|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1053429
COMMISSIONER HUNT
C2016/3657
s.418 - Application for an order that industrial action by employees or employers stop etc.
Lend Lease Building Pty Ltd
and
Construction, Forestry, Mining and Energy Union
(C2016/3657)
Brisbane
10.16 AM, FRIDAY, 6 MAY 2016
PN1
THE COMMISSIONER: Good morning, I'll take the appearances.
PN2
MR B CAMERON: Cameron, initial B, from the Master Builders Association appearing on behalf of Lendlease Building Pty Ltd. Appearing with me Bennett, initial S, who is the Workplace Relations Manager, Queensland, Northern Territory for Lendlease Building Pty Ltd., and I have two witnesses, if it pleases the Commission.
PN3
THE COMMISSIONER: Thank you, and the witnesses are present are they?
PN4
MR CAMERON: No, Commissioner, the witnesses are outside in the building.
PN5
MR L TILEY: If it please the Commission, my name is Tiley, spelt T-i-l-e-y, initial L, solicitor of the firm Hall Payne Lawyers. I appear with my friend Mr Steadman for the two respondents.
PN6
THE COMMISSIONER: Is there any objection, Mr Cameron, to Mr Tiley's appearance?
PN7
MR CAMERON: No.
PN8
THE COMMISSIONER: On that basis, Mr Tiley, I'll grant leave under section 596 for you to appear.
PN9
MR TILEY: If it please the Commission.
PN10
THE COMMISSIONER: Mr Cameron?
PN11
MR CAMERON: Commissioner, before you, you have an application to Lendlease. The application is for a 418 order. The application relates to a project on the Sunshine Coast called the Sunshine Coast University Hospital. It is a large project, Commissioner. It consists of approximately five buildings, around a thousand workers, and it is quite a complex project.
PN12
The project is currently experiencing a reduced workforce and that is partly imposed by a picket on the site. So, we'll go through the evidence today and we'll be calling for a 418 order. If it pleases the Commission, could I call my first witness?
PN13
THE COMMISSIONER: Let us deal first with the order of substitute service. I would like to be satisfied that all of those people who you say that should have been served have been.
PN14
MR CAMERON: I was going to have my witness verify that, but not a problem.
PN15
THE COMMISSIONER: Do you require a witness - it's not contested?
PN16
MR TILEY: No, no question as to service, Commissioner.
PN17
THE COMMISSIONER: Then have your witnesses deal with it through the course of the evidence, but if it's not contested, it should not be a weighty matter that you spend a lot of time on then, Mr Cameron.
PN18
MR CAMERON: Certainly, I'll just hand up the relevant documents?
PN19
THE COMMISSIONER: Thank you.
PN20
MR TILEY: Perhaps through the witness, Commissioner.
PN21
THE COMMISSIONER: I think through the witnesses would be preferable, Mr Cameron.
PN22
MR CAMERON: No further due, could I call Mark Plummer as a witness?
PN23
THE COMMISSIONER: Yes, thank you.
PN24
MR TILEY: Your Honour, there are two objections to the statement of Mr Plummer, and if I can hand up a schedule of those objections, one of which might be best dealt with in the absence of the witness.
PN25
THE COMMISSIONER: Thank you, yes.
PN26
MR TILEY: To the extent necessary, I seek to have that marked for identification, Commissioner, if you wish.
PN27
THE COMMISSIONER: We'll mark that one. Any objection, Mr Cameron?
MR CAMERON: No, Commissioner.
EXHIBIT #R1 SCHEDULE OF OBJECTIONS
PN29
THE COMMISSIONER: Would you like to take us through that, Mr Tiley.
PN30
MR TILEY: Thank you, Commissioner. The first objection to Mr Plummer's statement is to paragraph 16 which is on the third page. It's my understanding that that objection is conceded and that the paragraph is not to be read. Perhaps my friend might confirm that for the record, Commissioner.
PN31
THE COMMISSIONER: I'm just giving Mr Cameron some time.
PN32
MR CAMERON: Yes, we agree, Commissioner. Mr Plummer was not at the meeting with Mr Kong when he addressed the workers.
PN33
THE COMMISSIONER: All right, so you're seeking to - - -
PN34
MR TILEY: The objection being conceded the paragraph won't be read and won't form part of the evidence in the matter.
PN35
THE COMMISSIONER: Thank you.
PN36
MR TILEY: We needn't explain any further the basis for that objection. The next objection is over the page to paragraph 19 of Mr Plummer's statement where you will see, Commissioner, Mr Plummer purports to give evidence that he was advised of a particular thing by somebody but that person is not identified. That is self-evidently hearsay, and the worst category of hearsay, because it is unsourced.
PN37
Obviously, as the Commission is well aware, the difficulty that creates for my client is that it cannot meet that evidence and it can be given no weight at all. We submit that the proper course, notwithstanding the fact that strictly speaking the Commission is not bound by the rules of evidence, would be for you to rule that evidence was not admissible and should be struck from the statement.
PN38
It would be, in my respectful submission, unsafe to admit it, subject to a subsequent assessment of weight, because you are completely unable to make that assessment without any evidence at all as to who it was that told Mr Plummer that thing. They may very well have been a stranger to these events and this site or, otherwise, we just don't know. Those are the submissions on our objection, Commissioner.
PN39
THE COMMISSIONER: Mr Cameron?
PN40
MR CAMERON: Commissioner, my friend can ask Mr Plummer in the witness box who the person was or was he aware of who the person was, or what role did that person on the site, what were they wearing, what company were they working for; he can address that in cross-examination. In addition, the witness may correct his statement.
PN41
THE COMMISSIONER: Paragraph 19 of Mr Plummer's statement is incomplete in any event. I expect that he is likely to say, "At 6.30 am I was advised." I will allow Mr Cameron, in chief, to ask Mr Plummer to address paragraph 19 and that might be more helpful, and he may in fact identify who it was that he said said those things to him. Then you can ask him questions in cross-examination.
PN42
MR TILEY: The difficulty with that course, Commissioner, and I'm not cavilling with your ruling, but the difficulty is that I would then need instructions to enable me to cross-examine him on that which falls from him because I've not been able to get any instructions on that paragraph thus far as it stands. So, such as your ruling, we can proceed in that matter but I must foreshadow that that may then require a short adjournment for me to take instructions on that which falls from Mr Plummer.
PN43
THE COMMISSIONER: That's acceptable. There may not be much that comes out of that paragraph, Mr Tiley.
PN44
MR TILEY: Absolutely, Commissioner, we understand. Lastly, paragraph 25 of Mr Plummer's statement suffers from the same vice. There's no further submission to make beyond that which we said about paragraph 19.
PN45
THE COMMISSIONER: Mr Cameron?
PN46
MR CAMERON: Again, Commissioner, Mr Plummer can address that in his witness statement.
PN47
THE COMMISSIONER: I will allow you, Mr Cameron, to ask some questions of the witness, not going through all of the material that he's put, but there's matters here that have been addressed by the respondent then you can ask the witness to further explain that in chief.
PN48
MR TILEY: Very well, Commissioner. Lastly, an objection was foreshadowed by my friend last night in correspondence to your Chambers about the contents of an email from my client, the CEPU. You may or may not have seen that material, Commissioner, but suffice is to say that's been resolved by the parties inter se and my friend will take the witness through that material in the manner that's been agreed.
PN49
THE COMMISSIONER: Thank you.
PN50
MR TILEY: Those are the objections.
THE COMMISSIONER: Mr Cameron, you may call your witness.
<MARK CAMERON PLUMMER, SWORN [10.26 AM]
EXAMINATION-IN-CHIEF BY MR CAMERON [10.27 AM]
PN52
MR CAMERON: If it pleases the Commission, could we identify the witness. Your occupation, sir?‑‑‑I am a senior construction manager for Lendlease.
PN53
Your full name please?‑‑‑Mark Cameron Plummer.
PN54
If it pleases the Commission, can we hand up a copy of the statement please?
PN55
THE COMMISSIONER: Yes, thank you.
PN56
MR CAMERON: Mr Plummer, could you please take a moment to review that statement and see if there is any alterations or additions or corrections that you'd like to make?‑‑‑No.
PN57
How many pages long is that statement, Mr Plummer?‑‑‑Six pages with one attachment.
PN58
How many dot points is that statement, Mr Plummer?‑‑‑The last dot point is dot point 42.
PN59
No alterations or additions?‑‑‑Not that I'm aware of, no.
PN60
Mr Plummer, if I could take you to dot point 16?‑‑‑Yes.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN61
It has been agreed that that will not form part of your evidence today, so I'd just like to make you aware of that. Now I'd like to take you to paragraph 15, and no alterations or additions there?‑‑‑No.
PN62
Now I'd like to take you to paragraph 19 please. At paragraph 19 you have failed to identify the person who advised you. Would you mind clarifying, or expanding, on that please?‑‑‑I was in the office with, I believe, Lewis Biagini and David Clarke at the time, and I understood David Clarke got a phone call saying the meeting had broken. So, I believe the information came from David Clarke.
PN63
"I was advised"?‑‑‑Yes, I was advised.
PN64
You believe that was from David Clarke?‑‑‑Correct.
PN65
If I can also take you to paragraph 25. Again, "I was advised." It doesn't clarify who - - -?‑‑‑I was advised by - David Clarke had received a phone called while we were walking around, and he mentioned to me that that was what had occurred.
PN66
Again David Clarke?‑‑‑Correct.
PN67
Now, could you take a moment to review paragraphs 22 and 23 to see if there's anything there that needs clarification?‑‑‑In the second-last line it should be, when it says "(indistinct) that they could not lock the gates to" - "of" should have been "to" - "stop people entering the site". I think that's just a typo there, "entering site". Does that make sense?
PN68
Yes. At paragraph 38?‑‑‑Yes.
PN69
I'm assuming that's complaining about the site. Was it open? Yes, it says that site was open?‑‑‑Yes, it does say that.
PN70
My mistake. Do you mind, please, clarifying for us, or articulating to the Commission, what you refer to in 33?‑‑‑What I'm referring to is the questions I asked Tony Kong, from point 27, 29, 31, I rephrased those slightly differently, trying to ask Tony to get him to answer the question as to what was going on.
PN71
That is an accurate response from Tony at 33?‑‑‑Correct. He repeated the response of "no comment" and at the end of it he said "you know what you need to do to fix this." Correct, that's my recollection of what he said.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN72
The attachment, Mr Plummer?‑‑‑Yes.
PN73
Might you read that down the bottom there, at the bottom are the total site numbers?‑‑‑I understand that they are, yes.
PN74
Commissioner, I have a number of other attachments and other documents to go through with this witness. Would my friend like to cross-examine on the statement first, or shall I proceed with the other?
PN75
THE COMMISSIONER: Before you do, do you wish to address me, Mr Tiley on paragraphs 19 and 25?
PN76
MR CAMERON: Sorry, Commissioner, can I have that marked as an exhibit please?
PN77
THE COMMISSIONER: Before it is I'd like to have Mr Tiley address me on paragraphs 19 and 25 as to whether they're to be admitted or not.
PN78
MR TILEY: Commissioner, the evidence in 19 - I beg your pardon - in 19 the witness purports to give evidence of a conversation which he was not a party to, it was Mr Clarke's conversation with somebody else. Mr Plummer can't give evidence of that in an admissible way, the paragraph should be struck.
PN79
THE COMMISSIONER: Mr Cameron?
PN80
MR CAMERON: Commissioner, obviously the nature of these applications is that there is commonly evidence that is led that is not bound by the strict rules of evidence, as the Commission would be aware, and due to the timely nature of the proceedings a level of weight should be given to that evidence.
PN81
THE COMMISSIONER: Mr Cameron, there is no criticism of the preparedness of the statement. However, Mr Tiley is correct, Mr Clarke could be called as a witness if this was an important matter to the applicant. So, on the basis that paragraphs 19 and 25 are hearsay conversations of Mr Clarke repeating a telephone call, we don't know who was on the other end of the phone call, we won't admit paragraphs 19 and 25. On that basis, if there's no further objections, Mr Tiley - - -
PN82
MR TILEY: No further objection, Commissioner.
*** MARK CAMERON PLUMMER XN MR CAMERON
THE COMMISSIONER: Mr Plummer's statement will be marked A1.
EXHIBIT #A1 STATEMENT OF MARK CAMERON PLUMMER.
PN84
MR TILEY: Commissioner, I'm loath to interrupt my friend, but perhaps the most expeditious way might be perhaps I could cross-examine Mr Plummer, which would be of fairly short compass. We can do a quick scan of the documents to be tendered through him and one I'm satisfied that those are all in order then I think they can just go in. That might save my friend taking Mr Plummer through each and every document. If that would be of assistance to you, Commissioner?
PN85
THE COMMISSIONER: What are the documents, Mr Cameron?
PN86
MR CAMERON: Commissioner, it's a series of emails between the site and the subcontractors, the subcontractors and the site; the service documentation which is the emails and arrangements for the substitute service to go out. It is a notice to the (indistinct) to the direct employees, an update of the numbers for today.
PN87
THE COMMISSIONER: Let's have you admit those into evidence, not take the applicant through it if Mr Tiley is suggesting that perhaps it's not contested. If there is anything, Mr Tiley, that comes up you're welcome to ask the witness in relation to that, then Mr Cameron, in arising you can put anything to the witness.
PN88
MR CAMERON: Could I hand them up? That way the witness has them if he needs to refer. Confirmation from the subcontractors that this site was open on 5 May, text message to the - - -
PN89
MR TILEY: Slow down, I'll just have a look.
PN90
THE COMMISSIONER: I have before me one set of documents, Mr Cameron. Important notification of two lifts in operation and site opened. What do you say that is?
PN91
MR CAMERON: That's the substituted service. No, that's notice that the site was open on 5 May. So, this is the notice from Lendlease to the subcontractors, and confirmation from the subcontractors that the site was open on 5 May and that the subcontractors had instructed their workers to return to work. There's another document which is the - notices to the subcontractors that the site was open and the document you have in front of you is the confirmation from the subcontractors that they have told their workers that the site is open.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN92
THE COMMISSIONER: Mr Tiley?
PN93
MR TILEY: Commissioner, this witness isn't a party to these communications, he can't possibly put them in evidence.
PN94
THE COMMISSIONER: Mr Cameron, how is Mr Plummer going to give evidence with respect to this?
PN95
MR CAMERON: He received all those notifications.
PN96
THE COMMISSIONER: How about you hand up as we go, and you show the witness, and we'll have to do it the long way, I think. I thought it wasn't contested but if it is going to be contested it's important that we be satisfied that substituted service has been effected.
PN97
MR CAMERON: This is document is not substituted service, the document in front of you is confirmation from the subcontractors that they have told their employees that the site was open on 5 May.
PN98
THE COMMISSIONER: All right.
PN99
MR CAMERON: We can go through the substituted service ones first if you like, if that would be quicker? Mr Plummer, before you, you have a document entitled - Mr Plummer, you have a document in front of you which is correspondence between the subcontractors and Lendlease, is that correct?‑‑‑Say that again please.
PN100
You have a document in front of you which represents correspondence between a number of subcontractors and Lendlease?‑‑‑Yes, I do.
PN101
If I take you to the cc list of those documents?‑‑‑Yes.
PN102
Do you see your email address?‑‑‑There's a lot of separate emails. I am not on all of these, some of these have been responded to, to Lewis, and Lewis has forwarded - printed them off and given them to me. The second email I actually am cc'd on. So, if you go to the third page - - -
PN103
Could you take a moment to review the emails and confirm whether you are familiar with all of them or not?‑‑‑When you mean familiar with?
*** MARK CAMERON PLUMMER XN MR CAMERON
PN104
Have you seen them before?‑‑‑Yes, I have seen them before.
