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VOLUME 2
PART 8
CFMEU CASE STUDIES 1007 - 1566
8.1 INTRODUCTION
1007 - 1010
8.2 BORAL 1011 - 1115
A Overview and Summary 1014 - 1017
B Summary of Evidence 1017 - 1057
C Findings on Evidence 1057 - 1077
D Legal Issues 1078 - 1106
E Recommendations for Reform 1106 - 1115
8.3 CBUS LEAK TO THE CFMEU 1117 - 1242
A Overview 1119 - 1123
B Relevant Facts 1123 - 1209
C Conclusions 1209 - 1232
D Returning the Zanatta Spreadsheets 1232 - 1233
Annexure A: Examples of False Evidence Given by Ms
Butera
1234 - 1237
Annexure B: Examples of False Evidence Given by Ms
Zanatta
1238 - 1242
i
8.4 THE CONVERSATION OF 27 MARCH 2013 1243 - 1309
A Overview 1245 - 1246
B Relevant Facts 1246 - 1304
C Legal and Other Issues 1304 - 1309
8.5 CFMEU NSW DEALINGS WITH ALEX COMPANIES 1311 - 1327
A Introduction 1312
B Mr Barrios 1312 - 1327
8.6 CFMEU NSW BRANCH DESTRUCTION OF DOCUMENTS 1329 - 1395
A Introduction 1331 - 1333
B Deletion of Emails in June 2014 1333 - 1354
C The Instruction Given to Mr Holmes in
February 2013
1355 - 1395
8.7 UNIVERSAL CRANES 1397 - 1486
A Summary 1399 - 1400
B Relevant Facts 1400 - 1465
C Conclusions 1466 - 1486
8.8 HINDMARSH 1487 - 1492
A Overview 1487 - 1488
B Federal Circuit Court Proceedings: CFMEU
Submissions
1488
C Federal Circuit Court Proceedings: Counsel
Assisting’s Submissions
1488 - 1491
D Conclusion 1491 - 1492
ii
8.9 CFMEU TREATMENT OF FAIR WORK BUILDING INSPECTORS 1493 - 1525
A Summary 1527 - 1562
B Relevant Facts 1495 - 1511
C Conclusions 1511 - 1525
8.10 THE PENTRIDGE VILLAGE SITE 1527 - 1562
A Summary 1528
B Natural Justice 1529 - 1532
C Outline of Findings 1532 - 1533
D Relevant Facts 1533 - 1559
E Conclusions 1559 - 1562
8.11 ANDREW ZAF 1563
8.12 LIS-CON’S QUEENSLAND LOCKOUT 1565 - 1566
PART 9
HEALTH SERVICES UNION 1567 - 1613
9 RIGHT OF ENTRY PERMITS
1567 - 1613
A Introduction 1569 - 1570
B Right of Entry Testing 1570 - 1571
C Critical Factual Disputes 1571 - 1606
D Consequences of Factual Findings 1606 - 1612
E A Preliminary Point 1612 - 1613
PART 10 TRANSPORT WORKERS’ UNION OF AUSTRALIA 1615 - 1657
iii
10.1 INTRODUCTION 1615 - 1623
A Preliminary 1615 - 1617
B Background to the TWU 1617 - 1623
10.2 MEMBERSHIP ROLL OF THE TWU OF NSW
1625 - 1657
A Introduction 1625 - 1626
B Preliminary Point: The Terms of Reference 1626 - 1627
C Maintenance of Membership Roll 1627 - 1635
D Declaration of Member Numbers to ALP 1635 - 1657
PART 11 THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL,
PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
1659 - 1669
11 CEPU INTRODUCTION
1659 - 1669
A Preliminary 1659 - 1660
B Background to the CEPU 1660 - 1669
PART 12 SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
1671 - 1712
12 MISCELLANOUS PROBLEMS FOR SDA QUEENSLAND
1672 - 1712
A Introduction 1672 - 1673
B Relevant Facts 1673 - 1695
C Legal Issues 1696 - 1712
iv
APPENDICES 1713 - 1813
1 Letters Patent issued on 13 March 2014 by the Governor-General
1714 - 1718
2 Letters Patent issued on 30 October 2014 by the Governor-
General
1719 - 1720
3 Letters Patent issued on 24 March 2014 by the Governor of
Queensland
1721 - 1724
4 Letters Patent issued on 9 April 2014 by the Governor of
New South Wales
1725 - 1729
5 Letters Patent issued on 15 April 2014 by the Governor of
Victoria
1730 - 1735
6 Letters Patent issued on 13 May 2014 by the Governor of
Tasmania
1736 - 1740
7 Letters Patent issued on 22 May 2014 by the Governor of
South Australia
1741 - 1746
8 Letters Patent issued on 8 July 2014 by the Administrator of
Western Australia
1747 - 1750
9 Practice Direction 1 1751 - 1769
10 Practice Direction 2 1770 - 1773
11 Practice Direction 3 1774
12 List of witnesses and counsel 1775 - 1800
13 Stakeholder Engagement 1801 - 1802
14 Extracts from the Royal Commissions Act 1902 (Cth) 1803 - 1806
15 Extracts from the Corporations Act 2001 (Cth) 1807 - 1811
16 Extracts from the Fair Work Act 2009 (Cth) 1812 - 1813
v
17 Extracts from the Fair Work (Registered Organisations) Act 2009 (Cth) 1814 - 1817
vi
INTERIM
REPORT Volume 2
Royal Commission into Trade Union Governance and Corruption
vii
viii
PART 8: CFMEU CASE STUDIES
CHAPTER 8.1
INTRODUCTION
1. This Part analyses various case studies relating to the
Construction and General Division of the CFMEU.
2. The Interim Report has already dealt with two ‘relevant entities’
related to the CFMEU and its officers. One concerned Building
Industry 2000 Plus Limited and officers of the Victorian
Divisional Branch (see Chapter 3.4). The second concerned
BERT, BEWT, CIPL and QCTF and officers of the Queensland
and Northern Territory Divisional Branch (see Chapter 5.2).
3. The case studies concerning the CFMEU in this Part are directed
to a consideration of one or more of the following matters:
(a) whether officers of the CFMEU have engaged in
conduct which may amount to a breach of any law,
regulation or professional standard in order to procure
an advantage for the officer or another person or
detriment to a person or organisation;
1007
(b) whether there has been any bribe, secret commission or
other unlawful payment or benefit arising from
contracts, arrangements or understandings between an
employee association, or an officer of an employee
association, and any other party;
(c) which persons or organisations have participated in that
conduct; and
(d) matters reasonably incidental to that conduct.
4. The evidence in relation to the CFMEU case studies indicates
that a number of CFMEU officials seek to conduct their affairs
with a deliberate disregard for the rule of law.
5. That evidence is suggestive of the existence of a pervasive and
unhealthy culture within the CFMEU, under which:
(a) the law is to be deliberately evaded, or crashed through
as an irrelevance, where it stands in the way of
achieving the objectives of particular officials;
(b) officials prefer to lie rather than reveal the truth and
betray the union;
(c) the reputations of those who speak out about union
wrongdoing become the subject of baseless slurs and
vilification.
1008
6. The conduct undertaken by officers of the CFMEU has included:
(a) conduct which may constitute the criminal offences of
blackmail and extortion by officers of the CFMEU in
Victoria and Queensland;
(b) behaviour by officers of the CFMEU in Victoria and
Queensland which may give rise to contraventions of
the boycott, cartel and other provisions of the
Competition and Consumer Act 2010 (Cth);
(c) covert action undertaken by the New South Wales State
Secretary of the CFMEU to convince senior employees
of Cbus secretly to hand over to the CFMEU the private
information of Cbus members and the subsequent
misuse of that information by the State Secretary;
(d) the making of a death threat by one CFMEU
Construction and General New South Wales Divisional
organiser to a fellow organiser (Mr Brian Fitzpatrick),
the failure on the part of senior officials to undertake
any proper and considered investigation into the
incident, and the subsequent victimisation of the
complainant by those same officials;
(e) organising and engaging in industrial action in
deliberate defiance of orders made by the Fair Work
Commission and the Federal Circuit Court of Australia;
and
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(f) obstructing Fair Work Building inspectors in the
performance of their statutory duties through
intimidation, insults and generally threatening
behaviour.
7. The reasons why the conclusions concerning possible breaches of
the law have been expressed in the language of possibility is
explained in Chapter 1 of the Interim Report. In appropriate
cases, the Interim Report contains a recommendation that the
Interim Report be referred to the appropriate authority for
consideration of whether the CFMEU or relevant officials should
be prosecuted. A list of such recommendations is found in
Chapter 1 of the Interim Report.
1010
CHAPTER 8.2
BORAL
Subject Paragraph
A - OVERVIEW AND SUMMARY 1
B - SUMMARY OF EVIDENCE 6
Background 9
Boral learns of the CFMEU’s intention to implement black ban: the 2012 phone call 13
The events of 14 February 2013 15
The events of 15 February 2013 21
CFMEU ban in operation from 18 February 2013: general 25
CFMEU ban in operation from 18 February 2013: Oceania 29
CFMEU ban in operation from 18 February 2013: Cardinia Shire Offices 30
CFMEU ban in operation from 18 February 2013: Ferntree Gully Road 31
CFMEU ban in operation from 18 February 2013: Tarneit Shopping Centre 32
CFMEU ban in operation from 18 February 2013: Church 33
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Subject Paragraph
Street, Richmond
CFMEU ban in operation from 18 February 2013: Equiset 34
CFMEU ban in operation from 18 February 2013: Drive Projects 40
CFMEU ban in operation from 18 February 2013: Anglo Italian Concrete 45
CFMEU ban in operation from 18 February 2013: Kosta Concreting 52
CFMEU ban in operation from 18 February 2013: Squadron Concrete 57
CFMEU ban in operation from 18 February 2013: S & A Paving 59
The events of late March 2013: CFMEU’s ban expands beyond Boral Concrete 60
26 February-5 April 2013: Boral commences legal proceedings 65
Boral’s meeting with the CFMEU on 23 April 2013 72
Further steps taken by Boral in response to the ban: Supreme Court Proceeding 91
Further steps taken by Boral in response to the ban: involvement of regulators 98
Continuation of the CFMEU ban 102
Continuation of the CFMEU ban: Oceania - Williams Landing 103
Continuation of the CFMEU ban: BRC Piling - Olympic 108
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Subject Paragraph
Park
Continuation of the CFMEU ban: BRC Piling - Werribee Plaza 110
Continuation of the CFMEU ban: Town & Country - Werribee Plaza 117
Effect of the ban on Boral 121
C - FINDINGS ON EVIDENCE 128
Relevance of evidence being uncontradicted and procedural issues 128
The ACCC Federal Court Proceeding 153
Evidence of the Boral customer witnesses considered in its own right 159
Evidence of the Boral witnesses considered in its own right 160
The effect of the default judgment 163
D - LEGAL ISSUES 168
Secondary boycott provisions: Competition and Consumer Act 2010 (Cth), section 45D 169
Arrangements affecting the supply or acquisition of goods: Competition and Consumer Act 2010 (Cth), section 45E 191
Cartel provisions of Competition and Consumer Act 2010 (Cth) 206
Blackmail: Crimes Act 1958 (Vic), section 87 227
Possible contempts of court 242
1013
Subject Paragraph
E - RECOMMENDATIONS FOR REFORM 245
A - OVERVIEW AND SUMMARY
1. This chapter of the Interim Report deals with Boral Limited and its
related bodies corporate (together, Boral). To an unusually large
extent, there was no significant attack on the factual submissions made
by counsel assisting. That is because the CFMEU’s main point was
that no finding should be made until certain litigation was completed.
What follows is based on the submissions of counsel assisting. The
particular submissions of the CFMEU have been discussed at
appropriate places.
2. Boral supplies concrete and other products to persons within the
construction industry throughout Australia and overseas. Boral
Limited has four operating divisions: Boral Construction Materials and
Cement, Boral Building Products, Boral Gypsum and Boral USA. It is
a public company listed on the Australian Stock Exchange. In 2014
Boral’s profit after tax was $171 million1 and it had earnings before
interest and tax of $294 million.2
3. In Victoria, Boral operates a number of businesses through subsidiaries
including:
1 Boral MFI-2, Tab 1 (Boral Limited Annual Report to June 2014), p 4. This figure excludes significant items. 2
Boral MFI-2, Tab 1 (Boral Limited Annual Report to June 2014), p 4.
1014
(a) Boral Resources (Vic) Pty Ltd, trading as Boral Concrete
(Boral Concrete), which manufactures and supplies concrete
for use in construction;
(b) Alsafe Premix Concrete Pty Ltd, trading as Alsafe Pre-Mix
Concrete (Alsafe), which manufactures and supplies concrete
for use in construction;
(c) Boral Bricks Pty Ltd, trading as Boral Bricks, which
manufactures and supplies bricks for use in construction;
(d) Boral Masonry Ltd, trading as Boral Masonry, which
manufactures and supplies masonry for use in construction;
(e) Boral Australian Gypsum Ltd, trading as Boral Plasterboard,
which manufactures and supplies plasterboard products for
use in construction; and
(f) Boral Window Systems Ltd, trading as Boral Window
Systems, which manufactures and supplies window products
for use in construction.
4. The balance of this chapter is divided into four sections. Section B sets
out a summary of the relevant evidence before the Commission.
Section C contains the findings to be made in respect of that evidence.
Section D deals with the legal issues thrown up by the evidence.
Section E notes possible areas for reform.
1015
5. In summary:
(a) Since February 2013, the Victorian Branch of the
Construction and General Division of the Construction,
Forestry, Mining and Energy Union (the CFMEU) has black
banned Boral from CFMEU-controlled construction sites in
greater metropolitan Melbourne, as part of an ongoing ‘war’
between the CFMEU and Grocon Pty Ltd and its related
companies (Grocon).
(b) The CFMEU black ban has continued notwithstanding
injunctions obtained by Boral from the Supreme Court of
Victoria in February, March and April 2013 restraining the
CFMEU from carrying on the ban.
(c) By engaging in the ban, the CFMEU may have contravened
ss 45D and 45E of the Competition and Consumer Act 2010
(Cth) and ss 44ZZRF and 44ZZRJ of the Competition Policy
Reform (Victoria) Act 1995 (Vic).
(d) On 23 April 2013, Mr John Setka, State Secretary of the
CFMEU, and Mr Shaun Reardon, Assistant State Secretary of
the CFMEU attended a meeting with Mr Paul Dalton and Mr
Peter Head, officers of the Boral Group. During that meeting
Mr Setka demanded that Boral cease supplying concrete to
Grocon and threatened that if Boral did not stop supplying
concrete to Grocon the CFMEU would continue to escalate its
black ban, and ensure that Boral’s overall market share was
diminished.
1016
(e) By making that demand, Mr Setka may have committed the
criminal offence of blackmail contrary to s 87 of the Crimes
Act 1958 (Vic). Mr Reardon also may have committed the
offence of blackmail or may have aided and abetted Mr Setka
and may be liable as an accessory pursuant to s 323 of the
Crimes Act 1958 (Vic).
B - SUMMARY OF EVIDENCE
6. This section provides a summary of the evidence before the
Commission. That evidence principally consists of:
(a) The oral evidence given, and written statements provided, by
officers of Boral (the Boral witnesses), and
(b) Written statements provided by ten employees/officers of
various of Boral’s customers (the Boral customer witnesses).
7. Despite being provided with every opportunity to do so, the CFMEU
chose not to cross-examine any of the Boral witnesses or the Boral
customer witnesses and not to provide evidence to contradict the
evidence of those witnesses.
8. The CFMEU’s decision not to contradict or challenge the evidence
before the Commission could have an impact upon the factual findings
to be made.3
3 Paragraphs 128ff.
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Background
9. Boral is the exclusive supplier of wet concrete to Grocon.4 Grocon is a
privately owned corporate group which operates a large development,
construction and funds management business throughout Australia.
10. As at early 2013, the CFMEU had been engaged in a bitter and long-running industrial dispute with Grocon.5 From Grocon’s perspective,
the dispute appears to centre on Grocon’s refusal to employ CFMEU
union delegates (otherwise known as shop stewards) on its sites, and
its decision to employ representatives chosen by Grocon management
instead.6 From the CFMEU’s perspective, the dispute would appear to
centre on its contention that Grocon will not recognise the right of the
CFMEU to represent workers on industrial and safety matters.7
11. That dispute has given rise to separate proceedings in the Victorian
Supreme Court and the Federal Court:
(a) In late August and early September 2012, Grocon alleged that
misconduct by the CFMEU and some of its leaders took place
at several Grocon building sites in Victoria, including the
Myer Emporium site in Melbourne and the McNab Avenue
4 Linda Maney, witness statement, 9/7/14, para 6. 5 Paul Dalton, witness statement, 9/7/14, para 2; Linda Maney, witness statement, 9/7/14, para 6; Grocon Constructors (Victoria) Pty Ltd v CFMEU [2013] VSC 275 at [100] per Cavanough J. 6
See the findings in Grocon Constructors (Victoria) Pty Ltd v CFMEU [2013] VSC 275 at [100] per Cavanough J. 7 See the findings at Grocon Constructors (Victoria) Pty Ltd v CFMEU [2013] VSC 275 at [100] per Cavanough J.
1018
site in Footscray.8 On 17 August 2012, Grocon sought and
was granted temporary injunctive relief in the Victorian
Supreme Court against the CFMEU in relation to what was
said to be an obstructive picket at the McNab Avenue site.
That order was subsequently confirmed on 21 August 2012
and later extended on 22 August 2012 to prevent picketing of
the Myer Emporium site.
(b) Subsequently Grocon filed in the Supreme Court Proceeding
a number of summonses seeking orders that the CFMEU be
punished for contempt. Grocon ultimately brought 30
charges of contempt against the CFMEU centring on
allegations that the CFMEU disobeyed the Court’s orders by
picketing the Myer Emporium and McNab Avenue sites or
procuring others to do so. On 24 May 2013, Cavanough J
upheld each of the charges and made five findings of
contempt.9 In August 2013, his Honour made two further
findings of contempt. On 31 March 2014, his Honour
imposed penalties of $1.15 million against the CFMEU.10
The CFMEU appealed against his Honour’s orders and an
appeal was heard by the Victorian Court of Appeal on 25 and
28 July 2014. On 24 October 2014, the CFMEU’s appeal was
dismissed.11
8 See the summary recorded in Grocon Constructors (Victoria) Pty Ltd v CFMEU [2013] VSC 275 at [15] ff. 9
Grocon Constructors (Victoria) Pty Ltd v CFMEU [2013] VSC 275. 10 Grocon Constructors (Victoria) Pty Ltd v CFMEU (No 2) [2014] VSC 134. 11
CFMEU v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261.
1019
(c) On 5 August 2012, following an investigation by Fair Work
Building and Construction, the Director of Fair Work
Building Industry Inspectorate commenced a proceeding in
the Federal Court arising out of the CFMEU’s conduct in
relation to the picketing of the Myer Emporium and McNab
Avenue sites. After a number of interlocutory applications,12
that proceeding was heard by Tracey J in August 2014 and on
8 October 2014. Judgment is reserved.
12. The relevance of Boral to the dispute between Grocon and the CFMEU
was explained in evidence in this way:
Grocon is a very large customer of Boral’s. We supply Grocon’s concrete exclusively and have done for some time. The CFMEU and Grocon were having a battle over control of Grocon’s sites. Concrete is a critical path item for Grocon’s builds and their business. It is a large component both structurally and dollar wise for their buildings. If the CFMEU was able to stop Grocon getting concrete from Boral this would have a significant impact on Grocon’s business.
The reason this would be so damaging to Grocon is that a lot of the work we [i.e. Boral] do for Grocon is high strength concrete, which is very challenging. Not all suppliers can supply concrete at such a high level of technical specification. If Boral stopped supplying to Grocon, that would mean that Grocon would not be able to operate without a lot of difficulty.13
Boral learns of the CFMEU’s intention to implement black ban: the 2012
phone call
13. In late 2012 Mr Paul Dalton, the Executive General Manager (Southern
Region) for Boral Construction Materials & Cement, received a
12 See CFMEU v Director of Fair Work Building Inspectorate [2014] FCAFC 101. 13 Linda Maney, witness statement, 9/7/14, paras 6-7.
1020
telephone call from Mr John Setka, State Secretary of the CFMEU. Mr
Dalton’s evidence was that Mr Setka said words to the effect: ‘This is
just a heads up that Boral’s going to run into some trouble with this
Grocon stuff. It’s nothing personal’.14
14. Mr Dalton understood this to mean the high-profile dispute between
Grocon and the CFMEU arising out of the Myer Emporium job in the
Melbourne CBD.15
The events of 14 February 2013
15. Mr Richard Lane, Senior Account Manager for Boral Concrete gave
the following evidence:
(a) On 14 February 2013 he received two phone calls from Boral
customers advising that Boral Concrete had been black
banned because of issues relating to Grocon.16 These phone
calls were from Mr Glen Kirkwood, manager at Drive
Projects Pty Ltd (Drive Projects), and Mr Brett Young,
General Manager at Anglo Italian Concrete (Anglo Italian).
The occurrence of the latter call was corroborated by Mr
Young.17
(b) Later the same day, Mr Lane had a conversation with Mr
Mark Milano, Sales Manager of Oceania Universal Paving
14 Paul Dalton, witness statement, 9/7/14, para 3; Paul Dalton, 9/7/14, T:9.13-16. 15 Paul Dalton, witness statement, 9/7/14, para 4. 16
Richard Lane, witness statement, 9/7/14, paras 4-10. 17 Brett Young, witness statement, 18/9/14, para 8.
1021
Pty Ltd (Oceania). Mr Milano advised that Boral had been
banned from a building project on the Cardinia Shire Offices
at Officer.18 That conversation was corroborated by Mr
Milano.19
(c) At 4 pm on the same day, Mr Lane had a conversation with
Mr Wally Gorlin, the CFMEU shop steward at Meridian
Construction Services Pty Ltd (Meridian). Mr Gorlin
informed Mr Lane that the CFMEU had decided to ban Boral
‘from all union controlled sites due to Boral’s reluctance to
support the union at the Grocon pour’.20
16. The evidence of Mr Dalton was that on 14 February 2013 Ms Linda
Maney, General Manager Sales (Southern Region) for Boral
Construction Materials and Cement advised him that a number of
Boral sales employees had been told that the CFMEU had
implemented a black ban on Boral supplying concrete to Melbourne
construction sites.21
17. Mr Peter Head, General Manager, Boral Concrete Southern Region,
gave evidence that a ‘black ban’ meant that Boral would not be
permitted to supply concrete to any project where there was a CFMEU
presence. This would be achieved either by stopping a truck carrying
Boral concrete at the gate to the site, or if a truck had already gained
18 Richard Lane, witness statement, 9/7/14, paras 11-14 19 Mark Milano, witness statement, 18/9/14, paras 6-7. 20
Richard Lane, witness statement, 9/7/14, para 21. 21 Paul Dalton, witness statement, 9/7/14, para 5.
1022
entry to the site, by the CFMEU shop steward directing employees not
to unload the concrete.22
18. An email from Ms Sheri Tarr, Regional HR Manager for Boral
Construction Materials copied to Mr Dalton on 14 February 2013
stated:
CFMEU had a meeting today of members (shop stewards) and organisers, they were told that as of Monday Boral will be turned away from all CFMEU sites due to Boral providing concrete to Grocon for a Sunday pour on 10/2/13. … This information came from Meridian Concrete.23
19. The email also listed a number of Boral’s customers who had been
advised by the CFMEU of its intended action, including Drive
Projects, Meridian, Anglo Italian, Equiset and Oceania.
20. A customer questionnaire completed by Mr Biondo records that Mr
Steve Richardson and Mr Bepi Murer at Equiset told him that the shop
steward at ‘Lyonsville [scil Lionsville] - Pascoe Vale Road’ told him
that the CFMEU had instructed ‘all their steward[s] to ban deliveries
by Boral concrete and anyone affiliated tp [scil to] them including
Alsafe’.24
The events of 15 February 2013
21. On 15 February 2013 Mr Head received a telephone call at 10 am from
Mr John Matthews, Production Manager of Boral Concrete in the
Melbourne CBD. Mr Matthews told Mr Head that Boral was being
22 Peter Head, witness statement, 9/7/14, para 3. 23 Paul Dalton, witness statement, 9/7/14, p 25. 24
Paul Dalton, witness statement, 9/7/14, p 27.
1023
banned from all construction sites because it was supplying concrete to
Grocon.25
22. Mr Head immediately telephoned Mr Frank Tringali, one of the
members of Boral’s lorry owner drivers’ committee, to find out if he
had heard about the issue. Lorry owner drivers are individual drivers
contracted by Boral to deliver concrete in trucks that are not owned by
Boral.26 During the call, Mr Tringali told Mr Head that his drivers
were telling him that the CFMEU had banned Boral concrete deliveries
from Monday (18 February 2013).27
23. Shortly thereafter at 11.30 am Mr Head received a telephone call from
Mr Murray Billings, a fleet owner of approximately six agitator trucks,
who contracts with Boral Concrete to provide transport services. Mr
Billings said words to the effect:
I have been told that we cannot deliver to the Oceania job in Officer, the Drive job at Swinburne Uni in Hawthorn, the Meridian job at Cragieburn shopping centre, or any of the Equiset jobs in the CBD. I can’t understand what this has to do with us and it’s not going to impact Grocon because they are going to get their concrete.28
24. Later that afternoon Mr Head spoke to Mr Ashley Martin, a lorry
owner driver who contracts with Boral Concrete, in Errol Street, North
Melbourne.29 Mr Head’s evidence was that Mr Martin asked him what
was going on with the CFMEU ban on Boral concrete deliveries. Mr
Martin stated, ‘I spoke to the guys at Drive Projects today and they told
25 Peter Head, witness statement, 9/7/14, para 4. 26 Peter Head, witness statement, 9/7/14, para 5. 27
Peter Head, witness statement, 9/7/14, para 6. 28 Peter Head, witness statement, 9/7/14, para 7. 29
Peter Head, witness statement, 9/7/14, para 8.
1024
me not to come back to site next week as no Boral trucks will be
allowed on.’30
CFMEU ban in operation from 18 February 2013: general
25. Mr Head gave evidence that on and from 18 February 2013 the
following long-term customers of Boral ceased ordering concrete for
ongoing major projects in the greater Melbourne metropolitan area:
(a) Oceania;
(b) Equiset Services Pty Ltd (Equiset);
(c) Drive Projects; and
(d) Meridian Construction Services Pty Ltd (Meridian).31
26. Mr Head’s evidence was that in his experience with Boral he was
unaware of any previous occasion where a customer had ceased
ordering concrete from Boral mid-project and had switched to another
supplier.32
27. An email from Mr John Biondo, Business Manager at Alsafe to Mr
Dalton on 18 February 2013 stated that Alsafe had lost approximately
50m3 in concrete orders over the next four days due to the ban.33 The
email also refers to Meridian receiving concrete from Pronto at
30 Peter Head, witness statement, 9/7/14, para 8. 31 Peter Head, witness statement, 9/7/14, para 9. See also Peter Head, 9/7/14, T:31.5-38. 32
Peter Head, witness statement, 9/7/14, para 9. See also Peter head, 9/7/14, T:31.40ff. 33 Paul Dalton, witness statement, 9/7/14, p 19.
1025
‘Craigieburn SC’ in excess of 100m3. Mr Dalton’s evidence was that
Pronto was a competitor of Boral’s and that the reference to
Craigieburn was a shopping centre at which, until that point, Boral had
been supplying concrete to Meridian. The project was already
underway at the time.34 By 21 February 2013, it was estimated that
Boral had lost 500m3 of concrete at the Craigieburn site.35
28. The existence of the CFMEU ban against Boral at this time was also
supported by the evidence of the Boral customer witnesses.
CFMEU ban in operation from 18 February 2014: Oceania
29. Prior to 2013 Boral was Oceania’s preferred concrete supplier and,
with the exception of a small family concreting project, Oceania used
Boral exclusively for its concrete in 2012.36 In 2012 Mr Mark Milano,
Sales Manager and Director of Oceania, began to review Oceania’s
concrete supply arrangements as he no longer wanted to have an
exclusive concrete supplier.
CFMEU ban in operation from 18 February 2013: Cardinia Shire Offices37
30. Mr Milano’s evidence was that in September and October 2012
Oceania started work on the Cardinia Shire Offices at Officer. That
project required environmental concrete and Boral was engaged to
supply its ‘greenstar’ concrete. In mid-February 2013, Mr Milano was
34 Paul Dalton, 9/7/14, T:10.41-11.27. 35 Paul Dalton, witness statement, 9/7/14, p 30 (email from Keith Hunt to Peter Head dated 21 February 2013). 36
Mark Milano, witness statement, 18/9/14, para 3. See also Peter Head, 9/7/14, T31.8-15. 37 Mark Milano, witness statement, 18/9/14, paras 5-9.
1026
contacted by Mr Linus Humphrey, the site supervisor, who told Mr
Milano that he had been advised by the ‘health and safety
representative that we cannot use Boral on site, we have to use
someone else’. Mr Milano called Mr Lane to ask what the issue was.
Mr Milano then spoke with the construction manager from Watpac to
discuss the difficulty which would arise if he could not use Boral. The
next day, the Watpac construction manager advised that ‘you can use
Boral for the vertical slabs and I am seeking dispensation to use Boral
for the suspended slabs’. A few days later, the construction manager
from Watpac advised that Oceania could still use Boral on the project
as there was no other supplier of ‘greenstar’ concrete in the region.
CFMEU ban in operation from 18 February 2013: Ferntree Gully Road38
31. In February 2013 Oceania was engaged on an office building on
Ferntree Gully Road in Nottinghill. The job was almost complete, but
a final pour was scheduled for a Saturday to complete some stairs. The
afternoon before the pour was scheduled, Mr Milano received a call
from Mr Humphrey, the supervisor of the site. Mr Humphrey said that
the builder, Hansen Yuncken, had said to him, ‘I have been told by the
union that there are issues using Boral on the site.’ Mr Milano
understood the union to be the CFMEU. Mr Milano telephoned Mr
Lane who suggested the solution of supplying concrete through Alsafe.
Mr Milano then rang the builder, Hansen Yuncken, to ask whether he
could use Alsafe. The builder advised him that it should be okay to use
Alsafe. Alsafe then supplied the concrete for the stairs the following
day.
38 Mark Milano, witness statement, 18/9/14, paras 11-13.
1027
CFMEU ban in operation from 18 February 2013: Tarneit Shopping
Centre39
32. Oceania started work on the Tarneit Shopping Centre in March 2013.
It had engaged Boral as the concrete supplier on the project. Around
late March or early April 2013, Mr Damien Milano - Mr Mark
Milano’s brother - called him from the site and said: ‘The issue is
spreading further, the organiser from the CFMEU has told me that we
cannot use Boral on the site.’ After this incident, Mr Milano decided
to change Oceania’s concrete supplier. He engaged Holcim
(Australia), one of Boral’s competitors, as he thought continuing with
Boral may cause delays and, as a result, have an impact on project
productivity.
CFMEU ban in operation from 18 February 2013: Church Street,
Richmond40
33. In about March 2013 Oceania started work on a project in Church
Street, Richmond. Mr Humphrey advised Mr Milano that the same
rumours relating to using Boral applied to this site. To begin with, Mr
Milano engaged Boral to supply concrete through either Hanson,
another of Boral’s competitors, or Holcim (Australia). However, this
became too onerous for Oceania. As Mr Milano did not want delays to
the project to be caused by using Boral, he changed to Holcim
(Australia) for the supply of concrete for the rest of this Project.
39 Mark Milano, witness statement, 18/9/14, paras 14-16. 40 Mark Milano, witness statement, 18/9/14, paras 20-22.
1028
CFMEU ban in operation from 18 February 2013: Equiset
34. Equiset was made up of people who had been long-term customers of
Boral.41
35. Mr Steven Richardson, formerly of Equiset, gave evidence in relation
to the origin of the black ban as follows:
In February 2013, there was a buzz in the construction industry and on site in relation to a threatened ban by the CFMEU of Boral on construction sites in Melbourne. The feedback coming from sites was that there had been a meeting that the CFMEU shop stewards had attended at which the CFMEU organisers had discussed Boral.42
36. At this time Equiset was engaged as the head contractor on six projects
in Melbourne. Alsafe was supplying concrete to three of these
projects: 82 Flinders Street, 27 Little Collins Street and Lionsville
Retirement Village in Essendon.
37. Mr Richardson first heard of the CFMEU’s intention to impose a ban
on Boral Concrete when he received a call on 15 February 2013 from
one of Equiset’s site managers. He was advised that the CFMEU shop
steward employed by Equiset had said words to the effect of ‘the
CFMEU would not allow Boral on site.’ Mr Richardson was also
advised that the ban would extend to Alsafe.43
38. Mr Richardson decided to delay a pour at 27 Little Collins Street until
more information could be obtained regarding the CFMEU ban. On
41 Peter Head, 9/7/14, T:31.24-26. 42 Steven Richardson, witness statement, 18/9/14, para 3. 43
Steven Richardson, witness statement, 18/9/14, para 6.
1029
Tuesday 19 February 2012 Mr Richardson had a phone conversation
with Mr Elias Spernovasilis, a CFMEU organiser. Mr Spernovasilis
neither confirmed nor denied the rumours that the CFMEU did not
want Boral or Alsafe on Equiset sites. When Mr Richardson stressed
that he was using Alsafe on the projects, and that the concrete mix was
critical to the projects, Mr Spernovasilis said words to the effect of:
‘you will be right.’44
39. The next day, Mr Richardson attended a concrete pour at the 82
Flinders Street project. The CFMEU shop steward said to him, ‘Alsafe
are not allowed by the CFMEU on site.’ Mr Richardson responded
that he was going to go ahead with the pour.45 Equiset continued to
use Alsafe on the projects. Both projects at 27 Little Collins and
82 Flinders Street required the concrete mixes to be of a consistent
colour and strength over the 12 month period.
CFMEU ban in operation from 18 February 2013: Drive Projects
40. Drive Projects was a long-term established customer of Boral, and was
placing regular orders for concrete up until 15 February 2013.46
41. Mr Anthony Simpson, Managing Director of Drive Projects, gave
evidence that in about July 2012 Drive Projects commenced work on a
construction project at Swinburne University in Hawthorn. Boral was
44 Steven Richardson, witness statement, 18/9/14, para 10. 45 Steven Richardson, witness statement, 18/9/14, para 12. 46
Peter Head, witness statement, 9/7/14, para 9.
1030
engaged to supply concrete for the project. The project involved
approximately $1.4 million worth of concrete.47
42. In around February 2013 Mr Glen Kirkwood (a project manager with
Drive Projects) stated to Mr Simpson that ‘there are problems with
Boral and the CFMEU.’48 Similar evidence was provided by Mr
Steven Richardson, who at the time was acting as a consultant to Drive
Projects in relation to the Swinburne University site. Mr Richardson’s
evidence was that he had attended a meeting with Mr Simpson and
Mr Kirkwood in relation to using Boral at the site, and at this meeting
Mr Kirkwood said that he had been told by Mr Phil Filado, the
CFMEU shop steward, ‘Don’t use Boral on site’.49
43. Mr Simpson’s evidence was that: ‘The project had been handed over
late to Drive Projects and the project could not afford any additional
delays due to the Boral issue.’50 Further, he stated:
We then switched to Alsafe concrete in the period immediately after we found out that there was an issue with Boral. However, the message that we received from site was that the issues in relation to Boral would not be resolved in the short term and that Alsafe was not a viable alternative to avoid the issues.51
44. Mr Simpson was informed by site personnel that ‘the CFMEU would
make life difficult for us on the Project if we used Boral’. For these
reasons Drive Projects decided not to take the risk of using Boral and
47 Anthony Simpson, witness statement, 18/9/14, para 4. 48 Anthony Simpson, witness statement, 18/9/14, para 5. 49
Steven Richardson, witness statement, 18/9/14, paras 13-15. 50 Anthony Simpson, witness statement, 18/9/14, para 7. 51
Anthony Simpson, witness statement, 18/9/14, para 8.
1031
looked for an alternate concrete supplier and/or solution.’52 This
evidence was corroborated by Mr Richardson.53
CFMEU ban in operation from 18 February 2013: Anglo Italian Concrete
45. Anglo Italian Concrete (Anglo Italian) purchases concrete from
various concrete suppliers in Victoria.
46. Around July 2012 Anglo Italian was engaged as a subcontractor on the
construction of a data centre at Radnor Drive, Derrimut.54 Anglo
Italian engaged Boral to supply concrete on the project as they required
‘envirocrete’. Envirocrete is Boral’s speciality and they had been
engaged to supply concrete for the project on this basis.
47. In February 2013 Mr Michael Newitt, the site supervisor for the
project, had a conversation with the CFMEU delegate, known as
‘Herbie’. Herbie approached Mr Newitt to say that the union did not
want Boral to supply the concrete and to ask whether Anglo Italian
could use someone else.55
48. The evidence of Brett Young (General Manager of Anglo Italian) was
that Mr Newitt rang him to advise that ‘Boral trucks will not be
allowed on site.’ Mr Young said that Mr Newitt advised that he had
52 Anthony Simpson, witness statement, 18/9/14, para 9. 53 Steven Richardson, witness statement, 18/9/14, para 18. 54
Brett Young, witness statement, 18/9/14, para 4. 55 Michael Newitt, witness statement, 18/9/14, paras 5-6.
1032
been told this by ‘Herb’ who was passing on the instructions from his
superiors at the CFMEU.56
49. Mr Young telephoned Mr Lane, his contact at Boral, to confirm
whether Boral trucks would be allowed onto the project. A significant
pour for a roof slab was due to occur on 21 February 2013 and
confirmation was needed before this could go ahead.57 Mr Lane was
unable to confirm whether the Boral trucks would be stopped at the
site. Accordingly, Mr Young was unwilling to risk the possibility of
the pour being interrupted or stopped and so decided to use Hanson to
provide the concrete instead.58 Mr Lane’s evidence corroborated Mr
Young’s account.59
50. Around 4 or 5 March 2013, Mr Lane contacted Mr Young to advise
that Boral could again supply concrete to the site. Boral supplied the
fourth and final pour for the roof slab on 6 March 2013.60
51. Around 24 April 2013, Mr Newitt was advised that the CFMEU did
not want Boral delivering to the site. Herbie said words to the effect, ‘I
have spoken to my office and they said they are still not happy for us to
56 Brett Young, witness statement, 18/9/14, para 7. 57 Brett Young, witness statement, 18/9/14, paras 8-9. 58
Brett Young, witness statement, 18/9/14, para 10. 59 Richard Lane, witness statement, 9/7/14, paras 7-10. 60
Brett Young, witness statement, 18/9/14, para 11.
1033
use Boral.’61 Accordingly, Anglo Italian completed the project using
Hanson as its concrete supplier.62
CFMEU ban in operation from 18 February 2013: Kosta Concreting
52. Mr Darren Dudley was a manager for Kosta Concreting. Mr Jaromir
Misztak was a foreman for Kosta Concreting.
53. Their evidence was that in early 2013 Kosta Concreting was engaged
on a job in Elizabeth Street, Melbourne which involved the
construction of a nine storey apartment building. Kosta Concreting
had engaged Boral to supply the concrete for the project.
54. Mr Misztak’s evidence was that in about February or March 2013 Lou,
the CFMEU shop steward on the project, had said to him words to the
effect of ‘No
Boral on site’.63
55. Mr Dudley’s evidence was that in early April 2013 he was told by his
boss Sam that Lou had told Sam words to the effect of ‘You can’t use
Boral on site.’64 Shortly after this, in a conversation Mr Dudley had
with Lou, he discussed using Boral on site. Lou said to Mr Dudley
words to the effect, ‘use Boral if you like, but it will take you all day to
unload one truck.’65
61 Michael Newitt, witness statement, 18/9/14, para 10. 62 Brett Young, witness statement, 18/9/14, para 12. 63
Jaromir Misztak, witness statement, 18/9/14, paras 9. 64 Darren Dudley, witness statement, 18/9/14, para 8. 65
Darren Dudley, witness statement, 18/9/14, para 9.
1034
56. As Kosta Concreting was not willing to risk the possibility of trucks
being turned away or stopped by the CFMEU or any delays to the
Elizabeth Street Project, Kosta Concreting had to find an alternative
concrete supplier.66 This led Kosta Concreting to set up an account
with HyTec, to whom they paid $8 more per cubic metre for concrete
than they had paid to Boral.67
CFMEU ban in operation from 18 February 2013: Squadron Concrete
57. Mr Fabrizio Ubaldi was a manager for Squadron Concrete. He
testified that in early 2013 Squadron Concrete was engaged as a
landscaping subcontractor on the Tower 8 Project at Lorrimer Street,
Port Melbourne. The project was an apartment building being built by
Mirvac. Alsafe was engaged by Squadron Concrete to supply
concrete.68
58. Towards the end of Squadron Concrete’s work on the project, in
around February 2013, the CFMEU shop steward on the project said to
Mr Ubaldi ‘there is an issue with companies associated with Boral
Concrete and you shouldn’t use them on site.’ Mr Ubaldi’s evidence
was that:
As I did not want any issues on site and did not want the CFMEU to cause any unnecessary delays to Squadron Concrete’s works on site I decided to change to a different concrete supplier for [the] balance of Squadron Concrete’s work on the Tower 8 Project. I did not want to take the risk that using Alsafe would cause issues with the CFMEU. I changed to
66 Darren Dudley, witness statement, 18/9/14, para 10; Jaromir Misztak, witness statement, 18/9/14, para 10. 67
Darren Dudley, witness statement, 18/9/14, para 14. 68 Fabrizio Ubaldi, witness statement, 18/9/14, para 3.
1035
Pronto for the following two orders of the remaining work of the Tower 8 Project.69
CFMEU ban in operation from 18 February 2013: S & A Paving
59. Mr Santi Mangano, Director of S & A Paving, gave the following
evidence. Around 2013 S & A Paving engaged Alsafe to supply
concrete on the Hawthorn Aquatic Centre Project. The CFMEU
delegate said to Mr Mangano words to the effect: ‘if you use Boral on
site, we are going to check up on the trucks.’70 Mr Mangano’s
evidence was that as he could not afford any delays on site, or to stop
and start concrete pours, he changed suppliers for the remainder of the
project.71
The events of late March 2013: CFMEU’s ban expands beyond Boral
Concrete
60. In late March 2013 the CFMEU’s black ban of Boral Concrete in
Melbourne widened to Boral more generally.
61. Mr Iain Weinzierl was Account Manager for Boral Quarries and Boral
Recycling in Melbourne. He gave the following evidence.72
62. At approximately 7.50 am on 27 March 2013, Mr Weinzierl was
informed by Mr Robert Gillespie (Sales Service Centre Manager, Boral
Concrete and Quarries) that two truckloads of crushed rock had been
69 Fabrizio Ubaldi, witness statement, 18/9/14, para 5. 70 Santi Mangano, witness statement, 18/9/14, para 3. 71
Santi Mangano, witness statement, 18/9/14, para 5. 72 Ian Weinzierl, witness statement, 9/7/14, paras 3-8.
1036
turned away at the Costco shopping centre at Market Street, Ringwood
(Costco Project) due to the CFMEU ban. Boral had been engaged by
CDL Constructions Pty Ltd (CDL) to supply crushed rock to the
project. Following this incident, Mr Weinzierl became concerned that
there may have been similar incidents affecting other customers and so
decided to contact Civi Works, a major customer of Boral Quarries and
Boral Concrete. At approximately 9.30 am on 27 March 2013, Mr
Weinzierl contacted Mr Jay Wilks, Senior Foreman at Civi Works to
discuss what he had heard about the CFMEU bans of Boral. Mr Wilks
advised that the CFMEU shop steward on a project which Civi Works
was starting work on in Richmond for Kane Constructions had told
Civi Works not to use Boral Asphalt or Boral Concrete. Mr Wilks said
that the ban was a complete ban of Boral:
It is a complete ban - the shop steward from Kane told me that the CFMEU will apply maximum force to black ban all Boral products on site - Boral Building Products, Quarries, Concrete and Asphalt. We have to use alternative suppliers.
63. Mr Weinzierl was concerned about the exchange and arranged to meet
Mr Wilks the next day. The conversation included the following
exchange:
Wilks: My understanding is that the CFMEU shop stewards have said to all the larger civil contractors in Melbourne and the major commercial builders in Melbourne to stay away from all Boral products on CFMEU sites and to cancel all supply agreements with Boral. Boral’s name is mud with the CFMEU at the moment. It is all in relation to the Grocon saga.
Weinzierl: What do you understand that to mean - we thought the issue was limited to Boral Concrete?
1037
Wilks: No, it relates to all of Boral - Boral Quarries, Concrete, Asphalt and Plasterboard. Anything that is delivered in a Boral truck and is identified as a Boral product.
64. Mr Weinzierl’s evidence concerning the Costco Project was
corroborated by Mr Ben Cifali, a site engineer for CDL at the Costco
Project. His evidence was that in late March 2013 CDL ordered two
truckloads of crushed rock from Boral for delivery the following
morning. That morning, Mr Cifali witnessed the Boral trucks being
refused entry to the site by the CFMEU shop steward. He spoke to the
shop steward who stated: ‘No Boral trucks onsite.’ From this point on,
CDL ordered crushed rock from a different supplier.73
26 February-5 April 2013: Boral commences legal proceedings74
65. On 26 February 2013, shortly after the ban came into effect, Boral
Concrete and Alsafe commenced proceedings in the Supreme Court of
Victoria against the CFMEU seeking damages and final injunctions
(Supreme Court Proceeding).
66. By summons filed the same day, Boral sought interlocutory
injunctions. One was an injunction which would restrain the CFMEU
from procuring or advising any person employed or engaged to
perform concreting work at specified construction sites not to perform
that work or to perform it otherwise than in the manner in which it
would customarily be performed. The specified construction sites
included:
73 Ben Cifali, witness statement, 18/9/14, paras 2-7. 74 See generally Boral MFI-I, Vol 1
1038
(a) the Craigieburn Shopping project site being carried on by
Meridian;
(b) the 27 Little Collins, 82 Flinders Lane and ‘Lyonsville’ [scil
Lionsville] Retirement Village project sites being carried on
by Equiset;
(c) the Tower 8 project site being carried on by Squadron
Concrete;
(d) the Swinburne University project site being carried on by
Drive Projects;
(e) the Radnor Drive, Derrimut project site being carried on by
Anglo Italian; and
(f) the Cardinia Shire Offices and Ferntree Gully Road project
sites being carried on by Oceania.
67. On 28 February 2013, Hollingworth J granted the interlocutory relief
sought. The CFMEU had been served. But it chose not to appear.
68. On 7 March 2013, Hollingworth J confirmed and extended the
injunction beyond the specified construction sites to any location in
Victoria. Again the CMFEU was served. But again it did not appear.
69. On 5 April 2013, Hollingworth J made orders joining a number of
related Boral entities to the proceeding. She granted Boral leave to
amend its Statement of Claim. Her Honour also granted a further
1039
extension of the injunction by expanding its reach beyond concrete.
The effect was to restrain the CFMEU from carrying on a black ban in
Victoria of any of Boral products. Once again, the CFMEU did not
appear.
70. Following the grant of the injunctions, Mr Dalton sent a letter on 11
April 2013 to Boral’s customers in the Victorian region informing
customers of the court’s orders.75 Mr Dalton received a number of
replies. One of the substantive replies from a Boral customer included
the following:
Unfortunately with the way the Union plays their game, we are still left in a crappy position regardless of court orders or decisions.
We have specifically been told by Union Shop Stewards on two projects that we cannot use Boral.
… We may have written protection from the courts but the final power still belongs to the Union.76
71. There was other evidence to show that notwithstanding the court’s
order, the CFMEU continued its ban at this time. For example, an
email from Ms Maney to Mr Dalton on 15 March 2013 recounted: ‘We
have had two instances today of Shop Stewards telling customers that
“Boral are banned”. In one case (Civiworks) 1m3 of concrete was
cancelled on-route by the customer (the customers instructed us to
dump the load and that he will pay for the concrete).’77 The evidence
75 Paul Dalton, witness statement, 9/7/14, p 46. 76 Paul Dalton, witness statement, 9/7/14, p 52. 77
Paul Dalton, witness statement, 9/7/14, p 45.
1040
provided by the Anglo Italian witnesses78 and the Kosta Concreting
witnesses79 is to the same effect.
Boral’s meeting with the CFMEU on 23 April 2013
72. In April 2013, Mr Head discussed with Mr Dalton the possibility of
speaking to CFMEU officials to resolve the situation which had arisen.
73. On 22 April 2013 Mr Head had lunch with Mr Vin Sammartino, a
director of Hacer Group Pty Ltd (Hacer), and a person with many
contacts in the construction industry. Mr Head raised the difficulties
which black ban was causing Boral.80
74. During the lunch, Mr Sammartino phoned Mr Reardon, Assistant State
Secretary of the CFMEU. After the call ended, Mr Head stated that Mr
Sammartino said:
the CFMEU’s issue is with Daniel Grollo and John Van Camp of Grocon…it’s now personal between Grollo, Van Camp and Setka.81
75. Mr Sammartino suggested that Mr Head provide this information to Mr
Dalton. He said that he would arrange for Mr Setka and Mr Dalton to
have a discussion. Mr Sammartino phoned Mr Head later that day,
advising that the CFMEU were keen to talk off the record.82
78 See paras 45 - 51 above. 79 See paras 52 - 56 above. 80
Peter Head, witness statement, 9/7/14, para 21-22. 81 Peter Head, witness statement, 9/7/14, para 25. 82
Peter Head, witness statement, 9/7/14, paras 27-28.
1041
76. On 23 April 2013 Mr Dalton and Mr Head met Mr Reardon and Mr
Setka to discuss these issues. The meeting lasted for around 45
minutes.83
77. Mr Reardon and Mr Setka said that the discussion was off the record.
No-one stated at any stage that the conversation was without
prejudice.84 However, Mr Head’s evidence was that at one stage Mr
Reardon said ‘I would be happy if the legal stuff stopped but Setka
does not give a stuff’.85 Mr Setka also made an indirect reference to
the proceedings by Boral against the CFMEU by saying that Boral’s
lawyers in the proceedings were ‘no good’.86
78. Mr Setka did most of the talking at the meeting. Mr Setka mentioned
the CFMEU’s planned day of action for 30 April, which was being
held to protest about fatalities on Grocon sites.87
79. Mr Setka also stated that there was a deep feeling in the CFMEU
against Mr Daniel Grollo, then Chief Executive of Grocon and Mr
John Van Camp, then head of Grocon’s Safety, Systems and Industrial
Relations Divisions.88
80. Mr Dalton stated that Mr Setka said:
83 Paul Dalton, witness statement, 9/7/14, para 44. 84 Paul Dalton, witness statement, 9/7/14, para 29; Peter Head, witness statement, 9/7/14, para 38. 85
Peter Head, witness statement, 9/7/14, para 38. 86 Paul Dalton, witness statement, 9/7/14, para 29. 87
Paul Dalton, witness statement, 9/7/14, para 31. 88 Paul Dalton, witness statement, 9/7/14, para 33.
1042
Concrete supply is like an intravenous drug. Builders can’t survive without it.
We’re at war with Grocon and in a war you cut the supply lines.
Boral Concrete is a supply line to Grocon.89
81. Similarly, Mr Head stated that Mr Setka said words to the effect of ‘the
CFMEU is at war with Grocon’ and ‘if you want to starve the enemy
you cut their supply lines … we have not started’.90
82. Mr Dalton also recalls Mr Setka stating:
The CFMEU has limited resources so we will focus on “the Green and Gold”.
We will impact you more and more. Truck emissions testing will be the next phase of the action the CFMEU will take against Boral.
We’ve been fighting with one arm behind our back and we’re willing to significantly ramp up our campaign.91
83. Mr Dalton stated that he understood Mr Setka’s reference to the ‘Green
and Gold’ to refer to Boral: these are Boral’s corporate colours and the
company is commonly referred to in the industry by this name.92
84. Mr Setka then said that if Boral did not cooperate with the CFMEU,
they would target membership of its concrete batchers. Concrete
batchers are employed at Boral’s plants and are responsible for mixing
the raw materials for the various grades of concrete that Boral supplies.
89 Paul Dalton, witness statement, 9/7/14, para 35. 90 Peter Head, witness statement, 9/7/14, para 42. 91
Paul Dalton, witness statement, 9/7/14, para 36. 92 Paul Dalton, witness statement, 9/7/14, para 37.
1043
Boral’s concrete batchers are generally covered by the Australian
Workers’ Union.93
85. Mr Head’s evidence was that during the meeting Mr Setka said words
to the following effect:94
Just stop supplying Grocon for two weeks and this will go away.
How about we all have a bit of fun and just stop the Grocon trucks at the plant and let the other trucks through?
86. Mr Dalton’s evidence was similar. He stated that, during the meeting,
Mr Setka said words to the following effect:95
All you [Boral] have to do is stop supply to Grocon for a couple of weeks.
We can facilitate this by blockading your concrete plants and stopping supplies for Grocon directly. No one would have to know that you have stopped supply.
87. Mr Dalton’s evidence was that he advised Mr Setka that Boral would
not be doing any deals with the CFMEU and would continue to support
Grocon.96 Mr Setka advised that:
All wars end and once peace is established the CFMEU will be at the table to divide up the spoils. The CFMEU will decide who gets what and what market share Boral will get.97
93 Paul Dalton, witness statement, 9/7/14, para 39. 94 Peter Head, witness statement, 9/7/14, para 43. 95
Paul Dalton, witness statement, 9/7/14, para 40. 96 Paul Dalton, witness statement, 9/7/14, para 41. 97
Paul Dalton, witness statement, 9/7/14, para 42.
1044
88. Mr Head’s evidence about what Mr Setka said was similar: ‘At the end
we will be divvying up the spoils and we’ll decide who supplies who.
Grocon won’t give a shit about Boral at that point.’98
89. Immediately after the meeting, both Mr Dalton and Mr Head took
notes of the meeting. Those notes were in evidence before the
Commission.
90. Mr Mike Kane, CEO of Boral Ltd, reacted to the meeting as follows:
I was asked as to what would our position be, because we were being asked to stop supplying Grocon by this union, and I informed the management of the Victorian operations that we do not take orders from anyone as to who our customers are and that if we were going to have this union tell us who our customers were we should give them the keys of the operation and let them run the business. But we weren't doing that, so the answer was no, you supply your customers, you stick with your commitments and that was the way we proceeded.99
Further steps taken by Boral in response to the ban:100 Supreme Court
Proceeding
91. On 20 May 2013, Boral obtained default judgment on its Amended
Statement of Claim with the CFMEU to pay damages to be assessed.
The Amended Statement of Claim pleaded causes of action for the torts
of intimidation and conspiracy.
92. On 22 August 2013, Boral filed a summons in the Supreme Court
Proceeding seeking orders that the CFMEU be punished for contempt.
98 Peter Head, witness statement, 9/7/14, para 45. 99 Mike Kane, 9/7/14, T:57.15-24. 100
See generally Boral MFI-1, Vol 1.
1045
The statement of charges alleged that on 16 May 2013 Mr Joseph
Myles had engaged in a blockade of a Regional Rail Link construction
site at Joseph Street, Footscray, in contravention of the injunction
granted on 5 April 2013. It was further alleged that the CFMEU was in
contempt by failing to publish a statement on the CFMEU’s webpage
setting out certain matters required by Hollingworth J’s orders.
93. On 9 September 2013, the CFMEU filed a Notice of Appearance in the
Supreme Court Proceeding, more than six months after the proceeding
was commenced.
94. On 14 October 2013, Boral filed a summons for assessment of
damages. This was based on the view that Boral was in a position to
quantify its loss in relation to projects affected by the black bans in
early to mid-2013.
95. On 8 November 2013, the CFMEU made an application to set aside the
default judgment which had been entered on 20 May 2013. The
CFMEU’s application to set aside default judgment was heard by
Derham AsJ in the Supreme Court of Victoria on 30 January 2014. On
10 September 2014 the Court dismissed the CFMEU’s application to
set aside the default judgment.101
96. On 23 September 2014 the CFMEU filed a Notice of Appeal appealing
against Derham AsJ’s decision to the Trial Division of the Supreme
Court.102 Only two grounds of appeal were stated. The first is a novel
101 See Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429. 102
Boral MFI-2, Tab 3.
1046
ground that, despite copious contrary authority, the tort of intimidation
does not exist in Australian law. The second ground is that
Derham AsJ, in refusing to set aside the default judgment, erred in the
exercise of his discretion. Only the first ground is now being
pressed.103
97. In relation to the summons seeking relief for contempt the following
events took place:
(a) On 4 September 2013, the Attorney-General for Victoria
applied to be joined or to intervene in relation to the contempt
summons. That application was heard by Digby J on 19
September 2013. On 28 October 2013 Digby J granted leave
to the Attorney-General to be joined as a party.104 On 11
November 2013, the CFMEU sought leave to appeal from
Digby J’s order. On 13 December 2013, the Victorian Court
of Appeal heard and dismissed the CFMEU’s application for
leave to appeal.105
(b) On 2 October 2013, the Boral parties applied for discovery
against the CFMEU. On 23 October 2013, Daly AsJ refused
orders for discovery. On 1 November 2013, the Boral parties
appealed against Daly AsJ’s decision. That appeal was heard
by Digby J on 29 January 2014 and allowed on 25 March
103 Boral MFI-4, tab 1 (Letter dated 29 October 2014 from Slater & Gordon to Herbert Smith Freehills, responding to letter dated 28 October 2014 from Herbert Smith Freehills to Slater & Gordon). 104
Boral Resources (Vic) Pty Ltd v CFMEU [2013] VSC 572. 105 CFMEU v Boral Resources (Vic) Pty Ltd [2013] VSCA 378.
1047
2014.106 On 8 April 2014, the CFMEU applied for leave to
appeal Digby J’s decision ordering discovery. On 24 October
2014, the Victorian Court of Appeal delivered judgment
refusing the CFMEU leave to appeal.107
Further steps taken by Boral in response to the ban: involvement of
regulators
98. In April 2013 Boral brought the CFMEU’s conduct to the attention of
the Australian Competition and Consumer Commission (ACCC). Mr
Kane’s evidence to the Commission was that as at 7 July 2014 the
ACCC was conducting a formal investigation into these issues.108
99. In connection with that investigation, on 27 June 2013 the ACCC
issued the CFMEU with a notice under s 155(1)(c) of the Competition
and Consumer Act 2010 (Cth) requiring it to produce certain
documents in relation to possible contraventions of s 45D of that Act.
The ACCC subsequently issued notices to the CFMEU and its proper
officer, Yorick Piper, alleging that the CFMEU knowingly furnished
false or misleading information to the ACCC.
100. In June 2013, Boral brought the CFMEU’s conduct to Fair Work
Building and Construction’s attention. Mr Kane gave evidence that as
106 Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 120. 107
CFMEU v Boral Resources (Vic) Pty Ltd [2014] VSCA 261. 108 Mike Kane, Letter to Royal Commission, 9/7/14, p 6.
1048
at 7 July 2014 Fair Work Building and Construction was conducting a
formal investigation into these issues.109
101. On 21 May 2014, the Director of the Fair Work Building Industry
Inspectorate commenced a proceeding in the Federal Court against the
CFMEU and Mr Joseph Myles for pecuniary penalties for alleged
contraventions of the Fair Work Act 2009 (Cth) (Federal Court
Proceeding). The contraventions are said to arise from the alleged
blockade of the Regional Rail Link construction site at Joseph Street,
Footscray on 16 May 2013. The CFMEU and Mr Myles have applied
to stay the Federal Court Proceeding.
Continuation of the CFMEU ban
102. Notwithstanding the injunctions obtained by Boral in the Supreme
Court Proceeding, the CFMEU ban has largely continued.
Continuation of the CFMEU ban: Oceania - Williams Landing
103. In early February 2014, Boral successfully quoted for a job to supply
concrete to Oceania at the Williams Landing Shopping Centre Project.
Hacer was the builder on the project.
104. Mr Lane gave evidence that at some stage after Boral was awarded the
job, Mr Mark Milano spoke to him, saying:
I have met with Guy, the CFMEU Shop Steward on the site. He said to me that Boral is banned from the job. I pushed back and told him that Boral gives me the best commercial outcomes as I have based my pricing
109 Mike Kane, Letter to Royal Commission, 9/7/14, p 6.
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for the job on your offer to me based on our long term trading arrangements. Guy said he’d check with the CFMEU organiser, Drew McDonald. He later came back to me and told me that McDonald said there is no way Boral is allowed on this site.110
Mr Lane gave an account of this conversation to Ms Maney, who sent
an email to Mr Dalton on 5 March 2014 summarising Mr Lane’s
account at that time. The account in that email is consistent with Mr
Lane’s evidence.111
105. Boral decided to offer an incentive to Oceania of approximately
$20,000 worth of building material if Oceania could convince Hacer to
allow Boral to supply Oceania at the Williams Landing Shopping
Centre.112 Mr Sammartino of Hacer told Mr Milano that he needed to
speak with Mr Reardon of the CFMEU.113
106. Ultimately, Mr Milano attended a meeting with Mr Reardon on 4
March 2014 at which Mr Milano put his position to Mr Reardon and
Mr Reardon said words to the effect ‘ok, let me think about it’. Mr
Lane’s evidence, which is supported by Ms Maney’s email of 5 March
2014, is that Mr Milano reported that at that meeting Mr Reardon said
words to the effect of:
Boral will go down. By going legal, Boral has put the spotlight on the Union, costing us money. Boral will pay for this.
Leave it with me. I’ll be back to you before Thursday.114
110 Richard Lane, witness statement, 9/7/14, para 29. 111 Linda Maney, witness statement, 9/7/14, p 12. 112
Richard Lane, witness statement, 9/7/14, para 30. 113 Richard Lane, witness statement, 9/7/14, para 31; Mark Milano, witness statement, 18/9/14, para 27. 114
Richard Lane, witness statement, 9/7/14, para 32.
1050
107. Mr Reardon later confirmed that it was permissible for Oceania to use
Boral on the Williams Landing job.
Continuation of the CFMEU ban: BRC Piling - Olympic Park
108. Mr Dalton gave evidence that on 1 April 2014 he was advised that
BRC Piling (BRC) had cancelled an order of concrete at Olympic Park
‘because of union issues.’115 He instructed Mr Lane to initiate the
same process that Boral had adopted for Williams Landing to try to
avoid the CFMEU’s black ban.116 BRC had been a customer of
Boral’s for around 15 years. The relationship had developed over the
period from around January 2013 to a point where BRC bought
approximately 90% of its concrete from Boral.117
109. However, after further consideration, Boral calculated that it was not
feasible to offer a discounted rate of $136 per cubic metre to BRC,
given the low volume of the job.118 BRC engaged Boral’s competitor,
Holcim, for the Olympic Park project.
Continuation of the CFMEU ban: BRC Piling - Werribee Plaza
110. Around one week later, the same issue arose again with BRC on the
Werribee Plaza project.119 BRC had won the retention pile contract at
115 Paul Dalton, witness statement, 9/7/14, para 56. 116 Paul Dalton, witness statement, 9/7/14, para 57. 117
Richard Lane, witness statement, 9/7/14, para 35. 118 Paul Dalton, witness statement, 9/7/14, para 63. 119
Paul Dalton, witness statement, 9/7/14, para 65.
1051
the project.120 Mr Dalton gave evidence that Mr Craig Boam, the
Director of BRC, said to him: ‘If you give us that special rate for the
Werribee Plaza project, we’ll do our best to keep Boral on site
there.’121 Given BRC’s support, Boral decided to offer the discounted
rate of $136 per cubic metre to BRC for this project in order to win the
work.122
111. On 9 April 2014, BRC advised Boral that it had won the job to supply
concrete for the project.123
112. However, Mr Lane and Ms Maney gave evidence of conversations they
each had with Mr Boam on 15, 16 and 17 April 2014 to the effect that
the CFMEU and Straightline Excavations (BRC’s customer) had
applied pressure on Mr Boam to discontinue Boral’s services.124
113. On 17 April 2014 Mr Boam ordered six cubic metres of concrete to be
delivered at 2 pm the same day. The concrete was delivered and
poured apparently without incident.125
114. On 23 April 2014 Mr Lane and Ms Maney met with Mr Boam and
asked about the issues on the Werribee Plaza site.126 Mr Boam advised
120 Richard Lane, witness statement, 9/7/14, para 36. 121 Paul Dalton, witness statement, 9/7/14, para 65. 122
Paul Dalton, witness statement, 9/7/14, para 66. 123 Paul Dalton, witness statement, 9/7/14, para 67. 124
Linda Maney, witness statement, 9/7/14, paras 28-44; Richard Lane, witness statement, 9/7/14, paras 50-53. See also Linda Maney, witness statement, 9/7/14, p 16 (email from Linda Maney to Paul Dalton and others). 125
Linda Maney, witness statement, 9/7/14, para 46; Richard Lane, witness statement, 9/7/14, para 58.
1052
that Mr Tarkan Gulenc, a director of Straightline, had told him to
source another supplier by Monday. Despite their requests that he
push back against the CFMEU’s demands, Mr Boam stated that his
company could not afford the backlash or adverse effects from the
CFMEU. During the meeting, Mr Boam said:
Straightline is my client and they’ve told us to find another supplier straight after Easter because the union has put that much pressure on them. …
[Drew] MacDonald has been on site and has instructed us not to use Boral. He’s one of the union organisers and the boss of the Probuild shop steward on the project.127
As an alternative, the Boral representatives recommended that BRC
consider using Alsafe as a substitute supplier.
115. Mr Boam telephoned Mr Lane later that day, advising that Straightline
had agreed to allow Alsafe on site. He placed a to-be-confirmed order
for 2 pm on Monday 28 April 2014.128
116. On 28 April 2014 Mr Lane phoned Mr Boam several times, attempting
to confirm the job which was due to go ahead that afternoon.129 At
2.10 pm, Mr David McKerrell from BRC Piling called Mr Lane and
said words to the effect of:
126 Linda Maney, witness statement, 9/7/14, paras 47-62; Richard Lane, witness statement, 9/7/14, paras 60-68. 127
Richard Lane, witness statement, 9/7/14, paras 64, 66. 128 Linda Maney, witness statement, 9/7/14, para 63; Richard Lane, witness statement, 9/7/14, paras 68-69. 129
Richard Lane, witness statement, 9/7/14, paras 73-74.
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It’s all off. They won’t allow Alsafe here either and we’ve got to now find another supplier. You’ve given us an excellent rate here, it’s going to be hard for us to get that rate anywhere else.130
Continuation of the CFMEU ban: Town & Country - Werribee Plaza
117. Town & Country, a Ballarat-based concreting company, has a
longstanding relationship with Boral.131 Town & Country had won the
basement structural concrete contract for the Werribee Plaza project.
118. At the beginning of March 2014, Town & Country contacted Boral and
requested a quote for 4000m3 of concrete for the Werribee Plaza
project. On 14 April 2014, Mr Neil Phillips, Boral’s sales
representative for Town & Country, had a conversation with Mr Liam
Kinniburgh, part owner of Town & Country, during which Mr
Kinniburgh said:132
I have an issue with the Probuild shop steward on site. He asked me what concrete we would be using and when I said Boral he said ‘no way will Boral be on this site, they are suing us. If you push ahead with Boral expect trouble and hold ups on site’. I told him we would be using Boral.
119. On 1 May 2014 Mr Kinniburgh had a phone conversation in which he
told Mr Phillips that Town & Country would not be ordering from
Boral at the Werribee Plaza site:
Phillips: How is Werribee looking?
Kinniburgh: How do I put this, I have to be very careful what I say here, well, good for me but not for your guys.
Phillips: Why?
130 Richard Lane, witness statement, 9/7/14, para 77. 131 Paul Dalton, witness statement, 9/7/14, para 76. 132
Neil Phillips, witness statement, 9/7/14, para 14.
1054
Kinniburgh: Well the obvious, the same reason why the piling mob can’t use you guys.133
120. The following day, they met for lunch to discuss the situation. A
subsequent email sent from Mr Phillips to Ms Maney outlines the
conversation. In it, Mr Phillips notes that Mr Kinniburgh said to him
words to the effect: ‘there were witnesses to the Union telling Liam
that Boral is not to be on the site, but Liam does not want to be
involved in any way with this matter.’134
Effect of the ban on Boral
121. Mr Kane’s evidence was that since the start of the secondary boycott,
Boral has suffered an estimated loss in earnings (before interest and
tax) and in legal costs totalling approximately $8 million to $10 million
to the end of June 2014.135 His evidence was that as at 30 June 2014,
there were 80 CFMEU controlled construction projects underway in
Melbourne. Boral was only supplying concrete to five projects.
122. Further, in relation to construction projects in Melbourne exceeding
$50 million in value, there had been a decline in Boral’s market share
from around 35-40% in the 2011-2013 financial years to 9% in the
2014 financial year. There had been a decline in requests for quotes
from around 70-80% in the 2011-2013 financial years to 27% in the
2014 financial year.136
133 Neil Phillips, witness statement, 9/7/14, para 33 and p 34 (email from Neil Phillips to Lind Maney dated 1 May 2014). 134
Neil Phillips, witness statement, 9/7/14, p 34. 135 Mike Kane, Letter to Royal Commission, 9/7/14, p 3. 136
Mike Kane, Letter to Royal Commission, 9/7/14, p 15.
1055
123. In addition, Boral’s Melbourne concrete plant had experienced a 35%
reduction in capacity over the period of the ban and Boral’s lorry
owner drivers had experienced an average 18.4% reduction in earnings
for the three half year periods between 1 January 2013 and 30 June
2014 compared to the preceding half year period.137
124. Mr Kane summarised the impact of the CFMEU’s black ban on Boral
thus. He said the CFMEU had:
the ability to stop us, not only from delivering immediately onto many of these sites, an unheard of thing in the concrete world, that you could stop mid project and switch out concrete suppliers. But then once they were able to effect that result, they were able to intimidate our customer base to the point where we were no longer being solicited to bid on projects in this CBD context and high rise crane construction projects.138
125. In addition, he stated that in his 41 or 42 years’ experience in the
construction markets and building products and materials industry:
I've never seen a situation where you win work, you book it, you plan for it, you're ready to proceed, and then you're told by your supplier that they can't use you, not because there's a quality issue or anything with our work or our products, it's because a third party has told them that they're no longer allowed to use us. It's unheard of.139
126. In early June 2014 Ms Maney and the sales team prepared a
spreadsheet noting the status of each of Boral’s key customers.140
127. The sales team made phone calls to each of the customers with whom
they had a regular relationship. The spreadsheet records a number of
137 Mike Kane, Letter to Royal Commission, 9/7/14, pp 4-5. 138 Mike Kane, 9/7/14, T:58.32-39. 139
Mike Kane, 9/7/14, T:60.38-44. 140 Paul Dalton, witness statement, 9/7/14, para 86.
1056
comments regarding customers’ reluctance to use Boral due to the
CFMEU situation. These include: ‘Will use Boral on Non Union sites.
Will try on Union Jobs’; ‘Will not use Boral as Pronto do not have the
Union checking their trucks’; ‘Nervous about the Union issue and will
not use Boral on Union sites.’141
C - FINDINGS ON EVIDENCE
Relevance of evidence being uncontradicted and procedural issues
128. The CFMEU decided not to cross-examine the Boral witnesses or the
Boral customer witnesses. It also decided not to supply contradictory
evidence to counsel assisting with a view to his tendering it. These
decisions mean that the evidence of all of the witnesses is
uncontradicted.
129. In civil proceedings, the unexplained failure by a party who could, and
would be expected, to give evidence, call witnesses or tender
documents may properly allow a Court more easily to accept, and draw
inferences from, the evidence before the Court. The justification is
that the unexplained failure suggests that the party feared to adduce the
evidence because it would not have assisted. It is ‘plain
commonsense’.142
130. Although the proceedings of the Commission are not adversarial, a
principle akin to that in Jones v Dunkel can apply. An unexplained
failure by a person who would be expected to proffer testimony or
141 Paul Dalton, witness statement, 9/7/14, para 87. 142 Jones v Dunkel (1959) 101 CLR 298 at 321 per Windeyer J.
1057
documents contradicting other evidence before the Commission so that
it might be tendered by counsel assisting may properly allow the more
easy acceptance of the evidence, and may properly permit the
inferences to be drawn from it to be drawn more strongly.
131. The evidence squarely raises the possibility of contraventions of
various laws by the CFMEU and certain of its officers. The evidence
would be expected to be controverted by the CFMEU and its officers.
132. On 18 September 2014 senior counsel appearing for the CFMEU (who
also appeared for Mr Setka and Mr Reardon) advanced an explanation
for the CFMEU’s decision. It is the only explanation advanced. He
said he:
would not propose to cross-examine the Boral witnesses on the basis of the outstanding litigation where we and some of our members are defendants, and for that reason we have not put on statements from those members and we have not sought to deal with Boral in these proceedings, reserving our position in the curial proceedings.143
133. The reference to ‘the outstanding litigation’ would appear to be to the
Supreme Court Proceeding and the Federal Court Proceeding. So far
as the Commission is aware, as at 18 September 2014 they were the
only proceedings involving Boral and the CFMEU.
134. For a number of reasons, this is not a cogent explanation.
135. First, insofar as the Federal Court Proceeding and the charges of
contempt in the Supreme Court Proceeding are concerned, those
proceedings centre on specific allegations of conduct by Mr Joseph
143 Mr Agius, 18/9/2014, T:76.44-77.3.
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Myles on 16 May 2013. The Commission has no evidence before it in
relation to those matters. Accordingly, the existence of those
proceedings can provide no explanation for the CFMEU not seeking to
controvert the evidence before the Commission which concerns other
matters.
136. Secondly, insofar as the tort claims brought by Boral against the
CFMEU in the Supreme Court Proceeding are concerned it is difficult
to see how the giving of oral evidence by relevant officers and
members of the CFMEU to the Commission would affect that
proceeding, and cause prejudice to the CMFEU by giving Boral an
unfair advantage or otherwise create substantial injustice.
(a) At present, Boral has been completely successful. It has
obtained judgment by default. Unless and until that judgment
is set aside on appeal, there is no prospect of evidence on
liability, as distinct from quantum, being given in the
Supreme Court Proceeding.
(b) If the CFMEU’s appeal, which was heard by the Victorian
Court of Appeal on 10 December 2014, fails, then the
judgment stands and the Supreme Court Proceeding is
concluded (save for the assessment of damages). In that
event the Supreme Court Proceeding could not give rise to
any substantial injustice of a kind which would preclude the
expression in this Interim Report of concluded views in
respect of the Boral case study.
1059
(c) If the CFMEU’s appeal succeeds on the only ground now
pressed, that the tort of intimidation does not exist in
Australian law, then the Court of Appeal will have
determined that Boral’s amended statement of claim discloses
no cause of action. The cause of action pleaded in conspiracy
would collapse with the cause of action in intimidation
because it is dependent on it. If the Court of Appeal reaches
that conclusion, the amended statement of claim in the
Supreme Court Proceeding will be dismissed. In that event,
again, the Supreme Court Proceeding could not give rise to
any substantial injustice which would prevent the expression
of concluded views in the Interim Report in respect of the
Boral case study.
(d) Boral has not indicated that, if the appeal succeeds, the
Supreme Court Proceeding could continue on radically
amended pleadings alleging new causes of action. But even if
that course were theoretically possible, what prejudice
would the CFMEU suffer in the Supreme Court Proceeding if
certain of its officers had given evidence to the Commission?
That evidence could not sensibly be said to give Boral an
unfair advantage by opening up otherwise undiscovered lines
of inquiry. The availability of orders for discovery and
interrogatories, subpoenas, notices to produce and the
preparation of affidavits or outlines of evidence all serve to
ensure that both parties will be able to render themselves
aware of the case to be met before trial in the Supreme Court
and will be able to prepare for that trial.
1060
137. Thirdly, insofar as the CFMEU has documentary evidence which is
capable of controverting the evidence before the Commission, there is
no explanation why that evidence could not have been adduced.
138. Fourthly, at the first day of public hearings concerning the CFMEU on
7 July 2014, in response to certain press reports about the CFMEU’s
conduct regarding Boral, senior counsel for the CFMEU requested the
Commission to ‘make it plain’ that no conclusions adverse to the
interests of the CFMEU should be drawn until the CFMEU or those
adversely affected have had an opportunity to test and contradict the
evidence adverse to them.144 Senior counsel for the CFMEU declared:
the CFMEU, and in particular those individuals who may be adversely affected by the evidence, have a concern that their reputation will be trashed and that the press and the media will not reflect the fact that no adverse conclusions will be drawn until the union and/or those adversely concerned have had an opportunity to meet that evidence.145
139. This request and this declaration made by senior counsel appeared to
suggest that the CFMEU was very keen to bring forward any evidence
which would explain or contradict evidence adverse to its interests and
those of its officials and members, but felt aggrieved about the
consequences of not being able to do so in the week of 7 July. In fact
they have not done so. That suggests either that (a) their protestations
to the Commission on 7 July 2014 were confected - a view only to be
reached with extreme reluctance - and the CFMEU did not really want
an opportunity to contradict the evidence, presumably because there
was nothing exculpatory that could be said in response or (b) although
144 Mr Agius, 7/7/2014, T:6.27-34. 145 Mr Agius, 7/7/2014, T:7.10-16
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their protestations were genuine, again, there was nothing exculpatory
that could be said in response. Whichever is the correct conclusion, it
does not assist the CFMEU.
140. On 28 November 2014 senior counsel for the CFMEU endeavoured to
explain away the 7 July 2014 statement as follows:146
The CFMEU raised a complaint concerning denial of procedural fairness in that it did not have an opportunity to meet any allegations that may be made against it in a timely way. Counsel Assisting has treated this statement … as an indication that the CFMEU would volunteer evidence in the case study. This goes too far. On 7 July, the CFMEU had no way of knowing what would be the totality of the evidence that Counsel Assisting would call in the case study. They had no way of knowing, for example, that the hearsay letter from Mr [Kane] would, months later, be supplemented. A great deal of the evidence available at that time was hearsay. Much of it could never have been used in curial proceedings.
Direct evidence was only called months later when that supplementary evidence was put on. In those circumstances, nothing said on 7 July in those proceedings could properly be taken to be an indication that the CFMEU proposed to volunteer statements from witnesses in answer to the Boral allegations.
141. The so-called ‘direct’ evidence was in fact all put on just over two
months later. The submission that the 7 July statement could not have
been taken as an indication that the CFMEU would volunteer
statements in answer to the Boral allegations because on 7 July the
evidence relating to Boral was weaker than it later became is hard to
follow. Ordinarily where only weak evidence backs an allegation there
is less need to reply to it than when stronger evidence is put on.
142. The only response which the CFMEU has made to the Boral evidence
has been in the form of publicity, not proof. Mr Setka published the
following material on the CFMEU website:
146 Mr Agius, 28/11/14, T:29.17-36.
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US citizen Kane
Mike Kane, an American citizen who is paid $36,400 a week in his role as Boral CEO was allowed to deliver a political speech where he lectured everyone on how Australian laws need to be more like those in the US. He complained that industry was suffering as a result of the union’s power. What suffering? Last time I looked, the major construction companies were making massive profits.147
143. The only argument this contains is an assertion that the industry in
general (and presumably Boral in particular) had not suffered from
union power: yet Boral’s claims to have suffered, up to 30 June 2014,
to the extent of $8-10 million, does not seem implausible. Mr Setka’s
other points are merely ad hominem attacks. They command no
intellectual assent. They do not even seek to appeal to the intellect.
Their assembling of appeals to xenophobia, envy and political hatred
suggest that they can point to no substantive considerations. And the
evidence which Mr Setka complained about was not objected to by his
counsel: there was not a single objection to the letter in which some of
Mr Kane’s evidence was given, or to any question he was asked, or to
any answer he gave.
144. The CFMEU (together with Messrs Setka and Reardon) advanced two
other submissions which were put separately but have some
interlinking.
145. One was that the processes adopted in relation to the Boral study did
not give the CFMEU a fair time to consider and respond to the
allegations.148 The submission is based on the service of various
statements by Boral customers in the three weeks before the Boral
147 Boral MFI-3, tab 1. 148 CFMEU submissions, 14/11/14, Pt 8.2, para 8.
1063
hearing resumed on 18 September 2014 to continue the first hearing on
7 July 2014.149 That may explain a difficulty in cross-examining the
customers on 18 September 2014. It does not explain why no CFMEU
evidence was offered to counsel assisting with a view to the Boral-related evidence being answered. No application was made for the
fixing of further hearing days on which to cross-examine or have
further evidence received. Instead the CFMEU publicly indicated that
it would not challenge or respond to the statements from Boral’s
customers because of the litigation it was involved in with Boral.150
The CFMEU had previously adopted a contrary position on 7 July
2014, to the effect that it did want to respond to and challenge the
evidence. The CFMEU did not suggest on 18 September 2014 or at
any time prior to putting on its written submissions on 14 November
2014 that it wanted more time to put on responsive statements or
needed more time to investigate. The statements from Boral’s
customers were in respect of incidents which had already been dealt
with extensively in the statements of Boral witnesses in July 2014.
The Boral customers described the view from the Boral side, the
customers described the view from their side. The CFMEU has been
in a position to investigate and deal with those matters for over four
months.
146. The other CFMEU submission was that the rule in Jones v Dunkel
could not be applied because it was counsel assisting who had failed to
call witnesses and that there was no obligation on the CFMEU to
149 CFMEU submissions, 14/11/14, Pt 8.2, paras 7-8. 150 Mr Agius, 18/9/14, T:76.43-77.3.
1064
volunteer evidence.151 In consequence it was said that no findings
should be made against Messrs Setka and Reardon.152 Of course there
is no obligation on the CFMEU to volunteer evidence. The question is
what flows from its failure to take up an opportunity to do so. The
initial hearings on the Boral issue were in Melbourne in the week
beginning 7 July 2014. The hearings were regulated by Practice
Direction 1. Practice Direction 1 contemplated that following a
witness giving evidence, if any person wished to advance material
bearing on the accuracy of the evidence given by that witness, a second
witness could prepare a statement setting out the evidence that the
second witness would give if called. This procedure, which has been
used in previous Royal Commissions, balanced on the one hand the
need for a person affected by the evidence given by a witness to have
the opportunity to reply to it, and, on the other hand, the need to
identify and isolate the area of factual contest with a view to the
hearing proceeding more expeditiously.
147. Practice Direction 1, para 3, stated:
Where the Commissioner thinks it appropriate, he may dispense with or vary these practices and procedures, and any other practices or procedures that are subsequently published or adopted.
148. The CFMEU, Mr Setka and Mr Reardon made no application for a
variation to Practice Direction 1. Instead, senior counsel for the
CFMEU, Mr Setka and Mr Reardon made his declaration at the start of
the proceedings on 7 July about the CFMEU’s concern for the
151 CFMEU submissions, 14/11/14, Pt 1, paras 29-36. 152 CFMEU submissions, 14/11/14, Pt 8.2, paras 9-15.
1065
reputations of individuals who may be adversely affected by the
evidence, which was quoted above.153
149. The individuals to whom senior counsel referred must have included
Mr Setka and Mr Reardon. They were persons ‘who may be adversely
affected by the evidence’. The only reasonable conclusion to be drawn
from the quoted statement was that Mr Setka and Mr Reardon were
proposing to supply statements to counsel assisting in the ordinary
course. Had either of them done so, he would have been called by
counsel assisting to give that evidence.
150. At some point the CFMEU radically changed its strategy. The
CFMEU, Mr Setka and Mr Reardon chose not to contest any of the
evidence. Having made that tactical decision, and having chosen in
their own interests not to go into evidence, they cannot contend that
there should be no findings against them in the Interim Report. Nor
can they prevent any reliance on a principle analogous to Jones v
Dunkel.
151. The reasoning involved in that principle does not depend on using
inferences as a substitute for evidence. There is direct and
unchallenged evidence from the witnesses from Boral and Boral’s
customers. Because it is uncontradicted, it may more readily be
accepted. And where inferences can be drawn from it, there is no good
reason why those inferences should not be drawn more strongly. No
good reason was advanced to explain their decision not to challenge
that evidence. Further, in the CFMEU application for authorisation to
153 See paras 138-139 above.
1066
be represented it was said that its appearance would assist the
Commission in ‘enabling it to consider all relevant matters’. There is
no reason to doubt the bona fides of that assurance. In that event, if Mr
Setka or Mr Reardon had something relevant to contribute, they would
have done so. That they have not done so indicates that they cannot
contradict the Boral evidence and the evidence of the Boral customers.
152. The CFMEU submitted that the reasoning which led counsel assisting
to urge a delay in considering Katherine Jackson’s position pending the
outcome of civil litigation brought against her by a branch of the HSU
ought to produce the same consequence in relation to the litigation
brought by Boral against the CFMEU.154 This submission proceeds on
the incorrect premise that the two case studies are the same. A few
examples of the many differences may be selected. With Boral there is
a discrete body of uncontested factual material capable of assessment,
the CFMEU has judgment against it, and even if that judgment were
reversed, the suit against the CFMEU would be dismissed and the
proceedings would no longer exist. In the case of Katherine Jackson,
there is no judgment, the litigation appears destined to continue, there
is no discrete body of uncontested factual material capable of ready
assessment, and the opposing parties to the civil suit appeared before
the Commission and advanced contrary positions about the materials in
such a way as to make it more (rather than less) difficult for a
concluded view to be taken about them. In addition, the parties to the
HSU-Jackson civil case have each expressly concurred with the course
proposed by counsel assisting.
154 CFMEU submissions, 14/11/14, Pt 8.2, paras 33-36.
1067
The ACCC Federal Court Proceeding
153. An important event has taken place since the delivery of the CFMEU’s
written submissions on 14 November 2014. Since 7 October 2014 it
has been widely known that this Commission’s Interim Report will be
presented on 15 December 2014. The ACCC commenced Federal
Court proceedings against the CFMEU, Mr Setka and Mr Reardon on
20 November 2014. As the late Joseph Vissarionovich Stalin used to
say, this is no coincidence.
154. In those proceedings the ACCC seeks among things pecuniary penalty
orders and publication orders. The proceedings are civil in nature.155
The factual matters pleaded in the ACCC statement of claim are
similar to the factual matters recounted above. The ACCC has alleged
that the respondents engaged in conduct that involved a contravention
of s 45D of the Competition and Consumer Act 2010 (Cth) and an
attempt to induce Boral to contravene s 45E of that Act. The ACCC
does not allege the existence of a cartel between the CFMEU and the
Boral customers. That may be on the basis that it views the conduct of
the Boral customers as being independent, not concerted. In passing,
an argument that it is not necessary to establish the existence of
communications between all of the participants to a cartel arrangement
or understanding may be foreshadowed.156
155. The ACCC Federal Court proceeding is at a very early stage. It is
reasonable to expect that it will be some time before there is a trial.
The first directions hearing is listed for 12 December 2014. It is not
155 CEPU v ACCC (2007) 162 FCR 466. 156 See below paras 219 - 221.
1068
clear what factual and legal issues are in dispute. No doubt that will
become clearer when and if the CFMEU puts on a defence. At present,
however, it is unclear whether any of the factual matters alleged will be
in serious contest.
156. Even assuming that there turns out to be some factual issues, the
ACCC Federal Court proceeding will be heard by a judge. The court
which hears the matter will decide it on the basis of the particular body
of evidence tendered, having seen that evidence tested through cross-examination, and having heard detailed argument from the parties as to
what facts should be found on the basis of the evidence and as to how
the law is to be applied to those facts.
157. In those circumstances it is difficult to see, as a matter of ‘practical
reality’ as opposed to ‘theoretical tendency’,157 what risk any
expression of views in the Interim Report poses to the course of justice
in the Federal Court. This is not a case where the Commission has
attempted to summons a person who is the subject of a criminal charge
to give evidence, thereby impinging upon that person’s right to silence
at the criminal trial and thereby affecting the person’s defence.158
Attempts to compel Messrs Setka and Reardon to give evidence before
the Commission about matters which are in contest in the Federal
Court might cause issues of that kind to arise. But no attempt is being
made. Further, since this is not a case where the proceedings in
question will be determined by a jury, there can be no rational fear that
157 Hammond v Commonwealth of Australia (1982) 152 CLR 188 per Gibbs CJ. 158 Hammond v Commonwealth of Australia (1982) 152 CLR 188.
1069
the Interim Report and publicity about it would influence the outcome
of the proceedings.159
158. No real risk to justice has been identified by the CFMEU, even though
it raised the ACCC investigation as a basis for contending that this
Commission should not express conclusions. It is that investigation
which has led to the Federal Court Proceeding. In written submissions
dated 25 November 2014, counsel assisting invited the CFMEU to
make a further submission on this discrete subject if it wished. The
CFMEU did not apply for leave to deliver any further written
submission. In oral argument on 28 November 2014, it submitted only
that the Interim Report should not make findings of contraventions
against the respondents to the ACCC Federal Court proceeding. That
submission is acceded to for reasons discussed in Chapter 1. No
finding of a contravention of the Act has been stated. All that is said is
that certain behaviour may constitute a contravention.
Evidence of the Boral customer witnesses considered in its own right
159. In any event and irrespective of any analogy with Jones v Dunkel, the
evidence of the Boral customer witnesses is truthful and generally
reliable.
(a) None of the Boral customer witnesses have any motive
falsely to implicate the CFMEU, its members or officers. To
the contrary, they have a great material and financial interest
in exculpating and pacifying the CFMEU. Their evidence
159 Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25; Hammond v Commonwealth of Australia (1982) 152 CLR 188.
1070
against the CFMEU is strongly against the industrial and
financial interests of the businesses they work for. They
know that the CFMEU has a long memory. They know it has
an instinct for punishment. To adapt Mr Reardon’s words to
Mr Milano on 4 March 2014, like Boral, they ‘will pay for
this’.160
(b) To a very large extent the evidence of the witnesses is direct
evidence of what they saw at relevant construction sites,
evidence of what they were told by CFMEU shop stewards at
those construction sites, or evidence corroborating the
evidence of other witnesses who attest to what they were told
by CFMEU shop stewards.
(c) The reliability of the evidence given by the Boral customer
witnesses in relation to the CFMEU’s ban of Boral is
reinforced by the striking similarity of the CFMEU conduct
reported at the various construction sites.
Evidence of the Boral witnesses considered in its own right
160. Again, irrespective of any analogy with Jones v Dunkel, the evidence
of the Boral witnesses is truthful and reliable. They have no apparent
motive to lie. Where relevant contemporaneous documents exist their
evidence is consistent with those documents. Their evidence is
consistent with the general pattern of evidence given by the Boral
customer witnesses. In some cases it is directly corroborated by
evidence of the Boral customer witnesses. Those of the Boral
160 See para 106.
1071
witnesses who gave oral evidence were entirely satisfactory in
demeanour. They gave the strong impression of being very competent
and professional executives concerned only to ensure that their
employer could carry on its business with customers who never
complained about the quality of Boral products or service. They
showed no spite or animus against the CFMEU.
161. For obvious reasons, some of the evidence given by the Boral
witnesses is hearsay, consisting of reports made to them (or others) by
Boral customers about what was said to them by CFMEU officials on
site. Although the Commission is not bound by the rules of evidence,
it may of course have regard to those rules when assessing the
reliability of evidence. Even under the rules of evidence, and ignoring
the many exceptions to the hearsay rule as now applying under the
Evidence Act 2008 (Vic), the evidence of the Boral witnesses about
what customers reported to them is admissible to prove the fact of the
report of a CFMEU ban by the customer. The existence of numerous
reports of a CFMEU ban from a variety of sources over an extended
period is relevant to demonstrating, and is in fact very good evidence
of, the fact of the CFMEU ban.
162. In particular, the evidence of Mr Dalton and Mr Head concerning what
occurred and was said at the 23 April 2013 meeting was truthful and
reliable. Both men hold senior positions in Boral. Their accounts are
consistent. Thus they corroborate each other. Mr Kane’s evidence
plainly shows that the evidence was not of recent invention. Their
accounts are also confirmed by independently made contemporaneous
notes of the meeting. There is nothing inherently improbable or
1072
implausible in their evidence. Their accounts may be accepted in their
entirety.
The effect of the default judgment
163. It is safe to act on the evidence of both the Boral witnesses and the
Boral customer witnesses for another reason.
164. On 5 April 2013, Hollingworth J directed the CFMEU to file and serve
a defence by 4pm on Friday 17 May 2013. The CFMEU did not
comply with that direction. Her Honour gave judgment in default of
defence on 20 May 2013. Those events meant that the CFMEU was
taken to admit all the allegations of material fact in the amended
statement of claim. Among those allegations of material fact are those
made in paragraphs 4-11.161
4. It is and, at all material times, was the practice of the CFMEU to appoint, at each Victorian Construction Project site, a person or persons to fulfil the role of, or otherwise to act as, its “delegate”, “shop steward” or “job representative” for that site.
5. Each of the persons who, at times material to this statement of claim, was appointed as described in paragraph 4 above (each of whom is referred to, hereafter, as a “Delegate”) was authorised by the CFMEU to, amongst other things:
(a) liaise, on behalf of the CFMEU, with management representatives at the Victorian Construction Project site in connection with which they were so appointed; and
(b) communicate, implement and enforce - on behalf of the CFMEU and in howsoever a manner that they considered appropriate - the policies of the CFMEU at that Victorian Construction Project site.
161 Boral MFI-1, Vol 1, tabs 8, 9.
1073
6. On or about Thursday, 14 February 2013, the CFMEU adopted a policy, or otherwise resolved, to the effect that the entities, businesses and individuals that manage or perform work in connection with Victorian Construction Projects (hereafter, “Victorian Construction Principals and Subcontractors”) ought not to, in connection with such management or the performance of such work, receive, use or work with concrete supplied by either of Boral or Alsafe.
165. The particulars to paragraph 6 defined the expression ‘the Ban Against
Boral and Alsafe’ as the conduct described in paragraph 6. The
pleading continued:
…
6A. On or about - or, in any event, prior to - Wednesday, 27 March 2013, the CFMEU adopted a policy, or otherwise resolved, to the effect that Victorian Construction Principals and Subcontractors ought not to, in connection with the management of, or the performance of work in connection with, Victorian Construction Projects, receive, use or work with any products supplied by any of the plaintiffs.
166. The particulars to paragraph 6A defined the expression ‘The Ban
Against All Boral Products’ as the conduct described in paragraph 6A.
