PN1

THE COMMISSIONER: I will just start with appearances.

PN2

MR M FOLLETT: If the Commission pleases, I seek permission to appear on behalf of the applicant, John Holland Queensland Pty Ltd.

PN3

THE COMMISSIONER: Thanks, Mr Follett.

PN4

MR C MASSY: May it please the Commission, I seek permission to appear on behalf of the CFMEU, instructed by Hall Payne Lawyers, and also on behalf of the CEPU, instructed directly by Ms Reid of the CEPU.

PN5

THE COMMISSIONER: Thank you.

PN6

MR M GIBIAN: I'm Mark Gibian and I seek permission to appear for the AWU. Mr Crawford is with me.

PN7

THE COMMISSIONER: Thank you. Now there were some submissions on the AWU - whether the AWU had a right to be heard or whether I should exercise discretion. I take it no one is objecting to anyone being legally represented?

PN8

MR FOLLETT: Not for our part, Commissioner.

PN9

MR MASSY: Not for the CFMEU or CEPU.

PN10

THE COMMISSIONER: All right. My inclination was to exercise my discretion to grant permission to the AWU on the basis of the material filed, including cross‑examination. I think that makes the right to be heard issue moot. Any issue with that?

PN11

MR GIBIAN: No, Commissioner.

PN12

THE COMMISSIONER: No? All right. Legal representation is granted. The AWU has been granted permission. I will exercise my discretion to do that. That deals with that. Any housekeeping issues? I guess my first question is how many witnesses are we going to be requiring?

PN13

MR FOLLETT: We have two witnesses, Commissioner, and I understand they are both required for cross-examination.

PN14

THE COMMISSIONER: Yes.

PN15

MR FOLLETT: Then there's an expert report provided by the AWU and there will be some sort cross-examination of that expert.

PN16

THE COMMISSIONER: All right.

PN17

MR FOLLETT: I think that makes three.

PN18

THE COMMISSIONER: All right.

PN19

MR GIBIAN: Yes, I think that's right, but there was just a matter I was going to raise in relation to Mr Faruqi, who is the AWU witness, which I have raised with my friends. We were informed last night that he had cold-like symptoms and he has now reported to us that he has something of a sore throat and I think a colleague who was positive, but he has negative-tested on RATs, but I thought we should disclose that in case it caused concern to the Commission or to the other side.

PN20

THE COMMISSIONER: He is here?

PN21

MR GIBIAN: He is here, yes, he is physically here. I just thought I should disclose that if it caused concern to anyone. I understand it doesn't from my friends, but I thought we should at least disclose it.

PN22

THE COMMISSIONER: All right, thanks for that. I am content to proceed on the basis of that information.

PN23

Given the AWU is the party that's raised objection, my inclination was to hear from the AWU first, Mr Gibian.

PN24

MR GIBIAN: Yes. The other issue I might just raise at the outset was we received last evening a second statement of Mr Priem. I am not sure when is appropriate to deal with that, but it probably is at the outset.

PN25

THE COMMISSIONER: Yes.

PN26

MR GIBIAN: Particularly if Mr Faruqi is to be dealt with first because it affects his evidence. We do object to its receipt and its reliance at this stage. I'm sure you've seen it, Commissioner. It really deals with two subject matters, both of which causes prejudice.

PN27

Firstly, from paragraph 3 onwards, or paragraph 3 to 6, it makes various generalised assertions in conclusionary terms, including utilising legal language, in relation to some of the roles that were referred to in his earlier statements. That material is perhaps objectionable in any event, separately to the timing of its receipt, but causes us prejudice because it is, first, not responsive to any evidence that was filed by the AWU and it ought to have been put on in chief if this is material that was sought to be relied upon. Had it been done so, or even done so a short period of time before yesterday afternoon, we may well have sought to particularly access documents in relation to the particular roles that are referred to and, given the timing, we are obviously denied an opportunity to do so, or to investigate those matters at all.

PN28

Secondly, from paragraph 9 onwards, it deals with Mr Faruqi's report and raises perhaps four matters that it is said either were inaccurately represented in his report, or his report was founded upon an inaccurate understanding of the way in which the project would be implemented in certain respects which may have affected the outcome.

PN29

Now, we can ask him to respond to those, but it's not a fair process for him to have to do so on the run. If the statement had been provided, as I say, even a short number of days ago, he would have been able to assess those matters and make adjustments to the extent he thought appropriate to the material that is in his report and, given the timing, he is denied the opportunity to address that in a comprehensive way.

PN30

THE COMMISSIONER: Thank you, Mr Gibian.

PN31

MR FOLLETT: So far as I am instructed, Commissioner, this very matter was the subject of some discussion before you when the directions were initially made about the difficulty of the AWU not putting on its case before the applicant and the other unions did. We are in a scenario now where we have to go first with a bare scintilla of an identification of what points the AWU was to be taking.

PN32

They have then put on submissions and material for the first time which articulated in a more concrete fashion the nature of the case they sought to advance. The position is we have had no opportunity to respond to that, except insofar as we have provided the statement.

PN33

The ordinary course, indeed, Commissioner, would be that we could simply seek leave to ask the questions orally today. We thought we would do what we could to give as much advance notice as we could of the nature of that responsive evidence and that's why we filed the statement last night.

PN34

Irrespective of the time, the situation is we have had no opportunity to deal with the case advanced by the AWU with their evidence for the articulation of their legal objections until we received their material, and any denial now of us leading evidence and making submissions in response to that material received for the first time would, in our respectful submission, be a fairly clear denial of procedural fairness.

PN35

MR GIBIAN: Can I respond to that just briefly? Obviously, the directions were made, my learned friend's client knew of those directions for the whole period. If, upon receipt of the AWU's material two weeks ago, there was some difficulty that was apprehended, or some need to reply to it apprehended, the proper course was not, unannounced the afternoon before, when I was already on the way to Brisbane, to file a further statement, but to seek a variation to the directions and, if more time was required, a variation of the hearing date, rather than, unannounced, springing something - well, I think it was announced midway through the afternoon that something was coming yesterday, but filed later in the evening yesterday/last night, in a manner which deprives us of the opportunity of properly dealing with that material.

PN36

That would be the proper course for my learned friend to, on behalf of his client, adopt if they had some difficulty in dealing with the AWU material. They didn't do that; they chose to spring it the evening before the hearing.

PN37

THE COMMISSIONER: Anything else?

PN38

MR FOLLETT: Other than categorically rejecting the pejorative description inherent in my learned friend's response, no, Commissioner.

PN39

THE COMMISSIONER: All right. Look, I appreciate it's a bit of a balancing act, this one, but I think what I'll do is I will allow the extra statement to come in. Obviously, some of the matters could be raised in oral evidence anyway because the relevant witness is going to be giving evidence anyway. To the extent that the AWU is of a view that it may suffer prejudice because of the way the statement has come in so late, my inclination is to allow the evidence to be heard and then perhaps give you an opportunity to raise the issue again before we get to submissions.

PN40

MR GIBIAN: May it please.

PN41

THE COMMISSIONER: All right, anything else before we get to the evidence?

PN42

MR FOLLETT: No, Commissioner.

PN43

THE COMMISSIONER: No, all right. Mr Gibian, do you wish to call Mr Faruqi?

PN44

MR GIBIAN: Yes, I will call Mr Faruqi.

PN45

MR FOLLETT: I think my learned friend's position is that both of my witnesses should be out of the Commission whilst Mr Faruqi gives his evidence, and I think that is an appropriate course.

PN46

THE COMMISSIONER: Yes, I think I agree.

PN47

THE ASSOCIATE: Please state your full name and address for the record.

PN48

MR FARUQI: Omar (Indistinct) Faruqi, (address supplied).

<OMAR FARUQI, AFFIRMED [10.15 AM]

EXAMINATION-IN-CHIEF BY MR GIBIAN [10.15 AM]

PN49

THE COMMISSIONER: Thanks, Mr Gibian.

PN50

MR GIBIAN: Yes, thank you, Mr Faruqi. Can I just get you to repeat your full name for the record?‑‑‑Sorry?

PN51

Can I just get you to repeat your full name for the record?‑‑‑Omar (Indistinct) Faruqi.

PN52

And your address?‑‑‑(Address supplied.)

PN53

You are a civil engineer?‑‑‑Yes.

PN54

You have made a report for the purposes of these proceedings. Do you have a copy of that with you?‑‑‑Yes.

*** OMAR FARUQI XN MR GIBIAN

PN55

I'm sorry, I can't find the actual date on the report.

PN56

THE COMMISSIONER: I think it's 4 May.

PN57

MR GIBIAN: Sorry, 4 May, the first page, dated 4 May. It commences at page 262 of the court book. You have had an opportunity to review that report, have you, Mr Faruqi?‑‑‑Yes, I have.

PN58

Is it true and correct to the best of your knowledge and recollection and does it represent your opinion?‑‑‑Yes, it does.

PN59

And were you able to make whatever investigations you considered appropriate for the purposes of preparing that report?‑‑‑Yes.

PN60

We seek to tender that report.

PN61

MR FOLLETT: There's no objections, Commissioner.

PN62

THE COMMISSIONER: Yes.

PN63

MR FOLLETT: We just raise one matter. I'm in the Commission's hands on this, but, ordinarily, a witness giving evidence wouldn't be wearing a mask, but I'm in your hands on that matter.

PN64

THE COMMISSIONER: Mr Faruqi, do you wish to keep your mask on?‑‑‑I can take it off.

PN65

I think that resolves the issue, thanks. All right, I will admit the expert report of Mr Faruqi dated 4 May 2022, which includes appendices 1 to 3 and tables, as exhibit 1.

EXHIBIT #1 EXPERT REPORT OF MR FARUQI WITH APPENDICES AND TABLES DATED 04/05/2022

PN66

MR GIBIAN: I will just need to ask Mr Faruqi to comment on a couple of the things in the supplementary statement.

PN67

THE COMMISSIONER: Yes.

*** OMAR FARUQI XN MR GIBIAN

PN68

MR GIBIAN: I think you understand, Mr Faruqi, that there was a further statement of Mr Priem that was provided last evening?‑‑‑Correct.

PN69

Have you had a chance to look at that statement?‑‑‑Yes, I have.

PN70

Do you have a copy of it with you?‑‑‑Yes, I do.

PN71

If I could just ask you to turn to - you'll see that there's a response to your report commencing at paragraph 9 at the bottom of page 2 of the statement?‑‑‑Yes.

PN72

The substance of which goes over the page, and there are four matters identified in paragraph 10 which are identified by way of clarifications to the bases upon which you prepared your report. Can I just ask you to comment on each of those in turn. Firstly, at paragraph 12, there is - sorry, I should say, going back, paragraph 11, there's an assertion made that there is an over estimate of the number of people that would be employed as a result of those four factors that have been identified. The first of those factors is described, commencing in paragraph 12, in which reference is made to the 24-month construction time frame that was assumed in your report, and the assertion is made in the second sentence that completion of construction is scheduled for January 2025, with overall completion, including commissioning, for 17 July 2025, and the time frame means less employees are forecast to be employed. Are you able to comment on whether the content of that paragraph affects the approach you adopted in your report?‑‑‑This paragraph actually agrees with my timeline that I had established, that the construction activities finish in January 25 and, for them to commence, you need six months of design approvals, et cetera, so that leaves you 24 months. That's my assumption and that's what this confirms.

PN73

Are you able to make any comment upon the assumption that there was a longer time frame, if that would result, as is asserted in the final sentence of paragraph 12, in there being less employees over a longer period?‑‑‑If it was longer, then there would be less number of people employed.

PN74

The second matter that was raised is in paragraph 13, where it's observed that, in appendix 3 to your report, there is an assumption that the project would involve 13 designed sections, and then John Holland has assumed a smaller number. Are you able to make any comment upon that?‑‑‑Yes, there's a note that John Holland now expects there to be nine work sections, which is a reduction of four, which means that the work effort is increased by each team by about 40 per cent. So, in order to do that extra work, they would need extra resources as well.

*** OMAR FARUQI XN MR GIBIAN

PN75

So there would be a lesser number of teams?‑‑‑A lesser number of teams, but the team may be larger, and I would expect that to be about 20 per cent.

PN76

Are you able to make any observation - I understand the limited opportunity you have had to look at it - but are you able to make any observation whether you think the number of sections would affect the total workforce?‑‑‑So I did just a quick calc just now. Based on my numbers, the work teams would comprise 741 people. Based on the John Holland nine sections, it would be 513, but to allow for a 20 per cent increase, that would mean 615 FTEs.

PN77

Are there additional employees other than the 615 who would be required?‑‑‑Correct. So, this is only on the six and a-half kilometre construction of the track, not the other works.

PN78

What other works are you referring to there?‑‑‑So the other works would be the depot, the landscaping, traffic control, et cetera.

PN79

The next matter that's raised in paragraph 14 is an assertion, by reference to the first statement, that there's a forecast of 40 per cent of the construction work on the project otherwise within the scope of the classifications would be contracted out - in the agreement would be contracted out. Do you see that?‑‑‑Yes.

PN80

Are you able to make any comment upon that?‑‑‑I can't comment on that. I have just calculated the total number of workforce that is required. How John Holland decides to self-perform or subcontract, I can't comment on that.

PN81

At paragraph 15, there is a reference to what are characterised as white collar roles, being supervision, survey and technical leads, and an assertion is made that you assume those would be within the employee numbers. Do you see that?‑‑‑That is correct. I have assumed that. So, if you take out the surveyors - there's about, I think from memory, 50 or 55 - 50 surveyors that can be taken out of that number. Supervisors, I still think is blue collar. This is not the superintendents or the engineers.

PN82

What type of employees did you have in mind in supervisory roles?‑‑‑So these will all be construction workers at the senior level.

*** OMAR FARUQI XN MR GIBIAN

PN83

Lastly, at paragraph 16, there's an assertion that your report makes other incorrect assumptions about the work and the type of role that is required. There's, perhaps, two examples then provided. The first is there's an assertion that there would be no ballasted track out of the depot and that, in brackets, all tracks will be concrete slabs. Do you see that?‑‑‑Yes.

PN84

Firstly, did you assume there would be a ballasted track in the depot?‑‑‑So I had assumed a ballasted track because that's, in my experience, the fastest and the cheapest, but if it is concrete, then that doesn't make any difference, it just needs extra resources to do the concreting compared to ballast.

PN85

What effect, in relation to the works of the depot, would that have in terms of employee numbers, that is, would it decrease or - - -?‑‑‑So the numbers would go up because concreting requires reinforcement, extra skills, compared to just ballast.

PN86

The second matter is it's said:

PN87

Nor is the depot being expanded as extensively as assumed by Mr Faruqi.

PN88

Do you see that?‑‑‑Yes, okay. Assuming five new train sets, I assumed two lanes, because you don't want more than three trains in a lane, otherwise, if one breaks down, you've got two locked up. That was the assumption that I had made, and that's standard practice, but if the design requires less, then I can't comment on that.

PN89

Just one moment. That's as best we can do with that material on the notice.

PN90

THE COMMISSIONER: All right. Mr Follett?

CROSS-EXAMINATION BY MR FOLLETT [10.25 AM]

PN91

Mr Faruqi, just so I can get an understanding of what exactly you have undertaken in your report, I understand the first step was to review the project documentation that you had been provided?‑‑‑Correct.

PN92

To get an understanding of what the project actually involved?‑‑‑Correct.

PN93

Then you have made a range of assumptions about the design characteristics of the project?‑‑‑Correct.

PN94

And then you have made a range of assumptions about the construction activities for the project?‑‑‑Correct.

*** OMAR FARUQI XXN MR FOLLETT

PN95

Then you have identified, based on your experience and in your opinion, all of the activities required to deliver that project on the basis of those assumptions?‑‑‑Correct.

PN96

Including construction and non-construction activities required?‑‑‑Correct.

PN97

And including on-site and off-site activities required?‑‑‑Correct.

PN98

Then, based upon that assessment, you have provided an estimate of labour of some 800 FTEs, which, as I understand it, is referable to what you describe as 'site work/construction activities'?‑‑‑Correct.

PN99

Do you have your report there, Mr Faruqi?‑‑‑Yes.

PN100

Just on appendix 3, page 283 of the court book, those construction activities that you refer to commence on line 90 as an overarching heading?‑‑‑Correct.

PN101

And they run all the way down to line 188?‑‑‑Yes.

PN102

Because you haven't included commissioning?‑‑‑No, commissioning is outside of that.

PN103

Yes?‑‑‑And testing is outside of that.

PN104

So your estimate of 800 is based on those activities from 90 to 188?‑‑‑Correct.

PN105

In appendix 4, which is page 287 of the court book, that listing then accords with that listing of construction activities in table 1?‑‑‑Yes.

PN106

Sorry, was that 'Yes'?‑‑‑Yes.

PN107

Now, you haven't seen the contract for the design and construction of the project?‑‑‑No, I have not.

PN108

I assume you haven't attended any John Holland meetings?‑‑‑No.

*** OMAR FARUQI XXN MR FOLLETT

PN109

You are experienced in infrastructure project planning?‑‑‑Yes.

PN110

You would know the extraordinary amount of work of the kind that you have conducted that would ordinarily go into tendering for large construction projects of this type?‑‑‑Correct.

PN111

You would expect, wouldn't you, that John Holland, as a tier 1 construction contractor, would have a large team of designers and planners?‑‑‑I would assume so, yes.

PN112

The sort of activity that you have conducted would need to be conducted for the purposes of tendering for a project because, evidently enough, knowing how many employees you need in what classification levels influences the cost of the labour for the project?‑‑‑Correct.

PN113

You don't want to tender for a project at a price which will mean that you don't make a profit?‑‑‑Correct.

PN114

You would accept, wouldn't you, that the persons internal to John Holland have exact actual specific knowledge of how they intend to deliver the project?‑‑‑I would assume so, yes.

PN115

And the best you can do is make guesses, based upon your experience, about how they might go about delivering the project?‑‑‑No, not a guess, this is how I would do it.

PN116

That's how you would do it, all right. So, insofar as John Holland decided to deliver the project in a different way, you couldn't comment upon that, could you?‑‑‑No, I am commenting on how I would do it and what it would require.

PN117

How you would do it. All right. Included within your estimate of how you would do it is the fact that your report is based on a series of assumptions?‑‑‑Yes.

PN118

It is true to say, isn't it, that an expert opinion such as yours, based upon assumptions, is only as good as the accuracy of those assumptions?‑‑‑Correct.

PN119

Indeed, based upon what you have just said earlier, the validity of your opinion as to how you would construct the project for the purposes of these proceedings is only relevant insofar as that accords with the way John Holland decided to construct the project?‑‑‑Sorry, could you say that again?

*** OMAR FARUQI XXN MR FOLLETT

PN120

Yes. You answered a question earlier that your report and your estimate of 800 heads was based upon how you would deliver the project?‑‑‑Correct.

PN121

And that opinion is only as good as the extent to which the way you would deliver the project accords with the way that John Holland would deliver the project?‑‑‑Correct.

PN122

You would accept, wouldn't you, that the assumptions that you have made about design and construction, if they were not accurate, then the product at the end of you estimation process is also not accurate?‑‑‑Correct.

PN123

You accepted, in response to a question from my learned friend, that if there was, in fact, a longer construction time frame, that would have a consequential reduction on the impact of employees required?‑‑‑Correct.

PN124

We can have more people employed for a less period of time - sorry, a longer period of time?‑‑‑Less people?

PN125

Less people a longer period of time?‑‑‑Yes.

PN126

In terms of your evidence about the number of segments and the reduction from 13 to nine, you don't know anything about the way in which John Holland proposes to sequentially perform those works?‑‑‑No.

PN127

You don't know anything about the extent to which the exact ordering and sequencing of those works is to be performed?‑‑‑No.

PN128

And you don't know anything about what economies of scale might be derived from a particular sequencing of works in that fashion?‑‑‑That's correct.

PN129

Table 2 in appendix 4, which is found on 288 of the court book, that's your estimation of the classification of workers required to complete the construction activities?‑‑‑That is correct.

*** OMAR FARUQI XXN MR FOLLETT

PN130

I think in answer to a question from my learned friend about your assumptions around ballasting versus concreting, you expressed a view about the impact on the head count by reference to that change. We can assume that there would be different numbers of employees in different classifications as a result of that change as well, wouldn't there?‑‑‑There would be more concrete and reinforcement-related workers, yes.

PN131

This classification of workers on table 2, that's for all of what you call on-site construction activities, as we went through before?‑‑‑Correct.

PN132

And that's what you need to engage to perform all of that work?‑‑‑Correct.

PN133

You didn't make any assessment, did you, of which of those classifications would be covered by the agreement or not?‑‑‑No.

PN134

You expressed a view earlier about supervisors and you gave a generic description of senior level construction workers. Did you look at any of the classifications in the agreement to identify whether you thought - - -?‑‑‑No, I have not gone into that level of detail. This is a generic classification of worker.

PN135

So you don't know whether the supervisors you had in mind would be covered by the agreement or not?‑‑‑The supervisors that I had in mind would have been construction workers and they would be under the agreement.

PN136

Well, how can you say that when you don't know what the classifications in the agreement are?‑‑‑No, no, my assumption is that those supervisors are construction workers. That's my assumption. I don't know whether, in John Holland, that's the case or not.

PN137

Indeed, your estimate of employee numbers is not an estimate of how many John Holland Queensland employees will be required to be employed under the agreement, is it?‑‑‑No.

PN138

You have made no assessment of which activities, if any, may not be performed by John Holland Queensland employees directly?‑‑‑No.

PN139

Evidently, if John Holland Queensland engaged subcontractors for certain work activities, the head count required for direct John Holland employees would go down?‑‑‑I would assume so.

PN140

Also, if John Holland Queensland proposed to subcontract out some of the particular activities, say, for example, labouring, and performed some of the labouring activities with direct employees, then again the number of employees required would go down?‑‑‑Correct.

*** OMAR FARUQI XXN MR FOLLETT

PN141

It follows, doesn't it, that your estimate of employees is not an actual estimate of how many direct John Holland Queensland employees under the agreement there are likely to be?‑‑‑No, I have not estimated that or claimed that.

PN142

Nothing further.

PN143

THE COMMISSIONER: Mr Massy?

PN144

MR MASSY: No questions, Commissioner.

PN145

THE COMMISSIONER: Okay. Mr Gibian?

PN146

MR GIBIAN: Just a few matters.

RE-EXAMINATION BY MR GIBIAN [10.38 AM]

PN147

Mr Faruqi, you were asked some questions by Mr Follett that were premised upon you having determined that there would be 800 heads involved in the construction work. The figure, I think, that appears at the bottom of table 3 on page 289 of the court book, the final table, refers to FTE?‑‑‑Correct.

PN148

Can you explain how you arrived at the FTE number for each particular class of employee?‑‑‑That is the equivalent of a full-time person working for one year, so that's - there's going to be more than 800 people employed on the job, but if they were converted into a full-time person working for 220 days a year, that's the number you would end up with.

PN149

If we take a labourer role, if the work for the labourer was required for a particular function only for a three‑month period, but - - -?‑‑‑And that is 0.25 FTE.

PN150

That is 0.25 FTE. So, if there is one FTE for the whole year, but that work is only required for a three-month period, how many employees would you need to do that work?‑‑‑Four.

*** OMAR FARUQI RXN MR GIBIAN

PN151

Four. You were then asked a question about the time frame for the project and agreed that, if it was longer, there could be some lesser number of employees engaged over a longer period of time. I don't think Mr Priem is specific about it, but are you able to - and I appreciate this may be difficult - but are you able to indicate whether a three-month or a six-month longer period would have a significant effect on the total numbers, or is that not something you can - - -?‑‑‑Based on this latest advice, it is still a 24-month construction program. So, if it went from 24 to, say, 26, the increase would be marginal, or decrease, sorry, would be marginal.

PN152

Yes, all right. Are you able to say more by way of precision than 'marginal' or - - -?‑‑‑Maybe 10 per cent.

PN153

Lastly, you were asked about supervisors and the assumption that they were construction workers that would be covered by the agreement. Are you able to say by reference to the table how many of that class of employee you were talking about?‑‑‑It's 55.

PN154

That's the FTE figure?‑‑‑Yes.

PN155

Thank you, that's the re-examination.

PN156

THE COMMISSIONER: All right. Thanks, Mr Faruqi, that's the conclusion of your evidence, you are no longer required to be on oath and you are free to stay or go as you prefer?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.41 AM]

PN157

THE COMMISSIONER: All right, that concludes the evidence for the AWU. Are we ready to go straight to your first witness, Mr Follett?

PN158

MR FOLLETT: Yes, Commissioner. The first witness is Andrew Priem.

PN159

THE ASSOCIATE: Can you please state your full name and address for the record.

PN160

MR PRIEM: Andrew Peter Priem, 1000 Ann Street, Fortitude Valley.

