transcript 20 july 2015 - trade web view1 the commissioner: i think "improper" is a word...

ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION

Level 1, 12 Moore Street, Canberra City, ACT

On Monday, 20 July 2015 at 10.00am (Day 6)

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

Counsel Assisting: Mr J Stoljar SC Mr Richard Scruby

Instructed by: Minter Ellison, Solicitors

.20/07/2015 CFMEU ACT 387 Transcript produced by DTI

1 THE COMMISSIONER: Mr Morison, who do you appear for? 2 3 MR MORISON: I appear today for Sam Delorenzo. 4 5 THE COMMISSIONER: Very well. Thank you. You have 6 already got authorisation to appear, have you? 7 8 MR MORISON: I have given it to Counsel Assisting 9 solicitors, this morning. I have made application in 10 writing. There is also other parties that I will be 11 appearing for in due course. 12 13 THE COMMISSIONER: Very well. Thank you. 14 15 On Thursday, 16 July, various witnesses gave oral 16 evidence. The CFMEU objected to parts of their witness 17 statements, with some, although not complete, success. 18 19 Richard David Lewis was the last of those witnesses. 20 He was subjected to pressing personal difficulties. For 21 that reason, it was agreed by counsel that his evidence 22 should be taking expeditiously. 23 24 When he entered the witness box, the CFMEU made seven 25 objections to his witness statement. As part of the 26 agreement just mentioned, it was decided that the rulings 27 on those seven objections be held over until Friday 28 morning, 17 July - (see transcript page 358, line 42 to 29 page 359 line 19). 30 31 However, at the close of the hearing on Thursday, 32 16 July, the CFMEU courteously explained that because of 33 other pressing duties, it would not be present on Friday, 34 which was expected to be, and turned out to be, a short day 35 - (see transcript page 371, lines 15 to 28). 36 37 The objections were considered on Thursday evening and 38 certain rulings and the reasons for them were formulated, 39 but because of the impending non-appearance of the CFMEU on 40 the Friday, it was decided not to deliver those rulings, or 41 publish those reasonings on that day, but to stand the 42 matter over to today when the CFMEU indicated that it would 43 be present, as indeed it is. 44 45 Over the weekend, a consideration of the events of 46 Thursday has led to the tentative view, a view which is 47 provisional only, and subject to correction or abandonment


1 in the face of argument from counsel, namely, that the 2 advocacy advanced by the CFMEU, skilful and powerful though 3 it was, has led the proceedings down a wrong path. 4 5 What follows is the prelude to a general ruling, which 6 may or may not be made on Mr Lewis's statement. The 7 purpose of stating what follows is to enable the CFMEU and 8 Counsel Assisting to present arguments against the 9 tentative view. 10 11 Since neither the CFMEU, nor Counsel Assisting, have 12 been informed yet of this tentative view, it is open to 13 both of them to present contrary argument. 14 15 It should also be said that what follows is the result 16 only of general reflections, unassisted by any recourse to 17 works of legal learning, for the Commission is, so to 18 speak, on circuit for these three weeks, sitting in 19 Canberra, a location remote from the centres of legal 20 sophistication in Australia. 21 22 A close consideration of the objections to Mr Lewis's 23 statement confirms a nagging doubt that arose during the 24 process of objecting to defending and ruling on the 25 admissibility of earlier statements. 26 27 For present purposes, the process of objecting to 28 questions put orally can be put on one side. No great 29 difficulties in relation to the hearings in Canberra has 30 yet emerged. In that regard, the main consideration 31 applicable to those matters concern questions which may be 32 unfair to a witness because they are obscure, or double 33 questions, or ambiguous or unnecessarily offensive. What 34 is said just now does not apply to oral questioning. 35 Different issues tend to arise with written material. 36 37 Some of the objections made would be valid if the 38 material objected to had been tendered in ordinary 39 litigation, whether it be criminal litigation or civil 40 litigation, particularly of a serious kind as where fraud 41 or some other crime is alleged, or a breach of some 42 professional standard is alleged. That is because the 43 material may contravene the rules of evidence. 44 45 The hearings of the Commission are not ordinary 46 litigation. The rules of evidence are to a large, but not 47 complete extent, found in statutes such as the Evidence Act


1 1995 (Commonwealth) which has similar but not identical 2 counterparts in the Australian Capital Territory, 3 New South Wales and Victoria, as well as some other 4 jurisdictions. Those statutes, however, apply only to 5 courts and the Commission is not a court. It lacks the 6 powers of the court. Unlike a court it does not declare, 7 in any way binding anyone, the rights which exist between 8 citizens and between the citizen and the State. Its 9 primary role is to investigate matters of fact which may be 10 hard to unearth. 11 12 So far as the rules of evidence are common law rules, 13 to a large extent they too apply only in courts. It must 14 be remembered that over the last 300 years, the development 15 of the rules of evidence in courts has been against a 16 background of extensive jury trial. Jury trial was 17 universal for serious crimes; to a large extent in 18 Australia it still is, and jury trial was very common in 19 non-equity civil trials, although in Australia by now trial 20 by judge has almost completely superseded it. 21 22 Rules of evidence which were worked out, whether by 23 judges or legislatures, where jury trial was standard and 24 where it was thought desirable to refine the information 25 passing to the jury by excluding material thought to be 26 prejudicial or insufficiently reliable by the rules of 27 evidence, are not appropriate to the procedure of a body 28 which is not a court and not a jury. 29 30 It is therefore not surprising that the Evidence Acts 31 apply only to courts and therefore not to Royal Commissions 32 and it is, therefore, also not surprising that the 33 Royal Commissions Act 1902 of the Commonwealth does not in 34 terms import any of the rules of evidence, though it does 35 assume the existence of some of them. 36 37 The Royal Commissions Act says almost nothing about 38 how evidence is to be tendered. Section 6FA provides that 39 persons authorised to appear before the Commission, or 40 their legal representatives "may, so far as the Commission 41 thinks proper, examine or cross-examine any witness ..." 42 That does not suggest that the restrictions on examination 43 and cross-examination imposed by the general law of 44 evidence as applied in courts apply in Commissions. That 45 is because a great many of those rules do not depend on 46 what judges think proper. They simply depend on their own 47 existence as creating an obligation on the judge.


1 2 The Act makes no express provision for written 3 evidence statements, though they may be treated as simply a 4 short form or a short-form technique for the giving of 5 evidence which would otherwise be given orally. 6 7 On what basis, then, can it be right to object to 8 material in the written statements of evidence? To put it 9 another way, on what basis can it be right to uphold 10 objections to material which are in written statements of 11 witnesses? What statutory rule, or common law rule, 12 justifies accession to a successful objection? 13 14 It is right to object to material which is outside the 15 Terms of Reference, and objections of that kind are not 16 uncommonly upheld. But nothing in Mr Lewis's statement, or 17 the other statements on Thursday, is in that category. It 18 is right to object to material which might be described as 19 vexatious or unduly embarrassing. That is a fairly rare 20 type of objection but a legitimate one. None of the 21 objections to the statements was in that category. 22 23 It is right to object to material which collides with 24 legal professional privilege. That privilege is generally 25 regarded as a fundamental principle which operates more 26 widely than the rules of evidence. While it can be 27 abolished by statute, that outcome requires clear words. 28 The Royal Commissions Act is generally thought not to 29 abolish the privilege. Indeed, it creates procedures for 30 the recognition of the privilege or for practical methods 31 by which it may be protected. In that respect, legal 32 professional privilege can be contrasted with another 33 fundamental principle operating beyond the boundaries of 34 the rules of evidence, namely, the privilege against 35 self-incrimination, which the Act abolishes, subject to 36 certain safeguards. 37 38 It is also right to object to material which witnesses 39 may desire to keep confidential, for various reasons: 40 personal addresses, telephone numbers, email addresses and 41 other categories of information which it is proper to keep 42 private. This reflects ideas underlying some of the common 43 law evidentiary privileges and also underlying areas where 44 the courts in practice have a discretion to order 45 non-disclosure, or at least to persuade parties against 46 pressing for disclosure. 47


1 One qualification should be stated. Even if the rules 2 of evidence are not directly applicable, there are broad 3 principles underlying them which can legitimately be called 4 on. Most of those principles are principles of fairness 5 and natural justice. 6 7 Subject to that qualification, the structure of the 8 Royal Commissions Act, and the legislation relevant to 9 evidence, suggests that the primary focus of Commissions is 10 to be on the weight of evidence; not its admissibility. 11 Material which would be inadmissible, if tendered in a 12 court, should not necessarily be inadmissible if tendered 13 to a Commission. What a Commission makes of the range of 14 evidence before it, strong or weak, firsthand or 15 fourth-hand, direct or circumstantial, is a matter to be 16 decided at the end of the day; not at the start of it or 17 early in the day. 18 19 Many of the objections which were made last week 20 relate to hearsay evidence, particularly hearsay statements 21 which is either greater than firsthand or by unidentified 22 persons. The objections tended to rest on the idea that no 23 hearsay evidence is admissible under the general law. If 24 that were ever true, it ceased to be true about 200 years 25 ago. The activities of common law judges in the 19th 26 century and of legislatures in the 20th century have 27 created many exceptions to the hearsay rule of enormous 28 breadth. That is true of the Australian Evidence Acts. It 29 is also true of American enactments like the Federal Rules 30 of Evidence 1971. It is true of hearsay in criminal cases 31 in England under the Criminal Justice Act 2003. And the 32 English Civil Evidence Act 1995 has in substance abolished 33 the rule against hearsay. 34 35 Even where the rule against hearsay still exists, a 36 great deal of anonymous hearsay is receivable - (see, 37 for example, section 114(1)(d) of the Criminal Justice Act 38 2003 in England which permits hearsay to be received where 39 the interests of justice require it). 40 41 The point is not that Australian bodies should be 42 slavishly following American or English developments. The 43 point is that to erect a rigid dichotomy between bodies not 44 bound by the rules of evidence, and those which are, can be 45 a false dichotomy. It can suggest that the rules of 46 evidence are much less liberal than they actually are, here 47 and in jurisdictions from which our rules came, or


1 jurisdictions which travel along similar paths to our 2 rules. 3 4 Several further points should be borne in mind. 5 6 The Terms of Reference expressly require the 7 Commission to inquire into various factual matters. Some 8 of those factual matters in this Commission, as in others, 9 can be very hard to elicit information about. 10 11 What I am about to say is couched only in general 12 terms, it has no specific reference to any evidence called 13 last week. 14 15 People may not want to reveal information for various 16 reasons. The information may interest the police. It may 17 interest commercial rivals. It may interest regulatory 18 organs of government like the ATO, ASIC, APRA or the ACCC. 19 It may engender reprisals, or at least stimulate a fear of 20 reprisals. For that reason, quite small morsels of 21 information gained with considerable difficulty, even if 22 each morsel is hearsay, or fragmentary, or indirect, or 23 anonymous, can be useful. Of course, the utility of 24 morsels of information, even if each by itself is 25 unsatisfactory or difficult to test, can be real when these 26 morsels are taken together in the light of all the relevant 27 evidence on a point. 28 29 The morsels of information are often circumstantial 30 evidence and circumstantial evidence which, by itself, can 31 seem rather weak can have a different aspect when 32 considered, as the mandates of factual reasoning compel it 33 to be, with all the other evidence. 34 35 There is a further point. The weaknesses or strengths 36 of particular evidence will depend on the use which 37 Counsel Assisting seek to make of it. Much of the evidence 38 objected to may never in fact be relied on by 39 Counsel Assisting. Ideas come along, they are tested, they 40 fade away. Other ideas are tested and do not fade away. 41 42 It is best to assess the usefulness of evidence in 43 terms of weight and not admissibility at the time of final 44 address. Only by that time will it be possible to consider 45 all the evidence, strong or weak, direct or indirect, easy 46 to test or hard to test, together. 47


1 If Counsel Assisting rely on evidence which is 2 defective in form, or in other ways, it is obviously open 3 to parties resisting the submissions of Counsel Assisting 4 to point out those defects and to object to the evidence at 5 that stage. Object to it, that is, as any safe basis for 6 some broader conclusion. 7 8 Against that background, it is very doubtful that the 9 time taken in dealing with specific objections to written 10 material is time well spent. Indeed, the whole enterprise 11 may cause positive harm, or at least be outside what is 12 contemplated by the structure of the Royal Commissions Act. 13 14 For those reasons, the ruling I propose to make, 15 subject to contrary argument, on the seven objections to 16 Mr Lewis's written statement is to admit it, subject to 17 objection. 18 19 Do counsel have any submissions about that proposed 20 course? Mr Stoljar? 21 22 MR STOLJAR: I don't have any submissions at this stage, 23 Commissioner. 24 25 THE COMMISSIONER: Mr Agius? 26 27 MR AGIUS: If we are just dealing with Mr Lewis's 28 statement -- 29 30 THE COMMISSIONER: I think we should just deal with his 31 for the time being, I agree with you. 32 33 MR AGIUS: And if that order is inferring that we will 34 have an opportunity to address the remarks that you have 35 made, Mr Commissioner, about the law of hearsay and 36 questions of admissibility, then - in other words, if it is 37 a pro tem ruling, then we would not object to, but we would 38 seek an opportunity to put some submissions generally in 39 response to the words that have fallen from you today. 40 41 THE COMMISSIONER: Yes. When do you want that opportunity 42 to be made available? 43 44 MR AGIUS: I would like to support them with references to 45 authority and matters of historical significance and, to do 46 that, I really need to be back in Sydney. The earliest -- 47


1 THE COMMISSIONER: A centre of legal civilisation, yes. 2 That would mean in two weeks' time or so, a little more 3 than two weeks. 4 5 MR AGIUS: The submissions would be more meaningful and 6 briefer. If I am just called upon to respond now, I am 7 certain it would not be nearly as of assistance as if I had 8 an opportunity to reflect, look at the authorities, and 9 provide the Commission with that which we think would be 10 useful guidance. 11 12 THE COMMISSIONER: I understand your point of view. 13 Mr Stoljar, do you see any difficulty with that? 14 15 MR STOLJAR: No, Commissioner. 16 17 MR AGIUS: I would do it in writing. 18 19 THE COMMISSIONER: Yes. I know that you are under heavy 20 burdens for the next five weeks, or so, but if you could 21 let us have something in early August, that would be a good 22 idea. 23 24 The only practical difficulty I see is this: one is 25 this issue that has arisen with Mr Lewis may arise in the 26 coming days. The other is my experience of doubt over the 27 weekend, of course, was triggered not just by the 28 objections to Mr Lewis, but by the objections to Mr and Mrs 29 Marcantonio and, to a lesser extent, I think, an earlier 30 body of objections. 31 32 I think depending perhaps on what you say in your 33 written submissions in early August, it may be necessary to 34 revisit those earlier rulings and to consider, if the 35 earlier rulings were brought in line with the Lewis ruling, 36 what that meant for the recall of witnesses. 37 38 MR AGIUS: I understand that. 39 40 THE COMMISSIONER: Yes. 41 42 MR AGIUS: Although we have framed the objections in terms 43 of hearsay, very rarely have we done that in circumstances 44 where it is firsthand hearsay -- 45 46 THE COMMISSIONER: No. 47


1 MR AGIUS: -- and never in a circumstance, certainly not 2 in these sittings, where the other party to the 3 conversation is a witness. 4 5 THE COMMISSIONER: Yes. Give me credit just for this, 6 Mr Agius: I did detect a certain discrimination in your 7 objections when I contrasted two other instances of 8 non-objection last year. I appreciate that your objections 9 were not unthinking or without a rational basis, but let me 10 make this concession in argument: taking a fragment of 11 evidence, and your objection to that fragment of evidence, 12 the objection is often, in a general sense, a sound one. 13 The question is really whether that is the right approach 14 to a Commission which is, as it were, wandering around the 15 landscape sniffing, trying to find out things it does not 16 know anything about, as distinct from what happens where 17 you have two parties, who much more than anyone else, know 18 all there is to know about a controversy and are in a 19 position to put the best evidence about that controversy 20 forward and must, therefore, pay a price if their proofs do 21 not match up to the rules of evidence, but we can debate 22 these things later if necessary. 23 24 Mr Morison, I suppose you just jumped into the 25 swimming pool, so you won't have much to say about this? 26 27 MR MORISON: No, Commissioner. I have no submissions in 28 relation to it. 29 30 THE COMMISSIONER: Very well. Mr Lewis's statement will 31 be admitted, subject to objection. Like all evidentiary 32 rulings, that is a pro tem or interim ruling only. 33 Mr Agius has leave to provide some written submissions, 34 I suppose, (a), seeking an alteration of that ruling; and, 35 (b), directed to the question whether other earlier rulings 36 ought or ought not to be moved into line with the ruling 37 for Mr Lewis. 38 39 There is no need to be precise about the time, but 40 within a week or two after we leave Canberra would be a 41 good time. 42 43 STATEMENT OF RICHARD DAVID LEWIS 44 45 THE COMMISSIONER: Mr Stoljar? 46 47 MR STOLJAR: Yes, Commissioner. We move today to a


1 different case study. It is a case study involving a 2 construction company called Claw Constructions. My first 3 witness is Mr Troy James Armstrong. 4 5 <TROY JAMES ARMSTRONG, sworn: [10.31am] 6 7 <EXAMINATION BY MR STOLJAR: 8 9 MR STOLJAR: Q. Would you tell the Commission your full 10 name? 11 A. Troy James Armstrong. 12 13 Q. You're a resident of the ACT? 14 A. New South Wales, but I work in the ACT. 15 16 Q. You operate a business under the name 17 Claw Construction? 18 A. Yes, I do. 19 20 Q. You have prepared a statement dated 26 May 2015. Do 21 you have a copy of that statement with you in the witness 22 box? 23 A. Yes, I do. 24 25 Q. Is the content of your statement true and correct? 26 A. Yes, it is. 27 28 Q. Just working through some of your statement -- 29 30 THE COMMISSIONER: Do you want to tender it? 31 32 MR STOLJAR: I am sorry, yes. If I could ask that that 33 statement be received into evidence. 34 35 THE COMMISSIONER: Yes, Mr Agius? 36 37 MR AGIUS: These objections were prepared, obviously, 38 before we -- 39 40 THE COMMISSIONER: That is all right. That is a very 41 useful activity. What I will do is just place the 42 objections with the statement, and I think the appropriate 43 order is that the statement be received, subject to the 44 objections, and what actually becomes the objections will 45 depend on your later submissions. Is that satisfactory? 46 47 MR AGIUS: Yes, thank you.

.20/07/2015 CFMEU ACT 397 T J ARMSTRONG (Mr Stoljar) Transcript produced by DTI

1 2 THE COMMISSIONER: Very well. 3 4 MR AGIUS: There was a typographical error which 5 I corrected in pen. 6 7 THE COMMISSIONER: 36? 8 9 MR AGIUS: Yes, 36. 10 11 THE COMMISSIONER: Thank you. Mr Armstrong's statement 12 will be admitted subject to the objections formulated by 13 Mr Agius and just handed up. 14 15 STATEMENT OF TROY JAMES ARMSTRONG DATED 26/05/2015 SUBJECT 16 TO THE OBJECTIONS FORMULATED BY MR AGIUS 17 18 MR STOLJAR: Q. How long have you been in the 19 construction industry? 20 A. Seven to eight years now. 21 22 Q. Sorry? 23 A. Seven to eight years. Started in 2007 my own 24 business. 25 26 Q. You would have been quite young then? 27 A. Yes. 28 29 Q. Just after school? 30 A. A little bit, yes. 31 32 Q. You are a builder by trade, so you have your licence, 33 do you? 34 A. Yes. I have a builder's ticket as well. 35 36 Q. I'm sorry? 37 A. Yes, I have a builder's licence as well. 38 39 Q. Maybe move the mic a little bit closer to you. You 40 are just a bit hard to pick up there. Yes, that's fine. 41 A. (Witness does as requested) 42 43 THE COMMISSIONER: The other thing, Mr Armstrong, is that 44 this is broadcast, perhaps not to a very large audience, 45 but it is hard for them to hear it unless you keep close to 46 the microphone. 47


1 THE WITNESS: Not a problem. 2 3 MR STOLJAR: Q. Tell us about Claw Construction, what 4 sort of work does it do? 5 A. We are a medium-sized business that specialises in 6 formwork, steel fixing and concrete walling systems. 7 8 Q. The steel fixing is obviously closely related to the 9 formwork? 10 A. Yes. 11 12 Q. Did you say concrete walling system? 13 A. Concrete walling system, it is Hardie walls, block 14 walls, AFS, Dincel. Just relating to structures. 15 16 Q. You say you have an equal partner in the business and 17 most of your work is in the ACT. Is it mainly residential, 18 or commercial as well? 19 A. Mainly commercial, medium-sized unit blocks. 20 21 Q. Unit blocks? 22 A. Yes. 23 24 Q. How many employees do you have, roughly? 25 A. Anywhere from about four to five full-time and then my 26 numbers can build depending on the sizes of the jobs. 27 28 Q. You bring on people if you need to? 29 A. Yes. 30 31 Q. You describe a couple of jobs in the early paragraphs. 32 You say Arthur Circuit, Forrest, and Erindale. Should that 33 be "Arthur Circle"? 34 A. Yes, sorry. 35 36 Q. You say, "We were building four top-of-the-line 37 townhouses." 38 A. Yes. 39 40 Q. Delorco was the head contractor was it? 41 A. Yes, they were the builder on the job. 42 43 Q. They were the builder, and was Claw doing the formwork 44 and steel fixing? 45 A. Yes. 46 47 Q. Did Claw have an EBA?


1 A. No, it didn't. 2 3 Q. You go back to May or June 2012 and you have some 4 names there in the last two lines of paragraph 5. That was 5 your crew on the job, was it? 6 A. Yes, that is correct. 7 8 Q. You had a telephone call and then you ended up having 9 a meeting with Tony from the CFMEU. Do you know Tony's 10 last name? 11 A. No, I'm not sure. 12 13 Q. Anyway, you went and had a meeting with him at 14 McDonald's in Fyshwick and he asked you what jobs you were 15 on? 16 A. Yes. 17 18 Q. And you told him about the Arthur Circle job and the 19 job at Wanniassa? 20 A. Yes. 21 22 Q. You are calling that the Erindale site but the suburb 23 was actually Wanniassa? 24 A. That is correct. 25 26 Q. You say in 8: 27 28 ... we were building a multi-unit 29 development with 'Dellow' ... 30 31 Q. Dellow is the head contractor there? 32 A. Yes, they were. 33 34 Q. When you say you were building it, you were doing the 35 formwork and the steel fixing? 36 A. I was subcontracting, yes. 37 38 Q. You had a couple of other jobs you were doing at the 39 same time? 40 A. Yes. 41 42 Q. You had this discussion with him. Your recounting of 43 this discussion goes on for a few paragraphs, right over to 44 page 4 or thereabouts. Did you take any notes of the 45 meeting? 46 A. No, I didn't. 47


1 Q. Did Tony? 2 A. No, I don't believe he did. 3 4 Q. I'm sorry? 5 A. I don't believe he did. 6 7 Q. Did he have any papers or anything? 8 A. No. 9 10 Q. Did he -- 11 A. He showed generally what an EBA is and their hourly 12 rates, and all that, but I did not take any paperwork off 13 him. 14 15 Q. I see. So he had EBA, did he? 16 A. Yes, I believe he did. 17 18 Q. There was no-one else present, was there? 19 A. No, just Tony and myself. Just Tony. 20 21 Q. You set out as best you can words to the effect of 22 what was said? 23 A. Yes. 24 25 Q. You don't suggest, I take it, that this is an exact 26 transcript of what was said, you have just done the best 27 you can to set out the gist of it? 28 A. That is correct. 29 30 Q. For example, in 9, you recount him saying words to the 31 effect at the bottom there: 32 33 "This is the way the industry is going and 34 the other formwork companies in town are 35 signing EBAs and we will take control of 36 the jobs. We will soon be telling you 37 which ones you can and can't go on." 38 39 A. Yes. 40 41 Q. Do you have a memory of him saying that? 42 A. Yes. 43 44 Q. That's clear in your head? 45 A. Yes, definitely. 46 47 Q. Were you surprised by that?


