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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052248
SENIOR DEPUTY PRESIDENT RICHARDS
AG2015/3647
s.210 - Application for approval of a variation of an enterprise agreement
Application by LCR Group Pty Ltd
(AG2015/3647)
LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (ACN: 095 626 798)
Brisbane
10.11 AM, MONDAY, 3 AUGUST 2015
PN1
THE SENIOR DEPUTY PRESIDENT: Good morning everyone. Please take a seat. Perhaps if I can just take some appearances, thanks.
PN2
MS S McCARTNEY: Good morning, your Honour. Ms McCartney, initials S. I'm a solicitor for Clayton Utz. I seek leave to appear for the applicant. I seek leave to appear. I understand that that s not objected to any more.
PN3
THE SENIOR DEPUTY PRESIDENT: No. Yes, thanks, Ms McCartney.
PN4
MR A BORG: Borg, initial A, for the CFMEU and I confirm that we raise no objections in relation to seeking leave to appear. I haven't raised it with my friend, but I wanted to raise something preliminary here, I was just a bit preoccupied with some of the notes that came before me just now. I just wanted to deal with the preliminary point about some fresh evidence which has come to light. We therefore seek an which would be critical to the determination of this matter. We therefore seek an adjournment of a few days in order to properly be able to bring that evidence before this Commission so that it may rely on that evidence, given its critical nature, in the determination of this matter, as I said.
PN5
THE SENIOR DEPUTY PRESIDENT: Ms McCartney, what do you know about this? What s your view about this?
PN6
MS McCARTNEY: I know nothing about it other than what I ve just heard and I wouldn't seek to understand what that evidence is, particularly as to how it might impact. We've flown witnesses down from Roma and Chinchilla.
PN7
THE SENIOR DEPUTY PRESIDENT: I think there were requests for personal attendance as well from yourself.
PN8
MR BORG: Yes, that s quite right and I do understand the inconvenience that the company might have effectuated in order to meet that requirement, your Honour. However, what I do say is that we do have some very important evidence which has come to light only this morning and I feel that as a matter of procedural fairness we should be given an opportunity to be able to raise those matters and bring those before the Commission for final determination.
PN9
THE SENIOR DEPUTY PRESIDENT: Is this by way of a new witness?
PN10
MR BORG: Yes, I'm told. Yes, your Honour.
PN11
THE SENIOR DEPUTY PRESIDENT: You say it s critical to your case.
PN12
MR BORG: Yes. It goes to some of the heart of these matters, your Honour, particularly the evidence ‑ ‑ ‑
PN13
THE SENIOR DEPUTY PRESIDENT: Some of the, sorry?
PN14
MR BORG: It goes to the heart of some of the matters particularly raised by Mr Partington.
PN15
THE SENIOR DEPUTY PRESIDENT: As to whether or not the South-East Queensland operations are still operative or is it that part of his evidence or about how the employees ‑ ‑ ‑
PN16
MS McCARTNEY: Sorry, Commissioner. I apologise. But Mr Partington is actually in the Commission.
PN17
THE SENIOR DEPUTY PRESIDENT: Yes.
PN18
MS McCARTNEY: I might ask him to step outside while we have a discussion.
PN19
THE SENIOR DEPUTY PRESIDENT: Yes, sorry. I might just finish the appearances off before Mr Borg redirected. Permission to appear is granted, not only is it uncontested but also the reasons given that there are requirements here for cross‑examination, the role of a legal practitioner would be useful in adding to the efficient conduct of the matter. That said, sorry, go on.
PN20
MR BORG: Yes.
PN21
THE SENIOR DEPUTY PRESIDENT: Sorry, this attacks Mr Partington s evidence at some critical angle.
PN22
MR BORG: Yes, it does, your Honour. It goes to what might be behind why the company is seeking these variations, which goes to Mr Partington s credibility which, therefore, would enable the Commission to more properly assess his evidence and to more properly, therefore, assess the issues at stake, namely whether or not genuine agreement had actually been reached, noting that he does provide evidence which goes to that particular question as well, but that evidence of credit would be overriding and speak to all of the issues in the case.
PN23
Obviously, what I say is that it s a fairly critical point of evidence. I must say from the outset that in an atmosphere of alleged and I say alleged employer reprisals, the CFMEU has had difficulty in gathering evidence, but what I say is that, notwithstanding, this morning some fresh evidence has come to light and we really do feel that those matters should be before the Commission.
PN24
THE SENIOR DEPUTY PRESIDENT: Let s deal with it as a hypothetical first of all. There are a number of options; one is to adjourn this matter and hear no evidence and move the matter to another date when all of the evidence can be heard together. That's option A. Option B is that we hear as much as we can hear today and deal with all the witnesses that we have here today and then take this additional witness by telephone later in the week perhaps so as to mitigate the need for people to again travel, as they have had to do today, and that would also necessitate a warrant, I think, Ms McCartney, leading evidence in response to that material as well, quite possibly through recalling Mr Partington.
PN25
MR BORG: I understand ‑ ‑ ‑
PN26
THE SENIOR DEPUTY PRESIDENT: So there s two options there, A and B. I just don't know option C, of course, is I just ignore your request and say you should have presented your case in accordance with directions and here we are today. So that s option C, unpalatable for you, of course, but let s just discuss those three options. I think they're the three. I don't think there s a fourth that I can think of.
PN27
MR BORG: No, I don't think so. But I would say no doubt option C would be the course of most resistance, but ‑ ‑ ‑
PN28
THE SENIOR DEPUTY PRESIDENT: I mean, there is a fourth option. The fourth option is to recall everyone on the second day if there is a second day so it s a variant to option B. I just don t want to have to cause those additional transaction costs.
PN29
MR BORG: I do understand and I do see the reasoning for your suggestion A, namely, that we do some things today, but then we come back to the Commission and continue on another day, if we are to have another day. What I say to that, however, is that given the centrality of this evidence, it would just produce a disjunctive hearing and a disjunctive procedure. There might be matters arising out of that evidence that I would require today to be able to cross‑examine on. So I would see it as appropriate therefore that we see everyone all in one day, nothing the inconvenience that that may cause to the applicant and I must apologise for that. That's just the nature of these things sometimes, but really I do feel it s appropriate this evidence be obtained and this evidence be tendered and also be the subject of cross‑examination and so forth, but equally that we be able to cross‑examine on the basis of that evidence all of the witnesses as may be appropriate, including Mr Partington, I might add.
PN30
THE SENIOR DEPUTY PRESIDENT: Ms McCartney, what do you say about all of this?
PN31
MS McCARTNEY: The obvious submission is that we've had directions ‑ ‑ ‑
PN32
THE SENIOR DEPUTY PRESIDENT: Option C?
PN33
MS McCARTNEY: Option C and that the applicant s position is that there is simply no evidence before you at the moment in relation to what this further evidence is. It s not like another affidavit has appeared or that there s actually any basis put to seek an adjournment. If you're against me on that then we would obviously prefer option B, I think it was. There hasn't been any suggestion to my understanding that it impacts the cross‑examination of anyone other than Mr Partington, in which case I would suggest the appropriate course is to call the other witnesses.
PN34
I probably would propose not calling Mr Partington until we've received an affidavit statement of what that evidence is so that we weren't bringing him back and forward and perhaps having to re‑examine him.
PN35
THE SENIOR DEPUTY PRESIDENT: So we deal with those witnesses other than Mr Partington on both sides?
PN36
MR BORG: I would probably propose - I'm not sure. Yes, that would be fine.
PN37
MR BORG: Excuse me for interjecting, but what might be a reasonable solution is that I provide my witnesses today and then we can get on to my friend s witnesses another day, but I'm happy for ‑ ‑ ‑
PN38
THE SENIOR DEPUTY PRESIDENT: Then we have the whole travel problem again. We ve brought them all here today especially at the request of the CFMEU, so we don t want to leave look, I'm afraid I think we re heading towards a to everyone who s here today and we re going to have to have another day to hear this other statement and then we re just going to have to take it from there about what that statement therefore requires in terms of calling anyone else and if anyone else is recalled then it s going to have to be by telephone.
PN39
MS McCARTNEY: I would propose though, if it does go to Mr Partington, that he shouldn't be required to be put into the witness box ‑ ‑ ‑
PN40
THE SENIOR DEPUTY PRESIDENT: No, I think we'll leave ‑ ‑ ‑
PN41
MS McCARTNEY: ‑ ‑ ‑ without having ‑ ‑ ‑
PN42
THE SENIOR DEPUTY PRESIDENT: I think we'll leave Mr Partington today ‑ ‑ ‑
PN43
MS McCARTNEY: Thank you.
PN44
THE SENIOR DEPUTY PRESIDENT: ‑ ‑ ‑ given that I take it from Mr Borg, though not necessarily all, but the evidence appears substantially directed at the evidence of Mr Partington. Is that right?
PN45
MR BORG: I can only presume, your Honour, but what I say is that the lines of examination in relation to the other witnesses flow from the evidence of Mr Partington.
PN46
THE SENIOR DEPUTY PRESIDENT: Yes. Look, I think we have to bite the bullet on these things. I'm not going to cancel a hearing that s been listed. Directions have been discharged, everyone has travelled and they're here for the purposes of dealing with the matter and disposing of it today. I'll deal with all those witnesses who are here for today s purposes other than Mr Partington. We will set another day aside to deal with what we presume is another statement that will come forward and then we'll work out from that how we deal with the consequential effects on evidence that s been taken, whether or not we have to recall someone and so forth.