The pleading continued:
7. Since Thursday, 14 February 2013, the CFMEU has communicated to Victorian Construction Principals and Subcontractors the following, namely:
(a) the existence of the Ban Against Boral and Alsafe; and
(b) its intention to enforce - or, otherwise, to support - that ban by procuring or encouraging individuals who are employed or otherwise engaged to work at Victorian Construction Project sites and whose work includes, or would normally or otherwise include, receiving, using or working with concrete (hereafter, “Concrete Workers”), to refuse or fail insofar as involves concrete supplied by either of Boral or Alsafe, to perform that work as, if or when directed or required, by any person, to do so (which refusals or failures are referred to
1074
hereafter as, “Refusals by Concrete Workers to Work With Boral and Alsafe Concrete”).
…
7A. Since Wednesday, 27 March 2013, the CFMEU has communicated to Victorian Construction Principals and Subcontractors the following, namely:
(a) the existence of the Ban Against All Boral Products; and
(b) its intention to enforce - or, otherwise, to support - that ban by procuring or encouraging individuals who are employed or otherwise engaged to perform construction work at Victorian Construction Project sites (hereafter, “Construction Workers”), to refuse or fail, insofar as involves building products supplied by any of the plaintiffs, to perform that work as, if or when directed or required, by any person, to do so (which refusals or failures are referred to hereafter as, “Refusals by Construction Workers to Work With Boral Products”).
…
8. Each of the Concrete Workers is and/or, at all material times, was party to a contract pursuant to which he is and/or was employed - or, alternatively, engaged - to perform work at a Victorian Construction Project site.
…
8A. Each of the Construction Workers is and/or, at all material times, was party to a contract pursuant to which he is and/or was employed - or, alternatively, engaged - to perform work at a Victorian Construction Project site.
...
9. There are and, at all material times, were items of each of the contracts referred to at paragraphs 8 and 8A above, relevantly including that the individual Concrete Worker or Construction Worker who is and/or was party to each such contract will and/or would, at the Victorian Construction Project site at which he is and/or was employed or engaged - and in such manner as he is and/or was reasonably directed or required to by his employer or its nominee - perform tasks associated with the receipt or use of,
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and otherwise work with, products supplied by any of the plaintiffs (hereafter, “the Lawful Direction Clause”).
10. The procuring or encouraging of either or both of:
(aa) Refusals by Concrete Workers to Work With Boral and Alsafe Concrete; and
(ab) Refusals by Construction Workers to Work With Boral Products,
if carried out at or in connection with individual Victorian Construction Project sites, would involve, or would have involved, the CFMEU, by its Delegate or Delegates at each such site (or howsoever otherwise) - or, alternatively the Delegate or Delegates at each such site, in concert with the CFMEU:
(a) intentionally procuring the breach, by individual Concrete Workers or Construction Workers employed or engaged (as the case may be) to perform work at that site, of the Lawful Direction Clause of the contract pursuant to which each such worker was so employed or engaged; and
(b) hindering or preventing, contrary to sec. 45D of the Competition and Consumer Act 2010 (Cth), the acquisition, by Victorian Construction Principals and Subcontractors employed or engaged at that site, of (respectively):
(i) concrete from Boral and Alsafe (or one or other of them); and
(ii) building products from any one or more of the plaintiffs,
in each case for the purpose, and with the likely effect, of causing the plaintiffs’ businesses (or the business of one or more of the plaintiffs) substantial loss or damage.
11. Alternatively to paragraph 7 above:
(a) on or about Thursday, 14 February 2013 - and with the intention of causing each of Boral and Alsafe loss or damage - the CFMEU and Delegates from Victorian Construction Project sites conspired to communicate to Victorian Construction Principals and Subcontractors (or some of them) as follows, namely:
1076
(i) the existence of the Ban Against Boral and
Alsafe; and
(ii) the intention of the CFMEU and/or the Delegates to enforce - or, otherwise, to support - that ban by procuring or encouraging Refusals by Concrete Workers to Work With Boral and Alsafe Concrete,
(hereafter, the “Concrete Ban Communications”); and
(b) since Thursday, 14 February 2013 - and pursuant to the conspiracy pleaded at subparagraph (a) above - the Delegates (or some of them) have effected each of the Concrete Ban Communications.
…
11A. Alternatively to paragraph 7A above:
(a) on or about Wednesday, 27 March 2013 - and with the intention of causing each of the plaintiffs loss or damage - the CFMEU and Delegates from Victorian Construction Project sites conspired to communicate to Victorian Construction Principals and Subcontractors (or some of them) as follows, namely:
(i) the existence of the Ban Against All Boral
Products; and
(ii) the intention of the CFMEU and/or the Delegates to enforce - or, otherwise, to support - that ban by procuring or encouraging Refusals by Construction Workers to Work With Boral Products,
(hereafter, the “Boral-wide Ban Communications”); and
(b) since Wednesday, 27 March 2013 - and pursuant to the conspiracy pleaded at subparagraph (a) above - the Delegates (or some of them) have effected each of the Boral-wide Ban Communications.
…
1077
167. Those material facts, now admitted by the CFMEU, are consistent with
and supportive of the evidence of the Boral witnesses and the Boral
customer witnesses.
D - LEGAL ISSUES
168. The evidence gives rise to the potential contravention of a number of
legislative provisions.
Secondary boycott provisions: Competition and Consumer Act 2010 (Cth),
section 45D
169. Section 45D of the Competition and Consumer Act 2010 (the Act)
prohibits secondary boycotts. The section provides:
(1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and
(iii) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.
(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
1078
(3) Subsection (1) applies if the fourth person is a corporation.
(4) Subsection (1) also applies if:
(a) The third person is a corporation and the fourth person is not a corporation; and
(b) The conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person.
170. Contravention of s 45D is not a criminal offence. Instead, a person
who contravenes s 45D is liable to a pecuniary penalty: the Act, s
76(1). The maximum penalty payable is $750,000 in respect of a body
corporate and $500,000 in respect of a person who is not a body
corporate: the Act, ss 76(1A)(a), (1B)(b). In addition, a person who
suffers loss or damage by reason of conduct in contravention of s 45D
may recover the amount of the loss or damage: the Act, s 82. Section
87 also grants a power to order monetary relief. And s 80 creates a
power to grant injunctive relief.
171. The scope of s 45D is affected by s 45DC. That section provides that
where two or more persons, each of whom is a member or officer of
the same ‘organisation of employees’, engage in conduct in concert
with each other then, unless the organisation can prove otherwise, the
organisation is taken to have engaged in concert with those persons and
for the same purposes. ‘Organisation of employees’ means an
organisation that exists or is carried on for the purpose, or for purposes
that include the purpose, of furthering the interests of its members in
relation to their employment eg a trade union. The section creates a
rebuttable presumption that a trade union has engaged in conduct
1079
proscribed by s 45D if two or more of the participants in the conduct
are members or officers of the union.162
172. Section 45DD creates a number of defences to s 45D. Most relevantly,
s 45DD(2) provides that if an employee, or two or more employees
employed by the same employer, engage in conduct in concert with an
organisation of employees and the dominant purpose for which the
conduct is engaged in is substantially related to the remuneration,
conditions of employment, hours of work or working conditions of the
employee, or any of the employees engaging in the conduct, then
relevantly the organisation of employees does not contravene s 45D.
173. On the evidence before the Commission, the CFMEU’s conduct from
14 February 2013 onwards was conduct, which in concert with a
number of CFMEU shop stewards and senior officers:
(a) hindered or prevented a number of customers of Boral from
acquiring goods from Boral, with the purpose and effect, or
likely effect, of causing substantial loss or damage to Boral’s
business; and
(b) hindered Boral from suppling goods to Grocon with the
purpose and likely effect of causing substantial loss or
damage to Grocon’s business.
174. ‘Acting in concert’ involves ‘knowing conduct, the result of
communications between the parties and not simply simultaneous
162 ANL Container Line Pty Ltd v Maritime Union of Australia [2000] ATPR 41-769 at 41,079-41,080 per Lee J.
1080
actions occurring spontaneously’.163 Acting in concert can be inferred
from the conduct of the parties, as where there is such a concurrence of
time, character, direction and result as to lead to the inference that
apparently separate acts were the outcome of pre-concert.164
175. There is no direct evidence before the Commission of communication
between the various CFMEU shop stewards who implemented the
black ban at the various construction sites in Melbourne, The inference
is that their actions against Boral were part of a deliberate and
orchestrated course of conduct originating from the CFMEU. The
deliberate and orchestrated nature of the conduct is evident from the
widespread operation of the ban involving a number of Boral
customers at numerous construction sites over a lengthy period. It is
confirmed by the evidence as to what was said by Mr Setka at the 23
April 2013 meeting, in particular his reference to the CFMEU being
‘willing to significantly ramp up our campaign’.165 The evidence from
all of the Boral witnesses and Boral customer witnesses is to the effect
that the CFMEU, as an organisation, black banned Boral. The concept
of an organisation-wide ban, being carried on as a campaign, is the
very essence of conduct in concert.
176. ‘Hinder’ in s 45D ‘has received a broad construction, as in any way
affecting to an appreciable extent the ease of the usual way of
supplying or acquiring goods or services’.166 The conduct preventing
163 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 373 per Bowen CJ. 164
R v Associated Northern Collieries (1911) 14 CLR 387 at 400 per Isaacs J. 165 Paul Dalton, witness statement, 9/7/14, para 36. 166
Australian Wool Innovation v Newkirk (2005) ATPR 42-053; [2005] FCA 290 at [34] per Hely J.
1081
or hindering supply or acquisition need not be physical interference but
can consist of threat and intimidation.167
177. In some cases, the CFMEU’s conduct actually prevented the
acquisition of goods by Boral’s customers.168 In other cases, the
implicit or explicit threat was made by CFMEU shop stewards that if
the customer acquired concrete or other products from Boral, the trucks
would be stopped and the customer would experience delays in
unloading the goods, with consequent delays in construction.169 The
threatening and intimidatory conduct in question made it more difficult
for Boral’s customers to acquire goods from Boral, thereby hindering
the acquisition of goods from Boral.
178. Further, the ban also had the effect of making it more difficult for
Boral to supply concrete to Grocon. By targeting Boral’s customers,
the effect of the ban was to cause substantial economic loss to Boral.170
The suffering of that loss hindered, in the sense of restricted and
impaired, Boral’s ability to supply Grocon.
179. Section 45D(2) contemplates that a secondary boycott may be engaged
in for a number of purposes. It is sufficient if one of the purposes of
engaging in the relevant conduct is a proscribed purpose: s 45D(2).
167 Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 251 per Deane J, the other members of the Court agreeing on this point; Australian Builders’ Labourers’ Federated Union of Workers - Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 at 459-460 per Lockhart and Gummow JJ. 168
See above paras 62-64. 169 See above, eg, paras 44, 55, 58, 59. 170
See paras 121-127 above.
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180. In the present case, the CFMEU had two purposes in engaging in the
ban of Boral. One was to cause substantial damage to Boral so as to
intimidate it into stopping supply to Grocon. The second was, by
intimidating Boral into ceasing supply to Grocon, to cause substantial
damage to Grocon. The existence of those purposes is evidenced by
Mr Dalton’s and Mr Head’s account of the 23 April 2013 meeting.171
The existence of the first purpose is supported by the ban against
Boral, its prolonged nature and its extension beyond Boral Concrete to
all Boral’s products. Additional evidence of the second purpose
includes Mr Setka’s initial call to Mr Dalton in late 2012.172
181. The proscribed purposes must be to cause substantial loss or damage to
the target corporation. To satisfy this requirement it is not necessary to
establish that the loss or damage would be a major blow to the target’s
business. It is sufficient to show that the loss or damage would be ‘real
or of substance and not insubstantial or nominal’.173 Being prevented
from carrying out a contract for reward is ‘substantial’ in the requisite
sense.174
182. Plainly, the actual loss suffered by Boral from the CFMEU’s conduct
may be substantial. Boral estimates it has suffered loss of between $8-
$10 million to the end of June 2014.175 It has clearly lost many orders
of concrete. A purpose of causing substantial damage can be inferred
171 See above paras 72-89. 172 See above para 13. 173
Building Workers’ Industrial Union of Australia v ODCO Pty Ltd (1991) 29 FCR 104 at 140 per Wilcox, Burchett and Ryan JJ. 174 A&L Silvestri Pty Ltd v CFMEU (2007) 165 IR 94; [2007] FCA 1047 at [78] per Gyles J. 175
See above para 121.
1083
from the amount of damage caused. In any event, the purpose of the
CFMEU’s ban was to inflict a substantial loss so as to intimidate Boral
into ceasing supply to Grocon. Anything less than a substantial loss to
Boral would be ineffective in achieving the CFMEU’s ultimate goal of
damaging Grocon.
183. The purpose of the CFMEU’s ban was to cause substantial damage to
Grocon. Adapting Mr Setka’s words, the CFMEU’s war against
Grocon was to be won by cutting the major supply line to Grocon,
which was concrete, because without it Grocon could not ‘survive’.176
Ms Maney’s evidence was that without concrete supplied by Boral,
Grocon would not be able to operate ‘without a lot of difficulty’.177
184. In addition to possessing the proscribed purpose, the conduct must be
conduct which ‘would have or be likely to have the effect, of causing
substantial loss or damage’ to the target. The language of the section is
clearly ‘forward looking’: the enquiry is not whether substantial loss or
damage is actually suffered.178 Accordingly, if the phrase ‘be likely to
have’ is to be given any work to do, it must mean something other than
on the balance of probabilities. The better view is that conduct will ‘be
likely to have the effect of causing substantial loss or damage’ to the
target if there is having regard to the circumstances ‘a real chance or
possibility that [the conduct] will, if pursued, cause such loss or
damage’.179 Whether conduct is likely in that sense ‘is a question to be
176 See above para 80. 177 See also para 12. 178
Building Workers’ Industrial Union of Australia v ODCO Pty Ltd (1991) 29 FCR 104 at 139 per Wilcox, Burchett and Ryan JJ. 179 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 381-382 per Deane J (FC).
1084
determined by reference to well-established standards of what could
reasonably be expected to be the consequence of the relevant conduct
in the circumstances’, relevant to which is the purpose for which the
conduct was engaged in.180
185. The argument above181 supports the view that the CMFEU’s conduct
satisfies this requirement of the section.
186. In relation to the effect or likely effect on Grocon, because Boral did
not succumb to the CFMEU’s pressure and intimidation and continued
to supply Grocon, there is no evidence before the Commission of any
specific loss suffered by Grocon as a result of the CFMEU’s conduct.
But that does not matter. The CFMEU’s purpose was to cause loss. It
could reasonably have been expected that Boral would succumb to the
CFMEU’s intimidation and pressure, as Boral’s customers did. Plainly
the CFMEU thought that Boral would succumb, since that is why they
started the ban in the first place. In that event, there would inevitably
have been substantial loss to Grocon.182
187. The defendant has the onus of establishing any defence under s 45DD
of the Act.183
180 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 382 per Deane J. 181
See para 182. 182 See para 12 above. 183
Mudginberri Station Pty Ltd v Australasian Meat Industry Employees’ Union(1985) ATPR 40-598 at 46,841; Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2008) 169 FCR 583at [40]-[42] (FC).
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188. Given that none of the CFMEU shop stewards was employed by Boral
and the CFMEU has no coverage of Boral Southern Region
employees184 there is no prospect of any of the defences in s 45DD
applying to the secondary boycott of Boral.
189. In relation to the secondary boycott of Grocon, the persons who
implemented the black ban of Boral were CFMEU shop stewards
employed at sites other than Grocon sites. Accordingly, even if (as
might be asserted) the dominant purpose of the secondary boycott
related to safety on Grocon sites, the defence in s 45DD(2) could not
apply as that defence only relates to the working conditions of
employees engaged in the conduct constituting the secondary boycott.
190. Hence each of the CFMEU, and the various CFMEU shop stewards,
organisers and officers who implemented the ban (including Messrs
Setka and Reardon) may have contravened s 45D of the Act. Since the
ACCC has already commenced proceedings for contraventions of s
45D, the Interim Report does not include a separate recommendation
on this point.
Arrangements affecting the supply or acquisition of goods: Competition and Consumer Act 2010 (Cth), section 45E
191. Section 45E of the Act deals with conduct that indirectly leads to a
secondary boycott. There are two possibilities which are here relevant:
the prohibition in a supply situation (s 45E(2)) and the prohibition in
an acquisition situation (s 45E(3)). In summary, those subsections
relevantly provide that:
184 See Paul Dalton, witness statement, 9/7/14, para 2.
1086
(a) a person (the first person) who has been accustomed, or is
under an obligation, to supply goods or services to, or acquire
goods or services from, another person (the second person),
(b) must not, provided at least one of the first and second persons
is a corporation,
(c) make a contract or arrangement, or arrive at an understanding,
with an organisation of employees (eg the CFMEU),
(d) if the proposed contract arrangement or understanding
contains a provision included for the purpose (or for purposes
including the purpose) of preventing or hindering the first
person from supplying or continuing to supply such goods or
services to, or acquiring or continuing to acquire such goods
or services from, the second person.
192. The relevant legal principles are uncontroversial and were
conveniently summarised by Finn J in ACCC v CFMEU as follows
(omitting reference to the authorities):
First, for an ‘arrangement or understanding’ to be found, there must a ‘meeting of the minds’ of the parties under which one or both of them committed to a particular course of action … Secondly, a mere expectation, as a matter of fact, or a hope that something might be done or happen or that a party will act in a particular way, is not of itself sufficient to found an arrangement or understanding … Thirdly, the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligation … Fourthly, as to the requirement that the provision be included in the arrangement or understanding for the proscribed purpose or for purposes which include that purpose, the test of purpose is a subjective one and the proscribed subjective purpose is to be had by each party to the arrangement or understanding … Fifthly, the purpose of conduct for present purposes is the end sought to be accomplished by the conduct and is to be
1087
distinguished from the motive for such conduct which is the reason for seeking that end … Sixthly, the term ‘hindering’ in s 45E(3) has been given a broad construction and encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of suppling or acquiring an article or service.185
193. Like s 45D, s 45E is a penalty provision: the Act, s 76(1). Monetary
remedies lie under s 82 and s 87. Injunctive relief is available under s
80. The primary liability for a contravention of s 45E rests with the
person who has made the contract, arrangement or understanding with
the organisation of employees.
194. However, paragraphs (c) - (f) of s 76(1) of the Act create accessorial
liability in a trade union.186 In particular, a trade union that attempts to
induce (whether by threats or promises or otherwise), is knowingly
concerned, or party to, a contravention of s 45E by another person is
liable to a pecuniary penalty. The maximum penalty is $750,000: the
Act, s 76(1A)(a).
195. Where it is said that a person has attempted to induce a contravention it
is necessary to prove an intention to bring about the conduct which
constitutes the relevant contravention.187 Where it is said that a person
is knowingly concerned in or is party to a contravention it must be
shown that that person had knowledge of the essential elements
185 ACCC v CFMEU [2008] FCA 678 at [10]. 186 CEPU v ACCC (2007) 162 FCR 466, [188] at [191] per Weinberg, Bennett and Rares JJ. Section 76(2) prevents an officer of a trade union being an accessory to a contravention of s 45E. 187
Trade Practices Commission v Service Station Association Ltd (1992) 109 ALR 465 at 487-488 per Heerey J.
1088
making up the primary contravention, although that person need not
know that the conduct was a contravention.188
196. The application of the law to the evidence before the Commission
supports the following conclusions.
(a) The CFMEU, through Mr Setka and Mr Reardon, attempted
to induce Boral (the first person) to enter into an agreement or
understanding with the CFMEU which would contain a
provision the purpose of which was to hinder or prevent Boral
from supplying concrete to Grocon (the second person).
Accordingly, the CFMEU may have been liable pursuant to
s 76(1)(d) of the Act.
(b) Further:
(i) Boral’s customers (the first persons), arrived at an
agreement or understanding with the CFMEU which
contained a provision the purpose of which was to
hinder or prevent the customer from acquiring
concrete from Boral or its relevant subsidiary (the
second person). That conclusion would support a
finding that the relevant Boral customers may have
contravened s 45E.
(ii) The CFMEU may have been knowingly concerned
in, and party to, the contraventions of each of the
relevant Boral customers, thereby rendering the
188 Yorke v Lucas (1985) 158 CLR 661.
1089
CFMEU liable pursuant to s 76(1)(f) of the Act in
relation to each of the contraventions.
197. On the evidence before the Commission, at the 23 April 2013 meeting,
Mr Setka and Mr Reardon, on behalf of the CFMEU, attempted to
induce Mr Dalton and Mr Head, on behalf of Boral, to enter into an
arrangement or understanding with the CFMEU whereby Boral would
cease supplying concrete to Grocon. The inducement for Boral to
enter into the arrangement or understanding were threats that if Boral
did not agree (1) the CFMEU would continue its existing ban, (2) the
CFMEU would intensify its campaign, and (3) the CFMEU would
ensure that Boral’s market share was diminished. The sole purpose of
the proposed arrangement or understanding was to prevent Boral’s
supply of concrete to Grocon. Further, as a key supplier, Boral was
plainly a person ‘accustomed, or under an obligation’ to supply to
Grocon.
198. For the purposes of s 76(1)(d) the fact that Boral did not agree to enter
into the arrangement or understanding, and thereby did not itself
contravene s 45E, is irrelevant. The person who attempts to induce is
like the inciter at common law. Given the attempt by the State
Secretary and Assistant State Secretary to induce Boral’s entry into an
arrangement or understanding with the CFMEU, the CFMEU may
have had the relevant intention so as to render it liable under s 76(1)(d)
of the Act.
199. It is necessary now to turn to possible contraventions by Boral
customers. The reference to a ‘person who has been accustomed to
acquire’ goods or services from a second person includes:
1090
(a) a regular acquirer of such goods or services;
(b) a person who, when last acquiring goods or services, acquired
them from the second person; and
(c) a person who at any time during the immediately preceding 3
months, acquired such goods or services from the second
person: the Act, s 45E(7).
200. Boral or one of its subsidiaries was a regular supplier to each of
Meridian, Oceania, Drive Projects, BRC and Town & Country.189 In
relation to Equiset, Anglo Italian, Kosta Concreting, Squadron and S &
A Paving, the evidence supports the conclusion that they had each
acquired goods from Boral within the immediately preceding three
months190 and were hence within the definition of a person who has
been accustomed to acquire goods.
201. There is no direct evidence of an express contract, arrangement or
understanding having been made. However, an inference of such an
express arrangement may be drawn where the parties’ conduct exhibits
‘a concurrence of time, character, direction and result’.191
202. As a result of the threats and pressure from officers and shop stewards
of the CFMEU described earlier, the Boral customers agreed to the
demand or request made by the CFMEU (through its officers and shop
189 See paras 21, 25, 34, 40, 108, 117 above. 190 See paras 34, 46, 53, 57, 59 above. 191
Trade Practices Commission v David Jones (Australia) Pty Ltd (1986) 13 FCR 446 at 468 per Fisher J. See also Norcast S AR L v Bradken Limited (No 2) (2013) 219 FCR 14 at [263] per Gordon J.
1091
stewards) not to acquire goods from Boral without first obtaining the
CFMEU’s permission. That at least satisfies the requirements of ‘an
arrangement or understanding’.192 The Boral customers may not have
been happy with the arrangement or understanding reached but they
arrived at it nonetheless. The fact that the customers succumbed to the
union’s pressure and intimidation is not a reason to conclude that there
was no arrangement or understanding.193 If the CFMEU did not
threaten and pressure the Boral customers, the conclusion that there
was an arrangement or understanding contrary to s 45E is even
stronger.
203. In summary, on the evidence before the Commission, the CFMEU and
each of the Boral customers may have made an arrangement or
understanding pursuant to which the customer would not acquire goods
from Boral for use at a CFMEU-controlled site unless the CFMEU
gave its permission, and in return the CFMEU would allow and not
delay construction at the construction site. For the reasons developed
below,194 the relevant arrangement or understanding was not a series of
separate understandings between the CFMEU and the Boral customers,
but may have been a single understanding to which the CFMEU and
each of the Boral customers was a party, containing a separate
provision in relation to each Boral customer.
192 See para 192 above. 193 Gibbins v Australasian Meat Industry Employees’ Union (1986) 12 FCR 450, 470 (Smithers J). 194
See paras 219-221.
1092
204. In the case of each Boral customer, the subjective purpose of the
provision concerning the Boral customer may have been to prevent the
Boral customer acquiring goods from Boral.
205. Again, there can be little doubt that if there were contraventions of s
45E of the Act by the Boral customers as a result of entry into an
arrangement or understanding with the CFMEU, then the CFMEU
would have been a party to the contraventions. The CFMEU would
have been a party to the making of the arrangement or understanding
and would have had knowledge of the essential facts making up the
contravention.
Cartel provisions of Competition and Consumer Act 2010 (Cth)
206. Sections 44ZZRF and 44ZZRG of the Act respectively make it an
offence for a corporation to make, or give effect to, a contract,
arrangement or understanding which contains a cartel provision within
the meaning of s 44ZZRD.
207. Both offences are punishable on conviction by a fine not exceeding the
greater of: (a) $10 million, (b) three times the value of any benefits
obtained which are reasonably attributable to the commission of the
offence (where those benefits can be determined) or (c) where the
value of the benefits obtained cannot be determined, 10% of the
corporation’s annual turnover during the preceding 12 month period: ss
44ZZRF(3), 44ZZRG(3).
208. It is sufficient to establish that a contract, arrangement or
understanding contains a cartel provision if:
1093
(a) the provision has the purpose of directly or indirectly
allocating between any or all of the parties to the contract,
arrangement or understanding the persons or classes of
persons who have supplied, or are likely to supply goods or
services to any or all of the parties to the contract,
arrangement or understanding (s 44ZZRD(3)(b)(ii)); and
(b) at least two of the parties to the contract, arrangement or
understanding are, or are likely to be, in competition with
each other in relation to the supply of those goods or services
(by the supplier) (s 44ZZRD(4)(c)).
209. Sections 44ZZRF and 44ZZRG only apply to a ‘corporation’
(relevantly defined in s 4 of the Act to be a body corporate which is a
foreign, trading or financial corporations). However, the Act contains,
as Schedule 1, what is known as the ‘Schedule version of Part IV’
which contains versions of ss 44ZZRF and 44ZZRG that apply more
broadly to ‘persons’. Section 5 of the Competition Policy Reform
(Victoria) Act 1995 (Vic), read with ss 3(3) and 4 of that act and also s
17 of the Interpretation of Legislation Act 1984 (Vic), applies the
‘Schedule version of Part IV’ as a law of Victoria. The provisions
apply to and in relation to persons with a connection with Victoria:
Competition Policy Reform (Victoria) Act 1995, s 5.
210. The Schedule versions of ss 44ZZRF and 44ZZRG are relevantly
identical to ss 44ZZRF and 44ZZRG except that the reference to a
‘corporation’ is replaced with a reference to a ‘person’. A body
corporate which commits an offence against those sections is subject to
the same maximum penalty as a corporation which commits an offence
1094
against the non-Schedule versions of the sections. An offence
committed against those provisions by a person who is not a body
corporate is punishable by 10 years’ imprisonment or a maximum fine
of $340,000 or both: ss 44ZZRF(4), 44ZZRG(4).
211. Section 79 of the Act also imposes criminal liability on persons who
are accessories to a contravention of ss 44ZZRF or 44ZZRG. The
maximum penalty for a person who is not a body corporate is 10 years’
imprisonment or a maximum fine of $340,000 or both: s 79(1)(e).
Where the person is a body corporate, the penalty is the same as for a
corporation.
212. The provisions of the Criminal Code (Cth) apply to the offences under
ss 44ZZRF and 44ZZRG, and also to the offences created by the
Competition Policy Reform (Victoria) Act 1995 (see s 25 of that act).
Under the Criminal Code (Cth), Commonwealth offences consist of
physical elements and fault elements: Criminal Code (Cth), s 3.1(1).
For each physical element it is necessary to prove the existence of a
fault element.
213. Section 44ZZRF has two physical elements: (a) the making of the
contract or arrangement or the arriving at an understanding and (b) the
circumstance that the contract, arrangement or understanding contains
a cartel provision. The fault element for the first physical element is
intention: Criminal Code, s 5.6(1). The fault element for the second
physical element is knowledge or belief: s 44ZZRF(2). Thus to
establish a contravention of s 44ZZRF it must be shown that the
alleged offender intended to make the contract etc, and had knowledge
1095
or belief that the contract etc contained a provision which is a cartel
provision. A similar analysis applies in relation to s 44ZZRG.
214. Sections 44ZZRJ and 44ZZRK of the Act create pecuniary penalty
provisions which mirror ss 44ZRF and 44ZRG respectively. There are
also Schedule versions of those sections which apply to persons.
215. The ACCC may apply under s 77 of the Act for pecuniary penalties
under s 76. The maximum penalty for contravention of those sections
by a body corporate is the same as for a corporation under ss 44ZZRF
or 44ZZRG: s 76(1A)(aa). The maximum penalty for a contravention
by a person who is not a body corporate is $500,000: s 76(1B)(b).
216. To establish a contravention of the pecuniary penalty cartel provisions
in the present case three elements would need to be established:
(a) The existence of a contract, arrangement or understanding
between the CFMEU and Boral customers;
(b) The contract, arrangement or understanding must contain a
provision which has a purpose of directly or indirectly
allocating between the Boral customers the class of CFMEU
approved concrete suppliers; and
(c) Two or more parties to the contract, arrangement or
understanding must be in competition.
217. In addition, to establish criminal liability under the Criminal Code
(Cth), it must be shown that the alleged contravener intended to make
1096
the contract, arrangement or understanding and must have known or
believed that the contract, arrangement or understanding contained a
cartel provision.
218. There is little law concerning the operation of the cartel provisions. In
Norcast S AR L v Bradken Ltd,195 Gordon J stated that the first three of
Finn J’s propositions quoted above196 applied also to the requirement
of an arrangement or understanding under ss 44ZZRJ and 44ZZRK. In
particular, her Honour stated that for an arrangement or understanding
to exist it was necessary for there to be ‘evidence of a consensus or
meeting of the minds of the parties under which one party or both of
them must assume an obligation or give an assurance or undertaking
that it will act in a certain way which may not be enforceable at
law’.197
219. Her Honour did not consider the question whether in establishing the
necessary consensus in the case of a multi-party arrangement or
understanding it is necessary that all of the parties to the arrangement
or understanding communicated with each other or whether it is
sufficient to establish that (a) each party communicated with at least
one other party to the arrangement or understanding and (b) through
those communications each of the parties arrived at a common
understanding (ie a consensus). In the context of provisions designed
to stop cartel activity, there is no reason why it should be necessary to
establish communication between all of the parties to the cartel,
provided the necessary consensus can be established. This was
195 (2013) 219 FCR 14. 196 See para 192. 197
Norcast S AR Lv Bradken Ltd (2013) 219 FCR 14 at [263].
1097
accepted by Gray J in Australasian Meat Industry Employees Union v
Meat & Allied Trades Federation of Australia198 in the context of s
45E:
It is clearly possible for an arrangement or understanding to be constituted when the only communication between the various parties is via a single intermediary. If that intermediary communicates to various persons an intention that each of them should act in a particular way with respect to a particular transaction or situation, and each thereafter acts in that particular way in the hope or belief that the other persons will act similarly, an arrangement or understanding will exist. It is necessary to be careful, however, in distinguishing that situation from one in which the intermediary enters into separate arrangements or understandings which each of the persons.
220. In the present case, on the evidence before the Commission, each of
the Boral customers may have come to a common understanding with
the CFMEU that they would cease to acquire Boral’s products.
Although there is no evidence of communication between the
customers, the whole concept of a ban depends on collective action.
The natural inference to be drawn from the circumstances is that each
of the Boral customers may have come to an understanding with the
CFMEU in the belief that their competitors had a similar understanding
with the CFMEU. In that context this is sufficient to establish that
there was an understanding between the CFMEU and the Boral
customers by which each customer undertook not to acquire goods
from Boral on CFMEU-controlled construction sites.
221. The understanding identified in the previous paragraph, by seeking to
exclude non-CFMEU approved concrete suppliers (eg Boral) from the
market, had the purpose of allocating between the Boral customers the
class of CFMEU approved concrete suppliers.
198 (1991) 32 FCR 318 at 330.
1098
222. There is a question whether the required purpose must be ‘subjective’
or ‘objective’. Dicta in relation to the now-repealed s 45A, which
concerned price-fixing arrangements, and therefore has some similarity
with the cartel provisions, suggested that the required purpose of price-fixing in relation to s 45A was a subjective one.199 However,
s 44ZZRD(3) is not directed at price-fixing and the words ‘has the
purpose of directly or indirectly’ suggest that an objective purpose is
sufficient. Further, having regard to the mischief to which the cartel
provisions are directed there is no reason why the requirement of
purpose should be construed as limited to ‘subjective purpose’.
223. The Boral customers are in competition for the supply of concrete
laying services and would appear to be in competition for the
acquisition of concrete from concrete suppliers, such as Boral.
224. In relation to the mental elements required under the Criminal Code,
there is insufficient evidence before the Commission to determine
whether the Boral customers had a sufficient intention to enter into the
relevant understanding with the CFMEU. However, the evidence of
the 23 April 2013 meeting supports a conclusion that the CFMEU had
the relevant intention and knowledge to render it criminally liable
under s 44ZZRF or s 44ZRG of the Competition Policy Reform
(Victoria) Act 1995 (Vic).
225. Accordingly, the CFMEU (assuming that it is a body corporate which
is not a corporation) may have contravened s 44ZZRF or s 44ZZRG of
the Competition Policy Reform (Victoria) Act 1995 (Vic).
199 ACCC v Australian Medical Association Western Australian Branch Inc (2003) 199 ALR 423 at [243]-[247].
1099
226. It is recommended that this Interim Report be referred to the
Commonwealth Director of Public Prosecutions in order that
consideration may be given to whether the CFMEU should be charged
with and prosecuted for cartel conduct contrary to ss 44ZZRF and
44ZZRG of the Competition Policy Reform (Victoria) Act 1995 (Vic).
Blackmail: Crimes Act 1958 (Vic), section 87
227. Section 87 of the Crimes Act 1958 (Vic) makes it an offence for a
person to blackmail another person. The maximum penalty is 15
years’ imprisonment. Section 87 relevantly provides:
(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is proper means of reinforcing the demand.
(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
228. There are relevantly four elements to the offence. There must be (1) a
demand (2) made with intent to cause loss to another (3) with menaces
(4) which is unwarranted.
229. Section 323 of the Crimes Act 1958 (Vic) provides that a person who
aids, abets, counsels or procures the commission of an indictable
offence may be tried or indicted and punished as a principal offender.
1100
230. Mr Setka, by making a demand with menaces at the 23 April 2013
meeting with the intention of causing loss to Grocon, may have
committed the offence of blackmail. In addition, Mr Reardon either
may have committed the offence of blackmail, or may be liable as an
accessory pursuant to s 323 of the Crimes Act 1958 (Vic).
231. On Mr Head’s account of the 23 April 2013 meeting, Mr Reardon said
in relation to the CFMEU’s targeting of Boral trucks ‘this is easy. Just
stop supplying Grocon for two weeks’.200 His evidence was that Mr
Setka made a similar statement: ‘Just stop supplying Grocon for two
weeks and this will go away’.201 Mr Dalton’s evidence of what Mr
Setka said was similar: ‘All you [Boral] have to do is stop supply to
Grocon for a couple of weeks’.202
232. This evidence supports the conclusion that an express demand was
made by Mr Setka and Mr Reardon for Boral to stop supply of concrete
to Grocon. However, even if it were concluded that there was no
express demand, it may be that an implicit demand was being made to
Mr Dalton and Mr Head for Boral to cease supply to Grocon. As a
matter of law it is well established that for the purposes of the section a
demand need not be express, but can be implicit from the
circumstances.203
200 Peter Head, witness statement, 9/7/14, para 41. 201 Peter Head, witness statement, 9/7/14, para 43. 202
Paul Dalton, witness statement, 9/7/14, para 40. 203 R v Collister (1955) 39 Cr App R 100 at 105 per Hilbery J; R v Clear [1968] 1 QB 670 (CA) at 675; R v Lambert [2010] 1 Cr App R 21 (CA) at [8].
1101
233. On the evidence before the Commission, the demand by Mr Setka for
Boral to cease supply to Grocon was made with an intention to cause
loss to Grocon. Mr Head remembered the words: ‘the CFMEU is at
war with Grocon and that if you want to starve the enemy you cut off
their supply’.204 Mr Dalton remembered the words: ‘We’re at war
with Grocon and in a war you cut the supply lines. Boral Concrete is a
supply line to Grocon’.205 That is consistent with the other evidence
concerning the ongoing dispute between the CFMEU and Grocon.206
The inference is open that he may have had the same intention as his
superior at the CFMEU.
234. The word ‘menaces’ is to be ‘liberally construed and not as limited to
threats of violence but as including threats of any action detrimental to
or unpleasant to the person addressed. It may also include a warning
that in certain events such action is intended.’207 Menaces may be
established by a threat to property208 or to take action adversely
affecting a company’s share price.209
235. The evidence from Mr Dalton and Mr Head210 supports a conclusion
that Mr Setka’s demand was coupled with three threats: (1) a threat
that the CFMEU black ban of Boral would continue (2) a threat that
204 Peter Head, witness statement, 9/7/14, para 40. 205 Paul Dalton, witness statement, 9/7/14, para 35. 206
See paras 11-12 above. 207 Thorne v Motor Trade Association [1937] AC 797 at 817 per Lord Wright. See Jessen v R [1997] 2 Qd R 213 at 219 per Thomas J, White J agreeing. 208
Director of Public Prosecutions v Kuo (1999) 49 NSWLR 226; DPP v Curby [2000] NSWSC 745 at [5]. 209 R v Boyle [1914] 3 KB 339 at 343. 210
See Paul Dalton, witness statement, 9/7/14, paras 35-39, 42-43; Peter Head, witness statement, 9/7/14, paras 42, 44-45.
1102
there would be intensification of the CFMEU’s campaign against
Boral, and (3) a threat that the CFMEU would ensure that Boral’s
market share was diminished. Each of these threats may have
constituted menace within the meaning of the section.
236. As provided by the section, every demand with menaces is
unwarranted unless the person making the demand ‘does so in the
belief -- (a) that he has reasonable grounds for making the demand;
and (b) that the use of the menaces is a proper means of reinforcing the
demand.’ The accused has the evidentiary onus of raising one or both
of these matters. Once that onus is discharged, the prosecution must
negative at least one of the requirements.
237. It is not clear on the evidence how Mr Setka could have believed that
he had reasonable grounds for making the demand to Boral. It may be
Mr Setka had concerns about the safety of workers at the Grocon site
and believed that demanding Boral cease supply to Grocon was a
reasonable way of ensuring that Grocon addressed those concerns.
However, the connection between the two is remote.
238. In any event, on the available evidence, Mr Setka could not have
believed the menaces (ie the threats made) were a ‘proper means of
reinforcing the demand.’ Proper means must, at a minimum, be
lawful.211
239. As at 23 April 2013, the Supreme Court of Victoria had issued
injunctions restraining the CFMEU from any interference with the
supply or possible supply of goods or services by Boral at any
211 R v Harvey (1981) 72 Cr App R 139 at 142.
1103
construction site in Victoria. Plainly then, Mr Setka’s threats to
continue his black ban and to intensify it may have been unlawful. The
strong inference from the evidence is that Mr Setka may have been
aware of the injunctions, and therefore aware of the illegality of his
threats:
(a) Mr Setka referred to Boral’s lawyers in proceedings.212 Mr
Reardon referred to Mr Setka not giving ‘a stuff’ about ‘the
legal stuff’.213 Those proceedings could only have been the
proceedings in which Boral was seeking an injunction;
(b) As State Secretary of the CFMEU he may have been aware of
those orders which had been served on the CFMEU.214
240. Further, it is not possible to see how the threat to ensure the Boral’s
market share was diminished may have been a proper means of
reinforcing the demand. The evidence supports a conclusion that Mr
Setka believed his threats to be unlawful, or at the least not ‘proper
means of reinforcing the demand.’
241. Mr Reardon also made a demand. It was made with the same intention
as Mr Setka ie to cause loss to Grocon. He threatened that the CFMEU
‘will target Boral trucks’.215 The analysis above in relation to Mr
212 Paul Dalton, witness statement, 9/7/14, para 29. 213 Peter Head, witness statement, 9/7/14, para 38. 214
Before Derham AsJ, the CFMEU conceded the effective service of the Supreme Court’s orders: see Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429 at [15]. See also Boral MFI-2, Tabs 4, Plaintiff’s Outline of Submissions dated 23 December 2013, [58]-[59] and Defendant’s Outline of Submissions in Reply dated 23 January 2014, [41]. 215
Peter Head, witness statement, 9/7/14, para 41.
1104
Setka would support a possible finding of blackmail by Mr Reardon
also. In the alternative, Mr Reardon may have aided and abetted Mr
Setka: he was present at the commission of the offence and may have
intentionally participated and assisted Mr Setka in his threats.
Accordingly, if not himself separately liable for blackmail he may be
liable as an accessory under s 323 of the Crimes Act 1958 (Vic). It is
recommended that this Interim Report be referred to the Director of
Public Prosecutions of Victoria for consideration of whether Mr Setka
and Mr Reardon should be prosecuted for those offences.
Possible contempts of court
242. The evidence concerning the conduct of the CFMEU shop stewards in
April 2013 at the Anglo Italian project site at Radnor Drive,
Derrimut216 and at the Kosta Concreting project site at Elizabeth Street,
Melbourne217 and the CFMEU’s later conduct in 2014218 suggest that
there may have been a continuing and flagrant contempt of
Hollingworth J’s orders by an organisation which treats itself as above
the law. Plainly court orders seem to count for little or nothing so far
as the CFMEU is concerned.
243. In his letter to the Commission, Mr Kane made this statement:
Mr Setka has been quoted acknowledging openly that the CFMEU’s tactics involve breaking the law. Following the finding against the CFMEU for breaching court orders in relation to the blockage of the Myer Emporium site in 2013, Setka is reported to have said “It’s not the first time or the last time a union is found guilty of contempt”, “We don’t set
216 See para 51 above. 217 See paras 55-56 above. 218
See paras 103-120 above.
1105
out deliberately to break the law, but unfortunately sometimes it’s going to happen … Our members have been seasoned to expect that. They want us to maintain a militant union”.219
244. The CFMEU’s approach raises important questions about the
enforceability of court orders.
E - RECOMMENDATIONS FOR REFORM
245. Given the extension of the Commission’s final reporting deadline, it is
premature to make recommendations for reform.
246. However, the CFMEU’s conduct in relation to Boral suggests that
there may be a number of deficiencies with the existing legal and
regulatory framework in relation to secondary boycotts, the
enforcement of court orders, the regulation of trade unions generally
and the regulation of, and the duties owed by, trade union officers.
247. In particular, the conduct suggests the existence of the following
possible problems:
(a) The ineffectiveness of the current secondary boycott
provisions in ss 45D and 45E of the Competition and
Consumer Act 2010 (Cth) to deter illegal secondary boycotts
by trade unions.
219 Mike Kane, Letter to Royal Commission, 9/7/14, p 7.
1106
(b) The absence of specific provisions making it unlawful for the
competitors of the target of a secondary boycott knowingly to
supply a product or service in substitute for a supply by the
target.
(c) An inability or unwillingness by the regulatory authorities to
investigate and prosecute breaches of the secondary boycott
provisions by trade unions speedily. There may be a number
of root causes for this problem: difficulties in obtaining
documentary evidence, lack of co-operation of witnesses who
may fear repercussions from giving evidence, the potential
overlap between the roles of a number of regulators and
difficulties in ensuring compliance with court orders made in
relation to secondary boycott conduct.220
(d) The absence of any speedy and effective method by which
injunctions granted by a court restraining a trade union from
engaging in an illegal secondary boycott can be enforced.
The Byzantine complexity of the law of contempt, and its
ineffectiveness to deter secondary boycott conduct by a trade
union, is amply demonstrated by the contempt proceedings
commenced by Grocon and Boral in the Victorian Supreme
Court.221
220 See the public submission by the ACCC, Supplementary submission to the Competition Policy Review, 15 August 2014 (http://competitionpolicyreview.gov.au/files/2014/08/ACCC_3.pdf) at pp 6-7. 221
See, eg, CFMEU v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261.
1107
(e) The absence of a single statutory regulator dedicated to the
regulation of trade unions with sufficient legal power to
investigate and prosecute breaches of the secondary boycott
provisions.
(f) The absence of appropriate legal duties owed by the officers
of trade unions to their members, and the absence of
appropriate mechanisms by which such officers can be held
accountable to their members.
248. It is also necessary to consider possible improvements in relation to the
administration of the law by both regulators and courts.
249. The course of the Supreme Court Proceeding222 demonstrates rather
extraordinary delay after the initial orders made by Hollingworth J in
February to April 2013. Both the parties and the Court have a duty to
seek to facilitate the just, efficient, timely and cost-effective resolution
of the issues in dispute: Civil Procedure Act 2010 (Vic), ss 7, 10.
Having regard to the conduct alleged by Boral, the alleged contempts
by the CFMEU, and the amount of damage that may have been caused
both to Boral and the wider economy, the proceedings ought to have
been resolved very speedily.
250. The CFMEU, which Boral alleges is in contempt of court, have
criticised Boral for not doing more than instituting one contempt
application to enforce the injunctions against the CFMEU, and for
prosecuting that slowly.223 The CFMEU also submitted that Boral had
222 See paras 76-71, 91-97 above. 223 CFMEU submissions, 14/11/14, Pt 8.2, paras 20-26.
1108
not displayed any energy in seeking expedition of the non-contempt
aspect of the Supreme Court Proceeding.224 There is a little force in
this criticism. If a plaintiff claims to be the victim of a black ban, it is
incumbent on that plaintiff to react as ruthlessly and as speedily as
possible. But these paradoxical CFMEU submissions do not assist the
CFMEU. For the criticisms which the CFMEU makes of Boral can be
put a hundred times more strongly against the CFMEU.
251. The CFMEU has in numerous respects engaged in conduct which has
had the effect of delaying the proceedings. In relation to the contempt
application, it opposed the joinder of the Attorney-General and sought
leave to appeal against Digby J’s order joining the Attorney-General as
a party. It sought leave to appeal against Digby J’s order ordering
discovery of documents which could have been obtained by subpoena.
Both applications for leave were unsurprisingly refused. In relation to
the main part of the proceeding, the CFMEU did not appear until 9
September 2013, more than 6 months after it was on notice that
proceedings had been commenced. Even then, it did not seek to set
aside the default judgment entered against it on 20 May 2013 until 8
November 2013. The fear of having to pay money by way of damages
seemed a sharper stimulus to the CFMEU than the fear of punishment
for acting in contempt of Hollingworth J’s three injunctions and other
orders. Mr Kane called the CFMEU’s failure to appear in the
proceedings a contempt of court.225 Strictly speaking it was not a
contempt of court, but it is scarcely the way an organisation of the
224 CFMEU submissions, 14/11/14, Pt 8.2, para 28. 225 Michael Joseph Kane, 9/7/14, T:58.41-59.1.
1109
CFMEU’s size, power and status should behave. It is more typical of
recalcitrant debtors of the least meritorious kind.
252. The CFMEU’s application by summons to have the default judgment
set aside was filed as long as two months after it had filed its notice of
appearance. On 27 November 2013, instead of dealing with the
application instantly, Derham AsJ directed the filing of written
submissions and fixed 30 January 2014 as the date for the hearing of
the CFMEU’s summons.
253. The summons relied on three grounds.226 The second ground was:
‘No affidavit proving the alleged default was filed, in breach of Rule
21.02(2)’. This was a captious point, since the Supreme Court of
Victoria could see for itself from its own file that no defence had been
filed. It was a ground which proved too ridiculous even for the
CFMEU, since that second ground was not pressed in its Outline of
Submissions dated 13 December 2013.
254. The first ground, which was pressed, was that the CFMEU ‘was not
required to file a defence because it had not filed its appearance’. As
Derham AsJ said in his judgment of 10 September 2014, that point
‘involves the proposition that compliance with an order of the Court is
optional. That is to say, the order need only be complied with if the
defendant chooses to enter an appearance’.227 The learned Associate
Justice correctly rejected that absurd proposition. But it is a
proposition that is entirely characteristic of the whole of the CFMEU’s
226 Boral MFI-1, Vol 1, tab 26. 227 Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429 at [31].
1110
attitude to the substantive law and to the legal system which is
supposed to enforce it. The CFMEU appears to treat compliance with
both rules of law and court orders as optional.
255. The third ground on which the CFMEU relied was that Boral’s
amended statement of claim did not disclose a cause of action. In part
that ground contended that even if there were available causes of
action, they had been poorly pleaded. If that contention were sound,
the deficiencies were curable, and speedily. But the ground also
contended that in Australian law there is no tort of interference with
business by unlawful means and no variant of it known as the tort of
intimidation. That was an argument that a tort recognised by numerous
courts in Australia, by the House of Lords, by leading academic
writers, with a history tracing back to the early 17th century, should be
held not to exist. The argument rested on the illogical proposition that
because Australian courts have not yet accepted the broader tort of
interference with trade by unlawful means which has been recognised
in England, of which it has been said that intimidation is a species, the
Australian cases actually recognising the tort of intimidation must not
be followed. Why the tort should not exist was not explained.
Obviously it can operate adversely to union interests.
256. With respect, the CFMEU’s submission ought not to have been put to
the learned Associate Justice, other than formally. That is because
there are ample indications in the High Court and other appellate
courts, to which the learned Associate Justice referred, that the tort
exists. The judges who have held that view include such distinguished
lawyers as Mason CJ and Jacobs J. With respect, it would not be right
for any court below the High Court of Australia to overturn the
1111
assumption almost all Australian lawyers have operated on since Rookes
v Barnard was decided in 1964228 that there is a tort of intimidation.
257. Apart from the delays by the CFMEU, the time taken by Derham AsJ to
deliver judgment refusing to set the default judgment aside was more than
seven months.229 There is doubtless some good reason why judgment was
not delivered on the day of the CFMEU’s application or shortly thereafter.
However, in the ordinary course it might be expected that an application to
set aside default judgment would be dealt with speedily. In particular, it
ought to have been dealt with as soon as it was made. The problem with the
orders, then, is not only that it took so long for them to be made, but that it
took so long for the question to be considered by the court. When a major
black ban is proceeding unimpeded by the grant of injunctions, and the
defendant fails to enter an appearance for over six months, an application to
set aside a default judgment should be dealt with very differently. The
CFMEU had formulated three reasons why the default judgment should be
set aside. One was abandoned even before the hearing before Derham AsJ.
Another was abandoned on 29 October 2014.230 The third - that the tort of
intimidation is not known to Australian law - is, with respect, a very
ambitious point. The defendant had apparently not complied with at least
the court’s procedural orders. If it had a case for the default judgment to be
set aside, it was a case which should have been dealt with brevi manu - on
the spot, no
228 [1964] AC 1129. 229 Boral MFI-1, Tab 37. 230
Boral MFI-4, tab 2 (Letter from Slater & Gordon to Herbert Smith Freehills, 29 October 2014).
1112
timetables, no written submissions, no arcane day-long
argument, and no reservation. There should not have been the
slightest tardiness in either speedily affirming the status quo of
the default judgment or, if the CFMEU could make out its
extraordinarily unconvincing case, speedily setting the default
judgment aside.
258. More recently the pace has quickened, over the opposition of the
CFMEU. At a directions hearing on 16 October 2014, the CFMEU
submitted that no steps should be taken in relation to the assessment
of damages until an appeal to a single judge against the Associate
Justice’s refusal to set aside the default judgment as concluded. The
Associate Justice did not accede to that submission. He made
directions about particulars being given by 5 December 2014 and
subpoenas being issued by 31 October 2014. Further, Forrest J, who
had carriage of the CFMEU appeal against Derham AsJ’s
unsurprising refusal to set aside the default judgment, has expressed
concern about the delays. He indicated on 23 October 2014, over
the CFMEU’s opposition, that there would be a hearing in
November and that the whole process in the Supreme Court
(including any appeal to the Court of Appeal) would be completed
by Easter 2015. The matter was listed for hearing on 24 November
2014 before Bell J. Then on 3 November 2014, Boral moved for an
order that the appeal to a single judge be reserved for the
consideration of the Court of Appeal. However, the CFMEU
opposed that order, in the course of lengthy argument on 6
November 2014. Despite that, Bell J made the order on 7 November
2014. But on 28 November 2014 the CFMEU indicated that it
would oppose the grant of leave by the Court of Appeal for it to
1113
was no compelling reason, such as urgency, to bypass the Trial
Division. Does not the passing of nearly two years generate a little
urgency?
259. In relation to the activities of Fair Work Building and Construction,
there is little material before the Commission apart from that
summarised above231 to explain what has been occurring. It is worth
noting that nearly two years have passed since the black ban began.
However, it is clear that public regulators are likely to have grave
difficulties in obtaining evidence where witnesses are reluctant to
speak against parties to illegal conduct in view of the risk of retaliation.
260. A legal system which does not provide swift protection against the type
of conduct which Boral alleges it has suffered at the hands of the
CFMEU, and which does not have a mechanism for the swift
enforcement of court orders, is fundamentally defective. The defects
are so great as to make it easy for those whose goal is to defy the rule
of law. The defects reveal a huge problem for the Australian state and
its numerous federal, State and Territory emanations. The defying of
the Victorian Supreme Court’s injunctions for nearly two years, and
the procedural history outlined above, will make the Australian legal
system an international laughing stock. A new form of ‘sovereign risk’
is emerging - for investors will not invest in countries where their legal
rights receive no protection in practice. At least so far as the courts are
concerned, it may be appropriate for consideration to be given to
procedures which ensure the swift determination of contempt
231 See paras 100-101.
1114
applications, complemented where necessary by appropriate court rules
and legislation.
1115
1116
CHAPTER 8.3
CBUS LEAK TO THE CFMEU
Subject Paragraph
A - OVERVIEW 1
B - RELEVANT FACTS 5
The business of Cbus 5
Relevant Cbus staff 8
Lis-Con 19
The Gaske leak of June 2013 23
Cbus debt collection processes in June 2013 27
CFMEU ‘war’ on Lis-Con 48
Instructions from Mr Parker to Mr Fitzpatrick 52
The McWhinney table 55
Mr Parker seeks and obtains the Zanatta spreadsheets: general 58
18 July 2013 59
22 July 2013 69
1117
Subject Paragraph
24 and 25 July 2013 78
26 July 2013 88
Conversations between Mr Parker and Mr Fitzpatrick 106
29 July 2013 115
Mr Parker’s receipt and use of the documents 124
The Gaske leak of 30 July 2013 131
Complaint from Lis-Con and the reactions to that complaint 133
False evidence given by witnesses to the Commission 147
The fictional position adopted up to the mid-afternoon of 3 October 2014 150
Ms Zanatta’s evidence on 3 October 2014 160
Disposing of what little remains of the fictional account 167
Ms Butera’s false evidence 182
Ms Zanatta’s false evidence 187
Mr Parker’s false evidence 189
A few further observations on the false evidence 204
Mr Roberts 207
KPMG findings of widespread disclosures 240
Mr Atkin 244
1118
Subject Paragraph
C - CONCLUSIONS 245
Privacy Act 1988 (Cth) breaches 248
Cbus trust deed 261
Contracts with members 264
Cbus privacy policy 265
Privacy issues: analysis 267
Breach of trust and contract and inducement by Mr Parker 286
Possible breaches of the law and of CFMEU’s professional standards 288
Cultural problems within Cbus 290
D - RETURNING THE ZANATTA SPREADSHEETS
312
ANNEXURE A: EXAMPLES OF FALSE EVIDENCE GIVEN BY MS BUTERA
ANNEXURE B: EXAMPLES OF THE FALSE EVIDENCE GIVEN BY MS ZANATTA
A - OVERVIEW
1. This chapter deals with the wrongful disclosure by Cbus of the
private information of its members to Mr Brian Parker, the
Secretary of the New South Wales Branch of the Construction
1119
and General Division of the CFMEU (NSW Branch) in July
2013.
2. The Cbus employees involved in the matter were senior ones -
Ms Lisa Zanatta (Senior Adviser - Member Relationships,
Workplace Distribution) and Ms Maria Butera (Executive
Manager). The principal CFMEU officer in question is Mr
Parker.
3. The factual issues in this Chapter, unlike many Chapters, were
highly controversial. However, the submissions of counsel
assisting were, despite the attacks of the CFMEU and various of
its officers, Mr Parker, Cbus and (to some extent) Ms Butera,
substantially correct. The findings set out below are based on
their submissions.
4. Ms Zanatta has publicly admitted giving evidence to the
Commission, which she knew to be false at the time she gave it.
Appropriate recommendations will be made in respect of this
aspect of Ms Zanatta’s evidence in due course. In addition, it
appears likely at this stage that recommendations may be made in
relation to others, such as Ms Butera. While these are important
questions, it is possible that the Commission will receive in the
future further evidence concerning or in relation to the matters
the subject of this Chapter. These questions should not be
resolved until all relevant evidence has been received.
Accordingly, the Commission will not in this Interim Report
make any recommendations concerning whether criminal or other
breaches of the law may have occurred. Resolution of these
1120
issues, the making of any recommendations and the terms of
those recommendations will be deferred to a future report. For
present purposes, the conclusions are as follows.
(a) Cbus is a superannuation fund over which the CFMEU
exercises considerable influence. CFMEU officers are
on the board of United Super Pty Ltd, the trustee for
Cbus. Some Cbus employees once worked for or came
from a CFMEU background. This has led to serious
cultural problems within Cbus, under which the interests
of the CFMEU are put before those of Cbus and its
members.
(b) In mid-2013, the CFMEU was engaged in an aggressive
national campaign against Lis-Con Concrete
Constructions Pty Ltd and Lis-Con Services Pty Ltd
(together, Lis-Con). One of the elements in the dispute
between Lis-Con and the CFMEU is that the latter
considered that the former was persistently late in
making superannuation payments to Cbus. They
disagreed on when the payments should have been
made. It should be stressed at the outset that punctual
payments by employers of superannuation contributions
is essential. The CFMEU is entirely right in insisting on
this. But that insistence cannot extend to the use of
illegal means.
(c) Mr Parker knew that Cbus held the personal contact
details of the Lis-Con employees. As part of that
1121
campaign, Mr Parker wished to obtain the personal
contact details of Lis-Con employees so that union staff
could contact those employees and encourage them to
harass Lis-Con over unpaid entitlements. He wanted
action of this kind to be taken because of the national
campaign that was then underway. In his view,
upsetting Lis-Con employees would have the maximum
adverse effect on Lis-Con. In the ordinary course, the
matter of delay in payment was for Cbus to deal with
through the usual debt recovery processes it had in
place.
(d) Mr Parker endeavoured to obtain the personal contact
details of the Lis-Con employees with the assistance of
two senior Cbus employees, Ms Zanatta and Ms Butera.
He did so knowing that he was asking them to act
improperly.
(e) Ms Zanatta and Ms Butera complied with Mr Parker’s
request. They embarked upon a covert exercise to obtain
the information and deliver it to Mr Parker, knowing
that what they were doing was improper. The covert
exercise involved, amongst other things, Ms Zanatta
flying from Melbourne to Sydney on 29 July 2013 for
the sole purpose of hand delivering the relevant
documents, known as the ‘Zanatta spreadsheets’ to the
CFMEU.
1122
(f) Once Mr Parker had the information, he provided it to
Mr Fitzpatrick, a CFMEU organiser, and instructed him
to use that information as planned. This involved Mr
Fitzpatrick ringing a number of Lis-Con employees on
30 July 2013. He pretended to be a Cbus representative,
and informed those employees that their employer had
not paid their superannuation entitlements on time.
(g) Mr Fitzpatrick admitted his part in these events to this
Commission at an early stage. However, Ms Zanatta,
Ms Butera and Mr Parker each gave false evidence to
this Commission about their involvement. Ms Zanatta
went so far as to create an entirely fictitious account of
why she came to Sydney on 29 July 2013 and what she
did while she was there. When those lies were exposed,
she admitted she had committed perjury in order to
protect Mr Parker and others. By giving this false
evidence, Ms Zanatta, Ms Butera and Mr Parker have
put the Commission and third parties to great
inconvenience and expense.
B - RELEVANT FACTS
The business of Cbus
5. Cbus provides superannuation services to construction, building
and allied industry workers and retirees, their families and
employers. The trustee of the Cbus superannuation fund is
United Super Pty Ltd. As at 31 March 2014, it managed
1123
approximately $26 billion of member funds. It publicises its
activities very widely.
6. Superpartners Pty Ltd is retained by Cbus to act as the
administrator of its member and employer records.
7. Cbus has close links to the trade union movement. Its board of
directors includes representatives from a number of trade unions,
particularly the CFMEU. Currently, three CFMEU officials sit
on the Cbus board: Ms Rita Mallia, Mr Frank O’Grady and Mr
David Noonan.
Relevant Cbus staff
8. Mr David Atkin is the chief executive officer of Cbus, and was so
at the relevant time.
9. In July 2013, Ms Butera held the position of Executive Manager,
Workplace Distribution with Cbus. She holds a Bachelor of
Commerce degree, and commenced working for Cbus 17 years
ago.1 Before that she had been a development executive with the
Construction Industry Development Agency between 1991 and
1995. Between 1995 and 1997, she was executive director of the
Australian Construction Industry Council. Between 2004 and
2012, she sat on the board of the Royal Women’s Hospital.2
1 Maria Butera, 7/7/14, T:67.32ff. 2 Submissions in Reply on behalf of Maria Butera, 21/11/14, para 7.
1124
10. Ms Butera reported directly to Mr Atkin, and therefore sat at the
second highest level of management in Cbus.3 Much of her time
was spent working with the Building Industry Group in step with
Mr Atkin.4
11. Ms Butera emphasised many times in her evidence that she did
not have the role of dealing with operational matters, including
dealing with employer arrears, on a day to day basis.5 But she
did adopt that role in late July 2013 in relation to Mr Parker.
12. Ms Butera is an accountant by training and a senior manager of a
financial services provider by profession. Members of the
CFMEU do not commonly have this profile. Those callings have
little to do with construction, forestry, mining and energy. Yet
Ms Butera has been a member of the CFMEU since starting
employment with Cbus. She joined the union as part of a ‘culture
of collaboration’ that exists within Cbus. She wanted to show the
CFMEU that she wished to work closely with it.6 Whether these
explanations are displaced or supplemented by another
consideration - the promotion of sponsorship by Cbus of the
CFMEU - is a topic which has been proposed for future
exploration by the Commission.7
3 Maria Butera, 23/10/14, T:934.11ff. 4 Submissions in Reply on behalf of Maria Butera, 21/11/14, para 6(c). 5
Maria Butera, 7/7/14, T:72.4ff, 73.3-4. 6 Maria Butera, 23/10/14, T:970-973. 7
O’Neill/Lis-Con submissions, 14/11/14, para 10.
1125
13. In July 2013, Ms Zanatta held the position of Senior Adviser -
Member Relationships, Workplace Distribution within Cbus.8 In
that role she was responsible for overseeing the day to day
activities of the National Coordinator Team.9
14. She reported to Ms Cath Noye (General Manager, Key
Relationships), who in turn reported to Ms Butera. This put Ms
Zanatta at the fourth highest management tier within Cbus.10 It
was a senior advisory position.11
15. Ms Zanatta has at all times been a member of the CFMEU,12
even though her profile, as a manager working in the financial
services sector, is unusual for the CFMEU.
16. Ms Zanatta began her employment at Cbus in 1998, and as such,
by mid-2013, had been with the company for 15 years. She was
a highly experienced Cbus employee. She, therefore, had an
intimate knowledge of its workings and systems.
17. Initially, Ms Zanatta was employed by Cbus as a member co-ordinator, providing services and advice to employers and
members,13 and interacting with the CFMEU regularly. Ms
Zanatta was more than capable of handling an enquiry from a
8 Lisa Zanatta, 7/7/14, T:17.5-6. 9 Lisa Zanatta, 7/7/14, T:18.4-6. 10
Lisa Zanatta, 7/7/14, T:18.9ff. 11 Lisa Zanatta, 7/7/14, T:19.6-8. 12
Lisa Zanatta, 7/7/14, T:17.26-30. 13 Lisa Zanatta, 7/7/14, T:17-32-18.6.
1126
union in relation to arrears. Indeed, it was her ‘bread and
butter’.14
18. Ms Zanatta’s employment with Cbus has now been terminated as
a result of the role she played in the matters described below.
Lis-Con
19. The Lis-Con companies are sub-contractors in the construction
industry and operate across Australia, with a focus on formwork,
concreting and steel fixing services.
20. On average, Lis-Con Concrete Constructions Pty Ltd employs
approximately 40 workers. Lis-Con Services Pty Ltd employs
approximately 300 workers. Most Lis-Con employees are not
members of the CFMEU.
21. Mr Eoin O’Neill is the construction manager, tender manager and
an authorised spokesperson for the Lis-Con companies.
22. Cbus was the default superannuation fund for Lis-Con from
about 2003 to 2013.15 As a result of the matters the subject of this
chapter of the submissions, Lis-Con workers voted to abolish
Cbus as its default superannuation fund.16
14 Maria Butera, 23/10/14, T:936.8-14. 15 Eoin O’Neill, witness statement, 15/7/14, para 41. 16
Eoin O’Neill, 15/7/2014, T:58.6- 9.
1127
The Gaske leak of June 2013
23. As at June 2013, issues had arisen in relation to the extent to
which Lis-Con was paying workers’ superannuation entitlements
on time. Officers of the CFMEU had taken an interest in that
matter.
24. To this end, on 18 June 2013, Mr Steve Gaske, who was both a
Cbus employee and the honorary President of the Queensland
Branch of the Construction and General Division of the CFMEU,
sought and obtained from Superpartners certain information in
relation to the extent of the arrears for the two Lis-Con
companies.17
25. The information provided came in two forms. First, there were
two emails from Ann-Marie Hughes from Superpartners setting
out the aggregated arrears position of each particular Lis-Con
company; that is, the total amounts owed by the company for
particular months. Secondly, attached to each email was a
schedule which identified the names of the Lis-Con employees,
their Cbus membership number, their date of birth, and
superannuation entitlements for each Lis-Con company. No
personal contact details in the nature of email or home addresses
or telephone numbers were disclosed.
26. Mr Gaske passed Ms Hughes’ emails and their attachments on to
Mr Toyer, a CFMEU organiser in Queensland, by email on 18
17 Zanatta MFI-1, 7/7/14, tabs 1 and 2.
1128
June 2013.18 The first email to Mr Toyer read ‘Here ya go mate.
Call if you need any clarification’. Mr Gaske signed off on those
emails as a Cbus co-ordinator.
Cbus debt collection processes in June 2013
27. The debt collection activities of Cbus were managed by its
appointed debt collection agent, Industry Funds Credit Control
(IFCC).19
28. On 18 June 2013, solicitors retained by IFCC sent
correspondence to Lis-Con in relation to its arrears position.20
29. Mr O’Neill responded to that letter on 20 June 2013 advising that
he had already paid the superannuation entitlements for February
2013 and would pay March 2013 by 27 June 2013. It was agreed
by IFCC that Lis-Con would have until that date to make that
payment.21
30. Some days later, however, on 25 June 2013, Mr Gaske contacted
Ms Hughes and requested that Lis-Con’s files be ‘referred to
legal’ - that is, referred to lawyers for action.22 Since Mr Gaske
had recently been in communications with the CFMEU about
Lis-Con and arrears, and since Mr Gaske was himself an
18 Zanatta MFI-1, 7/7/14, tab 1A, pp 1A-1H and tab 2, pp 7-9. 19 Lisa Zanatta, 7/7/14, T:19.46. 20
Atkin MFI-1, 3/10/14, tab 5, p 5. 21 Atkin MFI-1, 3/10/14, tab 5, p 5. 22
Atkin MFI-1, 3/10/14, tab 5, p 5.
1129
honorary official of the CFMEU, it may reasonably be inferred
that the ‘referral to legal’ was the CFMEU’s idea, and Mr Gaske
was prepared to ensure that this action was taken.
31. Ms Hughes obliged. She asked Mr Andrew Grabski (an
employee of IFCC) to arrange for the Lis-Con files to be
‘referred to legal’.23
32. Two days later, on 27 June 2013, Ms Zanatta met with IFCC.
She asked to be advised of all payment terms on any future
arrears, and that this had been requested because of ongoing
issues the CFMEU was having with Lis-Con.24
33. Later that same day she called IFCC and requested an email
setting out the current arrears position, the estimated debt, and
the implications of issuing proceedings or holding off.25
34. While this was occurring on 27 June 2013, Mr O’Neill called Mr
Grabski and advised that Lis-Con would not commit to monthly
superannuation payments and that the payments for April 2013
and May 2013 would be paid by 27 June 2013 as per the
guidelines from the Australian Tax Office.26
35. That same day, in answer to Ms Zanatta’s request described
above, Mr Grabski sent an email to Ms Zanatta with the Lis-Con
23 Zanatta MFI-1, 7/7/14, tab 3, p 10 and tab 4, p 18. 24 Atkin MFI-1, 3/10/14, tab 5, p 4. 25
Atkin MFI-1, 3/10/14, tab 5, p 4. 26 Zanatta MFI-1, 7/7/14, tab 5, p 22-23.
1130
arrears information. He also took the opportunity to advise her of
the results of his conversation with Mr O’Neill.27
36. Mr Grabski set out in this email the nature and extent of the
arrears position for Lis-Con. He identified that one Lis-Con
company was four months behind and the other was three months
in arrears. Precisely calculated estimates were given in respect of
the total amount owed by each company for those months.
37. The arrears information in this email was ‘aggregated’
information. It stated the total amounts owed by each company
for particular months. It was not broken down by reference to
individual employees of the company.
38. The following day, 28 June 2013, Ms Zanatta forwarded Mr
Grabski’s email to Mr Jade Ingham, the Assistant Secretary of
the Queensland Branch of the Construction and General Division
of the CFMEU. 28
39. Ms Zanatta’s email to Mr Ingham read ‘Jade please read update
below regarding Lis Con. If you are available to chat now please
call on [phone number]. Thanks lisa’. Ms Zanatta’s evidence
was that Mr Ingham had asked her for a current update on Lis-Con’s arrears.29
27 Zanatta MFI-1, 7/7/14 tab 5, p 22. 28 Zanatta MFI-1, 7/7/14, tab 5, p 22. 29
Lisa Zanatta, 7/7/14, T:23.19-26.
1131
40. Ms Zanatta had no qualms about sending quite detailed arrears
information of this kind, not involving personal details, to the
CFMEU. She was perfectly able to deal with an arrears query
coming from a very senior official of the CFMEU. None of this
called for any form of secret communications or subterfuge.
Nothing had to be hand delivered. Ms Zanatta did not need to fly
it to Brisbane to give to Mr Ingham. The information was simply
sent by Ms Zanatta by email. This is how a request from a senior
CFMEU official to Ms Zanatta for arrears information would be
handled, and how she would be expected to handle it.
41. That same day, 28 June 2013, this email chain was then
forwarded on by Mr Ingham to Mr Michael Ravbar, the Secretary
of the Queensland Branch of the Construction and General
Division of the CFMEU. Mr Ravbar in turn sent it to Mr Dave
Noonan, the CFMEU’s National Secretary.
42. After Mr Noonan received this email chain he sent it on to Mr
Atkin. Mr Atkin said in his evidence that he must have spoken
with Mr Noonan about the email, but that he could not recall
what was said.30
43. Mr Ravbar also had a conversation with Mr Atkin about it.31 In
that conversation, Mr Ravbar said that he wanted further
information from Cbus about the extent of the arrears. Mr Atkin
30 David Atkin, 23/10/14, T:844.20-24. 31 Michael Ravbar, 23/9/14, T:253.44-46.
1132
says that he subsequently gave Mr Ravbar aggregate arrears
information during a trip to Brisbane.32
44. Mr Atkin then sent this email chain of 28 June 2013 on to Ms
Butera, with a request that she touch base with him about it.33
These contacts at the highest executive levels of Cbus (Mr Atkin
and Ms Butera) and at the highest levels of the CFMEU (Mr
Noonan, Mr Ravbar and Mr Ingham) point towards a close
cultural affinity between the two institutions.
45. Later that same day Ms Butera sent an email on to Ms Noye (a
Cbus manager who sat in the management chain between Ms
Zanatta and Ms Butera) and said ‘Cath - can you please follow
up. M’.34 This was at 11.29am.
46. At 11.33am, that is only several minutes later, Ms Zanatta sent an
email to IFCC advising that the CFMEU in Queensland had
‘requested’ that Cbus ‘go ahead with legal proceedings ASAP’.35
In a telephone call a few moments later, Ms Noye said to IFCC
that ‘the union wanted files referred to legal asap’.36 Proceedings
were then commenced on 19 July 2013 in the District Court of
New South Wales.37
32 David Atkin, 23/10/14, T:844.38ff. 33 Zanatta MFI-1, 7/7/14, tab 5, p 21. 34
Zanatta MFI-1, 7/7/14, tab 5, p 21. 35 Atkin MFI-2, 23/10/14; David Atkin, 23/10/14, T:891.28-40. 36
Atkin MFI-7, 23/10/14, p 1. 37 Atkin MFI-1, 3/10/14, tab 7.
1133
47. It is plain that the CFMEU played a significant role in the
decision that was made by Cbus to commence proceedings
against Lis-Con. Indeed the evidence demonstrates that Cbus
was, in substance, acting at the direction of the CFMEU.
Counsel for the trustee of Cbus, United Super Pty Ltd, denied
this. They pointed to the duty of the trustee to enforce the
payment of debts due promptly, to the allegedly consistent
lateness of Lis-Con in payments, to the size of the outstanding
payments, and to the fact that the decision to institute
proceedings depended on instructions from IFCC and on the
work of Gregory Falk & Associates, solicitors, who had to certify
pursuant to s 347 of the Legal Profession Act 2004 (NSW) that
there were reasonable grounds for instituting proceedings.38 Yet
these propositions are not inconsistent with those of counsel
assisting, and they do not constitute any reason not to accept
them.
CFMEU ‘war’ on Lis-Con
48. At about the same time, on 25-27 June 2013, executives from the
Construction and General Division of the CFMEU were
participating in a Divisional Executive Meeting.
49. The meeting was attended by Mr Parker, Mr Ravbar, Mr Dave
Noonan, Mr Tom Roberts (Senior National Legal Officer), Mr
Fitzpatrick (an organiser from the NSW Branch) and a large
number of other officials from around the country.
38 Outline of submissions of United Super Pty Ltd as trustee for Cbus, 14/11/14, para 26.
1134
50. The minutes of the meeting note that there were various
discussions in relation to Lis-Con, that the union had received
complaints of breaches of awards and statutory entitlements, and
that the branches were requested to provide information of
breaches to the National Office via Mr Roberts.39
51. The minutes paint an overly cultivated picture of what was
actually discussed and agreed at the meeting. What was agreed,
in substance, was that the CFMEU would ‘go to war’ with Lis-Con.40 Everyone who attended the meeting agreed with this
course.41 The CFMEU submitted that there was no evidence of
any ‘war’.42 It submitted that Mr Fitzpatrick had said it was only
his ‘terminology’.43 It pointed out that others denied or did not
recall that the expression was used. But by their fruits shall ye
know them. The use eventually made of the Zanatta spreadsheets
was a tactic employed in what was in substance a war which Mr
Parker hoped would be successful.
Instructions from Mr Parker to Mr Fitzpatrick
52. At the June 2013 National Executive Meeting, it was agreed that
Mr Parker, with Mr Fitzpatrick’s assistance, would obtain certain
39 Parker MFI-1, 3/10/14, p 76. 40 Brian Fitzpatrick, witness statement, 15/7/14, para 97-98. 41
Brian Fitzpatrick, 15/7/14, T:40.26-46. 42 CFMEU submissions in reply to Lis-Con submissions, 21/11/14, paras 1-4. 43
Brian Fitzpatrick, 15/7/14, T:40.34.
1135
information in relation to Lis-Con and that this information
would be passed onto the other States as part of this ‘war’.44
53. Mr Parker admitted that he told Mr Fitzpatrick that he wanted to
find out information about Lis-Con's workers and use that
information to try and attack Lis-Con.45
54. Mr Fitzpatrick was told that the plan was to ‘get contact details
for Lis-Con employees off Cbus and then contact the employees
and encourage them to stir up trouble with Lis-Con over unpaid
entitlements’.46 By ‘contact details’ it was meant personal
information capable of being used to communicate with the
employees.
44 Brian Fitzpatrick, witness statement, 15/7/14, para 99. 45 Brian Parker, 3/10/14, T:637.25-27. 46
Brian Fitzpatrick, witness statement, 15/7/14, para 102.
1136
The McWhinney table
55. In July 2013, after taking instructions from Mr Parker, Mr
Fitzpatrick contacted Mr Bob McWhinney of Cbus and asked
him what information he could provide to the CFMEU about Lis-Con. Mr McWhinney advised he could email Mr Fitzpatrick with
the names and amount of the last payment for the Lis-Con
employees.47
56. On 12 July 2013, Mr McWhinney sent this information to Mr
Fitzpatrick as an attachment to an email.48 The attached
documents (McWhinney table) were schedules which set out the
name, Cbus number, date of birth and superannuation payment
information in respect of particular Lis-Con employees for each
Lis-Con company. The McWhinney table was a relatively short
document, and did not contain any personal contact information
for Lis-Con employees. It was radically different, in terms of
appearance, length and content, from the documents that Mr
Parker later obtained from Ms Zanatta. It was probably,
however, in breach of cl 6.4 of the Cbus trust deed.49
57. Upon receiving the McWhinney table, Mr Fitzpatrick reported
back to Mr Parker. He noted that the information he was able to
get did not include what Mr Parker had wanted in terms of details
47 Brian Fitzpatrick, witness statement, 15/7/14, para 103. 48 Zanatta MFI-1, 7/7/14, tab 10, p 38-45. 49
So submitted by Mr O’Neill and the Lis-Con companies, 14/11/14, para 3(1), and accepted by Outline of Submissions of United Super Pty Ltd in Reply to the Submissions of Lis-Con, 21/11/14, paras 1(1) and 5(3).
1137
capable of being used to contact Lis-Con employees. Mr Parker
told Mr Fitzpatrick that he would talk to Mr McWhinney. 50
Mr Parker seeks and obtains the Zanatta spreadsheets: general
58. In the period from 18 to 29 July 2013, Mr Parker sought and
obtained from Cbus the personal contact details of the Lis-Con
employees. He did so by enlisting the help of Ms Zanatta and Ms
Butera. The events which occurred are described below.
Although occasional passing references are made in this section
of this chapter to the false evidence given by Ms Butera, Ms
Zanatta and Mr Parker, for the most part their false evidence is
addressed in a separate section of this chapter.
18 July 2013
59. On the morning of 18 July 2013, at 8.35am, Mr Parker called Mr
Atkin.51 Their conversation was a short one, during which Mr
Parker asked Mr Atkin for assistance in terms of providing
further information about Lis-Con’s arrears history. Mr Atkin
said he would see what Cbus could do to help the union where it
could.52 According to Mr Atkin, Mr Parker did not tell Mr Atkin
that he wanted detailed records to enable him to contact
employees of Lis-Con.53 Mr Parker submitted that there was
50 Brian Fitzpatrick, witness statement, 15/7/14, para 105. 51 Parker MFI-1, 24/10/14, p 26. 52
David Atkin, 3/10/14, T:772.31-32; David Atkin, 23/10/14, T:868.26-33. 53 David Atkin, 3/10/14, T:772. 21-24.
1138
nothing improper in his request.54 But on what lawful basis did
he make the inquiry? He did not act on behalf of any CFMEU
members. He had not contacted Lis-Con to complain on their
behalf. His only purpose can be inferred from the use to which
the personal contact details in the Zanatta spreadsheets were
eventually put. That purpose was to advance the CFMEU
campaign against Lis-Con by improper means. Later in Mr
Parker’s submissions there is an admission that the information
requested, whether it was ‘ordinary, or innocent, information’, or
‘confidential, personal information’, was to ‘be used in pursuing
the CFMEU’s interests in relation to Lis-Con’.55 The CFMEU
did not demonstrate that it had any interests in relation to
CFMEU members employed by Lis-Con. Its interests in relation
to Lis-Con were the effective waging of war.
60. Mr Atkin reported his conversation, whatever its content was, to
Ms Butera, Ms Butera then spoke to Ms Zanatta about it. There
is no direct evidence of what the content of the conversation
between Ms Butera and Ms Zanatta was. In written submissions,
Ms Butera has insinuated that Mr Parker said what Mr Atkin
denied, and that Mr Atkin passed Mr Parker’s request to Ms
Butera and Ms Zanatta. That fits with the circumstantial
probabilities.
54 Submissions on behalf of Brian Parker, 19/11/14, para 13(c). 55 Submissions on behalf of Brian Parker, 19/11/14, para 70 (read with para 17).
1139
61. At 2.06pm the same day, Ms Zanatta called Mr Parker. They
spoke for a little over seven minutes.56 Ms Zanatta made no
mention of this conversation with Parker when she gave evidence
on 7 July 2014.
62. Within half an hour of the conclusion of that call, Ms Zanatta
sent an email to Mr Walls of Superpartners asking him to run an
enquiry for the accounts for Lis-Con for the past 12 months.57
63. When Mr McWhinney had earlier sought and obtained the
McWhinney table from Superpartners, he had been careful to set
particular limits on the information that was to be provided by
Superpartners to him.58
64. Ms Zanatta’s request of Mr Walls on 18 July 2013 contained no
such limitation. She simply asked for a ‘query’ to be run. As Mr
Walls explained in his evidence, the effect of this was to request
Superpartners to conduct an automated trawl of its database that
would result in the extraction of all of the information on that
database in respect of Lis-Con employees.59 It was obvious to
someone of Ms Zanatta’s vast experience within Cbus that the
results of such a query would include the personal contact details
of the employees in question.
56 Zanatta MFI-2, 3/10/14, p 2. 57 Zanatta MFI-1, 7/7/14, tab 11, p 46. 58
Zanatta MFI-1, 7/7/14, tab 9, p 36. 59 Anthony Walls, 7/7/14, T:108.
1140
65. The query that Ms Zanatta caused Mr Walls to run was the only
query run by Superpartners in relation to Lis-Con in the relevant
period.60 Although various less intrusive searches of the
Superpartners’ database were undertaken through the period, this
was the only full query. Thus it was the only search that
produced results which included the personal contact details of
the Lis-Con employees.
66. The very fact of the 7 minute call from Ms Zanatta to Mr Parker
referred to above (which immediately prompted Ms Zanatta to
proceed to request the Superpartners’ query soon after) was
highly unusual. Mr Parker was the most senior CFMEU official
in the whole of New South Wales. Ms Zanatta was in Cbus’
management. Routine requests for arrears information about a
company were not usually handled in this way.
67. The pre-18 July 2013 events, and the events which transpired
after that date, make it probable that during this telephone call on
18 July 2013 Mr Parker told Ms Zanatta that he wanted to obtain
a full set of Cbus’s records in relation to Lis-Con, and that in
particular he wanted to get hold of information that would enable
the CFMEU to contact Lis-Con employees. Counsel for Mr
Parker submitted that he only asked for details other than the
personal contact details, but Ms Zanatta either misunderstood
him or improperly failed to remove the personal contact
information.61 So far as these are possibilities, they are remote
60 Butera MFI-2, 23/10/14. 61 Submissions on behalf of Brian Parker, 19/11/14, para 44.
1141
and theoretical only. They are inconsistent with the probabilities
suggested by the circumstantial background. Mr Parker’s
submission assumes that Ms Zanatta passed on information to Mr
Parker he did not request and did not want. But why would she
do that unless he had asked for it? If he did not request it and did
not want it, why did he not return it? The stealthy nature of later
events suggests that both she and he knew the dealing was
wrong. There was only one reason why it was wrong: it
involved personal contact details which Cbus was obliged not to
disclose.
68. Ms Zanatta subsequently told Ms Butera that this is what was
being arranged. So much is obvious from the events of 24 July
2013 and following, as set out shortly.
22 July 2013
69. On 22 July 2013, Mr Walls sent Ms Zanatta an email with the
results of the query she had requested on 18 July 2013. The
email attached two large spreadsheets.62 Those documents
contained information in respect of a large number of Lis-Con
employees, including their names, email addresses, telephone and
mobile numbers.
62 Zanatta MFI-1, 7/7/14, tab 14, p 51.
1142
70. Those spreadsheets were excel documents, capable of
manipulation in various ways, including the removal of
columns.63
71. Included in the evidence before the Commission are two original
printed spreadsheets with handwriting upon them in blue and
black ink.64 They will be referred to below as the Zanatta
spreadsheets. They are in identical form to the spreadsheets
attached to Mr Walls’ email of 22 July 2013 to Ms Zanatta, save
that various columns have been removed so as to reduce the
width of the document. The column containing the telephone
numbers of the Lis-Con employees was not removed. That is a
significant fact - telling in and of itself.
72. When Mr Walls sent his email of 18 July 2013 to Ms Zanatta, he
copied Mr McWhinney into the email.65
73. This caught Ms Zanatta by surprise, because when she had made
the request of Mr Walls, she had been careful not to include any
other person as an addressee. She did not want anyone else to
know about it.
74. Upon receiving the information and becoming aware that it had
also been copied to other people, Ms Zanatta emailed Mr
63 Anthony Walls, 7/7/14, T:116.22-24. 64 Fitzpatrick MFI-3, 24/9/14. 65
Zanatta MFI-1, 7/7/14, tab 14, p 51.
1143
McWhinney and stated ‘Bob please don’t pass this on at this
stage. Thank you’. Mr McWhinney replied ‘OK’.66
75. Ms Zanatta also replied to Mr Walls stating ‘Thank you Anthony
this request was private. I would have appreciated if was okey
[sic] before ccing others’ (emphasis added).67
76. It is plain from these communications that Ms Zanatta had
intended that her request of Mr Walls be kept a secret. She did so
because she understood, at the time, that it was wrong for her to
be seeking and obtaining documents which contained personal
contact details for the purpose of supplying it to Mr Parker to
assist the CFMEU in its war with Lis-Con.
77. Mr Walls replied to Ms Zanatta’s reprimand by way of a short
email in which he said ‘I’m so sorry about that. I thought Cc’ing
Bob would be ok given that he asked for the same query 2 weeks
ago but changed his mind. My apologies, I’ll remember for next
time’.68 Ms Zanatta then replied stating ‘No problem at all. I
understand exactly why you did it. I have sorted it’.69 Ms
Zanatta’s reference to having ‘sorted it’ was a reference to the
fact that she had requested and obtained Mr McWhinney’s
assurance not to pass it on at that stage.70
66 Zanatta MFI-1, 7/7/14, tab 15, p 112. 67 Zanatta MFI-1, 7/7/14, tab 16, p 113. 68
Zanatta MFI-1, 7/7/14, tab 16, p 113. 69 Zanatta MFI-1, 7/7/14, tab 16, p 113. 70
Zanatta MFI-1, 7/7/14, tab 15, p 112.
1144
24 and 25 July 2013
78. On 24 July 2013, Ms Zanatta emailed Ms Butera stating:71
We now have the data requested by Brian Parker.
I have spoken to Anthony for passing it on to others without consent.
How would you like to proceed with the information?
I’ll catch up with you to discuss tomorrow if you are available.
Thank you
79. The email attached the ‘query’ results documents that Mr Walls
had sent to Ms Zanatta on 22 July 2013. The reference in Ms
Zanatta’s email to Ms Butera to the ‘data requested by Brian
Parker’ was that information.
80. Later that same day, Ms Butera emailed back requesting that they
discuss the matter the following day. Ms Zanatta agreed.72
81. The following day, 25 July 2013, Ms Butera and Ms Zanatta had
the meeting as planned.
82. The fact and sequence of the above communications are
important in a number of respects.
71 Zanatta MFI-1, 7/7/14, tab 18, p 119. 72 Zanatta MFI-1, 7/7/14, tab 19, p 173.
1145
83. First, they make it clear that the data on the spreadsheets from Mr
Walls was data that Mr Parker had requested. Both women knew
that to be so. Ms Zanatta said so in terms in her email of 24 July
2013.
84. Secondly, the email of 24 July 2013 demonstrates that Ms
Butera, who was senior to Ms Zanatta, was playing the lead role
in this subterfuge. Ms Zanatta was reporting back to her, and her
question to Ms Butera in the email of 24 July 2013 was ‘how
would you like to proceed with the information?’ (emphasis
added).
85. Thirdly, the communications demonstrate complicity between Ms
Zanatta and Ms Butera in relation to the covert nature of Mr
Parker’s request and Cbus’ response to it. Secrecy was the order
of the day, to the point where meetings were being organised
between two senior Cbus employees to discuss how to ‘proceed
with the information’. The disclosure of arrears information
would not be improper and would not call for secrecy. The
wrongful disclosure of sensitive information would. The
sensitive information held by Ms Zanatta in this case was the
personal contact details of the Lis-Con workers.
86. The only reason why Ms Butera and Ms Zanatta needed to meet
on 25 July 2013 was that they both knew that the information that
Mr Parker had asked for was highly sensitive information which
they were not supposed to be handing over and the possession of
which in their hands had to be kept secret. A discussion about
1146
how to get such information to Mr Parker could not take place
via email or in casual office conversation.
87. It is probable that Ms Zanatta and Ms Butera met on 25 July 2013
in order to discuss how to convey that sensitive information to
Mr Parker without getting caught. It is probable that they then
agreed that Ms Zanatta would act as a courier and take it up to
Mr Parker in Sydney. It is probable that they agreed it could not
be emailed or couriered in the ordinary way, because to do so
would leave a paper trail leading back to them. Counsel for Mr
Parker submitted that these conclusions are speculative.73 On the
contrary, they are reasonable inferences from the circumstances.
26 July 2013
88. On Friday, 26 July 2013, Ms Zanatta was not in the Cbus office
in Melbourne. She was travelling to and from Geelong.74
89. At 2.30pm that afternoon, Ms Zanatta telephoned Mr Parker
while she was on the road.75 They spoke for four and a half
minutes.
90. At 2.37pm, Ms Zanatta sent an iMessage to Ms Butera’s mobile
phone in the following terms:76
73 Submissions on behalf of Brian Parker, 19/11/14, para 51. 74 Lisa Zanatta, 3/10/14, T:742.18-20. 75
Zanatta MFI-3, 3/10/14, p 198/422, item 254. 76 Butera MFI-3, 28/10/14, p 2, item 26.
1147
I have made arrangement [sic] to drop off information to Brian Parkers PA . he is expecting a call from you . When you can .
91. That contemporaneous record, in the context in which it was
written, reveals that during the 2.30pm phone call between Ms
Zanatta and Mr Parker, arrangements were made for the Zanatta
spreadsheets to be dropped off by Ms Zanatta to Mr Parker’s
personal assistant on 29 July 2013. Ms Zanatta was telling Mr
Parker that she was planning to fly the documents to Sydney and
deliver them to Mr Parker’s assistant. The reason why Mr
Parker’s personal assistant needed to receive the documents was
that Mr Parker was not going to be in the CFMEU NSW Branch
Lidcombe office that day.
92. Ms Butera did not write back expressing any confusion as to the
subject matter of the iMessage. She did not ask what information
was being referred to.77 She did not communicate back to Ms
Zanatta asking her what she was supposed to say in the call to Mr
Parker.78 She knew exactly what was being planned, and what
Ms Zanatta had been discussing with Mr Parker. The plan was
for Ms Zanatta to take the Zanatta spreadsheets and drop them off
at the NSW Branch office at Lidcombe with Mr Parker’s
personal assistant.
93. At 2.40pm, Ms Butera telephoned Mr Parker.79 The call lasted
for 2 minutes. There is no direct evidence of its contents. But it
77 Maria Butera, 28/10/14, T:1136.34-39. 78 Maria Butera, 28/10/14, T:1137.6-10. 79
Butera MFI-1, 23/10/14, p 162/422, item 104.
1148
is probable that she warned him of the need for secrecy and care
in using the Zanatta spreadsheets. That inference follows from
an iMessage at 2.43pm.
94. That 2.43pm iMessage was sent by Ms Butera to Ms Zanatta in
response to her iMessage of 2.37pm referred to above. In that
message Ms Butera said:80
Done - he understands completely and is committed to using info very carefully. M
95. That iMessage records the substance of the phone conversation
that Ms Butera had with Mr Parker at 2.40pm that day. It is clear
that Ms Butera considered that the information that was being
delivered to Mr Parker’s personal assistant was very sensitive,
and she wanted to ensure that Mr Parker would use that sensitive
information very carefully. Mr Parker committed to doing so.
Arrears information is not sensitive information. Arrears
information does not need to be personally delivered by Ms
Zanatta in order to avoid detection. The information that was
sensitive was the personal contact details of the Lis-Con workers.
That was the information that Ms Butera was so concerned about,
and was what she discussed with Mr Parker. For her part, Ms
Zanatta did not ask whatever it was that had been done, what it
was that Mr Parker understood completely, what the information
was, and why it had to be used very carefully. She knew the
answers to all these questions.
80 Butera MFI-3, 28/10/14, p 2, item 27.
1149
96. While Ms Zanatta had been waiting for this response, and at
2.37pm on 26 July 2013, having just finished her conversation
with Mr Parker, Ms Zanatta then called Jackie Heintz, Project
Officer at Cbus.81
97. Within 20 minutes of that call, Ms Heintz had arranged flights for
Ms Zanatta from Melbourne to Sydney (return) for the following
Monday, 29 July 2013.82 The booking form described the
purpose of the trip as a ‘union meeting’. Ms Zanatta’s electronic
diary for 29 July 2013 records she had flights to and from Sydney
that day.83
98. At 2.56pm on 26 July 2013, Ms Zanatta made a further call to Ms
Heintz.84
99. About an hour later, at 3.57pm, an express courier service was
booked by Cbus for the purpose of delivering a package from the
Cbus office to Ms Zanatta’s home address.85 The package was
collected at 4.40pm and was delivered at 5.20pm.
100. The package contained the Zanatta spreadsheets, which had been
printed out at the Cbus office. Since Ms Zanatta was away from
the office on the afternoon of 26 July 2013, arrangements had to
be made for them to be delivered to her so that she could take
81 Zanatta MFI-3, 3/10/14, p 198/422, item 255. 82 Zanatta MFI-4, 3/10/14. 83
Zanatta MFI-1, 3/10/14. 84 Zanatta MFI-3, 3/10/14, p 198/422, item 258. 85
Zanatta MFI-5, 3/10/14.
