transcript 10 june 2015 - …tradeunionroyalcommission.gov.au/hearings/... · web view1 ms...

ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION

Level 19, 55 Market Street, Sydney, NSW 2000

On Wednesday, 10 June 2015 at 1pm (Day 1)

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

Counsel Assisting: Ms Sarah McNaughton SC Mr Michael Elliott

Instructed by: Minter Ellison, Solicitors

.10/06/2015 CFMEU CBUS 1 Transcript produced by DTI

1 THE COMMISSIONER: Yes, Ms McNaughton? 2 3 MS McNAUGHTON: Thank you, Commissioner. 4 5 THE COMMISSIONER: We might take appearances in view of 6 the time which has passed since the last hearing involving 7 the CFMEU. Mr Slevin, you're for the CFMEU and various 8 others? 9 10 MR A SLEVIN: Yes. Just the CFMEU for this part of the 11 hearing, Commissioner. I continue to be led by Mr Agius. 12 He's just not available today. 13 14 THE COMMISSIONER: I see. So, those officials aren't 15 represented by you for the purposes of these days? 16 17 MR SLEVIN: The Cbus hearings. 18 19 THE COMMISSIONER: Yes. Right. Mr Game, you're for 20 Mr Parker? 21 22 MR T A GAME SC: Yes, Commissioner, with Mr B K Lim. 23 24 MR P BOULTEN SC: Commissioner, I am new. I appear for 25 Ms Zanatta. My name is Boulten. 26 27 THE COMMISSIONER: Very well. Thank you, Mr Boulten. 28 Ms Heath is here. 29 30 MS V HEATH: Commissioner, if I might have continued 31 authorisation to appear for Lis-Con and Mr O'Neill. 32 33 THE COMMISSIONER: Mr Morison, you're for Mr Fitzpatrick? 34 35 MR A MORISON: Yes, Commissioner. 36 37 THE COMMISSIONER: Anyone else? 38 39 MR P CRUTCHFIELD: Commissioner, for Cbus with Ms Coleman. 40 41 THE COMMISSIONER: Yes, Ms McNaughton. 42 43 MS McNAUGHTON: Thank you, Commissioner. In the hearings 44 beginning today, the Commission will continue its work from 45 2014 in relation to two case studies involving the CFMEU. 46 47 The first of these is what is known as the Cbus leak


1 to the CFMEU. As set out in the preliminary hearing on 2 23 April of this year, this issue was dealt with at some 3 length in the Interim Report handed down in December last 4 year and, in particular, chapter 8.3 of the Interim Report. 5 6 In 2013, senior employees of Cbus, the Construction 7 and Building Union Superannuation Fund, leaked certain 8 private information of members of Cbus to Mr Brian Parker, 9 now the former Secretary of the NSW Branch of the 10 Construction and General Division of the CFMEU. 11 12 The information was hand delivered to the Lidcombe 13 office of the CFMEU by Ms Lisa Zanatta. She was then the 14 Senior Adviser (Member Relations) Workplace Distribution. 15 Ms Zanatta did this with the knowledge and consent of at 16 least Ms Maria Butera who was, at that time, Executive 17 Manager, Workplace Distribution, at Cbus. 18 19 The Interim Report did not reach any conclusions about 20 the role of Mr Atkin, the Chief Executive Officer of Cbus, 21 to whom Ms Butera directly reported, and it also left open 22 questions in relation to Mr Parker. 23 24 These issues will be further explored in the current 25 hearings. 26 27 Since the 2014 hearings, a number of events have 28 occurred at Cbus. Both Ms Zanatta and Ms Butera have lost 29 their jobs. 30 31 A final report by KPMG in relation to leaks from Cbus 32 has been completed and a report has been provided to the 33 Board of Cbus and to the Commission. 34 35 A Governance Review, conducted by Mr Graeme Samuel AC, 36 former Chair of the Australian Competition and Consumer 37 Commission, as it is now known, and Mr Robert Van Woerkom, 38 has been completed, and a report has been provided to the 39 Board of Cbus and to the Commission. 40 41 In light of these and other developments, the 42 Commission will be conducting further investigations into 43 various questions. These include, as senior officers of 44 Cbus, how did Ms Butera and Ms Zanatta come to behave as 45 they did? Were they rogues within the organisation, or 46 were their actions authorised? Were their actions 47 indicative of the so-called culture at Cbus, especially the


1 culture within the Workplace Co-Ordinators Branch? What 2 steps should have been taken to prevent that behaviour from 3 occurring again and to preserve member privacy more 4 generally? 5 6 The KPMG and Samuel reports may assist in answering 7 these questions, as may the further examination of 8 witnesses. 9 10 The second of the two case studies to be dealt with in 11 the current hearings concerns dealings between certain 12 CFMEU officials, Mr George Alex, and executives working for 13 companies apparently associated with Mr Alex. This issue 14 was referred to in chapter 8.5 of the Interim Report. 15 16 Mr Alex, an undischarged bankrupt, appears to be 17 involved with labour hire companies and, more recently, 18 scaffolding, traffic control, and security companies. 19 20 The labour hire, traffic control and security 21 companies, provide casual labour to building contractors. 22 These companies have features consistent with their 23 operation as so-called phoenix companies. Features of 24 phoenix companies include the intentional transfer of some 25 or all of the assets from an indebted company to a new 26 company to avoid paying creditors, tax, and/or employee 27 entitlements. 28 29 The directors leave the debts with the old company, 30 often placing that company into administration or 31 liquidation, leaving no assets to pay creditors. 32 Meanwhile, a new company, often operated by the same 33 directors, or people associated with them, in the same 34 industry as the old company, continues the business under a 35 new structure. By engaging in this practice, the directors 36 avoid paying debts that are owed to creditors, employees, 37 employees' superannuation funds, and the like, and the ATO. 38 39 The CFMEU is on the record as opposing casual labour 40 and phoenix operators in the construction industry. It 41 publicly states it is concerned for workers whose 42 entitlements are put at risk. 43 44 An important avenue of inquiry has been why the CFMEU 45 has entered into enterprise bargaining agreements (EBAs), 46 with companies apparently associated with Mr Alex which 47 have such a poor track record of survival.


1 2 As was set out on 23 April this year, it was not 3 possible to complete an examination of these issues in 4 2014, for a number of reasons. These included the health 5 of Mr Alex last year. 6 7 At the resumption of this case study next week, it is 8 expected that a number of witnesses, including Mr Alex, and 9 officers of the CFMEU, or former officers, will give 10 evidence. 11 12 Thank you, Commissioner. There was also a 13 non-publication order that I would be seeking in the normal 14 terms in relation to personal contact details. 15 16 THE COMMISSIONER: Yes. You are propounding that as an 17 order which we will make in advance of any particular 18 document to which it might relate? 19 20 MS McNAUGHTON: Yes, indeed. 21 22 THE COMMISSIONER: Very well. Do you have a form of it 23 there? 24 25 MS McNAUGHTON: Yes, I do. If I could make that available 26 to you. 27 28 THE COMMISSIONER: Do you know if other legal 29 representatives have seen a copy? If not, I will read it 30 out. 31 32 MS McNAUGHTON: It is in the normal terms. 33 34 THE COMMISSIONER: Yes. Subject to any objection to this, 35 I direct that: 36 37 1. Pursuant to subsection 6D(3) of the 38 Royal Commissions Act 1902, none of the following 39 information which is referred to or adduced in evidence 40 during the hearing commencing on 10 June 2015 is to be 41 published or disclosed by any person: 42 43 (a) any personal information, including names, 44 addresses, telephone numbers or Cbus membership numbers, of 45 any current or former member. 46 47 The words in (a), Ms McNaughton, should say, "of any


1 current or former member of Cbus." 2 3 MS McNAUGHTON: Yes, indeed. 4 5 THE COMMISSIONER: And: 6 7 (b) Any telephone numbers of any person to this 8 direction shall remain in force unless varied or revoked by 9 the Commission. 10 11 I should say that if anyone notices, as we go through, 12 any document which may disclose any of this information and 13 thinks it desirable to draw the attention of those 14 following proceedings to this direction, it would be a good 15 idea to do so. Things are sometimes overlooked. 16 17 If there is no objection, I make that direction. 18 19 MS McNAUGHTON: If it please the Commission. If it is 20 convenient, I now call my first witness, Mr David Atkin. 21 22 THE COMMISSIONER: Yes, thank you. 23 24 <DAVID NEIL ATKIN, affirmed: [1.14pm] 25 26 <EXAMINATION BY MS McNAUGHTON: 27 28 MS McNAUGHTON: Q. Could you please give the Commission 29 your full name? 30 A. David Neil Atkin. 31 32 Q. And you're a resident of Victoria? 33 A. That's correct. 34 35 Q. You're employed by Cbus as the Chief Executive 36 Officer? 37 A. That's correct. 38 39 Q. Can I go to your background, if I may. Before working 40 in the superannuation industry, is it the fact that you 41 worked for a number of unions; is that right? 42 A. That's right. 43 44 Q. That followed on from an academic interest in unions; 45 is that right? 46 A. That's right. 47

.10/06/2015 CFMEU CBUS 6 D N ATKIN (Ms McNaughton) Transcript produced by DTI

1 Q. Indeed, your Masters thesis was in relation to the 2 Meatworkers Union in the 1950s? 3 A. That's right. 4 5 Q. Entitled "Aristocracy of Muscle: Meatworkers, 6 Masculinity and Trade Unionism in the 1950s"? 7 A. That's right. 8 9 Q. Following on from your academic work, you got a job, 10 did you, as a researcher at the Air Traffic Controllers 11 Union? 12 A. That's right. 13 14 Q. And then a job at Trades Hall in a workers 15 compensation policy role? 16 A. Yes. 17 18 Q. And then did you also have a role in the Finance 19 Sector Union? 20 A. That's right. 21 22 Q. What was your role there? 23 A. I was the head of the National Office. 24 25 Q. Was that the last union position you held? 26 A. That's right. 27 28 Q. Then what did you do? 29 A. Then I went to work as the Communications Manager for 30 STA, Superannuation Trust of Australia. 31 32 Q. What was your role there? 33 A. I was the Communications and Marketing Manager of that 34 super fund which was one of the precursor funds to 35 AustralianSuper. 36 37 Q. After that position, did you have a further position 38 in the superannuation industry? 39 A. Yes. I then went on to be the CEO of JUST Super, 40 which is the industry fund for actors and journalists. 41 42 Q. And then? 43 A. And then the CEO of Emergency Services and State 44 Super, and then was recruited to be the CEO of Cbus. 45 46 Q. Was that in 2007? 47 A. Recruited; started in 2008.


1 2 Q. What month in 2008? 3 A. January. 4 5 Q. It would be fair to say that it has been a difficult 6 year for Cbus? 7 A. It's been a difficult year for Cbus. It's also been a 8 very successful year for our members in terms of the 9 returns the fund has achieved for its members, but, yes, 10 it has been a difficult year. 11 12 Q. In relation to your 2014 Annual Report, that is, 13 ending in June 2014, was there any indication of any 14 difficulty in that report? 15 A. I don't have the report in front of me, so I can't 16 remember. 17 18 Q. Can I assist you. Can I in fact provide volume 4 of 19 the materials. This is not labelled 4, but it is called 20 "Policy Documents". 21 A. Thank you. 22 23 Q. If you would be kind enough to turn to tab 138. Can 24 you recall, sir, when this document was sent to the 25 printers? 26 A. In September. 27 28 Q. September 2014? 29 A. Yes. 30 31 Q. Any particular date? 32 A. I can't say to be certain. I think it was probably 33 early to mid-September, but I could be wrong. The content, 34 though, was being written in July and August. 35 36 Q. When that report went to the printers, Ms Maria Butera 37 was still part of your executive team? 38 A. That's right. 39 40 Q. That was reflected in the Annual Report; is that the 41 position? 42 A. That's right. 43 44 Q. Indeed, if you turn to page 1257 of this volume or 45 page 46 of the report, her photograph appears there as 46 Executive Manager, Workplace Distribution? 47 A. That's right.


1 2 Q. She was at that stage still a core and trusted member 3 of your team; is that right? 4 A. She was. 5 6 Q. Indeed, she had been there, according to the document, 7 the Annual Report, since 1997? 8 A. That's correct. 9 10 Q. So, was she one of your longest serving 11 executive members? 12 A. Yes, she was. 13 14 Q. In fact, the longest? 15 A. I think she would have been. There were a couple of 16 other longstanding ones, but they started perhaps one or 17 two years after Maria. 18 19 Q. And she had given you no cause for concern as at the 20 date of this Annual Report, had she? 21 A. Not in that reporting period. 22 23 Q. You can put that page to one side. Could you, while 24 we are there, also look at page 48 or 1259. Do you there 25 see the organisational structure set out? 26 A. Yes. 27 28 Q. There we have the Board at the top and we have an 29 arrow coming into the Board from Cbus Property. Can you 30 explain Cbus Property and its relationship to Cbus? 31 A. Cbus Property is a wholly-owned subsidiary of Cbus. 32 It has its own Board which is made up - which is chaired by 33 an independent chair, but it has appointees from the Cbus 34 Board on Cbus Property and, in addition, it has additional 35 independence on that Board. It has its own management and 36 Cbus Property has - reports its results and puts forward 37 its business plan to the Investment Committee of Cbus on an 38 annual basis, and it also has an investment management 39 agreement in place which is the usual contractual 40 arrangement with investment managers. 41 42 Q. Who are the directors in common between Cbus and 43 Cbus Property? 44 A. Steve Bracks, the Chair of Cbus, Anthony McDonald, the 45 Chair of the Audit and Risk Committee, Dave Noonan, who's 46 on the Investment Committee, and John Murray who's on the 47 Investment Committee.