PN47
It may be messy, potentially messy, but we don't know and I think we just have to do what we can. So let s proceed on that basis.
PN48
MS McCARTNEY: Thank you, your Honour. Do you require an opening from me or ‑ ‑ ‑
PN49
THE SENIOR DEPUTY PRESIDENT: No, no. We'll go straight to the evidence.
PN50
MS McCARTNEY: I call then my first witness Trent Michael Henry.
PN51
THE ASSOCIATE: Please state your full name and address?
MR HENRY: Trent Michael Henry (address supplied).
<TRENT MICHAEL HENRY, AFFIRMED [10.22 AM]
EXAMINATION-IN-CHIEF BY MS MCCARTNEY [10.23 AM]
PN53
MS McCARTNEY: Thank you, Mr Henry. Do you have a copy of your affidavit there?‑‑‑I do, yes.
PN54
Is that two pages long?‑‑‑Yes, both sides. Yes.
PN55
Does it have your signature on the second page?‑‑‑It does, yes.
PN56
Dated 20 July?‑‑‑Yes.
PN57
Do you have anything that you wanted to add to that statement?‑‑‑No. Everything is on here, I think, that I need. Yes.
PN58
I tender the affidavit of Trent Michael Henry.
THE SENIOR DEPUTY PRESIDENT: I'll mark that as LCR1.
EXHIBIT #LCR1 AFFIDAVIT OF TRENT MICHAEL HENRY DATED 20/07/2015
CROSS-EXAMINATION BY MR BORG [10.24 AM]
PN60
MR BORG: Mr Henry, I'm just going to ask you some questions about your statement. Your statement is eight paragraphs long. That's correct, isn't it?‑‑‑Say that again, sorry?
PN61
Your statement is eight paragraphs long. That's correct, isn't it?‑‑‑That's right, yes.
*** TRENT MICHAEL HENRY XN MS MCCARTNEY
*** TRENT MICHAEL HENRY XXN MR BORG
PN62
Did you make this statement?‑‑‑Yes.
PN63
So are those your words in the statement?‑‑‑Yes.
PN64
If I could show you, Mr Henry, a copy of Mr Brown s statement. If I could just give you a moment to please look over that statement. Have you finished reading the statement?‑‑‑Yes, I have. Yes.
PN65
So I'll just take you to paragraph 2 of your statement and that s identical, is it not, to the statement of Mr Brown?‑‑‑Sorry, I'm not following.
PN66
If you look at paragraph 2 in your statement ‑ ‑ ‑?‑‑‑Yes.
PN67
‑ ‑ ‑ and paragraph 1 of Mr Brown s statement ‑ ‑ ‑?‑‑‑Yes.
PN68
‑ ‑ ‑ the words are identical, aren t they?‑‑‑They are, yes.
PN69
If I refer you to paragraph 5 of your statement and paragraph 7 of your statement sorry, of the statement of Mr Brown and those paragraphs are virtually identical as well, aren t they?‑‑‑(No audible reply)
PN70
Is that a yes?‑‑‑Yes, yes.
PN71
If I refer you to paragraph 6 of your statement and paragraph 8 of the statement of Mr Brown, those paragraphs are virtually identical as well, aren t they?‑‑‑They are.
PN72
If I can refer you to paragraph 10 of Mr Brown s statement and paragraph 8 of your statement, those paragraphs are virtually identical as well, aren t they?‑‑‑They are.
PN73
So it s not the case that you made this statement, is it?‑‑‑No, no, I did make the statement. That's why I signed.
PN74
But we re talking about the statement you signed, you didn't make it, did you?‑‑‑Say that again?
PN75
We re talking about the statement you signed that you have before you, you ‑ ‑ ‑?‑‑‑Yes.
*** TRENT MICHAEL HENRY XXN MR BORG
PN76
‑ ‑ ‑ didn't make it, did you?‑‑‑Did I make it? I did.
PN77
You did?‑‑‑Yes.
PN78
So it s conceivable that you and Mr Brown had identical words to say about in your statements. Is that correct?
PN79
MS McCARTNEY: Objection, your Honour. I think perhaps if there could be some clarity about what s meant by the term make . I think the witness might not be understanding what it is that Mr Borg is saying.
PN80
MR BORG: Mr Henry, earlier on I asked you if those were your words. Is that correct?‑‑‑You did, yes.
PN81
And you said they were your words. You said that, didn't you?‑‑‑Well, I did, yes.
PN82
Yet they're identical words used in Mr Brown s statement, aren t there?‑‑‑They are, yes.
PN83
You didn't make those aren t actually your words, though, are they?‑‑‑Well, what s on there I agree with what s on there so ‑ ‑ ‑
PN84
That's quite a different thing from attesting to the fact that these are your words, Mr Henry. In fact, the statement wasn't at all made by you, was it?‑‑‑The statement? Through well ‑ ‑ ‑
PN85
It was simply given to you to sign, wasn't it?‑‑‑Just but I agree with what s on that what s on that statement otherwise ‑ ‑ ‑
PN86
That's not my question. It was just given to you to sign, wasn't it?‑‑‑Yes, yes.
PN87
And you just simply signed it?‑‑‑No, I don't understand. Not simply signed it. I read what was in there. I wouldn't have signed it if I didn't think it was the what happened in the matter.
PN88
Mr Henry, you're still an employee of LCR, aren t you?‑‑‑Correct.
*** TRENT MICHAEL HENRY XXN MR BORG
PN89
And so you were directed to sign that statement, weren't you?‑‑‑No.
PN90
Mr Henry, do you operate out of the Chinchilla depot?‑‑‑I do.
PN91
Have you always operated out of the Chinchilla depot?‑‑‑No.
PN92
Where did you operate out of previously?‑‑‑Out of Brisbane.
PN93
Out of Brisbane? What was it that led for you to move to the Chinchilla depot?‑‑‑Opportunity.
PN94
Opportunity? Could you provide the Commission with a little bit more information about what you might mean by opportunity?‑‑‑So a greater position than what I held in Brisbane.
PN95
Is Chinchilla a larger operation than in Brisbane?‑‑‑On par, I would say, depending on what s happening at the time.
PN96
So you say that you moved to Chinchilla on the basis of an opportunity and no other reason?‑‑‑It just - it suited my lifestyle.
PN97
Mr Henry, are you being truthful to the Commission?‑‑‑Yes.
PN98
I put it to you, Mr Henry, that you moved to Chinchilla over allegations that you'd been bullying people at Brisbane?‑‑‑No.
PN99
It doesn't ring a bell at all to you?‑‑‑I know what you're talking about. That's not why I moved to Chinchilla.
PN100
It was about the time, was it not?‑‑‑Sorry?
PN101
It was about the same time, was it not?‑‑‑Oh, similar.
PN102
So there were bullying allegations and then you were moved to Chinchilla. Is that the logical sequence of events there?‑‑‑I chose to move to Chinchilla. I wasn't moved there.
*** TRENT MICHAEL HENRY XXN MR BORG
PN103
Were you presented with an opportunity ‑ ‑ ‑?‑‑‑Yes.
PN104
‑ ‑ ‑ you say?‑‑‑Yes.
PN105
So the opportunity arose and you took it?‑‑‑Correct.
PN106
So it wasn't quite a choice for you choosing to go there of your own free will, was it?‑‑‑Yes, it was.
PN107
Rather, you were directed to go there arising out of these bullying allegations?‑‑‑No, that s not true.
PN108
Mr Brown, if I could direct you to - Mr Henry, sorry if I could direct you to paragraph 5 of your statement?‑‑‑Yes.
PN109
And in it you provide some response to the statement of Mr Sutherland and then in relation to paragraph 8 of Mr Sutherland s, you deny saying those words to employees?‑‑‑Correct.
PN110
Including to Mr Willis and/or Mr Cahill?‑‑‑Correct.
PN111
You deny saying words to the effect that, If you don t want what happened in Brisbane to happen here, you have to vote for the variation as this is not true ?‑‑‑That is not true.
PN112
What do you say is not true, that the assertion was not made at all or that simply the things made in that statement were not true?‑‑‑I'm just saying that statement is not true.
PN113
So you're saying that if you don t want what happened in Brisbane to happen here, you have to vote for the variation. You're saying that wouldn't have been a true statement. It would not have occurred?‑‑‑I'm saying that I did not make that statement.
PN114
I take it, Mr Henry, you've seen the statement of Mr Partington?‑‑‑No.
*** TRENT MICHAEL HENRY XXN MR BORG
PN115
You haven't? It s Mr Partington s evidence that if I could just have a moment it s Mr Partington s evidence that a memo was issued to employees at Central Queensland about the proposed variation. Would you agree with that?‑‑‑I couldn't tell you, sorry.
PN116
And he says that on - I'll just clarify some of that because I understand that probably wasn't the clearest of questions. He says that on 30 April 2015 an email went out to South-West Queensland employees - I'm sorry, I'm on the wrong page. Sorry, I withdraw that. I'll rephrase my question. Mr Partington says that on 11 June 2015, you sent out a memo to South-West Queensland employees. Is that correct?‑‑‑That I sent out a memo?
