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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT HAMILTON
COMMISSIONER GREGORY
COMMISSIONER HARPER-GREENWELL
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2016/23)
Melbourne
10.06 AM, TUESDAY, 4 APRIL 2017
Continued from 3/04/2017
PN1012
VICE PRESIDENT HATCHER: All right, Mr Crawford, I think the first witness if your witness.
PN1013
MR CRAWSHAW: Yes, your Honour, Mr Sharp, he should be in Melbourne.
PN1014
VICE PRESIDENT HATCHER: Yes, Mr Sharp, can you come forward to the witness box please?
PN1015
MR CRAWSHAW: Just before that happens, can we just do some housekeeping. I think my friend has something to say, and we do too, which is relatively important in terms of the hearing schedule this week.
PN1016
VICE PRESIDENT HATCHER: Right, well, Mr Sharp, can you just resume your seat while we deal with this.
PN1017
MR CRAWSHAW: Firstly, I think when I was dealing with the objections yesterday, I mentioned that the witnesses that we wanted to cross-examine on Thursday, Ms Lewis and Mr Castledine, we'd only asked for them to be cross-examined in relation to the surveys. Now by the very nature of that evidence, as we made clear in the objections document, are the only real thing that we can cross-examine on, given the nature of the evidence, is the methodology.
PN1018
As Deputy President Hamilton pointed out yesterday, we've already spelt out, both in our written submissions in replay and also in the objections document, the criticisms that we have of the methodology of those surveys. In those circumstances, even if Browne v Dunne applied, we put the HIA and the CCF on notice of those criticisms. It seems rather a pointless exercise to put them to those witnesses in the witness box. As Deputy President Hamilton said, it can be dealt with in submissions.
PN1019
In all those circumstances, we don't require those witnesses for cross-examination, but as I also said yesterday, we do want to tender the actual survey documents. I haven't made five copies, but we do have a copy of the HIA survey and the CCF survey as produced to the union, pursuant to the orders for production that were made last year. We can make five copies if need be, or it can be made available electronically, depending on the Commission's preference.
PN1020
VICE PRESIDENT HATCHER: Is there any objection to the tender of these documents? What's in this folder, Mr Crawshaw?
PN1021
MR CRAWSHAW: In relation to the CCF survey, it's a CCF survey as produced. You may have noted that in Mr Melham's response to our objections, that he goes to great pains to say that the CCF survey does identify the members. We never alleged that the CCF survey didn't. What we say in relation to the CCF not identifying members related to their - - -
PN1022
VICE PRESIDENT HATCHER: First of all, just trying to clarify what's in this folder.
PN1023
MR CRAWSHAW: That was a way of introduction to say that the material produced by the HIA is not the raw data and doesn't identify the members. It was a document that the HIA produced after de-identifying the members to use a term that I think was used by the MBA in relation to their witness.
PN1024
VICE PRESIDENT HATCHER: What's this, five tabs. The last one is a letter from the Civil Contractors Federation.
PN1025
MR CRAWSHAW: They correspond to the different questions that were asked.
PN1026
VICE PRESIDENT HATCHER: Can you just tell me - - -
PN1027
MR CRAWSHAW: You go across the top of the page in each tab. There's a series of questions, about 10. So, tab one has the first 10 questions; tab two has the second 10 questions; tab three has the third ten questions and so on. They're probably not exactly 10, but that's how the material was produced to us. It's not the raw data.
PN1028
VICE PRESIDENT HATCHER: Produced by who, the HIA?
PN1029
MR CRAWSHAW: By the HIA.
PN1030
MS ADLER: Your Honour, we filed that in response to the notice to produce dated 17 January, 2017 and that is the raw data. We complied with the notice to produce, and we weren't provided any correspondence from the unions that it didn't comply with the notice to produce.
PN1031
VICE PRESIDENT HATCHER: But do you understand, it's redacted in some form.
PN1032
MS ADLER: The identification of the members who responded is redacted because the issuance of the survey is based on the fact that we keep the member details anonymous. We did file correspondence prior to the issuing of the order indicating that we would be redacting the identification of the members.
PN1033
VICE PRESIDENT HATCHER: All right, thank you. The document behind the last tab, the letter from the CCF, what's that, Mr Crawshaw?
PN1034
MR CRAWSHAW: That's the CCF survey that was produced.
PN1035
VICE PRESIDENT HATCHER: That was produced by the CCF, was it?
PN1036
MR CRAWSHAW: Yes.
PN1037
MR BOANZA: Yes, it was your Honour. Similarly, to the Housing Industry Association, we produced we filed the evidence that the CFMEU was requesting and we didn't receive any further correspondence from the CFMEU, so I assumed that the data we provided was the data that they were looking for.
PN1038
In our opinion, we are an employer organisation. Our members are companies, not individuals, so in our submission we identified those companies as supporting our submission.
VICE PRESIDENT HATCHER: I'll mark these as two exhibits. I'll mark as exhibit 5 the survey documentation produced by the Housing Industry Association in response to an order for production dated 17 January 2017, noting that the names of survey respondents have been redacted. So that's exhibit 5.
EXHIBIT #5 SURVEY DOCUMENTATION PRODUCED BY THE HOUSING INDUSTRY ASSOCIATION IN RESPONSE TO AN ORDER FOR PRODUCTION DATED 17/01/2017
I'll mark as exhibit 6 the survey information provided by the Civil Contractors Federation in response to an order for production dated 17 January 2017.
EXHIBIT #6 SURVEY INFORMATION PROVIDED BY THE CIVIL CONTRACTORS FEDERATION IN RESPONSE TO AN ORDER FOR PRODUCTION DATED 17/01/2017
PN1041
MR CRAWSHAW: Can I just make this point about the redactions, that the way the HIA put it, was that the survey, when they did the survey, they assured their membership that they would remain anonymous and that was the basis on which they didn't produce it. I don't want this to be seen as us consenting to a redaction being used for a precedent for the other matter, for example, that the MBA want to canvass.
PN1042
VICE PRESIDENT HATCHER: Having marked those documents, you now no longer require David Castledine and Kirsten Lewis for cross-examination, is that correct?
PN1043
MR CRAWSHAW: That's correct.
PN1044
VICE PRESIDENT HATCHER: Does that mean we can assuming the witness list goes to program, we can vacate the hearing on Thursday?
PN1045
MR CRAWSHAW: That's why I was anxious to tell you about it first thing, so we can arrange it.
PN1046
VICE PRESIDENT HATCHER: We won't vacate it till we are confident that the witness list is being adhered to, but the parties can expect that that will be the case. Mr Schmitke, did you have any clearing issues.
PN1047
MR SCHMITKE: Yes, I do, your Honour, just some housekeeping matters arising from yesterday, if I may. In relation to the matters canvassed regarding the redacted statement and some comments made, taking into consideration some additional materials that could be required for our application regarding the redacted statement.
PN1048
I have overnight, sought some additional instructions from the relevant member. I'm hoping to be in a position whereby later today, if not throughout the proceeding and certainly tonight, I will have additional materials which I would seek to use in respect of that application. It would be I can undertake to the Commission that if they're not provided to me during proceedings today, I will circulate them to the parties and the Commission this evening.
PN1049
The intention of doing that, and to getting additional instructions, is to ensure that regardless of the outcome of that application, we do have instructions about how to proceed, so as not to require a brief adjournment at the end of the application, to delay any proceedings before the Commission. To that end, I've spoken with the CFMEU this morning and proposed that subject to their views, that we have the application dealt with first thing tomorrow morning. I say all this with the spirit of ensuring that I'm not delaying the Commission unnecessarily.
PN1050
That would be the course that we would propose to adopt in relation to that particular aspect of our claim, subject to the views of the Commission. The other matters I wish - - -
PN1051
VICE PRESIDENT HATCHER: Sorry, just before you go on, does dealing with the confidentiality application require us to hear evidence about it from the witness himself?
PN1052
MR SCHMITKE: I'm endeavouring to find alternative ways via those documents, your Honour, yes.
PN1053
MR CRAWSHAW: We haven't raised this with my learned friend earlier, but it occurs to me that rather than the matters just going to the Commission, we should really see it first because it doesn't sound like it's in the nature of a witness statement. So, I'd ask my learned friend, through you, that we be allowed to see it first before it's just distributed to the Commission.
PN1054
VICE PRESIDENT HATCHER: If the parties tell the Bench that they're in a position to argue the confidentiality application at 10 am tomorrow morning, then is there any particular reason why we need to even see the material before then?
PN1055
MR SCHMITKE: Your Honour, that was merely to assist the Commission, but no, there's not.
PN1056
VICE PRESIDENT HATCHER: All right, well why don't you provide it to the CFMEU and other affected parties as soon as you can.
PN1057
MR SCHMITKE: Certainly.
PN1058
VICE PRESIDENT HATCHER: Then, if Mr Crawshaw is in a position to consent to it being sent to the Commission, you can send it to us. If not, we'll simply deal with it at 10 am tomorrow morning.
PN1059
MR SCHMITKE: Thank you.
PN1060
MR CRAWSHAW: That's convenient to us, too. Although as I said yesterday, we will be in Sydney tomorrow, but we can still argue that point. I don't know where the unidentified witness is, but I suspect the unidentified witness is from New South Wales.
PN1061
Mr Maxwell does remind me that there's a video link set for 10 am tomorrow morning, but I suppose that can be postponed for a little while.
PN1062
VICE PRESIDENT HATCHER: Well, we have that link all day, so it's not an issue. Anything else Mr Schmitke?
PN1063
MR SCHMITKE: Yes, your Honour, there's three documents that I'd just seek to hand up arising from matter discussed yesterday. I regret to apprise the Commission that my access to printing facilities is such that I only have limited copies, so additional copies might need to be provided.
PN1064
The first of those documents is a section of the Commonwealth Work Health Safety Regulations 2011 that deals with PPE. We undertook to provide that to the Commission yesterday. The second there's two additional documents which I provided, again, in response to questions, enquiries yesterday from the Bench.
PN1065
The first of those deals with matters arising from Mr Solomon's evidence and there was a question with respect to particular claims and the extent to which they claim that Master Builders has advanced where the subject applied to the particular clauses attached to Mr Solomon's statement in the annexure to his statement. The document essentially uses the format of Mr Solomon's annexure and has an additional column on the right-hand side that identifies which matters are not subject to MBA claims, and the ones without an X indicate that they are. Because of the number involved, there's only a limited number that were not subject to our claim and a number that were.
PN1066
The additional third document is a again, I apologise for the size your Honour, is a document which summarises the claims that Master Builders have brought in general. The nature of that table identifies where the particular, or identifies the award subject or clause. It identifies a specific clause reference. It then identifies the submission within which we have addressed that particular matter. It then identifies whether or not it is subject to our primary position regarding work health safety.
PN1067
It then identifies if it is a work health safety claim, whether our preference is to delete it and then we've got the generic provision and then we've got the sorry, we've got the deleting provision that deal with work health safety matters, but retaining the clause so it's otherwise operative. Then we have the third position which is the generic references to be inserted instead.
PN1068
The document also identifies other allowances which are not subject to work health safety claims that we seek to rationalise and/or consolidate and proof. Also matters that are allowances or clauses that we say are obsolete or outmoded. I should indicate, your Honour, that at the bottom of the first page there is a key, or some notes that refer to particular numbers. Those number correspond with numbers at the top of the table so that you can understand what those particular columns mean.
PN1069
It was done in the wee hours of last night and the very early hours of this morning, so the caveat I suppose I mention, is that this is to assist the Commission and we hope, provide a summary snapshot summary of the approach you want to take with respect to all of our claims.
PN1070
VICE PRESIDENT HATCHER: Since we've only got one copy, there's no point trying to explain it now, so when we get it copied, you can make an attempt to explain what it means.
I'll mark these documents just for the sake of convenience. Extract from the Commonwealth Work Health and Safety Act will be marked exhibit 7.
EXHIBIT #7 EXTRACT FROM THE COMMONWEALTH WORK HEALTH AND SAFETY ACT
PN1072
MR SCHMITKE: Your Honour, if I could - just before we mark these documents, the caveat I was going to mention, was that I would like to have the opportunity to review them prior to making submissions next week. It may well be that I provide another version of this document which is reviewed arising from the rest of these proceedings.
PN1073
VICE PRESIDENT HATCHER: That's noted. We can substitute them if you want to replace them.
PN1074
MR SCHMITKE: Thank you.
VICE PRESIDENT HATCHER: Table of annexure A statement of David Solomon, identifying which matters are the subject of MBA claims will be marked exhibit 8.
EXHIBIT #8 TABLE OF ANNEXURE A STATEMENT OF DAVID SOLOMON, IDENTIFYING WHICH MATTERS ARE THE SUBJECT OF MBA CLAIMS
Third document which I'll just call MBA analysis of award claims will be marked exhibit 9.
EXHIBIT #9 MBA ANALYSIS OF AWARD CLAIMS
PN1077
MR CRAWSHAW: I take it exhibit 8 and 9 are more in the nature of an aide memoir and I'm not objecting to marking them perhaps, but if I can just reserve our positon on it in case it has anything in it that is objectionable.
PN1078
VICE PRESIDENT HATCHER: Yes, we all have to read it first to find out. Yes, Mr Schmitke, is there anything else.
PN1079
MR SCHMITKE: No, that's all thank you, your Honour.
PN1080
VICE PRESIDENT HATCHER: Just in relation to exhibit 7, did this relate to the question I raised about employee provision of personal protective equipment?
PN1081
MR SCHMITKE: Yes, it does.
PN1082
VICE PRESIDENT HATCHER: So what particular aspect did you point to?
PN1083
MR SCHMITKE: I recall your Honour was I was, at the time that this matter was being discussed I was looking at a provision of the model regulations and I undertook to provide a copy of the relevant section to which I was having regard, that is the particular provision.
PN1084
VICE PRESIDENT HATCHER: Is there anything in this which contemplates the employee could provide the equipment and be reimbursed?
PN1085
MR SCHMITKE: Well, the answer to the question is no. There is a provision there that allows for the provision of PPE by other PCBUs, but not employees per se. It would depend on that definition.
PN1086
VICE PRESIDENT HATCHER: Right, thank you.
PN1087
MR CRAWSHAW: I should just note that my learned friend asked me for a copy of that decision of your Honour, the Vice President that I referred to yesterday on confidentiality [2015] FWC 774. I think your associate or one of the associates, put copies in front of each member of the Bench.
PN1088
VICE PRESIDENT HATCHER: That's on the confidentiality application.
PN1089
MR CRAWSHAW: That's for the case, the application at 10 am tomorrow.
VICE PRESIDENT HATCHER: All right, is that all the preliminary matters? We return to Mr Sharp, can you come forward to the witness box please.
<JEFFERY ALLAN SHARP, AFFIRMED [10.25 AM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [10.25 AM]
*** JEFFERY ALLAN SHARP XN MR CRAWFORD
PN1091
VICE PRESIDENT HATCHER: Thank you Mr Sharp. Mr Crawford in Sydney on the screen up there will ask you some questions now. Mr Crawford.
PN1092
MR CRAWFORD: Yes, thank you, your Honour. Mr Sharp, have you provided a witness statement in these proceedings?‑‑‑Yes I have.
PN1093
Do you have a copy with you?‑‑‑I do.
PN1094
Is that statement dated 9 December 2016?‑‑‑That's correct, yes.
PN1095
It has 31 paragraphs?‑‑‑Yes it does.
PN1096
To the best of your knowledge, is the content of that statement true and accurate?‑‑‑Yes.
PN1097
Thank you, Mr Sharp. I seek to tender the statement your Honour.
