C2014/7532, Transcript of Proceedings [2014] FWCTrans 690 (11 November 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1050885-1

DEPUTY PRESIDENT ASBURY

C2014/7532

s.418 - Application for an order that industrial action by employees or employers stop etc.

Watpac Construction Pty Ltd
and
Construction, Forestry, Mining and Energy Union
(C2014/7532)





Brisbane

4.46PM, MONDAY, 3 NOVEMBER 2014

PN1

THE DEPUTY PRESIDENT: Thank you. Could I just take appearances, please?

PN2

MR M. BELFIELD: Yes. Belfield, initial M, from Master Builders for Watpac.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Belfield.

PN4

MR A. COUSNER: May it please the commission, Cousner, C-o-u-s-n-e-r, initial A. I appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN5

THE DEPUTY PRESIDENT: Thank you. Mr Belfield.

PN6

MR BELFIELD: Deputy President, I have had a brief conversation with Mr Cousner prior to the commencement this afternoon. I am provided with the documents of service, that I trust he is satisfied with. Watpac has distributed the order of (indistinct) service to the subcontractors on each site with instructions in turn to advise their own employees – and Watpac itself has advised its own employees. So I would say that we have done as much as possible to comply with the service and I would hope that that wouldn’t hold us up any further.

PN7

THE DEPUTY PRESIDENT: Mr Cousner.

PN8

MR COUSNER: Certainly not, Deputy President. We’re more than prepared to proceed.

PN9

THE DEPUTY PRESIDENT: Okay. Thanks.

PN10

MR BELFIELD: Okay.

PN11

THE DEPUTY PRESIDENT: Mr Belfield, are you ready to proceed with your case?

PN12

MR BELFIELD: Yes. I’ve got four witnesses. These statements were filed with the application.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MR BELFIELD: And I would just like to – I guess we will start with Brian Hayes, if I could? And the others will have to leave the room now.

PN15

THE DEPUTY PRESIDENT: Would the other witnesses leave the room and we’ll deal with them one at a time. Thank you.

<BRIAN HAYES, SWORN [4.48PM]

PN16

THE DEPUTY PRESIDENT: Thanks for that.

<EXAMINATION-IN-CHIEF BY MR BELFIELD [4.49PM]

PN17

MR BELFIELD: Brian, you prepared a statement for these proceedings today?
---Yes.

PN18

Do you have a copy with you?---Yes.

PN19

And could I just provide the witness a copy and then if he identifies it and then have it identified, please? Is that the same - - -?---Same copy. Yes.

PN20

Yes.

PN21

THE DEPUTY PRESIDENT: Okay. So it’s four paragraphs long, Mr Hayes?
---Yes.

PN22

Okay. And to the best of your knowledge the contents of that statement are true and correct?---Correct.

PN23

Okay. You wish to tender it, Mr Belfield?

PN24

MR BELFIELD: Yes, please.

PN25

THE DEPUTY PRESIDENT: We’ll mark it as exhibit 1.

EXHIBIT #1 WRITTEN STATEMENT OF MR BRIAN HAYES

PN26

MR BELFIELD: Brian, how many employees do you have on that project?
---We’re averaging around 50 employees at (indistinct)

PN27

And how many employees would be CFMEU members or engaged in this dispute?---You’re probably looking at about 40. 40 employees.

**** BRIAN HAYES XN MR BELFIELD
PN28

And the remainder are - - -?---(indistinct) are electrical and plumbing.

PN29

You say at paragraph 4 that you were informed by one of the contractors that there was to be another meeting on Thursday. Do you mean – is it this coming Thursday the 6^th?---Correct. Yes.

PN30

And you use those words there “to see if there was any further developments.” What do you mean? What did you understand it to mean when you were told that?---My understanding was any further developments on the issue at hand, I suppose. Which was the (indistinct) and paragraph number 3, I think. Which was regarding a Union delegate.

PN31

Do you know if there has been a meeting arranged for Thursday?---From what I’ve been informed by the people that were in attendance at that meeting, yes.

PN32

And last Friday there – sorry. Yes. Friday you had a meeting on about 6.30, you say in your evidence?---Correct. Yes.

PN33

Have you been advised what time there might be a meeting on Thursday? Has anyone told you?---No.

PN34

I have no further questions. Thank you.

PN35

THE DEPUTY PRESIDENT: Mr Hayes, when you had the discussion with Mr Mark O’Brien did he say anything else about the purpose of the meeting?
---When (indistinct) asked him why he was (indistinct) site he said he was here to have a meeting with his members at half past six.

PN36

Okay. And what do you understand the issue is with the Union delegates onsite? What’s your understanding of that issue?---My understanding is that the CFMEU want one of their own members as a delegate onsite.

**** BRIAN HAYES XN MR BELFIELD
PN37

Okay. All right. Cross-examination, Mr Cousner?

<CROSS-EXAMINATION BY MR COUSNER [4.52PM]

PN38

MR COUSNER: Mr Hayes, I only have a few questions for you. You say that approximately 40 of the 50 people you have on the site are CFMEU members. Do you stand by that evidence?---Well, I can’t guarantee they are members of the Unions but about 40 of the 50 went out on that day.

PN39

So you have absolutely no idea how many people on your site are members of the CFMEU?---No. We don’t check memberships.

PN40

Okay. So why did you say before that 40 people of the 50 were members?---I would assume if they left based on CFMEU issue that they would be a member; that they went to a CFMEU meeting.

PN41

You assumed?---Yes.

PN42

I see. Mr Hayes, you say at paragraph 3 that you were informed by numerous contractors the discussion was about Watpac not having one of their Union delegates onsite. Who were the numerous contractors that you spoke to?---Names or - - -

PN43

Please?---I spoke with Brendan Hodge of Shamrock Civil, who is (indistinct) safety representatives who attended the meeting. A number of his blokes as well.

PN44

So who is Brendan, sorry?---Brendan Hodge.

PN45

Yes. And what position does he hold - - -?---Shamrock Civil. He is one of the – he’s a safety advisor.

**** BRIAN HAYES XXN MR COUSNER
PN46

Safety advisor?---Yes.

PN47

And he attended the meeting?---Yes.

PN48

How do you know he attended the meeting?---Because he has told me he attended the meeting.

PN49

Okay. So that’s one?---Yes.

PN50

Any other contractors?---Alberto. He’s a supervisor for (indistinct)

PN51

And who is he?---He’s a supervisor – onsite supervisor.

PN52

Okay. And he attended the meeting?---Yes.

PN53

How do you know that?---Because he told me he (indistinct)

PN54

Any other contractors?---I don’t know all the guys’ names but - - -

PN55

So there’s only two that you can recall that actually gave you this information that you refer to?---Obviously I heard other things through my site foreman as well, who spoke to the guys as well. And that’s the feedback I got. So - - -

PN56

So someone told your site foreman - - -?---Yes.

PN57

- - - and your site foreman told you?---Yes. And I spoke to guys directly as well.

PN58

Did you follow up with anyone that your site foreman said had given him this information - - -?---No. I didn’t.

**** BRIAN HAYES XXN MR COUSNER
PN59

- - - to assure yourself that it was right?---Or direct employees too or crane crew have told me.

PN60

(indistinct) ?---Neil Young is another bloke.

PN61

You spoke to the crane crew?---Yes.

PN62

Where is that in your statement?---Well, there’s – it’s in paragraph 3.

PN63

I have to admit I’ve read paragraph 3 a number of times. I’ve never seen you say you spoke to the crane crew. I see. So you just left that out?---Yes.

PN64

Do you have any direct knowledge of what was said in the meeting?---I wasn’t at the meeting. So no.

PN65

So you have no direct knowledge of what was actually said inside that meeting?
---Without being at the meeting, no.

PN66

So it’s just a guess?---No. It’s from what I’ve been told from people that attended the meeting.

PN67

I see. Thank you, your Honour. I have nothing further. Thank you.

PN68

THE DEPUTY PRESIDENT: Re-examination, Mr Belfield?

PN69

MR BELFIELD: No. Thank you.

PN70

THE DEPUTY PRESIDENT: Thanks for giving your evidence, Mr Hayes. You are excused?---Thank you.

**** BRIAN HAYES XXN MR COUSNER
PN71

You can stay in the room or go about your business. Whatever you prefer to do?
---Thank you.

PN72

Thanks.

