SubmissionCFMEU5-2--8-2

Level 5
44 Market Street
SYDNEY NSW 2000
Slater
+Gordon
Lawyers
http://www.slatergordon.com.au
14 November 2014
Correspondence to:
BY EMAIL
Mr James Beaton
Solicitor Assisting
Royal Commission into Trade Union Governance
and Corruption
Level 19 55 Market Street
SYDNEY NSW 2000
lawyer: Phillip Pasfield
Legal Assistant: Connie Graziano
GPO Box 1584
Sydney NSW 2001
DX 1163 SYDNEY
Direct Ph: (02) 8267 0623
Email:··········
Attention: Catherine Hamilton-Jewell
Our Ref: PJP1:CMG1:M382449
Dear Mr Beaton
Royal Commission into Trade Union Governance & Corruption
I refer to the above matter and enclose herewith submissions on behalf of CFMEU and various
individuals dated 14 November 2014.
Yours faithfully
, e~
illip Pasfiel: t
Practice Group Leader
Industrial & Employment
SLATER & GORDON
Encl
Slater and Gordon Ltd. ABN 93 097 297 400
ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND
CORRUPTION
SUBMISSIONS ON BEHALF OF THE CONSTRUCTION,
FORSTRY, MINING AND ENERGY UNION AND VARIOUS
INDIVIDUALS
PART 1 OVERVIEW
1.
These submissions are made in accordance with Practice Note 5.
2.
They are made on behalf of the CFMEU and the following individuals against
whom Counsel Assisting seeks adverse findings:
•
Andrew Ferguson
•
Andrew Sutherland
•
Bill Beattie
•
Bill Oliver
•
Brendan Pitt
•
Bud Nieland
•
Chad Bragdon
•
Darren Greenfield
•
Dave Hanna
•
David Noonan
•
Donald McDonald AM
•
Eddie Bland
•
Gerard Benstead
•
Gregg Churchman
•
Gregory McLaren
Construction, Forestry, Mining and Energy Union and various
individuals
Filed on behalf of
Prepared by (name of person/lawyer)
Law firm
Slater & Gordon
-----------------=====================---Tel
Email
Level 5, 44 Market Street
SYDNEY NSW 2000
Address for service
3.
•
Ian Markham
•
•
•
Jade Ingham
•
John Setka
•
•
•
•
•
•
•
•
•
Justine Barrack
Jodey Moses
Joe McDonald
Kerryn Me Whinney
Kylie Wray
Martin Kingham
Michael Huddy
Michael Ravbar
Mick Robinson
Nicholas Fodor
Patrick Kenniff
•
•
Peter Close
•
•
•
•
Robert Kera
Rita Mallia
Roland Cummins
Shane Treadaway
Shaun Reardon
•
Tom Roberts
•
Zoran Boganovic
The parts responded to in these submissions are:
Part 5.2 BERT
Part 8 CFMEU Case Studies
Part 8.1 Introduction
Part 8.2 Bora]
Part 8.3 C-Bus
Part 8.4 Allegations by Mr Fitzpatrick
Pm1 8.5 NSW CFMEU Dealings with Alex Companies
Part 8.6 Document Destruction
Part 8. 7 Universal Cranes
Pa11 8.8 Hindmarsh
Part 8.9 FWBC Inspectors
2
Part 8.10 Pentridge Village Site
Part 8.11 Andrew Zaf
Pm1 8.12 Lis Con's Queensland Lockout.
4.
These case studies traverse many allegations. Counsel Assisting's submissions
run to 1300 pages in total and over half of those relate to the CFMEU case
studies. The CFMEU has had only 14 days to respond to those matters. The
time was insufficient to deal with all of the matters in a thorough manner.
5.
The case studies have largely ansen from complaints made by industry
participants. Key amongst these were Mr O'Neill from Lis-Con, Mr Smith
from Universal Cranes, Mr Kane from Boral, Mr Chiavaroli from Pentridge,
Mr Hassan from Hindmarsh, Mr Zaf who is a sub-contractor
and Mr
Fitzpatrick an ex Official of the NSW Branch of the Construction & General
Division.
6.
The CFMEU is one of the five unions named in in paragraph (b) of the Royal
Commission's Terms of Reference. It has received close attention from the
Royal Commission. 24 days of the Royal Commission's public hearings were
devoted to the CFMEU case studies. Approximately 120 witnesses were called
in those case studies.
7'.
The Commission has worked quickly and under timeframes that have not
allowed it to fully investigate the claims made by the various complainants.
Counsel Assisting's submissions candidly record in a number of places that the
investigation has not traversed all issues associated with the complaints.
Counsel Assisting acknowledges, for example, that the Royal Commission is
not aware of what damage Universal Cranes has suffered as a result of the
matters Mr Smith raises.
S.
The investigation into allegations made by Mr Fitzpatrick about the
relationship between the NSW Branch and the Alex Companies is ongoing.
The most serious of the allegations arising from that investigation, that officers
of the NSW branch received cash bribes, was, as Counsel Assisting submits,
unsubstantiated. There was insufficient evidence. A similar allegation by Mr
O'Neill that officers in the Queensland branch sought cash payments is also
3
described as unsubstantiated.
9.
As to the procedures followed by the Royal Commission in undertaking its
investigations, in some of the case studies the Royal Commission adopted the
procedure in Practice Direction 1. Material setting out the complaints to be
investigated was only provided on the morning of the hearing. This was the
case in the examples of Mr Kane, Mr O'Neill, Mr Fitzpatrick, Messrs
Chiavaroli and Mr Zaf. Those persons were then examined and elaborated
their complaints. That procedure required the CFMEU to file responsive
material before it was allowed to examine those witnesses to test their
allegations. None of their allegations were ever tested by Counsel Assisting.
10.
In the case of Mr Smith the procedure in Practice Direction 2 was adopted. Mr
Smith's material, which comprised almost 500 pages of material was provided
on 27 July 2014 with a direction that any responsive material be filed by 31
July 2014. Mr Smith made complaints dating back to 2003. Mr Ravbar
provided a response on 1 August dealing with the material as best he could in
the timeframe given. Counsel Assisting then announced in opening on 4
August that Mr Ravbar and others were involved in myriad offences including
serious criminal offences.
11.
Following complaint and application by the CFMEU the Royal Commission
allowed further material to be filed later. Mr Smith was still called to give
evidence on 4 August 2014 and his material was received. His material was
tested by the CFMEU on that day, before all material was gathered. Mr Ravbar
was examined extensively by Counsel Assisting about Mr Smith's complaints
and other matters on 6 and 7 August 2014, barely a week after he had first seen
Mr Smith's material. Counsel Assisting asserts that on the strength of that
examination Mr Ravbar should not be considered a credible witness and
findings of serious breaches of the Queensland Criminal Code should be made
against him.
12.
The CFMEU has co-operated with the Royal Commission's investigations.
Many union officers, employees and members have volunteered to give
evidence in response to the complainants to assist the Commission to gain a
fuller understanding of the issues raised. Almost invariably Counsel Assisting
4
has sought findings that the CFMEU witnesses are without credit, their
testimony is criticised and their motives impugned.
13.
In some matters the subject of the case studies are either before the courts or
subject to investigation by relevant statutory authorities. This is the case in
Boral, the FWBC inspectors and Hindmarsh matters. The CFMEU submits
that where this is the case no findings should be made. In these submissions
the CFMEU has not dealt with material that is the subject of proceedings or
investigation elsewhere.
14.
Despite these deficiencies, and others like them identified in the submissions
under each part heading, Counsel Assisting's submissions allege over 40
contraventions of law in the CFMEU case studies. Those contraventions
include serious criminal offences, contraventions of workplace laws, breaches
of consumer and competition laws and offences under the corporations law. In
some instances Counsel Assisting simply asserts that the material supports a
finding of unlawful conduct; in other instances Counsel Assisting suggests that
the conduct be referred to the DPP for action to be taken.
15.
For the reasons advanced under each of the case studies the CFMEU submits
that these conclusions are not warranted on the material gathered in the
investigation.
16.
Further the findings are unnecessary under the terms of reference. The terms of
reference require and authorise the Royal Commission to inquire into a number
of matters. Those matters include:
(g)
11.
any conduct which may amount to a breach of any law,
regulation or professional standard by any officer of an
employee association in order to
(i)
procure an advantage for the officer or another person
or organization; or
(ii)
cause a detriment to a person or organization.
This does not require the Royal Commission to form a view as to whether a
breach of law has occurred. It merely requires inquiry into whether that may be
5
the case. Counsel Assisting steps outside of the terms of reference by seeking
conclusions that contraventions of the law, criminal or civil have occurred.
Ultimately it is the role of the Courts to determine whether contraventions of
the law have occulTed. The inquiry by the Royal Commission is not intended
to, nor could it, usurp that role.
18,
The decision of the High Court in Balog v Independent Commission Against
Corruption (1990) 169 CLR 625 is instructive on the issue of a lack of power
in the ICAC to make findings of criminal guilt or corrupt conduct. The
statements of the High Court were made in respect of the ICAC however they
are equally applicable to this Royal Commission where its jurisdiction is
determined by its terms of reference. This Commission is purely an
investigative body and is not empowered to make findings of guilt. It is not a
body empowered to make findings as part ofthe criminal process. At 633 [19]
it was said:
The expression of a finding ofguilt or innocence of an offence or even of
a prima facie case against an individual, in a report which is bound to
be made public, must be likely to have a damaging effect on the
reputation of the person concerned. And whilst such a finding may not
necessarily have a tendency to interfere with the due administration of
justice in the event of a subsequent trial, the possibility cannot be
disregarded.
19.
In another context the Court drew a distinction between a finding of corrupt
conduct on the one hand and reporting the results of an investigation ([22] at
635):
At least in theory there may be a fine line between making a finding and
merely reporting the results of an investigation. But in practice the line
should not be difficult to draw. It is clear enough that there is a
distinction between the revelation of material which may support a
finding of corrupt conduct or the commission of an offence and the
actual expression of a finding that the material may or does establish
those matters. And in this case it is possible to observe that the only
finding which the Commission may include in its report in relation to the
appellants is a finding whether there is any evidence or sufficient
evidence warranting consideration of the prosecution of them or either
of them for a specified offence or specified offences. It may not include a
finding that any corrupt conduct on their part occurred or may have
occurred.
20.
That statement ought to be embraced by this Commission and adopted as a
guide to its functions.
21.
The Letters Patent contain no reference to a power such as would permit it to
make findings of criminal or civil wrongdoing or responsibility.
22.
In Investigating Corruption and Misconduct in Public Office' Peter Hall (now
Hall J) at [ 12.30] writes of the wide range of government bodies established to
"inquire" and "report" rather than decide an outcome. A Royal Commission's
power of inquiry is restricted by its terms of reference: Attorney General
(Commonwealth) v Queensland (1990) 25 FCR 125 at 144.
23.
The CFMEU submits that the Royal Commission should not make findings of
contraventions of the law. It is limited to investigating i.e. the gathering of
evidence and reporting on that evidence and making recommendations.
24.
In Part 19 Counsel Assisting's submission makes reference to areas of reform
and points out that it is neither possible nor appropriate to make final
recommendations at this stage. The submission goes on to make some
observations about material gathered thus far in the investigation. In a
submission unrelated to the case studies Counsel Assisting refers to the
evidence of the Assistant Commissioner Fontana about the need for bolstering
the regulatory framework in the construction industif. The CFMEU makes no
submission at this stage about that matter but points out that in his testimony
the Assistant Commissioner made a number of concessions that his evidence
was incorrect. In pm1icular, Mr Fontana apologised for asserting that a person
who was a member of the CFMEU and also a member of a motorcycle gang
was a senior union official. 3 Mr Fontana also conceded that despite the general
assertions in his statement to the Royal Commission, no union officers have
been arrested or charged for corruption, drug trades, blackmail or extortion.4
25.
Mr Fontana accepted the proposition that the CFMEU has both written to the
Commission and has been on the public record to the effect that the CFMEU
1
Law Book Co. 2004
Counsel Assisting's submissions at Part 19.6, paragraph 18
3
S.A. Fontana T:209.24
4
S.A. Fontana T:207.3- T:208.4
2
7
does not accept any fmm of corruption and is opposed it. Further, the CFMEU
is on the public record as stating that it will cooperate with any police
investigation and act on any finding of corruption within its ranks.
