|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052621
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER MCKENNA
C2015/5665
s.604 - Appeal of decisions
MPR Scaffolding Pty Ltd v Construction, Forestry, Mining and Energy Union
(C2015/5665)
Canberra
10.05 AM, TUESDAY, 20 OCTOBER 2015
PN1
VICE PRESIDENT HATCHER: I'll take appearances please. Mr Warren, you appear for the appellant?
PN2
MR WARREN: Indeed, your Honour, thank you.
PN3
VICE PRESIDENT HATCHER: Mr Crawshaw, you appear for the respondent?
PN4
MR CRAWSHAW: I appear for the CFMEU.
PN5
VICE PRESIDENT HATCHER: I'll call you the respondent. I note that permission has previously been granted to the parties to be represented by lawyers. I don't know if you've been told this but the air conditioning is not working.
PN6
MR WARREN: We've worked that out, your Honour.
PN7
VICE PRESIDENT HATCHER: So you'll just have to bear with us about that. Mr Warren, how do you propose to proceed?
PN8
MR WARREN: As your Honour is well aware and as is apparent from the submissions - outline of submissions filed on behalf of the appellant, the appellant identifies four issues that to an extent run together. There's the application for an extension of time. There's of course the permission to appeal point, there's the permission to admit further evidence on appeal and then there's the appeal proper. It is quite clear that this appeal is significantly out of time and that is clearly a hurdle that the appellant has to overcome.
PN9
It's also clear that by the very nature of this matter at first instance, as it were, that the documents that form part of the Commission's file are very sparse inasmuch as there's an application for application granting the approval for an EBA. There's a very limited decision of some several paragraphs and then there's the EBA attached, and that's the extent of the information or evidence that is currently before the Commission on this appeal.
PN10
VICE PRESIDENT HATCHER: That's what you'd normally expect when you have an agreement which is accompanied by statutory declarations from the employer and the bargaining agent saying that all the relevant steps have been complied with.
PN11
MR WARREN: I understand that, your Honour, and then one is faced with the situation that the steps certainly on the appellant's case have not been complied with. Then it becomes a question of whether - ultimately where this Commission sits when it becomes apparent that steps which should have been complied with, statutory steps that should have been complied with, are on the appellant's case have not been complied with. We recognise that on the file is a document entitled, "A statutory declaration of an employer". There is - there has been evidence given in another place and it is the subject of some statements that are appearing in the appeal books that clearly challenge whether those steps were taken, and in fact say those steps were not taken.
PN12
So it's a matter for - on the face of the document, I understand what your Honour is saying but when one peels the onion to see what is below that surface we say it is clear that certain steps as outlined in the grounds of appeal, and in the submissions of the appellant, we say on any measure were not taken. Interestingly, even though there had been evidence given in another place, the actual factual circumstance of the allegation of noncompliance, no witnesses have come forward from the other end of the Bar table to say that that's right. All they've said is well you've got a stat dec and that's all there is to it. It's the employer's stat dec, end of story.
PN13
The evidence if permitted to be admitted here will show that when the employer signed that document entitled a stat dec, he says he didn't know it was a stat dec. He didn't read that document. He was given a bundle of documents to sign by the union, which incidentally they charged him $800 for filing an agreement and he just signed it and went on with his business. That's the - in essence, the evidence of the employer.
PN14
VICE PRESIDENT HATCHER: Speaking for myself, I've read the material. I'm not sure it would entitle you to go that far but can I say something from the outset and excuse me if I'm blunt about it. On one view of what happened the approval of the agreement was procured by way of a false statutory declaration of Mr Josifoski. Mr Josifoski gave evidence about these matters before the Royal Commission in circumstances where the Royal Commission Act gave him protection against that evidence being used in criminal proceedings against him. But no such protection applies for this jurisdiction.
PN15
MR WARREN: Certainly, your Honour.
PN16
VICE PRESIDENT HATCHER: That is Mr Josifoski on one view is under a real risk of self-incrimination to the effect that on one view the evidence that you would have used it would show that he made a false statutory declaration and procured a fraud (indistinct). It may not be the only false statutory declaration but it's probably the critical one.
PN17
Have you - and I'm not trying to tell you how to do your job obviously, Mr Warren, but have you given appropriate advice to Mr Josifoski about these matters?
PN18
MR WARREN: We have given advice as to the consequences of what occurs here and what occurs if the matter does not resolve here and goes elsewhere. Central to Mr Josifoski's assertion is he didn't know it was a statutory declaration, so you then get to the issue of he signed a document which says it's a statutory declaration and his evidence would be he did not do that, certainly didn't do it knowingly. He just signed a bundle of documents the union gave him. He clearly recalls signing the EBA, he clearly recalls signing a check. He doesn't - his evidence would be it wasn't a statutory declaration that I signed.
PN19
Now there is a document that is cobbled together with his signature on a final page and no signature's on the other pages, which one would normally consider a statutory declaration should contain to - - -
PN20
COMMISSIONER McKENNA: I could say that that's not the case in relation to form F17 which were lodged with the Commission, in my experience.
PN21
MR WARREN: I'm looking at his Honour's question to me as to the exposure of Mr Josifoski to other proceedings on the basis that he signed a statutory declaration. Now whether another court would consider what he has signed as a statutory declaration which has not been initialled on each page is perhaps the point I understand, Commissioner, but I understand what the Commissioner is saying.
PN22
VICE PRESIDENT HATCHER: I'm not asking you to give, obviously, his version of the evidence at this stage in summary form. He'll do that if necessary. I'm just raising the possibility and no doubt if it comes to it Mr Crawshaw will cross-examine him on those issues that the risk can be this. I just want to ensure that one, he understands that the case until I raised with both counsel, if we get to the point of hearing evidence, what an appropriate warning might be, if any, that needs to be - - -
PN23
MR WARREN: Your Honour, perhaps I should refresh Mr Josifoski of the situation, if that's permissible.
PN24
VICE PRESIDENT HATCHER: Can I just raise one other related issue. As I understand it there's an action by CFMEU in the Federal Circuit Court.
PN25
MR WARREN: Yes.
PN26
VICE PRESIDENT HATCHER: In which it seeks enforcement of the agreement - impugned agreement. Unless you tell me otherwise, it seems to me that it would be open for your side to mount a collateral attack on (indistinct) in that proceeding, in circumstances where the Federal Court might have the power to grant a section 128 certificate under the Evidence Act. That is, the self-incrimination risk which exists here might, and I emphasise, might be capable of alleviation in a court which is bound by the Evidence Act. That may also raise a question which you may raise with your client as to whether that might be a better place, in the interests of Mr Josifoski at least, to deal with this issue rather than this Full Bench.
PN27
MR WARREN: We've spoken of many with Mr Josifoski and I'll raise that once again.
PN28
VICE PRESIDENT HATCHER: Before you do that, can you just outline how you would see the matter proceeding in terms of the four issues that you've described.
PN29
MR WARREN: Because of the need for the Commission to be appraised of the circumstances of how the out of time came about, you will need to hear evidence of that. You will need - and that flows straight into the evidence of Mr Josifoski's knowledge which goes straight into the issues of the statutory declaration. It's almost a compelling situation, we would say, which might be - my friend's not going to agree with this but the evidence that we wish to proceed with perhaps should be put on all first, and then because you could not determine whether there was reasonable prospects of success on an extension of time without being appraised of evidence, which would normally in a case certainly, not in approval of an enterprise agreement but in another - a case that the Commission would normally hear an appeal on, would already be in.
PN30
So the Commission - we would say the most efficient way of handling this matter would be to get the evidence out there and then see well, do we accept that we will admit that evidence, do we call for that evidence or not. Is that evidence relevant to the extension of time, what are the prospects of success if it was admitted, which are considerations the Commission has to come to, and you cannot come to without hearing the evidence.
PN31
VICE PRESIDENT HATCHER: Another way of putting that would be that you may have a negligible chance of getting an extension of time as the evidence is admitted for the purpose of the extension of time application. That is, unless that evidence gets in and we hear it then - - -
PN32
MR WARREN: Well the Commission - well there is two sections. There is evidence which is Mr Josifoski's statement which starts at appeal book 60, no sorry - yes. Appeal book 48, tab 7, which sets out when he became aware of certain circumstances and when he instructed his solicitor to bring the appeal.
PN33
VICE PRESIDENT HATCHER: So is that the only statement you would seek to rely upon in respect of the extension of time. Is that what you're saying?
PN34
MR WARREN: No, there is then of course - - -
PN35
VICE PRESIDENT HATCHER: Mr Ward's statement.
PN36
MR WARREN: - - - Mr Ward's statement.
PN37
VICE PRESIDENT HATCHER: Or affidavit.
PN38
MR WARREN: Which is quite substantial.
PN39
VICE PRESIDENT HATCHER: That annexes all the Royal Commission - - -
PN40
MR WARREN: That annexes all the material.
PN41
VICE PRESIDENT HATCHER: So you seek to rely on both of those documents on the extension of time.
PN42
MR WARREN: On the extension of time. So once the extension of time goes in and those statements go in, if they go in, then the Commission really has before it virtually all the evidence in any event.
PN43
VICE PRESIDENT HATCHER: At least for that purpose. I might hear from Mr Crawshaw now. How do you say we should proceed, Mr Crawshaw, and if you want to address any of the issues I raised before with Mr Warren, go ahead.
PN44
MR CRAWSHAW: I hadn't thought of the section 128 in the court but we say in relation to that matter anyway as I think you see in our submissions that the matter - it's not just a matter of a collateral attack being available. The appellant has already said if the appellant fails here, it will be bringing the collateral attack in the Federal Court and we say that in itself is a very powerful reason for not extending time and not giving permission to appear, because the matter can be raised at another place. The section 128 which I hadn't thought of and we didn't put in the submissions are the answer to that because it does or potentially does affect Mr O'Mara as I think your Honour notes was another person who signed a statutory declaration but it obviously doesn't go as far as Mr Josifoski's statutory declaration.
PN45
On the evidence - - -
PN46
VICE PRESIDENT HATCHER: Sorry, just before you go on. So in respect of Federal Circuit Court proceedings, has that been - that is the validity of the agreement being formally challenging and pleading or - - -
PN47
MR CRAWSHAW: No. I think Mr Warren's instructing solicitor has told my instructing solicitor that if this proceeding - if they're unsuccessful in this proceeding they will be running the point in the Federal Court. They may - Mr Warren will get instructions on that, whether that's true or not and he can - to meet our point or to meet what your Honour raises about the collateral attack being available in the Federal Circuit Court, he can say well we're not going to mount an attack there. That's a matter for him but moving onto the question of evidence, there's conceptually two matters in which further evidence can be called. There's the application for the extension of time and then there's the appeal proper. We see them as distinct - - -
PN48
VICE PRESIDENT HATCHER: Well perhaps permission to appeal might be a third level.
PN49
MR CRAWSHAW: For the purpose for permission to appeal?
PN50
VICE PRESIDENT HATCHER: Yes.
PN51
MR CRAWSHAW: Perhaps. But certainly we see the extension of time evidence as a separate matter. In relation to the extension of time evidence, it's harder for us to object to the evidence going in and we don't object to the evidence going in for the purpose of the extension of time argument. For that purpose we're even willing not to object to any of the evidence, not cross-examine any witnesses and not bring our own evidence. We're happy for the Commission if it's read the material to decide the extension of time on the basis of the material that's presently in the appeal books. It's being one of the factors to be considered, not the only factor and not necessarily a decisive factor, whether what the prospects of success are on permission to appeal and the appeal proper. So we say you don't have an appeal before you until the extension of time's granted, you should consider that first. If the extension of time is not granted we can all go home. If the extension of time is granted we will then have to consider the next step in the chain and that will be time and expense for my client - - -
PN52
VICE PRESIDENT HATCHER: Well that raises the question about whether a more efficient course might be simply to deal with all the applications simultaneously, to avoid parties having to come back, to avoid evidence having to be dealt with more than once et cetera, et cetera. Why wouldn't that be a more efficient way to deal with it, that is without making any determination about extension of time or anything. First up, to hear the parties on all aspects of the matter including the evidence and then we'll decide how to deal with the matter.
PN53
MR CRAWSHAW: Well that's what my learned friend's suggesting. We're suggesting another alternative. Obviously it's a matter for the Commission in the end but the matter's been set for three days. As I say, we can all go home if the Commission's in a position to decide the extension of time and the Commission needs a little time to do that and is prepared to do so, that can be accommodated within three days. For example, the decision could be made after lunch today and we can still probably, comfortably I would think complete. If the decision's against us we would still comfortably complete the hearing probably I would expect within the two days, even in those circumstances. So we're saying that's - well, the Commission's had our arguments on extension of time, my learned friend's arguments. The Commission or at least your Honour presiding has told us you've read the material. We think a more convenient course is to deal with the extension of time first, in those circumstances.
PN54
VICE PRESIDENT HATCHER: Thank you. Mr Warren, just returning to you, if this issue about the validity of the agreement is going to be raised in the Federal Circuit court anyway if the matter proceeds - - -
PN55
MR WARREN: I can advise the Commission that it would be if we're unsuccessful here.
PN56
VICE PRESIDENT HATCHER: Why would we grant permission to appeal, just jumping ahead a step, to deal with an issue which can be dealt with by the court in circumstances where the Evidence Act will apply, and will allow all the issues to be dealt with in one go? That is, and I think this is what Mr Crawshaw is saying, denial of permission to appeal would not deny your client the point because there's a concession that there's a capacity to mount a collateral attack on the validity of the agreement in the court.
PN57
MR WARREN: It really gets down to, your Honour, an issue whether the Commission should avail itself of an opportunity of correcting what we say is a clear error, before it gets to the circuit court, but if that - - -
PN58
VICE PRESIDENT HATCHER: Well I don't know how you can say it's an error. If someone's perpetrated a fraud on the Commission and a member of the Commission in good faith has relied upon statutory declarations that were placed before it.
PN59
MR WARREN: I'm not saying who's error it is.
PN60
VICE PRESIDENT HATCHER: Well error might be a generous description of what happened. We might retired to consider how we go forward because this is an unusual matter.
PN61
MR WARREN: It is.
PN62
VICE PRESIDENT HATCHER: At the same time you might want to consider, Mr Warren, the issues I've raised about self-incrimination and whether those issues could more conveniently be dealt with in the Federal Circuit Court as an attack on the validity of it there.
PN63
MR WARREN: I'll seek further instructions, thank you.
PN64
VICE PRESIDENT HATCHER: In the event that we do proceed, I would like the parties to turn their minds on thinking of formal words as to a warning against self-incrimination which could be given to Mr Josifoski when he gives evidence, if we get to that stage.
PN65
MR WARREN: Thank you, your Honour.
PN66
VICE PRESIDENT HATCHER: So if the parties reach some view about any of those matters just advise my Associate and that can be communicated to us.
PN67
MR WARREN: Thank you, your Honour.
PN68
VICE PRESIDENT HATCHER: We'll now adjourn.
SHORT ADJOURNMENT [10.27 AM]
RESUMED [11.00 AM]
PN69
VICE PRESIDENT HATCHER: Mr Warren, where are we up to?
PN70
MR WARREN: Yes, your Honour. Thank you for the adjournment opportunity. We have sought full instructions from our client and we've been instructed to proceed.
PN71
VICE PRESIDENT HATCHER: In relation to the - how we'll proceed with the matter what we've decided is that we'll hear the parties on all the issues raised in the matter simultaneously. That is we'll hear on extension of time, permission to appeal, the appeal and the admission of evidence and then when we make our decision we'll obviously go sequentially through those issues. It will be necessary for that purpose for us to receive the evidence and hear any cross-examination on the evidence, so we'll admit it provisionally in relation to the extension of time application and then hear the parties further as to whether it should be admitted for purposes. But for that purpose we anticipate that it will be necessary for the parties to deal with any cross-examination of the evidence, so that we don't have to hear it a second time. Mr Crawshaw, you look a bit bemused by all that.
PN72
MR CRAWSHAW: No, I think I understand.
PN73
VICE PRESIDENT HATCHER: Did you discuss the issue about the warning against self-incrimination?
PN74
MR WARREN: Yes, both my learned friend and myself really had difficulty coming up with any words that would be effective, bearing in mind the Evidence Act doesn't apply here, and that has been discussed with my client. Any words that would be effected to prevent that could override the capacity of a prosecutor to move down that path if they were so advised.
PN75
VICE PRESIDENT HATCHER: Perhaps if you say it's unnecessary. If you've given Mr Josifoski appropriate advice about the matter, Mr Crawshaw, I'll just note that you've given that advice - - -
PN76
MR WARREN: We've given advice.
PN77
VICE PRESIDENT HATCHER: - - - that he understands what he's up for and proceed on that basis.
PN78
MR WARREN: He has received that advice and I've received my instructions.
PN79
VICE PRESIDENT HATCHER: The appropriate course is to start receiving evidence and hearing any cross-examination on the evidence. I'll take - - -
PN80
MR WARREN: So to that extent perhaps it'd be best if I call Mr Josifoski.
PN81
VICE PRESIDENT HATCHER: Right.
PN82
MR CRAWSHAW: I think a more convenient course might be, with respect, to - - -
PN83
VICE PRESIDENT HATCHER: Just sit down for a second, Mr Josifoski.
PN84
MR CRAWSHAW: - - - to go through the evidence first because the evidence - my learned friend's trying to put in a lot of evidence and a lot of it's irrelevant. I mean if your Honour's read it, your Honour would have read a lot of material in the Royal Commission transcript that has nothing to do with the particular facts of this case. So - - -
PN85
VICE PRESIDENT HATCHER: Mr Ward's affidavit identifies specific pages, so speaking for myself as I read the specific pages, I didn't read the whole thing but it might be appropriate, Mr Warren, if at some stage you can as it were remove from the Royal Commission materials matters which aren't relied upon so that - - -
PN86
MR WARREN: If that be the case we'd uplift the appeal books. Is that what your Honour's suggesting?
PN87
VICE PRESIDENT HATCHER: Yes, you might do that overnight or something.
PN88
MR WARREN: Yes, and we could then take out - because he's only relied upon that which is identified by Mr Ward.
PN89
VICE PRESIDENT HATCHER: Yes.
PN90
MR WARREN: But obviously for - in case anyone said that you've kept something out that you shouldn't have kept out, the whole lot's there.
PN91
VICE PRESIDENT HATCHER: Is that an appropriate course, Mr Crawshaw?
PN92
MR CRAWSHAW: Yes, your Honour.
PN93
MR WARREN: So we will uplift at an appropriate time the Bench's appeal books and - - -
PN94
COMMISSIONER McKENNA: I've already marked mine.
PN95
MR WARREN: Well we don't want to see the Commissioner's markings.
PN96
SENIOR DEPUTY PRESIDENT HAMBERGER: I have some annotations as well.
PN97
MR WARREN: Senior Deputy President Hamberger's indicated the same thing. However you wish us to deal with that we can indicate that we only rely upon the paragraphs and the provisions outlined by Mr Ward.
PN98
VICE PRESIDENT HATCHER: Well I think my version will be the official version.
PN99
MR WARREN: Well would you like us to uplift yours, your Honour.
PN100
VICE PRESIDENT HATCHER: So at least you can uplift mine, apart from the coloured pen.
PN101
MR CRAWSHAW: Yes, I'll withdraw what I said and I'll perhaps deal with Mr Ward separately. I don't require him for cross-examination so I've got to admit something that I didn't read - I've read it all without realising that Mr Ward was restricting it, so I've got to cross-reference what I say is irrelevant to Mr Ward. I can do that at lunch time but in the meantime perhaps we'll proceed as my learned friend wanted to with Mr Josifoski.
PN102
VICE PRESIDENT HATCHER: Well we can deal with Mr Josifoski just so we're clear - - -
PN103
MR CRAWSHAW: The only thing is Mr Josifoski is being cross-examined on some of the annexures to Mr Ward as well, so - - -
PN104
VICE PRESIDENT HATCHER: Yes, and am I right, Mr Crawshaw, that in respect of some of the witnesses whose evidence to the Royal Commission is annexed to Mr Ward's affidavit that you would want to cross-examine him on?
PN105
MR CRAWSHAW: Mr Josifoski, Ms Josifoski - Rosa Josifoski and Mr Spatolisano - - -
PN106
MR WARREN: Where is he?
PN107
MR CRAWSHAW: Ought to be available.
PN108
VICE PRESIDENT HATCHER: So do you call Mr Josifoski.
PN109
MR WARREN: I do.
PN110
THE ASSOCIATE: Please state your full name and address.
MR JOSIFOSKI: Petar Josifoski, (address supplied).
<PETAR JOSIFOSKI, SWORN [11.07 AM]
EXAMINATION-IN-CHIEF BY MR WARREN [11.07 AM]
PN112
VICE PRESIDENT HATCHER: Mr Warren.
PN113
MR WARREN: Mr Josifoski, you have made three statements during the course of both proceedings before the Royal Commission and the preparation for this appeal. You have a document with you in the witness box at the moment, do you?‑‑‑I do.
