RE2007/3087, Transcript of Proceedings [2008] AIRCTrans 35 (29 January 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18013-1

COMMISSIONER WILLIAMS

RE2007/3087

s.772(2) - Appl’n for orders by Commission about operation of Part 15
Construction, Forestry, Mining and Energy Union
and
BGC (Australia) Pty Ltd
(RE2007/3087)

PERTH

10.05AM, FRIDAY, 11 JANUARY 2008

PN1

MS K BOWE: I seek leave to appear on behalf of the applicant in this matter.

PN2

MR G DOUGLAS: I appear for the respondent.

PN3

MR E QUIGLEY: I appear for the Australian Building and Construction Commissioner who is intervening in this matter Commissioner.

PN4

THE COMMISSIONER: Ms Bowe, I'm assuming no one is objecting to counsel appearing all around, so leave is granted to all involved. If you would like to lead off thank you.

PN5

MS BOWE: Thank you Commissioner, I just have a few housekeeping points. I was seeking some guidance from you as to how you saw the matter proceeding given the intervention of the ABCC. I've had some discussion with my friends earlier, I'm just wondering if you expected the ABCC to make submissions and the order of which they can question witnesses.

PN6

THE COMMISSIONER: Sure, well let's perhaps if I can ask Mr Quigley what his view is and I'll consider that.

PN7

MR QUIGLEY: Commissioner I don't think that the ABC Commissioner intends to examine any of the witnesses from what I've seen of the witness statements that have been tendered. The ABC Commissioner would intend to make submissions after that witness evidence has been taken and it's the ABC Commissioner's submissions I think would go to questions of principle and to the framework of the Act as it relates to right of entry and how the Commission might address this particular case having regard to the facts of it.

PN8

The ABC Commissioner's view is very much that the contentions of the parties do depend very much on the facts of the case and we would expect that at the conclusion of the witness evidence that those facts would be such for the Commission as currently constituted to make an appropriate ruling based on that and that our submissions in that regard would be to point to relevant provisions of the Workplace Relations Act and other relevant decisions of the Commission to assist the Commission coming to a proper consideration of the matter.

PN9

We certainly don't intend to be making any submissions ahead of the material to be presented by way of witness statements by the applicant and respondent. I also might say Commissioner is that I wouldn't expect that the intervention by the ABC Commissioner would in any way prolong the case, or delay the consideration of the matter.

PN10

THE COMMISSIONER: Mr Quigley it seems to me and perhaps if I address my comments to everybody at the bar table, that the ABCC has had the benefit of the outline of submissions from both parties, whereas the parties haven't had the opportunity to hear or see the ABCC's submissions. So in terms of sequencing given your views, it would be my inclination that following the witness evidence if you would then go first, explain your submissions then, the respective parties can basically, if there are any issues you raise, that they need to cover in their submissions then they can do so. Would that cause you any concern in terms of the sequencing of it?

PN11

MR QUIGLEY: Only to the extent Commissioner that I was only able to access the respondent's submissions this morning, but that again I don't think that the submissions that we make would unnecessarily prolong the proceedings and I suppose it depends on at what stage the witness evidence concludes. But having a look at the fact that there are four witnesses whose evidence has got to be given, that I would think it's probably likely that the submissions of the parties would probably not be taking place today in any event, but that if they are to take place on Monday, that would certainly present no difficulty as far as that.

PN12

THE COMMISSIONER: Well we'll see what happens Mr Quigley. Okay thanks for your views on that.

PN13

MR QUIGLEY: Thanks Commissioner.

PN14

THE COMMISSIONER: Ms Bowe if I can turn to you. My inclination is as I've suggested in terms of the sequencing, do you have any concerns with that?

PN15

MS BOWE: No Commissioner it's just if I could mention, I know that the ABCC have said that they don't intend to question but perhaps if something is presented in the evidence that they would ask those questions before the cross-examination occurred.

PN16

THE COMMISSIONER: Yes, thank you. Sorry I just want to get Mr Douglas's view on the sequencing issue. Do you have any concerns with the ABCC leading off in terms of submissions?

PN17

MR DOUGLAS: Sir, I have no issue with that. I only note that I don't know whether this is relevant or not, but the submissions for the respondent were sent prior to 5 o'clock according to the orders. So the issue of being accessed this morning was not an issue to do with us.

PN18

THE COMMISSIONER: I understand yes, thank you. Mr Quigley, if I could just take up Ms Bowe's point. If you do hear something in evidence-in-chief that's of concern to you could you please indicate before we move into cross-examination if contrary to your expectations that you do wish to ask that witness any questions and if that does occur, we'll perhaps have a discussion as to the appropriateness of that at the time.

PN19

MR QUIGLEY: Yes, thank you.

PN20

THE COMMISSIONER: Okay Ms Bowe.

PN21

MS BOWE: Thank you sir, if I could seek an order for witnesses to be excluded from the hearing room?

PN22

THE COMMISSIONER: Yes, could the witnesses who are going to give evidence in this other than those who are instructing the respective parties, please leave the court room and you'll be called in due course when it's your turn to come in and give evidence thank you.

PN23

MS BOWE: Commissioner I just have an issue with Mr Smedley who I understand is instructing Mr Douglas remaining in the court room. His evidence - sorry is actually to much of the evidence and it wouldn't be fair for him to be entitled to listen to everybody else's evidence before giving his own. So if I can just make the point that we object to Mr Smedley remaining in the room.

PN24

THE COMMISSIONER: Mr Douglas is it essential that Mr Smedley stay in the room during the witness evidence of the applicant.

PN25

MR DOUGLAS: We would ask that he would on the basis that he is instructing during the hearing and in actual fact there is not in my view, intersection between the evidence of Mr Smedley and the three witnesses of the applicant that would I think prejudice the applicant by him remaining.

PN26

THE COMMISSIONER: Yes, it seems to be the intersection is between the evidence of people Mr Smedley has subsequently spoken to and the applicant's witnesses. Ms Bowe the normal approach is for the parties respectively to have the right to have whom ever is instructing them remain, so it's my inclination that or rather my decision that Mr Smedley can remain during the witness evidence.

PN27

MS BOWE: Thank you. Just the last housekeeping point is in anticipation of the respondent's evidence I have prepared a schedule of objections after going through his witness statement. I'm in your hands as to whether you'd like me to hand them up to you now or when the respondent brings their evidence.

PN28

THE COMMISSIONER: When the respondent brings their evidence I think so it's all done at the same time.

PN29

MS BOWE: Sure, okay, this is an application that arises out of a dispute between the parties over the operation of part 15 of the Workplace Relations Act 1996. Part 15 relates to the union right of entry. The dispute arises from the respondent's refusal to allow the permit holders of the applicant to enter the premises known as the brickworks yard on Kalamunda Road. We say that the permit holders had complied with the requirements of the Act when seeking to exercise their rights under section 760 of the Act when they sought on a number of occasions throughout November and December 2007 to enter the respondent's premises.

PN30

Section 760 gives the permit holder of an organisation to enter the premises for the purposes of engaging in discussions with eligible employees who wish to participate in those discussions. It is also the case that in this matter we are not only talking about past conduct of the respondent but also potential future conduct. The respondent has not only refused the applicant's permit holders entry on to the premises a number of times, it's also stated that it intends to deny future entry on to the site unless the applicant gives certain undertakings, namely that the applicant will not induce or attempt to induce any worker on any site occupied by the respondent to terminate their contract of employment with the respondent.

PN31

It's therefore the case that in considering whether to issue the orders that we seek, the Commission must have consideration for not only the past conduct but also the likely future conduct of the parties. The basis for the respondent's demand for an undertaking is related to an alleged behaviour of a particular organiser of the applicant, Mr Walter Molina. The respondent alleges that Mr Molina had been attempting to poach workers from the site so that they could work for another employer. This claim is denied and even if there was substance to the claim, it would not entitle the respondent to lock all permit holders of the applicant out of site when they lawfully exercise any right of entry.

PN32

The essence of the dispute sir is whether the respondent can exclude the applicant permit holders when lawfully attempting to exercise their statutory right of entry onto the premises for the reasons that have been stated by the respondent. The applicant is seeking orders to address the conduct of the respondent and provide a framework for future entry on to premises. It is submitted that on the facts of the matter, and based on fairness and equity, the order sought should be issued. If you don't have any questions I will call the first witness. I call Mr Walter Molina.

PN33

THE COMMISSIONER: Thank you.

<WALTER MOLINA, AFFIRMED [10.17AM]
<EXAMINATION-IN-CHIEF BY MS BOWE

PN34

MS BOWE: Mr Molina have you made a statement in relation to this matter?
---Yes, I did.

PN35

If I can pass the witness a statement, can you please have a look at that and confirm to the Commission that it's the statement that you've made in relation to the matter?---Yes that's correct.

PN36

If I could ask that that statement be admitted into evidence?

PN37

THE COMMISSIONER: Yes.

EXHIBIT #A1 WITNESS STATEMENT OF WALTER MOLINA

PN38

MS BOWE: Mr Molina, in your statement you state that you attempted to enter the brickwork site on 2 November 2007 is that correct?---That's correct.

PN39

What happened on that day?---Well I arrived on site in I come to the sites supervisor, a person I know as Eugene, basically he refused my access on site, saying that the right to entry that had been submitted by the union was incorrect. While having a discussions with him another organiser Wayne Wildes arrive on site. My understanding was that he wasn't exercising his right to entry, but he had been invited by some crane drivers to collect union dues. When Wayne arrive, he asked the site supervisor for permission to go to a toilet and Eugene agree with that and sent another supervisor with Wayne and I kept on discussing the issue of the right to entry with Eugene. When Wayne came back and he noticed that there were some breaches of the safety on site.

PN40

Sorry he noticed, so when did he notice that there were breaches?---When Wayne went to a toilet I assume that on the way to a toilet he noticed that there were some breaches of the question of safety and he and I proceed to exercise our state right to entry in this instant.

PN41

Did you notify Eugene that you were exercising your right of entry?---We did and we actually invited him to come with us, and we produced our card. He refused to come with us so we walk towards with some of the other workers were performing their concrete pouring.

PN42

Under what provisions of the state right of entry did you seek to exercise that right?---That state right to entry the 49(j).

**** WALTER MOLINA XN MS BOWE
PN43

Which is for the Commission?---The Workplace Relations Act 1979 for health and safety.

PN44

Okay so what happened after you informed Eugene that you were going to perform the inspection?---We proceed to do the inspection and when the inspection and Wayne come to the ground workers, some people we were familiar with when they approach me and ask where all the work was happening. This is quite common, I told them that most of the work was happening in the city and that was basically the conversation.

PN45

How long have you been an organiser for Mr Molina?---10 years in 2008.

PN46

Is it your experience as an organiser is it common or uncommon for workers to ask you about work that's around?---It's very common the members and non members tend to approach union organisers, because we normally know where the work is and they usually ask for where all the work is happening who is paying what, and who are the main contractors involved.

PN47

Okay thank you, if I could take you to 5 November 2007 Mr Molina, and your statement you say you attended the brickwork that day to exercise your right of entry, is that correct?---That's correct.

PN48

Were you permitted to enter the site on that day?---Yes, I was permitted there. I was welcomed by a safety officer working for BGC Vaughan Hinckley and he received me in the car park and he had arrived earlier and he said he had some discussions with Eugene the site supervisor about right to entry and that things were fixed that there were some issues with the union but that they can allow for that and then he indicated to me that I was allowed to remain on site and to meet the workers, which was the purpose of the exercise, but outside the crib room that I couldn't have access to the smoko pad so they allocated some chairs outside the room and in the heat and I accepted the conditions they imposed on me.

PN49

Okay and was anybody from the respondent in close proximity to that meeting?
---The site officers probably 15 metres from crib room and they were in direct vision of what I was doing, so they kept an eye on what I was doing.

PN50

Sure thank you Mr Molina, I have no further questions for this witness.

**** WALTER MOLINA XN MS BOWE
PN51

THE COMMISSIONER: Thank you, yes Mr Douglas.

<CROSS-EXAMINATION BY MR DOUGLAS [10.23AM]

PN52

MR DOUGLAS: Yes, thank you sir. Mr Molina I might just take you back to 2 November which you were speaking about a moment ago. You say that you were greeted by some workers and concrete pump operators who you were familiar with that, is that correct?---That's correct.

PN53

Can you tell me which concrete operators you were familiar with?---Horizon.

PN54

Sorry could you say that again?---Horizon, Horizon Concrete.

PN55

Horizon Concrete, no I mean people, can you give the names of the?---No not specific names, we tend to meet so many people.

PN56

Sure but you recognise the faces?---I recognise the faces.

PN57

You say that they greeted you, can you just take me through that - well first of all were you with anyone at that time, you were with Mr Wildes?---Yes, I was with Mr Wayne Wildes, yes.

PN58

You say that they greeted you, can you just take me through that conversation, good day, Vinnie, what happened?---Yes, basically you know, people tend to say, hi how are you.

PN59

So a particular what I would like is, a particular man said, hi Vinnie, or a group of them just sort of waved, can you just take me step by step through what happened?---Yes, when we walk in where they were pouring the concrete, there was a general greeting, like hey, how's it going.

PN60

Yes?---You know, how's it going boys. One of the ground workers asked, hey Vinnie, where's all the work happening.

PN61

One of the which workers?---One of the ground workers, concreters.

PN62

Concrete pourer, what was he actually doing? What's his job do you remember what he was actually doing?---He was, yes, he was under the course, he was under the concrete boom. Yes he might be one of the concreters.

**** WALTER MOLINA XXN MR DOUGLAS
PN63

Yes, he may or may not be okay, then who spoke, was it you or Mr Wildes that then spoke to them, or both of you in turn?---Yes, we both, you know, it was very the conversation happened very quickly, a normal conversation, nothing special. The workers asked where all the jobs happening, we told them that it was in the city. Basically that was the whole conversation.

PN64

Now have you had an opportunity to speak with Mr Wildes about this particular conversation in any detail since that time?---Not really, we you know, we both were there and obviously we have a different view about what happened there.

PN65

Sure and do you recall who said that the work was happening in the city?---I said that, I actually told them that the work was happening in the city.

PN66

Did you mention to any of the concrete workers at that time, that ICPS were looking for?---That's correct I did.

PN67

It was you that said that ICPS?---Yes, I did.

PN68

Can you recall exactly what you said, or what prompted you to say that, you said there's work happening in the city and then what happened next, how did you move to ICPS, what was the train of conversation?---Some of the ground workers were saying where's all the work happening and I said listen boys in the city and I mentioned I only saw progress coming up and for the concrete pump operators, I mentioned, I said for your industry, I said ICPS is looking for workers.

PN69

So you addressed yourself to people, but did you ask them whether they were pump operators, how did you know that these guys were pump operators, just because they were standing with the pump in their hand?---Yes, basically yes.

PN70

You said for you guys?---Yes for your industry.

PN71

For your industry?---ICPS is hiring workers.

PN72

So you said that, for your industry ICPS is hiring workers, what was the next thing that was said and by whom?---I gave one of the workers my business card.

PN73

Straight away so ICPS is hiring people?---No, no, it was a little chat there, you know some of the other guys ask me what about for concrete. I mentioned some other, you know where the other employers were coming up, then I gave business cards to everybody nobody specific, but I told them, listen if interested give us a bell.

**** WALTER MOLINA XXN MR DOUGLAS
PN74

Do you recall how many business cards you handed out at that time, not that day, just right at that time?--- Maybe probably three business cards.

PN75

Did any of the concrete operators engage you directly about the terms and conditions or anything about ICPS generally?---Yes, this particular guy, which I don't know his name.

PN76

Can you just tell me what he looked like?---No, young, I know that he is a concrete pump operator.