26.
A general submission is made about the approach Counsel Assisting has taken
to gaps in the investigation. Particularly where those gaps arise because the
Royal Commission has not sought to bring forward material.
27.
In the course of submissions in a number of places Counsel Assisting has
sought to support adverse findings against the CFMEU and/or its officials on
the basis of inferences said to be able to be drawn from the CFMEU not
putting forward witnesses to refute certain facts, analogous to the inferences a
party in litigation may seek to be drawn in such circumstances, relying upon
Jones v Dunkel ( 1959) 101 CLR 298 and related cases.
28.
It is submitted that this betrays a fundamental misunderstanding of the
essential differences between proceedings before a Commission and a court.
29.
There are a number of significant differences between curial proceedings and
proceedings before this Commission. They include:
(a)
This Commission unlike a court was created to investigate and report.
(b)
Parties or persons of interest or persons who receive a notice advising of
the possibility that adverse evidence will be aired in a Commission
unlike parties in court proceedings do not join issue through pleadings or
any like procedure.
(c)
The Commission has extensive powers to assist it in its investigations
including the powers to summons people to appear before it to answer
its questions. In curial proceedings it is the parties who direct questions
to witnesses.
(d)
The Commission determines who should be called to give evidence and
what evidence can and should be received, the order in which the
evidence is received and how much material should be disclosed to the
public or a person adversely affected by it. Ultimately every witness
called to give evidence is called by Counsel Assisting. This underlines
the essential difference between a court and a Commission.
8
30.
If the Commission chooses to call evidence from only some of the witnesses to
an event and chooses not to call evidence from others who are likely to have
relevant evidence it is inappropriate to apply the rule in Jones v Dunkel to its
proceedings to support findings made by that Commission.
:u.
To argue that the principles of Jones v Dunkel apply to a Commission is to
leave open the conclusion that in a circumstance where a Commission has
determined not to call an available witness who might be expected to give
evidence, it has done so because it feared to adduce that evidence and this fear
suggests that had the evidence been brought forward it would not have assisted
it. This must be the rational consequence of Counsel Assisting's submissions.
32.
One consequence of the Commission determining not to call a relevant witness
is that when it comes to making findings the Commission will be left with only
some of the available evidence. Its findings therefore will necessarily not
reflect that evidence which it has chosen not to call and therefore its findings
should properly reflect that qualification.
33.
It is no answer to this submission to say that it was always open to a witness to
come forward. There is no obligation upon any person to volunteer evidence to
a Commission in the usual course of events. Indeed there may be many valid
reasons why a person would not choose to volunteer to be a witness before a
Commission which are not inconsistent with a denial of the facts that might
otherwise support an adverse finding against that person.
34.
In circumstances where a person has notice of the possibility of an adverse
finding and that person chooses not to provide a contrary version it is likely
that the person would not be heard to claim a lack of an opportunity to
volunteer to be heard, however, that does not provide support for the cogency
of an adverse finding against a person when the Commission has chosen not to
call that person to give evidence.
35.
The submissions above are pressed in relation to all case studies before the
Commission where the Commission has chosen not to call relevant witnesses
when they were available to be called by Counsel Assisting.
9
36.
The CFMEU submits that the Royal Commission should report on the material
it has gathered in the investigation. It should not report based on Jones v
Dunkel type inferences. If contrary to the submissions made above the
Commission determines to make findings of fact it should base its findings
upon evidence rather than inferences drawn from the absence of evidence and
the Commission should acknowledge the gaps in its investigations.
10
PART 5.2
BERT
J.
A number of specific findings are sought against the CFMEU, Mr Ravbar and
the other union appointed directors.
2.
By way of example only, it is suggested at [121], p454 that Mr Ravbar and the
other union appointed directors "procured and induced BERT to conunit [a]
breach of trust" by "pressur[ing] Mr Wallace to make the payments in the face
of legal advice from the company's own lawyers and a deadlocked board."
3.
This allegation is denied.
4.
In circumstances where Mr Wallace does not suggest that he was pressured by
Mr Ravbar or any other union official5, it is not apparent what the evidential
basis is for Counsel Assisting's submission.
5.
The CFMEU, Mr Ravbar and the other union appointed directors will respond to
the submissions of Counsel Assisting once it has had the opportunity to consider
the submissions filed by BERT.
5
T34.32.
lJ
PART 8.2
BORAL
1.
The submissions in this part are made on behalf of the CFMEU, Shaun Reardon
and John Setka.
INCOMPLETE UNDERSTANDING OF THE RELEVANT FACTS
2.
In many parts of the submissions, Counsel Assisting calls for the Royal
Commission to make concluded findings of criminal conduct in addition to
seeking recommendations that the Royal Commission should recommend that
the State of Victoria seek advice from the DPP in relation to the prosecution of
the CFMEU ([204], p 613) and Mr Setka and Mr Reardon ([208], p 614).
3.
These conclusions are urged despite the concession made by Counsel Assisting
that the Royal Commission does not have "a complete understanding of the
relevant facts and issues" ([223], p 618).
4.
That concession is, of course, appropriate in the light of the many relevant
witnesses that have not been called by Counsel Assisting in respect of the
Boral case study and the fact that the processes adopted did not give the
CFMEU a fair time to consider and respond to the allegations which were
made.
5.
It is impossible to reconcile Counsel Assisting's concession that the Royal
Commission does not have "a complete understanding of the relevant facts and
issues" with the suggestion that concluded findings be made.
6.
The processes adopted by Counsel Assisting in respect of the Bora I case study
must also be borne in mind.
7.
The service of statements upon the CFMEU before the resumed hearing on 18
September 2014 occuned in the following manner:
a.
On 29 August 2014, the CFMEU was served with the statements of
Mark Milano, Brett Young and Anthony Simpson;
b.
On 5 September 2014, the CFMEU was served with the statement of
Steven Richardson;
c.
On 9 September 2014, the CFMEU was served with the statements of
Darren Dudley and Fabrizio Ubaldi;
d.
At 11: 15pm on the evening of 17 September 2014, the CFMEU was
served with the statements ofMichae1 Newitt and Ben Cifali;
e.
At 9:46am on the morning of 18 September 2014, the CFMEU was
served with the statement of Santi Mangano.
8.
It was not possible for the CFMEU to investigate the many and varied
allegations made in statements served in the days and in some cases hours
before the resumed hearing.
Apart from anything else the CFMEU was
occupied in hearings during 1-4 September 2014 on other case studies.
FAILURE TO CALL RELEVANT WITNESSES
9.
In the case of Mr Setka and Mr Reardon, Counsel Assisting urges a concluded
finding of criminal conduct for blackmail under s 87 of the C1imes Act 1958
(Vic) ([217]-[219], p 616-617).
10.
The submissions adopt the form of running a quasi trial, for example, by
foreshadowing and then dismissing defences that may be run by Mr Setka and
Mr Reardon in respect of the allegation ([215], p 616).
11.
In substance, by urging concluded findings Counsel Assisting seems to wish to
reserve for the Royal Commission the role ofjury.
12.
In the case of the alleged blackmail, in circumstances where neither Mr Setka
nor Mr Reardon were called to give evidence, the submission that there be a
concluded finding by the Royal Commission is extraordinary.
1:3
13.
The elements of a criminal offence cannot be established, particularly, given
the approach which Counsel Assisting has adopted in not calling relevant
witnesses.
14.
The same submission is made in respect ofthe attempt by Counsel Assisting to
urge upon the Royal Commission a finding that there has been a contravention
of the cartel provisions.
15.
Leaving aside the attempted novel use of the cartel provisions (as opposed to
secondary boycott provisions) in the context of the Boral case study, a
concluded finding cannot be made in the absence of evidence from relevant
witnesses.
MR KANE'S COMPLAINTS
16.
Counsel Assisting concedes that "a good deal of evidence given by the Boral
witnesses is hearsay" ([ 144], p 596).
17.
This was most stark in the case of Mr Kane.
18.
Mr Kane's hearsay and submission based evidence provided by letter to the
Royal Commission should not be accepted.
19.
There were plain inaccuracies in his account.
20.
By way of example, Mr Kane stated that Boral had "explored all available
legal avenues to obtain appropriate redress",
unsuccessful in enforcing these injunctions"
and had been "singularly
and that Boral's claims "are
currently tied up in procedural issues".
21.
In fact, Boral has taken no steps to enforce the injunctions with respect to any
of the post-injunction conduct that the Boral witnesses put before the Royal
Commission.
22.
Material filed with the Royal Commission by Boral makes it clear that Boral
were aware, since March 2013, that enforcement of the injunction required
14
them to issue a charge of contempt. On 15 March 2013 Linda Maney (who has
a law degree and had previously practiced as a lawyer) sent an email to Paul
Dalton and others in which she relates two instances that day of shop stewards
telling Boral customers not to use Boral. She says that she has since spoken to
'Deanna' (Deanna Oberon, then a Partner at FCB Group, Boral's solicitors)
about the two instances and states:
In regard to the two instances of bans Deanna confirmed that they go to
contempt and will be used as evidence in any 'charge' (of contempt)
application made by us.
She tells me that she believes the ball is in our court in terms of instructing
them to make that charge application.
Should we schedule a hook up to discuss the next steps? Let me know and I'll
get one organised.
21.
Despite Boral receiving this legal advice on 15 March 2013, it was not until
more than 5 months later (22 August 2013) that Boral issued a single contempt
charge with respect to conduct it alleged to be a continuation of the secondary
boycott.
That contempt charge was not made with respect to any of the
conduct alleged in statements put to the Commission by Boral witnesses.
24.
The contempt charge was made with respect to an alleged single, two hour,
incident in May 2013 at a site not mentioned by any ofthe Boral witnesses.
2S.
Boral issued the charge summons in August 2013, more than three months
after the alleged conduct. That charge makes no allegation of any ongoing
large-scale secondary boycott by the union.
2"6.
A trial for the contempt charge was fixed for November 2013, just II weeks
after the contempt proceeding was initiated. It was Boral which successfully
sought that those trial dates be vacated, over the opposition of the CFMEU.
27.
The conduct which is the subject of Boral's contempt application is also the
subject of a proceeding issued in the Federal Cou11 by the Fair Work Building
15
Industry Inspectorate. The application by the Fair Work Building Industry
Inspectorate makes no allegation that the conduct related to a secondary
boycott. The application alleges that the disputed conduct occurred as a
consequence of a dispute between the union and the site's builder.
28.
During Mr Kane's evidence, the Commissioner asked Boral's legal team to
provide details of "any attempts on the part of the plaintiffs to get expedition,
to get speed, because the evidence you have been giving is very disturbing, in
terms of the unreality of legal protection.". Despite this request, nothing has
been put into evidence which demonstrates that Boral took up this invitation.
29.
Boral has issued no contempt proceeding nor taken any other legal action over
the alleged meeting at a cafe between Bora) representatives and Messrs Setka
and Reardon on 23 April2013 which is the subject of the blackmail allegation.
Mr Kane did not say that Boral had reported that meeting to the Victoria
Police. He did say that what Boral alleges happened at the meeting amounted
to blackmail. Counsel Assisting have taken up Mr Kane's suggestion.
30.
There is no explanation by Bora) as to why it is using the forum of the Royal
Commission to air complaints and make allegations which it does not appear
able or willing to prosecute through the Courts.
31.
In this respect, the CFMEU notes Counsel Assisting's concession that it is
premature to make recommendations for reform without having a complete
understanding of the relevant facts and issues ([223], p 618).
CURRENT LITIGATION AND INVESTIGATION
32.
A brief summary of the current and pending litigation and investigation
concerning Boral and the CFMEU is as follows:
a.
there are proceedings for damages on foot by Boral in the Supreme
Court of Victoria (CI 2013 00928) , in which there is an application
pending before the Court of Appeal;
b.
there are contempt proceedings brought by Boral in the Supreme Court
16
ofVictoria (SCI 2013 00928, S APCI 2013 0170, S APCI 2014 0038) ,
in which there is an application pending before the High Court;
c.
there are civil penalty proceedings brought in the Federal Court by the
Fair Work Building Industry Inspectorate (VID 282/2014) , in which a
judgment is reserved;
d.
there is a formal investigation by the ACCC (submissions at [96], p
585).