1150
them to Sydney and deliver them to Mr Parker’s office on the
following Monday, 29 July 2013.
101. At 5.47pm that evening Ms Zanatta sent an iMessage to Mr
Parker. It read as follows:86
Hey Comrade just confirming that Jenny or is it Jennifer operates out of the Lidcombe office. Is that correct? In unity lisa cbus.
102. Mr Parker responded with an iMessage of his own at 6.10pm to
Ms Zanatta, which read:87
Jennifer comrade thank you
103. The name of Mr Parker’s personal assistant was Jennifer Glass.
Ms Zanatta’s iMessage to Ms Butera of earlier in the day referred
to the fact that she was going to deliver the information to Mr
Parker’s personal assistant. The reference to Jennifer in these
messages between Mr Parker and Ms Zanatta is clearly a
reference to Ms Glass.
104. Arrangements had to be made for someone other than Mr Parker
to take receipt of the documents being delivered by Ms Zanatta
on 29 July 2013 because he was going to be in Canberra that
day.88
105. Counsel for Mr Parker submitted that there was no objective
evidence about the content of several of those calls, and that Mr
86 Parker MFI-1, 28/10/14, item 1. 87 Parker MFI-1, 28/10/14, item 2. 88
Brian Parker, 24/10/14, T:996.40.
1151
Parker could not recall them.89 A more realistic proposition is
that Mr Parker said he could not recall them. Either Mr Parker
has a very bad memory or he was being untruthful. A man who
rose to be State Secretary of the CFMEU, with the numerous
cares and detailed tasks turning on the receipt of many telephone
calls and the conducting of many meetings characteristic of that
office, would need a very good memory. But, again, the
probabilities support the conclusions stated above about what
was said, whether or not Mr Parker genuinely could not
remember.
Conversation between Mr Parker and Mr Fitzpatrick
106. It is convenient to interrupt the narrative to explain the place in it
of some important evidence of Mr Fitzpatrick. Mr Fitzpatrick
gave evidence that Mr Parker told Mr Fitzpatrick in July 2013
that he had arranged for two women at Cbus secretly to give him
private information about Lis-Con's employees.
107. Mr Fitzpatrick’s evidence was that Mr Parker said to him ‘words
to the effect “We are getting what we want. I’ve spoken to her
and she has agreed to give it to us on the quiet”’.90 Mr
Fitzpatrick recollected that Mr Parker mentioned the first name of
a woman in Cbus and that it was ‘Liz’91 or ‘Lisa’.92
89 Submissions on behalf of Brian Parker, 19/11/14, paras 53, 54 and 60. 90 Brian Fitzpatrick, witness statement, 15/7/14, para 107. 91
Brian Fitzpatrick, witness statement, 15/7/14, para 107. 92 Brian Fitzpatrick, 15/7/14, T:44.16.
1152
108. Mr Parker told Mr Fitzpatrick that one of the Cbus women
involved was one of the bosses and that she had not told her own
boss about what she was doing because it was illegal. Mr Parker
said words to the effect of:
We have gotta be very careful we don't tell anyone about it. If this comes out I'm dead, the girls are dead and they'll be sacked and I’ll be sacked.93
109. Mr Fitzpatrick’s evidence in relation to this conversation with Mr
Parker has now been corroborated by the iMessages of 26 July
2013 referred to above (which neither Mr Fitzpatrick nor the
Commission staff knew anything about when Mr Fitzpatrick gave
his evidence). It is to be accepted. His prediction, too, has,
unfortunately, come to pass in part - and the end game has not
yet been played.
110. The initial thesis of the CFMEU and Mr Parker (at a time when
they were represented by the same counsel) was one which it was
assumed, without denial from counsel, was being propounded on
instructions, though Mr Parker never provided an evidence
statement.94 The thesis was that Mr Fitzpatrick had obtained the
Zanatta spreadsheets from Cbus himself and in order to protect
his source and bring Mr Parker down, he had nominated Mr
Parker as the person who gave them to him. The answer, given
with impressive sincerity, was: ‘I completely and utterly reject
that as nonsense’.95 A further element in the initial thesis of the
93 Brian Fitzpatrick, witness statement, 15/7/14, para 107. 94 Brian Fitzpatrick, 24/9/14, T:307.21-27. 95
Brian Fitzpatrick, 24/9/14, T:299.24.
1153
CFMEU and Mr Parker was that Mr Fitzpatrick had given the
Zanatta spreadsheets to Mr Roberts, solicitor for the CFMEU, on
15 July 2013. Mr Fitzpatrick repeatedly denied this.96
111. The truth of these denials by Mr Fitzpatrick is now clear in view
of the revelations that took place during the evidence of Ms
Zanatta and Ms Butera. In final address, Mr Parker, however,
now separately represented, ran a line which seemed to defy
these revelations. It was submitted:97
It is not surprising that [Mr Fitzpatrick] would wish to minimise his role in the obtaining of the information, and in the deceitful use of that information. It is not surprising that he would seek to shift or distribute the blame to others (such as Parker). Fitzpatrick has a very strong incentive to implicate others - particularly those senior to him like Parker - in his wrongful and deceitful behaviour. In those circumstances, his evidence should be approached with considerable caution. It should not be relied upon (at least where there is no objective evidence to support what he alleges).
112. The first point is that now there is objective evidence to support
what Mr Fitzpatrick said and to destroy what Mr Roberts said
about being given the Zanatta spreadsheets by Mr Fitzpatrick on
15 July 2013. The second point is that it was Mr Fitzpatrick who
drew attention to the Zanatta spreadsheets. But for that, his
involvement in the Cbus scandal would never have come to light.
To compare him to some criminal seeking to minimise his own
role by blaming others is a quite false analogy. If he had
remained silent, the Cbus scandal would never have been
uncovered, and his own discreditable role in it would have
96 Brian Fitzpatrick, 24/9/14, T:308.37-46, 320.43-45. 97 Submissions on behalf of Brian Parker, 19/11/14, para 23.
1154
remained secret as well. He broke the news not to shift the blame to
others, but to seek to purify the CFMEU, even at the cost of his own
reputation. Mr Fitzpatrick’s counsel concluded his submissions on the
Cbus affair thus:98
Parker is no longer in the CFMEU camp or represented by their lawyers. Clearly Parker has been cast aside because the CFMEU knows that, in light of Zanatta’s evidence, he has no chance of survival. Not though, according to Mr Parker’s new legal team. It brings to mind the comedy of Monty Python and the Holy Grail where the Black Knight has had all his limbs cut off but continues to badger his attackers: “it’s just a flesh wound … right I’ll do you for that! … Come here! … I’m invincible!”
113. That is unconventional advocacy. But it has considerable force.
114. The fact is that quite apart from the support which Mr Fitzpatrick’s
evidence in its substantive aspects receives from the course of
events, his demeanour was excellent. On points of detail his
memory was often revealed to be good. For example, Mr
Fitzpatrick was cross-examined to suggest that he had said certain
things to Mr Nicholas Fodor, a Cbus co-ordinator. The cross-examiner was relying on Mr Fodor’s statement. Mr Fitzpatrick
denied saying these things.99 When Mr Fodor entered the witness
box after Mr Fitzpatrick, he corrected the passages on which the
cross-examiner had relied. He said he had given the corrections to
his solicitor at 9.15am that day - before Mr Fitzpatrick had entered
the witness box at 9.35am.100 Though
98 Submissions on behalf of Brian Fitzpatrick in reply to those made on behalf of the CFMEU and Brian Parker, 21/11/14, para 25. 99
Brian Fitzpatrick, 24/9/14, T:330.34-331.30. 100 Nicholas Fodor, 24/9/14, T:377.23-378.42.
1155
differences remained between Mr Fitzpatrick and Mr Fodor, this
evidence, albeit on a minor issue, was a significant pointer to Mr
Fitzpatrick’s general credibility.
29 July 2013
115. On the morning of 29 July 2013, Ms Zanatta caught her flight
from Melbourne to Sydney, taking with her the Zanatta
spreadsheets. She landed in Sydney at about 10.55am.101
116. As the taxi records demonstrate, through the GPS co-ordinates,
Ms Zanatta travelled in the taxi from Sydney airport to the
CFMEU’s office at Lidcombe.102 The taxi arrived at 11.33am. It
waited for her for 2 minutes, after which she returned to the taxi
at 11.35am and was taken back to the airport for her flight home.
117. As Ms Zanatta ultimately admitted, she personally delivered
documents to the CFMEU office at Lidcombe at 11.33am on 29
July 2013,103 with a request that they be provided to Mr
Parker.104 When asked whether the documents were the Zanatta
spreadsheets she said: ‘I suspect so, yes’. By that stage, her
admissions of earlier perjury had placed her in so great a state of
belligerence and distress that by ‘suspect’ she meant ‘knew’. She
was not going to give a lying denial. She was not going to
concede knowledge frankly. So she selected ‘I suspect so, yes’.
101 Zanatta MFI-4, 3/10/14. 102 Zanatta MFI-7, 3/10/14. 103
Lisa Zanatta, 3/10/14, T:754.22-25, 768.1-32. 104 Lisa Zanatta, 3/10/14, T:754.35-41.
1156
But she meant ‘knew’. She identified no other document that
could have been delivered by her on that day. She positively
rejected the suggestion raised by the CFMEU’s counsel that the
documents she delivered could have been the totality of the
attachment to the email of 22 July 2013 from Mr Walls.105 It
should be noted that Mr Parker’s submissions admit that he never
denied that information may have been dropped off to his
personal assistant on 29 July 2013.106
118. At 11.46am that day, Ms Butera sent Ms Zanatta an iMessage. It
read:107
Everything ok? M
119. Ms Zanatta immediately responded to that message with her own
iMessage, which read:108
Yes thank you - done delivered.
120. This contemporaneous record demonstrates that Ms Butera knew
that Ms Zanatta was in Sydney delivering the Zanatta
spreadsheets to Mr Parker’s personal assistant.
121. Ms Zanatta caught her flight back to Melbourne on 29 July 2013
at about 2:00pm.109
105 Lisa Zanatta, 3/10/14, T:766-7. 106 Submissions on behalf of Brian Parker, 19/11/14, para 53. 107
Butera MFI-3, 28/10/14, p 2, item 32. 108 Butera MFI-3, 28/10/14, p 2, item 31.
1157
122. When she arrived home, at 4.53pm that day, she telephoned Mr
Parker (who was out of the office that day) and they spoke for
three and a half minutes.110 She was ringing Mr Parker to tell
him that she had dropped off the documents to Ms Glass earlier
that day.
123. The following morning, 30 July 2013, Mr Parker called Ms
Zanatta, and they spoke for a further three minutes.111 Mr Parker
was now back in the CFMEU Lidcombe office, having not
returned to the office the previous evening.112 He had taken
receipt of the documents Ms Zanatta had dropped off the
previous day. He was ringing to let her know that he had
received the documents.
Mr Parker’s receipt and use of the documents
124. On 30 July 2013, Mr Parker provided Mr Fitzpatrick with the
Zanatta spreadsheets.
125. Counsel for Mr Parker submitted: ‘There is no evidence that
Parker received the documents, other than Fitzpatrick’s
unreliable account’.113 But Mr Fitzpatrick was not unreliable.
There is no reason to doubt that a bulky document delivered for
109 Zanatta MFI-4, 3/10/14. 110 Zanatta MFI-3, 3/10/14, p 233/426, item 11. 111
Parker MFI-1, 24/10/14, p 32. 112 Brian Parker, 24/10/14, T:999.47-1000.16. 113
Submissions on behalf of Brian Parker, 19/11/14, para 65.
1158
Mr Parker on 29 July 2013 would have been given to him when
he returned to the office on 30 July 2013.
126. Mr Parker told Mr Fitzpatrick that he had received the lists from
Cbus headquarters in Melbourne and told Mr Fitzpatrick to
‘follow up on it’.114 This meant that Mr Fitzpatrick was to use the
contact details in the documents provided to contact employees
of Lis-Con and carry out the plan to attack Lis-Con.
127. On 30 July 2013, Mr Fitzpatrick made a number of telephone
calls to employees of Lis-Con.115 The numbers he rang appear
on the Zanatta spreadsheets. They do not appear on any other
documents which were provided by Cbus to the CFMEU.
128. On those calls Mr Fitzpatrick advised the employees that Lis-Con
was behind in paying their entitlements using words to the
effect:116
I’m from Cbus. I’m letting you know that your Bus and ACIRT payments, I believe your ACIRT payments are the same, are well behind. You should do something about it.
129. The purpose of these calls was to get these employees to contact
Mr O’Neill about outstanding superannuation payments.117 This
was the tactic agreed between himself and Mr Parker in order to
114 Brian Fitzpatrick, witness statement, 15/7/14, para 111. 115 CFMEU MFI-7, 24/10/14, p 2. 116
Brian Fitzpatrick, 24/9/14, T:303.35-38. 117 Brian Fitzpatrick, witness statement, para 112.
1159
achieve the ‘best and quickest response’.118 This conduct was
not creditable to Mr Fitzpatrick, though his admission of it does
enhance the credibility of his evidence.
130. Ms Zanatta and Mr Parker spoke again on the phone later on 30
July 2013 - at 4.42pm119 for one minute and again at 4.43pm for
four minutes.120 Counsel assisting submitted that Mr Parker was
telling her that the plan they had discussed had been put into
action, and the Zanatta spreadsheets had been very useful.
Counsel for Mr Parker submitted that there was no evidence to
support this.121 But the probabilities do support the conclusion
that something like that was said.
The Gaske leak of 30 July 2013
131. On 30 July 2013, Mr Gaske sought and obtained further
information from Ms Hughes of Superpartners in relation to Lis-Con arrears. Ms Hughes responded, providing Mr Gaske with an
email of the same date listing the employees of Lis-Con Services
by name and identifying amounts owed to them. The information
did not include any of the personal contact details of the Lis-Con
118 Brian Fitzpatrick, 24/9/14, T:305.32-33. 119 Parker MFI-1, 24/10/14, p 32. 120
Zanatta MFI-3, 3/10/14, p 224/426, item 31. 121 Submissions on behalf of Brian Parker, 19/11/14, para 66.
1160
employees.122 But the disclosure of financial information was
probably in breach of cl 6.4 of the Cbus trust deed.123
132. Upon receipt of that email on 30 July 2013, Mr Gaske sent it on
to Mr Gareth Baines, who was the construction manager at Civil,
Mining and Construction Pty Ltd.124 He stated in that email: ‘I
think we have covered off on information you requested. If there
is anything else don’t hesitate to call. Cheers’.
Complaint from Lis-Con and the reactions to that complaint
133. On 1 August 2013, Cleary Hoare, the solicitors for Lis-Con,
wrote to Mr Noonan of the CFMEU and raised concerns that Mr
Gaske had obtained confidential information in respect of Lis-Con and forwarded that information externally to Cbus.125 In
that correspondence, Cleary Hoare noted that a number of Lis-Con’s workers had been contacted from telephone numbers that
originated in Bowen Hills (the suburb of Brisbane in which the
Queensland Divisional Branch has its office), and that those
workers had reported that they had been threatened by CFMEU
officials.
122 Zanatta MFI-2, 7/7/14, tab 42, p 368. 123 As submitted by Mr O’Neill and the Lis-Con companies, 14/11/14, para 3(3) and accepted in Outline of Submissions of United Super Pty Ltd as trustee for Cbus in Reply to the Submissions of Lis-Con, 21/11/14, paras 1(1) and 5(2). 124
Zanatta MFI-2, 7/7/14, tab 42, p 367. 125 Zanatta MFI-2, 7/7/14, tab 37, p 351.
1161
134. On the same day, Cleary Hoare also sent correspondence of a
similar kind to Mr Atkin at Cbus.126 The letter to Mr Atkin
attached a copy of Mr Gaske’s email of 30 July 2013 to Mr
Baines. Several days later Cleary Hoare also wrote to Mr Bracks,
the Cbus chairman.127
135. When Mr Atkin received the Cleary Hoare letter on 1 August
2013, he forwarded it on to Ms Butera. He said ‘This has just
come through this afternoon. Could we discuss how best to
respond’.128
136. Ms Butera then forwarded this email on to Ms Zanatta at 5.17pm.
The text of her email to Ms Zanatta read: ‘In-confidence. I need
to speak to you about this. M’.129
137. At 5.23pm, Ms Butera rang Ms Zanatta and they had a 5 minute
telephone conversation.130 There is no direct evidence of the
content of the conversation. But it may be inferred that they
discussed the Cleary Hoare complaint.
138. The next day, 2 August 2013, the following telephone calls took
place:
126 Zanatta MFI-2, 7/7/14, tab 42 p 365. 127 Zanatta MFI-2, 7/7/14, tab 42 p 364. 128
Zanatta MFI-1, 7/7/14, tab 28, p 219. 129 Zanatta MFI-1, 7/7/14, tab 28, p 219. 130
Butera MFI-1, 23/10/14, p 164/426, item 21.
1162
7.29am Ms Zanatta rang Mr Parker (7 minutes 30
seconds);131
12.00pm Ms Butera rang Ms Zanatta (4 minutes);132
3.21pm Mr Parker rang Ms Zanatta (6 minutes);133
3.57pm Ms Butera rang Ms Zanatta (5 minutes).134
139. This flurry of communication was quite out of the ordinary.
Plainly Ms Butera and Ms Zanatta were afraid that they were
going to be caught out, and that the Lis-Con complaint had really
arisen because of the use that had been made of the Zanatta
spreadsheets that Ms Zanatta had delivered on 29 July 2013. The
complaint from Lis-Con had, however, directed attention to Mr
Gaske, and they wanted things to stay that way. These
conversations between the parties to this intrigue were about
these matters.
140. While this was going on, and in response to the complaint from
Lis-Con, Mr Atkin asked Ms Thurston, the Cbus Executive
Manager of Governance and Risk, to undertake an investigation
131 Zanatta MFI-3, 3/10/14, p 224/426, item 50. 132 Butera MFI-1, 23/10/14, p 165/426, item 25. 133
Parker MFI-1, 24/10/14, p 34. 134 Butera MFI-1, 23/10/14, p 165/426, item 29.
1163
into the matter.135 Ms Butera and Ms Zanatta were called upon
to assist in that process.136
141. Following the completion of the brief internal investigation by
Cbus into Mr Gaske’s position, Cbus’s lawyers (Holding
Redlich) were instructed to send a letter to Cleary Hoare on 7
August 2013 noting that Cbus accepted it was inappropriate for
Mr Gaske to have acted as he did, but indicating that Cbus was
‘satisfied that this incident is an isolated occurrence’.137 That
letter was sent following a conference with Holding Redlich
attended by Mr Atkin, Ms Butera, Ms Zanatta and Ms
Thurstans.138
142. The complaint about the leakage of Lis-Con workers’
information to the CFMEU so shortly after their own escapade of
late July 2013 had given Ms Butera and Ms Zanatta a fright.
They were anxious to ensure that there would be no further
complaints from Lis-Con that might result in a further
investigation and a revelation of their own misconduct.
143. Records of activity on 8 August 2013 establish the following
occurred:
135 David Atkin, 3/10/14, T:783.10-16. 136 David Atkin, 23/10/14, T:914.21-23. 137
Zanatta MFI-2, 7/7/14, tab 47A, p 424D. 138 Lisa Zanatta, 7/7/14, T:56.19; Maria Butera, 7/7/14, T:94.27-31; Maria Butera, 28/10/14, T:1128.8-13.
1164
8.41am Ms Zanatta rang Mr Parker (1 minute 30 second
call);139
11.52am Ms Butera rang Ms Zanatta (30 second call);140
11.53am iMessage from Ms Butera to Ms Zanatta:141
‘Lisa - did BP call you back? M’;
11.53am iMessage from Ms Zanatta to Ms Butera:142
‘No ill call him now’;
11.54am Mr Parker rang Ms Zanatta (1 minute call);143
11.55am Mr Parker rang Ms Zanatta (4 minute call);144
11.59am iMessage from Ms Zanatta to Ms Butera:145
‘Everything is still safe in his hands only’.
144. Counsel for Mr Parker submitted that his denial that he said this
to Ms Zanatta146 should be accepted.147 But why should Mr
139 Zanatta MFI-3, 3/10/14, p 225/426, item 128. 140 Butera MFI-1, 23/10/14, p 165/426, item 52. 141
Butera MFI-3, 28/10/14, p 3, item 39. 142 Butera MFI-3, 28/10/14, p 3, item 38. 143
Parker MFI-1, 24/10/14, p 36. 144 Parker MFI-1, 24/10/14, p 36. 145
Butera MFI-3, 28/10/14, p 3, item 40.
1165
Parker’s claimed recollection be preferred to Ms Zanatta’s
contemporary note, particularly in light of the events which
preceded it as earlier discussed?
145. These records demonstrate that Ms Butera and Ms Zanatta were
anxious, on 8 August 2013, to ensure that Mr Parker still had the
Zanatta spreadsheets and that there would be no more activity
that could result in their exposure. Mr Parker gave them that
comfort, telling Ms Zanatta that everything was still safe and in
his hands only.
146. The fact that Mr Gaske had been caught out was the source of
some amusement for Mr Parker. Mr Parker told Mr Fitzpatrick
that Mr O’Neill might mistakenly suspect that the trouble that Mr
Fitzpatrick and Mr Parker were causing was caused by someone
in the Queensland Branch of the CFMEU.148 Mr Parker found
this amusing at the time, and he had a chuckle with Mr
Fitzpatrick about it.149 But the broader significance of these
numerous telephone calls between Ms Zanatta and Mr Parker on
2 and 8 August 2013 is that they tend to corroborate Mr
Fitzpatrick’s evidence.
146 Brian Parker, 28/10/14, T:1188.36-1189.30. 147 Submissions on behalf of Brian Parker, 19/11/14, para 68. 148
Brain Fitzpatrick, witness statement, 15/7/14, para 114. 149 Brain Fitzpatrick, witness statement, 15/7/14, para 114.
1166
False evidence given by witnesses to the Commission
147. A striking feature about this case study has been the willingness
displayed by a number of the witnesses who have been called to
give false evidence. There was a lot of false evidence in very
many areas of the present inquiry, but the scale of dishonesty in
relation to this Cbus matter was exceptional and staggering.
148. The following witnesses gave false evidence - Ms Butera, Ms
Zanatta and Mr Parker.
149. Why and in what way were the accounts of these witnesses false?
The recitation of the key events in the chronology set out above
did not deal with these questions in any detail. To do so would
have disrupted the orderly flow of a section devoted to an
identification of the facts. But that exposition having been given,
it is now convenient to turn and address the evidence of these
witnesses and why it should be treated as dishonest.
The fictional position adopted up to the mid-afternoon of 3 October 2014
150. Mr Parker, Ms Butera and Ms Zanatta presented a fictional
account of the relevant events in the evidence given by each of
them up to the mid-afternoon of 3 October 2014 when Ms
Zanatta was recalled.
151. According to Ms Zanatta’s evidence given on 7 July 2014, the
sequence of events was that:
1167
(a) she had been asked by Ms Butera to ‘review the company’s
arrears’ because Mr Atkin had received a call from Mr
Parker raising serious concerns about Lis-Con’s arrears;150
(b) she was surprised by the volume of personal information
contained in the spreadsheets sent to her by Mr Walls on
22 July 2013 and sought to take action to make sure it did
not get leaked;151
(c) she provided Ms Butera with an update on 25 July 2013
and told her that Lis-Con was four months in arrears and it
was agreed that Ms Zanatta would call Mr Parker to tell
him that;152
(d) she called Mr Parker and said ‘Lis-Con is four months in
arrears’;153
(e) she was not personally involved in the provision by Cbus
of any information concerning the employees of Lis-Con to
the CFMEU.154 She said she did not know what
information had been released to the CFMEU, had never
150 Lisa Zanatta, 7/7/14, T:28.42-29.41. 151 Lisa Zanatta, 7/7/14, T:35-36. 152
Lisa Zanatta, 7/7/14, T:38.45-46. 153 Lisa Zanatta, 7/7/14, T:40.2-3. 154
Lisa Zanatta, 7/7/14, T:21.7-9, 21.30-32.
1168
seen the data that was released, and did not know who had
released it.155
152. Ms Butera’s evidence on 7 July 2014 was that:
(a) Mr Atkin told her that Mr Parker had spoken to him and
expressed a concern about the arrears status of Lis-Con.
The conversation was no more specific than that;156
(b) she asked Ms Zanatta to make enquiries in relation to the
arrears status of Lis-Con.157 The enquiry that Ms Zanatta
was being asked to make was a routine enquiry,158 and
would involve Ms Zanatta collating the arrears information
and ringing Mr Parker to tell him about the results, and this
is what occurred;159
(c) the query and the response to it was ‘unremarkable’;160
(d) she did not know how the personal information of Lis-Con
employees ended up with Mr Parker.161
155 Lisa Zanatta, 7/7/14, T:35.3, 35.28. 156 Maria Butera, 7/7/14, T:76.11-15. 157
Maria Butera, 7/7/14, T:77.24-26. 158 Maria Butera, 7/7/14, T:79.5. 159
Maria Butera, 7/7/14, T:82.17-19, 83.44-46. 160 Maria Butera, 7/7/14, T:83.41. 161
Maria Butera, 7/7/14, T:83.33-35.
1169
153. Mr Parker’s account of events, as given to the Commission on
the morning of 3 October 2014, was that:
(a) he rang Mr Atkin and asked him to ‘provide documentation
from Cbus that would assist’ the CFMEU in its
investigations into Lis-Con arrears;162
(b) he had a conversation with Ms Zanatta during which she
told him that Lis-Con was four months in arrears, but by
this stage he already knew that to be so from discussions
with Mr Fitzpatrick.163
154. Ms Zanatta and Ms Butera were later caught out by reference to
documents not available to the Commission on 7 July. But
independently of those documents, the sequence of events thus
described by these witnesses beggared belief in light of the
objective facts and circumstances.
155. First, Mr Fitzpatrick had given Mr Parker the McWhinney table
of 12 July 2013. That set out the Lis-Con arrears position -
indeed, it set it out in far greater detail than the usual aggregated
position, by identifying what each individual worker was owed.
That being so, Mr Parker had no reason at all to be ringing Mr
Atkin on 18 July 2013 to ask for information about the Lis-Con
arrears position. He already knew what it was. He wanted
162 Brian Parker, 3/10/14, T:639.5-8. 163 Brian Parker, 3/10/14, T:640.3-9.
1170
something more. He wanted private contact details of the Lis-Con employees.
156. Secondly, as at 18 July 2013, Ms Butera and Ms Zanatta already
knew that Lis-Con was 4 months in arrears. They had both
participated in the email traffic between the highest members of
the CFMEU and Cbus executives in late June 2013. Ms Zanatta
had thereafter been extensively involved in an examination of the
precise Lis-Con position and, indeed, had only recently taken
instructions directly from the CFMEU to commence legal
proceedings against Lis-Con to recover those very arrears. There
was no need for Ms Zanatta to run a full query through
Superpartners for Mr Parker on 18 July 2013 in order to find out
what the arrears position was. She already knew it, and so did
Ms Butera. They could have told Mr Parker on 18 July 2013 that
not only was Lis-Con four months in arrears (which, indeed, he
already knew), but the CFMEU had already instructed Cbus to
commence litigation against Lis-Con, and the matter had been
referred to IFCC and its lawyers.
157. Thirdly, Ms Zanatta was a senior and highly experienced Cbus
manager. The suggestion that she needed guidance or approval
from Ms Butera on 25 July 2013 about how to tell Mr Parker that
Lis-Con was 4 months in arrears is not believable. It was her
‘bread and butter’.
158. Fourthly, if the communications between Ms Butera, Ms Zanatta
and Mr Parker were so innocent, there would have been no need
1171
for the secretive approach evident from the email of 24 July 2013
referred to above.
159. As to the third and fourth points just noted, the terms of the 24
July 2014 email from Ms Zanatta to Ms Butera make it clear that
each of them were aware, as at that date, that the ‘data Brian
Parker had requested’ was highly sensitive, and the two of them
needed to meet face to face about how they were to ‘proceed with
the information’.
Ms Zanatta’s evidence on 3 October 2014
160. As noted above, when Ms Zanatta gave evidence on 7 July 2014
she denied any involvement in or knowledge of the leak. She
made no mention of a visit to Sydney on 29 July 2013. She made
no mention of her telephone conversation with Mr Parker on 18
July 2013 in advance of the request of Mr Walls to run a query
on Lis-Con. She made no mention of her telephone
conversations with Mr Parker on 29 July 2013 and 30 July 2013,
which immediately followed the delivery of the Zanatta
spreadsheets. She made no mention of her five calls with Mr
Parker in early August 2013 at the time of the Lis-Con complaint.
She made no mention of her iMessages with Ms Butera on 26
July 2013, 29 July 2013 and 8 August 2013. She made no
mention of her iMessages with Mr Parker on 26 July 2013.
Indeed there are a number of these matters which she has never
acknowledged.
1172
161. When Ms Zanatta was recalled to give evidence on 3 October
2014, she was aware of the fact that the Commission had called
for and reviewed her diary for 29 July 2013, her flight itinerary
for the trip to Sydney and her telephone records.
162. She knew she needed to explain her visit to Sydney. In that
knowledge, Ms Zanatta concocted a story as to why she had
come to Sydney on that day. She told that story in her evidence
to the Commission on 3 October 2014.
163. Ms Zanatta’s story was that she had come to Sydney to attend an
audit briefing Cbus Property and joint unions meeting in the
Sydney city office of Cbus at 343 George Street, had been
dropped off by a taxi at York Street because it could not drop her
in George Street, had asked the taxi driver to wait while she
checked where the meeting would be, had rung from a public
phone (because her mobile phone was flat and the taxi driver
would not lend her his for fear that she would steal it) for a few
dollars, and discovered that the meeting had been cancelled
without notice by Danny Gardiner from Cbus Property. She had
then returned to the taxi and been driven back to the airport to
catch her flight to Melbourne.164
164. This entrancing tale was crammed with circumstantial detail. But
as she spun the yarn, questions insistently welled up in the minds
of those familiar with the splendours and miseries of modern
Sydney life. When did any Sydney taxi driver worry about
164 Lisa Zanatta, 3/10/14, T:732-735.
1173
prohibitions on stopping to drop a passenger? When was there
last a public telephone in York Street? Even if there was still
one, what were the chances of it not having been vandalised?
Even if it had not been vandalised, what were the chances of it
being in working order? Why would a very short local call cost a
few dollars? And there were gaps in the tale. The normal
reaction of a business executive who had been brought from
Melbourne to Sydney on a wild goose chase would have been
fury, but Ms Zanatta did not seem to express any.
165. The York Street tale is, of course, a scandalous lie, like almost all
of Ms Zanatta’s evidence to that point.
166. When confronted with the evidence available to the Commission
as to her movements on 29 July 2013 Ms Zanatta admitted that
she had secretly delivered the documents to Sydney for the
attention of Mr Parker. She admitted to having lied to the
Commission on many occasions during the course of her
evidence.165 She said she had done so in order to protect a
number of individuals, including Mr Parker.166
165 Lisa Zanatta, 3/10/14, T:750.31-38, 752.1-5. 166 Lisa Zanatta, 3/10/14, T:750.43ff.
1174
Disposing of what little remains of the fictional account
167. Almost nothing of the fictional account of Ms Zanatta, Ms Butera
and Mr Parker remained in the aftermath of these admissions.
168. On 3 October 2014, Ms Zanatta attempted a fighting retreat. But
it was to no avail. She tried to suggest that Mr Parker had not
told her that he wanted to obtain records showing the personal
contact details of Lis-Con employees,167 and contended that Ms
Butera was not one of the people she had been trying to
protect.168
169. When Mr Parker and Ms Butera were subsequently recalled after
3 October 2014, they too tried to suggest they knew nothing
about any request or supply of information as to the private
contact details of the Lis-Con workers by Ms Zanatta to the
CFMEU office in Lidcombe.
170. Their evidence as to that matter beggared belief even before the
discovery of the evidence which led to Ms Zanatta’s further
examination and admissions on 3 October 2014.
171. It had now become even more problematic.. The landscape had
changed. Now, on top of all of the problems which bedevilled
that evidence prior to 3 October 2014, there was direct evidence
of a secret delivery of the Zanatta spreadsheets to the union’s
office for the attention of Mr Parker. There was no need for
167 Lisa Zanatta, 3/10/14, T:756.24-26. 168 Lisa Zanatta, 3/10/14, T:756.38-40.
1175
covert behaviour of this kind if it was just routine arrears
information that had been sought and provided. Mr Parker
accepted that to be so.169 Ms Zanatta would hardly take it upon
herself to act in this clandestine, furtive and improper way in
order to supply information that nobody had ever asked for.
172. These conclusions are reinforced by the further materials
produced to the Commission on 24 October 2014, being the
iMessages set out earlier in these submissions. They evidence a
deeply held concern by each of Ms Butera, Ms Zanatta and Mr
Parker in July and August 2013 that the information that the Cbus
officers would be providing, and did provide, was highly
sensitive and needed to be handled carefully. They also reveal
the panic that set in when they became aware of Lis-Con’s
complaint that employees were being contacted by CFMEU
officials, and Mr Parker’s assurance that the information
remained safe in his hands.
173. Ms Butera’s and Mr Parker’s involvement in the leak is obvious
from the iMessage records now before the Commission. In order
to demonstrate that fact, it is necessary to recall, if only
summarily, some of the evidence already addressed.
174. In this regard, the important matters for consideration include the
following:
169 Brian Parker, 28/10/14, T:1175.25.
1176
(a) as previously explained, Mr Parker had no reason to ask
Cbus for information about Lis-Con’s arrears position
on 18 July 2013. He already knew what that was. Mr
Fitzpatrick had only just told him and given him the
McWhinney table;170
(b) each of Ms Zanatta and Ms Butera knew that Lis-Con
was four months in arrears as at July 2013. If that was
all Mr Parker was asking for, they could have told him
that on 18 July 2013 and that would have been the end
of the matter;
(c) Mr Parker told Mr Fitzpatrick that he was getting what
he wanted from Cbus and they had agreed to give it to
him ‘on the quiet’.171 Arrears information would not
have to be dealt with in this way. Only sensitive
information would need to be given ‘on the quiet’;
(d) on 24 July 2013, Ms Butera received a guarded email
from Ms Zanatta about ‘the data requested by Brian
Parker’, and calling for a meeting the next day in order
to agree on how ‘to proceed with the information’,
which meeting took place;172
170 Fitzpatrick MFI-1, 15/7/14, p 103-107. 171 Brian Parker, 24/10/14, T:992.37-41. 172
Zanatta MFI-1, 7/7/14, tab 18, p 119.
1177
(e) there was no need for these dealings between Ms
Zanatta and Ms Butera if all Ms Zanatta had to do was
pass on arrears information to Mr Parker;
(f) the sensitive information which Ms Zanatta had at that
time, which could not be dealt with in a routine way,
and which would need to be dealt with ‘on the quiet’,
was the personal contact details of the Lis-Con workers;
(g) that sensitive information was actually attached to the
email that Ms Zanatta sent Ms Butera on 24 July
2013;173
(h) Ms Zanatta sent Ms Butera an iMessage on 26 July
2013 telling her she had made arrangements to drop off
the information to Brian Parker’s personal assistant, and
that Mr Parker was expecting a call from Ms Butera;174
(i) Ms Butera then rang Mr Parker,175 and after doing so,
sent an iMessage to Ms Zanatta that Mr Parker
understood completely and was committed to using the
information carefully;176
(j) on the very day Ms Zanatta was in Sydney dropping the
Zanatta spreadsheets off to Mr Parker’s assistant, Ms
173 Zanatta MFI-1, 7/7/14, tab 18, p 119. 174 Butera MFI-3, 28/10/14, p 2, item 26. 175
Butera MFI-1, 23/10/14, p 162/422, item 104. 176 Butera MFI-3, 28/10/14, p 2, item 27.
1178
Butera sent an iMessage to Ms Zanatta asking if
everything was okay, to which Ms Zanatta responded
‘Yes thank you - done delivered’;177
(k) Ms Butera’s immediate response upon hearing of a
complaint by Lis-Con about a leak from Cbus was to
send Ms Zanatta an email headed ‘In-confidence’
saying that they needed to speak.178 They then had a 5
minute conversation.179 This led to a flurry of calls
between Ms Zanatta and Mr Parker and between Ms
Zanatta and Ms Butera the following day, 2 August
2013;180
(l) when Cbus wrote back to Lis-Con indicating that the
leak had come from Mr Gaske alone, and was an
isolated occurrence, there was then another flurry of
calls between Ms Zanatta and Ms Butera, and also
between Ms Zanatta and Mr Parker.181 In between
those calls, Ms Butera sent an iMessage to Ms Zanatta
indicating she was worried about whether Ms Zanatta
had been able to speak with Mr Parker, and Ms Zanatta
177 Butera MFI-3, 28/10/14, p 2, items 31 and 32. 178 Zanatta MFI-1, 7/7/14, tab 28, p 219. 179
Butera MFI-1, 23/10/14, p 164/426, item 21. 180 See above para 138. 181
See above para 143.
1179
sent an iMessage back saying that ‘everything is still
safe in his hands only’.182
175. Each of Ms Butera and Mr Parker knew in July and August 2013
that Ms Zanatta had made arrangements to drop information off
to Mr Parker’s personal assistant. Not only are there
documentary records of Ms Zanatta having made these
arrangements with Mr Parker, and a record of Ms Zanatta telling
Ms Butera that she had done so, but there is also a record which
establishes that Ms Butera herself had made a highly remarkable
telephone call to Mr Parker (the most senior officer of the
CFMEU in New South Wales) to obtain a personal commitment
from him to use very carefully the information that was to be
delivered. And, of course, the evidence is that Ms Zanatta did
deliver the documents for Mr Parker’s attention on 29 July 2013.
176. These events were relatively recent, and striking. It was a most
unusual series of events that led to the delivery of the Zanatta
spreadsheets. According to Mr Parker, there had never been
another case where an arrangement was made for a Cbus
employee to drop a document off in the Lidcombe office for his
personal assistant (‘no, definitely, no’).183 It was a ‘very unusual’
event.184
182 Butera MFI-3, 28/10/14, p 3, items 38, 39 and 40. 183 Brian Parker, 28/10/14, T:1175.45. 184
Brian Parker, 28/10/14, T:1179.34-35.
1180
177. The memorable nature of those events would have been
accentuated by the scare that Ms Butera, Ms Zanatta and Mr
Parker obviously received not long after, when allegations started
to be made by Lis-Con about the leaking of information from
Cbus. Mr Parker agreed that he would have remembered events
of this kind if they had occurred.185
178. In these circumstances, these unusual events of August 2013
could not have, and had not, drifted out of the memories of any
one or more of Ms Butera, Ms Zanatta or Mr Parker by the time
they were called to give their evidence in mid-2014. They
remembered the events clearly. Yet they came to this
Commission and gave untruthful evidence about these matters.
The very fact they have done so is, of itself, telling.
179. To all of this must be added Mr Fitzpatrick’s original evidence to
the effect that:
(a) Mr Parker told him that he was getting the information
from two women at Cbus,186 a ‘Liz or Lisa’ and ‘one of
the bosses’, who would be sacked if they were caught
out;
185 Brian Parker, 28/10/14, T:1171.41-45. 186 Brian Fitzpatrick, witness statement, 15/7/14, p 107; Brian Fitzpatrick, 15/7/14, T:44.7-8.
1181
(b) Mr Parker had said that he wanted to get the contact
details for Lis-Con workers so that the CFMEU could
ring them;187 and
(c) Mr Parker gave him the Zanatta spreadsheets for that
purpose.188
There is no reason to doubt that this is what occurred. Mr
Fitzpatrick’s account of the events has been corroborated by the
materials produced to this Commission since he gave his
statement.
180. By way of summary, there are nine key matters to remember:
(a) the terms of the communications described above
involving Ms Butera and Ms Zanatta;
(b) the fact Ms Zanatta went to extraordinary lengths to
convey documents to Mr Parker’s office in person and
in secret;
(c) the fact Ms Butera and Mr Parker knew about that;
(d) the fact Ms Butera and Mr Parker knew that the
documents that were secretly delivered contained
sensitive information that had to be handled very
carefully;
187 Brian Fitzpatrick, witness statement, 15/7/14, para 102. 188 Brian Fitzpatrick, witness statement, 15/7/14, para 111.
1182
(e) the fact that the information in those documents that
was sensitive was the personal contact details of Lis-Con workers;
(f) the fact that Ms Zanatta, Ms Butera and Mr Parker were
prepared to go so far as to lie on their oath about these
matters in the witness box in order to conceal the true
position;
(g) the fact that the story about a routine arrears query on
18 July 2013 makes no sense when assessed against
what Mr Parker, Ms Butera and Ms Zanatta actually
knew by that date about Lis-Con’s arrears;
(h) the fact that Ms Zanatta said she lied to protect Mr
Parker - for if Mr Parker had done nothing wrong there
would be nothing to protect him from and no need to
lie; and
(i) Mr Fitzpatrick’s evidence as to what Mr Parker said he
was obtaining from Cbus, and whom he was obtaining it
from.
These nine key matters all point overwhelmingly to the
conclusion that Ms Zanatta, Ms Butera and Mr Parker knew that
the information provided to Mr Parker, and about which such
care needed to be taken, was the personal contact information of
the Lis-Con workers. They knew about it both in July and
August 2013, and they had not forgotten by the time they gave
1183
their evidence to this Commission in 2014. In fact, as each new
development unfolded - a newspaper article in May 2014
reporting Mr Fitzpatrick’s claims, Mr Fitzpatrick’s statement in
July 2014, the production of the documents which led to Ms
Zanatta’s recall on 3 October 2014, the collapse of Ms Zanatta on
3 October 2014, the recall of Ms Butera on 23 October 2014, the
discovery of the iMessages on 24 October 2014, and the third
visits to the witness box of Ms Butera and Mr Parker on 28
October 2014 - the most acute pressures on them to search their
recollections built up. It is not easy to forget unpleasant things
when a recurring series of sharp reminders of them takes place.
181. Having regard to the fact that Ms Butera was Ms Zanatta’s
superior within Cbus, and the terms of the 24 July 2013 email
addressed to Ms Butera from Ms Zanatta in which the latter
asked Ms Butera how she would like Ms Zanatta to proceed with
the information, it is clear that Ms Butera not only knew what Ms
Zanatta was doing, but positively approved and authorised it.
Ms Butera’s false evidence
182. The nature and extent of Ms Butera’s false evidence in this
Commission is deeply regrettable.
183. When all of the evidence described above was laid before her, the
only credible course for Ms Butera to have taken was to admit
the falsity of her evidence to that point (which Ms Zanatta had
done in some measure) and provide truthful evidence that would
actually assist the Commission (which Ms Zanatta did to a lesser
1184
extent). Ms Butera declined the opportunity to take that course
several times. She may have done that because of the fate of Ms
Zanatta when she took that course - dismissal. Much of her
evidence seemed to reflect a determination to give very vague
answers which, she might have thought, would not sustain a
perjury charge. But Ms Butera’s rejection of Ms Zanatta’s course
caused her to aggravate the position and potentially to expose
herself to consequences far more severe than would otherwise
have been the case.
184. Of particular note was Ms Butera’s evidence in relation to the
matters the subject of the iMessage communications with Ms
Zanatta.
185. Take, for example, the iMessage of 26 July 2013 from Ms
Zanatta to Ms Butera, in which Ms Zanatta reported to her that
she had made arrangements to drop off the information to Mr
Parker’s personal assistant and that he was expecting Ms Butera’s
call,189 (which iMessage was sent immediately after Ms Zanatta
had, in fact, spoken with Mr Parker190):
(a) before Ms Butera was shown the iMessage, she said that
if such information had been communicated to her that
would be a ‘very significant thing’, and that such a thing
189 Butera MFI-3, 28/10/14, p 2, item 26. 190 Zanatta MFI-3, 3/10/14, p 198/422, item 254.
1185
had never happened.191 She rejected such a thing ever
happened;192
(b) after she was shown the iMessage (which recorded the
communication she had denied and which she said she
would have remembered if it had occurred) she said ‘I
don’t remember any of this’;193
(c) she proceeded to deny, in the face of the iMessages, that
she was acting in concert with Ms Zanatta;194
(d) she also proceeded to deny, in the face of the iMessages,
that she knew Ms Zanatta was going to Sydney;195
(e) when she was shown the iMessage, and in the face of it,
she said she did not know what ‘information’ Ms
Zanatta was talking about through the
communication,196 and said she did not know what
‘information’ Ms Zanatta was dropping off;197
(f) when she was given every fair opportunity to give
truthful evidence on the matter, and retract her previous
191 Maria Butera, 28/10/14, T:1122.42-1123.4. 192 Maria Butera, 28/10/14, T:1126.4-11. 193
Maria Butera, 28/10/14, T:1131.19. 194 Maria Butera, 28/10/14, T:1131.21-23. 195
Maria Butera, 28/10/14, T:1131.28-30. 196 Maria Butera, 28/10/14, T:1134.5-6. 197
Maria Butera, 28/10/14, T:1134.40, 1135.42.
1186
evidence about having had no prior knowledge,
involvement or participation in the release of the
information, she declined to take it, and instead said
‘You’ve heard my evidence’.198
186. This is but one example. There would be little to be gained by
setting out, in this Interim Report, in exhaustive fashion, the full
length and breadth of Ms Butera’s false evidence. Some of the
other more egregious examples appear in Annexure A to this
Chapter.
Ms Zanatta’s false evidence
187. The most notable perjury committed by Ms Zanatta has been
described above, when dealing with her evidence of 3 October
2014.
188. Other examples of false evidence given by Ms Zanatta are set out
in Annexure B to Chapter 8.3.
Mr Parker’s false evidence
189. Mr Parker also gave false evidence. The evidence he gave as to
his lack of involvement of and awareness in the Cbus leak was
not true.
190. Mr Parker was a shrewd, capable and cunning man. He had
numerous stock phrases which he used to admit what he thought
198 Maria Butera, 28/10/14, T:1132.10, 19.
1187
counsel would know, but not concede anything else. His evidence was
in a state of constant movement. It shifted here and there as more
evidence adverse to him came to light.
191. In August 2014, Mr Parker told Ms Mallia that he had telephoned Mr
Atkin in July 2013 to get information about Lis-Con compliance, and
then had ‘no further contact with anyone from Cbus about Lis-Con’.199
He did not mention a single phone conversation with Ms Zanatta or Ms
Butera, despite the large number he actually had.
192. On 3 October 2014, that position had changed. On that date he
accepted there had been a brief phone call to Cbus for Lis-Con arrears
information and a brief phone call back from Cbus with that
information.200 This conveniently dovetailed with Ms Zanatta’s
evidence to that point.
193. Then, when Ms Zanatta made her admissions on 3 October 2014 after
Mr Parker had given evidence earlier that day, other ‘possibilities’ or
‘probabilities’ began to admit themselves to Mr Parker’s mind. On
occasion Mr Parker would advance different possibilities in answer to
the one question - for example ‘I didn’t’, ‘I can’t recall’ and ‘I’m not
privy to’ in answer to the same question within the space of about 15
seconds.201 In the end, Mr Parker typically sought sanctuary in the
harbour of ‘I
199 Rita Mallia, witness statement, 25/8/14, para 91. 200 Brian Parker, 3/10/14, T:639.42ff. 201
Brian Parker, 28/10/14, T:1187.21-34.
1188
don’t recall’. Mr Parker presented as a witness who was not
prepared to tell the truth, but at the same time wanted to avoid
perjury charges.
194. In this regard, on 24 October 2014, Mr Parker said in his
evidence:
(e) he ‘probably’ told Mr Fitzpatrick that he was getting
what he wanted from Cbus and they had agreed to give
it to him on the quiet;202
(f) he ‘possibly’ asked Ms Zanatta to get some information
about Cbus members who were Lis-Con employees;203
(g) Ms Zanatta ‘could have’ told him on 26 July 2013 that
she was coming to Sydney to give him documents, but
he could not recall;204
(h) Ms Zanatta ‘possibly’ told him in the phone call on the
afternoon of 29 July 2013 that she had flown to Sydney
on his behalf and had then returned to Melbourne, and
she probably told him she had dropped all the material
he wanted into the office at Lidcombe;205
202 Brian Parker, 24/10/14, T:992.37-44. 203 Brian Parker, 24/10/14, T:992.12-14. 204
Brian Parker, 24/10/14, T:993.32-36. 205 Brian Parker, 24/10/14, T:1000.35-38.
1189
(i) he either ‘probably’, or ‘possibly’, had a discussion with
Ms Zanatta on 30 July 2013 about the fact she had
dropped some documents off, and what was happening
with them, but he could not recall.206
195. After the revelation of the iMessages to Mr Parker on 28 October
2014, he said that:
(a) he ‘could not recall’ the phone conversation recorded in
Ms Butera’s iMessage of 26 July 2013 about him
‘understanding completely’ and being ‘committed to
using the information very carefully’;207
(b) he denied having a recollection of it being arranged with
Ms Zanatta on Friday, 26 July 2013 that she would drop
off documents to his personal assistant in Lidcombe the
following Monday, 29 July 2013;208
(c) he denied having said to Ms Zanatta on 8 August 2013
that everything was still safe in his hands, even though
that is precisely what Ms Zanatta reported to Ms Butera
in an iMessage of that date, sent immediately following
a telephone call between Ms Zanatta and Mr Parker.209
He was prepared to deny that even though, on his own
evidence, he could ‘not recall’ what was said in the
206 Brian Parker, 24/10/14, T:1002.34-37. 207 Brian Parker, 28/10/14, T:1179.8, T:1183.45, 1186.40. 208
Brian Parker, 28/10/14, T:1181.32. 209 Brian Parker, 28/10/14, T:1188.32-47.
1190
conversation.210 When the iMessage was shown to him
and he was again asked if he had said this, his evidence
was ‘I wouldn’t have a clue’.211 On that evidence, Mr
Parker appeared to accept that he may well have said it
- he just would not know. If his answer does not mean
that, it is yet another evasive, nonsensical and ultimately
meaningless answer from Mr Parker in circumstances
where he refused to give the only sensible answer that
could be given, namely an admission.
196. His remaining denials, as has been explained above, are
incapable of acceptance. Mr Parker avoided saying what he
knows about the Cbus leak in order to protect himself.
197. Mr Parker, who had been represented by counsel for the CFMEU
for most of the inquiry, was separately represented from 6
November 2014 on. The circumstances of the change might bear
some examination in future, but not in this Interim Report. The
change attracts some sympathy for Mr Parker, and it placed his
new team in considerable difficulties, with which they coped
admirably. Nothing more could have been said on Mr Parker’s
behalf. However, their factual arguments must be rejected. His
new counsel advanced elaborate submissions to the effect that Mr
Parker never requested personal contact details from Cbus, he
never received the personal contact details contained in the
Zanatta spreadsheets, and that the things which are said in and
210 Brian Parker, 28/10/14, T:1189.20-22. 211 Brian Parker, 28/10/14, T:1190.40.
1191
can be inferred from the iMessages were the products of
misunderstandings capable of innocent explanation. In short, the
submissions did not seek to defend Ms Butera and Ms Zanatta,
only Mr Parker. But they are unconvincing.
198. With respect, the points just summarised do not meet the strong
circumstantial case against Mr Parker. Why was the information
not emailed to him, rather than being brought by a clandestine
messenger who lied about it? Why did Ms Butera request him to
use care? Why did Ms Zanatta seek and get an assurance that
‘everything was still safe in his hands only’? Why disbelieve Mr
Fitzpatrick? These questions were not adequately answered. In
particular, there was an unfortunate attack on Mr Fitzpatrick. Mr
Fitzpatrick’s general credibility was in fact excellent. The main
points of his evidence, both in relation to Cbus and in relation to
the death threat shortly to be discussed, were convincing, even if
on one or two points of detail he was not reliable. It is true that
he should not have used the personal contact information, but his
evidence was against his interests and Mr Parker’s was self-serving. The contention that what Mr Parker wanted was only
information about arrears, not personal contact details, overlooks
the fact that the former type of information could not be used to
stir up Lis-Con’s employees against their employer.
199. Mr Parker’s submissions relied on the proposition that it was ‘a
legitimate part’ of his role ‘to seek and obtain certain kinds of
information from Cbus relating to employees of Lis-Con; and, if
1192
necessary, to use that information in dealings with Lis-Con.’212
In reply, Mr O’Neill and Lis-Con submitted:213
Mr Parker was not acting on behalf of any CFMEU members: there was no evidence that he made any enquiry as to whether any Lis-Con worker affected by the disclosure he sought was also a CFMEU member. Mr Parker did not obtain information for his use in “dealings with Lis-Con”. He had no such dealings … The union made no approach to Mr O’Neill or to Lis-Con in any legitimate, direct way to discuss any issue about superannuation. The purpose of Mr Parker obtaining the information was to use it to stir up trouble for Lis-Con with its workforce, to intimidate or harass its workers with unauthorised contacts and impostures and to provoke industrial disputation or disquiet about Lis-Con from behind the scenes. The way the ’war-footing’ campaign was conducted belied the complaints which the CFMEU Queensland had made that Lis-Con workers were too afraid to speak up for their rights: the success of the Parker/Fitzpatrick gambit relied on the workers doing just that.
200. There is no answer to those arguments.
201. Mr Parker’s case received a damaging blow in Ms Butera’s
submissions in reply. While blaming Ms Zanatta and Mr Parker
and preserving a degree of silence about her own role, Ms Butera
submitted that the leak could only have taken place on a request
or instruction to give Mr Parker the personal contact details, and
it was complied with in a pro-union environment where leaks to
212 Submissions on behalf of Brian Parker, 19/11/14, para 10. 213 O’Neill/Lis-Con Submissions in Reply to Submissions by Interested Parties, 21/11/14, para 34.
1193
unions by Cbus were not generally frowned upon.214 Ms Butera was
more forthcoming in the following submission:215
Read together, the submissions filed on behalf of Cbus and Parker ask the Commission to accept that Zanatta and Butera breached their duties as Cbus employees and engaged in a subterfuge to deliver personally to Parker private information about Cbus members in circumstances where nobody instructed them to deliver the information to Parker, and where Parker did not ask for nor want the information. Such a conclusion defies the evidence as well as logic and the Commission should reject it.
202. The submission positively intimates that Mr Parker asked for and
wanted the information, and raises the question: Who within Cbus had
the power to make the request or give the alleged instruction to deliver
the information? It assumes the answer: only Mr Atkin. Those
submissions correspond with the evidence that Mr Parker spoke to Mr
Atkin on 18 July 2013, though, according to Mr Atkin, no request was
made for personal contact details. The submissions are not
inconsistent with the evidence that Mr Parker spoke to Ms Zanatta on
18 July 2013. At least so far as Mr Parker’s submissions are claiming
that he had never requested personal contact details are concerned,
those of Ms Butera refute them. The question of who within Cbus was
giving instructions need not be dealt with in this Interim Report.
203. What is stated above in relation to Ms Butera’s submissions in reply is
by way of observation only. The Commission does not rely on those
submissions in making any conclusion adverse to Mr
214 Submissions in Reply to other affected parties on behalf of Maria Butera, 21/11/14, para 9. The key passage is quoted below at para 309. 215
Submissions in Reply to other affected parties on behalf of Maria Butera, 21/11/14, para 11.
1194
Parker or Mr Atkin, who have not yet had the opportunity to deal
with these particular submissions.
A few further observations on the false evidence
204. Before leaving the topic of the false evidence of Ms Butera, Ms
Zanatta and Mr Parker, a few further observations should be
made.
205. First, if these witnesses had told the truth at the outset, the
Commission would have been spared great expense, and the case
study could have been concluded swiftly and economically. The
cost, trouble and difficulty that this Commission has had to go to
in dealing with this false evidence may be of considerable
significance in any subsequent prosecution. There has also been
a cost for third parties. An example concerns the numerous
banks, courier, airline and taxi businesses who received notices to
produce with a view to collecting evidence about Ms Zanatta’s
movements on 26 and 29 July 2013. To comply with a notice to
produce requires a search. Searches, successful or not, cost
businesses time and money.
206. Secondly, the fact that Ms Butera, Ms Zanatta and Mr Parker
were prepared not only to give untruthful evidence in answer to
Mr Fitzpatrick’s evidence, but to sit back and allow what they
knew to be wild allegations to be made against Mr Fitzpatrick
(which allegations he rightly described as ‘nonsense’ and
1195
‘rubbish’216), makes their conduct all the more unsavoury. It also
makes regrettable the CFMEU’s inappropriate public criticism of
what it said it perceived to be the Commission’s position in
relation to Mr Fitzpatrick.217 Those comments should now be the
subject of public apologies from the CFMEU to both the
Commission and Mr Fitzpatrick.
Mr Roberts
207. The last witness deserving of attention is Mr Thomas Roberts.
208. Mr Roberts is the senior legal officer of the Construction and
General Division of the CFMEU nationally. In the witness box
he gave the impression of being shrewd, cautious and intelligent.
As events unfolded, the evidence he originally gave turned out to
be quite unreliable and incorrect. But counsel assisting went
further and launched a strong attack on his credibility along the
following lines.
209. The CFMEU provided the Commission with a statement from Mr
Roberts. Mr Roberts subsequently gave evidence that the
statement was true.
216 Brian Fitzpatrick, 24/9/14, T:299.20-24, 340.26-33. 217 Brian Fitzpatrick, 24/9/14, T:341.32-38.
1196
210. In that statement, Mr Roberts asserted that he received a yellow
folder from Mr Fitzpatrick on 15 July 2013 containing various
documents, including two copies of the Zanatta spreadsheets.218
211. Mr Roberts annexed what he said was a copy of the contents of
the yellow folder he received on 15 July 2013 to his statement, at
annexure TR-9.
212. The original yellow folder was subsequently produced by the
CFMEU, and was tendered as Fitzpatrick MFI-2, 24 September
2014.
213. Annexure TR-9 to Mr Roberts’ statement was thicker than the
yellow folder.219 CFMEU’s senior counsel stated that the
originals of the Zanatta spreadsheets, plus one photocopy, had
been in the yellow folder.220
214. Mr Roberts did not refer to the Zanatta spreadsheets anywhere in
the body of his statement. The fact that his evidence was to this
effect, and the significance of that evidence in the context of this
case study, was not highlighted by the CFMEU or Mr Roberts
when the statement was provided. The fact and significance of
this evidence would only have been apparent to a keen eye
undertaking a careful review of the bulky exhibits to his
218 Thomas Roberts, witness statement, 23/9/14, paras 17-18. 219 24/9/14, T:314.13-14. 220
Mr Agius SC, 24/9/14, T:314.30-43.
1197
statement, keeping in mind at the time of that review the precise
chronology in respect of the Cbus leak.
215. Mr Roberts’ evidence was advanced in order to support a theory
to the effect that Mr Fitzpatrick must have had the Zanatta
spreadsheets before 18 July 2013 (the date of Ms Zanatta’s
request of Mr Walls), and as such, he must have got them himself
and from some ‘secret source’ within Cbus before Ms Zanatta
began her work on 18 July 2013.221 The forensic enterprise was
to try to distance Mr Parker from the conduct of Ms Zanatta on
and after 18 July 2013.
216. This was done in circumstances where Mr Parker had decided not
to provide a statement denying anything that Mr Fitzpatrick had
said. Without anything from Mr Parker, the CFMEU needed
some shred of direct evidence to challenge Mr Fitzpatrick in the
way described above. Mr Roberts’ statement served this purpose.
217. Mr Roberts’s statement that he had received the Zanatta
spreadsheets from Mr Fitzpatrick on 15 July 2013 looked highly
questionable at the time he made it. In this regard, at that time:
(a) there was no record to indicate that anyone had sought
and obtained from Superpartners or Cbus any document
containing the private contact details of Lis-Con
employees prior to Ms Zanatta’s request of Mr Walls on
18 July 2013;
221 Brian Fitzpatrick, 24/9/14, T:299.20-23.
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(b) the various internal Cbus and Superpartners emails
already in evidence in the period from 18 to 24 July
2013 created a strong impression that the Zanatta
spreadsheets had been created out of the documents that
Mr Walls sent Ms Zanatta on 22 July 2013. They were
identical, save that some columns had been deleted, and
evidence had already been given by Mr Walls that his
document was able to be manipulated in this way;222
(c) Mr Walls’ documents of 22 July 2013 were sent by Ms
Zanatta to Ms Butera by email on 24 July 2013,
referring to the documents as the data that Brian Parker
had requested.223
218. All of those matters were known to Mr Roberts at the time he
prepared his statement on 15 August 2014, and when he came to
give his evidence on the first occasion on 23 September 2014.
He was the most senior lawyer in the entire Division.224 He had
been closely following the hearings and evidence pertaining to
his Division.225
219. All of those matters would have given reasonably minded
persons in Mr Roberts’s position cause to have real doubt as to
whether they received the Zanatta spreadsheets from Mr
Fitzpatrick on 15 July 2013, and prior to 22 July 2013.
222 Anthony Walls, 7/7/14, T:116.22ff. 223 Zanatta MFI-1, 7/7/14, p 119ff. 224
Thomas Roberts, 24/10/14, T:1027.31-36. 225 Thomas Roberts, 24/10/14, T:1028.15-24.
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220. However, Mr Roberts was not minded to express any real doubt.
In the witness box on 23 September 2013, not only did he say
that his statement was true, he went further and said he was ‘very
sure’ about when he got the Zanatta spreadsheets from Mr
Fitzpatrick, and that he could ‘be sure of those matters’.226
221. There was no reason for Mr Roberts to have any confidence
about such matters. He had no diary note in which he recorded
receipt of those particular documents. There was no
contemporary correspondence. He was working off memory.
Even on his own evidence, he had only glanced at the documents
in the yellow folder that Mr Fitzpatrick handed him, and then put
them on his shelf where they proceeded to gather dust for almost
a year.227 His evidence was that he effectively did nothing with
these materials when they were given to him in July 2013, even
though he had been the one given responsibility by the National
Executive for marshalling the materials to use in the union’s fight
against Lis-Con.228
222. Mr Roberts’ evidence, therefore, lacked credibility when given.
In light of the matters set out above, known to Mr Roberts on 23
September 2014, he could not have been sure that the yellow
folder he received from Mr Fitzpatrick on 15 July 2013 included
the Zanatta spreadsheets. His evidence to the contrary was
226 Thomas Roberts, 23/9/14, T: 211.31-212.20. 227 Thomas Roberts, 23/9/2014, T:216.22-23, 216.44, 217.35-36. 228
Parker MFI-1, 3/10/14, p 76; Thomas Roberts, 23/9/14, T:218.34-35.
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exaggerated in order to assist his union and protect Mr Parker’s
position.
223. The credibility of Mr Roberts’ evidence is now in tatters, as a
result of events which have transpired since 23 September 2014,
including Ms Zanatta’s evidence of 3 October 2014, his own
performance in the witness box when recalled on 24 October
2014, and the content of the iMessages between Ms Butera, Ms
Zanatta and Mr Parker which were located later that day and
tendered on 28 October 2014.
224. On 3 October 2014, Ms Zanatta admitted that she had personally
delivered documents for Mr Parker on 29 July 2013. She said
she ‘suspected’ (i.e. knew) the documents she delivered were the
Zanatta spreadsheets, and she did not identify any other
documents as being ones she may have delivered. She positively
rejected a suggestion raised by the CFMEU’s counsel that the
document she delivered was a print out of the totality of the
attachment to Mr Walls’ email of 22 July 2013. That possibility
appears to have been raised in an attempt to save Mr Roberts’s
evidence and credit. That attempt failed.
225. Mr Roberts was summoned to be examined again on 24 October
2014 in light of the admissions of Ms Zanatta, and in light of
certain other evidence, including a Superpartners query log which
indicated that the only query that had been run in respect of Lis-Con was the one Mr Walls had run on 22 July 2013.
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226. On 24 October 2014, Mr Roberts was afforded the opportunity to
consider a substantial list of matters which all weighed strongly
against Mr Roberts having received the Zanatta spreadsheets in
the yellow folder on 15 July 2013.229 He was asked to agree that
reasonably minded persons would have accepted that their
recollection was probably faulty on that matter, and that if they
did get those documents, they must have received them sometime
after 22 July 2013.
227. Again, Mr Roberts proved to be not so minded. While he
accepted that his memory is not infallible, he was not prepared to
do better than to say that it was ‘possible’ that his recollection
was faulty.230
228. His refusal to make obviously appropriate concessions was
unimpressive. It reflected poorly on his credit. He was too
interested in trying to protect himself, Mr Parker and the
CFMEU’s cause. When this was put to him, and reference was
made to the fact that Ms Mallia had described working as a
lawyer for the CFMEU as a vocation rather than a job, Mr
Roberts played word games and pretended he did not understand
what the word vocation meant in that context.231 This, too,
reflected poorly on him.
229 Thomas Roberts, 24/10/14, T:1023ff. 230 Thomas Roberts, 24/10/14, T:1027.22-23. 231
Thomas Roberts, 24/10/14, T:1027.41ff.
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229. It is telling that, when Mr Roberts was recalled on 24 October
2014, he said he had something he wished to say by correction or
clarification. It concerned a conversation with Mr O’Grady
about the fact there was a file in his room.232 He said he made
this further statement out of a desire to be ‘open’.233 But this had
no real bearing on any issue.
230. The subject matter of this short new oral statement was
something he said had occurred to him after hearing Ms Zanatta’s
evidence on 3 October 2014.234 Mr Roberts was quite unable to
explain why, if he was seized with a spirit of openness, he did not
explain why this new information was held back from the
Commission until he stepped into the witness box on 24 October
2014.235
231. Worse for Mr Roberts, although saying he wished to be ‘open’,
his short additional oral statement did not allude to the fact that,
quite contrary to the evidence he gave on 23 September 2014 to
the effect that he was certain that he received the Zanatta
spreadsheets on 15 July 2013, since 3 October 2014 his state of
mind had changed, and he was now of the view that he was
possibly wrong about that. This was not volunteered by Mr
Roberts. He was not being open at all.
232 Thomas Roberts, 24/10/14, T:1021.32ff. 233 Thomas Roberts, 24/10/14, T:1039.24-25. 234
Thomas Roberts, 24/10/14, T:1038.26ff. 235 Thomas Roberts, 24/10/14, T:1039.17ff.
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232. When Mr Roberts was pressed further about the Zanatta
spreadsheets, and shown the originals, he admitted that he did not
know where those originals had come from, and whether they
had been in the records of the CFMEU at any time prior to the
preparation of his statement, and as such he was unsure whether
they had come from out of the yellow folder that Mr Fitzpatrick
said he had given him on 15 July 2013.236
233. It was then put to Mr Roberts that all he could really say was
what had been in his yellow folder when he handed it over to the
CFMEU’s lawyers in 2014. That was obviously the true
position. He evaded answering that question, and ultimately fell
back on the evidence he gave ‘on the last occasion’. The
problem with that answer was that the evidence he gave in
September 2014 was entirely different from that which he gave
on 24 October 2014.
234. So much for the submissions of counsel assisting.
235. Senior counsel for the CFMEU and Mr Roberts did not submit
that any of the arguments of counsel assisting attacking Mr
Parker, Ms Butera and Ms Zanatta were wrong. Nor did senior
counsel for the CFMEU and Mr Roberts submit that the yellow
folder he received on 15 July 2013 contained copies of the
Zanatta spreadsheets. Instead he submitted that Mr Roberts
believed that the yellow folder he received that day contained
236 Thomas Roberts, 24/10/14, T:1033.17-37.
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copies of the Zanatta spreadsheets.237 And he submitted that
there were documents available which might have formed the
reasonable basis of a view that the Zanatta spreadsheets had been
generated before 15 July 2013 and that this possibility had not
been foreclosed by the time Mr Roberts’s statement was provided
to the Commission.238 That last submission matured into a
submission that there was ‘an inference available that Mr
Fitzpatrick came into possession of similar or identical material’
to the Zanatta spreadsheets before 15 July 2013. Those last two
submissions must be rejected, because there is very little to
support them. But what of the primary submission about Mr
Roberts’s belief?
236. It is certainly correct that Mr Roberts did himself no favours by
the stubbornness with which he pursued the impossible task of
defending his memory against the relevant evidence. Early in his
evidence on 24 October 2014, six times Mr Roberts was asked
whether in the light of what had become known by that date, it
was likely or probable that his recollection of the yellow folder of
15 July 2013 contained the Zanatta spreadsheets was incorrect.
Each time he accepted that it was possible but not probable or
likely.239 The furthest he would go - and this was 25 pages of
transcript later - was to accept that the evidence suggesting that
the Zanatta spreadsheets did not come into existence until after
237 CFMEU submissions, Pt 8.3, 21/11/14, para 3. 238 CFMEU submissions, Pt 8.3, 21/11/14, paras 10-12. 239
Thomas Roberts, 24/10/14, T:1025.35-1027.23.
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15 July 2013 was ‘strong and there is a prospect that my recollection is incorrect’.240
237. A more convincing approach might have been to accept the strength of
the external evidence, to say that his memory was as it was, but to
concede readily and quickly that his memory had probably led him into
error. There is nothing shameful in that. Not only would the approach
have been more convincing, it would have caused less trouble for
himself. His evidence creates doubts about his intelligence. But does
it destroy his credibility?
238. The question of Mr Roberts’s credibility is not central to the issues
surrounding Cbus. Those issues are resolved by examining the
contemporary documents and circumstances, the express evidence of
Mr Fitzpatrick, and the lies of Mr Parker, Ms Butera and Ms Zanatta.
Whatever is to be made of Mr Roberts counts for very little either way
on those issues.
239. Counsel assisting submitted that Mr Roberts had exaggerated his
evidence about continuing to believe that the yellow folder contained
the Zanatta spreadsheets in order to assist the union and Mr Parker. To
reach that conclusion, even on the balance of probabilities, is a serious
thing in relation to an experienced solicitor. It would have grave
consequences for Mr Roberts, as senior counsel for the CFMEU
submitted.241 Senior counsel also pointed to the absence of cogent
evidence that Mr Roberts would
240 Thomas Roberts, 24/10/14, T:1052.22-23. 241 CFMEU submissions, Pt 8.3, 21/11/14, para 15.
1206
knowingly give false evidence for the benefit of another. To these
points might be added the fact, though senior counsel for the CFMEU
did not, that Mr Fitzpatrick thought Mr Roberts was ‘a very good
person’, and he thought him to be ‘straightforward’ up ‘until yesterday’
- Mr Roberts’s first visit to the witness box.1 Although, for the reasons
given by counsel assisting, there are grounds for not accepting Mr
Roberts’s evidence, the arguments outlined above lead to the conclusion
that, on balance, no finding should be made that Mr Roberts was lying
when he claimed to have the belief he did.
KPMG findings of widespread disclosures
240. On 11 May 2014, an article was published in the Sydney Morning
Herald titled ‘Super fund in union leak claim’ alleging that the private
financial details and home addresses of hundreds of non-union workers
employed by Lis-Con were disclosed by a Cbus employee to a whistle-blower, Mr Fitzpatrick, and to Mr Parker without authorisation. Cbus
subsequently engaged KPMG to provide forensic investigation services
on this matter.
241. A KPMG preliminary findings report of 25 June 2014 identified a
number of incidents relating to the improper release of private
information.2 The KPMG report revealed that between 1 January 2013
and 12 May 2014, there were 59 incidents where Cbus members'
personal information was e-mailed externally
1 Brian Fitzpatrick, 24/9/14, T:297.24-28. 2 Zanatta MFI-2, 7/7/14, tab 60, pp 613-638.
1207
from Cbus email accounts. In some instances, members’
information including tax file numbers was disclosed to trade
union officials. None of the incidents, however, appears to be
comparable with the leak under consideration in this Chapter.
242. The KPMG report244 did not identify the transmissions of the
information received by Ms Zanatta by email to any other parties.
However, the report notes that the nature of the information
provided to Ms Zanatta is similar to the information the subject
of the 11 May 2014 article. The report also noted that it had not
conducted further procedures to determine if the information was
leaked through other means such as hard-copy printouts or the
transfer of data using portable memory devices.
243. The submission of United Super Pty Ltd set out numerous
remedial and other measures which have been taken both before
and since October 2014.245 One of them was the dismissal of Ms
Zanatta. Another is a direction to Ms Butera not to perform any
duties and a placement of her on leave.246
Mr Atkin
244. No submissions adverse to Mr Atkin were made other than those
of Ms Butera and those of Mr O’Neill and the Lis-Con
companies. Ms Butera’s submissions strongly insinuate that Mr
244 Zanatta MFI-2, 7/7/14, tab 60, pp 625-626, para 3.4.2. 245 Outline of submissions of United Super Pty Ltd as trustee for Cbus, 14/11/14, paras 34-35. 246
Outline of submissions of United Super Pty Ltd as trustee for Cbus, 14/11/14, para 38.
1208
Atkin had instructed Ms Butera and Ms Zanatta to ensure
delivery of personal contact details to Mr Parker personally. The
O’Neill/Lis-Con submissions made several detailed points
questioning Mr Atkin’s evidence justifying the provision of
information by Cbus to the CFMEU and distancing himself from
the Butera/Zanatta disclosure.247 There are reasons why it is
undesirable to make findings about Mr Atkin at this stage. First,
Mr Atkin’s position is central to the debate between counsel
assisting and United Super Pty Ltd about the cultural problems, if
any, of Cbus. No findings one way or the other are being made
on that topic in this Interim Report. Secondly, Mr Atkin’s
position is central to the issue of what reasonable steps were
taken to preserve privacy. No findings one way or the other are
made on that either. It is desirable to stand over consideration of
the Butera insinuation and the O’Neill/Lis-Con criticisms in
relation to Mr Atkin until a future report.
C - CONCLUSIONS
245. Counsel assisting then turned to the conclusions to be drawn
from the facts in terms of the unlawful conduct of Mr Parker and
others, and also to deal with some broader policy issues
concerning Cbus.
246. Counsel assisting identified issues with respect to:
247 O’Neill/Lis-Con submissions, 14/11/14, paras 3(4), 11-21. See Outline of Submissions of United Super Pty Ltd in Reply to the Submissions of the Lis-Con Parties, 21/11/14, paras 7-10.
1209
(a) breaches of the Privacy Act 1988 (Cth) by Cbus;
(b) breaches of the Corporations Act 2001 (Cth) by Ms
Zanatta, Ms Butera and Mr Parker;
(c) breaches by Mr Parker of professional standards
expected of an officer of a registered organisation; and
(d) perjury.
247. Counsel assisting also identified two broader policy issues.
These were:
(a) cultural problems within Cbus, including the unhealthy
loyalty that Cbus employees have to the CFMEU; and
(b) problems with the current Cbus privacy policy and the
lack of policies and procedures within Cbus to prevent
occurrences of the kind dealt with in this case study
from occurring in the future.
Privacy Act 1988 (Cth) breaches
248. The Privacy Act 1988 (Cth) was substantially amended by the
Privacy Amendment (Enhancing Privacy Protection) Act 2012
(Cth). However, these amendments only commenced operation
on 12 March 2014, after the date of the leak of the material by
Cbus to the CFMEU. The conduct of Cbus and others falls to be
1210
assessed under the legislation in force as at July 2013. It is this
(now superseded) legislation that is addressed below.
249. Section 16A of the Privacy Act 1988 (Cth) provided that an
‘organisation’ must not do an act, or engage in practice, that
breached an approved privacy code that bound the organisation
or, if the organisation was not bound by an approved privacy
code, the National Privacy Principles (NPPs).
250. Section 13A further provided that an act or practice of an
organisation is an interference with the privacy of an individual if
the act or practice breaches an NPP that relates to the individual
(or an approved privacy code if it is covered by one).
251. The term ‘organisation’ was defined to include a body corporate
that is not a small business operator, registered political party,
agency, State or Territory authority or prescribed instrumentality
of a State or Territory (s 6C). A small business operator was one
with an annual turnover of $3 million or less in a financial year (s
6D).
252. As United Super Pty Ltd as trustee of Cbus is a body corporate
with an annual turnover of over $3 million, it was an
‘organisation’ under the Act. Further, as Cbus was not bound by
an approved privacy code, the NPPs applied in respect of
information held by it.
253. The NPPs, which were provided as a Schedule to the Privacy Act
1988 (Cth), provided principles regarding, among other things,
1211
the collection, use, disclosure and handling of ‘personal
information’. Section 6 of Privacy Act 1988 (Cth) defined
personal information as information or an opinion, whether true
or not, about an individual whose identity is apparent, or can
reasonably be ascertained from the information or opinion.
254. As to the disclosure of personal information, NPP 2.1 provided
that, subject to various exceptions, an organisation must only
disclose personal information for the primary purpose of
collection.
255. The Guidelines to the National Privacy Principles (NNP
Guidelines) in relation to NPP 2.1 recognised that:
(a) when an individual provides and an organisation
collects personal information they almost always do so
for a particular purpose - for example, to buy or sell a
particular product or receive a particular service;
(b) how broadly an organisation can describe the primary
purpose will need to be determined on a case by case
basis and it will depend on the circumstances.
256. Disclosure for a purpose other than the primary purpose (the
‘secondary purpose’) was not permitted unless it fell under the
following exceptions:
(a) where both of the following applied:
1212
(a) the secondary purpose was related to the primary
purpose of collection and, if the personal
information was sensitive information, directly
related to the primary purpose of collection; and
(b) the individual would reasonably expect the
organisation to use or disclosure the information
for the secondary purpose;248 or
(b) where the individual had consented to the disclosure;249
(c) where the organisation had reason to suspect that
unlawful activity had been, or was being or may be
engaged in, and used or disclosed the personal
information as a necessary part of its investigation of
the matter or in reporting its concerns to relevant
persons or authorities;250 or
(d) where the disclosure was required or authorised by or
under law.251
257. The NPP Guidelines dealt with the operation of these exceptions,
providing that, amongst other things:
248 National Privacy Principles 2.1(a). 249 National Privacy Principles 2.1(b). 250
National Privacy Principles 2.1(f). 251 National Privacy Principles 2.1(g).
1213
(a) for a secondary purpose to be related to the primary
purpose, it must be something that arose in the context
of the primary purpose. The test for what the individual
would ‘reasonably expect’ would be applied from the
point of view of what an individual with no special
knowledge of the industry would expect;252
(b) consent to the use of disclosure could be express or
implied. Implied consent would arise where the consent
may reasonably be inferred in the circumstances from
the conduct of the individual and the organisation. If the
organisation’s use or disclosure had serious
consequences for the individual, the organisation would
have to be able to show that the individual could have
been expected to understand what was going to happen
to information about them and gave their consent.253
258. NPP 4.1 provided that an organisation holding personal
information must take such steps as are reasonable in the
circumstances to protect the information from misuse,
unauthorised access or disclosure.
259. The APP Guidelines stated whether reasonable steps have been
taken to secure personal information will depend on the
organisation’s particular circumstances, including the sensitivity
252 Office of the Federal Privacy Commissioner, Guidelines to the National Privacy Principles, p 35-36. 253
Office of the Federal Privacy Commissioner, Guidelines to the National Privacy Principles, p 37.
1214
of the personal information, the harm that is likely to result to
people if there is a breach of security, how the organisation
stores, processes and transmits the personal information, and the
size of the organisation (the larger the organisation, the greater
the level of security required).254
260. NPP 5.1 required an organisation to set out a publicly available
privacy policy setting out the organisation’s general information
handling practice, as well as handling notices to people whose
information is collected setting out matters such as the purpose of
collection. This policy had to set out the main purposes for which
the organisation held the information and whether it contracted
out services that involved disclosing personal information.255
Cbus trust deed
261. The terms of the Cbus superannuation fund are set out in a trust
deed in respect of which United Super Pty Ltd, the trustee, is a
party.256
262. Clause 6.4 of the trust deed provides as follows:
Privacy
In accordance with the Relevant Law, the Trustee will hold, and treat as confidential, all records and information it may hold, receive
254 Office of the Federal Privacy Commissioner, Guidelines to the National Privacy Principles, p 45. 255
Office of the Federal Privacy Commissioner, Guidelines to the National Privacy Principles, p 47. 256 Atkin MFI-1, 3/10/14, tab 1.
1215
or become aware of in its capacity as Trustee in relation to Employers, Members or Beneficiaries and shall not disclose or make known any such records or information to any third party except as may be required in relation to the administration of the Fund or to facilitate the provision of services or Benefits to Members or as may be required by the Relevant Law or as it may otherwise be lawfully required to do except that a Member may authorise the Trustee to release information pertaining to that Member to a third party.
263. The term ‘Relevant Law’ is the subject of a lengthy definition
and includes, amongst other things the Privacy Act 1988 (Cth).
Contracts with members
264. The Member Declaration in Cbus’ Product Disclosure Statement
of 1 July 2013, which forms part of the suite of contractual
documents executed when a person becomes a member of the
Cbus fund, includes the following statement in relation to
privacy:257
Cbus collects, stores and discloses the personal information you provide for the specific purpose of administering your account and in accordance with the Fund Privacy Policy. Except where required by law, the Fund will not use your personal information for any other purpose. You can access the Cbus Privacy Policy at www.cbussuper.com.au or contact the Fund for a copy to be sent to you. By signing this application I consent to the use of my personal information for the establishment and ongoing administration of my superannuation account.
257 Supplementary Tender, Cbus Member Handbook for Industry Superannuation Product Disclosure Statement: 1 July 2013, 31/10/14.
1216
Cbus privacy policy
265. At the relevant time, Cbus had a member privacy policy. It was
referred to in the passage from the member declaration quoted
above. That policy included the following relevant passage:258
Cbus outsources the administration of its member and employer records to an external superannuation administration company and contracts with life insurers and other service providers to provide services to you. They are authorised to only use your personal information under the strictest confidence.
Cbus believes it is important that employer contributions are paid regularly and any late or non-payments are identified so steps can be taken to recover late contributions. As part of the process of monitoring contributions Cbus, from time to time, supplies fund sponsors with information on contributions received for members who are working on sites where an award, industrial agreement or enterprise bargain agreement is in place.
The Fund’s debt collection agency may also be provided with access to information for the purposes of collecting outstanding contributions. Confidentiality agreements with staff and service providers ensure your details are not passed on to any unauthorised third party.
Your personal information will not be used or disclosed for any other purpose without your consent, except where required by law.
266. The paragraph of the policy dealing with disclosure of
information to fund sponsors (such as the CFMEU) provided
only that Cbus supplies ‘information on contributions received’
to sponsors ‘as part of the process of monitoring contributions’.
Further, the only entity to which information would be provided
for the purpose of chasing arrears was the fund’s debt collection
agency.
258 Zanatta MFI-2, 7/7/14, tab 55, p 535.
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Privacy issues: analysis
267. It is useful to set out what United Super Pty Ltd, the trustee of
Cbus, thought of the conduct of Ms Butera and Ms Zanatta. It
submitted259 that their conduct:
was in breach of their duties to Cbus and the terms of their contracts of employment. For example:
(1) both Ms Butera and Ms Zanatta were in breach of their undertaking to keep Confidential Information (as defined) subject to limited permitted disclosures;
(2) Ms Butera acted contrary to the Code of Conduct, which included to “ensure that the Fund complies with all legal requirements” and “to maintain confidential information of the Fund”;
(3) each has breached their implied duty of fidelity to Cbus “not to engage in conduct which impedes the faithful performance of [her] obligations, or is destructive of the necessary confidence between employer and employee”; and
(4) Ms Butera has also breached her duty, as a senior employee, to disclose acts of misconduct by fellow employees. (footnotes omitted)
268. That is correct. The submissions of the trustee also accept,
correctly, the factual reasoning of counsel assisting.
269. What of Cbus? Counsel assisting submitted that Cbus breached
the Privacy Act 1988 (Cth), the Trust Deed, its own privacy
policy and its contracts with members. Mr Parker induced each
of those breaches, and that finding is quite independent of the
259 Outline of submissions of United Super Pty Ltd as trustee for Cbus, 14/11/14, para 31.
1218
question whether it was a crime or a civil wrong for him to have
done so.
270. First, the telephone numbers and other personal contact details of
employees of Lis-Con set out in the documents provided by Cbus
to Mr Parker constituted ‘personal information’ of ‘individuals’
within the meaning of those expressions in the Privacy Act 1988
(Cth).
271. Secondly, with regard to NPP 2.1, on a broad view, the primary
purpose of the personal information of each member was for the
proper administration by the trustee of that member’s account
within the superannuation fund. On a narrower view, the primary
purpose was to enable Cbus staff to contact the member in
relation to his or her superannuation account.
272. Thirdly, that information was used or disclosed by Cbus to Mr
Parker for quite a different purpose. It was disclosed in order to
meet a request by Mr Parker for that information so that CFMEU
staff could use that information to ring those individuals directly
and speak to them about whether Lis-Con was in arrears in
payment of superannuation entitlements, and if so, by how much.
273. That behaviour by the CFMEU forms no part of the proper
administration of the fund by Cbus or the administration of
services to Cbus members. Cbus had its own staff, including a
large number of former CFMEU organisers who became Cbus
organisers, who could contact members and deal with defaulting
employers. It also had a retained debt recovery agency that could
1219
pursue employers for arrears. What was contemplated by Mr
Parker, Ms Zanatta and Ms Butera was the use of personal
information in an entirely inappropriate and unauthorised way,
hence the secrecy at the time and the campaign of concealment
which continued all the way up to Ms Zanatta’s confession on 3
October 2014.
274. Fourthly, the circumstances were not such as to bring Cbus
within one of the exceptions to the general statutory prohibition
on disclosure of the information.
275. The consent exception in NPP 2 has no application. At no point
did any Lis-Con employees consent to Cbus disclosing their
personal contact details to the CFMEU for any purpose, let alone
for the purpose of enabling officers of the CFMEU to contact
them directly.
276. The privacy policy, as earlier noted, did not contemplate such a
disclosure. The only possible disclosure of information to the
CFMEU identified in that policy was of ‘information on
contributions received’, and only ‘as part of the process of
monitoring contributions’. As such, it was not suggested that
personal contact details of members would be disclosed to the
CFMEU. Further and in any event, the personal contact details
were not disclosed to the CFMEU for the purpose of monitoring
1220
contributions. The CFMEU already had information for this
limited purpose, in the form of the statement of arrears.260
277. The privacy policy further expressly provided that in respect of
chasing arrears, information may be provided to the trustee’s debt
collection agency (i.e. not the CFMEU). It also expressly stated
that the information would not otherwise be disclosed without the
member’s consent. No such consent was given.
278. As to the ‘secondary purpose’ exception in NPP 2, for much the
same reasons it has no application. For that exception to apply,
the secondary purpose would need to be related to the primary
purpose and the member would have to reasonably expect Cbus
to use or disclosure the information for that secondary purpose.
279. Neither of these requirements can be satisfied in circumstances
where Cbus’ own privacy policy expressly provides for
disclosure of limited information to the CFMEU for a limited
purpose (neither which applies in the present case for reasons
given above), and where the policy expressly stated that the
information would not otherwise be disclosed without the
member’s consent.
280. Having regard to the express terms of the privacy policy, the
reasonable expectation of members would be that, if their
260 Even if this were not so, a member’s signature on the application form does not constitute an informed consent of the kind required. The application form provides for a ’bundled consent’ of a kind which the Privacy Act regulator has indicated will not constitute an informed and effective consent for the purposes of the legislation.
1221
employer fell into arrears, Cbus would pursue the employer, if
necessary with the aid of its retained debt collection agency.
281. On no sensible basis could it be said that members of a
superannuation fund would reasonably have expected their
private telephone numbers to be handed out by the trustee of their
superannuation funds to a trade union so that trade union officials
could contact them directly, and out of the blue, to discuss their
superannuation position. The submissions of United Super Pty
Ltd accept this.261
282. Those calls and the retention of their private contact details by a
trade union, is a significant invasion on the privacy of these
members.
283. Counsel assisting submitted that Cbus acted inconsistently with,
and thus breached, the NPPs set out in subclause 2.1 and 4.1 by
providing the information to Mr Parker. This, in turn, constituted
a contravention by Cbus of section 16A of the Privacy Act 1988
(Cth). The submissions of counsel assisting set out above are
accepted.
284. Counsel for United Super Pty Ltd pointed out that the conduct of
Ms Butera and Ms Zanatta was in breach of their duties to Cbus
and unauthorised by Cbus. They also pointed to its clandestine
character. They in effect denied that Cbus had failed to take
reasonable steps within the meaning of NPP 4.1, while accepting
261 Outline of submissions of United Super Pty Ltd as trustee for Cbus, 14/11/14, para 43.
1222
that the steps taken had been insufficient. But they accepted that
Cbus had to take further steps to protect its members’
information from misuse, unauthorised access or unauthorised
disclosure. They looked to the Samuel Governance Review for
assistance along these lines.262
285. It is probably true that there has been under-analysis of the
internal position of Cbus, of how Ms Butera and Ms Zanatta
came to offend, and of what steps had been taken to stop that
type of conduct. Instead the focus has been on the relations
between officers of Cbus and the CFMEU. For that reason it is
desirable not to make a finding one way or the other until further
evidence comes to light.
Breach of trust and contract and inducement by Mr Parker
286. However, the reasoning of counsel assisting in relation to the
Privacy Act 1988 (Cth) does support the conclusion that Cbus has
acted in breach of clause 6.4 of Cbus’s trust deed, its own privacy
policy and the terms of its contracts with the Lis-Con members.
The submissions of United Super Pty Ltd accept this.263
287. It is not clear one way or the other whether Mr Parker had
sufficient notice of the terms of the contracts with Lis-Con
262 Outline of submissions of United Super Pty Ltd as trustee for Cbus, 14/11/14, para 45. 263
Outline of submissions of United Super Pty Ltd as trustee for Cbus, 14/11/14, para 46.
1223
members to render him liable for the tort of interference with
contract.
Possible breaches of the law and of CFMEU’s professional standards
288. The submissions of counsel assisting and the various parties deal
with possible breaches of the law, including in particular the
offences of perjury under s 6H of the Royal Commissions Act
1902 (Cth) and breaches of the Corporations Act 2001 (Cth).
The question of whether Mr Parker breached the CFMEU’s
professional standards was also debated.
289. As noted above, these are important questions. In due course, the
Commission will consider them in detail and make appropriate
recommendations. However, it is possible that further evidence
will be called in relation to the matters the subject of this Chapter
in 2015. In these circumstances, the Commission will not in this
Interim Report deal with these issues. Rather, resolution of these
issues, and conclusions as to whether recommendations will be
made, and if so on what terms, will be reserved for a future
report.
Cultural problems within Cbus
290. Counsel assisting posed two questions. Why did this happen?
Why did two senior employees, one an executive manager (a
direct report to the Chief Executive Officer) and a ‘responsible
1224
person’264 with 16 years of service, and the other, a senior adviser
with 15 years of service, carry out a most serious breach of the
fund’s policies and their clear duties to its members? Counsel
assisting then put the following submissions.
291. This is not a case of inadvertence or even recklessness. It is a
case of conduct undertaken by senior leaders with full knowledge
at the relevant time that their actions were so seriously improper
that discovery would put their future employment in jeopardy.
Nor can the conduct be attributed to a mere failure of corporate
governance by virtue of some deficiency in the privacy policies
and procedures of Cbus.
292. The conduct can only be explained as a symptom of an unhealthy
culture in play within at least the Workplace Distribution team at
Cbus.
293. In all organisations, culture is critical to compliance with the law.
Compliance policies and procedures are worthless in an
organisation where the underlying norms of behaviour and
attitude are in conflict with the intent of the policies.
294. Culture is a responsibility of leadership. Leaders set the tone. In
a corporation the board sets the tone from the top. The
Commission has not examined nor considered the function of the
264 Ms Butera was in a sufficiently senior role to be designated as a ‘responsible person’ for the purposes of CBUS’s ‘Fit and Proper Policy’ and compliance with Prudential Standard SPS 520 supervised by the Australian Prudential Regulation Authority.
1225
board of Cbus and makes no comment on it other than to note
that its composition, so divided in interests and agendas, poses
particular challenges in a modern corporate governance
environment.
295. The Commission is, however, well-placed to comment on the
operations of the Workplace Distribution team led by Ms Butera.
Whether or not the following observations reflect on the
performance of the Cbus board or the broader operations of Cbus
is not the subject of these submissions.
296. The Workplace Distribution team at Cbus does not have a strong
culture focussed on the integrity of Cbus, the interest of Cbus’
members, and strict compliance with rules and procedures.
297. Indeed the real problem is that there is no strong and independent
Cbus culture at all. The environment at management and
operational level is infected by the separate private interests of
the CFMEU, and a deep seated loyalty to those interests. Those
interests and loyalties are all pervasive, and prevent the
development of a true Cbus culture, where Cbus and its members
come first, at the expense of the CFMEU.
298. The scale of the cultural corruption is evident from the fact that
the relevant misconduct was carried out at the upper echelons of
management. It was not carried out by a wayward junior staff
member who did not know better. The fact senior management
are prepared to behave in this fashion is a strong indicator of the
existence of an invasive cultural problem. It is not just that they
1226
acted as they did. Their actions betray underlying attitudes. And
those attitudes would manifest themselves through the behaviour
of these managers in the workplace on a daily basis, across a
whole range of tasks, and would rub off on to the staff they are
supposed to be leading.
299. The problem is exacerbated by the fact that many of those staff
members (whose behaviour the leadership is influencing) are
highly receptive to misguided attitudes of this kind. This is
because many of the staff who are exposed to these attitudes and
behaviours from senior management are themselves former
employees or members of the CFMEU. They come with strong
loyalties to the CFMEU. Following their arrival, they are led by
senior managers who share those loyalties.
300. The problem is further aggravated by the fact that Cbus is, at
least to a degree, commercially dependent upon the CFMEU. It
relies on the CFMEU to promote it to builders, subcontractors
and workers. It relies on the fact that the CFMEU pattern
enterprise bargaining agreements nominate Cbus (and not one of
its competitors) as the default superannuation fund.
301. All businesses are dependent on their customers. In the ordinary
course, this leads businesses to seek to accommodate the wishes
of those customers. However, in the ordinary course, businesses
have a culture and a set of rules and policies that enable its
management and workers to know where to draw the line in
terms of the level of accommodation that can be given. That
culture does not exist in Cbus.
