RE2015/875, Transcript of Proceedings [2016] FWCTrans 43 (7 March 2016)

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PN1

THE COMMISSIONER: Good morning, we'll start with appearances, please.

PN2

MR C MURDOCH: May it please the Commission, my name is Murdoch, initial CJ, of counsel. I appear on behalf of JKC Australia LNG Pty Ltd, instructed by Norton Rose Fulbright Australia. My client is the applicant in dispute number RE2015/875 and it is the respondent in dispute number RE2015/1528, may it please the Commission.

PN3

THE COMMISSIONER: Thank you, Mr Murdoch.

PN4

MR C DOWLING: Good morning, Commissioner. My name is Dowling, initial C. I seek permission to appear on behalf of the first, second, fifth and sixth respondents in the application made by JKC Australia Pty Ltd, RE2015/875.

PN5

THE COMMISSIONER: Thank you, Mr Dowling.

PN6

MR G SIVARAMAN: If the Commission pleases, my name is Sivaraman, initial G, and I seek permission to appear on behalf of the third and fourth respondents, the AMWU and Mr Wilkins with respect of Lee in matter RE2015/875, which is the application of JKC. I note Mr Murdoch gave an appearance in the application of the AMWU, but as you would see, Commissioner - I am assuming you've seen the correspondence that was sent discontinuing that application late yesterday, and I'm assuming that Mr Osborne has seen that as well; it was also emailed to him.

PN7

THE COMMISSIONER: Thank you, Mr Sivaraman. Can I just confirm for the record then, and I think you've already done it, but when I read the correspondence last night I just wanted to clarify that that is a discontinuance of the matter?

PN8

MR SIVARAMAN: Yes.

PN9

THE COMMISSIONER: Is there anything arising out of that from any other – Mr Murdoch?

PN10

MR MURDOCH: No. As I understood the correspondence that was received last night, the discontinuance is on the basis that there is no disputed hand between the parties insofar as the applicant in that dispute is concerned.

PN11

THE COMMISSIONER: Yes, all right, thank you. I must concede I think we've had a number of earlier proceedings in the matter. For the record should there be any doubt about the matter? Leave is granted for the purpose of section 596 for all parties to be represented on the basis that it will assist me in dealing with the matter more efficiently. Have the parties conferred about how we're going to proceed today?

PN12

MR MURDOCH: Commissioner, as I understand things, what's proposed is this, subject of course to it being satisfactory with you, but I'll give a brief opening of the applicant's case, then I'll proceed to call the applicant's witnesses. There are five witnesses. As I understand things, all five are required for cross‑examination by the first, second, the fifth and sixth respondents, and two of them are required for cross‑examination by the third and fourth respondents. So that's as I anticipate things will play out today.

PN13

THE COMMISSIONER: Any issues with that for me to look at?

PN14

MR SIVARAMAN: Yes, Commissioner, sorry, I haven't had a chance to speak to Mr Murdoch about this. That is correct other than there will be – and it will be brief but there are just a few questions that - this really does arise from the site visit yesterday and that's why I wasn't in a position to advise this prior - there will be a few questions that I will wish to ask Mr Casey. I still don't intend to cross‑examine Ms Garland or Mr Spratt though. That's the only variation to what Mr Murdoch has said.

PN15

THE COMMISSIONER: All right, thanks, Mr Sivaraman. On that basis then I'm happy to hop into the matters. I guess I'd just make the observation at this stage that given that we have eight witnesses, a number of them have made a number of statements, we'll just see how we go and perhaps assess the situation at the end of the day in terms of whether or not we are required to extend sitting tomorrow or not. I take it that everyone at this stage is proceeding on the basis that we're confident we can get through all of the evidentiary cases in the two days we've allocated. And just on that, as I understand the situation, tell me if I'm wrong, but I apprehend the position is that the intention was to get through the evidence today and tomorrow and that there was a proposition that there would be an opportunity for submissions at a later date in Brisbane. Is that still the situation?

PN16

MR MURDOCH: Certainly, as I understand it, that it's proposed that the evidence be heard today and tomorrow.

PN17

THE COMMISSIONER: Yes.

PN18

MR MURDOCH: And that there'd be a subsequent occasion for submissions to be made.

PN19

THE COMMISSIONER: Yes.

PN20

MR MURDOCH: It would seem, with respect, logical that it happens in Brisbane.

PN21

THE COMMISSIONER: Yes.

PN22

MR MURDOCH: But certainly insofar as today and tomorrow are concerned, evidence only, that's my understanding.

PN23

THE COMMISSIONER: Sure. Is that consistent with everybody else's understanding?

PN24

MR DOWLING: Yes, it is for us, Commissioner.

PN25

MR SIVARAMAN: Yes, Commissioner.

PN26

THE COMMISSIONER: Thanks, well I won't hold up matters any longer. Thank you.

PN27

MR DOWLING: There's just two very brief administrative matters, Commissioner, if I may.

PN28

THE COMMISSIONER: Sure.

PN29

MR DOWLING: And I've advised my learned friend of these. The first is the exhibit RC4 attached to the statement of Mr Cummins is unfortunately the incorrect exhibit, and I'll have Mr Cummins clarify it when he gives his evidence, but I thought prudent if everybody had the correct copy before then.

PN30

THE COMMISSIONER: Thanks, Mr Dowling.

PN31

MR DOWLING: So if I can just hand up a copy of that, and whilst I do that there was some dispute between the parties, your Honour might recall that some orders were made on 17 December of last year about the production of certain documents including telephone records.

PN32

THE COMMISSIONER: Yes.

PN33

MR DOWLING: And there was a dispute in respect of Mr Haire, whether he had provided all of the relevant SMS records, and we provided some additional SMS records today to the applicant, and again out of prudence I provide them to the Commission so that there can be no suggestion that there hasn't been full compliance with the order, so they are the two documents that I am providing to you, Commissioner.

PN34

THE COMMISSIONER: Thank you, Mr Dowling.

PN35

MR DOWLING: They're the only two matters, thank you.

PN36

THE COMMISSIONER: There's no need to mark these documents, just add them to the material that's filed.

PN37

MR DOWLING: I think so, thank you, Commissioner.

PN38

THE COMMISSIONER: Thank you. Mr Murdoch?

PN39

MR MURDOCH: Yes, may it please the Commission. This is an application made under section 505 of the Fair Work Act to have the Fair Work Commission deal with a dispute that exists between JKC Australia LNG Pty Ltd and the respondents regarding the conduct that can be engaged in when exercising right of entry to the onshore construction project at Blaydin Point, and as to the conditions that the applicant could impose in respect of such right of entry.

PN40

The dispute notice that's relevant to this application was filed by the applicant on 19 June 2015, which was just a week after the conduct which triggered the dispute. The facts relied upon by my client are set out in the witness statements that have been filed, and I don't intend to repeat the contents of those statements in the course of the opening. However, for convenience, given that there has been quite a deal of material filed by my client including in reply, could I hand the Commission, and also I've got a copy for my friends at the Bar table, a copy of the list of material that my client relies on, and as the Commission will see there's of course the application then the respective statements, both original and in reply, and then you'll also note that there is an outline filed 13 November 2015, and then two respective sets of submissions in reply to the submissions put in by the respondents respectively.

PN41

THE COMMISSIONER: To the extent that there were submissions in reply in regard to RE2015/1528, I guess we just disregard those?

PN42

MR MURDOCH: Yes.

PN43

THE COMMISSIONER: All right, thanks, Mr Murdoch.

PN44

MR MURDOCH: In essence, the applicant's position is that the parties are in dispute and remain in dispute as to what type of conduct can be engaged in and what restrictions can be imposed on right of entry to the project, specifically, entries to hold discussions pursuant to section 484. On the two days in question, which triggered this dispute, the organisers of the respondents it's submitted by the applicant, engaged in conduct which broadly involved refusing or failing to follow reasonable directions of escorts, walking away from escorts, failing to comply with site entry conditions and requirements, holding discussions with employees of the applicant other than in meal times and breaks, holding discussions with employees of the applicant in locations other than the assigned meeting rooms, including in rooms that were not agreed with the applicant and were not the default location pursuant to section 492 of the Act, holding combined union meetings without the consent of the applicant, holding discussions with the employees whose industrial interests the respective unions are not entitled to represent, and organising, encouraging or inciting unlawful industrial action.

PN45

The application, Commissioner, doesn't just involve a debate as to what occurred on 10 June and 12 June, it also, in my respectful submission, involves and indicates a dispute, an ongoing dispute, as to what type of behaviour is appropriate when exercising right of entry at this project. It's the applicant's submission that these questions and this dispute as to what is appropriate and reasonable haven't gone away and haven't been resolved, particularly given that right of entry continues in respect of this project, and accordingly there is thus a live dispute that remains in respect of right of entry.

PN46

The application is brought under section 505. The orders that are sought in respect of the dispute are set out in the application. Those orders are sought to seek to resolve the dispute. The applicant has, as I say, five witnesses. They're available for cross‑examination. The order in which they will be called will be Mr Casey, Mr Garland, Mr Spratt, Ms Richards and Mr Lee, and unless there's anything further the Commission requires by way of opening I'd now call Mr Casey.

PN47

THE COMMISSIONER: Thank you, Mr Murdoch. We might just mark the document that you've handed up as the list of materials as document 1.

<JOHN PATRICK CASEY, SWORN [10.15 AM]

EXAMINATION-IN-CHIEF BY MR MURDOCH [10.16 AM]

*** JOHN PATRICK CASEY XN MR MURDOCH

PN48

THE COMMISSIONER: Good morning, Mr Casey, I'm Commissioner Simpson. I give you to Mr Murdoch.

PN49

MR MURDOCH: Could you give your full name to the Commission, please, Mr Casey?‑‑‑John Patrick Casey.

PN50

What's your present occupation, Mr Casey?‑‑‑I'm a senior employee relations adviser on the JKC Ichthys project.

PN51

Have you provided a statement for use in this proceeding?‑‑‑Yes, I have.

PN52

Is that a statement consisting of some 13 pages signed by you on 28 August 2015?‑‑‑Yes.

PN53

Mr Casey, can I ask you to go to paragraph 4, and are there some matters in paragraph 4 that you wish to clarify?‑‑‑Yes, I do.

PN54

Could you just do so, please?‑‑‑Yes. There is a correction in – a word was left out – the paragraph should read: "The project commenced on site in or around April 2012." And since the time of swearing – or preparing this statement, INPEX, the owner of the project, has changed the date on which the first gas is scheduled and I think produced, and according to INPEX they intend to produce first gas towards the end of September 2017.

PN55

With those clarifications borne in mind, are the contents of your statement otherwise true and correct to the best of your knowledge and belief, Mr Casey?‑‑‑Yes.

PN56

On the basis I'd tender Mr Casey's statement, Commissioner.

PN57

MR DOWLING: Your Honour, there is one objection.

PN58

THE COMMISSIONER: Sure.

*** JOHN PATRICK CASEY XN MR MURDOCH

PN59

MR DOWLING: We'll try very hard to keep the objections to a minimum but there's just one in respect of Mr Casey and that is at paragraph 31 – the entire paragraph 31. The objection is made on a number of bases, but the first is relevance, and perhaps if I can briefly address your Honour on that by reference to the application that my friend referred to in his opening, which is the application that commenced the 2015/875 and was filed on 19 June. Does your Honour have that close by amongst all of the material that you have?

PN60

THE COMMISSIONER: The application itself?

PN61

MR DOWLING: Yes.

PN62

THE COMMISSIONER: Yes.

PN63

MR DOWLING: There are six paragraphs, your Honour, that highlight the dispute as framed by the applicant, and they commence on the third page, your Honour, under the heading: What is the dispute about. It there says the second, fourth and sixth respondents in their capacity as a representative exercised a right on the premises occupied by the applicant on the 10th or 12th and/or 12th of June. The following paragraph refers to the conduct of the second, fourth and sixth respondents during what we understand to be that exercise of right of entry on the 10th and 12th of June, so we're clear that the dispute is about the conduct of those three individuals on the 10th and 12th of June. That's then supported by the grounds that commence on the next page at paragraph 5. The first ground refers to the 10th of June and the conduct that occurred on the 10th of June in the following paragraph, and that at the middle of the next page, Commissioner, you will see at subparagraph 4, the 12th of June is referred to and the conduct that occurred on the 12th of June is there set out. So for our part we understand that the dispute is clearly framed by the conduct of the three officials on the 10th and 12th of June. There is no suggestion anywhere in the application or elsewhere that what is to be argued before you is conduct of other officials on other occasions that occurred prior to the 10th and 12th of June. We understand the dispute to be only about those days, and in those circumstances it is our submission that what it is that Mr Casey sets out at paragraph 31 and the subparagraphs that are included in that paragraph are simply not relevant to the dispute that is before you.

PN64

Can we add too the ground of relevance. Your Honour will be familiar with section 505, the section under which the application is made, and subsection (4) of that application requires the Commission to take into account fairness between the parties in dealing with any dispute. In our submission it simply does not accord with proper fairness to set out a whole lot of events that occurred prior to the events the subject of the dispute that involved different people, on different occasions, in different parts of the site, and say that somehow that is relevant to the dispute at hand.

*** JOHN PATRICK CASEY XN MR MURDOCH

PN65

The last ground – we appreciate of course that the Act provides the Commission is not bound by the rules of evidence, but as has been commonly held we say that those rules of evidence properly underline what is appropriate and admissible – properly admissible material, and we refer the Commission to section 135 of the Evidence Act which talks about weighing the appropriate value with the unfair prejudice that might be visited upon the respondents, and we say here there's no probative value of this material, probative value in the sense that it could establish a fact in issue, and against that is the potential prejudice by having to consider, and the time to be wasted by having to consider, a whole lot of other occasions involving other people at other locations that are not relevant to the 10th and 12th of June. That's our objection.

PN66

THE COMMISSIONER: Thanks, Mr Dowling.

PN67

MR SIVARAMAN: Commissioner, I should add that I am instructed to make the same objection - - -

PN68

THE COMMISSIONER: Yes.

PN69

MR SIVARAMAN: - - - in particular to paragraph 31(g), which is the one that's relevant to the AMWU, but I don't think I can add to Mr Dowling's comprehensive submissions on that point, but we wanted it to be noted.

PN70

THE COMMISSIONER: Thank you. Mr Murdoch?

PN71

MR MURDOCH: Yes, Commissioner, I hadn't appreciated that an objection was going to be made to that paragraph until my friend made it. I don't say he's not entitled to make the objection but it's the first I'd heard about it, so in order to address you fully on it might I just ask for a brief adjournment to take some instructions in respect of the objection?

PN72

THE COMMISSIONER: Sure, Mr Murdoch.

PN73

MR MURDOCH: Maybe a quarter of an hour.

PN74

THE COMMISSIONER: All right then, we'll stand down until 10.30, and, look, if you need a bit more time just let my associate know.

PN75

MR MURDOCH: Thank you, Commissioner.

SHORT ADJOURNMENT [10.23 AM]

*** JOHN PATRICK CASEY XN MR MURDOCH

RESUMED [10.46 AM]

PN76

THE COMMISSIONER: Mr Murdoch.

PN77

MR MURDOCH: Yes, thank you, Commissioner. My client doesn't concede the objection. The material that's been sought to be excluded isn't put forward by my client as evidence of the facts alleged as to conduct in the correspondence. However, it's submitted that the correspondence is relevant because it's clear that it is correspondence with the unions who are the respondents to this application as to my client's expectations going forward from that correspondence being sent in respect of right of entry. So in that respect it's analogous but perhaps more specific in terms of conduct to the more general correspondence in Mr Casey's affidavit, such as that referred to in paragraph 14.

PN78

The correspondence and the relevance of it go to the expectations of conduct when exercising right of entry. For example, there's evidence before the Commission in this proceeding as to what's alleged to be unauthorised access to and use of the area known as the electrical stores area in the eastern end of the site. When one goes to the correspondence that is at JC20, JC21 and JC23, that correspondence – if the Commission goes to JC20, just by way of example - - -

PN79

THE COMMISSIONER: Yes.

PN80

MR MURDOCH: The Commission will note that that correspondence set out an unacceptable conduct of CFMEU officials on 19 June 2014 and access to sites. If the Commission just goes to: "The CFMEU officials engaged in conduct," it included: "1) entering various locations under our client's control," et cetera, "without authorisation." Going down a bit more:

PN81

This conduct was unlawful and not permitted by a properly exercised right of entry.

PN82

Going over the page, right at the end:

PN83

This conduct is not acceptable and must cease. Please ensure that this correspondence and the position in respect of access to various sites associated with the Ichthys project be brought to the attention of the CFMEU's officials.

*** JOHN PATRICK CASEY XN MR MURDOCH

PN84

And there's then similar correspondence to the other two unions, the subject of this application, at JC21 and 23. So in my submission it's relevant as it demonstrates my client's position in respect to access to areas without authorisation, which of course is one of the issues in dispute in the matter before the Commission. So given that it's relevant in that way, there's therefore, in my submission, probative value to the material, and, insofar as the point was made in respect of it somehow being prejudicial, well, given that my client doesn't rely upon on it as proof of the actual conduct referred to therein, that concern in respect of prejudice doesn't arise. On that basis, in my respectful submission, the material should remain before the Commission and shouldn't be excluded.

PN85

THE COMMISSIONER: Mr Dowling, anything in response?

PN86

MR DOWLING: Just briefly, Commissioner, three matters. Firstly, Commissioner, you should understand that as we read the correspondence, Mr Casey is not the author of any of the correspondence.

PN87

THE COMMISSIONER: Yes, I note that.

PN88

MR DOWLING: And nor is it said anywhere that he was the provider of instructions for the purposes of the correspondence, so what it is that Mr Casey can say about it reflecting the expectations of his employer, we say, is of either limited or no probative value at all. Secondly, it's said by my learned friend that it somehow is relevant to the expectation of the applicant. As we understand it that can only be the expectation they had prior to these events. It's certainly not said to be relevant to the expectation post‑10 and 12 June. None would be relevant to the expectations they may have had. How Mr Casey can say that, I repeat, we can't see, but it can only go to the expectations prior to 10 and 12 June. And thirdly – perhaps this is repeating what I've already said – there's nothing in the application about the conduct other than the 10th and 12th of June.

PN89

Lastly, my learned friend's submission seems to be directed to the corporate respondents. By that I mean the three unions rather than the individuals. The application is directed at the three individuals and it is only said that the respondents are liable by operation of 793. We say that that's misguided for the reasons that are set out in our submissions, but what seems to be said now is this is the expectations directed towards the corporate respondents – the unions – but of course the application is only about the conduct of individuals, so how the expectations as against the corporate respondents is relevant we can't see. They are the only matters in response, Commissioner, thank you.

*** JOHN PATRICK CASEY XN MR MURDOCH

PN90

MR SIVARAMAN: Commissioner, very briefly, in respect of the letter that was sent to my client, to the State Secretary of my client, which is JC21, it can be distinguished really from the first correspondence that Mr Murdoch outlined in that there is no identification in any way within that letter of any official of my client, or what action that they may have taken, so to extrapolate from this very general correspondence that it in some way reflects the expectations in relation to my particular client who are the subject of this application we say is not possible, and on that basis we press the objection.

PN91

THE COMMISSIONER: Thank you for that. This is how I'm going to rule. The approach that I'm going to adopt is not – you won't be unfamiliar with the approach in this Tribunal, given that we're not bound by the rules of evidence. I firstly – I note that Mr Murdoch submitted that the applicant's don't rely upon this material on the basis of it is seeking to establish facts about the conduct of the respondents, certainly the officials. The material generally pertains to issues in connection with the conduct of an official, the CFMEU in 2012 and 13 and then another official of the CEPU in early 2015.

PN92

I note the submission made by Mr Dowling that none of the correspondence is generated by anyone who is going to give evidence in this case, and so my impression is that the material is generally not – there's a very tenuous connection between what it addresses and the alleged dispute, as put by the applicant, in the facts and issue that I have to determine. My approach is going to be this. I'm not going to exclude it. It will be a matter of weight that it might be accorded, but my preliminary view is that any weight that might be attributed to it is likely to be very minimal, if anything. That's my approach. That's my ruling. Mr Murdoch?

PN93

MR MURDOCH: I've got no further evidence‑in‑chief for Mr Casey. I don't know if you've marked the statement?

PN94

THE COMMISSIONER: No, thank you for reminding me, Mr Murdoch. I'll admit the statement of Mr Casey dated 28 August 2015 as exhibit 1.

EXHIBIT #1 WITNESS STATEMENT OF JOHN PATRICK CASEY DATED 28/08/2015

PN95

MR MURDOCH: Thank you, Commissioner.

CROSS-EXAMINATION BY MR DOWLING [10.55 AM]

PN96

MR DOWLING: Mr Casey, can I just clarify you are according to your statement the senior employee relations adviser for JKC Australia, is that correct?‑‑‑That's correct.

PN97

You give some evidence about the responsibilities that go with that position and you do that in paragraph 10 of your statement, and you say there:

*** JOHN PATRICK CASEY XXN MR DOWLING

PN98

The responsibilities are to ensure that the relevant ROE procedures are appropriately complied with and adhered to by those persons who are delegated functions around the management of ROE on the project.

PN99

Do you recall giving that evidence?‑‑‑Yes, I do.

PN100

Just in terms of those people that are delegated functions around the management of ROE on the project, is it your understanding that an entity called CSNT are contracted to INPEX to deal with right of entry on the site?‑‑‑Yes.

PN101

It might also be the case that particular personnel of subcontractors in a particular area might have responsibility for dealing with right of entry also?‑‑‑Yes.

PN102

So to take the example of the relevant area CCPP, UGL are one of the subcontractors there, and they have an employed personnel that are responsible for right of entry, as you understand it, is that right?‑‑‑For assisting CSNT.

PN103

I see. Is it right to say, in terms of CSNT's role and any UGL people or anyone else that might be assisting CSNT, their duties include overseeing the right of entry procedures before there is any entry? Is that fair?‑‑‑It's CSNT's role, yes.

PN104

So they'll oversee the procedure before the entry occurs?‑‑‑Yes.

PN105

And then on the site they will supervise that right of entry, that's their job?‑‑‑Yes.

PN106

Is it also fair to say, to the best of your understanding, that their job also includes liaising with whoever it is that's entering and making sure that if there are any problems or any issues arise they deal with those issues?‑‑‑Yes.

PN107

So in your capacity as the person ensuring the relevant ROE procedures are complied with and adhered to by those delegated parties, CSNT or anyone assisting them, your role is to, amongst other things I'm sure, to oversee all of that and to make sure CSNT carry out their job?‑‑‑Yes.

PN108

And to make out that if there's anyone from UGL assisting CSNT they carry out their job and they comply with the right procedures and deal with the people in the right way?‑‑‑Yes.

*** JOHN PATRICK CASEY XXN MR DOWLING

PN109

Thank you very much. As part of those responsibilities, of yours at least, dealing with the functions around the management of ROE on the project, in your words, are you familiar with the provisions in the Fair Work Act that provide for appropriate meeting places in respect of a right of entry to hold discussions with union members?‑‑‑Yes.

PN110

Are you familiar with section 492 that provides if there's a failure to agree with the permit holder about a meeting location what might then occur?‑‑‑Without having it in front of me my understanding is it would revert to a crib facility.

PN111

I think that's generally correct, and to be fair to you it talks about if there's no agreement it's to be a room or area in which one or more persons who may be involved in the discussions ordinarily take their meal or other break?‑‑‑Yes.

PN112

And it's provided by the occupier for the purposes of taking meals or breaks, so if they can't agree the default is - - -?‑‑‑The crib facility, in my understanding.

PN113

You understood all of that on the 10th and the 12th of June?‑‑‑Yes.

PN114

Were you involved in allocating the rooms to any of the people that visited on the site on the 10th and the 12th of June?‑‑‑No.

PN115

Did you have any discussion with Ms Richards from UGL about the allocation of the rooms?‑‑‑Not at that time, no.

PN116

When you say not at that time, what do you mean?‑‑‑I have in my time on the site, but not in respect of those dates.

PN117

Are you aware that she allocated to the CFMEU the training room?‑‑‑I am aware of that, yes.

PN118

Were you aware of that on the 10th and the 12th of June?‑‑‑Yes.

PN119

Did you raise a concern about that? Did you say that, look well if there's no agreement about where it is that the parties are going to meet we can't insist on the training room because the training room would not be consistent with the provisions in the Act? Is that something you raised?‑‑‑No, I didn't.

*** JOHN PATRICK CASEY XXN MR DOWLING

PN120

Is there a reason you didn't raise that?‑‑‑My understanding was that was a previous to where the CFMEU had met on many occasions.

PN121

Did you understand on the 10th of June that the CFMEU did not agree that the training room was an appropriate room?‑‑‑No.

PN122

Had you understood that would you have directed that it should be somewhere other than the training room?‑‑‑Had I understood that I would have said well the default position is the crib facility.

PN123

Which crib facility?‑‑‑The crib facility where CFMEU members had their crib.

PN124

But if it was something that you were controlling at the time, you would not have insisted on the training room, had you understood there was no agreement?‑‑‑If there was no agreement the default position would have been the crib facility.

PN125

I take it when you say a crib facility that you mean one that you thought in your view would have been able to accommodate the numbers of CFMEU members that it was expected would be attending a meeting?‑‑‑No, it would have been one of the crib facilities.

PN126

Should we understand that if you had understood there was a disagreement you would have taken a practical approach to it or not?‑‑‑I would have said a crib facility will be made available.

PN127

And if it was made clear to you that there were 50 or 60 people, I take it that you would not have sent them to a crib room that only had 20 seats in it?‑‑‑I would have advised the CFMEU to put in the right of entry for another time, if they wished to seat people in another crib facility.

PN128

Sorry, I'm not sure you answered my question. If it was clear to you that there were 50 or 60 people, would you have sent them to a crib room with 20 seats in it?‑‑‑I would have suggested to the subcontractor they allocate one of the crib rooms where CFMEU members meet at the crib.

PN129

And one that could accommodate the 50 or 60, is that what you would have been recommending?‑‑‑Not necessarily, no.

*** JOHN PATRICK CASEY XXN MR DOWLING

PN130

So you might have said, well, look I don't care if there's 60 people in there, put them in that room; I don't care if it's got 20 seats or 16 seats, that'll do?‑‑‑I would have said in the absence of agreement the Act says the default position is the crib facility. Which crib facility? We'll use that crib facility. If your members want another crib facility then you can put in another right of entry to go to another crib facility.

PN131

But surely you wouldn't have wanted to exacerbate the problem? If there's 50 or 60 members standing around, you're not going to say, well go in there, in a room that's clearly not going to fit them all; that's not something you would want to do? I take it you would want to try and resolve the situation and say look let's find a room that's big enough for all of these people. Is that a practical approach you would have taken?‑‑‑The training room was a suitable size. In the absence of agreement on the training room I would have said a crib facility.

PN132

Is it your evidence that it's your view that on 10 June the training room was an appropriate room?‑‑‑Yes.

PN133

Do you know how many seats there are in the training room?‑‑‑I know the size of the training room.

PN134

Do you know how many seats there are in the training room?‑‑‑-At varying times there were – when I've been down there, there have been 20 seats in there, there have been 30 seats in there.

