Royal Commission into Trade Union Governance and ... · Web view.27/07/2015 CFMEU ACT 1168 C T...

ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION

Level 1, 12 Moore Street, Canberra City, ACT

On Monday, 27 July 2015 at 10.00am (Day 11)

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

Counsel Assisting: Mr J Stoljar SC Mr Richard Scruby

Instructed by: Minter Ellison, Solicitors

.27/07/2015 CFMEU ACT 1125 Transcript produced by DTI

1 THE COMMISSIONER: Yes, Mr Stoljar? 2 3 MR STOLJAR: Commissioner, we will resume the examination 4 of Mr Nikolic - who was stood over from Friday afternoon - 5 shortly. In the interim, Mr He is present with his 6 translator and it would be convenient, if possible, to deal 7 with Mr He's examination while the translator is able to be 8 present. 9 10 THE COMMISSIONER: Yes, very well. 11 12 MR K PATTENDEN: If it please the Commission, my name is 13 Pattenden. I seek leave to appear again on behalf of 14 Mr He. 15 16 THE COMMISSIONER: Yes, you have leave to do that. It 17 would be Mr Agius who wishes to cross-examine? 18 19 MR STOLJAR: Yes. I am told that Mr Agius is just 20 momentarily outside the courtroom. 21 22 THE COMMISSIONER: He knows that it's Mr He who will be 23 called? 24 25 MR STOLJAR: Yes, that was communicated to his solicitors 26 by my instructing solicitors this morning. He has just 27 arrived. In the interim, perhaps Mr He could be sworn 28 again, and the translator. 29 30 (All answers given through the 31 interpreter unless otherwise indicated) 32 33 <XIAOXING WANG, affirmed as interpreter: [10am] 34 35 <JIAN YE HE, affirmed through interpreter: [10am] 36 37 THE COMMISSIONER: Yes, Mr Agius. 38 39 MR AGIUS: Apologies for that delay, Mr Commissioner. 40 41 THE COMMISSIONER: That's all right, I quite understand. 42 43 <EXAMINATION BY MR AGIUS: 44 45 MR AGIUS: Q. Mr He, I need to ask you some questions 46 about your knowledge of English. I mean you no disrespect 47 at all. When you were last here you gave evidence about a

.27/07/2015 CFMEU ACT 1126 J Y HE (Mr Agius) Transcript produced by DTI

1 meeting that you had with two officials of the CFMEU. 2 I want to ask you about that meeting. 3 A. Yes. 4 5 Q. You said that one of them was named Johnny? 6 A. That's correct, the name is Johnny. 7 8 Q. Was there another one there named Zach? 9 A. Yes, yes, yes. 10 11 Q. Were there just the three of you in that conversation? 12 A. Yes. 13 14 Q. Did you have difficulty, from time to time, in 15 understanding what Johnny and Zach were saying to you? 16 A. I think, yes, probably a little bit difficulty. 17 18 Q. And sometimes things had to be repeated? 19 A. Yes. 20 21 Q. So they would repeat what they were saying and you 22 would repeat what you were saying? 23 A. Yes. 24 25 Q. English is not your native language? 26 A. That's correct. 27 28 Q. For how long have you been speaking English? 29 A. I think a few years. 30 31 Q. A few years. Three years? 32 A. About four or five years. 33 34 Q. Do you need to use English very much during your daily 35 work? 36 A. Yes. 37 38 Q. So you speak to your workers in English? 39 A. No, in Chinese. 40 41 Q. I want to take you back to this conversation about 42 membership. You told us last time, on 14 July, that you 43 paid for six people? 44 A. That's correct. 45 46 Q. Were those six people your relatives? 47 A. One of them is my wife and she's also working with me.


1 2 Q. Were any of the others your children? 3 A. No. Oh, sorry, maybe one of them is my child. 4 I can't remember. 5 6 Q. Surely you told your wife and your child that you had 7 paid their Union fees? 8 A. Yes. 9 10 Q. You told the other workers as well, did you? 11 A. That's right. 12 13 Q. Did you ask them to repay their Union fees to you? 14 A. Pay it to me? Not yet. 15 16 Q. But you intend to do that? 17 A. The workers are refusing to pay. 18 19 Q. So you've asked them? 20 A. I asked them. 21 22 Q. When you say they are refusing to pay, these are the 23 same workers who signed the applications for membership? 24 A. That's right. 25 26 Q. Do you know that a group of your workers went to the 27 CFMEU training school on the day after you gave evidence, 28 15 July this year? 29 A. I know this. 30 31 Q. You organised that with Johnny, didn't you? 32 A. That's correct. 33 34 Q. And you wanted them to get their asbestos tickets? 35 A. That's correct. 36 37 Q. Because they need that to be able to work on some 38 sites? 39 A. That's right. 40 41 Q. They all had their photograph taken with Johnny Lomax? 42 A. Right. 43 44 Q. So your relationship with Johnny Lomax was a friendly 45 one, was it not? 46 A. I only became - sorry, I only knew Johnny because the 47 first time he asked me to join the Union, so it was quite


1 recent. 2 3 Q. But it was friendly? 4 A. Yes, it was not bad. 5 6 Q. Do you have a company called Brown Star? 7 8 INTERPRETER: A. Yes. 9 10 Q. In this discussion with Zach and Johnny, do you 11 remember that Zach was talking to you about Brown Star? 12 A. I can't remember. 13 14 Q. Do you remember that you were asking Zach and Johnny 15 about your responsibilities for workers compensation and 16 for other payments? 17 A. No, we didn't discuss this. 18 19 Q. I suggest to you that Zach and Johnny told you, 20 generally, what you needed to do in relation to 21 superannuation, workers compensation, long service leave 22 and tax? 23 A. That's correct. 24 25 Q. And Johnny said -- 26 27 INTERPRETER: Sorry, the interpreter misunderstood. Mr He 28 actually said they didn't say something like that. 29 30 MR AGIUS: Q. I suggest to you that Johnny said 31 something like he could help you with those things -- 32 A. No, he didn't. 33 34 Q. -- and he asked you how many employees you had and you 35 told him six? 36 A. No, we didn't discuss this, no. He - he - and - let 37 me see. Let me think about it. I think no, I think we 38 didn't discuss anything about this. 39 40 Q. You didn't discuss how many employees you had? 41 A. I don't think I told him I had six. Maybe he asked 42 how many. I may have told him I have seven or eight 43 employees. I can't remember. 44 45 Q. Did you have work at the sites of Antalijia, I'll just 46 spell that because I may not have the pronunciation 47 correct: A-N-T-A-L-I-J-I-A, and another site,


1 I & I Developments? 2 A. Yes, I did. 3 4 Q. Was there conversation about that and did you say that 5 you had contracted the work on those two sites out, so you 6 didn't have your own employees down there? 7 A. I didn't tell him that both of these two sides were 8 contracted out. I only told him that I only contracted out 9 one of these sites. 10 11 Q. Which one? 12 A. 295 - Harrison work site. 13 14 Q. I suggest the conversation was about two sites: 15 Antalijia and I & I Developments? 16 A. One of these sites was contracted out, that's correct. 17 18 Q. Which one? 19 A. The one in Franklin. 20 21 Q. Antalijia or I & I? 22 A. I'm not quite sure, but I think it's Antalijia or 23 maybe - maybe Antalijia, Franklin, the Franklin one. 24 25 Q. I suggest to you that Johnny said to you that he 26 wanted all of your employees in the Union and that you said 27 you only had six? 28 A. He wanted me to sign in for - sign in 10 workers but 29 I told him currently I only have seven or eight. 30 31 Q. I suggest to you that he never said he wanted you to 32 sign in 10 workers, he said he wanted all your workers to 33 be members of the Union? 34 A. He told me 10 workers. 35 36 Q. I suggest to you that you said six, but that he never 37 asked for another four? 38 A. No, he told me that he need another four and he would 39 call me later. 40 41 Q. You see, I suggest it was you that said to him, "I'll 42 try and get you 10", but he never asked you for 10? 43 A. No, no, he said if you couldn't get 10 workers, the 44 boss wouldn't be happy, that's what he said. 45 46 Q. You see, I suggest to you that when he spoke about the 47 "boss", he said something like this: that he wanted all of


1 your workers in the Union because he would be working for 2 all of your workers, and if only six were in the Union, his 3 boss would not be happy with him? 4 A. That's not what he meant. He said I had to get 10 5 people joining the Union, otherwise the boss wouldn't be 6 happy. 7 8 Q. I suggest you said to him, "I'll try and get you 10", 9 but you only had six workers at that time? 10 A. What I told him was maybe in the future I will have 11 more workers. 12 13 Q. And you would be putting on more workers? 14 A. I was planning to. 15 16 Q. But you told him that? 17 A. I told him if I get more workers, no matter how many 18 I have, I'll get all of them signed in to the Union. 19 20 Q. Is it the case that about a week later you went to see 21 a foreman on another job who you knew about paying for the 22 Union memberships? 23 A. That's right. 24 25 Q. And then the foreman telephoned the Union office to 26 tell them that you were wanting to pay for six memberships 27 and that you had six membership forms with you? 28 A. Right. 29 30 Q. And then their foreman helped you to make whatever 31 arrangements were necessary for you to pay for the six 32 memberships? 33 34 THE INTERPRETER: Sorry the interpreter may need to ask Mr 35 He. 36 37 A. No, it was not the foreman who arranged the payment. 38 I gave the payment of all six workers directly to Johnny. 39 40 MR AGIUS: Q. At the office? 41 A. No, on the work site. 42 43 Q. So, what, do you say Johnny came to the work site? 44 A. Yes. 45 46 Q. But you had asked the foreman to make that arrangement 47 for you?


1 A. The foreman, yes, right. 2 3 Q. And you've never paid memberships for any extra four 4 workers? 5 A. That's correct. 6 7 Q. And you were never asked to? 8 A. That's correct, they haven't yet. 9 10 MR AGIUS: Thank you, Commissioner. 11 12 THE COMMISSIONER: Thank you. Mr Pattenden, any 13 questions? 14 15 MR PATTENDEN: No. Thank you, Commissioner. 16 17 THE COMMISSIONER: Mr Stoljar, any questions? 18 19 MR STOLJAR: No, Commissioner. 20 21 THE COMMISSIONER: Mr He may be excused? 22 23 MR STOLJAR: Yes, Commissioner. 24 25 THE COMMISSIONER: Mr He, you are excused from further 26 attendance on the summons that brought you here. I should 27 thank you, Madam Interpreter, for your assistance, so you 28 can both leave your seats now. 29 30 <THE WITNESS WITHDREW 31 32 MR PATTENDEN: May I please be excused? 33 34 THE COMMISSIONER: Yes, certainly. Thank you for 35 returning today. 36 37 MR STOLJAR: It would now appear to be appropriate to 38 resume the examination of Mr Nikolic, if it is convenient. 39 40 <JOHN GEORGE NIKOLIC, on former oath: [10.23am] 41 42 <EXAMINATION BY MR AGIUS: 43 44 MR AGIUS: Q. Mr Nikolic, did you draft the MBA 45 submission to this Royal Commission? 46 A. I did. 47

.27/07/2015 CFMEU ACT 1132 J G NIKOLIC (Mr Agius) Transcript produced by DTI

1 Q. Was it approved by the Board or the controlling entity 2 within the MBA? 3 A. Yes, it was. 4 5 Q. I am not going to go into the detail of this because 6 the Royal Commission has advised that they are not 7 proposing to rely upon the survey that was conducted, but 8 did you devise that survey? 9 A. I did. 10 11 Q. You had 100 responses? 12 A. Yes, about that. 13 14 Q. How many members were there of the MBA at the time you 15 had those responses? 16 A. I think about 1,100. I'm not exactly sure. 17 18 Q. Your submission, slightly edited, appears on the MBA 19 website? 20 A. Yes. 21 22 Q. You draw upon that survey to form a number of 23 conclusions which you express in the submission? 24 A. Yes. 25 26 Q. But you do not disclose that only 100 out of 1,100 27 people responded to the survey? 28 A. Well, the survey does indicate that 100 people 29 responded. 30 31 Q. But it doesn't say that 1,100 members were asked to 32 respond, does it? 33 A. No. 34 35 Q. So that gives a false impression -- 36 37 MR MORISON: I object to this. 38 39 THE COMMISSIONER: Mr Morison, I think I will overrule 40 that objection. Yes, Mr Agius. 41 42 MR AGIUS: Q. That would tend to give a false 43 impression, does it not, as to how representative the 44 survey was? 45 A. No, I don't think so. 46 47 Q. Was that deliberate on your part?


1 A. No. 2 3 Q. In the submission - and there is only one aspect of it 4 that I am going to ask you about - you say this at 5 paragraph 2.25, and I am sorry, I only have one copy of it 6 but I am happy to pass it to you for you to check, but it 7 is a simple point I think: 8 9 As far as Master Builders is aware, despite 10 constant entries on to work sites by CFMEU 11 officials in the ACT, few, if any, reports 12 on alleged safety breaches appear to have 13 been sent to WorkSafe ACT by the CFMEU in 14 several years. 15 16 You were not intending to exclude the fact that the CFMEU 17 often called WorkSafe down to sites when they, the CFMEU, 18 are making work, health and safety inspections, were you? 19 A. No. 20 21 Q. You know that they do often call WorkSafe down to 22 sites, don't you? 23 A. Oh, I couldn't say that I am aware of that. As far as 24 I understand, usually it's the employers who call WorkSafe. 25 26 Q. We have had a number of case studies before this 27 Commission in which the evidence has been not that the MBA 28 members haven't called WorkSafe, but that the CFMEU has 29 called WorkSafe. Do you think that's typical? 30 A. No, I don't. 31 32 Q. I suggest to you that it is? 33 A. I reject that. 34 35 Q. Do you have knowledge of that? 36 A. Look, I am not holding myself out as an expert in 37 work, health and safety, or, indeed, the conduct of CFMEU 38 in relation to calling WorkSafe, so I don't think I can 39 fairly answer that. 40 41 Q. You go on to say: 42 43 This is despite the fact that the CFMEU 44 does not have any capacity to prosecute 45 alleged breaches under the WHS Act. It can 46 only investigate suspected breaches and 47 then report them to WorkSafe.


1 2 A. Correct. 3 4 Q. You understand that the right to prosecute was 5 something that was lost when the WHS Act was introduced? 6 A. I'm not aware of that. 7 8 Q. Nevertheless, the WHS Act preserves the Union's right, 9 upon reasonable suspicion of a safety breach, provided the 10 relevant officer is adequately authorised, the Act 11 preserves the right for them to enter a site. 12 A. Yes, upon reasonable suspicion. 13 14 Q. Without notice? 15 A. Without notice, prior to entry. 16 17 Q. You go on to say: 18 19 In other words, there appears to be a 20 contradiction between the CFMEU's stated 21 reason for entry and their interest in 22 enforcement. 23 24 A. Yes. 25 26 Q. How can you say that unless the stated reason for 27 entry is not true? In other words, isn't there a premise 28 there that when the CFMEU states that its reason for entry 29 in every case is a risk to health and safety, that there 30 is, in fact, no risk? 31 A. No. The concern is - well, that submission was based 32 on a conversation I had with the WorkSafe Commissioner, 33 Mark McCabe. As I understand it, he told me that few, if 34 any, reports had ever been submitted to WorkSafe in several 35 years. At the time I wrote that, it was submitted and then 36 I went and checked that with Mr McCabe. He informed me 37 that actually photographs would be sent which were very 38 hard to interpret, often with very little text, which were 39 of almost no utility to WorkSafe, and, in fact, were a bit 40 of a waste of their time. So that conclusion that there 41 was a disconnection between their interests in enforcement 42 - oh, you'd have to repeat to me exactly - was based on the 43 idea that, well, if they're really interested in 44 prosecuting these safety issues that they're apparently 45 finding on site and they had a reasonable suspicion about, 46 given that they can't prosecute these breaches, you would 47 think that they would provide more detailed information to


1 WorkSafe so that the matter can be properly followed up by 2 the Regulator. 3 4 Q. We have not been told if Mr McCabe is going to give 5 evidence in these proceedings. Would you not agree that 6 there would be an obligation upon WorkSafe, themselves, to 7 investigate the circumstances of the photographs if they 8 received them from the CFMEU? 9 A. If they thought it raised a reasonable suspicion, it 10 would be up to their discretion, I imagine, and, as far as 11 I am aware, the WorkSafe Commissioner placed very little 12 confidence in those, which he in fact, when I raised it 13 with him, he said, "I don't think you could even call that 14 a report", so we left the submission at that. 15 16 Q. You don't think you could even call that a report, 17 what? 18 A. Yes, a bunch of photographs with no further 19 information. 20 21 Q. I suggest to you that that is not what the CFMEU does 22 when it converses with WorkSafe about safety issues on 23 site? 24 A. Well, it is what they do after entering. I don't even 25 know - I mean, probably from - they may not even provide 26 photographs, but, as I understand it, after they enter, 27 they rarely provide anything apart from photographs which 28 on the advice I received from the Regulator could barely be 29 called - in fact, couldn't be called a report. 30 31 Q. So, you are dependent upon Mr McCabe for that? 32 A. Well, yes. 33 34 Q. Have you ever seen any of these photographs? 35 A. Yes, I've seen some of these photographs. 36 37 Q. Captioned? 38 A. No, I haven't seen that, not to my recollection. 39 40 Q. How have you seen them? 41 A. Oh, occasionally, I might be sent some. It is not an 42 area I work in. I don't advise on work, health and safety 43 breaches, so - but occasionally when there's a right of 44 entry dispute, members might send some of the reports - in 45 adverted commas - that have been provided to WorkSafe. 46 47 Q. So you're able to identify the site?


1 A. No. 2 3 Q. Well, if members send you the "reports", you know 4 which member is sending them to you? 5 A. Oh, sure. 6 7 Q. And no doubt you are informed about the nature of the 8 dispute and the incident from the members' point of view? 9 A. Yes. 10 11 Q. So that means you're able to identify the site, 12 doesn't it? 13 A. Not from the photos. I misunderstood your question. 14 15 Q. But from the information you receive? 16 A. Sure. 17 18 Q. Do you forward that to WorkSafe, yourself? 19 A. No. 20 21 Q. The MBA provides a service to its members which 22 includes advice to the members that they do not need to 23 sign a CFMEU agreement? 24 A. Well, of course they don't, no. 25 26 Q. I am not asking you about the law, I am asking you 27 about whether you provide that advice to your members? 28 A. That the law is that they don't have to sign an 29 enterprise agreement, yes. 30 31 Q. Indeed, you advise them, don't you, that they can 32 enter non-Union EBAs? 33 A. Yes. 34 35 Q. And you're available, that is, the MBA is available to 36 assist them in the structure of non-Union EBAs? 37 A. Correct. 38 39 Q. And non-Union EBAs could be put to the workforce, and 40 the workforce have an opportunity, without representation 41 by the Union, to vote on a non-Union EBA? 42 A. That's correct. 43 44 Q. If the workers accept it, then that EBA, provided the 45 formalities are satisfied, can be put before the Commission 46 and, in effect, it becomes a binding agreement between the 47 workers and the employer?


1 A. Correct. 2 3 Q. All of that advice is available from the MBA to its 4 members? 5 A. Yes. 6 7 Q. And that is advice that you have given to Mr Milin, is 8 it not? 9 A. I can't recall, actually. 10 11 Q. But you would expect that all of your members are 12 aware of those matters -- 13 A. Yes. 14 15 Q. -- relating to EBAs? 16 A. Certainly if a member calls to inquire about 17 enterprise bargaining, or more often than not it's an 18 inquiry about circumstances in which they are being forced 19 to sign an enterprise agreement, we will advise them that 20 they do have freedom of choice. 21 22 Q. Does the MBA have any association with ACIRT? 23 A. Not Master Builders ACT, to my knowledge. 24 25 Q. Other MBAs? 26 A. Yes. 27 28 Q. Do any employers have associations with ACIRT? 29 A. Not to my knowledge. 30 31 Q. Within the ACT? 32 A. Not to my - I don't know. Not to my knowledge. 33 34 Q. But you do know that it is supported in other States 35 by the MBA? 36 A. Well, I don't know if it's supported by them, but I do 37 understand that Master Builders New South Wales has some 38 kind of association with it. 39 40 Q. And that's the extent of your knowledge, just some 41 kind of association? 42 A. Yes. 43 44 Q. A number of contractors who have given evidence in the 45 last week or two have indicated that, in substance, they 46 were not aware of the WHS law in relation to a union's 47 right of entry on to a site in relation to safety matters.


