transcript 16 july 2015 - tradeunionroyalcommission.gov.au · web view8 interested in the...

ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION

Level 1, 12 Moore Street, Canberra City, ACT

On Thursday, 16 July 2015 at 9.30am (Day 4)

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

Counsel Assisting: Ms Jeremy Stoljar SC and Mr Richard Scruby

Instructed by: Minter Ellison, Solicitors

.16/07/2015 CFMEU ACT 215 Transcript produced by DTI

1 THE COMMISSIONER: Yes, Mr Stoljar 2 3 MR AGIUS: Mr Commissioner, might I be heard for one or 4 two minutes on an issue that appears to have arisen during 5 the course of the last three days hearing? 6 7 THE COMMISSIONER: What issue is that? 8 9 MR AGIUS: It has been reported that the CFMEU has 10 boycotted the hearings over the last three days and I want 11 to address that point and lest there be any 12 misunderstanding, it was not the CFMEU's intention to 13 boycott the proceedings or to give the impression that we 14 were boycotting the proceedings. 15 16 I note that you, Mr Commissioner, said on the 14th, 17 page 89: 18 19 It is customary to conduct litigation, 20 which this isn't, but also executive 21 hearings, which this is, in the 22 old-fashioned phrase man to man and face to 23 face ... 24 25 Mr Commissioner, what may have been missed when you said 26 that was that the hearings Monday to Wednesday of this week 27 were conducted under Practice Direction 1, which meant that 28 we had no notice of the witnesses, no notice of their 29 names, none of their statements, and no notice of any 30 issues that might arise in the course of the hearings of 31 Monday to Wednesday, and we were protected in the sense 32 that, as is the case under PD1, we had an opportunity to 33 hear the evidence and then to put on any statements and 34 make any application to cross-examine. 35 36 Our absence on Monday was a reflection of PD1 and of 37 the fact that we were not on Monday, Tuesday and Wednesday 38 in any position to respond to any of the evidence 39 significantly. We were compromised in our capacity to 40 object because we wouldn't have had notice or context. Our 41 presence hadn't been requested. We believed there was 42 nothing but atmosphere that our presence could add. We did 43 not intend our absence to be a boycott, but it seemed to us 44 that our presence would have been superfluous to the 45 business of the Commission under PD1. 46 47 In respect of the matters where we have had notice and


1 where we have had statements, we have provided statements 2 of our own and we have made application to cross-examine 3 various witnesses. I just thought that matter should be 4 cleared up and I thank you, Commissioner, for that 5 opportunity. 6 7 THE COMMISSIONER: Yes. There is one thing that arises 8 out of it which you are probably aware, I think, because 9 two or three letters have been sent about it. There are 10 three witnesses who haven't been excused because it is 11 possible that some of the things they said might be thought 12 to, unless contradicted or dealt with in cross-examination, 13 have an adverse impact on the interests of the CFMEU or 14 others of your clients. 15 16 I think those letters, in effect, would seek from you 17 an indication by the end of tomorrow whether they are 18 needed. I am not raising this from the point of view of 19 any inconvenience to the Commission, but they are just 20 three members of the public and they have a legitimate 21 interest in knowing whether or not they have to come back 22 and, if so, when. I am sure you have already, but if you 23 could just bear that matter in mind. 24 25 MR AGIUS: Yes, Commissioner. I have read through the 26 transcript and we propose to take some time this evening 27 and tomorrow to discuss that and to put on such evidence as 28 we can in relation to it. I expect we will require them 29 for cross-examination, or we will seek to have them brought 30 back for cross-examination. I will need to confer with 31 a number of persons before I can be firm about that. 32 I understand there may be some evidence from Mr Kivalu 33 today and that may impact upon our decision in that regard 34 as well. 35 36 THE COMMISSIONER: Yes, Mr Stoljar? 37 38 MR STOLJAR: I won't get into a debate about 39 Practice Direction 1, but just addressing one or two 40 matters that my friend has raised, lest silence on my part 41 could be seen as acquiescence, I just make the point very 42 briefly that Practice Direction 1 is a longstanding 43 practice procedure in Royal Commissions. It was 44 a procedure in use in the Cole Royal Commission, as my 45 friend knows. It was in use extensively last year. It is 46 not used for every witness in this Commission, that 47 decision is made on a case-by-case basis, but in situations


1 where a witness is being dealt with in accordance with 2 Practice Direction 1, the procedure is that the witness is 3 called, the witness gives his or her evidence and after 4 that time anyone who is affected by that evidence has the 5 the opportunity to put on material responding to it, to 6 cross-examine that witness and in every way to protect 7 their position. 8 9 I wouldn't wish to sit here in silence and be seen to 10 have acquiesced to the proposition that my friend was in 11 any way compromised by the use of the Practice Direction 1 12 procedure in the hearings on the first three days and, as 13 I say, I note it was a procedure used not only last year 14 but in other Royal Commissions, but I don't wish to get 15 into a debate about it, Commissioner. 16 17 THE COMMISSIONER: Can I just say one more thing to 18 Mr Agius. We have been talking, you and I, Mr Agius, about 19 the three people who have not yet been excused. A number 20 of other people were excused because it just seemed at the 21 time that their evidence didn't have an adverse impact upon 22 your clients. If that was an incorrect view, of course, 23 you are at liberty to raise the matter and have them 24 re-summonsed, but I would regard that as a relatively low 25 priority endeavour. 26 27 MR AGIUS: My proposition was the same. Again, it is 28 a matter that I need to obtain final instructions on. 29 30 THE COMMISSIONER: Yes, but it is rather less important 31 than the matter you were going to look at this evening, 32 I think. Yes, Mr Stoljar? 33 34 MR STOLJAR: As my friend has indicated, the first witness 35 this morning is Mr Kivalu. Just explaining the Practice 36 Direction 1 procedure, Mr Taleb and other witnesses have 37 given evidence affecting Mr Kivalu. He has elected to take 38 up the opportunity of putting on a statement responsive to 39 some of the matters in Mr Taleb's evidence. He hasn't put 40 on a statement dealing with some other aspects of the 41 evidence, for example, evidence given by Mr He, but he has 42 put on a statement with the assistance of his lawyers 43 responding to some of the matters in Mr Taleb's evidence 44 and since he has taken that course, I propose to call him 45 this morning and ask him some questions about the statement 46 that he has put on. 47


1 THE COMMISSIONER: Yes. 2 3 MR STOLJAR: I call Mr Kivalu. 4 5 <HALAFIHI KIMONU KIVALU, sworn: [9.38am] 6 7 <EXAMINATION BY MR STOLJAR: 8 9 MR STOLJAR: Q. Could you tell the Commission your full 10 name? 11 A. My full name is Halafihi Kimonu Kivalu. 12 13 Q. And you are a resident of New South Wales? 14 A. I am. 15 16 Q. And your current position or occupation? 17 A. I'm an employee of a labour hire company. 18 19 Q. Which labour hire company is that? 20 A. Vari Group. 21 22 Q. Can you spell that name, please? 23 A. V-A-R-I Group. 24 25 Q. You prepared two witness statements, one responsive to 26 the AP Leemhuis case study and one responsive to evidence 27 given by Mr Elias Joseph Taleb. Do you have copies of 28 those statements with you in the witness box? 29 A. I don't. 30 31 Q. I will provide you with hard copies. 32 33 MR MULLER: Commissioner, I think there are, in fact, 34 three statements that Mr Kivalu has filed. There is also 35 a statement in relation to the Claw Constructions matter. 36 37 THE COMMISSIONER: Right. 38 39 MR STOLJAR: Q. I will track down the Claw Constructions 40 one, but is this the position, Mr Kivalu, just while we are 41 tracking down some hard copies of those statements, you 42 have responded to some of the evidence served by the 43 Commission and some of the evidence heard in the last 44 two days, and you have elected not to respond to some of 45 it - for example, that of Mr He - is that fair? 46 A. I think so, yes. 47

.16/07/2015 CFMEU ACT 219 H K KIVALU (Mr Stoljar) Transcript produced by DTI

1 Q. Just while we're getting the hard copy statements for 2 you so you have them in front of you in the box, can I just 3 ask some questions about your background. When you 4 finished school, did you work in construction? 5 A. No, I didn't. 6 7 Q. What sort of background do you have then? What sort 8 of training or study or experience did you have? 9 A. I have a criminal justice background. 10 11 Q. What do you mean by that? 12 A. I worked with detention centres and with kids in the 13 past. 14 15 Q. How long were you doing that kind of work? 16 A. A bit over 10 years, maybe. 17 18 Q. You joined the Union about nine years ago; is that 19 right? 20 A. Yes. 21 22 Q. What was your position when you joined? 23 A. As a Union organiser. 24 25 Q. Did you go straight to that or were you working in 26 construction before that? 27 A. Sorry, I did work in construction prior to my Union 28 employment. 29 30 Q. What were you doing in construction? 31 A. As a labourer. 32 33 Q. How long were you doing that for, roughly? 34 A. I don't know, probably a year or two. 35 36 Q. Here in Canberra? 37 A. No, elsewhere. 38 39 Q. And then you came to the CFMEU in what year, roughly? 40 A. Probably 2006. 41 42 Q. You said you were an organiser. Did you stay in that 43 position the whole time, were you promoted or -- 44 A. Yes, I was a Union organiser, yes. 45 46 Q. Were you ever promoted during your nine years? 47 A. Yes.


1 2 Q. Did you become a lead organiser? 3 A. Yes, that's correct. 4 5 Q. When you were an organiser, who did you report to and 6 who did you work under? 7 A. Sorry, what was that again? 8 9 Q. Who was your boss when you first started? 10 A. When I first started, I think George was my boss when 11 I first started. 12 13 Q. George who? 14 A. George Wason. 15 16 Q. What sort of work were you doing as an organiser? 17 Were you looking after particular trades, particular areas, 18 or what? 19 A. I think we were assigned some trades to look after but 20 I don't remember what trades I looked after at that time. 21 22 Q. When did you become a lead organiser? 23 A. I think probably, I don't know, two, three years after 24 that, maybe. 25 26 Q. Does that mean that other organisers reported to you, 27 more junior ones? 28 A. I mean we had a boss and we had an Assistant Secretary 29 and I was the lead organiser. 30 31 Q. Who were the organisers? 32 A. At what time? 33 34 Q. Well, say in the last three or four years? 35 A. The organisers would be, I believe, Anthony Vitler, 36 Johnny Lomax, Brett Harrison, Cameron Hardy, Zach Smith, 37 Kenneth Miller. I don't know, I've probably left someone 38 out, yeah. 39 40 Q. And Dean Hall was the Branch Secretary for the last 41 five years or so? 42 A. Yes. 43 44 Q. You are all based in Dickson here in Canberra, are 45 you? 46 A. We are, yes. 47


1 Q. Who checks on your work? Who decides what you are 2 going to do on a daily basis? Did you do that or did 3 someone tell you, or how did it work? 4 A. No, I think - I think - I think the 5 Assistant Secretary is the operations manager and that's 6 the bloke that we talk to in terms of what we're doing. 7 8 Q. So you would talk to Dean Hall and he would tell you 9 what to do on a daily basis? 10 A. Not Dean Hall, no. 11 12 Q. No? 13 A. No. 14 15 Q. Isn't he the Secretary? 16 A. He's the Secretary but he's not the 17 Assistant Secretary. 18 19 Q. I am sorry, did you say Assistant Secretary? 20 I misunderstood. Who is the Assistant Secretary? 21 A. Jason O'Mara. 22 23 Q. He is the one who would organise your work on a daily 24 basis? 25 A. Oh look, we would organise our own work, but he would 26 be the person that we sort of worked together with. 27 28 Q. Did you work more closely with one organiser than 29 another? For example, did you work closely with 30 Johnny Lomax? 31 A. Yes, in some cases I've worked together with 32 Johnny Lomax. 33 34 Q. Which trades did you look after? 35 A. I looked after plasterers, traffic control, 36 labour hire, painters. 37 38 Q. What about formwork? 39 A. No, I didn't look after formwork. 40 41 Q. Who was in charge of formwork? 42 A. I don't know. 43 44 Q. You don't know? 45 A. I don't know who looked after formwork at that time. 46 47 Q. In the last three or four years who was the organiser


1 looking after formwork? 2 A. Well, I believe there were a few instances that 3 different people in the office looked after formwork. 4 5 Q. Such as? 6 A. I don't know. You know, one time Jason was looking 7 after it, another time Anthony Vitler was looking after it, 8 another time Johnny Lomax was looking after it. 9 10 Q. And what about concreting? 11 A. I never looked after concreting. 12 13 Q. Who looked after it? 14 A. I don't know. 15 16 Q. You must have some clue, Mr Kivalu? 17 A. Look, I don't know, because like formwork, three 18 people has looked after it over the years. In concrete, 19 I don't know who looked after concrete because there was 20 different times different organisers looked after concrete. 21 22 Q. You were on the Committee of Management, weren't you? 23 A. I am, yes. 24 25 Q. You still are? 26 A. No, not any more. 27 28 Q. I'm sorry? 29 A. I said not any more. 30 31 Q. How long were you on the Committee of Management? 32 A. Sorry? 33 34 Q. How long were you on the Committee of Management? 35 A. How long? 36 37 Q. Yes. 38 A. Jeez, I don't know. 39 40 Q. Some years? 41 A. Yes. 42 43 Q. And that's the body that looks after managing the 44 affairs of the ACT Branch? 45 A. If you want to say it like that, yes. 46 47 Q. You ceased at the Union late last year, did you, you


1 stopped working there? 2 A. Yes. 3 4 Q. Is the position that initially you resigned? 5 A. Sorry? 6 7 Q. You resigned? 8 A. Yes, I did. 9 10 Q. I am not asking you about what they are, but that was 11 for personal reasons? 12 A. Yes, they are. 13 14 Q. After that a decision was made that you'd be made 15 redundant; is that correct? 16 A. Sorry? 17 18 Q. After that you were made redundant? It doesn't make 19 much sense logically, Mr Kivalu. 20 A. I resigned from the Union. 21 22 Q. Yes. I will show you a document. 23 24 MR STOLJAR: Commissioner, I would ask that this bundle of 25 emails be received into evidence. 26 27 THE COMMISSIONER: Yes, subject to objection, this will be 28 known as Kivalu MFI-1. 29 30 KIVALU MFI-1 BUNDLE OF EMAILS 31 32 MR STOLJAR: Q. Just go through this bundle, Mr Kivalu. 33 There is some numbering in the middle of the page. The 34 third page has an email from yourself to Dean Hall of 35 10 November 2014. 36 37 MR MULLER: Commissioner, I am sorry to interrupt, I don't 38 have a copy of the document. 39 40 THE COMMISSIONER: I think Mr Muller, of all people, 41 should have a copy. 42 43 (Handed to Mr Muller) 44 45 MR STOLJAR: Q. On the third page of this document you 46 have written: 47


1 Dear Dean. 2 3 I am writing to inform you that I am 4 resigning immediately today from the CFMEU 5 due to personal issues. 6 7 And then you go on to make some further statements. So you 8 resigned on 10 November 2014? 9 A. Yes. 10 11 Q. With effect immediately, according to your email? 12 A. Yes. 13 14 Q. After that time you received a redundancy payment? 15 A. Yes. 16 17 Q. Or what was described as a redundancy payment. I am 18 just looking at the last page. Did you receive a total of 19 termination pay, inclusive of a redundancy payment, of 20 $73,737? Just if you look at the last page, and then [net 21 of] tax you received a net payment of $60,467? 22 A. Yes. 23 24 Q. Did you have discussions with someone about that, 25 Mr Kivalu? How did that happen after you had resigned? 26 A. I don't understand your question. 27 28 Q. You resigned on 10 November and then after that time, 29 it seems to be even just on the 11th, you received 30 a cheque. Did that just come out of the blue, did it? Did 31 you talk to someone about it? 32 A. Yeah. Look, I spoke to the CFMEU prior to my 33 resignation, yep, that I'll be finishing up, yes. 34 35 Q. That you will be finishing up? 36 A. Yes. 37 38 Q. And then you got a cheque, did you, for $60,467? 39 A. According to this, yes. 40 41 Q. Did you ask anyone about why you got that cheque? 42 A. What do you mean if I asked anyone? 43 44 Q. Did you say to Mr Hall, "I'm getting a redundancy 45 payment, why is is that?" 46 A. I did have some discussion with the CFMEU before my 47 resignation, yes.


1 2 Q. But you can't really shed any light on how these 3 amounts were calculated? 4 A. I don't recall the conversations, no. 5 6 MR AGIUS: Mr Commissioner, it is probably too late but my 7 learned friend has used the term "redundancy" in relation 8 to the total sums and we have only just seen this document 9 and the amount, the net amount, that Mr Kivalu received 10 included annual leave, long service leave, unused sick 11 leave. The ETP component was only part of the sums that my 12 learned friend referred to. It is not strictly accurate to 13 refer to "redundancy payments" of $73,000-odd, less tax, 14 a net payment of $60,000. 15 16 THE COMMISSIONER: I think what you have just said is 17 correct, if Mr Stoljar did so refer to it. I am 18 disinclined to consume any time on it now, but if we peruse 19 the transcript we will see whether he did or he didn't. 20 21 MR AGIUS: I don't want to spend any time on it, but 22 I just didn't want anybody to be misled about it. 23 24 THE COMMISSIONER: Just so that no-one is misled, in the 25 bottom right-hand quarter of the page it says: 26 27 Genuine redundancy amount $32,267.52. 28 29 MR AGIUS: Yes. 30 31 THE COMMISSIONER: In the top left-hand quarter of the 32 page, about an inch and a half down, it says: 33 34 Termination Reason: Redundancy. 35 36 Q. Mr Kivalu, did you cease your employment because you 37 resigned or because you were made redundant? 38 A. Sorry? 39 40 Q. Did you cease your employment early in November 2014 41 with the Construction, Forestry, Mining and Energy Union 42 because you chose to resign or because your office was made 43 redundant and, therefore, you had to leave? 44 A. It was both, resign and obviously I - these are all my 45 entitlements. 46 47 Q. Mr Kivalu, it cannot be both, can it? Either your


1 office was terminated because it had become redundant to 2 the needs of the Union -- 3 A. Yes. 4 5 Q. -- in which case the law makes provision for you to 6 get a payment for that? 7 A. Yes. 8 9 Q. Or your office continued but you chose to resign from 10 it for personal reasons. Which is it? 11 A. I resigned for personal reasons. 12 13 Q. How did you come to get a redundancy of $32,267.52 as 14 a payment? 15 A. I don't know. 16 17 THE COMMISSIONER: Yes, Mr Stoljar. 18 19 MR STOLJAR: Can I just clarify something Mr Agius said. 20 At line 37, page 224 of the transcript I made it very clear 21 that the payment, the total termination pay was inclusive 22 of a redundancy payment. It was not ever put to the 23 witness that the total amount that he received was in its 24 totality a redundancy payment. 25 26 Q. You now have the statements that you prepared for this 27 hearing, do you? Do you have those in front of you? 28 A. I do, yes. 29 30 Q. These statements were prepared in consultation with 31 your lawyers? 32 A. It is, yes. 33 34 Q. You took the opportunity of sitting in the hearing 35 room over the first three days of this week and you 36 listened to the evidence? 37 A. I think we were here most of the time, yes. 38 39 Q. And you wish to respond to some of that evidence by 40 putting on a statement of your own, or statements of your 41 own, that's right, which you have done in the documents 42 right in front of you? 43 A. Do I wish to say something? 44 45 Q. No, you have put what you wanted to say in your 46 statements, that's right, isn't it? 47 A. Yes.


1 2 Q. And you were careful when you prepared your 3 statements, weren't you? 4 A. Yes. 5 6 Q. Because you knew that these were important matters? 7 A. Yes. 8 9 Q. You didn't want the Commission to be misled in any 10 way, did you? 11 A. No. 12 13 Q. And you checked through the statements carefully 14 before you signed them, didn't you? 15 A. Yes. 16 17 Q. And you made sure that everything in the statement was 18 correct, every paragraph; that's right? 19 A. Yes. 20 21 Q. Because you know that there are very serious penalties 22 for giving false evidence to this Commission, you know 23 that, don't you? 24 A. Yes. 25 26 Q. And if you give false evidence you can be prosecuted, 27 you know that? 28 A. Yes. 29 30 Q. And you understand that very clearly as you sit there 31 in the witness box, do you? 32 A. Yes. 33 34 Q. And everything in your witness statements is true and 35 correct, is it? 36 A. Yes. 37 38 MR STOLJAR: I would ask that Mr Kivalu's witness 39 statements responsive to the Leemhuis case study, to 40 Elias Joseph Taleb and to the Claw Constructions case study 41 be received into evidence. 42 43 THE COMMISSIONER: Yes. They will be received into 44 evidence. I, personally, haven't got a copy of the third 45 one. If there is a spare one, it would be good to have it. 46 47 MR STOLJAR: I will provide you with a copy, Commissioner.


1 WITNESS STATEMENTS OF HALAFIHI KIVALU RESPONSIVE TO THE 2 LEEMHUIS, ELIAS JOSEPH TALEB AND CLAW CONSTRUCTIONS CASE 3 STUDIES 4 5 MR STOLJAR: Q. Could you look at the statement for the 6 Elias Joseph Taleb matter. I am just trying to understand 7 the position in overview. If you have a look at 8 paragraph 16 of that statement, you accept, do you, that 9 Elias Taleb paid you, you say, approximately $60,000 over 10 a period of time? 11 A. Yes, I do accept taking money from Elias. It was 12 never in the capacity of a Union official. It was always 13 in the capacity of a friendly environment where our 14 families intervene, where our children play together, and 15 I was never in my Union uniform. I had a good relationship 16 with Mr Taleb and he voluntarily gave me some money in 17 hoping that I would help him with my contacts in the 18 industry, yeah, so I'm saying "yes." 19 20 Q. I will come back to that. Just in overview, in 21 paragraph 76, you say you admit receiving four payments of 22 $10,000 from MDS, a tiling company? 23 A. Yes, I do. Mick gave me this money in the same 24 context that in hope that I would help him with work here 25 in Canberra. He voluntarily offered me these donations as 26 a gift. Mick is a grown man and he's a businessman. I met 27 him on a friendly environment also where I took some money 28 off him. 29 30 Q. You say in paragraph 77: 31 32 No-one in the CFMEU had any knowledge of my 33 receipt of those payments. I did not pass 34 any of those payments to anyone else in the 35 CFMEU. 36 37 Go back to paragraph 16. Let's just work through 16. You 38 said: 39 40 ... he paid me approximately $60,000.00 41 over a period of time. 42 43 Did he pay you in instalments, did he? 44 A. Numerous instalments. 45 46 Q. Of how much? 47 A. Oh, it would probably be around that $60,000.


1 2 Q. Well, how much was each instalment? 3 A. I don't recall those instalments because sometimes 4 I never counted the money. 5 6 Q. He just paid, what, in an envelope and he handed it to 7 you, did he? 8 A. Sometimes an envelope and sometimes just cash. 9 10 Q. Who else was present when he handed over the money? 11 A. No-one was present. 12 13 Q. And what did you do with it? 14 A. I played pokies with it, gambled. 15 16 Q. Did you pass on any payments to anyone at the CFMEU? 17 A. I did not pass any payment to anyone in the CFMEU. 18 19 Q. Well -- 20 A. The CFMEU has no knowledge of any of my dealings. 21 22 Q. In paragraphs 76 and 77 you have gone to some trouble 23 to say: 24 25 No-one in the CFMEU had any knowledge of my 26 receipt of those payments. I did not pass 27 any of those payments to anyone else in the 28 CFMEU. 29 30 Would you go back to paragraph 16. You haven't said that, 31 have you? 32 A. Sorry, what is your question? 33 34 Q. You don't qualify 16 in the way that you qualify 76, 35 where you say, "I never told anyone and I never passed any 36 on", so is it the case, in respect of the money that you 37 received from Elias Taleb, that someone at the CFMEU did 38 know about it? 39 A. The CFMEU has no knowledge of my dealings with 40 Mr Taleb. 41 42 Q. When you say "use contacts", do you mean you would go 43 to sites as a Union official and seek to get work for 44 formwork? 45 46 MR AGIUS: I object to that. He doesn't say that he used 47 contacts. He says:


1 It was my understanding that Elias hoped 2 that I would use my contacts ... 3 4 And the question is upon the basis that: 5 6 Do you mean that you would go to sites? 7 8 Those two things do not equate. One is speaking about an 9 understanding that Mr Elias had, that he, the witness, 10 would use his contacts, and the question implies that what 11 he said is that he went to sites: two entirely different 12 matters. 13 14 THE COMMISSIONER: I forget the precise phrasing of the 15 question, but an open question about going to sites would 16 not seem to be impermissible. 17 18 MR STOLJAR: Q. You say in paragraph 16: 19 20 It was my understanding that Elias hoped 21 that I would use my contacts in the 22 building industry to put in a good word for 23 his company ... 24 25 Are these contacts in the building industry that you had 26 obtained in the course of your work as a Union official? 27 A. Sorry? 28 29 MR AGIUS: I object to that. 30 31 THE WITNESS: I don't understand the question. 32 33 THE COMMISSIONER: Just a moment, Mr Kivalu. 34 35 Q. You had contacts in the building industry, didn't you? 36 A. Yes, I did. 37 38 Q. What were those contacts? 39 A. Oh, just with the trades that I look after. 40 41 Q. Sorry? 42 A. Just from the trades that I look after. 43 44 Q. The trades that you look after. 45 46 THE COMMISSIONER: Yes, Mr Stoljar. 47


1 MR STOLJAR: Q. And those contacts you had built up 2 during your time as a Union official? 3 A. Yes. 4 5 Q. And it was your understanding, was it, that Elias 6 hoped that you would use those contacts to put in a good 7 word for his company? 8 A. Yes. 9 10 Q. And you did that, did you? 11 A. I did what, sorry? 12 13 Q. You used your contacts in the building industry to put 14 in a good word for his company? 15 A. No. 16 17 Q. What, you never did? 18 A. No. 19 20 Q. So you were taking money off him but you never 21 fulfilled your side of the bargain? 22 A. Yes. 23 24 Q. You see, what you put to him was that to get work, he 25 was going to have to pay you to get jobs, that's right, 26 isn't it? 27 A. Sorry? 28 29 Q. You put to Mr Taleb that if he wanted to get jobs, he 30 was going to have to give you money; that's right, isn't 31 it? 32 A. I didn't put anything to Mr Taleb. Mr Taleb 33 voluntarily gave me money in hoping that I would use my 34 contacts to help him in the industry. 35 36 Q. Did you tell anyone about the fact he was giving you 37 money? 38 A. No-one knows. 39 40 Q. No-one at all? 41 A. No-one. 42 43 Q. Well, did you regard it as criminal conduct to receive 44 money from Mr Taleb in these circumstances? 45 A. Not at all. Not at all. 46 47 Q. Not at all?


1 A. Not at all. 2 3 Q. Why did you keep it secret? 4 A. What do you mean "secret"? 5 6 Q. Why didn't you tell anyone? 7 A. It's no-one's business. 8 9 Q. You regarded it as completely open and aboveboard, did 10 you? 11 A. Mr Taleb was a good friend of mine, Commissioner, a 12 very, very good friend of mine. Where at one time my 13 families and his families were very, very good friends, 14 where our families went together on beaches, we had 15 dinners, we had birthdays. This is a bloke that was a good 16 friend of mine, Commissioner, and all dealings with 17 Mr Taleb was in good environment, a friendly environment, 18 and I viewed it as he was my friend and nothing else. 19 20 THE COMMISSIONER: Q. You regarded it as open and 21 aboveboard, did you? 22 A. Yes, because, look - we never - I never wear my CFMEU 23 uniform and discuss anything with Mr Taleb. It was all in 24 a friendly environment where our children was playing 25 around and we had beers and we spoke as friends, and I view 26 everything that - my dealings with him was because we're 27 friends. 28 29 MR STOLJAR: Q. And yet, you told no-one about this 30 arrangement, you kept it completely secret? 31 A. Yes, that's correct. 32 33 Q. Isn't this the position, that you demanded $50,000 for 34 one job? 35 A. I didn't demand anything. 36 37 Q. You demanded $50,000 for the Morris job? 38 A. I didn't demand any money from anyone. 39 40 Q. And the reason you demanded it - well, you regarded it 41 as some sort of agreement ultimately was reached that he'd 42 agreed to pay you what you demanded, namely, $50,000 for 43 the Morris job; that's right, isn't it? 44 A. I didn't demand anything or regarded anything. 45 46 Q. You were of the view that an agreement had been 47 reached on a price for the Morris job; that's right?