PN117
Yes?‑‑‑I don't recall. I d have to see it, to be honest.
PN118
It s the evidence of Mr Partington that you did that?‑‑‑Righto.
PN119
Surely that would be in your knowledge, would it not?‑‑‑I'm not denying it may have happened, but I don't recall so ‑ ‑ ‑
PN120
If I can just go into some more detail, that might help to refresh your memory?‑‑‑Yes.
PN121
MS McCARTNEY: Perhaps he could be shown the memo, your Honour.
PN122
MR BORG: I'll show you the memo. If you could just give me a moment. So this is the memo that I'm talking about, Mr Henry, and which is contained in the evidence of Mr Partington. Would you like a moment to read over that?‑‑‑Yes, please.
PN123
I take it you've read the memo just now?‑‑‑Yes, yes.
PN124
I take it your memory is refreshed now ‑ ‑ ‑?‑‑‑Yes.
PN125
‑ ‑ ‑ about the document that we re talking about?‑‑‑Yes.
PN126
It s Mr Partington s evidence that you sent out this memo to the South-West Queensland employees. That's correct, isn't it?‑‑‑Yes.
*** TRENT MICHAEL HENRY XXN MR BORG
PN127
And he says it was to notify them that you would be contacting them by telephone. That's correct, isn't it?‑‑‑Yes.
PN128
On 12 June 2015?‑‑‑That discussions would be held with employees, yes.
PN129
What was that, sorry?‑‑‑It just says, yes, On 12 June, discussions will be held with all LCR employees.
PN130
Yes:
PN131
To discuss
PN132
he says
PN133
to discuss the ongoing challenges facing the applicant s business and a proposed variation to the enterprise agreement.
PN134
I note that in your statement, however, you don t make any reference to this memo or to telephone conversations that you made that you had with employees at South-West Queensland. Well, you'd agree, wouldn't you, that that s an omission, isn't it, from your statement?‑‑‑I guess so. Yes, it s not in there.
PN135
It s a little bit unusual, isn't it, that it s your memo and they're events that you're involved in, yet your statement doesn't give evidence about that. It falls to Mr Partington to give evidence about ‑ ‑ ‑?‑‑‑I don't see what s unusual about it, but ‑ ‑ ‑
PN136
You were the one directly involved, were you not?‑‑‑Yes.
PN137
You were the one that had you were the one that sent out the memo, weren't you?‑‑‑Yes.
PN138
And you were the one that had the conversations by telephone with each of the individual employees?‑‑‑Yes.
*** TRENT MICHAEL HENRY XXN MR BORG
PN139
And the face‑to‑face interactions with those employees at South-West Queensland and yet you have nothing to say about any of that in your statement?‑‑‑I'm not sure where it s relevant, to be truthful. The statement is about another statement specifically.
PN140
You say that you're responding to Mr Sutherland s allegation that you had made a certain statement and so it goes to your conversations and your interactions with Mr Willis and Mr Cahill and yet you don t provide any evidence about any telephone conversations or any face‑to‑face discussions you might have had with either of those employees?‑‑‑I'm - I'm not sure what you want me to say, to be truthful.
PN141
It might have been good if you'd provided your evidence on the basis of your own knowledge and beliefs. Now, I take it you accept that you had conversations on 12 June with particular employees at the South-West Queensland depot?‑‑‑Yes.
PN142
I note that Mr Partington s evidence is that Ms and I'm not sure if I'm pronouncing this correctly so just correct me if I'm pronouncing it incorrectly so it s Ms Micairan. Is that right? Ms Candice Micairan?‑‑‑Candice? Yes, yes.
PN143
It s his evidence that Ms Micairan provided an information sheet to employees and that was drafted on 12 June. Would you agree with that?‑‑‑I guess, yes.
PN144
That was the same day that you were supposed to be talking to the employees at South-West Queensland. Is that correct? Yet the purpose of the information sheet provided by Ms Micairan was precisely that purpose, to provide information about the proposed variation, was it not?‑‑‑I guess. Yes.
PN145
So therefore a telephone call from you wouldn't have been necessary, would it, if the purpose was to inform employees about the variation?‑‑‑It s a matter of opinion, I suppose.
PN146
No, it s not a matter of opinion. If Ms Micairan is giving out an information sheet, the employees don t require anything further from you, do they?‑‑‑I don t - I don't see why not. I'm their - I'm their direct supervisor. I'm their manager.
PN147
Why aren t you issuing that statement and why does it fall to Ms Micairan to issue that statement if she s not their supervisor, like you are?‑‑‑But she s the she s human resources and that s just how it is.
*** TRENT MICHAEL HENRY XXN MR BORG
PN148
How what is, Mr Henry?‑‑‑That's the way the team, you know we have discussions. We have meetings. We talk about it. We - you know, everyone does their little bit so ‑ ‑ ‑
PN149
So everyone does their little bit? So it s for Ms Micairan to conduct these information or to create these information sheets that are on the record. That's correct, isn't it?‑‑‑Yes.
PN150
And so therefore it falls to you to make statements that are off the record. That's quite right, isn't it?‑‑‑I'm not following what you mean by that. Sorry.
PN151
Your telephone conversations weren't recorded, were they?‑‑‑No.
PN152
And neither were your face‑to‑face discussions with employees, were they?‑‑‑No.
PN153
So whilst Ms Micairan is putting statements, information on a written basis, yours is all oral. That's correct, isn't it?‑‑‑Correct.
PN154
So therefore you're making off the record statements to your employees, aren t you?‑‑‑Just having conversations, like I do with them every day.
PN155
You'd accept that they weren't recorded, though?‑‑‑Correct. Yes.
PN156
You weren't simply providing the employees with information though, were you?‑‑‑Yes.
PN157
It was a bit more than that, was it not?‑‑‑I'm not ‑ ‑ ‑
PN158
I note that Mr Partington s evidence is that Ms Micairan wrote to the CFMEU with an intention to consult with the CFMEU in relation to the proposed variations. You'd agree with that, wouldn't you?‑‑‑What, she did?
PN159
Yes?‑‑‑I don't know if she did or not, mate.
PN160
You don't know? I put it to you, Mr Henry, that rather than simply providing information to employees, the purpose of your call was to be a bit more persuasive than that?‑‑‑No.
PN161
So you simply reiterated what might be written in Ms Micairan s statement. Is that correct?‑‑‑I d probably need to see exactly what s in that statement, but I d hazard a guess at yes.
*** TRENT MICHAEL HENRY XXN MR BORG
PN162
It s in front of you. That's the memo?‑‑‑Okay. You're referring to this one? Well then, yes.
PN163
So if I could just go back to my previous question. It wouldn't have been necessary therefore for you to make those telephone conversations, would it?‑‑‑Well, I felt it was necessary as their manager.
PN164
You felt it was necessary because you felt it was necessary to get this variation up, didn't you?‑‑‑No.
PN165
It s quite an important variation for the company to achieve, is it not?‑‑‑It holds some importance.
PN166
So how would you say it s not important?‑‑‑It s important, yes.
PN167
So it s important for you to convince the employees that they should vote on the proposed ‑ ‑ ‑?‑‑‑No, no.
PN168
‑ ‑ ‑ variation and approve it?‑‑‑No.
PN169
So you deny making statements to them about the predicament of the company?‑‑‑I'm not sure what statements you're talking about so ‑ ‑ ‑
PN170
You had telephone conversations with employees at South‑West Queensland?‑‑‑Yes.
PN171
You had face‑to‑face discussions with employees in South‑West Queensland?‑‑‑Yes.
PN172
And it was about the provision of information which might have otherwise been provided by Ms Micairan. That's correct, isn't it?‑‑‑About the provision of information?
PN173
Yes?‑‑‑I just had a conversation with them about what this is about. That's not ‑ ‑ ‑
*** TRENT MICHAEL HENRY XXN MR BORG
PN174
So what that is about? Is it also about the predicament of the company, is it not?‑‑‑I'm not following, sorry.
PN175
I take it from Ms Micairan s memo that there s information about the downturn an alleged downturn in the industry and challenges faced by the company?‑‑‑Yes.
PN176
And so you accept that you said similar things or words to that effect in your statement with employees at South-West Queensland?‑‑‑I can't recall every conversation that I had with everybody so ‑ ‑ ‑
PN177
If you could just cast your mind to at least one?‑‑‑Based on this memo, just providing the guys with the information that we had at hand.
PN178
I put it to you and I put it to you bluntly that you made statements about the predicament of the company, namely, that it needed the variation to be approved?‑‑‑No.
PN179
You deny that?‑‑‑Yes.
PN180
I put it to you, Mr Henry, that despite your denials, you did say to employees, including Mr Brown, that, If you don t want what happened in Brisbane to happen in South‑West Queensland that they need to approve the variation ?‑‑‑No, I didn't say that at all.
PN181
I say that, Mr Henry, because you've omitted to have any discussion in your statement whatsoever about discussions that you had with employees. You've simply denied what Mr Sutherland has said?‑‑‑Yes.
PN182
I put it to you more bluntly, Mr Henry, that the purpose of your telephone conversations was not in fact to give information to employees. The purpose of your conversation was to weigh on your employees so that they would approve the variation?‑‑‑That's not true.