<ANDREW PETER PRIEM, AFFIRMED [10.43 AM]

EXAMINATION-IN-CHIEF BY MR FOLLETT [10.43 AM]

PN161

Thank you. Can you just restate your name and business address for the transcript, please?‑‑‑Andrew Peter Priem, 1000 Ann Street, Fortitude Valley.

*** ANDREW PETER PRIEM XN MR FOLLETT

PN162

You are employed as an operations manager or infrastructure manager?‑‑‑Infrastructure manager of Queensland.

PN163

For Queensland of John Holland Group Pty Ltd?‑‑‑Correct.

PN164

How long have you been in that role?‑‑‑A few years now. Must be about six years, from 2016, yes.

PN165

You have prepared two statements for the purposes of these proceedings?‑‑‑Yes, I did.

PN166

Do you have a court book in front of you, Mr Priem?‑‑‑Yes, I do.

PN167

Can you go to page 129. Is that a copy of a statement of yours which has 13 paragraphs, dated 13 April 2022, with one annexure?‑‑‑Yes.

PN168

Have you had an opportunity to review that recently?‑‑‑Yes, I read over it this morning, yes.

PN169

Are you satisfied the contents are true and accurate?‑‑‑Yes.

PN170

Do you adopt it as your evidence in these proceedings?‑‑‑I beg your pardon?

PN171

Do you adopt it as your evidence?‑‑‑Yes, yes, I do.

PN172

I tender that statement.

PN173

THE COMMISSIONER: I will admit the statement. Any objections?

PN174

MR GIBIAN: No.

PN175

THE COMMISSIONER: I will admit the statement of Andrew Priem, dated 13 April 2022, and annexure AP1 as exhibit 2.

EXHIBIT #2 WITNESS STATEMENT OF ANDREW PRIEM WITH ANNEXURE DATED 13/04/2022

*** ANDREW PETER PRIEM XN MR FOLLETT

PN176

MR FOLLETT: Do you also have before you, Mr Priem, a second statement of 17 paragraphs in length and dated 17 May 2022?‑‑‑Yes, I do.

PN177

Can I take you to paragraph 1 of that?‑‑‑Yes.

PN178

It says you are employed by John Holland Group as its infrastructure operations manager; is that correct?‑‑‑Yes, proper title is infrastructure manager, no 'operations'.

PN179

Have you had an opportunity to review that statement recently?‑‑‑Yes, I did.

PN180

Other than the particular change just made to paragraph 1, are there any other changes you wish to make?‑‑‑No.

PN181

Are you satisfied the contents of the statement are true and accurate?‑‑‑Yes.

PN182

Do you adopt it as your evidence in these proceedings?‑‑‑Yes.

PN183

I tender that as well.

PN184

THE COMMISSIONER: I think I have already ruled on this one, haven't I?

PN185

MR GIBIAN: I think so. I did mention - and I am in the Commission's hands as to how you wish to deal with it - but particularly in paragraphs 3 and 6, there is kind of conclusionary language addressed by reference to legal language derived from case law in this area, which - well, firstly, to the extent it is said to contribute a legal opinion is obviously irrelevant and is of such a general nature it is really of no assistance, but I make that observation.

PN186

THE COMMISSIONER: All right. I will note the observation. It becomes a matter of weight. Do you tender the statement?

PN187

MR FOLLETT: Yes.

PN188

THE COMMISSIONER: I will admit the statement of Mr Andrew Priem dated 17 May 2022, 17 paragraphs, as exhibit 3.

*** ANDREW PETER PRIEM XN MR FOLLETT

EXHIBIT #3 WITNESS STATEMENT OF ANDREW PRIEM DATED 17/05/2022

PN189

MR FOLLETT: With the Commission's leave, I have a handful of questions based on what's come out of the mouth of Mr Faruqi.

PN190

THE COMMISSIONER: All right.

PN191

MR FOLLETT: Mr Priem, in your second statement, you identify in paragraph 12 that construction is scheduled for January 2025 completion?‑‑‑Yes.

PN192

Having regard to that conclusion date, how long is the actual construction timeline?

PN193

MR GIBIAN: The difficulty with this is we could have put a specific period to Mr Faruqi if it had been disclosed in the further statement received last night. If there's now sought to be elicited in oral evidence a specific period, then Mr Faruqi has just left and we are denied the opportunity of asking him about some specific period. That's the difficulty. It wasn't done in the statement even received last evening, so I do object to it. It's prejudicial.

PN194

MR FOLLETT: Mr Faruqi spruiked an opinion with no basis or factual foundation in his evidence about paragraph 12, making an assertion that that's consistent with his estimate of 24 months. I'm more than entitled to ask this witness to respond to that particular evidence, as useless as it was.

PN195

THE COMMISSIONER: All right. Look, I think I might maintain the position that I indicated earlier. I might allow the question, but in the event that the union, after the conclusion of the evidence, wants to put a submission to me that it should have an opportunity to put on anything further, I will hear that then.

PN196

MR GIBIAN: May it please.

PN197

MR FOLLETT: If the Commission pleases.

PN198

Do you want me to repeat the question?‑‑‑Yes, please.

*** ANDREW PETER PRIEM XN MR FOLLETT

PN199

By reference to the conclusion of construction scheduled for January 2025, how long is the construction process scheduled for?‑‑‑Approximately 34 months in total, finishing in January.

PN200

Thirty-four months?‑‑‑Yes.

PN201

Insofar as there are preparatory works that need to be done before construction commences, such as design, et cetera, to what extent are you able to say that work's been completed?‑‑‑Yes, the design's ongoing, so we commenced in June last year.

PN202

Is it the case that design needs to be completed before any construction can commence?‑‑‑Substantively for the areas, there's an overlap.

PN203

Does that mean that you can still be ongoing with certain design activities and constructing at the same time?‑‑‑Correct, yes, most of them.

PN204

Thank you.

PN205

THE COMMISSIONER: Mr Gibian.

CROSS-EXAMINATION BY MR GIBIAN [10.50 AM]

PN206

Just with respect to those last questions, you said that design's ongoing. When is the design work going to finish?‑‑‑I think at this stage we're forecasting out to around September.

PN207

September of this year?‑‑‑This year, yes.

PN208

You said the construction phase would be 34 months?‑‑‑Correct.

PN209

Is that what I heard?‑‑‑Yes.

PN210

Isn't there less than 34 months between now and January 2025?‑‑‑As I say, it commenced March, end of March.

PN211

So you've commenced the construction?‑‑‑Construction activities, and goes through until January 25, correct.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN212

When in March did you commence the construction?‑‑‑The date itself, I haven't got a date for that. The guys have started the onsite set-up and, at this stage, I think we'll be out in the paddock actually from the first (indistinct) towards the end of this month. So, the construction starts with the site set-up in that regard and then moves into construction.

PN213

So the construction phase, as you understand it, started with the site set-up some time in March?‑‑‑Yes.

PN214

And there are workers there working on the site set-up, I think setting up fencing and the like?‑‑‑Not constantly, no, they work - yes.

PN215

There have been from March?‑‑‑Yes.

PN216

Whether constantly or not?‑‑‑Yes.

PN217

Can I go back then. I think you corrected that your position title is infrastructure manager; is that right?‑‑‑That's correct.

PN218

That's for Queensland and the Northern Territory?‑‑‑Yes.

PN219

So you have responsibility not just for this project but for all of John Holland's projects in - - -?‑‑‑Correct. There's a second operations manager now, so I have - it's a split portfolio, but the projects within Queensland and NT, yes.

PN220

Split with one other position, you have supervisory responsibility across all of the projects in Queensland and the Northern Territory?‑‑‑Yes.

PN221

How many projects is that at the moment?‑‑‑Three in delivery.

PN222

I'm sorry?‑‑‑Three.

PN223

That you are responsible for?‑‑‑Yes.

PN224

Is there a specific manager for the light rail project?‑‑‑Yes, there's a project director for it.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN225

Who reports up to you?‑‑‑Correct.

PN226

In terms of the tendering processes, what involvement did you have in that for the light rail project?‑‑‑Various over the long duration of it, but operational input into it and review through the actual tender period and more recently to do with the launching of it and commercial settlement to reach financial close.

PN227

Was there other employees who are principally responsible for the tender of the project?‑‑‑There's a team of people.

PN228

Yes. And you had what you described as operational input?‑‑‑Yes, correct.

PN229

You have said in paragraph 9 of your first statement that there's an intention to self-perform some of the works and to outsource others of the works?‑‑‑Correct.

PN230

Despite that, you have decided to make an agreement which gives John Holland the capacity to employ a wide range of employees across the classifications that are set out in the agreement; is that right?‑‑‑As far as the statement goes in that we won't be necessarily employing a person in every role? Is that your question?

PN231

Well, in the first sentence of paragraph 9, you say:

PN232

Although the purported coverage of the agreement gives John Holland Queensland the capacity to employ a wide range of employees, it only intends to self-perform parts of the work.

PN233

Is the reason why you chose to include the wide range of classifications or the wide range of employees, to use your words, to give John Holland flexibility as you go through the project to employ anyone in those roles as and when it becomes necessary?‑‑‑Within reason, yes.

PN234

That is, as the project goes along, there will be decisions made about what works are most effectively or efficiently or cost-effectively done directly or contracted out?‑‑‑Correct.

PN235

That is, you haven't made, at this stage, concrete decisions about each and every part or which particular works will be contracted out and which will be self-performed?‑‑‑So, whilst it will be reassessed, our tender and therefore our contract price is based on an assumption of what we will self-perform and subcontract.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN236

That is based on this 40 per cent figure?‑‑‑Yes.

PN237

Which is a sort of overall assessment of what you think is possible?‑‑‑Yes.

PN238

Based upon, presumably, past experience of other projects?‑‑‑Yes, skills availability and the like, yes.

PN239

You mention skills availability. That is what you're able to contract out and what you're able to perform directly will depend upon the availability of plant and equipment or like to hire?‑‑‑Yes, a number of factors. It gets reassessed at the time, yes.

PN240

The availability of contractors who are considered appropriate and skilled to do the particular work?‑‑‑Correct, yes.

PN241

The availability of direct hire employees to do particular work?‑‑‑Correct.

PN242

Will you also engage labour hire?‑‑‑For top up, we will always consider it. It's certainly not our preference. As a rule, we try and avoid it, but it is generally a necessary evil as far as peaks and troughs goes, so to balance out the peaks if we don't have long-term employment, so, yes, it is something that we utilise, yes.

PN243

Is there a proportion of that that - - -?‑‑‑We will try to keep it - our commitment - not commitment - our original estimate was based on approximately 5 per cent and we've said no more than sort of 6 per cent, but our preference is to minimise that.

PN244

So your assessment was 5 or 6 per cent labour hire?‑‑‑Yes, correct.

PN245

In terms of the 40 per cent outsourcing, that was a global figure, not an assessment of the particular works which would be outsourced or not outsourced?‑‑‑It's based on the scopes that we would subcontract, we intend to subcontract, versus the scopes that we self-perform.

PN246

You don't have arrangements to outsource the specific works, but you expect you would look to outsource if that proved to be the viable alternative at the time?‑‑‑Yes, essentially. As I say, the tender is based on our contract prices, so it's a change if we need to go away from that, and it's very much the plan to do that, to deliver it in that way.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN247

That is you may turn out to contract out particular work or not, depending upon the way in which the contract plays out?‑‑‑Yes, the timing and the market, within the market and whatnot, yes, but there's certain works that we would never self-perform, but, yes.

PN248

In terms of the works that you would never self-perform, that's just lack of capacity or lack of equipment?‑‑‑Yes, it's the specialist. Asphalting is an example where we would never contemplate self-performing.

PN249

In terms of the way in which you contract out, if you take some excavation work, does John Holland have its own equipment in that respect or does it hire in equipment?‑‑‑We hire in equipment. We do have some of our own, but limited.

PN250

In that respect, you could hire with workers or self-employ?‑‑‑Sorry, I don't understand that.

PN251

I think it's called wet or dry hire?‑‑‑Yes.

PN252

You could do either of those options?‑‑‑Yes, correct.

PN253

And you would make an assessment when contracting that work at the particular time as to what's the best to do?‑‑‑Yes.

PN254

That is, you may wet hire or you may dry hire?‑‑‑Correct.

PN255

You annex two documents then to your first statement at AP1, pages 136 and 137. I have printed out a slightly larger one so I could actually read it. Can you read it, do you think?‑‑‑I've got my glasses, so, yes, I can give it a crack, yes.

PN256

Firstly, in relation to these documents, did you prepare these documents?‑‑‑Largely, yes.

PN257

When you say 'largely', did you actually prepare the physical - sorry, the documents?‑‑‑Well, I actually created the Excel document that did that, yes.

PN258

Sorry?‑‑‑I created the Excel document that did that, yes. The information is fed from our tender and it was done in consultation with others.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN259

Sorry, which page are you referring to in that respect?‑‑‑It's the same spreadsheet, the data on - - -

PN260

Are you referring to the page on 136 - 137, I should say?‑‑‑136 and 137, the spreadsheet that that comes out of I prepared.

PN261

There's a separate spreadsheet that this came out of?‑‑‑It is a spreadsheet, yes.

PN262

When you say 'came out of', this is a separate document, is it, to the spreadsheet that you prepared?‑‑‑No, this is a print of the spreadsheet.

PN263

A print of the spreadsheet that you prepared?‑‑‑Yes.

PN264

How is the document at 136 then derived?‑‑‑So, in principle, the spreadsheet was derived from the dump of our tender.

PN265

No, no, sorry, the page at 136?‑‑‑Well, it's a graph of the data that's in the spreadsheet. I'm not quite sure - - -

PN266

And did you prepare that document as well?‑‑‑Yes.

PN267

Just at the bottom of page 136 you'll see that there's a notation 'file name'. Do you see that?‑‑‑Yes.

PN268

It's GCLR3 labour and plant hours by activity code?‑‑‑Yes.

PN269

FWC submission file. Do you see that?‑‑‑Yes.

PN270

I take it then this is a document prepared for these Commission proceedings?‑‑‑Yes, correct.

PN271

When did you prepare the document?‑‑‑This, I don't know the exact date offhand, but - - -

PN272

At the time you prepared - the statement's dated 13 April, so it was around that time, was it?‑‑‑No, it was prior to that. I think it was post the challenge put in.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN273

The 'challenge put in', are you referring to the AWU's objection?‑‑‑Yes, correct, yes.

PN274

Which I think was filed on 25 March. There might have been some preparation period, but some time between 25 March and 13 April?‑‑‑Yes.

PN275

And for the purposes of putting it in your statement for the purposes of this proceeding?‑‑‑Yes.

PN276

If you go to 136, you will see at the top of the page the heading is 'Forecast FTE dashboards'. Do you see that?‑‑‑Yes.

PN277

The first box at the top left-hand corner on the page refers to FTEs by various work package types. I think it starts with drainage and goes down?‑‑‑Yes.

PN278

Can you see that?‑‑‑Yes.

PN279

Then the FTEs are then done also in the other boxes by discipline, role title and classification?‑‑‑Correct.

PN280

In relation to the first box then, the FTEs by work package, that's referring to a certain - well, to certain types of works within the construction project?‑‑‑Yes, essentially, yes.

PN281

The construction phase, I think you have now said, started in March and is proposed to go to January 2025. So, where we read, for example, 'stations', which is one of the work packages?‑‑‑Yes.

PN282

It says 15 FTEs. Is that 15 FTEs employed for the whole period between March 2022 and January 2025 or - - -?‑‑‑No, there's various durations for different scopes of works.

PN283

All right. For the stations, how long is the duration of that work?‑‑‑I don't know offhand. It's not - there's multiple stations and they're not done necessarily consecutively. So, there's a couple of thousand line program that has all those dates in it, yes.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN284

How long in what you say is now a 34-month period is the work package for the stations being undertaken?‑‑‑I don't know offhand. As I say, there's lines of data in that, so the estimate is based on - which is the source of this information - the program that we put together and those dates are in the estimate. So, this is a summation of all of that. So, based on the durations, the hours and the durations.

PN285

With the stations, taking you to the stations work package, that won't obviously be done for the whole period, it will be done for a limited amount and you don't know, you can't tell us how long?‑‑‑No, I just don't know. It's in the program.

PN286

But say it's six months, just assuming it's six months in that period work is being done in the work package called stations, do we understand from the box at the top left-hand corner of page 136 in the court book that 15 FTE will work for six months?‑‑‑Yes, in the example given, yes, that's - so the FTEs are driven by the duration of the work and the hours estimated to do the work.

PN287

All right. For the stations, you've started with the period of the work, which is six months, and then - - -?‑‑‑The hours, yes.

PN288

The hours that were required in that six-month period?‑‑‑Yes.

PN289

And then how do you derive the FTE from that?‑‑‑Simply there's a total number of hours, there's a duration and there's hours of work per week that drives an average FTE count.

PN290

So you've got a total number of hours of work that's required?‑‑‑Yes.

PN291

Do you then divide that by the whole construction period?‑‑‑By the duration for that particular - - -

PN292

By a one-year period or by the duration of the - - -?‑‑‑The duration for the particular work scope that they sit within.

PN293

Explain that to me again. So, you get a total number of hours. Say you've got 3800 hours of labour or work on the stations, how do you then convert that into FTE, or how did you in this project?‑‑‑There's a duration for that works, which is what again our estimate is based on, the program, and it's a simple mathematical calculation from an average perspective, which is total hours by the duration by the hours of work in the week.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN294

And limited to the particular period that you expect those works to be ongoing. Is that the - - -?‑‑‑Yes, for all the - yes, correct, and this is just a summation of that. So, there'd be multiple areas that that would be there and that's the average across that - across the project.

PN295

Sorry?‑‑‑There's multiple - so, in that case, yes, that's why it's called the dashboard; it's the summation of that. You know, the stations, there's multiple stations, as I said, there's different durations for it and hours for it. Same process for that.

PN296

So the average number required across the project would be 15 FTE?‑‑‑I'm not across the project for that particular work.

PN297

All right?‑‑‑They're averages because you - as you can see from the numbers and all of it, it is a mathematical calculation. You can't have a point of someone, obviously, but it drives the indication of where that sits, yes.

PN298

Firstly, the work package then will have a total duration?‑‑‑Yes.

PN299

You can't say, but we've hypothesised for stations for six months?‑‑‑Yes.

PN300

Within that duration, there will also be periods of higher or lower intensity of work?‑‑‑Can be.

PN301

It may be that in three months of that period, you need 40 people working on the stations and in the other three months, they're tidying up or finishing works or the like and you only need 10. That's - - -?‑‑‑Yes, in principle, yes.

PN302

Yes, all right. I might have got the maths wrong, but you get 15 averaged over the total period that that work is ongoing?‑‑‑Yes.

PN303

I understand. So in that example, assuming those people were directly employed by John Holland which is what you're saying here?‑‑‑Yes.

PN304

The total number of employees would not be 15 but you'd have to at one point in time have had 40?‑‑‑Yes, for the case of your argument, yes.

PN305

Yes?‑‑‑That's - yes.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN306

I understand. All right. Can you go over then to page 137 and I'm again using - so the work packages are then along the top of that in the grey shaded boxes across the top and the role titles are down the left‑hand side, see that? So so far as just using the example of stations again are concerned - sorry, it's the fifth last one going down, do you see that?‑‑‑So the fifth last one, was it? Yes.

PN307

Yes?‑‑‑Got it.

PN308

And so we understand that the FTE numbers are then in the column that appears under the heading:

PN309

Stations.

PN310

?‑‑‑Yes. Correct.

PN311

So the first is that there's reference to a concrete gang which has .8 of one FTE?‑‑‑Yes.

PN312

All right. So in terms of that .8 figure, I assume we're not saying that there's' .8 of a - you're going to employ someone part‑time on a .8 basis for 34 months, correct?‑‑‑Yes. No, no.

PN313

No. You're going to employ presumably a number of people for a much smaller part of the total project length?‑‑‑Correct.

PN314

So is the .8 the work spread over the 34 - the total period of the ‑ ‑ ‑?‑‑‑No, not as we explained it's for the particular tasks that's a ‑ ‑ ‑

PN315

So the .8 is over the total period of the station's work package?‑‑‑Yes, correct.

PN316

But again, you're not employing someone part‑time for .8 for that period either?‑‑‑No.

PN317

You'd be employing, presumably, a number of people for only a segment of that work project?‑‑‑Correct. Yes, the timing - they may work on different areas obviously but, yes.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN318

Yes?‑‑‑Yes.

PN319

So that might be, again, the maths is probably going to defeat me but, you know, five people for a smaller part of a project?‑‑‑A quarter of it, yes, yes. For the base of the argument, yes.

PN320

Of the work package. I understand. All right. Then can I go back to your statement at paragraph 13?‑‑‑Yes.

PN321

You'll see there, it's the bottom of page 131 of the court book, you'll see that you say there in the first sentence that John Holland Queensland has determined that it expects to directly employ approximately 366 employees over the life of a project subject to timing and finalisation agreement?‑‑‑Yes, I do.

PN322

I think the number in the column is actually 365, I'm leaving that to one side?‑‑‑365, yes.

PN323

Also the number is - the 365 is FTEs derived in the manner that we've just discussed, correct?‑‑‑Yes, correct. Yes, yes, yes.

PN324

And so the number of actual employees will, because of variations in work fluctuations, be quite different to that?‑‑‑I mean they're quite different but, yes, it will be different and it won't be exactly 366.

PN325

That is an example we - that we just discussed, the .8 concrete gang for the stations that might actually be five people not .8 people?‑‑‑Yes. Yes, for the case of your argument, yes. Yes, yes.

PN326

I understand. And that applies to the other classifications too, they're various periods and they'll be various ‑ ‑ ‑?‑‑‑Yes, yes.

PN327

All right. So sitting here now just taking that example, can you tell us how many concrete gang CW2 workers will be employed on the station works?‑‑‑As we've got what we forecast as far as that goes, I can't tell you what the actual will be because it will - for the reasons you just described, what do you mean?

PN328

Yes. All right. The point - if you go back to page 137?‑‑‑Yes. Yes.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN329

I asked you about the stations column or the fifth to last column?‑‑‑Yes. Correct. Yes, yes, and that has the .8 in it, yes.

PN330

The .8 for concrete gang?‑‑‑Yes.

PN331

Can you tell me how many actual workers will be that .8 doing the concrete gang work for the stations that represent that .8 FTE?‑‑‑So at this point in time as we say, the forecast for that so if you have a look at the LE column sitting at around two so there'll be a crew that will go through it but in the - to your question, we'd be looking to employ two concrete gang personnel workforce.

PN332

And there you're referring - you turned up 136, correct?‑‑‑Yes, 137 on mine.

PN333

Sorry, where are you?‑‑‑137 where you said.

PN334

Sorry, I think you were just looking at 136 to answer that question, is that right?‑‑‑No. No, I was looking at 137.

PN335

Sorry, 136?‑‑‑No, 137.

PN336

Yes. Sorry, 137 sorry, in the total FTE column?‑‑‑Yes.

PN337

Yes, all right?‑‑‑Yes.

PN338

Again that's two FTE, that's not two people, correct?‑‑‑Well, yes, notionally that is obviously the sort of numbers we have to give that assessment, yes.

PN339

Yes. What I was specifically asking you was about the .8 that are employed to do the concrete gang work on the stations?‑‑‑Yes.

PN340

Can you tell us now how many actual people will be employed to do the concrete ‑ ‑ ‑?‑‑‑No.

PN341

That is you don't know?‑‑‑No, it depends, as I say, on what we end up employing. This is the forecast and the program, this is the same as all of it, is a - you know, a tendered position so we know the hours of - to do the work and of course that actual number will depend when we build up the crew and the skills and the people there but they are the roles that we need to do that work.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN342

That's the total number of hours spread over the total periods of work for the station's work, correct?‑‑‑Yes, yes.

PN343

Yes. And you don't know - you can't tell me now how long the concrete gang will be needed within the - I mentioned the nominal six months - I know that wasn't what you were saying that you can't tell us the precise period but assuming that there was a six months total works for the station work package, you can't tell us now how much of that time there will need the concrete gang doing that work, correct?‑‑‑Yes. Not offhand. Yes.

PN344

No?‑‑‑If I had the program, I could pull it up but - yes.

PN345

And you don't know how many employees would be needed for that period doing that concrete gang work on the station's work other than that it's .8 FTE across the six month period that I've nominally specified?‑‑‑I mean, it's - yes. Which then needs to be - these things aren't done in isolation. They need to be looked at with the program, right, because of again, as we said before, we employ people and then you keep them busy so, you don't employ and then let go.

PN346

Now, just in terms of the second statement that you made yesterday or was prepared at least yesterday afternoon?‑‑‑Yes.

PN347

When were you asked to make a second statement?‑‑‑It was last week. I think we - last Friday, Thursday or Friday I think we caught up, something like that.

PN348

All right. And what was the process of it being prepared?‑‑‑We caught up to have a chat about the submission that had been put in and if I'd had a chance to have a look at it which I had and had a look at the report, in particular and provide some feedback around my thoughts on that.