1 2 Q. And then on this document on page 1259, under the 3 "Board", you have yourself as the CEO and then you have got 4 above the executive team, or is it part of the executive 5 team, the Governance Integration Manager. Who is that? 6 A. That's Robyn Wheatheley. She's not part of the 7 executive. She's not an executive, but she supports me and 8 the executive team. 9 10 Q. Is that the case with the Senior Adviser, Corporate 11 Affairs? 12 A. Correct. 13 14 Q. And also the Strategic Media Adviser? 15 A. Correct. 16 17 Q. The executive team, as at the date of the Annual 18 Report, was as set out on this page? 19 A. That's right. 20 21 Q. How often did your executive team meet formally at 22 this time, or perhaps I could say during the years of 2013 23 and 2014? 24 A. Fortnightly to monthly. It just depends on people's 25 availability, but in the main, it was on a fortnightly 26 basis. 27 28 Q. How often would you talk to members of your executive 29 team, if there was any particular pattern, in between those 30 fortnightly meetings? 31 A. Each executive has a regular fortnightly meeting 32 scheduled with me and then in addition there'd be regular 33 dialogue that I would have with my executive team through 34 that fortnight period as issues came up, and as they needed 35 to be dealt with. 36 37 Q. Each executive would meet by themselves? 38 A. With me. 39 40 Q. With you? 41 A. On a fortnightly basis. 42 43 Q. Where would that occur? 44 A. In one of the meeting rooms that's near my desk. 45 46 Q. Because it's otherwise an open plan office? 47 A. Correct.


1 2 Q. Would that be on one particular day? Would that be 3 diarised? 4 A. It's diarised. 5 6 Q. Would one day be set aside for you to meet each 7 person? 8 A. No. No, it's staggered through the week. 9 10 Q. What is the purpose of meeting with your executives in 11 that fashion? 12 A. To get an update from each of my executive about their 13 work programs, provide them with feedback, and just make 14 sure that each of their areas of responsibility they were 15 addressing appropriately. On an annual basis I've got a 16 work plan and a performance plan for each of the 17 executives, so it is a check in on activities in their 18 area. 19 20 Q. While we are still on the Annual Report, could you 21 turn back a few pages to page 45 which has your photograph 22 on it. Do you see there under "Remuneration Policy", there 23 is that heading. Do you see there: 24 25 Outside of the Executive, all Cbus staff 26 members are employed under one of the two 27 industrial instruments. 28 29 What does that refer to? 30 A. There are two enterprise agreements for staff in Cbus. 31 So there's the executives - the executive team are all on 32 individual contractual arrangements and then there is a 33 staff agreement which covers all the non co-ordinator staff 34 and that captures their terms and conditions, and there is 35 an enterprise agreement that captures the salary, the terms 36 and conditions for the co-ordinator staff. 37 38 Q. Are you able to say whether those two enterprise 39 bargaining agreements are equal in terms of terms and 40 conditions? 41 A. So there are - there's much commonality, but there are 42 some differences that reflect the nature of the work that 43 the co-ordinators do. So, for example, they're given a 44 tool-of-trade car, because they're needing to travel to 45 visit workplaces. They're often travelling to remote 46 areas. There's a clothing allowance there. So, there are 47 some differences that are related to the job role of the


1 co-ordinators. There's also a particular salary scale 2 that's relevant to the co-ordinator group based on 3 achieving certain qualifications and going up a couple of 4 increments as a result of achieving qualifications. 5 6 Q. What about leave entitlements and the like? 7 A. Yes, there are some leave differences. There's some 8 additional access to RDOs that co-ordinators have in that 9 agreement. 10 11 Q. Is it fair to say that there are better terms and 12 conditions for the co-ordinators than the other group? 13 A. No, I think that they're reflective of the differences 14 in the nature of the work that they do. One of the reasons 15 why there are additional RDOs is that it is reflective of - 16 more reflective of the building industry RDO cycles. We do 17 benchmark all of our roles in Cbus, including the 18 co-ordinator roles, to make sure that we are appropriately 19 remunerating and having appropriate terms and conditions 20 for each of the roles. I don't believe the terms and 21 conditions of the co-ordinator group are - that the rest of 22 the staff are not receiving the same benefits. The 23 benefits are different but, in combination, there are 24 things - there are conditions of employment in the 25 All Staff Agreement that don't apply to the co-ordinator 26 group. I would need to get out both of the agreements to 27 show you those differences, but then in combination I think 28 that they even themselves out in terms of the fund, making 29 sure that all of the staff are properly and fairly and 30 equitably remunerated and treated in terms of terms and 31 conditions. 32 33 Q. So, from your perception, there is no sense of 34 disquiet amongst the staff that the co-ordinators have a 35 better deal than the rest of the staff? 36 A. I think there's certainly commentary about the fact 37 that the co-ordinator group has their own agreement and it 38 means, you know, that there is a smaller number of people 39 who are covered by that agreement who get to negotiate, so 40 I think - with management. So there's definitely 41 commentary within the fund about that, but it's - from the 42 knowledge I have had about the way in which the staff view 43 management, the Best Places to Work Survey, which is an 44 independent survey that we do each year, that is not an 45 issue that's come up as a prominent concern of staff, that 46 the co-ordinators are on a different agreement. That is a 47 survey that's independently done so people can't be


1 identified, so they would be free to make those comments, 2 and it is not an overwhelming theme that has come through 3 to my knowledge. 4 5 Q. Is it the case that the co-ordinators are ex-CFMEU 6 employees or officials? 7 A. We certainly do employ co-ordinators from a CFMEU 8 background. Not all of our co-ordinators are from a CFMEU 9 background. 10 11 Q. What's the percentage? 12 A. It's probably about two-thirds. 13 14 Q. Is it the CFMEU who is the relevant Union that assists 15 in the enterprise bargaining for that agreement? 16 A. No. Each of the respective unions that have former 17 employees working at Cbus are named in the enterprise 18 agreement. So, the CFMEU are respondent - so the CFMEU -- 19 20 Q. You have two-thirds? 21 A. Yes. The CEPU, the AMWU and the FSU all are 22 respondents to agreement. That agreement is negotiated by 23 co-ordinator delegates, not from the head offices of 24 respective unions. 25 26 Q. From the Cbus side, who negotiates it? 27 A. It's the executive Manager. It depends on the 28 agreement, but the nucleus is the executive Manager for 29 Finance, the executive Manager for People and Culture, and 30 we've had the executive Manager for Workplace Distribution; 31 at times the executive Manager for Strategy and Operations, 32 and myself as CEO will get involved in those negotiations 33 at certain points but not - you know, my role has changed 34 over time. I've become less involved in those discussions 35 over the tenure at Cbus. 36 37 Q. When has your role started to diminish in that 38 respect? 39 A. In the last three years. 40 41 Q. We are now 2015, so since 2012? 42 A. Yes. 43 44 Q. Do you finally have to sign off? 45 A. Yes, I do. 46 47 Q. And that's --


1 A. Sorry, as does the - I mean, it also needs to go 2 through our governance arrangements within the Board 3 Committee structures. So it gets reported through to the 4 Remuneration Committee of the Board and then through to the 5 Board. 6 7 Q. What sort of cycle are these EBAs on in terms of 8 years? 9 A. Normally, they're three years. Last year we did a 10 one-year agreement. 11 12 Q. Why is that? 13 A. Because we were introducing so much change into the 14 organisation, we felt that we wanted to - we had plans to 15 in-source a number of new functions into the organisation 16 and we felt that the current remuneration structure needed 17 a better articulation of the different roles and the 18 classifications, we wanted to have a better career 19 structure that was obviously transparent and showed the 20 ability to move through the fund. 21 22 In addition, we needed to have a broader remuneration 23 structure that enabled us to bring - to capture the 24 appropriate pay, and terms and conditions, for servicing 25 staff. So the Trustee Office traditionally hasn't been the 26 major service provider to our members, that has been done 27 through our administrator, but we have been planning to 28 bring more of those functions into the Trustee Office and 29 we needed to have an enterprise agreement that reflected 30 the changing nature of the business. 31 32 Q. When did this change come about and what caused the 33 change to come about? 34 A. I don't understand your question, I'm sorry. 35 36 Q. You said that the one-year cycle was brought about by 37 changes within your organisation? 38 A. Yes. 39 40 Q. What caused those changes? 41 A. A recognition that the fund is in a highly competitive 42 environment. There is increasing regulatory change, 43 increasing demands from members as they age for new and 44 improved services and products. 45 46 Q. Can I just stop you there. Rather than a general 47 answer, could you be, if you're able to be, specific?


1 A. And also a highly competitive environment. So, 2 retention is a major issue for all of the sector. You want 3 to make sure that you are retaining your members in the 4 fund because you need to have the scale to provide the 5 services. If you lose members it makes the business harder 6 to run. So we believe that we had very strong brand, 7 loyalty from our members, a very strong member 8 satisfaction, but we needed to make sure that the service 9 delivery matched the expectations of our members and that's 10 the change that led to us saying we want to build an 11 organisation that brought those functions in-house and so 12 management could have more control over the service 13 delivery to our members, as opposed to working through a 14 service provider. 15 16 Q. Was there any particular incident which caused this 17 change to come about? 18 A. No. It was a - it was a reflection of the strategic 19 landscape that we operated in and assessment made by the 20 Board and management that we needed to evolve the business 21 model of the organisation, to make sure that we stayed a 22 successful fund. 23 24 Q. You say there was no particular incident or situation 25 which arose which caused -- 26 A. Unless you can prompt me, not to my memory. 27 28 Q. Was there any issue arising from problems with Grocon 29 and Myer Emporium and Cbus Property? 30 A. That led to the change that I've just discussed? 31 32 Q. Yes. 33 A. Absolutely not. 34 35 Q. It had nothing to do with it? 36 A. No. 37 38 Q. Was there any problem arising out of those companies 39 and issues? 40 A. Sorry, could you ask the question again? 41 42 Q. Was there any problem arising out of an issue 43 involving Grocon and Cbus Property? 44 A. Well, it has been well reported that the building 45 unions were unhappy that Cbus Property had provided a 46 contract to Grocon for a particular development, so that 47 was - there was a lot of discussion in the media about


1 that. Subsequent to that, the Victorian building unions 2 then undertook a public tender where the fund was asked to 3 resubmit its credentials against a competitive tender 4 process. We went through that tender process and the 5 Victorian building unions reconfirmed their selection of 6 Cbus to be their default fund. 7 8 Q. When was that? 9 A. That was - that whole process was 2012 through to 10 2013. 11 12 Q. Did either or both Ms Butera and Ms Zanatta have any 13 special role in the resolution of that issue? 14 A. They both played very important roles in assisting the 15 fund resecure that arrangement where Cbus remained the 16 default fund for Victorian construction unions, so there 17 was a lot of interaction both Maria and Lisa had in 18 assisting put together the tender and in communicating with 19 the process. 20 21 Q. You say that that issue of a potential for the 22 building unions to withdraw their business from your 23 organisation had nothing to do with your restructure within 24 your organisation? 25 A. None whatsoever. 26 27 Q. To your perception, did it place any additional 28 pressure on your organisation in terms of its cooperation 29 with the CFMEU? 30 A. That process was, in our minds, a healthy one. 31 Sponsoring organisations have got a right at any point to 32 test the marketplace. We were very confident that Cbus was 33 the best offering for construction workers nationally. We 34 submitted our credentials. We were very confident that in 35 articulating the way in which we serviced the industry, and 36 our plans for the future that we had already been working 37 on, would lead to us retaining our credentials as the 38 default fund. 39 40 Q. Would you be kind enough to look at volume 2, if we 41 could have that provided to you, of the materials, and turn 42 to about nine-tenths of the way through of the bundle at 43 80A. 44 A. 80A? 45 46 Q. Yes. Do you see there the "CFMEU Worker" front page? 47 A. Yes.


1 2 Q. And then the next page, page 658-2, do you see there 3 an article "CFMEU & Cbus now look to the future together"? 4 Do you see that? 5 A. Yes. 6 7 Q. It says there - well, first of all, there is a 8 photograph of a number of people, including yourself; is 9 that right? 10 A. That's right. 11 12 Q. Mr Setka, Mr Spernovasilis, Mr Gardiner, Ms Zanatta 13 and yourself? 14 A. That's right. 15 16 Q. 17 All close relationships have a rocky 18 period, but the partners can come out of a 19 tiff stronger for it. 20 21 The CFMEU is confident this is the case 22 following our recent review of the service 23 provided by Cbus. 24 25 Do you see that? 26 A. Yes. 27 28 Q. 29 Unions founded it. 30 31 When Cbus was formed in 1984, it stood for 32 Construction and Building Unions 33 Superannuation. It was the first industry 34 fund, and paved the way for super to become 35 a right of every Australian worker. 36 37 As the fund has grown - it now manages 38 $23 billion for over 700,000 members - it 39 has of course had to expand its staff and 40 bring in lots of people with financial 41 expertise. 42 43 And then it says this: 44 45 But what those running Cbus have to 46 remember is that unions are the heart of 47 the fund. We sign companies to EBAs which


1 guarantee that Cbus contributions continue 2 to flow. When employers are in arrears, or 3 go broke owing money to Cbus, it is unions 4 who chase it up. 5 6 Do you see that? 7 A. Mmm-hmm. 8 9 Q. Does that indicate to you that the Union was in fact 10 putting pressure on Cbus? 11 A. Well, that's an opinion of the Union. That's their 12 right to have their opinion. Cbus is an industry fund 13 which means that it's connected back to its industry and 14 it's connected back to the sponsoring organisations who 15 have views, they submit those views, and it's the role of 16 the Cbus Board and the Cbus management to work through 17 those views, to come up with an appropriate response. 18 19 Q. The article continues: 20 21 Concerns led to review. 22 23 Late last year, Victorian construction 24 unions became concerned that Cbus had lost 25 touch with this reality, and investigated 26 whether other super funds could offer a 27 better service. 28 29 After much consideration, we have decided 30 to stick with Cbus. CFMEU Secretary 31 John Setka believes it was necessary to put 32 Cbus under the microscope. 33 34 So that indicates, does it not, Mr Atkin, some real 35 pressure being put on Cbus in order to retain the business 36 of the building workers? 37 A. Well, clearly the unions had a view that they wanted 38 to test the market, they wanted to test our credentials 39 against the market. We were very happy to do that because 40 we were very confident that we had a fit-for-purpose 41 industry fund nationally for the industry. 42 43 Q. What were the financial ramifications should the CFMEU 44 pull out their members from Cbus? 45 A. Look, it's hard to be precise, but what I can say is 46 that from our analysis, if the CFMEU changed its 47 association with the fund, that that would be somewhere