1 A. A little bit. 2 3 Q. Then he said to you, you say in 10: 4 5 "... we can go about other ways with CFMEU 6 memberships and/or making donations ..." 7 8 Did he tell you what sort of donations he had in mind? 9 A. No, he didn't. 10 11 Q. What did you understand him to mean? If you're just 12 speculating, don't say, but what did you understand? 13 A. I didn't know what he meant. I just didn't want to 14 hand over any money towards them. 15 16 Q. How did you feel about that? 17 A. Not good at all. I felt put into a corner and, yeah, 18 I didn't feel that they had much to offer me. 19 20 Q. Did he suggest how much the donations were that he was 21 talking about? 22 A. No, nothing along those lines. 23 24 Q. What about the CFMEU memberships, who were going to be 25 the members? 26 A. He started by first saying that me and my business 27 partner, Luke Anderson, should join, "and then we can talk 28 further about an EBA and getting all your boys in line." 29 30 Q. You say in 11 you had a problem with that because the 31 EBA, as far as you were concerned, would have you paying 32 too much for a labourer from your point of view? 33 A. Yes. 34 35 Q. You set out here that the EBA would end up paying 36 about $80,000 or $90,000 to a labourer, and you said that 37 you and your two brothers are married with university 38 degrees, you're earning less than $90,000 a year, and you 39 set out some discussion you had with him about small 40 businesses. Do you actually have a clear recollection of 41 that discussion? 42 A. Yes, pretty much. 43 44 Q. You have set out, as best you can, exactly what he 45 said to you in paragraph 12, at the bottom there? 46 A. Yes. 47


1 Q. And then you say: 2 3 I am happy to show him my tax returns. 4 5 You told him you were happy to show him your tax returns to 6 show that you had not taken home $90,000 in any of these 7 years and he said, "Mate, I don't care." 8 A. That is correct. 9 10 Q. The meeting concluded, you say in 18, with him saying 11 the words that you have set out. You have a clear 12 recollection of those words being said? 13 A. Yes, I do. 14 15 Q. How far advanced was the Forrest site at this point? 16 A. The Forrest site, I believe we'd already poured the 17 ground slab and was moving towards the Erindale site at 18 that time. 19 20 Q. Where was your crew? Had they moved off Forrest or 21 you're not sure? 22 A. Most of them were off Forrest and, yes, towards 23 Erindale. 24 25 Q. And gone to Erindale. When I say "gone to Erindale", 26 going to the Wanniassa site? 27 A. The Wanniassa site, yes. 28 29 Q. What you call the Erindale site? 30 A. That is correct, yes. 31 32 Q. You say that Aaron - is that Aaron Golledge? 33 A. Yes. 34 35 Q. He gave you a call? 36 A. Yes. 37 38 Q. He raised your site safety plan and your SWMS? 39 A. Yes. 40 41 Q. You set out the conversation you had with him in 19 42 and 20. Was that the first time that the CFMEU had gone to 43 the Erindale site, to your knowledge, at least about Claw? 44 A. Yes, it was. 45 46 Q. And that occurred shortly after your meeting with 47 Tony?


1 A. Within the next day or two. 2 3 Q. You weren't on the site when they came at Erindale? 4 A. No, I wasn't. 5 6 Q. You then deal with the Flemington Road site in 7 paragraphs 24 and following. I just want to be clear on 8 days. Do you have a clear recollection of when in 2013 9 these events happened, as you sit here in the witness box? 10 A. I'm not exactly sure of the dates. I just know I was 11 travelling back from Sydney the day that it happened. 12 13 Q. The day that -- 14 A. The job was stopped and the concrete pour was stopped 15 by the CFMEU. 16 17 Q. Oh, okay. So that's what happened in 27. I will come 18 back to that, but just looking at 25, for example, you say: 19 20 Some time in October 2013 ... 21 22 Are you sure about that, or do you not really know? 23 A. I don't really know. 24 25 Q. Could it have been earlier, in January or February, 26 2013? 27 A. I believe so. 28 29 Q. All right. You weren't on the site when the CFMEU 30 came, yourself? 31 A. No. 32 33 Q. That was in relation to this first visit, and then a 34 bit later - we now come to 27 - and you say that 35 Claw Constructions has halfway through a concrete pour. 36 A. Well, the builder, Claxton, was halfway through the 37 concrete pour. 38 39 Q. And you came back from Sydney. I see, Bob Rossi 40 called you first? 41 A. Yes. 42 43 Q. You were in the car, were you? 44 A. Yes. Coming home from Sydney, yes. 45 46 Q. You were listening to the ABC Radio and you heard 47 about it on the radio?


1 A. Radio, a couple of hours later, yes. 2 3 Q. Still in the car? 4 A. Still in the car. 5 6 Q. That pour was stopped, but it did pick up again a bit 7 later, did it? 8 A. Yes. I am not sure when it was poured later on. 9 I believe the site was closed for a couple of days after 10 that and then they continued pouring maybe a week later, or 11 something. 12 13 Q. Was that the last work that Claw did on that 14 particular job, that pour? 15 A. Pretty much. We were pretty much finished there but, 16 yes, we still had to go back to pull out all the materials 17 and all the rest of it, so we were still on site after 18 that. 19 20 Q. But Multi-Crete took over a lot of the other work, did 21 it? 22 A. I believe Multi-Crete, yes, done the pour and then 23 took over doing some precast walling systems on the top 24 level. 25 26 Q. You then talk about a Tharwa site and you say you were 27 working with your dad, Terry Armstrong, on a site at 28 Tharwa; you were building some townhouses? 29 A. Yes. 30 31 Q. What sized job was that? 32 A. Just a small job that comprised of just one 33 residential house block with three townhouses on it. 34 35 Q. Three townhouses? 36 A. Yes. 37 38 Q. You say "Googong Developments"? 39 A. That's just the business name of me and my father. 40 41 Q. That you have with your dad? 42 A. Yes. 43 44 Q. You say on Wednesday, 5 December 2013, you received a 45 call from your father saying that the CFMEU had turned up. 46 Did they give you any notice that they were coming? 47 A. No, they did not.


1 2 Q. You told him to lock the gates and stay out the front 3 of the job and you say: 4 5 When I arrived on site, the Union men and 6 my father were shouting at each other. 7 8 Was your dad there on his own? 9 A. Yes, he was. 10 11 Q. How old was your father at that time? 12 A. About, I believe, either 66, 67 years of age. 13 14 Q. The three fellows from the Union were shouting and 15 carrying on, were they, to your observation? 16 A. Yes, they were. 17 18 Q. One of them you got the business card, it was 19 Mr Lomax? 20 A. That is correct. 21 22 Q. Just tell us what happened then? You had a 23 conversation with them? 24 A. Yes, pretty much. I told them that they were all a 25 bit heated. I told them to calm down. I said, "What's the 26 issues with the sites?" He started carrying on with a lot 27 of issues and I said, "Mate, this is not a big commercial 28 site, it's a residential site", and pretty much from there 29 they picked a few little things. I said, you know, "At the 30 end of the day we're not subject to all these site policies 31 and all this that you see on big commercial sites. This is 32 just a small residential build. What is your main safety 33 breaches?", and all the rest of it. One of them said 34 something about, "Power webbing around the hole." I did 35 have that in the back of my father's car, ready to be 36 installed, which I did prove to them, so we just stopped 37 the job, erected the power webbing, which I did want to do 38 later after the banks were battered, but, anyway, done that 39 and then got the diggers back in and continued building. 40 41 Q. How many people were working on the site when you got 42 there? 43 A. Just the guy in the digger, digging a hole; a couple 44 of truck drivers obviously taking the dirt away, and my 45 father. That was it. 46 47 Q. You put the power webbing up around the hole, did you?


1 A. Yes, straight away. 2 3 Q. That was in the back of your dad's ute? 4 A. Yes. 5 6 Q. In 35 and following, you are dealing with a site at 7 Majura Parkway? 8 A. Yes. 9 10 Q. Someone called Brett spoke to you? 11 A. Yes. 12 13 Q. You have set out the conversation as best as you can 14 recollect in paragraph 36? 15 A. Yes. 16 17 Q. In 39, as far as you were concerned, you are setting 18 out your reasons why you don't want an EBA? 19 A. Yes. 20 21 Q. Can I just check one thing: going back to the 22 Erindale job -- 23 A. Yes. 24 25 Q. -- you had arranged for Mike Baldwin to be there from 26 Master Builders. 27 A. Yes. 28 29 Q. They didn't turn up while he was there, the CFMEU; is 30 that right? 31 A. The CFMEU threatened to shut us down and kick us off 32 the site and put Class 1 in, in place of us. After that, 33 the owner of the construction site, Dellow, which was their 34 foreman, had contacted the Master Builders, I had as well, 35 and I believe Mike Baldwin was going to go past the site 36 every morning for the next two or three mornings trying to 37 hope to catch the CFMEU at the gates in the morning. 38 39 Q. Did they end up putting Class 1 Form in, or did Claw 40 finish the job? 41 A. No, the CFMEU backed off after that and we didn't see 42 them on site, but they did say to the builder, Aaron, quite 43 a few times, that this bloke is not CFMEU approved and that 44 he is not to work on this site, and that we have found you 45 Class 1 that is CFMEU approved to take the job over. 46 47 THE COMMISSIONER: Mr Stoljar, do you want a short


1 adjournment so you can examine Mr Agius's objections to see 2 whether there is any method of rectifying them or meeting 3 them? 4 5 MR STOLJAR: Yes, that would be convenient. 6 7 THE COMMISSIONER: Resume at, shall we, at 11? 8 9 MR STOLJAR: Yes. 10 11 THE COMMISSIONER: The hearing will resume at 11. 12 13 SHORT ADJOURNMENT 14 15 THE COMMISSIONER: Yes, Mr Stoljar? 16 17 MR STOLJAR: Q. Mr Armstrong, can I just ask you to go 18 back to your statement for a moment. 19 A. Yes. 20 21 Q. If you have a look at paragraphs 19 and 20, 22 particularly the second half of 19, you say: 23 24 I received a call from Aaron. 25 26 And then you set out the conversation. In paragraph 20, 27 you are setting out more of that conversation, are you? 28 A. Pretty much, yes. I was just -- 29 30 Q. You weren't on the site yourself? 31 A. I wasn't on the site, no. 32 33 Q. You were just relying on what Aaron told you about 34 what had occurred? 35 A. That is correct. 36 37 Q. He was the foreman for Dellow on the job? 38 A. Yes. 39 40 Q. In 26, likewise, you are just recounting what Zoran 41 told you? 42 A. That is correct. 43 44 Q. I won't take you to 27. In 35, you say: 45 46 I was going to do the job with 47 Gungahlin Concrete.


1 2 Were you subcontracting to Gungahlin? 3 A. Yes, I would have been. 4 5 Q. Who were you dealing with mainly at Gungahlin? 6 A. That was Lewis. 7 8 Q. Richard Lewis? 9 A. Richard Lewis, yes. 10 11 Q. Did you talk to Peter Marcantonio at all? 12 A. Peter, I spoke to, but mainly when it came to the 13 prices and organising the job, I was speaking to Lewis. 14 15 Q. When you took the eight employees to the site to do an 16 induction, how did that come about? 17 A. That was mainly Richard Lewis from Gungahlin saying 18 that they should be signing a contract shortly and you 19 should be right to go in the next week or so. 20 21 Q. He told you that, and then you took your guys to the 22 site to do the induction. Who did you do the induction 23 with? Was it through Fulton and Hogan? 24 A. The induction is through, yes, through Fulton and 25 Hogan, the main subcontractor or builder. 26 27 Q. Did Fulton and Hogan facilitate the induction? Did 28 they take your employees through it? 29 A. Yes. Yes, they did. 30 31 Q. What were you expecting at that time? When were you 32 expecting to sign the contract? 33 A. I wasn't really expecting to sign it. Just mainly 34 clarify with Gungahlin how we would go about it and 35 hopefully start work within a week or two. 36 37 Q. When you say you weren't expecting to sign it, you 38 weren't expecting to sign it at the induction? 39 A. No. 40 41 Q. You were expecting to sign one in due course, were 42 you? 43 A. Yes, I was. 44 45 Q. You had expected to start work in the next week or 46 two? 47 A. The next couple of weeks --


1 2 Q. And that was -- 3 A. -- I recall now -- 4 5 Q. I'm sorry, please finish your answer. 6 A. Yes, they were telling me in a couple of weeks we 7 should be right to go. 8 9 Q. That was Gungahlin telling you that? 10 A. Yes. 11 12 Q. In 36, you recount the conversation you had with 13 Mr Harrison. He makes the comment at the end of the 14 conversation, or at least what you have recounted of it, at 15 the top of page 8. I take it you don't play cricket with 16 Mr Harrison? 17 A. No, I don't. 18 19 Q. Do you play it at all? 20 A. No, I don't. I didn't really know what he meant by 21 that, but I took it as a bit intimidating, as him to say, 22 "If you do get a start on this job, I'm going to be on you 23 and watching you and trying to get an EBA signed out of 24 you." 25 26 Q. What sort of tone of voice? Was it a joke, to your 27 impression? 28 A. It was a sort of, I don't know, a little bit of 29 arrogance about him. 30 31 Q. What did you say? 32 A. I just said, "We'll see what happens." I pretty much 33 moved on. 34 35 Q. In 37, I take it that you weren't on the Erin Street 36 job yourself at the time, you were relying on the site 37 foreman to recount to you what had happened? 38 A. Yes, that is correct. 39 40 Q. He told you these things that you have set out about 41 the CFMEU representatives going through your safety books, 42 and so on? 43 A. Yes. 44 45 Q. Did you have any other source of knowledge about those 46 visits? 47 A. Look, from Luke, my business partner, telling me that


1 a few of the CFMEU people had been on site previously and 2 had a quick look at the books; didn't have any issues and 3 then they informed me later on that Dean Hall, himself, was 4 going to personally come out and have a look and he 5 couldn't find anything. 6 7 Q. When you say "they told me", who told you? 8 A. My employees. 9 10 Q. Your employees? 11 A. Yes. As well as Dennis Quade as well from BLOC. 12 13 Q. Were they on the site; did they see them to your 14 knowledge? 15 A. Yes. 16 17 Q. And Dennis Quade was on the site at the time? 18 A. Yes, he was. 19 20 Q. Paragraph 39, that is your opinion. Is this the 21 position - and tell me if this needs correction or is right 22 or wrong - but that is your opinion, rightly or wrongly, 23 but what that explains is why you don't want to sign an 24 EBA? 25 A. Correct. That is 100 per cent just my opinion. 26 27 Q. Looking at paragraph 40, are you able to identify any 28 of the jobs that you have missed out on? Are you able to 29 set that out in more detail? 30 A. Not so much, but, you know, at the end of the day, the 31 bigger jobs in town are held by the CFMEU and that pretty 32 much means with the builders, when you tender the jobs, and 33 all the rest of it, you sort of ask that question where you 34 stand with them and they say, "Oh, yes, we are inviting 35 them on to site", and you've got to play with them or no, 36 so yes, that means you do lose a lot of work under the EBA. 37 38 Q. Who gets the bigger jobs? 39 A. Probably the two larger -- 40 41 Q. In terms of formwork and steel fixing I mean. 42 A. IC and Pacific, you know. 43 44 Q. IC and Pacific? 45 A. Yes. 46 47 MR STOLJAR: Nothing further. Thank you, Commissioner.


1 2 THE COMMISSIONER: Mr Agius? 3 4 <EXAMINATION BY MR AGIUS: 5 6 MR AGIUS: Q. IC and Pacific are also the largest, are 7 they not, in the ACT? 8 A. Yes, I believe they are. Yes. 9 10 Q. How long have they been around? 11 A. I believe both of them are second generation 12 companies. 13 14 Q. So, they have had an opportunity to build up a 15 reputation through time that you haven't had? 16 A. Yes. 17 18 Q. They have had an opportunity to build up a reputation 19 for quality of work, but through no fault of your own you 20 haven't had either? 21 A. Correct. 22 23 Q. No surprise, then, that given that they are the 24 biggest and that they have had those two opportunities, 25 that they get most of the work? 26 A. Yes, that's fair enough to say. 27 28 Q. No surprise, then, that they are able to pay, or at 29 least are willing to pay EBA rates? 30 A. Yes. 31 32 Q. There are a few formal matters I want to deal with and 33 I'll deal with those first; that is, I need to take you to 34 some parts of your statement. Do you have a copy of it 35 there? 36 A. Yes, I do. 37 38 Q. You speak in paragraphs 12 through to 18 of the 39 conversation you've had with a person by the name of Tony? 40 A. Yes. 41 42 Q. Did you know him as Tony Vitler? 43 A. Just as "Tony" at the time. 44 45 Q. But you now know him to be Tony Vitler? 46 A. Yes, that is correct. 47

.20/07/2015 CFMEU ACT 412 T J ARMSTRONG (Mr Agius) Transcript produced by DTI

1 Q. I suggest to you that at no time during the meeting 2 did he ask you, or did he make a statement to you that he 3 could guarantee your company work? 4 A. Well, that's what he said, that he can guarantee me 5 work. 6 7 Q. I suggest what he said to you, in substance, was this: 8 that it was common for IC and Pacific to get the big jobs 9 but that still leaves the smaller jobs for companies like 10 yours? 11 A. Yes. 12 13 Q. He did say that? 14 A. Yes, but I continued to say to him after that, but, 15 you know, "I have tendered against IC and Pacific and 16 I have never seen anyone be told that they're doing this 17 job and I'm doing this job." That just comes down to the 18 price at the end of the day. 19 20 Q. That's your view, it comes down to the price? 21 A. Yes. 22 23 Q. You know unions have a right under the industrial 24 relations law that applies to engage in a bargaining 25 process; you know that is sanctioned by law? 26 A. Yes. 27 28 Q. Any attempt by the Union, whether it is in 29 conversation or any kind of protected action, you regard 30 that as improper, don't you? 31 A. Yes. 32 33 Q. And you regard that as harassment? 34 35 MR STOLJAR: Commissioner, I object to this: 36 37 Q. Any attempt by the Union, whether it 38 is in conversation or any kind of protected 39 action, you regard that as improper ... 40 41 I don't quite understand that question. 42 43 MR AGIUS: Well, the witness did -- 44 45 MR STOLJAR: Well, no, I'm not sure that he did, 46 Commissioner. 47


1 THE COMMISSIONER: I think "improper" is a word of 2 variable meaning. 3 4 MR AGIUS: I will withdraw it and put it another way. 5 6 THE COMMISSIONER: If we leave it here, it has 7 unsatisfactory possible results. If it is clarified, it 8 may overcome that difficulty. 9 10 MR AGIUS: I will put it another way. 11 12 Q. You regard any attempt by the Union, whether it is 13 just in a conversation with you, or any form of protected 14 industrial action, you regard that as harassment? 15 A. No. No. 16 17 Q. When I said you regard that has harassment -- 18 A. Sorry, I didn't understand you the first time. 19 20 Q. Well, why did you answer in the affirmative? 21 A. I didn't understand. 22 23 THE COMMISSIONER: Which gets us back to the problem of 24 what is meant by "improper". 25 26 MR AGIUS: Q. You didn't understand the question? 27 A. No. 28 29 Q. That's the case, though, isn't it, you're anti-union? 30 A. I wouldn't say that. 31 32 Q. You're against the idea of workers coming together and 33 collectively bargaining so that collectively they can get 34 better conditions of employment and better pay? 35 A. I'm not against that. 36 37 Q. But you won't sign an EBA? 38 A. I can't sign an EBA to the CFMEU asking me to hire - 39 pay these kind of wages that I see Pacific can afford to 40 pay that I can't afford to pay. You've got to understand, 41 you know, that they've got years and years worth of 42 materials and all the rest of it and, as I've said in my 43 statement, you know, all of my money that I pretty much 44 make goes back into building my business to get bigger and 45 bigger, to try and get bigger and bigger. 46 47 Q. You make $90,000 a year?


1 A. Pretty much, yes. 2 3 Q. Before or after tax? 4 A. No, that's, yeah, before. Gross for the year, 5 $90,000, pay your tax. 6 7 Q. $90,000 gross? 8 A. Gross, yes. 9 10 Q. Less tax? 11 A. Less tax. 12 13 Q. You pay your brothers $90,000 as well? 14 A. My brother Shane that works for me, he's my highest 15 paid employee, yes. 16 17 Q. What's his position? 18 A. He's sort of a qualified formworker that's generally a 19 good all-rounder in the construction industry, that 20 understands - you know, a good construction knowledge, so 21 he can do steel fixing, concrete walling systems, formwork, 22 et cetera. 23 24 Q. You have a degree? 25 A. No, I don't. 26 27 Q. Do you pay anybody else $90,000? 28 A. No, I don't. 29 30 Q. Sorry? 31 A. No. 32 33 Q. Do you employ labourers? 34 A. Yes, I do. 35 36 Q. On your books, as employees? 37 A. Yes, I do. 38 39 Q. Do you seek additional labour through labour hire 40 companies? 41 A. On larger projects I have in the past, yes. 42 43 Q. You take them on on the basis that they have an ABN 44 number and they are individuals contracting themselves out? 45 A. Yes, that is correct. 46 47 Q. Which means you avoid having to pay redundancy


1 payments, superannuation? 2 A. Yes. You pay them at a fixed lump sum hourly rate, 3 and it is up to them to pay the boys' entitlements, yes. 4 5 Q. But you know that they're not true contractors, don't 6 you? 7 A. As in? What do you mean? 8 9 Q. You employ them as labourers. You contract with them 10 and they provide their labour? 11 A. Yes. 12 13 Q. They don't provide any tools? 14 A. Yes, they have to provide all their handtools, yes, 15 you know. As a carpenter you need nails, pencils. 16 17 Q. I am talking about the labourers. 18 A. Labourers, same thing, they still need handtools and 19 all the rest of it. 20 21 Q. What sort of tools does a labourer need? 22 A. Pinch bars, hammers, tape measure, whatever. 23 24 Q. You tell them what work to do? 25 A. Yes. 26 27 Q. Or somebody on your job, on your behalf, gives them 28 instructions? 29 A. Yes, that is correct. 30 31 Q. But they're really providing just the skills of a 32 labourer? 33 A. The labour companies that I'd hire are normally 34 formwork carpenters. The same as what I see in Pacific 35 would use, the same sort of crews, so labourers not in a 36 sense. We hire formwork carpenters through hire crews. 37 38 Q. I was asking you about labourers. 39 A. No. 40 41 Q. You said you did take on labourers with ABN numbers? 42 A. There is one labouring crew out there, that's T&G, 43 that also works for IC and Pacific and they are labourers 44 that dismantle scaffolding. 45 46 Q. Just getting back to your meeting with Mr Vitler, 47 I suggest to you that he never made any statement to you


1 about donations? 2 A. That is not right. He did. 3 4 Q. I suggest that he never said anything to you that 5 would make you believe that he was inferring a bribe? 6 A. I believe he did. 7 8 Q. I suggest to you that he never said words, or words to 9 the effect, "I don't give a fuck about small businesses. 10 Go back and work for Pacific. If you can't beat them, join 11 them"? 12 A. He definitely said it, because it definitely upset me. 13 14 Q. I suggest to you that he never said to you words to 15 the effect, "If you want to be with the CFMEU, you have to 16 abide with the policy to get on to CFMEU sites"? 17 A. Sorry, can you state that again? 18 19 Q. I suggest to you that he did not say words to the 20 effect, "If you want to be with the CFMEU, you have to 21 abide with the policy to get on to CFMEU sites"? 22 A. That's what he said. 23 24 Q. I suggest to you that there was no discussion about 25 the CFMEU's affiliation with ACIRT? 26 A. There definitely was. 27 28 Q. Do you know that the MBA has an affiliation with 29 ACIRT? 30 A. I'm not sure. 31 32 Q. Do you know anything about ACIRT? 33 A. I believe it's a redundancy scheme that an employee 34 pays into. So if the employee is laid off, that he can 35 claim all on this money, if he's put out of work. 36 37 Q. Not that the employer pays into? 38 A. If you were under a CFMEU EBA, yes, you'd have to pay 39 into ACIRT which is for the employees' redundancy. 40 41 Q. Yes. But as the employer, you would be paying into 42 ACIRT? 43 A. Yes, you would be. That's correct. 44 45 Q. You know that under the Award, you have to make 46 provision for redundancy payments? 47 A. Yes. Under the Award of the Master Builders, that I'm