PN114
Is that your statement of 14 September 2015 that - I don't have a - it commences at page 48 of the appeal book, at tab 7?‑‑‑Yes, that's the document.
PN115
You have that? Is it your evidence that that statement is true and correct to the best of your knowledge in every detail?‑‑‑Yes, it is.
PN116
I tender that statement or would you like me to tender everything in one - - -
VICE PRESIDENT HATCHER: We'll deal with it as we go. So the statement of Petar Josifoski dated 14 September 2015 will be marked exhibit 1.
EXHIBIT #1 WITNESS STATEMENT OF PETAR JOSIFOSKI DATED 14/09/2015
PN118
MR WARREN: Thank you.
PN119
VICE PRESIDENT HATCHER: When I mark all these documents it's subject to the ruling on the respondent's - the CFMEU's submissions as to whether evidence should be admitted in the appeal so they're really provisional markings.
*** PETAR JOSIFOSKI XN MR WARREN
PN120
MR WARREN: I show you the - I'm going to seek to tender actually the affidavit of Mr Ward I think might be the neatest way of doing this, your Honour, and then take Mr Josifoski to various parts of it.
PN121
MR CRAWSHAW: Could I just reserve my right to object to the annexures other than those - other than statements of Mr Josifoski and his transcript, if Mr Ward's being - - -
PN122
VICE PRESIDENT HATCHER: Yes, all right. Well at this stage as I've said it's only being - the annexure's only tendered for the purpose of the - identify extracts of Mr Ward's affidavit but I'll reserve your rights about that, Mr Crawshaw, and we can deal with that when you're ready.
PN123
MR CRAWSHAW: I do have some objections in relation to Mr Josifoski and what's being identified, mainly relevance.
PN124
MR WARREN: Perhaps, your Honour, I should deal with it this way. Can I tender pages 52 to 74 of the appeal book, being the statement of Mr Josifoski - his first statement and then I wish to - which is dated 27 May 2015.
PN125
VICE PRESIDENT HATCHER: Do you want to take the witness to that statement?
PN126
MR WARREN: I'm sorry, your Honour?
PN127
VICE PRESIDENT HATCHER: Are you going to take the witness to that statement?
PN128
MR WARREN: I will be taking him now to the statement. I mean he's already sworn elsewhere that it's true but I'll take him to that statement, your Honour. If I could just hand that to him. It's appeal book 52 to 74. You have been given by his Honour's Associate pages 52 to 74 of the appeal book, and that contains a statement of yours of some 44 paragraphs, which is dated 27 May 2015 on page 8, and there's a signature. Is that your signature?‑‑‑Yes, it is.
PN129
There's another attachment - and then at page 60, which is tab B to the appeal books, your Honours, Commissioner, through to page 74 is a second statement of some 16 paragraphs dated 27 June 2015. Is that your signature on that page?‑‑‑I don't have that one with me.
*** PETAR JOSIFOSKI XN MR WARREN
PN130
Don't have that one. Sorry, we'll get that one for you. Do you have that now, Mr Josifoski?‑‑‑Yes, I do.
PN131
Is it your evidence - if I go to the first statement which is at page 52, I note there is an error in paragraph number 8 at least, that says, "on 5 August 2015". In another place was that corrected to 5 August 2010?‑‑‑Yes, it should be 2010.
PN132
You wish that to be 2010?
PN133
COMMISSIONER McKENNA: Which page is this, please?
PN134
MR WARREN: It's on page 52, Commissioner in paragraph 8. Down the bottom. It should read 2010. Is it your evidence that that statement from pages 52 through to 59 being paragraph 1 to 44 of a statement is dated and signed 27 May 2015 is correct in every detail?‑‑‑Yes.
PN135
To the best of your knowledge?‑‑‑Yes, it is.
PN136
I tender that statement.
PN137
VICE PRESIDENT HATCHER: Why do we need to tender anything that goes beyond I think paragraph 11?
PN138
MR CRAWSHAW: Paragraph 10 is my objection, anything beyond paragraph 10.
PN139
MR WARREN: I don't press that. I press (indistinct) including paragraph 11.
PN140
MR CRAWSHAW: Well in our submission paragraph 10 and 11 are also irrelevant.
PN141
VICE PRESIDENT HATCHER: Do you press paragraph 11, Mr Warren?
PN142
MR WARREN: No, I don't.
PN143
MR CRAWSHAW: We object to paragraph 10 as well.
*** PETAR JOSIFOSKI XN MR WARREN
PN144
MR WARREN: It's not relevant to these proceedings.
PN145
VICE PRESIDENT HATCHER: So paragraphs 1 to 9.
PN146
MR WARREN: Yes, please.
PN147
VICE PRESIDENT HATCHER: The witness statement of Petar Josifoski made for the purpose of the Royal Commission - can someone remind me what the proper name of the Royal Commission was, part from the vernacular name.
PN148
MR WARREN: Trade Union Governance and Corruption.
VICE PRESIDENT HATCHER: Made for the purpose of the Royal Commission into Trade Union Governance and Corruption, dated 27 May 2015 but excluding all paragraphs of the statement from paragraph 10 to the end of the statement will be marked exhibit 2.
EXHIBIT #2 WITNESS STATEMENT OF PETAR JOSIFOSKI MADE FOR THE PURPOSE OF THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION, DATED 27/05/2015, PARAGRAPHS 1 TO 9 INCLUSIVE ONLY
PN150
MR WARREN: Mr Josifoski, you also have a statement there do you which is a statement of some 16 paragraphs with some attachments, through to page number 74, top right-hand corner?‑‑‑Yes, I do.
PN151
Your statement which is from paragraphs 1 to 16, is it your evidence that that is true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.
PN152
I tender that statement and its attachments.
PN153
MR CRAWSHAW: Yes, I object to paragraphs 3(c), (d) and (e).
PN154
VICE PRESIDENT HATCHER: Let's deal with those. Do you press those, Mr Warren?
*** PETAR JOSIFOSKI XN MR WARREN
PN155
MR WARREN: Certainly (d) goes to what this witness was - the reasoning as to why he proceeded the way he did and little (e) goes to the date and a certain event occurred which is relevant to these proceedings, as is (f), a copy of his diary notes.
PN156
MR CRAWSHAW: That's not objected to.
PN157
VICE PRESIDENT HATCHER: I don't think there's an objection to (f).
PN158
MR WARREN: Sorry, just (d) and (e).
PN159
VICE PRESIDENT HATCHER: What's the relevance of (d)?
PN160
MR WARREN: This witness will give evidence that he felt obliged to enter into an agreement and that goes to the issue of how much attention - maybe this should be in the absence of the witness. I'm not sure, your Honour.
VICE PRESIDENT HATCHER: Mr Josifoski, can you step outside for a second?‑‑‑Not a problem.
<THE WITNESS WITHDREW [11.17 AM]
PN162
MR CRAWSHAW: I'm just wondering as the temperature rises whether we can take coats off?
PN163
VICE PRESIDENT HATCHER: Certainly, we're just debating whether to keep the door open.
PN164
MR CRAWSHAW: Right.
PN165
MR WARREN: Maybe Ms Josifoski could go to another room or something.
PN166
VICE PRESIDENT HATCHER: Yes.
PN167
MR WARREN: If there was any concern.
PN168
MR CRAWSHAW: As an additional matter, can we take our coats off?
*** PETAR JOSIFOSKI XN MR WARREN
PN169
VICE PRESIDENT HATCHER: Yes, you may.
PN170
MR CRAWSHAW: Unless I was going to be cross-examining, I wouldn't need to but I get a bit hot under the collar.
PN171
MR WARREN: The witnesses have all be warned.
PN172
MR CRAWSHAW: That's why they're not here.
PN173
MR WARREN: Your Honour, the tenure of Mr Josifoski's evidence on this point will be that he was obliged to enter into this agreement and his evidence will go to the extent of well, look, I just wanted to get the agreement signed and out of the way. To that extent it's relevant as to why he did it.
PN174
VICE PRESIDENT HATCHER: What do his motive matter? I mean (d) might be true, that is he was told that he couldn't get on a site unless there was an EBA in place and he might have proceeded to do - make an EBA which was perfectly valid under the Act. The only thing is not why he did it but it's whether the - or it seems to me at least unless Mr Crawshaw takes a different view. It seems to me that the relevant matters are whether the requirements for a valid (indistinct) EBA occurred or not. Why they did or did not occur doesn't really matter to us.
PN175
MR WARREN: I understand your Honour's point. We don't press (d).
PN176
VICE PRESIDENT HATCHER: (e) - - -
PN177
MR WARREN: (e) goes to a date and time which also goes to when he became aware of certain things and it goes to the out of time.
PN178
VICE PRESIDENT HATCHER: So what's the discussion he's referring to that occurred at the O'Malley job?
PN179
MR WARREN: That was the diary entry which is at tab 18, which speaks of where he was. It's the issue of when he first became aware that there was an EBA on foot, and then it gets to the issue then of when there was assertions of voting and whether there was any voting on 29 July or otherwise. It's a critical date in terms of the approval process and whether a draft EBA was in the hands of him or his employees and when it was.
PN180
VICE PRESIDENT HATCHER: But when it says this discussion, what's the discussion being referred to?
PN181
MR WARREN: In (c). 3(c).
PN182
VICE PRESIDENT HATCHER: You haven't pressed (c). Is it - - -
PN183
MR WARREN: No, I press (c).
PN184
VICE PRESIDENT HATCHER: You press (c).
PN185
MR WARREN: (c) hasn't been crossed out. I thought (d) was the one that was knocked out.
PN186
MR CRAWSHAW: We objected to (c).
PN187
VICE PRESIDENT HATCHER: What's the relevance of (c)?
PN188
MR WARREN: Well that then links into the 29 July, your Honour. 29 July, there was a meeting and Mr Josifoski's evidence will be that's the first time he became aware of a document in hand called a draft EBA.
PN189
VICE PRESIDENT HATCHER: So is (b), (c) and (d) a description of a single discussion being the one referred to in (e)?
PN190
MR WARREN: Yes, your Honour. And supported by tab 18, which is attached there from (e).
PN191
VICE PRESIDENT HATCHER: Mr Crawshaw, perhaps contrary to what I indicated earlier, perhaps it should go in subject to relevance in that it's one interconnected discussion and it might not be appropriate to divide it up into parts that go in and parts that go out.
PN192
MR CRAWSHAW: It's just that the tab has nothing - is irrelevant, it doesn't reveal anything of relevance to - - -
PN193
MR WARREN: It places the O'Malley job.
PN194
MR CRAWSHAW: Well O'Malley job on one day.
PN195
VICE PRESIDENT HATCHER: I propose to and again perhaps contrary to what I said earlier, propose to admit paragraphs 3(c) to (e) subject to submissions on them. Any other objections, Mr Crawshaw?
PN196
MR CRAWSHAW: Paragraph 12, second and third sentence. Well I suppose second sentence not third sentence. It's just a - - -
PN197
MR WARREN: "I do not believe"?
PN198
MR CRAWSHAW: Yes.
PN199
MR WARREN: Well I don't press that, it's his belief.
PN200
VICE PRESIDENT HATCHER: I mean the CFMEU could have - is this talking about the notice of employee representation rights, the CFMEU could have made that - given that notice anyway, couldn't they?
PN201
MR WARREN: There's no evidence of it.
PN202
VICE PRESIDENT HATCHER: No. So we'll strike the second sentence of paragraph 12.
PN203
MR CRAWSHAW: There's no further objections to that statement.
VICE PRESIDENT HATCHER: Subject to that omission, the statement of Petar Josifoski made for the purpose of the Royal Commission into Trade Union Governance and Corruption dated 27 July 2015 will become exhibit 3.
EXHIBIT #3 WITNESS STATEMENT OF PETAR JOSIFOSKI MADE FOR THE PURPOSE OF THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION, DATED 27/07/2015
PN205
MR WARREN: Returning to Mr Josifoski - - -
PN206
MR CRAWSHAW: Are you not tendering the transcript?
PN207
MR WARREN: Yes. I didn't know that Mr Josifoski had to be out of the room for the tendering of the transcript.
PN208
MR CRAWSHAW: No.
PN209
MR WARREN: But why I hesitate in tendering the whole of Mr Ward's affidavit is that it contains the statement of Rosa Josifoski and Vince Spatolisano and then the transcript of those persons as well. I was - if it's easier to tender the whole thing - - -
PN210
MR CRAWSHAW: I could probably - if we want to deal with all the evidence at once I could probably deal with those objections now. All I've got to do is cross-reference what's going in. I notice for example and I apologise for this, it's my mistake, I hadn't identified that Mr Ward in annexing all those documents had restricted them. But I notice - so the consequence of that obviously my objection to relevance will be minimised. But also I notice it's been so restricted that it doesn't include the cross-examination of the witnesses. For example, Mr Josifoski, and obviously when it comes to tendering our evidence I will be wanting to put that cross-examination in and that means when your Honour's chambers asked us to identify the evidence that we were seeking to rely on, we didn't include that transcript which is in the appeal book, which Mr Ward hadn't gone to relating to cross-examination.
PN211
VICE PRESIDENT HATCHER: Why don't we mark the affidavit of Mr Ward as an exhibit. If either party when Mr Josifoski gives evidence wants to take him to any part of that transcript they can, and we'll take it from there.
PN212
MR CRAWSHAW: Well we want to tender it as well but we can do that later.
PN213
VICE PRESIDENT HATCHER: Yes, tender the whole of the affidavit and the whole of the transcript and then if parties want to come back and say any part of the transcript should be excluded, they can do that later. Is that suitable?
PN214
MR CRAWSHAW: Thank you, your Honour.
PN215
MR WARREN: Yes, absolutely.
VICE PRESIDENT HATCHER: I'll mark the affidavit of William Ward affirmed on 15 September 2015 as exhibit 4.
EXHIBIT #4 AFFIDAVIT OF WILLIAM WARD AFFIRMED ON 15/09/2015
PN217
Will Mr Josifoski have a copy of that affidavit in the witness box?
MR WARREN: He will, he will have one provided to him.
<PETAR JOSIFOSKI, RECALLED [11.26 AM]
EXAMINATION-IN-CHIEF BY MR WARREN [11.26 AM]
PN219
MR WARREN: His Honour's Associate has just handed you a binder, Mr Josifoski. That is the affidavit of Mr Ward and all of its attachments that have been admitted provisionally in these proceedings as exhibit 4. So if you're referred to exhibit 4, that's it. That's the evidence, your Honour.
VICE PRESIDENT HATCHER: Thank you. Mr Crawshaw.
CROSS-EXAMINATION BY MR CRAWSHAW [11.27 AM]
PN221
MR CRAWSHAW: Mr Josifoski, can I take you firstly to exhibit 1, the most recent evidence about this point. I'm just trying to understand that dates. You say in paragraph 6 that on 15 July you received an email with the form F17, being the statutory declaration that you signed five years ago?‑‑‑(No audible reply).
PN222
You have to say yes rather than nod?‑‑‑Sorry, yes.
PN223
In paragraph 7 you're referring to the same email:
PN224
In the email which contained the form F17
PN225
?‑‑‑Yes.
PN226
Then you see that email says:
PN227
My lawyer asked me as to whether it's contents were correct and that the events in the statement that took place, actually did take place.
*** PETAR JOSIFOSKI XN MR WARREN
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN228
?‑‑‑Yes.
PN229
That was in the email on 15 July?‑‑‑From what I recall, yes.
PN230
Well it says:
PN231
In the email which contained the form 17.
PN232
That's a reference to the email that was sent to you on 15 July, wasn't it?‑‑‑Sorry, can you repeat that?
PN233
In paragraph 7, when it refers to the email which contained the form F17, it's a reference to the email referred to in paragraph 6?‑‑‑Yes.
PN234
So in the same email that sent you the form F17, this question was asked to you by the lawyer?‑‑‑If that's in the email, yes.
PN235
Sorry?‑‑‑If it was in the email, yes.
PN236
No well it's your evidence. Do you know?‑‑‑Well I don't have the email in front of me.
PN237
So you can't remember?‑‑‑Well I don't recall if it was in that exact email, if it was the one after it or the one before it.
PN238
You can't remember a document that you received on 15 July this year?‑‑‑No.
PN239
But you can remember what happened five years ago, can you?‑‑‑Yes.
PN240
Your memory's improved, has it?‑‑‑No.
PN241
But you can remember things about documents five years ago, can't you?‑‑‑Yes.
PN242
You've given lots of evidence about that?‑‑‑Yes, that's correct.
PN243
But you can't remember about a document you received, what, July. How long ago is that?‑‑‑Well I remember receiving the document.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN244
Yes, but you don't remember what was in it?‑‑‑No.
PN245
Well why when you said in paragraph 7, in the email which contained the form F17, my lawyer asked me if you can't remember?‑‑‑Can you repeat that?
PN246
Did you remember on 14 September that in the email which contained the form F17 the lawyer asked you as to whether the contents were correct?‑‑‑Yes, he did.
PN247
You remembered that on 14 September, did you?‑‑‑The email I received from my lawyer. The emails at that time because there was quite a few sent that day.
PN248
There was more than one?‑‑‑Yes, from what I recall, yes.
PN249
Well why didn't you say "emails" plural in paragraph 6 and 7?‑‑‑I'm not sure.
PN250
Well was there one or more?‑‑‑I can't recall. I know there was emails so I'd say there'd be more than one.
PN251
You don't know?‑‑‑I don't recall.
PN252
You don't know?‑‑‑I don't recall.
PN253
Now you don't know?‑‑‑(No audible reply).
PN254
If you can't recall when I'm asking you now in the witness box about whether there's more than one email, you don't know?‑‑‑Yes, there was more than one.
PN255
There was more than one?‑‑‑Yes.
PN256
So why didn't you mention more than one?‑‑‑I don't know.
PN257
There was more than one from your lawyer, was there?‑‑‑Pretty sure.
PN258
Pretty sure. You don't know, is that right?‑‑‑(No audible reply).
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN259
You can't tell the Commission whether there was more than one from your lawyer?‑‑‑Yes, there was definitely more than one.
PN260
All I'm asking you is about the email which contained the form F17?‑‑‑Yes.
PN261
That's the email referred to in paragraph 6?‑‑‑Yes.
PN262
There was only one email contained in the form F17 wasn't there?‑‑‑Yes.
PN263
In that email, did the lawyer ask you as to whether the contents were correct?‑‑‑I don't recall.
PN264
In paragraph 7, you're saying it was in that email, the email that contained the form F17?‑‑‑I suppose it was.
PN265
Well you don't know. You'll put anything in a statement won't you?‑‑‑No.
PN266
Well you put something in there that you don't know?‑‑‑Only what I believe is true and correct.
PN267
Yes, but you put that in there not knowing didn't you?‑‑‑Well I must have known, I must know obviously if I put it in the statement and have signed.
PN268
Why is that the case? You made a statement five years ago that contained material that wasn't right, didn't you?‑‑‑No.
PN269
You didn't?‑‑‑Which statement are you referring to?
PN270
The stat dec?‑‑‑I didn't sign a stat dec five years ago.
PN271
You didn't sign a stat dec?‑‑‑Not that I remember - recall signing, no.
PN272
Well you've seen a stat dec with your signature on it, haven't you?‑‑‑Yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN273
You say you didn't make that signature?‑‑‑I'm not saying I didn't make that signature. What I'm saying is I didn't sign a stat dec.
PN274
You signed a statement did you?‑‑‑I'm not too sure what I signed. The union officials gave me a few documents to sign in regards to lodging my EBA.
PN275
We'll come back to that. Paragraph (a) you say:
PN276
I informed my lawyer that the events did not take place.
PN277
?‑‑‑Yes.
PN278
This is an answer to the question in paragraph 7?‑‑‑Yes.
PN279
Did you do that in one of these other emails that you might have been talking about on that day?‑‑‑Possibly.
PN280
Well do you remember when you did it?‑‑‑Yes, it was 2 or 3 o'clock in the morning while I was on the other side of the world.
PN281
But after you'd received your lawyer's email referred to in paragraph 6 and 7?‑‑‑Yes.
PN282
Did you read it? Did you read the stat dec then?‑‑‑Yes.
PN283
Did you reply straight away?‑‑‑Yes.
PN284
So that means you replied on - well, where were you?‑‑‑America.
PN285
So it was either the - might have been the day before was it in America but - - -?‑‑‑Isn't it a day after, America, because they come after, yes.
PN286
16 July perhaps?‑‑‑Depending on the time, yes.
PN287
When you said that the events did you take place, you were in effect saying that the form F17 contained facts which were wrong?‑‑‑Correct.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN288
You're not suggesting you've got a better memory now of those events than in 2010, are you?‑‑‑Say that again?
PN289
You're not suggesting now that you've got a better memory of those events now than in 2010?‑‑‑No.
PN290
MR WARREN: Which events?