1 between 15 to 20 per cent of our inflows. It would impact 2 between 15 to 20 per cent of our inflows. 3 4 Q. That's all? 5 A. From the analysis that I had undertaken by my team 6 internally, that's what their analysis identified. 7 8 Q. And two-thirds of your co-ordinators team are 9 ex-CFMEU? 10 A. That's right. 11 12 Q. Would that have an impact as well? 13 A. Which? What? 14 15 Q. Should CFMEU pull out of the business, did you see any 16 potential ramifications for your staff? 17 A. Well, the co-ordinators are required to operate in all 18 of our workplaces and across different trades and different 19 crafts. We clearly did not want to lose the support of the 20 Victorian building unions and of the CFMEU, but if that had 21 happened, our co-ordinator staff would still have been able 22 to perform their roles as required. 23 24 Q. This testing of the market by the CFMEU, did that 25 occur at any other time or was it just after the Grocon 26 issue arose? 27 A. Formally, that's the only time in my tenure at Cbus. 28 29 Q. If I could return to the article, in the second column 30 it goes on: 31 32 To improve relations between Cbus and its 33 union partners, a Building Industry Group 34 Consultative Forum has been set up. This 35 will address issues that are important to 36 us, including: 37 38 . holding of an Annual General Meeting 39 40 . encouraging Australian products and 41 services 42 43 . ensuring that contracts entered into meet 44 the highest OHS standards 45 46 . giving members more investment choices, 47 including ethical investment options


1 . reducing admin fees paid by retired 2 members receiving a Cbus pension. 3 4 Their commitment to these improvements will 5 be monitored over the next 12 months. 6 7 Those concessions were gained by the CFMEU from Cbus? 8 A. I wouldn't call them concessions. They were issues 9 that were important to the building industry group, and we 10 were more than happy to develop our thinking. We had 11 already been contemplating a number of these issues that 12 were there and it was a matter of us explaining to the 13 building unions our plans for advancing these areas that 14 have been identified in that article and them gaining a 15 better understanding, and when we went through that, they 16 were satisfied that we were addressing the concerns that 17 they were raising with us. 18 19 Q. It goes on to express the view that they've never had 20 any problems with the team of Cbus co-ordinators which is 21 now headed by Lisa Zanatta? 22 A. Mmm-hmm. 23 24 Q. It's also pleased, says this article, that long time 25 fund employee Danny Gardiner has been appointed by 26 Cbus Property as its senior liaison officer. Was that a 27 concession sought by the CFMEU that he be appointed? 28 A. No. 29 30 Q. Do you know why that's mentioned in this article? 31 A. Well, I think Danny had a very strong reputation 32 amongst the building unions. Danny was retired at that 33 point and I think the fact that Danny had been employed by 34 Cbus Property was seen as a positive thing to tell members. 35 36 Q. What was his job before he retired? 37 A. He was the manager responsible for the workplace 38 co-ordinators. 39 40 Q. Was he ex-CFMEU? 41 A. Yes, he was. 42 43 Q. And a member of the CFMEU, to your knowledge? 44 A. To my knowledge, yes, that's right. 45 46 Q. Were all the co-ordinators, to your knowledge, members 47 of the CFMEU?


1 A. No. 2 3 Q. Were the ones who were ex-CFMEU officers, the 4 two-thirds that you mentioned, to your knowledge, members 5 of the CFMEU? 6 A. To my knowledge. I've never seen, though, their 7 actual membership, but that's not something that I would 8 see. 9 10 Q. Can I now turn to the board of Cbus. What sort of 11 contact do you have - and can I put a timeline on this. Up 12 to the publication of the Annual Report that you've seen, 13 so September 2014, what sort of contact did you have with 14 members of the Board, if you are able to give a general 15 pattern? 16 A. Well, it's cyclical. It depends on the cycle of 17 meetings. So there's a Board meeting bi-monthly. There 18 are investment committees monthly. There are audit and 19 risk and member services and marketing committees 20 bi-monthly or quarterly. Whenever there was a formal 21 meeting, there would obviously be contact around that, 22 around those times, and then through the year, depending on 23 what issues came up - I mean, for example, there's a lot 24 more engagement with the directors as we are developing the 25 business plan, which is early on in the calendar year, so 26 it depends on what period you're talking about. There 27 could be periods when I don't have a lot of contact with 28 directors when there isn't a meeting cycle, for example. 29 30 Q. You have been talking about directors collectively. 31 Up until September 2014, was it your practice to deal with 32 all of the directors in this cyclical fashion, or did you 33 only need to deal with some of them? 34 A. I dealt with all of them as they sought to have 35 contact or briefings from me. If there was a director that 36 was interested in a particular issue, or had a particular 37 area of expertise, or had a particular role on a committee 38 or - you know, then I would make sure that there was 39 regular communication. It just depends. It depends on the 40 issue, the circumstance. But my philosophy has always been 41 to be very open, to engage with directors, and to be very 42 responsive to what their questions and, you know, lines of 43 inquiry would be and to provide them with the information 44 that I could. 45 46 Q. Did you have any particular regular contact, for 47 example, with Mr Noonan?


1 A. Of course I would. He's the National Secretary of the 2 CFMEU, he's on the Investment Committee, so yes, as I would 3 William Harnisch on an equal basis, who is the CEO of the 4 MBA. So those two organisations are two very important 5 shareholders within the fund. So I had regular contact 6 with Dave, as I had regular contact with William. 7 8 Q. In terms of the contact you had with Dave Noonan, did 9 that centre around a forthcoming meeting or the like? For 10 example, if a meeting was to come up involving Mr Noonan 11 being on a particular subcommittee -- 12 A. It could. Yes, it could. It could. If there was a 13 particular complex issue or there were some issues that 14 required further explanation, then that would be a normal 15 thing for me to do, is to talk to Dave about those issues, 16 particularly those related to the Investment Committee 17 which he was an active member of and -- 18 19 Q. For how long? 20 A. How long? 21 22 Q. He had been active on the Investment Committee? 23 A. Well, for at least the period that I have been there 24 which is, I think, coming up to eight years. 25 26 Q. Is it your practice to make notes of conversations 27 with directors? 28 A. No. 29 30 Q. Never? 31 A. Very rarely. 32 33 Q. What about SMS contact? 34 A. Sorry? 35 36 Q. Would you have SMS contact? 37 A. Sorry, texts. Pardon me, yes. 38 39 Q. Sorry. Have you sent messages to directors via SMS? 40 A. Occasionally, but not - you know, not - that's not - 41 the normal communication would be via phone. That would be 42 - you know, that would be the usual way of communicating. 43 44 Q. Last year you were asked about an email which I think 45 was called colloquially the "around the world" email. Do 46 you remember questions about that? 47 A. Was this to do with one of the Lis-Con releases?


1 2 Q. Yes. Can I show you volume 1 of the materials and ask 3 you to turn to tab 7. Do you recall seeing this document 4 before, which is in the habit of printed out emails, so it 5 is in reverse chronological order? Do you see that? 6 A. I see the - I can see that, yes. 7 8 Q. It begins, just to refresh your memory, at page 36, 9 the bottom right-hand corner, halfway down the page, from 10 Andrew Grabski -- 11 A. Yes. 12 13 Q. -- ifcc.com.au to Lisa Zanatta. Do you see that? 14 A. Yes. 15 16 Q. And various other people are copied into that. Then 17 do you see immediately above it is forwarded from 18 Lisa Zanatta to Jade Ingham, Queensland CFMEU? 19 A. Yes. 20 21 Q. Can we turn back to page 35, and it is forwarded from 22 Jade Ingham, Queensland CFMEU, to Mr Ravbar of the 23 Queensland CFMEU? 24 A. Yes. 25 26 Q. Then, do you see that it is forwarded to Dave Noonan 27 from Michael Ravbar? 28 A. I can see that. 29 30 Q. At 8.35 that occurred. Do you see that? 31 A. Yes. 32 33 Q. Do you see that at 11.18, immediately above, it is 34 forwarded from Dave Noonan to you? 35 A. Mmm-hmm. 36 37 Q. It has got no message with it, do you see that? 38 A. Yes. 39 40 Q. Then, above that, you forward it on to Maria Butera? 41 A. Yes. 42 43 Q. You do leave a message with that email: 44 45 Maria, 46 Could we touch ... 47


1 It should be "touch base about this, please."? 2 3 A. "Base about this" yes. 4 5 Q. And then it would appear that Maria Butera forwards it 6 to Cath Noye. Cath Noye is - formally speaking, is she 7 supervised by Maria Butera? 8 A. Yes. 9 10 Q. And she is senior to Lisa Zanatta? 11 A. That's right. 12 13 Q. You recall, of course, this being 28 June, that 14 Lis-Con was a topic of discussion between Cbus and CFMEU 15 representatives around this time? 16 A. Mmm-hmm. 17 18 Q. That was June and July 2013? 19 A. Mmm-hmm. 20 21 Q. There was communication on this issue at the most 22 senior of levels, would you agree with that? 23 A. Yes. 24 25 Q. Including between you and Mr Noonan? 26 A. Yes. 27 28 Q. And between you and Mr Parker? 29 A. Yes. 30 31 Q. I think you have previously agreed that it is unusual 32 for the interaction to be at this level about particular 33 accounts? 34 A. That's right. But I should say that arrears 35 management is not - I mean, that's not an unusual part of 36 the fund's responsibilities, but you're right, I have said 37 at previous hearings that that was unusual. 38 39 Q. Not only was it a topic of conversation in June and 40 July, but also in early August 2013 there were formal 41 complaints by way of solicitors' letters about the leakage 42 of information; is that right? 43 A. That's correct. 44 45 Q. And then in the following year, in May 2014, that is 46 last year, there were press reports saying that Lis-Con 47 details had been leaked by Cbus to Parker?


1 A. Mmm-hmm. 2 3 Q. Mr Parker. And then, of course, the Commission 4 commenced hearings into this topic in July last year? 5 A. That's right. 6 7 Q. The topic has been cropping up at a high level, such 8 that it would involve you, for a good period of time? 9 A. Yes. 10 11 Q. In 2014, you had, did you, a reasonably good memory of 12 your involvement in the discussions concerning Lis-Con that 13 took place between you and CFMEU representatives and Cbus 14 representatives in the 2013 period? 15 A. So, as I've said in the previous two appearances I've 16 made at the Royal Commission, I have clearly a memory of 17 contact. I don't have precise memory about some of the 18 discussions that occurred and I've done my very best to 19 provide the Commission with my memory of those discussions. 20 21 Q. Do you remember on 23 October last year, you gave 22 evidence to the Commission about a call you had with 23 Ms Zanatta on a Friday afternoon? 24 A. Yes. 25 26 Q. You answered that very quickly, so you remember that 27 well? 28 A. Yes, I do. 29 30 Q. It was about a six minute call on Friday, 26 July; is 31 that right? 32 A. Yes. 33 34 Q. You're now of course aware that it was that afternoon 35 that arrangements were made for Ms Zanatta to travel to 36 Sydney on the following Monday? 37 A. I'm now aware of that, that's correct. 38 39 Q. You said last year that you could specifically 40 remember that conversation and what it was about? 41 A. Yes, because of the context of that conversation which 42 was - it was a Friday afternoon, I dropped my daughter off 43 at Greek school, it was unusual to be contacted by Lisa, so 44 I can remember sitting in the car and having that 45 conversation. 46 47 Q. It was a routine matter, according to you, is that


1 right, that was being discussed? 2 A. It depends what your definition of "routine" means. 3 It was a discussion about a dialogue that Lisa and Maria 4 were having with the Queensland Branch of the CFMEU and the 5 fact that they were seeking one of our co-ordinators, who 6 is an honorary official of the CFMEU, to attend a 7 particular meeting. So Lisa was briefing me on that and 8 the discussions that they'd had, and the fact that we 9 were - we'd already made extensive arrangements as part of 10 his induction, Andrew's induction, the co-ordinator, to 11 attend a week events in Victoria, and so in case I got a 12 call, I was to know that and to be able to respond that we 13 wanted Andrew to attend our induction week. 14 15 Q. So that was a call of about six or eight minutes - a 16 lengthy call, yes? 17 A. Six to eight minutes, if you call that lengthy, yes. 18 19 Q. Ms Zanatta was not a senior executive, was she, she 20 was not even the next level down, she was two levels down? 21 A. No, that's right, but it was explained to me that the 22 reason why Lisa was calling me was because Maria was - who 23 would be normally the person who would talk to me about 24 those types of things, was making her way to a function and 25 so was unable to talk to me. So, she'd asked Lisa to brief 26 me. 27 28 Q. But, in any event, that was a relatively routine 29 matter that didn't subsequently lead to any solicitors' 30 letters, or receive any attention in the press; that's 31 right? 32 A. Correct. 33 34 Q. Just as a minor issue, the person in relation to whom 35 you were discussing induction wasn't in fact a brand new 36 representative of Cbus, was he, he had been around since 37 about 2011 or 2012? 38 A. I'd need to check that. My memory was that he was a 39 recent appointment and we - the team - thought that 40 particularly given he was working remotely in northern 41 Queensland, that he would be advantaged being brought down 42 to Melbourne and being able to experience working with 43 other co-ordinators to assist him in his role. 44 45 Q. So you have a clear memory he was a recent 46 appointment? 47 A. That's my memory.