1 following, I would have to make redundancy payments as well 2 to my employees. 3 4 Q. If your company or business went broke, and you 5 weren't able to pay those payments, then that obligation 6 falls upon the government? 7 A. I was unaware of that. 8 9 Q. You're unaware of that? Do you know that if that 10 happens and you have been paying into ACIRT, the payments 11 are protected and the workers can obtain their entitlements 12 ACIRT? 13 A. I knew, yes, that ACIRT held the money and invested 14 the money for them, yes. 15 16 Q. Weren't you -- 17 A. I have no issues with ACIRT. I think it's actually 18 not a bad thing. 19 20 Q. But you didn't want to make payments into it? 21 A. Look, under the right circumstances and right EBAs, if 22 that's what my boys wanted, instead of being under the 23 award of the Master Builders and paying out X amount of 24 dollars when they leave, I think it's exactly the same 25 thing. In a business sense, actually, I think it's 26 probably better because the employee is paying that money, 27 as you say, and at least, you know, it's secure in case 28 I did go broke, or something like that, and the boys aren't 29 looked after. 30 31 Q. I suggest to you that Mr Vitler said to you words to 32 the effect that the industry rate for labourers was common 33 throughout the industry? 34 A. He said that the rates, yes, are common throughout the 35 industry. 36 37 Q. And I suggest that he never threatened to kick you off 38 any site or sites? 39 A. He definitely threatened to kick me off sites if I did 40 not sign an EBA. 41 42 Q. That conversation ended on quite amicable or friendly 43 terms, did it not? 44 A. It ended with me not being happy about his comments 45 about small business, yes, and we just said we'd talk at a 46 later date. 47


1 Q. You said you would consider signing the agreement; you 2 wanted to think about it? 3 A. Well, like I said, I have no issues with the carpentry 4 rates that were in it. I think a qualified carpenter, you 5 know, that produces a lot for a small business deserves 6 that kind of money. I think if you're going to get that 7 kind of staff off IC and Pacific, obviously you've got to 8 pay that equal kind of money. But where I disagreed with 9 the EBA was that, you know, a labourer was, I think, about, 10 from memory, about $7,000 or $8,000 underneath a qualified 11 carpenter and I just couldn't see that, and that's when 12 I said to the CFMEU I could look at an EBA because I don't 13 disagree with the actual carpenter's wage, I just disagree 14 with the labourer's wage. You're putting them both in the 15 same boat, pretty much. 16 17 Q. So that was the only thing you disagreed with? 18 A. Yes, the rates of the EBA. 19 20 Q. Did you suggest alternate rates? 21 A. Yes. Yes, I did. 22 23 Q. Just for labourers? 24 A. Yes. 25 26 Q. Otherwise you would have signed the EBA? 27 A. If the EBA had have been written to the agreement of 28 what I wanted to pay my carpenters and labourers, yes, 29 I would have signed an agreement. 30 31 Q. Well, didn't you just say that you accepted the 32 carpenters' rates? 33 A. Yes, I did, so I accept half of it. 34 35 Q. So the only thing preventing you, you say, from 36 signing the EBA was the rates set out in the EBA for 37 labourers? 38 A. Yes. 39 40 Q. Otherwise you accepted everything else? 41 A. Pretty much, yes. 42 43 Q. Did you ever say that? 44 A. Well, of course I did. I was sitting there talking to 45 Tony about the situation. 46 47 Q. And you said, "Look, but for that, I would sign the


1 EBA"? 2 A. "If you changed the labourers rates", and he said, 3 "I can't do that, mate. It's got to be consistent 4 throughout the industry." 5 6 Q. That's not what you say in your statement, is it? 7 8 THE COMMISSIONER: I am looking at paragraph 11. That 9 leads to one point of view. Are you concentrating on the 10 very last thing Mr Armstrong said? 11 12 MR AGIUS: I am taking the whole of the conversation in 13 total and -- 14 15 THE COMMISSIONER: I am not sure it is a fair comment. 16 17 MR STOLJAR: Paragraph 17, Commissioner. 18 19 MR AGIUS: I certainty didn't read that statement as 20 indicating that, but if the Commission accepts that that's 21 what he indicated in the statement, then I can't take it 22 any further. 23 24 THE COMMISSIONER: This is all a matter of instantaneous 25 impression. It just struck me that a fair bit of what he 26 was saying was, loosely speaking, consistent with his 27 statement, maybe not all of it, but, you know, hostility 28 towards a witness is sometimes appropriate; sometimes it is 29 not. I am not sure that it was called for in relation to 30 that particular strand of evidence. 31 32 MR AGIUS: Q. What you say in your statement at 33 paragraph 39 is: 34 35 I never want to sign an EBA with the CFMEU 36 or anything else because they are liars, 37 thugs and not worried about safety. 38 39 A. Yes, I say that now after all the dealings I've had 40 with them. 41 42 Q. So -- 43 A. The dealings started off not too bad, but over the 44 years they definitely haven't done anything to help in 45 safety, or work, or anything like that. 46 47 Q. Nothing to help your safety?


1 A. Nothing as in for the boys, or what I see of them 2 helping the industry. 3 4 Q. When you say "nothing" to help you with safety, isn't 5 it the fact that in your statement you refer to two matters 6 involving safety? 7 A. Yes. 8 9 Q. And isn't it the fact that even in your statement, 10 don't you concede that changes to safety were made as a 11 result of the intervention of the CFMEU? 12 A. Oh, look, I'm all for safety. I just don't see the 13 CFMEU pushing it. All I see the CFMEU pushing upon me is 14 money, money, money, memberships, this, and all the rest of 15 it. You know, they say there, before, like in my 16 statement, when Tony said, "Oh, we can help you get work", 17 what happened after that meeting at McDonald's, straight 18 away they went out to my sites at Erindale and Forrest and 19 threatened to close me down and told the builders that, 20 "We've got Class 1 ready to take your place." 21 22 Q. I suggest that never happened? 23 A. Well, it did happen. 24 25 Q. Let's get back to this issue about safety in your 26 statement at paragraph 39, that you 'never want to sign an 27 EBA with the CFMEU or anything else because [they're] 28 liars, thugs and not worried about safety'. They were 29 worried about safety on the two sites that you refer to 30 where safety was an issue, weren't they? 31 A. Look, the safety things that they were relating to 32 were very, very minor things, a few signs on gates, 33 something with a date wrong on SWMS, a few minor, minor 34 things and then at the end of the day, straight away, they 35 went back to trying to kick me off the job and putting in 36 Class 1 or another CFMEU approved company. 37 38 Q. Are you familiar with the site which was the subject 39 to action on 25 February 2013? 40 A. Was that the -- 41 42 Q. That is Claxton. 43 A. The Claxton one, yes. 44 45 Q. You know that after WorkCover visited that site, they 46 issued a number of improvement notices? 47 A. I was unaware of it, but, yes, I was told later, yes.


1 2 Q. You were aware of it -- 3 A. Minor issues. 4 5 Q. -- before you made the statement? 6 A. Minor issues. 7 8 Q. You were aware of it before you made your statement? 9 A. Sorry? 10 11 Q. You were aware, before you made your statement, that 12 WorkSafe had visited the site and had issued a number of 13 improvement notices? 14 A. Yes, I was aware. 15 16 Q. And you were aware that WorkSafe had issued two 17 prohibition notices? 18 A. No, I was unaware of that. 19 20 Q. Even to this day, you are not aware of that? 21 A. No. I was aware of a few safety things that they had 22 to fix, that I was told by the builder, and that was it. 23 24 Q. So you weren't aware that WorkCover issued prohibition 25 notices which prohibited the continuation of the pour of 26 the deck, that is, conducting work on the pour deck 27 including the pouring of concrete, and that the reason they 28 did that was because of concerns about scaffolding and edge 29 protection around the work site, and that it did not comply 30 with the Australian Standard, were you aware of that? 31 A. I was told this later, yes, that some things had to be 32 rectified and made to a higher standard. 33 34 Q. You said "minor things". Do you regard scaffolding 35 and edge protection a minor thing? 36 A. No, I do not. But I do believe there was edge 37 protection on the job and handrails everywhere. 38 39 Q. You don't regard the prospect of a worker dying 40 because he fell off the edge of this scaffolding or the 41 pour deck as a minor thing, do you? 42 A. Of course that's not a minor issue. 43 44 Q. You know that there are specific WorkSafe provisions 45 in relation to scaffolding and edge protection -- 46 A. Yes, of course there is. 47


1 Q. -- in relation to falling from heights? 2 A. Yes. 3 4 Q. That's not minor, is it? 5 A. As I said, I believe the edge protection was all 6 there. 7 8 Q. You know that in the prohibition notice, it was 9 indicated that Australian Standard 1735, which applied to 10 the pouring of concrete and the need for scaffolding and 11 edge protection to be safe, had, in the opinion of the 12 WorkSafe officer, not been complied with? You didn't know 13 that? 14 A. No. 15 16 Q. Do you know that the inspector directed Claxton 17 Constructions to comply with the requirements of an 18 improvement notice that had been issued on the day, and 19 ensure that all scaffolding and edge protection is 20 installed and maintained in accordance with Australian 21 Standard 1735? 22 A. I'm sure they would have done it. 23 24 Q. That wasn't my question. Did you know that that was 25 what the inspector had directed Claxton Constructions to 26 do? 27 A. You're trying to say that, what, there was no 28 handrails, no scaffolding on the building or -- 29 30 Q. I'm not saying that at all. I'm saying that what was 31 there was inadequate and in the opinion of the inspector, 32 it failed to comply with the Australian Standard? 33 A. Okay. That was his opinion. I thought, in my 34 opinion, that it was quite all right. But in saying that, 35 I am a formworker and a steel fixer. I was not on the deck 36 pouring the concrete. That is not my line of field. 37 I don't operate concrete pumps, concreters. 38 39 Q. Well, you say that the CFMEU is not interested in 40 safety and yet, on a site where your company provided the 41 formwork, there were a number of improvement notices and 42 two prohibition notices issued in relation to that formwork 43 in relation to the prohibition notices. 44 45 MR STOLJAR: I object to that. I don't know if it has 46 been established it was in relation to the formwork. 47


1 THE COMMISSIONER: I am having this difficulty: do we 2 have the actual document that you are cross-examining on, 3 the document that deals with Australian Standard 1735, for 4 example? 5 6 MR AGIUS: I don't have the Standard here. 7 8 THE COMMISSIONER: But do you have the document which 9 invoked the Standard and said there was a breach of it? 10 11 MR AGIUS: We only received the WorkSafe statement on 12 Saturday evening. I have spoken to my friend. We are not 13 in a position to meet Mr Bartlett's statement today, and 14 there are a number of things consequent upon the receipt of 15 the statement that we need to take instructions on. What I 16 am putting to -- 17 18 THE COMMISSIONER: All I am concerned with is this: you 19 are asking a person, who is not the direct object of 20 complaint, as I understand it, about the relationship 21 between the CFMEU and some other body that did have a 22 problem with work done by someone other than the witness's 23 organisation. Despite being in a Scottish mist swirling 24 around, a little ray of sun would come through if 25 I actually saw the statement. If you are not in a position 26 to hand it up now, fair enough. I would just like to see 27 it at some stage. 28 29 MR AGIUS: It is an annexure. We assumed, rightly or 30 wrongly, that when the Commission serves these statements, 31 they are also provided to you, Mr Commissioner. If we are 32 wrong about that, I apologise for that. 33 34 THE COMMISSIONER: We have an incredibly rigid internal 35 separation of powers. Watertight. I hear things last. 36 You say, Mr Bartlett, right. 37 38 MR AGIUS: Yes. 39 40 THE COMMISSIONER: What page or what exhibit number? Is 41 it JDB-3 and following? 42 43 MR AGIUS: It is Prohibition Notice 4304. 44 45 THE COMMISSIONER: Thank you. 46 47 MR AGIUS: I believe it is in JDB-3. It is on the screen.


1 2 THE COMMISSIONER: Yes. I have it. 3 4 MR AGIUS: Sorry, Mr Commissioner, I'll try to remove some 5 of the mist. At two places in the statement, the witness 6 speaks about the circumstances at that site. At 7 paragraph 27 he says: 8 9 A few days later Claw Construction was 10 halfway through the concrete pour for the 11 deck. The CFMEU turned up and stopped it. 12 13 THE WITNESS: That is a typo. That's supposed to be: 14 15 Claxton Constructions is halfway through 16 the concrete pour of the deck. 17 18 I had nothing to do with the concrete pour. 19 20 MR AGIUS: He says: 21 22 The CFMEU turned up and stopped it. 23 24 It turns out that the work stopped because there were two 25 prohibition notices issued by the WorkSafe inspector. 26 27 The second thing he says in his statement at 28 paragraph 39 is where he says: 29 30 The CFMEU were thugs and not worried about 31 safety. They just used safety as a method 32 of blackmailing businesses. 33 34 Our point is that he is being disingenuous because it is 35 apparent on the two sites which he refers to, where safety 36 issues came up at the instance of the CFMEU, remedial work 37 had to be done in order to ensure compliance with safety. 38 39 What I am doing is taking him through the notices that 40 were issued by the WorkSafe inspector which led to a 41 prohibition of the work on the site and led to the 42 improvement of safety. That inspector was there and the 43 issue arose in relation to this site because the CFMEU were 44 there with their permits, inspecting safety issues on site. 45 That was a site where his company was responsible for the 46 formwork, and that included the handrails. 47


1 THE WITNESS: No. The scaffolding company does the 2 handrails. I have nothing to do with this, the perimeter 3 scaffolding, I'm just doing formwork. That's what I'm 4 saying. 5 6 MR AGIUS: We have contrary instructions in relation to 7 that. That is a matter that can be debated later. 8 Nonetheless, this is a site where he admits to having 9 provided the formwork which was being used to support this 10 pour, and it was the pour that was halted as a result of 11 work and action taken by WorkSafe. 12 13 What we are seeking to do is to put to him that when 14 he makes his statement about the CFMEU not being worried 15 about safety, he knows he is lying. 16 17 THE COMMISSIONER: That is a very large claim. If you 18 want to make that claim, I think it should be done by 19 reference to specific passages in the documents instead of 20 generalised summaries of bits of them. If you want a 21 finding that this witness has been lying about something, 22 let's be fair and square and open about it. 23 24 MR AGIUS: I don't have to put that first. What I am 25 doing is demonstrating how his evidence -- 26 27 THE COMMISSIONER: Mr Agius, I think you should start 28 asking questions and not arguing with points I am making. 29 You were not taking him to the documents. If that is a 30 necessary part of the endeavour, by all means do so. What 31 is your next question? 32 33 MR AGIUS: Q. You know, don't you, that the CFMEU 34 intervened on the site where you were and had provided 35 formwork for Claxton Constructions on the basis of safety 36 issues - you know that, don't you? 37 A. Yes. 38 39 Q. You know, don't you, that as a result of their 40 intervention on that site, WorkSafe attended the site and 41 WorkSafe issued prohibition notices because of defects that 42 WorkSafe discovered? 43 A. Yes, but not to my work. To other subcontractors. 44 45 Q. You admit then, don't you, that the CFMEU had an 46 impact on safety on that site? 47 A. I'd say WorkCover had the impact.


1 2 Q. Do you deny, do you, that the CFMEU had any impact on 3 safety on that site in relation to the prohibition notices 4 and the notices for improvement that were issued? 5 A. As in -- 6 7 MR STOLJAR: Commissioner, there are two difficulties with 8 this line. The first is that it is very difficult for this 9 witness to make admissions or denials about circumstances 10 on a site that, on this particular occasion, he wasn't at 11 and didn't involve his work. That is the first problem. 12 13 The second problem is that my friend is glossing over 14 a significant factual controversy about what actually 15 happened on that site, which I won't go into in front of 16 this witness, but other witnesses will say how it is that, 17 or the reasons why the work safety officer involved did 18 what he did. I won't go into any more detail about that 19 now, but this is all an issue of controversy. In a sense, 20 one would need to go through all that with this witness if 21 one really wanted to put this proposition. 22 23 THE COMMISSIONER: Yes. Mr Agius, or Mr Stoljar, either 24 gravid in the second proposition, or perhaps ancillary to 25 it, is the question did Mr Armstrong actually know anything 26 about the dealings, if any, between the CFMEU, on the one 27 hand, and the WorkSafe authorities, on the other? If he 28 didn't, he may have offered perhaps an unduly wide or 29 extreme generalisation in paragraph 39, but he can scarcely 30 be called a liar. 31 32 MR AGIUS: He said before he made his statement, he was 33 aware. 34 35 THE COMMISSIONER: Yes, yes, aware, but aware of what 36 exactly? Did he see the report? 37 38 MR AGIUS: Of the prohibition notice. 39 40 THE COMMISSIONER: Did he go through the report or the 41 prohibition notices? What does "awareness" mean? 42 43 THE WITNESS: I don't believe it had -- 44 45 THE COMMISSIONER: Sorry, Mr Armstrong, deeply tempting 46 though it must be for you to form a fourth party to this 47 debate we are having, it really is best if you just listen


1 to Mr Agius' questions. Mr Stoljar can ask you questions 2 later if he feels it necessary to do so. 3 4 MR AGIUS: Q. Mr Armstrong, at paragraph 27 of your 5 statement you say, as you have now corrected it, Claxton 6 was halfway through the concrete pour for the deck, "the 7 CFMEU turned up and stopped it." On what basis do you say 8 that? 9 A. The foreman, Bob Rossi, rang me that morning and said 10 that, "The unions have come out here and they've called 11 WorkCover and that they're trying to stop the pour." 12 13 Q. Yes. Is that all? 14 A. Yes. 15 16 Q. You had no more knowledge than that? 17 A. That morning, no. 18 19 Q. At the time you made this statement, what knowledge 20 did you have that permitted you to say, and to adopt under 21 oath today, the words "The CFMEU turned up and stopped it", 22 that is, the concrete pour for the deck? What information 23 did you have that permitted you, you believe, to say that? 24 A. Well, after the incident that occurred, I was speaking 25 to obviously the owners of the building and all the rest of 26 it, and I was asking why was it stopped and they said there 27 was a few minor issues with safety, what you're saying, 28 WorkSafe and that, and that was it. 29 30 Q. Who told you that the CFMEU stopped the pour? 31 A. It was WorkCover that stopped the pour, I believe. 32 33 Q. Why have you said in your statement that the CFMEU 34 turned up and stopped the pour? 35 A. Because I believed the CFMEU put a lot of pressure on 36 WorkCover to stop the pour. 37 38 Q. That's not what you say in your statement, is it? You 39 say, "The CFMEU turned up and stopped it." 40 A. Well, look, I don't know the legal - who actually 41 writes the tickets or whatever, whether it was the CFMEU or 42 WorkCover. I was aware, through the builders, that they 43 said, "The CFMEU have stopped up pouring concrete", that's 44 all. 45 46 Q. Just a few moments ago you said WorkSafe stopped the 47 pour.


1 A. I just said I'm not sure who has the right of 2 authority to stop the pour, whether it was the CFMEU or 3 WorkCover, which one it was. 4 5 Q. At line 30 on page 428 line 31, I asked you: 6 7 Q. Who told you that the CFMEU stopped 8 the pour? 9 10 And your answer was: 11 12 It was WorkCover that stopped the pour, 13 I believe. 14 15 THE COMMISSIONER: That is part of his answer. 16 17 Q. Mr Armstrong, I think I interrupted you while you were 18 trying to answer counsel's question. Do you want to 19 elaborate? 20 A. I'm just wondering how to answer the question. All 21 I know is that the pour was stopped because of a few minor 22 safety issues, the builder told me that, and it was due to 23 the CFMEU. Whether or not they directly were the ones that 24 stopped it, or WorkCover, I'm not sure. 25 26 MR AGIUS: Q. And were you not sure, when you put in 27 your statement, the words "The CFMEU turned up and stopped 28 it"? 29 A. I know the CFMEU were out there, so it must have been 30 CFMEU or WorkCover. 31 32 Q. I suggest to you that you deliberately lied in your 33 statement when you said, "The CFMEU turned up and stopped 34 it", in relation to this pour? 35 A. Well, I did not lie. 36 37 Q. If you were uncertain, why didn't you say so? 38 A. I know the pour was stopped. Whether or not it was 39 the CFMEU or WorkCover, how does that affect anything? At 40 the end of the day, the concrete pour was stopped. 41 42 Q. Well, if you say that the CFMEU is not interested in 43 safety, it may affect your state of mind? 44 A. I disagree. You know, prior to all these other ones, 45 you know, you've been on other sites in Erindale, and all 46 the rest of it, and, you know, no safety came to me. The 47 CFMEU's never asked me to do something or, you know, give


1 me any information about safety at all. Pretty much all 2 they've said is, "You're not to work on this site, you're 3 not to work on this site, and we've found another formwork 4 company that can work on these sites" to the builders. 5 6 Q. Did you ever see the first engineer's certificate in 7 relation to the bracing and scaffolding that was holding up 8 the formwork that your company had provided on that site? 9 A. I always get a copy of my formwork inspection just to 10 certify my formwork material. 11 12 Q. So what about my question? Did you see a copy of a 13 certificate signed by an engineer in relation to the 14 bracing and support work for the formwork? 15 A. Yes, I believe my engineer Pierre Dragh wrote out a 16 formwork inspection ticket for that job. 17 18 Q. Do you know that WorkSafe allege that he had never 19 inspected the work himself and that he had relied upon the 20 builder to inspect the work? 21 A. I don't believe that's true. 22 23 Q. Do you know that WorkCover required a further 24 engineer's certificate? 25 A. I do believe there was something to do with the 26 ground, or a separate engineer that needed to be brought in 27 for ground something, yeah, but it doesn't really relate to 28 me. 29 30 Q. Do you agree that the initiation for all of this 31 activity on this site to do with safety was because of the 32 intervention of the CFMEU? 33 A. Could you restate that question, please? 34 35 Q. Do you agree that the reason for all of this activity 36 to do with safety on the site in relation to this incident 37 was to do with the intervention of the CFMEU? 38 A. Yes, it could have been, yes. In saying that, too, 39 WorkCover's just up the road from them, so -- 40 41 Q. Yes. You then withdraw that part of paragraph 39 of 42 your statement in which you say that the CFMEU is not 43 worried about safety? 44 A. I will not withdraw that statement. 45 46 Q. Well, you withdraw that part of your statement where 47 you say:


1 2 They just used safety as a method of 3 blackmailing businesses and people to sign 4 up with them. 5 6 A. Could you restate that again? 7 8 Q. You withdraw the next sentence that I have just read 9 to you? 10 A. No, I won't withdraw it. 11 12 Q. Can I take you to paragraph 20 of your statement. In 13 the third line, there is a reference to: 14 15 ... safety signs not being in place, one of 16 which included a safe evacuation point. 17 18 Would you agree that the absence of a designated safe 19 evacuation point is not a minor matter in relation to 20 safety? 21 A. No, that's a major matter and you definitely need to 22 have it, and hopefully they rectified it. 23 24 Q. Would you agree that having updated SWMS documents, 25 that is, Site Work Method Statements, is a significant 26 safety measure on a site? 27 A. Definitely, yes, they are. 28 29 Q. In relation to what you've said at paragraphs 35 and 30 36 of your statement, I just want to understand what your 31 relationship with that job was. You have told us that 32 Gungahlin had subcontracted to you, or were intending to 33 subcontract to you, to provide the steel fixing on that 34 site? 35 A. That is correct. From what I understood of it, with 36 Richard Lewis, that Fulton and Hogan were looking for 37 mainly a subcontractor to do all formwork, steel fixing and 38 a big range of things. So, together with Gungahlin 39 Concrete, me doing some steel fixing and some other people, 40 that we could go in as a sort of package deal and hopefully 41 get some work on the job. 42 43 Q. Did you understand that there would be a separate 44 contract between Fulton and Hogan with your company, or 45 that they would contract with Gungahlin and you would 46 subcontract the steel fixing? 47 A. That sort of never got that far, but it was under the


1 - either way, whether it was to go through Gungahlin or 2 whether direct through me. 3 4 Q. So when you say "we had not signed a contract", which 5 contract were you speaking of? 6 A. Just going on what Richard had told me from Gungahlin, 7 that they were very close to getting on site and needing 8 steel fixers and that they were going to sign a contract 9 with them, or something, in the next couple of days and 10 that's why he asked me to induct a couple of boys so we 11 were ready to go with some steel fixing if it comes. 12 13 Q. He told you that Gungahlin was within a few days 14 expecting to sign a contract with Fulton and Hogan? 15 A. Yes. 16 17 Q. So you were not expecting to sign any contract? 18 A. Well, like I said, I hadn't really worked out the 19 minor details of it all with Richard yet, and whether or 20 not I was going to go direct through Fulton and Hogan or 21 whether it went through Gungahlin. 22 23 Q. What you say is: 24 25 We had not signed a contract. However, we 26 were expecting to sign it about a week 27 later. 28 29 A. Yes. 30 31 Q. What contract are you referring to? 32 A. To do some steel fixing on the job. 33 34 Q. With whom? 35 A. With either direct work for Gungahlin or Fulton and 36 Hogan. 37 38 Q. Did you know that Gungahlin had an EBA with the CFMEU? 39 A. I was unaware of it. 40 41 Q. Did you know what - well, I withdraw that. If you 42 weren't aware that they had an EBA, then I take it you 43 weren't aware of any obligations they had under the EBA in 44 relation to any subcontracts that they let? 45 A. Like I said, we never got to that part of it, so -- 46 47 Q. Who got the contract for the steel fixing?