PN291
MR CRAWSHAW: The events in paragraph (a)?‑‑‑I specifically remember those events did not take place that we're referring to in number (a), paragraph (a).
PN292
Did you know that in 2010?‑‑‑I didn't even know that there was supposed to be any events taking place in 2010.
PN293
But you had knowledge that those events didn't take place in 2010?‑‑‑I didn't know that those events needed to take place because I was never explained them, which I never knew until my lawyer sent me an email saying did these events take place.
PN294
Yes, but what I'm asking - let me ask it this way. If shortly after you entered into the agreement with the CFMEU in 2010 you'd asked your lawyer to provide the documents and he'd sent you the form F17, you would have been able to tell him then that the events did not take place. Is that right?‑‑‑Yes. If he - - -
PN295
Indeed - sorry, go on?‑‑‑So back in 2010 - - -
PN296
Yes?‑‑‑If he gave me the form then, right, if I knew him and he gave me the form then and he asked me - - -
PN297
Or some other lawyer or someone?‑‑‑Yes, did these events take place, I could, yes, say no, they didn't take place.
PN298
You would have been able to do that at any time between 2010 and 2015?‑‑‑If I knew about the events - - -
PN299
If you looked at the form F17?‑‑‑Yes. Yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN300
There was nothing to stop you asking for the form F17 at any time?‑‑‑I didn't even know the form F17 ever existed.
PN301
Well there's nothing to stop you asking for the documents concerning the agreement's approval at any time after it was approved in 2010 was there?‑‑‑I didn't know the approval process, I didn't know there was documents that go with the approval process.
PN302
You didn't know there were documents at all?‑‑‑No, not for the approval. Not in 2010.
PN303
I think you agree that you signed the - - -?‑‑‑I signed several paperwork on that day, yes.
PN304
What do you think they were for?‑‑‑For the lodgement of the EBA.
PN305
With who?‑‑‑With the union.
PN306
You didn't know it was to be lodged with the Fair Work Commission?‑‑‑It wasn't explained to me, no.
PN307
So you know your wife received documents relating to that in 2010, don't you?‑‑‑I'm not sure which documents. I know we got the EBA sent to us.
PN308
You know the union sent to your company documents relating to the approval by the Fair Work Australia, don't you?‑‑‑I wouldn't be 100 per cent, my wife handles all that area.
PN309
What, you haven't even looked at the evidence that was before the Royal Commission?‑‑‑Sorry, explain that.
PN310
You haven't looked at the evidence that was before the Royal Commission on this point?‑‑‑Yes.
PN311
Have you looked at your wife's evidence?‑‑‑Yes.
PN312
You know she was sent documents relating to the approval?‑‑‑Yes, now after the Commission, not prior to the Commission.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN313
No, but she knew back in 2010, didn't she?‑‑‑I don't know, why are you asking me? You should as her.
PN314
Well you've seen the documents, haven't you?‑‑‑Well now I have, yes. Not back then.
PN315
But your company - you know now that your company have received documents back in 2010 relating to the approval by the Fair Work Commission don't you?‑‑‑I wouldn't say - yes, now I do, yes.
PN316
Your company - let's forget about you personally. Your company could have asked for those documents at any time, couldn't it?‑‑‑I suppose. I'm not 100 per cent sure what my rights are. They weren't explained to me when I was in the meeting with the EBA with the union. They just said sign here and we'll look after everything, just remember that. I would have done anything they told me to do to make sure I got that job that I was allowed to work on, to do the commercial work. I was only in business, what, a month or so, not even, so like I said if they asked me to jump, I would have jumped.
PN317
Now could I - have you got exhibit 2, the same as the first statement to the Royal Commission - - -?‑‑‑27 May?
PN318
Yes?‑‑‑Yes, 27 May, my statement.
PN319
Just by way of simple correction, I think that statement, if we go to paragraph 6 in the second line, the word "tender" - no, I'll withdraw that. Paragraph 8, I think you agreed in the Royal Commission that the 2015 date should have really been 2010 there?‑‑‑Yes.
PN320
Can we just move onto exhibit 3, which is the supplementary statement for the Royal Commission. You got that?‑‑‑Yes. That's the one dated 27th of the 7th?
PN321
Now, just returning to the point I cross-examined you about first, you say in paragraph 7 of that statement:
PN322
The first time I can recall sighting the signed employer declaration was when it was sent to me by my lawyer last week.
PN323
?‑‑‑Yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN324
You're referring there to the email of 15 July that we went to earlier?‑‑‑Yes.
PN325
Yes?‑‑‑With the F17 form in it.
PN326
Sorry?‑‑‑The one that's got the F17 form attached to it.
PN327
Yes?‑‑‑Yes.
PN328
And so this statement was made on 27 July. Just go to the end?‑‑‑Yes.
PN329
When you're saying "last week" it's actually more like two weeks before?‑‑‑Well, what day was the 27th? The day.
PN330
Well, I'd ask you to assume it was a Monday?‑‑‑So, yes, well, it depends. I mean, the week before. It could've been the full week or from when it was that week before. When I was oversees like it was stated in the statement.
PN331
Sorry?‑‑‑Yes, the week before or the week before that, whichever one it was.
PN332
Well, I just want to be quite clear, it wasn't the last week, was it?‑‑‑It depends which day of the week is the last day of the week for you.
PN333
Well, what's the last day of the week for you?‑‑‑For me usually it's a Friday.
PN334
A Friday?‑‑‑Yes. Friday or it varies, because it's the last day I work.
PN335
So it still wasn't last week on your definition. I'm just trying to get it clear, Mr Josifoski. It was two weeks before, wasn't it? I'd ask you to assume 15 July was the Wednesday two weeks or 12 days before the 27th, the Monday?‑‑‑Yes. Well, that's last week.
PN336
You're rather loose with your ‑ ‑ ‑?‑‑‑Well, you're saying I did it on a Wednesday. I received it on a Wednesday.
PN337
No. You ‑ ‑ ‑?‑‑‑One full week had passed.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN338
Your evidence is you received it on the 15th or the 16th. Sixteenth in America, wasn't it. So it might've been the Thursday?‑‑‑Yes. No, the following Monday, so it was within two weeks.
PN339
Yes. That's all I asked you?‑‑‑So I was in one present week and I said that obviously that last week, which is part of the week before.
PN340
All right. All right. And paragraph 10, you said at the time that you signed the EBA the only document you recall before you is the EBA?‑‑‑Yes.
PN341
You've told us there were other documents there on that day. Not in your statement, I'm talking about just earlier in your evidence. Didn't you say there were other documents?‑‑‑It was the EBA.
PN342
Nothing else?‑‑‑Not that not to my knowledge at that day, no.
PN343
Okay. I thought you said there was a few documents or many?‑‑‑I'm sorry if I made an error, but that ‑ ‑ ‑
PN344
So that was wrong when you said that, was it?‑‑‑It was one big document of the EBA document.
PN345
It was only one document?‑‑‑I don't know how many documents. They had a big file of paper in front of me.
PN346
So you don't know whether there were other documents other than the EBA?‑‑‑No. The way they ‑ ‑ ‑
PN347
You don't go any further in your statement in saying that's the only document that you can recall?‑‑‑I was there to sign the EBA.
PN348
Yes?‑‑‑They had one big document of papers which was ‑ ‑ ‑
PN349
Okay?‑‑‑The title on it was said the EBA on it, so therefore I thought I was signing the EBA. It wasn't like all you know, title of different documents. It was one document in a file.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN350
Yes. I'm just saying, Mr Josifoski, your statement at paragraph 10 goes no further than saying you can't recall any other documents, doesn't it?‑‑‑That's right.
PN351
So that means there could've been other documents there?‑‑‑Maybe hidden inside the EBA, yes.
PN352
No, irrespective of the EBA?‑‑‑Well, yes, there could've been other documents.
PN353
And indeed earlier today you told us there were other documents. Do you recall that?‑‑‑No. I thought I said only one document.
PN354
So if you said earlier that there were other documents, or something like that it was suggested there was more than one document, that would be wrong, would it?‑‑‑Can you repeat the question, sorry? I'm starting to lose ‑ ‑ ‑
PN355
If you had said earlier in your evidence today that there was more than one document before you on that day when you signed the EBA, that evidence would be wrong, would it?‑‑‑Yes, it could be incorrect. I'm not ‑ ‑ ‑
PN356
Well, is it incorrect or not? What's your recall now?‑‑‑Well, I can't recall what I said.
PN357
No. Okay?‑‑‑You asked me did you ask me how many documents there were, or was there one document or ‑ ‑ ‑
PN358
Well, what can you recall?‑‑‑You're just talking in I don't know. It's I'm finding it hard to understand you in some cases. You're just going in circles.
PN359
Yes. That's because you don't have any clear recollection of what happened that day?‑‑‑That day I do. It was quite a significant day.
PN360
Well, why do you use words like, "recall" in paragraph 10?‑‑‑That's what I recall being in front of me, the EBA.
PN361
No, you say:
PN362
The only document I can recall.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN363
?‑‑‑Yes, was the EBA.
PN364
See, what I want to suggest to you is that there were other documents in front of you that day. Can you say yes or no about that?‑‑‑No.
PN365
SENIOR DEPUTY PRESIDENT HAMBERGER: Sorry, you did say you signed a number of papers?‑‑‑Yes.
PN366
So what's the difference between papers and documents?‑‑‑Well, a document ‑ ‑ ‑
PN367
What is it you were signing? Okay, you signed the EBA?‑‑‑Yes.
PN368
But what about all these other things you signed? What did you think they were?‑‑‑There was a paper that was there was documents like a folder or a page like this that was stapled where we went through the EBA, right. And about all the what the EBA conditions were and all the rest of it, which we went through. And then they said, "All right, you need to sign here, sign here, sign here, so we can lodge the EBA."
PN369
But what did you think you were signing?‑‑‑The EBA.
PN370
You thought you had to do lots of signatures on the EBA, or were they other papers?‑‑‑Well, they were with that document. It didn't have them separate saying, "This is a document for the EBA."
PN371
So they didn't tell you what they were?‑‑‑No. No, they said to me, "You need to sign these papers so we can get the EBA through so you can get to work and work on your job." It's like, you know ‑ ‑ ‑
PN372
And you didn't read what they were putting before you?‑‑‑Well, I knew inevitably I had to sign an EBA because I've worked on the other side of the fence. I've been in the construction industry for many years, and everyone's always had an EBA. So plus with the stories to be able to ‑ ‑ ‑
PN373
No, that's not quite the question I asked?‑‑‑Yes, but ‑ ‑ ‑
PN374
That's not quite the question I asked you though. So you signed a whole load of papers?‑‑‑Yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN375
But you didn't read them?‑‑‑No.
PN376
You didn't know what they were?‑‑‑No.
PN377
Okay?‑‑‑I shouldn't have trusted them in signing the papers.
PN378
That's all right. Thanks?‑‑‑Sorry. Very sorry.
PN379
MR CRAWSHAW: So you're making it up as you go along when these questions are asked, aren't you?‑‑‑No.
PN380
You don't really remember what happened five years ago at all?‑‑‑Yes, I do. Can I just say, I mean ‑ ‑ ‑
PN381
No, please just answer the questions. You say also in paragraph 10 that you didn't sign the employer declaration in the presence of Ms Roach. And you didn't attend the Commonwealth Bank of Australia Dickson branch. What I want to suggest to you is that you can't exclude that possibility?‑‑‑Yes, I can.
PN382
It was five years ago, Mr ‑ ‑ ‑?‑‑‑Yes, it was a significant day in my life. I remember it quite well after signing the EBA and signing the cheque to the union. I me and my wife, we shook hands with Fihi and Tony that day, talked outside, and my I returned straight back to work because I had boys working on a construction site.
PN383
So similarly I want to suggest to you that you may have been made aware that there must be a period of 21 days consultation?‑‑‑That I was made aware by my lawyer when he asked me if those events took place.
PN384
Yes?‑‑‑On, you know, when I was in America this year.
PN385
Yes. But I want to suggest that you may have been made aware of that at the time too in 2002?‑‑‑Well ‑ ‑ ‑
PN386
You can't exclude that possibility, can you?‑‑‑Yes, I can.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN387
And what I also want to suggest to you is that you may have been given the notification in writing regarding the employee's rights to have a bargaining representative back in 2010?‑‑‑No, never happened.
PN388
Yes, but it may have happened and you can't remember?‑‑‑No, it didn't happen.
PN389
You can't exclude that possibility, can you?‑‑‑Yes, I can.
PN390
And I want to suggest that you could've been told that there had been a meeting between your employees and the CFMEU about the agreement?‑‑‑No. I couldn't, I only had three workers at that stage, and they worked with me every day.
PN391
Yes. But you could've been told by the union then on 5 August when ‑ ‑ ‑?‑‑‑No, they never told me anything about that.
PN392
You can't exclude that possibility that you were told on that day?‑‑‑Yes, I can.
PN393
Or on any other day?‑‑‑Yes, I can. They never mentioned anything about representational rights or having a vote or anything to do with that.
PN394
Well, so, you can't exclude the possibility that five years ago you were told that a vote had been taken?‑‑‑No, there was no vote.
PN395
You don't know that?‑‑‑Yes, I do.
PN396
How?‑‑‑Because there was no vote. I need to be notified.
PN397
You - sorry?‑‑‑I need to be notified about a vote. I've got to get the boys together to vote on the EBA.
PN398
No. They can have a vote without you being there?‑‑‑Well, if they'd had it afterhours maybe they did, but I don't think there was ever a vote taken. There never was.
PN399
Yes. But they could've had a vote and you not know about it. That's what I'm suggesting for a start?‑‑‑It would be very hard, but, yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN400
Yes?‑‑‑Yes, as a suggestion maybe.
PN401
And you can't exclude the possibility that you were told by the union that they'd made a vote?‑‑‑No, I can exclude that. They never told me anything like that.
PN402
VICE PRESIDENT HATCHER: Was 4 August 2010 a working day?‑‑‑Yes, it would've been a Wednesday.
PN403
Did you have employees on a job on that day?‑‑‑Yes.
PN404
And there was three of them, was there?‑‑‑Yes.
PN405
MR CRAWSHAW: Can we just go to ‑ ‑ ‑
PN406
VICE PRESIDENT HATCHER: Before you move on, are you personally present at all times while they're working?‑‑‑Yes, I work every day on the tools with them. I don't have the luxury to point fingers.
PN407
MR CRAWSHAW: Yes, but you can't exclude the possibility that you were off the job at some time on 4 August?‑‑‑Not off the job. I would've been on the job.
PN408
You can't remember five years ago what you were doing on that day?‑‑‑On some instances I definitely remember the certain dates.
PN409
What, the whole day?‑‑‑No, not the whole day.
PN410
Yes?‑‑‑Certain events on certain days.
PN411
I was going to take you now to the transcript of the evidence you gave at the Royal Commission?‑‑‑Yes.
PN412
Perhaps I should just ask you first can you go behind tab E I think it should be. Is that the evidence of the date of the Wednesday 29 July, is it?‑‑‑Yes.
PN413
Yes. Now, I just want you to firstly go ahead to, if you look at the pages on the bottom, 1356. And you see at line 30 there's an entry, "Examination by Mr Agius"?‑‑‑Yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN414
And do you remember being asked questions by Mr Agius for the CFMEU about this matter and other matters not relevant to this particular case?‑‑‑Yes.
PN415
Do you remember that?‑‑‑I remember being cross-examined by Mr Agius, yes.
PN416
Yes. And your answers to him were truthful, were they?‑‑‑Of course.
PN417
Or you were trying to be truthful?‑‑‑Yes. I was being honest and being truthful, yes.
PN418
Now, if we just go back to page 1343, you say at 5 I probably should take you to the bottom of page 1342 to start with. You see at line 44 you're asked you attached at tab 20 an employer's declaration in support of application for approval of an enterprise agreement:
PN419
When did you become that you'd signed this document?
PN420
You see that?‑‑‑Yes.
PN421
You know that you were being asked about the Form F17 there?‑‑‑That's what it seems to say, yes.
PN422
Well, you understand that's what you're being asked about? I could ‑ ‑ ‑?‑‑‑Yes.
PN423
And you were asked, "When did you become aware that you'd signed this document?" And you answered, "Last week". You're once again referring to that date in America, 15 or 16 July?‑‑‑Yes.
PN424
Under your extended definition of "last week"?‑‑‑Yes.
PN425
This is 29 July. And you see at line 12 you were asked:
PN426
Do you know whether you did sign it on that day or not?
PN427
?‑‑‑Yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN428
And you said:
PN429
I couldn't tell you. I signed a few papers in front of me pertaining to the EBA.
PN430
?‑‑‑Yes.
PN431
So on that day you gave evidence that although you couldn't tell Mr Stoljar, counsel assisting, whether you'd signed the F17, you'd signed a few papers in front of you pertaining to the EBA that day?‑‑‑Yes.
PN432
And that evidence was true, was it?‑‑‑Yes.
PN433
Well, that's not what you've just told us, is it?‑‑‑Yes, I did. It was a pile of papers. They asked me to "Sign here, sign here, sign here." How's that not signing paperwork that's in front of you?
PN434
Well, there were more I see, you're drawing the distinction that you drew to the Tribunal Member's questions ‑ ‑ ‑?‑‑‑Commission's.
PN435
‑ ‑ ‑between papers and documents there, are you?‑‑‑I'm not understanding what you're saying.
PN436
Well, just going back to those questions, when you said, "I signed a few papers", in answer to counsel assisting, you were saying you had signed a few documents, weren't you?‑‑‑A few papers.
PN437
You were saying you'd signed a few documents, weren't you?‑‑‑Does it say documents there, no.
PN438
But when you said papers you meant documents?‑‑‑No.
PN439
And when you said ‑ ‑ ‑
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN440
VICE PRESIDENT HATCHER: So what do you mean when you say "papers"? Do you mean pages or ‑ ‑ ‑?‑‑‑Well, yes, pages. Pieces of paper as in like, you know, when they got a paper like this and then they got the little tab that says "sign here" and they go, "Sign here, sign here, sign here." So I signed it where they asked me to sign I signed.
PN441
MR CRAWSHAW: Yes. But in answer to that question, do you know whether you did signed it on that day, you knew that question was about the F17, didn't you?‑‑‑At this time, yes.
PN442
Yes. And in answering:
PN443
I couldn't tell you. I signed a few papers in front of me pertaining to the EBA
PN444
you were conceding the possibility that you signed the F17 on that day?‑‑‑I signed I possibly signed the back page of it, yes.
PN445
Well, you didn't know what you signed, do you?‑‑‑No, because the union told me it was all pertaining to the EBA.
PN446
Yes. So why are you bringing in this back page then? Why are you suggesting a back page, if you don't know what you signed?‑‑‑I'm not suggesting. When I said back page it's the back page of the F17 form, which I now know I've apparently signed.
PN447
Are you suggesting the back page wasn't with the rest of the F17 when you signed it?‑‑‑I couldn't tell you. I wouldn't know.
PN448
Yes. So you may have signed the whole of the F17 on the back page; that's what you're saying?‑‑‑Possibly.
PN449
Yes. Now, perhaps you should have the F17 in front of you. I'm just trying to see, I think it might be in that folder?‑‑‑Yes, I've got it here.
PN450
You've got it separately, have you?‑‑‑Is this the ‑ ‑ ‑
PN451
The F17 that I've been asking questions about, and that you say you first ‑ ‑ ‑
PN452
MR WARREN: It starts at page ‑ ‑ ‑
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN453
MR CRAWSHAW: Behind tab 3, isn't it?
PN454
SENIOR DEPUTY PRESIDENT HAMBERGER: Sixty-six.
PN455
THE WITNESS: Sixty-six, yes.
PN456
MR WARREN: Yes. Thank you. That's actually the draft.
PN457
MR CRAWSHAW: Sorry, tab 4.
PN458
SENIOR DEPUTY PRESIDENT HAMBERGER: Sixty-seven.
PN459
THE WITNESS: That's the one dated 1 August?
PN460
MR CRAWSHAW: Yes?‑‑‑Okay. Yes.
PN461
Well, it starts on 1 August but we won't go into that at this point in time?‑‑‑But that's approved on the 5th. Yes, it's not getting into that.
PN462
MR WARREN: It starts at page 87.
PN463
COMMISSIONER McKENNA: I'm sorry?
PN464
MR WARREN: There's a draft beforehand, Commissioner, I think. A document headed Draft beforehand. But 87 appears to be the final document.
PN465
MR CRAWSHAW: I think it's probably better if we work off copies.
PN466
COMMISSIONER McKENNA: The stamped copy is found at least at page 36.
PN467
THE WITNESS: Well, I've got it behind my second statement.
PN468
MR CRAWSHAW: Yes. It's just that there's so many documents. I want to make sure I'm asking you about the one that's before the Commission.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN469
MR WARREN: You're right, Commissioner, it's 66. It is 66. Yes.