33.
Counsel Assisting place insufficient weight on the status of the current
litigation and investigations (submissions at [134]-[141] p 592-594). Counsel
Assisting's submissions on this matter are inconsistent with those made with
respect to the HSU where "the Commission has not sought to reinvestigate
matters that are, or have been, the subject of litigation", noting that "there will
be cases where it is undesirable for the Commission to make ultimate findings
in respect of claims that are or are likely to be heard and determined by a
Court. A view has been taken that this is the case in relation to some matters
concerning Ms Jackson".
34.
With respect to allegations concerning misuse by Ms Kathy Jackson of union
credit cards, Counsel Assisting submits that "[g]iven that this issue is being or
is likely to be determined by the Federal Court the view has been taken that, in
all circumstances, it is not appropriate to deal with the issue at this stage".
35.
Counsel assisting offer no explanation as to why it is undesirable for the
Commission to make ultimate findings against Ms Jackson in reference to
claims which are or are likely to be heard and determined by a Court, yet
apparently desirable for the Commission to make ultimate findings against the
CFMEU and Messrs Setka and Reardon in respect of claims which are or are
likely to be heard and detennined by a Court. The findings against the CFMEU
and Messrs Setka and Reardon suggested by Counsel Assisting were of course
urged upon the Commission by Boral CEO Mr Kane.
36.
Each of these cases and investigations traverse directly into the matters the
subject of the Boral case study. Given the matters are extant the CFMEU does
17
not propose to make any further submissions other than to submit that no
findings should be made by the Royal Commission whilst these matters are
before the Court and the subject of investigation by the regulator.
18
PART 8.3
CBUS
1.
These submissions are made on behalf of the CFMEU and Mr Tom Roberts.
MRROBERTS
2.
The central allegation in relation to Mr Roberts in the submission of Counsel
Assisting is that 'as at 24 October 2014 Mr Roberts did not genuinely believe
that the folder of materials provided to him by Mr Fitzpatrick on 15 July 2013
included the Zanatta spreadsheets. ' 6 This submission significantly misrepresents
the evidence that was given by Mr Roberts.
3.
Any fair reading of the evidence indicates that Mr Roberts' consistently held
belief was that the contents of the yellow folder that was handed over to the
CFMEU's solicitors in May 2014 contained the documents that were provided
to Mr Roberts by Mr Fitzpatrick on 15 July 2013 and that this included the
Zanatta spreadsheets. Notwithstanding that belief, Mr Roberts also conceded on
24 October that in light of Zanatta's evidence on 3 October, his recollection as
to the content of the folder may have been incorrect.
4.
The submission of Counsel Assisting on this issue makes much of a line of
questioning that was put to Mr Roberts on 24 October as to whether he knew
whether documents marked 'Fitzpatrick MFI 3' were the exact documents which
fonned part of the folder of material that had been provided to him by Mr
Fitzpatrick. Mr Roberts' evidence was that he could not be sure that the
originals ofthe spreadsheets which were presented to him in the witness box by
Counsel Assisting on that day were contained within the yellow folder or
whether that folder had contained mere copies of those documents.
5.
Nothing turns on whether Mr Robe11s could recall in October 2014 whether the
documents handed over in May, 5 months later, were originals or copies. This is
6
Submissions 8.3 paragraph 234.
19
understandable particularly given that there were various copies, both redacted
and un-redacted, in use as part of the Commission's proceedings. Mr Roberts
was being honest about the state of his recollection of the documents that were
ultimately handed over to the CFMEU's solicitors and the Commission. His
evidence on the issue did not 'unravel'. Certainly it cannot be said, as Counsel
Assisting asserts/ that Mr Roberts accepted that he did not know whether either
the original spreadsheet or an identical copy, were contained in the yellow
folder. That proposition simply does not follow either from the evidence that
was given, or as a matter of logic. Nor does it disclose any inconsistency
between the evidence Mr Roberts gave in September and that given on 24
October. Nor was that proposition ever put squarely to Mr Robe11s.
6.
The fact that there was a discrepancy in the size of the yellow folder and TR 9 is
explained by the fact that the yellow folder was provided to the Commission
without the additional copy of the spreadsheets. This was because there had
been some inadvertent notations made by the CFMEU's counsel on that copy.
Nonetheless it was accepted by the Commission's lawyers that the yellow folder
had contained an original and a copy and that there was no need to provide a
further copy when the yellow folder was produced.
7.
No adverse inferences should be drawn from the fact that neither the CFMEU
nor Mr Roberts highlighted the importance of the Zanatta spreadsheets when Mr
Roberts' statement was provided. Mr Roberts simply and quite properly annexed
the entirety of the folder to his statement. Nor did he have a view as to the
relevance of the date that the folder was given to him by Mr Fitzpatrick. In his
words he 'simply took the file as it was and gave it to Slater and Gordon. ,x
8.
Counsel Assisting also calls into question the credibility of Mr Robe11s'
statement at the time it was made. The statement was made and provided
voluntarily in circumstances where Mr Fitzpatrick had said nothing in his
evidence about the meeting with Mr Roberts on 15 July 2013 or the handing
over to him of any Lis-Con documents.
7
8
Paragraph 232.
Transcript 24/1 0 14
page 1061, lines 39-41.
20
9.
Whilst there was some evidence that the contentious documents may have been
created after 15 July 2013 at the time Mr Roberts' statement was provided, the
suggestion that Mr Roberts would voluntarily contrive a version of events to try
to protect Mr Parker and the union knowing at the time that such an account
would run contrary to evidence already received, including records that were
electronically verifiable as to date, source etc., cannot and should not be
accepted. There is simply no basis in the evidence for such a suggestion. In the
absence of this basis, Counsel Assisting and others have attempted to portray Mr
Roberts as some sort of zealot who was prepared to do and say anything for 'the
cause'. The attempt to discredit his evidence on the basis of his response to the
question about union work as a 'vocation' 9 is an example of this approach.
'Vocation' has a number of accepted meanings and Mr Roberts was entitled in
the circumstances to seek clarification as to which meaning was being advanced.
10.
In any event, there remained some uncertainty about the origin/date of the
documents at the time Mr Roberts' statement was made. There was in evidence
a request for information from Superpartners prior to 15 July made by Mr
McWhinney to Mr Walls. On 9 July, Mr Walls emailed others within
Superpartners asking for Mr McWhinney request to be processed in full even
though Mr McWhinney had emailed ten minutes earlier asking for a more
limited range of information to be provided. 10 There was no evidence as to
whether and if so how, that earlier request for information was countermanded
by Mr Walls. The Walls' email also said that McWhinney had confirmed via
email that the fund was happy to pay the (processing) fee. 11 This email was
never put into evidence. Mr Walls was not examined by Counsel Assisting as to
why the request was made after Mr McWhinney had asked for less information
or if, when or how the request was rescinded. Nor was he or anyone else asked
who created the document which was ultimately provided to Mr McWhinney.
11.
There was also evidence on 7 July 2014 to the effect that Mr McWhinney's
emails were not part of the CBUS investigation and that Mr McWhinney had not
been spoken to by KPMG. KPMG had also not conducted further procedures to
determine if the information had been leaked by other means for example a
9
Submissions at paragraph 227.
MFI 1 - Ch A Vol 1 tab 9 pg. 36
11
MFII- Ch A Vol 1 tab 12 pg. 48
10
21
printed hard copy. 11 The KPMG report covered the period 1 January 2013 to 12
May 2014 and concluded that there were 59 instances of CBUS members'
personal information being emailed externally and in some cases, disclosed to
union officials. These matters provide a reasonable basis for a view that the
contentious documents had been generated prior to the 15 July meeting between
Mr Roberts and Mr Fitzpatrick and that this possibility had not been foreclosed
at the time Mr Roberts' statement was provided to the Commission.
12.
The evidence of Mr Fitzpatrick as to the contents of the documents that were
provided to Mr Roberts was that they went well beyond the document that had
been emailed by Mr MeWhinney. Mr Fitzpatrick said '/ also put in information
about their BUS and ACIRT payments being in arrears, because I also checked
out with Bob McWhinney that, not only the copy he sent me but I believe I went
back six months with him and asked him to give me a record of their payments
over six months, each month, for how many men; that probably would have been
in there. ' 13 Whilst this evidence was given after Mr Roberts' statement was
provided, even on Mr Fitzpatrick's version of events there was more material
provided by him about Lis-Con arrears than the six page McWhinney
attachment and
this provides some further basis for a view that the more
detailed documents had been provided to Fitzpatrick by 15 July.
13.
The submissions of Counsel Assisting criticise the evidence of Mr Robe11s on
the basis that given Ms Zanatta's evidence he was not prepared on the one hand
to completely change his recollection of the documents that he had been
provided with 14, and on the other, that he had in fact changed his mind between
23 September and 24 October 15 •
14.
The evidence of Mr Roberts on 23 September as to the documents and the date
of the meeting was given to the 'absolute best of (his) recollection'. 16 Mr
Roberts maintained that he was confident in his recollection of the documents
when he originally gave evidence and said that his recollection remained as it
was then when he was recalled, however he readily accepted that the evidence
12
Transcript 7 '7/14 page 921ine 19, page 100, line 28.
Transcript 2419/ 14 - page 309 lines 41-47 and page 312, lines 42-47.
14
Submissions paragraph 226
15
Submissions paragraph 230.
16
Transcript 23/9114- page 231, line 20.
13
22
suggesting the documents did not come into existence until after 15 July was
strong and that there was a prospect that his recollection was incorrect. 17
15..
He could not change his recollection. His recollection he conceded may have
been wrong. There is no evidence to indicate that Mr Roberts' evidence was
anything other than his best recollection at the time. The submission that caries
with it the allegation that Mr Roberts' evidence was other than honest if
accepted has grave implications for Mr Roberts. It is not supported by cogent
evidence. There was ample opportunity for Mr Roberts to have an incorrect
recollection of what was contained in the folder that was given to him by Mr
Fitzpatrick. There is no cogent evidence that Mr Roberts would knowingly give
false evidence for the benefit of another. There is no evidence of any personal
relationship or ties with Mr Parker. In as much as Counsel Assisting relies upon
the notion of Mr Roberts having a "vocation" to support this serious allegation
he ignores the patent fact that the gravamen of the allegation against the union,
i.e. that the private information had been provided to the union and had
thereafter been used by an officer of the union was a given. Beyond that there
was (and indeed remains) an inference available that Mr Fitzpatrick came into
possession of similar or identical material before 15 July 2014. In all of those
circumstances the Briginshaw 18 test cannot be satisfied. The findings sought
against Mr Roberts should not be made.
17
18
Transcript 24/10/14- page 1052, lines 8-17.
( 1938) 60 CLR 336 at 362.
PART 8.4
ALLEGATIONS BY MR FITZPATRICK
OVERVIEW
J•
The CFMEU does not adopt the heading used by Counsel Assisting in this
part. Counsel Assisting's heading records a finding which is unfair and
damaging to the reputation of Mr Greenfield. Where an allegation is made of
criminal conduct Mr Greenfield is entitled to the presumption of innocence.
2.
The submissions in this part are made on behalf of the CFMEU, Darren
Greenfield and Rita Mallia.
3.
In overview, the CFMEU disagrees with the conclusions and recommendations
of Counsel Assisting in paragraph 2 on p700 of the submissions. More
specifically:
(a)
the material gathered by the Royal Commission in its investigation
reveals a contest between Mr Greenfield and Mr Fitzpatrick as to the
content of the phone call. That material is insufficient to provide a
resolution to that contest by way of finding as to what was said;
(b)
the Royal Commission should not form and express conclusions that Mr
Greenfield committed criminal offences. That is not the Royal
Commission's function. It is beyond the jurisdiction of the Commission.