1 A. I'm not sure. 2 3 Q. I'm sorry, I should have said "subcontract" for the 4 steel fixing? 5 A. I have no idea. 6 7 Q. No idea. So you never spoke to Gungahlin about it? 8 A. No. 9 10 Q. And you never spoke to them about why you missed out? 11 A. No. 12 13 Q. You appreciate, don't you, that so far as the law, in 14 relation to workplace health and safety, doesn't 15 distinguish between construction work, that is, conducted 16 on residential developments as opposed to commercial 17 developments, you appreciate that? 18 A. Sorry, that what - WorkCover -- 19 20 Q. Work, health and safety law does not distinguish 21 between -- 22 A. Residential or commercial? 23 24 Q. -- residential and commercial developments? 25 A. I was unaware of it. 26 27 Q. You're not aware that the Work Health and Safety Act 28 applies equally to commercial -- 29 A. I would think it would be, yes, residential and 30 commercial. 31 32 Q. -- developments and residential developments? 33 A. It should be the same. 34 35 Q. It should be. Were you aware that it is? 36 A. I am now. 37 38 Q. Is the answer to my question that you were not aware 39 until I informed you? 40 A. I wasn't aware, no. 41 42 Q. So you were not aware that when you were doing 43 residential work, you were still bound by the obligations 44 that you had under the Work Health and Safety Act? 45 A. I've treated it all the same, whether it's 46 residential, commercial, I've always tried to abide by my 47 SWMS and my insurances, so --


1 2 Q. Were you aware that the CFMEU, members of the CFMEU 3 who had permits under the Work Health and Safety Act had a 4 right to enter a site to investigate a suspected health and 5 safety breach? 6 A. Yes, I was made aware of that later on, through the 7 Master Builders, that they were allowed access to site if 8 there was an immediate safety breach. 9 10 Q. In terms of the chronology as we have it in your 11 statement, when was it that you became aware of that? 12 A. Probably after my first dealings with the CFMEU, but 13 in saying that, the first lawyer that I spoke to at the 14 Master Builders, which was Mike Baldwin, said that, you 15 know, a lot of laws have changed in the last couple of 16 years and I think at that moment, looking back on it now, 17 about a year or two ago, that's what I was informed, that 18 if there was an immediate safety breach on site, that the 19 CFMEU have access to a site. 20 21 Q. So that was not before a year or two ago? Can you be 22 more specific? 23 A. I can't be more specific than that. I really don't 24 know when it was. A couple of years ago. 25 26 Q. It is a small matter but, in your statement, you refer 27 to this interrupted concrete pour and you put it in the 28 time frame of October 2013. Just for completeness, would 29 you agree that it actually was in February of 2013? 30 A. Yes, I do agree. 31 32 MR AGIUS: Thank you. 33 34 THE COMMISSIONER: Mr Morison, any questions? 35 36 MR MORISON: No, thank you, Commissioner. 37 38 THE COMMISSIONER: Mr Stoljar? 39 40 MR STOLJAR: Nothing further. Thank you, Commissioner. 41 42 THE COMMISSIONER: Is it in order for Mr Armstrong to be 43 excused from further attendance? 44 45 MR STOLJAR: Yes, no objection. 46 47 THE COMMISSIONER: Mr Armstrong, you came here on a


1 summons to give evidence. You are excused from further 2 attendance on that summons. Thank you for coming today. 3 You may leave the witness box now. 4 5 THE WITNESS: Thank you. 6 7 <THE WITNESS WITHDREW 8 9 MR STOLJAR: The next witness is Mr Rossi. 10 11 <ROBERT STEPHEN ROSSI, sworn: [12.03pm] 12 13 <EXAMINATION BY MR STOLJAR: 14 15 MR STOLJAR: Q. Your full name is Robert Stephen Rossi? 16 A. Yes. 17 18 Q. You are a resident of the ACT? 19 A. No. 20 21 Q. New South Wales? 22 A. Yes. 23 24 Q. Just nearby? 25 A. No. 26 27 Q. Where are you? 28 A. Batemans Bay. 29 30 THE COMMISSIONER: That seems to be a rather unsuccessful 31 line of questioning so far. 32 33 MR STOLJAR: Q. You are a bricklayer by trade? 34 A. By trade? 35 36 Q. Yes. 37 A. I grew up as a bricklayer, yes. 38 39 Q. You've prepared a witness statement of 9 July 2015? 40 You've done a witness statement? 41 A. I have done a witness statement. I'm not sure of 42 the -- 43 44 Q. Do you have a copy of it there? That's all right. 45 I'll give you another copy. That may be the simplest. 46 A. No, I've got one. 47

.20/07/2015 CFMEU ACT 435 R S ROSSI (Mr Stoljar) Transcript produced by DTI

1 Q. You've got one there? Is the content of your 2 statement true and correct? 3 A. As far as I know, yes. 4 5 MR STOLJAR: I would ask that Mr Rossi's statement be 6 received into evidence. 7 8 THE COMMISSIONER: Yes. Mr Rossi's statement is received 9 into evidence. 10 11 STATEMENT OF ROBERT STEPHEN ROSSI DATED 09/07/2015 12 13 MR STOLJAR: Q. You've been in the building industry for 14 42 years? 15 A. Yes. 16 17 Q. You've got a builder's licence in the ACT? 18 A. Yes. 19 20 Q. You say you're a builder and site foreman for Claxton 21 Construction. How long have you been doing that? 22 A. About four years now. 23 24 Q. What were you doing before then? 25 A. Building houses down the bay, Batemans Bay, just spec 26 homes and bricklaying, of course, that's my trade. 27 28 Q. You describe in your statement an incident when 29 Claxton was on a building site in Flemington Road, 30 Mitchell. You were the site foreman on that day? 31 A. I was. 32 33 Q. The first incident that happened was on 1 February, 34 but just going back a bit, why don't you tell us a bit 35 about the actual job? Was it residential and commercial 36 units? 37 A. It was commercial. 38 39 Q. Commercial units? 40 A. Commercial units. 41 42 Q. How many? 43 A. Seven. 44 45 Q. In paragraph 7 of your statement - do you have that in 46 front of you? 47 A. Yes, I've got it crossed out here on my bit of paper.


1 I crossed out the "residential" and I put "commercial" 2 under it. 3 4 Q. In paragraph 7, you want to change "residential" to 5 "commercial"? 6 A. Yes. 7 8 Q. Have you made any other corrections to your statement? 9 A. Not today, no. Not on this statement, no. 10 11 Q. You say on 1 February you were away and somebody rang 12 you. 13 A. Yes. 14 15 Q. Why don't you tell us what happened. You were away in 16 Sydney, or somewhere, were you? 17 A. No, my father was sick. He got pneumonia. He was 92 18 years old at the time, he's 94 now. I got an urgent call 19 to go to Griffith, that's where I come from. 20 21 Q. Right. 22 A. Then I was by his bedside and I got a call on the 23 Friday to - that the Union had come on site, so they shut 24 the site, not the Union but the boys shut the site down 25 because there was no first-aid officer on site; that's what 26 they told me. 27 28 Q. Right. 29 A. Okay. So I came home on the Friday, my father was 30 feeling better, so I was able to leave the hospital. With 31 my contacts in the bay, I rang up the first - the bloke who 32 does the - administers the first-aid courses and he was 33 happy to give me a - I paid a bit - paid extra for it, but 34 he was happy to give me a course on the Sunday. So, I 35 returned on the Monday and I had a first-aid certificate 36 updated. 37 38 Q. Had you had one before? 39 A. I'd had one before but I updated my existing one, or 40 they just gave me a new one. 41 42 Q. How long did work stop on the site? 43 A. The boys - I think it was in the afternoon. They 44 were - nobody closed them down, they closed it down 45 themselves, only for a couple of hours, but they gave me 46 the phone call and I understood that it was the first-aid 47 certificate. Now, I rang the fellow the other day to


1 confirm what I'd said and he said, "No, it was the 2 first-aid box", which I didn't know at the time. I still - 3 till today - apparently, but the first-aid box is always - 4 there's always a first-aid box in the office, that's the 5 first thing I do when I set up an office. So, there was a 6 first-aid box in there and one of the guys that was on site 7 that day did have a first-aid certificate, but they 8 panicked and they were happy to close the site down for a 9 couple of hours, leave early. 10 11 Q. So there was someone with a certificate and there was 12 also a first-aid box? 13 A. There was definitely a first-aid box in the office and 14 when I talked to Brent Wallis, he said there was someone on 15 the site at the time that did have a first-aid certificate, 16 but it was their choice to close the site down. 17 18 Q. Anyway, you came back on 4 February and then work just 19 continued until the 25th. I just want to ask you some 20 questions about that. 21 A. Mmm-hmm. 22 23 Q. You deal with that at paragraph 11 and following. You 24 were on site with Clive from Multi-Crete who was doing a 25 pour, and you say: 26 27 I observed four to five Union officials 28 come on site. 29 30 Had you had any notice that they were going to come on the 31 site? 32 A. No, I had no notice. 33 34 Q. You say that one of them, this is in paragraph 15, 35 went over to the formwork, you say, and grabbed one of the 36 handrails. Just tell us what you saw and what you heard. 37 A. Paragraph 15? 38 39 Q. Yes. 40 A. "One of the officials ... despite my instructions". 41 Yes, that's right. When I walked - I allowed them to come 42 on site. I told them to stay with me. When we walked on 43 the site, they just scattered. They walked all over the 44 place, blokes - I called them back, they didn't listen, 45 they just kept going. Then I seen one of the - the big 46 Maori fellow, I don't know if he was Maori but he looked 47 like a Maori, grabbed hold of a handrail and just started


1 shaking the handrail with all his might. This fellow is 2 about 120 kilos or 100-plus, but he started shaking it and 3 saying, "This is not safe." And all I can remember, I was 4 saying, "It's not a swing", and - to the effect of those 5 words, and I wouldn't have said, "It is not a swing", 6 I would have put an f-word in between all that, but that's 7 all I remember him saying. 8 9 Q. So they looked through the paperwork, did they? 10 A. When they came through, I let them go through all my 11 paperwork. They didn't find nothing wrong with the 12 paperwork - them, themselves. Later on I think WorkCover 13 comes through and we done a lot of adjustments. 14 15 Q. We'll get to that. WorkCover arrived on the site. 16 You deal with that at 18. You say you can't remember his 17 name and you heard him say, did you, the words that you 18 have set out in paragraph 18, about the pour? Why don't 19 you just tell us the story, what did you see? 20 A. Paragraph 18. Yes, no, that's - yes. I talked to him 21 and I asked him, "What do we do?" He said, "You can 22 continue the pour." That was his words. 23 24 Q. Right. And he'd already looked around the site and 25 talked to the CFMEU officials? 26 A. He'd been there, he'd looked at what was going on, 27 yes. 28 29 Q. Had he looked at paperwork as well? 30 A. No. Not at that stage, no. 31 32 Q. And then what happened? 33 A. That's when Dean Hall approached him and started going 34 off the Richter Scale - it just got - he started poking him 35 saying, "If something happens on this job and someone gets 36 hurt, you'll be going to gaol". It was odd, but he was a 37 bit more aggressive than that. 38 39 Q. How far away from the WorkCover fellow was Dean Hall? 40 A. Oh, he was right in front of him. 41 42 Q. Where were you? 43 A. I was to the side. 44 45 Q. You were sort of jabbing with your forefinger. Is 46 that what he was doing? 47 A. Yes. He was pointing at him, like that.


1 (Indicating). 2 3 Q. Was he raising his voice? 4 A. Yes. He was going off. In my words, just going off, 5 cranky, "You're ..." (makes noise). 6 7 Q. What did the WorkCover fellow say? 8 A. He didn't say much at all. He was just shaking. 9 10 Q. He was what? 11 A. Shaking. 12 13 Q. He was shaking. How could you tell? 14 A. You could just see he was put back, he was just -- 15 16 Q. You're raising your hands and leaning back in the 17 chair. Is that -- 18 A. Yeah. Well, I know - if it's me, I'm a different sort 19 of person. If someone does that to me, I'll react. He 20 didn't react. He went backwards and just sort of -- 21 22 Q. Right. 23 A. You know, I'm a different sort of person. If someone 24 points fingers at me, I point them back, but -- 25 26 Q. What happened after that? 27 A. I can't remember what happened but things calmed down 28 and then I went over to talk to the WorkSafe officer and 29 I said, "Look, if you want, I'll make a few phone calls, 30 engineers and Ultrafloor" - the company - "and see if this 31 job can be shut down. Would you like me to do it?" He was 32 a bit shaken. He said, "Yes", and so I jumped on the phone 33 and made the phone calls and got the phone calls - got the 34 okay to shut the job down, so we shut the job down. 35 36 Q. He initially said it can continue and then there was 37 the yelling, and then he said "Shut it down" -- 38 A. Yes, that's right. 39 40 Q. -- is that the sequence of events? 41 A. Yes. 42 43 Q. Did they then do a tour or something? You tell me, 44 what happened then? 45 A. Then - I can't really remember. We ended up closing 46 the job down once we got an okay from the engineers, but 47 I can't remember the sequence or how it happened. There


1 was no - there was no hostility towards me. I was even 2 talking to one of their guys, having a chat with him, you 3 know, but they did put the pressure on the WorkCover 4 fellow. They put him - yes. 5 6 Q. If you come through in your statement to the first 7 attachment, that's a page from your diary, is it? 8 A. Okay. Where's -- 9 10 Q. It's got RSR-1, somebody's written on it? 11 A. Yes. Yes. 12 13 Q. Tell me about your diary. You fill it in yourself, 14 what, at the end of each day or what? 15 A. At the end of each day I just make notes. There it is 16 there. (Indicating to notebook). 17 18 Q. You've brought in the whole thing. Okay, so you just 19 fill it in? 20 A. Yes. I just make them very short, very quick, just 21 what happens in the day. Sometimes I put just hours the 22 blokes worked. Sometimes I just say, "Bricklayers worked 23 today. Some formworkers worked today". I don't make a big 24 diary. These days I make a lot more - a lot more entries 25 on my diaries, but at this stage I wasn't, no, but I still 26 made notes. 27 28 Q. Well, let's just have a look. There is "7-6", is that 29 a time thing, or what's that? 30 A. What day are we looking at? 31 32 Q. The 25th. 33 A. The 25th. Okay, that's that one. Okay, yes. 34 35 Q. So "7-6", what's that, or do you not know? 36 A. 7-6? 37 38 Q. Yes. 39 A. That's the hours I worked. 40 41 Q. Oh, okay. And then you've got: 42 43 Started concrete pour. 44 45 A. Yes. 46 47 Q. Then:


1 2 Union came on site. I called WorkCover 3 after we closed site down. Put cold joint 4 in. 5 6 That was the way of keeping -- 7 A. That's the way I've just written the day, right? 8 9 Q. But the cold joint is the suggestion to interrupt the 10 concrete pour? 11 A. Yes. 12 13 Q. Put the cold joint in? 14 A. Yes. 15 16 Q. And then you've put: 17 18 Union stop job. Then WorkSafe said go 19 ahead. Then Union threatened WorkSafe by 20 saying if something goes wrong they will 21 suffer consequences. 22 23 Is that what you've written? 24 A. Yes. 25 26 Q. Then you've put: 27 28 So job shut down. 29 30 A. Yes. 31 32 Q. And then you've put: 33 34 After went to Crace and swept floors. 35 36 That is just something else, is it? 37 A. I just went to another job, yes. 38 39 Q. That was a note you wrote, what, on the evening of the 40 25th? 41 A. Yes. 42 43 Q. The next day - come back to your statement -- 44 A. Yes. 45 46 Q. -- the 26th, they came back again? 47 A. Yes.


1 2 Q. And the fellow that you called the large Maori bloke, 3 he was the one who shook the handrail, was he? 4 A. I think that was him, yes. 5 6 Q. Do you know his name at all? 7 A. No. At the time, no. 8 9 Q. Then you had a meeting with them and Zoran in the site 10 office. Do you remember who else was there, or was anyone 11 else there? 12 A. I think it was just me and Zoran and I think it was 13 just the Union officials. 14 15 Q. Was Dean Hall there? 16 A. I don't think Dean was in there, no. No. 17 18 Q. Do you remember who the three or four were? 19 A. Not really. I know the big Maori fellow, he was the 20 same fellow that was there that was shaking the -- 21 22 Q. The rail -- 23 A. -- the rail. You know the main - I think they called 24 him Pifita [sic] or something, I'm not sure, yeah. 25 26 Q. Anyway, you had this meeting. You say: 27 28 I don't remember the specifics but I made 29 notes in my diary straight after the 30 meeting. 31 32 Let's go to that page 33 A. Okay. Yes. 34 35 Q. That's 26 February, a Tuesday? 36 A. Okay, yes. 37 38 Q. Just at the top of the page you've got: 39 40 Went to job open up. Nathan fixing 41 handrails. 42 43 That was fixing it up after the WorkCover people had looked 44 at it, was it? 45 A. Yes. 46 47 Q. Then you say:


1 2 Had meeting with Union in office. They 3 want us to work with them, eg, get rid of 4 Claw Constructions or we going to make life 5 hell for us. 6 7 When it says "We going to make life hell for us", did you 8 mean they were telling you, "We're going to make life hell 9 for you", ie, Claxton? 10 A. For us, yes. 11 12 Q. Is that what you mean? 13 A. They were going to make life hell for us, which is 14 Claxton, yes. 15 16 Q. Did they say how they were going to make life hell for 17 you? 18 A. No. 19 20 Q. What was the problem with Claw Constructions, did they 21 tell you? 22 A. No. 23 24 Q. They just said they wanted them off? 25 A. They wanted them off, didn't want them. We didn't 26 have no issue with them. There was no problem. 27 28 Q. Then you say: 29 30 If we don't work in together. 31 32 Do you recollect what was said about that? 33 A. I can vaguely recollect, yes. They asked us to use 34 their trades, or they recommended a lot of their trades and 35 "we can work in together", you know. 36 37 Q. I see. 38 A. So, all I remember is that - I don't - it's going back 39 a long time, I don't remember - I've got jobs to run, I've 40 got 20-odd blokes running around all the time. Yeah, 41 I just vaguely remember in the day they said, "Can we use 42 your trade - use our trades, we'll get on together." 43 44 Q. By their trades you mean their contractors? 45 A. Yes. Yes, their trades, or the people they can give 46 us names of people. They never gave us any names and we 47 didn't want them.


1 2 Q. All right. In 28 you said, did you: 3 4 How about we put a tape on and record what 5 you just said ... 6 7 And they said, "No."? 8 A. Yes, I did mention that. 9 10 Q. Then you had a talk to Fair Work Building Construction 11 on 4 March? 12 A. Yes. 13 14 Q. Then on 6 March they turned up again but you - well, 15 just tell us what happened on that day? 16 A. That's the day we resumed the pour again. They came 17 in trying to stop the pour again, yelling and screaming, 18 I don't know what about, but this and that. I can't 19 recollect their wording of what they've said or how they 20 said it, but they were on site and the boss kept saying, 21 "Keep back. Get off our site, you've got no" - and I did 22 say at the time, I said, "Tell me where it's unsafe", 23 I said, "I'll take one of youse up there", and they 24 wouldn't do nothing. They kept yelling and screaming and 25 calling, trying - trying - I don't know what they were 26 trying to do, but, yeah. 27 28 Q. Do you know who was there, do you remember? 29 A. Dean Hall was there again, that's the only one 30 I reckon, and the big Maori fellow. I don't know the other 31 couple that were there, but they - I don't know, made 32 them - made their presence shown, you know, and at the time 33 kept me down there trying to - because the boss doesn't 34 speak real good English, but I stayed there and defended 35 the place, you know, sort of thing, as much as I can 'cause 36 I don't take no rubbish off nobody. The boss will fold, 37 you know, so I stayed there and sort of kept the line. 38 39 At the end, they just left and - because Zoran said, 40 "Get off our land", because he owned the block next door as 41 well, so they just jumped in their ute and they took off 42 and they said, "You'll be hearing from our solicitors". 43 44 Q. And did you hear anything further? 45 A. That was the last I heard. 46 47 Q. You have your diary note for the 6th on the last page


1 and you haven't put that down. Why is that? 2 A. Which one's that one? 3 4 Q. Just the very last page. 5 A. 36? 6 7 Q. Wednesday, 6 March? 8 A. 6 March. Okay. I'll see if I can remember something. 9 Okay. Let's see what - that was the day - that was the 10 last day they came. 11 12 Q. Yes. That's what you say in your statement, yes. 13 A. That was the last I seen them. That was the day that 14 I seen them last. 15 16 Q. All right. Did you ring Troy Armstrong? Going back 17 to the 25th -- 18 A. Okay, yes. 19 20 Q. -- that's the day that the concrete pour was stopped, 21 do you remember whether you rang Troy Armstrong? 22 A. I don't remember but I may have done, yes. 23 24 MR STOLJAR: Nothing further. Thank you, Commissioner. 25 26 THE COMMISSIONER: Yes, Mr Agius. 27 28 <EXAMINATION BY MR AGIUS: 29 30 MR AGIUS: Q. Mr Rossi -- 31 A. Yes. 32 33 Q. -- I am just trying to get a clear picture of what you 34 are referring to in paragraph 8 of your statement. 35 A. I'll see if I can have a look here. Yes, okay. 36 37 Q. I am not challenging you, because we weren't there, 38 but I am just trying to understand what you were told and 39 what you did as a consequence and then what you learnt 40 later. 41 A. Sorry, what I? 42 43 Q. What you learnt later. 44 A. Okay, yes. 45 46 Q. Brent telephoned and told you that the Union had 47 arrived on site and they wanted him to shut the site down

.20/07/2015 CFMEU ACT 446 R S ROSSI (Mr Agius) Transcript produced by DTI

1 because your recollection was that he said to you that 2 there was no first-aid certificate? 3 A. That's right. That's what my recollection was, yes, 4 so on - I came back on the Friday and I rang up one of my 5 friends or associates that I know that does first-aid 6 certificates, and he agreed to see me on the Sunday, so -- 7 8 Q. I understand that. 9 A. Yes, okay. 10 11 Q. We know what you did then. 12 A. Yeah, no problems. 13 14 Q. But when Brent said, "No first-aid certificate", what 15 did you understand that to mean? 16 A. That there was no-one on site that had a first-aid 17 certificate. 18 19 Q. At that time did you say to Brent, "Well, yes, there 20 is, X is there" or "Y is there and he's got a first-aid 21 certificate"? 22 A. No, I didn't, because there was no-one on site except 23 for them at the time. 24 25 Q. Did it occur to you then that in fact he was right, 26 that there was at that time nobody on site with a first-aid 27 certificate? 28 A. I have no idea. 29 30 Q. But did you believe that that's what he thought? 31 A. I believe that that's what he thought. 32 33 Q. So then you, very industriously, made special 34 arrangements to get yourself a refresher course and to get 35 yourself as the first-aid officer re-certified? 36 A. Yes. 37 38 Q. What you learnt later was that there was a certified 39 first-aid person on site on the day Brent rang you? 40 A. I found this out only last week when I rang 41 Brent Wallis. 42 43 Q. Is that the same Brent? 44 A. The same Brent, and he's the one who informed me then, 45 and he said he's got some sort of notes about it as well, 46 but I only knew of that last week. 47


1 Q. Have you seen his notes? 2 A. I have not seen his notes, no. I just made a phone 3 call to him last week. 4 5 Q. You would agree, though, wouldn't you, that if the 6 Union had been told that there was no-one on-site with a 7 first-aid certificate, then the site shouldn't be 8 operating? 9 A. Yes, that's - yes. Yes. 10 11 Q. That's standard practice? 12 A. Standard practice, yes. 13 14 Q. Can I bring you to 25 February. 15 A. 25 February. 16 17 Q. That starts on page 2 of your statement. 18 A. Oh, yes. Yes. 19 20 Q. This is the concrete pour and the visit by the 21 WorkSafe person to the site. 22 A. Yes. 23 24 Q. You have spoken of Dean Hall going to, you say, the 25 WorkCover official, but that's the person from WorkSafe, 26 the inspector who had come down to the site? 27 A. Yes. 28 29 Q. I suggest to you that what Dean Hall said to him was 30 words to the effect, "If something goes wrong, you will 31 suffer the consequences"? 32 A. No. No. 33 34 Q. I suggest he never said to you, "It's your fault. 35 You'll be going to gaol"? 36 A. "If something goes wrong, it will be your fault and 37 you'll be the one going to gaol". 38 39 Q. I suggest that wasn't said? 40 A. Eh? 41 42 Q. I suggest that is not what was said? 43 A. What you suggest and what I hear, unless I've got 44 impaired hearing, that's what was said. 45 46 Q. I take it your recollection hasn't got any better 47 since 2013?