PN349

And who prepared the text of it? That is, did you write it out or did someone else?‑‑‑A combination. Yes, so I couldn't say exactly the bits of it but we had the conversation and given my time I asked that a draft of that be put together which I then received and added and changed and whatnot accordingly and it's what you see presented.

PN350

What did you add or change?‑‑‑I don't know the words but there was various bits and pieces so obviously as I speak I'm used to this sort of process with our - well, internal legal team at the time usually for these sort of things but - yes, majority of it are my words. Did I type the majority of it? No.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN351

That is the majority of it was not typed by you, you say you made certain - did you make changes to the physical - the electronic document itself?‑‑‑I made - yes, yes, yes, on my computer type into it, yes. Yes.

PN352

And you're not able to say now or to isolate which ones - which parts you changed or didn't change?‑‑‑No. No, it was various bits throughout.

PN353

Do any stick in your mind that you changed?‑‑‑Not - yes, not specific words. It was - there was a lot of bits and pieces that I changed around because obviously there's - the interpretation was not necessarily as I explained. What's one of the examples? Particularly around when we're - the optimised program so there was areas talking about how we'd come up with it so I did a bit of redrafting on that.

PN354

Sorry, which paragraph are you referring to?‑‑‑4, 5, things - edits, you know, really to probably every paragraph to be honest. Yes. Yes. No, there would have been edits to every one.

PN355

Can I just ask you about what you say paragraph 5?‑‑‑Yes.

PN356

You refer there to the optimised program and you say:

PN357

You estimated the resource for the completion of the works, a basic program was best achieved in terms of time, cost quality and safety outcomes by way of a dedicated role with specialist skills and experience.

PN358

Do you see that?‑‑‑Yes. Yes, I do.

PN359

Can I ask you, you - I just want to ask you what you mean by that. So one of the classes of employees are called graders, I take it what you meant by that is you want to employ someone who has specific skills in grading a load surface in preparation for laying of asphalt presumably?‑‑‑Yes, the point of the task is, yes.

PN360

All right. I understand. Then can I ask you about what you've said in response to Mr Faruqi's report? Paragraph 12 you refer to the time frame of the project and you say that:

PN361

Completion of the construction is scheduled for January 2025.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN362

And I think you've explained the commencement?‑‑‑Yes.

PN363

I just - is that a publically available time lines policed by the Queensland Government seems to suggest that testing and commissioning would be occurring in 2024, has that now changed?‑‑‑No, I'm not particularly familiar with what you're saying with the - where you're referring to but, no, that would still be correct. Similar to the design and the activities can overlap.

PN364

So there'd be testing and commissioning ongoing when - or commencing at least when construction's still ongoing?‑‑‑Construction. Yes, correct. Yes.

PN365

Secondly, you refer to white collar roles, what you describe as white collar roles at paragraph 15. What were the supervisors you're referring to there?‑‑‑In the table in the report it called up a number of roles, staff, supervisors, one of which would be a staff role. They're not employed under an Enterprise Agreement.

PN366

Well, what did you understand the roles that Mr Faruqi was referring to in his report involved?‑‑‑Being the supervisor.

PN367

Yes?‑‑‑Yes. I don't understand your question, sorry. Is that supervision or ‑ ‑ ‑

PN368

What did you understand that work to involve?‑‑‑Being a supervisor on our jobs. That's something we employed a lot of.

PN369

Did you understand - yes, do you understand - do you have construction workers who are supervisors on site?‑‑‑No.

PN370

You don't?‑‑‑No. Our supervisors are all staff.

PN371

So what are the - in what way do you differentiate someone who's a supervisor on site from someone who's a staff supervisor?‑‑‑Well, our supervisors are all staff and our workforce, our blue collar are employed under an Enterprise Agreement. So we have leading hands, we don't have supervisors.

PN372

Yes. What do you understand the staff - I'm sorry?‑‑‑We have leading hands, not supervisors.

PN373

So you do have persons on site who are, as you described it, blue collar, with - supervisor with responsibilities but ‑ ‑ ‑?‑‑‑No, no. That's very ‑ ‑ ‑

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN374

If you just let me finish my question?‑‑‑Sorry.

PN375

But you refer to them as leading hands, is that right?‑‑‑I would not refer to a leading as a supervisor. That's what ‑ ‑ ‑

PN376

What is the role - what is the responsibility of the leading hand distinguishable from other construction workers?‑‑‑To assist the supervisor or the crew in their activities, daily activities, yes.

PN377

All right. So it's a - so far as a matter of nomenclature is concerned you don't regard that as supervising but they have a leadership role within the team that they're working for?‑‑‑Yes, sure. Yes.

PN378

Finally at paragraph 16 you refer to a couple of other matters at the top of the final page. You say there'll be no ballast to track out of the depot, that it all would be concreted?‑‑‑Yes, correct.

PN379

All right. So that means the concrete has to be laid there rather than done by way of ballast?‑‑‑Yes, correct.

PN380

All right. And look, Mr Faruqi's view was that that would be more labour intensive rather than ballasting, is that - do you agree with that or disagree with that?‑‑‑No, neither. Yes, I haven't done the comparison but I would - yes, I would have said that would be relatively comparative.

PN381

What, that is you don't think that would have made any difference. That is, the assumption that it was ballasted rather than ‑ ‑ ‑?‑‑‑It's different skill sets obviously and whatnot but, yes.

PN382

All right. But in terms of total workforce, much the same, you would say?‑‑‑Yes, probably. Yes.

PN383

All right. And you say that the second thing you say there is the depot - nor is the depot being expanded as extensively as Mr Faruqi - as assumed by Mr Faruqi?‑‑‑Correct.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN384

What was the difference between Mr Faruqi's assumption about the depot and what you say is the intention?‑‑‑There's a number of areas throughout the depot that it talks about the lanes, I think there was an (indistinct) separator, there was - essentially we're building a roof, a shed extension and it doesn't include those things. What page is the table in his report?

PN385

I'm sorry, you're after Mr Faruqi's report?‑‑‑Yes.

PN386

It commences - the report itself commences at pages 263 in the court book?‑‑‑Yes. So 289 (indistinct) so it talks about the pit lane, the flat lane, oil separator.

PN387

I'm sorry, you're going to have to go a little bit more slowly?‑‑‑Sorry. Page 289.

PN388

Yes?‑‑‑Under the depot heading.

PN389

Yes?‑‑‑You've got:

PN390

Pit lane, rail lane - flat lane, oil separator, steel works inside pit -

PN391

- a number of those activities are not - that is not part of the scope.

PN392

All right. So the four things that are not part of the scope are pit lane, flat lane, oil separator and steel works.

PN393

All right. I understand. I'll just have a moment.

PN394

That's the cross‑examination.

PN395

THE WITNESS: Actually - sorry, there's actually a couple of others but anyway, the tracking store, the gantry. None of those things - so it's from pit lane down, none of those things are in the depot.

PN396

MR GIBIAN: I'm sorry, (indistinct) to go back again?‑‑‑Yes, sorry. 289 under depot from pit lane to electrical and overhead wire and OHW.

PN397

So you wanted to add to the four matters that I articulated earlier?‑‑‑Yes, correct. Yes.

*** ANDREW PETER PRIEM XXN MR GIBIAN

PN398

Track install, gantry install and power, is that right?‑‑‑Yes.

PN399

In terms of the track install ‑ ‑ ‑?‑‑‑Track install, gantry install, yes, electrical. Yes.

PN400

Yes. Sorry, including electrical as well?‑‑‑Yes.

PN401

Yes?‑‑‑Electrical and overhead, yes.

PN402

So from pit lane down to the heading:

PN403

Statement yards.

PN404

?‑‑‑Correct.

PN405

All right. In terms of track install, I thought that the evidence was that there was going to be track install at the depot, you just were distinguishing it being ballasted rather than concrete - concrete rather than ballasted, I should say?‑‑‑In the way this is - yes, correct. So - yes, we don't distinguish between the two as far as the scope I was referring to but in here the report calls it the depot and the statement yard and the track is the statement yard.

PN406

All right. I understand.

PN407

THE COMMISSIONER: Thanks, Mr Follett.

RE-EXAMINATION BY MR FOLLETT [11.26 AM]

PN408

MR FOLLETT: Thank you, Commissioner.

PN409

You gave some evidence, Mr Priem, about some construction activities having commenced in March, are they direct employees or subcontractors?‑‑‑No. Pending the outcome of this we obviously haven't employed anyone directly to date.

PN410

So they're all subcontractors, are they?‑‑‑Yes.

*** ANDREW PETER PRIEM RXN MR FOLLETT

PN411

You gave some evidence about certain types of work that you would never self‑perform and you gave one and you gave one example of asphalting?‑‑‑Yes.

PN412

Are there any other activities required for the construction of this project that you would never self‑perform?‑‑‑A number of them, yes. Yes.

PN413

Such as?‑‑‑Directional drilling would be an example. A number of landscaping type of activities, things that have got specialist that people - that we wouldn't look to procure or be worth our while to get.

PN414

All right. You were asked a series of questions about FTEs and percentages or decimal points rather in your table?‑‑‑Yes.

PN415

And on a number of occasions you said that employees within a FTE for a particular classification may work on different areas, I think you also said you keep them busy and you don't employ them and let go?‑‑‑Correct. Yes.

PN416

What impact does that have when drawing a comparison between FTEs and actual headcount?‑‑‑As far as possible we would seek to reduce the total headcount probably but on average it's the same number of hours obviously as some level of the work has to be done and it would be relatively consistent but if anything possibly slightly lower as far as an FTE goes.

PN417

So it was - you answered in response to a question about 365 FTE but the number of people won't be exactly 365?‑‑‑Correct, yes.

PN418

What can you say about your best estimate of how 365 FTE will translate into headcount?‑‑‑At the moment we'd be suggesting it's probably under that, we can only circuit 300 so we've got to set up our cribbing and everything but direct employees would be sitting in that hopefully around maybe the 300 to 360 range.

PN419

And how do you have less headcount for more FTEs, is that based on the duration?‑‑‑Purely a math - yes, it's your mathematical calculation there but as we do spread them it's the number of people obviously that we're employing and so for over a long period of time doing the work then it's a lower number.

PN420

So insofar as there you say, construction activities or concreting activities identified under multiple columns.

PN421

MR GIBIAN: Don't lead. Well, the question should not be leading.

*** ANDREW PETER PRIEM RXN MR FOLLETT

PN422

MR FOLLETT: Well, I didn't ask a question - answered - asked the question yet.

PN423

MR GIBIAN: Well, as long as it isn't a leading question. Thanks.

PN424

MR FOLLETT: Insofar as - do you have page 137 of your - of the court book there which is your forecast roles and delivery summary?‑‑‑137. Yes, got it.

PN425

Now, if you're just looking at say the second line down:

PN426

Concrete gang -

PN427

- and you go to - I think it's concrete and it has .9 under it?‑‑‑Yes, yes. Concrete, yes, .9. yes.

PN428

What's that? Is that .9 over the life of the project or some different period?‑‑‑A different period.

PN429

And then:

PN430

.2 overhead wiring.

PN431

Is that for the life of the project or something different?‑‑‑No. They're all - yes, as explained before relative to the activities, the task in the program.

PN432

And is that how headcounts can be lower than the FTEs?‑‑‑Very much so, yes. So when we actually employ and the crews are made up, you know for efficiency reasons, you want to, as I say, keep people as far as you can because of experience and everything that goes with it so the programming is all around ensuring that you don't have down time and those sort of things so our crews ideally - it doesn't always work, but you work across multiple and that extended duration for the same amount of works means that you don't need as many people to burn the hours.

PN433

And you said that that document, the spreadsheet was based off a couple of thousand line program?‑‑‑Correct. Yes, correct.

*** ANDREW PETER PRIEM RXN MR FOLLETT

PN434

What's that?‑‑‑The contract program or the tender program at the time, now the contract program, yes.

PN435

So someone's done thousands of lines of program activities?‑‑‑Yes.

PN436

MR GIBIAN: I object.

PN437

THE WITNESS: It's not uncommon. Yes.

PN438

MR GIBIAN: Well, I ‑ ‑ ‑

PN439

THE COMMISSIONER: Well, the question's been answered.

PN440

MR GIBIAN: Yes, the question's been answered. We'll move on.

PN441

MR FOLLETT: I have nothing further.

PN442

THE COMMISSIONER: All right. Well, thank you. That's the conclusion of your evidence.

PN443

There's no one else is there? No.

PN444

That's the conclusion of your evidence, you're no longer required to be on oath and you're free to stay or go?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.32 AM]

PN445

THE COMMISSIONER: I think we might have an adjournment for 10 minutes.

PN446

MR GIBIAN: Of course.

SHORT ADJOURNMENT [11.33 AM]

RESUMED [11.52 AM]

PN447

MR GIBIAN: Sorry, just before we go to Mr Smith, I just wanted to raise a matter.

*** ANDREW PETER PRIEM RXN MR FOLLETT

PN448

THE COMMISSIONER: Yes.

PN449

MR GIBIAN: I was going to seek leave to ask a few more questions of Mr Priem. I think he's still here. Perhaps if I could just ask him to go outside for a moment while I explain my - if we're able to do that.

PN450

THE COMMISSIONER: Yes, sure.

PN451

MR GIBIAN: Thank you, Mr Priem.

PN452

I just have to be frank. We don't understand the evidence that he gave in re‑examination about the total number of employees being less. I'm sorry. Maybe Mr Smith (indistinct).

PN453

THE COMMISSIONER: Yes, Mr Smith, I might ask you to step out. Thanks.

PN454

MR GIBIAN: We don't understand the evidence, to be frank, at all, as to what was said in re‑examination about the total employees conceivably being less than the FTE number or the manner in which the FTE number he says, was calculated in a way that would permit that outcome given the practicalities of it and it seems to depart from his evidence in his witness statements in a substantial way that we weren't on notice that he was going to give evidence of that nature and I did just want to ask him a few more questions of that and seek - on that subject and would seek to leave to do so.

PN455

THE COMMISSIONER: All right. Any objection? No?

PN456

MR FOLLETT: Well, it's somewhat unorthodox to ask to re‑cross‑examination after - re‑cross‑examine after re‑examination but if the position is that there is some concern about what that evidence stands for then I think probably you're going to be assisted by hearing from it so ‑ ‑ ‑

PN457

THE COMMISSIONER: That's my inclination too. Yes.

PN458

All right. Well, I'll allow the witness to be recalled. We'll have to get him to take another oath.

PN459

MR GIBIAN: Thank you.

PN460

THE COMMISSIONER: Thanks, Mr Priem. We've agreed to get you back just to clear up a few things. I'm going to have to get my associate to ask you to take another oath or affirmation. Thanks.

PN461

MR PRIEM: No worries at all.

PN462

THE ASSOCIATE: Please state your full name and address.

PN463

MR PRIEM: Andrew Peter Priem, (address supplied).

PN464

THE ASSOCIATE: Thank you.

<ANDREW PETER PRIEM, RECALLED [11.55 AM]

FURTHER CROSS-EXAMINATION BY MR GIBIAN [11.55 AM]

PN465

THE COMMISSIONER: Mr Gibian?

PN466

MR GIBIAN: Yes.

PN467

Thank you, Mr Priem. Sorry, do you still have page 137 of the spreadsheet at page 137, the second page of AP1?‑‑‑Yes. Yes.

PN468

I think you said - and in answer to both my questions and the questions that my learned friend asked in re‑examination that this document or the content of it was derived from material produced for tender purposes, is that right?‑‑‑Yes. Correct.

PN469

And that it was produced for tender purposes for the purpose of costing, essentially, that is working out what the labour costs are likely to be on the project?‑‑‑Yes, correct.

PN470

And for that person - for that purpose, where there's a total FTE column, the total FTE column referrable to each of the role titles, that was the figure that allowed you to cost by reference to whatever the wages were estimated to be, I suppose for that role to cost the labour requirements?‑‑‑Not the FTEs, no, the hours are what drives the estimate. We then have to calculate various things like that just for site setup and those sort of things.

*** ANDREW PETER PRIEM FXXN MR GIBIAN

PN471

All right. That is you have a basic number of hours that are calculated as needed for each role and it's from that that you work out the cost?‑‑‑Yes. Well, that drives the cost, yes.

PN472

Yes?‑‑‑Yes, for the way of the cost but it also drives, as I say, the hours, they also have to be used to price things that are FTE related, yes.

PN473

All right. All right. Sorry, what are the things that are FTE related?‑‑‑The number of crib rooms you need on site, the number of inductions you're going to have, that sort of stuff, yes.

PN474

All right. So you also have to derive an FTE figure for the - in addition to the hours basis for the purposes of doing the costing exercise for the tender process?‑‑‑Well, yes, from the hours, yes. Correct, yes.

PN475

All right. And you assume for those costing purposes that each FTE is the same, that is the costing element is a multiplier of the FTE?‑‑‑No, it's the hours - sorry. The hours derives the cost for the labour.

PN476

Yes. Sorry, I'll go back a step. I think you said the hours derives the cost for the wages, is that right?‑‑‑Yes. Yes.

PN477

You said there were other costs that were distinct which required a FTE calculation?‑‑‑Yes. Correct.

PN478

For the purpose of those costs, I take it there is a cost that you've assessed per FTE essentially for those other costs?‑‑‑Yes, it is person to person from a crib room perspective or whatever, yes.

PN479

And for the purpose of those costs, leaving the wages to one side which you said you use the hours for, I take it one FTE is the same as another FTE, that is, you just do a multiplier of the cost by FTE numbers, is that right, for those associated matters?‑‑‑Correct. Yes, I think what you're trying to say is - yes, that's right, depending on what it is you're pricing, yes.

PN480

Yes. All right. So looking at page 137, you've done that calculation based on two concrete float hands, two concrete gang FTE, 10 heavy plant spotter, is that right?‑‑‑Mm hmm.

*** ANDREW PETER PRIEM FXXN MR GIBIAN

PN481

All right. And that's a standard amount through the whole project?‑‑‑Sorry, what do you mean by 'Standard amount?'

PN482

That's a standard FTE, the cost is calculated throughout the whole project, is that right?‑‑‑I'm not quite sure I understand your question, sorry.

PN483

All right. That is you've costed these ancillary costs that you're talking about on a per FTE basis?‑‑‑Yes.

PN484

Is that right?‑‑‑Yes, there's different things because it depends on what you're actually costing but, yes, that could be peak average.

PN485

All right?‑‑‑Yes.

PN486

So you multiplied and those were the costs throughout the whole project, is that right?‑‑‑The costs for the project using the estimate, yes. Of course, yes.

PN487

Yes. All right. And so then you multiply the costs per FTE across the whole project to work out the tender cost, is that right?‑‑‑I'm sorry, I think it's being oversimplified so I'm struggling to sort of answer. It's not a straight answer in that, there's all different ways that that was used for it but the basis of all of that is your - obviously your program and your man hours estimate and from there you derive the other things, so depending on what it is you're pricing, you use that information based on a combination of, say of time and the hours.

PN488

I understand that the way that that is customarily done to produce a standard FTE cost is to work out a total - you take a total number of man hours, so say you need 10 workers to do work for 10 days, that's 10 man days, I've called them man days, maybe person days?‑‑‑Yes. Yes, yes.

PN489

Correct?‑‑‑Yes.

PN490

And then you would spread that out over a 12‑month period which would then be a .5 FTE or something like - something in that range. So you've got 100?‑‑‑No. No, we don't price it as FTEs in that regard. As an example a crib room seats 20 people so depending on how many people we've evaluated need to be in the area then that'll derive the number of crib rooms that we would price, the number of inductions that we need to undertake.

*** ANDREW PETER PRIEM FXXN MR GIBIAN

PN491

All right. And would you use the FTE for that purpose, do you?‑‑‑No. No, it's not the FTEs, it's the equivalent of but - because it's obviously when you say, 'People', so you know, FTE is not specifically the term that's used but it's the equivalent of but it's calculated - it depends on what we're trying to calculate to how you use the data, it's derived from the man hours and the durations from, you know, so the program and the estimate is what drives all of those sort of things to assess how many you need of each including what we estimate to be the total number of people on the project or the bits that go with it, you know.

PN492

Now, as I say, my understanding was that the customary way for this - for the FTEs to be produced was to work out a total number of man hours, divide that by the 12‑month period, the total work hours over a 12‑month period?‑‑‑Yes. No, it's got nothing to do with 12 months, no. No. if it's relative to the actual tasks that we're pricing.

PN493

Yes. Now, you said in answer to a question that my learned friend asked that the total number of actual workers might be less than the number of FTE that you've calculated?‑‑‑Correct.

PN494

I just wanted to test how that could possibly be the case. If you look at the - I asked you a number of questions about the concrete gang by way of example, right?‑‑‑Yes, yes.

PN495

And the concrete gangs are doing work, in part, on the stations, correct?‑‑‑Yes. Yes.

PN496

So what's the work that the concrete gang is doing on the station?‑‑‑In that instance it would be the concrete pavements, I would suggest.

PN497

So the station, I assume has a structure of some nature to shield people from the rain and signs and electronic signs and the like and there'll be a concrete base with seats in it or something, is that - that's right?‑‑‑Yes, yes. Yes, yes. Yes, in essence. Yes.

PN498

And so that the concrete gang is laying the concrete for the station structure, correct, and I assume it goes for the length?‑‑‑Yes. Yes, the foundations or the slab or whatever but, yes.

PN499

Yes, for the length of the light rail - for the length of the light rail vehicle?‑‑‑Notionally.

*** ANDREW PETER PRIEM FXXN MR GIBIAN

PN500

If that's the right word?‑‑‑Yes.

PN501

Yes. All right. And that would be done, I think, as we discussed, presumably there's a number of stations so presumably it's sequentially in some way at least, depending upon other demands, correct?‑‑‑Yes, correct.

PN502

Now, the number of FTEs you've got for that is two, right, across - well, sorry, the number of FTEs you've got is .8 for the stations' work, right?‑‑‑.8, yes.

PN503

So I take it as we discussed before, there's not a .8 of a person that's going to be doing that work, correct?‑‑‑Correct.

PN504

I take it there's - if you're concreting the station there's going to be a number of people doing that work at one time, is that right?‑‑‑Yes. Yes.

PN505

How many would you expect?‑‑‑Crews. So depending on how big it is, you know, a crew would range anywhere from, say 10 to 15, 18 people maybe but depending on the side of the pour, it - yes, it varies.

PN506

All right. So you'd have 10 to 18 - a crew of 10 to 18 performing work laying the concrete?‑‑‑Well, not necessarily 10 to 18 but a crew size for a supervisor is in that vicinity, doesn't mean they're all working on the same thing at once.

PN507

Well, I'm asking you specifically about a station which is a piece of - which is a concrete structure of some substance that goes for the length of the light rail carriages, correct?‑‑‑Yes, yes.

PN508

And how long are they going to be?‑‑‑I don't know how long the slabs are, I'm not - that level of detail is not (indistinct) but, yes.

PN509

But it's - I think we all have a picture in our minds of what the station's like?‑‑‑Yes, yes. Correct.

PN510

It's a substantial concrete work, correct?‑‑‑Well, it's relative to what you think is substantial, yes.

PN511

And you'd have a gang working on laying that concrete?‑‑‑Yes, we'd have a - yes, correct. It's not one person.

*** ANDREW PETER PRIEM FXXN MR GIBIAN

PN512

And - yes. And so obviously one person is not going to be doing it?‑‑‑Yes.

PN513

And so you said 10 to 15 and how long is that likely to take, that task?‑‑‑That's what I'm saying, that level of detail I certainly don't have at hand but a crew would be put on that would do, say the concrete or probably in this case, more the FRP would become a blended crew and we would sequence the works so that they were kept productive. So at the time of doing the pour and deepening on how big it is and whatnot, it may be the whole crew, it might be half the crew. Depends on the size of the pour, where they need joints in and whatever the, you know, the design calls for.

PN514

Yes. But the number of FTE total across the whole project for the concrete gang that you have recorded, on page 137 is two, correct?‑‑‑Yes.

PN515

But you're going to need 10 to 15 at certain points in time?‑‑‑No, because it's not - the crew is not made up of all concrete gang people, there's other skills in that, that are included in ‑ ‑ ‑

PN516

Well, how many concrete gang people would be in the crew?‑‑‑We'll come to when the supervisor puts them together but notionally it would be in that - the crew makeup will depend on the people that we're interviewing and what skills they've got. Notionally we need, you know, so the concrete gang sort of skillset, we will need float hands, we will need concreters themselves, that crew mix will depend on who we interview and what skills they are, obviously people can work generally down in that space so it would be notionally in that sort of value of the number of roles but it does depend on what we actually employ at the time.

PN517

All right. That is, you'd need 10 to 15 concrete gang or float hands, is that right?‑‑‑No. No. and again, the crew is made up of a mixture of skills.