PN470
MR CRAWSHAW: So it's behind your second statement to the Royal Commission. Is that what you're looking at?‑‑‑That's what I've got, yes.
PN471
COMMISSIONER McKENNA: All right.
PN472
MR CRAWSHAW: And, sorry, just returning to the transcript at page 1344. Do you see on page 1344 at line 9?‑‑‑Yes.
PN473
You were asked about the entry at 2.2?‑‑‑Yes.
PN474
And you were asked whether that was discussed at the meeting?‑‑‑Yes.
PN475
And you say no?‑‑‑Yes.
PN476
I want to suggest to you that it's possible that it was discussed and you've just forgotten because it was five years ago?‑‑‑No, because I never had any contact with the CFMEU until 22 July was my very first point of contact with them, from what I can remember, from my diary entries.
PN477
Yes. But I just want to suggest to you that those dates were discussed at the meeting?‑‑‑No.
PN478
And you've forgotten about it?‑‑‑No.
PN479
What I'm suggesting is it's possible.
PN480
VICE PRESIDENT HATCHER: Sorry, Mr Crawshaw, I just missed that. What was the date when you said you had your first contact with the CFMEU?‑‑‑Twenty-second.
PN481
22 July?‑‑‑Of July 2010 was the first day I ever and that was by phone that conversation.
PN482
MR CRAWSHAW: And how do you know that?‑‑‑Because I've got it written down in my diary.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN483
What, it says "first contact", does it?‑‑‑It says phone call ‑ ‑ ‑
PN484
Yes?‑‑‑To call union or call Fihi to discuss getting an EBA to do commercial works.
PN485
Who is Fihi?‑‑‑Fihi Kivalu.
PN486
All right. So your diary says call Fihi?‑‑‑Yes.
PN487
And how did you know who Fihi was?‑‑‑Well, I was told to ring him because he was a union officer to start getting an EBA into place.
PN488
But you diary doesn't say that, does it?‑‑‑It says "call Fihi".
PN489
Yes. Well, that could mean you'd met Fihi before and ‑ ‑ ‑?‑‑‑No. No.
PN490
‑ ‑ ‑ he told you to call him?‑‑‑No.
PN491
How do you know?‑‑‑Because I know. That's the ‑ ‑ ‑
PN492
You remember that from five years ago too, do you?‑‑‑Yes.
PN493
I suggest you can't say that you can remember that from five years ago?‑‑‑Yes, I can. I've got it written in my diary. There was no other commercial work prior to that.
PN494
Sorry?‑‑‑There was no other commercial work prior to that. I never needed an EBA.
PN495
When did you first give attention to that question of when when did you first think about, "When did I first have contact with the CFMEU?"?‑‑‑When did I first think of that?
PN496
Think about it, yes?‑‑‑When I was asked.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN497
When?‑‑‑I think it was when I was at the Commission.
PN498
The Royal Commission?‑‑‑Yes. Not during the Commission, by the counsel assisting.
PN499
VICE PRESIDENT HATCHER: So when did you start your first commercial job?‑‑‑Eighth 5 or 8 July. Right around the time of signing the EBA.
PN500
MR CRAWSHAW: July?‑‑‑2010.
PN501
VICE PRESIDENT HATCHER: You signed the EBA on 5 August?‑‑‑Yes.
PN502
But you said you started the first commercial job on 5 or 8 July; is that right?‑‑‑Yes, when I started. Because I had spoken to Fihi and I had been told by my gear supplier that if I wanted to do this job I would need a union EBA, so I therefore I spoke to Fihi and said, "Yes, I'm well on board for getting an EBA. Let's get it sorted, so I can continue doing this job." So I'd already commenced starting work on that commercial job prior to me signing the EBA.
PN503
MR CRAWSHAW: In any event ‑ ‑ ‑
PN504
VICE PRESIDENT HATCHER: Sorry. When were you told that you would need an EBA on that job?‑‑‑It was after I was while I was tendering for it. I'd say probably around between 17th and 19th I would've received a phone call from Ned, my gear ‑ ‑ ‑
PN505
Of June?‑‑‑No, July. Saying you need to speak to the union because they've obviously found out that I have tendered for the job; that I won the job, but I didn't have an EBA; that I needed to get in contact with them and organise an EBA so I'd be able to proceed continue doing the job.
PN506
You were tendering for the job in the period 17 to 19 July?‑‑‑I tendered a little bit earlier, but I had won it around that time.
PN507
I thought you said you started on 5 or 8 July?‑‑‑Fifth or 8th? I'd have to check my diary notes, but I know it was just right on that time, and I'd already started the job before I signed the EBA.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN508
I'll ask you again, do you remember when you started that first commercial job?‑‑‑Actually started working on it, building on it, would've been mid-July.
PN509
Mid-July?‑‑‑Yes.
PN510
MR CRAWSHAW: You don't know what date, do you?‑‑‑I can't give you the exact date.
PN511
No?‑‑‑But it was mid-July we started working on that job.
PN512
VICE PRESIDENT HATCHER: So when did you tender for the job?‑‑‑Prior to that, I suppose. Within a month no, it would be more than a month of that.
PN513
What, in June?‑‑‑Yes. Like, I would have got plans, and I just would've quoted the job and then sent them off.
PN514
So you said you were told during the tendering process that you'd have to have an EBA?‑‑‑Yes, towards the end. Just before I started the job.
PN515
So when were you told that?‑‑‑Like I said, early to mid-July.
PN516
Early to mid-July.
PN517
MR CRAWSHAW: But in any event you can be sure that it wasn't until 22 July that you spoke to anyone from the CFMEU?‑‑‑That's correct.
PN518
You're absolutely certain about that?‑‑‑I'm 100 per cent certain on that.
PN519
Well, if I can just take you back to your statement on 27 May, which is your second statement to the Royal Commission?‑‑‑Yes.
PN520
VICE PRESIDENT HATCHER: Can you just slow down, Mr Crawshaw, please.
PN521
MR CRAWSHAW: It's exhibit 2, I'm sorry.
PN522
VICE PRESIDENT HATCHER: The first statement.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN523
MR CRAWSHAW: It's the first statement. Yes. You see in paragraph 7 sorry, it's the first statement, 27 May. Sorry, Mr Josifoski. See paragraph 7 there?‑‑‑Yes.
PN524
You say there, "Following this conversation", and that's the conversation with the man you were dealing with for tendering?‑‑‑Yes.
PN525
"On 18 July I called the CFMEU ACT and spoke to Tony Vitler". You see that?‑‑‑Yes.
PN526
So on your previous evidence you had come into contact with the CFMEU prior to 22 July?‑‑‑Yes.
PN527
Yes. Well, why were you so categorical that you hadn't?‑‑‑Because I hadn't spoken to them.
PN528
Yes. You told us before your first contact with CFMEU was 22 July, and all this started because you had a diary entry that said, "call Fihi"?‑‑‑Yes.
PN529
And now you've given other evidence that it was 18 July when you had contact with Mr Vitler of the CFMEU?‑‑‑And that's what it must have been written in the diary. I don't have my diary notes in front of me.
PN530
Well, for whatever reason you'll say anything in the witness box, won't you?‑‑‑No.
PN531
About dates?‑‑‑No.
PN532
About conversations?‑‑‑No.
PN533
All right. Let's go back to the transcript that I was taking you to before we digressed. Page 1344. I think I've already asked you what I was going to ask about that actually. Perhaps I should ask you this: is it possible that five years ago you were told by someone else other than the union that a vote took place, and you've forgotten that?‑‑‑No.
PN534
Can I just come back to this meeting with the union on 5 August. How long did that meeting go?‑‑‑Wouldn't have been more than an hour.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN535
So roughly an hour?‑‑‑Yes.
PN536
I think I've seen some suggestions elsewhere, 40 minutes?‑‑‑Roughly an hour.
PN537
So it could've been as low as 40 minutes but roughly ‑ ‑ ‑?‑‑‑Roughly an hour.
PN538
Yes. So if it started now 20 minutes past 12, it would've gone till at least 1 o'clock; is that right?‑‑‑Yes.
PN539
Well, when I say an hour I'm talking about today's time?‑‑‑Yes.
PN540
Well, not today's time, the time right now; is that right?‑‑‑I've lost you there. The time right now?
PN541
I'm just saying if we ‑ ‑ ‑?‑‑‑Forty minutes is 40 minutes.
PN542
Yes?‑‑‑Okay.
PN543
Well, I'm just drawing your attention to the time for a reason that's all. I just want you to tell me what you remember being said during that meeting?‑‑‑Well, we sat down and we were going through the actual EBA itself, about all the pay rates ‑ ‑ ‑
PN544
No, I'm asking about the discussion, not what you did?‑‑‑This is the discussion.
PN545
What was actually said?‑‑‑This is the discussion. We were asking questions about the pay rates.
PN546
Do you remember what those questions were. I'm trying to do it in direct speech?‑‑‑I'm just trying to get it out. Just give me a sec.
PN547
Yes?‑‑‑There was it first started off I remember there was the pay rates and then it was about redundancies and loadings, casual loadings, inclement weather. We were pretty much sifting through the whole the first five, say, six pages where it had all the entitlements and all the wage rates and all the rest of that which were part of the EBA. We spoke about them. I mean ‑ ‑ ‑
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN548
VICE PRESIDENT HATCHER: Who was doing the speaking of the CFMEU?‑‑‑It was more Mr Vitler than Fihi was there as well but if I asked Fihi a question he'd be looking at Tony to answer it or Tony would correct him after if he got something. So, like, it was pretty much Tony Vitler more than Fihi. And it was just yes, the discussion was just about, like, the rates and, you know, the entitlements for the boys and all the rest of it.
PN549
MR CRAWSHAW: Do you remember anything else?‑‑‑Then I remember just saying, "Yep, no worries. We'll sign it." Which we had to sign pretty much to continue doing the job. Signed a few pages, signed the cheque, gave them a cheque for 800 bucks, shook their hands and went straight back to work.
PN550
So that's all you can remember of the conversation?‑‑‑Well, I can remember certain parts.
PN551
Well, I'm trying to get you to exhaust your memory?‑‑‑Okay. Well, there was one question in particular where in the EBA it stated to pay 20 per cent casual loading. And they told us, no, it needs to be 25 per cent to include redundancy. That was one question that was, I think, asked by my wife at that stage. What else did we ask of that one? About pay rates for new entry levels which they stated were like apprentice rates, that were tabled they're younger. Then we asked them, you know, who does the EBA apply to? Like, they said to their members, and I said if they're not members, who do you know, they said, well, you pretty much - they told me you pay them whatever you want to pay them. If they're not members we don't really care. And then just basically, you know, we're going to have to get some of your boys to sign up to become members. So ‑ ‑ ‑
PN552
Anything else you remember?‑‑‑From my end that's pretty much it that I can remember.
PN553
Sorry?‑‑‑I said from my end that's pretty much it.
PN554
Yes?‑‑‑It was just basically questions about the EBA. We were going through the entitlements and payments.
PN555
It's 25 past 12 now?‑‑‑Yes.
PN556
So you've given us five minutes conversation?‑‑‑Yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN557
What about the other 35?‑‑‑That's from what I can recall.
PN558
Yes. You can't remember what else happened in the other 35 minutes. The rest of the meeting?‑‑‑Well, there was it's not like each one of those points I just went through took 20 seconds. You're asking me what I recall speaking.
PN559
Yes?‑‑‑They were obviously spoken about in a lot more detail.
PN560
Yes. But you can't remember what was said, can you?‑‑‑No.
PN561
You can't remember what you signed?‑‑‑I signed the EBA.
PN562
You can't remember what else you signed, can you?‑‑‑Yes, I signed documents for the EBA.
PN563
You don't know what you signed. You told Mr Stoljar that?‑‑‑I was told I was signing documents for the EBA.
PN564
Well, why did you tell Mr Stoljar you signed other papers?‑‑‑Because there was other papers in there. It wasn't just one page. I signed several pages.
PN565
You didn't say to Mr Stoljar, "I only signed papers that were in the EBA", did you?‑‑‑Where does it say what line?
PN566
I'm taking you to the line?‑‑‑Well ‑ ‑ ‑
PN567
I'm asking you?‑‑‑How do you want me to answer that then?
PN568
What, you need the evidence in front of you, do you?‑‑‑No, but you're putting words in my mouth.
PN569
And you don't remember saying, "I signed the papers."?‑‑‑I probably did, yes.
PN570
You said it a few times today, you signed papers?‑‑‑Yes, I signed papers.
PN571
Sorry, let's just go to 1363 of the transcript. Line 34. You see Mr Agius asked you, "You placed a number of signatures on documents". And you answered, "Yes". You see that?‑‑‑Yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN572
You didn't draw this distinction between documents and papers that you've tried to draw in evidence today, did you?‑‑‑I'm not trying to draw anything. To me documents, papers, pages is all it's paperwork. I don't deal with paperwork every day. I'm outside on the tools. All right. You know, a book's a book, a magazine's a magazine, and paper's, documents, it's the same thing.
PN573
You left the paperwork to your wife to draft, didn't you?‑‑‑Yes.
PN574
The paperwork for this meeting. You left it for her to draft?‑‑‑The paperwork for the meeting?
PN575
Yes?‑‑‑I'm not sure what you mean.
PN576
She drafted a document for this meeting, didn't she? She filled in a stat dec. You've seen that document?‑‑‑Are you talking about the F17?
PN577
No, the draft of the F17. You know there's two F17 documents went into evidence?‑‑‑Yes.
PN578
One that you signed?‑‑‑Which had her handwriting on it.
PN579
Yes?‑‑‑Is that the one we're talking about?
PN580
You don't know there's two documents that went ‑ ‑ ‑?‑‑‑Yes, I know there was two documents, but ‑ ‑ ‑
PN581
Yes. And the other document ‑ ‑ ‑?‑‑‑Is yes.
PN582
‑ ‑ ‑your wife participated in the production of. Do you know that?‑‑‑Participated in the production with who? I'm not sure what you're trying to say here because I know my wife, from what I've seen of the evidence, put in she handwrote one of the ones that apparently said Draft on it, she handwrote one of the F17s by hand with the boxes and stuff like that. And then the back page as well she handwrote, and then there was the other F17 document that was fully typed up by computer and then the back page had her handwriting on it.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN583
Well, it was more than the back page, wasn't it? Didn't she fill in other parts of it?‑‑‑Not on the one that was lodged. You're talking about the draft. Do you have a copy of the draft one there? Is it somewhere here in evidence?
PN584
No. Look, I won't trouble you any longer with that?‑‑‑No. Because, no, well, it makes a difference, because ‑ ‑ ‑
PN585
Yes. No, well, I'm withdrawing the question. I'll ask your wife about it?‑‑‑Yes. Okay. Yes, yes, understand you now.
PN586
See, the situation is this, Mr Josifoski: that you can't rule out the possibility that you read the F17 that you signed in full at that meeting, can you?‑‑‑No, I never read it out never read it. Never seen it till that date this year in July.
PN587
And that after you read it, I want to suggest to you, that you can't rule out the possibility that you signed it?‑‑‑I didn't read it.
PN588
And you're only raising this issue now because the CFMEU's trying to enforce this agreement. You're only raising this issue now because the CFMEU is trying to enforce it?‑‑‑Yes. That's right.
PN589
And your evidence, in which you're categorical about the facts set out in the F17 being wrong, is coloured by the fact that you stand to benefit by overturning the validity of that agreement?‑‑‑You've got to repeat that one. I didn't understand ‑ ‑ ‑
PN590
You understand that you stand to benefit if the agreement, the 2010 agreement, is overturned in some way, or found invalid? You understand that, don't you?‑‑‑Yes, but what do you mean by benefit?
PN591
Benefit in terms of the enforcement proceedings that have been brought against you?‑‑‑Yes.
PN592
You understand that ‑ ‑ ‑?‑‑‑Yes.
PN593
‑ ‑ ‑it will be of benefit if you can attack the 2010 agreement?‑‑‑Yes.
PN594
And that's what you're doing in your evidence?‑‑‑Well, my evidence is my evidence.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN595
No?‑‑‑It's true evidence.
PN596
Well, what I'm saying is it's coloured by the fact that you stand to benefit?‑‑‑No, it's no, it's not coloured. No.
PN597
Sorry, I just have one matter. Yes, thank you.
PN598
MR WARREN: Nothing arising, your Honour.
PN599
VICE PRESIDENT HATCHER: Well, just before we go any further, I just want to ask some questions, and perhaps other Members of the Bench may. Mr Josifoski, there was discussion about a draft version of the declaration, the F17?‑‑‑Yes.
PN600
Were you aware, in July or August 2010 that your wife had worked on that document?‑‑‑No.
PN601
And when did you first become aware of that draft document?‑‑‑That draft document was when proceedings started, or when I started talking to Will.
PN602
If you just go to page number 74. This is the statutory declaration with your signature on it?‑‑‑Yes. Yes.
PN603
The box at the end of the page, you recognise as your wife's writing?‑‑‑Yes. That's correct.
PN604
Did you observe your wife's writing on any document that you looked at on 5 August 2010?‑‑‑No.
PN605
I gather you don't dispute that's your signature on the page?‑‑‑No, I don't dispute it. I don't dispute that's my signature at all. It is a copied version obviously. I mean, you know, and not an ink one, but it's definitely my signature.
PN606
See where it's dated?‑‑‑Yes.
PN607
Is that your handwriting?‑‑‑No.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN608
And do you recognise that handwriting?‑‑‑No.
PN609
Did you, at any stage, ever cause a search of your company's records to see whether there was a copy of this declaration in the company's records, do you know?‑‑‑I my wife would have searched for that.
PN610
You didn't search for it?‑‑‑No.
PN611
She didn't tell you whether she found anything or not?‑‑‑No. I don't I'm sure if she found it she would've said something to me.
PN612
If you look at the version that starts at page 66?‑‑‑Yes.
PN613
You see there's a date stamp on it?‑‑‑Page 66. Yes.
PN614
Then if you go forward to page 87?‑‑‑Yes.
PN615
You see there's another copy of the same document?‑‑‑Yes.
PN616
That version doesn't have the date stamp on it?‑‑‑No, that's right.
PN617
And it's annexed to your wife's statement. Do you have any explanation as to why that version does not have a date stamp on it?‑‑‑I've got no idea. I've never I didn't even see these until mid this year. Didn't even know the F17 existed, like, that it was you need to lodge this with the ‑ ‑ ‑
PN618
Were you asked to sign any documents on any day other than 5 August, in or about that period?‑‑‑No.
PN619
So if you signed it it could only have been at that meeting on 5 August?‑‑‑Yes. Just to let you know, Commissioner, like, besides that day there I've really never had any other meetings with the union where I've had to sign anything or do anything. The only thing that I've turned up to a few of them the union meetings that they had with all the subcontractors, that was just to discuss the new EBA that was going to come forward into place.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN620
Now, at the meeting of the 5th you made reference to signing and handing over a cheque for $800?‑‑‑Yes.
PN621
Did someone explain to you what that was for?‑‑‑That was for lodging the EBA.
PN622
Lodging with whom?‑‑‑With the union.
PN623
Well, who did you make the cheque out to?‑‑‑To the CFMEU. And I've still got the stub. We've got the stub that was obviously admitted into evidence, and I think we actually got the cheque back as well from the bank, like, a photocopy of it. And it said just to "Pay CFMEU". That was all that was on there, and then my signature, to the sum of $800.
PN624
Any questions arising out of that, Mr Crawshaw? Mr Warren?
PN625
MR WARREN: Nothing arising from my point.
VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Mr Josifoski, you're excused, and you can stay or go as you see fit?‑‑‑Thank you very much.
<THE WITNESS WITHDREW [12.39 PM]
PN627
MR WARREN: I call Ms Josifoski. Do you want to take an early lunch?
PN628
VICE PRESIDENT HATCHER: Would it be more convenient to take an earlier luncheon.
PN629
MR WARREN: I think that would be I'm in my friend's hands, but probably unlikely she would finish in 20 minutes. I might be wrong. It's up to you. Take an early lunch.
PN630
MR CRAWSHAW: Yes. I may, but I can't ‑ ‑ ‑
PN631
VICE PRESIDENT HATCHER: All right. We'll take the lunch adjournment now. We'll resume at 1.45.
PN632
MR WARREN: Thank you.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
LUNCHEON ADJOURNMENT [12.40 PM]
RESUMED [1.58 PM]
PN633
VICE PRESIDENT HATCHER: Before we start, have we got a time estimate when we might finish this case. Will be able to finish it by tomorrow?
PN634
MR WARREN: Yes, tomorrow. I would have thought that we finish the evidence today and we can do the submissions tomorrow. That was ‑ ‑ ‑
PN635
MR CRAWSHAW: Well, we'll easily finish the evidence today.
PN636
MR WARREN: All right.
PN637
MR CRAWSHAW: The question is whether we start submissions today is another thing.
PN638
VICE PRESIDENT HATCHER: All right. Well, we'll do it on the basis we have today and tomorrow, so make arrangements for that.