1 Do you provide any courses of instruction to your members 2 to make them familiar with, or in an endeavour to make them 3 familiar with, the application of the WHS law as it applies 4 to rights of entry? 5 A. Yes. 6 7 Q. How do you do that? Are there lectures that these 8 members can go to or is it only upon inquiry? 9 A. There are seminars and there's written material, fact 10 sheets, et cetera, that can be referred to, that are 11 available for members. 12 13 Q. When you say "that can be referred to", are these that 14 can be referred to upon inquiry, or are they mailed out to 15 all the members? 16 A. Oh, they're, yes, both. 17 18 Q. Are they on the website? 19 A. I don't know if they're on the website. 20 21 Q. Just to give you a hypothetical example, without going 22 to particular case studies, if an employer has doubts about 23 a union right of entry, under the WHS Act, is there 24 something on the website that employers can go to to 25 clarify what the law is in that regard? 26 A. On Master Builders' ACT website? Oh, look, I'm not 27 sure. 28 29 Q. Do you think that would be a good idea? 30 A. Yes. 31 32 Q. What about the police, do Master Builders hold any 33 information sessions with the ACT police to inform 34 police -- 35 A. I should just mention as well that we're designing a 36 right of entry app for use on people's Smart Phones so 37 that'll be -- 38 39 Q. Are you doing that in consultation with the CFMEU? 40 A. No. 41 42 Q. Do you propose to consult? 43 A. No. 44 45 Q. Don't you think it would be a good idea to consult 46 with those who are exercising a right of entry? 47 A. Look, the CFMEU has not responded to any


1 correspondence I have put to them since about the time we 2 lodged our submission, so - that's a nice idea but -- 3 4 Q. But you haven't asked them? 5 6 MR MORISON: Objection. The witness should be allowed to 7 finish his answer. 8 9 MR AGIUS: I'm sorry, I didn't intend to cut you off. 10 11 THE COMMISSIONER: Could we -- 12 13 THE WITNESS: Look, yes, in an ideal world, it would be 14 lovely to consult with a union that was willing to abide by 15 the law. 16 17 MR AGIUS: Q. What about the police, have you had any 18 consultation sessions, at any level, with the ACT police to 19 express any view about the effect of the WHS law and the 20 rights of entry provision? 21 A. Could you repeat that question, please? 22 23 Q. Have you had any consultations with the ACT police 24 concerning the operation of the WHS law right of entry 25 provisions? 26 A. No. 27 28 Q. There has been some evidence called about police 29 response to the exercise of a right of entry by CFMEU, and, 30 without going through all the detail, it is apparent that 31 in some circumstances the police are in some doubt as to 32 what the WHS rights of entry provisions are. Do you think 33 it would be a good idea for there to be joint consultation 34 between the police, Master Builders and the CFMEU on the 35 question of rights of entry under the WHS Act? 36 A. Yes. 37 38 Q. The rights of entry under the WHS Act are different to 39 the rights of entry under the Fair Work Act, aren't they? 40 A. Yes. 41 42 MR AGIUS: Thank you, Mr Commissioner. 43 44 THE COMMISSIONER: Just a moment. Yes, Mr Morison? 45 46 MR MORISON: Thank you, Commissioner. 47


1 <EXAMINATION BY MR MORISON: 2 3 MR MORISON: Q. There was an email sent from 4 Jason Hooper to Matt McCann, cc'ed on to Tony Cappello, 5 Justin Tierney, Dave Broadley and yourself, dated 28 April 6 2015. It is an exhibit in the proceedings. I just want to 7 read part of that and ask you something in relation to it. 8 Jason Hooper indicates: 9 10 You have also openly admitted to me that as 11 an electrician it wouldn't be hard for you 12 to find safety issues on any site you 13 visit. You also openly admitted to me, 14 when we had a coffee last month, that you 15 were bringing Theo and Luke down from 16 Sydney to belt some sites of contractors 17 who were not signing. 18 19 Do you recall receiving that email? 20 A. I do. 21 22 Q. Could you tell the Commission what your understanding 23 is of the term "belt some sites"? 24 A. Yes. It means that sites are going to be targeted and 25 disrupted in order to apply pressure on builders not to use 26 contractors that are not nominated by the particular union. 27 28 Q. Right. It is a term referring to action by unions to 29 go on to sites to cause disruption to non-compliant 30 contractors, people that haven't got EBAs; is that right? 31 A. Yes. Well, I mean, it could be used - it's a 32 disruption of a site. It's a belting, a bashing, it's an 33 act of violence upon the site and it could be used for a 34 range of ends, but effectively so that union demands are 35 met, whatever they happen to be. That might be that the 36 builder use union nominated or union approved contractors. 37 It might be other demands. 38 39 Q. When we are we're talking about unions, I use that 40 term colloquially, we're talking about the CEPU and the 41 CFMEU? 42 A. Yes, that's right. 43 44 Q. Mr Agius last week, at page 1116 of the transcript, 45 line 29, asked you this question: 46 47 Q. Why do you say it's possible you may

.27/07/2015 CFMEU ACT 1141 J G NIKOLIC (Mr Morison) Transcript produced by DTI

1 have said that to Mr Hooper? 2 A. Look, I don't know if I said that. 3 Like I say, I can't remember what I said to 4 Mr Hooper. I just conveyed that a threat 5 was made. 6 7 Mr Agius then put to you: 8 9 Q. Yes. Might it be that you conveyed 10 that to Mr Hooper because what you were 11 trying to do is promote aggression as 12 between him and the CFMEU? 13 A. No, of course not. 14 15 Have you, at any point in time, ever promoted aggression as 16 between him and the CFMEU? 17 A. Never. 18 19 Q. What has been your action and intention in relation to 20 your role, your conduct, as between the CFMEU and Mr Hooper 21 in terms of negotiations, or anything of that nature? 22 A. Well, in the - in an industry where industrial 23 relations is explicitly and rhetorically closed by the 24 CFMEU and CEPU in times of belligerence, I have always 25 tried to maintain and keep the peace, and preserve as much 26 space as I can for members to exercise their legal 27 freedoms. In relation to Mr Hooper, a threat was conveyed 28 to me through the Secretary of the CFMEU. I conveyed that 29 to Mr Hooper, and I did my best to protect him from that 30 threat. Initially, that meant I think it was a policy of 31 not antagonising them as best possible and, increasingly, 32 as the industry found courage to reclaim some of its lost 33 rights, to allow him to exercise them, for example, by 34 entering into potentially an enterprise agreement directly 35 with his employees, which is in train, and most 36 importantly, by finally giving voice to the abuses that he 37 and other members have been subjected to for far too long. 38 39 Q. Further on Mr Agius also made this accusation against 40 you at page 1118, line 38. It is in relation to - well, go 41 from line 32: 42 43 Q. The reason you don't know is because 44 those words were never said to you; that 45 is, a meeting with Mr Hooper in the paddock 46 and dealing with him in the old-fashioned 47 way, you know those words were never said


1 to you, don't you? 2 A. No, I don't know that. 3 4 Q. And you know that you conveyed that to 5 Mr Hooper for a motive of your own, don't 6 you? 7 A. That is not true. 8 9 Q. Your job, as you see it, is to promote 10 conflict between the CFMEU and your 11 members; isn't that right? 12 A. No. 13 14 Q. Isn't that what you do? 15 A. No. 16 17 What do you say to Mr Agius's accusation that you see your 18 job as promoting conflict, how do you answer that? 19 A. Well, I absolutely reject that I see it as my role as 20 promoting conflict. Of course it's not. But I think it's 21 an interesting question that was put to me. It would 22 appear that by saying "no" to the ultimatums and demands 23 backed up by threats on the part of the CFMEU and the CEPU, 24 that that simple act of freedom of saying "no" is seen as 25 promoting aggression, but, really, it's merely that people 26 are standing up for their right to say no. Is saying "no" 27 picking a fight, when you're in fact the one being 28 threatened? 29 30 Q. Further on, Mr Agius referred to some minutes of a 31 meeting of 17 May 2013. This is at pages 1121 and 1122 of 32 the transcript. Mr Agius, in a speech to the Commission at 33 the top of page 1121, indicates the reason he wishes to ask 34 questions about this matter, at the top of the page at 35 point 2: 36 37 ... at least one of which was attended by 38 this witness, where the approach of the 39 CFMEU was demonstrated. 40 41 That is in reference to the minutes of a meeting on 42 WorkSafe. Do you recall the meeting that I am referring to 43 and the minutes that I am referring to? 44 A. I do. 45 46 Q. You were, I think, an observer at that meeting; is 47 that right?


1 A. Yes. 2 3 Q. You agreed with Mr Agius, at page 1122, that you were 4 present and had seen the minutes; you didn't dispute the 5 contents of them. Did you have a conversation with 6 Mr Hall - first of all, did you hear Mr Hall say anything 7 that's outside of the minutes during the course of that 8 meeting? 9 A. Yes, I did. 10 11 Q. What was that? 12 A. Mr Hall was relating to the Council -- 13 14 MR AGIUS: I object to this. This is a portion of this 15 witness's statement which this Commission has declined to 16 lead in evidence. In our respectful submission, it should 17 not be introduced now in re-examination of this witness, by 18 his own counsel. 19 20 THE COMMISSIONER: Yes. Let us just hold that objection. 21 Rightly or wrongly, I think it might help in assessing its 22 validity if I could actually see the minutes of the meeting 23 - the meeting, that is to say, at which you got Mr Nikolic, 24 without any difficulty, to indicate that he would not 25 dispute the contents. 26 27 MR AGIUS: Yes. 28 29 THE COMMISSIONER: So many things can be in the evidence 30 which -- 31 32 MR AGIUS: It is not yet in evidence. I anticipate it 33 will be because it is an annexure to Mr Hall's statement. 34 35 THE COMMISSIONER: Yes. 36 37 MR AGIUS: I will just turn up the annexure number. It is 38 DH3 to the statement of 23 September 2014. 39 40 THE COMMISSIONER: Yes, I think I've got that. I think 41 I should ask Mr Morison this question: the question which 42 is under objection, does it relate to any particular part 43 of those minutes? Do you have a copy of them handy? 44 45 MR MORISON: I do. The reason I raised the question is 46 because Mr Agius is attempting to give the impression that 47 the minutes truly reflect what happened at the meeting, and


1 that's why he raised it, when, in fact, that's not what 2 entirely happened at the meeting. There is additional 3 evidence this witness can proffer. 4 5 The agreement was that this matter was not to be 6 raised at all. Mr Agius introduced it. It wasn't 7 introduced by Counsel Assisting. He introduced the minutes 8 of that meeting, purposefully to demonstrate that what the 9 minutes contained reflected exactly what had happened. 10 11 I am simply raising in re-examination something that 12 was referred to by Mr Nikolic in his statement in relation 13 to this particular aspect. I can show you, Commissioner, 14 the part of the statement that talks about this particular 15 meeting for your permission to rule as to whether or not 16 I'm entitled to raise this in re-examination, or whether 17 Mr Agius has done this fairy. 18 19 THE COMMISSIONER: We have some evidence that the content 20 of the minutes of the meeting are not disputed. 21 22 MR MORISON: That's right. 23 24 THE COMMISSIONER: But are you saying there was something 25 else that happened at the meeting that isn't in the 26 minutes -- 27 28 MR MORISON: That's right. 29 30 THE COMMISSIONER: -- that bears on what the minutes 31 record as having happened? 32 33 MR MORISON: That wasn't recorded in the meeting. 34 35 THE COMMISSIONER: In other words, something happened? 36 37 MR MORISON: Yes. 38 39 THE COMMISSIONER: It wasn't recorded in the minutes? 40 41 MR MORISON: That's right. 42 43 THE COMMISSIONER: The minutes are true and correct as far 44 as they go, or to use the words of the evidence, the 45 content is undisputed -- 46 47 MR MORISON: Yes.


1 2 THE COMMISSIONER: -- but there is something not recorded 3 that is germane to what is recorded? 4 5 MR MORISON: That's right. 6 7 THE COMMISSIONER: Mr Agius? 8 9 MR AGIUS: I haven't raised a matter in the statement 10 which my friend is now attempting to get into evidence. 11 I deliberately didn't cross-examine upon the statement, but 12 I cross-examined only upon the minutes themselves. The 13 point of my examination was to establish whether or not 14 this witness was familiar with certain matters which are in 15 the minutes. I never asked any questions about any matter 16 that is not in the minutes. 17 18 What his counsel is now attempting to do, as 19 I anticipate it, is to get into evidence paragraph 6 of 20 Mr Nikolic's statement which this Commission has determined 21 would not be led in evidence. 22 23 THE COMMISSIONER: Let us just get one thing straight, 24 I think we have to all bear one thing in mind, that 25 Mr Stoljar has decided not to rely on it. 26 27 MR AGIUS: I apologise. I am trying to use neutral terms. 28 I'm not being critical of my friend. I can well understand 29 why someone in my learned friend's position would not want 30 to rely upon this material, but the fact is we have been 31 told it is not going to be relied upon. We have conducted 32 our case on a particular basis and now in re-examination, 33 material which I didn't cross-examine on, which is not 34 referred to in the minutes, is sought to be introduced. 35 36 THE COMMISSIONER: Let me just make this point and then 37 ask Mr Stoljar a question. The witness's indisposition to 38 dispute the contents of course is put entirely generally. 39 If there was some particular part that you especially 40 wanted to get consent to, or non-objection to, that is one 41 thing, and maybe such a part makes sense of what Mr Morison 42 is now asking about. I just make that observation. 43 44 Let me look at something. Mr Stoljar, do you have a 45 position on this tender by Mr Morison and the objection to 46 it by Mr Agius? 47


1 MR STOLJAR: I suspect I was thinking down similar lines 2 to those that you just foreshadowed, Commissioner, where if 3 there was some particular - perhaps I can come at it this 4 way. What Mr Morison is engaged in is an exercise of, if 5 necessary, clarifying or correcting any answer that has 6 been given, if it might be insufficient or mislead the 7 Commission in some way, so that -- 8 9 THE COMMISSIONER: That is the classical purpose of 10 re-examination. Of course, our earnest endeavours often 11 stray a long way from classical considerations. 12 13 MR STOLJAR: True, but if there is some identified 14 difficulty with the answer that was given, as I understand 15 it on Friday afternoon, to a question about the content of 16 the minute, such that the answer is insufficient, or needs 17 clarification, or amplification, then that would be a 18 legitimate purpose of the re-examination. It would not be 19 a legitimate purpose of the re-examination is simply go 20 into a wide range of material that was otherwise not 21 intended to go into evidence. It may be that the question 22 could be made more precise in a way that would make it fall 23 within the first category rather than the second category. 24 25 THE COMMISSIONER: Would it enrage you unduly, Mr Agius, 26 if I asked a question? I think I should give you some 27 warning. You see in that paragraph 6 - I think it was you 28 who drew attention to paragraph 6 of this statement that is 29 not in evidence, do you see the third sentence? 30 31 My query would simply be this, if I asked, "Did 32 Mr Hall say something like that?", would you object to it? 33 34 MR AGIUS: The third sentence, is that -- 35 36 THE COMMISSIONER: That is the one that begins "Mr Hall 37 related". One is, "I recall that", two is - sorry, I do 38 apologise. Mr Agius, you have to forgive me, I find it 39 very hard to read now. The sentence I am concentrating on 40 is actually the second sentence which begins "Mr Hall 41 related". 42 43 MR AGIUS: I'm sorry. Well, that's the point. 44 45 THE COMMISSIONER: You do object? 46 47 MR AGIUS: Yes. We object because that can't arise in


1 re-examination because I never - my friend, Mr Morison, 2 hasn't identified any question or any answer which opens 3 the door to clarifying, by reference to what is in 4 paragraph 6 in Mr Nikolic's statement. 5 6 THE COMMISSIONER: Yes. 7 8 MR AGIUS: In fact, many of my questions were objected to 9 and, I'm not complaining about this now, but many of them 10 were rejected. 11 12 THE COMMISSIONER: To be precise, between 1110 and 1118, 13 four questions were objected to and your questions were 14 allowed. From 1118 to 1123, I think that three questions 15 were objected to, and they were rejected, and I rejected 16 three questions. Are any of those questions germane to 17 this present small controversy? 18 19 MR AGIUS: No, I do not believe so. 20 21 THE COMMISSIONER: Because if you want -- 22 23 MR AGIUS: I never raised this issue. 24 25 THE COMMISSIONER: You can ask them again, if you like. 26 You said at the end of Friday -- 27 28 MR AGIUS: I understand that, yes, but I have -- 29 30 THE COMMISSIONER: You can ask them again, if you want, if 31 you feel that it has hampered the presentation of the 32 CFMEU's position or any other of your clients. 33 34 MR AGIUS: That's not a matter I have considered again 35 since last Friday. 36 37 THE COMMISSIONER: Let me take up your point with 38 Mr Morison. Mr Morison, you have DH-3, being the minutes 39 of 17 May? 40 41 MR MORISON: Yes, Commissioner. 42 43 THE COMMISSIONER: And you have paragraph 6 of the witness 44 statement that has not been tendered. 45 46 MR MORISON: Yes. 47


1 THE COMMISSIONER: What you are focusing on is what, after 2 much peering, I have now worked out to be the second 3 sentence of paragraph 6? 4 5 MR MORISON: That's correct. 6 7 THE COMMISSIONER: Is there any part of the minutes that 8 that second sentence bears on -- 9 10 MR MORISON: No. 11 12 THE COMMISSIONER: -- in this sense, that Mr Agius 13 elicited on Friday from Mr Nikolic that he did not dispute 14 the minutes. If that second sentence might indicate 15 something misleading or incomplete about that answer, then 16 it would be a legitimate form of re-examination. Mr Agius 17 is saying it does not, or at least that none has yet been 18 pointed to. The question is: can you point to any part 19 that that sentence bears on? 20 21 MR MORISON: Well, (a), it is not recorded in the minutes, 22 first of all; (b), in relation to item "14/6: 23 Member Initiatives and Activities", there's a reference 24 there to what Dean Hall has said about it. 25 26 THE COMMISSIONER: Just one moment? 14/6? 27 28 MR MORISON: "Member issues and activities". 29 30 THE COMMISSIONER: I have 14/6-1. Yes, I see what you are 31 pointing to. Now, which bit of that? 32 33 MR MORISON: Well, the first two paragraphs. 34 35 THE COMMISSIONER: Yes. I reject the question. 36 37 MR MORISON: Certainly. 38 39 Q. In relation to the - you were asked questions about 40 getting home safely relied upon - well, first of all, could 41 I ask this question: do the minutes that you've agreed - 42 you've agreed you have seen the minutes of that meeting. 43 Do you dispute the content of the minutes of that meeting, 44 I'm now referring to the 17 May meeting, at 1122. Did the 45 minutes record everything that happened at the meeting? 46 A. No. 47


1 Q. Was there something that happened at the meeting that 2 you can tell us in relation to what Mr Hall said? 3 4 MR AGIUS: I object to that. 5 6 THE COMMISSIONER: I think this is really the same problem 7 as the question which was rejected. 8 9 MR MORISON: Yes. 10 11 THE COMMISSIONER: I think the ruling must apply. 12 13 MR MORISON: Certainly, Commissioner. 14 15 Q. I will move on to the "Getting Home Safely" report. 16 You were asked questions at 1120 about that report. Do you 17 recall that? 18 A. Yes. 19 20 Q. You were also asked questions at page 1108 by 21 Mr Docking at line 27: 22 23 Who would within the Master Builders 24 Association? 25 26 And that was a reference to who would we ask about these 27 issues of safety within the Master Builders Association: 28 29 I assume a safety officer, a safety 30 adviser. 31 32 That was your answer, do you recall that? 33 A. I do. 34 35 Q. The Master Builders Association has a safety officer; 36 is that correct? 37 A. That's correct. 38 39 Q. What's his name? 40 A. Phil Edwards. 41 42 Q. Is it right in saying that your role is specifically 43 in terms, as a legal officer, rights of entry and workers 44 compensation; is that right? 45 A. Oh, he would generally deal with -- 46 47 Q. You, your role?


1 A. My role is rights of entry. 2 3 Q. And workers compensation? 4 A. Phil would generally deal with that too. 5 6 Q. Would he, all right. 7 A. Unless it related to a dismissal or something, yes. 8 9 Q. So, he's the person that deals specifically with 10 safety issues; is that right? 11 A. That's right. 12 13 Q. And he's the person that would be - are you aware that 14 he advises members in relation to safety issues? 15 A. Yes. 16 17 Q. And that he has organised training in relation to risk 18 behaviour and safety? 19 A. Yes. 20 21 Q. That he overviews systems that are in place? 22 A. Absolutely. 23 24 Q. That he consults with contractors; is that right? 25 A. That's right. 26 27 Q. And he helps members prepare safe working method 28 statements; is that right? 29 A. He does, yes. 30 31 Q. Mr Agius was asking you today about union EBAs and 32 non-union EBAs and you answered one of the questions in 33 which you were basically indicating there were a great deal 34 of circumstances in which your members have been forced, or 35 there has been coercion to force your members into signing 36 union EBAs; is that right? 37 A. That's right. 38 39 Q. Is it fair to say that members have had a great deal 40 of difficulty with the unions, both the CEPU and CFMEU, in 41 the process of negotiating union EBAs? 42 43 MR AGIUS: I object to that. Unless this witness was 44 involved in the negotiation of union EBAs, either with or 45 on behalf of members, then there's no basis formed for him 46 to be able to express an opinion about the attitude or the 47 experience of his members.