PN518

Yes, well, which ones?‑‑‑I'm sorry, I just tried to explain that but in the - I would suggest in this and again, it comes down to what we end up delivering in the timing of it but say an FRP crew you would have a blend of say your concrete hands or your float hands and whatnot, you would have some people that are actually the concrete finishers and you'll have some people that are labourers that move between them, the steel fixers or some of the form working depending on the size of the pour. There'd likely be a blended crew because that's how we would progress the works but it certainly is not a crew of float hands if that's your question.

*** ANDREW PETER PRIEM FXXN MR GIBIAN

PN519

But - yes, but are you saying there would only be two float hands ever employed on this project?‑‑‑No.

PN520

No?‑‑‑I've said that before. That's a ‑ ‑ ‑

PN521

There's likely to be significantly more than two float hands?‑‑‑No, not - no. No, I wouldn't say significantly more, as I say, our - my expectation and then what we've (indistinct) is would be less than this so far as a total and so as a generalisation that means that any of these roles would be less. We wouldn't be looking to employ a crew of float hands.

PN522

Yes. I asked you - so you wouldn't employ two float hands, it's likely to be more than two?‑‑‑I wouldn't say it's likely to be more than two, no. I'm not ‑ ‑ ‑

PN523

All right. So you think there'd be two or - either zero, one or two float hands, is that truly your evidence to do the concreting?‑‑‑Correct, in or around that because it could be that we're actually employing, because of their skillsets and whatnot, more concrete finishers, for example, that can do that. So it's not - that is not a perfect science to say, 'We'll employ two', and I certainly would not say that we would employ a hell of a lot more than two.

PN524

And we discussed earlier you don't know how long the works on the stations are going to go for?‑‑‑I personally don't, I do because we programmed it, yes.

PN525

And - all right. Were there others that go in this crew, so they'd either be floating concrete gangs or concrete finishers, is that right?‑‑‑That's not actually what I said. It will be a blend, as I said before and depending on how the works progress and how we actually deliver the works and the supervisors. As a generalisation we would probably have a FRP crew so a crew that would be made up of people that can do the form, the reinforcing and the concreting and that may be split into smaller crews. It could be standalone crews. Notionally the roles that we need - the work that has to be done doesn't change. How we then deliver it and the people that we employ depends on the skills that we can - the people available at the time and if there is someone that is of a higher skill level that can do the work we need, we would consider that as opposed to having someone at the lower skill level like the float hand that has limited, you know, work ‑ ‑ ‑

PN526

So where they would fall is not something that we can know now, it would depend upon who applies for a job ‑ ‑ ‑?‑‑‑So ‑ ‑ ‑

PN527

If you'll just wait till I finish my question?‑‑‑Sorry.

*** ANDREW PETER PRIEM FXXN MR GIBIAN

PN528

Who applies for a job with John Holland and decisions made by the supervisors, I assume are still - or as to how to best compose a crew, is that right?‑‑‑No. The exact numbers will not be this, it's an estimate for a reason but we have to price, which we have and we've taken the lump sum responsibility to deliver the works. So with the information that we have with the team of people that work on the tenders, we understand quite well what roles we need to deliver that work, what activities we can get, how we're going to sequence the work. On that basis we price it, which we did in a competitive way and we run the job and this reflects, as I put here, what we generally would be considering to need to employ. What it turns out to be is not necessarily the two, as I say.

PN529

So there may be more or less in any of these categories depending upon how things work out?‑‑‑Well, generally less, as I say the FTEs - well, I expect that the actual number of personnel that we employ will be less than the 365.

PN530

And sorry, last question on that. And is that in part because you might contract out more work than you're estimating?‑‑‑No. So, yes, that could contribute to it but it's more around those durations and looking for those efficient - so everything is - you know, if you've got a thousand hours and you do it over 10 days or you do it over a day, drives the number of FTEs of course.

PN531

That is the period of - that is necessary for the particular works, if you can contract more of it out and get people in to do more work then you can do it over a short - you might be able to do certain parts of it over a shorter period, is that right?‑‑‑Regardless of whether we contract, so if we didn't change our delivery method from self‑perform to subcontract, the detailed planning that goes into that may mean that the duration could be longer. If the duration's longer then it's less people. If it's shorter, it's more people. Nothing to do with subcontracting.

PN532

Yes?‑‑‑At the same time, yes, you could go and subcontract if we chose to split some of that work for whatever reason, there's various reasons we might, yes, you would need less people because they would be replaced by subcontractors.

PN533

Well, I'm not sure that we're much more enlightened to be honest but that's as far as I can take.

PN534

THE COMMISSIONER: All right. Thanks.

PN535

Yes, anything?

*** ANDREW PETER PRIEM FXXN MR GIBIAN

PN536

MR FOLLETT: No re‑examination.

PN537

THE COMMISSIONER: No.

PN538

All right. Thanks, Mr Priem, that's the conclusion of your evidence?‑‑‑Thank you.

PN539

You're no longer required to be on oath?‑‑‑Thank you.

PN540

There you go.

<THE WITNESS WITHDREW [12.11 PM]

PN541

THE COMMISSIONER: All right. Mr Follett, are we ready for our last witness?

PN542

MR FOLLETT: Yes. We call Trent Smith.

PN543

THE ASSOCIATE: Please state your name and address.

PN544

MR SMITH: Trent Warren Smith (address supplied).

PN545

THE ASSOCIATE: Thank you.

<TRENT WARREN SMITH, AFFIRMED [12.12 PM]

EXAMINATION-IN-CHIEF BY MR FOLLETT [12.11 PM]

PN546

THE COMMISSIONER: Thank you, Mr Follett.

PN547

MR FOLLETT: Yes. Could you just restate your name and business address, please?‑‑‑Yes, it's (address supplied).

PN548

Your name?‑‑‑Trent Warren Smith.

PN549

And you're employed as the group manager industrial relations, John Holland Group Proprietary Limited?‑‑‑That's correct.

PN550

Have you prepared a statement for the purposes of these proceedings?‑‑‑I did.

*** TRENT WARREN SMITH XN MR FOLLETT

PN551

The court book - do you have a court book in front of you, if you could turn to page 138?‑‑‑Yes.

PN552

And that's a statement of 18 paragraphs with seven annexures dated 13 April 2022?‑‑‑Yes, that's correct.

PN553

All right. Have you had an opportunity to review that statement recently?‑‑‑I have.

PN554

Are the contents of it true and accurate?‑‑‑They are, with the exception of just a small typo, it says, 100 Anne Street rather than 1000 Anne Street, but - yes.

PN555

1000 Anne Street. Yes. Are there any other changes to the statement you wish to make?‑‑‑No, no.

PN556

Are you satisfied the contents are true and accurate?‑‑‑I am.

PN557

You adopt it as your evidence in these proceedings?‑‑‑Yes.

PN558

I tender that statement.

PN559

THE COMMISSIONER: Yes. No objection? No.

PN560

I'll admit the statement of Trent Smith dated 13 April 2022 as exhibit 4.

EXHIBIT #4 WITNESS STATEMENT OF TRENT SMITH DATED 13/04/2022

PN561

MR FOLLETT: Just wait there a moment.

PN562

THE COMMISSIONER: Yes. Thanks, Mr Gibian.

CROSS-EXAMINATION BY MR GIBIAN [12.14 PM]

PN563

MR GIBIAN: Thank you.

*** TRENT WARREN SMITH XXN MR GIBIAN

PN564

Thank you, Mr Smith. So as I understand it, this project was - or at least John Holland was announced as the preferred contractor some time in 2020, is that right?‑‑‑Yes, that's correct. Yes.

PN565

And there were some preparatory works for the work being done in 2021, designs and the like, is that right?‑‑‑Preliminary design works is my understanding, yes.

PN566

All right. I mean, what direct involvement do you have in the project?‑‑‑Well, I'm the IR manager so support from an industrial point of view, yes.

PN567

In any event, sometime in - I assume prior to October 2021 a decision was made to endeavour to enter into a Greenfields Agreement?‑‑‑That's correct. Yes.

PN568

And you sent the correspondence to - that's the correspondence which is at page 167 and following to various unions?‑‑‑Yes, correct.

PN569

So you sent separately to the ETU, the CFMEU, the Plumbing and Pipe Trades Employees Union and the AWU?‑‑‑That's correct. Yes.

PN570

And as I understand it, as I understand what you say in your statement, there were then negotiation meetings that occurred or bargaining meetings that occurred between late October and early December 2021?‑‑‑That's correct. Yes.

PN571

And the agreement was later signed, I think in February or so of this year, is that right?‑‑‑That's correct. Yes. That's correct.

PN572

I assume at the conclusion of the - sorry, those bargaining meetings involved representatives of the CFMEU, the ETU and the PPTEU?‑‑‑That's correct. Yes.

PN573

And I take it the conclusion of the bargaining meetings in December was that the CFMEU and the PPTEU reached agreement with John Holland as to the terms of the Greenfields Agreement?‑‑‑That's correct. Yes.

PN574

And the ETU communicated that they didn't agree to the terms of that agreement?‑‑‑Not at that point. That came later, yes.

PN575

All right. Sometime before February of 2022?‑‑‑Correct, that year.

*** TRENT WARREN SMITH XXN MR GIBIAN

PN576

And you then prepared the - you or someone within John Holland prepared the signature page to the agreement to be signed by Mr O'Halloran, Mr - sorry, and I assume the AMWU which wasn't participating in the meetings subsequently also communicated that they would agree to the terms?‑‑‑That's correct. Yes, yes.

PN577

And that was later than the meetings, I assume but before February?‑‑‑Correct, yes.

PN578

Or during or before February?‑‑‑Yes.

PN579

And so you then prepared the signature page, did you, for Mr O'Halloran, Mr Webb - sorry, I've lost the other names now, yourself and getting them to sign?‑‑‑Yes, that's correct.

PN580

All right. Now, you give some the evidence in relation to being provided, I think it's referred to as the BPIC Agreement at paragraph 16 of your statement?‑‑‑Yes.

PN581

Sorry, I've lost it for a moment. It's a document dated May 2021, tell me if you know but how is that communicated to John Holland?‑‑‑From memory, that came through via - yes, via the client to the project team. Yes. So - yes, on or about or, yes, shortly after May or early May from memory.

PN582

All right. And did you have any communication - by the client you mean the Government?‑‑‑The Government via - yes, so our direct client on the project is GoldLinQ, so documents would have flowed, yes, through GoldLinQ to us.

PN583

All right. And when you say, 'Would have', did you have any involvement in those - any of the communications with GoldLinQ, is it, about this?‑‑‑It was provided, as I understand it to a project portal which one of our team has access to and then distributed from there.

PN584

All right. That is, did you have any involvement in it being received or communications with GoldLinQ about the document?‑‑‑No.

PN585

All right. And - sorry, and what is GoldLinQ? Sorry, excuse my ignorance?‑‑‑So GoldLinQ is the operator of the service, the light rail, and our direct client for the project.

PN586

All right. And so is it a Government corporation or the like or is it outsourced or don't you know?‑‑‑I couldn't answer that. Outsourced as I understand it.

*** TRENT WARREN SMITH XXN MR GIBIAN

PN587

All right. Well, no doubt the Internet will tell us but all right?‑‑‑Yes.

PN588

All right. And in terms of the - sorry, if you just go to - you've annexed the document, I take it you were provided with, starting at page 1 - or that was provided in the manner you've described to John Holland starting at page 171?‑‑‑Yes.

PN589

And the description is described at - and I take it, it was then forwarded to you somehow, was it, as being involved in the industrial relations side of things?‑‑‑That's right, yes. Yes.

PN590

And then at 172 in the court book there's a description of what it's intended to do, do you see that?‑‑‑Yes, I do. Yes.

PN591

And I take it you're familiar with it?‑‑‑I am, yes.

PN592

In the - sorry, the third last paragraph on that page it indicates that the - sorry, going back a page, it is - I'm not sure whether you've had engagement with this process before but it's a specific document for this project as I understand it?‑‑‑That's correct. Yes.

PN593

As you understand it as well?‑‑‑Yes.

PN594

And sorry, going over to 172 again, the third last paragraph on that page there's a reference to the BPIC being:

PN595

A guidance document that'll fix the Queensland Government's standards and expectations to ensure the workforce - that a workforce with optimal levels of skills and experience can be attracted and retained.

PN596

Do you see that?‑‑‑Yes.

PN597

And then the next paragraph indicates that:

PN598

The Gold Club light rail stage 3 BPIC is a guidance document and not mandatory.

*** TRENT WARREN SMITH XXN MR GIBIAN

PN599

And then in the second sentence that:

PN600

John Holland can demonstrate the intent and outcomes of the BPIC in any manner it chooses to nominate.

PN601

Do you see that?‑‑‑I do, yes.

PN602

Is there some process by which John Holland demonstrates that?‑‑‑In terms of how we responded to it? I think we responded, yes, formally back to the client via - so there's a request for information that came through and we responded back to the client formally in terms of how we're going to deal with it.

PN603

I'm sorry, there was a request for information that came through from GoldLinQ?‑‑‑It came via GoldLinQ, yes, it would have originated, I assume, from the State but it came via GoldLinQ and, yes, we were required to respond to that in terms of, you know, the BPIC document.

PN604

Sorry, and what did it require you to respond to?‑‑‑It wanted us to - obviously it was the policy they'd introduced, it wanted us to give some consideration as to whether we could adopt that on the project.

PN605

Sorry, was this ‑ ‑ ‑?‑‑‑And - sorry, also the impact of adopting that on the project.

PN606

All right. Was this a detailed document or what was the nature of it? It's a questionnaire you have to fill in or what's the ‑ ‑ ‑?‑‑‑It's a series, yes, you know, three or four questions from memory.

PN607

All right. And then you - or John Holland replied to that by answering the questions?‑‑‑Correct.

PN608

All right. And did you prepare that material?‑‑‑I did, yes.

PN609

All right. And what did you say?‑‑‑Look, I think we agreed to undertake an impact assessment which was a process we went through to understand what the cost impact may or may not be to the document and outlined that, yes, our approach to, you know, adopting any such document would be around engaging with all the unions in respect of that.

*** TRENT WARREN SMITH XXN MR GIBIAN

PN610

And when did this occur? That is, was it around the time you got this document initially in May?‑‑‑I think so, yes, it would have been - yes, possibly mid‑year.

PN611

So during 2021?‑‑‑Yes, correct.

PN612

All right. And is there a further process for John Holland to demonstrate how it's satisfying the intents and outcomes of the Gold Coast Light Rail BPIC?‑‑‑No.

PN613

That you're aware of at least?‑‑‑Not that I'm aware of, yes, that's right.

PN614

All right. That is you're not aware of any formal process whereby you have to report back at some later point?‑‑‑Look, I think now that the contract's on foot, I understand there might be some commercial arrangements around how we have to report back but, yes, I'm not familiar with those.

PN615

All right. And in terms of - so you said you responded by saying you'd do a - sorry, I might have lost the words you used, but a feasibility - well, I don't think 'Feasibility' was exactly the word, impact statement you said?‑‑‑Yes, we would do an - that's correct. We would do an impact assessment.

PN616

Impact assessment?‑‑‑Yes. And we were clear that - yes, that you know, obviously we are a code covered entity and any arrangements we entered into would have to be obviously code compliant.

PN617

Sorry, what do you mean by 'Code compliant'?‑‑‑Sorry, compliant with the building code.

PN618

Yes. All right. And you then - I mean, an agreement was ultimately made. You say in your statement that there were various changes to the agreement. Now, I think we have the content of both - well, you used the term, 'Substantial variations', I think. Now, we have both so I don't think I have to take you through them but you agree that the rates of pay are the same between both documents?‑‑‑Yes, that's correct.

PN619

The allowances are the same?‑‑‑That's correct.

PN620

The shift work conditions are the same?‑‑‑That's correct.

PN621

I think the hours of work are the same?‑‑‑That's correct.

*** TRENT WARREN SMITH XXN MR GIBIAN

PN622

I think there's identical provisions about income protection and redundancy, is that right?‑‑‑I don't think the redundancy clause is identical, from memory.

PN623

Right. And I think the differences are mostly in relation to - sorry, there's issues in relation to meal breaks, rest periods, leave and termination of employment and a few training and OH&S matters that are additions that aren't dealt with in the BPIC document, is that a fair assessment?‑‑‑Yes. That's a fair assessment. And some exclusions as well, yes.

PN624

All right. Sorry, what are the exclusions?‑‑‑There was exclusion - so security of payment provisions from memory were excluded out of the BPIC document, the guidance document that was provided to us. Off the top of my head, yes, that's the one that jumps out.

PN625

All right. Can I just have a minute? Nothing further.

PN626

THE COMMISSIONER: All right.

RE-EXAMINATION BY MR FOLLETT [12.26 PM]

PN627

MR FOLLETT: Just in terms of the similarities between the BPIC document and the agreement, was there negotiations about what the content of those various entitlements should be?‑‑‑Absolutely, yes. I guess the union made it pretty clear that that was the union's and the union made it pretty clear that that was their starting position in terms of rates and conditions. We obviously had a lot of internal discussion about that too, particularly in the context of Cross River Rail, Brisbane Metro and a range of sort of projects in south east Queensland and the sort of east coast more broadly and felt that it was appropriate.

PN628

All right. Nothing further.

PN629

THE COMMISSIONER: All right. Thanks, Mr Smith?‑‑‑Thank you.

PN630

That's the conclusion of your evidence, you're free to go?‑‑‑Thank you.

PN631

No longer required to be on oath.

<THE WITNESS WITHDREW [12.27 PM]

*** TRENT WARREN SMITH RXN MR FOLLETT

PN632

THE COMMISSIONER: All right. That concludes the witness the evidence. Now, I said earlier in the day, Mr Gibian, I'd give you a chance to say anything you wish to in relation to the issue about procedural fairness.

PN633

MR GIBIAN: Yes.

PN634

THE COMMISSIONER: Did you want to - I mean, the issue is are we going to go to submissions today? I mean, anyway, what did you want to say?

PN635

MR GIBIAN: Could I ask for an adjournment for a period of time just to have a quick discussion about it?

PN636

THE COMMISSIONER: Yes, sure.

PN637

MR GIBIAN: I might talk to my learned friends about timing and the like just so that we don't impact upon that but ‑ ‑ ‑

PN638

THE COMMISSIONER: Yes.

PN639

MR GIBIAN: So either taking an earlier lunchbreak and returning at 2.30 or something like that or if I could have maybe 15 minutes now, whichever is convenient to the Commission and the other parties.

PN640

THE COMMISSIONER: Well, it's 12.30, I mean, I'm content to have a lunch break.

PN641

MR FOLLETT: Yes, an early lunch sounds convenient, whether we resume at 1.30 or 1.15 might depend on how long people's estimates are.

PN642

THE COMMISSIONER: Sure.

PN643

MR FOLLETT: I think my estimate is probably half an hour to 40 minutes.

PN644

THE COMMISSIONER: All right. Mr Massy?

PN645

MR MASSY: The same for me, Commissioner.

PN646

THE COMMISSIONER: All right. Yes.

PN647

MR GIBIAN: I think 1.30 should be sufficient.

PN648

THE COMMISSIONER: All right. We'll adjourn and reconvene at 1.30.

LUNCHEON ADJOURNMENT [12.28 PM]

RESUMED [1.34 PM]

PN649

THE COMMISSIONER: Mr Follett?

PN650

MR FOLLETT: I'm proceeding on the assumption, Commissioner, that our statutory declarations are also before the Commission for the purposes of the application.

PN651

THE COMMISSIONER: Yes.

PN652

MR FOLLETT: I haven't formally read them in any sense, but - - -

PN653

THE COMMISSIONER: I've got them.

PN654

MR FOLLETT: - - - to the extent necessary I read them.

PN655

THE COMMISSIONER: Mr Massy?

PN656

MR MASSY: Similarly, can I indicate that the CFMEU and the CEPU rely on each of the form 21s which have been filed on behalf of those two organisations.

PN657

THE COMMISSIONER: Yes.

PN658

MR FOLLETT: Am I first off, Commissioner, given it's my application?

PN659

THE COMMISSIONER: I am quite ambivalent - Mr Gibian, are you happy for Mr Follett to go first?

PN660

MR GIBIAN: Yes. I had assumed I was going first since I went first this morning, but I'm indifferent.

PN661

THE COMMISSIONER: All right. Mr Follett, I'll hear from you now, thanks.

PN662

MR FOLLETT: Thank you. This is an application for approval of the John Holland Queensland Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement, a greenfields agreement. The application is before the Commission at court book 91. It's dated 1 March 2022. There is the employer and three unions that the agreement is expressed to cover that support the approval of the agreement. The AWU opposes the approval of the agreement. We filed an outline dated 13 April 2022 which we rely upon.

PN663

In light of the Commissioner's indication this morning about hearing from the AWU, there are four matters that we seek to address: (1) the signature issue relating to John Holland Queensland; (2) the three grounds of opposition from the AWU, so number 2, signature of the CEPU; (3) majority representation under 187(5)(a); and (4) public interest under 187(5)(b).

PN664

Dealing with the employer's signatory requirement, unlike the position with respect to the CEPU there is no dispute that the employer covered by the agreement signed it. It's just a question that the signature requirements in accordance with the regulations were not strictly complied with. As such, rectification of the signature page is directly within the principles in footnote 11 of our outline of submissions and the power of the Commission under section 586.

PN665

There doesn't appear to have been any submission to the contrary and, in our submission, the Commission should exercise its discretion to rectify that page accordingly. I take you then to point 2, the CEPU's signature. The last time the AWU ran an argument of this type it was ordered to pay costs on the basis that it was bound to fail and lacking in - - -

PN666

MR GIBIAN: It was not ordered to pay costs.

PN667

MR FOLLETT: It was not ordered to pay costs?

PN668

MR GIBIAN: No, it was not ordered to pay costs.

PN669

MR FOLLETT: It was described as bound to fail. The premise of the submission is misconceived for a start, even if it was accepted as true. The AWU appears to submit that the CEPU plumbing division is not an employee organisation. Even if you were to accept that, that's not an impediment to approval. It would only have a consequence that the CEPU wouldn't be covered. Of course there's no obligation to have signatures of organisations not covered, it's only signatures of those who will be covered.

PN670

THE COMMISSIONER: Can I just be clear, when do you say the agreement was made?

PN671

MR FOLLETT: On the day it was signed - well, it's in the statutory declaration, February 2022, I believe. 22 February 2022, which would accord with the last date that a signature was appended.

PN672

THE COMMISSIONER: Yes. So you don't say that there was an agreement made when the national official signed by the CEPU?

PN673

MR FOLLETT: That's what I would describe as the Alamo submission. That's the last submission we will make on this point.

PN674

THE COMMISSIONER: Okay.

PN675

MR FOLLETT: There are three good reasons why we don't need to get to that, but if we did need to get to that, that would be an alternative submission available.

PN676

THE COMMISSIONER: Well, while we're on it I may as well - the other issue in my mind is if the agreement was made in February, was it being made for members of the plumbers division of the CEPU? I mean, do I count the sparkies?

PN677

MR FOLLETT: Yes.

PN678

THE COMMISSIONER: Why?

PN679

MR FOLLETT: It's the CEPU.

PN680

THE COMMISSIONER: Okay. I follow your argument.

PN681

MR FOLLETT: Plainly the plumbing division is not a union. It's not an employee organisation under the Act. It cannot be a party to a greenfields agreement. It cannot be covered by any agreement, let alone a greenfields agreement. There would be plenty of greenfields agreements signed by a division or a branch of a union and there are some that will be referred to I think in the CFMEU's submissions. Everyone proceeds on the basis that the intention was to cover the organisation because it's the only entity that can be covered.

PN682

THE COMMISSIONER: So what am I to do with Mr Ong's statutory dec if he's saying the electrical division doesn't want to be covered?

PN683

MR FOLLETT: Well, Mr Ong is not here to explain that position. I guess that's probably a question best left to be addressed from the CEPU themselves.

PN684

THE COMMISSIONER: Sure. I just want to give an opportunity in fairness to let you know these are issues exercising my mind.

PN685

MR FOLLETT: Yes. Well, Mr Massy is here representing the CEPU.

PN686

THE COMMISSIONER: Sure, but it affects you just as much as him.

PN687

MR FOLLETT: It does, but ultimately it's legally irrelevant in our respectful submission. Ultimately, as we said, the Commission's traditional approach to these sorts of matters is to simply regard it as a construction exercise. That is, you're just looking at the agreement and you're saying, well, who is intended to be covered. It's evidently the CEPU because it is the only organisation that can be covered. So when Mr O'Halloran is signing the document, he's signing the document on behalf of the CEPU irrespective of he's putting 'plumbing division'. Now, I assume the Commission has an electronic copy of our authorities.

PN688

THE COMMISSIONER: Yes. In fact I think they are being run off. I haven't got them all yet, but that's okay.