1 A. I didn't - I deny that and I don't - I don't make any 2 agreement with anyone. 3 4 Q. And that job alone, as far as you were concerned, was 5 worth $50,000 to Mr Taleb to get the work? 6 A. I don't know what you're talking about. 7 8 Q. And he had no choice other than to pay you to get that 9 job; that's right, isn't it? 10 A. Everyone has a choice. 11 12 Q. In paragraph 35 of your statement, you say: 13 14 I do not believe that there was an occasion 15 where I received a payment of $20,000 from 16 Elias. 17 18 Do you see that? 19 A. Yes, I do see that, yes. 20 21 Q. What, you say you never received $20,000 from 22 Elias Taleb? 23 A. I don't recall receiving $20,000 from Elias. 24 25 Q. You don't recall or it never happened? 26 A. I don't recall. 27 28 Q. You know very well that he paid you a sum of $20,000 29 in one hit, don't you? 30 A. I don't think so. 31 32 Q. You deny that, do you? 33 A. Yes, I do. 34 35 Q. You regarded him as owing you a great deal more than 36 $60,000; that's right, isn't it? 37 A. Sorry? 38 39 Q. You say in your statement that - this is at 40 paragraph 75. You are dealing with paragraphs 150 and 155. 41 You say in your statement: 42 43 I deny that there was any discussion 44 concerning money that Elias owed to me and 45 I did not consider him to be in debt to me 46 in any way. 47


1 That's not true, is it, Mr Kivalu? 2 A. I don't understand. What were you trying to say? 3 4 Q. You regarded Mr Taleb as in debt to you? 5 A. Why was he in debt to me? 6 7 Q. You have said in paragraph 75 - read the whole 8 paragraph to put it into context and then I am going to ask 9 you to focus on some words in the second line, so just read 10 paragraph 75 to yourself. 11 A. Okay, yes. 12 13 Q. You say in the second line: 14 15 I did not consider him to be in debt to me 16 in any way. 17 18 A. Yes, he's not in debt to me. 19 20 Q. Your position is he owes you about $80,000; that's 21 right, isn't it? 22 A. He doesn't owe me any $80,000. 23 24 Q. Do you say he owes you any money at all? 25 A. I'm saying he doesn't owe me any money. 26 27 Q. You got a debt collector to try and chase the money 28 that you said was owed, didn't you? 29 A. I don't think - I think you are mistaken. 30 31 Q. You deny that, do you? 32 A. Yes, I do. 33 34 Q. And you deny that you are of the opinion that he owes 35 you money? 36 A. Yes, I do. 37 38 Q. You see, you're just giving false evidence to this 39 Commission, aren't you, Mr Kivalu? 40 A. I think you're mistaken. 41 42 Q. Could you have a look at Taleb MFI-1, page 225. It is 43 the document behind tab 25. You are looking at page 25. 44 It is a handwritten document -- 45 46 THE COMMISSIONER: Tab 25, page 225. 47


1 MR STOLJAR: Thank you, Commissioner. 2 3 Q. It has "Yarralumla Project" at the top. Have you seen 4 this document before? Just take your time. It is on the 5 screen in front of you, Mr Kivalu, or look at the bundle, 6 whichever is easier. 7 A. Sorry? 8 9 Q. Have you ever seen this document before? 10 A. No, I haven't seen it. 11 12 Q. But you had asked a debt collector called Mr Pattison 13 to recover what you claim to be owing, about $80,000, 14 that's right, isn't it? 15 A. I didn't ask anyone to recover any money. 16 17 Q. And you wanted interest on top, of about $20,000, so 18 you were looking for $100,000 to be paid by Mr Taleb, 19 that's right, isn't it? 20 A. I don't know what you're talking about. 21 22 Q. And the evidence that you have given today and in your 23 statement is quite false, isn't it, Mr Kivalu? 24 A. Sorry, what was that? 25 26 Q. The evidence that you have given today, both in your 27 statement and orally, is quite false when you said that he 28 didn't, as far as you were concerned, owe you any money; 29 that's right, isn't it? 30 A. I don't understand this question. 31 32 Q. You have given false evidence this morning, haven't 33 you? 34 A. I don't think so. I've given you what -- 35 36 Q. Have a look at that document. Didn't you receive on 37 22 March 2013 a sum of $20,000 in cash from Mr Taleb? 38 A. I don't remember receiving any $20,000 cash from 39 Elias. 40 41 Q. And you received on 12 June 2012 a sum in cash of 42 $10,000, that's right, isn't it? 43 A. No, that's not right. 44 45 Q. And you received approximately, according to you, 46 $90,000 and you said that there was still $80,000 owing and 47 you wanted interest as well, that's right, isn't it?


1 A. No, that's not right. 2 3 Q. And you had a big argument with Mr Taleb, or quite 4 a few of them, because he said he had paid you more than 5 $90,000. He said he paid you up to $135,000 and there was 6 nothing else owing, that's right, isn't it? 7 A. Mr Taleb is full of shit. 8 9 Q. That wasn't my question, Mr Kivalu. What I was 10 putting to you was that you had many arguments with 11 Mr Taleb in which he -- 12 A. Sorry, Commissioner, I didn't have any arguments with 13 Elias. 14 15 THE COMMISSIONER: Mr Kivalu, just calm down. When he 16 asks you a question just wait for it to finish. If it is 17 not a satisfactory question, Mr Muller can object to it, 18 and if it is within Mr Agius's sphere of interest, he can 19 object to it too, but it is not a good idea to interrupt 20 his questions. What was that question, Mr Stoljar? 21 22 MR STOLJAR: I was putting to Mr Kivalu that he had many 23 arguments with Mr Taleb in which, in substance, Mr Taleb 24 put the proposition that he paid up to 135,000 and nothing 25 more was due and you put the proposition that he'd paid 26 $90,000-odd but he was still owing about 80, that's right, 27 isn't it? 28 A. No, that's not right. 29 30 Q. You deny that on your oath, do you? 31 A. I certainly do. 32 33 Q. Did you write down how much he paid you from time to 34 time? 35 A. No. 36 37 Q. Of course you wrote it down, Mr Kivalu, didn't you? 38 A. No. 39 40 Q. And you gave that information to Mr Pattison? 41 A. No. 42 43 Q. And that was what he was going to use to recover the 44 debt for you? 45 A. No. 46 47 Q. And you know, don't you, that Mr Pattison's cousin


1 copied down some of that information and gave it to 2 Mr Taleb? 3 A. No. 4 5 Q. Do you have any explanation you can offer to the 6 Commission as to how this document was prepared? 7 A. No. 8 9 Q. Got no idea? 10 A. No. 11 12 MR STOLJAR: I would ask that some recording be played to 13 Mr Kivalu. I just want you to listen to this recording. 14 Commissioner, there are some transcripts which I can hand 15 out. 16 17 (Telephone call played and transcript displayed) 18 19 MR STOLJAR: Commissioner, I would ask that the voice 20 recording and the transcript be admitted into evidence. 21 22 THE COMMISSIONER: Yes. That is a recording made on 23 10 April 2015? 24 25 MR STOLJAR: Yes. 26 27 THE COMMISSIONER: Kivalu MFI-2 will be a tape recording 28 and the transcript of that recording of a call from 29 Mr Kivalu to Mr Taleb on 10 April 2015. Is there a time on 30 it? 11:53:30 seconds? 31 32 MR STOLJAR: It looks like it, yes. 33 34 THE COMMISSIONER: Anyway, the time doesn't matter. That 35 will be Kivalu MFI-2. 36 37 KIVALU MFI-2 TAPE RECORDING AND TRANSCRIPT OF RECORDING OF 38 A CALL FROM MR KIVALU TO MR TALEB ON 10/04/2015 39 40 MR STOLJAR: Q. Mr Kivalu, you accept that that is your 41 voice and Mr Taleb's voice on the phone? 42 A. Yes, I do. 43 44 Q. That was a conversation you had with him on 10 April 45 2015? 46 A. Yes. 47


1 Q. You accept now, don't you, that you did demand $50,000 2 for the Morris job? 3 A. Yeah, but that's all a lie. When my relationship with 4 Elias went sour, he tried to blackmail me to my boss, then 5 Dean Hall, so I decided to give back to Elias his own 6 medicine, with all his manipulative and all his lies, so 7 I decided to give some of his medicine back to him. 8 9 Q. You are just inventing this evidence as you go along 10 now, aren't you, Mr Kivalu? 11 A. Sorry? 12 13 Q. You are just inventing this evidence as you go along, 14 aren't you? 15 A. I am just telling you the truth. 16 17 Q. Do you say that Mr Taleb contacted Mr Dean Hall and 18 made some complaint, is that what you say? 19 A. No, Mr Taleb met with Dean Hall. 20 21 Q. And what did he say to him? Were you there? 22 A. No, but you need to ask that of Dean Hall because he 23 blackmailed me to Dean Hall. 24 25 Q. When was this? 26 A. Some time ago, I'm not sure. 27 28 Q. The position is that you did, as far as you were 29 concerned, reach an agreement for $50,000 on the Morris 30 job; that's right, isn't it? 31 A. We reached an agreement that he offered to pay for it, 32 for Morris -- 33 34 Q. $50,000? 35 A. -- so I played along his game to give back some of his 36 medicine for all the bullshit that he's been putting me 37 through. 38 39 Q. And you did demand to be owed $80,000-odd? 40 A. This was a scheme that I played back on Elias for the 41 blackmail, that he tried to blackmail me to my employer. 42 43 Q. What, and you just overlooked that when you were 44 giving your witness statement to this Commission, did you, 45 you didn't bother putting that in? 46 A. Sorry, put what in? 47


1 Q. None of this can be found in any of the witness 2 statements that you put in, an accusation that Mr Taleb was 3 trying to blackmail you? 4 A. Commissioner, I don't understand what -- 5 6 THE COMMISSIONER: Q. His question is simply this, since 7 that recording was played he has asked you a number of 8 questions and you have answered. Mr Stoljar is simply 9 pointing out or asking you to comment on the fact that what 10 you have just been saying in testimony is not in your 11 witness statement and he is inquiring whether you simply 12 forgot to put it in at the time your witness statement was 13 compiled? 14 A. I think when I got together with my solicitors we only 15 answered what was according to Elias's transcript. 16 17 MR STOLJAR: Q. But isn't the position you are now 18 advancing that Mr Taleb is trying to blackmail you in some 19 way? 20 A. Yes, he did. 21 22 Q. The position is that you, in fact, were blackmailing 23 him, isn't it? You were demanding money from him in 24 exchange for jobs? 25 A. No, no, no. 26 27 Q. And if he -- 28 A. He blackmailed me to my boss, Dean Hall, okay, and 29 I decided he should have his own medicine back at him. It 30 was all a scheme and it was all a lie, okay? I never did 31 any work to, toward anything. It was just a big scheme, it 32 was just a big lie to sort of get back at his own medicine 33 for the blackmail that he tried to blackmail me to my work. 34 35 Q. Yes, you were in fact responding in your witness 36 statement to a passage from Mr Taleb's statement, which 37 I can provide you, if it refreshes your memory. It is 38 paragraphs 146 and following. It will come up on the 39 screen and you can have a look. He is talking about 40 a conversation that he says he had with you? 41 A. Where is it at, sorry? 42 43 Q. Paragraph 148 is the particular conversation. In 44 fact, it is on or around 10 April 2015 when, in fact, you 45 had this telephone conversation. 46 A. Is this the folder, is it? 47


1 Q. It is just on the screen, that's probably the easiest. 2 Can you see that on the screen? Are you able to read that 3 all right, paragraph 146 and following of Mr Taleb's 4 statement? 5 A. Yes. 6 7 Q. And he says at 148: 8 9 I ... called Fihi. 10 11 And he sets out some conversation. And he says, "I was 12 really angry", and then at 150 and following he goes on to 13 say that he actually showed you that picture that I showed 14 you at page 225, and that he said he wasn't going to pay 15 any more and then you talked about the house at Wamboin. 16 Your response to that is in your statement and you say at 17 paragraph 73: 18 19 As to paragraph 148, I do not recall the 20 conversation. 21 22 Paragraph 74: 23 24 As to paragraphs 150 to 155, I do recall 25 meeting with Elias at a cafe in Fyshwick. 26 I deny there was any conversation 27 concerning Dean Hall. I deny there was any 28 discussion concerning money Elias owed to 29 me. I did not consider him to be in debt 30 to me in any way. The purpose of the 31 meeting was to discuss the property at 32 Wamboin and my plans for the property. 33 34 A. At this stage I haven't seen Elias for a while, so 35 I made contact with him. You know, I made up a lie just 36 for him to sort of catch up with me so we can talk about, 37 yeah, Wamboin. 38 39 Q. You made up a lie? 40 A. Yes, I did, I made up the lie the whole time with 41 Elias. 42 43 Q. The property at Wamboin, the plan was, wasn't it, that 44 Elias would do some work on the property for nothing? 45 A. Elias - sorry, Elias knew about Wamboin for a long 46 time. 47


1 Q. Yes. At some stages you were negotiating with him to 2 this effect: you said he owed you money, he said he didn't, 3 but, anyway, he said, "I'll do some work on the property 4 and that will pay off any debt that I might owe you." 5 A. We probably had some discussion but nothing was 6 finalised. 7 8 Q. You agree, don't you, that he was going to do work on 9 your property for nothing in order to give you a benefit, 10 that is, you'd provide the materials and he'd provide free 11 labour? 12 A. I don't recall agreeing but nothing was finalised. 13 14 Q. So you accept that you had discussions to that effect? 15 A. We've had many discussions about Wamboin. He knew 16 about it for a long, long time. 17 18 Q. And you were very annoyed at the idea that he would 19 not pay you cash, rather, that he would do Wamboin, but you 20 thought that was better than nothing, is that right, 21 because, as far as you were concerned, he owed you money? 22 A. I don't understand the question. 23 24 Q. Let's take it in steps. As far as you were concerned, 25 he owed you money; that's right? 26 A. It was all a scheme and a lie just to get back at 27 Elias for all the - you know, the bullshit that I went 28 through with him, so I decided to give back some of his 29 medicine, back to Elias, which was all a scheme and all 30 a lie. 31 32 Q. That's just nonsense, isn't it, Mr Kivalu? You 33 regarded him as in debt to you and one way of paying off 34 the debt was that he would do work for you at Wamboin? 35 A. That was a scheme I played back to Elias. 36 37 Q. Because you regarded him as owing you money and you 38 were trying to get the money off him; that's right, isn't 39 it? 40 A. Money that he voluntarily offered. 41 42 Q. You accept, do you, that there was an arrangement 43 pursuant to which he and others were going to do work on 44 your property at Wamboin for nothing in order to give you 45 a benefit? 46 A. There was some discussions about work. I don't recall 47 what the specifics of those discussions is, and nothing was


1 finalised. 2 3 Q. Do you accept that there was an arrangement or 4 arrangement discussed in which he and others were going to 5 do work on your property at Wamboin for nothing in order to 6 give you a benefit? 7 A. He probably did mention something about offering some 8 work and some stuff, but I don't recall agreeing or - 9 nothing was finalised. 10 11 Q. Your wife was very unhappy about that, wasn't she, 12 about you accepting work on the sheet because she wanted 13 the cash? 14 A. I don't know what you're talking about. 15 16 Q. You deny that, do you? 17 A. I deny what, sorry? 18 19 Q. You deny that your wife was very unhappy about the 20 idea that you would take work at Wamboin rather than the 21 cash that you said you were owed? 22 A. My wife never dealt with Elias. I think it was only 23 a couple of times that she's spoken to Elias about Wamboin, 24 but I don't recall her being angry. I don't recall her, 25 you know - of anything. 26 27 MR STOLJAR: I would ask you to listen to another 28 recording. 29 30 (Telephone call played and transcript displayed) 31 32 MR STOLJAR: Commissioner, I would ask that the recording 33 of 12 June 2015 and the accompanying transcript be received 34 into evidence. 35 36 THE COMMISSIONER: Yes. Kivalu MFI-3 will be the 37 recording of the 12 June 2015 conversation between Mr and 38 Mrs Kivalu, together with the transcript. 39 40 KIVALU MFI-3 RECORDING OF 12 JUNE 2015 CONVERSATION BETWEEN 41 MR AND MRS KIVALU AND ACCOMPANYING TRANSCRIPT 42 43 MR STOLJAR: Q. Mr Kivalu, you accept that that's your 44 voice and that of your wife on the telephone call? 45 A. Yes. 46 47 Q. If you have a look at the fourth page of that


1 transcript, at the bottom, you say: 2 3 What else do I do because I organised 4 a crime and it comes back to bite us. 5 6 Effectively. What is the crime to which you are making 7 reference? 8 A. Oh, look, it was just a big - a whole scheme, the 9 whole thing. You know, look, it was just - it was just me 10 lying to my wife, it's me lying to Elias, so, look, it was 11 just a big scheme of me getting back at Elias. 12 13 Q. Isn't the position that you were trying to get the 14 money that you claimed he owed you paid off by him doing 15 work on your shed at Wamboin? 16 A. Like I said, I've lied the whole time to Elias about 17 everything, so, look -- 18 19 Q. I'm sorry, have you finished your answer? Who are the 20 people that you had, in your words, "organised", at 45? 21 Page 4, line 45, the second-last line, you say, "I've 22 organised people"? 23 A. Sorry? 24 25 Q. You say at line 45, page 4 of the transcript, down the 26 bottom of the page, the second-last line -- 27 A. Page 4, is it? 28 29 Q. Yes, line 45: 30 31 Because I've organised people. 32 33 A. "Because I've organised people." I don't know. 34 35 Q. Aren't these people that you have organised to give 36 Mr Taleb work? 37 A. No. No. 38 39 Q. Was the problem -- 40 A. Not at all. 41 42 Q. Was the problem that you had made promises to people 43 about money being handed over to them and you were very 44 anxious to get the money back from Mr Taleb so that you 45 could make good your debts, was that the problem? 46 A. Look, it was a whole scheme with Elias. I lied about 47 everything that I spoke with Elias. It was just a big


1 scheme to get back at Elias. He - at what he tried to do 2 to me. He tried to blackmail me. 3 4 Q. Can you please answer my question. Was the problem 5 you were confronting in April and June 2015 this, that you 6 had made promises to others about work, or in some way 7 they'd been organised, and you weren't able to make good on 8 the promises because Elias hadn't paid you the money and 9 you were becoming desperate to get the money off him, was 10 that the problem? 11 A. No. 12 13 Q. Because you did take steps to organise jobs for him, 14 didn't you? 15 A. What steps? 16 17 Q. You took steps to speak to builders and the like to 18 try and get work for him; is that right? 19 A. I didn't talk to any builders. 20 21 Q. And you tried to manoeuvre the situation so that he 22 got work; that's right, isn't it? 23 A. I didn't - I didn't - look, at the end of the day the 24 builders have a commercial decision to, to give work. I'm 25 not in a position to tell anyone to give anyone any work. 26 27 Q. And the position is that you did get a debt collector 28 in to try and get the money off him? 29 A. Look, I didn't talk to any debt collector. I don't 30 recall talking to anyone about anything. 31 32 MR STOLJAR: I am going to play you one further recording. 33 34 (Telephone call played and transcript displayed) 35 36 MR STOLJAR: Commissioner, before I ask that that be 37 received into evidence, there are a few lines on page 3, 38 lines 25 through to 26 and lines 30 to 32, I ask that those 39 lines not be received into evidence because they appear to 40 include some names of - I am not sure who they are, but it 41 looks like children and personal matters that don't need to 42 go into evidence. Save for those excisions, I would ask 43 that the telephone call of 12 June 2015 between Mr and 44 Mrs Kivalu and the transcript be received into evidence. 45 46 THE COMMISSIONER: That document will be Kivalu MFI-4, but 47 not included in the exhibit are lines 25 to 26 and 30 to 32


1 on page 3. Perhaps I should make it plainer. I order that 2 anyone who has seen those lines not publish them. 3 4 KIVALU MFI-4 TELEPHONE CALL OF 12 JUNE 2015, BETWEEN MR AND 5 MRS KIVALU, AND ACCOMPANYING TRANSCRIPT, WITH THE EXCEPTION 6 OF LINES 25 TO 26 AND 30 TO 32 ON PAGE 3 7 8 MR STOLJAR: Q. You accept that that is a telephone 9 conversation between yourself and your wife on 12 June 10 2015? 11 A. Yes. 12 13 Q. And who is "Josh"? 14 A. That's his son. 15 16 Q. I'm sorry? 17 A. That's his son. 18 19 Q. Whose son? 20 A. My wife's son. 21 22 Q. I'm sorry. He is not in the construction industry? 23 A. No. 24 25 Q. Was he involved in trying to get the money back that 26 you said was owed from Mr Taleb? 27 A. Well, I don't know. Well, obviously, he's probably 28 spoken to - probably my wife has spoken to him, I don't 29 know, but look, you know, again, this is all just a big 30 lie, so -- 31 32 Q. Have a look -- 33 A. A big scheme. 34 35 Q. Have a look at page 5, line 24, your wife says: 36 37 I've told Josh whoever he needs to get 38 involved, it's gone up to ... 39 40 And then there are some indistinct words and you say, 41 "Yeah." And then it says: 42 43 FEMALE SPEAKER: -- and it's a 50/50 split 44 with whoever gets it. 45 46 Is the idea that you were discussing that whoever gets the 47 money could keep as their cut half of it as payment for


1 getting it back? 2 A. Yes. 3 4 Q. And she says: 5 6 So I told Josh whoever does it, whether 7 it's his Russian friends from Sydney 8 (indistinct), the Lebanese, I don't care 9 who it is ... 10 11 These are people that could get involved to try and in some 12 way get the money off Mr Taleb; that's right, is it? 13 A. Well, it's right there on the conversation. 14 15 Q. Who is Jack? 16 A. Sorry? 17 18 Q. Who is Jack? 19 A. I don't know. 20 21 Q. On that last page, just when I was listening to it, 22 just then it sounded to me as though your wife may have 23 said, "He just needs to feel the stress and the thing that 24 we felt waiting for him to", and I thought she may have 25 said "suffer all this time". Is that what you heard? 26 A. Yes. 27 28 Q. So the idea was to make Elias suffer, was it? 29 A. No. 30 31 Q. Were you going to get the Russians or the Lebanese, 32 whoever they are, and they were going to make Elias suffer, 33 was that the plan? 34 A. No. 35 36 Q. That's what is said here, isn't it? 37 A. Well, that's what's said, but I don't know. 38 39 Q. That was because you had been putting to him that he 40 had no choice other than to make these payments if he 41 wanted to work in Canberra; that's right, isn't it? 42 A. I don't think so. 43 44 Q. And you'd got the money out of him on that basis? 45 A. I don't think so; he voluntarily gave money up. 46 47 Q. And you'd extorted also promises to pay on that basis


1 and you were aggrieved that he hadn't, as far as you were 2 concerned, complied with the promises that you had extorted 3 out of him; that's right, isn't it? 4 A. I don't think I extorted. He voluntarily gave money. 5 6 MR STOLJAR: I don't have anything further, thank you, 7 Commissioner. 8 9 THE COMMISSIONER: Mr Agius, do you have any questions? 10 11 MR AGIUS: No, I have no questions. 12 13 THE COMMISSIONER: Let me just express to you, Mr Agius, 14 a slight problem I have. You act for Mr Hall, I presume? 15 16 MR AGIUS: I am sorry? 17 18 THE COMMISSIONER: You act for Mr Hall, the Secretary of 19 the Union? 20 21 MR AGIUS: Yes. 22 23 THE COMMISSIONER: The evidence about, "Elias tried to 24 blackmail me with my boss, Dean Hall", and Mr Stoljar 25 elicited that the witness was not present at a meeting 26 which the witness said took place between Mr Taleb and 27 Mr Hall, I am thinking of Mr Hall's reputation in a way, 28 I was wondering whether - let me do it this way. 29 30 Q. Mr Kivalu, you said that Mr Taleb met Mr Hall. Do you 31 remember that? 32 A. Sorry? 33 34 Q. Do you remember fairly early in your evidence, just 35 after the first recording was played, saying that Mr Elias 36 tried to blackmail you with Mr Hall? Do you remember 37 saying that? 38 A. Yes. 39 40 Q. You said that several times? 41 A. Yes. 42 43 Q. You also said that Mr Taleb actually met Mr Hall. Do 44 remember saying that? 45 A. I believe he did, yes. 46 47 Q. And you, yourself, were not present at that meeting?


1 A. No, no. 2 3 Q. On what basis do you say that Mr Taleb met Mr Hall? 4 Did Mr Taleb tell you that? 5 A. Sorry? 6 7 Q. Did Mr Taleb tell you that he had met Mr Hall? 8 A. No, no, Mr Hall called me in. 9 10 Q. I see. What did Mr Hall say to you? 11 A. That Mr Taleb has come forward with some allegations 12 but decided to back off. 13 14 Q. That's all you can remember of what Mr Hall said? 15 A. That's - that's all I remember, yes. 16 17 MR AGIUS: That is a matter on which I need to get some 18 instructions. I appreciate the Commissioner understands we 19 have had no notice before Mr Kivalu gave some evidence. 20 There is a matter that may or may not arise in our case, 21 but I don't know if it's the same incident that Mr Kivalu 22 is talking about. I really don't want to go there unless 23 I have to. I don't have enough instructions to do it now. 24 25 THE COMMISSIONER: It might be a practical course to 26 adjourn for whatever time you need so that you can get 27 instructions, or get instructions sufficient for you to 28 form a professional judgment as to whether to leave matters 29 where they are or not. Are you content with that course? 30 31 MR AGIUS: I will need to speak to Mr Hall to do that. 32 Whether I can get him -- 33 34 THE COMMISSIONER: Well, quite. It may be very difficult 35 to get Mr Hall. He may be busy on something. 36 37 MR AGIUS: He may be out. He could be doing something. 38 Might it be convenient if this witness is just stood down 39 and we will do what we can to contact Mr Hall and see 40 whether we can get instructions? 41 42 THE COMMISSIONER: Mr Stoljar, is that the better 43 solution, just to stand the matter down and proceed with 44 another witness? 45 46 MR STOLJAR: Yes. 47


1 THE COMMISSIONER: Very well. Mr Muller, up to this 2 point, had you any questions? 3 4 MR MULLER: No, Commissioner. 5 6 THE COMMISSIONER: Are you content that it is best if 7 Mr Kivalu just remains in the precincts of the hearing room 8 while Mr Agius does what he can to contact those who might 9 give him instructions? 10 11 MR MULLER: Yes 12 13 THE COMMISSIONER: Very well. Mr Kivalu, you can leave 14 the witness box now. If you could just wait inside or 15 outside the hearing room until Mr Agius gets instructions, 16 then we will proceed from there, depending on what they 17 are, if they're obtained. 18 19 THE WITNESS: Thank you. 20 21 MR STOLJAR: Commissioner, the next witness is 22 Darrell Leemhuis. 23 24 THE COMMISSIONER: Mr Agius, is it convenient if we just 25 adjourn for five or 10 minutes so you can personally set in 26 train the course of getting the instructions? 27 28 MR AGIUS: Yes. Would it be convenient, before we do 29 that, if I hand up a written list of objections that we 30 have in relation to this witness for the Commission's 31 consideration during the break? 32 33 THE COMMISSIONER: Yes. 34 35 MR AGIUS: Might we take advantage of the short break to 36 try and contact Mr Hall? 37 38 THE COMMISSIONER: Yes, let's take the morning tea 39 adjournment, so that the hearing will resume at 11.15am. 40 41 SHORT ADJOURNMENT 42 43 THE COMMISSIONER: Mr Agius, you have these objections. 44 Can I just deal with them in this way: your objection to 45 paragraph 28 is upheld. Your objection to paragraph 29, 46 I take it, is really to the words, "I believe the real 47 reason the Union were on the site that day was because",


1 and also the words "and they wanted us to use Union 2 subbies", is that correct, because the words, "There were 3 non-union subcontractors on site" is a matter within the 4 witness's personal knowledge? 5 6 MR AGIUS. Yes. 7 8 THE COMMISSIONER: I am prepared, if you want to press 9 this, to reject the words "but there were non-Union 10 subcontractors on site". 11 12 MR AGIUS: Yes, may it please the Commission. 13 14 THE COMMISSIONER: If we go to paragraph 17, is the point 15 of the objection the last few words attributed to Mr Greg 16 Mason, namely, "There is no safety issue here"? The ground 17 of objection is hearsay and it is the case that Mr Greg 18 Mason is not a witness yet. 19 20 MR AGIUS: Yes. 21 22 THE COMMISSIONER: I will reject the words. I will reject 23 the last sentence of paragraph 17. I think that covers 24 that. 25 26 MR STOLJAR: We will make some inquiries, Commissioner, 27 about calling Mr Mason. We may deal with that issue. 28 I call Mr Darrell Leemhuis. 29 30 <DARRELL PETER LEEMHUIS, sworn: [11.20am] 31 32 <EXAMINATION BY MR STOLJAR: 33 34 MR STOLJAR: Q. Can you tell the Commission your full 35 name? 36 A. Darrell Peter Leemhuis. 37 38 Q. You are a resident of the ACT? 39 A. Yes. 40 41 Q. You are a director of A&P Leemhuis Builders Pty Ltd, 42 known as A&P? 43 A. Yes. 44 45 Q. You have prepared a witness statement dated 1 July 46 2015. Do you have a copy of that with you? 47 A. I do.

.16/07/2015 CFMEU ACT 251 D P LEEMHUIS (Mr Stoljar) Transcript produced by DTI

1 2 Q. Is the content of your statement true and correct? 3 A. It is. 4 5 MR STOLJAR: I would ask that Mr Leemhuis's statement be 6 received into evidence. 7 8 THE COMMISSIONER: Do you want received also the 9 photographs which are DPL-1 and DPL-2? 10 11 MR STOLJAR: Yes. 12 13 THE COMMISSIONER: Mr Leemhuis's witness statement is 14 received into evidence together with the three colour 15 photographs which are at the back of it. 16 17 WITNESS STATEMENT OF DARRELL PETER LEEMHUIS 18 DATED 01/07/2015 TOGETHER WITH THREE COLOUR PHOTOGRAPHS 19 20 MR STOLJAR: Q. How long have you been in the 21 construction sector? 22 A. 21 years. 23 24 Q. Always in the ACT? 25 A. And surrounding, there's a little bit in New South 26 Wales. 27 28 Q. I will call A&P Leemhuis Builders Pty Ltd "A&P". 29 A&P is both a builder and a developer? 30 A. Correct. 31 32 Q. In some cases you buy the property and then develop it 33 and in other cases you do jobs? 34 A. Yes, that's correct. 35 36 Q. The Beaconsfield site that you deal with in 37 paragraph 4 and following, in which category was that? Was 38 that one that you owned as well as developing? 39 A. Yes, it was. I am not the only owner but I am 40 a shareholder, yes. 41 42 Q. It is owned by some corporate entity, is it? 43 A. It is, yes. 44 45 Q. What is the split between commercial and residential? 46 A. We don't do any residential. 47


1 Q. Was that always the case or have you moved into -- 2 A. We're a third-generation builder. My grandfather 3 started in housing, my father took it into commercial 4 building and I've continued in commercial. 5 6 Q. What is the nature of the work - big jobs, small jobs, 7 it varies? 8 A. It varies. Jobs ranging in size from an interior 9 fit-out of about $250,000 to jobs up to nearly $30 million. 10 11 Q. This Beaconsfield site, what was the job there? It 12 was a warehouse, was it? 13 A. The construction of five bulky goods warehouses, 14 mixed use development. 15 16 Q. In paragraph 4 where it says "was constructing a bulky 17 goods warehouse", it might be more accurate to say a number 18 of bulky goods warehouses on the one site? 19 A. Five separate buildings on the one block. 20 21 Q. Your brother was the site foreman. You were on the 22 site from time to time, were you? 23 A. Yes, I'm always on - usually I look after a site 24 myself and have a family member on one of the other sites; 25 we're lucky, big family. 26 27 Q. You say that early in the morning on 12 December 2012 28 you received a call from Russell telling you that the CFMEU 29 were on site: that's in paragraph 6. Was that something 30 that happened from time to time or was that something 31 unusual or -- 32 A. Yeah, it was unusual. 33 34 Q. And you say at paragraph 7: 35 36 On the way to the site I called the police 37 and WorkSafe and asked them to attend. 38 39 A. Correct. 40 41 Q. Did you call the police again from the site? 42 A. I did. 43 44 Q. And then at paragraph 8 you say you arrived at the 45 Beaconsfield site and nothing much turns on this, but are 46 you sure there were two - you say, "I noticed there were 47 two Union officials on site."