1 2 THE COMMISSIONER: Do you want to qualify the question 3 accordingly, Mr Morison? 4 5 MR MORISON: Yes, Commissioner. 6 7 Q. Have you been involved in negotiation of EBAs? 8 A. Yes. 9 10 Q. Have you been involved in negotiation of EBAs, both 11 union and non-union, with your members? 12 A. Yes. 13 14 Q. How would you categorise the dealings you've had with 15 the CFMEU and the CEPU in terms of their negotiations on 16 behalf of the Union? 17 A. Extraordinarily difficult. The negotiations really 18 also need to be bracketed in inverted commas. There's 19 always a gun in the back of the room, which is the threat 20 of disruption of people's sites and livelihood if people 21 don't agree to get inside the loop and enter into the EBA. 22 Although it has been possible to get minor drafting changes 23 to, for example, the pattern CFMEU EBA, those changes are 24 really only in terms of making the document clearer so that 25 our members understand what their legal rights and 26 obligations are because often the drafting is so poor, 27 unfortunately, that people really don't know where they 28 stand. The concessions that are offered are ridiculous in 29 many ways. There are many - there are core terms which are 30 non-negotiable, they are usually the 5 per cent increases, 31 and the range of union entities, or entities that the union 32 is affiliated with and from which it receives significant 33 funds, such as union affiliated charities, union affiliated 34 trading organisations, ACIRT, which was touched on before, 35 redundancy trust funds, income protection insurance scheme, 36 which the CFMEU affiliated training organisation gets a 37 commission from, which then goes back to the CFMEU, 38 et cetera, there are a web of business interests inside the 39 pattern EBA which are completely non-negotiable, except for 40 Cbus, and we did manage to extract a concession in relation 41 to Cbus which was that employers will perversely - 42 currently under the law, you can put - you can nominate a 43 superannuation fund in an enterprise agreement and then 44 employees, regardless of whether or not they voted in 45 favour of the agreement or they were there when it was 46 negotiated, they have to use that superannuation fund and 47 get punted out of whichever one they might have chosen


1 before. 2 3 We managed to extract concession from the union that 4 they could use an alternative superannuation fund, but only 5 if they went and had a consultation with the union first. 6 7 Q. So, there has been threats, there has been coercion. 8 What else has there been? 9 A. Well, the threats come in a range of forms. 10 Primarily, it is to disrupt the business and disrupt the 11 sites that they're working on, but - well, I suppose, 12 I mean, they come within a package of threats. There's 13 going to be interference with clients and tendering and, 14 regrettably, there is also physical and verbal 15 intimidation. One particular threat has always stuck in my 16 memory, and this person was not willing to give evidence 17 and once I tell you this, you'll understand why. They were 18 told, and this is what we have heard - you know, when 19 I first started in this job -- 20 21 MR AGIUS: I object to this. This is now hearsay upon 22 hearsay, in my respectful submission. No-one has been 23 identified. We have no ability to challenge this and 24 hearsay upon hearsay has been frowned upon in other 25 circumstances, whether it is a Royal Commission or in a 26 court, and it should not be permitted now, particularly not 27 in re-examination. 28 29 THE COMMISSIONER: Can I just ask this question. 30 31 Q. A person told you the incident you are about to 32 narrate? 33 A. They did. 34 35 Q. Right. Was that person, according to that person, the 36 recipient of the statements that you are about to narrate? 37 A. Yes. 38 39 THE COMMISSIONER: Is that firsthand hearsay? Because the 40 remark from X to the person who spoke to Mr Nikolic is not 41 itself a statement of fact. It is operative words. It is 42 like an offer of marriage, or an offer to make a contract, 43 so there is only single-hand hearsay. Of course, you have 44 another point which is you cannot check up on it, and so 45 forth. 46 47 Q. Do you know the name of the person who talked to you


1 about what he or she was complaining about? 2 A. I do. 3 4 Q. Right. You can give it, if necessary? 5 A. I would be reluctant to do so, I'm afraid, because 6 they would fear for their safety, their interests. 7 8 THE COMMISSIONER: We have moved from two objections you 9 have taken that are unsustainable, I think, but you are 10 entitled to demand an answer and I am disposed and, 11 I suppose, entitled to try and make up my mind whether the 12 witness should not be forced to give that answer. In other 13 words, that Mr Morison's question should be objected 14 pro tanto. 15 16 MR AGIUS: The other aspect of it is - and I don't know 17 because we were not conducting a voir dire - but I don't 18 know whether this witness is going to name the CFMEU people 19 who were alleged to have made whatever statements to the 20 unidentified person. If it is just, "The CFMEU said this", 21 as we hear time and again here, we have no opportunity to 22 go to anybody in particular and say, "Did you ever say 23 that?" We can't call any controversial -- 24 25 THE COMMISSIONER: Yes. All right, all right, Mr Agius. 26 27 Q. This person who spoke to you, did that person name an 28 official of any union? 29 A. They did. 30 31 Q. If you were forced to, you could either give that name 32 or be in breach of a direction from the Commission? 33 A. Yes. 34 35 THE COMMISSIONER: I think we are back to where we were 36 before your last submission. Do you insist on an answer; 37 that is to say the two names? 38 39 MR AGIUS: If this evidence is to be given, we would at 40 least want to know the name of the person at the CFMEU who 41 is alleged to have said whatever it is that was reported to 42 this witness. 43 44 THE COMMISSIONER: Mr Stoljar is in charge of extracting 45 evidence. What do you want me to do, Mr Stoljar: reject 46 the question, demand an answer, what? 47


1 MR STOLJAR: One option would be to ask for an answer but 2 if Mr Agius wants further details, the witness could write 3 it on a confidential exhibit, and a question of access to 4 that exhibit could be considered in more detail. 5 6 THE COMMISSIONER: In the first instance, the access would 7 have to be to all legal advisers to the CFMEU and their 8 officials, or any other CFMEU person, if the named person 9 is not already a client; secondly, to Mr Morison, and, 10 thirdly, to the Commission's team, but I suppose it goes 11 beyond that. 12 13 MR STOLJAR: It might not need to be to all CFMEU 14 officials. It might be merely to a designated person for 15 the purposes of getting instructions. 16 17 THE COMMISSIONER: Mr Agius? 18 19 MR AGIUS: Could I add just two matters? 20 21 THE COMMISSIONER: Yes. 22 23 MR AGIUS: One, the context in which this arises. This is 24 said to be re-examination. It cannot be arising from 25 anything that I put to the witness which was confusing, 26 ambiguous, or which in any way explains any answer he gave 27 during the course of my examination of him, or, for that 28 matter, the examination of Counsel Assisting. That's the 29 context and, for that reason alone, we shouldn't be going 30 into this area, in my respectful submission. 31 32 The other matter which is a matter of great concern, 33 in our respectful submission -- 34 35 THE COMMISSIONER: I am sorry, I did not quite hear the 36 last seven or eight words, "The other matter"? 37 38 MR AGIUS: The other matter, which is a matter of concern, 39 in my respectful submission, is this: we have this 40 witness's testimony about why the unnamed informant would 41 not want their name disclosed to this Royal Commission. We 42 do not know whether the unnamed informant has specifically 43 said that he or she would not want to be revealed as the 44 source of the information, and we do not know anything of 45 those circumstances. We do not know whether the belief of 46 the unknown informant about his or her safety is rational 47 or irrational. We don't know when this was said. We don't


1 know - because we are not able to examine any of this. 2 3 If this were a court, and I appreciate it isn't, then, 4 before a court considered making a suppression order of 5 somebody's name in this context, these matters could all be 6 investigated. They're not being investigated. I am not 7 being critical of the Commission in any way. It is the 8 circumstance in which this arises. Because it can't be 9 investigated, and because it clearly is going to be very 10 much against the interests of both my client and the as yet 11 unnamed Union official, the process, in our respectful 12 submission, is, of its nature, unfair and that would be 13 another reason to not permit this witness to give this 14 evidence. 15 16 If that person were to come along and ask for their 17 name to be suppressed and were able to support it upon a 18 particular basis, that would be a different matter. 19 20 We even have hearsay on the question of the unnamed 21 informant's attitude to having his or her name revealed in 22 this Commission. 23 24 THE COMMISSIONER: That's first-hand hearsay. 25 26 MR AGIUS: It is first-hand hearsay. 27 28 THE COMMISSIONER: Yes. 29 30 MR AGIUS: I don't think I said double hearsay for that. 31 32 THE COMMISSIONER: No, but your prior difficulty with 33 hearsay was greater than first-hand, and it also concerned 34 anonymous first-hand hearsay. I just interpolate that 35 there are many, many provisions in Australian, English and 36 American law that permit that type of hearsay, but let us 37 not worry about them. They are only part of the law of 38 evidence. So, we are talking about first-hand 39 non-anonymous hearsay, but your point is we do not know 40 directly the position of the person who spoke to the 41 witness? 42 43 MR AGIUS: Yes. 44 45 THE COMMISSIONER: I think we will take the morning tea 46 adjournment and put our thinking caps on. 47


1 SHORT ADJOURNMENT 2 3 THE COMMISSIONER: I uphold Mr Agius's objection to the 4 evidence which Mr Nikolic was about to give. Where is 5 Mr Nikolic? 6 7 MR MORISON: He will just be one moment, Commissioner, I'm 8 sorry. 9 10 THE COMMISSIONER: While you were out, Mr Nikolic, 11 I upheld Mr Agius's objection to the evidence you were 12 about to give. Mr Morison, any more questions? 13 14 MR MORISON: Yes. Thank you, Commissioner. 15 16 Q. Mr Agius asked you about a survey that you conducted 17 of MBA members, do you recall that? 18 A. I do. 19 20 Q. He asked you the question of how many of your members 21 responded to the survey and how many members you had. Do 22 you recall those questions? 23 A. Yes. 24 25 Q. Did some of the members speak to you about why they 26 didn't respond? 27 A. Yes. 28 29 Q. What did they say? 30 A. Oh, look, it's -- 31 32 MR AGIUS: Well, I object to this. It just doesn't arise 33 from my examination. I asked him simply about numbers and 34 about why he didn't refer to the fact that there were 1,100 35 members and 100 responded. That doesn't leave open an 36 opportunity to bring in all the evidence about why there 37 were not more than 100 responses. It was simply -- 38 39 THE COMMISSIONER: If 1,000 people were too apathetic to 40 respond, that is perhaps an interesting fact. If 1,000 41 people had other reasons for not responding, that might be 42 interesting, too, but 100 out of 1100 -- 43 44 MR AGIUS: Is less than 10 per cent. 45 46 THE COMMISSIONER: Yes. That is a critical remark you 47 have just made.


1 2 MR AGIUS: The point of the examination that I conducted 3 was that the witness did not disclose that there were 1,100 4 members, and I asked whether that was deliberate. I didn't 5 ask any questions about why the other 1,000 people did not 6 respond. This re-examination is now seeking to get this 7 witness's evidence about why other people did not respond. 8 I didn't open that up at all. 9 10 THE COMMISSIONER: Yes, very well. If you put submissions 11 at the end of the day which hinge on the less than 12 10 per cent response rate, it may be open to someone to 13 make an application for Mr Nikolic to be recalled, to cast 14 light on why that might have been so. I reject 15 Mr Morison's question and I uphold your objection. 16 17 MR MORISON: Q. It is fair to say, isn't it, Mr Nikolic, 18 that you are willing to work with Union officials that act 19 reasonably? 20 A. Absolutely. 21 22 Q. Are you anti-Union? 23 A. No, certainly not. 24 25 Q. Would it be fair to say that you wish to provide 26 members a choice to ensure that they are exercising that 27 choice freely and in their best interests; would that be 28 fair to say? 29 A. Yes. 30 31 Q. Just finally, Mr Agius made a remark, rather 32 recklessly, I think. At 1112, he said to you - asked you 33 this question, he was saying at line 6: 34 35 Mr Commissioner, what I am trying to put to 36 this witness - and I have 29 minutes today 37 and all of Monday to do it - what I am 38 trying to put to this witness is the 39 ridiculous nature of the proposition that 40 he is venturing; that is, that the 41 Secretary of the CFMEU would bother to ring 42 this witness to complain about an email 43 that Mr Hooper wrote to the CEPU which did 44 not concern the CFMEU. 45 46 Do you recall that Mr Agius made that remark during the 47 proceedings on Friday?


1 A. I do. 2 3 Q. Annexure A, I think it is, to your statement, has that 4 email that we're referring to. I'm just going to read it 5 to you. Paragraph 6: 6 7 It is quite obvious why the CFMEU went to a 8 site in Fyshwick today as they directly 9 brought up the name of my company and said 10 that they had been on many sites which 11 I have been working on and that I have no 12 regard for safety and all they could pick 13 on is that my Excavator operator was not 14 working with a spotter and pointed out the 15 fine involved by WorkSafe for not working 16 to our SWMS. Well if they had bothered to 17 read my SWMS they would have read that we 18 are working to SWMS as we only need a 19 spotter when required so certainly not when 20 backfilling. My builder checked my SWMS 21 after your goons had left and agreed that 22 we are working to the SWMS so again made 23 the actions look unjustified and again is 24 documented and will be passed on to the 25 FWBC. I would also add that the CFMEU have 26 not been on any sites where I have been 27 working so that is a direct lie to the 28 builder. 29 30 Clearly, the email referred to refers directly to the 31 CFMEU; is that right? 32 A. That's correct. 33 34 Q. Is that the reason why you said that it was not 35 ridiculous, that Mr Hall would be given that email and 36 respond to it? 37 A. That's right. 38 39 Q. You indicated in the conversation that Mr Hall had 40 with you that the - there was an expression about, 41 "Mr Hooper had better be careful or he will be pulling 42 tampons out of pipes." Was that an expression you'd heard 43 before that day? 44 A. No. 45 46 Q. Is that why it clearly sticks in your memory? 47 A. Yes.


1 2 MR MORISON: Nothing further. 3 4 THE COMMISSIONER: Yes, thank you. Mr Stoljar? 5 6 MR STOLJAR: Nothing further, Commissioner. 7 8 MR AGIUS: I'm sorry, Mr Commissioner, I am not sure 9 whether this is the appropriate time, but during one of the 10 objections, the Commission raised with me the question as 11 to whether or not I wanted to revisit some of the material 12 that we sought to deal with on Friday. 13 14 THE COMMISSIONER: Yes. 15 16 MR AGIUS: There are two matters, if can we have that 17 opportunity. 18 19 THE COMMISSIONER: Yes. 20 21 MR AGIUS: One at page 1120 at line 23 and line 26. The 22 objection was Mr Morison's objection at line 28. 23 24 THE COMMISSIONER: Yes. 25 26 MR AGIUS: That is one area which we would shortly wish to 27 revisit. The next is at page 1123. My question began at 28 line 24 and was completed at lines 35 and 36. 29 30 THE COMMISSIONER: Yes. 31 32 MR AGIUS: That last matter has been taken up in 33 re-examination by Mr Morison, but, pertaining to that 34 question, there are some further questions that I would -- 35 36 THE COMMISSIONER: I think the simplest thing to do is to 37 just let you ask your questions on those two subjects. 38 The first of them is page 1120, line 26, was your question. 39 Yes, continue. 40 41 MR AGIUS: Thank you. 42 43 <EXAMINATION BY MR AGIUS: 44 45 MR AGIUS: Q. Mr Nikolic, you would have heard there are 46 two matters I want to take up with you. On Friday last, 47 I asked you whether you had seen the "Getting Them Home


1 Safely Report", you said you had seen it but you hadn't 2 read it. I asked you in what circumstances did you see it 3 and not read it, and you said you were aware it exists and 4 then I asked you this question which I'll ask you again: 5 6 Did you not think it important to read it? 7 8 I ask you that question again: did you not think it 9 important that you read the "Getting Home Safely Report"? 10 A. No, because it wasn't the area I was working in, and 11 it was being addressed by other staff members within the 12 Master Builders. 13 14 Q. When you say it wasn't the area you were working in, 15 you attended the meeting which has been the subject of some 16 discussion today, the Work Safety Council meeting, 17 number 14, on 17 May 2013? 18 A. Yes. 19 20 Q. You made a contribution, at least one contribution, to 21 that meeting about a work, health and safety matter, did 22 you not? 23 A. Yes. 24 25 Q. You said, in effect, when Mr Hall expressed the view 26 that workers should have at least a 50 per cent say in 27 safety and that mutual obligation and protection was a key 28 message, there was a response by Mr McCabe of WorkSafe, and 29 you said that members - sorry: 30 31 John Nikolic advised members that the MBA 32 supports worker consultation and that many 33 MBA members do consult with worker 34 representatives on safety matters. 35 36 That is a fair representation of your contribution to the 37 discussion at that point? 38 A. Oh, look, I do recall, yes, saying that we supported 39 consultation. 40 41 Q. And that members do consult with worker 42 representatives on safety matters? 43 A. Yes. 44 45 Q. Doesn't that betray your position, that is, that you 46 do have, as part of your employment, an interest in safety 47 matters?


1 A. Oh, look, it doesn't, because I was there as a sub. I 2 was just a substitution. I was just an observer. I don't 3 know normally deal in that area, but I'm aware - and this 4 probably leads on to your next question - as a response to 5 "Getting Home Safely", we hired someone who was a specific 6 safety adviser who would deal with these issues, so that 7 Master Builders had a dedicated resource. 8 9 Q. Is that the safety adviser who you identified in the 10 course of your earlier evidence today? 11 A. Yes, it is. 12 13 Q. That person or that position - let me start again. 14 That position was created in response to the report? 15 A. Yes, that's right. 16 17 Q. But didn't exist before the report? 18 A. No. 19 20 Q. That, in fact, may answer the second matter that 21 I sought leave to ask you further questions about. 22 23 MR AGIUS: Mr Commissioner, might I move to the question 24 asked on page 1123? 25 26 THE COMMISSIONER: Yes. As you say, I think you have 27 probably partly dealt with it, but if you want to deal with 28 it further. 29 30 MR AGIUS: Q. Has the MBA adopted any programs in an 31 effort to address the state of workplace health and safety 32 in the construction industry since you have been working at 33 the ACT Branch? 34 A. Yes. I'm not aware of all of the different programs, 35 but I do know that we had a conference about culture, 36 safety culture in the construction industry. We hired a 37 dedicated resource to ensure there wasn't a gap in terms of 38 that advice for members, and there was an OSCM - On Site 39 Construction Management course - that was designed that 40 would enhance the knowledge of site supervisors and foremen 41 in relation to safety. 42 43 Q. Did both of those matters arise as a result of the 44 "Getting Home Safely" report? 45 A. Yes. 46 47 MR AGIUS: Thank you, Mr Commissioner.


1 2 THE COMMISSIONER: Mr Stoljar? 3 4 MR STOLJAR: Nothing further, Commissioner. I don't know 5 whether Mr Morison wants to ask -- 6 7 THE COMMISSOINER: Mr Morison, do you want to ask any 8 questions arising out of that? 9 10 MR MORISON: No, I don't, Commissioner. 11 12 THE COMMISSIONER: Is there any objection to Mr Nikolic 13 being excused from further attendance? 14 15 MR STOLJAR: No, Commissioner. 16 17 THE COMMISSIONER: You are excused from further attendance 18 on your summons, Mr Nikolic. You can leave the witness box 19 now. 20 21 <THE WITNESS WITHDREW 22 23 MR STOLJAR: Commissioner, the next witness is Mr Arona, 24 who has been asked to be made available for 25 cross-examination. 26 27 <CLIVE TIMU ARONA, sworn: [11.50am] 28 29 <EXAMINATION BY MR STOLJAR: 30 31 MR STOLJAR: Q. Could you tell the Commission your full 32 name? 33 A. Clive Timu Arona. 34 35 Q. You're a resident of the ACT? 36 A. Queanbeyan. 37 38 Q. Queanbeyan, New South Wales. You gave evidence to 39 this Commission on 15 July 2015? 40 A. Yes. 41 42 MR STOLJAR: Mr Agius has some questions. 43 44 MR GAVAGNA: May it please the Commission, Gavagna on 45 behalf of Mr Arona. 46 47 THE COMMISSIONER: Yes, Mr Gavagna, thank you.

.27/07/2015 CFMEU ACT 1163 C T ARONA (Mr Stoljar) Transcript produced by DTI

1 2 <EXAMINATION BY MR AGIUS: 3 4 MR AGIUS: Q. Mr Arona, you gave evidence concerning 5 negotiations for the concreting sector EBA in 2013, and 6 I want to ask you some questions about that. Is it 7 accurate to say that you attended three or four of the 8 meetings that were conducted with the concreting sector? 9 A. I'm not sure on the exact number. 10 11 Q. Were there two representatives of your company, 12 Multi-Crete, at the meetings? 13 A. Not always. 14 15 Q. You participated in the meetings when you were 16 present? 17 A. Yes. 18 19 Q. And you were present when the agreement was reached, 20 including agreements dealing with superannuation, rates of 21 pay, training arrangements, ACIRT, and the audit process? 22 A. I think so, yes. 23 24 Q. And you didn't raise any issues about any of those 25 matters? 26 A. No. 27 28 Q. You say there was conversation about $16.50 a cubic 29 metre and $6.50 a finish; is that right? 30 A. Yes. 31 32 Q. That was conversation amongst the Canberra concreters? 33 A. Yes. 34 35 Q. That was conversation directed to this topic, what 36 some people thought it might cost them; that is, their cost 37 price if they signed the EBA? 38 A. Sorry, I'm not sure of the question. 39 40 Q. I'm trying to put it to you as neutrally as I can. 41 Perhaps I'll abandon that and go this way. I suggest to 42 you that if there was any conversation about $16.50 a cubic 43 metre, or $6.50 for finishing per square metre, then that 44 conversation was conversation amongst the concreters on the 45 topic of, "How much will this EBA cost us?", as opposed to 46 "How much we should charge out for our work?"? 47 A. Yes, I think so.

.27/07/2015 CFMEU ACT 1164 C T ARONA (Mr Agius) Transcript produced by DTI

1 2 Q. In fact, I suggest to you that there was no discussion 3 about charge-out rates by the concreters? 4 A. There was. 5 6 Q. I suggest to you that the concreters did not agree 7 amongst themselves as to how much they would charge on 8 various jobs after they signed the EBA? 9 A. Can you repeat that question, sorry? 10 11 Q. I suggest to you that there was no agreement reached 12 amongst the concreters as to how much they would charge out 13 for concreting after they signed the EBA? 14 A. Yes, there was. 15 16 Q. I'm sorry, when you say "yes" -- 17 A. Yes. 18 19 Q. You say, "Yes, there was"? 20 A. About the amount or -- 21 22 Q. Well, I'm asking you. What does "Yes, there was" 23 mean? 24 A. In your question did you ask, "Did you have a 25 conversation?", and is that - and was that what the 26 concrete charge-out was going to be? 27 28 Q. No, I didn't ask that question. Let me try again. 29 You see, at least one person who was at that meeting has 30 said, in this Commission, that it was, and I quote, 31 "farcical", to suggest that the concreters attending that 32 meeting discussed their charge-out rates; that is, the 33 rates upon which they would tender jobs, or the rates upon 34 which they would charge builders or developers for their 35 concreting. Do you agree with that? 36 A. No. 37 38 Q. Do you say that concreters discussed what they would 39 be charging? 40 A. Yes. 41 42 Q. And what was said about that? 43 A. And that's where the $16.50 and the $6.50 came up. 44 45 Q. But that was in the context, wasn't it, of how much 46 they would have to charge in order to cover the EBA? 47 A. Yes.


