Web view46 training levy and the word "levy" was used by you several. ... Yes. I worked for Alstom Power in construction; prior. 41 to that was ABB. 42

ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION

Level 19, 55 Market Street, Sydney, NSW 2000

On Thursday, 15 October 2015 at 9.30am (Day 4)

AWU OCTOBER

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

Counsel Assisting: Mr J Stoljar SC and Mr R Scruby

Instructed by: Minter Ellison, Solicitors

.15/10/2015 AWU OCTOBER 386 Transcript produced by DTI CORRECTED

1 THE COMMISSIONER: Yes, Dr Hanscombe? 2 3 Q. Just before you begin, Mr Gilhome, you appreciate that 4 the oath you swore yesterday binds you again today? 5 A. Yes. 6 7 <MICHAEL GILHOME, on former oath: 8 9 <EXAMINATION BY DR HANSCOMBE CONTINUING: [9.30am] 10 11 DR HANSCOMBE: Q. Can you see me over there? 12 A. Yes, sort of. 13 14 Q. Is that better? 15 A. Yes, that's fine. 16 17 Q. Thank you. I think when we finished last night you 18 had told the Commission, in broad terms, about the kind of 19 changes that were brought in at ACI Glass and in which you 20 and Cesar Melhem were involved. That's a very broad 21 overview but I just want to orientate you back in time. 22 A. Yes. 23 24 Q. I think I already asked you, it's the case, isn't it, 25 that much of this was about introducing new technology? 26 A. Yes. Well, the glass industry is high skill, 27 high technology which are the barriers of entry, so it's 28 a classic industry along those lines. 29 30 Q. That was one of the problems that you needed to 31 confront to introduce the new technology was to reorientate 32 the workers in terms of broadening their skills and getting 33 them to pick up some of the maintenance work? 34 A. Yes, certainly. 35 36 Q. How long did that process take, roughly? 37 A. The process from -- 38 39 Q. Shall we call it the old regime, the strict 40 demarcations, the low skills work on this machine for 41 30 years to the final outcome you achieved, which was 42 a flexible workforce with new technology? Can I call that 43 the change? 44 A. Yes, okay. Well, it commenced with the Spotswood 45 dispute, in essence, even though it was with the 46 metal trades. 47

.15/10/2015 AWU OCTOBER 387 M GILHOME (Dr Hanscombe) Transcript produced by DTI CORRECTED

1 Q. Yes. 2 A. And it ended - well, it didn't quite end when 3 I retired but it was certainly just about completed at 4 Spotswood, if my memory is correct, I think I remember the 5 G7 training finally being completed in my final year or 6 very close to it. In terms of other plants, they would 7 have been variance back from there to some extent, and 8 I couldn't tell you exactly where they were, but it was 9 well cemented in. My assumption would be that within 10 another year, I'm guessing a little bit here, but within 11 another year it should have been cemented and completed in 12 all the plants. 13 14 Q. Let's just stick with what you personally know, that's 15 Spotswood. That is a period of some, what, four or five 16 years, something of that nature? 17 A. Well, the dispute was in 1996. 18 19 Q. Yes. 20 A. The middle of 1996, I think it was, and of course 21 we're talking from - there was some - as I say, there were 22 a couple of years after that where we had discussions with 23 the workforce and the ACTU and trident relations and we 24 were talking to the maintenance people, particularly the - 25 mainly the CEPU, about continuing hand over of work, 26 getting out of the thing. That took probably a couple of 27 years, sort of thing, and then we were doing the competency 28 standards across the board, that was part of the agreement, 29 that was going to go across the board and we then obviously 30 were going to start talking to the glass workers, once we 31 got that underway, about their career paths and competency 32 training, et cetera, and the fact that they had to pick up 33 the work that was non-core work. 34 35 Q. You retired in 2005; is that right? 36 A. 2006, I think it was. 37 38 Q. 2006? 39 A. Yes. 40 41 Q. So it was something like possibly as much as 42 10 years -- 43 A. Yes. 44 45 Q. -- from the beginning of the problem to finally seeing 46 that change implemented and a modern, highly skilled 47 workforce in place. Do you agree with that?


1 A. Yes. 2 3 Q. It was quite a long and difficult process? There were 4 a lot of things to be brought into the mix and changed. Do 5 you agree with that? 6 A. Absolutely. 7 8 Q. How would you describe the involvement of Mr Melhem in 9 that change? 10 A. Well, he was critical to it because he had the 11 capacity to grow with the experience and understand what 12 career paths were necessary. He had the capacity to 13 coordinate with all his senior delegates, I suppose, across 14 the country when we were talking about the definitions that 15 we were writing and understand that. He had the capacity 16 to argue that we should be looking at the full impact of 17 technology in terms of manning and that's why we did 18 a manning - we would have done one anyhow, and he became 19 integral to the whole process and, of course, he enjoyed, 20 as far as I could see, the full confidence of all the 21 stewards, particularly at Spotswood, but across the board 22 because they would ring him with particular queries because 23 they'd sort of say to me from time to time, "I've got to 24 talk to Cesar about that", you know, that's how I know; so 25 he was pretty integral to the whole thing. 26 27 Q. Integral to the whole thing? 28 A. Yes. 29 30 Q. That was over a period of years also, was it not? 31 A. Yes. Well, that's over the same 10-year period. 32 33 Q. Yes. 34 A. Now, towards the end of that period he wouldn't have 35 had the same degree of involvement as early and into the 36 middle, of course. 37 38 Q. Yes. He committed, did he not, over that period of 39 10 or so years, a lot of time to helping that change 40 process occur? 41 A. Yes. 42 43 Q. His time? 44 A. Yes. 45 46 Q. He committed a lot of the Union's time in terms of the 47 Union's support for what he was doing?


1 A. Yes. 2 3 Q. He incurred significant expenses; I think you've said 4 he travelled around the country? 5 A. Well, he was the glass industry coordinator and by 6 that I'm talking for the AWU, not -- 7 8 Q. Yes, I follow that. 9 A. And we had raised that issue with the AWU, 10 Steve Harrison at the time and I think Bob Smith, that we 11 needed to have someone who could coordinate the industry. 12 We wanted to keep our identity. He was made that before we 13 really got into the nitty-gritty. That was just some time 14 after the thing and consequently, he - at that time he was 15 an organiser with the Vic Branch and -- 16 17 Q. At the start? 18 A. At the start, yes, and I can't remember when, but then 19 he became Assistant Secretary and I think he became the 20 Secretary just before I retired, or a bit before I retired; 21 I'm pretty sure that was the case. 22 23 Q. But right through that progression that he had inside 24 the Union's internal structure, he continued to assist in 25 your change process with the glass workers? 26 A. Yes, absolutely. 27 28 Q. And, as I say, that involved a significant expenditure 29 of not only time but also expenses? 30 A. Well, yes, because we were travelling all over 31 Australia. What it was I wouldn't know, but we were 32 travelling right across Australia, with plants in every 33 State, virtually. 34 35 Q. And the Union was supporting those expenses incurred 36 by Mr Melhem during that time? 37 A. Well, I assume so, yes. 38 39 Q. Yes. Well, you weren't paying for them? 40 A. No. No, I wasn't. 41 42 Q. But you were conscious, weren't you, that there had 43 been significant expenditure to help you in this process? 44 A. Yes, it was obvious. 45 46 Q. How many plants did you have nationally that you had 47 to visit?


1 A. Perth, Brisbane, Adelaide, Penrith, Spotswood. Five. 2 3 Q. Where were they? 4 A. Perth, Adelaide, Brisbane, Spotswood in Victoria and 5 Penrith in New South Wales. 6 7 Q. So far as Mr Melhem remembers, there was something 8 like a total around the country of 800 AWU workers employed 9 in those five plants, does that sound right? 10 A. That sounds roughly right to me, yes. 11 12 Q. He visited all of those plants? 13 A. He did. 14 15 Q. And more than once, numerous times? 16 A. Yes. 17 18 Q. You went with him? 19 A. On some occasions, yes, because we were having 20 negotiations or joint meetings with the workforce, 21 et cetera, not mass meetings, and on some occasions he 22 would go out and talk to the delegates and have a mass 23 meeting to explain what was going on, et cetera, et cetera, 24 on his own. You know, I wouldn't be involved in that. 25 26 Q. But you knew he was doing it? 27 A. Oh, yes, we knew when he was going out, yes. 28 29 Q. And he was liaising back to you, "This is how far 30 we've got, this is what we're attempting to do", and so on? 31 A. Yes. 32 33 Q. Would it be fair to describe during the change period 34 your relationship with Mr Melhem in that process as a kind 35 of a partnership, you were working together for a common 36 aim? 37 A. We were, and as far as I was concerned, it was 38 a win win all round if we did it well. That is what it was 39 all about. 40 41 Q. And you did ultimately do it well because the glass 42 workers wound up with a much better career structure? 43 A. Absolutely. 44 45 Q. We talked briefly yesterday about a trade union 46 training levy and the word "levy" was used by you several 47 times and that's what you understood was being sought by


1 Mr Melhem from you as part of supporting his efforts? 2 A. Yes. 3 4 Q. Yes? 5 A. Yes. 6 7 Q. And you understood that what was being asked of you 8 was to contribute to that training levy, or he says 9 "leave", to assist the Union to develop itself as 10 a training facility? 11 A. Yes. Yes. 12 13 Q. Yes? 14 A. Yes. 15 16 Q. When you agreed to pay the amounts of $160,000 for 17 each of three years, broken up in the first year into two 18 invoices, but that's what the totals are, in part you were 19 making those contributions you had agreed to make towards 20 the training levy leave establishment; correct? 21 22 MR STOLJAR: Commissioner, I haven't been taking any 23 objection, but long, leading questions to a friendly 24 witness, in my submission, lead to evidence of little 25 weight. I just put my friend on notice that that 26 submission may be made in due course. 27 28 DR HANSCOMBE: This witness is not a witness with whom 29 I have had any contact other than yesterday in the witness 30 box. I don't know why he should be described as 31 "friendly." I am happy to rephrase the question. 32 33 Q. Mr Stoljar yesterday took you to some invoices for 34 what was described as paid education leave; do you recall 35 that? 36 A. Yes. 37 38 Q. There were two of them of about $80,000 each; do you 39 recall that? 40 A. Yes. 41 42 Q. And there were two of them of $160,000-odd each, do 43 you recall that? 44 A. Yes. 45 46 Q. Those four invoices are the invoices that I want to 47 ask you about.


1 A. Right. 2 3 Q. Why did you get those invoices paid? What did you 4 think you were paying for? 5 A. Well, we were paying for training, Union training, 6 but, as I said to Mr Stoljar, answering his questions, 7 there were a whole range of things that we were mindful of 8 and that was that we saw Cesar Melhem as integral to 9 remaining coordinator. We saw that the AWU at some stage 10 may wrap up all the branches and their identity could go 11 and that would be terrible in terms of the effect on the 12 company getting their part of the bargain, if you like, if 13 the process stalled, that being the productivity, and, yes, 14 we were conscious that, yes, there were expenses incurred 15 by the Victorian Branch in that arrangement and they were - 16 that was the gamut of reasons that, you know, we agreed to 17 support the Union in their training initiatives if they 18 supported us, and that's being to continue on until we at 19 least got everything pretty well cemented through the 20 plants. 21 22 Q. As you told the Commission in your evidence, they did 23 support you -- 24 A. They did, yes. 25 26 Q. -- in your training efforts? 27 A. Yes, they did. 28 29 Q. And the support was significant? 30 A. Well, it was significant in the sense that we were 31 doing it properly as per a competency approach and we 32 weren't cutting corners and the Union accepted that. 33 34 Q. And in return, you regarded yourself as supporting 35 their training initiative? 36 A. Yes, sure, sure. 37 38 Q. Mr Stoljar asked you yesterday what contractual 39 obligation did you have to pay those invoices. Do you 40 remember being asked that? 41 A. Yes. Yes, probably, yeah. 42 43 Q. That isn't how you thought of it, is it? 44 A. No. 45 46 Q. How did you think of it? 47 A. Well, as I said, I thought of it in the light of


1 a partnership where we were supporting their training and 2 they were supporting ours; that's what I said yesterday. 3 4 Q. Yes. And Mr Stoljar also said to you that this was 5 about buying industrial peace, wasn't it. Do you recall 6 that? 7 A. Yes. 8 9 Q. There was no threat to your industrial peace during 10 this change process, was there, from the AWU? 11 A. No. 12 13 Q. On the contrary. 14 A. No, that's right, there was never any threat of 15 industrial peace -- 16 17 Q. From the AWU? 18 A. Of industrial action against us from the AWU. 19 20 Q. From the AWU? 21 A. Yes. 22 23 Q. You might have had problems with the metalworkers and 24 the electricians -- 25 A. Yes. 26 27 Q. -- but you never had a threat of industrial 28 disruption? 29 A. No, and I've got to say, even with the metalworkers, 30 as we got into their side of the thing and developed it, 31 they didn't - they started to cooperate too fairly well. 32 33 Q. Yes, because they also began to see the benefits -- 34 A. Yes. 35 36 Q. -- of their members having a broader skills base? 37 A. That's right, and getting into more planned and 38 predictive maintenance. 39 40 Q. Yes. In fact, this was the opposite to buying 41 industrial peace, I put to you? 42 A. Oh, absolutely. 43 44 Q. Mr Melhem never said anything to you about this being 45 some sort of secret arrangement, did he? 46 A. No. 47


1 Q. Never? 2 A. No. 3 4 Q. No. I don't know if you know this, but he used 5 a formula to compute the $160,000 which was 10 cents per 6 member, in essence. Did you know that? 7 A. I'm not - I can't remember the detail of that, to be 8 honest. 9 10 Q. Okay. 11 A. I can't say I did or I didn't; it doesn't immediately 12 come to mind. 13 14 Q. It doesn't come to mind? 15 A. No. 16 17 Q. What did you think about the quantification of the 18 invoices, or did you think nothing in particular? 19 A. Well, I knew - I knew what the overall amount was 20 going to be -- 21 22 Q. Right. 23 A. -- because he'd advised that. 24 25 Q. Yes. 26 A. And consequently, I knew it was a levy on the 27 membership back then. 28 29 Q. A levy on the membership - you mean computed -- 30 A. Yes, the Containers Branch, yes. 31 32 Q. Computed on the membership? 33 A. Yes. 34 35 Q. Worked out by a number? 36 A. Yes, yes, I assume so. 37 38 Q. Is that what you mean by "on"? 39 A. Yes, it was computed on the membership, yes, yes, 40 that's right. 41 42 Q. Yes. You don't mean it was a levy the members were 43 paying? 44 A. No. No, no, no, no. 45 46 Q. Right. I just want to be clear about that. 47 A. No.