VICE PRESIDENT HATCHER: The witness statement of Jeffrey Allan Sharp dated 9 December 2016 will be marked exhibit 10.
EXHIBIT #10 WITNESS STATEMENT OF JEFFREY ALLAN SHARP DATED 09/12/2016
PN1099
MR CRAWFORD: That's it from me, your Honour.
PN1100
VICE PRESIDENT HATCHER: Who would like to cross-examine this witness?
PN1101
MS PAUL: Myself, your Honour.
VICE PRESIDENT HATCHER: Ms Paul.
CROSS-EXAMINATION BY MS PAUL [10.27 AM]
PN1103
MS PAUL: Yes, your Honour. Mr Sharp, I just want to confirm you said you'd been an organiser since 2012, could you outline the area or speciality you look after at the union?‑‑‑Yes, I look after construction, new construction.
*** JEFFERY ALLAN SHARP XXN MS PAUL
PN1104
The evidence you've provided in your statement, that's as a result of the discussions you've had with your members, is that correct?‑‑‑That's correct, yes.
PN1105
Can I ask, have you read the draft determination, the CFMEU draft determination in relation to the living away from home claim, is that correct?‑‑‑No, not that I know of, no.
PN1106
When you say that your statement is in response to the living away from home claim, which living away from home claim are you attesting to?‑‑‑Well the how it all works on construction when people are living away from home.
PN1107
You indicated that you worked in the construction industry from 1971 to July 2012, what type of work did you do?‑‑‑Steel erection, demolition, roofing, scaffolding, crane driving, basically all of it.
PN1108
You also made a statement that your role involved representing the industrial interests of your members. Do you mean you represent them from disputes in time to time that they happen?‑‑‑I represent them from start to finish, the majority of them.
PN1109
Do you represent them in terms of disputes?‑‑‑Yes.
PN1110
Do you negotiate enterprise agreements for them?‑‑‑Yes.
PN1111
You've indicated that sorry, I'll withdraw that. In your statement at clause 5, you've listed a number of companies. Have you negotiated any enterprise agreements with those companies on behalf of your members?‑‑‑Yes.
PN1112
How many of those agreements cover employees that are undertaking distant work?‑‑‑Yes.
PN1113
VICE PRESIDENT HATCHER: How many?
PN1114
MS PAUL: Sorry, your Honour, how many?‑‑‑How many?
PN1115
Yes?‑‑‑That's a ballpark figure. It would vary. The last job I would say probably 70 per cent on one particular job and on another particular job, it was probably about 10 15 per cent.
*** JEFFERY ALLAN SHARP XXN MS PAUL
PN1116
Sorry Mr Sharp, maybe I didn't make that question clear. In relation to the companies that you've listed in paragraph 5, how many agreements have you negotiated that actually cover employees in relation to distant work?‑‑‑All of them.
PN1117
Yes, but do you know a number of agreements that you have negotiated in relation to those six employers?‑‑‑Is it okay if I have a look at it?
PN1118
VICE PRESIDENT HATCHER: It's paragraph 5 of your statement.
PN1119
MS PAUL: Yes, sure, it's paragraph 5?‑‑‑Yes, all of them.
PN1120
How many have you negotiated with CBI?‑‑‑How many agreements?
PN1121
Yes?‑‑‑Only one.
PN1122
Wood Group?‑‑‑Probably three.
PN1123
Yes, and Transfield?‑‑‑Transfield, two.
PN1124
Chelgrave?‑‑‑Chelgrave, two.
PN1125
UGL?‑‑‑Probably four.
PN1126
And Downer?‑‑‑Downer, one.
PN1127
All of those agreements have got clauses relating to distant work or living away from home?‑‑‑Yes.
PN1128
How many of those agreements would have covered work on remote sites?‑‑‑All of them.
PN1129
How many of those agreements covered work on camps where the employees were having to live on camps?‑‑‑On camps, probably one.
*** JEFFERY ALLAN SHARP XXN MS PAUL
PN1130
Which one was that one?‑‑‑I'd have to have a look. Yes, just one, Downers.
PN1131
Those agreements that you've negotiated, did they have rest and recreation clauses that provided for 4:1 rosters, for example?‑‑‑Are you talking about time off?
PN1132
Yes, the four weeks on, and one week off?‑‑‑Yes.
PN1133
Did any of them provide for three weeks on and one week off?‑‑‑No.
PN1134
Did any of them provide for a greater period of say five or six weeks on and similarly one or two weeks off?‑‑‑No. I think three weeks on, three weeks off is probably the furthest one.
PN1135
Which is the one that provided three weeks on, three weeks off?‑‑‑Downers one.
PN1136
Do you recall if any of them actually provided for LAFHA allowances of $913.88?‑‑‑Yes, but I couldn't be sure of the figures.
PN1137
The question was whether you actually do you know of any of the agreements you negotiated provide for a LAFHA allowance of $913.88?‑‑‑No.
PN1138
Of the agreements you've negotiated, do any of those agreements have a higher allowance than $913.88?‑‑‑Not that I know of, no.
PN1139
Is it possible that a number of those agreements would have had allowances similar to that in the current award?‑‑‑Yes.
PN1140
You've provided evidence around the employer telling employees that they will only sorry, you mentioned in your statement some issues around gate starts. You've indicated that you understand that employers tell employees they will only get a job if they give a local address?‑‑‑Yes.
PN1141
Have you brought any disputes before the Commission or any claims on behalf of any of those employees?‑‑‑No, not that I can remember.
PN1142
In relation to the evidence you've given on motelling. How many of the members that you represent in those have been subjected to motelling?‑‑‑I couldn't give you an exact figure, but a number of them.
*** JEFFERY ALLAN SHARP XXN MS PAUL
PN1143
Can I ask are any of the employees that would have worked for CBI, Wood, Transfield, Chelgrave or UGL?‑‑‑No.
PN1144
Any of those employees work for employers other than, and as you've stipulated in your clause 5?‑‑‑Sorry, could you repeat the question.
PN1145
Would any of the members that you represent, subject to motelling, be working for employer that you haven't listed in your paragraph 5?‑‑‑No.
PN1146
In terms of the in your statement, you make sorry, let me withdraw that. In your statement, the statements you make about the difficulties that employees face regarding marriage breakdowns or living away from home for longer periods in camps etcetera, are you referring to employees that are working in remote areas where they're working generally in for a long period of time, so that's their job? Their either FIFO or DIDO workers?‑‑‑Yes, that's correct, yes.
PN1147
The statements that you make from paragraph 26 to paragraph 31 is really around FIFO and DIDO workers. That's primarily their job, FIFO and DIDO?‑‑‑Yes.
PN1148
In terms of the agreements that have been negotiated sorry, are you aware of let me rephrase that. Would you agree with me that there would be a number of agreements negotiated by the AWU that contain rest and recreation type clauses that are similar to the current award terms?‑‑‑Yes.
PN1149
Do you agree with me that the award also covers employees whose predominant work actually isn't FIFO or DIDO, but they would go on the odd occasion to do distant work?‑‑‑Yes, I would agree with that.
PN1150
I've got no further questions, thank you.
PN1151
VICE PRESIDENT HATCHER: Does anyone else wish to cross-examine this witness? No. Any re-examination?
PN1152
MR CRAWFORD: No thank you, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence Mr Sharp, you're excused and free to go?‑‑‑No worries, thank you.
<THE WITNESS WITHDREW [10.40 AM]
*** JEFFERY ALLAN SHARP XXN MS PAUL
PN1154
VICE PRESIDENT HATCHER: Mr Crawshaw, you have Mr O'Grady next?
PN1155
MR CRAWSHAW: Yes.
VICE PRESIDENT HATCHER: Mr O'Grady can you come forward to the witness box please?
<FRANCIS O'GRADY, AFFIRMED [10.41 AM]
EXAMINATION-IN-CHIEF BY MR CRAWSHAW [10.41 AM]
PN1157
MR CRAWSHAW: Your name is Frank O'Grady?‑‑‑That's correct yes.
PN1158
You are the Assistant National Secretary for the CFMEU Construction and General Division?‑‑‑That's correct, yes.
PN1159
Your work address is 500 Swanston Street, Carlton, Victoria?‑‑‑That's right.
PN1160
You've made a statement for purpose of giving evidence in these proceedings on 2 December 2016?‑‑‑Yes.
PN1161
Do you want to make any changes to that statement?‑‑‑No.
PN1162
Do you say the contents of that statement are true and correct?‑‑‑I do.
PN1163
Yes, I tender that statement.
VICE PRESIDENT HATCHER: The statement of Frank O'Grady dated 2 December 2016 will be marked exhibit 11.
EXHIBIT #11 WITNESS STATEMENT OF FRANK O'GRADY DATED 02/12/2016
PN1165
MR CRAWSHAW: To use Mr Crawford's words, that's it for me.
PN1166
VICE PRESIDENT HATCHER: Who would like to cross-examine this witness?
*** FRANCIS O'GRADY XN MR CRAWSHAW
PN1167
MR SCHMITKE: Your Honour, I think it's just AiG and Master Builders and I'll seek to - - -
PN1168
VICE PRESIDENT HATCHER: Mr Schmitke.
PN1169
MR SCHMITKE: Yes, thank you, your Honour. Mr O'Grady thank you for attending to day to provide to answer questions about your statement. If I could just ask you to go to paragraph 5 of your statement. Thank you, now, you've listed in that paragraph, examples of projects that you've visited in the last five years. It's right to say that those projects are all remote. Is that correct?‑‑‑All I'd say, except for the various refractory shut downs, they're not necessarily remote as such. Some might be close to established towns and cities.
PN1170
Some of those projects are in WA, Queensland and Tasmania, they may well have been near a regional town or something to that effect?‑‑‑The ones that come under the dot point of various refractory shutdowns, yes.
PN1171
But the others are in areas like Port Hedland, Northern Territory, yes thank you. In relation to paragraph 7, you talk about the different rostering arrangements that exist in these sites that you visited and you talk about how they've got differing arrangements in terms of returning home on weekends and things like that. Is it right to say that those differing arrangements were contained in enterprise agreements that were applicable at those particular sites?‑‑‑A lot of them are covered in project agreements, enterprise agreements. Some don't specify the period of time for rest and recreation and some do.
PN1172
Thank you, and in terms of paragraph 9, you've mentioned there that you worked on distant jobs in the late 70s and the early 80s and the usual working hours were arranged on rosters of up 12 weeks on a job before you were entitled to an R&R and a visit home. Can you explain what it is that gave rise to that particular period of time, being the default period of time? Was it founded in an award or other instrument perhaps?‑‑‑Yes, the 12 weeks come about as a result of an industrial dispute on the Burrup Peninsula.
PN1173
Sorry, I misheard that. Which Peninsula?‑‑‑Burrup, in WA. Which was the Woodside gas project. The condition at the time was just the award condition of four months and there was a strike on the job. Negotiations, and as a result of that, it was reduced to three months and then eventually two months.
*** FRANCIS O'GRADY XN MR CRAWSHAW
PN1174
As a result of the strike, did the reductions in the periods, did those reductions, were they noted in enterprise agreements that applied?‑‑‑There weren't enterprise agreements back in them days, but it was basically an award and an order of the Commission.
PN1175
Did that award or order of the Commission apply across the board or just to this particular project?‑‑‑It applied to that particular project which then set a standard for other projects.
PN1176
In paragraph 10, you make reference to matters that you've continually raised during enterprise bargaining. For example fatigue, problems of communication, mental health, feelings of isolation and so forth. On page 160. Is it right for me to say that at the point that you visited those projects, you were there negotiating an enterprise agreement?‑‑‑No, a lot of those projects are visited. Those agreements were already in place. The agreement that I was personally involved in, was the Inpex agreement for the Inpex Project. Also, I'm involved in negotiating some of the various refractory enterprise agreements. The rest of them were sort of agreements that were already in place.
PN1177
When you refer to, in paragraph 10 of the statement, saying you have continually raised these issues in the enterprise bargaining, it is the matter of R&R and the conditions that apply in remote situations. This is something that's discussed during the EBA negotiations, is that the case?‑‑‑Yes. When I say we, I mean the collective we, being the union.
PN1178
Of course, yes. You say that there is a lack of an adequate safety net that makes bargaining on these issues very difficult?‑‑‑Where are you reading from, sorry?
PN1179
Also in paragraph 10?‑‑‑Yes, that award, yes.
PN1180
Can you explain to me how it is that the safety net makes bargaining difficult in terms of these matters?‑‑‑So when not all agreements you've got a situation where the project agreement will cover the specifically will cover a period for R&R, all right. You might be negotiating then another agreement with a company that might apply in South Australia, just that they're a builder and they work around Adelaide, but they do work in other remote parts of South Australia, but not on projects as such. Or not on jobs that are covered by a project agreement.
PN1181
If I could just stop you for just one second. So, on those other sites that aren't covered by a project agreement, are they covered by any type of enterprise agreement?‑‑‑Yes, it will be covered by a company enterprise agreement.
*** FRANCIS O'GRADY XN MR CRAWSHAW
PN1182
Right, thank you, please continue?‑‑‑To try and get agreement with that company to provide for R&R conditions similar to what's involved on that you find in project enterprise agreements, it's difficult because the fact that the award standard is what it is, and they might be say, take the Adelaide example again, they might be pricing a job in Port Lincoln where they require the workers to go away. But they're reluctant to nail down a specific R&R period of time because they'll be competing against companies that just rely on the award standard themselves.
PN1183
Just in terms of the project agreements, and I think you mentioned Inpex. In terms of who provides the facilities on that particular project for accommodation and workers, can you explain how that is normally facilitated. I mean, when you go to one of these sites, you go into a camp, or there's some sort of accommodation arrangement. I would imagine that there are numerous companies sending workers into that project?‑‑‑Yes.
PN1184
And I would imagine that they wouldn't necessarily set up individual camps, that they would have one camp. So, who actually determines or who is responsible for the provision of those facilities on those project agreements?‑‑‑It would be the head contractor. In the Inpex one it was KJR with a head contractor head for that project. So, they organise to get the camp built and or the other contractors, say like UGL or John Hollands would then accommodate their employees in that. You get another different sort of situation say if you might have a, say like one of those projects in Port Hedland, they might use existing camps that might have been build some years ago in the town, as opposed to on the project. The company would rent accommodation from whoever owns that particular camp to accommodate their employees.
PN1185
In this situation, with these project agreements they tend to be in the remote areas, off shore, oil and gas, mining, those types of industries. Am I right to say that?‑‑‑Yes a lot of them, yes.
PN1186
In paragraph 11, actually, I'll withdraw that. Paragraph 12, you're talking there about the Worsley Power Station and you talk about lack of R&R at home and grievances on the project, including workers leaving the project due to unsatisfactory R&R, rosters. Was that a project covered by an enterprise agreement?‑‑‑When that job was first built it was. But the project finished and there was a major remedial work that had to be done, and because the project as such had finished, the head contractor had gone and that particular contractor had to then go back and fix his remedial work, the conditions of the project agreement no longer applied, so he relied on their company EBA. Then that just had that referred to the award as far as R&R provisions.
PN1187
Then in paragraph 14, you talk there about where employers are moving towards the option of providing the accommodation, but paying an allowance for meals. Isn't that already a provision or an option that's available under the on-site award?‑‑‑I believe it is, yes.
*** FRANCIS O'GRADY XN MR CRAWSHAW
PN1188
So, this is just a trend towards employers wanting to apply an optional, or take up an option that's already within the industry?‑‑‑Yes, what you're getting is say something like Karratha, when it was first built, it was very remote, not many facilities, the town's been built so people will go up there and work up there and they'll take the option of rather than going to the camp, you can stay in the hotel or we'll rent a few houses, but you look after your own meals and there's a meal allowance.
