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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 18964-1
SENIOR DEPUTY PRESIDENT WATSON
C2008/2704
s.496(1) - Appl’n for order against industrial action (federal system).
Bovis Lend Lease Pty Ltd
and
Construction, Forestry, Mining and Energy Union Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia
(C2008/2704)
MELBOURNE
9.42AM, THURSDAY, 14 AUGUST 2008
Continued from 8/8/2008
PN2047
MR N GREEN: May it please, your Honour, I now seek leave to appear with MR E QUIGLEY.
PN2048
THE SENIOR DEPUTY PRESIDENT: Yes, any issues with that? No, leave is granted, Mr Green.
PN2049
MR GREEN: May it please the Commission
PN2050
THE SENIOR DEPUTY PRESIDENT: I should indicate at the outset the expected behaviour of persons in the court, both whilst in the precinct of the court and outside of the court in relation to these proceedings and witnesses within these proceedings. It is expected that everyone within the court will behave appropriately, remain silent during the course of the proceedings and not direct any interchange towards witnesses past or future in the proceedings. As I indicated on the last occasion it is an offence under the Act to intimidate witnesses in court proceedings in any manner, either during the course of the proceedings within the court or outside of the court, and any behaviour which might be thought to be intimidatory of witnesses is an offence punishable by imprisonment and I would ask that all involved in these proceedings, both whilst in the precincts of the Commission and outside should behave in an appropriate manner and not direct any abuse or commentary towards witnesses. Mr Kimber, I think we were up to your next witness.
PN2051
MR KIMBER: Yes, thank you your Honour. I think Mr Green has something he would like to raise before we commence with the next witness.
PN2052
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Green.
PN2053
MR GREEN: Your Honour, there is a preliminary matter I would raise. Your Honour has, on a previous occasion in effect ruled that those cross-examining the witness are free to do so even though there is no evidence to the contrary that has been put on. May I say that I have read the transcript of proceedings, and of course I haven't been present during them, your Honour has the advantage of me in that respect, however, I am conscious that on the last occasion your Honour did make a remark about the issue with which these proceedings are concerned and I'll just turn up the PN reference number if I may, your Honour.
PN2054
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2055
MR GREEN: It's PN612. This was on the last occasion the Commission sat and there was an exchange between your Honour and my learned friend Mr Kimber. your Honour said:
PN2056
There is no issue of public interest now is there? The question is simply whether or not there is industrial action or organised industrial action. If that is the case, the only issue then is the form of the order.
PN2057
Then Mr Kimber responded. Your Honour then said:
PN2058
There is no discretionary element if industrial action is - - -
PN2059
Mr Kimber:
PN2060
Well I accept that, if that is made then we won't need to cross that bridge.
PN2061
Your Honour, as I follow the position there are two things to be said. The first is that there are still a number of witnesses to be cross-examined and indeed there are witnesses to be examined in-chief as well. The second thing, your Honour, is that on an earlier occasion a most significant forensic development took place when your Honour was having an exchange, this was on 7 August. On 7 August your Honour was having an exchange with my learned friend Mr Kimber again, and having had that exchange - and I am referring to PN332. Your Honour said:
PN2062
Yes, well I'll check that with the unions.
PN2063
Your Honour turned to the advocates for the unions, so it appears and asked:
PN2064
What evidence do the unions intend to call?
PN2065
My learned friend Ms Gooley responded:
PN2066
Your Honour, the ETU does not intend calling any evidence.
PN2067
Then Ms Walters said:
PN2068
Your Honour, the CFMEU does not intend on calling evidence.
PN2069
Then your Honour returned to Mr Kimber and said well, that's what you're faced with Mr Kimber. Your Honour, in the light of what had preceded that, namely on the first day when there had been rumblings or noises about a case that was going to be bigger than Ben Hur, that was a most significant development, and your Honour hat leads me to make the submission, if I may. The submission advanced is that even though your Honour's proceedings have gone to this point on the basis that the advocates have been at large as it were in relation to cross-examination, we submit that from this point on, your Honour should entertain, giving a direction under paragraph C of section 111(1) and the direction your Honour would be to this effect - perhaps before I go to the content of the direction I will take your Honour to the source of the power.
PN2070
111(1) says, if I can edit the words,
PN2071
The Commission may do any of the following in relation to a proceeding under this Act; c) give directions orally or in writing in the course of or for the purposes of procedural matters relating to the proceeding.
PN2072
We submit, your Honour, in light of the matters to which we have just taken your Honour, it would be appropriate for your Honour to give a direction that unless there be evidence to the contrary upon which cross-examination be founded, then no party be at liberty to cross-examine the witness in respect of this particular matter. Your Honour, in the ordinary run of things, and of course I am addressing myself to a non-criminal proceeding here, the purpose of cross-examination is to test evidence as to matters that are in contest.
PN2073
In other words, the contested matters of act are explored and probed and tested per medium of cross-examination. That, with respect, is the primary purpose of cross-examination. Having regard to your Honour's characterisation of the issue, that leaves precious little, it is submitted, as to which it would be appropriate for anyone to cross-examine, particularly parties who have put their hand on their heart and told the Commission they are not going into evidence. Your Honour, the second purpose that is usually attached to cross-examination is that related to credit. I say two things about that. In the ordinary run of things, in this Commission, exercising industrial jurisdiction as it does, credit questions don't generally take on the same significance as they do in courts, be it civil or criminal.
PN2074
One can contemplate, for example, in an unfair dismissal matter where there is some hotly contested fact about whether someone took some money or was at work at a particular time or turned up drunk at work or what have you. One can well imagine where questions of credit in that context have to be agitated and pronounced upon when it comes to the findings, but this is a different kettle of fish, it is submitted. It seems to be common ground that the issue, as characterised by your Honour in that passage to which we took you, is the issue and that informs questions of what is relevant when it comes to cross-examination and out of that issue falls the residual question of what credit, if any, is there for the wash up.
PN2075
Your Honour, the only disadvantage of your Honour's making that direction is that if you did make it it would in effect shift the direction of the proceeding into a slightly different direction from where it has up till now come. But, your Honour, it is submitted, with respect, as to that it would be better late than never. Certainly having regard to the body of material that appears to remain, in light of the matters that have now crystallised since this proceeding kicked off, this would be an appropriate juncture at which to make a direction of the kind for which we are submitting. If your Honour pleases.
PN2076
THE COMMISSIONER: Does anyone else wish to be heard in respect to that? Yes, Mr Quigley.
PN2077
MR QUIGLEY: Yes, your Honour, we join in that submission from Mr Green. Last week when the matter proceeded on Friday and there was cross-examination about the merits of the scheme, even though your Honour had indicated that you really wouldn't be assisted, that proceeded and that event occurred. What is apparent from the cross-examination that has already taken place is there does not seem to be, from the two witnesses that have already been dealt with, serious challenge to the matters in issue. What is sought to be identified and agitated by the unions has been their concern about the asserted demerits or lack of utility in the scheme. So regardless of what has happened to date there is certainly no utility in a broad permission being continued for the unions. To the extent that they wanted to till over the soil they did so with the first two witnesses, and so in that sense we would join in the idea that henceforth that really shouldn't be permitted, for all the reasons that Mr Green has identified. If it please the Commission.
PN2078
THE SENIOR DEPUTY PRESIDENT: Yes. Ms Gooley.
PN2079
MS GOOLEY: Thank you, your Honour. Your Honour, before I start I just wonder whether it was possible, given that we are a bit cramped, that those who are instructing rather than appearing as counsel could sit on the other side of the bar table as is the usual practice in the Victorian jurisdiction, because I'm just finding it very cramped here and now Mr Green is here we seem to have his instructor on this side of the Bar table as well.
PN2080
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Quigley?
PN2081
MR QUIGLEY: I am happy to move, your Honour.
PN2082
THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that Mr Quigley.
PN2083
MS GOOLEY: Thank you, your Honour, it's just a bit squishy. Our primary submission, your Honour, is of course that this matter has already been ruled on. Our secondary submission is this. The matters that are in dispute in this proceeding is whether industrial action is in fact occurring, and one of the fundamental questions is what is industrial action. One of the fundamental issues behind that is whether in particular a refusal to obtain a blue glue card, a refuge to use a blue glue card is in fact industrial action, and lying behind that is whether using a blue glue card is a reasonable and lawful direction that a contractor can give to an employee, and whether it's a direction that the BLL can actually give to an employee.
PN2084
We are entitled to test the evidence put forward by the applicant in relation to those matters and that is what we are doing. We don't intend putting anybody in the witness box but we have put documentary evidence to witnesses and we intend to do that in today's cross-examination. So we submit that it is not appropriate to say in a proceeding that in fact is I would argue quasi-criminal given that under the Workplace Relations Act of course compliance with 496 orders is in fact subject to the possibility of a 12 month gaol sentence. That you should not restrict the ability of those who are opposing the making of such an order, the ability to cross-examine witnesses. If my friends form the view that the questions we are asking are irrelevant, then they can raise those objections.
PN2085
As we said on the last occasion, it is ironic that it is said that we are asking irrelevant questions when we are in fact questioning the witnesses on the very matters that they have put in-chief. If those matters weren't relevant in-chief then I agree they are not relevant in cross-examination, but that was a decision that the applicants put and on the last occasion I did invite them to delete all irrelevant evidence so that we didn't cross-examine on it. The issue of the nature of the blue glue card system is highly relevant to the question about whether it is a reasonable and lawful direction and we are entitled to cross-examine the witnesses as to the nature of that scheme, albeit that some of them do not appear to have a great deal of knowledge about that scheme. But it is a fundamental element that makes up the question of whether a direction to use it is lawful.
PN2086
If you find that the direction to use the blue glue scheme is unlawful this matter is over. So we say that we are entitled to test the witnesses so that you have the information before you to enable you to make your decisions, and the fact that we are not calling any witness evidence is not relevant to that matter.
PN2087
THE SENIOR DEPUTY PRESIDENT: Ms Walters.
PN2088
MS WALTERS: Nothing further, your Honour, the CFMEU supports the submissions of Ms Gooley in relation to that matter. The penalty provision within the Workplace Relations Act that Ms Gooley took you to, for the sake of transcript, is section 814(3) which deals with the penalty for breaching an order of the Commission, if your Honour pleases.
PN2089
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Green.
PN2090
MR GREEN: Just a few short matters in reply your Honour. My learned friend Ms Gooley has said we are entitled to test the evidence. Be that as it may, the real question is whether there is a foundation constituted by a contrariety of material upon which to test the evidence. Because there is no sub-strata of contrariety here, the test or the ability to test, forensic wherewithal if you like to test the material falls to the ground, doesn't get off the ground. The second thing we would take issue with is this. Ms Gooley said that well, this is if you like a quasi criminal proceeding. It's not. Whether an order be made that builds upon the interim order that is already in place is not at all a quasi criminal matter, it's a straight civil application upon which the Commission as an industrial tribunal pronounces.
PN2091
If further down the track there be a final order in place and one of the persons or parties bound by that order disobeys it, then at another time in another place, one enters the realm of the quasi criminal, but until that juncture is reached that's all that may be. Our learned friend Ms Gooley also said that the nature of the blue glue system is in issue. Well, yes, to some extent that is true, but the blue glue system isn't sitting in the dock, as it were, and this is not a congressional inquiry into that system. In the end the Commission is either going to be satisfied that an order ought to be made under the section invoked or not. Sure you look at what the background is against which the conduct complained of comes to be placed before the Commission, but this Commission, it's no task of this Commission to pronounce upon whether the blue glue system is a beaut system or a bad system or an indifferent system. In a sense it's incidental to the narrative. The narrative is shaped by whether the provision under the section of the Act invoked is satisfied.
PN2092
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Kimber.
PN2093
MR KIMBER: Your Honour, the only other matter I wanted to add was that Ms Gooley suggested that is it a reasonable and lawful direction that the employer or BLL can give is a critical matter and she further suggests that if it is suggested it was an unlawful direction to comply with then this matter is over, we don't accept that by any stretch of the imagination.
PN2094
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2095
MR KIMBER: We just wanted to make sure that we don't accede to that proposition at all and we have submissions to make about what the object of this part of the act is all about.
PN2096
THE SENIOR DEPUTY PRESIDENT: Very well. I do not intend to make an order or direction of the type sought by Mr Green. The cross-examination in relation to the blue glue system is not, on my understanding, directed to an assessment of the merits of that system, but rather to the question of whether a failure or refusal to comply with directions to obtain and utilise the cards constitutes industrial action. That is one of the forms of industrial action complained of by the applicant and arises squarely from the order sought in Exhibit BLL5 which seeks to characterise a failure or refusal to obtain the cards as one form of industrial action complained of, and one form of industrial action the applicant seeks be reflected in the order sought.
PN2097
In those circumstances it is my view there is an entitlement to cross-examine in relation to that matter for that purpose. Obviously if any particular questioning is thought to be irrelevant the opportunity exists for objection during the course of cross-examination, but as a general proposition I am not satisfied that the cross-examination is irrelevant and should be prevented by order or direction of the Commission.
PN2098
MR GREEN: May it please the Commission.
PN2099
THE SENIOR DEPUTY PRESIDENT: Mr Kimber.
PN2100
MR KIMBER: Your Honour, before I call the next witness, Mr Ranzolin, who is the deponent of BLL3, there are two things I should attend to. Firstly to indicate that regrettably we have just been informed there is apparently industrial action taking place on one of the project sites and that may well require us to bring yet further evidence to the Commission today, bearing upon the application before the Commission but I am waiting for some instructions about what is actually taking place on site.
PN2101
THE SENIOR DEPUTY PRESIDENT: Are you able to identify the site Mr Kimber so that if it does arise - - -
PN2102
MR KIMBER: ANZ site.
PN2103
THE SENIOR DEPUTY PRESIDENT: Ms Gooley and Ms Walters can make inquiries as well.
PN2104
MR KIMBER: Thank you. The second matter arises out of the remarks that just fell from the Commission concerning the order sought. We have since last Friday given some further consideration to the formal order and we have amended it in two respects. We have provided that to Ms Gooley and Ms Walters this morning and I have indicated might I tender the revised form of order that we press for on a final basis.
THE SENIOR DEPUTY PRESIDENT: Yes, I will mark the final order exhibit.
EXHIBIT #BLL6 REVISED FORM OF ORDER
PN2106
THE SENIOR DEPUTY PRESIDENT: In what respect is it amended Mr Kimber?
PN2107
MR KIMBER: If your Honour looks to clause 2 definitions. For the purpose of this order you will see in sub-paragraph (1) there is reference to failing or refusing to obtain the blue glue cards. The words that were in the earlier version of the order sought, added the words at the end are - that your Honour made in fact in the interim order out of the words - I should indicate what it was in precise terms. I made reference to "upon a lawful direction to do so", yes the one that was made. Your Honour's interim order had the additional words:
PN2108
Upon a lawful direction from their employer to do so.
PN2109
In our order we say that those words are unnecessary. So we have deleted them and will indicate why that has happened. Secondarily you will see that we have added: failing and refusing as the next - I think in the document that's been handed up (ii) looks like it's crossed through, it shouldn't be. That's the new provision:
PN2110
Failing or refusing to use the BG cards issued to them by BLL.
PN2111
Your Honour had struck earlier versions in the application where we talked about surrendering or confiscation of cards, but we have submissions as to why this would be an appropriate form of order on a final basis.
PN2112
THE SENIOR DEPUTY PRESIDENT: Certainly.
PN2113
MR KIMBER: I think the only other changes that really are what one would expect to find in the difference between an interim order and a final one and perhaps in that sense on the last page, page 4 the issue of the duration of the order has also been addressed, which of course in the interim order was only until further order.
PN2114
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2115
MR KIMBER: But other than that there are no other substantive changes.
PN2116
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2117
MR KIMBER: If it pleases the Commission, might I call Mr Ranzolin to give evidence.
PN2118
THE SENIOR DEPUTY PRESIDENT: Mr Kimber, you were about to say - - -
PN2119
MR KIMBER: Consistent with your Honour's ruling about the witnesses, the other witnesses have left the court.
THE SENIOR DEPUTY PRESIDENT: Thank you.
<LOU RANZOLIN, RECALLED AND RESWORN [10.10AM]
<EXAMINATION-IN-CHIEF BY MR KIMBER
PN2121
MR KIMBER: Mr Ranzolin, just for the purpose of the record is your name
Lou Ranzolin?---Yes, it is Lou Ranzolin.
PN2122
Is your address (address supplied)?---That is correct.
PN2123
You are the general foreman at the Royal Children's Hospital site and you are employed by Bovis Lend Lease Pty Ltd, is that correct?---Correct.
PN2124
The affidavit that you have prepared in connection with this matter has already been marked in these proceedings BLL3 and you have
a copy of that with you?
---Correct.
PN2125
With respect to that affidavit, Mr Ranzolin, is there any aspect of it that you feel the need to bring to the Commissioner's attention that you might want to correct in any respect?---Yes, there is.
PN2126
Can you indicate what paragraph and what's the nature of the correct?---Paragraph 36 where it reads, "Second line was for all other." It should read, "Was for all Bovis workers."
PN2127
That's BLL as we've called it is it?---Yes, BLL.
PN2128
It should say, "BLL" rather than "other"?---Other.
PN2129
Yes?---And then it should read, "For others who were tool boxed that day, not Caylees and Bovis." So delete, "Caylees and Bovis" and it should read, "except for other trades that were tool boxed that day."
PN2130
It should say, "Except for other trades"?---Yes.
PN2131
THE SENIOR DEPUTY PRESIDENT: "Who were tool boxed that day instead of who already have their cards," is that right?
PN2132
MR KIMBER: Is that right, are the words, "who already have their cards" also sought to be removed as well?---No, that should stay with Bovis, that should be in brackets after "Bovis".
**** LOU RANZOLIN XN MR KIMBER
PN2133
I see, the bracket entry governs the words, "BLL workers", is that right?
---Correct.
PN2134
"Who already had their cards."?---Correct.
PN2135
Then it says, "Except for other trades," and what did you say?---"Except for other trades who were tool boxed talked to that day."
PN2136
THE SENIOR DEPUTY PRESIDENT: "Who were tool box talked to that day."?---"Tool boxed that day."
PN2137
MR KIMBER: Another tongue twister your Honour, we've been dealing with blue glue and now we've got tool boxed talks, tool boxed that day. Perhaps apart from the wording could you indicate what is the effect of the correction, what are you telling the Commission is your evidence?---OK, so - - -
PN2138
Just wait a minute.
PN2139
MS GOOLEY: I'm sorry for interrupting, it appears that the witness has a witness statement that has comments on it, yellow tags, underlinings and notes, et cetera, I wonder whether the witness could have only in the witness box with him a clean copy of his statement.
PN2140
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2141
MR KIMBER: I don't know that there's any need for that sort of direction one would have thought.
PN2142
THE SENIOR DEPUTY PRESIDENT: I'm sorry?
PN2143
MR KIMBER: He can be asked about it if it's germane in any way, it would be odd if he were to be so confined.
PN2144
THE SENIOR DEPUTY PRESIDENT: I think it's a question of whether the witness has additional notes which he's utilising.
PN2145
MR KIMBER: He can be asked about that if he is.
PN2146
MS GOOLEY: I don't know what the notes are.
**** LOU RANZOLIN XN MR KIMBER
PN2147
THE SENIOR DEPUTY PRESIDENT: Do you have notes?---It's just to help me guide through referencing back to the affidavit, to LR3 and where I had to make a correction.
PN2148
I'm sorry, you've tagged - - - ?---Tagged where I had to make that correction and I've tagged where the LR4 relates back to the affidavit.
PN2149
MR KIMBER: It's an index to your evidence?---It's just an index, correct.
PN2150
MS GOOLEY: Maybe if I could actually see the document your Honour to see whether there is any problems with it.
PN2151
MR KIMBER: Might I have a look at it first in light of this.
PN2152
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2153
MR KIMBER: I must say I'm somewhat surprised that in this context that this should be happening, but be that as it may.
PN2154
THE SENIOR DEPUTY PRESIDENT: Ms Gooley? Yes, very well, thank you. Mr Kimber.
PN2155
MR KIMBER: Mr Ranzolin, I had asked you - I know you've assisted His Honour with the wording changes in paragraph 36, what is the essence of what that second sentence should have conveyed, could you just tell His Honour in round terms what you were seeking to convey?---It was to let the workers know about the blue glue system, to inform them that the date was nearing when we were going to implement blue glue.
PN2156
Other than that correction is there any other correction in your affidavit that you would seek to draw His Honour's attention to?---Yes, there is, just on 32.
PN2157
I'm sorry?---Paragraph 32.
PN2158
Yes?---It just reads: "There are approximately seven CFMEU and ETU organisers on site."
PN2159
Yes?---My diary record has got four CFMEU.
**** LOU RANZOLIN XN MR KIMBER
PN2160
You want to identify that as four CFMEU?---correct.
PN2161
Do you have anything to say about the number of ETU if any?---No.
PN2162
What's the effect of it? Should it read: "Approximately four CFMEU organisers on site," with no reference to the ETU?---Correct.
PN2163
Might that correction be made your Honour?
PN2164
THE SENIOR DEPUTY PRESIDENT: Yes, certainly.
PN2165
MR KIMBER: You indicated what was the source of that correction, what document did you look to for that purpose?---From my diary notes.
PN2166
Is that one of the documents that is attached to your affidavit as one of the annexures? I mean is the extract from your diary that governs that particular point already annexed or have you otherwise looked in your diary?---Just give me a minute.
PN2167
Anyway, I'm sorry I didn't mean to delay you but I note that the other thing you have in your witness box is the diary extracts of which are annexed to your affidavit, is that right?---Correct.
PN2168
That is the document in the blue diary that you have on the table there in front of you, the witness box, is the document you checked for this purpose?---Correct.
PN2169
Can I ask you about that diary, what is your practice with respect to its completion, why do you keep a diary for a start?---Yes, we keep a diary to keep all records kept for that day.
PN2170
Relating to what?---Industrial safety, trades working on site, conversations, meetings, et cetera.
PN2171
What is your practice with respect to the completion of that diary?---It's a daily event for myself.
PN2172
Do you fill it in as a matter of routine if you have a routine?---End of the day, sometimes during the day.
**** LOU RANZOLIN XN MR KIMBER
PN2173
How long have you adopted that practice with respect to keeping a diary?---For a long time, yes, for a long time.
PN2174
Can I just ask you one final thing in relation to your evidence. You are the general foreman at the Royal Children's Hospital site, is it within your knowledge to know how many blue glue cards had issued as at the time that you swore this affidavit on 5 August?---291.
PN2175
Cards that issued?---Yes.
PN2176
What was the size of the sub-contractor workforce, employees of sub-contractor, what proportion of that?---Issued?
PN2177
Yes?---About 200.
PN2178
Perhaps I need to ask a further question, when you say 291 cards had issued by the 5th, to whom had they been issued?---To our own employees?
PN2179
Yes?---To other trades on site and there's delivery and visitor cards.
PN2180
When you say two other trades on site, which trades are they?---TLS Steelfixing and HWM Contractors.
PN2181
How many sub-contractor employees or sub-contractors are there on your site, what is the overall number in broad terms?---About 150.
PN2182
That's separate from the 291 that you refer to, is that right, in addition to or is that a subset?---Sorry, repeat the question.
PN2183
When you say there's 150, that 150 you refer to is that in addition to the 291 that you've already referred to or is it part of it?---That's part of the number, yes.
PN2184
So as at the present time, since you swore your affidavit, are you able to indicate how many further blue glue cards have actually issued to any employees working on site?---Eight just recently, yes.
PN2185
Since the 5th?---Yes.
**** LOU RANZOLIN XN MR KIMBER
PN2186
How many more cards would need to be issued for the process to be complete?
---Approximately 100.
PN2187
In terms of that 100 or that approximate 100 in what category are the employees, do you know, the ones that haven't taken up their
cards at this moment in time?
---There's three trades.
PN2188
Which are they?---Caylees, LE Craft and CLG/CDC Joint Venture.
PN2189
Can you just indicate to His Honour in turn what each one of those sub-contractors, what is the nature of the work they undertake?---Caylees, they're a structural sub-contractor; LE Craft's an electrical contractor, and CLG/CDC Joint Venture they're a plumbing contractor.
PN2190
I will just inquire of your Honour, I note from Mr Ranzolin's affidavit that at least my copies of the annexures aren't in colour which we raised last week in relation to Mr Broadhead. Does your Honour have them in colour?
PN2191
THE SENIOR DEPUTY PRESIDENT: I have them in black and white but it seems not to cause any difficulty in reading it.
PN2192
MR KIMBER: Yes, that was one of the things I wanted to ask. Certainly on my copy - perhaps I can attend to it this way. If you just turn to the first annexure to your affidavit, there is a series of obviously photographs that were taken at various signs around the site or outside the site, on the very first one where there is, it looks like astro boy's sister there holding a teddy bear, just above there where it says "lend lease", then there's some words there written. Are you able to indicate what those words are under the heading "lend lease" and just before the word "incident", what that actually says? Is it "HM Prisoner Bovis", is it something to that effect?---"HM Prison Bovis has got to go, support union right of entry."
PN2193
THE SENIOR DEPUTY PRESIDENT: That appears on each of the other photographs in the same terms.
PN2194
MR KIMBER: That's why it's there, because of that particular entry?---Yes.
**** LOU RANZOLIN XN MR KIMBER
PN2195
Do you put these on to demonstrate that particular entry that's difficult to read. Is that the point?---Sorry, repeat the question?
PN2196
In terms of the fact that you have extracted these things with your affidavit, were they attached to your affidavit for that purpose, to demonstrate that particular entry which is difficult to read? Is that why you put the photos there?---Yes.
PN2197
So that is what you were intending to give evidence about, that particular notation you have just read to the Commission?---Correct.
PN2198
Thank you. Look, just one final thing, in terms of the induction system and the records that a sub-contractor employee is required to fill in before they commence work, are you familiar with that induction system?---Yes.
PN2199
Could I show you this document. I will show you a document that's headed "Induction attendance record". Ms Gooley has already anticipated that the document that I have shown the witness is actually a two page document as it says down the bottom. It has been photocopied without realising that there is a question here on the back. But in terms of the - you've actually got one. Perhaps if Ms Gooley assists as per usual, perhaps if I could show the witness that document in it's complete form and I will withdraw the tender of the other one.
PN2200
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2201
MR KIMBER: If you could hand that back Mr Drummond. You have now seen the two sided document, is that a document you're familiar with?---Yes.
PN2202
Is that the induction attendance record that is utilised at the site where you work?
---Yes.
PN2203
Do you know from your own knowledge whether a document in the same form was used at the other sites, the Dockland sites that have been the subject of these proceedings?---Yes.
I tender that induction attendance record, it's a two paged document, your Honour, double sided.
EXHIBIT #BLL7 INDUCTION RECORD
PN2205
MR KIMBER: What is the level of the knowledge, if any, you have of the blue glue system itself, is it something you have been involved with?---Yes.