PN639
MR CRAWSHAW: I mean, one of our difficulties is we are the only ones cross-examining so we're not going to have a transcript of it.
PN640
VICE PRESIDENT HATCHER: No.
PN641
MR CRAWSHAW: So I'm not quite sure how we deal with that, but ‑ ‑ ‑
PN642
VICE PRESIDENT HATCHER: All right. Mr Warren?
PN643
MR WARREN: I thought you were going to make a submission.
PN644
MR CRAWSHAW: Yes. It might be convenient to deal with the tendering of the evidence, or the proposed tendering of the evidence now.
PN645
VICE PRESIDENT HATCHER: Yes. Yes.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN646
MR CRAWSHAW: Well, my friend wants to tender ‑ ‑ ‑
PN647
MR WARREN: I am tendering that which is contained within exhibit 4 and in particular, so far as discriminating or isolating particular parts of the transcript, those parts of the transcript which Mr Ward says that the appellant seeks to rely upon in these appeal proceedings, in paragraph 4(d), (f), (g) and (h).
PN648
VICE PRESIDENT HATCHER: All right.
PN649
MR CRAWSHAW: And so in terms of that, we don't have any objection on the basis that that evidence is going in, to any of that tender, other than the pages behind tab F.
PN650
VICE PRESIDENT HATCHER: Tab what, F?
PN651
MR CRAWSHAW: Tab F. And in particular at transcript page 1502, line 43, through to see where the tender ended. Through to page 1509 line 42, which is where my learned friend's tender of that transcript finishes.
PN652
VICE PRESIDENT HATCHER: 1509, line what?
PN653
MR CRAWSHAW: Forty-two. And the objection really is that first of all starting with 1502 line 43 there was a question asked by Mr Agius which was objected to and then there's a whole couple of pages dealing with that objection. And the question is withdrawn at line 1504 line 31. And then there's evidence about being forced to sign an EBA.
PN654
MR WARREN: What was that line on 1504?
PN655
MR CRAWSHAW: Line 31, "I will withdraw that question and move on".
PN656
MR WARREN: Right.
PN657
MR CRAWSHAW: And then there's questioning about being forced to sign an EBA, and membership of the union or otherwise culminating in the tender of Mr Spatolisano's application for membership. Well, I'll go this way for a moment, perhaps. And then there's once again a question about membership fees and the like going through right till the end of 1509. So ‑ ‑ ‑
PN658
VICE PRESIDENT HATCHER: So that's not relevant?
PN659
MR CRAWSHAW: Yes.
PN660
VICE PRESIDENT HATCHER: I just raise this issue: the CFMEU applied for approval of the agreement.
PN661
MR CRAWSHAW: Yes.
PN662
VICE PRESIDENT HATCHER: It only had standing to do so because if it was a bargaining agent.
PN663
MR CRAWSHAW: Yes.
PN664
VICE PRESIDENT HATCHER: It can only be a bargaining agent if one or more three persons was a member of the CFMEU. Therefore if Mr Spatolisano was a member at a certain date that might be relevant might it not?
PN665
MR CRAWSHAW: Well, there's no suggestion, in the evidence, that there weren't other members.
PN666
VICE PRESIDENT HATCHER: Well, there was a suggestion in the evidence this morning that in the discussion on 5 August the CFMEU raised an issue about people joining the union (indistinct) which an inference might be drawn that at that point they weren't members of the union. So I would have thought, at least from your client's perspective, that you'd have an interest in demonstrating that the union did have members in the form of the matters dealt with in this evidence at the time that the application was lodged in the Commission.
PN667
MR CRAWSHAW: Yes.
PN668
VICE PRESIDENT HATCHER: Otherwise the application wouldn't be valid, and you wouldn't have to, as it were, deal with anything else.
PN669
MR CRAWSHAW: Yes. Well, let me just reconsider that part.
PN670
VICE PRESIDENT HATCHER: Mr Warren, do you want to say anything about these objections?
PN671
MR WARREN: Well, I can understand the objection to the transcript that flowed through an objection and the question being the form. I understand that. I'm unclear, and I apologise to my friend, what other parts he's actually trying to cross out. I didn't take a note of it.
PN672
MR CRAWSHAW: Well, initially I said the whole lot, but ‑ ‑ ‑
PN673
MR WARREN: I'd indicated, of course, that Mr Spatolisano is going to be giving evidence.
PN674
MR CRAWSHAW: Yes.
PN675
MR WARREN: So ‑ ‑ ‑
PN676
VICE PRESIDENT HATCHER: So it seems to be primarily directed at some conversations he had with Mr Josifoski, and then an issue about his membership.
PN677
MR WARREN: Well, in his statement, that we will be tendering, he said he's joined. He signed the membership application certainly after 5 August.
PN678
VICE PRESIDENT HATCHER: This refers to what's the date there? The here refers to 28 July.
PN679
MR WARREN: I'm sorry, but where is your Honour reading from?
PN680
VICE PRESIDENT HATCHER: 1505. We don't have the primary documents, but it's 1505 lines 40 and 41. And then at 1506 lines 8 to 9.
PN681
MR WARREN: Yes. I'm just re-reading his statement. He says around August 2010. Is my friend seeking to cut that out or not, I'm just not quite sure.
PN682
MR CRAWSHAW: No. Well, I no, I'd forgotten his statement had dealt with it as well.
PN683
MR WARREN: Well, maybe I should ‑ ‑ ‑
PN684
MR CRAWSHAW: So I withdraw the objection except for the part that my learned friend has conceded, which is the objection ‑ ‑ ‑
PN685
VICE PRESIDENT HATCHER: Which was what?
PN686
MR CRAWSHAW: Which was the objections ‑ ‑ ‑
PN687
VICE PRESIDENT HATCHER: So 1502, line 43.
PN688
MR CRAWSHAW: ‑ ‑ ‑ line 43 through to 1504, line 31.
PN689
VICE PRESIDENT HATCHER: All right. So do you accept that, Mr Warren?
PN690
MR WARREN: Yes, certainly, your Honour. No problem at all.
PN691
VICE PRESIDENT HATCHER: All right. So in respect of exhibit 4 annexure F we will exclude from the tendered documents that part of the transcript of the Royal Commission which starts at page 1502 of the transcript, line 43 through to 1504, line 31.
PN692
MR CRAWSHAW: Now, there's also transcript that we seek to tender. I can do that now, only because ‑ ‑ ‑
PN693
VICE PRESIDENT HATCHER: Mr Crawshaw, we've marked the whole affidavit.
PN694
MR CRAWSHAW: Yes.
PN695
VICE PRESIDENT HATCHER: So it's in unless it's out. I'm not sure that you'd need to tender anything that is ‑ ‑ ‑
PN696
MR CRAWSHAW: Well, except no, but my learned friend is not tendering, in his evidence, the transcript other than that identified before Mr Ward.
PN697
VICE PRESIDENT HATCHER: Well, he's not relying on it then.
PN698
MR CRAWSHAW: No. Well ‑ ‑ ‑
PN699
VICE PRESIDENT HATCHER: So the affidavit has gone in. It annexes the whole of the transcript.
PN700
MR CRAWSHAW: All right. Well ‑ ‑ ‑
PN701
VICE PRESIDENT HATCHER: Let me finish. And in that affidavit it identifies certain parts of the transcript which are relied upon, but I've received the whole of the transcript, so you don't need to tender that. So it's a case of exclusion rather than inclusion.
PN702
MR CRAWSHAW: Okay. Well, other than ‑ ‑ ‑
PN703
VICE PRESIDENT HATCHER: And can I further say I can assure we're not going to have any regard to it except what the parties refer to us, so we're not going to sit and read the transcripts just for the sake of it.
PN704
MR CRAWSHAW: All right. Well, I think the best way to deal with it is to say other than the passages identified by Mr Ward, and subject to the exclusions that have already occurred, we object to it all going in other than some passages that I'm now going to identify.
PN705
VICE PRESIDENT HATCHER: Right. Well, you identify the parts of it that you don't object to, which are in addition to the ones identified by Mr Ward.
PN706
MR CRAWSHAW: Yes. Yes.
PN707
VICE PRESIDENT HATCHER: And assuming there's no objection to that, we'll treat the rest as excluded but we'll give that some greater decision at some stage.
PN708
MR CRAWSHAW: Yes. First of all I think I've dealt with Mr Josifoski when he was giving evidence. The transcript behind tab E, transcript 1356, line 30.
PN709
VICE PRESIDENT HATCHER: So just slow down. So tab E?
PN710
MR CRAWSHAW: Tab E.
PN711
VICE PRESIDENT HATCHER: Yes.
PN712
MR CRAWSHAW: Transcript 1356, line 30 to 1368, line 43.
PN713
VICE PRESIDENT HATCHER: 1368?
PN714
MR CRAWSHAW: Yes.
PN715
VICE PRESIDENT HATCHER: Line?
PN716
MR CRAWSHAW: Forty-three.
PN717
VICE PRESIDENT HATCHER: Forty-three. Yes.
PN718
MR WARREN: Is that out?
PN719
MR CRAWSHAW: No, that's in.
PN720
VICE PRESIDENT HATCHER: Mr Warren, I'll say it one more time. Mr Ward has identified his affidavit, the parts that he relies upon.
PN721
MR WARREN: Yes.
PN722
VICE PRESIDENT HATCHER: That would be in. Mr Crawshaw is going to identify other parts that his client wishes to rely upon. That will be, unless you object, in. Everything else will be out.
PN723
MR WARREN: Thank you. I'm sorry, I was following on your Honour's earlier indication.
PN724
VICE PRESIDENT HATCHER: Well, I thought it was the same, but anyway.
PN725
MR CRAWSHAW: And behind the same tab.
PN726
VICE PRESIDENT HATCHER: Tab E?
PN727
MR CRAWSHAW: Yes. And the same day, the transcript of Rosa Josifoski from page 1398, line 10 to 1405, line 21. Behind tab F.
PN728
MR WARREN: Sorry, 14?
PN729
MR CRAWSHAW: 1405, line 21, behind tab F the transcript of 30 July 2015. The evidence of Ms Roach from line 1498, line 34 I think Mr Ward actually said 1498, but just to be certain we rely on line 1498, line 34 through to 1499, line 19; page 1499 not being included within Mr Ward's affidavit. Then we go to tab G, on 1 September, Mr Pitt gives evidence, at page 1715, line 28 through 1717, line 10 and then behind tab H, on 2 September the evidence again of Mr Vitler. Page 1757, line 35, line 40 of the same page. That's it.
PN730
VICE PRESIDENT HATCHER: I note that Mr Crawshaw, but can you at some stage send us a note confirming that, so there's no misunderstanding.
PN731
MR WARREN: Can I just clarify, where Mr Ward says in his affidavit in paragraph (e), the appellant seeks to rely upon in these appeal proceedings, he also refers in paragraph (f), he refers to Ms Roach's in the last sentence "Evidence applicable to these appeal proceedings". We see as applicable as being including that in the evidence. Although he hasn't said "rely upon" in case someone at some stage says you are limiting your tender to rely upon. If Mr Ward also used the word "applicable" then those parts of the transcript we also would be relying upon or referring the Commission to. I just wanted to make that clear.
PN732
COMMISSIONER McKENNA: All right. And how do we discern what those matters are?
PN733
MR WARREN: It sets out the pages and lines in the transcript and in submissions I'll be taking the Commission to those that we then rely upon. We want to have those excluded from the evidence. If someone later said we didn't say it before this Commission we didn't rely upon.
I call Rosa Josifoski.
<ROSA JOSIFOSKI, SWORN [2.19 PM]
EXAMINATION-IN-CHIEF BY MR WARREN [2.19 PM]
PN735
MR WARREN: Ms Josifoski, his Honour's associate will hand you a document, thank you. His Honour's associate is handing the witness a document which is the whole of tab C, which is already included, as it were, in exhibit 4, as being tab C, exhibit 4. Do you wish her - how do you want to deal with that.
PN736
VICE PRESIDENT HATCHER: You might get the witness to get to attest to the truth of that.
PN737
MR WARREN: I'll be doing that, but I won't then tender it, or - - -.
*** ROSA JOSIFOSKI XN MR WARREN
PN738
VICE PRESIDENT HATCHER: I think we will, I did it with the other witness, so.
PN739
MR WARREN: You have with you in the witness box don't you, Ms Josifoski, a statement which is of three pages. There's a signature on the third page dated 28 July 2015. Is that your signature?‑‑‑Correct.
PN740
It's a statement of some 17 paragraph?‑‑‑Correct.
PN741
And two, RJ1 and RJ2 annexures?‑‑‑Yes.
PN742
Is it your evidence that your statement, to the best of your knowledge and belief is true and correct?‑‑‑Yes.
PN743
I tender this.
VICE PRESIDENT HATCHER: The witness statement of Rosa Josifoski, prepared for the purposes of the Royal Commission into Trade Union Governance and Corruption, dated 28 July 2015 will be marked exhibit 5 in these proceedings.
EXHIBIT #5 WITNESS STATEMENT OF ROSA JOSIFOSKI DATED 28/07/2015
MR WARREN: Thank you, your Honour, that's the evidence of Ms Josifoski.
CROSS-EXAMINATION BY MR CRAWSHAW [2.21 PM]
PN746
MR CRAWSHAW: Your statement that we've just been referred to, it says you're a director of MPR Scaffolding?‑‑‑Correct.
PN747
That's currently the position?‑‑‑Yes.
PN748
How long have you been a director?‑‑‑I think I've been a director since the financial year 2011, so essentially, not a managing director, a director of the company when we started it.
PN749
When you started the company, you've been a director from the beginning have you?‑‑‑No, I think it was the following financial year that maybe I became a director of it, but I'd have to ask our accountant.
*** ROSA JOSIFOSKI XXN MR CRAWSHAW
PN750
Could it be that you were a director from the beginning?‑‑‑No, I don't think so because Petar organised setting up a company.
PN751
Yes, but that doesn't exclude you being a director, does it?‑‑‑No, I'm a director of MPR Scaffolding I would say from the financial year 2011 till now, but I'd have to ask my accountant when I had been made a director of the company.
PN752
What I'm suggesting is you could have been a director before 2011?‑‑‑Possibly, yes.
PN753
If I could just have one moment.
PN754
VICE PRESIDENT HATCHER: So the financial year 2011 began on 1 July 2010?‑‑‑No, I think it was possibly the July after, or could have even been before. I'm not quite sure. Our accountant registered the company, Petar did all that, but it would be something pretty simple to find out.
PN755
MR CRAWSHAW: You say in your statement that you saw Petar sign the collective agreement, but do you also recall him signing a statutory declaration?‑‑‑No, I don't.
PN756
But he may have signed a statutory declaration?‑‑‑Yes.
PN757
I don't know whether you were sitting there, but you probably heard - were you sitting there when we were dealing with the transcript before?‑‑‑Yes.
PN758
The transcript or, I think all of your transcript before the Royal Commission has now gone into evidence in these proceedings?‑‑‑Okay.
PN759
You don't have a copy of that with you?‑‑‑No, I don't.
PN760
If you just go to tab E, you'll see the transcript of the day that you gave evidence and if you go down the bottom, you'll see that transcript commenced at page 1386?‑‑‑Correct, yes.
*** ROSA JOSIFOSKI XXN MR CRAWSHAW
PN761
I think you were asked evidence about the document that was entitled draft, which contained a statutory declaration. It wasn't the final statutory declaration that carried your husband's signature. Do you remember that?‑‑‑Yes, I saw both versions, if that's what you are asking.
PN762
You saw both versions?‑‑‑Well, when I made my statement, yes.
PN763
Do you remember seeing both of them at the time back in 2010?‑‑‑No.
PN764
You only remember seeing the draft version?‑‑‑The one I completed by hand, yes.
PN765
You were asked various questions about that?‑‑‑Yes.
PN766
In particular at page 1390 you were asked some questions about it?‑‑‑Yes.
PN767
Do you have that document, it's attached to your statement?‑‑‑The hand written form, yes.
PN768
Yes?‑‑‑RJ1, yes. I've got that.
PN769
If you can just have a look at that, because the questions you were asked about it at 1390, relate to that. You were asked at 1390 line 4, in 2.2 you have left all those dates blank. Is that because those things haven't occurred at that time and you answer "Those things haven't occurred, but I don't know if I left it blank because of that, or I didn't understand." Can I just suggest to you this, that those things could have occurred without your knowledge?‑‑‑I disagree with that.
PN770
Sorry?‑‑‑I would disagree with that.
PN771
On what basis?‑‑‑On the basis of we had just started business, knowing the amount of interactions Petar had with the union. I would disagree with that. I stand by this response. I did understand.
PN772
The basis for that response is what? That you just started business?‑‑‑I know that myself or Petar did not organise any meetings or any of this, because we didn't know about it. We didn't know it was required.
PN773
Please, I just ask you to give evidence on behalf of yourself?‑‑‑Yes.
*** ROSA JOSIFOSKI XXN MR CRAWSHAW
PN774
Your husband's already given evidence about what he knew or didn't know or whatever. From your direct experience, those things could have occurred without you knowing them?‑‑‑Possibly.
PN775
VICE PRESIDENT HATCHER: I can understand that proposition with respect to 2.2(b) or (c) but how might that have happened in respect to (a)?
PN776
MR CRAWSHAW: Maybe it's a matter that remained in submissions?
PN777
VICE PRESIDENT HATCHER: You've put it to the witness that these things could have happened without this witness knowing about it. With respect to (a) there's not suggestion of Mr Josifoski that he'd done (a), so I'm just trying to think what is the hypothetical scenario that you're actually putting in respect to (a) that who else might have done it? You haven't put it to Mr Josifoski that he did it. This witness says she didn't do it. You're suggesting it might have happened some other way without her knowing.
PN778
MR CRAWSHAW: No, I'm talking about the event, rather than doing it.
PN779
VICE PRESIDENT HATCHER: The event.
PN780
MR CRAWSHAW: The event, namely something occurring on a date.
PN781
VICE PRESIDENT HATCHER: Yes, I'm talking about the notice of representation of rights occurring on a date.
PN782
MR CRAWSHAW: Yes, well that could have occurred without this witness knowing about it.
PN783
VICE PRESIDENT HATCHER: Well, that's the question I'm asking you, how? Who else might have done it?
PN784
MR CRAWSHAW: I can't answer that question. Do you understand that?‑‑‑Yes.
PN785
Perhaps I should be specific, going back to what I asked you. A vote could have occurred without you knowing about it?‑‑‑In a hypothetical scenario, possibly.
*** ROSA JOSIFOSKI XXN MR CRAWSHAW
PN786
I'm not putting a hypothetical, I'm just saying it could have occurred?‑‑‑Possibly. I mean I don't know how else to answer that.
PN787
In relation to (a) the notice of representational rights, that's something that you now know what it is?‑‑‑Correct.
PN788
And what is that?‑‑‑I understand that you need to give your employees a notification of their rights to have a bargaining representative in relation to discussing a contract or an agreement for the workplace. It's an important part of the process of consultation.
PN789
Are you suggesting that that didn't occur?‑‑‑Yes.
PN790
How can you be sure that that didn't occur?‑‑‑I did not know about this. I did not circulate that to our employees and I'm not aware that Petar did either, or that he even knew what it meant. So no.
PN791
From your perspective, the only other person who could have done it was Petar?‑‑‑Correct.
PN792
Do you remember those parts being filled in at the meeting?‑‑‑No.
PN793
Do you remember that those parts - or seeing a document with those parts filled in?‑‑‑No.
PN794
But you don't recall exactly what happened at the meeting, do you?‑‑‑Which meeting, pardon?
PN795
The meeting on 5 August?‑‑‑I remember what was important to me at the time.
PN796
What was that?‑‑‑Discussions about how this EBA worked, how did I apply it and doing payroll. So I had a lot of questions.
PN797
Did you do most of the talking from a company point of view?‑‑‑Well I had notes, yes probably, in the detail of asking how I should set up payroll systems.
PN798
When you say you had notes, you didn't keep them, did you?‑‑‑No, I didn't. They were - I would say hand written notes.
*** ROSA JOSIFOSKI XXN MR CRAWSHAW
PN799
You didn't make notes of the meeting?‑‑‑I did possibly, I made them on a draft EBA that I had. I'm assuming Petar gave it me. It must have been a copy that they gave him. I did have something with notes on it, like my scribbles and I also had a copy of the general onsite award. It's a book that the union gives with the general modernised award.
PN800
VICE PRESIDENT HATCHER: Can I just ask you some questions first Ms Josifoski? The draft declaration, when did you - the parts that you filled in, when did you do that?‑‑‑It would be before the meeting on 5 August. I can't say a date. I don't know.
PN801
How did you come about to do that?‑‑‑I can't recall how I got the document. I don't know if it was mailed to me. I don't know if it was given to Petar. I honestly don't know. But I got it and completed it, I just can't remember how I got it.
PN802
If we just go to 2.2 of the draft. You'll see 2.1?‑‑‑Yes.