1 2 Q. It wasn't a levy imposed on the members? 3 A. No. 4 5 Q. No, but it was computed by reference to the number of 6 members? 7 A. Yes. Yes. 8 9 Q. You did know that? 10 A. Yes. I didn't know that in overall terms. I must 11 admit I wasn't clear on that when I first appeared here. 12 13 Q. No. Well, I am going to come to when you first 14 appeared here, so that is probably as good a time as any. 15 You did appear here and you were examined in a private 16 hearing? 17 A. That's right. 18 19 Q. How much notice did you have that that private hearing 20 was going to occur? 21 A. I was told very little. I was told to come - that the 22 Commissioner and Mr Stoljar wanted to have a chat to me. 23 24 Q. Right. 25 A. That's all I was told. 26 27 Q. How far ahead of the private hearing did that occur? 28 A. I can't really remember but it was a fairly short 29 period of time. 30 31 Q. Weeks? 32 A. Oh, less than that, I think. 33 34 Q. Days? 35 A. It was days from - I think, yes. 36 37 Q. Were you told -- 38 A. It wasn't a long period of time. 39 40 Q. Not a long period of time? 41 A. No. 42 43 Q. Were you told what they wanted to examine you about? 44 A. No. 45 46 Q. Were you given any documents? 47 A. No.


1 2 Q. Did you have any documents at home from your time at 3 ACI? 4 A. No. 5 6 Q. Did you have anything to refer to about what had 7 occurred at ACI at the time? 8 A. No, other than my CV, I've got that. 9 10 Q. A CV? 11 A. Yes, I had CVs, but I haven't got any documents - 12 I hadn't read any documents for 10 years or nine years back 13 then, or whatever. 14 15 Q. And you didn't keep any documents -- 16 A. No. 17 18 Q. -- when you left ACI? 19 A. No. 20 21 Q. Did you know that your private hearing was about ACI? 22 A. Yes. 23 24 Q. What else did you know about your private hearing 25 before you came? 26 A. That the Commissioner and Mr Stoljar wanted to have a 27 chat to me, that's the way it was -- 28 29 Q. That was it? 30 A. That's what I was told. I didn't even - to be honest, 31 I didn't know I was going to be in a witness box. I was 32 naive perhaps about that but I didn't realise that. 33 34 Q. Nobody said, "We want you to come to a hearing", they 35 said, "Come and have a chat"? 36 A. They said the Commissioner and Mr Stoljar would like 37 to have a chat to me. 38 39 Q. Okay. It had been something like nine or 10 years? 40 A. At least nine years, yes. 41 42 Q. How would you describe your memory of the events at 43 ACI at the time you were in the private hearing, not now 44 but then? 45 A. Well, look, I could recollect some basic themes and 46 stuff like that about the broadbanding, et cetera, but 47 I couldn't really say that I was valid in my recollections


1 of durations and dates and what happened specifically in 2 agreements and stuff like that. 3 4 Q. When you came here yesterday into the witness box, 5 what was your state of memory about events at ACI back 6 then, yesterday? 7 A. Well, all I could - I was given a couple of weeks 8 notice that I was needed to come here and I was told that 9 that was to put my evidence on the public - in public, if 10 you like, the public record, and I obviously thought about 11 the sorts of things that I had been asked as best I could. 12 13 Q. Right. 14 A. But I didn't have any material to refer to or I just 15 thought about what I'd been asked and, you know, some 16 things came back, some things didn't. 17 18 Q. How would you describe your memory of those events 19 yesterday compared with in the private hearing? 20 A. Oh, I'd say it was better. 21 22 Q. Yes. Why? 23 A. Well, because I'd been able to think about it and 24 I knew some of the issues that they were talking about, 25 talking to me about, which I didn't really think about or 26 know in any fulsome manner before that. 27 28 DR HANSCOMBE: Excuse me just a moment, Commissioner, if 29 you would? 30 31 THE COMMISSIONER: Yes, certainly. 32 33 DR HANSCOMBE: Q. I am sorry to jump around, I had 34 forgotten one topic. Go back, if you would, to the time 35 when you were at ACI and the invoices were coming in, one 36 a year, or two in the first year for $160,000, can we go 37 back to that time, and Mr Stoljar put to you that you never 38 told the members that these payments were being made. Do 39 you remember he asked you that yesterday? 40 A. Yes. 41 42 Q. There was no need to tell the members, was there, they 43 weren't going to pay? 44 A. No, no, that's true, but it was none of my concern. 45 46 Q. And in no way were those payments adverse to any 47 interest of the members?


1 A. Definitely not. 2 3 Q. And they weren't false in any sense either, were they? 4 A. Not as far as -- 5 6 Q. You knew what was happening and they -- 7 A. I knew what was happening and I've described that 8 ad nauseam now. 9 10 Q. And they reflected exactly what you understood you 11 were agreeing about with Mr Melhem? 12 A. Yes. 13 14 Q. So in no sense were they false? 15 A. Well, not in that sense, no, definitely not. 16 17 Q. No sense? 18 A. Well, in no sense no, okay. 19 20 DR HANSCOMBE: If the Commission please. 21 22 THE COMMISSIONER: Yes. Mr Cash? 23 24 MR CASH: If the Commissioner pleases. 25 26 <EXAMINATION BY MR CASH: 27 28 MR CASH: Q. Mr Gilhome, my name is Cash, I represent 29 Mr Robinson. Mr Gilhome, do you recall ever having any 30 discussion with Mr Neil Cooper in relation to the payment 31 of any of the invoices that you were shown yesterday from 32 the AWU? 33 A. Not in any detail, no. I'm not saying I didn't 34 see Neil Cooper -- 35 36 Q. I am sorry, do you have any recollection of 37 a discussion or do you not? 38 A. No, I don't. 39 40 Q. If I ask you to assume that Mr Cooper has given 41 evidence in this Commission that he recalls that he did 42 have a discussion with you on at least one occasion in 43 which you told him that you were sending down some invoices 44 and that they were regarding paid education leave and the 45 payment was required within a certain timeframe, is it 46 possible that that discussion occurred? 47 A. Yes.

.15/10/2015 AWU OCTOBER 399 M GILHOME (Mr Cash) Transcript produced by DTI CORRECTED

1 2 Q. Mr Gilhome, were you friends with Mr Melhem, would you 3 describe yourself as a friend? 4 A. Yes, I would, yes. 5 6 Q. You attended the football with him? 7 A. Occasionally, as I did with other officials and other 8 company people. 9 10 Q. When you did so that was in the ACI box at the 11 football? 12 A. Yes. Yes. 13 14 Q. Mr Gilhome, you have given at various stages a number 15 of different descriptions of the purpose of these payments 16 and I am cognisant of what you have said in evidence this 17 morning in response to my learned friend's questions about 18 your state of memory when you were here at the private 19 hearing, just bearing that in mind but moving on from it, 20 you have said at various stages, as I have a record of, or 21 that has been put to you, that the purpose of the payment 22 was for paid education leave and that was what's on the 23 invoices themselves, of course. Do you agree with that? 24 A. I may have but what I'm actually saying is that it was 25 for training and I ended up saying that to both -- 26 27 Q. Yes, I understand that. Do you agree that the 28 invoices on their face say that they are for paid education 29 leave? 30 A. It may well have, yes. 31 32 Q. I'm sorry, would you like to see them again? 33 A. No, no, that's fine. 34 35 Q. So you agree that they said "paid education leave"? 36 A. Okay, yes, yes. 37 38 Q. You have said, in general terms, at the private 39 hearing that the purpose was to assist the AWU to defray 40 expenses? 41 A. Well, what I said - I did say that but what I was 42 meaning by that is we knew that there were expenses 43 incurred by the Vic Branch and I've explained why, and that 44 by assisting them with the training, that was in part 45 another reason why we were prepared to do it. 46 47 Q. And perhaps along similar lines, you said in evidence


1 yesterday - and I'm sorry I don't have a direct quotation 2 but you will tell me if my summary is incorrect - that the 3 purpose was to discourage, that's my word, the AWU from 4 reallocating Mr Melhem to some other task or from promoting 5 him to another function or role, or for wrapping up the 6 Branch, I think was the expression you used this morning, 7 but essentially to keep things on track? 8 A. It's true to keep things on track. I think what 9 I said was that we would have an argument in supporting 10 them with training, they had to support us and Cesar Melhem 11 and the Branch structure, as it stood for as long as we 12 could, it was in everyone's interest and certainly our 13 interest to maintain that as long as we could, so that was 14 part of the reason. 15 16 Q. Thank you. You said yesterday that it was a levy for 17 a proposed AWU training facility? 18 A. Well, it was a training levy on the Containers Branch. 19 20 Q. But the purpose of that levy was to fund a training 21 facility that the AWU proposed to set up? 22 A. Well, I'm assuming that that's the case. We were 23 looking at training and I was aware that they were setting 24 up a facility. 25 26 Q. I am sorry but I believe that you said yesterday that 27 that was what Mr Melhem had told you, is that not the case? 28 A. Well, I was aware of the general thing, but our main 29 interest was we were supporting the training. 30 31 Q. I see. You said at the private hearing - and I don't 32 think that you have said otherwise at any stage - that it 33 had nothing to do with the EBA? 34 A. That's right. 35 36 Q. You said at the private hearing that you assumed that 37 the purpose of the payment was related to broadbanding, 38 which is perhaps related to the earlier points but slightly 39 different? 40 A. Sorry, I don't understand the question. 41 42 Q. I am sorry, let me repeat the question. At the 43 private hearing, in answer to Counsel Assisting's question, 44 you said at one stage that you assumed that the purpose of 45 the payments to the AWU was for broadbanding? 46 A. I'm lost, sorry. 47


1 Q. All right. Could the witness be shown I think it's 2 MFI-1 Gilhome. 3 A. Yes. 4 5 Q. Page 39. 6 A. Yes. 7 8 Q. You were asked at line 12: 9 10 ... this is a very large sum of money, 11 isn't it, Mr Gilhome, what we were dealing 12 with in terms of our expenses with 13 broadbanding and the like? 14 15 A. Yes. 16 17 Q. Do you recall that? 18 A. Yes, I do. 19 20 Q. Lower on that page, at line 37, Counsel Assisting 21 asked you: 22 23 What were you ... 24 25 And I assume he meant by that ACI: 26 27 What were you getting for your money? 28 29 You said: 30 31 I don't know. 32 33 What I am putting to you, Mr Gilhome, is that there are 34 a variety - and they are certainly overlapping, to some 35 extent - of different explanations that you have provided 36 at different times to this Commission as to the purpose for 37 these payments. Do you agree that that's the case? 38 A. No, I don't. 39 40 Q. Yesterday, Mr Gilhome, you gave evidence that you 41 discussed the making of these payments with Mr Robinson? 42 A. That's right. 43 44 Q. You said - and this is at page 361 of the transcript - 45 that you spoke to him about the concept? 46 A. What page? 47


1 Q. It should be in front of you at line 12. 2 A. Yes. 3 4 Q. You were asked then by Counsel Assisting: 5 6 Are you guessing or do you have a memory of 7 that? 8 9 Your answer was: 10 11 No, I know. 12 13 Do we take it from that that your answer was you weren't 14 guessing, that you do have a recollection of that 15 discussion? 16 A. I have a recollection that I definitely discussed this 17 matter with Mr Robinson. I can't say that I recollect 18 exactly what was discussed. 19 20 Q. All right. Let's perhaps see what you do recollect. 21 When you say you spoke to him about the concept -- 22 A. Yes. 23 24 Q. -- which concept? Which of the matters that I put to 25 you did you discuss with him? 26 A. Well, it would have been all of that. 27 28 Q. I'm sorry, could you answer from your recollection 29 what you said rather than what would have occurred? 30 A. Well, I would have said that -- 31 32 Q. I'm sorry, could you answer from your recollection 33 what was said, not what you now believe would have 34 occurred? 35 A. Well, I would have -- 36 37 Q. I'm sorry -- 38 A. My recollection is I would have said -- 39 40 Q. I'm sorry, I'm going to ask you to try very hard and I 41 know it's difficult, it's a long time ago, but you have 42 given evidence that you have a recollection of this 43 discussion. What I'm interested to know is what is that 44 recollection, not what you now believe occurred? 45 A. I had a recollection that I had discussed this issue 46 with Mr Robinson, that's what I was referring to. 47


1 Q. Yes. 2 A. I know that. 3 4 Q. Right. 5 A. And I know that the elements of that discussion would 6 have been as I have outlined. 7 8 Q. How do you know that? 9 A. Because those elements were discussed generally anyhow 10 and reiterated from time to time, and certainly Mr Robinson 11 would have understood the desirability of making sure that 12 we continued on with the broadbanding and got our bit of 13 the action out of it, if you like, our productivity; that's 14 what it was all about from our viewpoint. 15 16 Q. So that's your reconstruction of what you believe 17 occurred? 18 A. Yes, it would have been in that -- 19 20 Q. What do you actually remember? 21 A. I don't remember the specifics of what I would have 22 said to him. 23 24 Q. Let's not focus on what you don't remember, 25 Mr Gilhome, may I ask -- 26 A. Well, I've told you what I -- 27 28 Q. -- let's focus on what you do remember? 29 A. I've told you what I've remembered, the elements of 30 what would have been, I believe, discussed. 31 32 THE COMMISSIONER: Q. Mr Gilhome, it is best if you wait 33 for Mr Cash to stop talking and I am sure he'll pay you the 34 courtesy of not interrupting your answers. 35 A. Okay. 36 37 MR CASH: If the Commission pleases. 38 39 Q. A moment ago, Mr Gilhome, you agreed with me that what 40 you had told the Commissioner was your reconstruction of 41 what had occurred, not your memory. What I am interested 42 to understand is what actually you do recall. Perhaps we 43 can take it a different way. Where did this discussion 44 take place? 45 A. It would have been in his office. 46 47 Q. I'm sorry --