PN77

Yes?---Young guy.

PN78

20, 30?---Probably 30 years old, yes, young guy. He said how much are they paying? He was quite interested, you know that's quite normal, people want to know how much money another company is paying you know, particularly this time, when there's a lot of work.

PN79

Yes?---I said they are paying $30 plus the fruit. In the industry the fruit, means you know - - -

PN80

Yes is that the word you used, $30 plus the fruit?---Yes.

PN81

Okay did you then untack the meaning of that at all, or they were satisfied with that, $30 plus the fruit? You didn't say that's time and a half, that's redundancies, that's you know, any other details?---No, I didn't, I didn't mention. I said listen, how much are you getting paid? He said 25.

PN82

You said how much are you getting paid at BGC?---Yes and he said 25, obviously 30 was better than 25.

PN83

This is the 30 year old guy?---Yes, one of the.

PN84

So it was the one guy you engaged with?---Yes.

PN85

The other concrete operator was just sort of standing there listening?---Yes, pretty much and perhaps that was because this guy was closer to me, that was the one I engaged more.

PN86

At this time Mr Wildes he was just standing there listening while you had this conversation with this one pump operator?---Yes, he was standing there and I seen that he spoke to the other ground workers.

**** WALTER MOLINA XXN MR DOUGLAS
PN87

So he might have started up another - - -?---It was all happening you know, there was more space, so we all there probably six people standing, when they were working. It was very quickly, you know, it didn't take very long, three minutes, five minutes.

PN88

Did this man, the concrete operator that you were speaking to, did he say anything to you apart from questions did he give you any information you know what he was looking for, whether the had worked for ICPS before or anything like
that?---No, I didn't ask him any questions basically the end of the conversation I said here listen, here is my card, if you're interested give us a bell, nothing special.

PN89

So you said to him, there's work in the city for pump operators, ICPS, did you tell them where ICPS are operating?---No, nothing no specifics.

PN90

You didn't tell them that?---No, because if people were interested they can go find in the phone book or what else.

PN91

Well they can ring them when you can't?---Yes.

PN92

As you left you said if you're interested in the job, here's the card, anything like that? Or you just handed my card, give me a call if you're interested, what was the?---The end of the conversation was, all right guys, here's my card if you're interested.

PN93

When you say if you're interested you're referring to the particular work?---In general yes.

PN94

This was your CFMEU card?---This was my CFMEU business cards.

PN95

It says on it union organiser?---Vinnie Molina union organiser.

PN96

Okay fine, if I could just take you to your statement paragraph 23 from your statement you say:

PN97

I believe it is entirely appropriate and is union business to let workers know where they can get better pay and conditions.

PN98

Do you believe that this is one of the purposes of entering on to the site?---Not necessarily, it's not just the purpose. You hold discussions with workers about what is happening in the industry as a whole. As I mentioned before it is quite common the workers tend to ask questions where all the work is, what other companies are paying to compare their own conditions and there is a lot of mobility in the industry. People tend to move around the companies, particularly those who pay better wages and conditions. My business as an organiser is to tell people where they can get better treatment, better wages and conditions. That's what the union business is.

**** WALTER MOLINA XXN MR DOUGLAS
PN99

When you enter on to the site under this permit, you're a permit holder, under 760 of the site which is to hold discussions with employees what is your understanding of what discussions means ? What discussions do you normally hold?---Various you know conditions on site, general amenities, safety amenities, drinking water, coffee, tea the normal stuff in the industry. If anybody got any issues in regard to under payment, superannuation, long service, people tend to ask questions about where the work. They ask how much money should we be getting here. Is there any site allowances, general questions you know, discussions in general.

PN100

In general, but also in specific at this particular site you would get these terms and conditions?---That happens in all sites not necessarily in that one.

PN101

Have you ever spoken with Mr Smedley about the issue of poaching either on the telephone?---Yes we had a discussion with him. Poaching that was the word they used actually.

PN102

What is your understanding of the word poaching?---Trying to take somebody from one position to another, from one company to another I guess.

PN103

So would you say where you would actively - act as contact for another company to try and convince them to come to work?---No, I wouldn't say that, because I wasn't trying to - - -

PN104

No, no, not so much that you did, I'm trying to just - when you say you've had a conversation with Mr Smedley about poaching what did you understand that you were talking about, what is it poaching?---That I was trying to take his workers.

PN105

Okay?---Yes, I understood that.

PN106

Do you recall when it was that you had a conversation with Mr Smedley?---It was probably after the visit on the 2nd I can't remember which day it was.

PN107

Some days afterwards?---Some days after on the telephone, before it was in you know it was public in the newspaper.

PN108

Did you say anything about whether or not you had engaged in poaching, or whether you do engage in poaching to Mr Smedley?---No, I denied.

**** WALTER MOLINA XXN MR DOUGLAS
PN109

You denied?---Yes, I said listen, make I actually explain him, exactly what I've said here. You know there was a general conversation, they guys approached me where the work was happening. I told them where the pours were coming up and I told him, listen I gave them my business card.

PN110

Okay thank you Mr Molina, no further questions.

PN111

THE COMMISSIONER: Ms Bowe?

<RE-EXAMINATION BY MS BOWE [10.36AM]

PN112

MS BOWE: Mr Molina how many people would you say that you know in the construction industry?---Difficult to say, a lot, in 10 years I have met lots of people.

PN113

Would you know the names of all of those people?---No, I know the name of a few, particularly the ones I tend to see more regularly.

PN114

Sure and what's the nature of the construction industry do workers, do you tend to go to the same site and see all the same people all the time?---No, in the area that I look which is from Midland to Armidale there are probably 100 construction sites. If there are between 20 to 40 workers at each site, that's an enormous amount of people, but there are some familiar faces.

PN115

Sure just to go back over who greeted who, you say that there was a general greeting and that it was the BGC employee that asked about the work, is that correct?---That's correct.

PN116

Is it common for organisers to know which companies are hiring and you know where the work is?---Yes, of course, it is common because we've got a relationship with several companies. We know where they are working and we know roughly how much they are paying.

PN117

Is it common for workers to contact you and ask you (a) about where work is and (b) whether or not you could help them get something?---Yes, most of the you know, most of the conversation and phone calls, we receive is from people who is looking for work, people who are still employed but they are still looking for something better.

PN118

Sure what was your purpose for exercising your right of entry on 2 November?
---Basically I wanted to hold discussions with the employees who were on site and that was impossible on the particular day.

**** WALTER MOLINA RXN MS BOWE
PN119

Sure and finally was it your intention to exercise and poach BGC employees that day?---No absolutely not.

PN120

I've no further questions.

PN121

THE COMMISSIONER: Thank you Mr Molina, you're excused.

<THE WITNESS WITHDREW [10.38AM]

PN122

MS BOWE: Thank you sir, if I could call Mr Wayne Wildes.

<WAYNE JASON WILDES, SWORN [10.39AM]
<EXAMINATION-IN-CHIEF BY MS BOWE

PN123

MS BOWE: Mr Wildes have you made a statement in relation to this matter?
---Yes, I have.

PN124

If I can hand you the statement and if you can please have a look at it and confirm to the Commission that it is the statement that you made?---Yes that is.

PN125

Sir, if I could ask that to be admitted into evidence.

EXHIBIT #A2 STATEMENT OF WAYNE JASON WILDES

PN126

MS BOWE: Mr Wildes in your statement you say that you attended the brickwork site on 2 November, is that correct?---That's correct.

PN127

What was the purpose for your visit on that day?---I had received a phone call from a crane driver working at the facility there he'd asked me to drop in and pick up his union dues on the crane. I'm the organiser responsible for the crane, so I'm his point of contact.

PN128

Sure is it common for members to call you and ask you to call by and pick up fees?---On average, I'd say maybe 10 times a week I receive phone calls of a similar nature.

PN129

What time did you arrive on site?---I don't remember the exact time, but I was trying to get to the site at the lunch break, so it would have been I think around quarter past 12, but I may stand corrected on that because it wasn't a high priority as such.

PN130

What happened when you arrived?---When I arrived there was already a union official on the site, Walter Molina and he was engaged in what appeared from a distance to be a fairly heavy conversation with two of the BGC site managers. I exited my car and locked it and walked across and found Walter in a very confrontational situation with a gentleman I later found to be known as Eugene.

PN131

What happened next?---I listened to what was going on for a couple of minutes but I needed to use the site facilities as such and I interrupted their conversation and asked Eugene if I could go to the toilet, Eugene said yes I could and instructed the second gentleman with him to accompany me to the toilets.

PN132

So you went to the toilet?---Sorry?

**** WAYNE JASON WILDES XN MS BOWE
PN133

So you proceeded to the bathrooms?---Yes, we both proceeded around the back of the site managers officer to where the crib facilities are the latrines, on the way there I took notice of all things that were of concern to me. I used the latrines after that and returned back to the site office with the supervisor.

PN134

Mr Wildes you say you noticed several things that were of a concern, can you elaborate on that?---Yes, directly behind the site supervisor's office, there was a man using a brick saw and it didn't have any electrical tagging on the leads. Brick saws have a hose connected to them, because they've got a diamond blade and there's a lot of water around it, so they can be a very dangerous machine if they are not tagged properly. I also noticed a gentleman a worker on the site, walking across the yard and he had thongs on. There was two men in a telescopic boom EWP we call them, elevated work platform and neither of those men were wearing harnesses which they have to do if they're going to use that equipment. I also looked across to where the concrete pour was occurring and noticed at least six workers over there underneath the boom without hard hats on. I did notice that several places there was safety bunting that had been erected around pits in the ground and penetrations and the bunting was all crushed to the dirt and all these things to me, went to a very low standard of safety on site.

PN135

So what happened when you returned from using the facilities?---When I returned back to the supervisor's office, I informed him that I had seen several breaches of safety that I considered to be very serious and informed him there that I wanted to access the site to have those situations remedied.

PN136

How did you intend to access the site?---At that point in time, the man who became known to me as Eugene said that it was none of my business and to not worry about it. I told him that it was my business, it was part of my duties as an organiser and that if necessary I would exercise my state right of entry to get on site.

PN137

Did you exercise it?---Eugene at no stage asked me for my right of entry details, but I did produce them, and I did show them to him, he handed those to another gentleman and I believe he went and photocopied them, after that he told me then that he would not be granting access to the site and I said that he did not have the right to refuse me entry under those grounds. I asked him to accompany me on to the site so that we could get the breaches remedied. He told me there that he would call the police if I entered the site any further. I told him then that the police would back up my position and offered to call them myself.

**** WAYNE JASON WILDES XN MS BOWE
PN138

What happened after this conversation?---After that he stormed off into his office Vinnie Molina then exercised the additional information that Vinnie had just witnessed. I believe went in there and exercised his state right of entry, again we tried to get the supervisor to come with us, because it's very difficult to fix safety issues without somebody in control of the workplace present. They refused so we entered the site to conduct what we call a safety walk.

PN139

So you conducted a safety walk?---Yes, we did.

PN140

What happened whilst you were on the safety walk?---We basically walked around the site trying to identify issues and to photograph them. We were approached by several of the workers. We went immediately to the concrete pour one of the most dangerous situations in my opinion, was having the workers underneath it a concrete pour boom, without helmets on, so we went straight to that section first and when we approached the workers greeted Vinnie fairly heartedly, it was obvious to me that they knew him, either on a personal level or a professional level. They welcomed him and asked him basically if he knew where any work was and asked him what was going on around the traps and several questions along that line.

PN141

Mr Wildes, is it your experience as an organiser is it common or uncommon for workers to approach organisers and inquire about work and you know where's the work, what's being paid?---It's very common, it would be one of the first conversations we have with most workers. Workers I think see it as a way of building a relationship with us as organisers to get a conversation started as such. They also seem to want to know where the work is because we do have a very transient sort of workforce in our industry and as soon as one job ends, they need to go somewhere else to work. So they always would like to know where there is jobs going and especially what the going rates are, so that they know they are getting paid the market rate as such.

PN142

Mr Wildes have you met BGC employee Mr Smedley, before?---I have yes.

PN143

Did you see Mr Smedley on the site on 2 November?---I did not.

PN144

No, I have no further questions at this time.

**** WAYNE JASON WILDES XN MS BOWE
PN145

THE COMMISSIONER: Thank you, yes Mr Douglas.

<CROSS-EXAMINATION BY MR DOUGLAS [10.48AM]

PN146

MR DOUGLAS: Thank you sir. Mr Wildes, now I just want to go back over the approach to the concrete workers. Could you just take me through that step by step. So you walk up and there's the concrete workers and you say that a number of them said something to Mr Molina, hi Vinnie, whatever, can you just walk me through what happened step by step, someone said something, someone said something else?---As we approached the workers although they didn't actually stop working they paid particular attention to Vinnie they were very pleased to see him. It was obvious to me that they did know him fairly well.

PN147

Yes?---I continued to look around the concrete pour at some of the more dangerous aspects. From what I could see there were star pegs in the ground for example, that didn't have caps on them and I continued to sort of move around and look at that. The workers greeted Vinnie hi how you going Vinnie, haven't seen you for a while, good to see you on site, what's up. What's been going on, you know, any work about?

PN148

And what did Vinnie say to the question any work about ?---Vinnie said that there is work about, especially in the city, there's always work about. He said there that in particular a company by the name of ICPS is chasing concrete operators, which is what they were doing for their job.

PN149

Vinnie raised, they said where is work going, Vinnie said in the city and what he directed the concrete pump, was he talking to concrete pump operators at this time?---Yes, he was.

PN150

How many were there?---There was about six gentlemen, I could be wrong it could be seven, or it could have been five. But it was approximately half a dozen.

PN151

They were all concrete pump operators?---They were all working around the concrete pump.

PN152

Yes?---The way it works, is generally you've got one man that directs the pump itself, he's got a remote control unit so he can steer the pump up. There's another man there that holds on to a vibrator which vibrates the concrete in and then there's just four or five men generally that just push the concrete out.

**** WAYNE JASON WILDES XXN MR DOUGLAS
PN153

Okay so just two sort of skilled guys that are operating machine and other guys that were just doing some general patting it down and so on?---Yes, I would say that would be it.

PN154

When he was talking about, you say that he mentioned ICPS in the city, now you weren't involved in this conversation you were just listening, is that right?---I was party to it in that I was standing there and I could hear everything that was said.

PN155

Have you had a chance to discuss this with Vinnie afterwards to sort of go over what was said?---I have had an opportunity but I haven't actually done that. I mean we do work together quite regularly but it wasn't an issue there that was worthy of discussion.
Okay so you're standing there while Vinnie is basically having the conversation with the concrete workers about ICPS, so he says there's work in the city in particular at ICPS, now what did they say? Was it just the two skilled workers here or was it the whole group of them?---No, they had all turned their attention to Vinnie, although they hadn't stopped working, they'd all adjusted their positions so that they could you know, they were facing front or towards Vinnie. They started asking questions about what kind of conditions, what kind of rates, how much work.

PN156

Can you maybe just step me, I know it's a bit laborious, but maybe step me through this. Was it one of the - let's call the two boom operators as I understand it, they're the ones that are operating the actual pumps. You say there's one guy operating the vibrator, one guy operating the boom, the two boom operators and then there's about five other guys. Was it the boom operators that said to Mr Molina asked him questions about the positions?---I can't say there that I was actually looking at the faces of the workers, so I could identify who said what.

PN157

Okay sure?---But the questions that I heard that were asked were once Vinnie said there was some work available at ICPS, one of the workers asked him how much it was paying per hour. Whether or not it was on a union EBA and for rates and conditions. Vinnie responded by saying it was paying approximately $30 per hour and they were working on a 36 hour week before and I believe his exact words were, with all the fruit.