<THE WITNESS WITHDREW [4.46PM]

PN73

THE DEPUTY PRESIDENT: Who have we got next, Mr Belfield?

PN74

MR BELFIELD: If I could perhaps call Stewart Roberts?

PN75

THE DEPUTY PRESIDENT: Yes.

PN76

MR BELFIELD: Thanks.

<STEWART ROBERTS, SWORN [4.57PM]
<EXAMINATION-IN-CHIEF BY MR BELFIELD [4.57PM]

PN77

MR BELFIELD: Stewart, did you prepare a witness statement for these proceedings?---I did. Yes.

PN78

Do you have a copy with you?---Yes.

PN79

If I show you a copy of a statement could you identify that for the Deputy President, please? Is that - - -?---Yes.

PN80

Okay. Could I tender that, please, Deputy President?

PN81

THE DEPUTY PRESIDENT: Yes. Certainly.

PN82

MR BELFIELD: Thank you.

**** STEWART ROBERTS XN MR BELFIELD
PN83

THE DEPUTY PRESIDENT: Okay. And to the best of your knowledge, Mr Roberts, the contents of that statement are true and correct?---Yes.

PN84

Okay. We will mark it as exhibit 2.

EXHIBIT #2 WRITTEN STATEMENT OF MR STEWART ROBERTS

PN85

THE DEPUTY PRESIDENT: Any further questions, Mr Belfield?

PN86

MR BELFIELD: Stewart, you say on dot point – I think there’s one, two, three, four, five – you say:

PN87

I was also advised that there would be a return to work on Thursday 6^th of November.

PN88

Could you explain who told you that?---One of the attendees at the meeting. I think it was one our crane crew told me.

PN89

Was there any more detail provided to you?---Not really.

PN90

What do you understand what they meant?---We would be coming back on Thursday and probably have a discussion before we started. So I’m not quite sure when we’re going to start.

PN91

What’s a normal starting time?---6 o’clock.

PN92

So did anyone tell you they would be back at 6 o’clock?---No.

PN93

I have no further questions. Thank you.

**** STEWART ROBERTS XN MR BELFIELD
PN94

THE DEPUTY PRESIDENT: Thanks. Cross-examination, Mr Cousner?

<CROSS-EXAMINATION BY MR COUSNER [4.59PM]

PN95

MR COUSNER: Thank you, your Honour.

PN96

Mr Roberts, I want to pick up where my friend left off. You say in your statement that you were advised that there would be a return to work on 6 November. May I ask for the commission what it was that was actually said to you?---It was one of our crane crew said to me that, “We’re gonna to come back on Thursday.

PN97

“We’re gonna to come back on Thursday”?---Yes. But he didn’t say when. He didn’t say what time.

PN98

I see. He said, “We’re gonna come back on Thursday”?---Yes.

PN99

I see. And you have no reason to believe that they won’t be returning to work on Thursday?---I can’t say one way or the other.

PN100

My question to you, sir, is do you have any reason to believe that people won’t be coming back to work on Thursday?---No.

PN101

Thank you. Now, Mr Roberts, you say that Mr Vink, when attending your site, advised you that he was there to have a discussion about delegates. That’s not right, is it?---No. It is right.

PN102

He never said those to words to you at all, did he?---He did. Not on our site, though. It wasn’t to do with delegates on our site.

PN103

Is your evidence seriously that Mr Vink turned up onsite and said, “I’m here to have a discussion about CFMEU delegates”?---On other Watpac jobs. Yes.

**** STEWART ROBERTS XXN MR COUSNER
PN104

“On other Watpac jobs.” That’s your evidence. What were the words he used to you?---Oh, I can’t remember exactly.

PN105

You can’t remember?---I can’t remember the exact words but that was the inference.

PN106

That was the inference?---Yes. No. That’s – yes.

PN107

So you want this commission to give section 418 orders on an inference of something that was said to you. Your statement is essentially an email that you wrote to Mr Cochrane, is that right?---That’s right. Yes.

PN108

I see. And that email was written, as far as I can see, at about half past eight in the morning, is that right?---Yes.

PN109

And these events happened shortly after 6 am?---Yes.

PN110

Why did you not include the formal words that Mr Vink had said? It was only a couple of hours before?---Sorry, could you repeat the question?

PN111

Could you not remember what Mr Vink had said when you wrote this email?
---No. I – he did say what I said he said.

PN112

You’ve surmised what he said there?---No. He did say that. He did say it wasn’t about this job and it was about delegates in other Watpac jobs.

PN113

I see. Now, you say, about halfway down the page at the fourth dot point, that you were:

PN114

Advised by attendees at the meeting the action was put forward by the CFMEU as they considered that Watpac had not honoured their obligation with regards to delegates onsite and under the terms of the EBA.

PN115
**** STEWART ROBERTS XXN MR COUSNER

You see that?---Yes.

PN116

There’s a lot of vague comments in that dot point, isn’t there?---Yes. I suppose so. It was based on hearsay.

PN117

It’s based on hearsay?---Yes.

PN118

Okay?---Because I wasn’t at the meeting.

PN119

Can you point out to me what it is - - -?---I wasn’t at the meeting.

PN120

I beg your pardon?---I wasn’t at the meeting. So I never - - -

PN121

So you have absolutely no knowledge of what happened inside the meeting?---No.

PN122

I see?---Other than what I was told.

PN123

Okay. And who told you?---A couple of members of the crane crew.

PN124

“A couple of members of the crane crew.” Do they have names?---Yes. Robert Davidson and Mark Rolands.

PN125

I see. And what exactly did they say to you?---They were there to talk about delegates on our site. It was nothing to do with Gold Coast Private Hospital. And they were going to come back on Thursday to work.

PN126

I see. So this stuff that you say in here about “The action was put forward by the CFMEU” they didn’t say that to you at all, did they? You’ve just made that up?
---Based on the information I had.

PN127

Based on the information you had. What was that information?---Which was given to me by the crane crew.

**** STEWART ROBERTS XXN MR COUSNER
PN128

I see. Were any of the crane crew officials of the CFMEU?---Sorry?

PN129

Were any of the crane crew officials of the CFMEU?---No.

PN130

Okay. So what basis do you have to say that “The action was put forward by the CFMEU”?---I can’t answer that. I’m unsure how to answer that.

PN131

Can you answer it because the answer is “none”?---No. The answer is “I don’t know” because I wasn’t at the meeting.

PN132

You have no basis (indistinct) ?---I’m only telling you what I was advised by people that were at the meeting.

PN133

Okay. So just to recap, you have no direct knowledge of what actually happened in the meeting?---That’s right.

PN134

You have made up this stuff about the CFMEU putting forward the action, whatever that means. You have no basis for that at all?---Other than what I was told by people that attended the meeting.

PN135

Okay. The people who attended the meeting, the crane crew - - -?---Yes.

PN136

- - - what did they say to you that gave you the impression that the action was put forward by the CFMEU?---I’m not sure.

PN137

Thank you, Mr Roberts. Thank you, your Honour. I have nothing further.

PN138

THE DEPUTY PRESIDENT: Re-examination, Mr Belfield?

<RE-EXAMINATION BY MR BELFIELD [5.05PM]

PN139
**** STEWART ROBERTS RXN MR BELFIELD

MR BELFIELD: Mr Roberts, you said to Mr Cousner that the crane crew, I think it was you said, said they were going to come back on Thursday?---Yes.

PN140

And you said, “Yes.” Do you know what time they’re coming back?---No. I don’t.

PN141

Right. Thank you. No further questions.

PN142

THE DEPUTY PRESIDENT: Thanks for giving your evidence. You’re excused, Mr Roberts?---Thank you.

<THE WITNESS WITHDREW [5.05PM]

PN143

MR BELFIELD: Call Daniel Smith.

<DANIEL SMITH, SWORN [5.06PM]
<EXAMINATION-IN-CHIEF BY MR BELFIELD [5.06PM]

PN144

MR BELFIELD: Mr Smith, did you prepare a statement for these proceedings?
---Yes. I did.

PN145

If you would like to show the witness that document. Is that the same? Is that a copy of the statement that you prepared?---Yes. It is.

PN146

Okay. Could I have that identified, please, Deputy President?

PN147

THE DEPUTY PRESIDENT: Yes. We’ll mark that as exhibit 3.

EXHIBIT #3 WRITTEN STATEMENT OF MR DANIEL SMITH

PN148

MR BELFIELD: Mr Smith, is it a true correct statement?---Yes. It is.