PN1189
I see, thank you. Paragraph 16, you refer there to gate starts?‑‑‑Yes.
PN1190
Just so I'm clear, you say gate starts are where employers want employees to give a local address to get a start on the project. What does that mean exactly?‑‑‑What it means is I'll just this as an example, right. You've worked for me, I'm a building company, you're a construction worker. You've worked for me in Melbourne. I've got some work up in Port Hedland. I say to you, you want a job, come up to Port Hedland. Give me your local address and I'll give you a start. I'm not going to start you on here, because otherwise, I've got to pay you living away from home allowance and R&R and all that sort of stuff. You encourage employee to go the place where the work is, as opposed to engaging then where you already know they actually live.
PN1191
Of course, if I was your employee, I'd speak to my local union delegate and get advice?‑‑‑That's right.
PN1192
In terms of paragraph 16 as well, you there refer to some recent examples in relation to where gate starts might have transpired including a bypass and a wind farm. You're personally aware where circumstances of that practice took place. You say that you are. Can you explain to the Commission what you did to resolve that issue?‑‑‑Well, it wasn't me personally, but what the union did - - -
PN1193
Sorry Mr O'Grady, I just want to clarify, I'm not trying to be tricky, is this an example that you're personally aware of?‑‑‑Yes. I'm personally aware of them, because I worked for the organisation that was dealing with these issues, yes.
PN1194
You didn't necessarily directly deal with that issue yourself?‑‑‑No, that's right.
PN1195
It was the organisation?‑‑‑Yes.
*** FRANCIS O'GRADY XN MR CRAWSHAW
PN1196
Okay, yes, please continue?‑‑‑So, I understand what resulted from the Nagambie Bypass was, after a lengthy process and I get involved in some Commission proceedings. Eventually workers were recognised that they had actually had addresses other than Nagambie.
PN1197
Sorry, so when you say I'm very sorry to interrupt. When you say Commission proceedings?‑‑‑Yes.
PN1198
Are you aware of what type of proceeding that was?‑‑‑I'm not exactly I'd have to check the details if you want, but yes.
PN1199
But the matter was raised before this Commission?‑‑‑Yes.
PN1200
Sorry, continue please?‑‑‑Everything was with the assistance of the Commission, and the dispute was eventually resolved. That involved actually checking the company being checking people's driver's licence details, all right, which actually showed a different address to what they'd provided when they were employed on the Nagambie job because they had previously worked for the company on other locations. That resulted in them being recognised as having being distant workers entitled to living away from home allowance. The Bald Hills one, I'm informed by the organiser of that project that a number of employees complained to him that they had to if they wanted to get employment on that job, they had to give a local address, otherwise they weren't going to get any employment at that job and a number of those workers were employed from Tasmania where the company had come from originally and that there was no resolution to those issues.
PN1201
That's my question to raise. How did you try and resolve this issue?‑‑‑The employees were reluctant to come forward on this, because they felt that their employment would be at jeopardy if they raised the issue or got the union to pursue the issue any further. I think there might have been a couple I'll just state what I did know, and that's what I know, yes.
PN1202
There was no action taken by the union to resolve this matter?‑‑‑That's right.
PN1203
Because the people were worried about the consequences of giving evidence?‑‑‑Giving evidence, yes.
PN1204
Mr O'Grady, isn't it the case that if an employer or any person provides or requires another person to provide false information in order to generate or avoid a payment or entitlement or something like that, that's essentially fraud. Is that something you'd agree with?‑‑‑Yes.
*** FRANCIS O'GRADY XN MR CRAWSHAW
PN1205
Did you call the police when you were aware of these circumstances?‑‑‑I don't think it's a matter that the police would be called for.
PN1206
No, that's not the question, did you call the police or not?‑‑‑No.
PN1207
In paragraph 17 you talk about a Lend Lease CFMEU agreement?‑‑‑Yes.
PN1208
That's got a provision in there that deals with influencing people regarding the provision of their address and that is contained within their enterprise agreement?‑‑‑Yes.
PN1209
And that generated as a result, or that came about as a result of negotiations with your union?‑‑‑Yes.
PN1210
Okay, thank you, Mr O'Grady, I've no other questions.
PN1211
VICE PRESIDENT HATCHER: Ms Paul, do you have any questions?
MS PAUL: Yes, your Honour, just a few.
CROSS-EXAMINATION BY MS PAUL [11.00 AM]
PN1213
MS PAUL: I just want to sorry, Mr O'Grady, you said that in the last five years you visited the workers on a number of projects and I think you've given some evidence you've already provided evidence that they were kind of remote projects. I just want to clarify, the employees that you were speaking to there could be properly characterised as those that permanently do FIFO or DIDO work?‑‑‑You'd characterise them as people that would regularly do that sort of work, yes. Some would say permanently.
PN1214
Okay?‑‑‑Yes.
PN1215
Okay, but we're talking about, they would move from project to project and generally be working for years in those sorts of projects, would that be correct?‑‑‑Yes, a number of them, yes. Yes.
*** FRANCIS O'GRADY XXN MS PAUL
PN1216
So the difficulties that you have outlined in your statement around that they face about working those type of projects, et cetera, and the issues pertaining to the R&R type stuff, that's really more around the description of these type of employees, isn't it?‑‑‑So could sorry, just go again?
PN1217
Sorry, the difficulties that you've mentioned in your paragraph 10 about fatigue, mental issues of feeling isolation, those sorts of things, they're really when you're talking about that, you're really talking about these type of workers, these regular FIFO/DIDO workers?‑‑‑Yes, the ones who are living away from home, yes.
PN1218
Yes. Sorry, was the answer to my question "yes"?‑‑‑Yes, yes.
PN1219
Okay, thank you. It's also true, isn't it, that it's quite common to have a four week on, one week off, roster on these projects?‑‑‑Yes.
PN1220
And I think you've already given evidence and correct me if I'm wrong, that on these projects generally the work is covered by an enterprise agreement?‑‑‑Yes.
PN1221
These are EBAs that the union has negotiated?‑‑‑I've negotiated or been involved in, yes.
PN1222
Are you aware of the CFMEU claim in relation to the living away from home provisions being sought in this Commission - - -?‑‑‑Yes.
PN1223
In this matter?‑‑‑Yes.
PN1224
So could I ask, how many agreements have the CFMEU negotiated since 2015 which includes the rest and recreation clause that's being claimed in this matter?‑‑‑As far as the exact claim that we're making?
PN1225
Yes, the exact claim that you're making, or even a similar claim. Let me be clear, it's a three week on, one week off how many agreements has the CFMEU negotiated with that sort of outcome since 2015?‑‑‑I don't think - - -
PN1226
VICE PRESIDENT HATCHER: Ms Paul, I'm lost as to what the precise question is.
PN1227
MS PAUL: Sorry.
*** FRANCIS O'GRADY XXN MS PAUL
PN1228
VICE PRESIDENT HATCHER: Are you now asking about the exact same clause or are you asking about the three in one rosters?
PN1229
MS PAUL: Sorry, your Honour, I'll clarify that question. So in terms of the agreements that the CFMEU has negotiated since 2015, can you identify the number of agreements that include the rest and recreation clause that is currently being claimed by the CFMEU in this matter?‑‑‑I'm not aware that we've actually achieved that as an outcome in any negotiations yet.
PN1230
Okay. And how many agreements has the CFMEU negotiated since 2015 which includes a LAFHA allowance of $913.88 per week or more?‑‑‑Yes. No, we haven't got that in the agreements yet either.
PN1231
Would you agree with me that the high end of the LAFHA allowances in your most recent EA's, those done from 2015, for example, are usually around $700?‑‑‑Yes, probably, in the high end of about $750, yes.
PN1232
Okay?‑‑‑And plus other allowances on top of that.
PN1233
Isn't it also correct that we would also find many agreements that have those higher allowances reverting to the current award terms in relation to R&R?‑‑‑You mean they've got the ILA(?) money but the R&R being as per the award?
PN1234
Yes?‑‑‑Yes, I'm not I think you're probably right there, yes.
PN1235
Okay. You were taken to a question earlier around your statement that there was difficulties in negotiating the R&R conditions because of the award standard, but in those agreements which you say were difficult to negotiate the R&R standard that you prefer because of the award conditions, in those agreements were you able to negotiate LAFHA payments that were higher than the award?‑‑‑On some occasions, yes.
PN1236
Thank you, Mr O'Grady, no further questions.
PN1237
VICE PRESIDENT HATCHER: Any re-examination, Mr Crawshaw?
PN1238
MR CRAWSHAW: No re-examination, your Honour.
*** FRANCIS O'GRADY XXN MS PAUL
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr O'Grady, you're excused and are free to go. Mr Reilly is next?
<THE WITNESS WITHDREW [11.06 AM]
PN1240
MR MAXWELL: Your Honour, just before going to that, Mr Schmitke has suggested that the award ought to have provided for payment of accommodation sorry, the provision of accommodation and payment of allowances. On my reading of the award that is not the case. That is part of the claim for the union to insert that provision into the award. In regard to the next witness, Mr Reilly is appearing by telephone, I understand, and I have put him on notice to expect the call so he should be available.
PN1241
VICE PRESIDENT HATCHER: Right, I'll arrange that. Mr Maxwell, I meant to ask the witnesses. Where's the Worsley Power Station?
PN1242
MR MAXWELL: The Worsley Power Station is south of Perth, in Western Australia.
PN1243
VICE PRESIDENT HATCHER: Thank you.
PN1244
THE ASSOCIATE: Hi, Mr Reilly?
PN1245
MR REILLY: Hello?
PN1246
THE ASSOCIATE: Hi, Mr Reilly, it's Helen calling from Vice President Hatcher's chambers at the Fair Work Commission. You've been - - -
PN1247
MR REILLY: How are you going?
PN1248
THE ASSOCIATE: Good, thank you. You have been telephoned into the hearing for the Construction Awards.
PN1249
MR REILLY: Yes.
PN1250
THE ASSOCIATE: I just want to check, there's no one else in the room or listening in, is there, under this - - -
*** FRANCIS O'GRADY XXN MS PAUL
PN1251
MR REILLY: No, no. I'm in my car, actually. I'm just going to pull over now. I've got some loud speakers so I'll just pull over.
PN1252
THE ASSOCIATE: Okay, perfect.
PN1253
MR REILLY: No worries. Can you hear me clearly? Can I keep it on the loud speaker or do you want me to turn it onto the phone?
PN1254
THE ASSOCIATE: Yes, we can hear you clearly.
PN1255
VICE PRESIDENT HATCHER: All right. Yes, well, Mr Reilly, it's the Fair Work Commission. We'll now administer the affirmation to you and then we'll ask Mr Maxwell to ask you some questions.
PN1256
MR REILLY: No worries.
PN1257
VICE PRESIDENT HATCHER: Could you please state your full name and address?
MR REILLY: My full name is Dean Leslie Reilly, (address supplied).
<DEAN LESLIE REILLY, AFFIRMED [11.09 AM]
EXAMINATION-IN-CHIEF BY MR MAXWELL [11.09 AM]
PN1259
VICE PRESIDENT HATCHER: All right, Mr Maxwell.
PN1260
MR MAXWELL: Thank you, your Honour. Mr Reilly, it's Stuart Maxwell from the CFMEU?‑‑‑How are you going?
PN1261
Mr Reilly, have you prepared a statement for these proceedings?‑‑‑I did, yes.
PN1262
And is that statement some 18 paragraphs long?‑‑‑Yes, that's correct.
PN1263
And is that statement correct, to the best of your knowledge?‑‑‑It is, yes, of of personal experience,
*** DEAN LESLIE REILLY XN MR MAXWELL
PN1264
Are there any changes you wish to make to the statement?‑‑‑No.
PN1265
Your Honour, I seek to tender the statement of Mr Reilly dated - - -
PN1266
VICE PRESIDENT HATCHER: Mr Reilly, do you have a copy of the statement with you?‑‑‑I do.
PN1267
It might be advisable if you can get it out so that Mr I suspect you'll be asked some questions about what's in it?‑‑‑All right, no worries.
The witness statement of Dean Reilly dated 2 December 2016 will be marked exhibit 12.
EXHIBIT #12 WITNESS STATEMENT OF DEAN REILLY DATED 02/12/2016.
PN1269
MR MAXWELL: Mr Reilly, I have no further questions for you at this stage. You will now be asked questions by the different employer organisations, AiG and MBA?‑‑‑Yes, not a problem.
VICE PRESIDENT HATCHER: All right, Mr Schmitke.
CROSS-EXAMINATION BY MR SCHMITKE [11.11 AM]
PN1271
MR SCHMITKE: Thank you, your Honour. Mr Reilly, my name is Sean Schmitke from the Master Builders Australia. I'm representing that organisation in this proceeding and our member employers. How are you this morning?‑‑‑Good, thank you.
PN1272
Thank you for making time to answer questions about your statements, and just to confirm, you do have a copy with you?‑‑‑I do, mate, yes.
PN1273
You've got it in front of you, and if I take you to a paragraph you'll know exactly which one I'm talking about?‑‑‑Yes.
PN1274
Yes, and I assume you're not driving?‑‑‑No, no, I'm not driving, no.
*** DEAN LESLIE REILLY XXN MR SCHMITKE
PN1275
Good. Good. Okay, Mr Reilly, just at paragraph 3, you talk about some projects or jobs which have required you to live away from home during your time working in the construction industry?‑‑‑Yes.
PN1276
And there's three examples provided. The first dot point deals with the Tarcutta bypass?‑‑‑Yes.
PN1277
And the Sapphire to Woolgoolga road construction projects. Over the page, the second dot point talks about an LMG project, and the third dot point talks about a separate LNG project?‑‑‑Yes.
PN1278
Now just in relation to those last two dot points, they were both fly-in/fly-out operations, or arrangements, am I right to say that?‑‑‑Yes, they were, yes.
PN1279
And are you aware if those particular projects were subject to an enterprise agreement or did they apply the award?‑‑‑At the very start of the LMG project in Roma I was working for a labour hire company, so I couldn't comment whether they were under an agreement or not. I'm not a hundred per cent sure - - -
PN1280
Okay?‑‑‑Looking, but I was only with the labour hire company for about the first five months and then I moved onto McDonnell Dowell's enterprise bargaining agreement.
PN1281
All right, and there was an enterprise bargaining agreement that then applied on that project?‑‑‑There wasn't an Greenfields agreement, to my knowledge, it was an enterprise bargaining agreement under McConnell Dowell.
PN1282
Okay, thank you. And when you worked on the Tarcutta bypass how far was that from your normal residence?‑‑‑At the time I was living in Picton and Tarcutta was about four hours drive from memory, four hours drive to where I was working.
PN1283
About four hours, thank you. And so Tarcutta is I think I've driven through Tarcutta, and in fact that bypass is very good, so thank you for the work you did on that, but - - -?‑‑‑No, it's not it's not finished.
PN1284
Tarcutta, it's on the Hume Highway, isn't it?‑‑‑Yes, yes, that's correct, yes.
PN1285
So lots of traffic going through it, even though it's a small town?‑‑‑Yes.
*** DEAN LESLIE REILLY XXN MR SCHMITKE
PN1286
Yes, and there's facilities in that town you know, I think there's a pub, from memory, there's a couple of good cafes, bakeries, is that right?‑‑‑Yes, that's correct, yes.
PN1287
And that's fundamentally different, isn't it, to working, say, in the remote areas of, you know, the the Inpex Ichthys Project?‑‑‑Well, the Inpex project was in Darwin itself, just out of Darwin, so I would say Tarcutta was a bit different. Tarcutta's a sort of regional town, whereas the Inpex project and the camp, the Inpex project was pretty much, you know, within 20 minutes to to the main sort of area of Darwin.
