€¦ · Web viewROYAL COMMISSION INTO TRADE UNION. GOVERNANCE AND CORRUPTION. Level 1, 12 Moore Street, Canberra City, ACT. On Thursday, 24 July 2015 at 10.10am (Day 10

ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION

Level 1, 12 Moore Street, Canberra City, ACT

On Thursday, 24 July 2015 at 10.10am (Day 10)

Before the Commissioner: The Hon. John Dyson Heydon AC QC

Counsel Assisting: Ms Jeremy Stoljar SC and Mr Richard Scruby

Instructed by: Minter Ellison, Solicitors

.24/07/2015 CFMEU ACT 980 Transcript produced by DTI

1 THE COMMISSIONER: I am sorry for the delayed start. 2 There was an urgent practical problem that arose. 3 Mr Stoljar? 4 5 MR STOLJAR: Commissioner, we will be proceeding in due 6 course today with the witnesses for the CEPU. Before we 7 come to those witnesses, however, a new issue has arisen, 8 or a new witness has come to light that I propose to call 9 first. A gentleman has been summonsed, Mr Domitrovic, and 10 I call him as the first witness. 11 12 <JOHN DOMITROVIC, sworn: [10.11am] 13 14 <EXAMINATION BY MR STOLJAR: 15 16 MR STOLJAR: Q. Your name is John Domitrovic? 17 A. Yes. 18 19 Q. Is it D-O-M-I-T-R-O-V-I-C? 20 A. Yes. 21 22 Q. You are a resident of New South Wales? 23 A. Yes. 24 25 Q. You are a builder developer? 26 A. Yes. 27 28 Q. You have been summonsed to give evidence this morning 29 in this Commission? 30 A. Yes. 31 32 Q. And you understand that you have to just give truthful 33 answers to the questions I ask you? 34 A. Yes, sir, yes. 35 36 Q. You're going to do that? 37 A. Yes. 38 39 Q. And you understand there are serious penalties if you 40 don't give truthful answers? 41 A. Yes. 42 43 Q. Are you involved in the construction industry? 44 A. Yes. 45 46 Q. How many years have you been in the construction 47 industry, roughly?

.24/07/2015 CFMEU ACT 981 J DOMITROVIC (Mr Stoljar) Transcript produced by DTI

1 A. 35 years. 2 3 Q. You have a building licence, do you? 4 A. Yes. 5 6 Q. What is your trade? Did you have a trade before that? 7 A. Yes. I am a bricklayer by trade. 8 9 Q. Are you now the director of a number of building 10 companies? 11 A. Yes. 12 13 Q. Is one of those ACT Builders Pty Ltd? 14 A. Yes. 15 16 Q. And another JBD Pty Ltd? 17 A. Yes. 18 19 Q. And are you also involved with a company called All 20 Kiwi Constructions Pty Ltd? 21 A. Yes. 22 23 Q. What was your role with that company? 24 A. I was a manager. 25 26 Q. What were you responsible for as manager? 27 A. The running of all the books and money side of the 28 things. 29 30 Q. The finances, is that fair to say? 31 A. Finance, yes, yes. 32 33 Q. So you were responsible for writing cheques and the 34 like? 35 A. Yes. 36 37 Q. And you also maintained the company's accounts? 38 A. Yes. 39 40 Q. What sort of work was All Kiwi Constructions involved 41 with? 42 A. Permanent formwork for concrete poured walls. 43 44 Q. But you did or your various companies did building 45 work more generally than that, may I take it? 46 A. Yes. 47


1 Q. You were involved in various construction projects? 2 A. Yes. 3 4 Q. Both in the ACT and New South Wales? 5 A. Correct. 6 7 Q. In the ACT was it mainly residential or has it been 8 commercial as well? 9 A. Mainly residential. 10 11 Q. I want to ask you about one particular period of time, 12 that is, 2011. Were you doing a job at that time in the 13 ACT? 14 A. Yes. 15 16 Q. Where about was that? 17 A. In Flemington Road in Mitchell. 18 19 Q. Flemington Road, Mitchell, and what sort of job was 20 it? 21 A. All Kiwi contracted the wall system, the concrete wall 22 system to be poured and erected. 23 24 Q. What was the nature of the development? 25 A. We were only contracted for the permanent formwork 26 side of it. 27 28 Q. Right. 29 A. And it was a development of about 80-odd apartments, 30 I believe. 31 32 Q. So someone else was the head contractor? 33 A. Yes, yes. 34 35 Q. And All Kiwi was just doing this particular aspect of 36 the job? 37 A. Yes. 38 39 Q. At that time were you also doing a job in New South 40 Wales? 41 A. Yes. 42 43 Q. What was that job? 44 A. That was our own job. We were builders, building and 45 developers on apartments - we were building 53 apartments. 46 47 Q. When you say your own job, does that mean you or


1 a company with which you were associated bought the land? 2 A. Yes. 3 4 Q. How were you financing it? Had you borrowed? 5 A. Yes. 6 7 Q. How much had you borrowed roughly, can you remember? 8 A. Oh, look, it was over $10 million. 9 10 Q. So you were doing the Queanbeyan job? 11 A. Yes. 12 13 Q. And you were also, through All Kiwi Constructions, 14 doing a job at Flemington Road, Mitchell? 15 A. Yes. 16 17 Q. This was all in about late 2011? 18 A. Correct. 19 20 Q. Did you receive an approach from somebody from the 21 CFMEU? 22 A. Yes. 23 24 Q. Just tell me in your own words what happened? 25 A. Well, Fihi, as we call him, or Mr Kivalu -- 26 27 Q. "Fihi", if that is more comfortable for you. 28 A. "Fihi" I know him as. He approached me and he said if 29 I'm going to do work in the ACT, I'm going to have to pay 30 some money up to him. 31 32 Q. Were you on the phone with him or was this at 33 a meeting? 34 A. He met with the site supervisor on-site, or off-site 35 and on-site, and then he got in touch with me because I was 36 the person handling all the finances. First, he telephoned 37 me and then we met in person in Queanbeyan. 38 39 Q. But the telephone call, is that when he said to you 40 about the words that you said, "If you want to work in the 41 ACT"? 42 A. Yes. 43 44 Q. So what did you say to him when he said that to you? 45 A. I just said, "Look, you're going to have to come and 46 talk to me," you know, "We're going to have to meet in 47 person and talk about this."


1 2 Q. And so what happened then? Did he come out to 3 Queanbeyan to see you? 4 A. Yes, he came out and he said, "Look, we've agreed" or, 5 "I've agreed with your site supervisor, you're going to pay 6 me $60,000 cash", and I said - I said - I said, "Fihi, 7 that's not going to happen", but I said, "I'll need a few 8 days to think about this and we'll have to meet again and 9 sort something out", and then we met again. 10 11 Q. Just before you come to that second meeting, that 12 first meeting, where was that? 13 A. It was on - actually, he came to Queanbeyan on the 14 site where I was building those apartments with the other 15 company. 16 17 Q. What was the address of that site? 18 A. Ross Road, Queanbeyan. 19 20 Q. Was anyone else present at the meeting that you had 21 with him? 22 A. There was me, Fihi, and he had another fellow with 23 him. I can't recall his name. 24 25 Q. You don't know the name of the other fellow? 26 A. No, I can't. 27 28 Q. Did you get any description of him, that is, did he 29 introduce him in some way? 30 A. I can't be 100 per cent sure of this. He might have 31 introduced him as his brother, but I'm not - that's just -- 32 33 Q. Did the gentleman resemble Fihi in any way? 34 A. Yeah, he was with an Islander appearance, like Fihi. 35 36 Q. And then was he present when you had this discussion? 37 A. He wasn't right next to us. He was present but he was 38 some distance away, 5 metres-odd. 39 40 Q. Then you said that you'd have to think about it and 41 there'd be another meeting. What happened then? 42 A. Well, we did meet again. I said to Fihi, "$60,000, 43 it's not going to happen", I said, "I've made a business 44 decision and I'll give you $30,000", and it's not going to 45 be cash, it will have to be a cheque, and you can take it 46 or leave it. 47


1 Q. What did he say? 2 A. He said, "I'll take it." 3 4 Q. Had there been discussion about cash before that time? 5 A. Yes, he wanted cash. 6 7 Q. When had he said that to you? 8 A. Well, he said that right from the first contact. 9 10 Q. In the telephone call? 11 A. Yes. 12 13 Q. What did he say about cash in the telephone call? 14 A. Well, he said, "You're going" - you know, "You're 15 going to have to pay some money and cash money." 16 17 Q. So you said to him, "Take it or leave it" and he said 18 words to the effect he'll take it. What happened then? 19 A. I said to him, "And it won't be coming all in 20 one - one time", I said, "I'll need a month or two duration 21 where I could pay it in payments", like, not in one hit. 22 23 Q. And what did he say? 24 A. He said, "Okay." 25 26 Q. By the way, had you taken any notes of this meeting? 27 A. No. 28 29 Q. Did he? 30 A. No. 31 32 Q. And what about the first meeting, were there any 33 notes? 34 A. No. 35 36 Q. At that second meeting, he said, "Okay", and then what 37 happened? 38 A. Yeah, and I believe soon after that I made my first 39 payment. 40 41 Q. I am going to show you a bundle of photocopies. I am 42 showing you a bundle of photocopied cheques and other 43 documents which has been numbered in the bottom right-hand 44 corner 1 through to 8. 45 A. (Shown) 46 47 MR STOLJAR: Commissioner, I would ask that this be


1 received into evidence. 2 3 THE COMMISSIONER: Yes. This will be Domitrovic MFI-1. 4 5 DOMITROVIC MFI-1 BUNDLE OF PHOTOCOPIED CHEQUES AND OTHER 6 DOCUMENTS NUMBERED 1 THROUGH TO 8 7 8 MR STOLJAR: Q. Mr Domitrovic, looking at the first 9 cheque on that page, it is dated 7 October 2011, is that 10 your handwriting? 11 A. Yes. 12 13 Q. It is a little hard to read the account on which the 14 cheque has been drawn, but does that say All Kiwi 15 Constructions? 16 A. Yes. 17 18 Q. Let's take it in steps. Was Fihi there when you wrote 19 out the cheque? 20 A. Yes, I wrote this cheque out there and then in front 21 of him. 22 23 Q. So he'd come back, had he, to pick up this cheque? 24 A. Oh, yes, yes. 25 26 Q. Did he have anyone with him on this occasion? 27 A. Yes. He had - same fellow. 28 29 Q. Same fellow. Were you in the site office or something 30 when you wrote the cheque, or can you not remember? 31 A. No, it was actually on the - in front of the building 32 on the roadside, next to the car. 33 34 Q. It is a little hard to read the writing, but does that 35 say, "Halaevalu Maureen Kivalu"? 36 A. Yes. 37 38 Q. And who is that, do you know? 39 A. I asked him who this cheque goes to, who does the 40 cheque get written out to. He said - he gave me this name 41 and I said, "Who's this?" and he said, "That's my wife." 42 43 Q. And that is your handwriting, is it? 44 A. Yes, that's my handwriting. 45 46 Q. And the same with "five thousand five dollars only"? 47 A. Yes.


1 2 Q. And the numbers next to "$5,005-00", is that your 3 handwriting? 4 A. Yes. 5 6 Q. And is that your signature? 7 A. Yes. 8 9 Q. Why was it $5005, can you remember? 10 A. Honestly, I can't - I can't remember, to be honest. 11 12 Q. All right. Then what happened? You wrote the cheque 13 out and what did you do with it? 14 A. I wrote the cheque out and handed it to him. 15 16 Q. Just as it was or in an envelope? 17 A. No, just as it was. 18 19 Q. And did he say anything? 20 A. No. He said, "See you next time", some words to that 21 effect. 22 23 Q. And you were monitoring the accounts for All Kiwi 24 Constructions, were you? 25 A. Yes. 26 27 Q. Did you notice that the cheque had been presented and 28 the money came out? 29 A. Yes. 30 31 Q. The next document in this bundle is at page 3 in the 32 bottom right-hand corner and that is a cheque drawn on 33 4 November 2011. Is that your handwriting on the cheque 34 again? 35 A. Yes. 36 37 Q. And your signature? 38 A. Yes. 39 40 Q. Just tell me the circumstances in which you came to 41 draw or write out this cheque? 42 A. This is another part-payment of the original agreement 43 which I struck with him for $30,000. 44 45 Q. And did he come out to the site at Queanbeyan again? 46 A. Yes, again, yes. 47


1 Q. And did he have the same fellow with him? 2 A. Yes, I believe so. 3 4 Q. And did you have a conversation with him or can you 5 not remember? 6 A. With Fihi? 7 8 Q. Yes. 9 A. Yes, we spoke some, yes. 10 11 Q. And then, what, you wrote out the cheque, did you? 12 A. And I wrote out the cheque and -- 13 14 Q. Handed it to him. Again, you noticed that the cheque 15 had been presented, did you? 16 A. Yes. 17 18 Q. Could you come to page 5 in the bundle. This is 19 a cheque for $10,000 this time, 9 December 2011. Is that 20 your handwriting? 21 A. Yes. 22 23 Q. And your signature? 24 A. Yes. 25 26 Q. Was the process pursuant to which you handed over this 27 cheque similar to the first two? 28 A. Yes. 29 30 Q. And, again, you noted that the sum of $10,000 had been 31 deducted from All Kiwi Constructions' account, consequent 32 upon the presentation of the cheque? 33 A. Yes. 34 35 Q. Do you know why the figure went up to $10,000 for that 36 instalment? 37 A. There was - there was talk that I need to pay him up 38 by Christmas, the balances, not after, not to string it out 39 any more. 40 41 Q. Who said that to you? 42 A. Fihi. 43 44 Q. At one of these meetings? 45 A. Yeah, at - yeah. 46 47 Q. Did he offer any reason why it had to be done by


1 Christmas, do you remember? 2 A. No. No. 3 4 Q. And then could you come to page 7. This was actually 5 written on Christmas Eve 2011. Is that your handwriting on 6 the cheque? 7 A. Yes. 8 9 Q. And your signature? 10 A. Yes. 11 12 Q. And were the circumstances in which you handed over 13 this cheque similar to those that you have described in 14 relation to the first three cheques? 15 A. Yes. 16 17 Q. So that concluded the instalments of $30,000? 18 A. That's correct. 19 20 Q. And why did you pay this money to Fihi? 21 A. It's purely business decision for economic reasons. 22 23 Q. What do you mean by that? Can you just explain what 24 you mean? 25 A. Well, at my biggest - I was involved in this, one of 26 the biggest jobs I ever did which was these apartments in 27 Queanbeyan and I thought if I didn't comply with his 28 wishes, I could have got on the wrong side of him and the 29 Union and they could have had - they could have put a lot 30 of pressure on me on the job in Queanbeyan. 31 32 Q. What sort of pressure? 33 A. Well, you know, they could have come, stopped jobs, 34 stopped the progress and, you know, could have stopped 35 pours. You know, you hear these things and this was one of 36 the real reasons I was - I didn't want to get on the wrong 37 side of the Union. 38 39 Q. Did you feel like you had a choice? 40 A. Yes. Yes, obviously I had a choice, I could have said 41 no, but, as I said, it was a business decision. I didn't 42 want to - I didn't want - I thought I'd rather pay than get 43 on the wrong side. 44 45 Q. The Queanbeyan job was actually in progress at that 46 time, was it? 47 A. Yes.


1 2 Q. Were there concrete pours and the like in progress at 3 that time? 4 A. Yes, it was - yeah. 5 6 Q. Was that one of the things concerning you? You 7 mentioned pours before. 8 A. Yes. 9 10 Q. Did Fihi say what he was going to do with the money? 11 A. No. From memory, no, I don't think I've asked him. 12 13 Q. Do you have an EBA, by the way, or does your company 14 have an EBA? 15 A. No. 16 17 Q. Are any of your employees members of the Union, to 18 your knowledge? 19 A. No. 20 21 Q. Were you surprised that Fihi made this request of you? 22 A. Well, yes and no. 23 24 Q. Well, what do you mean by that? 25 A. Look, you hear these things in the industry and you 26 don't think it's going to happen, so somewhat surprised 27 that Fihi agreed to take a cheque to his wife; that 28 surprised me the most. 29 30 Q. You mean because it could be traced in due course? 31 A. Yes. 32 33 Q. You thought he'd insist on cash? 34 A. Yes. Well, he did but I - that's where I drew the 35 line. 36 37 Q. Has this ever happened to you before, that someone 38 from the CFMEU has asked for money? 39 A. Sorry, can you repeat? 40 41 Q. Has anyone else from the CFMEU ever asked you for 42 money? 43 A. No. 44 45 Q. Have you had many dealings with the CFMEU? 46 A. No. 47


1 Q. I think you said a lot of your work in the early 2 years, at least, was residential work? 3 A. Yes. 4 5 Q. And are you still doing residential mainly or 6 commercial? 7 A. Mainly residential. 8 9 MR STOLJAR: I have nothing further, thank you, 10 Commissioner. 11 12 THE COMMISSIONER: Yes. 13 14 MR STOLJAR: I just note that Mr Madden is here for 15 Mr Kivalu. He didn't formally announce his appearance at 16 the outset and Mr Agius is here for the CFMEU. Of course, 17 neither of those representatives have heard any of this 18 evidence before just now, so they will no doubt need to 19 reflect upon it. 20 21 THE COMMISSIONER: Yes. I think the appropriate course, 22 subject to contrary argument, this is an entirely tentative 23 proposal, is that no cross-examination take place today. 24 If any cross-examination is desired at a later time, 25 perhaps the party or parties that wish to do that can 26 notify the Commission and some arrangement will be made for 27 it to take place and the attitude of Mr Kivalu can be 28 ascertained also by correspondence. 29 30 MR STOLJAR: Yes. 31 32 THE COMMISSIONER: Does anyone oppose that type of course? 33 34 MR AGIUS: No, Commissioner. 35 36 THE COMMISSIONER: Mr Domitrovic, you have come here by 37 summons. I think it is probably more practical not to 38 excuse you from the summons just in case other parties 39 represented wish to ask you any questions about your 40 evidence, I'm not saying they will, I am not promising they 41 won't. Thank you for attending today. You can leave the 42 witness box now and leave the hearing room and the 43 building, but you will be informed whether you have to 44 return or not. 45 46 THE WITNESS: Thank you. 47


1 <THE WITNESS WITHDREW 2 3 MR STOLJAR: Commissioner, just one point before we leave 4 this topic. I tender a bundle of CBA account statements in 5 the name of Haleavalu Maureen Kivalu and ask that that 6 bundle be received into evidence. 7 8 THE COMMISSIONER: Yes. Do you want to just indicate what 9 the key entries are? 10 11 MR STOLJAR: Yes. The bundle relates to a particular 12 account in the name of, it would appear, Mrs Kivalu, and if 13 one goes to page number 2 in the bottom right-hand corner, 14 one can see on 11 October 2011 a cheque in the amount of 15 $5,005.00 was deposited into this account. That would 16 appear to correspond to All Kiwi Constructions cheque 17 number 53 which is on page 1 of Domitrovic MFI-1. 18 19 If one then comes through to page 3 of the bundle, on 20 4 November there was a cheque deposit in the sum of $5,000. 21 That would appear to relate to the cheque in that amount of 22 4 November 2011 being cheque number 66, drawn on the 23 account of All Kiwi Constructions, which is at page 3 of 24 Domitrovic MFI-1. 25 26 If one then comes to page 4 of the bundle, on 27 9 December 2011, a cheque was deposited in the sum of 28 $10,000, which would appear to correlate to All Kiwi 29 Constructions cheque number 78 which is at page 5 of 30 Domitrovic MFI-1. 31 32 And finally, coming to page 5 of the bundle, on 33 28 December there is a cheque deposit in the sum of $10,000 34 which would appear to correlate to All Kiwi Constructions, 35 cheque number 85, drawn on 24 December 2011, which is at 36 page 7 of Domitrovic MFI-1. 37 38 THE COMMISSIONER: Yes, thank you. That bundle of bank 39 statements will be Domitrovic MFI-2. Some attempt will 40 have to be made to notify Mrs Kivalu of this morning's 41 evidence, I think, and her rights in terms of questioning 42 are reserved. 43 44 MR STOLJAR: Yes. 45 46 DOMITROVIC MFI-2 BUNDLE OF CBA ACCOUNT STATEMENTS IN THE 47 NAME OF HALEAVALU MAUREEN KIVALU


1 MR STOLJAR: When I say that I ask that both Domitrovic 2 MFI-1 and MFI-2 be received into evidence, that would, 3 no doubt, in the ordinary course be subject to any 4 objection that might wish to be taken by either Mrs Kivalu 5 or Mr Kivalu for that matter. 6 7 THE COMMISSIONER: That is correct. 8 9 MR STOLJAR: Nothing further on that topic, Commissioner. 10 11 THE COMMISSIONER: Very well. Back to CEPU witnesses? 12 13 MR STOLJAR: Excuse me just one moment, Commissioner. 14 15 THE COMMISSIONER: Yes, Mr Agius? 16 17 MR AGIUS: Might we be excused again? We will be watching 18 the proceedings, but we will only be across the road in the 19 room we have there. 20 21 THE COMMISSIONER: Yes. I am sure, whether morning tea 22 falls at the right time or not, if we stop and you are not 23 here, we will adjourn so that you can come. You only want 24 to deal with one witness, I think, today, after the CEPU. 25 26 MR AGIUS: And I understand our role in relation to that 27 witness will not occupy very much time. 28 29 THE COMMISSIONER: Yes, I gather that at least in chief 30 the evidence will be short. Yes, Mr Agius, you have leave, 31 and other members of your team, to do what you have 32 indicated. 33 34 MR MADDEN: Commissioner, might I also be excused? 35 36 THE COMMISSIONER: Yes, certainly. Thank you for 37 attending today. 38 39 MR STOLJAR: Commissioner, the next witness is Mr Poskus. 40 Before I come to that, can I tender a document on behalf of 41 Mr Broadley. I have just been handed a bundle 42 of documents. I will hand them up now, Commissioner. They 43 are a bundle of documents which indicate that Mr Broadley 44 has completed various entry permit training courses and the 45 like for the purposes of holding an entry permit. 46 47 THE COMMISSIONER: Yes.


1 2 MR STOLJAR: And I understand that Mr Broadley has, 3 in fact, completed a five-day safety course, health and 4 safety course. In answer to something that Mr Morison 5 I think raised with him, he gave an answer to the effect 6 that he hadn't done a course, but in fact I am told this 7 morning that Mr Broadley has completed that course. 8 9 THE COMMISSIONER: I just can't remember the last MFI of 10 his. I would be grateful if anyone else does. His last 11 one was MFI-1, so this will be Broadley MFI-2. 12 13 MR STOLJAR: May it please the Commission. 14 15 BROADLEY MFI-2 BUNDLE OF DOCUMENTS INDICATING THAT 16 MR BROADLEY HAS COMPLETED VARIOUS ENTRY PERMIT TRAINING 17 COURSES FOR THE PURPOSE OF HOLDING AN ENTRY PERMIT 18 19 <LUKE RAYMOND POSKUS, sworn: [10.38am] 20 21 <EXAMINATION BY MR STOLJAR: 22 23 MR STOLJAR: Q. Your name is Luke Raymond Poskus? 24 A. That's correct. 25 26 Q. You are the New South Wales Safety Officer of the 27 CEPU? 28 A. Yes, I am. 29 30 Q. Are you a resident of New South Wales? 31 A. Yes. 32 33 Q. You have prepared a witness statement in these 34 proceedings? 35 A. Yes. 36 37 Q. Dated 17 July 2015? 38 A. That's correct. 39 40 Q. Is the content of your statement true and correct? 41 A. It is. 42 43 MR STOLJAR: Commissioner, I would ask that Mr Poskus' 44 statement of 17 July 2015 be received into evidence. 45 46 THE COMMISSIONER: Yes. Is there any part of it you don't 47 read?

.24/07/2015 CFMEU ACT 995 L R POSKUS (Mr Stoljar) Transcript produced by DTI

1 2 MR STOLJAR: Yes, there was an issue raised overnight in 3 relation to paragraph 11. I don't read the second-last 4 sentence beginning "I would describe". 5 6 THE COMMISSIONER: Mr Poskus' statement will be received 7 into evidence. It is not to include the second-last 8 sentence of paragraph 11. 9 10 STATEMENT OF LUKE RAYMOND POSKUS DATED 17/07/2015 11 12 MR STOLJAR: Q. Mr Poskus, just before I take you 13 through your statement, I have been handed this morning, 14 first of all, a certificate from the ACTU, together with 15 two other documents. Are these certificates that you have 16 received concerning training that you have done? 17 A. That's correct. 18 19 MR STOLJAR: Commissioner, I would ask that a bundle of 20 two certificates from the ACTU and one from WorkCover be 21 received into evidence. 22 23 THE COMMISSIONER: That bundle of training certificates 24 will be known as Poskus MFI-1. 25 26 POSKUS MFI-1 BUNDLE OF TRAINING CERTIFICATES 27 28 MR STOLJAR: Q. You are also, are you, on the Demolition 29 and Asbestos Consultative Committee? 30 A. That's correct. 31 32 Q. I have been handed a document which sets out the terms 33 of reference of that committee. How long have you been on 34 it? 35 A. I was nominated to go on early last year, maybe, or 36 just before halfway through last year. 37 38 Q. So since about mid-2014; is that right? 39 A. I believe so, yes. 40 41 Q. Had the committee been set up before that time? 42 A. Yes, it had. 43 44 Q. And the document that Mr Docking has handed me is, as 45 I say, the terms of reference dated April 2014 for that 46 committee. 47


1 MR STOLJAR: Commissioner, I would ask that that be 2 received into evidence. 3 4 THE COMMISSIONER: Yes. That document, the terms of 5 reference for the Demolition and Asbestos Consultative 6 Committee will be Poskus MFI-2. 7 8 POSKUS MFI-2 TERMS OF REFERENCE FOR THE DEMOLITION AND 9 ASBESTOS CONSULTATIVE COMMITTEE 10 11 MR STOLJAR: Q. Mr Poskus, you commenced employment with 12 the CEPU on 22 April 2013. That is in Sydney, is it? 13 A. That's correct. 14 15 Q. Just looking at Poskus MFI-1, you hadn't at that stage 16 participated in the ACTU Section 14(c) Union Governance 17 Course? 18 A. Sorry, can you just clarify what you are asking me? 19 20 Q. Yes. I am looking at the bundle of certificates I was 21 handed this morning. This first one relates to Union 22 governance. You did that in 2014? 23 A. That's correct. 24 25 Q. So you hadn't done that in obviously -- 26 A. Not when I started, no. 27 28 Q. Before April 2013, what had you been doing? 29 A. Before I started with the Plumbers Union I was back on 30 the tools for a while and before that I was an organiser 31 with the CFMEU. 32 33 Q. When you say "back on the tools", you mean you were 34 working in the trade? 35 A. That's correct. 36 37 Q. Doing what? 38 A. I was gyprocking at the time. 39 40 Q. Do you have a plumber's -- 41 A. I'm not a plumber by trade, no, I am a sheet 42 metalworker. 43 44 Q. Have you got any experience or training in plumbing 45 yourself? 46 A. Not at all, no. 47


1 Q. So how long were you a sheet metalworker? 2 A. I started my apprenticeship, I think, roughly, it was 3 in '93, maybe '94. I did sheet metal up until probably the 4 year 2000. I moved to Victoria for about six months and 5 when I came back, I started doing shop-fitting and gyprock. 6 7 Q. And then you were with the CFMEU for a period of time? 8 A. That's correct. 9 10 Q. And then you went back, as you say, to the tools? 11 A. Yes. 12 13 Q. And then you joined the CEPU in 2013? 14 A. That's correct. 15 16 Q. And you did a WorkCover entry permit holder training 17 course in 2013? 18 A. Yes. 19 20 Q. And you likewise did a right-of-entry course in 2013? 21 A. Yes. 22 23 Q. So had you done any safety training as at April 2013? 24 A. Just the training, the training that's required under 25 section 133 of the WHS Act to hold and obtain the safety 26 entry permit. 27 28 Q. That is in relation to your entry permit? 29 A. Yes, correct. 30 31 Q. How much training was that? 32 A. Are you talking about the period of the course for 33 that safety permit? It goes over - it's roughly 34 eight hours, it's a full day. 35 36 Q. So you had done a day-long course? 37 A. Yes. 38 39 Q. Any other safety training? 40 A. When I was at the CFMEU we did HSR training there, WHS 41 gap course training, but since starting at the Plumbers, no 42 additional training. 43 44 THE COMMISSIONER: Q. Mr Poskus, this is in no way 45 intended to be critical. It is very important your 46 evidence gets taken down correctly. I suspect you may be 47 going just a trifle fast for the person recording your


1 evidence? 2 A. Sorry, Commissioner, I will slow down. 3 4 THE COMMISSIONER: No, it is not a matter of criticism at 5 all. 6 7 MR STOLJAR: Q. You received your permit in July; is 8 that right? 9 A. Which one are you referring to, Mr Stoljar? 10 11 Q. The WHS entry permit, or was that issued by the ACT, 12 was it? 13 A. The ACT one I received, the issue date says here 14 1/7/2013. 15 16 Q. And had you already received one from New South Wales? 17 A. I have, and I have that front of me, and that says the 18 date of issue was 23 April 2013. 19 20 Q. When you say you have it in front of you -- 21 A. Sorry, I have - this is exactly how I wear my right of 22 entry, so they are in a lanyard around my neck. 23 24 Q. I want to ask you some questions about the matters on 25 paragraphs 10 and following of your statement. 26 A. Yes. 27 28 Q. In paragraph 11, you have set out a call that you made 29 to Mr Hooper, you say, on 2 July 2013, but why don't we 30 just go back a little bit in time. You'd started work on 31 22 April. That was in Sydney, was it? 32 A. In Sydney, yes. 33 34 Q. And you were based in New South Wales at the time? 35 A. That's correct. 36 37 Q. Had you travelled to Canberra at any stage between 38 22 April and the visit that you apparently made on or about 39 2 July or earlier? 40 A. So you are asking if I had been to Canberra prior to 41 what I state in my statement? No, I don't believe I had. 42 43 Q. When did you come to Canberra? 44 A. From my - to the best of the records that I've got, it 45 would have been the first week in July 2013. 46 47 Q. So, what, some time around about 1 July?