1 2 Q. Are you sure about that? 3 A. I'd need to check. The fact that you're asking 4 suggests that maybe it wasn't within the last month or two 5 of his appointment, but my memory was that he was a recent 6 appointment. You know, maybe it was 12 months in, but I'd 7 still call that a recent appointment. 8 9 Q. That was July. Can I ask you to think the month 10 before, in June 2013. Did you have any particular reason 11 to be talking to Mr Noonan in the middle of June or towards 12 the end of June 2013? 13 A. There would be many reasons why I would need to talk 14 to Dave around that period. 15 16 Q. Can you say what those reasons were? 17 A. Well, there would be Investment Committee members; 18 there would be business plans that were being put up. 19 Clearly the fact that we were - I think from around then, 20 we were coming to the conclusion around the tender process 21 with the building unions would have been something that we 22 would have been discussing. There are a multitude of 23 things that we could have been discussing. 24 25 Q. In the last week of June, looking at that email that 26 I have shown you at page 35 where Mr Noonan forwards you an 27 email without any courtesy message, no "Kind regards", not 28 "FYI", nothing -- 29 A. That's not uncommon. 30 31 Q. -- would you agree that there must have been some sort 32 of conversation prior to the sending of that email? 33 A. There may be, but I have no memory of that. 34 35 Q. Are you sure about that? 36 A. I've got no memory of it, but I can't say that we 37 didn't - I mean it would - sorry, I think there's an 38 assumption here that if David - Dave sent me that, there 39 possibly would have been a conversation, but I don't 40 remember what that conversation was. 41 42 Q. Are you able to say from the general nature of your 43 longstanding relationship with Mr Noonan if you would have 44 had a short conversation or a long conversation, or can't 45 you say? 46 A. It would be short. 47


1 Q. Yes. It would be short. Can I show you this bundle 2 of documents, please. I am showing you a folder labelled 3 "Cbus Telephone Records Chronology". We haven't yet made 4 that available to the other parties, but can I just ask 5 you, please, to turn to page 5. Do you see halfway down 6 the page there are records, if you'd accept from me, that 7 accurately reflect telephone calls between, amongst other 8 people, you and Mr Noonan or SMS messages? Do you accept 9 that from me? 10 A. Yes. 11 12 Q. The first one, halfway down the page, 28 June 2013 at 13 9.54am, there's an SMS from you to Mr Noonan. At 11.02am, 14 do you see a call from Mr Noonan to yourself? 15 A. Yes. 16 17 Q. And the records will show - and we will have those 18 available in due course - a call of just under 14 minutes 19 in length. And then a further call at 11.16am from 20 Mr Noonan to yourself of 89 seconds, so over a minute, and 21 at 11.18am, so it would appear to be almost immediately 22 after the conclusion of those two calls, which would appear 23 to be pretty much back to back, there is the forwarding of 24 the email from Mr Noonan to yourself? 25 A. That makes sense. 26 27 Q. Would you call a call of almost 14 minutes in length a 28 short call? 29 A. No, but - see, again, it depends on what was going on. 30 Dave and I would have short conversations mostly, but we 31 would have lengthy conversations where I would cover a 32 number of matters. It's highly likely - I can't remember 33 this conversation, but it is highly likely that there would 34 have been four or five different issues that I would have 35 been briefing Dave on. 36 37 Q. But see the chronology there. An almost 14 minute 38 call, starting at 11.02am, takes us to 11.16am. The next 39 call is starting at 11.16am and a few seconds going to very 40 close to 11.18am, and then the forwarding of the email at 41 11.18am. Would you agree that you must have been talking 42 about the issue in the email? 43 A. Well, I think that's a reasonable conclusion to make 44 but I don't have a memory of that, so I can't tell you that 45 that's what happened, but I understand why, you know, that 46 looks the case. 47


1 Q. But Lis-Con, which this email concerned, was, as we 2 discussed, a hot topic around this time? 3 A. Well, it depends on what your definition of what a hot 4 topic means. 5 6 Q. It would have been a topic of some regular discussion 7 around June, July and August 2013? 8 A. Well, it was clearly a point of discussion here and it 9 was clearly a point of discussion later on. 10 11 Q. Also in August 2013? 12 A. That's right. 13 14 Q. When you got complaints; is that right? 15 A. Yes. 16 17 Q. You didn't recall, even back then, whether or not 18 you'd had a conversation of some length with Mr Noonan 19 leading to the forwarding of an email in relation to 20 Lis-Con? 21 A. That's right, I don't. 22 23 Q. And that's your honest answer? 24 A. That's correct. 25 26 Q. Are you aware of whether or not there was a CFMEU 27 meeting, just immediately preceding 28 June, of some days? 28 A. No. 29 30 Q. Could you turn to tab 6, please, in your first volume 31 there. Do you have that available? It is the same one 32 where that email that you have just been looking at is. It 33 is just the previous tab. 34 A. Oh, sorry. 35 36 Q. I'm not suggesting that you have necessarily seen this 37 document before, but do you see it is headed: 38 39 Minutes 40 CFMEU Construction & General Divisional 41 Executive Meeting 42 25-27 June, 2013 43 44 A. Okay, yes. 45 46 Q. Amongst the participants there are included 47 Mr Noonan - do you see that at the top?


1 A. Yes. 2 3 Q. A few entries down Ms Mallia? 4 A. Yes. 5 6 Q. A few more entries down, Mr Fitzpatrick - 7 Brian Fitzpatrick? 8 A. Yes. 9 10 Q. A few entries further down, Brian Parker? 11 A. Yes. 12 13 Q. And then a few entries further down Michael Ravbar? 14 A. Yes. 15 16 Q. Plus all the other people reflected there. Did you 17 know that at the time, that there was a meeting? 18 A. No, not that I have a memory of. I don't know what 19 the schedule of the CFMEU executive meetings are. 20 21 Q. Do you recall the evidence of Mr Fitzpatrick who said 22 that the issue with Lis-Con was discussed during the course 23 of this meeting? 24 A. I've got a memory of that. 25 26 Q. And that he said, although it was his words, that it 27 was discussed that there would be a war on Lis-Con? 28 A. I remember that being reported. 29 30 Q. If one wants to use another phrase, perhaps an 31 industrial campaign against Lis-Con? 32 A. That's the way it has been described as I've - as it 33 has been reported. 34 35 Q. Is it the case, can I ask you, now that you have seen 36 this document, that Mr Noonan discussed with you during the 37 lengthy phone call on 28 June, the very next day, matters 38 concerning an industrial campaign against Lis-Con? 39 A. As I said, I don't have a memory of that conversation 40 in terms of this matter being discussed. That's not to say 41 it wasn't raised, but I doubt that it was described as an 42 industrial campaign in the discussion that I had with Dave, 43 because that's something I would remember, but I don't 44 remember that discussion. 45 46 Q. When you were first asked on 3 October 2014 about 47 whether or not you'd had a discussion with Mr Noonan prior


1 to the sending of this email to yourself from him, you said 2 that you had had no discussion with him - do you recall 3 that? 4 A. I'll take -- 5 6 Q. Would you like to see the transcript? 7 A. No, I'll take your word for it. 8 9 Q. It's the transcript from 3 October 2014 at page 774 at 10 line 33. 11 A. Yes, I accept what you're saying. 12 13 Q. We'll just bring it up. To put the questions fairly 14 before you, sir, starting at line 22 - and we can put 15 further of this if you require it: 16 17 Q. Did someone tell you that they wanted 18 you to collect records about Lis-Con to 19 provide to the CFMEU? 20 A. No. 21 22 Line 26: 23 24 Q. Well, that's what you were doing with 25 forwarding this email, weren't you? 26 A. I forwarded this email to my 27 executive manager to ask her, and we had a 28 subsequent conversation, I think, where 29 I would have asked her to follow up what 30 the inquiry was about. 31 32 Line 33: 33 34 Q. You didn't have any discussion with 35 Mr Noonan? 36 A. No. 37 38 Do you see that? 39 A. That's right. 40 41 Q. So that wasn't "I can't remember", that was a definite 42 "no" - do you see that? 43 A. Yes. 44 45 Q. When you came back to give evidence on 23 October 46 2014, at page 844, line 22 -- 47 A. Sorry, which line?


1 2 Q. Line 22. You were being asked about this issue again? 3 A. Yes. 4 5 Q. Line 18: 6 7 Q. Who else did you have conversations 8 about Lis-Con with? 9 A. With Brian Parker. There was an email 10 that was sent to me by Dave Noonan from the 11 CFMEU in relation to Lis-Con arrears, so 12 there was a question around that. I don't 13 have a specific memory of speaking to Dave 14 about that email, but I suspect I would 15 have had a discussion with him. 16 17 Do you see that? 18 A. Mmm-hmm. 19 20 Q. And then later on that same day, page 870, line 8, do 21 you see the question: 22 23 Q. Did you have any conversation with 24 Mr Noonan as to why he was copying you in 25 on this correspondence? 26 A. I would have. I have no memory of the 27 conversation, though. 28 29 So, would you agree that between 3 October and 23 October, 30 your evidence about this issue did change? 31 A. Well, clearly, based on the transcripts, that's the 32 case and, as I've said, I - but I don't have a memory of 33 the conversation but I think when you go through and look 34 at, you know, more forensically the emails, and as we've 35 just done today, as you've identified the phone calls, it's 36 reasonable to assume that there was a conversation that was 37 had, which I've subsequently said. 38 39 Q. Why did you say, when you were first asked on 40 3 October, when you were also under oath, that you did not 41 have a conversation? 42 A. Well, that was my memory at the time, but then as you 43 try and piece the information together further, you know, 44 it's reasonable to assume that a conversation was had even 45 though I can't remember what that conversation was. 46 47 Q. Did you talk to anyone about this issue between


1 3 October and 23 October? 2 A. No. No. 3 4 Q. You didn't talk to Mr Noonan, for example? 5 A. Definitely not. 6 7 Q. Did you check your phone records, for example? 8 A. Not to - no, I don't think so. But that's not to say 9 we didn't because there's an awful lot that's happening in 10 this period, so there's a lot of material that we've seen, 11 that we have been going through. I can't say definitely 12 yes or no, whether we went through records - phone records. 13 14 THE COMMISSIONER: Q. It is important to be precise 15 about this. You said you didn't speak to anyone between 16 3 October and 23 October about this matter? 17 A. Not to my memory, that's right. 18 19 Q. I am not going to ask you what you said to your 20 lawyers, if you spoke to your lawyers. I just want to put 21 it to you that it would be strange if you hadn't spoken to 22 your lawyers about it, wouldn't it? 23 A. So I don't have - I don't have a memory of talking to 24 my lawyers about it. That's not to say that we didn't. 25 I can say definitely that I did not speak to anyone outside 26 my legal team about the Royal Commission proceedings and in 27 relation to my evidence between October 3 and October 23. 28 29 THE COMMISSIONER: Very well. 30 31 MS McNAUGHTON: Q. Can I move on to a different topic 32 now; I touched on it earlier. In August, there were 33 complaints from Lis-Con. You heard about those complaints 34 in a number of ways; is that right? 35 A. Yes. 36 37 Q. Moving to volume 2, we will provide that to you, would 38 you be kind enough to turn to tab 47. 39 A. 47. 40 41 Q. Do you see there an email chain starting at page 397? 42 A. Mmm-hmm. 43 44 Q. Behind which there is a letter on the letterhead of 45 Cleary Hoare Solicitors dated 1 August 2013 and addressed 46 to yourself? 47 A. Yes.


1 2 Q. They act on behalf of Lis-Con, and you would have seen 3 that letter, no doubt, in detail on other occasions; is 4 that right? 5 A. Yes. 6 7 Q. Going back to 397, it is apparent from the email chain 8 that that has been sent from Cleary Hoare, solicitors, 9 through to Cbus inquiries, this is right at the bottom of 10 the page, was copied to yourself? 11 A. Yes. 12 13 Q. And then you've sent that on through to Maria/Angela 14 or have attempted to, it would appear, although you 15 actually only put in the email address of Maria Butera? 16 A. I think from memory I then - there's a subsequent 17 email that I then sent the same material to Angela. 18 19 Q. That's Angela Thurstans? 20 A. Thurstans, yes. 21 22 Q. It's apparent from the document that Maria Butera has 23 sent it through to Lisa Zanatta at 5.17pm? 24 A. Yes. 25 26 Q. There is also another way that your attention was 27 brought to this issue at tab 57. Do you see there, there's 28 again an email saying, pages 528-529, behind which there is 29 a letter also dated 1 August 2013 -- 30 A. Oh, yes. Yes. 31 32 Q. -- on the letterhead of Cleary Hoare. This one is 33 addressed to Mr David Noonan, National Secretary, CFMEU? 34 A. Yes. 35 36 Q. Do you see that? 37 A. That's right. 38 39 Q. If one compares the two letters, they're in slightly 40 different terms. At page 530, at paragraph 5, do you see 41 there: 42 43 Subsequent to this serious breach, a number 44 of our client's workers have been contacted 45 from telephone numbers that originate in 46 Bowen Hills. Our client's workers report 47 they have been threatened and intimidated


1 by CFMEU officials. 2 3 A. I can see that. 4 5 Q. And that particular part was not in any way included 6 in the letter to you back at 399? 7 A. Right. 8 9 Q. Back at tab 57, do you notice that that had been 10 forwarded from Greg Troedson to Andrea Grivas who is, 11 I think, the Personal Assistant to Mr Noonan? 12 A. Yes. 13 14 Q. Instead it says as Executive Assistant she forwards 15 that to you at 10.44am on 2 August; do you see that? 16 A. Yes. 17 18 Q. You forward it through to Maria Butera, 19 Angela Thurstans and Lisa Zanatta at 10.47am on 2 August 20 2013? 21 A. Yes. 22 23 Q. So you've now had your attention drawn to this problem 24 in two ways? 25 A. Yes. 26 27 Q. That point 5 part of the letter that I drew your 28 attention to, did that concern you when you saw that? 29 A. Well, it's quite possible that at the time that we 30 received both, that we didn't notice the difference. I am 31 sure later on, as we worked through it with the lawyers, we 32 would have picked it up, but at the time that was not 33 something that I identified. 34 35 Q. Because only a couple of weeks before this, on 36 18 July, you had spoken to Brian Parker about Lis-Con 37 issues; that's right, isn't it? 38 A. That's right. 39 40 Q. We'll be coming to that in more detail a little later. 41 You're saying that nothing in that letter at tab 57 made 42 you concerned in light of your previous conversation with 43 Mr Parker? 44 A. I think, as I said at the last appearance or two, that 45 I hadn't connected the June inquiry about Lis-Con with the 46 July request from Brian Parker. So the name of the company 47 hadn't registered, it was the same.