PN689

MR FOLLETT: I think we have got a spare copy. I was wondering if the Commission has available a copy of AWU v Leighton Contractors, the Federal Court decision.

PN690

MR GIBIAN: I think we handed up a folder which has it in it.

PN691

THE COMMISSIONER: Yes, it's in one of the other bundles, isn't it, yes.

PN692

MR FOLLETT: That will make life easier.

PN693

THE COMMISSIONER: Yes. Just while you're on it, look, there are a number of decisions that have been handed up in the authorities relied upon that go to non‑greenfields signatory issues.

PN694

MR FOLLETT: Yes.

PN695

THE COMMISSIONER: Are there any that go to this specific - are on all fours with this situation?

PN696

MR FOLLETT: The closest is the case I was just about to take you to.

PN697

THE COMMISSIONER: Okay.

PN698

MR FOLLETT: My learned friend is right to say that each of the decisions we rely upon with respect to 586 relate to non‑greenfields agreements and, with respect, my learned friend is also right that there is a distinction in the legislative framework with respect to those agreements. I'll return to that when I address the Alamo argument, but by reference to Leighton Contractors this was a case - if I could ask the Commissioner to turn to paragraph 7. At about nine lines down there is a sentence commencing:

PN699

In the latter case the Queensland branch is called the Construction, Forestry, Mining and Energy Union Construction and General Division Queensland Construction Workers Divisional Branch ... in the agreements, the Queensland Divisional Branch is identified as a party.

PN700

So that is this case.

PN701

A Mr Peter Close signed each agreement, purportedly on behalf of the Queensland Divisional Branch. However, it is common ground that the intended party was the fifth respondent.

PN702

Now, that reflects what was said to be common ground. It reflects obvious reality because the only entity that can be covered is the CEPU. The argument about Mr O'Halloran's authority appears to be based on the rules. We simply note, as we have in footnote 10, that the rules weren't so limited and construed in that fashion in the Leighton Contractors case with respect to the CFMEU, which were essentially similar rules identifying the authority of the national secretary and the authority of secretaries of branches.

PN703

Plainly, in our respectful submission, Mr O'Halloran had apparent authority to act on behalf of the CEPU. Once one construes the reference to the plumbing division as a reference to the CEPU, Mr O'Halloran was purporting to act on behalf of the CEPU in signing it. Having doing so, was representing to the world at large and to the co‑signatories that he was authorised to sign and indeed he notes in the document that his authorisation is authorised by the rules of the union.

PN704

The AWU asserts that the indoor management rule doesn't apply, but provides no basis for that assertion when two members of the Full Court of the Federal Court have held in a binding judgment for the purposes of this case that the indoor management rule is available. That's Dowsett J at paragraphs 13 and 30, with McKerracher J agreeing at paragraph 35.

PN705

There is no requirement for that rule to apply that agency, whether apparent or actual, be established with respect to Mr O'Halloran in any case because that was the very point on which her Honour Katzmann J dissented on that particular matter in Leighton Contractors. The Commission will see that at paragraph 80. It merely needs to be an act - that is the act of signing - that is put forward as the act of the CEPU.

PN706

The CEPU is here putting forward that act as the act of the CEPU. Once that is done, what took place is taken to have complied with any relevant legislative requirements because of the operation of the indoor management rule. In any case, Commissioner, there is no respectable argument available in our submission that the signature of Mr O'Halloran hasn't been ratified by the CEPU. It's not clear from the AWU's submissions what they say about ratification.

PN707

It appears to be suggested that the act of ratification, if there was one, was Mr Setches' signing of the agreement in April. That's evidence of ratification, but it's not ratification. Certainly, as I said, that is evidence of ratification as the acting national secretary of the CEPU, but in any case the CEPU's appearance and submissions in this proceeding in support of the approval of the application is itself a relevant act of ratification.

PN708

In our respectful submission, that conclusion is inescapable when one has regard to Leighton Contractors. If the Commissioner has that and if I can take you to paragraph 96.

PN709

THE COMMISSIONER: Yes.

PN710

MR FOLLETT: Commencing at the end of the second line:

PN711

While there is no evidence of express ratification, for example by a resolution of the CFMEU's National Executive, ratification may be implied by conduct. Conduct will be effective to ratify an unauthorised act where it is in terms sufficiently unqualified as to justify the inference that the principal intended to take responsibility for whatever transaction the agent entered on the principal's behalf, such as where the principal commences proceedings to enforce the contract effected by the agent ... Ratification can occur by the position taken in litigation.

PN712

At 97 there is a reference to:

PN713

Rule 31 of the National Rules entitled the National Secretary, the National President or National Assistant Secretary ... to bring and defend proceedings on behalf of the union.

PN714

There is a corresponding provision in the CEPU's rules at rule 18.1 that authorises the national secretary to bring and defend proceedings. About six lines down, in paragraph 97:

PN715

If, contrary to the opinions I have expressed and the conclusions reached below, he did not have authority to sign the agreements -

PN716

this is Mr Close in that case -

PN717

the positions taken by the CFMEU in the litigation relating to the approval of the agreements and in this proceeding operated to ratify his acts.

PN718

THE COMMISSIONER: So you're saying Mr O'Halloran was signing on behalf of Mr Ong's members in February?

PN719

MR FOLLETT: He was signing on behalf of the CEPU. Mr Ong didn't have any members because there was no employees.

PN720

THE COMMISSIONER: Well, you know what I mean.

PN721

MR FOLLETT: Respective future members?

PN722

THE COMMISSIONER: Yes.

PN723

MR FOLLETT: Yes, but they're not Mr Ong's members. They're not even members of a branch. They're a member of a union. They are organised into branches and divisions, but they're a member of the union. In any case if Mr Massy's submission is, 'I'm acting for the CEPU, the conglomerated body, and we are here ratifying the act of Mr O'Halloran', then it doesn't really matter what Mr Ong may or may not have thought.

PN724

THE COMMISSIONER: I guess that comes back to my question about when the agreement was made, who it was being made for at that time.

PN725

MR FOLLETT: Yes, and if you read the balance of paragraphs 97 and 98 of Leighton Contractors, an act of ratification - if you accept Mr O'Halloran's act was an act of agency, the agreement was made when he appended his signature. If you're against that argument but you accept that the CEPU has now ratified Mr O'Halloran's conduct, the act of ratification gives validity to the action of Mr O'Halloran when he did it. It's an ab initio thing and that's what 97 and 98 say about what ratification is.

PN726

So if the CEPU turns up today and say, 'We are supporting it and we are taking that act to be our act', it treats the CEPU as having sign the agreement when Mr O'Halloran put pen to paper.

PN727

THE COMMISSIONER: I understand the submission.

PN728

MR FOLLETT: Finally and in any case, even if you were to rule against us on every one of those submissions and look then at the act of Mr Setches signing the agreement, even if that had the effect of making the agreement - we only get here of course if you have dismissed the preceding arguments - that the agreement was made on 8 April 2022, that is a mere procedural defect. That is, that the application for approval has been made before the agreement itself was made. That is an irregularity in the way in which compliance with the statutory requirement has occurred.

PN729

I don't have copies, unfortunately. They would have been distributed electronically, Commissioner, but given I've got a hard copy here, I think - I hope. Here it is, Griffiths Cranes.

PN730

THE COMMISSIONER: Yes, I think that one appears in the other bundle, as well.

PN731

MR FOLLETT: All right. I'm not sure if it's in the previous bundle. It's in our bundle.

PN732

THE COMMISSIONER: Well, I've got it, anyway.

PN733

MR FOLLETT: The relevant paragraph in that respect, Commissioner, is paragraph 43, talking about section 586(b):

PN734

Taken together, their use in section 586(b) connotes a failure to comply with or a departure from a prescribed requirement in the way in which an application permissible under the Act is made; that is, an irregular way in which an application is made.

PN735

It is irregular to file an application for approval of an agreement before it's made. You would, therefore, in our submission, have power under 586(b) if you thought it necessary to regard the agreement as being made on 8 April and that the irregularity with the fact that the application precedes that as being waived.

PN736

Turning to the third question of majority coverage, it appears to be accepted by all parties that the reference to the entitlement to represent the majority of employees who will be covered by the agreement in 187(5)(a) is a reference to a quantitative assessment of employees who will actually be covered in fact. We refer in that respect to BESIX Watpac, the decision of Colman DP in footnote 12. The basis of the expert report and the AWU's submissions appears to be premised upon the correctness of that approach.

PN737

That then raises two matters to be determined; one factual and one legal. The factual question, how many employees will be covered to perform work under the agreement and in what classifications. That's the factual question. Then, having regard to that factual finding, are the CFMMEU, AMWU and CEPU eligible to represent 50 per cent plus one of those persons. The only direct evidence the Commission has as to the first factual finding is from Mr Priem.

PN738

The expert report of Mr Faruqi in the circumstances of this case is somewhat of a misnomer. Mr Faruqi may well be an expert generally and we don't quibble with any of his qualifications in that respect, but when to comes to this particular project he is very far from an expert. Indeed, you heard the evidence from his own mouth; all he is giving evidence about is how he would run the project if he was running the project. He's not running the project and in such case he then is, in our respectful submission, irrelevant.

PN739

Mr Faruqi is an outsider, standing outside the tent looking inside. He doesn't know, can't hear, doesn't understand what's going on inside the tent, but offers a series of speculative opinions about how he would do things if he was building the project. As cross‑examination of him demonstrated, his estimate of head count and his estimate of classifications was entirely based upon a desktop analysis without any real world understanding of what is to be done by whom and in what order. The opinion was based upon a series of assumptions which are clearly wrong, which have a fundamental impact upon the reliability of the estimate.

PN740

The duration of construction activities, that estimate which was fundamental to his numbers of head count, was wrong. The work segments and sequencing at work, those assumptions were wrong. The report on its face includes a large number of roles that are not covered by any classification in the enterprise agreement and there are a large number of roles that are not going to be performed - large number of activities and roles - by any John Holland Queensland employee. Mr Priem's evidence was at a holistic level. There is an estimate of some 40 per cent of subcontract labour.

PN741

As became apparent from the cross‑examination of Mr Faruqi and indeed Mr Priem, John Holland has agreed to construct the project for a price. That price is based on, among other things, cost of labour. Cost of labour is the cost of the number of persons in a number of roles multiplied by the labour cost of those roles. John Holland is a very large national constructor. It's apparent that a very detailed amount of work went into project planning. Mr Priem's evidence referred to some thousands of lines of planning data. The suggestion that there is going to be some difficulty, uncertainty, lack of reliability of those assessments cannot, in our respectful submission, be taken seriously.

PN742

There was some cross‑examination directed towards FTEs and head count. It's a bit of a distraction because what is crucial is the proportions. There could be 10,000 employees of John Holland Queensland on this project, but provided the proportions of those 10,000 employees accord with the proportions of the planning document undertaken by Mr Priem, you get the same outcome. It doesn't matter whether there are 300 people, 365, 400, 600, 800, what is relevant is whether or not the proportions of those people accord or are likely to accord with the proportions identified by Mr Priem.

PN743

The entirety of his statement and the analysis that sits behind it goes only to that question. That's why you have the decimal point labour components. It's all a proportionality exercise. Clearly on the probabilities from a factual perspective the Commission would accept the evidence or Mr Priem over the fundamentally less relevant and less informed opinion of Mr Faruqi. Once that is done, in our submission, this particular factual contest is barely that. That then moves to the legal issue, coverage of the union rules.

PN744

THE COMMISSIONER: Just in terms of the - while we're on that - language in 187(5), the requirement for me to be satisfied, is the requirement as a matter of a jurisdictional fact or is it a discretionary judgment?

PN745

MR FOLLETT: What is required is you to reach a state of satisfaction. Whether the agreement was made is not a jurisdictional fact. You have to be satisfied it was made and you have to satisfied of this particular requirement. Insofar as you make a House v the King error with respect to undertaking that state of satisfaction, that will be jurisdictionally flawed, but it's not a correct or incorrect finding; so to use the nomenclature of the Commission it's not the correctness standard, it's the discretionary standard.

PN746

Ultimately that's informed by the passages referred to in our submissions at footnote 13 by reference to Watpac. Each of those paragraphs there, 44, 45, 47 and 50 talk about the evaluative assessment that the Commission needs to undertake on the available material before it, appreciating that making a finding about who's likely to be employed on a project and how many of them involves prognostication and prediction.

PN747

No doubt you will hear a lot in my learned friend's submissions about reliability and prognostication and predictions, and it could be this and it could be that. You can take all of that, but ultimately the Commission's task is to do the best it can with the material it has. You either reach a state of satisfaction or you do not. I don't want to say anything about the coverage questions. I'll leave the two unions to fight that out.

PN748

THE COMMISSIONER: Okay.

PN749

MR FOLLETT: It's more their turf. That leads to the fourth point, public interest. This argument appears to be maintained as more of a face‑saving exercise as opposed to a submission seriously put. It's not quite clear what exactly the submission is. It appears to be suggested that because terms and conditions of some of the document are consistent with terms and conditions in the BPIC, that they were not the product of negotiation and the Commission shouldn't go about approving agreements that haven't been negotiated.

PN750

That assumption is wrong. It's inconsistent with both Mr Priem's evidence and Mr Smith's evidence, who said even in relation to those terms and conditions that accord with the BPIC there was still negotiation about them and the industrial parties ultimately accepted that they were appropriate terms and conditions. In any case, consistency with the BPIC is something that's more likely to attract the public interest rather than detract from it. It's a Queensland government funded project. The public interest is more likely to be found in those materials rather than the particular industrial interests of the parties to the agreement. Subject to any matters of reply, they are our submissions.

PN751

THE COMMISSIONER: Thank you, Ms Follett. Mr Massy?

PN752

MR MASSY: Thank you, Commissioner. Might I just hand up, in an endeavour to shorten my submissions, an outline of the two unions who I act for's final submissions. Can I start, Commissioner, by saying that of the four matters that my learned friend Mr Follett identified, I only wish to address these last three, being the question of the agreement being made with the CEPU, majority coverage and very briefly this question of public interest.

PN753

Can I deal with the first matter, which is the question of the agreement being made. That is dealt with in my submissions at paragraphs 3 to 9. I won't ask the Commission to read that now. I endorse what my learned friend Mr Follett said in this respect and can I make very clear that my appearance today is on behalf of the CEPU. This is the CEPU's position in respect of the agreement, not a particular branch.

PN754

Now, it is true that the agreement as expressed contains a misnomer. When it expresses the parties to the agreement as being, at 1.1(4), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Plumbing Division, Queensland, that is a misnomer. There is no juristic person which answers that description.

PN755

As a matter of construction of the agreement the question is did the parties objectively - and again just focusing on the text - intend to make an agreement with the CEPU or did the parties intend to make an agreement which was made with a party not known to the law and couldn't be made. In my submission, the answer to that is obvious; objectively construing the terms of the agreement the parties intended to make an agreement with the juristic person.

PN756

THE COMMISSIONER: Just on that, Mr Massy - and this is the part I'm grappling with - the evidence of Mr Smith was he sent the letters out, he said in evidence today and, as I recall, Mr Ong got back to him before filing and said, 'We don't want to sign.' What am I to make of that?

PN757

MR MASSY: Well, I will come to that question in a moment, but just dealing with the question of construction, construction of written documents of this nature is an objective test. The subjective intentions of the parties aren't relevant. The starting point is what does one make of the words on the page and was this intended to be an agreement between, as I say, a non‑juristic person or the CEPU. In my submission, there can only be one sensible to that.

PN758

At footnote 3, Commissioner, I've given you a number of examples and I don't purport them to be exhaustive of circumstances where the Commission has regularly approved agreements where they are expressed to be between an employer and a divisional branch of a union. That is obviously because the Commission has proceeded on the basis - and, in my submission, it's the only sensible basis - that the parties intended to refer to the registered organisation.

PN759

Now, once you accept that the agreement is between the employer and the registered organisation, at that point the passages from Leighton Contractors that my learned friend took you to concerning the indoor management rule, which was accepted by Dowsett J and McKerracher J as applying, mean that the AWU cannot raise this argument. They cannot as an outsider to the agreement and an outsider to the corporation say the corporation has not complied. The corporation is entitled to the benefit of the rule in (indistinct) case as much as the other parties to the agreement are.

PN760

THE COMMISSIONER: Isn't it distinguishable in the sense that in that matter, in the Leighton's matter, you didn't have another part of the CFMEU saying, 'We don't want to be part of this?'

PN761

MR MASSY: No, because you don't have that here either. I am here on behalf of the CEPU. A position expressed back in February or March of Mr Ong is not the position of the CEPU; that is the difference. Now, importantly, even if we were to go past and somehow or other say notwithstanding that the effect of the Full Court of the Federal Court's judgment is that they cannot even raise this point, if the Commission was to say, well, Dowsett J and McKerracher J are wrong and they can raise the point, they run headlong into the problem of ratification.

PN762

THE COMMISSIONER: That's why I put it to you isn't it distinguishable as a reason I've given.

PN763

MR MASSY: No, in my submission, it is not.

PN764

THE COMMISSIONER: Okay. I just wanted to invite you to say any more on it.

PN765

MR MASSY: No, in my submission the fact that Mr Ong at the time suggested that he didn't think the union should be a party to the agreement is not, in my submission, any way relevant to the question of in circumstances where the agreement is between the union and the employer, and there has been an act put forward by the union complying with statutory requirement. In those circumstances an outsider cannot say the agreement does not meet the statutory requirement.

PN766

That's not to say that in certain circumstances you might not be faced with a case where a member of the union was to turn up - perhaps Mr Ong - and to say the person who is asserting authority doesn't have it, then you might have a fight in those circumstances, but we're talking about an outsider to the process, Commissioner, and that's the difference.

PN767

Now, even if you're against me on that point, the issue of ratification completely defeats the AWU contention. The reason for that is ratification in this case is evidenced in a number of ways. Firstly, by the CEPU supporting the approval of the agreement in this proceeding. It's also evidenced by Mr Setches, the acting national secretary, having signed the agreement.

PN768

The AWU's submission in respect of ratification appears to proceed on a misunderstanding of the notion of ratification. There is a bundle of authorities that are ring‑bound which are my client's. If you turn to tab 7 you will see a decision of the High Court in Davison v Vickery's Motors.

PN769

THE COMMISSIONER: Yes, I have got it open.

PN770

MR MASSY: If you could come to page 19 of that, which is in Isaac J's judgment. The first full paragraph on the page begins with the words, 'The basic assumption of the case.' Do you see that, Commissioner?

PN771

THE COMMISSIONER: Yes, I've got it.

PN772

MR MASSY: Could I ask that you read all the way down to the words, 'Fictions, are, however, not arbitrary.'

PN773

THE COMMISSIONER: Yes.

PN774

MR MASSY: The effect of that - and this is the same proposition that my learned friend took you to from the Full Court in Leighton's - is once the matter is ratified it is ratified from the time of the act of the agent. So what ratification has done here is not signed the agreement again or made the agreement anew, but endorsed Mr O'Halloran's signing of the agreement.

PN775

Irrespective of what arguments there might have been about whether Mr O'Halloran had authority when he signed it in February, the effect of the CEPU's conduct now in both supporting the application and in supplying Mr Setches' signature is to ratify and endorse the original act of Mr O'Halloran. Even if we get to the question of ratification, the correct analysis is that the agreement was made when Mr O'Halloran signed it, I think on 22 February 2022.

PN776

Now, can I just say that this is somewhat of an arid debate in any event because there is no debate that on the evidence of the CEPU through both of its branches participated in the negotiation for the agreement. That is sufficient to make the CEPU a bargaining representative for the purposes of section 177. Through both of its branches it is now applied to be covered by the agreement and would be entitled to be covered by the agreement because it was a bargaining representative.

PN777

Section 187(5)(a), which is the real question in this case, isn't concerned with organisations who are a party to the agreement, but it is concerned with organisations who will be covered by it. So ultimately this is a very large diversion, because the CEPU's eligibility is still relevant for the question of compliance with 187(5)(a), in my submission. Now, unless the Commission has any questions about that topic, I propose to move on to the second issue which is the majority coverage.

PN778

THE COMMISSIONER: I'm happy for you to keep going.

PN779

MR MASSY: Can I start by adopting what my learned friend Mr Follett said about this question of the number of employees and the contest between Mr Priem and Mr Faruqi's evidence. I don't need to repeat that, but in my submission the Commission could only sensibly proceed on the basis of Mr Priem's evidence.

PN780

Can I also endorse what my learned friend said in respect of the proper approach to section 187(5)(a) and what was said by Colman DP in BESIX. Yes, it is a matter of prospectively assessing the evidence and trying to establish who will be employed, and whether the unions can cover them. It is true that that is somewhat prospective and involving elements of speculation, but that is the nature a greenfields agreement.

PN781

Can I come to the question of coverage. The AWU contention that the union parties can't cover a majority arises from two matters. Firstly, whether the CFMEU is entitled to represent plant operators and, secondly, whether the CFMEU is entitled to represent the concrete workers. In the bundle of authorities at tab 17 there is a copy of the CFMEU rules. Can I ask that you turn to page 9 of those rules, Commissioner, and you'll see rule 2(E)(a). That is what is known as the FEDFA part of the CFMEU's eligibility rule.

PN782

In my submission, insofar as the question concerning plant operators arises in this matter, the question is what is the proper construction of the introductory words to subparagraph (a), being 'an unlimited number of all classes of engine drivers.' Before I come to the cases which concern that, might I just remind the Commission of the effect of the High Court's decision in Re Colburn. That is behind tab 10. I don't ask the Commission to open it now, but at page 150 the court notes that the natural reading of this rule is that there are three sections.

PN783

The first section concerns the engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers and motor drivers. The second category is the attendants, greasers, cleaners, trimmers and other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power. The third part is the boiler attendants.

PN784

The important part of Re Colburn is that the first part of the rule, being the occupational operators and drivers part of the rule, is not limited to a particular industry. The Commission might recall that Re Colburn had its genesis in a contention by the AWU that the first part of the rule had no application to civil construction.

PN785

Now, returning to the question of the proper construction of this phrase 'an unlimited number of all classes of engine drivers', can I ask the Commission to take up the decision behind tab 11 in the bundle, which is the Full Bench decision in Federated Engine Drivers and Firemen's Association of Australasia.

PN786

THE COMMISSIONER: Yes, I've got that open now.

PN787

MR MASSY: You will see, Commissioner, at the mid part of page 694 - and I should pause to interpolate here this was a decision in the New South Wales Commission where the FEDFA sought re‑registration after having been deregistered. It's a reminder that all that's new is old. There was a contention from the AWU that the way in which the FEDFA's eligibility had been expressed was not broad enough to capture plant operators. You'll see that being expressed in the middle part of the page.

PN788

Then there is some discussion about the meaning of the word 'engine' and then if you come over to page 695 there is the paragraph which begins, 'In the view of the very broad meaning.' Can I just commend that passage to the Commission. I won't read it out aloud, but in my submission that is authority for the proposition that those words should be understood as embracing plant operators.

PN789

Now, the Commission would be well familiar with the fact that for nearly a hundred years the FEDFA has secured awards for plant operators of various different kinds. I would just ask that the Commission take up the AWU bundle because it's easier to find; the bundle at tab 8. There is a decision of McCreadie C concerning an application by the FEDFA for a new award for engine drivers and firemen.

PN790

Some 10 unions objected to the making of that award on the basis that a classification sought to be included in the award went beyond the FEDFA coverage. If the Commission comes to page 100, you will see the penultimate paragraph and the ultimate paragraph on that page. I commend those two paragraphs to the Commission.

PN791

THE COMMISSIONER: Yes, I'm looking at them.

PN792

MR MASSY: Then if you come over to the top of page 101, the first paragraph there where McCreadie C rejects the contention that engine drivers is confined to drivers of steam engines and stationary engines. Then the next couple of paragraph the Commissioner considers what the effect of various occupations which had been added to the rule might have been.

PN793

Then three paragraphs above the heading 'Excavator drivers', the Commissioner expands the types of engines covered - or finds that the types of engines extends to those listed there, but in my submission that is not an exclusive listing of the engines but is in addition to those which have been identified at the bottom of page 100 and the top of 101. I can make good that by asking the Commission to come forward in the decision to page 115 where, I should say, this is now in the text of the award which was made.

PN794

At the bottom left‑hand corner you will see that there is a heading - and this is in the classification section obviously - 'Mechanical plant drivers or operators'. First we see pneumatic tyre tractors, crawler tractors and group 2 over the page, road rollers, road rollers again, Navy dragline or drench‑type excavation, pole driving machines. At the bottom of the page, loaders.

PN795

Then over the page to 117, excavators, graders, loaders, front‑end or overhead loaders. It continues on. In my submission, the award is entirely consistent with the earlier decision of the New South Wales Full Bench holding that for a very long time the FEDFA has represented plant operators. Can I just ask the Commission to turn up the AWU's submissions in this matter. If we can go to paragraph 20 in those submissions.