1 A. The Union came in. There were some already there and 2 more turned up. I'm not sure of the split. There was at 3 least two there at the start and more turned up. There may 4 have been three there at the start and one turned up. I'm 5 pretty sure the numbers had been four all up and at least 6 two there at the start. 7 8 Q. You actually say in paragraph 20 of your statement, in 9 the first line in parentheses: 10 11 I cannot be sure of the exact sequence of 12 events. 13 14 A. People were coming and going and it was all - they 15 were - there was a lot people on site - oh well, there were 16 enough people on site that day and it was a - yep. 17 18 Q. When you got there, you describe what you saw in 19 paragraph 9 and you say that Union officials were blocking 20 a truck on site which was trying to back up to the concrete 21 pour. It might be simplest just to have a look at one of 22 the photos, Mr Leemhuis. If you go to DPL-1, does that 23 capture what you saw? 24 A. It might not have been taken exactly when I walked on 25 to site, but give or take, yes, that's what I witnessed 26 when we were on site, a truck not being able to back up to 27 where it was - where the guys could unload it. 28 29 Q. So the two gentlemen from the Union had gone and stood 30 right behind the truck? 31 A. Correct. 32 33 Q. How long were they standing there for? 34 A. There was Union officials behind the truck and at 35 times one in front and behind, so it couldn't leave or back 36 up any further; basically the whole incident. 37 38 Q. Was the concrete to be poured into that area to the 39 right of the truck there? 40 A. It was a little bit further back there, but concrete 41 on ground like you see there, but it was an area that had 42 steel and chaired up and ready to go. It was a little bit 43 further from there. It had to back another 50 metres, 44 probably, give or take. 45 46 Q. These are some of either the subcontractors or A&P 47 workers on the left, are they, of the photo?


1 A. Those guys are Ellcon Contractors. 2 3 Q. So they're from the concreter, are they? 4 A. They are, correct. 5 6 Q. I know they have their backs to us in the photo, but 7 do you know who the two were standing behind the truck? 8 A. When I first arrived at site, I didn't know. 9 10 Q. What about now? 11 A. Yeah, I've had discussions. I don't know all of the 12 people that were there, but I've had subsequent discussions 13 after that as to who was on site. 14 15 Q. Who do you know was on site? 16 A. Fihi, who I know as Fihi. 17 18 Q. And there is another picture on the next page. There 19 is a gentleman to the left, DPL-2. Do you know who that 20 gentleman is? 21 A. I did. I don't seem to recall his name right now, I'm 22 sorry. 23 24 Q. That looks like Mr Kivalu, who you call Fihi, on the 25 right, is it? 26 A. That's correct. 27 28 Q. You say, coming back to your statement, you went and 29 introduced yourself to one of the Union officials and there 30 was some discussion. Someone took some video, didn't they, 31 on the site at the time? 32 A. They did. 33 34 Q. One of your employees? 35 A. Yes. 36 37 MR STOLJAR: I'd ask that some of this footage be played. 38 I think this is video 2. 39 40 (Video footage played) 41 42 MR STOLJAR: It is more like audio than video but, in any 43 event, I would ask that that be received into evidence, 44 Commissioner. There is a transcript as well that I can 45 make available. 46 47 THE COMMISSIONER: Yes.


1 2 MR STOLJAR: It may be convenient to have the video and 3 the transcript travel together. 4 5 THE COMMISSIONER: The video and the transcript will be 6 known as Darrell Leemhuis MFI-1. 7 8 DARRELL LEEMHUIS MFI-1 VIDEO 2 AND ACCOMPANYING TRANSCRIPT 9 10 MR STOLJAR: Q. Mr Leemhuis, you asked a couple of times 11 during the course of the discussion that was recorded for - 12 you say words to this effect: 13 14 Tell me the safety issue. 15 16 I am looking at the transcript and it doesn't identify the 17 names of the persons, but I take it that is your voice one 18 can hear saying: 19 20 Tell me the safety issue. 21 22 A. It is, yes. 23 24 Q. Is the voice of the person saying things like: 25 26 We don't have to be invited. We're here on 27 safety issues. 28 29 Was that Mr Kivalu? 30 A. Yes, it was. 31 32 Q. You asked a couple of times about telling what the 33 safety issues were. Mr Kivalu says: 34 35 We're here on safety issues. 36 37 And at one point he said: 38 39 Fall protection. 40 41 Now, "fall protection" is safety initiatives to prevent 42 someone falling from a height? 43 A. Any area of height, yes. 44 45 Q. That can comprise a barrier or a harness or a lanyard 46 and so on? 47 A. Yes.


1 2 Q. Did you have that sort of equipment on the site? 3 A. We did. 4 5 Q. Was anyone actually working on a high spot at the 6 time? 7 A. They were working on the roof. 8 9 Q. On the roof? 10 A. Yes. 11 12 Q. Did they have that -- 13 A. Yes, they did. 14 15 Q. Was there any problem with fall protection, to your 16 understanding? 17 A. No. 18 19 Q. Do you have any idea where the idea came from that 20 there was some problem? 21 A. The type of fall protection we were using was at the 22 end of the job where you have taken down all of the main 23 protection, where you would have for a normal use. So you 24 would have it enclosed, but when they do the last few caps, 25 you can use numerous methods but we were using a harness on 26 a lanyard with a roof anchor system, with an approved roof 27 anchor system, and they were anchored to that. Sometimes 28 from the street you will see a guy walking on a roof with 29 no handrails and I guess it could be seen that maybe we 30 didn't have protection because they didn't look. 31 32 Q. That is just a guess on your part, is it? Did someone 33 put that to you or is that just your theory as to what 34 might have happened? 35 A. That's my theory and what - why, yeah. 36 37 Q. The fact is that anyone on the roof had a harness and 38 a lanyard and, as far as you were concerned, there was no 39 safety issue? 40 A. Yes. 41 42 Q. Was any other problem identified to you? 43 A. No, not in that early conversation before WorkSafe got 44 there. 45 46 Q. Had you had any notice that people were going to turn 47 up on the site?


1 A. No. 2 3 Q. They just arrived? 4 A. Yes. 5 6 Q. In paragraph 10 you have set out some further 7 discussion and debate that went on. 8 A. Yes. 9 10 MR STOLJAR: We have a second video which is another 11 moment or moments during these events. I would ask that 12 this next video be played 13 14 (Video played) 15 16 MR STOLJAR: Commissioner, I would ask that that video, 17 together with the transcript, be received into evidence. 18 19 THE COMMISSIONER: Yes. Just before I mark that, for my 20 own edification and that of anyone else who wants to learn 21 about it, some of the things said on that video need to be 22 read with section 117(1) of the Work Health and Safety Act 23 2011 (Commonwealth), together with the definition of 24 "relevant worker" in section 116 of that Act. That video 25 and the transcript of it will be known as Darrell Leemhuis 26 MFI-2 27 28 DARRELL LEEMHUIS MFI-2 VIDEO AND ACCOMPANYING TRANSCRIPT 29 30 MR STOLJAR: Q. Mr Kivalu told you that he had called 31 WorkSafe, did he? 32 A. Correct. 33 34 Q. And you'd also called WorkSafe? 35 A. I had. 36 37 Q. At some point, about this time - I am looking at 38 paragraph 12 - you say it was: 39 40 It was at about this point in my 41 conversation with Fihi that the police 42 arrived. 43 44 But you had actually called them again after you arrived at 45 the site, had you? 46 A. Yes. 47


1 Q. So you called them on the way and -- 2 A. Yes. 3 4 Q. -- then you called again? 5 A. Yes. I called them the first time to say that there 6 was a disruption on site and I called them the second time 7 to confirm that these guys were actually, you know, 8 intimidating everyone on site. 9 10 MR STOLJAR: I will play you the triple-O call that you 11 made and then ask you a few questions about that. Could I 12 ask that the triple-O call be played? Commissioner, do you 13 have a transcript of that? I will provide you with that 14 and one for the witness. 15 16 (Triple-O call played and transcript displayed) 17 18 THE COMMISSIONER: Q. Mr Leemhuis, that phone number you 19 gave, is that still your phone number? 20 A. Yes. 21 22 THE COMMISSIONER: I direct that that phone number 23 referred to in the video not be published. 24 25 MR STOLJAR: With that excision from the transcript, 26 Commissioner - and I note, for the record, it is at page 2, 27 line 40, through to page 3, line 3 - I would ask that the 28 triple-O call of 12 December 2012, together with the 29 transcript, be received into evidence. 30 31 THE COMMISSIONER: Yes. With those adjustments, that 32 material will be known as Darrell Leemhuis MFI-3. 33 34 DARRELL LEEMHUIS MFI-3 TRIPLE-O CALL OF 12/12/2012 AND 35 ACCOMPANYING TRANSCRIPT, WITH THE EXCEPTION OF THE PASSAGE 36 AT PAGE 2 LINE 40 TO PAGE 3 LINE 3 37 38 MR STOLJAR: Q. Just looking at that transcript, there 39 is some numbering in the left-hand column. If you look at 40 line 20, it refers to "Mitch". Was that the gentleman you 41 had spoken to in the first -- 42 A. I thought it was; it was obviously Hugh. 43 44 Q. No, you had called before. 45 A. Yes. 46 47 Q. Had you spoken to Mitch and when you rang again did


1 you speak to Hugh? 2 A. Yeah, I think it was Hugh and I just got the numbers 3 rather - yes. 4 5 Q. You talk about them threatening yourself and your 6 father. Your father was on site by this stage? 7 A. He was. 8 9 Q. What had they been doing that caused you to say that? 10 A. Their actions were intimidating. They were asking us 11 to step up and basically we took that to mean to have a 12 fist fight with them, which nobody was prepared to do on 13 our site. They weren't following any instructions and we 14 couldn't get them to do anything. 15 16 Q. You refer to this, I think, on page 2, line 6: 17 18 ... they're wanting us to step up and have 19 a fight. 20 21 They had actually said that to you, had they? 22 A. They wanted us to "step up", their words, yes. 23 24 Q. How were you feeling at this point? 25 A. You know, your knees are knocking together; the guys 26 obviously aren't small they'd bring to site; intimidated, 27 belittled. 28 29 Q. You say at 22 and 23: 30 31 ... we've got these guys shouting at us on 32 site and threatening us. 33 34 That accurately depicted what was happening at the time, as 35 far as you were concerned, did it? 36 A. Yes. 37 38 Q. What about the other people on site, to your 39 observation, were they similarly - to your observation, 40 were they feeling threatened and intimidated? 41 A. Some guys were standing further away, probably not so 42 threatened. Some guys almost thought it was comical and 43 couldn't believe that that sort of thing was going on on 44 a site today, at that time. 45 46 Q. You were the one who was principally dealing with them 47 as the owner and in charge of the site?


1 A. The three main people then were myself - well, my 2 brother, before my father got there, and just myself and my 3 father at the end. They were shouting abuse at him as 4 well. 5 6 Q. At your dad? 7 A. Yes, yeah. 8 9 THE COMMISSIONER: Q. How old is your father or was your 10 father then? 11 A. He's 60 now. We'll have to backtrack from there. 12 13 MR STOLJAR: Q. This was in 2012, so he was about 57, was 14 he? 15 A. Yes. 16 17 THE COMMISSIONER: During this pause I might say another 18 useful piece of legal information in considering the rights 19 of a WHS entry permit holder is section 118 of the 20 Work Health and Safety Act 2011. 21 22 MR STOLJAR: Q. Could you come back to your statement, 23 Mr Leemhuis. We had reached paragraph 12. You say: 24 25 It was at some point after this triple-0 26 the police arrived. 27 28 Were they were fairly quick after the call? 29 A. They were. 30 31 Q. And you spoke to them and you said certain things that 32 you have set out in paragraph 12 and then Jason O'Mara 33 arrived with someone else that you don't recognise? 34 A. No, I'm not sure whether one or two people arrived at 35 that time. 36 37 Q. And then Greg Mason from WorkSafe arrived? 38 A. He was after those - the police and the other Union 39 officials, yes. 40 41 Q. Just tell me what happened when - by now we've got the 42 police and Greg Mason there. Can you just sort of recount 43 in your own words what happened? 44 A. Yes, it's a busy time because I'm trying to deal with 45 the police and explain to them that the Union weren't 46 listening to any instructions, and we're trying to calm the 47 situation down, not make it worse, and then WorkSafe


1 arrived, so I wanted to make clear to them what we were 2 trying to do. We've got a concrete truck blocked from at 3 least backing up and at times there were guys standing at 4 both sides, so it couldn't leave site either. At this 5 stage I hadn't asked it to leave site and I'd asked him to 6 just wait a second, the concrete trucks were in between all 7 that, and I wanted to talk to Greg about moving things 8 along because I didn't think there was a safety issue with 9 the concrete truck, so I've gone across to him and shown 10 him where we were trying to pour concrete. 11 12 Q. What did he do? 13 A. What was that, sorry? 14 15 Q. What did he do? 16 A. He just got there, got ready, got his book out and 17 came for a walk with me to have a look at where we were 18 trying to pour the concrete. First up, that's what he 19 looked at. 20 21 Q. Did he actually look at the site and did he talk to 22 anyone? 23 A. He drove straight on to site. So he's in the 24 middle - next to the middle of site when he got out of his 25 truck. 26 27 Q. Go on. 28 A. He would have seen everything that's there. 29 30 Q. Did he walk over to where you were going to pour the 31 concrete? 32 A. He did. 33 34 Q. Where were the Union officials at this point? 35 A. Talking to the police and still obstructing the truck. 36 37 Q. Tell me if this is right or not, but was it all a bit 38 chaotic, with people moving everywhere and shouting? 39 A. Yes, indeed. 40 41 Q. Was there still shouting going on? 42 A. Not as much at that time, no. No. 43 44 Q. In fact, in paragraph 18 you say: 45 46 I noticed that there were still two Union 47 officials blocking the use of the truck.


1 2 And then in fact it says: 3 4 I told them that Worksafe had said there 5 are no concerns ... 6 7 Et cetera. And they said, "We don't care, we're not 8 moving"; is that right? 9 A. That's right. 10 11 Q. The truck is full of concrete ready to be poured? 12 A. Yes. 13 14 Q. How long is that going to stay in the truck before 15 being poured? 16 A. It's black concrete with accelerator in it because 17 it's your last pour, so it was the balance, what we call 18 the balance, so the pump had already packed away and it was 19 just backing into position. 20 21 Q. How long do you have to pour it before it gets ruined? 22 A. We had to send that truck away because it was ruined 23 by the end of it. You can water up concrete. It will 24 become less - the strength dies as you wet up concrete and 25 black concrete is already bad enough because of the oxide 26 in it. I'm not a concrete expert, but after it has been 27 sitting for an hour your guys are going to struggle to put 28 it in. 29 30 Q. How long had it been sitting there, roughly, about 31 then? 32 A. That would have been about an hour to an hour and 33 a half, I'd imagine, by the time the police got there, 34 WorkSafe and everybody. 35 36 Q. And then at paragraph 20 you say that your dad 37 arrived, although you say you can't be sure of the exact 38 sequence of events, and there's some more shouting going on 39 and Fihi was shouting, "Right here." We've got some video 40 of that, so I would ask that video 4 be played. 41 42 MR STOLJAR: Commissioner, I will provide you with 43 a transcript. 44 45 THE COMMISSIONER: Thank you. 46 47 (Video footage played)


1 2 MR STOLJAR: That is just a part of it. I think it goes 3 on for some time. I would ask that that video file and the 4 accompanying transcript be received into evidence, 5 Commissioner. 6 7 THE COMMISSIONER: That will be known as Darrell Leemhuis 8 MFI-4. 9 10 DARRELL LEEMHUIS MFI-4 VIDEO FILE AND ACCOMPANYING 11 TRANSCRIPT 12 13 MR STOLJAR: Q. What is going on, Mr Kivalu - at least, 14 that's Fihi - is standing behind the truck and your dad is 15 trying to talk to him and he's shouting, "Right here. 16 Right here", so he wasn't going to move from the -- 17 A. No, that's what he was saying, yes. 18 19 Q. And then you describe asking the police to remove the 20 Union from site and just tell me about what happened at 21 that point? Was there a discussion between the police and 22 the Union officials? 23 A. At this very start of the police turning up, I asked 24 them to remove the Union from site because they were being 25 disruptive to site and not following any orders. I mean, 26 on a site it's imperative that you, number one, show ID and 27 you sign into either a visitor or a sign-in book that we 28 have in the office and they hadn't done anything and were 29 just trying to obstruct, so, yes, I asked him to remove 30 them from site. 31 32 Q. And did they leave? 33 A. No. 34 35 Q. What did they say? 36 A. One of the Union officials said to the police, 37 interrupted our conversation and said to the police words 38 to the effect of, you know, "We're not leaving, you guys 39 can't make us." 40 41 Q. In paragraph 27, you say, in effect, that the concrete 42 in the truck was old, so you had to send it back to the 43 supplier: 44 45 My best estimate is that this disruption 46 cost my company between $10,000 and 47 $15,000.


1 2 Obviously, the concrete, the black concrete in the truck, 3 that was just wasted, I take it? 4 A. Yes, it does, it just gets tipped. 5 6 Q. What about the guys who were being paid to actually do 7 the pour, that was just wasted? 8 A. Yeah, and we had to fix the concrete that was there 9 because, obviously, you don't have the balance of the 10 concrete in and you've got a heap of guys standing around. 11 I've got to pay to dump the concrete, I've got to pay for 12 new concrete, so, yeah. 13 14 Q. You had to arrange for a concrete pour, obviously, at 15 some later time? 16 A. Yeah. 17 18 Q. You say in 30: 19 20 We did not hear from the union for some 21 time following this [site] disruption. 22 23 But then you did meet, your dad and you met with Fihi at 24 the Plumb Cafe in Fyshwick and Fihi, if I can call him 25 that, apologised for the Union's actions on the site a 26 month earlier and then said something about: 27 28 If we had a better Union relationship ... 29 30 What did he actually say to you, can you remember? 31 A. He - during the conversation it was brought up that we 32 had become a contractor that had popped up on to their 33 radar because we was now starting to do jobs that they 34 looked after and that they thought we should have an EBA, 35 so there's EBAs and use everybody that had EBAs, Union 36 EBAs, so we could create a level playing field. 37 38 Q. He used that expression, did he, "Level playing 39 field"? 40 A. Correct. 41 42 Q. Did he explain what he meant by that? How was there 43 a level playing field by you having an EBA? 44 A. I guess they want to make sure everybody is paid the 45 same and everybody is charging the same. 46 47 MR AGIUS: I object to that. How is this witness in any


1 position at all to guess what somebody meant by the words 2 "level playing field"? 3 4 THE COMMISSIONER: Q. How many years have you been 5 involved in this industry? 6 A. 21 years. I am a third-generation builder. 7 8 THE COMMISSIONER: I think he is a man of extensive trade 9 experience. 10 11 MR AGIUS: That doesn't give him any special skills at 12 reading people's minds. "A level playing field" could mean 13 any number of things. 14 15 THE COMMISSIONER: I will permit the witness's answer to 16 continue. 17 18 Q. You got halfway through. Would you like the question 19 to be asked again so that your train of thought can be put 20 back on the track? 21 A. Yes, please. 22 23 MR STOLJAR: Q. I asked you whether he used the 24 expression "level playing field" and I said: 25 26 Did he explain what he meant by that? 27 28 And then I said: 29 30 How was having a level playing field 31 achieved by you having an EBA? 32 33 A. Yes, and that answer that I gave I stand by. 34 35 THE COMMISSIONER: Q. Do you wish to add to it? 36 A. No. 37 38 THE COMMISSIONER: Very well. 39 40 MR STOLJAR: Q. Was there any further discussion about 41 that at the meeting? 42 A. He did. He talked about the contractor we were using 43 at that time doing the concreting, the concreting 44 contractor. 45 46 Q. Is that Ellcon? 47 A. That was Ellcon, yes. He talked about them not having


1 an EBA and he talked about us needing to employ people with 2 EBAs and he gave us some names at the time of people who 3 did have an EBA and would be more suitable to do our work. 4 5 Q. How would he know they'd be more suitable, did he say? 6 A. I guess because he thought they had a Union EBA, they 7 were more suitable to do our work, I guess. 8 9 Q. Were these concreters he was telling you about? 10 A. They were. 11 12 Q. Did he suggest any other trades to you? 13 A. Not at that time. The conversation was based around 14 the concreters. On the morning of the disruption he had 15 queried - he had called us dodgy builders, then dodgy 16 concreters, and queried their insurance and super and 17 things like that, so it was more based around the 18 concreters than anybody else at this stage. 19 20 Q. When you say he queried "them", you mean he queried 21 Ellcon? 22 A. Correct. 23 24 Q. When you had this conversation with him at the 25 Plumb Cafe in Fyshwick, did he actually identify other 26 concreters? 27 A. He did. 28 29 Q. Who did he identify? 30 A. A couple that I can remember would be Multi-Crete, 31 Gungahlin and maybe Belconnen Concrete. That was a long 32 time ago, but yes, he mentioned - I think he mentioned 33 maybe a couple more I hadn't heard of. Those other 34 companies I had heard of are local companies, so I had 35 heard of, so that's why I remember those ones. 36 37 Q. You have said a couple of times, "He didn't at that 38 stage" suggest any other trades and you have used the words 39 "at that stage". Did you have a later conversation with 40 him when this came up? 41 A. No. 42 43 Q. Did someone else? Why did you say "at this stage"? 44 Was there some later event that you were thinking of? 45 A. No, I just mean possibly if we'd started to use their 46 contractors for that, there would have been another call up 47 to them to see - but that's only my assumption.


1 2 Q. Have you ever had a discussion with him about formwork 3 providers or crane operators? Did that come up either then 4 or at some other time? 5 A. No, I don't think so. 6 7 Q. What did you mean when you said, "I guess they wanted 8 to make sure everybody is paid the same and everyone is 9 charging the same"? Can you just explain that a bit more? 10 What did you actually mean? 11 A. The Union EBA, they give all the contractors the same 12 EBA and all the contractors discuss what rates they're 13 going to charge me, so it's almost like you get your - if 14 you go to a guy with a Union EBA, you'll get all of the 15 same rates because they've all been set, give or take. 16 17 Q. You mean rates that are paid to the workers, rates and 18 entitlements? 19 A. No, I mean the rates that I get for them to do said 20 work. 21 22 Q. It is, what, similar, is it? 23 A. Well, yes. 24 25 Q. For the Union contractors? 26 A. I guess they need to set a rate to cover the costs of 27 everything. 28 29 Q. Who sets the rate, do you know? 30 A. I think there would be negotiations between the Union 31 and the contractors in their meetings. 32 33 Q. Is this something you have observed in relation to 34 concreters or in relation to other trades? 35 A. I've been in the industry a long time; it's not only 36 concreters, no. 37 38 Q. What are the other trades? 39 A. Formwork would be a perfect example. 40 41 MR AGIUS: Commissioner, I object to this. Again, unless 42 the witness is actually there hearing these agreements and 43 these conversations, this is just speculation. The fact 44 that he has been in the industry a long time doesn't 45 qualify him to be able to express an opinion about what 46 other people do at times when he is not present. 47


1 THE COMMISSIONER: Your objection has great technical 2 power. Can you defend the evidence? 3 4 MR STOLJAR: I can perhaps approach it in a different way. 5 6 THE COMMISSIONER: I might just note that the Australian 7 Competition and Consumer Commission will be extremely 8 interested in the evidence, technically inadmissible though 9 it might be. 10 11 MR STOLJAR: That may well be. 12 13 THE COMMISSIONER: But that doesn't answer Mr Agius's 14 objection. 15 16 MR STOLJAR: No, but I can perhaps approach it in a 17 slightly different -- 18 19 MR AGIUS: The objection wasn't to protect -- 20 21 THE COMMISSIONER: No, it's all right, Mr Agius, you win 22 your objection. We don't want a speech. We don't have 23 speeches on the field of victory. Mr Stoljar, have another 24 go, if you can. 25 26 MR STOLJAR: Q. A&P is both a developer and a builder? 27 A. Yes. 28 29 Q. You have been doing that for many years in the 30 Canberra industry? 31 A. Yes. 32 33 Q. You have had experience of Union trades tendering, 34 have you? 35 A. I do. 36 37 Q. When you I say "Union trades" -- 38 A. I do all the tendering for our company, for all of the 39 projects, I see their sub-foreman on every job, but the 40 tendering, all tendering for all of my jobs comes through 41 me. 42 43 Q. When you say "all tendering", does that cover some of 44 the trades such that you have mentioned, so formwork, 45 cranes and concreting? 46 A. All trades. 47


1 Q. Have you observed whether tenders have come in from 2 companies with Union - well, with EBAs? 3 A. Yes. 4 5 Q. And you are aware of which companies have EBAs and 6 which don't? 7 A. Most of the time, yes. 8 9 Q. Have you observed any similarity in the tenders that 10 come in, say, for concreting companies with the - ones 11 which have EBAs and ones which don't? 12 A. They are a lot more expensive than the guys who don't 13 have an EBA, but similarities in their quote, not to that 14 extent, no, you can't - no. 15 16 Q. You can't pin down a precise figure? 17 A. No, I couldn't pin it down and I wouldn't be able to, 18 no. 19 20 Q. Are you able to in respect of any other trades? 21 A. There's not an actual trade where you can pin down 22 because they're not going to send their tender submission 23 in and say, "We're part of an EBA and we have agreed to 24 a rate, so this is what you need to charge", they're not 25 going to put that in their submission. 26 27 Q. What about cranes? Are there crane operators in the 28 ACT who don't have EBAs? 29 A. I think there was one; I think he now has EBAs. 30 31 Q. So, in fact, it wouldn't arise so much with the crane 32 operators because there wouldn't be any point of 33 comparison? 34 A. No, that's right. 35 36 Q. Leonora you deal with at the bottom of page 5 of your 37 statement, that is, the Leonora site, that was just last 38 year, and you recount a conversation that you had in 39 paragraph 35. At the bottom of page 6, you say: 40 41 [Fihi] said: "If you don't shut the site, 42 I am not going to be able to help you 43 anymore." 44 45 I said: "What do you mean?" 46 47 He said: "I just won't be able to help


1 what happens next. I have to make some 2 calls." 3 4 Obviously, these are observations made by him, but what did 5 you, yourself, understand him to mean, "I'm not going to be 6 able to help you any more?" 7 8 MR AGIUS: I object to that. 9 10 THE COMMISSIONER: Just put your question again, 11 Mr Stoljar. 12 13 MR STOLJAR: I said: 14 15 Obviously, these are observations made by 16 him, but what did you, yourself, understand 17 him to mean, "I'm not going to be able to 18 help you any more?" 19 20 THE COMMISSIONER: I think it is reasonable to treat 21 Mr Leemhuis as a reasonable operator with extensive 22 experience in the trade and industry and to inquire what 23 words would mean to a reasonable person in that position. 24 I will allow the question. 25 26 MR STOLJAR: Q. Do you want me to ask it again? 27 A. I think I got it. I thought he'd be - they would 28 become more disruptive. 29 30 Q. That's what you took him to be alluding to? 31 A. That's what I took it to mean, yeah. 32 33 MR STOLJAR: I don't have anything further, thank you, 34 Commissioner. 35 36 THE COMMISSIONER: Mr Agius? 37 38 <EXAMINATION BY MR AGIUS: 39 40 MR AGIUS: Q. Mr Leemhuis, who was operating the video 41 camera on the Beaconsfield site? 42 A. I think it might have been the same all three and that 43 would be an apprentice of mine. 44 45 Q. Who was determining when to run the video on and when 46 to turn it off? Which bits would be recorded and which 47 bits would not be recorded?

.16/07/2015 CFMEU ACT 271 D P LEEMHUIS (Mr Agius) Transcript produced by DTI

1 A. It's hard to get every recording because there was so 2 much happening, so I'm not -- 3 4 Q. That's not my question. 5 A. Yes. 6 7 Q. Listen to my question. Who was determining which 8 portions would be recorded and which portions would not be 9 recorded? 10 A. No-one. I had no idea of the recordings until some 11 time afterwards. 12 13 Q. So you don't know? 14 A. No. 15 16 Q. You don't know what motivated the apprentice to turn 17 it on and off at various times? 18 A. He was one of the people that thought it was comical 19 and couldn't believe it happened. 20 21 Q. So what is the answer to my question? 22 A. Could you ask the question again? 23 24 Q. Yes. You don't know who decided to turn it on, which 25 bits would be recorded and which bits would not? 26 A. No. 27 28 Q. Who determined that any recording would be made? 29 A. Himself. 30 31 Q. So he wasn't instructed to record? 32 A. No. 33 34 Q. He started recording because he thought this was 35 comical? 36 A. Yeah, that's what he's told me, yes. 37 38 Q. Did you give any thought as to whether or not the 39 recording was lawful? 40 A. No. 41 42 Q. He wasn't recording it to protect anybody, he was 43 recording it because he thought the situation was comical? 44 A. Yes. 45 46 THE COMMISSIONER: Just for my own -- 47


1 Q. Sorry, Mr Leemhuis, you want to complete an answer, do 2 you? 3 A. I think I said "almost comical" because he couldn't 4 believe it was happening, so there's a slight bit because 5 it was happening. 6 7 THE COMMISSIONER: Just as a matter of legal interest, 8 what law would regulate the filming of events on a site? 9 10 MR AGIUS: It's not the filming, it's the audio. That 11 could be an unlawful listening device recording if it 12 wasn't being done for a particular purpose. 13 14 THE COMMISSIONER: Which statute did you have in mind? 15 16 MR AGIUS: That is a matter I will turn up over lunch. 17 18 THE COMMISSIONER: Very well. 19 20 MR AGIUS: Q. You spoke, or we heard the triple-0 call 21 and in that call and on the transcript you say: 22 23 They've just threatened - threatened myself 24 and my father. 25 26 A. Mmm-hmm. 27 28 Q. That's about halfway down the first page. 29 A. Yes. 30 31 Q. Your father hadn't arrived at the site before you made 32 this call, had he? 33 A. He would have been - I believe if I've said that he 34 would have been on site by then. He was there before the 35 police. 36 37 Q. You weren't exaggerating the alleged threats, 38 were you? 39 A. No. 40 41 Q. Do you have any doubt about that? 42 A. No. 43 44 Q. When we go to your statement, don't you have the 45 police arriving before your father? 46 47 MR STOLJAR: Commissioner, to be fair, the witness should


1 be pointed to the opening line of paragraph 20 of his 2 statement, if these sorts of questions are to be put. 3 4 MR AGIUS: Q. You see by paragraph 19 you have the police 5 already there, do you not? 6 A. Yes. 7 8 Q. In fact, you have the police there at paragraph 14, 9 you have them there at paragraph 12, but you don't have 10 your father there until paragraph 20: 11 12 At about this time (although I cannot be 13 entirely sure of the exact sequence of 14 events), my father, Peter Leemhuis, 15 arrived. An employee at the site took 16 a video of the interaction my father had 17 with Fihi. 18 19 You seem to be suggesting in your statement that your 20 father did not arrive until after the police had arrived? 21 A. I think I've made it clear that I can't be certain of 22 the exact sequence of events. 23 24 Q. You said you can't be entirely sure, but your 25 recollection at the time you made the statement was that 26 your father was there after the police arrived? 27 A. Like I said, it's written there, "Although I cannot be 28 entirely sure of the exact sequence of events." 29 30 Q. What is the answer to my question? Your recollection 31 at the time you made the statement was that your father was 32 there after the police arrived? 33 A. Yes. 34 35 Q. And not before? 36 A. Yes. 37 38 Q. Why do we not hear any threat being made to you or 39 your father on any of the video recordings? 40 A. Did you hear the one where he told him, "Right here. 41 Right now"? 42 43 Q. Yes. You regard that as a threat, do you? 44 A. Yes, and asking us to step us, yes, is a threat. That 45 wasn't -- 46 47 Q. Where do we hear the words "step up"?