1 A. Yes. 2 3 Q. You're not quite sure, though? 4 A. Well, the only reason I say that, the first day 5 I arrived in Canberra was when I went to WorkSafe ACT to 6 receive my safety permit and that is the date that it says 7 it was issued. 8 9 Q. So you got there on the 1st and then on the 2nd you 10 had the conversation with Mr Hooper and on the 3rd you went 11 to the Easty Street project, is that right? 12 A. That's correct. 13 14 Q. Where were you working out of, what offices? 15 A. When we were in Canberra and - are you referring to 16 when I received a phone call or made the phone call? What 17 are you referring to, where I was working out of? We were 18 staying in a hotel at that time; there was no Canberra 19 office. 20 21 Q. When you made the phone call on 2 July -- 22 A. I would have been in my hotel room, Mr Stoljar. 23 24 Q. Was Mr Kivalu there? 25 A. No. 26 27 Q. Had you spoken to him at all in that trip? 28 A. No. 29 30 Q. I'll start by taking you to paragraph 12. You say 31 there: 32 33 I attended at this work site ... 34 35 That is the Easty Street Project: 36 37 ... because of an anonymous complaint the 38 CEPU had received. 39 40 Do you see that? 41 A. Yes. 42 43 Q. When had the CEPU received that complaint? 44 A. I can't say when that was received. Any anonymous 45 complaints come through the front desk and they would have 46 been noted down at the time, so I don't know when they were 47 received.


1 2 Q. It could have been weeks before? 3 A. There was no date. I'm not the person to ask what 4 time they were received. I never received the call, so I'm 5 not sure. 6 7 Q. Who would I ask? 8 A. You would have to ask the person who was on the front 9 desk at that time. 10 11 Q. How did you come to know about it? 12 A. Because they were given to me -- 13 14 Q. Given to you? 15 A. Yes, they were given to me on post-it notes when we 16 went to Canberra, the details of the complaints. 17 18 Q. Where is that post-it note? 19 A. Well, I don't have it any more. 20 21 Q. When was that given to you? 22 A. That would have been prior to us going to Canberra, or 23 the day we were going to Canberra. 24 25 Q. Some time in June, late June maybe? 26 A. No. Well, I got there on 1 July, so it would have 27 been given to me prior to me leaving Sydney. 28 29 Q. Who gave it to you? 30 A. Who gave it to me? It was given to me by the person 31 at the front desk. 32 33 Q. What is that person's name? 34 A. At the time I believe it was Mr Ian Wright. 35 36 Q. Sorry? 37 A. Mr Ian Wright. 38 39 Q. Wright? 40 A. Wright, W-R-I-G-H-T. That would be exact for the 41 spelling, I believe that's it. 42 43 Q. You got a post-it note, did you? What did it say on 44 this post-it note? 45 A. The post-it notes just had what the complaints were 46 and where the jobs were. 47


1 Q. What, all on the one post-it note? 2 A. No, there was not - there were numerous post-it notes. 3 4 Q. How did you carry these post-it notes around? 5 A. I put them all together and took them with me. 6 7 Q. What did the post-it notes say about Easty Street? 8 A. That the complaints were that there was moving plant, 9 a pedestrian issue, there was an issue with access and 10 egress and, from memory, there was an issue with fall from 11 heights. 12 13 Q. This was all written out on the one post-it note? 14 A. Yes. 15 16 Q. And was there any clue as to when the complaint had 17 been received? 18 A. There was no date on the form that I got, no. 19 20 Q. So it could have been months before, for all you knew? 21 A. I can't say. 22 23 Q. Well, that's right, isn't it, it could have been 24 months before, for all you knew? 25 A. It's possible, but it also could have been the day 26 before, but I can't say. 27 28 Q. Did it say who'd made the complaint? 29 A. They were anonymous complaints. A lot of the times - 30 some people do leave their names, but a lot of the times 31 people are scared to leave their names. Even though the 32 WHS Act -- 33 34 Q. How do you know this - how do you know -- 35 A. -- says to keep the anonymity of the person making the 36 complaint and they are protected, some people still just 37 refuse to leave their name. 38 39 THE COMMISSIONER: Just let Mr Poskus finish his answer 40 which I think was genuinely answering in that instance. 41 42 MR STOLJAR: Q. How many complaints did you receive? 43 A. At that time, it's possible there was up to four on 44 different projects. 45 46 Q. And then you say in paragraph 12: 47


1 This inspection was scheduled before I had 2 the conversation with Mr Hooper and before 3 I attended at Canberra. 4 5 Do you see that? 6 A. Yes. 7 8 Q. You mean the inspection of the Easty Street Project? 9 A. What I mean is the complaint was received before 10 I visited Canberra. 11 12 Q. And somebody had in fact arranged an inspection, had 13 they? 14 A. Not an inspection. The inspection I carried out on 15 that day was due to a complaint that we'd received prior to 16 me coming to Canberra. 17 18 Q. It says: 19 20 This inspection was scheduled before I had 21 the conversation with Mr Hooper and before 22 I attended at Canberra. 23 24 Do you see that? 25 A. Yes, I see that. 26 27 Q. Does that mean that somebody had received this 28 anonymous complaint and then made an arrangement with 29 Easty Street to go to the project? 30 A. No, Mr Stoljar. What it means is that the complaint 31 came in about that work site before I had ever spoken to 32 Mr Hooper or attended Canberra. 33 34 Q. What did you mean by "it was scheduled"? 35 A. I guess maybe I used the wrong term there, but the 36 inspection that I carried out was planned already before 37 due to an anonymous complaint before we came to Canberra or 38 before I spoke to Mr Hooper; that's what I mean by that. 39 40 Q. Planned in your mind, is that what you mean? 41 A. No, not planned in my mind. It was already noted and 42 taken at the front office before I spoke to Mr Hooper or 43 I came to Canberra. 44 45 Q. You were concerned, were you, about these safety 46 issues? 47 A. Absolutely.


1 2 Q. But they might have been received months before? 3 A. It's possible, having no date on them, but it's also 4 possible they were received the week before. 5 6 Q. So you had planned to make an inspection; is that 7 right? 8 A. I planned to attend that site, yes, based on the 9 information that was provided. 10 11 Q. Is this the position, that CEPU doesn't keep any 12 record of these anonymous complaints, other than by putting 13 them on a post-it note? 14 A. I'd be the wrong person to ask, Mr Stoljar. 15 16 Q. You would know, surely? 17 A. If a complaint is given to me I'm not sure if there's 18 a record of them kept. For instance, my books in Sydney 19 for the WorkCover safety notices, the carbon copy is also 20 a record, but beyond that, I'm not sure what procedures are 21 put in place in the office. 22 23 Q. Aren't you the safety officer? 24 A. Yes, I am. 25 26 Q. Have you ever thought to ask? 27 A. I've never asked. I mean, to me, maybe it should be 28 recorded, but I've just expected that maybe it's been done. 29 I've got my carbon copy, I've got a record of where I've 30 been. 31 32 Q. So you have arrived in Canberra. That is a pretty 33 hopeless way to deal with safety issues, isn't it, keeping 34 things on post-it notes? 35 A. I'm sorry but I'm not responsible for that end. 36 37 Q. But do you agree with me it's a pretty hopeless way to 38 deal with safety issues? 39 A. I wouldn't say it's hopeless. I'd say the system 40 could definitely be improved. 41 42 Q. Anyway, you have arrived in Canberra and the following 43 day you say you had a conversation with Mr Hooper? 44 A. That's correct. 45 46 Q. You hadn't been out to Easty Street by this stage? 47 A. No. No.


1 2 Q. And you say in paragraph 11: 3 4 I deny that the conversation that Mr Hooper 5 says occurred did occur. I did not say to 6 him that I would be on the site in the 7 morning to look for safety concerns. 8 9 A. Absolutely not. 10 11 Q. And then you say, "Absolutely not", so you are sure 12 about that? 13 A. I'm sure about that. 14 15 Q. And you say a conversation took place to the following 16 effect and you have set out some conversation? 17 A. Mmm-hmm. 18 19 Q. It never happened in those terms, did it? 20 A. It happened exactly as the way that I've stated in my 21 statement. 22 23 Q. I am going to put to you a different version of that 24 conversation. This is the position, isn't it, that you 25 said to Mr Hooper that you needed to meet with him as soon 26 as possible to sign the EBA? 27 A. No. 28 29 Q. You say, do you, that you said to him, "Mate, you need 30 to ring Dave. Dave has been trying to ring you. He wants 31 a meeting to talk about the EBA"? 32 A. That's correct. From what I recall, I was asked to 33 give him a ring and that's what I did. 34 35 Q. I am sorry, please finish. 36 A. I was asked to give him a call and that's what I did. 37 38 Q. Who asked you? 39 A. David asked me. 40 41 Q. Did you know that at that stage, or by that time, 42 Mr Hooper had informed Mr Broadley that he didn't wish to 43 proceed with an EBA? 44 A. No. I'm not aware of what would have happened. Why 45 would I know of the events involving Mr Broadley, 46 Mr Hooper, regarding an industrial instrument, when I don't 47 have nothing to do with it?


1 2 Q. Well, it is a small office. Did you talk to -- 3 A. I'm hardly in the office, Mr Stoljar, so I don't 4 listen to what's going on. 5 6 Q. When Mr Broadley told you to ring him, did he tell you 7 about what had happened? 8 A. No. 9 10 Q. Did you know that the members of Advanced Plumbing had 11 sent letters of resignation off? 12 A. No. 13 14 Q. Did you know that Mr Hooper had told Mr Broadley he 15 wasn't interested in signing an EBA? 16 A. No. 17 18 Q. Did you know that Mr Kirkwood had gone to the 19 Easty Street site to see if he could find any members to 20 talk to about it? 21 A. No. 22 23 Q. Did you know that Mr Kirkwood had gone to 24 Antill Street site to talk to members and in fact had 25 talked to member? 26 A. No, Mr Stoljar. Any questions you are going to ask me 27 relating to Damian Kirkwood, I had no knowledge of anything 28 Damian was doing in the ACT. I only came down after he 29 ceased employment. 30 31 Q. I know that. What I am asking you is did Mr Broadley, 32 or, for that matter, anyone else, tell you about this 33 history of events that occurred just in the weeks before 34 your trip to Canberra? 35 A. No. 36 37 Q. I am telling you this. The position was, before you 38 rang him, that Mr Hooper had said he wasn't interested in 39 signing an EBA and the members had indicated that they 40 wanted to resign, and you say you had no idea about that? 41 A. I wasn't aware of that at the time, no. 42 43 Q. According to you, you told Mr Hooper on the phone 44 that, "Dave has been trying to ring you. He wants 45 a meeting to talk about the EBA." What had Mr Broadley 46 said to you? 47 A. From the best of my recollection, I can remember Dave


1 just asked me to give him a call to tell him that he wants 2 to speak to him. I believe it was about the EBA, but 3 that's to the best of my recollection at the time. 4 5 Q. Isn't this the position - you said that you wanted to 6 meet with him ASAP to sign the EBA and he said, "What for?" 7 Did he say that to you? 8 A. I never said that. 9 10 Q. No, I'm saying did Mr Hooper say that to you, "What 11 for?", meaning, "What do we need a meeting for?" 12 A. No. 13 14 Q. And you said, "To talk about signing the EBA"? 15 A. That's incorrect. 16 17 Q. And Mr Hooper said, "I have already spoken to 18 David Broadley about the agreement", and then you said, 19 "And", and he said, "I'm not interested"? 20 A. Incorrect. 21 22 Q. And then you said: 23 24 Okay then, I'll be on site in the morning 25 at Woden ... 26 27 Meaning the Easty Street Project. 28 A. That's incorrect as well. 29 30 Q. And he said, "What for?" and you said, "To look for 31 safety concerns"? 32 A. That's incorrect. In fact, I would loved to have 33 a conversation with Mr Hooper at that time that was as 34 pleasant as that, but it wasn't like that. 35 36 Q. The position was you knew that Mr Hooper's company, 37 Advanced Plumbing, was on the Easty Street Project, 38 didn't you? 39 A. At the time - I don't know - I can't recall if I did 40 or I didn't. 41 42 Q. I thought you'd received an anonymous complaint from 43 the CEPU? 44 A. Yes. 45 46 Q. Didn't it identify who the plumbing contractor was? 47 A. The majority of the time they don't identify


1 themselves or who they are working for. It is just a job 2 and what the issues are they believe that are there. 3 4 Q. This is your evidence, isn't it, that you did have 5 concerns about -- 6 A. Of course I had concerns. 7 8 Q. You told Mr Hooper that? 9 A. No, I never told Mr Hooper nothing. 10 11 Q. What, were you going to keep a secret, were you? 12 A. So you are suggesting that I should ring up employers 13 and tell them there has been a safety complaint on their 14 site to give them a heads-up. That defeats the purpose of 15 doing a safety right of entry. 16 17 Q. You had, in this case, rung up the employer? 18 A. I had called him. 19 20 Q. That is to say, Mr Hooper? 21 A. As stated in my statement, yes, I had called him. 22 23 Q. And you had safety concerns about the Easty Street 24 Project? 25 A. Yes, I did, but that was never mentioned to him on the 26 phone. That was never mentioned to him on the phone, 27 Mr Stoljar. 28 29 Q. You wanted to keep that secret from him, did you? 30 A. I don't have to disclose that information to him. 31 32 Q. Can you answer my question? You wanted to keep that 33 secret from him, did you? 34 A. It's none of his business. 35 36 Q. Can you answer my question, please? 37 A. No, I did not want to keep it secret, Mr Stoljar. 38 39 Q. You didn't want to but you didn't want to mention it? 40 A. There's no need to keep that information from someone 41 who is not required to know it. 42 43 Q. The fact of the matter is, on your evidence, you had 44 safety concerns about the Easty Street Project? 45 A. Correct. 46 47 Q. And you were proposing to go there in order to look


1 into that matter, the very next morning? 2 A. That I was going to go and look at those matters? 3 Yes, I was. 4 5 Q. And you had received, you say, some anonymous 6 complaint? 7 A. Mmm-hmm. 8 9 Q. You are in the Plumbing Union, you are going there to 10 look at what the plumbing contractor is doing among other 11 things, surely? 12 A. I'm going to follow up on the complaints that were 13 given. 14 15 Q. You are talking to the boss of the company that is 16 working on that very job? 17 A. Mmm-hmm. 18 19 Q. And surely you'd say to him, "I'm going to 20 the" - exactly what Mr Hooper says, "I'll be on-site in the 21 morning at Woden." "What for?" "To look for safety 22 concerns"? 23 A. That's incorrect. I would never ever contact an 24 employer and give him the heads-up that someone had 25 complained about safety. Now, being an anonymous 26 complaint, it can also come from the sprinkler fitters, it 27 doesn't have to be from the plumbers. Being an anonymous 28 complaint, it doesn't have to be from the plumbing 29 contractor on-site, it could also be from the sprinkler 30 fitters on-site. 31 32 Q. This is the position, isn't it, Mr Poskus, that you 33 wanted Advanced Plumbing to sign an EBA? 34 A. I reject that statement. 35 36 Q. And you mentioned the fact that you were going out to 37 the site to look for safety concerns, in that conversation 38 with Mr Hooper? 39 A. That is incorrect, Mr Stoljar. 40 41 Q. You did that because you wanted to make it very clear 42 to him that you were going to be looking into safety 43 concerns as a means of putting pressure on him to sign the 44 EBA? 45 A. That is incorrect. 46 47 Q. That is the fact, isn't it?


1 A. That's incorrect. 2 3 Q. Of course you told him that on the phone because you 4 were going there the very next morning? 5 A. That's incorrect. 6 7 Q. By the way, I thought you were very concerned about 8 the safety issues on the site? 9 A. Yes, I was. 10 11 Q. Well, for all you know a complaint had been made 12 months before? 13 A. I didn't know how long. I had no knowledge when it 14 had been made. 15 16 Q. Well, did you ask anyone? 17 A. Who would I ask? 18 19 Q. The person who took the complaint, Mr Wright? 20 A. No, I didn't ask. 21 22 Q. You didn't bother asking that? 23 A. No. 24 25 Q. And then you came to Canberra on the 1st. Why didn't 26 you go straight out to the site if you were so concerned? 27 A. I believe - at the time we arrived, we had to 28 obviously drop our baggage off. I know we had to go - 29 I did go to WorkSafe ACT. I did sit down. I did do that. 30 I did wait for my card. 31 32 Q. What about on the morning of the 2nd, why didn't you 33 go out straight away if you were so concerned? 34 A. I can't say. Maybe I was at another project. I am 35 not sure how I systematically approached all those 36 complaints in Canberra, but that's the date that I was on 37 the Easty Street Project. 38 39 Q. I thought your evidence was that you thought lives 40 were at risk? 41 A. Yes, they were, but if I've got numerous complaints, 42 I can't put one complaint with preference over another. 43 44 Q. You rang him to talk about signing an EBA, on your own 45 evidence? 46 A. That's - yeah, I rang him because I was instructed by 47 Dave to get him to give Dave a call.


1 2 Q. You had time to make these phone calls, did you? 3 A. I had time, I believe, looking in my phone calls, when 4 I checked them, that was late in the afternoon, so I 5 believe, yes, I did have time. 6 7 Q. But you hadn't bothered to go out to the site at this 8 point? 9 A. I hadn't been to that site, no. 10 11 Q. Because you wanted to make it clear to Mr Hooper that 12 you were going to start going off to the site to look for 13 safety concerns? 14 A. No, Mr Stoljar, that's incorrect, I'm sorry, that's 15 incorrect. 16 17 Q. So you got around to going on the 3rd and you met up 18 with Mr Hooper there? 19 A. I didn't know it at the time it was Mr Hooper but, 20 yes, I do remember encountering him on that project. 21 22 Q. And you say in paragraph 14 that you provided 23 a written notice? 24 A. That's correct. 25 26 Q. You never did that, did you? 27 A. That's incorrect. 28 29 Q. There was no rectification notice given, was there? 30 A. That's incorrect. 31 32 Q. And the only issue that you are able to identify 33 was - no, I withdraw that. 34 A. Sorry, Mr Stoljar, sorry, Commissioner, could I just 35 clarify something? When you refer to 36 "rectification notice", that's like a slang term. I refer 37 to that as the same thing, it's the Work Health and Safety 38 Notice. 39 40 Q. All right, fine, but whatever you want to call it, you 41 didn't leave any such notice, did you? 42 A. That's incorrect. 43 44 Q. And then you identified a problem with some small 45 holes in the back panel of the power box? 46 A. Actually, yes, I remember that happening, but they 47 weren't small holes. They were holes big enough for


1 someone to stick their finger through. 2 3 Q. Well, big or small, they were fixed by the people on 4 the site during the inspection? 5 A. That's correct. 6 7 Q. By putting silicon in? 8 A. I don't think they fixed it straight away. The 9 process, Mr Stoljar, with energised equipment, as 10 stipulated under Regulation 49, they've got to first 11 isolate or disconnect, so the site manager wasn't able to 12 do that. You need a licensed sparky. They isolate and 13 disconnect, because it's actually - it's a prohibition, you 14 can't work on live power. They would open the board, seal 15 it, re-test it, close it and re-energise. 16 17 Q. Was there really an anonymous complaint? 18 A. Yes, there was. 19 20 Q. And what happened to the post-it note? 21 A. I'm not sure. I can't say, Mr Stoljar. You are 22 asking me what happened with the papers that I had. They 23 were scribbled on post-it notes from 2013. I don't know. 24 25 Q. Don't you think this was very important? I thought 26 you'd think this was a very serious safety concern? 27 A. Safety is important. 28 29 Q. Wasn't it important to keep the only written record 30 you had? 31 A. I had no idea at the time that was the only written 32 record. How was I supposed to know that someone would have 33 given me information that was the only record? I had no 34 idea that that happened. 35 36 Q. Did you ask Mr Wright if there was any other record? 37 A. No, I didn't. 38 39 Q. Have you asked him since? 40 A. He doesn't work for the Plumbers Union any more, so 41 I can't ask him. 42 43 Q. Have you asked anybody? 44 A. No. 45 46 Q. Before you gave evidence today did you say, "Oh, are 47 there any records that we've kept about these anonymous


1 complaints"? 2 A. I don't think I did, no. Like I said, I rely on the 3 carbon copies of the books that I have, Mr Stoljar. 4 5 Q. Have you made up this story about an anonymous 6 complaint? 7 A. No, I have not. 8 9 Q. And was that made up in order to justify the visit 10 that was made after your conversation with Mr Hooper? 11 A. I have not made up, as you call it, a story and 12 I reject what you're saying. 13 14 Q. You saw Mr Hooper the next day? 15 A. The day - he was on-site the day I attended, that's 16 correct. 17 18 Q. And you mention this at paragraph 21. 19 A. Yes. 20 21 Q. You describe him as a "mad man"? 22 A. I described him as the mad man that abused me the 23 night before, that's correct. 24 25 Q. That is a pretty offensive description, isn't it? 26 A. I think it was the most accurate description, 27 Mr Stoljar. 28 29 Q. You say that he is mad, is that your position? 30 A. What I'm suggesting is the conversation that happened 31 on the phone and what led to the torrent of abuse that 32 I received could only be coming from what I classify as 33 a mad man. 34 35 Q. You are going out of your way to be as offensive about 36 Mr Hooper as you can, aren't you? 37 A. I am not being offensive. I was asked to give a true 38 account of my recollection of the phone call and the way 39 I was abused. In the context that I was abused, yes, 40 I regard him as a madman. 41 42 Q. The sequence of events was that you rang him up to 43 talk about the EBA. Then you made your little comment 44 about going out to the site to check on safety concerns, 45 and that's when he got annoyed? 46 A. That's incorrect, Mr Stoljar. 47


1 Q. He got annoyed because you were implying that if he 2 didn't sign up to the EBA, he was going to face trouble? 3 A. That's incorrect. I don't know how many times I can 4 state this. What you are suggesting to me never happened. 5 6 Q. For how long were you in Canberra? 7 A. To the best - maybe a full week, maybe five days, 8 four days, I think from memory; I'm not exactly sure. 9 10 Q. You say in paragraph 22 that you also went off to the 11 Antill Street Project? 12 A. That's correct. 13 14 Q. And this was another Advanced Plumbing job? 15 A. It turns out that Advanced Plumbing were on that job, 16 that's correct. 17 18 Q. Did you have any safety concerns before you went to 19 this job? 20 A. The Antill Street Project, no. 21 22 Q. No? 23 A. No. 24 25 Q. You turned up there and you had a conversation with 26 Mr Merhi - M-E-R-H-I? 27 A. Is it Maz the person you -- 28 29 Q. Yes. 30 A. That's correct, yes, I spoke to Maz. 31 32 Q. And you had a conversation in these terms, didn't you? 33 You said: 34 35 I'm from Sydney. Do you mind if I look 36 around the job? 37 38 A. No. 39 40 Q. He said, "Sure"? 41 A. No. 42 43 Q. And you said, "I've heard that the plumbers are 44 unhappy with their boss"? 45 A. No, I never said that. 46 47 Q. And he said, "No, as far as I understand, they're very


1 happy and I'm happy with them as well"? 2 A. No, he never said that. 3 4 Q. That's exactly what happened, isn't it? 5 A. No, it's not exactly what happened. 6 7 Q. Because you were trying to denigrate Advanced Plumbing 8 to the principal contractor on the job, weren't you? 9 A. I'm sorry, that is incorrect. 10 11 Q. And that was part of a plan of putting pressure on 12 Advanced Plumbing to sign the EBA? 13 A. That's incorrect. It happened exactly the way that 14 I stated it happened. 15 16 Q. What, how you have stated it in 22? 17 A. Yes. 18 19 Q. You say: 20 21 I may have had a conversation with Maz 22 about how the plumbers were going. 23 24 A. That's correct, but that's a line I use any time 25 I visit a site. Why would I ask how the concreters are 26 going? I look after plumbers. I would never ask how 27 another trade is going. 28 29 Q. But that's not what you said. What you said was, 30 "I've heard the plumbers are unhappy with their boss"? 31 A. No, that's incorrect. 32 33 Q. You say in 22: 34 35 I did not leave any paperwork as I was not 36 there for any safety inspection ... 37 38 A. That's correct. 39 40 Q. 41 ... or to speak to workers. 42 43 A. That's right. 44 45 Q. Is this the case, that sometimes you turn up to sites 46 for safety inspections, sometimes you turn up just to speak 47 to workers, do you?


1 A. Sorry, could you ask me that question again? 2 3 Q. I am just trying to understand the last sentence of 4 paragraph 22, if you want to have a look at it. You say: 5 6 I didn't leave any paperwork as I was not 7 there for any safety inspection ... 8 9 A. Yes, that's right. 10 11 Q. 12 ... or to speak to workers. 13 14 A. That's right. 15 16 Q. In what circumstances do you turn up to sites just to 17 speak to workers? 18 A. Well, never. I mean, what I was referring to there, 19 Mr Stoljar, sometimes the company or some of the other 20 officials they send the right of entry through to hold 21 discussions during lunch times and that's the only ever 22 time I know you need to give notice to speak to workers on 23 site. 24 25 Q. Well, why were you going to the Antill Street Project? 26 A. Look, to the best of my memory, after Mr Kirkwood had 27 ceased employment there was a period of time where there 28 was no official in Canberra, so part of the trip also to 29 Canberra at the time was to make sure the job records that 30 we had, even though the time had lapsed, were either still 31 going, had been completed, or if site managers had changed 32 or contacts had changed, so it was updating the site 33 register. 34 35 Q. You mean update the site register sheets, is that what 36 you mean? 37 A. That's correct. 38 39 Q. You are the safety officer? 40 A. Yes, I am the safety officer. 41 42 Q. And you were doing this more generalised function at 43 this time? 44 A. At Canberra I was. 45 46 Q. And did you do a site register sheet for the Antill 47 Street Project?