PN105
Would you mind taking a moment just to scan through to make sure that you have seen them all?‑‑‑I can confirm that I've seen these emails before. In two cases the subcontractors have direct - in all cases the original correspondence which sits at the bottom of the email trail I've been cc'd on the email from Lewis. Lewis sent the email out to all contractors with me as a cc. These contractors have then responded to that email in all bar two - in two cases only they've cc'd me in on that correspondence and I've seen that directly. The others have been printed off by Lewis and given to me in preparation of today's events.
PN106
Lewis works for you, for clarification?‑‑‑Lewis works for me, yes.
PN107
His title is?‑‑‑Construction manager.
PN108
Commissioner, could we have that marked as an exhibit please?
PN109
THE COMMISSIONER: Any objection?
PN110
MR TILEY: No objection.
THE COMMISSIONER: Marked A2.
EXHIBIT #A2 EMAIL TRAILS.
PN112
MR CAMERON: Commissioner, we have another correspondence from the site by Mr Plummer. Mr Plummer, do you recognise that correspondence?‑‑‑I'm just reading it. Yes, I do.
PN113
That correspondence basically confirms the site is open, is operational?‑‑‑Yes.
PN114
Any objection?
PN115
MR TILEY: No objection.
*** MARK CAMERON PLUMMER XN MR CAMERON
THE COMMISSIONER: Mr Tiley, no objection. All right, this document will be marked A3.
EXHIBIT #A3 CORRESPONDENCE CONFIRMING SITE IS OPERATIONAL.
PN117
MR CAMERON: Further correspondence. Just take a moment to review Mr Plummer?‑‑‑Yes.
PN118
Again, is that correspondence confirming that the site is open?‑‑‑Yes, it is.
PN119
Again, that's to the subcontractors?‑‑‑Correct.
PN120
Could I have that marked as an exhibit please?
PN121
THE COMMISSIONER: Any objection, Mr Tiley?
PN122
MR TILEY: I'm just reading it, Commissioner. No objection.
THE COMMISSIONER: Email from Leigh Hughes to Mark Plummer Thursday 5 May 2016 at 8.30 am be marked A4.
EXHIBIT #A4 EMAIL FROM LEIGH HUGHES TO MARK PLUMMER 05/05/16 8.30 AM.
PN124
MR CAMERON: Further correspondence. Please take a moment to review that correspondence?‑‑‑Yes.
PN125
That correspondence again just indicating that the site is open?‑‑‑Yes, it is.
PN126
It's correspondence between the company and the subcontractors, is that correct?‑‑‑The people that are to, yes, they are our subcontractors on the site.
PN127
Could we have that marked as an exhibit, please Commissioner?
PN128
THE COMMISSIONER: Any objection, Mr Tiley?
PN129
MR TILEY: No, objection.
*** MARK CAMERON PLUMMER XN MR CAMERON
THE COMMISSIONER: Email from Lewis Biagini to Mr Plummer and numerous subcontractors is marked A5.
EXHIBIT #A5 EMAIL FROM LEWIS BIAGINI TO MR PLUMMER AND SUBCONTRACTORS.
PN131
MR CAMERON: I don't believe this one is a double-up but I'm happy to be corrected?‑‑‑Yes, I can confirm that email.
PN132
Any objection?
PN133
MR TILEY: No objection, Commissioner.
PN134
THE COMMISSIONER: Do you have the responses to those, Mr Cameron?
PN135
MR CAMERON: The ones we did first, Commissioner, so there was the one response from the subcontractors confirming that they have advised their workers that the site was open.
PN136
THE COMMISSIONER: But it's not the same email, though, is it?
PN137
MR CAMERON: They are a series of emails articulating that the site is open and operating.
PN138
THE COMMISSIONER: But you don't have the answers from them, do you, in relation to this email of 7.38 am?‑‑‑Commissioner, might I just answer that question for you?
PN139
Mr Cameron can take you to that.
PN140
MR CAMERON: Yes, we'll (indistinct) the witness for clarification.
PN141
THE COMMISSIONER: Yes, thank you, Mr Cameron.
PN142
THE WITNESS: At the top of the current one - there's a general communication which has got a reference number LC-G:-086821. If you go to the first handout, I'm not sure what reference it was, but if you go to the bottom - - -
*** MARK CAMERON PLUMMER XN MR CAMERON
PN143
THE COMMISSIONER: Are we going to Exhibit A2, the large - the bulk - - -?‑‑‑The large one, yes. I'm looking at the bottom of page 3. I can see a series of names here and I can see, "Good morning all", and then you can see the mail number, and I can see that same reference number there.
PN144
Mr Cameron, is the effect of Exhibit A2 that some of the answers are to the communication ending 821 and some of them are 822?
PN145
MR CAMERON: That's my understanding, Commissioner.
PN146
THE COMMISSIONER: Mr Tiley, any issue with that?
PN147
MR TILEY: (No audible reply)
THE COMMISSIONER: All right. So, we'll mark the email from Lewis Biagini to Mark Plummer and numerous subcontractors Thursday 5 May at 7.38 am as Exhibit A6.
EXHIBIT #A6 EMAIL FROM LEWIS BIAGINI TO MARK PLUMMER AND NUMEROUS SUBCONTRACTORS THURSDAY 05/05/16 AT 7.38 AM.
PN149
MR CAMERON: Mr Plummer, I have for you a series of photos taken from one of your employees. If you take a moment to review those photos and just briefly, very briefly, explain to the Commission what they are photos of, without necessarily going through photo by photo.
PN150
MR TILEY: I object, Commissioner. This witness didn't take the photos, he didn't witness the events. The statement of Mr Kennedy has been filed and served and we've advised my friend that he's not required for cross-examination. The evidence of Mr Kennedy stands for what it is but Mr Plummer is not in a position to elaborate, or improve upon, the state of Mr Kennedy's evidence, with respect.
PN151
THE COMMISSIONER: Mr Tiley, you informed the applicant that you don't require Mr Kennedy for cross-examination?
PN152
MR TILEY: Yes, Commissioner, yesterday and, likewise, for the fourth witness, Mr Stewart. The only contest is about some very small parts of the evidence of Plummer and Clarke, I beg your pardon Mr Plummer and Mr Clarke I should say.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN153
THE COMMISSIONER: Mr Tiley, on that basis Mr Kennedy's evidence will be admitted and on that basis the witness may be asked questions about the attachment to Mr Kennedy's statement.
PN154
MR TILEY: Well he may, Commissioner, but only - he can only give evidence about the events depicted in Mr Kennedy's statement if he himself was a witness to those events. Otherwise he is merely providing commentary or submission.
PN155
THE COMMISSIONER: We will go to that then. I will allow the questions.
PN156
MR TILEY: I beg your pardon, I might have misunderstood the question.
PN157
THE COMMISSIONER: We'll allow Mr Cameron to ask the witness some questions and if you have any concern that he's not giving firsthand evidence then you can raise an objection at that time.
PN158
MR TILEY: Thank you, Commissioner, that's the extent of the concern.
PN159
THE COMMISSIONER: Mr Cameron?
PN160
MR CAMERON: Mr Plummer, have you had an opportunity to review those photos?‑‑‑Yes, I'm aware, and I've seen those photos previously, yes.
PN161
Are they from your site; are they from your project?‑‑‑The answer is I can recognise the location which is outside our project on Eccles Boulevard, on the eastern side of the project. I can recognise some of the scenery in those photos and I can recognise the location where those photos were taken on our project, looking out across the project.
PN162
In your statement did you witness any of these meetings?‑‑‑As I mentioned in my statement, as I walked to work I saw Mr Peter Ong addressing some of the ETU guys, which I think is in the first couple of the photos. I don't know whether they were taken - no, they wouldn't have been taken at the same time. But I witnessed that, but that's where the meeting that Mr Ong was meeting the guys, and that's where I witnessed the group of people on the other side of the road when I entered the site.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN163
Had you instructed these photos to be taken?‑‑‑I had not instructed them personally, it is standard procedure for one of our foremen to do that automatically so that - without my specific instruction but it's standard procedure for us on site.
PN164
You can confirm that these are photos from your site?‑‑‑Yes, I can confirm that.
PN165
They are from yesterday?‑‑‑Yes.
PN166
Can I have that marked as an exhibit please, Commissioner?
PN167
THE COMMISSIONER: You wish for the statement of Mr Kennedy to be marked as an exhibit?
PN168
MR CAMERON: Yes, please.
PN169
THE COMMISSIONER: Any objection, Mr Tiley?
PN170
MR TILEY: Not in its own right. I don't think it can be Mr Plummer's evidence but it's going to be an exhibit because there's no cross-examination required of Mr Kennedy.
THE COMMISSIONER: That's right. So, we'll mark it as Exhibit A7.
EXHIBIT #A7 STATEMENT OF MR KENNEDY.
PN172
MR CAMERON: Mr Plummer, I take you to some further correspondence. Just take a moment to review that correspondence please?‑‑‑Yes, I'm aware of that email.
PN173
I see your name is listed on page 8 about halfway down the page?‑‑‑Yes, I requested Lewis to issue that email.
PN174
That email went to the subcontractors obviously?‑‑‑Yes, it did.
PN175
Commissioner, we'd like that marked as an exhibit.
PN176
MR TILEY: No objection.
*** MARK CAMERON PLUMMER XN MR CAMERON
THE COMMISSIONER: The email from Mr Biagini to David Clarke and subcontractors, and I assume Lendlease employees, of 5 May at 1.12 pm will be marked Exhibit A8.
EXHIBIT #A8 EMAIL FROM L. BIAGINI TO D. CLARKE, SUBCONTRACTORS AND LENDLEASE EMPLOYEES DATED 05/05/16 AT 1.12 PM.
PN178
MR CAMERON: If we could pass up further correspondence. Mr Plummer, could you take a moment to review that correspondence please. It's a statement by Mr Stewart?‑‑‑Yes, I'm aware of that statement.
PN179
To your knowledge, that statement is correct?‑‑‑Yes.
PN180
Commissioner, can we have that marked as - - -
PN181
THE COMMISSIONER: I don't think you can put that to the witness, Mr Cameron. He can only attest that he has seen this statement
PN182
MR TILEY: Commissioner, this statement falls into precisely the same category as Mr Kennedy. The witness is not required, it can be marked as an exhibit in its own right but not as the evidence of Mr Plummer, in my respectful submission.
THE COMMISSIONER: Yes, thank you, I agree Mr Tiley. The statement of Mr Stewart will be marked as Exhibit A9 and doesn't form part of the evidence of Mr Plummer.
EXHIBIT #A9 STATEMENT OF MR STEWART.
PN184
MR CAMERON: Further correspondence. This correspondence relates to the substitution of service. Mr Plummer, could you take a moment to review that correspondence please?‑‑‑Yes.
PN185
That is an email between Lendlease and the subcontractors?‑‑‑Yes, it is.
PN186
If I could hand up a copy of the notice of listing and the order for substituted service.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN187
THE COMMISSIONER: Mr Cameron, do you wish for this document to be admitted?
PN188
MR CAMERON: Yes, please Commissioner.
PN189
THE COMMISSIONER: Any objection, Mr Tiley?
PN190
MR TILEY: I thought we were still on the - the previous document was yet to be put in, Commissioner. I don't know if the notice of listing (indistinct) the attachment.
PN191
THE COMMISSIONER: The last admitted exhibit is Mr Stewart's witness statement. I've been handed up the communication from Lendlease to the subcontractors - - -
PN192
MR TILEY: There's no objection to that 12 page document going in.
THE COMMISSIONER: Thank you, that will be marked Exhibit A10.
EXHIBIT #A10 12 PAGE DOCUMENT.
PN194
So we're moving on to substituted service now, aren't we, Mr Cameron.
PN195
MR CAMERON: Yes.
PN196
THE COMMISSIONER: Mr Tiley, you indicated earlier that there's no general objection.
PN197
MR TILEY: It is for the applicant to prove, of course, but we don't intend to contest the proposition, service has been effected.
PN198
THE COMMISSIONER: What other documents do you have, Mr Cameron? It's not necessary, I would think, to - - -
PN199
MR CAMERON: Not much further, Commissioner.
PN200
THE COMMISSIONER: Not to admit the notice of listing and the order.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN201
MR CAMERON: It's simply for reference, Commissioner, in that they are referred to in that correspondence, if the witness needs to reference them. Commissioner, I do have confirmation of the email to the Lendlease direct employees and confirmation that it was also displayed on site. If I could hand that correspondence up to the witness?
PN202
THE COMMISSIONER: Yes, thank you.
PN203
MR CAMERON: The final document, Commissioner - - -
PN204
THE COMMISSIONER: Do you wish to put something to the witness with respect to this?
PN205
MR CAMERON: Mr Plummer, would you mind reviewing those two documents. One is the text message that went to the Lendlease employees. Are you aware that that occurred?‑‑‑Yes, I was the one that sent that text message.
PN206
Notices on site, have you seen those, the photographs?‑‑‑I've seen that photograph before, that's a photograph that Lewis sent me after I instructed him to install, or post, those orders on the noticeboard last night.
PN207
If we can have that marked as an exhibit?
PN208
MR TILEY: No objection.
THE COMMISSIONER: One document, that is the text message, sent at 6.22 pm yesterday, together with a photo of the listing on the noticeboard, be marked Exhibit A11.
EXHIBIT #A11 DOCUMENT OF TEXT MESSAGE SENT AT 6.22 PM 05/05/16, TOGETHER WITH PHOTOGRAPH OF LISTING ON NOTICEBOARD.
PN210
MR CAMERON: Commissioner, if I can hand up confirmation for the subcontractors that they have distributed being in accordance with the substituted service?
PN211
THE COMMISSIONER: Yes.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN212
MR CAMERON: Mr Plummer, could you take a moment to review those responses from the subcontractors?‑‑‑Mr Cameron, just one comment. You seem to have included the labour count for today in that - stapled that in that pack.
PN213
Thank you, Mr Plummer, I was madly looking for it. So, if we could first deal with the - - -?‑‑‑I'm still just going through that list, sorry. Yes, I've just been through that list, it appears they're all responding to the correspondence that Lewis sent last night. Unfortunately, I had not seen those before because I was in the car driving down this morning when I asked Lewis to forward them through to yourself.
PN214
But you understand that they - you've had time to review them?‑‑‑I just read the responses and, yes, they're confirming that a lot of the contractors have complied with the orders.
PN215
That is consistent with your processes and procedures?‑‑‑Yes, it is.
PN216
You've also referred to a labour count which was included in the bundle?‑‑‑Yes.
PN217
THE COMMISSIONER: Is that in your bundle Mr Tiley?
PN218
MR TILEY: Yes, it's in the middle.
PN219
THE COMMISSIONER: I have about five copies of it in the middle of mine.
PN220
MR CAMERON: Yes, Commissioner, that is a duplication, it is only one page.
PN221
MR TILEY: Five copies, I think, of the one page.
PN222
MR CAMERON: Mr Plummer, could you please take a moment to review that labour count?‑‑‑Yes, I'm aware of the labour count. That was prepared this morning based on the attendance records this morning of contractors on site.
PN223
Could we have those marked as a bundle, Commissioner, if there's no objection?
PN224
MR TILEY: No objection.
*** MARK CAMERON PLUMMER XN MR CAMERON
THE COMMISSIONER: They are marked A12.
EXHIBIT #A12 BUNDLE OF DOCUMENTS REFERRING TO LABOUR COUNT.
PN226
MR CAMERON: Mr Plummer, I'm going to hand up a series of letters, if you could walk us through them. Mr Plummer, if you could take a moment to review those letters please. Mr Plummer, the first one is an email to you?‑‑‑The first one?
