed. There is no such multi storey building in the Caroline Springs Town Centre.
**** SHAUN REARDON XXN MR O'GRADY
PN828
Now, in your witness statement, Mr Reardon, you say in your experience the developer defines the project. It's the last line of your - the last sentence of your witness statement. And by that what you mean is the developer defines the project over which the developer has control don't you?---Can you simplify the question please?
PN829
It's the developer's project, the work that is under the control of the developer that you're talking about there isn't it?---Correct.
PN830
Yes. It can't control work that's done by someone else that is not under the control of the developer can it?---It's controlled the project as far as it is allocated a swimming pool for that site.
PN831
Yes, very well. I have no further questions, your Honour.
THE DEPUTY PRESIDENT: Thanks, Mr O'Grady. Re-examination, Ms Walters?
<RE-EXAMINATION BY MS WALTERS [4.09PM]
PN833
MS WALTERS: Mr Reardon, in cross-examination Mr Lange took you to SR2, which is the map of the town centre, and put it to you and certainly asked a question whether that was a current map, and certainly put it to you that it wasn't a map of the town centre in 2003, and secondly, asked you if you had access to that and that you hadn't put it in your witness statement. I propose, save for any objection - apologies, your Honour. Mr O'Grady just put to you that your understanding of the role of project developer and took you to the final paragraph of your witness statement, and in your witness statement you've also referred to Mr Gadke as the project manager who is employed by Delfin at paragraph 11 of your statement. Mr Reardon, you've answered Mr O'Grady that you understood the project manager to have control over the project. Can you explain to the Commission why you believe that's the case?---When Mr Gadke came to the disputes panel he had an overall plan of what the Caroline Springs Town Centre Project was all about. It had several different things that were promised to the community involving schools, police stations, vets, medical centres and a swimming pool.
PN834
MR O'GRADY: Your Honour, this is falling into a category of hearsay evidence. This witness is giving evidence of Mr Gadke. It doesn't arise out of the question that I put in cross-examination nor the answer that was given in cross-examination. The question that was put was in a general sense to that last sentence about the project.
**** SHAUN REARDON RXN MS WALTERS
PN835
THE DEPUTY PRESIDENT: Yes. I'm not sure whether Ms Walters is referring to the question that you put, Mr O'Grady, in respect of the last sentence, or questions put by Mr Lange in respect of Mr Gadke's involvement. There are two separate issues.
PN836
MR O'GRADY: Yes. But the first - even if you put to one side the second basis of the objection, the first basis of the objection is still pressed.
PN837
THE DEPUTY PRESIDENT: Yes, it is hearsay, Ms Walters.
PN838
MS WALTERS: Yes. And we say it's then open to the Commission to place weight on the evidence in re-examination as the Commission sees fit. The Commission is not bound by the rules of evidence.
PN839
THE DEPUTY PRESIDENT: Well, I know I'm not bound by them, but they apply, and if there's an objection taken on material as being hearsay it's open for the Commission to exclude that material. And it seems to me that it is hearsay, and on that basis, unless you can convince me otherwise, it will be excluded.
PN840
MS WALTERS: Yes, your Honour. On that basis re-examination ceases.
THE DEPUTY PRESIDENT: Thank you. Thanks, Mr Reardon, you're free to stand down now. Thanks for your evidence.
PN842
THE DEPUTY PRESIDENT: All right, when do you want to do this as far as submissions are concerned?
PN843
MR O'GRADY: Well, your Honour, it appears to me that we may not get through all submissions this afternoon.
PN844
THE DEPUTY PRESIDENT: I can assure you, you won't get through any of them, Mr Lange.
PN845
MR LANGE: Yes. So I'm in your Honour's hands as to when it would be convenient for the Commission to hear those submissions. I can indicate that I would intend to be relatively free. I don't know what the position is of my friend.
PN846
THE DEPUTY PRESIDENT: Yes. When you say relatively brief, what do you mean by relatively brief, Mr Lange, because I've heard that from legal representatives in the past.
PN847
MR LANGE: Yes. I'm not one of them, your Honour. I'll be no more than an hour.
PN848
THE DEPUTY PRESIDENT: I've sort of formed a rule of thumb in the five years I've been here, is that you double any time that a legal representative gives you as being the time he or she intends to take.
PN849
MR LANGE: And the time on cross-examination, your Honour. So I'd be in the Commission's hands on that. The only caveat on that that I have at this stage is that I do have a commitment that it would be impossible for me to move on Friday afternoon.
PN850
THE DEPUTY PRESIDENT: Yes, that's fine. Look, there are a number of issues that I think need to be canvassed in submissions which leads me to the view that it would be foolish to try and fit it into the rest of today. So it seems to me more appropriate that I do list another time for submissions. It occurs to me that one way of dealing with this might be in the form of written submissions, but that will only extend the time in the matter, and I don't intend to put the parties to that sort of an ordeal, or raised it just to scare you. But what about Tuesday the 22nd at 10 am, which is next Tuesday?
PN851
MR O'GRADY: I can do that, your Honour.
PN852
THE DEPUTY PRESIDENT: Mr Lange?
PN853
MR LANGE: Me too, your Honour.
PN854
THE DEPUTY PRESIDENT: Ms Walters?
PN855
MS WALTERS: Yes, your Honour.
PN856
THE DEPUTY PRESIDENT: All right, I'll list the matter for 10 am on Tuesday, 22 August for final submissions. Thank you all, the matter is adjourned.
<ADJOURNED UNTIL TUESDAY 22 AUGUST 2006 [4.18PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
JULIAN CHRISTOPHER DE KRETSER, SWORN PN90
EXAMINATION-IN-CHIEF BY MR LANGE PN90
EXHIBIT #CDK1 STATEMENT OF JULIAN DE KRESTER PN104
EXHIBIT #CDK2 TENDER CONTRACT PN118
EXHIBIT #CDK3 BUILDING PERMIT DOCUMENT GARDNER GROUP PN129
EXHIBIT #CDK4 BUNDLE OF PHOTOGRAPHS PN133
CROSS-EXAMINATION BY MS WALTERS PN175
MFI #1 MAP PN197
RE-EXAMINATION BY MR LANGE PN299
THE WITNESS WITHDREW PN303
DANIEL HODGES, AFFIRMED PN315
EXAMINATION-IN-CHIEF BY MR LANGE PN315
EXHIBIT #CDK5 STATEMENT OF DANIEL HODGES PN325
EXHIBIT #CDK6 ASIC EXTRACT PN348
EXHIBIT #CDK7 LAND TITLE SEARCH PN356
EXHIBIT #CDK8 DECISION OF VICTORIAN BUILDING INDUSTRY DISPUTES BOARD DATED 01/04/2004 PN360
CROSS-EXAMINATION BY MS WALTERS PN398
RE-EXAMINATION BY MR LANGE PN547
THE WITNESS WITHDREW PN551
SHAUN REARDON, AFFIRMED PN696
EXAMINATION-IN-CHIEF BY MS WALTERS PN703
EXHIBIT #CFMEU1 STATEMENT OF SHAUN REARDON WITH ATTACHMENTS PN718
CROSS-EXAMINATION BY MR LANGE PN731
CROSS-EXAMINATION BY MR O'GRADY PN800
RE-EXAMINATION BY MS WALTERS PN832
THE WITNESS WITHDREW PN841
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