PN149

How many people are usually engaged on construction work (indistinct) are usually engaged onsite on the Springfield Mater Hospital site?---On an average day 75 to 80 people.

**** DANIEL SMITH XN MR BELFIELD
PN150

And on the Friday how many stayed working? Last week, last Friday?
---Approximately 22, I think it was.

PN151

That’s pretty good. 22 (indistinct) approximate?---Yes.

PN152

Were they services trades or other contractors?---Service trades only.

PN153

MR COUSNER: Perhaps we could just not lead the witness when we’re asking questions.

PN154

MR BELFIELD: I don’t think it’s - - -

PN155

THE DEPUTY PRESIDENT: If you could try not to, though, Mr Belfield.

PN156

MR BELFIELD: If I go to your second last dot point in the middle of the page, you said that you were “advised” that:

PN157

Once the meeting was over I was advised that a vote had been taken and all the CFMEU members were going home with a view to returning to work on the 6^th of November.

PN158

The words the “view to returning to work” is that something you heard or - - -?
---The word “view” is my summary of what I was told. Best explain what I was told.

PN159

So are you able to give any more information on when the return to work could be? Would be?---Well, a couple of people I spoke to – one was back to work on Thursday. Presumably normal. Straight into it. Others weren’t so clear. So I’m not exactly sure on what’s going to happen Thursday morning. So hence the “view” to return to work.

**** DANIEL SMITH XN MR BELFIELD
PN160

Okay. When you say “others” you spoke to who are we talking about?---Our direct employees. My crane crew.

PN161

Okay. What time do you normally start work?---6 o’clock we have our pre-start.

PN162

So did anyone tell you they will be back at work at 6 o’clock?---No.

PN163

No further questions. Thank you.

PN164

THE DEPUTY PRESIDENT: Cross-examination, Mr Cousner?

<CROSS-EXAMINATION BY MR COUSNER [5.09PM]

PN165

MR COUSNER: Mr Smith, I have only one question for you?---Yes.

PN166

Do you have any reason to believe that work won’t recommence as usual on Thursday morning?---Yes. Just on the difference of stories that I got. Yes.

PN167

Okay. How do you think work is going to recommence on Thursday morning?
---Assuming that it does, well, 6 o’clock would roll in. We would do our normal pre-starts. That would be a normal start but I’m not confident that will happen.

PN168

But you don’t think that will happen?---No. I don’t.

PN169

Why do you say that?---Well, if something clear was made to the guys they would know exactly what was going to happen. So to have a difference in stories obviously no-one is clear on what’s going to happen Thursday morning.

PN170

You say in your statement that:

PN171

Members have gone home with a view to returning to work on the 6^th of November.

**** DANIEL SMITH XXN MR COUSNER
PN172

What’s unclear about that?---The “view” is my wording.

PN173

I see?---The word “view” is what I used to summarise what I was told.

PN174

All right. So if we excise the word “view” then “gone home. Return on 6 November”?---Yes.

PN175

That’s fairly clear, isn’t it?---That is clear. Yes.

PN176

So there will be a return to work on 6 November?---At some point they may return to work on 6 November.

PN177

Thank you, Deputy President.

PN178

THE DEPUTY PRESIDENT: Mr Smith, sorry, I’m just looking at your statement. So when you say different versions of events or different stories about return to work what do you mean by that?---Well, a couple of people that I spoke to – one was, sort of, “Oh, we should be back Thursday” – well, sorry, “We’re back Thursday.” Presumingly normal. Straight into a start. Whereas the other one wasn’t so clear.

PN179

What did the other person say?---It was more, “So I think we’re starting on Thursday morning but we may have something else.”

PN180

Okay?---And they couldn’t elaborate on (indistinct) very sketchy detail.

PN181

Was there any mention of a further meeting on Thursday morning?---No. There wasn’t.

PN182

Okay. All right. Anything arising from that, Mr Belfield? Re-examination?

**** DANIEL SMITH XXN MR COUSNER
PN183

MR BELFIELD: No. Thank you, Deputy President. No further questions.

PN184

THE DEPUTY PRESIDENT: Thanks for giving your evidence. You’re excused.

<THE WITNESS WITHDREW [5.12PM]

PN185

MR BELFIELD: Yes. Just call Brad Ross, please?

PN186

THE DEPUTY PRESIDENT: Yes.

<BRAD ROSS, SWORN [5.12PM]
<EXAMINATION-IN-CHIEF BY MR BELFIELD [5.13PM]

PN187

MR BELFIELD: Mr Ross, have you prepared a statement for this proceeding?
---Yes.

PN188

Do you have that with you?---Yes.

PN189

Could I show the witness a copy of the statement and ask him to identify it, please? Is that - - -?---That’s my statement.

PN190

Okay. Could I have that and - - -?---Pop it back. I’m sorry.

PN191

- - - tender that – no. Tender that in evidence, please?---All right.

PN192

THE DEPUTY PRESIDENT: And to the best of your knowledge, Mr Ross, the contents of that statement are true and correct?---Yes. It is.

PN193

Okay. Thank you. We’ll mark it as exhibit 4.

EXHIBIT #4 WRITTEN STATEMENT OF MR BRAD ROSS

PN194

MR BELFIELD: Mr Ross, how many employees are normally engaged on 180?

**** BRAD ROSS XN MR BELFIELD

---We average around a hundred and ninety five subcontractor personnel onsite and there’s about 34 Watpac personnel in total, including management.

PN195

And following the meeting on Friday morning last week how many employees left your (indistinct) ?---There’s around a hundred – yes. So probably around a hundred and ten to a hundred and twenty employees who (indistinct)

PN196

You say at your statement, at nine, the last sentence, that you spoke to Mark Henry. He’s a delegate on that site, is he not?---He is the CFMEU delegate. Yes. That’s right.

PN197

And you say that he said to you that the workers would return where a safety walk would be held prior to any work commencing?---Yes. That’s correct.

PN198

What’s a safety walk?---In terms that Mark would put that is where they would gather members of the safety committee and do a walk through the project. This – from experience a safety walk for that would be safety committee is gathered, they would walk through the project and identify any issues or raise any safety concerns that may be prevalent.

PN199

Does anyone work while this safety walk is happening?---Oh, no. No. It’s – yes. So what they do is they sit the workers in the shed – you know, this is historically on projects. Is that they will sit them in the shed until the safety walk is completed. Any rectification that is required, they will release the rectification through to rectify those items. Once they’re rectified the safety committee reinspects and then once everything is completed then they will release the workers from wherever they’re keeping them.

PN200

So you’re saying that the workforce sits in the shed before the safety committee proceeds on its walk?---That’s correct.

**** BRAD ROSS XN MR BELFIELD
PN201

And how long, in your experience, do these safety walks go for?---We’ve had them last all day. We’ve had them last five hours. Probably the minimum would be an hour but on average you would usually – it’s certainly not before smoko. And smoko is 9.30 to 10 am. So it’s certainly not getting back before 10 am. That’s usually the average. Yes.

PN202

That’s on this site, not a - - -?---Yes. That’s correct.

PN203

I have no further questions. Thank you.

PN204

THE DEPUTY PRESIDENT: Is it a usual practise to conduct those safety – when are they usually conducted?---Impromptu. So we’ve had them – this latest one – you know, he used the reference that, “We’re going to be away for five days. So we’ll be doing a safety walk to make sure that the site’s still in a safe condition even though there hasn’t been any work take place.” Other examples would be if there had been a safety incident, is an example, where they – even though it has been investigated by Workplace Health and Safety they would choose to do one the next day or one of our own. And then really it will happen just out of work.

PN205

Would it be usual practise for one to occur after a three day block of RDOs?---No. It’s not – certainly not in my experience in the industry but it is with this individual. He has done that to me once before, where we had not as long a period but a similar long weekend type period. He wanted a safety walk when we returned.

PN206

Okay. So they’re just impromptu. There’s usually no notice given of them?
---There’s no rhyme or reason. No.

PN207

Okay. Thanks for that. Cross-examination, Mr Cousner?

<CROSS-EXAMINATION BY MR COUSNER [5.18PM]

PN208
**** BRAD ROSS XXN MR COUSNER

MR COUSNER: Mr Ross, do you support the safety committee on your site?
---Yes. Certainly.

PN209

Do you support their right to conduct safety walks?---We conduct a safety walk every week.