Similarly, it is not the Royal Commission's role to make findings about
whether Mr Greenfield breached the CFMEU's published standards;
(c)
the material gathered by the Royal Commission does not support a
finding that Mr Parker and Ms Mallia did not properly investigate the
phone call fi·om Mr Greenfield to Mr Fitzpatrick. Mr Parker and Ms
Mallia instigated a general investigation by Mr McDonald, a disciplinary
investigation by Ms Mallia and an extraordinary meeting of the Branch's
Committee of Management to deal with the claim;
(d)
the material gathered by the Royal Commission does not support a
conclusion that Mr Parker and Ms Mallia set about marginalising and
24
attempting to remove Mr Fitzpatrick after he complained about the way
the phone call had been handled and his complaints about the nature and
extent of the CFMEU's dealings with the Alex companies; and
(e)
there was no dereliction of duty in Mr Parker and Ms Mallia's response
to the phone call.
4.
Throughout the submission reference is made to Mr Fitzpatrick's complaints
about the CFMEU's relationship with the Alex companies. Counsel Assisting
has made the question of the CFMEU's relationship with the Alex companies a
separate case study. That case study is the subject of ongoing investigation.
Despite this, reference is made to those complaints made by Mr Fitzpatrick as
motivating factors in his treatment 19• The Royal Commission should not prejudge in this part the matter of the relationship between Mr Alex and the
CFMEU as it is a matter which is still under investigation.
RELEVANT FACTS
A
Background
5.
Counsel Assisting's submissions concernmg the facts relevant to this case
study are not balanced. The submissions do not present the many conflicting
accounts in the witness statements and testimony of the various witnesses. The
Royal Commission is not an inter parties curial process. The Commission is
required to investigate and report in the public interest. The material that has
been received should be presented and analysed in a balanced way. The
CFMEU is not a party to proceedings. It has not had the ability to present
evidence in response to a pleaded case. Rather the CFMEU has participated in
an inquiry and responded by providing witness statements, often on short
notice, on matters raised by witnesses called by the Royal Commission. Those
witnesses have also given testimony.
6.
In relation to Mr Fitzpatrick's testimony a number of witnesses were called
and many matters raised by Mr Fitzpatrick were challenged. Those challenges
are for a large part ignored by Counsel Assisting. The short timeframe to
respond to Counsel Assisting's submissions prevents the CFMEU from dealing
19
At paragraphs 2(d), 14 - 22, 23, 35, 42, 46, 134, 150,
25
with all of those conflicts. It can be seen from what follows however that the
approach of Counsel Assisting of adopting Mr Fitzpatrick's evidence as a
reference point for all findings has led to a misstatement of the events. In some
instances it is clear that Mr Fitzpatrick's tendency to generalise, and Counsel
Asssiting's failure to probe these generalisations, has contributed to these
errors. In other areas key dates are misstated because Mr Fitzpatrick has erred
and witnesses who provide reliable or corroborated accounts are simply
ignored.
7.
The rhetorical flourish at the end of paragraph 6 on page 701 describing Mr
Fitzpatrick with a reputation as "a staunch unionist and fierce defender of
workers" is unwarranted and demonstrates the bias on behalf of Counsel
Assisting that should not be adopted by the Royal Commission.
8.
Counsel Assisting at paragraph 10 unfairly adopts Mr Fitzpatrick's description
of Mr Parker as mixing with the rich and famous. The Royal Commission
should note that Mr Parker has been an official of the branch for 25 years. In that
time Mr Parker has held elected positions on the executive of the Branch and
was elected by the membership to lead the Branch as Secretary in 2011 20 .
9.
Similarly, Ms Mallia has worked at the union for 17.5 years and was elected by
the membership to the leadership role ofPresident ofthe Branch in 2011 21 •
10.
Mr McDonald, a former and well respected Secretary of the Branch described
his regard for Mr Parker and Ms Mallia attesting to a high level of respect for
both and observing the integrity, commitment and honesty of both. Mr
McDonald said that they both have high standing with the union membership
which has shown confidence in their leadership.22
11.
Counsel Assisting similarly simply adopts Mr Fitzpatrick's description of Mr
Greenfield at paragraphs 11 to 13 without any attempt at analysis or testing. Yet
the material shows that Mr Greenfield has extensive experience in the
construction industrl 3. He was an on-the-job delegate of the CFMEU for 12
20
Statement of Brian Fitzpatrick [ 17]
Statement of Rita Mallia 151811 4 [3]
22
Statement of Don McDonald 1518!1 4 [17]
23
Statement ofDarren Greenfield 15/8114 [3]
21
26
years and held elected roles on the Committee of Management of the Branch for
4 years. He was elected to his current position of organiser in 2012 24 . Mr
Greenfield presented as hard worker who represented union members diligently
and competently. At the private hearing on 22 August 2014 Mr Greenfield
described his job as stressful and involving long hours. He described leaving
home at 5.00 in the morning and returning home at 7.00-7.30 at nighr5 •
12.
Mr Fitzpatrick's description ofMr Greenfield as someone who had a reputation
for assaulting people was self-serving and completely uncorroborated. There is
no suggestion by anyone other than Mr Fitzpatrick of such a reputation. Mr
Greenfield denied it26 • There is no material before the Royal Commission to
suggest that Mr Fitzpatrick's description has any basis in fact whatsoever.
13.
As Counsel Assisting notes, the efforts by Mr Greenfield to recover arrears for
Elite Holdings employees prior to March 2013 is the subject of ongoing
investigation. The matters raised at paragraphs 23 to 28 of the submission
simply conclude that the material gathered on that topic is troubling. The
material gathered by the Royal Commission is not troubling it shows efforts
were made by Mr Greenfield to recover the Cbus arrears and ACIRT arrears for
Elite Holdings prior to March 2013 27 •
14.
At paragraph 45 Counsel Assisting urges a finding contrary to the direct
testimony of Mr Greenfield about his understanding that Mr Fitzpatrick had
been instructed not to get involved in scaffolding issues by Mr Parker and Mr
Kera. Counsel Assisting suggests that Mr Greenfield should not be believed
because no witness from the CFMEU gave evidence that such an instruction
was given. This is an example of Counsel Assisting taking an adversarial
approach in the investigation and avoiding or ignoring the role of independent
unbiased investigator. The CFMEU is not a party to the investigation. If
Counsel Assisting wanted to further investigate that conflict the Royal
Commission could summons and question Mr Parker and Mr Kera on this and
other matters of contested fact. On this issue it failed to do so. The lack of
24
Statement ofMr Greenfield 15/8. 14 [2] ff
Darren Greenfield 221811 4 T9.40 - 10.10
26
Darren Greenfield 3•10/14 T71 0.8
27
See for example Mr Westerway's testimony on 2519 '14 that Mr Greenfield had pursued the arrears
prior to 27 March 2013 T408.5 which supports Greenfield statement 12 r9114 [5]
25
27
corroboration should not be visited upon Mr Greenfield.
15.
The other matters referred to in paragraphs 45 and 46 do not lead to a
conclusion that Mr Greenfield's irritation at Mr Fitzpatrick's interference in
scaffolding matters was based on a concern that Mr Fitzpatrick was taking
action against Mr Alex's interests. It is clear on the material before the Royal
Commission that there was a demarcation in the work of Mr Fitzpatrick and
Mr Greenfield. Mr Greenfield reacted to Mr Fitzpatrick working in the
scaffolding sector and ultimately reacted to a report from an employer
representative, Mr Westerway, that Mr Fitzpatrick was pursuing arrears against
a scaffolding company and while doing do was personally critical of him28 •
Counsel Assisting's attempt to read another motive into that reaction is
unfounded speculation.
B.
27 March Phone call
16.
Mr Greenfield rang Mr Fitzpatrick on 27 March 2013 at 5.07 pm. Mr
Fitzpatrick and Mr Greenfield are at odds about what was said during that
phone call. There is no incontrovertible objective fact to establish what was
said. There is no recording of the conversation. The conversation occurred
over 18 months ago. As Counsel Assisting points out the first written account
of the words used in the conversation was taken in May 2013, two months
after the call. The conflicting accounts of the content of the conversation have
been recounted a number of times since then.
17.
Despite this, Counsel Assisting urges on the Royal Commission a finding that
Mr Fitzpatrick's latest account be believed. Further, on the basis of that finding
Counsel Assisting asks the Royal Commission to conclude that Mr Greenfield
committed offences under the Criminal Code (Cth) and the NSW Crimes Act
1900.
18.
Putting aside the undesirability of a Royal Commission making findings that
criminal conduct has occurred, the Royal Commission should be reluctant to
make the finding that Mr Greenfield made a death threat to Mr Fitzpatrick. The
finding itself is a serious matter. It requires the application of the principle in
28
Greenfield Statement [23] to [25]
28
Briginshaw v Briginshaw (1938) 60 CLR 336. The CFMEU submits that the
material before the Royal Commission does not justify a finding that Mr
Greenfield has committed a criminal act.
19.
The materials gathered by the Royal Commission and relied upon by Counsel
Assisting in this regard are the various and varying versions of the call given
by Messrs Fitzpatrick and Greenfield and the surrounding circumstances of the
call. Counsel Assisting refers to the account of Ms Raju of her encounter with
Mr Fitzpatrick after the call, the account of Mr Thomas of his encounter with
Mr Fitzpatrick after the call, Mr Fitzpatrick's accounts of what he said after the
call to Mr Parker, minor conflicts in Mr Greenfield's accounts of the
conversation at various times, Mr Fitzpatrick's credibility generally and Mr
Greenfield's unreliability. Significantly, Counsel Assisting does not refer to
the recording of the account Mr Fitzpatrick gave to a 000 operator shortly after
the call on 27 March 2013.
20.
Mr Greenfield admits to making an abusive phone call. His account has
differed in the manner described by Counsel Assisting however his account of
the tenor of the call and the reason for it has not. Mr Fitzpatrick' s account of
the phone call has also differed. In his statement he says that Mr Greenfield
said29 :
You have gone too far this time you fucking fat cunt. You're dead. I'm
going to kill you. You understand? I don't care how many police you've
got with you, I'm going to kill you. You 're dead.
21.
The account he gave to the 000 telephone call operator shortly after the call
was received, the recording of which was played at the hearing on 15 July
2014, was:
I don't give a fuck how many people are there, I'm going to kill you
tomorrow, you 're gone, you bastard, you fat so-and-so.
22.
Returning to the account in Mr Fitzpatrick's statement, the sentiment in the
first sentence is consistent with Mr Greenfield's account that he was abusive
and that he rang to tell Mr Fitzpatrick he had gone too far by interfering with
29
Fitzpatrick statement 1417114 [61]
29
his work.
23.
The second, third, fifth and sixth sentences of Mr Fitzpatrick's latest account
each constitute a death threat. The fifth sentence also refers to the presence of
police. Neither Mr Fitzpatrick nor Counsel Assisting offer any explanation as
to why Mr Greenfield would refer to police in the call.
24.
The differences in the version in the statement and the version in the recording
of the contemporaneous 000 phone conversation are also not explained. It is
open to conclude that Mr Fitzpatrick has embellished his account for the
purpose of giving testimony to the Royal Commission.
25.
It is noteworthy that Mr Fitzpatrick had, just prior to 27 March 2013, received
the benefit of the AVO referred to in paragraph 55 of Counsel Assisting's
submission. That AVO arose from death threats from Mr Ian Fraser. It is
uncontested and indeed incontestable that Mr Fitzpatrick believed that Mr
Fraser was the caller and gave the version of the call in the 000 call in that
belief. The reaction that Mr Thomas and Ms Raju observed were also reactions
informed at the time by a belief that Mr Fraser had called in an abusive manner
and made death threats.
26.
Mr Fitzpatrick however changed his mood and demeanour after learning that it
was Mr Greenfield who made the call. He stated to Mr Parker that he was
willing to accept an apology from Mr Greenfield for the phone call and was
willing to meet with Mr Greenfield to sort out what was behind it. Clearly once
he knew that the call was made by Mr Greenfield he did not regard the
conversation in the call as a threat to his life. At paragraph 71 Counsel
Assisting only extracts a portion of Mr Fitzpatrick's account of that
conversation. The full account given by Mr Fitzpatrick of the conversation he
had with Mr Parker was as follows 30 :
Brian, I suggest you go and talk to Darren and if he's prepared
to say, 'Look, I was heated up, I 11·as hot under the collar. I
didn't mean I was literally going to kill him', you know, just say,
look, you know, regret, that type of thing, we can get on with
30
Brian Fitzpatrick 1517ll4 T:29. 26-45
30
life. You know, I'm not going to push it." I said, "But other than
that I'm going to have to.follow it up because I can't leave this
go because we're talking about a person who is dealing with
George Alex." And George Alex has got a history of, you know,
some pretty colowful things to say the least, so I had to put it
on the record.