PN796

THE COMMISSIONER: Yes, I've got it now.

PN797

MR MASSY: At the start of paragraph 20 they note that my clients have relied on some decisions, one of which I've taken you to and one which I'll come to shortly. In the last sentence they say:

PN798

However, these cases have been overruled by following decisions.

PN799

Can I be very clear, in my submission that contention is wrong and it would be an error for the Commission to accede to it. As I read the submissions of the AWU, in order to justify that contention they rely on a decision of the Western Australian Industrial Court in the FEDFA v Mount Newman Mining. That is the decision which is extracted at paragraph 21 of the AWU's submissions.

PN800

Can I just pause to note this about that case: in that case the Commission was at fist instance considering whether a drill rig was an engine within the meaning of the FEDFA rule or whether it was a different type of machine. The FEDFA case below was that because the drill rig had an engine, it was an engine within the meaning of the rule. Now, at first instance on the evidence the FEDFA lost and it was found to be a drill machine, and therefore not covered by the rule.

PN801

When the matter went on appeal, the first thing the Industrial Court did was to find that the appeal was not competent because it went to matters of fact, but it's in the context that the passage from Burt CJ - which is relied upon by the AWU - was made and in my submission it is a, with respect, relatively obvious observation that not every piece of machinery that has an engine is an engine within the meaning of the FEDFA rule. Aeroplanes have engines and motor cars engines; neither of those are the types of engines which are the subject of that part of the rule.

PN802

That fairly obvious observation is not to the effect that the prior decisions which have held that the phrase 'all classes of engine drivers encompasses plant' are wrongly decided. That's not what the Chief Justice was saying and can I make good that contention by reference to some authority. I ask the Commission to turn up tab 1 of the CFMEU's bundle of authorities. It's a decision from 1990, again of the Western Australian Industrial Court. It's a matter involving the Builders Labourers Federation v CFMEU.

PN803

If the Commission turns to page 1657 - and this is in the judgment of Rowland J - at the top of left‑hand column you will see the very same extract from Mount Newman Mining. Then can I commend to the Commission each of the paragraphs after that extract, all the way to the top of the other page. I should say that Kennedy and Nicholson JJ agreed with Rowland J's judgment there, but in my submission that passage expressly rejects the contention that Mount Newman Mining is authority for the proposition that the phrase 'an unlimited class of engine drivers' should be read narrowly or strictly. Indeed, in 1990 the Full Court of the Western Australian Industrial Court was noting that it was too late in the day to say that the FEDFA could not cover plant operators.

PN804

Now, can I come to the next decision, which is behind tab 13 of the bundle. This is a decision of Hungerford J in the New South Wales Industrial Commission in Sydney Coal Lumpers. This is another one of the cases that my learned friend says has been overruled. Importantly, his Honour cited the FEDFA Registration Case [1958], with approval and in particular the expanded definition of 'engine'. You will see that at page 269.

PN805

Importantly, at page 270 - and the relevance of this will become more apparent as I develop the submissions - I should say that Sydney Coal Lumpers concerned a coal loading machine at a port, but at page 270 what his Honour did was accept that the control room assistants - so not the people operating the machinery, but the assistants in the control room - were workers attending an engine or assisting the work incidental to an engine.

PN806

In my submission, that becomes relevant for some of the classifications that we'll come to in due course, but there was no suggestion from his Honour that the attendants part of the rule, which is in the second part of the rule, was to be read in a ejusdem generis sense such that the attendant or the incidental worker had to be a fuel man or a greaser or something of that type.

PN807

Now, one of the loose decisions that I included with the bundle is a decision of the Western Australian Industrial Relations Commission in the CFMEU v Kemerton Silica Sand, a decision of McKenna C. At paragraph 4 of that decision, Commissioner, the Commissioner described the nature of the dispute between the parties.

PN808

THE COMMISSIONER: Sorry, Mr Massy, where will I find this decision?

PN809

MR MASSY: So that was one of the two loose cases that I handed up with the bundle. It is the A4‑sized case.

PN810

THE COMMISSIONER: All right. Go on.

PN811

MR MASSY: At paragraph 4, the Commissioner described in summary form the nature of the dispute. He said the four employees who were operators and the nature of the work that they performed. They were involved in the operation of a dredge, mobile equipment including a front loader and an integrated tool carrier and working in a processing plant.

PN812

If you come forward to paragraph 11, Commissioner, you'll see the now familiar submission made by the employer that Mt Newman Mining meant that the employees were not eligible to be members. Then at paragraphs 12 to 21, the Commission disposed of that argument including by paragraph 15 and 16 and citing the decision of the New South Wales Full Bench with approval and also the decision of Justice Hungerford with approval. Then at paragraph 17 noted that the Full Court decision which I've just taken your Honour to, the Commission to, in respect of the BLF and the CFMEU. Then some other authority and importantly, in my submission, there's no suggestion there that any of those cases have been overruled or no longer accurately reflect a position in respect of (indistinct) rule.

PN813

I don't need to take the Commission to this, but behind tab 5 you'll see a decision at first instance of Industrial Commissioner Hardigan in the Queensland Industrial Relations Commission in Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union. At paragraph 164 the Commissioner cited the decision of Federated Engine Drivers' & Fireman's Association of Australasia with approval and found that a bobcat skid steer was plant which fell within the engine driver's rule.

PN814

That decision was upheld by President Davis in the Industrial Court. Again, I won't take the Commission to it, but at paragraph 108 there's a summation of the contention put by the appellant. Then at 109, President Davis also cites the approval in FEDFA v Association of Australia. Importantly at paragraph 114, his Honour observed that such a reading of the rule was consistent with the words of expansion which were an unlimited number of all classes of engine drivers. In my submission, those are words which cannot be overlooked.

PN815

The final matter that I should take the Commission to, is a decision of the Full Bench of this Commission in Abbott Point Bulk Coal Pty Ltd v State of Queensland. That is the A3 sized decision that I've handed up. Then if the Commission comes forward to page 286 and 287, you'll see there is the recitation of the AWU submission, but can I tell your Honour, that all explain that one of the points raised in the appeal by the AWU was whether or not the FDFA was entitled to enrol coal loading operators. But the important part of the decision is that at page 287, the Full Bench cites the decision of Justice Hungerford with approval, and in turn, the decision in the FEDFA v Australasia Coast District, a decision that I've taken the Commission to. Over the page at 288, in the middle of the page, there is an acceptance that the FEDFA rule was broad enough to cover working relations of coal loaders in Queensland and the conclusion is expressed on 289.

PN816

But in my submission, far from those earlier decisions of the Full Bench and Justice Hungerford being (indistinct) overall my learned friend says they have been continually applied for a very long time now. Can I just remind the Commission of this matter, which the Full Court tells us in Federated Tobacco Workers Union of Australia v AMWU which is behind tab 9 of the bundle. At the bottom of page 216 the court which was comprised of Justices Northrop, Grey and Ryan, the penultimate line - - -

PN817

THE COMMISSIONER: Which page was it?

PN818

MR MASSY: 267.

PN819

THE COMMISSIONER: Yes.

PN820

MR MASSY: I note in the middle of the paragraph that if the contentions of the Tobacco Worker's Union were correct, it would mean that the employer was not bound to accord wages and conditions in the Metal Industry Award. The last sentence:

PN821

Reconstruction of an eligibility rule having such drastic results should not be adopted unless than language of the rule compels it.

PN822

I should say that the sentence before that as well, is relevant, where they say that the longstanding acceptance of a legal position would no longer apply and you shouldn't depart from that unless the rule compels it. In my submission, that's precisely the position that we're in today in 2022, is that the construction of the FEDFA rule which the CFMEU contends for and the CEPU contends for, have been long adopted. Nothing in the text of the rule would compel any departure from that.

PN823

Now my learned friend points to the Full Bench's recent decision in CFMEU v Dulux. As I read that case, it has nothing to do with the question of the proper construction of the rule. In Dulux, the question was whether an employee who drove a forklift for a great deal of the employment was a forklift driver, or whether that was just a tool that they used in some other job. But the Full Bench there was not concerned with the proper construction of the FEDFA rule or what types of equipment it extended to.

PN824

Again, there's also reliance, as I understand it, placed on the Full Court and CSBP. Again, CSBP was concerned with a different question and that was whether the chemical production plant which happened to use electricity was a machine which there were workers working incidentally to. But that is of no relevance to this question, and this question is whether the CFMEU can cover plant operators and for the reasons that I've just developed, that question is undeniably yes, in my submission.

PN825

Now, if the Commission is with the CFMEU and CEPU on that point, that is sufficient to dispose of the question for the purposes of section 987(5)(a). When you add up the plant operators, there is far more than a majority with the other workers which are conceded by the AWU. But out of an abundance of caution, can I quickly deal with the second contention advanced by the AWU, that the CFMEU cannot cover the various workers who are described as either form workers, concrete finishers, concrete float hand or concrete gang workers.

PN826

Can I just start by noting that in the second tranche of cross-examination of Mr Priem, my learned friend - - -

PN827

THE COMMISSIONER: If we just go back a step, I don't know if I've missed something, but isn't the argument to the effect that because it's an occupational rule, they're not plant operators - that's not why they're employed. Isn't that what the AWU is arguing here?

PN828

MR MASSY: Well, that's not, in my submission, what that passage of the submissions I just took the Commission to. As I say, those cases have been overruled.

PN829

THE COMMISSIONER: Okay.

PN830

MR MASSY: The evidence of Mr Priem in his supplementary statement is this is the only purpose for which they're employed. It's to drive specialised plant. There was no suggestion here that those employees have been engaged for some sort of multi-skilling or to do other roles. They've been employed for the purpose of driving plant. There was no challenge to that evidence. There was no cross-examination on that point. There was no suggestion that these workers are going to do something else. They are being employed with the job title of plant operator for the purposes of driving that plant, is Mr Priem's evidence. Under no circumstances, there is no basis to depart from that.

PN831

I should say in my written submissions, I won't take the Commission to it, I've given the extract from the Federated Tobacco Workers, where the Full Court says that a person doesn't have to do this exclusively, it just has to be their major activity that they engage in. On the evidence, there's just no basis to say this isn't the case. But as I apprehend it, where one looks at the way in which the AWU have analysed the various classifications, they have excluded any classifications which involve the operation of plant, because they say that the CFMEU rule doesn't extend to plant.

PN832

They have accepted that the crane operators and the excavator drivers and those explicitly mentioned in rule 2(E)(a) are entitled to be represented by the CFMEU. So, in my submission, if the evidence is good enough to grant a finding that those people are being principally employed in the role of excavator driver, or crane driver, then the same evidence about the plant operators is sufficiently good. But can I just move now and to the question of the concrete workers?

PN833

THE COMMISSIONER: Yes.

PN834

MR MASSY: My learned friend, in the second part of his cross-examination of Mr Priem, put to Mr Priem that when he was cross-examining him about the station work, that the construction of the stations involved the construction of a building which had a roof and a structure and Mr Priem agreed with that. If that is the case, then the concrete workers would be eligible under rule 2(B) of the CFMEU rules because they had to be involved - they are the type of (indistinct) worker who is involved in the construction of a building. Can I just give the Commission a reference to the High Court's decision in the R v Marks? I don't have the citation now, but there's a lengthy discussion about what is building work in that context and there's a question as to whether the building of a communication tower was a building.

PN835

But in this case, the evidence that my learned friend elicited by Mr Priem was that the stations would involve the construction of a structure with a roof in which people will be housed in, even if temporarily. In my submission, that is sufficient to answer the description of a building. But putting that to one side and just focussing on the way in which the CFMEU and the CEPU have originally put the case for the evidence. That is in reliance on rule 2(A)(a)(i). I've extracted that, Commissioner, at paragraph 27 of the written submissions. Sorry, at paragraph 26, I'm sorry.

PN836

Before I go on, Commissioner, my learned instructor gives me the citation of the R v Marks [1981] 147 CLR 471. Turning back to the rule which is extracted at paragraph 26. Can I start with the observation that this is an occupational rule as well? It is not dependent upon the industry of the employer. It was considered by a Full Court of the Federal Court of Rescrete v Jones. I won't ask the Commission to turn that up, but Rescrete v Jones considered the question of whether persons who worked at a plant which made precast wares, boxed culverts and bridge planks, were involved in the preparation and/or erection of a similar composition to terrazzo.

PN837

The Full Bench of this Commission held that terrazzo was comprised of sand, cement, sand, water and stone particles and concrete was comprised of sand, cement, water and aggregate. In those circumstances, it was of a similar composition, so therefore, those workers who were involved in either preparing or erecting concrete, were covered by the rule. The employer sought constitutional writs and the matter was dealt with by the Full Court of the Federal Court. At 27 and 28 of the written submissions, I've set out an extract from the judgment of firstly Justice Beaumont and then Justices O'Connor and Law. The Full Court had no difficulty with the proposition that in those circumstances, concrete was a similar composition and therefore the workers were caught by the terrazzo rule.

PN838

Can I say there was a challenge to the correctness of Rescrete v Jones in Enco at both first instance and in the Industrial Court, the challenge was rejected. I should say there was an appeal to the Queensland Court of Appeal which is presently reserved, and that is one of the issues raised. No issues about the FEDFA part of the rule were raised in the subsequent appeal. But importantly, none of those decisions were dependent upon the employer's industries. Indeed, Enco involved making bridge bands which were used in civil construction and indeed, that was part of Rescrete's business as well.

PN839

But here, there can be no doubt that the concrete workers will be involved in the erection of concrete, which is a similar composition to terrazzo. Now, again, there's a contention that there's insufficient evidence as to what their occupation would be, but Mr Priem has addressed that and said that they will be employed in the role and to perform those duties. There's no suggestion that they're going to be performing multiple different roles, but what my learned friend seeks to do, is to say that because the role is in service of the employer's business of building a light rail project, and they're not really engaged in the occupation, they're engaged in the industry of light rail. But that confuses, in my submission the question of the employer's industry with the employees' occupation.

PN840

The Full Court tells us you're to determine the occupation by looking at the major and substantial employment that the employees perform, and in this case, it is laying concrete for the building of stations at a light rail facility. Nothing in Dulux or CSBP is contrary to that.

PN841

Can I very quickly, in those circumstances, go through the schedule to the AWU's submissions so that I can indicate for the Commission in light of that survey, who it is that we say is eligible? At page 257 of the court book, assuming that there will be 365 workers, only 183 workers need to be eligible and the AWU concedes 140. If we start at item 12, first two are concrete workers for the reasons I have just explained, they are eligible. Item 14 is the heavy plant spotters. In my submission, a spotter in those circumstances is a person who is either attending and engine or working incidental to the work of the engine, and consistent with the decision in coal lumpers would be eligible.

PN842

Then at 17, we have heavy mobile plant. For the reasons that I've explained, that they are covered. I'm sorry, I should say 16, my learned instructor points out, again, is subject to the terrazzo rule. Then we come over to road roller and you'll see there that we're told that that doesn't apply, despite that having been an original award, or an award in 1968, I should say, the original award. Plant operator again at 21. A dogman or rigger again are workers who are either attending the crane or working incidental to the crane. I should say, if there's any doubt as to the proper construction of that second part of the FEDFA rule because there's some ambiguity, it's permissible to have regard to the industry rule in rule 3F and that makes plain that it is attendance to cranes, forklifts and engines of that kind.

PN843

Then as we come through, the balance of the circumstances in which my learned friend says a person is not eligible, are all, in my submission, plant operators and when they are taken into account, there is more than sufficient to move past the 50 per cent plus one. Under those circumstances, the Commission should have no difficulty in accepting that the requirements of 187(5)(a) can be met.

PN844

The third contention concerning the public interest, noting Mr Follett's address, might address that in writing. I don't need to say anything about that. So, in my submission, the requirements of 187(5)(a) can be met. The requirements of 187(5)(b) can be met and in those circumstances, the agreement should be approved.

PN845

Unless the Commission has any questions.

PN846

THE COMMISSIONER: Thank you Mr Massy. Mr Gibian.

PN847

MR GIBIAN: Thank you. I'll address the three issues. In turn I didn't - we don't make any submission in relation to the identification of the authority of the employer for the signature purposes. Firstly, as to whether the agreement was properly made, the provisions of the Act would be familiar to the Commission. Section 172(2)(b) requires a greenfields agreement must be made with a relevant employee organisation. That, according to the definitions in section 12 is that an employee organisation registered under the Registered Organisations Act and that such an agreement is made or a greenfields agreement, sorry, is made for the purposes of 182(3), when it is signed by the employee and each relevant employee organisation that it is expressed to cover.

PN848

Now, the circumstances here are novel. They are distinguishable from the - certainly the 586 cases and also from AWU v Leighton. Certainly the 586 cases and also from AWU v Leighton, they are, and don't appear to have been considered in earlier cases. They are that John Holland commenced bargaining for a greenfields agreement, basing on the correspondence on 20 and 21 October, and that's at page 167 to 170 of the court book. It was separately addressed relevantly to you, or the ETU Queensland and Northern Territory - CEPU Electrical Division at page 167. Then at page 169 to the Plumbing and Pipe Trades Employees Union, Queensland Branch.

PN849

Commissioner, you've referred to the evidence. The bargaining meetings occurred as Mr Smith's described, involving separate representatives of both of the ETU and the Plumbing and Pipe Trades Employee's Union. The outcome of that bargaining was that the CFMEU and the Plumbing and Pipe Trades Employees Union agreed to the terms with the company. The AMWU subsequently got on board as well. But before the agreement was made and signed by those organisations, John Holland was informed and aware that the ETU offered its membership, did not agree to the terms. Mr Smith, or someone within John Holland, then formulated the agreement for signature, as you said. That included indication at clause 1.1.4 at page 6 of the court book, that the agreement would cover the CEPU Plumbing Division, Queensland.

PN850

The signature page which commences at page 83 and goes to page 86 was prepared by Mr Smith and indicated that at the top of page 85 of the court book, that Mr O'Halloran was to sign as Divisional Branch Secretary of the CEPU Plumbing Division Queensland & Northern Territory Divisional Branch as authorised to sign this agreement on behalf of the CEPU Plumbing Division. That was who it was understood by John Holland in the circumstances in which the ETU had said it did not agree to the terms that Mr O'Halloran was being asked to sign.

PN851

The circumstance then is not merely one as it was in Leighton of whether the individual who had signed had authority under the interim rules. It is more fundamental that the agreement was not made and did not purport to be made with a registered organisation at all, contrary to the requirements of section 172(2)(b). In addition to that, we've set out an extra from the relevant rule, in our submissions, at page 242 of the court book, paragraph 6. Mr O'Halloran didn't, and nor did he purport to sign on behalf of the CEPU as a whole, in circumstances which the agreement, it was well understood would have implications or would affect members beyond the Plumbing Division, mainly those within the Electrical Division, the ETU having been incorporated in the negotiations.

PN852

In those circumstances, no greenfields agreement was made, because it was not signed with the organisations it purported to cover. Even if it was, Mr O'Halloran didn't have authority to execute the agreement. Now, as we understand three matters are raised against that. The first is - - -

PN853

THE COMMISSIONER: Sorry, I'll just go back. Your primary submission is there is no agreement?

PN854

MR GIBIAN: Yes, it wasn't made. The first basis upon which that is sought to be - that outcome is sought to be avoided, is by reference to either a concept of apparent authority that everyone actually believed that despite the ETU having advised that John Holland, that it didn't agree with the agreement. In fact, everyone thought that Mr O'Halloran was speaking on behalf of the whole of the CEPU and had apparent authority to do so. Or that one should construe the words, and I'll read them again. This was Mr Massy's submission. One should read the words that appear at the top of page 85 of the court book:

PN855

I, Gary O'Halloran, Divisional Branch Secretary of the CEPU, Plumbing Division, Queensland and Northern Territory Divisional Branch, am authorised to sign the agreement on behalf of the CEPU Plumbing Division.

PN856

As being, in the circumstances in which everyone was well aware that the other division of the CEPU did not agree. One should read those words as saying no, actually, he was intending to, and everyone understood that he was signing on behalf of the CEPU as a whole. It's obviously not a conclusion that anyone could possibly reach in the circumstances that transpired at that stage. The obvious intention of Mr O'Halloran, and the obvious understanding of John Holland was that Mr O'Halloran was signing only on behalf of the Plumbing Division.

PN857

As to apparent authority, whether generally or in reliance upon section 793, apparent authority could not be relied upon in the circumstances here, where, as I have said, negotiations would be conducted separately with the Plumbing and like trades employees' union and the ETU. John Holland addressed and understood it was negotiating correspondence with two and understood it was negotiating separately with both Mr O'Halloran who purported to sign only on behalf of the Plumbing Division and John Holland was on notice at that very time and prepared the signature page and the coverage provision entirely on the basis that it understood the electrical division did not agree.

PN858

It's plain that that is a distinguishing feature from the circumstances in Leighton. Can I just refer to those briefly? Sorry, this is tab 2 in our bundle. The Commission may have been taken to a different bundle. Can I just note in that respect that from paragraph 82 in Justice Katzmann's judgment, section 793 was dealt with? That section is set out at paragraph 83 at the bottom of page 209 of the report which as the Commission will no doubt be aware, provides that the Body Corporate is taken to have engaged in conduct or where that conduct is undertaken on by relevantly an officer. Then in subsection 1(b), and the person - sorry, subsection 1(a), the officer acting in the actual or apparent authority.

PN859

THE COMMISSIONER: Sorry Mr Gibian, which paragraph in the decision?

PN860

MR GIBIAN: Sorry, starting at paragraph 82 at the bottom of page 209.

PN861

THE COMMISSIONER: Yes, okay.

PN862

MR GIBIAN: Relevantly subsection 1(a) right at the bottom of that page, refers to conduct engaged in by an officer, employee or agent of the body within the scope of its actual or apparent authority. So, we've dealt with actual authority. Apparent authority, obviously depends upon the circumstances of the case. But can I just note the basis upon which apparent authority was found there. Paragraph 88 on page 211, her Honour set out:

PN863

There is no doubt that Mr Close signed the agreements on the union's behalf, as it did so in the course of the affairs or activities of the CFMEU. Although the purportedly signed them on behalf of the Divisional Branch, the evidence was that this was an error and the AWU appears to have accepted that. The negotiations were conducted on the CFMEU's behalf. Mr Close's signature is placed on the agreement to certify its consent, not or not only the consent of the Divisional Branch.

PN864

That's, for the reasons that we explained, not a conclusion which is available here. There's no suggestion, much less evidence from Mr Massy's clients. There's no evidence, nor could there possibly be, in the circumstances that existed were made plain that Mr O'Halloran was not signing on behalf the CEPU as a whole and that the ETU did not, in fact, agree at all.

PN865

I don't need read it, but right at the bottom of that page, in paragraph 91, there's a reference to, reliance was placed there by the AWU on the absence of actual authority. Right at the bottom of that page, or sorry, three lines up, her Honour said:

PN866

It is no answer to the proposition that he had apparent authority to show, but he had no actual authority. Moreover, the relevant time for determining whether Mr Close had the authority was when he signed the agreements, not when the AWU raised the issue. At that time, no one had notice of the issues; certainly not the other parties to the agreement.

PN867

Again, that's not the circumstance here. All parties were on notice and well aware that the ETU did not agree to entering into the agreement.

PN868

The second basis upon which the conclusion that the agreement was not made, is sought to be avoided, is by way of a correction or amendment under section 586. Reliance is placed upon authorities which are said to allow amendments to a signature page of an agreement in reliance on the powers of the Commission under section 586 to permit amendments. I need to find the case again, because it was one of those that was emailed to me. Mr Follett referred to the decision in - I think he handed up in CFMEU v Griffiths Cranes Pty Ltd - sorry I'll just find it.

PN869

I just note, and I think it was accepted that all of the decisions relied upon in this respect were in relation to regular enterprise agreements, not greenfields agreements. That is, agreements that had been made by way of a vote of employees. The defect that was sought to be rectified was as to the requirement in section 185(2) that the application be made in a form, dictated by the regulations, namely that it be signed by or on behalf of the employer and the employees.

PN870

So, there was no question that the agreement had been made in any of those cases. It was a formal requirement in terms of the satisfaction of the regulation. That's made clear in Griffiths Cranes. Can I just note the passage from paragraph 41 and following, where on page 12 of the print, where it was said:

PN871

The scheme of the Act as we have described above mandates that once an agreement has been made under s.182(1), a bargaining representative for an agreement must make application to the Commission for its approval within the prescribed (or extended) time. The requirement in s.185 that an application for approval of an agreement be made within 14 days is in our view a clear signal that the legislature intended that once an agreement is 'made' it must come to the Commission for consideration of approval. An application for an approval is to be made in accordance with the Act. But an application that is unaccompanied by one or more of the instruments required by s.185(2) (or in the case of a signed copy of the agreement that does not meet the requirements of reg 2.06A) is an application that is not made in accordance with the Act.