PN1288
Okay?‑‑‑So the facilities in Darwin were far more accessible than they were at Tarcutta. Tarcutta, if you wanted to actually sort of go to a decent shopping centre or do anything like that you had to sort of travel to one of the major towns.
PN1289
Yes, and the Tarcutta project, was there an enterprise agreement that applied in that particular job?‑‑‑I was actually working for on that job I was working for a landscape company and that was pretty much under the award.
PN1290
But are you aware of whether or not there was an enterprise agreement that applied otherwise?‑‑‑For the actual Leighton's job, for the company that was working the job, doing all the structures and the roadworks there was an enterprise bargaining agreement but the company I was working under at the time didn't have a bargaining agreement, no.
PN1291
Okay, than you. And then the Sapphire to Woolgoolga project - - -?‑‑‑Yes.
PN1292
That was about a 25 kilometre stretch, am I right to say that?‑‑‑A bit bigger than that but yes, you're pretty much on the money. About 35, I think it was, but yes.
PN1293
And that finished up at Woolgoolga, is that correct?‑‑‑Yes, it was the Woolgoolga bypass. It went around Woolgoolga. It finished at Egan's(?) Road, north of Woolgoolga, and went all the way down to Old Coast Road down near Sapphire, the bottom end of Sapphire.
PN1294
Mr Reilly, you live in Woolgoolga at the moment, is that correct?‑‑‑I do, that's correct, yes.
PN1295
And did you live in Woolgoolga at the time you worked on this project?‑‑‑No, I didn't. I lived in Ipswich, Rosewood, Queensland.
*** DEAN LESLIE REILLY XXN MR SCHMITKE
PN1296
In Ipswich, okay?‑‑‑Yes.
PN1297
How did you find out about this project, the Sapphire to Woolgoolga projects?‑‑‑When you work in civil construction you obviously have a network, you know, you work with mates all over the country. I worked from worked from the M7 project in Sydney to the Gateway in Queensland and the Ipswich Motorway, which is what I was working on at the time, and one of the leading hands that I was leading hands with on the Ipswich Motorway went down to Sapphire to Woolgoolga as a foreman and he he wanted me to come down there and run the bridges with him and I went down there.
PN1298
Thank you. The M7 is also a great project, just for your information?‑‑‑Yes, yes. Yes, I know.
PN1299
So essentially though, Mr Reilly, you were not forced to go and work on these projects but you knew that the work was there and you wanted to go and work there, is that right?‑‑‑Yes, that's correct, the nature of the job that we will or the nature of construction, obviously you've got to go where the work is and at the time, as you'd be aware, work after the M7 dried up around Sydney pretty heavily for construction, especially civil construction and but most of the work was heading north into Queensland then a lot of guys that left the M7 went to Queensland. I had many mates go up there and and then I ended up following afterwards, and then then went onto the Ipswich job well, the Origin Alliance, which it was called, which is the Ipswich Motorway upgrade, but the nature of the beast, the nature of the job that you do in construction is following the work, and you're always working away generally from where you would like to be. You can't pick and choose the jobs, you know. You've got to follow where the work goes.
*** DEAN LESLIE REILLY XXN MR SCHMITKE
PN1300
Thank you, Mr Reilly. That last comment you just made, you can't pick and choose the jobs, that's not quite true, is it? Because you can decide, I'm not going to go and work on this project?‑‑‑Well, you there's no guarantee that you're going to get a job, so for example, when I moved to Coffs Harbour it was a good it was a happy medium for my family in Sydney, which is my mum and dad, and brothers and siblings, and us living in Queensland, my parents weren't able to see the kids so we moved to Coffs, which was a happy medium and at the time the work was sort of in between Queensland and where we were living, and when we moved down to Sapphire, to Woolgoolga, I ended up a year after being on Sapphire to Woolgoolga, ended up leaving and going and doing FIFO work because the the demand was going to FIFO, and after Sapphire there wasn't going to be, you know, many jobs at around that time that I'd be able to go to unless I unless I moved back to Sydney, so I started doing FIFO in and out of Coffs Harbour. So like I said, it's sort of there's no guarantee you're going to get a construction job. There's no guarantees around. It's sort of like, you know, not what you know, who you know, and when the opportunities arise you've got to pounce on them, otherwise you miss out.
PN1301
Thank you?‑‑‑It's not exactly the case where you can just sort of get work wherever, you know?
PN1302
Thank you, Mr Reilly, but it's not necessarily the case that you're forced to go to these locations, you choose to go to these locations and, in fact, if you want you could choose to work in another industry closer to where you live. That's right, isn't it?‑‑‑Yes and no. I'm my I'm a carpenter by trade but predominantly my carpentry skills are line form work, not housing. Even though I did my trade in housing, most of my adult work's been formwork and - - -
PN1303
Mr Reilly - - -?‑‑‑And (indistinct) works.
PN1304
Sorry, Mr Reilly, I'm just going to interrupt you there. I'm very sorry for doing so?‑‑‑You're right.
PN1305
But my question is, there's nothing to stop you, if you wanted to, moving into a different career. You don't necessarily have to be a tradesperson. If you wanted to become a policeman or nurse, you could have pursued other type of options like that, or pursued work opportunities that were more close to where you lived, is that right?‑‑‑If I wanted to be a policeman I would have became a policeman. I want to be I wanted to be a carpenter so, you know, I like formwork. I like building big structures. That's what I like to do, and that's the work that I do. If I wanted to do another career I'd do another career.
PN1306
Okay, so it's only - - -?‑‑‑But you know, not - - -
PN1307
Sorry, Mr Reilly, it's because you like the work that you've been pursuing these various jobs around the country?‑‑‑That's that's correct.
PN1308
Okay, thank you. Now just in that third dot point I asked you sorry, the first dot point in paragraph 3 that I asked you about before - - -?‑‑‑Yes.
PN1309
You said there that you were you used the phrase, "I was required to live away from my family for weeks at a time and before I was allowed to return home to visit my family"?‑‑‑Yes.
*** DEAN LESLIE REILLY XXN MR SCHMITKE
PN1310
Now are they the right words to use in that respect? I wasn't the case that those particular arrangements were governed either by an award or an enterprise agreement?‑‑‑Yes, when I first moved down when I first went for the position on the job, I went for a carpenter's position on the bridges. When I when I got told about the job and told when to start, when I came down they'd actually changed I suppose it was a negotiation fault of mine when I went in for the interview but they actually tried to employ me as a labourer and sort of sort of I had not choice at that time because I'd resigned from my other job. I was on the understanding that we had a handshake agreement as to what I was coming down as when I went for the interview and unfortunately when I went for the interview I didn't sign any paperwork to say, well, that's what I was going to be starting as, and when I went when I actually started they signed me up as a labourer for the first three months before I became I carpenter. I wasn't I wasn't able to claim living away from home because they wouldn't give it to me for some reason and I needed to provide an address as soon as possible of a local residence, so I moved into Moonee Caravan Park and had a tent where I lived for about the first the first few months before we were able to move down from Rosewood and I was travelling back on my on my Sundays.
PN1311
Mr Reilly, sorry - - -?‑‑‑Yes.
PN1312
Sorry to interrupt you - - -?‑‑‑You're right.
PN1313
You've answered the question there and I know we're all very conscious of time, but if I could just move on?‑‑‑Sure.
PN1314
Just to clarify, your only qualification is as a tradesperson?‑‑‑Yes.
PN1315
Yes?‑‑‑Yes.
PN1316
So in paragraph 4 of your statement you talk there about, you've found that workers that you've worked away with are far more likely to have mental issues, like anxiety, depression and aggressive behaviour?‑‑‑Yes.
PN1317
But you're not qualified to diagnose those particular mental conditions or mental health concerns, so is it the case that they told you about them?‑‑‑Yes.
*** DEAN LESLIE REILLY XXN MR SCHMITKE
PN1318
So they volunteered to you that they are suffering from anxiety?‑‑‑When when you work away in situations where you're in camps and when you're away from your family, the guys you know, we always get around and, you know, you might play poker, you might have a couple of beers after work or whatever, and people after a while start to develop a relationship with you and they and they tell you of, you know, things that have happened to them over the years. Now I was probably one of the guys that in amongst the FIFO community that had only been doing FIFO for a short period of time, as opposed to some guys that were career FIFO workers or they'd worked away on certain jobs under certain conditions for, you know, however long, and and most of them had been divorced, a lot of them had suffered anxiety, some of them were on medications - - -
PN1319
Okay, and the - - -?‑‑‑And due to family break-ups and violent behaviour or whatever.
PN1320
Mr Reilly, sorry to interrupt you again - - -?‑‑‑Yes.
PN1321
But my question to you was, these people told you that information and that's how you found out, wasn't it?‑‑‑Yes, yes. Yes.
PN1322
Okay?‑‑‑Yes, that's correct, yes.
PN1323
Now just paragraph 5 - - -?‑‑‑Yes.
PN1324
You describe the experience with FIFO workers as becoming institutionalised, like people who have been jailed for periods of time?‑‑‑Yes.
PN1325
And then, well, is that's not right. I mean, you're not locked up or physically restricted from leaving a site?‑‑‑Yes, we were.
PN1326
So you were - - -?‑‑‑Yes, we were. Sorry, say that again, sorry?
PN1327
So you were physically restricted from leaving the premises?‑‑‑Yes, we when we were in camp it's in the Sandfold's(?) camp we weren't allowed to go out of the camp boundaries at all. We had to get permission to even if you were to go into town to pick up requirements for the job, like parts for machinery, or whatever the case is, if you needed tools, or whatnot, you had to get permission. Youse weren't allowed out of a night time, we were restricted to the camp. We were in the middle of a, like a cattle station, which was about an hour and a half north-east of Roma, and yes, that was it, mate. We we lived and breathed in a 600 man camp. There was a very small gym, a small wet mess and a food hall. There was absolutely pretty much bugger all to do. So yes, and then - - -
PN1328
So why did you want to be leaving?‑‑‑Well, what do you mean by that?
*** DEAN LESLIE REILLY XXN MR SCHMITKE
PN1329
Well, why would you want to leave the camp if there was nothing to do outside of the camp and you were an hour and a half away from Roma?‑‑‑Well, we wanted to go into town, we wanted to go to the local pubs, just get out of the camp for a while, go shopping, you know, do things that you want to do, but pretty much, unless you there was a little tiny office that provided toothpaste and toothbrushes and bits and pieces for you inside the camp, so if you ran out of your basic, you know, needs you could buy them there but apart from that, you weren't allowed out.
PN1330
And when you say you weren't allowed out, you mentioned before that you had to ask permission, or tell them that you were leaving, so - - -?‑‑‑Yes.
PN1331
Was it that you were stopped from leaving or that you had to ask permission to leave?‑‑‑You would have to get permission to leave but you'd have to have your if your excuse was you wanted to go shopping or you wanted to go to the pub for a meal or you wanted to go into town for the night, they wouldn't allow you to go. It had to be a legitimate reason for you to go. Like, for example, a lot of the guys that I worked with there were footballers, like including myself, who played touch football. To try and keep ourselves fit we'd train in the gym and we asked if we could go play for the local club, just because we were away for three weeks, give us something to do, get us out of the camp for a bit, and they wouldn't allow us to do it.
PN1332
Thank you?‑‑‑There was lots of things there where we were restricted.
PN1333
So Mr Reilly, I also would like to take you please to just paragraphs 13 14 and 15 of your statements and in general terms, you're describing there working in regional areas and then flying to and from your normal residence?‑‑‑That's correct, yes.
PN1334
Yes, and in those three paragraphs they describe circumstances where you've had flights delayed or the flight, you know, goes through another capital city before it reaches its destination and things like that, can you see those type of things?‑‑‑Yes.
PN1335
Yes?‑‑‑Yes.
PN1336
Now would you agree with me that they are not things that are within the control of your employer, they're within the control of an airline is that right?‑‑‑Well, I mean, there's a pretty big argument there with when we went to Darwin the main reason for me relocating to Darwin was because of the stretch on the - - -
*** DEAN LESLIE REILLY XXN MR SCHMITKE
PN1337
Mr Reilly, I'm going to interrupt you again, I'm very sorry but my question - - -?‑‑‑Yes, yes, yes.
PN1338
Just in the interests of time, is - - -?‑‑‑Yes.
PN1339
Whether or not any delays in terms of flights, or what flight path you took and whether it had a stop point in another capital city, was that something that was controlled or could be controlled by your employer?‑‑‑Well, probably not controlled by the employer but mismanagement from the from the project - - -
PN1340
Okay thank you. And actually, Mr Reilly, that's all the questions I have for you. Thank you very much for making the time available again. It's always good to speak to a fellow infrastructure enthusiast, thank you?‑‑‑No worries, mate. Thank you.
VICE PRESIDENT HATCHER: Ms Paul, do you wish to ask any questions?
CROSS-EXAMINATION BY MS PAUL [11.30 AM]
PN1342
MS PAUL: Yes, your Honour. Thank you, Mr Reilly, my name is Vasiki(?) Paul and I'm from Ai Group?‑‑‑How are you going?
PN1343
Good, thank you. I hope we won't keep you too long?‑‑‑No - - -
PN1344
Can I just ask, you've given evidence around that you worked in for 20 years in the construction sector?‑‑‑Yes.
PN1345
How long have you actually worked in civil construction?‑‑‑Civil construction would have been about 13, 14 years.
PN1346
Fourteen years, okay. I wanted to clarify a couple of things?‑‑‑Yes.
PN1347
You say you worked as a FIFO worker for five months in Darwin in 2014, is that right?‑‑‑I worked I worked in Darwin for three years but I was I was as a FIFO worker for five months, yes. Yes, about five months, yes.
PN1348
Five months, and that was at the Inpex Project?‑‑‑That was the Inpex Project, yes.
*** DEAN LESLIE REILLY XXN MS PAUL
PN1349
Then from when you say after that five months did you continue on with the Inpex Project?‑‑‑Yes, yes. Yes. My family moved up and we got a place of residence in Darwin and then - - -
PN1350
Okay?‑‑‑Continued.
PN1351
Okay. So apart from the Darwin scenario, I think you've also mentioned that you were FIFO in terms of the Santos project in 2013/14, is that right?‑‑‑Yes, the Upstream GLNG Project, it was called.
PN1352
Yes, so you were a FIFO worker there?‑‑‑I was, yes.
PN1353
How long was that for?‑‑‑I believe it was about 18 months, thereabouts.
PN1354
Okay, so you were working as FIFO for 18 months?‑‑‑Yes, thereabouts, yes.
PN1355
And that was where you were living, on a camp?‑‑‑I was living in a camp, yes.
PN1356
So apart from the Darwin and the Santos, was there any other times you were working as a FIFO worker?‑‑‑Not fly-in/fly-out, no.
PN1357
Okay. So was there times you were working as a DIDO worker?‑‑‑Drive-in/drive-out, yes.
PN1358
And where was that?‑‑‑Sapphire to Woolgoolga.
PN1359
Okay?‑‑‑To start with, the first first couple of months.
PN1360
Yes?‑‑‑And that one was drive-in/drive-out.
PN1361
So that was the first couple of months as a DIDO worker, is that right?‑‑‑Yes, that's correct, yes.
PN1362
Okay. Now you gave evidence around the rosters sorry, you say in paragraph 5 that about three to four weeks at a time is that a reference to the rosters, were you on there three or four weeks at a given - - -?‑‑‑No, no.
*** DEAN LESLIE REILLY XXN MS PAUL
PN1363
So what was your - - -?‑‑‑There was no roster on that job.