27..
In his statement Mr Fitzpatrick said at [76] that when the police arrived he told
them that it had been a false alarm as the person who called him was not Mr
Fraser. His evidence is that he told the police what had happened and that he
wanted to report it. If such a report exists the Royal Commission has not
provided it. It is however telling that once Mr Fitzpatrick discovered that the
call carne from Mr Greenfield he regarded it as a false alarm.
28.
In the exchanges that followed on that day, and since, there has been a contest
between Mr Greenfield and Mr Fitzpatrick about what words were used rather
than whether Mr Greenfield intended to kill Mr Fitzpatrick or Mr Fitzpatrick
feared for his life.
29.
As for Mr Greenfield, he admitted making an abusive phone call to Mr
Fitzpatrick. He denied at the time that the call included a death threat31 . On 17
April 2013 he strongly denied to Mr McDonald that he had made a death
threat 32 • He denied the death threat to Ms Mallia in May 2013 33 . He also
denied it in his testimony before the Royal Cornrnission34 . The differences in
the accounts given at different times of the actual words used reflect nothing
more than the vagaries ofMr Greenfield's memory. Mr Greenfield has always
maintained that he did not threaten Mr Fitzpatrick with his life.
30.
Mr Greenfield explains that he was aware that Mr Fitzpatrick had been talking
to Mr Westerway about arrears for Elite Scaffolding and that he had spoken to
Mr Westerway shortly before the call and been told that Mr Fitzpatrick had
said disparaging things about him. Counsel Assisting does not make reference
31
32
33
34
Darren Greenfield 3 10114 T 691.2; Brian Parker 311 0114 T.613.15-24, T615.13-16
Don McDonald Statement [31)
Rita Mallia statement 1518114 [49, 52] (check annexures RGM7, RGM9]
Darren Greenfield 3 10t1 4 T693.40
31
to this material. It is in Mr Greenfield's statement 35 and Mr Westerway's
testimon/ 6 .
31.
On 17 April 2013 Mr McDonald also spoke with Mr Fitzpatrick, Mr
Greenfield, Mr Kera, who was Mr Greenfield's supervisor, Mr Parker and Ms
Mallia and found that there was a lot of criticism of Mr Fitzpatrick for
interfering in the disputes that other officials were handling37 •
32.
Mr Fitzpatrick said both in his statement and oral testimony that he tried to call
Mr Greenfield a number of times in March to talk to him about the Elite
Scaffolding arrears 38 . The Royal Commission has Mr Fitzpatrick's phone
records and is aware of Mr Greenfield's number. Those records show that Mr
Fizpatrick telephoned Mr Greenfield once during the month of March 2013.
The phone call was on 15 March 2013 at 1.40:47pm and lasted 38 seconds. It
was made from Mr Fitzpatrick's mobile phone. There were no further calls
that month from either Mr Fitzpatrick's mobile or landline to Mr Greenfield.
33.
The matters raised by Counsel Assisting in paragraphs 88 to 99 of the
submission do not provide a basis for resolving the contest over what Mr
Greenfield said to Mr Fitzpatrick on 27 March 2013. They certainly do not
remove the doubt over whether Mr Greenfield actually threatened to kill Mr
Fitzpatrick.
34.
The analysis of the material gathered by the Royal Commission about the
phone call does not justify the findings urged at paragraphs 172 to 188 that Mr
Greenfield has committed criminal offences.
C
The Response to Mr Fitzpatrick's complaint about the phone call
35.
The rest of the analysis in Part 8.4 goes to urging a conclusion that Mr Parker,
Mr Greenfield and Ms Mallia's conduct amounted to professional misconduct.
No reference is made to the applicable professional standard. Ms Mallia is a
solicitor the submission cannot be a reference to her professional standard as a
35
Darren Greenfield statement 15 t8/ 14 [25]
Douglas Westerway 25/9114 T407.39 - 408.45
37
McDonald 24/9114 T398.32
38
Brian Fitzpatrick statement 1417/14 at [56]; Brian Fitzpatrick 15'7114 T 24.31
36
32
solicitor. If it that is intended then the allegation is a serious one and should be
rejected. Reference is made to clause 5l(b) of the CFMEU Construction and
General Division Rules which deal with removal from office for gross
misbehavior and gross neglect of duty. Reference is also made to the NSW
Branch Code of Conduct.
36.
At paragraphs 100 to 104 of the submission, Counsel Assisting criticises Mr
Parker and Ms Mallia for failing to initiate an investigation earlier. The
criticism is unwarranted. Ms Mallia was on leave on the day and acted as soon
as she was informed about it on her return. While there may be some
disagreement about what further Mr Parker should or could have done on 27
March 2013, it is clear that Mr Parker made efforts to resolve the issue on the
day. He certainly took action soon after that day. Counsel Assisting appears to
adopt Mr Quirk's October 2013 description of Mr Parker's actions on the day
as "jelly backed". This is partisan, offensive and false. It lacks perspective and
ignores the true context of the call. Once it is accepted that Mr Fitzpatrick
understood the call did not amount to a threat to his life (once he realized that
the caller was Mr Greenfield and not Mr Fraser) and Mr Greenfield, whatever
he said, never intended to do Mr Fitzpatrick any physical harm, context and
perspective are restored.
3 7.
The actions taken by Mr Parker and Ms Mallia involved having Mr McDonald
investigate the call and the circumstances that gave rise to it, seeking legal
advice as to what to do about the allegation and Ms Mallia conducting a
separate investigation into the specific incident. The allegation and the issues
arising from Mr McDonald's report were also discussed at the Committee of
Management level at two meetings, one of which was an extraordinary
meeting convened to deal with Mr McDonald's report.
38,
A criticism is made (at paragraph [ 103] of the submission) of Mr Parker and
Ms Mallia for not taking a written account from Mr Fitzpatrick and Mr
Greenfield of their versions of the phone call at an early stage. That criticism
applies equally to Mr Fitzpat1ick who says that he told police that he wanted to
report the call but apparently never did. Mr Fitzpatrick was not so concerned
that he made a contemporaneous written account of what was said.
n
39.
There are a number of factual errors in the submission of Counsel Assisting
including the following. At paragraph 106 of the submission Counsel Assisting
refers to a joint meeting of the Committee of Management and organisers on
28 March 2013. There was no such meeting. Reliance is placed on paragraph
78 of Mr Fitzpatrick's statement. The reference is incorrect. Mr Fitzpatrick
refers to a Committee of Management meeting 'sometime after' 27 March
2013 at paragraph 78 of his statement. He refers to the meeting because he
says two members of the Committee had suggested he be sacked for calling the
police. The comments are again referred to in his testimony on 15 July 2014
when he said they were made at the joint meeting of the Committee and
organisers mentioned in the Kesby letter 39 • The Kesby's letter refers to a
meeting on 1 September 2013. 1 September 2013 was a Sunday. Ms Mallia's
15 August 2014 statement clarifies at [III] that the meeting referred to by Mr
Kesby must have been the joint meeting held on 1 July 20I3. Ms Mallia's
notes from that meeting are attached to her statement.
40.
Ms Mallia clarifies at [56] and [57] ofher 15 August 20I4 statement that the
discussion about the police being called occurred at the Committee of
Management meeting on I2 April 2013. Mr Fitzpatrick was present at that
meeting.
41.
This is an example of Counsel Assisting preferring the evidence of Mr
Fitzpatrick over all others even when the evidence of others is cogent,
supported by contemporaneous records and directed to clarifying the dates of
events that Mr Fitzpatrick has incorrectly described.
42.
The sequence of events following the 27 March phone call are set out in Ms
Mallia's statement as follows:
a.
Ms Mallia returned from leave on 2 April 2013, which was the second
business day after 27 March, (29 March being Good Friday, 1 April being
Easter Monday) and was told by Mr Fitzpatrick about the phone call
([44]);
b.
39
Ms Mallia spoke to Mr Parker on the same day. Mr Parker had already
Brian Fitzpatrick 1517114 T 33.21-37
34
decided to engage Mr McDonald to report and the two agreed that legal
advice be sought about dealing with the phone call ([46]);
c.
Ms Mallia sought legal advice on how to deal with the call ([48]);
d.
Mr McDonald refers to a meeting with Ms Mallia and Mr Parker on 8
April where they expressed concerns about the alleged death threat
(McDonald statement [13]);
e.
The matter was discussed at the Committee of Management meeting on
12 April where the Committee endorsed the actions of Mr Parker in
approaching Mr McDonald to report on it and a number of concerns and
Ms Mallia conducting an investigation. It was also resolved that there be
an extraordinary meeting ofthe Committee to discuss the issues involved
([57]);
f.
On 12 April after the Committee meeting Mr Fitzpatrick spoke to Ms
Mallia and asked for her advice as to whether he should resign (RGM13);
g.
Mr McDonald conducted interviews "for as long as they needed" on 17
April over quite a 'few hours' with Mr Fitzpatrick (twice), Mr Kera, Ms
Raju, Mr Greenfield, Ms Mallia and Mr Parker (McDonald Statement
[26]ff and 24/911 4T391.41 to 392.1). Mr McDonald understood his role
to be to determine the truth of the allegations (2419/ 14 T 394.26 and
395.29);
h.
Ms Mallia started her investigation by obtaining statements of Mr
Thomas on 16 April and Ms Raju on 17 April ([ 48]);
1.
On I 0 May the extraordinary meeting of the Committee of Management
took place where the report of Mr McDonald was received and discussed
and Mr Parker reported on the progress of the investigation ([60] and
RGM 14).
J.
Mr Greenfield was interviewed by Ms Mallia on 16 May ([49]);
35
k.
Mr Thomas provided a further note on 28 May ([50]);
I.
After receiving legal advice Ms Mallia finalised her report on 31 May
2013 ([51]);
m.
Ms Mallia and Mr Parker presented Ms Mallia's report to Messrs
Fitzpatrick and Greenfield at separate meetings on 7 June 2013. Mr
Greenfield was also directed to adhere to the branch Code of Conduct.
As can be seen from the material in Ms Mallia's report, and contrary to Counsel
43.
Assisting's submission:
a.
Mr Fitzpatrick was not barred from the meeting on 12 April 2013 and the
question of Mr Fitzpatrick calling the police was not "an agenda item"
(contra Counsel Assisting's submission at paragraph 108);
b.
The Committee did not take the perspective on 12 April 2013 that the
wrongdoing to be investigated was Mr Fitzpatrick calling the police
(contra Counsel Assisting's submission at paragraph 109);
c.
Mr McDonald was engaged to conduct an investigation into the alleged
death threat40 (contra Counsel Assisting's submission at paragraph 111);
d.
Mr McDonald's interviews were not relatively short but as long as the
interviewees needed (contra Counsel Assisting's submission at paragraph
113);
e.
There was no need for Ms Mallia, Mr Parker or members of the
Committee of Management to complain about the general nature of Mr
McDonald's final report in May because a specific investigation was
occurring conducted by Ms Mallia (contra Counsel Assisting's
submission at paragraphs 117 and 121 ).
44.
Counsel Assisting's criticisms of Ms Mallia's report at paragraphs 126 to 132
are unfair and unwaiTanted. The rep011 considers the allegation, sets out the
40
Statement of McDonald at [15]
(18]
36
material gathered surrounding the incident, reaches conclusions and makes
recommendations. Counsel Assisting is dismissive of the report and in
particular the reasoning process of Ms Mallia. Those criticisms are partisan.
The report did not give Mr Fitzpatrick the result he desired and Counsel
Assisting has adopted Mr Fitzpatrick's stance. Counsel Assisting may disagree
with the outcome but the report speaks for itself. The point is not the outcome
or conclusion in the report but the process undertaken and its intention.
45.
The conflation of the queries about Mr Fitzpatrick's termination pay in mid
May 2013 and the timing ofthe interviews in the investigation at paragraph 126
of the submission fails to appreciate that there were separate discussions about
Mr Fitzpatrick's future at the union. Mr Fitzpatrick had discussed standing
down from the Committee of Management with Ms Mallia on 12 April201341 •
Mr McDonald also had discussions with Mr Fitzpatrick on 17 April 2013. Mr
McDonald, someone Mr Fitzpatrick said in his testimony he had enormous
respect for42 , described his view ofMr Fitzpatrick in April, in this wal3 :
No. I felt sony for Brian Fitzpatrick.