**** LOU RANZOLIN XN MR KIMBER
PN2206
What has been the level of your involvement with the introduction of that system at the Children's Hospital site?---Just the site set up of the turn stiles, the whole site set up and showing the safety committee and going through the process of consulting with the people on site that I need to consult with.
PN2207
How long have you been involved in that consultation process?---Since the start. If you're after a date I would have to refer to my diary notes.
PN2208
In global terms what would you say, yesterday, a month?---Going back three months, at least three months.
PN2209
Insofar as that consultation process has taken place with your direct involvement can you indicate to His Honour which unions that has extended to? Which unions have been involved, if any, in the consultation process that you have been involved in?---I haven't been involved.
PN2210
With the unions?---No.
PN2211
Who have you been consulting with then?---The site safety committee and the site personnel.
PN2212
In terms of the site safety committee, who's on that committee?---Representation from trades working on site.
PN2213
That includes the trades represented by the contractors you referred to this morning?---Correct.
PN2214
Nothing further.
PN2215
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Green, did you have anything for the witness?
PN2216
MR GREEN: No, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Gooley.
<CROSS-EXAMINATION BY MS GOOLEY [10.28AM]
PN2218
MS GOOLEY: Can I just take you to the induction attendance record. This is an induction record for the employees of the sub-contractors?---This is a site induction record, correct.
**** LOU RANZOLIN XXN MS GOOLEY
PN2219
So everybody who works on the site has to complete one of these forms?
---Correct.
PN2220
THE SENIOR DEPUTY PRESIDENT: Direct employees and sub-contractor employees?---Correct.
PN2221
MS GOOLEY: As I understand it the material that is provided on the induction attendance record is the information - sorry, I should go back. Do you have one of the PDAs that enable you to read the cards that operate with the blue glue system?---I do.
PN2222
Have you ever used your PD to access information that is accessible via the card?
---Only my own.
PN2223
You have been shown what information would come up on your PDA, your swipe card?---I've seen my information.
PN2224
Without actually telling us who your next of kin is and stuff, tell us what information comes up on your PDA when you swiped your card?---It came up with my name, I remember my name, it came up with next of kin and the last swipe that I did, the last transaction - I call it transaction.
PN2225
Does it simply tell you that you had a transaction or does it tell you the time and date of the transaction?---I only record the time. I can only record the time.
PN2226
Do you have any familiarity with the data base that has been created to link with the card?---No.
PN2227
So you don't know what information is put into that data base?---Sorry, repeat the question.
PN2228
You know that there is a data base that has been created of the induction records?
---Yes.
PN2229
You know that that data base is accessible via the card?---Yes.
PN2230
All the information that is provided on this induction attendance record is included in that data base, isn't it?---Correct.
**** LOU RANZOLIN XXN MS GOOLEY
PN2231
So at the moment you are suggesting that your access to that information via your PDA is restricted to your name, your next of kin
and the last time you swiped on?
---There is - on the PDA there is a first aid and an EVAC section as well, there's four sections to it.
PN2232
If you had had additional information it would have come up?---Sorry?
PN2233
If you had had relevant - what is referred to here as the optional information medical condition, that would have come up on the PDA?---If I called it up in an emergency.
PN2234
What about the information about certificates?---I don't recall that being on the PDA.
PN2235
Is it information you can call up?---Not sure.
PN2236
You are at the Royal Children's Hospital and this is the site that has been set up with blue glue in mind, isn't it?---Correct.
PN2237
How many turnstiles are there at the Royal Children's Hospital?---Four.
PN2238
Where is gate one?---Flemington Road.
PN2239
What is gate one for?---Vehicle access.
PN2240
Prior to 5 August was it usual for gate one to be open during working hours?
---Sorry repeat the question.
PN2241
Before 5 August was it usual for gate one to be open during working hours?
---At times.
PN2242
Where is gate two?---On Flemington Road.
PN2243
It's on the same. Is it usual for gate two to be open during working hours?---Yes.
PN2244
MR KIMBER: Was that question 5 August as well?
PN2245
MS GOOLEY: Sorry, yes prior to 5 August?---Yes.
**** LOU RANZOLIN XXN MS GOOLEY
PN2246
Were workers able to walk in and out of gate two before 5 August?---In induction it is never said to use gate two as a pedestrian, it's always used as a vehicle.
PN2247
I accept there might be best practice, but were workers able to walk in through gate two before 5 August?---They were able.
PN2248
You were there on 5 August?---Yes.
PN2249
That was the day that the blue glue system was going live at the Royal Children's Hospital?---Correct, yes.
PN2250
Let's just take you back to the Friday before that date. On that day did you say to any of the workers present on the site that if they don't have a card by Tuesday you don't care if they sit out the front all day?---Repeat the question?
PN2251
On the Friday before 5 August which I think is before 1 August, did you say to workers on that day that if you don't have a card by Tuesday we don't care if you sit out the front all day?---I don't recall that.
PN2252
Do you recall that statement being said?---No.
PN2253
I will remind you that you are under oath and I will repat the question. Think about it for a moment. Did you say to a worker or a number of workers on the Friday that if you don't have a card by Tuesday we don't care if you sit out the front all day?---I don’t recall that.
PN2254
Do you recall it being said by anybody else to any of the workers in your hearing?---I don't recall that.
PN2255
You don't deny you said it, you just don't recall saying it?
PN2256
MR KIMBER: With respect, he has answered the question, he can either deny it or not recall it. He has twice said he doesn't recall it. A double barrelled question like that is not helpful with respect.
PN2257
THE SENIOR DEPUTY PRESIDENT: Yes. The answer is he doesn't recall.
PN2258
MS GOOLEY: You don't remember saying it?---I don’t recall saying it, I don't remember saying it.
**** LOU RANZOLIN XXN MS GOOLEY
PN2259
On 5 August the workers attended for work at the Royal Children's Hospital? Do you have no independent recollection of this day?---Sorry, repeat the question?
PN2260
Do you have any independent recollection of 5 August?---I do.
PN2261
Thank you, well then you probably don't need to refer to your statement to answer my questions. You attended the site on that day?---Correct.
PN2262
What time did you get there?---Approximately 3.50 a.m.
PN2263
That's well before the start of work isn't it?---Correct.
PN2264
For the other workers, it might have been your normal working time, but it's well before the start of work for other workers isn't it?---It was early.
PN2265
The normal working time commences at seven?---Workers start at seven.
PN2266
They arrive and they can come in through a variety of gates, that's right isn't it?
---Two gates.
PN2267
Two gates and four turnstiles?---There's a north entry and a south entry.
PN2268
Were the other two turnstiles - there's two turnstiles at the north entry and two turnstiles at the other entry?---Correct.
PN2269
I didn't realise that. Where is gate one in relation to the turnstiles?---Gate one's on Flemington Road, turnstiles are outside the induction room.
PN2270
Where is the induction room?---Inside the hoarding off Flemington Road.
PN2271
Is it near gate one?---No.
PN2272
I don't have to go through the induction room, do I, if I've already been inducted?
---No.
PN2273
I can actually come onto the site anywhere I can come onto the site once I've been inducted, can't I?---Through the north and south entry.
PN2274
Or gate one and gate two if they're open?---No, through the north and south entry.
**** LOU RANZOLIN XXN MS GOOLEY
PN2275
Are you telling me I can't come in through gate one and gate two?---The access to site is by north and south entry. Vehicle access is gate - - -
PN2276
You didn't answer the question. Can I come onto site through gate one or gate two?
PN2277
MR KIMBER: Might I object only on this basis that it may help if there is a time put on this question. Ms Gooley quite properly put a time frame on those earlier questions, I think it's appropriate, I apprehend there may well be a different position depending on when you're talking about.
PN2278
THE SENIOR DEPUTY PRESIDENT: Yes, I think that might be appropriate Ms Gooley.
PN2279
MS GOOLEY: Let's go back to prior to the 5th - before blue glue went live on 5 August, because that's when blue glue went live at Royal Children's on 5 August?---Correct.
PN2280
Let's talk about the time before that and I'm coming to work in the morning and I'm due to commence work at 7 o'clock. I could walk through gate one or gate two, couldn't I?---You could walk through gate one or gate two.
PN2281
On 5 August if I was coming to work in the normal way I come to work, could I have gone through gate one or gate two?---On which date, sorry?
PN2282
5 August?---No, through the north or south gate.
PN2283
I couldn't have come through gate one or gate two. Why not?---Because the - actually I need to make a correction. Prior to 5 August the guard had been instructed to keep the gates shut because all workers had to enter via north and south entry.
PN2284
Before 5 August?---Yes, much prior to 5 August, so I just want to correct what I said before.
PN2285
Are you sure?---Yes.
**** LOU RANZOLIN XXN MS GOOLEY
PN2286
I put it to you that prior to 5 August workers could and did walk through gates one and two when they came to work?---Not to my knowledge.
PN2287
THE SENIOR DEPUTY PRESIDENT: When do you say the security guard arrangement through the turnstiles commenced, with the turnstiles not being acting but free flowing?---The turnstiles were free spinning.
PN2288
Yes, and when did that commence?---Prior - it was piror to the 5th, if you want a date I just have to refer to my diary. They have been free spinning, if I was to give you roughly probably a month prior.
PN2289
Thank you?---If you want an accurate date I will have to refer to my diary.
PN2290
You say no employee was able to access a site through gates one and two over that month?---The path to the lunchroom is via north and south entry. If you go through gate one you actually walk in on a hard hat site area, that's why it's not encouraged to use gate one or two because you need to have all y our hard hat and safety gear on, so it's the safety path that leads to the amenities, the shed.
PN2291
But did any employees access via gates 1 and 2 over that month preceding 5 August?---Not to my knowledge, not to my knowledge.
PN2292
Yes Ms Gooley.
PN2293
MS GOOLEY: On 5 August you locked gates one and two prior to 7 o'clock in the morning, didn't you?---They hadn't been opened, no.
PN2294
But you locked them?---I'm not sure whether they were locked.
PN2295
Let me show you some photographs. Before I do that, were you present at gate one and gate two on that day?---No.
PN2296
Where were you located?---At the north entry.
PN2297
Where's the north entry?---It's away from Flemington Road in the park.
PN2298
So you didn't go anywhere near Flemington Road on that morning?---No.
PN2299
THE SENIOR DEPUTY PRESIDENT: When you say north and south entrance there, that's where the turnstiles are at the north and south entrance?---There's two turnstiles on the north entry and two on the south entry near the induction room, just inside the hoardings off Flemington Road.
**** LOU RANZOLIN XXN MS GOOLEY
PN2300
You say you were standing at the north gate of the site, was that entrance open?
---Yes.
PN2301
I put it to you that you were standing at that point telling all people that they had to go around to the front of the site to come in?---Incorrect, I deny that.
PN2302
You say in your witness statement that there were people at the workplace prior to the commencement of work?---Please repeat that.
PN2303
You say in your witness statement - sorry, I should repeat it, union officials at the site before the commencement of work?---Correct.
PN2304
You say that those union officials were telling workers to go down to Flemington Road?---Correct.
PN2305
That was well before 7 o'clock wasn't it?---Correct.
PN2306
You didn't attend at that meeting?---No.
PN2307
You have no idea what time that meeting occurred, do you?---No. Sorry, can I just take that back there. Item 41 there, the union officials were telling them to go down to Flemington Road for a meeting at 7 am.
PN2308
Yes, I know, but you don't know what time the meeting happened do you? You don't know what time the meeting occurred?---I did not see the meeting take place.
PN2309
When the union was telling the workers to attend a meeting they were doing so before the workers' starting time?---Yes.
PN2310
I have no further questions.
PN2311
THE SENIOR DEPUTY PRESIDENT: Ms Walters?
PN2312
MS WALTERS: Your Honour, nothing further.
THE SENIOR DEPUTY PRESIDENT: Anything arising Mr Kimber?
<RE-EXAMINATION BY MR KIMBER [10.48AM]
PN2314
MR KIMBER: Just one thing your Honour. Mr Ranzolin, in answer to Ms Gooley you made reference to or you gave a correction to your
evidence about a direction to security about entry via gates one or two, and His Honour then asked you some questions about the free
spin of the turnstiles. Is there any connection between the direction to the security guards that you referred to and the introduction
of the turnstiles on a free spin basis, are those two things linked?
---No, the reason why we requested gate one to be shut was that we had some people walk in gate one while it was open, so the direction
went to the guard to keep that gate shut at all times.
**** LOU RANZOLIN RXN MR KIMBER
PN2315
What is the nature of that gate, is it a boom or is it a full sort of cyclone wire fence, what's the nature of the gate?---It's a steel framed gate with perforated sheet, quite a large gate.
PN2316
You agreed with Ms Gooley that prior to 5 August workers could walk onto the site through gates one or two, is that right?---Correct.
PN2317
Is entry via that gate one or gate two consistent with the directions given on induction?---No, they shouldn't go through gate one or two.
PN2318
What's the reason for that?---For safety, for vehicles, because it's used for vehicles only, it's for safety of the people not to be there so they don't get hit by vehicles.
PN2319
Yes, thank you, I have nothing further.
THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence,
Mr Ranzolin, you are excused from these proceedings. I wonder if you could give the induction record to my Associate. Thank you.
<THE WITNESS WITHDREW [10.50AM]
PN2321
MR KIMBER: Your Honour, might I call Robert McGregor. He's outside the court.
THE SENIOR DEPUTY PRESIDENT: Yes.
<ROBERT ANDREW MCGREGOR, RECALLED AND RESWORN [10.52AM]
<EXAMINATION-IN-CHIEF BY MR KIMBER
PN2323
MR KIMBER: Thank you, your Honour. Mr McGregor, give your full name and address to the Commission please?---Robert Andrew McGregor (address supplied).
PN2324
You have sworn an affidavit in these proceedings that has already been marked BLL2, do you have a copy of that affidavit with you?---Yes, I do.
PN2325
THE SENIOR DEPUTY PRESIDENT: I think we have a tagging issue again Mr Kimber.
PN2326
MR KIMBER: Ms Gooley raises an issue about the tagging, we can deal with it on its merit, your Honour, I'm not concerned at this moment in time?---Tags are just dates, I'm happy to take them off if you want.
PN2327
THE SENIOR DEPUTY PRESIDENT: I'm sorry, they're what?---They're just the dates so I could reference it.
PN2328
MR KIMBER: It's an index, sir.
PN2329
THE SENIOR DEPUTY PRESIDENT: It's an index, I wonder if it could be shown to Mr Kimber and if there is no objection to Ms Gooley.
PN2330
MR KIMBER: Apart from very impressive colour photos there doesn't seem to be anything remarkable about it.
PN2331
THE SENIOR DEPUTY PRESIDENT: Haven't you learned from your school days Mr McGregor.
PN2332
MR KIMBER: It might follow from my general direction to the witness to know the material that they have put on so they can find it if they need it. I've never seen such level of compliance.
PN2333
THE SENIOR DEPUTY PRESIDENT: Yes, very well, thank you for that. Give it back to the witness. Yes, Mr Kimber.
PN2334
MR KIMBER: Thank you, your Honour. Mr McGregor, with respect to the affidavit that has just been returned to you, are there any matters in there that you feel in need of correction?---There's a minor one in that second paragraph, that's probably more of a typo that says that I've been at the site since August 2009. It should probably read I've been at the site since December 2006.
**** ROBERT ANDREW MCGREGOR XN MR KIMBER
PN2335
In paragraph 2 where it says, "August 2009" it should say - - - ?---It should say "since December 2006." Then it should say, "the project is due for completion in August 2009."
PN2336
I think the only thing that is necessary is the change in the date, but you otherwise indicate to His Honour that the project is due
for completion December 2009?
---No, August 2009.
PN2337
August 2009.
PN2338
THE SENIOR DEPUTY PRESIDENT: It's really the addition of the words "since December 2006. The project is due for completion," and then resumes, "August 2009."?---The other section was then in an area that is between paragraphs 48 and 52, that talks about being - it's actually written over here, it talks about being on 16 July, it should actually read - there is a bit of a - I think the wrong page has been copied there.
PN2339
MR KIMBER: Firstly as to paragraph 48 where it says 16 July what is the correction?---I think it should say 17 July.
PN2340
Does that have a consequential impact upon one of your annexures to your affidavit?---Yes, it does.
PN2341
Which one is that?---Eight I believe.
PN2342
Is the reason that the extract for your diary, RM8 is correct, is because that is the entry for the 16th?---Yes, it is.
PN2343
You would seek to remove that and replace it with the diary entry for 17 July, is that right?---That's right.
PN2344
Your Honour, I would ask what is currently RM8 which is probably singlely unedifying in any event, but perhaps if that can be substituted
for the right entry for that day. I will show you that if I can, an extract from your diary. Can you indicate you identify that
to be an extract from your diary from 17 July?
---Correct.
I would seek to have that substituted as RM.
**** ROBERT ANDREW MCGREGOR XN MR KIMBER
EXHIBIT #BLL8 CURRENT DIARY ENTRY MARKED RM8
PN2346
MR KIMBER: I apologise, your Honour. I thought that the entry I was removing was only one page, it was in fact two and the edifying information was on the second page, so that needs to be withdrawn as well.
PN2347
THE SENIOR DEPUTY PRESIDENT: Yes, so it's the two pages currently marked RM8, they're withdrawn and replaced with the diary extract,
dated
17 July.
PN2348
MR KIMBER: Mr McGregor, can you indicate to His Honour that as at the date you swore your affidavit which is 5 August, what the level of uptake blue glue cards was at the ANZ project?---Sorry, you're asking about the amount of people that had been done across the ANZ project, who had had their cards issued?
PN2349
Yes?---There was approximately 550 cards that had been issued predominantly to staff consultants and so on, a very limited amount to employees on the site.
PN2350
THE SENIOR DEPUTY PRESIDENT: 550 were issued to whom?
---Consultants, contractors, Direct Lend Lease employees, staff, and a certain amount of employees on the site.
PN2351
But very few to employees of contractors?---I'd guess maybe 100.
PN2352
MR KIMBER: How many as at that date if there was approximately 100 employees how many were left that had not been issued with a
card at that time?
---On the ANZ probably another 400 and there's the other projects at the precinct as well.
PN2353
With respect to those other projects how many were left to issue?---One hundred.
PN2354
All up?---All up, so there would be another 500 I suppose that needed to be made.
PN2355
All together?---Yes.
PN2356
Since the 5th what's the level of uptake been amongst those employees?---I believe about 50-odd cards have been made.
PN2357
So there's still another 450 or so - and is that mainly employees of sub-contractors working on those project sites?---Yes, it is.
**** ROBERT ANDREW MCGREGOR XN MR KIMBER
PN2358
Nothing further your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Green, anything from you?
<CROSS-EXAMINATION BY MR GREEN [11.00AM]
PN2360
MR GREEN: Mr McGregor, if you go to RM8 substituted diary entry for 17 July 2008. Do you have that?---Yes.
PN2361
Your entry reads, "Arrived on site at six am. I was told by - ", what is the name there?---Peter Churcher.
PN2362
C-h-u-r-c-h-e-r?---Yes.
PN2363
That Tony Murphy had been on site at 5.10 am and left a business card to give to me with a message, to tell Rob McGregor that his worst nightmare had been here, he apparently left soon after.
PN2364
Did you follow that up with Mr Murphy at all?---No, I've known Tony Murphy for a considerable amount of time, I guess I didn't take it all that seriously.
**** ROBERT ANDREW MCGREGOR XXN MR GREEN
PN2365
But having got the business card did you make any attempt to contact him?---No.
THE SENIOR DEPUTY PRESIDENT: Ms Gooley.
<CROSS-EXAMINATION BY MS GOOLEY [11.01AM]
PN2367
MS GOOLEY: Thank you, your Honour. The blue glue card system hasn't got live at the ANZ as yet has it?---No.
PN2368
So the workers at the ANZ site just come onto site in the way they normally do?
---Over the last few days the system, the gates next to the turnstiles have been shut a people have access to site by going through
free spinning turnstiles.
PN2369
Prior to 5 August the gates were open, they just walked in and out?---Yes, they did.
PN2370
There are turnstiles at ANZ, are there?---Yes, there was.
PN2371
Are you familiar with the other sites down at the Docklands?---The Myer and the Montage sites?
PN2372
Yes?---I'm familiar with them, not as intimate as I am with the ANZ though.
PN2373
Blue glue is not live at those sites though is it?---No, it's not.
PN2374
The workers just enter the sites?---They're on the same dates as the ANZ.
PN2375
I'm sorry?---They're doing the same as the ANZ precinct.
PN2376
So they've locked their gates now and you have to go through - - - ?---And workers are accessing through free spinning turnstiles.
PN2377
Do you have a hand held PDA?---I don't, no.
PN2378
You don't?---There is one at - it's held by the security guard that I can access should I need it for an evacuation.
**** ROBERT ANDREW MCGREGOR XXN MS GOOLEY
PN2379
Are the security guards employees of Bovis Lend Lease?---No, they're employees of a company called Atmac who are engaged by Bovis Lend Lease.
PN2380
So the security guards hold the PDA which enables them to read the cards?---I guess they - the PDA lives in the security room, it's not used and hasn't been utilised for anything yet.
PN2381
You agree that they can use the PDA's to read the cards?---Yes.
PN2382
Have you ever seen the information that comes up on the PDA?---Have I?
PN2383
Yes?---Yes.
PN2384
What information comes up on the PDA?---What comes up on the PDA is their name, who they work for and a photograph of them and then there's a second box that you can go to, there's four modes, if you go to an evacuation mode all it does is bring up a list of names of people on site. You go to the first aid mode it will bring you up that person's - any health requirements that they're volunteered to giving and in - there's another mode on it where you can manually have somebody swipe on site without actually having their card if you need to have it that way.
PN2385
I don’t understand?---There's a manual on site section on that, so if somebody was to turn up to the evacuation area and didn't have their card with them they would report to whoever the warden is at the time and say I'm here but I don't have my card, you look their name up and you can manually off site them or on site them from that unit there.
PN2386
You are familiar with the induction form, aren't you?---I'm familiar with the one that we use at the ANZ.
PN2387
If the witness could be shown BLL7. Is that the one you used at the ANZ?
---Pretty much, there's a couple of minor changes on the back but the front looks pretty familiar.
PN2388
So you collect information on the certificates that somebody holds?---From the sheet?
**** ROBERT ANDREW MCGREGOR XXN MS GOOLEY
PN2389
Yes?---Yes, if a worker presents to site, you give them that form, the only ones we ask from them as are mandatory that they do have had some form of industry induction via red card and if they do have any certificates like a scaffolder, crane operator, rigger or anything else then we'll actually take a copy of those tickets.
PN2390
Are you familiar with the data that goes from the induction card to the data base, are you familiar with that process, this information is - - - ?---The stuff that lives on the data base, that blue group?
PN2391
Yes?---Yes, I am.
PN2392
Can you access the data base?---I can. Sorry, I can access the data base for the people that are relevant to my site, I don't have any access to the people from other sites.
PN2393
That would be all the people on the site wouldn’t it?---On my site?
PN2394
Yes, on your site, on the ANZ site?---Yes.
PN2395
Does that data base include the information about the certificates?---At present no.
PN2396
Is it intended to?---Yes, it would be intended that we would be able to keep those certificates on the data base.
PN2397
Once that is on the data base that would be able to be accessed by the PDA?---I can't answer that, I'm not sure.
PN2398
On 5 August workers at the ANZ site attended for work as normal?---Can I just check my notes? I'm fairly sure that's right, but.
PN2399
That's the day that it went live at the Royal Children's Hospital, the Tuesday?
---Yes, can I check my diary notes?
PN2400
Yes?---Yes, they did.
**** ROBERT ANDREW MCGREGOR XXN MS GOOLEY
PN2401
They attended for work as usual. When was it intended that this system go live at the ANZ?---We've still got some issues to sort out, but as soon as we've got more people that have had their cards made we will go live on it as soon as we're ready, we're planning at the moment to be doing that next week some time.
PN2402
Your Honour, I just want to draw you attention we've been told that the other room can't hear us so there must be a technological problem.
PN2403
THE SENIOR DEPUTY PRESIDENT: I see. That will be attended to.
PN2404
MS GOOLEY: Thank you, your Honour.
PN2405
At the ANZ have you directed workers to get a blue glue card?---I've directed our own employees to get them and we've spoken to our own contractors about getting our employees to get them.
PN2406
I have no further questions.
PN2407
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Walters.
PN2408
MS WALTERS: Your Honour, we were provided yesterday with a copy of what is a generic contract between Bovis Lend Lease and sub-contractors for both the ANZ and the Royal Children's Hospital site. My learned friend hasn't tendered that material as of yet and I do seek to take the witness to a couple of provisions in that. As a matter of course I am not sure whether or not to - - -
PN2409
MR KIMBER: I am happy to do that now. Those are my instructions.
PN2410
THE SENIOR DEPUTY PRESIDENT: What have we got there? It's a document with an index and appendix.
PN2411
MR KIMBER: The ANZ one your Honour is - your Honour has one that says "Bovis Lend Lease" and it says "sub-contract" and it says "ANZ offices", so that is the ANZ one.
PN2412
THE SENIOR DEPUTY PRESIDENT: Yes.
**** ROBERT ANDREW MCGREGOR XXN MS GOOLEY
PN2413
MR KIMBER: Separately from that your Honour has been given the Royal Children's Hospital one which is written down the bottom of the - the first page is an index and you can see the name down the bottom, Royal Children's Hospital.
PN2414
THE SENIOR DEPUTY PRESIDENT: That is a standard contract between BLL and the relevant sub-contractors.
MR KIMBER: The Royal Children's Hospital, that's the formal agreement that's used on that site, and the ANZ one that has been separately provided is the one that is utilised at the other three sites.
EXHIBIT #BLL9 ROYAL CHILDREN'S HOSPITAL CONTRACT
EXHIBIT #BLL10 ANZ CONTRACT
PN2416
MR KIMBER: If the Commission pleases.
PN2417
MS WALTERS: If I could hand it to the witness, he might want to inspect it. Rather than giving the witness the whole document that is BLL9, it is the schedule of industrial requirements.
PN2418
THE SENIOR DEPUTY PRESIDENT: Where is that found within the document?
PN2419
MS WALTERS: It starts at page 53 your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes.
<CROSS-EXAMINATION BY MS WALTERS [11.10AM]
PN2421
MS WALTERS: If I can just leave that with the witness for a minute. Mr McGregor, you are the general foreman for the ANZ project,
that's correct?
---That's correct.
PN2422
Can you explain to the Commission where you sit in the pecking order as such of Bovis Management?---On the site, there's a - - -
PN2423
In Victoria?---In Victoria. I'm the general foreman on my project. I have a boss on my site who is the construction manager. He then reports to the operations manager within our business and most of our sites have a construction manager and a general foreman. So I'm the lead foreman on the site and the construction manager is the lead guy for contract matters and so on.
**** ROBERT ANDREW MCGREGOR XXN MS WALTERS
PN2424
So your immediate supervisor is the construction manager?---Yes, it is.