PN872

That makes clear that what the Commission was dealing with there was an agreement which had been made. The legislative structure which dictated that an agreement which had been made or properly come before the Commission for consideration and merely a non-compliance with the signature requirements dictated by the regulations. That's further elaborated on paragraph 42. I don't need to read it. Then can I note at paragraph 45 that a supportive consideration in favour of permitting the amendment to the formal requirements or waiver of the irregularity was that the statutory purpose of requiring a bargaining representative to apply for approval, is that an agreement made is not to be treated as a nullity merely because a bargaining representative could not comply with the formal requirements in 185(2).

PN873

None of that reasoning supports the proposition that there can be an application in relation to an agreement which had not been made and that it would be the subject of rectification or amendment under section 586. Now, I'll come back to Mr Setches later signature, in a moment.

PN874

Before I do, the third basis is that is sought to be relied upon is ratification and there's reference to ratification again in Leighton and I think Mr Follett went to paragraphs 96 and 97. I don't need to read it again. The circumstances that were said to give rise to ratification in that context in paragraph 96, were circumstances in which an agent, an unauthorised agent had purported to execute an agreement on behalf of the principal and the principal could subsequently ratify that conduct.

PN875

The difference here is that, for the reasons I've canvassed, Mr O'Halloran did not purport to make the agreement on behalf of the CEPU, nor was he understood to attempt to make the agreement as an agent. If he had done so and the sole defect was one of authority which was the circumstance found with Mr Close in Leighton, then the principal ratification would be capable of application. It does not allow ratification of something which was never purported to be done in the first place. Mr O'Halloran did not purport to sign the agreement on behalf of the CEPU as a whole. He purported to do so erroneously, as on behalf of the Plumbing Division, no doubt because the circumstances were that the other relevant division of the CEPU did not, in fact, agree.

PN876

That leaves solely the question of whether the agreement was subsequently made by being signed by Mr Setches on 8 April, that signature page being at page 389 of the court book. That would mean that the agreement was made after the application for its approval was made and fundamentally the application the Commission was currently dealing with is the application to approve the agreement made - I have to find the date - in March, it's the 1 March, I think, the initial application was made and at that point, if reliance ultimately has to be placed upon the signature by Mr Setches which would, in our submission it would, it's an application made after - sorry, an agreement made after the application for its approval, and the proper course would be to make an application for approval of that agreement if that is what is said to be its content.

PN877

No submission in writing had been advanced to this effect, but Mr Follett did say today that 586 could be relied upon to, presumably 586(b), to waive any irregularity in permitting an application to be made. Waiving the irregularity of an application having been made before agreement to which it related. I'm using the word made too often there. For an application to be filed in the Commission prior to the agreement having in fact been made. I don't know any authority was relied upon. Certainly, no precedent for that having occurred in the context of a greenfields agreement or enterprise agreement of any other nature. It would be very surprising if that were permitted to occur. It would have a whole range of consequences, one of which is the time for considering whether or not in fact, it was a greenfields agreement would change, that is it would be now 8 April rather than February, the 22 February. This would require evidence going to that date and an examination of whether in fact it was a greenfields agreement as of that date.

PN878

It initially occurred to me as unlikely that would be permissible. Can I just - in that respect, I don't want to mislead you Commissioner. It is a decision of the Full Bench in the matter of Mihajlovic v Lifeline Macarthur (2014) 241 IR 142 in relation to an unfair dismissal application which had been made before the dismissal took effect. The Full Bench accepted in that instance that was potentially - it wasn't a valid application but it was an irregularity that was potentially capable of being waived under 586(b) in that context. As I say, I'm not aware of any consideration having been given to whether that would be possible in the case of an enterprise agreement, but that is an application for approval having been filed before it was in fact made.

PN879

Given it would change the whole of the dynamic of the consideration the Commission is required to make, we would say that even if it were available, the Commission would not permit that, or would not grant that or waive the irregularity in that respect. The agreement should be made and further application should be made, if that's the course that the other parties choose to adopt.

PN880

Unless there's anything further.

PN881

THE COMMISSIONER: Well, did you want to say anything on - see, I mean on that submission, the agreement is made in April, not earlier.

PN882

MR GIBIAN: Yes.

PN883

THE COMMISSIONER: And you've got a situation where the division, the Electrical Division said they don't want to be covered, but the effect of that is because the national official signed that overrides that desire.

PN884

MR GIBIAN: I think we accept for the purposes of their rule that the national official had the authority to sign on behalf of the union as a whole.

PN885

THE COMMISSIONER: Okay.

PN886

MR GIBIAN: That only happened on 8 April. We don't know how that came to pass, but I can't suggest that we have any basis to believe that the National Secretary didn't have capacity to do that.

PN887

THE COMMISSIONER: No.

PN888

MR GIBIAN: The difficulty with Mr O'Halloran was both that he didn't purport to make the agreement, he never purported to make the agreement on behalf of the CEPU as a whole. He only ever purported to do so for the Plumbing Division, for the obvious reason that the other division, the ETU was affected and did not agree and he didn't accord with the rules to have authority to enter an agreement which affected members outside of that division.

PN889

THE COMMISSIONER: Just so I understand, the effect of your submission is, if I was to find that there was no agreement at the time of filing, but that there was an agreement in April, your submission is that there may be a capacity - if there is a capacity to exercise power to waiver the irregularity, I shouldn't exercise it?

PN890

MR GIBIAN: Yes. Because it changes the whole - I mean indeed, the case was in preparation - well, we interpolate from the timing that Mr Setches ultimately signed, the signature page was sent with his signature on it in response to our submissions in the very proceeding, that would be the objection, at least, that was made prior to that and for the whole of the context of the proceeding that was already half way through preparation to be upended, is not appropriate, if that power exists. As I say, I'm not aware of that ever having been considered. I have drawn attention to the fact that an application before dismissal was - I think it was admitted as to whether to exercise - I think the question as to whether to exercise the power to waive the irregularity in that case was remitted, but there was acceptance that there was a capacity to do it in the unfair dismissal context, at least, I accept, and it's appropriate I draw attention to that, since it was within my knowledge. I don't know that it's happened in the enterprise agreement context; no one else has suggested it.

PN891

THE COMMISSIONER: There can always be a first I guess.

PN892

MR GIBIAN: I suppose there can. For the reasons that I've given, we don't - well, we think it would be inappropriate, particularly in a Greenfields context, where much turns upon the date that the agreement was made, or potentially does. It may be that further investigations or investigations would have needed to be done, and in addition to the fact that the timing occurred. That was done midway through the preparation of the case.

PN893

Unless there's anything further on that point, can I turn to the majority coverage issue? The question that is posed by section 187(5)(a) is that the unions taken together that to be covered by the agreement must be able to represent the industrial interests of the majority of the employees who will be covered by the agreement, in relation to work performed under the agreement.

PN894

Can I make three initial observations in relation to that requirement? It is an important limitation on the capacity to make greenfields agreements. The greenfields agreements are obviously enough a departure from the usual approach which requires that bargaining occur and a vote occur, involving employees who are to be covered by the agreement, at least so far as they are employed at the time. Section 187(5)(a) provides some protection to the employees who will in future be employed, but have no opportunity to participate in bargaining for the agreement that will apply or not at least for some period of time to their employment. And it is expressed by way of a minimum coverage requirement presumably with the intent of ensuring that the organisations involved in the negotiation of a greenfields agreement and its making have a responsibility to represent the industrial interests of at least a majority of the employees who will in future be affected by it.

PN895

The assessment of the entitlement to represent is one that will necessarily be speculative to a greater or lesser degree. Evidently no employees are employed at the time that the agreement is made and most likely when the Commission comes to consider its approval. Ultimately the question posed is whether the Commission can be affirmatively satisfied that the requirement is met. There must be material before the Commission to permit a positive answer to the question that is posed by section 187(5)(a), that is, it must be satisfied that the relevant employee organisations that will be covered by the agreement are entitled to represent the industrial interests of the majority of those employees.

PN896

If the state of the evidence - there is two things that flow from that. One is it's certainly not for the AWU, in the context of this matter to prove that the requirement is not met. It's not a question of onus in the context of this proceedings and any the strict sense, but nonetheless, there must be material before the Commission sufficient to satisfy that the majority coverage requirement is met. And it may be that there are cases, or taking a step back, there may be cases where the knowledge that anyone has, employer or anyone else, as to the types of employees and their numbers to engage in a particular project or undertaking, is not sufficiently developed that anyone can say with any certainty, as to whether the majority coverage provision will be met.

PN897

Now, it's not a difficulty that would arise in circumstances in which the unions that are party to the - or that are involved in the making of the greenfields agreement cover everyone who could potentially be employed under the agreement. If that were the case, then in a sense, one doesn't get to speculation as to what numbers in what categories of employees would be engaged on a project. But where there is a range of classifications capable of being covered in an agreement, which on everyone's case fall outside the coverage of the unions that are party to, and will be covered by the agreement, if there's not sufficient certainty on the material before the Commission as to the composition and numbers of the workforce, to satisfy it that the majority coverage requirement is met, then the Commission must refuse to approve the agreement.

PN898

The third initial observation I was going to make in relation to this requirement is that the submissions of John Holland in writing and Mr Follett today referred to the approach of Deputy President Coleman in Watpac, that the question referred to actual employees who would be employed. Watpac was the subject of an appeal and the decision is reserved at the moment and there was an argument in relation to that point specifically. In our submission, the correct approach is not one or the other. That is the Commission must have regard to such evidence as there is, as to the class of employees that may be employed, and the potential coverage of the agreement, and taking all of those matters into account, consider whether it can be satisfied that the organisations to be covered, will have an entitlement to represent the majority of the employees concerned. It's not one or the other and certainly the argument on appeal in Watpac was that, with respect to Deputy President Coleman, erred in only limiting his consideration to the employees that the company said it would initially employ under the agreement.

PN899

THE COMMISSIONER: So, are you submitting I should reserve until the decision is made by the Full Bench?

PN900

MR GIBIAN: I wasn't specifically making that submission, no, Commissioner. I feel it appropriate though, to raise that that issue is being considered by the Full Bench, and presumably, it will hand down its decision at some point. I think it was heard in April at some point. We can check the precise date. Obviously, it's a matter for you, Commissioner, as to whether that decision ought to be followed or not.

PN901

THE COMMISSIONER: Yes.

PN902

MR GIBIAN: Can I then deal with briefly, the evidence. John Holland primarily relies upon the numbers given, as we understand it, in the first statement of Mr Priem. We do say that there are a number of fundamental difficulties, even given his attempt to defend them this morning with the reliance upon the figures given in the table and Mr Priem's affidavit - sorry, statement, at paragraph 13 on pages 132 to 135 of the court book. The difficulties will be apparent from the evidence that was heard this morning.

PN903

Firstly, the numbers are based upon a general estimate of the proportion of work it is said would be out-sourced, rather than any particular assessment as to which work will or will not be out-sourced. Mr Priem's evidence was that that is a matter that they will consider, depending upon availability of labour, availability of equipment, as the project went along. There may be more; there may be less, and they may contract out different works than were expected, depending upon those considerations. All of those matters would upset the number of employees said to be forecast in the tables at pages 132 to 135 of the court book.

PN904

Secondly, the numbers - despite what was said both in paragraph 13 and in the header of the table on pages 132 to 135, which referred the number of employees forecast to be employed. When one went to the annexure AP1 at pages 136 and 137, what is plain from those is that it's not the number of employees at all, it is FTE employees. Now, Mr Priem's evidence, with the greatest of respect, was fatally unclear as to how that would work out. In initial cross-examination, his evidence was that the FTE figure was the average full time equivalent work undertaken for each of the work packages, and I asked him by way of example about stations, that was required for the period of works in that work package.

PN905

So, for the period works were done in relation to stations, he said it would FTE 15, FTE on average required for that period. Now, he was unable to say what that period was, whether it was two weeks or 20 months, over the whole period. Obviously, that affects the number of employees that are being considered. He also accepted that there would be a variation within that works period and work intensification. That is, for half the time, you might need 20 employees and for the other half, you'll need two. Obviously, that means there's not 15 employees employed, but rather, 20, if in that period there's a greater intensity and that number of persons is needed in that period of time.

PN906

Now, what that means - and he agreed that that would apply to all of the other work packages and all of the other classes of employees as well. That means that one can't know whether one FTE means one person or five people, in a particular case - 14 people. Which means that the numbers that he's given on his evidence in cross-examination, initial cross-examination, are entirely unreliable, if one is looking at, which section 187(5)(a) says one must, at the employees who would be covered.

PN907

In re-examination, he endeavoured to say, or did say that the total number of employees who would be employed, would actually be less than the FTE numbers. We still don't understand how that could possibly be the case. Taken to the example of the concrete gang, which he said would have two FTE, and indeed, there would be two concrete float hands, FTE, he accepted that there would be, when the stations on the example I was asking about were being constructed, teams of 10 to 15 workers. Now, he said they might be drawn from a range of classifications. He couldn't say now which ones those would be and which ones they would not be. The only other ones he mentions were labourers and concrete finishers. There's only 11 concrete finishers for the whole project on an FTE basis as well.

PN908

Clearly, there would be, in many of the categories, need to be, because of the fluctuations of work intensity which were averaged out on the FTE calculations that Mr Priem undertook, significantly larger numbers. We don't really understand how that could produce a lower number of total workers overall for the whole of the project, than the total number of FTE's. Perhaps that doesn't even matter terribly much, since it's the proportions, as Mr Follett said, the proportions that are important. What's plain from Mr Priem's evidence is that the proportions might swing very widely. That is, if there's an intense work process of any type which has to be done with a large number of employees in a short period of time, which has been averaged out by the FTE calculations he undertook, it would throw all of the proportions out.

PN909

If in fact there were required to be a 20 concrete, rather than a two concrete gang, or ended up being, then obviously, it throws out all of the proportions. It's not so much a criticism of the exercise that Mr Priem undertook, it's that doing it on an FTE basis averaged over the period of time without looking at the total employees in each category, that are expected, does not assist the task that the Commission is required to undertake for the purposes of section 187(5)(a).

PN910

In addition to that, we note Mr Priem's evidence that there were a wider range of classifications in the agreement that are not taken into account at all in his classifications, in his numbers, on the basis that he said they intend to contract certain work out. He agreed that they put those additional classifications in the agreement. John Holland put those additional classifications in to allow flexibility, at least to allow them to employ employees across the whole of those range of classifications to the extent that it proves necessary. The Commission can't ignore that matter in considering whether it is able to be satisfied that the majority coverage requirements are met.

PN911

We also say that Mr Faruqi's evidence provides an independent assessment of labour needs. We accept his evidence that obviously enough, he couldn't say what work John Holland would contract out or not contract out, and there was no option other than for him to conduct his analysis based on the total work needs. But it is nonetheless of assistance in understanding the labour needs that are likely to exist in a project of this type. No issue is taken as to Mr Faruqi's expertise in that respect. It does seem to suggest that there is somewhat of a plant heavy side of it, in the John Holland estimates, when one compares the two.

PN912

Unless there's further on those matters - the upshot is we don't think that the evidence is such as to allow the Commission with any certainty to be satisfied that the majority coverage requirement is being met, given the uncertainty as to the composition and nature of the workforce that will be engaged, and before we come to any issues of coverage provisions, is a fundamental difficulty.

PN913

Commissioner, you did ask a question about whether that was a matter of jurisdictional fact, and I think Mr Follett said it was a matter of discretion. In my understanding, at least, the correct position is, it's not a jurisdictional fact; it's a matter that is committed to the satisfaction of the Commission. That is not a discretion as such, it is the Commission is required to reach a state as to whether it can be affirmatively satisfied of that matter. It's not the discretion in some general sense that the Commission can decide to accept it or not. It is a matter as to whether the Commission can reach an affirmative mental state of satisfaction as to whether the requirement is met on the material before it.

PN914

Can I turn then to the rules issues? Even if one were to take Mr Priem's figures as representing employee numbers, which they don't, in our submission the Commission would still not be satisfied. There are two aspects of the rules that were emphasised, which I relied upon by the CFMEU. Firstly, the FEDFA rule, rule 2(E)(a). I think the rules are in Mr Massy's bundle at tab 17. At page 9 is the FEDFA rule referring to a limited number of class of engine drivers, fireman, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavators, drivers, pump attendants, pile driver, motor driver's attendants, cleaners, trimmers and other workers assisting in or and about work incidental to an engine or machinery connected to the production or utilisation of power.

PN915

Now, the only of the specifically nominated classes of workers that rely upon as we understand it, are crane drivers and excavator drivers. Now, I might say about that, that in the table that's in our submissions, we have given to the CFMEU, that would require an assessment though, of the purpose of the work which one only has the very general assertions made in the supplementary statement yesterday afternoon. But the primary issue is one of the engine drivers, whether all of the other classes nominated as various forms of plant operators, can be said to be engine drivers. Can I touch on some of the authorities in that respect, that emphasise at the outset what we say about that?

PN916

Mr Massy, with respect, mischaracterised both Mt Newman, CSPB and the area cases. In his submission, every case that is against him was decided on the facts of the particular case that was in his favour, was a case decided on the basis of universal principle. What Mt Newman and CSPB and Dulux make clear, is the assessment in each case requires one to undertake a consideration of having regard to the work that the employee, the context in which it is done, the industry in which work is done, the operations of the employer. One must assess whether the person is employed to drive an engine, and that's it. That's the approach that must be adopted. Nothing in the older cases suggests to the contrary. They were factually decided in favour of the position in the 50s that Mr Massy would want. The cases, including the Full Federal Court in recent years, would decide contrary to the position. But on the facts of each case, looking at the nature of the work, the nature of the operation, the nature of the industry, whether the person was employed to drive an engine.

PN917

Can I go to Mt Newman as adopted by the Full Federal Court in CSPB? Firstly, as to Mt Newman, Mr Massy said that the issue in that case was whether a drill was an engine. I don't understand how that is to be derived from the case. It's in our bundle at tab 6.

PN918

THE COMMISSIONER: Yes, I've got it now.

PN919

MR GIBIAN: The questions stated on the first page in the start of the first column at the commencement of the judgment of Chief Justice Byrd, is whether the workers were employed by Mt Newman Mining company as machine drillers and are eligible for membership of the FEDFA. In the middle of the second column on that same page, there's a long paragraph in the middle of that paragraph, which says:

PN920

The question for the Commission to decide was whether the work was referred to in question of engine drivers or stationary motor drivers within the constitution of the award, within the rules of the appellant union.

PN921

Then in the paragraph that commences two thirds of the way down that column, his Honour said:

PN922

It was to concede that not every worker who in the doing of the work which he is employed to do, drives an engine, is an engine driver within the meaning of the eligibility rule of the appellant union. There are today many vocations which involve the driving in the sense of the control and operation of engine which no one would ever think fell within that description. But the taxi driver, the bull dozer operator and the airline pilot may serve as the example. The question in any particular case is, I think, whether the worker is employed to drive an engine, so that he earns his wages by doing that, or that is employed to do something else. If the answer is that he is employed to do something else, then he is not an engine driver merely because he operates a machine and drives the engine of that machine, so as to do what he is employed to do.

PN923

That's the proper approach to be adopted. Not one by way of category, does the work involve a piece of machinery that has an engine, which is the approach that Mr Massy urges upon the Commission. The question is, what is the person employed to do? Are they just employed to drive an engine or are they utilising a machine with an engine for some other purpose?

PN924

Can I go then to CSBP? It's in our list at tab 3 and the Full Federal court.

PN925

THE COMMISSIONER: Sorry, which tab was that?

PN926

MR GIBIAN: Three, I think. The issue concerns certain process technicians who operate machinery for a purpose. Can I go to - the consideration starts at paragraph 39? Can I go to paragraph 44 which is at the top of page 217? There the Full Court noted that the focus of the eligibility rule is what occupations of the employees covered by it, as opposed to what the then provision allowing for industry coverage, contemplated that it might have covered, but not namely the industry in which the employees are engaged. So, also - - -

PN927

THE COMMISSIONER: Which paragraph are you reading?

PN928

MR GIBIAN: Sorry, it's 44.

PN929

THE COMMISSIONER: Thank you.

PN930

MR GIBIAN: Also means the primary purpose of the employment is appropriate. 'In applying this test, one does not focus on one aspect of the employee's work in isolation from the totality of his or her duties.' There's then reference to Mr Newman and that particular passage extracted with approval. That is the question of whether the person is employed to drive an engine, so that he earns his wages by doing that, as opposed to something else. Similarly, at paragraph 35 reference to Kristopherson, and at paragraph 46.

PN931

It's noted that the process technicians employed by CSBP perform duties more sophisticated and extensive than those contemplated by any (indistinct). However, the duties are directed not to the use of machinery for the general utilisation of power, but to be used on machinery which uses power for the production of products.

PN932

That is, what is the machine being used for was the relevant question.

PN933

As to the general approach to union rules, can I note at paragraph 48, there's reference to the traditional avoidance of a narrow or reading-down approach. But at paragraph 49, the court noted that they said one should not accede to attempts to promote exorbitant claims, which if alive, would (indistinct) the efforts of those who (indistinct) statements intended to mark out the scope of the union's coverage.

PN934

And at paragraphs 50 to 52, reliance was placed upon the industry rule as taking into account, at least in construing the specific rules, such that it was plain that it was not concerned with all occupations that operate machinery using power.

PN935

Finally, can I just go to Dulux, in which the same approach was more recently adopted. That case concerned a person who for 95 per cent of their working time operated a forklift, but that person was not a forklift driver for the purposes of the law. Same rule. The reasoning starts at paragraph 52.

PN936

THE COMMISSIONER: Which tab is this one?

PN937

MR GIBIAN: Sorry, it's tab 4.

PN938

THE COMMISSIONER: Yes. Thank you. Paragraph 52, did you say?

PN939

MR GIBIAN: Yes. The reasoning starts at paragraph 52 on page - they don't seem to have page numbers on the list. Then at paragraph 53, it was noted that the expression forklift drivers must be understood in the context of the rule as a whole as regards the history of development. It refers to the FEDFA as a craft union. Then in the final sentence, 'Accordingly, in order to be eligible to be a member of the CFMMEU, as a forklift driver, a person's employment must be able to be characterised in a way which the primary purpose is driving a forklift as a skilled occupation.' At 54, I won't read it, but right at the bottom of the page, there's similarly a reference to a role being raison d'etre of their employment.

PN940

Thirdly, at paragraph 55, the Full Bench noted that the decisions in Mt Newman and CSBP make clear that the employment in question must be assessed in the context of the purpose for which the employer has employed the employee and the employee's organisation of work. So, again, Mr Massy's submissions say well, this is an occupational craft rule, not an industry-based rule, so therefore, we ignore everything that the employee is doing. That's not the correct approach. One has to look at what role the employee plays in the organisation for the purposes of undertaking a fundamental assessment as to whether the person is employed to drive an engine simpliciter and nothing else. Then again, at paragraph 56, the Full Bench, following on from the Full Court judgment in CSBP regarded as relevant and to have regard to the industry rule.

PN941

With that background, can I then go to the table in our submissions? This is at page 257 to 259. All we have here, and we've used the same terminology that Mr Priem used and the CFMEU used, just the description of the classification title. As I say, even for the crane drivers, or the crane operators and the excavator operators, which are specific named classes of work in the relevant rule, one would have to make an assessment as to whether that was the sole purpose of the employment.

PN942

But so far as the other plant operator roles are concerned, most of them, there's no indication as to what the plant is at all. So, if on the first - on page 257, there's CW3 heavy mobile plant operator. No indication as to what that is going to be at all; the Commission doesn't know. There's just an assumption because the submission was the CFMEU's, because the word plant is used, therefore it falls within their rules. Without any knowledge of the Commission upon what that person is doing, what type of equipment is being used and clearly that claims coverage of 22 people for that purpose.

PN943

Over the page there is reference to some specific road rollers. Again, 21 CW3 plant operated terri handled. Again, no indication as to what that work would involve. Others, 27, CW5 plant operator mobile concrete boom. Again, it's unclear why that's said to be - or the nature of the work that would be involved there and no explanation has been provided. I did ask specifically about the graders which are referred to at item 35, graders. The answer that Mr Priem gave was revealing in that respect. By reference to his very generalised statement in his adopting legal language in his supplementary statement, he said, well we want specialist people.

PN944

He said the specialist skill for a grader that he wanted, was someone who was skilled in grading earth in preparation for laying of road surface. That is not a person employed to drive an engine simpliciter. That is a person who is engaged to undertake a particular task in the context of John Holland's operations here. That is, to construct a light rail line. The fact that they utilise a device with an engine for that purpose, is precisely what was said to be, as the bull dozer operator was in Mt Newman, not sufficient to bring it within the generic description of engine driver.

PN945

One considers that in the context of the industry rule, the nature of John Holland's operations and the fact that the person is employed to do a task in that context of flattening the earth in preparation of laying of asphalt for road construction. The skill that is being utilised is not simply driving an engine, which is the approach that Mt Newman, CSBP and Dulux dictate the Commission ought adopt.