PN227
The one on the top of the pile should be an email from - - -?‑‑‑Yes, it was sent to me.
PN228
That email was from the ETU, is that correct?‑‑‑It's got ETU address, yes.
PN229
What time is that; that is at 5 May at 12 - - -?‑‑‑At 2.11, 11 minutes past 2 pm.
PN230
Then the second document is marked 2.11 as well?‑‑‑It was me forwarding that - it was me forwarding it to yourself this morning but it came at 2.11 pm, so it's the same email.
PN231
Sorry, the first one are you referring to is the highlighted one?‑‑‑The one with highlights, yes.
PN232
Is that the first one you're referring to?‑‑‑Yes, the one with the highlighted bit, the bottom paragraph highlighted.
PN233
The one with the highlight is document 1. Document 2 is the letter that you forwarded to me this morning?‑‑‑Yes.
PN234
Document 3 is a retraction notice, is it not?‑‑‑Yes.
PN235
Document 4 is the amended letter?‑‑‑Yes.
PN236
Document 5 is a letter from the CFMEU?‑‑‑Correct.
PN237
Was that to you?‑‑‑I believe I've seen a copy of that, yes, I'm on the cc list on that.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN238
Are you familiar with those - - -?‑‑‑Yes, I am.
PN239
- - - four documents?‑‑‑Five documents.
PN240
Five documents?‑‑‑Yes, I am.
PN241
So you recognise all those letters?‑‑‑Yes, I do.
PN242
You understand them to be true and correct?‑‑‑I received them, yes.
PN243
In that you received them?‑‑‑Yes.
PN244
Could we have those marked as an exhibit please, Commissioner?
PN245
THE COMMISSIONER: Mr Tiley, you follow that there's five separate documents within - - -
PN246
MR TILEY: Commissioner, this is the matter that I alluded to before Mr Plummer commenced his evidence, as being one that had been resolved inter se. I know the documents but I don't have a bundle in the same form as you do and my friend does. I'm content for them to be admitted and marked now, and I don't need to cross-examine on them, but before we start our submissions I might ask for a short opportunity to obtain copies of them so that we're all working from the same bundle.
PN247
THE COMMISSIONER: Certainly. Mr Cameron, you haven't provided four copies, you only have three.
PN248
MR TILEY: I don't criticise my friend for that.
PN249
THE COMMISSIONER: Is that the issue?
PN250
MR CAMERON: The issue is that we had discussions prior and it was agreed that all four would go in. I didn't have a complete set of all four, so - - -
PN251
MR TILEY: It's just some late mail, Commissioner.
*** MARK CAMERON PLUMMER XN MR CAMERON
PN252
THE COMMISSIONER: Mr Tiley, during the break we can provide a copy to you. There are five documents within the one bundle, they'll be collectively marked as A13, and they are emails between Thursday 5 May 2.11 pm up to and including an email of this morning from Mr Plummer to Mr Cameron at 6.43 am.
PN253
MR TILEY: Perhaps, Commissioner, to assist in the submissions, when that bundle is assembled for your file and for the parties, things proceed a bit more clearly in chronological order within the bundle.
PN254
THE COMMISSIONER: We can mark them 13A, B, C, D and E, and refer to them in that manner Mr Cameron.
MR CAMERON: Yes, Commissioner.
EXHIBIT #A13 EMAIL EXCHANGES MARKED AS A, B, C, D, E.
PN256
If I can just have some direction, Commissioner. The last two documents I have for this witness is a decision and an order from the Fair Work Commission. Does he need to ascertain to that, or I can simply refer to it in my later submissions?
PN257
THE COMMISSIONER: What would the witness do with that, Mr Cameron?
PN258
MR CAMERON: Simply confirm that it related to his site.
PN259
THE COMMISSIONER: Yes, you can put that to the witness.
PN260
MR CAMERON: Mr Plummer, would you mind taking a moment to review those two documents please. One is entitled a decision and the other one is entitled an order?‑‑‑Yes, I'm aware of those two documents.
PN261
Would you mind confirming for the Commission that they relate to your particular project?‑‑‑Yes, they do.
PN262
Is it my understanding that that order ran out this week?‑‑‑It expired at 8.30 pm on 3 May, as noted on the second-last page of the order, which is this week, yes.
PN263
Could we have those marked as exhibit please, Commissioner?
*** MARK CAMERON PLUMMER XN MR CAMERON
PN264
THE COMMISSIONER: Any objection, Mr Tiley?
PN265
MR TILEY: Your Honour, it depends on the purpose for which they are tendered. Self-evidently, these proposed exhibits couldn't bear upon whether what is occurring is industrial action or is being organised. If, though, they are tendered for the purpose of assisting you in determining the form of any order that might be made, if you determine to make one, for that limited purpose there's no issue.
PN266
THE COMMISSIONER: I will admit these. I expect that the applicant will put something to me with respect to these.
PN267
MR TILEY: We can deal with it in submissions, Commissioner.
THE COMMISSIONER: Yes, and the witness has been helpful in evidencing that these relate to the same site. On that basis the decision of Senior Deputy President Richards of 22 March will be marked Exhibit A14.
EXHIBIT #A14 DECISION OF SENIOR DEPUTY PRESIDENT RICHARDS DATED 22/03/16.
The order of the same date will be marked A15.
EXHIBIT #A15 ORDER OF 22/03/16.
PN270
MR CAMERON: No further questions for this witness, Commissioner.
THE COMMISSIONER: Thank you, Mr Cameron.
CROSS-EXAMINATION BY MR TILEY [11.24 AM]
PN272
MR TILEY: Mr Plummer, you know Mr Kong of the CFMEU?‑‑‑I am aware of Mr Kong, yes.
PN273
Your understanding is that he is an official of the CFMEU with responsibility for your project?‑‑‑Yes, I am.
PN274
In that capacity the two of you have had dealings on numerous occasions?‑‑‑We've spoken, yes.
*** MARK CAMERON PLUMMER XXN MR TILEY
PN275
You're familiar, aren't you, with the evidence of Mr Clarke in this matter?‑‑‑Yes.
PN276
You're aware that Mr Clarke gives evidence that during the course of his interactions with Mr Ong yesterday - sorry, Mr Kong I beg your pardon - Mr Kong repeatedly answered his questions with "no comment"?‑‑‑I had a discussion with Mr Kong that - - -
PN277
I'm not asking about your discussion, I'm asking you about whether you're familiar with that evidence of Mr Clarke?‑‑‑No, I'm not familiar with that particular piece of correspondence, sorry.
PN278
Would it be fair to say you and Mr Kong don't always see eye to eye?‑‑‑We have differing views on some issues, yes.
PN279
It is not an irregular occurrence for Mr Kong to answer you with "no comment"?‑‑‑He's started doing that more recently of late, and it's usually only when there's an issue, major issue, on the site.
PN280
Yesterday was not the first occasion on which he provided you with that answer?‑‑‑No.
PN281
It didn't surprise you that he provided you with that answer?‑‑‑Well, it did.
PN282
In your evidence you say that Mr Kong - I am talking in fairness to you about paragraphs 27 and following?‑‑‑Sorry, 27?
PN283
And following?‑‑‑Yes.
PN284
That was a short exchange?‑‑‑A couple of minutes, yes.
PN285
In that short exchange of a couple of minutes Mr Kong said to you "no comment" at least four times, I put to you?‑‑‑Correct.
PN286
As he has done in the past. That's your evidence, isn't it?‑‑‑My evidence is he said "no comment" to these particular questions that I was asking him.
*** MARK CAMERON PLUMMER XXN MR TILEY
PN287
But your oral evidence a moment ago was that has regularly answered you, was it not?‑‑‑No, not regularly.
PN288
Previously?‑‑‑Previously.
PN289
Despite the fact that in the course of that short exchange he said "no comment" to you some four or more times, you then go on to attribute a very different comment to him in paragraph 33. You see that?‑‑‑Yes. Sorry, which paragraph?
PN290
The final sentence of paragraph 33?‑‑‑Yes.
PN291
A very different response to "no comment"?‑‑‑Yes.
PN292
I put it to you that he did not say to you words to the effect of "you know what you need to do to fix this" and he, instead, said words to the effect of "no comment"?‑‑‑No, I definitely heard those words.
PN293
Can I then take you, please, to Exhibit A4, if the witness might be shown that, Commissioner?‑‑‑I didn't number them, sorry.
PN294
THE COMMISSIONER: No, you didn't number them, that's okay. A4 is a single page, an email from Leigh Hughes to you?‑‑‑Yes, I've found that one.
PN295
At 8.30 am?‑‑‑Yes.
PN296
MR TILEY: Specifically, the first sentence of the second paragraph of that exhibit, Mr Plummer, can you have a read of that please?‑‑‑The "your employees" one?
PN297
Yes?‑‑‑Yes.
PN298
This is an official business record of Lendlease is it not?‑‑‑Yes.
PN299
In that business record Lendlease describes that which is occurring in relation to the Nielsen employees at the site as a demonstration. Is that correct?‑‑‑Yes, it is.
*** MARK CAMERON PLUMMER XXN MR TILEY
PN300
That is because that is exactly what it was, a demonstration?‑‑‑From Nielsen's employees?
PN301
Correct?‑‑‑Yes.
PN302
It hasn't, thus far at least, gone anywhere near being what one might fairly describe as a picket?‑‑‑Well, I would describe what I saw on yesterday morning as a picket.
PN303
But the official Lendlease business record uses a different term?‑‑‑A demonstration, yes.
PN304
MR CAMERON: Commissioner, that email is not from Mr Plummer.
PN305
THE COMMISSIONER: Mr Tiley is entitled to ask the witness the question.
PN306
MR CAMERON: I just wanted the witness to be clear that the email was not from him.
PN307
THE COMMISSIONER: I think he's clear, he understands that it's been sent to him from Mr Hughes.
PN308
MR TILEY: The witness has answered the question, Commissioner, there's no further questions as to A4. If I can just take you back to your statement, please Mr Plummer. I beg your pardon, sorry, Exhibit A8 please, Commissioner.
PN309
THE COMMISSIONER: Mr Plummer, A8 is - - -?‑‑‑I was numbering them by that.
PN310
You have it?‑‑‑Yes.
PN311
MR TILEY: It is 10 pages double-sided. The second-last page please, Mr Plummer, numbered 9 down the bottom?‑‑‑Yes.
PN312
An email commencing:
PN313
Good afternoon all. Further to my previous correspondences.
*** MARK CAMERON PLUMMER XXN MR TILEY
PN314
The second-last page?
PN315
MR TILEY: Yes?‑‑‑Or the third-last page.
PN316
It's the second-last on my bundle?‑‑‑Where it says, "Good morning all", yes.
PN317
I don't think we've got the same document, Mr Plummer?‑‑‑It says, "Good morning all."
PN318
Mine's a "Good afternoon" one. A8, page 9?‑‑‑Mine says, "Good morning all", sorry.
PN319
Does yours align with mine, Commissioner?
PN320
THE COMMISSIONER: It does, Mr Tiley. On page 9 of Exhibit A8 it's an email from Mr Biagini. It starts with, "Good afternoon all." Do you have the right document, Mr Plummer?‑‑‑I've got the one marked A8 but - - -
PN321
Do you have at the bottom number 9?‑‑‑Bottom number 9?
PN322
At the bottom?‑‑‑No, I don't. Okay, sorry. I was counting both - you're counting single pages, I was counting two pages, sorry. So, it's fourth page back from the back, is that what we're saying where it says, "Good afternoon all"?
PN323
MR TILEY: Yes, so if you just read up from "Good afternoon all", just to be clear. Mr Biagini's name is there as the sender?‑‑‑Yes.
PN324
The date is 5/5/16 1.12 pm?‑‑‑Correct.
PN325
The subject a few lines down is, "Important reports on abusive behaviour", et cetera?‑‑‑M'mm.
PN326
If you can just please read the first paragraph of that email for me to yourself?‑‑‑Yes.
*** MARK CAMERON PLUMMER XXN MR TILEY
PN327
Firstly, that email shows, doesn't it, that the CEPU[sic], known as the ETU, is playing a positive role in relation to the events of that demonstration at the project?‑‑‑Positive role, what do you mean by positive role?
PN328
The ETU has assisted Lendlease in securing an agreement about the conduct of that demonstration?‑‑‑I had a discussion with Peter Ong and he was in agreement on how the demonstration picket should persist and it would allow people to come in and out, if that's what you mean? So, yes.
PN329
But do you accept that by so doing the CEPU has played a positive role in relation to these events?‑‑‑I don't understand what you mean by positive.
PN330
It's clear from this business record of Lendlease that there is no physical impediment to access to the site; would you accept that?‑‑‑I would accept that the ETU agreed that they would not impede access to the site.
PN331
That is why, Mr Plummer, I put it to you, what is occurring is a demonstration rather than a picket?‑‑‑You're entitled to your opinion.
PN332
Do you accept that or not? You previously seemed to. I'm just giving you an opportunity to tell me whether you do or don't?‑‑‑A demonstration in my mind - a demonstration and a picket are very similar.
PN333
But in any event there's no impediment of access, you accept that?‑‑‑They were not impeding and stopping access onto the project, the ETU members.
PN334
Can we then take up your statement please, Mr Plummer. You refer in your statement - I think it's fair to say that your words, as you in your evidence just now suggested, to describe the demonstration was in your statement "picket". Do you recall putting that evidence in?‑‑‑Where did I say that, sorry?
PN335
You said in the former paragraph, 16 for example?‑‑‑I understand that that's been struck off my evidence.
PN336
It is. I'm asking you to confirm that your description of those events has been previously, including in your evidence today, picket. Is that your understanding of picket?‑‑‑That's my understanding.
*** MARK CAMERON PLUMMER XXN MR TILEY
PN337
If I can take you then to paragraph 22. In the first sentence you are there describing - sorry, I'll give you an opportunity to read that, to be fair to you?‑‑‑Yes, I've read it.
PN338
In that sentence you are relating what you spoke to Mr Ong about, not what he spoke to you about in that first sentence?‑‑‑Yes. So the first part of it I understood that - sorry.
PN339
For example?‑‑‑So I was saying that I understood - I was saying to Peter I understood that Nielsen employees were taking protected industrial action by picketing the gate, so that's what I said.
PN340
Yes, so, as it appears there picketing is your word, not Mr Ong's word?‑‑‑Correct.
PN341
Mr Ong, I put it to you, didn't say - didn't describe those events as a picket but, rather, as a protest?‑‑‑Mr Ong didn't describe it as anything, he acknowledged that we didn't want things to get out of hand.
PN342
No further questions of this witness, Commissioner.
PN343
THE COMMISSIONER: Thank you. Mr Cameron, anything arising?
MR CAMERON: Yes.
RE-EXAMINATION BY MR CAMERON [11.35 AM]
PN345
Mr Plummer, my colleague referred you to the agreement with the ETU - this is back in attachment A8?‑‑‑Whereabouts in A8?
PN346
Attachment A8?‑‑‑Yes, and where it says, "Good afternoon all"?
PN347
It says, "Good afternoon", and it refers - - -?‑‑‑Yes, agreement, yes, with the ETU, correct.
PN348
Was that a formal agreement?‑‑‑It was an exchange of words, which is what I articulated in my statement 22, that we didn't want things to get out of hand and we wanted to keep it - keep the guys safe, we didn't want it to end up in anyone getting hurt.
*** MARK CAMERON PLUMMER RXN MR CAMERON
PN349
Based on your knowledge of the events, do you think that agreement was honoured?‑‑‑I believe it was honoured by the ETU. We had a couple of reported people being turned away at the gates very early after that discussion. David Clarke spoke to Peter Ong to correct that behaviour. We sent people out to make sure that they were honouring that agreement and, during the course of the balance of the day and this morning, I've not had reports that they're not honouring that agreement.