PN183
And that you would use any form of persuasion to get that variation approved by those employees?‑‑‑No.
PN184
Including your propensity to bully employees.
*** TRENT MICHAEL HENRY XXN MR BORG
PN185
MS McCARTNEY: Objection, your Honour. That's argumentative and aggressive and there s never been any evidence that Mr Henry has a propensity to bully workers.
PN186
THE SENIOR DEPUTY PRESIDENT: Do you want to respond to it?‑‑‑Not really, no.
PN187
Do you agree with the proposition or do you disagree?‑‑‑I disagree.
PN188
MR BORG: So do you disagree that you have been accused of bullying in the past?‑‑‑No, I have been.
PN189
So you therefore agree that you have a propensity to bully people?‑‑‑No, I do not agree.
PN190
You're aware of what bullying entails, aren t you?‑‑‑I am.
PN191
And that it s a course of conduct over a period of time?‑‑‑Yes.
PN192
So any kind of bullying could be sustained. You'd understand that, wouldn't you?‑‑‑Yes.
PN193
And so therefore any sustained contact would actually formulate a propensity on your part?‑‑‑I disagree.
PN194
I note you say you have not had any conversations with Mr Sutherland in relation to the agreement?‑‑‑Correct.
PN195
Have you had conversations with Mr Shaun Desmond?‑‑‑No.
PN196
I just want to go back to an issue in relation to your statement, if I may. Did you at any time have any conversation with Mr Brown about his statement?‑‑‑No.
PN197
You never requested that he provide a statement?‑‑‑No.
PN198
I'll remind you you're under oath?‑‑‑Yes.
*** TRENT MICHAEL HENRY XXN MR BORG
PN199
I'll just put it to you again, if you don t mind?‑‑‑Yes.
PN200
Did you at any stage have any discussions with Mr Brown about his evidence?‑‑‑No.
I have nothing further. Thank you.
RE-EXAMINATION BY MS MCCARTNEY [10.51 AM]
PN202
MS McCARTNEY: Thank you, Mr Henry. There were some questions at the beginning about how you made your statement. Could you just tell the Commission how it came about? What was the first time you were asked to provide a statement?‑‑‑A date I couldn't give you, but I mean it was ‑ ‑ ‑
PN203
Just the process?‑‑‑The process basically was we have had meetings at work, you know, with Candice and Colin and Len and, yes, we I was made aware of what had been said or supposedly what I was meant to have said and they asked if asked me if it s true if I said that. I said, No, it s not true at all, and they said would I be willing to make a statement about that and I said, Yes. Yes, I would be, so that s how that come about.
PN204
THE SENIOR DEPUTY PRESIDENT: Can I just sort of cut to the chase with this question because I see so much but were you asked to provide information to a solicitor or agent of the employer about this matter and did they take that information from you and then return it to you in the form of this statement and asked whether you agreed with it and then you signed it? Is that what happened?‑‑‑Correct. Yes.
PN205
MS McCARTNEY: Thank you, your Honour.
PN206
If I can take you then to the allegation of maybe if you could briefly outline your position as a regional manager? What does that entail?‑‑‑As regional manager, I'm responsible for two depots, one in Chinchilla, one in Roma and I answer to my general manager, Len Gillespie, and I'm responsible for all the guys, all their wellbeing, all the cranes, the gear, the yard, everything.
PN207
When you were in Brisbane, what was your position there?‑‑‑Operations manager.
*** TRENT MICHAEL HENRY RXN MS MCCARTNEY
PN208
There were some allegations about a propensity for bullying and you said that someone had alleged that you'd been bullying, and I don t want to know the details of that, but was that matter investigated?‑‑‑It was.
PN209
Were those allegations substantiated?‑‑‑No.
PN210
Nothing further, your Honour.
PN211
THE SENIOR DEPUTY PRESIDENT: Was that an internal investigation, was it?‑‑‑I believe it went further than that. Yes.
PN212
Sorry?‑‑‑It went further than that. It was an internal one, started internal, went to Candice and Len. They handled the bulk of it and I believe it was like it went to the doctor, like, for stress leave and those sort of things and the matter I just got told the matter the matter had been dropped.
PN213
Was there any application, anti-bullying application, made? Were you subject to any hearings or any process, nothing?‑‑‑(No audible reply)
PN214
And you were just verbally informed that nothing had resulted from it or there was no you were just told, It s gone away ?‑‑‑Yes, said, It d been resolved. It s ‑ ‑ ‑
PN215
Been resolved?‑‑‑Yes. There s nothing further I need to do.
PN216
Sorry, anything else, Ms McCartney?
PN217
MS McCARTNEY: No, thank you.
PN218
THE SENIOR DEPUTY PRESIDENT: You're excused. Yes, sorry.
PN219
MR BORG: Sorry, I have a question arising out of your Honour s question, if that s okay.
THE SENIOR DEPUTY PRESIDENT: Yes.
FURTHER CROSS-EXAMINATION BY MR BORG [10.54 AM]
*** TRENT MICHAEL HENRY FXXN MR BORG
PN221
MR BORG: So you say that the matter was resolved, the bullying matter that s what I'm referring to. But you also say it was dropped. It was dropped by the person making the complaint, was it not?‑‑‑I'm - I don't know, to be truthful.
PN222
You don't know? It s likely. But when you say, It was dropped, that s what that means?‑‑‑I don't know.
PN223
THE SENIOR DEPUTY PRESIDENT: When you used the word, did you use that word on the basis you knew the person concerned had withdrawn or decided not to pursue it or ‑ ‑ ‑?‑‑‑No. I just I just been told that the process it was over. It d been dealt with. It s wherever it went with that. It s just been finished and I didn't have to do anything further with it.
PN224
MR BORG: So it had gone away is what you're saying?‑‑‑Been resolved.
PN225
Well, resolved is one thing, it being dropped is another?‑‑‑Perhaps I should have used the word resolved .
PN226
So do you understand on what basis it was resolved?‑‑‑Not really, no.
PN227
So how do you say it was resolved and not simply dropped?‑‑‑Just been told that it had been resolved and there s nothing I need to do.
PN228
THE SENIOR DEPUTY PRESIDENT: You're excused, Mr Henry. Thank you?‑‑‑Right. No worries. Do I leave these here?
No, take those with you.
<THE WITNESS WITHDREW [10.55 AM]
PN230
THE SENIOR DEPUTY PRESIDENT: Did I mark Mr Henry s statement, did I?
PN231
MS McCARTNEY: Yes, LCR1, I believe.
PN232
THE SENIOR DEPUTY PRESIDENT: It s intended to be LCR1, if I haven t.
*** TRENT MICHAEL HENRY FXXN MR BORG
PN233
MS McCARTNEY: Mr Brown is standing just before I call the next witness, your Honour, I might just raise a matter with the Commission and only in the interests of time. I'm happy for my friend to cross‑examine each of the witnesses as he sees fit. Of course it s a matter for him, but I can tell you that each of those statements were prepared in the same way and we might spend some significant time ‑ ‑ ‑
PN234
THE SENIOR DEPUTY PRESIDENT: No, that came out in the it follows logically from the response to my question that the other one is the same way. Mr Borg understands that, I think. Yes.
PN235
MS McCARTNEY: Thank you. I call Jason Cahill.
PN236
THE ASSOCIATE: Just remain standing for a moment.
PN237
MR CAHILL: Yes.
PN238
THE ASSOCIATE: Please state your full name and address.
MR CAHILL: Jason Cahill (address supplied).
<JASON CAHILL, AFFIRMED [10.57 AM]
EXAMINATION-IN-CHIEF BY MS MCCARTNEY [10.57 AM]
PN240
MS McCARTNEY: Thank you, Mr Cahill. Do you have a copy of your statement there with you?‑‑‑Yes.
PN241
Is that a two‑page statement?‑‑‑Sorry?
PN242
Two-page statement?‑‑‑Yes, both sides.
PN243
Two pages? Yes, excellent. Is that your signature that appears at the bottom of it there?‑‑‑Yes.
PN244
Is it dated 20 July?‑‑‑Yes.
PN245
Do you have anything you want to add to that or any amendments to make?‑‑‑No.
*** JASON CAHILL XN MS MCCARTNEY
PN246
I tender that statement.
THE SENIOR DEPUTY PRESIDENT: LCR2.
EXHIBIT #LCR2 STATEMENT OF JASON CAHILL DATED 20/07/2015
MS McCARTNEY: I ve no further questions, I should say. Thank you.
CROSS-EXAMINATION BY MR BORG [10.58 AM]
PN249
MR BORG: Mr Cahill, I'm just going to ask you a few questions about your statement that you provided?‑‑‑Yes.
PN250
Some of it is going to be a bit of a reiteration of what you've already said, but just bear with me, if you don t mind?‑‑‑I'm a bit hard of hearing, too, mate.
PN251
Yes, that s okay. So you're employed with the applicant LCR ‑ ‑ ‑?‑‑‑Yes.
PN252
‑ ‑ ‑ as a mobile crane operator and you work out of the South-West Queensland depot?‑‑‑Yes.
PN253
You say that you're authorised to make this statement on behalf of the applicant. So you received authorisation to make this statement witness statement?‑‑‑Yes.
PN254
In fact, you were asked to make this statement, weren't you?‑‑‑I was asked to do the affidavit. Yes.