PN2425
Who is that at the ANZ project?---Charles Keywall.
PN2426
Then he in fact reports to the operations manager?---Yes.
PN2427
Who is the operations manager?---Andrew Askic currently.
PN2428
First of all if I can take you to paragraph 110 of your statement, page 10?---Yes.
PN2429
Paragraph 110 you deal with a number of conversations you have with individuals from different sub-contractors engaged on the ANZ site?---Yes.
PN2430
You also say on that site Caylee Constructions is the major employer of workers on that site, is that right?---He's the structure contractor, yes, it's the major one.
PN2431
Guy Caylee is the go-to guy at Caylee Constructions, is that correct?---Yes.
PN2432
Have you had any discussions with Guy Caylee in the same format as those conversations you have outlined in paragraph 110 with the
other sub-contractors?
---On this one here, no I didn't have the conversations with Guy Caylee there. There was a few sub-contractors that were across
a lot of our projects and I believe that Steve Broadhead may have spoken to Guy Caylee about the same matter.
PN2433
So you didn't ask Guy Caylee whether he had given the direction to his workers to obtain a security pass?---Not on this morning, no.
PN2434
Have you had a discussion with Guy Caylee to ensure that he gives the direction to his workers to obtain the security pass on any other morning?---I've been involved in discussions with Guy Caylee about getting his workers to get their passes made.
PN2435
Have you directed Guy Caylee to direct his workers to obtain a security pass?
---Yes.
PN2436
Mr McGregor, you are familiar with the Victorian Building Industry Disputes Panel, is that correct?---I'm sorry, I didn't hear that properly.
**** ROBERT ANDREW MCGREGOR XXN MS WALTERS
PN2437
You are familiar with the Victorian Building Industry Disputes Panel, is that correct?---I knew of it, I haven't had much to do with it for a long, long time.
PN2438
Mr McGregor, if I could take you to the provisions that I have provided to you, BLL9, page 53, 54 and 55?---Yes.
PN2439
Are you familiar with those terms, those provisions?---I know of the contract, I don't deal with the contract with the sub-contractors, that's done by Joel Keeble and the contractors managers on our project. I know of them in broad terms.
PN2440
Mr McGregor, you would be aware that on Thursday last week the CFMEU notified a dispute with the Victorian Building Industry disputes panel in relation to the blue glue system, is that correct?---I know of it but it's only because it's been spoken about in places where I've been, I haven't been told of anything official from it.
PN2441
You've had no discussions with any of the sub-contractors about that notification and subsequent recommendation?---From the disputes panel, no.
PN2442
If I can take you to clause 5.2 Mr McGregor. If you could just have a read of that?---I've read that.
PN2443
Mr McGregor, you are familiar with the terms of the 2005/2008 collective agreement to which a large majority of your sub-contractors engaged in the ANZ project have with the CFMEU?---I know of the agreement yes.
PN2444
You are familiar with the terms and the principles contained within that agreement, is that correct?---I've got a good, broad knowledge of it, yes.
PN2445
You know that there is a disputes resolution procedure in that agreement?---Yes, I do.
PN2446
Do you know that that dispute resolution procedure contains a reference to the Victorian Industry disputes panel if a dispute can't be resolved through negotiations between the employer and CFMEU, is that correct?---I'm aware that those words are there, yes.
PN2447
You'd be aware that Mr Berriman is the chair of that panel?---No, I'm not but - I'm not aware that Mr Berriman is the chairman of that panel, I don't deal with industrial relations per se on the site, I deal with the site issues. Anything that's done overall is an industrial relations issue within our site, so I take it to our industrial relations manager.
**** ROBERT ANDREW MCGREGOR XXN MS WALTERS
PN2448
Who is that?---Steven Broadhead.
PN2449
If I can just take you back on that point to the discussions, I think your evidence is that you have been present where discussions have been had with Guy Caylee in relation to giving a direction to his workers to obtain security guards, is that correct?---Yes.
PN2450
Who else was present in those discussions?---Joel Keeble I know of for a fact, I mean I think we actually went to print to Caylee to give them a time slot to come in and get their cards made, so I don't remember who else was in that session.
PN2451
You only remember that Joel Keeble was present?---Yes.
PN2452
Your industrial relations manager Mr Broadhead, he wasn't present?---I don't remember.
PN2453
You understand in your experience - how long is it you've been in the industry, Mr McGregor?---Nearly 30 years.
PN2454
So you've got a good understanding of industrial relations though on site?---I think so.
PN2455
You would understand that in relation to the collective agreement I have referred to, that if a contractor had a dispute with the CFMEU and the matter was referred to the disputes panel, that the disputes panel is able to make a finding in relation to that dispute, a determination, is that correct?---No, the workings of the disputes board I'm not fully aware of how it all works, again in the industrial relations issues I have I take it to our industrial relations manager. I don't deal with industrial relations issues to that level on the site.
PN2456
So for example, Mr McGregor, you're not aware or you don't recall the dispute with the CFMEU in 2006 over the application of the appropriate site allowance for the ANZ project?---I'm aware that something happened around site allowances a couple of years ago, I didn't deal with it, it was done by our industrial relations manager.
PN2457
You didn't provide a witness statement in the appeal proceedings in the Commission, Mr McGregor?
**** ROBERT ANDREW MCGREGOR XXN MS WALTERS
PN2458
MR KIMBER: Your Honour, I don't know where this is going but it doesn't seem to be a fertile direction. We are now talking about a dispute in 2006 about site allowances.
PN2459
THE SENIOR DEPUTY PRESIDENT: Yes, where are we going with this Ms Walter.
PN2460
MS WALTERS: Your Honour, it seems to be that Mr McGregor is saying that he has limited understanding of industrial relations and the effects of a decision of the disputes panel, and that seems unlikely given the experience Mr McGregor has in the industry. I am exploring that matter. If I could just stop there, your Honour, I understand that the other room still can't hear the evidence of Mr McGregor.
PN2461
THE SENIOR DEPUTY PRESIDENT: I understood they couldn't hear me which wasn't depriving them of a lot. The witness as well, yes, if you could keep your voice up that might deal with the issue. How does the giving of evidence or otherwise in another proceeding establish the extent of Mr McGregor's industrial relations expertise? The evidence will go simply to factual matters or as an expert witness on another matter.
PN2462
MS WALTERS: Your Honour, I think I will leave it there, it is a matter I can deal with in submissions.
PN2463
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2464
MS WALTERS: If your Honour will bear with me a moment. Nothing further your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you. Anything arising Mr Kimber?
<RE-EXAMINATION BY MR KIMBER [11.26AM]
PN2466
MR KIMBER: In relation to the question of security guards I think you indicated there was a PDA you said in the security guards'
shed I think did you refer to?
---Yes.
PN2467
Do you know whether that's the case on other sites or is that peculiar to your site?
---No, that's the same - the same PDA's available to be shared between the sites should one of the sites have an evacuation.
**** ROBERT ANDREW MCGREGOR RXN MR KIMBER
PN2468
I'm not sure how that - one PDA would be available to all sites - - - ?---Myer Montage and Mosaic projects don't all have their own PDA's. Should an evacuation occur at Myer Montage or ANZ they would grab that PDA and take it to the marshalling area. Apart from that it has very little use.
PN2469
Because it's all in the same precinct?---Yes, it is.
PN2470
Ms Gooley, and indeed Ms Walters, asked you about discussions with contractors about the issue of BG cards and you said you had spoken
to your contractors?
---Yes.
PN2471
Obviously you had given evidence about that at some length at paragraph 110 that Ms Walters referred to about those discussions. They were obviously discussions prior to on or before 5 August when you swore your affidavit. Have you had further discussions with the contractors since 5 August about that question of directing workers to get their cards?---Yes, I have.
PN2472
When was that?---Most days since then, particularly over the last two working days.
PN2473
Who have you spoken to, which contractors?---Can I refer to my diary?
PN2474
Yes?---Art Plastering, ExpoConti, AG Coombes, Maxim Electrics and Stow Electrics.
PN2475
You mentioned Mr Guy Caylee, the conversation you referred to in your evidence, when did that take place?---I'm not - sorry, the conversation with Guy Caylee, are you talking about the ones I've had since or are you talking about the one that I referred to I was actually in the question over here before.
PN2476
I'm sorry, you didn't put a time frame when it was that you spoke to Guy Caylee?
---Okay, I haven't spoken to Guy Caylee again specifically about getting cards made since last Friday.
PN2477
So was it last Friday that you spoke to him?---No, the time before that we had spoken to Guy Caylee was with Joel Keeble and I had actually written a correspondence to all of the sub-contractors scheduling them in some times when they could come in and get their induction cards made so they could take them away from there. We spoke to Guy Caylee at that time as well as sending them the notification and pretty limited success.
**** ROBERT ANDREW MCGREGOR RXN MR KIMBER
PN2478
In relation to the contractors you have referred to just a moment ago by reference to your diary, are they contractors that you described as common to all sites or are they contractors that only work on your site?---No, most of those are ones that just work on my site.
PN2479
You referred to Guy Caylee as one of the contractors that was common to all sites, are you able to indicate to His Honour what are the principal or the main contractors that are common to all sites, all the four sites?---Other contractors other than Caylee?
PN2480
Yes, other than Guy Caylee, who else is common? If you don't know just say so?
---No, I don't know.
PN2481
When you spoke to Guy Caylee that was a few weeks ago was it or more?---Yes, two weeks ago, yes.
PN2482
Did you have any further conversation with him about the response of his workers to the suggestion they should attend at the designated times to get their cards, did he give you any feedback about that?---That the guys weren't getting cards because they were in a position where they had been told not to get their cards by the unions and the guys didn’t want to get their cards.
PN2483
MS GOOLEY: I just want to, without having to get up all the time, maintain my objection to - - -
PN2484
THE SENIOR DEPUTY PRESIDENT: To hearsay, yes.
PN2485
MS GOOLEY: - - - that hearsay answer that was given.
PN2486
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2487
MR KIMBER: Insofar as you indicated that was the feedback, how did that feedback come to your ears, was it directly or indirectly. How did you know that the workers were not taking up the invitation to get their cards for that stated reason?---Guy Caylee said it in a room that I was in.
PN2488
So the contractors that you listed a moment ago from our diary, as I understand your evidence they're the contractors that you say you've had direct dealings with about the question of their workers getting BG cards?---Yes.
**** ROBERT ANDREW MCGREGOR RXN MR KIMBER
PN2489
When do you say those conversations - did they take place all at one time together or was it - - - ?---I did a ring around yesterday afternoon.
PN2490
A ring around yesterday afternoon?---To try and encourage people to get their cards and see how they were going with getting them made.
PN2491
Did the contractors give you any reaction to the suggestion that that should happen?---Some sub-contractors said that they had had a fairly good uptake. I guess there was a couple of notables that are fairly low and they're generally the contractors that have got more employees.
PN2492
Which ones are they?---They would be people like AG Coombes, Maxim Electrics, again I didn't ring Caylee but I know that his uptake is low and they would probably be the lowest uptake of their employees getting cards prepared.
PN2493
I noted that when you gave that last answer about what you were told you referred to a diary entry for yesterday's date, is that right?---That's correct.
PN2494
What does that diary entry actually say?---"Attempted to get sub-contractors to get swipe cards produced." There's a list of them down there now. It's got ExpoConti at 90 to 95 per cent, Art Plastering at another percentage, AG Coombs is about 20 per cent. Their directors have told their employees but their employees are not getting them. A note about CDC being fairly low. "Maxim apparently have got four out of 70. Rob Many advises us that he has told all of his employees to get them. Our own people are at 100 per cent." A small mob called Direct Skills 40 per cent and Stowe Electrics are also apparently at 100 per cent.
PN2495
Does that update the level of conversation you have had about the issue with the sub-contractors, that entry for yesterday?---That's as much as I've done, yes.
PN2496
Again that diary, what's your practice with respect to the keeping of that, when do you fill it in?---Generally either that night or first thing the next morning before I start work.
PN2497
How long has that been your routine?---A long time.
PN2498
Months, years?---Yes, years.
PN2499
That is all the questions I have in re-examination at this moment in time but I would seek to foreshadow and reserve my right to recall Mr McGregor once we have instructions about what is happening on his site. At the moment I still haven't had an opportunity to be instructed about that matter.
**** ROBERT ANDREW MCGREGOR RXN MR KIMBER
PN2500
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2501
MR KIMBER: Indeed for that reason and others might I ask for a brief adjournment, I note it's 11.30, before I call Mr Plumber.
PN2502
THE SENIOR DEPUTY PRESIDENT: Is there any objection to that? Very well, what I will do Mr McGregor is complete your evidence at
this stage. I won't excuse you at this stage should it become necessary for you to be recalled under your previous oath. I would
ask you to provide my Associate at the break the
17 July diary entries which were substituted in your affidavit and also the induction records. I note my desk diary has Mae West
saying, "I always say keep a diary and someday it will keep you", I suspect Ms West's activities would attract the public
more than your own, so don't take too much heart from that. Very well, you are excused for the moment, Mr McGregor, and you may
need to be recalled at some point?---Yes.
I will adjourn for 10 minutes.
<THE WITNESS WITHDREW [11.35AM]
<SHORT ADJOURNMENT [11.35AM]
<RESUMED [11.55AM]
PN2504
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Kimber.
PN2505
MR KIMBER: Your Honour, I have had an opportunity to get some preliminary instructions about what is happening on the Victoria Harbour precinct site and I understand that there is a representative of the company who will be attending the Commission shortly for me to speak to about what has happened. What I would propose, subject to the Commission's own view, that we deal with Mr Plumber and if that be brief then perhaps Mr Cruze, and then if we can adjourn that will give me an opportunity to get instructions and if there be need for further evidence, which I think there will be, perhaps that can be called immediately following lunch, if that is acceptable.
PN2506
THE SENIOR DEPUTY PRESIDENT: I think we will just proceed with Mr Plumber and then Mr Cruze and then we will deal with the process at that time.
MR KIMBER: Yes, I call Mark Cameron Plumber.
<MARK CAMERON PLUMBER, SWORN [11.57AM]
<EXAMINATION-IN-CHIEF BY MR KIMBER
PN2508
THE SENIOR DEPUTY PRESIDENT: Please take a seat Mr Plumber. Yes, Ms Gooley.
PN2509
MS GOOLEY: Your Honour, before my friend leads this witness in relation to the evidence he is going to give, apart from the objections we have made previously to witness statements in relation to the hearsay that is contained in them and we presume that the same ruling that you gave on previous occasions will apply to those elements in this witness statement that also go to hearsay. It is unlike me to stand here and agree with Mr Green but I actually don't see the relevance of this witness statement at all. The matters in dispute between you are whether industrial action has been occurring at the Projects. As interesting as it may be to find out what has been happening in Queensland, I don't see the relevance of any of the material contained in this statement to your determination as to whether industrial action is in fact occurring down here or what is occurring is industrial action. So I would say that the entire evidence of Mr Plumber is irrelevant and therefore should not be admitted.
PN2510
THE SENIOR DEPUTY PRESIDENT: Very well, can I say in respect to the hearsay point, unless someone wishes to argue the point, I would make the same ruling. Did you wish to be heard on the relevance point Ms Walters.
PN2511
MS WALTERS: No, save to formally say that the CFMEU supports the submissions made by Ms Gooley.
PN2512
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Kimber.
**** MARK CAMERON PLUMBER XN MR KIMBER
PN2513
MR KIMBER: Your Honour, it's been apparent since these proceedings started that this is not simply a case that rests on industrial action that's occurring, although it may well be that there is some fresh evidence that will come to bear about what is happening today. But in essence the case has always been based upon the probability of future industrial action, and this statement goes directly to, we say, to clear evidence by the CFMEU in particular with a view to escalating this dispute by seeking to cause further industrial trouble at a site where there was formerly no industrial trouble. It bears directly on the probability that there is going to be further trouble as the company proceeds with the implementation of this system. Mr Plumber's evidence actually indicates that in recent days, seemingly at the instigation of the Victorian branch of the CFMEU has actually now faced an adverse change in their on-site position. We say it bears directly upon the question of probability and future industrial action on the subject sites, and it is otherwise relevant in terms of the arguments the unions advanced about their fears and suspicions about the implications of this system. Your Honour has heard evidence about that, it goes directly to the baseless nature of those concerns as well.
PN2514
THE SENIOR DEPUTY PRESIDENT: You attempt to have the same ruling in respect to hearsay?
PN2515
MR KIMBER: Yes, your Honour.
PN2516
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Green, did you have anything on relevance?
PN2517
MR GREEN: Without shrinking from my earlier submissions, your Honour, I adopt those that Mr Kimber has just advanced.
PN2518
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Gooley, did you have anything in reply in relation to - - -
PN2519
MS GOOLEY: No, your Honour.
PN2520
THE SENIOR DEPUTY PRESIDENT: I am satisfied that there is relevance on the subject of the probability issue so I will admit the statement and I will apply the same ruling in respect to hearsay as we have applied it to other statements.
**** MARK CAMERON PLUMBER XN MR KIMBER
PN2521
MR KIMBER: Thank you, your Honour. Mr Plumber, could you give your full name and address to the Commission please?---Mark Cameron Plumber, Level 18, 240 Queen Street, Brisbane, Queensland.
PN2522
For the purpose of these proceedings here today you prepared a statement that is dated 12 August?---Yes.
PN2523
Is that a three page statement and it also has with it three annexures?---Yes.
PN2524
Do you say that the contents of your statement are true and correct to the best of your knowledge and belief?---I do.
I tender this statement of Mark Cameron Plumber, dated 12 August 2008.
EXHIBIT #BLL11 STATEMENT OF MARK PLUMBER, DATED 12/08/2008
PN2526
Mr Plumber, can I ask you about - in your statement you make reference to some minimal level of - in paragraph 16, minimal disruption that you refer to in annexure 2 to your statement; do you see that?---Yes.
PN2527
That problem that you advert to in paragraph 16, was that associated with the insurance data issue that you refer to in paragraph
10 or was that a separate issue?
---Same issue.
PN2528
In paragraph 10 you say this:
PN2529
There were some technical teething issues with switching on the system, times when the gates had to be opened to access site. There was also a day when the insurance data relating to a sub-contractor had not been updated by the site team and the system prevented access to the site as it thought these workers' insurance had expired.
PN2530
Do you see that?---Yes.
PN2531
So this issue was resolved that morning by updating the data with the latest information.
**** MARK CAMERON PLUMBER XN MR KIMBER
PN2532
Do you see that?---Yes.
PN2533
The question of insurance, is it the insurance held by the workers themselves or by the sub-contractors that employ them?---In that case it's by the employer.
PN2534
The employer, the sub-contractor?---Yes.
PN2535
When you say the problem was sorted out, how was the question of insurance or the currency of the insurance of sub-contractors seeking to enter the site at Robina, how was that attended to, how do you know whether or not a sub-contractor is holding the necessary insurance for it's workers?---Now on the Robina site or previously?
PN2536
Previously how was it done? I mean previously before the BG system?
---Previously before the BG system it was generally manually done or manually recorded by administration staff and there was a link
in our payment system which flagged up in its payment system when insurance were expired.
PN2537
When you say flagged up was does that mean?---So there was a note saying that the insurance - the payment was on hold until the latest insurance starter or certificates of currency were produced by the sub-contractor to verify that the guys had insurance.
PN2538
So that the workers were insured?---Yes. I mean the primary reason for doing this was to ensure at all stages while the guys were on site that they had the appropriate levels of insurance, BLL doesn't want to have anyone on site at any time that doesn't have the appropriate levels on insurance.
PN2539
Which refers to what, what sort of insurance?---Insurance, there's two levels of basic insurance for the workers which is workers compensation and public liability insurance are the two main forms of insurance.
PN2540
Is this a problem that occurs once in a blue moon or is it a problem that you're confronted - - - ?---It's a regular problem that we confront quite regularly with the insurances only being for 12 months or a period of time and expiring, and making sure that we get current up to date data, it is quite an intensive process to actually keep it up to date prior to the blue glue system.
**** MARK CAMERON PLUMBER XN MR KIMBER
PN2541
MS WALTERS: Sorry to interrupt at that point. I am just instructed that the workers sitting in the other room still can't hear the evidence of the witness. I'm not sure, maybe it's the position of the microphone.
PN2542
VOICE FROM BODY OF COURT: The problem is technical, generally the voice goes up and down with the sound levels. I would say you have either got a wiring problem or a microphone problem, in all seriousness. It drops out every couple of seconds.
PN2543
THE SENIOR DEPUTY PRESIDENT: Mr Plumber, if you would keep your voice up, that's all we can do, have it checked out at the next adjournment.
PN2544
MR KIMBER: Just do your best Mr Plumber to keep your voice up. I think you have indicated that prior to the blue glue system's instruction it was done on a manual basis. When expiry dates of insurance were coming up was there a system of notification to the sub-contractor to that effect or not?---Prior to the system in place?
PN2545
Yes?---Yes, it is generally a letter or an email or a phone call to the sub-contractor saying their insurance is about to expire and we need your latest certificate of currency for the relevant insurance.
PN2546
Since the introduction of the blue glue system, you say there was a glitch with respect to this, what was the glitch that occurred and what has been done to overcome it?---The glitch in the system was - the blue glue system operates by including or inputting the data as to when it expires with the sub-contractor. It then automatically sends notices to the administrator of the blue glue system which is the person on site. I'm not exactly sure on the frequency of those notices, but I believe that it's about a month out, two weeks out, a week out and a day out, saying that the insurances are about to expire to the administration of the system. Then the administrator, which is a BLL staff member advises or rings, contacts the employer and says that you need to give us the new insurances. The system default that if all those gates are missed and the insurance expires and we don't have the current details it will prevent access for the workers going on site on the day that expires. The reason for that is so we can ensure that workers aren't put at risk if they're working on site without any insurance. Now the glitch that I referred to, the system had only recently been turned on, our operators had missed some of the notifications or weren't fully trained, up to speed with all that which is part of introducing a new system. They did actually have the insurance data on site I'm told and it was quite a quick process of saying we did have the insurance data, update the data into the system and the workers continued on working. But the system from my side of things did do what it was supposed to, preventing people that it thought did not have insurances on site.
**** MARK CAMERON PLUMBER XN MR KIMBER
PN2547
That has been attended to now? The flag's come up on the designated times?
---Yes, the action that we've taken from that has made the staff that operate the system aware of these flags and that they are
actively managed to make sure that the situation doesn't occur again.
PN2548
What happens when they see one flagged that says a particular sub-contractor's insurance runs out what are they to do?---They are now to contact the sub-contractor via themselves or the package managers and get that data and get it included and updated in the system but prior to expiring.
PN2549
In terms of the day on which the system operated to deny access, was there any disruption on site of an industrial nature as a consequence
of that happening?
---No, none at all. The guys were, I suppose, unsure why the system wasn't letting them in. They contacted our site management
who understood the problem and sorted the issue out and let them go on site on their way, so there was no industrial action or confrontation
taken.
PN2550
Have you had any discussions with the local union representatives about this question of the blue glue system in the context of insurance?---Look, a long running discussion we've had with the unions has been ensuring contractors have the appropriate insurances. More so particularly on this project because we've got 250 shops with individual shop fitters. Shop fitters have a record or a habit of not having appropriate insurances for all our employees and it has been a nightmare for previous projects, for both ourselves and the union to actually address and make sure those guys have got appropriate insurances. This system actually provides a fail safe mechanism of preventing people that don't have the insurances in place from working on our sites. So I see it as a joint benefit to both ourselves and the industry.
PN2551
Have the union reps that you deal with on site up there expressed any view to the contrary in this regard?---No.
PN2552
I just notice in paragraph 18 there is reference to an advertised meeting and you refer to MP2, I think that advertised meeting is in fact MP3, is it not, that's the last annexure?---Yes, it is.
PN2553
If that might be changed, your Honour, it's an obvious mistake in paragraph 18.
PN2554
THE SENIOR DEPUTY PRESIDENT: Yes.
**** MARK CAMERON PLUMBER XN MR KIMBER
PN2555
MR KIMBER: Nothing further your Honour.
PN2556
THE SENIOR DEPUTY PRESIDENT: Mr Green.
PN2557
MR GREEN: No questions your Honour.
THE SENIOR DEPUTY PRESIDENT: Ms Gooley?
<CROSS-EXAMINATION BY MS GOOLEY [12.11PM]
PN2559
MS GOOLEY: Thank you your Honour. Mr Plumber, do you have a PDA that enables you to read the cards?---Me personally?
PN2560
Yes?---No.
PN2561
Have you seen the information that is provided by blue glue via the PDA?---Yes, I have.
PN2562
You would agree, would you not, that the PDA will tell me the time that - if I get a workers' card during the day, it will tell me
the time that that person swiped in?
---I can't answer that question, I do not know the answer sorry.
PN2563
Mr Plumber, you put out a notice to the union which is MP2 where you categorically denied that this system provides details of working hours on site. Are you telling me you don't actually know whether it does or doesn't?---The reference is to the PDA system. The statement that we made in relation to the union that we were not monitoring time is accurate. We cannot tell whether the guy from the base system - only whether the guy is on site or off site.
PN2564
Can I take you to MP2?---Yes.
PN2565
Where it says:
PN2566
The system does not provide details of working hours on site.
PN2567
It does, doesn't it? The system does?---No, the system does not. It is programmed at the moment to not allow us to see the hour that the guy started or stopped, we only know whether he is on site or off site.
**** MARK CAMERON PLUMBER XXN MS GOOLEY
PN2568
No, I will ask you the question again. I didn't ask you what you could see or not see, I said the system does record that information, doesn't it? The time somebody swipes on and the time somebody swipes off?---When you say the system, the system is what I can see.
PN2569
No, the system is not what you can see.
PN2570
MR KIMBER: That would be argumentative, with respect, if she can confine herself to questions might be helpful.
PN2571
MS GOOLEY: I will explain the system to him so that he knows what I mean.
PN2572
THE SENIOR DEPUTY PRESIDENT: It might be worth establishing whether Mr Plumber has any knowledge of the system beyond as he is.
PN2573
MS GOOLEY: Blue glue is more than a PDA?---It's really not a PDA per se, it's a network of - it's a computer system and software.
PN2574
Yes, it's a computer system and software. When I take the swipe card and swipe it past a reader it records when that occurs, does it not? On the computer there is as record kept of when that occurs?---My understanding of the system, it cannot - I cannot find that information out as to when that guy started on site.
PN2575
So when you look at the PDA what does it tell you about the last time that somebody swiped on?
PN2576
MR KIMBER: I object to that, the witness has already said that he doesn't have one, so it makes it very difficult.
PN2577
MS GOOLEY: He says he has seen it.
PN2578
THE SENIOR DEPUTY PRESIDENT: He has seen information on it, he doesn't have one.
PN2579
MR KIMBER: I'm not trying to be pedantic about it, but the question seemed to rest on the premise that Mr Plumber had a PDA or I think he said he didn't.