1 A. It was on - oh, was it on one of the audios that we 2 missed the last bit of? I'm not sure, but, yes, they were 3 threatening us, yes. 4 5 Q. Why isn't that in your statement? 6 A. That we felt threatened? 7 8 Q. That you were being threatened and being asked to step 9 up and have a fight? 10 A. It's in the police -- 11 12 Q. No, I'm not asking you -- 13 A. Okay, sorry. 14 15 Q. I'm asking you why it's not in your statement. If it 16 happened, why is it not in your statement? 17 A. Because not every detail is my statement. You can't 18 remember every detail from that long ago. I did it to the 19 best of my recollection and we were being threatened. 20 21 Q. How did you come to make this statement on 1 July 22 2015? 23 A. I was asked, I was asked to make a statement about the 24 incident. 25 26 Q. By whom? 27 A. Someone from the solicitors assisting, I'm sure, asked 28 me to make a statement. 29 30 Q. The Royal Commission? 31 A. Yeah, I think so. 32 33 Q. Had you been asked to make a statement or provide any 34 version of what had happened before this time? 35 A. No. 36 37 Q. The police never took a statement from you? 38 A. They took notes, but they never sat me down to take 39 a statement about the incident. 40 41 Q. Did you tell the police that you and your father had 42 been threatened? 43 A. We felt threatened, yes. 44 45 Q. No, no, I didn't ask you that. Did you tell them that 46 you had been threatened? 47 A. I would have, yes, I think so, yes.


1 2 Q. And they didn't take a statement from you about the 3 threats, the nature of the threats, whether or not you were 4 put in fear? 5 A. I don't think so, no. 6 7 Q. You would have expected the police to do that, 8 wouldn't you, if you had told them that you had been 9 threatened? 10 11 THE COMMISSIONER: To echo some of your objections, how 12 can he speculate on the police mentality and reasoning? 13 14 MR AGIUS: If the question is rejected, I won't ask it. 15 16 THE COMMISSIONER: Do you press it? 17 18 MR AGIUS: I would have thought that any citizen who is 19 speaking to a police officer about serious threats would 20 expect the police to take a statement in relation to it and 21 would complain if they didn't, but I am only speaking as 22 a citizen. 23 24 THE COMMISSIONER: What is the question you wish to ask 25 Mr Leemhuis? 26 27 MR AGIUS: Q. Would you not have expected the police to 28 take a statement from you in circumstances where you had 29 complained to them of both you and your father being 30 threatened by the people on the site? 31 A. I'd never called the police for something like that, 32 so I must be honest, I don't - I didn't know what to 33 expect. 34 35 Q. Nevertheless, you were never asked to make a statement 36 about any threats? 37 A. No. 38 39 Q. And in fact you were never asked by the police to make 40 any statement at all as to what had happened at the site? 41 A. No. 42 43 Q. Did you tell them, or otherwise give them to believe, 44 that you didn't want anybody charged? 45 A. I'm not - I'm unclear. I can't remember whether 46 I - you know, I just wanted to - I didn't want to cause any 47 trouble, so I may have said that and, at the end, yes,


1 we're trying to strike a compromise so everybody could move 2 back, move on, yes, but I'm not sure whether I would have 3 asked them for nobody to be charged. I don't remember 4 saying those words. 5 6 Q. You didn't know at the time that a Union officer 7 authorised - that a WHS entry permit holder had a right to 8 enter a site for the purpose of inquiring into a suspected 9 contravention of the Work Health and Safety Act, did you? 10 A. Yes, I knew there was about the Work Health and Safety 11 Act, I don't know every word of the Act, so I'm not sure 12 what your question is there, sorry. 13 14 Q. I didn't ask you whether you knew about the Work 15 Health and Safety Act. 16 A. Yes. 17 18 Q. What I put to you is that you were not aware that 19 a Work Health and Safety entry permit holder had a right to 20 enter a workplace for the purpose of inquiring into 21 a suspected contravention of the Work Health and Safety 22 Act, you were not aware of that, were you? 23 A. I wasn't aware they were allowed to walk straight on 24 to site, no. 25 26 Q. In fact, you thought they could only come on to the 27 site if they had coverage on the site? 28 A. No, that's incorrect. 29 30 Q. Well, didn't you say, right at the beginning of one of 31 the tapes that we have heard today: 32 33 You've got no Union members on this site. 34 35 Or words to that effect? 36 A. Yes. 37 38 Q. Isn't that because your view was that at that time, 39 unless they had members on site, they couldn't come on? 40 A. I think the words before that were something to the 41 effect of, you know, "We're here to protect the Union 42 members", so that was a rebuttal of that type of thing, 43 yes. 44 45 Q. Do you consider that you were obstructing any of these 46 Union officers in their attempt to inquire into a suspected 47 contravention of the Act? Did that even cross your mind?


1 A. No. 2 3 Q. But you concede, don't you, that they may well have 4 seen somebody up on the roof, not seen any lanyard or 5 restraint, and considered him to be at risk of falling from 6 heights; you concede that, don't you? 7 A. Yeah, I said that at the start, yes. 8 9 Q. Well, that would be a reasonable - that would be 10 a reason, would it not, for a Work Health and Safety entry 11 permit holder to want to inquire as to whether or not there 12 has been a breach of the Work Health and Safety Act? 13 A. Yes, and there's an appropriate way to do that as 14 well. 15 16 Q. Where is that to be found in the legislation? 17 18 MR STOLJAR: I object to that. 19 20 THE WITNESS: It does cover all of that off in the 21 legislation, how they enter the site, what they need to do 22 when they are on site, and they followed none of those 23 procedures. 24 25 MR AGIUS: Q. Are they entitled to expect any -- 26 27 THE COMMISSIONER: Just a moment. Mr Stoljar, has the 28 tide of history swept over your objection? 29 30 MR STOLJAR: Yes. 31 32 MR AGIUS: I withdraw the question. 33 34 THE COMMISSIONER: Let's just leave everything where it 35 lies. 36 37 MR AGIUS: Q. You knew, did you, that they were entitled, 38 that is, a Work Health and Safety entry permit holder, to 39 inspect the work system? 40 A. Yes, after they'd produced their permit and as long as 41 they're on site and are acting in accordance with the Work 42 Health and Safety Act, yes, they are. 43 44 Q. Consult with workers? 45 A. Yes. Again, as long as they're complying with the Act 46 while they're doing all of these things, yes. 47


1 Q. Sorry? 2 A. As long as they're complying with the Act while 3 they're doing all of these things, yes. 4 5 Q. I will just shorten this. You are aware that they had 6 certain powers, that is, Work Health and Safety entry 7 permit holders had certain powers upon entry? 8 A. Yes, but not all Union members have the right of entry 9 permit either. 10 11 Q. That's right, but if they did then they had a right to 12 be there, hadn't they? 13 A. They had a right to enter site, yes. 14 15 Q. And yet, you were trying to prevent them from doing 16 that, weren't you? 17 A. They were already on site. I didn't prevent them from 18 coming on site. We didn't -- 19 20 Q. Want them on site? 21 A. It's not a choice of wanting them on site. Sites are 22 a dangerous place and that Act is set up so that we can 23 keep everybody safe, including the Union officials. 24 25 Q. You were attempting to obstruct them, weren't you, in 26 their obligations under the Work Health and Safety Act? 27 A. No, we walked around with a Union official and a Work 28 Health Safety representative after everything had settled 29 down. 30 31 Q. After you challenged their right to be there? 32 A. Their right - their right to be there comes within the 33 Work Health and Safety Act. I'm not sure if you've read 34 it, but it comes with a whole heap of conditions on them as 35 well. Yes, it comes with conditions on me, but they need 36 to meet certain conditions to be allowed on site. 37 38 Q. They produced their permit, did they not? 39 A. No, not all of them produced their permit, I'm led to 40 believe. 41 42 Q. You are led to believe? 43 A. Yes, I wasn't there for their permit and they wouldn't 44 show me when I got there. 45 46 Q. Do you know whether they produced it before or not? 47 A. Not with my own eyes, no. I've been told they


1 wouldn't produce their permits. 2 3 Q. Who told you that? 4 A. Not everybody wouldn't produce - my site foreman. 5 6 Q. Who was that? 7 A. Russell Leemhuis. 8 9 Q. Your brother? 10 A. Yes. 11 12 Q. Do you know it's not referred to in his statement? 13 A. Okay. 14 15 Q. So you're relying upon something he's told you? 16 A. The first conversation we had was, "They won't listen" 17 - the phone conversation I had with him was, "They won't 18 listen to instructions and they won't show me a permit." 19 20 Q. Well, you don't know one way or the other from your 21 own knowledge whether or not a permit was produced? 22 A. Later on that day - if we're going to get into that, 23 later on that day one of the guys was found to not have a 24 permit on that day, so one of the four guys that was on my 25 site didn't have actually a permit, so it was - because 26 they were asked for them afterwards. I think Greg Mason or 27 the police then asked for them and one guy couldn't produce 28 it. 29 30 Q. Which guy was that? 31 A. I'm not sure. 32 33 Q. You don't know what he had been doing on that day? 34 A. Sorry? 35 36 Q. You don't know what he had been doing on the site on 37 that day? 38 A. It was one of the guys that was with the guy 39 standing behind - no, I couldn't be exactly sure, so 40 I really shouldn't answer that, sorry. 41 42 Q. Now -- 43 A. So one guy was there without a permit, yes, I'm led to 44 believe now; that's something that I was told afterwards. 45 46 Q. That is something you were told but not something you 47 witnessed?


1 A. No. I witnessed them asking - I witnessed them asking 2 them for the permit and him not being able to produce it. 3 Yes, I was there at that time. I forget whether it was the 4 police or whether it was WorkSafe, not - not there to -- 5 6 Q. Do you have your statement with you? 7 A. Yes. 8 9 Q. There are just a number of matters I want to put to 10 you about things in your statement. At paragraph 22, you 11 refer to a statement that you say Jason replied saying: 12 13 "We're not leaving the site, and you can't 14 make me." 15 16 A. Yes. 17 18 Q. I suggest to you that the person, Jason, did not say 19 those words, or words to that effect, to a police officer 20 at the site? 21 A. No, I'm sure those words, or words to that effect, was 22 said at that time. 23 24 Q. We don't hear them on any tape recording? 25 A. No. 26 27 Q. I suggest to you that what he said to the police 28 officer was words to the effect, "We're authorised permit 29 holders and we have a right to be here, so we will not be 30 leaving yet"? 31 A. Not the way I recall it. 32 33 Q. Do you deny that that was said? 34 A. Words to that effect. The words might be in there 35 somewhere, but they're in that - they're words to the 36 effect that I said. 37 38 Q. I suggest that the police officer replied with words 39 to the effect, "I'm not sure what the rules are. I need to 40 get advice"? Did you hear that said? 41 A. Something to that effect possibly, yep. 42 43 Q. Yes. 44 A. He did call back to his superiors, I think, at the 45 time. 46 47 Q. In your statement at paragraph 24, you attribute to


1 the police officer the words: 2 3 ... "you have two options, you are either 4 leaving with your legs or we are putting 5 you in the paddy wagon and taking you off 6 site." 7 8 Do you see that? I suggest to you that those words were 9 never said? 10 A. No, that's what was said. 11 12 Q. I suggest to you that what was said were words to the 13 effect, "You need four officials here? Let's be fair 14 dinkum." To which the Union official replied, "Okay, 15 I will stay with one of my colleagues and finalise things"? 16 A. What is the question there, sorry? 17 18 Q. I am suggesting to you that the words in your 19 statement were not said, but the words that were said were 20 as I put to you: "Do you need four officials here? Let's 21 be fair dinkum"? 22 A. I think those words were said as well as the words 23 I said in the statement I've made. 24 25 Q. You don't dispute, do you, that two of the Union 26 officials left the site and that Jason went on a safety 27 walk with the WorkSafe inspector and yourself? 28 A. Yes. 29 30 Q. You don't dispute that? 31 A. No, sorry, yeah, no, I don't dispute it. 32 33 Q. And Mr Kivalu remained on site as well whilst that 34 process took place? 35 A. Yes. 36 37 Q. And that after the safety walk the Union, that is, the 38 person you call "Jason" and Mr Kivalu left the site? 39 A. Yes. 40 41 Q. In your statement at paragraph 26, you said: 42 43 Greg advised us on a few minor points. 44 45 What were the minor points? 46 A. I can't recall now. It might have been a lead 47 untagged or something. It was of a minor nature.


1 I think - I think at the time it was a fridge or something 2 untagged, little things like that, yeah. I can't exactly 3 be sure of that, but there were a few minor points, I'm not 4 disputing that. 5 6 Q. I want to bring you to this conversation that you say 7 you had with the person you refer to or you knew as Fihi at 8 the Plumb Cafe in Fyshwick. In your evidence today you 9 expressed the opinion that he used the words "level playing 10 field" meant people being paid and, in a sense, workers 11 being paid and people charging the same; that is, 12 contractors charging the same. You used the expression but 13 in that sense? 14 A. Yes. 15 16 Q. But nowhere in your statement do we see anything other 17 than the words "create a level playing field" about 18 contractors charging the same for the work that they do; do 19 you agree with that? 20 A. Yes. 21 22 Q. Because Fihi never said anything about contractors 23 charging the same, did he? 24 A. No. 25 26 Q. You agree? 27 A. Yes. He said contractors being on a level - so that 28 everyone is on a level playing field, mmm. 29 30 Q. That might just as well have meant and, indeed, I put 31 to you was more likely to have meant, that contractors 32 would be paying the same rates to their employees and no 33 more than that; wouldn't you agree with that? 34 A. No. 35 36 Q. Do you know how serious the allegation you have made 37 in your evidence about contractors charging the same rates, 38 do you know how serious that is so far as contractors in 39 Canberra are concerned? 40 A. No, not really, sorry. 41 42 Q. Do you know that it's unlawful for people to get 43 together -- 44 A. Absolutely, it's called collusion. 45 46 Q. So you don't think that's serious? 47 A. When there's collusion, yes.


1 2 Q. So upon what basis, upon what evidence which you've 3 seen or witnessed can you say that contractors colluded, to 4 use your word, to charge the same rates for jobs in 5 Canberra? 6 A. In pre-tender meetings, talking to people. There's 7 guys I know in the industry and have grown up in the 8 industry, so in talking to people you get the information. 9 10 Q. What information? 11 A. You know, that people want a level playing field. 12 I mean, you take of that -- 13 14 Q. So people -- 15 16 MR STOLJAR: Excuse me, let him finish his answer. 17 18 THE WITNESS: What was that, sorry? 19 20 MR AGIUS: Q. Had you finished your answer? 21 A. Yes. Yes, that will do. 22 23 MR STOLJAR: You said, "I mean, you take of that", and 24 then Mr Agius interrupted. Did you want to add anything 25 further? 26 27 THE WITNESS: No. You take that as meaning that they've 28 got together 29 30 MR AGIUS: Q. You took it as meaning that they had gotten 31 together? 32 A. I can only say what I know, yes, or I think, yes. 33 34 Q. Did you ever report that to the ACCC? 35 A. No. 36 37 Q. Did you ever report that to the police? 38 A. No. 39 40 Q. Did you ever report that to this Royal Commission? 41 Don't look for it in your statement because you won't find 42 it there. Did you ever report to this Royal Commission 43 that you've had conversations with contractors at the time 44 of tendering where you believed that they had agreed 45 amongst themselves to charge out the same rates? 46 A. I don't only use the Union affiliated - I'm not Union 47 nor non-Union, I use both, so I'm not - in answer to your


1 question, I have answered it in here, is what I thought and 2 what I thought he was asking about a level playing field, 3 so I did put it in my statement, and I elaborated on it 4 with -- 5 6 Q. Did you ever say anything - I'll say the question 7 again. 8 A. Yes. 9 10 Q. I will repeat it. Did you ever report to this 11 Royal Commission that you've had conversations with 12 contractors at the time of tendering where you believed 13 that they had agreed amongst themselves to charge out the 14 same rates? 15 A. It's only my belief. I don't have evidence. I don't 16 have - it's only my belief. I can't, you know, report 17 on - I can't go to someone with my beliefs. 18 19 Q. I'll put the question to you again. 20 A. Yes, go. 21 22 Q. Did you ever report to this Royal Commission -- 23 A. No. 24 25 Q. I'm sorry? 26 A. "No" is the answer to your question did I ever report 27 it, that question. 28 29 Q. You never reported it to the Royal Commission? 30 A. No. 31 32 Q. It just popped out today, did it? 33 A. Well, like I said, it's in there and when they asked 34 me a question about it I gave an answer truthfully and 35 honestly of what I thought that meant, yeah. 36 37 Q. What's in there is that, "He expressed an opinion that 38 we should be using Union approved contractors and that it 39 would create a level playing field." 40 A. Correct. 41 42 Q. It would be most unlikely, would it not, for anybody 43 to suggest to you that you should use people who have 44 colluded together to charge a higher price that you might 45 otherwise find in the open market; that just beggars 46 belief, doesn't it? 47 A. Yes.


1 2 Q. That was never said to you, or anything to that 3 effect, was it? 4 A. No, it was wasn't; it was what I took it to mean. 5 6 Q. It might just as well have meant that you should be 7 using Union approved contractors because they pay their 8 workers EBA rates. It might just as well have meant that. 9 A. That's right, and to you that might and to me it might 10 mean something else, so, yes, I think -- 11 12 Q. What about this Commissioner, who is not a builder - 13 do we take a wild stab at what it means? 14 A. I'm not sure, that's up to him. I can only tell you 15 what I thought at the time and what I know and try and 16 answer the questions as truthfully and honestly as I can. 17 18 Q. Nowhere in your statement do you say anything of any 19 conversation with Fihi about what your charge-out 20 rates - what your charge-out rates for building work were? 21 A. No. 22 23 Q. Isn't that right? 24 A. Correct. 25 26 Q. And nowhere in your statement do you say anything 27 about a conversation with Fihi where you and he spoke about 28 what the charge-out rates of contractors were? 29 A. No. 30 31 Q. In fact, those topics were never discussed, were they? 32 A. No. 33 34 Q. I suggest to you that your professed understanding of 35 the words "create a level playing field", is puffery by 36 you; in other words, you have blown it up? 37 A. I think that is your opinion, you are entitled to it, 38 yes. 39 40 Q. That is a reasonable opinion, isn't it? 41 A. You can have whatever opinion you like, I guess, but 42 my opinion still stands. You can't change my opinion of 43 what I thought it meant. 44 45 Q. Did you inquire of any of the workers that were on 46 site at Beaconsfield as to whether any of them had 47 telephoned the Union to report an occupational health and


1 safety concern, or a Work Health and Safety concern? Have 2 you ever made that inquiry of any of the people working for 3 you who were on site that day? 4 A. No, I don't think so. 5 6 MR AGIUS: Would you just excuse me for a moment? 7 8 THE COMMISSIONER: Certainly. 9 10 MR AGIUS: Thank you, Mr Commissioner, that is my 11 examination. 12 13 THE COMMISSIONER: Thank you, Mr Agius. Mr Muller, any 14 examination? 15 16 MR MULLER: I have no questions, Commissioner. 17 18 THE COMMISSIONER: Mr Stoljar? 19 20 <EXAMINATION BY MR STOLJAR: 21 22 MR STOLJAR: Q. Mr Leemhuis, you were asked some 23 questions by Mr Agius about what matters Mr Mason may have 24 observed and you mentioned the fridge was not tagged and 25 the like. Did you receive any notice of improvement from 26 WorkSafe after -- 27 A. Not on that occasion, no. 28 29 Q. So you have received them but not relating to this 30 Beaconsfield site? 31 A. Correct. 32 33 Q. Did you receive any correspondence or follow-up from 34 WorkSafe after the Beaconsfield inspection? 35 A. No, not that I can recall. 36 37 Q. One other thing - Mr Agius asked about what you might 38 reasonably expect the police to have done if a threat had 39 been reported. Can I show you a document. This is the 40 police incident report in relation to the Beaconsfield 41 incident. Did you ever see this or was a copy circulated 42 to you, Mr Leemhuis? 43 A. No. 44 45 Q. You have never seen it before? 46 A. No. 47


1 MR STOLJAR: I won't ask about it then. I would ask that 2 this document be received into evidence. 3 4 THE COMMISSIONER: Subject to any objection, that will be 5 Darrell Leemhuis MFI-5. 6 7 DARRELL LEEMHUIS MFI-5 POLICE INCIDENT REPORT RE 8 BEACONSFIELD INCIDENT 9 10 MR STOLJAR: Can I just note for the record that under 11 "Allegation/Incident Description", it is recorded that: 12 13 Union officials have threatened owners with 14 violence. 15 16 And then under the heading "Offences Disclosed" - I am 17 sorry, then there is some more information. Then over on 18 the next page it says that during the time the police were 19 attempting to resolve the issue, a member from WorkCover 20 attended: 21 22 Police requested two members that were 23 accused of making threats leave the site 24 until a WorkCover representative arrived, 25 to which they agreed. The males were then 26 escorted off the property. 27 28 I am just reminded that there is some personal information 29 in Leemhuis MFI-5, an address and a phone number and the 30 like, and I would ask that that not be admitted into 31 evidence - and a date. 32 33 THE COMMISSIONER: You are speaking about halfway down the 34 first page? 35 36 MR STOLJAR: Yes. 37 38 THE COMMISSIONER: I direct that the residential address 39 and telephone number on the first page of Darrell Leemhuis 40 MFI-5 not be published. 41 42 MR STOLJAR: It is really just to rebut the proposition 43 that there was some invention of the allegation of threats 44 being made, despite the fact that that was said in the 45 triple-0 call; it is clear that the police were aware of 46 that. 47


1 MR AGIUS: If my learned friend is going to put arguments 2 about this, my friend should draw attention to the fact 3 that the form also records that: 4 5 No offences were disclosed. 6 7 And he should fairly concede that the information about 8 Union officials have threatened owners may well have come 9 from the history obtained from the triple-0 call. 10 11 THE COMMISSIONER: In view of my fatigue and ill 12 condition, I abstain from adding to this debate, but 13 a certain amount could be added to the debate in light of 14 the evidence, documentary, which has been received this 15 morning. Are there any more questions, Mr Stoljar? 16 17 MR STOLJAR: No, Commissioner. 18 19 THE COMMISSIONER: Is there any objection to 20 Mr Darren Leemhuis being excused? 21 22 MR STOLJAR: No, Commissioner. 23 24 THE COMMISSIONER: Mr Leemhuis, you were brought here on 25 a summons. You are excused from further attendance on that 26 summons. You can leave the witness box now. Thank you 27 very much. 28 29 THE WITNESS: Thank you. 30 31 <THE WITNESS WITHDREW 32 33 THE COMMISSIONER: The next witness? 34 35 MR STOLJAR: Mr Russell Leemhuis. 36 37 <RUSSELL WADE LEEMHUIS, sworn: [12.35pm] 38 39 <EXAMINATION BY MR STOLJAR: 40 41 MR STOLJAR: Q. Can you tell the Commission your full 42 name? 43 A. Russell Wade Leemhuis. 44 45 Q. You are a resident of New South Wales? 46 A. Yes. 47

.16/07/2015 CFMEU ACT 289 R W LEEMHUIS (Mr Stoljar) Transcript produced by DTI

1 Q. You are a foreman with A&P Leemhuis Builders Pty Ltd? 2 A. Yes. 3 4 Q. How long have you been in the construction industry? 5 A. 16 years. 6 7 Q. You have prepared a witness statement dated 6 July 8 2015. Do you have a copy of that with you? 9 A. Yes. 10 11 Q. Is the content of your statement true and correct? 12 A. Yes. 13 14 MR STOLJAR: I would ask that Mr Russell Leemhuis' 15 statement be received into evidence 16 17 MR AGIUS: I am sorry, Mr Commissioner, I was busy reading 18 something. 19 20 THE COMMISSIONER: That is all right. Do you have some 21 objections? 22 23 MR AGIUS: We have some objections in relation to this 24 statement. 25 26 THE COMMISSIONER: Is it simpler to do them, as it were, 27 orally, or do you have a sheet of paper? 28 29 MR AGIUS: I have a sheet of paper. Might I just, 30 for convenience, in case I am distracted with the next 31 witness, also hand up a sheet in relation to 32 Matthew Leemhuis who we expect to be the next witness? 33 34 THE COMMISSIONER: Certainly. That is very helpful. This 35 is like, not precisely the same as but to a similar effect 36 as an equivalent objection to Darren Leemhuis' statement, 37 namely, when Mr Greg Mason is reported as saying, "There is 38 no safety issue here", you object to those words? 39 40 MR AGIUS: In 13, yes. 41 42 THE COMMISSIONER: I think for consistency, if for no 43 other reason, delete the words "and said words to the 44 effect of, 'There is no safety issue here.'" You have no 45 problem with that, Mr Stoljar? 46 47 MR STOLJAR: No, Commissioner.


1 2 THE COMMISSIONER: That objection is upheld. Now, 3 paragraph 16. Mr Stoljar, what do you say about 4 paragraph 16? 5 6 MR STOLJAR: It is certainly not admissible in a strict 7 sense, Commissioner, but you are not bound by the rules of 8 evidence. I can ask the witness some questions about the 9 source of his knowledge. 10 11 THE COMMISSIONER: I think the cleanest thing to do is 12 reject it at this stage but grant you leave to go into the 13 matter if necessary. Are you happy with that, Mr Agius? 14 15 MR AGIUS: If it is rejected, yes. 16 17 THE COMMISSIONER: It is rejected, but he can have another 18 go, in effect. Now, 17? 19 20 MR STOLJAR: I think that travels with the same objection 21 in Mr Darrell Leemhuis's statement. 22 23 THE COMMISSIONER: The objection to paragraph 17 is 24 upheld, Mr Agius. Anyway, subject to those objections, 25 Mr Russell Wade Leemhuis' evidence statement is received 26 into evidence. Don't worry about that little debate just 27 then. They are technical questions about reception of 28 evidence, which are very fascinating but not to people like 29 you. 30 31 STATEMENT OF RUSSELL WADE LEEMHUIS DATED 06/07/2015 32 33 MR STOLJAR: Q. Mr Leemhuis, I think you said you have 34 been in the construction industry for about 16 years? 35 A. Yes. 36 37 Q. With A&P Leemhuis or with others? 38 A. Others, but mainly A&P Leemhuis. 39 40 Q. How long have you been with A&P Leemhuis? 41 A. I'd say 14 years at least. 42 43 Q. You were, yourself, working on the site at 44 Beaconsfield which was the construction of a number of 45 warehouses? 46 A. Yes. 47


1 Q. In paragraph 6 you say that you saw them, the three 2 CFMEU officials on the site, and you knew Mr Kivalu? 3 A. Yes. 4 5 Q. Paragraph 9 - just before I get to that, at 6 paragraph 8, did you ask them for any permit? 7 A. No, I did not. 8 9 Q. You didn't ask them? 10 A. No. 11 12 Q. And then in paragraph 9 you say that there was 13 a heated exchange and how are you feeling at this time when 14 you are having this exchange you are describing in 15 paragraph 9? 16 A. Scared. 17 18 Q. You say in your statement: 19 20 I was shaking with fear during this 21 interaction. 22 23 Did you mean you were actually concerned about, what, the 24 language and the actions that you were witnessing? 25 A. Yes. 26 27 MR STOLJAR: I have nothing further, thank you. 28 29 THE COMMISSIONER: Yes. Yes, Mr Agius. 30 31 <EXAMINATION BY MR AGIUS: 32 33 MR AGIUS: Q. Do you have a copy of your statement there? 34 A. Not on me. 35 36 Q. At paragraph 9, you speak there of following the 37 person you knew as Fihi around the site? 38 A. Yes. 39 40 Q. And you say a heated exchange took place between you? 41 A. Yes. 42 43 Q. Did that exchange start with you saying to him, 44 "Get the fuck off my site, this is private property"? 45 A. No. 46 47 Q. So you did say that?