PN135

Well we were all in there yesterday and there were 16 seats. Does that accord with your recollection of how it is occasionally?‑‑‑No, I've been in there and there have been 20 seats, there have been 24 seats. I've been in there a number of times.

PN136

If on this day, 10 June, there were 16 seats, would you accept that that's not an appropriate room for 50 or 60 people?‑‑‑No, I would have accepted the size of the room, in my view, was appropriate.

PN137

You know it has two adjoining offices, internal, two adjoining offices to it?‑‑‑Yes, I'm aware of that.

PN138

And that's used by training staff and other management staff and other administrative personnel?‑‑‑Yes.

PN139

Whilst a meeting's occurring?‑‑‑I'm aware that those rooms are attached to it.

PN140

Does that suggest to you that it's not appropriate for a meeting?‑‑‑No, it doesn't.

*** JOHN PATRICK CASEY XXN MR DOWLING

PN141

If you're aware that there's no eating or other crib facilities in the training room?‑‑‑No, I'm aware of that, yes.

PN142

Does that suggest to you that it's not an appropriate meeting room?‑‑‑No, that doesn't suggest it.

PN143

And you're aware that it's full of training equipment? When we were in there there's screens, projectors, print‑outs, hand‑outs, tables full of papers for training. Does that suggest to you that it's not an appropriate room for 50 to 60 CFMEU members?‑‑‑No.

PN144

But you accept of course that if there's a disagreement you cannot insist on that training room?‑‑‑Correct.

PN145

You give some evidence in your statement from paragraph 17 - and I don't need to take you to it unless you'd like to refresh your memory - but about the 17 through to 25, you'll see that starting on the bottom of page 3 through to the bottom of page 4, and that sets out the induction process that's undertaken to the best of your knowledge at the site. Do you see all of that? Do you recall that evidence?‑‑‑Yes, I do.

PN146

Just dealing with one day at a time, to the best of your recollection is it correct to say that there was no issue with any of the induction or entry processes with any of the officials on 10 June?‑‑‑My understanding is that the officials abided by the correct entry requirements on the day.

PN147

They filled in the right forms?‑‑‑Yes, correct.

PN148

They carry out the induction?‑‑‑Correct.

PN149

They were wearing the appropriate PBE?‑‑‑That to my understanding is correct.

PN150

And when on any day they were asked for a permit they showed it?‑‑‑Yes.

PN151

And all that was done, I suggest to you, in a civil and polite manner? There was no confrontation, no difficulty at all?‑‑‑I wasn't present but I was not informed of any difficulties.

*** JOHN PATRICK CASEY XXN MR DOWLING

PN152

You say you weren't present. By that you mean you weren't present where these relevant events occurred on 10 and 12 June?‑‑‑That's correct.

PN153

You're aware, are you, that the relevant officials or organisers from the three unions also attended at the site on 11 June, the day in between the 10th and the 12th?‑‑‑Look, from memory, I understand there were entries on that day.

PN154

As I understand it, Ms Richards is going to give some evidence - and tell me if you don't know anything about this - but she's going to give some evidence that the officials attended to have some discussions about the issues that have been raised by members on the previous day, the 10th. They wanted to have discussions with management, and they met with Ms Richards, Mr Gittus and Mr Spratt. Do you know anything about that?‑‑‑I know nothing of that meeting.

PN155

Just let me ask you one more question about that meeting. Ms Richards will give some evidence that those three people – Ms Richards, Mr Spratt and Mr Gittus, as we understand it, told the officials of the union that they could meet, but the delegates were not allowed to meet with them. My question to you is did Ms Richards, or Mr Spratt or Mr Gittus, discuss with you their decision to refuse the delegates attendance at that meeting together with the organisers?‑‑‑Not prior to that. I am aware subsequently we have had a discussion where that was mentioned to me they had refused to allow the delegates to attend.

PN156

When you had that discussion subsequently about their decision to refuse to allow the delegates to attend, did they explain to you why it is they refused to allow the delegates to attend?‑‑‑From memory I can't remember an explanation where given. I remember I'm aware that they advised me they refused to allow the delegates to attend, but I have no memory of exactly why.

PN157

I'm sorry, to try and clarify something you can't remember is a bit difficult, but do you mean by that that you have a memory of some explanation being given but you just can't remember what it was?‑‑‑I have a memory of them telling me they didn't allow the delegates to attend. I have no memory of them explaining why nor of me asking why.

PN158

Can I just clarify, from your perspective as someone who oversees all of those relevant people - CSNT or UGL in this capacity - in a right of entry, can I ask you whether in their shoes is it fair to say it would have been prudent and would have taken the heat out of any situation to allow the delegates to attend with the organisers on 11 June?‑‑‑No.

PN159

You don't agree with that?‑‑‑No.

*** JOHN PATRICK CASEY XXN MR DOWLING

PN160

What's your reason for saying that?‑‑‑People operate in a different viewpoint. I don't see a need to always involve delegates in meetings, in my history. I quite often have just met with union officials.

PN161

Strangely though, what Ms Richards does here is she says you can't meet with the delegates, and then immediately thereafter she goes and gets the delegates and meets with them. I'm suggesting to you that the prudent course that would have resolved the issue for everybody is to let the organisers meet together with the delegates. Isn't that something that would have solved the problem for everybody?‑‑‑No.

PN162

You don't agree?‑‑‑No, I don't agree.

PN163

Are you aware of the current meeting arrangements or the three unions and their respective officials when they come on site now?‑‑‑Yes, I do, yes.

PN164

Can I confirm with you then that firstly, in respect of the CFMEU, that they now meet in a room in the lay down yard, or what's called lay down 1?‑‑‑My understanding is that's correct, yes.

PN165

Can I suggest to you that that is crib room 3 in lay down 1?‑‑‑I understand that, that they meet in a crib room which is allocated to them in the lay down area.

PN166

Can I suggest to you that that's a large crib room that on my reckoning has seats for in excess of 80 people?‑‑‑I've not been into that crib room.

PN167

But you understand that - - -?‑‑‑I understand there is a large room.

PN168

Can I also suggest to you that the CFMEU have met in that room since shortly after June of 2015?‑‑‑I'm not aware of when they started meeting there.

PN169

Can I suggest to you that they have met in that room at least on 10 occasions since June of 2015?‑‑‑I'm not aware of how many occasions they've met there.

PN170

You know they've met in there?‑‑‑I know they have met there.

PN171

And you know that – is it correct to say that you know it's been a number? By that I mean more than one?‑‑‑I know it's been more than one, yes.

*** JOHN PATRICK CASEY XXN MR DOWLING

PN172

I'm just suggesting to you out of fairness, because there will be some evidence about this, that it's at least 10?‑‑‑Yes, I could not comment on that.

PN173

Can I also suggest to you then, for your comment if you have one, that on those occasions that they have met in that room there has been no incident or no confrontation or other dispute at any stage with any official of CSNT or UGL or anyone else?‑‑‑I could not comment on that.

PN174

Can you tell the Commission whether it has been reported to you that there has been any incident in respect of them meeting in the rooms in lay down 1?‑‑‑I'm not aware of any incident that's been reported.

PN175

Can I also suggest to you out of fairness that the evidence will be that the CFMEU is satisfied with that room, crib room number 3, in lay down 1? Is that something that you're aware of?‑‑‑I'm not aware of – I've not had any discussions with the CFMEU on that or the CSNT.

PN176

Can I also ask you then whether you're aware of – and I think this is incorporated by your earlier answer – but whether you're aware of the current arrangements for meeting rooms for the ETU, or the electrical division of the CEPU?‑‑‑My understanding is the ETU meet in the area 19, in the middle area between the western and eastern crib areas.

PN177

Can I suggest to you that that is also a large crib room that has seats for something in excess of 80 people?‑‑‑I'm aware it's a large crib room. I have not inspected how many seats are in there.

PN178

You'd be happy to accept that it's well in excess of the 20 and something closer to my 80 I take it?‑‑‑I can't make any comment on that. I've not been inside that room in recent times.

PN179

As much as you know it is a large - - -?‑‑‑It is a larger crib room than crib room 4 which was previously where they met.

PN180

When you say larger, can I suggest to you that it's about five times the size?‑‑‑I've not been inside the crib room, I would not know.

*** JOHN PATRICK CASEY XXN MR DOWLING

PN181

Can I suggest to you also that the ETU have met in that larger crib room since shortly after June of 2015?‑‑‑I am not aware of when they commenced meeting in there but I'm aware they meet there now.

PN182

I can tell you that the evidence will be that they have met in that crib room approximately seven times since June of 2015. Does that accord with your understanding?‑‑‑I am not aware of how many times they've met there.

PN183

Again, are we in the position where you know it's a number, it's more than one, but you don't know how many?‑‑‑I don't know many.

PN184

Can you tell me whether it's been reported to you whether there's been any incidents at all arising out of their meeting in that meeting room?‑‑‑I don't remember of any incidents being reported to me in relation to that crib room.

PN185

Thank you. Can I suggest to you, and tell me if you don't know, but the ETU or the electrical division of the CEPU are satisfied with that crib room and meeting in that crib room?‑‑‑I've had no discussions with the ETU in relation to that.

PN186

Now I take it also from your statement and the other statements that have been filed for the applicant there's some complaint about what's described as a joint meeting. Are you familiar with that complaint?‑‑‑Yes.

PN187

Can I suggest to you that since June of 2015 there has not been any meeting that could be described by anyone as a joint meeting. Does that accord with your understanding?‑‑‑I am not aware of any meetings that could be described as a joint meeting.

PN188

Can I suggest to you also that there's not been any discussion, consideration raising of the possibility of a joint meeting at any time since June of 2015?‑‑‑No, that's not correct.

PN189

Perhaps if I can put that a different way. There has been no discussion of such a thing put by the CFMEU or the CEPU?‑‑‑That's not correct.

PN190

Nothing further, Commissioner.

PN191

THE COMMISSIONER: Thank you, Mr Dowling. Mr Sivaraman.

CROSS-EXAMINATION BY MR SIVARAMAN [11.18 AM]

*** JOHN PATRICK CASEY XXN MR SIVARAMAN

PN192

MR SIVARAMAN: Mr Casey, are you aware of the room that is currently being used by Mr Wilkins to meet with AMWU members when he exercises right of entry onto the site?‑‑‑Yes.

PN193

That room is crib room 11 isn't it?‑‑‑That's correct, yes.

PN194

Do you accept that since July of last year Mr Wilkins has been meeting with members on a regular basis in that room?‑‑‑That is my understanding, yes.

PN195

There have been no issues identified to you arising from Mr Wilkins meeting with his members in that room?‑‑‑That's correct.

PN196

It's the case isn't it that prior to June of last year that Mr Wilkins didn't have access to that room, isn't it?‑‑‑My understanding is Mr Wilkins did not wish to meet in a room where members of other unions had their crib.

PN197

That doesn't directly answer the question. My question is was it ever the case that access to that room was actually denied?‑‑‑I was not aware that access had been denied to that room.

PN198

So you're not aware one way or another?‑‑‑Correct.

PN199

So is it the case then that it is possible that access to that room had been denied, for example, by a barricade?‑‑‑I could make no comment, I have no knowledge of whether access was denied.

PN200

Mr Casey, could you go to annexure JC29 of your statement?‑‑‑Yes.

PN201

In that there's a legend where number 1 and there's a rectangle and within it it's marked number 1, and that is the western end crib facilities. Do you see that?‑‑‑Yes, I do see that.

PN202

Do you accept that that's – that map reflects accurately the western end crib facilities at that time?‑‑‑It reflects the location of the western end crib facilities, it's not in the full detail of which the western end crib facilities are. But it reflects the location of it.

PN203

Mr Casey, do you see at the bottom of that box – sorry, that rectangle?‑‑‑Yes.

*** JOHN PATRICK CASEY XXN MR SIVARAMAN

PN204

It says B – I think it's "BGC and Lis-Con" – L-i-s-c-o-n?‑‑‑Correct.

PN205

It's not clear what that next word is because it's partly crossed by the line but another entity and then "offices"?‑‑‑Yes.

PN206

That indicates that Lis-Con had their offices at the end of that crib facilities area doesn't it?‑‑‑That indicates that there were offices there with Lis-Con and BGC, yes.

PN207

That would – sorry, I withdraw that. You wouldn't dispute that Lis-Con contractors may have used crib room 11?‑‑‑I'm not aware of who was using crib room 11. I am aware that there was some CFMEU members using crib room 11. I am not sure of which company those persons were employed by.

PN208

If it was the case that it was CFMEU members or Lis-Con contractors that were using that room, you'd accept that those would be people that are not covered by the AMWU would you?‑‑‑My understanding is the AMWU would not have coverage for those people, yes.

PN209

Therefore, in JKC's view it wouldn't be appropriate for the AMWU to speak to people that weren't covered by the AMWU in meetings?‑‑‑It would not be appropriate for the AMWU to have access in a right of entry to persons that they weren't eligible to cover.

PN210

Therefore if those persons that they weren't eligible to cover were using crib room 11 up until June 2015, it wouldn't have been appropriate in JKC's view for the AMWU to meet with its members in crib room 11, would it?‑‑‑No, I don't think that's correct. That is not correct. People can meet in a crib room with their own persons eligible to be members. In a crib room occupied by other persons eligible to be members of other unions it hasn't – we have never insisted on having sole crib rooms for members of each union.

PN211

But you have insisted on the AMWU meeting in rooms only with its members and not going to areas where other members have congregated, haven't you?‑‑‑We have – we have said that unions should not have meetings with people with whom they're not eligible to represent.

PN212

If I could take you to paragraph 40(e) of your statement, Mr Casey?‑‑‑Yes.

*** JOHN PATRICK CASEY XXN MR SIVARAMAN

PN213

In that you refer to a photograph where – which is photograph of the road between the western end crib facilities and a particular construction area, HRSG5, that's correct?‑‑‑Yes.

PN214

You say that there's a road that must be crossed to get to the western end crib facilities to the pedestrian way?‑‑‑Yes, I have, yes.

PN215

It's the case isn't it that on a regular basis workers will cross that road to get to the pedestrian way?‑‑‑Yes.

PN216

That might happen regularly on a day to day basis, doesn't it?‑‑‑Yes.

PN217

Now Mr Dowling asked you some questions and one of the questions he asked you was whether – sorry I'll withdraw that. In about May of last year, do you recall that Mr Wilkins was allocated a crib room for meetings with – for a meeting, sorry, with his members in the western end facilities area?‑‑‑Mr Wilkins to my understanding was allocated an area, an open area in a breezeway where he met with his members on a regular basis.

PN218

That breezeway is adjoined by two crib rooms?‑‑‑Three crib ones.

PN219

One crib room at the back and two on the side?‑‑‑One at the back and two at the side.

PN220

That breezeway, you would accept, is smaller than the crib room in which Mr Wilkins currently meets with his members?‑‑‑Yes, that's correct.

PN221

It's not – that breezeway, sorry, is not air conditioned, as is the room in which Mr Wilkins currently meets with his members?‑‑‑That's correct.

PN222

Your evidence to Mr Dowling was that even if all of the people – in that case it was the – in Mr Dowling's case the CFMEU wanted to meet with could not fit into a room allocated, that wouldn't necessarily cause you – I think that was the words he used – necessarily cause you to change the room that would be allocated, correct?‑‑‑No, that's correct.

PN223

Is your position the same with the AMWU, that is if the room or area that was allocated couldn't accommodate all of the members the AMWU or Mr Wilkins wanted to meet with of the AMWU, that wouldn't necessarily cause you to change the room allocated?‑‑‑That's correct, yes.

*** JOHN PATRICK CASEY XXN MR SIVARAMAN

PN224

That's all, Commissioner, thank you.

PN225

THE COMMISSIONER: Thank you. Mr Murdoch.

PN226

MR MURDOCH: No re-examination. Might Mr Casey be excused.

PN227

THE COMMISSIONER: Thank you, Mr Casey. You're free to go.

<THE WITNESS WITHDREW [11.28 AM]

PN228

Content to press on now, Mr Murdoch?

PN229

MR MURDOCH: Yes, thank you, Commissioner. The next witness is Ms Garland. I call her now.

PN230

THE ASSOCIATE: Thank you, Ms Garland. Can you just remain standing. If you could please state your full name and address.

PN231

MS GARLAND: Jacqueline Lorraine Garland, (address supplied).

<JACQUELINE LORRAINE GARLAND, AFFIRMED [11.29 AM]

EXAMINATION-IN-CHIEF BY MR MURDOCH [11.29 AM]

PN232

THE COMMISSIONER: Good morning, Ms Garland. I'll give you to Mr Murdoch now.

PN233

MR MURDOCH: Yes, thank you, Commissioner. Ms Garland, could you give your full name to the Commission please?‑‑‑Jacqueline Lorraine Garland.

PN234

Your present occupation is what, Ms Garland?‑‑‑Industrial relations consultant.

PN235

Have you provided a statement for use in this proceeding signed by you on 28 August 2015?‑‑‑Yes, I have.

PN236

Do you have a copy of it with you in the witness box?‑‑‑Yes, I do.

*** JACQUELINE LORRAINE GARLAND XN MR MURDOCH

PN237

Now I understand that there are some clarifications that you want to make to that statement. Is that correct?‑‑‑Yes, there is.

PN238

Can I take you first please to paragraph 31. Do you have that?‑‑‑Yes.

PN239

Do you wish to change in the third line of paragraph 31 the word "relevantly" to the word "relatively"?‑‑‑Yes.

PN240

Can I ask you then please to look at paragraph 32 and do you wish to make the same change in paragraph 32, that is in the third line to change the word "relevantly" to the word "relatively"?‑‑‑Yes.

PN241

Then could I ask you to go to paragraph 68?‑‑‑Yes.

PN242

Again, in the third line of paragraph 68, do you wish to change the word "relevantly" to read "relatively"?‑‑‑Yes.

PN243

Then could I next ask you to go please to paragraph 145 and can I ask you whether there is a clarification that you wish to make to paragraph 145?‑‑‑Yes, there is.

PN244

What clarification is that, Ms Garland?‑‑‑To include the words "left of centre" in that last sentence, between "slightly" and - - -

PN245

To insert those words after the word "slightly"?‑‑‑Correct.

PN246

With those clarifications in mind, are the contents of your statement given by you on 28 August 2015 true and correct, to the best of your knowledge and belief?‑‑‑Yes.

PN247

Can I then ask you to confirm that you've also given a statement of reply in this matter?‑‑‑Yes, I have.

PN248

That's a statement signed by you on 23 October 2015?‑‑‑Yes.

PN249

Are the contents of the statement in reply true and correct to the best of your knowledge and belief?‑‑‑Yes.

*** JACQUELINE LORRAINE GARLAND XN MR MURDOCH

PN250

Commissioner, I tender the statement and the statement in reply.

PN251

THE COMMISSIONER: Thank you, Mr Murdoch. I'll admit the statement of Ms Garland dated 28 August 2015 as exhibit 2. I'll admit the statement of Ms Garland dated 23 October 2015 as exhibit 3.

EXHIBIT #2 WITNESS STATEMENT OF JACQUELINE GARLAND DATED 28/08/2015

EXHIBIT #3 WITNESS STATEMENT OF JACQUELINE GARLAND DATED 23/10/2015

PN252

MR MURDOCH: That is the evidence in-chief of Ms Garland. Thank you.

PN253

THE COMMISSIONER: Thank you, Mr Murdoch. Thank you, Mr Dowling.

CROSS-EXAMINATION BY MR DOWLING [11.32 AM]

PN254

MR DOWLING: Ms Garland, can I just confirm your position. Your evidence is that you are the senior employee relations consultant employed by CSNT, is that correct?‑‑‑Yes, it is.

PN255

Before I ask you about that role can I just clarify the entity Construction Services Northern Territory. The best that our searches can turn up is that that entity is in fact a business name held by the West Australian Chamber of Commerce and Industry. Does that accord with your understanding?‑‑‑Yes.

PN256

So should we also understand that – I don't imagine it's a business name that pays your wages so that your wages are in fact paid by the West Australian Chamber of Commerce and Industry. Is that right?‑‑‑Yes.

PN257

So when you say you're employed by CSNT, you really mean to say you are employed by the West Australian Chamber of Commerce and Industry. Is that right?‑‑‑Yes.

PN258

Now your evidence is that it's your role, or part of it at least, to manage union right of entry at the Ichthys project. Is that correct?‑‑‑Yes.

PN259

Should we understand that that role therefore includes supervising the procedures that are to be undertaken prior to coming onto the site?‑‑‑For a union official, yes.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN260

Yes, and ensuring that they fill in the proper forms and carry out the proper induction before they come on the site?‑‑‑Part of, yes.

PN261

That's part of your role. Part of your role is also supervising the right of entry once they are on the site?‑‑‑Yes.

PN262

Is it also correct that part of your role then is liaising with those union officials and dealing with any issues that might arise when they're carrying out that right of entry?‑‑‑Yes.

PN263

Thanks very much. Now you've given some evidence and I think Ms Richards has also given some evidence, is it correct that on 10 June you understood that union officials had met with their members in what's referred to as the electrical stores area. They had previously met in the electrical stores area?‑‑‑In the stores location, yes.

PN264

You understood that that had taken - - -?‑‑‑Sorry, could you just ask that again?

PN265

You're aware that union officials had met with their members in the stores area prior to 10 June?‑‑‑No, I wasn't.

PN266

You weren't on 10 June, you are now?‑‑‑I am now – I'm not aware that they'd met in the stores area prior to the day, 10 June.

PN267

You certainly weren't on 10 June, I think your evidence is. Have you had some discussion with, say, Ms Richards or anyone else who has confirmed to you that yes, they have met there – they did meet there prior to 10 June. Has that been told to you - - -?‑‑‑It hasn't been confirmed to me, no.

PN268

Does it surprise you then that Ms Richards and Mr Lee give evidence that that is in fact the case?‑‑‑And that maybe the case if they have done those right of entries.

PN269

Now if we can deal for the moment with 10 June and the CFMEU official, which was Mr Cummins on 10 June. It's your recollection, is it correct, that he was allocated the training room in the eastern end of the area we're talking about?‑‑‑Yes.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN270

Now as part of your role as senior employee relations consultant, responsible for managing union right of entry, did you familiarise yourself with the provisions of the Fair Work Act about right of entry?‑‑‑I am familiar, yes.

PN271

You were on 10 June?‑‑‑Yes.

PN272

Were you familiar with those provisions that talked about meeting rooms and what should happen if there was not an agreement on a meeting room?‑‑‑Yes.

PN273

Does that mean you are familiar with that provision of the Act that says if there is not an agreement on the meeting room, it should be a room in which one or more persons who are to be involved in the discussions ordinarily take their meal or other breaks?‑‑‑Yes.

PN274

You were familiar with that on 10 June?‑‑‑Yes.

PN275

Now should I take it from the events that transpired on 10 June that it became clear to you that Mr Cummins did not agree that he would meet in the training room?‑‑‑Yes.

PN276

So you understood for the purposes of the provision of the Act that I'm talking about there was no agreement on the training room being a meeting room?‑‑‑The training room was allocated. Mr Cummins chose to go to the stores location.

PN277

The training room was allocated and Mr Cummins did not agree that that was a suitable room in which to meet. Is that a fair assessment?‑‑‑He did not say that. He said he wanted to meet in the stores area.

PN278

You were under no misunderstanding as to what happened on the 10th, that Mr Cummins did not want to go to the training room and did not agree that that was the appropriate room?‑‑‑He did not want to go to the training room, yes.

PN279

You understood that?‑‑‑Yes.

PN280

Is it fair to say then that you also understood that there was no agreement between you and him that the training room was the appropriate room to meet?‑‑‑Could you ask that question again please?

PN281

It's not a trick question?‑‑‑No, no.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN282

The result - - -?‑‑‑I'm just - I just want to be able to understand what exactly you're asking me.

PN283

The results of your discussions with Mr Cummins on this day, on 10 June?‑‑‑Yes.

PN284

Became clear to both of you that you were not agreeing that the training room would be the location where the CFMEU were going to meet with its members?‑‑‑He was not agreeing with that, yes.

PN285

So from your familiarity with the Act, didn't that say to you well we've not got agreement on the training room so there will have to be an alternative room and the alternative room should be, according to the Act, a room in which the CFMEU members take their crib, their meal or other breaks?‑‑‑That could have been an option, yes.

PN286

But it wasn't an option that you presented to Mr Cummins, was it?‑‑‑At the time, no.

PN287

Did you then understand at the time that you were not complying with section 492 of the Act?‑‑‑No, I was dealing with the matter at hand.

PN288

Do you understand now that you have not complied with section 492 of the Act?‑‑‑(No audible reply)

PN289

You didn't - well let me - - -?‑‑‑It was not a discussion that occurred on that day in order to comply with it.

PN290

Let me put the question a different way. You've agreed with me that there was no agreement that the training room was where they were going to meet, and you agree with me do you that you did not offer Mr Cummins an alternative room which was a room in which members of the CFMEU normally take their meal or other break?‑‑‑That was not offered at the time.

PN291

Is it fair to say that you didn't offer that on 12 June either?‑‑‑Correct.

PN292

Was it your position on 10 June that the training room was appropriate or was that just you were told that so you were just following instructions?‑‑‑That's the room that the CFMEU had met in previously and that is the room that UGL had said to me the meeting will take place.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN293

Did you have a view as to whether that room was appropriate for - let's say there were going to be 50 CFMEU union members. Did you have a view as to whether that room would appropriate?‑‑‑I would think that that would be a reasonable room.

PN294

Have you been in there lately?‑‑‑I have been in the training room.

PN295

Can I suggest to you that there are 16 chairs in that room. Do you agree with that?‑‑‑Approximately, yes.

PN296

Do you agree with me that there are two adjoining internal offices in that room? That are - sorry, I'll let you answer one question at a time?‑‑‑That's okay.

PN297

At the back of the room - - -?‑‑‑At the back of the room, yes.

PN298

Yes, there's two adjoining internal rooms. Do you agree with that?‑‑‑I don't know that there's two but I do believe there is space at the back for offices, yes. I haven't been in those but yes.

PN299

Can I suggest to you - tell me if you don't know but they are used for training, admin and other managerial staff?‑‑‑I don't know what they're used for.

PN300

Can I suggest to you that that training room has training equipment, screens, projectors, handouts?‑‑‑Yes.

PN301

I assume, given it's a training room, that you agree with me there's certainly no crib facilities in it. There's no - by that I mean there's no meal facilities, nothing for heating - preparing meals or anything of that sort?‑‑‑I don't know if there is or isn't.

PN302

Knowing that - if you assume for the purposes of my question that there are 50 to 60 union members wanting to meet in this room, knowing what you do about the number of chairs in the room, the adjoining internal offices, the training equipment in the room, can I suggest to you that that clearly was not an appropriate room on 10 June. Do you agree with that?‑‑‑No, I don't.

PN303

Did you make the decision as to whether that room would be allocated or was that made by someone else?‑‑‑It was made by someone else.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN304

Was that made by Ms Richards?‑‑‑It's made by UGL. I'm just told, I don't know who makes the decision from UGL.