PN158

Did any of the concrete operators then engage with Mr Molina about those conditions, or about ICPS you know what's it like sort of thing?---I think at that point Vinnie said that if they were interested any further that they could contact him at any stage and he would give them further details and I believe then that he did give a couple of them his business card.

**** WAYNE JASON WILDES XXN MR DOUGLAS
PN159

Did you note who he gave the business cards, and how many?---I think it was two, I think, but as you can appreciate there I was trying to remedy safety situations and that conversation I seemed to be fairly superfluous at the time.

PN160

So you actually didn't say a word?---No, I didn't speak.

PN161

So just to get back to my earlier question did any of the workers actually ask any questions about ICPS and where it was, any statements about the company
itself?---I don't I can't recall, anyone asking for directions to the company as such. I can't recall Vinnie Molina actually offering directions to the company.

PN162

So if you don't recall whether there was any discussions about where the site was?---Yes.

PN163

Do you recall Vinnie mentioning which site?---I do recall him saying there that there was work in the city.

PN164

Only in the city, he didn't mention any other site?---I don't recall him, I'm not saying there that he didn't say it, I'm just saying there if it was there I didn't hear it.

PN165

The other question I wanted to pick up, did any of the concrete workers say anything about ICPS, like make any statements about it, rather than asking questions whether they'd worked there before, or you know?---I do actually recall now that one worker and I think he was the actual operator of the boom I think he did say that ICPS was a good company.

PN166

That operator of the boom you don't know his name?---No, I didn't know the names of any of the gentlemen and I don't believe that I've met any of them before, none of them seemed to recognise me, and I didn't recognise any of them.

PN167

Big guy, young guy, old guy, tall?---All those guys were very fit most of them were probably in their late twenties, I should imagine. They were all dirty and covered in concrete, it was a very hot day, they were sweaty but they were all fairly young, fairly fit sort of guys.

PN168

So a young, fairly fit guy said something like, yes, ICPS they're a good company?---I do, now that I'm thinking about it, one of - and I'm fairly certain it was the concrete boom operator himself, who said yes, ICPS are a good company. It is a very small industry and they do transfer between companies quite regularly.

**** WAYNE JASON WILDES XXN MR DOUGLAS
PN169

Okay now at paragraph 22 of your statement the last statement you make:

PN170

I also believe it is entirely appropriate and is union business to let workers know where they can get better pay and conditions elsewhere.

PN171

You were there as you say at paragraph 12 you went to the site, and you said earlier, to exercise your right, to do a safety walk, you were exercising your right under the state act to investigate safety breaches, that's correct?---I didn't enter the site to exercise a right of entry. I had come at the request of a worker to pick up his union dues. I went straight to the supervisor's office to ask permission to facilitate that.

PN172

I understand that, I can completely understand that you didn't arrive there to do that?---Correct, now I had no intention of exercising any right of entry when I arrived on site. I was intending to work cooperatively with the BGC staff, my full intention was to be off site within 10 to 15 minutes. But as I said when I got to the site I found what I describe as a nasty incident taking place. It was not my intention there to inspect the site for safety breaches. But when I used the lavatories I notices things there that in my mind were a clear and present danger and it is part of my role to make sure that these things are pointed out to the supervisors on site.

PN173

I understand that, look the question is when you eventually went on site to do the safety walk, if you say what happened was that there was a stand off and in the end you showed your permit you said I have a right to enter the site, to do a safety walk because I've identified breaches, that's your position?---Correct.

PN174

Correct thank you, so when you were there you were there on a safety walk, when you came across the concrete workers you were there on a safety walk under the state act?---That's correct.

PN175

Yes so when you say it's entirely appropriate and it's union business to let workers know where they can get pay and conditions, that's not part of what happened? That's not part of the union business that's a different thing to the safety walk? There's the union business to let them know about pay and conditions in your view and then there's the safety walk, you don't see those as being one and the same?---I see the well being of the workers mental state to be part of occupational health and safety. If a worker does not feel secure in his job, that is not conductive to a healthy worker as such. It was not our objective to go and inform workers about other companies as such. But if they ask a question there's no reason why - I wouldn't see any reason why we can't answer their questions. We are employed by the membership as such they pay our wages, and if they ask us for something a simple question like that, I wouldn't see an issue in answering it. At the time Eugene and another gentleman came across and they didn't seem to have any problems at the time. I believe there that they'd receive further instructions from their bosses, that they'd been told to accompany us on the walk, and they never raised any concerns about the issues at the time.

**** WAYNE JASON WILDES XXN MR DOUGLAS
PN176

So just to clarify, you were there on a safety walk but then other union business arose as a result of your conversations?---I wouldn't say it's other union business.

PN177

So you put it under the as part of the safety walk in your view?---Yes in my view workers mental health and well being job security, all come under occupational health and safety. In that if you're not feeling secure in your job, if you're feeling like you might lose your job and you might be out of work the next day, I mean people have to pay mortgages and feed families.

PN178

Yes I understand that?---These are an important part of occupational health and safety and workers mental health.

PN179

Thank you Mr Wildes, nothing further.

<RE-EXAMINATION BY MS BOWE [11.00AM]

PN180

MS BOWE: I just have a few more questions for you. Mr Wildes have you conducted safety walks on other sites in the process of your employment ?---Yes, I have.

PN181

Is it common when doing a safety walk that say whilst carrying out those activities of the safety walk a worker would approach you and say hey Wayne what's going and you know talk to you about other matters?---It is a common way for workers there to try and build relationships with the organisers and to try and find out information, yes.

PN182

Okay so you wouldn’t say it's uncommon, you are doing your safety work, and they say, hi how you going?---If for example, if it's close to the final for the football, or cricket, we use it as a mechanism there to gain the workers trust to get them talking as such, break down the barriers and after that they will start to tell us more and more about some of their concerns for safety on the site.

PN183

Sure just if we can go back to workers inquiring about work elsewhere, have you personally been asked you know on any site, you know where's the work, what's going on?---Yes, it's a very common question that workers ask.

PN184

Have you given out business cards to people to contact you?---Yes, I have.

PN185

You have, is it common for an organiser to know where the work is and what specific companies, where they are working, and you know whether or not they need people?---Yes.

**** WAYNE JASON WILDES RXN MS BOWE
PN186

It is, okay I've no further questions sir.

PN187

THE COMMISSIONER: Thank you Mr Wildes, you're excused.

<THE WITNESS WITHDREW [11.02AM]

PN188

MS BOWE: Thank you sir, if I can call Phillip Kennedy.

<PHILLIP SHANE KENNEDY, SWORN [11.02AM]
<EXAMINATION-IN-CHIEF BY MS BOWE

PN189

MS BOWE: Thank you Mr Kennedy, Mr Kennedy, have you made a statement in relation to this matter?---Yes.

PN190

If I can show the witness the statement, Mr Kennedy, if you could have a look at that and confirm to the Commission it's the statement that you've made?---Yes.

PN191

If I could have that admitted into evidence sir.

EXHIBIT #A3 WITNESS STATEMENT OF PHILLIP SHANE KENNEDY

PN192

MS BOWE: Mr Kennedy in your statement you say that you attended the brickworks site on Tuesday 13 November, is that correct?---Yes.

PN193

What happened when you attended that site?---I attended the site on the morning break. Went into the site office and informed Mr Smedley and Eugene.

PN194

What was your purpose for attending site that day?---To hold discussions with members and potential members.

PN195

Had you made the respondent aware of the fact that you would be holding discussions?---Yes.

PN196

In what way?---By the right of entry.

PN197

So when you say by the right of entry, what do you mean by the right of entry?
---The right of entry was submitted by our office.

PN198

Right like you submit, now you arrived on site and you met Mr Smedley and a gentleman that you say whose name is Eugene, what happened then?---When that happened, I spoke to them then I you know, met them shook their hands, showed my right of entry, federal right of entry, and he was happy with that and then I - he showed me where the smoko shed, told me to go over towards the smoko shed, I could hold discussions with them, the members and potential members and he asked me not to have the inside the smoko shed, have it outside. So I agreed with that and the blokes were in the shed opened up the shed door, spoke to the - opened the shed door and said to the fellows I'm here to hold discussions with you and everyone come out of the shed except one person.

**** PHILLIP SHANE KENNEDY XN MS BOWE
PN199

What happened once everybody came out of the shed?---We just had our normal discussions. I spoke to the fellows about the forms of high risk work, the new changeover certificate.

PN200

And were ay of the respondents, management, supervisors, were they anywhere near where you were holding the discussion?---Yes. Paul Smedley and Vaughn, they had a video camera and they were about 30 metres away from us.

PN201

Mr Kennedy, if I can take you to 15 November, which is just a couple of days later. In your statement you say that you attended the brickworks' site on that day, is that correct?---The 15th, was that the Friday?

PN202

Should be, yes, Tuesday is the 13th and Friday - sorry, yes, the 16th - sorry, excuse me. So you attended the site on 16 November, the Friday?---Yes.

PN203

And what happened when you attended the site?---I turned up to site. I put a 24 hours' notice on Thursday and that was sent at, I think, 11.15. As I entered into the premises, went into the site office, spoke to Eugene and he said to me, "No, you can't come on because the right of entry is incorrect. You have to give 24 hours' notice."

PN204

Sure, and to the best of your knowledge you had given the 24 hours' notice?
---Yes. Our fax was 11.15 and he was saying they didn't receive their fax till 1503 and the briefing was at 1.15.

PN205

So you put your right of entry notice in. What was the purpose of attending site that day?---The purpose of attendance on that day was because I didn't have the forms with me for the fellows to produce the high risk work, eg. crane operators, riggers and their tickets have to get changed over and with that there's time schedules on the thingo, so I explained it to the fellows earlier in the week and that's why I was coming back to hand out these forms, fill them out and explain where they dropped them back into WorkSafe and with the amount of money .....

PN206

So you say your access was refused. What happened after your access to the site was refused?---I rang up the assistant secretary and I said to him, "They're refusing" - well, before that, Eugene said to me, you know, refused right of entry, spoke to Paul on the phone and - - -

PN207

Sorry, when you say Paul, who do you mean?---Paul Smedley. I spoke to Paul on the phone and he said, you know, it wasn't enough notice and all this and he said, "You can hold it out in front of the boss' offices", right out the front door, and you've got two major contractors and VGC supervision and blokes felt intimidated if they come around there in that way.

**** PHILLIP SHANE KENNEDY XN MS BOWE
PN208

So what happens after - so, sorry. Mr Smedley said that you could hold the meeting out the front of the site office?---Yes. Right out in front of their front door.

PN209

And your response was?---My response at the time would be it would be intimidating for the people. The people won't come under there and I rang up our assistant secretary of the union, Joe McDonald, and he just said to me, "Just leave site."

PN210

Did you leave site?---Yes.

PN211

Paragraph 32 of your statement which you have in front of you, you say you arranged a right of entry notice to be sent to the respondent for each day of the week beginning 19 November for five consecutive days. Is that correct?---Yes.

PN212

Why is it that you intended to enter the site on each of these days?---On the Friday when I was talking to Eugene about the situation he said to me, "There's not going to be many people there on the Monday and Tuesday" - he just said to me, you know, "do what you've virtually got to do in terms." Then - because all the headaches of trying to get on and if you get called for other matters, I just said to him, well, I'll put it in for the whole week then.

PN213

When you put those right of entry notices in, what were the - so you put your right of entry notice in. What was the purpose for wanting to exercise your right of entry?---Hold the discussions with the fellows about this changeover of their certificate, which is a big thing, WorkSafe, because if they haven't got that ticket changed over, they will not be able to perform their normal duties.

PN214

Now, in your statement you say you attended site on 19 November. Is that correct?---The 19th was a Monday, yes.

PN215

And what happened when you attended site?---I attended site. Pulled up to
the - come down Kalamunda Road, pulled up into the gate and the gates were locked and Paul was there at the front gate and said I'm not allowed in, I was locked out.

PN216

Sorry. Just, Paul - - - ?---Smedley.

PN217

Sure. So Mr Smedley said you're not allowed in. What happened after that? Did he give you a reason or did he just say, "You're not allowed in"?---At the time the right of entry was incorrect and he just refused me right of entry, he said that was incorrect.

**** PHILLIP SHANE KENNEDY XN MS BOWE
PN218

Did you ask why it was incorrect, why Mr Smedley thought it was incorrect?
---Yes. He just told me it was incorrect. To my relief that we put the day, date and time on the entry.

PN219

Sure. Mr Kennedy, have you received any training regarding your obligations under the Workplace Relations Act relating to right of entry?---Yes.

PN220

What's your understanding of the requirements that you need to exercise a right of entry?---The exercise of the right of entry, we submit 24 hours' notice, date and the time, the time of the break, whether it's a morning break or lunch time break, and not - up to 14 days to give notice.

PN221

I have no further questions at this time.

<CROSS-EXAMINATION BY MR DOUGLAS [11.14AM]

PN222

MR DOUGLAS: Mr Kennedy, now, just to back to 12 November. You've been directed to have your discussions out the front of the smoko shed, rather than in the smoko shed. You were just talking about that a moment ago?---That was the Tuesday?

PN223

The 12th would have been - yes, that's right. Yes, it's the one where you say that Vaughan and Mr Smedley are standing back some 30 metres with a video camera. So paragraph 12. Can you just give me a better understanding of the way it's set up. So you're standing here. About how many workers are you talking to?
---Well, most of - on the site on the day except one what was still sitting inside the smoko shed.

PN224

So I don't know, is that 10, is that 20, is it 50?---I don't know, probably in between 15 or so. Just roughly.

PN225

Yes, sure. So it's a smallish group of people. You will be telling them about, I think in this case, it was the high risk work, is that right?---The high risk.

PN226

And they've be asking you questions about that, there's an exchange?---Yes.

PN227

Mr Smedley and the man, Vaughan, were standing some 30 metres away. In your view would they have been able to hear what was going on?---It's hard to say, you know. It depends how loud people are when they're talking.

**** PHILLIP SHANE KENNEDY XXN MR DOUGLAS
PN228

At paragraph 35 of your statement you say that Mr Smedley had refused you access to the site, I've got here, in the third line, "and claimed that I was trying to poach workers from the site." Can you just give me that conversation a bit more? I mean, Mr Smedley said, you're not allowed in, you're trying to poach workers, was it something like that, can you give me the - - - ?---On the day - I turned up on the Monday. There was some remark about poaching workers. I don't
know - he was there but he knew I wanted to do the high risk, performance high risk work to the blokes and he declined me right of entry and said it was - it
was - you know, it was incorrect.

PN229

But you say here that he claimed that you were trying to poach workers. I just wanted to get the exchange there, how that happened, what Mr Smedley said, what you said in response, do you recall that bit?---No. At the time I told him I was doing the application forms. Whether he's taken application forms, whichever way, but the application forms and he was under the understanding of them being to do the high risk, whether he's taken that as poaching or whatever he's - - -

PN230

Okay. Well, is it or is it not true that he claimed you were trying to poach workers, that's really what I'm trying to get at?---Well, he was trying to state - yes. Virtually I think to my ability, like, we were sort of one side of the fence and the other side of the fence. Like, we weren't up close and personal.

PN231

But he didn't say to you, "You're trying to poach workers, Phil, so I'm not going to let you on"?---Well, he was claiming that, but he was claiming incorrect right of entry.

PN232

Okay. There are two issues here. There's the right of entry is incorrect, I'll come to that in a minute. Then there's the poaching, okay. Now, did he say to you anything about poaching and that you weren't being allowed on because you were poaching?---Well, he was saying about poaching workers, right?