PN210

So when you said before that it’s not a common occurrence that’s not exactly true, is it?---Well – sorry. My reference there was sitting the workers in the shed until it’s completed. So as part of the safety committee we’ll do a walk around the job whilst people are working, to identify issues – and that happens every week. And we have a safety committee meeting after that walk to work through any issues we discover or any improvements we can make.

PN211

How long has your site been operational for?---May 2013 we commenced.

PN212

Okay. How many full site safety walks have you had in that time?---Apart from the one weekly that we have as a safety committee, that Watpac initiate, or are you talking Union organised ones?

PN213

I’m talking about how many safety walks have you had on that site?---One a week for that period.

PN214

I see. If the safety committee identified an issue that endangered workers’ health and safety on the site what would be the practise after that?---It would be rectified immediately.

PN215

Would workers be continuing to work in that area while it was happening?---No. It would be isolated and they would work in a safe area. So if we were on a safety committee walk – on our Wednesday walk and we noticed, for example, edge protection was missing we’ve barricaded that area off and there wouldn’t be any work take place in that area. Work would continue in areas that are safe.

**** BRAD ROSS XXN MR COUSNER
PN216

I see. Do you think it’s unreasonable for the safety committee to request a full site walk after five days off?---Well, it is, considering we do one a week anyway and what I find unreasonable is that no work commences in safe areas. So we have a weekly safety walk anyway that - - -

PN217

Mr Ross, isn’t it the role of the safety walk to identify safe areas? Isn’t that the whole point of the process?---The point of the process – yes. It’s to review safety on the site. So to review the level of safety onsite.

PN218

I see?---So we do that weekly anyway.

PN219

But if a worker hasn’t been on that site for five days they’re not going to have any knowledge about what may or may not have happened in the intervening five days, would they?---Oh, it would be a question of what could possibly change because work didn’t take place. So - - -

PN220

That would be the question they would want answered, wouldn’t they?---But – well, that question could be answered and that question could be answered in conjunction with work taking place. So - - -

PN221

But how can that be? If they don’t know it’s safe how can they conduct safe works?---Because there’s processes in place. So there’s supervisors - - -

PN222

One of those processes is a safety walk, isn’t it?---Well, there’s a safety committee that represents each of the trades onsite. So it’s the duty of a safety committee member to report anything – or it’s the duty of any worker onsite to report something that’s unsafe. So it doesn’t need to be a break in play, so to speak, for – it could be just during the course of the day that something becomes unsafe and the duty is there for it to be reported and rectified. So - - -

**** BRAD ROSS XXN MR COUSNER
PN223

A five day shutdown, including a weekend and three RDOs, that’s a fairly lengthy stop on a site, isn’t it?---Oh, I wouldn’t necessarily agree because no work has taken place.

PN224

How many days a week do workers perform work on your site?---Pardon?

PN225

How many days per week do workers routinely perform work on your site?
---Six days.

PN226

Six days?---Yes.

PN227

So Monday to Saturday?---Yes.

PN228

Have the Sunday off?---Yes.

PN229

Back to work on Monday?---Yes.

PN230

I see. So one day is not a lengthy break, is it?---No. It’s a routine break.

PN231

I see. Have you ever come back after a one day break and there would be a safety issue that has arisen over that course of time?---Could well do. Due to weather. The front fence could blow over, maybe, during - - -

PN232

I see?---So - - -

PN233

So if you’ve got a wet site would you be directing people to work in those conditions?---We have a wet weather procedure for wet weather.

PN234

And that starts with, what, people being parked in a shed?---That starts with – no. That starts with prior to work starting - that safety members – safety committee members and our site safety officers inspect the site; nominate areas that may require to be de-watered; a de-watering crew is sent out to de-water those areas before work is commenced in those areas. So - - -

**** BRAD ROSS XXN MR COUSNER
PN235

Before work commences?---Well, no. They also identify areas that are dry and work can commence.

PN236

But they would need to identify those areas before they could do it, could they not?---That’s correct. But in our wet weather procedure that’s done before the normal start time.

PN237

Okay. Is it your evidence that over the course of a five day break no safety incidences could occur on that site?---That no safety incidences could occur?

PN238

Yes?---Safety incidences – I couldn’t say that. Safety incidences are safety incidences for a reason because there are risks that can occur at any time or through any action. That’s why we remain vigilant.

PN239

Thank you, Mr Ross. So the request for the safety committee to conduct a walk prior to work commencing on the 6^th is not an unreasonable one?---I believe it to be unreasonable that workers sit in the shed before that commences. By all means, in conjunction to or - - -

PN240

Mr Ross, Mark Henry, who does he work for?---One Form.

PN241

One Form. And Mr Trevor Curreen, who does he work for?---For Watpac.

PN242

He works for Watpac. I see. And neither of those gentlemen are officers of the CFMEU?---They’re CFMEU delegates.

PN243

And that is not an official position of the CFMEU, is it?---To me, they’re CFMEU delegates. They’re put forward by the CFMEU on numerous occasions where I’m communicated with through the delegates to organisers. So they’re – they seem to be, for me, that - - -

**** BRAD ROSS XXN MR COUSNER
PN244

Mr Ross, do you understand the difference between a delegate and an organiser?
---Sure.

PN245

Could you explain what that is?---Okay. So an organiser is directly employed by the Union. Whereas delegates are representative of the workers onsite.

PN246

I see. Thank you, Mr Ross. I have nothing further, your Honour.

PN247

THE DEPUTY PRESIDENT: Re-examination, Mr Belfield?

PN248

MR BELFIELD: No. Thank you.

PN249

THE DEPUTY PRESIDENT: Thanks.

PN250

Thanks for giving your evidence, Mr Ross. You’re excused.

<THE WITNESS WITHDREW [5.25PM]

PN251

THE DEPUTY PRESIDENT: Is that the evidence?

PN252

MR BELFIELD: Yes. Thank you, Deputy President.

PN253

THE DEPUTY PRESIDENT: Mr Belfield. You’re not calling any evidence, Mr Cousner?

PN254

MR COUSNER: I’m not. No, your Honour.

PN255

THE DEPUTY PRESIDENT: Okay. Ready to make your submissions, Mr Belfield?

PN256

MR BELFIELD: Yes. Thank you. I’ll just sort my papers out. Deputy President, I provided your office late today a copy of a draft order.

PN257

THE DEPUTY PRESIDENT: Yes.

PN258

MR BELFIELD: And I just want to check that we’re all working from the document. There has been some misunderstandings. So from the Gold Coast Hospital we have A through to K - - -

PN259

THE DEPUTY PRESIDENT: Yes.

PN260

MR BELFIELD: - - - subcontractors identified.

PN261

THE DEPUTY PRESIDENT: Starting with Global - - -

PN262

MR BELFIELD: That’s right.

PN263

THE DEPUTY PRESIDENT: - - - Industrial Services - - -

PN264

MR BELFIELD: Yes. And I think there was - - -

PN265

THE DEPUTY PRESIDENT: - - - and the concluding with Superior Walls and Ceilings.

PN266

MR BELFIELD: That’s right.

PN267

THE DEPUTY PRESIDENT: Yes.

PN268

MR BELFIELD: And Mater Private starts with Scooter Commercial and finishes with FTF Bricklaying.

PN269

THE DEPUTY PRESIDENT: Yes.

PN270

MR BELFIELD: And with – sorry. I just jumped. Yes. Sorry. Yes. And then over at 180 Brisbane starts with One Form, finishes with FTF Bricklaying.

PN271

THE DEPUTY PRESIDENT: Yes.

PN272

MR BELFIELD: And Southpoint, Wideform, Statewide and Shamrock Civil.

PN273

THE DEPUTY PRESIDENT: Yes.

PN274

MR BELFIELD: So the order is sought against employees of the subcontractors identified in those clauses. The order is sought for a period of two months, approximately. So from 3 November to 24 December. And I would just highlight for Mr Cousner’s benefit, given his last questions to the last witness, that the order does not remove the right of an employee to cease work for reasons of imminent risk where they reasonably believe they have imminent risk. So it’s a standard clause. So that the right to take protected action is not removed by such an order. So that’s the proposed order, Deputy President.