PN803
This is a question about the nature of representational right. There appears to be a typed-in "X" next to "Yes". Did you do that?‑‑‑No.
PN804
Do you have any knowledge as how that cross might have come to be there?‑‑‑I'm assuming it was on the form when I got it.
PN805
I see?‑‑‑It was part of the text on the page.
PN806
What did you do with this after you completed it?‑‑‑It was given back to the union, so I don't know if I gave it to them, or - no I didn't post it them. The time frame - it was highly likely I took it to the meeting, but I can't remember. But they got it back. Yes, they had it in their files, so I gave it back to them.
PN807
When you say they had it in their files, what do you mean by that?‑‑‑My hand written original form was shown to me. I think it was a Monday/Tuesday before I took the stand at the Royal Commission to verify - is that your handwriting? I said yes it is.
PN808
Your understanding was the Royal Commission had obtained it from the CFMEU's files?‑‑‑Yes.
*** ROSA JOSIFOSKI XXN MR CRAWSHAW
PN809
Then there's RJ2 is the final version?‑‑‑Yes.
PN810
The copy that's attached to your statement, where did that come from?‑‑‑That came from information from the Fair Work Commission. So there was a request made, I don't know if it was William or Trade Union Commission lawyers requested our EBA and information to that effect.
PN811
There's another version of the material which was the Commission's date stamp on it?‑‑‑Okay.
PN812
But this one doesn't. I'm just trying to confirm whether it came from a different source?‑‑‑I'm not sure. I'm not sure.
PN813
Have you checked whether there was a copy of it in the company's files?‑‑‑Of this?
PN814
Yes?‑‑‑I looked everywhere. I have a letter, I think it was dated towards the end of August that said we've lodged your agreement, please find enclosed copies. But I can't find what was attached to it. There was an email that I sent to - I don't know if I'm saying his name right - Mr Cavalli(?), acknowledging that I'd received that, but as to what was exactly attached, I don't know. I know I said EBA because I was asking for an electronic version and I only had a hard copy. I mentioned application but I can't say exactly what the documentation was. We moved, but I found the letter, so I received something end of August, got from the CFMEU.
PN815
On the last page of the second version?‑‑‑Yes.
PN816
That's your handwriting in the box at the top of the page?‑‑‑Correct.
PN817
Do you have any recollection of how your handwriting came to be in there?‑‑‑My recollection would be it was consistent with the way I had completed RJ1. That was all in blue ink, all my handwriting.
PN818
RJ1 have that filled in here by hand, it's typed in?‑‑‑Correct.
PN819
So how did it come to be ink written in RJ2?‑‑‑Well you might have to ask the CFMEU that.
*** ROSA JOSIFOSKI XXN MR CRAWSHAW
PN820
Well, with respect, it's your handwriting?‑‑‑I don't know.
PN821
You must have written there at some stage or at some time, but you can't explain how it got to be there?‑‑‑The only way I could explain it is I filled that in when I filled out the form that I had completed as well, the rest of the document part. That's all I can assume.
PN822
I don't know how you can assume that since on the version you've supplied of the draft, there's a typed bit in there?‑‑‑That page of what has been submitted with our EBA, correct? Is consistent with the copy you have on file. I don't know, that's my handwriting. I'm not sure how else to - - -
PN823
It's handwriting on a page which has your husband's signature stating that this is a statutory declaration?‑‑‑Yes, that's his signature.
PN824
You read the draft document when you filled it in?‑‑‑Yes, to the best of my ability, yes.
PN825
So you would have understood that what you were filling in was a draft of a statutory declaration?‑‑‑I don't recall the word "draft" being at the top.
PN826
Maybe you didn't see the word "draft" but the document that you were filling in, you understood that you were filling in a statutory declaration?‑‑‑Yes, and it said application for approval of enterprise agreement. I understood it was to support our collective agreement of the process.
PN827
I'm just putting it at a slightly higher level, if you go to page numbered 86 in the top right hand corner. See after 4.4 of the three lines there beginning with "I understand"?‑‑‑Yes.
PN828
So you understood that the contents of this document were important, that is it was a criminal statement to make an intentional false statement in this document?‑‑‑Yes. I filled it out to the best of my ability.
PN829
You have no recollection of how your husband came to sign the other version?‑‑‑No, I don't.
PN830
Did you ever see him sign it?‑‑‑I can't remember seeing him sign it. But that's his signature.
*** ROSA JOSIFOSKI XXN MR CRAWSHAW
PN831
He never signed the draft version that you prepared?‑‑‑I don't know. I honestly can't remember seeing him sign it.
PN832
Did you talk to him about it?‑‑‑I don't think so.
PN833
You've said that you've agreed that you understood the importance of the truth of what was being said in this. If we go to the draft version?‑‑‑Yes.
PN834
Go to 2.7. You filled in some numbers there, the number 3?‑‑‑Yes.
PN835
So you filled that in, that's the number of employees who cast a valid vote and who voted to approve the agreement?‑‑‑Yes.
PN836
Why did you fill that out if you knew that those things had not happened?‑‑‑Sincerely I don't think I understood it. To me that represented three full-time workers, and I filled this out with as much information about the company and our employees that I understood.
PN837
With respect, it's reasonably clear. It says "Please provide the following details of the vote on the agreement." There is nothing you would not have understood as a matter of plain English there, is there?‑‑‑Possibly I'm assuming that's to happen. That's all I can assume, what I was thinking at the time.
PN838
Is it possible that the union told you there had been a vote?‑‑‑No. No, not - they had not spoken to me about that at all.
PN839
COMMISSIONER McKENNA: Just in reference to what you have just said there about - you thought it was permanent employees?‑‑‑Yes.
PN840
Could I take you please to question 4.1 of the (indistinct) which is in your own handwriting?‑‑‑Yes.
*** ROSA JOSIFOSKI XXN MR CRAWSHAW
PN841
You have indicated in relation to statistical information that there was one part-time employee and two casual employees?‑‑‑Yes. My naivety is embarrassing. Roughly probably we had about six workers who were probably six weeks into the business and I've counted Petar in that. So I've never done an EBA or lodged an EBA, so I've - my understanding of what I - how I read this was three full-time workers, part-time and two casuals, but I obviously, you know, in hindsight understand that I've not completed this correctly, because we had about - that would - Pete would make six employees at that time.
PN842
VICE PRESIDENT HATCHER: You had six employees?‑‑‑Yes, including Petar, you know.
PN843
SENIOR DEPUTY PRESIDENT HAMBERGER: But leaving aside that, why did you then say there were going to be only three employees covered by the agreement?‑‑‑I thought it was full-timers. Like I didn't - I - - -
PN844
(Indistinct) in one place you've said there's two casuals and a part-timer and then - - -?‑‑‑Yes, I'm not consistent, yes. I'm not sure. I honestly don't think I've understood it.
PN845
VICE PRESIDENT HATCHER: In 2.20 you filled in the nominal expiry date?‑‑‑Yes.
PN846
That's a fairly technical term?‑‑‑Yes.
PN847
But you seem to have given the right answer. How did you fill that in?‑‑‑I'm pretty sure there was a draft copy of a collective agreement, and I think it possibly could have been - Rovera Scaffolding is a competitor, another scaffolding company, an example of what (indistinct) construction industry was signing, and it was 2010 to 2012 and that was the nominal expiry date. So I tried to find the information I knew but yes, I had - there was an example EBA Petar had.
PN848
Anything arising out of that, Mr Crawshaw?
PN849
MR CRAWSHAW: No, your Honour.
PN850
VICE PRESIDENT HATCHER: Any re-examination, Mr Warren?
MR WARREN: Yes, your Honour.
RE-EXAMINATION BY MR WARREN [2.49 PM]
PN852
MR WARREN: Just taking you to the draft which is RJ1, I note in 1.7 there's a mention of a list of previous agreements. Is that the Rovera - - -?‑‑‑Rovera Scaffolding.
*** ROSA JOSIFOSKI RXN MR WARREN
PN853
Is that the one you were referring to just before?‑‑‑Yes, yes.
PN854
There are also - I think his Honour the Vice President took you to part of that agreement where there was a cross in 2.1. There is a cross, it appears to be typed in the box adjacent to "Yes"?‑‑‑Yes.
PN855
Your evidence is - who did that?‑‑‑It wasn't me. It was on the copy I - I filled in.
PN856
Indeed there are a number of crosses in boxes in that draft. Did you put any of those crosses in?‑‑‑No.
PN857
That is the way it was when - - -?‑‑‑Yes, they're typed.
PN858
When you received it?‑‑‑Yes.
PN859
The Commission has also taken you to 4.1 of the draft. That's your handwriting in 4.1?‑‑‑Yes.
PN860
Do you see any place there in that group where you could put full-time?‑‑‑No.
PN861
So you've got full-time indicated in 2.7, have you?‑‑‑Correct.
PN862
When you filled out the handwriting in RJ1, the handwriting wherever we see it is your handwriting, is it?‑‑‑Correct.
PN863
I will take you through to the last page of RJ2. There's your handwriting there?‑‑‑Yes.
PN864
Could you have put that handwriting on the last page of the draft?‑‑‑That's what my assumption is, yes.
PN865
What do you mean?‑‑‑Those two back sheets, so the last page of RJ1 and the last page of RJ2, it's like they've been crossed over, and I said that in the Commission.
*** ROSA JOSIFOSKI RXN MR WARREN
PN866
VICE PRESIDENT HATCHER: Do you mean they've been attached to the wrong documents?‑‑‑Yes, they've been - so I filled out the draft, I filled that out all in handwriting, even the back page. A final version has been typed up. CFMEU lodged it. The last page, they've put on - of the draft that I completed that Petar obviously signed. That - that was the most logical assumption I could make from what I saw.
PN867
So does it follow from that that it's possible that Mr Josifoski signed your draft version and it was then sent in to you before 5 August?‑‑‑Possible. I don't know. Possible. Possible. I can't remember him signing it. Possibly in the meeting. It wasn't what I remember from the meeting but I don't remember everything, you know. I can't say definitely no.
PN868
Do you know anything about this person who witnessed the document (indistinct)?‑‑‑Ms Roach.
PN869
Roach, sorry, yes?‑‑‑Yes, well, I was at the Royal Commission when she took the stand. I know she was an employee of the Commonwealth Bank.
PN870
Have you ever been to that bank branch?‑‑‑Yes, I live in Canberra. Very rarely. It's in Dickson. We normally bank at Fyshwick or Belconnen.
PN871
Is that near the CFMEU office?‑‑‑Correct. They're in Dickson.
PN872
Sorry, Mr Warren, you go on.
PN873
MR WARREN: Yes, just on that point, was Ms Roach present at the union office on 5 August?‑‑‑No.
PN874
When you were present?‑‑‑No.
PN875
VICE PRESIDENT HATCHER: Sorry, Mr Warren. There's no possibility that you prepared the draft, had your husband sign it and got it witnessed the bank branch?‑‑‑No. I - no. I strongly say no. I never went to the bank with him. I don't know if he went to the bank. No. I honestly don't have any knowledge of how it's witnessed.
PN876
MR WARREN: Thank you. That's all.
PN877
VICE PRESIDENT HATCHER: Do you want to follow up any of that, Mr Crawshaw?
*** ROSA JOSIFOSKI RXN MR WARREN
PN878
MR CRAWSHAW: No, thanks, your Honour.
VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Ms Josifoski. You are excused?‑‑‑Thank you very much.
<THE WITNESS WITHDREW [2.54 PM]
PN880
MR WARREN: Your Honour, just on your Honour's last question, whether there's any possibility that Mr Josifoski went to the branch, one assumes on 5 August, I don't recall that being put to him.
PN881
VICE PRESIDENT HATCHER: Well, not even necessarily the 5th, that is if - if Mrs Josifoski prepared the document as a draft and had it signed by Mr Josifoski and then sent it to the union before the 5th, it was possible theoretically that it was signed and witnessed before the 5th. You're right in saying that was not put to him. I don't know if Mr Crawshaw wants to try that but that seems to be a possibility based on that evidence.
PN882
MR WARREN: In his evidence he did say that he didn't go to the bank that day. I think he said he left the meeting, got in the car and went to work. I was just concerned that your Honour might have a different impression, in which I would recall Mr Josifoski.
PN883
VICE PRESIDENT HATCHER: That evidence raises the possibility that he signed it not at the meeting, that he signed the draft document that his wife prepared, perhaps had it witnessed, and then it was sent to the union and transposed as a last page on the version the union then prepared from the draft they were given.
PN884
MR WARREN: And all I can say is that hasn't been put to him.
PN885
MR CRAWSHAW: Can I just say, I don't know why we're making submissions about this now, but maybe I've been appearing at the - I haven't appeared at the Royal Commission that much but one thing that happens at the Royal Commission is they say you don't have to Browne v Dunn everyone, but I also understand you don't have to Browne v Dunn everyone in proceedings in this Commission. Plenty of decisions say that. All the more so when we're talking about events of five years ago when people give evidence of which they've got imperfect memory and we're talking about possibilities. Is my learned friend suggesting I have to put every possibility that could have occurred with these documents?
*** ROSA JOSIFOSKI RXN MR WARREN
PN886
VICE PRESIDENT HATCHER: I don't think we intend to be technical about it, and I think it's right to say that the appellant bears the onus of proof of the matters that need to be established.
PN887
MR CRAWSHAW: I should also say that I've been at pains, apart from perhaps on one occasion with Mr Josifoski, and only because of (indistinct) documents (indistinct) kept going on about, not to rehash what Mr Agius had already cross-examined which was going into evidence anyway. That applies equally to Ms Josifoski who was cross-examined about these matters by Mr Agius.
PN888
VICE PRESIDENT HATCHER: I don't see it as a Browne v Dunn issue. It's just a question of whether either party wants to explore that possibility with him. If the answer is no we'll move on. If you want to explore it with him, Mr Warren, I'll allow you to recall him.
PN889
MR WARREN: I will.
VICE PRESIDENT HATCHER: All right. Mr Josifoski, come forward.
<PETAR JOSIFOSKI, RECALLED AND RESWORN [2.58 PM]
EXAMINATION-IN-CHIEF BY MR WARREN [2.58 PM]
PN891
MR WARREN: Mr Josifoski, you have in front of you a document which is your wife Rosa's witness statement?‑‑‑Yes.
PN892
On the last page of that document - - -?‑‑‑Yes.
PN893
- - - is your signature?‑‑‑Correct.
PN894
Were the words that appear at the bottom of that page in the block, which is "Do you identify your wife's handwriting", were those words on that when you signed it?
PN895
MR CRAWSHAW: I object. The witness says he can't even remember signing the document.
PN896
VICE PRESIDENT HATCHER: I don't think you have established that he has any recollection of that, Mr Warren.
*** PETAR JOSIFOSKI XN MR WARREN
PN897
MR WARREN: Mr Josifoski, did your wife give you a copy or give you - attached to that document you have there is on page - top right-hand corner, 78, a document headed "Draft"?‑‑‑Yes.
PN898
Did your wife give you that document at any stage prior to 5 August?‑‑‑No.
PN899
Did your wife give you that document at any stage?‑‑‑No.
PN900
Thank you.
VICE PRESIDENT HATCHER: Do you want to ask him anything, Mr Crawshaw?
CROSS-EXAMINATION BY MR CRAWSHAW [2.59 PM]
PN902
No, but you've got an imperfect memory of these events, haven't you?‑‑‑Of the day of the 8th, yes.
PN903
No, that wasn't the question. The question was whether that document's ever been given to you by your wife?‑‑‑No, it hasn't.
PN904
But you don't know, do you?‑‑‑Well, if I don't remember it, then there's most chance that it hasn't been given to me.
PN905
But there's also the chance that it has, if you don't remember, isn't it?‑‑‑No.
PN906
Sorry?‑‑‑No.
PN907
You don't recall whether you were given it or not?‑‑‑Yes, I don't recall.
PN908
No, well that means, doesn't it, that you may have been given it, but you just don't remember?‑‑‑Very slightly, but yes, okay, if you want to put it that way. Usually if you don't remember something, maybe it hasn't happened, which is more of a possibility I suppose.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN909
Well, if you don't remember whether something happened or not, it means it could have happened, or it might not have happened. Right?‑‑‑I mean, it depends on what it is I suppose.
PN910
Were you here when your wife gave evidence?‑‑‑I got the last couple of minutes.
PN911
Did you hear the bit about how you bank sometimes at the Commonwealth Bank at Dixon?‑‑‑Yes, not bank as in doing any of my business banking there, but I might go and pull some money out or something like that, yes.
PN912
It's possible, isn't it, that you went to that bank with the statutory declaration and had it witnessed by a bank officer?‑‑‑I told you after the meeting with the Union, I walked out and went straight back to work. That meeting took place about 9 o'clock in the morning, so I don't think the bank opens until 10 o'clock, so no, I could say I definitely didn't go to the bank that day prior to the meeting because the meeting was at nine in the morning.
PN913
You can't be sure of that, can you?‑‑‑Yes I can. I did not go to the bank that day. The bank was closed while the meeting was on. After the meeting I shook hands with the union officials, walked out the front with my wife, said bye to my wife and went straight back to Franklin to the job.
PN914
What time was that?‑‑‑Ten-ish.
PN915
Ten?‑‑‑Roughly an hour after the meeting started.
PN916
Wasn't the bank open at ten?‑‑‑I went straight back to work after the meeting.
PN917
But the bank opening time is not an issue, is it?‑‑‑10 o'clock, we thought it was after ten, the bank would have been open.
PN918
VICE PRESIDENT HATCHER: Mr Josifoski, you're concentrating on 5 August. Your wife has suggested that a page on the second version which has her handwriting and her signature?‑‑‑Yes.
PN919
May in fact be the last page on the draft version that she prepared?‑‑‑Right.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN920
Which raises the possibility that you signed it not on 5 August, but you signed the draft that your wife prepared before it was given to the CFMEU, that is before the 5th?‑‑‑No, I'm never been given this document to sign or view over. I didn't even see this document until July this year.
PN921
How did your signature get to be on it?‑‑‑I signed it at the meeting, could have been a blank page at the meeting.
PN922
A blank page?‑‑‑Not a blank page, but they could have had that page there, in with the documents that I needed to sign.
PN923
You would have at least seen the page that you put your signature on it?‑‑‑Yes, I probably would have seen the page, but I signed a few pages that day.
PN924
Yes, but the page that had your signature on it, you must have seen that page at some time?‑‑‑Yes I would have seen it.
PN925
You would have seen it immediately above the place where you signed it, a statement that you understood that you were intentionally made a full statement that you were guilty of an offence?‑‑‑Well I'm not saying that I've read it. I would have seen the page, I'm not saying that I would have read the page.
PN926
Alright, thank you.
PN927
MR CRAWSHAW: Can I just ask one question?
PN928
VICE PRESIDENT HATCHER: Yes.
PN929
MR CRAWSHAW: You don't know whether you understood it or not, do you?‑‑‑No, I thought I was being guided by the union officials to do the right thing, sign the paperwork to get the EBA through.
PN930
But you may have read that sentence that said you understood what you were saying?‑‑‑No, no.
PN931
Are you ruling that out now?‑‑‑What I'm saying is that if I read the sentence, I'd tell you I read the sentence.
PN932
But you can't remember if you read it or not?‑‑‑I can't recall reading it.
*** PETAR JOSIFOSKI XXN MR CRAWSHAW
PN933
Any more than you can remember whether you signed it or not?‑‑‑No.
PN934
Thank you.
VICE PRESIDENT HATCHER: Alright, thank you for your evidence Mr Josifoski, you're excused.
<THE WITNESS WITHDREW [3.04 PM]
PN936
VICE PRESIDENT HATCHER: Yes Mr Warren.
MR WARREN: I call Mr Spatolisano. For the record, spelt S-p-a-t-o-l-i-s-a-n-o. The statement is at D.
<VINCENT SPATOLISANO, SWORN [3.05 PM]
EXAMINATION-IN-CHIEF BY MR WARREN [3.05 PM]
PN938
MR WARREN: Mr Spatolisano, his Honour's associate is about to give you a document. Mr Spatolisano is that a witness statement of yours of some three page, 17 paragraphs. On the third page it's dated 28 July 2015. Is that your signature appearing below that date?‑‑‑Yes it is.
PN939
Is it your evidence to this Commission, that to the best of your knowledge and belief, that statement is true and correct?‑‑‑It's true, yes.
PN940
I tender it.
VICE PRESIDENT HATCHER: Yes, the statement of Vincent Spatolisano dated 28 July 2015 prepared for the purposes of the Royal Commission on trade union governance and corruption is exhibit 6.
EXHIBIT #6 WITNESS STATEMENT OF VINCENT SPATOLISANO DATED 28/07/2015
VICE PRESIDENT HATCHER: Mr Crawshaw.
CROSS-EXAMINATION BY MR CRAWSHAW [3.07 PM]
*** VINCENT SPATOLISANO XN MR WARREN
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN943
MR CRAWSHAW: Mr Spatolisano, do you remember now whether in 2010 you were employed as a casual?‑‑‑Is the question was I a casual?