PN350
So people can come and go?‑‑‑They will be approached by members of Nielsen's but they will be not physically prevented from entering the site, and that is what I witnessed yesterday and this morning, and that is what I witnessed Peter speaking to the Nielsen employees picketing, demonstrating, or congregating, however you want to describe it, at the gate.
PN351
No further questions for the witness.
THE COMMISSIONER: You're excused, Mr Plummer.
<THE WITNESS WITHDREW [11.38 AM]
PN353
MR TILEY: Commissioner, shall we deal now with the objections to Mr Clarke's evidence before he comes in?
PN354
THE COMMISSIONER: Yes, thank you.
PN355
MR TILEY: If you could please take up the schedule of objections. Commissioner, we've taken the liberty of numbering the bullet points in Mr Clarke's statement manually to assist in referring to them.
PN356
THE COMMISSIONER: Has that been rectified at all, Mr Cameron, or just Mr Clarke's statement today reflect the bullet points?
PN357
MR CAMERON: It reflects the bullet points.
PN358
THE COMMISSIONER: All right, thanks. Paragraph 9, Mr Tiley, is?
*** MARK CAMERON PLUMMER RXN MR CAMERON
PN359
MR TILEY: Paragraph 9, Commissioner, is the first paragraph on the second page. It is unsourced hearsay. I don't have any additional submissions to make beyond those that I made in relation to paragraphs 19 and 25 of Mr Plummer's statement, and I understand the your Honour would like to take with that.
PN360
THE COMMISSIONER: Yes. Mr Cameron?
PN361
MR CAMERON: He can make clarification with Mr Clarke when he's on the stand, Commissioner.
PN362
MR TILEY: Commissioner, it's not for me to improve the applicant's case.
PN363
THE COMMISSIONER: Mr Cameron, what Mr Tiley is saying is that Mr Clarke received a phone call and he's repeating whoever was on the other end of that phone call that Tony Kong had said that the meeting had been finished. So, the earlier ruling I made in relation to Mr Plummer's is that that was a hearsay conversation. So, I'd have to make the same ruling in relation to Mr Clarke's statement at paragraph 9. You're welcome to ask him who that conversation was with but at paragraph 9 it would be the same as the earlier paragraph, paragraphs 19 and 25, of Mr Plummer's statement.
PN364
MR CAMERON: I will seek Mr Clarke's clarification.
PN365
THE COMMISSIONER: I'm going to rule it inadmissible. You might do something with Mr Plummer's paragraphs 19 and 25 because it was Mr Clarke who was identified on the phone, but here this can't be remedied. So paragraph 9 will not have any weight.
PN366
MR TILEY: If the Commission pleases. The final objections are to paragraph 14. They fall into perhaps two categories, and I'll just give you a moment to read the paragraph, please Commissioner.
PN367
THE COMMISSIONER: Yes, thank you, Mr Tiley.
PN368
MR TILEY: Commissioner, the evidence in that paragraph - perhaps the word "evidence" is being kind to it - but the paragraph purports to give evidence of reports from people in - in the first half of the paragraph - two different classes. But a class is not an adequate source for hearsay to render it first person hearsay, it remains unsourced hearsay, and the usual difficulties with a piece of evidence that is put in on a hearsay basis without a source, to which I referred earlier, arise. We simply don't know who it is nor can we test it.
PN369
THE COMMISSIONER: What do you say about the first part? Let's break this up. Mr Clarke will be able to be asked in chief who told him that the picket line were turning cars away. So that can be addressed in chief. But the issue of the person who was present at the CFMEU meeting and reporting what Mr Kong said that has some difficulties. Do you agree?
PN370
MR TILEY: Yes, Commissioner. Mr Clarke is able to rectify the first half of the paragraph if he is able to.
PN371
THE COMMISSIONER: Yes.
PN372
MR TILEY: If he can identify a source then the objection falls away. There is still an issue as to weight, but customarily in this Tribunal evidence of that kind would be admitted, and we don't press the objection if a source is given for that first half. The second part of the paragraph is more problematic because my friend's instructions are that Mr Clarke does not know the identity of the maker of the representation. It is unsourced, it cannot be sourced, and it is highly prejudicial.
PN373
THE COMMISSIONER: Mr Cameron is entitled to put to Mr Clarke does he know the identity of the wages worker on site. That's what he's entitled to put. My view is that the last sentence will constitute hearsay with, "He stated that Tony Kong" that would constitute hearsay and that would not be admitted. I mean he can still attest to that he had a conversation with a wages worker on site, he can attempt to identify that person.
PN374
MR TILEY: So the two sentences of - if we look at the words from "stopped by a wages worker on site" onwards. If Mr Clarke can give us a source, and identify the source, then Mr Cameron can have the first sentence that follows. Under no circumstance can he have the second sentence because it's inadmissible hearsay.
PN375
THE COMMISSIONER: Which sentence are you referring to?
PN376
MR TILEY: He stated that Tony Kong had instructed, et cetera.
PN377
THE COMMISSIONER: I agree with you, Mr Tiley.
PN378
MR TILEY: Okay. Now, I'm trying to short circuit this, Commissioner, because it is accepted that he doesn't know who it was. There's no suggestion of - - -
PN379
THE COMMISSIONER: That's agreed between the parties, is it?
PN380
MR TILEY: That's what I've been told.
PN381
MR CAMERON: If the Commission please, he knows it was a worker on the site. He knows that it was a worker who attended the meeting. He knows that it is a CFMEU worker, but there a thousand workers on the site, so he does not know the gentleman's name.
PN382
MR TILEY: Commissioner, if the second sentence is in any event going to be struck out, then we don't need to press the balance of the objection.
PN383
THE COMMISSIONER: All right. The last sentence will not be admitted and, otherwise, you're comfortable with the remainder of the paragraph, are you?
PN384
MR TILEY: Save for the need for Mr Cameron to endeavour to put a source on each of those parts of the paragraph, both the Lendlease staff and the AE Smith staff and the wages worker, but the real concern in that paragraph and the prejudice is in the final sentence.
PN385
THE COMMISSIONER: Okay. All right. I'm ruling that that is not to be admitted and, Mr Cameron, you can certainly put to the witness an attempt to identify those relevant individuals.
PN386
MR TILEY: Thank you, Commissioner.
PN387
THE COMMISSIONER: Thank you.
PN388
MR CAMERON: Commissioner, I call David Clark.
PN389
THE ASSOCIATE: Please state your full name and address.
MR CLARK: David Scott Clark, (address supplied).
<DAVID SCOTT CLARK, AFFIRMED [11.47 AM]
EXAMINATION-IN-CHIEF BY MR CAMERON [11.47 AM]
PN391
MR CAMERON: Commissioner, could I ask that his home address be redacted, please.
*** DAVID SCOTT CLARK XN MR CAMERON
PN392
THE COMMISSIONER: Yes, that will occur.
PN393
MR CAMERON: I have a copy of the witness's statement to hand up.
PN394
Mr Clark, could you please state your occupation and employer?‑‑‑Site manager, Lendlease Building.
PN395
Could you take a moment to review your statement, please. Any alterations or additions?‑‑‑No.
PN396
Mr Clark, if I could take you to - dot point 14, we're referring to it as. It is the bottom of page 2. Would you mind taking a moment just to review that dot point. It starts with, 7.40 am"?‑‑‑Yes.
PN397
For the purposes of the Commission, are you able to identify the Lendlease staff that you had a discussion with, in line 1?‑‑‑Two ladies from our office.
PN398
The last names?‑‑‑No, I can't recall.
PN399
First names?‑‑‑No.
PN400
The AE Smith staff?‑‑‑It was Tony, the site manager. Sorry, I can't remember his last name off the top of my head.
PN401
Further down the paragraph you refer to a construction worker?‑‑‑Yes.
PN402
I understand there are a thousand workers on the site. Are you able to clarify to any extent who that person is, either by occupation or class or any other identifying factors?‑‑‑He is a carpenter on site.
PN403
So you know him to be a site worker?‑‑‑Yes.
PN404
However, you do not know his name?‑‑‑Not his - I know him by his nickname, but not his name.
PN405
You know him as his occupation?‑‑‑Yes.
*** DAVID SCOTT CLARK XN MR CAMERON
PN406
And his trade?‑‑‑Yes.
PN407
Has he been a worker on site for some months or - - -?‑‑‑Yes, he has.
PN408
So you know him as a site worker. You know him as a carpenter?‑‑‑Yes.
PN409
You do not know his name?‑‑‑No.
PN410
Do you know that he attended that meeting?
PN411
MR TILEY: How could the witness know that?
PN412
MR CAMERON: He may have observed it?‑‑‑No.
PN413
THE COMMISSIONER: Mr Cameron, you have got the evidence of the witness.
PN414
MR CAMERON: Yes.
PN415
THE COMMISSIONER: The carpenter asked if the site was open.
PN416
MR CAMERON: Yes.
PN417
THE COMMISSIONER: And Mr Clark's evidence is that he told him it was.
PN418
MR CAMERON: Yes, Commissioner.
PN419
THE COMMISSIONER: That this carpenter said he had attended the CFMEU meeting, which was run by Mr Kong. That's as far as your evidence reaches.
PN420
MR CAMERON: Thank you, Commissioner. If I could hand up a map, picture, diagram - - -
PN421
THE COMMISSIONER: I'll have you instruct the witness that paragraphs 9 and 14 have been amended, thank you.
*** DAVID SCOTT CLARK XN MR CAMERON
PN422
MR CAMERON: Mr Clark, I should advise you that paragraph 9 - the remainder of that paragraph which starts with - sorry, paragraph 9 starts with 706 at the top of the page. That paragraph has been removed from your evidence based on hearsay. Paragraph 14, which is the paragraph we were just dealing with, the bottom part of that paragraph has also been removed as it deals with hearsay, starting at "We."
PN423
THE COMMISSIONER: The last sentence, Mr Clark, "He stated that Tony King - - -"
PN424
MR CAMERON: "He stated", sorry?‑‑‑Okay.
PN425
THE COMMISSIONER: That's not admissible?‑‑‑Yes.
PN426
MR CAMERON: Commissioner, could we have that marked as an exhibit?
PN427
THE COMMISSIONER: Any objection, Mr Tiley?
PN428
MR TILEY: Well, Commissioner, the witness still hasn't satisfactorily identified a source for the hearsay. In my respectful submission, the whole of paragraph 14 should be struck out. There is no precision at all about the identification of any of the three sources.
PN429
THE COMMISSIONER: Well, I don't consider them to be hearsay. I take the weight that he can't identify the individuals. With respect to the office staff and Mr Smith, I don't consider that - - -
PN430
MR TILEY: The witness is saying what he was told by, for example, Lendlease office staff, but the witness can't tell us who they were?‑‑‑They were receptionists.
PN431
I'm addressing the Commissioner?‑‑‑Yes.
PN432
There is, in my respectful submission, insufficient identification of the source so as to render it admissible. If the Commission is of a mind to admit it subject to weight, then very well.
PN433
THE COMMISSIONER: I will, Mr Tiley. I'll admit it subject to weight.
*** DAVID SCOTT CLARK XN MR CAMERON
PN434
MR TILEY: As the Commission pleases.
PN435
THE COMMISSIONER: Thank you. You wish for this to be admitted - - -
PN436
MR CAMERON: Marked as an exhibit.
THE COMMISSIONER: Okay. It will be marked exhibit A16.
EXHIBIT #A16 WITNESS STATEMENT OF DAVID CLARK
PN438
MR CAMERON: Commissioner, if I could take the witness to an exhibit?‑‑‑Thank you.
PN439
Mr Clark, could you take a moment to review that detailed photograph of the site, which includes a number of labels. Was this created under your direction?‑‑‑Yes, it was.
PN440
Could you please identify for the court where the carpark is?‑‑‑It's labelled P1.
PN441
P1. That's the primary carpark for the project?‑‑‑Yes, it is.
PN442
That's where the workers park?‑‑‑Yes, they do.
PN443
What is the arrow before the carpark?‑‑‑That says, "P1 entry, picket line."
PN444
So there was a picket line prior to the carpark?‑‑‑Yes.
PN445
Mr Clark, where are the toilets on here?‑‑‑There are several toilets on site. There are toilets down the Lendlease site office, also in around the site canteen area.
PN446
Sorry, where is that?‑‑‑Down the bottom left‑hand corner of the page.
PN447
That's within the site?‑‑‑Yes.
*** DAVID SCOTT CLARK XN MR CAMERON
PN448
That's the canteen?‑‑‑The canteen area is within the site. The Lendlease site office and the toilets adjoining those are in the visitor area. The non‑secure area, if you like, for lack of a better word.
PN449
The persons either picketing or demonstrating, are they using the toilets in the canteen?‑‑‑I couldn't tell you. I haven't witnessed them using them.
PN450
The carpark?‑‑‑I don't know. I haven't seen any of the picketers park in there personally.
PN451
But they are the only amenities available?‑‑‑Yes. Down the corner, yes.
PN452
If we could have that marked as an exhibit, please, Commissioner.
PN453
THE COMMISSIONER: Yes. Any objection, Mr Tiley?
PN454
MR TILEY: No, Commissioner.
THE COMMISSIONER: Marked as exhibit A17.
EXHIBIT #A17 LABELLED PHOTOGRAPH OF SITE
PN456
MR CAMERON: Commissioner, if we could have the witness shown the statement of Mr Plummer.
PN457
THE COMMISSIONER: Exhibit A1.
PN458
MR CAMERON: I believe so, Commissioner.
PN459
Do you have a copy of that statement in front of you?‑‑‑No, I don't, sorry.
PN460
I have a copy of his statement to hand up?‑‑‑Thank you.
PN461
Mr Clark, I need to advise you that paragraph 16 has been removed from his evidence and I'd like to take you to, first, paragraph 19. Mr Plummer, in his evidence which - - -
*** DAVID SCOTT CLARK XN MR CAMERON
PN462
MR TILEY: I object, Commissioner. By showing Mr Plummer's evidence to this witness he is leading this witness as to the evidence he might give about those matters. He need to ask him independently of this document if he wants to try and elicit evidence of a similar kind.
PN463
THE COMMISSIONER: Yes, I can't recall what words you started the sentence with, Mr Cameron. What are you asking the witness?
PN464
MR CAMERON: Simply, if he advised Mr Plummer.
PN465
MR TILEY: There he leads him again.
PN466
THE COMMISSIONER: Which paragraph are you at?
PN467
MR CAMERON: 19.
PN468
THE COMMISSIONER: You might ask him if he recalls a conversation that he had with Mr Plummer.
PN469
MR CAMERON: Yes, Commissioner.
PN470
Mr Clark, do you recall a conversation with Mr Plummer?‑‑‑Yes.
PN471
Do you recall the content of that conversation?‑‑‑Throughout the morning I notified Mr Plummer of the proceedings as they unfolded. Seeing as I'm the site manager I've got all the main contacts, so as people notify me and as I witness things I would bring - or talk to Mark directly.
PN472
You kept Mr Plummer fully informed?‑‑‑Yes.
PN473
Mr Clark, if we could move on to paragraph 25.
PN474
MR TILEY: Same objection, Commissioner. He shouldn't have the statement in front of him if he is being asked about these matters, it leads the witness.
PN475
MR CAMERON: It is a document in evidence.
*** DAVID SCOTT CLARK XN MR CAMERON
PN476
MR TILEY: It is not. That paragraph has been removed. I'm sorry, Commissioner, I will make my comments through the record.
PN477
The paragraphs to which my friend wishes to refer Mr Clark do not exist; they are not in evidence. If he wishes to ask the witness about the matters that were formally the subject of those paragraphs he is well entitled to do so but he cannot do so with the former evidence of Mr Plummer in front of him, otherwise it leads the witness as to the conclusion to the question which cannot be done in chief.