PN946

Can I then say something briefly about the reliance also placed upon a spotter for the spotter and the dogman rigger, as being attendance on an engine? With respect, that's not a submission that could possibly be accepted. It was relying upon the findings in the Coal Lumper's case, that those persons who were attending to the coal lumping devices themselves were attendants. The spotters and the dogmen are not attending to the engine in any sense, in this context. We don't think that they can't sensibly be described as attendance on machines. The spotters - again, there's no descriptions being provided beyond a title as to the work that's involved, but spotters are ensuring the safety of the operation of the crane, that is that it doesn't cause danger to individuals by lowering and raising materials. How that is attendant upon a machine, we don't understand.

PN947

Now, if those classifications are out, then I think it's accepted that the 50 per cent - I was going to add in that respect, but I do note that there is specific reference in EB(2) crane chasers, dogman and riggers, separately in building construction in the immediately following subrule. Whilst it is said not to be in limitation of the earlier rules, I accept that, perhaps provides some indication as to whether it was contemplated that employees of that type would fall within the attendants, which is relied upon.

PN948

Finally, can I deal with the concrete aspects of it? That's rule A(3)(i) within the rules at tab 17. I think it is AA(3)(i). I think Mr Follett's submissions might have AA(1)(i), but whatever which way we are confused for the moment. Anyway, the reliance is upon persons engaged in the preparation and erection of terrazzo or similar compositions. That is said to support coverage of those involved in - those being concrete float hands, concrete gangs, form work labourers and concrete finishers, as I understand it. Now, I think on no one's case does that make a decisive difference on the 50 per cent numbers.

PN949

Well, perhaps I should take a step back from that. If you accept Mr Priem's numbers as being absolute, then they don't make a difference, and part of the difficulty is, and part of the reason why we say the Commission ought not be satisfied on the majority coverage requirement is that the uncertainty of those numbers. But on his numbers, I don't think anyone suggests that the concrete is decisive.

PN950

I just note though that the limitations of what was said in Rescrete. It's tab 7 in our bundle. I think the Commission may have been taken to it in someone else's bundle. The issue there on the first page of the - sorry at page 271 is provided an overview of what the issue was there. The company produced architectural and structural precast concrete and standard products and what was described as hollow core wall and floor panels. It was all work undertaken at the (indistinct) site, that is a production facility. In the middle part of 271, it was noted that the only onsite work was a supervisor contracts coordinator.

PN951

Going on, it was accepted at 279 and I think Mr Massy went to this, that three quarters of the way down that page, that the products that were made by Rescrete were a mixture of sand, cement, water and aggregate and that terrazzo was a mixture of water and sand, cement and stone particles and for that reason, the compositions were similar. About three quarters of the way down that page in the last full paragraph on that page. The question though, what was involved in the preparation - relevantly for present purposes, what was involved in the preparation and/or election of terrazzo composition.

PN952

At the bottom of page 280, towards the bottom, there's dictionary definitions of the word preparation which is set out. Then underneath those definitions it was said:

PN953

It is to be recalled that it appeared to be common ground that terrazzo is a mixture of elements that are created at the site, where it is to remain as part of the building or structure, or created as a panel which is installed into a building or structure.

PN954

It was the latter case in this instance. It is consistent with the ordinary method of preparation for it to be treated as a reference to the process of mixing the constituent elements of the terrazzo to create the material that would either remain on site or was taken to the site and installed or to use a word in the language of the law, or to use the language of the law I should say, erected.

PN955

So, there are two aspects to it that were covered by preparation or erection. One was preparing the product itself, that is mixing the constituent elements of the terrazzo or similar composition. It's not said that these workers were doing that. Secondly, they could erect it, which would occur in circumstances in which the product was made off-site, transported and then erected as made. Again, there's no suggestion that that is being done here. What is being done is concreting, at least so far as the evidence suggests, went to the subject at all. In those circumstances, that rule has no application either to the classes that are relied upon in that respect.

PN956

Unless there was anything further, that was all I proposed to say in the coverage point. I'm conscious that I've gone longer than was intended. As to the public interest point, I don't think there's a great amount I can say about it, given the evidence that Mr Smith gave about the negotiations that occurred. Whilst we don't abandon it, I'm not sure there's too much more that I can say to advance it.

PN957

THE COMMISSIONER: All right.

PN958

MR GIBIAN: Unless there's anything further, those were my submissions. Thank you.

PN959

THE COMMISSIONER: Mr Massy.

PN960

MR MASSY: Thank you, Commissioner. I'll try and deal with the issues in the order in which my learned friend raised them. My learned friend went so far as to say that the issues at point two with respect to the signing of the agreement on behalf of the CPEU, mean that no agreement was made. It's very difficult to see how no agreement could have been made between John Holland and the CFMEU. There is still a valid agreement between those two parties and my learned friend, offers no answer to the fact that the CEPU seeks in terms to be covered by the agreement, if it is not a party to it.

PN961

Can I be very clear, the primary position of the CEPU is that it has ratified the act of Mr O'Halloran as a party to the agreement, but in the event that that is not the case, it is abundantly clear that it is sought to be covered by the agreement. Indeed, if one looks at the terms of Mr (indistinct) Form 21, he says the CEPU wishes to be covered by the agreement. So, in my submission there is no basis to say that there is no agreement as a whole.

PN962

My learned friend repeatedly said the conduct of Mr O'Halloran was not undertaken on behalf of the CEPU, it was undertaken on behalf of the CEPU Plumbing Division. With respect, that fundamentally misapprehends things. The Plumbing Division is an administrative unit of the body corporate and when Mr O'Halloran acts on behalf of the Plumbing Division, he is acting on behalf of the body corporate. There is no separate legal personality attaching to the Plumbing Division. He can't act on behalf of something that does not exist. When he says I'm acting on behalf of the Plumbing Division, he is acting on behalf of the CEPU.

PN963

Now, the mere fact that a different organ of the CEPU had said at the time it didn't wish to do this, is not to the point. The agent of the body corporate has acted on behalf of the body corporate and now the body corporate has ratified that act. In my submission, that is sufficient for there to be an agreement which the CEPU has made.

PN964

My learned friend was driven to the proposition that even if the signatory of Mr Setches had the effect of making a fresh agreement, the Commission shouldn't exercise the discretionary power to the right of compliance with the requirement that the application be filed after the agreement is made. The highest my learned friend put it was it was not appropriate and that there were other enquiries which might have been made. He didn't identify what any of those enquiries were or why it wasn't appropriate, other than expressing a conclusion. In particular, you will recall the evidence of Mr Priem that nobody has yet been employed, because they're waiting for the agreement to be approved, so there's no suggestion in my submission that any of the mandatory requirements for there being a greenfields agreement aren't met, or couldn't be addressed on the material that's presently before the Commission.

PN965

So, even if you are against the CEPU with the submission that's made as to why the agreement was made in the first place in February, in my submission, there'd be no reason why the agreement could not be - or compliance with the requirement that the application be made after the agreement was made could be waived.

PN966

Can I come to the question of majority coverage? In respect of section 187(5)(a), my learned friend suggested or submitted that it was not correct, as had been adopted in BESIX to simply look at the evidence of who will be employed, but it was also appropriate to not only look at that evidence, but look at the agreement as a whole. My learned friend didn't offer any answers to the criticisms which I found in Deputy President Coleman's decision as to how one derives any help from the agreement. How many employees do you assume per classification? Do you assume that every classification will have an employee? All of those types of issues. There's no attempt to grapple with any of those issues.

PN967

But even if one was to take into account the classifications contained in the agreement, along with the evidence, when one looks at the majority of those classifications can be covered by the union parties. Throughout the CW classifications, they are redolent with either concrete workers or plant operators, then there are piling classifications which are covered by the Pile Drier Award pertaining to the pile driver. Then there's a series of electrical worker classifications which are covered by the CEPU. Then there are mechanical worker classifications which are also covered by the AMWU. Then there are five sprinkler services and plumbing and mechanical services which would be covered by the other part of the CEPU rules. So, there is no help from my learned friend if he retreats to the text of the agreement in terms of majority coverage.

PN968

Can I come now to the question concerning the FEDFA rule? With respect, my learned friend conflates two important issues. Firstly, when there is a question as to whether a person's primary function or primary purpose of employment is driving a particular type of machinery which is said to answer the description in the FEDFA rule, the first thing that has to be undertaken is to assess the (indistinct) construe the rule and say is that one of the pieces of machinery which the rule applies. That was the first part of the exercise which has spent considerable time on with the Commission because there are a number of cases, and I won't traverse them again, which say the proper construction of the rule is that as far as engine driver encompasses all types of mechanical plant.

PN969

Well, that's not the answer to the entire enquiry, but once you accept that the rule applies to people who operate mechanical plant, the next step in the path is to apply the principal function test and to say, does this person who operates this piece of machinery, is it their principal function to operate the piece of machinery. That's why I say that ultimately Dulux and CSBP have nothing to do with this case because the only contradicted evidence of Mr Priem is that the sole purpose for which the plant operators are engaged is because of the specialised skill required in operating pieces of plant, and that is the sole purpose for which they are engaged.

PN970

That was his evidence and there was no attempt to undermine that in cross-examination. Can I also just point to page 44 of the court book, which is the classification structure. It makes clear that you'd be engaged in one of those classifications based on the primary role in which you're engaged to perform by the employer. So, when Mr Priem says that they will be engaged in these classifications, it's because their primary role is going to be that of plant operator. So, that is an affirmative answer to the second part of the enquiry. So far as my learned friend suggests that there's been some departure from that orthodox approach, he had no answer to the Full Court of the Western Australian Industrial Court saying that (indistinct) was not authority for the proposition that he said it was, and there was no answer to the contention that the Full Bench in this Commission had affirmed those earlier cases as to the meaning of an engine.

PN971

In my submission an orthodox approach to this question would be firstly to construe what is meant by engine consistently with those authorities and then looking at the evidence of Mr Priem and that of the classifications, find that they are engaged for the principal purpose of operating that plant.

PN972

Can I just address the question of the opinions that my learned friend raised? Can I ask the Commission to take up the CFMEU rules, firstly at page 9, which is the relevant rule - sorry, tab 17, page 9? The second part of the rule is attendance - where he says cleaners, trimmers, and any other workers assisting about the work, incidental to any engine. They're not just attending the engine but assisting in and about the work, incidental to any engine. Now, if there's any debate as to what the engine might be for the purposes of the rule, if one comes to rule 3(F) which is on page 46, which is the industry rule, which you're permitted to have me go to for some ambiguity.

PN973

Attendance to any engine, winch, crane, mobile crane, forklift, (indistinct) motor, pile driver, excavator, pump, boiler, generator or motor used.

PN974

Now, a dogman or a rigger is an attendant to a crane within that rule and in my submission, when 3(F) is considered, the spotters are also 'any worker assisting in or about work incident to any engine being a mobile plant'.

PN975

Now, the last matter that my learned friend addressed was the terrazzo rule, if I can call it that way. He made the submission that it only applied to terrazzo or a similar composition which had been prepared off-site. That, in my submission is not the case. The erection part of the rule plainly refers to the composition being erected at the building site. Indeed, terrazzo is traditionally a flooring and it would be laid at the site in its plastic form and it would set and then it would be acid washed or polished to reveal the finish. That's precisely what the concrete workers here would be doing, is setting the concrete aside, and that is the erection of a similar composition to terrazzo.

PN976

Unless the Commission has any questions.

PN977

THE COMMISSIONER: Mr Follett.

PN978

MR FOLLETT: Commissioner, the first matter I think, is that careful intention needs to be paid to in considering what I'm about to say and what everyone else has said, is if the Commission accepts my learned friend Mr Massy's submissions about the FEDFA rule, there's no issue and can be no issue with respect to majority coverage because assuming plant operators are in, there's only 65 other roles that are out, plus 24 if you exclude the terrazzo. That's 80 out of 360. Even if the 360 are going to be going a little bit this way, a little bit that way, a little bit this way, the suggestion that 89 out of 360 which my maths is not very great, but it's about 25 per cent, you'd have to be satisfied that there's a more than 25 per cent swing in the vagaries of proportion within classifications. That's important because when you consider the nature of the evidence required in your state of satisfaction about majority coverage, it's different enquiry if the plant operators are in or out, because that basically kills the plot.

PN979

Starting with the signature requirement, the first task you need to do, in my respectful submission is determine whether the CEPU as a registered organisation is expressed to be covered in the agreement. It is not known as such when Mr O'Halloran signed it. This is what my learned friend Mr Massy described as a misnomer point. If you form the view that the agreement was objectively intended to cover the CEPU as the registered organisation, the only legal entity that could be a party to the agreement and the only legal entity that exists, then that has an influence on how one assesses the agency question as well as the ratification question.

PN980

If alternatively you form the view, Commissioner, that the CEPU is, as the organisation, is not express to be covered by the agreement, that doesn't mean the agreement hasn't been made. The agreement has unarguably been made with the employer, the AMWU and the CFMEU. That flows from section 182(3) of the Act. That is a greenfields agreement is made when it is signed by each employer and each relevant employee organisation that the agreement is expressed to cover. If you form the view that the agreement is not expressed to cover the CEPU, it doesn't matter whether they signed it; they're just not covered by it.

PN981

Now, that might mean for 187(5) purposes, that the 67 plumbing employees drop out. But again, if the plant operators are in, that won't make a difference. If, however, you form the view consistent with many authorities and the obvious sense of the matter, that the intended party covered by the agreement was the CEPU as the registered organisation, then what my learned friend Mr Massy said about Mr O'Halloran's authority, is clearly correct. You can't be an agent for an entity that doesn't exist. Mr Gibian would have it that Mr O'Halloran wasn't acting on anyone's behalf, no organisation, no entity, no corporation, no one, other than himself. That is not a sensible way to characterise that question.

PN982

If that position be reached, apparent authority exists and ratification, there is no answer to ratification. My learned friend didn't even deal with the indoor management rule, hasn't got an answer for it, didn't touch it. The Alamo submission, if all else fails, the Commission can form the view that the agreement was made with the CEPU on the 8 April. As my learned friend Mr Massy pointed out on a number of occasions by reference to what Mr Gibian's submissions were, a whole lot of dust is thrown up in the air in very general terms, but no forensic identification of a crystallised point that makes a difference is every made.

PN983

He said for example, that one wouldn't exercise a discretionary power to waive an irregularity because it would create different questions as to compliance with the statutory criteria. You can go through the statutory criteria. There's not a single one that differs in any respect at all except has there been employees employed before the agreement is made and the unchallenged evidence you heard today was that there hasn't been a single JHQ employee within the scope of the agreement, employed to work on that project. Not now, certainly not before 8 April.

PN984

I thank my learned friend for averting the Commission to the Lifeline matter. That is authority, as I made the submission based on Griffith Cranes, the early lodgement of an application prior to a particular event, this being the making of the agreement, it was within the meaning of Griffith Cranes an irregularity in the manner. That's exactly what that case, Mihajlovic v Lifeline Macarthur says. It says that a premature application in the context of unfair dismissal, a premature application is an irregularity.

PN985

So, under the Alamo argument, 8 April, no other statutory criteria that is the problem, it's just simply an exercise of your discretion and in our respectful submission, it would be not in accordance with the dictates which operate within this Commission about equity conscience and the substantial merits to make the parties go back again. We make an agreement which could be done tomorrow and refile an application, or file a new application based on the 8 April and ask for an extension of time tomorrow, simply to deal with this technical point.

PN986

Turning to majority coverage, as I said, if you accept my learned friend Mr Massy's submissions about plant operators, it's all over. The fundamental basis of Mr Gibian's submissions were, as anticipated, to point to a range of matters which, sitting here today, no person could sensibly give evidence to the Commission about what's going to happen and then make the submission that unless you were satisfied to a sufficient degree of certainty that you shouldn't approve the agreement.

PN987

The logical consequence of that is in any contested case you could never reach that state of satisfaction, because you could never be certain. The difficulty with the submission is that certainty is not the test. It's balance of probabilities, satisfaction based on balance of probabilities, what is more likely to be the case, more probable to be the case.

PN988

My friend then attempted, and I'm not meaning to be critical of him – it inevitably happens when making final submissions after evidence has been given – but there were a number of submissions made about what Mr Priem's evidence today was, which I think the Commission will find upon a review of the transcript was not a proper reflection of what he said in any material sense; for example, it was submitted that Mr Priem accepted that, with respect to the concrete gang, which has two FTEs, that there would be 15 people in that classification at some point in time, when the actual evidence was that there might be 15 people performing that work made up of a team of various classifications, not all of which would be concreters within the concrete gang classification.

PN989

My friend said then in that context, well there might be others workers drawn, but no attempt was given to identify what classifications they might have come from in the team of 10 to 15. That's not correct. The FRP crew was said to be a blend of concrete hands, concrete finishers, labourers, skill fixers, form workers. And then he said, with respect to the float hands, which were two, 'I wouldn't say more than two. I would certainly not say I'm going to employ a hell of a lot more than two.'

PN990

It was also said that what Mr Priem had said about variations within a classification within a particular work period, the 20 versus 2 I think was the example Mr Gibian used, applied to that classification, and applied to all other classes of employees. That was not the evidence in any respect. The evidence was that there is work broken down into packages or activities. Exactly who performs it, as long as they have the skills, will be determined. You might recall the evidence that concrete finishers might be doing the work of a concrete float hand, because they're a higher qualification or skill level.

PN991

That's not evidence to say well there might be more people at a particular point in time doing that activity. That's not evidence that there's going to be more people in that classification. It's just that there's going to be more people at a particular point in time, and it ignores the fact that construction is dynamic activities. That's really the gravamen of Mr Priem's evidence, which my learned friend says he doesn't understand.

PN992

You don't just have people working on a particular point for a particular point in time, and then they stop and they wait around until something else happens, and then they go to some other site. They're constantly working. Mr Priem said we keep them busy, we move them around. They're doing concreting work here and then concreting work under another class of work, and then concreting work under somewhere else, and the plant operator's doing the same thing. There's X number of plant operator's hours required for this activity, but that plant operator is then going over to another activity to do more work over there. It's not head count. It's not employees.

PN993

Ultimately my learned friend agreed with me that it's the proportions that matter, not an arithmetic debate about head count and how many total employees in each category. That's exactly what Mr Priem's evidence is, as I explained in my earlier submissions. That's what the appendix is, and that appendix was drawn from thousands of lines of programming. That comes up with the proportion. How many persons that is doesn't matter much if the proportion is a proportion derived from 1000 lines or thousands of lines of programming.

PN994

Satisfaction in jurisdictional fact, I don't think it matters much. I think we're agreed that the state of satisfaction is not a jurisdictional fact. Whether you reach it and whether it's discretionary or not depends on what the state of satisfaction is about. Here the state of satisfaction is about whether a majority of employees will be covered. That's why I said earlier it's because that assessment is itself evaluative that it's discretionary. Just like in Coal and Allied, whether there was a significant damage to the economy, breaching a state of satisfaction about that was described as breaching a state of satisfaction about a discretion.

PN995

Person employed to drive an engine, we endorse exactly what Mr Massy said. There's a two‑stage inquiry there: one, is the plant being operated an engine. If it's not an engine, they're not within the rule. If it is an engine, then you need to assess whether or not the principal purpose or the primary purpose of the engagement of that person is to drive that engine or that piece of plant.

PN996

It's not, as my learned friend said repeatedly, the sole purpose. It's not, as my learned friend said repeatedly, the only purpose, and it's not, as my learned friend said more than once, engaged in that activity simpliciter. That is sole; that is not primary. And indeed, my learned friend accepted that the purpose that the employer has employed the employee for.

PN997

There's only one piece of evidence going to that, and that's Mr Priem's evidence. There was no cross‑examination about it. There was no challenge to it. There was no suggestion it wasn't correct. There was no suggestion there were other activities to be performed by any of these persons. There was no suggestion that when these persons were employed they were employed for the purpose of being a rail worker or a rail line worker rather than for the purpose identified by Mr Priem in his evidence. And there was no suggestion that the purpose for which these employees were engaged was anything other than the purpose he said it was.

PN998

For him to now say that you should find that they weren't engaged for the purpose as stated by Mr Priem is unavailable to him, because he hasn't put any of those propositions, not a single one of them, to the witness to give him an opportunity to answer. He says, 'I engaged these people in the roles as described in the classifications because we require specialist skills. That's the primary purpose for which I engaged them.' As Mr Massy said, it's set out in the classification structure and the agreement itself; unchallenged. He can't now say you should find that wasn't the purpose for which they were engaged.

PN999

Equally on that point, my friend's submission really is one needs to look at the nature of the project or activity and that will have the effect of classifying everyone on it. So it's virtually to the effect because you're building a rail line, which is a civil construction project, everyone on that project is just engaged in civil construction work. That's the ultimate purpose. The ultimate aim of the role is to deliver the project.

PN1000

That's not the way in which one assesses occupational classification coverage of union rules. If it were, you could never have an excavator driver, which the CFMMEU accepts. You could never have a crane driver, which the AWU accepts, because they should be properly classified as rail workers as well, because they're only driving the crane for the purposes of delivering a rail project. And no explanation is provided for why the AWU concedes crane operators and excavator drivers by reference to the principal purpose test, but then just asserts well you wouldn't accept the principal purpose of any other plant operator is driving the plant. Those were the submissions.

PN1001

THE COMMISSIONER: Anything else?

PN1002

MR FOLLETT: Oh, just on the question of waiting for BESIX, that's not an appropriate course, in our respectful submission. That's something that could have been raised at a much earlier time. It's not raised even by the AWU as something that you should never(?) necessarily do. It's obviously an inquiry from the Bench. Ultimately there's always, at any particular point in time, endless matters in this Commission under appeal, or some matters under judicial review, or some question in the Court which raises a matter - - -

PN1003

THE COMMISSIONER: Yes. Well, I only asked because I wanted to hear your views on it, because the Full Bench comes up with some different position. I mean, you've relied on the Coleman decision, so if something comes out of it which is different, and I rely on the Coleman decision, well then you're all affected by that.

PN1004

MR FOLLETT: Well, potentially. That's right, but the alternative is to sit around and wait, and from my client's perspective we don't know how long that's going to take. I think it was argued in April, so it's not likely to be too much longer, but the consequence is, if we start employing any persons directly, and there's some difficulty with the agreement, we're no longer in greenfields territory, which certainly prejudices us. So we would anticipate that the matter will just be dealt with in the ordinary course of the Commission's business, and given that it's a greenfields agreement ordinarily that has a degree of expedition, but of course we're in the Commission's hands.

PN1005

THE COMMISSIONER: Yes, sure. Does anyone else have anything – Mr Massy?

PN1006

MR MASSY: Just one very brief matter. Nothing turns on it, but I should inform the Commission (indistinct) critical at a later point. The Full Bench's decision in Dulux is presently the subject of a reserved application for constitutional writs.

PN1007

THE COMMISSIONER: Anything else?

PN1008

MR MASSY: No.

PN1009

THE COMMISSIONER: We'll adjourn. I'll reserve my decision. Thank you.

ADJOURNED INDEFINITELY [4.44 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

OMAR FARUQI, AFFIRMED.............................................................................. PN48

EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................... PN48

EXHIBIT #1 EXPERT REPORT OF MR FARUQI WITH APPENDICES AND TABLES DATED 04/05/2022.................................................................................................. PN65

CROSS-EXAMINATION BY MR FOLLETT..................................................... PN90

RE-EXAMINATION BY MR GIBIAN............................................................... PN146

THE WITNESS WITHDREW............................................................................. PN156

ANDREW PETER PRIEM, AFFIRMED........................................................... PN160

EXAMINATION-IN-CHIEF BY MR FOLLETT.............................................. PN160

EXHIBIT #2 WITNESS STATEMENT OF ANDREW PRIEM WITH ANNEXURE DATED 13/04/2022............................................................................................................... PN175

EXHIBIT #3 WITNESS STATEMENT OF ANDREW PRIEM DATED 17/05/2022 PN188

CROSS-EXAMINATION BY MR GIBIAN....................................................... PN205

RE-EXAMINATION BY MR FOLLETT........................................................... PN407

THE WITNESS WITHDREW............................................................................. PN444

ANDREW PETER PRIEM, RECALLED.......................................................... PN464

FURTHER CROSS-EXAMINATION BY MR GIBIAN................................... PN464

THE WITNESS WITHDREW............................................................................. PN540

TRENT WARREN SMITH, AFFIRMED........................................................... PN545

EXAMINATION-IN-CHIEF BY MR FOLLETT.............................................. PN545

EXHIBIT #4 WITNESS STATEMENT OF TRENT SMITH DATED 13/04/2022 PN560

CROSS-EXAMINATION BY MR GIBIAN....................................................... PN562

RE-EXAMINATION BY MR FOLLETT........................................................... PN626

THE WITNESS WITHDREW............................................................................. PN631