1 2 Q. The profit would be on top of that, wouldn't it? 3 A. Yes. 4 5 Q. And, in addition, on top of that would be the cost of 6 pumping equipment if that was required? 7 A. Yes. 8 9 Q. And that could vary from job to job? 10 A. Yes. 11 12 Q. What I'm suggesting to you is that none of the 13 concreters agreed that, regardless of any of the jobs, they 14 would all charge the same rates? 15 A. Discussed, yes, they would - they were, yes. 16 17 Q. Did they discuss that they would have to charge out 18 $16.50 a cubic metre and $6.50 for finishing in order to 19 cover the costs of the EBA? 20 A. Yes. 21 22 Q. What I am suggesting to you is that they didn't 23 discuss what their final price would be on any job? 24 A. No. 25 26 Q. Just that it would have to be, if they were going to 27 survive, $16.50, plus $6.50? 28 A. Yes. 29 30 Q. Because all of the contractors were interested to 31 know, as amongst themselves, how much the EBA was going to 32 oblige them to pay to their workers; isn't that right? 33 A. Yes. 34 35 Q. I suggest to you that at no stage did any CFMEU 36 representative ever urge any of the companies to charge a 37 particular set price for work that they were going to be 38 charging for? 39 A. No. 40 41 Q. You agree with me? 42 A. Yes. 43 44 MR AGIUS: Thank you, Commissioner. 45 46 THE COMMISSIONER: Thank you, Mr Agius. Mr Gavagna, any 47 questions?


1 2 MR GAVAGNA: Yes, Commissioner. 3 4 <EXAMINATION BY MR GAVAGNA: 5 6 MR GAVAGNA: Q. Mr Arona, you were asked about the 7 $16.50 and $6.50. Could you just explain your 8 understanding exactly of what those rates reflect? 9 A. Reflecting the cost of the EBA, what it cost us. 10 11 Q. You were then asked about the costs of concrete 12 pumping. Could they have ever been included in any rates 13 that were discussed between you and the other concreters? 14 A. No. 15 16 Q. Why not? 17 A. I don't remember the conversation. We didn't have 18 that conversation. 19 20 Q. The concrete rates for pumping would vary from job to 21 job; is that right? 22 A. Correct, yes. 23 24 Q. Do you do the concrete pumping? 25 A. Yes. 26 27 Q. You were asked about the rates again, and you were 28 asked questions about there was an agreement amongst the 29 concreters. Was that agreement reached before or after the 30 entry of the EBA? 31 A. Entry, meaning? 32 33 Q. Your signing of the EBA. 34 A. Before. 35 36 Q. Before? 37 A. Yes. 38 39 Q. Was that a condition that you placed on each other, or 40 was that an expectation that that rate was agreed between 41 you? 42 A. Expectation, I think. 43 44 Q. An expectation? 45 A. Mmm. 46 47 Q. What would happen if you didn't meet that expectation?

.27/07/2015 CFMEU ACT 1167 C T ARONA (Mr Gavagna) Transcript produced by DTI

1 A. I'm not sure. 2 3 Q. Was it expected that that would be the actual base 4 rate that you would apply to all your costings? 5 A. Yes. 6 7 Q. If you had not entered the EBA, could or would that 8 base rate be any different? 9 A. Yes. 10 11 Q. Would it be higher or lower? 12 A. Lower. 13 14 MR GAVAGNA: Thank you. I have no further questions. 15 16 THE COMMISSIONER: Thank you, Mr Gavagna. Mr Stoljar? 17 18 MR STOLJAR: I think one matter I was going to ask has 19 just been covered, but just in case. 20 21 <EXAMINATION BY MR STOLJAR: 22 23 MR STOLJAR: Q. Was there any discussion at the meeting 24 about what would happen if someone didn't charge $16.50 or 25 $6.50 as some sort of base rate? 26 A. No. No, I don't remember, no. 27 28 MR STOLJAR: Nothing further. Thank you, Commissioner. 29 30 THE COMMISSIONER: There is no objection, I take it, to 31 Mr Arona being excused? 32 33 MR STOLJAR: No. 34 35 THE COMMISSIONER: Mr Arona, you are excused from further 36 attendance on your summons. You can leave the witness box 37 now. 38 39 THE WITNESS: Thank you, Commissioner. 40 41 <THE WITNESS WITHDREW 42 43 THE COMMISSIONER: The next witness? 44 45 MR STOLJAR: The next witness is Mr Taleb who has also 46 been asked to be available for cross-examination. 47

.27/07/2015 CFMEU ACT 1168 C T ARONA (Mr Stoljar) Transcript produced by DTI

1 MR AGIUS: Whilst Mr Taleb is being called, 2 Mr Commissioner, my learned friend Mr Morison said in the 3 course of, I think, argument, he referred to an agreement 4 about Mr Nikolic's evidence being confined to those two 5 matters about which he did give evidence-in-chief. Lest it 6 be thought otherwise, it should be recorded that those for 7 whom I appear were not party to any such agreement. We 8 were aware of it; that is, we were aware that the witness 9 would only be asked about the two matters that he was asked 10 about, but we were not part of any agreement that he be 11 restricted to that matter. It is just that the way 12 Mr Morison put it, it may have been thought that we had 13 agreed to that. 14 15 THE COMMISSIONER: Yes. 16 17 MR STOLJAR: Commissioner, I don't know if it goes 18 anywhere, but the decision not to put that statement into 19 evidence was the decision of Counsel Assisting. I am not 20 sure it is accurate to say that there was an agreement 21 reached about it. That was just a decision taken, but in 22 any event. 23 24 MR MORISON: I can certainly say it was a loose word by 25 me. 26 27 THE COMMISSIONER: People can say things and they can note 28 it and put it on the record. Sometimes people say, 29 "I really can't offer a running commentary on the accuracy 30 of everything that is said in my presence." 31 32 <ELIAS JOSEPH TALEB, sworn: [12.04pm] 33 34 <EXAMINATION BY MR STOLJAR: 35 36 MR STOLJAR: Q. Your name is Elias Joseph Taleb? 37 A. Correct. 38 39 Q. You're a resident of the ACT? 40 A. Yes. 41 42 Q. You run a formwork company known as Class 1 Form? 43 A. Correct. 44 45 Q. You previously gave evidence to this Commission on 46 13 July 2015? 47 A. Yes.

.27/07/2015 CFMEU ACT 1169 E J TALEB (Mr Stoljar) Transcript produced by DTI

1 2 Q. Mr Agius now has some questions. 3 A. Thank you. 4 5 <EXAMINATION BY MR AGIUS: 6 7 MR AGIUS: Q. Thank you. Mr Taleb, you have referred to 8 the Yarralumla site in your statement and in the course of 9 your evidence. I want to put some things to you about 10 that. The relevant part of your statement is up on the 11 screen. I suggest to you that in connection with that 12 site, the CFMEU visited the site on or about 30 January 13 2013 and that whilst they were at the site, you called 14 Mr Hall concerning that visit? 15 A. Correct. 16 17 Q. And you were angry and agitated? 18 A. Could be. 19 20 Q. And you said to him, I'm not going to put the precise 21 words to you but just the substance, words to this effect: 22 "Dean, why are you there? What's going on?"? 23 A. I might have said that. 24 25 Q. And that he said to you that he was there for safety 26 issues? 27 A. I don't recall him saying that, no. 28 29 Q. And he went further than that and said words to this 30 effect: "The job is a disgrace. There's no-one in charge 31 of the job. There's no first-aid"? 32 A. I don't recall that. 33 34 Q. And that you, in this conversation, then began to talk 35 about EBAs and EBA rates? 36 A. He was asking me to sign an EBA and asking about 37 memberships. 38 39 Q. I suggest to you that you introduced the topic of EBA 40 and EBA rates? 41 A. He was asking about members on site. 42 43 Q. And he said to you, "This has got nothing to do with 44 EBAs, this is about safety, and this job is a disgrace", or 45 words to that effect? 46 A. I don't recall. That wasn't my job, anyways, I was 47 just a subcontractor on site.

.27/07/2015 CFMEU ACT 1170 E J TALEB (Mr Agius) Transcript produced by DTI

1 2 Q. A subcontractor doing what kind of work? 3 A. Formwork. 4 5 Q. Did you become aware that there were a large number of 6 safety issues on that site? 7 A. Yes, and WorkCover came afterwards and addressed it 8 all with Mr Bulum. 9 10 Q. I want to show you some photographs if I can. They 11 are DH1 behind Mr Hall's statement of 24 July 2015. 12 I think they're the wrong photographs. This statement 13 begins at paragraph 1: 14 15 I have read the statement of Elias Taleb. 16 17 There are a number of statements from Mr Hall. 18 I anticipate that Mr Hall will say that these are 19 photographs that were taken during the course of the visit 20 on 30 January 2013, and they reflected some of his concerns 21 about safety on the site on that day. The photos I have 22 numbered but we will just go through them page by page 23 shortly, if we can. Have you seen these photos before? 24 A. No. 25 26 Q. Do you see that in photograph 1, a hole has been cut 27 into the locked box? 28 A. Yes, but that has - it's none my concerns anyway. 29 Like I said, I was a subcontractor. 30 31 Q. That is a significant breach of safety, though, isn't 32 it? 33 A. Yes, but obviously he didn't care about safety because 34 he left site. After he discussed memberships and EBA with 35 me, he left site. 36 37 Q. I suggest to you he never discussed memberships and 38 the EBA? 39 A. No, he did, and I got a message to prove that too, 40 from him - or from myself to him. 41 42 Q. Where is that message? 43 A. On my phone. 44 45 Q. Has that been produced up until this point in time? 46 A. Probably this morning, yes. 47


1 Q. This morning? 2 A. Yes. 3 4 Q. Produced to whom? 5 A. Produced to someone. To the lawyers. 6 7 Q. The lawyers for the Royal Commission? 8 A. Yes. 9 10 Q. Or assisting Counsel Assisting? 11 A. Yes. 12 13 MR AGIUS: We've not seen that, Mr Commissioner. I may 14 need to take instructions about that after I have seen it. 15 16 Q. Do you see the second photograph? 17 A. Yes, I do. 18 19 Q. Do you see an absence of handrails and also handrails 20 in the background which appear to be non-compliant with the 21 Australian Standard? 22 A. Okay. 23 24 Q. Do you agree with that? 25 A. Yes, that's fine. 26 27 Q. Formwork is part of your work on this site? 28 A. Yes, but safety wasn't. Obviously that's a scaffold 29 issue, and safety issue, that wasn't my part. 30 31 Q. Surely your workers were likely to be the subject of 32 risk as a result of safety breaches, were they not? 33 A. They could have been. 34 35 Q. Could we go to the next page. Do you see that the 36 electrical lead there has wires exposed? 37 A. Yes. 38 39 Q. That's not a compliant lead, is it? 40 A. No, it's not. 41 42 Q. And the photograph at the bottom of that page, there's 43 an unmarked switchboard? 44 A. Sure. 45 46 Q. And no markings to indicate the source of any supply 47 to that switchboard?


1 A. I guess. 2 3 Q. And that renders that board non-compliant, doesn't it? 4 A. Sure. 5 6 Q. And if there was a problem with that board, then it 7 wouldn't be possible to quickly determine the source of 8 supply so that that source could be shut down? 9 A. True, yes. 10 11 Q. Do you agree with that? 12 A. Yes. 13 14 Q. A significant safety matter? 15 A. Maybe, but it's not significant. It's a brand new 16 box, but it's not for me to say if it was a significant 17 matter or not. 18 19 Q. Could we go to the next page. Do you see the gap in 20 scaffold there? 21 A. Mmm-hmm. 22 23 Q. Do you see it appears to be large enough to permit 24 somebody to fall down and that it's not guarded? Can you 25 see that? 26 A. Yes. 27 28 Q. That's a significant safety matter, isn't it? 29 A. It's not that large. It looks like that on the photo, 30 but it's probably 200mm there. This is just the angle 31 where he was standing from. 32 33 Q. Do you see that that is large enough to permit 34 somebody to fall through? 35 A. It could have been, yes. 36 37 Q. That's a significant safety issue, isn't it? 38 A. If you say so. 39 40 Q. Well, I'm putting it to you and I am asking whether 41 you agree? 42 A. I'm not a safety officer, so I wouldn't answer that. 43 44 Q. You wouldn't like your employees to be subject to the 45 risk of falling through that gap, would you? 46 A. Obviously not. 47


1 Q. If you look at the photograph at the bottom of that 2 page, do you see that it appears that material has been 3 stored on the scaffold and what appears to be a walkway on 4 the scaffold; do you agree with that? 5 A. Yes, sure. 6 7 Q. And that raises a safety issue, doesn't it? 8 A. Sure it does. 9 10 Q. Could we go to the next page. Do you see that there 11 are no handrails on that staircase? 12 A. Sure. 13 14 Q. In the photograph at the bottom of that page, there is 15 a gap between the scaffold and what appears to be a slab on 16 the right-hand side of the scaffold and below the scaffold? 17 Do you see that? 18 A. Yes. 19 20 Q. In the construction trade, that is referred to as a 21 penetration, isn't it? 22 A. Correct. 23 24 Q. It should be blocked over, shouldn't it? 25 A. Yes, it should be. 26 27 Q. That's a significant risk to safety, isn't it? 28 A. Sure. 29 30 Q. Could we go to the next page. Do you see that these 31 photographs demonstrate more examples of material being 32 stored on the scaffolding? 33 A. Sure. 34 35 Q. Giving rise to the potential for material to fall on 36 to workers below, or limiting access or egress, and 37 providing a trip hazard; do you agree with that? 38 A. Sure. 39 40 Q. Go to the next page. More examples, in the top 41 photograph, of materials being stored on the scaffold 42 limiting access and egress and creating a trip hazard? 43 A. Sure. 44 45 Q. Do you see the photograph at the bottom? That appears 46 to be a hop up place for edge protection, but there is 47 nothing to stop anybody from coming off the scaffold, is


1 there? That edge that we can see running diagonally 2 through that photograph should have been protected, should 3 it not? 4 A. Like I said, in the photo it looks worse than what it 5 was actually. It wasn't a safety concern when the safety 6 people came in, anyways. 7 8 Q. I suggest to you it looks the way it was and that it 9 presents a serious safety concern? 10 A. Look at the edge of that slab on an angle, that's why 11 it looks too big. He was standing from the wrong angle 12 anyways, but, again, that wasn't any of my concerns, so, 13 yeah, go on. 14 15 Q. If we go to the next photograph, you will see the 16 photograph at the bottom, absence of a handrail going down 17 the stairs? 18 A. Okay. 19 20 Q. You'll see on that switchboard that there's no 21 distribution plan, indicating what the source of power to 22 that switchboard was? 23 A. True. 24 25 Q. So you would agree, wouldn't you, that it would have 26 been appropriate to describe the state of health and safety 27 on that site, if it is represented by the photographs, as 28 being a disgrace? 29 A. Fair enough. But my discussion with Hall was strictly 30 about my employees, and whose members was not, and the EBA. 31 32 Q. I note you have said that two or three times, but do 33 you say there was no discussion about safety? 34 A. He said something in between lines about safety. If 35 that job was a disgrace, and I was him, I would have never 36 left the site. He left the site. He never made no 37 comments to anyone else. 38 39 Q. That is what you say. 40 A. That's what happened. 41 42 Q. I think I have put to you more than once that there 43 was no discussion about an EBA in the course of that 44 conversation? 45 A. No, there was. 46 47 Q. Other than it being raised by you as a topic and you


1 being told that this wasn't an issue about EBA, it was an 2 issue about safety; what do you say to that? 3 A. That wasn't true. 4 5 Q. In your statement, you indicated that in a 6 conversation you had with Jason O'Mara, he said to you that 7 he would ask Mr Kivalu to contact you now that you were a 8 formwork contractor. 9 A. Correct. 10 11 Q. I suggest to you that he didn't mention Mr Kivalu in 12 that conversation, but he said to you that he would ask 13 Mr Vitler to contact you? 14 A. That happened once before, yes, but he also commented 15 on Mr Kivalu to contact me; numerous times too. 16 17 Q. You have suggested in your evidence that Mr Vitler had 18 attended the Denham Constructions job and was trying to 19 shut it down. Do you have any direct evidence of that? 20 You never saw him there? 21 A. Well, I had a call from the employees, as well as a 22 call from the project manager on site. 23 24 Q. You say Mr Peachey told you that? 25 A. Yes. 26 27 Q. Mr Peachey hasn't given that evidence. 28 A. Maybe -- 29 30 Q. Do you want to withdraw your evidence? 31 A. No. This is what happened. 32 33 Q. I suggest to you that Mr Vitler at no stage attended 34 that site during any structural stage when formwork was 35 being done, what do you say to that? Can you say anything 36 against that proposition? 37 A. I don't know when he would have went. I know he went 38 and spoke to Peachey about not hiring me and hiring another 39 subcontractor, and that was given in my evidence too as 40 well. 41 42 Q. I want to bring you to the matter which you raise at 43 paragraphs 128 and following concerning your meeting with 44 Mr Fihi in relation to the ADCO site. Whereabouts did you 45 arrange to meet, or whereabouts did you meet with Mr Fihi 46 in connection with the ADCO site? 47 A. I don't recall where.


1 2 Q. I'm sorry? 3 A. I don't recall where we met. 4 5 Q. At paragraph 137 you say: 6 7 We met Fihi at the coffee shop in 8 Gungahlin, next to the ADCO site. 9 10 A. That would have been afterwards, yes. 11 12 Q. This was where it was that you say you paid Fihi 13 $15,000 in cash? 14 A. Correct. 15 16 Q. It was at that coffee shop that you say you paid Fihi 17 the money? 18 A. Yes. 19 20 Q. When you say "afterwards", I am asking you about the 21 meeting with him at the time that you paid him the money, 22 or when you say you paid him the money. Do you see that? 23 That is what you say in paragraphs 137 and 138? 24 A. Okay. 25 26 Q. There was somebody there named Clive? 27 A. Correct. 28 29 Q. You said you paid Fihi $15,000 in cash in the usual 30 manner? 31 A. Correct. 32 33 Q. What was the usual manner? 34 A. In cash, in an envelope for -- 35 36 Q. What kind of envelope? 37 A. Just whatever envelope I usually get from the bank, 38 when I withdraw cash. 39 40 Q. An envelope big enough to contain $15,000 in notes? 41 A. Yes. 42 43 Q. I'm sorry? 44 A. Yes. Just a normal envelope. 45 46 Q. I'm not sure these days we can all agree on what a 47 normal envelope is. Can you describe what you mean by a


1 normal envelope? 2 A. Just a normal envelope, I guess. I'm not sure of the 3 size right, though. 4 5 Q. So about the width of an A4 page? I'm just going by 6 the -- 7 A. Yes. 8 9 Q. -- demonstration you gave with your hand. 10 A. Yes. 11 12 Q. So, let's say the length of an A4 page -- 13 A. Okay. 14 15 Q. -- and about as high as one-third of an A4 page? 16 A. Yes. 17 18 Q. If you folded an A4 page into three, it would 19 comfortably fit into that envelope? 20 A. Sure. 21 22 Q. Can you remember what the denominations were of the 23 notes? 24 A. No. 25 26 Q. Can you remember whether the notes were folded or 27 whether they were -- 28 A. No, they'd be straight. Just like how it came out 29 from the bank. 30 31 Q. Did they have a little band around them from the bank? 32 A. Could have either been a band, a rubber-band, or 33 paper, I'm not sure. 34 35 Q. Do you have a recollection? 36 A. No, it's been so many times, I just don't remember at 37 that stage how it was. 38 39 Q. Did you seal the envelope? 40 A. No. 41 42 Q. So when you gave him the envelope, it was unsealed? 43 A. It was unsealed with a rubber-band around it so it 44 doesn't open up. 45 46 Q. You were at the cafe when this happened? 47 A. Correct.