1 A. Probably not. 2 3 Q. To assist your recollection, you had reference to the 4 notes you made that afternoon? 5 A. Yes. 6 7 Q. Can you go to the first -- 8 A. Page, yeah -- 9 10 Q. Sorry, the first annexure to your statement -- 11 A. Mmm-hmm. 12 13 Q. -- which is a photocopy of the page from 25 February. 14 A. Yes. 15 16 Q. Do you see what you have written just under the time 17 slot for 10 o'clock in the morning? 18 A. Yes. 19 20 Q. You've written by saying: 21 22 If something goes wrong they will suffer 23 consequences. 24 25 A. Yeah. 26 27 Q. That is what you wrote on 25 February -- 28 A. Yes. 29 30 Q. -- towards the end of that day? 31 A. Yes. 32 33 Q. And by towards the end of that day, that is shortly 34 after the site was shut down? 35 A. Yes, it was shut down in the morning. 36 37 Q. So approximately what time of day did you write those 38 words, "If something goes wrong they will suffer 39 consequences"? 40 A. Well, I work from seven till six, so it would have 41 been close to six because it is the last thing I do on 42 site. 43 44 Q. When you were making these notes, you thought back to 45 what had happened that day and that's what you have 46 recorded, what your recollection was? 47 A. They will suffer the consequences. That's the way


1 I wrote it down that day, yes. 2 3 Q. And that's the way you recall the conversation? 4 A. No, I didn't put my conversation down there. I just 5 wrote down what I wrote down. 6 7 Q. Well, what you write is in terms of -- 8 A. They will suffer the consequences. 9 10 Q. You say, "By saying"? 11 A. "By saying"? 12 13 Q. Do you see that, if you just look at your own notes? 14 A. "By saying if something goes wrong, they will suffer 15 the consequences." 16 17 Q. That's conversation, isn't it? 18 A. I don't write conversations down. I'm putting things 19 down that happened that day and that "they will suffer the 20 consequences." So, in other words, they will be the ones 21 going to gaol, I suppose, if that's the way you want to put 22 it. 23 24 Q. That's not the way I want to put but it seems that's 25 the way you're putting it. 26 A. That's the way I'm putting it. I'm just telling you 27 what I write and what I say is not probably the same thing. 28 29 Q. But what you wrote was not anything other than a 30 statement of what Mr Hall had said, because you wrote -- 31 A. No. 32 33 Q. -- "By saying" and then you put the words -- 34 A. Well, what would the consequences be? What would the 35 consequences be? When you're pointing your finger at the 36 bloke, "If he gets hurt - if someone gets hurt, you'll be 37 going to gaol." Going to gaol is a consequence, isn't it? 38 39 Q. Well, you may have thought that was the consequence, 40 but I suggest to you that Mr Hall never used the words, 41 "You'll be going to gaol" -- 42 A. He -- 43 44 Q. -- that what he said was - I'm sorry? 45 A. No, that's what he said. 46 47 Q. I suggest to you what he said to you --


1 A. There was more said but I can just remember those 2 words come through my head. I haven't got a full 3 recollection. There was more said at the pointing, but 4 I can just remember those words going through my head. 5 That's the only thing that I remember. 6 7 Q. Yet you didn't remember that when you made these notes 8 on the afternoon or evening of 25 February? 9 A. Do you want to have a look at my diary and have a 10 quick look? Go through the other pages. I only put short 11 little dots down just to bring memories back in my head. 12 13 Q. Where did you get the words, "They will suffer 14 consequences" from if they were never said? 15 A. It is the way I've interpreted it when I've written 16 the words down. If I was going to do a diary, well, then, 17 I would have every page full if I had to write down every 18 word that comes to my head. Maybe I should run around with 19 a tape-recorder for you. 20 21 Q. Does that mean that the words, "You'll be going to 22 gaol" didn't come to your head when you made that note? 23 A. Well, I didn't see any reason to write it down. 24 25 Q. Might it be that the reason you didn't write it down 26 was because they weren't said and that you -- 27 A. I'm just telling you what I remember. I'm not telling 28 you anything different than what I remember. I can just 29 remember those words going through my head. Okay? I can 30 only give you what I know. I don't - I'm not going to tell 31 you anything different than what I know or remember. 32 33 Q. I take it you have spoken to other people about this 34 incident since the incident? 35 A. What's that? 36 37 Q. You've spoken to other people about this incident 38 since the incident? 39 A. I may have, I can't remember. 40 41 Q. And might they have given you to believe that the 42 words, "You'll be going to gaol", were said, whereas, in 43 fact, those words weren't said at all? 44 A. I don't think so. No, I wouldn't write something down 45 on a statement if I didn't remember it. 46 47 Q. Even if it's different to what's written in your


1 notes? 2 A. Even if it's different to what's written in my notes. 3 The notes are there to bring back memories. Sometimes 4 I write notes in here, "Concrete was delivered" on 5 so-and-so day, and oh yes, concrete was delivered on that 6 date because it gives me a flashback, you know. 7 8 Q. Then you refer to what happened on 26 February, which 9 was a Tuesday, the next day? 10 A. Yes. 11 12 Q. You've written, "Nathan was fixing the handrails." 13 Was that because of the improvement notices that WorkSafe 14 had issued? 15 A. Yes. 16 17 Q. Because you were aware by then that WorkSafe were 18 claiming that the handrails did not comply with the 19 Australian Standard? 20 A. Apparently. 21 22 Q. I am not being critical of you, but you weren't aware 23 of that until WorkSafe drew it to your attention? 24 A. Until - yes, I had no idea. I'd got a contractor in 25 to put handrails in. You'd expect that they'd put them in 26 safe and I'm still - to this day I still think they're 27 safe. Even though WorkCover gave me a prohibition notice 28 on the job, I think they were safe. The uprights, the 29 standings, they say, should be 2.4 apart, I know sometimes 30 they're up to 3 metres apart, but then if you go back into 31 the paperwork, a 4 by 2 can go up to 3.5 metres apart, so 32 I don't know whether 2.4 come into it, but anyway, at the 33 time I've got a prohibition notice for it, yes. 34 35 Q. If you go to your notes for 26 February -- 36 A. Yes. 37 38 Q. -- you've written: 39 40 Had meeting with Union in office. 41 42 A. Yes. 43 44 Q. You write: 45 They want us to work with them. 46 47 A. Yes.


1 2 Q. And then: 3 4 EG: get rid of Claw Construction. 5 6 A. Yes. 7 8 Q. 9 Or we going to make life hell for us. 10 11 A. Yes. 12 13 Q. So those words, "We going to make life hell for us", 14 is that what was said by this person who was talking to 15 you? 16 A. Oh look, I cannot remember the conversation. 17 18 Q. Do you see you've used the word "we", "We going to 19 make life hell for us". Weren't you there writing down 20 what you say he said? 21 A. Oh, look - hang on, what time did I start? I've done 22 a 10-hour day. I just sit down and write down probably 23 what I can remember of the day. I don't put down word for 24 word for anything, like the last one you've asked me, on 25 the 25th, the consequences thing, I don't write down - 26 I just put stuff down that tries to remind me of things if 27 something happens, you know. 28 29 Q. You wouldn't call that gobbledegook, would you? 30 A. Well, the stuff that I write down every day. 31 32 Q. This person who was having a conversation with you in 33 the office, he was just there by himself, wasn't he? 34 A. No, there was three or four guys there. There was me, 35 Zoran and three or four other guys. 36 37 Q. Do you know their names? 38 A. No. 39 40 Q. Do you now know their names? 41 A. No. 42 43 Q. No? Do you know Mr Dean Hall? 44 A. I do by face, yes. 45 46 Q. He wasn't one of them? 47 A. I don't recollect but no, I don't think he was in


1 there, no. 2 3 Q. Have you got no idea who the others were? 4 A. One was a big Maori fellow that was all - he might not 5 have been Maori, he might have been an Islander -- 6 7 Q. The fellow who was shaking the -- 8 A. Yes. 9 10 Q. It is the others I am interested in. We need to 11 identify them so we can go and speak to them. I'm asking 12 you if you can help us with who they were? 13 A. I can't really help you. Maybe if you got me a 14 line-up I could probably pick one, because I did sit down 15 and have a good conversation with one of them. 16 17 Q. When you've written, "EG: get rid of 18 Claw Constructions", is that just an example, that is, that 19 that is what you thought they were talking about rather 20 than something they said? 21 A. Look, I cannot remember that day. Okay? I remember 22 being in the office with them and I remember - but I don't 23 remember them saying, "Get rid of Claw Constructions." 24 They must have if I've written it down, I suppose, so -- 25 26 Q. Might it be something that you thought they were 27 referring to but that they didn't actually use those words? 28 A. If that's what you think, yes. 29 30 Q. It's not what I think. You are the only person -- 31 A. I'm just - I'm just - I wrote that down, "Get rid of 32 Claw Constructions or we're going to make life hell for us 33 if we don't work in together." 34 35 Q. You've written "EG", which - what do you understand 36 "EG" to mean? 37 A. It's "et cetera" to me, "EG" means. 38 39 Q. "Et cetera"? Not "for example"? 40 A. No, "et cetera" - well, usually I put it down as 41 "et cetera" but -- 42 43 Q. Might it be that they said to you words to the effect 44 that they wanted to work with you or your company and that 45 you got the impression, you inferred that what they were 46 saying was that they wanted you to get rid of 47 Claw Constructions?


1 A. No, they offered us to use a lot of their trades. 2 I remember them asking us if they wanted - if we can work 3 in together and use a lot of our trades, or else they're 4 going to make it hard for us. 5 6 Q. You remember that? 7 A. I do remember that. That's the only thing I sort of 8 remember, that they asked us to use their trades. I don't 9 remember them saying anything about Claw Constructions, but 10 they must have said something there, but I'm only telling 11 you what I remember. 12 13 Q. And yet, there's nothing in your note about using 14 their trades, is there? 15 A. In these notes here? 16 17 Q. Your diary note, yes. 18 A. In my diary? No. No, I didn't put it down. 19 20 Q. You made no note of that? 21 A. I'm just saying what I remember. I'm not - my notes 22 bring back memories. That's the only thing, they asked us 23 to use their trades and we'll get on - we'll work in 24 together better. 25 26 Q. But you didn't remember that when you made your note? 27 A. Did I need to remember it? 28 29 Q. Do you agree with me? 30 A. I made a note. 31 32 Q. You didn't remember that when you made your note? 33 A. Well, I don't remember Claw Constructions either when 34 I made the note. 35 36 Q. Yes. 37 A. So -- 38 39 Q. Well, you can't remember Claw Constructions now. My 40 point to you is that when you made your note, you did not 41 remember anybody from the CFMEU saying, "You should work 42 with their trades", or, "You could work with their trades"? 43 A. I wouldn't say it to you if I didn't remember it; 44 that's one thing I do remember. 45 46 Q. What I'm putting to you is that you obviously didn't 47 remember that when you made your note because you have not


1 made a note of it? 2 A. Why would I make a note of it? 3 4 MR STOLJAR: Commissioner, his evidence was that he didn't 5 necessarily write down every detail in his notes, so I'm 6 not sure that that question is a fair question, with 7 respect. 8 9 MR AGIUS: Q. Might it be that that portion about 10 working with their trades wasn't something that was 11 actually said, but it's something that has come into your 12 mind since then? 13 A. No, they said those words, because I remember it or 14 else I wouldn't tell you or anybody else. I've got no - 15 I'm not gaining nothing out of this inquest, so I'm just 16 telling you what I know. 17 18 Q. What I'm suggesting to you is might it be a false 19 memory? 20 A. No, I don't think it is a false memory or else 21 I wouldn't say it. There's a lot of things I could have 22 said in this whole thing, but if I - the only things I'm 23 telling youse is what I remember. 24 25 Q. On 4 March, which was not very long later -- 26 A. Yes. 27 28 Q. -- you spoke to the Fair Work Building and 29 Construction people? 30 A. Yes. 31 32 Q. Did you tell them anything about the conversation that 33 you'd had on 26 February? 34 A. Well, I'm pretty sure I did tell them that I didn't 35 get rid of - they asked me if I'd got rid of 36 Claw Constructions at the time. I'm trying to remember it. 37 And I said no and they said lucky, because I'd be in 38 trouble if I would have got rid of them, because they had a 39 contract with us. So I remember them - all I remember is 40 because we didn't get rid of them, it was a good thing and 41 I remember that being a good thing. I don't remember why 42 or how. 43 44 Q. Who did you speak to from the Fair Work Building 45 Commission? 46 A. I'm not sure. Two of them turned up on-site. 47


1 Q. Did they take a statement from you? In other words, 2 did they take a narrative, a story-like statement setting 3 out a series of events in the order in which they occurred? 4 A. I'm not sure. I don't think so. They might have been 5 making notes. I'm not sure. 6 7 Q. But you didn't keep their card and you can't tell us 8 what their name is? 9 A. Oh, I may have kept their card at the time. Like 10 everything else, after a while it gets thrown away. 11 I don't keep that sort of stuff because it didn't seem to 12 be important to keep anything. They gave me stickers to 13 put up on the walls, I remember that, and they were the 14 ones who told me what the rules were with the Union. They 15 said if one comes on-site, even if 10 come on-site, he 16 said, I'm only obligated to take one fellow to the unsafe 17 area and we go through it and that was it. 18 19 Q. They told you that, did they? 20 A. Yes. 21 22 Q. And did they tell you where that limitation on your 23 obligation comes from? 24 A. No, they didn't. They just said, "If they turn up 25 on-site", I'm allowed - I cannot refuse them on-site if 26 they've got their card, or whatever, and that I'm allowed 27 to take one person to a designated site on the site and 28 we'll go through. If there's something unsafe, well then 29 it's unsafe. 30 31 Q. Has anybody ever corrected that? 32 A. Not that I know of. I know I'm - I know when I took 33 them on-site that day that we closed the site, that I've 34 took four or five guys up there and they just - I told them 35 to stay with me because they weren't inducted and when they 36 got up there, they just took off in every direction. 37 I called them back and they just kept going, so -- 38 39 Q. Do you know any of their names. 40 A. No. No. As I said, the only bloke I know was 41 Dean Hall and the big Maori fellow, or whatever he was, 42 Islander-looking fellow, and the other three guys that were 43 there. 44 45 Q. Officers or members of the Fair Work Building 46 Commission were on-site on that day as well? 47 A. No. No. Fair Work wasn't there that day. They come


1 on the day that we were - what day was it that we were 2 talking? The 4th. 3 4 Q. That's what I was asking you about. I thought you 5 said that Fair Work came on on that day. It is that a 6 misunderstanding, is it? 7 A. No, it's a misunderstanding. 8 9 Q. You never called the WorkSafe Building Commission on 10 the day that -- 11 A. I never called them at all. 12 13 Q. -- the concrete pour was -- 14 A. I called WorkCover that day. Fair Work turned up on 15 my site on the 4th without even me calling them. I don't 16 know who called Fair Work but they turned up on my site. 17 I never rang them. I never called them. They just fronted 18 me at the office. 19 20 Q. Might that have been Andy Solduka? 21 A. Yes. He's an engineer. 22 23 Q. I'm just looking at your notes for Monday the 4th. 24 There's no reference to the Fair Work Building Commission 25 then. 26 A. Monday the 4th? 27 28 Q. Correct me if I'm wrong -- 29 30 THE COMMISSIONER: That's a fair question which deserves 31 to be pondered. 32 33 MR AGIUS: Q. Do you know who Andy Solduka was? Did he 34 work for the Fair Work Building Commission? 35 A. No. Andy Solduka is an engineer. 36 37 Q. An independent engineer? 38 A. An independent engineer that we called in to do an 39 independent inspection on the formwork. 40 41 Q. If I look at the next line and I've only got a 42 photocopy, you might find it easier to look at the original 43 notes. 44 A. Yes, okay. 45 46 Q. Am I correct in reading it, the very next line, as: 47


1 Work Right Building and Construction came 2 on-site. 3 4 A. Yes. 5 6 Q. Is that your way of referring to the Fair Work 7 Building Commission? 8 A. Yes. 9 10 Q. So that's your note of them coming on site on Monday, 11 4 March. 12 A. Right. 13 14 Q. But you haven't recorded there any note of anything 15 you said to them? 16 A. No. It's just got on the bottom to let me know more 17 about unions and workers' rights. 18 19 MR AGIUS: Thank you, Commissioner. 20 21 THE COMMISSIONER: Mr Morison? 22 23 MR MORISON: No, thank you. 24 25 THE COMMISSIONER: Mr Stoljar? 26 27 MR STOLJAR: I do have a few documents I just thought 28 I should take Mr Rossi through, Commissioner, that I didn't 29 do the first time around. 30 31 <EXAMINATION BY MR STOLJAR: 32 33 MR STOLJAR: Q. Mr Rossi, I don't know if I'm able to 34 get these to you. I just want to take you through, if you 35 have them, Commissioner, documents which are attached to 36 Mr Bartlett's witness statement. They begin at JDB-2. 37 They're on the screen, Mr Rossi, and I'll give you a 38 hard copy if that makes it easier to read. 39 A. Yes. 40 41 Q. You may not have seen these for a long time, but 42 I just want to run through them with you and see if you can 43 say anything about them. 44 A. Yes. 45 46 MR STOLJAR: Do you have those now, Commissioner? 47


1 THE COMMISSIONER: I did before but I haven't now. 2 3 MR STOLJAR: Could I provide you with another copy. It 4 may be convenient, Commissioner - I am going to call 5 Mr Bartlett later in the day. I wonder if, subject to any 6 objections Mr Agius has to the content of his statement, if 7 that statement be received into evidence now and then these 8 documents will be in evidence. 9 10 MR AGIUS: Mr Commissioner, our position in relation to 11 this is that we have no objection to the documents being 12 tendered at this time, but we will not be in a position to 13 cross-examine Mr Bartlett this afternoon and we would seek 14 that his cross-examination be deferred until tomorrow to 15 enable us to take instructions. 16 17 THE COMMISSIONER: Yes. 18 19 MR AGIUS: We didn't receive this until late on Saturday 20 evening. I appreciate the statement was only made on 21 Saturday. 22 23 THE COMMISSIONER: What you've just said to me sounds like 24 a perfectly reasonable application, but I think the precise 25 question is do you object to Mr Bartlett's statement? 26 I think you said you didn't object to the documents. 27 28 MR AGIUS: Including the statement. 29 30 THE COMMISSIONER: You don't object at all? 31 32 MR AGIUS: No, we don't object. 33 34 THE COMMISSIONER: I think perhaps if Mr Stoljar just 35 takes on board what you said about cross-examination and 36 turns his mind to finding a point, which might well be the 37 first thing tomorrow morning, at which the 38 cross-examination could take place, that can be sorted out. 39 Mr Bartlett's witness statement will be received, together 40 with the documents which are annexed to it. 41 42 STATEMENT OF JOSEPH BARTLETT AND DOCUMENTS ATTACHED THERETO 43 44 MR STOLJAR: Q. I am showing these to you cold, 45 Mr Rossi, you may not have seen them ever for all I know. 46 They're addressed to you. Looking at this document, 47 someone's written in handwriting at the top "JDB-2". It is


1 Improvement Notice 5224. Do you remember this document? 2 A. I remember getting them. 3 4 Q. You remember getting them? 5 A. Yes. 6 7 Q. Someone's written in handwriting - you know what an 8 Improvement Notice is, of course? 9 A. Yes. Yes. 10 11 Q. The problem which has been identified on this first 12 one, 5224, is, it says: 13 14 One single toilet on-site. Inadequate 15 facilities. 16 17 And then someone's written: 18 19 Ensure the provision of adequate welfare 20 facilities, including male and female 21 toilets, drinking water and washing 22 facilities. This issue is to be resolved by 23 COB on the above date. 24 25 A. Yes. 26 27 Q. Was that something that was discussed on that day, the 28 25th, do you know, can you remember? 29 A. Nothing was discussed on that day. This was - well, 30 it might have been through that day. I can't remember if 31 WorkCover - I can't remember if it was that day or the day 32 after when they gave me this - this was the 25th, so it 33 must have been the day, if that was the day it happened, so 34 it would be the day, yes. 35 36 Q. Did you take steps to increase the number of toilets 37 and have drinking water and the like? 38 A. Yes. 39 40 Q. And then the next document is 5225, an 41 Improvement Notice, and someone has written: 42 43 Inspectors have legitimate concerns about 44 formwork structure used to support the 45 Ultrafloor system. 46 47 A. Yes.


1 2 Q. Is that the propping system for the deck? 3 A. Yes, that's the propping system, that's the formwork 4 that Claw done, yes. 5 6 Q. And then it says: 7 8 Provide details of the Ultrafloor system at 9 173 Flemington with regards to bracing and 10 propping of the deck, to be supplied by 11 COB. 12 13 They were after some documents, were they, to describe the 14 system? 15 A. Yes. 16 17 Q. Were these SWMS or was that something else? 18 A. No, they're a set of plans that show you the propping 19 system and -- 20 21 Q. Did you give them - I am sorry, had you finished? 22 A. They would have been on site but I just maybe not have 23 found them that day. They give you those propping systems; 24 it comes on a plan. 25 26 Q. Did you give WorkSafe the plans? 27 A. Yes, they ended up getting them. 28 29 Q. Was that all okay with the plans? 30 A. Yes, everything was fine. 31 32 Q. And then 5226 is the next one. 33 A. Yes. 34 35 Q. It says that there's insufficient documentation on the 36 site. They say: 37 38 Provide WorkSafe ACT with copies of the 39 systems of work in place for 173 Flemington 40 Road, Mitchell, by COB on the above date. 41 42 Is that a reference to the SWMS? 43 A. I'd say it would have been. My documents must have 44 been not up to scratch. 45 46 Q. Did you send them through? 47 A. I brought all my paperwork up to scratch.