1 A. I don't believe I did, no; I wasn't there for that. 2 3 Q. You weren't there for that. What were you at the 4 Antill Street project for? 5 A. Okay. Like I just stated, I was updating the site 6 records that Mr Kirkwood had left. Now, that job was still 7 going. 8 9 Q. No, you told me you weren't there to update the site 10 register sheet? 11 A. I'm sorry, Commissioner, I was -- 12 13 Q. I thought he had finished. 14 A. No, you asked me if I'd done a site register sheet and 15 I explained the trip to Canberra - also part of my duties 16 was going around with Mr Kirkwood's information making sure 17 it was still relevant. Now, if the job hadn't completed 18 and it was still going, there was no need for me to do 19 a site register sheet because the information would have 20 been correct. 21 22 Q. So this is completely irrelevant to the Antill Street 23 Project? 24 A. What is completely irrelevant? 25 26 Q. This site register sheet. 27 A. No, I went there to make sure that the job was still 28 going, that our contacts we had there were still there and 29 that was it. 30 31 Q. You went there to check whether the job was still 32 going? 33 A. Well, these records that Mr Kirkwood left, like 34 I said, a time period has lapsed. It's very possible in 35 that time that some construction projects had finished. 36 That's why on our site register sheets, when we do it 37 properly, you will see what it says, "practical completion" 38 with a date written down. I don't believe they were on 39 Mr Kirkwood's records, so that we had no idea when PC was. 40 41 Q. Where are these records of Mr Kirkwood? Are they in 42 your statement? 43 A. No. I don't have them, no. 44 45 Q. What happened to them? 46 A. I'm not sure. I'm the wrong person to ask, 47 Mr Stoljar.


1 2 Q. Aren't you the one who was looking at them for the 3 purposes of -- 4 A. I had them at the time. I don't have them now. They 5 may still exist, but I am the wrong person to ask. 6 7 Q. What happened to them? 8 A. I don't know. 9 10 Q. What did you do with them? 11 A. Oh, what did I do with the copy I had? Once 12 I'd finished my work in Canberra I didn't need it any more. 13 14 Q. What did you do with it? 15 A. I'm not sure if it's still in my file desk at work or 16 maybe I threw it in the bin, I'm not sure. Once it was 17 updated and we had a true account of what was happening in 18 Canberra, there was no need for me to keep it any more. 19 20 Q. You just happened to go around to the Antill Street 21 Project to see if the job was still going? 22 A. That was right, based on the information that we had 23 of the old registers from Damian Kirkwood. 24 25 Q. Couldn't you see that from the outside, whether it was 26 going or not? 27 A. Yes, but what you cannot see from the outside and what 28 happens from time to time on various projects is site 29 managers and project managers often change within one to 30 two months before the project finishes, so it is important 31 to make sure that any contact details we have are still 32 relevant. 33 34 Q. Where do I find in your statement that you went there 35 solely to see if the job was still going? 36 A. I said - where - are you referring to paragraph 22? 37 38 Q. Yes. 39 A. So where -- 40 41 Q. Yes, right in the middle. 42 A. Righto. It doesn't say - it doesn't say there that 43 I solely went there to make sure our records were still up 44 to date, but that was part of the trip to Canberra and I'm 45 sure if you look at 23, I think I state it there. 46 47 Q. You went there and at least part of your reason for


1 going there was to put some pressure on Advanced Plumbing 2 to sign up with the EBA and that's why you had the 3 conversation that you had, I suggest to you, with Maz? 4 A. That's not true, Mr Stoljar. 5 6 Q. And even if you had another purpose of checking 7 records or the like? 8 A. That's not true, Mr Stoljar. 9 10 Q. I note that you kept in your statement a number of 11 site register sheets and the like. 12 A. Yes. 13 14 Q. So you kept those ones. 15 A. Yes. 16 17 Q. Is that right? 18 A. I kept these ones. I recall that these are the site 19 register sheets that I believe I filled out. I ticked them 20 and put my initials there. I believe these are the ones 21 that I did while I was in Canberra at that time. 22 23 Q. But whatever records you had in respect of 24 Antill Street, I understand you say you didn't fill out 25 a site register sheet? 26 A. Yes. 27 28 Q. You didn't keep those ones? 29 A. No. If all the information was still current and 30 active, there was no need to update them. 31 32 Q. There's no records at all for Antill Street? 33 A. I never filled out any records for Antill Street while 34 I was there, no. 35 36 Q. But you never kept any either? You didn't keep 37 Mr Kirkwood's? 38 A. I didn't keep Mr Kirkwood's copy, no. 39 40 Q. You then describe another visit to Antill Street and, 41 as I understand it, this is a separate visit that you made; 42 is that right? 43 A. If you're referring to the time when Dan Hanford was 44 with me, that's correct. 45 46 Q. And you say that was to introduce Dan Hanford to site 47 management?


1 A. That's correct. 2 3 Q. Is this the position - you might turn up to a site to 4 do a safety inspection when you received a complaint of 5 some sort, you might turn up to introduce a new employee, 6 you might turn up to speak to workers; is that right? 7 A. Yes, it's possible for me to go on-site to conduct 8 safety inspections. It's also possible for me to go around 9 introducing the new official, State official, that will be 10 taking care of business for the plumbers and matters in the 11 future. 12 13 Q. And you -- 14 A. Just to show up to talk to workers, no, that's not 15 true. I mean, I never do that. I don't just show up to 16 talk to workers. 17 18 Q. Just to be clear, in paragraph 22 when you say: 19 20 I was not there for any safety inspection 21 or to speak to workers. 22 23 A. That's right. 24 25 Q. You say that you would never, in fact, go to a site to 26 speak to workers? 27 A. I will if I'm accompanying another official who has 28 already put in their 24 hour right-of-entry notice to hold 29 discussions, but I would never just rock up out of the blue 30 to speak to a worker. 31 32 Q. I am just trying to understand the reasons why you 33 might be arriving at sites. We've got obviously where you 34 are as a safety officer have identified a safety concern, 35 you go there for that purpose. Another purpose is when you 36 are just introducing workers to a -- 37 A. Introducing workers? 38 39 Q. I am sorry, introducing Mr Hanford, for example, a new 40 worker, meaning a new employee of the CEPU? 41 A. At that time in Canberra, yes. 42 43 Q. Another might be where you're updating site register 44 sheets; is that right? 45 A. Mmm-hmm. 46 47 Q. Another is when you just sort of turn up to see if the


1 job is still going? 2 A. That also classifies as updating site register sheets. 3 4 Q. But you didn't do that? 5 A. They're not two separate items. Updating a site 6 register sheet and showing up to see that the job is still 7 active is the same thing, Mr Stoljar. 8 9 Q. When you went to Antill Street the first time, you 10 never did update anything, did you? 11 A. The information must have been correct at the time. 12 There's no need to update correct information. 13 14 Q. You're just guessing as you go along, aren't you? 15 A. I'm not guessing. If I have no record of it it's 16 because the information that was there was correct. 17 18 Q. Isn't this the position in respect of 19 Advanced Plumbing? You start at the CEPU in April 2013? 20 A. That's correct. 21 22 Q. And then May 2013, I know you say you don't know about 23 this but I am just suggesting to you, Mr Hooper says he 24 doesn't want to go ahead with the EBA, he says he's pulling 25 out of the process. The signing had been due for the next 26 day. Did you know that? 27 A. You are suggesting that I knew this information? 28 29 Q. I am asking you. Did you know that? 30 A. No, no, I didn't know that. 31 32 Q. I understand that was your evidence before. And then 33 I'm just telling you that after that, Mr Kirkwood went to 34 the Easty Street site and to the Antill Street project and 35 then Mr Kirkwood leaves some time, let's say May or June or 36 thereabouts; that's right? 37 A. No. 38 39 Q. When did he leave? 40 A. Sorry? Sorry, when did Mr Kirkwood cease employment? 41 I don't know the exact date, Mr Stoljar. 42 43 Q. Anyway, shortly after you started? 44 A. I don't know. 45 46 Q. He had gone by July when you went to Canberra? 47 A. Yes, he wasn't there by the time I went there, no.


1 2 Q. Sometime in late June, you say you get this anonymous 3 complaint on a post-it note. Then you go to Canberra 4 1 July; 2 July, you have your conversation with Mr Hooper, 5 and we've had a discussion about what was said in that 6 conversation. Now, at about that time, 7 a gentleman - I will just call him Fihi from the 8 CFMEU - had also been saying that if no EBA was signed, he 9 would be attending Easty Street and shutting it down. Do 10 you know anything about that? 11 A. I can't comment on that. I had no knowledge of that. 12 13 Q. Did you have any discussions with a representative 14 from the CFMEU when you were down here? 15 A. I may have spoken to some of the officials. I don't 16 remember speaking to Fihi about Advanced Plumbing, no, not 17 at all. 18 19 Q. Well, you don't remember or -- 20 A. Well, why would I speak to another - an official from 21 another organisation when, if it's a plumbing company, it's 22 something that we look after. 23 24 Q. Can you offer any explanation as to how Fihi was 25 saying that if no EBA was signed, they would -- 26 A. No, I cannot offer any information. I've got no - 27 I don't know what other organisers are running around 28 saying. 29 30 Q. Then you went off to Easty Street on 2 July and you 31 had some discussion with Mr Hooper there. Then you went 32 off to Antill Street, you say, to update the records, and 33 you, I suggest to you, criticised Advanced Plumbing to the 34 site supervisor? 35 A. That's not correct. No. 36 37 Q. Then you and Mr Hanford turned up again at the 38 Antill Street site. You say it was to introduce 39 Mr Hanford? 40 A. That's right. I introduced Mr Hanford, yep. 41 42 Q. Then you and Mr Hanford turned up at the Iron 43 Knob Street Project? 44 A. I believe - you're speaking of the Capiezio & Co site, 45 is that right? 46 47 Q. The --


1 A. Yes, it is Capiezio & Co, corner of Iron Knob and 2 Tom Price Streets. 3 4 Q. On 7 and 8 August, the CFMEU came to sites where 5 Advanced Plumbing was working? 6 A. I have no knowledge of that. 7 8 Q. And made some comments about Advanced Plumbing? 9 A. I have no knowledge of that. 10 11 Q. You you can't offer any -- 12 13 THE COMMISSIONER: You said 7 April? 14 15 MR STOLJAR: 7 August, I do beg your pardon, Commissioner. 16 17 Q. And also on 8 August? 18 A. I have no knowledge of what was done without my 19 presence, I'm sorry, Mr Stoljar. 20 21 Q. Well, did the CEPU have an office at this stage in 22 Canberra? 23 A. When Dan started - yes, Dan's office was located at 24 the CFMEU office. 25 26 Q. Mmm. And were you in and out of the CFMEU office 27 yourself? 28 A. When I came - when I was down that time assisting 29 Dan - so you've got to - that office wasn't inside the 30 secure doors of the CFMEU. So, if you walked through the 31 foyer, it's on - it's one of the small offices to the 32 right. So, I mean, it is not an office that is going to be 33 accessed by anyone. You don't actually go through the 34 CFMEU security doors to Dan's office. 35 36 Q. Well, Dan is working, what, on the same floor? 37 A. In the same building. 38 39 Q. In the same building? 40 A. Yes. 41 42 Q. On the same floor, but you say not in literally the 43 same office? 44 A. That's true. 45 46 Q. What, you had to walk past Dan's door to get to the 47 CFMEU office, did you?


1 A. Yes. 2 3 Q. It is right next-door? 4 A. Yes. 5 6 Q. And where was your office in Canberra? 7 A. I didn't have an office in Canberra. 8 9 Q. Did you work out of Dan's office? 10 A. Any time I was in Canberra, I was - the only office 11 I would have been working out of was where Dan was. 12 13 Q. And what about my question, were you going in and out 14 of the CFMEU office, yourself, at that time? 15 A. No. It's very possible, yes. 16 17 Q. Very possible. And the CFMEU was also going to 18 Advanced Plumbing sites and making comments about them at 19 that time? 20 A. I had no knowledge of that. 21 22 Q. Is that your honest evidence? 23 A. Yes, it is my honest evidence. I've asked to provide 24 the truth, and that's what I'm doing. 25 26 Q. And I suggest to you that this was all part of the 27 campaign to force Mr Hooper to do what he didn't want to do 28 and that is sign an EBA? 29 A. No, Mr Stoljar, that's incorrect. 30 31 Q. Did you see the email that Mr Hooper sent Mr Broadley 32 at about this time? I'll take you to it. It is tab -- 33 A. You will have to show me. I haven't seen any emails. 34 35 Q. It is tab 8 of Mr Hooper's affidavit. It will come up 36 on the screen. 37 38 THE COMMISSIONER: Statement. 39 40 MR STOLJAR: Q. Have you seen this email before? 41 A. I've never seen this email. 42 43 Q. Among other things, he says in this email: 44 45 The CFMEU went to a site in Fyshwick today. 46 They brought up the name of my company ... 47 said they'd been on many sites of which


1 I have been working and that I have no 2 regard for safety. 3 4 Do you know anything about that? 5 A. I know nothing about that. 6 7 Q. You accept, I take it, that the CEPU did want 8 Mr Hooper to sign an EBA? 9 A. Well, all unions want all contractors to sign an EBA. 10 11 Q. Well, what is the answer to my question? You accept, 12 do you, that the CEPU did want Mr Hooper to sign an EBA? 13 A. I would say at the time, Mr Stoljar, if they were 14 dealing with Jason Hooper, yes, that's what it would have 15 been for. 16 17 Q. And, indeed, they were putting as much pressure on him 18 as they could to get him to sign it? 19 A. No, that's not true. 20 21 Q. Do you have any performance reviews, anything like 22 that, at the end of the year? For example, does someone 23 sit down with you and set targets for what you should be 24 achieving and that sort of thing? 25 A. For myself? 26 27 Q. Yes. 28 A. No. 29 30 Q. Nothing like that? 31 A. No. 32 33 Q. Who do you report to? Who is your boss in the 34 organisation? 35 A. Who is my boss? Every organisation has a chain of 36 command. Obviously the Secretary, Dave Broadley, and then 37 the Assistant Secretary, Theo. 38 39 Q. Theo. Who is checking on what you do on a day-by-day 40 basis? 41 A. Checking, in what way? Like, is someone ringing me up 42 and saying, "Exactly where are you right now?" 43 44 Q. No. I mean, you - for example, let's take a concrete 45 example. You say that Mr Wright gave you a post-it note 46 with, what, a number of anonymous complaints on them? 47 A. Mmm-hmm. Numerous notes. Not one note, it is


1 numerous notes. 2 3 Q. Numerous notes? 4 A. Mmm-hmm. 5 6 Q. Well, how many? 7 A. Like I said I don't think it would have been any more 8 than maybe four. 9 10 Q. What did you do with them? Put them in your pocket? 11 A. I think we've already established this. I don't know 12 what was done with them. 13 14 Q. No, when you got them from Mr Wright, I meant. 15 A. Oh, when I got them from Mr Wright, I had them in 16 a folder with paperwork that I had to take to WorkSafe ACT, 17 where I went and got my Right of Entry, so I had a folder 18 with stuff I had to do in Canberra on me. That's where 19 I would have put them. 20 21 Q. Well, you never managed to get to the Easty Street 22 Project until some days later, that's right, isn't it? 23 A. The 3rd, I believe that I was there, that's true. 24 25 Q. Did you talk to anyone about what, you know, how you 26 were going to organise your visits, what was urgent and 27 what wasn't, and what you should be doing, did anyone -- 28 A. I actually didn't tell them how I'm going to organise 29 my visits and like I've said before, if you've got numerous 30 anonymous complaints, it's very hard to put priority of one 31 over the other. 32 33 Q. You had just started there in April, that's right, 34 isn't it, a few months before? 35 A. Yes, that's right. 36 37 Q. You are a gyprocker by trade? 38 A. I am a sheet metalworker by trade, but I have done 39 gyprocking as well, yes, that's right. 40 41 Q. You had done your eight hours of safety training to 42 get your permit? 43 A. That's correct. 44 45 Q. That's the only training you had done at this point? 46 A. Like I said -- 47


1 MR DOCKING: That's not correct. 2 3 MR STOLJAR: I said "at this point". 4 5 MR DOCKING: There was CFMEU training he had done as well. 6 7 MR STOLJAR: Well, I don't know if there is any evidence 8 to that effect. 9 10 THE WITNESS: I'm sorry, I think that's when I spoke too 11 fast before when you asked me to slow down. I did HSR 12 training while I was at the CFMEU. 13 14 MR STOLJAR: Okay. Right. Well, I withdraw that. 15 16 MR DOCKING: WHS Canberra training as well. 17 18 THE WITNESS: I did, yeah. Sorry. 19 20 MR STOLJAR: Q. You did. I beg your pardon, Mr Poskus, 21 you did give that evidence. That was with the CFMEU? 22 A. That's correct. 23 24 Q. Not with the CEPU? 25 A. No, that's correct. 26 27 Q. Did you tell WorkSafe about these complaints? 28 A. I only ever called on the assistance of the Regulator 29 if I'm coming across difficulties on site. For instance, 30 when I say "difficulties", like just recently I was -- 31 32 Q. I don't need the -- 33 A. Okay. Well, "difficulties", that I'm trying to be 34 denied right of entry, or someone will not let me have 35 access, or they won't recognise my right to enter 36 workplace, that's when I'll call the Regulator, or if I'm 37 being threatened. 38 39 Q. But you actually had to go to WorkSafe, you said to 40 us, on 1 July, from memory, to get your permit? 41 A. This bit - yeah, I'm not sure exactly where the 42 building is, but that's where I got my WorkSafe ACT card. 43 I don't know if it is the WorkSafe ACT building. 44 45 Q. You were carrying with you your post-it notes; is that 46 right? 47 A. At that time I had my folder with everything that


1 I needed in it, to show up to get the WHS Right of Entry 2 training for the card for Canberra, and that's what I would 3 have had on me. 4 5 Q. Did you alert WorkSafe to the fact that you had 6 received what you say were very serious complaints? 7 A. It is not a requirement, sir. If we receive anonymous 8 complaints to alert WorkSafe, if someone wants to, they can 9 ring up the Regulator them self. 10 11 Q. My question was did you notify -- 12 A. No. 13 14 Q. -- WorkSafe? 15 A. No. 16 17 Q. You didn't tell them? 18 A. No, I didn't tell WorkSafe. 19 20 Q. And you say you didn't even tell Mr Hooper when you 21 talked to him the next morning on the phone? 22 A. No, you do not tell an employer that someone has rang 23 up from their company complaining about safety. Why would 24 you do that? 25 26 Q. Well, because maybe something urgently could be done 27 to fix the complaint? 28 A. Not at all. Actually, the WHS Act prohibits you from 29 doing that. 30 31 THE COMMISSIONER: Q. You say there is a provision, and 32 this is just an open question, a matter of request. There 33 is a provision in the Work Health and Safety Act, is there, 34 that says if a relevant Union official receives an 35 anonymous complaint about a safety problem, it is against 36 the law for the official to contact the relevant 37 contractor? 38 A. No. No, Commissioner. Sorry if that is what it came 39 across as. What it actually says is that we must protect 40 the anonymity of the person making the complaint, to 41 protect them, I guess, from freedom of association. 42 43 MR STOLJAR: Q. But you didn't know, I thought your 44 evidence was, who the person who made the complaint was? 45 A. That's right. 46 47 Q. So, there's no danger of you revealing that to


1 WorkSafe? 2 A. I don't - I don't know anyone who would ring up a boss 3 and say, "Oh, by the way, guess what, someone where you 4 work has said safety complaints were made, anonymous safety 5 complaints." It's counterproductive. 6 7 Q. Mr Poskus, my question was not directed to asking if 8 you had revealed the name of the complainant to WorkSafe. 9 My question was: did you mention to WorkSafe that you had, 10 these, you say, very serious and urgent safety concerns 11 about a site at Easty Street? 12 A. No. I've never rung WorkCover or WorkSafe and done 13 that. 14 15 Q. Well, never mind whether you had rung them. When you 16 were in the office getting your permit, talking to them, 17 did you mention anything about this? 18 A. Just so we can clarify it, Mr Stoljar, I'm not sure if 19 it's the WorkSafe ACT building. The building where these 20 permits, where you go in to get them, I don't think it is 21 the actual Regulator's office. I'm not sure. It is in 22 Canberra. Someone could find the address and look it up, 23 but I don't think it is the actual WorkSafe building. 24 25 Q. All right. 26 A. I might be wrong, if someone wants to check that out, 27 but I don't think it is. 28 29 Q. Could you come to paragraph 39 of your statement. 30 A. Yes. 31 32 Q. You are now talking about Mrs Lo Re. You say in the 33 third line: 34 35 I attended ... 36 37 And you are talking about the Envy Apartment site, and you 38 say: 39 40 ... as there had been a safety complaint. 41 42 A. Yep. 43 44 Q. Who had that been from? 45 A. Who had it been? That was another anonymous 46 complaint. 47


1 Q. Another one? Who told you about this one? 2 A. They were - what do you mean who told me about it? 3 I thought I had already brought this up. These were all 4 given to me on post-it notes. 5 6 Q. What, Mr Wright gave you that one on a post-it note as 7 well? 8 A. I was given any complaints that had come through 9 Canberra at the time. 10 11 MR STOLJAR: Commissioner, I just need to track down 12 a different piece of paper. I wonder if that would be 13 a convenient time? 14 15 THE COMMISSIONER: Yes. The hearing will resume at 10 to 16 12. 17 18 MR STOLJAR: May it please the Commission. 19 20 SHORT ADJOURNMENT 21 22 THE COMMISSIONER: Yes, Mr Stoljar. 23 24 MR STOLJAR: Commissioner, I omitted to ask Mr Poskus 25 about a supplementary witness statement and to put that 26 into evidence. 27 28 Q. Do you have a copy of a supplementary witness 29 statement of 20 July 2015, Mr Poskus? 30 A. I'm sorry, Mr Stoljar, what was that? 31 32 Q. Do you have there, with you in the witness box, a copy 33 of your supplementary witness statement of 20 July 2015? 34 A. The supplementary one - I've only got one statement 35 here in front of me. 36 37 Q. I will give you a copy of your supplementary. 38 A. As well, if I may ask you, Commissioner, this email 39 that was given to me before, I'm not sure if I am meant to 40 have it? I've still got it. 41 42 THE COMMISSIONER: Well, if Mr Stoljar has finished asking 43 you about it. Thank you for drawing that to our attention. 44 Witnesses tend to get overburdened by folders and pieces of 45 paper. So, any time you feel lost, just draw my attention 46 to that. 47


1 MR STOLJAR: Q. Is the content of your supplementary 2 witness statement dated 20 July 2015 true and correct? 3 A. Yes, it is. 4 5 MR STOLJAR: I ask that the supplementary witness 6 statement of Mr Poskus be received into evidence, 7 Commissioner. 8 9 THE COMMISSIONER: Yes, that is received into evidence. 10 11 SUPPLEMENTARY WITNESS STATEMENT OF LUKE RAYMOND POSKOS 12 DATED 20/07/2015 13 14 MR STOLJAR: Q. Can I take you back to your first 15 witness statement, being your statement of 17 July 2015. I 16 was asking you before the break about paragraph 39. 17 A. Yes. 18 19 Q. And you are dealing there with a visit to the Envy 20 Apartment site. 21 A. Yes. 22 23 Q. Just before the break, I was asking you about the 24 safety complaint. Is this one of the four safety 25 complaints that Mr Wright gave you, is it? 26 A. I am assuming so, yes. 27 28 Q. You assume so? 29 A. Yes. 30 31 Q. You don't know one way or the other? 32 A. Well, it's very hard to remember, but I'm assuming it 33 would be. 34 35 Q. So this was all in the same week that you were in 36 Canberra, or thereabouts, was it? 37 A. It could be. Actually, I don't know if I'd been - if 38 I've provided any dates, I'm not sure. 39 40 Q. You don't keep any records of this sort of thing? 41 A. Not - like I said, normally they would be - you would 42 have your carbon copy attachment in your book. 43 44 Q. Who were the CEPU members at this site, the 45 Envy Apartment site? 46 A. I just want to catch up to where you are referring to, 47 Mr Stoljar.


1 2 Q. Paragraph 39. 3 A. Paragraph 39, yep. 4 5 Q. And I asked you who were the - did you have, I won't 6 ask you who they are in the sense of their identities, but 7 did you have CEPU members on site? 8 A. I wouldn't have known at the time. I mean, how would 9 I know if there were members on site, eligible members, or 10 potential members, or members? 11 12 Q. Well, hadn't you been around to all sites in Canberra? 13 A. I had been to do the site records but I don't - while 14 I'm on site, I don't ask to speak to every plumber and ask 15 them if they're a member or not. 16 17 Q. There was a complaint made about emergency lighting? 18 A. That's correct. 19 20 Q. Did that have something to do with the plumbers? 21 A. Sorry? 22 23 Q. Who is in charge of emergency lighting? 24 A. The builder is. 25 26 Q. The builder? 27 28 Q. The principal contractor? 29 A. Yes. 30 31 Q. So why have they come to the CEPU, do you know? 32 A. I can tell you, Mr Stoljar, from my experience, only 33 on my experience in the industry, people are very scared to 34 bring up any safety issues with the principal contractor 35 for fear that they'll either be booted off the job or 36 they'll be victimised on the project. I've seen it 37 first-hand, and I've had it happen to myself. 38 39 Q. I thought it was an anonymous complaint? 40 A. It was. You just asked me why wouldn't they go and 41 speak to the builder. I'm giving you a reason why they 42 would not. 43 44 COURT REPORTER: I am sorry -- 45 46 THE WITNESS: Oh, sorry, am I going too fast again? 47 I apologise. I apologise.


1 2 THE COMMISSIONER: Just one moment, Mr Stoljar. 3 Mr Poskus, there is no need to get unduly agitated or 4 over-energetic, if I can put it that way. Just take it at 5 an easy pace and the stenographers will be able to get it 6 down, that is the main thing, to get the evidence accurate. 7 8 THE WITNESS: Okay, Commissioner. Mr Stoljar, I thought 9 you were asking me whether or not if the plumbers on the 10 job had a safety issue, why they wouldn't raise it with the 11 builder, isn't that what you asked me? 12 13 MR STOLJAR: Q. No. 14 A. Oh, sorry. 15 16 Q. I am saying are you able to offer any explanation as 17 to why a safety complaint about the builder was made 18 anonymously to the CEPU in Sydney? 19 A. Why was it made anonymously to the CEPU in Sydney? 20 Well, at the time, when they received it, there was 21 obviously no office in Canberra. So, where else would the 22 complaint come to? 23 24 Q. Did the complainant identify why they were approaching 25 the CEPU in Sydney about a Canberra site in relation to an 26 issue that had nothing to do with the CEPU? 27 A. It had - what do you mean it had nothing to do with 28 the CEPU? 29 30 Q. Well, the problem was the emergency lighting -- 31 A. That's correct. 32 33 Q. -- according to you which was a problem for the 34 builder. 35 A. Which is a light safety device on construction sites, 36 which relates to the safe access and egress in case of an 37 emergency if the power is out, and if my members or 38 potential members are on the project and need to get off 39 that job in case of an emergency, when there is no power, 40 then they are at risk of injuring them-self if it is dark. 41 42 Q. Had you really received an anonymous complaint, or is 43 that something that you have thought about afterwards? 44 A. No, there was an anonymous complaint. 45 46 Q. Which you never kept? 47 A. No, I never kept it. I think I've stated that before.