**** MARK CAMERON PLUMBER XXN MS GOOLEY
PN2580
THE SENIOR DEPUTY PRESIDENT: I don't think it does. Yes Ms Gooley?
---Sorry, can you repeat the question?
PN2581
Yes.
PN2582
MS GOOLEY: On either - actually it doesn’t matter, either the PDA or the computer, which I understand there is a computer in the office and it contains the same information?---Yes.
PN2583
I can access it via the computer. So when I go to that computer and I enter your record for yesterday, what will it tell me about your departure from the site?---It will not tell me whether I'm on site - it will only tell me whether I'm on site or off site at that present time. I do not have a record of what that guy did.
PN2584
Can I ask you this question. If I am doing an evacuation at five o'clock how do I know you're on site?---The system will list at live time, so at present time it will give me a list of all people that are currently logged on as saying they're on site. So I get a print off or a screen dump, whatever you want to call, of all people that are actually listed on the site as present that haven't logged out.
PN2585
I put it to you that within the computer system, so on the computer hard drive, is a record of the time they swiped the card?---I can't answer that question because I'm not the software guy and what I can see - and I can't see that information.
PN2586
If it doesn't tell me that information, Mr Plumber, how do I know that the information is not relating to the day before if it doesn't
record the date and time?
---It just records whether the guy is on site or off site, we don't care whether the guy - what time the guy started or stopped,
we just want to know whether he's on site or off site in the case of evacuation or close of business for the day.
PN2587
I put it to you Mr Plumber that it does record the time that people come on, and it does record the time that people go off?---I disagree.
PN2588
I have no further questions.
PN2589
THE SENIOR DEPUTY PRESIDENT: Ms Walters.
PN2590
MS WALTERS: No further questions your Honour.
PN2591
THE SENIOR DEPUTY PRESIDENT: Anything arising Mr Kimber?
**** MARK CAMERON PLUMBER XXN MS GOOLEY
PN2592
MR KIMBER: No your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence Mr Plumber, you are excused.
<THE WITNESS WITHDREW [12.17PM]
PN2594
THE SENIOR DEPUTY PRESIDENT: Is that all your evidence presently subject to your reservation Mr Kimber?
PN2595
MR KIMBER: There is one other document that it is probably appropriate that I tender now. It's a Worksafe document bearing upon the responsibility of principal contractors and other matters. I seek to tender that.
THE SENIOR DEPUTY PRESIDENT: Is there any objection from the other side?
EXHIBIT #BLL12 CONSTRUCTION REGULATIONS WORKING SAFELY IN THE CONSTRUCTION INDUSTRY, A PUBLICATION OF WORKSAFE VICTORIA
PN2597
MR KIMBER: If your Honour will excuse me for half a minute.
PN2598
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2599
MR KIMBER: Your Honour, could I indicate - it's a work in progress, it looks like substantially completed, but I noted especially with Mr Broadhead's affidavit the extracts from his diary were difficult to read and I have asked that to be typed up in a verbatim fashion. I haven't had an opportunity to check it nor to be able to mark up which ones they are, but I will endeavour to do that later if I might. Subject to the reservation I referred to, yes, that is the evidence for the applicant.
PN2600
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Green.
MR GREEN: May it please your Honour, I call Warren Cruze.
<WARREN CHARLES CRUZE, AFFIRMED [12.19PM]
PN2602
THE SENIOR DEPUTY PRESIDENT: Please take a seat, Mr Cruze. Please excuse me one minute. Mr Green, we haven't been provided with a statement.
PN2603
MR GREEN: No, your Honour, I have got two copies in court here, if I could hand those to your Honour's Associate.
PN2604
THE SENIOR DEPUTY PRESIDENT: Yes, I gather Ms Gooley is going to address them.
PN2605
MS GOOLEY: Yes, your Honour, it's the same point in relation to any hearsay in the witness statement, we anticipate that the same ruling will apply in relation to the hearsay in this statement.
PN2606
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Green, are you familiar with the ruling from your reading?
PN2607
MR GREEN: Just refresh my memory if you would.
PN2608
THE SENIOR DEPUTY PRESIDENT: The ruling was that the evidence will be admitted on the basis that any evidence as to conversations will be evidence as to the conversations and not the truth of what was said to have occurred in those conversations.
PN2609
MR GREEN: Yes, your Honour, can I also ask your Honour to bear this in mind that under section 110(1)(b) of the Act the Commission isn't of course bound by any rules of evidence and may inform itself in any way that it considers just. No doubt those matters informed your Honour's ruling.
PN2610
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Kimber did bring that to my attention.
PN2611
MR GREEN: Thank you, your Honour.
PN2612
THE SENIOR DEPUTY PRESIDENT: It will be a matter of weight on that basis.
MR GREEN: May it please the Commission.
<EXAMINATION-IN-CHIEF BY MR GREEN [12.22PM]
PN2614
MR GREEN: Would you tell His Honour your full name please?---Warren Charles Cruz.
**** WARREN CHARLES CRUZE XN MR GREEN
PN2615
What is your business address?---Level 2, 553 St Kilda Road, Melbourne.
PN2616
By occupation what are you Mr Cruze?---I am an ABCC inspector and also a team leader.
PN2617
For the purposes of the proceeding before His Honour have you prepared a statement with three attachments to it?---I have.
PN2618
Have you had an opportunity to read that statement?---Yes, I have.
PN2619
Are the contents of that statement true and correct in every respect?---Yes, that is.
PN2620
As to the two photographs which you have attached to your statement were you the maker of those photographs?---That is correct.
PN2621
Do those photographs square with the image that you saw with your own eyes at the time that you took the photographs?---Yes.
If your Honour please I tender the statement with the attachments.
EXHIBIT #ABCC1 WITNESS STATEMENT OF WARREN CHARLES CRUZE, INCLUDING ATTACHMENT, FLYER AND PHOTOGRAPHS
PN2623
MR GREEN: If your Honour pleases.
PN2624
THE SENIOR DEPUTY PRESIDENT: Mr Kimber, do you have anything you want to put to the witness?
PN2625
MR KIMBER: No, your Honour.
THE SENIOR DEPUTY PRESIDENT: Ms Gooley.
<CROSS-EXAMINATION BY MS GOOLEY [12.23PM]
PN2627
MS GOOLEY: Mr Cruze, is it your evidence that the people on four of four from the ETU were all present at the site on 5 August?---That's my belief.
PN2628
Your belief?---Yes.
PN2629
Can you categorically say those people were there?---From my experience in the industry and from working with the taskforce in the ABCC I recognised those guys that were actually on site at that time from times that I've actually had interactions with them and also reading ETU newsletter I saw those persons there.
**** WARREN CHARLES CRUZE XXN MS GOOLEY
PN2630
Can you tell me where you saw Mick Montebello?---Yes, at the rear of the site.
PN2631
Where did you see Ivan Bolter?---At the front of the site.
PN2632
And Wes Haynes?---At the front of the site.
PN2633
And Aaron Harris?---I believe at the front of the site.
PN2634
You believe at the front of the site. David Meare?---At the front of the site.
PN2635
Reno Lea?---At the front of the site.
PN2636
And Colin Williams?---At the front of the site.
PN2637
What did you see Mr Meare doing?---He was with a group of 40 or 50 other people.
PN2638
Did he do anything else?---Not that I saw.
PN2639
THE SENIOR DEPUTY PRESIDENT: I wonder if you could speak up Mr Cruze.
PN2640
MS GOOLEY: What about Mr Williams, what did you see him doing?---I saw him at the front of the site in the group.
PN2641
You didn’t see him doing anything else?---No.
PN2642
Was this your first dealing with this site Mr Cruze?---On this day?
PN2643
No generally at all?---No.
PN2644
No it isn't? You've dealt with this site before?---Correct.
PN2645
What have your previous dealings been about?
PN2646
MR GREEN: Your Honour, with respect that's too wide and shouldn’t be put.
PN2647
THE SENIOR DEPUTY PRESIDENT: Yes, perhaps you could focus in on the specific matters, Ms Gooley.
**** WARREN CHARLES CRUZE XXN MS GOOLEY
PN2648
MS GOOLEY: Thank you, your Honour. Have you attended the site to have any discussions with any representatives of Bovis Lend Lease
about blue glue?
---No.
PN2649
Have you attended this site to have any discussions with Bovis Lend Lease about any events that occurred on 23 June?---No.
PN2650
Have you had any discussions with any representatives of Bovis Lend Lease about any events on 11 July?---No.
PN2651
12 July?---No.
PN2652
Have you had any discussions with Bovis Lend Lease about any incidents on this site in between 23 June and 5 August?---On site, no.
PN2653
Off site?---Due to operational requirements I am not at liberty to tell you what I investigate.
PN2654
Have you had any discussions with Bovis Lend Lease about any matters between 23 June and 5 August in relation to this site?---Yes.
PN2655
What have those discussions been about?
PN2656
MR GREEN: I object to that, your Honour. This has not taken on the nature of a fishing expedition. It is not appropriate for Ms Gooley to go there. She has either got instructions that enables her to put a specific allegation or a proposition or she doesn't. If she doesn't she should forbear from asking questions of this nature.
PN2657
THE SENIOR DEPUTY PRESIDENT: Yes. Ms Gooley, I think you do need to be more specific Ms Gooley.
PN2658
MS GOOLEY: Thank you your Honour. Have you had any discussions between 23 June and 5 July with any representative of Bovis Lend Lease on site or off site about anything of any alleged industrial action on 23 June?---Yes.
PN2659
What did those discussions involve?---As I mentioned earlier I am not at liberty to say. It's an operational - - -
PN2660
Until there is a ruling to that effect, Mr Cruze, you don't decide what questions you do and don't answer?---I did actually answer the question though.
**** WARREN CHARLES CRUZE XXN MS GOOLEY
PN2661
Sorry?---I answered the question, yes.
PN2662
What were the discussions about?---As I mentioned due to confidentiality of our legislation which is the Building and Construction Industrial ..... I'm not at liberty to say.
PN2663
Unless your counsel objects you don't get to make that decision Mr Cruze.
PN2664
MR GREEN: With respect it's not a matter of whether I object or not. Either the witness is - it's not open for him to say it and if it's not he will say so.
PN2665
THE SENIOR DEPUTY PRESIDENT: I do need to be addressed on that. It is my view that he should answer the question unless I am satisfied that there is some proper basis for him not to.
PN2666
MR GREEN: I accept that, your Honour, but what I was addressing is the mere fact that I hadn't objected doesn't preclude this witness from invoking any statutory privilege that might cover matters arising, that's all.
PN2667
THE SENIOR DEPUTY PRESIDENT: I will need to be directed to that.
PN2668
MR GREEN: I follow, your Honour, but what I was gainsaying was my learned friend's proposition that in the absence of an objection it doesn't mean that there's not an issue.
PN2669
THE SENIOR DEPUTY PRESIDENT: I understand that but I will need to be addressed.
PN2670
MR GREEN: I follow that. I should say to your Honour that I am concerned for the reasons I have already articulated about the rather ambulatory nature and the global nature of the questions that are now being asked.
PN2671
THE SENIOR DEPUTY PRESIDENT: Yes. It does go to industrial action which may form part of the evidentiary base upon which I am being asked to find.
PN2672
MR GREEN: I follow that your Honour.
PN2673
MS GOOLEY: Your Honour, I have asked you to direct the witness to answer the question.
**** WARREN CHARLES CRUZE XXN MS GOOLEY
PN2674
THE SENIOR DEPUTY PRESIDENT: Yes. If you could answer the question Mr Cruze?---I have been advised of periods where there has been industrial action or alleged industrial action that have occurred on site.
PN2675
MS GOOLEY: On what dates it the alleged industrial action said to have occurred?---I would have to have a look at my records.
PN2676
Do you have them with you?---No, I don't.
PN2677
Did any of it relate to 23 June?---I believe it may have, I don't know, like I said I'd have to refer to my records.
PN2678
What about July 11 or 12?---Again I would have to refer to my records.
PN2679
Am I correct to say that you have been investigating possible industrial action that may have been occurring on this site?---As a team leader I have been contacted by representatives of Bovis Lend Lease advising me that there has been incidents on site and as I'm not actually investigating anymore, I refer them to my investigators and they actually investigate them.
PN2680
As part of that investigation do you examine the industrial instruments that apply at those sites?---Yes, and during a normal course of events we do.
PN2681
You would agree that provided the employees comply with their obligations under their industrial agreements and contracts of employment they are not taking industrial action?
PN2682
MR GREEN: Your Honour, that is outrageous, that question. If my learned friend wants to serve that up by way of a submission it's her right. If she wants to do this undercover of cross-examination that's a disgrace.
PN2683
THE SENIOR DEPUTY PRESIDENT: Yes, I think it is a matter more properly directed to me in submission, it's not for Mr Cruze to determine that point.
PN2684
MS GOOLEY: As part of your examination of this incidents do you review the collective agreements that apply on site?---As I mentioned earlier, yes we do.
PN2685
Do you have any regard when conducting those investigations as to whether the matters that have been raised with you are in fact industrial action?---That's a determination that we make as a course of our investigations.
**** WARREN CHARLES CRUZE XXN MS GOOLEY
PN2686
So to conduct an investigation you form a prima facie view that industrial action may be occurring?---We interview anyone that we believe has been involved in that incident and wherever the evidence takes us that is our view.
PN2687
In doing that do you have regard to the collective agreements that apply on site?
---Yes, we do.
PN2688
I'll take you to paragraph 13 of your statement?---Yes.
PN2689
That occurred before 7 am, is that correct?---Yes, that's correct.
PN2690
Paragraph 14 of that statement, that occurred before 7 am?---That's correct.
PN2691
Paragraph 12 of that statement, that occurred before 7 am?---Correct.
PN2692
When you arrived at the front site, at the front gate there was a meeting taking place?---At that point in time when I arrived there, there wasn't a meeting taking place.
PN2693
Was there a gathering of workers?---There was a gathering of workers, that's correct.
PN2694
People were talking?---Amongst themselves just in their small groups but there wasn't actually a meeting, there was soon thereafter when the meeting actually moved over to the delivery entrance to the gate where I saw that there was actually a meeting being held.
PN2695
I put it to you that the meeting being held occurred prior to 7 am?---Well I wasn't advised of that by the other two investigators that the ABCC had at the front of the site and I personally saw that a meeting took place soon after 7 am.
PN2696
Are you aware that Bovis Lend Lease had advised employees that if they entered the site they would be required to go and get their photographs taken and get a blue glue card?---I'm not sure what Bovis have advised the people on site.
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Walters.
<CROSS-EXAMINATION BY MS WALTERS [12.35PM]
PN2698
MS WALTERS: Mr Cruze, if I could take you to page 4 of your statement?
---Yes.
**** WARREN CHARLES CRUZE XXN MS WALTERS
PN2699
You say that from your observations you believe that you saw Mr Frank O'Grady on the site?---He was at the rear of the site.
PN2700
Did you see Mr Setcar at the site?---At the rear of the site and also at the front of the site.
PN2701
At the same time?---John actually arrived a little bit later - Frank was actually at the rear of the site when I arrived up there and then John turned up a little bit later than that.
PN2702
When did you first see Mr Setcar at the site?---Would have been probably close to six o'clock.
PN2703
Where did you first see him at the site?---At the rear of the site where I was from about 5.30 through to about five to seven.
PN2704
You were at the rear of the site from about 5.30 through to seven?---To just before 7 o'clock.
PN2705
Is it true to say that the meeting that Ms Gooley referred you to before took place at he front of the site, is that correct?---That's correct.
PN2706
You have given evidence that you saw a meeting taking place after 7 o'clock at the front of the site, is that correct?---That's correct.
PN2707
So it's true, given you're at the rear of the site just before 7 o'clock, that the meeting would have commenced prior to 7 o'clock, is that correct?---No, that's not correct.
PN2708
How do you know when the meeting commenced Mr Cruze?---I saw it commence just after seven. I arrived down to the front of the site at about five minutes to seven.
PN2709
Mr Cruze, when you're at the back of the site could you see the meeting occurring at the front of the site?---No, there was actually still workers moving - - -
PN2710
Mr Cruze, could you answer the question?---I said no.
PN2711
Right. So you can't see the front of the site from the back of the site?---That's correct.
PN2712
When did you arrive at the front of the site, Mr Cruze?---About five minutes to seven.
**** WARREN CHARLES CRUZE XXN MS WALTERS
PN2713
Was the meeting taking place, Mr Cruze?---No.
PN2714
I put it to you Mr Cruze that that's not correct. I put it to you that the meeting was occurring prior to 7 o'clock?---I left the rear of the site at five minutes to seven or got down to the front of the site at five minutes to seven, the meeting had not started, it was just soon after 7 o'clock, so probably about five minutes past seven when the meeting actually - the workers that were congregated out the front, congregating out the front, they moved over to the gate entrance where the deliveries actually come into the site and that's where the meeting actually was conducted and that was definitely after 7 o'clock.
PN2715
Mr Cruze, you say you recognise Elias Spervanassilos at the site?---Yes.
PN2716
Where did you first see Mr Spervanassilos?---At the front.
PN2717
When did you see him at the front?---Just after the meeting.
PN2718
At approximately what time?---That would have been probably close to quarter past seven, 20 past seven.
PN2719
You saw Mr Jerry Benstead at the site?---That's correct.
PN2720
When did you see Mr Benstead at the site?---At the rear of the site.
PN2721
He was at the rear of the site?---From about 5.30 onwards.
PN2722
You saw Mr Stephen Long on the site?---At the rear of the site as well.
PN2723
At what time did you see Mr Long?---About 5.30 onwards or just after 5.30.
PN2724
Mr Bob Mates?---Yes, at the rear of the site.
PN2725
When did you first see Mr Mates?---At just after 5.30.
PN2726
Mr Brandon Murphy?---At the front of the site.
PN2727
When did you see Mr Murphy?---Just after the meeting, probably about 20 past seven.
PN2728
Was Mr Murphy standing next to Mr Spervanassilos?---Not when I saw him, he was walking through the group of - there was approximately 100, 150 people there.
**** WARREN CHARLES CRUZE XXN MS WALTERS
PN2729
100, 150 people out the front of the site after the meeting?---Yes, before they were dispersed away.
PN2730
Mr Shaun Riordan, did you see him on site?---I did indeed.
PN2731
Where did you see him on site?---At the front.
PN2732
When did you see him?---About just after 7 o'clock when I returned to the front of the site.
PN2733
There are two exhibits to your statement which are marked - there are two photos, have you got the two photos?---Yes.
PN2734
When did you take those photos?---The first one was at about probably 10 past seven.
PN2735
The second photo?---The second one was actually when the meeting was being held, so between 10 past and 20 past seven. As you can
see the workers - as I mentioned earlier, the workers were out the front of the site and just to the
right - - -
PN2736
Hang on Mr Cruze. This second photo was taken at what time?---That was before the workers had actually moved across to the site delivery entrance gate.
PN2737
Mr Cruze, I asked you what time - - -
PN2738
MR GREEN: The witness has already answered that, with respect, he said about between 10 past seven and 20 past?---Probably actually between five past and 10 past, so it was before the workers had actually moved across to the site.
PN2739
MR KIMBER: It might be helpful if Ms Walters could indicate when she talks about the first and second photo I must say I'm a bit confused referable to the markings on the annexures. Perhaps if she can identify by - - -
PN2740
THE SENIOR DEPUTY PRESIDENT: I presume in the order they appeared in the statement. The long distance one is the one you are considering to be the first photograph Mr Cruze?---Yes, that's correct.
PN2741
So the long distance is the first and the closer image is the second.
PN2742
MR KIMBER: Thank you.
**** WARREN CHARLES CRUZE XXN MS WALTERS
PN2743
MS WALTERS: Your Honour, WC2 and WC3. So Mr Cruze, you say that WC3 was taken, I think your last evidence was between five past seven and 10 past seven, is that correct?---That's correct.
PN2744
Can you explain to the Commission where that photo was taken?---I was in the tram, pretty much in the tram stop, sort of - right in the middle of Flemington Road.
PN2745
Can you identify any individuals in that photo?---No, I can't.
PN2746
Was this photo taken in the vicinity of the meeting that you say was taking place at that time?---It's at the same time, the meeting that I was referring to is probably about 30-40 metres from the right of that picture where there are two large delivery entrance gates and it was actually in the entrance to one of those gates.
PN2747
Mr Cruze, are these the only two photos you took at that time?---We took probably three or four others but just due to the darkness you couldn't actually see a great deal, the clarity was quite poor.
PN2748
Can I take you to paragraph 12 of your statement?---Yes.
PN2749
Paragraph 11 as well sorry Mr Cruze?---Yes.
PN2750
THE SENIOR DEPUTY PRESIDENT: Could you hold on one moment, somebody has a mobile phone turned on which is interfering with the recording of the witness's evidence. I wonder if everyone can check and it needs to be turned off not simply on silent. Yes, go ahead.
PN2751
MS WALTERS: So, paragraphs 11 and 12 of your statement?---Yes.
PN2752
You also say that you were standing at the rear of the site between 6 am and 7 am?---That's correct.
PN2753
And did you see workers arriving for work from the rear of the site?---That's correct. My understanding is that they utilized the car park over near the Royal Melbourne Zoo or the Victorian Netball Association because there's not a great deal of parking around the area and they actually walk through the part to enter through the site at the rear - through the rear gate.
**** WARREN CHARLES CRUZE XXN MS WALTERS
PN2754
And how many workers did you see arriving for work at the park at the back?
---Probably would have seen about 50.
PN2755
You say they were approached by four or five officials, Mr Cruze?---Yes.
PN2756
Which officials were they?---It was mixed all the time. They were changing and chopping over the whole hour.
PN2757
Well, you seem to be able to identify officials with some ease. You've taken us through in paragraph 9 - - -
PN2758
MR GREEN: My learned friend shouldn't comment like that. She either puts the question or she doesn't.
PN2759
THE SENIOR DEPUTY PRESIDENT: I think there's nothing inappropriate in that, that introduction. Yes, go on, Ms Walters.
PN2760
MS WALTERS: Mr Cruze, you've identified officials of both the ETU, the CFMEU in paragraph 9 and paragraph 23 of your statement. You've given evidence that you were able to identify those individual officials being present at different times on the site on that morning. I put it to you that - well, Mr Cruze, how can you say they were officials of - - - ?---I know for one, Gerry Benstead, was handing out the flyers, a double sided black and white flyer which I think is marked as WC1 to my statement.
PN2761
So you say Gerry Benstead was handing out flyers to these 50 workers between 6 am and 7 am who were approaching the site from the rear?---That's correct.
PN2762
That's one out of four or five?---I know that Stephen Long was also handing out flyers.
PN2763
That's two out of four?---Mick Montabello was approaching the guys as they were either getting off the tram or walking through the park. Frank O'Grady also had a handful of flyers, handing them out.
PN2764
Between 6 am and 7 am handing them to the officials to the rear of the site?---No, handing them to the workers as the workers arrived.
PN2765
The workers, right?---John Setger didn't actually approach any of those guys because he was busy having a chat to us.
**** WARREN CHARLES CRUZE XXN MS WALTERS
PN2766
I think that's about six or seven, but any other officials between 6 am and 7 am - - - ?---At the rear, they were the only six that I could actually see at the rear that I actually recognized.
PN2767
Is there any reason why you didn't name them in your statement, Mr Cruze?---I have named them as the six people, of six union officials.
PN2768
Not at paragraph 11?---At paragraph 9. They were at the rear of the site. Like I said they were chopping and changing quite frequently, there'd be a different two or three. There may have been some other people that weren't union officials but had a fair bit of union branding on them that were actually approaching the guys as well.
PN2769
So can you categorically say that you saw Gerry Benstead between 6 am and 7 am handing out a flyer at the rear gate?---Yes. 100 per cent.
PN2770
And did you se him on one occasion?---Numerous occasions.
PN2771
Can you identify those times?---Not to the minute. Between 6 am and 7 am. I also saw him post one - or stick one on to a telegraph pole and that's how actually we became in possession of the flyer.
PN2772
You took it off the telegraph pole?---Correct.
PN2773
And at what time did you see him to that?---That was probably about quarter to seven and we removed it as we were leaving the rear of the site to head back down to the front of the site just before 7 o'clock.
PN2774
How long did it take you to remove it, Mr Cruze?---Probably about three seconds. It was actually Michelle Kosadinos who actually removed it.
PN2775
And did you then go directly to the front of the site?---That's correct.
PN2776
And so you say at 6.45, Mr Cruze, that you and Ms Kosadinos took down this poster?---No, it was just as we were leaving, so it was about five minutes to seven.
PN2777
No, Mr Cruze, you just said that was at 6.45?---No. I said Gerry Benstead put up at 6.45. We actually left the rear of the site at about five minutes to seven. That's when we removed it, as we were walking through the park.
**** WARREN CHARLES CRUZE XXN MS WALTERS
PN2778
MR GREEN: With respect, the witness' understanding is superior to the question that's been put. That was his evidence.
PN2779
THE SENIOR DEPUTY PRESIDENT: Yes, well, he's clarified that. Thank you, Ms Walters.
PN2780
MS WALTERS: Yes, I'll move on, yes.
PN2781
Can I take you to paragraph 14 - sorry. Can I take you to paragraph 13, Mr Cruze?---Yes.
PN2782
You say that the officials were standing in the front, in front of the gate?---Yes.
PN2783
And you heard them telling workers words to the effect of - and you've got a quote there. Did you hear any officials say that?---Yes.
PN2784
Which official did you hear say that?---Bob Mates. John Setger. As I said, they were taking it in turn, so I could probably just about say that they all said it at some stage. It was words to the effect of exactly that, "Don't enter through the gate, boys. Go down the front to a meeting."
Your Honour, nothing further.
<RE-EXAMINATION BY MR GREEN [12.52PM]
PN2786
MR GREEN: Mr Cruze, you've been asked some questions by my friend, Ms Walters, about the two photographs. Would you go to the first of those, WC2?---Yes.
PN2787
About two-thirds of the way across the page you can see the threshold of the door there. Do you see that?---Yes.
PN2788
Would you flip over to WC3, you can see another threshold there in the background. What's the relationship between the threshold in the first photograph, WC2, and that in the second, WC3?---It was pretty much the same area of the site entrance.
PN2789
On the basis of that evidence, then the threshold in WC3 is a detail, is it, of the threshold you can see in the distant background in WC2?---That's correct.
**** WARREN CHARLES CRUZE RXN MR GREEN
PN2790
Would you go back to WC3 about which you were asked some questions. Right in the middle of the threshold there, there are three men in the front ranks there and the one in the middle appears to have his middle finger upraised in that fashion. Can you identify who that person is?---I can't, but I - from the outfits that they were actually wearing I know they're from a support group called Union Solidarity. It's actually branded down the side of the black and white - or black, red and white outfits they were wearing. I don't actually know who they actually are.
PN2791
You were asked some questions about the meeting that took place?---Yes.
PN2792
About when did that meeting begin?---At five minutes past 7.