PN255
Or, rather, you were asked to sign this affidavit?‑‑‑Yes.
PN256
Are those words in the affidavit?‑‑‑Words? Which words are you referring to, mate?
PN257
All words that are attributed to you?‑‑‑Yes, yes.
*** JASON CAHILL XXN MR BORG
PN258
They are, are they? I just want to take you to a statement of one of your colleagues, if that s okay. I'll take you to the statement of I won t press that line of questioning. I withdraw that question. You say that you were employed for eight years and you report to Mr Henry?‑‑‑I report to him now, yes.
PN259
So he s your direct supervisor?‑‑‑Yes.
PN260
So you have a lot of interactions with Mr Henry?‑‑‑A little bit.
PN261
You know him fairly well, do you?‑‑‑He s only been out there a couple of months, mate. I don t go and have beers with him after work or anything.
PN262
So you didn't know him prior to him coming to Chinchilla?‑‑‑I used to work in Brisbane before I moved to Chinchilla. I d seen him around a bit, yes.
PN263
So you're aware that he was at Brisbane first and then moved to Chinchilla?‑‑‑Yes.
PN264
And you're aware, aren t you, at the time of him moving to Chinchilla that he was accused of bullying at Brisbane?‑‑‑No, I wasn't, sorry.
PN265
You're not aware? You say at paragraph if I could take you to paragraph 5 of your statement?‑‑‑Yes.
PN266
Sorry, before I get on to that, I just want to take you to paragraph 4. So you operate machinery?‑‑‑Yes.
PN267
And maintaining machinery?‑‑‑Yes.
PN268
Is that correct? You're operating out of Chinchilla?‑‑‑Yes.
PN269
So would that mean that you only operate and maintain machinery at and around Chinchilla or do you service other areas from Chinchilla?‑‑‑Mainly just Chinchilla, mate. Yes, I don t go away very often.
PN270
So is there much work in Chinchilla?‑‑‑I d normally have a bit of work on, yes.
*** JASON CAHILL XXN MR BORG
PN271
Is that the same for everybody at Chinchilla or is that just you personally?‑‑‑Personally, I'm pretty money hungry so I try to work as much as I can.
PN272
I understand, but my question is more about where employees based at Chinchilla actually perform their work. Where would you say the majority of employees ‑ ‑ ‑?‑‑‑Chinchilla to Wondai ‑ ‑ ‑
PN273
What was that, sorry?‑‑‑From Chinchilla to Wondai and to Roma.
PN274
Currently do Chinchilla employees at all perform work in Brisbane or on the Gold Coast?‑‑‑Not that I'm aware of, no.
PN275
I'll take you to paragraph 5 of your statement, as I was going to earlier on, and you deny that Mr Henry said to you words to the effect that, If you don t won t what happened in Brisbane to happen here, you have to vote for the variation ?‑‑‑Yes. I never heard him say that.
PN276
What was that, sorry?‑‑‑I never heard him say those words.
PN277
But words to that effect?‑‑‑No.
PN278
But you're aware, aren t you, that in the lead up to the second vote that a number of employees based at Brisbane were terminated?‑‑‑Yes.
PN279
And that if you did not approve the variation, the same might occur at Chinchilla?‑‑‑I was fairly confident that Chinchilla could hold its own.
PN280
Did you receive a member from Ms Micairan?‑‑‑An amendment on this? Sorry?
PN281
Did you receive a memo from Ms Micairan about the proposed variation?‑‑‑Probably, mate. Yes. I don't have a very good memory. It s probably in my emails somewhere.
PN282
You might have received one from Mr Henry as well?‑‑‑Yes, maybe.
PN283
In that memo he says something to the effect that he would be in contact with employees at Chinchilla ‑ ‑ ‑?‑‑‑Yes.
*** JASON CAHILL XXN MR BORG
PN284
‑ ‑ ‑ to discuss the variations?‑‑‑Yes.
PN285
So you deny that Mr Henry had discussions as all with you about the variations?‑‑‑We had discussions, yes.
PN286
In those discussions he took you through the proposed variation?‑‑‑Yes.
PN287
He explained it to you?‑‑‑Yes.
PN288
And he explained to you why it might be necessary to have that kind of variation and those reasons included some kind of downturn in the industry?‑‑‑Yes.
PN289
And that people were being laid off for that reason?‑‑‑Well, he didn't say that, but he just said there was a downturn in the industry, which we all know. It s not hidden or anything.
PN290
He would have known that you would be aware that employees would have been terminated at Brisbane, would he not?‑‑‑Yes, I think they d already been terminated.
PN291
Did you at all have any discussion with I say that - I'll take you to paragraph 6 of your statement. You say that you had no conversations with Mr Sutherland?‑‑‑That's correct, yes.
PN292
Is he your organiser based at Chinchilla?‑‑‑That's the out there is the first time I ve seen him, mate. I ve never seen no union presence out there at all.
PN293
So it s not a depot where there is much of a union presence. Is that correct?‑‑‑I think we've got a lot of members, but there s no real union presence.
PN294
What do you mean by a lot of members?‑‑‑Most of the blokes I know, I think, are members of the CFMEU from what I know from what I ve been told.
PN295
How would you know that?‑‑‑Asking them.
PN296
So you're aware, aren t you, that Mr Desmond was your delegate?‑‑‑Yes.
*** JASON CAHILL XXN MR BORG
PN297
But that he was based out of Brisbane?‑‑‑Yes.
PN298
Whilst you deny having conversations with Mr Sutherland, did you have any conversations with Mr Desmond about ‑ ‑ ‑?‑‑‑Yes.
PN299
‑ ‑ - the proposed variation?‑‑‑Yes.
PN300
And that at that time you told Mr Desmond that Mr Henry had said to you that, If you don t want what happened in Brisbane to happen here, you have to vote for the variation ?‑‑‑No.
PN301
You deny having said that to Mr Desmond?‑‑‑Yes.
PN302
I note that in your statement you make no mention of having any discussions with your CFMEU delegate?‑‑‑In this?
PN303
Yes?‑‑‑I think number 5 number 6.
PN304
You specify about Mr Sutherland, but you don t make any mention of any interaction you might have had with Mr Desmond?‑‑‑No, mate. No.
PN305
It might have been an important detail, mightn t it have been?‑‑‑Well, I didn't say those words, mate, so I didn't really ‑ ‑ ‑
PN306
What words are you talking about?‑‑‑Apparently saying that Trent said that we had to vote yes.
PN307
We can establish that you might not have said that to Mr Sutherland because you haven't spoken to Mr Sutherland, but I put it to you earlier on that you said those words to Mr Desmond?‑‑‑Sorry?
PN308
I put it to you earlier on that you said those words to Mr Desmond?‑‑‑No.
PN309
You say at the end of the statement that you sign this affidavit of your own free will:
*** JASON CAHILL XXN MR BORG
PN310
And no person has offered any threat or inducement for me to sign this affidavit.
PN311
What makes you think something like that would be necessary to say in your statement?‑‑‑I don't know, mate. I'm not used to this stuff. I just figured that s another way of saying that no one made me sign it, so I figured no one did so I'm not - I don't see where you're going with it.
PN312
So you say you're not familiar with this sort of stuff. These aren t your words, is that what you're saying?‑‑‑Sorry?
PN313
So these aren t your words in paragraph 8? That's what you're saying?‑‑‑No. I'm just saying this is just just legally jargon, like yes.
PN314
So that s not the kind of language that you'd use?‑‑‑Not talking, no. If I was writing something, yes.
PN315
But you didn't write these, did you?‑‑‑No. I perused it and I agreed with everything that it says.
PN316
Because a threat or inducement, they're quite high thresholds, aren t they, really? Rather, you were asked to sign this?‑‑‑Yes.
PN317
And rather than being simply authorised to sign it, you were directed, in effect, to sign it, weren't you?‑‑‑Directed?
PN318
Yes?‑‑‑I wasn't made to sign it.
PN319
You're an employee of the applicant, aren t you?‑‑‑Yes.
PN320
And you respond to Mr Henry, don t you?‑‑‑Yes.
PN321
And anyone in a position higher than Mr Henry?‑‑‑Yes.
PN322
So when you're asked by any of those people to do something, you're ordinarily directed, aren t you?‑‑‑Right. They can tell me to jump off a bridge and I'm not going to do it.
*** JASON CAHILL XXN MR BORG
PN323
That's nothing to do with your work. We re not talking about jumping off a bridge, Mr Cahill. We re talking about signing a statement?‑‑‑Yes.
PN324
So you've been directed to sign a statement?‑‑‑They asked me to and I said I would do it.
PN325
I have nothing further. Thank you.
THE SENIOR DEPUTY PRESIDENT: Re-examination?
RE-EXAMINATION BY MS MCCARTNEY [11.10 AM]
PN327
MS McCARTNEY: What day did you sign your ‑ ‑ ‑?‑‑‑20 July.
PN328
20 July? If I can just show you the statement of Shaun Desmond. Have you seen that witness statement before?‑‑‑(No audible reply)
PN329
If I can take you to the date on that witness statement, what date is it signed? It s on the second page there?‑‑‑The 28th.
PN330
So at the time you prepared your statement, did you have any knowledge of what Mr Desmond was saying?‑‑‑No, I had no idea that Shaun Desmond had made a statement.