1 2 Q. Didn't you say in paragraph 23 of your statement that 3 you attended every work site under construction? 4 A. I believe I would have, yes. 5 6 Q. Was that before or after you went to the Envy 7 Apartments? 8 A. I can't say, Mr Stoljar. 9 10 Q. Why didn't you raise it when you went to update your 11 site register at the trip to the Envy Apartments? 12 A. If I was on site to update site registers, for one, 13 I would never bring up a safety issue because that is 14 mixing any - that is mixing what could be classified as 15 industry with safety, so why would I confuse the two? 16 17 Q. Let me just understand this. Is this your evidence: 18 you went to the Envy Apartments site. No, let me go back 19 a step. Mr Wright gave you your post-it notes back in 20 Sydney, then you come to Canberra. Then you go to every 21 site and you update the site register, and by every site 22 you include the Envy Apartments site? 23 A. That would have happened in Canberra, yes. 24 25 Q. You don't say anything on your trip to the 26 Envy Apartments site, to update the site register, about 27 what you say is a serious issue? 28 A. I state that I visited every site in Canberra that was 29 currently still in construction, or under construction, 30 yes. 31 32 Q. And then you went back again to the Envy Apartments 33 site and this time you raised this issue about there being 34 no emergency lighting on the project? 35 A. I cannot remember, Mr Stoljar, how I systematically 36 approached those tasks that I had while I was in Canberra, 37 so I can't say. 38 39 Q. When you got these post-it notes, why didn't you ring 40 WorkSafe, or the contractor, straightaway from Sydney and 41 say, "Look, there's urgent matters that need to be fixed up 42 on these sites."? 43 A. If you can show me to what part of the legislation you 44 are referring to that I am required by law to call 45 WorkSafe -- 46 47 Q. I am not saying you are required by law. I am just


1 saying as a matter of commonsense, if you say there is 2 life-threatening issues on these sites, why wouldn't you 3 ring up and say, "For goodness sake, do something"? 4 A. To be honest, Mr Stoljar, I take offence to that, you 5 saying it's commonsense. I have no need to ring the 6 Regulator, unless I need their assistance on a project if 7 I'm having problems. 8 9 Q. So you just let the matter roll, did you, until you 10 had done things like come to Canberra and, indeed, done all 11 your site visits, and then you go to the Envy Apartments? 12 A. Like I said, and I have just stated, I cannot recall 13 how I systematically approached the tasks I did in 14 Canberra. 15 16 Q. You say that you provided him with a notice, this is 17 in paragraph 40? 18 A. That's correct. 19 20 Q. Is this to Mr Brydon, can you remember? 21 A. I can't remember the name, I'm sorry, Mr Stoljar. It 22 was a young man, though. 23 24 Q. Did you make any complaint about Capital Hydraulics 25 when you were on the site? 26 A. No, not at all. 27 28 Q. Did you tell him that they weren't signing an EBA? 29 A. No, I did not. 30 31 Q. You then went off to a project called 2913? 32 A. I do remember attending a project called Nation Job. 33 Whether it's that job, I'm not sure, but the card that 34 I had, it was "Richard Ash", so that's why I was a little 35 bit confused, but I was definitely on a project called 36 Nation Job. 37 38 Q. This was on the same trip to Canberra, was it? 39 A. I believe so, yes. 40 41 Q. You say in 44 this was another safety complaint? 42 A. That's right. 43 44 Q. What was this complaint? 45 A. This complaint was that there was no medical system on 46 the job. 47


1 Q. When had you received this one? 2 A. What do you mean when did I receive it? 3 4 Q. Well, was this another -- 5 A. It was another anonymous complaint. 6 7 Q. On another post-it note? 8 A. Yes. Like I said, like I stated before, there were 9 numerous ones. 10 11 Q. You said there were four, actually. 12 A. Well, I said "I think". When you asked me to define 13 "numerous", I think there was definitely about four. 14 15 Q. Excuse me just a moment. You see, you say in 16 paragraph 44: 17 18 Failure to install this system may have 19 life threatening consequences and may 20 result in a fatality. 21 22 A. Absolutely. 23 24 Q. But you didn't regard it as sufficiently urgent to do 25 anything about it when you first heard about it in Sydney? 26 A. Well, like I've said, Mr Stoljar, how do you put 27 priority over one anonymous complaint over another? How 28 would you know? How can you do that? I don't know how 29 anyone can do that. 30 31 Q. Well, by considering the seriousness of the matter 32 that had been raised is one -- 33 A. Well, I also -- 34 35 Q. -- obvious way, isn't it? 36 A. I'm sorry, Mr Stoljar. I also suggested people being 37 hit by moving plant is also very serious. Electrical 38 faults is also very serious. And, in fact, we've had 39 someone just die in New South Wales two days ago on a 40 Rapid Construction job, an old man from a fall from heights 41 issue, so every issue is serious, Mr Stoljar. 42 43 Q. I couldn't agree with you more, Mr Poskus, and as has 44 been said in this Commission on numerous occasions, this 45 issue of safety is one that requires constant vigilance and 46 needs to be taken extremely seriously. 47 A. 100 per cent.


1 2 Q. But what I'm asking you about is when you found out 3 about this complaint in relation to the 2913 Project? 4 A. Yes. And your question again, sorry, Mr Stoljar? 5 6 Q. Well, I am just endeavouring to understand that that 7 was one of the ones you had received back in Sydney on the 8 post-it note, is it? 9 A. I believe so, yes. 10 11 Q. And you say in 44: 12 13 I gave him a notice of a suspected breach. 14 15 What was the form of that notice? 16 A. It's the Work, Health and Safety notice pad that we 17 have. 18 19 Q. And you say: 20 21 This safety issue and inspection that 22 I conducted had nothing to do with 23 Capital Hydraulics. 24 25 A. Nothing at all. 26 27 MR STOLJAR: Nothing further, thank you, Commissioner. 28 29 THE COMMISSIONER: Yes, Mr Morison? 30 31 <EXAMINATION BY MR MORISON: 32 33 MR MORISON: Q. Just following on from something 34 Counsel Assisting has just asked you, you say that you 35 received the safety complaints in Sydney? 36 A. That's right. 37 38 Q. And -- 39 A. Just so we're clear, sorry, I didn't mean to cut you 40 off, I didn't personally receive them, I was given them, 41 yeah. 42 43 Q. You were given the post-it notes? 44 A. Yes. 45 46 Q. I have a bunch of post-it notes just here 47 (indicating). Is that the type of post-it note you were

.24/07/2015 CFMEU ACT 1037 L R POSKUS (Mr Morison) Transcript produced by DTI

1 referring to? 2 A. No, those are very small ones. I don't know what 3 you've done to the original sized ones, if you've cut them 4 up, but the original ones are -- 5 6 Q. They are the post-it notes that I use. You got big 7 ones, did you? 8 A. If you want me to clarify the correct format, I know 9 that the 3M brand comes in a lot of sizes. It's the 10 original sized post-it notes. She's got one - she's got 11 one over here. (Points to Court Officer). 12 13 Q. If you have a look, is that the size we're talking 14 about? (Witness shown post-it note). 15 A. That's the standard size, yes. 16 17 Q. They're the ones that you used, that you took from 18 Mr Wright? 19 A. That would have been the right size I was given, yes. 20 21 Q. Are all that size, are they? 22 A. Yes. 23 24 Q. Right. And there was, what, one job on each of the 25 post-it notes, was there? 26 A. That's right. 27 28 Q. Right. And the first -- 29 30 MR DOCKING: Perhaps the record should indicate what has 31 been held up, otherwise it will make no sense. 32 33 THE COMMISSIONER: Let's just get Mr Stoljar to tender one 34 post-it note. 35 36 MR STOLJAR: I tender the post-it note that appears to be 37 the agreed size of the one that was handed over by 38 Mr Wright. 39 40 THE COMMISSIONER: That will be Poskus MFI-3. 41 42 POSKUS MFI-3 AGREED SIZE OF BLANK POST-IT NOTE HANDED TO 43 MR POSKUS BY MR WRIGHT 44 45 MR MORISON: Q. You told us a little while ago that 46 various things were written on each of those post-it notes; 47 is that right?


1 A. That is correct. 2 3 Q. Was it in, like, block handwriting, or how what was 4 the writing? What colour pen was used or -- 5 A. I don't know what coloured pen was used. I don't see 6 what relevance that has. 7 8 Q. Was it legible to you or very blurry? 9 A. Yes, I could read it, yes. It was easily read. 10 11 Q. On the first one was, "Moving plant. Pedestrian 12 issue. Issue with access and egress. Fall from heights." 13 A. Sorry, can you just repeat that again, Mr Stoljar - 14 sorry, Mr Morison, I apologise. 15 16 Q. I am reading from your statement about what was on 17 that first - what you gave in evidence as to what was on 18 that first -- 19 A. So what would have been written was the name of the 20 builder and what the safety issues were: "Moving plant". 21 22 Q. Right. So the name of the builder? 23 A. Yep, "Fall from heights. Moving plant." 24 25 Q. Fall from heights? 26 A. Fall from heights, that's correct. Access/egress. 27 28 Q. "Moving plant." A pedestrian issue? 29 A. I believe it was just "Moving plant". "Pedestrian" - 30 it's the same thing. 31 32 Q. Just have a look at your statement. 33 A. Yes, I don't need to look at my statement. It is 34 "moving plant" and "pedestrian", yes, you're correct. 35 36 Q. "Issue with access and egress. Fall from heights"? 37 A. Yes. 38 39 Q. All of that is written on the first post-it note? 40 A. Would you like me to write it down on a post-it note? 41 42 Q. No, I don't need you to do that for us. 43 A. Okay. Yes, it was all written down. 44 45 Q. All right. So you took those four post-it notes with 46 you. 47 A. Sorry, I just want to be clear. I believe there was


1 roughly four, Commissioner. I didn't say there was 2 exactly. I believe there was about four. 3 4 Q. And you went down to Canberra? 5 A. Mmm-hmm. 6 7 Q. Is that right? And how long were you in Canberra for? 8 A. I think from memory - look, it's hard to say and 9 I don't want - don't quote me as being accurate. It would 10 have been four to five days, possibly. I'm sorry, I -- 11 12 Q. And then you have given us at number 4, LP-4, the site 13 register sheets, do you see those? 14 A. Wait. Hang on, because there are a few LPs. LP-4, 15 yes, I've got them here, yep. 16 17 Q. You were telling us they were the site register sheets 18 that you filled out; is that right? 19 A. That's correct. 20 21 Q. Because what happens is - they are the ones that you 22 filled out in that week when you were down there; is that 23 right? 24 A. I believe so, yes. 25 26 Q. Right. And the reason why you've got site register 27 sheets filled out is because when you go to a site, if that 28 site is still operating with the same subcontractors that 29 Mr Kirkwood had on his one -- 30 A. Yep. 31 32 Q. -- there's no need to do a new one; is that right? 33 A. That's right. If there was no need to update, there 34 would have been no need to do a new one. 35 36 Q. And that is why you didn't have one for that site 37 where Advanced Plumbing were operating? 38 A. At which site are you talking about? Antill or Easty 39 Street? 40 41 Q. There is one you didn't do one for. You went there 42 but you didn't do one. 43 A. Antill Street. 44 45 Q. You didn't need to do an update because it was the 46 same situation? 47 A. I believe that they were correct, yeah.


1 2 Q. All right. Just have a look at the fourth site 3 register sheet there. 4 A. Could you just tell me what's the principal contractor 5 you've got? 6 7 Q. Capiezio. 8 A. Capiezio & Co? 9 10 Q. Iron Knob and Tom Price Streets. 11 A. Yeah, yeah, I've got it here. 12 13 Q. The plumbing company: Advanced Plumbing and Drains, 14 do you see that? 15 A. Yep. 16 17 Q. So, why did you fill that one out? 18 A. Well, maybe the information we had was either -- 19 20 Q. I said why did you fill that out? 21 A. I said maybe because I definitely filled this out and 22 maybe the information was insufficient or wasn't correct. 23 24 Q. What was insufficient? 25 A. I don't know. I definitely filled this out. 26 27 Q. I know. Advanced Plumbing was working on that site at 28 that time, was it? 29 A. I believe so, yes. 30 31 Q. Right. And nothing had changed? They had been the 32 only hydraulic company that had been working on the site; 33 is that right? 34 A. I can't say that because you - don't forget, there was 35 also - when plumbing companies - please let me finish - 36 take a contract, they can sometimes either do just the 37 hydraulic or they can do the storm-water and drainage and 38 hydraulics, so I can't say, Mr Morison. 39 40 Q. I see. In any event, you had to fill one out for that 41 one; is that right? 42 A. Yes, I remember going to that job, yep. 43 44 Q. And that was in the four or five days when you were in 45 Canberra, after you had come down with those post-it notes; 46 is that right? 47 A. It could have been, yes.


1 2 Q. What do you mean it could have been? 3 A. Well, I went to Canberra a couple of times in that 4 month. 5 6 Q. Well, wasn't -- 7 A. I'm sorry, without the date, Mr Morison, I can't say 8 exactly. 9 10 Q. Right. Well, was it in the month that you came down? 11 A. Actually, I think - this Capiezio & Co, this would 12 have been - I'm pretty sure this is when maybe Dan Hanford 13 was there. I can't say for sure. There's no date on them, 14 I'm sorry. 15 16 Q. Right. So you've got no idea when you did that? 17 A. Well, no. I'm sorry, it doesn't stick in my memory, 18 there's no date. 19 20 Q. All right. Now, just tell me this, sir. Have you 21 ever been the person on the phone when an anonymous 22 complaint has been made? 23 A. I've received complaints in Sydney from members that 24 have my card, yes. 25 26 Q. Have you received an anonymous complaint on the 27 telephone yourself, "Yes" or "No"? 28 A. On my mobile phone, yes. 29 30 Q. Any phone. I don't care whose. 31 A. Yes. Well, you need to be more specific because 32 I don't man the phones at the office, but my phone, yes. 33 34 Q. So an anonymous person has rung you up and told you 35 about a complaint? 36 A. Yes. 37 38 Q. Is that right? 39 A. Yep. 40 41 Q. Have you ever received other than an anonymous 42 complaint? 43 A. Yeah. Yes, I have. 44 45 Q. How many? 46 A. Are you -- 47


1 Q. In your time as a safety officer. 2 A. Mr Morison, just to be clear, you are saying when 3 people are specific, they tell you their name, who they 4 work for, what job they have; where the issue lies? 5 6 Q. I'm not asking what they were wearing. 7 A. No, I -- 8 9 Q. Anonymous means - you know -- 10 A. I know what "anonymous" means, but there is another 11 type and I want to clarify exactly what you're asking me. 12 13 Q. Well -- 14 A. When someone specific -- 15 16 Q. Well, they've got to tell you the job, haven't they? 17 A. Yes, they do. 18 19 Q. Otherwise it would be pointless them calling you? 20 A. They do. 21 22 Q. Right. So they have to tell you their name. Has 23 anyone ever told you their name? 24 A. Yes. 25 26 Q. They have? 27 A. Yep. 28 29 Q. Right. To you, personally, rung you up and said, 30 "This is happening."? 31 A. Yes, I actually believe the name was already in my 32 phone when it came up. 33 34 Q. So they were a Union member; is that right? 35 A. Yes. 36 37 Q. Have you ever received a phone call from anyone that 38 is a non-Union member? 39 A. Yes, I have. 40 41 Q. And they've told you their name? 42 A. I don't think - no, they haven't told me their name. 43 44 Q. You have never received a complaint, either yourself 45 or in any post-it note, or any other record -- 46 A. Sorry, I'm wrong. I just remembered I did receive 47 a complaint last year from a bloke who was unfinancial.


1 I didn't know at the time, and that was on a project in 2 Redfern, a Daycorp job. Yes, so I have received from an 3 unfinancial member. 4 5 Q. Sorry? 6 A. You were asking me if I ever received a call from 7 someone who was not a member. Well, unfinancial is 8 classified as not a member, so I did receive a call. 9 10 Q. What, they hadn't paid their dues; is that what you're 11 saying? 12 A. That's right, so they were unfinancial. 13 14 Q. Let's put that to one side. 15 A. All right. 16 17 Q. You have never received or acted upon a complaint ever 18 for someone other than - that has been named - other than 19 a Union member; correct? 20 A. Oh, that's impossible for me to say. 21 22 Q. Why? 23 A. Well, how would I know? You are asking me to recall 24 three years of data in my head right now on the stand. 25 26 Q. Is there one? 27 A. There would have been 100 per cent. 28 29 Q. Well, name one. One. 30 A. Name one? 31 32 Q. Name one complaint. 33 A. Well, the unfinancial member constitutes as someone 34 who is not a member. 35 36 Q. Have you received one complaint from a non-Union 37 member? 38 A. It's very hard to say. Like I said, it's very hard. 39 40 Q. Is there one that you can point to? 41 A. How much time are you going to allow me to think about 42 this? 43 44 Q. Well, I shouldn't have thought it would take much time 45 because there wouldn't be many, surely. 46 A. To recall three years of memory, it would take a bit 47 of time.


1 2 Q. So there's been lots of them? 3 A. We get lots of complaints, that's right. 4 5 Q. No. I am talking about a non-Union member that names 6 themselves. I mean -- 7 A. Oh, that names themselves, no. How would 8 you - a non-Union member that names them-self? 9 10 Q. That's right. 11 A. Because they're anonymous. How would you know if 12 they're a non-Union member or not? 13 14 Q. You told us that you received some complaints where 15 people name themselves; right? 16 A. Yes. 17 18 Q. Okay. Have you received any complaint from someone 19 that names themselves, who is a non-Union member? 20 A. I can't remember. I can't recall right now. Sorry. 21 22 Q. Nothing - not one springs to mind? 23 A. There would be, but to narrow it down, it's very hard. 24 25 Q. Why would there be? 26 A. Why wouldn't it be? 27 28 Q. Well, what is it? 29 A. You are suggesting to me that only members of a union 30 have worries about safety? 31 32 Q. I am not suggesting that at all, sir. I'm asking you 33 whether you have ever received a complaint about safety 34 from a non-Union member where they've named themselves? 35 A. Look, I would have but, I mean, I can't think of it 36 right now on the spot like that. 37 38 Q. It would have happened but you've got no recollection 39 of it ever happening? 40 A. I can't think - no. If you're going to give me a bit 41 of time -- 42 43 Q. No recollection of it ever happening, have you? 44 45 COURT REPORTER: I'm sorry -- 46 47 MR MORISON: Sorry.


1 2 THE WITNESS: Sorry, was that my fault? Am I going too 3 fast? 4 5 THE COMMISSIONER: I don't think it was only your fault. 6 Do you want time to be given to the witness? 7 8 MR MORISON: To answer the question? 9 10 THE COMMISSIONER: Well, just that question. He said 11 several times that to answer your question with some 12 precision, not complete precision, but some precision, he 13 might have to think for a little while. 14 15 MR MORISON: Q. Would you go to your records, would you? 16 A. No, because my records that I have in Sydney -- 17 18 Q. Are you able to speak about it? 19 A. On my records that I have in Sydney, I don't write 20 down the person's name. There's no box there to write down 21 someone's name. 22 23 Q. Sir, if you had time to consider what I've just asked 24 you, what would you do? 25 A. I'd have to sit and contemplate what you've just asked 26 me. 27 28 Q. Meditate for a while? 29 A. I didn't say "meditate". 30 31 MR DOCKING: Commissioner, can I object to this? How is 32 this going to help the inquiry? As I understand it, 33 a right of entry can be exercised if the Union has 34 eligibility. Membership, in that sense, is irrelevant. 35 36 THE COMMISSIONER: This sounds again a theme we 37 encountered twice yesterday. Both you and Mr Morison are 38 very experienced counsel and he is pursuing some line. I am 39 presuming that it does have some relevance. There will 40 come a point, perhaps, where you can point out that he is 41 not hitting the target, but I do not think we have got to 42 that point yet. 43 44 MR DOCKING: If it please the Commission. 45 46 THE COMMISSIONER: Yes, Mr Morison. 47


1 MR MORISON: Thank you. 2 3 Q. Sir, there is no record kept of the complaints made, 4 we have established that, haven't we? 5 A. We have established that, yes. 6 7 Q. So, apart from contemplation, how much contemplation 8 do you think you would need to work out the answer? 9 A. One has just come to mind now. I actually got one 10 just before we left for Canberra from someone who rang up, 11 it was a Denham Construction site. 12 13 Q. A what, sorry? 14 A. A Denham Construction site and it was in Austral. 15 16 Q. And he named himself? 17 A. He didn't name himself, no. 18 19 Q. He didn't? 20 A. No. He said, "I'm not a member of the Union." 21 22 Q. I see. So he rang up anonymously and said, "I'm not 23 a Union member but I've got a complaint"? 24 A. Yes. 25 26 Q. That's a load of nonsense. 27 A. No, it's not, and I reject what you just said and I 28 find it highly offensive. 29 30 Q. So you have all these anonymous complaints of which no 31 records are kept; correct? 32 A. That's beyond my control, Mr Morison. 33 34 Q. We have what you have indicated as the post-it notes 35 for why you went down to Sydney to look at some sites, 36 correct? As Mr Stoljar asked you, before you left to go to 37 Canberra, there was absolutely no reason whatsoever why you 38 could not have called each of those four contractors, 39 principal contractors, to tell them that there was imminent 40 risk to their workers because of safety concerns; 41 absolutely no reason at all why you couldn't have called 42 them, is there? 43 A. And what would that have demonstrated, Mr Morison? 44 45 Q. I didn't ask you that. What is the reason, name one 46 reason, why you couldn't have called them to alert them to 47 the fact there was imminent danger to the workers on their


1 sites? 2 A. Well, I can recall from memory the people who have 3 rang up builders and told them there are safety issues on 4 their site, they claim to have fixed it and it doesn't get 5 fixed. 6 7 Q. No, no. See, what would stop you, sir, from ringing 8 them up and telling them, "Look, I'm in Canberra, I'm 9 coming down" - sorry, "I'm in Sydney, I've got to come down 10 to Canberra, it is going to take me a few hours to get down 11 there, I've got a few sites to see. I may not be able to 12 get there in the next 24 hours, but I don't want someone to 13 be killed. I don't want someone to die on site", because 14 that is what you are concerned about, isn't it? 15 A. Absolutely. 16 17 Q. Right. So you ring them up and you say, "Look, I am 18 gong to come and check on this in the next 48 hours. I am 19 going down to be in Canberra, so just - you better fix 20 these things up. I've got a list here on my post it notes 21 in front of me", one, two, three, four, maybe even five, or 22 something, "They are in front of me. I've got the 23 builder's name, I've got the complaint." I ring them up 24 and tell them, "I'm coming down to check on these things in 25 the next 48 hours", what would stop you from doing that? 26 A. Well, for one, how can I guarantee that there's no 27 victimisation from freedom of association? How can I 28 guarantee -- 29 30 Q. Hang on, hang on, hang on. Just stop there. What did 31 you just say? How would you -- 32 A. Victimisation of freedom of association -- 33 34 Q. So what does that mean? 35 A. -- so that's section 210 under the Fair Work Act. So 36 you tell me -- 37 38 THE COMMISSIONER: Mr Morison -- 39 40 THE WITNESS: Can I answer the question? Sorry, 41 Commissioner. 42 43 THE COMMISSIONER: -- just let Mr Poskus finish. This is 44 very interesting but -- 45 46 THE WITNESS: You've asked me the question -- 47


1 MR MORISON: Q. Okay. All right. 2 A. Right? I am answering it to you. 3 4 Q. All right. Off you go. 5 A. I'm answering it to you. 6 7 Q. Off you go. 8 A. One of the reasons why I wouldn't do that is how can 9 I guarantee the safety or the status of employment of our 10 members? Now, a lot of the time when people raise these 11 concerns, the members, or the applicable plumbing company 12 on site are suddenly victimised. Now, I need to protect 13 the people also from freedom of association from 14 victimisation. 15 16 Q. So that's the reason you don't ring? 17 A. That would be one of the reasons I wouldn't do it. 18 19 Q. Because you think the principal contractor is going to 20 kill the worker anyway? 21 22 MR DOCKING: I object to that. 23 24 MR MORISON: I withdraw that. 25 26 Q. You think the principal contractor is going to get 27 upset at his workers; is that right? 28 A. There's another reason, but I wouldn't do it. 29 30 Q. Is that the reason you just outlined? 31 A. Sorry, did you just say I just lied? 32 33 THE COMMISSIONER: No, "Is" -- 34 35 MR MORISON: Q. Is that the reason you just outlined? 36 37 THE COMMISSIONER: -- "that the reason you just outlined." 38 39 THE WITNESS: Yes, that's one of the reasons, yes. 40 41 MR MORISON: Q. What's another? Tell me another reason? 42 A. How can I guarantee that the builder is taking it 43 seriously and going to rectify it. Where's the due 44 diligence? How do I know that it's being rectified? 45 46 Q. You are going down there to check on it. You are 47 going down there.


1 A. That is -- 2 3 Q. Because you were going down there. 4 A. If I went down there to check, how can I guarantee 5 that the builder is then going to go and do that. 6 7 Q. But if you are going to give him 24 or 48 hours to do 8 it, "I'll be there soon to check on it" -- 9 A. That is not a regular practice of mine. 10 11 Q. I am just trying to work out why you wouldn't do that? 12 A. I think I've just answered that. 13 14 Q. No, you haven't. 15 A. Yes, I did. One is to protect the members against 16 freedom of association. 17 18 Q. What is the other reason? 19 A. The other thing, how could I guarantee that they're 20 going to take me seriously or do what has been asked, or go 21 and have a look at what the suspected breach might be. 22 23 Q. Because you are going to be there as soon as possible 24 to check on it. 25 A. Mmm. 26 27 Q. Isn't that a way of verifying it? 28 A. So you're suggesting I should just take the builder's, 29 word that they're going to take this matter seriously? 30 31 Q. You are going to check on it. 32 A. Yes, I am. 33 34 Q. You're going to Canberra? 35 A. 100 per cent. 36 37 Q. How is that not due diligence to work out that they've 38 done the job? 39 A. Because I'm telling you now, if you're going to rely 40 on builders to self regulate, then you are highly mistaken. 41 42 Q. You see, you couldn't make it in time to all these 43 - you said you couldn't put these specific complaints in 44 any sort of order of priority because everything is as 45 important as everything else, and everything is significant 46 in terms of safety, so it took time to get to these sites. 47 Counsel Assisting has just been through it. You didn't get


1 to these sites. You had to put your bags in the hotel, you 2 had to get a car, all these important things you had to do 3 before you actually got to the site. 4 A. Mmm-hmm. 5 6 Q. So you had to get comfy in your bed and everything, 7 and then not the next day, right, but the day after because 8 - and I am just telling you - I'm asking you sir why -- 9 10 MR DOCKING: I object. 11 12 MR MORISON: Q. -- when you go down there -- 13 14 MR DOCKING: With great respect, it is like yesterday. 15 There are a few too many propositions rolled up. And can I 16 make this point: a lot of States in Australia and this 17 territory decided to go with the Harmonised Work Health and 18 Safety Act and Regulation. Those legislatures turn their 19 mind to the scheme that should apply to work, health and 20 safety entry, and that's why they decided no notice is 21 required. 22 23 THE COMMISSIONER: Yes. I think as to the latter point, 24 Mr Morison's angle of thinking is different. As to the 25 former point, you are quite correct. I think there were 26 too many questions in the question you were putting, 27 Mr Morison. 28 29 MR MORISON: Certainly. 30 31 MR DOCKING: Yes. And when the time comes in submissions, 32 I will be able to make good -- 33 34 THE COMMISSIONER: Yes, I am sure. I am sure. 35 36 MR DOCKING: It goes back to actually the Conciliation and 37 Arbitration Act, is it 1904, where it was decided that you 38 don't need to give notice. 39 40 THE COMMISSIONER: When Mr Deakin began to lead the 41 country off the rails, yes. Mr Morison? 42 43 MR MORISON: Thank you, Mr Commissioner. 44 45 Q. So, what I am suggesting, sir, is that you had the 46 opportunity to call them and then follow up by going - you 47 were going to Canberra, but you could have saved the


1 imminent risk to the worker, which is your priority, isn't 2 it? 3 A. Absolutely. 4 5 Q. That is your number one priority? 6 A. That is our priority. 7 8 Q. To remove the risk as soon as possible; correct? 9 A. That's correct. 10 11 Q. So, by making a phone call, you alert the builder 12 there's an issue and then you go down - drive down the next 13 day and check on it, and maybe he's fixed it. If he hasn't 14 fixed it, well, then, you've got every reason to be upset 15 at him, haven't you, but if he has fixed it, the worker is 16 safe, isn't that right? 17 A. That would be great if it was a fixed, yes. 18 19 Q. So that is not a process that you use -- 20 A. No, it's not. 21 22 Q. -- because you're worried that the worker will get 23 victimised; is that right? 24 A. That's one of the reasons, yes. 25 26 Q. So, when you go to the site, you know, 48 hours later, 27 without notifying the site that there's a problem, and you 28 walk on the site with your permit and your WorkSafe 29 problems, what do you think would happen then? Do you 30 think the builder would think that one of his workers has 31 notified you about a complaint? 32 A. I think he would, Mr Morison, but it also demonstrates 33 that their Union is going to follow up on their complaints 34 and maybe that would make the builder think twice about 35 engaging in that sort of conductivity. 36 37 Q. I see. Because your presence will be so powerful that 38 the builder will think, "Ooh, I better not victimise my 39 worker now for complaining about safety because he's got 40 the power of the Union behind him", is that it? 41 A. When you say my presence, I don't refer myself as some 42 superior being, no, but I'm a Union representative. 43 44 Q. Sir, it is absolute nonsense, what you are saying, 45 isn't it, absolute garbage? 46 A. It is not, Mr Morison, but, you're right, there is 47 nonsense being said here right now.