PN2793
About when did that meeting end?---About 20 minutes past 7.
PN2794
Where were you in relation to the meeting?---I moved myself so I could actually take a picture of this group. I moved myself into the centre median strip where the tram stop was to take a couple of photos and then I moved myself over to the footpath on that actual site.
PN2795
And those photographs you've mentioned, which, if any of the two are before his Honour?---Excuse me, can you - - -
PN2796
You said you took some photographs?---Yes.
PN2797
Of the photographs you took, are any of those WC2 or WC3?---Yes, they both are.
PN2798
Doing the best you can, about what elapse of time was there between the taking of the one photograph that's before his Honour, that's WC2?---Yes.
PN2799
And the one taken in WC3?---Probably about five minutes.
PN2800
Your Honour, unless your Honour has any questions that concludes the re-examination.
PN2801
THE SENIOR DEPUTY PRESIDENT: Can you just clarify for me, Mr Cruze, the gate. The gate, which would be vehicle access or a gate accessible through the turnstiles which are installed on the site?---This gate here is the main site entrance gate.
**** WARREN CHARLES CRUZE RXN MR GREEN
PN2802
That leads you through the turnstiles?---No. That takes you into the site office area. The turnstiles are up the side of the actual site itself, further on, so my understanding is that you'd enter into the site office. You would do your induction, get your photo taken and then to actually enter the construction site itself, you would then enter through the turnstiles.
PN2803
That's not the truck or anything?---No. The truck's actually - no, the truck entrance is probably about 30 to 40 metres to the right of WC3 where there's two quite large truck entrances that were both actually closed at the time.
PN2804
And you entered through the gate shown on the - the door shown on the photographs, yes?---Yes, I entered through the gate, yes.
PN2805
MR KIMBER: Does your Honour mean through the door or through the gate?
PN2806
THE SENIOR DEPUTY PRESIDENT: Well, it looks like a door?---It's actually a door, it's actually a door.
PN2807
Yes.
PN2808
MR KIMBER: I only make that remark, and I apologise, because it does seem to be - there is a door and there's a gate and they're discrete things, as I understand it.
PN2809
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2810
MR GREEN: The gate to which you're referring is at the northern end of the property, isn't it, that is on the zoo side of the property?---Yes. It's the same similar set-up to what's at the front here. Pretty much exactly the same. It actually is a door and then you'd have to walk into the area and then there's the turnstiles that are probably about 30 or 40 metres inside the door - not even that much. Probably about 10, 15 metres inside the site perimeter.
PN2811
The gate to which you've referred in your evidence doesn't get a look in in either of the photographs, though, does it?---No. I didn't take a photo of that.
PN2812
May Mr Cruze be excused, your Honour?
THE SENIOR DEPUTY PRESIDENT: He may indeed.
<THE WITNESS WITHDREW [12.57PM]
PN2814
THE SENIOR DEPUTY PRESIDENT: Where does that leave us?
PN2815
MR KIMBER: Your Honour, that's left us with the position where I need some time to get instructions from the site, but secondarily, with respect, it seems that the issue of what's to happen after lunch needs to be addressed at this time before we adjourn.
PN2816
THE SENIOR DEPUTY PRESIDENT: Yes, I think that's correct, yes. You don't have any issues in light of what's been said, Ms Gooley or Ms Walters?
PN2817
MS GOOLEY: Sorry, your Honour?
PN2818
THE SENIOR DEPUTY PRESIDENT: Perhaps I'll go to Ms Walters in the first instance. You raised in a discussion between myself and all counsel prior to commencing today the possibility of seeking an adjournment, Ms Walters. What's the situation?
PN2819
MS WALTERS: If your Honour pleases, I did, consistent with our discussions this morning, make some inquiries about any capacity to change the time. I've been unsuccessful in doing that. However, I have now - the CFMEU has not instructed Ms Gooley to appear on its behalf for that period of time which I'm unable to attend the Commission and I will come back as soon as I finish the disputes matter, your Honour.
PN2820
THE SENIOR DEPUTY PRESIDENT: Yes. I'm instructed Ms Gooley in here, as it were?
PN2821
MS WALTERS: Yes, to appear in the Commission proceedings on behalf of the CFMEU.
PN2822
THE SENIOR DEPUTY PRESIDENT: I'm sorry. I was concerned, for a moment I thought you'd instructed her to appear at the disputes - - -
PN2823
MS WALTERS: No, your Honour. I think Mr Merriman would have something to say about that.
PN2824
THE SENIOR DEPUTY PRESIDENT: Yes. Very well, I think perhaps we just adjourn until 2 o'clock.
<LUNCHEON ADJOURNMENT [12.59PM]
<RESUMED [2.08PM]
PN2825
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Kimber?
PN2826
MR KIMBER: Your Honour, I indicated before lunch that we'd had the annexures to Mr Broadhead's affidavit insofar as they were handwritten file notes. We've had those typed in a verbatim fashion that would make it easier for everybody to read. Can I hand up a set? They're marked as to what they are and we're handing them out, as I say. I'm sure that it's not a paraphrased but a verbatim account of the same evidence albeit in a more legible form.
THE SENIOR DEPUTY PRESIDENT: Yes, well.
EXHIBIT #BLL12 TYPED ANNEXURES TO
MR BROADHEAD'S AFFIDAVIT
PN2828
MS GOOLEY: Your Honour, I just reserve our rights in relation to that exhibit. We obviously just received it and haven't had a chance to check that it's correct.
PN2829
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN2830
MR KIMBER: Yes, that's entirely correct. As I say it's supposed to reflect - the marks on the top, it's supposed to be exact. It's not new evidence as such, it's the typing up of the existing evidence.
PN2831
THE SENIOR DEPUTY PRESIDENT: Yes.
MR KIMBER: Your Honour, I indicated before lunch that I was receiving instructions about events that are taking place at the ANZ Montage and Myer site this morning and I have those instructions and I would now seek to call some evidence about what's happened today. I call Joel Keeble, K-e-e-b-l-e.
<JOLYON HAROLD GEOFFREY KEEBLE, AFFIRMED [2.10PM]
<EXAMINATION-IN-CHIEF BY MR KIMBER
PN2833
MR KIMBER: Your Honour, can I say immediately that Mr Keeble is now about to give some evidence about the events occurring at the ANZ, Montage and Myer site this morning including evidence of activity that involved the aborting of a concrete floor. In light of your Honour's ruling about anybody intending to give evidence in the proceedings should not be in the room, can I just say immediately if Ms Gooley is aware that anybody is in the room that is intending to give evidence or might be intending to give evidence about the events of today, that now would be an appropriate time for them to leave the room. If she's in a position to know that, then might be - - -
PN2834
THE SENIOR DEPUTY PRESIDENT: Ms Gooley, are you aware of any evidence you would propose calling in relation to - - -
PN2835
MS GOOLEY: I have no notion of what the evidence is going to be given is, so I have no ability at this stage to say whether I have people who will be intending giving contradictory evidence. I just simply don't know what evidence is about to be given. So I'm not sure how I can be expected to know that I would be calling witnesses about the evidence.
PN2836
THE SENIOR DEPUTY PRESIDENT: Yes. Well, presumably, Mr Kimber, any witness from amongst the respondents would be entitled to be in the court for the purpose of instructing. It's others who may not be in that category, I presume.
PN2837
MR KIMBER: Certainly she's entitled to have people to instruct her. I accept that there's some difficulties in light of the fact that we haven't - by dint of recency, we haven't been able to provide any advance notice as to it. I just thought just in case they - I did advert to this matter this morning and I'm not sure it's not secret men's business. It's out on the street literally, but be that as it may, I'm happy to proceed.
PN2838
THE SENIOR DEPUTY PRESIDENT: Yes, go ahead, Mr Kimber.
PN2839
MR KIMBER: Mr Keeble, would you give your full name and address to the Commission, please?---My name is Jolyon Harold Geoffrey Keeble. I live at (address supplied).
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2840
Your occupation?---I'm a construction manager at the ANZ site.
PN2841
Employed by whom?---Bovis Lend Lease.
PN2842
How long have you held that position?---Since the project commenced in March last year.
PN2843
And your responsibility as construction manager, does that extend across ANZ, Montage and Myer?---No. It is limited to the ANZ site.
PN2844
These three sites are all in the same precinct, are they not?---Yes, they are all in the Vic Harbour precinct.
PN2845
In terms of accessing the three sites, do they all have their own independent vehicular access or is there some common system for access?---There are two common gates into the Vic Harbour precinct and then each site has its own discrete gates to enter and leave the site.
PN2846
And the common site, the common entry points for the three sites, what are they referred to as?---Gate A is the west gate and Gate B is the east gate.
PN2847
And these gates, are they for both pedestrians and vehicles alike or are you talking here about vehicle?---Gate A and Gate B are both pedestrian and vehicular access into the precinct. There is a third pedestrian access into the precinct off in the Port Lane, the north gate, if you like.
PN2848
Now, did you attend to work at the precinct, the Victoria Harbour precinct this morning?---I did.
PN2849
And did you seek to enter the site by Gate A or Gate B?---I enter the site by Gate A each morning.
PN2850
And what time did you arrive at work this morning?---20 to 7.
PN2851
When you approached Gate A did you observe anything?---A large congregation of work men had gathered outside of Gate A.
PN2852
And when you say work men, did you recognize them to be work men ordinarily who worked on the Victoria Harbour projects?---I recognized that some of them to be work men I know to work on the ANZ site.
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2853
How many people do you say were there, roughly?---150-odd men.
PN2854
And apart from employees or people who work on the site, did you recognize or did you identify anybody else who wasn't an employee who usually works on the site?---I recognized one union official.
PN2855
Who was that?---Elias.
PN2856
What do you know him to be?---I know that he is a union organiser who has - who I've known for many years.
PN2857
Indeed, is he in the court now?---Yes. Elias.
PN2858
Standing in the doorway. Now, apart from Mr Elias, did you recognize either by name or any other means, any other officer of officer of the CFMEU?---Not as I arrived at work, no.
PN2859
And after you arrived and you saw Mr Elias, was he with or apart from the men that you identified that were there?---Would you repeat the question?
PN2860
Was Mr Elias with the men, the employees that you referred to or was he standing separately form them?---He was amongst them.
PN2861
What did you observe next?---I drove through Gate A, parked my car and went and got myself a coffee at the café, as I normally do on the way into work.
PN2862
Did you observe any activity being undertaken by the men that you'd seen at the gate at that time?---Well, clearly there was a gathering forming. On arriving at site and into the office I understood talking to some of the men who'd already been at work, that a meeting was being called for 6.45.
PN2863
But I take it from what you've said you didn't go back out to observe that meeting?---I did not.
PN2864
Then in terms of the workers that you observed outside Gate A, were you able to identify whether they were from all the three sites within the Victoria Harbour precinct, or not?---I made an assumption that they were from all three. I could not say that for sure.
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2865
What happened next after you got your copy, did you come into some information about what was happening outside or what had happened?---Yes. I would say by 7 o'clock I got news that the meeting had concluded and that the men had chosen to exercise their democratic right and attend this hearing.
PN2866
When you use that expression, "they chose to exercise their democratic right and attend this hearing" that's what you were
told had been said by the men?
---Correct.
PN2867
MS GOOLEY: I would ask my friend to stop leading the witness.
PN2868
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2869
MR KIMBER: I thought it was a clarification as to whether or not it was something that was reported to him verbatim or whether it was his own assessment of the situation.
PN2870
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2871
THE WITNESS: I would say it was both.
PN2872
THE SENIOR DEPUTY PRESIDENT: Well, just take a little care.
PN2873
MR KIMBER: Thank you, your Honour. And so who was it who told you as to the stated reason why the men had resolved to come to the Commission rather than to work? Who told you that?---I think it was Ash.
PN2874
Ashley who?---Ashley Dunn, a foreman on the job. It's an action that's been taken in the last couple of days. So it was not a big surprise. It's been a position that's been taken prior to today.
PN2875
MS GOOLEY: Can I just say this once so that I don't have to get up every time. To the extent that his answers in fact contain hearsay, we object.
PN2876
THE SENIOR DEPUTY PRESIDENT: Yes. Unless someone has submissions, I'll - - -
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2877
MR KIMBER: Now, Mr Keeble, after you were informed, or what you were told had occurred, what did you do next?---I proceeded to understand what work was being effected on the site. I was aware that we had a concrete pour scheduled for that date.
PN2878
And what time?---The pour was scheduled to start at 10.
PN2879
After you were advised that the men were leaving the site for the stated reason, did you observe any of the men that you'd seen outside or at all on the site?---No. Not specific people, no.
PN2880
All right. So you inquired as to the state of the work and by reference to the concrete pour, what did you do next?---I spoke to Dale Sutton who is the supervisor for Kaley Formwork and Concrete Contractor on the job and asked him on the state of the pour. He informed me that he had concreters on site and that the pour was to go ahead and that we had a pump to be delivered at 10 o'clock.
PN2881
Did you make any observation at or around this time as to how many workers were actually still on site at the ANZ site?---I was aware that the majority of the work force had chosen to come here, to hear their case. I was keen to establish who was left on site and how we were going to undertake a concrete pour in a safe manner.
PN2882
After you spoke to Dale Sutton from Kaley's, what did you do next?---On the basis that the concrete pour was to proceed, I needed to establish that we had Alimacks that could be operated, first aid that could be manned and electricians on site in case of the need for electricians.
PN2883
All right. Did you satisfy yourself as to those matters?---I did.
PN2884
What did you do next?---I instructed Ash Dunn to attend Gate B along with another foreman from the site and I took Peter Creaco, a foreman from our team, to go to Gate A to see that concrete trucks were able to get into the site, into the precinct.
PN2885
What time was it that you attended to Gate A?---A quarter to 10.
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2886
THE SENIOR DEPUTY PRESIDENT: I wonder, Mr Keeble, if you could speak up?---Sorry.
PN2887
MR KIMBER: This may help. Now that I see it's a shame that I haven't produced this before. Can I show you this map, it's the Victoria Harbour site layout, Mr Keeble. If you could just identify that for me. Does that fairly reflect the layout of the sites and show the location of the Gate A and Gate B that you've just referred to?---It does.
I tender that Victoria Harbour site layout map.
EXHIBIT #BLL13 VICTORIA HARBOUR SITE LAYOUT MAP
PN2889
MR KIMBER: I think you've said that Mr Dunn went to Gate B which is shown on the right hand side of BLL13, and you went to the gate marked A on that exhibit, is that right?---Correct.
PN2890
When you got there what did you observe?---As normal our security guards were attending Gate A and I also observed two union officials and group of other men who I do not know, but assume to be associated with the union.
PN2891
Why was that?---A number of them wore the black hat that is commonly worn by union officials.
PN2892
You said two of them were known to you or you knew them to be officials?
---Two of them were known to me.
PN2893
Who are they?---Derek Christopher and Adrian McLaughlin.
PN2894
What union are they associated with?---They're both associated with the CFMEU.
PN2895
Do you know what their role is in that union?---No, I don't know their role specifically.
PN2896
I think as to the number of men that were there at Gate A, how many in toto did you say there were?---There were two plus 10.
PN2897
So 12 people?---12.
PN2898
Were they all dressed the same or not in terms of the black hats you referred to?
---No, not all of them.
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2899
How many of them would you say?---Six, five.
PN2900
So when you arrived at Gate A what were the 12 men doing?---They were standing some 15 to 20 metres west of Gate A.
PN2901
Yes?---In a group. I didn't ask their business. They were standing outside of our buildings, outside of the Vic Harbour precinct. I didn't approach them.
PN2902
Were they on the road or on the sidewalk, or where were they?---On the sidewalk.
PN2903
What happened next?---I got word - at about 10 o'clock I saw the concrete pump arriving down Bourke Street and on its arrival at Gate A or 10 or 15 metres approached the concrete truck as it drew to a halt.
PN2904
Yes, and did you observe anything in terms of the conduct of the 12 men that you'd identified that were at Gate A at that time?---Two of the men, Derek and Adrian, also approached the truck with me, alongside me. The other group of men gathered in front of the truck.
PN2905
When you say gathered in front of the truck, what do you mean by that?---Stood in a group in front of the truck.
PN2906
On the road or on the sidewalk?---On the road.
PN2907
And did you have a conversation with the driver of the concrete pump truck?---I did. I spoke to the concrete pump driver and assured him that the site was open, that we had men on site waiting for him to arrive, and pretty much left it at that.
PN2908
Did Mr McLaughlin or Mr Christopher say anything to the truck driver in your earshot at that time?---Mr McLaughlin informed the pump
driver that
the site, or that the men had elected were - that there was an IRC hearing being heard today and that the majority of the workforce
had exercised their democratic right to witness and to hear the case be heard and had left the site.
PN2909
Did they say anything else within your earshot?---No. That was the general gist of the discussion. I said to the driver that I thought that was an accurate assessment of what was going on, that, yes, the majority of the workforce had left the site and had gone to the IRC under their own choice, but I was assured - wanted to assure the driver that he also had a choice. He could attend to work if he wanted or he could attend an IRC hearing if he wanted.
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2910
This is the truck driver?---Correct.
PN2911
And did he respond to that?---He said, "Well, I can't drive forward across those blokes standing in front of me."
PN2912
When you say they were standing in front of the truck on the roadway, you said they were gathered. Were they standing in any particular
formation or - - - ?
---They did form a line, linked arms.
PN2913
Where?---Directly in front of the truck, between the truck and the gate.
PN2914
And did that happen before or after the driver made the remark he made about driving over people?---I assume that it was made at about the same time. There's a conversation that's taken a very short space of time.
PN2915
So what happened next?---I said to the driver that I didn't expect him to drive over the top of anyone and that he should contact his boss. I then noticed that the men standing shoulder to shoulder and also noticed that Adrian and Derek had moved a little away from that group. I approached Adrian and asked him why there were men standing arm in arm in front of the truck.
PN2916
What did he say?---"They're stopping the truck from entering the site."
PN2917
Did he say why?---Because - no.
PN2918
He didn't say why, and what did you say to him?---I said, "I don't think that is providing that driver a democratic opportunity to choose whether or not he attends site."
PN2919
What did he say in response to that?---No, he didn't. He said, "No, that's not what they're doing. Those blokes are just good mates and they like each other."
PN2920
Meaning the fellows who were linked arms?---Correct.
PN2921
How many - of the people that you'd observed outside Gate A that you'd referred to earlier - how many of them had linked arms in front of the truck?---Ten.
PN2922
And I take it from what you said that that didn't extend to Mr McLaughlin or Mr Christopher?---It did not.
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2923
The truck is still there at this stage and the men were still on the road in front of it. What happened next?---The truck driver spoke to his boss on the phone who instructed him to back on and travel around the precinct to Gate B and wait further instruction.
PN2924
Did he then leave?---He did.
PN2925
Do you know from the reports that you thereafter received whether or not he did in fact go to Gate B?---I'm not certain that he went to Gate B.
PN2926
And after the truck left, what happened next?---Well, we knew that a slurry truck or a concrete truck was arriving on site, which is the normal procedure prior to a pour. I chose to wait there to see what occurred when the concrete truck arrived.
PN2927
And did it arrive?---It did arrive, about 10 minutes, 15 minutes later.
PN2928
What happened then?---At that point I again approached the concrete truck driver, welcomed him to the site, explained to him the situation that was going on and he made the decision, "Look, I'm not driving through a picket line. I'm going to speak to my boss." I said I thought that was fair enough.
PN2929
What happened next?---Soon after that a number of the concreters, three or four of the concreters who had been located on the building site arrived at Gate A, having been spoken to by Adrian McLaughlin.
PN2930
When you say having been spoken to, you mean did you observe him talking to them?---He told me that - well, he informed me that he was going down the site to speak to those men.
PN2931
Then he returned to the gate with those men?---Yes.
PN2932
Did you know who those men were?---I knew them - I know them not by name, but certainly by appearance.
PN2933
Who do they work for?---Kaley Constructions.
PN2934
And are they concreters?---Yes.
PN2935
What happened when he came back to the gate with the four men?---There was some celebration to the fact that those men had chosen to leave the site.
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2936
How was that demonstrated?---A cheer.
PN2937
Cheers?---Cheers.
PN2938
Yes, and what happened next?---They were provided with vehicular access up to the IRC, I assume. I know that was the intent of where they were being taken.
PN2939
They got in a car a left?---Correct.
PN2940
The truck driver, had he already left by this stage?---I think at about the same time he decided that he'd go and try Gate B.
PN2941
Do you know whether he did or didn't try Gate B?---I believe he did try Gate B, yes.
PN2942
Do you know whether he got access to the site?---He did not, no. He was met with similar circumstances.
PN2943
Did the concrete pour - I take it from what you said the concrete pour didn't take place today as planned?---It did not.
PN2944
In terms of the employees or the persons working on the ANZ site that you indicate that you're responsible for as construction manager, did you have any advance notice that a significant body of the workforce was electing or proposing to come to the IRC rather than to work today?---It would be - I did not have official notice. I had a suspicion that that would be the case today.
PN2945
I take insofar as the people that were involved were not direct employees - the people that you observed who left the site, were they direct employees of BLL or were they employees of the contractors?---Most of the men working on the ANZ site are subcontracted employees. Only one per cent, perhaps two per cent of the workforce is directly engaged by BLL.
PN2946
Had you received any notice from any of the contractors who employ these workers, either earlier today or yesterday or even prior to that of their intention not to come to work or attend for work at all? Did you get any advance notice from the contractors?---Not official notice, no.
PN2947
In terms of the ANZ site, how many people would ordinarily - how many contractor employees would ordinarily be on site on a normal work day?---In the order of 500.
**** JOLYON HAROLD GEOFFREY KEEBLE XN MR KIMBER
PN2948
And what do you say - after the men that were there at the gate this morning, once they'd departed, how many people were actually on site at ANZ today?---20-odd men.
PN2949
20 out of the 500?---Correct.
Yes, thank you. Nothing further.
<CROSS-EXAMINATION BY MR GREEN [2.35PM]
PN2951
MR GREEN: Mr Keeble, are you aware that Adrian McLaughlin had his entry permit revoked by a member of this Commission?---I think I have heard that in the past, yes.
PN2952
And are you aware - - -
PN2953
MS GOOLEY: I wonder what the relevance of the question of whether Mr McLaughlin's permit has or hasn't been revoked to these proceedings.
PN2954
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Green?
PN2955
MR GREEN: Well, your Honour, as I'm instructed, your Honour yourself actually made an order revoking Mr McLaughlin's entry permit.
PN2956
THE SENIOR DEPUTY PRESIDENT: Yes. What's the relevance to these proceedings?
PN2957
MR GREEN: Well, it's not strictly relevant, your Honour, but your Honour might wish to know that such a revocation occurred, as I'm instructed it did, that the person whose permit has been revoked might have been acting contrary to the terms of the Commission's own revocation order.
PN2958
THE SENIOR DEPUTY PRESIDENT: The period of suspension of Mr McLaughlin's order expired some time ago.
PN2959
MR GREEN: That's a matter as to which I don't have any specific instructions, your Honour. But if your Honour tells me that I accept it.
PN2960
THE SENIOR DEPUTY PRESIDENT: I can't see the relevance of it, Mr Green.
**** JOLYON HAROLD GEOFFREY KEEBLE XXN MR GREEN
PN2961
MR GREEN: No. I can't make out a case that it's strictly relevant.
PN2962
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN2963
MR GREEN: The question was put on the footing that it might be something as to which the Commission might be informed.
PN2964
THE SENIOR DEPUTY PRESIDENT: Well, I'm certainly informed of the order that applied in respect of Mr McLaughlin.
PN2965
MR GREEN: Well, I'm better informed for having had this exchange with your Honour too, thank you, your Honour.
PN2966
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Gooley?
PN2967
MS GOOLEY: Your Honour, may I have a short adjournment so I can get some instructions on these matters?
PN2968
THE SENIOR DEPUTY PRESIDENT: Yes. How long would you need?
PN2969
MS GOOLEY: 10 minutes, 10 to 15 minutes.
PN2970
THE SENIOR DEPUTY PRESIDENT: Yes, very well. I'll adjourn the court until a quarter to 3.
<SHORT ADJOURNMENT [2.37PM]
<RESUMED [2.50PM]
MR KIMBER: Your Honour, there was one mater I needed to attend to.
<RE-EXAMINATION BY MR KIMBER [2.50PM]
PN2972
Mr Keeble, I asked you about the number of people that were remaining after the men departed and I think you said 20. By what time was it down to 20, or what time in the morning, this morning, was it down to 20?---I would estimate that between - by 7.30 it was - the workforce had departed site.
PN2973
When you say the workforce had departed site, did you actually observe workers that were on site leaving site?---Yes.
PN2974
Right, and what did you observe? Were they carrying anything or - - - ?---Only the bags that they come to work with, their lunch kit, their coats. That would be all.
PN2975
Did you observe, were they leaving the site from a particular case?---Well, they generally depart through either Gate A or B. So they will leave the site and walk either to Gate A where many of them park their cars or to Gate B where access into the city and Southern Cross Station is most easily - - -
PN2976
When you refer to their lunch box and their gear, where is that usually kept when they're on site?---See the big yellow blob that is the ANZ site.
PN2977
That's a very big lunch room?---Right in the middle of that.
**** JOLYON HAROLD GEOFFREY KEEBLE RXN MR KIMBER
PN2978
Right where it says ANZ?---Yes, about there, on car park level 1.
PN2979
THE SENIOR DEPUTY PRESIDENT: I think the restrictions on discussions with the employees in the lunch room work better when it's so large, Mr Kimber.
PN2980
MR KIMBER: That's right.
Yes, thank you, Mr Keeble.
<CROSS-EXAMINATION BY MS GOOLEY [2.52PM]
PN2982
MS GOOLEY: Now, Mr Keeble, the meeting that you saw happening at 6.40 this morning, there was a meeting - - - ?---I didn't see the meeting. I only saw a gathering of men in preparation for a meeting.
PN2983
And that was outside the site?---It was.
PN2984
Now, were you on the site last Wednesday?---Yes.
PN2985
How many of your workers were present last Wednesday?---In the morning, 500 would have been - would have come to work. I suspect that only - that following a meeting on Wednesday morning a similar proportion would have left the site.
PN2986
So there were about 20 left?---I would have to check my diary but I know the majority of the workforce left.
PN2987
And what about Thursday?---Similarly.
**** JOLYON HAROLD GEOFFREY KEEBLE XXN MS GOOLEY
PN2988
And what about Friday, last Friday?---I'm - was there an IRC hearing last Friday?
PN2989
There was an IRC hearing?---I think that it was a very similar situation on Friday with the majority of the workforce leaving site.
PN2990
And you knew this hearing was on today?---I did.
PN2991
And so you anticipated that the same thing that happened last Friday would happen today?---I did.
PN2992
Who told you to organize a concrete pour for today?---Most building decisions like that are made by a group of us on the site, so that decision was made in consultation between Kaley and myself.
PN2993
So you made the decision to have a concrete pour - - - ?---I should correct that. It was not made in consultation with me.