PN1364
Okay?‑‑‑There was no roster. It was a six day week but at the time the project was ramping up and they were requiring workers to do seven day seven days a week at the time and it was it was because I was only new to the job and they were just started, and the requirements of the job, I just I was doing - - -
PN1365
Yes, so - - -?‑‑‑My first available Sunday off, I would drive back home to Queensland, see the family and then drive back down and live in my tent for the next however many weeks before I got another break.
PN1366
Sorry, Mr Reilly, I just wanted to clarify, when you talk at paragraph 5 - - -?‑‑‑Yes.
PN1367
And working on a camp, are you referring to your time on the LNG compressor or on your time in Darwin?‑‑‑No, that was that was from all my experience with FIFO work and guys that continually work away from their families, just because it's - - -
PN1368
Okay, so when you were working at the Darwin project, the Inpex one - - -?‑‑‑Yes.
PN1369
Did you have a rest and recreation type process where you worked for four weeks, or three weeks and then you had a week off, is that how it worked?‑‑‑Yes. Yes, that's right, yes.
PN1370
So in Darwin it was, say, four weeks on, would that be right, and one week off?‑‑‑Four four weeks on, one week off, yes.
PN1371
And in terms of the Santos project, was that the same as well, four weeks on, one week off?‑‑‑No, that was three weeks straight, so you didn't get a break at all during the three weeks, and then you went home for a week.
PN1372
Okay. And so I may have misheard but when you were asked a question you indicated that you were working under the award when you were working at the Inpex project, is that correct?‑‑‑No, no, not on the Inpex project. The Inpex project was a Greenfields agreement but when I originally went to Roma I was originally employed there under a labour hire company to build a camp, to start with.
*** DEAN LESLIE REILLY XXN MS PAUL
PN1373
Okay, thank you?‑‑‑And then and then I got put down onto the compressor pad.
PN1374
Now the other FIFO workers that you talk about living on camps, et cetera, they were workers that generally just did FIFO, is that correct? They were working from project to project but generally FIFO, is that correct?‑‑‑No, not not everybody. There were guys that were sort of guys that had been doing it for a long time and then there was guys just like me, trying to get a bit of a head up for the family, you know, just doing the work because it's decent money and you're just trying to make a decent living and, yes, get in front while you can, sort of thing, while the work's there.
PN1375
I've no further questions, Mr Reilly, thank you.
PN1376
VICE PRESIDENT HATCHER: Any re-examination, Mr Maxwell?
PN1377
MR MAXWELL: No, your Honour.
VICE PRESIDENT HATCHER: All right, thank you very much, Mr Reilly, you're now excused which means you can simply hang up the phone?‑‑‑Yes.
<THE WITNESS WITHDREW [11.36 AM]
PN1379
We're going to take a morning tea adjournment for approximately 10 to 15 minutes, and then we'll resume with the two Darwin witnesses.
SHORT ADJOURNMENT [11.36 AM]
RESUMED [11.55 AM]
VICE PRESIDENT HATCHER: Mr Burling in Darwin, you're the next witness so the court officer will just administer the affirmation.
<JOSHUA WAYNE BURLING, AFFIRMED [11.55 AM]
EXAMINATION-IN-CHIEF BY MR MAXWELL [11.56 AM]
PN1381
VICE PRESIDENT HATCHER: Mr Maxwell.
*** JOSHUA WAYNE BURLING XN MR MAXWELL
PN1382
MR MAXWELL: Thank you, your Honour. Mr Burling, it's Stuart Maxwell from the CFMEU. Have you prepared a statement for these proceedings?‑‑‑I have.
PN1383
Do you have a copy of that statement with you?‑‑‑I do.
PN1384
Is that statement some nine paragraphs in length?‑‑‑That is correct.
PN1385
Is that statement correct to the best of your knowledge?‑‑‑Yes, it is.
PN1386
Your Honour, I seek to tender the statement of Mr Burling.
VICE PRESIDENT HATCHER: The statement of Joshua Burling dated 6 December 2016 will be marked exhibit 13.
EXHIBIT #13 WITNESS STATEMENT OF JOSHUA WAYNE BURLING DATED 06/12/2016
PN1388
MR MAXWELL: Your Honour, I have no questions for Mr Burling.
VICE PRESIDENT HATCHER: All right. Who wishes to cross‑examine this witness?
CROSS-EXAMINATION BY MS PAUL [11.56 AM]
PN1390
MS PAUL: Thank you, your Honour. Mr Burling, you've indicated you've never worked as a FIFO worker, is that correct?‑‑‑That's correct. No, I've never worked as a FIFO worker.
PN1391
The evidence you've provided in your witness statement, that's based on your experience is it as a worker, is that correct?‑‑‑That's correct, yes, with the FIFO workers.
PN1392
In terms of these FIFO workers that you've worked for, has that been in relation to the Inpex project?‑‑‑That's correct.
PN1393
The evidence you're really giving is around FIFO workers on the Inpex project?‑‑‑That's correct, yes.
*** JOSHUA WAYNE BURLING XXN MS PAUL
PN1394
With these long term FIFO workers, they're there for years or for a whole project then they go from project to project, would that be the type of workers you're talking about?‑‑‑Yes, and a mixture of some who just do that project to - like have just started.
PN1395
When you were working on the Inpex project, which is the evidence you've provided, you were a local worker?‑‑‑That's correct, yes.
PN1396
Was your employment covered by an enterprise agreements?‑‑‑It's Greenfield's agreement on that job.
PN1397
On that job, is it based on a four week roster on and one week rostered off?‑‑‑That's correct.
PN1398
That agreement was negotiated by the CFMEU, that's correct isn't it?‑‑‑They have a signatory to it, yes.
PN1399
The FIFO workers that you referred to in your statements, their employment was also covered by this enterprise agreement?‑‑‑That's correct, yes.
PN1400
In terms of the evidence you've provided at paragraph six of your statement and, I guess, the tough times that these employees are facing, you're solely giving evidence in relation to those employees on that Inpex project?‑‑‑The employees that I had seen and, yes, and spoken to, yes.
PN1401
I've no further questions, thank you, Mr Burling.
PN1402
VICE PRESIDENT HATCHER: Is there any re-examination, Mr Maxwell?
PN1403
MR MAXWELL: No, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Burling. You're excused and now free to leave?‑‑‑Thank you.
<THE WITNESS WITHDREW [12.00 PM]
PN1405
VICE PRESIDENT HATCHER: Is Mr Cummins available in Darwin now?
*** JOSHUA WAYNE BURLING XXN MS PAUL
PN1406
MR MAXWELL: Your Honour, Mr Cummins is giving evidence by telephone.
PN1407
VICE PRESIDENT HATCHER: I see.
PN1408
MR MAXWELL: Because at the time he contacted me he was going to be in Darwin but he's now in Cairns but he is standing by his telephone.
VICE PRESIDENT HATCHER: All right, well we'll ring Mr Cummins in.
<ROLAND CUMMINS, AFFIRMED [12.01 PM]
EXAMINATION-IN-CHIEF BY MR MAXWELL [12.01 PM]
PN1410
VICE PRESIDENT HATCHER: Mr Maxwell.
PN1411
MR MAXWELL: Thank you, your Honour. Mr Cummins, have you prepared a statement for these proceedings?‑‑‑Yes.
PN1412
Do you have a copy of the statement with you?‑‑‑Yes.
PN1413
Is that statement eight paragraphs long?‑‑‑Yes.
PN1414
Is that statement true and correct to the best of your knowledge?‑‑‑Yes.
PN1415
Your Honour, I seek to tender the witness statement of Roland Cummins.
VICE PRESIDENT HATCHER: Yes, the witness statement of Roland Cummins dated 6 December 2016 will be marked exhibit 14.
EXHIBIT #14 WITNESS STATEMENT OF ROLAND CUMMINS DATED 06/12/2016
PN1417
MR MAXWELL: I have no questions at this stage, your Honour.
*** ROLAND CUMMINS XN MR MAXWELL
*** ROLAND CUMMINS XXN MS PAUL
VICE PRESIDENT HATCHER: Ms Paul?
CROSS-EXAMINATION BY MS PAUL [12.02 PM]
PN1419
MS PAUL: Thank you, your Honour. Mr Cummins, my name is Vasiki(?) Paul and I'm from Ai Group. Just got a couple of short questions for you. Can I - - -
PN1420
VICE PRESIDENT HATCHER: Just do you want to check, Mr Cummins, can you hear Ms Paul?‑‑‑Yes.
PN1421
All right, thank you.
PN1422
MS PAUL: Mr Cummins, when did you start working for the union?‑‑‑Just over three years ago.
PN1423
I understand from your statement that you've not worked as a FIFO or DIDO worker but the evidence you've given is in relation to FIFO and DIDO workers that you've worked with, is that correct?‑‑‑Yes, that's correct.
PN1424
These FIFO and DIDO workers that you have worked with, where have you worked with them?‑‑‑In Darwin and Perth.
PN1425
Was this in relation to projects that they were on?‑‑‑Yes.
PN1426
Which projects were these?‑‑‑The Inpex project and I worked with fly out workers on the Gorgon project.
PN1427
On the Gorgon project, okay. It's only the Inpex and the Gorgon project that you're talking about?‑‑‑They're the people I've worked with but I know a lot of people have worked fly in/fly out.
PN1428
Thank you?‑‑‑But they're the people I've worked directly with.
PN1429
That's what your evidence is based on?‑‑‑Yes.
PN1430
These workers that were working FIFO and DIDO on Inpex and Gorgon, sorry, they were primarily FIFO and DIDO workers, so they generally just worked project long term part projects?‑‑‑No, not - sorry, can you ask that question again? I'm a bit confused what you're asking.
*** ROLAND CUMMINS XXN MS PAUL
PN1431
Yes, sorry. These workers that you've referred to, they're generally sort of the long term FIFO/DIDO, they've worked on a project for an extended period of time then maybe leave and go and work on another project, so that's primarily the work that they did?‑‑‑Some of them, yes, and others, no. That's not 100 percent correct. Some of them would chase - go fly in/fly out work and some of them would be forced to go fly in/fly out work because there'd be no work in their areas where they live.
PN1432
Yes, but essentially they were working - they weren't going off and working for another employer back in a particular state or region, they'd go off to another project for whatever reason. Mr Cummins?‑‑‑Some of the times but not all of the time.
PN1433
Were the terms of the employment of these workers in the Inpex and Gorgon covered by enterprise agreements?‑‑‑Yes.
PN1434
Were these enterprise agreements negotiated by the union?‑‑‑Yes.
PN1435
It would be correct to say that the enterprise agreement ‑ sorry, I withdraw that. On these projects, was the rest and recreation roster, for the use of a better term, based on a four week on and one week off?‑‑‑Yes. Actually, sorry, in the agreement of the Inpex project, they worked - sorry, they worked a four and one but in the agreement there was no roster.
PN1436
Finally in paragraph four, you use the term - sorry, I'll withdraw that. I've no further questions, thank you.
PN1437
VICE PRESIDENT HATCHER: Ms Paul. Any re-examination, Mr Maxwell?
PN1438
MR MAXWELL: No, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Cummins, you're excused and you're free to go which means you can just hang up the phone?‑‑‑Thank you.
<THE WITNESS WITHDREW [12.08 PM]
PN1440
VICE PRESIDENT HATCHER: Is Mr O'Hearn now available?
*** ROLAND CUMMINS XXN MS PAUL
PN1441
MR CRAWSHAW: I'm sorry?
PN1442
VICE PRESIDENT HATCHER: Mr O'Hearn?
PN1443
MR CRAWSHAW: No, he's here, your Honour. We're just trying to find him.
VICE PRESIDENT HATCHER: Yes, all right.
<LIAM O'HEARN, AFFIRMED [12.08 PM]
EXAMINATION-IN-CHIEF BY MR CRAWSHAW [12.10 PM]
PN1445
MR CRAWSHAW: Your name is Liam O'Hearn?‑‑‑Correct.
PN1446
You're employed as the organiser apprenticeship officer with the Victorian/Tasmanian branch of the CFMEU construction and general division?‑‑‑Correct.
PN1447
Is that right?‑‑‑Yes, correct, yes.
PN1448
Your work address is (address supplied)?‑‑‑Yes, yes. I also - I work at (address supplied). That's where I've got some of my office stuff as well. We train apprentices there.
PN1449
You've made a statement for the purpose of giving evidence in these proceedings?‑‑‑Yes.
PN1450
Are there any changes you want to make to that statement?‑‑‑Just a couple. In paragraph two about my background, it says there "laying preparatory framework for new houses". It was old houses.
PN1451
We substitute - - -?‑‑‑New for old.
PN1452
- - - the word "old" for the word "new"?‑‑‑Yes, and industry concerns, paragraph 11, it says my current role I've been doing for eight years. It's been over 10.
PN1453
We substitute the number 10 for the number eight?‑‑‑No, number eight for number 10.
*** LIAM O'HEARN XN MR CRAWSHAW
PN1454
Sorry, number eight. Sorry, no. Number 10, you want to ‑ you confused me?‑‑‑I've been there 10 years not eight years.
PN1455
Yes, okay. Taking into account those changes, is the contents of your statement true and correct?‑‑‑Yes.
PN1456
Yes, thank you. That's the evidence-in-chief.
VICE PRESIDENT HATCHER: Yes, the statement of Liam O'Hearn undated will be marked exhibit 15.
EXHIBIT #15 WITNESS STATEMENT OF LIAM O'HEARN UNDATED
VICE PRESIDENT HATCHER: Mr Schmitke.
CROSS-EXAMINATION BY MR SCHMITKE [12.11 PM]
PN1459
MR SCHMITKE: Thank you and thank you, Mr O'Hearn, for making yourself available to answer some questions about your statement today. Can I just clarify, what's your actual job title at the moment?‑‑‑Apprenticeship officer.
PN1460
Apprenticeship officer?‑‑‑That's what's on the card, yes.
PN1461
You say in paragraph one you're employed as a - paragraph one of your statement, that you're employed as an organiser - - -?‑‑‑Yes, well it's an organiser's role but the actual role is apprenticeship officer. Where organisers have geographical areas, I just look after apprentices.
PN1462
I see, and because I did a Google search on you last night, as we all do, and all the information suggests that your title was apprenticeship liaison officer?‑‑‑On my card it says apprenticeship officer, it hasn't got liaison on it.
PN1463
Thank you. Do you have any other roles involving training, apprenticeships, vocational, education, other than your employment with the CFMEU or alternatively through your employment with the CFMEU and if - - -?‑‑‑Yes.
PN1464
Yes, and can you tell me who those bodies are?‑‑‑Who I work for? I mean who - - -
*** LIAM O'HEARN XXN MR SCHMITKE
PN1465
Well for example - - -?‑‑‑Can you expand on that?
PN1466
- - - because you're involved in apprenticeships and working for a union, do you get involved in any other government bodies, advisory bodies?‑‑‑Yes, yes. The VRQA often consult us. I'm also on steering committees where they re-accredit trades.
PN1467
We'll just stop you for a second. The first one's the VAQA?‑‑‑VRQA.
PN1468
VRQA?‑‑‑Yes.
PN1469
Sorry, I'm a New South Welshman so that stands for?‑‑‑Victorian Regulation Qualification Authority.
PN1470
Thank you?‑‑‑Just currently, just for instance, we're looking at carpentry and pre-apprenticeships which is certificate two. Obviously my expertise is in carpentry but the pre-apprenticeship, a lot of the units are common in it, so we're looking at that to see what's relevant, what can be changed, obviously to make it more relevant because trade does move along a bit with technology.
PN1471
Who are the other bodies that you're involved with?‑‑‑I'm also on the Inklink(?), drugs and alcohol and that's about it at the moment, well I can think of.