1 2 Q. You have said that you had a rectification book -- 3 A. Yes. 4 5 Q. -- that was your record of when you went to these 6 sites; correct? 7 A. That's correct. 8 9 Q. But that's been lost, hasn't it? 10 A. That is beyond my control also, Mr Morison. 11 12 Q. You losing something is beyond your control? 13 A. I did not lose it. 14 15 Q. Right. Who lost it then? 16 A. I do not know. That was left in the Canberra office, 17 and when Dan Hanford ceased employment, and everything that 18 was in that office was packed up and brought to Sydney, 19 that was not there. That is beyond my control. 20 21 Q. Did you ring up Dan and think he might have put it in 22 his little box when he left? 23 A. No. Dan handed his company phone in. We didn't have 24 Dan's number. 25 26 Q. You didn't have his number? 27 A. No. 28 29 Q. And you thought, "Well, I've got this record of my 30 safety because I have the carbon copy", these are the 31 worksheets, are they? 32 A. Work and safety notice. 33 34 Q. Work and safety notice. They are the things you fill 35 in when you are walking around the site, aren't they? 36 A. Not when you are walking around, no, Mr Morison. This 37 is what you give when you first enter the site. 38 39 Q. So it is supposed to be all filled out with the 40 complaints and what the issue is? 41 A. The suspected contravention, that's right. 42 43 Q. Everything on the front of it, before you get there? 44 A. That's right. There are some people that do fill them 45 out when they are doing walks. The Master Builders does 46 exactly the same thing. I've worked with Chris Schultz in 47 Sydney. He is a very diligent man. He does that, but,


1 yeah, I don't do that. 2 3 Q. So when you - but this book that you had - have you 4 got a book now? 5 A. I've got two actually. 6 7 Q. You've got two? Why do you have two? 8 A. Because one, I misplaced in the boot of my car, so it 9 was an urgent matter, I grabbed a new one from the office, 10 but I do have two. They're in my car in Sydney. 11 12 Q. But the one for the period we're talking about has 13 just gone missing? 14 A. That's correct. 15 16 Q. So we have no record whatsoever of any of the -- 17 A. That's correct. 18 19 Q. You have given us a certificate: Entry Permit Holder 20 Training Course? 21 A. If that's my training, yes, I'd say - I don't have the 22 copy in front of me. I don't know what you're looking at. 23 24 Q. You fulfilled all the requirements. So that was a day 25 course, was it? 26 A. Yes. If you are referring to the safety entry 27 permit -- 28 29 Q. It is called the WorkCover Entry Permit Holder 30 Training Course? 31 A. Yes, that was a day course. 32 33 Q. That is a one day course? 34 A. That's correct. 35 36 Q. And during that course you do some safety -- 37 A. Identify risk assessments, yes. 38 39 Q. What do you do? 40 A. Would you like me to demonstrate it now, Mr Morison? 41 42 Q. Sir, I'll ask the questions. What do you do during 43 that course over a day? 44 A. Okay. Basically they go through the framework of the 45 Act. So you have due diligence, you have offices, PCBUs, 46 they go through the terminology because a lot of it has 47 changed from the old terminology. PCBU now is one of them,


1 office, there is duty holders. It goes through the proper 2 risk assessment, the hierarchy of controls for managing 3 your risks that are on site. 4 5 Q. So, in that course, you are looking at identifying, 6 are you, issues? 7 A. They give you an example of how to properly conduct 8 a risk assessment. 9 10 Q. Right. Okay. And that covers any form of 11 construction, does it? 12 A. Sorry? 13 14 Q. It covers any form of construction? 15 A. Risk assessments -- 16 17 Q. Yes. 18 A. -- cover any workplace. 19 20 Q. So it doesn't matter if it is plumbing work, or any 21 other - scaffolding, whatever it might be, you are looking 22 at all aspects of construction; is that right? 23 A. A risk assessment can be conducted at any workplace. 24 So it is teaching you the ideology behind it of how you 25 make this correct assessment and what's known as the 26 objective test; so what someone with the state of knowledge 27 ought to know, or reasonably ought to know, what they would 28 do in your situation, yeah, that's called the objective 29 test. 30 31 Q. You are taught in that test, aren't you, that you must 32 act immediately that you get notified of a safety issue and 33 make sure that it's rectified as soon as possible; correct? 34 A. I'm not sure if that's in the criteria; you would have 35 to show me, Mr Morison. 36 37 Q. You are not told that? 38 A. I can't remember. 39 40 Q. You can't remember? 41 A. No, I can't remember. 42 43 Q. You have no idea of how long you should wait before 44 you deal with a safety issue? 45 A. I don't know if that's in the criteria, if you're 46 saying that, I can only take your word for it. If I could 47 be shown it, please, that would be great.


1 2 Q. You are not educated that safety issues need to be 3 dealt with straight away? 4 A. Well, hang on, I take offence at that. You just said 5 I'm not educated. 6 7 THE COMMISSIONER: Q. No. No. What he said was you are 8 not educated, in effect, to ensure that safety issues are 9 dealt with? 10 A. If you're saying that that is in the criteria they 11 teach, I'm not sure, Mr Morison. 12 13 MR MORISON: Q. I'm not saying it's in anything. I'm 14 just asking you -- 15 A. You did. 16 17 Q. Sir, look, I am asking you what - I would have thought 18 that safety has to be dealt with immediately? 19 A. Safety needs to be taken very seriously, of course. 20 21 Q. It has to be taken seriously -- 22 A. Serious and immediate -- 23 24 Q. Sir, listen. I am not talking about the ideology of 25 safety, I am talking about the practical reality of it? 26 A. Is there any need for these theatrics? Honestly. I am 27 trying to answer the questions true and honestly to the 28 best I can. 29 30 Q. Are there any different levels of safety? 31 A. I'm sorry, "levels", what do you mean, Mr Morison? 32 33 Q. Can you have a minor safety issue? 34 A. A minor safety issue? 35 36 Q. Yes. 37 A. I think if you look in the Act and the regs, it's 38 categorised as Category 1, Category 2; there is no such as 39 minor safety issue. 40 41 Q. So Category 1 is more significant than a Category 2, 42 or the other way around? 43 A. Category 1, when they're talking about actioning out, 44 is what the safety committees do on site - Category 1, and 45 don't quote me word for word, please, if someone would give 46 me the Act, that's fine, but Category 1 basically results 47 in death if it's not fixed, it needs to be fixed


1 immediately. Then it goes to Category 2 where you might 2 have the day to fix it. Category 3, you might have the 3 week, but I don't think there's any relation to the word 4 "minor" in the Act, to be honest, unless you can show me. 5 6 Q. When you go around to these sites, do you take the Act 7 with you to work out what category it is? 8 A. I don't need to bring that up. That is described for 9 safety committees when they're carrying out their work when 10 site inspections are done and what level of seriousness 11 they need to put to that task. 12 13 Q. Site mapping is another bogus reason why you go on to 14 sites to put pressure on non-EBA members, isn't it? 15 A. It's not a bogus reason, no. 16 17 Q. Just tell me this: you say site mapping is to update 18 the register to work out who the subcontractors are on 19 a site; correct? 20 A. I said - you are taking some of that out of context. 21 I said when I was in Canberra I was going around updating 22 records. Site mapping in general does not mean updating. 23 You are talking about two different things. When I was in 24 Canberra I was updating the records that time had lapsed 25 between when Mr Kirkwood left; that is updating. 26 27 Q. Oh, updating. The site register sheets that you have 28 there are updates from Mr Kirkwood? 29 A. They would have been either updates or new projects, 30 as I have stated. 31 32 Q. And what stops you from ringing the principal 33 contractor on-site and asking them, "Are these the 34 contractors you've got? Just give us an update if anything 35 has changed"? 36 A. What stops me, I've never approached a site and 37 normally builders can tell the Union a mile away, you're 38 always nearly approached by someone at the gate or someone 39 comes up to you where you're walking in. 40 41 Q. What? 42 A. Sorry? Do you want me to repeat the question? 43 44 Q. I am asking you why you can't - I mean, it must 45 take - I mean, you are driving around all these different 46 sites just to sort of go in and make sure that 47 Mr Kirkwood's record of who he's contacting on the site is


1 the same as what you've got on his record; that's what you 2 were doing, wasn't it? 3 A. I was going around and updating and doing new projects 4 as well, that's right, site mapping. 5 6 Q. Why can't you just ring up the principal contractor 7 and ask them and not drive around and waste petrol; why 8 can't you do that? 9 A. Why can't you just ring them up? Well, for one they 10 may not answer their phone call, so that's one. 11 12 Q. Yes, but why -- 13 A. No, you're asking, I'm giving you an answer, all 14 right? So one, they may not answer their phone call; two, 15 they may not tell you the truth, but three, it's good and 16 it's common practice that if you've got something to say to 17 someone, you should at least meet them and look them in the 18 eye and that's the sort of person they are that you are 19 dealing with. For all I know, I could ring someone up who 20 looks like a thug and I don't want to go anywhere near that 21 site or deal with that person and that's ridiculous. 22 23 Q. You want to size them up, do you? 24 A. No, I do not want to size them up. Don't take what 25 I said out of context. I said there is another reason and 26 some people just look like the people that you don't want 27 to deal with, so you wouldn't go there anyway. You need to 28 meet people face to face, meet and greet, exchange your 29 cards; that's how business is done. 30 31 Q. What business? 32 A. What do you mean "what business"? Any business of any 33 organisation. Anyone who meets someone for the first time, 34 they meet them face to face, they swap contact details, 35 they say "hello", they introduce themselves. 36 37 Q. You are going around to the site to size up who the 38 contractors are that are on-site? 39 A. No, not size up. Did I say that at any time? I never 40 used that words "size up". 41 42 Q. What on earth are you doing there? 43 A. What are we doing? 44 45 Q. Yes. 46 A. Filling out a site register sheet. 47


1 Q. You say you need to do that in person because the 2 builder might lie to you about who the subcontractor is? 3 A. He may not be able to get through. Sometimes the 4 contacts displayed outside the job, which is also 5 a regulatory requirement by law, are not even the contact 6 of the person that's on-site; it's a 24-hour emergency 7 contact. 8 9 Q. Why can't you email them or text them? 10 A. I'm sorry, no builder has their email address, or the 11 site or project manager's email address outside the 12 project. 13 14 Q. No, no, but you know -- 15 A. You just told me why don't I email. 16 17 Q. You know who the - before you went to these sites, you 18 had a record from Mr Kirkwood? 19 A. I did, of jobs -- 20 21 Q. Hang on a second. 22 A. -- of jobs that were still going; that's a new 23 project. 24 25 Q. You had a record already, for example, in relation to 26 where Mr Hooper was working and that's why you didn't do 27 a site register sheet because it was exactly the same 28 information; correct? 29 A. Sorry, you will have to repeat that, Mr Morison. 30 31 Q. You didn't do a site register sheet -- 32 A. I didn't do one, no, not while I was there, no. 33 34 Q. Because Mr Kirkwood's information was accurate; 35 correct? 36 A. Well, it must be; I never did one. 37 38 Q. So therefore, what would stop you from ringing up and 39 checking whether that was the same information rather than 40 going there in the first place? What stops you from doing 41 that? 42 A. What stops me? Nothing. But I like to deal with 43 people on a face-to-face basis. 44 45 Q. It is because you want to go down there, you like 46 going down there? 47 A. No, I hate going there; I don't like going down there


1 because a lot of the time - what do you mean, mate? 2 I don't like walking on jobs and talking to people. I'd 3 rather be doing safety; that's what I'm good at and that's 4 what I am supposed to be doing. The only time I'm doing 5 this site mapping, I hate it. 6 7 Q. You hate it. So why didn't you just ring them up? 8 A. Why didn't I just ring up? And what if it's a new 9 project? I don't have that contact number. 10 11 Q. Well, maybe that's the reason you go to -- 12 A. Like I said, sometimes the number displayed on the 13 site which has to be there is not even the person that's 14 on-site. I've been to jobs and rang up the number and it's 15 a different project manager on another site that's answered 16 the phone and told me, "No, I'm not on that project." 17 18 Q. Can you remind us why you care who is on the project? 19 A. Why I care who is on the project? What do you mean? 20 Who? Are you talking about site management? Are you 21 talking about subcontractors? 22 23 Q. What does it matter to you who the subcontractor is? 24 A. Well, it doesn't. 25 26 Q. Right. So why do you have to do site mapping then? 27 A. Why do you have to do site mapping? You've got no 28 idea why you'd have to do site mapping? 29 30 Q. I'm asking you, sir. 31 A. So we know where jobs are, for one, right, who the 32 builder is -- 33 34 Q. Right. 35 A. -- practical completion dates and a lot of that is 36 very important because sometimes we'll get - calls will 37 come through to the office, say, and a person claims 38 they've worked for a company for three months and no super. 39 You ring up the employer and he says, 'Oh, that's crap. We 40 haven't had any work." "Well then, someone has filled out 41 a site register sheet that your company was actually on 42 that job and you just lied, so you do have to backpay that 43 super"; so that's another reason. 44 45 Q. You are just making all this up as you're going along? 46 A. I'm not making that up at all. 47


1 Q. Do you have meetings with the other Union officials 2 about how you are going to answer these questions? 3 A. Did I have meeting with other Union officials? 4 5 Q. Did you have meetings to work out -- 6 A. No, we did not, no. No. No. 7 8 Q. Do you have meetings to work out, "Look, we've got to, 9 you know, hit that place for safety"? 10 A. No. 11 12 Q. You don't have meetings? 13 A. No, I'm sorry, mate, I did not have meetings with 14 anyone else. 15 16 Q. Have you ever heard an expression "belt the site"? 17 A. No, I've never heard that expression. 18 19 Q. Never heard it? 20 A. No. 21 22 Q. Because that's what you and Theo came down to do, 23 isn't it? 24 A. No, it is not. 25 26 Q. Is Theo still working for you? 27 A. He doesn't work for me; Theo works for the Union. 28 29 Q. You don't work for the Union any more, do you? 30 A. No, you just said that "Theo works for you." He does 31 not, he works for the Union. 32 33 Q. He works for the Union? 34 A. That's right. 35 36 Q. He came down with you, didn't he? 37 A. The last time I came down to Canberra, yeah, he did. 38 39 Q. And was he going around with you to these sites? What 40 was he doing? 41 A. That time we come down, I can't remember the name of 42 the rally, it was either the Budget Buster or the May Day 43 Rally and we had to come down to give Matty a hand. A lot 44 of the projects were shutting at lunchtime or the blokes 45 were leaving and our job was to be out the front of the 46 jobs and tell blokes, "There's buses available if you want 47 to go to the valley." It saved people going to the pub or


1 not showing up. 2 3 Q. So you met up with Matt McCann; is that right? 4 A. Yes, that's right. 5 6 Q. You were just belting around? 7 A. I did no belting around. 8 9 Q. Why not? 10 A. What's belting? Can you tell me what belting is and 11 maybe I can tell you whether I've done it or not. 12 13 Q. Maybe I've never heard that expression. 14 A. No. 15 16 Q. You haven't been listening to any of the evidence? 17 A. I heard yesterday that belting was brought up. I know 18 what you are suggesting it means. I never used that term 19 and it has never been used to me. 20 21 Q. What about what Mr McCann said - do you remember what 22 he said? 23 A. No. You'll have to refresh my memory. 24 25 Q. You haven't been told by -- 26 A. No, you'll have to refresh my memory, please. 27 28 Q. Dave Broadley didn't have a conversation with you to 29 say that, "Belting around is going to be raised and the go 30 is that we're going to say it's running around between 31 sites"? 32 A. No, there was no conversation like that. 33 34 Q. There wasn't? 35 A. No. 36 37 Q. You haven't heard any evidence from Mr McCann. Have 38 you looked at his transcript of evidence? 39 A. No, I have not. 40 41 Q. You haven't spoken to Mr Broadley about it? 42 A. No. 43 44 Q. It hasn't been raised with you what "belting around" 45 is, "belting the sites"? 46 A. No. 47


1 Q. But you did watch Mr Broadley's evidence? 2 A. I heard yesterday, yes. 3 4 Q. And what was raised in the evidence that you heard? 5 A. I heard you ask him about "belting" and what you were 6 suggesting it means, but apart from that, I have never 7 heard that term used before until you brought it up. 8 9 Q. You know that he raised in his own evidence as well 10 that he had been watching Mr McCann's evidence and that he 11 understood that Mr McCann said that it means running 12 quickly between the sites? 13 A. If that's what the person who says that he used that 14 term, what it means, then that's what it must mean, but 15 I don't know. 16 17 Q. Mr McCann never used it with you? 18 A. No. 19 20 Q. And it's not an industry - it's an extraordinarily 21 unusual expression, though, isn't it? 22 A. Belting? 23 24 Q. "Belting the sites"? 25 A. I've never heard that term "belting the sites". I can 26 only think of one thing "belting", but I don't want to 27 raise it here, it's probably improper. 28 29 Q. It sounds like hitting, doesn't it? 30 A. Not at all. 31 32 Q. What do you think it means? 33 A. "Belting" means a number of things. For example, when 34 the concreters on-site are pouring the round columns, they 35 belt the tubes so they don't blow out. I've heard that 36 term used before, but not the way you're -- 37 38 Q. Is there any other "belting" you can think of? 39 A. No. 40 41 THE COMMISSIONER: Mr Morison, I have just been watching 42 the court reporter. It is not just Mr Poskus that is 43 putting them under pressure. 44 45 THE WITNESS: Sorry. 46 47 THE COMMISSIONER: You have to bear in mind they work


1 quite long hours and it is very stressful. We will have to 2 consider more adjournments. I am not criticising either 3 Mr Morison or you, Mr Poskus, but it is just a fact. You 4 both get very excited. It is good to see people interested 5 in what they are talking about, but it is very hard on 6 them. 7 8 THE WITNESS: I am sorry, I apologise. You guys work hard 9 enough as it is. 10 11 MR MORISON: Q. We've got something to do with 12 concreting; that rings a bell with you with "belting"; is 13 that right? 14 A. Yes. 15 16 Q. Anything else that you can think of where "belting" 17 rings a bell? 18 A. There is but I don't think you want me to bring it up. 19 I would think it's improper. Commissioner, I don't know, 20 it's a bit lewd, so I don't want to say it. It's got 21 nothing related to construction. I have heard people use 22 the term "belting" before, but not the way you're 23 suggesting. 24 25 Q. What, like some sort of sexual act? 26 A. No, like someone "belting off", if you want to know. 27 28 Q. Okay. 29 A. That's the only time I've ever heard it, I'm sorry. 30 31 Q. So the idea of "belting the sites", moving between the 32 sites, it just sounds like a load of nonsense, doesn't it? 33 A. Look, I don't know, I don't refer to it as that and I 34 didn't say that's what it means and I don't know. 35 36 Q. You don't refer to it as anything, do you? 37 A. Belting? I think I've just told you -- 38 39 Q. No, "belting the sites"? 40 A. No, "belting the sites", I don't know what that means. 41 42 Q. It doesn't mean anything to you, does it? 43 A. To me it doesn't mean nothing. 44 45 Q. Does it even ring true to you that you'd say, "I was 46 moving quickly between the sites, I was belting the sites"; 47 it sounds like nonsense, doesn't it?


1 A. I don't know. I don't use that terminology. You're 2 asking the wrong person. You should ask the person who 3 said it. 4 5 Q. So you just want to deflect that question? 6 A. I don't want to deflect it, I don't use it, so how can 7 I be asked to say what I think it means when it's not 8 a term that I use. 9 10 THE COMMISSIONER: Mr Morison, I think we have probably 11 squeezed this subject dry. 12 13 MR MORISON: Q. I just suggest to you, sir, that this 14 going and doing a site mapping, going on bogus safety 15 visits, is just another big waste of time and an excuse to 16 go belting around to sites to squeeze people that haven't 17 signed EBAs? 18 19 MR DOCKING: I object. I have lost count of the number of 20 propositions in there. I object on that basis. In 21 addition, he's asking the witness to use an expression 22 which repeatedly and repetitively he said he has never used 23 and doesn't attribute that meaning to it. 24 25 THE COMMISSIONER: I am going to allow the question. 26 I could give a long explanation for that conclusion but 27 I think it is probably best not to. 28 29 MR DOCKING: Thank you. 30 31 THE COMMISSIONER: There is some merit in what you are 32 submitting but I think there are other factors. Do you 33 remember that question or would you like to have it read 34 out again? 35 36 THE WITNESS: Commissioner, correct me if I'm wrong, but 37 have I ever used that term "belting jobs"? No. 38 39 MR MORISON: Q. I am just trying to find the question. 40 Site mapping, going on bogus safety visits, turning up, 41 meeting people on sites, they're all excuses to go belting 42 around sites? 43 A. Incorrect. 44 45 Q. In other words, I'm suggesting to squeeze people, 46 contractors on-site, to sign EBAs? 47 A. No.


1 2 Q. And become compliant with the unions; that's correct? 3 A. Incorrect. No, that's incorrect. 4 5 MR MORISON: I have nothing further. 6 7 THE COMMISSIONER: Thank you, Mr Morison. Mr Docking? 8 9 <EXAMINATION BY MR DOCKING: 10 11 MR DOCKING: Q. Have you ever heard Mr Broadley use the 12 expression Mr Morison asked you about "belting the sites"? 13 A. No, I've never heard him use it, no. 14 15 Q. You did evidence that you recall coming down to 16 Canberra for either "Bust the Budget" or May Day. Can you 17 explain why a trade union organises buses and waits outside 18 sites to encourage its workers to go to that type of rally? 19 A. Yes, it's because all of those rallies are important. 20 We want to have the maximum capacity of attendance that we 21 can and it's important for the members to go to that rally 22 and show their support about what is happening in their 23 industry. 24 25 Q. Do you recall coming down for that purpose with Theo 26 and meeting Mr McCann? 27 A. Yes, Mr Docking, I do. 28 29 Q. Between that time and until this week when you came to 30 Canberra for the Trade Union Royal Commission, have you 31 been back on CEPU Plumbing business to the ACT? 32 A. No, Mr Docking, I haven't. 33 34 Q. When Mr Stoljar was asking you questions, you said you 35 did a HRS course? 36 A. HSR training, yes. 37 38 Q. Can you just explain what that involves? 39 A. Health and Safety Representative Training, it's just 40 basically - it's more the same thing, so identifying safety 41 issues, how you deal with them, the correct framework of 42 the Act. It's more of an extended course of what the 43 requirements are under section 133. 44 45 Q. And you referred to another course, I think it was 46 WHS? 47 A. They call it a gap course, so when the legislation

.24/07/2015 CFMEU ACT 1066 L R POSKUS (Mr Docking) Transcript produced by DTI

1 changed they gave you a period of time where you had to do 2 this gap course to come up with current legislation. 3 4 Q. Is that the change from the Occupational Health and 5 Safety Act -- 6 A. That's correct. 7 8 Q. -- to the Work Health and Safety Act? 9 A. That's right. 10 11 Q. I think you took into the witness box your various 12 permits. 13 A. Yes, I've got them here. 14 15 Q. Can you just explain, did you have those in the same 16 format displayed in the same way when you went on sites in 17 the ACT in 2013? 18 A. Exactly the same, Mr Docking, except the ACT Canberra 19 one would have been in front 20 21 Q. Why would that be, sir? 22 A. Because I'm in the ACT performing safety. 23 24 Q. You were asked by Counsel Assisting about your 25 conversation with Mr Hooper. 26 A. Mmm-hmm. 27 28 Q. Might the witness be shown Hooper MFI-5. Are you 29 happy to look at that on the screen? 30 A. Yeah, that's fine, that's fine. 31 32 Q. It's now displayed on the screen. Is that a copy of 33 your mobile telephone records? 34 A. That's correct, Mr Docking. 35 36 Q. Who put the green line there? 37 A. I did, I put it there, Mr Docking. 38 39 Q. And is that the date and time and duration of calls 40 you say you had with Mr Hooper? 41 A. That's correct. That's the first time I spoke to 42 Mr Hooper. 43 44 Q. A number of times you talked about the carbon copy? 45 A. Mmm-hmm. 46 47 Q. Might the witness next be shown Beaumont MFI-3. Tell


1 me when that has come up on your screen? 2 A. Yes, I've got it there. 3 4 Q. Is the document headed "Work Health and Safety Notice" 5 the carbon copy document to which you referred? 6 A. Yes, it is. 7 8 Q. Is that the one where you said, in slang, that 9 sometimes you refer to it as a Rectification Notice? 10 A. Sometimes I do. That's not right, it is not 11 a Rectification Notice, but some people in the industry 12 commonly refer to that as a Rectification Notice, yes. 13 14 Q. And for the safety visits you undertook back in 2013, 15 as I understand your evidence, you did fill out these work 16 health and safety notices when they were for suspected 17 contraventions? 18 A. Absolutely, yes. 19 20 Q. So on the completed document given to the employer, it 21 would have had the various relevant details or particulars 22 filled out? 23 A. I would have ticked the boxes applicable and then 24 written down underneath what Australian Standard 25 guidelines, regs or Act I'm referring to. 26 27 Q. I then want to ask you about another type of record, 28 the site register records. In your second statement 29 tendered by Counsel Assisting you explain - I will withdraw 30 that. I will take you to your first statement, the very 31 last page. It is one on which there are no initials of 32 yours, the top left-hand corner. 33 A. Yes. 34 35 Q. Or no tick or stroke on the right-hand side. Tell me 36 when you have found that? 37 A. Yes, I've got it here. 38 39 Q. Do you know who filled in that sheet which doesn't 40 have either your initials or the stroke or tick? 41 A. It definitely wasn't me. I believe that that was 42 Dan Hanford that filled that out. 43 44 Q. And is it the case when the annexures were put 45 together, it was done remotely, so to speak, by your 46 solicitors when you were not present? 47 A. That's correct.