1 2 Q. Was there any further issue about it? 3 A. No. 4 5 Q. Then in the next one, 5227, it says: 6 7 Insufficient and non-compliant power boxes 8 on-site. 9 10 What was the issue there, do you remember? 11 A. Inside the temporary power boxes there's supposed to 12 be a little box with a trip switch on it and there's 13 supposed to be a locking system on it so you can't get to 14 it, but that locking system wasn't up to scratch. 15 16 Q. Did you fix it? 17 A. The electricians came in and fixed it, yes. 18 19 Q. Then 5228 - and this might be the one that you've 20 already given a bit of evidence about - says: 21 22 Scaffolding and edge protection in place is 23 non-compliant with AS 1735 and does not 24 adequately protect workers on-site. 25 26 They say: 27 28 Have a competent person review and rectify 29 the current scaffold and edge protection 30 and make it compliant with AS 1735. 31 32 Is that what you're referring to in your statement when you 33 say the technical safety breach was the spacing of the 34 handrails? 35 A. Yes. 36 37 Q. And that you discussed with Mr Agius, when he was 38 asking you some questions, that issue. You said you 39 weren't sure if it was a problem or not but, in any event, 40 you fixed it? 41 A. Repeat that one again? 42 43 Q. That's the issue, that you remember Mr Agius asked you 44 some questions about that? 45 A. Yes. 46 47 Q. That was what you were talking about, this issue about


1 the handrail? 2 A. Yes, the uprights - well, they say they've got to be 3 2.4 or 2.7 - 2.4. I've still got paperwork that shows it 4 can go up to 3.5, but yeah, they weren't - the maximum one 5 we had was about 3 metres apart, the uprights. I think at 6 the time WorkCover said they had to be 2.4, so we just got 7 the handrail bloke, I rang him up, that's the one who put 8 it up. 9 10 Q. That was Nathan, was it? 11 A. Nathan. He came in and put an extra one in between 12 all the other uprights. 13 14 Q. And then at 5229 it says: 15 16 Insufficient access and egress to the 17 work face. 18 19 Someone has crossed out the "pour deck" and put 20 "work face". And it says: 21 22 Ensure sufficient access and egress avenues 23 are installed and maintained. 24 25 What was the issue there, do you remember? 26 A. In my recollection, there should be two accesses and 27 egresses on-site and we had the only one access and egress. 28 29 Q. What were they, steps or something? 30 A. Yes, it was steps or a ramp or - on the job I've got 31 at the moment, we've got a ramp - I've got one set of 32 ladder access and on the other side of the building I put a 33 ramp access. 34 35 Q. What did you do here? Did you put something in? 36 A. We built a new sort of - another - we put a second 37 egress in. 38 39 Q. What was it? Steps? 40 A. Steps. 41 42 Q. Those are the improvement notices. Then the first 43 Prohibition Notice, this is a couple more pages in, it's 44 4303. That's talking about the access and egress to the 45 work face, so that's obviously that issue again. 46 A. Okay. What is it, 4303? 47


1 Q. Yes. 2 A. Yes. 3 4 Q. And then the next one, a couple of more pages on, is 5 4304 and that was the scaffolding and edge protection 6 around the work site and that's the issue that Neville 7 fixed up on the morning of the 26th; is that right? 8 A. That's the handrail. 9 10 Q. Yes. 11 A. Yes. 12 13 Q. Come a few more pages in. There's a notice 4305. 14 A. Yes. 15 16 Q. This was issued the next day. 17 A. Yes. 18 19 Q. It said that the formwork, et cetera, associated with 20 the concrete pour had not been inspected by an independent 21 engineer? 22 A. Yes. 23 24 Q. It was said there was a conflict of interest? 25 A. Yes. 26 27 Q. Just tell me about that? What was happening there? 28 A. What had happened is the engineer that we were 29 using -- 30 31 Q. Is that Mr Solduka or someone else? 32 A. No, at the time it was Pierre Dragh. My boss hasn't 33 got a licence, he uses other people's licences, and there 34 was a conflict of interest between Pierre Dragh being the 35 licensed builder and Pierre Dragh being the engineer. 36 37 Q. So you had to get a new engineer? 38 A. Yes, and that's when I got my builder's licence 39 because then I became - I've always had the builder's 40 licence in New South Wales, but then I moved my New South 41 Wales licence - moved from New South Wales to the ACT, so 42 then the next job that we went to I took over the building, 43 I used my licence, because basically I'm the one building 44 it anyway, and they got a different engineer in. That was 45 Andrew Solduka. I did use - I did get Jahn, I don't know 46 his last name, he came in and he inspected it and I rang 47 WorkCover and they said that they weren't happy with Jahn,


1 they would rather we have somebody else, so then I rang 2 Andy Solduka, met him and then he came and done an 3 independent inspection as well. 4 5 Q. Was it all okay? 6 A. It was all okay, yes. 7 8 Q. By the way, had Jahn found it was all okay as well? 9 A. As well, yes. 10 11 Q. So you ended up with three engineers who looked at it 12 and they all said it was okay, but you had to keep getting 13 more independent ones, is that the position? 14 A. Yes. There was a - Jahn asked for a couple of little 15 changes and I listened to Jahn and done the couple of 16 little minor changes, yes. 17 18 MR STOLJAR: I have nothing further, thank you. 19 20 THE COMMISSIONER: Mr Agius, do you want to ask any 21 questions arising out of that material? 22 23 MR AGIUS: I do. 24 25 THE COMMISSIONER: Mr Rossi, I imagine you've got some 26 work to do this afternoon. I think it would be nice if 27 Mr Rossi could be finished now, if possible, so if you can 28 proceed now. 29 30 MR AGIUS: Yes, Commissioner. 31 32 <EXAMINATION BY MR AGIUS: 33 34 MR AGIUS: Q. I am sorry to detain you, Mr Rossi, but 35 I just need you to go back to some of those documents. 36 A. Yes. 37 38 Q. Can you go to the Improvement Notice, which is the 39 second page behind JDB-2? 40 41 THE COMMISSIONER: That's number 5226. 42 43 MR AGIUS: No, I have it as 5225. 44 45 THE COMMISSIONER: All right, yes. 46 47 THE WITNESS: 5225?


1 2 MR AGIUS: Q. Yes, the top right-hand corner. 3 A. Yes, 5225, yes. 4 5 Q. My friend just took you to this a few moments ago; 6 I just want to be sure. The details of the Ultrafloor 7 system used with regards to bracing and propping of the 8 deck, was that the responsibility of Claw Constructions? 9 A. No, that's the responsibility of Ultrafloor. 10 11 Q. Yes, but how did that work? How did the provision of 12 the Ultrafloor system fit in with the bracing and propping 13 of the deck and who provided that service? 14 A. Well, Ultrafloor come in and they put the deck on. 15 That's all craned in in pieces and then what happens is 16 underneath, down through the middle of it, it will sit on 17 each side of the structural walls, which this one here 18 would have been structural walls - actually, it wasn't. 19 This one here was different, the one I'm doing now is 20 structural walls. This one here was steel pylons. They 21 put these big steel - concrete, concrete beams in and 22 there's short little beams that run across the top. What 23 they do, the short beams carry themselves, but the big 24 beams, they put all this framing up and they put bracing 25 and it all gets put up underneath the floor to about 26 probably 5 to 10mm because they're stress-crete. When the 27 weight comes down, it comes down and sits on top of the 28 scaffolding and the bracing, as far as I understand. 29 30 Q. How does that relate to the formwork for the pour? 31 A. It doesn't really. 32 33 Q. Where does the formwork go? 34 A. The formwork on this job was more towards the last - 35 there was a cantilevered section past the Ultrafloor. 36 There was a section of - it might have been - I can't 37 remember without looking at it. It might have been 38 2 metres or something and it was right through the front of 39 the building, so where the building finished there, it was 40 a cantilever section that sort of -- 41 42 Q. That cantilever section would, in effect, be supported 43 by the slab, which slab was supported by the Ultrafloor? 44 A. No, Ultrafloor is one section and then the formwork is 45 another section. Yes, one doesn't interfere with the 46 other. 47


1 Q. The next document, 5226, that relates to what my 2 friend referred to as the SWMS document, the SafeWork 3 method statements. You would agree, would you not, that 4 they're an important part of safety on any construction 5 site? That's 5226. 6 A. Yes: 7 8 Insufficient documentation on-site. 9 Provide WorkSafe ACT with copies of the 10 systems of work in place for 173 Flemington 11 Road ... 12 13 "Systems of work in place", that's not SWMS because SWMS 14 I get off every contractor, I would have had my SWMS in 15 place, but look, there's that much paperwork that's 16 involved with theirs -- 17 18 Q. "Systems of work" is something that people working on 19 the construction site would need to be inducted into? 20 A. Yes, all the inductions were done. I had everybody 21 inducted. 22 23 Q. How would you be able to do that if the systems of 24 work documentation was not on-site? 25 A. Well, I'm not sure how - I'm not sure what the 26 paperwork was. I know they got me on paperwork for some 27 reason. I had to bring my paperwork up to date. I don't 28 know if it was the actual SWMS because I get SWMS off every 29 contractor that comes in. It may have been something in 30 the SWMS; maybe their SWMS weren't correct and I hadn't 31 read through them. 32 33 Q. 5229 is the Improvement Notice about access and 34 egress? 35 A. Yes. 36 37 Q. This work area which was going to be poured, where 38 concrete was going to be poured, had one access point? 39 A. Yes. 40 41 Q. That was an access point that also had a lot of reo in 42 it because it was going to be filled with concrete as well, 43 wasn't it? 44 A. The access point - come again? 45 46 Q. Yes, the access point -- 47 A. Yes.


1 2 Q. -- wasn't a walkway but it had a lot of reo in it, 3 expecting the concrete would be poured there at some stage? 4 A. I can't remember where that access point was to that 5 job, but usually it's a set of scaffold and stairs that 6 they can get up and then get back down. I don't know where 7 the access point might have been. 8 9 Q. Finally, 4305. 10 A. Okay, 4305. Yes. Yes. 11 12 Q. When you were asked about this, you said that the 13 builder was using Pierre Dragh's licence? 14 A. Yes. 15 16 Q. The builder being Claxton Constructions? 17 A. Yes. 18 19 Q. But it didn't have its own building licence? 20 A. No, it was building with Pierre Dragh's licence, yes. 21 22 Q. Is that common? 23 A. Yes, it's a common practice, yes. 24 25 Q. A safe practice, do you think? 26 A. Provided they've got the right people running the job, 27 yes. 28 29 Q. You said that Jahn wanted some changes. What were the 30 changes? 31 A. I can't remember. I remember him saying move this and 32 move that a couple of places. There weren't -- 33 34 Q. Structural changes to the supports for the slab? 35 A. Yeah, he asked for a couple of little bits of changes. 36 37 Q. Did you make them? 38 A. Yes. He said - he said not that they - he wasn't 39 particularly stressed about them, but he just said, "Look, 40 it would probably pay to do them." 41 42 Q. Did he give you a certificate or anything in writing 43 in relation to his recommendations? 44 A. I can't remember. That's something I may be able to 45 dig it up in paperwork because I do throw all the paperwork 46 in one spot. He may have done, he may not have done, but 47 yeah. I ended up getting a certificate from Andrew Solduka


1 because Jahn was not happy - WorkCover was not happy with 2 Jahn. 3 4 Q. And they wanted the engineer to be not just separate 5 from the builder, but they were not happy with Jahn and 6 they wanted the engineer to be an agreed engineer, agreed 7 as between you and WorkSafe? 8 A. Yes. What happened was I think that Jahn was in 9 conflict with them on a job that went wrong and so they 10 didn't want me to use Jahn, they weren't happy with Jahn's 11 qualifications or -- 12 13 Q. Did that involve the collapse of a bridge on the 14 Barton Highway? 15 A. That's right, yes. 16 17 Q. So then they indicated that they -- 18 A. They wanted another engineer -- 19 20 Q. -- wanted an independent engineer agreed to by 21 WorkSafe? 22 A. Yes. 23 24 Q. And that's what you provided? 25 A. Yes. 26 27 MR AGIUS: Thank you. 28 29 THE COMMISSIONER: Yes, thank you, Mr Agius. Mr Morison? 30 31 MR MORISON: No, thank you. 32 33 THE COMMISSIONER: Mr Stoljar? 34 35 MR STOLJAR: Nothing further, thank you, Commissioner. 36 37 THE COMMISSIONER: Is there any objection to Mr Rossi 38 being excused? 39 40 MR STOLJAR: No. 41 42 THE COMMISSIONER: Mr Rossi, you came here on a summons. 43 You are excused from any further attendance on that 44 summons, so you're free to go now and leave the witness 45 box. Thank you for coming. 46 A. Thank you. 47


1 MR STOLJAR: Commissioner, can I raise one issue? The 2 next witness is Mr Zoran Stojanovic. He is particularly 3 keen to get away because of a job, in fact, a pour that is 4 going to take place first thing tomorrow, and he wants to 5 get it ready. I am entirely in your hands, Commissioner, 6 but if you would consider taking a late lunch break today, 7 we could perhaps deal with him. 8 9 THE COMMISSIONER: Just one moment. As long as 10 Mr Zoran Stojanovic is not unduly long, I think a late 11 lunch is perfectly satisfactory. 12 13 MR STOLJAR: Thank you, Commissioner. 14 15 THE COMMISSIONER: Does any counsel object to that course? 16 All right. Let's call the witness then. You can leave 17 Mr Rossi. Thank you. 18 19 <THE WITNESS WITHDREW 20 21 MR STOLJAR: Yes. I call Zoran Stojanovic. 22 23 <ZORAN STOJANOVIC, sworn: [1.15pm] 24 25 <EXAMINATION BY MR STOLJAR: 26 27 MR STOLJAR: Q. Can you tell the Commission your full 28 name? 29 A. My name is Zoran Stojanovic. 30 31 Q. Are you a resident of the ACT? 32 A. Yes, I am. 33 34 Q. You are a sole trader trading as Claxton Construction? 35 A. That's correct. I trade as Zoran Stojanovic Trading 36 as Claxton Construction. It's not a company registered 37 with an ACN number, it's just a business name. I've been 38 trading since 1991-1992 under this name. 39 40 Q. You have also got a scaffolding licence? 41 A. Yes, I had a scaffolding licence. I worked on the 42 Olympic Village in Sydney before Olympics, from '96 to 2000 43 on the scaffolding for Mirvac on a contract of 44 construction. We done all the contracts for Mirvac on 45 scaffolding there. 46 47 Q. Do you have a copy of your witness statement with you

.20/07/2015 CFMEU ACT 471 Z STOJANOVIC (Mr Stoljar) Transcript produced by DTI

1 in the witness box? 2 A. I'm sorry? 3 4 Q. Have you got your witness statement with you or do you 5 want me to -- 6 A. Yes, I have. 7 8 Q. Is the content of your statement true and correct? 9 A. Everything's true. 10 11 Q. You describe in paragraph 8 some events on 12 25 February, 2013. Was there any notice before the three 13 officials from the CFMEU came on your site? 14 A. No, there was no notice; they just rocked in as 15 animals on the site. 16 17 Q. Were you on-site yourself? 18 A. Yes, I was. 19 20 Q. In 12 you say that the officials told you and Bob, 21 that's Mr Rossi, that because the ground was wet, they were 22 worried there was insufficient support under the props. 23 Someone started shaking the handrails. Now -- 24 A. This is where we have to understand the events of what 25 happening. They came in the morning. We started pouring 26 6.30 and they came quarter to 7, 10 to 7 they came on the 27 site, and Bob asked them to wait there and to take them on 28 site. He took them on the site and told them to stay with 29 them, but they just spread all around. Now I found out 30 there's a Tongan, Fihi, but at the time I thought he was a 31 Maori. He went up on the slab and start shaking the 32 handrails. I was standing there and looking and I wasn't 33 sure what he was doing because this is the first time - 34 I might remind you one thing. I was a BLF member in my 35 younger days for many many years and having the scaffolding 36 and I've been with BLF under the Norm Gallagher leadership 37 and Peter O'Dea, so when I saw these people I was - because 38 when I started my own staff in the '90s I have nothing to 39 do with the Union until that day. When I saw these people 40 on the way they act on the site, I wasn't sure what was 41 going on, to be honest. Yeah, this fellow was start 42 shaking the handrails and other fellows was walking around 43 all the site, yes. 44 45 Q. You've obviously been construction for a very long 46 time? 47 A. Yes.


1 2 Q. How many years? 3 A. Since 1992 off and on, yes. 4 5 Q. That's your own job. Didn't you say you were with the 6 BLF -- 7 A. Oh, yes, I was since '82. 8 9 Q. You've had a scaffolding licence in 2013 for how long? 10 A. I got a licence probably '96, '95, '96. I was working 11 on Parliament House with a joint venture which was between 12 Concrete Constructions and John Holland. I was having - I 13 was working on a permit under the licence with somebody 14 else, in a pair, and I was safety officer for John Holland 15 for five years on that site on Parliament House. 16 17 Q. With all that experience, did you think there was a 18 problem with the props? 19 A. There was no problem whatsoever because they had the 20 plywood underneath this wide. There was - the ground was 21 wet, it was raining before that, so we can't - you know, it 22 was wet, but the Claw did - they put in the larger plywood 23 under the props. Props is only, you know, 150, 200mm in 24 diameter and they have plywood underneath it and props was 25 sitting on the props, on the plywood. 26 27 Q. And that was enough support, as far as you were 28 concerned? 29 A. Well, I wouldn't do anything differently at all. If 30 I did myself, I would do exactly the same what Claw did. 31 32 Q. Was there anything wrong with the handrail, that you 33 could see? 34 A. I don't think so, but on why this man was shaking, 35 surely, you know, because that handrail, the posts holding 36 by two bolts, with the two dynabolts. Now, if you start 37 holding them then obviously the dynabolts start getting 38 loose and that's where you start shaking and start saying 39 the handrail is not safe. 40 41 Q. Did somebody from WorkSafe turn up at that point, or 42 around about then? 43 A. I told they rang them, I believe they rang them, but 44 then by Bob's diary, Bob rang the WorkSafe and Joseph came 45 around eight o'clock or half an hour after then or -- 46 47 Q. Joseph is from WorkSafe?


1 A. Yes. 2 3 Q. Then what happened? 4 A. See, we didn't plan to have this inquiry, so we really 5 didn't ever thought about for the last two or three years, 6 so really things doesn't come back in the head very 7 quickly, but from my memory is he's back to the site and he 8 told was nothing wrong. We were standing - there is a 9 block where he was working and there was another block next 10 to it but between the block is a laneway, so he was 11 standing on that laneway and he was saying that there's 12 nothing wrong, that we can continue the pour. And then 13 Dean Hall came and I was there and Bob was there, a little 14 bit further Bob was there, and I was talking with Joseph. 15 Dean Hall came and says, "If you fucking don't close this 16 site now and somebody gets killed, you're going to go in 17 gaol". This man looked at me -- 18 19 Q. How far away from Joseph was Dean Hall when that 20 happened? 21 A. In the face. 22 23 Q. In his face? 24 A. Like, you know, I mean -- 25 26 Q. Was he shouting or was he -- 27 A. Oh, yeah. I mean, if he was use the word, you know, 28 obviously, he did shout, yes. 29 30 Q. And what did Joseph look like, to you? 31 A. Joseph was - all his face was - I don't know if he 32 knew exactly what to do, to be honest. I don't know how 33 long before he started his job with WorkSafe, I'm not sure, 34 I'd never met him in person before. He's only a young 35 fellow, so I don't know how long he was - he didn't know 36 what - he didn't know what to do. So I said to him, 37 I said, "Shut it", you know, "Close the site down." And 38 then Bob came and Bob says, "We can't just close because 39 it's a continuous pour. I have to ring Pierre and ask 40 Pierre." So he rang Pierre and Pierre says, "Yes, but you 41 have to confirm with Ultrafloor engineer, because it has to 42 be - otherwise, if we've got a crack afterwards, no-one 43 will take responsibility for it." So he talked with 44 Ultrafloor engineer in Sydney and the guy was okay to shut 45 the pour to the circle joint, I'm not sure exactly how far, 46 but once the WorkCover, Joseph closed the site he knew that 47 we were going to use another three or four trucks or mixers


1 to get to that joint where we can stop and we stopped it. 2 3 Q. Yes. And then did they go around the site, or did 4 someone else from WorkSafe come, or what happened? 5 A. That was - there was - there was - I think there was 6 three or four or five of them, yeah, that was, yeah, yeah. 7 8 Q. The next day was there another meeting? 9 A. Yes, because what happening, when Joseph walked away 10 that day, the 25th, he told us he's going to send me, email 11 me Prohibited Notices, or whatever, I can't really, you 12 know, remember the name, but some notices to stop working, 13 right, and also he's going to email me my rights because 14 I talk - after the event I talk with Joseph, I said, 15 "Joseph, I've got no idea, you know, what's going on." He 16 said, "Mate, nothing we can do about it. I have to do 17 this." And he said, "I'll send you - I'll email you 18 tonight all the rights of the unions, you know, your 19 rights, what Union can do, how it can do it. I email you 20 this." And he emailed me that night. I print off that and 21 I took next morning to Mitchell shed and Bob was there and 22 then they rocked up, you know, in the shed. 23 24 Q. They rocked up again? 25 A. Yes. 26 27 Q. Do you remember who came? 28 A. There was - I most remember this Maori fellow or 29 Tongan, Fifi, or Fihi, I can see now in papers but I didn't 30 before know his name, couldn't remember his name. There 31 was a very young fellow, I'm not sure if his name was 32 David, or something, but was very young fellow, tall, 33 blond, youngish fellow, and was one more. I don't recall 34 the name. 35 36 Q. What did he look like, the third one, can you 37 remember? 38 A. I can't even remember the person. 39 40 Q. Where did you meet? 41 A. In a shed on the site. 42 43 Q. What did they say, can you remember? 44 A. Friendly inside in the shed and then again this Maori 45 or Tongan says that we should work together, otherwise 46 they're going to make a hell of our lives and that we 47 should not use Claw, he will give us the numbers of better


1 subcontractors than Claw. I told him I'm not interested 2 and I told him, "Because I was proud of BLF when I was a 3 member in my younger days and why you have people act here 4 yesterday? I don't want to do nothing with youse." 5 I was - there was no - you know, we didn't argue or 6 nothing, yeah, but I told him I don't want nothing to do 7 with them because day before they just act as - well, 8 I could not believe how they act on, you know -- 9 10 Q. What do you mean? What was surprising to you about 11 the way they were acting? 12 A. Well, everything, on the way they acting from the gate 13 to the job was closed, yeah. 14 15 Q. You didn't take any notes of that meeting, did you? 16 A. Notes? 17 18 Q. Yes. Did you take notes? 19 A. I don't use the diary, so I don't take no notes ever. 20 No, I don't use that. 21 22 Q. Did you ever have a conversation with Troy Armstrong 23 from Claw? Just tell me if you can remember saying this or 24 not. Did you ever say to him, "Look, I apologise, but I've 25 been told by the CFMEU I have to kick you off the job and 26 they've found for me Class 1 and Multi-Crete to take over"? 27 A. No, that's not correct, that statement is not correct. 28 Multi-Crete already was on the site because they was doing 29 the pour. Right? They was already on the site day before, 30 on the 25th, when the pour stopped, Multi-Crete was doing 31 that pour. No, I didn't say that. I might have said to 32 him what they told me, never mentioned no names. I don't 33 even know who Class 1 is, or whoever, but I might have said 34 to him - I might have said to him that Union suggested to 35 me they're going to give me better, but I definitely didn't 36 want to talk with them about it. 37 38 Q. Did you ever say that you were sorry but you'd have to 39 kick him off the job? 40 A. No. 41 42 Q. Did he say to you anything about, "If you do kick me 43 off you've got a problem because", he says, "I'll sue you"? 44 A. No, he didn't say that, sorry. He didn't say that. 45 He never replied to me. We talked about it. I told him 46 about the second day we had the meeting with Union, or you 47 know, the application, but no, I wasn't - I didn't say,


1 "Sorry, they told me to kick you off." Maybe I told him 2 they suggested, you know, but I had a contract with Troy or 3 with Claw Construction and I used them before, I use him 4 today. In fact, today they're working. I've got no 5 problems with these people. 6 7 MR STOLJAR: I have nothing further, thank you, 8 Commissioner. 9 10 THE COMMISSIONER: Yes, Mr Agius. 11 12 MR AGIUS: Thank you, Commissioner. 13 14 <EXAMINATION BY MR AGIUS: 15 16 MR AGIUS: Q. Were you present when the CFMEU told the 17 WorkSafe inspector why they were on-site? On the day of 18 the concrete pour were you present when the CFMEU told the 19 WorkSafe inspector why they were on-site? 20 A. Well, I don't know if they told him that. 21 22 Q. The WorkSafe inspector hasn't given evidence yet but 23 we expect he will give evidence -- 24 A. Yeah, yeah. 25 26 Q. -- because we've got his statement. He says that some 27 of the Union officials raised safety issues with him and he 28 refers to four of them. He says that he was told that they 29 were concerned about insufficient access and egress on to 30 the pour deck, unsafe handrails on the edge of the slab, 31 inadequate propping at the southern end of the site and 32 inadequate workers' compensation insurance held by 33 Claw Construction, the formworkers. Were you present when 34 the Union said all of that to the WorkSafe inspector? 35 A. Well, I was there all day, but that particular moment 36 I don't know if I was right with them or not. On the 37 building sites you don't hold hands, we are working, we are 38 doing our stuff, so I'm not sure if I was right next to 39 them or not, but I was on the site all day. 40 41 Q. Were you even present when Mr Hall was speaking to the 42 WorkSafe inspector about what would happen? 43 A. Yes, I was. I was next to Joseph when he point his 44 finger on him and I'm sorry but I'll say it again to you, 45 when he said, "If you don't fucking close the job now and 46 something happen, you're going to gaol." 47

.20/07/2015 CFMEU ACT 477 Z STOJANOVIC (Mr Agius) Transcript produced by DTI

1 Q. Did he not say this, "If something goes wrong, you 2 will suffer the consequences"? 3 A. Didn't you hear what I said? 4 5 Q. I heard what you said. 6 A. Well, thank you very much. 7 8 Q. I'm putting something else to you. 9 A. No, that's what exactly - I just swear on the Bible 10 that I'm telling the truth and that's what the truth is. 11 12 Q. You've got no note of this conversation, you've told 13 us that? 14 A. I've got no note. I don't - I never use the diary. 15 16 Q. Have you discussed with Mr Rossi what the conversation 17 was with the inspector, between Mr Hall and the inspector? 18 A. Oh, of course we did. I mean, I can't recall it, 19 I can't tell you when, and what we talked about, but 20 obviously we did because we are working together. I mean, 21 I'm paying - after all I'm paying him money, so we are 22 working together, yes. 23 24 Q. Have you discussed the fact that the work inspector 25 was told that he would go to gaol? 26 A. Oh, I can't recall, but probably - I don't know if I 27 told Bob or not. I mean, obviously I did, but Bob was 28 there. Bob was all around that site. I don't know if he 29 was just behind me or somewhere on the side, but he was 30 around there. We probably talked afterwards because this 31 is the things which we didn't expect for anybody to be 32 said, but yes. 33 34 Q. I suggest to you that he didn't say anything like the 35 words, "You will go to gaol"? 36 A. I suggest to you that he did say and he used the "F" 37 on it two or three times. 38 39 Q. On this day you didn't know what the rights of the 40 Union were? 41 A. No. 42 43 Q. The Union representatives -- 44 A. No. I had in mind when I was a Union member what was 45 the rights, because I haven't seen any Union since I left 46 the building industry myself working for wages. 47


1 Q. So you didn't know that if they had a permit under the 2 Work Health and Safety Act and they suspected that there 3 was a breach of safety on the site, that they could enter 4 the site? 5 6 THE COMMISSIONER: Reasonably. 7 8 THE WITNESS: No, that's not -- 9 10 THE COMMISSIONER: Given access reasonably. 11 12 THE WITNESS: That's not correct. 13 14 THE COMMISSIONER: Must reasonably suspect. 15 16 THE WITNESS: That's not correct. They have to identify 17 where it is, where the safety problem they think is, and 18 they have to walk with someone who represents the company 19 to that point and discuss that safety point, but one by 20 one, not to go all around the site. 21 22 MR AGIUS: Q. When you say "one by one" -- 23 A. One by one official. See, when they come, five -- 24 25 Q. Who told you that? 26 A. Sorry? 27 28 Q. Only one official. 29 A. It's in the book. 30 31 Q. Which book? 32 A. In the book Joseph he emailed me back that day, that 33 was the one by one; you take them from the gate one by one. 34 35 Q. I may have put that incorrectly to you and it appears 36 that I did, that if they reasonably suspect that there's a 37 safety breach on-site, that they can come on-site provided 38 they have a permit? 39 A. And provided they go with someone from, a 40 representative from the company. 41 42 Q. All right. 43 A. Yes, that's correct. 44 45 Q. After the pour was stopped, there were two inspectors 46 on-site, were there not? 47 A. No, there was three.