1 A. Well, I don't know specifically but it would have been 2 in his office. 3 4 Q. Well, you don't know? 5 A. I don't know really, no. 6 7 Q. So you do not recall where it took place? 8 A. But normally the discussions I had with Mr Robinson 9 were in his office. 10 11 Q. Mr Gilhome, it doesn't assist the Commissioner to know 12 what normally might have occurred. I don't know that there 13 is too much normal about this, may I say. The Commissioner 14 I think is interested to know what you can recall and is it 15 the case, do we take it, that you do not recall where that 16 discussion took place? 17 A. I believe - well, I can't say specifically. I don't 18 recall all the details, but I believe the discussion would 19 have been in Mr Robinson's office. 20 21 Q. On what basis do you believe that? 22 A. Because that's where I normally spoke to him. 23 I'd make an appointment and see him about particular 24 matters that I need to report to him about. 25 26 Q. But you don't have a recollection of that discussion 27 occurring in a particular place? 28 A. No, not really. I mean -- 29 30 Q. No. All right. When did it take place? 31 A. I don't know. I don't have a clear recollection of 32 that. 33 34 Q. Was there one discussion before the first payment was 35 made or were there three discussions before each payment 36 was made? 37 A. There would have been discussions about the - before 38 the payments were made and then, as far as I was 39 concerned - well, I know, I was authorised to be able to 40 then take that to the accountants and I assume Mr Robinson 41 spoke to the accountants about that. 42 43 Q. I am sorry, I don't mean to interrupt, but it is not 44 helpful if, when I ask you what you recall, you say what 45 would have occurred and what you assume occurred? 46 A. Mmm. 47


1 Q. I know it is extremely difficult, but please just tell 2 us what you do remember. 3 A. Well, I can't - I can't tell you I remember. 4 5 Q. Can I ask you a different way. Do you recall one 6 discussion, do you recall two discussions or do you recall 7 three discussions? 8 A. I would have - oh - I think it would have been two 9 discussions. 10 11 Q. Well, you don't know, though, do you? 12 A. No. No, I think that's the case. 13 14 Q. You recall that there was one discussion but you don't 15 recall if there were two discussions, so let's perhaps 16 assume for the purposes of this discussion there was one. 17 If there was one discussion then how much money did you 18 tell Mr Robinson it was proposed that ACI pay to the AWU? 19 A. The 150,000 or 160,000, that was certainly discussed; 20 that was the figure. 21 22 Q. $160,000? 23 A. 150,000, 160,000, yeah. 24 25 Q. So if, in fact, there was only one discussion, it 26 follows that there were no discussions about the remaining 27 $340,000-odd? 28 A. But there wasn't only one discussion. 29 30 Q. I'm sorry, you -- 31 A. I said my recollection is that I would have had at 32 least two discussions. I would have had discussions about 33 the overall amount of money that was going to be levied. 34 35 Q. Did you tell Mr Robinson over what period payments 36 were to be made? 37 A. No, I didn't - I didn't. 38 39 Q. Did you tell him how the amounts to be paid were to be 40 calculated or had been calculated? 41 A. No, probably not, no; no, I'd say no. 42 43 Q. Did you show him any agreement or other paperwork that 44 was to be the basis of these payments? 45 A. No. 46 47 Q. Is that because there was no paperwork?


1 A. No, there was no paperwork. 2 3 Q. Did you suggest to him that there was an agreement 4 that had been made that formed the basis for these 5 payments? 6 A. No. I said to him that this is the request, this is 7 the reason and they're the reasons, and we either accepted 8 it or we didn't. 9 10 Q. What did you tell Mr Robinson ACI was getting for its 11 money? 12 A. Exactly what I have outlined already. He knew what we 13 were getting for our money. 14 15 Q. I put it to you, Mr Gilhome, that what you have 16 outlined already is a farrago of different propositions. 17 What I would like you to attempt to do, if you can, is to 18 tell us now what you recall telling Mr Robinson ACI was 19 getting for its money? 20 A. Well, I can't tell you exactly what I recall. I spoke 21 to him about it in that sense but I can tell you -- 22 23 Q. I am sorry to interrupt but do I take it from that 24 that answer that you don't recall what you told him? 25 A. I don't recall all the detail of what I told him, no, 26 I said that from the start. I don't remember the specifics 27 of the discussion. 28 29 Q. Do you recall anything of what you told him as to the 30 purpose for these payments? 31 A. Yes. I recall that we had talked about the need to 32 have Cesar Melhem and the AWU as a coordinator to see 33 through our journey for the career development of 34 broadbanding and to ensure that we picked up all the 35 benefits that we wanted to get and that was integral to the 36 whole thing, we all knew that. 37 38 Q. What was Mr Robinson's response to the proposal that 39 ACI pay be it $160,000, be it $500,000, to the AWU over 40 a period of three years for that purpose, how did he 41 respond to that proposition? 42 A. Well, he agreed, but I'm not saying he agreed in that 43 manner. I mean, these payments were over actually about 44 a 10-year period. They were for a 10-year period, if 45 you're looking at broadbanding. I mean what I'm saying is 46 that we started in Spotswood in 1996, so the broadbanding, 47 give a couple of years, started from there through to about


1 when I retired, basically. That was part of the rationale. 2 I've already stated what the other aspects of the rationale 3 were and Mr Robinson was across all that argument. 4 5 Q. I am sorry, Mr Gilhome, are you saying that the 6 payments in relation to broadbanding, the purpose of which 7 you've outlined in your evidence at various stages, 8 actually began some time well before 2003? 9 A. No, I'm not saying that. 10 11 Q. I'm sorry? 12 A. But I'm saying that if you look at the expenses, 13 for instance, that the Vic Branch had, they began a lot 14 earlier and I was cognisant of that and so was the company. 15 The company was the one that asked for a coordinator. It 16 was integral and quite clear to us all that we had to have 17 continuity when we were rolling out through the plants, 18 I mean, they're all the reasons why, and we wanted to go 19 into partnership, if you like, that's the way I saw it, 20 a partnership with the AWU, support their training, and 21 they would support ours. 22 23 Q. Mr Robinson, yesterday you gave evidence that -- 24 25 DR HANSCOMBE: It is Mr Gilhome. 26 27 MR CASH: Q. Pardon me. Yesterday you gave evidence that 28 Mr Robinson told accounts to pay the invoices. Do you 29 recall saying that? 30 A. Not really but I'll accept that I did. 31 32 Q. Was that an instruction that he gave in your presence? 33 A. No, I don't think he did. 34 35 Q. How do you know he did that? 36 A. Because there's no way that the accounts would have 37 processed the documentation that I put down unless he had 38 given them a heads-up about that. 39 40 Q. That's your belief? 41 A. That's my knowledge. 42 43 Q. I'm sorry -- 44 A. Well, that's my - that's a clear understanding I would 45 have; I'm not in a position to do otherwise. 46 47 Q. Mr Gilhome, did you at some stage undertake a study


1 tour of glassworks on behalf of ACI? 2 A. Yes. 3 4 Q. When was that? 5 A. I can't remember, but it was probably mid 2000s. 6 7 Q. You visited Europe? 8 A. Yes. 9 10 Q. You visited the United States of America? 11 A. Yes. 12 13 Q. How long was that trip? 14 A. It would have been a couple of weeks. 15 16 Q. You were accompanied by Mr Melhem? 17 A. Yes. 18 19 Q. ACI paid for that trip? 20 A. Yes. 21 22 Q. Do you know how much it cost? 23 A. No. 24 25 Q. Would it surprise you if it cost in excess of 26 $130,000? 27 A. I didn't - I don't know. 28 29 Q. You don't recall -- 30 A. I didn't know what the cost of the trip was. 31 32 Q. You don't recall being carpeted after your return when 33 you put in your expenses? 34 A. No, definitely not. 35 36 Q. Did you also visit Lebanon in the course of that trip? 37 A. Yes. 38 39 Q. Are there any glassworks in Lebanon? 40 A. No. It was on the way back. 41 42 MR CASH: I have no further questions. 43 44 THE COMMISSIONER: Yes. Ms Doust, yesterday you said you 45 had no questions. Is that still the position? 46 47 MS DOUST: I don't have any for this witness, thank you,


1 Commissioner. 2 3 THE COMMISSIONER: Mr Clelland, are you in the same 4 position? 5 6 MR CLELLAND: Yes, Commissioner. 7 8 THE COMMISSIONER: Very well. Yes, Mr Stoljar. 9 10 <EXAMINATION BY MR STOLJAR: 11 12 MR STOLJAR: Q. Can you tell us a bit more about the 13 trip that my friend was just asking you about? Who else 14 went on this trip? 15 A. It was just myself and Mr Melhem. 16 17 Q. You went to Europe first of all? 18 A. No. We went across to America to visit OI and the 19 glass plants and the headquarters, because OI had just 20 taken over, or virtually taken over ACI, and we came back 21 via Europe. 22 23 Q. And then you went to Lebanon? 24 A. Via Europe, yes, Lebanon on the way home, yes. 25 26 Q. How long were you in Lebanon for? 27 A. Oh, I don't know. Maybe a week, maybe a bit less, I'm 28 not sure. 29 30 Q. ACI picked up the tab for this trip, I take it? 31 A. Yes. 32 33 Q. Someone reproached you about it afterwards, did they? 34 A. No. 35 36 Q. You put in a bill for the trip, did you? 37 A. No. Well, I put in the expenses, yes. 38 39 Q. For yourself and Mr Melhem? 40 A. Yes. 41 42 Q. What were you actually doing in Lebanon? 43 A. Well, we weren't doing anything in particular. He was 44 just having a look at Lebanon on the way back home. This 45 is where he came from. 46 47 Q. And what, you travelled around with him, did you?

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1 A. Yes, I did. 2 3 Q. How long were you there for, did you say? 4 A. I think a week or a bit less. 5 6 Q. So a week in Lebanon? 7 A. It might have been less. 8 9 Q. How long in the United States? 10 A. I think the whole trip was about a couple of weeks or 11 maybe a little more. 12 13 Q. This is over and above the moneys that were being paid 14 for paid education leave, I take it? 15 A. Yes. Well, we would take -- 16 17 Q. To do with that? 18 A. We would take - yes, absolutely, yes. 19 20 Q. Did you prepare any report, or the like, of this trip? 21 A. No. 22 23 Q. Did Mr Melhem prepare any report or do any work for 24 you for the trip? 25 A. I'm - no, I don't think so, no. It was going over 26 just to talk to the OI people and we certainly did that, 27 and introduced him to that. 28 29 Q. Did you go on any other trips with Mr Melhem or anyone 30 else from the AWU? 31 A. Not to my knowledge. 32 33 Q. Well, search your mind. Did you go on any other 34 trips? 35 A. I went - oh, in VTR times I think I went to England 36 with Mick Eagles, an AWU organiser. 37 38 Q. What did you do in England? 39 A. We had a look at glass plants. 40 41 Q. How long were you there for? 42 A. I don't know. I can't remember. 43 44 Q. You have given evidence explanatory of these invoices 45 in a variety of different ways, I suggest to you, in this 46 Commission. One thing I understand you to be saying is 47 that you were, or ACI was, as you put it, supporting the


1 training being done by the AWU, is that what you say? 2 A. Yes. 3 4 Q. You told us yesterday that the training in respect of 5 broadbanding was not done by the AWU, it was done by other 6 providers -- 7 A. That's right. 8 9 Q. -- of training and paid for by ACI? 10 A. Yes. 11 12 Q. So the training done by the AWU had nothing to do with 13 broadbanding, did it? 14 A. No. 15 16 Q. I show you a bundle of materials that is in evidence 17 that has been marked Robinson MFI-2. Tab 7 I am going to 18 take the witness to, beginning on page 166. Behind tab 7 19 of this bundle, beginning on that page, are the materials 20 which the AWU has been good enough to supply to the 21 Commission in response to a notice to produce seeking 22 documents relating to training provided by the AWU to ACI. 23 A. Yes. 24 25 Q. You can skim through that bundle if you wish, 26 Mr Gilhome. It is from page 166 to page 238. What emerges 27 from that bundle is that AWU was only supplying training to 28 ACI in respect of OH&S and more particularly, OH&S 29 delegates' training. Do you see that? 30 A. Yes. 31 32 Q. What's more, that training was invoiced by AWU and 33 paid for by ACI; correct? The invoices aren't there, or 34 aren't all there, but I can take you to those invoices if 35 you wish. 36 A. Well, yeah, go on. 37 38 Q. Have a look at the bundle. Keep that bundle with you, 39 but a separate bundle, the Shorten MFI-12 bundle -- 40 A. Under 12? 41 42 Q. Yes. The Commissioner's tipstaff is just giving you 43 the bundle. You can start on page 1, if you like. That is 44 an invoice from the AWU for OH&S training in an amount of 45 $1,000. Go to page 3, another invoice for training for 46 OH&S, and then page 8, more training, naming the person, 47 $750. Page 9 - there is a credit note in respect of that


1 earlier invoice, and then we hit the first of the paid 2 education invoices of $79,750 that we've looked at. We can 3 keep going. Page 12, another invoice for OH&S in the 4 amount of $1,300-odd; page 14, OH&S function, and there's 5 plenty more: for example, page 40, $1,200 for OH&S 6 training. 7 A. Yes. 8 9 Q. AWU was providing training in respect of OH&S from 10 time to time over these years, that is, including the years 11 2003 through to 2005; correct? 12 A. They are. 13 14 Q. When it did so it issued an invoice in the ordinary 15 course? 16 A. Yes. 17 18 Q. And that invoice was paid by ACI? 19 A. Well, that's what it's saying, yes. 20 21 Q. In what way precisely do you say support was being 22 given in respect of this training? 23 A. Can I just make the point about -- 24 25 Q. Would you please answer my question? 26 A. Sorry. 27 28 Q. In what way precisely do you say you, by which I mean 29 ACI, was giving support - your word, "support" - for that 30 training? 31 A. Well, we were giving support to the concept of the 32 training the AWU wanted. 33 34 Q. What does that mean, Mr Gilhome? 35 A. It means, as I said, if we supported them in their 36 training initiatives that didn't necessarily encompass our 37 delegates then we expected support from them in what we 38 were doing. 39 40 Q. Support. So you just provided them with some support 41 in general terms, did you? 42 A. No, no, support - I'm talking about the financial 43 money was paid to the AWU for their training purposes and 44 not limited to ours. These particular invoices here I have 45 no knowledge of. I'd say that's been done at the plant 46 level. 47


1 Q. You say that in return you got support from the AWU? 2 A. Well, what we wanted to make sure we could do was that 3 Cesar Melhem stayed on as the coordinator. I'm going 4 through the same sort of thing, that's what I'm talking 5 about. 6 7 Q. You say Cesar Melhem was doing a good job as an 8 organiser, is that what you say? 9 A. Yes. 10 11 Q. And so you thought you'd give him, what, some sort of 12 thank you payment, is that what it was? 13 A. No. 14 15 Q. What was it then? 16 A. Well, we took him on a trip. We'd go away - you know, 17 companies did this from time to time. We'd go away for 18 a trip and show them OI, in his instance, and that's what 19 we were doing. 20 21 Q. You did that but that isn't encompassed in the 22 $160,000, is it? 23 A. No, no, no, nothing to do with it. 24 25 Q. You aren't really able to shed any further light on 26 how the $160,000 came to be calculated or why you were 27 giving it to the AWU? 28 A. No, other than what I've said. 29 30 Q. And I suggest to you that the only inference that can 31 be drawn is that you did it to facilitate or continue 32 a close and cooperative and good working relationship 33 between yourself and Mr Melhem and others at the AWU? 34 A. Well, of course we - we always had a good 35 relationship, I've never denied that. 36 37 Q. And you wanted to continue that relationship? 38 A. Of course we did. 39 40 Q. And you did that through the provision of payments of 41 this kind, namely, $160,000 a year for those three years; 42 is that right? 43 A. Yes. 44 45 Q. And you also facilitated that through overseas trips 46 of the kind that you've outlined? 47 A. Well, I suppose - yes, you could say that, yes.