PN305

Are you involved in the decision as to the allocation, or you're just told and you have to carry out the instructions?‑‑‑In this case we were just told.

PN306

Sorry, you said in this case. Does that mean in some cases you're a participant in the discussion about the allocation and some you're not?‑‑‑Yes. Yes.

PN307

Is there any reason that you're aware of that you were not involved in this discussion as to the allocation of the room for any of the unions on this day, 10 June?‑‑‑Because it was a stock standard visit, the CFMEU go to the training room, so it was not unknown to me that that would be the location.

PN308

I'm not asking for your view about what type of visit you thought it was. I'm asking whether anyone said to you this is why you will not be involved in the discussion about what rooms will be allocated?‑‑‑No. No.

PN309

Now I think you said Ms Richards is the person - sorry, your evidence is someone from UGL, you're not sure is that right whether it was Ms Richards or - - -?‑‑‑On 10 June I was told by Jack Newton. I don't know who made the decision. I was told by Jack Newton, a representative of UGL.

PN310

Are you aware that Ms Richards from UGL, on the morning of 10 June, had a discussion with Mr Springer - Mr Paul Springer who's an AMWU delegate?‑‑‑I'm not aware.

PN311

Can I tell you, to see if this changes your memory, that Ms Richards will give some evidence that she had a discussion with Mr Springer in which he conveyed the desire and the intention of union members to meet in the stores area, on that day, 10 June?‑‑‑I'm not aware of that.

PN312

She did not have any discussion with you about the discussion that she'd had with Mr Springer?‑‑‑No.

PN313

Has she had any discussion with you since 10 June about the discussion she had with Mr Springer?‑‑‑No.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN314

Did Mr Newton have any discussion about what Ms Richards might have said arising from her conversation with Mr Springer?‑‑‑No.

PN315

Did you know on 10 June or was it conveyed to you how many union members might be meeting on that day, for each of the unions? What sort of numbers there were going to be?‑‑‑No.

PN316

Nobody conveyed that to you?‑‑‑No.

PN317

Is that the sort of information that you'd normally ask for?‑‑‑No.

PN318

Do you accept that it's going to be relevant information because a room that might be appropriate for 10 might not be a room that's appropriate for 100. Do you agree with that?‑‑‑Yes.

PN319

So isn't it something that you would as a matter of prudence try and find out, how many are going to meet so I know what do I need to accommodate?‑‑‑Not all the time, no.

PN320

You don't ask?‑‑‑No.

PN321

Sometimes you do and sometimes you don't?‑‑‑No.

PN322

You don't ask. You never ask?‑‑‑We ask what number of employees are in the locations and what group facilities they have. We don't ask about members.

PN323

So when you are the person facilitating the meeting, you come the morning of the meeting or the afternoon of the meeting have no idea as to how many people are going to be at the meeting?‑‑‑We know the number of workers in that area. We don't know how many will attend the meeting.

PN324

So when you say you know the numbers of the workers in that area, you know what the maximum - do you know the sort of union density?‑‑‑I don't, no.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN325

Should we understand then that if you don't know the numbers of people that are going to meet, that you adopt a relatively flexible approach because you might have been - you might have allocated a room that clearly only seats 20 or maybe can accommodate 30 or 40. Next thing you know you've got 150 behind you which you didn't know prior to the meeting, that you then say oh well, clearly this room's not going to be appropriate, we've got to do something about it and we'll move?‑‑‑We have that discussion with the subcontractor.

PN326

Presumably with the official as well?‑‑‑Yes. So if it's identified and if there is a solution that's able to be accommodated, it has in the past been accommodated.

PN327

But it's inevitable that you're going to have to be practical I suppose, when you don't know how many members are going to be coming?‑‑‑Yes.

PN328

So it's not - can I suggest to you it wouldn't be good practice just to say you've been allocated this room. I don't care how many members you've got or what's going on, that's your room, that's the end of the story. That would not be good practice would it?‑‑‑Occasionally that has happened.

PN329

I'm suggesting to you it would not be good practice. Do you agree?‑‑‑It depends what facilities are available, so I don't agree.

PN330

Can I deal with, you were the person responsible for signing in the officials - when I say signing in I mean carrying out the full sign in and induction process, and I'll deal with as much as I can each step separately, the officials on 10 June. Is that right?‑‑‑Yes.

PN331

Now, I think it's you evidence but please confirm it for me. That each of the officials on that day signed in at the office?‑‑‑Yes, I signed in - this is for Paul Kirby and Rowland Cummins - sorry, Michael Haire and Rowland Cummins on 10 June.

PN332

So the first step in the process is they're signed in and you did that for both Mr Haire and Mr Cummins?‑‑‑Yes.

PN333

They are also and were also required to complete visitor access forms?‑‑‑Yes.

PN334

They did that on 10 June?‑‑‑Yes.

PN335

They were also required to complete the induction and they did that on 10 June?‑‑‑the induction as in they fill out their visitor access and they tick the induction and we sign off on it, yes.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN336

Yes. I take it, although you don't say anything about it I don't think, but there was - they were all - they were both, sorry, wearing all of the appropriate PPN?‑‑‑I believe they would have been, yes.

PN337

There's certainly no reason for you to doubt that they were?‑‑‑No.

PN338

You don't record any suggestion that they were not or that there was any problem?‑‑‑No.

PN339

I think it's your evidence also that when they get to the UGL area they sign in there as well?‑‑‑Yes.

PN340

Now is it fair to say that all of that was done without any issue, no problems with any of that?‑‑‑Yes.

PN341

That was all done in a civil and polite manner?‑‑‑Yes.

PN342

You certainly don't record and I suggest to you it didn't occur, there was never any argument about that, there was never any swearing, there was never any physical contact of any sort at any stage on 10 June?‑‑‑Are we still talking about the sign in?

PN343

I'm talking about the whole day now?‑‑‑Sorry, what was that? No physical contact, yes.

PN344

In terms of the meeting that occurred, I'll come back to the events before the meeting but in terms of the meeting that occurred, as I understand it from your evidence that started at about 2 pm or shortly thereafter. Is that right?‑‑‑Correct.

PN345

Just so the Commissioner is clear, the lunch break for these people is - for the people attending the meeting - is 2 to 2.30?‑‑‑Correct.

PN346

So it certainly didn't start before their lunch break but we're all clear on that?‑‑‑That's right.

PN347

In terms of Mr Cummins and Mr Haire, as I understand your evidence both those two officials left the meeting before 2.30?‑‑‑Yes.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN348

There's some dispute as to whether it was 2.21 or 2.22 or 2.23 it seems to me but one of those - at about - somewhere in-between 20 past 2 and 23 past 2 they leave the meeting?‑‑‑Yes.

PN349

So there's no suggestion at all that they are there after the time at which those workers are required to return to work?‑‑‑No.

PN350

I think when they leave the meeting they come to talk to people including you, and ultimately it's agreed that you together with them will go to the gate of the whole project to further discuss any issues?‑‑‑Yes.

PN351

They agree to do that?‑‑‑They did.

PN352

Now can I go back just a moment to before 2 pm. We have discussed in your evidence that there was a disagreement between you and Mr Cummins about whether they would meet in the training room. You recall that?‑‑‑Yes.

PN353

You were speaking to him about that being the allocated room for him?‑‑‑Yes.

PN354

You said that to him more than once, should I take - is that correct?‑‑‑Yes.

PN355

Should I understand that in those circumstances that save the meeting that he was in during the other times, save for the meeting and after the meeting, during the time before 2 pm he was always within your earshot. In other words, if you were to say something to him he was close enough to hear it?‑‑‑I believe so, yes.

PN356

He was also within your line of sight. You could see him at all times, I think your evidence is, including when he was in the meeting because you could see your line of sight to the meeting. Is that right?‑‑‑At the meeting in the stores?

PN357

Yes?‑‑‑No. I was just outside that, I couldn't see him directly in the meeting.

PN358

Well let's deal with - - -?‑‑‑That was early.

PN359

Let's deal with it one step at a time then?‑‑‑Yes.

PN360

Up until the meeting, until 2 pm he's always within your line of sight?‑‑‑Yes.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN361

Then when he goes into the meeting he's out of your line of sight, but I think you can say - I think you say - I might be confusing the 10th and the 12th so correct me if I'm wrong. You can see the access and egress points of the meeting?‑‑‑Yes.

PN362

You might not be able to see him personally but you can see how you get into the meeting and how you get out of the meeting?‑‑‑Yes.

PN363

So at all times up until 2.21 or 2.22 or 2.23, you can either see him personally or he's in the meeting and you can see the access or egress?‑‑‑Yes.

PN364

Now in respect of the meeting in the stores area, you're not close enough to hear what's being said in that meeting?‑‑‑No.

PN365

You don't know who's saying what and who's talking to who in that meeting?‑‑‑Correct.

PN366

As I understand it, there's some complaint made against Mr Cummins that there might be AMWU members in that meeting. You knew of course on 10 June that Mr Wilkins who was their office was down the other end of the facility, didn't you?‑‑‑Yes.

PN367

I think you knew at some point that he didn't even get out of the car that Mr Lee had him in, so he didn't even get to tell his members where they should or shouldn't be. Is that fair enough?‑‑‑I knew at some point that Brian was not at his meeting, yes.

PN368

He never got to speak at any stage to any AMWU member that might have been in the stores area?‑‑‑Not in the location where I was, no.

PN369

Can I ask you about - just in terms of activity and traffic on 10 June. I know it's a bit hard to remember I'm sure, but I think you give some evidence about activity and traffic on the 12th. Should we understand - is it fair to understand that the activity on the 12th is about the same as the activity on the 10th?‑‑‑In the stores location?

PN370

Yes, in the stores, west end, east end and thereabouts, around that area?‑‑‑In the location I was, I would say the activity was around the same.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN371

Thank you. Now I think in terms of - sorry to take you out of order a bit but if I can now go back to 2.21, 2.22 or 2.23, where Mr Cummins and Mr Haire come back to you, and as I understand it what they say is the members want some answers about some issues and we'd like to give them some answers now. Is that - paraphrasing but is that a fair assessment of what you understood they were conveying to you?‑‑‑They said they wanted to have a meeting now with management on the issues.

PN372

To be able to take some answers back to the members before 2.30?‑‑‑Yes, that's - I mean that's why they wanted to have a meeting then.

PN373

I think your evidence is you don't know all of the issues that were alive but you did know one of the things they wanted to know about was whether UGL were going to pay the LAFHA?‑‑‑Yes.

PN374

By the LAFHA I mean the living away from home allowance?‑‑‑I was aware of that issue, yes.

PN375

So you knew at least that issue. One of the things they wanted an answer about was whether UGL were going to pay the LAFHA?‑‑‑That's one issue, yes.

PN376

Is there any reason why, to the best of your knowledge and I appreciate you're not a UGL employee so tell us if you don't know, why UGL didn't have a position that they could answer on immediately about the LAFHA; yes, no, maybe?‑‑‑I don't know.

PN377

You don't know. Now can I ask you about whether you know anything about the events of the following day, 11 June?‑‑‑Um - - -

PN378

Before I - I'm going to ask you some specific questions rather than that general one. You are aware that Mr Cummins and Mr Haire returned on 11 June?‑‑‑I am aware, yes.

PN379

You're aware that they meet with at least the evidence tells us with Mr Spratt, Mr Gittus and Ms Richards?‑‑‑I'm not aware that the meeting occurred.

PN380

Did you play any part in their induction or sign in on the 11th?‑‑‑No.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN381

Have you had since the events of 11 June, any discussion with Ms Richards about what occurred with Mr Cummins and Mr Haire on that day, 11 June?‑‑‑No, I haven't.

PN382

She'll give some evidence that Mr Haire and Mr Cummins and Mr Wilkins, I should say, wanted to meet with UGL and wanted to meet together with their delegates, and they were refused - the delegates were not permitted to be involved in that meeting. Is that something you know anything about?‑‑‑I'm not aware of anything on the meeting that day. I wasn't a party to it.

PN383

Nobody's discussed with you why it is the delegates were not allowed to participate in that meeting?‑‑‑No, no.

PN384

Thank you. Can I ask you then - can I move to 12 June. I think in respect of 10 June you said Mr Newton conveyed the allocated meeting room and you're not sure who was the person that made the decision. Who was it that conveyed the meeting rooms that would be allocated on 12 June?‑‑‑(No audible reply).

PN385

Was it Ms Richards?‑‑‑I think it might - I think it was Ms Richards, yes.

PN386

Did she explain to you as part of that allocation why it was that particular rooms were being allocated to particular unions?‑‑‑No.

PN387

Did you ask her?‑‑‑No.

PN388

Did you ask her whether she had any expectation as to what the numbers might be?‑‑‑No.

PN389

Did you ask her whether the events that occurred on 10 June might repeat themselves on 12 June?‑‑‑We had a discussion about the risk.

PN390

What did she say?‑‑‑It was - I'm just trying to - it was just about it might happen, we'll see but it was the training room and crib 4 allocated again.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN391

Does that mean from the evidence you gave earlier that given it was the training room, if you were presented on 12 June with a large number of CFMEU members, for example, that you had the ability to say or to change the room or was your position going to be Ms Richards had told me it's the training room, it's the training room. Whatever Mr Cummins says or however many members there are, I'm going to tell them it's the training room. Is that the position you adopted?‑‑‑The position was the training room.

PN392

You're nodding your head so - - -?‑‑‑Yes. That's what I'm saying, yes, the position was the training room and that would be the location.

PN393

That was going to be the location regardless?‑‑‑For the meeting, yes.

PN394

Does that accord with your discussion with Ms Richards? By that I mean did she say to you don't worry about how many members there are, whatever it is Ms Cummins says, that's the meeting room, that's the end of the story?‑‑‑No.

PN395

Is that what you understood her to be conveying, that that - - -?‑‑‑I understood it would be the training room.

PN396

There was some ability to change it or not?‑‑‑It was the training room. There was no discussion about it being the default crib location. It was the training room and that was the location.

PN397

Did you understand that you had some ability to change it if it became obvious that that was not going to be practical?‑‑‑I understand that. I understand that.

PN398

Did you understand it on the 12th, that you had the ability to change it?‑‑‑Yes.

PN399

You didn't?‑‑‑No.

PN400

You were the person responsible for signing in Mr Cummins and Mr Haire again on the 12th?‑‑‑Mr Cummins and Mr Kirby.

PN401

Sorry, Mr Kirby, thank you?‑‑‑Yes.

PN402

Mr Cummins and Mr Kirby. Now can I just clarify in respect of both Mr Cummins and Mr Kirby again on the 12th. You signed both of them in at the office as the first step?‑‑‑I signed Mr Cummins in earlier in the day. He had a previous right of entry?‑‑‑Yes.

PN403

I signed Mr Cummins in later in the day. I had retained Mr Cummins' visitor pass for the afternoon entry.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN404

Well perhaps - putting aside then whether it's the morning or the afternoon, at some stage during that day you signed both of them in?‑‑‑Yes, I did.

PN405

At some stage during that day both had completed the visitor access forms?‑‑‑Yes.

PN406

Both had completed the induction, ticked off on the induction?‑‑‑Yes.

PN407

Again, both were wearing all the relevant PPE?‑‑‑Yes.

PN408

Both also further signed in at the UGL office on that day?‑‑‑Yes.

PN409

Again, should we understand that all of that was done without any issue?‑‑‑Yes.

PN410

Again, all of that was done in a civil and polite manner?‑‑‑Yes.

PN411

Again, on the 12th there was and there has been no suggestion in the material, any abusive language, any argument, any inappropriate language or any physical altercation on the 12th?‑‑‑Correct.

PN412

You did as I understand it do one additional thing on the 12th that you didn't do on the 10th, and that is that you were asked Mr Cummins for I think what you call his safety permit and his federal permit. Do you recall doing that on the 12th?‑‑‑Yes.

PN413

By his safety permit you mean the permit issued to him under the Workplace Health and Safety Act?‑‑‑Yes.

PN414

Is it correct that he provided that to you?‑‑‑Yes, he did.

PN415

Again, there was no dispute about that, he simply showed it to you when you requested it?‑‑‑Yes.

PN416

His federal permit, I take it you mean his right of entry permit issued under the Fair Work Act?‑‑‑Yes.

PN417

You sought that also?‑‑‑Yes.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN418

Again, he provided that to you without any dispute when you requested it?‑‑‑Yes, he did.

PN419

Had you seen both of those things before, had you requested both of those things from Mr Cummins previously?‑‑‑Yes. Yes, I have.

PN420

Did you have any reason to believe that they were not still valid?‑‑‑No, I didn't.

PN421

Why is it that you asked to see them again?‑‑‑Because he issued a section 117 notice for production of documents.

PN422

Is that your practice that even though you know they've got a safety permit and a federal permit, and even though you might have seen it the day before or the morning of, as soon as you see a 117 you ask to see it again?‑‑‑Yes, I do.

PN423

Is there a reason for that?‑‑‑Because it's a requirement for them to provide it.

PN424

It's only a requirement for them to provide it if they're asked for it. You understand that?‑‑‑Yes.

PN425

You don't have to ask for it every time do you?‑‑‑No.

PN426

But you do, do you?‑‑‑Yes, we do.

PN427

Even though you know they've already got it?‑‑‑Yes, I do.

PN428

Do you think that's helpful?‑‑‑I think it's part of our process.

PN429

Can I ask you then, I asked you some questions about where it was that Mr Cummins and Mr Haire - sorry, yes, I asked you questions about Mr Cummins and Mr Haire in respect of the 10th. Can I ask you in respect of Mr Cummins on the 12th, should I understand as was the case for the 10th, again you were saying to him that the training room was allocated to him, yes?‑‑‑I didn't say that to him on that day. I didn't have a chance to.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN430

Can I suggest to you from reading your evidence that what it was that you were saying to him suggests again also that he was within earshot, other than the time that he was in the meeting on 12 June?‑‑‑Yes.

PN431

Again, other than the time he was in the meeting, he was within your line of sight?‑‑‑Yes. Sorry, on 12 June?

PN432

Yes?‑‑‑He walked out of my line of sight when we were signing in.

PN433

Well I suggest to you that that's not the case. You could always see him apart from the time that he was the meeting. He never got far enough away that you couldn't see him. That's what I'm going to suggest the evidence will show?‑‑‑For a short period of time when he walked out the door I was still signing in with Kirby and I could not see Mr Cummins.

PN434

Are you talking about for a second or two when he was on the other side of the door?‑‑‑When he walked down the thoroughfare, he walked outside the door and walked down the thoroughfare.

PN435

I understand that you walk out the door and you yell out Roly, is that right?‑‑‑I did, after I had signed in - - -

PN436

You can see him when you - you can see him when you yell out Roly. Is that right?‑‑‑Yes, I can.

PN437

I think just to clarify in respect of the meeting. Can you confirm for me that as was the case with the 10th, the position on the 12th is that you could see and monitor the entry and exit point of the meeting in the stores area where there was a meeting taking place on that day?‑‑‑For the 12th?

PN438

Yes?‑‑‑Yes.

PN439

Can I also ask you in respect of the 12th, you gave some evidence in your second statement about - in response to something that Mr Cummins had to say, and you said in your evidence:

PN440

I agree that Mr Cummins and I did have a conversation about checking with UGL regarding the stores, given his assertion that he had met with members of the stores before.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN441

So should we understand that he said look we've met there before, and you said look, I'll check with UGL?‑‑‑That was a comment made in the car, yes.

PN442

Did you check?‑‑‑I had asked Daniel when I went back to the office and I can't remember if I had asked Amy or Daniel asked Amy.

PN443

I'm not sure what the answer is. You told - - -?‑‑‑Yes, I did check - - -

PN444

You did check, you did check - - -?‑‑‑ - - - but whether I checked - whether I checked directly with Amy or Daniel checked, that's what I can't quite remember.

PN445

I see. What was the answer you got?‑‑‑I believed that they hadn't met in the stores. I'm just trying to remember if they had or not.

PN446

Ms Richards and - - -?‑‑‑I didn't ask - I don't - I'm just trying to recall the conversation that I had. I had asked if they had met in the stores.

PN447

You asked one of Mr Lee or Ms Richards?‑‑‑I think I asked Daniel and I believe that they hadn't, and then we would have checked with Amy.

PN448

Did you check with Amy?‑‑‑I don't think I did, I think it might have been Daniel.

PN449

Did he get back to you?‑‑‑I had heard that they may have but I hadn't had any confirmation of that myself directly.

PN450

Did you not want to take the extra step and find out from Ms Richards whether they had and go back to Mr Cummins?‑‑‑No, I didn't go back to Mr Cummins on that one.

PN451

Is there a reason you didn't go back to Mr Cummins?‑‑‑I just - I didn't at the time.

PN452

You say to him - you say to him you're check?‑‑‑Yes, I know I did.

PN453

You don't go back to him and - - -?‑‑‑No, I didn't on that matter.

PN454

You don't know why?‑‑‑No.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN455

I think you also say you deny that Mr Cummins told you the meeting room was too small or inadequate. Can I suggest to you now looking back after the events, knowing what you do know about the training room, that you accept it is inadequate?‑‑‑No, I don't.

PN456

You think it's adequate for 50 plus people to go into a room that has 16 seats and no lunching facilities? Is that your evidence?‑‑‑I believe that approximately 50 plus people could be in that room. I have seen meetings in that room and they don't sit down in chairs, they all stand around.

PN457

Have you attended union meetings, have you?‑‑‑No, I haven't.

PN458

Well then you wouldn't know, would you?‑‑‑I have seen the numbers that walk in.

PN459

If you're out working on that site all day, having been there, I imagine you'd want to sit down and have your lunch wouldn't you?‑‑‑(No audible reply).

PN460

You don't know?‑‑‑You may.

PN461

But for whatever reason, there was a decision made by UGL that the training room was not going to stay as the CFMEU room, because we know that's now changed don't we?‑‑‑I don't know.

PN462

You don't know?‑‑‑I don't know about that decision being made.

PN463

Do you now know that the CFMEU do not meet in the training room?‑‑‑I did not know that.

PN464

Right. And should we understand then that you played no role in the - - -?‑‑‑Yes.

PN465

Sorry?‑‑‑Sorry.

PN466

You wanted to say something?‑‑‑I will just correct – if we're talking about the eastern end, okay. I know that the CFMEU meeting 19B – it's another location that has now been put in place since then. Sorry, just to clarify that.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN467

Okay. All right. So you do know that the CFMEU no longer meet in the training room?‑‑‑Correct.

PN468

All right?‑‑‑They meet in 19B.

PN469

And I will have some questions about where they meet now, just out of fairness?‑‑‑That's fine.

PN470

But I just want to just clarify whether there's anything you can assist the Commission with about that discussion about why the training room was not going to stay as the CFMEU meeting room. Was there any communication with you about, look, it's not going to be the training room anymore; it's going to be somewhere else?‑‑‑We're advised of where the meetings now take place by UGL. My understanding is it had moved to 19B because the workforce had moved to that location. So now the crib location for that workforce is in a different area.

PN471

Perhaps I will be a bit clearer. Was there any discussion with you from anyone from UGL – Ms Richards, Mr Lee, Mr Spratt – to explain to you why it is they made the decision to move from the training room? Did they have a discussion with you about it?‑‑‑No.

PN472

All right. Now, can I just clarify, so we're all on the same page, about where the CFMEU currently meet, to the best of your understanding. Can I suggest to you that the CFMEU now meet in what's called lay down 1?‑‑‑Yes.

PN473

Okay. And they are in a crib room at lay down 1 called crib room 3?‑‑‑I'm not sure of the number but I do know that it's in that location.

PN474

Okay. Have you seen inside crib room 3?‑‑‑I have.

PN475

All right. Can I suggest to you that it is at least four times the size of the training room?‑‑‑It's larger than the training room.

PN476

Can I suggest to you that it is four times the size of the training room?‑‑‑I don't know if it's four times the size of the training room but I know it is significantly larger.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN477

You agree that it's significantly larger. All right. Can I suggest to you that the CFMEU have met in crib room number 3 at lay down yard 1 since shortly after June of 2015?‑‑‑They have met in there after that time; I can't recall exactly when.

PN478

I'm putting to you that they have met there approximately 14 to 15 times since June of 2015. And by "there" I mean crib room 3 and lay down 1. Does that accord with your understanding?‑‑‑Without looking at my records, I would not know the numbers.

PN479

Okay?‑‑‑So I can't agree that it has been 14 times and it has been since June.

PN480

All right?‑‑‑I would not – without looking at that information.

PN481

Can I ask you to estimate how many times, to the best of your understanding, you think they have met in crib room 3 at lay down 1 since June of 2015?‑‑‑I can say that I have probably escorted them there approximately maybe six to seven times that I have escorted them.

PN482

Okay. And can you confirm then that on those six or seven times approximately that you've escorted them to crib room 3 and lay down 1, there have not been any incidents of any kind in respect of the suitability of that room?‑‑‑Not when I have escorted them, no.

PN483

All right. And can I suggest to you that – tell me if you don't know – that they are satisfied with meeting in crib room 3 and lay down 1. Is that consistent with your experience?‑‑‑They haven't complained.

PN484

Okay. Thank you. And can I suggest to you also that there has been nothing that could be described in any way as a joint meeting in respect of unions held since June of 2015. Is that correct?‑‑‑Through UGL, correct, yes.

PN485

Now, can I deal them with the CEPU. Do you know where they now meet?‑‑‑Yes.

PN486

And can you tell the Commission?‑‑‑They meet in the – as you describe it, the laydown yard which is the 19B location.

PN487

And is it correct that they also meet in a large crib room the same as and adjacent to crib room 3?‑‑‑As I said, I'm not sure of the crib room numbers in that location but it is in the same vicinity.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN488

And it's the same size?‑‑‑Yes, approximately the same size.

PN489

So I think on 10 June they were allocated crib room 4 in the east end. Can I suggest to you that the crib room we're now talking about for the CEPU is in excess of five times the size of crib room 4?‑‑‑Again, I can't say if it's five times but it's significantly larger than the previous crib room.

PN490

Can I suggest to you that crib room 4 has seating for 20, and their current crib room has seating for in excess of 80 people. Is that in accord with your understanding?‑‑‑I would say that would – yes, approximately around that. I would say 60 to 70, so – yes.

PN491

Well, I counted 84 chairs in there yesterday, so - - -?‑‑‑There you go.

PN492

So is that consistent with your recollection?‑‑‑I didn't count the 84 chairs.

PN493

All right. But I'm just asking you whether that's consistent with your general understanding of the size of the rooms we're talking about?‑‑‑As I said, approximately about 60 to 70, but if there's 84 chairs, then - - -

PN494

All right. And can I suggest to you that the CEPU or the electrical division of the CEPU have met in the crib room we're describing, approximately seven times since June of 2015?‑‑‑I can't confirm that number.

PN495

And are you able to say to the Commission whether you have escorted officials from the ETU to the crib room we are talking about?‑‑‑I have escorted ETU officials to that crib room.

PN496

And on how many occasions?‑‑‑Approximately three that I've done.

PN497

All right. And is it correct to say that there were no incidents at all about the suitability or otherwise, when you escorted them to the meeting room in that crib facility?‑‑‑Correct.

PN498

Thank you. And is it correct to say from what you have experienced in those visits that the CEPU electrical division are satisfied with meeting in that crib room facility?‑‑‑They haven't complained either.