PN233

Right, but do you say that you poached workers?---No. He was - whether he's taken this application form, I don't know, for the high risk work of poaching workers, submitting a form - - -

PN234

Okay?---Okay? Submitting the form to the fellows, they fill it out, I tell them how much it is. They send it off to WorkSafe myself but he did state the right of entry was incorrect.

**** PHILLIP SHANE KENNEDY XXN MR DOUGLAS
PN235

I might come back in a minute to the poaching just one more time, but let's go with the incorrect. He said to you - and I think she said something about
this - "Mr Smedley also claimed that the right of entry notice was incorrect. However to the best of my recollection he did not state why he claimed that it was incorrect." You were just asked whether you asked for the reason. I'm not sure that I got your answer to that. Did you say, "Why is it incorrect"?---I just asked him why is it incorrect and he said, "No, it's incorrect." He wouldn't give me a direct answer.

PN236

And so you say, "Why is it incorrect, Paul?" He says, "No, it's incorrect." And you say, "Okay"?---No. He said to me, I asked Paul, you know, why aren't I allowed on, and he said because whatever this poach thing was and then he said to me, "The right of entry is incorrect." And then I asked him the question, "Why is it incorrect?" and he said, "It's incorrect." He couldn't give me direction why it was incorrect.

PN237

But that was it, it was just that question, answer. You didn't say, "No, Paul. In what way is it incorrect?" You just moved on from there?---Yes, because to
my - the best of my knowledge, doing my right of entry training, everything we done to do that right of entry was correct.

PN238

Final question on the poaching. You just said then that when you said you refused entry, he mentioned something about poaching. I just wonder if you can recall what his statement was, maybe just give a bit more clarity about what he said about poaching, is what I'm trying to get to?---He's just claiming about poaching.

PN239

Do you remember the words or something similar to the words? You know, did he say something like, "Some guy's been poaching, you've been poaching, CFMEU poached," do you remember what was said?---He just said about poaching, poaching workers, yes.

PN240

About poaching. Okay. So you don't recall exactly what he said about it, you remember the word "poaching"?---Yes.

PN241

Just finally the notice that you issued on 16 November for five consecutive days. Now, there was some questioning about that a moment ago and I understand
that - I think you were told that on Monday there would not be many people on the site. So for that reason it may be better to issue the notice for Tuesday. Did you - can you tell me - and you also said that the reason you needed to go was in relation to talking to the guys about this high risk work. Why then did you have the notice for Wednesday, Thursday and Friday if you were able to go in on Tuesday and do that?---Well, on the Monday because some blokes mightn't turn up on the Monday, they might have the day off, they might take the Tuesday off, you know, these are important pieces of documents you need to get out to the blokes who hold these high risk tickets, right, and if you miss one of them, you know, you're trying to do the right thing by people so that they're aware of these changeover tickets.

**** PHILLIP SHANE KENNEDY XXN MR DOUGLAS
PN242

So it was your intention to come on each day so that you made sure you caught everyone, you're going to turn up five times and just make sure you got everyone that way?---No. That's incorrect. If I could - - -

PN243

Yes?---If I did happen to get called away for other business with other people, right, I would ring up Paul and just say, "Listen, I won't be able to turn up."

PN244

So it's your practice if you're not going to tell you'd normally tell - you'd tell them, or not?---It's the practice of telling them you're not going to turn up?

PN245

Yes?---Yes, but sometimes you get held up on the spot and you know, you're there having a discussion with someone or something about something and you might have your phone off and, you know, you - - -

PN246

Yes. So I'm not just sure I got quite - I don't quite understand. Monday you intended to turn up?---Yes, I did turn up on Monday.

PN247

Yes. Tuesday you intended to turn up or only if there was not many people on Monday?---No. On the Monday I intended to turn up. On the Tuesday I was hoping to turn up, but I got other business had happened.

PN248

Yes, and on the Wednesday, were you going to come each day or were you going to sort of pick one of the days, that's what I'm getting at, when you were issued for five days, was it the intention to come each day or to pick a number of the - pick one or more of the days?---Well, because on the Monday Paul claimed the right of entry was incorrect.

PN249

Yes?---Right? I re-submitted one for the Wednesday.

PN250

Yes, and did you go on the Wednesday?---No, because I got called off to other union business.

PN251

My question is more about your intention when you issued it. Was it your intention when you issued the notice to come on each day or to pick one of the days or more of the days, depending on how your schedule worked out?---Yes, but the right of entry was put in to hold the discussions about the performance of high risk work.

PN252

So your intention was to exercise that right on one or more of the days, not on each of the five days?---The intention was for the five days.

**** PHILLIP SHANE KENNEDY XXN MR DOUGLAS
PN253

Okay, thank you?---But on the intention of that five days was, I was having troubles getting on to the site and approved it on the Friday when I turned up with my right of entry.

PN254

So it was an insurance, if you missed a day, you could come back the next day?
---Yes, or if they, you know, were trying not to let me on, you know - - -

PN255

You could have another crack the next day?---Yes, it was okay for the next day, but when he claimed it was incorrect, that's when we re-submitted another one for the Wednesday.

PN256

Thank you, nothing further.

<RE-EXAMINATION BY MS BOWE [11.25AM]

PN257

MS BOWE: I just have a couple of questions for you, Mr Kennedy. Regarding the five consecutive days, your notice, that you intended to enter for the five consecutive days, what was the reason that you intended to enter the premises?
---On the five days was to hold discussions with the potential members and do the right - the high risk performance work.

PN258

And the high risk performance work, that's a licence that they need to have, is it?
---Yes, it's a licence. A lot of people were confused, they thought it was $71 for each ticket and explained to the fellows, it's only $45 per ticket for the one ticket, it becomes a photo ID, it's like a passport or car licence.

PN259

Is it important for the workers to have that?---Well, if they haven't got that ticket and there's an accident on the job site where they're performing, they're not covered.

PN260

And at any stage when you were exercising your right of entry and you were permitted access to the site, did you attempt to induce any BGC employee to terminate their employment with BGC and take up employment elsewhere?---No.

PN261

I have no further questions, sir.

<THE WITNESS WITHDREW [11.27AM]

PN262

MS BOWE: I have no further witnesses, sir.

PN263

THE COMMISSIONER: Mr Douglas, any assessment on how long Mr Smedley is going to be? You've got plenty of time, but - - -

PN264

MR DOUGLAS: It will depend on the cross-examination, sir, but I would think we'd have a fighting chance of getting it done before lunch.

PN265

THE COMMISSIONER: What I suggest we do is we'll have just a brief adjournment for 10 minutes and then we can resume Mr Douglas with Mr Smedley's evidence.

PN266

MR DOUGLAS: Thank you.

<SHORT ADJOURNMENT [11.27AM]
<RESUMED [11.40AM]

PN267

MS BOWE: Sorry, sir, if I can just go back to the schedule of objections that I raised earlier.

PN268

THE COMMISSIONER: Yes.

PN269

MS BOWE: I've provided my friends with a copy of the schedule and I would hand that up for you. I'm in your hands as to how you wish to deal with the objections.

PN270

THE COMMISSIONER: If I can perhaps have a look at them first.

PN271

MS BOWE: Yes, sure, sir.

PN272

THE COMMISSIONER: In terms of those from paragraphs 2 to 19 I think I will just accept that the Commission has noted those objections and if either party wishes to address those issues in their submissions they can. The final objection to annexures PJS1, 2 and 4 of Mr Smedley's witness statement being admitted into evidence, Ms Bowe, could you explain what your objection is to those, please?

PN273

MS BOWE: Annexures PJS1 and PJS2 are statements from who are believed to be BGC employees and PJS4 is an affidavit of a Mr Graham. I don't see that either Mr Parsons or Mr Graham are on the witness list for the respondents. There are allegations that have been made in those annexures and given that they're not being called, the applicant has no chance to test those allegations. They're not the evidence of Mr Smedley. It's Mr Parsons and Mr Graham attempting to give evidence.

PN274

THE COMMISSIONER: Yes, thank you. Mr Douglas, what's your view about that particular objection to those three annexures?

PN275

MR DOUGLAS: Sir, the objection to the three annexures is essentially the objection that takes place all the way through, is that this is hearsay evidence. What we say is that what the respondent is trying to show, and the primary thing that the respondent is trying to show is that the respondent believed on reasonable grounds that this particular poaching behaviour was taking place and in each case these statements are the statements of the workers who we say were attempting to be poached.

PN276

Now, we are not trying to include this hearsay evidence for the purpose of demonstrating the truth of what is said by Mr Graham and by Mr Parsons. We are trying to show that Mr Smedley, when refusing entry to the applicant believed on reasonable grounds that this behaviour was taking place and it's trite law, but I refer you to authorities which say that in that - that this is an exception to the hearsay rule, that where evidence is being used, where hearsay evidence is
being - or what would otherwise be hearsay evidence, is being used for the purpose of showing the state of mind of a witness, or of a party. It is not hearsay, and I refer you to Cross on Evidence, paragraph 31010, it fleshes this out in some detail, and in particular the authority of Subranium v Public Prosecutor 1956, 1WLR 965 which was applied by the New South Wales Court of Appeal in
R v Murphy, 1985, 4 NSLWR 42.

PN277

THE COMMISSIONER: Thank you, Mr Douglas. It's my intention to allow the annexures. The issues of the objections in terms of the nature of those annexures and what appears, as Ms Bowe has pointed out to me, the fact that the employees in question are not going to be called which means their evidence, to the extent that it's included in Mr Smedley's witness statement, cannot be tested is something that I will obviously bear in mind and it's obviously something Ms Bowe and you may wish to make submissions to me in terms of what considerations I should give to that, and I'm sure, Mr Douglas, you're conscious of the disadvantage that not calling those witnesses places you in, but that's a decision for yourselves.

PN278

So I'll allow the annexures, but obviously there are some issues that I will have to consider in terms of what's contained therein. I think that deals with the objections. So Mr Douglas, if you'd like to make a brief opening if you wish.

PN279

MR DOUGLAS: Thank you, sir. The respondent's case, in brief, is that the evidence will show that the respondent believed on reasonable grounds that the applicant has used its right of entry under part 15 of the Act for an improper purpose and that since the applicant would not give an undertaking when requested, that it would not use its right of entry for this improper purpose, the respondent was justified and is justified in preventing the applicant from exercising that right of entry.

PN280

The evidence will also show that the respondents used this right under the Act to direct the applicant to hold discussions with employees in a particular area of the site in a manner that was reasonable and in accordance with the Act. Finally, the evidence will not show that the respondent has unduly interfered with or harassed the applicant's permit holders by being present on some occasions when the permit holders are engaging in discussions with eligible employees, and that accordingly there's no grounds for any orders to be made by the Commission in that regard.

PN281

The respondent will show that based on the evidence and authority, the appropriate course is for the Commission to make orders which prevent the applicant's officers from using this right of entry under the Act for the improper purpose of engaging in conduct which might reasonably induce the respondent's employees to terminate their employment with the respondent in favour of an alternative employer, and I'd like to call Mr Paul John Smedley.

<PAUL JOHN SMEDLEY, SWORN [11.48AM]
<EXAMINATION-IN-CHIEF BY MR DOUGLAS

PN282

MR DOUGLAS: Mr Smedley, I have here a witness statement which has been prepared by you and circulated to the tribunal and to the other parties, if I could hand that up to you. Please confirm that that is your witness statement and that's your signature?---Yes, that's correct.

PN283

I'd ask that that be tendered as evidence.

EXHIBIT #R1 WITNESS STATEMENT OF PAUL JOHN SMEDLEY

PN284

MR DOUGLAS: Now, Mr Smedley, I'd like to start by going back to early November, after 2 November you were given instructions in relation to the entry on to the site by the applicant by the executive chairman of BGC. Could you please elaborate on what happened and how you became involved?---Mr Len Buckridge informed me that essentially the CFMEU has been trying to poach some employees from the brickworks site in Hazelmere and that he instructed me to deal with it, I guess, to the best of my ability, something along those lines, by the book, just, yes, I think they were essentially the words.

PN285

Do you have experience with the issue of poaching, as you say, that Mr Buckridge identified and what goes on on sites in this regard?---My experience has been that the CFMEU certainly make it known to people what they can earn elsewhere, what's going on around town, other jobs and so on and I discussed that with Mr Buckridge and he made a point that no, it wasn't as simple as that, that they'd gone, in this case they had gone that step further and was actively trying to recruit some pump operators.

PN286

On 16 November, could you tell me what happened on that day in relation to right of entry on to the brickworks' site?---Yes, I - - -

PN287

That was the Friday?---Yes. I attended the brickworks' site with Vaughan Hinckley. Mr Kennedy was already at the site. He was in the site office when we arrived and I went in and met him, and that was the first time that I'd ever met
Mr Kennedy. We had a discussion about his right of entry, his authority, I viewed his right of entry card, asked him what he was on site for and gave him instructions. So he informed me that he was there to hold discussions. I asked him to hold those discussions outside of the crib room.

PN288

Hang on, actually, is that not 12 November, that would be the Tuesday?---I beg your pardon.

**** PAUL JOHN SMEDLEY XN MR DOUGLAS
PN289

Yes?---Yes, that was, yes, the Tuesday. The Tuesday was after my initial meeting with Mr Kennedy, I beg your pardon. I met Mr Kennedy initially on Friday, yes, and on the Tuesday was when I met him at the front gate.

PN290

Could you tell me about when Mr Kennedy was engaging in discussions, what you were doing at the time?---Yes. I am confused with the date. Which day are we talking about?

PN291

I believe we're talking about 12 November?---Right, and 12 November - - -

PN292

Was a Tuesday when Vaughan, I believe - - - ?---Yes, that was the first occasion that I'd ever met Mr Kennedy, yes, and sorry, what - - -

PN293

I just wanted you to paint the picture of what happened when Mr Kennedy was holding discussions with the employees?---He moved across to the - we all went across to the crib room, the three of us and I think there may have been one worker in the crib room at the time, because the rest just hadn't come to lunch yet. So we left Phil - Vaughan and I left Phil outside the crib room and we moved away, I suppose in a northerly direction, we moved deeper into the site, so we were standing 30 to 40 metres away from Phil as the workers just generally arrived, the crib truck arrived, the meals on wheels sort of van and the blokes all started to drift off the site to get their food and were meeting Phil, some were meeting Phil, some were going into the crib room, in that vicinity. Vaughan and I stood back, as I said, 30 to 40 metres away and just observed.

PN294

Just observed?---Yes.

PN295

Could you hear?---I did hear Phil mention a video camera during his testimony. Vaughan was holding a video camera. It was never used. It was never raised up. It was always down by Vaughan's side. It was there as a back-up if it was needed, but it was not viewed that it was needed on the day because Phil essentially followed the instructions that he'd been given and that is to hold the discussions outside of the crib room.

PN296

On 16 November now, which is a few days later?---Yes.

**** PAUL JOHN SMEDLEY XN MR DOUGLAS
PN297

My understanding is that you didn't attend the site, that you authorised a refusal of entry. Could you tell us about that and what basis?---I was in head office and I was given - I was contacted by Eugene McLaurie, who is the site manager at that job, who advised me that Phil Kennedy was on site and wanted right of entry. Now, that notice, I'm not sure if it came to my attention then, via Eugene or some other - or that I'd been told previously, but I was aware that BGC hadn't received that notice until about 3 pm the day before and Phil obviously was rocking up at around about 11.30 or something, and I instructed Eugene to advise Phil that he wasn't authorised under a right of entry because the notice wasn't - required 24 hours' notice, so my instructor, Eugene, I believe passed that on to Phil. I also spoke to Phil via Eugene's phone, because Eugene put me on to Phil and I said to Phil that, "Phil, you've been refused access. BGC are playing it by the book. I explained that to you the other day. You haven't given 24 hours' notice." Phil proceeded to tell me that it had been sent in the morning of Thursday. I said to him, "That's not an issue, I'm not arguing that with you. I'm just saying that the notice wasn't received until 3 pm, so subsequently there is not the required notice. So you don't have a right of entry today." Phil obviously wasn't happy with that. I tried to solicit a compromise. Phil advised me that he - I asked him, "What's so urgent that you have to get on right this moment?" And he said that he had some literature regarding high risk requirements to give to the blokes. I offered a bit of a compromise. I said, "Phil, look, you can give that literature to Eugene, I'll make sure Eugene gives it to the workers." That wasn't acceptable to Phil. He said, "No, I have to go on the site." And I then offered another compromise, I said, "Well, look, why don't you stand out near the site gate and we'll tell the workers to come out to you and whoever wants to come out to you and get the documentation, can." And he said, "No," that wasn't acceptable either.