PN331
I have no further questions. Thank you.
THE SENIOR DEPUTY PRESIDENT: Good. Thank you, Mr Cahill, you're excused?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [11.10 AM]
MS McCARTNEY: I call Darren Wayne Murray.
<DARREN WAYNE MURRAY, AFFIRMED [11.11 AM]
EXAMINATION-IN-CHIEF BY MS MCCARTNEY [11.11 AM]
*** JASON CAHILL RXN MS MCCARTNEY
*** DARREN WAYNE MURRAY XN MS MCCARTNEY
PN334
MS McCARTNEY: Thank you, Mr Murray. Have you got a copy of your statement there with you? Is that a two page statement?‑‑‑On each side, yes.
PN335
Is that your signature on the second page?‑‑‑Yes.
PN336
Dated 20 July?‑‑‑Yes.
PN337
Does it have an alteration on the first page at paragraph three?‑‑‑Yes.
PN338
Do you have any other amendments or things to add to that statement?‑‑‑No.
PN339
No, and is it true and correct?‑‑‑Yes.
PN340
I tender the affidavit of Darren Wayne Murray.
THE SENIOR DEPUTY PRESIDENT: LCR3.
EXHIBIT #LCR3 AFFIDAVIT OF DARREN WAYNE MURRAY DATED 20/07/2015
MS McCARTNEY: Thank you.
CROSS-EXAMINATION BY MR BORG [11.12 AM]
PN343
MR BORG: I m just going to ask you some questions, Mr Murray. If you just bear with me, I just have to find the paperwork here. You were employed by the applicant?‑‑‑LCR?
PN344
Yes?‑‑‑Yes.
PN345
You re the operations manager of the south east Queensland depot?‑‑‑Yes, yes.
PN346
That s at Wacol, is it? Is that right?‑‑‑At Hendra.
PN347
At Hendra. You ve been employed for - I just want to clarify something because I think that there s an annotation here on your affidavit - - -?‑‑‑Yes.
*** DARREN WAYNE MURRAY XXN MR BORG
PN348
- - - so you ve been in that role for?‑‑‑Nine months.
PN349
Nine months, and you were previously?‑‑‑A supervisor.
PN350
At Hendra were you?‑‑‑Yes.
PN351
Whilst the south east Queensland division, if I can describe it that way, is put into care and maintenance you still stay on as an operations manager, is that correct?‑‑‑Yes, yes.
PN352
Even though there are really no operations going on, is that right?‑‑‑No.
PN353
You say there aren t any operations going on, is that what you say?‑‑‑Not run of the mill, I d suppose you d call it, not run of the mill operations.
PN354
What do you mean by run of the mill?‑‑‑I think we sort of serve major contracts that we have in place, that s about all.
PN355
They re ongoing? There s ongoing work, is that what you say?‑‑‑Rare but yes, there is some that we have to honour.
PN356
I ll just take you to paragraph six of your statement, Mr Murray. You say at one, 6.1, there was no ongoing work in the south east Queensland operations?‑‑‑Yes.
PN357
That they were being - as a consequence of that, are being placed into care and maintenance?‑‑‑Mm hm.
PN358
That s inconsistent with what you ve just said, is it not? Where you re saying that there were ongoing operations that the company needed to honour?‑‑‑Yes.
PN359
Yet here you re saying there was no ongoing work?‑‑‑No. Well - no, well there isn t, there isn t any but we have some that we have to - contracts that have to be administered. Some are like I suppose you could say Energex, if major things collapse we can t leave them astray.
PN360
Well it s either one or the other. You either do or you don t have things to do?‑‑‑Well yes, if there s something breaks down well we ve got to somehow source - - -
*** DARREN WAYNE MURRAY XXN MR BORG
PN361
I m not talking about maintenance. I m talking about the servicing of ongoing contracts and ongoing work?‑‑‑Yes.
PN362
You re saying that the company does that?‑‑‑Yes.
PN363
Performs that work?‑‑‑Yes.
PN364
But in your statement you say there s no ongoing work in south east Queensland?‑‑‑Well yes.
PN365
That doesn t quite answer the question, Mr Murray. I m just asking you which one it is. If there is ongoing work or if there is not ongoing work?‑‑‑Okay, I suppose well, yes, well I suppose there is a degree of ongoing work if we re held to a contract and we have to honour that until ‑ ‑ ‑
PN366
In your statement, it s signed by you, it s affirmed, and you ve sworn it on oath but you ve said that there was no ongoing work?‑‑‑Yes, yes. But there was prior work to that that had to be completed, job - work that had to be completed.
PN367
Well that doesn t make any sense, does it? You re saying that the work that s ongoing now is work that still needs to be completed from before, that prior work?‑‑‑Yes.
PN368
Here you re saying there was no ongoing work and your statement was signed prior to your evidence today. You didn t make this statement did you?‑‑‑No, but I read it and realised that what it said and - yes.
PN369
Yet you signed it?‑‑‑Yes.
PN370
You signed it?‑‑‑Yes.
PN371
Because you re asked to sign it?‑‑‑I knew what it was about.
PN372
Clearly you didn t because you ve just contradicted what you ve said in your own statement and my question was that you were asked to sign this, weren t you?‑‑‑Yes, it was typed out for me, yes. I read it and - - -
*** DARREN WAYNE MURRAY XXN MR BORG
PN373
Typed out for you to sign?‑‑‑Yes, yes.
PN374
You were asked to sign it?‑‑‑Yes.
PN375
Who asked you to sign it, Mr Murray?‑‑‑I was brought over to the HR office and signed it.
PN376
The HR, you were brought over to the HR office?‑‑‑Yes.
PN377
And you were asked to sign it by whom?‑‑‑Candice.
PN378
Who is Candice, please?‑‑‑Candice Micairan s our HR officer.
PN379
She s the HR officer?‑‑‑Mm hm.
PN380
HR manager you might say?‑‑‑Yes, manager, yes.
PN381
You report to her do you?‑‑‑Well when this come up, yes.
PN382
She asked you to sign it? So in effect - - -?‑‑‑Read it and sign it, yes.
PN383
Read it and sign it she said to you, is that right?‑‑‑Mm hm.
PN384
She didn t ask you to put this in your own words?‑‑‑No.
PN385
She didn t ask you if it was correct?‑‑‑Candice didn t, no.
PN386
You just signed it because she asked you to sign it?‑‑‑No, I read it and the way I interpreted it was pretty much where we sit, where we are to my knowledge of where the business is.
PN387
You say in the same paragraph that we re talking about here where we ve found this inconsistency, you say in the same paragraph that you deny having said words to Mr Hoya, Mr Brown and Mr Desmond and that those words were If you can hold off for four weeks you can get re-hired but on a lesser rate ?‑‑‑No, I didn t say that.
*** DARREN WAYNE MURRAY XXN MR BORG
PN388
You deny having said that to Mr Hoya?‑‑‑I didn t say that.
PN389
You deny having said that to Mr Brown?‑‑‑Yes, no.
PN390
You deny saying that to Mr Desmond?‑‑‑Yes.
PN391
You say you deny having said those things?‑‑‑Mm hm.
PN392
You did say those things though, didn t you?‑‑‑No.
PN393
I put it to you, Mr Murray, that it s the evidence of Mr Desmond that you did say those things to him?‑‑‑I didn t say them.
PN394
You then go on to say that while the company looked for options to re-deploy, the employees and options were identified. You say that?‑‑‑No.
PN395
You deny that that occurred?‑‑‑Yes, I didn t say that.
PN396
It says here While the company looked for options to re‑deploy the employees, no options were identified . Mr Murray, this is your statement and you say you ve read your statement?‑‑‑As I understood, yes.
PN397
Are you aware of whether, for instance, Mr Brown has been dismissed?‑‑‑I believe he has, yes.
PN398
Do you know whether he has re-employment at all?‑‑‑Not 100 percent, no, no.
PN399
What do you mean by not 100 percent?‑‑‑I think he s had some work. I don t know how full time or casual or what so I don t know.
PN400
You think he might be a casual employee?‑‑‑I m not sure.
PN401
I ve nothing further.
THE SENIOR DEPUTY PRESIDENT: Re-examination?
*** DARREN WAYNE MURRAY XXN MR BORG
RE-EXAMINATION BY MS MCCARTNEY [11.23 AM]
PN403
MS McCARTNEY: Sorry, you just referring to Mr Brown, are you saying that he s been re-employed by LCR as a casual, or?‑‑‑No, no.
PN404
By some other - - -?‑‑‑Yes.
PN405
Can I just ask, when you were asked to sign the statement, did you have a conversation with anyone from the solicitor s office?‑‑‑No.
PN406
Prior to signing the statement?‑‑‑No. I had a phone call.
PN407
Sorry, from Clayton Utz?‑‑‑Yes. To say that I d be ‑ possibly be requested to and all I said not until I found out - I didn t know who - I didn t know any of this was sort of in its course so I needed to find out what this was first, so.
PN408
All right. I ve no further questions, thank you.
THE SENIOR DEPUTY PRESIDENT: You re excused thanks, Mr Murray?‑‑‑Thank you.