1 2 Q. You told the Commissioner that you were told that you 3 were going to come to the Commission for a chat, I think 4 was the way you put it? 5 A. Yes. 6 7 Q. Can I show you a summons. You had received some 8 communication from staff at the Commission in the weeks 9 leading up to this date? 10 A. Yes. 11 12 Q. You received, on 1 July 2015, this formal summons 13 following those initial communications? 14 A. Yes, that was emailed to me, yes. 15 16 Q. Yes, and you read it when you got it? 17 A. Yes. 18 19 Q. And you saw that you had been summonsed to appear 20 before the Commission at a hearing to be held in the 21 hearing room, Level 19, to give evidence? 22 A. Yes, that's true. 23 24 Q. You knew that the evidence that you were going to be 25 giving was in relation to ACI? 26 A. Yes. 27 28 Q. And in relation to this issue of paid education leave? 29 A. Yes, yes. 30 31 Q. Because that matter had been canvassed with you? 32 A. Only in a very general sense, yes. 33 34 Q. You knew very well you weren't coming just to have 35 some sort of informal chat, didn't you? 36 A. Well, I was told that this was just part of the legal 37 requirements. 38 39 MR STOLJAR: I tender the summons, Commissioner. 40 41 THE COMMISSIONER: That will be Gilhome MFI-2. 42 43 GILHOME MFI-2 - MR GILHOME'S SUMMONS TO APPEAR BEFORE THE 44 COMMISSION DATED 01/07/2015 45 46 MR STOLJAR: Q. I asked you some questions yesterday 47 about some invoices that also appear in Shorten MFI-12,


1 page 73 and following. It was towards the end of my 2 questioning. While you were still at ACI, did you enter 3 into an arrangement pursuant to which invoices for 4 12 membership yearly fees would be issued? 5 A. Not to my recollection. 6 7 Q. Did you put that arrangement in place? 8 A. No, I don't think so. I haven't - I haven't 9 authorised any of this. 10 11 Q. These are after your time, Mr Gilhome. I'm asking you 12 to focus on the period while you were still at ACI and what 13 I'm asking you is whether you put in place an arrangement 14 pursuant to which invoices for 12 membership yearly fees 15 would be invoiced by the AWU and paid for by ACI. 16 A. No, I don't think I did. 17 18 Q. You deny that, do you? 19 A. Well, I don't recollect doing it. 20 21 Q. Mr Melhem, in his evidence, has said that those 22 invoices were also for paid education leave, that is to 23 say, invoices at 73 and following, but let's focus on 73, 24 for paid education leave but using a different 25 quantification, that is "12 memberships". What do you say 26 about that? 27 A. I have no comment to make about that. I don't know. 28 29 Q. Just before I leave Shorten MFI-12, if you come back 30 to pages 50 and 51, there are some invoices in relation to 31 accommodation and other charges for Mr Melhem? 32 A. Right. 33 34 Q. But these are in 2006. 35 A. Right. 36 37 Q. Is this the case, that after the paid education leave 38 arrangement came to an end in 2005, Mr Melhem sent through 39 invoices for charges that he'd incurred? 40 A. Well, he has here, yes. 41 42 Q. I withdraw that. Just to be clear, can you shed any 43 light on why Mr Melhem was invoicing separately for 44 expenses he'd incurred in relation to some of these 45 negotiations? 46 A. No, I can't. 47


1 Q. Because you say, in part, the 160,000 was to defray 2 his expenses, was it not? 3 A. No, I'm saying that it was to defray the expenses of 4 the Vic Branch but not in a direct sense. 5 6 MR STOLJAR: I have nothing further. Thank you, 7 Commissioner. 8 9 THE COMMISSIONER: Yes. 10 11 DR HANSCOMBE: Before the witness is excused, might I seek 12 leave to ask some questions about two topics which were new 13 since I examined the witness? 14 15 THE COMMISSIONER: What are they? 16 17 DR HANSCOMBE: The first is this issue of overseas trips, 18 which first came up in Mr Cash's examination, and the 19 second is those two invoices at pages 50 and 51. 20 21 THE COMMISSIONER: You have leave. 22 23 DR HANSCOMBE: If the Commission please. 24 25 <EXAMINATION BY DR HANSCOMBE: 26 27 DR HANSCOMBE: Q. Mr Stoljar just put to you there were 28 overseas trips, plural, with Mr Melhem. Is that right, was 29 there more than one? 30 A. No, there was only one, that I recollect. 31 32 Q. And that trip with Mr Melhem, the company was aware 33 that you were going to take him? 34 A. Absolutely. 35 36 Q. And it was authorised? 37 A. It was. 38 39 Q. It was authorised that the company would pick up 40 Mr Melhem's expenses for the trip? 41 A. It was. 42 43 Q. Can you say who authorised it? 44 A. Peter Robinson would have authorised it. 45 46 Q. Do you remember the discussion or not? 47 A. I don't remember the details of it, no. Clearly now,


1 I don't, but it was certainly authorised. 2 3 Q. Were you in a position personally to authorise picking 4 up Mr Melhem's expenses for such a trip? 5 A. No. 6 7 Q. You were shown, just before Mr Stoljar sat down, two 8 invoices after your time, from 2006. 9 A. Yes. 10 11 Q. Do you have any knowledge about reimbursing 12 Mr Melhem's expenses there? 13 A. No. 14 15 Q. At least one of them refers to expenses regarding the 16 EBA negotiations. 17 A. Yes. 18 19 Q. Do you see that? That is, I think, Shorten page 51 -- 20 A. Yes. 21 22 Q. -- although it is chopped off at the bottom. 23 A. 51, yes. 24 25 Q. The arrangement that you were giving evidence about 26 concerning supporting the training endeavours was outside 27 the EBA negotiations, was it not? 28 A. Yes. 29 30 DR HANSCOMBE: If the Commission please. 31 32 THE COMMISSIONER: Yes. 33 34 MR STOLJAR: I have nothing further, thank you, 35 Commissioner. 36 37 THE COMMISSIONER: Do you wish to have the witness 38 excused? 39 40 MR STOLJAR: Yes. 41 42 THE COMMISSIONER: You don't apprehend that after 43 Mr Melhem gives evidence there may be further areas that 44 need to be looked at or existing areas that can be looked 45 at in the light of more information? 46 47 MR STOLJAR: Well, that is always a possibility,


1 Commissioner, yes. 2 3 THE COMMISSIONER: You are content for Mr Gilhome to be 4 excused on the summons and if he has to come back, he can 5 come back on another summons? 6 7 MR STOLJAR: That is what I'd contemplated, Commissioner, 8 yes. 9 10 THE COMMISSIONER: You are excused from further attendance 11 on the summons that brought you here, Mr Gilhome. 12 13 THE WITNESS: Thank you, Commissioner. 14 15 <THE WITNESS WITHDREW 16 17 MR STOLJAR: Could I just deal with a couple of 18 housekeeping matters, Commissioner. I tender the 19 transcript of the private hearing of Greg Ridder and also 20 that of Mr Neil Cooper. 21 22 THE COMMISSIONER: Mr Ridder's will be Ridder MFI-1. 23 Mr Cooper's will be Cooper MFI-1. 24 25 RIDDER MFI-1 - TRANSCRIPT OF PRIVATE HEARING OF 26 GREGORY RIDDER 27 28 COOPER MFI-1 - TRANSCRIPT OF PRIVATE HEARING OF NEIL COOPER 29 30 THE COMMISSIONER: Does anyone want to ask any questions 31 of them? 32 33 MR STOLJAR: No-one wishes to ask any questions of those 34 gentlemen. I am about to call Mr Minniti. Perhaps I will 35 do that first and then just deal with some other matters. 36 We can then perhaps let Mr Minniti get away. I call 37 Mr Mario Minniti. 38 39 MR CASH: If the Commission pleases, might I be excused? 40 41 THE COMMISSIONER: If you wish to go, by all means, 42 Mr Cash. Thank you for your assistance. 43 44 45 46 47


1 <MARIO MINNITI, sworn: [10.34am] 2 3 <EXAMINATION BY MR STOLJAR: 4 5 MR STOLJAR: Q. Can you tell the Commission your full 6 name? 7 A. Mario Minniti. 8 9 Q. You are a resident of Victoria? 10 A. Correct. 11 12 Q. You made a statement to this Commission dated 13 8 October 2015? 14 A. Yes. 15 16 Q. The content of that statement is true and correct? 17 A. Yes. 18 19 MR STOLJAR: Commissioner, I ask that Mr Minniti's 20 statement be received into evidence. 21 22 THE COMMISSIONER: Yes, it is received into evidence. 23 24 STATEMENT OF MARIO MINNITI DATED 08/10/2015 25 26 MR STOLJAR: Q. What is your current position, 27 Mr Minniti? 28 A. I'm not employed, I'm unemployed. 29 30 Q. But you were employed by ACI until fairly recently? 31 A. Yes. 32 33 Q. You say in your statement at paragraph 3 that you 34 commenced employment with ACI in February 2003 and had you 35 had some training or work experience prior to that time? 36 A. Yes, I did. 37 38 Q. Could you just give us, in very brief outline, the 39 nature of your experience and training before then? 40 A. Yes. I worked for Alstom Power in construction; prior 41 to that was ABB. 42 43 Q. When did you start your working life? 44 A. I can't remember, sorry, it's years ago. 45 46 Q. You were the HR manager at the ACI Mould Plant at 47 Box Hill?

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1 A. That's correct. 2 3 Q. Who did you report to while you were in that position? 4 A. Frank Nieuwhof. 5 6 Q. That was until 2006, was it? 7 A. No, it was about 2005. 8 9 Q. Where did you go after that? 10 A. I went to - I was still at Box Hill but also at 11 Clayton. I did Clayton as well, technical services. 12 13 Q. Did you have a working relationship with Mr Gilhome? 14 A. I did. 15 16 Q. Were you dealing with industrial relations issues? 17 A. Yes. 18 19 Q. Dealing with unions? 20 A. Yes. 21 22 Q. Which unions had coverage at Box Hill? 23 A. AMWU. 24 25 Q. Were there industrial disputes at Box Hill? 26 A. There was. 27 28 Q. Can you just give us those, just in very brief 29 outline? 30 A. Yes. When I first started there was a major dispute, 31 which I think went for about 18 or 19 weeks. It was 32 a lock-out. 33 34 Q. Of AMWU workers? 35 A. AMWU members, yes. 36 37 Q. Was it back in 2003? 38 A. This is 2003, yes. 39 40 Q. What about Spotswood? 41 A. I wasn't involved with Spotswood at that time. 42 43 Q. So you don't know one way or the other what was 44 happening there? 45 A. I wasn't involved with Spotswood, no. 46 47 Q. Have you heard of paid education leave?


1 A. I've heard of it, yes. 2 3 Q. What is your understanding of that concept? 4 A. Education that the company pays for. 5 6 Q. But education of delegates, for example? 7 A. Yes, OH&S reps, delegates. 8 9 Q. Tell me if this is right or not - training or 10 education of employees or delegates in the sense that their 11 wages continue while they take time off to do the training; 12 is that right? 13 A. Correct. 14 15 Q. That's your understanding of what that means? 16 A. That's my understanding, that's correct. 17 18 Q. Were you aware while at Box Hill or, for that matter, 19 during your employment at ACI, of payments being made by 20 ACI for a different form of paid education leave? I'll put 21 that another way. I take it you are familiar, in general 22 terms, with the evidence that has been emerging over the 23 last day or two? 24 A. Yes. 25 26 Q. And you know that there was a sequence of payments of 27 about $160,000 for the years 2003 to 2005. Did you have 28 any involvement in that yourself? 29 A. None at all. 30 31 Q. Were you aware of those payments? 32 A. No, not at all. 33 34 Q. In the course of your duties that wasn't something you 35 came across? 36 A. I've only recently heard about it when the 37 Royal Commission raised the matter with OI. 38 39 Q. You never discussed it with Mr Gilhome? 40 A. I haven't spoken to him in years. 41 42 Q. No, but back in 2003 through to 2005, did you discuss 43 that with him? 44 A. No. 45 46 Q. Where was he physically? 47 A. He was at Hawthorn.