1 2 Q. And they went around the site? 3 A. Sorry, one which? Inspectors of? 4 5 Q. WorkSafe inspectors. 6 A. I don't know. I only remember Joseph that was 7 on-site, I don't remember any other. 8 9 Q. You don't remember him phoning someone? 10 A. No. 11 12 Q. And another inspector coming to the site? 13 A. No. 14 15 Q. You don't remember any inspection of the site by 16 them -- 17 A. Well, Joseph done -- 18 19 Q. -- or at least by Joseph? 20 A. Joseph done his rounds for the day, yes. 21 22 Q. Do you know that he issued a number of 23 Improvement Notices? 24 A. Yes, I've got them on my emails, yes. I printed them 25 out and gave them to Bob. 26 27 Q. You know that he issued some Prohibition Notices? 28 A. I believe and to this day that he done that just to 29 justify that his work coming to the site because -- 30 31 Q. He can answer for that. 32 A. He can answer that, because Joseph did tell me he 33 believe there was nothing wrong with continue pouring the 34 concrete and I believe to this day that he just done that 35 just for justifying his coming to the site. 36 37 Q. Nevertheless -- 38 A. He - we had two toilets on the site. He asked for a 39 third toilet to be a female toilet, just in case if a 40 female inspector comes the site, which we did hire from 41 Coates Hire next day, and a couple of other small - very 42 minor things which had no - nothing to do with that pour. 43 Only thing had to do with that pour at the time was second 44 access which we didn't have on it, and that's only thing 45 which I can see that probably was wrong with that day 46 pouring. 47


1 Q. It was obvious you didn't have a second access point? 2 A. No, we didn't, that's what I'm saying. That's the 3 only thing I can see that was wrong, yes. 4 5 Q. I just to understand that it was obvious? You would 6 have expected that anybody who knew what they were about, 7 looking at the concrete pour, would have realised that 8 there was only one access point? 9 A. Yes. 10 11 Q. And you -- 12 A. I didn't - we didn't do that on purpose. 13 14 Q. No, I understand that. 15 A. And we didn't leave the access on purpose. We just 16 didn't do it. 17 18 Q. But you acknowledge, don't you, you agree, you should 19 have had two points of -- 20 A. Of course. 21 22 Q. -- access and egress? 23 A. Of course. But that didn't come from Union. I remind 24 you, that didn't come from Union, that come from Joseph. 25 26 Q. Yes. You don't know what the Union said to Joseph? 27 A. No, I don't, but I got from - what I got are letters 28 from Joseph, yes. 29 30 Q. So you were quite sure that when the Union man was 31 talking to Joseph, that what he said was, "If you don't 32 fucking close the site"? 33 A. That's when you going to - "If somebody get killed, 34 you're going to go to the gaol", and that was Dean Hall, 35 himself. I didn't know the man until that morning but from 36 that morning I do remember his face very well after that 37 event, yes. 38 39 Q. So you say he did not say, "If anyone gets hurt and 40 it's your fault", he didn't say those words? 41 A. No, no, no. He did say, "If somebody gets killed 42 you're going to go to gaol." I mean, you're using that 43 technical words. I mean, remember that was three years 44 ago, two and a half years ago, so it's really - and we 45 didn't keep in our minds because we never thought it was 46 going to happen this way, so -- 47


1 Q. Have you ever seen the diary note that Mr Rossi made 2 of -- 3 A. Yes, I seen it. I seen it, yes. 4 5 Q. And you read it? 6 A. I'm paying him his wages from his diary. I'm tracking 7 his diary every Friday. 8 9 Q. Did you read his diary note within a few days of this 10 incident? 11 A. I'll have to go back to my form to see what's - when 12 it was his pay day, but it's probably - that was 26th, so 13 probably a week or 10 days afterwards, yes. 14 15 Q. Why would you wait a week or 10 days? 16 A. Because I'm just checking his hours, for his work. 17 18 Q. Do you read the diary entries? 19 A. No. I just look at his hours. If I got any queries 20 on his hours, then I'll ask him and then we say, "Well" - 21 and then he goes back and says, "Oh, yeah, we done this" 22 or, "We done that", or we didn't do it or whatever. 23 24 Q. So his diary note says in relation to the Union man, 25 "If something goes wrong they will suffer the 26 consequences", have you ever read that in his diary? 27 A. I can't recall that. I'm sure that Bob knew what 28 Dean Hall was saying to this young man. I don't know what 29 he's got in his diary. His diary, he don't use - his diary 30 is not for anybody else, it's just for me, so I can 31 basically control him. Well, not control him but to know 32 what he's doing, so he's just putting the reaction on it so 33 I can see what's happening on days or whatever. I mean, 34 you know, if he goes to another job, he'll just put "Done 35 hot water, done this." He doesn't - yeah, he doesn't do 36 the word to word, I don't know but -- 37 38 Q. You didn't have a building licence, did you? 39 A. I did not have building licence, no. 40 41 Q. At that time? 42 A. I don't have even today. 43 44 Q. Why didn't you have one then? 45 A. Well, that's something which is my - that was my 46 decision. 47


1 Q. But why not? Why didn't you apply for and obtain a 2 building licence? 3 A. I don't want to tell that you. 4 5 Q. I am sorry? 6 A. I don't want to tell you that. 7 8 MR AGIUS: Well, I ask that the witness indicate why it 9 was he didn't have a building licence. 10 11 THE WITNESS: Building licence - my building licence is 12 irrelevance to the job, is it? 13 14 MR AGIUS: He is professing expertise in relation to 15 building matters and there may be a reason why he didn't 16 have a building licence which reflects upon his expertise. 17 18 THE WITNESS: No. No, that's not a reason. I just didn't 19 have one because I always had licensed people with me. In 20 fact, on this job my engineer, Pierre Dragh, was a licensed 21 builder on that job, so I would say the licensed people on 22 there would have - my sons, I've got two sons in building 23 industry, they've both got the licences now, but I never 24 had one, no. 25 26 MR AGIUS: I ask that the witness be asked to answer why 27 it was that he never applied for or held a building licence 28 at the relevant time. 29 30 THE COMMISSIONER: Well, I think he has answered to some 31 extent but you press for a further answer, do you? 32 33 THE WITNESS: I didn't. I just didn't. I mean is no 34 answer - I'm sorry, I'm not trying to be rude to you, but 35 there's no answer, I just didn't. There was no particular 36 reason why I didn't. I just didn't. I always had people 37 working with me with licences; never had the need to have 38 one. 39 40 MR AGIUS: Q. Well, if that was the case, why did you 41 refuse to answer the question? 42 A. Because I didn't - I didn't know what to say. Why 43 would I - I don't know, I've got no reason for not having 44 the licence. 45 46 MR AGIUS: Thank you. 47


1 THE COMMISSIONER: Thank you, Mr Agius. Mr Morison? 2 3 MR MORISON: No, thank you, Commissioner. 4 5 THE COMMISSIONER: Mr Stoljar? 6 7 MR STOLJAR: Nothing, thank you, Commissioner. 8 9 THE COMMISSIONER: Is there any objection to Mr Stojanovic 10 being excused? 11 12 MR STOLJAR: No. 13 14 THE COMMISSIONER: Mr Stojanovic, you came here because a 15 summons was served on you. You are excused from further 16 attendance on that summons. Thank you for giving up your 17 time today. 18 19 THE WITNESS: Thank you. 20 21 <THE WITNESS WITHDREW 22 23 THE COMMISSIONER: Shall we resume at 2.45pm? 24 25 MR STOLJAR: Yes. 26 27 THE COMMISSIONER: The hearing will resume at 2.45pm. 28 29 LUNCHEON ADJOURNMENT 30 31 THE COMMISSIONER: Yes, Mr Stoljar? 32 33 MR STOLJAR: The next witness is Mr Aaron Golledge. 34 35 <AARON JOHN GOLLEDGE, sworn: [2.45pm] 36 37 <EXAMINATION BY MR STOLJAR: 38 39 MR STOLJAR: Q. Your name is Aaron John Golledge? 40 A. Yes. 41 42 Q. You're a resident of the ACT? 43 A. Yes. 44 45 Q. You're a foreman and site manager for Delorco Pty Ltd? 46 A. Yes. 47

.20/07/2015 CFMEU ACT 484 A J GOLLEDGE (Mr Stoljar) Transcript produced by DTI

1 Q. You have prepared a witness statement dated 3 July 2 2015? 3 A. Yes. 4 5 Q. Do you have a copy of that with you? 6 A. I do. 7 8 Q. Is the content of your statement true and correct? 9 A. Yes. 10 11 MR STOLJAR: Commissioner, I ask that Mr Golledge's 12 statement be received into evidence. 13 14 THE COMMISSIONER: Yes. That will be received into 15 evidence together with its annexures. 16 17 STATEMENT OF AARON JOHN GOLLEDGE DATED 03/07/2015 TOGETHER 18 WITH ANNEXURES 19 20 MR STOLJAR: Q. Mr Golledge, you have been in 21 construction for how long? 22 A. Since I was about 18 years old, so 18 years. 23 24 Q. Do you have a trade, a particular trade? 25 A. I'm a carpenter by trade. 26 27 Q. Were you doing that before you joined Delorco? 28 A. Yes. 29 30 Q. Running your own business or were you working for 31 someone? 32 A. No, working for myself. 33 34 Q. You were doing that for about 12 years or so? 35 A. Yes. 36 37 Q. In the ACT, yes. 38 39 Q. And for the last six years, you have been employed by 40 Delorco as a foreman and site manager? 41 A. Yes. 42 43 Q. In your statement you talk about doing a particular 44 project in Wanniassa, you call it the Erindale site. What 45 was the actual job? 46 A. It was 10 units. 47


1 Q. Ten units? 2 A. Ten units, yes. 3 4 Q. Delorco was the head contractor, was it? 5 A. Yes. 6 7 Q. Claw Constructions was doing the formwork, the steel 8 fixing and the Dincel wall. A Dincel wall, is that in the 9 basement? 10 A. Yes. 11 12 Q. Just explain to the Commission what a Dincel wall is? 13 A. It is a plastic wall that gets core filled. 14 15 Q. With concrete? 16 A. With concrete, which forms the structural outside of 17 the basement building. 18 19 Q. You say that on 21 May 2012 certain things happened. 20 So had Claw already started work by this stage? 21 A. Yes, they had. 22 23 Q. Two Union officials turned up, Mr Vitler and 24 Mr Kivalu. You say: 25 26 They had not asked permission or given 27 24 hours notice. 28 29 They just arrived, did they? 30 A. Yes, that's correct. 31 32 Q. Were they talking about safety issues? 33 A. No. 34 35 Q. What was the issue they were talking about? 36 A. They were saying about Claw, if we employed who - 37 which contractor we had employed to do the steel fixing -- 38 39 Q. Yes. 40 A. -- and formwork. 41 42 Q. Yes. 43 A. We said, "Claw Constructions". 44 45 Q. What did they say? 46 A. They said, "If you continue to use Claw, we'll come 47 down and shut down your site."


1 2 Q. Was anyone else present when you had this conversation 3 with them? 4 A. No. 5 6 Q. But you made a note of it, did you? 7 A. Yes. 8 9 Q. If I take you through to your diary, it should be 10 attached to your statement, Annexure A? 11 A. Could I have that? I didn't get a copy of the -- 12 13 Q. Of the attachment? Yes, I will give you a copy of 14 that. Have you got Annexure A now, it is your site diary? 15 A. Yes. 16 17 Q. Is that your handwriting under the heading "Progress 18 and Notes"? 19 A. Yes, it is. 20 21 Q. Is that your signature under the words "site manager"? 22 A. Yes, it is. 23 24 Q. And "Aaron" is you, obviously? 25 A. Yes. 26 27 Q. This is a note you made 21 May 2012, and just reading 28 your writing, you have put: 29 30 Two x CFMEU Union members ... 31 32 By that you meant Mr Kivalu and Mr Vitler? 33 A. Yes. "Union officials", I should have put, yes. 34 35 Q. It continues: 36 37 ... arrived on site 8am. Did not ask 38 permission or give 24 hours notice. Their 39 reason was about employing contractors who 40 are not signed up to EBA. I took them into 41 the site office ... 42 43 Then you have their names, Anthony Vitler, Halafihi Kivalu. 44 45 Discussed formworkers, steel fixers, etc. 46 47 Just pausing there, did they mention any other contractors?


1 A. No. 2 3 Q. Is that when they said to you words to the effect of 4 what you have put in paragraph 7 of your statement, "If you 5 continue to use them we'll come back tomorrow and shut down 6 your site."? 7 A. Yes. 8 9 Q. That was at 8am. In paragraph 9 of your statement you 10 say that while they were still there, you telephoned your 11 boss, you spoke to him. In the rest of your statement, you 12 have set out some other conversations you had during that 13 day. And then at 4pm, still looking at Annexure A: 14 15 Mr Kivalu called again and said he will 16 stop Claw from working on this site. 17 Couldn't give an answer on why. 18 19 Did you ask him? 20 A. I can recall the conversation. I can't recall the 21 specifics. I am sure I would have asked him why, that's 22 why he couldn't - you know, why I have he didn't give me a 23 reason, but I can't recall the specifics. 24 25 Q. Do you remember if he said how he was proposing to 26 stop Claw from working on the site? 27 A. No. He just said that he will stop - the way that he 28 would stop would be if he closed our job down, then he 29 wouldn't be able to work there. 30 31 Q. Coming back to your statement in paragraph 16, you 32 say: 33 34 Mike Baldwin came out. 35 36 He is from the Master Builders Association, is he? 37 A. Yes. 38 39 Q. He was there on 23 May and he waited for them to turn 40 up, and then you say: 41 42 That afternoon Halafihi telephoned again 43 and asked what was going on and I told him 44 we were installing Dincel wall. He said he 45 will stop the job if we continue. 46 47 Was the reason that he advanced, to your recollection, that


1 you were using Claw? 2 A. Yes. 3 4 Q. Was a safety issue raised at any stage on Erindale? 5 A. Not that I can recall, no. That was not the reason 6 for him coming to the site. 7 8 Q. You have made a note of this in Annexure B of your 9 statement, this is your diary for 23 May. Again, that's 10 your handwriting, is it? 11 A. Yes, it is. 12 13 Q. And your signature? 14 A. Yes, it is. 15 16 Q. Just talk to me about your diary. Did you do that at 17 the end of each day, or what? 18 A. Yes, I did, at the end of each day. 19 20 Q. Was that the last thing you'd do in a day? 21 A. Sometimes I'd do it through the day or - but 22 definitely at the end of the day I would fill notes in. 23 24 Q. I note that you say in your diary for the 23rd: 25 26 Bottom plates of Dincel wall started. 27 28 Claw was actually doing that work, was it? 29 A. Yes. 30 31 Q. You've also got in your diary this line, it is just 32 above where it says "Fihi from CFMEU called 2.37pm" - well, 33 why don't we go through that first, actually: 34 35 Fihi from CFMEU called 2.37pm. Asked what 36 was going on at Wanniassa. 37 38 That's the Erindale site, is it? 39 A. Yes, it is. 40 41 Q. It was in Wanniassa? 42 A. Yes. 43 44 Q. It continues: 45 46 I told him we were installing Dincel. Fihi 47 said he will stop job. I told him to call


1 Sam. 2 3 Do you know whether he did or not? 4 A. I couldn't tell you if he did. I'm not sure. 5 6 Q. Just above that line it says: 7 8 Spoke with Elias from Class 1 Form. He 9 informed me his price will be too high. 10 11 Is that what it says? 12 A. Yes, it does. 13 14 Q. That must be Elias Taleb, is it, or do you not know? 15 A. I do not know who Elias is. 16 17 Q. How did you get his name? 18 A. I can't - I'm not clear on how I got his name or 19 number. I didn't know him before. 20 21 Q. You didn't know him before? 22 A. No. 23 24 Q. Have you ever done any jobs with Class 1 Form? 25 A. No. 26 27 Q. Do you have any memory of this conversation you had 28 with Elias? 29 A. No. 30 31 Q. Do you think it likely that someone from the CFMEU 32 gave you his name and number, or you don't know? 33 A. Yes, it's very likely that's how I got it. 34 35 Q. Did you have any conversation with people from the 36 CFMEU about getting people other than Claw to do the 37 formwork? 38 A. No, I can't recall. 39 40 Q. You can't recall or you say "no"? 41 A. I can't recall. 42 43 Q. Did you speak to Troy Armstrong at any stage? 44 A. Yes, I did. 45 46 Q. You rang him up, did you? 47 A. Yes.


1 2 Q. Did you talk to him about updating your site safety 3 plan and your SWMS, do you know, or can you not remember? 4 A. I didn't remember at the time of making my statement, 5 but I do recall that we did monitor the SWMS and we did do 6 some improvements to it. 7 8 Q. Had the CFMEU raised any concern about the shed not 9 having a microwave oven? 10 A. Not that I can recall. 11 12 Q. Had they raised any concerns about about safety signs 13 not in place or a safe evacuation point? 14 A. Not that I can recall. 15 16 Q. Did you tell Mr Armstrong that the CFMEU had said that 17 Claw was a non-compliant CFMEU contractor and they wanted 18 them kicked off the site? 19 A. Yes. 20 21 Q. You did tell him that? 22 A. I told Troy that, yes. 23 24 Q. Did you tell him that the CFMEU had found another 25 formwork company called Class 1 and that they would take 26 over the contract? 27 A. I don't recall that part of the conversation. 28 29 Q. Did you tell Mr Armstrong that the CFMEU had said they 30 would constantly close the site down until they became 31 compliant? 32 A. Sorry, can you say that again? 33 34 Q. Yes. Did you tell Mr Armstrong that the CFMEU said 35 that they would constantly close the site down until the 36 site, it must mean, became compliant? 37 A. Yes. 38 39 Q. Did you tell Mr Armstrong in this call that the CFMEU 40 organised for Class 1 to take over the job? 41 A. I can't recall. 42 43 Q. Claw had a contract by this stage, I take it? 44 A. Yes. Yes. 45 46 Q. And what happened, did you keep using Claw? 47 A. Yes, we did.