<THE WITNESS WITHDREW [11.24 AM]
MS McCARTNEY: Your Honour, excuse me, losing my voice, your Honour the affidavit of Mr Brown that you have isn t sworn because he had difficulty getting to a - I have a sworn copy which I can replace it or I can ask him to swear it in the box which is - - -
<JAMIE ALLAN BROWN, AFFIRMED [11.25 AM]
EXAMINATION-IN-CHIEF BY MS MCCARTNEY [11.25 AM]
PN411
MS McCARTNEY: Thank you, Mr Brown. If I could hand to you a copy of your affidavit sworn this morning. You stay there, sorry. I have a copy for the Commission as well. If you could just have a look at that. Is that a two page affidavit with your signature there?‑‑‑Yes.
PN412
Did you swear that affidavit this morning?‑‑‑Yes.
*** JAMIE ALLAN BROWN XN MS MCCARTNEY
PN413
Is there any material difference in that affidavit or any difference in that affidavit to the statement that you d previously provided to the Commission?‑‑‑No.
PN414
I tender that.
THE SENIOR DEPUTY PRESIDENT: It s LCR4.
EXHIBIT #LCR4 AFFIDAVIT OF JAMIE ALLEN BROWN DATED 03/08/2015
MS McCARTNEY: I ve no further questions.
CROSS-EXAMINATION BY MR BORG [11.26 PM]
PN417
MR BORG: Mr Brown, I m just going to ask you some questions just in relation to evidence you provided in your affidavit, from anything arising out of that, of course. Perhaps if I could just take you to - you ve got your statement there, I just want to confirm. I just want you to have a look at paragraph one please, Mr Brown, and you say that you re authorised to make this statement on behalf of the applicant?‑‑‑Yes.
PN418
Did you make this statement?‑‑‑Yes.
PN419
Are those your words?‑‑‑Are they my words?
PN420
Yes?‑‑‑Yes.
PN421
If I could just show you a document, Mr Brown. Mr Brown, that s the statement of Mr Henry, I think your former supervisor, is that correct?‑‑‑Yes.
PN422
If I could just take you through some aspects of that statement and also through some aspects of your statement. In particular, if I could take you to paragraph two of Mr Henry s statement. Have you read that?‑‑‑Yes.
PN423
That s identical to your paragraph one isn t it?‑‑‑Yes.
PN424
If I could take you to paragraph five of Mr Henry s statement?‑‑‑Yes.
*** JAMIE ALLAN BROWN XXN MR BORG
PN425
That s virtually identical, isn t it, to your paragraph seven?‑‑‑Yes.
PN426
If I can take you to paragraph six of Mr Henry s statement?‑‑‑Yes.
PN427
It s virtually identical to your paragraph eight, isn t it?‑‑‑You said six and eight, is that correct?
PN428
Yes, six of Mr Henry s and eight of yours?‑‑‑No, six and eight are different.
PN429
Why do you say they re different?‑‑‑Just number six on Trent s has got a date in it where mine doesn t.
PN430
Except for the date, they re otherwise identical, is that correct?‑‑‑Yes, sir.
PN431
Mr Henry s paragraph eight, that s identical to your paragraph 10, isn t it?‑‑‑Yes, that s correct.
PN432
When you say that these are your words as you ve said, that s not correct is it?‑‑‑Well no, not entirely, no, it s not my exact words.
PN433
Not entirely or I mean it s not a question of degree, Mr Brown. I m simply asking you, they re not your words are they?‑‑‑No, sir.
PN434
They re someone else s words in fact? When you say at paragraphs five and nine of your statement, if you could look at paragraphs five and nine of your statement, you say that you make this statement from your own knowledge, that can t be true can it?‑‑‑Make this statement from my own knowledge. Yes.
PN435
Yes what? That it can t be true can it? Is that what you re saying?‑‑‑I make this statement from my own knowledge. I m saying, yes, it is true.
PN436
This statement s not from your own knowledge, is it?‑‑‑I make this statement from my - well I do make it from my own knowledge.
PN437
You didn t make your statement, we ve established that. They re not your words?‑‑‑Okay.
*** JAMIE ALLAN BROWN XXN MR BORG
PN438
The statement doesn t come from your knowledge does it? It s from someone else s knowledge, they re someone else s words?‑‑‑Yes, sir.
PN439
You were just given this statement to sign weren t you?‑‑‑I read this statement, sir, yes.
PN440
Yes but that wasn t my question?‑‑‑Yes.
PN441
You were just given this statement to sign weren t you?‑‑‑Yes.
PN442
And so you did?‑‑‑Yes.
PN443
That s why you say at paragraph 10, if I could ask you to have a look at paragraph 10, you say at paragraph 10 that you signed this affidavit rather than make it?‑‑‑Yes.
PN444
If I could just take you back to paragraph one of your statement, you say you signed the affidavit with the applicant s authorisation, and I just want you to sort of focus on that word authorisation, you say you re authorised to sign it and it s because the affidavit says what the applicant wants you to say isn t it?‑‑‑Say the question again, sorry.
PN445
Well you re authorised to sign this statement?‑‑‑Yes.
PN446
You re authorised to say(sic) this statement by the applicant?‑‑‑Yes.
PN447
You re authorised to sign this affidavit, rather, and it s because the affidavit says what the applicant wants you to say isn t it?‑‑‑Yes.
PN448
Because you re an ex-employee of LCR?‑‑‑Yes, sir, that s ‑ ‑ ‑
PN449
You re no longer employed by them?‑‑‑No, sir.
PN450
Because you wouldn t otherwise need the authorisation for anything would you?‑‑‑No.
*** JAMIE ALLAN BROWN XXN MR BORG
PN451
You can say what you like but you didn t. You ve said that you re saying in your affidavit what the applicant wants you to say?‑‑‑Yes.
PN452
You ve said that? Yes. Including in denying your conversation with Mr Murray?‑‑‑Yes.
PN453
If I could just take you to paragraph two of your statement, of your affidavit please, Mr Brown. You say you re currently employed by Williams Cranes and Riggings. That s correct isn t it?‑‑‑Yes.
PN454
You are engaged as a casual employee, that s correct isn t it?‑‑‑Yes.
PN455
You re aware obviously of the differences between casual employment and permanent employment?‑‑‑Yes.
PN456
You re aware, for instance, that as a casual you can be readily dismissed or just not called back?‑‑‑Yes.
PN457
That as a casual you don t get the same kinds of benefits as permanent employees?‑‑‑Yes.
PN458
Such as paid leave, et cetera?‑‑‑Yes.
PN459
You re therefore aware that you d ordinarily be better off as a permanent employee than as a casual?‑‑‑Yes.
PN460
Ordinarily you would prefer to have permanent employment over casual employment?‑‑‑Yes.
PN461
If you could?‑‑‑Yes.
PN462
You worked for the applicant, did you not, as a permanent employee?‑‑‑Yes.
PN463
You say for some eight years or so, you confirm that?‑‑‑Yes.
PN464
Throughout the ups and downs, as it were, of the business?‑‑‑Yes.
*** JAMIE ALLAN BROWN XXN MR BORG
PN465
Despite all that, that offered you some kind of security in your employment?‑‑‑Yes.
PN466
That you don t currently have as a casual? I mean, of course, that you re made redundant on 4 June 2015? Yes?‑‑‑Yes.
PN467
About a week after a proposed variation to the same EBA was rejected?‑‑‑Yes.
PN468
If I could just refer you to paragraph eight of your affidavit please, Mr Brown?‑‑‑Yes.
PN469
Do you want a moment to read that, or?‑‑‑No, I ve read it, sir.
PN470
You deny having any conversations with Mr Sutherland regarding your dismissal?‑‑‑Yes.
PN471
You re aware that Mr Sutherland is an organiser of the CFMEU?‑‑‑Yes.
PN472
He was your organiser was he?‑‑‑Yes.
PN473
You, I take it, a member of the CFMEU?‑‑‑No.
PN474
You were a member of the CFMEU?‑‑‑Yes.
PN475
I take it you were a CFMEU member during your employment with LCR?‑‑‑Yes.
PN476
And that Mr Desmond was your delegate at LCR?‑‑‑Yes.
PN477
You were aware throughout that Mr Desmond was a CFMEU representative?‑‑‑Yes.
PN478
You ve always been aware of that?‑‑‑Yes.
*** JAMIE ALLAN BROWN XXN MR BORG
PN479
Whilst you deny having conversations with Mr Sutherland of the CFMEU you accept, don t you, that you had discussions with Mr Desmond of the CFMEU about your dismissal?‑‑‑Yes.
PN480
You telephoned him on 26 June 2015?‑‑‑26 June, I don t know.
PN481
If I could just - all right, I put it to you that you did. You accept that?‑‑‑Yes, sir.
PN482
You spoke to Mr Desmond for about 15 minutes and five seconds to be precise, do you accept that?‑‑‑Yes.
PN483
You told him a number of things in that conversation, do you accept that?‑‑‑Yes.
PN484
You told him that you tried to get a job elsewhere having been dismissed from LCR?‑‑‑Yes.
PN485
But that at least one application was knocked back because another employer knew that LCR wanted their crane operators back?‑‑‑No.
PN486
You deny having said that to Mr Desmond?‑‑‑Yes.
PN487
I put it to you that you did say that to Mr Desmond. You said to him that you were having trouble getting a job because you d been knocked back because another employer knew that LCR crane operators would be back at LCR?‑‑‑No.