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1 A. Yes. 2 3 Q. Were you aware that if he was the holder of a Work 4 Health and Safety permit, he was entitled to enter the site 5 for the purpose of inquiring into a suspected contravention 6 of the Act, the Work Health and Safety Act? 7 A. No. 8 9 Q. Are you aware of that now? 10 A. Yes, I am. 11 12 Q. When did you become aware of that? 13 A. After this incident. 14 15 Q. Why don't we read anything about that in your 16 statement? 17 A. I don't know. 18 19 Q. You don't know? 20 A. No. 21 22 Q. Because you weren't asked? 23 A. No. 24 25 Q. You weren't asked about what your view was as to his 26 or any of the union officers' lawful right to be on site? 27 A. No. 28 29 Q. There's just one further matter. At paragraph 14, 30 midway through, you say you also remember a police officer 31 saying words to the CFMEU officials to the effect of, "You 32 have two options, leave yourself or leave in a paddy 33 wagon." I suggest that those words were not said? 34 A. They were said. 35 36 Q. I suggest that what was said were words to the effect, 37 by the police, "Do you need four officials here? Let's be 38 fair dinkum", and the Union responded, or the 39 representative of the Union responded, "Okay, I will stay 40 with one of my colleagues and finalise things"; I suggest 41 that was the conversation? 42 A. I don't recall that. 43 44 Q. When you say you don't recall it, do you mean it may 45 have happened but you don't remember it, or are you saying 46 that to the best of your memory it did not happen? 47 A. To the best of my memory that did not happen.


1 2 Q. Can you deny it happened? 3 A. No. 4 5 Q. Did you say to the Union officials, when they arrived, 6 "I'm not going to talk to you unless you go outside the 7 gate"? 8 A. Yes, I did. 9 10 Q. And they refused to leave? 11 A. Yes, they did. 12 13 Q. And they told you they were there for a safety issue? 14 A. Yes. 15 16 MR AGIUS: Thank you. 17 18 THE COMMISSIONER: Yes, thank you, Mr Agius. Mr Muller, 19 any questions? 20 21 MR MULLER: No questions, Commissioner. 22 23 THE COMMISSIONER: Any further questions, Mr Stoljar? 24 25 MR STOLJAR: I have no questions. 26 27 THE COMMISSIONER: Does anyone object to 28 Mr Russell Leemhuis being excused from further attendance 29 on his summons? 30 31 MR STOLJAR: No. 32 33 THE COMMISSIONER: Mr Leemhuis, a summons brought you here 34 today to give evidence. You are excused from any further 35 attendance on that summons. You can leave the witness box. 36 Thank you very much for giving up your time in giving 37 evidence. 38 39 <THE WITNESS WITHDREW 40 41 THE COMMISSIONER: Next we have, do we, Matthew Leemhuis? 42 43 MR STOLJAR: Mr Matthew Leemhuis. 44 45 46 47 <MATTHEW JAMES LEEMHUIS, sworn: [12.45pm]


1 2 THE COMMISSIONER: Is it appropriate to raise the question 3 of objections now or after? Mr Agius, I have your list of 4 objections. I just don't quite fully understand them. Are 5 the numbers right? You see, you object to paragraph 13. 6 That says: 7 8 Some time after that, the CFMEU officials 9 left the site and work recommenced. 10 11 It is not earth-shattering stuff, but is it inadmissible? 12 13 MR AGIUS: I think that is an error. I think, for reasons 14 I can't explain, this was prepared in relation to another 15 matter. Would you give me just a moment, Mr Commissioner, 16 and I'll -- 17 18 THE COMMISSIONER: Certainly. Don't worry about this, 19 Mr Leemhuis, it is just technical legal-type questions we 20 are considering. 21 22 MR AGIUS: Yes. That document relates to another 23 statement. I apologise for the confusion but there are no 24 objections to this statement. 25 26 THE COMMISSIONER: Very well. Mr Stoljar? 27 28 <EXAMINATION BY MR STOLJAR: 29 30 MR STOLJAR: Q. Could you tell the Commission your full 31 name? 32 A. Matthew James Leemhuis. 33 34 Q. You are a resident of the ACT? 35 A. Yes. 36 37 Q. You are a site foreman with A&P Leemhuis Builders 38 Pty Ltd? 39 A. Yes. 40 41 Q. How long you have been in the construction industry? 42 A. Eight and a half years. 43 44 Q. Always with A&P? 45 A. Always. 46 47 Q. And you were working on the Beaconsfield site in

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1 around mid-2013? 2 A. Yes. 3 4 Q. And you have endeavoured to set out what you observed 5 in your witness statement. Mr Leemhuis, do you have a copy 6 of your statement with you there? 7 A. No. 8 9 Q. I will provide you with a copy. Is the content of 10 your statement true and correct? 11 A. Yes, it is. 12 13 MR STOLJAR: I would ask that Mr Matthew Leemhuis's 14 statement of 7 July 2015 be received into evidence. 15 16 THE COMMISSIONER: Yes. That will be received into 17 evidence. 18 19 STATEMENT OF MATTHEW JAMES LEEMHUIS DATED 07/07/2015 20 21 MR STOLJAR: Q. If you come to paragraph 7 of your 22 statement, you say: 23 24 I remember that either Russell or I asked 25 to see the CFMEU officials' paperwork, but 26 they refused to show us. 27 28 Who did the talking, was it you or Russell? 29 A. To the best of my memory, I cannot recall who was 30 doing the talking at that time. 31 32 Q. Doing the best you can, what did you two say and what 33 did the two officials say back? 34 A. I remember paperwork being asked for at the stages to 35 when we first saw them. I remember them saying that they 36 had no reason to produce paperwork, there's been a safety 37 breach, and that they had the right to be there under the 38 Act. 39 40 Q. Did they identify what the safety breach was? 41 A. At that time, no. 42 43 Q. At any time? 44 A. At me, no. 45 46 MR STOLJAR: I have nothing further, thank you, 47 Commissioner.

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1 2 THE COMMISSIONER: Yes, Mr Agius? 3 4 <EXAMINATION BY MR AGIUS: 5 6 MR AGIUS: Q. A particular type of paperwork was asked 7 for, was it? 8 A. Just paperwork. To the best of my knowledge back 9 then, I knew that they must produce something and they 10 produced nothing, so -- 11 12 Q. Wasn't there a particular type of paperwork that was 13 being asked for? 14 A. To the best of my knowledge, no. 15 16 Q. I suggest to you that nobody was asked for a permit 17 under the Work Health and Safety Act? 18 A. That is incorrect and they stated that they had the 19 right to be there under the Act. 20 21 Q. But nobody was asked to produce any permit under the 22 Work Health and Safety Act? 23 A. They were asked to produce paperwork, not permit as 24 such, but paperwork saying they were allowed on site. 25 26 Q. They said that they had a right to be on site under 27 the Work Health and Safety Act? 28 A. That is correct. 29 30 Q. You didn't believe them? 31 A. I didn't have an opinion. I know they have the right 32 to be on site under the Act, but to my knowledge at that 33 stage I knew they also had to produce paperwork. 34 35 Q. What paperwork? 36 A. Just paperwork saying that there had been a situation 37 for them to be called to site as such. 38 39 Q. Are you aware that they don't have to produce any 40 paperwork identifying what the situation was -- 41 A. No, I was not. 42 43 Q. -- that called them to site? 44 A. No. 45 46 Q. You weren't aware of that then? 47 A. No.

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1 2 Q. And you're not aware of that now? 3 A. I am aware of that now. We had a big de-briefing 4 after this situation. 5 6 MR AGIUS: I have no further questions. 7 8 THE COMMISSIONER: Yes, thank you, Mr Agius. Mr Muller? 9 10 MR MULLER: No questions, Commissioner. 11 12 THE COMMISSIONER: Mr Stoljar? 13 14 MR STOLJAR: I have nothing further, thank you, 15 Commissioner. 16 17 THE COMMISSIONER: Is there any objection to Mr Leemhuis 18 being excused from further attendance? 19 20 MR STOLJAR: No, Commissioner. 21 22 THE COMMISSIONER: Mr Leemhuis, you came here on 23 a summons. You are excused from any further attendance on 24 that summons, so you can leave the witness box. Thanks for 25 giving up the time to come. 26 27 <THE WITNESS WITHDREW 28 29 THE COMMISSIONER: The next witness is? 30 31 MR STOLJAR: The next witness is Douglas Jones. 32 33 THE COMMISSIONER: Very well. 34 35 MR AGIUS: I haven't seen a statement from this witness. 36 37 THE COMMISSIONER: That is unfortunate. 38 39 MR STOLJAR: I am told that it is on the electronic court 40 book which Mr Agius and his team have access to. 41 42 THE COMMISSIONER: Before we proceed in this way, 43 Mr Agius, by getting rid of, as it were, the preliminaries 44 with Mr Jones, subject to your right to object, and if you 45 do object, could we return to the matter after lunch? 46 47 MR AGIUS: May it please.

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1 2 THE COMMISSIONER: Is that satisfactory from your point of 3 view? Very well, yes. 4 5 <DOUGLAS JOHN JONES, sworn: [12.52pm] 6 7 <EXAMINATION BY MR STOLJAR: 8 9 MR STOLJAR: Q. Your name is Douglas John Jones? 10 A. Yes. 11 12 Q. You are a resident of the ACT? 13 A. Yes. 14 15 Q. You are the site foreman and manager for Ellcon 16 Concrete Services and Ellcon Group? 17 A. Yes. 18 19 Q. You have prepared a statement in these proceedings. 20 Do you have a copy of your statement there? 21 A. I have a copy here, yes. 22 23 MR STOLJAR: I see Mr Agius does have a copy. 24 25 MR AGIUS: No, that's not right. My junior has this copy. 26 Apparently this went on to the court book after I had 27 finished work yesterday and after we had filed the material 28 we were due to file. I was not aware of its existence. 29 30 MR STOLJAR: Q. Is the content of your statement true 31 and correct? 32 A. Yes. 33 34 MR STOLJAR: I would ask that it be received into 35 evidence, Commissioner. 36 37 THE COMMISSIONER: Subject to any objections Mr Agius may 38 wish to advance after the luncheon adjournment, the 39 statement of Mr Douglas Jones is received into evidence. 40 41 STATEMENT OF DOUGLAS JOHN JONES 42 43 MR STOLJAR: Q. How long have you been involved in the 44 construction industry, Mr Jones? 45 A. About 35 years. 46 47 Q. Is it mainly commercial or residential, what sort of

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1 work do you do? 2 A. A bit of everything. 3 4 Q. In concrete, is it? 5 A. Yes, concreting, yes. 6 7 Q. Always concreting? 8 A. Yes. 9 10 Q. And Ellcon is one of the companies that subcontracts 11 to A&P? 12 A. Yes. 13 14 Q. And you were doing that in December 2012 at the 15 Beaconsfield site? 16 A. We were on site, yes. 17 18 Q. Did you have to work on the site to do that? 19 A. I beg your pardon? 20 21 Q. You were actually on the site yourself? 22 A. Yes, I was on site at that time when it - yes. 23 24 Q. So you were there on the day that the CFMEU came to 25 the site? 26 A. Yes, and seven or eight men as well. 27 28 Q. I'm sorry? 29 A. Seven or eight of our men as well, like, the 30 concreters. 31 32 Q. I am sorry, you mean your team? 33 A. Yes, our team, yes, yes. 34 35 Q. Yes. And then at paragraph 8 you say you had been in 36 the industry long enough and you say something about the 37 tactics of the Union, but have you seen this before, 38 a concrete pour being interrupted? 39 A. Yes. It just dates back from the Quadrant, from one 40 in here, in town here, and things like that. We always 41 had - there was always sort of union trouble or something 42 going on, you know, with those places. 43 44 Q. In relation to concrete pour? 45 A. Yeah, concrete pours and all that. Yes, it's sort of 46 an easier target the concrete because it's got to go off 47 and, you know, you've only got a certain time to place it


1 and finish it, and that, and it's probably an easier target 2 than most, in my opinion. 3 4 Q. In paragraph 15 you say that Mr Kivalu said something 5 to you. You call him "Fihi" and you said: 6 7 There'll be no concrete to be poured today. 8 There'll be no work happening today. 9 10 Are you sure he said that to you? 11 A. Yeah, I was trying to back the truck up. I just hate 12 the waste of the concrete, I know how expensive it is, and 13 I just wanted to back it up and I was trying to back the 14 truck up and that's when they stood in there and they just 15 said, "It's not happening", and then I tried to get the 16 truck driver to back up but he - you know, I couldn't put 17 the pressure on him too much because at the end of the day 18 he's just driving the truck. 19 20 Q. Is he an Ellcon truck driver? 21 A. No, no, no, that was Queanbeyan Premix, I believe, 22 there. 23 24 Q. They were supplying the concrete? 25 A. They were supplying the concrete on that day. 26 27 Q. It was black concrete, was it? 28 A. Yes, black concrete, yeah. 29 30 Q. When you say you were trying to get the truck to back 31 up, you were just trying to direct the truck? 32 A. Direct him back to our site, drive back to the spot 33 where we had to do our paving there. 34 35 Q. Where was Fihi standing? 36 A. Directly behind the truck. 37 38 Q. The truck couldn't move? 39 A. Yeah, it wasn't moving, not without running over him. 40 41 Q. And you explain a bit more about the concrete and how 42 it deteriorates, in paragraph 17. It has to be poured 43 within an hour, is it? 44 A. Yeah. Well, otherwise it is a hot load. It sits in 45 the concrete, what we refer to as a hot load, it sits in 46 there too long and the concrete just, with the chemicals 47 and all that, it heats up and it does - it's no good to you


1 after an hour or so, and then you start adding water and it 2 just, you know, it doesn't get any better. 3 4 Q. In paragraph 20, it is a small point, it says: 5 6 I figured Peter was paying the bill so it 7 was [his] call. 8 9 Was it? 10 A. Yes. I looked across - at that time I looked across 11 to Peter. I think Darrell was there as well and Peter and 12 I've known Peter, all the family, but I've known him a lot 13 longer and I just said, "You have to make a decision", sort 14 of thing, "What do you want to do?" And he sort of said, 15 nodded and let it go. Things were still a bit, you know, 16 heated at that time still, trying to back the truck up and 17 everyone was still a bit uncomfortable at that time, so we 18 just didn't want any more confrontation, how I seen it and 19 fair enough, you know. 20 21 MR STOLJAR: I have nothing further, thank you, 22 Commissioner. 23 24 THE COMMISSIONER: I think we might take the luncheon 25 adjournment now. The hearing will resume at 2pm 26 27 LUNCHEON ADJOURNMENT 28 29 THE COMMISSIONER: Mr Agius, if this is inconvenient, 30 please tell me so, but I just thought I might ask you if 31 there is any update on the question of instructions in 32 relation to that matter I was asking Mr Kivalu questions 33 about? 34 35 MR AGIUS: I do have instructions on that and I am in 36 a position to just ask some questions of Mr Kivalu on that 37 one issue. It is really the statement he made at the end 38 of his evidence. 39 40 THE COMMISSIONER: Yes, quite. I understand that. Do you 41 want to do it right now or finish Mr Jones and then go to 42 Mr Kivalu? 43 44 MR AGIUS: I am in the Commission's hands. 45 46 THE COMMISSIONER: Will you be long with Mr Jones? 47


1 MR AGIUS: I won't be long. 2 3 THE COMMISSIONER: We may as well deal with Mr Jones then. 4 5 MR AGIUS: Commissioner, we do have an objection to 6 paragraph 8. I have made inquiries. This statement went 7 on the court book last night. I understand this can 8 happen, but we didn't receive the usual notification of the 9 addition of a fresh statement. 10 11 THE COMMISSIONER: Mr Stoljar? 12 13 MR STOLJAR: Commissioner, it is impermissible in a 14 commercial court, but you are not bound by the strict rules 15 of evidence. This gentleman has been in the industry for 16 a long time and it was his expression of opinion about what 17 the practice is. It is what it is, Commissioner. My 18 friend can make submissions about weight in due course, but 19 in my submission it should be received. 20 21 THE COMMISSIONER: Yes. I see the point of the objection 22 but I think, Mr Agius, I will allow it, for what it's 23 worth. I think I have already received it into evidence; 24 that is to say, the whole statement. 25 26 MR AGIUS: Thank you. 27 28 <EXAMINATION BY MR AGIUS: 29 30 MR AGIUS: Q. Mr Jones -- 31 32 THE COMMISSIONER: I must say, Mr Agius, I thought there 33 was another one you might object to and that is the first 34 sentence of paragraph 22. 35 36 MR AGIUS: Yes, I missed that. 37 38 THE COMMISSIONER: That is pretty much in the same 39 category. 40 41 MR AGIUS: We do object to that but on the same basis, 42 that there's no foundation for that and here it is 43 expressed as knowledge. 44 45 MR STOLJAR: I must say, Commissioner, that falls into 46 a slightly different category from paragraph 8, in that it 47 is not an expression of opinion about Union practice, an

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1 expression of opinion about what the Union was doing on 2 that day. I don't think I can defend it in the same way 3 I have defended paragraph 8, so I don't press that first 4 sentence. 5 6 THE COMMISSIONER: Yes. Mr Agius objects to the first 7 sentence after some prompting to the first sentence of 8 paragraph 22 and I will uphold that objection; so let's 9 proceed. 10 11 MR AGIUS: Q. Mr Jones, it is a small point, but in 12 paragraph 20 you speak about costs: 13 14 The concrete would have cost Peter between 15 $1,500 to $2,000, plus staff costs and 16 dumping costs. 17 18 And you have estimated the Ellcon costs at $2,000, so that 19 comes to about $4,000; is that right? 20 A. Yes. Yes. 21 22 Q. Would there be dumping costs on top of that? 23 A. Oh, look, it's all - I haven't got the exact figures. 24 It wouldn't be hard to get, but, look, it was 7 - I think 25 it was 7 or 7.4 metres of concrete, so $200 a metre, 26 roughly, is, say, 1,500 and then tip fees, I don't know 27 exactly what they were charging for tip fees but it was an 28 estimate, and then ours was, you know, something similar, 29 it was around that. You know, we go to the three and 30 a half to four and a half range, it doesn't matter, you 31 know. 32 33 Q. The cost to Ellcon, $2,000 in wages, $1,500 to $2,000 34 for the concrete? 35 A. Yes. 36 37 Q. Which was to be tipped? 38 A. Yes. 39 40 Q. Then the tipping costs? 41 A. I believe it was tipped, yes. I honestly don't know 42 exactly how much - they charged so much per cubic metre to 43 dump it. 44 45 Q. But well under $10,000 or $15,000? 46 A. I think so, yeah. 47


1 Q. On this day, I take it you were never told why the 2 Union had come to the site at Beaconsfield? 3 A. That's correct. 4 5 Q. You don't know whether or not they saw somebody on the 6 roof who appeared to them not to be protected from falling? 7 A. No, I never seen any of that, no. 8 9 Q. You never saw it but you don't know whether they saw 10 that? 11 A. No, that's correct, yeah. 12 13 Q. Did you know that if they had permits under the Work 14 Health and Safety Act, they were entitled to come on to the 15 site to investigate a matter if they reasonably believed 16 that there was a breach of the Work Health and Safety Act? 17 A. Yes. No, I wasn't sure of that either. 18 19 Q. In paragraph 12, you are not suggesting there that 20 WorkCover had never been on to an A&P site -- 21 A. No. 22 23 Q. -- to deal with safety issues? 24 A. No, no, I say that, in my eyes, you know, I'm pretty 25 up with all that sort of stuff as far as - because of my 26 men only and that's why I look after the crew we've got 27 and, yeah, I've never had any dramas. 28 29 Q. With concrete? 30 A. Yeah, with the concrete side of it, yeah. 31 32 Q. But you don't know whether -- 33 A. Had any other -- 34 35 Q. Had other issues? 36 A. No. I can only go on when I'm there because we go at 37 different times for different trades and I can only go on 38 while I'm there and we're doing the concreting, yeah. I've 39 never had a problem. 40 41 Q. In relation to concrete? 42 A. Concreting, no. 43 44 Q. But you don't know whether, for example, they had been 45 investigated because a wall had fallen over or because 46 there had been serious breaches of work, health and safety? 47 A. No, I was never on site if any of that occurred, no,


1 not while we've been there. 2 3 Q. Of course, if you had known, and if it be the case 4 that the Union was on site to investigate a report of 5 a safety breach in relation to someone being at risk of 6 falling from heights, your view about this being 7 intimidation would be something that you would modify, 8 wouldn't it? 9 A. Oh, for sure, yeah, yep, yep. 10 11 MR AGIUS: That's the cross-examination. 12 13 THE COMMISSIONER: Yes. Thank you, Mr Agius. Mr Muller? 14 15 MR MULLER: No questions. 16 17 THE COMMISSIONER: Any more questions, Mr Stoljar? 18 19 MR STOLJAR: I have nothing further, thank you, 20 Commissioner. 21 22 THE COMMISSIONER: Does anyone oppose Mr Jones being 23 excused? 24 25 MR STOLJAR: No, Commissioner. 26 27 THE COMMISSIONER: Mr Jones, you are excused from further 28 attendance on the summons. Thank you very much for giving 29 up your time in coming along today. 30 31 THE WITNESS: Not a problem. Thank you. 32 33 <THE WITNESS WITHDREW 34 35 THE COMMISSIONER: Perhaps Mr Kivalu should come back into 36 the box, Mr Agius. 37 38 <HALAFIHI KIMONU KIVALU, on former oath: [2.08pm] 39 40 <EXAMINATION BY MR AGIUS: 41 42 MR AGIUS: Q. Mr Kivalu, I just want to take up something 43 you said at the bottom of page 239 and the first part of 44 page 240. Is it possible for that to come up on the 45 screen? I'd rather you have an opportunity to read it than 46 I just read it to you. There are numbers down the side of 47 the page and if you look at page 239, at about line 41,

.16/07/2015 CFMEU ACT 306 H K KIVALU (Mr Agius) Transcript produced by DTI

1 Mr Stoljar asked you: 2 3 But isn't the position you are now 4 advancing that Mr Taleb is trying to 5 blackmail you in some way? 6 7 And your answer was: 8 9 Yes, he did. 10 11 Question: 12 13 The position is that you in fact were 14 blackmailing him, isn't it? You were 15 demanding money from him in exchange for 16 jobs? 17 A. No, no, no. 18 19 And then my learned friend began to ask a question and you 20 said this: 21 22 He blackmailed me to my boss, Dean Hall, 23 okay, and I decided he should have his own 24 medicine back at him. 25 26 And then you complete that answer. So there you refer to 27 Mr Taleb blackmailing you to your boss, Mr Hall? 28 A. Yes. 29 30 Q. And you said later in your evidence that you had 31 a telephone conversation with Mr Hall about this? 32 A. I think I spoke to Dean Hall about it, yes. 33 34 Q. When you say he was trying to blackmail you to your 35 boss, what did you mean by that? 36 A. My understanding is he came in to the office to see 37 Dean Hall in regards to me. My understanding is he had 38 some recording to turn over to Dean Hall, but decided to 39 back off. 40 41 Q. So blackmailing you to your boss, did Mr Taleb ever 42 say anything to you which could amount to blackmail? In 43 other words, did he ever threaten to do anything to you, or 44 not to do something, unless you did something else? 45 A. Sorry, I went blank there. 46 47 Q. I am interested in your use of the expression


1 "blackmail" you to your boss. 2 A. Yes. He went to see my boss in - apparently he had 3 something to give him about me because I - yeah, I didn't 4 help him with anything. 5 6 Q. Is that what you mean by blackmailing you to your 7 boss? 8 A. Yes. 9 10 Q. Did Mr Taleb ever threaten you that he would go to 11 your boss and do something? 12 A. Yes. 13 14 Q. What did he say to you? 15 A. Sorry, yeah. No, that's the only - sorry, that's the 16 only incident that I know of of the blackmail is when my 17 boss told me that, that Elias came to see him. 18 19 Q. So your boss, Mr Hall, told you that Mr Taleb had come 20 to see him? 21 A. Yes. 22 23 Q. But that's what you mean by blackmailing you to your 24 boss? 25 A. Yes. 26 27 Q. You weren't present on the occasion that Mr Elias 28 visited -- 29 A. No. 30 31 Q. -- Mr Hall? 32 A. No 33 34 MR AGIUS: Thank you. 35 36 THE COMMISSIONER: Thanks, Mr Agius. Mr Muller, anything 37 arising out of that? 38 39 MR MULLER: Nothing arising, Commissioner. 40 41 THE COMMISSIONER: Mr Stoljar? 42 43 MR STOLJAR: I have nothing further, Commissioner. 44 45 THE COMMISSIONER: Does anyone oppose Mr Kivalu being 46 excused from further attendance on his summons? Mr Kivalu, 47 you are excused from further attendance on the summons that


1 brought you here. You can leave the witness box and you 2 can leave the hearing room. Thank you. 3 4 <THE WITNESS WITHDREW 5 6 MR STOLJAR: Commissioner, I have a statement of 7 Jane Treherne, one of the solicitors at the 8 Royal Commission, which I provide to you, dated 16 July 9 2015. It is simply notes that a notice to produce was 10 issued to WorkSafe and attaches the correspondence. In 11 a nutshell, it indicates or the correspondence indicates 12 that WorkSafe doesn't hold any records of the Beaconsfield 13 incident. I would ask that that statement be received into 14 evidence. 15 16 THE COMMISSIONER: Any objection? 17 18 MR AGIUS: No. 19 20 THE COMMISSIONER: Jane Treherne's statement of 16 July 21 2015 is received into evidence. 22 23 STATEMENT OF JANE TREHERNE DATED 16/07/2015 24 25 MR STOLJAR: I note that my friend has been served with 26 a statement by Detective Sergeant Mark Battye dated 9 July 27 2015. Mr Agius has indicated he does have some questions 28 of Detective Sergeant Battye. That gentleman is not 29 available today but he will be called next week. 30 31 THE COMMISSIONER: Yes. 32 33 MR STOLJAR: And that questioning can take place. We will 34 make some inquiries of Mr Mason to see if he is available 35 to put on any short evidence, given a couple of the 36 objections that were taken today. 37 38 THE COMMISSIONER: Very well. 39 40 MR STOLJAR: Now, could I come to a different topic and 41 that is Gungahlin Concrete. The first witness is 42 Pietro Antonio Marcantonio. 43 44 <PIETRO ANTONIO MARCANTONIO, sworn: [2.14pm] 45 46 MR STOLJAR: Commissioner, I have just been handed a list 47 of objections to Mr Marcantonio's statement.


1 2 THE COMMISSIONER: Yes. I don't have such a list, but 3 I see Mr Agius is handing one up now. We might as well try 4 and deal with these now. 5 6 MR STOLJAR: Yes, Commissioner. 7 8 THE COMMISSIONER: I think, Mr Stoljar, paragraph 7, the 9 last 12 words or so, are objected to. 10 11 MR STOLJAR: My submission about that objection and, 12 indeed, I can perhaps make this in respect of many of the 13 objections is this, Commissioner. If this was a commercial 14 list proceeding in which solicitors had had a good deal of 15 time to prepare their evidence and it was being bound 16 strictly by the laws of evidence, then many of these 17 sentences would not be able to stand, but in this 18 Commission, which is not bound by the rules of evidence and 19 where you are endeavouring to elicit evidence in a sense as 20 quickly and efficiently as possible in order to formulate 21 your views, in my submission, those sort of rules don't 22 apply, technical rules of that kind. Some of these 23 objections degenerate, in my respectful submission, into 24 matters of such particularity they wouldn't even be allowed 25 in a commercial list proceeding. 26 27 For example, para 15, a complaint is made that the 28 Union is not identified. The witness has merely said "the 29 Union" and my friend is saying there is some difficulty 30 with identifying which union we are talking about. Well, 31 there's only one -- 32 33 MR AGIUS: It's not the union per se, we know it is the 34 CFMEU, it is the people within the Union. 35 36 MR STOLJAR: The objection is described as "the Union". 37 38 MR AGIUS: It is a shorthand way of being quick and 39 efficient. 40 41 MR STOLJAR: Other objections complain about Union 42 officials not being identified, so I think it was 43 a legitimate reading. The other point I would make is that 44 some of the objections, in my submission, travel with the 45 ruling in respect of paragraph 8 of the statement of 46 Mr Jones of 15 July 2015 which you just made, Commissioner, 47 where you, in effect, allowed a paragraph based on the

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1 witness's long experience in the industry, although it was 2 not in strictly permissible form in accordance with the 3 rules of evidence. That was paragraph 8 of Mr Jones' 4 evidence; paragraph 8 of this statement falls into that 5 category, in my respectful submission. 6 7 Coming back to paragraph 7, which was the question you 8 put to me, he is involved in these negotiations himself, 9 that is, this witness. He is explaining, in substance, why 10 he came to sign an EBA that he wasn't happy with, and that 11 final sentence at paragraph 7 elaborates why he took that 12 course of action. 13 14 THE COMMISSIONER: Do you maintain the objection to 15 para 7, Mr Agius? 16 17 MR AGIUS: Yes. Not only is it hearsay and there's no 18 basis for the opinion, but it's also ambiguous. It was 19 either a case of being in or out and there was no room for 20 negotiating. He appears there to be speaking about his own 21 state of mind, but it could also be taken to be evidence of 22 the fact that that was objectively the circumstance. So -- 23 24 THE COMMISSIONER: Is that assertion seriously in 25 controversy from your point of view? 26 27 MR AGIUS: I don't think it's a matter that will figure 28 largely in the findings in relation to this hearing. 29 30 THE COMMISSIONER: I think I will allow that one. 31 Paragraph 8, Mr Stoljar, that is a sort of general account 32 of the problems of someone like Mr Marcantonio dealing with 33 Union officials. 34 35 MR STOLJAR: Yes, based on his experience and, as I said, 36 in my submission, it would travel with your ruling in 37 respect to paragraph 8 of Mr Jones'. 38 39 THE COMMISSIONER: Mr Agius, anything you want to -- 40 41 MR AGIUS: Yes. 42 43 THE COMMISSIONER: Is there any point you want to make? 44 45 MR AGIUS: He hasn't named the builders, he hasn't named 46 which job sites. It is impossible for us to test that. It 47 is impossible for the Commission to know and what weight to


1 attach to that statement: 2 3 They would also tell builders we were doing 4 the wrong thing and should not be on the 5 job. 6 7 Well, which builders and the particular people aren't 8 identified, so we can't even go to our own people and get 9 evidence to deal with that allegation. 10 11 THE COMMISSIONER: I think I'll reject that, but give 12 Mr Stoljar leave to sharpen up the paragraph, if I can put 13 it that way. 14 15 Then we come to 15. There is an objection to 15 on 16 the ground of hearsay which I would reject because Rosa and 17 Mr Marcantonio are really partners, they are the brains, as 18 it were, of the business; it's not some unidentified 19 stranger 20 21 MR AGIUS: Yes, I understand. 22 23 THE COMMISSIONER: I will reject it just so that 24 Mr Stoljar can attempt to ascertain whether particular 25 persons involved with the CFMEU can be elicited and let us 26 see how that process plays out. 27 28 Is the last sentence of paragraph 17 seriously in 29 controversy? Justly or unjustly, that is an emotion people 30 have, or at least a lot of people say it. 31 32 MR AGIUS: We cannot possibly meet the last sentence in 33 the paragraph: 34 35 ... other builders and companies in the 36 construction industry are scared of the 37 Union. 38 39 It is a meaningless sentence, in any event, unless we knew 40 what it is that is being alleged that they're scared of 41 about the Union. Are they scared that they might be forced 42 to pay real wages or are they scared for some other reason 43 and if they're scared for some other reason, in a statement 44 of such generality, if that was just generally accepted, 45 there would be no need for this Royal Commission. It is 46 just a whole rolled-up statement which is not based upon 47 any evidence or experience and it is just not possible to


1 test it. 2 3 THE COMMISSIONER: I will reject that but grant leave for 4 the matter to be further examined. Where do we go next? 5 21. Mr Stoljar? 6 7 MR STOLJAR: Yes. I don't press 21. 8 9 THE COMMISSIONER: Yes, very well, 21 is not pressed and 10 therefore out. 24, Mr Agius? The fear, as it were, is 11 particularised. In other words, on a scale of 12 unsatisfactoriness, it's much higher up than paragraph 17, 13 or on the wrong scale of satisfactoriness, it is higher up 14 than 17. 15 16 MR AGIUS: But there is no evidence to support a belief or 17 an opinion that "the Union would try and stop work on GC 18 sites and bad-mouth GC to the builders". 19 20 THE COMMISSIONER: It is an explanation for why he signed, 21 a personal explanation. I think I will allow that. 22 23 MR AGIUS: If it please. 24 25 THE COMMISSIONER: 35, the first sentence, I think I will 26 reject that for now but grant leave for Mr Stoljar to see 27 who it was in CPS and perhaps any other particular details 28 that can be elicited. 43, the second sentence, that seems 29 to be relevant. I appreciate that's not the gravamen of 30 the objection that is made. What do you say, Mr Stoljar, 31 to paragraph 43, the second sentence? 32 33 MR STOLJAR: It is purely hearsay, Commissioner, but you 34 can receive it. My friend can make submissions about it 35 and he can cross-examine about it, but there is no reason 36 why you are bound by any rule of evidence to reject it on 37 that ground, on the hearsay ground. 38 39 THE COMMISSIONER: I think I will allow 43. I am not very 40 much enamoured of para 45, Mr Stoljar. Do you have 41 anything to say in its defence? 42 43 MR STOLJAR: No, Commissioner. 44 45 THE COMMISSIONER: 45 is rejected. 46. I think, in 46 conformity with other rulings, I should reject that, but 47 Mr Stoljar can seek to get more specificity in relation to


1 the words "the Union." 48 is a little opaque in meaning 2 but can I suggest, Mr Stoljar, that I reject that and you 3 can try to work out what the words "We do not give the 4 Union memberships" mean. 5 6 MR STOLJAR: Yes, Commissioner. 7 8 THE COMMISSIONER: 49. The objection is that the belief, 9 as it were, lacks evidentiary support. I think I will 10 probably have to reject that. I think 50 is in the same 11 category. It might have a useful underlying idea but it 12 needs to be more particularised in various ways. 13 14 53. I am inclined to allow para 53, Mr Agius, unless 15 you have some strong point you want to put? I think we are 16 basically talking about the last 12 words or so 17 18 MR AGIUS: Yes. Our submission really is there is no 19 basis for that opinion. There appears to be an assumption 20 that workers don't want extra superannuation, travel 21 allowance and ACIRT. It is a self-serving statement and 22 there's no evidence that that is the case, particularly 23 since superannuation, travel allowance and ACIRT, or some 24 kind of redundancy payout are mandated. 25 26 THE COMMISSIONER: Yes. 27 28 MR AGIUS: Not just in the EBA but under the Award. 29 30 THE COMMISSIONER: Yes. Despite Mr Agius's submission, 31 I will allow the last line or so of para 53. That brings 32 us to the first sentence of paragraph 54. Its meaning is 33 not entirely clear, so I think I will reject it, 34 Mr Stoljar, but you can try and clarify it perhaps in oral 35 testimony. We will proceed with the preliminaries to 36 Mr Marcantonio's testimony and then I will receive the 37 statement subject to those rulings. 38 39 <EXAMINATION BY MR STOLJAR: 40 41 MR STOLJAR: Q. Can you tell the Commission your full 42 name? 43 A. My name is Pietro Antonio Marcantonio. 44 45 Q. And you are a director of Gungahlin Concrete Services 46 Pty Ltd? 47 A. Yes, I am.