1 2 Q. He was in Hawthorn? 3 A. Mmm. 4 5 Q. Were you familiar with an account known as the 6 Packaging Corporate Account? 7 A. No. 8 9 Q. Did you, yourself, operate the HR Cost Centres? 10 A. No. 11 12 Q. Who did? 13 A. Oh, I have no idea, I'm sorry. 14 15 Q. You reported to Brendan Mitchell, did you? 16 A. I did, yes. 17 18 Q. Did you get into the finance side of these 19 arrangements? 20 A. No. 21 22 Q. You were just involved in the IR issues, were you? 23 A. IR employee relations, yes. 24 25 Q. I wanted to ask you more particularly about a series 26 of invoices that are in Shorten MFI-12. There should be 27 a folder marked in that way before you on the desk, 28 Mr Minniti. Begin on page 65 and there is another similar 29 invoice a year later, page 69, and then beginning on 30 page 73 some more invoices on a yearly basis for the same 31 amount. Some of these invoices you approved yourself? 32 A. Yes. 33 34 Q. You approved, in fact, the one on page 65 that I took 35 you to? 36 A. I don't know; there's no signature there. 37 38 Q. I will show you a different copy that has a signature. 39 If you have a look at Ms Velasco's witness statement that 40 has been admitted into evidence and go to tab 3. There is 41 some numbering in the top right-hand corner, it's page 120. 42 A. Yes. 43 44 Q. This is, in fact, the one for the next year, 45 tax invoice 021461 but that's your signature there? 46 A. That's my signature, yes. 47


1 Q. You approved this one? 2 A. Yes, I did. 3 4 Q. It looks like the one on page 121 was approved by 5 Mr Mitchell, likewise on page 122, and then page 123, 6 tax invoice 023539 has your signature and the words "OK to 7 Pay", at the top of the page? 8 A. Yes. 9 10 Q. You are agreeing with me that that is your signature? 11 A. Yes. 12 13 Q. And your handwriting "OK to Pay"? 14 A. That's correct. 15 16 Q. And then on page 124 there is some handwriting, "OK to 17 Pay". Is that your handwriting? 18 A. Yes. 19 20 Q. You say in your statement that you approved the 21 invoices for 2010 and 2011, but you certainly approved, if 22 nothing else, that one from 2009 as well on page 120? 23 A. Yes, I did. 24 25 Q. What was the arrangement pursuant to which these 26 invoices were being paid? 27 A. I don't know of any arrangement, I'm sorry. 28 29 Q. Did you ask anyone? 30 A. No. 31 32 Q. Did you ask Mr Gilhome? 33 A. I asked Brendan, I did ask Brendan. 34 35 Q. Brendan Mitchell? 36 A. I asked Brendan Mitchell if he knew - if he was aware. 37 38 Q. What did he say? 39 A. Didn't know anything about it. 40 41 Q. What did you approve it for? 42 A. Well, on there it was - what is it - "Union dues", so 43 naturally I assumed it's for Union dues. 44 45 Q. Did you identify which members' dues were being paid? 46 A. No, I didn't - I didn't give it a second thought. 47


1 Q. Why were membership fees being separately invoiced 2 when dues were usually paid by payroll deduction? 3 A. Well, there have been occasions in the past in 4 previous positions I've had where people have asked to have 5 payroll deduction for their Union dues and I thought it was 6 just one of those. 7 8 Q. Is this the position, that the company was making 9 payments for a number of members, AWU members, or paying 10 for their dues, but you didn't know who they were and you 11 didn't check anything about it? 12 A. No. 13 14 Q. Did you see any purchase order? 15 A. Sorry? 16 17 Q. Did you issue any purchase order? 18 A. No. 19 20 Q. Did you have any conversation with anyone that might 21 have identified who these members were? 22 A. No. 23 24 Q. Did Mr Mitchell tell you that there was an arrangement 25 that had been put in place by Mr Gilhome while he was still 26 there? 27 A. Not that I can recall. I assumed that was the case. 28 29 Q. You assumed that was the case? 30 A. I assumed - yeah, I assumed that was the case. 31 32 Q. On what basis did you make that assumption? 33 A. Well, someone had to make the arrangement, so 34 I suppose it had to be. 35 36 Q. Do you know whether - and I'm just asking you - there 37 was ever any issue between ACI and anyone else about an 38 external warehouse? 39 A. I don't know. 40 41 Q. Do you know whether any arrangement concerning a 42 demarcation dispute at a warehouse had anything to do with 43 these invoices, or do you not know one way or the another? 44 A. I don't know. 45 46 DR HANSCOMBE: Commissioner, I object to this puttage. 47 This was a topic that was traversed yesterday with


1 Mr Stoljar prior to my examination of Mr Gilhome, and I had 2 thought that the provenance of such information, as 3 Mr Stoljar has for this puttage, had now been agreed to be 4 unsatisfactory. 5 6 MR STOLJAR: I am not putting anything to the witness, 7 Commissioner. I am merely asking a question about it. 8 9 DR HANSCOMBE: I have made the objection. 10 11 DR HANSCOMBE: To which he has already said, "I don't 12 know", so I wasn't going to take it any further. 13 14 THE COMMISSIONER: I can't very well deal with an 15 objection that is based on an agreement of which I am 16 unaware. If there's a problem, Mr Gilhome can always come 17 back for further questioning by Dr Hanscombe. 18 19 DR HANSCOMBE: Commissioner, I haven't made myself clear. 20 The problem was not regarding Mr Gilhome. The problem was 21 regarding the basis on which puttage on this topic was 22 sought to be put to Mr Gilhome and then corrected by 23 Mr Stoljar and it would appear is now about to be traversed 24 again. It is not what about Mr Gilhome did or didn't do, 25 it is about the provenance of this information. 26 27 THE COMMISSIONER: So it is really an objection based on 28 reliability? 29 30 DR HANSCOMBE: Fundamentally, yes. 31 32 MR STOLJAR: The question has been asked and answered and 33 the answer was "I don't know", so I wasn't proposing to 34 take it any further. He doesn't know anything about it. 35 36 THE COMMISSIONER: No harm has been done - or good. 37 38 MR STOLJAR: Q. Just go back to 65 of Shorten MFI-12. 39 Do you know whether this was the first invoice of this 40 kind? 41 A. No idea. 42 43 Q. It is addressed to you, so I take it that you saw it? 44 A. Yes, that's the first time I saw it. 45 46 Q. What, it just arrived out of the blue one day? 47 A. More or less, yes.


1 2 Q. And you just approved it for payment? 3 A. Yes. 4 5 Q. No questions, nothing? 6 A. As I said to you, I did ask Brendan if he was aware of 7 it and he said "no", and, as I said, I didn't think twice. 8 9 Q. Well, he said, "No", and you didn't think twice? 10 A. He wasn't aware of it, no. 11 12 Q. At paragraph 11 in your statement you say you received 13 an invoice in 2014. When you received that, you went and 14 had a discussion with Mr Vine about it; is that right? 15 A. That's right. 16 17 Q. Why did you go and have a discussion with him? 18 A. He had taken over the role of VP of HR, and prior to 19 me signing it, I needed his approval. 20 21 Q. But you had been signing these for years? 22 A. Yes, under Brendan's authority. 23 24 Q. And then you say - you asked him: 25 26 "What do you want me to do about this 27 invoice?, and he said, "It does not look 28 right, go back and tell them we are not 29 paying." 30 31 A. Yes. 32 33 Q. And you said, "OK"? 34 A. Yes. 35 36 Q. So then you sent an email which is in evidence 37 indicating that O-I wasn't going to pay that invoice, 38 effective immediately, in fact that is page 78 of Shorten 39 MFI-12, you say: 40 41 Please be advised that effective 42 immediately O-I Australia will no longer be 43 responsible for the payment of 12 44 membership fees ... 45 46 Did any members come forward to you and say, "Look, our 47 membership fees have stopped being paid", make any


1 complaint? 2 A. No. 3 4 Q. Give you any concern that there were no such members? 5 A. I didn't think about it. 6 7 Q. Well, you didn't think about it. You don't think 8 there were any such members, do you? 9 A. I don't know. I didn't think about it. 10 11 Q. Well, your belief, I suggest to you, is that there 12 were no such members? 13 A. Once again, I didn't even think about it. 14 15 Q. But nobody came to you and said, "Look, why have you 16 stopped paying for my Union fees?" 17 A. No, no-one did. 18 19 Q. Did you have any discussions with the AWU about it 20 yourself? 21 A. No. 22 23 Q. They were addressed to you, these invoices? 24 A. Correct. 25 26 Q. Were they anything to do with Paid Education Leave? 27 A. I have no idea. 28 29 Q. Just to put it to you, Mr Melhem has put on some 30 evidence in this Commission where he says that these 31 invoices were also for Paid Education Leave, but using 32 a different quantification, that is, "12 memberships", do 33 you know why? Do you know anything about that? 34 A. No. I can only assume. 35 36 Q. Are you being completely open and frank with the 37 Commission? 38 A. Yes, I am. 39 40 Q. You say that you paid these invoices over a period of 41 years and you really can't say why? 42 A. Correct. 43 44 Q. And then you just stopped? 45 A. I stopped on authority from Paul Vine. 46 47 Q. Did you have any concerns when you stopped? Did you


1 go back and think, "Gee, I have been paying $5,500-odd for 2 years for 12 members, I better find out what was going on? 3 A. No. 4 5 Q. Took no steps at all to make any enquiries? 6 A. No. 7 8 Q. Anyone ask you to? 9 A. No. 10 11 Q. Does that give you any concern that perhaps these 12 weren't genuine membership fees? 13 A. No. As I said, I didn't even think about it. 14 15 MR STOLJAR: Nothing further. Thank you, Commissioner. 16 17 THE COMMISSIONER: Dr Hanscombe? 18 19 DR HANSCOMBE: No, thank you, Commissioner. 20 21 THE COMMISSIONER: Ms Doust? 22 23 MS DOUST: Nothing, Commissioner, thank you. 24 25 THE COMMISSIONER: Mr Minniti should be excused? 26 27 MR STOLJAR: Yes, Commissioner. 28 29 THE COMMISSIONER: Mr Minniti, you are excused from 30 further attendance on your summons. Thank you for coming. 31 32 <THE WITNESS WITHDREW 33 34 MR STOLJAR: Commissioner, I tender the witness statement 35 of Mr Savage. 36 37 THE COMMISSIONER: That will be received into evidence. 38 39 WITNESS STATEMENT OF GREG SAVAGE DATED OCTOBER 2015 40 41 MR STOLJAR: I note for the record that it is undated but 42 simply says "October 2015". I also tender a witness 43 statement of Zbigniew Kaminski of 6 October 2015, save that 44 objection has been taken to paragraph 21, the last 45 sentence, which I don't press, and paragraphs 22, 23 and 24 46 which I likewise don't press. 47


1 THE COMMISSIONER: This statement will be received into 2 evidence except for the last sentence of paragraph 21. And 3 what were the others? 4 5 MR STOLJAR: Paragraphs 22, 23 and 24. 6 7 THE COMMISSIONER: Paragraphs 22, 23 and 24 are objected 8 to and not pressed. 9 10 WITNESS STATEMENT OF ZBIGNIEW KAMINSKI DATED 06/10/2015, 11 EXCEPT FOR THE LAST SENTENCE OF PARAGRAPH 21 AND PARAGRAPHS 12 22, 23 AND 24 WHICH ARE OBJECTED TO AND NOT PRESSED 13 14 MR STOLJAR: That being the case, Commissioner, no-one has 15 any questions for Mr Kaminski, so this can simply come into 16 evidence. 17 18 THE COMMISSIONER: Very well. 19 20 MR STOLJAR: I tender a witness statement of Ms Prema 21 Chippendale of 6 October 2015, except that an objection has 22 been taken to paragraph 38 and I don't press paragraph 38. 23 24 THE COMMISSIONER: Ms Chippendale's statement will be 25 received into evidence, except for paragraph 38, which is 26 objected to and not pressed. 27 28 WITNESS STATEMENT OF PREMA CHIPPENDALE DATED 06/10/2015 29 EXCEPT FOR PARAGRAPH 38 WHICH IS OBJECTED TO AND NOT 30 PRESSED 31 32 MR STOLJAR: Again, Commissioner, with that excision, 33 nobody has any questions for Ms Chippendale. 34 35 We now come to a different topic, namely, Downer EDI. 36 37 THE COMMISSIONER: Yes. Just so I can orientate myself, 38 what about Paul Vine's witness statement? 39 40 MR STOLJAR: Mr Vine is a resident of New Zealand. It was 41 only convenient for him to come to the Commission next 42 week. He is provisionally listed for 22 October. 43 44 THE COMMISSIONER: Yes, very well. Mr Melhem of course is 45 next week too. Very well, Downer? 46 47 MS DOUST: I wonder if I might be excused, Commissioner,


1 the ACI part for the day being concluded? 2 3 THE COMMISSIONER: Yes, Ms Doust. You certainly can be 4 excused. Thank you for attending and for your assistance. 5 6 MR STOLJAR: Commissioner, I am just told there are three 7 witnesses for Downer. I am told they haven't arrived yet. 8 They were flying up from Melbourne this morning together 9 with their counsel. Is it convenient to take a short 10 adjournment while we wait for them to arrive? We will make 11 some inquiries on the telephone. 12 13 THE COMMISSIONER: The hearing will resume at 11.10 unless 14 a message is received to say that there is no-one to be 15 heard. 16 17 MR STOLJAR: Thank you, Commissioner. 18 19 SHORT ADJOURNMENT 20 21 THE COMMISSIONER: Yes, Mr Stoljar? 22 23 MR H BORENSTEIN: Commissioner, may I seek leave to appear 24 for Mr Lee, and I also will be appearing for the other two 25 witnesses this afternoon. 26 27 THE COMMISSIONER: Yes. 28 29 <TERRENCE JOHN LEE, affirmed: [11.10am] 30 31 <EXAMINATION BY MR STOLJAR: 32 33 MR STOLJAR: Q. Your name is Terrence John Lee? 34 A. That's correct. 35 36 Q. You are a resident of Victoria? 37 A. Correct. 38 39 Q. You were previously an organiser for the AWU, but you 40 are not presently in paid work? 41 A. That's right. 42 43 Q. You have prepared a witness statement? 44 A. Yes, I did. 45 46 Q. Prepared just last night, 14 October 2015? 47 A. Yesterday, yes. Finalised yesterday.

.15/10/2015 AWU OCTOBER 431 T J LEE (Mr Stoljar) Transcript produced by DTI CORRECTED

1 2 Q. Do you have a copy of that with you? 3 A. I have one here with me. 4 5 Q. Can I just ask you about the first line. Is that 6 a residential address? 7 A. Yes, that's my residential address. 8 9 MR STOLJAR: Commissioner, I would ask that Mr Lee's 10 statement be received into evidence, but the usual 11 non-publication order be made in respect of the residential 12 address in line 1. 13 14 THE COMMISSIONER: Yes. The statement will be received, 15 and I direct that the residential address not be published. 16 17 STATEMENT OF TERRENCE JOHN LEE DATED 14/10/2015 18 19 MR STOLJAR: Can I just note for the record, Commissioner, 20 that both Mr Lee and the next two witnesses have been good 21 enough to prepare quite detailed statements of evidence 22 which will considerably expedite the hearing this morning. 23 24 THE COMMISSIONER: Yes, they certainly deserve credit for 25 that. 26 27 MR STOLJAR: Q. Mr Lee, can I just ask you a bit about 28 paragraph 15 and following of your statement. Just to 29 orientate you, you are talking about - some people call it 30 a protest, some people call it a community picket, but, in 31 any event, it is the protest that was going on at the 32 helipad at Essendon in August 2012. It had started on the 33 Monday and, on Friday, Mr Sirsen from Downer arrived? 34 A. That's correct. 35 36 Q. You are dealing with this meeting at paragraph 15. 37 You have set out your version of events there. I suppose 38 cutting to the chase, you say in paragraph 18: 39 40 There was no discussion ... about training 41 of OHS reps or delegates ... 42 43 A. Sorry, at 18 I say that? 44 45 Q. Yes. 46 A. Yes. 47


1 Q. That's your position, is it? 2 A. Yes, it is. 3 4 Q. You have a clear recollection of that meeting as you 5 sit here today? 6 A. Yes. 7 8 Q. Did you take any notes, by the way? 9 A. No. 10 11 Q. Did you send any email, or anything like that, 12 following up? 13 A. Following the meeting with -- 14 15 Q. Yes, just to confirm what had been said? 16 A. No. 17 18 Q. Nothing like that? Can I just put to you what 19 Mr Sirsen says about that meeting. When I call it 20 a meeting, you were just sitting in his car, were you? 21 A. We were sitting in his car, that's correct. 22 23 Q. The four of you, that is Mr Spencer, Mr Susa, yourself 24 and Mr Sirsen? 25 A. That's correct. 26 27 Q. I just want to take you through what Mr Sirsen says 28 about it. It differs from your version and I just want you 29 to say what you think about Mr Sirsen's evidence on this 30 topic, whether you agree with it or not; do you understand? 31 A. Yes, I understand. 32 33 Q. He says that at this meeting he - I'm sorry, you told 34 him that the picket was related to the redundancies of 35 Mr Susa and Mr Spencer, who were two of the AWU employee 36 representatives on the project. Did you say that? 37 A. I don't recall saying that. 38 39 Q. And then he says that he told you in response: 40 41 The only appropriate course of action was 42 for the employees' representatives, the 43 AWU, to notify Fair Work Australia of 44 a dispute and to have it properly 45 determined. 46 47 Did he say that to you?