PN298

When you made that offer to accommodate the urgency, you did that on - you are stated to be an Occupational Health & Safety Manager?---Correct.

PN299

So you did that on the understanding of what this high risk work was and the urgency?---Well, once he mentioned the high risk work requirements I knew what he was talking about, yes. It's a particular issue at the moment in the industry because it was just legislated last October. Essentially it's like a bureaucratic change from what's called a Certificate of Competency to a licence, and it involves filling out a form and paying a fee to WorkSafe to now hold a licence instead of a previous Certificate of Competency.

PN300

And it was urgent to get it done that week, was it, is that right?---Well, no. I mean, the earliest that anybody has to have the change over, the earliest, is 2010. So nobody is not covered by not having a licence until at least 2010. That's the legislation. I might say, the reason it's staged. So if you've got your licence - Certificate of Competency, say, in - I'm not sure of the exact time frames, but prior to 1990, then you need to have your licence by 2010. If you got your licence prior to '97 it might be that you don't need to change over till 2011 and so on up to - I'm not sure what the maximum date is.

**** PAUL JOHN SMEDLEY XN MR DOUGLAS
PN301

Again you refused entry on the 19th. What was the reason that happened?
---Essentially I was instructed to by Mr Buckridge again. On the 19th I - we'd already discussed that the - that a couple of pump operators had been attempted to be poached by ..... and on the Monday morning I was provided with two statements from those pump operators and I was instructed to refuse the union entry to the site on this day. I was aware there was an entry notice for Monday, Tuesday, Wednesday, Thursday and Friday and I was instructed to attend the site and refuse them entry. Them, I guess, being Phil Kennedy and Wayne Wildes, I think, was on the notice for the five days. Possibly not, possibly just Phil, I'm not sure.

PN302

You refused them entry because?---Well, because Len had instructed me that they were there to poach staff.

PN303

And the notices?---And that the notice itself was invalid. That was the technicality, the notice was invalid. I saw the notice - that's right, I saw the notice and made any inquiry about it, and found out that according to the ABCC the notice was invalid because of numerous dates.

PN304

On 3 December you again refused entry. Can you tell me what you recall about that incident?---Sorry, the Monday?

PN305

That would be - is that a Monday? Pursuant to a notice dated the 30th, so that would be a Monday, yes?---Yes, yes, 3 December was a Monday and I was at the site accompanied by another BGC employee and waiting at the gate for - I expected Phil Kennedy and Darren Cavanagh from the CFMEU to arrive. There had been some correspondence between BGC and the union and there was that right of entry notice from Phil as well.

PN306

Are you talking about the correspondence?---BGC were essentially, through our lawyers, seeking an undertaking from the CFMEU that they wouldn't try to poach staff from the site. As I understood it the CFMEU refused to provide that undertaking and so subsequently BGC weren't prepared to allow the entry on to the site.

PN307

You say that you had a statement given to you by Mr Tony Graham which you had relied on. Had you contacted Mr Graham to discuss this further and about him giving further evidence?---I did later. Not at this stage I hadn't spoken to Tony Graham. I'd been provided Tony and Wayne's statement and at this stage I haven't spoke to either party. I've been told what'll happen and I've seen their statements. So that was all at this stage.

**** PAUL JOHN SMEDLEY XN MR DOUGLAS
PN308

But then subsequently you spoke to Mr Graham?---Yes. At a later date. I spoke to Mr Graham via the phone, he returned my call and I said to him, words to the effect, that, "Tony, I've seen your statement from BGC. Can you tell me was it really a case of, like, him telling you about work going around, or is he really trying to get you for a particular company."

PN309

And he said?---He said, no, no, it was definitely the union trying to recruit - he didn't use that word - but trying to get us and he said it was more, "We can get you this rate of pay, we can get you these conditions, we can get your pump set up there, here's my card, give me a call."

PN310

Why is it that you direct the union to hold their discussions not in the smoko shed but in the outside?---Well, firstly there is - there's probably two reasons and then it's supported by the Workplace Relations Act. The two reasons are that we've had complaints from workers that say they just want to enjoy their lunch in peace, that they - because there's a lot of blokes on sites that might not be union members, or even if they re union members, might not necessarily want to speak to union organisers. So I've had requests from those blokes to say, "We don't want to talk to the union." So we direct the union to hold their discussions elsewhere, not necessarily outside the crib room, but that is a fairly convenient spot for them. But also we've had blokes that don't want to know, don't want the union to know that they're working on a BGC site, whether it's a justly held fear or not, they fear that their livelihood might be threatened if the union knows they're working for BGC.

PN311

On what basis are you and the respondent generally worried about this poaching? What are you - - - ?---Well, I mean, it is - I mean, it's a big concern and I would say personally there's a difference between telling people that they can get work elsewhere and actually soliciting them for work. I would suspect if you're soliciting, there's probably more likelihood that they leave. The big deal is that if you're in the middle of a construction project or someone comes along and pinches your two pump operators, as the employer, you can be - hardship firstly if blokes walk out during the scheduling of a job, we need to find more muff operators urgently. We might not be able to find the same quality. That can lead to delays in the project. I mean, in worse case scenario it could lead to liquidated damages if the project is stalled for long enough. That would be in any sort of important capacity, I suppose, yes. My experience at BGC construction is like site managers and supervisors and other managers, if they were to leave on short notice, there is hardship on behalf of the employer.

**** PAUL JOHN SMEDLEY XN MR DOUGLAS
PN312

Thank you.

<CROSS-EXAMINATION BY MS BOWE [12.05PM]

PN313

MS BOWE: To your knowledge, is Mr Buckridge in the country?---I'm sorry, I don't know.

PN314

To your knowledge is Mr Graham in the country?---Today I don't know. I spoke to Mr Graham on Friday but I don't know where he is today.

PN315

He's an employee of BGC?---As I understand it I think he's a BGC - an employee of BGC Concrete or Blockpave or something like that, but yes, an employee though.

PN316

Is Mr Parsons in the country today, do you know?---I don't know about today. I was told last week that he was overseas.

PN317

When you say last week, what day last week?---I think I was told on Thursday and Friday. I think Tony reconfirmed on Friday.

PN318

Mr Smedley, did you at any time during November and December of 2007 witness Mr Molina or any other permit holder from the applicant approach any BGC employees at the brickworks site?---Yes.

PN319

When you noticed the - - - ?---Sorry, I should clarify. Probably the easiest way is I'll cut to the chase, I did see Mr Kennedy talk to workers at the site outside the crib room. I wouldn't know who was a BGC employee or who was a subcontractor.

PN320

So when he was exercising his right of entry following a request that you had made of him?---That's right, yes.

PN321

Did you at any time during November and December witness Mr Molina or Mr Wildes speaking to employees on the site?---No. I haven't - I've never seen Mr Molina or Mr Wildes at that site.

PN322

And in your statement you allege that the permit holders from the applicant were attempting to poach BGC employees during November and December, did you at any stage witness this alleged poaching?---I think the statement says that I was told that they were trying to poach employees.

**** PAUL JOHN SMEDLEY XXN MS BOWE
PN323

You were told, but did you at any stage see them attempting to poach?---No, no.

PN324

No?---Well, not unless Phil was doing it when I was standing 30 to 40 metres away and I couldn't get what he was saying, but I didn't see them actually poaching.

PN325

At any time during that stage, November and December, again, did you witness Mr Molina or Mr Wildes hand anybody on site their business card?---Like I said, I haven't seen them on site - - -

PN326

I just wanted to check that you hadn't seen them with a business card?---Yes.

PN327

So you haven't seen Mr Molina or Mr Wildes on site?---That's right.

PN328

So when you say in your statement that you were told that they were offering to be a contact for any BGC employee who may wish to go elsewhere, that's simply, you were told that, you didn't see or hear that?---No. I was told that by Tony and Len Buckridge and Phil Hobbs from BGC Concrete also told me that, so yes, I was just told by other people, one being Tony and the other being a third party.

PN329

Sure. So you attended the site on 13 November, so that's a Tuesday?---Yes, yes.

PN330

And so you said that you directed Mr Kennedy to hold his discussions outside the smoko?---Yes.

PN331

And he adhered to that request following - - - ?---He didn't seem to have a problem with it, yes. Didn't raise any objection.

PN332

And you've already said that you witnessed the meeting?---When you say witnesses, yes. I mean, Vaughan Hinckley and I were standing aside. We were there to observe Phil, but we weren't like, just watching him the whole time. We were talking amongst ourselves and that sort of thing, but yes.

PN333

Is there a reason why you wanted to observe Mr Kennedy?---Yes, yes. Several times - I mean, particularly in the past we've given instructions such as that to union organisers and they've disobeyed those instructions and we have had some probably more fiery visits from the likes of the Assistant Secretary, Joe McDonald, and so on, and again he hasn't followed directions.

**** PAUL JOHN SMEDLEY XXN MS BOWE
PN334

I understand that, but these directions were given to Mr Kennedy and you've given evidence that, you know, you had not long initially met Mr Kennedy for the first time?---Yes, yes. Well, that's why - - -

PN335

What I'm trying to understand is why would - he hasn't given you any reason in the past to suggest that he was not going to follow any request that you had made, so why is it that you deem - - - ?---Well, I guess I don't know Mr Kennedy, so I don't know what his behaviour is going to be like, so I figured the course of action I chose, it's non-confrontational. We stood well away from him, kept our nose out of it and just observed to make sure he did follow the instruction of holding the meeting and discussions outside the crib room, and didn't decide to go do something else.

PN336

Sure, and he follows those directions?---Yes.

PN337

At any stage with your dealings with Mr Kennedy on this particular site, has he not followed requests, you know, has he behaved in a manner that you've just described, that other CFMEU organisers have - - - ?---No. He's been fine so far.

PN338

Now, you talk about the statements of Mr Parsons and Mr Graham?---Yes.

PN339

Did the respondent request those statements or were they provided voluntarily by those two gentlemen?---I don't know. I wasn't a party to that.

PN340

How did you come across them then? Who gave - - -?---They were brought to my desk I think on Monday. Phil Holz from BGC contractors delivered them to me and said, "These are the statements from Tony and Wayne."

PN341

He didn't elaborate on how they had been obtained?---No. I'm not sure when I had a meeting - when we were at the meeting with Len on - I'm just trying to get my dates - a couple of days before, whether Len said let's get statements from those blokes or - I'm not sure whether Phil took it upon himself or whether he was instructed. I don't recall.

PN342

So it's possible?---Yes, as far as - it's quite possible ..... let's get statements from them.

PN343

If I can take you to 16 November and you say when we were talking about the right of entry and the issue of whether it was delivered or when you received it, when did you first become aware of the right of entry notice that Mr Kennedy intended to exercise his right on 16 November?---That was the Tuesday - sorry, the Friday, yes.

**** PAUL JOHN SMEDLEY XXN MS BOWE
PN344

Yes, because Monday is the 19th, yes?---I really don't remember whether I saw it because it didn't come in to me, it went to BGC Corporate. Whether it came down to me on Thursday afternoon or Friday morning or if I was just told that there was a notice in existence.

PN345

When you refused access to the site as a result of not giving enough notice, at that time had you sighted that right of entry notice?---I don't remember if I'd sighted the notice or if I'd been told that the notice was - you know, the time and date as applies. I know I confirmed before I spoke to Phil with Eugene so I know I was certain at that point but again that was just from discussing it. I don't recall whether I had a copy of the notice in front of me or not.

PN346

Can you recall when you actually did have a copy of the notice in front of you?---I know I had one - I certainly had one later that day but I just don't know whether I had a copy of it before the one you're raising or not.

PN347

When you say you certainly know you had one later that day, are we talking about the same right of entry notice that was - - -?---Yes. I don't know when it came down from upstairs, so to speak.

PN348

Can you just for me elaborate on what happens if a right of entry notice comes in, does it sit on a fax machine? Is there some sort of receipt that's printed to say what time it comes in? What's the process?---Typically, because - just so you're clear here, there's two entities that we're sort of talking about. The brickworks is run by BGC (Australia) and I work directly for BGC Construction, which is a subsidiary, so I deal with everything sort of BGC Construction ..... so in that circumstance, when the union fax us, they send it to a BGC Construction fax which faxes are checked regularly and the fax goes into my tray and someone gives me a call to let me a notice has arrived if I'm not in the office. I don't know how they do it with corporate, so to speak, or BGC (Australia) or BGC BlockPave. I'm not sure what their protocol is. I should imagine the fax would print out a time on it.

PN349

When you refused the right of entry, you were acting in what capacity with BGC (Australia)?---I guess as an employee of a subsidiary. I mean, my technical employment relationship is through BGC Construction Pty Ltd but we all answer to the one CEO, being Mr Buckridge and Mr Buckridge had asked me to do, so that's normally where I stand in a technical capacity other than an employee of BGC.

**** PAUL JOHN SMEDLEY XXN MS BOWE
PN350

If we can move onto 19th November and you said that you had seen the notice that gave the numerous days and times that Mr Kennedy and I think Mr Wildes had intended to enter the site, at what stage did you see that notice?---On the Friday, which would be the 16th.

PN351

If I can take you to just recently you were chatting about the impact the two concrete pumpers leaving at the same would have on the business. In your statement you say it possibly has great, far reaching financial problems. Would those financial problems still potentially occur if one day two concrete pump operators turn up to work and went, "You know what? I've had enough,. We're going to leave"?---Yes, presumably, yes.

PN352

My final question, Mr Smedley, is, did you at any time during November or December witness Mr Molina or Mr Wildes or Mr Kennedy acting improperly whilst exercising their right of entry at the brickworks site?---Molina and Wildes I never saw, Mr Kennedy I don't think so. I'm just running through my head, I don't think any of his behaviour was - that I observed or discussed with him was improper.

PN353

Thank you, Mr Smedley.

PN354

THE COMMISSIONER: Mr Douglas.

PN355

MR DOUGLAS: I don't have any questions, sir.

PN356

THE COMMISSIONER: Thank you very much, Mr Smedley, you're excused.

<THE WITNESS WITHDREW [12.16PM]

PN357

THE COMMISSIONER: Given the process we discussed earlier, Mr Quigley, I think it's appropriate now if you'd like to make what submissions you wish regarding intervention, please.

PN358

MR QUIGLEY: I just wonder, given the time, Commissioner, it would be appropriate if we had a lunch adjournment, if I could address the Commission after such a break.

PN359

THE COMMISSIONER: I was inclined to continue on but I note your observation you made earlier this morning that you had limited opportunity to consider the submissions and the outline of submissions that was provided by BGC. In the circumstances, I think just to facilitate the progress of this matter, I'll go along with what you're saying, Mr Quigley. We'll adjourn for lunch now and if we can resume at quarter past 1 and then hear your submissions. The Commission stands adjourned.

<LUNCHEON ADJOURNMENT [12.17PM]
<RESUMED [1.37PM]

PN360

THE COMMISSIONER: Yes, Mr Quigley.