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1 2 Q. You have prepared a witness statement in these 3 proceedings which there has just been some discussion 4 about. Do you have a copy of that with you? 5 A. No. 6 7 MR STOLJAR: I will provide you with one. 8 9 THE COMMISSIONER: That discussion, Mr Marcantonio, was 10 nothing that need trouble you. It is just a question of 11 the technical rules of evidence. It is a legal matter. 12 13 THE WITNESS: Yeah, yeah, no worries. 14 15 MR STOLJAR: Q. Is the content of your statement true 16 and correct? 17 A. Yes, it is. 18 19 MR STOLJAR: I would ask that it be received into 20 evidence, Commissioner. 21 22 THE COMMISSIONER: Yes, Mr Marcantonio's statement is 23 received into evidence subject to the rulings that I made 24 in the course of debate with counsel a little while ago. 25 26 STATEMENT OF PIETRO ANTONIO MARCANTONIO 27 28 MR STOLJAR: Q. Mr Marcantonio, how long have you been 29 in the construction industry? 30 A. Since roughly 2008. 31 32 Q. Is that when you set up Gungahlin? 33 A. No. I set up Gungahlin in 2001 and worked as a sole 34 trader and then 2008 we started, you know, employing, 35 getting bigger. 36 37 Q. I see. 38 A. And doing commercial work. 39 40 Q. You were doing concrete work before then? 41 A. Correct. 42 43 Q. From about 2001, were you? 44 A. Correct. 45 46 Q. The business has gradually expanded, has it? 47 A. That's right.


1 2 Q. With bigger and bigger jobs? 3 A. Yes. 4 5 Q. Do you still do a mix of residential and commercial? 6 A. Yeah, we do, yeah, residential and commercial concrete 7 in Canberra. 8 9 Q. You say in paragraph 7: 10 11 As soon as GC became more commercial we 12 started receiving pressure from the Union 13 to sign an EBA. 14 15 What did you mean by that, what happened? 16 A. Yeah, I'd got a couple of visits from the CFMEU 17 regarding that we needed to sign an EBA. 18 19 Q. Did someone say that to you? 20 A. Yes. 21 22 Q. Do you know -- 23 A. I can't recall because it was a long time ago, but, 24 yeah, the understanding was there's other commercial 25 concreters with EBAs. You needed to be - you needed to do 26 the same thing; that was my understanding. 27 28 Q. Was that understanding based on what was said to 29 you -- 30 A. Correct. 31 32 Q. -- at these visits? When you say they came, did they 33 come to the sites, did they? 34 A. Yeah, they come on site and then - because I didn't 35 really have nothing to do with the CFMEU before that, so 36 I actually got to know them and, you know, and then 37 I - yeah, I ended up signing an EBA. 38 39 Q. Did you get notice in advance that they were going to 40 come to the site or they just would come? 41 A. No. 42 43 Q. Did they ever stop a pour? 44 A. They did. I can't recall when, but there was a few 45 times they did actually stop us pouring, yes. 46 47 Q. That was just a few times over the years?


1 A. Yeah. 2 3 Q. Did they offer an explanation as to why they were 4 stopping the pour? 5 A. Like I said, I can't remember due to the fact that it 6 was a while ago, but the first few times they did stop 7 a job is because I didn't have an EBA. 8 9 Q. They said that to you? 10 A. Yes. 11 12 Q. Do you remember who you were dealing with on those 13 occasions? 14 A. I'm pretty sure it was Jason O'Mara and Brett Harrison 15 at the time. 16 17 Q. In 11 you say that those two gentlemen would ring you, 18 you say, "all the time harassing me for memberships". Can 19 you just explain what that really meant and read paragraphs 20 10 and 11, just to put that into context for you. 21 A. Yes, I'd get a call and they'd ask why I hadn't 22 supplied them with more members, or any members, you know, 23 so -- 24 25 Q. But did you have an EBA at this stage? I'm sorry, 26 after GC signed the 2013 EBA? 27 A. Yeah, after the EBA, yeah. 28 29 Q. So the calls about memberships started after the EBA? 30 A. Correct. 31 32 Q. How many employees did you have at that time? 33 A. At the time, I think I probably had 10 - yes, between 34 seven and 10. 35 36 Q. You ended up signing up, or your family signed up, did 37 they, you say in 14? 38 A. Yes. 39 40 Q. In 15, there is some evidence that you have said about 41 something Rosa said. Just looking at the words "the Union 42 called the office", do you see that? 43 A. Yes. 44 45 Q. Do you know who it was that called the office? 46 A. I'm not sure. 47


1 Q. You can't remember? 2 A. No, I can't, no. 3 4 Q. Was it someone that you dealt with regularly -- 5 A. Yeah, I -- 6 7 Q. -- or do you not know? 8 A. No, I don't recall, no. 9 10 Q. Rosa had the call, did she? 11 A. That's correct. 12 13 Q. In paragraph 18, you start to deal with some meetings 14 with the major commercial concreters in Canberra, and you 15 say in 19: 16 17 I attended two of the meetings, the first 18 and the last. 19 20 And you name who the other concreters in attendance were. 21 Whose idea was it to have these meetings? 22 A. The CFMEU. The CFMEU would organise it. 23 24 Q. Do you know who it was at the CFMEU who was the main 25 person? 26 A. I think it was - yeah, I think it was Jason O'Mara 27 'cause that's who we dealt with, or that's who I dealt 28 with, anyway. 29 30 Q. Do you get letters from time to time inviting you to 31 meetings? 32 A. We did receive some emails. I'm not very good with a 33 computer, so, yes, anything that - like, emails and that, 34 I'd - you know, I'd get a note off - out of my office and, 35 you know, I'd know where to go and where to turn up, so -- 36 37 Q. Did you have a draft EBA when you went? 38 A. I can't recall. 39 40 Q. You can't recall? When you say you attended the first 41 meeting and the last, was the last the one where it was 42 actually - the EBA was signed? 43 A. From what I can recall, yes. 44 45 Q. And the first one was in, what, about November or 46 thereabouts 2013? 47 A. Yes, around that time, yeah.


1 2 Q. Who was at the first meeting? Well, let's start with 3 the Union, who was there from the Union, can you remember? 4 A. I know Jason was there. I know Johnny Lomax was 5 there. There was a couple others, but I can't remember. 6 7 Q. Where was it? 8 A. At the CFM - in Dickson there. Their office there. 9 10 Q. The CFMEU's office? 11 A. Yes. 12 13 Q. In paragraph 19 you have listed a number of different 14 concreting companies. They were all there at that first 15 meeting that you went to? 16 A. Yes. I'm pretty sure, yeah, they were. 17 18 Q. Did people take notes at the meeting, can you 19 remember? 20 A. I didn't - I didn't really take any notice. 21 22 Q. Did you say you didn't take any notice? 23 A. I didn't take any notice, 24 25 Q. You, yourself, didn't take notes? 26 A. Not really. 27 28 Q. Was Rosa there by the way? 29 A. No. 30 31 Q. Was anyone else from Gungahlin there? 32 A. Oh, Richard. Richard Lewis was with me the first 33 round. 34 35 Q. Do you remember anything that the CFMEU said at this 36 meeting? 37 A. No, I can't recall. 38 39 Q. Was there any discussion about rates? 40 A. Not that I can recall, no. 41 42 Q. Mr O'Mara has put on a statement and he says in his 43 statement - I am just going to read out a sentence from it 44 and just ask you to comment. He says: 45 46 I recall Pietro complaining about the rates 47 he was receiving from builders.


1 2 Did you -- 3 A. I don't recall that. 4 5 Q. But it is possible, is it? 6 A. It could have been. 7 8 Q. You were certainly talking about the EBA, I take it? 9 A. What rates - I don't understand what rates he's 10 talking about. Is he talking about rates for workers? Is 11 he talking about rates for labour? 12 13 Q. Well, he says: 14 15 Pietro complaining about the rates he was 16 receiving from builders. 17 18 So there he is talking about the rates that you were 19 charging builders. 20 A. I don't recall. 21 22 Q. But you talked, I take it, about the terms in the EBA? 23 A. Oh - yes, I might have said, yeah, one or two things. 24 I can't recall. 25 26 Q. But as a group, at the meeting, there was discussion 27 about the terms? 28 A. Oh, everyone would have had a say, yeah. 29 30 Q. About the EBA? 31 A. Yes. 32 33 Q. Part of that, I take it, would have been what rates 34 workers were going to be paid under the EBA? 35 A. Well, because we previously had an EBA, we pretty much 36 knew what was - you know, what the rate was going to be, 37 so - there was only some minor changes, but I didn't really 38 take any notice. 39 40 Q. Did you talk about what had to be paid to ACIRT? 41 A. I can't remember. 42 43 Q. How do you feel about the obligations to pay ACIRT in 44 the EBA, do you think they're -- 45 A. Oh, I think, yeah, they're a bit high. 46 47 Q. You think they're too high?


1 A. I do, yes. 2 3 Q. Did you make that point at the meeting? 4 A. Oh, well, like I said, I'd just turn up to the meeting 5 just to show my face. Yeah, I try and stay away from there 6 as much as I can. 7 8 Q. Well, were you happy to sign the EBA? 9 A. No. 10 11 Q. So why did you sign it? 12 A. 'Cause I thought it was the right thing to do. 13 14 Q. But why do you say that? Was there some benefit to 15 your company in signing it? 16 A. Well, when you've got five or six other concreters in 17 there that are all going to sign it, well, everyone follows 18 the leader, don't they? 19 20 Q. Well, you tell me. Why did you sign it if you weren't 21 happy? 22 A. I believed I didn't have a choice, so I just signed 23 it. 24 25 Q. Well, did you need an EBA to carry on business? 26 A. No, I didn't need an EBA from the CFMEU. I could have 27 got an EBA from wherever I wanted. 28 29 Q. So why did you sign it if you weren't happy with it? 30 A. Because I know the pressure they can put on my 31 company, and myself. 32 33 Q. What sort of pressure? 34 A. Like we said, turning up on jobs, bad-mouthing my 35 company. There's lots of things. 36 37 Q. You have listed the different companies in attendance, 38 I am just focusing on the first meeting at the moment in 39 paragraph 19 and obviously Gungahlin was also in 40 attendance. Had some been trading in Canberra longer than 41 others? 42 A. Yes. There has been, yeah. 43 44 Q. So were there sort of the new ones who were coming 45 through and the old established ones? 46 A. Well, yes. That's - that's what I believe. You know, 47 there was two major companies in Canberra that had the


1 market the whole - you know, in the years - you know, like, 2 the years before. So the newcomers, there was no choice, 3 they had EBAs, so we were pressured to sign. Because they 4 had an EBA, we had an EBA. 5 6 Q. Who were the two well-established ones? 7 A. (a) and (b). 8 9 Q. Belconnen Concreting and CPS Concreting? 10 A. Yes. 11 12 Q. Was there some concern expressed about people 13 undercutting other people, did that come up? 14 A. I can't recall, 15 16 Q. To your understanding was that a concern that people 17 had, just from your background to the negotiations, 18 A. Well, that's business. 19 20 MR AGIUS: I object to that. 21 22 THE WITNESS: It's business. 23 24 MR AGIUS: If that is the only answer, I won't press the 25 objection. 26 27 MR STOLJAR: Q. You say, "It's business", what do you 28 mean by that? 29 30 MR AGIUS: I object to that then. We can take it further. 31 32 Q. To your understanding was that 33 a concern that people had, just from your 34 background to the negotiations? 35 36 In my respectful submission, before that can be answered, 37 we would need to know the basis upon which the witness 38 could answer it. We don't know what his understanding was. 39 He says he can't remember what the conversation was during 40 the course of this first meeting. So, in our respectful 41 submission, he is just not in a position to answer that 42 question and any answer he gives wouldn't have any weight. 43 The previous question: 44 45 Q. Was there some concern expressed about 46 people undercutting other people, did that 47 come up?


1 2 A. I can't recall. 3 4 Q. To your understanding, was that 5 a concern people had? 6 7 Well, if he can't recall whether it came up, and he can't 8 recall any conversation about it, how can he give any 9 evidence about his understanding of a concern that people 10 had? 11 12 THE COMMISSIONER: Yes. I follow all your reasonably 13 powerful points but, of course, just because someone 14 doesn't remember the answer to a question once, doesn't 15 necessarily mean they will always remain in that condition. 16 I think the theme has to be pursued by reference to 17 recollections of what happened rather than surmises. 18 19 MR STOLJAR: Yes. 20 21 Q. Do you recall anyone using the expression "level 22 playing field" at the meeting? 23 A. Yes. 24 25 Q. Who used that expression? 26 A. It's been used quite a lot. 27 28 Q. In what context? Tell me what was said? 29 A. My understanding of "level playing field" is that 30 we're all on the same EBA. Everybody paid the same; you 31 know, all the benefits were the same. So, you know, 32 I wouldn't get three of my workers go work for Joe Blow 33 because, you know, he was paying $5 more or he was paying 34 $3 less. That's my understanding of that "level playing 35 field", everyone paid the same, they all had the same 36 benefits and that's - that was the whole reason to sign an 37 EBA. 38 39 Q. And everyone charged the same as well? 40 A. I don't - yes, I didn't - I don't - I don't recall 41 that, no. 42 43 Q. Well, wasn't that something that was being discussed 44 at the meeting, that people wanted to make sure that no-one 45 was undercutting? 46 A. I don't recall any of that. 47


1 Q. And wanted to make sure that everyone was charging the 2 same? 3 A. Yeah, I don't recall that. 4 5 Q. You don't recall? You charge, I take it, different 6 rates for residential and commercial? 7 A. Correct. 8 9 Q. For commercial work, I take it you charge more than 10 residential? 11 A. That's right. 12 13 Q. I take it it would depend on what services were 14 actually being provided, so the rates would vary according 15 to whether it was a column, a slab, or a wall? 16 A. Correct. 17 18 Q. Take, first, a slab, is this fair to say that you 19 wouldn't charge less than $16.5 per cubic metre for the 20 pour? 21 A. That sounds about right. 22 23 Q. Is this also correct, that you wouldn't charge for the 24 finishing less than $6.5 per metre square? 25 A. Yes, it sounds about right. 26 27 Q. Do other people, as far as you know, charge the same 28 rates for the slab and the pour? 29 A. I couldn't tell you. 30 31 Q. What about for the finishing?and 32 A. Like I said the rates - yeah, I don't - what I charge 33 to my customers, and what everyone else charges to their 34 customers, is nobody's business. 35 36 Q. Well, that's true. But it is affected by how much you 37 have to pay the workers in wages and entitlements, isn't 38 it? 39 A. Correct. 40 41 Q. Because you have to charge at least enough to cover 42 what you have to pay your workers by way of paying 43 entitlements, otherwise you go broke? 44 A. That's right. 45 46 Q. Isn't that something that came up at this first 47 meeting?


1 2 MR AGIUS: Well, I object to that. What came up? There 3 is about four or five topics being discussed there. 4 5 THE COMMISSIONER: I think it is clear enough it is the 6 $16.50 and the $6.50. Perhaps you can make it clearer, 7 Mr Stoljar. 8 9 MR STOLJAR: Yes. 10 11 Q. Perhaps I will put it this way: the rates came up. 12 The question of how much you would charge builders for 13 concrete services in the commercial context came up at the 14 meeting, didn't it? 15 A. Yes, there was something mentioned. 16 17 Q. Did it get down to discussion about dollar figures,eg, 18 $16.5 per cubic metre? 19 A. I remember those figures but, yeah, I couldn't tell 20 you who actually put it out there. 21 22 Q. At the meeting? 23 A. No. 24 25 Q. But somebody did? 26 A. Yes. It was spoken about. 27 28 Q. It was spoken about, wasn't it, because you have to 29 charge a certain minimum rate in order to meet these 30 expenses that you were going to face under the new EBA? 31 A. Correct. 32 33 Q. And isn't this the position, that the rates had gone 34 up - sorry, I am asking that badly. In 2011, that is your 35 first EBA? 36 A. EBA, yeah. 37 38 Q. By the way, was that your first EBA, 2011? 39 A. Yes. 40 41 Q. So before that, you had just been doing residential 42 stuff? 43 A. Correct. 44 45 Q. So in 2011 you signed your first EBA and that, 46 presumably, allowed for increases in wages, and the like, 47 for workers?


1 A. Yes. 2 3 Q. The 2013 EBA continued that process? 4 A. Yes. 5 6 Q. There was a concern that the increases were too much, 7 wasn't there? 8 A. Oh, there was, yeah. 9 10 Q. That was something that was discussed at that first 11 meeting, I take it? 12 A. Yes, there was. 13 14 Q. But you ended up signing the EBA in the terms the 15 Union suggested? 16 A. Yeah, well - yeah, I just signed it. 17 18 Q. So you ended up signing it, by the way, at the second 19 meeting. Who was present at the second meeting? You deal 20 with this at paragraph 25, by the way. 21 22 MR AGIUS: That has not been the witness's evidence, 23 Commissioner. He said he went to the first and the last 24 meeting. 25 26 MR STOLJAR: Yes, and I thought he said that the last 27 meeting was when he signed it. I thought that is what he 28 said. 29 30 THE COMMISSIONER: Para 20 says: 31 32 At the last meeting held by the union, the 33 concreters were asked to sign the 2013 EBA. 34 35 MR AGIUS: If the second meeting means the last meeting he 36 went to, then we have no objection. But we know that there 37 was more than one meeting. 38 39 MR STOLJAR: The witness went to two meetings. As 40 I understood his evidence. The first one and the second 41 one. 42 43 Q. The second one, as I understood it, at least, was the 44 meeting on 4 February 2014 where you actually signed the 45 EBA? 46 A. Yes, I'm pretty sure that's - yes, that's when we 47 signed it, yeah.


1 2 Q. Anyway, regardless of the specific day it was, when 3 you went along to sign the EBA, were there other people 4 there? 5 A. I think there was. I can't recall. 6 7 Q. You can't recall? 8 A. No. 9 10 Q. In paragraph 19, you say: 11 12 I attended two of these meetings, the first 13 meeting and the last meeting. 14 15 To your knowledge, there were a series of meetings between 16 those two? 17 A. I think there was another two that I missed out on in 18 between. 19 20 Q. Okay. The last meeting was the meeting on 4 February 21 when you actually signed it, wasn't it? 22 A. I'm pretty sure it was, yes. 23 24 Q. And was everyone, the people in 19, were they there on 25 that occasion as well, or do you not know? 26 A. I don't remember, no. 27 28 Q. Was that fairly quick that second one, was it just 29 a question of signing up or -- 30 A. I think it was, yeah. There wasn't much said, no, 31 from what I can recall. 32 33 Q. Just looking at the first sentence in paragraph 35, 34 you say "Rosa informed me that CPS", that is one of the 35 other concreters, is it, one of the long-established ones? 36 A. Yes. 37 38 Q. Do you know who she spoke to at CPS? 39 A. No. 40 41 Q. Did you have someone you dealt with regularly at CPS? 42 A. Yes, I deal with one of the owners there. 43 44 Q. Who is that? 45 A. Tony from CPS. 46 47 Q. Was he the person who would have spoken to Rosa, do


1 you think? 2 A. No. 3 4 Q. Someone else? 5 A. Yes, it would have been the office staff. I can't 6 remember her name. 7 8 Q. Do you know who, and I suspect you don't from your 9 previous answers, the person at the Union was who had 10 spoken to CPS? 11 A. No, I'm not sure. 12 13 Q. In 46, you recount a conversation you had with 14 Mr Thornton. 15 A. Yes. 16 17 Q. What sort of trade is Amisco in? What is Amisco? 18 A. Amisco, they are a building company. 19 20 Q. The project manager is Rodney Thornton and you asked 21 if the Union had been around. Did you ask who he had 22 spoken to at the Union? 23 A. Exactly how it's written there, that's what I said. 24 I just asked him the question -- 25 26 Q. Okay. 27 A. -- and that was his answer. 28 29 Q. In 48, you are talking there about not giving the 30 Union memberships. Referring to the passage where you talk 31 about: 32 33 We did not give the Union memberships. 34 35 Are you talking about the process you describe in 36 paragraph 14 and then you follow it up in paragraph 16? 37 A. Yes. What -- 38 39 Q. I mean, I suppose it really starts at 11, just to put 40 it in context, but you are describing there people ringing 41 and asking for members and then at 14 you said, look, you 42 didn't want to sign the boys up and deduct their pay, and 43 you say: 44 45 Instead, my family signed up as members. 46 47 But then in --


1 A. Well, we've been - there was five of us which signed 2 up, you know, I think from 2011 or - I was a pre-member. 3 I was a member, I think, from 2001. 4 5 Q. Right. 6 A. So, yeah, I just signed a couple of extra boys, yeah, 7 just to keep the Union happy, or the CFMEU happy. 8 9 Q. But is this the case that you haven't signed up all 10 your employees? 11 A. I believe that, yeah, because I hadn't given them 12 a full - you know, the 10 or 12 boys that we've got, 13 memberships, yeah, I hadn't signed them up, yeah. 14 15 Q. What did you believe? 16 A. Yeah, that's why, you know, they weren't - you know, 17 they weren't very happy with us. 18 19 Q. The expression "preferred contractor", what do you 20 mean by that? In paragraph 48 you use it. 21 A. If I had all my guys signed up as members, I'd 22 probably be a preferred contractor too. 23 24 Q. "Preferred contractor", is that some expression that 25 is used frequently in this context? 26 A. That's my terminology of it, do you know what I mean. 27 28 Q. So what do you mean by it? 29 A. A preferred contractor. 30 31 Q. Meaning one that gets nominated by the Union? 32 A. Yeah. 33 34 MR STOLJAR: Commissioner, I would ask that 48 be admitted 35 given that context that has now been given. 36 37 THE COMMISSIONER: Yes, I will admit 48. Just reading 38 through 46 again, I am inclined to think I may have been 39 harsh in the ruling. Do you maintain your objection to 46, 40 Mr Agius? 41 42 MR AGIUS: Yes. Rodney Thornton is not on the list to be 43 called. We can't identify who the Union person was that 44 has allegedly said that to Rodney Thornton. It is merely 45 double hearsay and we can't defend that. We don't know 46 whether Rodney Thornton is telling the truth. He might 47 have had a reason to say that he had been told to use other


1 concreters as an excuse for not using this one, without 2 revealing the real reason. 3 4 THE COMMISSIONER: Yes, all right. Those who live by the 5 sword, die by the sword, Mr Agius. I will reject 6 paragraph 46, and I will remember that reasoning for future 7 use. 8 9 When we say the rules of evidence don't apply, of 10 course some elements of the rules of evidence are 11 fundamentally important and we do apply them, but the rules 12 of evidence now are very wide statutory ones. We just need 13 to bear that in mind. I had answered your question, 14 Mr Stoljar. 15 16 MR STOLJAR: Yes. 17 18 THE COMMISSIONER: And I think we got to the end of 48. 19 20 MR STOLJAR: Yes. 21 22 MR STOLJAR: I have nothing further. Thank you, 23 Commissioner. 24 25 THE COMMISSIONER: Mr Agius. 26 27 MR AGIUS: Thank you. 28 29 <EXAMINATION BY MR AGIUS: 30 31 MR AGIUS: Q. Mr Marcantonio, just on that last point 32 about Union memberships, how many employees did you have at 33 about the time you signed the last EBA? 34 A. The 2013 EBA you are talking about? 35 36 Q. Yes. 37 A. There would have been about 12, 13 guys. 38 39 Q. Are they actual employees or were some of them -- 40 A. No, they are all employees. 41 42 Q. Not contractors? 43 A. No, no contractors, no. 44 45 Q. Did you have a meeting with them and ask them if they 46 wanted to join the Union? 47 A. The CFMEU has come - I have organised meetings for the

.16/07/2015 CFMEU ACT 330 P A MARCANTONIO (Mr Agius) Transcript produced by DTI

1 CFMEU to come to my yard several times to talk to my 2 employees, and I give the CFMEU the opportunity to sign 3 whoever they want up. 4 5 Q. And -- 6 A. And that's happened - that's probably happened three 7 or four times in the last three or four years. 8 9 Q. And they sign people up from time to time? 10 A. At the end of the day, if my employees choose to sign 11 and become members, I have - I don't say - I've got nothing 12 to say. I can't say anything. 13 14 Q. Well, you are a member yourself, you've been -- 15 A. I was - I was a member. 16 17 Q. You are not anymore? 18 A. No. 19 20 Q. But you were a member for very many years? 21 A. Yeah, I was a member for a long time, yes. 22 23 Q. Were you a member when you were employed? 24 A. Yes, I was. 25 26 Q. You saw the benefits of being a member of the Union? 27 A. I've never had any benefits from the Union. 28 29 Q. You weren't paid over Award rates? You didn't have 30 your redundancy protected? 31 A. I was never made redundant. 32 33 Q. No, but you didn't have your rights under redundancy 34 protected by ACIRT? 35 A. I was only an employee under wages for a couple of 36 years and then I started for myself, so. I've been a Union 37 member for, I think, eight or 10 years or whatever it is. 38 The Union has never done, or the CFMEU never done anything 39 for me. 40 41 Q. They have done a lot for your employees, haven't they? 42 A. What am I? 43 44 Q. You're a boss. 45 A. I'm still a Union member. 46 47 Q. Well, I thought you said you're not a Union member?