1 A. Not that I recall. 2 3 Q. And that if the picket was not dispersed, Downer would 4 have no option but to seek an injunction from the 5 Federal Court? 6 A. No, I don't recall that -- 7 8 Q. And then -- 9 A. -- being said by Tony. 10 11 Q. He says that you responded that Mr Susa and Mr Spencer 12 were employee representatives and should be the last to 13 leave the project. Did you say that to him? 14 A. I don't think I said that to him in the car. 15 16 Q. You said it somewhere else? 17 A. A telephone conversation. 18 19 Q. When was that? Before or after the meeting? 20 A. No, back in July when Mr Sirsen first tried to 21 terminate Jamie Spencer. 22 23 Q. Oh, I see. So, there'd been ongoing dialogue about 24 these issues for some months? 25 A. No, it was around 6 or 8 July that we had 26 conversations and the terminations, as a result of those 27 conversations, didn't go ahead at that time. I don't 28 recall too many conversations, or I don't recall any 29 conversations after then, up until this August event. 30 31 Q. Mr Sirsen says that you added, this is all while you 32 were having this meeting: 33 34 Downer had not met its obligations under 35 the MOU in relation to employee OH&S 36 training and it was not right for Downer to 37 dismiss employees on the basis of not 38 having appropriate skills in circumstances 39 where Downer had not provided them with 40 appropriate training. 41 42 Did you say that? 43 A. I did not say that. 44 45 Q. And you are sure about that, are you? 46 A. I am sure. 47


1 Q. Had these two employees in particular received 2 training, to your knowledge? 3 A. Yes. 4 5 Q. When did they receive it? 6 A. Earlier on in the project. 7 8 Q. Mr Sirsen's version of the meeting is that you then 9 said words to the effect: 10 11 All delegates should receive OHS training. 12 13 A. No, I didn't say that. 14 15 Q. Mr Sirsen says that you asked him, that is Mr Sirsen, 16 to agree that Downer would pay OHS training for all 32 17 delegates and OHS representatives and deputies on the 18 project. Did you say that to him? 19 A. I didn't say that to him. 20 21 Q. And then he says he responded, saying: 22 23 This is not possible because of the effect 24 on manning, but subject to obtaining 25 approval from Origin, Downer would provide 26 funding for the training of eight OHS reps 27 or delegates over a five-day period. 28 29 Did he say that? 30 A. He didn't say that. 31 32 Q. Mr Sirsen recounts that you stepped away and spoke 33 with Mr Susa and Mr Spencer. He says you came back and you 34 told him that the AWU would accept the training of eight 35 representatives. Did you say that to him? 36 A. No, I didn't say that to him. 37 38 Q. He says then the picketers demobilised the Essendon 39 helipad at about 7am that morning. 40 A. The picketers and protesters did leave that morning, 41 but - yeah, I can't tell you what time, but it was - yes. 42 43 Q. Can I take you back to your statement. I have really 44 taken you through paragraphs 15 and 16 by putting 45 Mr Sirsen's version to you. At paragraph 17, you say: 46 47 ... [Mr] Sirsen said to me he would have to


1 work out how he would make the payments to 2 the men. 3 4 Can you remember exactly what he said about that, on that 5 topic? 6 A. That's as close to what he said as I can recall, what 7 I've got in my statement there. 8 9 Q. I'm sorry? 10 A. What I've got in my statement there is the best of 11 my - to my recollection of the words he used. 12 13 Q. Because you go on to say in paragraph 17: 14 15 My understanding of that comment was that 16 Sirsen was going to work out a way to pay 17 so that he could get reimbursed by Origin 18 when Origin had directed the terminations. 19 20 Do you see that? 21 A. I do see that. 22 23 Q. What caused you to have that understanding? 24 A. That was just my view on what he meant by he would 25 have to work out a way to pay the guys; 26 27 Q. You said to him, did you, he'd have to work that out 28 with the Union? 29 A. I've said that to him, yes. 30 31 Q. What did he say in response to that? You have said 32 what he didn't say in your statement, but what did he say 33 in response? 34 A. I can't recall what - how Tony responded to that 35 comment. 36 37 Q. You say at paragraph 18: 38 39 There was no discussion between us in the 40 car about training of OHS reps or 41 delegates. 42 43 You say "in the car"; what about out of the car? 44 A. No. 45 46 Q. Any time? 47 A. Not on 10 August.


1 2 Q. What about at some other time, was there discussion? 3 A. Earlier on in the project, when we did the MOU, there 4 was -- 5 6 Q. Oh, right back in the early days? 7 A. Yes, right back on the onset of the project. 8 9 Q. Sorry, I didn't mean to cut you off. 10 A. Right back at the onset of the project, that was one 11 of the things that we included in our industrial 12 arrangements. 13 14 Q. I really just want you to focus your mind on the 15 period on or after the time at which these redundancies 16 were being talked about which I think was about July and 17 following. Was there any discussion about training at that 18 time -- 19 A. No. 20 21 Q. -- that you had? 22 A. No. 23 24 Q. You say in paragraph 19 you let Jeff Sharp know about 25 the settlement. How did you do that? 26 A. Telephone. 27 28 Q. What did you say to him? 29 A. That we'd removed the protest and that Downer had 30 agreed to pay Dragon - sorry, Predrag and Jamie Spencer as 31 if they had of gone to work for the next two week swing. 32 33 Q. Did you mention an amount? 34 A. I can't recall. 35 36 Q. Did you say to Jeff Sharp that it had anything to do 37 with training? 38 A. No, I didn't. 39 40 Q. Did you say to him that it related to, or the 41 agreement related to the payment of, or providing funding 42 for training of eight OHS representatives or delegates over 43 a five-day period? 44 A. No, I didn't say that to Jeff. 45 46 Q. You had left the Union by this stage? 47 A. Yes.


1 2 Q. But you were obviously still involved on an informal 3 basis? 4 A. I'm a life member of the Australian Workers Union. 5 6 Q. Well, you know that proceedings were started, in the 7 next couple of weeks, in the Fair Work Commission? 8 A. In relation to the? 9 10 Q. Yes, adverse action. 11 A. Yes. Yes, I'm aware of that. 12 13 Q. I know you're no longer at the AWU and you may well 14 not be able to shed any light on it, but do you know why 15 those proceedings were commenced if an agreement had been 16 reached? 17 A. No, I don't, I'm sorry, no. 18 19 Q. Did you have any role in the institution of those 20 proceedings? 21 A. No, I did not. 22 23 Q. Because you say at paragraph 20: 24 25 I had no further dealings with Sirsen or 26 McGuire about the dispute after that. 27 28 Did you have further dealings with Mr Spencer or Mr Susa 29 about it? 30 A. No, not specifically about the result of the protest 31 and that. 32 33 Q. What about with Mr Sharp or Mr Melhem, were you 34 involved in, you know, the finalisation of these matters 35 that occurred in the months after 10 August 2012? 36 A. No, I wasn't involved in the final - in what happened 37 from there on. 38 39 Q. Do you know, sitting here today, even if only because 40 it has been showed to you as part of the Commission 41 process, that in due course the AWU issued an invoice for 42 training of eight OHS reps? 43 A. I've seen that correspondence as a result of preparing 44 this statement, yes. 45 46 Q. But casting your mind back to the time, are you able 47 to shed any light on why an invoice was issued by the AWU


1 in those terms? 2 A. No, I can't. I had no involvement with it, so -- 3 4 Q. Did you only find out about that in the course of the 5 Commission process? 6 A. Yes, in the course of this process. 7 8 Q. How did the people on the protest get to the Essendon 9 helipad? 10 A. Personal vehicles. 11 12 Q. Personal vehicles? 13 A. That's right. 14 15 Q. Did you hire a mini bus or a bus to get some there? 16 A. No. 17 18 Q. Did you seek reimbursement from the AWU for that 19 purpose? 20 A. Yes. Yes. 21 22 Q. You did seek that reimbursements? 23 A. Yes. 24 25 Q. Do you say you didn't hire a bus? 26 A. What happened was the first - the first time that 27 Downer had tried to make Jamie redundant in the July, I was 28 still an organiser of the Union and I wasn't sure whether 29 we were going to be able to resolve that situation and so 30 I caused the hire of a mini bus through another member of 31 the Union to transport people to a protest on the Monday, 32 the 9th, I think it was, when Jamie was due to fly back. 33 34 Q. I see. But this is back in July, is it? 35 A. It's back in July, yes. As it turned out, history 36 will tell you, Downer changed their minds. The redundancy 37 at that time didn't get put into place, so there was no 38 need for the bus, and the guy I had arranged to get it - 39 I think it was from Hertz, or one of those, took it back on 40 the Monday. Picked it up on the - picked it up on Sunday, 41 the 8th, and returned it on Monday, 9 July. 42 43 Q. Excuse me, Mr Lee, just one moment. Can I just ask 44 you about some evidence that Mr Melhem has given to the 45 Commission on this topic, Mr Lee. Mr Melhem says that the 46 invoice was - when I talk about the invoice, I mean the 47 invoice that went from the AWU to Downer seeking the sum of


1 $25,000. Do you want to have a look at that just to put it 2 back in your mind, or do you remember it? 3 A. I've seen those invoices subsequent to that time in 4 this process. At the time I wouldn't have known anything 5 about it. 6 7 Q. Nothing at all? 8 A. I mean, I -- 9 10 Q. I'll show it to you just to see if it jogs your memory 11 at all. It is in a bundle that has been marked 12 Sirsen MFI-1. I will just get you a copy of that bundle. 13 It will come up on the screen, but you can look at it in 14 hardcopy if you prefer. 15 A. Does it have a page? 16 17 Q. Page 25. That is version 1 and then subsequently, on 18 page 28, there was a changed version that says "Tax 19 Invoice 023931". Mr Melhem has said that he was advised by 20 the organiser about the fact that there had been 21 a settlement for Mr Spencer and Mr Susa. I asked him: 22 23 Which organiser told you that? 24 25 And he said: 26 27 Probably Mr Lee, Mr Terry Lee. 28 29 Does that jog your memory, that you had any conversation 30 with Mr Melhem about these matters? 31 A. No, it doesn't. 32 33 Q. Are you sure one way or the other or can you just not 34 remember? 35 A. I just can't recall. As I've said earlier, on 36 10 August, the day that the protest disappeared, I can 37 definitely remember letting Jeff Sharp know that, you know, 38 there'd been a resolution and, you know, expect a call from 39 Downer, but I just - I don't know whether I - I can't 40 recall talking to Cesar about it. 41 42 Q. But you had ceased to be an organiser by this stage 43 anyway, hadn't you? 44 A. I had, yes. 45 46 Q. Certainly by August? 47 A. By August I had. I finished on 31 July.


1 2 MR STOLJAR: I don't have anything further. Thank you, 3 Commissioner. 4 5 THE COMMISSIONER: Yes. Dr Hanscombe? 6 7 MR BORENSTEIN: Thank you, Commissioner. 8 9 THE COMMISSIONER: Sorry, I thought you might go last and 10 Dr Hanscombe could go next because you can pick up the 11 pieces. 12 13 DR HANSCOMBE: Mr Borenstein is right, though, because 14 I have no questions for the witness. 15 16 THE COMMISSIONER: Yes, Mr Borenstein? 17 18 <EXAMINATION BY MR BORENSTEIN: 19 20 MR BORENSTEIN: Q. Mr Lee, just two things. You were 21 asked some questions just a few moments ago about an 22 invoice which referred to the training of eight 23 occupational health and safety representatives and you were 24 shown the invoice in those documents. Following 10 August, 25 did you tell anybody at the Union that the matter 26 concerning these two workers had been resolved on the basis 27 that eight OH&S representatives would be trained? 28 A. No. 29 30 Q. Thank you. The second matter is you were asked some 31 questions about your travel arrangements on 10 August to 32 the protest, your travel arrangements and those of the 33 others that attended, and you made reference to an earlier 34 occasion when you arranged to hire a mini bus to bring some 35 people up in July? 36 A. Yes. 37 38 Q. Can I ask you to have a look at a document, please. 39 The first of these documents is headed "Claim for 40 Reimbursement - General Expenses", do you see that, the 41 first page? 42 A. Yes, I do. 43 44 Q. The claimant is "Terry Lee", and that's you? 45 A. Correct. 46 47 Q. And the date is 27 July 2012?