PN361

MR QUIGLEY: Sorry I'm late, Commissioner. I had prepared and had almost completed some written submissions but I'm afraid the computer gods were against me but I'm right now.

PN362

THE COMMISSIONER: I take it, Mr Quigley, you're extending your apology both to Ms Bowe and to Mr Douglas.

PN363

MR QUIGLEY: To all the parties, Commissioner.

PN364

THE COMMISSIONER: Yes, I think you should. If you would like to begin.

PN365

MR QUIGLEY: Commissioner, I wonder if I could put to the Commission some submissions that I've prepared in writing. I've got copies for the applicant and the respondent here, together with an attachment to them.

PN366

As I said earlier, the ABC Commissioner wants to make some submissions in relation to this matter which go perhaps more to the principles involved in the question of right of entry and suggest that the ability that the Commissioner has had to look at the details of the evidence that's been put to the Commission has been limited and to that extent it's appropriate that the ABC Commissioner's view, as expressed to the Commission, deal maybe with matters of large principle.

PN367

The first point that the ABC Commissioner wants to stress is that Part XV of the Workplace Relations Act as it now is, operates as a code for the right of entry to employer's premises and provides for a number of significant changes over what previously were the arrangements for right of entry, both under the Workplace Relations Act as it was up until March 2006, and also previous provisions under the Industrial Relations Act. That's the Industrial Relations Act 1988.

PN368

There are three relevant features of the new right of entry statutory scheme, for the purposes of our submissions in this case, each of which is new and wasn't part of the Workplace Relations Act prior to the changes made by the Workplace Relations Amendment Work Choices Act 2005. Each of those new features are relevant to the matters that are before the Commission in this case.

PN369

There's the specific object introduced into section 736 which establishes a framework aimed at balancing the right of organisations to represent their members in the workplace to hold discussions with potential members and investigate suspected breaches of industrial laws, industrial instruments and occupational health and safety laws. They're balanced with the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment and that's in subsection 736A.

PN370

The other new provision is the statutory prohibition on a permit holder entering or remaining on premises in circumstances where the affected employer or occupier of a premises requests the permit holder to conduct interviews in a particular room or area or to take a particular route to reach a particular room or area of the premises and, this is important, the request is a reasonable request and a permit holder fails to comply with the request. That's at subsection 751(3).

PN371

The third one, and that's really the substance of the matters that are before the Commission, is, there has been introduced new powers to the Commission to make orders in circumstances where it is satisfied that a request made by an employer is not a reasonable request.

PN372

Commissioner, I've attached as an appendix, the full provisions of Part XV of the Act and highlighted those which are relevant and I've also appended to that excerpts from the explanatory memorandum that accompanied the Workplace Relations Amendment Work Choices Bill when it was put into the parliament and also the regulation impact statement that also accompanied the legislation. I've highlighted in there some of those relevant points that I think the Commissioner would have some advantage in reading. I say that because these are new provisions and there have not been a great number of cases before the Commission that have dealt with these.

PN373

I note that in the submissions by both the respondent and the applicant that there are references to right of entry cases in the near past and in some cases in the distant pass but I think it's relevant that particular consideration be given to the Act as it now stands, and in particular to the objects of Part XV.

PN374

On the second page of my written submissions, Commissioner, I've set out there what it is that a holder of a permit requires and I think that it's probably not necessary to run through each of those but I would point out what is important I think that on the top of page 3 under the heading Permit Holder's Obligations, I point out that the right of entry provided by section 760 is not unconditionally. There are other provisions in Part XV which entitle an occupier of premises or an employer to impose conditions upon entry by making a request in relation to the manner in which entry is to be carried out.

PN375

They're matters that touch upon the issues involved in these proceedings, Commissioner, in particular the requirement that a permit holder must comply with an employer's reasonable requests about the rooms or areas that may be used on the site for holding discussions, the route to be taken to access those rooms or areas and occupational health and safety. Ultimately, of course, it's a matter for the Commission to determine whether or not those requests or demands that have been made are reasonable ones and that's something that's going to depend upon the particular facts of this particular case.

PN376

One of the witnesses said in the course of his evidence this morning that advice had been given by the ABCC in relation to a particular question of right of entry. I can say, Commissioner, that the ABCC, as a matter of record, advises permit holders if they've been refused or delayed lawful entry onto a site that they should write to the occupier confirming that they've been refused or delayed a right of entry onto the site and that this may constitute a breach of the Workplace Relations Act or a collective agreement if there is one in place. We also recommend that they contact the ABCC's hotline for assistance regarding right of entry issues so that if there are questions of lawful entry being denied that there are resources available to have those investigated.

PN377

It is important to point out that the ABC Commissioner does not advise occupiers of premises that they establish their own set of conditions on top of those already established by the Act. The ABC Commissioner's point of view is that if an occupier of premises feels that an entry is being sought that isn't appropriate that the way to deal with those is to make application to the Commission for appropriate orders and for the Commission to determine whether or not what is being sought is appropriate or indeed a breach of the bona fides of those provisions.

PN378

In coming to how the Commission in this case should deal with the application, the ABC Commissioner believes that the Commission should have regard to the objects of Part XV as they are set out in section 736. The ABC Commissioner believes that it's clear that the framers of the Act saw these provisions operating in a manner that would provide balance between the parties. This can be gleaned from the reference at 736A(1) for the right of organisations to represent their members in the workplace, to hold discussions with potential members and investigate suspected breaches of industrial laws, industrial instruments and occupational health and safety laws, but at the same time that the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment is taken into account.

PN379

BGC, the employer in this matter, contends that his ability or right to conduct his business without undue interference or harassment is being challenged by the union's conduct and for its part the union asserts that it is doing no more than exercising its statutory rights to represent its members and to hold discussions with eligible employees.

PN380

In relation to discussions with eligible employees, section 760 sets all that out. Perhaps unhelpfully for the Commission in these particular proceedings, the Act does not expand on what is meant by the term "holding discussions". The union contends that whilst the Act does not expressly prescribe the nature or limits of the kind of discussions that a permit holder can have in exercising the right of entry under section 760, it is reasonable to assume that if the parliament had wished to place limitations on the nature or kind of discussion that could be held, it would have done so.

PN381

The ABC Commissioner's view is that the union submission infers that there's no limit on what may be discussed between a permit holder and eligible employees. The ABC Commissioner contends that such an inference, if that's what it is, does not have sufficient regard to the objects of the right of entry provisions of the Act and therefore such an inference should not be drawn.

PN382

THE COMMISSIONER: Mr Quigley, does that mean if a permit holder discusses the weather with some of the union members, that's contrary to the Act?

PN383

MR QUIGLEY: Unless the weather question was related to say occupational health and safety, Commissioner.

PN384

THE COMMISSIONER: Assuming it's not.

PN385

MR QUIGLEY: No, I think the question of what's appropriate for discussion should really be a matter that is relevant to the role that the union has in relation to those employees at that workplace, if I can put it in a nutshell.

PN386

The ABC suggests that whilst acknowledging the Act it does not expressly prescribe the nature or limits of the kinds of discussions, the object of Part XV and its particular components point to the sorts of things that would be appropriate and inappropriate for discussion. These include such matters as are identified in section 736, such as the rights of organisations to represent their members in the workplace, to hold discussions with potential members, investigate suspected breaches of industrial laws, industrial instruments and occupational health and safety laws and the rights of occupiers of premises and employers to conduct their businesses without undue interference or harassment.

PN387

That's in answer to the question that the Commission asked just almost immediately before that. They're the sorts of things that the ABC Commissioner would say generally are those that are appropriate for discussion. We say further that there is the requirement in section 772 that in making an order the Commission must have regard to fairness between the parties concerned which again I think brings you back to those objects that are in section 736. Therefore, the ABC Commissioner submits that if any inference is to be drawn as to what is appropriate for discussion, it is that the subject of discussions should be such that they conform to the objects of Part XV.

PN388

THE COMMISSIONER: Just help me with this a little bit. In the context where a purported right of entry is to hold discussions, and I'm quite comfortable with what your submission says, if we're concerned about what the intent is of the permit holder in seeking to exercise right of entry, but the reality of the world is that the permit holder may well have quite appropriate intentions consistent with the objects of the Act to discuss with their members relevant industrial issues of concern to them, but the members themselves in a free flowing discussion may raise unrelated issues which notionally are beyond the objects of this part of the Act. How do we deal with that?

PN389

MR QUIGLEY: I think the question becomes, Commissioner, what was the purpose initially of the holding of the discussions and if that is bona fide to discuss industrial issues, all those sorts of things, and then in the course of discussions, as people know they can become wide ranging and head down all sorts of avenues, I don't think you need to - sorry, we're getting off the - the only thing that would probably limit that would be the parties themselves suggesting, "Look, we've only got limited time because we're having this discussion during our break, can we get back onto the subject." I would see that that's probably in reality how it's going to be.

PN390

THE COMMISSIONER: Okay. Thank you.

PN391

MR QUIGLEY: Te point I was coming to, Commissioner, is that the union has got a comprehensive set of rules that are registered with the registrar and I think it's reasonable to expect that those permit holders of the union would have regard to the objects of the union as set out in those rules whilst holding discussions with eligible employees. I've only got one set of the union's rules with me but, as the Commission would be aware, they are available on the Commission's website. The objects of the CFMEU, like a lot of unions, are very broad indeed and I think it would be reasonable to expect that any of those objects in that set of rules of the union, it would be fair comment for a union official to say, "Well, that's what we want to discuss with our members." I don't think anyone would be quibbling with that.

PN392

THE COMMISSIONER: I'm not sure about that, Mr Quigley. Without wanting you to express a view on the facts of this matter, the union's position is that commonly their members will want to talk to their permit holders about other employment opportunities, the terms and conditions being offered by other employers on other jobs. Putting to one side the employer's concerns in this case for the moment that if that conversation perhaps is triggered by the union or promoted by the union, it might get to a point where it involves inciting or inducement to leave the employment. If it does not go that far, does the ABC Commissioner have a view as to whether a general discussion about what's going on in the industry about terms and conditions elsewhere, is it your view that that's at odds with the objects of this Part?

PN393

MR QUIGLEY: I think, Commissioner, it will depend on the facts of each case and I think an innocent interpretation such as the union has sought to put on its circumstances in this case suggest that if a member were to ask an official on a site about what's happening, then it would be perfectly reasonable for that official to impart such knowledge as he or she has to their members. I note in particular that the union witnesses have pointed out the transient nature of employment in the industry and I think in fact the company's witness indicated that it is not uncommon for employees to make inquiries about what the state of employment is around the place.

PN394

Of course, the question is, where does that stop and where would questions such as have been alleged in these proceedings of inciting people to leave employment and perhaps leave that employer in the lurch - where does that start and stop? That's a question in the facts of the case.

PN395

Commissioner, I want to make some comments in relation to the particular orders that have been sought by both the applicant and respondent and to deal with the orders that are sought by the union which are essentially in four parts. The first is that the union seeks an order that the company withdraws its demands that the union provide undertakings as contained in correspondence from the company's lawyers dated 3 December 2007.

PN396

The company for its part says that the union's permit holders have been seeking to enforce their right of entry for an improper purpose and that the company is entitled to require an undertaking that such entry be exercised in a bona fide manner. Well, what we say is that it's really a matter for the Commission to determine on the facts of this case whether or not entry in a bona fide manner has happened or not and for the Commission to determine accordingly. The ABC Commissioner doesn't intend to put submissions to the Commission as to whether or not those entries were made in a bona fide manner and we leave that up to the Commission based on the evidence of the parties. Both the applicant and the respondent in these proceedings are represented by legally qualified representatives and are more than capable of providing appropriate submissions to the Commission in that regard.

PN397

In relation to the second point that an order should issue that would allow permit holders from the union to enter into the Kalamunda Road brick site works in accordance with their right of entry, provided that valid notice has been given. The ABC Commissioner points out that the permit holder has a statutory right to enter a workplace to hold discussions with eligible employees who wish to participate in those discussions, provided the valid notice of entry has been issued by the permit holder.

PN398

Anything that would challenge a statutory right requires that there be evidence of a nature sufficient to convince the Commission to exercise a discretion to infringe on that statutory right but of course, as I pointed out before, the Act does provide that the right is not an unconditional one. Again, the ABC Commissioner submits that this is a question for the Commission to determine as to whether or not the union has been exercising its rights in a bona fide manner or not that that will affect consideration of that question.

PN399

In relation to the permit holder being able to engage in discussions at a place where the permit holder thinks is appropriate, the ABC Commissioner points out that the Act provides that a permit holder should hold meetings in an area or location that is designated by the occupier but with the proviso that the request is a reasonable one and there ..... of course, is what BGC is doing in this case, reasonable?

PN400

The company has submitted that workers on this site or at least some of the workers on this site don't want their facilities used for union discussions while they're on a break. On the other hand at least one of the union witnesses has said that not having been able to use the facilities, he was forced to conduct a meeting outside exposed to the elements.

PN401

Commissioner, the ABC Commissioner feels that the Commission may find some value in actually conducting an inspection of this site to see whether or not the site and its facilities are such that what the company is asking the union to put up with is reasonable and in those circumstances whether or not it is able to have regard to those provisions in section 765(3) and (4) as I'm aware that to date there's been nothing in any of the evidence put by the witnesses about the actual state of the site and whether or not there were any other facilities other than those that were referred to I think as the smoko shed.

PN402

I think that, given whatever decision the Commission makes in this case or relates to the facts of this case and particularly having regard to the fact that this is isn't a question of a new provision, apart from some decisions in relation to the Australian Taxation Office, that have generally not been tested by the Commission so the ABC Commissioner would submit, and this is, of course, ultimately a matter for the Commission to determine whether it needs to or not, but the ABC Commissioner is of the view that there may well be some value in conducting an inspection.

PN403

The fourth point the applicant's order is seeking is that there be no undue interference or harassment by management representatives or company representatives being present when the permit holders are engaging in discussions. You've heard evidence by both the union representatives and by the company's representatives about that. The union representatives, as I recall, were suggesting there that they felt intimidated or their members felt intimidated and the company representative, Mr Smedley, said that he was some distance away and he didn't feel that he was. Again, they're points that an inspection of the site might assist the Commission in determining whether or not that is reasonable or not.

PN404

It's also a point that I think, as with many industrial relations issues, there is a capacity for, perhaps in this case, further discussions between the parties and maybe even a further attempt at conciliation by the Commission with the parties to see if something could be sought to be resolved in relation to that.

PN405

In relation to the order sought by BGC, the submissions of the ABC Commissioner are that whether or not the Commission is inclined to grant the order proposed by the company, or a variation of it, will depend on whether the Commission is convinced that the company's claims have been made out, which takes us then back to the facts of the case.

PN406

What we submit in that regard is that the applicant and the respondent are represented by counsel capable of advising the Commission of the legal questions, on the weight to be placed on the evidence they put forward, including whether hearsay evidence may be given appropriate weight in relation to a witness's belief about the truth of statements that have been made to him and that essentially goes to the question of the challenge that was made in relation to the annexures to
Mr Smedley's witness statement.

PN407

Commissioner, as I've indicated I've attached to that outline of submissions an appendix which is essentially a running through in brief the provisions of Part XV of the Act and also a document - and I think, if the Commission will forgive me, the accompanying documentation regarding the Work Choices Bill was quite voluminous and the regulation impact statement and the accompanying explanatory memorandum went, as you will see from the last page of that document, to at least 401 pages and I can tell the Commission it continued on after that.

PN408

But I think that if there's any value in that it does help to expand upon those provisions that are contained in the object of part 15 which as I submitted at the outset is the context within which the application by the union in this matter ought to be observed and considered and which the response by the company ought also to be considered. They are the submissions of the ABC Commissioner if it pleases.