1 2 Q. Were you inside the cafe or outside the cafe? 3 A. No, that was just an indoor place. 4 5 Q. I'm sorry? 6 A. We were inside. 7 8 Q. Sitting inside the cafe? 9 A. Yes. 10 11 Q. Were there tables and chairs outside? 12 A. I don't remember. 13 14 Q. But you weren't sitting outside? 15 A. Honestly, at that point, I don't remember if we were 16 inside or outside but -- 17 18 Q. Did you have coffee there? 19 A. Yes. 20 21 Q. Can you remember sitting there with the person you 22 refer to as Fihi - and I'll keep calling him that so 23 there's no issue about who he is -- 24 A. Yes. 25 26 Q. -- and Clive? 27 A. Sure. 28 29 Q. The three of you sitting around a table? 30 A. Correct. 31 32 Q. Were you looking out through a window of the cafe or 33 were you not able to see outside the cafe? 34 A. I don't remember. I wasn't looking around me trying 35 to see who was out there anyways. We were -- 36 37 Q. I am sorry, I just can't hear you. You have a deep 38 voice and also -- 39 A. We were trying to deal with him and I wasn't mad to 40 look at people or look around me. 41 42 Q. So you were trying to see - your answer as recorded, 43 and I make no complaint about this, I just want to be sure 44 this is what you said - I asked: 45 46 Were you looking out through a window of 47 the cafe or were you not able to see


1 outside the cafe? 2 3 And your answer was: 4 5 I don't remember. I was trying to see who 6 was looking forwards. [sic] 7 8 I am sorry, "I trying to see who was looking outwards" 9 [sic]; is that right? 10 A. No. 11 12 Q. I will let you answer that question again. Were you 13 looking outside through a window of the cafe? 14 A. Don't remember. 15 16 Q. Do you remember whether you had a view outside? 17 A. Maybe I have, maybe I haven't. I can't -- 18 19 Q. Had you been to that cafe before this day? 20 A. No, not really. 21 22 Q. "No, not really"? 23 A. No. 24 25 Q. Does that mean you had not been to that cafe before 26 this day? 27 A. No. I'd been to the one next door maybe or something 28 but not that one. 29 30 Q. When you say, "the one next door" -- 31 A. There's a few cafes. 32 33 Q. -- do you mean physically next door to this cafe? 34 A. Could be before or after. I'm not sure. 35 36 Q. If I was to suggest to you there was only one cafe 37 there in that vicinity at that time? 38 A. No, there would be more. There would have been more. 39 40 Q. Not what there would be, this is about what there was. 41 What do you say about that? 42 A. No, I remember seeing more than a cafe. 43 44 Q. How long did the meeting at the table inside the cafe 45 take? 46 A. I don't remember how long. 47


1 Q. Well, are we talking half an hour, or less? 2 A. I don't remember. 3 4 Q. An hour? 5 A. I can't remember. 6 7 Q. You have no idea? 8 A. No. 9 10 Q. What is the best recollection you have about how long 11 you were seated at the table with the other two gentlemen? 12 A. We just had a meeting after we went to site. We went 13 straight over the coffee shop, had a meeting with him. I 14 don't remember how long it was, I've given him the money, 15 and I wanted Clive to be there with me as a witness because 16 he was a subcontractor under Class 1 Form's banner, and 17 I wanted him to see that I've handed over the money. 18 That's why he was present. 19 20 Q. I'm not suggesting to you that no money was handed 21 over but I am asking you some questions about the 22 circumstances. So it might have been a minute or less? 23 A. It couldn't be a minute or less. It would have been 24 more than that, but I don't know how long. 25 26 Q. Did you have coffee? 27 A. Most likely I would have. I obviously went to a 28 coffee shop, so we probably would have ordered coffee. 29 I don't know. 30 31 Q. When Fihi left, were you and Clive left at the table? 32 A. No, we basically walked back together to the carpark 33 next to the job site. 34 35 Q. What, the three of you walked back to the carpark? 36 A. Yes. 37 38 Q. Did you walk back to your car? 39 A. Yes. I was in Clive's ute at the time. 40 41 Q. Did you see the Union car that Mr Fihi was walking to? 42 A. We were parked in the same carpark, yes. 43 44 Q. It's a very large carpark, though, isn't it? 45 A. No, not really. It's a construction site carpark. 46 47 Q. When you say, "No, not really", how large was the


1 carpark? 2 A. I didn't have a tape measure on me. I really -- 3 4 Q. Of course not. How large would you say it was? 5 A. Not that big. 6 7 Q. Regardless of whether it was that big, how large, 8 approximately? 9 A. It could have fit maybe 30 cars if -- 10 11 Q. In how many rows? 12 A. Just around the site. Obviously it wasn't that big. 13 14 Q. When you say "around the site", you mean around the 15 carpark? 16 A. Yes, around it. 17 18 Q. Does that mean two rows, one on each side? 19 A. Just a single row all the way around the perimeter. 20 21 Q. So one row all the way around the perimeter of the 22 carpark? 23 A. Correct. 24 25 Q. Facing the middle? 26 A. That's right. 27 28 Q. And whereabouts in relation to the carpark was your 29 car, that is the car you were travelling in, parked? 30 A. Clive had it reversed to the back of the carpark, 31 against the carpark from the uni. 32 33 Q. Does that mean you had to walk all the way through the 34 carpark to get to Clive's car? 35 A. Correct. 36 37 Q. And is that what you did? 38 A. Yes. 39 40 Q. Where was the car that Mr Fihi was using? 41 A. They were in the carpark where the uni was. 42 43 Q. So they weren't in the same carpark as you? 44 A. No. 45 46 Q. They had to walk a different way to get to their car? 47 A. No, we had to walk through their carpark to get to our


1 car, and there was maybe 50 metres or less between our car 2 and their car. 3 4 Q. Where was their car in relation to yours? 5 A. Basically, behind us on the right. 6 7 Q. I wonder, if I pass you a piece of paper, if you can 8 do a diagram in sketch-form of what I'll call your carpark 9 and the uni carpark. Draw it in fairly large-scale so we 10 won't have any difficulty following it, and if you can 11 indicate with an "X" your car and with an "F", for Fihi, 12 where you say Mr Fihi's car was parked. 13 A. (Witness draws diagram). 14 15 Q. Were there cars on either side of Fihi's car? 16 A. Yes. 17 18 MR AGIUS: I'll just show this to my friend before I ask 19 you to add some more material to it. 20 21 Q. Would you indicate, by a series of boxes to represent 22 the cars, what other cars there were in the vicinity of 23 Fihi's car and what other cars there were in the vicinity 24 of your car? 25 A. Their carpark is obviously for students, so sometimes 26 it's full, sometimes it's empty, sometimes, whatever. 27 I don't recall how many cars there were, but there were 28 cars in that carpark as well. 29 30 Q. Were there cars on either side of his car? 31 A. I don't remember. All I remember is I was able to see 32 him from when we were sitting in Clive's ute. 33 34 Q. Where had you parted company with him? 35 A. With? 36 37 Q. Had you walked back through the uni carpark? 38 A. Yes. 39 40 Q. And at some stage he went to his car? 41 A. Correct. He actually met Lomax that day, 42 Johnny Lomax. 43 44 Q. Whereabouts do you say they met? 45 A. Where I showed you where the "F" is. That was Lomax's 46 car in that carpark. 47


1 Q. So that "F" -- 2 A. Was Lomax's car. 3 4 Q. Where was Mr Lomax when you first saw him? 5 A. He was standing around the car waiting in the carpark. 6 7 Q. Standing around the car? 8 A. By his car, yes. 9 10 Q. On which side? 11 A. Standing in the carpark. I can't remember. 12 13 Q. Well, on the the driver's side, passenger side -- 14 A. I don't recall that. 15 16 Q. -- front or back? 17 A. I do not remember. 18 19 Q. He was just standing there? 20 A. Yes. 21 22 Q. By himself? 23 A. Yes. 24 25 Q. Was the car open or closed? 26 A. I did not pay attention to that. 27 28 Q. What was he doing? 29 A. Just standing there. 30 31 Q. Did he see you? 32 A. Yes, obviously. He knew we were together with Fihi 33 and Clive. 34 35 Q. I'm not asking what he knew. I'm asking did you catch 36 sight of him? Did you -- 37 A. We had to walk next to him, actually, and we said "Hi" 38 to him and kept walking to our car. 39 40 Q. So you kept walking? 41 A. Yes. 42 43 Q. With your back towards him? 44 A. Yes. 45 46 Q. Until you got to the ute? 47 A. Correct.


1 2 Q. And then you got in the ute? 3 A. Sure. 4 5 Q. And when you kept walking, with your back towards him, 6 Fihi stayed at Mr Lomax's car? 7 A. Yes. 8 9 Q. On which side? 10 A. It would have been on this side towards the ute. 11 Towards us, where we were standing by ourselves. 12 13 Q. On the driver's side or the passenger side? 14 A. I wouldn't remember if he would have had it reversed 15 or not, that would make a difference. It was on our side, 16 though. 17 18 Q. Standing at the front or the back of the car? 19 A. It could have been anywhere: in the middle, on the 20 back, on the front. 21 22 Q. And then you went to your car. Which side of your car 23 did you get into; that is, the ute that you were travelling 24 in? 25 A. On the other side, 'cause he had reversed. So, Clive 26 would have been on their side. 27 28 Q. So Clive was on -- 29 A. The driver's side. 30 31 Q. -- the side of the ute which was closest to Lomax's 32 car? 33 A. Correct. 34 35 Q. You got into the passenger side? 36 A. Correct. 37 38 Q. And that utility was facing forwards; that is, 39 Mr Lomax's car would have been behind you and to your 40 right? 41 A. Correct. So I would have been able to see him from 42 the back window, behind Clive. So when I look over, 43 I could see him from behind Clive in the back window. 44 45 Q. What did you see? 46 A. See Fihi handing over something to Lomax. 47


1 Q. But you didn't know what it was? 2 A. No. 3 4 Q. And to this day, from what you saw yourself, you can't 5 tell us what it was? 6 A. Before we left, Fihi told us not to say how much money 7 we've given him on that job to Lomax, if he asks, and Lomax 8 was waiting for him there to collect, so -- 9 10 Q. Go on. 11 A. -- so my assumption is - would be obviously handing 12 him over some cash. 13 14 Q. That's no more than an assumption; isn't that right? 15 A. Correct. 16 17 Q. For all you know, Fihi may have wanted you to think 18 that Lomax was sharing in the money? 19 A. Could be. 20 21 Q. For all you know, Lomax knew nothing about the money? 22 A. He knew that Fihi was getting money, also other 23 organisers, because I've told him. 24 25 Q. When you last gave evidence, and I will just remind 26 you, you've said that you told nobody about the fact that 27 you were paying money to Fihi. 28 A. I was asked to give them evidence of what I got by 29 Jason and Dean many times, and I've never given them 30 anything. 31 32 Q. Who did you tell that you had been paying money to 33 Fihi? 34 A. Lomax knew. 35 36 Q. At page 36 on 13 July, when you gave evidence, you 37 were asked these questions and you gave these answers. 38 I'll give you the context because we actually need to start 39 on page 35. Halfway down the page, you might see it on the 40 screen: 41 42 Q. There were five of you at this cafe? 43 A. No, no, we walked to the cafe, me, 44 Fihi and Clive; the other two waited for us 45 by the site. 46 47 Do you stand by that evidence?


1 A. Sure. 2 3 Q. The other two includes Mr Lomax? 4 A. Yes. There was another guy. I can't remember - I've 5 never recalled his name until today. 6 7 Q. So he waited at the site? 8 A. Yes. 9 10 Q. And you, Clive and Fihi went to this cafe? 11 A. Correct. 12 13 Q. I just want to show him this. (Shown to Counsel 14 Assisting). I want you to look at this photographic map. 15 There's one for Commissioner. Do you see on the left-hand 16 side of this photograph, about halfway down the photograph, 17 there's the typing "Gungahlin Leisure Centre"? 18 A. Correct. 19 20 Q. That was the site, wasn't it? 21 A. Yes. 22 23 Q. Do you see immediately to the right of that there is 24 what appears to be a carpark? 25 A. Yes. 26 27 Q. That's the carpark for that site, isn't it? 28 A. Well, now the job is finished but that was the carpark 29 for the uni and where it looks like a triangle, black, that 30 was the carpark for the site. 31 32 Q. You say the carpark for the site was that black 33 triangle that abuts -- 34 A. I don't know how much of it but, yes, it was in that 35 corner. 36 37 Q. If you go over to the right-hand side of the 38 photograph, about an inch and a half down from the top and 39 about three inches in from the left-hand border of the 40 photograph, do you see the words "Central Cafe Canberra"? 41 A. Yes. 42 43 Q. That was the cafe you went to, wasn't it? 44 A. I don't remember which one. There was quite a few 45 cafes there. 46 47 Q. In any event, the evidence you gave on the last


1 occasion was that Lomax and the other person remained at 2 the site, and that would be where the Gungahlin Leisure 3 Centre is on this photograph? 4 A. Correct. 5 6 Q. You went off to the cafe, or a cafe? 7 A. There's actually a lot more cafes where Subway in that 8 building is, along that whole street. 9 10 Q. Whereabouts on that mark do you say the cafe was that 11 you went to? 12 A. I don't remember. Just from memory it could have been 13 where it says "The Marketplace" on that strip there. 14 15 Q. It was an indoor cafe? 16 A. Sure. A breakfast place, or cafe, or whatever. 17 18 Q. Do you deny that it was the Central Cafe Canberra that 19 is marked on the site? 20 A. Could have been. Maybe. I don't know. 21 22 MR AGIUS: Might I invite my learned friend to tender this 23 photograph? 24 25 MR STOLJAR: Yes, I tender the photograph, Commissioner. 26 27 THE COMMISSIONER: That will be known as Taleb 27 July 28 2015, MFI-1. 29 30 TALEB MFI-1, 27 JULY 2015, PHOTOGRAPH PRODUCED BY THE 31 CFMEU, "CENTRAL CAFE CANBERRA" 32 33 THE COMMISSIONER: Mr Agius, do you want tendered the 34 diagram that Mr Taleb composed at your request? 35 36 MR AGIUS: Yes, I invite that tender as well. 37 38 MR STOLJAR: Yes, Commissioner. 39 40 THE COMMISSIONER: That diagram will be Taleb 27 July 41 2015, MFI-2. 42 43 TALEB MFI-2, 27 JULY 2015, HAND-DRAWN DIAGRAM BY THE 44 WITNESS IN THE WITNESS BOX 45 46 MR AGIUS: Q. Just to return to the evidence you gave on 47 13 July, I had read you the question and answer at lines 26


1 to 28. My learned friend was taking you through your 2 statement and it was said: 3 4 "The other guys left before we made the 5 exchange of money." 6 7 In fact, it was you, Clive and Fihi who left and went to 8 the cafe, and they remained at the site; is that what 9 you're saying today? 10 A. I remember there were five of us. Two stayed back at 11 the carpark. We were at the cafe and exchanged the money. 12 Now, the facts, exactly how it happened, I really didn't 13 try to keep little details about this matter, like, who was 14 there, who -- 15 16 Q. Can I let you read for yourself line 30 to the bottom 17 of that page. I just want you to have the context, or 18 would you prefer me to read it you? 19 A. No, sure, it's all right. I can read it. 20 21 THE COMMISSIONER: Just so that is clear, can we make it 22 plain, as I think may be plain, that Mr Agius is talking 23 about page 35 of the transcript on 13 July 2015, 24 concentrating on the material from line 26 onwards. 25 26 MR AGIUS: Q. I just want to be sure that you have read 27 line 26 to the bottom of that page and when you have done 28 that, if you could indicate. 29 A. Yes, sure. 30 31 Q. Would you go over the page. Do you see my learned 32 friend asked you, speaking of Fihi: 33 34 Q. Did he offer any reason why he didn't 35 want that disclosed? 36 37 Other words - your answer was: 38 39 If we were asked how much the amount that 40 was paid, not to say what it was. 41 42 And then my friend asked you: 43 44 Q. Did he offer any reason why he didn't 45 want that disclosed? 46 A. No. 47


1 The next question: 2 3 Q. Was he talking about the fact that he 4 had been paid or just the specific amount? 5 A. It was just the amount. 6 7 Q. Did you have a conversation with Lomax 8 about the fact that he'd been paid? 9 A. We never really spoke about that kind 10 of stuff. 11 12 And then this question: 13 14 Q. Did you talk to anyone in the Union 15 about these payments, other than to Fihi? 16 17 And your answer was, "No." 18 A. Payments in general. Not just - not every payment, 19 yes, I've never spoke to anyone else. I've indicated some 20 payments. I've never said what it was to other organisers, 21 but I've never said what it is. All I was asked is "bring 22 us proof", blah, blah, blah, "We'll deal with it". 23 24 Q. What you were asked was: 25 26 Did you talk to anyone in the Union about 27 these payments - 28 29 -- these payments -- 30 31 - other than to Fihi? 32 33 And you said, "No." Was that a truthful answer? 34 A. To the way I thought it was asked, yes. 35 36 Q. What did you think you were being asked? 37 A. Maybe about - I don't know. Just the amount of 38 payments, I guess how much was it, no, I've never said it 39 to anyone. 40 41 Q. You weren't asked about how much. You were asked: 42 43 Did you talk to anyone in the Union about 44 these payments, other than to Fihi? 45 46 A. I've indicated that I've made payments, like I said, 47 but I never said how much.


1 2 Q. I'm asking you about what you understood this question 3 to mean. What did you understand, a very simple 4 question -- 5 A. I thought they were meant, like, did I tell anyone how 6 much I paid to anyone, and I've never said it to anyone 7 else, how much was the actual amount that was paid. 8 9 MR AGIUS: Q. Where did you get that from in the 10 question? 11 A. That's what I understood, I guess. 12 13 Q. You maintain, do you, that you told other people in 14 the Union that you had made payments to Fihi, and I just 15 remind you -- 16 A. I've indicated -- 17 18 Q. -- that you're on your oath. 19 A. I've indicated, yes, I've said that to Lomax, that 20 I've made payments to Fihi. I've said it to another 21 organiser after the fact that some issues start happening 22 on one of the jobs that I'm on. I was asked by Dean and 23 Jason when I had a meeting with them, "We've heard this and 24 that. If it's true, bring us the proof that you have and 25 we'll deal with it." I don't trust them, not even one bit, 26 so I never went to them with any proof. 27 28 Q. Let's just be sure what you're saying because this is 29 very important. 30 A. Yes. 31 32 Q. What did you tell Mr Lomax? 33 A. He knew that I was paying Fihi but he didn't know the 34 amount. I never told him. 35 36 Q. What did you tell Mr Lomax? 37 A. When I said to Lomax when we were discussing - 38 I can't remember where and when, he laughed. He always 39 commented to Fihi that I never wanted to deal with them, do 40 any dealings with them like I do with Fihi, so Fihi said, 41 "That's fine, leave it strictly with me and I'll deal with 42 Lomax." 43 44 Q. What were you discussing with Lomax? 45 A. Oh, depends when and where. 46 47 Q. Well, I asked you:


1 2 What did you tell Mr Lomax? 3 4 And your answer was: 5 6 He knew that I was paying Fihi but he 7 didn't know the amount. I never told him. 8 9 And then I said, "Did you tell Mr Lomax?", and your answer, 10 was as recorded: 11 12 When I said to Lomax when we were 13 discussing - I can't remember where and 14 when, he laughed. 15 16 What did you say to Lomax? 17 A. I just don't remember what I said. We were discussing 18 the issues and what's going on and stuff, so -- 19 20 Q. What issues? 21 A. With payments and memberships and the whole lot. 22 23 Q. What payments? 24 A. Payments to the Union for memberships or what not. 25 26 Q. Lawful payments? 27 A. Not lawful, no. 28 29 Q. I am asking you to give the Commission the substance 30 of what you were talking about -- 31 A. I don't remember. 32 33 Q. -- with Mr Lomax? 34 A. I don't recall it. I don't remember the exact words, 35 no. 36 37 Q. I'm not asking you for the exact words, I said the 38 substance. 39 A. The substance is I've told - we discussed it before, 40 "How much and what did you pay?" And I said, "Yeah, I pay 41 Fihi some money on some jobs", or whatever. He laughed, 42 looked at me in a weird way, and he smiled and never asked 43 - like, never wanted to tell him how much. 44 45 Q. So you told him you paid Fihi on some jobs? 46 A. Yes. 47


1 Q. You never told him how much? 2 A. No. 3 4 Q. Did you tell him what for? 5 A. He knew what it was for. We discussed -- 6 7 Q. I am not asking you what he knew. I'm asking you what 8 you said. Did you say to him -- 9 A. I don't remember what I said. 10 11 Q. -- what you had paid him for? 12 A. I never - I don't remember what I said to him, no. 13 14 Q. So you just said, "I paid Fihi some money" -- 15 A. I don't remember how and when -- 16 17 Q. -- "on some jobs"? 18 A. Yes, correct, I did say that to him. 19 20 Q. Did you say or did you not say what you'd paid him 21 money for, to Mr Lomax? 22 A. Mr Lomax - we've discussed few, on few occasions 23 money. He kind of prepared me before about, "Oh, these 24 companies pay this much; these companies pay that much." 25 I even had a recording of him telling me what other company 26 paid Dean Hall and I made that comment once before to 27 Jason. He called me back. "How do I know this is true?" 28 And I played that recording for him over the phone. 29 30 Q. Where is that recording now? 31 A. I - I don't know. 32 33 Q. What do you mean you don't know? 34 A. It could be somewhere, I'm not sure. It's on a tape 35 recorder somewhere I could not find. 36 37 Q. Let's get back to conversations between you and 38 Mr Lomax about you paying Fihi money. On how many 39 occasions do you say you spoke -- 40 A. I don't remember. 41 42 Q. -- to Mr Lomax? 43 A. More than once. 44 45 Q. Let me finish the question, please -- 46 A. Sure. 47


1 Q. -- otherwise your answer won't make sense. On how 2 many occasions did you speak to Mr Lomax about Fihi paying 3 you money? 4 A. Me paying Fihi money you mean? 5 6 Q. Sorry, about you paying Fihi money. 7 A. I don't remember; it would have been more than once. 8 9 Q. Before or after you received this $15,000 from Fihi at 10 the cafe? 11 A. It would have been after but before he was telling me 12 about other companies, what they make, to make it sound 13 like this is okay to do. 14 15 Q. What did he tell you that other companies were doing? 16 A. Paying money for jobs, that's the only way they could 17 get jobs, and "I'm there for you. Make it easy for me. 18 They push me to do this, this and that. Give me 19 memberships. Give me payments." 20 21 Q. Payments for what? 22 A. For members to be Union members. 23 24 Q. You were paying Fihi you say bribes of some kind, 25 weren't you? 26 A. I'll have to pay him to get a job and the minute that 27 I didn't pay him, I lost the jobs. 28 29 Q. You were paying Fihi bribes. That's what you 30 understand the 15 -- 31 A. No. 32 33 MR STOLJAR: I object to this, in the sense of only this: 34 "bribes" has a certain legal connotation. If my friend 35 wants to ask about what actually occurred -- 36 37 MR AGIUS: I'll withdraw that question. 38 39 Q. You were paying Fihi because you wanted favours from 40 him? 41 A. I didn't want favours. They approached me and they 42 said in order to get jobs, I need to pay. 43 44 Q. Look, this story that you are telling today about 45 conversations with Lomax, about having paid Fihi money, is 46 untrue, isn't it? 47 A. No, it is true.