PN478
THE COMMISSIONER: Yes, there is no benefit in having Mr Plummer's statement before Mr Clark.
PN479
MR CAMERON: Yes, if we could have that removed.
PN480
THE COMMISSIONER: Yes, thank you.
PN481
MR CAMERON: Mr Clark, if you could recall - you gave evidence that you kept Mr Plummer advised?‑‑‑Yes.
PN482
You kept him advised of activities throughout the morning?‑‑‑Yes.
PN483
Did those activities include a number of meetings?‑‑‑Yes.
PN484
And for clarity, were those meetings on site or off site?‑‑‑Off site.
PN485
Could you actually tell the Commission what you observed at those meetings?‑‑‑In the morning I observed the ETU meeting with their employees as per the previous map outside the site, I could see that from our site office. Then the CFMEU meeting over at their meeting point, as depicted on the map.
PN486
Mr Clark, you have referred to the map. These points on the map where you say "Gate 6" and "protest", is it?‑‑‑Personnel gate 2.
PN487
You have observed all these labels or what they are depicting?‑‑‑Yes.
No further questions, Commissioner.
*** DAVID SCOTT CLARK XN MR CAMERON
CROSS-EXAMINATION BY MR TILEY [12.04 PM]
PN489
MR TILEY: Thank you, Mr Clark. Can the witness please be shown exhibit A4.
PN490
THE COMMISSIONER: Mr Cameron, do you have a spare copy of that? It was before Mr Plummer.
PN491
THE WITNESS: Thank you.
PN492
MR TILEY: Just have a read of that, please, Mr Clark?‑‑‑Yes.
PN493
So that is an official communication sent by an employee of Lendlease Building, your employer?‑‑‑Yes.
PN494
In that sense it is a business record of Lendlease, would you accept that?‑‑‑Yes.
PN495
In that business record of Lendlease the conduct of the Nielsen employees who are taking protected action is described as a demonstration, can you see that?‑‑‑Yes.
PN496
In fairness to you, it doesn't mention the Nielsen employees there, but your understanding is that that who the demonstrators are?‑‑‑I didn't receive this.
PN497
Put the document to one side for a moment. You would accept, wouldn't you, that the proper characterisation of the conduct of those individual is a demonstration rather than a picket?‑‑‑No, I believed it to be a picket from what I witnessed yesterday.
PN498
But those in attendance there are not - for example - linked arms, locking access and egress?‑‑‑No, they're not.
PN499
And there is access and egress to and from the site, correct?‑‑‑Yes, there is.
PN500
And there is, as you are aware, an agreement in place between the CEPU and Lendlease about the manner in which those individuals will conduct themselves?‑‑‑Yes, we discussed that.
*** DAVID SCOTT CLARK XXN MR TILEY
PN501
Would you accept that the making and holding to that agreement by those individuals has been positive from the perspective of Lendlease?‑‑‑Yes.
PN502
And that the CEPU and Mr Ong were instrumental in that agreement?‑‑‑Yes.
PN503
Can you please take up your statement and I'll take you first to the final bullet point on the first page?‑‑‑Yes.
PN504
You say there "We told him that they're picket lines"?‑‑‑Yes.
PN505
And those are your words there, are they not?‑‑‑Yes.
PN506
Elsewhere in your statement - I think in paragraph 15 on the third page?‑‑‑Yes.
PN507
You recall a conversation with Peter Ong?‑‑‑Yes.
PN508
And "picket", "picket line" and "picketers" are all your words as they appear in that paragraph?‑‑‑Yes.
PN509
At no time during any of the events depicted in your statement did Mr Ong use the words "picket", "picketing" or "picket line" but rather he described them as "protesters", would you accept that?‑‑‑I don't recall that.
PN510
But it could have been the case?‑‑‑I don't recall it, sorry.
PN511
So you don't recall what word Mr Ong used to describe that assembly?‑‑‑Not on the day. There was a lot happening yesterday.
PN512
If you don't recall you couldn't be certain that what he said was "picket line" or "picketers", is that correct?‑‑‑I state there that I call them "picket lines".
PN513
That's right, your words, correct?‑‑‑Yes.
PN514
Moving on: you know Mr Kong of the CFMEU?‑‑‑Yes, I do.
*** DAVID SCOTT CLARK XXN MR TILEY
PN515
And you are aware that he is an employee of the CFMEU who has responsibility for your project?‑‑‑Yes.
PN516
And you have dealt with him in that capacity?‑‑‑Yes.
PN517
Regularly?‑‑‑Yes.
PN518
Would it be fair to say - and I don't criticise you in this sense - but you haven't always seen eye to eye with Mr Kong?‑‑‑I find Tony Kong fine to deal with but - - -
PN519
I'm sorry, I beg your pardon, carry on?‑‑‑And we've got a very amicable relationship.
PN520
From time to time though there has been disputation between the workers and their employers?‑‑‑Which situation are you referring to, sorry?
PN521
I withdraw that. Mr Kong has previously answered inquisitive questions from you with the words "No comment", is that correct?‑‑‑Yes.
PN522
You say in your statement - in fairness to you, I draw your attention to paragraph 13 - that Mr Kong responded with "No comment. No comment" continuously, correct?‑‑‑Yes.
PN523
How many times do you think Mr Kong would have said that to you in that conversation?‑‑‑I can't give you an exact number.
PN524
At least two?‑‑‑At least two, yes.
PN525
And that was during a short conversation of, what, two minutes?‑‑‑I couldn't give you a timeframe, I'm sorry.
PN526
What I put to you, Mr Clark, is that the comment you attribute to Mr Kong in the second last line was not something that he said to you on that occasion and what he in fact said to you throughout the conversation was "No comment"?‑‑‑What are you referring to?
*** DAVID SCOTT CLARK XXN MR TILEY
PN527
You say that Mr Kong said to you "You know what you need to do to fix this situation". I put it to you that - - -?‑‑‑No, sorry, he didn't say that to me, I witnessed him saying that to Mark Plummer. It's what my statement says.
PN528
You're quite right. Do you accept though that Mr Kong didn't say that to Mr Plummer, what he in fact said to Mr Plummer was "No comment"?‑‑‑No, I definitely heard him say words to that effect.
PN529
You gave some evidence-in-chief - you will recall giving some evidence that you witnessed a meeting yesterday I think of the members of one of the unions from the site office?‑‑‑Yes, that's right.
PN530
So the site office is how far from where the meeting was taking place?‑‑‑Approximately 50 metres.
PN531
You were inside the site office, were you?‑‑‑Yes.
PN532
So you could see the meeting but you could not hear the meeting?‑‑‑That's right.
PN533
And as such there is no attempt by you, is there, to give any evidence as to what occurred at the meeting first hand?‑‑‑That's right.
No further questions, Commissioner.
RE-EXAMINATION BY MR CAMERON [12.20 PM]
PN535
MR CAMERON: Mr Clark, you have articulated that during your conversation with Mr Ong that you used the term "picket" several times?‑‑‑Yes.
PN536
Did he correct you at any time?‑‑‑Not that I recall.
PN537
No further questions.
PN538
THE COMMISSIONER: Mr Clark, I have some questions. Mr Tiley has put to you that in your conversations with Mr Ong that he didn't use the word "picketing". Have a look at the last bullet point on your first page, there is a conversation that you attribute to Mr Ong and it is halfway through that paragraph:
*** DAVID SCOTT CLARK RXN MR CAMERON
PN539
He agreed and said that the Nielson's employees would explain to traffic and personnel coming on to site why they were picketing and asked that they observe the picket.
PN540
?‑‑‑Yes.
PN541
Is that correct or is Mr Tiley correct in saying that Mr Ong said something different to you?‑‑‑No, we had the discussion about the - when we had a discussion there was Mark, Peter Ong and myself and we went out there to talk about - and walk around and make sure that the picket lines are in an orderly fashion and that there wouldn't be any obstruction or stopping of traffic and he agreed that that would be the case. He also spoke about that when any trucks or personnel come to site that his members would stop them and explain to them why they were there and what they were doing.
PN542
Did he use the word "picket" or "picketing"?‑‑‑I can't be 100 per cent on that, sorry, Commissioner.
PN543
Then the last paragraph in your statement?‑‑‑Yes.
PN544
The last sentence, "He agreed and said he would call them in on the picket"?‑‑‑Yes.
PN545
How certain are you that he used the word "picket" or you can't be sure?‑‑‑He said he'd call the men on that car park - on the picket line - I can't be 100 per cent sure. I used the word "picket" to him saying that on that picket line the people had been turned around, the cars had been turned around and the female staff and in the site office and he needed to call them, which he agreed to do.
PN546
Anything arising, Mr Tiley?
MR TILEY: Yes, Commissioner.
FURTHER CROSS-EXAMINATION BY MR TILEY [12.16 PM]
*** DAVID SCOTT CLARK FXXN MR TILEY
PN548
MR TILEY: If we can just put to one side the characterisation of it, whether it was a picket or something else, for the moment, the agreement that you I think accepted in cross-examination had been made and was a positive thing with the ETU about the conduct of their members on the picket, that is the agreement you refer to, is it not, in the final paragraph on page 1?‑‑‑It's an understanding of how the behaviour was to be and ensure the safety and conduct of people coming on and off the site. I don't think it needs to be - I disagree with the word that we have agreed on that as a process.
PN549
Let me put a proposition to you - from exhibit A8, Commissioner, to be fair to the witness - it is a Lendlease business record:
PN550
Lendlease has had discussions with the ETU and has got agreement from the ETU that none of their members including employees of Nielsen currently under protected industrial action will impede access to the site nor will they try to intimidate or bully any person trying to get access to the site.
PN551
Do you accept that that is such an agreement that has been made?‑‑‑We walked around with Peter Ong and we witnessed him explain to his members what the conduct was to be to ensure that.
PN552
The question is: do you or don't you accept the characterisation that has been applied to that by your employer in its business record?‑‑‑Sorry, I don't understand your question.
PN553
Have you got exhibit A8 there?‑‑‑No.
PN554
THE COMMISSIONER: Mr Cameron, could that be shown to Mr Clark, please. I know that Mr Plummer had a copy.
PN555
THE WITNESS: Thank you.
PN556
MR TILEY: It is page 9, towards the back of the bundle, Mr Clark?‑‑‑Yes.
PN557
Do you accept that what is set out in the first paragraph there is true and correct?‑‑‑Yes.
PN558
And it is that agreement that you refer to in the final paragraph of the first page of your statement?‑‑‑Yes.
PN559
And the final paragraph of the statement on page 3?‑‑‑The word "agreement", I mean we went out there with Peter Ong to make sure that the picket line was conducted in an orderly fashion. I'm sure that there was no intimidation of bullying and access wasn't impeded.
*** DAVID SCOTT CLARK FXXN MR TILEY
PN560
Putting to one side the word "agreement", I accept you have got some difficulty with that?‑‑‑No, no, I'm just explaining to you what happened. This is my statement, that's what happened yesterday.
PN561
But you don't dispute that there is a meeting of the minds between Lendlease and the CEPU about how that will occur?‑‑‑We walked out with Peter Ong and Mark Plummer and I asked that - we actually explained to Peter that we were going to go around and address each of the pickets at each of the gates.
PN562
Mr Clark, I'm not asking you about what occurred, I'm asking you about the effect of what occurred?‑‑‑I don't understand.
PN563
What was the outcome of the discussion that occurred as you walked around the site?‑‑‑Mr Plummer and I walked around with him and he explained to each of the picket lines how they were to run and how they were to hold themselves.
PN564
Do you accept that the outcome of that discussion is that which is recorded in the first paragraph of the exhibit?‑‑‑Yes.
Thank you, no further questions.
FURTHER RE-EXAMINATION BY MR CAMERON [12.20 PM]
PN566
MR CAMERON: Mr Clark, in your view, was there a formal agreement or not?‑‑‑Walking around with Peter Ong?
PN567
Was there some formal Lendlease approval for Mr Ong to conduct his activities?‑‑‑No. So, again, Mark Plummer and I walked out to walk around to address the picket lines on the gates to ensure that they were being conducted - - -
PN568
Orderly conduct?‑‑‑Orderly conduct. Peter Ong agreed to walk with us and ask that he address his picket line, he didn't want Mark Plummer and I addressing them. Mark Plummer and I told him that we would walk with him to ensure that he did convey that message that we wanted him to convey.
PN569
In your evidence you have just given again now, you referred to he asked if he could go with you to address his picket line?‑‑‑He didn't want Mark Plummer and I addressing his picket line, so the agreement I'm referring to there was he agreed to walk with Mark Plummer and I around the site to the gates because he wanted to address his members, he didn't want Mark and I to address the members.
*** DAVID SCOTT CLARK FRXN MR CAMERON
PN570
And several times you have referred to that as a "picket line"?‑‑‑Yes.
PN571
Did he correct you?‑‑‑No.
PN572
Based on the balance of probabilities, do you think that he used the word "picket line"?
PN573
MR TILEY: Objection.
PN574
THE COMMISSIONER: You just need to put to the witness "Did Mr Ong use the word "picket line" and I have already asked that question of the witness and he has answered that he cannot be sure, he thinks more than likely he did not use the word "picket", so he has already given me the answer.
PN575
MR TILEY: Can I ask the question, Commissioner?
PN576
THE COMMISSIONER: He has already given me the answer. I don't think you putting it is going to change his answer.
PN577
MR TILEY: Yes, Commissioner.
PN578
THE WITNESS: So, the agreement referred to there was the agreement to walk around and address the workers, there's no agreement to a picket line whatsoever.
PN579
MR TILEY: No further questions, Commissioner.
THE COMMISSIONER: You may be excused, Mr Clark?‑‑‑Thank you.
<THE WITNESS WITHDREW [12.23 PM]
PN581
Do the parties require a short adjournment?
PN582
MR CAMERON: Yes, please, Commissioner.
*** DAVID SCOTT CLARK FRXN MR CAMERON
PN583
MR TILEY: Commissioner, could I enquire of your associate perhaps, through you, that your associate provide the bundle of the exhibit numbered 13A to E to our side of the record prior to the commencement of the submissions?
PN584
THE COMMISSIONER: How long do the parties need?
PN585
MR TILEY: We are ready to proceed, Commissioner.
PN586
THE COMMISSIONER: We will just have a five-minute adjournment.
PN587
MR CAMERON: Commissioner, could we have longer, please.
PN588
THE COMMISSIONER: How long do you need then, Mr Cameron?
PN589
MR CAMERON: 15 minutes, Commissioner.
PN590
THE COMMISSIONER: All right. That takes us to about 25 to one. Can the parties last out through to about 2 o'clock, say, before a lunch break?
PN591
MR CAMERON: I don't think we will go that long, Commissioner.
PN592
THE COMMISSIONER: In case we do, is there anybody that would require lunch before, say, 2 o'clock?
PN593
MR TILEY: Commissioner, we are content to proceed without lunch and for our part we would hope to be able to make the majority of our submissions to you in writing and only address orally very shortly on those.
PN594
THE COMMISSIONER: I propose to hear all the material today.
PN595
MR TILEY: I understand that, Commissioner. We will be in a position to provide you with written submissions when we resume.
PN596
THE COMMISSIONER: Yes, all right. We will have a short adjournment for 15 minutes and return at, say, 20 to one.
SHORT ADJOURNMENT [12.24 PM]
RESUMED [12.46 PM]
PN597
THE COMMISSIONER: Mr Cameron.
PN598
MR CAMERON: Thank you, Commissioner. We don't have any more witnesses, so we're ready to proceed to final closing submissions. My colleague may have a witness.
PN599
MR TILEY: No.