PN409

THE COMMISSIONER: Thank you Mr Quigley. If I can just ask you whether you wish to comment both section 771 and 772, which empower the Commission may order. Both of those sections appear to be discretionary sections, in other words whilst an open door submissions you've made some comments about the orders sought and on a number of occasions made observations along the lines that whether the Commission is convinced that the company's claims have been made out and so forth that that would be the determining point.

PN410

You would acknowledge would you that even if I'm persuaded frankly by either side that their case is made out, the granting of an order or the issuing of an order is discretionary power and may choose or choose not to exercise?

PN411

MR QUIGLEY: Yes, I would agree with that Commissioner.

PN412

THE COMMISSIONER: Do you have any views on what issues I'm to take into consideration in exercising that discretion? You touched on the obvious ones in terms of the balance between the parties and the fairness and so forth which is discussed?

PN413

MR QUIGLEY: Yes.

PN414

THE COMMISSIONER: One of the things, perhaps it would help you, one of the things I'm interested in is, 772 talks about the Commission may make orders for the purposes of settling disputes about the operation of this part. Would I need to be satisfied that the order would settle the dispute?

PN415

MR QUIGLEY: I think any question of discretion on the part of the Commission has to go to the efficacy of such orders that the Commission makes and unless the Commission were convinced that an order would make a difference I would suggest that the Commission would be advised not to make one. I think that the Commission has an obligation to seek to ensure that if it's seen that the objects of the Act in some way is being prevented from being expressed that if the Commission can do something that it thinks, even if for a limited time can make a difference, then the Commission would be well advised to do that.

PN416

Now what I mean by that Commissioner is that it might mean that the Commission feels that an order is appropriate but that it might be imposed for a trial period for example, to see whether that makes any difference. Or that the parties try to come to some arrangement so that there's an opportunity for a development of - or the establishment or development of some trust between them as to what is appropriate conduct or behaviour. Because it comes back to the question of the balance between the rights of the union to do the things that unions are established to do and the right of the company to conduct its business in a manner that doesn't prejudice its successful operations.

PN417

If the Commission doesn't believe that it's got enough from the material that the witnesses have provided to it, I suppose it's then a question for the Commission to regard whether or not its discretion ought to be exercised. But I certainly think that no discretion should be exercised unless it was considered that it was going to make some difference and a positive difference having regard to the objects of the Act.

PN418

THE COMMISSIONER: Thank you for that Mr Quigley.

PN419

MR QUIGLEY: Thank you Commissioner.

PN420

THE COMMISSIONER: Ms Bowe?

PN421

MS BOWE: Sorry, forgive me sir.

PN422

THE COMMISSIONER: That's all right.

PN423

MS BOWE: Commissioner we would seek to adopt the previous submissions that were lodged so far with you on Monday and just seek to make a few further points in light of today's hearing. The applicant submits that its permit holders had met the requirements of the Act and should therefore have been permitted to enter the site. The applicant has previously denied the allegation of poaching in correspondence to the respondent and maintains that denial. Mr Molina and Mr Wildes both gave evidence today that workers approached Mr Molina and that it was the workers who asked about the work and where it was.

PN424

Mr Molina and Mr Wildes both gave evidence that it was not uncommon for members, non members, workers in general to approach or to call an organiser and ask where the work was and whether or not the organiser could assist in getting that work. It was also common they would ask what where the terms and conditions on other sites. In fact Mr Wildes stated today that it was not uncommon for him to receive up to 10 phone calls of that very nature a week. Both witnesses have said it's not uncommon either to hand out business cards to workers seeking such information.

PN425

Mr Smedley for the respondent gave evidence that he had been told that Mr Molina had been seen or heard attempting to poach employees at the brickworks site. The respondent has admitted into evidence, statements and an affidavit of Mr Parsons and Mr Graham, support the allegation of poaching. The respondent chose not to cal the authors of the statements and affidavits to give evidence, nor did the respondent call Mr Buckridge to give evidence as to his conversations with either of the witnesses, or anybody from the applicant. Mr Buckridge, Mr Graham and Mr Parsons, have made through Mr Smedley's evidence a number of allegations of poaching against the applicant.

PN426

The applicant wasn't given the opportunity to test those allegations under cross-examination and the applicant submits that it's not only procedurally unfair but substantially unfair. The applicant submits that little weight should be - little or no weight should be given to the evidence of Mr Smedley regarding the poaching allegations and that the evidence of Mr Molina and Mr Wildes be preferred. The applicant submits that at all times its permit holders exercise their right of entry for bona fide purposes. That is, either for occupational health and safety purposes or to conduct discussions with eligible members.

PN427

It was submitted by the respondent that Mr Smedley had viewed statements of Mr Parsons and Mr Graham as a basis for a reasonable belief that the applicant's permit holders had intended to exercise their right of entry for an improper activity. Again the applicant was not able to test these assertions. Mr Smedley stated he had not personally seen Mr Molina or Mr Wildes on the site and that he had not at any stage witnessed Mr Kennedy behave in an improper manner. The respondent has not put forward any evidence to support the allegation of improper activity or that indeed there was any intention to behave in an improper manner.

PN428

The applicant's permit holders gave evidence regarding their intentions and in the absence of any evidence to suggest otherwise, it should be believed that they exercised their right of entry for bona fide purposes. The applicant accepts that the Act allows the affected employer or occupier to request the permit holder to meet, to hold discussions in a particular room, or a particular area of the site and/or take a particular route on the site to that particular room or to area. However, the Act does also require that those requests must be reasonable requests.

PN429

The applicant submits that requesting the permit holder to meet employees outside in approximately 36 degree heat, whilst management observed the discussions is not only unreasonable, but is an attempt to intimidate the permit holder and workers who wish to meet with the union. The respondent submits that the applicant had an ulterior purpose for wanting to exercise right of entry on five consecutive days. The respondent submits that the applicant gave no reason as to the frequency of the exercise of right of entry. It is the applicant's submissions that there is no requirement under the Act for the permit holder to provide the employer or occupier with a reason as to why they put right of entry notices in, other than the purpose to exercise their right.

PN430

Mr Kennedy gave evidence today that it was his intention to hand out and to relay information regarding the high risk licence. Mr Kennedy also gave evidence that he was informed not all employees would be on site on the Monday and that perhaps they weren't all going to be on site on Tuesday. It was Mr Kennedy's intention to exercise the right of entry on each of the consecutive days until he had seen all of the relevant employees. Mr Smedley gave evidence that the licence doesn't need to be changed over until 2010 and that it is a staggered change over. CFMEU permit holders take their jobs incredibly seriously and don't want to get to the point where we have 8000 members in 2010 who need to change their licence over and the CFMEU are proactive in safety matters.

PN431

The respondent by demanding the undertaking are seeking to place a further condition and constraint on the applicant and it's permit holders of which we say, it is not entitled to. The applicant submits that ANZ Banking Group and the Finance Sector 134 IR 426 is an authority to support the submission that the respondent isn't entitled to place further constraints and conditions on a permit holder. As I mentioned in my opening submissions this is a matter that is not only discussed in past conduct of the parties, but also potential future conduct. The respondent is seeking to refuse the applicant's permit holders to enter on to the premises into the future, unless it gives the undertaking that it will not induce, or attempt to induce any worker on site occupied by the respondent to terminate their contract of employment.

PN432

We would submit that the evidence of the applicant be preferred and that the Commission has to the power pursuant to section 772 to make an order sought by the applicant, that is, orders that seek to address the conduct of the respondent and provide a framework for future entry into the premises. One would also suggest that it would provide a framework for what would hopefully be a peaceful industrial relationship. Unless you have any questions Commissioner those are my submissions.

PN433

THE COMMISSIONER: I have questions. The application is made under section 772 the proposed minute of draft order that has been provided by the union at point (3) deals with the concern about in effect, where the employees - sorry where the union can have discussions with employees during the meal breaks, the issue basically about inside the building or outside the building. Section 771 of the Act seems to deal particularly with this sort of circumstance where the employer has imposed a particular condition to do with where, in this case, discussions can be held.

PN434

In section 771 deals with the complaint in effect by a permit holder or an organisation that that condition is unreasonable, it empowers the Commission to deal with. Now what I'm getting to the question, the question in effect is this, that 771 specifically seems to deal with that element of your concerns in this case. 771 is a power that can only be exercised by the President and Presidential member or a Full Bench, not a mere Commissioner like myself. Do you want to comment on that versus how this application is being progressed by yourselves under 772?

PN435

MS BOWE: The applicant feel under sorry just referring to 772 - as you are aware 772 is for the purposes of settling disputes about the operation of the part. Our view was that there is a dispute there we would like to settle it. Attempts I understand have been made to conciliate the matter and there is somewhat of a history between the applicant and the respondent. In good faith we made the application under 772 in the hope that the matter, the dispute could be settled. It obviously hasn't and we are now here seeking the orders.

PN436

THE COMMISSIONER: Yes, but my problem is part (3) I think of your order appears to be a power that could only be exercised under section 771 given it's an express provision that deals with that type of issue. Given that expressly deals with it I'm not sure that section 772 can deal with that sort of problem.

PN437

MS BOWE: I take your point sir.

PN438

THE COMMISSIONER: However, that's an issue for me perhaps to worry about.

PN439

MS BOWE: Yes perhaps it was the minute of proposed order, is just that, a proposed order.

PN440

THE COMMISSIONER: Certainly, can I just make the observation that up until this proposed minute of draft order was provided earlier this week, the issue of where discussions were to be held hadn't really surfaced as being the subject matter of the dispute.

PN441

MS BOWE: Yes, my understanding was that it was an initial part of the dispute, it certainly wasn't a significant part of the dispute and then you know, with witness statements and evidence that has possibly become larger than it had started off to be.

PN442

THE COMMISSIONER: Okay thank you for that Ms Bowe. Mr Douglas?

PN443

MR DOUGLAS: Thank you sir. I would like to largely adopt the outline of submissions provided earlier, although in light of the evidence that has gone ahead of me, I'd like to amplify those somewhat as I go along. As I indicated in the outline of submissions in our view the dispute as to whether the respondent hasn't had a reasonably held belief that officers of the applicant - actually I might pause there, sorry sir, I might actually start with the issue of admissibility first just to not break the flow, because you did indicate to us that you would like to hear further submissions regarding the admissibility of the attachments to Mr Smedley?

PN444

THE COMMISSIONER: Yes, I think that probably is a good place to start.

PN445

MR DOUGLAS: Yes and also just the general evidence that was given of statements of others. Now the first point I'd like to make about that is that we submit that it's not the case that this is hearsay evidence at all. We submit that this is not hearsay evidence and that the statements from Tony Graham and Duane Parsons and the reference to instructions and information from Mr Buckridge are not hearsay, since they are only to establish to state of mind of the respondent in particular Mr Smedley in refusing the right of entry and if I might actually quote from the passage of Subranium v Public Prosecutor, 1956 1WLR965 at 970 it says:

PN446

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. t is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made.

PN447

And so our point is that what we are seeking to establish here is the state of mind of Mr Smedley, who has appeared today, when refusing the right of entry. And we say that it was reasonable, he had a reasonably held belief based on the statements from the CEO of the company backed by written statements from the particular employees that these particular events had happened, in this case the conversations between the CFMEU official and the BGC employee. I go further and also say that the section 110B of the Act, as you're no doubt aware, says that in a proceeding under this Act the Commission is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it considers just.

PN448

To the extent that the Commission considers it just it may have a regard then to the affidavit of Mr Graham, which is indeed a sworn statement, and in this context we know that the evidence of Mr Smedley includes an explanation of why it is that Mr Graham did not appear today, in that Mr Graham in a sense is a bit of a meat in the sandwich here. He's simply an employee, a concrete operator who was engaged in a conversation and simply told his employer what was said. It was not his intention to look any wider about the implications of what was said and did not want to appear in this context because of a belief that this may in some way prejudice his opportunities in the industry. He didn't want to make enemies in the industry, he didn't want to take a position in the industry, he's just an employee who related the content of the conversation to his immediate employer and this was passed on up.

PN449

So in that context we did not see it to be reasonable to press Mr Graham to attend when he did not want to when, in our view, as I'm about to go on to say, the issue is not so much what Mr Graham was told, that we believed that this was what we were told was true and is a reasonable basis for the belief. So in that context I move to the main part of the submissions.

PN450

THE COMMISSIONER: Can I just ask you, what the union is saying is there is two issues I'm solely concerned with. One, past conduct of the company and the future and intended conduct of the company as evidenced by correspondence to the union that indicates that the undertaking requested by BGC is not agreed to and thereby right of entry will be denied to the union's permit holders. Given that latter point, whilst the evidence of Mr Smedley may be confined to considerations as to whether he had a reasonable view on what he acted, the question of future conduct I would have thought is also in question here isn't it, and that brings into more focus whether or not as a matter of fact what Mr Graham says is correct, or what Mr Molino and Mr Wildes says is correct?

PN451

MR DOUGLAS: I don't want to get too much out of order with the way I'm going to deliver my submissions but I'll address that point directly. The evidence of Mr Molina was in a sense different from that of Mr Graham in his affidavit to the extent that Mr Molina said first that he was approached by the concrete workers and was asked the question about work. Now, the evidence of Mr Molina was then that when being asked that question he then turned to the pump operators and engaged them specifically about specific opportunities that were available at ICPS. Now, that in effect does not contradict the evidence of Tony Bramich was that he was approached by Mr Molina and Mr Molina, who says although he may be familiar with or recognised Mr Graham, he didn't know his name and only described him generally.

PN452

So he approached someone that he certainly didn't know well and told him about particular opportunities that were available to someone with his particular skillset and then said - and I don't think the evidence of Mr Molina in any way contradicts this - said that he would act as a middle man by handing his card if he required further information in order to take up that position. In that context I don't think that there is any real issue about the broader context of what is the kind of conduct which the respondent is talking about. The issue is whether or not if this conduct is as the union has contended part of the business of the union, whether or not that is the case, it is our submission that it is not an act that is contemplated or intended by the Workplace Relations Act in the exercise of a right of entry.

PN453

And the reason is that it is something that clearly - and Mr Smedley gave evidence of this - something that clearly can cause prejudice and damage to the respondent by the loss of its employees should they be persuaded that they will get better conditions elsewhere in a specific case. Now, I take your point earlier in questions to, I think it was Mr Quigley, about you can find yourselves in conversations which are going this way and how is the union official supposed to deal with those kind of situations when talking about the weather, is that contemplated by the Act?

PN454

I think when a union organiser talks about the weather or the footy or the cricket with a particular person on site it is not in that regard acting on behalf of the union or representing the union in its comments. If the union organiser was to comment that, you know, the Dockers are going to win and that the Eagles are a bunch of whatever, that is not the view of the union and no one would expect it to be. Those aside conversations are not relevant. And then the issue then is to what extent should a union official allow these conversations to get to specifics, to get to a kind of conduct where a reasonable person might say this is an attempt to persuade or may reasonably persuade or induce a person to terminate their employment with BGC and go elsewhere to obtain further conditions? And that is the threshold we are looking at which you want to cross.

PN455

So to say that there is construction going on in the city or that heaps of work going up north, give me a call if you want the details, that is not poaching and we do not say it is. It is where specific instances and conditions and those kind of conversations ensue, and that's the circumstance we say might be reasonably be prevented by an order and are not in any way limiting the statutory right of entry as it is framed in the Act.

PN456

THE COMMISSIONER: Thank you, Mr Douglas.

PN457

MR DOUGLAS: Okay. Well, I might actually just pick up some of my other points.

PN458

THE COMMISSIONER: Yes. I've sidetracked you.