1 2 Q. Mr Stoljar asked you on 13 July, page 36, line 10: 3 4 Q. Did you have a conversation with 5 Mr Lomax about the fact that he'd been 6 paid? 7 8 And your answer was: 9 10 A. We never really spoke about that kind 11 of stuff. 12 13 A. Correct. 14 15 Q. So what you were saying to Mr Stoljar and this 16 Commission was that you didn't discuss the payment of money 17 with Mr Lomax? 18 A. Usually I don't, no. 19 20 Q. Well, how can you justify the answer you gave on the 21 last occasion: 22 23 We never really spoke about that kind of 24 stuff. 25 26 Alongside the evidence you have given today about many 27 conversations with Mr Lomax about paying money? 28 A. Lomax, we only discussed that once. Before, like I 29 said, he was talking in general about other people, not me 30 to Fihi. 31 32 Q. So, does that mean you never discussed with Mr Lomax 33 the fact that you had paid money to Mr Fihi? 34 A. No, I have discussed it once with him. 35 36 Q. Why did you give the answer, "We never really spoke 37 about that kind of stuff"? 38 A. We usually don't, but at one point we discussed it - 39 not at that stage. We discussed that, me and Lomax. Don't 40 remember when and how, but we have discussed it before. 41 42 Q. Why didn't you give that evidence then on -- 43 A. 'Cause I didn't recall it then. 44 45 Q. -- 13 July? 46 A. I did not recall it then. Things - when this came out 47 and then other people start talking to me, just start


1 bringing memories to me and -- 2 3 Q. You were asked a specific question about Mr Lomax, 4 about his being there on that day, about being warned not 5 to answer Mr Lomax if he asked how much money. This part 6 of the examination was all about Mr Lomax, and then you 7 were asked: 8 9 Did you ever have a conversation with 10 Mr Lomax about the fact that he'd been 11 paid? 12 13 This is speaking about Fihi. And you said: 14 15 We never really spoke about that kind of 16 stuff. 17 18 How could you forget, having been directed to Mr Lomax in 19 particular -- 20 A. Maybe at the time I thought they were asking about 21 that specific time. I didn't - when Lomax knew it was not 22 long ago when he picked up a cheque from me for some 23 employees, that he was pushing me to pay memberships for. 24 25 Q. That was membership? 26 A. Yes, but -- 27 28 Q. And that was a cheque made out to the Union? 29 A. Correct. 30 31 Q. This is a payment of $15,000 in cash to Mr Fihi. Do 32 you see a distinction? 33 A. Yes, but at that stage we had problems with EBA and 34 stuff. We were discussing a whole bunch of issues later 35 on, not anywhere near the time that we were talking about 36 that kind of stuff. 37 38 Q. Not just in relation to the event at the cafe. Your 39 answer was, "We never really spoke about that kind of 40 stuff." You gave a general answer to a question about 41 Mr Lomax. I suggest to you that the reason why you gave 42 that answer is because, in truth, you and Mr Lomax had 43 never ever discussed the fact that you had paid money to 44 Mr Fihi? 45 A. No, that's not true. 46 47 Q. What reason do you give for not having said anything


1 about the discussions you had with Mr Lomax on 13 July? 2 A. Because, in my mind, I thought we were talking about 3 that time when that happened. 4 5 Q. You say you told Mr Lomax. On how many occasions 6 would you have discussed your payments of money to Fihi -- 7 A. Just the one time when -- 8 9 Q. -- with Mr Lomax? 10 A. Just the one time. He doesn't know much. He doesn't 11 know on which job, he doesn't know -- 12 13 Q. When was this one time? 14 A. Around the time when he picked up a cheque from me, 15 from the office or somewhere, I can't remember. 16 17 Q. For the Union memberships for three people -- 18 A. Yes, that's one of the times. 19 20 Q. -- that's referred to in your evidence? 21 A. That's one of the times, correct. 22 23 Q. No, no, you just recently said you only discussed it 24 the one time? 25 A. One of the cheques, I meant, that was given to the 26 Union. 27 28 Q. Let's just see what you actually mean. I just want to 29 be sure. I asked you at line 7: 30 31 Q. You say you told Mr Lomax. On how many 32 occasions would you have discussed your 33 payments of money to Fihi -- 34 35 And your answer was: 36 37 Just the one time -- 38 39 My question: 40 41 Q. -- with Mr Lomax? 42 A. Just the one time. He doesn't know 43 much. He doesn't know on which job, he 44 doesn't know -- 45 46 And then I said: 47


1 Q. When was this one time? 2 3 And you said: 4 5 Around the time when he picked up a cheque 6 from me, from the office or somewhere, 7 I can't remember. 8 9 I said: 10 11 Q. For the Union memberships for three 12 people -- 13 A. Yes, that's one of the times. 14 15 Now, how many times did you discuss with Mr Lomax the fact 16 that you had paid money to Mr Fihi? Once, or more than 17 once? 18 A. Once. 19 20 Q. When was that? 21 A. Like I said, the time when he went and picked up a 22 cheque from me. 23 24 Q. Which time? 25 A. I can't recall the time, but he picked up a cheque for 26 three memberships, three members. 27 28 Q. On one occasion only? 29 A. That I spoke to him about that matter, yes. 30 31 Q. On one occasion only that he collected a cheque for 32 three members? 33 A. No, it would have been more than one occasion. 34 Sometimes I dropped it off at their office; sometimes I've 35 seen - I've given it to them in the conference room. I've 36 had about probably six or more cheques for members drawn to 37 the CFMEU. 38 39 Q. That is nothing to do with what I am asking about. 40 You said on an occasion when he picked up a cheque for 41 three members? 42 A. Yes. 43 44 Q. You didn't say anything about on an occasion when you 45 went to the office, or on any other occasion, you said, "On 46 an occasion when he picked up a cheque for three members."? 47 A. It was right around that time because there was a lot


1 of things involved with an EBA and a lot of other problems, 2 and they were saying something about he sent an email to 3 the office saying he had a meeting with my - so there was a 4 lot of problems and issues between Fihi at the time and the 5 CFMEU, and that's when we start talking, like I said, 6 somewhere between the lines, to Lomax desk, "I've done 7 this, this and that", about paying him obviously money, but 8 didn't tell him where or when and how or anything. 9 10 Q. So this was in the office, was it, in the Union 11 office? 12 A. No. 13 14 Q. I'm sorry, I'm just reading back your answer: 15 16 It was right around that time because there 17 was a lot of things involved with an EBA 18 and a lot of other problems, and they were 19 saying something about he sent an email to 20 the office saying he had a meeting with 21 my - so there was a lot of problems and 22 issues between Fihi at the time and the 23 CFMEU, and that's when we start talking, 24 like I said, somewhere between the lines, 25 to Lomax desk, "I've done this, this and 26 that", about paying him obviously money, 27 but didn't tell him where or when and how 28 or anything. 29 30 Why did you mention Lomax's desk? 31 A. I didn't mention Lomax's desk. 32 33 Q. That's in your answer. 34 A. Well, he probably typed it wrong. 35 36 Q. I heard you say it. 37 A. I didn't mean to say his desk anyway. 38 39 Q. You're just making this up as you go along, aren't 40 you? 41 A. No, I'm not making this up. 42 43 Q. You said it was the occasion when you paid a cheque to 44 Lomax for the membership of three members? 45 A. Correct. 46 47 Q. Where physically were you when you gave him that


1 cheque? 2 A. I'd have to look at my messages. He kept calling, 3 asking me about it, texting me, giving me names, telling me 4 that, "I'll stop by and pick it up from the office", 5 saying, "No, I'll do it another day, we'll meet somewhere." 6 I don't really recall it 100 per cent. I'm just saying it 7 was around that time, I was really busy. He's trying to 8 get hold of me. I told him at once that I'll leave it for 9 him in my office and he'll pick it up, and then I don't 10 really recall 100 per cent how it happened, but, finally, 11 he got the cheque. 12 13 Q. You said it was the time you gave him the cheque. Did 14 you give him the cheque or not? 15 A. Yes, and obviously it was cashed, but I just don't 16 remember exactly when and where. There was too many things 17 going on at the time. 18 19 Q. But it was on that occasion when you gave him the 20 cheque -- 21 A. Yes, because that's when we caught up -- 22 23 Q. -- for membership for three Union members? 24 A. Correct. 25 26 Q. And what did you say to him about payments? 27 A. He was asking me about what happened because, like I 28 said, there was a big issue raised about my EBA. I've went 29 to the office, discussed it with Dean Hall and Jason. 30 Dean Hall tried to be like, "Oh, well, you'll get in 31 trouble if you go in front of the Commission saying you 32 signed a stat dec saying we had the meetings", because I 33 told them, "You've never invited me to any meetings" -- 34 35 Q. Can you address my questions please. I don't want a 36 long answer which doesn't answer the question. My question 37 was: what did you say to him, that is Mr Lomax, about the 38 payments; that is, the payments you made to Fihi? 39 A. We were just talking on and on about what was going 40 on. I replied back to Lomax about the recordings, what he 41 said to me before about Dean and Jason getting money off 42 these other subbies. Lomax looked at me and left, "Please, 43 I never said that to you, don't say anything." I said, 44 "I have the recording still". He goes, "Don't even go 45 there, I never said anything. Don't get me in trouble." 46 47


1 Q. Is that all you said to Mr Lomax about your having 2 made payments to Fihi? 3 A. No. I told him I've made payments to Fihi, like that, 4 basically, but I never told him how or where or when. 5 6 Q. You used those words, "I've made payments to Fihi"? 7 A. Yes. 8 9 Q. And he never asked you any questions? 10 A. No. 11 12 Q. Did you tell him what the payments were for? 13 A. No. 14 15 Q. Did you tell him that they were payments for Union 16 membership? 17 A. No. No. 18 19 Q. Did you tell him that they were payments so that you 20 could get jobs on work - you could get work on various 21 sites, I should say? 22 A. I was complaining to him, "This is not fair to not get 23 any job unless we pay some money." Like I said, I don't 24 recall the exact every word what we said. We were just 25 talking in general about what was going on. 26 27 Q. Why didn't you tell this Commission on 13 July that 28 you had said to Mr Lomax that you'd paid some money to 29 Fihi? 30 A. Because I didn't remember that meeting at that time 31 with Lomax. 32 33 Q. You just forgot it? 34 A. Just never got brought up. 35 36 Q. I suggest to you, you never said anything to 37 Mr Lomax -- 38 A. No, that's not true -- 39 40 Q. -- about having paid Fihi-- 41 A. There was a lot of evidence that came forward that was 42 never brought up here, so it was just one of those things. 43 44 MR AGIUS: I see the time. I have quite a lot, given some 45 of the answers we've had today. 46 47 THE COMMISSIONER: Should the hearing resume at five past


1 two? 2 3 MR AGIUS: May it please you, Commissioner. 4 5 THE COMMISSIONER: The hearing will resume at five past 2. 6 7 LUNCHEON ADJOURNMENT 8 9 THE COMMISSIONER: Yes, Mr Agius? 10 11 MR AGIUS: Q. Mr Taleb, you have agreed I think that you 12 never told the Royal Commission, when you were giving 13 evidence on 13 July, anything about a conversation with 14 Lomax in which you say you told him about having paid money 15 to Fihi. Not only did you not say it during the course of 16 your evidence, but it doesn't appear anywhere in your 17 statement either. Are you aware of that? 18 A. Yes. 19 20 Q. When did you become aware that there was nothing in 21 your statement about having spoken to Mr Lomax about your 22 payments to Mr Fihi? 23 A. I never told Mr Lomax about payments in general. We 24 were talking - I mean, in details; we were talking in 25 general. 26 27 Q. What does that mean? 28 A. Basically, that I made payments but I didn't tell him 29 on which jobs and what not. 30 31 Q. You've said that a number of times. You didn't tell 32 him how much and you didn't tell him upon which jobs? 33 A. Correct. 34 35 Q. Did you tell him what the payments were for? 36 A. I don't recall the exact words that were said. 37 38 Q. What did you say? 39 A. We were talking in general. I tried to tell you the 40 story before, you weren't interested in listening, so -- 41 42 Q. What did you say to him about having made payments to 43 Mr Fihi? 44 A. I said that I made payments to Fihi, basically, that's 45 it. He understood it however he wanted to understand it. 46 I don't remember the exact words. I don't want to say 47 anything that I just don't remember.


1 2 Q. You could have been referring to, so far as he was 3 concerned, payments for Union membership? 4 A. No, no, we weren't talking about that. 5 6 Q. You see, you've said nothing about a conversation with 7 Mr Lomax concerning your having made payments to Fihi, in 8 your statement, you agree with that? 9 A. Yes. 10 11 Q. Your statement is dated 25 July I think of this year? 12 A. Yes. 13 14 THE COMMISSIONER: The 12th. 15 16 THE WITNESS: The 12th, 13th. 17 18 MR AGIUS: Q. I am sorry, 12 July this year. How long 19 did it take to put this statement together? 20 A. A while, I guess, I'm not sure. 21 22 Q. I am sorry, I can't hear you. 23 A. A while. I can't remember. 24 25 Q. How long is "a while"? 26 A. I don't know. 27 28 Q. Hours? 29 A. Yes, hours, obviously. 30 31 Q. More than one session? 32 A. I don't recall that exactly, no. 33 34 Q. How did it come about that the statement came into 35 being? What was the process? 36 A. I was doing that on numerous times. I can't remember 37 exactly every little move or process that happened. 38 39 Q. How did it begin? Did someone contact you and ask you 40 if you'd make a statement or did you come forward and offer 41 to make a statement? 42 A. I don't remember at this stage how it started off. 43 44 Q. For the purpose of making this statement were you 45 interviewed? 46 A. Yes. 47


1 Q. By one or more than one person? 2 A. It happened on different occasions; most likely it was 3 more than one person. 4 5 Q. More than one person on each occasion? 6 A. Yes. 7 8 Q. Two people? 9 A. Could have been, yes. 10 11 Q. More than two? 12 A. Mmm. At some point, yes, three people. 13 14 Q. And how many meetings? 15 A. A few. I don't remember how many. 16 17 Q. What's "a few"? 18 A. Don't know, just a few times. 19 20 Q. More than six? 21 A. Could have been, yes. 22 23 Q. Could have been more than six? 24 A. Sure. 25 26 Q. Over how many days? 27 A. Some time, don't know, few weeks, a month, I don't 28 know. 29 30 Q. Was your statement taken in sections? Was it taken so 31 that the first part of your statement was taken first and 32 then you came back and a little more was added to it and 33 then you came back and a little more was added to it? Was 34 that the method? 35 A. I think so. I don't remember. Yes. 36 37 Q. At the end of each session did you get to read over 38 what had been discussed during the session? Did you get to 39 read over your statement? 40 A. Not over my statement, I don't think so, no. I was 41 just saying what happened, so -- 42 43 Q. And while you were talking about what happened, people 44 were typing? 45 A. A lot of times I had to go back through messages to 46 remember dates and times and facts, or emails or whatever. 47


1 Q. What you said was being recorded? 2 A. Yes. 3 4 Q. And that's how your statement came together? 5 A. Sure. 6 7 Q. You were asked questions, you answered them and your 8 answers were put down in statement form? 9 A. Correct. 10 11 Q. Before you signed it, did you read it over? 12 A. Yes. 13 14 Q. Why didn't you say anything to the people who were 15 taking your statement that you had told Mr Lomax about your 16 payments, the fact of your payments to Fihi? 17 A. There was too many things said and too many things 18 done. I just don't recall that fact and when I said I did 19 not say to him at that point, I was thinking on that day 20 for that particular time or job that I've never said 21 anything to him. 22 23 Q. I am not asking you about your answers to Mr Stoljar's 24 questions. I am asking you about all the answers that you 25 gave over all the days and sessions that went to making 26 your statement, why is it that you never said, on any one 27 of those occasions, that you had told Mr Lomax about your 28 payments to Mr Fihi? 29 A. I did mention Lomax before. I don't remember on which 30 occasion or with who, but I don't know how, it just got 31 missed; just never thought about it. 32 33 Q. What do you mean you mentioned Lomax before? 34 A. In different occasion, obviously not the fact that I 35 told him about that I paid Fihi, but it just never got 36 mentioned, never thought about it. 37 38 Q. That might be because it never happened? 39 A. No, it did happen, that's why I'm saying it's 40 happened. 41 42 Q. Do you recall now that you never said anything to the 43 people who took your statement about your speaking to 44 Mr Lomax concerning the payments you made to Fihi? Do you 45 say you never said anything to whoever it was took your 46 statement about that, or do you say you did say something 47 about that and it's just not in your statement?


1 A. I don't recall the exact facts or whatever. We did 2 mention Lomax before. I don't remember how it went. 3 I just don't remember why it wasn't in my statement that 4 I told him, that's all. 5 6 Q. You mentioned Lomax quite a few times in your 7 statement? 8 A. Yes. 9 10 Q. But not once did you say anything about your having 11 spoken to him about payments to Fihi? 12 A. Probably didn't, no. 13 14 Q. You just forgot that one bit, did you? 15 A. No, just -- 16 17 Q. Do you say you told anybody else? Earlier in answers 18 to my question you intimated that you had told others? 19 A. Correct. 20 21 Q. In fact, I know this is only a draft statement but it 22 appears that you have said, in the course of your evidence 23 earlier today, that you discussed it with Dean Hall and 24 Jason? 25 A. Not that in particular. I told them that I had some 26 issues and things with Fihi that they knew about and they 27 asked me for evidence, not as me paying him in specific. 28 29 Q. You never said anything about payments? 30 A. No. 31 32 Q. You said you had issues with Fihi? 33 A. Yes, and I don't remember between lines exactly what 34 I said, but we did talk about some issues, things that Fihi 35 made me do on-site, or whatever it was, they ask for 36 evidence and I never gave it to them, but I did not say 37 payments as such. 38 39 Q. Let's be absolutely clear about this. 40 A. Yes. 41 42 Q. You did not say anything to either Jason O'Mara or 43 Dean Hall about the fact that you had made payments of 44 money to Fihi? 45 A. Payments of money, no. 46 47 Q. Payments of any kind?


1 A. Yes, I have. 2 3 Q. What did you say? 4 A. I've made - like I said, I've not put it in between 5 the lines that it was payments made to Fihi or anyone else. 6 I said I had to do stuff to get by. I've said it to Jason. 7 I was taping that conversation that day, couple of times 8 I had taped conversations. I did say it to them, but I did 9 not mention payments to Fihi. I was just talking in 10 general. 11 12 Q. When you say you mentioned it a couple of times, do 13 you mean a couple of times in the same conversation or do 14 you mean on different occasions? 15 A. No, different occasions. One time I met with 16 Jason O'Mara at Dickson next to the shop. 17 18 Q. When was that? 19 A. Don't recall. Would have been within a year, last 20 year or something. 21 22 Q. In 2014? 23 A. It could be. I've got it on my message, if you want 24 me to give you an exact date, on my phone, and either 25 before or after that it was in their office with Dean Hall 26 and a few other people present. 27 28 Q. Let's deal with the first occasion. What date do you 29 say that was? 30 A. Around January 21. 31 32 Q. Of what year? 33 A. This year. 34 35 Q. Of 2015? 36 A. 2015, yes. 37 38 Q. This is not referred to in your statement? 39 A. No. Like I said, there was a lot of things that 40 I never said probably in my statement and I forgot about 41 it. 42 43 Q. Where was this conversation with Mr O'Mara? Was it in 44 person? 45 A. Yes. 46 47 Q. Where about?


1 A. Dickson, somewhere next to Dickson shops. 2 3 Q. You just referred, in the course of answering my 4 questions, to your telephone? 5 A. Mmm-hmm. 6 7 Q. What were you doing then? 8 A. I was just looking at the time from when Jason sent me 9 the message to meet up that day. 10 11 Q. What did you look at on your phone? 12 A. See the message where he told him to meet him and 13 looked at the time and date. 14 15 Q. What time and date have you got on your phone? 16 A. It was what I just said, Wednesday, 21 January, in the 17 morning, around 8am. 18 19 Q. Where about - in Dickson, where? 20 A. He said Praga Cafe at nine, but then we didn't meet at 21 the cafe. We were standing next to the building, next to 22 the shops. 23 24 Q. You had this meeting standing next to shops? 25 A. Correct. 26 27 Q. What did you say to him? 28 A. We spoke about lot of different stuff. 29 30 Q. What did you say to him on the topic of making 31 payments to Fihi? 32 A. I did not - you keep asking again. I've never said to 33 him that I made payments to Fihi or anyone. We were just 34 talking in general about some issues, what's going on. We 35 were talking about how they go and try to not promote me or 36 try to tell builders not to use me around Canberra and 37 I gave him couple of facts and couple of builders, or 38 whatever, and then that I've done basically everything they 39 asked me to do from members to whatever and to other 40 topics, to other - we just never really said - I never 41 really told him that I paid Fihi. 42 43 Q. You never really told him. Does that mean you never 44 told him? 45 A. That's right. 46 47 Q. You say you've recorded this conversation?