PN600
THE COMMISSIONER: No. All right, I'll hear your closing submissions, thanks, Mr Cameron.
PN601
MR CAMERON: Thank you, Commissioner.
PN602
Commissioner, before you, you have an application for a 418 order against the project. The order seeks to bind the CFMEU and the ETU. The order seeks to identify some industrial activity by the CFMEU and the ETU, that is:
PN603
The practice of attending for work but not performing any work, a limitation or a restriction on the work, or the performance of work or a person in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to the work which is a restriction or a limitation on that work.
PN604
So we are leading evidence today that the two unions have actively engaged in organising this industrial action that the site currently, and allegedly I should say, is undertaking.
PN605
Now, we have heard evidence today, A12, in relation to the numbers on site. Okay? So this site normally has around 994 workers on site. Yesterday it dropped to 400 workers and today it's dropped to 147 workers. Now, taking a big picture view, that certainly does not sound like work that is done in the normal practice on that particular project which normally, as I said, has 900 workers.
PN606
Commissioner, we have tabled today previous behaviour in relation to this particular site and we'll refer the Commission to the decision of Senior Deputy President Richards, which was handed up, and particularly to paragraph 44, where His Honour refers to "seven previous applications in relation to this particular project, four of which are", including the decision that I'm reading, "resulted in orders against workers on this particular project." So that was three previously plus the one that His Honour decided.
PN607
So we clearly argue that this site has an ongoing significant prolonged instability of industrial action on this particular project, which is a significant project. A $1.6 billion project for the State of Queensland.
PN608
Now we are seeking orders today to take the project to its conclusion on 12 August. If I'm correct.
PN609
So that is what we are seeking, Commissioner. And we make reference to a few of the evidence that has been before you today.
PN610
Today we have sought evidence or heard evidence, and first I'd like to refer to A1, which is the statement of Mr Plummer, and the statement of Mr Plummer clearly articulates the complexity of the particular project and the size and nature and scope of that project. It clearly indicates that he has a number of direct employees. We have also heard evidence today that those employees were directed to return to work and those employees received text messages that they were directed to return to work. It also articulates there are a number of subcontractors on the site, and we have heard evidence today and seen evidence today that those subcontractors were directed by their employers to return to work and that the site was open and the site was safe.
PN611
Mr Plummer's statement also goes on to articulate that, as I said, the site was open and that he had a conversation with Mr Ong on how Mr Ong's activities would be managed in relation to the project, to ensure that the project was open and to ensure that people could go about their normal business.
PN612
We've also seen evidence today in Mr Plummer's statement, at 33, that there was a comment made by the CFMEU in relation to "You know what you need to do to fix this".
PN613
Now clearly from Mr Plummer's statement, he had no idea what that meant. But it sounds like, we would say, a suggestion by the union that there could be more activity coming and that "You know what you need to fix it and if you don't, you'll get more of this" is the implication.
PN614
We then go on to re-affirm yet again that the site was open and that the workers were texted by their employers or by Lendlease to its direct employees, to return to work. At this stage the site had reduced from a thousand workers, approximately, to 400 workers.
PN615
Commissioner, we have seen evidence today from Mr Clarke. And Mr Clarke's statement, at dot point 3, clearly indicates that there was a meeting run by Mr Kong. And that that was organised, we say, by Mr Kong and that meeting was organised off site. Now, off site means outside the gate. I think we're all pretty clear on that.
PN616
The last part of that paragraph clearly indicates that the workers, being Lendlease and CWs, were on site and they left site to go and attend that meeting. So I think that's important to clarify.
PN617
Next we have evidence there, at dot point 3, that he witnessed an ETU meeting. So we've now got the ETU meeting. And that, again, was off site.
PN618
Then we go down to the next dot point where we go, at 6.24 pm:
PN619
I called Andrew Stewart, Lendlease General Foreman, who looks after the Lendlease employees, and instructed him to notify Lendlease employees that they should return to work."
PN620
And then that resulted in the text messages that we know about.
PN621
We then go down and we see at 6.36 pm that Mr Kong could be seen commencing a meeting with the CFMEU. Another meeting that Mr Kong organised. And that those workers, largely, or some of them at least, from the evidence given, left site to attend Mr Kong's meeting. We argue that that was organising by Mr Kong.
PN622
Mr Ong, in the last paragraph there, clearly undertakes that there will be a Queensberry Rules or arrangements in relation to, practically, that people are not going to be obstructed and people can come in and out subject to Mr Ong's activities.
PN623
We then go over, and we have articulated here at the first paragraph, first dot point on that second page which is in evidence, which is at 7.08 am, the indication there that he had a phone call and that the CWs did not cross - did not want to cross the picket line and were leaving the site. And then we go down to, he witnessed the members driving out. CFMEU members driving out of the car park, leaving the site.
PN624
Well, Commissioner, when we go to the picture, the diagram of the site, which is marked at A17, you'll see the car park, labelled P1. So what all this evidence is articulating is that workers were crossing in and out of the site all the time. They were going out through these gates to meetings, they were coming back in through the gates to get their car, they would get in their car and they were going back out through the gates if they wanted to leave the site. There was clearly workers coming into the toilet, we say, there was clearly workers coming into the canteen which is right down the other end of the site. We understand that these Queensberry arrangements are currently undertaken on site. That people are using the amenities, people are using the canteen and people are going in and out through these gates, whether they be a demonstration or a picket, and that the workers have clearly withdrawn their labour. Even though they say, "Oh, we can't cross the picket line, we'll have to go home. Hang on a minute, I've got to cross the picket line to get my personal stuff, then I've got to cross the picket line maybe again to get my car, then I've got to get in my car and I've got to cross the picket line a third time to go out, unless I need to go to the toilet, because then I've got to cross the picket line again to get to the toilet." It's a complete nonsense.
PN625
Commissioner, we have heard evidence that there were meetings by the CFMEU and there were meetings by the ETU, and that as a result of those meetings some people left the site. We say that those meetings are evidence of organising.
PN626
If we go down to - it's the second page of Mr Clarke's statement, and we go to the second-last paragraph first. Where Mr Clarke also confirms the words to Mr Plummer that "You know what you need to do to fix this situation". That that may be taken as a threat. Or, as we said earlier, an indication of further industrial action.
PN627
If we then go down to the last paragraph, and it clearly identifies there that there may have been cars turned away from the carpark. Once again, remember the map where everybody has to go past the - through the line or past the protest and past the picket to get into the carpark. So clear evidence there that there's some jostling at the carpark entrances, but that evidence seems to be inconsistent; sometimes everyone says "Oh, no, we've got Queensberry arrangements", and other people say, "Oh, no, I had to drive on the wrong side of the road, mate, to get past." It's a bit unclear.
PN628
We then have Mr Ong's arrangements and his activities and the discussions with the company in relation to our best to manager, practically, his activities and that the CFMEU, again, had a meeting on site. And that was conducted by Mr Ong. Mr Kong, sorry, I should say.
PN629
If we then go over to the last paragraph, that he would - that Mr Ong is, clearly in evidence here, that he's happy to enforce his arrangements with his workers. So he's got an arrangement that people can come and go and they shouldn't be restricted, and on this evidence Mr Ong is happy to enforce that.
PN630
Now there does seem to be conflicting evidence over whether it's a picket or whether it's a demonstration. Certainly one man's picket is another man's demonstration. I don't remember seeing any signs on any of the photographs that you've got here that says "Demonstration". The reality is the same; if you feel intimidated, the intimidation is the outcome. The label is not relevant.
PN631
Commissioner, we then heard evidence from the site, correspondences between the site and the subcontractors, about the additional requirements that the company's put in place to put assureties and certainties to workers attending the site, and that they've actually deployed supervisors to all the gates to ensure that people can come in and do their work, to ensure that there's no problems or issues or procedures. And surely this arrangement, in conjunction with Mr Ong's activities and Mr Ong's policing of his activities, clearly indicates that the site is open. And we have seen a myriad of correspondences from the company to the subcontractors that the site is open. We have seen a myriad of correspondence from the subcontractors to their workers that the site is open. Yet the number of workers on site continues to diminish.
PN632
Commissioner, we then come to, as I was just referring you to before, A2, which was all the statements from the subcontractors that they've confirmed to their workers that the site is open and that they have not redeployed those workers to other locations. So A2 is your correspondence from the subcontractors confirming that they have told the workers that the site is open and that the site is safe and that they have not been redeployed to other activities.
PN633
Commissioner, I then come to A13. So A13 consists of a number of documents. It's a bundle. We called them A, B, C, D and E. If I could just spend a moment going through this with the commission.
PN634
Now my colleague will argue that in A, that there was an error when that letter was sent, and that the error was then quickly corrected. And in doing so, the error should not be taken or have regard for. I'm sorry, that's not how the commercial world operates. That is a maybe arrangement that may occur between parties during a formal Federal Court proceeding, but that is not how the real world operates.
PN635
The paragraph at the bottom of 13A reads, "I suggest that the ETU puts all of their employees, except Nielsen's, who are under protected industrial action - - -"
PN636
MR TILEY: Employers.
PN637
MR CAMERON: Employers, sorry. "Except Nielsen which is under a protected industrial action", which isn't actually on the letter, on one email and cc Lendlease. The CFMEU should do the same for its employers, including Lendlease. It is critical that both unions' emails go to Lendlease, i.e., Lendlease employees and possibly - - -"
PN638
MR TILEY: It doesn't say "i.e.", read it accurately.
PN639
MR CAMERON: Sorry. It says, "As many Lendlease employees as possible, especially Plummer and Clarke, so that we can put the two emails in evidence in my cross-examination of Lendlease."
PN640
Now, Commissioner, when I read this email the first time it was sent to me by a third party, my reading of that email was that "I" was in fact the author down the bottom. A Ms Tahl, Trahl, sorry. Trahl? Is it pronounced Trahl?
PN641
MR TILEY: Trahl.
PN642
MR CAMERON: Trahl. So I took "I" meaning Ms Trahl. "I" could also have been the CMFEU. When we go through to the other documents you'll see a very similar letter by them. "I" could have easily been Mr Ingham from the CFMEU, and of course "I" may have been a third person, possibly even the respondents. But when I read it the first time, I certainly took "I" to be the author down the bottom. And that reads perfectly fine; "I suggest" as in Ms Trahl suggests, "that the ETU puts all the employers" or it could easily read from Mr Ingham, that "I" suggests the ETU.
PN643
So it is unclear where that paragraph particularly comes from. So I think there is actually four possibilities. One possibility is that the paragraph was actually meant to be there in terms of it was written by Ms Trahl and she did intend it to be in the correspondence.
PN644
One suggestion is that it was a hangover from an instruction by her solicitor, one suggestion is that it was a hangover from an instruction by the CFMEU, and the third suggestion is that, "No, no, that was just her plan."
PN645
So the reality here is that this paragraph, which was circulated, and that paragraph clearly indicates that the two unions are operating as one and that they are coordinating their efforts in relation to responding or coordinating the restrictions or the withdrawal of labour or the alteration to the normal customary work on this particular project.
PN646
Now if we have a look at the preceding paragraphs. So the first paragraph basically says, "We understand there's industrial action going on at - - -"
PN647
MR TILEY: That's not what it says.
PN648
MR CAMERON: Sorry, the first paragraph says that there's a stoppage of work at the site. The second paragraph says that, "We are instructed that our members cannot perform work at the site due to protected action." Well, that doesn't make sense to me. I don't understand why they couldn't - it doesn't explain why they can't do any work at the site due to protected action. It doesn't explain why it doesn't give any particular reason. "By the Nielsen's employees and the associated demonstration." Remembering again, one man's demonstration is another man's picket. "We are further instructed", it doesn't say instructed - it does say "instructed" I should say. "We are further instructed that our members are ready, willing and able to perform work." Well that's contrary to the sentence above.
PN649
THE COMMISSIONER: It says "perform work for the respective employers elsewhere." That's what it says.
PN650
MR CAMERON: That's correct. That's right. So it says that they may not be ready, willing and able to perform work at that particular site but they may be ready, willing and able to perform work elsewhere. So they're asking for a change to their customary work and they're asking a limitation or a restriction on where they work.
PN651
"If it can be safely performed." Okay, so another restriction or limitation. And, "To be redeployed to another location for that purpose." Well, sorry, what was the purpose? Is it for the purpose of safe work or is it for the purpose of upsetting the protected industrial action at Lendlease? It doesn't articulate for what purpose, it says "for that purpose". So it may well be for the purpose of aggravating the stoppage of work at Lendlease. It does not clearly articulate what "for that purpose" is.
PN652
"We note that this course is permitted by our members' contract of employment."
PN653
THE COMMISSIONER: Mr Cameron, I understand your point.
PN654
MR CAMERON: Yes.
PN655
THE COMMISSIONER: And the point is that they had a place to work.
PN656
MR CAMERON: Yes.
PN657
THE COMMISSIONER: And the various employers are being requested to have them perform their work elsewhere.
PN658
MR CAMERON: Elsewhere. Yes, Commissioner. So then if I quickly move on through the other attachments. So 13B is the letter re-sent excluding the bottom paragraph. 13C is a copy of the original letter.
PN659
THE COMMISSIONER: 13B is the version sent by Ms Trahl to Mr Plummer then forwarded to you.
PN660
MR CAMERON: That's correct.
PN661
THE COMMISSIONER: Yes. 13C is a retraction.
PN662
MR CAMERON: 13C is the retraction, yes.
PN663
THE COMMISSIONER: Or an attempt to recall the message.
PN664
MR CAMERON: Yes.
PN665
THE COMMISSIONER: And that was sent one minute after it was originally sent.
PN666
MR CAMERON: That's correct. And then we have the corrected letter, and then we have the mirror letter, the mirror corrected letter, we say, from the CFMEU. Which in part confirms the original bottom paragraph, the highlighted bottom paragraph on 13A. In that they followed the suggestion of 13A bottom paragraph. So it confirms that the two were acting - coordinating their activities.
PN667
Commissioner, if we just go back to 13A and we have a look at who the email was sent to. If we have a look at those names that the email was sent to, clearly a number of those are third parties. They are not parties who are named in the application, they are not parties who were served the documents in relation to this application and they are clearly third parties. And our argument is that this original letter, 13A, was published to those third parties, and in doing so it then became an unprotected or non-confidential document.
PN668
Commissioner, if I could hand up, it's just a dictionary definition of "published". Any objection? No? This is an extract from the LexisNexis Concise Australian Legal Dictionary simply articulating three - if it's circulated to a third party it's regarded as published.
PN669
Commissioner, we do ask for an order to provide stability to this project to ensure that this project can return to its normal work activities tomorrow and all of next week. Thank you, Commissioner.
PN670
THE COMMISSIONER: Mr Tiley.
PN671
MR TILEY: If it please the commission, I have a seven page outline of submissions which I'd seek to provide to you, Commissioner. What, subject of course to your discretion, I had in mind was that you would take an opportunity to peruse that in a short adjournment after which I could orally address you on any questions you have and a few matters that have fallen from the evidence today, which we think would compress the hearing greatly this afternoon. And obviously great time and effort has gone into those submissions in an effort to assist you today.
PN672
MR CAMERON: I would like to clarify, Commissioner, we haven't seen this document prior.
PN673
THE COMMISSIONER: Well, Mr Tiley, I'll have you speak to the submissions. I don't think we need an adjournment.
PN674
MR TILEY: If the commission pleases.
PN675
THE COMMISSIONER: Yes, thank you.
PN676
MR TILEY: So, Commissioner - - -
PN677
MR CAMERON: Sorry, Commissioner. Can we have another copy, please? Thank you.
PN678
MR TILEY: Commissioner, the outline of submissions that you have before you focuses primarily on matters of principle and deals only briefly with matters of evidence, owing to the fact that obviously they were prepared prior to the evidence today.