PN944
In 2010?‑‑‑No, I wasn't a casual.
PN945
What were you?‑‑‑A full time worker.
PN946
You weren't part time?‑‑‑No.
PN947
VICE PRESIDENT HATCHER: In paragraph 2 you say you were a casual?‑‑‑That worked full time hours. So I worked full time but as a casual employee.
PN948
MR CRAWSHAW: So you were a casual?‑‑‑I was working mostly full time hours.
PN949
But you were a casual?‑‑‑Look, as far as I'm aware, yes.
PN950
Did someone fill that in for you, did they?‑‑‑No.
PN951
So why do you call yourself a casual in your statement?‑‑‑I think it comes from all to do with the - I think I was working more hours than I expected to get, so I would consider myself a full time, but classified as a casual.
PN952
Who did you make this statement to?‑‑‑I made this statement when I went to the Royal Commission.
PN953
You spoke to people at the Royal Commission?‑‑‑I was there at the Royal Commission, is that the question?
PN954
I'm talking about your written statement. I know you went and gave oral evidence, didn't you?‑‑‑Yes, I did.
PN955
Before that, before you gave oral evidence, you prepared this statement?‑‑‑Yes.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN956
The day before, no, it wasn't the day before, was it? Two days before. You may not remember, but it was shortly before you gave your oral evidence, you made this written statement?‑‑‑Yes.
PN957
How did that work in terms of preparing the statement? Did you go in and speak to them?‑‑‑Sorry, can you explain the question.
PN958
When you were preparing your statement, did you go in and speak to someone at the Royal Commission, did you?‑‑‑I spoke to the Royal Commission, yes.
PN959
Who did you speak to?‑‑‑To be honest, I can't remember now.
PN960
One person?‑‑‑No.
PN961
How many?‑‑‑More than one person.
PN962
How many?‑‑‑I couldn't tell you exactly, no.
PN963
Anyway, and how long were you with them?‑‑‑I couldn't say. I mean, I can't remember.
PN964
Did you have more than one session with them?‑‑‑I can't remember to be honest, no.
PN965
Wasn't it a fairly significant event in your life to attend a Royal Commission?‑‑‑No.
PN966
Happens every day, does it?‑‑‑Is the question does attending a Royal Commission happen every day?
PN967
Yes?‑‑‑No, it doesn't happen every day.
PN968
Has it happened to you before?‑‑‑No.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN969
But you've got a bad memory of it. When I say a bad memory, I'm not saying distressed or anything, but you don't really remember what happened in the time leading up to you giving the oral evidence?‑‑‑I'm not sure I understand that question.
PN970
It's probably a bit broad. In terms of preparing your statement, you haven't got a very good memory of what happened?‑‑‑I wrote down my statement, I submitted my statement and that was that.
PN971
So you wrote it down for them? When you saw these people at the Royal Commission, you presented a hand written statement or a typed statement?‑‑‑I drew up my own statement, yes.
PN972
Was it hand written or type written?‑‑‑I can't remember now to be honest, but I had my own statement.
PN973
Was it the same as this one?‑‑‑Yes.
PN974
This statement, or the words in it, weren't produced with the assistance of the Royal Commission at all, is that what you are saying?‑‑‑Sorry, can you say that again.
PN975
It's a two page statement, or a bit more. Two pages and one paragraph. All I'm trying to get to Mr Spatolisano, is how it was compiled?‑‑‑I thought you told me you went to the Royal Commission?‑‑‑I attended the Royal Commission.
PN976
But you had something to take to them in advance, did you?‑‑‑I had a statement, this is my statement. That's all I can tell you.
PN977
Are you sure you didn't speak to them and then go back on a separate occasion, after you had given you a statement to sign up?‑‑‑Sorry, sign up to?
PN978
Sign up to the statement?‑‑‑I don't understand that question.
PN979
Well I asked you how many times you had been there before and I don't think you could remember?‑‑‑I attended the Royal Commission so I attended that day that I submitted my evidence.
PN980
So you went there on the 28th? Who typed this, this particular statement?‑‑‑No idea, no idea. I couldn't tell you.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN981
Well I'm just trying to work out how it was compiled. You seem to be suggesting that you went to the Royal Commission and presented them with a document and that formed the basis of your statement. Do you remember if that's the case?‑‑‑No, I don't recall, no.
PN982
So it may be that you went and spoke to them and then they presented you with a document and then you signed it?‑‑‑No, I don't remember that, no.
PN983
Well, do you know what happened?‑‑‑I attended and I submitted my statement.
PN984
But you've got no explanation as to why you used the term casual when in the witness box today you deny you were a casual at the time?‑‑‑Look, what's in my statement is correct.
PN985
What, you were a casual?‑‑‑I worked mainly full time hours though, so.
PN986
Now, you see in this statement, in paragraph 6 you refer to a document titled Form F17 Employers Declaration Support of Application for Approval of Enterprise Agreement. See that?‑‑‑I see it, yes I do.
PN987
You see the reference, that's all I'm asking, you see the reference? To the document in paragraph 6?‑‑‑On my statement?
PN988
Yes?‑‑‑Yes, I can see that.
PN989
You say I have been shown a document. Who showed you the document?‑‑‑Was it someone in the building showed me that document.
PN990
The Royal Commission?‑‑‑I think so, yes, from what I can remember.
PN991
Well that suggests - I know you're unclear before about this, but that suggests that this statement was produced after you had spoken to the Royal Commission people, doesn't it?‑‑‑Look I couldn't say, I mean, no I couldn't say that.
PN992
You wouldn't say that or you couldn't say that?‑‑‑I'm not sure.
PN993
Do you know what that document is?‑‑‑No.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN994
See, have you read your statement today?‑‑‑Briefly, yes, briefly.
PN995
It's mainly about that document, isn't it?‑‑‑So what are you asking me, sorry?
PN996
I'm just saying your statement that we're looking at here is mainly about the document referred to in paragraph 6?‑‑‑My statement has like, how many point is it, 17 points.
PN997
Yes?‑‑‑So you're saying to me is my statement just point six? Is that what you're saying to me.
PN998
No, no, but see, after paragraph 6, you see it says it's been marked RJ2. See that in paragraph 6?‑‑‑Right.
PN999
Paragraph 7 you refer to RJ2. Paragraph 8 you refer to RJ2. Paragraph 9 you refer to RJ2. Paragraph 10 you refer to RJ2. Paragraph 11 and 12 you're talking about what you've said in paragraph 10. Paragraph 13 you're talking about RJ2. Paragraph 14 you're talking about what you've said in paragraph 13. See that?‑‑‑Can I see those points.
PN1000
The RJ2?‑‑‑I can RJ2, yes.
PN1001
Did you follow through when I was - - -?‑‑‑Yes.
PN1002
So all I was saying to you, was that your statement is mainly about RJ2. You'd accept that wouldn't you?‑‑‑I mean you're telling the story, so if that's what you think it is.
PN1003
No, you're telling the story, I'm merely assisting you?‑‑‑Look, what's the question. Is it RJ2 is seen on this page, yes it is. Was that your question?
PN1004
I'm saying - I'm just putting to you quite a simple proposition. It's not a trap. Your statement is mainly about RJ2?‑‑‑I mean, that's what you're saying.
PN1005
Well what are you saying?‑‑‑Well I'm not saying anything at all, because RJ2 is in the document, yes.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1006
Anyway?‑‑‑I guess we can move on.
PN1007
Not a bad idea probably, but perhaps we might look at RJ2 before we move on because you don't really know, sitting here now what it is, do you?‑‑‑Is that what you're asking me?
PN1008
Yes?‑‑‑I know what an RJ2 is, yes.
PN1009
What is it? What is it?‑‑‑What, in my terminology?
PN1010
Yes?‑‑‑From what I remember, it's an agreement.
PN1011
Well it's not an agreement, because in your terminology in paragraph 6, you say what it is, it's an employer's declaration in support of application for approval of enterprise agreement?‑‑‑So you're saying it's not an agreement, is that what you're saying to me.
PN1012
I've got to ask the questions, you can respond, but anyway. I think it's better now to show you RJ2. Might I just approach the witness box and show the witness RJ2 from a copy of exhibit 5? I'm showing you a copy of RJ2. Does that refresh your memory on what you were looking at when you made your statement? Does it refresh your memory?‑‑‑Refresh your memory of what, sorry?
PN1013
What you were looking at when you made this statement about - which is your evidence in these proceedings and was your evidence in the Royal Commission proceedings.
PN1014
VICE PRESIDENT HATCHER: Mr Spatolisano, the document you've been shown starts on the page that is open. You can see the pages are numbered in the top right hand corner and they go through to page 95?‑‑‑So 87 and 95.
PN1015
Yes. See at 95 there's some signatures. Have you seen that document before?‑‑‑Yes I have.
PN1016
Is that the document that you refer to in your statement?‑‑‑Yes it is.
PN1017
MR CRAWSHAW: Now, in this statement at paragraph 7 you refer to paragraph 2.1, do you see that?‑‑‑Yes.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1018
You see paragraph 2.1 in the RJ2?‑‑‑Yes.
PN1019
You say "During my time as an employee of MPR I was not told about or given any documents about my right to be represented in relation to any EBAs. See that?‑‑‑Do I see it?
PN1020
No, do you that in your statement at paragraph 7?‑‑‑Yes, that's correct.
PN1021
You're talking about something that happened in this case, four or five years ago, aren't you?‑‑‑Did this happen four or five years ago, is that what you're asking me?
PN1022
Well, your employment was four or five years ago?‑‑‑Yes, my employment was four or five years ago.
PN1023
So I want to suggest to you that it's a long time ago?‑‑‑To you or to me?
PN1024
To you?‑‑‑Five years is five years.
PN1025
It's hard to remember what happened all that long ago, isn't it?‑‑‑No, I'm clear, I can remember that.
PN1026
You can remember that, but you can't remember what happened at the Royal Commission when you made your statement three months ago?‑‑‑I remember it the best I could.
PN1027
I'm not saying you don't remember anything, but you'd accept that your memory is not perfect about what happened five years ago, wouldn't you?‑‑‑So you're asking me, my memory is not perfect?
PN1028
Yes?‑‑‑I couldn't answer that.
PN1029
Sorry?‑‑‑I mean I couldn't answer that.
PN1030
You couldn't answer that?‑‑‑My memory is fine. I remember that clearly.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1031
What do you remember?‑‑‑Everything in my statement.
PN1032
No, but what do you remember in particular?‑‑‑Not sure what you're trying to ask me.
PN1033
COMMISSIONER McKENNA: Concerning, Mr Crawshaw?
PN1034
MR CRAWSHAW: About what do you remember in particular about paragraph 7? You have a perfect memory of that, do you?‑‑‑"During my time as an employee of MPR I was not told about or given any documents about my right to be represented in relation to any EBA". That's what I remember.
PN1035
Yes, so it may have happened, and you've forgotten about it?‑‑‑Sorry, what may have happened?
PN1036
You may have been given documents about your right to be represented in relation to the EBA?‑‑‑No, no I wasn't.
PN1037
All I'm suggesting is that it may happened and you may have forgotten?‑‑‑No, no.
PN1038
Why are you so sure?‑‑‑Because I would remember that.
PN1039
What in the same way that you remembered how you did a statement at the Royal Commission three months ago?‑‑‑So, can you say that again?
PN1040
You can't even remember whether you were given a document in relation to this statement by the Royal Commission, can you? When you made your statement, you can't remember whether they gave you a document containing that statement?‑‑‑Sorry, what was the question?
PN1041
That's the question. You can't remember whether the Royal Commission gave you a document containing this very statement?‑‑‑No, they didn't. No, that's my statement.
PN1042
No, I'm asking whether you can remember or not?‑‑‑Remember - - -
PN1043
Whether they gave you a statement. Can you remember?‑‑‑Who's they?
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1044
The Royal Commission?‑‑‑I was told to go - I submitted my evidence and that was that. I'm not sure.
PN1045
I'm asking you whether the Royal Commission gave you any document. Let's not worry about your statement, did they give you any document at all?‑‑‑Who?
PN1046
The Royal Commission?‑‑‑I mean what document?
PN1047
Any document?‑‑‑I don't know what you're talking - honestly I can't answer that. I'm not sure what the question is.
PN1048
You can't remember whether they gave you a document at all, can you?‑‑‑I don't know what you're talking about - honestly I don't understand the question.
PN1049
The question is do you remember whether the Royal Commission gave you any document when you went in there approximately three months ago?‑‑‑What document.
PN1050
Any document?‑‑‑I can't answer that. I don't know.
PN1051
Because you can't remember. That's right, isn't it? You can't remember?‑‑‑I can't remember what, sorry? I mean that's my statement, I submitted it, that's what I did.
PN1052
VICE PRESIDENT HATCHER: You submitted a statement saying that you'd seen RJ2?‑‑‑Which is this document right here?
PN1053
Yes?‑‑‑So I have seen this statement, yes.
PN1054
Who showed that to you?‑‑‑I don't know, it was someone in that building.
PN1055
So someone showed you the statement RJ2 first?‑‑‑I saw this RJ2 and that was that.
PN1056
Did someone in the Royal Commission show that to you?‑‑‑Someone in that building did, yes.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1057
Then you prepared a statement after you saw that document. Is that what you are saying?‑‑‑I did my statement and I think it was just - I saw that document and that was it. I mean, someone did show me this statement. I don't know who, I can't say.
PN1058
Did someone show you the statement or the document?‑‑‑This RJ2 document.
PN1059
So someone showed you that. Was that the first time you'd see it?‑‑‑Yes.
PN1060
Then you prepared your statement, or did someone in the Royal Commission prepare it for you?‑‑‑No, I did it. Someone - - -
PN1061
SENIOR DEPUTY PRESIDENT HAMBERGER: Can I ask you, did they ask you a series of questions and then they wrote something up, typed up a document, got you to read it, and then you signed it. Is that how it worked?‑‑‑Yes, that's how I did my statement, yes.
PN1062
MR CRAWSHAW: You remember that now, do you?‑‑‑So what are you asking me?
PN1063
You remember that, how the statement was made?‑‑‑That was my statement and that was it.
PN1064
That's how it happened? You went in there, you were asked a series of questions and then they gave you a document which is what is now your witness statement?‑‑‑This is my document. I'm not a legal person, so I wouldn't have had that, would I? I saw that on the day.
PN1065
Let's forget about RJ2, let's just worry about your witness statement?‑‑‑So you're talking about my statement now?
PN1066
Yes. That was the questions that the member of the tribunal just asked you. It was about your statement. You said you went in there, you were asked some questions and then you were presented with a document, which is that statement; your witness statement. You agreed with that. Do you remember agreeing with that?‑‑‑With the person up here, yes.
PN1067
Yes?‑‑‑Yes, I did - - -
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1068
So you remember receiving that document from the Royal Commission now, do you?‑‑‑Sorry, what is the question? The document - - -
PN1069
The witness statement document?‑‑‑This is my statement, yes.
PN1070
You remember receiving it from the Royal Commission?‑‑‑Receiving it? I mean, I just went in there and - - -
PN1071
Receiving a piece of paper with that statement on it. Did you get that?‑‑‑Did someone hand me this piece of paper? So someone - - -
PN1072
Well, hand you the witness statement?‑‑‑Someone handed me this statement. Is that what the question is?
PN1073
Yes?‑‑‑Someone did hand me this. They did, yes.
PN1074
VICE PRESIDENT HATCHER: Mr Crawshaw, I think we have explored that as far as we reasonably can.
PN1075
MR CRAWSHAW: Well, I'll just ask this question: after they gave you that document, did you sign it?‑‑‑That's my signature, isn't it?
PN1076
Yes?‑‑‑Yes, so I signed it.
PN1077
Did you read the statement before you signed it?‑‑‑Yes.
PN1078
Are you sure?‑‑‑Are you asking me the same question again?
PN1079
Yes?‑‑‑Yes.
PN1080
You don't remember whether you read it or not, do you?‑‑‑That's my signature right there.
PN1081
Yes. You remember signing it, do you?‑‑‑Absolutely.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1082
Let's just go back to the statement. In paragraph 8, you said:
PN1083
I'm unaware of any document being given to any employee about our rights to be represented in relation to the EBA.
PN1084
Do you see that?‑‑‑Yes.
PN1085
You don't know what was given to other employees, do you?‑‑‑I can't speak - I wouldn't know.
PN1086
So you can only speak for yourself?‑‑‑Of course.
PN1087
VICE PRESIDENT HATCHER: At the time that you started with MPR Scaffolding, do you recall how many other employees worked with you at the company?‑‑‑It would be between two or four employees most days. Look, it varied. Around two or four people.
PN1088
Were any of those permanent employees?‑‑‑Look, I couldn't say.
PN1089
Mr Josifoski, did he sort of work on the tools with you every day or just sometimes or never?‑‑‑No, he worked on the tools with us.
PN1090
All the time?‑‑‑Yes.
PN1091
MR CRAWSHAW: Just following up from that, you started in mid‑June 2010. You see that?‑‑‑Paragraph 4?
PN1092
Yes?‑‑‑That's right.
PN1093
You remember that?‑‑‑Yes.
PN1094
Do you remember where you started?‑‑‑Sorry, what is that question, where I started?
PN1095
Where were you when you started in mid‑June 2010? What job?
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1096
VICE PRESIDENT HATCHER: Ask him what job he started on.
PN1097
MR CRAWSHAW: Yes.
PN1098
COMMISSIONER McKENNA: Or physical location?‑‑‑Physical location?
PN1099
Yes?‑‑‑I don't know. I can't answer that.
PN1100
MR CRAWSHAW: Do you remember what the job was?‑‑‑No.
PN1101
Do you remember the type of job it was?‑‑‑It was a scaffolding job.
PN1102
What sort of site?‑‑‑Sorry, what are you asking me? What sort of site?
PN1103
Residential, commercial? Do you remember?‑‑‑I have no idea.
PN1104
Anyway, if I come back to your statement, in paragraph 9 you said you had read paragraphs 2.2(b) and 2.2(c) of RJ2 and then you say, "I didn't attend any vote." You're unaware of any vote that took place. The situation is that a vote could have taken place when you weren't there, right?‑‑‑You see, I mean, what - do you want me to assume, yes? I can't answer that.
PN1105
I don't want you to assume. It's obvious, isn't it? We don't have to assume. It's obvious that a vote could have taken place when you weren't there?‑‑‑I can't answer that. How should I know?
PN1106
COMMISSIONER McKENNA: You're a casual employee, not a permanent employee. I know you were working regular hours, but you weren't one of the permanent employees?‑‑‑I was there every day, Monday to Friday. Yes, I was there every day.
PN1107
MR CRAWSHAW: All the time?‑‑‑Yes.
PN1108
Never had a day off?‑‑‑Rarely.
PN1109
Rarely?‑‑‑I never took days off.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1110
But rarely, you did. Is that right?‑‑‑I was there every day.
PN1111
Did you gradually build up to full‑time hours or were you doing full‑time hours from the start?‑‑‑From the start.
PN1112
But you don't remember what job you were at?‑‑‑It would vary. It just depends.
PN1113
Well, do you remember any of the jobs you were at?‑‑‑Construction sites. I mean, there's not much there to remember.
PN1114
You see, what I want to suggest is that a vote could have taken place when you were there and you've forgotten about it?‑‑‑No.
PN1115
Five years ago?‑‑‑Absolutely not. I'm clear no vote took place while I was there.
PN1116
If we just move on, in paragraph 10 you refer to paragraph 2.4. You say you didn't attend any meetings about the EBA and various other things. Do you see that?‑‑‑Do I see paragraph 10, yes.
PN1117
It's more accurate to say you don't recall any such meetings?‑‑‑No. That's absolutely correct, paragraph 10.
PN1118
Sorry?‑‑‑That's correct, number 10 of my statement.
PN1119
You may have attended such meetings and you could have forgotten about it?‑‑‑No, not at all. I remember clearly, no, I didn't attend any meetings.
PN1120
So you didn't attend any, no. In paragraph 12, you say:
PN1121
I do not recall Petar Josifoski or any other MPR employee taking steps to explain the EBA to me or advising me that a copy of the EBA was available for inspection.
PN1122
You see that?‑‑‑Yes, I do.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1123
You say, "I don't recall," because you don't really have a good memory of whether that occurred or not?‑‑‑It didn't occur. No, it didn't.
PN1124
No, you didn't say, "It didn't occur." You said, "I don't recall." Do you understand the difference between, "I don't recall," and, "It didn't occur"?‑‑‑It's the same thing though, isn't it, if you look at it?
PN1125
As far as you're concerned, not recalling - - -?‑‑‑So if I didn't recall it happening, it didn't happen.
PN1126
Okay?‑‑‑Obviously.
PN1127
So anywhere where you say something didn't happen, we can assume that you don't recall. Is that right?‑‑‑I can't - I'm not sure what you mean by that.