PN275

THE DEPUTY PRESIDENT: Mr Belfield, can you tell me, on the basis of the evidence before me what would be the grounds for making an order of that length of time, given that the evidence is – and I accept there may be some question about what time people are going to start work on Thursday. But where is the evidence that you need a two month order to deal with the situation that’s currently in place, given the recent Full Bench decision in respect of the length of an order and that it has to be reasonably directed to stopping industrial action? There isn’t any evidence – I put to you there is no evidence on an ongoing series of incidents, as was recently - - -

PN276

MR BELFIELD: I accept that.

PN277

THE DEPUTY PRESIDENT: - - - the case on the QUT site. This is a, certainly arguably, unprotected industrial action but where is the evidence that there is some ongoing skirmish that would require the longer order?

PN278

MR BELFIELD: Well, Deputy President, I take the point. In the context of the evidence it may seem excessive. We, however, have got reservations about this claim, which we say will desist. So far we’ve attempted to resolve it by just talking to the Union representatives. Again, I don’t wish to lead any evidence from the bar table however we do seek some comfort, given that these are four sites that were ambushed last Friday morning. And we do seek some comfort that we can settle the jobs down. I wold dare say that very few of the employees on these projects have any idea about why this dispute is happening or possibly have no interest. However, we do require some confidence that we can work for some time, albeit four/five weeks, if you see fit that the - - -

PN279

THE DEPUTY PRESIDENT: But I don’t have any idea either, Mr Belfield. All I know is that there’s no evidence that there’s some ongoing dispute between Watpac and the CFMEU about an issue of delegates other than what was said – I accept there’s evidence that people said this is the issue but I don’t have evidence there’s any ongoing disputation about that.

PN280

MR BELFIELD: Well, Deputy President, the fundamentals of these claims within this industry, where the Unions do seek to place particular delegates under the principle of contractors’ responsibility, is well known. These can last for some time. The issue I believe you’re alluding to is whether or not it would be regarded as excessive in the circumstance. Now, there is some concerns from your point of view that this could be excessive, given that there’s no evidence that there is an ongoing campaign. But we say that it’s very much part of the process of seeking orders before this commission that orders give us some comfort that we can manage these discussions without the resort to wildcat strikes. And there’s no other way to describe this.

PN281

The company was punished for not conceding. And, you know, I don’t want to be here in four weeks’ time with the CEO of Watpac giving evidence because we’ve got further disputes – further problems because the company has said to the Union, “No. You’ve got your delegates. We’re not gonna give you any more. Be satisfied with that.”

PN282

THE DEPUTY PRESIDENT: I’m not suggesting you do bring the CEO of Watpac, Mr Belfield. What I’m suggesting is if you’re going to seek a lengthy order and you’re going to say there’s an ongoing dispute I would have thought there would be more and better evidence about what the nature of the dispute is other than a few delegates told supervisors onsite that this is what it’s about. So - - -

PN283

MR BELFIELD: Well - - -

PN284

THE DEPUTY PRESIDENT: I mean, the order can’t be based on conjecture. It can only be reasonably directed to unprotected industrial action and stopping it. And, at best, the unprotected industrial action took place on Saturday. There may be further lost time on Thursday. And then there isn’t any evidence about a dispute that could go on past – or the likelihood of that.

PN285

MR BELFIELD: Well, Deputy President, I won’t request that you seek to cross the Full Bench’s reasoning in the matter of John Holland and we’re not asking for something to be, in that sense, so excessive as to be unnecessary or in fact completely inconsistent with the requirements of the Act. We seek an order to have the workforce resist the temptation – or in this case we believe the encouragement of the Union officials to stop work whenever a long weekend is due. Now, I can look at the rostered days off for the next two months and there is one on 1 December. So, Deputy President, we could well be facing a similar pressure point on 28 November for there being another – what we call a long weekend.

PN286

So we’re concerned that, you know, the – it’s well known in this industry, Deputy President, that when you front a group of workers when there’s a long weekend – or in this case a super super long weekend coming up. It’s far easier to get their support to walk out the gate – and this was done amazingly quickly and efficiently on Friday. In fact, it’s so concerning that this could be done – basically the rug ripped out from underneath the feet of the project managers on each of those four sites. No warning. No notices given by the Union officials. Just up they came, whipped the guys off the site and they – well, we’ve got no confidence that this isn’t going to be used next Friday; Friday after that; Friday after that.

PN287

So, Deputy President, your discretion is obviously sought and welcomed. And if you see fit that the order be for a shorter period of time then I would ask that it be to 2 December so that we at least get over that hurdle of the next RDO long weekend. Because the temptation, as I think we’ve shown, where hundreds of workforce of the Union have left – the CFMEU have walked off the site after a brief meeting on each project. This is very concerning but we need to show the workforce that there are requirements under the Act for consultation, for negotiation and for employees to keep on working while their Union represent them lawfully.

PN288

We are quite concerned at the nature of this dispute and how it came about on Friday. So, Deputy President, if I could just – there’s a point I noted on my copy of the draft order, at paragraph 7, “Further, as this interim order” – obviously it’s not an interim order anymore. And if I may, given the point you raise, I would – you know, there is a significant period or block of RDOs which commence on 22 December. So, look, that’s the Christmas break. They’re not back till sometime in early January. But, again, I would concede that we don’t wish to press onto that point but I would ask that the order be at least till – or be until Tuesday the 22^nd. The rationale being that we have a number of weekends and that is the last long weekend before the Christmas break.

PN289

If I may, Deputy President, just make some comments about the evidence. I think it’s quite instructive that Mr Cousner had the opportunity to challenge – I’ll just get my – sorry. To challenge Brad Ross in respect to his evidence at five of the statement but - where the CFMEU delegate, Trevor Curreen, responded to the question from Mr Ross about, “What is this about?” And the response was that, “If I wanted to know what was going on then I should ring Michael Ravbar.” So given that Mr Chad Bragdon failed or didn’t see fit to discuss the matter of the dispute, didn’t have the courtesy to speak to Mr Ross, the Union delegate for the project simply said, “Well, you should ring Michael Ravbar if you want to find out what’s going on.” Now, I would say that is a most unusual response in a typical site-based dispute.

PN290

Again, I will remind that this is about four sites. There was a simultaneous stoppage. We have Southport site. Its usual start time is 6.30. The meeting that was arranged by the Union, in this case of Mr Mark O’Brien, that was at 6.30. After that meeting was complete no CFMEU members returned to that job. At 180 project the usual start is at 6.30 am. The meeting time that was called by the Union was at 6.30 am with Mr Chad Bragdon, with the assistance of his delegates, I understand, spoke to that meeting. And at Springfield - - -

PN291

MR COUSNER: Sorry, Deputy President. That’s not in the evidence and perhaps we should maintain - - -

PN292

MR BELFIELD: Well, Mr Chad Bragdon was present in respect to that meeting. At Springfield the normal starting time is 6 am. The meeting time was at 6 am. Dennis Mitchell from the CFMEU attended that project.

PN293

MR COUSNER: Your Honour, that’s also not in evidence.

PN294

THE DEPUTY PRESIDENT: Well, we’ve got the - - -

PN295

MR BELFIELD: Dennis.

PN296

THE DEPUTY PRESIDENT: We’ve got the statement that Mr Bragdon was seen talking to workers at East Coast Concrete Contractors on Ann Street opposite the site. He walked to King George Square. So - - -

PN297

MR COUSNER: Yes. You’re - - -

PN298

THE DEPUTY PRESIDENT: - - - there he is at 180 Brisbane.

PN299

MR COUSNER: Yes, Deputy President. I don’t take issue Mr Bragdon was onsite.

PN300

THE DEPUTY PRESIDENT: Yes.

PN301

MR COUSNER: There is no evidence that he addressed the meeting, which is a distinction I’ll take you to in my own submissions.

PN302

THE DEPUTY PRESIDENT: Yes. All right.

PN303

MR COUSNER: But also my friend makes the point that Dennis - - -

PN304

THE DEPUTY PRESIDENT: Well, he was talking to workers.

PN305

MR COUSNER: Yes.

PN306

THE DEPUTY PRESIDENT: According to the evidence.

PN307

MR COUSNER: Deputy President, my friend also makes the point that Dennis Mitchell was on the site. That’s not identified in the evidence either. I put that - - -

PN308

THE DEPUTY PRESIDENT: And, Mr Belfield - - -

PN309

MR BELFIELD: I think he’s making a mistake. I’m not talking about that site. Not on the same site.

PN310

MR COUSNER: No. Your Honour, my friend - - -

PN311

THE DEPUTY PRESIDENT: Mr Mitchell was on another site, was he?