1 2 Q. Although it would be, I think you've agreed, unusual 3 for you to be contacted by the then head of the NSW Branch, 4 effectively, of the CFMEU Construction and General 5 Division? 6 A. That is unusual. 7 8 Q. You're saying, can I ask you again, in relation to 9 point 5 at tab 57, you didn't connect the call with 10 Mr Parker on 18 July -- 11 A. No. With this -- 12 13 Q. -- with this letter? 14 A. With this point, no, definitely not. 15 16 Q. Even though you agree it was most unusual for you to 17 be contacted by such a senior person from the Union about a 18 company arrears situation? 19 A. I don't know where Bowen Hills is. 20 21 Q. All right. 22 A. So Bowen Hills in itself - I mean if that's to denote 23 a different State, I don't know whether that's in 24 Queensland or in New South Wales. 25 26 Q. But you did know the name Lis-Con? 27 A. Well, subsequently, definitely, but at the time 28 Lis-Con Services, Lis-Con Property - the various iterations 29 of that company were - was not in my mind as being a 30 constant. I just thought these were several companies that 31 the Union had concerns about arrears. 32 33 Q. But it was Lis-Con that was the subject of the 34 conversation that you had with Mr Parker on 18 July; that's 35 right, isn't it? 36 A. Yes. 37 38 Q. You hadn't forgotten that, had you? 39 A. Forgotten? I hadn't - for me, I saw this as being a 40 Queensland complaint, so I hadn't connected Queensland and 41 New South Wales together, but -- 42 43 Q. Even though it was the same company? 44 A. In retrospect it clearly is the same company. My 45 response to this at the time was to refer it to what I 46 believe were the appropriate executive managers, to look 47 more closely at the complaints that were being made and


1 respond. So I delegated responsibility for the 2 investigation of this to my executive managers. 3 4 Q. Are you saying you had no knowledge about where the 5 CFMEU in Queensland operated out of? 6 A. I couldn't - I know where they are. I mean, I've 7 been to their offices but I don't know what suburb that is. 8 If you asked me what suburb that is, I couldn't tell you. 9 10 Q. How do you get there when you go there? 11 A. It's in my diary and I tell - the car company that we 12 get has already got the address that we are going to; 13 that's where we go to. 14 15 Q. How often have you travelled to the Queensland office 16 of the CFMEU? 17 A. Probably half a dozen times. 18 19 Q. Are you saying you don't know where it is? 20 A. I know where it is but I don't - I get driven there, 21 I don't know the actual suburb that it's - where their 22 offices are. I don't need to know. It's not information 23 that's required because it has already been communicated to 24 the service that we use to take me there, or it's in my 25 diary and show it to the cab driver and they take me there. 26 27 Q. The next way that your attention was drawn to this 28 ongoing issue involving Lis-Con is a letter that appears 29 behind tab 66 at page 564; that's right, isn't it? 30 A. Sorry, tab 66? 31 32 Q. Yes. And then again there's the email chain and then 33 there's the letter. This one is addressed to Mr Bracks. 34 Do you see that? 35 A. Yes. 36 37 Q. Do you see from the email trail on the previous pages 38 that this had been forwarded from Cbus inquiries through to 39 Clementine Penninger. That was 9.15 on the 6th. She had 40 referred it to Lisa Zanatta, Cath Noye and 41 Mark Butterworth, do you see? 42 A. Yes. 43 44 Q. Do you see there from Lisa Zanatta to Maria Butera? 45 Do you see that? Do you see at 67, to complete the chain - 46 actually, it's part of a different chain. At tab 67, 47 Maria Butera forwards a letter to you and Angela Thurstans.


1 A. Sorry, I'm just - pardon me, I'm just trying to follow 2 this. 3 4 Q. Take your time. 5 A. So from Lisa to Maria. Oh, I see, sorry, so it's 6 from - yes, okay, sorry, I'm going a bit slow. 7 8 Q. And then at 67, to complete it, to come to you -- 9 A. Yes. 10 11 Q. -- at least by way of email, 6 August, 12.03pm, from 12 Maria Butera to you and Angela Thurstans, do you see that? 13 A. Yes. 14 15 Q. At tab 68, do you see that Maria Butera forwarded the 16 letter on to Johanna Neilsen? 17 A. Yes. 18 19 Q. Do you understand or have any observation to make as 20 to why that would have occurred? 21 A. Johanna is the executive Manager for People and 22 Culture. 23 24 Q. We haven't seen her name crop up in relation to this 25 issue before? 26 A. Yes. 27 28 Q. Why was she copied in on this occasion, do you know? 29 A. Can we go back? What does the letter say, from 30 memory? It mentions Steve Gaske, so I assume that because 31 it has raised one of our personnel, maybe Maria was 32 seeking, making sure that Johanna was informed and -- 33 34 Q. Take your time. One of the examples of - the letter 35 is reproduced a number of times. 36 A. Can you -- 37 38 Q. One of them is at 588. 39 A. It is the 1 August letter? Is that what we 40 are talking about to mean? 41 42 Q. The 1 August letter that was sent to you is being 43 copied and forwarded to Mr Bracks on 5 August, basically 44 complaining that there has been no response. 45 A. Nothing's happened, yes. I imagine it has been 46 referred to Johanna because there's been a complaint made 47 against one of our employees and so Maria would have been


1 discussing with Johanna what the issues associated with 2 that complaint would be and what's an appropriate response 3 to our employee that had been named. 4 5 Q. We saw - just to remind you - at 4.17pm, at page 563, 6 it was sent to the Cbus inquiries line, so that's when it 7 first reaches someone at Cbus, 5 August, 4.17pm. Do you 8 see that? 9 A. Right. 10 11 Q. With that in mind, could you please turn to tab 68A. 12 This is an email from yourself to Mr Bracks, do you see 13 that? 14 A. Yes. 15 16 Q. 17 Steve, 18 19 I thought I should send this through to 20 you. This is the employer I mentioned to 21 you yesterday who has made a complaint 22 about us breaching privacy policy. They 23 have now sent you personal correspondence, 24 complaining about our possible inaction. 25 We met with Holding Redlich yesterday 26 afternoon ... 27 28 This is a 6 August email, "yesterday afternoon", therefore, 29 being the afternoon of 5 August: 30 31 ... and we are in the process of completing 32 our investigation and should be able to 33 send back our response to [Lis-Con in] the 34 next few hours. I'll send you through our 35 draft response once we get the next version 36 from our lawyers. 37 38 A. Mmm-hmm. 39 40 Q. That is just putting the chronology in place. I am 41 going to come back to that meeting. It mentions in there 42 "investigation", "process of completing our investigation". 43 Can you tell the Commission what that means? 44 A. As I said before, we had referred this to Angela and 45 to Maria and, from memory, Angela, as the Executive Manager 46 for Governance and Risk, was - it was her primary 47 responsibility to investigate what we could find out, or to


1 oversee the investigation, and to put together an 2 appropriate response to the complaint. I think that 3 involved then doing a scan of emails from Steve Gaske in 4 Queensland, that was undertaken by one of Maria's staff 5 members, to find out what communication, if any, had been 6 provided. So -- 7 8 Q. Did you direct that the -- 9 10 THE COMMISSIONER: Q. Just one moment. Had you finished 11 that last answer, Mr Atkin? 12 A. Yes. 13 14 MS McNAUGHTON: Q. Did you direct that the inquiry be 15 limited to email? 16 A. No, I didn't - I didn't provide any clear instructions 17 about what the investigation should or shouldn't do. That 18 was a responsibility that my Executive Manager for 19 Governance and Risk took up and she took the steps that she 20 thought was appropriate. 21 22 Q. If you turn, please, to tab 69, do you see an email 23 chain there from Maria to yourself, Ms Neilsen, 24 Ms Thurstans, at the bottom of the page, 6 August, 2.43pm: 25 26 I have reviewed all email transactions for 27 Steve Gaske ... for the past two months ... 28 29 Then above that, Ms Thurstans to Ms Butera, yourself and 30 Ms Neilsen: 31 32 Thank you Maria 33 34 From your investigation can you also 35 confirm whether any other lists of members 36 attached to other employers of the Fund 37 have been sent out to 3rd parties? 38 39 She responds: 40 41 Angela, 42 43 I can confirm that my review of the last 44 2 months of email transactions from that 45 same account reveal no other lists of 46 members being sent to third parties. 47


1 Do you see that? 2 A. Yes. 3 4 Q. That's very clearly limited to email transactions, 5 even though we've seen earlier from the copy of the letter 6 that was sent to Mr Noonan, provided to you, that there was 7 talk of complaint about a number of clients' workers being 8 contacted from telephone numbers that originated in 9 Bowen Hills and you had been contacted by Mr Parker only a 10 couple of weeks earlier about Lis-Con? 11 A. So I, first of all, did not connect this complaint 12 with the Brian Parker inquiry, I think I've said that 13 before, and we did - so in terms of - we were confused 14 about how telephone numbers could have been sought, you 15 know, be provided, based on the email scanning that we had 16 undertaken and, you know, I think there was speculation 17 that, "Well, it's possible that that list was lined up 18 against Union membership", or those numbers could have been 19 sourced from the White Pages, but we at that point didn't - 20 couldn't see that we'd provided phone numbers to the 21 contractor or to the Union. 22 23 Q. You earlier said that you hadn't noticed that 24 subparagraph 5, or that paragraph 5 -- 25 A. At the time. 26 27 Q. -- at page 530. 28 A. Yes. 29 30 Q. You're now saying that you had given consideration to 31 how the phone numbers would have been obtained? 32 A. Subsequently. 33 34 Q. When are you saying that occurred? 35 A. As we are now sitting down with the legal team and 36 looking at our response and we are undertaking the 37 investigation internally to see what information actually 38 has gone out. 39 40 Q. When was that? 41 A. Well, I would assume it's around about the time that 42 the letter is being drafted. 43 44 Q. We are going to come to it, but you mean the 7 August 45 letter? 46 A. Yes, around then, yes. 47


1 MS McNAUGHTON: I am going to turn to a slightly different 2 issue. 3 4 THE COMMISSIONER: Ms McNaughton, do you think it would be 5 a good idea to have a 15-minute adjournment? 6 7 MS McNAUGHTON: Yes, Commissioner. 8 9 THE COMMISSIONER: Very well. The hearing will resume at 10 10 to 3. 11 12 SHORT ADJOURNMENT 13 14 MS McNAUGHTON: Q. Mr Atkin, do you recall your 15 organisation being issued with a notice to produce by the 16 Commission in April last year? 17 A. Yes. 18 19 Q. Can I show you this document. Does that appear to be 20 a copy of the notice to produce that your organisation 21 received on or about 29 April 2014? 22 A. Yes. 23 24 Q. Were you made aware of it around that time? 25 A. Yes. 26 27 Q. Were you aware that the documents sought by this 28 notice to produce related to the extent to which personal 29 member records of Lis-Con employees had been compiled or 30 transmitted in the period from January to November 2013? 31 A. Yes. 32 33 Q. One particular focus of the NTP, or notice to produce, 34 was Mr Parker. Can you see that? 35 A. Yes. 36 37 Q. That's at points 4 and 5 of Schedule A? 38 A. That's right, yes. 39 40 Q. Was your memory drawn at that time to a conversation 41 that you'd had with Mr Parker in relation to records at any 42 time that you'd had? 43 A. Sorry, the question -- 44 45 Q. I will have to rephrase that. 46 A. Yes. 47


1 Q. Was your memory refreshed by this document about any 2 conversation that you'd had with Mr Parker about Lis-Con? 3 A. When I received this I needed to retrace my diary 4 because I didn't have an immediate recognition of what the 5 significance of the notice was and I can't say precisely 6 when that realisation came to me, but obviously it 7 subsequently did as we started to work through - because 8 I think it was around this - it was around about this time 9 that we had the coverage in the Fairfax papers and it was 10 confused actually. 11 12 Q. The Fairfax papers ran an article, did they not, in 13 May 2014? 14 A. Yes, a couple of weeks later, I think. 15 16 Q. Could you please look at volume 3. I will just 17 provide you a further folder. Turn, if you would, please, 18 to tab 84. Do you see there a copy of an article by 19 Nick McKenzie and Richard Baker of May 11, 2014, entitled 20 "Super fund in union leak claim"? 21 A. I can see that. 22 23 Q. That goes over the page; can you see that? 24 A. Yes. 25 26 Q. I think over to page 816 as well. At 815, do you see 27 there, at about point 8 on the page, just next to the 28 photograph of Ms Mallia, a paragraph starting: 29 30 "The sole purpose of the disclosure of any 31 personal information [of workers] ... is to 32 ensure the payment of fund members' 33 superannuation entitlements," the spokesman 34 said. "Any disclosure made or used for 35 purposes other than this would be of 36 serious concern to CBUS." 37 38 And it goes on: 39 40 "The fund has only recently become aware of 41 the specific allegations raised. They are 42 currently subject to investigation and 43 review at a number of levels, including 44 being subject to internal investigation." 45 46 Do you see that? 47 A. Yes.


1 2 Q. Could you also turn, please, to tab 84A. Is that the 3 statement that appears to have been quoted in the Fairfax 4 article? 5 A. I'm making an assumption that that's the case. 6 7 Q. You see towards the bottom of that document, "While 8 the company referred to in the Fairfax article" - this is 9 on 12 May. 10 A. Yes. 11 12 Q. So this would appear to be after that first article 13 but I think there were others; is that right? 14 A. There were two or three; it wasn't just the one day. 15 16 Q. Again, indeed, I think, at tab 86 there's another 17 article, this time by Mr McKenzie, Mr Baker, Mr Dunkley of 18 May 13, 2014? 19 A. Yes. 20 21 Q. In any event, the point that I would like to ask you 22 about is the quote: 23 24 ... the fund has only recently become aware 25 of the specific allegations raised by 26 Fairfax. 27 28 Do you see that in the 84A document? 29 A. Yes. 30 31 Q. I would like to first ask you about that. How did you 32 recently become aware of the specific allegations raised by 33 Fairfax? 34 A. We've had the notice to produce at the end of April 35 and then we've had this - the journalists have approached 36 us about this story, from my memory. 37 38 Q. The wording at page 816-1, "... the fund has only 39 recently become aware of the specific allegations raised by 40 Fairfax", suggests that it is not Fairfax that has brought 41 it to your attention but some other source; is that right? 42 A. Well, I'm making an assumption here, but if - maybe we 43 thought it was not appropriate to be disclosing to the 44 public the notice to produce from the Royal Commission. 45 46 Q. What specific allegations are being referred to? 47 A. In the Fairfax story?