PN679
The focus of the argument from this side of the bar table, Commissioner, is obviously on three main issues which we will discuss today. The first of those is whether unprotected or unlawful industrial action is happening. The second is whether that action, if any or whatever action is occurring, however described, is being organised in the sense contemplated by section 418 of the Act, by my clients, the respondents, and lastly, some ancillary submissions about orders if you are against us on one or both of those submissions.
PN680
Can I begin, though, Commissioner, by drawing your attention to paragraphs 5 and 6 of the outline where we deal with the commission's obligation to, with respect, determine a matter of this kind by midnight on the second day after which it was filed. That is, midnight tomorrow, Saturday, and of course if the commission is able to decide it before then, all the better. But the constraint on you, Commissioner, is midnight tomorrow rather than 48 hours after the application was filed, and we have there cited the authority for that proposition.
PN681
Now, unlike the authority there cited, this isn't a case where we move the commission for an adjournment. We're content for the commission to determine the matter based on the materials before it now, but it is helpful for the commission to understand the ability it has to fully consider the matter before rendering its decision.
PN682
Over the page, Commissioner, we have sorted the workers the subject of the application into three discrete categories. The first are the electrical workers taking protected action. Those individuals are not the subject of this application, nor of course could they be. There's no complaint about their having engaged in unprotected industrial action. We will later deal with, briefly, any complaint about them of a different kind.
PN683
The second category are the electrical workers employed by employers other than Nielsen, both direct hires and labour hires et cetera being the recipients of the email that is 13A and I think C, about whose conduct there is a complaint here today. That second group are persons who are members, relevantly members of the CEPU. And lastly the structural trades workers who are members, relevantly members of the CFMEU.
PN684
Now, some time was spent during the evidence on the concept of picketing and demonstrating, and while we don't wish to harbour the point, picketing conduct, protesting conduct, demonstrating conduct, is not of itself industrial action, it cannot be, with respect, regulated by an order under these provisions, nor can it be immunised with the protection that comes with sections 436 and 37 and following.
PN685
So as I develop later in the submissions, whatever views the commission might have about the protestors, no relief is sought against them today nor could it be, with respect, given.
PN686
So the exercise before you in determining the first of the three issues identified is, well what is going on and is that unprotected industrial action? As to which we say the commission can draw comfort from the communications set out in paragraph 11 of my outline from the two unions to all of the affected employers and Lendlease. Now, obviously, Commissioner, we draw your attention to, and concentrate upon, Exhibits 13D, being the ETU communication on 2:12 pm, sorry CEPU, and Exhibit 13E, being the similar CFMEU publication from 2.39 pm.
PN687
Now, my friend sought to make much of the highlighted paragraph in 13A, replicated again, for reasons unknown, in 13B. We don't understand how, really, that paragraph is of any great relevance to the proceeding but my friend, having addressed it, criticism having been directed at the author, my client, it's appropriate that I address it.
PN688
Now, a fair reading of 13A and B shows that the first three paragraphs were written in a very different voice to the fourth. The fourth paragraph is written in the first person by the person that is to cross-examine the Lendlease witnesses. Clearly not written by Ms Trahl. Clearly not written by the CFMEU. The only available inference of the four posited by my friend is the second; that it was a hangover from instructions given to - or advice given to the CEPU.
PN689
Now that is an embarrassing error by the CEPU, Commissioner, no doubt. But it has no relevance whatsoever to the proceeding. My clients have no difficulty with that material being in evidence. It is entirely consistent with the approach they have taken to these events; there is nothing to see, they have nothing to hide, they are proactively trying to address the issue.
PN690
You will see, dealt in paragraph 9 of my submissions, the fact that my clients haven't been able to develop an argument under section 19 - - -
PN691
THE COMMISSIONER: Before we get there, Mr TIley.
PN692
MR TILEY: Yes.
PN693
THE COMMISSIONER: What's being put by the applicant is that having the benefit of these emails is that there is correspondence between the ETU and the CFMEU and it's to send the same message to the recipients of the emails, and the message is, "We don't think that work can be performed at this site and we ask that you provide our members work elsewhere."
PN694
MR TILEY: Well, Commissioner, I think properly broken down there's three things that you've proposed there. One is that there was correspondence between the two unions. There's no evidence of that. The second is that the two unions were saying people can't go to work there. That's not what the correspondence says. The correspondence says, "This is what our members have told us. This is their position." But you are quite right to say the third proposition, which is that the two unions have tried to facilitate people being re-deployed on the instructions of their members.
PN695
Now, it is conceded that there is no evidence before you, given the haste with which the matter has come on, of such re-deployments being affected. It is conceded that that means I can only take this submission so far.
PN696
If re-deployments had been evidenced we would be availing ourselves, or seeking to avail the individual employees who responded to this application, of the safe harbour that is 19(2)(a), authorised or agreed to by the employer.
PN697
If the employer says, "We will re-deploy you to this other site", it ceases to be industrial action.
PN698
THE COMMISSIONER: Yes. And they're not going to do so, are they?
PN699
MR TILEY: Well, Commissioner, you'll see dealt in my submissions at paragraph - can I have you, please, Commissioner, read paragraph 12 of my submissions. Now, the concession is made about the state of the evidence. The best that my clients could do, faced with members saying "We cannot work there", was try to fix the problem. And that's what they did.
PN700
Now, it is entirely unsurprising that similar organisations with common interests at a common workplace and, the record shows, common solicitors, would take a similar position and communicate in similar terms that position.
PN701
THE COMMISSIONER: Mr Tiley, paragraphs 7 through to 12 of your submissions, as I understand, deal with whether or not there was unprotected industrial action being taken and it would be my expectation that you would be speaking or dealing with the actions of the employees and that you might come later to the issue from paragraph 13 as to whether or not it's been organised, and that is relevant to the organisations and the officials in the organisations.
PN702
MR TILEY: The best I can say, Commissioner, about the conduct of the employees is that there is, as I've already conceded, no evidence of redeployment, there is some evidence to which you may have regard about why they are not working and what they have sought to do about it, but the evidence hasn't gotten as far as evidently these submissions had envisaged.
PN703
THE COMMISSIONER: Mr Tiley, there's evidence before me that the employers are instructing the employees to go back to work.
PN704
MR TILEY: Some of them, yes.
PN705
THE COMMISSIONER: If you can point me to where there might be gaps in that. But before me, as I understand, is evidence that Lendlease in respect of its own employees and the various subcontractors are informing their employees that, "The site is open, work is to be performed and you should go back to work."
PN706
MR TILEY: There is such evidence, Commissioner, and it is our understanding that the bundle provided, I believe it was A1, did not cover the field although we've not had an opportunity to do an analysis line by line of each of those employers as against the employers named in the application. A2, I beg your pardon. That evidence is there and frankly, Commissioner, we can't develop those submissions as to whether industrial action is occurring much further on the state of the evidence.
PN707
We do not wish to take that point any further. The email or emails, plural rather, are the extent of it. But certainly in dealing with the emails it is crystal clear from 13(c) that Ms Trahl made an error and sought to retract the email.
PN708
THE COMMISSIONER: Okay.
PN709
MR TILEY: It ill-behoves the applicant that it seeks to rely on that and we note that were the Australian Solicitors' Conduct Rules to apply, that course could not have been taken in regards to Rules 30 and 31. And we've raised that concern and it was pressed and we tried to deal with it constructively today. But the publication was retracted.
PN710
The only publication to which you should, in my respectful submission, have regard is 13D.
PN711
THE COMMISSIONER: Well, talk to me about this - the Solicitors' Rules. Where do you say that there's been a potential breach?
PN712
MR TILEY: My understanding is that my friend doesn't share the same obligations as I do as an officer of the court. So we don't criticise him in the same way we would if he were an officer of the court. But by analogy, it is instructive. Rule 30 - - -
PN713
THE COMMISSIONER: What evidence do I have that Ms Trahl didn't prepare the fourth paragraph? I think - I understand from you the submissions are that perhaps you or somebody from the firm might have but I don't have any evidence before me.
PN714
MR TILEY: You don't have any evidence one way or the other, Commissioner. And it's no good me answering you from the bar table, and frankly we don't wish to make a mountain out of a mole hill. But all we would - if you thought that you had to decide it, which I don't understand how you could possibly need to, but you would look at the words, the final six words of 13A, in evidence in my cross-examination of Lendlease.
PN715
THE COMMISSIONER: So can I understand from you, Mr Tiley, with what I'm tasked to do, pursuant to section 418 - - -
PN716
MR TILEY: Yes.
PN717
THE COMMISSIONER: What's your position as to whether I can find that it does appear to me that industrial action by employees, that is not protected industrial action, is happening, is threatened, impending or probable?
PN718
MR TILEY: Well, Commissioner, subject to the reservations expressed in the outline, in paragraphs 9 and 12, we understand that conclusion to be open to the commission.
PN719
THE COMMISSIONER: All right. And in respect of paragraph 9, that the matter was listed - well that the notice for listing was sent last night, has there - - -
PN720
MR TILEY: We haven't moved for an adjournment, Commissioner.
PN721
THE COMMISSIONER: No. There's been no difficulty in - if you wished to have witnesses here you could have. That's right, isn't it?
PN722
MR TILEY: If we wished to have witnesses here who are employed by my client we could have, yes.
PN723
THE COMMISSIONER: Yes. Thank you.
PN724
MR TILEY: There is dealt in the material - it's a little bit out of order but I might mention it now.
PN725
THE COMMISSIONER: Sorry, where you say were employed by your client, I assume that's clients, do you mean officials and organisers?
PN726
MR TILEY: Officials of the IBNN.
PN727
THE COMMISSIONER: But do you say that there's been difficulty in these gentlemen, if - I understand they're due to work at 6 or 6.30 am or so, the matter was listed for 10 am this morning. Are you suggesting that there's any difficulty in any of those employee members attending and giving evidence?
PN728
MR TILEY: I have no instructions about any specific difficulties of that kind, Commissioner.
PN729
THE COMMISSIONER: All right.
PN730
MR TILEY: The difficulty I refer to more generally is that, for example, reliance on 19(2)(iii), the safety exemption, requires, at the very least, direct instructions, probably direct evidence from the workforce, of which there are many and scattered and it's very difficult to do that in the time available. We accept that the two unions have the ability to bring evidence. I will come, in my submissions, to why there's no necessity for that to occur on the state of the evidence. But it is fair to say that was their election.
PN731
THE COMMISSIONER: Thank you.
PN732
MR TILEY: And that is dealt, just for the reference, in paragraph 26 of our outline, the absence of such evidence.
PN733
Moving on. So the email is issued. The evidence doesn't take it any further than that, but you wouldn't allow the applicant, in my respectful submission, to capitalise on Ms Trahl's innocent error.
PN734
Now, in paragraphs 13 through 24, we give a very careful and thorough analysis of the authorities as to organising and there has been a fairly recent, last year, Full Court of the Federal Court which deals with that issue. I will not simply read into the record those submissions, but to summarise, one can only organise by taking positive steps. One cannot organise by omission. "Organise" is a verb, it requires positive things to be done.
PN735
The BHP case which we have cited is one where it was held that a union official signing a policy which amounted to an overtime ban, the act of signing the policy wasn't enough to constitute organising the subsequent industrial action. Now that is a more positive act than - that is a species of positive act but it wasn't enough in that case.
PN736
We deal in 21 with one of the well-known cases in this jurisdiction, Leighton Contractors v CFMEU, Western Australian Supreme Court, where Justice Le Miere said:
PN737
A meeting of union members or a meeting addressed by a union official may amount to industrial action, it will not automatically amount to industrial action. An examination needs to be done of what is discussed and how the meeting is brought about and what subsequently happens.
PN738
It is trite to observe, Commissioner, that a meeting which occurs before work hours is not industrial action. Now the evidence here is that these meetings occurred at 5.54 yesterday and 6 am yesterday respectively and that the start times, Mr Plummer says, at the site in paragraph 12 of his statement, "People generally start between 6 am and 6.30 am Monday to Saturday", we would invite the commission, given its expertise in this industry, to take notice of the fact judicially that the usual start time in this industry is 6.30 am. Nowhere is there an attempt in the evidence to say that the meetings that the complaint is made about occurred after the start time.
PN739
The principal complaint here, and with respect my friend's submissions about the meeting are a distraction. The principal complaint here is not about the holding of the meeting, there is no evidence about what was discussed at the meeting. Mr Clarke rather conceded that he couldn't speak to that. The concern is about the event subsequent to the meeting. We understand that and we're happy to address that, Commissioner, but you wouldn't be distracted by, especially having regard to His Honour Justice Le Miere's comments, an argument about the meeting itself being industrial action.
PN740
We then bring it all to a head in paragraph 25 and after taking you on a discussion through the superior court authorities on these points, then turn to the commission authorities. There, there are three cited and a fourth is my friend's exhibit, A14, Lendlease v CFMEU (2016) FWC 1830, and there at paragraphs 36 and 37 very similar remarks are made to those in Pacific National v RCBU by Commissioner Larkin and Lendlease v CFMEU by SDP Richards. We have also cited one of Your Honour's recent decisions where Your Honour identified the need for evidence to found a finding that industrial action is being organised in order to justify an order that industrial action not be organised.
PN741
Now, certainly we concede Your Honour's discussion was more brief and not on all fours with the others. But can I please hand up the leading, if you like, of those authorities which is RTBU, and just ask Your Honour to please turn to paragraph 51 of that decision.
PN742
At the risk of repeating well-understood principles, Commissioner, an applicant for an order of this kind cannot come before you in this place and simply have commission hand down an order because they ask for it. It must be demonstrated on the evidence that such a finding is open as to justify an order.
PN743
The commission has there, in paragraph 51 of RTBU, shown great caution in relying on what is only inferential evidence, and in doing so it has had regard there to the consequences of a contravention of an order of this kind. Obviously under section 421 they're punishable by civil penalties. Which goes some way toward requiring the commission to adopt a slightly more rigorous standard in relation to the evidence. It doesn't rise as high as Briginshaw, but certainly the commission must be satisfied, and inferences alone are rarely sufficient.
PN744
We don't say an inferential case could not found an order, but it would be an unlikely case where that would occur, and there's plenty of precedence there cited.
PN745
So your task, Commissioner, with respect, is to very carefully examine the evidence that is before you. In doing so we group the respondents into two categories, obviously; the CFMEU and Mr Kong on the one hand, or the CFMEU through Mr Kong I should say, and the CEPU through Mr Ong. And I've dealt with those in the analysis of evidence section, paragraphs 29 to 32.
PN746
The highest that the evidence rises for Mr Kong is the statement that - the vague statement that, "You know what you need to fix this" or words to like effect. Now, the highest that rises is a very weak inference which you would treat with great caution. There's no attempt to put it any more highly than that by any of the witnesses, to their credit. And in any event it was challenged in cross-examination.
PN747
There is no evidence at all of Mr Kong or his union having any grievance with any employer, Lendlease or otherwise, on this site. There's just no evidence that the CFMEU, in my respectful submission, organised this action, if it be industrial action.
PN748
Turning to Mr Ong and CEPU - - -
PN749
THE COMMISSIONER: Sorry, Mr Tiley, you say that do you because any meeting for which Mr Kong was present was prior to the start time? Is that what you say?
PN750
MR TILEY: There are a number of reasons why any such meeting couldn't properly be characterised by you as industrial action. One is, there's no evidence that it occurred during work time. Two is, the analysis required by the Justice Le Miere remarks in Leightons v CFMEU. To be fair His Honour was there interpreting section 38 of the Building and Construction Industry Improvement Act, but that this the analogue in that legislation to section 147 of this Act.