1 2 Q. What did you say to the CFMEU about that? Did you 3 have any discussion with them about that? 4 A. No. No further discussion. 5 6 Q. You involved Mike Baldwin, though? 7 A. Yes. 8 9 Q. In paragraph 18 and following of your statement, you 10 deal with an early learning childcare centre in Crace and 11 that was from around December 2013. You say in 19 that 12 around Tuesday, 10 June 2014, the officials from the Union 13 arrived. Did you get any notice of that? 14 A. No. 15 16 Q. What happened? Just tell us about what happened on 17 that day? That was just last year, was it? 18 A. Yes, it was last year. 19 20 Q. Tell us about what happened? 21 A. They wanted us to close down the site because it was a 22 lockdown weekend. 23 24 Q. It was a lockdown weekend? 25 A. Yes. 26 27 Q. Were there CFMEU members on the site? 28 A. Sorry? 29 30 Q. How many employees did you have on the site at that 31 point? 32 A. I'd say around six - six to eight. 33 34 Q. Were they CFMEU members? 35 A. No. 36 37 Q. Any of them? 38 A. No. 39 40 Q. Are you a member? 41 A. No. 42 43 Q. So they just turned up. Paragraph 20, just reading 44 it, is a bit unclear, but is the first thing that happened 45 is that they said it was a lockdown weekend? 46 A. Yes. 47


1 Q. Where were they at this time on the site? There were 2 eight officials, were they just wandering around, or what? 3 A. They were outside the gate. I wouldn't let them in 4 the site at this time. 5 6 Q. Right. 7 A. I told them they had to wait outside until my boss Sam 8 Delorenzo arrived, which they did. Dusty tried to walk in 9 a couple of times, but he did stay out, and then they 10 waited outside until Sam Delorenzo turned up. 11 12 Q. At this point they were just saying it was a lockdown 13 weekend? 14 A. Yes. 15 16 Q. Did you just keep working, or what happened? 17 A. No. I mean, there were some people working inside and 18 around the back so, yes, they would have continued working. 19 We hadn't - I hadn't told anyone to stop work at that 20 point. 21 22 Q. In paragraph 20 you make a comment about shutting the 23 site down due to, you say, so-called safety concerns. What 24 happened there, just tell us about that? 25 A. From what I can recall, to get permission to come on 26 to site, Sam or myself, I can't recall, asked what was 27 their reason for coming on, and then they said around the 28 other side of the site there was some workers - a worker 29 not wearing a hardhat. 30 31 Q. A worker not wearing a hardhat? 32 A. Yes. 33 34 Q. Just the one? 35 A. From what I can recall, yes. 36 37 Q. Was he wearing one or not? 38 A. I could not see him from where I was at that time. 39 40 Q. Couldn't he just put it back on? 41 A. Yes, he could have put it back on, yes. 42 43 Q. What happened then? 44 A. Then they came - by that time Sam was there and Sam 45 had - they came into the site office and had some 46 discussions with Sam. 47


1 Q. Did work get stopped? 2 A. Not at that point, no. 3 4 Q. When you say "at that point", did it get stopped -- 5 A. No, work didn't stop. We didn't close the site down 6 that day. So, no, work didn't stop. 7 8 Q. It just kept going? 9 A. Yes. 10 11 Q. Was WorkSafe involved in any of this? 12 A. No. 13 14 Q. Did you get an improvement notice or anything like 15 that? 16 A. No. 17 18 Q. I take it you didn't get a prohibition notice either? 19 A. No. 20 21 Q. Did anyone talk about Claw on that day, to your 22 hearing? 23 A. No, not to me. 24 25 MR STOLJAR: Nothing further. Thank you, Commissioner. 26 27 THE COMMISSIONER: Yes, Mr Agius. 28 29 <EXAMINATION BY MR AGIUS: 30 31 MR AGIUS: Q. Mr Golledge, I put it to you that at no 32 time during the visit on 21 May did Mr Vitler, that is, 33 Anthony Vitler, ever say words to the effect, "If you 34 continue to use them we will come back tomorrow and shut 35 down your site"? 36 A. That is what Anthony - well, I don't know if it was 37 Anthony or Halafihi but that's what they said. 38 39 Q. One of them said it? When you say "they", do you mean 40 one of them said it and you're not sure which, or do you 41 mean they both said it at the same time or at different 42 times? 43 A. No, one of them said it but I do not know which one. 44 45 Q. My learned friend put to you that you made a note of 46 that meeting and you were taken to Annexure A. Would you 47 agree with me that nowhere in your note do you refer to

.20/07/2015 CFMEU ACT 494 A J GOLLEDGE (Mr Agius) Transcript produced by DTI

1 anything being said by either of these gentlemen to the 2 effect that if you continued to use Claw, the Union would 3 be back tomorrow to shut down the site? 4 A. I did not put that in my diary notes, but that is what 5 was said on that day. 6 7 Q. What you have written is "Discussed formworkers, steel 8 fixers, et cetera". If that was said to you, there would 9 be no reason why you wouldn't put it in your diary note, 10 would there? 11 A. Well, one reason is I've ran out of lines on my diary. 12 I know that's not an excuse, but there's no other work 13 there. But I didn't put everything down in my diary. 14 15 Q. How is it that you've run out of lines on your diary? 16 There's more than half a line after the "etc", stop, and 17 there is a full line below that and you would have had the 18 balance of that page to write in if you'd wanted, wouldn't 19 you? 20 A. I could have, but I did not put everything down in my 21 diary. 22 23 Q. "Threatened to close down site", five words, plenty of 24 room for those? 25 A. Mmm. 26 27 Q. Do you agree? 28 A. I don't agree that that's not what was said. I agree 29 it's not in my diary, but what was said to me is what they 30 said. 31 32 Q. You agree that if you had wanted to write down those 33 words, there was plenty of room for you to write them? 34 A. Agreed, I could have written it down. 35 36 Q. Might it be that you didn't write them because that 37 wasn't said at that time? 38 A. No. 39 40 Q. Mr Delorenzo, he's the owner of Delorco, is he not? 41 A. Yes, he is. 42 43 Q. He says that you telephoned him and said: 44 45 The Union is here. They are asking 46 Claw Construction to stop working. 47


1 What do you say to that? Is that what you said to 2 Mr Delorenzo, or is he mistaken? 3 A. Could you ask that again, please? 4 5 Q. Mr Delorenzo says that you telephoned him and you said 6 to him, I'm quoting from his statement: 7 8 The Union is here. They are asking 9 Claw Construction to stop working. 10 11 A. Well, they weren't asking Claw Constructions directly 12 because they weren't there. They were asking me to stop 13 Claw Constructions from working. 14 15 Q. He said that he responded to you by saying words to 16 the effect: 17 18 We are not going to stop Claw Construction 19 from working. If the Union wants to talk 20 to anyone, ask them to talk to me and 21 I will tell them we aren't stopping 22 Claw Construction from working. 23 24 Did he say that to you? 25 A. Not that I can recall. He did say to me, "We are 26 obliged not to stop work or shut the site down, and if Claw 27 wants to continue work, they shall do so." 28 29 Q. What was the point of talking about Claw wanting to 30 continue work if they weren't on site? 31 A. Sorry? 32 33 Q. What was the point of you being told that if 34 Claw Constructions wants to continue work, they should 35 continue, but if they want to stop, they can stop, if 36 Claw Constructions was not on site? 37 A. Well, they weren't on site at the time the Union 38 members were there. In my diary, which I can't recall 39 everything on that day, but, on my diary, it has that there 40 was two formworkers on site. It's actually not on the 41 photocopy page here. It's on -- 42 43 Q. Do you have your original diary there? 44 A. I do. It is on the left-hand page of that diary. 45 46 MR AGIUS: Mr Commissioner, might we see that? 47


1 THE COMMISSIONER: Yes. 2 3 MR STOLJAR: Where was it? 4 5 THE WITNESS: It would be on the 21st of the 5th, date. 6 7 THE COMMISSIONER: Q. He said it was facing the entry 8 which is annexed to his -- 9 10 THE WITNESS: It would be the left-hand page where it's 11 got "Workers". 12 13 MR AGIUS: Q. I'll pass you a little book of stickers. 14 You might be able to put a sticker on it indicating where 15 it is. 16 A. (Witness does as requested). 17 18 Q. The site diary for this day, 21 May, is actually two 19 pages, not the one page that we've got? 20 A. Mmm-hmm. 21 22 Q. Is that right? 23 A. Yes. 24 25 Q. On the left-hand side, with the diary open, the 26 left-hand side page, alongside "reinforcement fixers", 27 there looks to be a dot and then the numeral "2" is 28 written. Do you see that? 29 A. Yes, that's correct. 30 31 Q. That is what you are referring to? 32 A. Yes. 33 34 Q. Does that mean you did have two Claw Construction 35 workers on site on that day? 36 A. Yes. 37 38 Q. That would be consistent with the Union telling you 39 that they wanted Claw Construction to stop work? 40 A. They did want Claw Construction to stop work, but, 41 yes, that's true. 42 43 Q. The other feature of this diary is that you had plenty 44 of room on the left-hand page, if you had used up the 45 right-hand page, to write a full note of the threat to shut 46 down your site if that had happened, didn't you? 47 A. I could have.


1 2 Q. By you could have, do you mean you could have written 3 it down had you chosen? 4 A. If I'd chosen to, yes. 5 6 Q. Wasn't that the most important thing that they said to 7 you, on your evidence, a threat to shut down the site? 8 A. It was pretty important, yes. 9 10 Q. It is the most important thing they said, wasn't it, 11 if we accept your evidence? 12 A. It was important. 13 14 Q. And yet you don't make a note of it? 15 A. No. 16 17 MR AGIUS: Mr Commissioner, I invite my learned friend to 18 tender the left-hand side page of the diary in due course. 19 20 MR STOLJAR: Yes, I will do that, Commissioner. It may be 21 more convenient, particularly to Mr Golledge, if I just 22 tender a photocopy of that page which we will attend to. 23 24 THE COMMISSIONER: Perhaps that can be done now. 25 26 MR AGIUS: Q. What you took the Union officers to be 27 saying to you is that Claw Construction was a non-compliant 28 business? 29 A. That's what they said, yes. 30 31 Q. What you say in paragraph 8 is that you took this to 32 mean the Union were saying that Claw Construction was a 33 non-compliant business. So you inferred that they were 34 telling you that Claw Construction was non-compliant; is 35 that right? 36 A. Yes. 37 38 Q. Did they use the word "non-compliant" or is that your 39 expression? 40 A. I can't recall if that was mine or theirs. 41 42 Q. You say in the next sentence: 43 44 However in my opinion Claw Construction 45 seemed completely compliant. 46 47 What did you mean by the words "seemed completely


1 compliant"? 2 A. Well, in our tender process, Delorco only contracts 3 compliant contractors. 4 5 Q. What do you mean then by "seemed completely 6 compliant"? 7 A. I didn't see anything wrong with Claw Constructions. 8 9 Q. Did you know what they were paying their workers? 10 A. No. 11 12 Q. Did you know whether or not they were paying into 13 ACIRT? 14 A. No. 15 16 Q. Did you know whether or not they were putting money 17 aside in case of redundancy? 18 A. No. 19 20 Q. Did you know whether their workers' compensation 21 policy was sufficiently broad to cover all of the people 22 that they might have on site and in their employment? 23 A. No. 24 25 Q. So how could you say that in your opinion 26 Claw Construction seemed completely compliant? 27 A. Well, in my opinion, the safety on site is - there was 28 no problem with their safety and Delorco in the tender 29 process, which I'm not involved in, contracts the 30 contractor, so -- 31 32 Q. "So" what? How does that bear upon 33 Claw Constructions, in your opinion, seeming to be 34 completely compliant? 35 A. I didn't see anything wrong with Claw Constructions 36 being compliant. 37 38 Q. I just want to make sure you have given us all you 39 want to say: 40 41 I didn't see anything wrong with 42 Claw Constructions being compliant. 43 44 Do you want to say anymore? 45 A. No, that's all. 46 47 Q. You didn't know one way or the other, did you?


1 2 MR STOLJAR: I object to that, Commissioner. It is 3 becoming very unclear what we are talking about, compliant 4 with what? This witness is saying that he regarded Claw as 5 compliant with - he has identified safety issues, and the 6 like. My friend is talking about -- 7 8 MR AGIUS: He hasn't done that. 9 10 MR STOLJAR: That's exactly what he's done. My friend is 11 talking about compliance with something else. When my 12 friend says "You don't know one way or the other", it is 13 really very unclear what he is talking about. 14 15 MR AGIUS: What I asked him was what he meant by 16 completely compliant. "Completely compliant" is his 17 expression and I have asked him to say what it meant, and 18 then I put a list of things that he didn't know anything 19 about, and now I am asking him, well, how could he say that 20 they were completely compliant? What other things did he 21 have in mind when he used the expression "They seemed 22 completely compliant". 23 24 THE COMMISSIONER: Yes. I will allow your question. Do 25 you want to formulate another one, or do you have a record 26 of the previous one? 27 28 MR AGIUS: Yes, I will formulate another one. 29 30 Q. When you wrote, "However, in my opinion 31 Claw Construction seemed completely compliant", what were 32 you intending to convey by those words? 33 A. That I believed that it is covered in our tender 34 process. 35 36 Q. What is covered in your tender process? 37 A. That the contractor is compliant. 38 39 Q. Compliant with what? 40 A. Whatever they need to be compliant with. I'm not 41 involved in that part of the tender process, so I can't 42 answer your question. 43 44 Q. Is the word "compliant" used in the tender process? 45 A. I couldn't tell you. 46 47 Q. How would you be able to form an opinion that


1 Claw Construction seemed completely compliant if you're not 2 involved in the tender process? 3 A. I can form an opinion because I believe and trust in 4 Delorco hiring compliant contractors, that's the -- 5 6 Q. But you can't tell us what "compliant" means? 7 A. No. 8 9 Q. I don't mean to be disrespectful to you, but does that 10 not seem a nonsense to you, that you can use the expression 11 "completely compliant", but you can't say what "completely 12 compliant" means? 13 A. True. 14 15 Q. Can I move to the Crace - C-R-A-C-E - Early Learning 16 Centre? 17 A. Yes. 18 19 Q. Did I pronounce that correctly? 20 A. Yes, that's correct. 21 22 Q. Thank you. On that day, would you agree that the job 23 was nearing completion? 24 A. Nearing completion? 25 26 Q. Yes. 27 A. I'm just trying to recall when we finished - what 28 month we finished that job. It was more than halfway 29 through. Yes, 50 per cent. 30 31 Q. I suggest to you that there were no structural trades 32 on the job, what do you say to that? 33 A. That's correct. 34 35 Q. There was no sign of Claw Construction on the job? 36 A. That's correct. 37 38 Q. And there were only finishing trades on the job? 39 A. That's correct. 40 41 Q. You agree that that was a lockdown day? 42 A. Yes. 43 44 Q. Did you know that that was -- 45 A. I'm sorry, I don't - I don't agree that it was - I was 46 told it was a lockdown day. I'm not agreeing that it is a 47 lockdown day.


1 2 Q. Do you know whether or not the MBA had agreed to that 3 day as being a lockdown day? 4 A. I wasn't aware, no. 5 6 Q. Do you know that the MBA had published it on its 7 website? 8 A. I wasn't aware. 9 10 Q. I put it to you that there were a number of safety 11 matters on the site on that day. I'll give you a list of 12 them and ask you about each one. There was plant/machinery 13 operating next to workers, and there was no delineation 14 between the operating plant/machinery and the workers, what 15 do you say to that? 16 A. I don't recall there being any plant there on that 17 day. I could be mistaken, but I don't recall there being 18 any plant. 19 20 Q. There were several electrical leads joined together 21 and running across the internal road on the building site? 22 A. That is incorrect. 23 24 Q. There were vehicles passing over the electrical leads? 25 A. That is incorrect. On the inside of the site? 26 27 Q. All I can put to you is running across the internal 28 road on the building site. 29 A. Incorrect. 30 31 Q. There were trip hazards in the walkways? 32 A. Define a - do they define what the trip hazard was? 33 Was it a bit of timber? Was it a bit of rubbish? 34 35 Q. A trip hazard is something one could trip over. 36 Walkways are meant to be clear of trip hazards, you agree 37 with that, don't you? 38 A. I agree they should be clear, yes. I don't -- 39 40 Q. Of trip hazards. 41 A. Of trip hazards they should be, yes. 42 43 Q. I'm suggesting to you that there were several trip 44 hazards in the walkways? 45 A. I don't recall. No. 46 47 Q. There were workers standing on milk crates and using


1 them as work platforms? 2 A. I don't recall. 3 4 Q. Do you know when the Union officers visited the site, 5 they took photographs? 6 A. I do remember them taking photographs, yes. 7 8 Q. Did you see what it was that they were photographing? 9 A. They took a photograph of an electrical board that was 10 two days out of date. The sticker on it was two days out - 11 two or three days out, I recall that. 12 13 Q. That's a safety matter, isn't it? 14 A. That is a safety matter, yes. 15 16 Q. So it is not right to say that there were no safety 17 matters? 18 A. That one was definitely a safety matter. We let that 19 one slip. 20 21 Q. Did they take photographs of electrical leading being 22 joined together running across the internal road, did you 23 see them take those photographs? 24 A. I did not see those photographs, no. 25 26 Q. You didn't see that? 27 A. I didn't see that, no. 28 29 Q. They took photographs of trip hazards in the walkways. 30 You didn't see the trip hazards? 31 A. Not that I can recall. 32 33 Q. They took photographs of workers standing on milk 34 crates and using them as work platforms, did you see that? 35 A. I don't recall. 36 37 Q. All of those things are safety hazards, are they not? 38 A. Yes. 39 40 Q. Were you privy to any conversation between the Union 41 officers and Sam Delorenzo on that day? 42 A. I was in the office with Dean Hall and Sam Delorenzo, 43 yes. 44 45 Q. Did you hear a conversation in which Mr Delorenzo was 46 asked to produce the safety management plan for the site? 47 A. I do recall him pulling out the safety management


1 plan, yes. 2 3 Q. I'm sorry, you do recall? I just missed what you 4 said. I'm waiting for it to come up. 5 A. Him pulling out the safety management plan. 6 7 Q. I suggest to you that he didn't pull out the safety 8 management plan, that what he said was that he didn't have 9 one there? 10 A. I don't recall that. 11 12 Q. I suggest to you that he agreed with one of the Union 13 representatives, Mr Dean Hall, that it was a mandatory 14 requirement to have a safety management plan on site? 15 A. Are you asking me if I recall that part of the 16 conversation or -- 17 18 Q. Yes. 19 A. I don't recall. 20 21 Q. That it was put to him, and he agreed, that it was a 22 keystone for safety, what do you say about that? 23 A. I don't recall that part of the conversation. 24 25 Q. Did you hear Mr Delorenzo say to Mr Hall that he 26 didn't have a Union EBA? 27 A. Sorry, say that again? 28 29 Q. Did Mr Delorenzo say to Mr Hall, one of the Union 30 officers, that he, Mr Delorenzo, didn't have a Union EBA? 31 A. That Sam didn't have a Union EBA? 32 33 Q. Yes. 34 A. I didn't, no, hear that. 35 36 Q. You didn't hear that? 37 A. No. 38 39 Q. Do you say that wasn't said or, if it was, you didn't 40 hear it? 41 A. If it was, I didn't hear it, no. 42 43 Q. Mr Hall said to him, "What's that got to do with 44 safety?"? 45 A. Can't recall. 46 47 Q. Did you hear Mr Delorenzo say words to this effect:


1 "That's why we are working on Tuesday on a lockdown 2 weekend. We are behind program. You know how tough I have 3 been doing it lately. You know I lost heaps of money on 4 the ASIO project working for urban contractors. I have 5 been affected by a number of insolvencies over the last 6 couple of years in Canberra and I have taken this job on a 7 low margin basis. I am struggling." Did you hear any of 8 that said by Mr Delorenzo? 9 A. No. 10 11 Q. Are you saying that that wasn't said or that -- 12 A. I'm not saying it wasn't -- 13 14 Q. -- it may have been said and you didn't hear it? 15 A. It may have been said and I didn't hear it. 16 17 Q. Did you hear Mr Delorenzo invite Mr Hall for a meal at 18 Hee's Chinese Restaurant? 19 A. No. 20 21 Q. Did you hear Mr Delorenzo agree to fix the safety on 22 site and to tell the contractors to ensure that they 23 utilised proper safety? 24 A. No. 25 26 Q. Were you present when Mr Hall provided Mr Delorenzo 27 with a Work Health and Safety Notice? 28 A. No. 29 30 Q. Did you -- 31 A. I'm sorry, was I present? 32 33 Q. Yes. 34 A. I was in the room. I cannot recall a notice being 35 handed in, no. 36 37 Q. Did you see the Work Health and Safety Notice or a 38 Work Health and Safety Notice that had been issued by 39 Mr Hall? 40 A. Not that I can recall. 41 42 Q. Did you have to attend to any of the work to cure the 43 defects to which the Work Health and Safety Notice 44 referred? 45 A. If I knew what those defects were, I might be able to 46 recall if I attended to them. I know I attended to fixing 47 - getting the electrician back to update the electrical


1 board. I don't know if that was on a Safety Notice or not, 2 but that got done. 3 4 Q. Did you work on a safety management plan? 5 A. With Sam? 6 7 Q. With anybody. Following this meeting, did you work on 8 a safety management plan for the site? 9 A. Not that I can recall. 10 11 Q. Did go around and look for trip hazards and remove 12 them? 13 A. Yes. 14 15 Q. You did that? 16 A. Yes. 17 18 Q. Sorry? 19 A. Yes. 20 21 Q. As a result of what Mr Delorenzo had been told by the 22 Union? 23 A. I remember - the only part I can remember was there 24 was a gutter that had a plank on it to get wheelbarrow 25 access, and I had to remove the plank. That's the only 26 part I remember, access and egress. 27 28 Q. What about my question: was that as a result of what 29 Mr Delorenzo had been told by the Union? 30 A. I'm not too sure. I'd assume so. 31 32 Q. What motivated you to go and move that plank? 33 A. Well, Sam would have asked me to or I would have seen 34 it. 35 36 Q. What about doing anything about electrical leads 37 joined together and running across the road, did you do 38 anything about that? 39 A. I don't recall there being any leads across the road. 40 41 Q. What about workers working on milk crates and using 42 them as work platforms, did you do anything about that? 43 A. I don't recall. 44 45 Q. That's not a safe practice, is it? 46 A. I'm not saying we didn't do anything about it. 47 I can't recall any worker working on a milk crate at the


1 time. 2 3 Q. I am suggesting to you, and I'm asking for your 4 opinion, that's not a safe practice, is it? 5 A. Working on a milk crate? 6 7 Q. Using a milk crate, that's not a safe work practice? 8 A. No, it's not. 9 10 Q. See, I am suggesting to you that there were a number 11 of safety issues raised during the course of the Union 12 visit to the site on 10 June 2014, what do you say to that? 13 A. There were some raised. Could you ask that again, 14 please? 15 16 Q. I am suggesting to you that there were a number of 17 safety issues raised during the Union visit to that site on 18 10 June 2014? 19 A. Yes. Yes, there were. 20 21 Q. So if you inferred earlier in your evidence to my 22 learned friend that there were no safety issues, then you 23 were mistaken, were you? 24 A. That's correct, but that wasn't the reason for them 25 coming on to the job. 26 27 Q. That's your opinion, though, isn't it? 28 A. Well, I don't know how they could see, if so, someone 29 inside working on a milk crate from outside the building. 30 31 Q. Do you think they could see electrical cords joined 32 together, running across a road and being driven over by 33 vehicles? 34 A. They could have, if that was the case, yes. 35 36 Q. Might you also have been mistaken when you attribute 37 to one of the Union officers who visited the office in May 38 of 2012, might you be mistaken when you say in your 39 statement and in your oral evidence, that one of them said, 40 "We will come back tomorrow and shut down your site"? 41 A. Definitely not mistaken. 42 43 Q. Even though it is not in your notes? 44 A. Even though it's not in my notes. I can remember 45 quite clearly. 46 47 MR AGIUS: Thank you, Commissioner.


1 2 THE COMMISSIONER: Thank you, Mr Agius. Mr Morison? 3 4 MR MORISON: Thank you, Commissioner. 5 6 <EXAMINATION BY MR MORISON: 7 8 MR MORISON: Q. I appear for Sam Delorenzo, sir. Would 9 this be fair to say, following on from the questions that 10 Mr Agius has been asking you, that there was a conversation 11 between Dean Hall and Mr Delorenzo where Mr Hall said that 12 there were some safety problems and that Dean Hall told 13 Mr Delorenzo that he could not see any major safety issue 14 on the Crace site, at least nothing that would harm 15 anyone - this is what Mr Delorenzo told Dean - that nothing 16 that would harm him or nothing that could not be fixed, and 17 that Mr Delorenzo said words to the effect, "Dean, if you 18 look hard enough you'll find some safety risk because it is 19 a construction site, but that doesn't mean there's an 20 issue." Do you recall words to that effect and that 21 happening? 22 A. I don't recall, I'm sorry. 23 24 Q. You walked around the site with Mr Delorenzo and 25 Dean Hall? 26 A. Yes. 27 28 Q. Would it be fair to say that Mr Hall could not find 29 any major issue and that there was no-one working in the 30 areas that were supposed to be areas that posed a safety 31 concern? 32 A. Yes. 33 34 Q. There were a couple of things to fix, and you fixed 35 them in a couple of hours after Mr Hall left? 36 A. After he - yes. Yes. 37 38 Q. There was no Union members on the site; is that right? 39 A. No, there was not. Not that I was aware, no. 40 41 MR MORISON: Nothing further. 42 43 THE COMMISSIONER: Thank you. Yes, Mr Stoljar? 44 45 MR STOLJAR: Nothing, thank you, Commissioner. 46 47 THE COMMISSIONER: Is it in order for Mr Golledge to be

.20/07/2015 CFMEU ACT 508 A J GOLLEDGE (Mr Morison) Transcript produced by DTI

1 excused? 2 3 MR STOLJAR: Yes. 4 5 THE COMMISSIONER: Mr Golledge, the summons that brought 6 you here, can I indicate that you are excused from further 7 attendance on that summons. You are free to leave the 8 witness box now. Thank you for coming today. 9 10 THE WITNESS: Thank you. 11 12 <THE WITNESS WITHDREW 13 14 MR STOLJAR: Commissioner, I had been intending to call 15 Mr Bartlett but Mr Agius, as he indicated to you this 16 morning, needs a bit more time. 17 18 THE COMMISSIONER: Yes. 19 20 MR STOLJAR: He was the only other witness for today and 21 I'll call him first thing in the morning. 22 23 THE COMMISSIONER: Mr Delorenzo tomorrow? 24 25 MR STOLJAR: He is not available until 24 July, I think. 26 We'll have to fit him in some time around then. 27 28 THE COMMISSIONER: Yes. So do you propose we adjourn 29 until 10 tomorrow? 30 31 MR STOLJAR: Yes. 32 33 THE COMMISSIONER: You need to tender that page from the 34 diary. 35 36 MR STOLJAR: Yes. I tender the other page of 21 May 2012 37 from Mr Golledge's diary. 38 39 GOLLEDGE MFI-1 FURTHER PAGE FROM DIARY OF AARON GOLLEDGE 40 DATED 21/05/2012 41 42 THE COMMISSIONER: The hearing will resume at 10 tomorrow 43 morning. 44 45 AT 3.37PM, THE COMMISSION WAS ADJOURNED TO TUESDAY, 21 JULY 46 2015 AT 10AM 47

.20/07/2015 CFMEU ACT 509 A J GOLLEDGE (Mr Morison) Transcript produced by DTI

transcript 20 july 2015 - trade web view1 the commissioner: i think "improper" is a word...

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