PN312

MR COUSNER: Mr Marshall is not identified at all. A man named Dennis is identified.

PN313

THE DEPUTY PRESIDENT: Well - - -

PN314

MR COUSNER: That’s in the statement of Mr Smith.

PN315

THE DEPUTY PRESIDENT: Yes. So - - -

PN316

MR BELFIELD: Well - - -

PN317

MR COUSNER: I will just ask my friend to be accurate in his recounting of the evidence. Yes.

PN318

THE DEPUTY PRESIDENT: So all we can say, Mr Belfield, is there was a person called Dennis who Mr Smith understood to be an official of the CFMEU - - -

PN319

MR BELFIELD: Yes. The - - -

PN320

THE DEPUTY PRESIDENT: - - - on that site.

PN321

MR BELFIELD: And we believe the only Dennis that works for the CFMEU in Queensland is Dennis Mitchell. He has a right of entry permit issued in that name.

PN322

MR COUSNER: Also not in evidence. And I don’t know whether that’s even accurate, your Honour.

PN323

THE DEPUTY PRESIDENT: Yes. All right. Well - - -

PN324

MR BELFIELD: Well, be it as it may, there was someone from the CFMEU, we understand from the evidence, at Springfield. The meeting was held at 6 am, which is the normal starting time. At the Gold Coast Private Hospital the usual starting time is 6 am. The meeting was started at 6 am. Mr Scott Vink was in that meeting, in Mr Roberts’ evidence. This, again, was uncontested. Mr Roberts asked Scott Vink what he was doing and that Scott said he was there because he was going to talk to all of his members, et cetera. So I don’t think it’s controversial to say that these Union officials were at the scene; were speaking to the members of the CFMEU. They all turned up at the sites in question in an unusually co-ordinated way.

PN325

So it’s rare that you will see, Deputy President, an industrial dispute that is being generated by some local issue – say, Southport or 180 or Springfield. Where, in response to that local issue, you have Union officials holding meetings at exactly the same time at four different locations on the same day. On top of that, Deputy President, we have one of the Union delegates at 180 suggesting that the manager of Watpac ring Mr Michael Ravbar, the State secretary, if he wanted to know what was going on. It’s highly probable that Mark O’Brien, Chad Bragdon, Scott Vink and an other organiser called Dennis had been in discussions; had either spoken to each other.

PN326

But it’s just beyond logic that they would have all coincidentally turned up on the same day to hold a meeting and it was about local issues. It’s just not the case law. This is the organising that we say is shown by the evidence. If it’s not organising then I find that the coincidence is nearly biblical. Just in relation to, again, the behaviours of the officials, it’s confrontationist. There’s no notice of entry being given by the Union officials. There has been, in most cases I believe, no sign-ins. In the case of Mr Scott Vink, he refused to leave the site after being requested by Stuart Roberts, as Mr Roberts was perfectly entitled to do.

PN327

So this is an aggressive approach by the Union officials to indicate that they’re there and they’re there to do something that the company should sit up and take note of. The same you see happened at Springfield. He refused - the organiser that turned up refused to say what it was about. After the meeting he left the site without reporting back to Watpac, the courtesy to say what it was about, and the company was left in his wake. Mr Chad Bragdon also – in this case, though, he took the workers off the site. So it appears that he didn’t challenge the right of entry requirements. And in the case of the Southport project Mr Mark O’Brien was outside waiting for his members to meet him and there was a meeting and then they all left.

PN328

So, Deputy President, these four meetings, in my submission, were co-ordinated. These four meetings were not done for a particular local issue at any one of those projects. It is a bigger issue between the head of the Union or the senior level of the Union and Watpac over the delegates. This is a squeeze, as we call it. And we want some protection. The issue of whether the action is happening. Deputy President, I’ve been in here a few times where we’ve gone past the day – so Friday – we’re now past the day. We’re now past Saturday, where you could possibly argue that that would have been a day of industrial action but we won’t bother chasing that either. We now have three RDOs.

PN329

So come Thursday morning is the usual return. The usual working time is identified by the EBAs. What we’ve got in evidence is that not one of the managers could say with any confidence that normal work will resume. In the case of Mr Smith his words were that, “a view to returning to work” and he said that he didn’t mean that that was a return to 6.30 am. It could be some time later. He had no confidence in his evidence; that that’s why he used those vague words “a view to returning to work.”

PN330

In relation to 180 Brisbane Mr Ross said that – and, he being the last witness, we went through some detail about what is a safety walk and what isn’t. And Mr Cousner attempted to draw Mr Ross that every worker would have prima facie – I think that’s what he’s working towards. Prima facie a reasonable belief in imminent risk. I think that’s a nonsense. Sit in the sheds is just basically a sign that the Union is going to go around and going to control the job. But Mr Cousner did get an answer that the workers have no grounds to reasonably believe that there was imminent risk. So what - - -

PN331

MR COUSNER: Deputy President, that’s not in the evidence whatsoever. My friend has misquoted me on a number of occasions now. I’ve let them go. In relation to this particular matter. That is not the evidence whatsoever in relation to what that witness said. My friend should keep his comments to what is actually in evidence and not try and be inflammatory towards myself.

PN332

THE DEPUTY PRESIDENT: It’s a fair point, Mr Belfield.

PN333

MR BELFIELD: I see. Okay. All right.

PN334

THE DEPUTY PRESIDENT: The Union hasn’t put on any evidence that indicates it’s going to contend that employees had an imminent risk or a reasonable concern that their health and safety is at imminent risk. They haven’t contended that at all, as I understand it.

PN335

MR BELFIELD: Well, I’m pleased for that because that’s the position that I argue, that the safety walk that is proposed for 180 with everyone directed to sit in the sheds – and not by other contractors, mind you. By the delegates and I would say the officials, which is the normal procedure. That that can go on for an hour to half a day. And Mr Ross has no idea how long that’s going to go. So just on that alone, Deputy President, that’s industrial action under the Act. That’s pending, probable, likely. It’s there. It has been said in many words by the delegate, Mark Henry, that that’s what’s going to happen. And I’m not putting words in Mr Ross’ mouth to say that he can’t say – and it would be laughable to say that everyone was going to start working at normal starting time of 6.30. That’s clearly not the case.

PN336

The evidence is that there will be a request or pressure for workers to sit in the sheds while there is a committee walkabout. Whereas the usual processes for the committee is to examine the site whilst work continues. Safe and appropriate work is undertaken. So that the presumption that there is a site-wide imminent risk on Thursday at 180 is just simply not acceptable and - - -

PN337

MR COUSNER: Deputy President, again, we’re back to the same point. It’s not in evidence and it’s inflammatory. It’s a completely baseless submission to make. There is no suggestion whatsoever that there was an imminent risk. Nor was it argued nor will it be argued.

PN338

MR BELFIELD: Well - - -

PN339

THE DEPUTY PRESIDENT: But it is arguable, Mr Cousner, that if the employees sit in the crib sheds at their normal start time on Thursday morning while there’s a safety walk that’s not agreed, not authorised and not being conducted jointly with management that that will be industrial action.

PN340

MR COUSNER: I accept that but we’re here to deal in evidence, Deputy President, not in hypotheticals - - -

PN341

THE DEPUTY PRESIDENT: Well, that’s the evidence that on one site that that’s what the company has been informed. There will be a safety walk on Thursday morning which could take anything from one hour to the whole day.

PN342

MR COUSNER: Yes. And at no point in that witness’ evidence did he say that that was necessarily unauthorised. He had opportunity to say that it was unauthorised.

PN343

THE DEPUTY PRESIDENT: Well, I think, Mr Cousner, he made the point – the witness made the point that that’s exactly what it would be because you don’t need to do it because there’s a weekly safety walk in any event and this will not be an authorised usual safety walk. It will be one conducted at the behest of the Union. You do them on an impromptu basis without any warning and they can go anything from one hour to the whole day. That’s what I think the witness’ evidence was.

PN344

MR COUSNER: Well, Deputy President, I don’t want to interrupt my friend during his submissions but, respectfully, I don’t think that was the case of the evidence. I’m happy to go in greater depth to that when the time comes, unless you want me to do so now?

PN345

THE DEPUTY PRESIDENT: No. But, Mr Belfield, it’s nowhere contended that the CFMEU has not contended anywhere that I see or nor has it called evidence that this is a dispute about safety. And it’s not seeking to defend this on the basis of imminent risk to health and safety of any employee, as I understand it.