1227
302. Ultimately, the root cause of this cultural failure is the symbiotic
relationship between the CFMEU and CBUS. Many of the
employees of the Workplace Distribution team of CBUS are
drawn from the retired ranks of the CFMEU. Some of those
employees have concurrently held honorary positions with the
CFMEU. This creates a significant risk of conflict of interest.
Cbus’s current conflict policies have not been sufficient, on their
own, to deal with this at the operational level.
303. If Cbus is to recruit from the ranks of the CFMEU, much more
will need to be done by it to ensure that these workers receive a
strong and continuous injection of an independent and law
abiding Cbus culture through training, performance reviews, and
substantive exposure to employer representatives and non-union
members of Cbus so that they can develop a more balanced
perspective. Those injections will need to be administered by
senior managers who are (and who are seen to be) sufficiently
divorced from the CFMEU.
304. Counsel for United Super Pty Ltd denied the propositions set out
above. The submissions of United Super Pty Ltd are full of
interesting detail about the superannuation industry in general
and Cbus in particular, though these are largely beside the present
point.
305. Counsel for United Super Pty Ltd made several criticisms of the
submissions of counsel assisting. One was that to criticise the
role of CFMEU former employees or members sat uncomfortably
with equal opportunity and freedom of association laws. Another
1228
was that it overlooked the historical role played by unions in
promoting superannuation entitlements for employees and
monitoring employer compliance. Another criticism concerned
the reference to the division of the board ‘in its interests and
agendas’.265 These criticisms were not entirely convincing.
They did not face up to a fundamental point raised by Mr O’Neill
and Lis-Con - the need to ensure that Cbus employees are not
placed in a position of conflict between duty and interest or duty
and duty.266
306. However, it was submitted that no adverse finding should be
made about ‘cultural corruption’ at Cbus. For the moment, that
submission should be accepted, but only for the moment. A
longer consideration of the evidence, particularly in view of the
Cbus board’s recent appointment of the Samuel Governance
Review, may cast further light on the problems which weigh on
counsel assisting. It may also be necessary to return to consider
the position of Cbus if further evidence emerges, whether from
the Samuel Governance Review or otherwise.
307. It is desirable to remember one point on which counsel assisting
and counsel for United Super Pty Ltd collide. Counsel for United
Super Pty Ltd submitted:267
265 Outline of submissions of United Super Pty Ltd as trustee for Cbus, 14/11/14, paras 39, 40. 266
O’Neill/Lis-Con Submissions in Reply to Submissions by Interested Parties, 21/11/14, para 18. 267 Outline of submissions of United Super Pty Ltd as trustee for Cbus, 14/11/14, para 41.
1229
Mr Atkin noted that culture was an issue that should be reviewed by Cbus as part of its review, but he did not agree there was a widespread cultural issue.268 It was not put to Mr Atkin that there were systemic cultural issues at Cbus. Mr Atkin did not agree that there was a “cultural difficulty … because of their background with a particular union”. Rather, Mr Atkin said that “the fact that they come from a union background assists their understanding of the environment that they work within and I’ve got confidence in the work that they do”.269 Cbus’ results in the Great Place to Work Institute’s 50 Best Workplaces study also suggest that there are no systemic cultural issues, with 95% of staff surveyed this year indicating that they are “proud to tell others I work at Cbus”, and where credibility, respect and fairness are all rated above 80. 270
308. In reply, counsel assisting submitted:271
While Cbus contends that the Butera/Zanatta leak was, in effect, an isolated act by rogue employees, that contention does not address the fact that Ms Butera and Ms Zanatta were members of senior management, who held views so strongly supportive of the CFMEU that they were unable to look after the interests of Cbus and its members. It is likely that these prejudicial views and tendencies manifested themselves on a daily basis in their attitudes to their work, towards employers, and in response to favours and views expressed by CFMEU officers. The fact that Ms Zanatta and Cbus [were] prepared to comply without question with the CFMEU’s instructions to sue Lis-Con is an illustration of this. It is difficult to see how these deeply engrained prejudices held by senior management could not have permeated through to the more junior staff who looked up to and learned from these member of management, particularly where the more junior staff were themselves recruits from the CFMEU. The fact there may have been many occasions upon which information has leaked from Cbus to the CFMEU is supportive of this proposition.
Mr Atkin, the Cbus CEO, accepted in his evidence that KPMG had identified a ’cultural disconnect’, that departures from policies and procedures often relate to such cultural problems, that one of the cultural issues that Cbus needed to address was the fact that a large number of Cbus employees are former union employees, and that
268 David Atkin, 23/10/14, T:908.31-34. 269 David Atkin, 23/10/14, T:907.36-40. 270
Cbus Annual Report 2013/2014, p 65. 271 Submissions in reply to Cbus of counsel assisting, 25/11/14, paras 27-28.
1230
the evidence was sufficient to demonstrate the need for an examination of this cultural issue.272
309. Ms Butera, too, criticised Mr Atkin’s claim that there was no
conflict of loyalties in Cbus staff who were members, former
members or employees of the CFMEU being loyal to the union
but also having to be loyal to Cbus. She said that claim was
unsupported.273 This is true. Ms Butera, whose written
submissions were much more frank than much of what she said
in her testimony, also criticised the Cbus approach of treating
herself and Ms Zanatta as rogue employees responsible only for
an isolated incident unrelated to the Cbus/CFMEU culture. She
pointed to her distinguished record, which involved working
closely with employer groups as well as unions throughout her
professional life. She claimed to be devoted to her job, to have a
high professional reputation, to be loyal to the interests of Cbus,
and to be deeply respected there. There is no reason to doubt
these claims. Nor, she submitted, was the Butera/Zanatta
incident isolated. She pointed to the McWhinney leak, the Gaske
leaks, and the findings of the KPMG report which ‘details an
apparently liberal approach taken by the unions to requesting
member information from Cbus, and a history of Cbus complying
with the union’s requests’.274 Hence, Ms Butera submitted that
she was unlikely to have acted as a rogue in blind loyalty to the
CFMEU in disregard of her professional obligations and the
272 David Atkin, 23/10/14, T:907-908. 273 Submissions in reply on behalf of Maria Butera, 21/11/14, para 2-4. 274
Submissions in reply on behalf of Maria Butera, 21/11/14, paras 5.
1231
interests of Cbus members.275 Therefore, she submitted that the
‘more likely thesis’ was:276
(a) The leak to Parker of the personal details of Cbus members who were Lis-Con employees cannot logically be isolated to the behaviour of two rogues inside Cbus who surreptitiously operated independently of instructions. The leak could only have taken place on a request or instructions to give Parker private details of the relevant Cbus members in a pro-union working environment where leaks to unions were not generally frowned upon; and
(b) The leak of the Cbus private member details to Parker in those circumstances was a function of the cultural dilemma inside Cbus between loyalty to members and loyalty to the unions (especially the CFMEU) rather than a demonstration of the absence of the cultural dilemma. Zanatta’s actions represent a cultural loyalty to the union movement inside Cbus. Her behaviour was not the anomalous behaviour of a rogue.
310. While Ms Butera did not explain explicitly where she herself fits
into this thesis, it may have considerable force.
311. The friction between these competing points of view may
generate some useful energy in the coming months.
D - RETURNING THE ZANATTA SPREADSHEETS
312. Mr Roberts accepted that the Zanatta spreadsheets, which the
CFMEU had in its possession, were not the CFMEU’s. He said
that the CFMEU would not give them back because they were
being used for the purposes of the inquiry. He said there were no
copies of the Zanatta spreadsheets ‘floating around’ Slater &
275 Submissions in reply on behalf of Maria Butera, 21/11/14, para 8. 276 Submissions in reply on behalf of Maria Butera, 21/11/14, para 9.
1232
Gordon. He also said that the only copies in the possession of the
CFMEU were copies that exist for the purposes of the
Commission and they were part of the files of the lawyers.277
Some may think it strange, after this doubtless sincere but
somewhat informal testimony, that no precise audit of the Zanatta
spreadsheets seems to have taken place with a view to the
CFMEU informing Cbus of how many are retained and why, and
returning to Cbus those which are surplus to legitimate
requirements. The CFMEU treats itself as the victim of rogue
activity by Ms Butera, Ms Zanatta and Mr Fitzpatrick. It makes
no claim that it was entitled to receive the Zanatta spreadsheets.
It is, therefore, strange that it does not return them or explain why
it should not have to.
277 Thomas Roberts, 24/10/14, T:1041.4-1042.32.
1233
ANNEXURE A
EXAMPLES OF FALSE EVIDENCE GIVEN BY MS BUTERA
Examples of the false evidence given by Ms Butera in the hearings on 7
July 2014, 23 October 2014 and 28 October 2014 include:
(a) she asked Ms Zanatta to make enquiries in relation to
the arrears status of Lis-Con.278 The enquiry that Ms
Zanatta was being asked to make was a routine
enquiry,279 and would involve Ms Zanatta collating the
arrears information and ringing Mr Parker to tell him
about the results, and this is what occurred;280
(b) the query and the response to it was ‘unremarkable’;281
(c) she did not know how the personal information of Lis-Con employees ended up with Mr Parker;282
278 Maria Butera, 7/7/14, T:77.23-26. 279 Maria Butera, 7/7/14, T:79.5-6. 280
See, for example, Maria Butera, 7/7/14, T:77.24-26, 83.44-46. 281 Maria Butera, 7/7/14, T:83.40-42. 282
Maria Butera, 7/7/14, T:83.33-35.
1234
(d) ‘I had no prior knowledge, involvement or participation
in the release of that information’.283 This was
something she repeated, even in the face of the
iMessages of 26 July 2013, and even after she was
given an open opportunity to retract this evidence in the
face of those messages;284
(e) that the only discussion she had with Ms Zanatta was
about her telling Mr Parker what the arrears position
was, and they discussed nothing else;285
(f) that she had ‘no idea’ that Ms Zanatta was making
arrangements about a trip to Sydney;286
(g) that her phone call with Mr Parker at 2.40pm on 26 July
2013 was to say no more than that she had actioned his
request on the Lis-Con arrears, and to discuss a
sponsorship program;287
(h) that she rang Mr Parker on this occasion (even though
she knew Ms Zanatta had been tasked to tell him about
the Lis-Con arrears) as a ‘goodwill’ gesture;288
283 Maria Butera, 23/10/14, T:934.1-2. 284 Maria Butera, 28/10/14, T:1132.8-19. 285
Maria Butera, 23/10/14, T:954.40-955.5. 286 Maria Butera, 23/10/14, T:958.38-39. 287
Maria Butera, 23/10/14, T:959.16ff. 288 Maria Butera, 23/10/14, T:960.31-32.
1235
(i) she had no discussion with Ms Zanatta about what she
had done on Monday, 29 July 2013;289
(j) she was not involved in the leak and did not work in
concert with Ms Zanatta (‘I totally refute that’);290
(k) Ms Zanatta acted on her own and off her own bat
entirely;291
(l) to her knowledge, Ms Zanatta did not involve anyone
else at Cbus;292
(m) Ms Zanatta was acting without her knowledge and
approval;293
(n) Ms Zanatta never communicated with her about
dropping off information to Brian Parker’s PA;294
(o) she did not set about with Ms Zanatta working out how
to get that information to Mr Parker (which she said
even in the face of the iMessages of 26 July 2013);295
289 Maria Butera, 23/10/14, T:965.47-966.2. 290 Maria Butera, 23/10/14, T:967.43-47. 291
Maria Butera, 23/10/14, T:968.2-4. 292 Maria Butera, 23/10/14, T:968.12-14. 293
Maria Butera, 23/10/14, T:968.21-23. 294 Maria Butera, 28/10/14, T:1122.42-44. 295
Maria Butera, 28/10/14, T:1132.44-46.
1236
(p) she did not know on 26 July 2013 that Ms Zanatta was
going to go to Sydney (which she said even in the face
of the iMessages of 26 July 2013);296
(q) she did not know what information Ms Zanatta was
dropping off (which was said in the face of the
iMessages of 26 July 2013);297
(r) the words in the iMessage that she sent to Ms Zanatta
on 26 July 2013 ‘could mean anything’;298
(s) she did not know what information Ms Zanatta dropped
off.299
296 Maria Butera, 28/10/14, T:1131.28-30. 297 Maria Butera, 28/10/14, T:1134.40. 298
Maria Butera, 28/10/14, T:1135.8. 299 Maria Butera, 28/10/14, T:1135.42.
1237
ANNEXURE B
EXAMPLES OF THE FALSE EVIDENCE GIVEN BY
MS ZANATTA
The false evidence given by Ms Zanatta included the making of the
following affirmed statements:
(a) that she was not personally involved in the provision of
information concerning Lis-Con employees to the
CFMEU;300
(b) that there was never an occasion on which she
participated in the release of members’ information to
anyone at the CFMEU;301
(c) that she had never provided the CFMEU with members’
addresses and telephone numbers;302
(d) that when Mr Walls sent her the query results she was
overwhelmed by the amount of private information that
300 Lisa Zanatta, 7/7/14, T:21.7-9. 301 Lisa Zanatta, 7/7/14, T:21.27-32. 302
Lisa Zanatta, 7/7/14, T:21.34-36.
1238
was provided and she wanted to make sure it was
secure;303
(e) that she had been told that there was data released to the
CFMEU, but she could not confirm that the data in the
attachments to Mr Walls’ email of 22 July 2013 was
released to the CFMEU;304
(f) that she did not know the contents of the data that was
released to the CFMEU;305
(g) that she had not seen the contents of the data that was
released to the CFMEU;306
(h) that she was unaware when the data was released to the
CFMEU;307
(i) that she was unaware who released the data to the
CFMEU;308
(j) that she had ‘no idea’, ‘absolutely none’ about the
disclosure of the information to CFMEU;309
303 Lisa Zanatta, 7/7/14, T:34.4-7. 304 Lisa Zanatta, 7/7/14, T:34.42-44. 305
Lisa Zanatta 7/7/14, T:35.3-4. 306 Lisa Zanatta, 7/7/14, T:35.3-4. 307
Lisa Zanatta, 7/7/14, T:35.28. 308 Lisa Zanatta, 7/7/14, T:35.28.
1239
(k) that she did not know how the information found its
way to the CFMEU in New South Wales;310
(l) that the information did not come from her to the
CFMEU;311
(m) that at no stage did she pass the information on to the
CFMEU;312
(n) that she has never released Cbus data to a third party
containing the addresses, mobile phone numbers and
email addresses of members;313
(o) that she did not pass on the data to CFMEU;314
(p) that she was unaware that the query that she received
from Mr Walls had been leaked anywhere. ‘I had no
idea. How many times do I need to tell you that’;315
(q) that she did not know what methods were employed to
enable the material to be passed from Cbus to the
CFMEU;316
309 Lisa Zanatta, 7/7/14, T:36.17-22. 310 Lisa Zanatta, 7/7/14, T:38.22-24. 311
Lisa Zanatta, 7/7/14, T:38.26-28. 312 Lisa Zanatta, 7/7/14, T:39.16-17. 313
Lisa Zanatta, 7/7/14, T:43.40-42. 314 Lisa Zanatta, 7/7/14, T:45.7. 315
Lisa Zanatta, 7/7/14, T:49.37-39.
1240
(r) that she had come to Sydney on 29 July 2013 for the
purpose of a Cbus Property and joint unions meeting
and had gone to the locations and made the calls
described earlier in these submissions;317
(s) that she had not made up the false story described in the
previous sub-paragraph;318
(t) that she did not arrange for Ms Heintz to book her trip
to Sydney on 26 July 2013 (‘I absolutely did not’);319
(u) that she did not ring Mr Parker and tell him that she
would bring the Zanatta spreadsheets to Sydney (‘That’s
absolutely incorrect’);320
(v) that she did not arrange for the Zanatta spreadsheets to
be couriered to her home so that she could take it to
Sydney the following Monday;321
(w) that she had not arranged with Mr Parker for her to
bring the Zanatta spreadsheets to Sydney;322
316 Lisa Zanatta, 7/7/14, T:59.43-46. 317 Lisa Zanatta, 3/10/14, T:732.38ff. 318
Lisa Zanatta, 3/10/14, T:736.7-10. 319 Lisa Zanatta, 3/10/14, T:742.37-39. 320
Lisa Zanatta, 3/10/14, T:742.44-47. 321 Lisa Zanatta, 3/10/14, T:744.44-745.13. 322
Lisa Zanatta, 3/10/14, T:745.25-26.
1241
(x) that (even after being shown the taxi records indicating
she had gone to the CFMEU office) her recollection was
that the meeting with Cbus Property (which she had
made up) was to be held on 29 July 2013.323 This
shows that, but for the adjournment that was then
granted, Ms Zanatta would have attempted to continue
to give false evidence to the Commission about what
had occurred.
323 Lisa Zanatta, 3/10/14, T:748.4-6.
1242
CHAPTER 8.4
THE CONVERSATION OF 27 MARCH 2013
Subject Paragraph
A - OVERVIEW 1
B - RELEVANT FACTS 4
Brian Fitzpatrick 4
Brian Parker 7
Darren Greenfield 10
Defaults by ‘Active and ‘Elite’ companies in 2013 12
Knowledge and inaction of Mr Greenfield 22
Action taken by Mr Fitzpatrick 26
Mr Fitzpatrick receives a death threat 46
Mr Greenfield’s version of the call 85
Initial failure to investigate 124
Initial attack on Mr Fitzpatrick 130
The McDonald Report 133
Ms Mallia’s report 144
1243
Subject Paragraph
Persistent attempts to remove Mr Fitzpatrick 156
Mr Parker’s misleading statements to the public and members 186
The Slevin investigation 195
C - LEGAL AND OTHER ISSUES 198
Use of a carriage service to make a death threat 198
Use of a carriage service to menace 203
Common assault 208
Unprofessional conduct of Mr Greenfield, Ms Mallia and Mr Parker 214
1244
A - OVERVIEW
1. This chapter concerns the conduct of officers of the New South Wales
Branch of the Construction and General Division of the CFMEU
(NSW Branch) towards Mr Brian Fitzpatrick, then an organiser in that
branch. The officers in question are Mr Darren Greenfield (organiser),
Mr Brian Parker (State Secretary) and Ms Rita Mallia (State President).
Its title has been selected in deference to the CFMEU’s opposition to
the title ‘death threat’ by Mr Greenfield in the corresponding part of
counsel assisting’s submissions.1
2. There was a conflict of testimony between Mr Fitzpatrick and Mr
Greenfield which was in a sense narrow, but was sharp and not easy to
resolve. Counsel assisting submitted that it should be resolved in the
following way. Their analysis is generally sound, but the submissions
of the CFMEU, Mr Parker, Mr Greenfield and Ms Mallia will have to
be examined at relevant points.
3. The findings include the following:
(a) on 27 March 2013 Mr Greenfield made an anonymous,
violent and abusive telephone call to Mr Fitzpatrick, during
which he threatened to kill him;
(b) by so acting, Mr Greenfield may have committed several
criminal offences and may have breached the CFMEU’s
published standards of behaviour in a most egregious way;
1 CFMEU submissions, 14/11/14, Pt 8.4, para 1.
1245
(c) Mr Parker shied away from carrying out any rigorous or
comprehensive investigation into the incident, avoided
arriving at any properly considered conclusion, and generally
sought to whitewash the incident rather than discipline Mr
Greenfield appropriately;
(d) Mr Parker set about marginalising and attempting to remove
Mr Fitzpatrick from the CFMEU after he complained about
the way in which the incident had been handled and about the
nature and extent of the union’s dealings with companies
associated with Mr George Alex; and
(e) the failure of Mr Parker to take any appropriate action in
response to Mr Fitzpatrick’s complaints about the death threat
incident represented a dereliction of his duty as a union
official and, coupled with his attempts to have Mr Fitzpatrick
removed, fell short of the professional standards expected of
him as an officer of the CFMEU.
B - RELEVANT FACTS
Brian Fitzpatrick
4. Mr Fitzpatrick is a veteran of the union movement. He started working
at the NSW Branch in 1988, and remained there for the following 25
years.2 In his closing oral submission, his counsel correctly described
him as ‘an old school trade unionist who lived and breathed the
2 Brian Fitzpatrick, witness statement, 14/7/14, para 9.
1246
CFMEU for more than 25 years. He fought very hard for workers’
rights’. His counsel said that Mr Fitzpatrick ‘went that extra yard
because he actually cared.3 Senior counsel for the CFMEU, in his
closing oral submissions which immediately succeeded those of Mr
Fitzpatrick’s counsel, did not challenge that characterisation.
5. For much of his long career with the CFMEU, Mr Fitzpatrick was an
organiser, or a co-ordinator of teams of organisers, responsible for
ensuring that workers were being appropriately looked after by their
employers.
6. During 2013, and for many years prior to that, he was based at the head
office of the NSW Branch at Lidcombe.
Brian Parker
7. Mr Parker was elected Secretary of the NSW Branch by the members
in late 2011. He works out of the Lidcombe office of the NSW
Branch. He has been an official of the Branch for 25 years. He held
various elected positions before 2011. He was well regarded by Mr
Donald McDonald AM, a distinguished former Secretary of the
Branch, in point of integrity, commitment, honesty and high standing
among the members.4
8. Mr Fitzpatrick and Mr Parker were long-time friends, having started at
the union at about the same time and having worked closely alongside
each other across many years.
3 Morrison, 28/11/14, T:5.27-30. 4 Donald Patrick McDonald, witness statement, 15/8/14, para 17.
1247
9. Although Mr Parker comes from a strong labour family and has been a
unionist for a long time, his lifestyle and tastes are perhaps not those of
the ordinary worker. According to Mr Fitzpatrick, he has a reputation
for mixing with the rich and famous,5 and is nicknamed ‘Sparkles’. At
one point his wife was part owner of a race horse along with the wives
of Jim Byrnes and a criminal identity Denis Delic (now deceased). Mr
Parker read the eulogy at Mr Delic’s funeral.
Darren Greenfield
10. Darren Greenfield is an organiser who works for the NSW Branch. He
was elected to that position in 2012. Unlike Mr Parker and Mr
Fitzpatrick, he is based in the Sydney city office of the NSW Branch.
Mr Greenfield has had extensive experience in the construction
industry for over 30 years. In his years as a scaffolder, he served as a
delegate for the NSW Branch for 12 years, and was on the Branch
Committee of Management in the years 2000-2004.6 Mr Greenfield
used to work for a scaffolding company. When that company went out
of business in about 2010, Mr Parker recruited him to become an
organiser for the union. According to Mr Fitzpatrick, Mr Greenfield
came to the union with a fierce reputation for assaulting people.7
There is no evidence that he actually has a disposition for physical
violence. But whether he actually has does not matter: it is relevant to
the events of 27 March 2013 that Mr Fitzpatrick believed that he had
that reputation.
5 Brian Fitzpatrick, witness statement, 14/7/14, para 29. 6 Darren Greenfield, witness statement, 15/8/14, paras 2-5. 7
Brian Fitzpatrick, witness statement, 14/7/14, para 32.
1248
11. Initially Mr Greenfield’s areas of responsibility as a union organiser
were spread across various different areas. However at some point Mr
Parker agreed to give Mr Greenfield exclusive responsibility for the
scaffolding sector.8
Defaults by ‘Active’ and ‘Elite’ companies in 2013
12. As at mid-March 2013 Mr George Alex was one of the persons who
stood behind a number of companies in the construction industry. One
of those companies was Active Labour Pty Ltd (Active Labour). It
was a labour hire company. Another company was Elite Holdings
Group Pty Ltd (Elite Holdings), a scaffolding company. Those
companies had entered EBAs signed by officers of the CFMEU.
13. The relationships between, on the one hand, Mr Alex, his companies
and associates, and, on the other hand, the CFMEU and its officials, is
the subject of an ongoing investigation to be continued next year.
What is said here does not prejudge the outcome of that investigation.
What is said here is said only as a background to the conversation of
27 March 2013.
14. In mid-March 2013 both Active Labour and Elite Holdings were in
arrears in relation to moneys owed by them in respect of workers’
entitlements, including superannuation and redundancy payments.
15. Mr Sammy Manna and Mr Jock Miller were the two organisers with
day to day carriage of labour hire issues. Each reported to Mr
8 Brian Fitzpatrick, witness statement, 14/7/14, para 33.
1249
Fitzpatrick, who was a co-ordinator. Mr Greenfield was the organiser
with day to day responsibility for the scaffolding sector.
16. In mid-March 2013, a union delegate working on a building site in
Crows Nest, Sydney, met Mr Fitzpatrick at the Lidcombe head office.
He said to Mr Fitzpatrick:9
I need some help. I’ve got blokes on the site who are not being paid on time and whose entitlements are not being paid. It’s the scaffolders and the body hire men. Greenfield has been out and promised to fix the problem, but weeks have gone by and nothing’s been done.
17. Mr Fitzpatrick undertook to look into the matter.
18. Mr Fitzpatrick came to learn that the labour hire company was Active
Labour, and the scaffolding contractor was Elite Holdings. He was
familiar with Active Labour and knew that Mr Alex was behind that
company. It was at this time that he came to discover that Mr Alex
was also behind Elite Holdings.10
19. In the course of his investigations into the matter, he followed his
regular procedure of checking with Cbus (the superannuation fund
manager to which Mr Alex’s companies were supposed to be making
contributions) and ACIRT (a redundancy fund to which Mr Alex was
supposed to be making payments per employee) to see whether Active
Labour and Elite Holdings were in fact paying employee
entitlements.11
9 Brian Fitzpatrick, witness statement, 14/7/14, para 41. 10 Brian Fitzpatrick, witness statement, 14/7/14, para 42. 11
Brian Fitzpatrick, witness statement, 14/7/14, para 44.
1250
20. He discovered, through this process, that those companies had not been
paying employees their entitlements. Indeed they were very
substantially in arrears. The deficit was in the hundreds of thousands
of dollars.12
21. Elite Holdings had not paid workers’ entitlements to ACIRT and Cbus
for the period September to November 2012 or for March 2013. About
$100,000 was owed.13 Active Labour was also heavily in arrears.
Knowledge and inaction of Mr Greenfield
22. One of the concerns raised for Mr Fitzpatrick’s attention was that Mr
Greenfield knew about the arrears but was not taking any action.
23. Mr Greenfield has given conflicting accounts over time as to what he
knew about the extent of Elite Holdings’s arrears, and action taken by
him in respect of those arrears in late 2012 and early 2013. Indeed the
accounts have been markedly different.
24. Ms Mallia interviewed Mr Greenfield in relation to this subject on 16
May 2013. On that occasion, as Ms Mallia’s contemporaneous notes
of the meeting make plain, Mr Greenfield effectively admitted his
inaction in the period prior to mid-March 2013, but sought to explain it
away on the basis that he had been heavily committed on other matters,
including in particular issues arising during the decline of Action
Scaffolding and Built Scaffolding.14 Mr Greenfield’s oral evidence
12 Brian Fitzpatrick, witness statement, 14/7/14, para 44 13 Greenfield MFI-2, p 38. 14
Greenfield MFI-2, pp 7-11.
1251
that he had given a different explanation to Ms Mallia15 stands in
contrast with the detailed nature of the notes taken by Ms Mallia.
25. In his evidence, Mr Greenfield set out an entirely different version of
events, namely that he knew about the Elite Holdings’ arrears position
in 2012 and took action to ensure that some outstanding payments were
made.16 First, it is inconsistent with the account he gave Ms Mallia in
May 2013. Secondly, it is not supported by any documents. The
union’s wage claim records in relation to Elite Holdings post-date
March 2013, and there is no wage claim record at all in respect of
2012. Thirdly, Mr Greenfield’s evidence is inconsistent with the fact
that Elite Holdings was heavily in arrears throughout the last quarter of
2012. But for present purposes it is unnecessary to resolve these
conflicts.
Action taken by Mr Fitzpatrick
26. Mr Fitzpatrick responded to the complaint made to him in respect of
the Crows Nest site by contacting Mr Doug Westerway, who he
understood to be one of the people Mr Alex had put forward to ‘front’
Active given that Mr Alex was himself an undischarged bankrupt.17
Mr Greenfield knew Mr Westerway and understood him to be
employed as a manager of Elite.18
15 Darren Greenfield, 3/10/14, T:703.8. 16 Darren Greenfield, 3/10/14, T:702.6-20; Darren Greenfield, witness statement, 15/8/14, paras 15-20. 17
Brian Fitzpatrick, witness statement, 14/7/14, paras 47-48. 18 Darren Greenfield, witness statement, 15/8/14, para 22.
1252
27. Mr Fitzpatrick did not get a clear answer from Mr Westerway as to
when the outstanding entitlements would be paid. He therefore
contacted Mr Alex directly and told him that he had 24 hours to pay all
of his labourers up to date, and that he had a week to fix up three out of
the five months that he was behind on superannuation and redundancy
payments.19
28. Mr Alex responded: ‘Look, that’s alright. I will fix that up. I’ve got a
cheque coming from Ralan Constructions on Friday. That will enable
me to pay 3 months of Cbus (super) and ACIRT (redundancy) for the
body hire.’20
29. On the Friday Mr Alex had indicated payment would be made, Mr
Fitzpatrick telephoned Mr Steve Nolan, the principal from Ralan
Constructions, to check that he had made the payment to Mr Alex. In
that conversation Mr Nolan said that there was no amount due to be
paid to Mr Alex that day.21
30. Later that same day Mr Fitzpatrick received a call from Mr Westerway
to say that Mr Alex was aggravated about the fact that Mr Nolan had
been spoken to. Mr Fitzpatrick said ‘Well mate, so be it, but my
concern is not with him. My concern is with my job and what I have
got to do, and that’s part of our work and we will do it.’22
19 Brian Fitzpatrick, witness statement, 14/7/14, para 48. 20 Brian Fitzpatrick, witness statement, 14/7/14, para 49. 21
Brian Fitzpatrick, witness statement, 14/7/14, para 50. 22 Brian Fitzpatrick, witness statement, 14/7/14, para 51.
1253
31. Mr Alex then rang Mr Fitzpatrick and spoke to him in an angry and
threatening tone. He told Mr Fitzpatrick not to ring his clients, and a
heated argument ensued. During the course of that argument Mr
Fitzpatrick indicated that he did not think much of the fact that workers
had not been paid what they were owed.
32. Mr Fitzpatrick then told Mr Alex ‘how things were going to work from
the union’s point of view’.23 Mr Alex’s reaction to this was to say ‘You
will do as you are told.’24 Mr Alex also said words to the effect that he
wouldn’t put up with the union ‘not keeping its deals’.
33. After the telephone call between Mr Fitzpatrick and Mr Alex, the
former went to see Mr Parker immediately to describe what had
occurred, and said ‘You better get the bloke in here. We have got to
read him the riot act because he is going to start telling us how to run
things.’25 Mr Parker acquiesced.
34. The following week a meeting took place at the union’s Lidcombe
office between Mr Parker, Mr Fitzpatrick, Mr Alex, Mr Westerway and
Mr Joe Antoun (an associate of Mr Alex who has since been shot
dead).26 Mr Fitzpatrick noted that Mr Alex was ‘very much in charge
of this group and did the talking’.27
23 Brian Fitzpatrick, witness statement, 14/7/14, para 52. 24 Brian Fitzpatrick, witness statement, 14/7/14, para 52. 25
Brian Fitzpatrick, witness statement, 14/7/14, para 53. 26 Brian Fitzpatrick, 15/7/14, T:23.39-43; Brian Fitzpatrick, witness statement, 14/7/14, para 54. 27
Brian Fitzpatrick, witness statement, 14/7/14, para 55.
1254
35. Mr Alex’s mood and demeanour were markedly different from those
which Mr Fitzpatrick had experienced in their telephone conversation.
Mr Alex was conciliatory. He said that he did not want problems. He
said that he would fix matters. He said he was prepared to sit down
with the union and representatives from Cbus and ACIRT. Mr
Fitzpatrick agreed to arrange that meeting.28
36. After the meeting, Mr Fitzpatrick tried to speak with Mr Greenfield
over the telephone. He did so because Mr Greenfield was the
scaffolding organiser and Mr Fitzpatrick wanted him to get involved in
the discussions going forward so that both the labour hire and the
scaffolding issues could be sorted out. Mr Greenfield did not answer
Mr Fitzpatrick’s call.29
37. Mr Fitzpatrick thought this was unusual, and raised it with Mr Parker.
Mr Parker told him: ‘Greenfield won’t talk to you’. Mr Fitzpatrick
said he could not understand why.30
38. Mr Fitzpatrick saw it as unusual that Mr Greenfield refused to talk to
him at this point, and that Mr Parker was apparently indifferent to this
state of affairs. In Mr Fitzpatrick’s own words, ‘The union policy is if
you've got a problem with an organiser, you talk to him. Greenfield
never spoke to me. He refused to speak to me’.31
28 Brian Fitzpatrick, witness statement, 14/7/14, para 55. 29 Brian Fitzpatrick, witness statement, 14/7/14, para 56. 30
Brian Fitzpatrick, witness statement, 14/7/14, para 57. 31 Brian Fitzpatrick, 24/9/14, T:354.14-16.
1255
39. Mr Greenfield gave evidence that during this period he heard reports
that Mr Fitzpatrick had been chasing Mr Alex for arrears owed by
Active. He was told that while Mr Fitzpatrick was doing so, he would
also take up with Mr Alex the issue of Elite’s arrears.32
40. This concerned Mr Greenfield because scaffolding was his area of
responsibility, and he did not like the fact that Mr Fitzpatrick was
‘getting involved’ in that area.33
41. According to Mr Greenfield, he raised these concerns with Mr Parker
and Mr Kera, and they told him that they would deal with it and that
Mr Fitzpatrick had been instructed not to get involved in scaffolding
issues.34
42. No witness from the CFMEU has testified that either Mr Parker or Mr
Kera gave such an instruction to Mr Fitzpatrick. Further, Mr
Fitzpatrick’s evidence is, as described above, to the effect that he was
trying to ring Mr Greenfield to discuss the Elite matter, that Mr
Greenfield would not speak with him, and that Mr Parker had
confirmed that Mr Greenfield would not speak with him.
43. Further, Mr Greenfield spoke to Ms Mallia on 16 May 2013 in terms
which indicated that he was having to do a lot of work on his own, and
would have appreciated help from other organisers.35 Counsel
assisting submitted that if that was so, it is unlikely that he would have
32 Darren Greenfield, witness statement, 15/8/14, para 23. 33 Darren Greenfield, witness statement, 15/8/14, para 24. 34
Darren Greenfield, witness statement, 15/8/14, para 24. 35 Greenfield MFI-2, p 11.
1256
been complaining to Mr Parker and Mr Kera about Mr Fitzpatrick
involving himself in recovering arrears from Elite simply because the
scaffolding area was Mr Greenfield’s area not Mr Fitzpatrick’s. Mr
Greenfield’s irritation that Mr Fitzpatrick was ‘getting involved’ in
relation to the Elite matter must have been based on some other
concern, such as a concern that Mr Fitzpatrick was taking action
against Mr Alex’s interests. However, again, it is not necessary, for
present purposes, to reach any conclusion about Mr Greenfield’s
evidence in these respects, or whether the taking of action by Mr
Fitzpatrick against Mr Alex’s interests was the cause of Mr
Greenfield’s irritation.
44. The meeting with the ACIRT and Cbus representatives that Mr
Fitzpatrick had promised to organise took place, although Mr Alex did
not attend on that occasion. Mr Fitzpatrick was the only union official
who attended that meeting. Mr Greenfield did not attend.36
45. Following that meeting Mr Fitzpatrick came to an arrangement with
Mr Alex that would see workers paid their full entitlements in the short
term.
36 Brian Fitzpatrick, witness statement, 14/7/14, para 58.
1257
Mr Fitzpatrick receives a death threat
46. On 27 March 2013, at 5.07pm, Mr Fitzpatrick was sitting in his office
at Lidcombe when his mobile telephone rang.
47. Mr Fitzpatrick picked up his phone and answered it. A voice screamed
at him:37
You have gone too far this time you fucking fat cunt!! You’re dead!! I’m going to kill you!! You understand?! I don’t care how many police you’ve got with you, I’m coming over there tomorrow and I’m going to kill you!! You’re dead!!
48. The voice on the other end was ‘fever pitch, screaming … in an
absolute rage’.38 In his subsequent triple zero call, Mr Fitzpatrick
described the caller to the police as ‘absolutely screaming ballistic’ and
described the call as a ‘blitzkrieg of hate and anger’. He thought the
person on the other end of the phone sounded ‘wild and dangerous’.39
49. Mr Greenfield gave a different account of events. For reasons later
described, that account cannot be accepted.
50. The CFMEU’s contention, made clear in its cross-examination of Mr
Fitzpatrick, is that Mr Fitzpatrick ‘made up’ a story that the person that
had called him had threatened to kill him, and in doing so had ‘added’
to and ‘augmented’ what had really been said, and having done so, was
then ‘trapped’ with that ‘story’ and ‘had to go on with that’.40 This
37 Brian Fitzpatrick, witness statement, 14/7/14, para 61. 38 Brian Fitzpatrick, 15/7/14, T:25.22-23. 39
Brian Fitzpatrick, witness statement, 14/7/14, para 63. 40 Counsel for CFMEU, 24/9/14, T:351.1-352.29.
1258
untenable contention is entirely contradicted by the uncontroversial
surrounding circumstances (such as the nature of Mr Fitzpatrick’s
response to the call as observed by Ms Raju and Mr Thomas, as shortly
described). It should be rejected.
51. Mr Fitzpatrick was, in fact, very shaken by the call. To use his words,
the call had hit Mr Fitzpatrick like a shot,41 and he was ‘seriously
worried’.42
52. At the time of this call Mr Fitzpatrick had the protection of an
apprehended violence order (AVO) that had been obtained following
threats he had previously received from a CFMEU member called Ian
Fraser. Mr Fitzpatrick could not tell from the call whose voice it was,
but given his history with Ian Fraser, assumed that he must have been
the caller. Mr Fitzpatrick later recalled the voice on the phone did not
sound like Mr Fraser.43
53. When Mr Fitzpatrick had obtained the AVO, the police had told him
that if Mr Fraser ever threatened him again, he should call the police
straight away. As a result, after receiving the call Mr Fitzpatrick
immediately called Ms Radhika Raju, a solicitor employed by the
CFMEU who worked in an office upstairs from Mr Fitzpatrick. He told
her that she needed to come and see him urgently. She was about to go
home, but he said ‘it can’t wait until tomorrow.’44
41 Brian Fitzpatrick, 15/7/14, T:26.12. 42 Brian Fitzpatrick, witness statement, 14/7/14, para 63. 43
Brian Fitzpatrick, 15/7/14, T:25.35-36. 44 Raju MFI-1, p 13.
1259
54. Ms Raju then went downstairs and into Mr Fitzpatrick’s office, and
heard about what had occurred. She noticed that Mr Fitzpatrick looked
distressed and his face was red.45 He was ‘very, very upset.’46
55. After this discussion, Ms Raju went to speak to her superior in the
legal team, Ms Leah Charlson. She told her what had happened. Ms
Charlson instructed her to call the police immediately.
56. Ms Raju then returned to Mr Fitzpatrick’s office and said that she was
going to call the police. She proceeded to do so.
57. By this time Mr Fitzpatrick had asked for Mr Peter Thomas to come
into his room to examine his mobile phone. Mr Thomas worked in the
union’s technology department. He had previously been involved in
analysing calls and messages Mr Fitzpatrick had received from Mr
Fraser. He knew the numbers that Mr Fraser had been using.47
58. Mr Thomas noted that Mr Fitzpatrick was ‘very unsettled’ and
‘shaken’ and not like his normal self.48
59. Ms Raju first called Auburn police station directly and she reported the
death threat. The police told her they would send an officer but could
not provide an estimated time of arrival. Ms Raju then told Mr
Fitzpatrick that the police seemed relaxed and could not give a time of
45 Radhika Raju, 15/7/14, T:80.27-38. 46 Raju MFI-1, p 37. 47
Brian Fitzpatrick, witness statement, 14/7/14, para 68. 48 Peter Thomas, 15/7/14, T:104.44-105.35.
1260
arrival. Mr Fitzpatrick, worried about the death threat and the potential
for it to be carried out very soon, told Ms Raju to call triple zero.49
60. In view of one of the submissions advanced by the CFMEU and Mr
Greenfield, it is desirable to set out the whole of the call as
transcribed.50
OPERATOR: Please go ahead, Telstra.
TELSTRA: 269040.
OPERATOR: Thanks, Telstra. Police emergency. This is Lisa.
MS RAJU: Hi Lisa. Look, my name is Radhika Raju. I’m
calling from the construction union. I’m a lawyer here. We’ve had a matter where one of our members - his name is Ian Taylor - sorry, Ian Fraser.
OPERATOR: Ian Fraser, yep.
MS RAJU: He is a very, very - he’s got a history of crime
and violence. He’s threatened one of our officials here, Brian Fitzpatrick, a death threat - various death threats. The police have been investigating and the police today took an AVO out on Brian Fitzpatrick’s behalf, as well as charged him. Now Ian Taylor called at 5 o’clock - Ian Fraser called at 5 o’clock today and indicated that tomorrow he’ll be killing Brian Fitzpatrick.
OPERATOR: Okay. Do you have an address. Where are you calling from, sorry, Radhika?
MS RAJU: I’m calling from the CFMEU, the construction union.
OPERATOR: The CFMU.
49 Fitzpatrick MFI-1, 15/7/14, Vol. 2, Tab 11, p 34. 50 Fitzpatrick MFI-2, 15/7/14.
1261
MS RAJU: And, look, the threats were really, really bad on the phone. That’s why we’re calling you.
OPERATOR: Alright then. Now, the threat has now been made from Ian Fraser, who’s a member of yours.
MS RAJU: Yes, that’s correct.
OPERATOR: Towards Ryan Fitzpatrick.
MS RAJU: Brian, Brian, B --
OPERATOR: Oh Brian.
MS RAJU: Yes.
OPERATOR: B-R-Y- or B-R-I?
MS RAJU: B-R-I-A-N.
OPERATOR: Brian Fitzpatrick, is it?
MS RAJU: Yes, that’s correct.
OPERATOR: And who is Brian Fitzpatrick? He is -
MS RAJU: He is an officer of the union.
OPERATOR: So he is an official?
MS RAJU: Yes, yes.
OPERATOR: Alright then. Ian Fraser. Okay. And what did Ian say?
MS RAJU: I’ll actually give you to Brian Fitzpatrick to tell you the exact words.
OPERATOR: Okay.
OPERATOR: I think we need to send -
MR FITZPATRICK: Yeah, hello.
OPERATOR: Hello. Brian, is it?
1262
MR FITZPATRICK: Yeah. Look, he just rang me about 5.00, 5.05, me mobile, he’s got me mobile now. He’s been ringing the office, but he rang me mobile this afternoon - obviously he’s got it - and he just let fly, launched with a blitzkrieg of hate and anger and said, “I don’t give a fuck how many people are there, I’m going to kill you tomorrow, you’re gone, you bastard, you fat so-and-so” and he went absolutely screaming ballistic.
OPERATOR: Alright. What we need to do is organise for police to come out and see you.
61. As Ms Raju was speaking with the police on the telephone, Mr Thomas
recognised that the phone number of the death threat caller was not the
number of the phone that Mr Fraser had used previously. Mr
Fitzpatrick then looked at the union telephone list that he had on his
desk and identified the number as Mr Greenfield’s.51
62. Understandably, Mr Fitzpatrick, Ms Raju and Mr Thomas were
shocked.52
63. With the police already on their way, Ms Raju said that Mr Parker was
still in his office. Mr Fitzpatrick said ‘Can you go and get him because
he needs to get involved. This situation is crazy.’53 Ms Raju agreed.
64. Mr Parker was in a meeting at the time, and Ms Raju interrupted him
and indicated that there was a personal matter that required urgent
51 Brian Fitzpatrick, witness statement, 14/7/14, paras 69-70. 52 Raju MFI-1, p 20. 53
Brian Fitzpatrick, witness statement, 14/7/14, para 71.
1263
attention.54 Mr Parker told Ms Raju that he was in a meeting and to
come back later. When Ms Raju went back to report this to Mr
Fitzpatrick, he told her to go back and interrupt Mr Parker again
because the matter was extremely urgent.
65. Ms Raju did so, and in due course Mr Parker attended at Mr
Fitzpatrick’s office and was told what had occurred. Ms Raju noted
that Mr Parker was frustrated and upset that the police had been called.
At one stage in her evidence Ms Raju said Mr Parker had said
something to the effect that he was ‘pissed off’ that the police had been
called, although later she sought to retreat from this evidence.55 Ms
Raju repeatedly gave the impression, both during her private
examination on 30 May 2014 (the transcript of which was
subsequently tendered) and her public examination of 15 July 2014
that she was fearful of saying things which might upset her superiors
within the union and result in her losing her job.56 She gave the fate of
Brian Fitzpatrick as an example.
66. Ms Raju claimed that this and the many other changes she made to her
evidence during her public hearing were justified on the ground that
she had not slept for three days before the private hearing. Senior
counsel for Ms Raju, in attacking the submission of counsel assisting
just summarised, relied on the three days without sleep to explain the
changes in her evidence. He also submitted that her evidence about
fear for her job related to her failure to challenge a public statement by
the union executive, which she had no duty to do, and that that was in a
54 Brian Parker, 3/10/14, T:606.15-17. 55 Raju MFI-1, p 20; Radhika Raju, 15/7/14, T:82.6-37, 89.2-19, 92.4-6. 56
Raju MFI-1, p 37; Radhika Raju, 15/7/14, T:93.11-94.13.
1264
different category from her duty to give true evidence, and to correct
earlier evidence if necessary. He further made the point that she had
been called to give her evidence at the private hearing viva voce,
without any statement being prepared.57 The reference to not sleeping
for three days is an obvious exaggeration. While the distinction which
senior counsel for Ms Raju drew is sound in theory, the fact is that Ms
Raju made a larger number of corrections which cannot readily be
explained either by fatigue or the fact that she gave her evidence viva
voce. She did have a statement, prepared within three weeks of 27
March 2013, on 17 April 2013, and so far as she was asked about
fresh matters, the forensic experience of the years suggest that answers
to unforeseen questions are more likely to be truthful than the answers
of witnesses who have been taken through multiple drafts of a
statement. The submission of counsel assisting that what she said in
the private hearing was her honest and accurate recollection of events
is correct.
67. Mr Parker denied being irritated that the police had been called, and
said his real concern ‘would have been’ that nobody had told him that
the police had been called.58 This makes no sense. Ms Raju did tell
Mr Parker that the police had been called. If what Mr Parker meant to
say was that nobody told him that the police were going to be called, it
was hardly necessary for anyone to get Mr Parker’s approval before
calling the police to respond to a death threat. The fact that Ms
Charlson, Ms Raju and Mr Fitzpatrick did not hesitate to call the police
57 Submissions on behalf of Radhika Raju, 13/11/14, paras 1-6. 58 Brian Parker, 3/10/14, T:606.36-38.
1265
demonstrates this to be so. Mr Parker was irritated the police had been
called.
68. Mr Fitzpatrick said to Mr Parker:59
Listen mate, you better go and talk to him and tell him to back off because this ain’t going away. You need to get a meeting between us so we can sort out what’s behind it all.
69. The meeting that Mr Fitzpatrick suggested was the sort of meeting that
was typically held between executives and employees when there is a
significant disagreement, and provides an opportunity for the parties
concerned to ‘clear the air’ and settle their differences.
70. Mr Fitzpatrick also said to Mr Parker ‘I'm going to have to follow it up
because I can't leave this go because we're talking about a person who
is dealing with George Alex’.60 Mr Fitzpatrick was worried about the
fact Mr Greenfield appeared to have an association with Mr Alex and
that Mr Alex was someone with a ‘colourful’ history.61
71. Mr Parker then left the room, and Mr Fitzpatrick understood he was
going back to his office to ring Mr Greenfield. About 10 minutes later
Mr Parker returned to Mr Fitzpatrick’s office. At this point Mr
Thomas left the room.
72. Ms Raju gave evidence that after Mr Parker had returned to Mr
Fitzpatrick’s office, he reported on what Mr Greenfield had said to
59 Brian Fitzpatrick, witness statement, 14/7/14, para 72. 60 Brian Fitzpatrick, 15/7/14, T:29.32-34. 61
Brian Fitzpatrick, 15/7/14, T:29.34-36; Brian Fitzpatrick, 24/9/2014, T:355.36-38, T:357.7-10.
1266
him. Mr Parker did not give any indication at this point that Mr
Greenfield had denied making the death threat.62 Mr Parker then asked
Ms Raju to leave, and she did so.
73. Mr Parker closed the door and they had the following conversation:63
Parker: No good mate, he’s not going to back off and he said he’s going to destroy you.
Fitzpatrick: What does that mean? Physically?
Parker: No. He said he’s going to destroy you on the building sites.
Fitzpatrick: Well, hang on mate. You’re the secretary of this union. What are you going to do about it? Are you going to accept that?
Parker: Well, what can I do if two people don’t like each other?
Fitzpatrick: Well, you can stand him down for a start to get to the bottom of this and you can’t accept it. You’re the secretary of the union.
Parker: I’m not going to do that.
74. Mr Parker also told Mr Fitzpatrick that Mr Greenfield had denied
making a death threat.64
75. Mr Fitzpatrick was shocked by Mr Parker’s indifference to what had
occurred and his reluctance to discipline Mr Greenfield.
76. Mr Fitzpatrick asked Mr Parker ‘Are you prepared to get a meeting
tomorrow set with yourself, myself, and Rita Mallia, the president,
62 Radhika Raju, 15/7/14, T:96.10-12. 63 Brian Fitzpatrick, witness statement, 14/7/14, para 75. 64
Brian Fitzpatrick, 15/7/14, T:29.45-46.
1267
with our solicitors, Taylor and Scott, to go through this?’.65 This was
the general union practice for resolving differences between two
officials. Mr Parker refused to set up a meeting.66
77. Mr Fitzpatrick then told Mr Parker to either bring a lie detector in to
see whether he or Mr Greenfield was telling the truth about the death
threat or to talk to the solicitors to investigate the matter further
because he was not prepared to leave it.67
78. At some stage two police officers arrived. Ms Raju let them in and
took them to see Mr Fitzpatrick and Mr Parker.
79. Mr Fitzpatrick said to the police that he was sorry and that it had been
a false alarm. When they asked him what he meant by that, Mr
Fitzpatrick said that he had received a death threat, but it had come
from a fellow official, not Mr Fraser.
80. Mr Fitzpatrick then recounted what had occurred and the police
indicated that they could take a report of the incident. After hearing the
facts, the police said ‘Well, look, we can prove the call took place but
we can’t prove who said what. It’s you versus them. We can’t make an
arrest, simple as that’.68
81. Mr Fitzpatrick was aware that if he asked the police to follow up on Mr
Greenfield’s death threat, the union would punish him for calling the
65 Brian Fitzpatrick, 15/7/14, T:30.7-10. 66 Brian Fitzpatrick, 15/7/14, T:30.32-33. 67
Brian Fitzpatrick, 15/7/14, T:30.35-42. 68 Brian Fitzpatrick, 15/7/14, T:31.15-20.
1268
police on a ‘mate’.69 However, Mr Fitzpatrick felt that he wanted a
report to be made so it would be on the record in case something
happened in the future.70
82. Mr Fitzpatrick was clearly still fearful of the death threat and felt he
needed to make a police report even though he knew there would be
repercussions from the union.
83. There can be no question that Mr Fitzpatrick was very shaken by the
fear engendered in his mind by the call, and by the perplexing
indifference exhibited by Mr Parker.
84. Indeed Ms Raju was so concerned about Mr Fitzpatrick’s wellbeing
given his reaction to these events that she rang and spoke to a former
union official, Mr Peter McClelland, who ran an enterprise called
Mates in Construction that assists workers experiencing difficulty.71
Mr Greenfield’s version of the call
85. Mr Greenfield has admitted making an abusive call to Mr Fitzpatrick
but denies making a death threat. The version of the telephone call
given by Mr Greenfield to the Commission was as follows:72
It’s Greenfield here. You fucking fat cunt. You’re a slimy piece of shit. You’re a racist and a bully. Don’t undermine me. I’ve sat back and watched you tread on everyone else’s toes in this organisation and if
69 Brian Fitzpatrick, 15/7/14, T:31.24-26. 70 Brian Fitzpatrick, witness statement, 14/7/14, para 76; Brian Fitzpatrick, 15/7/14, T:31.27-31. 71
Raju MFI-1, pp 36-37. 72 Darren Greenfield, witness statement, 15/8/14, para 27.
1269
you’re now coming after me I’ll fucking tread on your toes starting tomorrow.
86. Counsel assisting submitted in chief that for a number of reasons this
evidence cannot be accepted.
87. First, there are marked differences between Mr Greenfield’s version of
this call and that of Mr Fitzpatrick. It is highly unlikely that Mr
Fitzpatrick, a seasoned and hard-nosed union official, would have
responded to the call in the way he did had the call been as Mr
Greenfield described. According to Mr Greenfield he identified
himself and did not make any death threat. Yet Mr Fitzpatrick was
visibly shaken and upset. He told people straight away that he had
received a death threat. The police were called.
88. All of this behaviour is consistent with Mr Fitzpatrick having received
the call he describes. None of it is consistent with him having received
a call of the kind Mr Greenfield describes, in which Mr Greenfield
introduces himself and speaks of ‘treading on toes’.
89. Secondly, the version of the phone call given by Mr Greenfield in
evidence is different in a number of material respects from the version
he described to Ms Mallia in May 2013. In Ms Mallia’s note, she set
out in quotes what she was told by Mr Greenfield about this call. In
that version, Mr Greenfield is quoted as saying ‘Its Greenfield here you
fat piece of shit, sat back and watch you tread on everyone else’s toes
in this organisation, you are now coming after me, I’ll tread on yours
starting tomorrow’.73
73 Greenfield MFI-2, p 2.
1270
90. In this version Mr Greenfield does not call Mr Fitzpatrick a ‘fucking
fat cunt’. He does not call him a ‘slimy shit’. He does not call him a
‘racist and a bully’. He does not say ‘Don’t undermine me’. In other
words in this (earlier) version of the call Mr Greenfield does not
include four of the first five sentences appearing in the version
advanced in his evidence to the Commission. The fact Mr Greenfield
has given quite inconsistent accounts of the conversation at different
times counts against the credibility of his evidence.
91. Thirdly, Mr Fitzpatrick’s evidence has generally been shown to be
credible, and the version of events he has given has, in due course,
been corroborated. His evidence in relation to the Cbus leak is a good
example of this (as to which see Chapter 8.3).
92. Fourthly, Ms Raju gave evidence that in a discussion she had with Mr
Greenfield she spoke to him about whether he had identified himself to
Mr Fitzpatrick, and Mr Greenfield said ‘I didn’t need to. He knew who
it was’.74 This contradicts Mr Greenfield’s evidence about how the
call began. There is no reason why Ms Raju would make something
like that up, and it is difficult to see how she could have been in any
way confused about what was said to her. Mr Greenfield denied this
conversation,75 but Ms Raju’s evidence on the subject should be
preferred. Mr Greenfield’s evidence was motivated by self-interest;
Ms Raju’s was not.
93. Fifthly, Mr Greenfield’s version of events rests on the premise that he
was angered by the fact that Mr Fitzpatrick was continuing to involve
74 Radhika Raju, 15/7/14, T:96.47-97.25. 75 Darren Greenfield, 3/10/14, T:693.18.
1271
himself in the scaffolding sector when that was Mr Greenfield’s area of
responsibility, and it was upon hearing about this again from Mr
Westerway that he became angry and rang Mr Fitzpatrick. When
describing the fact he was very angry in his evidence, he said ‘Mr
Fitzpatrick had not called me to discuss Elite or warn me about
meeting with Elite’.76
94. However the proposition that Mr Greenfield was angry about Mr
Fitzpatrick involving himself in a scaffolding sector matter (of itself) is
difficult to accept for the reasons earlier set out. Mr Greenfield’s
complaint to Ms Mallia was that he did not have enough help.
95. Further, even if the fact that Mr Fitzpatrick was doing some work in
the scaffolding sector did irritate Mr Greenfield as he alleges, it was a
fact known to Mr Greenfield well prior to 5.07pm on 27 March 2013.
That fact had not led him to any abusive telephone calls to Mr
Fitzpatrick before that time.
96. Sixthly, Mr Greenfield’s evidence rests on the premise that he received
a call from Mr Westerway shortly before making his abusive call to Mr
Fitzpatrick, during which Mr Westerway told him that Mr Fitzpatrick
had criticised Mr Greenfield for not doing his job and had caused
confusion as to who Elite Holdings had to deal with from the CFMEU.
Mr Greenfield said this made him ‘very angry’, and led to him ringing
Mr Fitzpatrick and abusing him.77
76 Darren Greenfield, witness statement, 15/8/14, para 26. 77 Darren Greenfield, witness statement, 15/8/14, para 25-26.
1272
97. However that sequence of events is not correct. Further, his evidence
as to what Mr Westerway told him on that call conflicts with a prior
statement made by him about that matter. In this regard:
(a) the notion that Mr Greenfield was enraged by the call from
Mr Westerway and reacted by ringing Mr Fitzpatrick is not
correct. Phone records demonstrate that Mr Greenfield rang
Mr Parker’s phone immediately prior to calling Mr
Fitzpatrick, and had a two minute phone call.78 Mr
Greenfield rang Mr Fitzpatrick within a matter of seconds
after this call to Mr Parker’s phone;
(b) neither Mr Parker nor Mr Greenfield was prepared to admit
participating in this two minute call. A vague suggestion was
made by Mr Parker that Ms Wray might have been in
possession of and answered Mr Parker’s phone,79 although
Mr Parker said elsewhere that it was ‘possible’ that he had
spoken with Mr Greenfield immediately before Mr Greenfield
rang Mr Fitzpatrick.80 Mr Greenfield said he ‘didn’t recall’
ringing Mr Parker81 - this from a witness who said he had a
‘very good recollection’ of what happened that day,82 who
had plainly been alerted to the issue by his lawyers in advance
of giving evidence83 but who had avoided it in the statement
78 Parker MFI-7, 3/10/14, p 1. 79 Brian Parker, 3/10/14, T:609.27-34. 80
Brian Parker, 3/10/14, T:606.42. 81 Darren Greenfield, 3/10/14, T:695.47-696.1. 82
Darren Greenfield, 3/10/14, T:697.4-10. 83 Darren Greenfield, 3/10/14, T:699.5-8.
1273
he provided to the Commission. Mr Greenfield and Mr
Parker feigned ignorance in relation to this critical call which
immediately preceded the call from Mr Greenfield to Mr
Fitzpatrick;
(c) in any event, whether Mr Greenfield spoke to Mr Parker or
Ms Wray, this intervening two minute discussion puts an
altogether different complexion on the sequence of events.
Mr Greenfield had engaged with someone else - either Mr
Parker or Ms Wray - between speaking with Mr Westerway
and Mr Fitzpatrick. This unexplained intervening substantive
communication makes it much more difficult to accept that
Mr Greenfield simply flew off the handle at Mr Fitzpatrick
after having spoken with Mr Westerway. There was more to
the sequence of events, and whatever else occurred between
the Westerway and Fitzpatrick calls has not been revealed by
Mr Greenfield or anyone else;
(d) Mr Greenfield gave a different description of the call from Mr
Westerway when he spoke with Ms Mallia in May 2013.84
On that occasion he said that Mr Westerway had said that Mr
Fitzpatrick had claimed credit for a recent payment that he,
not Mr Greenfield, had chased up.
98. Seventhly, Mr Greenfield’s recollection of the sequence of events has
been found wanting in other respects. He has consistently said since
May 2013 that immediately after he called Mr Fitzpatrick he
84 Greenfield MFI-2, p 2.
1274
telephoned Mr Parker and reported what he had done. He repeated this
in testimony to the Commission. However this is not supported by the
phone records. The call to Mr Fitzpatrick was at 5.07pm. In the
following half hour Mr Greenfield spoke with Mr Kera on a number of
occasions.85 Mr Greenfield did not take or receive a call from Mr
Parker until 5.44pm, when Mr Parker rang him and they spoke for a
couple of minutes. Mr Greenfield’s memory is not a reliable source of
information.
99. What submissions did the CFMEU and Mr Greenfield advance against
these submissions?
100. They quite properly submitted that to find in favour of Mr Fitzpatrick’s
version and against Mr Greenfield’s version involved making a serious
finding against Mr Greenfield. So serious a finding should only be
made with caution.86
101. The submissions of the CFMEU and Mr Greenfield drew attention to
the differences between Mr Fitzpatrick’s evidence of what Mr
Greenfield said in the 5.07pm call, and what Mr Fitzpatrick is recorded
as having said to Lisa of Police Emergency, taking the call from Ms
Raju and Mr Fitzpatrick a little later. So far as there are similarities, of
course, they support Mr Fitzpatrick. But the CFMEU/Greenfield
submissions concentrated on the differences. It is these differences
that underlie the repeated references in those submissions to Mr
Fitzpatrick’s ‘latest account’.87 The submissions contrast this with Mr
85 Parker MFI-7, 3/10/14, p 1. 86 Briginshaw v Briginshaw (1938) 60 CLR 336. 87
Submissions on behalf of CFMEU, Pt 8.4, paras 17, 23.
1275
Greenfield’s denials of any death threat on various occasions up to and
including his testimony.88 The CFMEU/Greenfield submissions
contend that the differences have not been explained. They contend:
‘It is open to conclude that Mr Fitzpatrick has embellished his account
for the purpose of giving testimony to the Royal Commission.’89
102. Prima facie this is a reasonable submission. But it overlooks several
points. First, what Mr Fitzpatrick said to Lisa did not purport to be a
verbatim account. That follows from the metaphors and words of
summary Mr Fitzpatrick employed - ‘he just let fly’, ‘launched with a
blitzkrieg of hate and rage’, ‘went absolutely screaming ballistic’.
Secondly, Mr Fitzpatrick resorted to euphemism - ‘so and so’.
Speaking to Lisa in the presence of Ms Raju, it is not surprising that a
man of Mr Fitzpatrick’s generation omitted the two obscenities he
testified to - one even now regarded as serious, one he may have
regarded as a very shocking word to use in the presence of women.
Thirdly, the CFMEU/Greenfield submission is that Mr Fitzpatrick has
engaged in a deliberate falsification of what happened. Even in places
strictly bound by the rules of evidence, which the Commission is not, it
is permissible to rebut allegations of afterthought by pointing to prior
consistent statements. One recollection of what Mr Fitzpatrick’s
earlier accounts of the incident were was that of Ms Raju. In the
statement, made only three weeks after the 27 March 2013 phone call,
88 Submissions on behalf of CFMEU, Pt 8.4, para 29. 89 Submissions on behalf of CFMEU, Pt 8.4, para 24.
1276
which was received at her private hearing, she recalled Mr Fitzpatrick
saying to Lisa:90
he said to me “You fat f*cking c*nt. I’m going to kill you, I’m going to come after you. I’m going to get you tomorrow regardless of the police being there just call him and sort it out with him. I’ve written his number down. Here it is.
103. Now that is not what Mr Fitzpatrick is recorded as having said to Lisa.
But it is a reasonable inference that Ms Raju heard Mr Fitzpatrick give
that account to her and has mistakenly attributed it to the call to Lisa.
Another recollection which Ms Raju recorded in her near
contemporary statement is that the first thing Mr Fitzpatrick said to her
when she came to his room straight after the call from Mr Greenfield
was: ‘I’ve been threatened again by Ian Fraser and he was serious this
time. He’s coming to kill me tomorrow. He said he doesn’t care about
the police.’ That certainly establishes consistency in its reference to a
death threat. And it is consistent both with the call to Lisa and with Mr
Fitzpatrick’s testimony in speaking of a threat to kill Mr Fitzpatrick
which would be carried out no matter how much protection - whether
‘police’ or ‘people’ - Mr Fitzpatrick had.
104. Fourthly, a claim to absolute precision in recollecting a conversation,
and mechanically flawless consistency in narrating it, are more
commonly badges of invention than of truth.
105. Fifthly, it is clear that Ms Raju believed, based on Mr Fitzpatrick’s
appearance, conduct and statements, that Mr Fitzpatrick had received a
death threat, whatever words it was couched in.
90 Radhika Raju, witness statement, 17/4/13, para 7, tendered as Fitzpatrick MFI-1, 15/7/14, pp 33-36.
1277
106. Another argument advanced in the CFMEU/Greenfield submissions
can conveniently be dealt with at this point. The argument is that
neither Mr Fitzpatrick nor counsel assisting offer any explanation of
why the caller eventually identified as Mr Greenfield would refer to
police in the call.91 One answer is that those threatened with death
often ask for and sometimes get a measure of police protection.
Another is that a reference to police is a colourful method of stressing
how determined the person using the threat is to carry it out.
107. The next CFMEU/Greenfield submission was that while Mr Fitzpatrick
was frightened by the call for so long as he believed the caller to have
been Mr Ian Fraser, he:
changed his mood and demeanour after learning that it was Mr Greenfield who made the call. He stated to Mr Parker that he was willing to accept an apology from Mr Greenfield for the phone call and was willing to meet with Mr Greenfield to sort out what was behind it. Clearly once he knew that the call was made by Mr Greenfield he did not regard the conversation in the call as a threat to his life.92
108. That submission is not supported by the evidence with precision. Mr
Fitzpatrick seemed to have remained in a state of distress for some
time, even after his suggestion of a meeting with Mr Greenfield.
109. The CFMEU/Greenfield submission then submitted:93
[Mr Fitzpatrick’s] evidence is that he told the police what happened and that he wanted to report it. If such a report exists the Royal Commission has not provided it. It is however telling that once Mr Fitzpatrick discovered that the call came from Mr Greenfield he regarded it as a false alarm.
91 Submissions on behalf of CFMEU, Pt 8.4, para 23. 92 Submissions on behalf of CFMEU, Pt 8.4, para 26. 93
Submissions on behalf of CFMEU, Pt 8.4, para 27.
1278
110. This misrepresents Mr Fitzpatrick’s evidence. When the police came,
Mr Fitzpatrick’s evidence as to what happened was as follows:94
I said to the police that I was sorry and it had been a false alarm. They asked me what I meant. I said that I had got a death threat, but not from the person who had been threatening me previously. They then asked who it was and I told them that it was somebody I worked with, a fellow official. They asked me what happened and I told them. They said they could take a report of it. I said that I wanted them to do that so there would be something on the record in case anything else happened.
111. That is, Mr Fitzpatrick was not saying to the police: I want to make a
report to you at some future stage.’ He was saying: ‘I want you to
“take a report of it” now.’ He wanted to ensure that something was
placed on the record as a result of what he actually said to the police
there and then.
112. Then the CFMEU/Greenfield submissions asserted that counsel
assisting did not refer to evidence from Mr Greenfield and Mr
Westerway that the latter had told the former that Mr Fitzpatrick had
said disparaging things about him.95 That is not correct. Counsel
assisting did deal with the preceding call from Mr Westerway to Mr
Greenfield.96 Those submissions pointed out at some length that there
was an intervening call, seemingly between Mr Greenfield and Mr
Parker, which has not been explained or clarified. The failure of the
CFMEU/Greenfield submissions to notice and deal with the
submissions relating to Mr Westerway does not engender confidence in
the balance of them. Other problems in Mr Greenfield’s account raised
by counsel assisting have likewise not been dealt with.
94 Brian Fitzpatrick, witness statement, 14/7/14, para 76. 95 Submissions on behalf of CFMEU, Pt 8.4, para 30. 96
Submissions of counsel assisting, 31/10/14, paras 97-98.
1279
113. Finally, the CFMEU/Greenfield submissions contrasted Mr
Fitzpatrick’s evidence that he had tried to call Mr Greenfield a number
of times to talk about the Elite Scaffolding arrears with phone records
showing that there was only one call, on 15 March, lasting 38 seconds.
Does the existence of only one call contradict evidence that Mr
Fitzpatrick ‘tried’ a number of times? It depends what is meant by
‘tried’. If there is a contradiction, how does it advance Mr
Greenfield’s side of the controversy about what was said on 27 March
2013? It could only do so if it went to credit in a damaging way.
114. It is convenient to turn to considerations of credit at this point.
115. Counsel assisting did not attack Mr Greenfield’s general credibility
save by reference to particular problems in his testimony. Nor is there
any reason to doubt Mr Greenfield’s general credibility. But
submissions were made attacking Mr Fitzpatrick’s credibility,
particularly but not only by Mr Parker.
116. First, it was said that Mr Fitzpatrick should not be believed about the
27 March 2013 incident because of his role in using the personal
contact details in the Zanatta spreadsheets to contact Cbus members in
order to make them disgruntled with Lis-Con.97 It is true that his
conduct was unsatisfactory, but his revelation of it against his own
interests enhanced his credibility. And it does not lie well in the mouth
of Mr Parker, the most powerful person in the branch, or in the mouth
of the union itself, to rely on Mr Fitzpatrick’s conduct when Mr Parker
97 Submissions on behalf of Brian Parker, 19/11/14, paras 20-32; Submissions on behalf of CFMEU, 14/11/14, Pt 8.4, para 53(b).
1280
was not only at least a party to it, but was a person without whose
consent it could not have taken place.
117. Secondly, it was said that Mr Fitzpatrick should not be believed about
the 27 March 2013 incident because he was embittered and had fallen
out with the union leadership.98 That must be weighed with the fact
that it was the failure of the union leadership to respond properly to the
27 March 2013 incident that had made him embittered.
118. The CFMEU also criticised Mr Fitzpatrick for a number of minor
errors in his evidence, and for disclosing to Mr Fodor that he had given
evidence in private.99 Mr Fitzpatrick apologised for the latter lapse
voluntarily and on his own initiative. And the minor errors do not
defeat Mr Fitzpatrick’s reliability on the central aspects of his
testimony.
119. The fact is that Mr Fitzpatrick’s credibility was in fact good overall.
His demeanour was very good. His credibility in relation to the 27
March 2013 phone call issue was significantly strengthened by his
vindication on the key points in relation to the Cbus scandal. Initially
his version was denied by the CFMEU and Cbus, but it has been
completely confirmed by subsequent events. Aspects, large and small,
of his good credibility were discussed in that connection.100
98 Submissions on behalf of CFMEU, 14/11/14, Pt 8.4, para 45. 99 Submissions on behalf of CFMEU, 14/11/14, Pt 8.4, para 53. 100
See Chapter 8.3.
1281
120. Counsel for Mr Fitzpatrick argued that the position of the CFMEU and
Mr Parker was as follows:101
Brian Fitzpatrick did not receive a death threat, according to both the CFMEU and Parker. Fitzpatrick was doing Darren Greenfield’s work without permission. This caused Greenfield to get upset and abuse him and no more. Fitzpatrick knew that Greenfield was the person who had simply abused him. He then feigned real fear to his colleagues and had the Police called. He plotted to tell Police the caller was Fraser and pretended he had received a death threat from him. Fitzpatrick then feigned shock when it was discovered that the caller was Greenfield. He then continued the plot, informing Parker that Greenfield had threatened to kill him, when the truth was that he had only been abused. When the police arrived Fitzpatrick told them it was a false alarm because it was Greenfield not Fraser who had made the call.
121. Counsel for Mr Fitzpatrick then posed a series of questions:102
What possible reason would Fitzpatrick have for calling the police unless he had received the death threat and believed it was authentic? If he knew the call was from Greenfield what possible reason did he have for saying he believed it came from Fraser? What motivation did he have to harm Greenfield? If he had motivation to harm Greenfield why did he name Fraser? If he wanted to harm Greenfield why did he then tell the police it was a false alarm?
122. The answer to the second last question is that it is impossible to say.
The answer to the other questions must be in the negative. Counsel for
Mr Fitzpatrick then argued:103
Fitzpatrick was aware of the union policy of keeping disputes in-house, which was precisely why he asked for Parker the moment he discovered the caller was Greenfield. He wanted Parker to intervene and find out why Greenfield had threatened to kill him. Fitzpatrick did not tell the police it was a false alarm because a death threat had not been made. It was
101 Submissions on behalf of Brian Fitzpatrick in reply to those made on behalf of CFMEU and Brian Parker, 21/11/14, para 7. 102
Submissions on behalf of Brian Fitzpatrick in reply to those made on behalf of CFMEU and Brian Parker, 21/11/14, para 9. 103 Submissions on behalf of Brian Fitzpatrick in reply to those made on behalf of CFMEU and Brian Parker, 21/11/14, para 10.
1282
because he had discovered the caller was Greenfield, not Fraser, and because he wanted to observe union policy to deal with the matter in-house.
123. The reasons advanced by the CFMEU and Mr Greenfield for preferring
Mr Greenfield’s version are not convincing. The reasons advanced by
counsel assisting and counsel for Mr Fitzpatrick are. The finding must
be that in substance Mr Fitzpatrick’s version is correct.
Initial failure to investigate
124. As has already been described, Mr Parker’s initial response to the
incident was as follows. He spoke to each of Mr Fitzpatrick and Mr
Greenfield quickly. He concluded that it was a case of one person’s
word against another. He took no further action. Counsel for Mr
Parker defended this response, on the ground that the police said they
could not make an arrest because it was word against word.104 But
even if the police response was satisfactory, the CFMEU had the
ability to probe more deeply. Mr Greenfield could have refused to
answer police questions. In a practical sense it would be much harder
to refuse to answer Mr Parker’s questions.
125. Counsel for Mr Parker submitted that whatever the need for an urgent
response to a threatening act thought to be from Mr Ian Fraser, there
was ‘less objective cause for concern’ when it became apparent that the
caller was Mr Greenfield.105 It is not clear why. This suggests that a
threat from one official to another can be ignored, even when the
104 Submissions on behalf of Brian Parker, 21/11/14, paras 10, 16. 105 Submissions on behalf of Brian Parker, 21/11/14, para 14.
1283
victim repeatedly but unsuccessfully seeks the intervention of senior
union officials.
126. That was a grossly deficient response from the Secretary of the NSW
Divisional Branch of the CFMEU. Mr Quirk later complained about
this in writing to Mr O’Connor, the National Secretary of the
CFMEU.106
127. Neither Ms Mallia nor Mr Parker, the two most senior figures in the
NSW Divisional Branch, took any further step to investigate the matter
until complaints were made by individuals within the union as to the
lack of investigation that had been undertaken.
128. It is remarkable that neither Mr Parker nor Ms Mallia sought to create,
in the immediate aftermath of the incident, a written report
incorporating a record of Mr Greenfield’s and Mr Fitzpatrick’s version
of events. In order to find the first written record of Mr Greenfield’s
account of what occurred, one has to travel forward almost two
months, to Ms Mallia’s note of 16 May 2013. Counsel for Mr Parker
called this ‘minor’.107 That is not so. A record of what had been said
very soon after it had been said would have been much more accurate
than records created months later.
129. The lack of investigation, analysis and recording on the day of the
incident and in the days which followed indicates that neither Mr
Parker nor Mr Mallia regarded it as particularly worrying that one
official had allegedly threatened to kill another. This is remarkable.
106 Fitzpatrick MFI-1, 15/7/14, p 247. 107 Submissions on behalf of Brian Parker, 21/11/14, para 18.
1284
Initial attack on Mr Fitzpatrick
130. Having received the death threat Mr Fitzpatrick then found himself
under attack within the CFMEU. Mr Fitzpatrick noted that ‘it was right
on from there’ and that ‘there was a full frontal attack to get me out’.108
131. On 12 April 2013, a Committee of Management meeting was held that
included an agenda item raised by Mr McNamara regarding union
officials ringing police on another official. The Committee of
Management did not discuss the death threat itself. They only
discussed the fact that a union official had rung the police about
another official. This was not on the agenda, but is recorded in the
minutes.109
132. Mr Fitzpatrick had been invited to attend the meeting as a visitor but
was told to leave the room during discussions on the relevant agenda
item.110
The McDonald Report
133. Faced with some criticism about the lack of response to Mr
Fitzpatrick’s complaints, Ms Mallia agreed to appoint Mr Donald
McDonald AM, a respected and retired former leader of the Branch, to
look into the matter.
108 Brian Fitzpatrick, 15/7/14, T:31.30-35. 109 Fitzpatrick MFI-1, 15/7/14, Vol. 1, p 27 (‘Officials ringing police’). 110
Brian Fitzpatrick, 15/7/14, T:33.4-8.
1285
134. Mr McDonald was not engaged by Mr Parker or Ms Mallia to conduct
a thorough investigation into whether Mr Greenfield had behaved as
Mr Fitzpatrick had alleged. He was engaged to conduct a type of
investigation, but not a thorough one. That can be inferred from the
McDonald Report itself.111 The vast majority of the McDonald report
does not concern the death threat incident at all. It concerns, instead,
the existence of a series of ‘powerful forces’ operating against the
union and contains a large number of statements with respect to the
way in which officials of the union should behave in meeting a series
of broad challenges facing the union. Indeed the report is entitled ‘The
Challenge Ahead’.
135. It emerged from Mr McDonald’s examination that his investigation
into the death threat incident took place in meetings held over the
course of part of a day.112 In his report, Mr McDonald indicated that
the discussions with witnesses were of ‘an informal nature’, and that
the matters raised in those discussions ‘were not able to be tested or
fully substantiated’.113 The report does not contain any detailed
statement as to what each interviewee had said to him during the
informal discussions. Mr McDonald said in his evidence that, while he
took some notes during those discussions, he destroyed them
afterwards.114
111 Rita Mallia, witness statement, 15/8/14, annexure RGM 15. 112 Donald McDonald, 24/9/14, T:391.41-393.45. 113
Rita Mallia, witness statement, 15/8/14, annexure RGM 15, p 362. 114 Donald McDonald, 24/9/14, T:393.7-32.
1286
136. Mr McDonald made it clear in his report that it was ‘not intended to be
judgmental’.115 In keeping with that approach, Mr McDonald did not
express any view in his report as to what had occurred as between Mr
Fitzpatrick and Mr Greenfield. Instead, he suggested that ‘like golf’,
‘the advice is that you should never think of your last shot, just
concentrate on your next shot’.116 Plainly, Mr McDonald’s approach
was to encourage those involved to look ahead.
137. No criticism is made of Mr McDonald for failing to undertake a
penetrating investigation. As he indicated in his evidence, he was not
asked to undertake such an investigation.117
138. It must have been immediately obvious to Ms Mallia and Mr Parker,
and any reader of the McDonald report, that he had not been asked to
undertake, and had not undertaken, any real investigation into the
events to determine what had happened.
139. However on receipt of that report, neither Ms Mallia nor Mr Parker
made any complaint. They did not send Mr McDonald back to
investigate further. They did not ask him to do anything else.118 By
this time Ms Mallia’s report had been commissioned.
140. At a high level, some of the statements in the McDonald report must
have only encouraged inaction. Mr McDonald referred to the fact that
the leadership was operating in difficult times and this required ‘ALL
115 Rita Mallia, witness statement, 15/8/14, annexure RGM 15, p 362. 116 Rita Mallia, witness statement, 15/8/14, annexure RGM 15, p 367. 117
Donald McDonald, 24/9/14, T:394.45-395.1. 118 Donald McDonald, 24/9/14, T:395.15-27.
1287
OFFICIALS AND STAFF TO CLOSE RANKS’, stated that it was
‘NECESSARY FOR EVERYONE WHO REPRESENTS THE
UNION TO BE LOYAL, COOPERATIVE AND ACCEPT AND
IMPLEMENT THE DECISIONS OF THE LEADERSHIP’.119
141. The McDonald report reflects a deeply engrained attitude within the
CFMEU that the union is to be protected at any cost, and that officials
should not speak out against the leadership.
142. Such sentiments, while no doubt strongly held and well meant by Mr
McDonald and others, do not provide a healthy environment within
which officials and employees can feel free to voice their concerns
about potential misconduct by the leadership and officials who are
closely aligned with the leadership. They have the opposite effect.
They assume that the leadership and other high ranking officials will
not engage in misconduct.120
143. The McDonald report was tabled at a 7 May 2013 extraordinary
meeting of the Committee of Management. The members of that
management committee do not appear to have taken it upon themselves
to complain that there had been no real investigation into the death
threat incident. It may have been that they were heeding Mr
McDonald’s advice to close ranks. Or they may have been waiting for
Ms Mallia’s report.
119 Rita Mallia, witness statement, 15/8/14, annexure RGM 15, p 369. 120 Donald McDonald, 24/9/14, T:399.26-30.
1288
Ms Mallia’s report
144. Ms Mallia ultimately undertook a separate inquiry into the death threat
incident. She has never explained why it took her so long to do so.
145. Ms Mallia is a trained lawyer.121 She appreciated that it was important,
for there to be a proper investigation into the matter, for account to be
taken of the objective circumstances.122 Yet she did not do this when
dealing with Mr Fitzpatrick’s complaint against Mr Greenfield.
146. As part of the investigative process Ms Mallia obtained statements
from Mr Thomas on 16 April 2013 and Ms Raju the next day. Ms
Mallia then interviewed Mr Greenfield on 16 May 2013.123
147. A few days prior to interviewing Mr Greenfield, Ms Hamson (Branch
Finance Officer) sent an email to Steve Kamper in relation to Mr
Fitzpatrick. The email attached Ms Hamson’s calculations of what the
union would have to pay in the event Mr Fitzpatrick was terminated on
31 May 2013.124 Ms Hamson indicated she understood that Mr Parker
and Ms Wray had been speaking to Mr Kamper about it, and added
that Ms Mallia had asked that Mr Kamper have a look at the
calculations and advise on options.
148. The fact is that Ms Mallia, Mr Parker and others were, on the one hand,
working out what it would cost to terminate Mr Fitzpatrick’s
121 Rita Mallia, 25/9/14, T:436.27-29. 122 Rita Mallia, 25/9/14, T:436.31-34. 123
Rita Mallia, witness statement, 15/8/14, para 49. 124 Mallia MFI-1, 25/9/14, p 1-1.
1289
employment, and, on the other hand, conducting a somewhat limited
investigation into Mr Fitzpatrick’s complaint. It is difficult to see how
an investigation could be carried out in good faith in such
circumstances. It was all about appearance, not substance. The
CFMEU submitted that this was only a coincidence, and that Mr
Fitzpatrick was having discussions with various officials and former
officials about leaving the union.125 When the events of 2013 are
viewed as a whole, the contemporaneity of Mr Fitzpatrick’s slide out
of the union, the ineffectual reports into the 27 March 2013 incident,
and Mr Fitzpatrick’s growing persecution is not just a coincidence.
149. Ms Mallia’s report was tabled at a Committee of Management meeting
on 31 May 2013.126
150. In her report, Ms Mallia concluded that, on the balance of probabilities,
it could not be concluded that Mr Greenfield had made a death threat.
She said that Mr Greenfield used ‘harsh words, in a threatening
manner’.127
151. Although Ms Mallia made reference in her report to the balance of
probabilities, and well understood the meaning of that expression, she
did not undertake any real weighing exercise when considering the
evidence before her. In fairness to her, of course, some of the evidence
tendered to the Commission was not before her. And what evidence
she did have has probably been examined much more thoroughly by
the four sets of lawyers (now five since Mr Parker’s separate
125 Submissions on behalf of the CFMEU, 14/11/14, Pt 8.4, para 45. 126 Fitzpatrick MFI-1, 15/7/14, pp 68-80. 127
Fitzpatrick MFI-1, 15/7/14, p 78.
1290
representation) who have examined it in the Commission. Four of
those lawyers (those for the CFMEU, Mr Parker, Ms Raju and Mr
Fitzpatrick) were deeply adversarial in approach.
152. In this regard, there were a number of significant factors weighing in
favour of Mr Fitzpatrick’s version of events. They are set out. They
include Mr Fitzpatrick’s account of the incident, the nature of Mr
Fitzpatrick’s immediate response, and accounts given by Ms Raju and
Mr Thomas about how Mr Fitzpatrick had reacted, what he had said,
and how shocked he appeared.
153. There was, in contrast, really only one piece of evidence to the
contrary, namely the account given by Mr Greenfield. That account, as
already noted, was not consistent with the nature and extent of Mr
Fitzpatrick’s reaction to the events as recounted by him and observed
by others.
154. Ms Mallia did not undertake any review of the phone records, even
though they were at her disposal. A review would have shown that Mr
Greenfield had spoken to someone on Mr Parker’s phone (either Mr
Parker or Ms Wray) for almost two and a half minutes prior to the
death threat call. That review would also have shown that Mr
Greenfield did not, contrary to his statement to Ms Mallia, ring Mr
Parker immediately after the death threat call.
155. Ms Mallia was in a less advantageous position than the Commission.
But even if she found it hard to accept Mr Fitzpatrick, it is very
difficult to see why she did not either accept Mr Fitzpatrick or
conclude that it was not possible to choose between him and Mr
1291
Greenfield. To conclude that Mr Greenfield was the more likely
verges on the irrational, with respect.
Persistent attempts to remove Mr Fitzpatrick
156. In and after May 2013 Mr Fitzpatrick continued to pursue Mr Alex
about his outstanding entitlements to his workers. He continued to
raise difficult questions concerning the nature and extent of the union’s
dealings with companies associated with Mr Alex. There were now
published reports about Mr Alex associating with criminals. It was
clear that Mr Alex was a phoenix operator who ran various businesses
through one insolvency after another.
157. There then began a sustained campaign within the NSW Branch to
force Mr Fitzpatrick out of the union.
158. As earlier noted, consideration was being given to Mr Fitzpatrick’s
removal and calculations as to the cost of that exercise were well
underway in May 2013.
159. Mr Fitzpatrick was then demoted and had many of his responsibilities
taken away.128 In this regard, on 1 July 2013 there was a Committee of
Management meeting where it was agreed that Mr Fitzpatrick’s role
would be abolished.129
128 Brian Fitzpatrick, 15/7/14, T:37.39-41. 129 Brian Fitzpatrick, witness statement, 14/7/14, para 78; Submissions of counsel assisting, 31/10/14, paras 97-98; CFMEU submissions, chapter 8.4, para 39.
1292
160. On 1 July 2013, there was a joint meeting between the Branch’s
Committee of Management and the union organisers.130
161. Mr Fitzpatrick was barred from attending the part of the meeting that
concerned the incident. He later discovered that some of those
attending the meeting —Mr Steve Costigan and Mr Denis
McNamara— had pressed for Mr Fitzpatrick to be sacked.131 Mr
Costigan and Mr McNamara were friends of Mr Parker. They had
obtained seats on the Committee of Management through Mr Parker.132
Counsel for Mr Parker submitted that he could not be responsible for
the actions of his friends.133 This is to take one incident for which Mr
Parker may have limited responsibility in isolation. In fact it is one of
a long series of incidents, many of which Mr Parker had a
responsibility for.
162. On 1 July 2013,134 Mr Fitzpatrick was vilified by a committee of
management worker as an ‘arsewipe’ and a ‘dog’.135
163. Then, after July 2013 Mr Parker began threatening Mr Fitzpatrick with
the sack. However Mr Fitzpatrick pointed out to Mr Parker that in
circumstances where he knew what Mr Parker had done in relation to
the leak of the Zanatta spreadsheets by the Cbus employees, Mr Parker
would not dare to sack him. And so it proved to be.
130 Brian Fitzpatrick, 15/7/14, T:31.42-43. 131 Brian Fitzpatrick, 15/7/14, T:31.44-46; Brian Fitzpatrick, witness statement, 14/7/14, para 78. 132
Brian Fitzpatrick, witness statement, 14/7/14, para 78. 133 Submissions on behalf of Brian Parker, 21/11/14, para 22. 134
Corrected by Rita Mallia, witness statement, 15/8/14, para 111. 135 Brian Fitzpatrick, witness statement, 14/7/14, p 179; Fitzpatrick MFI-1, 15/7/14, p 229.
1293
164. With the threat to sack Mr Fitzpatrick having come to nothing, a new
strategy was deployed. Mr Ferguson, who was no doubt perceived by
Mr Parker and others to have the respect of Mr Fitzpatrick, went to see
Mr Fitzpatrick in his office.
165. According to Mr Fitzpatrick, at some time which is not entirely clear,
they had the following conversation:136
Ferguson: Look, you’re 69 mate. You’re only a few months off 70. Why don’t you just go?
Fitzpatrick: The only way you are going to get rid of me is to sack me. If they sack me, I will take them on. The union has got no right to be treating me this way. I’m staying.
Ferguson: They’re going to make your life hell, you know. You will be digging holes from here until the end.
Fitzpatrick: Well, so be it. I’ve made my mind up. That’s it.
Ferguson: Look, I can get you 12 months wages and conditions, help minimise it legally with the tax system and all that sort of thing.
Fitzpatrick: I’m not interested in that. I want to see my time out and leave on my own terms. I deserve that. I have been here a lot of years. What’s happening is wrong.
Ferguson: Look, how long is your term to go before the next elections. Is it about 2 1/2 years? I’ll go for that. Get you pay, wages and conditions for that period.
166. At this point in the conversation Mr Fitzpatrick was taken aback about
the value of the offer being put to him. It was a proposal which, in
dollar terms, was of the order of $300,000. This made Mr Fitzpatrick
136 Brian Fitzpatrick, witness statement, 14/7/14, para 117.
1294
Feel uncomfortable, and he therefore refused the offer. The
conversation then continued:137
Ferguson: I’m very confident I can get you your balance and wages for the full 3 year term.
Fitzpatrick: That’s something I couldn’t come at. I don’t deserve it and it would look like a pay off or whatever you call it. I don’t want my 25 years seen to be finishing up where I’m taking 3 years of money for a payout.
167. Sometime later Mr Ferguson returned and said that he had spoken to
Mr Parker and Ms Mallia about it and he was able to confirm the offer
previously made. Mr Fitzpatrick said ‘Look Andrew, we’ve been
through this. I’ve got an hour and a half to waste if you have, but
nothing is going to change. I’m not taking it. That’s it.’ 138 Mr
Ferguson said he would let Mr Parker and Ms Mallia know.
168. Mr Ferguson denied some aspects of these conversations. However he
did ultimately accept, after some obfuscation, many parts of the
conversation that Mr Fitzpatrick described.
169. In particular, it is now not controversial that Mr Ferguson approached
Mr Fitzpatrick at Mr Parker’s request, and that the discussion
concerned Mr Fitzpatrick’s possible exit from the union, and the terms
upon which that might occur. Further, it is not controversial that Mr
Fitzpatrick was not persuaded, at that time, to resign.
170. On 16 September 2013, an organiser, Mr Terry Kesby, wrote to Mr
Parker and Ms Mallia complaining of the treatment being meted out to
137 Brian Fitzpatrick, witness statement, 14/7/14, para 117. 138 Brian Fitzpatrick, witness statement, 14/7/14, para 118.
1295
Mr Fitzpatrick, and saying that he was appalled at what he described as
a conspiracy to discredit or terminate Mr Fitzpatrick.139
171. The threat of sacking Mr Fitzpatrick had failed. Mr Parker’s approach
to Mr Fitzpatrick through Mr Ferguson had also not borne fruit. Yet
another strategy was invoked, this time issuing formal correspondence
to Mr Fitzpatrick about alleged misbehaviour around the office.
172. In this regard, Mr Parker signed and sent to Mr Fitzpatrick a letter
dated 3 September 2013.140
173. The letter began by stating that there were ‘a number of issues in
relation to your conduct that have arisen recently’. The issues were
said to be of a ‘serious nature’ and a written response was demanded
within 48 hours. A number of alleged incidents were then set out.
Shortly stated, the allegations were that (a) on one occasion Mr
Fitzpatrick wandered up and down the corridors of the office speaking
loudly about the unavailability of union officials, (b) Mr Fitzpatrick
sought access to the union’s wage claims file for Action ‘without any
legitimate reason for doing so’, (c) Mr Fitzpatrick had demanded a
meeting with Mr Parker about an email that he thought was
demeaning, (d) Mr Fitzpatrick showed animosity and acted
inappropriately towards another employee, Ms Wray.
174. It would be difficult to conceive of a more contrived and less
convincing disciplinary letter from one officer of the CFMEU to
another. All but the last were relatively minor personality-related
139 Fitzpatrick MFI-1, 15/7/14, p 229; Brian Fitzpatrick, witness statement, 14/7/14, p 179. 140 Fitzpatrick MFI-1, 15/7/14, pp 224-225.
1296
incidents that senior and seasoned unionists, dealing with large scale
industrial and workplace conflict on a daily basis, would be well able
to manage without correspondence of the kind that Mr Parker
generated.
175. This letter was sent to Mr Fitzpatrick out of the blue. He had not had
prior discussions with Mr Parker or others about the matters in the
letter. Mr Fitzpatrick’s behaviour in and around the office had not
altered in any material way across his 25 years of service (although in
his letter to Mr Parker and Ms Mallia of 16 September 2013 Mr Kesby
described Mr Fitzpatrick as having mellowed in recent years). 141 He
was outspoken. He was gruff. No doubt he had the propensity to
ruffle feathers from time to time. There was nothing new in any of
this. The union prides itself on having representatives who are not
renowned for their diplomacy, and they live with and manage the
personality issues that arise as a result. They had done so in the case of
Mr Fitzpatrick for many years. The change in management’s
behaviour only occurred after Mr Fitzpatrick had agitated over the
union’s relationship with Mr Alex, and after attempts to remove Mr
Fitzpatrick had failed.
176. A further letter was sent by Mr Parker to Mr Fitzpatrick on 13
September 2013.142 This letter complained that Mr Fitzpatrick had
been talking to other people about the letter of 6 September 2013, and
that this somehow constituted a ‘serious breach of your obligations as
an employee’. That allegation was absurd. There was no reason why
141 Fitzpatrick MFI-1, 15/7/14, p 229; Brian Fitzpatrick, witness statement, 14/7/14, p 179. 142 Fitzpatrick MFI-1, 15/7/14, p 227.
1297
Mr Fitzpatrick could not discuss his position with colleagues if he
chose to do so. Mr Parker’s earlier letter of 3 September 2013 did not
make any request for confidentiality.
177. On 16 September 2013 Mr Fitzpatrick sent a letter to Ms Mallia
responding to the allegations and denying wrongdoing on his part.143
178. After all of these events had occurred, Mr Fitzpatrick received a
telephone call from Mr Frank O’Grady. Mr O’Grady was a long time
union representative based in Melbourne. He was someone Mr
Fitzpatrick had known for many years and regarded well. This was no
doubt common knowledge in the CFMEU office. Ms Mallia had
arranged for Mr O’Grady to become involved.144 Mr O’Grady told Mr
Fitzpatrick that he was coming to Sydney and would like to have a
meeting with him. Mr Fitzpatrick agreed.145
179. During the meeting that was arranged, they had the following
conversation:146
O’Grady: Look mate, they are going to sack you. You should not go out like this.