1 2 Q. In your press release or the press release by Cbus -- 3 A. The release of the information to the NSW Branch which 4 at that time we were not aware of, so the Queensland 5 legal - the Queensland Gaske case we hadn't connected to a 6 New South Wales breach of our policy. 7 8 Q. Are you saying that the specific allegations are only 9 obtained from the notice to produce? 10 A. Yes, I think that's what I'm saying. 11 12 Q. Where are the allegations in the notice to produce? 13 A. Well, no, the allegations are from the Fairfax 14 journalists, that we have released information that we 15 shouldn't have, but we know there's a notice to produce 16 that's referring to New South Wales and Brian Parker. 17 Again, I'd need to check on this, but I don't think we've 18 done - we have not done the forensics that has identified 19 the emails and the queries and so forth at this point and 20 I think we've probably made the judgment that it was 21 inappropriate for us to be talking about the 22 Royal Commission processes. What we were responding to was 23 the allegations from the Fairfax Media about the release. 24 25 Q. But in the first article, which predates the press 26 release, there is a quote from the company. Is there 27 another press release that the Commission has not obtained? 28 A. I don't think so. I think that might have been 29 perhaps just a phone call response from my media adviser to 30 Fairfax, but we'd need to check on that, but I don't 31 believe there were two press releases, two media releases 32 put out at the same time. 33 34 Q. What constituted the review at a number of levels, 35 including being subject to internal investigation? What 36 did that refer to back in May 2014? 37 A. I think at that point we began to join the dots. We 38 were confused at what actually had occurred and then - 39 because we originally thought the media inquiry was around 40 the Gaske release, but I think, from memory, the first 41 story was around New South Wales, so perhaps when we were 42 responding - again, I can't be - I can't be certain for 43 this, but when we were originally responding I think it was 44 - our knowledge was around the Queensland circumstances. 45 We were confused about the New South Wales element. 46 47 Q. Who is "we"?


1 A. My management team. 2 3 Q. Constituted by? 4 A. Oh, the executive and the head of my 5 corporate affairs, Peter Keogh, and we and 6 Angela Thurstans, we began to understand that this was - we 7 needed to identify exactly what happened and so we began 8 the process of commissioning. I asked Peter, as the head 9 of my corporate affairs, to oversee the internal 10 investigation process. 11 12 Q. Is this different to that email inquiry that we saw 13 just before the break? 14 A. Refresh my memory. That was? 15 16 Q. Where I asked you whether or not the inquiry was 17 restricted to emails? 18 A. That was Queensland; that was in August. This is a 19 separate - this was a separate exercise. So August, though 20 the email list was sent to a subcontractor, I delegated to 21 Angela and to Maria to do the investigation around that. 22 When this - when we became aware of this, I thought that it 23 was appropriate to have - and I could see that this was 24 going to take a lot of effort and so I reallocated duties 25 of my corporate affairs person and I asked him to oversee 26 the internal investigation. 27 28 Q. Do you know what the details of that process were? 29 A. Well, I think, again, we'd have to retrace all the 30 steps here, but certainly the first was to undertake a 31 query on all the data, you know, the data, looking at all 32 the emails of relevant personnel to see what had gone out 33 from the organisation, because I think at this point we 34 still hadn't identified the Lis-Con lists going to New 35 South Wales. 36 37 Q. On page 814, as part of the media article, the 38 whistleblower is stated as saying: 39 40 "State Secretary Brian Parker told me that 41 he had a contact in Cbus who could 42 discreetly ... leak him the information he 43 asked for" ... 44 45 You'd agree that email is about the least discreet way to 46 leak information from an organisation? 47 A. Sure.


1 2 Q. So any proper inquiries should go well beyond email; 3 that's right, isn't it? 4 A. In that respect, absolutely. 5 6 Q. Did that occur to you at the time, that -- 7 A. Well, I think we were just, first of all, trying to 8 make sense of what occurred, so we thought the first step 9 that we should take is at least do a scan of any 10 communication that had gone via email. That was the first 11 step, but subsequently -- 12 13 Q. But that would be a very preliminary step, surely? 14 15 THE COMMISSIONER: Q. Just a moment. Mr Atkin, finish 16 your answer, if you haven't already done so, if you would. 17 A. That's okay, I'm -- 18 19 Q. You are happy? 20 A. Yes, I'm happy. 21 22 THE COMMISSIONER: Mr Atkin is disclaiming any 23 inconvenience but occasionally he does give the impression 24 of wanting to add something and then the next question 25 comes along. We just have to be careful. 26 27 MS McNAUGHTON: Certainly. 28 29 Q. You don't want to add anything? 30 A. No. 31 32 Q. Just to give you a full opportunity, you said: 33 34 Well, I think we were just, first of all, 35 trying to make sense of what occurred, so 36 we thought the first step that we should 37 take is at least do a scan of any 38 communication that had gone via email. 39 That was the first step, but 40 subsequently -- 41 42 And then I interrupted you. Would you like to continue? 43 A. So subsequently, I mean, we were preparing for a board 44 meeting, from memory, where we were having to make a report 45 on this and the fact that management had started to 46 undertake the internal investigation, and then that was to 47 involve, again, from memory, I can't be - I can stand to be


1 corrected in terms of the steps, but that would involve 2 interviews with relevant personnel and then as over time 3 that investigation was broadened, we commissioned KPMG to 4 get their professional expertise, and then that has gone on 5 to phone calls, texts, iPads, interviews with people, and 6 so forth. 7 8 Q. Looking at the article which was, we've seen, in May 9 and looking at the notice to produce, which we've seen was 10 April, the notice to produce, if it was being dealt with 11 with expedition, as I would imagine it would have been -- 12 A. Absolutely. 13 14 Q. -- that was requiring you to look at emails in any 15 event; is that right? 16 A. Yes, I think, from memory. 17 18 Q. So the media article would not have caused you to do 19 that same exercise again? 20 A. No, that was already in train, that's correct. 21 22 Q. What else was being done? 23 A. Well, we - the Fairfax story gave us more context for 24 the notice to produce and so I think initially our response 25 was to just comply with the notice to produce, but then 26 when the Fairfax story became clear, it was clear that this 27 was going to require a more sustained effort from the fund 28 and it required dedicated resources from Cbus to undertake 29 the investigation process to get to the bottom of actually 30 what occurred. 31 32 Q. Mr Keogh was first in charge of that? 33 A. That's right. 34 35 Q. What made KPMG come into the picture? 36 A. So when we - as you can imagine, we were piecing all 37 of this together. We were doing the - as we are starting 38 to - again, I can't remember when the first batch of 39 information starts to come back, but it starts to show that 40 there were inappropriate releases of information, but when 41 we went into a board meeting and reported on establishing 42 the internal investigation, coming out of that discussion 43 it was a suggestion of one of the directors to get some 44 external assistance. We agreed that that was an 45 appropriate thing to do and that was the recommendation 46 coming out of that meeting. So we then commissioned KPMG 47 to work with us on undertaking the forensic exercise.


1 Again, I stand to be corrected, I think at that time we 2 also agreed to get KPMG to undertake not only a forensic 3 investigation of what data had or hadn't gone out of our 4 environment, but in addition, to undertake a privacy audit 5 of our policies and procedures to see that we had the 6 appropriate controls in place within the organisation. So 7 there were two separate pieces that were commissioned by 8 management of KPMG around that time. 9 10 Q. Could you turn, please, to the KPMG report at tab 94 11 of volume 3. Do you have that before you? 12 A. The preliminary findings report? 13 14 MS McNAUGHTON: Yes. Perhaps before I do that, 15 Commissioner, could I tender the notice to produce that 16 I've shown to the witness? It is Notice to Produce 17 Number 24. 18 19 THE COMMISSIONER: Yes. That will be Atkin MFI-1, 10 June 20 2015. 21 22 ATKIN MFI-1, 10 JUNE 2015, NOTICE TO PRODUCE NUMBER 24 23 24 MS McNAUGHTON: Q. The initial KPMG report dated 25 June 25 2014, do you see it starts at tab 94? 26 A. Yes. 27 28 Q. If you turn to page 852, or page 6 of the report, do 29 you see the last paragraph: 30 31 KPMG's procedures have not included 32 inquiries to determine whether members' 33 information may have been communicated by 34 any means other than through email 35 transmission (for example hard-copy printed 36 output or through the transfer of data 37 using portable memory devices). 38 39 We've got the KPMG report still being limited to email 40 inquiries? 41 A. That's right. I mean, I think one of the issues there 42 was that we, first of all, wanted to see what had gone out 43 in an email environment. One of the problems with other 44 ways in which communication could have been released is not 45 definitive. So even - and this was the advice from KPMG. 46 We could not be definitive about memory sticks, memory 47 devices, for example, being utilised.


1 2 Q. What about documents being printed out? 3 A. I think that was a subsequent step where we did look 4 at printing records of copying machines. 5 6 Q. Weren't you asked to do that, though, in response to 7 the notice to produce? 8 A. Possibly. I'm not - clearly, as the CEO, I was 9 overseeing the response of the fund to this significant 10 issue that had arisen. I'd delegated responsibility for 11 oversight, overseeing the investigation to personnel who 12 I thought had the skills and the time and the resources 13 able to undertake it. I was not involved in a day-to-day 14 exploration about the investigation, so if I'm not as 15 definitive in the answers to your questions as you'd like 16 I apologise for that, but that's because I wasn't involved 17 in it every step along the way and so I'll do my very best 18 to answer your questions. 19 20 Q. What from your perspective did cause KPMG to be 21 brought in? Was it only the media report? 22 A. No. I think that once we started to undertake the 23 queries and we began to see that, contrary to our 24 understanding, that we were - there was no information 25 other than aggregate information leaving the fund to 26 sponsoring organisations because that was the internal 27 policy of the fund and we began to see that there was 28 limited information - I mean, notionally, within the 29 public/private - sorry, the privacy policy that is 30 disclosed on our website, that concerned us greatly because 31 that was an inconsistency that was not clear to us at that 32 point and so KPMG, as our internal auditor, was an obvious 33 partner to work with to undertake the privacy audit, as 34 well to undertake the forensics, the forensic exercise. It 35 would not have just been in response to the media 36 reportage. It would have been in response to the fact that 37 as we started to undertake the response to the notice to 38 produce, we could see there was a problem. 39 40 Q. You were one of the people interviewed in relation to 41 the incident, weren't you? 42 A. Yes, I was. 43 44 Q. You can see that at page 859 or page 13 of the report? 45 A. Yes. 46 47 Q. In that part of the report there is set out an


1 account, apparently by you, as to the conversation you had 2 with Mr Parker; is that right? 3 A. That's right. 4 5 Q. Have you had an opportunity to have a look at that 6 record of your account? 7 A. Yes. 8 9 Q. Does that accurately reflect the account that you gave 10 to KPMG? 11 A. In general terms, that reflects the answers I gave to 12 the interview that I had with KPMG. 13 14 Q. What do you mean by "in general terms"? 15 A. As I've said in that interview and as I've said in the 16 previous two appearances at the Commission, I don't have a 17 word perfect memory of the conversation with Brian Parker, 18 so what I was conveying was my memory of that conversation 19 and it was - and so my memory of that conversation is in 20 line with those dot points that are there. 21 22 Q. But you remember the effect, do you say, of the 23 conversation? 24 A. Yes. The request was there was a problem with arrears 25 with a particular company and the Union was seeking 26 assistance from the Union [sic] to identify the extent of 27 the problem. 28 29 Q. The Union was seeking assistance from -- 30 A. From the fund -- 31 32 Q. From the fund. 33 A. -- to identify the extent of the arrears problem and 34 to make sure that, you know, all the steps were being taken 35 to make sure that members' entitlements get paid. 36 37 Q. What did you understand to be "was seeking assistance 38 from the Union to identify the extent of the problem"? 39 A. Sorry, I meant seeking assistance - the Union was 40 seeking assistance from the fund. 41 42 Q. From the fund, I beg your pardon. What do you 43 understand by the words "the Union was seeking assistance 44 from the fund"? 45 A. They were seeking information about the extent to 46 which there was an arrears problem with Lis-Con. 47


1 Q. Are you saying the effect of the conversation was only 2 an arrears inquiry? 3 A. Yes. 4 5 Q. Only that? 6 A. That's my memory. 7 8 Q. Anything to do with background? 9 A. Background? 10 11 Q. Background in relation to the arrears problem, or 12 words to that effect? 13 A. I'd say that's the same thing: background on the 14 arrears, history of Lis-Con and whether members 15 entitlements were being correctly paid. 16 17 Q. Was there any limitation you can recall in relation to 18 the information you said you could give? 19 A. Again, my memory is not precise on this, but - and 20 when the inquiry came - this is not my area of direct 21 responsibility in terms of the arrears management, so when 22 I got the request I'm thinking, "Okay, I've got this 23 request from the Union asking for help. I will refer it to 24 the appropriate executive to follow up exactly what the 25 requirements are", but it's in that - I did not respond, 26 "We will do anything other than see if we can help," 27 because I didn't have enough information and I didn't have 28 enough knowledge about the precise elements of the way in 29 which we worked with sponsoring organisations and so 30 I referred that to the appropriate executive manager to 31 follow up. 32 33 Q. Leave that for the moment. Could I ask you, though, 34 in relation to the email information provided to KPMG prior 35 to their preliminary report that we are looking at, on 36 25 June 2014, you would have become aware, would you not, 37 of emails between Ms Zanatta and Ms Butera in relation to 38 obtaining Lis-Con information? 39 A. Yes. 40 41 Q. Could I please ask you to go to volume 1 and 42 particularly tab 23. 43 A. Yes, I've got that in front of me. 44 45 Q. Do you see there an email from Ms Zanatta to 46 Mr McWhinney which follows from an email to her from 47 Mr Walls of Superpartners saying:


1 2 Bob please don't pass this on at this 3 stage. Thank you. 4 5 A. Yes. 6 7 Q. Just to be clear, that was one of the emails being 8 considered internally within Cbus and by KPMG in the May to 9 June 2014 period? 10 A. I think that's right. 11 12 Q. Can I ask you to turn to tab 28 of this same volume. 13 Do you see there an email from Ms Zanatta to one of your 14 senior executive team, Ms Butera: 15 16 We now have the data requested by 17 Brian Parker. I have spoken to Anthony for 18 passing it on to others without consent. 19 How would you like to proceed with the 20 information? I'll catch up with you to 21 discuss tomorrow if you are available. 22 23 Do you see that? 24 A. I do. 25 26 Q. Just to be clear, that was one of the emails being 27 considered internally within Cbus and by KPMG in the May to 28 June 2014 period? 29 A. That's my understanding. 30 31 Q. Isn't it the case that at least these two emails would 32 appear to be restricting data being sent and also referring 33 to data requested by Brian Parker, at a time proximate to 34 when you had a conversation with him, wasn't that enough to 35 put you on notice that there was an issue in relation to 36 the provision of information involving Brian Parker? 37 A. Put on notice, meaning? I mean, clearly we could see 38 that there was investigations occurring around 39 understanding the arrears of that company and we were 40 trying to find how that information - you know, how 41 individual personal details left our environment to the 42 Union. So this would have - you know, this was an 43 important piece of information that was then used by the 44 internal investigation and by KPMG to continue to 45 understand what actually occurred but - so -- 46 47 Q. But you clearly involved at least one member of your


1 senior Executive team? 2 A. Yes, and my understanding is - I mean, I was not 3 involved directly in the questioning, but my understanding 4 is that this trail was explored in the interviews between 5 KPMG and Lisa, and there were explanations that were 6 provided to KPMG that, on face value, made sense and didn't 7 indicate that it was Lisa who had released this 8 information. 9 10 Q. Didn't that, though, remind you of the conversation 11 you'd had with Brian Parker, such that you wanted to try 12 and recall in as much detail as you could the conversation 13 you'd had with him on 18 July 2013? 14 A. Sorry, I'm trying to find - understand your question. 15 So, in having a look at this, did that make me reflect on 16 the conversation that I had with Brian? Is that the 17 question? 18 19 Q. Yes. Such that, for example, you would have raised 20 with KPMG, saying, "Well, these emails are odd. I had a 21 conversation with Brian Parker. Maybe you should follow up 22 in incredible detail" - perhaps with Mr Parker or perhaps 23 with others at the CFMEU - "what all this meant"? 24 A. We certainly did have a discussion on an ongoing basis 25 reviewing what had occurred. I think it is reported in the 26 KPMG report itself. We didn't believe - so we were very 27 conscious that we had an internal investigation and we were 28 trying to fight to get to the bottom of what occurred, but 29 we did not want to complicate or get - you know, get in the 30 way or impede in any way the processes of the Royal 31 Commission, and so we felt that it was inappropriate for us 32 to question Brian Parker given that we understood that that 33 would be a line of inquiry from the Royal Commission. So 34 our orientation was to say, "Well, let's focus on our 35 environment and our personnel and seek to understand what's 36 occurred there." 37 38 We had many scenarios that we speculated around in 39 terms of how did this information get out and, at this 40 point, we did not have conclusive evidence of how that 41 information had been released from us. 42 43 Q. Given that it was clear the Royal Commission was 44 interested in this issue, did it occur to you or anyone in 45 your organisation, in particular these emails, to bring 46 them to the attention of the Royal Commission? 47 A. I think we subsequently did.


1 2 Q. But you produced them as part of a bundle of a large 3 number of documents. Did it occur to you that it would be 4 useful to bring these particular documents -- 5 6 MR CRUTCHFIELD: That's not a fair question, 7 Mr Commissioner. 8 9 THE COMMISSIONER: The question was: "Did it occur to 10 you." 11 12 MR CRUTCHFIELD: Yes. 13 14 THE COMMISSIONER: He may say "I don't remember" or "It 15 never occurred to me", or, "It did occur to me but 16 I rejected it" for some good reason. How is it unfair? 17 18 MR CRUTCHFIELD: Well, there is a notice to produce 19 process that the Commission follows. I withdraw the 20 objection. 21 22 THE COMMISSIONER: All right. Very well. Yes. You had 23 better repeat the question. 24 25 MS McNAUGHTON: Q. Did it occur to you that it would be 26 useful to bring these particular documents - and by that 27 I meant the document referring to Brian Parker and the 28 other one about didn't want the further publication with 29 Mr McWhinney - to the specific attention of the Royal 30 Commission? 31 A. There are many occasions when we felt that we would 32 have liked to have had an ongoing dialogue with the 33 Royal Commission about our internal investigation, but we 34 felt constrained based on the fact that the 35 Royal Commission had clearly - this was now a formal part 36 of the process of the Royal Commission, and in no way did 37 we want to be seen to be interfering or getting in the way 38 or complicating, but, you know, the essence of your 39 question is did it come into our minds that should we be in 40 liaison with the Commission about what we were learning, 41 yes, and we thought we were doing that by complying with 42 the notices to produce. 43 44 Q. When you came to give evidence in October last year, 45 you were aware, were you not, that there were phone records 46 between Ms Zanatta and Ms Butera, between Ms Zanatta and 47 Mr Parker, you and Mr Parker, and you and Ms Zanatta?


1 A. Yes. 2 3 Q. And that you were also aware, were you not, that there 4 was evidence in relation to a flight taken by Ms Zanatta to 5 Sydney? 6 A. Yes. 7 8 Q. You were also aware of a courier record from 26 July 9 2013 also relating to Ms Zanatta? 10 A. Yes. 11 12 Q. Did these matters paint a suspicious picture in your 13 mind in relation to the potential involvement of at least 14 Ms Zanatta in the provision of information to Mr Parker? 15 A. We certainly had our concerns about the fact that as 16 we tracked this information, that circumstantially that 17 was - that implicated Lisa, but it wasn't definitive. It 18 was - it was put to Lisa by the investigation and by our 19 legal team, so her story was on an ongoing basis tested, 20 and you need to remember that there was also a plausible 21 alternative in our minds as to how that information left 22 our organisation. 23 24 Q. But you have answered as the first part of your last 25 answer: 26 27 We certainly had our concerns about the 28 fact that as we tracked this information, 29 that circumstantially that was - that 30 implicated Lisa ... 31 32 A. Well, it could be but it was not definitive in our 33 minds and so we tested that circumstantial evidence with 34 her, and she had plausible alternative explanations for 35 those phone calls, for that courier, for those - for that 36 plane trip. 37 38 Q. You were asked on 3 October last year whether it came 39 as a surprise to you that Ms Zanatta had admitted 40 delivering the Lis-Con employee records to the CFMEU, and 41 you said it was completely surprising. Do you recall that? 42 A. Yes, I do. 43 44 Q. Well, it wasn't, was it? You have said that you had 45 your concerns? 46 A. Let's put this in the context of - so we had concerns. 47 We've tested those concerns. Those concerns have been


1 responded to in a very confident and clear way back to us. 2 It was incomprehensible to us that we would have two senior 3 managers that were prepared to put themselves at risk and 4 to lie to a Royal Commission. So, my answer to that 5 question on 3 October was in that context, that despite 6 having concerns which we tested, on an ongoing basis for 7 several weeks, we could not - it was just incomprehensible 8 to us that two senior managers would put themselves at risk 9 in that way. 10 11 Q. You have already said this afternoon you had your 12 concerns? 13 A. Correct, but those concerns were responded to in a way 14 that gave us confidence that they were telling us the 15 truth. 16 17 Q. So you had your concerns but you're saying your 18 concerns had completely dissipated by the time you gave 19 evidence to the Royal Commission on 3 October 2014? 20 A. Yes. We were confident that we had two senior 21 managers that were telling us the truth. Because we had 22 tested the evidence with them and they had given us 23 plausible explanations for each of those pieces of 24 information that we had. 25 26 THE COMMISSIONER: Q. Was one of the explanations given 27 by Ms Zanatta that she travelled to Sydney in order to 28 attend a meeting of the Property company in the group? 29 A. That's my understanding. That was one of the 30 explanations that was provided. 31 32 Q. But there was no meeting of the Property company in 33 the group on that day? 34 A. But there was an issue that was being - my 35 understanding is there was an issue that required her 36 involvement that was occurring with Cbus Property around 37 that time. Now, the second thing to say is I was not the - 38 personally, I was not undertaking the investigation. I was 39 not asking the questions; I was not testing the evidence. 40 That was not my role. That was not an appropriate role for 41 me to play, given that I was one of the pieces in the chain 42 in all of this, so that was delegated to Peter Keogh, to 43 KPMG and to our legal team. 44 45 MS McNAUGHTON: Q. Why didn't you, though, say to the 46 Commission, "Yes, we've had our concerns too. I'm not 47 completely surprised because there were circumstantial


1 facts which, taken together, could have pointed in this 2 direction." Why didn't you say something to that effect? 3 A. Because - because, as I said, we thought that it was 4 incomprehensible, unbelievable, just unfathomable that we 5 would have two of our senior managers that would lie to us, 6 to our lawyers, to their peers; to the Royal Commission. 7 We accepted that they were telling us the truth. 8 9 Q. So you had your concerns but they were completely 10 allayed? 11 A. They were allayed by the fact that we had tested - and 12 we were not in a position to - we didn't have contradictory 13 evidence that that was the case, and when we did find 14 contradictory evidence, we acted immediately. 15 16 Q. In what way? 17 A. We provided the information to the Royal Commission 18 within 24 hours of us receiving the information, when it 19 was clear that we were not being - that we were being 20 told - when the truth was not being told to us; more 21 importantly, not to the Royal Commission. 22 23 Q. Can I go to the 18 July 2013 conversation -- 24 25 THE COMMISSIONER: Q. Just so that one can follow that 26 last answer of yours, you were talking about the provision 27 of what can loosely be called electronic records on or 28 about 24 October? 29 A. Yes, the iMessages exchange. 30 31 MS McNAUGHTON: Q. Can I go to the conversation, we've 32 touched on it, on 18 July. Can I ask you some more 33 detailed questions about it. Do you say there was only one 34 phone call? 35 A. One phone call with -- 36 37 Q. Mr Parker. 38 A. That's my memory. If you've got records that show 39 something different, that's possible. There was more than 40 one issue that I was dealing with at the time with 41 Brian Parker around then. There was a - we were working 42 out arrangements for me to attend a meeting to provide a 43 death benefit cheque to a family that was travelling from 44 Canada, a backpacker that had died on a job, and so I was - 45 we were arranging organisation around that. So it's 46 possible that we were talking about that as well. 47


1 Q. Well, you're offering that up, but isn't it the case, 2 as you've said in relation to your Bowen Hills evidence, 3 you have people to organise that sort of thing for you, 4 don't you? 5 A. That was - that was a particularly sensitive issue and 6 we were - I mean, the initial view was that we were seeing 7 whether there was an alternative person that could attend 8 in my presence, but I think, as Brian explained, they were 9 wanting to get some publicity about workplace safety and so 10 they were organising, I think from memory, A Current Affair 11 to report on this story and the meeting that I was 12 attending - that I was to attend would involve A Current 13 Affair being there to film me handing over the cheque to 14 the family. They wanted the CEO of the super fund to hand 15 over the cheque. So, hence, this wasn't just a normal 16 operational matter. This was something that required 17 further explanation for me to agree to go up there and do 18 it, because the truth is I didn't feel comfortable 19 initially without that additional context being provided. 20 21 Q. Is Angela Bianco your assistant? 22 A. She is. 23 24 Q. Is it her job to look after matters of making 25 appointments and the like? 26 A. Yes. 27 28 Q. Can I ask you, please, to turn to page 80 behind 29 tab 18. Do you have that there? 30 A. I do. 31 32 Q. Do you see that's an email between -- 33 34 MR CRUTCHFIELD: Mr Commissioner, just before that goes up 35 on the screen, if it is going to, can I just draw to 36 everybody's attention that there is something on the first 37 page, page 76, that should be redacted. We notice that it 38 has got a mobile telephone number for Nicola Roxon. 39 40 MS McNAUGHTON: We are not going to be putting that page 41 up. 42 43 MR CRUTCHFIELD: I just want to make sure that it doesn't 44 go up. 45 46 MS McNAUGHTON: Q. I'm asking you to look at page 80. 47


1 THE COMMISSIONER: Yes. Thank you, Mr Crutchfield. 2 3 MS McNAUGHTON: Q. Do you see there that there was an 4 email between your assistant and Ms Mallia and it is 5 talking about your availability? 6 A. Yes. 7 8 Q. It looks like other people were arranging your visit? 9 A. Yes. 10 11 Q. It also says at the end, by Rita Mallia: 12 13 Please let me know if this is feasible, 14 I know David is a very busy person. 15 16 Do you see that? 17 A. Yes. 18 19 Q. How likely is it really, sir, that you and Mr Parker 20 are on the phone arranging this? 21 A. Well, as I explained, my initial view was that I was 22 seeking an alternative person to undertake this - respond 23 to this request. The feedback I got from the team was that 24 no, no, no, the Branch would like the CEO there because it 25 has significance given the fact that they were trying to 26 get some public attention about workplace safety, and they 27 thought having the CEO of their super fund would assist in 28 them conveying that story. 29 30 Q. Would you be kind enough to go to the folder, the Cbus 31 Telephone Records Chronology, that slim folder - do you 32 have it there? 33 A. I have it. 34 35 Q. Page 8. Do you see on page 8, halfway down the page: 36 37 Parker ... to David Atkin ... for 00:01:00 38 39 A. Yes. 40 41 Q. So that's at 8.35am on the 18th. Then at 8.37am, you 42 SMS Mr Parker? 43 A. Yes. 44 45 Q. Then there's a call, not involving you, but between 46 Mr Fitzpatrick and Mr Parker -- 47 A. Yes.