PN1472
Well maybe I might assist. Does the phrase, is it WynBay(?)?‑‑‑WynBay(?), yes, yes, I'm on the committee and management there.
PN1473
VICE PRESIDENT HATCHER: Slow down. What's that word?
PN1474
MR SCHMITKE: Well, I - - -?‑‑‑WynBay, it's a local learning/employment network for around Werribee. I'm on the committee and management there as well, sorry.
PN1475
What does that organisation do?‑‑‑We help so youth at risk, so they run programs in schools and also out of schools, also looked at parents at risk. So sometimes they look at where parents are unemployed and it's systemic through the generations, so yes, they do a lot of variety of work, work experience. They organise work experience at schools for different trades and occupations.
*** LIAM O'HEARN XXN MR SCHMITKE
PN1476
Thank you. Mr O'Hearn, when an apprentice starts working on a construction site, there's the normal induction processes that apply across the board, isn't there, in terms of white card, for example, things like that?‑‑‑Yes, correct.
PN1477
Is there a difference between the requirements on construction sites that apply to apprentices for when they first start to say apply for an adult tradesperson?‑‑‑When they start on site, when they're being inducted?
PN1478
Yes, when they're being inducted?‑‑‑Well obviously - - -
PN1479
Everybody that goes onto a site for the first time, onto a new site for the first time, they have to go through similar type of processes?‑‑‑Well the employer should go through their generic OH&S plan with them, you know, just talk about first aid reporting, which is covered in the white card, whereas a tradesman or tradesperson would already know that.
PN1480
But the induction process still is mandatory, it's just what's contained in that induction process?‑‑‑And you're talking about commercial sites or domestic sites?
PN1481
I'm talking commercial sites?‑‑‑Commercial sites, yes, it would be the same for both. However, some companies, if they are an apprentice, a new starter, they may take them aside and, you know, sort of show them a bit more than just the normal induction, yes.
PN1482
In terms of the law that applies to a construction site, the Workplace Health & Safety Act applies, the Work Health and Safety Regulations apply, the codes of practice apply, the regulations, all of the requirements that apply on a construction site, they don't apply differently to, for example, a labourer versus a tradesperson?‑‑‑Sorry, I couldn't hear.
PN1483
The laws that apply regarding safety in workplaces and safety on construction sites, they don't apply differently to, say, a tradesperson than they do to, say, an unskilled labourer?‑‑‑An unskilled labourer? The law's the law, yes.
PN1484
So it applies across the board?‑‑‑Yes, except the clause that talks about supervision.
PN1485
Yes, of course, but that is within the award, isn't it?‑‑‑No, it's in the Act.
PN1486
Actually, that's very true, you're right about that. Thank you for that.
*** LIAM O'HEARN XXN MR SCHMITKE
PN1487
DEPUTY PRESIDENT HAMILTON: Is there for night work as well?‑‑‑Sorry?
PN1488
Is there a provision about night work as well?‑‑‑Night work, night shift, yes, in the award.
PN1489
MR SCHMITKE: Mr O'Hearn, in paragraph 11 of your statement, which you have just amended, you say you have been involved in the industry for, or you have been in your current role for over 10 years?‑‑‑Mm-hm.
PN1490
You have consulted widely with industry participants and with employers?‑‑‑Mm-hm.
PN1491
What's an "industry participant", by the way?‑‑‑An industry participant - workers.
PN1492
You then say you do not recall it ever being raised with you that the industry should look at junior wage rates and you have underscored the word "ever". Can you see that there in paragraph 11?‑‑‑Yes. It's never been brought up.
PN1493
Is that your evidence, it has never been raised with you?‑‑‑Junior wage rates for labourers.
PN1494
Junior rates in the On-site Award?‑‑‑But there's junior rates - I mean, there's not - no, it's never been brought up, no.
PN1495
Not once?‑‑‑Apprentice rates and we have talked - they have - well, the VIQA have come to us with stuff like traineeships and apprenticeships for concreting and demolition, but, no, not junior rates. They didn't talk about the rates, they just talked about the training.
PN1496
You are employed by the Victorian branch; that's right?‑‑‑Correct.
PN1497
That involves you travelling to Tasmania because it's - - -?‑‑‑Yes, we've amalgamated, yes.
PN1498
Do you travel anywhere else in this role around the country?‑‑‑Just for meetings, but not on an official basis, no.
*** LIAM O'HEARN XXN MR SCHMITKE
PN1499
Again, in all of this travel around the country, you haven't had anybody raise the concept of junior rates with you?‑‑‑Not for labourers, no.
PN1500
Not even junior rates within the On-site Award at all?‑‑‑Well, there is - there's rates for juniors for apprentices, but they've been around since Cocky was an egg really, but, no, not for labourers.
PN1501
Is this the first time you have given evidence to this Commission?‑‑‑No.
PN1502
When have you given evidence in the past?‑‑‑It would've been probably four years ago.
PN1503
Was it a particular case? Can you remember the case?‑‑‑I can't remember.
PN1504
You can't remember what the evidence was about?‑‑‑It was about the award but it was - I'm not sure, I can't remember. It was a long time ago.
PN1505
If I said to you that - was it the modern awards review in 2012 in a case involving apprentices, trainees and juniors?‑‑‑Yes.
PN1506
You did give evidence in that case?‑‑‑I would say so, yes.
PN1507
In the process of giving that evidence or attending the Commission, sort of like you have done today, the concept of junior rates was never raised with you in terms of the construction sector?‑‑‑They were talking about adult rates.
PN1508
Adult rates?‑‑‑Adult apprentice rates, yes.
PN1509
Nobody raised junior rates?‑‑‑Not that I'm aware of, no.
PN1510
It is definitely your evidence that you have never had anyone in the sector raise junior rates with you?‑‑‑Not for labourers, no.
PN1511
Have you seen the claim that Master Builders has filed in this proceeding seeking to insert junior rates?‑‑‑I haven't seen the whole claim, no.
*** LIAM O'HEARN XXN MR SCHMITKE
PN1512
You haven't? All right. But, nonetheless, you are opposed to junior rates?‑‑‑Well, I don't see why a - - -
PN1513
No, my question, sorry - I am reluctant to cut you off, but I am just - my question was that you are just opposed to junior rates as opposed to - and you haven't even seen the claim, it's just a general opposition to junior rates of pay?‑‑‑Junior rates of pay, I don't see why people that are 17 are less value than someone that's 24, so, yes, if they do the same work, they are not being trained, except for a white card, so I don't see why they should get paid less.
PN1514
All right?‑‑‑And there is junior - or there is new entry rates.
PN1515
Thank you, you have answered my questions.
PN1516
VICE PRESIDENT HATCHER: There is what?‑‑‑There's new entrant rates in the award, so for a new starter, whether they're 17 or they're 25, there's CCW1A, which is for the first three months, then the next nine months, it's B, then the next 12 months after that is C and then, after that, it's D, which is steel fixer/concreter, someone that's got some sort of occupation. So, yes, there is sort of transition rates for labourers.
PN1517
MR SCHMITKE: Your Honour, if I might just ask an additional question?
PN1518
VICE PRESIDENT HATCHER: Yes.
PN1519
MR SCHMITKE: Those rates are payable with an expectation you go on to some sort of formalised training?‑‑‑Well, there is certificate courses for stuff like concreting, demolition.
PN1520
Yes?‑‑‑I'm not aware of anyone that's done it.
PN1521
Are those provisions that you've just described in the award that exist at the moment for different rates, you know, for new starters, as it were, are those people going on, are they under any type of training arrangement?‑‑‑No.
PN1522
They are not doing anything?‑‑‑No.
PN1523
Not a certificate course or anything like that?‑‑‑No.
*** LIAM O'HEARN XXN MR SCHMITKE
PN1524
All right?‑‑‑No, they don't have to. If they did, it would probably be in their own time.
PN1525
I might have misheard your answer before, but when you gave your address, you gave two addresses and you mentioned that there was another location where - - -?‑‑‑Yes, we do apprenticeship training, so we do pre-apprenticeship and apprenticeship training and that's at Unit 4, 31 Sabre Drive.
PN1526
That's a CFMEU building, is it?‑‑‑Yes.
PN1527
All right. And this is part of your employment with the CFMEU?‑‑‑Yes.
PN1528
That's all I wanted to say, thank you very much, Mr O'Hearn. Thank you, your Honour, they are all the questions I have.
PN1529
VICE PRESIDENT HATCHER: Thank you. Any re-examination, Mr Crawshaw?
PN1530
MR CRAWSHAW: No, your Honour.
VICE PRESIDENT HATCHER: Thank you very much, Mr O'Hearn, you are now excused and you are free to leave?‑‑‑Thank you.
<THE WITNESS WITHDREW [12.23 PM]
PN1532
VICE PRESIDENT HATCHER: Is the next witness available in Sydney?
PN1533
MR MAXWELL: Your Honour, the next two witnesses are from Sydney. My understanding is that Mr Kelly is not available. Initially it was 3.30, but I'm trying to get him earlier at 3 o'clock and I think Mr Callaghan had an appointment at 12 o'clock and would not be available until, I think, 2 o'clock.
PN1534
VICE PRESIDENT HATCHER: From the way things are going, I don't think anyone is going to be required for an hour, so can we put them in some sort of sequence, whether it's earlier or later?
PN1535
MR MAXWELL: Yes, I am trying to contact them to arrange so that we can deal with them as quickly as possible.
*** LIAM O'HEARN XXN MR SCHMITKE
PN1536
VICE PRESIDENT HATCHER: When should we resume?
PN1537
MR MAXWELL: Perhaps 2 o'clock.
PN1538
VICE PRESIDENT HATCHER: Will we have them?
PN1539
MR MAXWELL: I will confirm that with your Associate, your Honour.
PN1540
MR CRAWSHAW: Can we use a little of the time just to tender those statements?
PN1541
VICE PRESIDENT HATCHER: Yes, I was just about to say that. Let me just find the list of those. First of all, there's three statements of yours, Mr Crawshaw, is that right, so Mr Kirner, Mr Cameron and Mr Holl, I think it is?
PN1542
MR CRAWSHAW: Yes.
VICE PRESIDENT HATCHER: The witness statement of David Kirner dated 1 December 2016 will be marked exhibit 16.
EXHIBIT #16 STATEMENT OF DAVID KIRNER DATED 01/12/2016
VICE PRESIDENT HATCHER: The statement of Robert Cameron, undated, will be marked exhibit 17.
EXHIBIT #17 STATEMENT OF ROBERT CAMERON (UNDATED)
VICE PRESIDENT HATCHER: The witness statement of Brendan Holl, undated, will be marked exhibit 18.
EXHIBIT #18 STATEMENT OF BRENDAN HOLL (UNDATED)
PN1546
MR CRAWSHAW: I understand signed copies of those statements were being filed today in the Registry.
PN1547
VICE PRESIDENT HATCHER: Thank you. Mr Boanza, you have two statements of witnesses not required for cross-examination?
PN1548
MR BOANZA: That's correct, your Honour.
PN1549
VICE PRESIDENT HATCHER: The first one is?
PN1550
MR BOANZA: Mr David O'Connor.
PN1551
VICE PRESIDENT HATCHER: Mr O'Connor. He has got two statements, does he?
PN1552
MR BOANZA: Yes, he does, your Honour, one on redundancy and one on junior rates.
VICE PRESIDENT HATCHER: The affidavit of David O'Connor affirmed on 7 December 2017 will be marked exhibit 19.
EXHIBIT #19 AFFIDAVIT OF DAVID O'CONNOR AFFIRMED ON 07/12/2016
PN1554
MR CRAWSHAW: I think there were two.
VICE PRESIDENT HATCHER: Yes. The further affidavit of David O'Connor affirmed on 7 December 2016 will be marked as exhibit 20.
EXHIBIT #20 FURTHER AFFIDAVIT OF DAVID O'CONNOR AFFIRMED ON 07/12/2016
PN1556
MR CRAWSHAW: Just for the purposes of - - -
PN1557
VICE PRESIDENT HATCHER: So the first affidavit that has been marked exhibit 19 has 20 paragraphs and the second, which has been marked exhibit 20, has 18 paragraphs.
PN1558
MR CRAWSHAW: Yes.
VICE PRESIDENT HATCHER: The affidavit of John Graham Hovey affirmed on 7 December 2016 with 11 paragraphs will be marked exhibit 21.
EXHIBIT #21 AFFIDAVIT OF JOHN GRAHAM HOVEY (11 PARAGRAPHS) AFFIRMED ON 07/12/2016
VICE PRESIDENT HATCHER: And the further affidavit of John Graham Hovey affirmed on 7 December 2016 with 12 paragraphs will be marked exhibit 22.
EXHIBIT #22 FURTHER AFFIDAVIT OF JOHN GRAHAM HOVEY (12 PARAGRAPHS) AFFIRMED ON 07/12/2016
PN1561
VICE PRESIDENT HATCHER: Then, Ms Adler, you have four statements.
PN1562
MR CRAWSHAW: There's actually two more. There's Mr Castledine that we were going to cross-examine.
PN1563
VICE PRESIDENT HATCHER: That's right. I will finish the CCF ones. Mr Castledine - - -
PN1564
MR CRAWSHAW: Unfortunately, they are both 10 paragraphs long, but their headings are different.
VICE PRESIDENT HATCHER: All right. The affidavit of David Castledine entitled "Affidavit in Support of the Civil Contractors Federation Application to Introduce Junior Rates to the Award, affirmed on 7 December 2016, will be marked exhibit 23.
EXHIBIT #23 AFFIDAVIT OF DAVID CASTLEDINE ENTITLED "AFFIDAVIT IN SUPPORT OF THE CIVIL CONTRACTORS FEDERATION APPLICATION TO INTRODUCE JUNIOR RATES TO THE AWARD" AFFIRMED ON 07/12/2016
VICE PRESIDENT HATCHER: The further affidavit of David Castledine entitled "Affidavit in Support of the Civil Contractors Federation Application to Vary the Definition of Redundancy in the Award", again affirmed on 7 December 2016, will be marked exhibit 24.
EXHIBIT #24 FURTHER AFFIDAVIT OF DAVID CASTLEDINE ENTITLED "AFFIDAVIT IN SUPPORT OF THE CIVIL CONTRACTORS FEDERATION APPLICATION TO VARY THE DEFINITION OF REDUNDANCY IN THE AWARD", AFFIRMED ON 07/12/2016
VICE PRESIDENT HATCHER: Ms Adler, the statement of Kirsten Lewis dated 29 November 2016 will be marked exhibit 25.
EXHIBIT #25 STATEMENT OF KIRSTEN LEWIS DATED 29/11/2016
VICE PRESIDENT HATCHER: The statement of Rick Sassin dated 30 November 2016 will be marked exhibit 26.
EXHIBIT #26 STATEMENT OF RICK SASSIN DATED 30/11/16
VICE PRESIDENT HATCHER: The statement of Huan Do dated 29 November 2016 will be marked exhibit 27.
EXHIBIT #27 STATEMENT OF HUAN DO DATED 29/11/2016
VICE PRESIDENT HATCHER: The statement of Kristie Burt dated 30 November 2016 will be marked exhibit 28.
EXHIBIT #28 STATEMENT OF KRISTIE BURT DATED 30/11/2016
VICE PRESIDENT HATCHER: The statement of Lauren Marantz dated 1 December 2016 will be marked exhibit 29.