PN346

MR BELFIELD: I accept that. At no point did I seek to suggest that that was the position that it was on cross-examination.

PN347

THE DEPUTY PRESIDENT: Well, you did. You keep saying, “I’m sure Mr Cousner’s going to submit there’s an imminent risk to health and safety” and there’s not.

PN348

MR BELFIELD: I think his point in his cross-examination was that there was enough uncertainty – and, again, I take some liberty here using my words.

PN349

THE DEPUTY PRESIDENT: Yes.

PN350

MR BELFIELD: That there was enough uncertainty given the period that the site had been shut. Enough uncertainty in each of the workforce. And I think that what he was leading to was trying to get the witness to discuss that it would be normal, if not usual, for workers not to want to start work after three RDOs plus a weekend. That - - -

PN351

THE DEPUTY PRESIDENT: And I don’t think the witness conceded that at all to the contrary. So - - -

PN352

MR BELFIELD: I know. And I accept that. And I simply wish to make that point and I won’t waver. So that’s in respect to 180. In relation to Southpoint, again the evidence was from Mr Hayes that he was informed that there would be another meeting on Thursday morning. And given the previous three statements, that I just referred to, this would seem quite consistent. This isn’t as if it’s an unusual event and this is one out of four sites which are doing something different. It appears that there would be another meeting on Thursday morning. Mr Hayes didn’t know whether it would be at 6.30 am and he doesn’t know how long it would be for.

PN353

He did say it could be held again at the same time as last week and I would say that that’s reasonable for me to put that there would be a Union meeting or a workers meeting at 6.30 am on that project. That’s a starting time certainly within normal working hours. So we’ve got this possibility, from the evidence that was put, that there will be a meeting on Thursday morning and that it is probable that it would be held around normal starting time and it would be in relation to – and I use the words where he says, “any further developments” a form of a report back. It’s not associated with a site safety walk but it is again another meeting to be held on Thursday morning, again at one of the four sites.

PN354

So, Deputy President, we’ve got four projects all stopped at the same time on Friday. They’ve stopped for the same duration and they all appear to have an arrangement will commence sometime Thursday morning, albeit a meeting, albeit a safety walk with men in the sheds. But in any case, Deputy President, it is probable that there will be industrial action. Now, that, Deputy President, is, by definition, where the stoppage is not protected action. So there has been no suggestion, other than the little bit we talked about with 180 – there has been no suggestion that any stoppages last Friday or the one coming, we predict, sometime on Thursday will not be protected action either.

PN355

So finally, Deputy President, you do have jurisdiction. The legislation mandates that should you find industrial action happening or pending probable or organised that you issue an order. We say that the evidence is that the Union did organise the stoppages on Friday; that the Union is organising and continue to organise industrial action which will appear in one form or another on Thursday morning at the four sites for various time periods. But we say it’s there. It’s going to occur. Therefore you must issue an order to stop that industrial action. We believe the period with the amended timeframe would be reasonable and it would allow each of those projects to continue uninterrupted whilst whatever ongoing differences the parties have on the matter of delegates can be discussed without resort to industrial action. As the commission pleases.

PN356

THE DEPUTY PRESIDENT: Thank you, Mr Belfield. Mr Cousner.

PN357

MR COUSNER: Deputy President, it’s awfully quiet in here all of a sudden.

PN358

THE DEPUTY PRESIDENT: The airconditioning has gone off, I think. That’s why.

PN359

MR COUSNER: That must be it. Deputy President, I assume you have a copy and have had an opportunity - - -

PN360

THE DEPUTY PRESIDENT: I do.

PN361

MR COUSNER: - - - of the written submissions. I repeat and rely on those. I won’t labour the points that been addressed in my written submissions. I’ll take you to some of the essential themes of them as there is some commonality in the arguments across the sites. Deputy President, I agree with my friend that if it appears that the criteria in subsection (1)(A) through (C) are met that an order must be made but that has to be based on the evidence and the evidence simply is not there. The evidence here in relation to subsection (1)(A) is that it is happening, that it’s contemporaneous language. That is to say that if the industrial action is not happening at this point in time then it cannot be said that industrial action is happening.

PN362

Now, it sounds almost comical to say but on account of the fact that, and it is uncontroversial, that today, tomorrow and Wednesday are rostered days off under the industrial instrument that there is no expectation for work to occur on those days. It cannot be said that a worker not performing work on those days is partaking in industrial action therefore the jurisdiction under that subsection simply isn’t there. It’s not on the evidence. And I don’t even think my friend has tried to put an argument that is particularly persuasive about the fact that industrial action is happening.

PN363

Deputy President, the second criteria, as you would be well aware, is threatened, impending or probable. In my submission, Deputy President, there is no threat of industrial action to occur. In each of the sites there has been evidence that there will be a return to work or that there will be some type of forum prior to the commencement of work. I’m at a loss as to how that is a threat of industrial action or how that makes industrial action impending or probable. If anything it’s the opposite, that the workforce will return to the site. It is, on the evidence of the applicant, that at two of the sites, namely 180 Brisbane and the Gold Coast Private Hospital, that there will be a return to work on 8 November.

PN364

Now, my friend can stand here and try and spin that evidence any way he likes but – “Well, we’re not sure that work will commence at 6.30 am therefore industrial action is threatened on the day.” But his own evidence is that work will return on 6 November on those two sites. If move to the other two sites, Southpoint and Springfield, Deputy President, there’s no question that there are forums that are going to take place, be it a meeting on one and a site safety walk on the other. I beg your pardon. I withdraw my earlier submissions. It’s 180 Brisbane – the evidence is that there will be a safety walk. I beg your pardon.

PN365

There is evidence that there will be a return to work at Springfield and the Gold Coast Hospital. There is evidence that there will be a site meeting at Southpoint and a site safety walk at 180 Brisbane. Not one of the witnesses, when I asked them if they had any reason to suspect that work would not commence on those days, could say confidently that they didn’t think that work would recommence on those days. They gave evidence that they weren’t sure when it would start but none of them could say that it wouldn’t. In my submission, Deputy President, there can be no confidence that there were any threats of industrial action whatsoever.

PN366

You made comment earlier to my friend in relation to what the dispute is and my friend went on a few tangents. One being that there was a dispute about delegates. The next being that there was – I think he tried to fashion an argument about a dispute about RDOs, that there were threats of industrial action relating to RDOs and RDO weekends. And then I think he attempted to take Christmas away from some of these workers. Those are disputes – rather – sorry. I withdraw that. Those are submissions not based in evidence. There is evidence on two of the sites that there was mention about an issue relating to delegates and no evidence whatsoever why the workers withdrew their labour on the other two sites whatsoever.

PN367

Now, if this was a co-ordinated strike and this was a co-ordinated event that related to one specific issue then the evidence would be unequivocal that that issue is what animates this. There is no evidence of any prolonged discussion or issue in relation to this, despite the opportunity for my friend to lead that evidence. There has none before this commission. There is no evidence that this relates to RDOs or any other issue. Safety or anything. This is a withdrawal of labour on Friday that is not continuing to occur today as those workers are lawfully doing whatever it is that they prefer to do on an RDO.

PN368

Lastly, Commissioner, the – rather, the last criteria is being organised. Now, in recent decisions by Senior Deputy President Richards, that I refer to in my written submissions, he states that:

PN369

Mere presence is not enough without any evidence of the conduct of any Union official or any person that may be attempting to organise industrial action.

PN370

This commission cannot be satisfied that the action is being organised. The fact that my friend wants to try and manufacture this into that there was four sites that had four meetings at the same time. That’s evidence of it being organised. Well, if my friend wishes to do that then that would mean that every site that has a meeting prior to work commencing in Brisbane would be evidence of industrial action being organised and that’s simply not logical. It’s nonsensical.

PN371

THE DEPUTY PRESIDENT: If there was mere presence on one site, Mr Cousner, that would be one thing but mere presence on four sites all at the same time, all where the same principal contractor is conducting the site, is passing strange, don’t you think?

PN372

MR COUSNER: Well, Deputy President, the fact that there was meetings with Watpac employees and employees of subcontractors of Watpac across the sites is not strange at all. Meetings occur all the time.