PN1128
That it's interchangeable with you not remembering?‑‑‑No, we talked about that instance that you just spoke of.
PN1129
Yes?‑‑‑You talked about the example of 12.
PN1130
Yes?‑‑‑So you want me to apply that to everywhere else. No.
PN1131
So you do see a difference between, "I don't recall," and saying, "I do remember and it didn't happen"?‑‑‑I think it's the same conclusion.
PN1132
You think it's the same, do you?‑‑‑In that situation, that's exactly what happened in 12 - paragraph 12.
PN1133
Yes. You didn't remember in 12. "I don't recall." That means you didn't remember?‑‑‑Yes, that's correct.
PN1134
That's the case with all the other denials you have made in relation to RJ2. You just don't remember?‑‑‑No, that's not the case.
PN1135
You see, what happened here is that you went in and saw these Royal Commission people. They wrote up this statement and then gave it to you. Right? That's what happened, isn't it?‑‑‑Someone handed me my statement, yes.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1136
Yes?‑‑‑Someone handed me the statement.
PN1137
You didn't change anything in what they gave you, did you?‑‑‑Sorry, what are you asking me? If I - - -
PN1138
Do you remember this?‑‑‑This document, yes.
PN1139
You remember getting this statement from the Royal Commission people?‑‑‑Yes.
PN1140
You remember that?‑‑‑I remember this statement, yes.
PN1141
You remember getting it from them?‑‑‑Yes.
PN1142
When you got it from them, you didn't change a word, did you?‑‑‑I went through my statement and removed things and added things - added my own things, so, yes, this - - -
PN1143
Okay. Do you remember what you added?‑‑‑I mean, I went through the whole thing. I didn't whole thing.
PN1144
You added words?‑‑‑Did I add "RJ" - this terminology, no.
PN1145
No, did you add any words at all?‑‑‑They were all my - yes, this is all mine.
PN1146
This is all yours?‑‑‑Yes, except for this "RJ2". I mean, that's legal stuff that I knew was associated to this. I mean, this is my statement.
PN1147
What business are you in at the moment?‑‑‑I run a carpet cleaning business now.
PN1148
Do you have anything to do with the Josifoskis?‑‑‑What do you mean?
PN1149
In your business?‑‑‑In business?
PN1150
Yes?‑‑‑No, not at the moment.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1151
What about outside business?‑‑‑They are family.
PN1152
They are family?‑‑‑Yes.
PN1153
What sort of family?‑‑‑Family.
PN1154
What is the relation?‑‑‑Petar is my brother‑in‑law.
PN1155
You didn't think it important to mention that to the Royal Commission?‑‑‑(No audible reply).
PN1156
Sorry, you may have told - did you tell the Royal Commission that?‑‑‑(No audible reply).
PN1157
I don't want to make that a memory test, Mr Spatolisano?‑‑‑Are you insulting me now?
PN1158
Sorry?‑‑‑Are you insulting me now?
PN1159
No, I'm not having a go at you at all. I'm just saying - - -?‑‑‑I mean, I'm under oath. I'm doing my best here.
PN1160
Yes. I withdraw the question about did you tell the Royal Commission that, because it shouldn't be a memory test, especially if there is a suggestion you did. If you can just give me a minute. I may come back to it.
PN1161
VICE PRESIDENT HATCHER: When you say Mr Josifoski is your brother-in‑law, does that mean - this may sound like a stupid question - Rosa Josifoski is your sister?‑‑‑Yes, that's right.
PN1162
MR CRAWSHAW: I think I do have to ask you this question, because although people have suggested to me it was in your evidence, I can't see it. Did you tell the Royal Commission that Petar Josifoski is your brother‑in‑law and Rosa Josifoski is your sister?‑‑‑I think it's common knowledge as far as I knew, yes.
PN1163
Well, common knowledge where?‑‑‑To everyone. I mean, it's - - -
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1164
Does that mean because you assumed everyone knew it, you didn't tell the Royal Commission?‑‑‑I did - I'm sure they knew about it, yes, from what I remember.
PN1165
VICE PRESIDENT HATCHER: Perhaps you can just answer the question directly. Do you recall telling anybody about that fact at the Royal Commission?‑‑‑Yes. From what I remember, yes, I did.
PN1166
MR CRAWSHAW: You didn't put it in your statement?‑‑‑Did I put it in my statement? No, I didn't.
PN1167
You knew you were giving evidence that favoured the interests of your brother‑in‑law and sister?‑‑‑Look, I wouldn't know. I can't answer that.
PN1168
You wouldn't know?‑‑‑I couldn't answer that.
PN1169
You don't know why you were giving this evidence?‑‑‑Someone told me to come and give my evidence, and I gave my evidence. That was it. I wasn't looking - that was it. Simple as that.
PN1170
How did you come to go to the Royal Commission?‑‑‑They sent me a - I think it was a summons or something.
PN1171
Did you speak to your sister or brother‑in‑law about the matter before you got a summons?‑‑‑No.
PN1172
Are you sure about that?‑‑‑Yes. I didn't. I got the summons and I went there.
PN1173
They didn't tell you a summons was coming?‑‑‑No.
PN1174
Or that they were looking for workers? The Royal Commission was looking for workers who had worked for their company?‑‑‑No.
PN1175
Have you spoken to them about this evidence at all?‑‑‑No.
PN1176
Never?‑‑‑(No audible reply).
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1177
Sorry?‑‑‑No, this is - I'm not supposed to, no.
PN1178
You're not supposed to?‑‑‑No.
PN1179
Who told you that?‑‑‑Well, I just thought why would you be talking about this. No, not meant to. You get the summons, you go there, give your evidence and that's it.
PN1180
What about since?‑‑‑No, I haven't.
PN1181
You never discussed with your sister how you both appeared at a Royal Commission?‑‑‑No.
PN1182
Do you see her at all?‑‑‑Do I see - yes.
PN1183
How often?‑‑‑It varies.
PN1184
How often since you gave evidence at the Royal Commission?‑‑‑I couldn't say. I mean, I don't count the visits.
PN1185
No, but just roughly?‑‑‑God knows.
PN1186
Weekly?‑‑‑I have no idea.
PN1187
It could be weekly?‑‑‑I can't answer that. I don't know.
PN1188
Are you being truthful?‑‑‑Absolutely.
PN1189
And you can't tell us how often you have seen your sister in the last three months even on a rough estimate?‑‑‑Seen my sister? What do you want me to say? I mean - - -
PN1190
10 times? About 10 times?‑‑‑Often. I don't know.
PN1191
20 times? About 20 times?‑‑‑20 times in how long?
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1192
Three months, since you gave that evidence?‑‑‑I'd say once every week or so.
PN1193
Every week. You remember that now, do you?‑‑‑I'm not counting it. I don't know. Around that time, yes.
PN1194
You have seen her at least 10 times since you both gave evidence to the Royal Commission. Is that right?‑‑‑You're making me speculate. Look, I guess it could be that amount - that time.
PN1195
Anyway, in all those times in the last three months that you have seen her, you have not once - not once - discussed with her that you both gave evidence at the Royal Commission?‑‑‑No. I didn't speak about this, no.
PN1196
VICE PRESIDENT HATCHER: I think again we have explored that as much as we possibly can, Mr Crawshaw.
PN1197
MR CRAWSHAW: Yes.
PN1198
What I want to suggest to you, Mr Spatolisano, is that when you make these categorical denials in your statement that various things in RJ2 happened, you're doing it to favour your sister and brother‑in‑law?‑‑‑No.
PN1199
Thank you.
PN1200
VICE PRESIDENT HATCHER: Mr Spatolisano, you gave evidence to the Royal Commission that you had joined the CFMEU in 2010. Do you remember that?‑‑‑Yes, I did. I've got the - yes, I joined.
PN1201
Remember you were shown a membership application which I think demonstrated that you joined on 28 July 2010?‑‑‑Yes. I think that's correct, yes.
PN1202
Who gave you the membership application?‑‑‑Petar did.
PN1203
Do you know whether he gave that to anybody else?‑‑‑Look, I couldn't say. I'm not sure.
PN1204
Did you fill it out in his presence?‑‑‑Yes, I filled it out and gave it to him.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1205
Gave it back to him?‑‑‑Mm‑hm.
PN1206
Do you presume that he later on passed it on to the CFMEU?‑‑‑I'm not sure, but I presume so.
PN1207
Yes, all right. Any questions arising out of that?
PN1208
MR WARREN: Nothing arising.
PN1209
VICE PRESIDENT HATCHER: Mr Crawshaw?
PN1210
MR CRAWSHAW: No, nothing.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Spatolisano. You're excused and you're free to go?‑‑‑Okay. Thank you.
<THE WITNESS WITHDREW [3.51 PM]
PN1212
MR WARREN: That's the end of, your Honour, the evidence.
PN1213
VICE PRESIDENT HATCHER: Your case.
PN1214
MR WARREN: We have put our evidence in cross‑examination that was required.
PN1215
VICE PRESIDENT HATCHER: Thank you.
PN1216
MR WARREN: I don't know whether my friend has any evidence.
PN1217
MR CRAWSHAW: I think my instructing solicitor notified the Commission and the appellant of various other documents from the Royal Commission that we wanted to rely on originally only if time was extended and permission to appeal - well, permission to appeal was given and permission to call extra evidence was given.
*** VINCENT SPATOLISANO XXN MR CRAWSHAW
PN1218
VICE PRESIDENT HATCHER: I understood there had been an indication that is the evidence you would rely upon in reply if the evidence of the appellant was received, which it now has been.
PN1219
MR CRAWSHAW: Yes, except it has only been received for the purpose - other than unprovisionally as I understand it, for the purpose of the application to extend time.
PN1220
VICE PRESIDENT HATCHER: Yes, but on the same basis - - -
PN1221
MR CRAWSHAW: Yes.
PN1222
VICE PRESIDENT HATCHER: - - - you presumably rely on the same evidence that you have identified earlier?
PN1223
MR CRAWSHAW: Yes. Both in relation to the transcript that we notified you that we were - that I just read out earlier that we rely on and this material, we do it without prejudice to any argument about calling extra evidence, because it could be said, "Well, you wanted to call extra evidence," and seeing as both parties want to call extra evidence, I think - - -
PN1224
VICE PRESIDENT HATCHER: That is in the event that we admitted Mr Warren's evidence on the appeal, this is the evidence that you would rely upon in reply?
PN1225
MR CRAWSHAW: Yes. I gather there was an indication that we didn't have to produce hard copies of this.
PN1226
VICE PRESIDENT HATCHER: Well, if we've got it somewhere - do we have it somewhere?
PN1227
MR CRAWSHAW: We've got copies, anyway.
PN1228
COMMISSIONER McKENNA: This is the materials that were attached to the submissions?
PN1229
MR CRAWSHAW: Yes. Perhaps if I could have a moment just to - - -
PN1230
VICE PRESIDENT HATCHER: Do you want us to adjourn for a short period?
PN1231
MR CRAWSHAW: Yes.
PN1232
COMMISSIONER McKENNA: Are they matters such as the statement of Shayne Hall and things - - -
PN1233
MR CRAWSHAW: Yes.
PN1234
COMMISSIONER McKENNA: Yes, I have those in hard copy.
PN1235
MR CRAWSHAW: But in terms of what was notified, we don't need to put all the material in. It would be better if I gave you a fresh folder with what we - - -
PN1236
VICE PRESIDENT HATCHER: All right. We'll adjourn for a short period and you can tell my associate when you're ready.
PN1237
MR CRAWSHAW: Yes.
SHORT ADJOURNMENT [3.54 PM]
RESUMED [4.17 PM]
PN1238
MR CRAWSHAW: We have supplied three copies of the respondent's evidence bundle. It is slightly different than what we foreshadowed. Can I just take you to it. You will see there is an amended index. Behind tab 1 is a statement of Shayne Hall. We only rely on the first page of that statement, the second page being irrelevant. Then in relation to tab 2 there is some transcript of 3 September.
PN1239
VICE PRESIDENT HATCHER: So that's not in exhibit 4?
PN1240
MR CRAWSHAW: No. These are all not in exhibit 4. Tab 2, transcript of Mr O'Mara. In relation to that we rely on the transcript that beings at page 1978 line 9 going through to page 1982 line 22. Behind tab 3 there is two pages of transcript of Mr Kivalu who you may recall was identified by Mr Josifoski as Fifi. We only rely on page 219 lines 5 through to 23. The simple point is that he is no longer working for the CFMEU. The rest of the documents are as set out in the index.
PN1241
VICE PRESIDENT HATCHER: Was Mr Kivalu asked any questions about this matter?
PN1242
MR CRAWSHAW: No, that's why I haven't tendered any other pages. My learned friend says he wants to check the transcript about that and reserve his position. Tab 4 is a letter that is sent to Mr Josifoski saying the paperwork has been lodged with Fair Work Australia by Shayne Hall. Tab 5 is the Federal Circuit proceedings. These were all documents from the Royal Commission. Tab 6 is a series of emails between MPR and the CFMEU. I think Ms Josifoski referred this into her evidence, that she received emails with copies of the documents that were submitted to Fair Work Australia, as it then was, and these are the emails she was referring to and the exhibit is mentioned in her evidence in the Royal Commission.
PN1243
VICE PRESIDENT HATCHER: Any objections?
PN1244
MR WARREN: I have no objections, the only issue that I wish to raise is with respect to the transcript of Mr Kivalu. I wish to check overnight the tape of the transcript of his before the Royal Commission and see if we wish to add anything, that is the only issue.
PN1245
VICE PRESIDENT HATCHER: Is it convenient that I just mark this as a single exhibit, Mr Crawshaw?
PN1246
MR CRAWSHAW: Well, it relates to an issue that I was going to raise, namely whether it wouldn't be more convenient to have - from our point of view - more convenient to have written submissions including references to transcript. The only reason I raise it now rather than in a minute's time is it might be easier to identify the documents if they're separately marked.
VICE PRESIDENT HATCHER: All right. I will mark them separately but I'll come to that issue in a second.
EXHIBIT #7 STATEMENT OF SHAYNE HALL DATED 16/09/2015 PREPARED FOR THE PURPOSE OF THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION
EXHIBIT #8 EXTRACT FROM THE TRANSCRIPT OF THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION OF 03/09/2015, PAGES 1978-1982
EXHIBIT #9 EXTRACT FROM THE TRANSCRIPT BEFORE THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE OF 16/07/2015 PAGE 219
EXHIBIT #10 LETTER FROM CFMEU TO MR PETAR JOSIFOSKI SIGNED BY SHAYNE HALL DATED 11/08/2010
EXHIBIT #11 APPLICATION IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA MADE BY THE CFMEU DATED 03/07/2015
EXHIBIT #12 BUNDLE OF EMAILS DATED AUGUST 2010
PN1248
VICE PRESIDENT HATCHER: Do I take it, Mr Warren, you did not want to cross-examine Ms Hall?
PN1249
MR WARREN: No, your Honour.
PN1250
VICE PRESIDENT HATCHER: Submissions.
PN1251
MR CRAWSHAW: I've already foreshadowed it. We put it on two bases, one we can - well, I suppose I can wrap it up in one. We can better represent our client's position if we can give you references to transcript from today's proceedings, particularly where there's conflicts in evidence if we can do that after we've seen the transcript, which the parties can order urgently. But I don't think it would come in time to enable us to do oral submissions by Friday and we just think it would be, from our point of view, we would be prejudiced by what is happening on appeal which is provisional extra evidence on appeal if we can't do submissions in the same way as one would in a normal appeal where one would have access to any transcript on which reliance was being - which was relevant to the proceedings.
PN1252
VICE PRESIDENT HATCHER: I must say I didn't consider the evidence to be that complex that counsel couldn't give an address with an accurate summary of it tomorrow.
PN1253
MR CRAWSHAW: Credit is an issue.
PN1254
VICE PRESIDENT HATCHER: Yes it is but I think one way or the other the issues that you would raise are fairly apparent, that is they're not subtle, put it that way.
PN1255
MR CRAWSHAW: That is my submission.
PN1256
VICE PRESIDENT HATCHER: I will hear what Mr Warren says about it. Mr Warren.
PN1257
MR WARREN: We are ready to proceed tomorrow but we are in your hands. Obviously if my friend has transcript we would want transcript.
PN1258
VICE PRESIDENT HATCHER: Yes, that's what I'm afraid of. But you're ready to proceed tomorrow?
PN1259
MR WARREN: I can proceed tomorrow.
PN1260
VICE PRESIDENT HATCHER: I think what we will do is, we'll hear the parties oral submissions tomorrow, as far as they can take them, and given the nature of the case we expect that those submissions will be useful. But if parties want to supplement those oral submissions with a document which refers to the transcript when it becomes available, and we'll make sure it is ordered, we will also grant leave for the parties to do that. So we would expect to receive the bulk of the submissions tomorrow and then if there's a supplementary document which needs to refer to specific parts of transcript then the parties will have leave to do that in some agreed arrangement.
PN1261
MR WARREN: Yes, your Honour. I will deal with that when it occurs.
PN1262
VICE PRESIDENT HATCHER: Is that suitable Mr Crawshaw?
PN1263
MR CRAWSHAW: Yes, I was about to jump up with that as an alternative when I realised which way you were going to rule. Just so that we don't have to carry so much back to the hotel can I give you our authorities bundle, it's not very big, it's only the authorities in the submissions.
PN1264
VICE PRESIDENT HATCHER: Anything else we can do today? All right, we will adjourn until 10 am tomorrow.
ADJOURNED UNTIL TUESDAY, 21 OCTOBER 2015 [4.30 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
PETAR JOSIFOSKI, SWORN............................................................................ PN111
EXAMINATION-IN-CHIEF BY MR WARREN............................................. PN111
EXHIBIT #1 WITNESS STATEMENT OF PETAR JOSIFOSKI DATED 14/09/2015 PN117
EXHIBIT #2 WITNESS STATEMENT OF PETAR JOSIFOSKI MADE FOR THE PURPOSE OF THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION, DATED 27/05/2015, PARAGRAPHS 1 TO 9 INCLUSIVE ONLY PN149
THE WITNESS WITHDREW............................................................................ PN161
EXHIBIT #3 WITNESS STATEMENT OF PETAR JOSIFOSKI MADE FOR THE PURPOSE OF THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION, DATED 27/07/2015.................................................................. PN204
EXHIBIT #4 AFFIDAVIT OF WILLIAM WARD AFFIRMED ON 15/09/2015 PN216
PETAR JOSIFOSKI, RECALLED.................................................................... PN218
EXAMINATION-IN-CHIEF BY MR WARREN............................................. PN218
CROSS-EXAMINATION BY MR CRAWSHAW............................................ PN220
THE WITNESS WITHDREW............................................................................ PN626
ROSA JOSIFOSKI, SWORN............................................................................... PN734
EXAMINATION-IN-CHIEF BY MR WARREN............................................. PN734
EXHIBIT #5 WITNESS STATEMENT OF ROSA JOSIFOSKI DATED 28/07/2015 PN744
CROSS-EXAMINATION BY MR CRAWSHAW............................................ PN745
RE-EXAMINATION BY MR WARREN.......................................................... PN851
THE WITNESS WITHDREW............................................................................ PN879
PETAR JOSIFOSKI, RECALLED AND RESWORN.................................... PN890
EXAMINATION-IN-CHIEF BY MR WARREN............................................. PN890
CROSS-EXAMINATION BY MR CRAWSHAW............................................ PN901
THE WITNESS WITHDREW............................................................................ PN935
VINCENT SPATOLISANO, SWORN............................................................... PN937
EXAMINATION-IN-CHIEF BY MR WARREN............................................. PN937
EXHIBIT #6 WITNESS STATEMENT OF VINCENT SPATOLISANO DATED 28/07/2015................................................................................................................................. PN941
CROSS-EXAMINATION BY MR CRAWSHAW............................................ PN942
THE WITNESS WITHDREW.......................................................................... PN1211
EXHIBIT #7 STATEMENT OF SHAYNE HALL DATED 16/09/2015 PREPARED FOR THE PURPOSE OF THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION.................................................................................................... PN1247
EXHIBIT #8 EXTRACT FROM THE TRANSCRIPT OF THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION OF 03/09/2015, PAGES 1978-1982............................................................................................................................... PN1247
EXHIBIT #9 EXTRACT FROM THE TRANSCRIPT BEFORE THE ROYAL COMMISSION INTO TRADE UNION GOVERNANCE OF 16/07/2015 PAGE 219........... PN1247
EXHIBIT #10 LETTER FROM CFMEU TO MR PETAR JOSIFOSKI SIGNED BY SHAYNE HALL DATED 11/08/2010................................................................................. PN1247
EXHIBIT #11 APPLICATION IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA MADE BY THE CFMEU DATED 03/07/2015................................................ PN1247
EXHIBIT #12 BUNDLE OF EMAILS DATED AUGUST 2010................... PN1247
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/619.html