EXHIBIT #29 STATEMENT OF LAUREN MARANTZ DATED 01/12/2016
PN1572
MR CRAWSHAW: Can I just raise a matter in relation to - it's an objection in relation to exhibit 26, Mr Sassin's statement, and Mr Huan Do's statement, exhibit 27. This was a matter that was the subject of our written submissions, but it wasn't a matter that I revisited yesterday when asked what the harm was in dealing with it in final submissions. It is the matter of what is in paragraphs 17 and 18 of Mr Sassin's statement and paragraphs 16 and 17 of Mr Huan Do. As you will see in our objection submission at paragraphs 30 to 31, our complaint is that those statements contain identical hearsay evidence from those two witnesses as to unidentified members not being willing to give evidence for fear of drawing union attention.
PN1573
Our complaint was that this evidence is irrelevant and prejudicial and should not be admitted as a matter of equity and good conscience. We ask that those two paragraphs in each of those statements be struck from the record. It is actually of more severe prejudice than our complaint about the unidentified witness of the MBA whose statement is to be redacted because it suggests, on a widespread scale, some sort of fear in relation to my client which is not based on anything of any substance. In no way would it justify, if those persons were actually going through the process that the MBA is now going through, namely seeking confidentiality, in no way would those statements justify a confidentiality order and they just shouldn't be allowed to go in, they are just totally prejudicial to my client.
PN1574
VICE PRESIDENT HATCHER: It is only evidence of what he was advised, it is not evidence of the truth of what was said, is it? Ms Adler, that's right? It is not being suggested that that is evidence that in fact these employees would be targeted and subjected to unwarranted attention, it is evidence of what, in each case, the witness was told; is that right?
PN1575
MS ADLER: That's right, that's right, and my friends would have had an opportunity to cross-examine these witnesses and ask them questions about that if they saw fit, which they did not.
PN1576
MR CRAWSHAW: It's hearsay evidence from unidentified people - the classic.
PN1577
VICE PRESIDENT HATCHER: You could have asked the witness in cross-examination who these people were and they would have had to answer, unless there was some confidentiality implication.
PN1578
MR CRAWSHAW: But the evidence isn't probative of anything relevant to these proceedings.
PN1579
VICE PRESIDENT HATCHER: It is probative of what he was told and the reason people gave as to why they didn't give him information. Whether that is true or not is not the point.
PN1580
DEPUTY PRESIDENT HAMILTON: Well, it's hearsay evidence.
PN1581
MR CRAWSHAW: If I had asked the witness the identity of the persons, that still would not have addressed the question of whether they had any fear or not.
PN1582
VICE PRESIDENT HATCHER: No, but it's not - - -
PN1583
MR CRAWSHAW: So it would have been a totally futile effort in cross-examination.
PN1584
VICE PRESIDENT HATCHER: Perhaps, Mr Crawshaw, but it is not being advanced as evidence of the truth of the proposition that there would have been any retaliation for those names being identified. Ms Adler has made that concession and, therefore, I can't see how the prejudice arises and, in fact, it may be put that those paragraphs serve to diminish the weight of the whole statement.
PN1585
MR CRAWSHAW: If the Commission pleases.
PN1586
VICE PRESIDENT HATCHER: We will allow those paragraphs in.
PN1587
MS ADLER: Thank you, your Honour.
PN1588
VICE PRESIDENT HATCHER: Are there any other matters we can deal with before lunch? All right, we will resume at 2 o'clock, but if there's some further delay in obtaining witnesses, can my Chambers be advised. We will now adjourn.
LUNCHEON ADJOURNMENT [12.37 PM]
RESUMED [3.01 PM]
PN1589
VICE PRESIDENT HATCHER: So the next witness is Mr Kelly?
PN1590
MR MAXWELL: That's correct, your Honour.
PN1591
VICE PRESIDENT HATCHER: All right.
PN1592
THE ASSOCIATE: Please state your full name and address?
MR KELLY: David John Kelly (address supplied).
<DAVID JOHN KELLY, AFFIRMED [3.02 PM]
EXAMINATION-IN-CHIEF BY MR MAXWELL [3.02 PM]
PN1594
VICE PRESIDENT HATCHER: Mr Maxwell?
PN1595
MR MAXWELL: Yes, thank you, your Honour. Mr Kelly, have you prepared a statement for these proceedings?‑‑‑I have.
PN1596
Do you have a copy of that statement with you?‑‑‑Yes, I do.
PN1597
Is that statement 21 paragraphs long with two attachments?‑‑‑It is.
PN1598
Are there any corrections or changes you wish to make to that statement?‑‑‑No, there aren't.
*** DAVID JOHN KELLY XN MR MAXWELL
PN1599
Is that statement true and correct to the best of your knowledge?‑‑‑It is.
PN1600
Your Honour, I seek to tender that statement.
VICE PRESIDENT HATCHER: Yes. The statement of David Kelly dated 1 December 2016 will be marked exhibit 30.
EXHIBIT #30 WITNESS STATEMENT OF DAVID JOHN KELLY DATED 01/12/2016
VICE PRESIDENT HATCHER: Mr Schmitke?
CROSS-EXAMINATION BY MR SCHMITKE [3.03 PM]
PN1603
MS SCHMITKE: Thank you, your Honour. Mr Kelly, I just would like to ask you a few questions just to clarify if I could some of the elements in your statement. You've got a copy in front of you, just double check. Yes?‑‑‑Yes, I have. Yes.
PN1604
Yes, okay. Paragraph 8 of your statement, if I could just take you to that? In this statement you talk about employees or workers being encouraged by employers to put down a different address because well, it simply says they're encouraged by employers to put down a different address?‑‑‑Yes.
PN1605
What's the purpose of that in your opinion?‑‑‑Well, the reason they are required to put down a false address is so the company well, to circumvent that obligation under the award to pay living away from home allowance.
PN1606
Thank you. Is that fraud?‑‑‑I believe so, yes.
PN1607
Thank you?‑‑‑Well, it's to encourage them to, you know, wrongfully put down the address, yes.
PN1608
In circumstances where you're aware that this has taken place, what steps have you taken to draw the attention of this practice to the authorities such as the police?‑‑‑Well, in terms of taking matters to police, I don't really think that's my role. In those cases I take it up with the boss and seek to recover the amounts owed.
*** DAVID JOHN KELLY XXN MR SCHMITKE
PN1609
In those circumstances, have you managed to recover the amounts owed?‑‑‑I have on a number of occasions, yes.
PN1610
Thank you. Mr Kelly, is the use of labour hire illegal?‑‑‑Is using body hire illegal.
PN1611
Labour hire illegal?‑‑‑No, it's not illegal.
PN1612
Thank you. In paragraph 15 of your statement towards the end of the paragraph you talk about employees working longer hours and then they don't have a chance to prepare food for themselves?‑‑‑Yes.
PN1613
And therefore have to buy it in a meal, a club, or a pub, a restaurant or something like that?‑‑‑Yes.
PN1614
Is that in relation to or circumstances where people are living away from home?‑‑‑This clause refers to when people are living away from home, so, yes, that's the issue.
PN1615
Thank you. The award provides that when living away from home an employer, in terms of facilities, is required to make available a kitchen facility. Is that something that you're aware of?‑‑‑Well, no, I don't think that is specified in the award. Correct me if I'm wrong, but it has to be reasonable board and lodgings, doesn't it?
PN1616
Let me perhaps, if I can for one moment, quote to you from the Onsite Award?‑‑‑Yes.
PN1617
This is clause 24.3 subclause (b), and it says:
PN1618
The accommodation provided will be of a reasonable standard having regard to the location in which work is performed, including the provision of reasonable ablution/laundry, recreational and kitchen facilities, as well as reasonable external lighting, mail facilities, radio or telephone contact and fire protection.
PN1619
?‑‑‑Okay. So what was your question again?
PN1620
So the question is does the award require, in those circumstances, that the employer provide a kitchen facility?‑‑‑Well, if it says it, it says it, yes.
*** DAVID JOHN KELLY XXN MR SCHMITKE
PN1621
In that case, if the circumstances you've described at the end of paragraph 15 were to occur that would be a breach of the current award?‑‑‑Well, no, that's only one part of the award, isn't it? You know, I mean, what happens is a company may provide a room without any kitchen facility. All right. You know, they're given a room in a hotel without any kitchen. That's I haven't got a copy of the award with me and so, you know, I'm ‑ ‑ ‑
PN1622
No, that's okay?‑‑‑I mean, there's various options under the award.
PN1623
Yes. No, thank you, Mr Kelly. I've finished the questions that I'd like to ask, and thank you very much for taking the time to provide evidence today?‑‑‑Yes, no problem.
VICE PRESIDENT HATCHER: Ms Paul, do you have any questions?
CROSS-EXAMINATION BY MS PAUL [3.09 PM]
PN1625
MS PAUL: Yes, your Honour. So, Mr Kelly, have you actually worked as a FIFO or DIDO?‑‑‑I've never worked in fly in/fly out.
PN1626
Okay?‑‑‑No.
PN1627
So the evidence you've provided about the impact of FIFI, DIDO, all those sorts of things is based on information members have given you?‑‑‑Yes, that's the case.
PN1628
Sorry, could I just get you to your Honour, I think Mr Callaghan has just walked in. Could we ask for him to be waiting outside if possible?
PN1629
VICE PRESIDENT HATCHER: Yes if you insist.
PN1630
MS PAUL: Thank you, your Honour. Apologies, Mr Kelly. Sorry, the evidence that you provided in your statement about the impact of working on distant work ‑ ‑ ‑?‑‑‑Yes.
PN1631
‑ ‑ ‑that's all been indicated or provided to you by your members?‑‑‑By members, non-members, members of other unions involved in the building construction industry.
*** DAVID JOHN KELLY XXN MS PAUL
PN1632
Okay. So the two individuals who - the attachment 1 and 2, were those two individual members of yours?‑‑‑One was, and one was his wife.
PN1633
Was, okay. Wife, okay?‑‑‑Mm.
PN1634
Did they type up those words and give you a statement to attach?‑‑‑Yes, they did. Yes.
PN1635
Okay. You didn't ask them any questions?‑‑‑The only question I asked was whether they'd be prepared to put a or our member, whether he'd put a statement together because his case was coming up so that's the only question.
PN1636
Yes?‑‑‑And he agreed to and provided that, I think, information along with additional information from his wife.
PN1637
Thank you. In paragraph 8 and 9 you certainly talk about the fact that you're saying that employees have put down, you know, what was effectively a local address on the application form?‑‑‑Yes.
PN1638
Also the fact that, again, in paragraph 9 you talk about the fact that workers are increasingly directed by managers to contact regionally based labour hire companies, et cetera, and the fact that they're also vulnerable as they're seeking rights, you know, that they are ‑ ‑ ‑?‑‑‑Yes.
PN1639
So, in terms of the issues that are raised in 8 or 9, have you actually brought any claims or disputes before the Commission in relation to that?‑‑‑I've done numerous backpay claims.
PN1640
Yes?‑‑‑But, again, it's very difficult to do that. Workers understand that if they put in claims and they're dependent on these regional jobs that they you know, it makes it difficult for them to pick another job, so although there's a lot of discontent and people raising these issues, the workers, to take that plunge is a very serious thing for them to do, so ‑ ‑ ‑
PN1641
But the union hasn't raised any particular claims for members in relation to this?‑‑‑Yes. Yes, I have. Yes, I've recovered money. Yes, I have indeed. Yes.
*** DAVID JOHN KELLY XXN MS PAUL
PN1642
So it would be fair to say that where there is an issue of a non-payment of a term or a condition the union or yourself would bring that issue up with the Fair Work Commission and deal with those issues?‑‑‑If necessary, or the Chief Industrial Magistrate, or ‑ ‑ ‑
PN1643
Okay?‑‑‑But a lot of the stuff is resolved on the job as well, and before you take those steps. You know, quite often you'll find that you might find that a superintendent on a job has made some arrangement and when the industrial relations group within the company find out ‑ ‑ ‑
PN1644
Yes?‑‑‑ ‑ ‑ ‑they wave a magic wand and the money appears again, so ‑ ‑ ‑
PN1645
Okay. So the matter gets resolved and the union can raise a dispute in relation to that. Is it internally or ‑ ‑ ‑?‑‑‑Internally or, if necessary, externally.
PN1646
Okay. Thank you. In terms of the negotiations I understand that you sorry, I'll withdraw that. The same situation would arise in the examples you've provided in paragraph 12 and 13, and in those two circumstances again were there claims or were there disputes brought before a court or a tribunal?‑‑‑Over 20 plus years there's been a lot of those disputes.
PN1647
Yes?‑‑‑And I have taken stuff to the Commissions, but I suppose I'm of an age where I spend I'm not too bad as a negotiator resolving matters with companies.
PN1648
Okay?‑‑‑But you might find that recent ones might have to deal with Irish workers from overseas.
PN1649
Yes?‑‑‑They pack them in to small areas.
PN1650
Do you ‑ ‑ ‑?‑‑‑Or we had some Filipinos who were all crammed together in small areas and we resolved the matter through media attention or, you know, through other means talking to the clients sometimes or the government.
PN1651
If that wasn't resolved you could bring it to the Commission or to some other tribunal?‑‑‑It's very difficult because again you're asking people to rely on ‑ ‑ ‑
PN1652
Yes?‑‑‑ ‑ ‑ ‑ following the job to stand up and be noticed and that's a problem for them.
*** DAVID JOHN KELLY XXN MS PAUL
PN1653
So in terms of the evidence you've provided about those employees that are suffering fatigue, et cetera; fatigue and leave, et cetera, you are not suggesting - sorry, I withdraw that.
PN1654
Have you negotiated agreements for the CFMEU with any of these sort of companies?‑‑‑Yes, I would have.
PN1655
In these agreements, have they contained any living away from home clauses?‑‑‑Yes, in these agreements, I normally endeavour to have the agreements underpinned by the award.
PN1656
And you would be utilising the LAFHA clause within the award?‑‑‑Yes, with variations, yes, to meet particular circumstances, if I can.
PN1657
That would be a common practice in terms of when you are negotiating the agreements?‑‑‑I would try valiantly, but negotiations aren't that easy. Under the new Act in particular they are quite fraught.
PN1658
Thank you, no further questions.
PN1659
VICE PRESIDENT HATCHER: Any re-examination?
PN1660
MR MAXWELL: No, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Kelly, you are excused, you are now free to go?‑‑‑Thank you very much.
<THE WITNESS WITHDREW [3.16 PM]
PN1662
VICE PRESIDENT HATCHER: Can we have Mr Callaghan attend the courtroom now?
PN1663
THE ASSOCIATE: Could you please state your full name and address.
MR CALLAGHAN: Danny William Callaghan, (address supplied).
<DANNY WILLIAM CALLAGHAN, AFFIRMED [3.17 PM]
EXAMINATION-IN-CHIEF BY MR MAXWELL [3.17 PM]
*** DANNY WILLIAM CALLAGHAN XN MR MAXWELL
PN1665
MR MAXWELL: Mr Callaghan, do you have a copy of your statement with you?‑‑‑Yes, I do.
PN1666
Is that the statement you prepared for these proceedings?‑‑‑It was a statement that I gave whenever it was.
PN1667
Is that statement 14 paragraphs long?‑‑‑Yes.
PN1668
Are there any changes or corrections you wish to make to that statement?‑‑‑No.
PN1669
Is that statement true and correct to the best of your knowledge?‑‑‑Absolutely.
PN1670
Your Honour, I seek to tender the statement of Mr Callaghan dated 1 December 2016.
VICE PRESIDENT HATCHER: The statement of Danny Callaghan dated 1 December 2016 will be marked exhibit 31.
EXHIBIT #31 STATEMENT OF DANNY CALLAGHAN DATED 01/12/2016
VICE PRESIDENT HATCHER: Mr Schmitke?