1 2 Q. -- at 9.40am, and then at 10am, a call by you to 3 Mr Parker for three minutes and 30 seconds? 4 A. Yes. 5 6 Q. And then soon after that you sent an SMS to Ms Butera; 7 do you see that? 8 A. Yes. 9 10 Q. Does that remind you of that morning on 18 July 2013? 11 A. Well, it reminds me that there was some interaction 12 there. I can't - I can't tell you what each of the 13 communication pieces were. That doesn't remind me of that, 14 no. But, I mean, there was definite communication with 15 Brian and I around his request. It's possible that what's 16 happened here is that Brian's made the initial request. 17 I've talked to Maria and then I've got back to Brian to 18 say, "Maria will now follow this up." That's plausible. 19 20 Q. You said earlier today that you didn't express any 21 sort of limitations as to what information could be 22 provided; do you recall that? 23 A. No, no, I think that I did, because I was saying we 24 could see if we could help. There would be, as I've said 25 in previous hearings, I don't have a precise memory about 26 the words, but there were clearly going to be restrictions 27 on what we could do to assist, and what I was saying to 28 Brian was, "I'll find out how we can help." 29 30 Q. Why, though, was it that very shortly after that 31 "around the world" email, if I could refer to it in that 32 way, at tab 7, where there was good detail about the 33 various history and also legal action being taken against 34 Lis-Con, why was it, do you understand, that further 35 arrears information was being obtained by Mr Parker? 36 A. I didn't know. That's why it needed to be followed up 37 to understand what was the basis for their inquiry. 38 I didn't know. 39 40 Q. Well, it doesn't make sense, does it? 41 A. Well, that wasn't for me. I didn't see that it was my 42 role to understand the background, you know, the detail of 43 the request. I saw my role was to respond and to see what 44 was - how we could help and to get back to Brian to say, 45 "Well, we will follow this up". 46 47 Q. Ms Butera has, since you were last in the public


1 hearings of the Commission, provided further evidence to 2 the Commission about what she says was the terms of the 3 conversation she had with you about the conversation that 4 you'd had with Mr Parker on 18 July. According to 5 Ms Butera, you told her that Mr Parker had asked you for 6 the personal member details of Lis-Con employees for the 7 purposes of a Union campaign and that you'd further said, 8 according to Ms Butera, "Obviously we want to help the 9 Union where we can." Are they in fact the terms of the 10 conversation that you had with Ms Butera? 11 A. That's not my memory of the conversation with 12 Brian Parker. "Help where we can" is, but, as I said, 13 I don't have a precise memory of the conversation, but we 14 certainly did not talk about the Fund providing personal 15 member details to the Union which would include addresses 16 and phone numbers, and so forth. 17 18 Q. First of all, you say "That's not my memory of the 19 conversation", and you don't have a precise memory of the 20 conversation -- 21 A. No. 22 23 Q. -- but you do say that you know you definitely didn't 24 ask for personal member details? 25 A. That's my memory. We did not talk about providing - 26 it was a general discussion about the arrears problem with 27 that company, and Brian was seeking assistance to get some 28 further background on that company, and I said that I would 29 see what we could do to help. 30 31 Q. I am going to show you further information within this 32 material about events which happened before this 33 conversation between you and Mr Parker. Can I ask you, 34 please, to turn to tab 15 in volume 1. 35 A. Yes, I see that. 36 37 Q. Do you see on the very last line of page 63 that there 38 is a message there from Anthony Walls: 39 40 Hi Bob 41 42 And it would appear in context that that would be 43 Bob McWhinney. This is on 8 July at 3.04pm: 44 45 Hi Bob, 46 47 I've had a chat to our Fund Service


1 Coordinators team who sit near me. They 2 said that the most convenient way to get 3 all the info you want for Lis-Con is to run 4 a Query on the database which limits the 5 report to the details that we need. 6 7 It goes on to say it is going to cost $110 plus GST, 8 et cetera. 9 A. Mmm-hmm. 10 11 Q. Do you see that there must have been a call prior to 12 that email, would you agree with that, because that's the 13 logical -- 14 A. That's logical. 15 16 Q. -- impact about that. Can I then invite you to look 17 at the telephone records, please, of 8 July. 18 A. Yes. 19 20 Q. At page 6, the third entry down, do you see at 21 11.09am, which is before 3.04pm, that Mr Fitzpatrick calls 22 Mr McWhinney for two minutes and 37 seconds? 23 A. I can see that. 24 25 Q. That would appear to be at least an opportunity for 26 that to have generated that request, would you agree? 27 A. That's a logical conclusion. 28 29 Q. Can I ask you now to turn to tab 11. Do you see 30 there's an email there from Anthony Walls to a number of 31 different people, from apparently United Super, including 32 Ryan Dawson, Trish Harper and others: 33 34 Hi guys,. 35 36 Bob McWhinney (Cbus Coordinator) has 37 requested that a query be done for 2 38 employer accounts. He has confirmed via 39 email that he is happy for the fund to pay 40 the necessary fee. 41 42 There are then two Lis-Con companies set out there. Then 43 do you see: 44 45 Bob requires a list of, 46 47 - All members registered with both


1 employers (current and past) 2 - Member Number 3 - Member Name 4 - Dates of Birth. 5 - Address 6 7 Do you see that? 8 A. I do. 9 10 Q. There is no request for arrears information in that 11 email, is there? 12 A. Not that I can see. 13 14 Q. The request for only details about employees is 15 entirely consistent, is it not, with what Mr Fitzpatrick 16 said about there being an industrial campaign against 17 Lis-Con having been instituted during the course of the 18 Executive meeting between 25 and 27 June; would you agree 19 with that? 20 A. On face value, that sounds about right. 21 22 Q. The next thing that happened, it would appear, is 23 Mr McWhinney, back at page 63, having sent an email, which 24 one would infer was not seen by Mr Walls before the email 25 we've just looked at, saying: 26 27 Thanks Anthony 28 I will only need a list of the last 29 completed payment headers for the two 30 accounts ... 31 32 And repeats those account numbers for the Lis-Con 33 companies. It would appear now that the request has 34 completely changed from rather than needing all the 35 information about members, including their addresses, but 36 no arrears information, to, rather, only asking for arrears 37 information, ie, "last completed payment headers"; do you 38 see that? 39 A. I do. 40 41 Q. Do you see if you go to the phone records, back at 42 page 6, that there is a call at 11.38am between 43 Mr McWhinney and Ms Zanatta for five minutes and 44 26 seconds? 45 A. Mmm-hmm. 46 47 Q. Since you gave evidence on the last occasion,


1 Ms Butera has provided an account that Ms Zanatta had told 2 Mr McWhinney in relation to, it would appear to be, the 3 first request that we have seen at page 49; that is, only 4 member information, including addresses and no arrears 5 information, that Ms Zanatta told Mr McWhinney, "Well, 6 that's not appropriate and if that's what Brian Parker 7 wants, he needs to go and seek that from the CEO", or words 8 to that effect. Are you aware of that information? 9 A. I'm aware of that information. 10 11 Q. And Ms Zanatta has said, in her account to the 12 Commission since you gave evidence, she queried the purpose 13 of the information with Mr McWhinney and basically told 14 Mr McWhinney, words to the effect, "Get Parker to try his 15 luck with the CEO if you want that sort of level of 16 information." You are aware of that information? 17 A. Mmm. 18 19 Q. And that fits, does it not, with what appears to be a 20 complete change in request between page 49 and page 63 by 21 Mr McWhinney, you'd agree with that, it's consistent with 22 that? 23 A. On face value, that looks like. 24 25 Q. I suggest to you that that in fact is what occurred 26 and that Mr Parker did subsequently, on 18 July, try his 27 luck with the CEO, being you? 28 A. So he came to me and asked for assistance around an 29 arrears issue with that company and, as I've said, I don't 30 have a precise memory, but I was not asked for personal 31 details like addresses and phone numbers, and so forth, and 32 I said, you know, in effect, that we would see if we can 33 help, "There will be limitations on what we can do, but 34 I'll investigate further and we'll come back to you." 35 36 Q. Just to complete the train, at tab 16, the second 37 entry, Mr Walls, at 1.30pm on 9 July, forwards to 38 Mr McWhinney: 39 40 Please see attached spreadsheets for both 41 Lis-Con accounts for last payment received 42 as requested. 43 44 So that's the revised request that he asked for at page 63, 45 it would appear, do you agree? 46 A. Yes. 47


1 Q. The next thing that happened in fact is not at the top 2 of the email, there are a few things in between. At 3 page 53, behind tab 13, there appears to be an attempt to 4 send the document by Mr McWhinney to Mr Fitzpatrick but the 5 address is mistyped and the K is left off "Fitzpatrick", 6 that is 12 July? 7 A. Yes. 8 9 Q. So there's been a bit of a delay between 9 July when 10 Mr Walls sent it to Mr McWhinney and when the attempt has 11 been made on the 12th. Do you see that? 12 A. I can. 13 14 Q. And then the next attempt is tab 14. Tab 14 indicates 15 it was in fact not delivered because of the permanent fatal 16 errors in the address. 17 A. Yes. 18 19 Q. And then the next thing, page 61 at 12.32pm, it is 20 again misaddressed. 21 A. Yes. 22 23 Q. And then at the top of page 63 it appears that 24 Mr McWhinney has successfully sent something to 25 Mr Fitzpatrick but it doesn't look like the information. 26 He has forwarded something. That's at 12.36pm on 12 July. 27 A. Mmm-hmm. 28 29 Q. And then at page 65, at 3.30pm, finally he 30 successfully forwards on the material that had been 31 provided to him three days earlier at 1.30pm. Do you see 32 that? 33 A. I do. 34 35 Q. And in between, from the phone records, it would 36 appear that there are phone records which support that 37 occurring. Page 6, there are calls between Mr McWhinney 38 and Mr Fitzpatrick? 39 A. Mmm-hmm. 40 41 Q. Where it would accord with the email failing and it 42 being resent. Do you see those messages? 43 A. Yes, I do. 44 45 Q. You heard or read Mr Fitzpatrick stating that 46 Mr Parker had told him that he was not satisfied with the 47 detail of the material that had been provided by


1 Mr Fitzpatrick? 2 A. I remember that. 3 4 THE COMMISSIONER: McWhinney, do you mean? 5 6 MS McNAUGHTON: Q. And you have heard what I just -- 7 8 THE COMMISSIONER: Ms McNaughton, do you mean the detail 9 provided by Mr McWhinney? 10 11 MS McNAUGHTON: Mr McWhinney, I beg your pardon. Yes, 12 Commissioner. 13 14 Q. Mr McWhinney. And you also heard what I have just 15 indicated to you what Ms Butera said you said; that is, 16 that Mr Parker did request you for personal member details 17 for the purposes of a Union campaign. Now, I suggest to 18 you that Ms Butera's account, when you take into account 19 the background of the requests that were initially made, 20 pulled off, a smaller request, and then a call to you, 21 accords with what Ms Butera said you said? 22 A. Well, that's the construct you put on it. That's not 23 my memory of the conversation that I had with Brian Parker. 24 25 MR CRUTCHFIELD: Mr Commissioner, for the transcript, 26 I should just record that I don't think the cross-examiner 27 has fairly put to the witness what in fact Ms Butera said. 28 My reading of Ms Butera's evidence is she didn't say that 29 Mr Atkin said to her that the purpose of the request was 30 for the purposes of an industrial campaign. I might be 31 missing it, but I don't see that in Ms Butera's private 32 interview. 33 34 THE COMMISSIONER: That should be considered. 35 36 MS McNAUGHTON: I'll just go to that, Commissioner. 37 I will just clear that up, Commissioner. 38 39 THE COMMISSIONER: If there is force in that, it is an 40 important point. 41 42 MR CRUTCHFIELD: My friend is going to read out page 3. 43 There is a different account given of the conversation as 44 it is passed on at page 5. It is passed on to Ms Zanatta 45 by Ms Butera. 46 47 MS McNAUGHTON: Commissioner, for the record, page 3 of


1 the Butera session on 10 December, lines 13 to 15, use the 2 words: 3 4 That Brian Parker had asked him for 5 personal member details of Lis-Con 6 employees for the purposes of the Union 7 campaign. 8 9 THE COMMISSIONER: Yes. I think, Ms McNaughton, if you 10 are absolutely confident in the strength of your position, 11 we need not pursue this further, but I think it is 12 desirable to be absolutely sure that Ms Butera's version is 13 put to Mr Atkin so that he can indicate his state of 14 recollection or other position he has on it. 15 16 MS McNAUGHTON: I read the precise words used by the 17 witness. 18 19 THE COMMISSIONER: Well, if you're confident. 20 21 MS McNAUGHTON: Yes. 22 23 MR GAME: I have a very short objection to it. I've got 24 no objection to Ms Butera's account being put, but the way 25 the question was framed before, it was kind of inviting the 26 witness to qualify his evidence by reference to what the 27 probabilities were attached to two other people's evidence 28 and, in my submission, that's not a proper way to put the 29 question. The actual form of the question, in my 30 submission, was not appropriate. 31 32 THE COMMISSIONER: I suppose the underlying motive of the 33 question, in fairness to Mr Atkin, is that he can cope with 34 a line of reasoning which may or may not be advocated 35 later. 36 37 MR GAME: That's fine. So long as it is put as not him 38 commenting on the probabilities attached to other people's 39 accounts, but on his recollection of the conversation in 40 the light of -- 41 42 THE COMMISSIONER: I think he is really being asked to 43 compare his own evidence against some other circumstances 44 which, to some minds, might indicate some doubt about his 45 own evidence and just to see whether he adheres to it or 46 wants to qualify it at all. I wasn't myself conscious of 47 any fundamental defect in the question, but again,


1 Ms McNaughton, if Mr Game's advocacy causes a sense of 2 guilt to creep over you, you can respond to it. 3 4 MS McNAUGHTON: Not so far but I will review it. Is that 5 a convenient time, Commissioner? 6 7 THE COMMISSIONER: Yes. Everyone is happy to resume at 8 10am tomorrow? Very well. The hearing will resume at 10am 9 tomorrow morning. 10 11 AT 4PM THE COMMISSION WAS ADJOURNED TO THURSDAY, 11 JUNE 12 2015 AT 10AM 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47