I felt that he had become bitter, subjective and
personal. simply because he didn't agree with the way in
which the leadership were doing things and I was forming
the view that he'd really- that he'd lost it, that he was
offside with staff, he was offside with organisers, that he
was offside with the management committee, and I really
felt sorry for him, and I didn't want him to leave the
union under bad circumstances. I wanted to help him canvas
his options.
46.
Mr Ferguson, who Mr Fitzpatrick also had a great amount of admiration and
respect for44 , also approached Mr Fitzpatrick and Mr Parker in mid-2013 about
reconciling their differences45 .
47.
Both Mr McDonald and Mr Ferguson attested to a long association with Mr
Fitzpatrick and respect for him. It cannot be suggested that they were acting to
41
(Not in transcript, check Rita Mallia statement 1518tl 4 [59] Annexure RGM13- Copy of notes of
meeting with Fitzpatrick 12 April2013]
42
Fitzpatrick 2419/14 T297.20
43
McDonald 241911 4 T399.46.
44
Fitzpatrick 24/9/14 T296.38
45
Ferguson statement 15/8 114 [IO]ff
37
cover up a plan by Ms Mallia and Mr Parker to terminate Mr Fitzpatrick's
employment. The suggestion by Counsel Assisting at paragraph 126 that such a
plan existed and that the repo11 of Ms Mallia into the allegations of the death
threat was "no more than going through the motions" is unjustified.
48.
Further, Counsel Assisting describes the conversation with Mr Ferguson at
paragraph 139 of the submission as occurring after the Cbus information was
used by Mr Fitzpatrick in late July 2013. Both Mr Ferguson and Mr Fitzpatrick
said the discussion was earlier46 •
49.
Counsel Assisting's reference to the 1 September meeting as part of a campaign
to vilify Mr Fitzpatrick to have him leave the CFMEU is also unjustifiable and
based upon inaccurate material. As discussed above the date of the meeting
referred to was 1 July 2013.
50.
Counsel Assisting's case theory that Mr Fitzpatrick was being forced out of the
union then moves to the disciplinary letter of3 September 2013. Whatever can
be said about the allegations raised in that letter, and the CFMEU refutes the
suggestion in paragraph 149 that the issues raised were contrived or that
somehow there is a standard of tolerance for bad behavior in union offices that
is different from any other workplace, those issues were not resolved. Mr
Fitzpatrick denied them but chose to resign before they were dealt with. He
requested a payment equal to 12 months' salary as part of a separation package
and left the CFMEU.
51.
Counsel Assisting's criticism of the media release in January 2014 and
reference to the limits in the instructions to Mr Slevin at paragraphs 168 to 170
are not relevant to the task of the Royal Commission. They are an attack on Mr
Parker's response to Mr Fitzpatrick's media appearance in January 2014. It is
difficult to see how they can take the accusations of unprofessional conduct any
further. A criticism may equally be made that the appearance in the media by
Mr Fitzpatrick disparaging the CFMEU was contrary to the deed he signed at
the time of his resignation47 .
46
Ferguson statement 15/8'1 4 [7]ff; Fitzpatrick statement 1417/14 [117]; Andrew Ferguson 2319114 T
275 .41-276.11
47
Fitzpatrick MFII 15/71 14 Tab 32 clause 7 at p233
38
52.
Counsel Assisting suggests that findings should follow that the treatment of Mr
Fitzpatrick after 27 March 2013 amounted to professional misconduct by Mr
Parker and Ms Mallia. The test of professional standards referred to is the test
in Rule 51 (b) of the CFMEU's rules. Counsel Assisting provides no analysis of
those rules. Rule 51 allows a charge to be brought against an officer. That
charge is to be heard by a domestic tribunal within the CFMEU. Any member
may bring those charges. Mr Fitzpatrick had this mechanism available to him at
all times but chose not to use it. In any event, it is no part of the Royal
Commission's terms of reference to make findings under the CFMEU's rules.
S3.
Mr Fitzpatrick however has instead chosen to make his allegations in the media
and in the Royal Commission.
His evidence is refuted by a number of
witnesses. He has given generalised accounts of events. He was not frank
about his own activities in a number of places especially associated with the Cbus leak incident, including, by way of example;
(a)
His evidence implicating Ms Glass in procuring the provision of the
information which is unsupported by any evidence from her.
(b)
His plan to use private information to contact employee members under
the guise that he worked for C-bus.
(c)
His failure to be frank with the Royal Commission about the number of
calls he made in furtherance of his C-bus plan.
Contrary to Mr
Fitzpatrick's' evidence a study of his phone records reveals that there
were two calls made by him on 30 July at 10:22:20 and 10.26:19.
However, there were a further 5 calls made by him to numbers on the
Zanatta spreadsheet on 2 August 2013 at 10.28:09, 10.30:25, 11.04: 16,
4.35:08 and 4.36:47.
(d)
His disregard of the Commission's request that he not disclose that he
had given evidence in private when he spoke to Mr Fodor48 • He did this
in his own interest. He evidently enjoyed the power he believed that he
had from his close relationship with a journalist with whom it appears he
was closely working and his close association with the Commission.
43
Statement of Nicholas Fodor at [23]
)9
PART 8.5
NSW CFMEU DEALINGS WITH ALEX COMPANIES
I.
The submissions in this part are made on behalf of the CFMEU and Mr
Greenfield.
2.
The CFMEU agrees with the submission that as the matter going to the
dealings with the Alex companies is the subject of ongoing investigation it is
undesirable to say very much about it at this time. Certainly, the material
gathered in the investigation thus far does not indicate impropriety on the part
of the CFMEU or its officers.
3.
As the matter involves serious allegations by Mr Fitzpatrick that Mr Parker
and Mr Greenfield have given companies associated with Mr George Alex
preferential treatment in return for inducements or rewards from Mr Alex, the
CFMEU agrees with Counsel Assisting's submission that it is desirable to
make a statement in the interim report recording observations for the benefit of
Mr Parker and Mr Greenfield.
4.
As to the form of that statement the CFMEU does not object to the comment
contained in paragraphs 6.(a) to 6.(e) of the submission. The CFMEU also
submits that the report should make it clear that it is not the role of a Royal
Commission to make ultimate findings in relation to criminality.
5.
The CFMEU submits that the comment in paragraph 6.(f) should not be
included in the statement. Mr Parker's disparaging comments about Mr Barrios
were made in private and confidential phone calls. The first phone call was
with his daughter who had rung him on father's day. In response to questions
from his daughter Mr Parker expressed private views about Mr Barrios. The
second conversation was with Mr Kera in which Mr Parker also expressed
frank views about Mr Barrios.
6..
Mr Parker's views are indefensible and the CFMEU does not condone or adopt
them in any way. Those views however were not expressed to Mr Barrios and
40
were not acted upon by Mr Parker. Had Mr Parker's phone not been
intercepted, recorded and played in the public hearing in the Royal
Commission they would have remained private.
Mr Parker described the conversations as a means of venting frustrations over
7.
events involving Mr Barrios. He explained the pressure he has been under. He
accepted that the comments were inappropriate and said in the heat of the
moment.49
Contrary to Counsel Assisting's submission at paragraph 56 Mr Parker did not
8.
converse in an abusive and derogatory manner towards Mr Barrios. Mr
Parker's statements might be said to impugn the integrity of Mr Barrios
contrary to the Code of Conduct. The Code of Conduct includes a procedure
for dealing with such matters. It is an internal matter for the CFMEU to deal
with those circumstances.
It should be noted that Mr Parker and Mr Barrios have known each other for
9.
many years and that they have locked horns on many occasions 50 • Mr Parker
acknowledged that Mr Barrios was the best delegates the union has51 .
10.
Counsel Assisting submits at paragraph 60 that because of the views expressed
in these two private conversations and in unspecified conduct described
elsewhere in his submissions, Mr Parker is not a fit and proper person to hold
office as the Secretary of the NSW Branch. The submission is imprecise. It is
made without reference to the context in which such a judgment should be
made or by what standard. It refers to unparticularised conduct mentioned
elsewhere in the submissions.
11.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR
321, Mason CJ explained that, at 380:
'The question whether a person is fit and proper is one of value judgment.
In that process the seriousness or otherwise ofpmticular conduct is a
matter for evaluation by the decision maker. So too is the weight, if any.
to be given to matters favouring the person whose fitness and propriety
49
50
51
Brian Parker 3110/14 T 585.3, 589.39
Brian Parker 3/10/14 T 581.36, T 585.20, 589.30,
Brian Parker 3/10/14 T 589.14
41
are under consideration.'
] I.
Toohey and Gaudron JJ said at 380:
"The expression "fit and proper person", standing alone, caiTies no precise
meaning. It takes its meaning from its context, fi·om the activities in
which the person is or will be engaged and the ends to be served by those
activities. The concept of "fit and proper" cannot be entirely divorced
from the conduct of the person who is or will be engaging in those
activities. However, depending on the nature of the activities, the question
may be whether improper conduct has occun·ed, whether it is likely to
occur, whether it can be assumed that it will not occur, or whether the
general community will have confidence that it will not occur. The list is
not exhaustive but it does indicate that, in ce11ain contexts, character
(because it provides indication of likely future conduct) or reputation
(because it provides indication of public perception as to likely future
conduct) may be sufficient to ground a finding that a person is not fit and
proper to undertake the activities in question."
12.
In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28;
(1955) 93 CLR 127 the High Court said (at 156-7):
"The expression 'fit and proper' is of course familiar enough as traditional
words when used with reference to offices and perhaps vocation. But their
very purpose is to give the widest scope for judgment and indeed for
rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve
three things, honesty, knowledge and ability ... When the question was
whether a man was a fit and proper person to hold a licence for the sale of
liquor it was considered that it ought not to be confined to an inquiry into
his character and that it would be unwise to attempt any definition of the
matters which may legitimately be inquired into; each case must depend
upon its own circumstances. 11
13.
Counsel Assisting's rhetorical flourish about Mr Parker's fitness to hold office
fails to even at1empt to address these principles.
42
PART 8.6
DOCUMENT DESTRUCTION
J.
The submissions in this part are made on behalf of the CFMEU and the
following persons:
2.
•
Rita Mallia
•
Kylie Wray
•
Kerryn Me Whinney
Counsel Assisting's submissions deal with two case studies in this part. The
first is the deletion of emails in the NSW Branch of the Construction and
General Division of the CFMEU in late June 2014. The second case study
relates to the allegation that the Branch documents were taken from wage
claim files by David Holmes in February 2014.
3.
As to the first case study, since the Royal Commission raised this matter the
CFMEU has engaged a consultant to retrieve all of the deleted emails.
4.
An affidavit of Jason Solomon dated 14 November 2014 is provided with these
submissions and marked "A".
Mr Solomon is a Senior Consultant for
Mandiant Security Consulting Services. He has expertise in information
technology. He has been engaged by the CFMEU to retrieve deleted emails.
He deposes that he has been working on recovering deleted emails. The
process is not complete but Mr Solomon believes that he can recover most of
the deleted emails. It is submitted that the affidavit should be received into
evidence.
S.
The CFMEU submits that no finding should be made in relation to the conduct
of Ms Wray, Ms Mallia and Ms Charlson for the purpose of section 6K of the
Royal Commission Act 1902 (Cth). The Royal Commission should wait until
Mr Solomon's efforts are complete. It may be that no documents have been
destroyed.
6.
As to the second case study, it is not suggested that any documents were
43
destroyed in February 2014. In any event, it is submitted that Counsel
Assisting's submission on this case study is not within the terms of reference.
7.
At subparagraphs 3(c) to (g) Counsel Assisting summanses appropriate
findings in this case study as (adopting the lettering in the submission):
(c)
in February 2014 Ms Charlson gave Mr Holmes an instruction to remove
documents from certain wage claim files;
(d)
Mr Holmes removed 100-150 documents from those wage claim files;
(e)
no one other than Mr Holmes admits that the instruction was given and
that the documents were removed or what happened to them;
(f)
it is not possible to know what has become of the documents or whether
any of them were incriminating; and
(g)
it is not possible to be confident that all of the documents held by the
Branch in mid-February 2014 relating to the wage files have been
produced to the Royal Commission.