PN2994
It wasn't made in - - - ?---It was not made in consultation with me.
PN2995
Were you involved? You weren't involved?---I was not involved.
PN2996
And was it 12 people who were outside the premises when the concrete truck arrived?---12 plus myself, plus Peter Creaco, plus three security guards.
PN2997
And there were two trucks arriving?---One 10 or 15 minutes after the other.
PN2998
What was the first one?---A concrete pump. A mobile pump.
PN2999
And the second one?---An agitator.
PN3000
And excuse my ignorance, and I don't know that I want to admit it in front of the people who are here, but is the agitator that thing that turns around?---Yes. Cement mixer.
PN3001
Cement mixer, thank you. And you need both trucks to do the concrete pour?
---Yes. The pump pumps the concrete. The agitator delivers the concrete to the pump.
PN3002
Thank you. And the people who weren't your security guards or BLL direct employees?---Yes.
**** JOLYON HAROLD GEOFFREY KEEBLE XXN MS GOOLEY
PN3003
So there were 10 people plus two people you recognised?---Correct.
PN3004
And those 10 people were the people you say performed a line in front of the truck?---Correct.
PN3005
And did you recognize any of those people?---No.
PN3006
And the two people you say who were from the CFMEU?---Yes.
PN3007
One of them spoke to the truck driver?---Yes.
PN3008
And the other one didn't do anything?---The other one did not speak to the truck driver.
PN3009
And one of those people - - - ?---He certainly did not that I heard.
PN3010
One of those people you say went on to the site. When did that occur?---In between the two trucks arriving. So the first truck had arrived, a line was formed. I went and asked Adrian and Derek, "What's going on here?" Adrian and Derek then explained to me that they were going down on to the site to speak to the concreters. I asked them to go on to the site, they abide by the right of entry provisions and the site rules and the first thing I requested was that they provide me with their permits that we ask to see before guys come on site. Derek said, "Look, I don't have mine on me. I'll go back and get it for you." Adrian ignored me.
PN3011
So Derek went back?---He did.
PN3012
Now, those people that Adrian went to speak to?---Yes.
PN3013
Do you know whether they had arrived at work at the same time as everybody else?---No.
PN3014
You don't know?---I don't know that.
PN3015
I have no further questions.
MR KIMBER: Nothing arising.
<THE WITNESS WITHDREW [2.58PM]
PN3017
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Gooley?
MS GOOLEY: Now, your Honour, there are some documents that I want to tender. I tendered on the last occasion an extract from the CEPU Electrical Trade Union's collective agreements. What I've done here is I've actually had copied the complete document of that and it has at the back of it the signature pages from the relevant parties. You would understand the difficulties that we face now that agreements are lodged with the office that - the wonderful service that used to be provided by the Commission is no longer available to us. So I want to tender that.
EXHIBIT #CEPU5 ETU ENTERPRISE AGREEMENT 2007-2010
MS GOOLEY: I also want to tender the template collective agreement that applies to the contractors for the CFMEU.
EXHIBIT #CFMEU1 TEMPLATE COLLECTIVE AGREEMENT WITH CONTRACTORS DOCUMENT
PN3020
THE SENIOR DEPUTY PRESIDENT: I'm sorry, can I just clarify - sorry.
PN3021
MS GOOLEY: Yes, I'll wear two hats at the moment.
PN3022
THE SENIOR DEPUTY PRESIDENT: Sorry, the second document was the template subcontract. What's the first one, that's the - - -
PN3023
MS GOOLEY: The first one is the ETUs collective agreement, so it equally is a template agreement but at the back of it are the signature pages for the relevant contractors. So you see that it's signed by Atselect Hercks, Stoll Australia, Elacraft, Maxim, so they're the electrical contractors.
PN3024
THE SENIOR DEPUTY PRESIDENT: I see.
PN3025
MS GOOLEY: The next document is in fact the CFMEU's agreement.
PN3026
THE SENIOR DEPUTY PRESIDENT: I'm sorry. I'll mark the CFMEU document CFMEU1 rather than CEPU6.
PN3027
MS GOOLEY: Yes, thank you, and I understand the Bovis Lend Lease Agreement isn't marked in these proceedings because it's a document of this Commission and that's already before you.
PN3028
THE SENIOR DEPUTY PRESIDENT: That's correct.
PN3029
MS GOOLEY: That's the evidence of the CEPU and CFMEU, your Honour.
PN3030
THE SENIOR DEPUTY PRESIDENT: Thank you for that, Ms Gooley. Mr Kimber?
PN3031
MR KIMBER: Your Honour, I should have - I just realised that we also had, just like we had a site plan for the Victoria Harbour precincts, we also have a site plan for the Royal Children's Hospital site. I think that would probably help to understand some of the evidence as well, so might I tender that.
THE SENIOR DEPUTY PRESIDENT: Yes. I'll mark the Royal Children's Hospital site layout plan, BLL14.
EXHIBIT #BLL14 ROYAL CHILDREN'S HOSPITAL SITE LAYOUT PLAN
PN3033
MR KIMBER: Your Honour, this is an application lodged under section 4 of '96 of the Workplace Relations Act for orders stopping industrial action. The matter was lodged with the Commission early last week and on 7 August at 9.26 the Commission made an interim order that became BLL - in fact, the order that has been made, I don't think has been made, but your Honour made an interim order having been satisfied that the applicant had a strongly arguable case that unprotected industrial action was probable and secondly, your Honour was satisfied that there was no public interest reason for refusing to make that interim order.
PN3034
The matter then proceeded to substantive hearing that day and on Friday last week and then was adjourned part heard until today and your Honour has then heard the balance of the evidence. We have provided this morning - the formal final order that's been sought, we've tendered this morning and became BLL6. I must say that at some stage during the course of the afternoon I'll need to revisit that to see whether the evidence that has just been given to the Commission will warrant further amendment to that order, but can I just put that to one side for the moment, but that may need some revisitation as part of the additional evidence.
PN3035
Your Honour, could I take your Honour to the Act under section 496 and perhaps I don't need to labour this because they would be no doubt provisions well known to your Honour, but the important matter that we want to emphasise right at the outset of these submissions is this, that there would appear to be, with great respect to Ms Gooley and Ms Walters, an approach to this matter that has been adopted that would suggest that we're still operating under what was formerly section 127 of the old Act, or this Act insofar as that section bestowed on the Commission a discretion with respect to make an order stopping industrial action.
PN3036
Now, that's front and centre in these proceedings. The Full Federal Court in the TWU matter has confirmed, if it needed confirmation, which it didn't, that that discretion has been swept aside and that the Commission, if it's satisfied as to the prerequisites for the making of an order must make an order. At the interim stage there's a public interest rider on that, but once through the interim stage, then section 496(1) of the Act says:
PN3037
If it appears to the Commission -
PN3038
and for that we read, well, as long as the Commission is satisfied, but:
PN3039
If it appears to the Commission that industrial action by an employee or employees that is not or would not be protected action is happening or is threatening pending or probable or is being organised, the Commission must make an order that the industrial action stop, not occur and not be organised.
PN3040
So there's no question of discretion. So I'll come to the arguments that have been mounted and there are about 10 or 12 that have been advanced, but in reality what they are, are arguments that perhaps have been relevant if there was an appropriate or relevant discretion in the Commission to decline to make an order. That's been swept away. The circumstances in which the Commission's entitled to decline to make an order at this stage are as specified in section 420 of the Act, insofar as the definition of industrial action is qualified, but before I go to that can I say this. If the Commission is satisfied that there is industrial action by an employee or employees, we say there's no doubt about that and no point's been taken that we're not dealing with employees as defined in the Act, and there is no suggestion and no evidence led to suggest that if it be industrial action that it's protected industrial action. So there's no problem with the compliance of that prerequisite, and then when one turns to section 420 the only other way of avoiding an order under section 496 is if the industrial action is as described after (d) in section 420, namely:
PN3041
Industrial action does not include the following, namely action by employees that is authorised or agreed to by the employer of the employees-
PN3042
and of course apropos the evidence that your Honour has just heard from Mr Keeble, there's no suggestion that the employers of the employees that left the site this morning had been authorised by their employers to do so or agreed to by their employers to do so, the union has not called any evidence to that effect, nor even suggested to Mr Keeble that that was the circumstances in which that departure occurred.
PN3043
Then passing over to (f) which deals with by employees, then (g) says:
PN3044
Action by an employee if the action is based on a reasonable concern by the employee about an imminent risk to his or her health -
PN3045
That hasn't been raised as an argument amongst the 10 or 12 we've heard, and indeed, there's not a stick of evidence to suggest that any of the action taken could be based upon any apprehension or reasonable concern about an imminent risk. Indeed, the perversity of this case is that what the company has done here, what BLL has done is obviously - or we say on the evidence clearly designed to assist with the protection of workers' health and safety and yet perversely the union has been opposed to those steps being taken, and we say it albeit on baseless grounds.
PN3046
So the circumstances in which you can avoid an order, once the Industrial Relations establishes having occurred or is probable to occur and/or is being organised, or as I've enunciated, and none of them apply here. So that what that, in this particular case then, where we're at is purely the question as to whether or not the activities have been engaged in constitutes industrial action. If it appears to your Honour that that is so, then your Honour must make an order. The form of the order, as the authorities suggest, the direction about what it should look like, the Full Federal Court has had some fairly firm things to say about the particularity of it and we've endeavoured to accommodate those matters and comply with those directives, but obviously the order is supposed to be fashioned in a way that's designed to be effective at stopping the industrial action found to have occurred or found to be occurring or probable to occur in the near future and we think the order we proposed does that. I'll give your Honour a reference in due course to some authorities also that bear on that that might be of assistance to your Honour.
PN3047
So as I say, without there being any discretion, your Honour's - the reasons I've advanced is down to what we say is one question, as to whether or not there's industrial action that is happening or impending or probable and/or is being organised and we say all of those criteria have been satisfied by the evidence before you and accordingly your Honour has no option to make an order to stop it. I'll come back to address your Honour on the form of the order. Again, and perhaps I don't need to spend too much time on this, but when one looks to section 420, the formulation of what constitutes industrial action, whilst the section has been recently modified or that definition has been recently modified, when one compares it to the earlier definition which was found in section 4 of the Act, I think, one thing is abundantly clear, that to the extent that the definition has been altered, it has only served to broaden the definition of industrial action and certainly rather than narrow it.
PN3048
So much is apparent when one - - -
PN3049
THE SENIOR DEPUTY PRESIDENT: In respect to employees, I think it was narrowed somewhat in respect to employers.
PN3050
MR KIMBER: Narrowed with respect to employers, yes.
PN3051
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3052
MR KIMBER: I think for the purposes of the submission I wanted to make, I was going to take you to French J's decision in CEPU v Lange to make this point and it bears upon the - I think we provided that to your Honour on the - perhaps we didn't. It's reported in a number of places, but including at 86 IR 142. If I didn't hand that up, I apologise, and we can do that now.
PN3053
THE SENIOR DEPUTY PRESIDENT: Yes. I don't believe I have that.
PN3054
MR KIMBER: Whilst that's being done, perhaps if I can just take you back to 420 so I can make the substantive submission about the elements of 420 that we rely upon and then I'll take you to Lange. If you have a look at section 420, the definition of industrial action, we say that - does your Honour have that?
PN3055
THE SENIOR DEPUTY PRESIDENT: I do.
PN3056
MR KIMBER: Yes. We say that in this case the operative provisions are 421(b) and (c). We say that what the evidence reveals here is a ban limitation or restriction on the performance of work by an employee. Just pausing there, we say that because the provision - this particular wording has been interpreted by French, J and later by a Full Bench of the Full Federal Court as extending not just to the performance of work itself, but to the conditions under which that work is performed. There's a broadened view of that expression. Indeed, French J says that really is what makes the distinction between (a) and (b), and (a) is obviously about the manner and conditions or practices with respect that the manner in which you perform your work or practices in relation to the performance of work are such, and his Honour said that (b) is obviously broader than that.
PN3057
It's broader in two respects. Firstly, we say, it's broader in that it picks up a ban limitation or restriction on the performance of work including the conditions under which that work occurs, and secondarily it also extends to the ban limitation or restriction on the acceptance of or offering for work by an employee, and we say that that's also met here in that the evidence reveals that the employees at the concurrence and encouragement of the relevant unions, have put an extra condition on the acceptance of or the offering of themselves for work by the contractors on the sites that are referred to in the order, that being that they will only perform work in circumstances where BLL does not insist that their access to the site be governed by the BG access and safety system.
PN3058
So that's the ban or limitation or restriction they've sought to impose a condition on the acceptance of or offering for work, and it's a ban limitation or restriction on the conditions of the performance of work as properly introduced by BLL as the principle contractor on the site and as we'll show in due course, BLL obviously has the responsibility as the principle contractor for the site, who comes on and the conditions upon which they enter the site. That applies to everybody no matter who it is and it has the right under the - not only does it have responsibility under State legislation Occupational Health & Safety legislation in this regard, but it also has express rights in this regard as enshrined in the various subcontracting agreements that have been made available to your Honour.
PN3059
We're able to take your Honour to the relevant provisions in due course, although it may well be something that I will deal with in reply once I've heard how it's actually put by Ms Gooley and Ms Walters that they say that somehow those contracts limit or restrict BLL's right to impose this condition with respect to access and safety and so I'll deal with that more fully in reply, otherwise it might be an unnecessary expenditure of time. And of course, so we rely on the two elements found in (b) and I'll take you to the authorities bearing on what I've said about that and we rely upon (c) as well because there has been a failure or refusal by employees to attend for work as a consequence of the concerted actions of the unions with their members, employees working on the sites to oppose the introduction of the BG system and there's clear evidence of that failure or refusal to work on a number of different occasions that we've summarised in the schedule.
PN3060
But before I come to the evidence, can I take you to French J's decision, perhaps his Honour's decisions will now have greater potency or be looked at in a different light. I know they were always well regarded, with his Honour recent elevation, it perhaps takes on new significance. Now, his Honour's decision is instructive at a number of levels. Your Honour will no doubt be familiar with this case, CEPU v Commissioner Lange and this is what was otherwise dubbed as the freedom of speech case where there was issue about workers' rights to free speech and to take action in pursuit of their own political beliefs and the question amongst others that his Honour had to consider as to whether or not that was industrial action and, of course, that seems to be directly on point in light of what's happened today.
PN3061
Here we have workers asserting the democratic right to attend this Commission to be involved in litigation that they have an interest in and of course the question that this case bears directly upon whether or not such attendance could nevertheless constitute industrial action if it's otherwise not authorised by the employer, or subject to an agreement with their employer and otherwise seemingly in defiance of industrial prescription about notices to sick leave or the claiming of annual leave or leave without pay, matters that I'm instructed, but I haven't yet set eyes on, I understand that there was a regime that governs all those things, non attendance for work for those reasons, sick leave, agreement with the employer about when you take any annual leave, if that was to be asserted, and even with respect to taking leave without pay.
PN3062
As I understand, there are mechanisms in place that have to be followed and there's no evidence that any proper steps were taken to ensure that this departure from work was authorised or appropriately agreed to. Can I take you to French J's decision in 86 IR at 142 and you will see there, if you go to page 152, you will there see that his Honour sets out what was section 127 of the Act at the time and of course, the point that we seek to make immediately is that whilst this provision has been amended and found its way into section 496, nevertheless the Federal Court's views about the substance of this section 127 apply with equal force because the wording is overwhelmingly the same in relevant respects.
PN3063
The two sub-paragraphs that I've referred to in section 420 about what constitutes industrial action existed previously and they have been the subject of interpretation by the Full Federal Court and by French J. In 127 you will see it opened with these words:
PN3064
If it appears to the Commission that industrial action is happening or is threatened impending or probable in relation to an industrial dispute et cetera -
PN3065
and of course all those words have now been removed, amended in light of the change of the constitutional basis for the power, then these words:
PN3066
The Commission may by order give directions that the industrial action stop or not occur.
PN3067
That's the first point that we wanted to make about how significant the changes is. That discretion has been removed and so no matter how good your arguments you have about the merits or the demerits of the scheme or your concerns about whether it might constitute surveillance or tracking or anything else, as to whether it's consistent or inconsistent with a no extra claims commitment, all of those arguments do not avail the unions in this context because there is no discretion with the claim to make an order of the prerequisite to satisfy and you do not find any of those stated matters now sought to be relied upon by the unions as providing a foundation to escape an order that must otherwise be made.
PN3068
They're just not there and you can't invent them. It seems apparent from the way the Act is now structured the discretion has been taken away from the Commission with respect to the making of orders stopping unprotected industrial action such that the discretion is left with the court at the point of breach. If you establish breach in the Federal Court, then the Federal Court may or may not and has a discretion as to whether or not it issues an injunction. So there is a very clear distinction now and the Commission has no discretion provided the prerequisites are met and arguments that the union have advanced here, if they had any merit at all, one would have thought they might have purchase or be relevant at the next stage if the applicant establishes breach of the interim order or of any order that your Honour may make at the end of these proceedings.
PN3069
So the first point that the discretion has been entirely removed when one compares it to 127, then subparagraph (2) of section 127 said:
PN3070
The Commission may make such an order of its own motion or on the application of -
PN3071
the industrial dispute reference is gone. Then it says here:
PN3072
A person who is directly affected or is likely to be directly affected by the industrial action.
PN3073
Your Honour will note now that that's been broadened insofar as that now an application can be made by a person who is directly or indirectly affected. So it can be broadened, and of course, we say in BLL's case, although relevantly it's not the employer, it is both directly and indirectly affected by the industrial action complained of. It doesn't actually have a dispute with its own employees on the evidence because it's direct employees, all cards have issued, there is no dispute. So it's not the employer of persons who are taking industrial action.
PN3074
So then when you turn over - - -
PN3075
THE SENIOR DEPUTY PRESIDENT: Is there any evidence of direct BLL employees taking industrial action or threatening industrial action?
PN3076
MR KIMBER: No, there isn't, your Honour. The only evidence I think that was given about that in this context - I was wondering whether Mr Keeble said something about it this morning, but I don't even think that he gave any evidence about that. No, I think there's not, your Honour, and indeed, there's - perhaps the inference can be drawn this way. We now note that (1) the ETU somewhat belatedly cranked up a dispute procedure, then the CFMEU even later still, but that's in the context in the disputes panel concerning the contractors. They've not sought to bring Bovis before that panel on the basis of any dispute under the, I think what your Honour referred to as the JDA6. If they were suggesting that they had a dispute directly with Bovis, vis-à-vis its own direct employees one would have thought that would have happened.
PN3077
THE SENIOR DEPUTY PRESIDENT: Yes. I'm just wondering why direct BLL employees are included within the scope of the orders sought.
PN3078
MR KIMBER: That might be a flaw in my drafting, but certainly in light of the evidence one wouldn't be entitled to an order against those employees unless there was some evidence to support it. Your Honour, might I come back to that. I hear what your Honour says.
PN3079
THE SENIOR DEPUTY PRESIDENT: Yes, well, when you do it's 1(d)(ii) of the order, as I recall.
PN3080
MR KIMBER: Thank you, your Honour. I'll ask Mr De Boos to make a note of that so I can attend to it. If you turn over in his Honour's judgment, section 127 has been broadened, no discretion and that the parties were entitled to complain about industrial action has been broadened. If you turn over to 153 you can then see what happened with the definition of industrial action that you now find in section 420 that used to be in section 4 and what I did was merely to cross out, and it is all by way of deletion, but if your Honour goes to little (a), you go to the fourth line after the words, "the performance of work", you strike out the words after "work" through to the end of (a).
PN3081
You then go to (b) and you go to the second line, "on acceptance of or offering for work", strike out the balance of (b), that's what was deleted. That's 421(b). The (a) definition is now section 421(a). If you go to (c), that's to be deleted, and (d) you delete the words in the third line after the word "work", delete to the end of (iv) that says the word "territory". Strike all that out. That's 421(c) and of course there is section 421(d) was added and that deals with lockouts. So, your Honour, in terms of being able to rely upon Federal Court authority as to the meanings of these expressions there's every reason why that authority applies with each, of course, because the substantive wording that we rely upon is no different from what it was in section 127 and of course you see now the exclusions are down the bottom there at page 153 of the judgment in the CEPU case. I don't think they've changed relevantly.
PN3082
Then of course if you go to 154 at the top you will see his Honour posed the question, "What limits are there derived from the express terms of section 127 upon the kind of conduct to which it may apply?" Then if you go down to the bottom, his Honour then turns to that issue first, and at about point 8 on the page his Honour says this:
PN3083
The conduct which may be stopped or prevented by an order under the section is limited to that which affects the performance, affects the acceptance of or the offering for work. It may extend to strikes, stop work meetings, work to rule or go slow practices. It is not confined to stoppages.
PN3084
Then interestingly enough his Honour then said of course:
PN3085
The class of conduct to which the section applies is further narrowed by the requirement that is industrial action that relates to an industrial dispute or that the work that has to be regulated by an award or certified agreement.
PN3086
Well, of course, that narrowing has now been removed, of course, so it's been broadened again. Similarly so at the top of page 155 his Honour said this in the first paragraph:
PN3087
Notwithstanding these limitations it's been said, and in my opinion correctly, that for the purpose of section 127 industrial action is widely defined.
PN3088
And of course that will support what we go on to show has been said about it. His Honour said this, after reference to authority:
PN3089
It extends to conduct by way of communication. While paragraph (a) of the definition relates to performance of work, paragraph (b) is more broadly expressed. It refers to a ban, limitation or restriction on the performance of work or on the acceptance of or offering for work. And in the central meaning of the term ban in the industrial - as in its ordinary use, it is to prohibit or interdict. Communication between persons or an organization and persons is essential to a ban and while the notion of limitation or restriction may have a meaning related to the manner of actual performance of work, that meaning is picked up in (a) of the definition. Under para (b) it extends to the communication of a limitation or restriction. Communication picked up under (b) and (c) must no doubt purport to be at least ..... if not authoritative and binding upon the person or persons to whom they are directed.
PN3090
So what we say on the evidence to which we'll come is there has been a higher level of communication between the union and the workers, encouraging them and persuading - encourage them to resist the BG system by various means including stopping work, not attending work, refusing to get the cards, refusing to use the cards et cetera.
PN3091
Now, his Honour went on to say this:
PN3092
In the ordinary course such communication will be verbal, whether oral, written or in electronic form, being intended to effect or affecting the performance of work. It is industrial action because of its instrumental character. Notwithstanding that it is communication if falls within the term of the definition. So communication can be industrial action.
PN3093
His Honour says:
PN3094
Industrial action can be verbal or non verbal, can be communication in a wider sense. The withdrawal of labour because of industrial dispute may be seen as a signal from employee to employer of a grievance or as underlying from the employee's perspective the seriousness of a grievance which has been communicated verbally. To say that the industrial action sends a signal to the employer or communicates in this sense is not to take it out on the class of conduct to which section 127 applies.
PN3095
Now, we say that this applies with complete to the facts and evidence before the Commission now. Down the bottom of page 155 in the last paragraph, his Honour said:
PN3096
There is no doubt a spectrum of conduct within the class of industrial action which ranges from that which is primarily disruptive and designed to impose sanctions on the employer in relation to a grievance, to that which is primarily intended to send a signal or make a communication whether about a grievance or some collateral matter and involve little or no disruption or inconvenience.
PN3097
Then his Honour turned his mind to the question of picketing, which was part of the industrial action that was there under review and his Honour, in the middle of that page - or before I go to the middle of the page, will you just note in the first paragraph under the heading "Picketing":
PN3098
The facts in this case was that the picketing activity in the fifth line in the first paragraph under that heading on 156, it did not prevent entry and exited staff of the power station who wanted to cross it.
PN3099
So there an evidentiary issue here which his Honour picks up again in the last paragraph of this section:
PN3100
The particular picket line did not prevent entry to the power station premises, nor was there evidence to suggest that it deterred or discouraged entry.
PN3101
And we contrast that to the position here on the strength of Mr Keeble's evidence this morning. There was a deliberate line established to prevent the entry of the transport trucks and we say that falls within the definition.
PN3102
His Honour draws a distinction between picket lines that are merely designed to communicate information and those that seek to prevent, deter or discourage employees from attending on their employer's premises and from carrying out their work and his Honour makes reference to that in the middle of the page on page 156.
PN3103
Now, it is true that with respect to Mr Keeble's evidence today it would not be correct to suggest that the linking of arms by 10 people in front of the strike had the impact of the consequence of discouraging employees from the projects to enter the site. There's no evidence that that was so. If anything, they were heading in the other direction as a consequence of the union's activities.
PN3104
Over the page, just finally we note that his Honour said this at 157, about a third down the page after referring to Coal & Allied, his Honour said this:
PN3105
The Commission accepted in my view correctly in Coal & Allied that action to which section 127 applies includes action taken for economic or social campaigns or to secure union organisational objectives.
PN3106
Now, what's abundantly clear from the evidence here is the union or at least the Victorian branch of these unions have certainly adopted an organisational objective of scuttling the Blue Glue system and everything that's been the subject of evidence here can be seen as designed to bring about or to achieve that objective. It has been, as his Honour says at 158 if you will turn over in the middle of the page:
PN3107
The activity has the instrumental character -
PN3108
right in the middle of the page:
PN3109
the instrumental character of effecting or being intended to effect in some way the performance of work.
PN3110
And here it's been the imposition of a condition that says, "We will not willingly perform work as we used to do insofar as you insist that there'll be an additional condition imposed upon our entry to the site." We say that constitutes industrial action.
PN3111
The matter was revisited in the Full Federal Court in the CFMEU matter that's reported in 84 IR at 314. This was a lengthy decision because it was the decision that ultimately went to the High Court as to the nature of appeal before the Full Federal Commission. So what we've done with a view to not chopping down all the trees or too many trees, I've only given you the relevant extract. Of course, the decision is about 80 or 90 pages long. But the question of the definition of industrial action was revisited in this case and can I take you to pages 324 to 326 of 84 IR where that matter was visited.
PN3112
You will see, if you go to the bottom of page 324, you will see reference to the relevance of picketing in deciding whether to terminate a bargaining period. Your Honour is no doubt familiar with this decision and Boulton J's decision in the first instance that was then subject to much debate thereafter. The Full Court then set out the definition of industrial action that I've just referred you to which has now been modified, and then down the bottom of 325 with reference to:
PN3113
The only basis on which picketing might be comprehended is if it's conduct of the type identified in paragraph (c) of the definition, that is, if it is a restriction on the performance of work or on the acceptance of or offering for work, the word picketing may simply describe a lawful assembly outside a workplace or elsewhere protesting about and drawing attention to conditions of employment:
PN3114
- in the workplace, the work ‘picketing’ may also describe an assembly which is engaging in protest of this type but also prevents or impedes access into and out of the workplace.
PN3115
Then there the Full Court said:
PN3116
Even if used to describe the latter situation it is unlikely that picketing is conduct comprehended by the second expression restriction on the performance of work as it appears in paragraph (c). Having regard to the context in which that expression appears, it is more likely to relate to restrictions imposed by an employee or group of employees on the work they do so as to limit the scope of that work.