*** JACQUELINE LORRAINE GARLAND XXN MR DOWLING

PN499

All right. Thank you. And is it correct to say that in respect of this part of the site, there has been nothing that could be described as a joint meeting involving the CEPU or the CFMEU or the AMWU since June of 2015?‑‑‑Not in that location, no.

PN500

All right. Thank you. Nothing further, Commissioner.

PN501

THE COMMISSIONER: Thank you, Mr Dowling.

PN502

MR SIVARAMAN: Nothing, your Honour.

PN503

THE COMMISSIONER: Mr Murdoch.

RE-EXAMINATION BY MR MURDOCH [12.23 PM]

PN504

MR MURDOCH: Yes. Thank you, your Honour. Ms Garland, just taking you back to 10 June, you were asked some questions in respect of whether the crib room for the CFMEU could have been an option. And your answer was that it wasn't the option presented. Do you recall saying that?‑‑‑Yes.

PN505

Can you tell the Commission why, on 10 June, the crib room wasn't the option presented?‑‑‑Because the statements made were that the training room was too small, and the crib room was smaller.

PN506

Yes. Nothing further. Might the witness be excused?

PN507

THE COMMISSIONER: Yes. Thank you, Ms Garland. You're free to go.

<THE WITNESS WITHDREW [12.24 PM]

PN508

THE COMMISSIONER: All right, gentlemen. It's about 20 past 12. What's your view? Do you want to press on for the next witness now or - - -

PN509

MR MURDOCH: Well, how long – could you just excuse me a moment?

PN510

THE COMMISSIONER: Sure. Take your time.

PN511

MR MURDOCH: Just excuse me a moment again.

*** JACQUELINE LORRAINE GARLAND RXN MR MURDOCH

PN512

THE COMMISSIONER: Yes.

PN513

MR MURDOCH: My learned friend has indicated that he might not finish Mr Spratt's cross-examination before the normal lunchtime adjournment time, but I'm content to proceed with him in any event, and if he's not finished over lunch, well, so be it.

PN514

THE COMMISSIONER: All right, then.

PN515

MR DOWLING: I am too, Commissioner. I only said that so as I didn't want to inconvenience my friend if their client was caught in the middle of cross-examination over lunch, but it doesn't bother me if we go ahead.

PN516

THE COMMISSIONER: All right. Thanks, gentlemen, let's press on.

PN517

MR MURDOCH: Yes. I call Mr Spratt.

<SIMON SPRATT, SWORN [12.26 PM]

EXAMINATION-IN-CHIEF BY MR MURDOCH [12.26 PM]

PN518

THE COMMISSIONER: Good afternoon, Mr Spratt. I'm Commissioner Simpson. I will give you to Mr Murdoch now.

PN519

MR MURDOCH: Mr Spratt, can you give your full name to the Commission, please?‑‑‑Simon Spratt.

PN520

Now, what's your present occupation, Mr Spratt?‑‑‑I'm the site manager for UGL CHM JV.

PN521

Now, have you provided a statement given by you on 5 September 2015 for use in this proceeding?‑‑‑Correct.

PN522

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

PN523

I tender Mr Spratt's statement, Commissioner.

*** SIMON SPRATT XN MR MURDOCH

PN524

THE COMMISSIONER: I will admit the statement of Simon Spratt dated 28 August 2015 as exhibit 4.

EXHIBIT #4 WITNESS STATEMENT OF SIMON SPRATT DATED 28/08/2015

PN525

MR MURDOCH: And that is the evidence-in-chief of Mr Spratt, may it please the Commission.

PN526

THE COMMISSIONER: Mr Dowling.

CROSS-EXAMINATION BY MR DOWLING [12.28 PM]

PN527

MR DOWLING: Thank you, Commissioner. Mr Spratt, if I might just first clarify your role and the responsibilities included in your role?‑‑‑Sure.

PN528

You have described in your evidence that you are the UGL CH 2M joint venture site manager. That's correct?‑‑‑That's correct.

PN529

It was correct at the time of your statement and is still correct?‑‑‑That's correct.

PN530

Employed by UGL Engineering Proprietary Limited?‑‑‑That's correct.

PN531

As the joint venture site manager, your evidence is that you are responsible for I think what you describe as day-to-day site management of CCPP?‑‑‑That's correct.

PN532

And it's also your evidence that included in those day-to-day site management responsibilities are the management of matters including safety, environment and human resources issues?‑‑‑That's correct.

PN533

Should we understand that when you say human resources issues, that that covers right of entry issues?‑‑‑That's correct.

PN534

That that also covers the issues that might arise on the site as that right of entry occurs?‑‑‑Correct.

*** SIMON SPRATT XXN MR DOWLING

PN535

There are people employed by other people employed by UGL that also have some responsibility for right of entry, and I think there are others employed by an entity called CSNT or employed by the Western Australian Chamber of Commerce and Industry, I think the evidence is, under a business name called CSMT, who also have some responsibility for right of entry. That's correct?‑‑‑That's correct.

PN536

Iin your role, I think you say, delivering management of those teams, should we understand that you have some overall supervisory role in respect of what it is they do?‑‑‑In respect to who, sorry?

PN537

In respect of the people who are looking at right of entry employed by UGL?‑‑‑Yes.

PN538

Or CSMT?‑‑‑Correct.

PN539

They, as well as you, might be dealing with a right of entry and the issues that arise from the right of entry?‑‑‑That's correct.

PN540

That's part of their job and it's part of your job to oversee how all of that unfolds?‑‑‑Correct.

PN541

As part of all of that, are you involved in the allocation of rooms for particular officials and particular unions when they want to meet with their members in the CCPP?‑‑‑On a day to day basis, not directly. Rooms allocated would be normally done by the rooms normally used on site, and also done by HR. If there were any changes, I might be consulted on that arrangement but, you know, normal day to day since this particular date, I wouldn't normally be consulted. It would be in a room normally used.

PN542

You say since this date , does that mean prior to this day it was different, you were consulted or - - -?‑‑‑Well, prior to that date I wasn't actually – on that date I wasn't – on 10 June I wasn't actually the site manager for the site, so I wouldn't have been consulted at all on the allocation of the rooms.

PN543

Yes. You were starting at about this time, weren't you?‑‑‑I had started on – I think it's in the statement, on 2 June, and I was receiving a handover at the time, so I took full control of the site from 12 June.

*** SIMON SPRATT XXN MR DOWLING

PN544

So was there some discussion with you about the allocation of rooms on 12 June?‑‑‑On 12 June, no, because it was still in the handover period. So the last day that I got a handover from Mr Newton was on 12 June.

PN545

I think, as part of this issue, you understand on 10 and 12 June there was some disagreement by the CFMEU at least that the training room was not – they did not agree that that was an appropriate room for meeting on 10 and 12 June. You understand that?‑‑‑I've become aware of that, yes.

PN546

Were you aware of – you were aware of that also, I take it from the evidence you've given, that that was the case on 12 June?‑‑‑I wasn't involved in any discussions on the choice of room for 12 June but I've become aware that obviously there were disagreements over the use of the room.

PN547

Perhaps I should be clearer. If we can put now to one side the allocation of the room to the events that occur on the day, and should I understand correctly that even though you weren't responsible for allocating the CFMEU the training room, you knew on 12 June that they weren't happy with the training room?‑‑‑It's difficult for me to say if I was aware on that particular day, to be honest, because it has obviously happened quite some time ago.

PN548

Yes?‑‑‑I haven't had any – given my role and what my role currently was at that time, I hadn't had any direct conversations with the CFMEU organisers on discussing the use of the room. So, to be honest, it's hard for me to recall whether I was aware at that time or later became aware.

PN549

Do you recall it being reported to you on the 12th, look, the CFMEU, we've allocated to them the training room and they don't agree that that's the appropriate room?‑‑‑No, I don't recall that, no.

PN550

Do you understand the provisions of the Act about if there's no agreement where the default meeting room should be?‑‑‑The default - - -

PN551

By the Act, I mean the Fair Work Act?‑‑‑My understanding should be the crib room should be the default.

PN552

By the crib rooms we're talking about rooms in which those people that are going to participate in the discussion normally take their meal or other breaks?‑‑‑Correct.

*** SIMON SPRATT XXN MR DOWLING

PN553

You understood that on 12 June?‑‑‑Correct.

PN554

You understood on 12 June, I assume, that the training room did not fit that description?‑‑‑I understand that.

PN555

Did you seek to do anything about that?‑‑‑So the default would have been in the crib room but that wasn't raised at the time. And in my role at the time on site, I wasn't enrolled in the selection of that room.

PN556

Might you have done something different if you were involved? In other words, if someone had come to you and said, look, they don't agree with the training room, knowing what you do about the Act you would have said, "Well, we can't insist on that. We have to find an alternative." That's what you would have done?‑‑‑Yes.

PN557

Now, tell me if you don't know – I just want to put this to you out of fairness but given what you've said, you may not know. Ms Richards from UGL is going to give some evidence; you're aware of that?‑‑‑Yes.

PN558

Have you discussed this matter with her?‑‑‑No, I haven't.

PN559

She's going to give some evidence that she allocated rooms for the various unions on 10 and 12 June. You're aware of that?‑‑‑I'm not aware of what is in her evidence, no.

PN560

Well, I'm just - - -?‑‑‑I suspect she will have allocated rooms, yes, because that's the normal procedure on our side and it has been since - - -

PN561

She also gives some evidence that she has a conversation with Mr Paul Springer on the morning of 10 June. Do you know who Mr Paul Springer is?‑‑‑I know who Mr Paul Springer is.

PN562

He is an AMWU delegate. Is that right?‑‑‑Correct.

PN563

Right?‑‑‑He was the AMWU delegate.

PN564

He was on 10 June, yes. She gives some evidence that she had a discussion with him on 10 June in which he made it clear that there were going to be AMWU members wanting to meet in the stores area at the east end?‑‑‑Okay.

*** SIMON SPRATT XXN MR DOWLING

PN565

Now, did you have a conversation with her in which she communicated to you that discussion with Mr Springer?‑‑‑Not that I recall.

PN566

Have you had one since about the conversations you had with Mr Springer?‑‑‑Not regarding that conversation, no.

PN567

Now, you give some evidence, some brief evidence, at paragraph 23 of your statement – we don't need to go to it?‑‑‑Sure.

PN568

About what it is that permit holders will do when they attend a site in terms of signing in and inductions and those sort of things?‑‑‑Sure.

PN569

You give a general statement. To the best of your knowledge – we will deal with them separately but I pay regard to what you've said about the 10th. To the best of your knowledge on the 10th there was no issue with any of the unions that signed in, in terms of carrying out the sign in, the induction process?‑‑‑To be clear, not that I'm aware of or have been made aware of.

PN570

In respect of the 12th, the same goes. There was no issue that you're aware of or have been made aware of in terms of the union officials carrying out the sign-in and induction process?‑‑‑Not that I'm aware of.

PN571

There was no report to you at any stage that an issue arose as part of that process, on both days?‑‑‑Not that I've been made aware of.

PN572

There was no report to you, I suggest, about any inappropriate behaviour on the 10th and 12th, save there's a disagreement about where the employees should meet. Is that fair?‑‑‑That's – can you just clarify that question a bit more for me.

PN573

Yes. Certainly. I'm just suggesting to you – I'm putting to one side - - -?‑‑‑Yes.

PN574

We know that there's a disagreement about where they're going to meet?‑‑‑Correct.

PN575

Apart from that issue, nothing is communicated to you about any inappropriate behaviour, language, anything of that sort engaged in by the union officials on 10 or 12 June?‑‑‑No.

*** SIMON SPRATT XXN MR DOWLING

PN576

All right. Now, one of the issues that I understand you complain about is that when Mr Cummins ultimately attended a meeting at about 2 o'clock in the stores area, there may have been some members of the AMWU in that area. Is that one of the things - - -?‑‑‑Are you referring to 10 June?

PN577

10 June, sorry?‑‑‑I was made aware that there were AMWU members present, yes.

PN578

I take it that you were also made aware that their organiser or official had been sent to the west end of the facility?‑‑‑I was made aware of that after the fact, yes.

PN579

So you now know there might have been some AMWU members in the stores but their official was sent to the other end of the facility?‑‑‑I was aware of that, yes.

PN580

Were you aware of that on the day or are you saying you've since been made aware of it?‑‑‑I was aware on the day that that was the room it was allocated to. I obviously had no visibility of it myself.

PN581

All right. So you knew – you were informed – if I understand correctly – on the day that there's some AMWU members in the stores area, and you were also informed that Mr Wilkins was at the other end of the facility in the west end?‑‑‑That was an allocated room which had come out in the publicised – we were publicising it and I think I made that in my statement.

PN582

Yes?‑‑‑So as far as I was aware, Mr Wilkins had gone to the west end to have his conversation at that time.

PN583

All right. And is it also fair then from what you were told or your recollection of the events, that ultimately Mr Wilkins doesn't get to talk to any members of the AMWU on the 10th, the west end or the east end, and certainly doesn't get an opportunity to tell anyone in the east end that they're to go elsewhere. Is that right?‑‑‑Sometime after the event, during that afternoon, I would have become aware of this.

PN584

All right. Now, I just want to be clear on what I understand to be your involvement in the events that unfold after the meeting on 10 June. As I understand it, Mr Haire and Mr Cummins, the officials respectively at the ETU and the CFMEU, leave the meeting in the stores somewhere shortly after 20 past 2?‑‑‑I couldn't give you an exact time because I was actually – I had moved away from the area at that time, and had gone back to the office to commence my own work.

*** SIMON SPRATT XXN MR DOWLING

PN585

All right. But they leave it and they come out of the meeting and they want to speak to some UGL representatives because the members in the meeting have raised some issues that they want answers to. Is that as you understand things?‑‑‑That's – I probably wasn't across all of the detail of that but I became aware of that, that afternoon, yes.

PN586

Just so I can understand the chronology from your evidence, perhaps it might assist you if you go to paragraph 60 of your statement. Perhaps you go back a page – sorry – back a paragraph on page 8 of your statement, and our paragraph 59:

PN587

I then decided there was no point in standing near the tools store area, and I moved away towards the east end offices.

PN588

That's what you said a moment ago?‑‑‑Correct.

PN589

You moved away?‑‑‑Yes.

PN590

And just in terms of timing – sorry, I'm asking you to go backwards?‑‑‑Yes.

PN591

But you then go back to paragraph 58:

PN592

I understood there was some disagreement about where Mr Wilkins was to hold his discussions with the AMWU and he was subsequently escorted from the project.

PN593

So that's cause we've already said?‑‑‑Yes.

PN594

Now, then Mr Newton tells you – and I take it that – I'm now in paragraph 62. Mr Newton tells you that he had been advised by the union delegates that workers were not returning to work. Now, I just want to clarify – I take it that Mr Newton is telling you this sometime after 2.30?‑‑‑My recollection would be around then. It may well have been in the same conversation where I was made aware that the organisers had been escorted off site, and the workers not returning to work. So sometime shortly after 2.30.

*** SIMON SPRATT XXN MR DOWLING

PN595

So as I understand it, Mr Haire and Mr Cummins, you don't remember the exact time but - perhaps I will put it to you this way to be fair. Mr Haire and Mr Cummins leave the meeting before the lunch break is over?‑‑‑Unfortunately because of where I was situated and my involvement on that day, I would strongly suspect that they did, and that's typical of them to go for the whole duration of the lunch break.

PN596

Yes?‑‑‑And that at around 2.30 would have been the time that they would have had to finish up anyway with their allocated time.

PN597

Yes?‑‑‑So I would think it highly likely that they left prior to 2.30, yes.

PN598

Okay?‑‑‑And, you know, in my mind that's the conclusion of it.

PN599

Well, just again to be fair to you, their evidence is going to be they left the meeting about 2.21, 2.22?‑‑‑Yes.

PN600

They came to see UGL representatives and they never went back to the meeting?‑‑‑Nothing that I'm aware of would necessarily conflict with that.

PN601

Then they go off the site or they go down to the gate, I think, and then certainly off the CCPP area and down to the front gate. That accords with your recollection?‑‑‑That's what I'm aware of, yes.

PN602

I'm suggesting to you that sometime after they've gone and left the CCPP area, that Mr Newton tells you that he's been advised by the delegates that the workers are not returning to work?‑‑‑I couldn't comment exactly when it's happened. They may well have told them as the organisers left the site. Given the nature of it, Jack might still have been standing outside that area. It's hard for me to really comment on what his movements are and when he might have got that information.

PN603

You don't - - - ?‑‑‑He certainly didn't make that clear to me at the time.

PN604

It's fair to say you don't have a clear recollection of the timing of these events that you set out in these paragraphs?‑‑‑Only the general timing which would have bounded it – which would have been 2.30 the workers would have had to have returned to work and by 2.30, the organisers would have left the site. What I've been made aware of is that by 2.30 they'd left the site, they hadn't run over time.

*** SIMON SPRATT XXN MR DOWLING

PN605

But all you know in terms of communications about the decision – it's not the organisers that communicate to you that people aren't going back to work, it's the delegates themselves who were still in the meeting at 2.30 and who themselves are not going back to work. It's the delegates that communicate the decision not to go back to work?‑‑‑That's what Mr Newton made me aware of.

PN606

Then as I understand it from your statement, Mr Newton and Mr Gittus address the meeting about telling them what they should or shouldn't do and again just to be clear as best as you understand it, Mr Haire and Mr Cummins aren't there then. They are – they're gone?‑‑‑Mr Haire and Mr Cummins are not that at that meeting when they were addressed by Mr Newton and Mr Gittus.

PN607

Then it's at some later stage that you're told the workers are going back to work and again that communication comes from the delegates, it doesn't come from the organisers, is that right?‑‑‑Correct.

PN608

Now can I ask you some information about the next day, 11 June?‑‑‑Yes.

PN609

Is it fair to say that – you were there I think when Mr Haire and Mr Cummins and Mr Wilkins returned on 11 June?‑‑‑That's correct.

PN610

You're there together with Ms Richards and Mr Gittus?‑‑‑That's correct.

PN611

Mr Gittus hasn't filed a statement in this proceeding. Is Mr Gittus still employed by UGL at the site?‑‑‑As far as I'm aware he's actually by employed by UGL at a corporate level.

PN612

Is there any reason why he's not able to give a statement in this proceeding that you're aware of?‑‑‑Not that I'm aware of.

PN613

So you're there with Mr Spratt, Mr Gittus and Ms Richards when Mr Wilkins, Mr Haire and Mr Cummins return the next day?‑‑‑Correct.

PN614

Again, tell me if you can't remember the exact times but can I suggest to you that you have a discussion with them sometime shortly after 8 am – sorry, after 7 am?‑‑‑That's what I recall, yes.

PN615

I think everyone is consistent in saying that they were pretty upset that – or they were upset that the delegates were not going to be allowed to participate in the discussion about the issues that had arisen the previous day?‑‑‑The organisers were not willing to meet without the delegates present.

*** SIMON SPRATT XXN MR DOWLING

PN616

They said to you, "Where are the delegates?" ?‑‑‑They would have said words to that effect, yes.

PN617

Someone from UGL said, "Well no one said the delegates had to be here." ?‑‑‑My recollection of the event was that – and what had been relayed to me is that David Gittus had made an agreement to meet with the organisers but no discussion had been made previously about the delegates that were present with the organisers.

PN618

I'm suggesting to you that on 11 June one of the officials says, "Well it's a given that the organisers are going to be there – that the delegates are going to be there", sorry. Did someone say that?‑‑‑Words to that effect were said. I can't remember if I heard it.

PN619

One of the officials also said, "Well, they should be here because they know the details of the issues." Is that fair?‑‑‑Words to that effect would have been said, yes.

PN620

So knowing that there's been – it appears – some misunderstanding, they just assumed the delegates were going to be there. They've told you that the delegates are the ones that are across the detail. Did you think that it was then prudent, "Well let's go and nip issues in the bud and let's just go and get the delegates and meet with the delegates."?‑‑‑Prudent to meet with the delegates right then?

PN621

Yes?‑‑‑I think the conversation I had at that time was that the delegates were at work and that I was happy to meet with the organisers and I would meet with the delegates separately.

PN622

So was it your position that you didn't think at this time it was a good idea to involve the delegates because they were otherwise working?‑‑‑So it was my position and what I've been made aware of – that there'd been no discussion of delegates being present up until that point. This is what I was made aware of between Amy and David's conversation with the organisers the previous day. So delegates were at work that day. My position was I was happy to - obviously I was only just inheriting the role. I wanted to have a chat with the organisers and understand what the issues were as they saw it and sit down and build a relationship with them and then I was happy to meet later with the delegates.

PN623

But isn't the best way to get an understanding of the issues is to have there the people that actually know the detail of the issue. Do you agree with that now looking back?‑‑‑I felt at the time and felt then that the organisers were aware of the detail and I wanted to discuss it with them.

*** SIMON SPRATT XXN MR DOWLING

PN624

But they told you they weren't. They said, "We want the delegates here because they're across the detail." Didn't you at that point think, "Well maybe that would make sense. They don't know all the details, the delegates do. Let's just get the delegates here." Wouldn't that have been a prudent thing to do?‑‑‑I didn't feel it was the prudent course of action at that time.

PN625

Just so I understand, is one of the reasons you didn't think it was a prudent course of action at the time is because the delegates were at that time – 7 o'clock or thereabouts - working?‑‑‑That would have been part of the reason, yes.

PN626

Can I then take you a little bit after 7 am and immediately this discussion with the organisers finishes and you say you can't have the delegates and they say, "Well if we can't have the delegates we're not going to meet." They leave. Immediately after that, Ms Richards returns and tries to arrange a meeting with the delegates for 8 am on that very morning. Is that correct?‑‑‑I'm not aware of her trying to arrange a meeting at 8 am on that morning, no.

PN627

Just to be fair to you – I just want to put to you her version of events. She says – so the events that we've just been discussing have all transpired. The officials had left and she says, "On return to the site I arranged a meeting to be held at 8 am with the delegates to discuss the current issues on site." Is that consistent with your understanding of the events at the time?‑‑‑To be honest I can't recall.

PN628

Because it does suggest doesn't it that your reason or one of the reasons for not wanting to go and get the delegates because they were working was not really the reason because you go and pull them off a job immediately to meet with them?‑‑‑As far as I recall they weren't pulled off the job immediately. I did give them a briefing later that day on some of the outcomes.

PN629

Perhaps to be fair then I should read you the next paragraph of Ms Richards' statement:

PN630

At 8.30 am the meeting commenced with Mr Spratt, Mr Newton, Mr Gittus and (indistinct) with Mr Springer, Mr Ferns, Mr Bailey, Mr Lynd, Mr Atnovic, Mr Boosenchute representing the delegates.

PN631

So at 8.30 am they're not working are they?‑‑‑Like I said I can't recall. I would have to check.

*** SIMON SPRATT XXN MR DOWLING

PN632

I just don't understand how it is, and perhaps you can assist the Commission – how it is that you decide that sometime after 7 am it's not appropriate to go and get the delegates because they're working but immediately upon Ms Richards returning to the site she decides to go and get the delegates who are working. Can you explain that?‑‑‑Sorry, just repeat the question.

PN633

I don't understand why it is that one of your reasons for not including the delegates in the conversation at 7 am is because they are working, yet immediately upon Ms Richards' return to the site she decides to stop them working and bring them to a meeting with people including you. Why is that?‑‑‑Why is that?

PN634

Yes?‑‑‑I think probably given that we didn't go ahead and give – have a meeting with the organisers, it was decided to give the delegates a briefing and understand the issues from them themselves.

PN635

Wouldn't it have been a much better course to just include the delegates in the meeting with the organisers sometime shortly after 7.30 am?‑‑‑I'm not sure it would have been. I mean at the time I was still settling into the role and becoming aware of the site practices but given that the agreement that I was aware was to meet with the organisers, I felt like the correct course of action was taken at the time based on the conversations and what I was made aware of.

PN636

Because what it is that's put in evidence by you and others is that after you refused to allow the organisers to have the delegates, the organisers say, "Well we'll be back tomorrow"?‑‑‑That's correct, yes.

PN637

So you understood the reason they weren't going to meet with you on the 11th was because you refused to have the delegates and they're going to come back tomorrow because you didn't allow the delegates into the meeting?‑‑‑My understanding when the meeting was organised was that the delegates were never mentioned to be present. I went up there with David and Amy, we'd organised a meeting and who had been party to the previous conversations with the organisers. I reiterated what had previously been agreed and that we were willing to go ahead with the meeting with the organisers up there at the front gate. The delegates were not present, they were still back at work but I was happy to meet with them to discuss what the issues might be as they had agreed with Amy Richards and David Gittus the previous day and what I'd been made aware from Amy Richards and David Gittus.

*** SIMON SPRATT XXN MR DOWLING

PN638

I understand that your understanding might have been the delegates weren't going to be there but you were pretty quickly disabused of the view that the delegates – that the officials themselves also had that view. As soon as they got there they said, "Where are the delegates?" So at that point it became obvious to you that they wanted the delegates there and I'm suggesting to you there was then no reason at all that you could not have gone and got the delegates and discussed the issues. Do you agree or not?‑‑‑No, I don't agree. I think given the agreement had been to have a meeting with the organisers, I was happy to proceed with that meeting and we could have agreed on another time to have a meeting with the delegates present.

PN639

I'm suggesting to you that your conduct and that of Mr Gittus who is not here – by not allowing the delegates to attend on 11 June is the very thing that led to the organisers coming back the next day on 12 June. Do you agree with that?‑‑‑No, I don't agree.

PN640

That's what they said to you though isn't it? "If you're not going to allow the delegates we're going to come back tomorrow." ?‑‑‑I think the exact words were we'll put in right of entries and do it all over again tomorrow, yes.

PN641

You know exactly what they were talking about, didn't you? You knew – you're not going allow us to meet with our delegates, we're going to have to come back and meet with the members including the delegates tomorrow. You knew exactly that's what they were saying didn't you?‑‑‑I didn't really read too much into the actual comment made except that they would be back tomorrow and similar events would reoccur.

PN642

Did you think at that point, "Well look, here's a way to short circuit this. Let's just get the delegates here now, listen to the issues and give our response to them." Is that something that occurred to your or not?‑‑‑In terms of having meetings with the organisers and delegates?

PN643

Yes, then and there?‑‑‑No, it didn't occur to me or after.

PN644

Can I ask you then about the following day. Have you been – by 12 June, had you been informed about what occurred on 10 June?‑‑‑What particular part?

PN645

Sorry. That the CFMEU for their part were not content with the training room on 10 June. Did you know that by 12 June?‑‑‑In terms of exact timing it's difficult for me to recall that far back exactly when I became aware of it. Definitively I became aware of it after 12 June when I had separate conversations with relevant companies but I can't say for sure.

PN646

I think your evidence is earlier, because of your recent engagement in the role you didn't have any involvement in the allocations of the rooms on the 10th or the 12th. Is that right?‑‑‑That's correct.