8.
Paragraphs 69 to 183 deal with the witness statements and testimony of Mr
Holmes, Ms Mallia, Ms McWhinney and Ms Charlson. That material goes to
the instructions given to, and the steps taken by Mr Holmes "on a day in mid
February 2014" 52 Subsequent events within the branch in March and April
2014 are also examined in an effort to establish that Mr Holmes' version of
those instructions is correct. Those events go to whether Mr Holmes'
document of 11 March 2014 was accurate and whether at a meeting in early
April 2014 Mr Holmes accepted that his account of that instruction was wrong.
9.
Counsel Assisting submits that Mr Holmes' account of all of these events
should be believed over the accounts given by the other three witnesses. The
submission traverses the motives of each witness and whether Mr Holmes was
bullied at work and whether his complaint of bullying was fairly dealt with.
These issues are relied upon to urge the Royal Commission to conclude that
52
David Holmes statement [13)
44
the testimony of Ms Mallia, Ms McWhinney and Ms Charlson should not be
believed because "Mr Holmes presented as a more credible witness, and there
were fewer difficulties with his evidence and credit"53 • This is not a strong
submission. It should not lead to adverse findings against the other three
witnesses.
10.
Indeed, Counsel Assisting describes Ms Charlson's evidence and performance
in the witness box as unsatisfactory. It is said that she did not present as a
particularly credible witness. Further Ms Charlson's evidence is said to have
appeared contrived and that she continually sought to change the "shade" of
her evidence54 •
11.
Counsel Assisting asks that the Royal Commission accept that Ms MeWhinney
embellished her evidence55 , gave accounts that were not credible56, "verballed"
Mr Holmes 57 , gave unimpressive evidence58 , gave descriptions of events which
were "quite bizarre" 59 and lacked confidence in her ability to stick to her
statement60 .
12.
The key event is the removal of documents from the wages files in mid
February 2014. The Royal Commission was not constituted by letters patent
until 13 March 2014. There is no suggestion, nor can there be a suggestion of a
contravention ofs6K of the Royal Commissions Act 1902 (Cth).
13.
When Mr Holmes was called to give his testimony the following exchange
took place61 :
MR AGIUS: Could I raise one other matter?
THE COMMISSIONER: Yes.
MR AGIUS: There is material raised in this statement
which goes to what I might call industrial or employment
issues. Rather than take up time debating the
jurisdictional aspects of that, we have put on statements
53
Counsel Assisting's submission at paragraph 92.
Counsel Assisting's submissions at 168
55
Paragraph 151
56
Paragraph 152
57
Paragraph 155
58
Paragraph 175
59
Paragraph 173
60
Paragraph 181
61
2/ 10' 14 T485.7-45
54
45
from three persons, which necessarily respond to the
industrial issues that are raised. They also deal with
what we perceive to be the issue upon which this Commission
may be asked to rule concerning what it was that this
witness was asked to do and what he did do in relation to
the copying of certain files.
We would propose to not, in effect, litigate the
industrial employment issues before you, Mr Commissioner,
becauseTHE COMMISSIONER: Your short point is that they are or
may be outside the Terms of Reference, and it wouldn't be
right to make findings about them if they are; on the other
hand, it may be premature to form a hard and fast view
about that now, and that is why you're taking the course
you have just outlined.
MR AGIUS: Yes.
THE COMMISSIONER: I understand your reasoning.
MR AGIUS: We propose to take a short course in relation
to the cross-examination, or at least a much shorter
course, although we have put on the evidence, lest it be
said we haven't outlined our position.
THE COMMISSIONER: I understand your position, which you
have made plain.
14.
The CFMEU's primary submission is that the Royal Conunission is now in a
position to consider that material and should conclude that the case study is
outside of the terms of reference. The Royal Commission need reach no
conclusions and should make no findings.
15.
A finding is suggested in paragraph 184 of the submission that Ms Charlson
"more likely than not" instructed Mr Holmes to remove documents from the
wages files. This is a cautious submission and understandably so given the
state of the material and the fact that it is not relevant to any matter caught by
the terms of reference. The finding suggested in paragraph 185 that Ms
Charlson was attempting to achieve the sanitisation of the Branch's records so
as to reduce the prospects of the CFMEU's internal inquiry making adverse
findings about the Branch also has nothing to do with the terms of reference.
The observation in paragraph 186 that Mr Holmes is the only person to admit
that 100 to 150 documents were removed from the wage claim files is not a
46
finding that advances any relevant investigation by the Royal Commission.
The observation at paragraph 187 that the Royal Commission cannot know
whether the 100 to 150 documents removed, fell within the terms of reference
acknowledges that the findings urged are not within the terms of reference.
16.
At paragraph 188 Counsel Assisting makes reference to whether the Royal
Commission can have confidence that the Branch still holds all of the wage
claim records held in mid 2014 that bear on the nature and extent of the
relationship between the CFMEU and the Alex companies. The Royal
Commission's investigation into the CFMEU's relationship with the Alex
companies is ongoing. The reference to that case study demonstrates that the
question of what occurred in mid February 2014 is at best a tangential issue
that might be associated with the Alex companies case study. In other words,
Counsel Assisting acknowledges that this case study is at best an exercise in
speculation about the extent of the material available in the investigation of
another case study.
17.
The Royal Commission should be reluctant to make the type of findings
against Ms Mallia, Ms Charlson and Ms McWhinney sought by Counsel
Assisting for a purpose that is not relevant to the terms of reference.
18.
The CFMEU submits that this is not an issue that the Royal Commission
should make any conclusions about now, or at alL Alternatively, if any
conclusion is needed on these issues, and that prospect seems remote, it should
be made once the investigation into the Alex companies is complete.
19.
The submissions that follow only become necessary if the Royal Commission
determines that the issue of whether Mr Holmes removed documents from the
wage claim files must be determined now.
20.
The first issue is whether Mr Holmes was directed to remove documents from
files by Ms Charlson. Ms Charlson denies that she gave any direction other
than for Mr Holmes to assist Ms MeWhinney.
21.
Mr Holmes' recollection is that he was told by Ms Charlson on a day in mid-
February 2014 if he could perf01m a task the following day which was to
47
remove anything incriminating or unpalatable from wage claim files and
photocopy those files once the documents were removed
62
.
Mr Holmes'
statement to the Royal Commission was the first written record of the claim
that Ms Charlson gave the instruction. The last encounter that Mr Holmes had
with Ms Charlson before making that statement was the meeting described in
paragraph 30 of Ms Charlson's statement.
It was a meeting at which Ms
Charlson raised a concern about Mr Holmes' work with him. Mr Holmes
refused to accept the criticism of him, went home sick and has been absent
fromteh workplace since. Mr Holmes had a motive to make the accusations he
does about Ms Charlson.
22.
Ms Charlson denies that she gave the instruction. Ms Charlson's evidence is
that she merely asked Mr Holmes to assist Ms MeWhinney with wage claims
files. Those files and the task of copying those files fell under Ms
McWhinney's responsibility63 . Ms McWhinney's account was that she asked
Ms Charlson whether Mr Holmes could be released to assist her and that Ms
Charlson approached Mr Holmes in her presence and merely asked him to
assist64 .
23.
It is plain that Ms McWhinney's account is consistent with that of Ms
Charlson. It is also consistent with the evidence as to the respective roles of
these two senior employees. It is inconsistent with Mr Holmes' account. Mr
Holmes' account cannot be accepted as to who tasked him.
24.
Ms McWhinney states that the direction she gave Mr Holmes was to go to the
files and to photocopy certain categories of documents. The instruction did
require Mr Holmes to extract some documents 65
.
Ms Charlson and Ms
McWhinney's evidence provides a better account of the instruction given to
Mr Holmes than Mr Holmes' statement. Ms McWhinney and Ms Charlson
both provide context and explain fully the steps taken to provide Mr Holmes
instructions about the task required.
25.
The second issue is whether Mr Holmes' record of the direction in the 11
62
David Holmes statement at [13]
Leah Charlson's statement at [16]- [17]
64
Kerryn McWhinney statement at [12]
65
Kerryn McWhinney statement at [14]- [15]
63
48
March 2014 document was accurate. Again the full context to the production
of that document is not set out in Mr Holmes' statement. A fuller account is set
out in the statements of Ms Charlson and Ms Mallia. A full copy of the 11
March document is attached toMs Mallia's statement of30 September 2014 at
RGM42. It is a long document in which Mr Holmes addresses concerns raised
in an email from Ms Hayward toMs Charlson. It was produced for the purpose
of Mr Holmes responding to complaints about his work. It also addresses
concerns raised at a meeting of the Branch's legal department held on 7 March
2014.
26.
Where the document refers to the exercise of copying files in mid-February it
refers to a requirement to drop all other tasks for the entire day to search, copy
and remove any incriminating or unpalatable material from wage claims files.
It does not identify who required Mr Holmes to do that. Mr Holmes relied on
his recollection in September 2014 as to who gave him the direction66 • It does
not record that the request was made on one day about work on the following
day67 • Mr Holmes' testimony was that his statement reflected his impression of
what was said to him rather than the actual words and that he could not
remember what was said68 .
27.
The third issue is whether Mr Holmes said in April 2014 that the direction he
was given came from Ms Charlson. Mr Holmes made reference to this meeting
in his statement stating simply that he said at that meeting that the instruction
referred to in the 11 March 2014 document came from Ms Charlson. He gave
no other account of the discussions at that meeting. Ms Charlson's statement
records a meeting on 2 April 2014 which addressed Mr Holmes' assertion that
he had been asked to remove documents from the files. The meeting proceeded
on the basis that Ms McWhinney gave the instruction. Ms Charlson's
statement records that at this meeting Mr Holmes described the instructions
received from Ms McWhinney69 • Ms McWhinney gives an account of the
meeting in the context of what instructions she had given to Mr Holmes and
denies that Mr Holmes said that the instruction came from Ms Charlson 70 •
66
David Holmes T497.45
David Homes T499.4
68
David Holmes 499.37 to 500.6
69
Leah Charlson statement at [20]
7
°Kerryn McWhinney statement at [23]
67
49
28.
Ms McWhinney provided an email dated 2 April 2014 that was sent to Ms
Charlson71 • That email confirmed the accounts given by Ms Charlson and Ms
Me Whinney in their statements about what was said in the meeting. It
confirms that the meeting proceeded on the basis that Mr Holmes had received
instruction from Ms McWhinney in February 2014. Counsel Assisting's
suggestion at paragraph 159 that an inference should be drawn that Ms
McWhinney was creating a paper trail is unjustified. There could be no reason
for Ms MeWhinney to take responsibility for giving the instructions in order to
cover up for Ms Charlson at that time. There was no need for a proper trail.
The contemporaneous email is the best evidence of what occurred re the
instruction and at the meeting on 2 April.
29.
Mr Holmes' evidence that he received an instruction in February 2014 from
Ms Charlson to remove incriminating and unpalatable documents from wage
files should not be accepted. The evidence is unreliable in the face of the
evidence of Ms MeWhinney and Ms Charlson.
30.
If Mr Holmes is believed a further issue arises as to whether he removed 100
to 150 incriminating and/or unpalatable documents from the wage claim files.
Mr Holmes' testimony was that the word "incriminating" stuck in his mind
and he believed that to mean something that would be an offence that could
result in a charge72 • He said that he removed 100 to 150 documents from the
wage claim files but could not recall what or even whether he had identified
any offences that led him to do so 73 • He had no memory of any specific
document that was removed 74 .
31.
Mr Holmes gave evidence that in context he understood "unpalatable" to mean
documents that would put the CFMEU in a bad light75 . Again Mr Holmes
could not recall a single document that was removed from the files that fit that
description76. The only assistance he could provide was that he understood that
he was to remove documents that contained swea1ing77 .
71
Kerryn McWhinney Annexure KMW2
David Holmes 50 1.11
73
David Holmes 50 1.41
74
David Holmes 502.4
75
David Holmes 502.13
76
David Holmes 502.37
77
David Holmes 510.9
72
50
32.