1 A. But I was up until the beginning of the year. 2 3 MR STOLJAR: You are eliciting unhelpful information. 4 5 THE WITNESS: Do you know what I mean? I was a Union 6 member. I've been a Union - even though I'm a director of 7 a company, I'm still a Union member. 8 9 MR AGIUS: Q. I put to you that in relation to Union 10 membership, that you were contacted by Jason O'Mara from 11 time to time in 2011, and he did ask you to tee-up 12 a meeting with the blokes to discuss joining the Union with 13 them? 14 A. Yes, that's correct. 15 16 Q. You didn't complain to him about that? 17 A. No. 18 19 Q. You recall, do you, that you went to a meeting - that 20 he came to a meeting at your offices once and that you were 21 present, and there were about 10 or 12 workers present? 22 A. That's correct. 23 24 Q. It was a friendly meeting? 25 A. Yes, that's correct. 26 27 Q. He explained the agreement; that is, the EBA agreement 28 to the workers and its benefits? 29 A. That's right. 30 31 Q. He had no reason to expect that he didn't have a good 32 relationship with you at the time, did he? 33 A. I don't think - we still do. 34 35 Q. I'm sorry, you think you still have a good 36 relationship? 37 A. Well, I haven't done anything wrong. 38 39 Q. No, but do you think you still have a good 40 relationship? 41 A. I don't know. I haven't spoken to him. 42 43 Q. But at the time you thought you had a good 44 relationship, on the occasions when he was visiting your 45 company's office, and speaking to your employees? 46 A. Yes, I thought we did. A professional relationship, 47 you know, like --


1 2 Q. You never complained to him? 3 A. Not that I can recall, no. Not regarding memberships, 4 anyway. 5 6 Q. In fact, he never had a discussion with you about 7 signing members up and deducting dues from their pay? 8 A. It mightn't have been him, but it would have been 9 someone else from the CFMEU. 10 11 MR AGIUS: Sorry, I have to go from statement to statement 12 because there is a series of propositions I need to put and 13 they come from different sources. 14 15 THE COMMISSIONER: No, no, I understand. 16 17 MR AGIUS: Q. If you could go to paragraph 18 of your 18 statement just so that you can follow what I am putting to 19 you, would you agree that at none of the meetings you went 20 to for the 2013 EBA, did you ever say to any of the CFMEU 21 persons there that you did not want to sign the EBA? 22 A. I can't recall. 23 24 Q. You agreed to be part of the audit process? 25 A. Yes. 26 27 Q. That all of the signatories to the EBA agreed with? 28 A. Yes. It was agreed, yes. Yeah, I can't say that 29 I agreed with it, but we agreed, yes. 30 31 Q. When you say you can't say you agreed with it, you 32 don't mean that you didn't consent to it? 33 A. Yes, but I - yes, I agreed to it. 34 35 Q. You knew that that agreement was spelt out in writing 36 and that once you agreed to it, you would have to abide by 37 it? 38 A. That's correct. 39 40 Q. Indeed, you understood, didn't you, that all of the 41 contractors there agreed to it? 42 A. Correct. 43 44 Q. So they all knew that their records would be audited 45 to ensure that they were complying with the EBA? 46 A. That's correct. 47


1 Q. In relation to that EBA, you don't deny that there 2 were some negotiations of some of the terms in the EBA, do 3 you? 4 A. Yeah, I know there was, but I can't recall what 5 negotiation went on, no. 6 7 Q. But you understand - and at least you can recall this 8 much - that there were some changes requested? 9 A. Yeah, I think there was, yes. 10 11 Q. This was done in exchanges of emails? 12 A. I can't tell you because I don't follow email very 13 well. 14 15 Q. And that some changes were accepted and made? 16 A. I believe so. 17 18 Q. Did you seek any changes to the terms of the EBA that 19 the Union was seeking to progress? 20 A. No, I don't - I don't think I mentioned anything. 21 22 Q. But you were there when others did? 23 A. Correct. 24 25 Q. You know that on occasion the Union said they'd go 26 away and think about it, or words to that effect? 27 A. That who would think about it? 28 29 Q. The Union. 30 A. Regarding? 31 32 Q. The changes that were suggested. 33 A. Oh, I agree. Yeah, I think so. 34 35 Q. You knew that if you had wanted to, you could have 36 suggested changes yourself? 37 A. Yes. 38 39 Q. You would expect it quite natural, wouldn't you, in 40 those circumstances for the contractors to be working out 41 how much this EBA was going to cost them? 42 A. Correct. 43 44 Q. Because it would be something that they would have to 45 factor in their individual quotes or tenders for various 46 work? 47 A. Correct.


1 2 Q. You would regard that as sensible business thinking, 3 would you not? 4 A. Yes, correct. 5 6 Q. In terms of your own charge-out rate for pouring slabs 7 and finishing slabs, you would want to know what your own 8 charge-out rates were going to be in order to see what you 9 would have to charge out if you wanted to cover your 10 commitments under the EBA? 11 A. Correct. 12 13 Q. That would depend upon how many people you had on 14 a job? 15 A. That's right. I don't need someone to dictate to me, 16 to tell me what I need to charge. 17 18 Q. And you could work out -- 19 A. I'm in business to dictate how the job goes and where 20 I'm going to make the money. 21 22 Q. And you didn't need the Union to tell you anything 23 about what you should be charging -- 24 A. That's correct. 25 26 Q. -- did you? 27 A. That's correct. 28 29 Q. And you never sought their advice? 30 A. No. 31 32 Q. And you weren't given any advice by them? 33 A. No. 34 35 Q. When you say "no" -- 36 A. Well, if -- 37 38 Q. -- do you agree with me that you were not given any 39 advice by the Union as to what you should charge your 40 customers? 41 A. I don't need advice from the CFMEU to run my own 42 business, or else I wouldn't be in business. That is 43 why I am in business. 44 45 Q. I think we are on the same side here, but I just want 46 to know whether you agree with me. You agree with me you 47 didn't need any advice from the CFMEU; you have agreed with


1 that? 2 A. Yes, that's correct. 3 4 Q. The next proposition I am putting to you is you didn't 5 get any advice from the CFMEU either, did you -- 6 A. No. 7 8 Q. -- about what you should charge out at? 9 A. Like I said I don't need - I don't need anybody to 10 tell me what I have to charge out. What I do in my 11 business, is my business. I don't need someone to tell me 12 what to charge and who to charge it to, or else I wouldn't 13 be in business. 14 15 Q. At paragraph 28 of your statement, you say this: 16 17 I recall that after the meeting about the 18 2013 EBA in February 2014, I spoke with 19 Jason O'Mara. I told him that since GC did 20 only about 40 per cent commercial work (the 21 rest being residential) GC would only 22 provide paperwork for our six commercial 23 work employees. Jason agreed to this. 24 25 A. That's correct. 26 27 Q. So you always understood that your commercial 28 employees, that is your employees who worked on the 29 commercial sites, would be the subject of the audit? 30 A. Of the audit, that's correct. 31 32 Q. I suggest to you that there was a dispute between you 33 and the Union after that agreement as to whether or not 34 your company had provided the relevant records in relation 35 to your commercial employees? 36 A. That's correct. That was a conversation I had with 37 Jason but, yes, apart from the audit, I had nothing to do 38 with that. 39 40 Q. That was dealt with by your wife, was it? 41 A. Correct. 42 43 Q. Perhaps I will leave that for her. Can I ask you in 44 relation to your statement, how did it come about that you 45 made this statement to the Royal Commission on 2 July 2015? 46 A. I was asked to. 47


1 Q. By the Royal Commission? 2 A. Correct. 3 4 Q. Prior to that, had you spoken to anybody at the MBA? 5 A. Yes, I had. 6 7 Q. Had you spoken to people at the MBA about whether or 8 not you and the other concreters had agreed on charge-out 9 rates? 10 A. No. 11 12 Q. That had never been a topic of conversation between 13 you and the MBA? 14 A. Not that I recall, no. 15 16 Q. Had anybody ever spoken to you about that? 17 A. About? 18 19 Q. That topic. About charge-out rates and whether there 20 had been an agreement between -- 21 A. No. 22 23 Q. -- the contractors who attended any of the meetings 24 and who signed the EBA? 25 A. There was one contractor that briefly we had a quick 26 chat about it, but there was nothing else said. It was 27 just - we'd had a chat, and that was it. 28 29 Q. What was the chat? 30 A. Discussing rates. And those figures come out of his 31 mouth and that was it, and, no, I never heard anything else 32 about it. 33 34 Q. But that was -- 35 A. Like I said, when it comes to rates, what I charge is 36 nobody's business. 37 38 Q. That was a contractor who spoke about rates? 39 A. Correct. 40 41 Q. What, he worked out for himself that in order to cover 42 the EBA, he would have to have certain charge-out rates? 43 A. I don't recall. I just remember having the 44 conversation with him. That's all I remember. 45 46 Q. What do you recall? 47 A. We spoke about the rates. Exactly what I just said.


1 He told me what he thought we should be charging. I took 2 it on - yeah, I agreed with him and walked off. 3 4 Q. Was anybody else in that conversation? 5 A. No. 6 7 Q. So just this other contractor and you? 8 A. That's right. 9 10 Q. Who was -- 11 A. That's the only discussion - the only thing that I can 12 recall regarding rates was from that contractor. I don't 13 recall it from anywhere else. 14 15 Q. Who was this person? 16 A. It was Clive from Multi-Crete. 17 18 Q. Did you tell the MBA about that? 19 A. I can't recall. 20 21 Q. Did you tell the Royal Commission about that? It's 22 not in your statement. 23 A. I think so. I can't remember. 24 25 Q. If it is not in your statement, does that mean you 26 didn't tell the Royal Commission? 27 A. I mustn't have, no. Yeah, I can't remember. 28 29 Q. You don't remember whether you did or you didn't? 30 A. No. 31 32 MR AGIUS: Yes, thank you. 33 34 THE COMMISSIONER: Yes, Mr Stoljar? 35 36 MR STOLJAR: Nothing further. Thank you, Commissioner. 37 38 THE COMMISSIONER: It is satisfactory for Mr Marcantonio 39 to be excused, Mr Agius? 40 41 MR AGIUS: Yes. 42 43 THE COMMISSIONER: Mr Marcantonio, thank you for coming in 44 to give this evidence and doing the work you have done to 45 prepare it. You are excused from further attendance on the 46 summons that brought you. Thank you. 47 <THE WITNESS WITHDREW


1 2 MR STOLJAR: Commissioner, the next witness is Mrs Maria 3 Rosa Marcantonio. 4 5 <MARIA ROSA MARCANTONIO, sworn: [3.16pm] 6 7 <EXAMINATION BY MR STOLJAR: 8 9 MR STOLJAR: Q. Your name is Maria Rosa Marcantonio? 10 A. Yes, that's correct. 11 12 Q. You are a resident of the ACT? 13 A. Yes. 14 15 Q. And you are the manager of Gungahlin Concrete Services 16 Pty Ltd? 17 A. Yes. 18 19 Q. You have prepared a witness statement in these 20 proceedings. It is not dated but, in any event, you 21 prepared a witness statement in these proceedings? 22 A. Yes. 23 24 Q. Do you have a copy of that with you? 25 A. No. 26 27 Q. We will provide you with a copy. 28 29 MR AGIUS: Is this a convenient time to deal with our 30 objections? 31 32 THE COMMISSIONER: I think so, probably. 33 34 MR AGIUS: Might I hand up a schedule. 35 36 THE COMMISSIONER: Mrs Marcantonio, we are about to have a 37 little debate. It does not reflect on you in any way. It 38 is just that certain technical legal questions are going to 39 be discussed. 40 41 I think we will work through them, Mr Stoljar. 42 43 In paragraph 5, I think the objection is to the words: 44 45 We started being hounded by the Union who 46 said we needed a Union EBA ... 47 Et cetera.

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1 2 MR STOLJAR: Yes. I think that is covered by 3 Mr Marcantonio's statement. I don't press that any 4 further, Commissioner. 5 6 THE COMMISSIONER: Then we come to para 7, the second 7 sentence. 8 9 MR STOLJAR: I don't press that, Commissioner. 10 11 THE COMMISSIONER: And then para 7, the third sentence. 12 13 MR STOLJAR: Not pressed. 14 15 THE COMMISSIONER: Paragraph 8? 16 17 MR STOLJAR: Not pressed. 18 19 THE COMMISSIONER: Paragraph 9, the third sentence, which 20 begins: 21 22 I think he did so to prevent ... 23 24 MR STOLJAR: It is explanatory, the first sentence, 25 Commissioner: "Didn't want him to sign and was very vocal 26 about it". She needs to give some explanation as to what 27 happened. 28 29 MR AGIUS: He didn't give that evidence himself, 30 Commissioner. 31 32 THE COMMISSIONER: I think I will reject the third 33 sentence of paragraph 9, but give you leave to elicit 34 further oral evidence if you wish. 35 36 MR STOLJAR: If it please the Commission. 37 38 THE COMMISSIONER: Then we have paragraph 11, the fourth 39 and fifth sentences. 40 41 MR STOLJAR: I don't press those, Commissioner. 42 43 THE COMMISSIONER: Para 17? 44 45 MR STOLJAR: Not pressed. 46 47 THE COMMISSIONER: Para 22?


1 2 MR STOLJAR: I press that, Commissioner. 3 4 THE COMMISSIONER: You do press that? 5 6 MR STOLJAR: Yes. She can say that, in my submission. 7 8 MR AGIUS: Again, Mr Commissioner, he didn't give that 9 evidence. 10 11 THE COMMISSIONER: That doesn't matter on the question of 12 technical admissibility. 13 14 MR AGIUS: Indeed, his evidence was to the contrary, but 15 she gives no basis for her belief, or her understanding, or 16 who made that clear to him. 17 18 THE COMMISSIONER: Yes. All right. I will reject that if 19 you want me to, Mr Agius, with leave to Mr Stoljar to 20 pursue the matter further. 21 22 Paragraph 27, the second sentence? 23 24 MR STOLJAR: Not pressed, Commissioner. 25 26 THE COMMISSIONER: Paragraph 29? I personally don't have 27 any trouble with the first sentence. The second sentence, 28 I think, is obviously difficult for Mr Agius to deal with 29 in its present form. Perhaps the third sentence is in the 30 same position. 31 32 MR STOLJAR: May it please the Commission. 33 34 THE COMMISSIONER: I will allow the first sentence and 35 reject the next two in paragraph 29. 36 37 MR STOLJAR: I can ask who are the employees, 38 Commissioner, if that solves the problem. 39 40 THE COMMISSIONER: Another thing is it is really sort of 41 a summary of an email exchange, which is a natural thing 42 for a person to do. 43 44 MR AGIUS: If it is just a summary of the email exchange, 45 and reflects no more than the emails, then I don't press 46 the objection. But it goes a little further than that, at 47 the top of page 8, the second line.


1 2 THE COMMISSIONER: I think I will reject that but give 3 Mr Stoljar leave to make it more specific. 4 5 MR STOLJAR: Is that sentences two and three, 6 Commissioner? 7 8 THE COMMISSIONER: Yes, I think that is right. I mean, 9 the first half of the second sentence is not really 10 objected to because it repeats the email, but otherwise the 11 second and third sentences are what I was ruling on. 12 13 Paragraph 36. I do not think that is a particularly 14 meritorious objection. Mr Lewis is going to give evidence. 15 Mr Lewis is a key part of the business. Baron Parke might 16 regard that as inadmissible hearsay, but I am not sure it 17 is a particularly useful objection. So, unless you have 18 anything further, Mr Agius, I will allow that. 19 20 MR AGIUS: I won't press that. 21 22 THE COMMISSIONER: Very well. Then we get to paragraph 23 51. Unless you have anything to say, Mr Stoljar, I think 24 I will reject that but grant you leave to get it more 25 concrete, if that is possible. 26 27 Then we have paragraph 71. I do not see those 28 sentences in paragraph 71 as doing anything more than 29 really repeating what is said in the emails, or email which 30 is behind paragraph 48. If there is something extra there, 31 Mr Agius, what I have just said does not have application, 32 but do you maintain your objection? 33 34 MR AGIUS: On that basis, Mr Commissioner, we won't press 35 it. 36 37 THE COMMISSIONER: That gets us then to paragraph 78. It 38 may be vulnerable to objection, but is it particularly 39 important or damaging, or even controversial? We had some 40 evidence before, didn't we, that Mr O'Mara was happy 41 with -- 42 43 MR AGIUS: I won't press that objection. I will deal with 44 it in cross-examination. 45 46 THE COMMISSIONER: Very well. Paragraph 88, I think 47 I probably have to reject that, subject to a right to


1 further - yes? 2 3 MR STOLJAR: Commissioner, this is actually in a bit of 4 a different category. This is an example of the very kind 5 of problem that is quite typical in cases studies we have 6 seen. 7 8 The situation in which something is being said 9 allegedly - and, of course, you will need to make 10 a decision as to whether it has been made out or not, and 11 Mr Agius needs the ability to cross-examine and make 12 submissions about it. But the proposition is that someone 13 has gone off to different sites and has, in substance, 14 bad-mouthed this person, or this company. She then rings 15 up and confronts the particular person, that is in 16 paragraph 89, and that person denies it, the conversation 17 is ended, and then there is further debate about it. 18 19 THE COMMISSIONER: Yes, I see your point. 20 21 MR STOLJAR: It is the position that businesses are in who 22 tangle with some officials - and I am not saying that has 23 happened here and I am not saying it happens in every case, 24 but it does happen, according to the evidence we have seen. 25 On some occasions statements like this are made and are 26 then denied, and no-one can really establish it. 27 28 If people are being put to strict proof in 29 a commercial sense or in a court sense, then, yes, it is 30 a bit vague and it is a bit hearsay, but this is the kind 31 of thing that, in my respectful submission, this Commission 32 should in fact be looking at and should be receiving. 33 34 THE COMMISSIONER: Yes. I think subject to - yes, 35 Mr Agius? 36 37 MR AGIUS: That response assumes the truth. This is at 38 least hearsay twice over: 39 40 Peter explained to me that he had received 41 a call from the foreman [at the company 42 and] Antilija who told him that Lomax had 43 been speaking to one of the Antilija boys 44 and apparently said ... 45 46 We used to play a game called Chinese whispers, and, by the 47 time it gets to the end, the version of events is quite


1 different to the first whisper and, really, there is that 2 element. 3 4 THE COMMISSIONER: Can I tell you my problem, Mr Agius. 5 If Mr Lomax in this conversation with Mrs Marcantonio in 6 paragraph 89 had concluded his remarks by saying, "Dear 7 Mrs Marcantonio, I don't remember this, but if you could 8 tell me the details I'll certainly look into it 9 because I am deeply concerned about it", the statement, 10 "I don't have time for your crap" is strong support for the 11 making of the complaint, and the precise details of the 12 name of the foreman, so on and so forth, doesn't really 13 matter much, does it? 14 15 MR AGIUS: Before he said that, he said, "I don't know 16 what you are talking about." 17 18 THE COMMISSIONER: Yes, but unfortunately for him he said 19 "if" - "if", subject to contradiction by Mr Lomax, of 20 course, and, for that matter, subject to -- 21 22 MR AGIUS: Well, we have put on a statement from him. 23 24 THE COMMISSIONER: Yes, subject to cross-examination of 25 Mrs Marcantonio. In assessing the admissibility of 26 evidence, we have to assume that it will be accepted. The 27 retort, "I don't have time for your crap" rather undermines 28 the slightly less rude contribution to the conversation he 29 made a little earlier. 30 31 The points that are made in your note are really, in 32 a sense, beside the issue. Assuming the correctness of 33 what is said about Mr Lomax, his response makes rather 34 immaterial the detail of the foreman and the Antilija boys, 35 and so forth. 36 37 MR AGIUS: I appreciate that in this case we do have the 38 Union person who can come along and say what he did or 39 didn't say, but our objection is to the reception of the 40 double hearsay as evidence of the truth of its content. It 41 may be that this explains the history. It may be that this 42 explains the phone call, but as to what was said to one of 43 the Antilija boys, who is not identified, and as to what he 44 said to the foreman for Antilija, and as to what the 45 foreman said to Peter, we simply can't test any of that and 46 Peter hasn't given any of this evidence. 47


1 THE COMMISSIONER: Any further argument do you wish to 2 advance? 3 4 MR AGIUS: No. 5 6 THE COMMISSIONER: I will allow paragraph 88. 7 Paragraph 91 is objected to as hearsay. 8 9 MR STOLJAR: In my submission, it really travels from the 10 ruling -- 11 12 THE COMMISSIONER: Yes, I think it does. I would allow 91 13 subject to any further argument of Mr Agius's. 14 15 MR AGIUS: It is the same argument. 16 17 THE COMMISSIONER: Yes, I think it is. Paragraph 96, the 18 last sentence. 19 20 MR STOLJAR: I don't press the last sentence. 21 22 THE COMMISSIONER: Paragraph 104, the second sentence. 23 24 MR STOLJAR: I don't press that, Commissioner. 25 26 THE COMMISSIONER: Yes. You tender Mrs Marcantonio's 27 statement? 28 29 MR STOLJAR: Yes, I do, Commissioner. 30 31 THE COMMISSIONER: Mrs Marcantonio's statement will be 32 received into evidence, subject to those rulings that 33 counsel and I have been working on for the last little 34 while. 35 36 STATEMENT OF MARIA ROSA MARCANTONIO 37 38 MR STOLJAR: Q. Do you have a copy of your statement 39 there? 40 A. Yes. 41 42 Q. The two volumes. If you have a look at 43 paragraph 9 - in fact, why don't you just not look at it 44 for the minute. I will ask you the question. I want to 45 ask you about a paragraph in there and you can tell me your 46 response. 47 A. Mmm-hmm.


1 2 Q. You know that in mid 2011 Peter, your husband, signed 3 the Union's EBA? 4 A. Yes. 5 6 Q. Were you happy about that? 7 A. No. 8 9 Q. Why did he sign it, to your understanding? 10 11 MR AGIUS: I object to that. Not taking the witness to 12 paragraph 9 has the same evil that the paragraph, as it is 13 spelt out, has. She cannot speak for what was in Peter's 14 mind in circumstances where Peter, himself, has not given 15 any evidence of it and we can't possibly test it. 16 17 THE COMMISSIONER: You can always recall Mr Marcantonio or 18 ask for him to be recalled by Mr Stoljar. 19 20 Q. Let me just ask this question, Mrs Marcantonio. 21 A. Yes. 22 23 Q. You weren't happy with the fact that your husband had 24 signed the EBA; right? 25 A. That's correct. 26 27 Q. Why weren't you happy? 28 A. We were just starting out as a commercial company. 29 We'd only been doing commercial for just over a year, maybe 30 two, and what they were proposing in the EBA wasn't really 31 viable for our company at the time. 32 33 MR STOLJAR: Q. So why sign it? 34 A. The pressure. The pressure of the unions going on to 35 job sites, either closing it down or -- 36 37 MR AGIUS: I object to this. Unless this is first-hand 38 evidence, there's no basis for this and these are general 39 statements. 40 41 THE COMMISSIONER: From a person who is pretty experienced 42 in the industry, knows the way life operates 43 44 MR AGIUS: That's an assumption that that is the way life 45 operates and -- 46 47 THE COMMISSIONER: I think, Mr Stoljar, that Mr Agius does


1 have a technically strong point and I stress the adverb. 2 3 MR STOLJAR: May it please the Commission. 4 5 Q. Could you come to paragraph 32. I am going to take 6 you to a page in the bundle, so you should have two bundles 7 of materials there and if you go to page 153, behind 8 tab 11, you should be looking at an email of 6 February 9 2014? 10 A. Yes. 11 12 Q. You say there: 13 14 I will be asking the employees mentioned to 15 contact you personally ... This is due to 16 a complaint made against the CFMEU to us. 17 18 Had you received a complaint at that time? 19 A. Yes, I had. 20 21 Q. Who had made the complaint? 22 A. One of our employees. 23 24 Q. Are you able to name that person? 25 A. Yes. His name is Angelo. 26 27 Q. Angelo? 28 A. Yes. 29 30 Q. Was the complaint oral or in writing? 31 A. No. He had called me. 32 33 Q. He rang you on the telephone? 34 A. Yes. 35 36 Q. Doing the best you can, what were the words that he 37 said? 38 A. That he wasn't sure what he had signed, I think it was 39 that morning or the night before, and that we weren't to 40 give any bank details to the CFMEU because that's not what 41 he thought he was signing. 42 43 Q. This was after the vote that had taken place, was it? 44 A. Yes. 45 46 Q. How many employees voted? Were you there personally 47 when the vote took place?


1 A. I wasn't there personally. 2 3 Q. How many employees did you have in February 2014? 4 A. I think we had 10 or 12. 5 6 Q. And Angelo was one of those? 7 A. Yes. 8 9 Q. Did anyone else communicate any issues or concerns to 10 you? 11 A. Not at that stage, no. 12 13 Q. When you say "not at that stage", at any stage? 14 A. After we had spoken to Angelo, I had contacted the 15 other boys that were on that list and a few of them did say 16 that they did not want their bank details passed on either. 17 18 Q. Did anyone else communicate any other concerns that 19 they might have had? 20 A. No. 21 22 Q. I just want to be clear on this, Mrs Marcantonio. You 23 know that there were a series of meetings at which the EBA 24 was discussed in late 2013 -- 25 A. Yes. 26 27 Q. -- involving other contractors, concrete contractors. 28 Did you, yourself, go to any of those meetings? 29 A. No. 30 31 Q. So you have set out, as best you can, in paragraphs 14 32 and following what you know about those deliberations, but, 33 as I say, you weren't personally involved in them? 34 A. No, that's correct. 35 36 Q. The audit process you deal with in paragraph 34 and 37 following. 38 A. Yes. 39 40 Q. That is a process that you are engaged in yourself as 41 the manager? 42 A. That's right. 43 44 Q. What's happened? Has it actually been concluded? 45 A. No. 46 47 Q. What was the last thing you heard about it?


1 A. The last email I got from the auditors was that they 2 had closed on 29 April. 3 4 Q. When did you receive that email? 5 A. I'm not sure of the date. I can't remember. I think 6 it's in an email. 7 8 THE COMMISSIONER: It is behind tab 103. 9 10 MR STOLJAR: Q. So you received that on 4 June? 11 A. Yes. 12 13 Q. What has happened to the audit? It is just in 14 abeyance, as far as you know? 15 A. That's right, nothing has happened. 16 17 Q. And you have set out what you can say about it in 18 paragraphs 34 right through to 105? 19 A. Yes. 20 21 MR STOLJAR: I don't have anything further, thank you, 22 Commissioner. 23 24 THE COMMISSIONER: Yes, Mr Agius. 25 26 <EXAMINATION BY MR AGIUS: 27 28 MR AGIUS: Q. Mrs Marcantonio, did you tell the Union 29 that Angelo and any others who had withdrawn their 30 permission to provide their bank details had done so? 31 A. Yes, I think it's in an email that I wrote to them 32 that I won't be supplying them with the bank details and if 33 they wanted any further details, they'd have to contact the 34 boys themselves. 35 36 Q. And was that the last you heard of it? 37 A. That's right. 38 39 Q. There are just a number of matters that I have to put 40 to you for both technical and important reasons. If you 41 just bear with me for a moment because they are in a series 42 of different statements. You have annexed to your 43 statement one page of the Audit Compliance Certificate 44 dated 1 July 2014? 45 A. Sorry? 46 47 Q. You have annexed to your statement one page of the CAS

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1 Audit Compliance Certificate dated 1 July 2014? 2 A. Right. 3 4 Q. But there are a number of other pages for that 5 certificate? 6 A. I'm not sure. I don't understand what you're saying, 7 sorry. 8 9 Q. You don't understand what I'm saying? 10 A. No. I don't know what you are referring to. 11 12 Q. In your statement you refer to the Audit Compliance 13 Certificate which is at tab 15. Can I ask you to turn that 14 up? 15 A. Yes. 16 17 Q. There are a number of other pages, however, are there 18 not, behind that certificate? 19 A. No. Actually, we didn't receive any other pages at 20 that stage. 21 22 Q. Did you receive them later? 23 A. Yes, we did, and they're further down. 24 25 Q. You received them before you made your statement? 26 A. Sorry? 27 28 Q. You received them before you made your statement? 29 A. The other pages? 30 31 Q. Yes. 32 A. Yes. 33 34 Q. But they haven't found their way into your evidence? 35 A. They should be in there. 36 37 THE COMMISSIONER: Actually, can I just make this 38 observation, and I am quite sure Mrs Marcantonio can look 39 after herself, paragraph 38 is part of a narrative and here 40 it narrates that on or around 1 July, Gungahlin Concrete 41 received an Audit Compliance Certificate from CAF and there 42 we have, on page 210, what Gungahlin Concrete received on 43 or about 1 July. What's wrong with that? 44 45 MR AGIUS: It will be our contention that the certificate 46 contained more than the one page. 47


1 THE COMMISSIONER: The one page starts off with 2 "Name: Gungahlin Concrete Pty Ltd" and ends up with: 3 4 Authorised Officer. 5 Rosemary Saridakis. 6 7 It doesn't say "annexures follow". 8 9 MR AGIUS: I understand that. 10 11 THE COMMISSIONER: Perhaps I am overreacting, but I just 12 don't see there is anything testimonially wrong with what 13 Mrs Marcantonio has done. Pursuant to what duty -- 14 15 MR AGIUS: Well, on my instructions -- 16 17 THE COMMISSIONER: Do you think it should have said, 18 "On or around 1 July we received one scrap of paper and 19 then a few months later we received some other scraps of 20 paper"? 21 22 MR AGIUS: On my instructions, the balance of the material 23 which relates to the Audit Compliance Certificate was, 24 in fact, provided and was available, so that the detail of 25 the non-compliance was available and made known to the 26 recipient. That is my point and we will have some evidence 27 about it, I expect. 28 29 THE COMMISSIONER: But do you aver or do your instructions 30 asseverate that what was sent on 1 July, or thereabouts, 31 consisted of more than one page? 32 33 MR AGIUS: I can't answer that at the moment, but I am told 34 that the documents that were sent out are believed by those 35 who instruct me to contain a great many more pages than the 36 one page which appears as an annexure to the statement. 37 38 THE COMMISSIONER: Does Ms Saridakis give you 39 instructions? 40 41 MR AGIUS: No. 42 43 THE COMMISSIONER: Yes. 44 45 MR AGIUS: Q. In paragraph 54 you speak of a conversation 46 that you say you had with Jason O'Mara. You described it 47 as a heated discussion and you have set out some of the


1 conversation. I suggest to you that in that conversation 2 you asked him, in substance, whether he'd been on a job and 3 had been bad-mouthing GCS? 4 A. That's correct. 5 6 Q. And that he informed you that he had been on job sites 7 but he had not been in any way bad-mouthing GCS? 8 A. That's what he states. 9 10 Q. And that at no stage had he told any contractor to get 11 rid of GCS? 12 A. That's what he said. 13 14 Q. And despite those denials, you still threatened him 15 with defamation proceedings? 16 A. That's correct. 17 18 Q. At that time had your company been employing 19 additional labour; that is, labour hire? 20 A. No. 21 22 Q. For commercial work? 23 A. No. 24 25 Q. Do you swear that the commercial work that you were 26 doing at that time could be managed by only six employees? 27 A. It was agreed that only six employees would be 28 audited. It was quite clear to Jason, when we agreed on 29 this in that meeting with Rosemary and Richard, that six 30 employees would be audited. He was quite clear on the fact 31 that we have a commercial side and we have a residential 32 side. He agreed to audit the six employees on the 33 commercial side. 34 35 Q. I suggest to you that he made no such agreement and 36 that he may have been told that you only had six commercial 37 employees? 38 A. That's not correct. 39 40 Q. What, you did not say that you only had six commercial 41 employees? 42 A. No, he was very clear on the fact that we had 43 commercial and residential. In fact, we had a conversation 44 stating that if we were to put our residential boys on to 45 the commercial job site, at what rates would they be paid. 46 47 Q. I suggest to you that he never gave you any


1 dispensation so that only six employees would be audited? 2 A. That's incorrect. 3 4 Q. And that what you had said to him was that you only 5 had, words to the effect that you only had six employees 6 working on commercial sites? 7 A. No, that's not correct. 8 9 Q. One question I did ask you which I don't think we have 10 an answer to is this: 11 12 Do you swear that the commercial work that 13 you were doing at that time could be 14 managed by only six employees? 15 16 And then you went on to say: 17 18 It was agreed that only six employees would 19 be audited ... 20 21 Et cetera. But you haven't answered -- 22 A. They've never stated that the commercial jobs would 23 only be done with six employees. It depends what 24 commercial job we are talking about. Yes, sometimes it can 25 be done with six, sometimes they need more. 26 27 Q. That's still not an answer to my question. Can I put 28 it to you again so that you have it clearly. Do you swear 29 that the commercial work that you were doing at the time 30 could be managed by only six employees? 31 A. It depends what commercial job you're talking about. 32 33 Q. The commercial work that you had on your books at the 34 time, at about the time you say Jason said that he would 35 accept an audit of only six employees? 36 A. Well, like I said before, there were times that we 37 needed six and there were times that we needed more. 38 39 Q. And when you needed more, did you use labour hire? 40 A. No, we had our commercial side and we also used CPS. 41 42 Q. So is the answer that you never use labour hire? 43 A. That's correct, we don't use labour hire. 44 45 Q. On commercial work? 46 A. That's correct. 47


1 Q. So you did use from time to time the workers that you 2 would normally employ on residential work? 3 A. That's correct. 4 5 Q. To assist with the commercial work? 6 A. That's correct. 7 8 Q. You understood, didn't you, that they had to be paid 9 under the EBA? 10 A. And they are paid under the EBA. 11 12 Q. And you also understood, didn't you, that those 13 payments had to be audited? 14 A. That's not what the audit was about. The original 15 agreement with the audit was for the six employees. 16 17 Q. I think I put this to you but in case I haven't, 18 I suggest to you that that was not the substance? 19 A. That's not correct. 20 21 THE COMMISSIONER: I don't want to be critical, 22 Mrs Marcantonio, but when Mr Agius asks a question it is 23 best for him just to finish the question and then you can 24 answer it. I know you can sort of see the punchline 25 coming, but it's just best to let him finish the same way, 26 I am sure, he won't interrupt your answers, not that he has 27 been. 28 29 MR AGIUS: Q. You received an email from Mr O'Mara in 30 October 2014 seeking a full list of all the projects that 31 you were undertaking so that the Union could check 32 induction records? 33 A. That's correct. 34 35 Q. You knew, didn't you, or at least believed, that the 36 purpose of that email was to see how many extra workers CGS 37 were using? 38 A. Yes, that's correct. 39 40 Q. You had a meeting, did you not, in late October with 41 Mr O'Mara which was also attended by your husband and 42 Richard Lewis at the Union? 43 A. Yes. 44 45 Q. And a lady by the name of Shayne Hall, an employee of 46 the Union, was also there? 47 A. I'm not sure.