*** SIMON SPRATT XXN MR DOWLING

PN647

What I want you to explain though to the Commissioner is did you know that people weren't happy with the allocation of the rooms on the 10th so therefore did you expect, "We're going to have an issue again on the 12th." The same issue will arise. Did you know or not?‑‑‑I can't recall at the time. Certainly after the event – probably in the next week I probably became aware from Roland Cummins that he wasn't happy with the room. What is difficult for me to differentiate going back that far now in those events is the choice of the tool store or the main stores was due to unhappiness with the room or a desire to have a meeting combined - - -

PN648

You can't recall?‑‑‑I can't recall. For that time scale – I certainly could say definitely I became aware the next week.

PN649

I suppose it's fair to say is it that whether you knew on the 12th or not about the unhappiness on the 10th, the same decisions were made on the 12th about the allocation of rooms?‑‑‑The same rooms were allocated, yes.

PN650

Again also Mr Wilkins is sent down to the west end?‑‑‑Yes, that's correct.

PN651

I'm suggesting to you again on the 12th there's an expectation by you, Ms Richards, Mr Gittus that there's going to be AMWU members wanting a meeting in the east end but you still send Mr Wilkins down the west end?‑‑‑I think - - -

PN652

THE COMMISSIONER: Do you recall or not?‑‑‑At that particular time- like I said it's difficult for me to recall – there's two separate issues there. I think at the time my thought process was more around the use of the tool store being around wanting to have a combined meeting. Roland Cummins expressed later – probably the next week that he also had a want around having – wanting to meet in that room because he didn't like the training room.

PN653

MR DOWLING: Should I understand from that then that you didn't have a problem with them meeting in the stores area but you were just concerned about it being a joint meeting in the stores area?‑‑‑I would not normally in normal practice allow a meeting in the stores area. I would always want them meeting in a crib area or a building in the office area mainly because the stores area – tool store area is actually a work area.

PN654

You understand that they met there before 10 June?‑‑‑I became aware of that after the fact, yes.

*** SIMON SPRATT XXN MR DOWLING

PN655

Looking back now, knowing all of that is your objection now – knowing they'd met there before no problem – "I don't have a problem with them meeting there. I just have a problem with this idea that Mr Cummins might be addressing an AMWU member." Was that your issue?‑‑‑On this particular site that I'm managing I would not allow meetings to occur in the tool store area. I would always refer to a crib room or an office crib room or a meeting room which is for that purpose.

PN656

Do you know then – I should put to you out of fairness that the CFMEU met in the stores area after 12 June – after your handover?‑‑‑I'm aware of that.

PN657

How does that sit with the evidence you've just given?‑‑‑So really I guess that came about to be honest in discussion within our team and we thought if we kept allocating Roland Cummins what we thought was an adequate room to have a meeting in but he simply would not go to that meeting room.

PN658

Training room you're talking about?‑‑‑Correct, yes. So the discussion I recall is that if we allocated the training room he probably would not go to that training room. In the interests of building relationships and not having him just walk away from the escort it was decided to allow the meeting in the tool store.

PN659

I think Mr Cummins and Ms Richards' evidence is not inconsistent as I read it. She calls him on the Saturday the 13th and says, "Do you want the stores area for the right of entry that you put in?" ?‑‑‑Correct.

PN660

So that's consistent with your view that he could have the stores area?‑‑‑I asked Amy to offer him the stores area because I felt that offering Roland Cummins at that time any other area would only result in more conflict.

PN661

I take it you weigh into that equation the safety or otherwise of the stores area. You wouldn't have said yes to that if it was clearly unsafe?‑‑‑I had, yes.

PN662

Just getting back to my question a moment ago, was your concern about letting him go to the stores area the fact of the safety of it or the fact that Mr Cummins might have been addressing an AMWU member?‑‑‑On which particular date are you talking?

PN663

Either day. The 10th or 12th if you can recollect?‑‑‑So as I said, normally when we're having rights of entry I would never allow anyone to meet outside crib rooms or a fit for purpose meeting room which is a building basically. So the tool store really was – I guess you could say it was something which was done out of my normal practice and the way I run sites. Given Roland Cummins strong aversion to meeting elsewhere and the fact that I considered - - -

*** SIMON SPRATT XXN MR DOWLING

PN664

Well not elsewhere. Meeting in the training room is what you've - - - ?‑‑‑Correct, and the training room and the unlikelihood that he would actually comply with that. So it was decided – you've got to remember it caused some confusion among the workforce as well in terms of location of the meeting room when we're communicating something different and then the meeting is actually occurring somewhere else. So the decision was made to avoid conflict to provide Roland Cummins the room which he wanted and which was discussed with him at that time purely just to avoid the conflict and confusion for the site.

PN665

Perhaps I'll try my question again. What I'm asking you is, did you or didn't you have a concern on the 12th or the 10th that there was some – there was a concern that Mr Cummins might be addressing an AMWU member? Was that a concern or not?‑‑‑On the 12th?

PN666

The 12th or the 10th?‑‑‑It probably was part of a concern that there might be, you know, ineligible members turning up to that particular meeting but it probably wasn't the only concern.

PN667

If we deal with the 10th, isn't that a concern that you've created because you've sent Mr Wilkins to the other end and Mr Wilkins doesn't even get to talk to his AMWU members on the 10th to tell them where to go. So how can Mr Cummins be blamed for that?‑‑‑Sorry, can you clarify what the question is there.

PN668

Let's deal with the 10th?‑‑‑Yes.

PN669

You say it might be a concern that Mr Cummins is addressing an AMWU member?‑‑‑Are you referring to a particular clause in my statement?

PN670

I'm referring to the application that is made in this proceeding?‑‑‑Yes.

PN671

What I'm suggesting to you is that the conduct of UGL and CSMT in sending Mr Wilkins to the west end and ultimately not allowing him to address any union members exacerbated or caused that very problem because the AMWU members have not got any official onsite to tell them where they should be or where they shouldn't be. Do you agree with that?‑‑‑So the question is that the AMWU members weren't aware where they would be addressed by their organiser?

*** SIMON SPRATT XXN MR DOWLING

PN672

What I'm suggesting to you is, they had no – you accept that they had no one to tell them as a representative of the AMWU as to where they should be?‑‑‑There was no representative of the AMWU to tell them where they should be but that would be the case for any right of entry. So the workforce had been told where the meeting was by the normal prestarts – by their supervisors each morning and the whole AMWU (indistinct) would have been aware that that meeting was designated to occur in the west end.

PN673

I think your own evidence is there was some confusion and the evidence of Ms Richards is that she sees AMWU members walking to the stores area. So it must have been obvious to everybody that there was going to be some AMWU members in the stores area. Is that a fair assessment?‑‑‑When you say obvious to everybody can you clarify what you mean by that?

PN674

I'm suggesting to you that it was obvious to Ms Richards that there was going to be some AMWU members in the stores area on the 10th and 12 June. Did she communicate that to you?‑‑‑She didn't communicate that to me but that became evident during the event, yes.

PN675

Might it be prudent at that point then to say, "Well, we'd better let Wilkins go up to the east end and tell his members to go down to the west end or tell his members to go somewhere else." But instead Mr Wilkins is told it's the west end or out you go?‑‑‑I think given the very clear communication and nature of the way it way it's communicated in the prestart to all people on site that start work that day that there wouldn't be any confusion around where the designated meeting spot is and where the organiser would be taken for right of entry discussions.

PN676

But I think you've accepted so far that there is some confusion. Where we are in this scenario it has become obvious that there are AMWU members in the stores. Now, do you want to deal with that or not? Do you put in place a method to deal with that or do you just leave them there at the stores?‑‑‑I think if AMWU members made a decision to go to the stores then that's their own decision during the crib break but they have been informed of the location of the meeting.

PN677

You made a decision I take it in your role that you weren't going to do anything about those AMWU members in that meeting? When I say do anything about it, you weren't going to tell them that they should be there or they shouldn't be there or they should be somewhere else. No one was going to do that?‑‑‑Well I didn't have any decision to make that day. If you could clarify your question because obviously I was still not the site manager at the site. So I mean I witnessed them being there but I wouldn't - - -

PN678

You weren't in the position to make a decision, is that what you're saying?‑‑‑I wasn't in the position to really discuss anything with the AMWU on that particular day.

*** SIMON SPRATT XXN MR DOWLING

PN679

Who was the person who was best place to make that decision? Was that still Mr Newton at that point?‑‑‑Probably Mr Newton.

PN680

Mr Newton has not filed a statement in this proceeding. Is there any reason that he's not coming along to give evidence?‑‑‑I haven't been made aware of that.

PN681

I should have asked you in respect of the 12th the same questions I ask you in respect of the 10th and that is, nothing was reported to you in respect of the entries on the 12th about whether there was any issue arising out of the sign in or the induction process for the officials that attended on the 12th?‑‑‑As I previously said, no issues were reported to me.

PN682

In respect of the 12th it's not Mr Haire that attends for the ETU, it's Mr Kirby that attends, is that right?‑‑‑Yes.

PN683

Mr Kirby goes to crib room four where he's been allocated and meets with his members doesn't he?‑‑‑That's correct.

PN684

No issue arose there did it?‑‑‑No issue arose.

PN685

I'm getting close to the end so I - - -

PN686

THE COMMISSIONER: Let's just press on.

PN687

MR DOWLING: Yes, I'm happy to. I think – yes. You give some evidence about the impact of the action that took place on 10 June and you say in your statement at paragraph 99:

PN688

During the unprotected action on 10 June 2015, minimal productive construction work could be carried out on the CCPP site.

PN689

Now, I just want to clarify that when you say 10 June, it's correct to say that work was carried out as usual between 6.20 am – their start time – and 2.00 pm, the commencement of their lunch break?‑‑‑Yes.

PN690

So there was certainly no issue with productive work being carried out between 6.20 am and 2.00 pm?‑‑‑Not that I'm aware of.

*** SIMON SPRATT XXN MR DOWLING

PN691

Between 2.00 pm and 2.30, the site operated as it normally did because that's the time they take their break and on this occasion that's when they took the break?‑‑‑Correct.

PN692

I think your evidence is and the evidence of others called on behalf of the applicant is that the workers returned to work at 3.30, is that right?‑‑‑So obviously because I wasn't managing the operational – but that's what I've been told and obviously I witnessed a conversation between certain union delegates informing Amy Richards of that.

PN693

I think their usual finishing time – the evidence is 4.40 and then they make their way to the front gate and they leave the front gate by about 5.00 pm?‑‑‑Correct. They start catching busses from just prior to 4.40 and they pass through the gate at various times from as early as 4.45 to 4.50 depending on traffic.

PN694

To as late as 5.00 or thereabouts?‑‑‑I don't recall exactly. It changes depending on bus timetables.

PN695

You've given some evidence also about what you say is the likelihood or increases to the likelihood of CCPP progress incurring liquidated damages for UGL?‑‑‑Correct.

PN696

Is it correct to say that as at the date of this proceeding today, UGL have not been required to pay any liquidated damages for any events arising out of 10 June?‑‑‑As far as I'm aware, no, they haven't been required to.

PN697

Can I ask you lastly whether you are familiar with the current meeting arrangements for the CFMEU?‑‑‑I believe the CFMEU – as far as I'm aware and it's important to note that I haven't escorted right of entries for the CFMEU but I'm aware that they're meeting in a crib room in lay down one which is our new office facility.

PN698

The evidence will be from Mr Cummins giving evidence for the CFMEU that the CFMEU now meet in crib room number three in lay down one?‑‑‑That would be – without knowing the exact numbers of the crib rooms that would make sense to me.

PN699

Do you know that room or those rooms there in lay down one?‑‑‑I know the set of rooms, yes.

*** SIMON SPRATT XXN MR DOWLING

PN700

We've got the advantage of having been in them yesterday. Is it fair to say it's a large room?‑‑‑My recollection is that it's approximately 12 by nine metres.

PN701

My count that it had seats for about 84 – or in excess of 80 - - - ?‑‑‑That would be in line with the 12 by nine seating arrangement.

PN702

Fair to say also that it is – on my guestimate probably four times the size of the training room?‑‑‑The training room is a 12 by six meeting room so it would be a third larger.

PN703

Well the training room I think is a demountable that is that size but it also has office attached to it so the training room itself is smaller than the - - - ?‑‑‑I stand corrected. It would probably be a – under that probably a nine by six meeting room.

PN704

I'm going to suggest to you – you can disagree that crib room three – the available space within crib room three is about four times the size of the available space within the training room. For this purpose – for the purposes of meeting?‑‑‑Look, from a purely dimensions viewpoint that's not quite the case but - - -

PN705

Perhaps I'll ask the question in a different way. You'd agree with me that the meeting – the current crib room is significantly larger?‑‑‑The current crib room is larger than the training room, yes.

PN706

Significantly larger is what I'm suggesting to you?‑‑‑In order of probably of twice the size based on the dimensions.

PN707

Does it accord with your understanding that the CFMEU have met in the crib room number three in lay down one since shortly after June of 2015 – that's been their room?‑‑‑I couldn't comment on – I can't recall the exact date that that's been their room. I can't really recall when the facility was up and running but it would have been plus or minus a month or so around that day. Or two months, something – to be honest I can't recall the exact date.

PN708

If it's not June it's July you think?‑‑‑July or possibly as late as August, I'm not sure.

*** SIMON SPRATT XXN MR DOWLING

PN709

The evidence will be that the CFMEU have met in that room approximately 14 times – 14 to 15 times since June 2015. Does that accord with your understanding?‑‑‑Like I said I wouldn't have an exact number but that number doesn't surprise me when you mention it.

PN710

The evidence will be that there's been no incidents at all arising from any of those visits and meetings in crib room number three, is that consistent - - - ?‑‑‑When you say incidents, can you just define what you mean.

PN711

Certainly. There's certainly been no complaint about the suitability of that room as a meeting room?‑‑‑From the - - -

PN712

From the CFMEU?‑‑‑Not that I'm aware of, no.

PN713

Tell me if you don't know but the evidence will be that they are satisfied with that meeting room?‑‑‑I've never been told otherwise and I have had meetings with the CFMEU since that they are dissatisfied with the room. It hasn't come up in conversation.

PN714

You'd expect them to have told you I suppose?‑‑‑I would expect that they would tell me, yes.

PN715

They haven't?‑‑‑No, they have not.

PN716

All right. Is it also correct to the best of your recollection that there has been since June of 2015 no meeting of any of the unions – CFMEU, CEPU or AMWU – that could be described as a joint meeting?‑‑‑Not that I'm aware of. Not post 12 June.

PN717

If I can just - - - ?‑‑‑That's with organisers present.

PN718

If I can just ask you some similar questions with the respect to the CEPU. Are you aware where they now meet?‑‑‑I believe they also meet in the crib room in lay down one. I couldn't tell you the exact number of that crib room.

PN719

But it's a crib room of similar proportions to the one I described for the CFMEU and that is I mean it seats 80 plus?‑‑‑That's correct.

PN720

And is significantly larger than crib room four that they were allocated on the 10th and 12 June?‑‑‑That's correct.

*** SIMON SPRATT XXN MR DOWLING

PN721

The evidence will be that they have met in that large crib room on approximately seven occasions since June of 2015?‑‑‑Nothing that I'm aware of would conflict with that information. Like I said, I don't keep track of the exact numbers.

PN722

The evidence will be that there have been no incidents about the suitability of the room arising from any of those events by the CEPU?‑‑‑Nothing has been raised to me, no.

PN723

Again, I take it that nothing has been raised by the CEPU to suggest to you that they are in anyway dissatisfied with that meeting room?‑‑‑That's correct.

PN724

Thank you very much. Nothing further.

PN725

THE COMMISSIONER: Thank you, Mr Dowling. Mr Sivaraman, no questions?

PN726

MR SIVARAMAN: No questions.

PN727

THE COMMISSIONER: Mr Murdoch?

PN728

MR MURDOCH: No re-examination. Might the witness be excused?

PN729

THE COMMISSIONER: All right. Thank you for that. You're free to go.

<THE WITNESS WITHDREW [1.20 PM]

PN730

THE COMMISSIONER: All right. Can I just ask everyone at the Bar table – we can have three quarters of an hour, we can have an hour.

PN731

MR MURDOCH: Could I ask that we have – looking at the court room clock that I can see, it says 13.20. Can I ask until half past 2.

PN732

THE COMMISSIONER: Yes, comfortable with that – the parties?

PN733

MR DOWLING: I don't expect from my part that there will be any difficulty getting through the remaining two witnesses although Mr Sivaraman probably has more questions to ask of those two than I do but on the assumptions we'll get through them I don't have a problem.

*** SIMON SPRATT XXN MR DOWLING

PN734

MR SIVARAMAN: I'm expecting to be about 45 minutes with Ms Richards and perhaps that or slightly less with Mr Lee. So taking that into account if we were to start at 2.30, I probably should finish on time assuming Mr Murdoch is not leading any evidence.

PN735

THE COMMISSIONER: All right then. Let's reconvene at 2.30.

LUNCHEON ADJOURNMENT [1.21 PM]

RESUMED [2.46 PM]

PN736

THE COMMISSIONER: Mr Murdoch.

PN737

MR MURDOCH: Yes, thank you, Commissioner. The next witness is Ms Richards, but before I bring her into the room, or have her brought in, there's a couple of matters that have been raised by way of objection by my learned friend Mr Dowling. One of the matters, I think, has been resolved, but the second matter I understand Mr Dowling wishes to press. Maybe if I could deal with the matter that's been resolved first and then Mr Dowling can explain to you his objection in respect of the second matter. If you could take up Ms Richards first statement and go to paragraph 70.

PN738

THE COMMISSIONER: Yes.

PN739

MR MURDOCH: There's been an objection raised in respect of some aspects of that paragraph amounting to, I think, speculation. That's been discussed and can I just read to the Commission which parts of paragraph 70 I don't read.

PN740

THE COMMISSIONER: Sure.

PN741

MR MURDOCH: The words in the first line from:

PN742

And let him do the talking. It was my impression from the way -

PN743

will not be read.

PN744

THE COMMISSIONER: Yes.

PN745

MR MURDOCH: And nor will the words on the last line:

PN746

That he was clearly speaking on behalf of the group –

PN747

be read.

PN748

THE COMMISSIONER: All right. I've got that.

PN749

MR MURDOCH: There's another objection Mr Dowling will address you on.

PN750

MR DOWLING: Thank you, Commissioner. The other objection is in respect of Ms Richards' reply statement. It can be found in paragraph 8 on page 3 of that reply statement.

PN751

THE COMMISSIONER: Yes.

PN752

MR DOWLING: Ten lines from the bottom the Commission will see ‑ ‑ ‑

PN753

THE COMMISSIONER: Ten lines from the bottom of paragraph 8?

PN754

MR DOWLING: Yes. Ten lines from the bottom of paragraph 8, the Commission will see the words:

PN755

And being told that by Sharon Kramer, previous HR manager on the project. Ms Kramer had tried to get the unions, including the CEPU, to use the training room for the ROE visits, but the CEPU had resisted and continued to crib room 4.

PN756

In our submission, that's inadmissible hearsay. We understand it's said by my learned friend that it's really simply according the basis of her understanding. If that were so and it was only that and it was not relied on for the truth of its contents, the position might be resolved by being able to say, leaving the words:

PN757

And being told that by Sharon Kramer –

PN758

full stop and deleting the rest, but certainly the balance and the account:

PN759

Ms Kramer had tried to get the unions, including the CEPU –

PN760

seems to be relied on for the truth of its contents, as we read it. A factual statement that's a hearsay account from Ms Kramer. So we press it. If it can be resolved by leaving the words:

PN761

And being told that by Sharon Kramer.

PN762

Then we're content for that. The next sentence is the only other objection in respect of Ms Richards and that is:

PN763

I do not believe that these individuals, or any eligible individuals, would have been deterred from attending at a meeting or joining the CEPU because of the suggested crowding.

PN764

In our submission, that's speculation of opinion. We accept that Ms Richards is being responsive to Mr Haire, where Mr Haire says in his paragraph 22, to which she's referring - I'll read it to you, Commissioner, so you don't have to go there:

PN765

The size of both the crib and training room is inadequate to hold a meeting of all persons eligible to join the union and the crowded room may deter people from participating in the meeting and joining the union. This was an ongoing concern of mine in relation to that area.

PN766

The distinction we seek to draw really is that Mr Haire is simply saying, "Look, that may be a problem and I had an ongoing concern about it," whereas Ms Richards seems to be making a positive statement that it wouldn't deter - knowing that meeting, but we all appreciate the ruling that the Commission made this morning.

PN767

THE COMMISSIONER: Yes.

PN768

MR DOWLING: And how these things can be accorded weight and it may be that questionable weight is accorded to both of those opinions.

PN769

THE COMMISSIONER: Yes.

PN770

MR DOWLING: But we press those two relevant parts of paragraph 8. There's nothing further in respect of Ms Richards.

PN771

THE COMMISSIONER: Yes, look, I'm fine, unless either of you have any strong objection to this, dealing with those two issues on the basis that I treat it as a matter of weight that should be accorded – note the objections raised by Mr Dowling that there's a speculation or opinion in regard to the second issue and in regard to the first and if it was to be that the evidence was her understanding and not a positive assertion as to fact, that there's not a concern there.

PN772

If I could proceed on the basis that I'm aware of those objections and I take that into account when it comes time for me to make a decision and we could move on.

PN773

MR DOWLING: Yes, yes. We're content with that. There's only one other objection that I'll trouble you with at all today and that's Mr Lee.

PN774

THE COMMISSIONER: Sure.

PN775

MR DOWLING: But I understand – and it's only with respect to one or two sentences in one paragraph. I understand my learned friend is getting instructions on it as we progress.

PN776

THE COMMISSIONER: All right. If you can resolve that, that's good, but if you can't we'll deal with it when we get to it. Thanks.

PN777

MR DOWLING: Thank you, Commissioner.

PN778

MR MURDOCH: I call Ms Richards.

PN779

THE ASSOCIATE: If you could remain standing? Thank you. If you could please state your full name and address?

PN780

MS RICHARDS: Amy Evelyn Richards (address supplied).

<AMY EVELYN RICHARDS, SWORN [2.52 PM]

EXAMINATION-IN-CHIEF BY MR MURDOCH [2.52 PM]

PN781

THE COMMISSIONER: Good afternoon, Ms Richards. I'll give you to Mr Murdoch.

PN782

MR MURDOCH: Ms Richards, could you give your full name to the Commission, please?‑‑‑Amy Evelyn Richards.

*** AMY EVELYN RICHARDS XN MR MURDOCH

PN783

What's your present occupation, Ms Richards?‑‑‑Senior HR/IR adviser at EGL.

PN784

Have you provided a statement for use in this proceeding that was signed by you on 15 September 2015?‑‑‑Yes.

PN785

Do you have a copy with you, Ms Richards?‑‑‑Yes, I do.

PN786

Could I ask you please to go to paragraph 70 and could I just ask you to note that as a result of an objection that was raised in paragraph 70 the words, looking at the first line:

PN787

And let him do the talking. It was my impression from the way –

PN788

won't be now relied on. Could you then please go to the last line? And you note that the words that:

PN789

He was clearly speaking on behalf of the group –

PN790

won't be relied on. Can I then ask you to go to paragraph 1 through to 3 of your statement and can I just ask you in respect of what you've referred to there in paragraph 1 through to 3 in that memorandum? Can you just explain why you prepared that memorandum?‑‑‑So, typically, I would send the meeting locations to the administration team for inclusion in the pre-start document.

PN791

Yes?‑‑‑So on this occasion I missed the cut-off for the pre‑start, so a separate memo was prepared and attached to that document.

PN792

You've also provided a reply statement?‑‑‑Yes.

PN793

That's a statement that was signed by you on 24 October 2015?‑‑‑Yes.

PN794

Can you go to paragraph 41 of that document, please?‑‑‑Yes.

PN795

Do you have that?‑‑‑Yes.

*** AMY EVELYN RICHARDS XN MR MURDOCH

PN796

On the third line of paragraph 31, do you wish to delete the word "delegates" and replace it with the word "members"?‑‑‑Yes, please.

PN797

You've also provided a supplementary statement?‑‑‑Yes.

PN798

That was signed by you on 17 December 2015. Is that so?‑‑‑That's right.

PN799

Bearing in mind the couple of clarifications that I've taken you to, are the contents of each of your three statements that you've given true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.

PN800

Yes. I tender each of those three statements, Commissioner.

PN801

THE COMMISSIONER: I'll admit the statement of Amy Richards dated 28 August 2015 as exhibit 5, the statement of Amy Richards dated 24 October 2015 as exhibit 6 and the supplementary statement of Amy Richards of 17 December 2015 as exhibit 7.

EXHIBIT #5 WITNESS STATEMENT OF AMY EVELYN RICHARDS DATED 28/08/2015

EXHIBIT #6 WITNESS STATEMENT OF AMY EVELYN RICHARDS DATED 24/10/2015

EXHIBIT #7 SUPPLEMENTARY WITNESS STATEMENT OF AMY EVELYN RICHARDS DATED 17/12/2015

PN802

MR MURDOCH: That's the evidence‑in‑chief. May it please the Commission.

PN803

THE COMMISSIONER: Mr Dowling.

CROSS-EXAMINATION BY MR DOWLING [2.57 PM]

PN804

MR DOWLING: Thank you, Commissioner.

PN805

Ms Richards, if I could just firstly confirm the position you held at the relevant time, and still hold. Your evidence is that you are the senior HR/IR adviser and I think you say as at 28 August you had for 12 months been the HR manager for UGL at Ichthys?‑‑‑That's correct.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN806

Is that correct?‑‑‑That's right.

PN807

Are you still the HR manager for UGL at Ichthys?‑‑‑No. I was acting in that role and my present title is senior HR/IR adviser.

PN808

And who is the HR manager for UGL at Ichthys now?‑‑‑Jos Smith.

PN809

Sorry?‑‑‑Jos Smith.

PN810

How is it you were acting in the role?‑‑‑I was asked to act in the role for a period of time until the project was big enough that extra support was required.

PN811

In the capacity you were acting at the time, firstly, the HR manager – when I say "at the time" I mean 10 and 12 June of 2015 you say you had responsibility for, you say in a paragraph in your statement, human resources and industrial relations. Is that correct?‑‑‑Yes, that's correct.

PN812

Should we understand that being responsible for human resource and industrial relations includes the responsibility at UGL for supervising right of entry site visits by union officials?‑‑‑That's correct. At CCP, yes.

PN813

And those duties also include liaising with those union officials about that right of entry and dealing with any issues as they arise during that right of entry. Is that correct?‑‑‑Correct.

PN814

In respect of the industrial relations component also of those duties, is it fair to say that those duties include dealing with the concerns of members, as raised through their delegates or officials?‑‑‑Yes.

PN815

Can I then deal with the events of 10 and 12 June of 2015? I think you say that you were the person responsible for allocating the meeting rooms to the three officials on those two days – to the three unions on those two days. Is that correct?‑‑‑That's right.

PN816

I think you also accept, but could you confirm it for me please, in respect of the training room that was allocated to the CFMEU, you accept that that is not a room in which one or more persons who may have been involved in any CFMEU discussions regularly or ordinarily take their meal or other break?‑‑‑That's correct.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN817

It's not a room that was provided by UGL or JKC for the purpose of taking meals or breaks. Is that correct?‑‑‑That's correct, yes.