PN751
So you say, "Well there was a meeting. I'm not told whether or not it's in work time and I don't know what went on."
PN752
THE COMMISSIONER: So do you have instructions as to when work does ordinarily commence on that site for the CFMEU members?
PN753
MR TILEY: My instructions aren't certain, Commissioner. I must be frank about that. And I have taken you, in fairness to the applicant, I have taken you to the evidence that suggests it's earlier than 6.30.
PN754
THE COMMISSIONER: Well, the evidence is that it's from 6 am.
PN755
MR TILEY: Yes.
PN756
THE COMMISSIONER: And that's at paragraph 12 of Mr Plummer's statement.
PN757
MR TILEY: But - - -
PN758
THE COMMISSIONER: And then the evidence of Mr Clarke is that the construction workers were meeting with Mr Kong, well they were observed as early as 5.54 am, which to your point is prior to a 6 o'clock start time, but that they were instructed at around 6.24 am that they needed to return to work.
PN759
MR TILEY: Well, Commissioner, we understand that evidence and we maintain the submission because it is for the applicant to evidence. If it wants to try and argue that the meeting itself is industrial action, so the application to evidence that occurred during work time. It hasn't done that. It's not for the commission to patch up the applicant's case. If it hasn't proven its case, it hasn't proven its case.
PN760
Now, we understand and we meet the concern about what occurred after the meeting. The meeting itself is, as I say, a distraction for those two reasons. You couldn't be satisfied it was industrial action.
PN761
There's probably a third. The section directs attention - section 19 directs attention to whether the action was industrial in character, and there's reference there in the footnote to the provision to the age, which is also dealt with in my submission.
PN762
Now, absent any understanding of what was discussed at the meeting, for example, "We shouldn't go to work because we want to get a higher site allowance", for argument's sake. You couldn't be satisfied it has the industrial character. There is just no evidence.
PN763
The CEPU and Mr Ong are in a different position altogether. We don't even concede a weak inference arises for them. Clearly there are various different events going on at this site, including protected lawful immunised industrial action. The witnesses concede those persons are demonstrating, howsoever described. If they don't like them demonstrating they can do something about that but not in this place.
PN764
The CEPU is necessarily involved in that sense because those are its members. It supports their position in their
PN765
Negotiations and their lawful, protected immunised action. But there is no evidence of the CEPU having anything other than a positive role to play, as much was conceded, in dealing with the conduct of those members. It was conceded that access and egress was being provided. It was conceded, or it is in any event apparent from the face of the business record that is Exhibit 8, Lendlease itself says in Exhibit 8, "This was an agreement."
PN766
It's not an agreement that says you can go and picket to your heart's content, and we never put it that way. But there is an agreement about the manner in which these people will conduct themselves to ensure they don't block access and egress. That agreement on the evidence was procured by Mr Ong, and that is to his and his union's credit.
PN767
Now, all of the evidence focuses on what the CEPU and Mr Ong did in relation to those people. The Nielsen people. There's no evidence about what they did in relation to any other electrical workers at the site. Well certainly no adequate evidence.
PN768
It will surprise the commission little to learn that people, for various reasons, are unwilling to work during a period - or are unable to work during a period of industrial action, protected industrial action. There may be, and this derives from the part of our submissions where we say, given the haste with which these matters have come on we haven't been able to speak to all the workers that are members of our clients, but there may be many and varied subjective reasons and the union couldn't, despite my friend trying to suggest they could, have articulated those reason in its correspondence. They were told by the members "We cannot work there." It might not have been safe to work there, on one hypothesising, absent those electrical workers. It might not have been safe there because of concerns about bullying and harassment if they were to enter the site past the protestors. There's some suggestion of that in A2 I think. One's motivations could be many and varied. But there is no evidence that any of those people took the action with a particular industrial claim, demand or objective in mind to make their actual industrial character. More the point, I digress somewhat, it wasn't done by the CEPU on that evidence.
PN769
In my respectful submission, taken at face value, both unions have played a positive role here in trying to obtain the redeployments. That would render the action of those people not capable of being, even alleged to be industrial action. It is a positive thing to have done, it is a constructive thing to have done. It might not have worked, but it isn't consistent with the hypothesis that they organised the action.
PN770
So we submit that there's no enough evidence to make a finding that industrial action was being organised and to make an order that it not be organised.
PN771
Now, we then deal, lastly, in paragraphs 34 and following, with some matters that I previously put into the third category of ancillary matters. Those probably don't require me to develop them orally, Commissioner, unless you would be assisted by me doing so. The key point there contained is that the order has to - or the key points, rather, the order has to be commensurate with the found jurisdictional facts, that's the John Holland Full Bench in paragraph 35. The terms of the order should closely align with provisions of the Act, and there's been a number of full benches that have criticised draft orders because of their form. We think procuring is bad. We deal with that in paragraph 24 and paragraph 37. And obviously we say that if you are to make an order it shouldn't be as long as that which is sought by the applicant.
PN772
You have two competing inferences in front of you, Commissioner. Has this stoppage of work occurred on 5 May, and there's virtually no evidence as to what's occurred today save for the list, because the previous order expired at 8.30 pm on 3 May? And there's nothing to connect those two things. Or has this occurred against the background of protected action and associated difficulties as expressed in the correspondence that is Exhibits 13D and E?
PN773
The second inference is far more appealing, in our respectful submission.
PN774
THE COMMISSIONER: Mr Tiley, you've read the decision of His Honour Senior Deputy President Richards and the history of this site.
PN775
MR TILEY: We accept, Commissioner, that - and I thought I said as much when it went in, but we accept that that history, as it is recorded in decisions or orders of the commission, can be considered when determining the duration. We can't say to the contrary. I was merely addressing the hypothesis that this had all occurred because the old order expired and rebutting that.
PN776
THE COMMISSIONER: If I am to make an order, what duration do you say I should make it for?
PN777
MR TILEY: Well, Commissioner, with the risk of answering a question with a question, it depends on what findings you make as to what has occurred. That's what John Holland says. You can't make an order that organising stop if you don't make a finding that there is organising. You can't make an order that says "There should be none of things done for six months" unless you make a finding that it is threatened, impending or probable. It depends on the evidence.
PN778
So at the risk of putting myself in a difficult position, this is a species of quasi equitable relief. It is a prohibitory injunction. "Don't do this thing." Or perhaps viewed another way, it's a mandatory injunction. "Do this thing. Go to work." The commission should always only impose the minimum relief necessary to do justice between the parties, as the courts of equity do, and make an order of much shorter duration. Two to four weeks. If the issues are not rectified in that time then there are means available to people to resolve these things.
PN779
It is not, in my respectful submission, sound practice to load up orders for a long period of time pre-emptively.
PN780
Now lastly, can we just deal with the submission in paragraph 38. The application seeks service orders be made, what I describe as service orders be made against both unions. I.e., an order requiring both unions to serve the order.
PN781
Can I ask you, Commissioner, please, to take up the second amended application which was filed this morning, or emailed to chambers, rather, not filed electronically, but emailed in at I think 20 past 7 this morning. We thought it might assist you, Commissioner, to identify the areas of the order about which we have concern.
PN782
I don't say this to be critical of anybody but there's some jumbled numbering in the draft order. These things happen during the urgency of these matters. That would need to be rectified, but using the numbering that's there, obviously we say the two unions come out.
PN783
Orders 3.2.2, I'm under the heading "Industrial Action stop not occurring, not be organised", 3.2.5 and 6.3.2 pick up "procuring industrial action", which is, as I said earlier, not what the sections you're current administering are directed at. Those sections are directed at organising. "Organising" is a different word to procuring, has a different meaning and we submit is a higher bar to get over. "Procuring" comes from a different section of the Act and you shouldn't entertain it.
PN784
So those should come out and you should keep it simple with 3.2.1, 3.2.4 and 6.3.1 if you are to make and order. We accept that threats can be dealt with by the order.
PN785
Over the page, "Other Directions", clause 4, can you see that, Commissioner?
PN786
THE COMMISSIONER: Yes.
PN787
MR TILEY: "A low-level obligation is placed on the employers to take reasonable steps to bring the existence of the order to the attention, issue and distribute a communication", et cetera. They don't have to give it to anyone personally. They don't have to ensure people know about it. They just have to, you know, tick a couple of boxes.
PN788
Now, if the commission is to take what Commissioner Larkin identified in RTBU as a serious step in making one of these orders, you need to be satisfied that it is capable of enforcement.
PN789
An order of this kind couldn't be enforced under section 421 unless it was properly served. People can't be pinged for breaching orders, to be frank, that they don't know about.
PN790
THE COMMISSIONER: Mr Tiley, in the last application before me I required service of the order to be effected by the employer and subcontractors.
PN791
MR TILEY: We don't cavil with that order, Commissioner. What we cavil with is the employer diminishing its obligation and hiding it in clause 4, creating a different obligation of a higher level on the two unions in clause 6.
PN792
THE COMMISSIONER: Yes. I can foreshadow that if I am to make an order I would require the employer and subcontractors to do some work.
PN793
MR TILEY: Very well, Commissioner. Then lastly all there is to say, and it might have been overtaken by the remark you just made, but you would be careful about making the CEPU serve any order in circumstances where there's a process of lawful action going on consistent with the objects of the Act, 171 and 436 come to mind, and if you made the CEPU send out an order saying "Stop industrial action" while other people are lawfully taking industrial action, one wonders what confusion might occur.
PN794
THE COMMISSIONER: Yes, well thank you, Mr Tiley. I would not put the unions to work, I would put the employers to work to ensure that anybody subject to the order is properly served.
PN795
MR TILEY: Very well, Commissioner. Well thank you for that. Unless I can assist you further, Commissioner, those are my submissions.
PN796
THE COMMISSIONER: Thank you. Mr Cameron?
PN797
MR CAMERON: Thank you, Commissioner. Commissioner, my instructions are that there are different start times on the site, and if
you return to the statement of Mr Clarke at page 16, you'll see that the Lendlease's CWs at dot point 3 left site to attend the meeting,
which is obviously the point the Commissioner made earlier, and that there are a number of starts on site. So not everyone starts
at
6 o'clock, some people may start at 5.30, some people may start at 6, some people may start at 6.30, some people may start at 7.
PN798
THE COMMISSIONER: I don't know that you can put to me that some people start at 5.30. There's no evidence of that, is there?
PN799
MR CAMERON: Well, they were on site, Commissioner. Prior to 6.
PN800
THE COMMISSIONER: Well, the evidence of Mr Plummer - - -
PN801
MR CAMERON: The site hours. So they relate to the site hours, commissioner, that some of the directs have to turn up early to open the gate and clean the toilets and stuff like that. As opposed for the subcontractors, the site hours are certainly 6 to 6.
PN802
THE COMMISSIONER: All right.
PN803
MR CAMERON: So obviously some of the directs are there beforehand in order to effect that opening.
PN804
Commissioner, the other point I'd like to raise is back to the letters, which I'm sure the Commissioner is familiar with by now, third paragraph, the union here in the letter clearly articulates that they are trying to encourage redeployment. Now we say that's organising. The union here are clearly articulating, on instructions from their members, that their members aren't prepared to work there. We say that's also organising, and it's a withdrawal of labour or a condition of labour. And then the union goes on to say, this is both unions I should say, the CFMEU and the ETU, that they are happy to facilitate. Now "facilitate" is a verb, it's a doing word. They're happy to do something to help this happen. So I think that's quite clear, that the union in this letter are happy to do something to effect the employees or members of the union in their withdrawal of labour to place a limitation on where they're prepared to work.
PN805
Now, as my friend's articulated, if they have consent, no problems. If it's authorised, no problems. There is no evidence of it authorised.
PN806
No further questions, Commissioner. Other than, I should mention, that clearly the site has been the subject of a lot of orders. Clearly the site is a significant site on the Sunshine Coast and the people of Queensland are waiting for their hospital.
PN807
THE COMMISSIONER: All right. Is there anything further?
PN808
MR TILEY: Not from our side, Commissioner. Might we ask that the transcript be released in due course, Commissioner?
PN809
THE COMMISSIONER: Yes, of course. Parties, I can foreshadow that I will make an order at least in respect of the employees on site. I am turning my mind as to whether or not I will make the order against one or both of the unions, and I foreshadow that the order will be published this afternoon or this evening.
PN810
My reasons for decision will be published at a later time. The length of the order will be known when the order is published.
PN811
I am satisfied that industrial action is happening and that it is threatened, impending or probable in that the issues have not been resolved. I will turn my mind as to whether or not I am satisfied that the industrial action is being organised by the organisations.
PN812
If there is nothing further we will adjourn.
ADJOURNED INDEFINITELY [2.01 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #R1 SCHEDULE OF OBJECTIONS................................................. PN28
MARK CAMERON PLUMMER, SWORN........................................................ PN51
EXAMINATION-IN-CHIEF BY MR CAMERON............................................ PN51
EXHIBIT #A1 STATEMENT OF MARK CAMERON PLUMMER.............. PN83
EXHIBIT #A2 EMAIL TRAILS......................................................................... PN111
EXHIBIT #A3 CORRESPONDENCE CONFIRMING SITE IS OPERATIONAL. PN116
EXHIBIT #A4 EMAIL FROM LEIGH HUGHES TO MARK PLUMMER 05/05/16 8.30 AM.................................................................................................................................. PN123
EXHIBIT #A5 EMAIL FROM LEWIS BIAGINI TO MR PLUMMER AND SUBCONTRACTORS.......................................................................................... PN130
EXHIBIT #A6 EMAIL FROM LEWIS BIAGINI TO MARK PLUMMER AND NUMEROUS SUBCONTRACTORS THURSDAY 05/05/16 AT 7.38 AM............................ PN148
EXHIBIT #A7 STATEMENT OF MR KENNEDY......................................... PN171
EXHIBIT #A8 EMAIL FROM L. BIAGINI TO D. CLARKE, SUBCONTRACTORS AND LENDLEASE EMPLOYEES DATED 05/05/16 AT 1.12 PM......................... PN177
EXHIBIT #A9 STATEMENT OF MR STEWART.......................................... PN183
EXHIBIT #A10 12 PAGE DOCUMENT........................................................... PN193
EXHIBIT #A11 DOCUMENT OF TEXT MESSAGE SENT AT 6.22 PM 05/05/16, TOGETHER WITH PHOTOGRAPH OF LISTING ON NOTICEBOARD......................... PN209
EXHIBIT #A12 BUNDLE OF DOCUMENTS REFERRING TO LABOUR COUNT. PN225
EXHIBIT #A13 EMAIL EXCHANGES MARKED AS A, B, C, D, E........... PN255
EXHIBIT #A14 DECISION OF SENIOR DEPUTY PRESIDENT RICHARDS DATED 22/03/16................................................................................................................... PN268
EXHIBIT #A15 ORDER OF 22/03/16................................................................. PN269
CROSS-EXAMINATION BY MR TILEY........................................................ PN271
RE-EXAMINATION BY MR CAMERON....................................................... PN344
THE WITNESS WITHDREW............................................................................ PN352
DAVID SCOTT CLARK, AFFIRMED............................................................. PN390
EXAMINATION-IN-CHIEF BY MR CAMERON.......................................... PN390
EXHIBIT #A16 WITNESS STATEMENT OF DAVID CLARK................... PN437
EXHIBIT #A17 LABELLED PHOTOGRAPH OF SITE................................ PN455
CROSS-EXAMINATION BY MR TILEY........................................................ PN488
RE-EXAMINATION BY MR CAMERON....................................................... PN534
FURTHER CROSS-EXAMINATION BY MR TILEY................................... PN547
FURTHER RE-EXAMINATION BY MR CAMERON.................................. PN565
THE WITNESS WITHDREW............................................................................ PN580
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2016/189.html