1 2 Q. I will try and assist your recollection. 3 A. I can't recall. 4 5 Q. It was just before she went off on maternity leave? 6 A. Shayne Hall? 7 8 Q. Yes. 9 A. I don't recall. I do remember there being a lady that 10 just went on maternity leave, but that was in May this year 11 and her name was Roz. 12 13 Q. During the course of this meeting Mr O'Mara sought 14 information from CGS about the use of supplementary labour, 15 isn't that right? 16 A. That's correct. 17 18 Q. And you refused to provide that information? 19 A. Because we don't have that information to provide. 20 21 Q. You didn't say that, though, did you? 22 A. Yes, we did. 23 24 Q. At no stage, I put to you, during the course of the 25 meeting was either Mr O'Mara or Ms Hall from the Union rude 26 to you? 27 A. When they walked in Jason O'Mara did not acknowledge 28 that I was there; I class that as being rude. 29 30 Q. At paragraph 78 of your statement you say: 31 32 While our residential employees are paid at 33 the commercial rate and generally received 34 the same benefits as those doing commercial 35 work, there is a difference in the size of 36 the redundancy contributions we make on 37 their behalf to ACIRT. When the union 38 audited the business, the auditors failed 39 to look at whether the particular employee 40 was working on a residential site or 41 a commercial site and as a result they have 42 insisted that we back pay our residential 43 employees. 44 45 A. That's correct. 46 47 Q. What I suggest is in fact the situation, that the six


1 names that were provided by your company were all said to 2 be engaged in commercial work and two of those were said to 3 be on salary, you agree with that? 4 A. That's correct. 5 6 Q. The calculations by the auditors related to the four 7 persons who were not on salary who were engaged on 8 commercial work? 9 A. That's correct, but they're not always on commercial 10 work; they do do residential as well. 11 12 Q. I suggest to you that at the meeting in May of this 13 year, at no stage were you asked by Mr O'Mara to provide 14 proof that CGS had paid the auditors' fees? 15 A. Yes, he did ask me if we had paid them twice and if I 16 could show him how we had paid them twice. He stated to me 17 that he was unaware that we had paid them twice. 18 19 Q. Could I take you to paragraph 88 - or just so you have 20 the context, paragraphs 88, 89 and 90 of your statement. 21 I suggest to you that in the conversation with Mr Lomax, 22 the telephone conversation that is referred to in 23 paragraph 89 of your statement, that he denied that he'd 24 been making any accusations against CGS. What do you say 25 to that? 26 A. That's correct. 27 28 Q. And I suggest that he said to you that if you had any 29 evidence of the accusations, you should go to the Union 30 office and put it to his boss? 31 A. I don't recall that. 32 33 Q. You alleged in the conversation that you had 34 recordings of his conversations with the foreman at 35 Antilija? 36 A. That's correct. 37 38 Q. But you never did? 39 A. No, that's correct. 40 41 Q. He invited you to take those recordings to his boss? 42 A. That's right. That's correct. 43 44 Q. But you never did? 45 A. No, that's correct. 46 47 Q. And you never went to the boss to complain about


1 Mr Lomax making accusations about CGS? 2 A. That's right. 3 4 Q. I suggest to you that Mr Lomax at no stage ever 5 threatened to shut down the job or to stop CGS working on 6 the Antilija job? 7 A. From what I recall, I never - I actually did not 8 mention to Johnny on the phone that it was coming from 9 Antilija. When I got off the phone I received a phone call 10 from Peter asking me what the hell I had said. I told him 11 that I had called his bluff. He then proceeded to call 12 Antilija, Johnny Lomax proceeded to call Antilija to shut 13 the job site down, which I had never mentioned to him that 14 it was Antilija. 15 16 Q. You have no knowledge of Johnny Lomax calling Antilija 17 to get the job shut down, do you? 18 A. Antilija called Peter to tell him that's what had 19 happened. 20 21 Q. Now you are purporting to say what Antilija said to 22 Peter -- 23 A. That's correct. 24 25 Q. -- and then what Peter said to you? 26 A. That's correct. 27 28 Q. And you are putting that forward as true? 29 A. Correct. 30 31 Q. Can I suggest to you that at no stage did Mr Lomax 32 ever threaten to shut the job down or to stop your company 33 working on that job? 34 A. I believe he did. 35 36 Q. I suggest to you that the version of the conversation 37 that you have in your statement is not accurate? 38 A. I believe that to be true. 39 40 THE COMMISSIONER: Q. By which you mean, I think, 41 Mrs Marcantonio, that you believe the version of the 42 conversation which is in your statement is true? 43 A. That's correct. 44 45 MR AGIUS: I am sorry, there is just one more matter that 46 I need to cover with you. No, thank you, that is the 47 examination.


1 2 THE COMMISSIONER: Yes, thanks, Mr Agius. Anything 3 further, Mr Stoljar? 4 5 MR STOLJAR: No, Commissioner. 6 7 THE COMMISSIONER: Mrs Marcantonio, can be excused, 8 Mr Agius? 9 10 MR AGIUS: No objection. 11 12 THE COMMISSIONER: Thank you for attending, 13 Mrs Marcantonio. You are excused from further attendance 14 on the summons that you have responded to. You may leave 15 the witness box. 16 17 <THE WITNESS WITHDREW 18 19 MR STOLJAR: Commissioner, I know it is getting late but 20 Mr Lewis is the next witness. Mr Lewis, I am just taking 21 instructions, has a personal issue that he really needs to 22 get away. 23 24 THE COMMISSIONER: In other words, he can't come tomorrow? 25 26 MR STOLJAR: No. 27 28 THE COMMISSIONER: Let's have him now. 29 30 MR STOLJAR: And it is a serious personal issue, 31 Commissioner. 32 33 THE COMMISSIONER: Mr Agius, you have no problem with 34 Mr Lewis giving evidence now? 35 36 MR AGIUS: No. 37 38 THE COMMISSIONER: Good. Let's get him. 39 40 <RICHARD DAVID LEWIS, affirmed: [4.08pm] 41 42 MR STOLJAR: Commissioner, my friend has now given me 43 a list of objections. I wonder if it might be appropriate 44 if we could perhaps deal with those overnight. I was 45 hoping Mr Lewis could get away as soon as possible. 46 47 THE COMMISSIONER: Yes.

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1 2 MR AGIUS: Can I hand up the sheet? I am not opposed to 3 dealing with it later. 4 5 THE COMMISSIONER: Yes. 6 7 MR AGIUS: I understand that Mr Lewis is in some 8 difficulty. 9 10 THE COMMISSIONER: There may be some slight problem but 11 that's the best course. Let's concentrate on expedition 12 now. 13 14 MR STOLJAR: Thank you. 15 16 THE COMMISSIONER: We will deal with those objections 17 tomorrow morning. I am sorry you have a difficulty, 18 Mr Lewis. I am sure counsel will try to get through things 19 as fast as possible. 20 21 <EXAMINATION BY MR STOLJAR: 22 23 MR STOLJAR: Q. Could you tell the Commission your full 24 name? 25 A. Richard David Lewis. 26 27 Q. You are a resident of the ACT? 28 A. I am. 29 30 Q. You are the general manager and second in charge at 31 Gungahlin Concrete? 32 A. I am. 33 34 Q. You prepared a witness statement in these proceedings 35 dated 3 July 2015. Do you have a copy of that with you? 36 A. No, I don't. 37 38 Q. I will provide you with one. Is the content of your 39 statement true and correct? 40 A. Apart from a couple of changes I requested yesterday. 41 42 Q. Yes. Was that in paragraph 9, the first one? 43 A. Yes. Any reference to Dean Hall shouldn't be in 44 there. I don't know where it came from. 45 46 Q. The last line should simply read: 47

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1 I communicated our concerns in this regard 2 to Jason O'Mara ... 3 4 A. Yes. 5 6 Q. And delete the words "and Dean Hall"? 7 A. Yes, please. 8 9 Q. Was the next one in paragraph 19? 10 A. Yes. I don't know how "Dean Hall" got in there. 11 Again, it should just read "with the Union", "with the 12 CFMEU". 13 14 Q. Do you know who it was at the CFMEU? 15 A. No. 16 17 Q. So where it says "with Dean Hall", it should say "with 18 the CFMEU"? 19 A. Yes. It was communicated to me that they were regular 20 meetings. 21 22 Q. And likewise, in the third line where it says "and 23 that Dean said", it should be, "and that the CFMEU said"? 24 A. Yes. 25 26 Q. Was there another correction you needed to make, 27 Mr Lewis? 28 A. Yes. I am looking for it. 29 30 Q. Was it to paragraph 29? 31 A. Yes. The way this was written was - yeah, incorrect. 32 33 Q. What is the correction you would like to make? 34 A. The EBAs were available before that and I don't know 35 where I knew it was the 2013 EBA, because I could see it in 36 their hands. Yeah, I don't know where that came from. 37 38 Q. So I should delete the final sentence, that is the 39 starting point? 40 A. Yes, correct. 41 42 Q. And then where it says: 43 44 He asked the employees to vote in favour of 45 the 2013 EBA and said words to the effect 46 of, "Let's put it to a vote" ... 47


1 Is the point they already had a copy of the 2013 EBA? 2 A. Yeah, there were copies available right at the start 3 of the meeting. 4 5 Q. At the start of the meeting? 6 A. Yes. 7 8 Q. So he didn't hand them each a copy of the 2013 EBA -- 9 A. No. 10 11 Q. -- because copies were available at the start of the 12 meeting. And what about where it says: 13 14 ... and another document to sign. 15 16 Firstly, what was the other document? 17 A. The other document was a membership form for the Union 18 and on the back was the authorisation to deduct fees. 19 20 Q. Was that handed out at the same time or was that just 21 available at the start of the meeting? 22 A. I think it was available at the start of the meeting, 23 but the guys generally just sort of - you just picked up 24 paperwork. 25 26 Q. At the start? 27 A. Yeah. 28 29 Q. Subject to those three corrections, is the content of 30 your statement true and correct? 31 A. Yes, it is. 32 33 MR STOLJAR: I would ask that it be received into 34 evidence, Commissioner, noting for the record that you have 35 not dealt with Mr Agius's objections. 36 37 THE COMMISSIONER: Yes, it is received subject to 38 considering those objections of Mr Agius. 39 40 MR STOLJAR: Q. When did you start at Gungahlin, 41 Mr Lewis? 42 A. February 2012. 43 44 Q. 2012 or 2013, or you're not sure? 45 A. I've been there two and a half years. 46 47 Q. Just very briefly, at paragraph 32 you say:


1 2 I know that at least two of the four 3 employees who signed membership forms did 4 not want to be Union members. 5 6 Who are the employees you are referring to? 7 A. There was Angelo Barletta and another guy that we'd 8 had for a few weeks and left very shortly after, I can't 9 remember his name. 10 11 Q. What did they actually say to you to cause you to form 12 that view? Did Angelo say something? 13 A. Well, yeah, Angelo expressed to me how upset he was 14 and he got quite upset. He thought there was going to be 15 money coming out of his pay. 16 17 Q. And what about the other fellow, what did he say to 18 you? 19 A. He just said that he never wanted to be a Union member 20 and he just signed the form. 21 22 Q. In paragraph 8 you say you went to an initial 23 pre-signing meeting with Peter? 24 A. Yes. 25 26 Q. Was he really leading the discussion so far as 27 Gungahlin was concerned and were you helping him, is that 28 right or not? 29 A. The initial pre-signing meeting? No-one said a great 30 deal. None of the concreters had much to offer. I was 31 really surprised at how stale the meeting was. There was 32 a tone of that this was inevitable. There was very little 33 discussion about changes in rates or increases in costs. 34 My best recollection was that one of the most important 35 things discussed was the rain clause. 36 37 Q. Which clause? 38 A. There is a clause for double time for when it's 39 raining, as in someone standing about when it's raining and 40 when it's not, and when it applies and when it doesn't. 41 That was - I walked away from that meeting surprised that 42 that was about the most intense thing discussed. 43 44 Q. Did anyone that you can recollect use the expression 45 "level playing field" at the meeting? 46 A. Yes. 47


1 Q. Who used that expression? 2 A. One or more of the CFMEU. 3 4 Q. What did they say? Tell me who was there from the 5 CFMEU? 6 A. It was Jason O'Mara, Johnny Lomax, I think Dusty was 7 there and a couple of others. 8 9 Q. Who used that express "level playing field"? 10 A. Jason, I believe. 11 12 Q. Did you take any notes, by the way? 13 A. Of that meeting? 14 15 Q. Yes. 16 A. No. 17 18 Q. Did anyone that you saw? 19 A. Not that I saw, no. 20 21 Q. Just doing the best you can - I know it was a while 22 ago - what did Mr O'Mara say about "level playing field"? 23 A. Well, my understanding of "level playing field" is -- 24 25 MR AGIUS: I object to that. That's not an answer to the 26 question. The question is what did Mr O'Mara say about 27 "level playing field". 28 29 THE WITNESS: The only way I can reply to that is the 30 context that we were, that we were taking it and that was 31 that our labour costs would be identical. 32 33 MR STOLJAR: Q. You mean all the contractors' labour 34 costs? 35 A. Yeah, absolutely. 36 37 Q. By that you mean wages and entitlements? 38 A. Yes, absolutely, because - yeah, the biggest problem 39 in the industry is people that don't have an EBA that we 40 get undercut by all the time because we can't afford to 41 take our rates that low. So that was the context of it, 42 that all was fair as in costs to our companies across the 43 major commercial players. 44 45 Q. Did people talk about what would need to be charged to 46 meet those costs? 47 A. No, I've never had a conversation along that sort


1 of -- 2 3 Q. I don't think you have seen it, but Mr O'Mara has put 4 on a statement where he says that at that meeting Pietro 5 complained about the rates he was receiving from builders. 6 Did that happen? 7 A. My recollection of that was that Peter said, 8 "The rates are too low in ACT for these increases", and 9 that was about it and pretty much everyone agreed. 10 11 Q. So "rates" could mean what you pay your workers or 12 what you charge your head contractor? 13 A. What you charge the head contractors. 14 15 Q. So he said that, that it's too low? 16 A. Yeah. It was just a passing comment and people 17 agreed. It was a general consensus and moved on. It was 18 an off-the-cuff comment. 19 20 Q. Was there any discussion about setting a minimum rate? 21 A. No, absolutely not. 22 23 MR STOLJAR: Yes, I nothing further, thank you, 24 Commissioner. 25 26 THE COMMISSIONER: Yes, Mr Agius. 27 28 <EXAMINATION BY MR AGIUS: 29 30 MR AGIUS: Q. Mr Lewis, I will be reasonably short. 31 I don't want you to be anxious about when you can get away 32 from here. 33 A. No, that's okay. 34 35 Q. You have made a change to paragraph 9 and to another 36 paragraph and in each of them there is a reference to 37 Dean Hall. The other paragraph was paragraph 19. What 38 brought about that change of mind? 39 A. Because I've never met Dean Hall. 40 41 Q. How did it come to be in your statement? 42 A. Because - I'll wait for -- 43 44 Q. I am sorry, I am not accusing you of anything. I just 45 want to know. We have a statement which appears to have 46 been signed by you on 3 July and in two places it refers to 47 Dean Hall and that is in two paragraphs and today you have

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1 asked that that be removed. I am not being critical of you 2 for that. I am simply wanting to know what you can tell us 3 about how Dean Hall came to be mentioned in paragraphs 9 4 and 19 in the first place? 5 A. Right. It's pretty simple. I was never sure which 6 one was which, Dean Hall or Jason O'Mara. It was only 7 after that that I've realised that - because over the 8 phone, with the Commission, I would have said Jason O'Mara 9 or Dean Hall, not "and", and, yeah, and then I realised 10 that it was - yeah, it was Jason, so - and when - when 11 I went in to give the statement at Gungahlin Police 12 Station, we made a number of changes and I scanned the 13 document because I'd read it, yeah, I was familiar with the 14 opening sentences, I didn't notice it. 15 16 Q. You didn't read it through before you signed it? 17 A. Well, I had to be somewhere and -- 18 19 Q. I'm sorry? 20 A. I had to be somewhere and I thought the only changes 21 made to it were what we went through. 22 23 Q. It is just -- 24 A. It was more an error. 25 26 Q. The Commissioner will want to know how much of it is 27 actually your evidence and how much of it might be wrong. 28 Have you checked any of the rest of it to see if there are 29 any other mistakes in it? 30 A. Yeah, of course I have. 31 32 Q. Were you told what was in Mr Dean Hall's statement, 33 which has been provided to the Commission, dated 13 July 34 2015? 35 A. I'm not aware of any statements. 36 37 Q. Did anybody tell you that Mr Hall had said that, in 38 effect, it wasn't him in paragraphs 9 and 19 of your 39 statement? 40 A. I didn't know that. I only noticed this yesterday and 41 asked for it to be changed. 42 43 THE COMMISSIONER: You mentioned a date for Mr Hall's 44 statement. The one I have is actually dated 15 July. 45 Nothing may turn on this, or maybe there are two statements 46 47 MR AGIUS: The draft statement I have is dated 13 July.


1 2 THE COMMISSIONER: Has yours got 36 paragraphs? 3 4 MR AGIUS: No, it has five paragraphs. This is of 5 Mr Dean Hall? 6 7 THE COMMISSIONER: Yes, of Dean Hall 8 9 MR AGIUS: And of the witness I have a signed statement of 10 3 July -- 11 12 THE COMMISSIONER: Yes. 13 14 MR AGIUS: -- which has 36 paragraphs. 15 16 THE COMMISSIONER: I think everything is all right so far 17 as the witness is concerned. There is only one statement 18 of Dean Hall. 19 20 MR AGIUS: I am sorry, Commissioner? 21 22 THE COMMISSIONER: Yes, I see. There is a short statement 23 of the 13th. I am with you now. I am with you now. You 24 were right. You were right. 25 26 MR AGIUS: We have provided a number to deal with each 27 case study because we weren't sure whether they would be 28 called and re-called at the time we were settling these 29 statements. 30 31 THE COMMISSIONER: I understand now. 32 33 MR AGIUS: Q. Mr Lewis, would you agree that at no stage 34 did you ever express concerns to Mr O'Mara about how the 35 EBA would operate in relation to GCS, given the large 36 amount of domestic work that GCS performed? 37 A. Are you asking me if that never happened? 38 39 Q. Yes. What I am suggesting to you - let me put it 40 positively. You never expressed any concerns to Mr O'Mara 41 about the operation of the 2013 EBA as it related to GCS in 42 relation to the large amount of domestic work that GCS 43 performed? 44 A. Yes, I believe I did. 45 46 Q. I am suggesting to you that that never happened? 47 A. Well --


1 2 Q. That you didn't express concerns about it? 3 A. Well, I'm suggesting back that I did. 4 5 Q. You knew it didn't apply to domestic work, though, 6 didn't you? 7 A. No, it's about how the EBA affected us considering the 8 amount of domestic work we did. We were only 50 per cent 9 at that commercial place. 10 11 Q. But you knew it only applied to the commercial work? 12 A. Absolutely. 13 14 Q. At paragraph 22, you refer to a meeting in May 2014. 15 Just to give you some context, there is a letter of 15 May 16 received from Mr O'Mara regarding a possible breach of the 17 EBA for failing to provide information. You thought that 18 GC was compliant and had provided the material. Following 19 the receipt of the letter, you attended a follow-up meeting 20 with the Union and other concreters and then you go on to 21 say: 22 23 At that meeting it was clear that a number 24 of companies had failed to provide CAS ... 25 26 Who we understand to be the auditors: 27 28 ... with the required information. 29 30 The next sentence is subject to objection, but you say : 31 32 However, the Union seemed to come down on 33 GC because we had only provided CAS with 34 one week's worth of paperwork. 35 36 In fact, you only had provided the auditors with one week's 37 worth of paperwork, isn't that right? 38 A. Yeah, just in one small section, just the pay slips, 39 because it was my belief that the audit was designed so we 40 could prove that we'd changed all the pay rates in the 41 system. 42 43 Q. At that meeting all the concreters were told, 44 weren't they, that two concreting companies had not 45 complied with the audit process, but they weren't named, 46 and your company, as it turns out, was one of them? 47 A. Yes.


1 2 Q. And after the meeting, privately, Mr O'Mara spoke to 3 you about his concerns in relation to what he said was 4 a non-compliance; is that right? 5 A. Yes, and I expressed that I was just being taken by 6 surprise because I thought we were fully compliant. 7 8 Q. Then at paragraph 24 you speak of a meeting at the 9 Union's office and being told that you needed to submit 10 further paperwork to the auditors. In relation to that 11 meeting, I suggest to you that Mr O'Mara explained to you 12 that it was incumbent upon CGS to honour the terms of the 13 2011 EBA, even after it had passed its nominal expiry date, 14 and that this was because CGS had, after that nominal 15 expiry date, reduced its ACIRT payments and income 16 protection payments to its employees, contrary to the terms 17 of the 2011 EBA. Do you remember having a conversation to 18 that effect with Mr O'Mara? 19 A. Yes. 20 21 Q. Now, finally, the paragraphs under the heading, 22 "Memberships", I suggest to you that the official who was 23 in the yard and who gave the sales pitch was not 24 Dusty Miller. What do you say to that? 25 A. That was the first time I'd had seen that CFMEU rep or 26 even met that CFMEU rep. 27 28 Q. Which rep? 29 A. The shorter bloke that came, Johnny Lomax. 30 31 Q. In your statement you say that Dusty Miller and you 32 think Johnny Lomax came to the site to talk to GC's 33 employees and you say that this was in or around January 34 2014. What I am suggesting to you is that it wasn't 35 Dusty Miller? 36 A. Well, who was it? 37 38 Q. Well, I'd like you to tell us who it was. 39 A. The other CFMEU staff member that looks very similar, 40 similar height, similar hair. 41 42 Q. You have met Dusty Miller since then? 43 A. Yes, much later. 44 45 Q. I may have put this inaccurately earlier and 46 I apologise. I suggest to you that Mr Miller was not the 47 person who conducted the meeting that you have referred to


1 in paragraph 29? 2 A. Well, if it was someone else I accept that. 3 4 Q. Would you agree that there was a meeting in 5 Lysaght Street, Mitchell, that it was not a building site 6 but a large shed or factory where GC stored its equipment? 7 A. Yes. 8 9 Q. And that there was a meeting which concerned a new EBA 10 for CGS and that the purpose of the meeting was to discuss 11 the proposed EBA with the members? 12 A. Yes. 13 14 Q. That it was an amicable meeting? 15 A. True. 16 17 Q. And that during the course of the meeting nobody 18 complained about any aspect of it? 19 A. No. Nobody said anything. 20 21 Q. I suggest to you that people asked questions about the 22 EBA and the questions were answered? 23 A. There may have been a couple of minor questions but it 24 was very quiet. 25 26 Q. I suggest that no-one said that they did not want to 27 be a member of the CFMEU? 28 A. Correct. 29 30 Q. And no-one said that they were signing the 31 applications for membership under protest or because they 32 felt pressured to do so? 33 A. Correct, no-one said that then, no. 34 35 Q. I was wrong and incorrect when I put to you that it 36 was not Dusty Miller who attended the meeting and 37 I apologise for that. That was an error on my part. 38 Thank you. There is one more matter. Can you tell me 39 this, did CGS use labour hire from time to time? 40 A. No, we never use labour hire. 41 42 Q. Prior to giving your evidence and making your 43 statement, did you speak to the MBA about the substance of 44 your statement or similar matters to those touched upon in 45 your statement? 46 A. I've had no recent contact with the MBA. 47


1 Q. When you say "recent", have you had any contact with 2 the MBA about the matters which are the subject of your 3 statement, that is, the same sort of matters that are 4 referred to in your statement? 5 A. No, I don't believe I have, about the EBA, no. 6 7 Q. There's nothing in your statement about the issue of 8 whether any of the contractors discussed their charge-out 9 rates. Have you ever been asked about that? 10 A. Are you referring to collusion, as in keeping the same 11 prices that we charge contractors? 12 13 Q. Yes. 14 A. That's such a - that's so farcical. 15 16 Q. I am not suggesting to you that there was such 17 a conversation. 18 A. No, but -- 19 20 Q. What I am asking you about is this, I am pointing out 21 that there is nothing on that topic in your statement 22 and I am asking you whether you had ever been asked about 23 that topic before you made your statement? 24 A. No, I haven't. 25 26 Q. So the first time you were asked about it, that is, 27 the topic, was when you were in the witness box today and 28 my learned friend was asking you questions? 29 A. No. Well, I've been watching this on the screen 30 outside. 31 32 Q. That is the first you learnt of it? 33 A. Yeah. 34 35 Q. The first time you were asked about it was today when 36 you were in the witness box? 37 A. True. 38 39 MR AGIUS: Thank you, that is the examination. 40 41 THE COMMISSIONER: Thank you, Mr Agius. Anything further, 42 Mr Stoljar? 43 44 MR STOLJAR: No, Commissioner. 45 46 THE COMMISSIONER: Mr Lewis, you are excused from further 47 attendance on your summons. You can leave the witness box


1 now and leave the hearing room. Thank you for attending. 2 3 <THE WITNESS WITHDREW 4 5 MR AGIUS: There is a typographical error in the 6 Richard Lewis statement of objections. In paragraph 22, 7 the "22" is missing from the fourth objection. 8 9 THE COMMISSIONER: I see. It should say "22"? 10 11 MR AGIUS: Yes. 12 13 THE COMMISSIONER: I understand. 14 15 MR AGIUS: The other matter is we've been informed that 16 there will be a PD1 hearing before the Commission tomorrow, 17 starting tomorrow morning. We, without any disrespect, 18 would not propose to be here for that hearing. We will be 19 in Canberra but we will be engaged in dealing with the 20 three witnesses who have given evidence on a PD1 basis 21 earlier this week, in an attempt to comply with the order 22 that we provide our indication and hopefully our statements 23 by tomorrow afternoon. 24 25 THE COMMISSIONER: Yes. I think that is, with respect, 26 a very sensible allocation of resources and time. 27 28 MR AGIUS: May it please the Commission. 29 30 THE COMMISSIONER: You will be back, obviously, next week. 31 32 MR AGIUS: We will be back. 33 34 THE COMMISSIONER: 10am tomorrow? 35 36 MR STOLJAR: Yes, Commissioner. 37 38 THE COMMISSIONER: The hearing will resume at 10am 39 tomorrow morning. 40 41 AT 4.37PM THE COMMISSION WAS ADJOURNED TO FRIDAY, 17 JULY 42 2015 AT 10AM 43 44 45 46 47


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