PN818

Is it also correct then that you understood that if there was a failure to agree on the training rooms, the appropriate room, the Fair Work Act provided that the default should be a room in which someone who's to participate in that discussion ordinarily takes their meal or other break?‑‑‑Yes, that's correct.

PN819

So when it was clear to you on 10 June that there was not an agreement that the training room was appropriate, the Act required that the default should be a room in which members of the CFMEU ordinarily take their meal breaks or other breaks?‑‑‑Yes.

PN820

But as I understand it from your evidence, there was no offer of an alternative room to the CFMEU which was a room in which CFMEU members ordinarily take their break. Is that correct?‑‑‑I wasn't escorting the CFMEU right of entry on that day, but, yes, I understand that's the case.

PN821

But you were the person responsible for the allocation of rooms?‑‑‑That's right, yes.

PN822

And once it came to your attention that they did not agree with the training room, wasn't it also your responsibility to come up with an alternative room that accorded with your obligations under the Act?‑‑‑So it would be the responsibility of the relevant escort, which I wasn't escorting that particular meeting.

PN823

That's Ms Garland. Is that correct?‑‑‑Ms Garland was there, but it would have been Mr Spratt on behalf of UGL as the escort.

PN824

Because I think Mr Spratt tells us, to be fair to you, that on 10 June he wasn't really in charge because it was a handover period?‑‑‑That's right.

PN825

So I think he's saying, "Sorry it's not me." Does that make it Mr Newton, does it, or does it make it you?‑‑‑So I wasn't escorting that particular meeting. So whilst I allocated the training room as the meeting area, I wasn't there to be involved in any discussions around the alternative. I was at the west end at the time escorting Mr Wilkins, or meant to be escorting Mr Wilkins. So I believe Mr Spratt, Mr Newton and Ms Garland were there present.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN826

Should we understand from that that if you were involved and it was clear to you that the training room wasn't appropriate, you would have come up with an alternative room outside the training room – a room that accorded with your obligations under the Act?‑‑‑If I was the escort then I would have worked with the organiser to come up with another arrangement. Yes.

PN827

You wouldn't have simply insisted on the training room. That's your evidence?‑‑‑I would have assessed what the situation was at the time.

PN828

But the Act would not have entitled you to insist on the training room. You agree with me?‑‑‑Yes.

PN829

I take it then that given the same thing occurred on the 12th?‑‑‑Yes.

PN830

Was there some discussion between the 10th and the 12th that, although you weren't with them on the 10th, you learned shortly after, I take it, that the CFMEU were not content with the training room?‑‑‑Yes.

PN831

So come the 12th, you are the person that allocates the room on the 12th?‑‑‑That's right.

PN832

Is that right?‑‑‑Yes.

PN833

Isn't it fair to say that you would expect that given they weren't satisfied on the 10th, they weren't going to be satisfied on the 12th also?‑‑‑Likely, yes.

PN834

Did you give instructions to any escort, or anyone else, that given our obligations in the Act, "If they're not satisfied with the training room on the 12th," as they weren't on the 10th, "we should come up with an alternative that accords with our obligation under the Act"?‑‑‑Yes.

PN835

Did you give those instructions?‑‑‑I didn't give those instructions, no.

PN836

Why didn't give you those instructions?‑‑‑Because the escort, I believed, was aware of those obligations.

PN837

So knowing that it was likely that there was going to be an objection to the training room again ‑ ‑ ‑?‑‑‑Yes.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN838

You didn't make any provision for an alternative room for the CFMEU that was in accordance with your instructions under the Act?‑‑‑So ‑ ‑ ‑

PN839

Is that your evidence?‑‑‑So UGL would have had no issue if they chose to revert back to the default as the crib room if they weren't happy with the training room.

PN840

That's not the question I asked you. Knowing that there might be some disagreement again with respect to the training room, did you make provision for an alternative meeting room for the CFMEU?‑‑‑No.

PN841

Are you able to say why?‑‑‑Because there's not really any other suitable meeting rooms available for us to use at that time.

PN842

You know, of course – and you knew on 10 June – that the stores area had previously been used for a meeting, don't you?‑‑‑Yes.

PN843

So I take it, given you knew that the stores area had previously been used for a meeting, that at some point you had considered that that was suitable for a meeting?‑‑‑Yes. The purpose of the stores isn't for a meeting. It's a work area. However, I have agreed on previous occasions, and would again if they requested to use the stores area.

PN844

Would again today. Is that your evidence?‑‑‑No, not today because now we have other locations available for them.

PN845

But at the time you didn't?‑‑‑That's right.

PN846

So is it your evidence that an alternative on the 10th and 12th could clearly have been the stores area?‑‑‑Yes.

PN847

Should we understand then also that you would have had no objection to the stores area being used on 10 and 12 June?‑‑‑Had it been requested prior, an assessment would have been made as to whether it was being used for other reasons if there was work going on in that area and had it been clear then, no, I wouldn't have had any objections.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN848

You say "prior", what I'm suggesting to you is had it been suggested then and there when it became clear there on the day at that moment, "This isn't going to work, let's go to the store room," you're okay with that. You don't have a problem with that?‑‑‑Yes. Provided that it was safe to do so and there wasn't any other work going on in the area. Yes.

PN849

And you're not aware of any reason why on the 10th or the 12th the stores area was unsafe?‑‑‑No, I'm not aware of any.

PN850

Is it fair to say that on the morning of the 10th, given there was going to, you expect, be a disagreement about the training room that a prudent course might have been to say, "Well, look, we've used the store area before. Why don't you just give them that as the alternative"?‑‑‑Had it been requested; however, in the past I've never allocated that to them. It's only been allocated at the request of the organiser.

PN851

There was a request made on the 10th and on the 12th, "We don't want to go to the training room. We want to go to the stores." That's not one you have a problem with?‑‑‑Had they requested at the time and had it been available for use, then I wouldn't have had a problem with that.

PN852

I take it from your evidence earlier that there's some delegation of responsibilities to the West Australian Chamber of Commerce and Industry that you leave it to them to sort out these things so that had the CSNT person been escorting them around and it had been put to the CSNT person, "Can we go to the stores?" and they'd said "yes" you wouldn't have had a problem with that either?‑‑‑I would think that it would have had to have been a UGL representative that would have allowed that; one of the site managers that were there at the time.

PN853

I don't understand that to be consistent with the evidence you gave a moment ago that you wouldn't necessarily come up with an alternative because that's something that the CSNT person can deal with. Isn't this that very situation?‑‑‑No, sorry. I wouldn't think - Construction Services Northern Territory would be responsible for escorting, but I wouldn't think that they'd be – well, they're not responsible for agreeing or not agreeing to a stores area being used, which is a work location of UGL's.

PN854

But as things stand at the moment looking back in hindsight one solution might have been prior to the 12th to say, "Look, there's going to be a problem here," because there was on the 10th, "Why don't we just allocate to them the stores area?" Do you see that that would be a practical solution?‑‑‑I wouldn't. I wouldn't have allocated it without the request of the organiser for the very reason that it's an outside area and I would consider the training room more comfortable, being an inside air‑conditioned ‑ ‑ ‑

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN855

But you knew of course by the 12th ‑ ‑ ‑?‑‑‑Yes.

PN856

You knew that they'd requested that very thing on the 10th?‑‑‑And had they requested it again and I was present, I wouldn't have had an issue with that.

PN857

Nothing has changed between the 10th and the 12th?‑‑‑Yes.

PN858

But on the 10th you understand they said, "We don't want the training room. We want the stores area"?‑‑‑Yes.

PN859

You know that whole scenario is going to play out again. You know that they on the 10th requested the stores area?‑‑‑Yes.

PN860

Are you saying, is your honest evidence to the Commission, "Well, we didn't want to give them the stores area, even though they wanted it the day before yesterday, because we'd wait till they asked us again." Is that your evidence?‑‑‑Yes.

PN861

If I can just deal with 10 June again. You give some evidence that at about 8.45 on 10 June you have a conversation with Mr Paul Springer, the AMWU delegate?‑‑‑Yes.

PN862

Do you recall that evidence in your statement?‑‑‑Yes.

PN863

I think it's Mr Springer that tells you that union members will be meeting in the stores area?‑‑‑Yes.

PN864

The very area we've been talking about?‑‑‑Yes.

PN865

You say to him, "Well, they've been allocated different areas." All right? And that's the end of that conversation until at or about 10.30 you and Mr Gittus speak to Mr Springer again?‑‑‑That's right.

PN866

Again, you say – he confirms that they want to go to the stores area and again you confirm, "Well, they've been allocated other areas"?‑‑‑That's right.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN867

Is it fair to say that at no point during that discussion does Mr Springer tell you that they will not be meeting in the stores area?‑‑‑At the beginning of the conversation, he made it very clear they would not be meeting in the stores area – sorry, they would be meeting in the stores area.

PN868

Yes?‑‑‑By the end of the conversation he said he would seek further advice as to whether they would still do that.

PN869

At no point, I think it's fair to say on your evidence – at no point does he come back to you, "We will not be meeting in the stores area"?‑‑‑That's right.

PN870

Should we understand then from the sum of those two meetings that it was your expectation come the afternoon of the 10th that we were going to have union members going to the stores area to meet?‑‑‑Yes.

PN871

So knowing that union members would be going to the stores area, was it still your view that – and I take it, given Mr Springer is an AMWU delegate, you had an expectation that those members going to the stores area would include AMWU members?‑‑‑Yes.

PN872

Perhaps a significant number of them?‑‑‑Yes.

PN873

Knowing that, though, you decide to proceed with your plan to send Mr Wilkins to the opposite end of the facility?‑‑‑The plan was already in place, yes.

PN874

But knowing now, well, clearly this going to be an issue, we're going to have AMWU members in the stores area, you still thought, "Well, let's get Mr Wilkins to the other end of the facility." That was still what you thought was the best way to deal with the problem?‑‑‑So I wasn't aware until I proceeded to the west end that all of the AMWU members were heading to the stores area. The way the conversation left with Mr Springer was that he was going to seek further advice as to what they were going to be doing and that was the last of the conversation.

PN875

I think we've already worked out from your evidence that he didn't come back to you and say they wouldn't be going to the stores area?‑‑‑That's right.

PN876

And the sum result of the two discussions with Mr Springer is you very well expected that the AMWU members would be going to the stores area. Is that right?‑‑‑I thought there would be a good chance, yes.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN877

So what I'm suggesting to you, the way you chose to deal with that is still to send Mr Wilkins to the other end of the facility, fully expecting you're going to have AMWU members in the stores area. Is that right?‑‑‑That's right, yes.

PN878

As it transpires - sorry, the other elements of course of this plan of yours is that the CFMEU would be allocated the training room?‑‑‑That's right.

PN879

And the ETU would be allocated crib 4?‑‑‑That's right.

PN880

As it transpired with respect to Mr Wilkins, he doesn't get out of the car at all, does he?‑‑‑No.

PN881

He's in a car with Mr Lee. When he says he wants to go to the east end to speak to his members, he's told, "You can't," and he's escorted off the site. Is that correct?‑‑‑That's right.

PN882

Sorry, just let me clarify one thing. At this point when you've gone to the west end, your evidence is you see AMWU members walking to the east end stores area, don't you?‑‑‑On the path to the west end, yes, I did. Yes.

PN883

At the start of the afternoon, you had an expectation they would be going?‑‑‑They ‑ ‑ ‑

PN884

But by this point you know that they are going?‑‑‑That's right.

PN885

Mr Wilkins is still going down the other end and at some point Mr Lee speaks to you?‑‑‑That's right.

PN886

Is that right?‑‑‑Yes.

PN887

And tells you, "Mr Wilkins is going to head off. I'm going to take him off the site because he doesn't want to go to the west end. He wants to go to the east end"?‑‑‑That's right.

PN888

So, again, you know now not only is it an expectation, now it's a certainty. You've got AMWU members in the stores area?‑‑‑Yes.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN889

You've got Mr Wilkins, who was down the other end and is now sent off the site. Don't you think a prudent course would have been to allow Mr Wilkins to go and tell the AMWU members either to go somewhere else or, at least, to address them?‑‑‑I wasn't Mr Wilkins escort on the day, so that wasn't my decision.

PN890

But you know Mr Lee is his escort and Mr Lee speaks to you and says, "I'm going to take him off the site." Now, at that point I'm suggesting to you, you could have said, "Well, come on. Let's resolve this in a practical way, Daniel. Let him come up here and speak to the AMWU members and he can take them down the other end or he can speak to them in a crib room, but if you take him off site you'll have a whole lot of AMWU members in the stores area with no official." You're okay with that?‑‑‑They weren't with no official. They were with two other officials of another union. Yes.

PN891

They were with officials of the ETU and the CFMEU?‑‑‑I believe so. Yeah.

PN892

And you were okay with them dealing with the other officials of the other unions?‑‑‑No, we weren't, which is why we allocated the west end where they would ordinarily crib.

PN893

But what I'm suggesting to you is if you had a problem with the AMWU members being with the CFMEU and the ETU, why didn't you deal with it by allowing Mr Wilkins to go and get them or speak to them? Is there a reason?‑‑‑Like I said, I wasn't in the car. I wasn't there. It wasn't my decision. I was asked the question, "Is the west end the correct location?" and I said "yes". That was the extent of our discussion.

PN894

So whose decision is it?‑‑‑Well ‑ ‑ ‑

PN895

You're the allocator?‑‑‑So it's Daniel Lee's as his escort to decide whether he is on site or not.

PN896

Did you think as the person who allocated the three rooms, as soon as you speak to Mr Lee, and clearly there's going to be a problem because there's AMWU members and you don't want them with the CFMEU or the ETU. The way to deal with that is to get the AMWU to go up there. Did you think as the person who allocated the room maybe a prudent thing is to say to Mr Lee, "Okay. Well, why don't you bring Mr Wilkins up here to talk to his members?" Did you think that would be prudent?‑‑‑No, I didn't.

PN897

Did you suggest it to Mr Lee?‑‑‑No.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN898

Did you suggest it to anyone, Mr Gittus?‑‑‑No. Mr Gittus was with me.

PN899

Did you raise it with Mr Gittus, "Maybe we could deal with this problem, Mr Gittus, by just letting him see his members rather than sending him off site"?‑‑‑No, I didn't say that.

PN900

Can I just confirm, you might not know because I think your evidence is that Ms Garland was the person supervising Mr Haire and Mr Cummins, but to the best of your knowledge did both Mr Haire and Mr Cummins sign in appropriately?‑‑‑I don't know. I wasn't there.

PN901

Perhaps I can summarise this: was there any complaint directed to you about the manner in which Mr Cummins or Mr Haire signed in, carried out their visitor inductions, wearing PPE, signed in again at UGL? Was any issue raised with any of that with you as the HR person at UGL?‑‑‑With regards to them signing in?

PN902

Yes?‑‑‑No.

PN903

Or their conduct during that process?‑‑‑During the sign in process?

PN904

Yes?‑‑‑No.

PN905

I think it's your evidence given a moment ago and consistent with your statement that you went to the west end. As you were going to the west end you were seeing workers, AMWU workers included, go to the east end?‑‑‑Yes.

PN906

You're told by Mr Lee at some point that Mr Wilkins is being sent off the site?‑‑‑Yes.

PN907

So you decide that you'll go back up to the east end?‑‑‑So by the time Mr Lee phoned me, I was at the west end.

PN908

Yes?‑‑‑And after that phone call, yes, I walked back to the east end.

PN909

You thought, "There's no point me being here because" ‑ ‑ ‑ ?‑‑‑Nobody is ‑ ‑ ‑

PN910

I take it you could see no AMWU members?‑‑‑That's right.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN911

And you could see no AMWU official?‑‑‑That's right.

PN912

So I take it again in terms of numbers, you must have known, given how many AMWU members there are, there must be a hell of a lot of them down there at the east end because there's none of them here. Is that fair?‑‑‑I mean I didn't walk inside the crib rooms. I was in the crib area. I wasn't aware of how many people were sitting inside the crib rooms but, yes, it was my – I gathered that the majority of them were at the stores area.

PN913

You didn't see any in the west end personally?‑‑‑Yes. I mean, I saw people walking around, filling up drink bottles, having their lunch. There was still people in the area.

PN914

I'm saying did you see any people that you recognised as an AMWU member in the west end?‑‑‑I don't recall. I'm not sure.

PN915

So you're in the west end. You're told by Mr Lee that - you've seen the AMWU members walk up?‑‑‑Yes.

PN916

You're told by Mr Lee that Mr Wilkins is going off site?‑‑‑Yes.

PN917

So you head back towards the west end?‑‑‑That's right. East end.

PN918

Sorry, the east end?‑‑‑Yes.

PN919

My apologies. You get back there still before the end of the lunch break. It might be quarter past 2, 20 past 2, something like that?‑‑‑Earlier, I believe, but, yes, it was during the break still.

PN920

And I think your evidence is that at 2.21 ‑ ‑ ‑?‑‑‑Yes.

PN921

Mr Cummins and Mr Haire come to see you, amongst others to say, "The members have got some issues and they'd like us to meet with you with a view to resolving the issues"?‑‑‑Yes.

PN922

That's at or about 2.21, I think, on your evidence?‑‑‑Yes.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN923

Should I understand correctly that Mr Haire and Mr Cummins don't return to the meeting with the members after that point?‑‑‑That's right.

PN924

So they've left it before it concludes?‑‑‑Correct.

PN925

And they don't go back to it?‑‑‑That's right.

PN926

At some point Mr Gittus and Mr Newton address that meeting of members, don't they?‑‑‑Yes.

PN927

That's some time at around 2.30?‑‑‑It was after 2.00. I think it was about 2.35.

PN928

Okay?‑‑‑Yes.

PN929

But of course Mr Haire and Mr Cummins are well and truly gone by then?‑‑‑That's right, yes.

PN930

Sorry, I withdraw that. Just in terms of the time chronology, you go - I think your evidence is – to the front gate at or about 2.45?‑‑‑Yes.

PN931

At the front gate there is a discussion there between you, Mr Lee, Ms Garland, Mr Gittus with the three officials that are now at the front gate?‑‑‑Yes.

PN932

Mr Wilkins is at the front gate because Mr Lee has brought him there?‑‑‑That's right.

PN933

And Mr Haire and Mr Cummins have gone there after 2.21, or thereabouts, to discuss the issues?‑‑‑Yes.

PN934

I think the position is before you meet with them, you have a discussion with Mr Gittus?‑‑‑Mr Gittus and I travelled down to the gate together, yes.

PN935

You have a discussion which Mr Gittus says, "I don't want to discuss the issues with them"?‑‑‑That's right.

PN936

In fact, "I'm not going to discuss the issues with them. The workers have got to go back before we even discuss the issues with them"?‑‑‑That's right.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN937

So should we understand from that that come your meeting at the gate, Mr Gittus, or you, were not fully aware of what all the issues were and you didn't want to know – sorry, you'll have to say yes?‑‑‑Yes.

PN938

You weren't fully aware of what all the issues were?‑‑‑That's right, yes.

PN939

It was Mr Gittus' view that he didn't want to know what all of the issues were. He only wanted one thing before any discussion would start?‑‑‑We knew from the chanting that happened in the meeting that the big issue was LAFHA, but we weren't aware of what other issues they wanted to discuss.

PN940

So you knew one issue?‑‑‑Yes.

PN941

But you didn't know the others?‑‑‑That's right.

PN942

And it was Mr Gittus' intention and your intention under his instruction not to find out what the others were?‑‑‑That's right.

PN943

Can I ask you about the next day, 11 June? Ultimately, it's decided on 10 June that you will return – sorry, not you - you'll return the next day, as you do every other day – but Mr Cummins and Mr Haire and Mr Wilkins will also return to discuss the issues that the members have raised?‑‑‑That's right.

PN944

It's some time – just to establish the chronology, it's sometime after about 10 past 7 that you, together with Mr Spratt and Mr Gittus, see Mr Cummins and Mr Wilkins and Mr Haire?‑‑‑Yes.

PN945

The first thing that one of those three asks you is, "Where are the delegates"?‑‑‑That's right.

PN946

It's you that says, "Well, there was no request for delegates to be here"?‑‑‑That's right.

PN947

Again, one of the officials, you're not sure whom, says, "Well, look, we thought that was a given"?‑‑‑Yes.

PN948

"We didn't think we'd have to ask for that. We thought they were going to be here"?‑‑‑Yes.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN949

So I take it that you and everybody else understood at that point that there's been some misunderstanding. They thought the delegates were going to be there and you didn't think the delegates would be there?‑‑‑That's right.

PN950

The other thing they say to you – one of the things you say is, "Well, you had some discussion with them yesterday. You should know what the issues are." But their response, their repose to that is, "Well, look, they know all the detail"?‑‑‑That's right.

PN951

"And that's why we want them here"?‑‑‑That's right.

PN952

Do you accept that that's a fair position for them to hold, "Let's get the people here who know all of the detail"?‑‑‑Had it been requested then we may not have had an issue with it.

PN953

Right?‑‑‑Yes.

PN954

Is it fair to suggest that it's effectively being requested now?‑‑‑Yes.

PN955

"Let's get them here now. We might have had a misunderstanding"?‑‑‑Yes.

PN956

"But let's resolve it. Let's get them here now"?‑‑‑Yes.

PN957

But it was your decision, was it, that you would not get the delegates there?‑‑‑The conversation went for all of 20 seconds and the organisers all made it pretty clear that they weren't willing to have a discussion and took off before any further discussion was had.

PN958

Are you suggesting to the Commission now that you were quite willing to get the delegates there?‑‑‑No, that's not what I'm suggesting.

PN959

In fact, the position is you made – your position was made very clear. You were not going to get the delegates?‑‑‑At that point, no, we were not going to get the delegates.

PN960

And Mr Gittus made his position very clear as well. He was not going to get the delegates?‑‑‑Yes.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN961

Can you explain to the Commission why it is that you were not going to get the delegates at this time, sort of quarter past 7, or whatever it is, on the morning of the 11th?‑‑‑So all of the delegates were at work, so they were on site. It hadn't been arranged prior. It hadn't been arranged to take them off the job and we were down at the front gate, which is a 15-minute drive from the CCP. So, yes, at that point the discussion was that, "We're here now. We'd like to discuss the issues with you. We're not going to drive back and go and organise the delegates."

PN962

One of the reasons, I take it from your evidence, that you didn't want to organise the delegates was because they were working?‑‑‑I believe – as far as I knew, yes.

PN963

Firstly; and secondly, because it hadn't been prearranged with those delegates that there was going to be a meeting?‑‑‑That's right.

PN964

They weren't expecting it and they were working?‑‑‑Well, it turns out they were expecting it. I didn't know that they were expecting it.

PN965

But then what happens, after you make your position very clear that the delegates are not going to be there, the officials leave, suggesting that they'll be back tomorrow?‑‑‑That's right.

PN966

Is it right that really you understood that they've got to come back tomorrow because we wouldn't let them talk with the delegates. That's what they're saying to you, "You wouldn't let us discuss these issues with the delegates, so we're going to have to come back tomorrow." You understood that's what they were saying?‑‑‑Yes, yes.

PN967

So the very next thing you do is you return to the site and you arrange a meeting with the delegates for 8 am?‑‑‑Yes.

PN968

I understood you to say a moment ago that the reasons you didn't want the delegates to be involved was because they were working and because you had a view that they weren't expecting a meeting, but that didn't stop you from trying to arrange a meeting for 8 am with those very same delegates?‑‑‑That's right. So after the organisers left, the discussion was had that we need to resolve these issues and a decision was made and I was requested to organise for the delegates to come in for an 8 am meeting to discuss the issues.

PN969

Who requested you do that?‑‑‑I don't recall; either Mr Gittus or Mr Spratt.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN970

I think Mr Spratt has told us again, "Not me. I was in a handover"?‑‑‑Yes.

PN971

Does that mean it would be Mr Gittus, does it?‑‑‑It could have been.

PN972

What position does Mr Gittus hold now?‑‑‑National IR manager for UGL.

PN973

So what I fail to understand is a decision is made some time between 7.15, and I'm guessing, 7.45 that it's now okay to pull the delegates off the site and it's okay to have a discussion with them, but it wasn't okay half an hour or 15 minutes ago when the organisers wanted it?‑‑‑It ‑ ‑ ‑

PN974

Can you explain what has changed?‑‑‑So on return to site, and it was abundantly clear that we had not resolved any issues, a decision was made that we would pull the delegates in to have a discussion about what the issues were.

PN975

But it was abundantly clear to you 30 minutes earlier that you hadn't resolved any issues either?‑‑‑Which is what we were heading to the front gate to do with the organisers.

PN976

When it became abundantly clear to you that the organisers would not resolve any issues without the delegates, wouldn't that have been the opportune time to say, "Okay. If we want to resolve the issues – if we genuinely want to resolve issues with these organisers, let's go and get the delegates"?‑‑‑Yes.

PN977

Would that have been the opportune time?‑‑‑We could have done that. Yes.

PN978

I just fail to understand why you didn't do that. Are you able to explain why you didn't do that at the time?‑‑‑We didn't do that at the time because there hadn't been a previous request and it wasn't my decision to pull however many delegates there were off the project. That's not my decision.

PN979

That's Mr Gittus' decision?‑‑‑No. It would be the site manager's decision.

PN980

Mr Newton?‑‑‑Mr Newton and Mr Spratt collectively, I would imagine.

PN981

Not Mr Spratt. He's told us, "Not me." So does that mean we should assume it's Mr Newton?‑‑‑Mr Newton wasn't there when we went for the meeting, but, yes, I would imagine during a handover period that collectively the two of them would have made a decision.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN982

That's not consistent with Mr Spratt's evidence, just to be fair to you?‑‑‑Okay.

PN983

He's saying he's not involved in that decision. So for some reason you're not aware of, there's a decision made, "We're not going to get the delegates down here." Half an hour later there's a decision made, "Let's get the delegates off the site now," and you don't know why. You weren't involved in that decision. You don't know why?‑‑‑No.

PN984

I think I've already asked you about the issues in respect of the 12th and what you say – your position with respect to the 12th was very clear. "Regardless of the problems on the 10th, we are going to allocate the same rooms for the 12th. We know we've used the stores room before"?‑‑‑Yes.

PN985

"But that's not a suggestion we're going to make. We know they wanted the stores on the Monday. It's not a thing we're going to offer." Sorry. "We know that's what they wanted on the Wednesday, the 10th. That's not something we're going to offer on Friday the 12th"?‑‑‑That's right.

PN986

That was your position?‑‑‑That's right.

PN987

Can I just confirm with you whether you are aware of in your current role the current meeting arrangements for the CFMEU?‑‑‑Yes.

PN988

Is it correct that the CFMEU now meet in lay down 1?‑‑‑That's right.

PN989

In crib room number 3?‑‑‑I believe so. Yes.

PN990

And that they have met there since shortly after June of 2015?‑‑‑Yes.

PN991

And that they have met there on approximately 14 to 15 occasions since June of 2015?‑‑‑I don't typically escort right of entries anymore, so I don't know the exact number, but, yes, that doesn't sound unusual for that many.

PN992

That many entries would be consistent with your understanding?‑‑‑Yes.