Fitzpatrick: They aren’t going to sack me mate. Just drop the crap.
O’Grady: Look I can get you paid the rest of the term, 3 years and throw in the car too.
143 Fitzpatrick MFI-1, 15/7/14, p 228. 144 Mallia MFI-1, 25/9/14, p 13. 145
Brian Fitzpatrick, witness statement, 14/7/14, para 124. 146 Brian Fitzpatrick, witness statement, 14/7/14, para 125.
1298
Fitzpatrick: Mate, I’m not going to take it. I can’t take it. The moment I leave they will say that I was corrupt and they had to pay me off to get rid of me.
180. The conversation then continued for some time. Mr Fitzpatrick was
able to discuss his experiences with someone he knew and trusted.
During the discussions Mr O’Grady continued to express his view that
the best thing for Mr Fitzpatrick was to leave. Mr Fitzpatrick started to
feel persuaded that accepting a redundancy would be better than
fighting further. He said to Mr O’Grady that he had proven to himself
and those around him that the union had not been able to sack him.
181. Ultimately Mr Fitzpatrick was persuaded that accepting a redundancy
package was something he could live with. He said, ‘Alright I’ll leave.
Pay me 12 months of my conditions and it’s done.’147 Mr O’Grady
asked him whether he wanted the car thrown in as well, and Mr
Fitzpatrick said he would take it if it could be organised.
182. They then returned to the Lidcombe office and Mr O’Grady said he
would go and speak with Mr Parker. Five or so minutes later Mr
O’Grady came back to Mr Fitzpatrick and said ‘It’s a deal. A year and
the car.’148
183. By the end of that week the terms of the severance between Mr
Fitzpatrick and the CFMEU had been agreed, and a deed of settlement
dated 26 September 2013 was executed.149 The deed provided for Mr
Fitzpatrick to resign from his position forthwith, and for him to receive
147 Brian Fitzpatrick, witness statement, 14/7/14, para 127. 148 Brian Fitzpatrick, witness statement, 14/7/14, para 128. 149
Fitzpatrick MFI-1, 15/7/14, pp 232-237.
1299
an eligible termination payment of $132,266.89 together with accrued
entitlements totalling $49,301.61.
184. On the following day, 27 September 2013, Mr Fitzpatrick sent a letter
to the committee of management of the NSW Branch resigning from
the position of branch organiser and as delegate to the national
conference.150
185. Counsel for Mr Parker submitted that there is no adequate evidence
that any of the dealings with Mr Fitzpatrick about the terms on which
he would leave his employment with the CFMEU was connected with
the alleged death threat incident, because there were many other factors
involved.151 But the death threat incident was a crucial incident,
leading to two ineffective inquiries in 2013 and much ill-will towards
Mr Fitzpatrick.
Mr Parker’s misleading statements to the public and members
186. In early 2014 Mr Fitzpatrick was interviewed by members of the press
and gave an account of the way in which he was treated.
187. In response, Mr Parker issued a series of contrived and misleading
statements to the public,152 and to the members of the CFMEU.153
150 Fitzpatrick MFI-1, 15/7/14, p 238. 151 Submissions on behalf of Brian Parker, 21/11/14, para 23. 152
Parker MFI-1, 3/10/14, pp 159-160. 153 Parker MFI-1, 3/10/14, pp 161-163.
1300
188. Mr Parker declared to the public and to the union’s members that
‘these are the facts’ in relation to the death threat incident. The so-called ‘facts’ were set out in six short bullet points:
• The CFMEU legal department called the police as soon as Mr Fitzpatrick alerted them to it.
• He did not pursue the matter with the police and as far as I am aware the police did not pursue the matter.
• An investigation was conducted internally.
• Mr Greenfield denied making the threat. The union could not form a conclusion that Mr Fitzpatrick’s allegations were true.
• The union took steps to remind officials of their responsibilities and the expected code of conduct in the union.
• Mr Fitzpatrick did not pursue a review of the outcome through the processes available to him in the Union.
189. The fourth bullet point was misleading, in that though Mr Greenfield
denied making the threat on many occasions, he does not seem to have
denied it to Mr Parker in the late afternoon of 27 March 2013.154
190. Mr Parker’s six bullet points also reflect a very selective slice of the
facts actually known to him at the time.
191. Other critical facts known to Mr Parker but withheld from the public
and the union’s members included that:
(a) to the observation of both Mr Thomas and Ms Raju on 27
March 2013, Mr Fitzpatrick was greatly shaken by the call,
requested immediate aid from lawyers and police and
154 Radhika Raju, 15/7/14, T:93.25-95.13.
1301
continued to be greatly shaken even after it was discovered
that the caller was not Mr Fraser but Mr Greenfield. Anyone
who was informed of these facts would have had little
difficulty appreciating from all of the relevant circumstances
that Mr Greenfield had made, at the very least, an extremely
aggressive and highly personal threat directed to Mr
Fitzpatrick’s safety;
(b) on any reckoning, Mr Greenfield had called Mr Fitzpatrick
that day and abused and threatened Mr Fitzpatrick on the
phone call, and worse, to Mr Parker’s knowledge, had
threatened to ‘destroy’ Mr Fitzpatrick. Again, none of these
facts were revealed by Mr Parker’s statements to members
and the public. Indeed the very fact that there had even been a
telephone call between Mr Greenfield and Mr Fitzpatrick on
the day in question was not disclosed in the announcements.
It was studiously avoided;
(c) to many people outside the union movement the call, even on
Mr Greenfield’s account of it, would have been extremely
alarming. The press release gives a rather bland impression.
It misled the public as to the true nature of the call even on
Mr Greenfield’s ‘innocent’ version; and
(d) Mr Greenfield had spoken to someone on Mr Parker’s mobile
phone for two and a half minutes immediately prior to his
threatening call to Mr Fitzpatrick.
1302
192. The statements issued by Mr Parker included that the union could not
tell whether ‘Mr Fitzpatrick’s allegations were true’. This, coupled
with the incomplete account of the relevant events, carried with it the
implicit suggestion that Mr Fitzpatrick (not Mr Greenfield) was the one
whose word could not be believed.
193. Mr Parker, Ms Mallia and the many other union officials and press
advisers who were involved in the preparation of this statement did not
want the public or members to be informed of all of the facts so that
they could make their own assessment.
194. This betrays a consciousness, on the part of Mr Parker and Ms Mallia,
that a revelation of all relevant facts would demonstrate the likelihood
that Mr Fitzpatrick’s version of events was correct.
The Slevin investigation
195. In early 2014, Mr Tony Slevin of counsel was retained by CFMEU’s
solicitors, Slater & Gordon Lawyers, to investigate a number of issues.
One was the union’s response to the death threat allegation. Mr Slevin
was supported by Mr Thomas Roberts, senior national legal adviser,
Construction and General Division, CFMEU.
196. When news of the death threat incident became public, the CFMEU
made much of the fact that Mr Slevin had been commissioned to
undertake an investigation.
197. What the union did not make clear was that Mr Slevin had been
instructed not to undertake any investigation into the death threat
1303
incident itself. This is apparent from the terms of his report, and the
fact that he was not instructed to speak with key witnesses to the event,
such as Ms Raju or Mr Thomas. Mr Slevin’s instructions were limited
to considering the adequacy of the Branch’s investigation into the
incident.
C - LEGAL AND OTHER ISSUES
Use of a carriage service to make a death threat
198. Under section 474.15 of the Criminal Code 1995 (Cth) it is an offence
to use a carriage service to threaten to kill another with the intent to
lead the other to fear the threat will be carried out.
199. The penalty for a contravention of this section is imprisonment for 7
years.
200. Section 7 of the Telecommunications Act 1997 (Cth) defines a carriage
service as ‘a service for carrying communications by means of guided
and/or unguided electromagnetic energy’. A telephone call clearly
constitutes use of a carriage service.
201. Section 474.15(3) of the Criminal Code 1995 (Cth) states that it is not
necessary that the person receiving the threat actually fear that the
threat will be carried out.
202. In this regard, Mr Greenfield may have used a carriage service, namely
his telephone, to threaten to kill Mr Fitzpatrick. He may have done so
1304
with an intention that Mr Fitzpatrick would fear that the threat would
be carried out.
Use of a carriage service to menace
203. Under section 474.17 of the Criminal Code 1995 (Cth) it is an offence
to use a carriage service in a way reasonable persons would regard as
menacing, harassing or offensive in the circumstances.
204. The penalty is imprisonment for 3 years.
205. As previously discussed, a telephone call constitutes use of a carriage
service.
206. In JL Holland v GJ Cocks & Anor,155 it was held that the word
‘menace’ does not have a clear definition, and that generally speaking
it is clear that ‘menace’ means a threat and should be construed liberal
so as to encompass more than the threat of physical violence.
207. The call made by Mr Greenfield to Mr Fitzpatrick on 27 March 2013
was one which reasonable persons may regard as menacing, harassing
or offensive in the circumstances. This is so regardless of which
version of the call one accepts. Even on Mr Greenfield’s version, the
call was very threatening, harassing and offensive. It is recommended
that this Interim Report be referred to the Commonwealth Director of
Public Prosecutions in order that consideration may be given to
whether Darren Greenfield should be charged with and prosecuted for
155 Unreported, NSWSC, Hidden J, 1997.
1305
offences against s 474.15 and s 474.17 of the Criminal Code 1995
(Cth).
Common assault
208. A threat to kill can constitute common assault. Under Section 61 of the
Crimes Act 1900 (NSW), it is an offence to assault a person without
occasioning actual bodily harm. The penalty is two years
imprisonment.
209. The elements of common assault are found at common law. In Pemble
v R,156 Owen J set out the elements of assault as follows:
(a) the actus reus of assault consists in the expectation of physical
contact which the offender creates in the mind of the person
whom he threatens; and
(b) the mens rea consists in the realisation by the offender that his
demeanour will produce that expectation.
210. The threat must create the expectation of immediate violence.157
Assault may be committed through a telephone call.158
211. By calling Mr Fitzpatrick and using the language he did, Mr Greenfield
created an expectation of immediate harm in Mr Fitzpatrick’s mind.
156 [1971] HCA 20. 157 R v Knight (1988) 35 A Crim R 314. 158
R v Ireland [1998] AC 147.
1306
This is apparent from his reaction witnessed by Ms Raju and Mr
Thomas and the fact the police were called.
212. Mr Greenfield, in clearly articulating a death threat and a screaming
tone of voice, may have realised that his demeanour would create an
expectation of fear in Mr Fitzpatrick’s mind and may have intended
that it do so.
213. It is recommended that this Interim Report be referred to the New
South Wales Director of Public Prosecutions in order that
consideration may be given to whether Darren Greenfield should be
charged with and prosecuted for common assault contrary to s 61 of
the Crimes Act 1900 (NSW).
Unprofessional conduct of Mr Greenfield, Ms Mallia and Mr Parker
214. The NSW Branch published code of conduct for officers provides that
no officer engaged by the union shall converse in an abusive or
derogatory manner towards any person.
215. Clause 51(b) of the Rules for the Construction and General Division of
the CFMEU provides that any officer of a divisional Branch may be
removed from office by a two thirds majority of the divisional Branch
management committee where the officer has been charged and found
guilty of ‘gross misbehaviour or gross neglect of duty’.
216. Mr Greenfield’s conduct towards Mr Fitzpatrick may have been a
serious breach of the code of conduct and may have constituted gross
1307
misbehaviour within the meaning of that expression in clause 51(b) of
the Rules.
217. Notwithstanding the way in which Mr Greenfield acted, and the
unsurprising effect it had on Mr Fitzpatrick, no meaningful disciplinary
action was taken against Mr Greenfield. His word was effectively
preferred to that of Mr Fitzpatrick, notwithstanding the weight of
evidence to the contrary. He was given the mildest possible reprimand,
and merely provided with a copy of the officers’ code of conduct that
he had breached so comprehensively.
218. Mr Fitzpatrick meanwhile, the victim of the attack, was marginalised
and made the subject of repeated attempts to remove him from the
union because he was prepared to speak out in respect of the union’s
questionable behaviour.
219. By ignoring the death threat incident and not ensuring the proper
investigation of it, and by instead turning on Mr Fitzpatrick and
embarking on a campaign to have him removed from the union (which
campaign began before there had even been an investigation into the
matter), Mr Parker may have engaged in a ‘gross neglect of duty’
within the meaning of that expression in the Rules. In doing so he may
have breached the professional standards expected of them. By so
acting, he may have demonstrated an unwillingness or inability to
conduct himself to a standard that is expected of them by members of
the CFMEU and the community at large.
220. It is recommended that this Interim Report be referred to the
Management Committee of the New South Wales Divisional Branch of
1308
the Construction and General Division of the CFMEU in order that
consideration may be given to whether any action should be taken
against Mr Parker under r 51 of the Rules for the Construction and
General Division of the CFMEU.
221. Counsel for Mr Parker submitted that the Interim Report should
contain no findings that Mr Parker had breached the Code of Conduct.
They submitted that it was for the union itself ‘to weigh up all the
relevant considerations from an internal perspective in deciding what
order would be “appropriate action”. The Royal Commission cannot
put itself in that position and should therefore not make any findings
on the basis of the Code of Conduct’.159
222. Given the point made in the first sentence, it is desirable for the
Divisional Branch Management Committee to examine the question.
The making of the recommendation just indicated does not involve
behaviour of the kind to which Mr Parker’s submission objects.
223. It is not proposed to make a like recommendation in relation to Ms
Mallia. Compared to Mr Parker, she lacks real power. Her report was
not satisfactory, but it was made in difficult circumstances. It does not
seem just to describe it as a ‘gross neglect of duty’. And it is not
proposed to make a recommendation for Mr Greenfield. To do so
might involve an element of double jeopardy.
159 Submissions on behalf of Brian Parker, 21/11/14, para 5.
1309
1310
CHAPTER 8.5
CFMEU NSW DEALINGS WITH ALEX COMPANIES
Subject Paragraph
A - INTRODUCTION 1
B - MR BARRIOS 2
George Alex and companies associated with him 2
Active 8
Metropolis 20
Capital 23
Events involving Mr Barrios 28
18 August 2014 telephone call between Mr Barrios and Mr Parker 29
20 August 2014 communications between Mr Parker and Mr Hourani 31
20 August 2014 telephone call from Mr Alex to Mr Barrios 34
COM decision to withdraw the applications 37
Mr Parker’s reactions to the COM decision 38
Gross misconduct by Mr Parker 49
1311
A - INTRODUCTION
1. The written submissions of counsel assisting describe the progress of
investigations into dealings between Mr Parker, Mr Greenfield and Mr
George Alex. Because the investigation will continue next year, it is
undesirable to say anything about these dealings, save in one respect.
The submissions of counsel assisting are factually uncontroversial.
The CFMEU said of the views expressed by Mr Parker about Mr
Barrios, which are quoted below, that they ‘are indefensible and the
CFMEU does not condone or adopt them in any way’.1 This is a
strong thing for the CFMEU to say of its own State Secretary. The
facts are as follows.
B - MR BARRIOS
George Alex and companies associated with him
2. Mr Alex is a Sydney based undischarged bankrupt. He reportedly has
relationships with convicted criminals. He was made bankrupt on 19
April 2011 following the hearing of a creditor’s petition filed by the
Deputy Commissioner of Taxation.2
3. A photograph published in the Sydney Morning Herald on 10 March
2013 showed Mr Alex arm in arm with various persons attending a
1 CFMEU submissions, 14/11/14, Pt 8.5, para 6. 2 CFMEU MFI-6, 28/10/14.
1312
$3,000 a head private event with the former world champion boxer
Mike Tyson.3
4. In the photograph, Mr Alex has his right arm around Mr Bilal Fatrouni.
That gentleman has been convicted and jailed in relation to steroid and
gun charges. Pictured on the other side of the group is Mr Sam
Hamden, a former Commancheros bikie, and Mr Khaled Sharrouf, a
man convicted and jailed in relation to a terror plot. The article reports
that Mr Alex was once in business with Mr Peter Sidirourgous, a
convicted amphetamine manufacturer.
5. Mr Alex has, and has had, an underlying interest in and control over
various businesses operating in the commercial construction industry
in NSW. Of particular relevance for present purposes are:
(a) a labour hire business run through companies using the name
‘Active’. As the business becomes insolvent, one Active
company is wound up and another is created to take its place.
The most recent Active company has only just failed;
(b) recently failed labour hire, traffic management and security
businesses run by a company called ‘Metropolis’.
6. Questions have also been raised as to whether Mr Alex has an interest
in or exercises some control over a labour hire, traffic management and
security business run by a company called Capital, which has
essentially had the Active and Metropolis business and assets
3 Parker MFI-1, 3/10/14, p 61.
1313
transferred to it following the financial collapse of those two
companies.
7. A little history of the Active, Metropolis and Capital businesses is
needed in order to place the events of August 2014 concerning Mr
Parker and Mr Barrios in some context.
Active
8. A company called Active Workforce (NSW) Pty Ltd (Active
Workforce NSW) was registered on 2 November 2009.4 Mr Alex’s
sister, Ms Athina Alex, was appointed a director of this company on 29
March 2010. The shareholders of Active Workforce NSW were, at the
relevant time, various corporations, including another ‘Active’ entity.
9. Active Workforce NSW was granted an initial enterprise bargaining
agreement by the CFMEU in April 2010. It was granted a further
agreement on or about 7 June 2011. The latter agreement had a
nominal expiry date of 30 June 2014.
10. On 20 April 2012 (that is, only some 9 months into the life of the
second agreement and long before its expiry date) administrators were
appointed to Active Workforce NSW. The company entered into a
deed of company arrangement in June 2012 and subsequently, on 28
February 2014, liquidators were appointed.5
4 Parker MFI-2, 3/10/14, Tab 3, p 36. 5 Parker MFI-2, 3/10/14, Tab 3, pp 39-40.
1314
11. Not long before the appointment of administrators to Active Workforce
NSW, a new Active company, Active Labour Pty Ltd (Active Labour)
was incorporated.6 It was registered on 3 February 2012. At that time
its directors and shareholders included Ms Alex, Mr Joe Antoun and
(subsequently) Mr Mazen Hourani. Mr Hourani is now the sole
director and shareholder.
12. Shortly after that, and on 5 June 2012, another Active company, Active
Site Payroll Services (NSW) Pty Ltd was incorporated (Active
Payroll).7 Mr Alex was not recorded on the Australian Securities and
Investments Commission (ASIC) register as a director or shareholder.
13. In October 2012 the CFMEU entered into an enterprise bargaining
agreement with Active Payroll. The agreement had a nominal expiry
date of 30 June 2014.
14. In 2013 Active Payroll ran into financial difficulties and liquidators
were appointed to it on 6 August 2013.8 Large sums of money were
owed to its workers.
15. Arrangements were then made for the employees of Active Payroll to
be transferred across to Active Labour. On 16 September 2013, Ms
Rita Mallia, the NSW Branch President, met Mr Hourani and Mr Alex.
6 Parker MFI-2, 3/10/14, Tab 20, p 360. 7 Parker MFI-2, 3/10/14, Tab 17, p 284. 8
Parker MFI-2, 3/10/14, Tab 17, p 285.
1315
It was agreed that Active Labour would meet the arrears that had been
accrued under Active Payroll.9
16. By the end of 2013 and into the start of 2014, the promise by Active
Labour to pay Active Payroll’s arrears had not been honoured. Active
Labour itself was falling behind.
17. An email dated 22 January 2014 from Mr Dennis Matthews of the
Australian Construction Industry Redundancy Trust (ACIRT) reveals
that Active Labour had made an ACIRT payment for December 2013,
but the cheque had been dishonoured. He indicated that the only other
payment that had been received was for July 2013. But that cheque
had also been dishonoured. The email concluded with confirmation
that the company had effectively made no payment since 1 July 2013.10
18. Documents produced by the CFMEU reveal that progress was only
made when a factoring agency called FIFO Capital, a director of which
was Mr Lindsay Kirschberg, ultimately agreed to provide financial
assistance to Active Labour. On about 20 January 2014 Mr Kirschberg
sent confirmation to the CFMEU, at Mr Hourani’s request, of the fact
that substantial payments had been made to meet some of Active
Payroll’s arrears.11
19. The drain on Active Labour in making such a substantial payment in
respect of arrears in January 2014 took a heavy toll on the company.
9 Rita Mallia, 25/9/14, T:443.18-35. 10 Greenfield MFI-2, 3/10/14, p 48. 11
Greenfield MFI-2, 3/10/14, pp 46-47.
1316
By the middle of June 2014 Active was again in arrears. Its position
continued to deteriorate. Active Labour is now in administration.12
Metropolis
20. Another group of businesses in which it has been suggested that Mr
Alex has had an interest were those run by Metropolis Traffic Control
Pty Ltd (Metropolis).13 These are labour hire, a traffic management
and security businesses.
21. Each of Mr Douglas Westerway and Mr James Kendrovski said in his
evidence that Mr Alex has an ultimate stake in those businesses, even
though he is not recorded on ASIC’s register as being either a
shareholder or director.14
22. As with Active Labour, the Metropolis businesses were under great
financial stress during 2014, again to the point where moneys owed by
builders to the company have had to be paid directly to the CFMEU.
Metropolis ended up heavily in arrears in meeting employee
entitlements, and had receivers and managers appointed to it in July
2014.15
12 Parker MFI-2, 3/10/14, Tab 20, p 363. 13 Parker MFI-2, 3/10/14, Tab 38, p 605. 14
Douglas Westerway 1/9/2014 T:62-63; James Kendrovski, 1/9/2014, T:101. 15 Parker MFI-2, 3/10/14, Tab 38, p 608.
1317
Capital
23. A new company, Capital Workforce Pty Ltd (Capital), arrived on the
scene in 2014.16 That was a time when both Active Labour and
Metropolis were struggling financially. Mr Hourani is a director of
Capital.
24. Records in respect of the arrears owed by Metropolis and Active
Labour demonstrate that both were obtaining financial assistance from
Mr Kirschberg (who has now left FIFO Capital and established his
own company Agon Enterprises Pty Ltd) and that they were pooling
the companies’ funds for distribution in accordance with the agreement
of all concerned.
25. In this regard, Ms Keryn McWhinney (Senior Industrial Officer at the
CFMEU) met with Mr Hourani and others to discuss the affairs of
Metropolis and Active Labour. The notes of that meeting appear to
refer to Mr Hourani saying that he wanted Active Labour’s money to
go to Metro superannuation and ACIRT.17 Those notes include a
diagram showing arrows going from both Metropolis and Active
Labour to Capital.18
16 Parker MFI-2, 3/10/14, Tab 41, p 709. 17 Mallia MFI-1, 25/9/14, p 23. 18
Mallia MFI-1, 25/9/14, p 24.
1318
26. Mr Parker understood that the intention was for Capital to assume the
business of Active Labour and Metropolis. He said so in a telephone
conversation that he had with Mr Barrios on 18 August 2014.19
27. On 8 August 2014 Mr Parker signed three enterprise bargaining
agreements with Capital and caused applications to be filed with the
Fair Work Commission for those agreements to be approved by it.20
Events involving Mr Barrios
28. Mr Barrios is a carpenter. He works for Brookfield Multiplex. He has
acted as a CFMEU delegate for the last 19 years.21 He is a long
serving member of the NSW Branch’s Committee of Management, and
before that the union’s State Council.22 In August 2014 he was to
become embroiled in the Capital/Mr Alex matter, and be vilified by Mr
Parker, in a way he could not have anticipated.
18 August 2014 telephone call between Mr Barrios and Mr Parker
29. On 18 August 2014 Mr Barrios had a telephone conversation with Mr
Parker. During that conversation they discussed the Capital enterprise
bargaining agreements.23
19 Parker MFI-6, 3/10/14, pp 7-8. 20 Parker MFI-2, 3/10/14, Tab 47, p 802ff. 21
Mario Barrios, 1/9/2014, T:125.39. 22 Mario Barrios, 1/9/2014, T:126.1-12. 23
Parker MFI-6, 3/10/14, pp 7-10.
1319
30. During the telephone conversation on 18 August 2014 Mr Parker and
Mr Barrios discussed the emergence of Capital. They discussed
whether Mr Alex was associated with it. They also discussed whether
Mr Parker had done the right thing in signing agreements in favour of
Capital. In this context, Mr Barrios made the following statements:
I think they’re just bullshitting to us.
I just think that they’re just having a go at us. I just think that it’s the same people involved, with the same excuses as before, and I hope you don’t end up with egg on your face and in another six, seven months’ time they’re behind again.
You know, these - these people, they just keep rebirthing themselves with a different name, take over, take over, and they haven’t fixed the problem from three companies ago, never mind the last one.
20 August 2014 communications between Mr Parker and Mr Hourani
31. A couple of days after that conversation, Mr Parker rang Mr Hourani, a
director of Capital, and left a message saying that it was important that
they speak.24
32. Mr Hourani then rang Mr Parker back. During that conversation Mr
Parker referred to the fact that a journalist had started raising questions
about Capital and Mr Alex, and that ‘one of my committee of
management has been fucking on a tangent about this…constantly all
the time. He’s been saying to me that “No, George Alex is involved in
all these companies”’.25
24 Parker MFI-5A, 3/10/14. 25 Parker MFI-5B, 3/10/14
1320
33. Mr Parker agreed that he possibly told Mr Hourani, at some point, that
Mr Barrios was the committee of management member to whom he
was referring.26
20 August 2014 telephone call from Mr Alex to Mr Barrios
34. In the early evening of that same day, 20 August 2014, Mr Alex
telephoned Mr Barrios’s mobile phone. The two had never spoken or
met before.
35. According to Mr Barrios, Mr Alex said words to the following effect:27
It’s George Alex here. I want to come and visit you. I want to know why you’re talking so much shit about me. I know you’re in bed with Tony Balisto. Where do you work? I’m a very patient person, Mario, but I’m running out of patience with you. Where do you work? I will see you tomorrow.
36. After receiving this call from Mr Alex, Mr Barrios contacted Ms
Mallia and Mr Parker and alerted them to it. He then went to the
police station and reported the incident to the police.28
COM decision to withdraw the applications
37. About a week or so after this incident, and in late August 2014, the
Branch Committee of Management met and decided that the
application for approval of the Capital enterprise bargaining
agreements that Mr Parker had initiated should be withdrawn. This
26 Brian Parker, 3/10/14, T:598.8. 27 Mario Barrios, 1/9/14, T:127.12-27. 28
Mario Barrios, 1/9/14, T:126.29-34.
1321
decision was made based on the complaints that Mr Barrios had
raised.29
Mr Parker’s reactions to the COM decision
38. Mr Parker contacted Mr Hourani and reported this event to him. In
that discussion Mr Parker said that he was ‘devastated about pulling
the EBAs’.30 Mr Parker’s devastation was such that he said he was in
a ‘heat of rage’.31
39. On 28 August 2014 he spoke to Mr Rob Kera, the NSW Branch
Assistant Secretary. In that conversation the following exchanges took
place:32
Parker: I’ve just got to stop myself from fucking bashing fucking the other bloke today.
Kera: Who is that?
Parker: Barrios.
Kera: Oh okay. Fair enough.
Parker: I’ve got to stop meself because I will. The tension is pretty fucking high and Rita is a bit worried, you know. I said ‘Well, don’t be worried because it will be all over in fucking - five seconds.’ I said, ‘You’ve never seen me unleash.’ I said, ‘I’ve been building up this up for a fortnight’, you know. I said, ‘The problem is if I fucking end up doing it, you know, it will end up - you know, he’ll end up fucking doing a stint in hospital, I’m fucking telling you, because I won’t stop.’
29 Brian Parker, 3/10/14 T:598.21, T:599.8. 30 Brian Parker, 3/10/14 T:600.15. 31
Brian Parker, 3/10/14 T:585.45, T:586.28. 32 Parker MFI-3, 3/10/14, pp 3-4.
1322
40. In his examination on 3 October 2014 - that is, only about five weeks
after this explosive conversation - Mr Parker was asked whether he
had ever told others that he wanted to bash up Mr Barrios, and whether
he had ever said that he had to stop himself from bashing Mr Barrios
otherwise he would end up doing a stint in hospital. His answer to
each of these questions was ‘no’.33
41. It is inconceivable that, when he gave this evidence, only a handful of
weeks after having spoken in so violent a way about his feelings
towards Mr Barrios, Mr Parker would not have had a recollection of
having done so. His sworn denials were not true, and he knew that to
be so when he gave the evidence. Mr Parker submitted that there was
insufficient evidence to conclude that he had engaged in deliberate
falsehoods.34 The submission relied on Mr Parker’s own evidence.35
That submission must be rejected.
42. If the position is otherwise, Mr Parker is an individual who is so
accustomed to making statements about bashing up fellow officials of
the CFMEU, and considers conversations of that kind to be so
forgettable, that behaviour of this kind is of no moment at all.
43. Whichever the position, the conduct is not that of a person who is
suitable to hold office as Secretary of a Divisional State Branch of a
registered organisation.
33 Brian Parker, 3/10/2014, T:578.32-38. 34 Submissions on behalf of Brian Parker, 21/11/14, para 37. 35
Brian Parker, 3/10/14, T:579.22-26.
1323
44. This was not to be the only occasion upon which Mr Parker would
speak ill of Mr Barrios.
45. Following the report that Mr Barrios made to the police of the call he
had received from Mr Alex, the matter came to the attention of this
Commission and Mr Barrios was summoned to give evidence. He did
not volunteer. He did not provide any statement. He was compelled to
attend and was obliged to provide truthful answers to questions asked
of him. He gave his evidence on 1 September 2014.
46. Notwithstanding all of these matters, on 7 September 2014 Mr Parker
spoke with his daughter on the telephone on Father’s Day. In the
course of that conversation, in reference to Mr Barrios, he made the
following comments:
‘what a dog’
‘he’s a fucking dog’
‘he’s a fuckwit’
‘he makes out like he’s a great fucking trade unionist’
‘that fucking imbecile Mario is so gullible’
‘he is so fucking dumb’
‘the whole of the fucking team, you know, the whole of his union hate him now, think he’s a fucking dog’.36
47. It was totally inappropriate to unleash this tirade of abuse about a man
who had received a disturbing call from Mr Alex and reported it, who
had been compelled to attend the Commission, who had honoured his
oath to speak the truth, and who had raised entirely legitimate
36 Parker MFI-4, 3/10/14.
1324
questions in relation to Capital and Mr Alex (being questions
consistent with the CFMEU’s publicly stated position in relation to
labour hire and phoenix operators).
48. It is scandalous that a Secretary of a Divisional Branch of the CFMEU
would hold these views about Mr Barrios, let alone express them.
Gross misconduct by Mr Parker
49. Clause 8 of the NSW Branch published Code of Conduct for Officers
provides that no officer engaged by the Union shall converse in an
abusive or derogatory manner towards any person.37 Clause 9 provides
that officers shall not make statements that impugn the character and
integrity of fellow officers.
50. Clause 51(b) of the Rules for the Construction and General Division of
the CFMEU provide that any officer of a divisional Branch may be
removed from office by a two thirds majority of the divisional Branch
management committee where the officer has been charged and found
guilty of ‘gross misbehaviour’.
51. The provision of the Rules recognises, unsurprisingly, that conduct
capable of being characterised as gross misbehaviour is conduct which
falls below the standards of professionalism expected of a union
officer.
52. By speaking about Mr Barrios in the manner described earlier in these
submissions, Mr Parker may have engaged in ‘gross misconduct’ and
37 CFMEU MFI-3, 24/10/14.
1325
may have also breached clauses 8 and 9 of the NSW Branch Code of
Conduct.
53. It is recommended that this Interim Report be referred to the Divisional
Branch Management Committee of the New South Wales branch of the
Construction and General Division of the CFMEU in order that
consideration may be given to whether Mr Parker has conversed in an
abusive or derogatory manner towards any person, has made
statements which impugn the character and integrity of fellow officials,
has engaged in gross misbehaviour or has grossly neglected his duty,
and whether he should be removed from office.
54. Counsel for Mr Parker said that to characterise the conversations as a
breach of a code of conduct went beyond the Terms of Reference.38
Counsel for Mr Parker were making two points. The first was that
findings should not be framed in terms suggesting that there had
actually been breaches. The recommendation does not do this. The
second point was that the Royal Commission was not able to put itself
in the position of the Divisional Branch Management Committee. The
recommendation does not seek to do that.
55. Counsel for Mr Parker also submitted that while the conversations
were about Mr Barrios, they were not directed at Mr Barrios.39 The
CFMEU made a similar submission.40 This point is no answer in
relation to clause 9. It may arguably be an answer in relation to clause
38 Submissions on behalf of Brian Parker, 21/11/14, paras 3, 4, 35. 39 Submissions on behalf of Brian Parker, 21/11/14, para 36. 40
CFMEU submissions, 14/11/14, Pt 8.5 para 5.
1326
8. That is a controversy best left to the Divisional Branch Management
Committee.
1327
1328
CHAPTER 8.6
CFMEU NSW BRANCH DESTRUCTION OF DOCUMENTS
Subject Paragraph
A - INTRODUCTION 1
B - DELETION OF EMAILS IN JUNE 2014 7
The Notices to Produce of 30 May 2014 7
CFMEU’s incomplete response to the Notices 14
Correspondence on the CFMEU’s incomplete response 18
The CFMEU email server 24
Instructions to delete emails 26
Failure to store emails elsewhere 33
The deletion process 56
Some general observations 58
Offences under s 6K of the Royal Commissions Act 1902 (Cth) 63
C - THE INSTRUCTION GIVEN TO MR HOLMES IN FEBRUARY 2013 77
The context 77
1329
Subject Paragraph
The investigation by Mr Slevin and call for Branch files 78
Instruction from Ms Charlson to Mr Holmes 83
Mr Holmes’s response to Ms Charlson’s instruction 91
Ms Charlson’s credibility 100
Events of 10 March 2014 101
Ms Charlson’s version of the events of 10 March 2014 112
Mr Holmes’s document of 11 March 2014 132
The lack of response to the 11 March 2014 document 140
The 2 April 2014 conversation 153
The 2 April 2014 email and the related conversation 161
Incomplete records observed by Mr Slevin and others 167
Returning to the competing evidence as to the February 2014 instruction 171
Mr Holmes 172
Ms Charlson 174
Ms McWhinney 176
The submissions of the CFMEU and Ms Charlson 191
Conclusions 208
1330
A - INTRODUCTION
1. This chapter deals with the destruction of documents by officers and
employees of the NSW Branch of the Construction and General
Division of the CFMEU (Branch). The events took place either
during or shortly prior to the commencement of the Royal
Commission.
2. Two case studies are considered. The first concerns the destruction of
almost all of the emails of the officers and employees of the Branch in
June 2014. That destruction took place during the life of the
Commission. It took place at a time when the CFMEU had received,
and was likely to continue receiving, Notices to Produce from the
Commission calling for the production of emails. The second concerns
the creation of an incomplete copy of the Branch’s wage claim files in
February 2014 for the purposes of passing on that incomplete copy to
Mr Slevin (a barrister retained by the National Office of the CFMEU to
conduct an investigation into certain matters relating to the Branch).
3. In substance the submissions of counsel assisting should be accepted.
The submissions on behalf of the CFMEU, Ms Mallia, Ms Wray and
Ms McWhinney, as well as those of Ms Charlson, who was separately
represented from a fairly late point in proceedings, will be dealt with at
appropriate places.
4. The submissions of counsel assisting were to the following effect.
5. So far as the first case study is concerned, a process was undertaken by
officers and employees of the Branch in the period from 23 June 2014
1331
to at least 25 June 2014 which resulted in the destruction of almost
every electronic email held by the Branch at that time, including emails
dating back to at least the start of 2013. Counsel assisting, possibly
with excessive charity, submitted that the evidence does not support a
finding that the documents were deliberately destroyed in order to
avoid their production to the Commission, or recklessly destroyed.
The submission is accepted. But the conduct of Ms Kylie Wray, Ms
Rita Mallia and Ms Leah Charlson, by their respective acts and
omissions in relation to this document destruction process, was
extremely careless. If it had been characterised as reckless, they may
have committed offences under s 6K of the Royal Commissions Act
1902 (Cth). The line between extreme carelessness and recklessness is
difficult to draw, and reasonable minds will differ as to whether the
conduct of these individuals fell on one side of the line or the other.
6. So far as the second case study is concerned, Mr Slevin asked for
certain files. In February 2014, Ms Charlson gave Mr David Holmes
an instruction to remove documents from the Branch’s wage claim
files for Active Labour and Elite Scaffolding. The instruction was to
remove, and not copy for Mr Slevin, documents that Mr Holmes
considered to be incriminating or unpalatable. Between 100 and 150
documents were removed from the wage claim files by Mr Holmes.
He cannot recall the content of any of these documents. Neither Ms
Charlson nor any other person from the CFMEU (other than Mr
Holmes) has been prepared to admit these matters. No-one will say
what has become of the documents that were removed from the files.
Therefore, it is not possible to know what has become of the
documents removed. They may not have been incriminating, but it is
now impossible to say whether any of them were. In consequence, it is
1332
not possible to be confident that all of the documents that were held by
the Branch in mid February 2014 that bear upon the nature and extent
of the relationship between, on the one hand, the CFMEU and its
officers with, on the other hand, Active Labour, Elite Scaffolding, Mr
Alex and his associates more generally have been produced to this
Commission.
B - DELETION OF EMAILS IN JUNE 2014
The Notices to Produce of 30 May 2014
7. On 30 May 2014, three Notices to Produce were issued to the Proper
Officer of the CFMEU. Each required documents to be produced to
the Solicitor Assisting the Commission at or before 10.00am on 6 June
2014.
8. The first Notice to Produce, numbered 98, sought various ‘Documents’
recording, referring or relating to the CFMEU’s investigations into
various allegations that had been made in respect of corrupt conduct by
officers of the Branch.1
9. The second Notice to Produce, numbered 103, sought ‘Documents’ of
various kinds in relation to the fighting funds of the CFMEU.2
10. The third Notice to Produce, numbered 104, required the production of
various categories of ‘Documents’ concerning the relationship between
the CFMEU and companies associated with Mr Alex, including labour
1 Wray MFI-1, 2/9/14, p 1. 2 Wray MFI-1, 2/9/14, p 8.
1333
hire companies called ‘Active’ and scaffolding companies called
‘Elite’.3
11. The term ‘Documents’ was defined in each Notice to Produce to
include anything from which images or writings can be reproduced
with or without the aid of anything else. Thus it included electronic
versions of emails.
12. Each Notice to Produce also contained a specific provision dealing
with the production of electronic documents. It provided that
The Commissioner has published Practice Direction 1 dealing with specific and important matters concerning the production of electronic documents. If you have electronic documents to produce, you should read Practise Direction 1 carefully. A copy of the practice direction is available at the Commission’s website…or if you have no internet access, by contacting office of the Commission on 1800 221 245.
13. In these circumstances, to the extent the CFMEU held email records in
electronic form falling within the description of the documents to be
produced in answer to the Notices to Produce, they were to be
produced in accordance with the Practice Direction 1 regime for the
production of electronic documents.
CFMEU’s incomplete response to the Notices
14. The General Manager of the Branch is Ms Kylie Wray.4 Part of her
role as at May and June 2014 was to ensure compliance by the Branch
with Notices to Produce issued by the Commission.5
3 Wray MFI-1, 2/9/14, p 14. 4 Kylie Wray, 2/9/14, T:36.30-33.
1334
15. Ms Wray knew, at the time the Notices to Produce were served on the
Branch, that they required the production of electronic documents.6
16. The CFMEU gathered and produced various documents in answer to
the three Notices to Produce.
17. Those documents were then received and assessed by staff at the
Commission. Through that process it was observed that the CFMEU
did not appear to have complied with Practice Direction 1. It required
all electronic documents, such as emails, to be produced in electronic
form. This was an important requirement given that not all emails are
printed out and retained in hard copy form.
Correspondence on the CFMEU’s incomplete response
18. In consequence, on 25 June 2014, the Solicitor Assisting the
Commission wrote to Slater & Gordon, the solicitors for the CFMEU,
and raised a concern about the matter. The letter indicated that the
Commission required production of all electronic documents in their
native form.7
19. On 30 June 2014, Slater & Gordon responded.8 The response was
relatively lengthy and contained 17 numbered paragraphs. The whole
of the first page of the letter and a good deal of the second page of the
letter contained observations as to the time within which the CFMEU
5 Kylie Wray, 2/9/14, T:38.42-44. 6 Kylie Wray, 2/9/14, T:40.17-19, 42.10-12. 7
Wray MFI-1, 2/9/14, p 21. 8 Wray MFI-1, 2/9/14, pp 23-24.
1335
had to respond to the Notices to Produce and the various logistical
issues associated with the production of electronic documents.
20. In amongst the numerous matters raised, and in paragraph 12 of the
letter, the following statement was made:
Further, on Monday 23 June 2014 the Branch became aware during the course of the afternoon that external emails were not being received. Upon investigation, it was found that the email server had effectively crashed as a result of a “disc space error”. It was subsequently found that the email server had not been backing up for a period of up to 2 years. The problem affected certain personnel’s inboxes to a lesser or greater degree. In order to fix the problem the only way to address the issue was to free up disc space with a number of emails being deleted. The branch has no way of assessing the data that has been lost as a result of this incident.
21. No previous indication had been given by the CFMEU to the
Commission that the CFMEU had engaged in a deliberate process of
destroying emails. It was remarkable, to say the least, that this matter
would be addressed, almost in passing, in paragraph 12 of a letter
which, itself, had only been sent because of a query raised by staff at
the Commission about the inadequate production by the CFMEU. The
matter was treated by the CFMEU and its lawyers as if it was of only
passing interest, affecting only ‘a number’, ie a small number, of
emails, and requiring no further consideration. The number was
actually very large. The matter was actually extremely important. A
letter of that kind sent in commercial litigation would have aroused the
deepest suspicions.9
9 See Registrar of Equity Division, Supreme Court of New South Wales v McPherson [1980] 1 NSWLR 688 .
1336
22. In due course, the Solicitor Assisting the Royal Commission required
the CFMEU to serve a comprehensive affidavit explaining the facts
and circumstances relating to the deletion of emails.10
23. On 27 August 2014, Kylie Wray affirmed an affidavit. It gave an
explanation of sorts as to what had occurred in relation to the
destruction of emails. That explanation and various other items of
evidence in relation to the matter are canvassed below.
The CFMEU email server
24. According to Ms Wray’s evidence, on the afternoon of Monday 23
June 2014, she became aware that the Branch was not receiving any
external emails. It appeared to her that this had been the case during
the day, but nobody had noticed it because employees of the Branch
were still able to send emails, and were still able to receive internal
emails. The problem, therefore, was of a limited kind. It only
prevented the receipt of emails sent from an external source.11
25. An investigation into the problem revealed that there was insufficient
space on the server to enable external emails to be received. The
system had not ‘effectively crashed’, as had been reported by Slater &
Gordon on 30 June 2014, and repeated by Ms Wray in paragraph 7 of
her affidavit. Rather, the system was ‘full’ to such an extent that,
whilst the email system still functioned and emails could be sent and
internal emails received, external emails could not be received.
10 Wray MFI-1, 2/9/14, p 25. 11 Kylie Wray, affidavit, 2/9/14, para 7 (Wray MFI-1, 2/9/14, p 28).
1337
Instructions to delete emails
26. At some stage during the course of 23 June 2014, after having become
aware of the storage problem described above, Ms Wray started telling
some of the employees at the NSW Branch to begin deleting their
emails.12 That was less than four weeks after the three Notices to
Produce had been issued.
27. The following day, 24 June 2014, Ms Wray sent an email to all staff at
the Branch at 6.33pm.13
28. The recipients included Mr Parker and Mr Greenfield. Each of them
was under direct consideration by the Commission in relation to their
relationship with Mr Alex and companies and individuals associated
with him. In fact, these were the very matters being investigated
through Notices to Produce numbered 98 and 104 referred to above.
That fact was apparent from the terms of those Notices.
29. A number of persons with legal qualifications who were working for
the NSW Branch were also sent Ms Wray’s email. They included Ms
Charlson (the Senior Legal Officer of the Branch), Ms Raju (solicitor
in the legal department of the Branch) and Ms Mallia (the Branch
President).
30. The subject line of Ms Wray’s email read ‘URGENT: email cleanout’.
31. The text of the email was as follows:14
12 Kylie Wray, 2/9/14, T:48.23, 49.25-27, 50.6-8. 13 Kylie Wray, affidavit, 2/9/14, annexure KW1 (Wray MFI-1, 2/9/14, p 31).
1338
Hi everyone
I think Peter has been to see many of you today to request everyone cleans out their mailboxes. We currently are not receiving any emails at all from outside the CFMEU. This is due to the fact that the mailbox store is full.
The only way we will be able to receive external email again is if everyone puts in an effort to clean out their mail.
Some tips:
Sort them by size and delete the big ones first
Putting your email into folders in your inbox still counts them in the size total and is not going to help
Clean out your sent items
Clean out the deleted items folder.
As we are days away from the royal commission kicking off and there is a LOT going on, we need everyone to make this a priority please. If you need assistance with this please speak to myself or Peter.
32. The Commission had in fact already kicked off. The Letters Patent
was issued on 13 March 2014. The opening hearing, attended by
senior counsel for the CFMEU, took place on 9 April 2014. Some
days of evidence in public and some days of evidence in private
(including evidence from CFMEU witnesses) had been taken. On 1
May 2014, the CFMEU made an application for authorisation to appear
at the hearings. The application stated:
Part 5 - Assistance to the Commission
(a) Will the person appearing or to be represented be in a better position to assist the Commission if authorisation to appear is granted? If so, how?
14 Kylie Wray, affidavit, 2/9/14, annexure KW1 (Wray MFI-1, 2/9/14, p 31).
1339
…If authorisation to appear is granted, the Commission will be assisted by having one point of contact for all Divisions and Branches of the CFMEU.
In addition, if authorisation to appear is granted, access to the Court Book will permit the CFMEU to more efficiently respond to the proceeding of the Commission and documentation under its consideration.
(b) Please specify precisely the nature and extent of any assistance that will be provided to the Commission if authorisation is granted.
The Commission will have easier access to the CFMEU, its Divisions and Branches through a single legal team. The CFMEU has already assisted the Commission in answering to date the Notice to Produce issued on 31 March 2014 (“Notice”) by coordinating the production of documents and communications with the Commission through its legal representatives.
Failure to store emails elsewhere
33. Ms Mallia read Ms Wray’s email almost immediately after it was sent
on 24 June 2014. On reading it she understood that the request from
Ms Wray would involve the deletion of a very large number of emails
off computers operated by officers and employees of the branch.15
34. Within minutes, Ms Mallia had sent an email back to Ms Wray in the
following terms:16
Any way we can save them externally I’d happily delete everything if there was a way to save them somewhere
15 Rita Mallia, 25/9/14, T:414.24-27. 16 Mallia MFI-1, 25/9/14, p 16.
1340
35. Ms Mallia accepted that, at the time she sent this email, she was
concerned to ensure that there was a complete set of emails that had
been retained in pristine form on some external hard drive.17
36. Ms Charlson was also acutely aware of the undesirability of deleting
emails of any importance. She took steps to have many of her own
emails saved elsewhere on the system. She did that in conjunction
with information technology staff at the CFMEU.18
37. Ms Charlson, a lawyer carrying out ongoing matters for the CFMEU,
said she did that because she wanted to ensure that her documents in
respect of ongoing matters were not deleted. The idea of deleting
documents relating to matters in fact worried her. She could not give
any sensible explanation as to why she took no step to ensure that the
other lawyers in her team did the same.19
38. The immediate responses from Ms Mallia and Ms Charlson made it
clear that they were both acutely aware that, as at 24 June 2014, it was
undesirable for there to be a wholesale deletion of all emails held by
CFMEU staff and officials. It is also clear that both immediately
appreciated that there would be ways and means of retaining the
existing records while at the same time clearing space on the server.
They had communications about that very fact. This reveals that the
Slater & Gordon letter of 30 June 2014 contained a further material
inaccuracy for in it the CFMEU asserted that the deletion of the emails
was ‘the only way’ to deal with the problem.
17 Rita Mallia, 25/9/14, T:415.7-10. 18 Leah Charlson, 24/10/14, T:1095.9-11, 26-29, 45-47. 19
Leah Charlson, 24/10/14, T:1099.25-1100.12.
1341
39. The awareness of Ms Mallia and Ms Charlson on 24 June 2014 that the
emails could be stored elsewhere, rather than being deleted, comes as
no surprise. It is common knowledge that electronic data can be
extracted from one source and saved on to an external storage device.
40. It is inconceivable that Ms Wray did not know and think about this at
the time. Not only was she the General Manager of a Divisional
Branch of the CFMEU (a substantial administrative role) but also, on
her own evidence, she was given responsibility of overseeing the IT
department of the Branch and playing a role in providing back-up IT
services to assist the Branch’s IT officer when required.20
41. Ms Wray said that when she sent her email on the evening of 24 June
2014 she did not give any consideration to using such an external
storage device.21
42. However, even if that were true (which is difficult to accept), she
certainly had reason to (and did) consider such an option following
receipt of Ms Mallia’s email to her of the same date. Ms Mallia raised,
expressly, the prospect of saving the emails externally.
43. Ms Wray gave evidence that her response to Ms Mallia’s email was to
ask Mr Peter Thomas from the IT department, who was referred to in
the 24 June 2014 email, to give Ms Mallia a hand saving some
material. She did nothing else.22
20 Kylie Wray, affidavit, 2/9/14, para 2 (Wray MFI-1, 2/9/14, p2). 21 Kylie Wray, 2/9/14, T:57.24-26. 22
Kylie Wray, 2/9/14, T:62.2-4.
1342
44. The excuse Ms Wray gave for not taking any further action to ensure
that the emails of all of the other CFMEU staff and officials were not
saved in the same way was that she took Ms Mallia’s concern ‘to be
solely regarding her own mailbox’.23
45. That evidence is not credible. Ms Mallia was the Branch President.
She raised through her email a matter of general application in respect
of all electronic documents the subject of Ms Wray’s email of three
minutes before. If she had not thought of it before, Ms Mallia’s email
could only have raised in Ms Wray’s mind the possibility of dealing
with all emails in this way, particularly in circumstances where the
Commission was in existence. The fact Ms Wray was aware of the
existence of the Commission is apparent from the text of her own
email of 24 June 2014.
46. Certainly Ms Mallia appreciated that her email was of general
application in respect of all emails.24 However, apart from sending her
query email of 24 June 2014 to Ms Wray, she took no further action.
She did not contact Ms Wray to make sure that her suggestion was
taken up. She did not follow up on it at all, and, to use her words, she
‘didn’t take the issue any further’.25 She accepted that she could have
given a direction to Ms Wray and all of the other staff to stop the
deletion process and ensure that no emails were destroyed. She did not
23 Kylie Wray, 2/9/14, T:62.16-17. 24 Rita Mallia, 25/9/14, T:415.7-10. 25
Rita Mallia, 25/9/14, T:415.12-27.
1343
do this, even though she knew the Commission was underway.26 She
provided no meaningful explanation for her inaction.
47. Ms Charlson was similarly inactive. This is so even though she was
the Senior Legal Officer in the NSW Branch and knew that, at the
time, the Commission was on foot.27
48. Ms Charlson’s evidence was that she was aware, as at 24 June 2014,
that:
(a) the Commission was on foot;28
(b) from time to time it was likely that the CFMEU would be
required to produce emails to the Commission;29
(c) there were emails that were generated that were not printed out
by CFMEU staff and thus unavailable in hard copy form;30
(d) a Notice to Produce was a document that required the CFMEU to
produce documents to the Commission;31 and
(e) officers of the CFMEU were under consideration by the
Commission.32
26 Rita Mallia, 25/9/14, T:416.5-17. 27 Leah Charlson, 24/10/14, T:1093.26-28. 28
Leah Charlson, 24/10/14, T:1093.26-28. 29 Leah Charlson, 24/10/14, T:1093.30-33. 30
Leah Charlson, 24/10/14, T:1093.35-39. 31 Leah Charlson, 24/10/14, T:1098.27-28.
1344
49. Notwithstanding that body of knowledge, Ms Charlson took no step to
call a halt to the email deletion process that Ms Wray had initiated,
other than to make arrangements for some of her own documents to be
retained for other purposes.
50. At first Ms Charlson sought to explain her inaction on the basis that
she thought, at the time, that the documents that were likely to be
required by the Commission had already been produced because there
had been a number of Notices to Produce served prior to 24 June
2014.33
51. Counsel assisting submitted that that evidence is not credible. Ms
Charlson is an experienced solicitor. She revealed herself to be a
witness of considerable intelligence. She accepted that she had been
aware, throughout the life of the Commission, that it would be likely
that the CFMEU would be required to produce documents from time to
time.34 There would have been no rational basis for her to believe, as
of 24 June 2014, that the CFMEU would not be called upon to produce
any further documents.
52. It was put to Ms Charlson that she was not giving truthful evidence on
the subject. Ms Charlson then gave evidence designed to create the
impression that she had not, in fact, turned her mind to the question of
whether there would be further notices issued by the Commissioner.35
32 Leah Charlson, 24/10/14, T:1098.30-33. 33 Leah Charlson, 24/10/14, T:1097.23-46. 34
Leah Charlson, 24/10/14, T:1093.30-33. 35 Leah Charlson, 24/10/14, T:1098.35-43.
1345
She said she was not involved in the Royal Commission process.36 But
so senior a lawyer must have appreciated its importance. She must
have appreciated the probability that as documents were produced new
leads might emerge, to be followed by further Notices to Produce. Ms
Charlson tended to seek to debate her way out of the particular
proposition that confronted her at any particular moment, even if that
involved some shift away from the position she had previously adopted
in order to deal with an earlier problem. Unfortunately, it is not
possible to accept her evidence that all the documents that were likely
to be required had already been produced. But even if her evidence
were accepted, her behaviour would reflect a lack of proper care and
concern for the processes of the Commission.
53. Ms Charlson said that she ‘would have thought that the only emails
that people were deleting would be trivial emails, not serious, not
important emails’.37 She also submitted that Ms Wray’s email was
ambiguous.38 It was not ambiguous. And it did not draw that
distinction. Instead it drew a distinction between ‘big ones’ and others;
the former were to be deleted first.
54. Ms Charlson also submitted that if she were to have stopped the
document destruction process directed by Ms Wray, she would have
had ‘to go outside the chain of command’.39 Unfortunately, it is the
unhappy fate of the in-house solicitor to suffer the wrath of those
higher up the chain of command by intervening to point out some
36 Leah Charlson, 24/10.14, T:1098.8-17. 37 Leah Charlson, 24/10/14, T:1094.33-35. 38
Ms Leah Charlson’s submissions, 19/11/14, para 16. 39 Ms Leah Charlson’s submissions, 19/11/14, para 25.
1346
tiresome legality. That is the whole point of in-house solicitors. And
she was the head in-house solicitor.
55. The position is that neither Ms Mallia, nor Ms Charlson nor Ms Wray
took any action to prevent the destruction of emails (other than some of
Ms Charlson’s and Ms Mallia’s emails).
The deletion process
56. Ms Wray’s evidence was that the email deletion process commenced
on 23 June 2014, continued throughout 24 June 2014 up to the point in
time in which she sent her email on the evening of that day, and then
continued again on 25 June 2014.40
57. A team of no less than nine people in the branch were charged with
responsibility for going through the email accounts of a large number
of organisers and officials, including Mr Parker and Mr Greenfield,
and deleting all of the emails in those accounts.41
Some general observations
58. Officers and employees of the Branch engaged in a deliberate
document destruction process in the period from 23 June 2014 to at
least 25 June 2014.
59. The volume of emails deleted must have been vast. The quantity of
emails is apparent from the fact that their existence had caused the
40 Kylie Wray, 2/9/14, T:48-51. 41 Kylie Wray, 2/9/14, T:49.9-19.
1347
server to become full on 23 June 2014. The emails in question dated
back to at least the beginning of 2013, because that was the last
occasion upon which there had been a request made for a clean out of
mail boxes by CFMEU staff and officials.42
60. On this point, it is to be remembered that 2013 is a critical period of
time under consideration by this Commission in terms of the
relationship between Mr Parker, Mr Greenfield, Mr Alex and
individuals and companies associated with Mr Alex. That was well
known by the officers of the Branch. The fact had been highly
publicised. It had been the subject of two internal CFMEU inquiries.
61. The fact that emails, including emails from the email accounts of Mr
Parker and Mr Greenfield, were deleted in this wholesale and
indiscriminate fashion, during the course of the Commission,
particularly in light of the matters that were actually under
investigation at the time, is deeply worrying.
62. No official within the CFMEU has appreciated the serious nature of
what has occurred. It was treated as a relative triviality in
correspondence from CFMEU’s lawyers to the Commission on 30 June
2014. No proper explanation for what had occurred was provided.
The Commission had to insist upon an affidavit being provided. And
even then, the subsequent public examination of the deponent of that
affidavit, Ms Wray, made it clear that the affidavit was less than
comprehensive, and had not dealt with a number of matters, which
only raised cause for greater concern in relation to what had occurred.
42 Kylie Wray, 2/9/14, T:46.4-38.
1348
Offences under s 6K of the Royal Commissions Act 1902 (Cth)
63. Section 6K of the Royal Commissions Act 1902 (Cth) provides as
follows:
(1) A person commits an offence if:
(a) the person acts or omits to act; and
(b) the act or omission results in a document or other thing being:
(i) …destroyed…; and
(c) the person knows, or is reckless to whether, the document or thing is one that:
(i) is or may be required in evidence before a Commission; or
(ii) the person has been, or is likely to be, required to produce pursuant to a summons, requirement or notice under section 2.
(2) An offence under sub-section (1) is an indictable offence and, subject to this section is punishable on conviction by imprisonment for a period not exceeding 2 years or by a fine not exceeding $10,000.
(3) Notwithstanding that an offence under sub-section (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
(4) Where, in accordance with sub-section (3), a court of summary jurisdiction convicts a person of an offence of sub-section (1), the penalty that the court may impose is a fine, not exceeding $2,000 or imprisonment for a period not exceeding 12 months.
64. The sole submission of the CFMEU was that no finding should be
made on the email destruction issue because of the work which Mr
Solomon is undertaking. He is endeavouring to recover the deleted
emails.43 Ms Charlson adopts those submissions.44 However, under s
43 CFMEU submissions, 14/11/14, Pt 8.6, para 5. 44 Ms Leah Charlson’s submissions, 19/11/14, para 6(b).
1349
6K, the question is whether a document was concealed, mutilated,
destroyed or rendered indecipherable. The deletion of the emails from
the inboxes fell within those words. The possibility that Mr Solomon
may be able to recover the emails does not alter the fact of what
happened from 23 June 2014. Ms Charlson then took a point which
she said should not be seen as ‘unduly technical’. Even if it is, it is
none the worse for that. Section 6K operates in the realm of criminal
law. In that field, technicality is the bulwark of liberty. Ms Charlson
submitted that, whatever her mental state, it had not been established
that the destroyed documents might be required in evidence or were
likely to be produced under a Notice to Produce. That is because it is
not known what documents, or even classes of documents were
destroyed.45
65. The submission must be upheld. This conclusion reveals how narrow s
6K is. Section 6K is concerned with documents which may have been
destroyed, concealed, mutilated or rendered illegible. Hence, it is
concerned with documents which by definition may be incapable of
specific identification. That definition tends to exclude many instances
of circumstantial reasoning towards contravention of s 6K. The
definition makes it impossible to take a document and say: ‘Just by
looking at the document, one can see that the accused must have
known that the document might be required in evidence or under a
summons.’ That is because the document is non-existent or
unreadable. Proof of contravention in those circumstances would
depend on admissions or on secondary evidence from other witnesses
45 Ms Leah Charlson’s submissions, 19/11/14, paras 7-12.
1350
of the contents of the document. But these consequences cannot affect
the construction of s 6K as it stands.
66. Counsel for Ms Charlson then submitted that if that conclusion were
reached, it was not necessary to make any finding about Ms Charlson’s
mental state.46 It was submitted that it became ‘simply irrelevant’.
That submission must be rejected. For reasons explained below, the
document destruction process is within the Terms of Reference, and so
is the mental state of those who devised it or failed to interfere with it.
67. Counsel assisting put the following submissions. Ms Wray took action
that resulted in emails being destroyed. That action included deleting
emails herself, instructing other staff within the Branch to delete emails
on 23 June 2014, and giving a written instruction to the same effect to
all officials and staff at the Branch by her email of 24 June 2014.
68. Ms Mallia and Ms Charlson each failed to take action. Those
omissions resulted in emails being destroyed. Ms Mallia was the
Branch President. She failed to take action to ensure that the emails
were maintained and stored on an external device. The action she took
in this regard was insufficient. She sent an email to Ms Wray
suggesting that course. But she then failed to take any further action to
ensure emails were preserved in this way. Ms Charlson,
notwithstanding her position as the senior lawyer in the Branch, failed
to give an instruction to all staff and officials to cease destroying their
emails following receipt by her of Ms Wray’s email of 24 June 2014.
46 M Condon SC, 28/11/14, T:35.15-22, 36.37-40.
1351
69. At the very least, at the time of acting or omitting to act, each of these
individuals were very careless (and possibly reckless) as to whether
one or more of the electronic documents that were deleted were ones
that were to be produced in answer to one or more of the three Notices
to Produce described above, or would be likely to be required to be
produced pursuant to subsequent Notices to Produce.
70. When a complaint was made on 25 June 2014 about the CFMEU’s
failure to produce those documents in answer to the Notices, the
various explanations proffered by the CFMEU as to its failure to
produce included the fact that the electronic versions of emails had
been destroyed on and after 23 June 2014. In that way the CFMEU
admitted that documents that had been required to be produced
pursuant to those Notices to Produce had been destroyed. However, it
is an admission of no weight, because the destruction of documents
prevented it knowing what the documents were.
71. What documents were likely to be produced in answer to subsequent
Notices to Produce? As at 24 June 2014, the Commission was in its
relative infancy. Officers of the CFMEU were the subject of
investigation by the Commission. Some Notices to Produce had
already been served on the CFMEU. It would have been obvious to
any person standing in the position of any of Ms Wray, Ms Mallia and
Ms Charlson that it was likely that further Notices to Produce would be
served, and that such Notices would be likely to call for the production
of emails. It is true to say that they could not predict, as at 24 June
2014, which particular emails would be the subject of subsequent
Notices. However, there can be no serious doubt that some emails
1352
would be called for by the Commission under future Notices. Their
behaviour in the face of this reality was at least very careless.
72. In order for them to have committed an offence under s 6K of the
Royal Commissions Act 1902 (Cth) through the acts and omissions
described above, it would be necessary to conclude that their actions
were more than very careless. Recklessness or deliberate wrongdoing
would be required.
73. The evidence raises nagging suspicions, but it does not support a
finding of deliberate wrongdoing. As counsel assisting submitted,
there is no evidence, and no basis for finding, that Ms Mallia, Ms Wray
and Ms Charlson knew, or were reckless as to whether, any particular
email within the body of emails that was destroyed was, or was likely
to be, required to be produced pursuant to a Notice to Produce.
74. As counsel assisting also submitted, the evidence does not support a
finding that any of these individuals knew that a particular damaging
document existed, and that by some deliberate or reckless act or
omission on their part, they arranged for that document to be destroyed
in order to avoid it being produced to the Commission.
75. Whether their conduct is properly characterised as very careless, or
instead reckless, is a difficult question to answer. Reasonable minds
will differ on the subject. These individuals behaved with a substantial
lack of care and concern for the processes of the Commission. But
they were not reckless. That submission of counsel assisting should be
accepted. When the consequences of a finding of recklessness are
1353
taken into account, it is not possible on the present evidence to
conclude positively that the conduct is to be characterised as reckless.
76. Ms Charlson submitted that there should be no finding that she had
acted with a substantial lack of care either. She submitted that no
finding of that kind was within the Terms of Reference. She also
submitted that that finding was a serious one for a legal practitioner.47
The last point is correct. But given that the conduct of the CFMEU
prima facie falls within the Terms of Reference, the level of care and
concern for the processes of the Commission which the CFMEU
applied in responding to the Commission is within para (k) of the
Terms of Reference. The deliberate or reckless destruction of
documents which may be caught by compulsory processes of
production is a grave matter. Ms Charlson did not do that. But
carelessness and an omission to have proper consideration for the
possibility of compulsory processes of production (or worse,
consciousness of that possibility coupled with a failure to respond
accordingly) is also fairly grave. Conduct of that kind makes the
processes of a body like the Commission unworkable. The very
submission under consideration reveals a lack of consciousness of
these important points.
47 Ms Leah Charlson’s submissions, 19/11/14, paras 34-35.
1354
C - THE INSTRUCTION GIVEN TO MR HOLMES IN
FEBRUARY 2013
The context
77. The issue raised by the second case study is whether documents were
withheld from Mr Tony Slevin of counsel in mid to late February 2014.
At that time Mr Slevin had been instructed by officers of the National
Office of the CFMEU to conduct an investigation into various
complaints that had been made by Mr Andrew Quirk. Mr Quirk was
an organiser in the Branch. His complaints related to the conduct of
various other officers in that Branch, including Mr Parker and Ms
Mallia. The incident occurred in mid-February 2014. On 10 February
2014, the Prime Minister announced that the Commission would be
created. On 13 March 2014, the Letters Patent was issued.
The investigation by Mr Slevin and call for Branch files
78. As described in Chapter 8.4, in early 2014, Mr Slevin of counsel was
retained to undertake an investigation into the conduct of various
officials in the Branch. He had been instructed to do so by officers
from the National Office of the CFMEU based in Melbourne.
79. In October 2013, Mr Quirk had written to Mr Michael O’Connor, the
National Secretary of the CFMEU, raising a series of concerns.
Among them, there were three that relate to the Commission. One
concern was the way in which Mr Fitzpatrick had been treated by Mr
Parker and others following the receipt by Mr Fitzpatrick of a death
threat from Mr Greenfield in March 2013. Another was the lack of any
1355
proper investigation undertaken by the Branch officials in relation to
such matters. A third was the nature and extent of relationships
between Mr Parker, Mr Greenfield and Mr Alex (and individuals and
companies associated with him).48 There had been some media
attention to the last matter.
80. Mr O’Connor sent a letter dated 20 February 2014 to Mr Parker (the
Branch Secretary). Mr O’Connor referred to the fact that Mr Slevin
had been retained to investigate various matters, and requested the
Branch’s assistance in the process.49 To that end, he attached to the
letter a list setting out the files and documents that Mr Slevin had
requested.
81. The attached schedule identified a number of different categories of
files and other documents. Amongst other things, the schedule
included two sub-headings, one referring to a company called Elite
Scaffolding, and the other to a company called Active Labour. Both
companies were associated with Mr Alex. The matters Mr Slevin had
been asked to investigate included the way Mr Parker and others had
dealt with these companies.
82. The files and documents requested by Mr Slevin in the schedule
included ‘Any files…associated with any arrears in employee
entitlements owed by the employer operating as [Elite Scaffolding or
Active Labour] in March 2013.’50
48 Brian Fitzpatrick, witness statement, 15/7/14, tab 10, p 157. 49 Roberts MFI-1, 23/09/14, tab 7.1, p 42-1. 50
Roberts MFI-1, 23/09/04, tab 7.1, p 42-3.
1356
Instruction from Ms Charlson to Mr Holmes
83. A copy of the schedule of files and documents requested by Mr Slevin
found its way to Ms Charlson, the Senior Legal Officer in the
Branch.51 Ms Charlson was responsible for co-ordinating the process
by which documents were to be gathered and sent on in answer to Mr
Slevin’s request.52
84. Mr Holmes was a legal secretary administrative assistant who worked
for Ms Charlson and other lawyers in the Branch. His evidence as to
what happened next is as follows.
85. Mr Holmes said that Ms Charlson asked him to come into her office.
She then asked him if he was busy the next day and he said he was not.
Ms Charlson then said to him words to the following effect:53
I need you to do something tomorrow, which is to pull all of the files associated with these companies from the wage claim system and go through them and remove anything that is incriminating or unpalatable. You then need to make a copy of those files without those documents. Documents need to go to the National office and they need to go through me and Rita. It has to be done by the end of tomorrow.
86. As later described, within a month of receiving this instruction he
recorded the fact of it in a document. That document,54 dated 11
March 2014, is a powerful near contemporaneous indicator of the fact
that such an instruction was given.
51 Leah Charlson, 24/10/14, T:1086.7-11. 52 Keryn McWhinney, 2/10/14, T:520.12-14. 53
David Holmes, witness statement, 2/10/14, para 13. 54 David Holmes, witness statement, 2/10/14, attachment D.
1357
87. There is no controversy that an instruction of some sort was given to
Mr Holmes in mid February 2014 to separate out some documents
from the wage claim files.
88. The very fact that he was given an instruction to separate out
documents from the wage claim files is, of itself, revealing. As
described above, the request from Mr Slevin did not require or request
anyone from the Branch to undertake a review of the contents of the
Active and Elite wage claim files. The request called for the
production of ‘any files… associated with any arrears in employee
entitlements owned by the employer…’.
89. A wage claim file satisfied this criterion. Ms Charlson accepted this to
be so.55 She further accepted that she understood that Mr Slevin was
saying that if the Branch had a file like that, he wanted someone to pull
it off the shelf and give it to him.56 As a result, there was no need for
anyone to be riffling through wage claim files with a view to removing
any documents. The appropriate response to Mr Slevin’s query was to
take the file off the shelf and pass it on to him.
90. After giving Mr Holmes the instruction described above, Ms Charlson
then provided Mr Holmes with a list which had, amongst other things,
the name of Active Labour, and various other companies, written on it.
He no longer has a copy of that list.57
55 Leah Charlson, 24/10/14, T:1087.10-22. 56 Leah Charlson, 24/10/14, T:1087.27-31. 57
David Holmes, witness statement, 2/10/14, para 13.
1358
Mr Holmes’s response to Ms Charlson’s instruction
91. The following day, Mr Holmes said he went and saw Ms McWhinney,
a Senior Industrial Officer working at the Branch.58 Ms McWhinney
worked in the wage claims area.
92. Mr Holmes then asked Ms McWhinney to produce a list of all the
wage claim files that were tied to the list of employers that Ms
Charlson had given him. Ms McWhinney did so.59
93. Mr Holmes then retrieved the wage claim files from the shelves. He
went through and removed about 100 to 150 documents that he thought
might be considered incriminating or unpalatable. He then copied the
balance of the files. He said he worked on that task for the whole of
the day, starting from about 8.30am and finishing at about 5.30pm.60
94. Mr Holmes told this Commission that when he had finished the job of
removing documents from the wage claim files and copying what
remained, he took the copies of the filleted files and put them outside
Ms Charlson’s office on a desk. He put the original documents that he
had removed from the files in a separate pile. The following day he
identified these materials to Ms Charlson.61
95. At that time Mr Holmes did not give much more thought to the
incident. He treated it as a job that he had been asked to do, and which
58 Keryn McWhinney, 2/10/14, T:512.35-37. 59 David Holmes, witness statement, 2/10/14, para 14. 60
David Holmes, witness statement, 2/10/14, para 14. 61 David Holmes, witness statement, 2/10/14, paras 15-16.
1359
he had done. He did not regard it as a day that was particularly
different from any other.62
96. Mr Holmes was challenged about this during the course of cross
examination by the CFMEU’s counsel. It was suggested to him that if
he was being asked to remove evidence of a criminal offence from a
file that would have struck him as being something that was wrong
(and thus out of the ordinary). Mr Holmes gave a cogent response. He
said that he did not know why he was being asked to behave as he was.
He said that, for all he knew, the union may have wanted to look at the
documents he selected so that they could be dealt with in some
appropriate way. He was not aware that the documents were being
collated for the purposes of the Slevin inquiry.63 Therefore, he did not
consider that he was being asked to do anything wrong.
97. This is one of many occasions on which Mr Holmes demonstrated his
credit in the face of vigorous attack. He did not suggest anywhere in
his statement, or in his oral evidence, that he had any recollection as to
the contents of any of the documents. He did not suggest anywhere in
his statement, or in his oral evidence, that he could say with any degree
of certainty that the author of the documents he had removed was an
officer or an employee of the CFMEU. He did not seek to embellish
his evidence about any of these matters. He described what he could
actually recall of what he saw and did nothing more. He was not
engaged in a process of seeking to justify, ex post facto, his own
actions. He was, therefore, not faced with the temptation of
62 David Holmes, witness statement, 2/10/14, para 17. 63 David Holmes, 2/10/14, T:501.30-35.
1360
consciously or subconsciously reconstructing events in a manner that
would cast him in the best possible light.
98. Ms Charlson and Ms McWhinney each gave very different accounts
from Mr Holmes of what occurred in mid-February 2014, and who said
what to Mr Holmes in relation to the wage claim file exercise. In turn,
Ms Charlson’s and Ms McWhinney’s accounts are not the same.
99. For reasons that will be explained subsequently, the evidence of Mr
Holmes should be preferred to that of Ms Charlson and Ms
McWhinney. In short, Mr Holmes presented as a more credible
witness, and there were fewer difficulties associated with his evidence
and credit.
Ms Charlson’s credibility
100. As earlier indicated, Ms Charlson was highly intelligent and capable.
She was also quick-witted and eloquent. But she adopted a somewhat
de haut en bas tone towards the junior counsel assisting who conducted
her examination. Unfortunately, it is necessary to say that the virtues
referred to at the start of this paragraph also became testimonial vices,
for they tended to demonstrate a lack of credibility in dealing with
unpleasant circumstances. She was mercurial and unconvincing in
adapting her answers to whatever forensic necessity she perceived.
Events of 10 March 2014
101. Mr Holmes gave evidence that from 18 September 2013 up to 10
March 2014, he had been bullied by Ms Sherri Hayward, a solicitor in
1361
the Branch who worked for Ms Charlson.64 Ms Hayward and Ms
Charlson are more than mere work acquaintances. For example, they
have been out to dinner together on a number of occasions. Ms
Hayward has minded Ms Charlson’s house when the latter went on
holidays.65 Their relationship was certainly much closer than the
relationship either of them had with Mr Holmes.
102. Mr Holmes said that Ms Hayward’s behaviour towards him was such
that he had begun to experience an increased state of anxiety and
stress. This led him to submit a formal bullying complaint in writing
to Ms Charlson, Ms McWhinney and Ms Mallia on 10 March 2014.66
103. The letter ran to a little over 7 pages. It set out Mr Holmes’s
complaints in respect of Ms Hayward’s behaviour in some detail.
Indeed the letter included a table in which Mr Holmes not only
identified the various different categories of behaviour he had
experienced, but also gave examples of behaviour falling within each
of those categories.
104. In her evidence, Ms Charlson was reluctant to accept the proposition
that Mr Holmes’s complaint set out his concerns in some detail. She
avoided answering the question twice, as if wanting to leave room for
manoeuvre, before ultimately accepting that Mr Holmes had, in fact,
64 David Holmes, witness statement, 2/10/14, para 4. 65 Leah Charlson, 24/10/14, T:1068.23-1069.1. 66
David Holmes, witness statement, 2/10/14, para 5 and attachment A.
1362
detailed his complaints in that letter.67 Mr Holmes did not behave this
way when giving evidence.
105. Shortly after Mr Holmes provided his letter to Ms Charlson, he
observed Ms Charlson and Ms Hayward talking together in Ms
Charlson’s office with the door closed. The meeting lasted for about
30 minutes. He suspected, correctly, that the meeting was about his
bullying complaint that had just only been submitted.68
106. Later that day, an email alert came up on Mr Holmes’s computer
screen indicating that Ms Hayward had sent Ms Charlson an email. Mr
Holmes, like all the other staff in the legal team, had access to the
emails of everyone else in the team.69
107. Mr Holmes suspected that the email may have concerned his
complaint. He was curious to find out what it said. He read the email.
He noticed that it attached a list of issues that Ms Hayward had
prepared in respect of Mr Holmes’s work performance.
108. The email was entitled ‘List’ and commenced, without any preamble or
explanation, ‘I have attached my list of issues.’70
109. That email was sent by Ms Hayward to Ms Charlson at 12.36pm.
67 Leah Charlson, 24/10/14, T:1068.3-19. 68 David Holmes, witness statement, 2/10/14, para 6. 69
David Holmes, witness statement, 2/10/14, paras 6-7. 70 David Holmes, witness statement, 2/10/14, attachment B.
1363
110. Later that same day, Ms Hayward sent an email to a friend of hers in
which she indicated that Mr Holmes made a formal complaint of
bullying against her. She made the following statement:71
We have to go through a whole process now which is fucked and exactly what I need at the moment. Leah says I have nothing to worry about but its [sic] really screwing me up. (emphasis added)
111. Ms Charlson did not deal with this matter in her statement. She must
have appreciated it was not something which a person involved in an
investigation of Mr Hayward’s conduct should have said before it was
complete. It prejudged the matter.
Ms Charlson’s version of the events of 10 March 2014
112. Ms Charlson said in paragraph 9 of her statement that she had a
conversation with Ms Hayward on the morning of 10 March 2014. In
it Ms Hayward said that she had had a really bad weekend. She then
volunteered, without having yet heard of Mr Holmes’s bullying
complaint, that she could understand how her conduct towards Mr
Holmes could be perceived by him as bullying. This, according to Ms
Charlson, gave her the entrée into telling Ms Hayward that Mr Holmes
had just made a formal complaint of bullying. Ms Charlson says that,
at this point, her discussion with Ms Hayward simply ended, with Ms
Hayward asking her nothing about Mr Holmes’s complaint, Ms
Charlson not telling her anything about the substance of that complaint,
and the two of them not discussing the preparation by Ms Hayward of
a list of concerns about Mr Holmes. This was a remarkably short
conversation.
71 David Holmes, witness statement, 2/10/14, attachment C.
1364
113. That version of events is an unlikely one.
114. It would be a remarkable coincidence if, just after Ms Charlson
received a formal and detailed complaint of bullying from Mr Holmes
on 10 March 2014, Ms Hayward would suddenly present herself in Ms
Charlson’s office, have a chat about the weekend, and happen to
volunteer (against her own interests) that she had been considering
whether she had been bullying Mr Holmes.
115. Ms Charlson’s evidence did not demonstrate that, prior to this meeting
on 10 March 2014, Ms Charlson had told Ms Hayward that Mr Holmes
had accused her of bullying him. That makes the coincidence all the
more difficult to accept.
116. According to Ms Charlson, there had been some communications on
the previous Friday, 7 March 2014. However, even on her own
account of those conversations, Ms Hayward was not told that Mr
Holmes thought that she was bullying him.
117. The relevant alleged prior conversation is set out in paragraph 6 of Ms
Charlson’s statement. That evidence is that on 7 March 2014:72
(a) Mr Holmes said to Ms Charlson that Ms Hayward’s stress was
affecting him;
(b) Ms Charlson, Ms Wray and Ms Hayward later discussed a
number of matters relating to Mr Holmes’s performance;
72 Leah Charlson, witness statement, 24/10/14, para 6.
1365
(c) in that conversation, Ms Charlson told Ms Hayward in passing
that Mr Holmes had said that Ms Hayward’s stress was affecting
him; and
(d) Ms Charlson asked Ms Hayward to prepare a list of complaints
about Mr Holmes.
118. On no view of this evidence could the alleged passing comment from
Ms Charlson to Ms Hayward on 7 March 2014 have been taken by Ms
Hayward as an indication that Mr Holmes had complained that she was
bullying him. On Ms Charlson’s own account, it was no more than an
indication that Ms Hayward’s stress was affecting Mr Holmes. That is
an entirely different proposition from a proposition that Ms Hayward
was bullying Mr Holmes.
119. When the implausibility of the version of events set out in paragraph 9
of Ms Charlson’s statement was put to her, particularly given the
content of paragraph 6 of her statement,73 Ms Charlson then began to
shift her emphasis and suggest that, whilst she did not recall using the
word ‘bullying’ in this conversation of Friday 7 March 2014, she may
well have done so,74 and that as a result, it might have been the case
that on that Friday Mr Holmes had spoken to Ms Charlson in terms that
he had indicated that he had a concern about being bullied by Ms
Hayward.75
73 Leah Charlson, 24/10/14, T:1069ff. 74 Leah Charlson, 24/10/14, T:1070.22ff, . 75
Leah Charlson, 24/10/14, T:1071.34-37, 1074.7-13.
1366
120. If that is right, the sequence of events is that Mr Holmes first
complained about bullying and asked Ms Charlson to help him, that
subsequently Ms Hayward complained about Mr Holmes’s
performance and was immediately warned by Ms Charlson that Mr
Holmes had been complaining about her, and that there then followed a
request from Ms Charlson to Ms Hayward to put her concerns about
Mr Holmes in writing.
121. On this basis, regardless of whether that sequence of events occurred
on Friday 7 March 2014 or Monday 10 March 2014, the position
would be that Mr Holmes’s bullying concerns were raised first in time,
and that when Ms Hayward was put on notice of it by Ms Charlson, the
idea of Ms Hayward preparing a list of concerns about Mr Holmes was
discussed between Ms Charlson and Ms Hayward. This was the very
impression that Ms Charlson had been seeking to avoid by setting
matters out in the sequence she did in her statement. However, by
changing emphasis in the manner described above in order to deal with
the implausibility of paragraph 9 of her statement (as described above),
that impression was again emerging.
122. When that was put to Ms Charlson during her examination, she sought
to retreat from the proposition that there may have been a conversation
about bullying on Friday 7 March 2014, and that instead his complaint
had been ‘much, much milder’.76 By retreating in this way, she was
again exposing the inherent implausibility of the conversation as
described in paragraph 9 of her statement.
76 Leah Charlson, 24/10/14, T:1072.31.
1367
123. Although she was not prepared to accept it, in the witness box, Ms
Charlson was seeking to shift the emphases in her evidence over time,
in order to deal with the immediate problem that confronted her in
relation to any question.77
124. A further difficulty with Ms Charlson’s evidence as to her conversation
with Ms Hayward on 10 March 2014 is that she invites acceptance of
the proposition that, when she did tell Ms Hayward that Mr Holmes
had lodged a formal complaint of bullying, Ms Hayward did not even
ask her what the complaint was about, and the entire conversation on
that subject came to an end.78
125. According to Ms Charlson, on the morning of 10 March 2014, Ms
Hayward was more composed, did not appear to be distraught about
the fact of the complaint and asked no more about it.79 This was,
apparently, in contrast to her condition on the previous Friday, 7 March
2014, when, in respect of precisely the same individual (Mr Holmes),
Ms Hayward was described as crying and being very upset.80
126. It was then put to Ms Charlson that there must have been more to her
conversation with Ms Hayward on 10 March 2014 because only
shortly after that conversation, Ms Hayward had sent an email to one
77 Leah Charlson, 24/10/14, T:1072.38-45. 78 Leah Charlson, 24/10/14, T:1078.34-1079.9. 79
Leah Charlson, 24/10/14, T:1078.14-28. 80 Leah Charlson, witness statement, 24/10/14, para 6.
1368
of her friends telling her that ‘Leah says I have nothing to worry
about’.81
127. Ms Charlson’s answer was to say that she thought there may have been
another conversation on the same day where she said to Ms Hayward ‘I
don’t think you need to be overly concerned’.82 She did not mention
this conversation in her statement.
128. Ms Charlson was not prepared to accept that, having seen from Ms
Hayward’s email of 10 March 2014 recording Ms Charlson having told
her she had nothing to worry about in relation to Mr Holmes’s
complaint, Mr Holmes would have been concerned about whether his
complaint was going to be dealt with properly and fairly.83 This was
an illuminating illustration of Ms Charlson’s inability to deal openly
and credibly with the events the subject of her evidence.
129. Ms Charlson was then asked whether she thought it was appropriate for
her to be saying to Ms Hayward, the subject of a bullying complaint,
that she, who was responsible for investigating that complaint, did not
seem to be overly concerned, before any investigation into the
complaint had been undertaken. She endeavoured to justify her
behaviour by saying that she spoke to Ms Hayward in this way because
she was very unstable and very upset.84
81 Leah Charlson, 24/10/14, T:1079.14; David Holmes, witness statement, 2/10/14, attachment C, p 3. 82
Leah Charlson, 24/10/14, T:1079.17-18. 83 Leah Charlson, 24/10/14, T:1081.31-1082.16. 84
Leah Charlson, 24/10/14, T:1079.20-23.
1369
130. Again, Ms Charlson’s evidence had begun to move about and modify
itself in order to suit the particular question in front of her. Having
explained away the remarkably short conversation in paragraph 9 of
her statement on the grounds that Ms Hayward was not distraught, she
then endeavoured to excuse her own behaviour in providing an
assurance to Ms Hayward about Mr Holmes’s bullying complaint on
that same morning on the ground that Ms Hayward was very upset.
131. Ms Charlson’s evidence on these matters was unsatisfactory. The
probabilities are that the relationship between Ms Hayward and Mr
Holmes prior to 10 March 2014 was not a particularly happy one. For
his part, Mr Holmes felt that he was being bullied, and on 10 March
2014 made a formal complaint about that matter and provided with Ms
Charlson with a copy of it. Ms Charlson’s reaction to the receipt of
that complaint was to have a private meeting with Ms Hayward during
which she told Ms Hayward about the fact of the complaint and said to
Ms Hayward that she had nothing to worry about, and the two of them
then discussed the preparation of a list by Ms Hayward setting out a
series of performance concerns with respect of Mr Holmes.
Mr Holmes’s document of 11 March 2014
132. Regardless of the precise sequence of events on 10 March 2014, there
is no doubt that Mr Holmes intercepted and read a copy of Ms
Hayward’s email of that day to Ms Charlson, and the attached list of
concerns about his performance.
1370
133. Mr Holmes took that matter seriously. He set about preparing a
document with his responses to each of the grounds of concern set out
in Ms Hayward’s list.85
134. Mr Holmes completed that document on 11 March 2014. On that day
he attended a meeting with Ms Mallia, Ms Wray and Mr Kesby during
which his bullying complaint and his performance were discussed.86
At that meeting, Mr Holmes handed over a copy of the document
prepared in response to Ms Hayward’s list of concerns.87
135. One of the matters Ms Hayward raised in her list of concerns was that
Mr Holmes was accused of having extended absences away from his
desk. Mr Holmes endeavoured to deal with that in his responsive
document. Mr Holmes set out in his document examples of occasions
where he had been required to be away from his desk for extended
periods of time.
136. One of the occasions was the occasion in mid-February 2014 where he
had been called upon by Ms Charlson to go through the wage files,
remove certain documents and photocopy the balance.
137. In relation to that matter, he stated in his document of 11 March 2014
as follows:88
In or about mid-February 2014 … I was required to drop all other tasks for the entire day to search, copy and remove any incriminating or unpalatable
85 David Holmes, witness statement, 2/10/14, paras 10-11. 86 David Holmes, witness statement, 2/10/14, para 19. 87
David Holmes, witness statement, 2/10/14, para 20. 88 David Holmes, witness statement, 2/10/14, attachment D, p 3, item d.
1371
material from the Wage Claim files relating to Active Labour and the legal manifestations of same.
This entailed taking the entire day away from my desk, both for privacy with respect to the task and because the photocopier unit in the level 1 print room was being repaired.
138. As earlier pointed out, the fact that he recorded this in his document of
11 March 2014 is a powerful near contemporaneous indicator of the
fact that such an instruction had been given.
139. Mr Holmes’s account of this matter in this document was not intended
to damage the union in any way. He was responding, in a fairly
mechanical fashion, to a range of concerns that had been raised in
relation to his performance. He was doing no more than explaining
why it was he had been away from his desk on a particular day. The
actual activity he conducted at that time was not a matter of particular
concern to him.
The lack of response to the 11 March 2014 document
140. At an early stage in the evidence there appeared to be a three week
delay in Ms Charlson’s response to Mr Holmes’s 11 March 2014
document - for it was not until 2 April that she had a discussion with
Ms McWhinney about it. When Ms Mallia received Mr Holmes’s 11
March 2014 document, she read through it. She then had a discussion
with Ms Wray and Ms Charlson about how to resolve the issue. She
regarded the allegation in relation to what Mr Holmes had been asked
to do in mid-February 2014 as a serious one. She gave clear evidence
in her statement that Ms Charlson’s attention was drawn to the
1372
allegation on 11 March 2014.89 She said she gave Ms Charlson a copy
of Mr Holmes’s document on 11 March 2014 and asked Ms Charlson
to follow it up.90 In her oral evidence, Ms Mallia confirmed that she
left the matter with Ms Charlson to deal with.91
141. At the same time Ms Mallia’s statement to the above effect was
delivered to the Commission, the CFMEU also delivered a statement
from Ms Charlson. In paragraph 18 of that statement Ms Charlson
said that to the best of her recollection, it was during the week
commencing 10 March 2014 that she became aware of Mr Holmes’s
response and the allegation about the instruction of mid-February
2014.92 This is entirely consistent with Ms Mallia’s evidence. It also
creates the three week delay problem.
142. Ms Charlson was overseas when Ms Mallia was examined at the
Commission. One of the serious matters raised for Ms Mallia’s
attention during that examination was the fact that no action appeared
to have been taken in respect of Mr Holmes’s allegation in his 11
March 2014 document in relation to the February 2014 instruction for
some three weeks.93
143. On 24 October 2014, when Ms Charlson came to be examined, she
immediately indicated a desire to change her witness statement by
altering the date 10 March 2014 to 25 March 2014, thus reducing that
89 Rita Mallia, witness statement, 2/10/14, para 8. 90 Rita Mallia, 2/10/14, T:549.16-552.3; Rita Mallia, witness statement, 2/10/14, para 8. 91
Rita Mallia, 2/10/14, T:551.1-20. 92 Leah Charlson, witness statement, 24/10/14, para 18. 93
Rita Mallia, 2/10/14, T:550.43ff.
1373
three week delay to a smaller (albeit still revealing) lapse in time
between her alleged discovery of the allegation and the taking of any
action.
144. She attempted to explain this change in position by reference to a
photocopy of one of the many copies of Mr Holmes’s 11 March 2014
document which contained upon it handwriting to the effect that the
document had been received on 25 March 2014.
145. Ms Charlson’s revised evidence (which conveniently narrowed the
three week delay by a significant period) is entirely at odds with Ms
Mallia’s evidence on this matter as set out above.
146. The most likely explanation is that Ms Mallia did provide Ms Charlson
with a copy of Mr Holmes’s document on or about 11 March 2014. In
this regard, Ms Charlson was the Senior Legal Officer of the Branch.
It is thus likely that Ms Mallia would have provided her with a copy of
the document straight away. Ms Mallia indicated that she was, at the
time, going to be interstate for the next two weeks.94 This makes it
more likely that she would have given the document to Ms Charlson to
deal with in her absence.
147. It may well be that Ms Charlson received more than one copy of the
document. She may have received a copy on 25 March 2014 and made
a notation on it. That does not mean that she did not also receive a
copy on 11 March 2014.
94 Rita Mallia, 2/10/14, T:551.1.
1374
148. On balance, Ms Charlson’s evidence to the effect that she received Mr
Holmes’s document on 25 March 2014 should not be preferred to the
evidence of Ms Mallia. Ms Charlson was endeavouring to reconstruct
what must have occurred with the aid of a document that had the
handwritten date on it. However that clashed with her own initial
independent recollection of what occurred, as set out in paragraph 18
of her statement as produced. She was overly anxious to accept a
reconstruction of events in which the date of paragraph 18 was 25
March 2014 and not 10 March 2014 because she was aware of the
difficulties created by the three week delay.
149. In any event, whether the date she first received Mr Holmes’s
document was 10 March 2014 or 25 March 2014, it appears that Ms
Charlson did nothing about it until, by chance, she had a discussion
with Ms McWhinney on 2 April 2014.95 This period of delay on Ms
Charlson’s part, whether that delay be one of three weeks or some
shorter period, suggests that she preferred to sit on the matter rather
than undertake any real investigation into it. This is consistent with her
recognition of the fact that she had given the instruction to Mr Holmes
in mid-February 2014.
150. According to Ms Charlson, when she received the document she was
‘very concerned’ and later said to Ms McWhinney and Mr Holmes
‘My heart stopped when I read this and I’m sure Keryn’s did too’.
That evidence is inconsistent with the fact that Ms Charlson did not, in
fact, take action when she received the document. Her evidence as to
these matters should not be accepted. The only thing that concerned
95 Leah Charlson, witness statement, 24/10/14, para 19; Leah Charlson, 24/10/14, T:1084.18-20.
1375
Ms Charlson when she read Mr Holmes’s document of 11 March 2014
was that he had recalled the instructions she had given him in mid-February 2014.
151. This was put to Ms Charlson at a time when she had already changed
her evidence as to the date of receipt of Mr Holmes’s 11 March 2014
document, though she had to pay the price of giving evidence
conflicting with Ms Mallia on the point. Ms Charlson then attempted
to go even further by raising some doubt as to whether she even read
the document on 25 March 2014, and suggesting the possibility that
she did not read it until some later date.96
152. Ms Charlson was a highly professional and experienced solicitor. It is
most unlikely that the 11 March 2014 document would have been
provided to Ms Charlson, with its serious allegation about file
alteration, in a manner which would have led Ms Charlson to be
unaware of its contents on the date she received it. The document
raised a serious matter that was troubling the Branch President. It is
inherently unlikely that this would not have been drawn to Ms
Charlson’s attention either at or before the time when the document
was given to her. Ms Charlson’s own statement constitutes evidence
that she was aware of the issue on receipt of the document.97 Again,
the shifting nature of Ms Charlson’s evidence was unimpressive.
96 Leah Charslon, 24/10/14, T:1092.7-16. 97 Leah Charlson, witness statement, 24/10/14, para 18.
1376
The 2 April 2014 conversation
153. The next significant event took place on about 2 April 2014. On that
day Mr Holmes, Ms Charlson and Ms McWhinney discussed Mr
Holmes’s claim about the instruction he received in February 2014.
154. According to Mr Holmes, at this meeting, Ms Charlson tried to suggest
that she had not given the instruction. She raised for consideration the
possibility that Ms McWhinney may have done so. Mr Holmes’s
evidence is that he then said to Ms Charlson ‘The instruction came
from you. Keryn had nothing to do with it’. To this, Ms Charlson said
‘We’ll have to sort this out later’.98
155. Ms Charlson was prepared to accept that, during this conversation,
they did talk about the fact that Mr Holmes had been asked to ‘separate
out the documents which we needed to look at more closely’.99
Similarly, in paragraph 20 of her statement, Ms Charlson accepted that
Mr Holmes said at this meeting that his instruction was to remove
documents from the files and put them in a separate pile.100
156. The fact that Ms Charlson was prepared to accept that there were
conversations in which reference was made to Mr Holmes being asked
to separate out the documents supports a finding that that is, in fact,
what Mr Holmes was told to do.