CROSS-EXAMINATION BY MR SCHMITKE [3.19 PM]
PN1673
MR SCHMITKE: Mr Callaghan, I would just like to ask you some questions - and thank you for making yourself available - in relation to some of the matters you have raised in your statement. In paragraph 3, you talk about some projects that have required you to live away from home and there's some dot points where you cite some examples of those projects. Am I right to say that those projects all involved a traditional fly in/fly out arrangement?‑‑‑Correct.
PN1674
Let me perhaps refer to Barrow Island. What type of work were you undertaking when you were working on that project?‑‑‑I worked for Toll Holdings, I was a crane operator.
PN1675
A crane operator?‑‑‑Yes.
*** DANNY WILLIAM CALLAGHAN XXN MR SCHMITKE
PN1676
With that particular project, what type of accommodation facilities were provided?‑‑‑Single room.
PN1677
Sorry, Mr Callaghan, I will be more specific. Were there multiple locations where the accommodation facilities existed or was there one general location for that project?‑‑‑Well, it was a general location, but there was older buildings and newer buildings.
PN1678
Do you know who was responsible for providing and establishing those buildings?‑‑‑I'm not sure whether it was Sodexo or another mob.
PN1679
Sorry, who were those people - - -?‑‑‑Sodexo - - -
PN1680
Sorry, yet again. Who were those two companies again?‑‑‑Well, Chevron - Chevron was the main contractor and we were all working for Chevron, so I'd say that Chevron provided them.
PN1681
Are you aware that there were employees of other companies working on that project or were they all employees of Chevron?‑‑‑No, there were all sorts of companies.
PN1682
All sorts of companies?‑‑‑Yes.
PN1683
Did those employees also share those same facilities?‑‑‑Yes.
PN1684
Now did you get that job in Barrow Island?‑‑‑I was working in Port Headland and a mate of mine was working for Toll and I'd just finished in Port Headland and he rang me up and he said, "Do you want to come over here, I'll put your name in." He said, "They're looking for someone", so I rang up, got an interview and got the job.
PN1685
You contacted Chevron and - - -?‑‑‑No, no, I contacted Toll
PN1686
Toll, sorry?‑‑‑Yes.
PN1687
Is that reasonably common, do you think, in this type of work that people hear through word of mouth about various work available and they make enquiries themselves?‑‑‑Yes. It's very hard to get in otherwise.
*** DANNY WILLIAM CALLAGHAN XXN MR SCHMITKE
PN1688
Thank you?‑‑‑I've been around a while, I suppose, and, yes, you meet a few people along the way.
PN1689
Yes, I'm sure. The last question that I have for you, Mr Callaghan, just relates to paragraph 9 of your statement, if I could just draw your attention to that paragraph, please?‑‑‑Yes.
PN1690
It was one of the worst projects, you say, for getting mobile coverage and internet connections?‑‑‑Absolutely.
PN1691
Constant drop-outs and just getting a signal was a problem. Whose responsibility was it to ensure that there was adequate mobile coverage?‑‑‑I believe it was Chevron and they wouldn't pay the money to get the extra coverage.
PN1692
But there was some coverage up there?‑‑‑There was some. Like you're not allowed your phone at work, so you only - and you all get back at the same time, you all do the same hours, unless you're day shift or night shift, and then when you get back to your donga, then you go to ring home, or whatever, and every man and his dog's trying to do it, so it's very hard, and you can't do anything during the day because you're not allowed your phone with you. That's a reason for dismissal.
PN1693
Just so I can be clear, when you talk about "donga", you are referring to the accommodation?‑‑‑Yes.
PN1694
Thank you. Was there any landlines available?‑‑‑Not that I know of. I never used one. I can't say there wasn't, but I didn't see them.
PN1695
You would be aware that the On-site Award requires that telephone facilities or radio or telephone contact be provided as part of these accommodation arrangements; are you aware of that?‑‑‑Not particularly, no.
PN1696
Thank you, Mr Callaghan, I don't have any further questions for you?‑‑‑No worries.
PN1697
VICE PRESIDENT HATCHER: Ms Paul?
MS PAUL: Thank you, your Honour.
*** DANNY WILLIAM CALLAGHAN XXN MR SCHMITKE
CROSS-EXAMINATION BY MS PAUL [3.23 PM]
PN1699
MS PAUL: Mr Callaghan, in terms of the Go, G3 and wharf construction, tug pins, Barrow Island, Inpex and LNG, who was your employer in that circumstance or employers?‑‑‑Go, I was with McPhee Engineering; Inpex, I was with Leighton Contractors, over at Cape Preston on the Barrow tug pins, that was - let me think, let me think - it's here somewhere - what's their name? They're gone now. I thought it was in there. I'm not sure, I can't remember their name.
PN1700
Barrow Island?‑‑‑Toll Holdings.
PN1701
And Inpex was Leighton?‑‑‑Leightons, yes.
PN1702
In terms of all of those employers and all of those projects, were the terms and conditions of your employment in accordance with an EBA? Was an EBA covering those terms?‑‑‑Yes.
PN1703
Was the EBA negotiated with the CFMEU?‑‑‑Yes.
PN1704
In all circumstances?‑‑‑With the tug pin to Cape Preston, I was - I think that - I don't think it was a CFMEU agreement because we were on the water.
PN1705
Yes?‑‑‑I wasn't in the MUA, but it was two weeks on, two weeks off, so that's - - -
PN1706
But that was one in which there was still an EBA that covered you?‑‑‑Must have been.
PN1707
All right?‑‑‑No, I don't think we were because I was getting X amount of dollars per day.
PN1708
So you're not sure whether it was an EBA or not?‑‑‑No. I'm still trying to remember the mob's name.
PN1709
I have no further questions, thank you. Thank you, your Honour.
PN1710
VICE PRESIDENT HATCHER: Any re-examination, Mr Maxwell?
*** DANNY WILLIAM CALLAGHAN XXN MS PAUL
PN1711
MR MAXWELL: No, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Callaghan, you are now excused and you're free to go?‑‑‑Rightio, thank you.
<THE WITNESS WITHDREW [3.26 PM]
PN1713
VICE PRESIDENT HATCHER: That's all the witnesses we have for today?
PN1714
MR MAXWELL: That's correct, your Honour.
PN1715
VICE PRESIDENT HATCHER: Just looking at tomorrow's list, there are, I think, nine witnesses. Four of them are after lunch witnesses; is that right?
PN1716
MR MAXWELL: I understand so. I think they are the AWU's witnesses. Sorry, they are the AWU's witnesses.
PN1717
VICE PRESIDENT HATCHER: And Mr Glover.
PN1718
MR MAXWELL: And Mr Glover from the MBA.
PN1719
VICE PRESIDENT HATCHER: Then three AWU witnesses. Are we confident we will finish the cross-examination of those witnesses in the afternoon? Mr Glover's evidence covers a range of issues. Will he take a while?
PN1720
MR MAXWELL: He will probably take a bit longer than the others. In regard to the other three witnesses, who are the AWU witnesses, I understand the ABI will be cross-examining them and they are not here.
PN1721
VICE PRESIDENT HATCHER: All right, is there anything else we can deal with today?
PN1722
MR MAXWELL: Your Honour, I did raise, I think with your Associate during the luncheon break, about the documents that Mr Schmitke handed up, exhibits 7, 8 and 9.
PN1723
VICE PRESIDENT HATCHER: They are his exhibits, so he has to copy them. Do you need some assistance in that regard, Mr Schmitke?
PN1724
MR SCHMITKE: Yes, your Honour, I do. Sorry, I thought that was a matter that I had requested earlier on today.
PN1725
VICE PRESIDENT HATCHER: Do we need to look at them, in any event, before next week?
PN1726
MR SCHMITKE: I would like to be able to provide the other parties a copy.
PN1727
VICE PRESIDENT HATCHER: All right, we will have copies available when we resume in the morning.
PN1728
MR SCHMITKE: Thank you.
PN1729
MR CRAWSHAW: The only problem is we won't be here.
PN1730
VICE PRESIDENT HATCHER: We will have them sent to Sydney, that's fine.
PN1731
MR SCHMITKE: I am very happy to have them emailed to the parties.
PN1732
VICE PRESIDENT HATCHER: Yes, so we will organise that in Sydney as well. How long should the confidentiality argument take?
PN1733
MR CRAWSHAW: It depends.
PN1734
VICE PRESIDENT HATCHER: You haven't seen the material yet?
PN1735
MR CRAWSHAW: No, we haven't seen the material. Otherwise, we are just relying on the principles that your Honour set out and the other Member of the Commission have set out about open justice and needing some sound basis.
PN1736
MR SCHMITKE: Yes, I wouldn't expect it would take too long.
PN1737
VICE PRESIDENT HATCHER: We will now adjourn and resume at 10 am tomorrow morning.
ADJOURNED UNTIL WEDNESDAY, 05 APRIL 2017 [3.28 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #5 SURVEY DOCUMENTATION PRODUCED BY THE HOUSING INDUSTRY ASSOCIATION IN RESPONSE TO AN ORDER FOR PRODUCTION DATED 17/01/2017............................................................................................................................... PN1039
EXHIBIT #6 SURVEY INFORMATION PROVIDED BY THE CIVIL CONTRACTORS FEDERATION IN RESPONSE TO AN ORDER FOR PRODUCTION DATED 17/01/2017............................................................................................................................... PN1040
EXHIBIT #7 EXTRACT FROM THE COMMONWEALTH WORK HEALTH AND SAFETY ACT....................................................................................................................... PN1071
EXHIBIT #8 TABLE OF ANNEXURE A STATEMENT OF DAVID SOLOMON, IDENTIFYING WHICH MATTERS ARE THE SUBJECT OF MBA CLAIMS PN1075
EXHIBIT #9 MBA ANALYSIS OF AWARD CLAIMS................................ PN1076
JEFFERY ALLAN SHARP, AFFIRMED....................................................... PN1090
EXAMINATION-IN-CHIEF BY MR CRAWFORD..................................... PN1090
EXHIBIT #10 WITNESS STATEMENT OF JEFFREY ALLAN SHARP DATED 09/12/2016............................................................................................................................... PN1098
CROSS-EXAMINATION BY MS PAUL........................................................ PN1102
THE WITNESS WITHDREW.......................................................................... PN1153
FRANCIS O'GRADY, AFFIRMED................................................................. PN1156
EXAMINATION-IN-CHIEF BY MR CRAWSHAW..................................... PN1156
EXHIBIT #11 WITNESS STATEMENT OF FRANK O'GRADY DATED 02/12/2016............................................................................................................................... PN1164
CROSS-EXAMINATION BY MS PAUL........................................................ PN1212
THE WITNESS WITHDREW.......................................................................... PN1239
DEAN LESLIE REILLY, AFFIRMED........................................................... PN1258
EXAMINATION-IN-CHIEF BY MR MAXWELL........................................ PN1258
EXHIBIT #12 WITNESS STATEMENT OF DEAN REILLY DATED 02/12/2016. PN1268
CROSS-EXAMINATION BY MR SCHMITKE............................................. PN1270
CROSS-EXAMINATION BY MS PAUL........................................................ PN1341
THE WITNESS WITHDREW.......................................................................... PN1378
JOSHUA WAYNE BURLING, AFFIRMED.................................................. PN1380
EXAMINATION-IN-CHIEF BY MR MAXWELL........................................ PN1380
EXHIBIT #13 WITNESS STATEMENT OF JOSHUA WAYNE BURLING DATED 06/12/2016............................................................................................................................... PN1387
CROSS-EXAMINATION BY MS PAUL........................................................ PN1389
THE WITNESS WITHDREW.......................................................................... PN1404
ROLAND CUMMINS, AFFIRMED................................................................ PN1409
EXAMINATION-IN-CHIEF BY MR MAXWELL........................................ PN1409
EXHIBIT #14 WITNESS STATEMENT OF ROLAND CUMMINS DATED 06/12/2016............................................................................................................................... PN1416
CROSS-EXAMINATION BY MS PAUL........................................................ PN1418
THE WITNESS WITHDREW.......................................................................... PN1439
LIAM O'HEARN, AFFIRMED......................................................................... PN1444
EXAMINATION-IN-CHIEF BY MR CRAWSHAW..................................... PN1444
EXHIBIT #15 WITNESS STATEMENT OF LIAM O'HEARN UNDATED PN1457
CROSS-EXAMINATION BY MR SCHMITKE............................................. PN1458
THE WITNESS WITHDREW.......................................................................... PN1531
EXHIBIT #16 STATEMENT OF DAVID KIRNER DATED 01/12/2016... PN1543
EXHIBIT #17 STATEMENT OF ROBERT CAMERON (UNDATED)..... PN1544
EXHIBIT #18 STATEMENT OF BRENDAN HOLL (UNDATED)............ PN1545
EXHIBIT #19 AFFIDAVIT OF DAVID O'CONNOR AFFIRMED ON 07/12/2016 PN1553
EXHIBIT #20 FURTHER AFFIDAVIT OF DAVID O'CONNOR AFFIRMED ON 07/12/2016............................................................................................................................... PN1555
EXHIBIT #21 AFFIDAVIT OF JOHN GRAHAM HOVEY (11 PARAGRAPHS) AFFIRMED ON 07/12/2016...................................................................................................... PN1559
EXHIBIT #22 FURTHER AFFIDAVIT OF JOHN GRAHAM HOVEY (12 PARAGRAPHS) AFFIRMED ON 07/12/2016............................................................................... PN1560
EXHIBIT #23 AFFIDAVIT OF DAVID CASTLEDINE ENTITLED "AFFIDAVIT IN SUPPORT OF THE CIVIL CONTRACTORS FEDERATION APPLICATION TO INTRODUCE JUNIOR RATES TO THE AWARD" AFFIRMED ON 07/12/2016 PN1565
EXHIBIT #24 FURTHER AFFIDAVIT OF DAVID CASTLEDINE ENTITLED "AFFIDAVIT IN SUPPORT OF THE CIVIL CONTRACTORS FEDERATION APPLICATION TO VARY THE DEFINITION OF REDUNDANCY IN THE AWARD", AFFIRMED ON 07/12/2016............................................................................................................................... PN1566
EXHIBIT #25 STATEMENT OF KIRSTEN LEWIS DATED 29/11/2016.. PN1567
EXHIBIT #26 STATEMENT OF RICK SASSIN DATED 30/11/16............ PN1568
EXHIBIT #27 STATEMENT OF HUAN DO DATED 29/11/2016............... PN1569
EXHIBIT #28 STATEMENT OF KRISTIE BURT DATED 30/11/2016..... PN1570
EXHIBIT #29 STATEMENT OF LAUREN MARANTZ DATED 01/12/2016 PN1571
DAVID JOHN KELLY, AFFIRMED.............................................................. PN1593
EXAMINATION-IN-CHIEF BY MR MAXWELL........................................ PN1593
EXHIBIT #30 WITNESS STATEMENT OF DAVID JOHN KELLY DATED 01/12/2016............................................................................................................................... PN1601
CROSS-EXAMINATION BY MR SCHMITKE............................................. PN1602
CROSS-EXAMINATION BY MS PAUL........................................................ PN1624
THE WITNESS WITHDREW.......................................................................... PN1661
DANNY WILLIAM CALLAGHAN, AFFIRMED........................................ PN1664
EXAMINATION-IN-CHIEF BY MR MAXWELL........................................ PN1664
EXHIBIT #31 STATEMENT OF DANNY CALLAGHAN DATED 01/12/2016 PN1671
CROSS-EXAMINATION BY MR SCHMITKE............................................. PN1672
CROSS-EXAMINATION BY MS PAUL........................................................ PN1698
THE WITNESS WITHDREW.......................................................................... PN1712