1 A. Yes. 2 3 Q. Have you still got that recording? 4 A. Yes. 5 6 Q. Where is it? 7 A. Could be on one of the recordings or phones that 8 I have in the safe. 9 10 Q. Have you provided it to the Royal Commission? 11 A. Yes. 12 13 Q. When was the next time you spoke to anybody about 14 payments to Fihi? You've told us about, you say, one 15 occasion with Mr Lomax. Did you ever speak to anybody else 16 ever about your having made payments to Fihi? 17 A. Yes, discussed it with numerous people, like friends 18 or, for example, with Mr Bulum or Clive or whoever. 19 20 Q. What about Union officers or organisers? 21 A. Like I said, I've never told anyone how much, 22 basically, except the one time to Lomax, as he told me 23 before in the past, what other people were paying the 24 Union, and then when he came the one day, laughing about 25 the whole situation about the EBA, and I mentioned 26 something, "Look, I've paid Fihi some money, you know 27 that." He smiled, he goes, like, he put his hands up, 28 like, like I shouldn't be talking about this. 29 30 Q. So this is a different recollection to the one you had 31 before lunch? 32 A. No. 33 34 Q. About this conversation? 35 A. No. 36 37 Q. You don't have a better recollection of it now than 38 you did before lunch today? 39 A. Not really. Like I said, that's why I don't want to 40 say words, I don't remember the exact words that were said. 41 We did discuss that I've made payments; didn't tell him on 42 what or where or how. 43 44 Q. Before lunch you said something about going to the 45 office and discussing something with Dean Hall and Jason? 46 A. Correct. 47


1 Q. When was that? 2 A. I don't remember if it was before or after that 3 meeting with Jason. 4 5 Q. This year? 6 A. It could have been - yes. It could have been probably 7 after. 8 9 Q. After the meeting with Jason in the street? 10 A. I don't remember; to be honest with you, I don't. 11 12 Q. By the way, when you met with Jason in the street did 13 you tell him you were recording the conversation? 14 A. No. 15 16 Q. Why were you making that recording? 17 A. I just made recordings for a long time when - 18 especially when I was getting harassed and everything else 19 with the Union, so I recorded them for, like, a few years. 20 21 Q. Why did you record this conversation with Jason? 22 A. I record almost every conversation I have with any 23 union official. 24 25 Q. Why did you record this conversation with Jason? 26 A. Like I said, I record almost every single one. 27 28 Q. That's not answering why you did it. 29 A. Because I don't trust them. 30 31 Q. That's telling me what you do. Why did you record 32 this conversation? 33 A. Because they always tell me things and they lie about 34 it. I just recorded it just for evidence and stuff, just 35 for my own personal stuff, that's all. 36 37 Q. Prior to providing that recording to the 38 Royal Commission, had you ever given it to the police? 39 A. No. 40 41 Q. Did you ever give it to the -- 42 A. Well, I have given it to the police in the process of 43 the Royal Commission, I guess. 44 45 Q. I said prior to giving it to the Royal Commission -- 46 A. No. 47


1 Q. -- had you given it to the police? 2 A. No. 3 4 Q. Had you given it to anybody? 5 A. No. 6 7 Q. Had you told Mr O'Mara that you had such a recording? 8 A. Yes. Well, it was a different recording, though, 9 something that happened a couple of years before, when 10 Lomax and a couple of other organisers were talking about 11 other trades paying Dean some money. 12 13 Q. That's the recording you can't find? 14 A. It could be in a safe somewhere. I just need to look 15 for it, that's all. 16 17 Q. You haven't given that to the Royal Commission? 18 A. No. 19 20 Q. In a safe where? 21 A. I've got a lot of safes around the office and yard, 22 and this and there. 23 24 Q. You've got a lot of safes? 25 A. Yeah. 26 27 Q. So it could be in any one of a number of safes? 28 A. That's right. 29 30 Q. In Canberra? 31 A. Yes. 32 33 Q. Why do you have a lot of safes? 34 A. Got more in the yard. A lot of - I don't know, it 35 just happens. 36 37 Q. "Got more in the yard. I don't know, it just 38 happens", what does that mean? 39 A. Why do I have - why not have too many safes? I 40 could have as many safes as I want, really. 41 42 Q. I suppose it depends on what you put in them. 43 A. Whatever I put in, that's my concern, it's not yours. 44 45 Q. I suggest to you that Mr Lomax never has any 46 conversation with you about Dean being paid money? 47 A. No, he has.


1 2 Q. In your statement you refer -- 3 A. It was him and Dunmore, actually, at the time. 4 5 Q. In your statement at paragraph 30, you talk about 6 meeting with John Dunmore and Johnny Lomax at Gus' Cafe at 7 Civic, and you say that Lomax did most of the talking, but 8 Dunmore was always backing him up. Is that what you're 9 referring to? 10 A. Yes. Well, it could have been one of the places. 11 There was a lot of meetings at that point with the same two 12 people anyways. 13 14 Q. Would you read paragraph 30 to yourself. 15 A. Okay. 16 17 Q. You know that Mr Dunmore is deceased, don't you? 18 A. Yes, I do. 19 20 Q. So he can't give any evidence to rebut what you say 21 there? 22 A. Correct. 23 24 Q. I put it to you that Mr Lomax was never present on any 25 such occasion? 26 A. No, he was, and, like I said, I've got a recording of 27 it. 28 29 Q. The recording you haven't been able to find which 30 could be in one of your many safes? 31 A. Because I've got better things to do than looking for 32 a recording. 33 34 Q. You say: 35 36 They told me on this occasion that Grace 37 from Pacific had paid Dean Hall a large 38 amount of money. I cannot recall the sum, 39 and said words to the effect of, "Well, 40 look what Pacific paid, you should go to 41 Fihi." 42 43 A. Yes. 44 45 Q. You see, Grace from Pacific, that's a reference to 46 Pacific Formwork, is it not? 47 A. Correct, and I did mention that to Grace recently too.


1 2 Q. That is a business that is run basically by Grace and 3 her husband? 4 A. Correct. 5 6 Q. Grace is a member of the MBA? 7 A. I guess. I don't know. 8 9 Q. And chairs the Subcontractor Committee, did you know 10 that? 11 A. No. 12 13 Q. Do you know she's on the Executive of the MBA? 14 A. No. 15 16 Q. Are you saying that one or both of these Union 17 officers went so far as to tell you that Grace had paid 18 Dean Hall a large sum of money? 19 A. That's what Lomax said that day. 20 21 Q. Yes. I suggest to you that that is simply untrue? 22 A. Well, that's what he said to me, though. Whether it's 23 true or not, I don't know. 24 25 Q. You don't have a recording -- 26 A. I did mention it to Grace and she said, "No", but 27 that's what he told me at that time. 28 29 Q. So you mentioned this to Grace and she said that had 30 never happened? 31 A. Correct. 32 33 Q. When did you speak to Grace about this? 34 A. A couple of months ago we had a meeting together. 35 36 Q. Before you made your statement? 37 A. After. 38 39 Q. Well, that couldn't be a couple of months ago. 40 A. I guess not then. 41 42 Q. I've just put to you that your statement was 15 July. 43 A. No, it would have been before then. 44 45 THE COMMISSIONER: It is 12 July. It does not matter 46 much, but it is the 12th. 47


1 MR AGIUS: Q. Yes, I'm sorry, it's my error, 12 July? 2 A. Then it would have been probably before. There was a 3 meeting between the CFMEU and the formworkers. I can't 4 recall exactly when, and, after that meeting, we went and 5 spoke about a few things. 6 7 Q. So you spoke to Grace? 8 A. Yes. 9 10 Q. And you asked her whether there was any truth in the 11 suggestion that she had paid Dean Hall a large amount of 12 money? 13 A. Correct. 14 15 Q. And she denied it? 16 A. Correct. 17 18 Q. And, after that, you made your statement? 19 A. Because that's what happened. Whether she denied it 20 or not, this is what happened. 21 22 Q. You never put in your statement anything about Grace 23 having denied ever paying Dean Hall a large amount of 24 money? 25 A. That's not for me to say whether I was - actually, 26 I told someone that that had happened. If I was never 27 asked about it, why would I put it in? 28 29 Q. Why wouldn't you tell the Royal Commission, when you 30 were making your statement, that although you'd been told 31 that this person had paid Dean Hall a large amount of 32 money, she had since denied it? 33 A. This statement was prepared a long time ago. We went 34 over it, I don't recall when. Probably would have never 35 got to discuss that point to remember, "Oh, yes, this is 36 what happened." 37 38 Q. Why wouldn't you put in something about Grace to that 39 effect, given that you did remember to put in that you had 40 been told that Grace had paid Dean Hall a large amount of 41 money? 42 A. Because, like I said, when this was prepared, it was 43 way before that meeting with Grace. 44 45 Q. That's quite contrary to what you said in evidence not 46 three minutes ago? 47 A. No. We've prepared it again. We went through it


1 afterwards, but when the evidence - when this was prepared 2 was before the meeting with Grace. 3 4 Q. Well, why then didn't you inform the Royal Commission 5 about the fact that Grace had denied making this payment? 6 A. I don't know if I would have informed the 7 Royal Commission or the police, but I did tell someone 8 about the meeting and what happened and, basically, Grace 9 didn't want to talk. Obviously, didn't want to bring any 10 evidence forward so -- 11 12 Q. What do you mean obviously she didn't want to bring 13 any of it forward? 14 A. We had a discussion before - like, whether you guys 15 want to bring - if you have any evidence or not. They said 16 they were going to and then they decided not to, so -- 17 18 Q. If she'd never paid Dean Hall any money, what would 19 she be bringing forward? 20 A. I don't know. 21 22 Q. See, didn't you think that having said that you had 23 been told that Grace had paid Dean Hall a large amount of 24 money, and having found out that that was not true, that 25 she'd never made that payment, didn't you believe, in 26 Grace's own interests, that you should tell the 27 Royal Commission about that? 28 A. I probably have verbally, yes. Like I said, I don't 29 remember whether it's the Royal Commission, or someone from 30 the Federal Police, but I did say about what happened that 31 day and what she said to me. 32 33 Q. When did you say this? 34 A. That wasn't my job. I wasn't - I'm not a cop to go 35 ask people -- 36 37 Q. When did you tell the Federal Police or the 38 Royal Commission -- 39 A. Probably, definitely when-- 40 41 Q. -- that Grace had denied making this payment? 42 A. Probably right after when we had that meeting 43 together. 44 45 Q. What meeting together? 46 A. With the union and the formworkers. 47


1 Q. So who did you tell? 2 A. I don't remember who specifically I told, but I did 3 say that to someone. 4 5 Q. What were the circumstances? 6 A. Just called them and let them know what happened. 7 8 Q. The meeting with the formworkers, was that a meeting 9 where a number of formworkers attended and discussed the 10 EBA? 11 A. That was when they were trying to, yes, get the 12 subcontractors to either sign an EBA or not. 13 14 Q. That was before 12 July this year? 15 A. Yes, it could have been. 16 17 Q. Yet, you didn't include it in your statement? 18 A. I didn't have to. My statement is to say what I was - 19 what I had witnessed before and what I've seen. Not to 20 write down day by day what I do. 21 22 Q. But you didn't think in fairness to Grace, you should 23 tell the Royal Commission, while you were making your 24 statement, "Oh, by the way, Grace has since told me she 25 never made that payment", you didn't think it would be fair 26 to Grace or that it would be -- 27 A. Because I didn't read that - at that stage, I didn't 28 look at that point, for example, to enter it. I did speak 29 about it, but I didn't enter it in the -- 30 31 Q. You're not suggesting that the Royal Commission knew 32 that Grace had said that she hadn't made this payment from 33 what you told them before you made your statement, are you? 34 A. I don't - like I said, I don't remember who I told, 35 and it's not for me whether she said she did it or not. 36 That's what she said. I'm just saying in my statement 37 I said what happened to me before, and I had the recording 38 with it to prove it. 39 40 Q. What have you got a recording of now? 41 A. A lot of stuff. 42 43 Q. What recording were you just referring to? You've got 44 a recording of that, too, what have you got a recording of? 45 You said, "And I had a recording with it to prove it", what 46 recording are you referring to. 47 A. At the time of Lomax and Dunmore, when they were


1 talking about Grace paying money. 2 3 Q. Do you have a recording of Grace telling you that she 4 never made the payment? 5 A. No. 6 7 Q. Do you have a recording of you telling the 8 Royal Commission or the Australian Federal Police that 9 Grace told you she never made the payment? 10 A. No. 11 12 Q. That conversation about Grace making a payment just 13 never took place, did it? 14 A. Pardon? 15 16 Q. The conversation that you've set out in paragraph 30 17 of your statement just never took place, did it? 18 A. Yes, it did. 19 20 Q. You agree, do you, that when you spoke to Dean Hall 21 and Jason O'Mara and you said you had issues with Fihi, 22 they asked you for the evidence? 23 A. We were talking about issues in general with the 24 CFMEU, not just Fihi, and then -- 25 26 Q. Did you say you had issues with Fihi or not? They're 27 your words. 28 A. Yes, I did, but at the same time we were talking about 29 issues in general with the CFMEU. 30 31 Q. Did they ask you to produce evidence that you had -- 32 A. Yes. 33 34 Q. -- against Fihi? 35 A. Evidence of whatever I had against anyone. 36 37 Q. And what did you say? 38 A. I never gave it to them. 39 40 Q. What did you say when they invited you to produce 41 whatever you had? 42 A. I don't remember exactly what I said, but I just never 43 gave them any evidence. 44 45 Q. What's the best you can do with your memory as to what 46 you said? 47 A. I guess go back to the recording and really listen to


1 everything we spoke about. 2 3 Q. Where's that recording? 4 A. On a phone. 5 6 Q. Where is the recording? 7 A. It's recorded on a phone. 8 9 Q. Yes. It's recorded on a phone. Where's the phone? 10 A. Probably in my office. Definitely in my office. 11 12 Q. Have you provided that recording to the 13 Royal Commission? 14 A. No. 15 16 Q. Why not? 17 A. Just didn't. 18 19 Q. What did they say to you that you should do with the 20 evidence? 21 A. The CFMEU? 22 23 Q. At that meeting with Jason and Dean - Jason O'Mara and 24 Dean Hall, when they asked you for the evidence and you 25 can't remember what you said but you recorded it on a 26 phone, what did they say to you you should do with the 27 evidence? 28 A. At that time Dean was like - basically they thought I 29 was bluffing, that I don't have anything. Later on if you 30 want to hear - well, Jason or Dean, it's like, "If you have 31 any question, this is the only reason, "you should take it 32 to the police". Before then he was never interested in any 33 of this. He wanted proof of it, that I had it. 34 35 Q. Let's just deal with the conversation, not with your 36 speculation about what he was thinking. Were you told that 37 if you had material, you should take it to the police? 38 A. No, not at that time. Never. 39 40 Q. You were never told that? 41 A. Yes. I was only told that after this whole 42 Royal Commission started, and that was the only time I was 43 told that. 44 45 Q. Who told you? 46 A. Could have been - can't remember whether Jason or 47 Dean, but it was one of them. We had a meeting together


1 and one of them said that. 2 3 Q. Whereabouts was that meeting? 4 A. At the CFMEU's office. 5 6 Q. When you say "After this Royal Commission" -- 7 A. When this whole thing started. 8 9 Q. This Royal Commission was public knowledge -- 10 A. It would have been recent. 11 12 Q. -- at the beginning of last year, if not before. 13 A. No, it would have been the last month or two, max. 14 15 Q. So before or after your meeting with Jason and Dean at 16 the office? 17 A. It was that day in the office when we had met. 18 19 Q. We're going around in circles. I just want to be fair 20 to you and I want to get this chronology right. 21 A. Yes. 22 23 Q. You say you had a meeting with Dean Hall -- 24 A. Correct. 25 26 Q. -- and Jason O'Mara in the office of the CFMEU. How 27 long ago was that? This is the meeting that you -- 28 A. In the last two months. I can't remember the exact 29 date, but it was within a month or two, max. 30 31 Q. Was it before you made your statement on 12 July? 32 A. I don't remember that. 33 34 Q. Did you say anything about it to the people who took 35 your statement from you? 36 A. That I had a meeting with Dean Hall? Yes. 37 38 Q. Sorry? 39 A. Yes. 40 41 Q. We don't read about it in your statement? 42 A. Like I said, that statement was prepared long time 43 ago. 44 45 Q. Did you tell the people who were taking your statement 46 from you, whilst they were taking your statement from you, 47 that you had had a meeting with Jason and Dean in the


1 office of the CFMEU which you had recorded when there had 2 been discussions about you having evidence to prove your 3 difficulty with Fihi? 4 A. Actually, that one meeting with - I've never recorded 5 because he knew that every other meeting I had with him was 6 recorded, and he asked me that day, "Are you recording?", 7 and I said, "No". For the first time I was not recording. 8 9 Q. So now you say you didn't record that conversation? 10 A. No, no, that last one I did not record. I recorded 11 everything else. 12 13 Q. When was the last one? 14 A. That I've recorded? 15 16 Q. No, the very last meeting you had -- 17 A. I don't know. I just told you -- 18 19 Q. -- with Jason O'Mara -- 20 A. -- I don't remember. 21 22 Q. -- and Dean Hall in the office of the CFMEU? 23 A. Within the last two months. There was actually Zach 24 present, too, taking notes. I can't remember the date. 25 26 Q. So Zach was present taking notes? 27 A. Yes. 28 29 Q. Did you, during the course of that conversation, say 30 that you had evidence against Fihi? 31 A. Yes. 32 33 Q. And were you asked to produce it? 34 A. At that time, for the first time, Dean Hall was like, 35 "If you do have that, you should take it to the police and 36 give it to the police." 37 38 Q. And did you take it to the police and give it to the 39 police? 40 A. Yes, I did. 41 42 Q. As a result of that conversation? 43 A. No. That was already done months ago. 44 45 Q. You had already done that? 46 A. Yes. 47


1 Q. So what was the point of your conversation with Jason 2 and Dean on this day? Why were you at the office? 3 A. There was other issues. I don't remember exactly what 4 was - I think I've asked to meet him - oh, we're still 5 talking about the fact of them having lodged an EBA that 6 none of my employees had signed, and everything else, and 7 they tried to say it was Fihi's fault for sending an email 8 to them to say he had the meetings when he never did, and 9 he tried to blame it on him. 10 11 Q. So you don't have a recording of this conversation? 12 A. Yes, I do. Not the last one. Everything else before 13 that I have, except the last meeting. 14 15 Q. Let's be absolutely clear. I have only been asking 16 you for the last 10 or 15 questions about the last meeting. 17 A. Okay. I don't have a recording of that, no. 18 19 Q. And I asked you what were the circumstances which led 20 to that meeting. I am speaking only of the last meeting. 21 A. Yes. 22 23 Q. That's the one you say you did not record? 24 A. Correct. 25 26 Q. Let's only think about that meeting, if you would. 27 A. Mmm-hmm. 28 29 Q. What were the circumstances leading to that meeting? 30 A. I've called, asking to meet, I think, because I was 31 getting another investor to come in the company, he wanted 32 to meet with them, and see what the problem is about the 33 EBA and a few other bits and pieces. 34 35 Q. So you wanted to have a discussion with them about 36 that? 37 A. I was trying to set up a meeting with that new 38 investor. 39 40 Q. You did have that meeting with the three Union 41 officers? 42 A. Yes. 43 44 Q. Is this the one that -- 45 A. That was the last meeting. 46 47 Q. Was there a third person as well, Zach Smith?