98 David Holmes, witness statement, 2/10/14, para 21. 99 Leah Charlson, witness statement, 24/10/14, para 19. 100
Leah Charlson, witness statement, 24/10/14, para 20.
1377
157. There is, in fact, little in the way of difference between Mr Holmes’s
account of the 2 April 2014 conversation and that of Ms Charlson, save
that Ms Charlson’s version is worded to create the impression that the
instruction given to Mr Holmes in mid-February 2014 had come from
Ms McWhinney (and not Ms Charlson). Ms Charlson’s account of this
conversation of 2 April 2014 cannot be preferred to that of Mr Holmes.
It is probable that the instruction was given by Ms Charlson, not Ms
McWhinney.
158. Ms McWhinney gave a substantially different version of the 2 April
2014 conversation, thus immediately raising concerns as to its
reliability. According to Ms McWhinney, Ms Charlson said that Mr
Holmes had already told her (prior to this conversation) that Ms
McWhinney had instructed him to ‘remove and destroy’ documents
from the wage claim files.101 This should not be accepted. No other
witness suggested that Mr Holmes had been instructed to destroy
documents, or had told anyone that he had been asked to destroy
documents. Indeed Ms McWhinney’s own email correspondence of
the time does not indicate it was ever suggested that Mr Holmes had
been instructed to destroy documents.102 Ms McWhinney’s evidence
embellished the contemporary record.
159. Ms McWhinney endeavoured to advance the proposition that Mr
Holmes remained mute during the whole of this conversation, even
101 Keryn McWhinney, witness statement, 2/10/14, para 20. 102 Keryn McWhinney, witness statement, 2/10/14, annexure KMW2 (p 9).
1378
though the matter concerned a significant statement that he had made
that was now under consideration.103 This is not credible.
160. For these reasons, Ms McWhinney’s account of the 2 April 2014
meeting should not be accepted.
The 2 April 2014 email and the related conversation
161. Ms McWhinney, Ms Charlson and the CFMEU place reliance upon an
email dated 2 April 2014 from Ms McWhinney to Ms Charlson.104
162. The polite characterisation of this email is that in it Ms McWhinney
asserted that Mr Holmes had said various things in a private discussion
between the two of them. The blunt characterisation is that she
verballed him. According to that email, Mr Holmes told Ms
McWhinney that her instruction was not about financial arrangements
and, in his opinion, ‘my instruction’ was about copying relevant wage
claims and internal file notes and identifying any areas of bad
behaviour like robust or offensive language.
163. The email sets out an over-decorated version of the conversation of Ms
McWhinney and Mr Holmes. It was prepared by Ms McWhinney for
the purpose of protecting the position of the CFMEU. The fact that she
had no confidence in its accuracy is evident from her decision not to
copy Mr Holmes in on the email or not to ask him, ever, whether he
agreed that the email accurately recorded what he had said.
103 Keryn McWhinney, witness statement, 2/10/14, paras 20-23. 104 Keryn McWhinney, witness statement, 2/10/14, annexure KMW2.
1379
164. It is quite likely that Mr Holmes did say to Ms McWhinney that he had
been instructed to remove offensive documents from the wage claim
files, and in this respect, what is set out in the email of 2 April 2014 is
not controversial.
165. However, the adornments include matters such as the assertion that the
instruction came from Ms McWhinney and not Ms Charlson, and the
suggestion that the instruction would not have extended to ‘financial
arrangements’. Indeed the statement in the email ‘my instruction was
not about financial arrangements’ does not make much sense. It is not
at all clear what this means. Nor is at all clear how it could be that the
alleged instruction from Ms McWhinney could have ever been
understood to have had that carve out.
166. Whatever the purpose of the 2 April 2014 email, it would seem that
neither Ms McWhinney nor Ms Charlson wanted Mr Holmes to
consider and assess its accuracy or otherwise. This may be inferred
from the fact that neither of them were prepared to send it to Mr
Holmes for his consideration. It was simply filed away.
Incomplete records observed by Mr Slevin and others
167. On 4 March 2014, Taylor & Scott, the solicitors acting on instruction
from officers of the NSW Branch, sent Mr Michael O’Connor and Mr
Thomas Roberts of the CFMEU’s National Office a copy of the
documents that they had retrieved in response to Mr Slevin’s
1380
request.105 This included the incomplete copy of the wage claim files
that Mr Holmes had prepared for Ms Charlson.
168. Further, documents were then provided by Taylor & Scott to Mr
O’Connor on 18 March 2014. None of those documents were
documents from any wage claim file.106
169. On 10 April 2014, Mr O’Connor wrote back to Taylor & Scott noting
the limited information that had been provided in relation to the wage
claims and asking if there were any other documents available.107
Taylor & Scott responded by letter of 24 April 2014 noting that the
Branch had not been able to find any other documents of that kind.108
170. In his report, Mr Slevin made various observations in relation to the
incomplete state of certain wage claim records.109
105 Roberts MFI-1, 23/9/14, p 47. 106 Roberts MFI-1, 23/9/14, p 75. 107
Roberts MFI-1, 23/9/14, p 166. 108 Roberts MFI-1, 23/9/14, p 168. 109
Roberts MFI-1, 23/9/14, p 213.
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Returning to the competing evidence as to the February 2014 instruction
171. Earlier it was concluded that Mr Holmes’s evidence in relation to the
events of mid-February 2014 should be preferred to that of Ms
Charlson and Ms McWhinney. The additional reasons for this
advanced by counsel assisting are set out below. Then the submissions
of persons other than Mr Holmes will be considered.
Mr Holmes
172. The Holmes version of events has already been described.
173. Mr Holmes presented as a witness of truth. He did not prevaricate in
the witness box. He did not seek to give overly clever, contrived,
lengthy, or non-responsive answers to the questions he was asked. He
did not present an embellished account of events. For example, he did
not pretend that he could recall the contents of any of the documents he
removed from the files. His version of events was corroborated by a
near contemporaneous record, being his document of 11 March 2014.
That document was not created to harm the union, and the record he
made of the instruction served no great purpose at the time. It merely
recorded one of a large number of occasions where he had been
required to do work away from his desk.
1382
Ms Charlson
174. Ms Charlson’s evidence was that she did not give any instruction to Mr
Holmes, and merely asked him to give Ms McWhinney whatever help
she required in responding to Mr Slevin’s request.110
175. Ms Charlson’s evidence and performance in the witness box was
unsatisfactory. As explained at various different points above, Ms
Charlson presented as a talented but not particularly credible witness.
Her evidence appeared contrived. Under examination she continually
sought to change the shade of her evidence to suit the immediate
question before her. Examined as a whole, the tone and tint of these
shades are clashing, not harmonious.
Ms McWhinney
176. Ms McWhinney said in paragraph 14 of her statement that she said to
Mr Holmes:111
I’m going to take you through what you need to do concerning the request for production of documents. The two companies are Elite Scaffolding and Active Labour. We want only the types of documents from the files that I have marked in yellow on the documents request, for example, spreadsheets, anything relating to Cbus and ACIRT, correspondence and emails, company searches, any other type of calculations, employee lists and receipts. This will be just about all the documents in a wage claim file. You will need to keep the documents in two separate bundles being the original files and the copy files. Do you understand?
177. Ms McWhinney said that Mr Holmes indicated he understood this
request, but that after a couple of hours she found that Mr Holmes was
110 Leah Charlson, witness statement, 24/10/14, paras 16-17. 111 Keryn McWhinney, witness statement, 2/10/14, para 14.
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confused and not doing the task properly. As a result, she just asked
him to photocopy the files.112
178. There are a number of problems associated with Ms McWhinney’s
evidence. Some have already been described in earlier parts of these
submissions. Additional difficulties are set out below.
179. First, as earlier noted, Mr Slevin’s request was simple enough. It was a
call for the wage claim files for Active Labour and Elite Scaffolding.
Ms Charlson understood that. All that it required was for the files to be
pulled from the shelves and sent to Mr Slevin. There was no need for
the elaborate instruction Ms McWhinney claims she gave.
180. The alleged instruction to Mr Holmes described in paragraph 14 of Ms
McWhinney’s statement, if made, was quite bizarre. According to her,
the specific kinds of documents she says she listed out to Mr Holmes
were, in essence, all of the documents that she expected the wage claim
files would contain. If that were so, why give an instruction in those
terms in the first place? Why not just get the files and pass them on?
Ms McWhinney did not offer any explanation in her statement as to
why she would have said what she alleges she said.
181. When examined, Ms McWhinney changed her evidence as to the terms
of the alleged conversation with Mr Holmes. She asserted that her
instruction was to remove anything from the files that did not relate to
112 Keryn McWhinney, witness statement, 2/10/14, para 16.
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Active and Elite and which had been accidentally included in the wage
claim files for those companies.113
182. This new version in Ms McWhinney’s oral evidence was
unimpressive.
183. First, it represented a different account of the alleged conversation to
that set out in paragraph 14 of Ms McWhinney’s statement. The
conversation described in her statement was to the effect that she had
highlighted particular kinds of documents on Mr Slevin’s list of
documents and only wanted Mr Holmes to copy those documents.
However, now she described a different kind of conversation, in which
Mr Holmes was effectively instructed to copy the contents of the wage
claim files, save for any document that might have been misfiled.
184. Secondly, the new version is not believable. In the ordinary course of
events, the file would be expected to contain the appropriate records.
The fact that there might be a rare misfiling of a document would be a
matter of no real consequence. It would not have given rise to any
concern. It certainly would not have given rise to a concern that would
have led Ms McWhinney to think it necessary to task anyone to sift
through all of the files in search of a piece of paper that just might have
been misfiled.
185. There were other problems with Ms McWhinney’s evidence.
186. One example is that the version of the instruction set out in her
statement proceeded on the basis that she gave Mr Holmes a copy of
113 Keryn McWhinney, 2/10/14, T:515.19-24.
1385
Mr Slevin’s document request with certain kinds of documents
highlighted, and that he was only to search for those highlighted
documents in the wage claim files (even though that was not what Mr
Slevin had asked for). The highlighted categories included emails and
audits. She also said that, in her oral instruction, she told Mr Holmes
to locate correspondence, emails and other categories of documents
from the wage claim files.
187. However, in her examination, Ms McWhinney said that wage claim
files were just clerical or administrative files that would only contain
spreadsheets,114 and would not contain emails from the officers who
were working on the files.115 She was not able to give a credible
explanation as to why she would have asked Mr Holmes to locate and
copy documents in the wage claim files of a kind which, according to
her, would not be on those files.116 This suggests that the conversation
Ms McWhinney described in her statement did not take place.
188. From time to time Ms McWhinney showed discomfort in having to
answer questions, and displayed a strong desire to refer back to and
rely on her statement in lieu of giving a direct answer to the
questions.117 This indicated her lack of confidence in her ability to
stick to the version of events that had been put in her statement. It
indicated her fear that she would say something inconsistent.
114 Keryn McWhinney, 2/10/14, T:519.20-24. 115 Keryn McWhinney, 2/10/14, T:519.24-26. 116
Keryn McWhinney, 2/10/14, T:536.30-39. 117 Keryn McWhinney, 2/10/14, T:514.1, 515.35.
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189. There was another unimpressive aspect of Ms McWhinney’s evidence.
She stated that Mr Holmes had allegedly been given a very simple
instruction to take out of the wage claim files documents that did not
relate to the companies in question. But she stated that that instruction
was ‘a bit too difficult for him to understand’. She said Mr Holmes
had been confused about what he was supposed to be doing.118
190. Mr Holmes gave evidence in a calm and considered way. He
expressed himself in terms which indicated reasonable intelligence.
The fact of his intelligence is also obvious from the terms of the
documents he prepared on 10 and 11 March 2014. Ms Charlson
attacked these propositions by contending that Mr Holmes was in poor
physical and mental health.119 That contention does not refute them.
The suggestion by Ms McWhinney that Mr Holmes is someone who
would not be capable of understanding a simple request of the kind Ms
McWhinney says she gave is not credible. The event she described did
not occur. Her evidence on this particular topic was condescending,
and unpleasant. It was untrue.
118 Keryn McWhinney, 2/10/14, T:517.28, 518.45-46. 119 Ms Leah Charlson’s submissions, 19/11/14, para 52.
1387
The submissions of the CFMEU and Ms Charlson
191. The CFMEU submitted that this matter is outside the Terms of
Reference.120 Ms Charlson supported the submission.121 The CFMEU
submitted that the question of what occurred in February 2014 is at
best tangential to the Alex case study referred to in Chapter 8.5. The
conduct is at least within para (k), as reasonably incidental to the Alex
case study, which it is accepted is within the Terms of Reference.
192. The CFMEU also submitted that even if the matter were within the
Terms of Reference, it should be left for resolution at the same time as
the Alex issue.122 However, factually the February 2014 inquiry seems
to be complete from the evidentiary point of view. Hence, it may as
well be dealt with now.
193. Turning to factual questions, Mr Holmes, not surprisingly, supported
the submissions of counsel assisting.123
194. Ms Charlson began her submissions by relying on Briginshaw v
Briginshaw.124 It is understandable that she did so. It is a serious thing
for a solicitor to suppress documents. Ms Charlson also relied on
120 CFMEU submissions, 14/11/14, Pt 8.6, paras 14-18. 121 Ms Leah Charlson’s submissions, 19/11/14, paras 2, 113. 122
CFMEU submissions, 14/11/14, Pt 8.6, para 18. 123 Mr Holmes’s submissions, 13/11/14, paras 1-3. 124
(1938) 60 CLR 336.
1388
Wilson v Foxman in support of the proposition that human memory of
conversations is fallible.125
195. The CFMEU’s written submissions126 boil down to four points. One is
that Mr Holmes has a motive to make accusations against Ms Charlson
because she criticised his work on 28 August 2014.127 Although this
charge was specifically denied by Mr Holmes,128 Ms Charlson also
supported this.129 The second point is that, when considered alongside
other witnesses, Mr Holmes is ‘simply unreliable’130 and ‘vague’.131
The third is that Mr Holmes’s evidence that he spent a day removing
100-150 documents, but cannot recall one of them is incredible.132 The
fourth is that it is:133
inherently unlikely that people in the position and with the standing of Ms McWhinney and Ms Charlson, a senior lawyer, would have taken Mr Holmes into their confidence and asked him to remove documents from files in circumstances where he would have to exercise his judgment about the nature and import of the documents and where that activity was designed to deceive the person who had sought the files and documents.
196. To those considerations, Ms Charlson added another - Mr Holmes’s
distress, deteriorating health and lack of ability to function normally,
125 (1995) 49 NSWLR 315 at 318. 126 Various oral submissions made by the CFMEU correspond with some of those made by Ms Charlson: J Agius SC, T:15.29-21.14. 127
CFMEU submissions, 14/11/14, Pt 8.6, para 21. 128 David Holmes, 2/10/14, T:508.21-27. 129
Ms Leah Charlson’s submissions, 19/11/14, paras 47-50. 130 CFMEU submissions, 14/11/14, Pt 8.6, para 34; see also para 29. 131
CFMEU submissions, 14/11/14, Pt 8.6, para 35. 132 CFMEU submissions, 14/11/14, Pt 8.6, paras 30, 34. 133
CFMEU submissions, 14/11/14, Pt 8.6, para 35.
1389
putting in doubt his ability to record accurately oral statements, and
leading to the conclusion that he is the victim of a misunderstanding.134
197. There is a tension between these five points. Unreliability, vagueness
and ill health fall into one category. Motives to accuse, lack of
credibility and inherent unlikelihoods fall into another. There is no
reason at all to conclude that Mr Holmes was lying, whether because
motivated by hatred or any other considerations. That leaves
unreliability. It is necessary to compare Mr Holmes’s reliability with
that of others. That comparison is favourable to Mr Holmes.
198. Ms Charlson’s submissions, incidentally, exaggerated Mr Holmes’s
health difficulties. The submissions quoted the following words about
himself from his letter of 10 March 2014 to the effect that he had been
‘unable to complete basic work tasks, spelling simple words and have
even had trouble remembering [his] own name’.135 The submission
then spoke of Mr Holmes’s ‘profound problems’.136 But the
submissions omitted the words preceding that quotation from the 10
March 2014 letter: ‘On receipt of information I have felt so
humiliated; undermined and unwanted that I have been’. In the words
quoted in Ms Charlson’s submissions, Mr Holmes was not offering a
general description of himself. He was describing only his reaction to
particular incidents. The documents he wrote on 10 and 11 March
2014, and the evidence he gave, are quite inconsistent with the words
quoted selectively by Ms Charlson’s submissions.
134 Ms Leah Charlson’s submissions, 19/11/14, para 39. 135 Ms Leah Charlson’s submissions, 19/11/14, para 39. 136
Ms Leah Charlson’s submissions, 19/11/14, para 39.
1390
199. Ms Charlson’s submissions did not explain her tardiness, and that of
the CFMEU generally, in responding to the 11 March 2014 document.
She said she was not responsible for that matter, but that is contrary to
Ms Mallia’s very precise evidence on this point.137
200. Ms Charlson’s submissions stress the absence of any contemporary
record of the February conversation between herself and Mr
Holmes.138 They attack Mr Holmes for his lack of recollection
independently of his document of 11 March 2014.139 But they do not
adequately explain why that document is to be discounted. It is true
the document does not name Ms Charlson, but there is other evidence
that she issued the instruction to Mr Holmes. Ms Charlson drew
attention to the following words in that document: ‘I was required to
drop all other tasks for the entire day to search, copy and remove any
incriminating or unpalatable material.’ Ms Charlson submitted:140
It is difficult to understand why any employee of the CFMEU, such as Ms Charlson, might wish, simultaneously, to withhold documents whilst procuring a copy of them. In the normal course a person who desires to cover up documents does not first create additional copies.
201. This supposed reductio ad absurdum seeks to construe the 11 March
2014 email remorselessly. It construes it to mean that the instruction
was first to copy the whole of the wage claim files and then remove
incriminating or unpalatable material. But Mr Holmes was speaking
informally and not necessarily describing events chronologically. It is
clear that the task was to search the files, remove some material and
137 Rita Mallia, witness statement, 2/10/14, para 8; Rita Mallia, 2/10/14, T:549.22-551.20. 138 Ms Leah Charlson’s submissions, 19/11/14, paras 41, 72. 139
Ms Leah Charlson’s submissions, 19/11/14, paras 45, 75. 140 Ms Leah Charlson’s submissions, 19/11/14, para 73.
1391
copy the balance. Ms Charlson’s submissions about the 11 March
2014 document continued:141
It is equally improbable that the task of selecting “incriminating” documents … was entrusted to someone who had not the training to determine what was, or was not, incriminating; a fortiori when his performance was under review. The far more likely reason why a junior employee was tasked with reviewing the files was that he was engaged upon what ought to have been the comparatively undemanding task of removing documents that had nothing to do with Elite or Active (as Ms McWhinney contends).
202. Mr Holmes may have been a junior employee, and he was, unlike Ms
Charlson and others, not a solicitor. But it takes no legal skill to decide
what was unpalatable. And he had legal training - a fact which Ms
Charlson, rather inconsistently, seeks to invoke to her advantage
elsewhere.142 That legal training would have been of some assistance
in guiding him to decide what was incriminating.
203. Ms Charlson made some specific attacks on Mr Holmes’s credit. She
submitted that he fell into a contradiction. In his oral evidence he said
that because of Ms Charlson’s request in February he had to look at ‘a
lot of documents in a very short amount of time’.143 But in his list of
complaints144 he said this ‘entailed taking the entire day away from my
desk’. Ms Charlson submitted that an entire day is not a ‘very short
period of time’. She attacked his testimony as wrong.145 Attacks of
this level of pedantry tend to support the victim, not the attacker. The
141 Ms Leah Charlson’s submissions, 19/11/14, para 74. 142 Ms Leah Charlson’s submissions, 19/11/14, para 83. 143
David Holmes, 2/10/14, T:502.1-2. 144 David Holmes, witness statement, 2/10/14, Annexure D, para 2(d). 145
Ms Leah Charlson’s submissions, 19/11/14, paras 43-44.
1392
two statements are not inconsistent. As counsel assisting submitted in
reply:146
The first statement is a relative one. It depends upon a variety of factors. One obvious factor is how many files and documents he was given to deal with in the time. Other factors include how long he had [actually to] review them relative to the other tasks to be attended to in order to carry out the job assigned to him, including arranging for lists of files to be obtained, getting those files located, working his way through the files, copying portions of them, organising the different piles of materials and arranging for files to be returned.
204. The next inconsistency Ms Charlson alleges is that in his statement Mr
Holmes said that he ‘had been raising complaints [about bullying]
informally since October 2013’.147 In his written complaint of 10
March 2014, Mr Holmes said he failed to address bullying.148 Ms
Charlson submitted:149
These two versions are directly contradictory; either Mr Holmes had been complaining for a number of months, (which is denied by Ms Charlson), or he had “failed to address” the matter. Both cannot be true.
205. But the first proposition relates to the informal complaints he made, the
second to the formal complaints he did not make. No inconsistency
was ever suggested in cross-examination.
206. Ms Charlson’s submissions attacked Mr Holmes on the ground that in
the witness box he could not remember what Ms Charlson said to him
in February 2014.150 That evades the point: what could he remember
on 10 March 2014? And the submission misrepresents the effect of
146 Counsel assisting’s written submissions in reply to Ms Charlson, 25/11/14, para 30. 147 David Holmes, witness statement, 2/10/14, para 4. 148
David Holmes, witness statement, 2/10/14, Annexure A (p 2). 149 Ms Leah Charlson’s submissions, 19/11/14, para 46. 150
Ms Leah Charlson’s submissions, 19/11/14, para 49.
1393
David Holmes’s evidence by referring to only a sliver of it. Read as a
whole, his evidence strongly supports the conclusion that he was told
to delete whatever was ‘incriminating or unpalatable’.151
207. The competing submissions on the factual aspects of this case study
were very detailed. There was no crucial issue decisive of the whole
case study. It is a matter of assessing the total effect of the
submissions. In all the circumstances, the submissions of counsel
assisting preferring Mr Holmes’s version are to be accepted.
Conclusions
208. It is more probable than not that Ms Charlson gave Mr Holmes an
instruction in February 2014 to remove documents from wage claim
files that Mr Slevin had asked for. The instruction was to remove, and
not copy for Mr Slevin, documents that Mr Holmes considered to be
incriminating or unpalatable.
209. The purpose of this instruction was to ensure that Mr Slevin and the
National Office were given a sanitised version of the Branch’s records.
The purpose was to reduce the prospect of Mr Slevin finding materials
that might be harmful to the Branch and its officers and employees.
210. Between 100 and 150 documents were removed from the wage claim
files on this basis. Ms Charlson has not been prepared to admit this, or
say what has become of these documents. Nor has any other person
from the CFMEU, except Mr Holmes.
151 David Holmes, 2/10/14, T:499.44-500.24.
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211. It is, therefore, not possible to know what has become of the removed
documents, and whether any of them were, in fact, incriminating, or
otherwise evidenced conduct by officers of the CFMEU falling within
the Terms of Reference.
212. In these circumstances, and particularly given that the wage claim files
concerned Active Labour and Elite Scaffolding, it is not possible to be
confident that all of the documents that were held by the Branch in
mid-February 2014 that bear upon the nature and extent of the
relationship between the CFMEU and its officers with these companies
(and with Mr Alex and his associates more generally) have been
provided to this Commission.
213. This can only be determined when the Branch, through Ms Charlson or
otherwise, identifies the documents that were removed.
1395
1396
UNIVERSAL CRANES
CHAPTER 8.7
Subject Paragraph
A - SUMMARY 1
B - RELEVANT FACTS 5
Smithbridge and Universal Cranes: the background 5
Purchase of Universal Cranes in 2002 13
BERT and CIPQ 19
Discussions following expiry of 2003 EBA term 24
Introduction of workplace agreement in 2006 27
2008 Collective Agreement 35
2012 non-union EBA 39
CFMEU campaign in response 44
Indooroopilly project 48
Attacks in July 2012 61
Threats by Mr Close to Mr Smith in July 2012 67
Attacks in August 2012 70
1397
Subject Paragraph
August 2012 meeting with Mr Ravbar and others 72
Mr Smith bows to union pressure 74
Mr Close’s rejection of the proposal 81
Request and further threat in September 2012 94
Further attacks in October 2012 99
Rejected offer to sign CFMEU pattern agreement 110
Threats in July 2013 115
Attacks concerning Smithbridge 126
Dealing with the credit of Mr Ravbar and his denials 153
Rejection of CFMEU’s theories as to customers’ behaviour 177
The CFMEU’s submissions 202
C - CONCLUSIONS 206
What does Australian law have to say about the CFMEU’s behaviour? 206
Extortion 206
Count 1 for Mr Ravbar - 8 July 2013 208
Count 2 for Mr Ravbar - 28 February 2014 215
Count 1 for Mr Close - July 2012 223
Count 2 for Mr Close - 14 August 2012 229
Count 3 for Mr Close - 3 September 2012 235
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Subject Paragraph
Breach of s 359 of the Criminal Code Act 1899 (Qld) 244
Breach of s 343 of the Fair Work Act 2009 (Cth) 249
Breach of s 340 of the Fair Work Act 2009 (Cth) 259
Breach of s 228 of the Fair Work Act 2009 (Cth) 271
Breach of s 45E of the Competition and Consumer Act 2010 (Cth) 272
Breach of s 45D of the Competition and Consumer Act 2010 (Cth) 281
A - SUMMARY
1. This chapter concerns the conduct of officers of the Queensland
Branch of the Construction and General Division of the CFMEU
towards companies in a group headed by the Smithbridge Group Pty
Ltd. A reference to Smithbridge Group is a reference to one or more
companies in this group.
2. The officers in question are Mr Michael Ravbar (Branch Secretary)
and organisers Mr Peter Close, Mr Shane Treadaway, Mr Andrew
Sutherland, Mr Michael Robinson and Mr Ben Loakes.
3. Counsel assisting’s submissions to the following effect are accepted.
1399
4. Mr Ravbar and the others pursued a campaign against Smithbridge
Group in order to force companies in that group to enter into enterprise
agreements with the CFMEU on terms which required the companies
to make payments to BERT, BEWT and CIPQ. The campaign
involved CFMEU officials (i) dictating to customers of the
Smithbridge Group that Smithbridge Group be removed from their
sites, and otherwise applying pressure designed to turn those customers
away from Smithbridge Group, and (ii) threatening to kill off
Smithbridge Group through such action unless they signed the union’s
form of enterprise agreement and arranged for all employees to
become union members. In the course of that conduct Mr Ravbar and
Mr Close engaged in a deliberate and protracted campaign of industrial
blackmail and extortion. By so acting, Mr Ravbar and Mr Close may
have committed offences under s 359 and s 415 of the Criminal Code
1899 (Qld). In addition, Mr Ravbar and the other CFMEU officers
referred to above may have contravened s 228, 340 and 343 of the Fair
Work Act 2009 (Cth) and s 45D and s 45E of the Competition and
Consumer Act 2010 (Cth).
B - RELEVANT FACTS
Smithbridge and Universal Cranes: the background
5. Smithbridge Group is managed by Albert Smith. It is owned by the
trustees of his family trust. The company owns shares in various other
corporations that operate in the mobile crane and construction
industries.
1400
6. In relation to the crane businesses, the largest company is Universal
Cranes Pty Ltd (Universal Cranes). It is a wholly owned subsidiary
of Smithbridge Group. The other crane companies in the group are
part-owned by Smithbridge Group and part-owned by the local
managers of those companies. They include Gold Coast Cranes Pty
Ltd, Universal Cranes (Townsville) Pty Ltd, Universal Cranes
(Sunshine Coast) Pty Ltd, Universal Cranes Ballina Pty Ltd and
Universal Mini Cranes Pty Ltd.
7. The construction work of the Smithbridge Group is carried on by
Smithbridge Australia Pty Ltd (Smithbridge).
8. Mr Smith is the managing director of Smithbridge. He is the sole
director of Universal Cranes. He has over 30 years’ experience in
owning and operating businesses in the construction and crane
industries in Australia, New Zealand, Guam, Papua New Guinea and
New Caledonia. His long career in these industries has been
successful.
9. Since 2007 Mr Smith has sat on the National Board of the Crane
Industry Council of Australia, the national peak body for the industry.
He was President of the Queensland branch of that organisation from
2007 to 2011.
10. Mr Smith’s experience in the industry extends to owning and operating
a training school in Queensland. In this regard, he established Lifting
Skills Pty Ltd in 2004 to provide training for crane drivers. That
company is a registered training organisation.
1401
11. Mr Smith was raised and educated in New Zealand. He obtained a
Bachelor of Engineering degree from the University of Canterbury in
1980. After that he moved to Brisbane and worked as a design
engineer on the Gateway Bridge and on the Dalrymple Coal Terminal.
He then worked as an employee of a small construction company. He
started his own construction business in 1982. In the mid 1980’s his
father wished to retire from his crane and construction business in New
Zealand. Mr Smith returned to New Zealand and commenced
managing that business in his father’s place.1
12. At that point the New Zealand business had about 50 employees. Mr
Smith built up the business, and within 3 or 4 years it had more than
100 employees. By early 2001 that number had doubled again. Mr
Smith, despite his relocation to Australia in about April 2002,
continues to operate the crane rental division of that business.2
Purchase of Universal Cranes in 2002
13. Not long after moving to Australia in about April 2002, Mr Smith
purchased the Universal Cranes business from its then owners. By that
time - 2003 - the Universal Cranes business had been in operation for
about 10 years. Mr Smith’s purchase of that business was completed
on 1 October 2003.3
14. Following this purchase, Mr Smith added some additional employees
of his own to the employees of the business. The business has
1 Albert Smith, 4/8/14, T:22.6-24.1. 2 Albert Smith, 4/8/14, T:23.41-44. 3
Albert Smith, witness statement, 4/8/14, para 16.
1402
operated continually in the industry, and the number of workers
employed by it has grown over time. There are now over 300
employees in the various Universal Cranes companies. Universal
Cranes itself has become one of the largest operators in the Queensland
crane market.4
15. Mr Smith and his companies are not ‘fly by night’ operators. They are
genuine and established players in the industry. They have provided
substantial long term employment for a large number of workers.
16. Mr Smith’s unchallenged evidence is that he has taken regular steps to
ensure that employees understand their rights.5 He provides them with
copies of, and explains, proposed employment agreements. He
corresponds with them on a reasonably regular basis to ensure that they
are familiar with their rights. In addition, he organises a weekly
meeting, held every Monday morning, with all employees at every site.
The meeting typically starts as a safety meeting, and then turns to
address any matters concerning employment terms, workplace rights
and workloads.6
17. Mr Smith came to learn, after purchasing the business, that the
previous owners had orally agreed with the CFMEU that the company
would enter into an enterprise agreement with the union and the
company’s employees.7
4 Albert Smith, witness statement, 4/8/14, para 23. 5 Albert Smith, 4/8/14, T:24.42-25.39. 6
Albert Smith, 4/8/14, T:24.42-25.39. 7 Albert Smith, witness statement, 4/8/14, para 19.
1403
18. As Mr Smith was new to the Australian industry and had no experience
with the way in which the CFMEU operated, he did not oppose the
company entering into the EBA. Therefore, in early 2004 Universal
Cranes entered into an EBA with the CFMEU to cover the period from
8 February 2003 to 31 October 2005 (2003 EBA).8
BERT and CIPQ
19. The 2003 EBA obliged Universal Cranes to contribute set amounts per
week per employee into a redundancy scheme called the Building
Employees Redundancy Trust operated by B.E.R.T Pty Ltd (BERT).9
It also contained a term which gave Universal Cranes the option of
either paying particular forms of sick leave or alternatively paying a
premium to CIPQ (an operator of a sick leave and income protection
insurance business) for each employee.10
20. Mr Smith was not familiar with either BERT or CIPQ at the time the
2003 EBA was executed. In due course, however, he came to
understand more about their workings. He formed the view that it was
not in the interests of his business and its workers for payments to be
made to BERT and CIPQ.11
21. Mr Smith undertook some research into the schemes. As part of that
process, he contacted Bill Wallace, the General Manager of BERT.
They met in late 2005 or early 2006. As a result of those discussions
8 Albert Smith, witness statement, 4/8/14, para 20. 9 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 1, p 37. 10
Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 1, p 37. 11 Albert Smith, witness statement, 4/8/14, paras 21, 25, 28.
1404
and his own research and consideration, Mr Smith decided that he did
not want to make contributions to the BERT redundancy scheme or
pay premiums to CIPQ.12
22. Amongst other things, Mr Smith did not approve of the fact that the
interest earned on the BERT members’ redundancy funds was not
added to the members’ accounts. Instead, the earnings of the fund were
taxed at the highest rate in the hands of the fund manager. Much of
what was left over was distributed to the CFMEU to undertake
training. A significant portion of the money so distributed was spent
on administration costs rather than actual training activity.13 All of his
observations were accurate.14
23. He calculated that it was much more cost effective for an employer of
his size to offer a self-funded benefit than to contribute to CIPQ. He
developed an in-house self-funded two year extended sick leave
entitlement scheme. He worked out that he could offer the same
benefits to his employees at a lower cost to the company. His evidence
was: ‘I did my own calculations. All I was trying to do was establish
value for money from the [CIPQ] fund and what I understood to be the
real cost of the benefit and the fee to pay via that, via the [CIPQ] fund,
it was obvious to me it was more economically viable to self insure’.15
12 Albert Smith, witness statement, 4/8/14, paras 25-28. 13 Albert Smith, witness statement, 4/8/14, paras 27-28. 14
See Chapter 5.2 concerning BERT, BEWT, CIPQ and QCTF. 15 Albert Smith, 4/8/14, T:55.41-46; Albert Smith, witness statement, 4/8/14, para 30.
1405
Discussions following expiry of 2003 EBA term
24. When the 2003 EBA expired, he had decided that he did not want
either a BERT clause or a CIPQ clause.
25. Towards the end of the express term of the 2003 EBA, Mr Smith held
various discussions with representatives of the CFMEU about the
possibility of entering into a new EBA with the CFMEU on terms that
did not include these provisions. The union however, would not agree.
26. During this process Mr Smith also spoke with his workers about his
attitude towards BERT and CIPQ, and the alternative self-funded
schemes he wished to put in place. On one occasion he organised an
early morning breakfast meeting that was attended by all of the
workers. He invited representatives from the CFMEU to attend so that
they could present their alternative position to employees. During that
meeting the union representatives became vocal and derogatory
towards Mr Smith. He thought the meeting was degenerating. As a
result, he left the meeting and allowed the union representatives to
speak to his employees about the advantages of having a BERT and
CIPQ clause in their employment terms. On a separate occasion Mr
Smith arranged for someone from the BERT fund to come and speak to
employees.16
Introduction of workplace agreement in 2006
27. Following these information sessions, Mr Smith decided to introduce a
workplace agreement to Universal Cranes employees. That workplace
16 Albert Smith, 4/8/14, T:26.3-29.36.
1406
agreement matched the 2003 EBA terms, but did not include BERT or
CIPQ clauses. Instead it provided for redundancy and sick leave to be
self-funded within the business. The redundancy obligation sat as a
liability on the balance sheet of Universal Cranes. Extended sick leave
was treated as a cost at the time it was incurred. The workplace
agreement also included an innovative shiftwork allowance, greater
RDO flexibility, and a different employee classification system from
that set out in the form of agreement proposed by the CFMEU.17
28. The differences between the CFMEU form of EBA and the workplace
agreement prepared by Universal Cranes were drawn to the attention of
the company’s employees. As noted above, there had been a series of
meetings attended by Mr Smith, CFMEU representatives and a BERT
fund representative for this very purpose.
29. During these meetings and discussions, one of the key points of
difference identified to the employees was the fact that redundancy
payments made into the BERT scheme would be preserved in the
hands of BERT and remain available to employees in the event that
Universal Cranes was wound up in insolvency. By way of contrast,
employees were made aware that this same level of security would not
be available through the redundancy scheme proposed by Universal
Cranes.18
30. Mr Smith offered personal guarantees to his employees in respect of
redundancy entitlements, but the employees were not particularly
interested in taking him up on that offer. He then discovered that the
17 Albert Smith, witness statement, 4/8/14, para 31. 18 Albert Smith, 4/8/14, T:39.10-41.40.
1407
Federal Government provided a guarantee for employees in respect of,
amongst other things, their redundancy entitlements if their employer
was wound up. The employees’ position was therefore protected, even
under the Universal Cranes scheme.19
31. There was debate amongst the employees and then with Universal
Cranes, the CFMEU and others about the various advantages and
disadvantages of the BERT scheme on the one hand and the Universal
Cranes scheme on the other.20
32. It is to be remembered that Mr Smith and Universal Cranes were long
term players in the industry. Mr Smith was not a phoenix operator. He
had a successful track record. For its part, Universal Cranes was an
asset rich business with a large fleet of cranes and other equipment,
and had a balance sheet capable of supporting the redundancy and sick
leave scheme implemented by Mr Smith.21 The business did carry
debt, but was only geared to about 50%.22
33. Having drafted the workplace agreement, Mr Smith then informed
workers of its existence and that they would have the choice of
working under its terms or instead remaining employed under the
terms of the expired 2003 EBA. New employees would be employed
on the terms set out in the workplace agreement.
19 Albert Smith, 4/8/14, T:39.10-41.40. 20 Albert Smith, 4/8/14, T:41.6-29. 21
Albert Smith, 4/8/14, T:40.1-15. 22 Albert Smith, 4/8/14, T:45.7-28.
1408
34. At the time of the introduction of the workplace agreement there were
about 100 employees in the Universal Cranes workforce. Of those,
approximately 20 moved across to the workplace agreement
immediately, on the day it first came available.23 Over time, almost all
of the balance of the existing employees elected to transfer away from
the 2003 EBA terms and take up the workplace agreement conditions.
By the end of 2007 there were only about 6 or 7 employees who
remained employed under the terms of the 2003 EBA.24
2008 Collective Agreement
35. After 2007, an alternative industrial relations regime was introduced
under which an employer could enter into a collective agreement with
its employees. As a result, Mr Smith took steps to introduce a
collective agreement at Universal Cranes.
36. Mr Smith made the CFMEU aware that Universal Cranes wished to
introduce a collective agreement and embark upon a negotiation
process with its employees. The CFMEU and the AWU each gave
notice of their desire to negotiate on behalf of employees, and the
employees were notified of this fact. No employee indicated that he or
she wished for the CFMEU to negotiate the terms of the collective
agreement on their behalf.25
37. As with the earlier workplace agreement, prior to the employees
deciding whether or not to accept the terms being offered by Universal
23 Albert Smith, 4/8/14, T:26.41-27.7. 24 Albert Smith, 4/8/14, T:27.9-13. 25
Albert Smith, witness statement, 4/8/14, paras 33-34.
1409
Cranes in 2008, there was debate involving the employees, Mr Smith
and CFMEU representatives about the advantages and disadvantages
of the form of agreement being proposed by Universal Cranes. The
debate included the differences between the BERT and CIPQ schemes
and the self-funded redundancy and sick leave schemes of Universal
Cranes.26
38. Universal Cranes proceeded to enter into a collective agreement with
its employees. That agreement was approved by the Australian
Government Workplace Authority in about July 2008 (2008 Collective
Agreement).27 The 2008 Collective Agreement remained in force for
a period of about 4 years.
2012 non-union EBA
39. At the expiry of the term of the 2008 Collective Agreement, and in
about mid-2012, Universal Cranes sought to negotiate a new form of
enterprise agreement with its employees. A copy of the draft form of
agreement was provided to the CFMEU. Mr Smith invited the
CFMEU to join in the discussion and talk to employees.28
40. Invitations of this kind were nothing new. Since 2004, Mr Smith had
always welcomed the CFMEU to the Universal Cranes premises. He
permitted them to talk to Universal Cranes employees, one on one, in
company time. He invited union officials to call meetings with the
workers using the company’s facilities. Union representatives also had
26 Albert Smith, 4/8/14, T:41.6-40. 27 Albert Smith, witness statement, 4/8/14, para 35. 28
Albert Smith, witness statement, 4/8/14, para 39.
1410
an open invitation to attend the company’s Monday morning weekly
team meetings.29
41. The workers at Universal Cranes did not elect for the CFMEU or any
other union to act on their behalf in the negotiation of the new
enterprise agreement. The employees dealt directly with Universal
Cranes. The result was a non-union enterprise agreement voted in by a
majority of the employees, and approved by Fair Work Australia in
August 2012 (2012 EBA).30
42. As with the workplace agreement in 2006 and the 2008 Collective
Agreement, the 2012 EBA followed discussion and debate between the
employees of Universal Cranes, Mr Smith and CFMEU
representatives about the differences between the BERT and CIPQ
schemes and the self-funded redundancy and sick leave schemes
offered by Universal Cranes.31
43. The 2012 EBA did not contain a BERT, or CIPQ clause. Instead, like
the 2008 Collective Agreement and the workplace agreement that
preceded it, the 2012 EBA contained different provisions regulating
matters such as redundancy, sick leave and income protection.
29 Albert Smith, witness statement, 4/8/14, para 41. 30 Albert Smith, witness statement, 4/8/14, para 43; Annexure AS-1 Tab 4. 31
Albert Smith, 4/8/14, T:41.6-40.
1411
CFMEU campaign in response
44. At around the time the workers of Universal Cranes voted in the 2012
EBA which made no reference to BERT or CIPQ, the CFMEU
retaliated by applying pressure to Universal Cranes in the marketplace.
45. There is a factual contest as to the nature and extent of the CFMEU’s
response. One particular question is: did the CFMEU’s campaign
include seeking to apply pressure to customers of Universal Cranes and
other companies in the group so as to have them removed from work
sites?
46. There are some relevant background matters. The CFMEU wanted
Universal Cranes to enter into an EBA with the CFMEU on terms that
included the BERT clause, the CIPQ clause, and a further clause that
required the employer to make payments into a welfare fund managed
by B.E.W.T Pty Ltd (BEWT). Under the BERT, BEWT and CIPQ
schemes, substantial monies flowed out of those schemes and into the
CFMEU for various purposes. The CFMEU thus had a motive to take
action that would lead to Universal Cranes signing an EBA obliging it
to make payments to BERT, BEWT and CIPQ. In and after 2012, the
CFMEU deliberately pursued a ‘campaign’ to have Universal Cranes
and the companies in the group enter into the CFMEU form of EBA in
place of the 2012 EBA the employees had voted for.32 The creation of
the 2012 EBA which did not contain the BERT, BEWT and CIPQ
clauses that the CFMEU had been pressing on Universal Cranes was
contemporaneous with the commencement of actions on work sites
32 Michael Ravbar, witness statement, 6/8/14, para 47.
1412
which led to Universal Cranes being removed from those sites. There
is much contemporaneous material making repeated reference to the
fact and nature of a CFMEU ‘ban’ or ‘boycott’ on Universal Cranes.
This includes a series of direct emails of complaint to CFMEU
officers. There is not a single written record through which any of
those CFMEU officers denied the existence of the ban or boycott
complained of. The CFMEU criticized these as lengthy, discursive and
self-serving, and submitted that its failure to reply to them was not an
acceptance of their contents.33 Unfortunately for the CFMEU, its
silence must be treated in the same way as the silence of any
commercial or industrial participant in a chain of correspondence.
47. The ‘campaign’ the CFMEU waged against Universal Cranes involved
two steps. One was the officers of the CFMEU threatening to apply
pressure to customers of Universal Cranes to stop dealing with
Universal Cranes unless and until the Union’s demands that Universal
Cranes and others enter into the Union’s form of EBA were satisfied.
The other involved the CFMEU acting on those threats when its
demands were not satisfied by entering work sites and shutting down
the operations of Universal Cranes or Smithbridge on those sites.
Indooroopilly project
48. In the period leading up to the creation of the 2012 EBA, Gold Coast
Cranes (one of the companies in the Universal Cranes group)
undertook work at the Indooroopilly Shopping Centre site. The builder
on the site was Multiplex. Multiplex had sub-contracted various works
33 CFMEU submissions, 14/11/14, Pt 8.7, para 39.
1413
to Bastemeyers Earth Moving, and in turn Bastemeyers had engaged
Gold Coast Cranes.
49. Mr Smith was only one of the three directors of Gold Coast Cranes.
The other directors were Mr Paul McCormack and Mr Ian Bourner.
50. Mr McCormack and Mr Bourner met with Mr Shane Treadaway, a
CFMEU organiser, at the CFMEU’s office in Bowen Hills on 4 May
2012. At that meeting, Mr Treadaway agreed that Gold Coast Cranes
would not be able to sign the union form of EBA because the rates in
that form of agreement would put the company at a disadvantage in the
Gold Coast market. He indicated that a different form of EBA, in
terms that would mirror the EBA of another crane company (Metro
Lift Cranes) would be acceptable to the CFMEU. That form of
agreement would not make provision for BERT, BEWT or CIPQ.34
51. Not long after that meeting, and on 22 May 2012, Mr Bourner received
a telephone call from an operator of a crane on hire from Gold Coast
Cranes to Bastemeyers at the Indooroopilly site. He was told that the
union representative on site had stopped the crane, and had said that
they were not allowed to continue on site because the company did not
have a union EBA. Mr Bastemeyer received a call to the same effect.
He was told that the union officials who had taken this action included
Shane (Treadaway).35
34 Ian Bourner, witness statement, 3/9/14, paras 14-15; Paul McCormack, witness statement, 3/9/14, para 20. 35
Ian Bourner, witness statement, 3/9/14, paras 17-18; John Bastemeyer, witness statement, 22/9/14, para 19.
1414
52. Mr Bastemeyer’s company had prior experience of union intimidation
on the site. Mr Treadaway and Mr Mike Davies had met him and Ms
Julie McKee (a Bastemeyer employee) to discuss signing a CFMEU
form of EBA. Ms McKee gave the following evidence about what Mr
Mike Davies, a BLF organiser, said:36
In response to our questions Mike told us how wonderful the unions are and how they could benefit the business. I was angry that they were demanding Bastemeyer sign the Union Agreement during the meeting so I responded to Mike “yeah right, what a joke”.
Mike then said to me: “You think it’s fucken funny, if you don’t fucken sign this I guarantee you won’t be working on the Indooroopilly shopping centre site”.
53. Ms McKee’s evidence was that she was ‘shocked and outraged at the
bullying, intimidation and threats by the unions … to sign the Union
Agreement during the meeting’.37 In her oral evidence Ms McKee said
she had a clear recollection of the words used. She then gave the
following evidence:38
Q. You have been at many business meetings where people have talked in those terms?
A. No.
Q. Do you regard that as unusual?
A. I was quite offended.
Q. And it was directed towards you, in the sense that it was in response to something you had just said?
A. That’s correct, sir.
36 Julie McKee, witness statement, 3/9/14, paras 11-12. 37 Julie McKee, witness statement, 3/9/14, para 16. 38
Julie McKee, 3/9/13, T:569.17-31, 37-45.
1415
Q. How did you feel when that was said?
A. Horrified and, to be totally honest, I turned to the side - (witness demonstrates) - and just looked the other way.
…
Q. I am asking you this because it has been put, I think, that those statements were not said …. In any event, as you sit here today, you have a very clear recollection do you?
A. I have never been spoken to so horribly by someone I do not know and I felt this - (witness demonstrates) - big. It was - the man leaned across. The way we were sitting at the table, he leaned across and intimidated me completely.
54. The second demonstration of the witness involved her placing the end
of her thumb a very small distance away from the end of her index
finger. Ms McKee was a very impressive witness. Her evidence was
completely credible. Beyond one question formally complying with
the rule in Browne v Dunn, counsel for the CFMEU made no attempt
to shake Ms McKee in cross-examination.39 That was the product of a
wise and skilful exercise of professional judgment. The CFMEU did
not provide a statement from either Mr Davies or Mr Treadaway
contradicting the evidence of Ms McKee. It only provided a statement
from Mr Doug Spinks, who was not present during the whole of the
meeting and agreed that there may well have been things said that day
that he did not hear.40 Ms McKee’s evidence is to be accepted
independently of Mr Bastemeyer’s evidence to the same effect.41 It is
therefore unnecessary to resolve a conflict between Mr Bastemeyer and
another witness going only to credit, and which, since
39 Julie McKee, 3/9/14, T:570.7-11. 40 Douglas Spinks, 4/9/14, T:709.22-29. 41
John Bastemeyer, witness statement, 22/9/14, para 13.
1416
Mr Bastemeyer’s credit is immaterial, is outside the Terms of
Reference.42
55. Returning to the Gold Coast Cranes incident on 22 May 2012, when
Mr Bastemeyer received the call that a union representative had shut
down Gold Coast Cranes on site, he went down to the site and heard a
union representative yelling and screaming, saying ‘fucking stop you
cunts, you’re not working, you’re not allowed on site, you don’t have
an EBA so fuck off’ and ‘they have been banned from all sites in
Brisbane and you will be next’. They said to Mr Bastemeyer: ‘You
can’t use Gold Coast Cranes, they haven’t signed an EBA. You need
to use one of these companies [handing a list across]…Read your EBA
you dickhead’.43 This evidence was not contradicted. It was not the
subject of cross-examination. There is no reason not to accept it.
56. Mr Bourner received a call from Mr Bastemeyer at this time and was
asked what the situation was with the company’s EBA. Mr Bourner
said that the company was in discussions with the CFMEU and the
company was waiting for a document. That was a reference to the 4
May meeting referred to above and the fact that the CFMEU had not
yet sent the Metro Lift form of EBA to Gold Coast Cranes. Mr
Bastemeyer then handed his phone to Mr Treadaway, and Mr
Treadaway spoke to Mr Bourner. Mr Bourner reminded Mr
Treadaway about the 4 May meeting. Mr Treadaway said he had to
talk to Mr Ravbar and that the crane could not restart.44
42 Mark O’Brien, witness statement, 4/9/14, para 5. 43 John Bastemeyer, witness statement, 22/9/14, paras 20, 22. 44
Ian Bourner, witness statement, 3/9/14, paras 21-23.
1417
57. The attack on Universal Cranes was a co-ordinated one. Mr
Treadaway’s conduct on the day is evidence that he was not acting
alone, and was taking direction from Mr Ravbar. The telephone
records indicate that Mr Close, a senior CFMEU organiser who worked
closely with Mr Ravbar on this matter, had various telephone
conversations with Mr Treadaway and with the CFMEU delegate on
site (‘Scoob’) on the day of the incident.
58. On 1 June 2012 Mr McCormack, a director of Gold Coast Cranes, sent
Mr Smith an email.45 In that email Mr McCormack said that Gold
Coast Cranes had been removed from the Indooroopilly site. He also
reported that there had been discussions with the union in the context
of that removal, during which Mr Ravbar had indicated that Gold
Coast Cranes had to sign a full CFMEU form of enterprise agreement.
59. Mr Smith obtained further information about this matter in an email on
20 June 2012 from Ian Bourner.46
60. As Gold Coast Cranes was no longer permitted on site by the CFMEU,
it had to cross-hire the job to Metro Lift in order to meet the contract it
had with Bastemeyers.47 Gold Coast Cranes lost about 3 months of
work as a result.48
45 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 5. 46 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 6. 47
Ian Bourner, witness statement, 3/9/14, para 24. 48 Paul McCormack, witness statement, 3/9/14, para 25.
1418
Attacks in July 2012
61. On 26 July 2012 Mr Smith received an email from a Universal Cranes
employee called Adam Courtney.49 In that email Mr Courtney
recounted a few examples of some of the union problems Universal
Cranes had experienced on sites.
62. One site referred to by Mr Courtney was at Longland Street, Newstead,
where Universal Cranes was performing work for FKP Constructions.
Mr Courtney reported that he had received a telephone call from Peter
Scott (the crane operator). Mr Scott said that the site foreman Scott
Houston had instructed him to ‘boom the crane right down’ because
they were getting asked questions by union representatives about the
name on the side of the crane. The email indicated that subsequently,
Matt Parker (project manager) had told Mr Courtney that the crane had
been off-hired and should be demobilised and taken off site.
63. Another project referred to by Mr Courtney in his email was the
Transcity JV project, where a crane was on ‘dry hire’ to Bauer
Foundations. The term ‘dry hire’ signifies that a crane is being hired
out as a piece of machinery alone, and without any operating staff.
Bauer employees reported to Mr Courtney that Transcity had instructed
that all work stop because the crane belonging to Universal Cranes had
to be off-hired. The Bauer employees reported that the rumour was
that the unions were making it too hard for Transcity because of
Universal Cranes’ name being on the machinery.
49 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 7.
1419
64. A third example given by Mr Courtney in his email concerned cranes
that were on hire to Brady Marine and Civil for the Port Connect
project. Mr Courtney reported that Paul Bolger had indicated that the
union representative on site on 24 July 2012 had made it quite difficult
for Mr Bolger because a crane from Universal Cranes was being used.
65. The problems on site at the Transcity project were also raised by Mr
Schalck, the General Manager of Universal Cranes, in an email he sent
to Transcity JV on 26 July 2012.50 He reported that he had been
advised by supervisors working for Transcity and Bauer that Universal
Cranes were no longer to be used as the CFMEU had put a ban on the
use of Universal Cranes. He recorded that the ban had even resulted in
cranes on ‘dry hire’ being demobilised from project sites. He referred
to the last demobilisation being on the Victoria Park Road project, a
‘dry hire’ job, where Bauer employees had been stopped in the middle
of a lift. Mr Schalck had said Universal Cranes had received very clear
verbal communication that this was due to the union ban on Universal
Cranes.
66. That email of 26 July 2012 was sent by Mr Smith to the Fair Work
Building Commission. Through the email Mr Smith also informed Mr
Hogan that the CFMEU had banned Universal Cranes from the
Transcity site and that the union was also pushing those on the Port
Connect project to ban Universal Cranes.
50 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 8.
1420
Threats by Mr Close to Mr Smith in July 2012
67. In July 2012 Mr Smith had a conversation with Mr Close, a senior
CFMEU organiser. In that conversation Mr Close advised Mr Smith
that he understood Mr Smith was ‘nearly on his knees’ and that Mr
Close would keep his campaign against Universal Cranes up until it
signed an agreement with the CFMEU on Mr Close’s terms. Mr Close
admitted that his actions were ‘illegal’, but stated that the CFMEU
would continue to do ‘what they need to do’ in order to make
Universal Cranes support the union and the BERT Fund.
68. Mr Smith recorded this conversation in an email dated 26 July 2012.51
He confirmed in his evidence that it accurately recorded what Mr Close
had said to him at about this time.52
69. Mr Close denied having spoken to Mr Smith in these terms. Those
denials cannot be accepted. During his examination Mr Close
demonstrated on a number of occasions that he was not a witness of
truth, and was prepared to make wild statements about Mr Smith that
could not be justified. He denied matters that were obvious on the
documents. He said on his oath that Mr Smith was ‘demented’.53 He
repeated that absurd allegation when given the opportunity to retract
it.54 In a rare moment of candour Mr Close made an admission that
was destructive of his credit - he accepted that he was prepared to say
anything he liked, regardless of whether or not it was true, at least in
51 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 9. 52 Albert Smith, 4/8/14, T:30.19-21. 53
Peter Close, 4/9/14, T:647.28-30. 54 Peter Close, 4/9/14, T:647.32-34, T:648.8-10.
1421
regard to ‘the questions that are put to me and Mr Smith’s statement’.
He accepted this proposition four times.55
Attacks in August 2012
70. The contemporaneous email records demonstrate that the position
deteriorated further in August 2012.
71. Westfield Design and Construction was carrying out works at the
Westfield Carindale site. It had sub-contracted some of those works to
a landscaper called Scape Shapes, who intended to use Universal
Cranes on the job. However on 1 August 2012 Mr Noumann sent an
email to Universal Cranes indicating that Westfield Design and
Construction had advised that Scape Shapes was not permitted to use
Universal Cranes.56 Mr Noumann said that he had asked the Westfield
staff why that was so, and the Westfield staff would not give him an
answer. Had there been a legitimate reason for the position adopted by
Westfield, an explanation would have been forthcoming.
August 2012 meeting with Mr Ravbar and others
72. Against this background, in August 2012 Mr Smith attended a meeting
at the Bowen Hills office of the CFMEU with Mr Ravbar, Mr Ingham,
Mr Sutherland and Mr Close.57
55 Peter Close, 4/9/14, T:648.12-31. 56 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 12. 57
Albert Smith, witness statement, 4/8/14, para 69.
1422
73. At that meeting Mr Ravbar said he wanted Universal Cranes to sign up
to the CFMEU pattern agreement. Mr Ravbar asserted that Mr Smith
had been ‘playing games’ for long enough, and it was time for him to
stop. Mr Ravbar also stated that the CFMEU would make it very hard
for Universal Cranes to operate if it did not come across to the CFMEU
pattern agreement.58
Mr Smith bows to union pressure
74. In the face of the large number of reports - all to the effect that officers
of the CFMEU had pressured Universal Cranes’ customers into
removing Universal Cranes from worksites - and having heard Mr
Close’s and Mr Ravbar’s threats to keep the CFMEU campaign against
Universal Cranes up until the company signed a CFMEU form of
EBA, Mr Smith bowed to the pressure and agreed to accept the
principal clauses the CFMEU had been insisting on - in particular the
BERT clause.
75. To this end, Mr Smith sent Mr Close an email on 14 August 2012.59
76. In that email Mr Smith referred to ‘our recent conversations regarding
the CFMEU boycott of Universal Cranes’. Mr Smith complained that
that action was having significant effect on the Universal Cranes
business and would result in the company being forced to terminate
employees in the near future. Mr Smith confirmed that ‘you have
previously indicated that you would lift the ban on us if we force our
employees to join the BERT Fund and the BEWT Fund.’
58 Albert Smith, witness statement, 4/8/14, paras 69-72. 59 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 13.
1423
77. In this and various subsequent emails Mr Smith used the expression
‘ban’. That was an appropriate and convenient short-hand description
of how the CFMEU was treating (and threatening to treat) Universal
Cranes. As Mr Smith stated in his evidence, the CFMEU officials with
whom he dealt took care to avoid using this precise language in the
discussions they had, and probably did not use the word ‘ban’.60
78. The threat was, in substance in the nature of a ‘ban’, even though this
word might not have been stated. If they were not using the word, they
were doing the thing. That is very clear from the way in which the
CFMEU had conducted itself and continued to conduct itself on sites
where Universal Cranes was to be found. It is also clear from the
actual language that Mr Ravbar was recorded as using through this
period, which as later described, includes phraseology such as
‘kicking’ companies off sites and ‘killing’ companies, and statements
that the CFMEU ‘had its ways’ and that Mr Smith would ‘feel the
effects of the applied pressure’.61
79. Mr Smith indicated that he was prepared to put to the vote of his
employees an amended form of EBA providing for payments to BERT
and BEWT. He added that employees were well aware of the fact that
Universal Cranes would be forced to reduce its workforce significantly
if the union would not lift its ‘ban’ and that, as such, he was confident
that the employees would support the amended agreement.
60 Albert Smith, 4/8/2014, T:50.31-51.6. 61 See Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tabs 34, 51; Albert Smith, 4/8/14, T:33.26-35.47.
1424
80. He asked Mr Close to advise whether ‘the CFMEU will lift its ban on
Universal Cranes if we proceed with this modified agreement’.62 He
also indicated that if there were any further changes the CFMEU
required to get the issue resolved, Mr Close should advise him so that
Universal Cranes could consider the matter further.
Mr Close’s rejection of the proposal
81. Mr Close responded to Mr Smith’s request that the CFMEU lift its ban
if Universal Cranes proceeded with the proposed modified agreement
by saying that the union ‘will also want you to fix the membership if
we are to move forward. After all you killed the membership off’.63
82. The substance of Mr Close’s response, then, was not to deny the ban
referred to in Mr Smith’s email. It was to indicate that the ban would
continue unless Universal Cranes not only signed a form of EBA
acceptable to the union, but also ‘fixed the membership’. Mr Close was
adding to the list of demands that would have to be satisfied before the
ban could be lifted.
83. Mr Smith’s response to Mr Close’s aggressive riposte was to suggest a
side deal where he would guarantee either a number of members or a
percentage of employees to have membership. He asked what
percentage or number the CFMEU would accept.64
62 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 13 (emphasis added). 63 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 13. 64
Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 14.
1425
84. Mr Close sent an email back stating that Mr Ravbar and he needed to
meet with Mr Smith to discuss and that he ‘would want all workers as
members like I used to have under the previous Universal regime’.65
85. Mr Smith answered saying that he could not get all employees to join
and suggested that a fair target be set. Mr Close’s response was ‘90% I
reckon that’s fair for me’. Mr Smith replied saying that he thought that
50% would be doable. Mr Close then stated again that they would
need to meet with Mr Ravbar. He asked how many workers would
become CFMEU members if 50% of the Universal Cranes’ workforce
joined the union.66
86. Mr Ravbar was aware of the interchanges. Through his email of 14
August 2012, Mr Smith was asking Mr Close to end the CFMEU
campaign against Universal Cranes. Mr Ravbar admitted that Mr
Close would come to him to get approval to end any ‘campaign’
against the company, and any decision in that matter would come ‘via’
him.67
87. It is probable that Mr Ravbar was made aware of Mr Smith’s request of
Mr Close, and approved Mr Close’s response. Mr Ravbar admitted
that it looked as though that had occurred.68
88. On 20 August 2012 Mr Smith wrote to Mr Close in relation to a
potential meeting between the two and Mr Ravbar. Mr Smith again
65 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 14. 66 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 14. 67
Michael Ravbar, 7/8/14, T:395.21-35. 68 Michael Ravbar, 7/8/14, T:402.4.
1426
asked Mr Close to advise prior to the anticipated discussion ‘what else
you require from Universal Cranes above my proposed agreement
changes to get the ban on us lifted’.69 Mr Close did not write back
denying there was any ban.
89. Later the same day Mr Smith sent a further email to Mr Close in
relation to making arrangements for a further discussion.70 Yet again
he noted that ‘our objective is to get you to lift the current CFMEU ban
on Universal Cranes, but to retain as much as possible of our current
agreement. Once we know exactly what you require we will either
modify the agreement to meet your needs, and put it to the vote with
our employees, or we will choose to accept the consequences of your
ban on Universal Cranes and not seek work on the sites that you
control’. Again, there was no response from Mr Close to suggest the
position was anything other than as Mr Smith had described.
90. The discussion planned between Mr Close and Mr Smith proceeded by
telephone on 20 August 2012. After that call Mr Smith sent Mr Close
an email to confirm various matters.71 As the email describes, during
the call Mr Close indicated that the union was only interested in
considering its own pattern agreement with some possible minor
adjustments, and that the draft modified agreement that Universal
Cranes had prepared (and which made provision for BERT and
BEWT) would not be good enough. Mr Smith stated in his email that
‘in the interests of getting the ban lifted on Universal Cranes and our
sister companies’ he had asked for a copy of the CFMEU pattern
69 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 15 (emphasis added). 70 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 16 (emphasis added). 71
Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 17.
1427
agreement to be prepared and marked up showing changes that
Universal Cranes had proposed. He added ‘please also advise if we
can get an interim lift of the Universal Cranes and Gold Coast Cranes
ban while we try to resolve this issue. It is causing significant
financial issues for our company and our employees and soon have
negative effects on us all here at Universal Cranes if you cannot give
us a break’.72
91. Mr Close did not write back denying the existence of the CFMEU ban.
He did not write back denying or challenging Mr Smith’s recount of
what the CFMEU had insisted upon.
92. On 21 August 2012 Mr Smith wrote to Bechtel indicating that he
wished to speak to them about industrial relations policies before
deciding on a strategy to deal with the dispute he was having with the
CFMEU.73 He stated that Universal Cranes was currently the target of
a CFMEU ban on many sites in the greater Brisbane area and the
company was deciding whether to stand up to the union and suffer the
resulting loss or whether it should simply bow to the union’s demands.
93. On 24 August 2012 Mr Smith wrote again to Mr Hogan of the FWBC
‘in relation to the CFMEU boycott on Universal Cranes’.74 He said it
was extremely unlikely that Universal Cranes would accept the union
demands and that he would call on the FWBC when the company got
to the wire.
72 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 17 (emphasis added). 73 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 21. 74
Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 19.
1428
Request and further threat in September 2012
94. The next correspondence of significance took place on 31 August
2012.75 On that date Mr Schalck of Universal Cranes wrote to Mr Jade
Ingham of the CFMEU. In that email Mr Schalck said that ‘We are
still very keen in doing a deal so that we can have this ban lifted’. He
set out various proposed terms for an EBA with the union. Again, the
proposed terms included Universal Cranes making payments to BERT,
the establishment of policies and procedures to encourage employees
to become union members and the direct payment of union
membership fees. Mr Schalck added ‘we simply cannot agree to the
100% employee membership with the CFMEU’. The email concluded
‘please confirm that you will lift the ban on Universal Cranes if we
continue on the Universal Cranes agreement with the change to
participate in the BERT fund and the union right of entry as per
above.’76
95. Mr Ingham did not write back to Mr Schalck denying the existence of a
union ban on Universal Cranes. He would have done so if the position
was not as Mr Schalck had described.
96. Mr Schalck’s email found its way to Mr Close who, on 3 September
2012, stated ‘Unless we have our 2 hour clause untouched NO DEAL.
Balls in your court. I was in Sydney on the weekend and had a look to
see if your cranes were at Bangaroo????’ (sic).77
75 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 20. 76 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 20. 77
Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 20.
1429
97. This email is revealing. First, the deal that Mr Schalck had proposed -
namely a lift of the union’s ban if Universal Cranes agreed to a
modified form of an EBA - was rejected. To use Mr Close’s language,
there was ‘no deal’. Mr Close did not suggest in any way in his
response that there was no ban. To the contrary, the tenor and language
of his email provides positive confirmation that a ban was in place. Mr
Close was threatening to advance the scope of the ban to include
Universal Cranes at the Barangaroo site. This is how Mr Smith took
the comment.78 He was right to do so.
98. When giving evidence Mr Close tried to pretend that his reference to
Barangaroo was ‘of a passing nature only, that is general chit chat’.79
Even before his repeated admissions that he was prepared to say
whatever he liked, whether or not it was true, this statement was not
believable. His explanation does not account for the four question
marks that he placed at the end of his email. Those question marks are
not in the nature of general chit chat. They signal a threat as to the
future of Universal Cranes on the site. Further, none of Mr Close’s
emails contain ‘chit chat’ - they are extremely short and punchy.
Further attacks in October 2012
99. For so long as Universal Cranes withstood the demands of the
CFMEU, its woes continued.
100. On 16 October 2012 a CFMEU organizer rang Mr Jason Zoller, of
BMD Constructions (one of the joint venturers on the Port Connect
78 Albert Smith, witness statement, 4/8/14, para 80. 79 Peter Close, witness statement, 4/9/14, para 65.
1430
project). He said that he had an issue with Universal Cranes and he
was going to stop the cranes from working on site.80
101. Shortly after that call, employees of Universal Cranes drove a crane
from the company’s depot to the Port Connect site. After they arrived
at the site and were about to start work, they were approached by two
officers of the CFMEU who had followed them in a car. They parked
their car so as to block the gate and cause a safety issue.81
102. Mr Zoller went to the gate to investigate. On his arrival he saw two
CFMEU officials. The CFMEU was holding up work and preventing
the crane from working. One official replied that that was his
intention. Another union official said that they had followed the crane
from the yard, and that similar action was intended to be taken on a
number of other sites. Mr Zoller said that the CFMEU officials had no
right to be there. He asked them to leave. They did not leave. It was
clear to Mr Zoller that they intended to remain for as long as the
Universal Cranes equipment was there.82
103. The action of these officials was causing congestion on the site. This
raised safety issues. As a result Mr Zoller was forced to tell the
Universal Cranes employees to head back to the depot. Mr Zoller did
not want to take this action, but he needed to clear the area so that
other works could continue.83 The CFMEU submitted that: ‘It was Mr
Zoller who asked Universal Cranes to leave the site. He clearly had an
80 Jason Zoller, witness statement, 3/9/14, para 11. 81 Jason Zoller, witness statement, 3/9/14, para 12. 82
Jason Zoller, witness statement, 3/9/14, paras 13-18. 83 Jason Zoller, witness statement, 3/9/14, para 20.
1431
interest in blaming the CFMEU for his decision.’84 This is a total
distortion of the evidence. Further, Mr Zoller was available to be
cross-examined by counsel for the CFMEU, but was not requested to
attend.
104. These events were subsequently recorded in a right of entry report
dated 17 October 2012.85
105. On 17 October 2012, Mr Schalck and other Universal Cranes
employees met with staff on the Port Connect project. They were
informed that an Andrew Sutherland and another CFMEU organiser
had threatened to come back to the site and stop work again unless
Universal Cranes were removed for good.
106. Mr Schalck recorded these events at the time in a written statement
which he signed.86
107. In that statement Mr Schalck noted that, as a result of the union
pressure, Port Connect had ‘off-hired’ the Universal Cranes on 19
October 2012 and that Port Connect had informed Mr Schalck that it
would not engage Universal Cranes on day shifts but would continue to
take the services of Universal Cranes on night shifts because it did not
believe the CFMEU would be ‘out’ on the night shifts.
108. On 27 October 2012 Mr Smith sent an email to Mr Schalck and Mr
Jones (of Bechtel).87 Mr Smith reported that Leightons (a contractor
84 CFMEU, written submissions, 14/11/14, Pt 8.7, para 54. 85 Jason Zoller, witness statement, 3/9/14, para 27 and Annexure B. 86
Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 22.
1432
on a project) had been visited on site by the CFMEU, who had
threatened to shut down the project if Universal Cranes’ machinery or
people were still on site on 29 October 2012.
109. Mr Smith recorded in his email that the threat in relation to the Curtis
Island project was the last straw for Universal Cranes, who could no
longer continue to stand up against the union action. Therefore the
union pattern EBA for crane drivers and riggers would be signed. He
also recorded that Mr Close had advised him that, in the circumstances,
there would be no action against Universal Cranes or its clients that
week.
Rejected offer to sign CFMEU pattern agreement
110. On October 2012 Mr Schalck sent an email to Mr Close and Mr
Ingham stating that he had ‘really noticed the pressure that you guys
have applied to our clients lately; especially Legacy Way, Port
Connect, Barangaroo and lately Curtis Island’.88 He said that the
company had been evaluating its options and had ‘concluded that we
have no other option than to sign the CFMEU pattern agreement’.
111. The CFMEU did not accept that position. Instead, Mr Close told Mr
Schalck that unless all associated entities of Universal Cranes,
including Smithbridge, signed the CFMEU pattern agreement, there
would be ‘no deal’. In addition, the union demanded 100% employee
membership from all branches and associated entities. Mr Schalck
87 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 25. 88 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 24.
1433
confirmed these matters in an email of the same day to Mr Hogan and
Mr Smith.89
112. The decision Mr Smith had made to buckle to the union pressure and
have Universal Cranes agree to sign a CFMEU pattern agreement was
made under very considerable economic duress. The CFMEU attack
on the company had caused substantial loss for the company and the
workers. Universal Cranes’ equipment was sitting in the yard because
the company could not get onto sites. The company’s workers were
‘scratching to get 40 hours a week work’ with a consequence that the
company was having to start putting workers off.90 Mr Smith’s view
was that he had no alternative but to sign the agreement.91
113. The union’s demand for an increase in membership amongst Universal
Cranes employees also placed great pressure on the workers. As Mr
Smith indicated, his workers were used to doing 50 to 55 hours per
week and getting paid overtime but, as a result of the union boycott
activity, the same workers were struggling to get 40 hours work a
week. In this environment, the workers were prepared to do anything
to keep their jobs and to get their work hours back up, including
becoming union members. Mr Smith was appreciative of this fact and,
in a memorandum he issued to his employees, he passed on his thanks
and indicated that he would increase their pay by $1 per hour to cover
89 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 24. 90 Albert Smith, 4/8/14, T:31.43-47. 91
Albert Smith, 4/8/14, T:32.20-22.
1434
the cost of the CFMEU membership fees that they would have to
pay.92
114. The conduct of the CFMEU in the course of its dealings with Mr Smith
does not make pleasant reading. It cannot be regarded as the
‘legitimate use of industrial muscle’. It cannot be regarded as bona
fide negotiation - for every move by Mr Smith towards consensus was
met by the introduction of an entirely fresh demand. It cannot be
regarded as justified in the interests of employees - for many of the
benefits generated by BERT do not flow to the employees whose
employer provides BERT with its funding. It would be kind to call the
CFMEU’s conduct paltering. It was nothing but a brutal and ruthless
drive for complete capitulation.
Threats in July 2013
115. In that fashion Universal Cranes eventually capitulated to the 2012
CFMEU campaign against it and ultimately agreed to sign the CFMEU
form of EBA. But the other crane hire companies in the Smithbridge
Group were reluctant to do so. For example, Gordon Willocks, a
shareholder and Managing Director of Universal Cranes Townsville,
was not prepared to sign the CFMEU form of EBA. As Mr Smith
recorded in his email of 31 October 2012, Universal Cranes Townsville
could not afford to enter into the Agreement because market prices in
Townsville were significantly lower than both the CFMEU rates and
the Universal Cranes rates.93 The Rockhampton branch of Universal
Cranes was in a similar position, as recorded in an email of 25
92 Albert Smith, 4/8/14, T:32.31-47. 93 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 28.
1435
November 2012 from the Rockhampton Manager Mick Smith to Mr
Schalck and Mr Smith.94
116. This reluctance on the part of entities in the group other than Universal
Cranes to sign a union form of EBA resulted in further pressure being
applied by the CFMEU. So the 2012 campaign of the CFMEU against
Universal Cranes was succeeded by a 2013 campaign of the CFMEU
against entities in the group other than Universal Cranes.
117. In May 2013 Mr Ravbar of the CFMEU advised Mr Smith that the
union would continue to apply boycotts to all Universal Cranes
operations unless it arranged for all the branches and subsidiaries to
become parties to a union agreement.
118. Mr Smith recorded this fact in a letter of 8 July 2013 to Mr Ravbar.95
In that letter Mr Smith asked for a written assurance from Mr Ravbar
that the CFMEU would cease all boycotts and other interference in the
business. Mr Smith added ‘Michael I appeal to you to work with us…
we have loyal employees who have great respect for our business and
for your organization and we plan to be long term participants in the
crane industry in Queensland’.
119. Mr Ravbar gave no such written assurance. Indeed he did not supply
any written response at all. Mr Ravbar did not write back denying the
existence of the ban and boycott that Mr Smith described in his letter.
Yes he surely would have done had the position not been as Mr Smith
described.
94 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 31. 95 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 33.
1436
120. Mr Smith then met with Mr Ravbar on 8 July 2013 at the union’s
office in Bowen Hills. Mr Smith prepared a written record of what was
said at this meeting within an hour of its conclusion.96 The fact he did
so is established by his oral evidence.97 It is also established by an
email of 8 July 2013 which attaches a copy of his notes.98
121. The notes of the meeting taken by Mr Smith record that Mr Ravbar
said that if Universal Cranes Townsville did not enter into a union
form of enterprise agreement, the union would ‘kick’ the company off
the Darwin and Townsville sites and would ‘kill’ them in Darwin.
122. Further, the note recorded that two union organisers, Michael Robinson
and Andrew Sutherland, were planning to have a discussion the
following morning in order to confirm the plan to ban the company in
Townsville by making sure the company was kicked off any jobs in the
area. Mr Ravbar said that Universal Cranes Townsville needed to sign
up ‘now’.
123. Mr Smith further confirmed these matters were raised at the meeting in
an email of 8 July 2013 to an industrial relations adviser and other staff
members.99 He recorded that Mr Ravbar’s position was that unless
Universal Cranes Townsville signed up to the CFMEU Agreement the
union would recommence bans, including in Darwin and Townsville.
96 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 34. 97 Albert Smith, 4/8/14, T:33.26-38.47. 98
Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 34. 99 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 34.
1437
124. Mr Ravbar denied that he had said the matters that were recorded in Mr Smith’s notes and emails of the day. Mr Ravbar’s evidence is rejected for the following reasons.
(a) Mr Ravbar’s recollection of the meeting was poor. He
thought the meeting had taken place at Murarrie. In fact, it
had taken place at the head office of the union at Bowen
Hills.100
(b) There is no reason to conclude that Mr Smith’s
contemporaneous record of the conversation, and his email
shortly after the conversation, do not constitute an accurate
record of what was said. There is no basis for thinking that
the notes he made on the day were mistaken or fabricated.
There is no basis for thinking that Mr Smith had taken it upon
himself to write out a note of the meeting which bore no
resemblance to what had actually transpired
(c) There are significant portions of the file note taken by Mr
Smith which are not disputed by Mr Ravbar. They must be
accepted as accurately recording those parts of the meeting.
That being so, the suggestion that Mr Smith somehow
misunderstood what happened or fabricated the content of
other parts of the notes becomes all the more difficult to
accept.
(d) The language used at the meeting and recorded in Mr Smith’s
file note is consistent with the language that had been used in
100 Michael Ravbar, 7/8/14, T:421.9-22.
1438
various other complaints made through the relevant period by
Mr Smith and others from Universal Cranes. It had been an
ongoing source of complaint. Not one of those written
complaints and allegations was ever denied by Mr Ravbar, Mr
Close, Mr Ingham and others in any written answer given to
those complaints. Indeed, in many cases, the written
responses implicitly accepted that the position that had been
outlined by Mr Smith and others in their emails was accurate.
(e) Mr Ravbar did not have any notes of the meeting.101 He
acknowledged understanding the importance of keeping a
written record of events.102 The fact he did not keep a written
record on this occasion is consistent with the fact that the
matters he was discussing were ones that he did not wish to
be recorded because a written record would be harmful to him
and the CFMEU.
(f) For reasons set out later, Mr Ravbar was not a witness of
credit. His evidence cannot be preferred to that of Mr Smith.
125. On Mr Smith’s evidence, the CFMEU’s subsequent attempts to impose
bans on Universal Cranes Townsville have been largely unsuccessful
due to the fact that Townsville is a small market and not many projects
are CFMEU based.103
101 Michael Ravbar, 7/8/14, T:421.42-47. 102 Michael Ravbar, 7/8/14, T:418.47-419.2. 103
Albert Smith, witness statement, 4/8/14, para 128.
1439
Attacks concerning Smithbridge
126. More recently, there have been communications between the CFMEU
and Mr Smith in relation to the Smithbridge arm of Mr Smith’s
enterprise.
127. Smithbridge was awarded work by Hutchinson Builders on their
project at the Gladstone Harbour boardwalk. The contract between the
two was negotiated in about August 2013 and Smithbridge began work
on the project in the following month. Mr Smith’s unchallenged
evidence was that from October 2013 through to December 2013, and
for two weeks in January 2014, Smithbridge worked on the project
without any significant issues (other than the pressure that was being
applied on site by CFMEU organisers for employees to become
members of the union).104
128. In late 2013 Mr Moses, a CFMEU organiser based in Gladstone, had a
conversation with Mr Swift, Hutchinson’s Site Manager for the project.
Mr Moses referred to the fact that the CFMEU was in discussions with
Smithbridge in relation to an EBA, but those discussions were not
going the way the CFMEU wanted. He told Mr Swift that if things did
not work out there ‘might be a storm coming’.105
129. On 7 January 2014 Mr Smith received a text message from Mr Schalck
informing him that Mr Ravbar had told Mr Close that he was going to
104 Albert Smith, witness statement, 4/8/14, para 157. 105 Robert Swift, witness statement, 3/9/14, para 5.
1440
start banning Universal Cranes again because Smithbridge did not have
a concluded enterprise agreement with the CFMEU.106
130. This led Mr Smith to send an email to Mr Ravbar on 7 January 2014.
He stated that he understood that ‘the CFMEU have advised somebody
that you intend to re instate (sic) the bans on Universal Cranes working
on CFMEU controlled job sites because we have not signed up an
agreement with the CFMEU for Smithbridge’.107
131. Mr Ravbar did not respond to this email denying his intention to
reinstate bans on Universal Cranes. He would have done if Mr Smith’s
email did not reflect the truth.
132. Later in February 2014 Mr Smith received a telephone call from Mr
Schalck. Mr Schalck informed him that Mr Sutherland of the CFMEU
had visited Universal Cranes and advised that secondary boycotts of
Universal Cranes would recommence if Smithbridge did not sign the
CFMEU’s form of EBA.108 Mr Sutherland told Mr Schalck that Mr
Smith’s failure to agree to an EBA for Smithbridge on the terms the
CFMEU wanted was ‘jeopardising Universal Cranes relationship with
the union’.109
133. Although Mr Sutherland did himself no credit by refusing to admit
this,110 he was intimating through these words that unless Smithbridge
106 Albert Smith, witness statement, 4/8/14, para 158. 107 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 50. 108
Albert Smith, witness statement, 4/8/14, para 162. 109 Andrew Sutherland, 4/9/14, T:691.33-692.12. 110
Andrew Sutherland, 4/9/14, T:694.10-33.
1441
signed the EBA there would be trouble for Universal Cranes. There is
no other sensible explanation. Mr Schalck was the general manager of
Universal Cranes. Mr Sutherland got on well with him. There was no
reason why that would change.111 Smithbridge was an entirely
different company. Whatever Mr Smith did at Smithbridge could
have no logical impact on the relationship between the CFMEU and
Universal Cranes. The question as to how the CFMEU related to
Universal Cranes was a matter for the CFMEU, not Smithbridge.
134. On 27 February 2014 Mr Loakes, another CFMEU organiser, and Mr
Churchman, a CFMEU delegate, came on to the Gladstone site to ‘shut
down’ Smithbridge. This involved demanding that the Smithbridge
employees stop working.112 This led to the Smithbridge employees
and Mr Loakes and Mr Churchman discussing the matter with Mr
Swift, Hutchinson’s Site Manager for the project. The venue was Mr
Swift’s office.
135. In that discussion Mr Loakes said that he had spoken to the
Smithbridge employees about not getting the entitlements that workers
got under the Hutchinson EBA. The Smithbridge employees
responded saying that they were happy with what they were being paid
and wanted to get back to work. Mr Loakes told them that they would
not be going back to work and might as well go home.113
111 Andrew Sutherland, 4/9/14, T:693.3-5, T:693.38-47. 112 Robert Swift, witness statement, 3/9/14, paras 8-12; Brent Dowton, witness statement, 3/9/14, paras 7-10; Leanne McLean, witness statement, 3/9/14, paras 9-14; Nicolas Navarrete, witness statement, 3/9/14, paras 76, 77 and 79. 113
Robert Swift, witness statement, 3/9/14, para 8.
1442
136. The Smithbridge employees then repeated that they were happy with
the entitlements they were receiving and wanted to get back to work.
Mr Loakes said that this would not happen and they might as well buy
their tickets back to Brisbane.114
137. One of the Smithbridge employees asked Mr Swift for a formal
direction to leave the site. Mr Swift refused, for the simple reason that
he did not want them to go. He said it was not his decision to stop
them from working; it was the union’s decision. Mr Swift did not want
to stand in the way of the CFMEU. He expected that if he put his foot
down he would get aggravation from the CFMEU and Hutchinson’s
relationship with the union would have soured, resulting in trouble and
delays on the Gladstone site and potentially other Hutchinson sites.115
138. Mr Loakes gave curious evidence on this matter. According to him, he
merely ‘requested’ the Smithbridge employees to ‘stop work pending
the resolution of the dispute concerning non-compliance’, that the
workers said they wanted to keep working and finish the job, but then
decided of their own volition to do as Mr Loakes had ‘requested’.116
He was inviting belief in the proposition that, after he made a request
to workers who (i) were happy with their conditions, (ii) had nearly
finished their job and (iii) wanted to keep working, the workers
decided to do as requested and stop working rather than carry on with
their duties to their employer and Hutchinson. This proposition is not
believable. Mr Loakes told them they had to stop and leave the site.
Mr Swift’s evidence was accurate.
114 Robert Swift, witness statement, 3/9/14, para 9. 115 Robert Swift, witness statement, 3/9/14, paras 10-11. 116
Ben Loakes, witness statement, 22/9/14, paras 4 - 7.
1443
139. On 28 February 2014 Mr Smith sent Mr Ravbar an email complaining
about the union’s conduct towards Smithbridge and Universal Cranes
at the Gladstone Boardwalk site.117 In that email he reminded Mr
Ravbar that all of the Smithbridge and Universal Cranes employees on
site were members of the CFMEU. He also said that all of the
Universal Cranes employees onsite had been employed under the terms
of the CFMEU’s form of EBA. As such they were paid up members of
BERT, BEWT and CIPQ.
140. The email indicates that Mr Smith and Mr Ravbar had discussed the
matter over the telephone that morning. During the discussions Mr
Ravbar had:
(a) demanded that the non-union EBA between Smithbridge and
its employees be terminated and replaced with the CFMEU
form of agreement;
(b) indicated that the CFMEU may commence a campaign of
bans against Smithbridge and Universal Cranes similar to
those applied in 2012; and
(c) said that he ‘had his ways’ and that while the union would not
be ‘openly’ banning Smithbridge or Universal Cranes, those
companies would feel the effects of the union’s ‘applied
pressure’.
141. Mr Ravbar did not write back denying any of the matters that Mr Smith
had outlined in his email. He did not deny what the CFMEU was
117 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 51.
1444
reported to have done on the Gladstone site. He did not deny having
said any of the things outlined in Mr Smith’s email. He did not deny
that the CFMEU had imposed bans. He did not deny that he had
threatened to continue those bans unless Smithbridge signed the EBA.
142. Further, Mr Smith was not cross-examined about his version of the
conversation as set out in his email of 28 February 2014. Mr Ravbar’s
statement of evidence did not deny these contemporaneously recorded
events. That was so even though Mr Ravbar had satisfied himself that
he had been able to address everything that Mr Smith had raised in his
statement.118
143. On 1 March 2014 there was a further email from Mr Smith to Mr
Robinson and Mr Moses of the CFMEU.119 Mr Smith made the same
series of complaints. He added that he had recently spoken with Mr
Moses who had indicated that there would be no union approval for
either Smithbridge or Universal Cranes to do any work on the
Gladstone site until he received instructions otherwise from ‘higher up
in the union organisation’. Neither Mr Moses nor Mr Robinson
responded to that email denying any of the matters raised in it.
144. A couple of days later, on 3 March 2014, Mr Smith sent Mr Ravbar
and Mr Robinson an email. That email recounted the difficulties that
were being experienced on the Gladstone site.120 Mr Smith said Mr
Easterbrook of Hutchinson had indicated that neither Smithbridge nor
118 Michael Ravbar, 6/8/14, T:309.11-13. 119 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 52. 120
Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 54.
1445
Universal Cranes would be allowed back on site until the CFMEU
directly advised Hutchinson of its approval.
145. Mr Smith also recorded the fact that he had spoken to Mr Robinson,
who had told him that neither Universal Cranes nor Smithbridge
employees would be allowed back on the project until Mr Smith had
agreed to sign an EBA with the CFMEU which covered the whole of
the Smithbridge business over all of Australia. Mr Smith added
‘please advise me as soon as possible if I have misunderstood the
situation’.121
146. Mr Ravbar gave no such advice in response. He did not write back
denying any matters raised in Mr Smith’s email.
147. Mr Robinson gave evidence in which he vehemently denied having
spoken with Mr Smith on 3 March 2014.122 He alleged that Mr Smith
had not just given false evidence about the conversation, but had gone
so far as to make up the conversation in his email of 3 March 2014. He
alleged that even though Mr Smith actually copied Mr Robinson into
the email, and specifically asked for advice in that very email as to
whether he had misunderstood the position. Mr Robinson said, on the
basis of these assertions, that Mr Smith was not an ‘honourable
person’.123
121 Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 54. 122 Michael Robinson, 4/9/2014, T:602.4-7; 605.18-20. 123
Michael Robinson, witness statement, 4/9/14, para 11; Michael Robinson, 4/9/14, T:605.28-32.
1446
148. Since Mr Robinson brought up the subject of dishonourable persons, it
must be questioned whether it was Mr Robinson rather than Mr Smith
who fits that description. Mr Smith’s telephone records reveal that he
did have a telephone conversation with Mr Robinson on 3 March
2014.124 Mr Robinson dissembled and suggested this may have been a
voice mail message. That, of course, was inconsistent with the
evidence he had previously given that Mr Smith had not rung him.125
Other phone records revealed that, despite Mr Robinson’s assertions
that he had nothing to tell Mr Smith and was too busy with domestic
duties on 1 or 2 March 2014 to speak to Mr Smith,126 he had a
conversation with Mr Ravbar on 1 March 2014 which ran for more
than 7 minutes.127 Mr Robinson was quite unreliable on these issues.
149. The ban on the Gladstone project continued. On 8 March 2014 Mr
Smith sent a further email to Mr Ravbar and Mr Robinson.128 He
recorded the fact that Mr Sutherland had told Mr Schalck that he had
been instructed to recommence the previous campaign against the
Universal Cranes business in order to pressure Mr Smith into signing
an agreement with the CFMEU for the Smithbridge business. Mr Smith
observed that this was consistent with Mr Ravbar’s earlier oral advice
that action would begin soon if Mr Smith did not agree to his demands
regarding a CFMEU agreement for the Smithbridge employees. Mr
Smith pleaded with Mr Ravbar not to proceed with the proposed bans
124 Robinson MFI-2, 4/9/14, p 1. 125 Michael Robinson, 4/9/2014, T:602.4-10; 605.18-20; Michael Robinson, witness statement, 4/9/14, para 11. 126
Michael Robinson, witness statement, 4/9/14, para 9. 127 Robinson MFI-3, 4/9/14, p 1. 128
Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 56.
1447
on Universal Cranes in support of his dispute with Smithbridge as it
would unnecessarily hurt Universal Cranes employees, most of whom
were CFMEU members.
150. Again, Mr Ravbar did not respond to that email denying any of the
matters raised. Counsel assisting submitted that he said he deliberately
chose not to read it. The evidence referred to129 said: ‘I had long since
stopped reading Mr Smith’s emails or responding to them.’ This is not
an efficient way of dealing with employers. In those circumstances
failure to deny a proposition can often, as here, be taken as acceptance
of it.
151. Fortuitously for Smithbridge and its contracting party, it was able to
complete its sub-contract work on 8 March 2014 by undertaking the
work at a time unknown to the CFMEU.130
152. Most recently, John Hanna, the Managing Director of Universal Cranes
Sunshine Coast, has indicated to Mr Smith that the company has been
taken off a Mirvac project and replaced by another crane company as a
result of pressure being applied to Mirvac from the CFMEU because of
the union’s dispute with Universal Cranes.131
129 Michael Ravbar, witness statement, 6/8/14, para 79. 130 Robert Swift, witness statement, 3/9/14, para 14; Albert Smith, witness statement, 4/8/14, para 181. 131
Albert Smith, witness statement, 4/8/14, para 184; Annexure AS-1 Tab 58; John Hanna, witness statement, 3/9/14, para 16.
1448
Dealing with the credit of Mr Ravbar and his denials
153. Mr Ravbar gave evidence that the CFMEU never applied pressure to
have Universal Cranes removed from sites. He testified that there was
never a ban imposed by the CFMEU on Universal Cranes.132
154. Mr Ravbar’s evidence was expressed in these absolute terms.
155. It became clear at an early point in Mr Ravbar’s examination that he
did not know whether those statements were true. As a result, the fact
that Mr Ravbar was prepared to give (and maintain) evidence of this
kind reflects poorly on his credit.
156. Although willing to state in absolute terms that the CFMEU had never
banned Universal Cranes or applied pressure to have Universal Cranes
removed from work sites, he admitted that, in the case of the very first
matter the subject of complaint, namely the removal of Gold Coast
Cranes from the Indooroopilly site, he was not aware that Gold Coast
Cranes had been on the site.133 He also had to concede that he had ‘no
knowledge’ about what had happened to Gold Coast Cranes on that
site.134
157. He ultimately accepted that, on the question of whether the union had
put pressure on Bastemeyers to remove Gold Coast Cranes from the
site, he could not ‘say yes or no’.135 That evidence was fundamentally
132 Michael Ravbar, 6/8/14, T:366.2-368.46. 133 Michael Ravbar, 6/8/14, T:370.33-47. 134
Michael Ravbar, 6/8/14, T:372.4-374.43 (emphasis added). 135 Michael Ravbar, 7/8/14, T:381.40-44.
1449
different from the sworn positive evidence he had previously given to
the effect that there had never been pressure applied.
158. Indeed, Mr Ravbar’s evidence on this topic deteriorated further.
Having admitted that he was not in a position to say one way or
another whether a union representative had applied pressure to
Bastemeyers to remove Gold Coast Cranes from the Indooroopilly site,
Mr Ravbar then returned to saying that ‘based on my knowledge’ the
statement that Gold Coast Cranes had been kicked off the site was
‘false’.136 However he was then immediately forced to concede, again,
that he had ‘no knowledge’ of the facts.137
159. The examination then proceeded to the next project about which a
complaint had been made in the contemporaneous correspondence,
being the FKP Project at Longland Street, Newstead. Again, although
being prepared to swear in absolute terms there had been no ban
imposed by the CFMEU on Universal Cranes, it emerged that Mr
Ravbar did not know whether or not there had been any ban at this
site.138
160. The next project about which complaint had been made in 2012 was
one involving Bauer and Transcity at the Legacy Way Tunnel project.
Contrary to his initial evidence, Mr Ravbar had to concede that he did
136 Michael Ravbar, 7/8/14, T:382.30-34. 137 Michael Ravbar, 7/8/14, T:382.36-45. 138
Michael Ravbar, 7/8/14, T:385.43-386.20.
1450
not know whether representatives of the unions had applied pressure
on that site.139
161. The position was the same in relation to work that was being
conducted by Universal Cranes for Brady Marine & Civil at the Port
Connect project. The complaint made at the time of the incident was
that a union representative had made it difficult for Brady Marine &
Civil due to the fact that the cranes on hire were from Universal
Cranes. Mr Ravbar claimed he did not even know who the union
representative at the Port Connect site was.140 If that questionable
evidence was correct, it would follow that it was not possible for him
to deny (as he did) that the union had applied pressure to Universal
Cranes’ contractor on that site.