PN488
You also told Mr Desmond, didn t you, that Mr Murray told you that if you could hold off for four weeks you could get re-hired by LCR?‑‑‑No.
PN489
Of course that s possible for you, is it not?‑‑‑No.
PN490
Well you re only casual employee your current employer?‑‑‑Yes.
PN491
You could give them limited notice to go back with LCR?‑‑‑Okay, are you saying that they have - I could leave and go back? Yes.
PN492
Well you re not permanently established elsewhere are you?‑‑‑No.
*** JAMIE ALLAN BROWN XXN MR BORG
PN493
You re only precariously employed as a casual?‑‑‑Yes.
PN494
Whereas LCR might offer you more permanent employment?‑‑‑Yes.
PN495
In fact, that s what Mr Murray had said to you, that if you could wait it out for four weeks or so that you could get re-hired by LCR?‑‑‑No.
PN496
In fact, you re making this statement, having been asked by LCR to make it and sign it, in the hope that you might get re-employment with LCR?‑‑‑No.
PN497
You deny that?‑‑‑Yes.
PN498
You don t want to be back at LCR, is that correct?‑‑‑No, not at this stage.
PN499
I m not asking about this stage only in particular, Mr Brown. I m not confining my question in that regard. My question is whether or not you d want to be back at LCR?‑‑‑No.
PN500
Not at all?‑‑‑No.
PN501
Never?‑‑‑No.
PN502
You said you did discuss a number of things with Mr Desmond, Mr Brown, in a telephone conversation. What I ll do is, before I get onto that, I just have a screen shot of Mr Desmond s telephone. Your Honour, I tender that.
PN503
THE SENIOR DEPUTY PRESIDENT: It ll come up through Mr Desmond will it?
PN504
MR BORG: Yes.
PN505
THE SENIOR DEPUTY PRESIDENT: We ll keep it tied to his then as annexure - - -
PN506
MS McCARTNEY: Your Honour, Mr Desmond s evidence‑in‑chief has already come in.
*** JAMIE ALLAN BROWN XXN MR BORG
PN507
THE SENIOR DEPUTY PRESIDENT: Is it - - -
PN508
MR BORG: It hasn t been affirmed.
PN509
MS McCARTNEY: It s not in his witness statement.
PN510
THE SENIOR DEPUTY PRESIDENT: It ll come up through that. I can take it up through that to keep it together. I don t think we need to swear it, take it up as evidence just at this juncture. Is that a problem?
PN511
MS McCARTNEY: No.
PN512
THE SENIOR DEPUTY PRESIDENT: No.
PN513
MR BORG: I don t know if you ve got a copy, do you have that? Yes. What that is, that s basically just a screen shot to evidence, discussion had been had, a telephone conversation had been had between yourself. I take it that s your number up the top there?‑‑‑Yes.
PN514
You see the third or so entry, the bottom entry there on 26 June 2015 you see a telephone call which is of 15 minutes and five seconds in length. Then there s a further conversation on 30 July, sorry, which is about 11 minutes, so that s Mr Desmond calling you back on that particular occasion. You say that you d discussed a number of things with Mr Desmond on 26 June, you accept that?‑‑‑Yes.
PN515
But you did not say at all what you did discuss with Mr Desmond. That s correct, isn t it?‑‑‑Yes.
PN516
You simply denied the propositions that I ve put to you?‑‑‑Yes.
PN517
Do you make the same denials in relation to your telephone conversation on 30 July?‑‑‑Yes.
PN518
I note, however, that in your statement, your affidavit, that you do make mention of any conversations you might have had with Mr Sutherland and you say you didn t have any of those conversations but you don t make any mention of any conversations you might have had with your delegate?‑‑‑No.
*** JAMIE ALLAN BROWN XXN MR BORG
PN519
It would be quite a logical thing to do, wouldn t it, if you were to discuss your organiser to also discuss any interactions you might have had with your delegate?‑‑‑Yes.
PN520
Yet you did not do that. I put it to you that you didn t put them in your statement because you wouldn t have otherwise been authorised to make this statement had you done that?‑‑‑No.
PN521
In other words, it would have contained things that the applicant would not have wanted you to say?‑‑‑No.
PN522
Or rather the applicant did not want you to say anything about that because it would have evidenced conversations between you and Mr Desmond?‑‑‑No.
PN523
Rather what they intended for you to say was simply written in this statement anyway?‑‑‑No.
PN524
Your Honour, there s no further questions.
THE SENIOR DEPUTY PRESIDENT: Any re-examination?
RE-EXAMINATION BY MS MCCARTNEY [11.46 AM]
PN526
MS McCARTNEY: Sorry, I m losing my voice for some reason. Mr Brown, you said you ve only been able to obtain casual employment. Can you tell the Commission why it is that you haven t been able to? Are you looking for full time employment?‑‑‑Yes, I am.
PN527
Can you tell the Commission why it is that you haven t been able to obtain full time employment?‑‑‑The industry at the moment, it s just very quiet.
PN528
Can I show you a copy of Mr Desmond s statement. You were taken to some conversations that occurred between yourself and Mr Desmond. Can you tell me in that statement, take a second to read it, have you seen that statement before?‑‑‑No.
PN529
Can you just take a second to read it and then can you tell me is there any reference in that statement to those conversations that you ve had?‑‑‑No.
*** JAMIE ALLAN BROWN RXN MS MCCARTNEY
PN530
Having read that statement and given your evidence before, is there anything that you d like to add about those conversations that you ve had?‑‑‑With Sean? Being that he s a union delegate, he usually has leads on employment opportunities so that would ve been why I would ve been ringing him on that date was to try and see where the work from LCR had gone to to try and gain employment with other crane companies.
PN531
I ve no further questions, thank you.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Brown, you re excused?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [11.47 AM]
PN533
MS McCARTNEY: Your Honour, other than Mr Partington, that s all of my witnesses. I actually propose that perhaps we call Mr Sutherland and Mr Desmond after Mr Partington s given his evidence. Having listened to the cross-examination, I d probably rather we finish our case and then cross-examine Mr Sutherland and Mr - - -
PN534
THE SENIOR DEPUTY PRESIDENT: I doubt you ll argue against that.
PN535
MR BORG: Yes, I find that - yes.
PN536
THE SENIOR DEPUTY PRESIDENT: Look, that concludes what we can do for today reasonably. It s a matter now of you filing the statement, this prospective statement, and I think what we ll need to do is not make any plans in relation to that currently. I think we should read it, get an idea what it s issues are, its complexities, scope and so on then we ll have some iteration between us about how we re going to approach it.
PN537
I think it was a short statement that might be disposed of quickly but has some complexity. I think we need to discuss that and how we ll manage it. In other words, we need to see it before we can make any judgment about what we re going to do exactly.
PN538
MS McCARTNEY: Thank you.
*** JAMIE ALLAN BROWN RXN MS MCCARTNEY
PN539
THE SENIOR DEPUTY PRESIDENT: Nothing else we can reasonably do? I ll be in touch. Thank you for your assistance in making everyone available today. Hopefully we ll be able to expedite this matter without any undue further transaction costs. Thank you.
PN540
MS McCARTNEY: Thank you.
ADJOURNED TO A DATE TO BE FIXED [11.49 AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
TRENT MICHAEL HENRY, AFFIRMED......................................................... PN52
EXAMINATION-IN-CHIEF BY MS MCCARTNEY....................................... PN52
EXHIBIT #LCR1 AFFIDAVIT OF TRENT MICHAEL HENRY DATED 20/07/2015 PN59
CROSS-EXAMINATION BY MR BORG........................................................... PN59
RE-EXAMINATION BY MS MCCARTNEY.................................................. PN201
FURTHER CROSS-EXAMINATION BY MR BORG.................................... PN220
THE WITNESS WITHDREW............................................................................ PN229
JASON CAHILL, AFFIRMED........................................................................... PN239
EXAMINATION-IN-CHIEF BY MS MCCARTNEY..................................... PN239
EXHIBIT #LCR2 STATEMENT OF JASON CAHILL DATED 20/07/2015 PN247
CROSS-EXAMINATION BY MR BORG......................................................... PN248
RE-EXAMINATION BY MS MCCARTNEY.................................................. PN326
THE WITNESS WITHDREW............................................................................ PN332
DARREN WAYNE MURRAY, AFFIRMED................................................... PN333
EXAMINATION-IN-CHIEF BY MS MCCARTNEY..................................... PN333
EXHIBIT #LCR3 AFFIDAVIT OF DARREN WAYNE MURRAY DATED 20/07/2015 PN341
CROSS-EXAMINATION BY MR BORG......................................................... PN342
RE-EXAMINATION BY MS MCCARTNEY.................................................. PN402
THE WITNESS WITHDREW............................................................................ PN409
JAMIE ALLAN BROWN, AFFIRMED............................................................ PN410
EXAMINATION-IN-CHIEF BY MS MCCARTNEY..................................... PN410
EXHIBIT #LCR4 AFFIDAVIT OF JAMIE ALLEN BROWN DATED 03/08/2015 PN415
CROSS-EXAMINATION BY MR BORG......................................................... PN416
RE-EXAMINATION BY MS MCCARTNEY.................................................. PN525
THE WITNESS WITHDREW............................................................................ PN532
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URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/469.html