PN993

It's also correct that there has not been any incidents at all about the appropriateness of the meeting facility from the time the CFMEU has been meeting in crib room 3 at lay down 1?‑‑‑That's right.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN994

I suggest to you that they have not conveyed, "they" being any representative, the CFMEU, has not conveyed to you any dissatisfaction with the crib room number 3 at lay down 1?‑‑‑Not to me, no.

PN995

Or to anyone that you're aware of?‑‑‑Yes, that's right.

PN996

Can I also suggest to you that since June of 2015 there has been no meeting in respect of the CFMEU, AMWU and the CEPU that could be described by anyone as a joint meeting?‑‑‑Yes, that's right.

PN997

Can I lastly ask you about the current arrangements for the CEPU? Do you know where they meet?‑‑‑Yes.

PN998

Is it correct that they meet in a large crib room also in lay down 1?‑‑‑That's right.

PN999

The crib room immediately adjacent to crib room 3, the CFMEU room?‑‑‑That's right.

PN1000

And of similar proportions? Do you know what crib room 3 looks like, the CFMEU room?‑‑‑Yes.

PN1001

It's a large room, seats 80 plus?‑‑‑That's right.

PN1002

Is that right?‑‑‑Yes.

PN1003

The CEPU room or ETU room is the same. It's equally a large room seating 80 plus?‑‑‑That's right.

PN1004

And the ETU have met in that room since shortly after June of 2015?‑‑‑Yes.

PN1005

Again, tell me if you don't know the numbers, but I suggest to you that they've met there on approximately seven occasions since June of 2015?‑‑‑That sounds about right, yes.

PN1006

Again, there have been no incidents at all about the suitability of those meeting rooms?‑‑‑Not that I'm aware of, no.

*** AMY EVELYN RICHARDS XXN MR DOWLING

PN1007

Again, there's been no communication with you to suggest in any way that the CPA are dissatisfied with that crib room in lay down 1?‑‑‑Yes, that's right.

PN1008

All right, thank you. Nothing further.

PN1009

THE COMMISSIONER: Mr Sivaraman.

CROSS-EXAMINATION BY MR SIVARAMAN [3.35 PM]

PN1010

MR SIVARAMAN: Ms Richards, your statements, particularly your second statement, your statement in reply, you accept that Mr Wilkins, the AMWU adviser, conducted a right of entry – is it - on 11 November 2014?‑‑‑I don't recall off the top of my head, but if I've addressed it in my statement then, yes.

PN1011

You accept that he conducted a right of entry visit on 4 March 2015?‑‑‑Again, not off the top of my head, but if it's in my statement then, yes.

PN1012

Yes, it is?‑‑‑Yes.

PN1013

Again, on 6 March 2015?‑‑‑Yes.

PN1014

You accept that in those visits Mr Wilkins met his members at the eastern end of the stores area?‑‑‑Yes.

PN1015

There was no dispute about Mr Wilkins meeting with his members on those three occasions in the eastern stores area, was there?‑‑‑I don't believe so. No.

PN1016

It would have been you that allocated the meeting areas, wouldn't it?‑‑‑Yes.

PN1017

You accept that the eastern end stores area is a much larger space than the breezeway in the western end facilities area that you allocated on 19 March for Mr Wilkins?‑‑‑Yes, that's right.

PN1018

You accept that that eastern end stores area has a much greater open space, if I can put it that way, both at the front and the back?‑‑‑Yes, that's right.

*** AMY EVELYN RICHARDS XXN MR SIVARAMAN

PN1019

And, therefore, having a much greater open space would allow for more air flow?‑‑‑Yes.

PN1020

You accept that, don't you, Ms Richards, that the number of AMWU members on the site has increased over time?‑‑‑Yes.

PN1021

You accept that that there have been changes in meeting venues in the past for right of entry visits on the basis of the number of members that union officials would meet with?‑‑‑Yes.

PN1022

You don't deny that for that reason on previous occasion right of entry meetings have been transferred to the eastern stores area?‑‑‑That's right.

PN1023

So on 19 March 2014, you allocated a breezeway within the western end facilities area for Mr Wilkins to hold a meeting, didn't you?‑‑‑I believe so, yes.

PN1024

You did this despite knowing that the – as you've just given in your evidence – that the membership of the AMWU had increased. The AMWU had on three previous occasions met with members at the eastern stores area and that the eastern stores area is larger with better air flow than the breezeway that you allocated. Despite knowing all of this, you still allocated to the AMWU on 19 March the breezeway in the western end facilities area didn't you?‑‑‑That's right, yes.

PN1025

Did it occur to you at the time that allocating – sorry, I withdraw that. Did it occur to you at the time that despite the membership growing and despite the fact that the previous meetings with your consent had been held in a larger area with better air flow, that allocating a small area at that stage might cause difficulty for the union?‑‑‑So in that time the majority of the AMWU classifications had relocated from the east end to the west end. So for that reason, they were allocated the western end crib area.

PN1026

That doesn't really answer my question, but perhaps I'll put it another way. Are you saying that the fact that the membership had grown and that they'd previously met in an area that was bigger was irrelevant to your decision?‑‑‑Sorry, I don't understand the question.

PN1027

You decided on 19 May to allocate a smaller area than the three previous occasions where Mr Wilkins had met with AMWU members?‑‑‑Yes.

*** AMY EVELYN RICHARDS XXN MR SIVARAMAN

PN1028

And you did that despite the fact that their membership has grown and they had previously had a larger area?‑‑‑Yes.

PN1029

Then I asked you, "Didn't you anticipate that that might cause the AMWU difficulties to be moved to a smaller area"?‑‑‑No, because it was the area that they were cribbing at at that time.

PN1030

But isn't it the case that you could have still allocated the eastern stores area again?‑‑‑I could have, but that would mean allocating an area a 10-minute walk from where those employees cribbed.

PN1031

So you say it takes 10 minutes to walk from the western end crib facilities to the eastern end stores area?‑‑‑Give or take, yes.

PN1032

So it didn't occur to you at that time that that area may have been too small due to the increase in membership and the fact that you'd allocated a smaller area?‑‑‑No.

PN1033

Ms Richards, the area that you allocated on 19 May and 10 June 2015 and 12 June 2015 is a breezeway between crib rooms, isn't it?‑‑‑That's right.

PN1034

So unlike the crib rooms, it doesn't have air-conditioning. It doesn't have a microwave so ‑ ‑ ‑?‑‑‑That's right.

PN1035

It's the case, isn't it, that workers will generally take their meal breaks within the crib rooms rather than the breezeway?‑‑‑That's right.

PN1036

It's the case, isn't it, that if you were in one of the adjoining crib rooms, that is adjoining to the breezeway, and the door was closed, you couldn't hear what was being said within the breezeway, could you?‑‑‑No, you couldn't.

PN1037

It's the case you wouldn't be able to participate in a meeting that was taking place in the breezeway, would you, if you were in one of the adjoining crib rooms?‑‑‑That's right.

PN1038

Excuse me one moment. In your statement at paragraph 34 at the top of page 9 where you talk about where the workers were initially allocated a crib room within the western end crib area and then why they couldn't use that room. Then you go on to say:

*** AMY EVELYN RICHARDS XXN MR SIVARAMAN

PN1039

That is a good reason why the AMWU meetings in the western end crib area are being held in the location of the breezeway and adjoining crib rooms.

PN1040

?‑‑‑Sorry, which statement are you referring to?

PN1041

It's the statement in reply?‑‑‑Okay. Number 34?

PN1042

Perhaps an easier way to look at it is the first sentence on the top of page 9?‑‑‑Sure. Sorry, can you repeat the question?

PN1043

If you could look at that first sentence at the top of page 9 you say here that:

PN1044

The AMWU meetings were held in the location of the breezeway and the adjoining crib rooms.

PN1045

But you've just confirmed that there's no way if you're in the crib room that you can hear what's going on in the breezeway?‑‑‑So – that's right. Often what would happen is organisers would move from crib room to crib room within that area. So, no, you couldn't engage in the meeting if you were sitting inside the crib room if they were holding the meeting in the breezeway.

PN1046

That's right. Now, it's the case, isn't it, that since July of last year, Mr Wilkins has been meeting with his members on a regular basis in a larger crib room within the western end facilities area?‑‑‑That's right.

PN1047

Do you deny that Mr Wilkins did not have access to that crib room prior to June of last year?‑‑‑Prior to June of – no, that's right. Yes.

PN1048

Prior to 2014?‑‑‑2015?

PN1049

Sorry, yes?‑‑‑Yes. No. That's right.

PN1050

So you say that Mr Wilkins had access to that room prior to June 2015?‑‑‑No. No, he didn't, because initially the AMWU classifications were allocated to that crib room. They were dissatisfied that there was other classifications within the crib room, and for that reason they moved to small crib rooms, and from that point, no, Mr Wilkins wouldn't have had access to the larger crib room.

*** AMY EVELYN RICHARDS XXN MR SIVARAMAN

PN1051

So do you accept that there would have been workers who weren't within the AMWU's classifications that used that crib room?‑‑‑Back then, yes.

PN1052

Prior to June of 2015?‑‑‑Yes, that's right.

PN1053

And so it would have been JKC's view that Mr Wilkins wouldn't have been able to speak to workers who were not within AMWU classifications. Is that correct?‑‑‑Yes. I would say so, yes.

PN1054

So if there were workers who were not within AMWU classifications, who were using that larger crib room prior to June last year, it would have been JKC's view that Mr Wilkins couldn't have used that room to address his members, wouldn't it?‑‑‑I'm not sure. I'm not sure.

PN1055

But it's your position to allocate rooms, isn't it?‑‑‑That's right, yes.

PN1056

So you must have an opinion?‑‑‑So, yes, and we would have allocated the larger crib room but it was the strong preference of the AMWU delegate that they did not use this room.

PN1057

So your view is it would have been okay for Mr Wilkins to use that room even though there were other workers there who were not within the AMWU's classifications?‑‑‑I think it would have depended on the situation. It's a large crib room. If we're talking a large group of employees at one end of the crib room with some other classifications at the opposite end, then we may not have had an issue with that.

PN1058

So your view is sometimes it is okay for the AMWU to address a – or it would have been okay, I should say, for the AMWU to have a meeting where it might have been that in the same space there were people who were not able to come and listen?‑‑‑That may be the case in any typical crib room anyway. They're not segregated by classification.

PN1059

Now, it's the case, isn't it, Ms Richards, that that current crib room is far larger than the breezeway that you allocated in May and June of last year?‑‑‑Yes.

PN1060

It's also far larger than either of the crib rooms that adjoin the breezeway?‑‑‑Yes.

PN1061

And it – well, we did a site visit yesterday and by various calculations there appeared to be at least 80 seats within that larger crib room?‑‑‑Yes.

*** AMY EVELYN RICHARDS XXN MR SIVARAMAN

PN1062

Compared to somewhere around 16 in the smaller crib room?‑‑‑20, I think, is the smaller crib rooms, yes.

PN1063

And it's the case then, isn't it, that if the AMWU's membership has grown that that larger crib room is a much more suitable room within which to have meetings with members?‑‑‑Absolutely.

PN1064

Now, on 10 June you allocated – 10 June 2015, it was you that decided that the AMU should meet within the breezeway within the western end crib facilities area, isn't it?‑‑‑The crib rooms and the adjoining breezeway, yes.

PN1065

In your statement, Ms Richards, at paragraph 33, if I take you to that paragraph – this is your statement in reply?‑‑‑Yes. Yes.

PN1066

You say there that:

PN1067

As per paragraph 29 of Mr Wilkins' statement, I agree that UGL did advise Mr Springer of a new meeting area, being a breezeway on the western end of the crib area.

PN1068

Do you see that?‑‑‑Yes.

PN1069

Now, there's no reference there to adjoining crib rooms, is there?‑‑‑No, there's not.

PN1070

It's only to the breezeway?‑‑‑That's right.

PN1071

And you accept, as you've given evidence already, that if you're in those adjoining crib rooms and the doors close, you can't hear what's being said in the breezeway?‑‑‑That's right.

PN1072

And it's the case, isn't it, that on 10 June you never directly communicated to Mr Wilkins prior to his arrival at the site, that he had been allocated the breezeway within the western end facilities area for the meeting?‑‑‑No, I didn't communicate that.

PN1073

Now, Mr Dowling cross-examined you on your awareness of where AMWU members would have been on 10 June for the meeting that had been scheduled with Mr Wilkins?‑‑‑Yes.

*** AMY EVELYN RICHARDS XXN MR SIVARAMAN

PN1074

And I think your evidence was you were aware that they may be going to the eastern end stores area, due to a conversation in the morning?‑‑‑Yes.

PN1075

And that by about 2 pm or shortly after, you knew that they were at the eastern end stores area?‑‑‑Yes.

PN1076

So it's the case that when Mr Lee called you, even though you knew the members were at the eastern end stores area, you didn't – sorry – you still told Mr Lee that Mr Wilkins had to meet members at the western end of the crib facility, didn't you?‑‑‑I confirmed that the western end crib area was the allocated meeting room, yes.

PN1077

Mr Lee has stated that – sorry, I withdraw that. Under cross-examination of Mr Dowling, you said – and if I've got this wrong you can correct me, but I think you said that at that time if there was a decision to be made about moving the room – that is at the time of 2 o'clock, around the time of Mr Lee's call to you, if there was a decision to be made about moving the room, it would have been up to the escort. Is that right?‑‑‑Up to the subcontractor representatives that was escorting, yes.

PN1078

However, Mr Lee in a statement that has been filed with the Commission, states that your consent would have been required for meetings to be held in the training room, and that for any transfer of meetings to the eastern end stores area, that would have always been done with the prior consent of UGL, usually obtained from you?‑‑‑Yes.

PN1079

Do you deny that?‑‑‑No.

PN1080

So do you accept then that the ultimate decision-making authority was with you?‑‑‑For Mr Wilkins specifically, are you referring?

PN1081

For the allocation of the room and where Mr Wilkins would meet with members on 10 and 12 June?‑‑‑Yes. Yes.

PN1082

And on 12 June 2015 you again knew that Mr Wilkins was coming on site to exercise right of entry, didn't you?‑‑‑Yes.

*** AMY EVELYN RICHARDS XXN MR SIVARAMAN

PN1083

And at about 2 pm you were aware that the members or workers who were members of the AMWU weren't at the western end crib facilities area, weren't you?‑‑‑Yes.

PN1084

And you still directed Mr Wilkins to come to the western end crib facilities area, didn't you?‑‑‑Yes.

PN1085

And this is despite knowing that you wouldn't have members to meet at that area?‑‑‑I didn't know until we were there, and they weren't there, yes.

PN1086

But even after knowing, you still insisted that Mr Wilkins have a meeting at the western end facilities area, didn't you?‑‑‑I didn't insist that he hold a meeting. I insisted that he didn't walk across the site to the eastern end, yes.

PN1087

Right. The effect of what you insisted was that he would have to remain at that breezeway in the western end facilities area, is it?‑‑‑Yes.

PN1088

But there weren't any members in that breezeway for him to meet with, were there?‑‑‑That's right.

PN1089

And, Ms Richards, do you know how many workers are members of the AMWU?‑‑‑No.

PN1090

So do you know how many members of the AMWU are working or were working, sorry, in June 2015 close to the western end of the crib facilities area?‑‑‑I don't understand the question. How many were cribbing at the western end or how many were employed?

PN1091

How many were employed, that were working close to the western end facilities?‑‑‑I don't know.

PN1092

And you don't know how many members were working on 10 and 12 June, close to the eastern end stores area, do you?‑‑‑No.

PN1093

Now, when Mr – if I could go back for a moment to that meeting on 19 May 2015 which was held at the breezeway?‑‑‑Yes.

PN1094

It was Mr Lee that escorted Mr Wilkins to that meeting, wasn't it?‑‑‑I don't recall off the top of my head, no.

PN1095

But were you present at that meeting?‑‑‑I believe so. I don't recall, off the top of my head but I believe I was.

*** AMY EVELYN RICHARDS XXN MR SIVARAMAN

PN1096

So you're not sure?‑‑‑No.

PN1097

So if you're not sure whether you were at that meeting, then you couldn't be sure as to how many people were at that meeting, could you?‑‑‑No.

PN1098

So you couldn't be sure then as to how crowded that meeting in the breezeway was, could you?‑‑‑No.

PN1099

So you couldn't be sure as to whether it was too crowded for Mr Wilkins to properly conduct the meeting, could you?‑‑‑I would just like to refer to my statement quickly as I'm just trying to recall if I was there.

PN1100

Well, Ms Richards, you certainly can't recall now, can you?‑‑‑No.

PN1101

No. Thank you. Now, Ms Richards, Mr Dowling asked you about - some questions about agreeing to the union's conducting meetings, or I think it may have been, to be accurate, the CFMEU conducting meetings in the stores area?‑‑‑Yes.

PN1102

I think the question was put more generally than that. And about having meetings moved to the stores area?‑‑‑Yes.

PN1103

And whether that would need to happen – or whether that needed to happen again after June of last year?‑‑‑I'm not sure I understand what you're asking, sorry.

PN1104

Let me put it this way. In response to that question, your answer was you wouldn't know or you wouldn't – because there is an agreed area now as to whether or not there needed to be a change of area more recently?‑‑‑I don't understand what you're asking, sorry.

PN1105

I will put it another way. You agree now that the unions are able to meet in an area that's agreed with by the parties. That is in the case of the AMWU they currently meet at an area that is agreed upon both by JKC and the union?‑‑‑By UGL and the union?

PN1106

Sorry. UGL and the union?‑‑‑Yes.

PN1107

And you agree there's no dispute about that meeting area?‑‑‑Currently?

*** AMY EVELYN RICHARDS XXN MR SIVARAMAN

PN1108

That's right?‑‑‑That's right, yes. There's no dispute.

PN1109

Commissioner, I have no further questions. Thank you.

PN1110

THE COMMISSIONER: Thank you. Mr Murdoch.

RE-EXAMINATION BY MR MURDOCH [4.00 PM]

PN1111

MR MURDOCH: Yes, thank you, Commissioner. Excuse me for a moment, Commissioner. I will just check some notes. You were asked some questions in respect of a meeting with some delegates that occurred about half-past 8 on 11 June. Can you recall that you were asked those questions?‑‑‑Yes.

PN1112

Can you tell the Commission where it was that that meeting of the delegates occurred?‑‑‑In the conference room.

PN1113

And the conference room where?‑‑‑At the CCP east end offices.

PN1114

That's the re-examination. Might the witness be excused? Thank you.

PN1115

THE COMMISSIONER: You're free to go, Ms Richards.

<THE WITNESS WITHDREW [4.01 PM]

PN1116

THE COMMISSIONER: Is Mr Lee available?

PN1117

MR MURDOCH: Yes, he is. Yes, there's just one objection that was raised and was held with Mr Lee's - - -

PN1118

THE COMMISSIONER: Well, just before you get to that I was going to propose we have a short break.

PN1119

MR MURDOCH: Thank you.

PN1120

THE COMMISSIONER: Are you content to do that now?

*** AMY EVELYN RICHARDS RXN MR MURDOCH

PN1121

MR MURDOCH: Yes, thank you.

PN1122

THE COMMISSIONER: All right. Let's adjourn for 10 minutes.

SHORT ADJOURNMENT [4.02 PM]

RESUMED [4.19 PM]

PN1123

MR MURDOCH: Commissioner, the next witness is Mr Lee, although my friend has an objection which, despite discussions, has not been resolved, so I might let him deal with that before I call the witness.

PN1124

THE COMMISSIONER: Sure.

PN1125

MR DOWLING: Thank you, Commissioner. The objection pertains to Mr Lee's statement in reply which is dated 22 October 2015, and it's at paragraph 22, the last five lines of that paragraph Mr Lee sets out an opinion, we say, on the operation of the coverage rules of the CFMEU, an opinion that he's clearly not qualified to give, in our submission. So it's commencing, "The CFMEU coverage rules", and the following sentence:

PN1126

Accordingly the CFMEU coverage rules do not apply to, amongst other classifications, scaffolders and riggers.

PN1127

Now, he is responding to membership numbers but that certainly doesn't excuse what is clearly an opinion that he's not qualified to give.

PN1128

THE COMMISSIONER: You want to say anything on this, Mr Murdoch?

PN1129

MR MURDOCH: I'm sorry, Commissioner?

PN1130

THE COMMISSIONER: Do you want to say anything on this?

PN1131

MR MURDOCH: Just briefly.

PN1132

THE COMMISSIONER: Yes.

PN1133

MR MURDOCH: The evidence in paragraph 22, as can be seen from what's said in paragraph 20 and 21, is given in respect of the evidence estimate as the total CFMEU membership that Mr Cummins gives in his statement. The evidence is put forward by Mr Lee to the effect that, whilst Mr Cummins might have a view as to total CFMEU membership, there's a live issue as to, in fact, who is eligible, and, of course, the answer to that issue affects the number of membership. Insofar as what he said in the paragraph that have been objected to, that's not put forward by my client as being anything more than Mr Lee's view or opinion as to the matter, and it's put forward in the context of him responding to Mr Cummins. Ultimately it'll be a question for the Commission as to whether, in fact, that assertion is correct as a matter of law, and I'll address you on that by reference to the eligibility rules when I make submissions. So that's the basis upon which it's: (a) included; and (b) put forward.

PN1134

THE COMMISSIONER: Just bear with us for a second. So am I right in saying this – I note the nature of the objection being just an opinion of someone who's not qualified to give it, Mr Dowling, but is it in connection with the grounds, looking at the application:

PN1135

Held or participated in discussions with employees whose industrial interest their respective unions were not entitled to represent.

PN1136

And is that the reason why this is here?

PN1137

MR DOWLING: I don't understand that to be the case.

PN1138

MR MURDOCH: No.

PN1139

MR DOWLING: No.

PN1140

MR MURDOCH: It doesn't go to that issue.

PN1141

THE COMMISSIONER: No.

PN1142

MR MURDOCH: It goes to – you will have noticed that in the material in the course of the cross-examination there's a debate as to whether the rooms are adequate for the numbers.

PN1143

THE COMMISSIONER: The number. Yes.

PN1144

MR MURDOCH: It goes to that issue.

PN1145

THE COMMISSIONER: Sure. Okay. Look, I'm going to take the same approach again, Mr Dowling. I note the objection and your concern about it that it's purely an opinion. I'm not going to strike it out as such, but it may well end up being something that we get evidence in that people could give their own direct knowledge about evidence and factual issues, and ultimately if there's submissions on it, I could hear that and decide whether there's anything I need to deal with in a decision.

PN1146

MR DOWLING: As the Commission pleases. Thank you.

PN1147

MR MURDOCH: I call Mr Lee.

PN1148

THE COMMISSIONER: Thank you.

PN1149

THE ASSOCIATE: If you could state your full name and address.

PN1150

MR LEE: Daniel Carlton Lee (address supplied).

<DANIEL CARLTON LEE, SWORN [4.25 PM]

EXAMINATION-IN-CHIEF BY MR MURDOCH [4.25 PM]

PN1151

THE COMMISSIONER: Good afternoon, Mr Lee. I'll give you Mr Murdoch, now.

PN1152

MR MURDOCH: Could you give your full name to the Commission, please, Mr Lee?‑‑‑Daniel Carlton Lee.

PN1153

Now, you've provided a statement for use in this proceeding signed by you on 28 August 2015; is that correct?‑‑‑That's correct.

PN1154

Yes. Could I just ask you please to go to paragraph 26 of that statement?‑‑‑Yes.

PN1155

And in paragraph 26 you referred there to attachment marked as DL11?‑‑‑That's correct.

PN1156

Can you see that?‑‑‑Yes.

*** DANIEL CARLTON LEE XN MR MURDOCH

PN1157

And if you then go to paragraph 31, you've referred a second time to an attachment as DL11?‑‑‑Yes.

PN1158

And if we go to the document that's in the statement marked as DL11 we see that it's a map of the CCPP area as referred to in paragraph 31; is that so?‑‑‑That's correct.

PN1159

Yes. Just going back to paragraph 26 you've referred there to a checklist that is the subject of paragraph 26. Can I just show you a copy of a document, and for the record, I'm just showing the witness, Commissioner, attachment JC-7 of Mr Casey's statement. Just have a look at this document, please?‑‑‑Yes.

PN1160

Putting aside the handwriting that's on that document, is that the checklist?‑‑‑That's correct.

PN1161

That you intended to refer to?‑‑‑Yes, I do.

PN1162

Yes. Thank you. That can just come back. Thank you. Now, you've also provided a statement in reply?‑‑‑Yes.

PN1163

And that's a statement that was signed by you on 22 October 2015?‑‑‑That's correct. Yes.

PN1164

Now, with the clarification that you've given to paragraph 26 in your first statement, borne in mind, are the contents of your two statements, true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.

PN1165

Yes. I tender each of those statements, Commissioner.

PN1166

THE COMMISSIONER: I will admit the statement of Daniel Lee dated 28 August 2015 as exhibit 8.

EXHIBIT #8 WITNESS STATEMENT OF DANIEL CARLTON LEE DATED 28/08/2015

PN1167

THE COMMISSIONER: And the statement of Mr Daniel Lee dated 22 October 2015 as exhibit 9.

EXHIBIT #9 WITNESS STATEMENT OF DANIEL CARLTON LEE DATED 22/10/2015

*** DANIEL CARLTON LEE XN MR MURDOCH

PN1168

MR MURDOCH: And that's the evidence-in-chief, may it please the Commission.

PN1169

THE COMMISSIONER: Mr Dowling.

CROSS-EXAMINATION BY MR DOWLING [4.28 PM]

PN1170

MR DOWLING: Thank you, Commissioner. Mr Lee, if I could just firstly confirm your position. It is described in your statement as principal employee relations consultant?‑‑‑That's correct.

PN1171

And you say that you are employed by Construction Services Northern Territory?‑‑‑That's correct.

PN1172

I think, consistent with some evidence we've already had, my understanding is that Construction Services Northern Territory is simply a business name that is held by the Western Australian Chamber of Commerce and Industry?‑‑‑That's right.

PN1173

It's not a corporate entity in any way?‑‑‑No.

PN1174

It's just a business name?‑‑‑It's a business name.

PN1175

So should we understand from that that your wages are, in fact, paid by the Western Australian Chamber of Commerce and Industry?‑‑‑That's correct. Yes.

PN1176

They are your employer in effect?‑‑‑Yes.

PN1177

All right. Now, in your capacity as principal employee relations consultant, from what I understand of your evidence your responsibilities include supervising rights of entry at the Ichthys project?‑‑‑Coordinating right of entries. Yes.

PN1178

Yes, all right?‑‑‑Which includes a certain degree of supervising actual right of entries as well as along with sub-contractors as well.

PN1179

Okay. And that coordinating role then, as well as involving some actual escorting, I take it involves liaising with the person who's being escorted and dealing with any problems that may arise if you can?‑‑‑Yes. Yes.

*** DANIEL CARLTON LEE XXN MR DOWLING

PN1180

All right. That's part of your roles and responsibilities?‑‑‑To make them run as smoothly as I can.

PN1181

All right. That's part of your roles and responsibilities?‑‑‑To make them run as smoothly as I can.

PN1182

All right. Okay. Thank you. Now, I understand that on 10 June you were present at the site?‑‑‑Yes.