162. The next project that had been the subject of complaint at the time was
the Westfield site at Carindale, where Universal Cranes’ customer was
a company called Scape Shapes. Again, Mr Ravbar had ‘no
knowledge’ of anything associated with Scape Shapes at the Westfield
Carindale site.141
163. It therefore appears that Mr Ravbar, from a position of alleged
ignorance as to the relevant events, was prepared to make a series of
absolute denials. This cavalier approach reflected poorly on Mr
Ravbar’s credit.
139 Michael Ravbar, 7/8/14, T:386.30-43. 140 Michael Ravbar, 7/8/14, T:388.17-18. 141
Michael Ravbar, 7/8/14, T:393.25-28.
1451
164. While Mr Ravbar was a courteous witness, other aspects of his
evidence were equally unsatisfactory.
165. He did not give candid evidence in relation to the fact that the CFMEU
had made a demand upon Universal Cranes to increase the number of
its employees who were members of the union.
166. As earlier observed, Mr Close’s response to Mr Smith’s request that
the CFMEU cease the ban on Universal Cranes on the basis Universal
Cranes would agree to enter into an EBA that included the BERT and
CIPQ clauses, was to say ‘will also want you to fix the membership’.
Mr Ravbar was aware of and approved this response.
167. When examined about this, Mr Ravbar went so far as to deny that the
expression ‘fix the membership’ was a reference to increasing
membership numbers. He argued that the expression simply meant
having Mr Smith ‘go out there and have a productive, cooperative
relationship and …talk to your workers’.142 This statement bore no
resemblance to the true position known to Mr Ravbar, and obvious
from the documents.
168. It was put to Mr Ravbar that what the CFMEU wanted, and what was
being sought through the email correspondence of August 2012, was to
have all Universal Cranes employees as CFMEU members. Mr Ravbar
said ‘that has never been a position of ours’.143 But later he admitted
that ‘in any workplace you want 100% membership that’s what unions
142 Michael Ravbar, 7/8/14, T:399.20-400.33. 143 Michael Ravbar, 7/8/14, T:400.9-14.
1452
seek to do’.144 Indeed Mr Close’s own email of 14 August stated
‘would want all workers as members like I used to have under the
previous Universal regime’.145
169. Having been given unsatisfactory evidence on these matters, Mr
Ravbar then dissembled further. He tried to allege that it was Mr
Smith who was offering ‘blood money’ in the form of union
membership fees. Mr Ravbar said that ‘at the end of the day as long as
we have access, we have good relationships’ with employees, the
union would be happy.146
170. These statements should be rejected. It is plain from Mr Close’s own
emails of 2012 that the union was demanding that Mr Smith bring
more employees to the union. Mr Smith’s unchallenged and
uncontradicted evidence was that he gave representatives of the
CFMEU regular and open access to employees.147
171. Mr Ravbar also tried to pretend that it was Mr Smith who had been
offering the CFMEU 100% membership.148 That was not true. Its
untruth is demonstrated by the email exchanges of 14 August 2012 in
which Mr Smith made it plain on various occasions that he would be
144 Michael Ravbar, 7/8/14, T:400.9-14. 145 See above para 84; Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 14. 146
Michael Ravbar, 7/8/14, T:401.17-35. 147 See above paras 26 and 40; Albert Smith, 4/8/14, T:26.3-29.36; Albert Smith, witness statement, 4/8/14, paras 39, 41. 148
Michael Ravbar, 7/8/14, T:402.39-41.
1453
unable to achieve anything of the order demanded and that all he
would be able to do would be to set a target of the order of 50%.149
172. There is another significant matter counting against Mr Ravbar, Mr
Close and other CFMEU officials. Not one of them ever wrote back to
Mr Smith or Mr Schalck to deny the serious allegations that they were
making to the effect that the CFMEU was banning Universal Cranes
and applying pressure to its customers. Mr Ravbar was someone who
had been involved with business for a long time and he admitted that
he well understood the importance of reducing communications to
writing so there is a clear record.150
173. If the position was not as Mr Smith and Mr Schalck had described in
their various emails and letters of complaint to the CFMEU, these
experienced union campaigners would have responded in writing to
make clear that the allegations were denied. No one ever did this.
174. Mr Ravbar’s treatment of this issue during the course of his
examination was unimpressive.
(a) At first he admitted that there was not one response at any
time from the CFMEU denying the allegations of boycotts
and bans that have been made by Universal Cranes.151
149 Michael Ravbar, 7/8/14, T:402.43-47; Albert Smith, witness statement, 4/8/14, Annexure AS-1 Tab 14. 150
Michael Ravbar, 7/8/14, T:418.39-419.2. 151 Michael Ravbar, 7/8/14, T:425.12-14.
1454
(b) He then refused to accept an obvious proposition, namely that
it would have been easy to do a one line email back to Mr
Smith or Mr Schalck stating that the allegations made were
denied.152
(c) He then went back on his earlier evidence that he did not
know of one response denying the allegations, and said that
there had been ‘verbal’ denials.153 By the time of this reversal
in his evidence he had appreciated that the absence of any
denial of Mr Smith’s allegations throughout the whole of
2012 and 2013 was harmful to the CFMEU.
(d) Mr Ravbar’s evidence later stated that he had actually given
instructions to the CFMEU employees not to respond to Mr
Smith’s written allegations, because he had heard rumours
that Mr Smith was working with the FWBC.154 If he was
concerned that Mr Smith’s emails were inaccurate and that
Mr Smith was trying to trap the CFMEU, it would have been
all the more important to write back, clearly stating the
position.155
(e) When this was put to Mr Ravbar he changed his evidence
again, and said that he did not respond to Mr Smith’s emails
152 Michael Ravbar, 7/8/14, T:425.16-18. 153 Michael Ravbar, 7/8/14, T:425.20-33. 154
Michael Ravbar, 7/8/14, T:430.8-13. 155 Michael Ravbar, 7/8/14, T:431.19-23.
1455
in which complaints and allegations were made because he
‘did not have time’.156
175. The matters pertaining to Mr Ravbar’s credit as set out in the
submissions concerning the BERT funds are also of relevance (as to
which see Chapter 5.2).
176. For these reasons Mr Ravbar was not a witness of credit. His evidence
cannot be preferred to that of Mr Smith.
Rejection of CFMEU’s theories as to customers’ behaviour
177. The CFMEU advanced various theories to seek to explain why it was
that the many different contractors with whom Universal Cranes and
Smithbridge dealt in 2012 and 2013 removed those companies from
the sites they were working on.
178. The evidence given by witnesses from Smithbridge Group and its
customers demonstrates that those theories are wrong. However, for
the sake of completeness, it is worth describing what the CFMEU
theories were and why they were misconceived in any event.
179. One theory put forward by the CFMEU concerned the existence of a
‘sub-contractor clause’ in some of the EBAs that the CFMEU has with
some builders.
180. The clause in question reads as follows:
156 Michael Ravbar, 7/8/14, T:431.25-36.
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35 EMPLOYMENT SECURITY, STAFFING LEVELS, MODE OF RECRUITMENT AND REPLACEMENT LABOUR
35.1 The employer recognises that in certain circumstances the use of contractors and labour hire may effect the job security of employees covered by this agreement.
The use of contractors and the use of supplementary labour hire requirements in this clause shall not apply to projects currently under construction before the signing of this agreement.
The application of these requirements shall recognise geographical and commercial circumstances that may result in a competitive disadvantage to the employer and its capacity to secure the project. In these circumstances the Employer and the Union(s) agree to vary these requirements on a project by project basis. Negotiations are to be conducted in good faith and agreement will not be unreasonably withheld.
35.2 Use of Contractors
If the company wishes to engage contractors and their employees to perform work in the classifications covered by this agreement, the company must first consult in good faith potentially affected employees and their union. Consultation will occur prior to the engagement of sub-contractors for the construction works.
If, after consultation, the company decides to engage bona fide contractors, these contractors and their employees will receive terms and conditions of engagement (or terms no less favourable) as they would receive if they were engaged as employees under this agreement performing the same work. The use of sham sub-contracting arrangements is a breach of this agreement.
181. CFMEU’s theory proceeded on the basis that because this clause
existed, and because neither Universal Cranes nor Smithbridge had a
CFMEU form of EBA, contractors on projects would have been
obliged to refuse to engage Universal Cranes and Smithbridge, and
would have decided not to use them for this reason.
1457
182. There was no evidence advanced by the CFMEU to support this
theory. It ran counter to the evidence of the witnesses from
Smithbridge Group and its customers.
183. Further, the theory was fundamentally misconceived.
184. First, taking the case of the Multiplex project at the Indooroopilly
shopping center, the EBA between the CFMEU and Multiplex was not
entered into until late 2012.157 This was over 6 months after the period
when Gold Coast Cranes were removed from that site. As such, the
sub-contractor clause in that EBA could have had nothing to do with
the treatment of Gold Coast Cranes in May 2012. The CFMEU’s
questioning of Mr Smith therefore proceeded on the incorrect basis
that the Multiplex EBA bound that company to act in a particular way
towards Universal Cranes.158
185. Secondly, in many cases, the Universal Cranes or Smithbridge
company in question was not engaged by a head contractor who may
have had a union form of EBA with the ‘sub-contractor clause’ in it.
Rather, the Universal Cranes or Smithbridge company was retained by
a sub-contractor.
186. As such, even if the Multiplex EBA with the CFMEU had existed at
the relevant time (which it did not), the sub-contractor clause in that
EBA was irrelevant to the position of Gold Coast Cranes. This is
because the sub-contractor clause would only have related to the
157 Michael Ravbar, witness statement, 6/8/14, Annexure Tab MR04. The CFMEU later sought to tender an earlier EBA with a Multiplex company. That is not relevant, because it is an EBA with a different Multiplex company. 158
See for example, Albert Smith, 4/8/14, T:68.3-69.26.
1458
position as between the builder and contractor. It did not purport to
regulate, in any way, the position as between the contractor and Gold
Coast Cranes.
187. Thirdly, at around the very time when Universal Cranes and Gold
Coast Cranes experienced the difficulties Mr Smith described, the sub-contractor clause had been the subject of litigation between Multiplex
and the CFMEU. Multiplex and the CFMEU were, at that time, in the
middle of negotiations that ultimately led to the EBA executed by them
in late 2012. In the course of those negotiations, Multiplex had
contended that the sub-contractor clause had no operation where
Multiplex did not have its own employees to carry out the works to be
sub-contracted. That contention was well founded in circumstances
where section 172 of the Fair Work Act 2009 (Cth) provides that an
enterprise agreement must concern matters pertaining to the
relationship between an employer and its employees, where the clause
was concerned with the ‘employment security’ of Multiplex’ own
employees, and where the machinery in clause 35.2 required
consultation with ‘affected employees’ (of which there could be none
if Multiplex did not have employees for the sub-contract works).
188. Multiplex’s contentions about the limited scope of operation of the
sub-contractor clause were accepted by Fair Work Australia on 16 May
2012 in Construction, Forestry, Mining and Energy Union v Brookfield
Multiplex Australasia Pty Ltd.159
159 [2012] FWA 4051.
1459
189. As a result of this published decision, Multiplex and other head
contractors would have been well aware that the sub-contractor clause
had no application where the sub-contractor to be retained by the head
contractor would carry out work which the head contractor did not
have its own staff to perform.
190. There is no suggestion in any evidence that any of the head contractors
employed their own crane operators. That being so, in light of the
published decision of the day, no contractor would have considered the
sub-contractor clause in the EBA to be relevant to Universal Cranes or
Gold Coast Cranes performing work onsite. Multiplex was, at this very
time, acutely aware that the clause was irrelevant. It had championed
that view. Hence it is not correct to suggest that the clause motivated
Multiplex (or any other head contractor) to treat Gold Coast Cranes in
a particular way.
191. Fourthly, Universal Cranes and Smithbridge were already working on
the sites in question. Indeed, in some cases, they had been working for
many months. They had not been excluded from the site or working on
the project by reason of the employment terms of the company. That
would surely have been a matter addressed at the outset of the project.
Indeed Mr Ravbar confirmed this in his oral evidence, noting that to
the extent conversations between the union and contractors take place,
they occur ‘when these projects are started’ and once undertaken by
contractors to ensure they ‘get the right subbies’.160
160 Michael Ravbar, 7/8/14, T:384.16-20.
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192. Fifthly, there is no evidence to demonstrate that any head contractor or
sub-contractor considered that the terms of the 2012 EBA between
Universal Cranes and its employees were less favourable than those
enjoyed by the head contractor.
193. The proposition that simply because the 2012 EBA made provision for
a self-funded redundancy and sick leave scheme rather than for
contributions to BERT and CIPQ, Universal Cranes’ employees were
receiving terms and conditions no less favourable than those of any
given head contractor does not follow. And there is no evidence to
indicate that head contractors believed that it followed.
194. In the case of sick leave and income protection, for example, as Mr
Smith succinctly explained: ‘I offered my employees exactly the same
benefits as the CIPQ fund but because I have to minimise my costs to
stay in business, I devised a way to do it at a lower cost’.161 That
evidence was not challenged.
195. A consideration of whether the terms and conditions of engagement of
an employee by Universal Cranes were no less favourable would
involve an analysis of all of the integers of the employment contract
including, for example, rates of pay, flexibility of working hours and
so on. In this sense, the sub-contract clause appears to be almost
unworkable save for the most obvious of cases where all of the
employment terms of a given sub-contractor are worse than those
enjoyed by employees of the head contractor.
161 Albert Smith, 4/8/14, T:58.7-9.
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196. Yet another problem with the CFMEU theory is that, on occasion, the
contract under which Universal Cranes was operating was for ‘dry-hire’ - that is, Universal Cranes was simply hiring cranes without
providing any workers. Yet even here, a space in which the sub-contractor clause could have no possible scope for operation, Universal
Cranes was refused access to worksites. Mr Ravbar admitted this to be
so,162 thus admitting the CFMEU theory to be one incapable of
acceptance, at the very least in respect of the ‘dry hire’ incidents.
197. For each and all of these reasons, the CFMEU ‘sub-contractor clause’
theory is quite untenable. It is an attempt by the CFMEU to explain
away the on-site treatment of Universal Cranes and Smithbridge in
circumstances where every contemporaneous record and the evidence
of many witnesses points to the conclusion that the treatment of these
companies was the result of a deliberate banning campaign launched
by the CFMEU.
198. Perhaps aware of the shortcomings in the sub-contractor clause theory,
the CFMEU appeared to offer up an alternative explanation through
Mr Ravbar. That explanation was that, ‘when asked’, CFMEU officials
would inform persons retaining Universal Cranes that Universal
Cranes refused to pay into BERT.163
199. This alternative explanation is no more plausible than the sub-contractor theory.
162 Michael Ravbar, 7/8/14, T:387.16-32. 163 Michael Ravbar, witness statement, 6/8/14, para 45.
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200. To begin with, there is no evidence of any occasion upon which any
contractor made such an inquiry of the CFMEU. The fact Mr Ravbar
and others were unable to provide a single example of such an
occurrence is telling. There is no substance to the union position. It
ran counter to the evidence of the witnesses from Smithbridge Group
and their customers.
201. Further, the explanation makes no sense. As earlier indicated, in most
cases Universal Cranes and Smithbridge had been working on the site
for many months. Any inquiry made by a head contractor of the
CFMEU would have been made at the outset of the project and
certainly before Universal Cranes was engaged. The theory is also
illogical given the fact some of the contracts were ‘dry hire’ only.
The CFMEU’s submissions
202. The primary approach of the CFMEU’s written submissions was to
complain about instances where witnesses had not been called, where
hearsay was relied on and where counsel assisting was ‘unbalanced’.
In general it may be said that none of these points descends to any
grappling with the detail of what counsel assisting submitted. Even if
these points had been correct, how did they invalidate the reasoning in
counsel assisting’s submissions? In any event, they were not correct.
The witnesses not called were either non-essential or non-traceable.
The limited amount of hearsay relied on was almost always first-hand.
And counsel assisting were not unbalanced. The greater part of the
CFMEU’s submissions merely advocated adoption of whatever
evidence was against the evidence on which counsel assisting relied,
without explaining why the evidence it favoured should be preferred.
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203. On more than one occasion the CFMEU submissions misrepresented
the evidence. It would be odious to multiply examples. But one may
be given. The CFMEU submitted, in accordance with Mr Ravbar’s
evidence, that ‘the CFMEU did not approach Universal Cranes
customers’.164 With that may be compared the evidence that a
CFMEU official came onto the Indooroopilly site and ejected Gold
Coast Cranes. In doing so he said that the company had been banned
from all sites in Brisbane. He acted in this way contrary to the wishes
of the customer of Gold Coast Cranes (who actually suffered losses as
a result). Multiple witnesses gave firsthand (not hearsay) evidence that
the CFMEU official on the Gladstone project came onto the site and
unilaterally determined that the Smithbridge workers would not
continue work, even though Smithbridge’s customer wanted them to
stay and continue the work.
204. The CFMEU submitted that procedurally it suffered unfairness because
of the speed with which evidence had to be prepared from 25 July 2014
before a hearing in Brisbane commencing on 4 August 2014 and
because of a lack of notice to some witnesses of findings that might be
made against them. The contention about the first item of supposed
unfairness is rejected. The submission is not linked to the position of
any particular witness or any particular evidence. The second
contention culminates in the submission that no findings that Messrs
Loakes, Cradden or Toyer acted contrary to law be made. Counsel for
the CFMEU does not act for Mr Cradden or Mr Toyer. However, no
findings of that kind are made against Mr Cradden or Mr Toyer. If the
submission is that no finding should be made against Mr Treadaway
164 CFMEU submissions, 14/11/14, Pt 8.7, para 36.
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either, who did not give evidence and for whom the CFMEU’s counsel
do not act, the position is that no findings of breaches of the law are
made against Mr Treadaway. But his role in the unfolding of events is
dealt with independently of its legal character. Mr Loakes is in a
different position. He is employed by the CFMEU, who was
represented before this Commission. The CFMEU gave Mr Loakes
copies of the statements that affected him, and its lawyers appeared
throughout the course of Mr Loakes’ evidence. The CFMEU admits165
that he supplied a statement prepared by the CFMEU lawyers working
on the Commission’s inquiry responding to the material put on by the
Royal Commission, and gave oral evidence. It may be inferred that he
had been informed of all the statements having an impact on his
position. The CFMEU submits: ‘He was not forewarned that
submissions would be made that his actions were contrary to the
law’.166 But the CFMEU’s legal advisers were in a position to put
before him all the material from which a conclusion that his conduct
may have been against the law is available, and it appears they did so.
The CFMEU also submits that he was ‘entitled to be heard in
opposition to any potential adverse finding’.167 The submissions of
counsel assisting fulfilled any requirement of notice sufficient to
enable him to claim that entitlement.
205. Accordingly the submissions of counsel assisting set out above are
accepted.
165 CFMEU written submissions, 14/11/14, Pt 8.7, para 43. 166 CFMEU written submissions, 14/11/14, Pt 8.7, para 23. 167
CFMEU written submissions, 14/11/14, Pt 8.7, para 23.
1465
C - CONCLUSIONS
What does Australian law have to say about the CFMEU’s behavior?
Extortion
206. Section 415 of the Criminal Code Act 1899 (Qld) provides as follows:
(1) A person (the demander) who, without reasonable cause, makes a demand -
(a) with intent to -
(i) gain a benefit for any person (whether or not the demander); or
(ii) cause a detriment to any person other than the demander; and
(b) with a threat to cause a detriment to a person other than the demander;
commits a crime.
Maximum penalty -
(a) if carrying out the threat causes, or would be likely to cause serious personal injury to a person other than the offender - life imprisonment; or
(b) if carrying out the threat causes, or would be likely to cause substantial economic loss in an industrial or commercial activity conducted by a person or entity other than the offender (whether the activity is conducted by public authority or is a private enterprise) -life imprisonment; or
(c) otherwise - 14 years imprisonment.
(2) It is immaterial that -
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(a) the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or
(b) the threat does not specify the detriment to be caused; or
(c) the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way; or
(d) the detriment is to be caused by someone other than the demander.
(3) A reference to making a demand includes causing someone to receive a demand.
(4) A reference to a threat to cause a detriment to any person other than the demander includes the statement that gives rise to a threat of detriment to the other person.
(5) A prosecution for an offense in which it is intended to rely on a circumstance of aggravation mentioned in paragraph (a) or (b) of the penalty can not be commenced without the consent of the Attorney-General.
(6) In this section - threat includes statement that may reasonably be interpreted as a threat.
207. Mr Ravbar and Mr Close may have committed various offences under
section 415 of the Criminal Code.
Count 1 for Mr Ravbar - 8 July 2013
208. As earlier described, on 8 July 2013 Mr Ravbar said to Mr Smith that
the CFMEU would kick Universal Cranes off Darwin and Townsville
sites and would kill the company’s operations in Darwin if Universal
Cranes (Townsville) did not enter into an EBA with the CFMEU on
terms acceptable to the CFMEU.
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209. This communication contained a demand accompanied by a threat, the
terms of which are self-evident from the express terms of the
communication. The demand was for Universal Cranes (Townsville)
to enter into the CFMEU’s form of EBA. The threat was that, if this
did not occur, the CFMEU would take action that would have the
effect of removing Universal Cranes off sites they worked on in
Darwin and Townsville and kill off the company’s operations in
Darwin. Such action would obviously be detrimental to Universal
Cranes companies.
210. The capacity for the CFMEU to take such action, and the nature of that
action, is apparent from the evidence of witnesses such as Mr Zoller,
Mr Swift, Mr Bastemeyer, Mr Bourner and others, and the fact that the
CFMEU could and did act in this way was well known to each of Mr
Smith and Mr Ravbar at the time of this conversation. The threat was
specific and real.
211. Did Mr Ravbar intend to gain a benefit or cause detriment to someone
by making the demand and threat? He was motivated to act as he did
by a strong desire to have Smithbridge Group companies sign EBAs in
terms which obliged them to make payments they would not otherwise
have to make to BERT, BEWT and CIPQ, a substantial portion of
which would, in due course, flow through to the CFMEU itself for
various purposes.168 He was, therefore, in making the demand and
threat, intending to benefit each of those entities.
168 See Chapter 5.2.
1468
212. Hence an offence against s 415 of the Criminal Code may have been
committed.
213. The penalty for extortion varies depending on a number of factors.
One of those factors is whether carrying out the threat would be likely
to cause substantial economic loss in an industrial or commercial
activity. In such a case, the maximum penalty is life imprisonment
(that is, greater than the 14 year maximum sentence in most other
cases).
214. It is recommended that this Interim Report be referred to the
Queensland Director of Public Prosecutions in order that consideration
may be given to the prosecution of Mr Ravbar in respect of an offence
under s 415 of the Criminal Code. There was no close consideration to
the economic loss to Universal Cranes in the event Mr Ravbar’s threat
was carried out. It is not possible to make a finding about what the
precise loss was. But it may well have been substantial. It would
certainly be loss in an industrial or commercial activity. These issues
ought to be and doubtless will be explored further by the Queensland
Director of Public Prosecutions.
Count 2 for Mr Ravbar - 28 February 2014
215. On 28 February 2014 Mr Ravbar and Mr Smith had a telephone
conversation earlier described. Its substance was recorded in an email
of the same date from Mr Smith to Mr Ravbar.
216. Mr Ravbar demanded that Smithbridge enter into the CFMEU form of
EBA, and said to Mr Smith that while he would not be openly banning
1469
Smithbridge if the EBA was not signed, the CFMEU ‘had its ways’,
Smithbridge and Universal Cranes would feel the effects of the
CFMEU’s pressure, and the pressure would be of the same kind that
Universal Cranes had previously experienced.
217. Again, the elements of an offence under s 415 of the Criminal Code
are made out.
218. First, there was a demand, namely for Smithbridge to enter into the
CFMEU form of EBA.
219. Secondly, there was a threat to cause detriment to Smithbridge and
Universal Cranes. Having regard to what Mr Ravbar said to Mr Smith
as described above, it is clear that he was communicating to Mr Smith
that the CFMEU would have organisers attend on sites where
Smithbridge and Universal Cranes were working and stop their
operations, just as they had done in the past (as demonstrated by
evidence from Mr Zoller, Mr Swift, Mr Bastemeyer, Mr Bourner and
others). This would be obviously detrimental to these companies.
220. Thirdly, for reasons previously given, it is clear that Mr Ravbar acted
in this way in an attempt to gain advantages for BERT, BEWT and
CIPQ, and in due course, the CFMEU, in the form of the payments that
would flow to those entities (directly or indirectly) if the CFMEU form
of EBA was signed by Smithbridge.
221. An offence may have been committed under s 415 of the Criminal
Code in relation to the incident on 28 February 2014. What was said
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of the penalty provisions in relation to the 8 July 2013 incident is
repeated here.
222. It is recommended that this Interim Report be referred to the
Queensland Director of Public Prosecutions in order that consideration
may be given to the prosecution of Mr Ravbar for an offence against s
415 of the Criminal Code.
Count 1 for Mr Close - July 2012
223. In July 2012 Mr Close telephoned Mr Smith. He told him that he
understood that Universal Cranes was nearly on its knees. He told him
he would keep his campaign against Universal Cranes up until it signed
an agreement with the CFMEU on CFMEU’s terms. Mr Close was
making a demand on Universal Cranes that it sign the CFMEU’s form
of EBA.
224. He coupled that demand with a threat, namely that he would keep his
campaign against Universal Cranes up. The ‘campaign’ to which Mr
Close was referring was one under which CFMEU officials had been,
up to that point, attending at worksites such as Indooroopilly,
Newstead, and the Transcity tunnel and stopping Universal Cranes
from operating. This is evident from the fact that such activity had
actually been occurring up to that point. It is also evident from the fact
that in this conversation Mr Close referred to Mr Smith being nearly on
his knees, and also said that he understood that the action being taken
by the CFMEU was illegal.
1471
225. Plainly the threat was to cause detriment to Universal Cranes, and
equally clearly, Mr Close’s intention was to secure a benefit for
BERT, BEWT, CIPQ and the CFMEU.
226. In these circumstances, Mr Close may have committed an offence
under s 415 of the Criminal Code in July 2012.
227. It is recommended that this Interim Report be referred to the
Queensland Director of Public Prosecutions in order that consideration
may be given to the prosecution of Mr Close for an offence under s
415 of the Criminal Code.
228. What was said above at paragraphs 213 and 214 on the question of
penalty is repeated.
Count 2 for Mr Close - 14 August 2012
229. On 14 August 2012 Mr Smith sent Mr Close an email asking him to
advise whether the CFMEU would lift its ban on Universal Cranes if
the company signed an EBA with the union on certain terms. Mr
Close responded ‘Will also want you to fix the membership if we are to
move forward…’.
230. By responding to Mr Smith’s particular request in these particular
terms, in the general context in which the response was written, Mr
Close was communicating to Mr Smith two demands. One was that
the CFMEU’s attack on Universal Cranes would continue until an
acceptable form of EBA had been signed. The other was that it would
1472
continue until Mr Smith had arranged for a larger number of
employees of Universal Cranes to become members of the CFMEU.
231. That communication necessarily also conveyed both and a threat to
cause detriment to Universal Cranes (the continuation of the CFMEU
treatment of Universal Cranes on work sites). Given the history of the
dealings between the individuals and the fact that the attack was
centered on securing an EBA on terms that included the BERT, BEWT
and CIPQ clause, and was now further expressly centered on
increasing CFMEU’s membership base, it is clear that Mr Close was
intending, by the communication, to gain a benefit for the CFMEU,
BERT, BEWT and CIPQ.
232. In these circumstances, Mr Close may have committed an offence
under s 415 of the Criminal Code on 14 August 2012.
233. It is recommended that this Interim Report be referred to the
Queensland Director of Public Prosecutions in order that consideration
may be given to the prosecution of Mr Close for an offence under s
415 of the Criminal Code.
234. What was said above at paragraphs 213 and 214 on the question of
penalty is repeated.
Count 3 for Mr Close - 3 September 2012
235. On 3 September 2012 Mr Schalck sent to Mr Close a copy of an email
he had previously sent to Mr Ingham, in which he proposed ‘a deal so
that we can have this ban lifted’, in which he set out a proposal for
1473
entering into an EBA on particular terms, and in which he had asked
whether ‘you will lift the ban on Universal Cranes’ if Universal Cranes
agreed to enter into such an EBA. Amongst other things, the proposed
form of EBA did not contain the CFMEU’s standard 2 hour clause.
236. Mr Close responded by email of 3 September 2012 saying ‘unless we
have our 2 hour clause untouched NO DEAL. Balls in your court. I
was in Sydney over the weekend and had a quick look to see if your
cranes were still at Bangaroo???? (sic)’.
237. By communicating in those terms, Mr Close conveyed a number of
things to Universal Cranes.
238. First, he demanded that Universal Cranes enter into an EBA on
particular terms.
239. Secondly, he indicated that unless that demand was satisfied, the
CFMEU’s attack on Universal Cranes would continue, and specifically
at the Barangaroo site. This is evident from the following combination
of matters.
(a) The background to this email: the CFMEU had been
attacking Universal Cranes on worksites because of its refusal
to enter into the union’s EBA.
(b) The ‘deal’ that Mr Close was rejecting in his email was the
one that Mr Schalck had proposed, namely the lifting of the
ban in return for an EBA in particular terms.
1474
(c) The reference to the Barangaroo site and the use of four
question marks, in the last sentence of Mr Close’s email,
constituted a veiled threat that if Universal Cranes did not
conform to the CFMEU’s demand, the next site affected
would be Barangaroo.
240. By behaving in this way, Mr Close was intending to gain an advantage
for the CFMEU, in the form of an EBA in the terms it wanted.
241. In these circumstances, Mr Close may have committed an offence
under s 415 of the Criminal Code on 3 September 2012.
242. It is recommended that this Interim Report be referred to the
Queensland Director of Public Prosecutions in order that consideration
may be given to the prosecution of Mr Close for an offence under s
415 of the Criminal Code.
243. What was said above at paragraphs 213 and 214 on the question of
penalty is repeated.
Breach of s 359 of the Criminal Code Act 1899 (Qld)
244. Section 359 of the Criminal Code (Qld) provides that any person who
threatens to cause any detriment to another with intent to compel him
to perform an act which he is lawfully entitled to abstain from doing is
guilty of a misdemeanor.
245. The maximum penalty for breach of s 359 is 5 years imprisonment.
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246. Messrs Ravbar and Close each may have contravened s 359 of the
Criminal Code.
247. Each one made the threats attributed to them above.169 Each threat was
one to cause detriment to one or more company in the Smithbridge
Group. Each threat was made deliberately with the intention of
compelling one or more company in the Smithbridge Group to enter
into an EBA with the CFMEU (and in some cases also compelling the
company to arrange for its employees to become CFMEU employees)
in circumstances where the entity in question was lawfully entitled to
refuse to do so.
248. It is recommended that this Interim Report be referred to the
Queensland Director of Public Prosecutions in order that consideration
may be given to the prosecution of Messrs Ravbar and Close in respect
of offences under s 359 of the Criminal Code.
Breach of s 343 of the Fair Work Act 2009 (Cth)
249. Section 343 of the Fair Work Act 2009 (Cth) provides that a person
must not organise or take, or threaten to organise or take, any action
against another person with the intent to coerce the other person, or a
third person, to exercise or not exercise, a workplace right.
169 See paragraphs 208, 209, 215, 216, 219, 220, 223-225, 229-231, 235, 236, 239.
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250. A person has a ‘workplace right’ if the person is, inter alia, entitled to
the benefit of, or has a role or responsibility under, a workplace law.170
‘Workplace law’ includes the Fair Work Act 2009 (Cth).171
251. There are two essential elements to s 343. First, a person must
organise or take, or threaten to organise or take, action against another
person. Secondly, the first person must have so acted with the intent to
coerce the other person, or a third person, to exercise or not exercise a
workplace right.
252. The action which officers of the CFMEU organised or took, or
threatened to organise or take, was as follows. Mr Ravbar and Mr
Close each threatened to take the threatened action which has been
dealt with already in the context of offences under the Criminal Code.
The organisers, namely Messrs Robinson, Sutherland and Loakes all
took the threatened action on worksites against a Smithbridge Group
company which resulted in the company being shut down on the site.
Mr Ravbar and Mr Close organised the taking of the threatened action.
That may be inferred from the supervisory role they played relative to
the organisers, the making of the threats, and the inherent
improbability that the organisers would have each acted of their own
accord in the particular way they did, either generally, let alone in the
particular overarching circumstances
253. The action so taken was undertaken for a specific purpose. It was to
try to coerce one or more Smithbridge Group companies to enter into
an EBA with the CFMEU in particular terms. So much is obvious
170 Fair Work Act 2009 (Cth), s 341. 171 Fair Work Act 2009 (Cth), s 341.
1477
from the conduct itself, the nature of the threats that were made, and
the surrounding circumstances.
254. One of the workplace rights which the Smithbridge Group companies
were being coerced not to exercise was the right to make an enterprise
agreement with its employees without the interference of the CFMEU.
Another was the right to seek to make an enterprise agreement on
terms other than those proposed by the CFMEU.172
255. Section 343 is a civil remedy provision under the Fair Work Act 2009
(Cth), which means that under s 539, action may be taken against the
CFMEU and its officers by an inspector in the Federal Court or the
Federal Circuit Court.
256. The maximum penalty is 60 penalty units, which equals $10,200. This
appears to be manifestly deficient for coercive conduct of the kind
described.
257. A breach of s 343 may have taken place.
258. It is recommended that this Interim Report be referred to
Commonwealth regulatory authorities in order that consideration may
be given to the prosecution of Mr Ravbar and Mr Close in respect of
breaches of s 343.
172 Fair Work Act 2009 (Cth), s 341.
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Breach of s 340 of the Fair Work Act 2009 (Cth)
259. Section 340 of the Fair Work Act 2009 (Cth) prohibits a union or union
officer from taking ‘adverse action’ against another person (a) because
the other person has a ‘workplace right’ or has or has not exercised that
right, or proposes to exercise or not exercise that right, or (b) to prevent
the exercise of that right by the other person.
260. A union takes ‘adverse action’ against a person if it, inter alia, takes
action that has the effect, directly or indirectly, of prejudicing the
person in the person’s employment or prospective employment.173 An
officer takes ‘adverse action’ in the same circumstances.
261. Hence a union will take adverse action against an employee of a
company where it prevents the employee’s employer from undertaking
paid work of a kind it would otherwise undertake to such an extent that
the employee’s employment is prejudiced. The same is true of an
officer.
262. This is because, although the action is primarily directed to the
employer (here Universal Cranes), it has a direct effect on its
employees, and either directly, or at least indirectly, prejudices the
employees’ employment. Their employment is prejudiced because the
employer earns less money than it otherwise would and thus has less
money and work opportunities to be able to keep the employee in
employment.
173 See Fair Work Act 2009 (Cth), Item 7 s 342(1).
1479
263. This is precisely the sort of action that the CFMEU and its officials
took against workers in the employ of Universal Cranes, some of
whom were CFMEU members. The CFMEU was attacking
employees, some of whom were its own members.
264. Mr Smith’s uncontested evidence was that Universal Cranes had to
start putting workers off because of the volume of work that the
company lost as a result of the union’s action in shutting down the
company on work sites up to October 2012.
265. Action up to that point had been taken by at least Mr Sutherland at Port
Connect, and CFMEU officials whose identities it has been impossible
to determine on various other sites. That action was organised by Mr
Ravbar and Mr Close.
266. That ‘adverse action’ was taken because of each and all of the
following:
(a) The employees of Universal Cranes had workplace rights,
namely the right to have an EBA with their employer on the
terms that were then in place, and the right to have an EBA on
terms other than those the CFMEU was looking to force upon
the company and its employees.
(b) The employees had exercised those rights.
(c) The CFMEU desired to prevent the employees from
exercising their right to continue to have an EBA with their
1480
employer on the existing terms, and to decline to have an
EBA on the terms the CFMEU was seeking to impose.
267. The CFMEU and each of Mr Ravbar, Mr Close and Mr Sutherland
may have breached s 340 of the Fair Work Act 2009 (Cth).
268. That provision is a civil remedy provision under the Fair Work Act
2009 (Cth), which means that under s 539, action may be taken against
the CFMEU and its officers by an inspector in the Federal Court or the
Federal Circuit Court.
269. The maximum penalty is 60 penalty units. Again, that appears to be
manifestly deficient.
270. It is recommended that this Interim Report be referred to the
Commonwealth regulatory authorities in order that consideration may
be given to proceedings against Mr Ravbar, Mr Close and Mr
Sutherland in respect of a breach of s 340.
Breach of s 228 of the Fair Work Act 2009 (Cth)
271. Section 228(1)(e) of the Fair Work Act 2009 (Cth) provides that a
bargaining representative for a proposed EBA must refrain from
capricious or unfair conduct that undermines freedom of association or
collective bargaining. The CFMEU may have failed to meet this
standard by acting in the manner described in these submissions. The
provision is not a civil remedy provision. It does not appear that any
punitive action can be taken against the CFMEU in respect of this
misconduct.
1481
Breach of s 45E of the Competition and Consumer Act 2010 (Cth)
272. Among other things, s 45E prohibits a person who has been
accustomed or is under an obligation to acquire goods or services from
another person, from making a contract or arrangement or arriving at
an understanding with an employee organisation which contains a
provision preventing or hindering the person from acquiring or
continuing to acquire goods or services from that other person,
provided the person or the other person (or both) are corporations.
273. Each of the Universal Cranes and Smithbridge customers identified
above174 were accustomed to acquiring services from Universal
Cranes.
274. As a result of pressure from officers of the CFMEU of the kind
described above175 those customers arrived at an arrangement or
understanding with the CFMEU and its officers that they would not
insist on acquiring the services of Universal Cranes and Smithbridge.
275. The fact that the builders were placed under pressure from the CFMEU
to act as they did does not detract from the proposition that an
arrangement or understanding was reached.176 They would not have
been happy with the understanding that had been arrived at (in that
their own preference would have been to continue to acquire the
services) but, rather than standing up to the CFMEU organisers and
174 See paras 48, 134, 162, 210 and 219. 175 See paras 44, 47, 74, 107, 110, 152, 157, 158, 160, 161, 162 and 172. .
176 See Gibbins v Australasian Meat Industry Employees’ Union (1986) 12 FCR 450, 470 (Smithers J).
1482
take on the risk of industrial action in response, they arrived at the
understanding nonetheless.
276. This understanding prevented or hindered those customers from
acquiring or continuing to acquire services from Universal Cranes and
Smithbridge.
277. The result is that each of the Universal Cranes and Smithbridge
customers may have contravened s 45E. The fact that the
understanding was entered into by the customers under pressure from
the CFMEU officials would be a strong factor militating against any
action being taken against them. No recommendation is made that
their role be referred to the Australian Competition and Consumer
Commission.
278. The CFMEU may have been a party to, or knowingly concerned in,
each of the contraventions by the customers. The CFMEU may have
been the other party to the arrangement or understanding and may have
had knowledge of all of the elements of the contraventions by the
customers. Accordingly, the CFMEU may be liable pursuant to s
76(1)(e) of the Competition and Consumer Act 2010 (Cth) in respect of
each contravention by a customer.
279. It is recommended that this Interim Report be referred to the Australian
Competition and Consumer Commission in order that consideration
may be given for the taking of proceedings against the CFMEU.
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280. The maximum pecuniary penalty payable by the CFMEU in respect of
each contravention by a customer in which its secondary participation
is established is $750,000.
Breach of s 45D of the Competition and Consumer Act 2010 (Cth)
281. Section 45D relevantly provides that a person must not, in concert with
a second person, engage in conduct that hinders or prevents a third
person from acquiring services from a fourth person where that
conduct is engaged in for the purpose, and would have or be likely to
have the effect of, causing substantial loss or damage to the business of
the fourth person.
282. Section 45DC provides that if two or more persons are officers of the
same organisation of employees and engage in conduct in concert with
each other, the organisation is taken to have engaged in that conduct in
concert with the employees unless the organisation proves otherwise.
283. Section 45D may have been contravened by Mr Ravbar, Mr Close,
Mr Sutherland, Mr Loakes and the CFMEU itself.
284. The conduct in question was that which resulted in the shutting down
of Universal Cranes and Smithbridge on worksites on which they were
operating. That conduct hindered or prevented the builders on those
sites from acquiring the services of Universal Cranes and Smithbridge.
285. That conduct comprised two elements. The first was a decision by Mr
Ravbar and Mr Close that such action would be taken and the giving of
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directions to organisers for that action to be taken.177 The second was
the taking of that action by those organisers (Mr Sutherland at the Port
Connect site, Mr Loakes at the Gladstone site, and unknown organisers
at the Newstead Transcity and Carindale sites). Senior management
and lower level organisers thereby acted in concert to achieve the shut
downs.
286. The purpose of the ban was to cause substantial, in the sense of not
insubstantial and not nominal,178 damage to the Universal Cranes and
Smithbridge businesses. Anything other than substantial damage
would be insufficient to cause Universal Cranes and its related entities
to enter into the EBAs as the CFMEU desired.
287. The shutting down of Universal Cranes and Smithbridge would have
the effect of causing substantial damage to those companies. The very
nature of the conduct was to prevent these companies from working for
their customers on commercial building sites. The CFMEU’s conduct
did have that effect.
288. The maximum pecuniary penalty payable by the CFMEU if its
contravention is established is $750,000.
289. The maximum pecuniary penalty payable by each of the CFMEU
officers if their respective contraventions are established is $500,000.
177 See paras 57 and 252 above. 178 See Building Workers’ Industrial Union of Australia v ODCO Pty Ltd (1991) 29 FCR 104, 140; A&L Silvestri Pty Ltd v CFMEU (2007) 165 IR 94; [2007] FCA 1047, [78].
1485
290. It is recommended that this Interim Report be referred to the Australian
Competition and Consumer Commission in order that consideration
may be given to the taking of proceedings against Mr Ravbar, Mr
Close, Mr Sutherland and Mr Loakes in respect of contraventions of s
45D.
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CHAPTER 8.8
HINDMARSH
Subject Paragraph
A - OVERVIEW 1
B - FEDERAL CIRCUIT COURT PROCEEDINGS: CFMEU SUBMISSIONS 3
C - FEDERAL CIRCUIT COURT PROCEEDINGS: COUNSEL ASSISTING’S SUBMISSIONS
5
D - CONCLUSION 6
A - OVERVIEW
1. This chapter deals with the conduct of officers of the Queensland
Branch of the Construction & General Division of the CFMEU
on the Brooklyn on Brookes project in Fortitude Valley,
Brisbane, towards Hindmarsh Construction Australia Pty Ltd
(Hindmarsh).
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2. The officers in question are Mr Ravbar (Branch Secretary), Mr
Hanna (Branch President), Mr Ingham (Assistant Secretary) and
Mr Bragdon (Organiser).
B - FEDERAL CIRCUIT COURT PROCEEDINGS: CFMEU
SUBMISSIONS
3. The CFMEU points out that there are proceedings before the
Federal Circuit Court to do with the Hindmarsh project. They are
entitled ‘Director, Fair Work Building Inspectorate v
Construction, Forestry, Mining and Engineering Union’. Among
the other respondents are Mr Ingham and Mr Bragdon. The file
number of the proceedings is BRG 318/2014. The proceedings
are set down for hearing on 1-11 June 2015. The CFMEU
submits that no finding should be made while this litigation about
the Hindmarsh project is before the Court.1
4. This submission goes too far, but is to be accepted up to a point.
C - FEDERAL CIRCUIT COURT PROCEEDINGS: COUNSEL ASSISTING’S SUBMISSIONS
5. Counsel assisting advanced the following submissions2
[T]he Commission should avoid making findings if there is a substantial risk that reporting on the case study will cause substantial injustice in the court proceeding.[3] The fact that the
1 CFMEU submissions, 14/11/14, Pt 8.8, paras 3-7. 2 Submissions in reply of counsel assisting, 25/11/14, paras 6-9, 12-13. 3
Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25 at 56, 95, 99 and 137.
1488
court proceeding will be heard by a judge, trained and able to exclude irrelevant matters from their consideration and make findings on the basis of the evidence presented before him or her, is a relevant consideration.[4]
The CFMEU’s submission goes too far by claiming that the matters traversed in Counsel Assisting’s submissions are the subject of the Federal Circuit Court proceeding.
The question of whether unauthorised industrial action was undertaken on site in April 2014, and if so, whether officers of the CFMEU organised such action, has been directly raised both in the Federal Circuit Court proceeding and in this Commission.
However, in respect of other issues, there is no material overlap, and no reason why the Commission should not proceed to address the matters that have been raised by Counsel Assisting.
These matters include:
(a) [certain] behaviour of Mr Hanna … [assessment of it] does not depend upon the accuracy or otherwise of the allegations made in the Federal Circuit Court proceeding;
(b) the credit findings in respect of Mr Ravbar’s evidence with respect to Mr Busch. The CFMEU remarkably contend in other parts of their submissions,[5] and for the purposes of addressing a different case study, that Mr Ravbar was an ‘impressive witness’. For a great many reasons that submission is ill-conceived. One of those reasons is the poor evidence he gave about Mr Busch, which reflects generally on his credit for reasons set out in Counsel Assisting’s Submissions in Chief. His evidence on this subject does not depend upon the accuracy or otherwise of the allegations made in the Federal Circuit Court proceeding;
(c) the credit findings in respect of Mr Bogunovic on the same subject. The shabby treatment by CFMEU representatives of individuals who speak out against the CFMEU should be a matter of great concern to this Commission, and Mr Bogunovic’s behaviour is an instance of this;
4 BLF Case (1982) 152 CLR 25 at 58 (Gibbs CJ), 100-101 (Mason J), 136 (Wilson J, Aickin J agreeing). 5
CFMEU submissions, Pt 8.7, para 63.
1489
(d) the findings in respect of Mr Ravbar’s evidence as to his attitude to the behaviour displayed on video footage of a demonstration at the site on 7 April 2014... While the events captured on the video relate to the matters the subject of the claims in the Federal Circuit Court proceeding, the conduct of the CFMEU official, captured on video, cannot credibly be denied, and dealing with the matter of principle and attitude that arises in the question and answer in paragraph 81 of Counsel Assisting’s submissions in chief does not require the Commission to express an opinion as to the proper legal characterisation of the effect of the conduct of that CFMEU officer captured on the video. The question of principle and attitude, the answer to which both affects Mr Ravbar’s credit and broader questions under consideration by this Commission, is whether the most senior official of the CFMEU in Queensland has any issue at all with another CFMEU official behaving in the way shown in the video in circumstances where there is an injunction in place.
…
In principle there would be no substantial risk of injustice in the Federal Circuit Court proceeding by this Commission expressing ultimate opinions as to what appears to be the position on the evidence before it in relation to these overlapping matters. The judge who hears that matter would be capable of deciding the matter on the evidence before him or her, and excluding from his or her mind the opinions expressed by the Commission.
Although in those circumstances the Commission would be at liberty to proceed to express such ultimate opinions at this time, there are a number of specific circumstances which would justify a decision by the Commission to decline to do so in its [I]nterim [R]eport, and on balance, Counsel Assisting consider that is the better approach to take. The particular circumstances influencing this view include the following:
(a) the Federal Court proceeding is fixed for a final hearing in the relatively near future;
(b) the Federal Circuit Court is in a position to make a determination on the overlapping issues that will have a substantive legal effect and bind the parties and individuals in question; and
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(c) if the Federal Circuit Court proceeding does not proceed to final hearing in June 2015, the Commission can reconsider its position and deal with the matter further at that time.
D - CONCLUSION
6. The submissions of counsel assisting are correct, but for one
matter. There is too close a link between what the video shows
and the Circuit Court proceeding. Hence the outcome would be,
save in respect of the remaining three matters identified by
counsel assisting, that desired by the CFMEU.
7. The problem is that the CFMEU elected to put on no submissions
in answer to the substance of what counsel assisting alleged in
their submissions in chief on all matters, including the three
referred to above. It would have been preferable for the CFMEU
to have adopted one of the following courses: to adopt a fall-back position of dealing with all of counsel assisting’s
submissions in chief as a matter of substance; or to give notice
before 14 November 2014 of its precise position, so that
consideration could be given by all concerned to receiving its
submissions only on the three matters. But it indicated its stance
only on 14 November 2014, and there has been too little time for
the latter course to be worked through.
8. This is an unsatisfactory state of affairs. The CFMEU ran a risk
of being told that its failure to address matters of substance might
be met with the retort: ‘You gambled, and you lost’.
1491
9. However, since the Commission’s reporting date has been
extended to 31 December 2015, there will be time to return to the
Hindmarsh problem if the Federal Circuit Court proceeding is
adjourned or concluded within a reasonable time. Hence the
submissions in chief of counsel assisting on Hindmarsh will not
be dealt with now. If and when they are dealt with, they will be
dealt with in the light of any submissions the CFMEU desires to
make on the substantive merits.
1492
CHAPTER 8.9
CFMEU TREATMENT OF FAIR WORK BUILDING INSPECTORS
Subject Paragraph
A - SUMMARY 1
B - RELEVANT FACTS 5
FWB Inspectors 5
Events at the Ibis Hotel site in Adelaide 8
Events at the Barangaroo site in Sydney: Thursday 24 July 2014 27
Events at the Barangaroo site in Sydney: Friday 25 July 2014 42
Events at the Barangaroo site in Sydney: Monday 28 July 2014 62
C - CONCLUSIONS 75
Adelaide: Section 149 of the Criminal Code (Cth) 76
Adelaide: assault 83
Barangaroo 102
Adelaide: Section 500 of the Fair Work Act 2009 116
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A - SUMMARY
1. Section 59 of the Fair Work (Building Industry) Act 2012 (Cth)
provides for the appointment of inspectors (FWB Inspectors).
Their duty is to conduct investigations in building matters,
including breaches of that Act. This chapter concerns the
conduct of officers of the CFMEU towards FWB Inspectors.
2. Two case studies are considered. The first study concerns events
in early May 2014 at the Ibis Hotel construction site in Adelaide.
The second concerns events in late July 2014 at the Barangaroo
construction site in Sydney. On each occasion FWB Inspectors
were attending the site to investigate whether workers were
engaged in industrial action in contravention of the Fair Work
Act 2009 (Cth). The findings made are those which counsel
assisting submitted should be made.
3. On 1 May 2014 at the Ibis Hotel work site in Adelaide, Mr
Perkovic acted in a violent and threatening way towards an FWB
Inspector, Mr Flynn. He deliberately set out to frighten and
intimidate Mr Flynn while Mr Flynn was in the course of
carrying out his functions as an inspector. By so acting Mr
Perkovic may have committed criminal offences against s 149.1
of the Criminal Code 1995 (Cth), may have committed a criminal
offence against s 20(1) of the Criminal Law Consolidation Act
1935 (SA) and may have carried out a common law assault on
Mr Flynn.
1494
4. In late July 2014 a number of CFMEU officers, namely Mr Luke
Collier, Mr Michael Greenfield, Mr Rob Kera and Mr Brian
Parker, engaged in aggressive and intimidatory conduct against a
number of FWB Inspectors who were working at the Barangaroo
site in Sydney. By so acting they may have committed offences
under s 149.1 of the Criminal Code Act 1995 (Cth).
B - RELEVANT FACTS
FWB Inspectors
5. FWB Inspectors are appointed to their position by the Director of
the Fair Work Building Inspectorate pursuant to s 59 of the Fair
Work (Building Industry) Act 2012 (Cth).
6. Under s 59C of that Act, Inspectors are invested with the same
powers as an inspector appointed under the provisions of that Act
in respect of a matter relating to a building industry participant.
7. Those powers may therefore be exercised, for example, for the
purposes of determining whether that Act or any enterprise
agreement has been complied with in a matter relating to a
building industry participant: see s 706(1) of the Act.
Events at the Ibis Hotel site in Adelaide
8. Seamus Flynn is an FWB Inspector. At 7.43am on 1 May 2014
he received a call on his mobile from Rob Kamminga, the site
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manager for Watpac Limited on the Ibis Hotel construction site,
122 Grenfell Street, Adelaide.1
9. Mr Kamminga advised Mr Flynn that there were six CFMEU
officials on site, that they did not provide permits or right of entry
notices as required, and that they ignored his requests to leave.2
10. Soon afterwards Mr Flynn and Angeliek Peters, a fellow
inspector, attended the Ibis Hotel construction site to investigate.3
11. Both signed the visitors’ register.4 On doing so Mr Flynn noted
that the register recorded that at 7.15am that day the following
people had signed in: ‘Luke from the CFMEU, T. Jarrett, John P,
A. Sloane, Brendan Pitt and M. McDermott.’5
12. After signing in, Mr Flynn and Ms Peters were met by Mr
Kamminga. Mr Kamminga advised that there were two groups
of three CFMEU officials roaming the building site. He
confirmed that they had not provided permits or right of entry
notices and had refused to leave when asked to do so.6
1 Seamus Flynn, witness statement, para 8. 2 Seamus Flynn, witness statement, para 9. 3
Seamus Flynn, witness statement, para 11. 4 Seamus Flynn, witness statement, para 15. 5
Seamus Flynn, witness statement, para 16. 6 Seamus Flynn, witness statement, para 17.
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13. Mr Kamminga accompanied Mr Flynn and Ms Peters to level 13
of the building. There they encountered several CFMEU
officials.7
14. Mr Kamminga approached Anthony Sloane, one of the CFMEU
officials, and asked him to show his permit. When Mr Sloane did
not reply, Mr Kamminga stated: ‘You all need to leave site. You
don’t have notices.’8 Despite this request, the CFMEU officials
did not leave the site.9 They were trespassers.
15. Mr Kamminga, Mr Flynn and Ms Peters left down the fire escape
stairs to attempt to locate the other three CFMEU officials. After
checking levels 12, 11, 10, 9, 8 and 7, they reached level 6.10
16. Just as they entered the hallway, they noticed three CFMEU
officials coming out of room 616.11 The officials were Mick
McDermott, Brendan Pitt and John Perkovic.12 Mr Flynn took
photographs of them.13
7 Seamus Flynn, witness statement, para 27 and 37. 8 Seamus Flynn, witness statement, para 39. 9
Seamus Flynn, witness statement, para 40. 10 Seamus Flynn, witness statement, para 43. 11
Seamus Flynn, witness statement, para 45. 12 Seamus Flynn, witness statement, para 46; Seamus Flynn, 2/9/14, T:9.25-27. 13
Seamus Flynn, witness statement, para 46.
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17. Mr Kamminga said: ‘I want to see your right of entry notice and
your permits.’14
18. Mr Flynn states that he heard a response that he believed to be
from Mr McDermott: ‘Go fuck yourself.’15 Mr Flynn then heard
another response from Mr Perkovic: ‘Fuck off, grow some
balls.’16
19. The inspectors and Mr Kamminga followed the three CFMEU
officials down the hallway.17 Mr Flynn continued to take
photographs of the CFMEU officials.18
20. On noticing this, Mr Perkovic moved towards Mr Flynn and
stated: ‘You fucking maggot, what are you taking a photo of me
for, you piece of shit?’19
21. Mr Flynn describes Mr Perkovic being ‘directly in front of me,
face to face, and I could feel his body on my chest and stomach
region.’20
22. Among other insults in this exchange (as video recorded by Ms
Peters21), Mr Perkovic said to Mr Flynn: ‘…the piece of shit.
14 Seamus Flynn, witness statement, para 49. 15 Seamus Flynn, witness statement, para 50. 16
Seamus Flynn, witness statement, para 51. 17 Seamus Flynn, witness statement, para 54. 18
Seamus Flynn, witness statement, paras 56 and 57. 19 Seamus Flynn, witness statement, para 58. 20
Seamus Flynn, witness statement, para 59.
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You fucking coward. I’d fucking take you to school, you fucking
piece of shit.’22
23. During this exchange, Mr Flynn’s evidence is that Mr Perkovic
was pushing him backwards with his stomach23 and exerting his
bodyweight against him.24 Despite the fact that Mr Flynn said,
‘Don’t touch me’25 and ‘Get away from me, get away from
me,’26 Mr Perkovic continued to push against Mr Flynn so as to
cause Mr Flynn’s shoulder satchel to fall from his shoulder.27 Mr
Flynn’s evidence is that whilst this occurred, Mr Perkovic said:
‘You fucking piece of shit, you’re going to have a heart attack.
Look at you, you’re shitting yellow you piece of shit…’28
24. After the incident, Mr Flynn attempted to telephone the State
Director of Fair Work Building and Construction, Mark Temple,
to report the incident.29
25. Mr Flynn witnessed the six CFMEU officials leave the site
within the next five minutes.30
21 Seamus Flynn, witness statement, para 64. 22 Flynn MFI-1, video and transcript of Video Transcript, 1/5/14. 23
Seamus Flynn, witness statement, para 61. 24 Seamus Flynn, 2/09/14, T:9.45-47. 25
Seamus Flynn, witness statement, para 65. 26 Seamus Flynn, witness statement, para 68. 27
Seamus Flynn, witness statement, para 66. 28 Seamus Flynn, witness statement, para 67. 29
Seamus Flynn, witness statement, para 74. 30 Seamus Flynn, witness statement, para 79.
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26. Later that day, Mr Flynn and Mr Temple attended the Hindley
Street Police Station and reported the assault to Senior Constable
Nicola Buckle.31 Was this the legitimate use by the CFMEU of
its industrial muscle? Or was it, in its descent from intelligible
communication to the monotony of violent obscenity, the triumph
of barbarism?
Events at the Barangaroo site in Sydney: Thursday 24 July 2014
27. On 24 July 2014 Matthew Barr, an FWB Inspector, was informed
of industrial action at the Barangaroo South construction project.
He was told that the CFMEU had blockaded the entrance to the
project.32
28. The head contractor at the project is Lend Lease Building Pty
Ltd. The project is situated at Hickson Road, Barangaroo,
NSW.33
29. At about 8.20am Mr Barr asked Julie Siciliano and Jared
O’Connor, two other FWB Inspectors, to attend the site to
investigate.34
30. Mr Barr then telephoned Eric Hensley, Lend Lease’s Industrial
Relations Officer, to discuss what had occurred at the project.35
31 Seamus Flynn, witness statement, para 93. 32 Matthew Barr, witness statement, para 8. 33
Matthew Barr, witness statement, para 8. 34 Matthew Barr, witness statement, para 9.
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31. Mr Hensley stated to Mr Barr:
At 6.15am the CFMEU arrived at the project and started to block the gates. A mass meeting was held offsite and they voted to stop work until Monday. The union and the men have left.36
32. Ms Siciliano and Mr O’Connor arrived on site at about 9:00am.37
They observed CFMEU officers present on site. Those persons
included Brian Parker, the State Secretary of the CFMEU
Construction and General Division NSW, and a number of other
officials and organisers, including Richard Auimatagi, Darren
Greenfield, Michael Greenfield, Darren Taylor, Luke Collier,
Tony Sloane and Rob Kera.38
33. The song ‘Who let the dogs out’ was being played over a loud
hailer.39
34. Ms Siciliano and Mr O’Connor entered the site office. As they
were speaking to the receptionist, Mr O’Connor observed Mr
Collier come up to the window of the office and mouth the words
at him: ‘You’re a fucking grub’ and ‘fucking dog.’40
35. Several unidentified CFMEU officials then came up onto the
veranda outside the office and stood with their backs to the
35 Matthew Barr, witness statement, para 10. 36 Matthew Barr, witness statement, para 10. 37
Jared O’Connor, witness statement, para 7. 38 Jared O’Connor, witness statement, paras 8-17. 39
Jared O’Connor, witness statement, para 21. 40 Jared O’Connor, witness statement, para 23.
1501
window. Someone outside was shaking the door.41 A worker
inside the building was trying to leave, but the receptionist told
him ‘Don’t go out that door, the union are trying to get in.’42
36. Ms Siciliano and Mr O’Connor left the site office and started
walking across the road. As they were doing so, Mr Collier said
to Mr O’Connor: ‘You’re a fucking grub, why are you here, go
away. You’re lower than a paedophile you grub.’43
37. At about 9.30am Mr Barr asked Terry Morton and Veronica
Tadros, fellow FWB Inspectors, to accompany him to the project.
38. At about 9:45am, Mr Barr, Mr Morton and Ms Tadros were
walking toward the main entrance of the site and observed a
group of people standing on the path on Hickson Road in front of
the main entrance to the project.44 Mr Barr also observed Mr
O’Connor and Ms Siciliano standing opposite the entrance,
speaking to the police. While Mr Barr stood opposite to the site
entrance, he identified a number of CFMEU officials, namely
Michael Greenfield, Brian Parker and Luke Collier.45
41 Jared O’Connor, 2/09/14, T:28.11. 42 Jared O’Connor, witness statement, para 25. 43
Jared O’Connor, witness statement, para 26. 44 Matthew Barr, witness statement, para 13. 45
Matthew Barr, witness statement, para 14.
1502
39. That afternoon, Mr Barr signed a record of decision to investigate
whether the CFMEU officers and workers on the project had
breached the Fair Work Act 2009.46
40. The Fair Work Commission issued return to work orders under s
418 of the Fair Work Act 2009.47
41. Mr Barr briefed other inspectors about a plan to return on 25 July
2014 to observe a mass meeting that had been planned between
the CFMEU and workers and to obtain evidence should there be
allegations of organising or engaging in conduct in breach of the
orders.48
Events at the Barangaroo site in Sydney: Friday 25 July 2014
42. At about 6am on 25 July 2014 Mr Barr and Mr O’Connor
returned to the site. They saw 80 workers and a number of
CFMEU officials, including Mr Parker, Mr Darren Greenfield,
Mr Michael Greenfield and Mr Collier.49 Police officers were
also present. When Mr Parker saw Mr Barr arrive he said: ‘For
fuck’s sake.’50 Darren Greenfield was standing in front of the
turnstiles into the site with his arms folded.51 Michael Greenfield
46 Matthew Barr, witness statement, para 22. 47 Matthew Barr, witness statement, para 23. 48
Matthew Barr, witness statement, para 23. 49 Matthew Barr, witness statement, paras 25 and 26. 50
Matthew Barr, witness statement, para 30. 51 Matthew Barr, witness statement, para 32.
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was around with a hoodie jumper on over his head.52 Mr Collier
was handing out fliers to workers.53
43. Mr Barr heard Mr Parker tell the workers that they would hold a
meeting at 6.30am across the road.54
44. Chris Blanchard, the Construction Manager from Lend Lease,
told Mr O’Connor that on the previous day the union had shut the
sliding door in front of the turnstiles and had not allowed anyone
to pass.55
45. Mr Barr asked Ms Tadros to take photos of the CFMEU officials
standing at the site entrance.56
46. As Ms Tadros was about to take a photo with her phone, Mr
Parker said: ‘You can take a photo of me? I’ll fucking take a
photo of you.’57 Robert Kera stood in front of Ms Tadros,
putting his back approximately five centimetres away from her
and forcing her to move, as she felt his close proximity to her to
be intimidating.58 Mr Parker then took a photo of this.59
52 Matthew Barr, witness statement, para 32. 53 Matthew Barr, witness statement, para 33. 54
Matthew Barr, witness statement, para 31. 55 Matthew Barr, witness statement, para 35. 56
Matthew Barr, witness statement, para 36. 57 Veronica Tadros, witness statement, para 31. 58
Veronica Tadros, witness statement, para 31. 59 Veronica Tadros, witness statement, para 31; Matthew Barr, witness statement, para 37.
1504
47. Mr Collier used a megaphone to call workers into a meeting,
saying: ‘Everyone, there is a meeting across the road... that
doesn't include the FWBC grub in the fluoro.’ Mr Barr
understood Mr Collier to be referring to him as he was wearing a
fluoro orange jacket.60
48. Speaking through the megaphone, Mr Collier pointed to Mr
O’Connor and broadcasted his name and mobile telephone
number to the group and invited workers to call him and let him
know what they thought.61 By this time, there were 150 to 200
workers present.62
49. Mr O’Connor’s evidence is that:
I was in a bit of shock. My name was mentioned in front of several
hundred workers and also my phone number. So, yes, it was a little
bit - I thought it was just an intimidation tactic.63
50. Mr O’Connor heard Darren Greenfield yell out: ‘They are
nothing but dogs,’ while he pointed to Mr O’Connor and Mr
Barr.64
51. Mr Parker addressed the meeting. Mr Parker said that Fair Work
Building and Construction was present so the workers had to be
60 Matthew Barr, witness statement, para 41; Matthew Barr, 2/09/14, T:16.16-18. 61 Matthew Barr, witness statement, para 42; Matthew Barr, 2/09/14, T:17.1-3; Jared O’Connor, witness statement, para 55; Jared O’Connor, 2/9/14, T:29.2-5. 62
Matthew Barr, witness statement, para 42. 63 Jared O’Connor, 2/09/14, T:29.12-16. 64
Jared O’Connor, witness statement, para 58.
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careful and did not have to answer questions. He also said that
the workers should have legal representation and that the union
would provide it. Mr Collier yelled out: ‘They are dogs, don’t
talk to dogs!’65
52. Mr Parker subsequently addressed the workers on the
megaphone. He said that ‘Fair Work Commission’ had issued
orders the previous day and a fine of $11,000. He said that the
workers had been notified by their employers to return to work.
He further said ‘FWBC and employers are intimidating you. I
can’t force you to go back to work… It is up to you what you do
from here.’66
53. Mr Kera pointed at Mr O’Connor and Mr Barr and said: ‘That’s
the FWBC. They are here to prosecute workers. We have the
right to go to work and not to be prosecuted like dogs. This is
Australia!’67
54. Mr Parker subsequently said: ‘If you do return to work…I have
to be very careful as this is being recorded. It’s intimidation. I
have to wrap up the meeting. I have no problem going to jail for
it.’68
65 Matthew Barr, witness statement, para 47. 66 Matthew Barr, witness statement, para 50. 67
Matthew Barr, witness statement, para 56; Matthew Barr, 2/09/14, T:22:25-33; Matthew Barr, 2/09/14, T:17.42 to T:18.8. 68
Matthew Barr, witness statement, para 62.
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55. Michael Greenfield was standing close to Mr Barr and staring at
him. Mr Barr then observed Michael Greenfield say to Mr
Blanchard: ‘Are you the Lend lease intimidation squad?’69
56. Mr Collier stood about five metres away from Mr Barr and Mr
O’Connor and said: ‘We’re starting a dog wash over here.’ Mr
Barr understood this to mean that Mr Collier was referring to him
and Mr O’Connor as dogs.70
57. Darren Greenfield said to Michael Greenfield: ‘Don’t stand too
close Mick, they have fleas. They’re dogs.’71
58. Michael Greenfield said to Mr Barr: ‘I hope your kids work in
the construction industry then they will come running to us.’ Mr
Barr’s evidence is that he took this comment as a personal threat
that Michael Greenfield would harm his children if they worked
in the construction industry and that this threat was meant to
intimidate him.72
59. Darren Greenfield then walked past Mr Barr and Mr O’Connor
and said: ‘I have a can of PAL in the boot of the car, they can eat
it for breakfast.’73 PAL is a well-known brand of dog food.
69 Matthew Barr, witness statement, para 74. 70 Matthew Barr, witness statement, para 77. 71
Matthew Barr, witness statement, para 78. 72 Matthew Barr, witness statement, para 79. 73
Matthew Barr, witness statement, para 81.
1507
60. Mr O’Connor, Mr Blanchard and Mr Barr subsequently
proceeded to cross the road to the site office next to the site
entrance. As they were crossing, Mr Collier said through the
megaphone: ‘There goes the fuckin grubs… They’re leaving cos
the police are gone. Don’t let a car hit ya!’74 Mr Barr’s evidence
is that there was still a significant number of workers present at
this time.75
61. Mr Barr stated:76
I felt that the abuse that O’Connor and I received from the Union Officials, especially COLLIER and M GREENFIELD, whilst at the meeting and at the Site Entrance was targeted at us to intimidate us as representatives of [Fair Work Building and Construction] and to stop us from doing our job effectively. I did not appreciate having personal threats made to me and have been concerned about this since this day. I believe that a Commonwealth Official such as myself should be able to carry out their role without being subject of [sic] constant and aggressive abuse.
Events at the Barangaroo site in Sydney: Monday 28 July 2014
62. On 28 July 2014, at about 5:45am, the following FWB Inspectors
attended the construction site: Mr Barr, Mr O’Connor, Ms
Tadros, Mr Pascoe, Mr Trent Roll and Mr David Shao. When
they arrived, Mr Collier, Michael Greenfield and Mr Auimatagi
were standing at the site entrance. There were also about 50
workers in the vicinity.77
74 Matthew Barr, witness statement, para 85. 75 Matthew Barr, 2/9/14, T:18.46-47. 76
Matthew Barr, witness statement, para 88. 77 Matthew Barr, witness statement, paras 92 and 93.
1508
63. As Mr Pascoe walked towards Mr Barr, Mr Collier took a swig of
water from a bottle and spat it in the direction of Mr Pascoe’s
feet.78
64. As Ms Tadros walked past the site entrance, Mr Collier said
‘fucking slut.’79 Michael Greenfield called Ms Tadros and Mr
Pascoe ‘fucking dogs’ and asked Mr Pascoe if he had brought his
wife to protect him.80
65. Ms Tadros’s evidence is that: ‘I felt quite intimidated by the
verbal abuse that I had received at that point.’81
66. Mr Barr gave evidence that Michael Greenfield said to Mr
Blanchard: ‘I hope you brought your knee pads, you’re going to
be sucking off those dogs all day.’82
67. Mr Barr noticed that Mr Parker, Darren Greenfield, Mr
Auimatagi and Mr Kera were also at the site entrance.83
68. Mr Collier then walked past Mr O’Connor, Mr Blanchard and Mr
Barr to a car and took out a megaphone. He used this to blast a
78 Matthew Barr, witness statement, para 94. 79 Veronica Tadros, witness statement, para 54. 80
Adam Pascoe, witness statement, para 26. 81 Veronica Tadros, 2/9/14, T:34.31. 82
Matthew Barr, witness statement, para 96. 83 Matthew Barr, witness statement, para 98.
1509
wailer sound centimetres away from Mr O’Connor’s and Mr
Barr’s ears. Mr Collier walked away laughing.84
69. By about 6.30am, around 150 workers had gathered across the
road where the meeting was held the previous Friday. Mr Parker
addressed them.85
70. Mr Collier said to Mr O’Connor: ‘You think all I got is your
phone number?’ Mr O’Connor turned around to look at Mr
Collier who was standing about three metres away. Mr Collier
said: ‘What the fuck are you looking at?’ Mr Collier then spat at
Mr Barr’s feet and said in a menacing voice: ‘Lick it up you
fuckin’ dog.’86
71. Mr Barr stated:
When Collier said this it was said with an aggressive tone. I felt like COLLIER was making personal threats against O’Connor and I and that this behaviour was assault. I sensed hatred in Collier’s voice and actions of [sic] O’Connor and me. I immediately became concerned about the safety of O’Connor and myself and looked around to see who was standing nearby.87
72. Michael Greenfield came within five metres of Mr Barr and Mr
O’Connor and said: ‘Why don’t you go up the front you fuckin’
84 Matthew Barr, witness statement, para 101. 85 Matthew Barr, witness statement, paras 105 and 106. 86
Matthew Barr, witness statement, para 113 and 115. 87 Matthew Barr, witness statement, para 116.
1510
dog.’88 Mr Barr observed there to be about 300 workers present
at this time.89
73. Mr Parker asked the workers to vote with their hands if they
wanted the union to come on site for a stop work meeting. Mr
Barr observed about fifty hands rise, including that of Michael
Greenfield.90
74. Soon after, the meeting ended and the police arrived.91
C - CONCLUSIONS
75. The relevant legislative provisions are set out below. In applying
them to the facts, as submitted by Mr Parker, it is necessary to
bear in mind the seriousness of the allegations and the possible
consequences of any findings.92
Adelaide: Section 149 of the Criminal Code (Cth)
76. Section 149.1(1) of the Criminal Code (Cth) provides:
(1) A person is guilty of an offence if:
(a) the person knows that another person is a public official; and
88 Matthew Barr, witness statement, para 118. 89 Matthew Barr, witness statement, para 120. 90
Matthew Barr, witness statement, paras 121 and 122. 91 Matthew Barr, witness statement, paras 123 and 124. 92
Submissions on behalf of Brian Parker, 21/11/14, para 6: see Briginshaw v Briginshaw (1938) 60 CLR 336.
1511
(a) the first-mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and
(b) the official is a Commonwealth public official; and
(c) the functions are functions as a Commonwealth public official.
Penalty: Imprisonment for 2 years.
77. As to the first of those elements:
(a) a person is considered to have knowledge of a circumstance if
that person is aware that it exists or will exist in the ordinary
course of events;93
(b) it is not necessary to prove that the person knew that the other
person was a Commonwealth public official, or that the
functions were Commonwealth public functions;94 and
(c) it is immaterial whether the person was aware that the official
was performing the official’s functions.95
78. Mr Flynn is a Commonwealth public official, and was performing his
function as such during the course of his attendance at the Ibis Hotel
site on 1 May 2014.
79. Mr Perkovic knew this to be so. Mr Flynn and Ms Peters both had
their identification cards visible.96 Mr Flynn already knew
93 Criminal Code (Cth), s5.3 94 Criminal Code (Cth), s149.1(2) 95
Criminal Code (Cth), s149.1(3) 96 Seamus Flynn, witness statement, para 24.
1512
Mr McDermott and Mr Pitt.97 It is obvious from Mr Perkovic’s
behaviour that he knew what role Mr Flynn was performing on
that day and that Mr Flynn was an FWB Inspector.
80. When Mr Flynn attempted to document the incidents he was
investigating by taking photographs, Mr Perkovic acted towards
Mr Flynn in the manner detailed above. He was seeking to
intimidate and bully Mr Flynn, in a particularly aggressive
manner, in order to frighten him away from the task at hand.
81. Mr Perkovic therefore may have committed an offence under s
149.1 of the Criminal Code Act 1995 (Cth).
82. It is recommended that this Interim Report be referred to the
Commonwealth Director of Public Prosecutions in order that
consideration may be given to the prosecution of Mr Perkovic in
respect of an offence against s 149.1 of the Criminal Code (Cth).
Adelaide: assault
83. Intentionally or recklessly threatening force so as to cause
another person to fear imminent and unlawful physical violence
constitutes an assault. It is an offence punishable under the laws
of South Australia in four ways.
84. First, under s 20(1)(a) of the Criminal Law Consolidation Act
1935 (SA), an assault will be occasioned when a person
97 Seamus Flynn, witness statement, para 46.
1513
intentionally applies force (directly or indirectly) to another
person (the victim) without the consent of the victim.
85. Secondly, s 20(1)(b) of the same Act makes it unlawful for a
person intentionally to make physical contact (directly or
indirectly) with the victim without the victim’s consent, knowing
that the victim might reasonably object to the contact in the
circumstances (whether or not the victim was at the time aware of
the contact).
86. It is well established at common law that any touching of another
person, however slight, may amount to a battery.98
87. Mr Flynn gave evidence that during the altercation in the
hallway, he could feel Mr Perkovic exerting his body weight
against his chest and stomach and that Mr Perkovic used his
stomach to push Mr Flynn backwards approximately six inches.
He gave evidence that Mr Perkovic later pushed him with his
stomach again so as to cause his satchel to fall from his shoulder.
This conduct is sufficient to establish the requisite direct
application of physical force for the purposes of an offence under
s 20(1).
88. It is clear from the nature of Mr Perkovic’s words and actions, as
captured on video, that he intended to apply physical force to Mr
Flynn. Not only was he deliberately moving towards Mr Flynn in
98 Collins v Wilcock [1984] 3 All ER 374; Boughey v The Queen (1986) 161 CLR 10, 25.
1514
an intimidating fashion, but he was hurling verbal abuse at him
and threatening to take Mr Flynn ‘to school.’
89. Obviously Mr Flynn was not consenting to Mr Perkovic’s
conduct. Mr Flynn said ‘Don’t touch me’ and ‘Get away from
me, get away from me’.
90. Mr Perkovic may have committed an offence under s 20(1) of the
Criminal Law Consolidation Act 1935 (SA).
91. It is recommended that this Interim Report be referred to the
South Australian Director of Public Prosecutions in order that
consideration may be given to the prosecution of Mr Perkovic in
respect of an offence against s 20(1) of the Criminal Law
Consolidation Act 1935 (SA).
92. Thirdly, s 20(1)(e) of the Criminal Law Consolidation Act 1935
(SA) makes it unlawful for a person to accost or impede another
in a threatening manner without consent.
93. It is plain from the description of Mr Perkovic’s conduct set out
in an earlier part of these submissions that he may have
committed this offence.
94. It is recommended that this Interim Report be referred to the
South Australian Director of Public Prosecutions in order that
consideration may be given to the prosecution of Mr Perkovic in
respect of an offence against s 20(1)(e) of the Criminal Law
Consolidation Act 1935 (SA).
1515
95. Fourthly, assault will be established at common law where the
following elements are satisfied beyond a reasonable doubt:
(a) the accused commits an act that causes another person to
apprehend immediate and unlawful personal violence;99
(b) he or she does so without the other person’s consent; 100
and
(c) his or her conduct was either intentional or reckless.101
96. The offence of assault does not require actual violence. It is
sufficient that the victim reasonably believes that they he or she
is at risk of immediate unlawful violence.102 The victim’s fear
must be of immediate violence, rather than violence that may be
committed at some time in the future.103
97. The requisite apprehension may exist even if the accused does
not intend to carry out the threat.104 It is also not necessary that
99 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, 444; Macpherson v Beath (1975) 12 SASR 174, 177; McIntyre v R [2009] NSWCCA 305, [40]. 100
Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, 444. 101 Vallance v R (1961) 108 CLR 56; Macpherson v Brown (1975) 12 SASR 184; R v Venna [1976] QB 421. 102
Zanker v Vartzokas (1988) 35 A Crim R 314. 103 R v Knight (1988) 35 A Crim R 314. 104
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, 114; R v Mostyn (2004) 145 A Crim R 304, 316.
1516
the fear of violence into which the accused deliberately puts the
victim should be a fear of violence from the accused.105
98. Again, the description of Mr Perkovic set out earlier indicated
that his conduct was both intentional, and undertaken without Mr
Flynn’s consent. It was behaviour of a kind that led Mr Flynn to
reasonably believe that he was at risk of immediate violence.
99. It is recommended that this Interim Report be referred to the
South Australian Director of Public Prosecutions in order that
consideration may be given to the prosecution of Mr Perkovic in
respect of the common law offence of assault.
100. The CFMEU submitted in relation to Mr Perkovic that it was
outside the function of the Commission to determine whether Mr
Perkovic had committed any offence, to determine whether he
should be prosecuted and to make findings concerning any
alleged breach of the law.106 The summary of the evidence and
conclusions from it does not do any of these things. Nor do the
recommendations that the Interim Report be referred to the South
Australian Director of Public Prosecutions in order that
consideration may be given to the prosecution of Mr Perkovic for
various offences.
101. The CFMEU also submitted that the matter has been reported by
an inspector to the South Australian police and that Mr Perkovic
105 Macpherson v Beath (1975) 12 SASR 174, 177. 106 Submissions on behalf of the CFMEU, 14/11/14, Pt 8.9, para 4.
1517
has not been advised of the outcome of any police investigation.
For the sake of considering the submission, let it be assumed that
these propositions, which are not in evidence, are correct. The
CFMEU submitted that in the light of what it called ‘an apparent
police investigation’ it would not be right for the Interim Report
to ‘make any findings or express any opinion about this
matter’.107 Since legal proceedings alleging breaches of s 149 of
the Criminal Code or s 20 of the Criminal Law Consolidation Act
have not been instituted, there is no risk of a contempt of court in
these respects. Again, what appears above makes no findings of
criminal guilt. It does no more than summarise what can be seen
on the video and what is stated in other evidence, and
recommend that the responsible authorities consider whether a
prosecution should be brought.
Barangaroo
102. The events described by the FWB Inspectors on the Barangaroo
site indicate that the CFMEU officials on site at the time knew
that they were inspectors, and were attending the site in the order
to perform their official function in the investigation of alleged
industrial action.
103. The following conduct by CFMEU officials during the course of
the Barangaroo incidents described above is properly
characterised as conduct which obstructed, hindered, intimidated
107 Submissions on behalf of the CFMEU, 14/11/14, Pt 8.9, para 7.
1518
or resisted the performance by the FWB Inspectors in the
performance of their functions:
(a) Mr Collier directed offensive language and abusive
comments towards Mr O’Connor and Ms Siciliano on 24
July 2014. Mr O’Connor perceived Mr Collier’s conduct
as ‘an attempt to intimidate or scare us due to the level of
aggression he was showing.’108
(b) Mr Collier subjected the FWB Inspectors to verbal abuse
on 25 July 2014. Mr O’Connor perceived Mr Collier‘s
broadcast of his name and mobile telephone number to a
group of approximately 150 to 200 striking workers as an
‘intimidation tactic.’109
(c) Mr Kera stood very close to Ms Tadros, putting his back
approximately five centimetres away from her so as to
obstruct her when attempting to take photographs on 25
July 2014.110
(d) Mr Parker told workers that the FWB Inspectors were
trying to intimidate them by showing up on the site on 25
July 2014, and in the process misleading the workers about
the important official function the FWB Inspectors were
108 Jared O’Connor, witness statement, para 28. 109 Jared O’Connor, 2/09/14, T:29.13-16. 110
Veronica Tadros, witness statement, para 31.
1519
actually performing at the time. A specific submission by
Mr Parker to the contrary is examined and rejected below.
(e) Mr Collier and Mr Michael Greenfield launched a barrage
of abusive and derogatory comments to the FWB
Inspectors after their arrival on site on 28 July 2014. Ms
Tadros felt intimidated by this verbal abuse.111 Mr Collier
spat water in the direction of Mr Barr’s feet and stated:
‘Lick it up you fuckin dog’.112 He also spat in the direction
of Mr Pascoe’s feet.113 Mr Collier directed comments such
as ‘fucking slut’114 and ‘fucking dogs’115 towards Ms
Tadros and Mr Pascoe. Michael Greenfield stated to Mr
Blanchard, in the presence of Mr Barr and Mr Pascoe, ‘I
hope you brought your knee pads, you’re going to be
sucking off those dogs all day’.116 Mr Collier blasted a
wailer sound through a megaphone only centimetres away
from Mr O’Connor’s and Mr Barr’s ears.117 Mr Collier
stated to Mr O’Connor: ‘What are you looking at, you
111 Veronica Tadros, 2/9/14, T:34.30. 112 Matthew Barr, witness statement, para 115. 113
Adam Pascoe, witness statement, para 23. 114 Veronica Tadros, witness statement, para 54. 115
Adam Pascoe, witness statement, para 23. 116 Matthew Barr, witness statement, para 96. 117
Matthew Barr, witness statement, para 101; Jared O’Connor, witness statement, para 87.
1520
fucking dog, do you think your phone number is all I got’.
Mr O’Connor perceived this as a threat.118
104. All of this behaviour was intimidatory. It was calculated to
belittle and scare the FWB Inspectors in the most public of ways,
with a view to encouraging them to leave and not return. The
CFMEU officials did not want FWB Inspectors witnessing
workers engaging in industrial action, or the CFMEU seeking to
encourage or support the workers in taking that action.
105. The CFMEU officials named above may have committed
offences under s 149.1 of the Criminal Code, the terms of which
were set out above.
106. It is recommended that this Interim Report be referred to the
Commonwealth Director of Public Prosecutions in order that
consideration may be given to the prosecution of each of Mr
Collier, Mr Kera, Mr Parker and Mr Michael Greenfield in
respect of offences under s 149.1 of the Criminal Code.
107. Counsel for Mr Parker put two submissions against the
conclusion about him stated above.
108. The first concerned the construction of s 149.1(b). Counsel for
Mr Parker submitted that the words ‘obstructs, hinders,
intimidates or resists’ are words which ‘require an integer of
physical interference: as a matter of law, ‘misleading’ an
118 Jared O’Connor, witness statement, para 96.
1521
audience about the nature of an official’s functions is not
enough’.119 The submission continued:120
Indeed, if merely “telling workers” something - even something “misleading” about FWB Inspectors could amount to a breach of s 149.1, very real issues would arise about the constitutional validity of that provision, having regard to the implied freedom of communication on government and political matters, including the performance of official functions by Commonwealth officials. In the absence of submissions by Counsel Assisting as to the proper construction of s 149.1, enabling issue to be joined, the Royal Commission should not make the finding.
109. The last point is untenable. The position of counsel assisting in
chief on the point of construction was clear. And in reply
counsel assisting denied Mr Parker’s contention. They were
correct to do so. To say misleading things to people in relation to
whom government officials are seeking to carry out their
functions about those functions can obstruct or hinder the
performance of the functions.
110. What of the implied freedom of communication on government
and political matters? Here, as so often, the appeal to that
freedom is the last refuge of the desperate. The appeal is so often
made. But it so rarely succeeds. The implied freedom would not
protect misleading conduct.
111. The second submission of Mr Parker was that the allegation was
not put to him in cross-examination. Hence it was said to be
unfair to make the finding against Mr Parker. The submission
119 Submissions on behalf of Brian Parker, 21/11/14, para 44. 120 Submissions on behalf of Brian Parker, 21/11/14, para 45.
1522
appealed to the rule in Browne v Dunn.121 That rule applies in
litigation, but applies outside that field as well. It is a rule of
fairness. In litigation, for example, it requires a party who
proposes to advance an allegation adverse to another party or a
witness, to put the latter party or witness on notice of the
submission in cross-examination. But this need not be done if
the latter party or witness is on notice of the allegation in some
other way. Here Mr Parker was served with the inspectors’
statements. He had the opportunity to prepare a statement in
response with a view to counsel assisting tendering it. He did not
take advantage of that opportunity, despite being represented by
senior and junior counsel and several solicitors. He also had the
opportunity to deal with the matter when he entered the witness
box, but his counsel did not take it. In short, he knew the matters
of fact alleged against him. The rule in Browne v Dunn does not
call for the possible legal characterisations of conduct to be put to
witnesses for their comment.
112. The CFMEU made two submissions about Barangaroo.
113. The first was put thus:122
It should be noted that despite police presence on the site on the first day not one of the inspectors made any complaint to police about any assault or otherwise. The inspectors did not seek police assistance to carry out their duty.
121 (1893) 6 R. 67. 122 Submissions on behalf of the CFMEU, 14/11/14, Pt 8.9, paras 9-10.
1523
The inspectors also made no arrangements for the police to attend on the second day. Again no complaints to police have apparently been made in relation to alleged conduct on that day.
114. Even if it is assumed that these propositions are correct, they do
not bear on the question: ‘What actually happened?’ Nor do
they bear on the question: ‘Should a recommendation be made
that the relevant authorities consider whether or not to initiate a
prosecution?’
115. The CFMEU’s second submission was: ‘The course submitted
by Counsel Assisting is beyond the power of the Commission.’123
The submission did not say why it was not. If the complaint is
that no findings or opinions about criminal guilt should be
expressed, they have not been. There is only a summary of the
evidence and a recommendation to the relevant authorities to
consider whether or not to prosecute.
Adelaide: Section 500 of the Fair Work Act 2009
116. The evidence outlined also raises questions regarding whether
breaches of s 500 of the Fair Work Act 2009 (Cth) arise. Section
500 is a civil penalty provision.
117. Section 500 of the Fair Work Act 2009 (Cth) provides:
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
123 Submissions on behalf of the CFMEU, 14/11/14, Pt 8.9, para 11.
1524
118. The CFMEU submitted that there were proceedings against the
CFMEU, Mr Perkovic and others in the Federal Court in relation
to the events at the Ibis Hotel site. The proceedings are under s
500. They are non-criminal proceedings for a penalty. They
have been brought by the Director of the Fair Work Building
Industry Inspectorate.124 The issue is whether s 500 has been
breached. The CFMEU submitted that the Interim Report should
not contain any findings or any opinion on the matter.125 It is
understood that mediation has been ordered. What next?
Mediating murder charges? However, the CFMEU was correct
to submit that it is undesirable to address the question whether s
500 has been breached. At the same time, the summary of the
evidence above does not create a substantial risk of injustice in
the Federal Court proceedings, because it simply reflects what
appears incontrovertibly on the video.
124 J Agius SC, 2/9/14, T:29.43-30.5. 125 Submissions on behalf of the CFMEU, 14/11/14, Pt 8.9, para 7.
1525
1526
CHAPTER 8.10
THE PENTRIDGE VILLAGE SITE
Subject Paragraph
A - SUMMARY 1
B - NATURAL JUSTICE 3
C - OUTLINE OF FINDINGS 6
D - RELEVANT FACTS 7
West Homes and Pentridge Village 7
Initial dealings with the CFMEU 14
A fatal accident on site 24
Meetings with the CFMEU 31
Meeting Mr Hardy and the employment of Mr Sucic 46
Mr Sucic 49
Pressures applied by the CFMEU to transition to commercial 51
Pressure from Mr Sucic on workers and subcontractors 57
Pressure from Mr Dadic on workers and subcontractors 66
Mr Setka’s awareness and endorsement of the actions on 79
1527
Subject Paragraph
site
Mr Benstead flexes his muscle on site 86
Mr Setka flexes his muscle on site 89
Mr Setka’s call about Mr Onal 93
Disposing of Mr Bonnici’s evidence 95
E - CONCLUSIONS 99
A - SUMMARY
1. This chapter concerns the conduct of certain officers of the Victorian
Branch of the Construction & General Division of the Construction
Forestry Mining and Energy Union (CFMEU) and those associated
with the CFMEU towards West Homes Pty Ltd (West Homes) and
Pentridge Village Pty Ltd (Pentridge Village) on the Pentridge Village
building site (the Pentridge site).
2. The officers in question are Mr John Setka (Victorian State Secretary)
and Mr Gerard Benstead (organiser). The actions under consideration
are those of Mr Setka and Mr Benstead both directly, and also through
Mr Sucic and Mr Dadic, two CFMEU delegates appointed by them to
work on the Pentridge site.
1528
B - NATURAL JUSTICE
3. The ‘primary submission’ of the CFMEU can be treated as a
preliminary point.1 The submission was summarised by the CFMEU
as follows:2
The Royal Commission should find that a denial of natural justice has occurred in circumstances where:
(a) Mr Leigh Chiavaroli produced a significant amount of material to the Royal Commission which was not made available to the CFMEU;
(b) the material produced by Mr Leigh Chiavaroli appears to have been directly relevant to a number of key factual matters the subject of the case study;
(c) there was no reason proffered by Counsel Assisting as to why the material was not provided to the CFMEU;
(d) as to (c) it was not suggested by Counsel Assisting that the material was confidential, was sensitive in nature, or that it was necessary to withhold the information to protect any person;
(e) a small selection of the material produced by Mr Leigh Chiavaroli was provided to the CFMEU some two business hours before the resumed hearing;
(f) the small selection of material that was provided to the CFMEU was probative but was limited mainly to the financial position of the Pentridge Village, joint venture (a matter which is addressed below);
(g) the CFMEU’s counsel was required to cross-examine Mr Leigh Chiavaroli “in the dark”;
(h) the difficulty in (g) was exacerbated by the fact that Mr Leigh Chiavaroli adopted a pattern of answering questions by referring to “the evidence” which he had provided to the Royal Commission, when it was clear that no such material was actually the subject of any evidence before the Royal Commission;
1 Submissions on behalf of the CFMEU, 14/11/14, Pt 8.10, para 77. 2 Submissions on behalf of the CFMEU, 14/11/14, Pt 8.10, para 4.
1529
(i) as a result of (g) and (h), Mr Chiavaroli’s evidence could not be fully and properly tested;
(j) as a result of (a) - (i), the CFMEU was at a serious disadvantage which impeded it and the relevant individuals from receiving a fair hearing.
4. The response of counsel assisting was follows:3
6. The CFMEU asked the Commission to issue notices to produce, and the Commission did so. Documents were produced to the Commission and were reviewed by staff assisting the Commission for the purpose of determining whether they were material to a proper assessment of the evidence under consideration, including the evidence of the Chiavarolis. The documents so identified were gathered together, regardless of whether they helped or harmed the CFMEU. The CFMEU was given the documents.
7. Some of those documents were helpful to the CFMEU’s cause on issues which had been raised, and were used first by Counsel Assisting to form a view that no submission should be made as to the financial effect of the CFMEU’s conduct on Pentridge Village (a fact which the CFMEU conveniently ignores when deciding if and to what extent persons assisting the Commission are partisan), and later by the CFMEU (to support submissions about that topic even though the point in question had not been made against it).
…
10. The “small selection of materials” produced to the CFMEU in Melbourne in response to its request for documentation ran to two full lever arch volumes. A third bundle was provided on the same day in relation to Mr Zaf.
11. The submission that no reason has been given as to why other material was not provided to the CFMEU is incorrect. The CFMEU’s lawyers were told by persons assisting the Commission about the processes described in paragraph 6 above. The CFMEU has also overlooked the portion of the transcript which records the statement that the documents identified for disclosure to the CFMEU by staff assisting the Commission were
3 Submissions in Reply of Counsel Assisting, 25/11/14, Chapter 8.10: paras 6-8, 10-12.
1530
those which had been determined to be relevant to the terms of reference.[4]
12. If there was a different version of the facts for this Commission to consider, Mr Setka could have come and given evidence about it. Mr Reardon could have come and given evidence about it. Mr Benstead could have come and given evidence about it. None of them did. Each of them - having remained mute - nevertheless took up the opportunity to undertake a lengthy cross-examination of Mr Chiavaroli through senior counsel, and received from the Commission volumes of documents which they now seek to use to their advantage. The submission by them and the CFMEU that they have been denied natural justice should be rejected.
5. The CFMEU is correct in suggesting that Mr Chiavaroli’s technique of
answering questions, on occasion, by reference to materials he had
provided to the Commission whether or not they were actually in
evidence was not helpful. However, taken as a whole, the CFMEU
submission is not compelling. The submission does not suggest that
documents relevant to the Terms of Reference which might have been
favourable to it were deliberately withheld. Some discretion must
reside in those assisting the Commission to determine what documents
are outside the Terms of Reference, and then to decline to disclose
those documents. Counsel assisting is also entitled to decline to pursue
issues which may be within the Terms of Reference, but are
excessively prone to waste time or which it may otherwise be
undesirable to pursue. As the CFMEU pointed out in another context,
at one stage it seemed that the causal relationship between the
CFMEU’s conduct and any loss suffered by the Chiavaroli companies
was in play. It is not now in play. The CFMEU is not denied natural
justice by not having material going to that question. The CFMEU
complaints of time constraints have to be understood in the light of the
4 Mr Stoljar SC, 17/9/14, T:12.37.
1531
need to do a great deal of work against what was until quite recently a
31 December 2014 deadline. That imposed pressures on all involved,
not just the CFMEU. There has been no showing that on any particular
issue the CFMEU was unfairly hampered by what has happened.