1 2 Q. On a number of occasions, for either Mr Morison or 3 Counsel Assisting, you explained when you had suspicions 4 about there being contraventions under the Work Health and 5 Safety Act, you would not in advance put the employer on 6 notice. To Mr Morison you said, for example, "If you 7 believe builders would self-regulate, you are highly 8 mistaken." Can you explain why you said that? 9 A. Because it has been demonstrated in the past that if 10 we solely and wholly rely on the PCBs to self-regulate, 11 they have failed miserably and history records that. 12 13 Q. On another occasion you said to Mr Stoljar, 14 "Absolutely not, I wouldn't tell them", and on another 15 occasion that it would defeat the purpose of your visit. 16 Can you explain, in your experience, why you believed it 17 would defeat the purpose of your visit? 18 A. Well, for one, one example, Mr Docking, if you were to 19 raise that the issue remotely, first of all, you have no 20 guarantee that it's going to be rectified and, second of 21 all, you don't know when they're going to do it or when 22 that rectification could be carried out. And another 23 thing, they may not even be aware of what you're saying. 24 When I say "aware", I mean they may not know what you are 25 referring to, what legislation or Australian Standard that 26 they should know, their state of knowledge. 27 28 Q. I then want to go to a matter which arose during the 29 oral evidence after your two statements were provided to 30 the Royal Commission. Do you remember instructions were 31 sought from you about the evidence of Mr Beaumont and his 32 evidence that you identified a power box that had some 33 holes in the back panel? 34 A. The electrical boards, yes. 35 36 Q. Can you explain to the Commission when you observed 37 that problem, where you were, who was present? 38 A. Right. So that was just after Mr Hooper was coming 39 down the stairs with the site management and right out the 40 front of the site sheds where we were standing, there was 41 the main distribution board for the site. 42 43 Q. And what did you see? 44 A. There was holes where you could stick your fingers 45 straight through and make contact with the energised 46 circuits at the back, make contact, yes. 47


1 Q. Do you accept the suggestion of Mr Beaumont they were 2 pen-sized holes? 3 A. No, that's incorrect. They were big enough to stick 4 a finger through. 5 6 Q. And in your attachments have you got reference to the 7 relevant Australian Standard, why you raised that matter? 8 A. Yes, I have. 9 10 Q. Could you have a look at the -- 11 A. Sorry, did you want me to look at the document? 12 13 Q. Yes. 14 A. Sorry. 15 16 MR DOCKING: Unless there is no issue about this. 17 18 THE COMMISSIONER: I think we are talking about the words, 19 "Energised (live) parts must be effectively protected at 20 all times against contact by workers." 21 22 THE WITNESS: That's correct. 23 24 THE COMMISSIONER: To which we have been several times 25 before. 26 27 THE WITNESS: That's correct yes. 28 29 MR DOCKING: Thank you, Commissioner. 30 31 Q. The terms of reference have been provided for one of 32 those committees. Can you explain who you represent on 33 that committee? 34 A. I have been elected on that committee through 35 Unions NSW and I represent the plumbers, obviously. 36 37 Q. I understand there are other committees you're on as 38 well. Are you on something called the New South Wales Peak 39 Union Asbestos Liaison Committee? 40 A. That's correct, yeah, that's correct. 41 42 Q. In really brief terms, can you explain what that 43 involves? 44 A. That involves a lot of the unions and this all arose 45 out of the level of exposure of the asbestos in some of the 46 hospitals that we had and the management plan of what 47 they're going to do to, over time, eradicate this and fix


1 the problems; that's how that came about. 2 3 Q. What role do you have on that? 4 A. It's the same thing, it's just a consultative 5 committee. We sit down. We put ideas to each other. 6 Someone will come up with a draft document how they might 7 best compose an asbestos management plan, draft letters for 8 when people have been exposed, where people would have - 9 PCBUs would have to cite it, saying, "Yes, while you here 10 on a job under my control, you were exposed to asbestos", 11 things like that. 12 13 Q. Are you also on the Unions NSW Work Health and Safety 14 and Workers Compensation Committee? 15 A. That's right. 16 17 Q. In brief terms, what is your role on that committee? 18 A. We deal a lot with the Workers Health Centre, the 19 Injured Workers Network Support System, Workers Comp 20 legislation changes; basically, that's what it's about, 21 yeah. 22 23 Q. You were also asked by Mr Stoljar about going on to 24 a site where BLOC was the principal contractor. You 25 identified problems with the emergency lighting? 26 A. That's correct. 27 28 Q. Can you describe the state of the building or 29 structure at the time -- 30 A. It was -- 31 32 Q. -- as to why it was your concern? 33 A. About the emergency lighting? 34 35 Q. About the emergency lighting? 36 A. That job was nearly completed, Commissioner, so there 37 was very little ambient light, so the windows and facade 38 was all in. 39 40 Q. What's that got to do with plumbers? 41 A. What's that got to do with plumbers? Well, the 42 plumbers have the right to safe access off the job and 43 egress off the job if there's a power outage, in case of an 44 emergency. 45 46 MR DOCKING: Excuse me, Commissioner. 47


1 THE COMMISSIONER: Certainly. 2 3 MR DOCKING: Thank you. 4 5 THE COMMISSIONER: Yes, thank you, Mr Docking. Anything 6 further, Mr Stoljar? 7 8 MR STOLJAR: No, Commissioner. 9 10 THE COMMISSIONER: Mr Poskus can be excused? 11 12 MR STOLJAR: Yes, Commissioner? 13 14 THE COMMISSIONER: Yes. 15 16 Q. Mr Poskus, you came here on a summons. You are 17 excused from further attendance on that summons. 18 Thank you. 19 A. Thank you, Commissioner. Thank you. 20 21 Q. Thank you for taking the time to prepare your evidence 22 and give it. You can leave the witness box now. 23 A. Thank you very much. Thank you. 24 25 <THE WITNESS WITHDREW 26 27 MR STOLJAR: The next witness is Mr Kirkwood. 28 29 THE COMMISSIONER: We had better start him, at least. 30 Mr Agius, yes? 31 32 MR AGIUS: Could I raise a housekeeping matter? 33 34 THE COMMISSIONER: Yes. Just have a seat, Mr Kirkwood, 35 for a moment. 36 37 MR AGIUS: I understand that there is this witness and then 38 it was intended to call Mr Nikolic. We will be maybe half 39 an hour with Mr Nikolic. I also know my friend Mr Docking 40 is not otherwise required here next week. I am not sure 41 how long this witness will take in chief and 42 cross-examination. Is there anything to be served by our 43 remaining today? It seems likely that an hour and a half 44 will not be enough time to do both this witness and deal 45 with Mr Nikolic in chief and permit enough time for 46 Mr Docking to -- 47


1 THE COMMISSIONER: I think that is a very penetrating 2 question, if I may say so. Just one aspect of it, though. 3 You said Mr Docking will go away and not come back. That 4 rather depends on the position for Mr Hanford. Maybe 5 Mr Hanford is not to give oral evidence, I don't know. 6 7 MR STOLJAR: The issue of Mr Hanford is still being 8 considered, so I'll discuss that with Mr Docking. 9 10 THE COMMISSIONER: In effect, what Mr Agius is saying is, 11 "May he go away and may Mr Nikolic give evidence on 12 Monday?" 13 14 MR STOLJAR: Yes. There's no difficulty with that, 15 Commissioner, and Mr Nikolic is local, in Canberra, so it 16 won't, I assume, cause him any difficulty. 17 18 MR DOCKING: I have some questions of that witness. It 19 would be no longer than what Mr Agius indicated. 20 21 THE COMMISSIONER: Are you content for Mr Nikolic not to 22 be dealt with today? 23 24 MR DOCKING: If it was possible -- 25 26 THE COMMISSIONER: There is one factor, of course, in all 27 this. This is just an impression and it may be quite 28 untutored. I get the impression Mr Kirkwood is not all 29 that controversial a witness and may not be very long. 30 What do people think about that? 31 32 MR DOCKING: That is certainly my view. 33 34 MR STOLJAR: Yes, I think that is so, Mr Commissioner. 35 36 THE COMMISSIONER: What do we do? I am trying to please 37 everyone, but above all I am trying to please Mr Agius with 38 whom I am moving into a condition of consensus, perhaps too 39 much. 40 41 MR STOLJAR: I don't think there's any difficulty with 42 putting off Mr Nikolic till Monday. Mr Morison, of course, 43 appears for Mr Nikolic, so he may be able to tell us a bit 44 more about that. 45 46 MR MORISON: I will just get some instructions about that. 47 I would think that there is every likelihood, if he does


1 start today, he will be part-heard, that is the other 2 difficulty. It might be better just to make him Monday 3 anyway because he is local. 4 5 THE COMMISSIONER: My present inclination is, unless 6 Mr Nikolic gives you strong contrary instructions, that we 7 don't start him this afternoon. Mr Docking? 8 9 MR DOCKING: My clients would prefer, if it is 10 practicable, to avoid the expense of having me return and 11 a solicitor return on Monday. If Mr Kirkwood turns out not 12 to be controversial, I imagine Mr Nikolic would be dealt 13 with today. 14 15 THE COMMISSIONER: Under the French Monarchy they used to 16 carry out sentences of capital punishments by attaching 17 a wild horse to each limb of the convicted person. That's 18 the position I'm in right now. What do we do, Mr Stoljar? 19 20 MR STOLJAR: I am sorry, I had overlooked the issue that 21 I think Mr Docking is referring to, namely, there is some 22 very short evidence from Mr Nikolic about a conversation he 23 had with Mr McCann and Mr Docking may wish to be present 24 and ask Mr Nikolic some questions about that. So it's not 25 just Mr Nikolic's convenience, it is Mr Docking's. 26 27 I wonder if I could make this suggestion, 28 Commissioner, that we deal with Mr Kirkwood immediately 29 after lunch, and I think he will be fairly quick, then we 30 deal with Mr Nikolic and I'll deal first with this issue of 31 the conversation involving Mr McCann, then Mr Docking can 32 chart his own course about what he wants to do about that 33 and then he can go, if need be, and if need be, the rest of 34 Mr Nikolic could be deferred until Monday. 35 36 THE COMMISSIONER: When you say "if need be", you are 37 really saying it may be that Mr Agius can finish today but 38 if he can't finish today, Mr Nikolic comes back on Monday. 39 In one sense that is not a problem for Mr Agius because 40 he's got plenty of other reasons to be here next week. 41 42 MR STOLJAR: Yes. 43 44 THE COMMISSIONER: Mr Agius? 45 46 MR AGIUS: We would be happy with a situation where 47 Mr Nikolic was started by my friend and taken through and


1 then Mr Docking cross-examine and then we would do our 2 cross-examination on Monday morning. 3 4 THE COMMISSIONER: Yes. Mr Morison? 5 6 MR MORISON: I am in everyone's hands. Let's just see 7 what happens, I think, rather than have all these 8 speculations. Mr Nikolic would rather be dealt with in one 9 go rather than over the weekend, so I think that's the 10 fairer course, just to see how much time we've got. 11 12 THE COMMISSIONER: The proposition that we should just 13 wait and see what happens is always a sensible one. I am 14 sorry to keep you waiting so long, Mr Kirkwood. It is now 15 lunchtime. Shall we start with Mr Kirkwood immediately 16 after lunch? 17 18 MR STOLJAR: Yes, Commissioner. 19 20 THE COMMISSIONER: See you at 2pm, Mr Kirkwood, when the 21 hearing will resume. 22 23 LUNCHEON ADJOURNMENT 24 25 THE COMMISSIONER: Yes, Mr Stoljar? 26 27 MR STOLJAR: The next witness is Mr Kirkwood and he is 28 ready to be sworn. 29 30 <DAMIAN JAMES KIRKWOOD, affirmed: [2.00pm] 31 32 <EXAMINATION BY MR STOLJAR: 33 34 MR STOLJAR: Q. Your name is Damian James Kirkwood? 35 A. It is. 36 37 Q. You are a resident of the ACT? 38 A. I am. 39 40 Q. And you are currently employed by Comcare as a safety 41 inspector? 42 A. I am. 43 44 Q. You have prepared a statement in these proceedings 45 dated 17 July 2015? 46 A. I have. 47

.24/07/2015 CFMEU ACT 1075 D J KIRKWOOD (Mr Stoljar) Transcript produced by DTI

1 Q. Is the content of your statement true and correct? 2 A. It is. 3 4 MR STOLJAR: I ask that that be received into evidence, 5 Commissioner. 6 7 THE COMMISSIONER: Yes, it is received into evidence. 8 9 STATEMENT OF DAMIAN JAMES KIRKWOOD DATED 17/07/2015 10 11 MR STOLJAR: Q. Mr Kirkwood, you have also provided 12 Counsel Assisting with a bundle of certificates and the 13 like in relation to training that you have done? 14 A. They might have been held on record by the office 15 in - I personally had not given the -- 16 17 Q. I will just hand it to you and you can look over it. 18 A. (Shown to witness) 19 20 MR STOLJAR: I will provide you with a copy, Commissioner. 21 22 THE COMMISSIONER: Thank you. 23 24 MR STOLJAR: Q. You did an OH&S representative's course 25 in 2007? 26 A. I did. 27 28 Q. And you did a Federal Right of Entry training - that's 29 the ACTU organised one, in 2010 it looks like? 30 A. Yes, that's correct. 31 32 Q. And a WorkCover entry permit holder training course in 33 2012? 34 A. That's right. 35 36 MR STOLJAR: I ask that those three documents be received 37 into evidence, Commissioner. 38 39 THE COMMISSIONER: They will be Kirkwood MFI-1. 40 41 KIRKWOOD MFI-1 BUNDLE OF CERTIFICATES RE TRAINING 42 UNDERTAKEN BY MR KIRKWOOD 43 44 MR STOLJAR: Q. Mr Kirkwood, you were employed as the 45 ACT Branch Secretary. How long were you there for? 46 A. Six-and-a-half years. 47


1 Q. From 2007 through to 2013? 2 A. Correct. 3 4 Q. Were there policies in place at the Branch at that 5 time about EBAs? 6 A. I don't understand what you mean by "policies". 7 8 Q. Did you have any written policies in place at the 9 Branch? 10 A. No. 11 12 Q. Nothing like that? 13 A. No. 14 15 Q. It wasn't a large branch, I take it? 16 A. No, it wasn't. 17 18 Q. How many other employees other than yourself? 19 A. None. I was the only employee. 20 21 Q. Did you work closely with the NSW Branch? 22 A. No. 23 24 Q. No? You were running your own show, really, down 25 here? 26 A. Correct. 27 28 Q. Was it your policy to try and get employers to sign up 29 to EBAs? 30 A. Yes. 31 32 Q. In paragraph 4 you say you resigned on or about 33 19 June 2013, so you actually stopped work on that day? 34 A. Correct. 35 36 Q. If I can just understand sort of where we are in the 37 sequence. You knew Jason Hooper from Advanced Plumbing, 38 I take it? 39 A. I'd met him twice. 40 41 Q. And when you left in June, the previous month 42 Dave Broadley had communicated to you that Mr Hooper didn't 43 want to sign an EBA? 44 A. Correct, on May 27th. 45 46 Q. And you'd been to the Antill site and the Easty Street 47 Project site --


1 A. On that day, yes. 2 3 Q. -- to try and talk to the members? 4 A. Correct. 5 6 Q. Or at least to talk to employees - and in the case of 7 the Antill Street Project, you actually did talk to 8 Tony Derouw and some of the employees? 9 A. Yes, there would have been six or seven guys I spoke 10 to. 11 12 Q. Did Mr Broadley say to you that he was going to try 13 and arrange a meeting with Mr Hooper about signing an EBA? 14 A. When? When? I don't understand what you mean. 15 16 Q. There's nothing difficult about that question, 17 is there? Well, I'll make the date then: on or after 18 27 May. Mr Broadley gave you instructions to go to the 19 Antill Street site and the Easty Street site, didn't he? 20 A. Correct. 21 22 Q. Did he say to you that he was going to try, or ask you 23 to try and arrange a meeting with Mr Hooper? 24 A. No. 25 26 Q. He never said anything like that? 27 A. Dave Broadley's instructions to me on 27 May were, "Go 28 out and see the boys and find out what's going on." That 29 was - that was the instruction. 30 31 Q. All right. You went off to Antill Street and you saw 32 Tony Derouw? 33 A. Correct. 34 35 Q. And you deal with that in paragraphs 19 and following 36 of your statement? 37 A. Yes, that's right. 38 39 Q. Just coming back to paragraph 4 -- 40 A. Sorry, did you say 4? 41 42 Q. Yes, paragraph 4. Is that the only conversation you 43 had with Mr Broadley about that matter, about the question 44 of Advanced Plumbing? 45 A. Correct. 46 47 Q. And did you take any other action in relation to


1 investigating why Advanced Plumbing wasn't signing an EBA? 2 A. On that day? 3 4 Q. At any time between 27 May and 19 June when you left. 5 I realise it's -- 6 A. No. 7 8 Q. You had these dealings on 27 May and it was really 9 only a few weeks later, two or three weeks later, that you 10 you left? 11 A. That's correct. 12 13 Q. Did you know that Luke Poskus was coming down in July 14 and was going to go and visit sites and the like? 15 A. No, I didn't. 16 17 Q. Did you have any discussion about that? 18 A. With who? 19 20 Q. With Luke or with Dave? 21 A. No. 22 23 Q. And you, I take it, ceased to have any involvement in 24 the CEPU as and from 19 June? 25 A. As a paid official, yes. I'm still a proud member and 26 a financial member of that Union. 27 28 Q. Okay, but you didn't have anything to do with the 29 visits to sites that took place in July 2013? 30 A. Correct. 31 32 Q. No-one spoke to you about that? 33 A. No. 34 35 Q. Can I take you to paragraph 7 of your statement. You 36 remember this meeting, do you? 37 A. Yes, I do. 38 39 Q. How did you know it was in the Plumb Cafe? 40 A. How did I know that it was in the 41 Plumb Street - because that's where it was. 42 43 Q. Did you remember that when you did your statement? 44 45 THE COMMISSIONER: Q. How do you remember it to be in 46 that location? 47 A. I Googled the address and I knew that there was


1 a cafe, I wasn't 100 per cent sure on what the name of the 2 cafe was in that - there's a precinct of shops in that 3 area, and I knew that there was a cafe at the front of it. 4 I wasn't 100 per cent sure of what the name of it was, so 5 I did Google what the name - I Googled that street and 6 I saw that it was Plumb Cafe and when I saw that name then 7 I realised that that's what the name of the cafe was. It 8 was in the carpark. We didn't go into the cafe. 9 10 MR STOLJAR: Q. Did Mr Broadley tell you about what the 11 name of the cafe was? 12 A. No. 13 14 Q. What did you Google? 15 A. I Googled the address in Fyshwick. 16 17 Q. How did you know the address? 18 A. Because I lived in Canberra for 22 years and I knew 19 where the meeting was held. 20 21 Q. You remembered the address but you didn't remember the 22 name of the cafe? 23 A. I remembered the name of the street that we had the 24 meeting in and I know the carpark that we had the meeting 25 in, but I didn't know the name of the cafe -- 26 27 Q. I'm sorry, please finish. 28 A. I didn't know what the name of the cafe was that 29 fronts the street. 30 31 Q. Is it still there? 32 A. I think so. Actually, I'm 100 per cent sure that it 33 is because I drove past it last Friday. 34 35 Q. Isn't this the position, Mr Kirkwood, that in that 36 conversation, Mr Broadley said to Mr Hooper, "We find 37 safety issues with plumbers that don't have an EBA"? Did 38 he say that? 39 A. No, he didn't. 40 41 Q. Just pausing there, that's something you do, isn't it, 42 find safety issues? 43 A. Not with companies that haven't got EBAs. 44 45 Q. Well -- 46 A. The question you asked me was do we find safety issues 47 with companies without EBAs. That's not correct.


1 2 Q. This is what Mr Broadley said, isn't it: 3 4 We find safety issues with plumbers that 5 don't have an EBA, go on site and cause 6 problems for the builder. 7 8 A. No, he did not say that. 9 10 Q. 11 We give the builders a list of people they 12 can use. 13 14 A. "We give the builders a list of" - sometimes builders 15 ask us. Sometimes we - I definitely always promoted 16 companies that did have Union EBAs. 17 18 Q. And you maintained a list of those companies, did you? 19 A. It wasn't very hard; there was only five. 20 21 Q. Is the answer to my question yes, you maintained 22 a list of those companies? 23 A. Not written, I don't think; I knew them. I don't 24 think I had a written list of Union EBA companies, no. 25 26 Q. You say: 27 28 I definitely always promoted companies that 29 did have Union EBAs. 30 31 A. Correct. 32 33 Q. You promoted them to builders? 34 A. If and when asked or given the opportunity pre-tender 35 or pre-approving of a contract, then yes. 36 37 Q. To your knowledge, did New South Wales maintain such 38 a list? 39 A. I don't know. 40 41 Q. Did Mr Broadley say, "We give the builders a list of 42 people they can use"? Did he say that at that meeting? 43 A. I don't believe so. 44 45 Q. Although in fact you say it is correct that you would 46 give builders if not a written list, you would, in any 47 event, tell builders people they can use?


1 A. I would promote and encourage builders to use 2 companies that had Union EBAs, yes. 3 4 Q. And that's because you wanted companies to have an 5 EBA? 6 A. Yes. 7 8 Q. Did that include, for example, provisions about the 9 use of ACIRT for redundancies? 10 A. Correct. 11 12 Q. What was the ACT Branch receiving, if anything, from 13 ACIRT in respect of fees or commissions or financial 14 returns? 15 A. Nothing. 16 17 Q. Nothing? 18 A. Nothing. 19 20 Q. What about the New South Wales -- 21 A. I can't answer that. 22 23 Q. How did it work? Where did the ACT Branch's funding 24 come from? 25 A. Federal, Melbourne. I was paid by our Federal 26 Melbourne office. 27 28 Q. So we would really have to go and look at their 29 accounts if we wanted to find out what might have been 30 coming back? 31 A. No. We had separate ACT accounts which were presented 32 at Management of Committee every month, which were approved 33 by the Management of Committee every month, and which 34 showed income and expenditure. 35 36 Q. Was part of your desire when you were ACT Branch 37 Secretary to get people to sign up to EBAs, a desire to 38 promote financial return for the Union? 39 A. No. 40 41 Q. It didn't come into it? 42 A. Never, and I don't really understand what you are 43 inferring there, sir. 44 45 Q. All right. 46 A. What are you inferring there, please? 47


1 Q. Well, I'll ask the questions, thanks, Mr Kirkwood. 2 Did you take any notes at this meeting? 3 A. Which meeting? 4 5 Q. The one at the Plumb Street Cafe? 6 A. No. 7 8 Q. Did Mr Broadley? 9 A. No. 10 11 Q. When was the first time you were asked to set out your 12 recollection of what occurred at that meeting? 13 A. Last Monday, Monday-week ago. 14 15 Q. So you haven't thought about it since then? 16 A. No. 17 18 Q. And it's possible you've just forgotten, isn't it, 19 what was said at that meeting? 20 A. No. 21 22 Q. And that, in fact, Mr Broadley did say, "We find 23 safety issues with plumbers that don't have an EBA go on 24 site and cause problems for the builder"? 25 A. No. 26 27 Q. Because that does describe the modus operandi for the 28 CEPU, doesn't it? 29 A. I don't believe so, no. 30 31 Q. You don't believe so? 32 A. No. 33 34 Q. So you think it does from time to time, do you? 35 A. No, never. 36 37 Q. Never? 38 A. Never. I can only speak for me, personally. 39 40 Q. Right. 41 A. When I was a Union organiser for the CEPU in the ACT, 42 I never. 43 44 Q. Could you have a look at paragraph 13 of your 45 statement. You say: 46 47 The CEPU was opposed to a tiered system in


1 relation to pay. We maintained that this 2 proposal was unfair as a tradesman should 3 be paid as a tradesman and no less. 4 5 A. Correct. 6 7 Q. Did your members support that? 8 A. Yes. 9 10 Q. Well, isn't it fair that someone who has been a member 11 for say 20 years and has all that experience gets paid 12 a bit more than a person who has only just started in the 13 industry? 14 A. No. 15 16 Q. You don't think so? 17 A. No, I don't. 18 19 Q. And surely -- 20 A. Because I've seen - I've seen a tradesman in his first 21 year out of his time who is a better tradesman than someone 22 who has had 10, 15, 20 years experience. 23 24 Q. You know that that was a point of controversy with the 25 employers, wasn't it? 26 A. It had been raised and it was one of the things that 27 we had negotiated for the previous 10 months on and it was 28 one thing that we weren't, we weren't going to have in the 29 agreement, a tiered system for tradesmen. We already had 30 a tiered system, it's called an apprenticeship. You start 31 in one, two, three and four. How long do some employers 32 want your apprenticeship to go? Five, six, seven, eight, 33 nine years? 34 35 Q. The employers were telling you that they didn't want 36 that? 37 A. Did or didn't? 38 39 Q. Didn't. 40 A. No. Some did. 41 42 Q. I think I put that badly, Mr Kirkwood. The employers 43 were telling you that they wanted a tiered system in 44 relation to pay? 45 A. Some did. 46 47 Q. And you weren't prepared to negotiate on that?


1 A. No. I think it's universally unfair. You're 2 a tradesman, it doesn't matter whether you have one year 3 experience or 50 years experience. The rate was for 4 a tradesman. Who then decides? You know, if you just 5 start with somebody does that mean that that's your first 6 year with them? I mean, who - you know, the rate was 7 a tradesman. 8 9 Q. Did you receive any anonymous complaints from time to 10 time -- 11 A. Yes, I did. 12 13 Q. -- about sites? And how did you maintain those? Did 14 you have some register or record? 15 A. No, I didn't. 16 17 Q. You didn't? 18 A. No. 19 20 Q. Nothing at all? 21 A. Nothing at all. 22 23 Q. Did you even write it down on a post-it note? 24 A. No, because most of the time they would have rung my 25 mobile and I mightn't have even been in the office at the 26 time and I would have gone straight to that site and dealt 27 with it. 28 29 Q. Did you keep any record at the office about what 30 complaints had come in? 31 A. No. 32 33 Q. Wasn't that pretty important for the purposes of 34 safety, to know what complaint -- 35 A. That I kept a record of complaints that we'd received? 36 37 Q. Yes, so you could look back after a year or two and 38 say, "Gee, we've had 10 complaints about that site and they 39 were all about this particular issue"? 40 A. No. 41 42 Q. Didn't do anything like that? 43 A. No, I didn't. 44 45 Q. That's not satisfactory, is it? 46 A. I thought it was. 47


1 Q. Did anyone supervise your work? Did anyone -- 2 A. No. 3 4 Q. You were just -- 5 A. My Committee of Management supervised my work. I'm an 6 employee of the Union and the Union is the group of members 7 that pay the fees, so the members are my bosses, so 8 they - and I was re-elected unopposed into - I don't know 9 the exact time it was, 2008-9, I'm not 100 per cent sure, 10 but I did have an election and I was an elected official 11 and I worked for the members; that's what my understanding 12 of the Union is. 13 14 Q. And you regarded it as important to go straight to 15 a site if you got a -- 16 A. Yes. If I was available to go there then I would. 17 18 Q. You'd go urgently, wouldn't you? 19 A. Yes, I would. 20 21 Q. Because you wouldn't want to leave that for any period 22 of time, would you? 23 A. Correct. 24 25 Q. Because lives could be in danger? 26 A. Depending on what the issue was, possibly. 27 28 Q. And you would be falling short in your duties to your 29 members if you didn't go straight away, wouldn't you? 30 A. If I was available to go straight away then I would. 31 32 Q. Yes. And any delay would be a falling-short in your 33 obligations to your members; do you agree with that? 34 A. No. 35 36 Q. Well, you -- 37 A. I could be delayed for any reason. I could be already 38 in a previous meeting. I could be already on another site 39 dealing with another safety issue that had been rung in. 40 There could be a multitude of reasons why I couldn't go 41 straight away. I would get there ASAP. 42 43 Q. ASAP, you would go there as fast as you reasonably 44 could possibly do so; is that fair? 45 A. Correct. 46 47 Q. Because you want to attend to the safety issues


1 straight away? 2 A. Correct. 3 4 Q. Would you ring up? Suppose you couldn't get there 5 straight away? 6 A. Sometimes I would, yes. 7 8 Q. You would ring up the employer and you'd say, "Listen, 9 I've just heard that there is a problem with safety, you'd 10 better do something about it"? 11 A. No. No, I would never ring the employer, I would ring 12 the PCBU because they're the person in control of the 13 building site. I never rang an employer about it. 14 15 Q. But you would ring someone? 16 A. Sometimes I might ring the PCBU. If I was in Sydney 17 for whatever reason and I couldn't get there for a day or 18 two, I'd ring. 19 20 Q. Sure. 21 A. I'd say, "This is what I've heard. Can you go and 22 check it out and get back to me? Ring me back once you 23 find out whether that is an issue, whether it is an issue, 24 and then what you're going to do about it", and then as 25 soon as I could, I'd go to the site. 26 27 Q. Because you were worried that something might happen? 28 A. I was, yeah, depending on what their complaint was 29 about. 30 31 Q. And then you might go to the site and check that what 32 you had asked for to be done over the phone had actually 33 been done? 34 A. Correct. 35 36 Q. And you'd want to see it with your own eyes and make 37 sure that everything had been tidied up the way it should 38 be? 39 A. Correct. 40 41 Q. And that's an important thing to do if you are serious 42 about safety, isn't it? 43 A. Very. 44 45 Q. I asked you about policies before and I think you said 46 you didn't have any in the ACT Branch. Were there policies 47 maintained in the Union Federally or at a State level?