PN1183

And you were responsible for escorting Mr Wilkins; is that right?‑‑‑Yes. That's correct.

PN1184

All right. There's also been some evidence that Ms Richards had a – you know Ms Richards?‑‑‑Yes.

PN1185

Ms Amy Richards from UGL?‑‑‑Yes, I do.

PN1186

You know her? You knew her at the time on 10 June?‑‑‑Yes, I did.

PN1187

That she, on the morning of 10 June, had a conversation with Mr Paul Springer. Do you know who Mr Springer is?‑‑‑Yes. He's the AMWU delegate?‑‑‑He was, I think, a delegate with UGL.

PN1188

And the evidence is that Mr Springer advised Ms Richards that AMWU members, and possibly others, wanted to meet on 10 June at the stores area?‑‑‑I don't know that.

PN1189

You don't know about that?‑‑‑No.

PN1190

Didn't Ms Richards have any conversation with you to discuss with you what Mr Springer had said?‑‑‑I don't recall a reference to Mr Springer. We would've had a discussion about, because there was multiple entries, about who was being – who was going where.

PN1191

All right. And I take it that her evidence is that she's the person that's responsible for allocating the rooms to the various union officials within the CCPP area?‑‑‑It would be UGL, and if it's her, then, yes, it was her.

*** DANIEL CARLTON LEE XXN MR DOWLING

PN1192

Well, her evidence is that she allocated the rooms on the 10th and 12th?‑‑‑Yes.

PN1193

All right. And did she have a conversation with you about why she'd allocated particular rooms to particular officials?‑‑‑The only – there would've been a conversation in the morning about where they were going and why. I believe, and I don't specifically recall the conversation, but I believe that the metal workers would've been allocated to the western end because that's where they cribbed.

PN1194

All right. But you don't recall what reason she gave you for - today, sitting in the witness box, you don't recall what reason she gave you for allocating particular rooms to particular officials?‑‑‑No, not ‑ ‑ ‑

PN1195

All right. Okay. But, as you understand it, the person responsible for the allocation – well, perhaps I'll go back one step. The entity responsible for the allocation is UGL?‑‑‑That's correct.

PN1196

And if that person at UGL is Ms Richards, then it's her call?‑‑‑Yes.

PN1197

All right. And should we understand then that if, during an escort, that you're conducting if some issue arises as to the appropriateness of the facility, or a meeting room, that again it's Ms Richards' call as to any new meeting that might be allocated?‑‑‑That's correct.

PN1198

All right. So if Mr Wilkins expressed some dissatisfaction about being sent to the west end because all his members are in the east end, and Ms Richards had said to you on the phone when you spoke to her, "Well, bring him up here to the east end and we'll take him to the stores area", you would've done so?‑‑‑Yes.

PN1199

All right. Thank you. Now, in respect of your involvement on 10 June, firstly, in respect of the sign-in processes and induction processes?‑‑‑Yes.

PN1200

Were you responsible for signing in Mr Wilkins?‑‑‑Yes, I was. Yes.

PN1201

All right. And anyone else? Mr Haire Mr Cummins?‑‑‑No, from recollection I think Ms Garland signed the others in.

PN1202

All right?‑‑‑When I say "signed in" it was the process.

*** DANIEL CARLTON LEE XXN MR DOWLING

PN1203

Yes?‑‑‑The signatures. There's a bit on the form which is basically signed. It's sometimes signed by the security officers in there, and sometimes signed by us.

PN1204

So sometimes the security officers will do it?‑‑‑That's correct.

PN1205

All right. Can you just confirm for me that at least in respect of the 10th that you have no recollection of any issue arising from any of the officials about the sign-in, the induction, their PPE?‑‑‑No.

PN1206

That part of the process all went in a civil and polite manner and there were no problems with it at all?‑‑‑Yes. That's correct.

PN1207

To the best of your recollection on the 10th?‑‑‑Yes.

PN1208

And is that also the best of your recollection on the 12th?‑‑‑That's correct.

PN1209

All right. Thank you. I think in your evidence in reply you give some evidence about the training room that had been allocated to the CFMEU. Do you recall giving some evidence about that?‑‑‑Can you refer to the actual paragraph?

PN1210

If you go to page 5 of your reply statement and you'll see there you're responding to Mr Cummins, and you are describing – well, you are giving some evidence about the adequacy of the training room. Do you see that?‑‑‑Yes, paragraph 21?

PN1211

Yes?‑‑‑Yes.

PN1212

All right. Now, putting aside the numbers, and there's some dispute about the numbers, have you seen that training room recently?‑‑‑Not in the last three months, but – yes, no, not in the last three months, but ‑ ‑ ‑

PN1213

But before that?‑‑‑Yes, I have.

PN1214

Can I suggest to you that there are seats in that training room for 16 people?‑‑‑It's set up with – well, when I recall seeing it, it was set up with tables and chairs for training.

*** DANIEL CARLTON LEE XXN MR DOWLING

PN1215

And all the chairs face one way? There's not chairs on both sides of the table, there's only chairs on one side of the table, because they're all facing the front?‑‑‑I think – I suspect that they are configured depending upon the training arrangements, but, yes.

PN1216

I see. I see. And it has training equipment in it because that's what it is. It's a training room. Yes, it has a projector and screen and ‑ ‑ ‑?‑‑‑Possibly. I don't specifically recall a projector and a screen, but ‑ ‑ ‑

PN1217

You don't recall. And I think the evidence is it has two adjoining offices behind the tables?‑‑‑It does have adjoining offices. Yes. Yes.

PN1218

And there's no doubt that it doesn't have any lunch facilities or eating facilities or cooking facilities or those sorts of things?‑‑‑No.

PN1219

Can I suggest to you, based on all of those things, the adjoining offices, the limited number of seating, the training equipment, the lack of any lunch facilities, that it is something that clearly was not adequate for the CFMEU on 10 June or 12 June?‑‑‑No.

PN1220

You don't agree?‑‑‑No, I don't agree.

PN1221

Now, on 11 June you were aware, are you – tell me if you're not, please, that the three organisers that had attended on 10 June, returned; Mr Wilkins, Mr Cummins and Mr Haire. They returned to have some discussion with representatives of UGL. Are you aware of that?‑‑‑Yes, I am.

PN1222

Did you have some discussions with those members of UGL that were to meet with those officials prior to 11 June?‑‑‑Prior to 11 June?

PN1223

Yes?‑‑‑I had discussions on the 10th obviously.

PN1224

Yes. Sorry, discussions about what was going to occur on the 11th?‑‑‑I know it was basically a follow up from the issues from the 10th.

PN1225

Yes?‑‑‑So it was agreed that they would meet the next day.

PN1226

Yes. There was some dispute, you might understand from the evidence, that where the delegates would attend on 11 June?‑‑‑Yes, I understand that.

*** DANIEL CARLTON LEE XXN MR DOWLING

PN1227

Did you have any discussion with Ms Richards, or Mr Gittus or Mr Spratt about that decision?‑‑‑I believe Mr Gittus, I think it was afterwards, spoke to us about – I mean, they were using our meeting room in the CSNT office.

PN1228

I see?‑‑‑And so ‑ ‑ ‑

PN1229

Spoke to you about what, sorry?‑‑‑That the meeting didn't go ahead.

PN1230

And did he tell you ‑ ‑ ‑?‑‑‑And it was because there was delegates there, and they weren't approving the delegates coming offsite. The meeting was with the union officials, and the union officials, I believe, refused to meet with the other delegates.

PN1231

Did he tell you why he'd made a decision that the delegates wouldn't be at the meeting?‑‑‑No, or I don't recall.

PN1232

You don't recall if he did?‑‑‑No. No.

PN1233

In respect of 12 June, I understand, and this goes for both the 10th and the 12th, you were accompanying Mr Wilkins?‑‑‑That's correct.

PN1234

And you'll be asked some questions about that. But on the 12th you went to the western end of these facilities with Mr Wilkins?‑‑‑That's correct.

PN1235

And then came with him when he returned, or when he then proceeded to the eastern end; is that right?‑‑‑I followed him.

PN1236

You followed him, as I understand it, all the way to the stores area and into the union meeting that was being carried on?‑‑‑That's correct.

PN1237

I think your evidence is you were asked to leave by various union members who were in that meeting?‑‑‑A couple of them, yes.

PN1238

But your evidence is you refused to leave?‑‑‑That's correct.

PN1239

You refused to leave on the basis that you were Mr Wilkins' escort; is that right?‑‑‑That's correct.

*** DANIEL CARLTON LEE XXN MR DOWLING

PN1240

Now, just so I can be clear on CSNT practice, is it the case that when officials come on site to attend a meeting with members and they are escorted that the escort would go into the meeting with the official. Let's say, it's in a crib room, they would go into the crib room with the official?‑‑‑No, they wouldn't. No, they wouldn't.

PN1241

Right. That's not the practice?‑‑‑That's not the practice.

PN1242

So you were, on this day, you were acting inconsistent with what the standing CSNT practice was?‑‑‑What happened on the day was inconsistent with the standard practice of the union officials.

PN1243

I'm not asking about the practice of union officials. I'm asking about the CSNT practice, and you tell me the CSNT practice is not to go into a union meeting?‑‑‑No.

PN1244

But you chose to go in on this particular day?‑‑‑Yes.

PN1245

Did you think that that is something that would assist the situation? Sorry, I'll withdraw that, and let me ask you a couple of things before I ask you that. You knew, of course, that there'd been some disagreement about the meeting room locations on the 10th?‑‑‑Yes.

PN1246

And you knew, of course, that there'd been the same disagreement about meeting room locations on the 12th?‑‑‑Yes.

PN1247

And you're accompanying Mr Wilkins, and in the context of all of the disagreement, you thought, did you, that it was a good decision to go into the union meeting, which is something that CSNT do not normally do? You thought that was a good decision on that day?‑‑‑Yes.

PN1248

Can I suggest to you that that did not help the situation at all. In fact, all it managed to do was get all of the members that were at the meeting additionally upset from the events that had occurred on the 12th and on the 10th?‑‑‑No.

PN1249

Are you saying they were not upset about you being in the meeting?‑‑‑Not really actually. It wasn't ‑ ‑ ‑

*** DANIEL CARLTON LEE XXN MR DOWLING

PN1250

Why is it that they were telling you to leave if they were not upset about your attendance?‑‑‑It was not a fiery meeting or anything like that.

PN1251

But they certainly didn't want you to be there. You understood that?‑‑‑There was a couple that said – yes.

PN1252

It was made clear to you by some of the attendees that they did not want you there?‑‑‑That's correct.

PN1253

And you chose to stay there anyway?‑‑‑Yes.

PN1254

I think your evidence is you say Mr Cummins was running the meeting, but I think you go on to say, well, you saw him talking?‑‑‑Yes.

PN1255

Is it ‑ ‑ ‑?‑‑‑He was the – he was obviously the centre of the meeting.

PN1256

Well, can I suggest to you that all you saw is a meeting in which Mr Cummins was speaking?‑‑‑Yes.

PN1257

And for the brief time you were there, you don't know who he was talking to. And outside of what you overheard, you don't know who he spoke to and what he said; is that correct?‑‑‑That's correct.

PN1258

All right. Lastly, can I just ask you whether you understand the current arrangements, through your role at CSNT, the current arrangements for meetings between officials and members of the CFMEU?‑‑‑Yes.

PN1259

And do you understand it to be the case that the CFMEU now meet in crib room number 3 in the lay down yard number 1, or lay down 1?‑‑‑I'll take your word that lay down yard 1, whether it's crib room number 3 ‑ ‑ ‑

PN1260

I see. You know they meet in lay down 1?‑‑‑Yes.

PN1261

You know they meet in the crib room there, you're just not sure of the number?‑‑‑Yes, exactly. Yes.

PN1262

You do know the room though?‑‑‑Yes, I do.

*** DANIEL CARLTON LEE XXN MR DOWLING

PN1263

Yes. And you know it's a large room?‑‑‑Yes.

PN1264

And it seats in excess of 80?‑‑‑It's a large room.

PN1265

Do you know, through your role at CSNT, that CFMEU officials have met their members there since shortly after June of 2015?‑‑‑It was after June. Whether it's shortly after or August or something like that, I'm not sure.

PN1266

I see. At about ‑ ‑ ‑?‑‑‑It's when they came on line basically and ‑ ‑ ‑

PN1267

So you know it's sometime after June, whether it's June, July or August?‑‑‑Yes.

PN1268

Can I suggest to you that they have met their members there, the officials of the CFMEU, have met their members there on approximately 14 to 15 occasions since June of 2015?‑‑‑It wouldn't surprise me.

PN1269

That's consistent with your recollection of events?‑‑‑They have met there on a number of occasions.

PN1270

There has been, insofar as CSNT and you are aware, no incidents at all about the suitability of that meeting room location; is that correct?‑‑‑That's correct.

PN1271

They had not expressed to you or anyone else at CSNT, that you're aware of, any dissatisfaction with that meeting room?‑‑‑No.

PN1272

Can I also ask you to confirm whether, to the best of your knowledge, there has not been any meeting conducted involving either the CFMEU, the AMWU or the ETU division of the CEPU that might be described in any way as a joint meeting, since June of 2015?‑‑‑That's correct.

PN1273

Can I lastly ask you about the current meeting arrangements for the ETU division of the CEPU?‑‑‑Yes.

PN1274

Do you understand where they meet?‑‑‑Just trying to recollect. Give me a moment. I'm having a mental blank just in regard to the ETU.

*** DANIEL CARLTON LEE XXN MR DOWLING

PN1275

Well, do you understand they meet in the large crib room within similar proportions to the CFMEU crib room in lay down 1?‑‑‑Yes, actually. Yes, I do recall that.

PN1276

And, again, does it accord with your recollection that they have met there since some time, in my view, shortly after June 2015?‑‑‑Yes. Yes.

PN1277

Does it accord with your recollection that they have met there on approximately seven occasions since June of 2015?‑‑‑I don't specifically remember the numbers, but it was a number of times.

PN1278

The number? All right. And, again, is it consistent with your understanding that there had been no incidents about the suitability of those meeting rooms since June of 2015?‑‑‑That's correct. Assuming it's June of 2015.

PN1279

Yes. And to the best of your knowledge no member of the CEPU ETU division has communicated any dissatisfaction about the suitability of those meeting rooms in which they currently meet?‑‑‑That's correct.

PN1280

Thank you. Nothing further, Commissioner.

PN1281

THE COMMISSIONER: Mr Sivaraman?

CROSS-EXAMINATION BY MR SIVARAMAN [4.48 PM]

PN1282

MR SIVARAMAN: Now, Mr Wilkins, it's the case, isn't it, that on a number of occasions you ‑ ‑ ‑?‑‑‑Mr Lee.

PN1283

Sorry. I withdraw that. Start again. It's late in the day. Mr Lee, it's the case, isn't it, on a number of occasions you've escorted Mr Wilkins when he's conducted right of entry on to the site, isn't it?‑‑‑Yes. That's correct.

PN1284

It's the case, isn't it, that you escorted Mr Wilkins on 19 May 2015, isn't it?‑‑‑Is it the 19th? I thought it was the – are we referring to the – was it the 10th?

PN1285

No, it was prior to 10 June. I put it to you that Mr Wilkins conducted a right of entry visit on 19 May 2015?‑‑‑I recall him going there before, yes. Whether it was the 19th I don't specifically recall.

*** DANIEL CARLTON LEE XXN MR SIVARAMAN

PN1286

On that day he conducted his meeting on a room allocated by UGL; is that correct?‑‑‑That would be the case.

PN1287

The room that was provided to him on that day was, or the area, I should say, that was supplied to him on that day was a breezeway within the western end facilities area, wasn't it?‑‑‑Yes.

PN1288

You were cross-examined by Mr Dowling about where you stand whilst these meetings take place, and your evidence, I think, was that you can't be within the meeting?‑‑‑That's correct.

PN1289

You're not able to do that. The one time that you were was on 12 June. So it would've been the case that on 19 May you wouldn't have been within the breezeway whilst a meeting took place in the breezeway between Mr Wilkins and AMWU members?‑‑‑I would have been. The breezeway is a very long breezeway. I understand there was inspections, and so the – from memory, I was at the entrance where you go up, so looking down the breezeway, yes, I could've seen a bit of it.

PN1290

You could've seen a bit of it?‑‑‑But I would've been out of earshot. I make a point of being essentially out of earshot.

PN1291

So if your evidence is that you could've seen a bit of it, you couldn't have seen all of it, could you?‑‑‑No.

PN1292

So you couldn't have seen all of the members that were in there?‑‑‑No.

PN1293

So you couldn't have seen how crowded it was in all of the breezeway, could you?‑‑‑I could've seen how crowded it was in the breezeway, and then you've got between the two - as I understand it the meeting took place between the cribs – yes, essentially there's an L-shaped or an offset – and the meeting took place between the cribs into the breezeway. We may be having discussions about what we call the breezeway but ‑ ‑ ‑

PN1294

No, I think we're in agreement that the breezeway is between the crib rooms. But what I'm seeking to clarify, Mr Lee, is you've already given evidence that you could've seen a bit of the breezeway?‑‑‑Yes.

PN1295

That's the word that you used?‑‑‑Yes.

*** DANIEL CARLTON LEE XXN MR SIVARAMAN

PN1296

So what I'm putting to you is that if you could only see a bit of the breezeway that would clearly reduce your ability to see just how many people were within the breezeway, wouldn't it?‑‑‑That's correct.

PN1297

Therefore you would have to accept that Mr Wilkins, who was actually within the area, and who could've seen all the members, would have the better idea of how many people were in there, than you, wouldn't he?‑‑‑Yes.

PN1298

Now, in your second statement, your statement in reply that is, you say that you told Mr Wilkins that there's no positive obligation for a contractor to build rooms for meetings; that's right isn't it?‑‑‑That's correct.

PN1299

That's what you said. But it is the case that the contractor and the union can come to an agreement on a room, can't they?‑‑‑They can come to an agreement, yes.

PN1300

That's right. And it is the case that in the past that there has been occasions where there's been an agreement for the AMWU to conduct the meetings at the eastern end stores area, isn't there?‑‑‑When the western end cribs weren't used by the mechanical workforce.

PN1301

Now, on 10 June, 2015, you were Mr Wilkins' escorter for the site for his right of entry meeting, weren't you?‑‑‑Yes. Yes.

PN1302

It's the case that you told Mr Wilkins that mechanical workers were at the western end crib facility, didn't you?‑‑‑Were cribbing at the western end.

PN1303

Well, cribbing at the western end?‑‑‑That's where they cribbed.

PN1304

But you didn't drive him to the western end crib facility area, did you?‑‑‑I drove him towards the western end crib facility.

PN1305

But you didn't drive him to it?‑‑‑No, I drove ‑ ‑ ‑

PN1306

Towards it is not the same as to it, is it?‑‑‑ ‑ ‑ ‑past it, but ultimately ‑ ‑ ‑

PN1307

No. And in fact you didn't drive him to any area where his members were, did you?‑‑‑That's correct.

*** DANIEL CARLTON LEE XXN MR SIVARAMAN

PN1308

And in fact you never let him exit the car, did you?‑‑‑That's correct.

PN1309

So it wouldn't have actually mattered where his members were, because you never actually let him exit the car, did you?‑‑‑Yes.

PN1310

But it's not actually you that determines where Mr Wilkins gets to meet his members, is it?‑‑‑No.

PN1311

It's UGL that makes that decision, isn't it?‑‑‑That's correct.

PN1312

But in any event you decided that he shouldn't exit the car, and he couldn't have seen members anywhere, as you've just said. And it's the case, isn't it, Mr Lee, that that – would you expect that that would've been somewhat antagonistic to Mr Wilkins and the union?‑‑‑I don't know about the union, this amorphous thing called the union.

PN1313

Well, then to Mr Wilkins?‑‑‑Mr Wilkins and I had a pretty civil conversation. He certainly didn't appear to be antagonised.

PN1314

Now, Mr Lee, you said that you drove towards the western end facilities with Mr Wilkins on 10 June?‑‑‑That's correct.

PN1315

But you knew, didn't you, by the time of the meeting that the AMWU members had gone to the eastern end stores area, didn't you?‑‑‑No, only what Mr Wilkins told me. We're talking about the 10th?

PN1316

Yes, we are?‑‑‑Yes. Yes.

PN1317

So based on what Mr Wilkins had told you did you know that the members had gone to the eastern end stores area?‑‑‑Mr Wilkins told me he wanted to go to the – to a joint meeting at the eastern end.

PN1318

On 12 June 2015 you were Mr Wilkin's escort, weren't you?‑‑‑Yes.

PN1319

And were you aware, by the time of his meeting, that his members – that his union's members, I should say, were at the eastern end stores area?‑‑‑When you say by the time – at the time of the meeting?

*** DANIEL CARLTON LEE XXN MR SIVARAMAN

PN1320

At about 2 pm?‑‑‑No.

PN1321

Excuse me, Commissioner, one moment. Thank you, Commissioner, no further questions.

PN1322

THE COMMISSIONER: All right. Thank you. Mr Murdoch?

RE-EXAMINATION BY MR MURDOCH [4.59 PM]

PN1323

MR MURDOCH: Yes. Thank you, Commissioner. Just going back to 12 June, you were asked some questions as to why it was – I'll withdraw that. You were asked some questions about the fact that you went into the meeting being conducted in the stores area. Do you recall being asked about that?‑‑‑That's correct.

PN1324

And you gave an answer to the effect that you were Mr Wilkins' escort. Can I ask you this: why did you go into the meeting as the escort?‑‑‑Because Mr Wilkins had walked off from the western end.

PN1325

Yes?‑‑‑He was not authorised to do that. In fact, he had been directed not to. I mean, on numerous occasions, both at the western end and also as we were walking along.

PN1326

Yes?‑‑‑He was directed to return to the other end, to the western end, and he refused to do so, and kept going. So we walked into the meeting with Mr Wilkins. Yes.

PN1327

Now, you were also asked a question to the effect of, whether you thought it was a good decision to go into the meeting as his escort, and your answer was yes. Why did you answer yes? Why did you regard it as being a good decision to go in?‑‑‑Because I didn't believe that the meeting – that he should be attending that meeting. It was not authorised, or his being there was unauthorised. He was not acting in accordance with site protocols and also his right of entry protocols, and so it was a case of making sure that it wasn't seen as condoning that occurring. And ultimately two minutes later he turned around and walked out.

PN1328

Now, you were also asked a question about what you observed whilst you were there, in respect of Mr Cummins talking. When you were there, from your observation, who was Mr Cummins talking to?‑‑‑The assembled workers there.

PN1329

That's the re-examination. Might the witness be excused?

*** DANIEL CARLTON LEE RXN MR MURDOCH

PN1330

THE COMMISSIONER: Yes, Mr Murdoch. You're free to go, Mr Lee. Thank you.

<THE WITNESS WITHDREW [5.01 PM]

PN1331

THE COMMISSIONER: All right. Well, that appears to conclude the witness evidence for the applicant's case.

PN1332

MR MURDOCH: Yes.

PN1333

THE COMMISSIONER: All right. All right. Are there any other matters we need to deal with this afternoon? Perhaps the batting order for tomorrow?

PN1334

MR DOWLING: No other matters other than that issue, Commissioner.

PN1335

THE COMMISSIONER: Yes.

PN1336

MR DOWLING: I've told my learned friend that Mr Cummins will be the first witness.

PN1337

THE COMMISSIONER: Yes.

PN1338

MR DOWLING: Mr Haire, the second, and Mr Wilkins, the third.

PN1339

THE COMMISSIONER: All right. Thanks, Mr Dowling. Anything else anyone wants to raise?

PN1340

MR MURDOCH: No thanks.

PN1341

THE COMMISSIONER: No. 10 am tomorrow morning. Thank you, we'll adjourn.

ADJOURNED UNTIL THURSDAY, 04 FEBRUARY 2016 [5.02 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN PATRICK CASEY, SWORN.................................................................... PN47

EXAMINATION-IN-CHIEF BY MR MURDOCH............................................ PN47

EXHIBIT #1 WITNESS STATEMENT OF JOHN PATRICK CASEY DATED 28/08/2015................................................................................................................................... PN94

CROSS-EXAMINATION BY MR DOWLING.................................................. PN95

CROSS-EXAMINATION BY MR SIVARAMAN........................................... PN191

THE WITNESS WITHDREW............................................................................ PN227

JACQUELINE LORRAINE GARLAND, AFFIRMED.................................. PN231

EXAMINATION-IN-CHIEF BY MR MURDOCH.......................................... PN231

EXHIBIT #2 WITNESS STATEMENT OF JACQUELINE GARLAND DATED 28/08/2015................................................................................................................................. PN251

EXHIBIT #3 WITNESS STATEMENT OF JACQUELINE GARLAND DATED 23/10/2015................................................................................................................................. PN251

CROSS-EXAMINATION BY MR DOWLING................................................ PN253

RE-EXAMINATION BY MR MURDOCH....................................................... PN503

THE WITNESS WITHDREW............................................................................ PN507

SIMON SPRATT, SWORN................................................................................. PN517

EXAMINATION-IN-CHIEF BY MR MURDOCH.......................................... PN517

EXHIBIT #4 WITNESS STATEMENT OF SIMON SPRATT DATED 28/08/2015 PN524

CROSS-EXAMINATION BY MR DOWLING................................................ PN526

THE WITNESS WITHDREW............................................................................ PN729

AMY EVELYN RICHARDS, SWORN............................................................. PN780

EXAMINATION-IN-CHIEF BY MR MURDOCH.......................................... PN780

EXHIBIT #5 WITNESS STATEMENT OF AMY EVELYN RICHARDS DATED 28/08/2015................................................................................................................................. PN801

EXHIBIT #6 WITNESS STATEMENT OF AMY EVELYN RICHARDS DATED 24/10/2015................................................................................................................................. PN801

EXHIBIT #7 SUPPLEMENTARY WITNESS STATEMENT OF AMY EVELYN RICHARDS DATED 17/12/2015................................................................................................ PN801

CROSS-EXAMINATION BY MR DOWLING................................................ PN803

CROSS-EXAMINATION BY MR SIVARAMAN......................................... PN1009

RE-EXAMINATION BY MR MURDOCH..................................................... PN1110

THE WITNESS WITHDREW.......................................................................... PN1115

DANIEL CARLTON LEE, SWORN............................................................... PN1150

EXAMINATION-IN-CHIEF BY MR MURDOCH........................................ PN1150

EXHIBIT #8 WITNESS STATEMENT OF DANIEL CARLTON LEE DATED 28/08/2015............................................................................................................................... PN1166

EXHIBIT #9 WITNESS STATEMENT OF DANIEL CARLTON LEE DATED 22/10/2015............................................................................................................................... PN1167

CROSS-EXAMINATION BY MR DOWLING.............................................. PN1169

CROSS-EXAMINATION BY MR SIVARAMAN......................................... PN1281

RE-EXAMINATION BY MR MURDOCH..................................................... PN1322

THE WITNESS WITHDREW.......................................................................... PN1330

Fair Work Commission Transcripts

RE2015/875, Transcript of Proceedings [2016] FWCTrans 43 (7 March 2016)