Hence the CFMEU’s submission is rejected. It made other
submissions which are dealt with at appropriate points below.
C - OUTLINE OF FINDINGS
6. The substance of counsel assisting’s submissions are to be accepted.
They lead to the following findings.
(a) There was a sad death on the Pentridge site during the life of the
project. The circumstances surrounding and the causes of that
fatality are not within the Terms of Reference.
(b) The CFMEU’s response to the death was strong and swift. In
many respects its reaction was both understandable and to be
expected. It wanted to introduce a higher level of safety
standards on site, for the benefit of workers on the site.
(c) However the CFMEU went too far, in that it used threats and
coercion in order to ensure that its own preferred candidate, Mr
Sucic, was retained to oversee matters of safety.
(d) In addition, and regrettably, the CFMEU took an advantage of
the opportunity afforded to it to have some presence on site. It
sought, through persons strategically placed on the site (Mr
Sucic and then Mr Dadic), to take control of the project and all
1532
of the workers on the site. It did so through the use of
illegitimate pressure exerted by these individuals on builders and
subcontractors to enter into the CFMEU form of enterprise
bargaining agreement (EBA), and by seeking to exclude from
the site workers who were not CFMEU members.
(e) This conduct may have contravened ss 346 and 355 of the Fair
Work Act 2009 (Cth).
(f) An investigation into the Pentridge site has also revealed a
number of discrete instances where Mr Setka engaged in grossly
offensive and aggressive conduct. It indicates a type of
behaviour that one would not expect to see from any trade union
leader. The behaviour, and the underlying attitudes it reveals,
fall well short of the professional standards expected of a State
Secretary of the CFMEU.
D - RELEVANT FACTS
West Homes and Pentridge Village
7. West Homes, a family owned building and construction company, was
incorporated in 1972 by Mr Peter Chiavaroli.5 West Homes holds a
full building licence. Mr Leigh Chiavaroli, Peter Chiavaroli’s son, was
a director of West Home for various periods from 1994 to 2011.6
5 Leigh Chiavaroli, witness statement, 8/7/14, para 3, annexure 1, pp 55-62. 6 Leigh Chiavaroli, witness statement, 8/7/14, annexure 1, pp 55-62.
1533
8. Pentridge Village was incorporated by Leigh and Peter Chiavaroli and
their then joint venture parties in 1999.7 Pentridge Village was
incorporated as a joint venture vehicle to purchase and develop the
Pentridge site.8 The Pentridge site was originally an 88 acre site
located at Urquhart Street in Coburg, Victoria.9 The site was
purchased by Pentridge Village on 5 June 1999.10
9. The development proposed on the Pentridge Village site was an $800
million multi-staged development11 that was to be developed under the
Pentridge Village master plan.12
10. Pentridge Village engaged West Homes to complete all building and
construction on the Pentridge Village site.13 Construction and building
commenced on the Pentridge site in November 2000.14
11. Prior to October 2010, West Homes did not have an enterprise
bargaining agreement with its employees. West Homes predominantly
engaged subcontractors and employees on individual contracts.15
7 Leigh Chiavaroli, witness statement, 8/7/14, para 8. 8 Leigh Chiavaroli, witness statement, 8/7/14, para 10. 9
Leigh Chiavaroli, witness statement, 8/7/14, para 10. 10 Leigh Chiavaroli, witness statement, 8/7/14, para 12. 11
Leigh Chiavaroli, witness statement, 8/7/14, para 14. 12 Leigh Chiavaroli, witness statement, 8/7/14, annexure 3, pp 77-81. 13
Leigh Chiavaroli, witness statement, 8/7/14, para 16. 14 Leigh Chiavaroli, witness statement, 8/7/14, para 18. 15
Leigh Chiavaroli, 17/9/14, T:61.4-7; Leigh Chiavaroli, witness statement, 8/7/14, para 47.
1534
Pentridge Village was also not party to any enterprise bargaining
agreement.16
12. At the peak of the development, there were up to 500 subcontractors
engaged by West Homes to complete stages of the development.17
13. Mr Des Caple of Des Caple & Associates had been engaged in October
2000 as an occupational health and safety consultant for the Pentridge
site.18 The frequency of Mr Caple’s audits varied depending on the
stage of the development. In addition to Mr Caple, Mr Martin
Zerowsky was employed as a full time occupational health and safety
officer at the Pentridge site.19
Initial dealings with the CFMEU
14. For the first nine years of the development and prior to 2009, the
CFMEU was largely unconcerned with the Pentridge site.
15. In January 2009, Mr Gerard Benstead, an organiser with the
Construction and General Division of the Victorian Branch of the
CFMEU arrived at the Pentridge site and asked to enter the site. Leigh
Chiavaroli met Mr Benstead in his site office.20
16 Leigh Chiavaroli, witness statement, 8/7/14, para 47. 17 Leigh Chiavaroli, witness statement, 8/7/14, para 21; Leigh Chiavaroli, 8/7/14, T:7:24-25. 18
Leigh Chiavaroli, witness statement, 8/7/14, Annexure 9, p 180. 19 Leigh Chiavaroli, witness statement, 8/7/14, para 51. 20
Leigh Chiavaroli, witness statement, 8/7/14, paras 27-29.
1535
16. Mr Benstead requested that he be allowed to enter the Pentridge site to
‘have a look around’.21 Mr Benstead also asked for a copy of the
project plan. He wanted to ascertain the commercial stages of the site
so that the CFMEU could ‘move onto the site as the project entered the
commercial stage of construction’.22
17. Mr Benstead also discussed with Leigh Chiavaroli his belief that a
‘shop steward, occupational health and safety representative’, was
required on site.23 Leigh Chiavaroli told Mr Benstead that he had
engaged Mr Caple for site audits and Mr Zerowsky as an occupational
health and safety officer. Mr Benstead replied: ‘I think you need help
from the CFMEU to look after the blokes on site’.24
18. By March 2009, Mr Benstead had attended the Pentridge Village site
on at least two further occasions seeking to inspect the Pentridge
Village site.25 On each occasion Leigh Chiavaroli maintained that the
development was a residential development and not a commercial
development. Traditionally, the CFMEU does not have coverage in
relation to residential or domestic housing sector.
19. On 3 March 2009 Mr Benstead attended the Pentridge Village site
again. Mr Benstead gave a copy of the CFMEU’s pattern enterprise
21 Leigh Chiavaroli, witness statement, 8/7/14, para 30(a). 22 Leigh Chiavaroli, witness statement, 8/7/14, para 30(b). 23
Leigh Chiavaroli, witness statement, 8/7/14, para 31. 24 Leigh Chiavaroli, witness statement, 8/7/14, para 31. 25
Leigh Chiavaroli, witness statement, 8/7/14, para 32.
1536
bargaining agreement to Leigh Chiavaroli. He told him to read it and
ask Mr Benstead any questions he might have.26
20. On 16 March 2009, Leigh Chiavaroli met Mr Benstead at a café near
the development. During this meeting Mr Benstead asked Leigh
Chiavaroli if he intended to sign the CFMEU enterprise bargaining
agreement.27 Mr Benstead again said to Leigh Chiavaroli ‘I think you
need help from the CFMEU to look after the blokes on the site’.28
21. At the meeting on 16 March 2009, Leigh Chiavaroli agreed to allow
Mr Benstead to conduct a visual occupational health and safety
inspection of the site.29
22. This site inspection occurred that same day, during which Mr Benstead
said to Leigh Chiavaroli ‘everything is okay. It’s a pretty clean site.’30
23. Leigh Chiavaroli did not receive any phone calls or visits from the
CFMEU for six months after this meeting with Mr Benstead.
A fatal accident on site
24. On 15 October 2009 an accident on the Pentridge site resulted in the
death of Thomas Kelly, a concreter working on the site.31
26 Leigh Chiavaroli, witness statement, 8/7/14, paras 44-45. 27 Leigh Chiavaroli, witness statement, 8/7/14, para 60. 28
Leigh Chiavaroli, witness statement, 8/7/14, para 60. 29 Leigh Chiavaroli, witness statement, 8/7/14, para 61. 30
Leigh Chiavaroli, witness statement, 8/7/14, para 63. 31 Leigh Chiavaroli, witness statement, 8/7/14, para 65.
1537
25. Mr Benstead and Mr Gerry Ayers, the CFMEU’s Safety Unit Manager,
attended the site on the day of the accident.32 In response to demands
from Mr Benstead, Leigh Chiavaroli met Mr Benstead and Mr Ayers
that afternoon.
26. During this meeting Mr Benstead criticised the occupational health and
safety staff that West Homes had engaged on the Pentridge site. Mr
Benstead also said ‘It is a prerequisite that because of the accident
from here on in, a union representative will have to be put in place at
the site’.33 Mr Benstead told Leigh Chiavaroli that he would be
contacting him by phone in the next 24 hours.34
27. The Pentridge Village site was shut down immediately after the
accident and remained shut until around January 2010.35 Various site
improvement and prohibition notices regarding the Pentridge site were
issued by WorkSafe Victoria in the days after the 15 October
accident.36
28. Following the accident and on 12 October 2011 the Victorian
WorkCover Authority charged West Homes with one count of failing
as far as reasonably practicable to provide a safe working environment
and one count of failing as far as reasonably practicable to ensure that
32 Leigh Chiavaroli, witness statement, 8/7/14, para 66(b). 33 Leigh Chiavaroli, witness statement, 8/7/14, para 75. 34
Leigh Chiavaroli, witness statement, 8/7/14, para 75. 35 Leigh Chiavaroli, witness statement, 8/7/14, para 70. 36
Leigh Chiavaroli, witness statement, 8/7/14, para 81.
1538
employees are not exposed to risks to their health and safety under the
Occupational Health and Safety Act 2004 (Vic).37
29. On 2 August 2012 the Victorian WorkCover Authority withdrew the
charges against West Homes.38
30. A coronial inquiry in relation to the facts and circumstances
surrounding Mr Kelly’s death is on foot. It is not appropriate to deal
further with the cause of and circumstances surrounding Mr Kelly’s
death.
Meetings with the CFMEU
31. In the week immediately following the accident, Mr Benstead
proceeded to call Leigh Chiavaroli two or three times a day.39 Mr
Benstead demanded that Leigh Chiavaroli meet officials of the
CFMEU, including Mr John Setka (the State Secretary of the CFMEU
Construction and General Division - Victoria) and Mr Bill Oliver (the
former President).40
32. During these conversations Mr Benstead repeatedly threatened that the
site would be ‘black banned and picketed’ if Leigh Chiavaroli did not
37 Leigh Chiavaroli, witness statement, 8/7/14, para 79. 38 Leigh Chiavaroli, witness statement, 8/7/14, annexure 16, pp 193-195. 39
Leigh Chiavaroli, witness statement, 8/7/14, para 82. 40 Leigh Chiavaroli, witness statement, 8/7/14, para 82.
1539
meet with and co-operate with the CFMEU and if West Homes did not
engage a CFMEU shop steward on the site.41
33. In the weeks following the accident Mr Shaun Reardon (the Assistant
State Secretary of the CFMEU) attended the site. He shook the fence.
He yelled obscenities and threatening comments.42 He also regularly
called Leigh Chiavaroli and demanded he come and talk to him.43
34. The pressure placed on Mr Leigh Chiavaroli to co-operate with the
CFMEU caused him to agree to attend a meeting with Mr Setka and
Mr Oliver on 22 October 2009. Leigh Chiavaroli’s diary records show
that the meeting took place at Don Camillo’s in West Melbourne.44
35. Mr Chiavaroli’s account of the meeting is that Mr Setka threatened to
put a ‘picket line across the front of your job’ unless the Chiavarolis
agreed to put the CFMEU nominated health and safety representative
on the site.45
36. Mr Bonnici’s evidence is that the meeting was ‘not threatening’ and
that there was ‘nothing said’ about establishing a picket line.46 Mr
Bonnici describes the tone taken by Mr Oliver at the meeting as
‘authoritative’ and ‘like a parent dressing down a child’.47
41 Leigh Chiavaroli, witness statement, 8/7/14, paras 83-84. 42 Leigh Chiavaroli, 17/9/14, T:27.1-4. 43
Leigh Chiavaroli, witness statement, 8/7/14, para 97(d). 44 Leigh Chiavaroli, witness statement, 8/7/14, annexure 17, p 196. 45
Leigh Chiavaroli, witness statement, 8/7/14, para 88. 46 Michael Bonnici, witness statement, 18/9/14, para 65. 47
Michael Bonnici, witness statement, 18/9/14, para 63.
1540
37. Leigh Chiavaroli’s version of events should be preferred to that of Mr
Bonnici.
38. A further meeting took place at the Pentridge Village site on 26
October 2009.48 Mr Setka, Peter Chiavaroli and Leigh Chiavaroli
attended. Mr Mario Amenta was also in attendance. He was a director
of XL Concrete and someone who had been introduced to the
Chiavarolis as a ‘facilitator’ for discussions with the CFMEU.49
39. During this meeting there was a discussion about the employment of an
additional occupational health and safety representative on site. The
Chiavarolis said that they were in the process of employing an
additional occupational health and safety representative, Mr Anthony
Rowe.50
40. Mr Setka told the Chiavarolis that employing Mr Rowe was not an
option. He said that West Homes had to employ Mr Anton Sucic.51
Mr Setka said that this was ‘non-negotiable’.52 Mr Sucic was a close
personal friend of Mr Setka. Mr Setka was best man at his wedding,
Mr Sucic is the godfather to Mr Setka’s son. They each share a one
eighth financial interest in a fishing boat.53
48 Leigh Chiavaroli, witness statement, 8/7/14, para 91. 49 Leigh Chiavaroli, witness statement, 8/7/14, paras 38-39. 50
Leigh Chiavaroli, 8/7/14, T:13.34-43. 51 Leigh Chiavaroli, witness statement, 8/7/14, para 94; Peter Chiavaroli, witness statement, 8/7/14, para 32. 52
Leigh Chiavaroli, witness statement, 8/7/14, para 94; Peter Chiavaroli, witness statement, 8/7/14, para 32. 53 Anton Sucic, witness statement, 18/9/14, para 9.
1541
41. Mr Bonnici gave a different account of the conversation. According to
him, it was Mr Amenta who suggested Mr Sucic as a suitable
occupational health and safety representative and Mr Setka agreed that
Mr Sucic ‘would be a good fit’.54 Mr Bonnici gave evidence that the
only requirement Mr Setka described as ‘not negotiable’ was the
engagement of a qualified health and safety officer on the site,55 and
that the ‘conclusion of the discussion was that Mr Sucic was the best
person for the job’.56
42. Leigh Chiavaroli’s account of this meeting, too, should be preferred.
43. The CFMEU submitted that Mr Leigh Chiavaroli’s accounts of the
conversations of 22 and 26 October 2009 were prone to error. He
admitted in oral evidence that his statement was wrong in claiming that
Mr Sucic attended the 26 October 2009 meeting. The CFMEU pointed
to the fact that Mr Peter Chiavaroli’s account omitted any threat of
industrial action. It pointed to the fact that Mr Amenta was not called
and that no notes or other documentary record of the meetings were in
evidence. Finally it pointed to the fact that Mr Bonnici’s account of
the conversations was different.57
44. For reasons given below, Mr Bonnici’s credit is bad. The other points
are reasonable points to make about conversations five years ago, but
the crucial contest is between the uncreditworthy Mr Bonnici and Mr
Leigh Chiavaroli. On the probabilities, the latter is to be preferred.
54 Michael Bonnici, witness statement, 18/9/14, para 75. 55 Michael Bonnici, witness statement, 18/9/14, para 74. 56
Michael Bonnici, witness statement, 18/9/14, para 77. 57 Submissions on behalf of CFMEU, 14/11/14, Pt 8.10, paras 81-91.
1542
45. As a result of this meeting Leigh Chiavaroli felt there was ‘no option
but to employ’ Mr Sucic.58 Mr Setka had given the Chiavarolis an
ultimatum. They decided to capitulate rather than face problems with
the CFMEU.
Meeting Mr Hardy and the employment of Mr Sucic
46. Around the same time, the Chiavarolis were introduced to Mr Ken
Hardy of Construction Safety and Training Services Pty Ltd. They
understood that Mr Hardy could ‘fix’ the problems that West Homes
was having with the CFMEU, and that he had close ties with the
CFMEU and its officials. This was to become evident during the
course of their dealings with Mr Hardy on the site.59
47. On 27 October 2009 the Chiavarolis met Mr Hardy. They discussed
the possibility of Mr Hardy providing occupational health and safety
services together with advice in relation to industrial relations.60
48. On 17 December 2009 Pentridge Village engaged Mr Hardy’s
company to provide occupational health and safety services for the
Pentridge Village site.61 Mr Sucic was then employed by Mr Hardy’s
company from December 2009. Thereafter he began attending the
Pentridge Village site.62
58 Leigh Chiavaroli, witness statement, 8/7/14, para 99; Peter Chiavaroli, witness statement, 8/7/14, para 36. 59
Leigh Chiavaroli, witness statement, 8/7/14, para 113. 60 Leigh Chiavaroli, witness statement, 8/7/14, paras 104-106. 61
Leigh Chiavaroli, witness statement, 8/7/14, annexure 24, pp 204-205. 62 Leigh Chiavaroli, witness statement, 8/7/14, para 108.
1543
Mr Sucic
49. Other than an ‘occupational health and safety course at Trades Hall in
Melbourne 20 years ago’, Mr Sucic does not have any occupational
health and safety qualifications.63 His only occupational health and
safety expertise is that which he has gained ‘on the job’.
50. As Mr Sucic accepted, he was, in substance, ‘CFMEU’s man on site’,
and he had been placed on site by Mr Setka and Mr Benstead.64
Pressures applied by the CFMEU to transition to commercial
51. Each of counsel assisting and counsel for the CFMEU provided
submissions in relation to an email dated 18 August 2010 sent by Mr
Sucic, and the relevance of that email to the question of whether one
particular part of the site, called S8, was ‘domestic’ or ‘commercial’.65
It is not necessary to set out those submissions in this Interim Report.
Resolution of that discrete sub-issue has become difficult. That is
because matters that are now being advanced on the sub-issue travel
beyond what was put to various witnesses by both counsel for the
CFMEU and counsel assisting. Further, the sub-issue is not
determinative of the critical events under consideration, as much of the
conduct complained of by Mr Chiavaroli concerned the CFMEU’s
coercion of West Homes generally, and the treatment of sub-contractors and their employees who were not CFMEU members. For
these reasons no findings based on Mr Sucic’s email will be made
63 Anton Sucic, witness statement, 18/9/14, para 3. 64 Anton Sucic, 18/9/14, T:183.43-184.3.
1544
which are adverse to the CFMEU or its officers, or adverse to Mr
Sucic’s credit.
52. When the Chiavarolis first met Mr Hardy in October 2009, Mr Hardy
took steps to have West Homes sign an enterprise bargaining
agreement with the CFMEU.66 He told Leigh Chiavaroli that the site
needed to be transitioned in order to ‘keep the site going and to
administer good relationships with the CFMEU’, that if the CFMEU
enterprise agreement was not signed, the CFMEU would ‘shut you
down’,67 and that there would be a ‘full stoppage of work on site’ if
West Homes did not sign the enterprise bargaining agreement.68
53. Mr Hardy’s behaviour suggests that he was, at this time, doing the
CFMEU’s bidding. He had been introduced to the Chiavarolis as
someone with links to union officials, and once he was on site, Mr
Hardy was regularly meeting with union officials in his office. Indeed
at one point he said to Mr Oliver that he did not need to worry because
Mr Hardy was ‘here now’.69
65 Submissions on behalf of CFMEU, 14/11/14, Pt 8.10, paras 59-76; Submissions in Reply of Counsel Assisting, 25/11/14, Chapter 8.10: paras 15-20. 66
Leigh Chiavaroli, witness statement, 8/7/14, para 118. 67 Leigh Chiavaroli, witness statement, 8/7/14, para 119(b). 68
Leigh Chiavaroli, witness statement, 8/7/14, para 124. 69 Leigh Chiavaroli, witness statement, 8/7/14, para 113; Peter Chiavaroli, witness statement, 8/7/14, para 49.
1545
54. Faced with this pressure from the CFMEU, communicated through Mr
Hardy, Leigh Chiavaroli felt he had to agree. He did not want to take
the risk that the CFMEU would launch an attack if he did not agree.70
55. The Chiavarolis were under significant pressure to complete parts of
the development in time for settlements. The settlements were for an
anticipated amount of $69 million. In these circumstances Leigh
Chiavaroli felt that he had no option but to comply with the CFMEU’s
demands.71 He did not want to upset the CFMEU and risk attacks on
his site that would result in delays to the settlements.
56. After the Chiavarolis had buckled to this pressure and signed the
CFMEU form of EBA, they dispensed with the services of Mr Hardy.
At this point Mr Sucic ceased to be employed by Mr Hardy’s company,
and started working directly for Pentridge Village.72
Pressure from Mr Sucic on workers and subcontractors
57. In and after mid 2010 subcontractors working on the Pentridge site
were pressured by Mr Sucic to sign the CFMEU’s form of EBA and, in
the process, re-price their jobs based on the commercial rates in the
enterprise bargaining agreements.73
58. In tandem with this, Mr Sucic also sought to exclude workers who had
been retained to work on the site if they were not CFMEU members,
70 Leigh Chiavaroli, 17/9/14, T:35.33. 71 Leigh Chiavaroli, witness statement, 8/7/14, paras 129-130. 72
Leigh Chiavaroli, witness statement, 8/7/14, para 141. 73 Leigh Chiavaroli, witness statement, 8/7/14, paras 120,133.
1546
and through this and other means, applied significant pressure to
workers to join the CFMEU.
59. Leigh Chiavaroli’s evidence was that if subcontractors and their
workers did not comply with requirements of this kind, they were
prevented from accessing the Pentridge Village site. As a consequence
they were prevented from completing outstanding works on the
Pentridge Village site.74 Complaints were made to him by a range of
subcontractors, including Peter Brown, Rahimi Mobarak and
Albert Moshi.75
60. Contemporaneous emails from site staff reveal complaints being made
about Mr Sucic behaving in this way. This supports Leigh
Chiavaroli’s evidence on the subject. The complaints concerned Mr
Sucic:
(a) not allowing non-union workers on the S8 site;76
(b) putting ‘a lot of pressure’ on a subcontractor for not having an
enterprise agreement with the CFMEU;77
(c) putting pressure on a subcontractors whose employees were not
members of the CFMEU;78 and
74 Leigh Chiavaroli, witness statement, 8/7/14, para 120. 75 Leigh Chiavaroli, 17/9/14, T:27.25-28.17. 76
Sucic MFI-4. 77 Sucic MFI-5. 78
Sucic MFI-5.
1547
(d) handing out forms for joining the union, telling workers they had
to sign those forms, and demanding the forms be signed.79
61. Mr Sucic gave unsatisfactory evidence on these subjects. When it was
suggested to him that he had put pressure on workers to join the union
and would not allow non-union members to enter the site, he said he
did not need to recruit members because every contractor had a
CFMEU enterprise bargaining agreement and their employees were
union members.80
62. This was inconsistent with what he had said in his statement, to the
effect that he was positively encouraging workers to join the union.81
When this contradiction was put to Mr Sucic, his evidence became
nonsensical. He said he encouraged people to become union members
even though they were already union members.82 At this point in the
examination, Mr Sucic was dissembling.
63. At a later point in the examination, Mr Sucic accepted that he was
making demands about union membership because he was trying to
achieve direct negotiating strength as a union representative looking
after union members, and that this was ‘common practice’. He said he
wanted a workforce that would ‘take instruction’, and that is what he
was seeking to achieve at the Pentridge site. He admitted that was
79 Sucic MFI-5. 80 Anton Sucic, 18/9/14, T:177.6-9. 81
Anton Sucic, witness statement, 18/9/14, para 25. 82 Anton Sucic, 18/9/14, T:177.11-35.
1548
indicative of the CFMEU’s general position.83 This was all about
control - control by the CFMEU of all the workers, and thus the site.
64. On the question of applying pressure to subcontractors to sign CFMEU
enterprise bargaining agreement, Mr Sucic did ultimately accept that
he was insisting on subcontractors signing a commercial enterprise
bargaining agreement.84 He had no right to do so. The terms of
employment between subcontractors and their employees was a matter
for those parties. Mr Sucic was not entitled to force himself on their
relationship and dictate the terms on which an employer would
employee its employees.
65. Mr Sucic prevaricated as to whether his insistence that subcontractors
had ‘commercial EBAs’ meant, in substance, an insistence that they
sign the CFMEU’s form of EBA. He started his answer with the words
‘If that was the case’, but then changed course and suggested that
something else might have sufficed so long as it was of a commercial
nature.85 Given that he was CFMEU’s man on site, and was positively
requiring subcontractors to sign commercial enterprise bargaining
agreements, a suggestion by Mr Sucic that he was not pressing for the
CFMEU’s form of enterprise bargaining agreement is not credible.
Pressure from Mr Dadic on workers and subcontractors
66. In October 2010, Mr Sucic told Leigh and Peter Chiavaroli that he was
going to be replaced on site by Mr Ivan Dadic.86 Mr Dadic is Mr
83 Anton Sucic, 18/9/14, T:183.1-23. 84 Anton Sucic, 18/9/14, T:179.38. 85
Anton Sucic, 18/9/14, T:179.41-45.
1549
Setka’s brother-in-law.87 He is also a long-term and close personal
friend of Mr Sucic.88 Mr Benstead told Leigh Chiavaroli that he had
no choice and that Mr Dadic was coming onto the site.89
67. Below there is a finding that Mr Setka may have breached s 355 of the
Fair Work Act 2009 (Cth) by threatening industrial action unless Mr
Dadic was employed. The CFMEU submitted that there is no evidence
that Mr Setka had any role in the employment of Mr Dadic.90 But Mr
Dadic was Mr Setka’s brother-in-law. It is unlikely that Mr Benstead
would threaten Mr Chiavaroli without Mr Setka’s knowledge and
approval. A probable inference arises that Mr Benstead’s statement to
Mr Chiavaroli was made with Mr Setka’s knowledge and approval.
68. As a result, Mr Dadic did replace Mr Sucic on site. He behaved in the
same manner as his predecessor.
69. In this regard, Mr Dadic refused entry to the Pentridge site to
subcontractors that had not signed an enterprise bargaining agreement
with the CFMEU, and workers who were not union members.91 He
told subcontractors during their inductions that they were required to
be members of the CFMEU and were required to join the CFMEU
86 Leigh Chiavaroli, witness statement, 8/7/14, para 143; Peter Chiavaroli witness statement, 8/7/14, para 54. 87
Peter Chiavaroli, witness statement, 8/7/14, para 54. 88 Anton Sucic, witness statement, 18/9/14, para 37. 89
Leigh Chiavaroli, witness statement, 8/7/14, para 143. 90 Submissions on behalf of CFMEU, 14/11/14, Pt 8.10, para 80. 91
Leigh Chiavaroli, witness statement, 8/7/14, para 149.
1550
preferred income protection and superannuation schemes, Incolink and
Cbus.92
70. Subcontractors who reported Mr Dadic’s conduct to Leigh Chiavaroli
included:
(a) Mr Peter Brown, director of Premium Shower Screens Pty Ltd,
who complained that, in March 2011, one of his employees was
refused access to the site by Mr Dadic on the grounds that the
employee was not a CFMEU member;93
(b) Mr Talip Onal from Onal Painting Contractors Pty Ltd, who
complained that, between 4 and 8 April 2011, he and his
subcontractors was refused entry to the Pentridge Village site by
Mr Dadic as he did not have a CFMEU enterprise bargaining
agreement and Cbus and Incolink membership;94
(c) Mr Rahimi Mobarak of Golden Towers Construction Pty Ltd
who complained that he was refused access to the Pentridge
Village site by Mr Dadic as he was not a CFMEU member;95
(d) Mr Rahimi Hamidullah, a renderer, who reported that he was
refused access by Mr Dadic to the site because he did not have
CFMEU, Cbus or Incolink membership.96
92 Leigh Chiavaroli, witness statement 8/7/14, para 150. 93 Leigh Chiavaroli, witness statement 8/7/14, para 152(a). 94
Leigh Chiavaroli, witness statement, 8/7/14, para 152(b). 95 Leigh Chiavaroli, witness statement, 8/7/14, para 152(c).
1551
71. Leigh Chiavaroli was told by Mr Mastramico that other subcontractors,
including Carpet Call, Austral Kitchens, Super Kitchens and CSR
Bradford were refused entry to the site by Mr Dadic because they had
not signed an enterprise bargaining agreement with the CFMEU.97
Ryden Braggins, a contracting carpet layer, was told that he would
have to join the CFMEU, Cbus and Incolink before he could get access
to the Pentridge Village site.98
72. Mr Benstead was Mr Dadic’s CFMEU supervisor. When Leigh
Chiavaroli approached Mr Dadic about his conduct, Mr Dadic made
clear to him that subcontractors were not allowed to work on the
Pentridge Village site without an enterprise agreement. Mr Dadic also
made clear that he was acting on instructions from the CFMEU,
saying: 99
I get my instructions from my masters at the CFMEU. If you have a dispute or a problem with that, you need to speak to the area manager, Gerard. It’s the policy of the CFMEU.
73. When Leigh Chiavaroli specifically asked Mr Dadic about CSR
Bradford not being permitted access to the site as their employees were
not members of the CFMEU and because they did not have a CFMEU
enterprise bargaining agreement, Mr Dadic responded: ‘You know, if
these guys come to the site I won’t allow them past the gate, I’ll just
refuse them entry and turn them around’.100
96 Leigh Chiavaroli, witness statement, 8/7/14, para 152(d). 97 Leigh Chiavaroli, witness statement, 8/7/14, para 158. 98
Ryden Lee Braggins, witness statement, 8/7/14, paras 18-22. 99 Leigh Chiavaroli, witness statement, 8/7/14, para 166. 100
Leigh Chiavaroli, witness statement, 8/7/14, para 169.
1552
74. Mr Dadic also threatened subcontractors on the Pentridge site
saying: 101
you have to join the CFMEU and if you don’t I will be watching you. If your shoelace is undone and you are going up a ladder, then that’s it.
75. Peter Chiavaroli interpreted this to mean that Mr Dadic was
threatening work stoppages on false workplace safety grounds if
people did not sign up to the CFMEU.102
76. Several of the subcontractors engaged by West Homes, some of whom
had worked with West Homes for many years, ceased work on the
Pentridge Village site due to the pressure to join the CFMEU and sign
an enterprise bargaining agreement with the CFMEU.
77. Mr Dadic’s employment with Pentridge ceased on 22 November 2011
and his position became redundant. Since that time there has been no
CFMEU presence on the Pentridge Village site.103
78. The CFMEU made some general submissions about the preceding
paragraphs and others. It complained about particular subcontractors
not being called. It complained about double hearsay. It complained
about inability to test Mr Leigh Chiavaroli because of his references to
material not in evidence. The last two complaints are exaggerated. So
far as double hearsay was involved, it tended to take the form of
statements by sub-contractors to their head contractors at the time of
101 Peter Chiavaroli, witness statement, 8/7/14, para 63. 102 Peter Chiavaroli, witness statement, 8/7/14, para 63. 103
Leigh Chiavaroli, witness statement, 8/7/14, para 177.
1553
particular CFMEU conduct: that is, it was part of the res gestae, as
distinct from being a testimonial narration long after the relevant event.
So far as particular subcontractors were not called, it is necessary to
bear in mind the difficulties of obtaining assistance from witnesses of
that character in view of the strong industrial position of the CFMEU.
Mr Setka’s awareness and endorsement of the actions on site
79. Peter Chiavaroli’s evidence is that he attended a meeting with Mr
Setka and two other CFMEU representatives at the CFMEU’s offices
in Swanston Street. During that meeting Mr Setka made clear to Peter
Chiavaroli that employees and subcontractors working on the
Pentridge Village site had to become CFMEU members. Mr Setka
also made clear that those who did not wish to join would need to be
replaced.104
80. When Peter Chiavaroli pushed back, Mr Setka retorted ‘there’s more
than one fucking way to skin a cat’.105 Peter Chiavaroli interpreted this
as a threat of industrial action if he did not comply with Mr Setka’s
demands to use a ‘unionised’ workforce on the site.
81. Mr Setka also told Peter Chiavaroli that he was to engage Mr Amenta
and XL Concrete to provide concrete to the Pentridge Village site.106
82. Peter Chiavaroli’s protested that West Homes already had a concrete
supplier, Holcim, with whom they had had a long-running commercial
104 Peter Chiavaroli, witness statement, 8/7/14, para 65. 105 Peter Chiavaroli, witness statement, 8/7/14, para 66. 106
Peter Chiavaroli, witness statement, 8/7/14, para 67.
1554
relationship and a better commercial price, Mr Setka retorted ‘It is not
a fucking option. Do you want to finish the job?’107 Peter Chiavaroli
took this as a threat by Mr Setka to shut the Pentridge Village site and
prevent them from finishing construction of the units if he did not
comply with Mr Setka’s demands.
83. The CFMEU provided no evidence to contradict Peter Chiavaroli’s
version of these events, even though Mr Setka and others were given
the opportunity to do so.
84. Out of fear that the site would be shut down, Mr Amenta and XL
Concrete were engaged to perform multiple concrete pours over
multiple days.108
85. The CFMEU submitted that Mr Leigh Chiavaroli’s evidence did not
implicate Mr Setka or refer to XL Concrete, Mr Peter Chiavaroli was
not tested because he was too ill to attend for cross-examination, there
was no written or other complaint about the retainer of XL Concrete,
and Mr Amenta did not give evidence.109 The lack of complaint is not
significant. A person who submits to coercive behaviour in the form of
threats out of fear that a union may cause that person harm is well
advised not to submit complaints less the union be irritated into
carrying out the conduct threatened. Mr Peter Chiavaroli’s evidence
may be untested, but it is also uncontradicted by Mr Setka. The fact
that it is uncontradicted suggests that it could not have been tested
successfully. There is no reason not to accept it.
107 Peter Chiavaroli, witness statement, 8/7/14, para 66. 108 Leigh Chiavaroli, 17/9/14, T:70.25-30. 109
Submissions on behalf of CFMEU, 14/11/14, Pt 8.10, paras 92-99.
1555
Mr Benstead flexes his muscle on site
86. In June 2011 Mr Onal told Leigh Chiavaroli that he had lodged a
complaint with the then Australian Building and Construction
Commission in relation to Mr Dadic refusing to allow Mr Onal access
to the Pentridge Village site.110
87. Mr Benstead was not pleased when he found out that Mr Onal had
made the complaint and that the Australian Building and Construction
Commission was investigating the complaint.
88. On 30 June 2011 Mr Benstead telephoned Leigh Chiavaroli. He told
him not to talk to the Australian Building and Construction
Commission unless he was forced to do so. Mr Benstead made clear to
Leigh Chiavaroli the CFMEU’s view that getting the Australian
Building and Construction Commission involved would only hold the
job up. He said that the CFMEU would take unnecessary industrial
action if a contractor complained to the Australian Building and
Construction Commission. A recording of the call was played to the
Commission. Mr Benstead said, in a very aggressive, tense, energetic,
passionate and intimidating way:
And he goes talking to the ABCC … if Johnny Setka ever hear him about that that would be a friggin - that’ll be the end of it, right, if they hear about the fact that you’re talking to them and you’re running to them all the time, right.111
…
110 Leigh Chiavaroli, witness statement, 8/7/14, para 179. 111 Leigh Chiavaroli MFI-1, 8/7/14, T:3.29-4.2.
1556
Forget about the law. I can do it another way. Do you want me to do it by the law, what I’ll do is I’ll push - serve paperwork to the company that gives me the entitlement to put bans on the job in pursuit of an enterprise agreement.112
…
Everything works on a bit for youse and a bit for us. Forget about the law,
right.113
Mr Setka flexes his muscle on site
89. On 21 September 2011, Leigh Chiavaroli received a call from Mr
Setka in relation to Mr Paul Costa of Costa Constructions Pty Ltd. He
was a subcontractor engaged to provide concreting services on the
Pentridge Village site.
90. Mr Setka said during the call:
I know that you have a concreter on site by the name of Paul Costa. I hate the cunt. I’m going to come down there, rip his head off, shit down his throat, and bury his head next to Ned Kelly’s.114
91. Mr Setka then demanded that Leigh Chiavaroli remove Mr Costa from
the site. Leigh Chiavaroli was told to ‘get rid of him’.115 When
pressed for a reason Mr Setka said:
Because ten years ago I had a blue with him and he used to work for Daniel Grollo and I hate Grollo, I can’t stand the cunt.116
112 Leigh Chiavaroli MFI-1, 8/7/14, T:4.12-16. 113 Leigh Chiavaroli MFI-1, 8/7/14, T:5.13-14. 114
Leigh Chiavaroli, witness statement, 8/7/14, para 182. 115 Leigh Chiavaroli, witness statement, 8/7/14, para 182. 116
Leigh Chiavaroli, witness statement, 8/7/14, para 182.
1557
92. Mr Setka also threatened to ‘throw’ Mr Costa off site if Leigh
Chiavaroli did not comply with Mr Setka’s demands to have Mr Costa
removed from the site.
Mr Setka’s call about Mr Onal
93. On 27 September 2011 Mr Setka left a voicemail message on Leigh
Chiavaroli’s mobile telephone in relation to Mr Onal saying:117
Leigh, its John Setka, can you please give me a ring about this fucking dog Turkish fucking painting piece of shit on your job on …
94. The recording of this voice message was stored on Leigh Chiavaroli’s
phone. It was played to the Commission.118 Mr Setka was shouting
almost uncontrollably.
Disposing of Mr Bonnici’s evidence
95. Mr Bonnici was not a truthful witness, and his evidence cannot be
preferred to that of the Chiavarolis.
96. In his statement Mr Bonnici made a number of very serious allegations
against the Chiavarolis. They were false allegations that should never
have been made. Many of them had nothing to do with the issues
under consideration by the Commission. It was yet another example of
the CFMEU’s tendency to engage in slur campaigns against witnesses
who were willing to give evidence against them.
117 Leigh Chiavaroli, witness statement, 8/7/14, para 220; Leigh Chiavaroli, MFI-2, 8/7/14. 118 Leigh Chiavaroli, 8/7/14, T:29.35.
1558
97. In this regard, Mr Bonnici gave evidence that he was sacked by the
Chiavarolis and escorted off the site. Security camera footage of the
parting meeting between these parties was played before the
Commission and the witness. It demonstrated that Mr Bonnici’s
evidence was a lie.119
98. Other examples of the deficiencies in Mr Bonnici’s evidence may be
given. He alleged the Chiavarolis had mistreated contaminated soil.120
Documents showed that statement to be false.121 He alleged that Leigh
Chiavaroli requested Mr Bonnici to bribe an employee of a power
company to have certification completed as quickly as possible to
obtain certificates of occupancy.122 Documents revealed that this could
not have been so.123
E - CONCLUSIONS
99. This case study illustrates the way in which officers of the CFMEU,
and persons appointed by them to act on the CFMEU’s behalf, misuse
their powers and position in order to force builders, subcontractors and
workers to enter into agreements and join a union against their will.
100. Mr Setka is the most senior official in the Construction and General
Division in Victoria. He has behaved towards the Chiavarolis and their
companies, both directly and through his delegates Mr Sucic and Mr
119 Bonnici MFI-1. 120 Michael Bonnici, witness statement, 18/9/14, para 22. 121
Bonnici MFI-2, tabs 10, 14. 122 Michael Bonnici, witness statement, 18/9/14, para 24. 123
Bonnici MFI-2, tab 16.
1559
Dadic, in an intimidating and unsavoury way. He misused his position
and power.
101. It is not lawful to attempt to force people to join a trade union, and to
exclude them from a work site if they refuse.124 It is not lawful to
attempt to force contractors to sign an enterprise bargaining agreement,
and to exclude them from a site if they refuse.125 It is not permissible
to seek to interfere in the contractual relationship between a developer
and a subcontractor by applying pressure to the subcontractor to
increase price. It is not lawful to make threats in order to encourage a
developer to use or not use a particular subcontractor.126
102. Yet this is how the CFMEU officials and delegates under consideration
- Mr Setka, Mr Benstead, Mr Sucic and Mr Dadic - may have behaved.
103. Even if Mr Setka and others initially held strong and genuine concerns
about safety on the site, that does not excuse the behaviour that is now
under consideration. That behaviour was not motivated by a concern
for safety. It was motivated by a desire to control the work site and the
workers on it, increase the membership base of the union, and increase
the number of subcontractors bound to the CFMEU’s form of
enterprise bargaining agreement (the terms of which require
subcontractors to make payments to Incolink and Cbus, two companies
in which the CFMEU has a substantial financial interest).
124 Fair Work Act 2009 (Cth), s 346. 125 Fair Work Act 2009 (Cth), s 343. 126
Fair Work Act 2009 (Cth), s 355.
1560
104. The demands and threats made in relation to Paul Costa, the Turkish
painter, Mr Oral and the Australian Building and Construction
Commission had nothing to do with safety. The pressure applied to
workers to join the union had nothing to do with safety. It was Mr
Sucic’s and Mr Dadic’s job to ensure that the safety systems on site
were adequate. The workers did not need to be union members in
order for Mr Sucic and Mr Dadic to do their job.
105. The facts set out above indicate that Mr Setka and Mr Benstead may
have breached s 355 of the Fair Work Act 2009 (Cth). That prohibits a
person from organising or taking action against another person with
intent to coerce the other person to employ or not employ a person or
engage or not engage a particular independent contractor (or
threatening to do so). The evidence indicates one or other of them
threatened to take industrial action against the Chiavarolis and the
companies associated with them unless they employed Mr Dadic,
unless Construction Safety and Training Services Pty Ltd employed by
Mr Sucic, and unless XL Concrete was retained.
106. The CFMEU appeared to submit that s 355 did not apply to coercion
by Mr Setka of Pentridge Village to procure Construction Safety and
Training Services Pty Ltd to employ Mr Sucic to employ services
which Pentridge Village requested Construction Safety and Training
Services Pty Ltd to perform. That submission is rejected. Section 355
is not limited to coercion by Mr Setka of Pentridge Village to employ
Mr Sucic.
107. Further, Mr Sucic and Mr Dadic may have breached s 346 of the Fair
Work Act 2009 (Cth). That prohibits a person from taking adverse
1561
action against another person because the person is not a member of an
industrial association.
108. Sections 346 and 355 are civil penalty provisions.
109. It is recommended that this Interim Report and any other relevant
materials be referred, pursuant to s 6P of the Royal Commissions Act
1902 (Cth) and every other enabling power, to the Fair Work Building
Inspectorate in order that consideration may be given to whether
proceedings should be commenced and carried on against:
(a) each of Anton Sucic and Ivan Dadic for taking adverse action
against a person because they were not a member of an industrial
association contrary to s 346 of the Fair Work Act 2009 (Cth);
and
(b) each of John Setka and Gerard Benstead for coercion by
allocating duties to a particular person contrary to s 355 of the
Fair Work Act 2009 (Cth).
1562
CHAPTER 8.11
ANDREW ZAF
1. This chapter relates to the conduct of officers of the Victorian Branch
of the Construction & General Division of the Construction, Forestry,
Mining and Energy Union towards Mr Andrew Zaf.
2. Shortly before this Interim Report was completed, material came to the
Commission’s attention which requires investigation before any
concluded findings can be made. There has been insufficient time to
carry out that investigation.
3. For those reasons nothing further should be said at this stage.
1563
1564
CHAPTER 8.12
LIS-CON’S QUEENSLAND LOCKOUT
1. This chapter concerns the alleged conduct of officers of the
Queensland Branch of the Construction & General Division of
the Construction, Forestry, Mining and Energy Union (the
CFMEU) towards Lis-Con Concrete Constructions Pty Ltd and
Lis-Con Services Pty Ltd. These companies are referred to either
as the Lis-Con companies or Lis-Con.
2. The officers in question are Mr Michael Ravbar (Branch
Secretary), Mr Peter Close (Branch Assistant Secretary), Mr
Greg McLaren (organiser) and Mr Bud Neiland (organiser).
3. Lis-Con alleges, and the CFMEU denies, that the CFMEU
engaged in an ‘industrial campaign’ against Lis-Con so as to
have it removed from work sites in Queensland as a result of Lis-Con failing to accede to the CFMEU’s demands.
4. Counsel assisting submitted that there was insufficient evidence
to support the making of adverse findings against the CFMEU or
the officers referred to above.1
1 Submissions of Counsel Assisting, 31/10/14, para 4.
1565
5. Not surprisingly, the CFMEU in this instance agreed with
counsel assisting.2
6. However, counsel for Mr O’Neill and the Lis-Con companies
took issue with this unwonted consensus - very strongly.3
7. For various reasons there is some force in her submissions. The
main reason concerns the Cbus scandal. Although Mr Fitzpatrick
was the witness who first gave direct evidence about it, counsel
for Mr O’Neill and the Lis-Con companies pursued the Cbus
scandal strongly. That is because her clients were the victims of
the Cbus-CFMEU misbehaviour. The fact that the CFMEU was
prepared to go to those lengths is a sign of a strong motivation.
That motivation could well spring out of a ‘war’.
8. The position should be reviewed when the examination of the
Cbus scandal - in which there are frequently new developments -
is complete. The origins of the Cbus scandal may cast light on
the important question whether there was such a thing as ‘Lis-Con’s Queensland lockout’. But no findings will be made at this
stage.
2 Submissions on behalf of the CFMEU, 14/11/14, Pt 8.12, para 3. 3 O’Neill/Lis-Con submissions, Chapters 8.3, 8.12, 14/11/14, paras 53-63.
1566
PART 9: HEALTH SERVICES UNION
CHAPTER 9
RIGHT OF ENTRY PERMIT TESTS
Subject Paragraph
A - INTRODUCTION 1
B - RIGHT OF ENTRY TESTING 5
C - CRITICAL FACTUAL DISPUTES 9
Did Ms Lee sit online tests for Mr Rowe and Mr Eden? 11
Did Ms Lee sit online tests for Mr Rowe and Mr Eden? - evidence of Pik Ki (Peggy) Lee 12
Did Ms Lee sit online tests for Mr Rowe and Mr Eden? - evidence of David Eden 30
Did Ms Lee sit online tests for Mr Rowe and Mr Eden? - evidence of Darryn Rowe 45
Did Ms Kitching sit online tests for Ms Asmar and others? 53
Did Ms Kitching sit online tests for Ms Asmar and others? - evidence of Robert McCubbin 57
1567
Subject Paragraph
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Sandra Porter 62
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Jayne Govan 64
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Lee Atkinson 68
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Nick Katsis 70
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Saso (Sasha) Trajcevski-Uzunov 78
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Alexander Leszcynski 86
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Robert Morrey 87
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Kimberley Kitching 89
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Diana Asmar 98
Did Ms Lee sit online tests for Ms Asmar and others? - assessment of the various witnesses 102
Did the conduct of Ms Kitching and Ms Lee occur at the direction of Ms Asmar? 111
D - CONSEQUENCES OF FACTUAL FINDINGS 114
Mr McCubbin’s application 115
Applications of Mr Eden and Mr Rowe 122
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Subject Paragraph
Ms Asmar’s application 124
The other organisers’ applications 125
Recommendations 128
E - A PRELIMINARY POINT 129
A - INTRODUCTION
1. This chapter of the Interim Report deals with events in and concerning
the HSU Victorian No 1 Branch, now known as the Health Workers’
Union, in 2013 (No 1 Branch).
2. Ms Diana Asmar has since 21 December 2012 been the Secretary of
the No 1 Branch. The Commission has heard evidence raising a
number of concerns relating to Ms Asmar’s discharge of her duties as
Secretary. It includes allegations of autocratic hiring and firing of
staff, the appointment to paid positions of Ms Asmar’s friends and
acquaintances, bullying, attempting to undermine the outcome of the
democratic elections, and serious lack of proper practices. These
allegations will not be analysed in this Interim Report.
3. The Interim Report will, however, deal with a discrete but most serious
issue. It relates to whether Ms Asmar directed and acquiesced in the
General Manager of the No 1 Branch, Ms Kimberley Kitching, and a
then industrial officer, Ms Pik ki (Peggy) Lee, sitting online right of
entry tests purportedly carried out by other organisers, thereby falsely
1569
and deceitfully obtaining right of entry permits for a number of
organisers.
4. Ms Kitching sat an online right of entry test for Ms Asmar on 25
January 2013 and for a number of other organisers on 15 February
2013. Ms Lee sat the online test for Mr Darryn Rowe on 20 March
2013 and for Mr David Eden on 26 March 2013. All this occurred
with the knowledge and at the direction of Ms Asmar. The reasons for
these findings are stated below. They are based on the submissions of
counsel assisting, subject to challenges from counsel for Ms Asmar,
Ms Kitching and other officials.
B - RIGHT OF ENTRY TESTING
5. In order to enter workplaces, union officials must have a right of entry
permit issued by the Fair Work Commission.1
6. Each application for a right of entry permit contains a declaration
which provides, among other things, that the proposed permit holder
has received the appropriate training.2 The declaration must be signed
by a member of the Branch Committee of Management. The
declaration specifically states that the proposed permit holder has:3
(a) … received appropriate training about the rights and responsibilities of a permit holder, namely: The ACTU Federal Right of entry online training course completed on [insert date].
1 Fair Work Act 2009 (Cth), ss 498 and 512. 2 Fair Work Commission Rules 2013 (Cth), r 51(1). 3
McCubbin MFI-1, 25/8/14, pp 1782-1784.
1570
7. The usual practice was that Ms Asmar signed these forms and indeed,
she signed all of the forms for the applicants set out in paragraph 54
below and for Mr Rowe and Mr Eden.4
8. In order to show that the online training has been completed, proposed
permit holders must complete an online test. If they pass this test, a
certificate of completion is generated.
C - CRITICAL FACTUAL DISPUTES
9. There are three hotly contested factual disputes. Did Ms Kitching sit
the test for Ms Asmar on 25 January 2013 and for a number of other
organisers on 15 February 2013? Did Ms Lee sit the online test for Mr
Rowe on 20 March 2013 and Mr Eden on 26 March 2013? If this
conduct occurred, did it occur with the knowledge and at the direction
of Ms Asmar, and in the case of Ms Lee, at the direction of Ms
Kitching also?
10. It is convenient to deal with the second question first, because an
assessment of that matter bears upon the answer to the first question.
Did Ms Lee sit online tests for Mr Rowe and Mr Eden?
11. The relevant witnesses in relation to this issue were Ms Lee, Mr Rowe
and Mr Eden. Ms Lee’s evidence was that she sat the test for Mr Rowe
on 20 March 2013 and for Mr Eden on 26 March 2013 at the direction
of Ms Asmar and Ms Kitching. Mr Rowe and Mr Eden denied this and
said they sat their own test.
4 McCubbin MFI-1, 25/8/14, pp 34, 123, 634, 1149, 1411, 1599, 2083.
1571
Did Ms Lee sit online tests for Mr Rowe and Mr Eden? - evidence of Pik Ki
(Peggy) Lee
12. From January 2013 Ms Lee continued in her role as Industrial
Assistant.5 On 13 February 2013 Ms Lee went on holiday to Hong
Kong.6 Ms Lee returned to Australia on 6 March 2013 and appears to
have returned to work shortly thereafter.
13. Ms Lee testified that after returning from leave she was handed a
bundle of permits and asked to deal with them. She said that she took
the bundle of applications, certificates and test results into Ms
Kitching’s office and discussed the issue with Ms Kitching.7
14. Ms Lee testified that Ms Kitching told her that she had completed the
right of entry tests for various organisers. Ms Lee recounted that Ms
Kitching became excited about the fact that she had achieved a perfect
score (100%) in some of the tests.8
15. It was clear to Ms Lee that Ms Kitching was talking about having
completed the right of entry tests for the organisers whose forms were
in the bundle of documents that had been handed to Ms Lee and which
5 Peggy Lee, witness statement, 25/8/14, para 14. A copy of Ms Lee’s statement of evidence is contained within McCubbin MFI-1, p 100. For ease of reference references to the six volume McCubbin MFI-1 will be given by reference to the number of the folder followed by the relevant page. Thus the statement of Peggy Lee is at 1/100. 6
Peggy Lee, witness statement, 25/8/14, para 38; 1/106. 7 Peggy Lee, witness statement, McCubbin MFI-1, 25/8/14, para 44; 1/107. 8
Peggy Lee, witness statement, 25/8/14, para 45.
1572
she had taken into Ms Kitching’s office. These included Mr Sherriff,
Mr Katsis, Mr McCubbin, Ms Govan and Mr Trajcevksi-Uzunov.9
16. On 15 March 2013 Ms Lee sent an email to Ms Govan, Mr Trajcevski,
Mr Sherriff, Mr Atkinson and Mr Mitchell. She copied in Ms Kitching
and Ms Asmar. The email advised them that their right of entry permit
applications had been lodged with the Fair Work Commission.10
17. Ms Lee gave evidence that around this time, Ms Asmar told the
organisers to forward the emails they had received from the ACTU
containing their course access passwords to Ms Kitching.11 Ms Lee
said that as far as she knew, one could only access an organiser’s
online test and coursework if one had that organiser’s password.12
18. Ms Lee realised that Mr David Eden and Mr Darryn Rowe had not
completed their right of entry tests. This was in part because they were
country organisers and were not always in the city office. Ms Lee
raised the issue with Ms Kitching. At some stage while Mr Eden and
Mr Rowe were in the branch office Ms Kitching asked them to sign a
F42 Application for Permit forms although they were not dated at that
time. Ms Lee said that she asked them to sign these forms before they
had done the test so that she could have signed forms ready to process
once their tests had been done.13
9 Peggy Lee, witness statement, McCubbin MFI-1, 25/8/14, paras 44-46, 50; 1/107-108. 10 Peggy Lee, witness statement, McCubbin MFI-1, 25/8/14, 1/118. 11
Peggy Lee, witness statement, 25/8/14, para 29. 12 Peggy Lee, witness statement, 25/8/14, para 30. 13
Peggy Lee, witness statement, 25/8/14, paras 52-54; 1/109.
1573
19. Ms Lee’s evidence was that at about this time Ms Asmar and Ms
Kitching asked her to sit the tests for Mr Eden and Mr Rowe.14 Ms
Lee resisted at first because she regarded it as wrong for her to do tests
for other people. On 18 or 19 March 2013 Ms Lee seems to have
accessed Mr Rowe’s course details to check whether he had done his
test and confirmed that he had not. Ms Lee testified:15
This was a time of significant stress for me because Diana had been angry that the tests had not been done and Kimberly had been constantly asking me about them.
20. Ms Lee further testified that she was working at the HSU on a
sponsored visa and felt under immense pressure to keep her job. Ms
Lee testified:16
Because of how angry Diana had been and the pressure I felt from Kimberly, I felt that if I did not complete the ROE tests for Darryn Rowe and David Eden that I might be fired and my visa would immediately be at risk.
21. Ms Lee testified that although she knew it was wrong and although she
found it stressful and distressing she decided that she would complete
the right of entry tests for both Mr Rowe and Mr Eden.17
22. On 18 March 2013 at 2.14pm, Mr Rowe forwarded his Australian
Council of Trade Unions (ACTU) enrolment letter which included his
login and password to Ms Lee.18
14 Peggy Lee, 25/8/14, T:478.30-34; Peggy Lee, 16/9/14, T:995.22-26, 997.7-.21 15 Peggy Lee, witness statement, 25/8/14, para 60; 1/110. 16
Peggy Lee, witness statement, 25/8/14, para 62; 1/111. 17 Peggy Lee, witness statement, 25/8/14, para 63; 1/111. 18
McCubbin MFI-1, 25/8/14, 1/137; 1/22.
1574
23. On 20 March 2013, according to records created by the ACTU, Mr
Rowe’s online test was commenced at 9.07pm (AEST). Ms Lee’s
evidence is that the IP address recorded on the ACTU record was that
of her home computer. Ms Lee said that she completed the test from
her home address on the evening of 20 March 2013.19 On 20 March
2013 at 10.34pm a ‘Certificate of ‘Completion’ for Mr Rowe was sent
via email from the ACTU.20
24. As noted above Ms Lee had already caused Mr Rowe to sign a Form
F42 - Application for an Entry Permit in relation to Mr Rowe.
25. On the morning of 21 March 2013 Ms Lee collated the necessary
forms and documents and asked Ms Asmar to sign the Form F42
application. Ms Asmar did so, dating it 21 March 2013.21
26. On 21 March 2013 at 9.21am Ms Lee sent this Form F42 by email to
the Fair Work Commission.22 On the same day the Fair Work
Commission received Mr Rowe’s signed and completed Form F42
application.23
27. On 26 March 2013 Ms Lee deposes that she sat the online test for Mr
Eden, commencing at 8.51am (AEST).24 On 26 March 2013 at
19 Peggy Lee, witness statement, 25/8/14, para 65-66; 1/111. 20 McCubbin MFI-1, 25/8/14, 1/154. 21
Peggy Lee, witness statement, 25/8/14, 1/34. 22 Peggy Lee, witness statement, 25/8/14, para 69; 1/129. 23
McCubbin MFI-1, 25/8/14, 3/1001. 24 Peggy Lee, witness statement, 25/8/14, para 76; McCubbin MFI-1, 25/8/14, 1/113.
1575
10.16am (AEDT) a ‘Certificate of ‘Completion’ for Mr Eden was sent
via email from ACTU.25
28. Again, Mr Eden had previously signed the form F42. Ms Lee printed
out Mr Eden’s certificate of completion and wrote in the date
‘26/3/2013’ above his signature.26 On 26 March 2013 Ms Lee also
arranged for Ms Asmar to sign and date her part of Mr Eden’s
application.27
29. Later that morning, at 10.39am (AEDT) on 26 March 2013, Ms Lee
sent an email to the Fair Work Commission attaching the form F42 and
the signed declaration by both Ms Asmar and Mr Eden.28 On the same
day the Fair Work Commission received Mr Eden’s signed and
completed Form F42 application.29
Did Ms Lee sit online tests for Mr Rowe and Mr Eden? - evidence of David
Eden
30. As noted above, Ms Lee deposed that she sat the online test for Mr
Eden on 26 March 2013, in the No 1 Branch office in Melbourne. Mr
25 McCubbin MFI-1, 25/8/14, 1/419; Peggy Lee, 25/8/14, T:483.39-4. 26 Peggy Lee, witness statement, 25/8/14, para 79. 27
Peggy Lee, witness statement, 25/8/14, para 79; 1/113; 25/8/14 T:484.45-46;484.1-5. 28 Peggy Lee, witness statement, 25/8/14, McCubbin MFI-1, 25/8/14, 1/132; McCubbin, MFI-1, 25/8/14, 1/416-417. 29
McCubbin MFI-1, 25/8/14, 3/1001.
1576
Eden gave evidence that this was not true.30 He clearly remembered
sitting the test himself.31
31. The first difficulty in accepting Mr Eden’s evidence is that he has
propounded numerous versions of events at different times. On 12
September 2013 Mr Eden made a statutory declaration which stated,
among other things, that he completed the ACTU Fair Work Right of
Entry Online Training Course on 26 March 2013.32
32. In his oral evidence, Mr Eden retreated from this statement:
Q. You knew that this stat dec was false when you signed it, that’s right isn’t it?
A. No, that’s not correct. I thought it was correct at the time. My recollection wasn’t correct.
Q. What do you mean by that, Mr Eden? You thought it was correct?
A. That’s right. I thought it was correct when I signed it but I don’t believe that - it may well have been 26 March, it may not have been. It was a long time ago.33
33. As appears from this evidence Mr Eden was apparently sure on 12
September 2013 that he had sat the test on 26 March 2013, but had
ceased to be sure of that fact at some later point.
34. However he was still sure on 26 November 2013. On that date the
solicitors for the No 1 Branch, Holding Redlich, sent a detailed letter to
30 David Eden, 19/9/14, T:1011.19-20. 31 David Eden, witness statement, 19/9/14, para 20. 32
McCubbin MFI-1, 25/8/14, 2/585. 33 David Eden, 19/9/14, T:1005.21-30.
1577
the Fair Work Commission addressing various allegations that had
been raised concerning the obtaining of right of entry permits.34 This
letter included the following concerning the completion of the test by
Mr Eden:
In relation to Mr Eden, the ACTU record shows that Mr Eden undertook his ROE test on 26 March 2013 at 8.51am and the time taken was 21 minutes and 49 seconds. Mr Eden has provided a Statutory Declaration as requested by you and further instructs that he came down to Melbourne on the afternoon of 26 March 2013 to do his test - he did not do the test at 9.14am that day. To the best of his recollection, it took longer than the 21 minutes and 49 seconds set out in the ACTU record. Mr Eden also recalls that Ms Kitching opened up the computer for him and that Mr Rowe also came down from Bendigo that afternoon to do his test.35 (emphasis added)
35. Mr Eden accepted that he gave instructions to someone at Holding
Redlich for the purposes of him or her drafting and sending this
letter.36 It follows that as at 26 November 2013 Mr Eden gave
instructions to Holding Redlich to the effect that he did the test on 26
March 2013, and indeed was able to recall not only that he did the test
in the afternoon, but also incidental details to the effect that Ms
Kitching opened the computer for him and that Mr Rowe sat the test on
the same afternoon.
36. On 19 December 2013 Mr Eden was interviewed by representatives of
the Fair Work Commission. A transcript of that interview is in
evidence.37 Mr Eden was accompanied by Mr David Shaw from
Holding Redlich. The representatives of the Fair Work Commission
34 McCubbin MFI-1, 25/8/14, 1/407. 35 McCubbin MFI-1, 25/8/14, 1/409-410. 36
David Eden, 19/9/14, T:1006.8-13. 37 McCubbin MFI-1, 25/8/14, 1/421.
1578
conducting the interview were Mr Enright and Ms Fraser. In that
interview Mr Eden said that he recalled doing his test in the evening of
26 March 2013 not in the morning.38 He said that he remembered Mr
Rowe being present when he did his test and that Mr Rowe had done
the test after Mr Eden did his.39
37. By the time Mr Eden gave evidence in the Commission his position
had changed again. When asked about what he said to the Fair Work
Commission concerning his alleged recollection of Ms Kitching
opening up the computer for him and Mr Rowe coming down from
Bendigo in the afternoon to do the test as set out in paragraph 34 above
he said, ‘I was confused’.40 He also retreated from the proposition that
he had observed Mr Rowe doing his right of entry test on the afternoon
of 26 March 2013. He said again that he was confused and added ‘I
did not witness him do his right of entry test that afternoon’.41
38. Mr Eden’s evidence in his witness statement was to the following
effect:42
Because so much time had passed, I do not know what time of day or what date I did the ROE test. I remember that I came especially to Melbourne to do the test. I also clearly remember that I did the test myself.
39. Written submissions filed on behalf of a number of individuals
including Mr Eden argued that Mr Eden should be believed because he
is the President of the Health Workers’ Union (HWU), has been a
38 McCubbin MFI-1, 25/8/14, 2/465. 39 McCubbin MFI-1, 25/8/14, 2/467. 40
David Eden, 19/9/14, T:1007.46. 41 David Eden, 19/9/14, T:1008.22. 42
David Eden, witness statement, 19/9/14, para 20.
1579
nurse for 26 years, and it is ‘possible’ that both he and Ms Lee sat the
test and the relevant documentary records were incomplete.43
40. In the circumstances the fact of Mr Eden’s position carries no weight.
As to the possibility that multiple tests were completed, Mr Eden does
not point to any records which indicate that the test was carried out by
him or on his behalf on any day other than 26 March 2013. At
10.16am (AEDT) on that day, he was sent a ‘Certificate of
Completion’ via email. If he had already completed the test, he would
have already received such a certificate. Would he not have
questioned why he was receiving a second certificate? If he completed
the test after 26 March 2013, he would have received a later certificate.
There is no evidence of such a certificate. The contention that it was
‘possible’ that Mr Eden completed the test on a day other than 26
March 2013 must be rejected. One test was completed on the morning
of 26 March 2013.
41. Yet Mr Eden was in Bendigo, on the morning of 26 March 2013, as
appears from his phone records. When asked about those telephone
records the examination proceeded as follows:44
Q. One point we draw from that is that you are certainly at Bendigo when the test was done on the morning of 26 March; that’s right?
A. If this is my phone record, it would indicate that.
Q. You know it’s your phone record, Mr Eden. You’ve just said you had produced it to the Fair Work Commission that’s correct?
43 Submissions on behalf of named No 1 Branch officials, 14/11/14, paras 24-25. 44 David Eden, 19/9/14, T:1009.5-17.
1580
A. That’s right, we volunteered that information to the Fair Work Commission.
Q. So you know it is your phone record?
A. I believe it to be my phone record, yes.
42. Ms Lee’s evidence should be accepted. Ms Lee have her evidence in a
careful and thoughtful way. It carries significant weight because it is
against interest. It is consistent with the documentary records. It has
remained unchanged. Whilst the submissions filed on behalf of the No
1 Branch officials alleged that other persons who gave evidence
against interest had a motive to inculpate Ms Asmar, no such
submission was advanced in respect of Ms Lee. In contrast, Mr Eden
repeatedly changed his evidence. His only explanation for the many
competing versions was to say that he was ‘confused’.
43. On the evidence before the Commission, Ms Lee sat Mr Eden’s online
test on the morning of 26 March 2013.
44. A further submission was made that there is no evidence that Mr Eden
asked Ms Lee to complete his test, or that he knew Ms Lee had done
his test, or that he knew of any request for Ms Lee to complete the test
on his behalf.45 It is true there is no evidence before the Commission,
but that is irrelevant. Mr Eden allowed a declaration to be submitted to
the Fair Work Commission which was false or misleading in that he
stated that he had received the required training when he had not. Mr
Eden had a duty to correct the misleading declaration.
45 Submissions on behalf of named No 1 Branch officials, 14/11/14, para 26.
1581
Did Ms Lee sit online tests for Mr Rowe and Mr Eden? - evidence of
Darryn Rowe
45. The evidence of Mr Darryn Rowe was similarly problematic. The
letter of 26 November 2013 from Holding Redlich to the Fair Work
Commission included the following:
As to Darryn Rowe, he does not agree that he did the test on 20 March 2013 starting at 9.08pm. Mr Rowe instructs that he, like Mr Eden, did his test on 26 March 2013. He recalls that both he and Mr Eden attended a meeting at 2.00pm in Bendigo and, following the conclusion of that meeting, they both drove to Melbourne to undertake the test.
46. Mr Rowe’s story then changed: he told the Commission that he
completed the test on 20 March 2013 as per the ACTU record.46
47. In his oral evidence Mr Rowe accepted that someone from Holding
Redlich asked him for an account of what had happened regarding his
online test and that he knew that this was for the purposes of
responding to the investigation that the Fair Work Commission was
conducting.47 It was put to Mr Rowe that he had been careful to give a
truthful account to Holding Redlich and Mr Rowe accepted this and
agreed he gave those instructions to Holding Redlich in November
2013.48
48. In his oral evidence Mr Rowe attempted to explain the discrepancy in
his evidence by saying that when he was interviewed by Holding
Redlich he could not remember when he had sat the test so he
46 Darryn Rowe, 19/9/14, para 8. 47 Darryn Rowe, 19/9/14, T: 1022.5-12. 48
Darryn Rowe, 19/9/14, T:1022.14-39; 1026.25-32.
1582
discussed it with Mr Eden who suggested to him that they had travelled
to Melbourne from Bendigo to do the test on 26 March 2013.49 Mr
Rowe said:
Q: But you discussed it with Mr Eden, hadn’t you?
A: I had - at that stage I was -
Q: You discussed it with Mr Eden hadn’t you?
A: At that stage, if you’d let me finish, I was having trouble as far as I couldn’t remember the exact time or date that I’d done the - completed the test, and I did speak to Mr Eden to see if he could recollect when we had completed. He said, “I believe it was here”, and because we had travelled to Melbourne, there was a recollection, yes, that’s right, I had to go down to the office on that day I do remember travelling down.
49. When asked again to explain why his evidence had changed from what
he told the Fair Work Commission in November 2013, Mr Rowe
said:50
A: The evidence that was initially put forward, and as I said to you prior, I had trouble recalling, I'd started a new job which I was trying to learn, and because of the amount of travel that we were doing at the time, it was very hard to recall exactly where I was at any given time. I remember doing the right of entry, but I could not recall exactly when I did it. Because of that I spoke to David [Eden] and said, ”Look, do you remember?” He said, “Yes, I believe it was here”. I remember travelling down to Melbourne from Bendigo with him and I thought, yep, that sounds fine, that's right, more than happy. So, as things progressed I looked at, and this is as we went down, we looked at the record, ironed that, okay, yes, I remember where I was clearly.
Q. So your memory gets better and better over time, does it, Mr
Rowe?
49 Darryn Rowe, 19/9/14, T:1027.28. 50 Darryn Rowe, 19/9/14, T:1027.18-38.
1583
A. Yeah.
50. Submissions filed on behalf of Mr Rowe did not appeal to Mr Rowe’s
position in the union, or the fact that he is nurse, as a reason for
accepting his account. But they advanced the same argument as was
made on behalf of Mr Eden: it was ‘possible’ that both he and Ms Lee
sat the online test on 20 March 2013 and the ACTU records were
incomplete.51 For reasons similar to those articulated in respect of Mr
Eden, that possibility should be rejected as fanciful.
51. Mr Rowe was an unconvincing witness. His story has changed
repeatedly over time. His first attempt to defeat the allegations, when
raised by the Fair Work Commission, was, in effect, to deny the
accuracy of the computer records as to the time and date his test was
done. After being confronted with evidence that the computer records
were correct, Mr Rowe’s evidence also changed and he told the
Commission that he completed the test on 20 March 2013 (not 26
March 2013 as previously claimed), a new story which attempted to fit
with what was shown on the ACTU record as to the timing and date
the test was done.
52. Ms Lee’s evidence that she sat Mr Rowe’s online test on the evening of
20 March 2013 should be accepted. As with Mr Eden, a submission
was made that there is no evidence that Mr Rowe asked Ms Lee to
complete the test on his behalf and there is no evidence that he knew of
any request for Ms Lee to complete the test on his behalf.52 The
51 Submissions on behalf of named No 1 Branch officials, 14/11/14, para 29. 52 Submissions on behalf of named No 1 Branch officials, 14/11/14, para 29.
1584
answer to that submission is the same as the answer in relation to Mr
Eden.
Did Ms Kitching sit online tests for Ms Asmar and others?
53. The next issue is whether Ms Kitching sat the online right of entry test
for Ms Asmar on 25 January 2013 and for a number of other organisers
on 15 February 2013.
54. The ACTU’s records demonstrate that on 15 February 2013, a series of
right of entry online tests were conducted as follows:53
(a) Mr Lee Atkinson’s right of entry online test was opened at
9.02am (10.02am AEDT) and concluded at 9.14am (10.14am
AEDT),;
(b) Ms Jayne Govan’s right of entry online test was commenced
1 minute later, at 9.25am (10.25am AEDT) and concluded at
9.34am (10.34am AEDT), in 9 minutes and 9 seconds;
(c) Mr McCubbin’s right of entry online test was undertaken at
1.56pm (2.56pm AEDT) and concluded at 1.59pm (2.59pm
AEDT), in 2 minutes and 49 seconds;
(d) Mr Dean Sherriff’s right of entry online test was undertaken
at 2.10pm (3.10pm AEDT) and concluded at 2.12pm (3.12pm
AEDT), in 2 minutes and 31 seconds;
53 McCubbin MFI-1, 25/8/14, pp 1396, 1501, 1512, 1698.
1585
(e) Mr Saso (Sasha) Trajcevski-Uzunov’s right of entry online
test was undertaken at 2.54pm (3.54pm AEDT) and
concluded at 2.56pm (3.56pm AEDT), in 1 minute and 57
seconds; and
(f) Mr Nick Katsis’s right of entry online test was undertaken at
3.00pm (4.pm AEDT) and concluded at 3.02pm (4.02pm
AEDT), in 2 minutes.
55. In summary, Ms Govan and Mr McCubbin gave sworn evidence that
they did not sit their respective tests. This was not challenged. Who
sat them? Their evidence was that it was Ms Kitching. The evidence
of Ms Lee, which has already been recounted, was to the same effect.
Ms Kitching denied this. She also denied that she sat the test for Ms
Asmar and for Messrs Atkinson, Trajcevski-Uzunov and Katsis. This
latter denial of Ms Kitching was supported by the evidence of Ms
Asmar and Messrs Atkinson, Trajcevski-Uzunov and Katsis.
56. It is necessary first to recount the evidence of the relevant witnesses.
Given the overlapping and conflicting accounts it is difficult to assess
the evidence of a number of the witnesses in isolation. In those cases,
an assessment of the evidence is deferred to paragraph 102 and
following. However, where it is possible to assess a witness’s
evidence in isolation that has been done in the section concerning that
witness’s evidence.
1586
Did Ms Kitching sit online tests for Ms Asmar and others? - evidence of
Robert McCubbin
57. On 18 March 2013, an application for a right of entry permit was
lodged with the Fair Work Commission by the No 1 Branch on behalf
of Mr McCubbin. The application was dated 12 March 2013 and
included a declaration from Ms Asmar, as the Committee of
Management member making the application.
58. On the application a box had been ticked stating that the proposed
permit holder, Mr McCubbin, was an employee of the No 1 Branch
holding the position of occupational health and safety officer.54
59. Mr McCubbin gave evidence that he commenced full time employment
with the No 1 Branch as an occupational health and safety officer on
22 April 2013.55 For approximately three months prior to commencing
this role, Mr McCubbin said he had been assisting Ms Asmar on a
voluntary basis until the No 1 Branch had the funds to start paying him
wages.56 Ms Asmar gave evidence that when she signed the
declaration she knew that Mr McCubbin was not an employee of the
No 1 Branch.57
60. Mr McCubbin said that he did not receive the training referred to in his
right of entry permit application and that he knew he had not received
54 McCubbin MFI-1, 25/8/14, 4/1782. 55 Robert McCubbin, witness statement, 25/8/14, para 14; Robert McCubbin, 25/8/14, T:469.5-20. 56
Robert McCubbin, witness statement, 25/8/14, para 14. 57 Diana Asmar, 26/8/14, T:559.23-29.
1587
this training at the time he signed the application.58 Mr McCubbin said
that he signed the application at the direction of Ms Asmar.59 Mr
McCubbin said that Ms Kitching did the online test for him as well as a
number of other people including Ms Asmar, Mr Eden, Mr Katsis and
a person named ‘Sasha’.60
61. Mr McCubbin also gave evidence that he recalled attending a meeting
in April 2013 at the No 1 Branch office with his partner Ms Porter
where Ms Asmar told them that Ms Kitching had completed her right
of entry test for her and that at the upcoming industrial day she was
going to tell the No 1 Branch staff that Ms Kitching would do their
right of entry tests for them.61
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Sandra
Porter
62. Ms Porter has been Mr McCubbin’s partner since 2006. Ms Porter
gave evidence that around January to March 2013, she and Mr
McCubbin attended a barbecue at Ms Asmar’s house. Ms Porter
deposed that she recalled Ms Asmar saying that she was getting Ms
Kitching to do her right of entry test, and that Mr McCubbin would do
the same.62
58 Robert McCubbin, 25/8/14, T:469.22-46. 59 Robert McCubbin, 25/8/14, T:470.1-3. 60
Robert McCubbin, witness statement,25/8/14, para 19. 61 Robert McCubbin, witness statement, 25/8/14, para 15. 62
Sandra Porter, witness statement, 16/9/14, paras 11-12.
1588
63. Ms Porter also deposed that around the same time in early 2013, she
and Mr McCubbin attended Ms Asmar’s office at the No 1 Branch to
discuss the commencement of Mr McCubbin’s employment and other
issues. Ms Porter said that Mr McCubbin asked Ms Asmar what was
happening with the right of entry permits and testing to which she
responded that Ms Kitching had already done her test and that she had
asked her to do Mr McCubbin’s test as well.63
Did Ms Lee sit online for Ms Asmar and others? - evidence of Jayne
Govan
64. Ms Govan was an HSU Organiser in 2013. Ms Govan gave evidence
that around February or March 2013, she attended an industrial day at
the No 1 Branch offices on Park Street, Melbourne where the
following occurred:64
I recall that a number of organisers raised the issue of Right of Entry
Permits because of the difficulties we had been experiencing. Most if not
all the employees of the union would have been present at the meeting,
including most if not all of the organisers. … Diana Asmar told all of us
present that we would not be required to complete our own Right of Entry
tests and that Kimberly Kitching would be completing the tests for us.
65. Ms Govan said she understood that Ms Asmar arranged for Ms
Kitching to complete the right of entry tests for the organisers because
63 Sandra Porter, witness statement, 16/9/14, para 16. 64 Jayne Govan, witness statement dated 16 September 2013, 25/8/14, paras 13-14.
1589
the organisers did not really have time to do the tests due to their
workloads.65
66. Ms Govan gave evidence that the following people did not complete
their own right of entry tests:66
(a) Nick Katsis;
(b) Dean Sherriff;
(c) Diana Asmar;
(d) Sasha (whose surname Ms Govan could not recall);
(e) David Eden; and
(f) Rob McCubbin.
67. Ms Govan said that she, Mr Katsis, Mr Sherriff and ‘Sasha’ all
commenced their employment as organisers at the same time and they
spoke about the right of entry tests amongst themselves. Ms Govan
also said she recalled Ms Asmar boasting that Ms Kitching got around
99% or 100% when she completed Ms Asmar’s right of entry test.67
65 Jayne Govan, witness statement dated 16 September 2013, 25/8/14, para 15. 66 Jayne Govan, witness statement dated 16 September 2013, 25/8/14, para 17. 67
Jayne Govan, witness statement dated 16 September 2013, 25/8/14, paras 18-19.
1590
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Lee
Atkinson
68. Mr Atkinson is an Organiser at the HSU. Mr Atkinson gave evidence
that he did not sit his right of entry test but obtained a right of entry
permit.68 Mr Atkinson said that Ms Lee told him that she completed
his right of entry test and he got 100%.69 Mr Atkinson said that Ms
Lee did not mention Ms Kitching.70
69. On Ms Lee’s unchallenged evidence, Mr Atkinson must have been
mistaken in his recollection. Ms Lee’s evidence was that she was on
annual leave in Hong Kong from 13 February 2013 to 6 March 2013,
and during this time she did not access the online ACTU training
course or have anything to do with right of entry permits.71 Mr
Atkinson’s test was undertaken on 15 February 2013.
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Nick
Katsis
70. Mr Katsis was an Organiser with the No 1 Branch from January to
May 2013 and an Industrial Officer with the No 1 Branch from May to
June or July 2013. Mr Katsis is currently a Lead Organiser with the
No 1 Branch.
68 Lee Atkinson, 19/9/14, T:1038.7-.11;1039.10-11. 69 Lee Atkinson, 19/9/14, T:1037.42-45. 70
Lee Atkinson, 19/9/14, T:1038.3-5. 71 Peggy Lee, witness statement, 25/8/14, paras 38-39.
1591
71. Mr Katsis gave evidence that he completed his own right of entry test
during the early stages of his employment as an Organiser. Mr Katsis
denied that Ms Kitching or anyone else completed his right of entry
test for him.72 Mr Katsis told the Fair Work Commission that he
recalled taking the test on 15 February 2013 in the No 1 Branch office,
and that the test took him more than 30 minutes to complete.73
72. It is apparent from the evidence recounted above that Mr Katsis’s
evidence was contradicted by Mr McCubbin, Ms Govan and Ms Lee,
all of whom gave evidence that Ms Kitching sat Mr Katsis’s test. Ms
Govan also gave evidence that Mr Katsis had told her that Ms Kitching
sat his right of entry test.74
73. Apart from the evidence of those three witnesses, there is other
evidence that contradicts Mr Katsis’s evidence. The records of the
ACTU show that Mr Katsis’s right of entry test was commenced on 15
February 2013 at 2.59pm (AEST) or 3.59pm (AEDT) and completed
on 3.02pm (AEST) or 4.02pm (AEDT).75 At 4.03pm on that day a
generic email was sent from the ACTU to Mr Katsis attaching a
certificate of compliance for the right of entry course.76
74. The submissions filed on behalf of Mr Katsis made the submission that
the timing in relation to the ACTU computer records cannot safely be
relied upon because of the revelations in a report prepared by KPMG
72 Nick Katsis, 19/9/14, T:1059.17-37. 73 McCubbin MFI-1, 25/8/14, 4/1672. 74
Jayne Govan, 16/9/14, T:965.6-25. 75 McCubbin MFI-1, 25/8/14, p 1698. 76
McCubbin MFI-1, 25/8/14, p 1697.
1592
that Mr Katsis’s user account has been deleted on 9 July 2013 and that
there were some discrepancies in time zones in the ACTU records.77
That report was dated 11 November 2014, was attached to the back of
the submissions and was not tendered in evidence until 28 November
2014.78
75. The KPMG report does not assist Mr Katsis in relation to the
submission made on his behalf. The KPMG report specifically
accepted that on the basis of a snapshot of information as at 17
February 2013, Mr Katsis’s test on 15 February 2013 commenced at
3.00pm (AEST) and was completed at 3.01pm (AEST).79 The report
obtained by the Fair Work Commission from an independent expert,
Mr Scott Mann of Invest-e-gate Pty Ltd explained that any time
extracted from the ACTU records during the period in which daylight
savings operated, should be accounted for by adding one hour to that
time.80 Thus all of the evidence points to the conclusion that Mr
Katsis’s test was commenced at approximately 4.00pm (AEDT) on 15
February 2013 and completed 2 minutes later. The subsequent deletion
of Mr Katsis’s account on 9 July 2013 is thus irrelevant.
76. But Mr Katsis’s telephone records show that he was making a
telephone call from Malvern at 3.48pm (AEDT) on 15 February
2013.81 His diary entry for that day records that he had a meeting from
2-3 pm with delegates and members followed by a meeting with
77 Submissions on behalf of named No 1 Branch officials, 14/11/14, para 22. 78 HSU Additional Tender Bundle, 28/11/2014, Tab 1. 79
HSU Additional Tender Bundle, 28/11/2014, p 18. 80 McCubbin MFI-1, 25/8/14, p 1701. 81
McCubbin MFI-1, 25/8/14, p 1681.
1593
human resources at Cabrini Hospital.82 There is a Cabrini Hospital on
Wattletree Road, Malvern. It is approximately 8 km by road between
Cabrini Hospital and the No 1 Branch at Park Street, South Melbourne.
15 February 2013 was a Friday. It is unlikely that Mr Katsis could
have made a phone call at 3.48pm (AEST) near Malvern and then be
sitting at a computer in the No 1 Branch at Park Street to commence
his test 11 or 12 minutes later.
77. Mr Katsis’s evidence is thus inherently unlikely and contradicted by
the evidence of three other witnesses. It is not accepted.
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Saso
(Sasha) Trajcevski-Uzunov
78. Mr Trajcevski-Uzunov was an Organiser with the No 1 Branch from
late January to early April 2013.
79. Mr Trajcevski-Uzunov’s evidence was that on or about 15 February
2013 he completed an online right of entry test.83 He could not
remember the exact time or date.84 He denied that Ms Kitching
completed the test for him.85 He said that it took him a couple of
minutes to take the test and that it was the first time he sat it.86
82 McCubbin MFI-1, 25/8/14, p 1688. 83 Saso Trajcevski-Uzunov, witness statement, 19/9/14, paras 9-10. 84
Saso Trajcevski-Uzunov, witness statement, 19/9/14, para 9. 85 Saso Trajcevski-Uzunov, 19/9/14, T:1101.8-.10, 1102.11-17. 86
Saso Trajcevski-Uzunov, 19/9/14, T:1101.12-31.
1594
80. Mr McCubbin, Ms Govan and Ms Lee all gave evidence to the effect
that Ms Kitching sat Mr Trajcevski-Uzunov’s test. ‘Sasha’ was Mr
Trajcevksi-Uzunov.87
81. Ms Govan gave the most detailed evidence on this point. She deposed
that Mr Trajcevksi-Uzunov told her that he had not done his own test.
Ms Govan thought this conversation occurred when she and Mr
Trajcevski-Uzunov were travelling together in a car to a meeting at the
Kingston Centre which is part of Monash Health, Cheltenham. Ms
Govan recalled that Mr Trajcevski-Uzunov said words to the effect that
he had not done his right of entry test either and that Ms Kitching was
doing all of the organisers’ exams.88
82. Ms Govan provided information to the Fair Work Commission that Mr
Trajcevski-Uzunov accompanied her in attending a meeting at Monash
Health in the afternoon of 15 February 2013. Ms Govan said that by at
least 12.56pm on 15 February 2013, she was travelling to Monash
Health with Mr Trajcevski-Uzunov in her HSU vehicle. Ms Govan
said that she and Mr Trajcevski-Uzunov arrived at the meeting location
at approximately 2.30pm, they participated in a meeting which took
place between 3pm - 4pm and then Ms Govan drove Mr Trajcevski-Uzunov back to the No.1 Branch office in South Melbourne.89 Ms
Govan produced telephone records which showed that she was near
‘MCL Tunnels’ being the Melbourne CityLink tunnel at 12.56pm on
15 February 2013.90 This evidence supported Ms Govan’s account that
87 See, eg, McCubbin MFI-1, 25/8/14, p 1380. 88 Jayne Govan, 16/9/14, T:966.35-46; 967.1-9. 89
McCubbin MFI-1, 25/8/14, p 2067. 90 McCubbin MFI-1, 25/8/14, p 2155.
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she was travelling from South Melbourne to Monash Health on 15
February 2013. Ms Govan also produced copies of print-outs from her
electronic diary indicating the fact and timing of the meeting at
Monash Health.91 No challenge was made to that evidence.
83. The relevance of this evidence was that it demonstrated that Mr
Trajcevski-Uzunov could not have been completing his test at the time
the records show the test was completed. The ACTU records showed
that Mr Trajcevski-Uzunov’s test was commenced at 2.54pm (AEST)
or 3.54pm (AEDT) and concluded at 2.56pm (AEST) or 3.56pm
(AEDT) taking 1 minute and 57 seconds to complete.92 Mr Trajcevski-Uzunov answered all of the questions correctly.93 At 3.57pm (AEDT)
a generic email from the ACTU was sent to Mr Trajcevski-Uzunov
attaching a Certificate of Compliance for the right of entry training
course.94 Those records support the conclusion that the test was
completed at 3.56pm (AEDT).
84. When it was put to Mr Trajcevski-Uzunov that Ms Govan had said that
he was on site at Monash Health on 15 February 2013 at the time that
his right of entry test was undertaken, he said that he could not recall
where he was on that date and he could not recall being with Ms
Govan at Monash Health.95 Mr Trajcevski-Uzunov’s phone records
showed that on 15 February 2013 he made a telephone call at 2.54pm,
91 McCubbin MFI-1, 25/8/14, p 2156. 92 McCubbin MFI-1, 25/8/14, p 2164. 93
McCubbin MFI-1, 25/8/14, p 2166. 94 McCubbin MFI-1, 25/8/14, p 2167. 95
Saso Trajcevksi-Uzunov, 19/9/14, T:1101.47, 1102.1-.5.
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lasting for 0.16 minutes, which used the Moorabbin tower.96 The
timing and location of the call using the Moorabbin tower is consistent
with Ms Govan’s evidence that Mr Trajcevski-Uzunov accompanied
her to Kingston Centre, Monash Health in Cheltenham (which is an
adjoining suburb to Moorabbin) on the afternoon of 15 February 2013.
85. Mr Trajcevski-Uzunov’s evidence that he sat his own test cannot be
accepted.
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of
Alexander Leszcynski
86. Mr Leszcynski was a Senior Industrial Officer at the No 1 Branch from
late 2012 to March 2013. Mr Leszcynski’s evidence that Ms Kitching
told him that Ms Asmar was too busy to complete her right of entry
training and test so Ms Kitching was going to do it for her.97
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Robert
Morrey
87. Mr Morrey was a member of the Branch Committee of Management
from late 2012 until March-April 2013.
88. Mr Morrey gave evidence that Mr Leszcynski told him that employees
of the No 1 Branch were not permitted to do their own right of entry
96 McCubbin MFI-1, 25/8/14, p 2153. 97 Alexander Leszcynski, witness statement dated 6 January 2014, 19/9/14, para 47.
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permit applications and Ms Kitching completed the right of entry tests
and applications on their behalf. 98
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of
Kimberley Kitching
89. Ms Kitching said she was at the No 1 Branch office for part of the
morning and part of the afternoon on 15 February 2013 but denied that
she completed right of entry tests for other people that day.99 Ms
Kitching denied that she was in the No 1 Branch office at the times that
the right of entry tests referred to in paragraph 54 above were
completed.100
90. Ms Kitching produced some documentary evidence to the Commission
which establishes that she was away from the No 1 Branch office at
times during the day on 15 February 2013.101 However, taken at its
highest, all this documentary evidence shows is that Ms Kitching left
the No 1 Branch office for short periods of time during that day but
does not exclude the possibility of Ms Kitching returning to the
Branch, to sit the tests at the times recorded in the ACTU records.
91. Ms Kitching said that she attended two industrial days at the No 1
Branch office in February and March 2013. Ms Kitching said that Ms
Asmar addressed staff on various topics at both meetings but did not
98 Robert Morrey, witness statement dated 18 July 2014, 25/8/14, paras 34-35. 99 Kimberley Kitching, witness statement dated 16 September 2014, 19/9/14, paras 8-9. 100
Kimberley Kitching, witness statement dated 16 September 2014, 19/9/14, paras 8-9. 101 Kimberley Kitching, third witness statement, dated 17 September 2014, 19/9/14, paras 2,4-5; annexures A, C, D.
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say that Ms Kitching was going to complete the organisers’ right of
entry tests for them.102
92. Ms Kitching gave evidence that she never told Ms Lee, or anyone else,
that she had completed right of entry tests for organisers.103 In relation
to Ms Lee’s statement that Ms Asmar and Ms Kitching told her that
she would be sitting the right of entry tests for Mr Rowe and Mr Eden,
Ms Kitching denied this and said the conversation never took place.104
93. When asked why numerous witnesses would say that Ms Asmar told
them that Ms Kitching would sit their right of entry tests, Ms Kitching
said the following:105
Q. You heard yesterday, when you were listening to the evidence, a number of witnesses say that there was a meeting of organisers in the office in early 2013 at which Ms Asmar directed all the organisers present that you would sit the test for them?
A. What I can tell you, Mr Stoljar, is that did not happen. That conversation did not happen. I can also tell you that perhaps some of these witnesses are politically motivated. They're running on other tickets. We have elections coming up and they may be motivated by malicious purposes.
94. When asked whether Ms Lee was running for any office, Ms Kitching
said she was not, but that she helped in the previous campaign on the
ticket that ran against Ms Asmar.106
102 Kimberley Kitching, witness statement dated 16 September 2014, 19/9/14, para 33. 103 Kimberley Kitching, witness statement dated 16 September 2014, 19/9/14, para 34. 104
Kimberley Kitching, 26/8/14, T:530.14-18. 105 Kimberley Kitching, 26/8/14, T:529.18-28. 106
Kimberley Kitching, 26/8/14, T:529.38-46.
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95. Ms Kitching also proffered a reason why organisers may have given
evidence that Ms Kitching did their right of entry tests for them. The
reason was that they were ‘disgruntled former employees’.107
96. Ms Kitching gave evidence that she does not hold a right of entry
permit and has never sat the test for a right of entry permit. Ms
Kitching said she had never been instructed or asked to do a right of
entry test.108
97. Ms Kitching gave evidence that she never discussed right of entry tests
with the Senior Industrial Officer at the No 1 Branch at the time, Mr
Leszcynski.
Did Ms Lee sit online tests for Ms Asmar and others? - evidence of Ms
Diana Asmar
98. In her evidence Ms Asmar said she sat her own right of entry test and
that each organiser was required to undertake his or her right of entry
test.109
99. The ACTU records show that Ms Asmar’s right of entry test was
completed on 25 January 2013 and she scored 99%.110 Ms Asmar
107 Kimberley Kitching, 26/8/14, T:529.36. 108 Kimberley Kitching, 26/8/14, T:529:13-16. 109
Diana Asmar, witness statement, 26/8/14, para 83. 110 McCubbin MFI-1, 25/8/14, p 936.
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signed her declaration on 29 January 2013.111 On 31 January 2013, Ms
Asmar was issued with her right of entry permit.112
100. Ms Asmar gave evidence that she did not tell a meeting of organisers
in early 2013 that Ms Kitching would be sitting their right of entry
tests.113 Ms Asmar’s evidence on 28 August 2014 was that no meeting
or industrial day took place in April 2013 or on an earlier date.114
However, Ms Asmar’s evidence changed on 19 September 2014 during
the following exchange:115
Q: You attended the industrial day in February-March 2013?
A: I would have, yes.
101. Ms Asmar squarely denied instructing Ms Lee to sit the right of entry
tests for Mr Rowe and Mr Eden.116 Ms Asmar said that when she hired
Ms Lee she said she was politically neutral. However, Ms Asmar later
discovered that Ms Lee had assisted on the opposing campaign for Mr
Marco Bolano. Ms Asmar said that Ms Lee ‘appeared to want to
destabilise the current Branch leadership with a view to reinstating the
previous team’.117
111 McCubbin MFI-1, 25/8/14, 2/845. 112 McCubbin MFI-1, 25/8/14, p 1372. 113
Diana Asmar, 26/8/14, T:557.18-21. 114 Diana Asmar, 26/8/14, T:557.23-29. 115
Diana Asmar, 19/9/14, T:1094.10-12. 116 Diana Asmar, 26/8/14, T:562.39-41. 117
Diana Asmar, witness statement, 26/8/14, paras 86-87.
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Did Ms Lee sit online tests Ms Asmar and others? - assessment of the
various witnesses
102. The contemporaneous written record from the ACTU shows that six
right of entry tests were undertaken on 15 February 2013. The time
taken to complete the tests gets progressively quicker throughout the
day. Three of the organisers whose tests were taken that day, Mr
McCubbin, Ms Govan and Mr Atkinson gave evidence that they did
not complete their tests. Mr Kastis and Mr Trajcevski-Uzunov did not
complete their tests. Who completed them? Ms Lee did not.
103. The evidence of Ms Lee, Ms Govan, Mr McCubbin, Ms Porter,