PN459

MR DOUGLAS: Thank you, sir. Sir, as I was getting to before, we say this dispute is about whether the respondent had a reasonably held belief that the officers of the applicant were engaged in the conduct I have just been referring to, which is conduct that might reasonably persuade or induce an employee to seek work at an alternative employer, and then in particular as to whether that conduct is an improper exercise of a right of entry pursuant to the Act, in particular section 760. Now, I might just pick up a chronology, a very short chronology and relate this to some of the evidence.

PN460

On 2 November Mr Molina attended the respondent's site we heard in the evidence and in the course of his visit, as I just related, it's not disputed that he discussed and made statements about the particulars of work at another site, providing his details and acting as a conduct. Now, the evidence of Mr Molina is that this conduct, advising workers of particular jobs that are available and providing his contact details as a conduct is proper union business and proper conduct while exercising a right of entry under the Workplace Relations Act.

PN461

Mr Wild gave evidence that providing workers on one employer's site with the details of specific work available on another site is part of the business of a union official entering the site for the purpose of investigating safety breaches. In that context, BGC refused entry to the CFMEU on 19 November and then again on 3 December, in particular where the respondent had asked that the applicant give an undertaking. Now, the undertaking was in fairly strong terms. It was not to engage in conduct that might reasonably induce a worker to terminate his contract of employment.

PN462

The applicants have denied that they engaged in poaching and they've denied that their conduct was of that kind in which case the fact that they didn't give the undertaking gives rise, reasonably gives rise to an inference that they either had or intended to in the future engage in such conduct.

PN463

THE COMMISSIONER: That's one of the inferences. There could be others.

PN464

MR DOUGLAS: There could be others. Reasonably gives rise to that inference is our submission. Section 770(7) of the Workplace Relations Act provides that a permit holder abuses this right of entry if he or she engages in recruitment conduct, is unduly disruptive either because the permit-holder's exercise of powers of entry is excessive in the circumstances or for some other reason and in addition, what we are in particular relying on is that a right of entry under the Workplace Relations Act might only be exercised bona fide for the purpose in which it was granted. In this regard we refer to IES Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2003) AIRC 830 and at paragraph 40 there is a quote from Mason, Murphy, Brennan, Deane JJ in O'Reilly's case that:

PN465

A power conferred by statute must be used bona fide for the purpose for which it is conferred.

PN466

And then Gray J in the Australian pilots case says:

PN467

If an authorised officer seeks to put into effect some purpose extraneous to that contemplated by the empowering provision of the statute by pretending to exercise any of the rights conferred by the section, there will be no valid exercise of any such right.

PN468

And then he goes on immediately to say:

PN469

A hindering of obstructing of the purported exercise will not be an offence.

PN470

And that is the framework on which the respondent acted to prevent on 3 December in particular the right of entry or the purported right of entry of the CFMEU on their failure to give the undertaking that they would not engage in this conduct. The grounds for the respondent's reasonably held belief that has come in the evidence is that the respondent had been reliably informed that on 2 November the applicant engaged in what we've been calling poaching pursuant to a right of entry and that the respondent wrote to the applicant through its lawyers on
3 December and that it would not give the undertakings.

PN471

In addition, there was the issue of the invalid notice so if you recall, on
19 November the evidence was that the right of entry for five consecutive days was refused on the basis that it was an improper notice. Mr Kennedy's evidence here was fairly unclear whether there was in fact any good reason for the five days so that leaves the Commission with the issue in our submission of finding on whether not so much whether or not the poaching in particular occurred, but whether this is an improper exercise of the statutory right of entry.

PN472

We've submitted in my written submission that the right conferred under section 760 is properly used to hold discussions with union members and other employees eligible to become members. As Mr Quigley has surveyed, there's very little guidance on what those discussions and the scope of those discussions is, but I've referred in my written submissions at paragraph 18 to the judgment of Dethbridge J in the Timber and Sawmill Associations and Others v The Timber Workers' Union, [1935] CthArbRp 143; (1935) 35 CAR 126 and a quote that appears in the judgment I referred to earlier, IES Australia and I've emphasised the passage that:

PN473

The risk would induct the union to select visiting officials with care so that neither the employer nor his employees shall be unduly harassed.

PN474

In our submission, conduct of union officials seeking to poach employees away from their current employment is not a legitimate use of a right of entry and is undue harassment of BGC and in particular it's not the proper business of a union when entering onto the property of an employer under a right of entry under 760 to act as a contact or conduit for a competitor. We've also submitted that were this conduct to occur that it is arguably an abuse of the Act pursuant to section 770(7) in that it is recruitment conduct that is unduly disruptive and the evidence of that undue disruption was given by Mr Smedley in that the prejudice that a company can suffer if employees do leave, are induced to leave during a contract and we submit that in the case of a member who is not a union member as is the case you will see in the affidavit of Mr Graham, that this is recruitment conduct in that to persuade a non-union member to work on a unionised site is to encourage him to become a member of the union and so recruitment conduct as that term is defined in section 770.

PN475

I might in closing just have a look at the proposed orders of the applicant. The respondent has sought an undertaking from the applicant as we've covered and seeks an order from the tribunal to prevent the applicant from using the right of entry to induce employees to terminate their contracts of employment and work elsewhere. The respondent submits that the undertaking sought would not limit the applicant's statutory right in any way since it is not a proper purpose of the right of entry to engage in poaching and so that in that sense it's a proper order of the Commissioner to make in our submission in that it will clarify what clearly is a matter of some confusion to the officials of the union to whether or not what they consider is a business of the union which may or may not be the case is also the proper exercise of a right of entry. In other words, the way in which they might properly engage employees or workers on the site regarding work that's available elsewhere, the way in which they do that on site when exercising the statutory right of entry, where there is clear prejudice that may occur to the employer is something that would be assisted by an order of the Commission.

PN476

In relation to proposed order number 3 which concerns the respondent giving directions to the applicant about where it might reasonably hold discussions, first we submit that the respondent clearly has a right to do this under the Act and we refer to section 765(3) and (4) and as you have yourself, sir, pointed out, section 771 is not exercisable by the Commissioner, so it may well be that you're not even empowered to make this, whether or not you were minded to do so otherwise on the evidence.

PN477

In our view, the respondent hasn't provided evidence of the reasonable grounds on which it has directed the union officials to engage in discussions outside the smoko shed and therefore we submit that it was a reasonable exercise of that statutory right and finally in relation to the fourth order proposed by the applicant, the respondent submits that if the intention of the legislation was to permit the permit holder to hold discussions in private or exclude the employer from discussions, the Act would have specifically made such provision. It only provides that the employer must not hinder or obstruct a permit holder under section 767(7) and accordingly there's no power under the Act for the Commission to make the proposed order where there has been or if the Commission comes to the view that standing 40 metres away to view - rather than interrupt the discussions is undue harassment, so in conclusion we say that the right of entry under 767 must be exercised for a proper purpose.

PN478

The respondent has not acted improperly or in breach of the Act where it prevented the applicant from exercising a purported right of entry where they believed on reasonable grounds that the applicant intended to abuse the right of entry in a way that would prejudice the interests of the respondent and the respondent to exercise its right under the Act to make reasonable direction regarding whether the applicant may hold discussions and the respondent's presence during the applicant's discussion with employees is not a hindering or obstruction of the applicant's exercise of its rights, so we say the orders sought by the respondent in the minute of proposed orders would effectively resolve the dispute in accordance with the objects of part 15 of the Act which on the evidence seems to be very much misunderstood, where the distinction between what might be a proper business of the union in a general sense is not a proper activity to be undertaken while exercising a right of entry under the Act. If you have any further questions, sir - - -

PN479

THE COMMISSIONER: The minute of proposed order that BGC would like the Commission to issue talks about conditioning the right of entry such that a permit holder must not engage in any conduct that could reasonably be construed as an attempt to induce, encourage or excite employees on the site to terminate his or her contract of employment with the respondent and so forth. Mr Douglas, I am wondering whether an order like that would settle the dispute between the parties or is it just going to form if you like a new platform for argument as to whether what perhaps occurs in the future involves conduct of inducing, encouraging or inciting employees to terminate their contracts. The difficulty it seems to me with that proposal, given what I am limited to, is issuing orders that would settle the disputes between the parties here, is to be satisfied that an order as BGC suggests would actually settle anything. Are we not going to potentially have a situation where you are just arguing really the same argument, but from a different platform? Am I making myself clear?

PN480

MR DOUGLAS: You are making yourself clear, sir.

PN481

THE COMMISSIONER: In the ATO case which has been mentioned where you have if I can put it this way, a much more practical dispute between the parties, is it reasonable for the employer to require the union to take route A or B to talk to employees? Is it reasonable to require them not to engage with them at their desks, for instance, very practical hardware type issues? This is software type issues, whether what they say and how they conduct themselves is going to have a certain effect on employees so the range of behaviours that may fall foul of the order is undefined. It seems to me that the very nature of the dispute between the parties isn't going to arguably be resolved by the order that BGC proposes here.

PN482

MR DOUGLAS: Sir, I think what needs to be done is that an order, some order ought to issue from the Commission which clarifies whether or not it is proper in the exercise of the right of entry to approach or respond with direct descriptions and to relate specific jobs that are available, specific work that is available at specific employers and to act as a contact or a conduit for those employees. In other words, it is to the prejudice of BGC for someone representing another employees to come on site and advertise and act as a contact for that employer. That clearly prejudices BGC.

PN483

An order needs to be framed which says that that is not proper conduct and the witnesses say that this is the proper business of the union. Now, whether or not that is the case and it may well be the case that that is something that in general they may be available to do, but they ought not to do that under a right of entry, so we're looking to frame an order which says that you can't come on site under a right of entry and represent and give details of specific jobs available for other employers. Framing an order of that manner, I mean, it might be as specific as that. The order might be that it is not a proper right of - well, it comes in one of the declarations.

PN484

A permit holder of the applicant be prevented from providing specific terms, conditions and acting as a contact for an alternative employer in a way that might reasonably induce an employee of BGC to terminate his or her contract of employment. Maybe the order might need to be more specific than it actually is, but I think that the mischief that's aimed at is fairly clear and it's up to the Commission to decide whether that is a proper or improper exercise of the right of entry in our view, that is the question for today and that would be the solution to the dispute if a ruling were made on that issue and an order would effectively give the parties guidance on whether or not that is proper conduct and if the union says that it does not engage in that and has no need to and does not intend to, then it suffers no prejudice going forward and BGC will let them on the site without any question.

PN485

THE COMMISSIONER: For example, the difficulty I foresee with the approach you're promoting is advising a group of employees that there is employer X who has work available, Y being paid at rate Z may be information those employees use to their advantage some time later when they as they were always intending to cease working with BGC. In other words, it doesn't actually trigger any action in terms of their relationship with BGC. It's just information for the future. The nature of this industry is such that that wouldn't be unreasonable, but it seems to me that a few words either side of the same information can change that information into inciting and inducing the employees.

PN486

This is the information, company X at this location, Y on these terms and conditions, Z, and if I were you guys, I'd jump ship today and be working there tomorrow, the same information shared in a different way would fall foul of your order so this is what troubles me. I think we can wind up not much further advanced in terms of resolving the dispute, Mr Douglas.

PN487

MR DOUGLAS: I think what is clear is that if a question were put to a union official, where is work going and the union official said there's heaps of work going, contact the union if you want some more details, that is not inducing and it is opening the door for if the employee were to make the approach to the union and say give me some specifics, it may well be outside the employer's site, the business of the union to assist the employee to find some better working conditions, some better pay. Where the employer goes into the specifics while doing a safety walk, while purportedly holding discussions and BGC has let them on in good faith for that statutory purpose and they are exercising their other business to BGCs detriment, then we say that is improper purpose and the additional point, sir, is that even if it is neutral, you say that, okay, well, the employer may not do anything with that, they will wait until their contract is up or they will give their proper notice some time when they're no longer dissatisfied, it is still we say an improper exercise of the right of entry and that in itself, this is a statutory right of entry.

PN488

It is limited particularly for a particular purpose and the intention of the Act I think, it's not within the intention of the Act to use it for those other purposes. It's perfectly reasonable for the union to say this is who we are, if you have any issue at all, come and approach us, but to be conducting its business in that way, it's other business on the employer's site which may reasonably prejudice the employer. That is something which we say is improper and to the detriment of BGC.

PN489

THE COMMISSIONER: Thank you, Mr Douglas.

PN490

MR DOUGLAS: Thank you, sir.

PN491

THE COMMISSIONER: Ms Bowie, I will just give you an opportunity to respond. I don't believe you dealt with the minute of proposed order that BGC have put forward. You've heard the issues I've raised there. Is there anything you want to respond to there?

PN492

MS BOWIE: Just in terms of my friend has said that the respondent believes there is no need for the Commission to decide whether or not poaching had in fact occurred, just that, they were seeking an order that it didn't occur in the future, the applicant has stated and given evidence that they haven't poached and have not intended to poach and it's our submission that the Commission would actually need to address the question of whether or not poaching occurred in order to allow such an order that says they can't poach any more. To say that they can't poach infers that poaching has occurred in the past, so we would say that it's a matter that the Commission needs to decide on the facts as to whether or not poaching has occurred and whether or not the Commission thinks that it's going to occur in the future.

PN493

THE COMMISSIONER: Thank you. It's my intention to shortly adjourn this matter. My decision will be reserved, but before I do adjourn, the matter is complex, it is of importance to both parties. As has been pointed out, these are relatively new provisions. There remains an opportunity I would point out to both parties, particularly if one considers section 775 which deals with the kinds of orders that can be issued out of these proceedings in that that expressly in 775A refers to the opportunity for consent orders to be issued out of these proceedings. It's my intention as I say to reserve my decision. Writing that decision will take some time.

PN494

During that time, there is an opportunity if the parties wish to engage each other and with perhaps the intent of coming to some resolution, there has been a very healthy I think airing of the concerns of both parties, so both sides are now fully aware of the views and attitudes and concerns for the future of both parties. With that background, if the parties can see their way clear to putting together some form of consent order, that would obviously potentially be more desirable than the other alternative which is should I be minded to make an order that an order is imposed which may or may not be to the pleasure of one or the other parties, so I will leave you with that thought. On that basis, the Commission is adjourned.

<ADJOURNED INDEFINITELY [3.01PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

WALTER MOLINA, AFFIRMED PN33
EXAMINATION-IN-CHIEF BY MS BOWE PN33
EXHIBIT #A1 WITNESS STATEMENT OF WALTER MOLINA PN37
CROSS-EXAMINATION BY MR DOUGLAS PN51
RE-EXAMINATION BY MS BOWE PN111
THE WITNESS WITHDREW PN121
WAYNE JASON WILDES, SWORN PN122
EXAMINATION-IN-CHIEF BY MS BOWE PN122
EXHIBIT #A2 STATEMENT OF WAYNE JASON WILDES PN125
CROSS-EXAMINATION BY MR DOUGLAS PN145
RE-EXAMINATION BY MS BOWE PN179
THE WITNESS WITHDREW PN187
PHILLIP SHANE KENNEDY, SWORN PN188
EXAMINATION-IN-CHIEF BY MS BOWE PN188
EXHIBIT #A3 WITNESS STATEMENT OF PHILLIP SHANE KENNEDY PN191
CROSS-EXAMINATION BY MR DOUGLAS PN221
RE-EXAMINATION BY MS BOWE PN256
THE WITNESS WITHDREW PN261
PAUL JOHN SMEDLEY, SWORN PN281
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN281
EXHIBIT #R1 WITNESS STATEMENT OF PAUL JOHN SMEDLEY PN283
CROSS-EXAMINATION BY MS BOWE PN312
THE WITNESS WITHDREW PN356