Ms McWhinney described the wage claim files at paragraph 15 of her
statement as files that contained routine paperwork of administration staff such
as wage claim forms, spreadsheets of monies owed, receipts for monies
recovered, confirmation of EFT payments and the like. It is difficult to see how
Mr Holmes would find amongst such files 100 to 150 documents that fit these
descriptions.
33.
Mr Holmes could not recall whether the documents he said he removed were
authored by union officers or others78 • He accepted that his statement for the
Royal Commission had been drafted in a way in which it might be inferred that
the documents that he said were removed were incriminating of union
officers79 • He also said that the statement was prepared by Counsel Assisting's
junior Mr Elliot and that he had told Mr Elliot that he was not sure who
authored the documents he said he removed80 .
34.
Mr Holmes' evidence is simply unreliable. His evidence about who gave him
the instruction cannot be believed over the other material available to the
Royal Commission. His evidence about the substance of the instruction is
unreliable. His evidence that he spent a day removing documents and that he
removed 100 to 150 documents but cannot recall one document is not credible.
If the Royal Commission determines that it is necessary to make findings
about this material then those findings should be that Mr Holmes' account is so
unreliable that it should not be accepted.
35.
The evidence is such that it is not possible for the Royal Commission to make
the adverse findings pressed by Counsel Assisting without cherry picking the
evidence of Mr Holmes in circumstances where Mr Holmes' evidence about
the nature of the documents he said he removed is vague. The Commission
cannot be satisfied to the Briginshaw standard. The submissions of Counsel
Assisting amount to serious allegations. It is inherently unlikely that people in
the position and with the standing of Ms McWhinney and Ms Charlson, a
senior lawyer, would have taken Mr Holmes into their confidence and asked
him to remove documents from files in circumstances where he would have to
78
David Holmes 504.6
David Holmes 504.38 - 505.14
80
David Holmes 505.33-41
79
51
exercise his judgment about the nature and import of the documents and where
that activity was designed to deceive the person who had sought the files and
documents. The gravity of the consequences of the findings that Counsel
Assisting seeks when considered with the other circumstances outlined above
must lead to a conclusion that the Commission cannot be satisfied to the
requisite standard.
52
PART 8.7
UNIVERSAL CRANES
OVERVIEW
14.
The submissions in this pm1 are made on behalf of the CFMEU and the
following persons:
•
•
•
•
•
•
•
•
•
1S~
Michael Ravbar
Peter Close
Andrew Sutherland
Gregg Churchman
Mark Robinson
Ben Loakes
Douglas Spinks
Mark O'Brien
Scott Vink
Counsel Assisting unjustifiably urges findings of contraventions of the law in
this part. Counsel Assisting seeks findings of 7 counts of criminal conduct
under the Criminal Code Act 1899 (Qld) as well as various contraventions of
the Fair Work Act 2009 (Cth) and the Competition and Consumer Act 2010
(Cth). The conclusions should not be adopted by the Royal Conunission as
Counsel Assisting has failed to present a balanced account of the material
gathered in the investigation and that material, in any event, does not support
them.
16.
The submission presents the many claims ofMr Smith in an uncritical way and
unfairly suggests that the evidence of Mr Ravbar and the other CFMEU
witnesses should be rejected on the basis of credit. Counsel has not been
impartial in presenting the material and has advocated in the interests of Mr
Smith.
17.
Fu11her, the procedure followed in the Royal Conunission's investigation of
53
this case study was unfair and the conclusions sought, which include findings
of serious criminal conduct, cannot be proved to the Briginshaw standard81 •
PROCEDURAL MATTERS
18.
The procedure followed by the Royal Commission m investigating the
Universal Cranes matter was:
(a)
On Friday 25 July 2014 the Commission wrote to the solicitors for the
CFMEU; advising that a hearing would be conducted in Brisbane in the
week of 4 August 2014, listing current and former members or officers
of the CFMEU who may be affected by the evidence to be given, and,
enclosing directions and, amongst other things, a draft statement of the
evidence anticipated to be given by Mr Smith. The 58 annexures to the
draft were not provided. The material contained largely generalised
allegations by Mr Smith of a campaign against the Universal Cranes
Companies. Most of the material in support of those allegations was
hearsay and secondhand hearsay.
(b)
The direction accompanying the statement stated that Practice Direction
2 would apply and that the time for compliance with paragraph 5 of PD2
would be midday on Thursday 31 July 2014.
(c)
The CFMEU's solicitors sent an email on Saturday 26 July 2014 seeking
the annexures to Mr Smith's draft statement.
(d)
(e)
The annexures were provided at 7.21 pm on Sunday 27 July 2014.
On 29 July 2014 the CFMEU's solicitors received a letter from the
Commission providing a signed statement of Smith replacing the
previous outline of evidence.
(f)
On 31 July 2014 the CFMEU made an application for relief from
compliance with the requirements of paragraph 5 of PD2. The CFMEU
indicated that a copy of a statement of Mr Ravbar would be provided the
81
(1938) 60 CLR 336@ 361-363 per Dixon J
54
following morning.
(g)
The statement of Mr Ravbar was provided on 1 August 2014. Mr Ravbar
responded to the generalised allegations with general denials and
supported his responses with hearsay.
(h)
On 1 August 2014 the Commission issued a decision concerning the
application.
It was that the CFMEU would be permitted to cross
examine Mr Smith in the week beginning 4 August 2014 provided that a
list of the topics for cross-examination were provided to the royal
Commission on the morning of 4 August 2014.
(i)
On 4 August 2014 Counsel Assisting opened in the public hearing in
Brisbane and stated that there were allegations of breaches of the
Criminal Code Act 1899 (Qld), the Fair Work Act 2009 (Cth), The Fair
Work (Registered Organisations Act 2009 (Cth) and the Consumer and
Credit Act 2010 (Cth).
(j)
Mr Smith was called in the public hearing on 4 August 2014 and was
examined by Senior Counsel for the CFMEU.
(k)
Mr Ravbar was called and examined by Counsel Assisting in the public
hearing on 6 and 7 August 2014.
(1)
On or about 14 August 2014 the CFMEU provided to the Royal
Commission the statements of Michael Robinson, Gregg Churchman,
Andrew Sutherland and Peter Close. Those statements gave direct
evidence in response to the claims made by Mr Smith.
(m)
The Royal Commission provided copies of statements of Robert Swift
dated 21 August 2014 and Brent Downton and Nicolas Navarrete dated
22 August 2014. These statements provided direct evidence in response
to the CFMEU evidence. Directions were made under PD 1 that the
CFMEU file further statements in response by 1 September 2014.
(n)
On 1 September 2014 the CFMEU filed further statements of Scott
55
Vink, Mark O ' Brien and Douglas Spinks responding to the statements
dated 21 and 22 August 2014.
(o)
On 2 September 2014 the Commissioner issued PDl /d whereby those
who wanted to respond to the CFMEU statements had to do so m
accordance with paragraph 46 ofPDl by 12 September 2014.
(p)
The Royal Commission' s witnesses were called and gave testimony on 3
September 2014.
(q)
Further witnesses for the CFMEU were called and gave testimony on 4
September 2014 with the exception of Loakes who was called on 22
September 2014.
19.
The initial response to Mr Smith's statement was required at very short notice.
Mr Smith's statement comprised 185 paragraphs and 58 annexures amounting
to 470 pages. Mr Ravbar's response was made without knowledge of the
serious allegations including criminal conduct that Counsel Assisting would
make by reference to Mr Smith's assertions. The first indication of that was
when Counsel Assisting opened on 4 August 2014. Mr Ravbar was thereby
given no effective notice of the issues raised against him.
20.
The opening made general allegations of criminal conduct and contraventions
of other laws. It referred to Mr Ravbar, Mr Close, Mr Ingham, Mr Moses, Mr
Robinson, Mr Sullivan and Mr Treadaway in the context of possible breaches
of sections 343 of the Fair Work Act 2009. Mr Ravbar, Mr Close and Mr
Ingham were referred to in the context of possible breaches of s340 of the Fair
Work Act 2009. Reference was also made to s415 of the Criminal Code (Qld)
and officers and employees of the CFMEU "engaging in a deliberate and
protracted criminal campaign of extortion". Mr Close, Mr Ravbar and Mr
Sutherland were mentioned in that context. A reference was then made by
Counsel Assisting to section 359 of the Queensland Criminal Code and a
general mention was made of the conduct of officers and employees of the
CFMEU. Reference was also made to s45D of the Competition and Consumer
Act 2010 (Cth) and whether "various officers and employees of the CFMEU
already identified contravened that section". Reference to s45E of the same
56
Act was then made and mention was made of customers of Universal Cranes
entering into an arrangement with the CFMEU. Counsel Assisting concluded
by referring to sections 286 and 287 of the Fair Work (Registered
Organisations) Act. It was suggested that the conduct of Mr Ravbar, Mr Close,
Mr Ingham, Mr Moses, Mr Robinson, Mr Sutherland and Mr Treadaway "may
well constitute serious contraventions of these provisions"82 .
21.
Mr Smith was examined on his statement on 4 August 2014. As Mr Smith was
not represented in the hearing, Mr Ravbar was examined on his statement by
Counsel Assisting over 6 and 7 August 2014. The fact that Counsel Assisting
tested Mr Ravbar's statement in response to Mr Smith and never tested Mr
Smith against Mr Ravbar's statement may explain the adversarial tone of
Counsel Assisting's submission.
22.
In the submission Counsel Assisting asks the Royal Commission to conclude
that:
(a)
Mr Ravbar and Mr Close each committed various offences under s415 of
the Criminal Code Act 1899 (Qld);
(b)
Mr Ravbar and Mr Close each committed offences under s359 of the
Criminal Code Act 1899 (Qld);
(c)
Mr Ravbar, Mr Close, Mr Robinson, Mr Sutherland, Mr Treadaway, Mr
Loakes, Mr Cradden, and Mr Toyer were involved in contraventions of
s343 of the Fair Work Act 2009 (Cth);
(d)
Mr Treadaway, Mr Cradden, Mr Toyer, Mr Sutherland, Mr Ravbar and
Mr Close were involved in contraventions of s340 of the Fair Work Act
2009 (Cth);
(e)
The CFMEU failed to meet the standard in s228 of the Fair Work Act
2009 (Cth);
(f)
82
Universal Cranes' customers contravened s45E of the Competition and
Opening 4 August 2014 T9.26 to Tl3 .20
57
Consumer Act 2010 (Cth);
(g)
The CFMEU committed an offence by being a party to, or knowingly
concerned in, the Universal Cranes' customers' contravention of s45E of
the Competition and Consumer Act 2010 (Cth); and
(h)
Mr Ravbar, Mr Close, Mr Treadaway, Mr Sutherland, Mr Loakes, Mr
Cradden, Mr Toyer and the CFMEU have contravened s45D of the
Competition and Consumer Act 2010 (Cth).
23.
The Commission's letter to the CFMEU of 25 July 2014 did not mention that
the evidence to be adduced would be adverse to Mr Loakes, Mr Cradden or Mr
Toyer. Counsel Assisting' s opening did not mention them either. In the
submission Counsel Assisting asks that findings be made that those persons
acted contrary to law. Only Mr Loakes was summoned to give evidence. He
provided a witness statement and was summoned and examined on his
statement on 22 September 2014. He was not forewarned that submissions
would be made that his actions were contrary to the law. These persons were
entitled to be heard in opposition to any potential adverse finding. They were
not and no such findings should be made83.
24.
As to the others Counsel Assisting asserts contravened the law: Mr Treadaway
was not summoned to attend. Mr Ravbar was called and answered questions at
the public hearings on 6 and 7 August 2014. Mr Close was summoned to
attend the public hearing on 1 September and 22 September 2014. He was
called and answered questions on 4 September 2014 and 23 September 2014.
Mr Robinson was summoned to attend a public hearing on 1 September 2014.
He was called and answered questions at the public hearing on 4 September
2014. Mr Sutherland was summoned to attend a public hearing on 1 September
2014. He was called and answered questions at the public hearing on 4
September 2014.
25.
The analysis of the material in Counsel Assisting's submission heavily favours
Mr Smith's account of events. Mr Smith's evidence is adopted without demur.
83
Annetts v. McCann(l990) 170 CLR 596
58