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1 A. That's correct. 2 3 Q. And then you have signed as a claimant at the bottom; 4 do you see that? 5 A. Yes, I do. 6 7 Q. Could you turn the page. Is that the account which 8 Mr Eleftheriou got from the car hire place for the hire of 9 the mini bus on 8 and 9 July? 10 A. Yes. Yes, it is. 11 12 Q. Is your evidence about him hiring it on the 8th and 13 returning it on the 9th based on the print-out in front of 14 you? 15 A. Yes, it is. 16 17 Q. Can you see underneath the print-out where it says 18 "Out TRARALGON", "In TRARALGON" it says for kilometres out 19 "112167" and for kilometres in "112168"? 20 A. I can see that, yes. 21 22 Q. Do you read that as a recording of the amount 23 of kilometres that were driven on the bus while it was 24 hired? 25 A. That's what it appears to be to me, yes. 26 27 Q. The third document is the Union's EFT Remittance 28 Advice to you? 29 A. Yes. 30 31 Q. Thank you. 32 33 MR BORENSTEIN: I wonder if that might be received? 34 35 MR STOLJAR: Yes, I tender that document, Commissioner. 36 37 MR BORENSTEIN: I have nothing further, thank you. 38 39 THE COMMISSIONER: That will be known at Lee MFI-1. 40 41 LEE MFI-1 - THREE DOCUMENTS PRODUCED BY MR BORENSTEIN 42 FIRST PAGE HEADED "CLAIM FOR REIMBURSEMENT - GENERAL 43 EXPENSES", SECOND PAGE BEING A PRINT-OUT RELATING TO HIRE 44 OF MINI BUS AND THIRD PAGE BEING A REMITTANCE ADVICE FOR 45 T & C LEE DATED 10/08/2012 46 47 THE COMMISSIONER: Mr Borenstein is finished. Do you have

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1 anything further, Mr Stoljar? 2 3 MR STOLJAR: Mr Lee could be excused if that's convenient. 4 5 THE COMMISSIONER: Mr Lee, you are excused from further 6 attendance on the summons. Thank you very much for coming 7 all the way up here for your evidence. 8 9 THE WITNESS: Thank you. 10 11 <THE WITNESS WITHDREW 12 13 MR STOLJAR: I call Mr Susa. 14 15 <PREDRAG SUSA, sworn: [11.30am] 16 17 <EXAMINATION BY MR STOLJAR: 18 19 MR STOLJAR: Q. Could you tell the Commission your full 20 name? 21 A. Predrag Susa. 22 23 Q. You are a resident of Victoria? 24 A. Correct. 25 26 Q. You are a rigger and scaffolder? 27 A. That's right. 28 29 Q. You prepared a witness statement yesterday, 14 October 30 2015? 31 A. That's correct. 32 33 MR STOLJAR: I ask that that statement be received into 34 evidence, Commissioner. 35 36 THE COMMISSIONER: Yes. Mr Susa's statement is received 37 into evidence. 38 39 STATEMENT OF PREDRAG SUSA DATED 14/10/2015 40 41 MR STOLJAR: Q. I just want to take you to the same 42 meeting that I discussed with Mr Lee, Mr Susa, namely, the 43 meeting you describe in paragraph 29 and following. You 44 had a discussion with Mr Sirsen, Mr Lee and Mr Spencer in 45 Mr Sirsen's vehicle on the morning of 10 August 2012? 46 A. Correct. 47

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1 Q. You have set out, as best you can, your recollection 2 of that discussion. At paragraph 31 you say: 3 4 To the best of my recollection Sirsen did 5 not say anything about training or paying 6 for training. The discussion in the car 7 was about paying me and Jamie for the 8 swing. 9 10 A. That's correct. 11 12 Q. I will just ask you to bear with me while I put to you 13 some of the things that Mr Sirsen says about that meeting. 14 There were four of you in the car, were there? 15 A. That's right. 16 17 Q. Who was in the front and who was in the back? 18 A. Terry was in the front there, with Tony and me and 19 Jamie in the back. 20 21 Q. Was Mr Lee doing most of the talking for you? 22 A. I can't really recall that. 23 24 Q. Did Mr Lee talk about the fact that the picket was 25 related to the redundancies of yourself and Mr Spencer? 26 A. I can't really recall that. 27 28 Q. Has anyone shown you Mr Sirsen's version of events? 29 A. No. 30 31 Q. I will take you through it then. Did Mr Sirsen say 32 that the appropriate course of action was for the AWU to 33 notify Fair Work Australia of a dispute and have it 34 properly determined? 35 A. I can't recall that. 36 37 Q. Did Mr Lee say something to the effect that you and 38 Mr Spencer were employee representatives and should be the 39 last to leave the project? 40 A. I can't recall that either. 41 42 Q. When you are answering you can't recall, do you 43 mean -- 44 A. I don't remember. 45 46 Q. You just don't remember one way or the other? 47 A. I don't remember.


1 2 Q. So it's possible, but you just don't know? 3 A. I don't remember. 4 5 Q. And then did Mr Lee add that Downer hadn't met its 6 obligations under the MOU in relation to employee OH&S 7 training? 8 A. I don't remember that. 9 10 Q. Did Mr Lee say something to the effect "all delegates 11 should receive OHS training"? 12 A. I don't remember that either. 13 14 Q. Had you received OHS training, yourself? 15 A. Yes, I had. 16 17 Q. And you had completed it, had you? 18 A. That's correct. 19 20 Q. When did you complete it? 21 A. It would have been earlier on there in the project. 22 23 Q. Closer to the outset of the project? 24 A. Oh, I can't recall 100 per cent. 25 26 Q. Had you told Mr Lee that you had completed your OHS 27 training? 28 A. I can't recall that. 29 30 Q. Had the subject come up at all that you can remember? 31 A. I can't remember. 32 33 Q. Mr Sirsen recounts that Mr Lee said, while you were 34 all sitting there, that he wanted - he, that's Mr Lee - 35 wanted agreement from Mr Sirsen that Downer would pay OHS 36 training for all 32 delegates and OHS representatives and 37 deputies on the project? 38 A. I don't remember that being said. 39 40 Q. You seemed a bit more definite about that when you 41 said, "I don't recollect". Are you fairly sure that wasn't 42 said or do you just not remember? 43 A. I do not remember that being said. 44 45 Q. And then Mr Sirsen recounts that he replied to Mr Lee 46 that it wouldn't be possible, that is to say, that all 32 47 delegates get such training, but Downer might provide


1 funding for the training of eight OHS representatives and 2 delegates over a five-day period? 3 A. I don't remember that. 4 5 Q. You don't remember that either. And then he says that 6 you had a discussion with Mr Lee and Mr Spencer separately 7 from him? 8 A. We did have a discussion. 9 10 Q. What did you discuss in that discussion? 11 A. I can't remember what was exactly said. 12 13 Q. In your statement, at paragraph 30, you say that: 14 15 Terry said ... 16 17 That's Terry Lee: 18 19 ... why don't you pay them out for the 20 remainder of the job. Tony said that there 21 was only two weeks left as a maximum. Tony 22 said he would pay us out as if the two 23 weeks was worked. 24 25 And then you say: 26 27 ... at some point Jamie and I got out of 28 the car and spoke about taking two weeks' 29 pay. 30 31 Does that remind you that you did have that discussion? 32 A. Yes, that is correct. 33 34 Q. Is this the position - tell me if this is right or 35 wrong - you got back in the car and you told him that you'd 36 go with the two-weeks pay, in effect? 37 A. Yes, that is correct. 38 39 Q. You say: 40 41 Soon after this I went overseas. 42 43 Do you recollect when you actually left? That is in 44 paragraph 32 of your statement. 45 A. Not the exact date, I don't, sorry. 46 47 Q. How long were you away for, roughly?


1 A. Roughly, I think it was eight to 10 weeks. 2 3 Q. Eight to 10 weeks? 4 A. Yes. 5 6 Q. So you were away until October some time, or later 7 even? 8 A. September I thought, yes. 9 10 Q. When did you leave - shortly after this picket? 11 A. I'm not exactly 100 per cent sure, but it wasn't too 12 long after the picket. 13 14 Q. Do you know that proceedings were commenced by the 15 AWU, in effect, about the fact that you had been, as they 16 said, wrongfully dismissed? 17 A. I didn't know the date that they were proceeding. 18 19 Q. But in your mind had an agreement been reached to 20 pay out yourself and Mr Spencer? 21 A. Yes. 22 23 Q. On 10 August? 24 A. I don't remember the date, no. 25 26 Q. But in this meeting in the car, at the 27 Essendon Helipad, an agreement had been reached to pay you 28 and Mr Spencer out? 29 A. That's correct. 30 31 Q. Do you know why proceedings were commenced shortly 32 thereafter? 33 A. No, I don't. 34 35 Q. Did you tell anyone you wanted proceedings to be 36 commenced? 37 A. Oh, for - I think it was unlawful dismissal. 38 39 Q. Yes. Did you tell anyone you wanted that to be 40 commenced? 41 A. I -- 42 43 Q. Did you have any discussion with Mr Sharp about it? 44 A. I can't recall, no. 45 46 Q. I think I asked you a moment ago, "Did you tell anyone 47 you wanted that to be commenced?"


1 A. Oh, sorry -- 2 3 Q. I thought I heard you say "No". Did you say -- 4 A. Sorry. 5 6 Q. Is that right? 7 A. Yes, you did. 8 9 Q. And what was your answer? 10 A. To? 11 12 Q. Let me just ask you again. 13 A. Yes. 14 15 Q. Did you tell anyone at the AWU that you wanted them to 16 commence proceedings? 17 A. I can't recall whether I did, but there was discussion 18 that there was going to be proceedings that were going to 19 go ahead. 20 21 Q. After the meeting at the picket early in the morning 22 of that Friday? 23 A. Listen, I can't really recall. 24 25 Q. You can't remember. Did anyone talk to you about it? 26 A. There was talks that were held with me and Jamie. 27 28 Q. And who else? 29 A. Well, me and Jamie mainly that were talking. 30 31 Q. To who? 32 A. I think Jamie was there talking with Jeff. 33 34 Q. Jeff Sharp? 35 A. Correct. 36 37 Q. And you were there as well, or had you gone overseas 38 by this stage? 39 A. I can't recall but I never actually had a meeting 40 there with Jeff and Jamie. 41 42 Q. Did you know or have you found out during the 43 Commission process that invoices were in due course issued 44 by the AWU for training? 45 A. I had heard, yes. 46 47 Q. Where did you hear that?


1 A. Just around. I just heard just through conversation, 2 through people talking. 3 4 Q. Do you mean in the last few months or do you mean back 5 in 2012? 6 A. Back then. 7 8 Q. You heard that back then, did you? 9 A. Yes. 10 11 Q. Who told you about it? 12 A. Me and Jamie had spoke about it. 13 14 Q. To who? 15 A. No, in amongst -- 16 17 Q. Just the two of you together? 18 A. Correct. 19 20 Q. So he'd found out somehow? 21 A. He must have. 22 23 Q. Did you, in your mind, have any understanding as to 24 why invoices for training had been issued? 25 A. No. 26 27 Q. You didn't ask anyone about that? 28 A. No. 29 30 Q. So you just received the money in due course? 31 A. Yes. 32 33 Q. And you just used it for your own purposes, but you 34 didn't get back to anyone and say, "Look" -- 35 A. Well, the money was going to be paid to us for the 36 period that was outstanding left on the contract. 37 38 Q. And that was it as far as you were concerned? 39 A. Yeah. 40 41 Q. And you didn't concern yourself with how it had been 42 invoiced? 43 A. No. 44 45 Q. Did anyone get back to you about how the proceedings 46 were finalised in the end? 47 A. No.


1 2 Q. You didn't ask anyone, it just never came up? 3 A. No. 4 5 Q. On the 10th, in the meeting that you had in the car, 6 when did you think you would get the money? Did anyone 7 talk to you about that? 8 A. It was discussed there with Tony that he'd pay the 9 Union and then the Union would pay us. 10 11 Q. But did he say when he would do that? 12 A. Well, he said he'd have to wait for a while because 13 they were in the Commission. 14 15 Q. Who was in the Commission - Downer, you mean? 16 A. Downer. 17 18 Q. Did he offer any reason as to why they'd have to wait 19 a while? 20 A. So it wouldn't make it - how could I say - so there 21 was, like - I'd be guessing now, but the impression I got 22 was so there was no implication there was Downer and the 23 Union. 24 25 Q. Is this the point that you touch on in paragraph 30 of 26 your statement, page 4, about the middle of that paragraph, 27 where you say: 28 29 I recall that Tony said that he couldn't 30 pay us directly because the Commission 31 would be looking at them. 32 33 A. Correct. 34 35 Q. You said that there was no implication between the 36 Downer and the Union. Is that an impression you got or is 37 that something someone said to you? 38 A. That was just the impression I got. 39 40 Q. From something Mr Sirsen said? 41 A. The way he said it. 42 43 Q. What did you understand the issue to be? 44 A. Well, because there was a protest and they were in the 45 Commission, what I gather, at that stage, trying to remove 46 the protest. 47


1 Q. Just focusing on what he said, did he say anything 2 specific about that -- 3 A. No. 4 5 Q. -- or he just said the words that you have set out 6 here, "the Commission would be looking at them." 7 A. That's right. 8 9 MR STOLJAR: I have nothing further. Thank you. 10 11 THE COMMISSIONER: Yes. Dr Hanscombe? 12 13 DR HANSCOMBE: No, thank you, Commissioner. 14 15 THE COMMISSIONER: Mr Borenstein. 16 17 MR BORENSTEIN: I have a question, thank you, 18 Commissioner. 19 20 <EXAMINATION BY MR BORENSTEIN: 21 22 MR BORENSTEIN: Q. You have the statement there with 23 you, Mr Susa? 24 A. Yes. 25 26 Q. Can you have a look at paragraph 24 for a moment, 27 page 3. 28 A. Yes. 29 30 Q. Do you see at the beginning of the paragraph you said: 31 32 After Downer notified me in August 2012 33 that I was no longer required, Jamie ... 34 35 That is Mr Spencer: 36 37 ... contacted me to find out if I had been 38 sacked. He told me he had been sacked as 39 well. I recall that Jamie and I then spoke 40 to Terry Lee on the phone. We asked Terry 41 what we could do about being sacked. My 42 recollection is that Terry suggested taking 43 it to the Fair Work Commission. My 44 recollection is that Terry was going to get 45 someone at the AWU to take care of it. 46 47 Do you see that?