1 A. Policies I don't believe so, no. I have not seen any 2 policies. I've read the Union rules, but I've never read 3 any policies. 4 5 Q. Did someone, either with a written policy or just 6 informally, say to you, "Look, you need to get as many 7 members as possible", for example? 8 A. That's a given. 9 10 Q. That's a given? 11 A. I started work on Wednesday, 17 January, spent 12 three days with the current - with the Secretary that 13 I took over from and basically we went around and I was 14 introduced to people. 15 16 Q. You mean back in 2007, you are talking about? 17 A. Yes, correct, and then he finished on the Friday and 18 that was the extent of the training that I received on what 19 I should and shouldn't do. 20 21 Q. But you understood that the Union wanted you to get as 22 many members as possible? 23 A. My wages are paid by members paying their dues, so 24 yeah. 25 26 MR STOLJAR: I have nothing further, thank you, 27 Commissioner. 28 29 THE COMMISSIONER: Mr Morison? 30 31 MR MORISON: Thank you, Commissioner. 32 33 <EXAMINATION BY MR MORISON: 34 35 MR MORISON: Q. Do I understand what you're saying is 36 that when you first started at the Union -- 37 A. Sorry, did you say when I started? 38 39 Q. Yes, when you started you said there was three days 40 and then the other guy left and you took the role up; is 41 that right? 42 A. Correct. 43 44 Q. From the day you started you were going on to sites, 45 doing the sort of thing, going around and inspecting 46 things; is that right? 47 A. Once I got all the approved material, all the approved

.24/07/2015 CFMEU ACT 1088 D J KIRKWOOD (Mr Morison) Transcript produced by DTI

1 training, because you can see by the original training that 2 concluded on the 25th, I think - I believe I started on the 3 Wednesday and then the following Monday to Friday I did the 4 HSR training, which is required to get you Federal Right of 5 Entry, and from then on, once I'd received a correct 6 accreditation to go on to the sites then yes, I used to go 7 on to sites. 8 9 Q. Do you do first-aid training? 10 A. I am a first-aid trained - yes, I'm first-aid trained. 11 12 Q. Was that through the Union, though, or was that 13 something else? 14 A. No, that was when I was employed as a plumber. 15 16 Q. That was something you did independently of the Union? 17 A. I'm sorry, I didn't hear? 18 19 Q. You did that independently of the Union? 20 A. Yes, that's right. 21 22 Q. And you resigned on 19 June 2013; is that right? 23 A. That's correct. 24 25 Q. Why did you resign? 26 A. I just got sick of bashing my head against a brick 27 wall and getting nowhere. 28 29 Q. You have heard the expression "belting the sites", 30 haven't you? 31 A. No. 32 33 Q. You have never heard that expression? 34 A. No. 35 36 Q. Have you heard it being referred to in these 37 proceedings? 38 A. I have. 39 40 Q. What do you understand it to mean? 41 A. I don't understand it to mean anything. 42 43 Q. It has never meant anything to you? 44 A. Correct. I only heard it this week. 45 46 Q. Right. Mr McCann had heard it before, did you know 47 that?


1 A. Yes. 2 3 Q. Have you ever spoken to him? 4 A. In relation to? 5 6 Q. How long have you known him? 7 A. Since 2007. 8 9 Q. Right. And he said "belting the sites" was to go 10 around between different sites when you have to do it 11 quickly. Belting the sites was belting around the sites in 12 a quick way when you've got to sort of - not go over, say, 13 a dozen sites in a day, then you'd belt the sites, you 14 would go around really quickly. Did you hear him say that? 15 A. I didn't hear him say that, no. 16 17 Q. But you understand that that is what he represents it 18 as being, don't you? 19 A. I believe that's what he said when he was sitting 20 here, yes. 21 22 Q. You think that's a complete load of nonsense, do you? 23 A. Is what a complete load of nonsense? 24 25 Q. What he said "belting the sites" was? 26 A. If that's what Matt thought "belting the sites" was 27 then that's what Matt said to you. 28 29 Q. It sounds like a lot of nonsense, though, doesn't it? 30 A. Belting the sites? 31 32 Q. His explanation of what belting the sites is sounds 33 like a lot of nonsense? 34 A. I can't attest to what Matt McCann thinks about 35 a certain statement. 36 37 Q. But you have never heard the expression? 38 A. Never. 39 40 Q. What does it mean? What do you think it would mean, 41 "belting"? 42 A. I don't know what it means. 43 44 Q. You don't know what it means at all? 45 A. I'd heard of it two days ago. That's the first time 46 I've heard the expression "belting the sites." 47


1 Q. You know Theo, don't you? 2 A. Yes. 3 4 Q. Is he also known as "the Greek"? 5 A. I've never heard him referred to as that but I take 6 it - yeah. 7 8 Q. And also "the Bulldog"? 9 A. I know him as that, yes. 10 11 Q. He came down from Sydney with Mr Poskus, didn't he? 12 A. I don't know. 13 14 Q. You don't know? 15 A. Mr Poskus never came to the ACT when I was involved 16 with the CEPU in the ACT. 17 18 Q. But Theo did? 19 A. Once or twice. 20 21 Q. He just came on his own? 22 A. No, with Mr Broadley. 23 24 Q. With Mr Broadley. All right. Why was Theo brought 25 down? 26 A. I'm not sure. 27 28 Q. No idea? 29 A. No idea. 30 31 Q. He just turned up? 32 A. He was with Mr Broadley. 33 34 Q. And what did they do? 35 A. They visited sites. We all visited sites together. 36 We probably spoke to employers together. We probably spoke 37 to principal contractors. We did what we normally do every 38 week. 39 40 Q. So "probably" means you have no recollection of 41 anything you did, is that right, specifically? I mean 42 specifically. 43 A. Yes, I sat in the office and did nothing, sir, for 44 a week. 45 46 Q. Do you remember doing anything with Theo or 47 David Broadley when they came down?


1 A. Yeah, we conducted employee votes on the week - the 2 28th was a Tuesday, the 27th was a Monday. The previous 3 week to that Theo came down and was involved in all the 4 employee votes for the EBA. 5 6 Q. What does that mean? 7 A. He was in the meeting with us. 8 9 Q. He came down for a meeting? 10 A. Well, we had 10 different meetings with every - with 11 all the different employees that voted on the EBA that 12 week. 13 14 MR MORISON: I have nothing further, Commissioner. 15 16 THE COMMISSIONER: Yes, Mr Docking? 17 18 MR DOCKING: Thank you. 19 20 <EXAMINATION BY MR DOCKING: 21 22 MR DOCKING: Q. I want you to assume that Mr Hooper for 23 the first time ever, on Tuesday this week, said on 9 May 24 2013 that Mr Broadley made reference to "belting the sites" 25 at a meeting at which you were present. What do you say to 26 that? 27 A. It wasn't said. We were sitting there with 10 of the 28 major plumbing contractors in the town, which had taken me 29 three years to get six of those companies to sit at the 30 same table together. I'm pretty sure that there was 31 a representative from the MBA at that meeting as well and 32 it was the final meeting to - there were two points, 33 I think, that were in contention still to finalise the EBA, 34 one of which was apprentice rates, one of which was the 35 percentage of the increase of the allowances. At one stage 36 Dave and I left the room so that the employers could speak 37 about the percentage increase, which they came back and it 38 was agreed finally at 2.5 per cent for the allowances, and 39 we reluctantly agreed to have the apprentice rates to be 40 whatever the Award rates were, as long as no currently 41 employed apprentice was going to be disadvantaged by having 42 that inserted into an agreement. 43 44 Q. In your evidence today you explained, in answer to 45 Mr Morison, that it was the week before the 27th and the 46 28th when agreements were to be signed, during that week 47 before there were votes undertaken?

.24/07/2015 CFMEU ACT 1092 D J KIRKWOOD (Mr Docking) Transcript produced by DTI

1 A. Correct. 2 3 Q. The Capital Hydraulics people came in for a vote? 4 A. They did. 5 6 Q. On that particular day after the "no" vote, did you 7 ever phone either Nikki or Joe Lo Re? 8 A. After that day or that day? 9 10 Q. That day. 11 A. That day, no. 12 13 Q. Did they ever attend the Union office on the day their 14 Capital Hydraulics' employees voted "no"? Did they then 15 come to any meeting on that day? 16 A. No. 17 18 MR DOCKING: Thank you, Commissioner. 19 20 THE COMMISSIONER: Is there anything further, Mr Stoljar? 21 22 MR STOLJAR: Nothing further, thank you. 23 24 THE COMMISSIONER: Mr Kirkwood can be excused? 25 26 MR STOLJAR: Yes, Commissioner. 27 28 THE COMMISSIONER: Q. You are excused from further 29 attendance, Mr Kirkwood, on your summons. Thank you for 30 waiting so long and for giving your evidence. You can 31 leave the witness box now. 32 A. Thank you, Commissioner. 33 34 <THE WITNESS WITHDREW 35 36 MR STOLJAR: The next witness is Mr John George Nikolic. 37 38 <JOHN GEORGE NIKOLIC, sworn: [2.28pm] 39 40 <EXAMINATION BY MR STOLJAR: 41 42 MR STOLJAR: Q. Your name is John George Nikolic? 43 A. That's correct. 44 45 Q. You are a resident of the ACT? 46 A. I am. 47

.24/07/2015 CFMEU ACT 1093 J G NIKOLIC (Mr Stoljar) Transcript produced by DTI

1 Q. And you are the Director of Industrial Relations and 2 In-House Legal Counsel for Master Builders Association of 3 the ACT? 4 A. That's right. 5 6 Q. Mr Nikolic, I wanted to ask you first about 7 a conversation that took place back on 13 June 2014, last 8 year. It was in Dickson. It was outside a dance school 9 and there was some industrial unrest going on. I don't 10 want you to comment on what might or might not have been 11 going on, I just want you to focus on a conversation that 12 I think you had with Mr McCann. At that time, to your 13 knowledge, the Lo Re's were in discussions, putting it 14 neutrally, with the CEPU about an EBA; is that right? 15 A. That's right. 16 17 Q. And you knew about those discussions? 18 A. I did. 19 20 Q. And did you and Mr McCann have a conversation about 21 that matter? 22 A. We did. 23 24 Q. Where were you when that happened? 25 A. In the carpark outside of the CFMEU offices. 26 27 Q. Was anyone else present? 28 A. No. 29 30 Q. You were just walking to your cars or something, were 31 you? 32 A. That's right. 33 34 Q. Doing the best you can, what did he say to you and 35 what did you say to him? 36 A. He said to me, "Look, where is CHD up to with their 37 EBA?" I said, "I don't know". And then he said, "All 38 right. Look, they either say yes or they say no and they 39 do a non-Union EBA, but if they say no, they're fair game." 40 41 Q. Did you hear him say that clearly? 42 A. I did. 43 44 Q. How far away was he? 45 A. He might have been about 5 metres away at the time. 46 47 Q. And then did you subsequently send an email in


1 relation to this issue? 2 A. That's right. 3 4 Q. To Mr McCann? 5 A. I did. 6 7 Q. I will show you an email. It is behind tab 10 of the 8 statement of Nikki Lo Re of 7 July 2015. It will come up 9 on the screen, Mr Nikolic. In fact, we are just tracking 10 you down a hard copy. You sent Mr McCann an email on 11 25 June 2014 at 3.46pm? 12 A. That's right. 13 14 Q. That's your email? I won't take you through the whole 15 email, but if you come to the paragraph with the heading, 16 "Other Issues", this was sent about 12 days after the 17 conversation? 18 A. Yes. 19 20 Q. It was still fresh in your mind? 21 A. Uh-huh. 22 23 Q. And you endeavoured accurately to set out what the 24 substance of the conversation was in that first paragraph? 25 A. I did. 26 27 Q. And then you received an email in response from 28 Mr McCann? 29 A. Yes. 30 31 Q. And he asserts that he didn't say "fair game", he said 32 "very lame". Is that what he said? 33 A. That's what he claims he said, yes. 34 35 Q. But you have a definite recollection of what you 36 heard? 37 A. I do. 38 39 Q. Could I ask you something about a different topic. 40 I will show you another email. This one is - I note for 41 the record - tab 8 to the statement of Mr Hooper of 30 May 42 2015. Did you receive a copy of that email? 43 A. I did. 44 45 Q. Did you get a telephone call from Mr Hall after you 46 had received that? 47 A. I did.


1 2 Q. Again, I know it was a while ago, but doing the best 3 you can, what did Mr Hall say to you? 4 A. So he called me and he said, "Who is this guy? He 5 sent me an email. Is he crazy? Is he a member of yours?" 6 and I said, "Yes, he is a member and, no, he's not crazy", 7 and then he said, "Okay. Well, he'd better be very careful 8 otherwise he's going to end up pulling tampons all day." 9 10 Q. And what did you say? 11 A. I said, "What on earth does that mean?" And he said, 12 "Oh, don't you know that's what people do in the 13 residential sector all day, they pull tampons out of 14 pipes." 15 16 Q. When he said "people", did you understand him to mean 17 plumbers? 18 A. Exactly. 19 20 Q. And what did you understand him to be intimating from 21 saying that? 22 23 MR AGIUS: I object to that. 24 25 MR STOLJAR: I said, "What was your understanding". 26 27 MR AGIUS: Yes, that why I object. 28 29 MR STOLJAR: I press it. 30 31 MR AGIUS: The words speak for themselves, 32 Mr Commissioner. 33 34 THE COMMISSIONER: Actually, they don't speak clearly to 35 me, so I think I will allow the question. 36 37 MR STOLJAR: Q. What was your understanding of what had 38 been communicated to you by Mr Hall in that conversation? 39 A. I understood that to be a threat to Mr Hooper's 40 business, to disrupt him out of the commercial construction 41 industry so that he only worked in the residential sector. 42 43 Q. And did you make any note or record of that 44 conversation? 45 A. Yes, I did, I made a note in member database. 46 47 Q. Is that the MBA member database?


1 A. That's right. 2 3 Q. Can I show you a screen-shot from that database. Is 4 this a print-out from the MBA database? 5 A. It is. 6 7 Q. It probably goes without saying, but where it says 8 "Date and time created, 15 August 2013, 1.24pm", that is 9 the date and time upon which the information recorded next 10 to the words "action details" was placed in the system? 11 A. Exactly. 12 13 Q. And who did that? Was it you? 14 A. It was me. 15 16 Q. How long after the call was this? 17 A. I think it was immediately afterwards. It was 18 immediately afterwards. 19 20 Q. You endeavoured to summarise at least the substance of 21 the call that you had received from Mr Hall in your note, 22 did you? 23 A. Yes. 24 25 MR STOLJAR: I would ask that this screen shot be received 26 into evidence, Commissioner. 27 28 THE COMMISSIONER: That will be Nikolic MFI-1. 29 30 NIKOLIC MFI-1 PRINT-OUT FROM THE MBA DATABASE 31 32 MR STOLJAR: Q. Did you contact Mr Hooper after that? 33 A. I did. 34 35 Q. How did you do that? 36 A. I gave him a call. 37 38 Q. A telephone call? 39 A. Yes. 40 41 Q. Do you remember what you said to him? 42 A. I don't remember the exact words, but I relayed to him 43 that a threat had been made against his business. 44 45 Q. Did you say who had made the threat? 46 A. Yes. 47


1 Q. Did you use the name of Mr Hall? 2 A. Yes, I said that Dean Hall had called me and had 3 conveyed a threat to his business. 4 5 MR STOLJAR: I have nothing further, thank you, 6 Commissioner. 7 8 THE COMMISSIONER: Mr Docking? 9 10 MR DOCKING: Thank you, Commissioner. 11 12 <EXAMINATION BY MR DOCKING: 13 14 MR DOCKING: Q. You said you are the director of IR. Do 15 you hold yourself out as an expert industrial relations 16 practitioner? 17 A. I hold my - yes. 18 19 Q. How long have you had that expertise? 20 A. For about five years. 21 22 Q. In having that expertise, do you say that applies to 23 the Work Health and Safety Act and the Regulations? 24 A. Where it relates to right of entry, yes, but not 25 otherwise. 26 27 Q. So you say you have a working familiarity with that 28 Act and legislation? 29 A. With the right of entry provisions, certainly. 30 31 Q. On the topic of performance reviews are you familiar 32 with the international literature, "Get Rid of the 33 Performance Review. How Companies Can Stop Intimidating, 34 Start Managing and Focus on what Really Matters", being 35 a UCLA book co-authored by Professor Culbert from the 36 Anderson School of Management UCLA? 37 A. No. 38 39 Q. Do you ever have to deal with performance reviews? 40 A. Yes. 41 42 Q. Are you familiar it has been the subject of much 43 litigation, for example, in the mining industry, for 44 probably 15-plus years, where redundancies have been 45 overturned, relied on performance reviews? 46 A. No, I'm not aware of that. 47

.24/07/2015 CFMEU ACT 1098 J G NIKOLIC (Mr Docking) Transcript produced by DTI

1 Q. I then want to go to an organisation, 2 SafeWork Australia. Are you familiar with that 3 organisation? 4 A. I am. 5 6 Q. Are you familiar with that they issue an interpretive 7 guideline, "Model WHS Act. Workplace Entry By Work Health 8 and Safety Entry Permit Holders"? 9 A. I'm familiar with that document. 10 11 Q. I will show you an extract of that guideline. 12 13 MR STOLJAR: Commissioner, Mr Nikolic has given very short 14 evidence on a particular conversation that occurred between 15 him and Mr McCann. We need to wrap up this afternoon. 16 I am just not certain how my friend says that going to 17 these guidelines is going to be relevant to the 18 conversation that took place in Dickson on the evening or 19 on the day of 13 June 2014. 20 21 MR DOCKING: It will go to the extensive cross-examination 22 of the MBA's counsel about right of entries and the like 23 and as I said, I'll be no more than 20 minutes in total. 24 25 THE COMMISSIONER: That is a seductive submission. 26 27 MR DOCKING: Thank you, Commissioner. 28 29 THE COMMISSIONER: At 3pm the curtain comes down. 30 31 MR DOCKING: Hopefully I'll get some points for being 32 early. 33 34 THE COMMISSIONER: You will, from me. 35 36 MR DOCKING: Q. I take you to the part in the 37 extract - do you see it has a heading, "Person must not 38 refuse or delay entry of WHS entry permit holder or hinder, 39 obstruct WHS entry permit holder"? 40 A. I see that. 41 42 Q. Do you accept, going to the two bottom dot points, 43 that ignorance of right of entry laws in relation to WHS is 44 inexcusable? 45 A. Okay. 46 47 Q. Do you accept that as a practitioner who says he is an


1 expert in right of entry matters? 2 A. Sure. 3 4 Q. Do you accept the next point: 5 6 The ability of Union officials to enter 7 premises to investigate suspected breaches 8 of OH laws is critical to ensuring a safe 9 workplace. 10 11 A. It can be. 12 13 Q. Do you dispute that as an expert, as you have held 14 yourself out, in that field? 15 A. Well yes, I do actually. 16 17 Q. On what basis do you dispute what SafeWork Australia 18 has issued as its interpretive guideline for that ability 19 of Union officials to enter premises to investigate 20 suspected breaches of OHS laws is critical in ensuring 21 a safe workplace? 22 A. Simply because there is a regulator in place. 23 24 Q. This reflects your ideological view, doesn't it, that 25 you should exclude Union officials exercising rights of 26 entries and just leave it to the regulator? 27 A. I wouldn't call that an ideological view. 28 29 Q. It's your view, is it not? 30 A. Well, I think - that is my view, yes. 31 32 Q. Have you ever read all the literature surrounding the 33 harmonisation of the WHS Act and the Regulations which was 34 undertaken by the Commonwealth Government negotiating with 35 State Governments and this Territory? 36 A. No. 37 38 Q. Are you not aware that it was an agreed position that 39 there should be a right of entry for Union officials to 40 enter when there is a suspicion, without giving notice? 41 A. Well no, I'm not aware of that. 42 43 Q. So it follows, you are completely ignorant of the 44 policy reasons why in the harmonisation that was the agreed 45 position amongst the Commonwealth, relevant States and the 46 Territory? 47 A. No, I don't --


1 2 MR STOLJAR: I object to that, Commissioner, in the sense 3 that it said "So it follows". 4 5 MR DOCKING: I withdraw "So it follows". 6 7 Q. The correct position is you are ignorant of the policy 8 reasons why the Commonwealth, certain States of Australia 9 and the Territory agreed that there should be a right of 10 entry for Union officials to enter when there is 11 a suspected contravention without giving advanced notice to 12 the occupier of the premises? 13 A. I'm not aware of the policy reasons for that decision, 14 no. 15 16 Q. Were you present for Mr Hooper's evidence or did you 17 listen to it? 18 A. No. 19 20 Q. For the record, it is at page 638, it commences, from 21 line 28. This is 21 July 2015. You know a body called the 22 FWBC, do you? 23 A. I do. 24 25 Q. Is that Fair Work Building and Construction? 26 A. It is. 27 28 Q. Are you aware they're advising principal contractors 29 that they can't let Union officials on site unless they 30 exercise rights of entry? 31 A. No. 32 33 Q. Are you aware - for example, this is at the bottom of 34 page 638 of the transcript on to page 639 - that Mr Hooper 35 has been told that principal contractors will be fined if 36 they let unions go on site without following the correct 37 procedures? 38 A. Pardon me? Could you repeat that? 39 40 Q. Mr Hooper gave evidence, at the bottom of page 638 on 41 to page 639, that the FWBC has told him that principal 42 contractors are going to be fined if the contractor lets 43 the Union on site without the correct procedures. 44 A. Okay. 45 46 Q. Have you not heard of that suggestion before? 47 A. No, I have not.


1 2 Q. Do you understand that a principal contractor, like 3 any occupier controlling premises, given you are an expert 4 in this area, can consent and permit a union official, like 5 any other member of the public, to enter the premises? 6 A. Yes, that is possible. 7 8 Q. As an expert you know that's the law, don't you? 9 A. That it is possible to invite someone on site. 10 11 Q. And you don't have to exercise your statutory right of 12 entry as a union official to get on site in those 13 circumstances, do you? 14 A. No, you don't. 15 16 Q. So that would be a classic example, wouldn't it, of 17 ignorance of the right of entry laws in relation to WHS, 18 that it is inexcusable to be telling subcontractors like 19 Mr Hooper that you can no longer consent to union officials 20 coming on site and they can only use rights of entry to get 21 on site? 22 23 MR MORISON: I object to that, Commissioner. 24 25 THE COMMISSIONER: Yes, Mr Morison, the basis for your 26 objection? 27 28 MR MORISON: Well, the relevance of it. 29 30 THE COMMISSIONER: I have this problem with this short 31 line. The law is the law. This is not a court, of course, 32 but normally in an Australian court or body considering the 33 law, expert or other evidence as to the law is 34 inadmissible, as distinct from foreign law, and that would 35 seem to be -- 36 37 MR DOCKING: Commissioner, I can make the point in 38 submissions. I have made the point, the foundation, noting 39 the time. 40 41 THE COMMISSIONER: That thought was also in my head. Yes, 42 thank you. 43 44 MR DOCKING: Q. I next want to show you provisions out 45 of the Work Health and Safety Act and the Regulation and 46 rather than you having to remember what they are, I will 47 provide a copy of those provisions and one to the


1 Commissioner. 2 3 MR MORISON: I will just rise to my feet at this stage, 4 Commissioner. It would seem that Mr Docking wants to 5 educate us all in his own expertise in areas of the law, 6 but I would have thought that all of the things that he is 7 now going to raise, or has been raising, are matters for 8 submission rather than checking whether, you know, my 9 client has read the legislation recently. I don't see the 10 point of it. 11 12 MR DOCKING: Mr Morison will see the point and I accept 13 uninformed cross-examination about these matters and as I 14 said I will be finishing within the time, Commission. 15 16 MR MORISON: Perhaps Mr Docking can refrain from making 17 slurs against my character and perhaps reflect upon his 18 own. 19 20 THE COMMISSIONER: I think we will ignore the last two 21 propositions that have come from both counsel. I know you 22 haven't asked a question about this yet, but this does seem 23 to be an examination of the law and Mr Nikolic's knowledge 24 of the law. 25 26 MR DOCKING: It is not. Rather than him having to 27 remember unaided, by looking at the legislation, I am going 28 to take him to Regulation 25 which sets out the content of 29 the prescribed right of entry course, and given his 30 counsel's cross-examination of CEPU official witnesses 31 suggesting they were not trained properly, I am trying to 32 establish, with the aid of looking at the content of 33 Regulation 25, if it suggests that there's any deficiency 34 in that training content. 35 36 THE COMMISSIONER: Can't we just take the training, of 37 which there is some evidence, in our left hand and look at 38 the Regulation in our right hand and form a view? You can 39 from the point of view of submissions and I can, if 40 necessary, from the point of view of decision. 41 42 MR DOCKING: It is only because there has been extensive 43 MBA cross-examination, I am trying to establish if it's 44 really suggested by the MBA that the prescribed content of 45 the training is deficient in any way and, if so, where? 46 What should be extra, if anything? That's what I was 47 trying to ask the witness, without him having to remember


1 in the witness box what the prescribed content is. 2 3 THE COMMISSIONER: Deficient in the light of a legal 4 standard? 5 6 MR DOCKING: In light of what the Regulation has 7 prescribed has to be included in the right of entry 8 training. 9 10 THE COMMISSIONER: That is calling for evidence about 11 a matter of law. 12 13 MR DOCKING: It's probably mixed fact and law. 14 15 THE COMMISSIONER: Mixed fact and law. 16 17 MR DOCKING: Yes. 18 19 THE COMMISSIONER: I don't want to cut you short and 20 I know the time, but it does seem, to put it another way, 21 beyond the boundaries of what's useful. What is useful is 22 the contents of your own brain and experience in relation 23 to the law. 24 25 MR DOCKING: I don't want to be faced with a submission 26 down the track that there should be some different training 27 given to the CEPU officials who have all undertaken the 28 prescribed training under the harmonised scheme was 29 determined for its content under Regulation 25 and there 30 have been a lot of attacks that they weren't trained 31 properly, on behalf of the MBA. 32 33 THE COMMISSIONER: Mr Stoljar, what do you think of the 34 admissibility of the projected line? 35 36 MR STOLJAR: With the greatest respect to my friend, it 37 does seem to be that what he's going to be asking 38 Mr Nikolic is to assess whether or not training that was or 39 was not provided matched up to what was required to be 40 provided pursuant to section 131 in the Regulation. If 41 that is the point of the examination, if I have fairly 42 captured it, then it is a matter that seems to 43 me Mr Docking could very fairly and reasonably raise in 44 submissions, but whether or not Mr Nikolic's evidence on 45 the point will assist you, Commissioner, is a rather moot 46 question. 47


1 MR DOCKING: I can indicate the question. Having had the 2 chance to refresh his memory about what is in 3 Regulation 25, does he suggest that the prescribed content 4 is deficient in any way? 5 6 THE COMMISSIONER: Let's just see how we get along. Yes, 7 Mr Morison? 8 9 MR MORISON: Commissioner, I was asking these witnesses 10 what training they had in safety. They were going around 11 to these sites and I put it fairly and squarely to them 12 that it was all a false basis upon which they were going 13 there and I was just interested to find out did they 14 actually have any training in this area? I never suggested 15 to them that the training was not adequate, I did not put 16 that sort of proposition to them, and I don't think it's 17 fair to then now ask Mr Nikolic this comparison that is 18 being made. I don't see the connection, quite frankly. 19 20 THE COMMISSIONER: You remember a couple of minutes ago 21 Mr Docking said he wanted to proleptically, as it were, 22 meet or protect his client against the possibility that 23 there'd be a submission that the available courses of 24 training were deficient or short of the regulation 25 standard. Are you going to make any such submission? 26 27 MR MORISON: No, I'm not going to make a submission like 28 that, or I don't think so, but the bottom line is that when 29 Mr Broadley gave evidence, he didn't even remember he'd had 30 any training and then today they tender a statement saying 31 he had five days training. I don't really know what 32 training they've actually had or whether it meets 33 regulations or not, but at the end of the day that's not 34 the point. 35 36 THE COMMISSIONER: I understand your point, or one of your 37 points, is that whether or not there was a reasonable 38 suspicion of a safety breach, officials were entering not 39 only because they wanted to vindicate standards of safety, 40 but because they wanted to put pressure on a particular 41 contractor working on the site or maybe the principal 42 contractor on the site for other ends. Is that your only 43 point? 44 45 MR MORISON: At the end of the day, I would suggest that 46 most of these Union officials turning up, you know, have 47 gone along to some course they've forgotten about and they


1 probably don't have a clue what they're looking for, at the 2 end of the day, so I suppose he should be allowed to ask 3 the question. 4 5 THE COMMISSIONER: I think we might just see how we go for 6 a short time, Mr Docking. I will be better educated in the 7 goals. 8 9 MR DOCKING: Q. Having had a chance to refresh your 10 recollection about what is in Regulation 25, the prescribed 11 requirements for right of entry training, are you 12 suggesting in any way that the prescribed content is 13 deficient? 14 A. I don't think I can really talk to it. I don't 15 profess to know about the contents of that training. 16 17 Q. I then go to other topics. Does the MBA have major -- 18 19 THE COMMISSIONER: It is probably not necessary to have 20 that marked because they are matters of statute law, 21 enacted law. 22 23 MR DOCKING: Yes. Certainly the extract from 24 SafeWork Australia is a document I would ask to be marked. 25 26 THE COMMISSIONER: Yes. That will be Nikolic MFI-2. The 27 other materials handed to the witness, namely, the Work 28 Health and Safety Act 2011, sections 131 and 133 and 29 Regulation 25 of Work Health and Safety Regulation 2011, it 30 is sufficient to note that they were placed in front of the 31 witness. 32 33 NIKOLIC MFI-2 EXTRACT FROM SAFEWORK AUSTRALIA 34 35 MR DOCKING: For the record, there is a confidentiality 36 provision in the Work Health and Safety Act which arose -- 37 38 THE COMMISSIONER: Which you can rely on later. 39 40 MR DOCKING: -- during Mr Poskus's evidence. Yes. 41 42 Q. The MBA covers major principal contractors as members? 43 A. Yes. 44 45 Q. Smaller subcontractors, say in specialties like 46 plumbing? 47 A. That's correct.