PN3117
Then the Full Court adds these words:
PN3118
So as to limit the scope of that work or the time or the circumstances in which it is done.
PN3119
And that’s the passage we rely upon that I adverted to some five minutes ago. It is designed to limit the circumstances in which the work is done, namely, only in circumstances where BLL gives up on seeking to introduce a new system to regulate, amongst other things, access and egress from the site. Then of course the Full Court went on:
PN3120
While the expression ‘a restriction on acceptance of or offering for work in para (c) might comprehend the getting of the latter type which prevents employees who were continuing to work and attending the workplace, it is unlikely to have such a wide meaning if the other elements in (c) relate to circumstances of the type just discussed. It is likely that para (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it.
PN3121
That’s the critical expression that we rely upon that we say founds the industrial action in this case.
PN3122
Now, as I understand it, that view has not been departed from by later Full Court authority and indeed I think it was expressly referred to with approval in the Davids Distribution [1999] FCA 1108; [1999] 165 ALR 550 which I don’t open at this point in time. As I say, I don’t pause to deal with it now.
PN3123
In terms of authority, whilst I was going to - I will take you to some authorities under section 420, I think at this stage before I move to the question of the evidence it might be useful if I take you briefly to the Full Federal Court decision in the TWU case; and I’m sure that was handed up on the last occasion.
PN3124
THE SENIOR DEPUTY PRESIDENT: Yes, it was.
PN3125
MR KIMBER: Yes, the union handed that up. It’s reported in a number of places but I think your Honour has [2008] FCAFC 26; 166 FCR 108.
PN3126
THE SENIOR DEPUTY PRESIDENT: No, I actually have the internet version.
PN3127
MR KIMBER: I think it’s numbered paragraphs so I think we might be in luck.
PN3128
THE SENIOR DEPUTY PRESIDENT: It is. I think the numbering of paragraphs was the best thing ever done with - - -
PN3129
MR KIMBER: There’s absolutely no doubt about that. I seem to make more mistakes in terms of what versions I take to Court. I more often make a mistake than get it right. I just wanted to - as I say, this has been tilled over and referred to extensively, not only in these proceedings but in a number of other cases since. And your Honour is no doubt familiar with it but can I just remind you of a number of features of it briefly before I proceed.
PN3130
If you go to paragraph 12 of that judgment where there’s reference to a comparison of the legislation - and that’s the exercise I have briefly taken you to - there’s reference there to the explanatory memorandum of the bill. After the extract from that memorandum the Court said:
PN3131
There is no doubt that the goal of strengthening and enhancing the provisions of the former section 127 has been met in some respects. Most importantly, the Commission now has a mandatory duty instead of a discretionary power to make orders. The range of orders is broadened -
PN3132
This is three lines down:
PN3133
- to include orders that industrial action not be organised.
PN3134
In fact, I missed that before. I should have. That was expressly added. Then if you would turn over to paragraph 16, again reference to the fact that there’s no discretion, in the middle of that paragraph, about 10 lines down:
PN3135
It is plain, however, that if the specified circumstances appear to the Commission to be present, no discretion at all as to whether to make an order answering the specified description must be made.
PN3136
About eight lines from the end of that paragraph the Court said:
PN3137
An order must be made. It must be an order that is designed to be effective to stop the industrial action to ensure that the industrial action not occur or to ensure that the industrial action not be organised as the case may be. The choice of the target of the order will be dictated by the requirement that the order be made and that it achieve one or more of these purposes, not by the exercise of any discretion on the part of the Commission. The approach to construction of section 496(1), as if it involved the exercise of raw discretions, is erroneous.
PN3138
And we draw your attention to that because we think that, with respect, that’s the problem that the unions have fallen into here. They have sought to manufacture a discretion that doesn’t exist.
PN3139
Then if you turn over to - if you then go to paragraph 18, even more so, the Full Court again said:
PN3140
The mandatory nature of the section is the most important factor that discusses its construction.
PN3141
Then at the end of paragraph 18:
PN3142
By contrast, perfect sense can be made of the provision if it is accepted that an order that industrial action stop must be made if it appears to the Commission that it is happening. An order that the industrial action not occur must be made if it appears to the Court that it is threatened, impending or probable and an order that the industrial action not be organised must be made if it appears to the Commission that it is being organised.
PN3143
The point that’s being stressed here, and we with respect emphasise this to your Honour, is that there needs to be findings to support any particular order. So if there’s going to be an order preventing the organising of industrial action, then the Commission needs to make a finding that such organising has occurred or is occurring; and similarly so with respect to if an order is going to prevent industrial action from happening. Then there needs to be an active and express finding that it is probable that such action will take place.
PN3144
Paragraph 22, would you note that. That deals with the question of organising, in particular, the new provision. It says:
PN3145
Manifestly the kind of industrial action to which section 496(1) is directed is not industrial action that a union can engage in by itself. The subsection is directed to industrial action by an employee or employees or by an employer. Section 496(1) also does not say anything at the identity of any person or entity against whom or which the order required must be made. It directs itself to the nature of the orders rather than to the targets of them. It is easy to see how an order that industrial action not be organised can be made against a union if it is that union that is organising the industrial action. It is more difficult to see how an order can be made against a union in the absence of a finding that the industrial action is being organised.
PN3146
And of course, that’s the point we make that if your Honour is satisfied that the union involved here have been organising the relevant industrial action, an active finding to that effect needs to be made to support the order of the proceeding.
PN3147
Then I pass over the actively engaged sections. In passing, will your Honour just note paragraph 44 which is the passage referred to relied upon by Ms Walters the other day about an opportunity to provide evidence and make submissions. Whilst we didn’t share her - with respect to her view about what opportunity means in that context, whether it’s full and unfettered, nevertheless that became academic because ultimately there was no further appearance sought to be entered for any purpose so your Honour didn’t have to grapple with the debate that was otherwise going to occur in that regard. And of course there has been, apart from documentary material, nobody has sought to lead evidence, no individual and neither have the organisations, has sought to lead any oral evidence to rebut the evidence called by the applicant or by the ABCC.
PN3148
Then again, to emphasise the point about the need for refining support, the order, if you go to paragraph 50, in the tail end of it, the last eight lines of paragraph 50, the Full Court said:
PN3149
In the absence of any finding that the TWU in New South Wales was itself engaged in anything that fell within the definition of industrial action and that appeared to the Commission to be happening, or any finding that the TWU was directly or indirectly a party to or concerned in conduct by another person or other persons that amounted to industrial action that appeared to the Commission to be happening, an order against TWU in New South Wales could not have been justified.
PN3150
We say, of course, the opposite is here. There is obviously an abundance of evidence to support the union’s involvement and active participation in the industrial action complained of. So, for now in terms of authorities they’re the only matters that we feel that it is appropriate and necessary to take your Honour to. As I say, I will come back to some single instance decisions that provide some guidance on particular matters in a little while.
PN3151
Now, I have already made reference today in these submissions to your Honour’s interim order in this matter and your Honour’s understandably brief reasons in support of making that order at the time. But your Honour referred to their being a strongly arguable case that industrial action may have been engaged in, such that an order under 496 needed to be made on an interim basis.
PN3152
The importance of that conclusion is that the four affidavits that your Honour then had before you that provided the foundation for that conclusion as to strongly arguable case are still before you now and they stand relevantly unchallenged. And I say “relevantly” - insofar as those deponents on their oath gave evidence of the industrial action complained of, the unions in their cross-examination did not seek to challenge those factual matters or, if so, did so only in a very minor and, with respect to them, ineffectual way and only with some particulars about one particular occasions, as I recall it.
PN3153
That evidence, that sworn evidence, stands relevantly unchallenged and undoubtedly uncontradicted and your Honour wouldn’t have any hesitation in accepting it as reliable evidence. Your Honour saw witnesses; they were not undermined in cross-examination and indeed, if anything, with respect, their evidence had more potency at the end of the cross-examination than it did at the start.
PN3154
In addition to that fact, which is significant, there has been more evidence advanced in these proceedings beyond those affidavits, not only that of Mr Plumber from Queensland that certainly support the determination of these unions to undermine the BG system, apart from other matters Mr Plumber’s evidence makes it abundantly clear that when things were all quiet on the western front and the BG system was operating without any difficulty, Victorian officials from the unions now before the Commission sought to upset the apple cart and stir up trouble, which they have succeeded in doing at the Robina site and have now engaged in card confiscation of the workers on site with a view to undermining the system.
PN3155
That in itself is very potent evidence to support the likelihood that behaviour that’s occurred in Victoria at the relevant sites the subject of the order is going to continue or reoccur such that to support an argument of impending or probable - especially in light of the evidence that your Honour has that three of the sites that turnstiles have been free wheeling, or free spinning I think the expression is, but there is an intention to make that system operative within the next week. It is odds on, we say, on the evidence that once that system is made active at those sites that the behaviour of the unions and in concert with a number of the employees suggests that it is overwhelmingly likely that there will be trouble once that system is put into play. So, as we say, your Honour has a very significant body of reliable evidence that would support the conclusion of industrial action.
PN3156
In that regard, and in light of the fact that it’s been relevantly unchallenged and certainly uncontradicted, we have taken the, hopefully, helpful step of reducing the evidence to support the orders that we seek to writing and perhaps if I could hand up that schedule that refers to the evidence.
PN3157
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3158
MR KIMBER: Does your Honour have a practice of having two copies of these things or is one sufficient?
THE SENIOR DEPUTY PRESIDENT: One is sufficient for my purposes.
EXHIBIT #BLL15 SCHEDULE REFERRING TO EVIDENCE TO SUPPORT ORDERS SOUGHT
PN3160
MR KIMBER: Your Honour can see from a perusal of BLL15, which I’ll take you to briefly, that paragraph 1 identifies the evidence that I just referred to by the name of the deponent and by exhibit number. It also picks up Mr Plumber - your Honour will not that Mr Plummer’s evidence is BLL10, if that could be added to (e). Then would your Honour also note there that we also rely on Mr Cruze’s evidence that I think became Exhibit ABCC1.
PN3161
If your Honour will note that, we rely on his evidence which is entirely corroborative of the evidence called by the applicant with respect to the events of 5 August and was not undermined in cross-examination. Indeed, with respect, his evidence was somewhat enhanced in his elucidation of in cross-examination. He gave very particular and impressive evidence about what he observed and photographed on that morning.
PN3162
We have then detailed into subcategories the evidence - and you can see there that the first proposition that we have advanced, and it’s reflected in the final order that we seek - failing or refusing to obtain their blue cards from the designated places on the projects where those cards are issued. And we make reference to the various dates upon which events occurred that would support a conclusion of failing or refusing to obtain their cards, 23 May, 18 July and 4 August.
PN3163
Can I just remind you, and I apologise for not having done it sooner, that under section 496, industrial action also picks up a course of conduct - it’s 496(2). So your Honour is entitled to link these things together. Some matters might not be regarded on their own as constituting industrial action but as a course of conduct, indeed it’s not in - it must be in 420 rather than in 496. Yes - in 420(2), it provides this:
PN3164
For the purposes of this Act -
PN3165
and then subparagraph (b):
PN3166
reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
PN3167
So your Honour is entitled to regard these things as a job lot as a course of conduct and we rely upon that provision.
PN3168
So the first one is failing or refusing and there’s the evidence that stands, we say, unchallenged and uncontradicted; and/or (b):
PN3169
Indicating a non-preparedness to use the BG cards when the system started to operate on 8 August.
PN3170
Your Honour, that wording, as your Honour will appreciate, was in our original application for interim order which your Honour didn’t accede to and we’d accepted that. We haven’t sought to reintroduce that expression, “non-preparedness to use the cards”, but as I mentioned to you this morning in the form of order we seek in BLL6, we have introduced that in in a new clause 2(2)(ii), failing or refusing to use the cards issued to them. This material would support the making of such an order.
PN3171
So, again, the dates and the evidence as to what occurred on those dates is then set out in little (b) and reference to the evidence by paragraph number. As I say, you won’t find any references to the cross-examination because there wasn’t any with respect to this evidence. This wasn’t the tack that was taken by the unions, a matter to which I’ll come shortly. Then similarly so with respect to surrendering the cards - again, we have - your Honour deleted the reference to surrendering when your Honour made the interim order and we don’t seek to re-agitate the inclusion of that. The reality is that this behaviour of the employees in conjunction with the unions in question constitutes a failure or a refusal to use the card system in spite of the fact that BLL has had the obvious right to introduce that condition and BLL is undoubtedly directly and indirectly affected by that industrial action.
PN3172
So the evidence of surrendering, which is a particular of failing or refusing to use the cards, if you like, is then set out in subparagraph (c) and the escalation of the dispute and hence supporting a view about probability is underscored by Mr Plumber’s evidence this evidence that, again, stood relevantly unchallenged. He was asked a couple of relatively innocuous questions about the system itself but there was no contest about whether or not the Victorian branches of the CFMEU had approached the - had sought to destabilise the operation of the BG system at Robina on the grounds of the same basis arguments that they had been mounting in Victoria and so it seems with some effect in that they have confiscated cards and hence sought to undermine the operation of the system.
PN3173
Then at little (d):
PN3174
Failing or refusing to attend work in protest over the decision to introduce the card system.
PN3175
There is reference there to the following dates, and the evidence of that, again it stands, we say, relevantly unchallenged or uncontradicted. And then I think as to today’s evidence from Mr Keeble we would ask your Honour to add that. So as at today’s date, which is 14 August, we say that the behaviour of the employees in conjunction with the union today is yet further evidence of a refusal to attend work in protest over the BLL’s decision to introduce the BG card system dressed up as the exercise of a democratic right to come to Court. But the reality is they’re here to support what they say is their case against the Blue Glue system and we say it’s to be regarded as part of that protest.
PN3176
On no view of the evidence was that departure from work this morning authorised on the evidence. If it was, one would have thought the union might have said: look, all these blokes have had approval. They lined it up with their employers. They either took annual leave on notice. They either notified in of sick leave or they took leave without pay in accordance with the usual rules. There has been no attempt to try to suggest that it was authorised or agreed to by the employers and accordingly it’s contrary to all the established prescription and unprotected industrial action.
PN3177
So we have set out there about the failure or refusing to work in protest. Again, as I said, in terms of the order, the surrendering or confiscation of the card evidence support to the finding in - the definition of “industrial action” that was referred to in BLL6(2)(a)(ii). So your Honour can see then the conclusion that we put in paragraph 3:
PN3178
The behaviour described in (2)(a) to (d) above constitutes industrial action within the meaning of section 420 and is industrial action in breach of 496.
PN3179
Then we turn to evidence of the organisations themselves, which undoubtedly could be the subject of an order on the basis of the authorities that I have taken you to. What we say is that this evidence undoubtedly demonstrates a course of conduct designed to scuttle the introduction of the BG system. In terms of - and I won’t bother to read all that evidence. It’s very clear and the evidentiary references you will find on page 6 there set out.
PN3180
But by reference to authority - and perhaps I won’t open it but give you these references that - in DP World Australia v MUA [2007] AIRC 646, which is PR977852. In fact, we do have copies so I’ll hand them up but I won’t take you to them but it might be of assistance to your Honour and to the parties if I do this now. In the interests of time I won’t open it but that’s a decision of Richards SDP on 3 August 2007. I direct your attention to paragraphs 45 to 48 where his Honour referred to a pattern of collective conduct and a collective strategy and asked - and considered whether there was a strong interconnection between the industrial action by the employees and the unions to warrant an order being made against the unions.
PN3181
I refer you to 45 to 48 and paragraph 65 but I won’t pause to read it. I think, as it turns out in that case, you may have actually declined to make an order against the union. I might be getting confused. I can’t recall what the outcome is but nevertheless his Honour asked the question about the - - -
PN3182
THE SENIOR DEPUTY PRESIDENT: I think an order was made but not against the MUA.
PN3183
MR KIMBER: Yes. But nevertheless we thought it was helpful to look at the issue of strong interconnection, the relationship between the industrial action by the employees and the conduct of the union and we say in this case on wouldn’t hesitate to conclude there was that strong interconnection to support the making of an order.
PN3184
The only other matter - whilst he referred to strong - the idea of whether there was a sufficiently strong interconnection on the facts before him he wasn’t satisfied that the union were sufficiently in the frame. We contrast that for the position here. The only other thing, whilst - so that I don’t revisit it - that’s notable in that case, his Honour also considered the issue of the duration of an order under section 496, and if you note paragraph 68, his Honour said that, in approaching the question of the duration of an order, he approached by reference to what he considered was “the time needed for the conduct to resume a regular course”, was the expression that he used.
PN3185
Now, we have, in the form of order that we’ve handed up this morning, suggested that 90 days might be appropriate. This isn’t a case where you can say: well, it’s really been a little storm in a teacup. They did the wrong thing and maybe an order that orps for a weekly or a couple of week or a couple of weeks would do. This has been a concerted and escalating campaign as today’s evidence highlighter, as Mr Plumber’s evidence displays and that we respectfully suggest that an order for 90 days duration would be more likely to be appropriate to stop the industrial action complained of, certainly not anything shorter than that.
PN3186
If you turn back to the schedule of evidence, page 6, down the bottom of the page - if you go back to 4, the first subcategory of industrial action by the union was organising, directing and encouraging the industrial action described in 2 above. And we’ve adverted to how that’s demonstrated and was organising the industrial action described in 2 above. And we’ve adverted to how that’s demonstrated. Now when you go to page 6 down the bottom, subparagraph (b):
PN3187
Preventing the employees from obtaining their BG cards by obstructing their entry into designated places on the project where those cards are issued.
PN3188
I have already taken you to French J’s decision in the CEPU case about obstruction and that constituting industrial action. We say that the position must be a fortiori if that obstruction occurred on site as opposed to off site. I know that the traditional notion of picketing is offsite but one would have thought if union officials come on site, especially as here where it appears to be in breach of the right of entry rules, in any event, and then seek to obstruct employees from getting their cards. How that wouldn’t be industrial action is very difficult to fathom.
PN3189
And of course, I referred you to 86 IR 142 and at 156 in French J’s decision when he talked about obstruction, albeit in the context of picketing off site but we say it must be a fortiori in this context, and the same applies, if you turn over to page 7 of the schedule of evidence confiscating BG guards from project employees and we have given the evidence there as to where that occurred including Mr Plumber’s unchallenged evidence this morning about that. But all of that is particularity, particulars of a course of conduct designed to scuttle the new safety system. And of course we say, therefore, there is a basis for the conclusion in paragraph 5. Those findings would support the orders that we propose.
PN3190
Now, as I say, the form of order that we now seek is in BLL6 and, as I say, I must confess that I haven’t turned my mind on whether or not it requires any additional amendment in light of this morning’s evidence if perhaps I could be heard on this later. It may not. We say that the orders that we proposed have the rational and logical tendency to stop or prevent the industrial action complained of and its organisation. That expression, “irrational and logical tendency to stop or prevent the industrial action complained of and its organisation.
PN3191
That expression, “a rational and logical tendency to stop or prevent the industrial action and its organisation from occurring emanates from the Full Bench of the Australian Industrial Relations Commission in the TWU case. Can I just give you a reference to it? It’s and its organisation from occurring emanates Commission to it. It’s 154 IR 256 at paragraph 9. Now, as I read it, I don’t think that particular approach by the Full Bench of the Commission was criticised by the Full Federal Court. It was otherwise strongly criticised but not in that respect and we would say not your Honour is entitled to adopt that approach as guided by the Full Bench that the order, if it has a rational and logical tendency to stop or prevent industrial action in its organisation and we say that BLL6 meets with that standard, or if you like- that principle.
PN3192
Now, can I just say before I come to the arguments that have been advanced and I am going to deal with them briefly for the reasons that I have already referred to about them being misdirected, with respect, because they seem to move on the premise that there is some underlying or over-arching discretion.
PN3193
THE SENIOR DEPUTY PRESIDENT: I somehow doubt whether Ms Gooley or Ms Walters will argue that proposition, so you might wait for a reply before dealing with that proposition.
PN3194
MR KIMBER: Indeed, that is true, but I am struggling to characterise what has been happening in this case in light of what Mr Green said this morning with respect to it and the narrowness of the issue before the Commission. At the end of the day, the Commission will not be assisted by arguments about the merit or demerit of the BG system because such considerations don't bear upon the obligation, the mandatory obligation on the Commission to make an order if the prerequisites are met, but can I say something about the probability?
PN3195
We've focused a lot on the probability of industrial action and indicated why there is every reason to believe it's going to get worse, reoccur, et cetera, and could I just direct your attention again, we'll hand it up, but I won't take you to it, in a decision of Deputy President McCarthy in Kaefer, K-a-e-f-e-r, Integrated Services, 9 May 2008, paragraphs 31 to 44 generally, I will just give you that general direction to that decision. The Deputy President referred to the distinction between the probability versus the real chance or possibility and, with respect, that would appear to be an appropriate distinction, but we would say there's no doubt about probability on the evidence here that it would appear to your Honour to use the words of the text, that it's probable that there will be industrial action in connection with this particular matter.
PN3196
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3197
MR KIMBER: The other aspect of Kaefer that I will refer to now, but simply because I've referred you to it and I am sorry if I didn't give a reference, it's (2008) AIRC 412, a decision of 9 May 2008, PR981696 and we rely on 31 to 44, paragraphs 31 to 44. The Deputy President otherwise dealt with the issue of available dispute resolution proceedings and the non-use of those procedures by the unions or the employees involved to reach the conclusion that there is no basis for real confidence that those procedures would be used in the future as opposed to continuing to resort when it suits the employees and/or the unions to take industrial action and we say the same position is really abundantly clear here.
PN3198
Whilst the unions could have activated dispute resolution procedures under the relevant industrial prescriptions either before this Commission or before the state disputes board a lot earlier, obviously we're aware of them at all material times, they elected to engage in industrial action instead and, indeed, only belatedly approached the state disputes board on 7 August I think it was, the very day that the matter was proceeding before your Honour.
PN3199
It only demonstrates that the with respect seemingly non-genuine use of that almost seems like a device to try to suggest that there is a better way of doing these things, rather than these proceedings, but, of course, what this Act is designed to do is to convince employees and their unions that these dispute resolution mechanisms are there for a reason and you use those as the first approach. You don't resort to industrial action and then belatedly pick up dispute resolution when it's opportunistically or strategically seems to be helpful and that's what Deputy President McCarthy was addressing in the Kaefer decision and we commend that to you.
PN3200
Similarly so to the same effect and as I say and whilst I am dealing with authorities, could I hand you up a copy of the decision of Qantas v The National Union of Workers and the ASU (2007) AIRC 167, a decision of Commissioner Thatcher of 5 March 2007 and again that's a case in which Commissioner Thatcher was critical and took into account the employees and the unions' decision to resort to industrial action rather than alternatively go via the industrial dispute resolution procedure that was specified in the relevant instruments, so it's a matter that the Commission has taken into account when assessing probability going forward.
PN3201
If you had a one off stoppage and soon thereafter the dispute resolution procedure was activated and it worked, then perhaps that would give you some cause for pause about probability of future industrial action. That is not this case, the opposite is true, that your Honour wouldn't have any confidence that that is going to be the approach going forward. Today's events at the ANZ site and Mr Plumber's evidence is only further confirmation of the undoubted propensity and preparedness and preference to take industrial action rather than to follow the rules.
PN3202
So they are the - I am sorry if I have sort of rushed through that as quickly as I can. Can I commend the decision of Commissioner Thatcher to you more generally? There's many passages in there that I think would assist your Honour and reference to relevant authority governing the approach to these matters that we would respectfully endorse and, indeed, I think that was a case where an amenities room was closed because it involved the workers having to cross the tarmac at the airport and there was a safety concern about whether that should happen and there was industrial action about the decision by the employer to close an amenities block on safety grounds, so in one sense it was a little closer than the other authorities to the sort of issue that your Honour has had before you in these proceedings.
PN3203
Could I take you then to - just pausing there, we say that on the basis of those submissions alone that your Honour really is on a position where with respect you must make an order and we say an appropriate order to make would be in the form of BLL6. We respectfully submit that the arguments that have been advanced against that conclusion really are misconceived or have no weight. I will deal with it in summary and perhaps regrettably I will need to deal with it more fulsomely in reply, but can I just indicate what our position is so that the unions aren't left without an opportunity to comment on what we say about their arguments, if I save it up for reply.
PN3204
We have already emphasised that there really is no dispute about the industrial action facts for the reasons that I have advanced. They haven't come and said, well, look, that didn't happen, this didn't occur, although it's true Ms Gooley has made some reference to the ETUs involvement I think on the morning of 5 August, but one swallow won't make a summer in light of the other evidence supporting the probability conclusion.
PN3205
The propositions appear to be this and maybe I have missed some, but I hope not. The first proposition was that there was no relevant consultation. We say on the evidence that was clearly wrong and that there is clear evidence of written notifications to the unions and to the contractors. If your Honour looks to BLL1 which is Mr Broadhead's affidavit, annexures 6 and 7, the letters to the contractors and the letters to Mr Kingham, there is reference in the affidavits to the consultative meetings last year, the unions have been on notice for probably a year about what was happening, what is likely to happen down here and, of course, they had the experience in the ACT, New South Wales and Queensland in more recent times.
PN3206
There's no doubt about the level of knowledge and their involvement in what has been happening, but as I said before, even if be said that it should have been better or should have occurred at a higher level, that won't avail the unions here because your Honour doesn't have any discretion. A lack of consultation will not provide a foundation for declining to make the order. Secondly and probably, it seems to have perhaps been the one that's surfaced as the critical submission that's been advanced, that BLL had no right to change the conditions of access to the site.
PN3207
There seems to be an argument that somehow this is hooked to the industrial prescription. Even though BLL relevantly for these proceedings is not an employer, it's not in dispute with its employees. It's here because it operates these sites in accordance with obviously its agreement with its client, but also pursuant to contracts entered into with the subcontractors that your Honour has heard so much about. We say that those contractual agreements make it abundantly clear that it has the right and, indeed, the obligation to properly control access and egress from its building sites.
PN3208
In this regard, we tendered this morning the manual from the WorkSafe Authority and could I assist you this way as quickly as I can, but if you just go to BLL11 quickly and I won't read it, but I will just direct your attention to the bits we rely upon. Now, this is a handbook issued by WorkSafe Victoria that deals with - a handbook dealing with the construction regulations, as to how it should operate in practice, how those regulations should operate on the ground.
PN3209
So much is apparent from the introductory section on page 1 of the document which I direct your attention to. Apart from page 1, would you note pages 7, 8, 9 and 10 under the heading duties of principal contractors, it couldn't be clearer what the obligations are of the principal contractor on building sites like the ones that are before the Commission today in these proceedings and they've got nothing to do with relevant industrial prescription between employers and employees.