PN373

THE DEPUTY PRESIDENT: Not all at the same time on the same day and then they all cease work at the same time and don’t work on a Saturday when they would usually work. So they cease work on the Friday; didn’t work on they Saturday when they would usually work. Is that really such an – I mean, to me that’s a very very strong coincidence, Mr Cousner.

PN374

MR COUSNER: Perhaps it is, Deputy President, but without evidence of the conduct of those Union officials it cannot be said that they’ve organised industrial action.

PN375

THE DEPUTY PRESIDENT: But, Mr Cousner, if they didn’t organise industrial action they could be here to tell me that. You know, again, the difficulty here is that they were at the site; they were seen talking to workers; the workers left the site. No-one from Watpac can give me any evidence about what happened at the meetings because they’re arguably CFMEU meetings conducted off the site. And if the officials weren’t organising it then why can’t they tell me that themselves?

PN376

MR COUSNER: Well, Deputy President, respectfully, the onus is on my friend to prove his case. Part of his case is that industrial action has been organised. He hasn’t been able to lead any evidence whatsoever about the conduct of these Union officials inside these meetings, which is necessary to give you the requisite comfort that industrial action has been organised. And he has failed to do that. What those organisers – rather, there is no evidence for those organisers to refute as there was no evidence of what they did.

PN377

THE DEPUTY PRESIDENT: Well, Dennis unknown could tell me, “I wasn’t there.” The one Dennis employed by the CFMEU as an organiser could say he wasn’t there at the site. Others could say, “We were there but we didn’t organise anything.” Because the evidence places three, and arguably four, of your full-time paid officials at four different sites at the same time on the same day and thereafter work ceased.

PN378

MR COUSNER: Yes, Deputy President. Without any evidence of what happened in those meetings. And without that you simply cannot be sure that industrial action has been organised.

PN379

THE DEPUTY PRESIDENT: And I don’t know how anyone could ever get any evidence of what happened at a meeting, Mr Cousner. How can - - -

PN380

MR COUSNER: Well, there was a number of attendees at all of those meetings. Some of which are employed by the applicant. None of them are her to present evidence.

PN381

THE DEPUTY PRESIDENT: Yes. All right.

PN382

MR COUSNER: Deputy President, as I say, I repeat and rely on my written submissions. I won’t labour those points any further. If you are against me in my arguments and you are minded to make an order, as you’ve alluded to earlier, the term of the order in itself, by my friend, is, frankly, ridiculous. There is no evidence before you of an ongoing dispute – a protracted dispute. And in fact there is evidence before you that on most of these sites that there will be a return to work on Thursday, albeit some of those sites after some level of forum.

PN383

If any order is to issue I would submit primarily that that order should only continue until close of business on Thursday. But for the purpose of round numbers one week would be more enough to ensure that these issues, that my friend hasn’t really been able to identify, have been resolved. Unless I can be of further assistance, Deputy President, those are my submissions.

PN384

THE DEPUTY PRESIDENT: Thank you, Mr Cousner. Mr Belfield.

PN385

MR BELFIELD: Just one point. Mr Cousner made a submission that there was no evidence about particular issues at each site drawn. And I think what he’s getting at is, well, why would the Union be involved when there’s no particular issue at each site. Look, what he’s actually putting is actually far more dangerous because he’s saying that there was no purpose to these meetings; there was no reason. They just decided, as a group of CFMEU members, to leave the site and they didn’t have any reason to do it. And I’m worried about if that’s the state of mind of the workers, where they seem to be so prone to just taking wildcat industrial action or unlawful industrial action – call it as you may. Then this certainly needs an order of the type that we requested. If the commission pleases.

PN386

THE DEPUTY PRESIDENT: I’ll indicate I’m going to stand the matter down for 30 minutes and I’ll be in the position to issue a decision.

<SHORT ADJOURNMENT [6.12PM]
<RESUMED [7.12PM]

PN387

THE DEPUTY PRESIDENT: I can indicate that I’m a position to deliver a decision but I reserve the right to edit it and to include more complete reasons for reaching this decision and will issue those full reasons in writing hopefully tomorrow if not on Wednesday. In the present case it appears that industrial action by one or more employees that is not protected industrial action is happening with respect to employees of Watpac Construction Pty Ltd and its subcontractors on each of four sites, being 180 Brisbane, the Gold Coast Private Hospital, the Mater Private Hospital Springfield and Southpoint at 271 Grey Street, South Brisbane.

PN388

I base this conclusion on the following evidence. Employees of Watpac and its subcontractors on those four projects, which are managed by Watpac, who are members of or are eligible to be members of the CFMEU, did not commence work on each of those projects on 31 October 2014 and did not perform scheduled overtime work on Saturday 1 November 2014. There is evidence that the employees will resume work at various points and subject to processes beyond the control of Watpac on Thursday 6 November 2014. There is also evidence that the time at which work will be recommenced on each site is unknown and also beyond the control of Watpac.

PN389

It is improbable, in my view, in those circumstances that work will commence at the ordinary starting time on the four projects on 6 November. There is no evidence that employees have a reasonable concern about an imminent risk to their health and safety and no submission to that effect from the CFMEU or otherwise on behalf of the employees concerned. There is some evidence that the employees are taking industrial action in relation to a dispute between Watpac and the CFMEU about the employment of delegates by Watpac on its sites. The evidence about the time at which employees will return to work and what meetings or other processes will be required before they do is unclear.

PN390

In those circumstances I am satisfied that the industrial action is threatened, impending or probable. I am also satisfied that the industrial action is being organised by the CFMEU. I base this conclusion on uncontested evidence that officials of the CFMEU attended three of the sites at or around the same time on the morning of 31 October 2014 and had discussions with at least some employees. I am also of the view that it is more probable than not that an official of the CFMEU attended the fourth site at or around the same time. In those circumstances it is probable that the CFMEU is organising the industrial action.

PN391

Watpac seeks an order for a period of two months and in oral submissions amended its application to seek and order for a period of one month. I am not satisfied in the circumstances of this case that section 418(1) requires an order that has a lengthy period of operation. There is a suggestion of an ongoing dispute about delegates however that evidence falls short of establishing that there is an issue that would justify a lengthy order on the basis that industrial action is threatened, impending or probable on a long-term basis.

PN392

Watpac is a large company with significant resources. If there is a dispute of the magnitude that makes it probable that industrial action is impending or probable such that a one or two month order is warranted I would have expected to have had clear evidence on this point to justify such a lengthy order. There is no evidence that there have been previous instances of industrial action in relation to such a dispute and I’m not prepared to issue an order of one or two months duration on the basis of submissions from the bar table about the nature of the dispute said to be the basis for making such an order.

PN393

Accordingly an order will issue directed to the CFMEU, its officers, delegates, employees and agents and to the employees of Watpac and the subcontractors on the four projects that industrial action stop or not occur and that order will have a period of operation from 2 pm on Friday 31 October until 5 pm on Monday 10 November. The order will be now given to the CFMEU and the Master Builders on behalf of Watpac and there are requirements in that order for substituted service to be effected on the employees of Watpac and the subcontractors. On that basis I’ll adjourn.

<ADJOURNED INDEFINITELY [7.18PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

BRIAN HAYES, SWORN PN16
EXAMINATION-IN-CHIEF BY MR BELFIELD PN17
EXHIBIT #1 WRITTEN STATEMENT OF MR BRIAN HAYES PN26
CROSS-EXAMINATION BY MR COUSNER PN38
THE WITNESS WITHDREW PN73
STEWART ROBERTS, SWORN PN77
EXAMINATION-IN-CHIEF BY MR BELFIELD PN77
EXHIBIT #2 WRITTEN STATEMENT OF MR STEWART ROBERTS PN85
CROSS-EXAMINATION BY MR COUSNER PN95
RE-EXAMINATION BY MR BELFIELD PN139
THE WITNESS WITHDREW PN143
DANIEL SMITH, SWORN PN144
EXAMINATION-IN-CHIEF BY MR BELFIELD PN144
EXHIBIT #3 WRITTEN STATEMENT OF MR DANIEL SMITH PN147
CROSS-EXAMINATION BY MR COUSNER PN148
THE WITNESS WITHDREW PN165
BRAD ROSS, SWORN PN185
EXAMINATION-IN-CHIEF BY MR BELFIELD PN185
EXHIBIT #4 WRITTEN STATEMENT OF MR BRAD ROSS PN187
CROSS-EXAMINATION BY MR COUSNER PN194
THE WITNESS WITHDREW PN251