1 2 Q. The whole range from small subcontractors to the 3 largest principal contractors in the industry? 4 A. Yes. 5 6 Q. What legislation is there suggesting a safety officer 7 employed by any of those must do a compulsory course? 8 A. I'm not aware. 9 10 Q. What MBA guideline is there suggesting that a safety 11 officer from the smallest to the largest and anything in 12 between should do a compulsory safety course? 13 A. I'm not aware Master Builders has any such policies. 14 15 THE COMMISSIONER: Isn't this material you can establish 16 by submissions or conclusions you can establish by 17 submissions? 18 19 MR DOCKING: I need the evidentiary basis as well about 20 guidelines because there was cross-examination from the 21 MBA's counsel suggesting and criticising people for not 22 having done safety courses. If it is suggested that 23 governance of trade union requires that, I think the 24 Commission might be guided by a major peak employer body 25 has no such guidelines. 26 27 THE COMMISSIONER: But those questions were framed in 28 terms of what the law required. You said no legal 29 requirement for something or other. 30 31 MR DOCKING: And I moved on - did they have any guidelines 32 internally at the MBA suggesting -- 33 34 THE COMMISSIONER: Was that question answered? 35 36 MR DOCKING: I am sorry, with the lateness, I can't recall 37 on my feet. 38 39 THE COMMISSIONER: Very well. So you have an unanswered 40 question at the moment? 41 42 MR DOCKING: Perhaps I will check. 43 44 Q. Are there any guidelines for the MBA, whether it be 45 the smallest contractor that its members consist of or the 46 largest principal contractor, that the safety officer 47 should do a compulsory course?


1 A. I don't know. 2 3 Q. And then on this issue of keeping a log of safety 4 complaints or rectifications, or both, on a construction 5 site, to your knowledge is there any legislation or 6 regulation that requires such a log? 7 8 THE COMMISSIONER: I reject that question. 9 10 MR DOCKING: Might I then ask this question, subject to 11 the Commission's views? 12 13 THE COMMISSIONER: Yes. 14 15 MR DOCKING: Q. To your knowledge is there any guideline 16 of the MBA for its contractors, from the smallest to 17 largest, that they should keep a log recording safety 18 complaints made on that construction site? 19 A. I don't know. 20 21 Q. Is there any log recommendation for any rectifications 22 on such sites and by such contractors? 23 A. I don't know. 24 25 Q. If it existed, would you know? 26 A. No. 27 28 Q. Who would within the Master Builders Association? 29 A. I assume a safety officer, a safety adviser. 30 31 Q. Going last week to the McCann conversation, you accept 32 it's in a carpark? 33 A. I do. 34 35 Q. You are both walking away from each other? 36 A. Mr McCann was walking away from me, I believe I was 37 stationary. 38 39 Q. And you were present during Mr McCann's evidence? 40 A. Part of it. 41 42 Q. You heard his evidence about what he said took place 43 in the conversation? 44 A. No. 45 46 Q. His version reflected in an email back to you is 47 correct. He said to you, within hours, that his words used


1 were "very lame"; that is correct? 2 A. That is not correct. 3 4 Q. You in a later email agreed that Mr McCann came up 5 with a really good suggestion, he'd walk away if it was 6 unsuccessful; that suggestion was a majority support 7 determination? 8 A. I didn't think it was a really good suggestion, but 9 I thought that if there was a second vote indicating that 10 employees did not want the CEPU enterprise agreement, then 11 surely at that point, you know, CHD would no longer be 12 targeted. 13 14 Q. You have truthfully expressed your views to your 15 client in an email about that suggestion? 16 A. Look, I thought that if they did it again then it 17 would be over, hopefully. 18 19 Q. Did you truthfully express your views to your own 20 client about Mr McCann's suggestion of a majority support 21 determination? 22 A. Yes. 23 24 Q. And it was your client's decision not to undertake 25 a majority support determination? 26 A. Yes, which I thought very reasonable because the 27 employees had already voted down the agreement in question 28 and had been subjected to a prolonged and extremely 29 stressful and harassing campaign by the CEPU. 30 31 Q. Look, you have never witnessed any of that personally, 32 yourself, have you? 33 A. Well, I have seen the effect that it had on the 34 employers. 35 36 Q. Will you now turn to my question. Are you a legal 37 practitioner? 38 A. I am a -- 39 40 Q. I am just clarifying, are you a legal practitioner? 41 A. I am. 42 43 Q. Will you attend to my question? You never personally 44 saw and heard any of the allegations about the 45 CEPU Plumbers? 46 A. Well, I did. I was personally present when Mr McCann 47 threatened CHD's business.


1 2 Q. I am sorry? On what occasion are you suggesting this 3 took place? 4 A. The occasion you took me through just before. 5 6 Q. Are you talking about the carpark conversation? 7 A. Correct. 8 9 Q. Putting that aside, where there was a dispute between 10 you and Mr McCann, you witnessed no other matter directly 11 or personally yourself, did you? 12 A. That's correct. 13 14 MR DOCKING: Thank you, Commissioner. 15 16 THE COMMISSIONER: Thank you, Mr Docking. Mr Agius? 17 18 MR AGIUS: Thank you. 19 20 <EXAMINATION BY MR AGIUS: 21 22 MR AGIUS: Q. Mr Nikolic, do you have a practising 23 certificate? 24 A. I do. 25 26 Q. From which State? 27 A. From the ACT. 28 29 Q. You have given some evidence about a conversation that 30 you say you had with Mr Hall? 31 A. Yes. 32 33 Q. You came to know that Mr Hooper had written to 34 Mr Broadley, the Secretary of the CEPU? 35 A. That's correct. 36 37 Q. Had you seen a copy of that email before Mr Hall spoke 38 to you? 39 A. I can't recall exactly when I saw it. 40 41 Q. You say in the statement we've had that you believe 42 that the email was then shown to Mr Dean Hall, the 43 Secretary of the CFMEU? 44 A. Yes. 45 46 Q. What is the basis of that belief? 47 A. Because when he called me, he called me to discuss the

.24/07/2015 CFMEU ACT 1110 J G NIKOLIC (Mr Agius) Transcript produced by DTI

1 fact that Mr Hooper had sent this email. 2 Q. I suggest to you that he never said any words to that 3 effect at all? 4 A. I reject that. 5 6 Q. So you are suggesting that because Mr Hall had seen an 7 email which was not directed to him, that was directed to 8 the CEPU, that Mr Hall would ring you to complain about 9 Mr Hooper sending the CEPU an email? 10 11 MR MORISON: I object. 12 13 MR AGIUS: Is that what you are suggesting? 14 15 THE COMMISSIONER: Just a moment, Mr Nikolic. Yes, 16 Mr Morison. 17 18 MR MORISON: His evidence is that Mr Hall said that he was 19 referring to the email, so the premise of the question 20 should be that, not ignoring that he has already given that 21 evidence. 22 23 MR AGIUS: That is the premise of the question. 24 25 MR MORISON: I don't think it is. 26 27 MR AGIUS: Perhaps we should let the witness decide. 28 29 Q. Let me put it again. Let's just accept for a moment 30 that which I told you never happened, but let's accept that 31 it did. Let's accept for a moment that Mr Hall received an 32 email somehow, or a copy of an email, that Mr Hooper had 33 sent to the CEPU. Let's accept that for the purpose of my 34 question. Are you suggesting that the Secretary of the 35 Branch of the CFMEU, Mr Hall, would ring you to complain 36 about an email that he'd learnt of which Mr Hooper had 37 written to the CEPU -- 38 39 MR MORISON: Objection. 40 41 MR AGIUS: Which - oh. 42 43 THE COMMISSIONER: Let's just have the whole question, 44 Mr Morison. It is rather -- 45 46 MR MORISON: The reason I rose to my feet to say 47 "objection" is because he is now saying, "Do you think that


1 Mr Hall would be doing it?" He's asking him to go inside 2 the mind of Mr Hall. He's saying he did ring him. Now 3 he's saying, "Well, what did you think? Why would Mr Hall 4 do that", and get inside Mr Hall's mind. That is what I am 5 objecting to. 6 7 MR AGIUS: Mr Commissioner, what I am trying to put to this 8 witness - and I have 29 minutes today and all of Monday to 9 do it - what I am trying to put to this witness is the 10 ridiculous nature of the proposition that he is venturing; 11 that is, that the Secretary of the CFMEU would bother to 12 ring this witness to complain about an email that Mr Hooper 13 wrote to the CEPU which did not concern the CFMEU. 14 15 THE COMMISSIONER: Q. Mr Nikolic, did you just hear what 16 Mr Agius said? 17 A. I did. 18 19 Q. Do you think it's ridiculous? 20 A. I don't think it's ridiculous. 21 22 MR AGIUS: Q. You see, I suggest that Mr Hall rang you 23 and had a conversation with you about an entirely different 24 matter? 25 A. Okay. 26 27 Q. And he said to you words to the effect, in relation to 28 Mr Hooper, "That bloke is disgusting. He is going around 29 calling my Maori and Tongan organisers monkeys and apes. 30 This is a disgrace and it is racial vilification. Who does 31 he think he is? He should fuck off back to the residential 32 sector where he may be able to get away with that bullshit. 33 I don't understand why he wants to have a blue with us. 34 His blue is with the CEPU." I suggest that is what he said 35 to you, in substance, when he called you? 36 A. I reject that. 37 38 Q. Did he say any of that to you? 39 A. He said - the part about wanting to have - that 40 Mr Hooper should have a blue with the CEPU, yes. 41 42 Q. He said that? 43 A. Mmm. 44 45 Q. But wasn't he complaining to you about what he had 46 heard of Mr Hooper's conduct in denigrating, racially 47 denigrating, his organisers?


1 A. No, he wasn't. 2 3 Q. And you rang Mr Hooper, didn't you? 4 A. I did. 5 6 Q. Have you seen Mr Hooper's statement? 7 A. No. 8 9 Q. You haven't seen it at all? No-one has shown it to 10 you? 11 A. I may have seen parts of it; I can't recall. 12 13 Q. How might you have seen parts of it? 14 A. Look, I can't recall, honestly. 15 16 Q. But in what circumstances might you have seen parts of 17 it? 18 A. I would have been taken to it if it referred to me, 19 possibly. 20 21 Q. By whom? 22 A. By my counsel. 23 24 Q. This counsel? (Indicating) 25 A. Yes. 26 27 Q. But you say you can't remember it? 28 A. No. 29 30 Q. Do you remember an occasion when you sat down with 31 your counsel and he did take you through documents which 32 referred to you? 33 A. Yes. 34 35 Q. And did he take you through this one; that is, 36 Mr Hooper's statement? 37 A. I can't recall. 38 39 Q. When did this happen? 40 A. Some time this week. 41 42 Q. Well, today is Friday. When this week? 43 A. Look, I can't recall. 44 45 Q. Was it today? 46 A. No. 47


1 Q. Yesterday? 2 A. Like I said, I can't recall. 3 4 Q. You can't recall what happened 24 hours ago? 5 A. I can remember some of the things that happened 6 24 hours ago, but to your question about whether I saw the 7 witness statement of Mr Hooper, I don't know. 8 9 Q. No, I am not asking you about what you saw now. I am 10 asking you what you were taken through by your counsel. 11 A. Okay. 12 13 Q. But I am asking you whether it happened yesterday? 14 A. Look, I don't know. 15 16 Q. How long have you been a lawyer? 17 18 MR MORISON: I object to that. What is the relevance of 19 that? 20 21 MR AGIUS: I press it. 22 23 THE COMMISSIONER: What is the relevance of it, Mr Agius? 24 25 MR AGIUS: Well, lawyers, in my experience, take an 26 accurate and good note. Lawyers, in my experience, can 27 remember whether or not they've had a legal discussion 28 within 24 hours. 29 30 THE COMMISSIONER: All right. Ask the question again. 31 32 MR AGIUS: Q. How long have you been a lawyer? 33 A. About six or so years. 34 35 Q. And during that time have you ever been involved in an 36 inquiry or litigation? 37 A. No. 38 39 Q. Have you ever had to instruct counsel? 40 A. Once. 41 42 Q. When was that? 43 A. Oh, about five years ago. 44 45 Q. What was that about? 46 47 MR MORISON: I object to this. What is the point of this?


1 2 THE COMMISSIONER: I am sorry? 3 4 MR MORISON: What is the relevance of this? 5 6 THE COMMISSIONER: We are sort of straying from the 7 central -- 8 9 MR AGIUS: I will come at it another way. 10 11 Q. Do you seriously say on your oath you cannot recall 12 whether or not you had a conversation with your counsel 13 yesterday on the topic of what was in Mr Hooper's statement 14 about you? 15 A. Yes. 16 17 Q. Do you know that Mr Hooper says that when you rang 18 him, you said to him that if he carried on the way he'd 19 been, Mr Hall would deal with him in an old-fashioned way 20 and meet him in the paddocks? 21 A. Pardon me, what's the question? 22 23 Q. Do you know that that is what Mr Hooper says you said 24 to him in a phone call to him? 25 A. Oh yes, I am aware of that. 26 27 Q. When did you become aware of that? 28 A. I can't remember. 29 30 Q. What was the source of your knowledge of that? 31 A. I can't remember. 32 33 Q. Was it Mr Hooper directly? 34 A. No. 35 36 Q. Have you ever had a conversation with Mr Hooper about 37 the fact that you had telephoned him and spoke to him about 38 what Mr Hall had said to you? 39 A. No. Only the conversation itself. 40 41 Q. Did you say to him that Mr Hall had said that if he 42 carried on the way he had been, he, Mr Hall, would deal 43 with him in the old-fashioned way and meet him in the 44 paddocks? 45 A. Yeah, I don't recall that. 46 47 Q. When you say you don't recall it, I'm asking you


1 whether you said those words or not, or words to that 2 effect? 3 A. I don't know if I said those words. I know that 4 I called Mr Hooper and conveyed that a threat had been 5 made. 6 7 Q. Yes. So it's possible you might have said those 8 words? 9 A. That's all I remember. I don't know if I said those 10 words. 11 12 Q. Is it possible that you would have said those words? 13 A. It may be possible. 14 15 Q. You've given evidence today about what you say Mr Hall 16 said to you in the telephone conversation? 17 A. Yes. 18 19 Q. Is that right? 20 A. That's right. 21 22 Q. Nowhere in that evidence have you said anything about 23 Mr Hall threatening to take Mr Hooper into the paddocks and 24 deal with him in the old-fashioned way? 25 A. That's right. 26 27 Q. It's not in your note? 28 A. No. 29 30 Q. Why do you say it's possible you may have said that to 31 Mr Hooper? 32 A. Look, I don't know if I said that. Like I say, 33 I can't remember what I said to Mr Hooper. I just conveyed 34 that a threat was made. 35 36 Q. Yes. Might it be that you conveyed that to Mr Hooper 37 because what you were trying to do is promote aggression as 38 between him and the CFMEU? 39 A. No, of course not. 40 41 Q. What other reason might there be for you to tell 42 Mr Hooper that Mr Hall had threatened to take him into the 43 paddocks and deal with him in the old-fashioned way? 44 A. Mr Hall may have also said that during the 45 conversation, if that was what I was said. 46 47 Q. Well, you may have been talking about the recipe for


1 scones as well. I am asking about what actually happened. 2 3 MR STOLJAR: Commissioner, that is not fair. Mr Agius has 4 been putting to this witness, "Is it possible that you said 5 these words?" I mean, anything is possible. It was 6 really a -- 7 8 MR AGIUS: Is that what the witness is saying on his oath, 9 that anything is possible, including the recipe for scones? 10 11 THE COMMISSIONER: It doesn't assist to interrupt counsel 12 putting a point. 13 14 MR STOLJAR: Mr Agius, settle down. He has been putting 15 to this witness that it is possible that he said those 16 words and it is now being put, "Well" - questions have been 17 built on layers of hypothetical incidents and we are now 18 getting down to the point that he is being asked about 19 scones. 20 21 MR MORISON: I also object. 22 23 MR AGIUS: Commissioner, why is Counsel Assisting who had 24 an obligation to put Mr Hooper's evidence to this witness, 25 now protecting the witness from cross-examination on the 26 very point that he, himself, with great respect to him, had 27 an obligation and a duty to put to this witness when he 28 called him? 29 30 THE COMMISSIONER: Do you want me to answer that question? 31 I don't answer people's questions. 32 33 MR AGIUS: I am objecting to my learned friend taking the 34 point that he does in circumstances where he should have 35 been examining this witness about this conversation which 36 he led, as hearsay, against my client some days ago. 37 38 THE COMMISSIONER: What is the precise question you want 39 to put now? 40 41 MR AGIUS: Q. Mr Nikolic, how could it be possible, on 42 what basis could it be possible, that you told Mr Hooper 43 that Dean Hall had said to you that if he carried on the 44 way he had been, he, Mr Hall, would meet him in the 45 paddocks and deal with him in the old-fashioned way? 46 A. I don't know. 47


1 Q. You see, those words were never said to you by 2 Mr Hall, were they? 3 A. Well, I don't know; I can't recall. 4 5 Q. Surely if you had received information from Mr Hall 6 that he was going to meet one of your members in the 7 paddock and deal with him in the old-fashioned way, you 8 would have made a note of it? 9 A. Look, I made a note of the threat that I remembered, 10 that's what I did. 11 12 Q. You described that threat today more than once as 13 a threat to Mr Hooper's business? 14 A. Yes. 15 16 Q. So you made a note of the threat to Mr Hooper's 17 business? 18 A. Yes. 19 20 Q. Surely you would have made a note of any physical 21 threat to Mr Hooper's life? 22 A. Not necessarily. 23 24 Q. Why not? 25 A. If those words were said I would have conveyed them. 26 For no reason. I mean, look, I would record what 27 I suppose - I don't know. 28 29 Q. You don't know, do you? I suggest to you the 30 reason you don't know is -- 31 A. I know that that threat was made. 32 33 Q. The reason you don't know is because those words were 34 never said to you, that is, meeting with Mr Hooper in the 35 paddock and dealing with him in the old-fashioned way; you 36 know those words were never said to you, don't you? 37 A. No, I don't know that. 38 39 Q. And you know that you conveyed that to Mr Hooper for 40 a motive of your own, don't you? 41 A. That is not true. 42 43 Q. Your job, as you see it, is to promote conflict 44 between the CFMEU and your members, isn't that right? 45 A. No. 46 47 Q. Isn't that what you do?


1 A. No. 2 3 Q. Isn't that how you've decided to stake out your 4 territory as Director at the MBA? 5 6 MR MORISON: I object to that. 7 8 THE COMMISSIONER: Yes, I uphold that objection. This is 9 repetitive, Mr Agius. 10 11 MR AGIUS: Q. I suggest that when Mr Hall said to you the 12 words I have put to you about going around calling his 13 Maori and Tongan organisers monkeys and apes, you said 14 words to the effect, "If he did say that it's 15 inappropriate"? 16 A. I reject that. 17 18 Q. What do you say to that? 19 A. I reject that. 20 21 Q. You can remember that part of the conversation, 22 can you? 23 24 MR MORISON: I object to that. 25 26 THE WITNESS: No, I can't remember that part of the 27 conversation. 28 29 MR AGIUS: Q. And I suggest that he said to you, "It's 30 more than that, it's illegal. Tell him to pull his head 31 in"? 32 A. Pardon me, could you repeat the question? 33 34 Q. I suggest to you that he said to you, "It's more than 35 that, it's illegal. Tell him to pull his head in." 36 A. He didn't say that. 37 38 Q. And I suggest that you then rang Mr Hooper at the 39 invitation of Mr Hall. What do you say to that? 40 A. No, that's not what happened. 41 42 Q. I suggest to you that your file note, to the extent 43 that it alleges that Mr Hall called you regarding or in 44 relation to an email sent to the CEPU about coercion to 45 enter into an EBA, is an assumption that you made as to the 46 purpose of Mr Hall's call? 47 A. No, that was the meaning of the call.


1 2 Q. I suggest to you that the conversation was not about 3 Mr Hooper being very careful if he didn't want to end up 4 working in the residential sector? 5 A. That's not correct. 6 7 Q. Would you want to have a subcontractor working in the 8 civil centre if he was referring to Union organisers as 9 monkeys and apes? 10 11 MR MORISON: I object to that. 12 13 THE COMMISSIONER: I uphold that objection. 14 15 MR AGIUS: Q. Mr Nikolic, have you seen the report of the 16 Inquiry into Compliance with Work Health and Safety 17 Requirements in the ACT's Construction Industry entitled, 18 "Getting Home Safely"? 19 A. I've seen it, I haven't read it. 20 21 Q. You didn't read it? 22 A. No. 23 24 Q. In what circumstances did you see it and not read it? 25 A. Well, I'm aware that it exists. 26 27 Q. Did you not think it important to read it? 28 29 MR MORISON: Objection. 30 31 THE COMMISSIONER: Yes, I reject that question. 32 33 MR AGIUS: Q. Are you aware that this inquiry was directed 34 by the ACT Attorney-General and Minister for Workplace 35 Safety and Industrial Relations? 36 37 THE COMMISSIONER: I reject that. What is the point of 38 this, Mr Agius, this document that you are asking about? 39 40 MR AGIUS: Members of the MBA, a number of contractors and 41 subcontractors, have given evidence that the CFMEU is not 42 interested in safety and that they use safety as an excuse 43 to get on site. There is a deal of material which 44 indicates that safety in the construction industry in the 45 ACT has been found to be in an appalling condition and that 46 the CFMEU has been leading, through the Work Safety 47 Council, a drive to improve safety in the ACT after the


1 publication of this report and that that Work Safety 2 Council, which arose as a result of this report, has had 3 a number of meetings, at least one of which was attended by 4 this witness, where the approach of the CFMEU was 5 demonstrated. 6 7 Now, if witnesses are permitted to make broad 8 statements of attack upon the CFMEU about their attitude to 9 safety, in our respectful submission, we ought to be 10 entitled to lead, through this witness, a Director of the 11 MBA, what is on the public record about safety and the 12 attitude of the CFMEU. 13 14 THE COMMISSIONER: Can't the line of reasoning you have 15 just been outlining be vindicated by documentary tenders? 16 17 MR AGIUS: We can prove what we need to in terms of what 18 the condition of work health and safety is in the ACT by 19 the tender of the report and we would propose to do that. 20 It is an annexure to Mr Hall's statement, DH-2 of his 21 statement of 23 September 2014. 22 23 THE COMMISSIONER: Can't the other points be established 24 by either documentary tenders or CFMEU witnesses? 25 26 MR AGIUS: Does that mean I can't get it from this 27 witness? 28 29 THE COMMISSIONER: Well, art is long, Mr Agius, but life 30 is very short. We have been in a great pother today about 31 trying to complete Mr Nikolic's evidence today and I am 32 trying to achieve that result. I don't see why it should 33 be done by lengthy questioning of Mr Nikolic, in those 34 circumstances, if it can be done by some other method. 35 36 MR AGIUS: There is another basis upon which I can put 37 this, Commissioner, and that is on the basis of credit, 38 because this is the very document that this witness not 39 only ought to know about but ought to have read. 40 41 THE COMMISSIONER: You think I should find him guilty of 42 perjury because he was careless in not reading a document? 43 44 MR AGIUS: No. Perhaps incompetent. 45 46 THE COMMISSIONER: Incompetence doesn't prove lack of 47 credibility. That is a rather over-general adage, perhaps,


1 but it has a core of truth in it. 2 3 MR MORISON: Also, Commissioner, Mr Agius said he would be 4 about 15 or 20 minutes this afternoon. 5 6 MR AGIUS: I said I would be half an hour. 7 8 MR MORISON: Perhaps he should withdraw the "incompetent" 9 remark. 10 11 MR AGIUS: No, I will put that as a submission. I've tried 12 to establish the level of competence. 13 14 THE COMMISSIONER: If there isn't some more rational 15 approach to testimony, we will simply adjourn the hearing 16 until 10am on Monday so everyone can calm down. Next 17 question, Mr Agius? 18 19 MR AGIUS: Q. Are you aware that in 2013 WorkSafe were 20 conducting a program entitled, "You Could Be Next" in 21 relation to Workplace Health and Safety in the building and 22 construction industry? 23 A. Am I aware of that? 24 25 Q. Yes. 26 A. No. 27 28 Q. Are you aware that it was noted that WorkCover was 29 conducting - I should say WorkSafe was conducting blitzes 30 or work sites in 2013 in an endeavour to bring about 31 cultural change? 32 A. Yes, I recall that. 33 34 Q. And are you aware that in 2013 the CFMEU were running 35 campaigns about consultation and safety on building sites 36 in the ACT? 37 A. Yes, I was aware of that I suppose. I'm not sure to 38 what extent it was a campaign. 39 40 Q. Were you present at a meeting of the Work Safety 41 Council on 17 May 2013? 42 A. Yes. 43 44 Q. Have you seen the minutes of that meeting? 45 A. Yes. 46 47 Q. Do you dispute the content of the minutes of that


1 meeting? 2 A. No. 3 4 Q. You know that work health and safety on construction 5 sites in the ACT has been found to reflect, in terms of 6 serious injury rates, 31 per cent higher in the ACT than 7 the national average? 8 9 MR MORISON: I object to this. 10 11 THE COMMISSIONER: Are you reading from a document, 12 Mr Agius? 13 14 MR AGIUS: I am reading from my notes. 15 16 THE COMMISSIONER: Is the source of what you have just 17 read from your notes -- 18 19 MR AGIUS: Yes, it came from a document. 20 21 THE COMMISSIONER: Yes. Why don't you just tender the 22 document on some suitable occasion which is probably not 23 now? 24 25 MR AGIUS: Q. Has the MBA adopted any programs in an 26 effort to address the state of workplace health and safety 27 in the construction industry in the ACT since you have -- 28 29 THE COMMISSIONER: I reject that. 30 31 MR AGIUS: I am sorry? 32 33 THE COMMISSIONER: I am sorry, complete the question, 34 "since you have"? 35 36 MR AGIUS: Q. Since you have been working for the 37 ACT Branch of the MBA? 38 39 THE COMMISSIONER: I reject that. 40 41 MR AGIUS: With the greatest of respect, Mr Commissioner, 42 I'd like it recorded that, in our view, our examination of 43 this witness has been foreclosed against our wishes and 44 that we are being denied procedural fairness in that 45 regard. 46 47 THE COMMISSIONER: The hearing is adjourned until 10am on


1 Monday and you can resume your examination of Mr Nikolic 2 then. 3 4 MR DOCKING: Commissioner, I assume I can be excused in 5 the circumstances? 6 7 THE COMMISSIONER: You can be excused if you wish to be, 8 yes. Does anyone else have any business to transact this 9 afternoon? 10am on Monday. 10 11 AT 3.26PM THE COMMISSION WAS ADJOURNED TO MONDAY, 27 JULY 12 2015 AT 10AM 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47


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€¦ · Web viewROYAL COMMISSION INTO TRADE UNION. GOVERNANCE AND CORRUPTION. Level 1, 12 Moore Street, Canberra City, ACT. On Thursday, 24 July 2015 at 10.10am (Day 10