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1 A. Yes. 2 3 Q. Does that accord with your memory about taking 4 proceedings in the Commission for the unfair dismissal? 5 A. It's sort of hard, you know, at this stage to 6 recollect everything. 7 8 Q. Apart from that conversation about going to the 9 Commission and Terry taking care of it, did you have any 10 direct communication with anybody at the Union about any 11 unfair dismissal case in the Commission? 12 A. I can't recall that, but I remember speaking there 13 with Jamie about it. 14 15 Q. Speaking on this occasion? 16 A. Yes. 17 18 MR BORENSTEIN: Thank you. I have nothing further. 19 20 THE COMMISSIONER: Thank you, Mr Borenstein. Mr Stoljar? 21 22 MR STOLJAR: I have nothing further, thank you, 23 Commissioner. 24 25 THE COMMISSIONER: So Mr Susa can be excused? 26 27 MR STOLJAR: Yes. 28 29 THE COMMISSIONER: Mr Susa, thank you for coming along. 30 You are excused from further assistance on the summons. 31 You may leave the witness box. 32 33 <THE WITNESS WITHDREW 34 35 MR STOLJAR: I call Mr Spencer. 36 37 <JAMES THOMAS SPENCER, affirmed: [11.45am] 38 39 <EXAMINATION BY MR STOLJAR: 40 41 MR STOLJAR: Q. Can you tell the Commission your full 42 name? 43 A. James Thomas Spencer. 44 45 Q. You are a resident of Victoria? 46 A. Correct. 47

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1 Q. You are a rigger and scaffolder? 2 A. Correct. 3 4 Q. You have prepared a witness statement dated 14 October 5 2015? 6 A. Finalised yesterday, yes. 7 8 Q. And the content of that statement is true and correct? 9 A. Correct. 10 11 MR STOLJAR: Commissioner, I would ask that that statement 12 be received into evidence. 13 14 THE COMMISSIONER: Yes. Mr Spencer's statement is 15 received into evidence. 16 17 STATEMENT OF JAMES THOMAS SPENCER DATED 14/10/2015 18 19 MR STOLJAR: Q. Mr Spencer, I will just ask you about 20 the meeting that you deal with at paragraph 23 of your 21 statement. As you will have gathered from the previous two 22 witnesses, I just want to put to you a different version of 23 that meeting for your comment. You say that you had this 24 meeting on that morning, Friday, 10 August, sitting in 25 Mr Sirsen's car and the four of you were in the car; that's 26 right? 27 A. Correct. 28 29 Q. Mr Sirsen and Mr Lee in the front and yourself and 30 Mr Susa in the back? 31 A. Correct. 32 33 Q. I know you have set out your recollection as best you 34 can of that meeting at paragraphs 23 and following of your 35 statement, but just so I can put this to you for your 36 comment, did Mr Lee say that the picket was related to the 37 redundancies of yourself and Mr Susa? 38 A. Not that I recall. 39 40 Q. Did Mr Sirsen say anything to the effect that the 41 appropriate course of action was for the AWU to notify 42 Fair Work Australia of a dispute and to have it properly 43 determined? 44 A. No. 45 46 Q. Did Mr Lee suggest that yourself and Mr Susa were 47 employee representatives and should be the last to leave


1 the project? 2 A. Not to my recollection, no. 3 4 Q. Did he add that Downer had not met its obligations 5 under the MOU in relation to OHS training? 6 A. No. 7 8 Q. You are sure about that? 9 A. Yes. 10 11 Q. Had you done your OHS training at this point? 12 A. I wasn't an HSR rep, I was a delegate, so I'd done 13 delegate training. 14 15 Q. But you had done your delegate training? 16 A. Correct. 17 18 Q. When did you do it? 19 A. June. 20 21 Q. And the project didn't have long to go at that point, 22 at least on the schedule in place at that time? 23 A. I can't really answer that because the project had 24 a lot of delays, so I couldn't -- 25 26 Q. Did Mr Lee say words to the effect, "All delegates 27 should receive OHS training"? 28 A. No. 29 30 Q. Did he ask Mr Sirsen to agree that Downer would pay 31 for 32 delegates and OHS representatives to get such 32 training? 33 A. Could you ask that question again? 34 35 Q. Yes. Did Mr Lee ask Mr Sirsen, while you were in the 36 car, that he, Mr Sirsen, agree that Downer would pay OHS 37 training for 32 delegates and OHS representatives? 38 A. No. 39 40 Q. Was the figure of 32 delegates or representatives 41 mentioned? 42 A. No. 43 44 Q. Mr Sirsen then said, in response to Mr Lee, that that 45 was not possible, but he suggested, according to Mr Sirsen, 46 that Downer would provide funding for training of eight OHS 47 representatives or delegates. Did he say that?


1 A. No. 2 3 Q. Did the figure of eight OHS representatives or 4 delegates come up in the meeting at all? 5 A. No. 6 7 Q. You then had a bit of a discussion with Mr Susa, just 8 the two of you, briefly? 9 A. That's my recollection, that we got out of the car 10 and -- 11 12 Q. You say at paragraph 24: 13 14 ... Predrag and I agreed to settle on that 15 basis. 16 17 Do you mean the basis that you talk about in paragraph 23? 18 A. On the basis of what, sorry? 19 20 Q. Well, why don't you just tell us. On what basis did 21 you discuss settling it with Predrag? 22 A. That we'd be paid for our last swing. 23 24 Q. How much would that be, roughly? 25 A. $12,500. 26 27 Q. Each? 28 A. Correct. 29 30 Q. And then you say in 24: 31 32 Predrag and I got back in the car and 33 I told Tony that we would accept it. 34 35 What did Tony say? 36 A. "No worries." 37 38 Q. "No worries", or words to that effect? 39 A. The best that I can remember, yes. 40 41 Q. You say in paragraph 25: 42 43 There was no discussion with Sirsen about 44 training for OHS reps or delegates. 45 46 Is that right, no discussion at all at that time? 47 A. 100 per cent.


1 2 Q. Were the dollar figures actually mentioned during that 3 discussion? 4 A. No. 5 6 Q. When did the dollar figures come up? 7 A. Never - just paid for the last swing. 8 9 Q. Just paid for the last swing? 10 A. Correct. 11 12 Q. Did you only really know the dollar figures when you 13 actually received it a few months later? 14 A. Well, we knew what we roughly earned per swing. 15 16 Q. And it would be roughly that, 12 and a half? 17 A. Correct. 18 19 Q. You know that some proceedings were commenced by the 20 AWU about your dismissal? 21 A. Did I know? 22 23 Q. Yes. 24 A. As far as I knew there were proceedings. I'd asked 25 for an unfair dismissal case to be lodged. 26 27 Q. Who did you ask? 28 A. Jeff Sharp. 29 30 Q. When did you do that? 31 A. To the best of my memory, on the Sunday when I was 32 advised that I was being terminated. 33 34 Q. Oh, I see, so a few weeks before this -- 35 A. No, no, on the Sunday, the 4th, whatever -- 36 37 Q. 5 August. 38 A. The 5th, yeah, when I was advised I was being 39 terminated. 40 41 Q. The sequence of events is you were terminated and the 42 picket, or whatever you want to call it, the protest, was 43 the following week? 44 A. The Monday. 45 46 Q. Yes, and the meeting with Mr Sirsen was the Friday? 47 A. Correct.


1 2 Q. You say that on the Sunday, which would be the 5th, 3 you had asked somebody to start proceedings? 4 A. I would have contacted Jeff, yes, because we used to 5 get rung up by Downer on the Sunday to tell us our details 6 of when we'd be mobilising. On this occasion I was told 7 I would be terminated, so I would have contacted Jeff on 8 the Sunday and asked him to put unfair dismissal 9 proceedings in place. 10 11 Q. On the 10th, after your meeting with Mr Sirsen, so far 12 as you were concerned a deal had been done, hadn't it? 13 A. Correct. 14 15 Q. Did you get back to Jeff Sharp and say, "Don't take 16 the proceedings any further"? 17 A. I'd say so. I can't recall. 18 19 Q. Did you have any discussion with him, Mr Sharp? 20 A. After - on that -- 21 22 Q. After the meeting? 23 A. On the Friday? 24 25 Q. Yes. 26 A. I can't recall. 27 28 Q. Did you ask Mr Lee to speak to him on your behalf? 29 A. No. 30 31 Q. Just tell me what happened after the meeting with 32 Mr Sirsen. Did you go and tell the other protesters that 33 everything had been sorted out? 34 A. Correct. 35 36 Q. Did they all then go? 37 A. Dispersed, yes. 38 39 Q. And that happened immediately after the conversation 40 with Mr Sirsen, did it? 41 A. Correct. 42 43 Q. There was no doubt in your mind that a deal had been 44 done? 45 A. There and then that day? 46 47 Q. Yes.


1 A. Correct. 2 3 Q. Had Mr Sirsen said when Downer would actually pay you 4 the money? 5 A. On that day? 6 7 Q. Yes. 8 A. No. 9 10 Q. When did you -- 11 A. Not to my recollection. 12 13 Q. That just hadn't come up? 14 A. No. 15 16 Q. Did you shake hands on this deal? 17 A. No. 18 19 Q. There was no doubt in your mind, though. You went 20 back to the other protesters and said, "You can all go, 21 we've sorted it out"? 22 A. Correct. 23 24 Q. Or words to that effect. And then did you speak to 25 Mr Sharp or Mr Melhem after the protest had been cleared 26 up? 27 A. On the 10th? 28 29 Q. Well, on the 10th or shortly thereafter? 30 A. I'd say I would have spoke to Jeff Sharp some time 31 after it. 32 33 Q. What did you talk to him about? 34 A. That we'd settled, I was happy. 35 36 Q. Was that fairly soon after the meeting on the 10th, or 37 you're not sure? 38 A. I can't recall, mate, honestly. 39 40 Q. You say in your statement: 41 42 A week or so later I rang Tony and asked 43 where our money was. 44 45 So you rang Tony Sirsen directly, did you? 46 A. Correct. 47


1 Q. And he said he didn't want to do anything at the 2 moment because they were being investigated by one of the 3 industrial regulators and, in effect, "We", that is you and 4 Mr Susa, should wait until it was finished? 5 A. Correct. 6 7 Q. Did you pass that on to Mr Sharp or Mr Melhem? 8 A. No. 9 10 Q. You then say: 11 12 About a month later, I got paid ... 13 14 Did you talk to anyone before or after you got paid - from 15 the Union? 16 A. About? 17 18 Q. About the fact, you know, how the proceedings were 19 going, or, "Where's the money?" 20 A. From my recollection, I might have rang Jeff Sharp 21 once or twice to say we hadn't been paid yet. 22 23 Q. Have you seen, in the course of your preparation for 24 today, any of the invoices that the AWU issued -- 25 A. No. 26 27 Q. -- about this matter? Did you know that they issued 28 invoices claiming payment for the training of eight -- 29 A. Not until you've spoken about it today. 30 31 Q. Not until I've spoken about it today? 32 A. Correct. 33 34 Q. So you have no knowledge as to why or how that 35 occurred? 36 A. The invoices? 37 38 Q. Yes, from the AWU. You weren't involved in that in 39 any way, is that the position? 40 A. No. Correct. 41 42 Q. You never discussed that with Mr Sharp or -- 43 A. No. 44 45 Q. Did you have any doubt as to whether the deal had 46 been - you told us that on the 10th, straight after the 47 meeting with Mr Sirsen, you had no doubts about the deal


1 and you went and told the other protesters. Did you have 2 any doubts afterwards? 3 A. No. 4 5 Q. So far as you were concerned, you had a concluded 6 agreement with Tony from Downer that you were going to be 7 paid out for your last swing and your state of mind never 8 changed about that? 9 A. Correct. 10 11 MR STOLJAR: Just for completeness, Mr Spencer, I'll show 12 you a bundle that has not yet been formally put into 13 evidence. Commissioner, I would ask that this bundle be 14 received into evidence, subject to any objection anyone may 15 wish to take. 16 17 DR HANSCOMBE: What is it? 18 19 MR STOLJAR: It is called "AWU - October 2015 - 20 Downer EDI Bundle". 21 22 THE COMMISSIONER: That will be Downer MFI-1. 23 24 MR STOLJAR: Certainly, Commissioner. 25 26 DOWNER MFI-1 - AWU - OCTOBER 2015 - DOWNER EDI BUNDLE 27 28 MR STOLJAR: I just want to take you to one page of that, 29 Mr Spencer. 30 31 THE COMMISSIONER: I should just say that if Mr Borenstein 32 and Dr Hanscombe want to object to any part of this bundle, 33 which they may or may not have seen, they are at liberty to 34 do so. 35 36 MR STOLJAR: I am told that it is on the electronic court 37 book, so it has been available, but it may not have been 38 reviewed in any detail. 39 40 Q. I just want to take you to page 233-4. It is an email 41 that you sent to Mr Melhem, obviously, just giving your 42 bank account details to facilitate the receipt of the 43 moneys. 44 A. What page are you on, sorry? 45 46 Q. Page 233-4. 47 A. Correct.


1 2 Q. You say: 3 4 Thank-you Cesar. 5 6 Did you have any conversation with Mr Melhem in the period 7 immediately prior to sending that email? 8 A. Not that I recall. 9 10 Q. Did he talk to you at all about what arrangements had 11 been made between the Union and Downer about making these 12 payments? 13 A. Not that I recall. 14 15 DR HANSCOMBE: Commissioner, before this cross-examination 16 commences I wonder if at least an image of this document 17 could be put up? I don't know what this is about. 18 19 MR STOLJAR: I have just supplied Dr Hanscombe with 20 a hardcopy of that page, but I think, given the witness's 21 answer, I don't need to take that any further in any event. 22 23 Q. Your answer is that you didn't have any discussion 24 with Mr Melhem about the arrangements that he had made, or 25 you can't recall? 26 A. That's correct. 27 28 MR STOLJAR: I don't need to take that any further, 29 Commissioner, and I have no further questions. 30 31 THE COMMISSIONER: Dr Hanscombe, any questions? 32 33 DR HANSCOMBE: No, there aren't, Commissioner, thank you. 34 35 THE COMMISSIONER: Mr Borenstein? 36 37 MR BORENSTEIN: No, I have nothing. Thank you. 38 39 THE COMMISSIONER: Mr Spencer, you are excused from 40 further attendance on the summons. Thank you very much for 41 coming along. You may leave the witness box now. 42 43 <THE WITNESS WITHDREW 44 45 MR STOLJAR: We have concluded the witnesses scheduled for 46 today, Commissioner. 47


1 THE COMMISSIONER: Shall we adjourn until 10 tomorrow? 2 3 MR STOLJAR: Yes, Commissioner. 4 5 THE COMMISSIONER: Tomorrow morning involves what? 6 7 MR STOLJAR: Tomorrow morning involves Mr McGuire, who is 8 from Downer but couldn't come today, and then Mr Lockyer. 9 10 THE COMMISSIONER: Those are the only two witnesses for 11 tomorrow? 12 13 MR STOLJAR: Yes. I am going to tender some transcripts 14 of evidence from two other witnesses, but no-one requires 15 them for examination. 16 17 THE COMMISSIONER: It sounds as though it will finish 18 before 1 then? 19 20 MR STOLJAR: I would hope so, Commissioner. 21 22 THE COMMISSIONER: Yes. The hearing is adjourned until 23 10 tomorrow. 24 25 AT 12.01PM THE COMMISSION WAS ADJOURNED TO FRIDAY, 26 16 OCTOBER 2015 AT 10AM 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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