PN3210
This stems from the legislation and the obligations on the principal contractor, so I direct your attention to the whole of that, the duties of the principal contractor, then if you would also direct your attention to page 20 under the heading training where it makes reference to the obligation and the need for instruction, induction training and site induction. Pages 20 to 22 and in particular on 22 where there is a discussion on site inductions and the obligations on the principal contractors in this regard, so we say that reading of those passages from the WorkSafe Authority handbook serves to make the point that one doesn't need to get lost in the bowels of enterprise agreements and, indeed, the bowels of those agreements are not relevant to the disposition of this matter at all for the reasons we've advanced, but certainly one can see where the right and the obligation to control access and egress arises from.
PN3211
Secondarily, we tendered the subcontractor contracts. I won't go to them now, but we're in a position in reply if need be to indicate confirmation of those rights of the principal contractor to direct the contractors in relevant respects in this regard and, indeed, if contractors don't respond to the directions of the principal contractor, it can constitute a breach such as to bring about a termination of the subcontractors' arrangement.
PN3212
Thirdly, can I just remind the Commission about Mr Craig Peterson's evidence, that he made it abundantly clear in cross-examination that changing the conditions of access to the site is something that occurs all the time in any event, not hooked to the blue glue system and that he was really saying that it so much was de rigeur to suggest that they open gates, close gates and direct people to enter their site by different ways and, of course, that is exactly the point.
PN3213
No individual coming to the site has a right to access the site in a particular way. In spite of Ms Gooley having made that reference several times, there is no such right and that right, that whole question of access is in the hands of the principal contractor or the operator of the site for the reasons I've mentioned. The third proposition has been advanced that the suggested change in condition from a manual gate security guard system to an automated turnstile swipe card system is in breach of the no extra claims provisions in the enterprise agreement, we say that's just simply wrong.
PN3214
There is no suggestion that the contractors of the relevant employers here are making any claims on their workers, let alone extra claims. The contractors are responding to lawful directions being given to them by BLL under the contractual agreements. That's got nothing to do with the terms and conditions of employment of any employee covered by the industrial prescription sought to be relied upon by the union, for obvious reasons that will be apparent from reading the contractor agreements.
PN3215
What we have here, we're talking about the conditions of entry onto site, not the terms or conditions of employment of any particular worker. They're entirely different situations. I was trying to think of another common example, when we thought about anybody who works in a high rise building in the city in an office block that might have a concierge and there might be a controlled access. A business might operate on level 14 in a building where there might be 100 workers working under an enterprise agreement.
PN3216
None of that will avail or assist them, no matter what the terms of that agreement, the right of the owner or occupier of that building to decide the circumstances in which you can come into the building and that is no different here, we say. It's got nothing to do with the terms and conditions of employment as strictly considered under an enterprise agreement. It's removed there from and I use the fatuous example that if someone lobbed into the foyer with two buckets of flaming coals, it could hardly be said, well, that they would be entitled to enter merely because they work on the 14th level.
PN3217
The occupier would say, well, you're not entitled to do that, I don't care who you work for or what you think your terms and conditions are, you're not coming onto the site carrying such items and similarly so they could actively require that you do carry an item for your own safety and everyone else's. As your Honour has already commented upon, we're not talking about anything new here, it is already well and truly out there.
PN3218
As to the fourth argument that's been advanced is about the dispute board recommendation, that recommendation is not a defence. There is no defence. It was too late, not binding in any event and, indeed, with respect, there was an election made here to belatedly crank up a different dispute resolution process. They could have come to the Commission. That option is apparent under the CFMEUs agreement and they have elected to go elsewhere.
PN3219
It is bizarre and quite remarkable to think that they could seek to rely upon recommendations emanating from that dispute body as somehow binding or directing your Honour's exercise of your statutory duty, that we say it's just not a sustainable contention. The fifth argument that has been mounted really is the attack on the BG system itself and can I just deal with them in a summary way because of reasons I have already advanced?
PN3220
Tracking and surveillance of workers both after hours and at work, no evidence to support that at all. It's baseless, scaremongering. Monitoring hours of work, no evidence to suggest that that is so. Indeed, the only evidence suggests the contrary. Indeed, Mr Peterson and Mr Plumber both gave evidence to the Commission that indicated that BLL has no interest in these matters. They are not there to monitor the hours of work. Most of the people aren't their employees. They only want to know who is on site when and especially in circumstances where things go wrong. Whether it be an emergency or an illness or a heart attack or something, they need to be able to use this system to help people.
PN3221
The idea that it can be or would be hooked to toilets or amenities of a nonsense, more scaremongering and just silly and the idea that anyone would have any interest in that, let alone a non-employer. Internal on site turnstiles that will restrict your ability to move around the site, not a stick of evidence to suggest that that is likely or would be done or that it would make any sense.
PN3222
That there would be a capricious disabling of cards for people that they don't like, no evidence, again more scare mongering and not supported by a stick of evidence. Access to and disclosure of private medical information, again not a stick of evidence and in any event, the company has indicated its preparedness that if any worker wants to remove medical information that they've already supplied at the point of induction they can do so. So that is a furphy and can do be attended to in any event. There's also clear evidence of the respondent on the access to this system. There is a reference in some of the unions' fliers to the idea that anyone across the world could access the data. That's contrary to the evidence that suggests that those people who do have passwords are restricted to the site upon which they have a particular role and certainly not an ability to access data beyond which they have a legitimate interest.
PN3223
The suggestion that the company might use this system and add other modules and that this will turn into big brother, again not a stick of evidence to suggest any such future intention let alone problem and indeed a surprising attack on a module that Ms Gooley spent some considerable time on that would stop people getting run over by trucks, somehow criticised is not a good idea because it's an act of big brother as opposed to stopping people getting run over. Somewhat surprising I might add but nevertheless one would have thought it should have been seen as a commendable option that should be taken up. But in any event, the company has indicated an undertaking that it will not, should it consider introducing any further module, that it will not do so without full and proper consultation.
PN3224
The next point that's been raised is that the system will be used to blame individuals for injuries occurring on the workplace, that you might find yourself to be in the wrong place at the wrong time. A baseless submission and not supported by any evidence. I think finally, or second last proposition, there's no need for such cards, that we've lasted long enough without them. It seems to ignore the evidence of the benefits of this system about evacuation and needing to know or might be needing to know who's left on site, not only in an emergency but also at the end of the day you know full well before you lock up whether the head count makes sense. By reference to visitor cards or swipe cards you can tell immediately if everybody has left and of course that's even more important if there be a fire or some other tragedy.
PN3225
There's also evidence about the need if someone fell down and had a heart attack or whatever, if you can pull up their medical details, if they've provided any, and you can by looking at the photo ensure that that card belongs to the person laying on the ground, it may well be that it will provide you with important medical information about blood transfusions, about medication there to take or not to take, or that might need or not need. One would have thought it's so obvious that it goes without saying and again surprising that this system has been the subject of such a collateral and baseless attack.
PN3226
The final point that's been raised was the fetter on the right of entry. The evidence is abundantly clear that as long as the rules of the law is complied with union officials will be given the right of entry. There's no suggestion and nothing in inherent in the BG system that interferes with that, and indeed union officials won't have a photo ID. They will have a visitor ID like anybody else and swipe themselves through and their attendance on site will be recorded in the visitors' book. They're not caught up in the same system. Can I just say this finally with respect to these arguments that really we say take the unions nowhere, the fact that this system has been introduced that the evidence is that this is the last area of Australia wherein it's left to be introduced having been in ACT, New South Wales and Queensland for some time now.
PN3227
One thing is abundantly clear and you can draw this inference, with respect, and should undoubtedly draw this inference, if the unions with all their resources and their contacts around this country, if they could have identified one stick of evidence to support any of the baseless contentions that have been advanced in these proceedings you would have heard it. If there was any suggestion that it had been people who have been tracked, surveiled, their toilets had been monitored, there had been capricious disabling of cards, there had been wrongful disclosure of medical information, that they were adding modules that nobody ever contemplated and it's a dramatic invasion of privacy, on and on and on, if there was a stick of evidence to support any of those contentions that have been advanced you would have heard it.
PN3228
The fact that you haven't only demonstrates the point in graphical terms that the contentions are baseless and what they've sought to do is undermine preparedness of workers to cooperate with the system that's in their best interest and done so in an unlawful way courtesy of industrial action. So as I say, to the extent it's necessary in reply I can deal with those matters in a more fulsome way but for the reasons we've advanced they don't avail the unions in any event because one would have thought if any they are based on the notion that if there's a legitimate grievance about this system, even if one was to accept that it was a legitimate grievance, even if we conceded that there was a foundation for grievance, it would not help and it would not enable your Honour to decline to make an order in light of the prerequisites having been satisfied. If it please the Commission, they're the submissions.
PN3229
THE COMMISSIONER: Thank you. Mr Green.
PN3230
MR GREEN: May it please your Honour. The submissions that have been advanced by Mr Kimber are submission which we adopt, with respect. They carry with them a great deal of force, if I might say so, and should be accepted. When you step back from the four days litigation in the Commission on the return of the application, be it the interim application or the final one, the opposition of the unions to the order sought, although impassioned, is not substantial and properly understood it is formal opposition. The unions have erected a façade of opposition behind which when it comes to any material in opposition there is nothing.
PN3231
The bombshell that was dropped in the course of the proceedings by both my learned friends, Ms Gooley and Ms Walters, that they did not intend to go into evidence says it all and at 3 o'clock this afternoon when Ms Gooley indicated to the Commission that her client union and Ms Walters organisation had closed their case just reinforced the bombshell that had been dropped a couple of days beforehand. The particular object or the principal object and the means by which relevantly the statutory object with which section 496 is a particular expression appears at paragraph (i) of section 3 of the Act, after the reference to the principal object of the Act set out in those prefatory words, one finds the means by which one hopes to secure that purpose in (i), but namely:
PN3232
Balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action.
PN3233
Now, of course the section invokes section 496, the ancillary provisions of section 120 and the other part of the statutory regime in furtherance of those provisions are a particular expression by which one seeks to attain that statutory objective or means of fulfilment. Mention has been made and rightly made, with respect, to the mandatory nature of the power reposed in the Commission being exercised once one or more of the conditions is satisfied. That's explicit in a number of ways. It's explicit in the face of the provision, section 496 where one finds the command in the presence of the word "most". It's underscored by the Full Federal Court judgment in the TWU case which was handed down earlier this year. Your Honour will be aware of what Gray and North JJ said in the joint judgment.
PN3234
Giles J delivered a judgment in that too and we don't read his Honour's judgment to diverge from what their Honours said in theirs. His Honour did say that he agreed with the orders proposed by their Honours and when one reads the judgment as a whole it does appear that there's nothing that the two judges in their joint judgment said relevantly that Giles J wanted to take exception to. There's a further echo of this type of approach to things, your Honour, in the common law. I know we're in the 21st century and that's a good thing no doubt. But as far back as the 19th century, in 1880 the House of Lords was drawing attention to a similar state of affairs in relation to how one exercises power in particular circumstances.
PN3235
There's a case we'll give you the reference to. It's Julius v The Lord Bishop of Oxford. That is reported in the Appeal Cases. We haven't been able to furnish your Honour with a copy of that but Mr Quigley was able to obtain from the library the AER version of that and if I can just make that available.
PN3236
THE SENIOR DEPUTY PRESIDENT: I'm not entirely sure how necessary it is to go to 1880 in light of recent - - -
PN3237
MR GREEN: Probably not, your Honour. Well, your Honour, I don't want to waste the Commission's time but can I just give you the relevant references? There's a speech of the Lord Chancellor. The citation I've given your Honour is 1874 to 80 AER at 43.
PN3238
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3239
MR GREEN: At page 47, letters (h) to (i), the Lord Chancellor Earl Cairns, said something of relevance and likewise Lord Blackburn at page 47, letters, (h) to (i). The burden of what their Lordships said there was:
PN3240
Where the relevant conditions are satisfied it becomes incumbent on the donee of the power to exercise it.
PN3241
So true it is it's an old case but it's a goodie too.
PN3242
THE SENIOR DEPUTY PRESIDENT: I thought I had made probably less poetic but similar observations in the passages you quoted to me this morning from the transcript in this matter.
PN3243
MR GREEN: Well, yes, your Honour. Indeed, the font of all knowledge, if I can tickle your Honour's tummy as it were, was your good self when your Honour identified what your Honour apprehended the issue to be.
PN3244
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3245
MR GREEN: And no-one has cavilled with that. This whole proceeding, the four days have proceeded upon an implicit acceptance that the issue you stated in those passages I took you to is the $64 question and I lay down the gauntlet now for either Ms Gooley or Ms Walters to say otherwise in the course of their submissions. That's their challenge. It's as easy and as hard as that. But if you find as a tribunal of fact that industrial action has occurred or is occurring or probably occurred, then that's the end of the penny section and once one understands that that is the issue this case, although it took four days to run, is a very straight forward case so far as the resolution of the matter goes.
PN3246
The framework that's been erected by my learned friend, Mr Kimber, in his written submissions has not even been given a shake by the unions. The body of evidence that's referred to in the first paragraph of his written submissions is intact. True it is there was cross-examination before tody and today around the periphery, but the central tenet of the evidence relied upon has been it has come through unscathed. Once one understands that it's just a matter of giving effect to the evidence and there can be a debate about its significance legally speaking. But as to the existence of the evidence it stands, as my learned friend Mr Kimber said, unchallenged and that's the easy part, if I may say so, of your Honour's task here.
PN3247
There are no relevantly speaking disputed questions of fact with which your Honour need concern yourself. Then the matter just resolves
into is there one or more of the conditions in the subsection, section 496, into which that evidence falls. Whatever the answer to that question is determines the outcome of this application. We don't wish
to say much more but may I, with respect, remind your Honour of something which I'm sure your Honour will keep steadily in mind.
When one reads, for example, the joint judgment in the TWU case, I think at paragraph 53, of Gray and North JJ, advert to the principle
of clarity being required where a mandatory order is made. Under the rubric of that principle can I reduce it to this proposition,
your Honour, the real question once one is satisfied that the conduct complained satisfies the statutory criterion is will there
be an order that I, a member of the Commission, pronounce that will work.
In other words, will the order I pronounce stop the action complained of and if it works you make the order and if your Honour concludes
it won't work you don't make the order. But that - - -
PN3248
THE SENIOR DEPUTY PRESIDENT: You make another order.
PN3249
MR GREEN: You make a different order. You make a different order and of course - - -
PN3250
THE SENIOR DEPUTY PRESIDENT: Yes. You're obliged to make an order.
PN3251
MR GREEN: Yes, absolutely.
PN3252
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3253
MR GREEN: But of course the name of the game is to make an order that falls out as it were of the evidence and you fashion, to use
my learned friend
Mr Kimber's words, the order to take account of the shape of the evidence, to take account of the nature of the conduct that has emerged
on the evidence. In other words, you don't shoot the arrow at a target that's not reflected by the evidence. If the shape of the
evidence is clear the order is directed to the malady as it were that's emerged on the evidence and the statutory injunction is clear
enough. What it appears the parliament's aspiration here is to do is to stop the vice as it were that has manifested itself in the
industrial action the subject of the evidence before the Commission.
PN3254
Now, your Honour, I know it's short, it's simple and it's as easy and as difficult as that in our submission. There was a reference by our learned friend, Mr Kimber, to that Full Bench decision where the Full Bench spoke about the rational and logical tendency, et cetera. Your Honour, that language, with respect, is appropriate here to an exercise of the power conferred upon you. It's provenance is not without interest. As we recollect, that language derives from statements that members of the High Court were making in the mid 1980s about the extent to which you construe the industrial disputes power in the Commission when it comes to making a finding of an industrial dispute and in settlement of the finding, bringing down an award to prevent or settle further disputation.
PN3255
These notions are not novel. They go way back and they've got a substantial pedigree and it's significant, it's submission, that the Full Bench in that decision I'm talking about fastened on to the very language that the High Court employed in the mid 1980s when they were trying to clarify the scope of the industrial disputes power in the Commission and that's significant too in a context where that power of course is not just to settle disputes but it's to prevent them from cropping again in the future and giving in the healing of the dispute as it were some composure to the state of affairs where there's been turbulence.
PN3256
The turbulence that emerges from the evidence here is apparent and the remedy by which relevantly the turbulence can be addressed is courtesy of the remedial orders contemplated by section 496. It's for those reasons that we urge upon your Honour that the appropriate course here, indeed the only course properly understood open to your Honour is to find that one or more of the conditions are satisfied and make an order that gives effect to your Honour's primary findings. We have examined our learned friend's order. In our respectful submission it would be an appropriate exercise of this Commission's remedial power to stop the action complained of.
PN3257
THE SENIOR DEPUTY PRESIDENT: Including a reference to the BLL directly employed employees or the application to - - -
PN3258
MR GREEN: I think, with respect to my learned friend, he intended to address your Honour on that, as I understand it.
PN3259
THE SENIOR DEPUTY PRESIDENT: Yes. But you won't get the opportunity after he's - - -
PN3260
MR GREEN: Well, it would be useful for me to know before I answer that whether he intended to do that. Do you want to say something about that?
PN3261
MR KIMBER: Yes, indeed. I apologise to your Honour because I did say I would come back to it and then I forgot to. Indeed we would say that there isn't evidence that would support the making of an order against BLL employees and the Full Federal Court's obviously indicated that there has to be an evidentiary foundation. So really in (1)(d), employed, it really should say by a subcontractor to perform work, employed by a subcontractor on any one of the following sites, because as I say, as I understand it there is no evidence to suggest that any of the BLL employees have engaged in the industrial action complained of.
PN3262
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN3263
MR GREEN: So to answer your Honour's question, I don't have any comment to make about that.
PN3264
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN3265
MR GREEN: May it please the Commission.
PN3266
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Gooley.
PN3267
MS GOOLEY: Before I started, your Honour, could I have some indication of what time you intend sitting to tonight?
PN3268
THE SENIOR DEPUTY PRESIDENT: Could I have some indication of how long you and Ms Walters are going to be?
PN3269
MS GOOLEY: I thought I would be a couple of hours, particularly to go through the evidence.
PN3270
THE SENIOR DEPUTY PRESIDENT: Well, I'm disposed to conclude the case either by written submission or to proceed this evening.
PN3271
MS GOOLEY: Well, I have no difficulty with dealing with it by written submissions, your Honour, because the only reason I wanted to know was I need to make a phone call to tell my 5 o'clock appointment whether I was going to be there or not.
PN3272
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3273
MS GOOLEY: And if your Honour is providing us with the opportunity to do written submissions then that is fine by myself and Ms Walters.
PN3274
THE SENIOR DEPUTY PRESIDENT: And I make that offer to the unions' conscious of the fact that there is an interim order applying.
PN3275
MS GOOLEY: Absolutely, your Honour, that's in force and is being complied with.
PN3276
THE SENIOR DEPUTY PRESIDENT: Can I ask firstly you, Ms Walters, if you have a view on that?
PN3277
MS WALTERS: As indicated by Ms Gooley, on the basis of the interim order as granted and compliance with that we'd be disposed to provide you with written submissions in relation to this matter.
PN3278
THE SENIOR DEPUTY PRESIDENT: Mr Kimber?
PN3279
MR KIMBER: Your Honour, might I have a moment to get instructions about that?
PN3280
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3281
MR KIMBER: I note that Ms Gooley's remark reminds me insofar as she said there's an interim order in place that's being complied with. I have received instructions today that insofar as the union was obligated to post the interim order on the noticeboards at the various sites, I've been recently advised that that didn't occur.
PN3282
MS GOOLEY: Might I respond to that, your Honour?
PN3283
MR KIMBER: But I can indicate - - -
PN3284
THE SENIOR DEPUTY PRESIDENT: Well, it's probably better addressed in another place, but yes.
PN3285
MS GOOLEY: Well, no, I think it should be address here.
PN3286
THE SENIOR DEPUTY PRESIDENT: If you can assist the company?
PN3287
MS GOOLEY: I think it should be addressed here, your Honour. My clients and Ms Walters clients attended the site to do precisely what they were instructed to by the time they were instructed to and they were denied entry to the site and they were not permitted to enter the site to post the orders.
PN3288
MR KIMBER: Your Honour might have foreshadowed that it's not quite as simple as that, but in any event, there is an issue about that.
PN3289
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I don't think it's an issue that need concern me.
PN3290
MR KIMBER: Yes. Could I just have a moment? I don't ask your Honour to adjourn.
PN3291
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3292
MS GOOLEY: Might I be excused just to make a phone call, your Honour?
PN3293
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3294
MR KIMBER: Your Honour, in light of the difficulties as your Honour has intimidated about availability, we can't really oppose the course that your Honour's suggested. The only thing that does occur is that the time frame, we wouldn't want this to drift out into some long winded process where weeks are assigned to give written submissions. We've come here today with the burden under this case and we've addressed and so one would have thought that a relatively short time frame should be allowed to the unions to what we've had to say and similarly so, we will respond in kind in a short order. But Ms Gooley has indicated that she's come here to address, well, if that's going to be done in writing presumably that could be done within, one would have thought by Monday that could be done and we can reply by Thursday next week.
PN3295
THE SENIOR DEPUTY PRESIDENT: Yes. Ms Gooley, what do you have - - -
PN3296
MS GOOLEY: I don't know what terms and conditions Mr Kimber works under but I don't work weekends. If we could have until Wednesday, your Honour?
PN3297
THE SENIOR DEPUTY PRESIDENT: Yes. Ms Walters?
PN3298
MS WALTERS: Wednesday would be sufficient, your Honour.
PN3299
THE SENIOR DEPUTY PRESIDENT: Yes. Is that a difficulty given the interim order in place, Mr Kimber?
PN3300
MR KIMBER: If the interim order is complied with that would assist in that sense. I'm not sure if your Honour - - -
PN3301
THE SENIOR DEPUTY PRESIDENT: How long would you need for reply?
PN3302
MR KIMBER: Well, I would think, obviously it will depend if I get a 95 page document it will take me a day to read it.
PN3303
THE SENIOR DEPUTY PRESIDENT: Well, you're going to get something that would take about two hours to present orally from Ms Gooley.
PN3304
MR KIMBER: Yes. Well, I should turn that to four. Look, within three or four business days, unless there be some major problem in which case we'd have to come back to register a complaint. If it's served on us then we'll do our level best to respond to it immediately. We have no interest in doing anything than getting the matter finished.
PN3305
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Do you wish to be heard on this, Mr Green?
PN3306
MR GREEN: No, your Honour.
PN3307
THE SENIOR DEPUTY PRESIDENT: You will get a right of reply too. How long had you anticipated to go, Ms Walters?
PN3308
MS WALTERS: Your Honour, in order not to repeat the submissions made by the ETU in circumstances where the evidence is relied on largely in a global way, there are some discrete matters that I wish to take your Honour to.
PN3309
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3310
MS WALTERS: They will be confined for the purpose of written submissions. We'll refer to the submissions of the ETU where we support them and where it's a matter referring to evidence that is differentiated I can't envisage those submissions being very long, your Honour.
PN3311
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Very well. Well, in the circumstances what I propose to do is to have the unions
to make written submissions filed in the Commission and served on the respondent and the intervener by 4 pm on Wednesday, the 20th.
That should provide sufficient time for some coordination so Ms Walters doesn't simply repeat large slabs of
Ms Gooley's submissions and I would seek reply materials from the respondent by 4 pm on Monday, 25 August and obviously if there is
any need for application to amend that that can be done. In the meantime the interim order remains in force. Unless there's anything
further from the parties I'll now adjourn.
PN3312
MR GREEN: May it please the Commission.
<ADJOURNED INDEFINITELY [5.01PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #BLL6 - REVISED FORM OF ORDER PN2105
LOU RANZOLIN, RECALLED AND RESWORN PN2120
EXAMINATION-IN-CHIEF BY MR KIMBER PN2120
EXHIBIT #BLL7 - INDUCTION RECORD PN2203
CROSS-EXAMINATION BY MS GOOLEY PN2216
RE-EXAMINATION BY MR KIMBER PN2312
THE WITNESS WITHDREW PN2319
ROBERT ANDREW MCGREGOR, RECALLED AND RESWORN PN2321
EXAMINATION-IN-CHIEF BY MR KIMBER PN2321
EXHIBIT #BLL8 - CURRENT DIARY ENTRY MARKED RM8 PN2344
CROSS-EXAMINATION BY MR GREEN PN2358
CROSS-EXAMINATION BY MS GOOLEY PN2365
EXHIBIT #BLL9 - ROYAL CHILDREN'S HOPSITAL CONTRACT PN2414
EXHIBIT #BLL10 - ANZ CONTRACT PN2414
CROSS-EXAMINATION BY MS WALTERS PN2419
RE-EXAMINATION BY MR KIMBER PN2464
THE WITNESS WITHDREW PN2502
MARK CAMERON PLUMBER, SWORN PN2506
EXAMINATION-IN-CHIEF BY MR KIMBER PN2506
EXHIBIT #BLL11 - STATEMENT OF MARK PLUMBER, DATED 12/08/08. PN2524
CROSS-EXAMINATION BY MS GOOLEY PN2557
THE WITNESS WITHDREW PN2592
EXHIBIT #BLL12 - CONSTRUCTION REGULATIONS WORKING SAFELY IN THE CONSRUCTION INDUSTRY, A PUBLICATION OF WORKSAFE VICTORIA PN2595
WARREN CHARLES CRUZE, AFFIRMED PN2600
EXAMINATION-IN-CHIEF BY MR GREEN PN2612
EXHIBIT #ABCC1 - WITNESS STATEMENT OF WAREN CHARELS CRUZE, INCLUDING ATTACHMENT, FLYER AND PHOTOGRAPHS PN2621
CROSS-EXAMINATION BY MS GOOLEY PN2625
CROSS-EXAMINATION BY MS WALTERS PN2696
RE-EXAMINATION BY MR GREEN PN2784
THE WITNESS WITHDREW PN2812
EXHIBIT #BLL12 TYPED ANNEXURES TO MR BROADHEAD'S AFFIDAVIT PN2826
JOLYON HAROLD GEOFFREY KEEBLE, AFFIRMED PN2831
EXAMINATION-IN-CHIEF BY MR KIMBER PN2831
EXHIBIT #BLL13 VICTORIA HARBOUR SITE LAYOUT MAP PN2887
CROSS-EXAMINATION BY MR GREEN PN2949
RE-EXAMINATION BY MR KIMBER PN2970
CROSS-EXAMINATION BY MS GOOLEY PN2980
THE WITNESS WITHDREW PN3015
EXHIBIT #CEPU5 ETU ENTERPRISE AGREEMENT 2007-2010 PN3017
EXHIBIT #CFMEU1 TEMPLATE COLLECTIVE AGREEMENT WITH CONTRACTORS DOCUMENT PN3018
EXHIBIT #BLL14 ROYAL CHILDREN'S HOSPITAL SITE LAYOUT PLAN PN3031
EXHIBIT #BLL15 SCHEDULE REFERRING TO EVIDENCE TO SUPPORT ORDERS SOUGHT PN3158
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