1 A. Yes. 2 3 Q. Was this the one where he was taking notes? 4 A. Correct. 5 6 Q. And was this also the one where you were invited to 7 give any evidence you had to the police? 8 A. Yes. 9 10 Q. When do you say this last meeting was? 11 A. I don't remember exact date, no. 12 13 Q. Whether it's an exact date or not -- 14 A. I don't remember. It's recently. Like I said, it 15 could have been the last two months, I don't know. 16 17 Q. What was the meeting before that with Mr O'Mara and/or 18 Mr Hall, Dean Hall? 19 A. There were some issues on site. They were forcing me 20 to hire someone from the CFMEU to work for me and -- 21 22 Q. Who was that? 23 A. Dean Hall - well, Lomax went to site basically every 24 morning, it's right next to his house, every morning, go 25 past there, we need to hire this guy. I had a phone call 26 from Dean Hall, "I've got a guy, he's off work, can he get 27 a job?" I said, "Look, the job's just started. When it 28 starts, we'll get him on." Every day Lomax will go past 29 the job site telling all my foremen and everyone on site, 30 "We need to get this guy on." Finally, I got a phone call, 31 "You need to put him on", whatever he does, labouring or 32 what not, later on he could do either your scaffolding, or 33 your rigging, or safety, he's got all these tickets. 34 35 Q. Who made that phone call to you? 36 A. Dean Hall, and I've had a meeting too about it with 37 him, and I got a recording of that as well, too. 38 39 Q. Do you say - I just want you to be absolutely clear 40 about this: you have never said anything to Dean Hall or 41 Jason O'Mara about the fact that you had paid money to 42 Fihi? 43 A. Not in exact words, no. I've never - I've indicated 44 the things that happened. I've never told them I've paid 45 money, in that words, I never told them that. 46 47 Q. Given that you say you started paying money to Fihi as


1 long ago as May 2012, or thereabouts, why, when Fihi asked 2 you to pay him money, didn't you go to the police then? 3 A. Because I was new. I moved here in 2008. Everyone is 4 scared of the Union. People were talking about the likes 5 of Hindmarsh, for example, a big building company. He 6 tried to do something against the Union, they almost 7 bankrupted them. Everyone's scared of the Union. I didn't 8 think it was a good idea to even go to the cops and say 9 anything to them. 10 11 Q. Why didn't you go to the management of the Union and 12 get confirmation that if you paid this money to Fihi, it 13 would actually be for something? 14 A. It just happened to be him. His business card at the 15 time, he was a lead organiser for the CFMEU, he's on site 16 most of the time; he's representing them. I didn't know 17 anybody else at the time. I didn't know anyone else except 18 him. 19 20 Q. You took him to be a representative of the CFMEU? 21 A. He was a lead organiser. 22 23 Q. Yes. But you took these payments to be not for him 24 but for the CFMEU, is that what you're saying? 25 A. Yeah. 26 27 Q. That's rubbish, isn't it? 28 A. No, it's not rubbish. That's the truth. When someone 29 tells you, "You can't have a job unless you pay for it", 30 I've done a couple of little jobs before that, never paid 31 anyone. They find out that I'm pricing another job, they 32 came on, "You pay" or else. I didn't pay for couple of 33 other jobs, I lost them clearly. Vitler would call the 34 builder, "Tell them do not hire them", when I said "no" to 35 Fihi. 36 37 Q. I suggest to you that that is again rubbish? 38 A. No, it's not. 39 40 Q. I suggest to you that you knew from very early in the 41 piece that any money you were paying to Fihi was not going 42 to the Union but was actually -- 43 A. I said no. 44 45 Q. -- going to Fihi? 46 A. No, I didn't know that. 47


1 Q. I suggest to you that there were many indicators of 2 that? 3 A. I never knew where it was going. 4 5 Q. I suggest that that is one of the reasons why you 6 never told anybody in management at the CFMEU that you had 7 been paying money to Fihi, because you knew that the money 8 wasn't going to the Union? 9 A. I never knew anything. I tried to make sense of it. 10 I never knew who was getting money out of who, or what's 11 going on. 12 13 Q. So you never knew one way or the other what Fihi was 14 doing with the money? 15 A. Correct. I just paid him the money. I didn't know 16 how much or what he gives them or he gives them anything, 17 I just didn't know. That was it. 18 19 Q. I thought you said that at one stage he asked you for 20 money because he was going to Tonga and he needed the money 21 by a certain time? 22 A. Correct. 23 24 Q. Didn't that indicate to you that the money was for 25 him? 26 A. Could have been, and I said that in my statement, 27 I didn't know it was for him or someone else. But, again, 28 I said in my statement too it was funny when I delayed 29 payments and other Union official shows up on site, till 30 I call him, and they leave, so I don't understand what 31 would he tell, for example, Jason or Dean when they went to 32 Yarralumla why to leave. 33 34 Q. All the more reason why, don't you think, you ought to 35 have raised with Jason or Dean the fact that you were 36 paying one of his organisers tens of thousands of dollars? 37 A. Sorry? 38 39 Q. Isn't that all the more reason why you should have 40 spoken to Jason or Dean and told them that you were paying 41 one of their organisers tens of thousands of dollars? 42 A. Jason and Dean never really wanted to discuss stuff 43 like this with me. Like I said, when I first started, I 44 was recording John Dunmore and Lomax. 45 46 Q. This is the recording that you keep referring to -- 47 A. The first reading, yes.


1 2 Q. -- which you have not produced? 3 A. Correct. That day I spoke to Jason, or someone in the 4 office, I can't remember whether it was Jason or Dean, but 5 I was in that office. I did mention about the recording. 6 As soon as I got back, he called me, "How do I know that 7 you have a recording, you're not bluffing?" So I remember 8 plugging that tape-recording into the laptop and played it 9 over the phone with him. Then he calls Fihi and he goes, 10 "Go sort out the problem with Elias." 11 12 Q. Let's get back to my question. You could have at any 13 time gone to Dean Hall or Jason O'Mara and said, "I'm 14 paying tens of thousands of dollars to Mr Fihi and I'm 15 being threatened by him" -- 16 A. Yes. 17 18 Q. -- yet you chose not to? 19 A. Because I knew they were, or I thought from what Lomax 20 and Dunmore said, that they were getting the same thing 21 from other companies, so, basically, why would I be telling 22 them anything like -- 23 24 Q. I suggest to you that you were never told that the 25 CFMEU was getting the same thing from other companies? 26 A. Yes, I did, and I had a recording of it. 27 28 Q. You don't know that you have a recording of it? 29 A. Yes, I do. 30 31 Q. Where is it? 32 A. And I've spoken - I've spoken to Dean - oh, sorry, to 33 Jason O'Mara that day and he listened to -- 34 35 Q. Where is the recording? 36 A. It's on a tape recorder. 37 38 Q. Where is it? Is this the one that is in one of your 39 many safes? 40 A. Yes. 41 42 Q. And no doubt you will produce it -- 43 A. Yes. 44 45 Q. -- to the Royal Commission -- 46 A. Yes. 47


1 Q. -- so we can all hear what you said and what was said 2 to you? 3 A. If you like. 4 5 Q. And you haven't been asked to produce it before now? 6 A. Yes. Yes, I have. 7 8 Q. When were you asked? 9 A. A couple of times. I've just -- 10 11 Q. When was the first time you were asked to produce 12 this? 13 A. When I said something about it. 14 15 Q. When? 16 A. Don't know. When I was doing the statement. 17 18 Q. So, before or on 12 July this year? 19 A. Could have been, I don't know, before or after. 20 21 Q. You said -- 22 A. When I was doing the statement. 23 24 Q. -- when you were doing the statement. 25 A. Yes. 26 27 Q. When was it? 28 A. I guess 12 July, or before. 29 30 Q. And you'd had since 12 July until today -- 31 A. Yes. 32 33 Q. -- and you haven't produced the tape? 34 A. That's right. 35 36 Q. You haven't looked for it? 37 A. No. 38 39 Q. Why not? 40 A. Because I've got a million other things to do. 41 42 Q. Have you been given a summons to produce it? 43 A. No. 44 45 Q. So, the Royal Commission has never given you a summons 46 to produce this recording? 47 A. They said to give them whatever recordings I had.


1 I just looked once for this specific tape-record, 2 I couldn't find it. I just need to look hard. I know 3 I have - I had it somewhere so I don't lose it. I looked 4 for it, I told them I couldn't find it at the time, and 5 never looked again. 6 7 Q. Have you been given a summons to produce all the 8 recordings you've got? 9 A. What I had, yes. 10 11 Q. So, this tape would be caught by that summons; is that 12 right? 13 A. Could be. 14 15 Q. So you agree -- 16 A. I did tell them that I couldn't find it though. 17 18 Q. And you said you couldn't find it? 19 A. At the time, yes, and I never looked -- 20 21 Q. Does that mean you had looked for it and you could not 22 find it? 23 A. The one there, yes, I did look for it. 24 25 Q. I thought you said earlier you were too busy to go 26 looking for it? 27 A. I said I looked for it once and I never found it. 28 That was before or around the time that I made the 29 statement. After that I never looked for it. 30 31 Q. When were you supposed to produce all of these tapes 32 to the Royal Commission? What's the date on the summons 33 for production? 34 A. I don't know. I don't recall the date. 35 36 Q. No idea? 37 A. No. 38 39 Q. Did you tell the Royal Commission that you'd look for 40 it and you couldn't find it? 41 A. Yes. 42 43 Q. Did you -- 44 A. I don't think I was summonsed to give them - I was 45 asked to give them whatever proof and evidence or whatever 46 I had, but I was not summonsed to actually get that 47 recording.


1 2 Q. So you never got a notice from the Royal Commission 3 requiring you to hand over all of your tapes? 4 A. I don't remember if they did or not. 5 6 Q. You did record Fihi, though, didn't you? 7 A. Yes. 8 9 Q. And you recorded him, what, on a handheld recorder? 10 A. On a phone. 11 12 Q. Yes. You were speaking to him on the phone, but how 13 did you make -- 14 A. Oh, on the phone. I just used one of my other phones 15 to record. 16 17 Q. Had you spoken to the police or to the 18 Royal Commission before you made that recording? 19 A. Once, yes. 20 21 Q. Were you given instructions on what you should say 22 during the course of that conversation? 23 A. No. 24 25 Q. Did you provide that recording to the police or the 26 Royal Commission? 27 A. The one time, yes. 28 29 Q. But you haven't been able to provide them with this 30 recording, the one where you say -- 31 A. I provided them with a lot of -- 32 33 Q. -- Mr Lomax told you that Dean Hall had been given 34 money by -- 35 A. Because that -- 36 37 Q. -- Grace? 38 A. Because that was on a tape-recorder that I had since 39 2010 or '11, or something, I can't remember. 40 41 Q. What kind of recorder is it? 42 A. It's just a small tape-recorder. 43 44 Q. What kind of small tape-recorder? 45 A. I don't know. Olympus could be the brand. It's a 46 silver small tape-recorder with a USB on the bottom. 47


1 Q. Was it a digital recording or an analogue recording? 2 A. I don't know. It's just a silver one. A little one 3 like that. 4 5 Q. Do you know the difference between digital and 6 analogue in terms of recording? 7 A. No. 8 9 Q. Did it have tape in it? 10 A. No, no. 11 12 Q. Or was it -- 13 A. It was just on a USB. It had a memory. 14 15 Q. -- just a digital recorder that you use a USB to 16 download? 17 A. Correct. 18 19 20 Q. What brand? 21 A. By memory, Olympus or something, I can't remember. 22 23 Q. By memory what? 24 A. Olympus or - I can't. I don't know. I don't recall 25 it. 26 27 Q. And what is it that you can't find now, the actual 28 recorder -- 29 A. Yes. 30 31 Q. -- or a USB that you've downloaded this conversation 32 on? 33 A. No, no, the recorder. 34 35 Q. When did you last see that recorder? 36 A. A couple of years ago. I've moved offices a couple of 37 times in the last few years and, in the process, I put it 38 somewhere and I can't remember where. 39 40 Q. When did you last use that recording? 41 A. Around the time that I've recorded Lomax and them. 42 Afterwards, I start using my phone. 43 44 Q. There are a number of matters I need to put to you. 45 If we could bring up paragraph 63 on page 9 of the 46 witness's statement. You record there a text message that 47 you sent to Dean Hall at 4.29pm?


1 A. Yes. 2 3 Q. That's the day that you and Mr Hall had a conversation 4 about what he was doing on the Yarralumla site, isn't it? 5 A. Correct. 6 7 Q. He had hung up on you during the course of that 8 conversation, had he not? 9 A. Correct. 10 11 Q. You had brought up the topic of the EBA, and he was 12 angry with you because he was trying to make you understand 13 that this wasn't about the EBA, it was about the 14 disgraceful state of safety on that site? 15 A. No, that's wrong. 16 17 Q. And he then hung up on you? 18 A. No, he did hang up on me, and all he was asking was 19 how many members I have and to go sign the EBA. Therefore, 20 I've sent the message back to him when he hung up. 21 22 Q. Do you say he hung up on you or not? 23 A. Yes, he did. 24 25 Q. So you were mid-conversation and he just hung up the 26 phone? 27 A. Yes, 'cause we were start talking. He's telling me 28 I had to sign the EBA. We kept arguing. I said, "Before 29 I sign it, we need to sort out other problems with 30 companies paying the right money", so he start raising his 31 voice, I start raising mine, and then he hung up the phone. 32 So I sent him that message right away: "Before you hang 33 up, sort out the problem." I said, "I won't sign it until 34 you fix that problem." 35 36 Q. I suggest you brought up the topic of the EBA -- 37 A. Doesn't matter who brought it up. 38 39 Q. -- and he kept saying - well, it does matter who 40 brought it up. 41 A. He was talking about how many members I have, how many 42 members, their financials, and to sign the EBA. It wasn't 43 about safety. If it was about safety, he should have never 44 left that site if it was a disgraceful site. 45 46 Q. Do you mean that he was at that site; he took all of 47 those photographs of the safety issues --


1 A. And he left. 2 3 Q. -- he spoke to you on the phone, and he never spoke to 4 you about safety, is that what you're asking this 5 Commission to accept? 6 A. No, no, no. He did not speak to me about safety. 7 That was not my issue. He would have spoke about safety 8 with the builder or whoever is responsible for that job. I 9 was a subcontractor. 10 11 Q. Do you think that as a subcontractor you have no 12 responsibility for safety on the site? 13 A. Yes, yes, whether I do or not, all he was talking 14 about is memberships and EBAs. That's why I replied back 15 that minute to him, to his phone, discussing that. So if 16 it was not the issue, he should have called me back, for 17 example. 18 19 Q. Can I just put this question to you and get a "yes" or 20 "no" answer. 21 A. Sure. 22 23 Q. Did he discuss the deplorable state of safety on that 24 Yarralumla site during this telephone call? 25 A. Don't remember. We were arguing about members and he 26 might have, he might have not, I don't remember. All 27 I remember is we were arguing the fact how many members 28 I have and when I'm going to sign the EBA. They'd already 29 had two other EBAs signed by then anyways. 30 31 Q. When you were late with payments and you say that as a 32 consequence of that, Dean Hall would show up on site - and 33 you give the example of Yarralumla and Denham under a guise 34 - wouldn't have been a perfect opportunity for you to say 35 to Dean Hall, "Look, I'm making all these payments to Fihi 36 and you're still coming to sites that I'm on and disrupting 37 them"? Wouldn't that have been a perfect opportunity for 38 you to raise the fact that you were not getting value for 39 your payments if you believed the payments were going to 40 the Union? 41 A. I didn't see it was an issue for me to say that then. 42 43 Q. You didn't see any relationship between the fact that 44 you were making payments and the CFMEU were coming on site 45 when you were late with your payments? 46 A. Okay. Well, you asked how - put yourself in my shoes. 47 If I delayed payment --


1 2 Q. I can't do, I'd afraid, and you need to answer my 3 questions. 4 A. I don't know. I've never said it. I just happened to 5 be late on a payment and then he shows up on site and then 6 talking about EBA and memberships, and then I called Fihi, 7 which I had a recording of it and I sent him a message, and 8 next thing you know he leaves. If - if -- 9 10 Q. So you never spoke to Dean Hall about it -- 11 A. No. 12 13 Q. -- and you never complained that you were not getting 14 value for the money you were giving Fihi? 15 A. No. 16 17 Q. And I suggest to you that's because you knew that 18 Fihi, if he was getting any money from you, it was for him? 19 A. I don't know that. Why would Dean Hall leave the site 20 when it was so bad? 21 22 Q. We'll hear Mr Hall's evidence about that in due 23 course. 24 A. Okay. 25 26 MR AGIUS: There is one more exercise I need to go 27 through, Mr Commissioner, and I have misplaced my copy of 28 the evidence from 12 or 13 July. 29 30 THE COMMISSIONER: This is the transcript? 31 32 MR AGIUS: It is. I have it now. Thank you. 33 34 Q. At page 42 of your evidence on 13 July, you were asked 35 some questions about paragraph 151 in your statement by my 36 learned friend Mr Stoljar. You gave a long answer in which 37 you referred to, amongst other things, a wage claim. 38 A. Yes. 39 40 Q. That is a case that is currently before the Federal 41 Circuit Court? 42 A. Correct. 43 44 Q. I don't want to go to the merits or the evidence that 45 will be called in that case, but just so that we understand 46 exactly what you were saying there about that case, you are 47 being taken to court by the CFMEU, and the CFMEU is


1 alleging that you underpaid a gentleman by the name of 2 Cain; is that right? 3 A. Correct. 4 5 Q. You've yet to file a defence in that matter; is that 6 right? 7 A. No, I've already got my solicitor on it. 8 9 Q. You may have a solicitor on it, but do you know that 10 there is no defence on file? 11 A. Yes. I was talking to him today because he got to it 12 late. 13 14 Q. So the answer to my question, "You've yet to file a 15 defence; is that right?", your answer was, "No, I've 16 already got my solicitor on it", that wasn't a true answer, 17 was it? 18 A. I've sent him everything last week or - yes, I think 19 last week it was, I sent him all the paperwork to get it 20 sorted. 21 22 Q. Part of your defence is to deny the validity of the 23 EBA that you signed, isn't it? 24 A. Correct. 25 26 Q. That is why you gave the confused evidence that you 27 gave on 13 July 2015, about your signing or not signing the 28 EBA, isn't it? 29 A. Sorry, I didn't get that? 30 31 Q. You do not want to admit that you signed that EBA and 32 the supporting statutory declarations because if you do so, 33 it will damage the prospects of your case where you're 34 denying the underpayments; isn't that right? 35 A. No. Well, that's - I don't get really what you're 36 saying, but the EBA wasn't really - that's the issue when 37 I said before I had a meeting with Dean Hall, it wasn't 38 done properly from the CFMEU point of view, and then with 39 Mr Cain, the contract that I gave to Dean Hall, to show him 40 that actually he was a CW3 employee, not a CW5, I gave him 41 evidence of a CW3 and, under that, he would have been 42 actually over that money. They kept telling me, "No, on 43 the pay slip it says CW5", and I explained why I had it on 44 the pay slips. I said, "I've never had a meeting with you 45 guys explaining the EBA." I said, "I've only put that one 46 down because he wanted $35 an hour minimum so he could get 47 a loan". I said, "That's fine. I've never opened that EBA


1 before." That day I opened it. I've seen that the closest 2 one to $35 is CW5, when not even two months prior to that 3 I've hired him as a CW3. CW5 is a way higher level than 4 what just a normal carpenter is anyways, so I put it down. 5 So I explained the whole situation to him, and I said, 6 "This is what happened. He's a CW3 employee", and I gave 7 him the evidence. I said, "This is the contract." I said, 8 "You've never explained this to me before, and all the four 9 EBAs that I did pay for with the CFMEU, and you only lodged 10 one, you've never invited me to any of those meetings. You 11 keep saying, 'Formworkers agreed', but I was never 12 invited." He goes, "Well, for that, I will get Garry to 13 come to you and explain everything to you from now on for 14 this EBA", and till today it hasn't happened. 15 16 Q. What is the question to which you think that was an 17 answer? Let me put this to you shortly: I suggest that 18 your evidence given on 13 July -- 19 A. Yes. 20 21 Q. -- about your not signing the EBA and then your 22 evidence about your not signing the declarations was 23 deliberately confused because you do not want to admit that 24 you did sign that EBA and that it was in proper form? 25 A. No, I did sign the EBA, and I said I had my reasons 26 why I signed it. 27 28 Q. You signed the declarations, didn't you? 29 A. I signed the declaration, yes. 30 31 Q. And you gave the CFMEU your consent to file that and 32 to take the EBA through the approval process -- 33 A. And I was given -- 34 35 Q. -- which gave the FWA -- 36 A. And I've given the CFMEU the consent to file the other 37 three EBAs that I paid for prior to that, that they never 38 did anyways. 39 40 Q. Does that mean you did consent to the filing of that 41 EBA? 42 A. I had no other choice. I got another EBA at the same 43 time, which I have a letter from the CFMEU saying that I do 44 have it, that they never filed, and the builder tells me if 45 I don't sign that specific EBA, I can't get the job. 46 47 Q. That's because that's what the builder wants?


1 A. No, that's because what the Union told him to do. 2 3 Q. No, you're just making that up. I suggest to you and 4 you well know -- 5 A. And I did -- 6 7 Q. -- that builders are entitled to take into account, 8 when they are accepting tenders, whether or not the 9 subcontractor -- 10 A. I've provided to the -- 11 12 Q. -- has an EBA with a union? 13 A. I've provided to the builder a copy of the EBA that I 14 had at the time, that's still valid on paper until 2016, 15 till today, and they never lodged. 16 17 Q. It has been explained to you that that EBA was filled 18 out in error because Fihi had given you the wrong EBA? 19 A. No, I got four EBAs, and that day I went to the 20 Union's office and we discussed it and I recorded the whole 21 conversation, telling them that, "You guys went to 22 Morris Group saying, 'Do not give him the job until he 23 signs it'", and I don't think Mr Hall's - any comments were 24 any better to fix the problem. 25 26 MR AGIUS: Would you excuse me for just a moment while 27 I get some instructions, Commissioner? 28 29 THE COMMISSIONER: Yes. 30 31 MR AGIUS: Mr Commissioner, I had an opportunity over 32 lunch to take some instructions, and I have just confirmed, 33 with my instructing solicitor and junior. Mr Taleb has 34 raised some material today which we were not aware of. 35 I have not been able to get final instructions in relation 36 to it. 37 38 I would propose to put on statements from Mr Hall, 39 Mr O'Mara and Mr Smith about a meeting with this witness at 40 the office of the CFMEU. I don't have those statements yet 41 because I didn't think that they would be necessary, but 42 until I get them, until they are settled, I am not in a 43 position to put the content of them to this witness about 44 the substance of that meeting. Because I can't put that, 45 I can't be confident that the Commission would not expect 46 me to put that to this witness, and that is my concern. 47 I raise it now because I've taken this cross-examination as


1 far as I can. 2 3 I don't want to unnecessarily delay the witness, but 4 I do not expect to have an opportunity to confer with those 5 potential witnesses again until perhaps tomorrow afternoon. 6 I think the work we have tomorrow will probably finish well 7 within the morning. 8 9 I am content just to rely on our statements when we 10 produce them, but that would mean that I would not have put 11 the content of them to this witness, and I really don't 12 want to be accused of being unfair to the witness. 13 14 THE COMMISSIONER: Two thoughts occur to me. One is you 15 and the witness are sharply at issue on various things. 16 17 The second matter is this: it is probable that what 18 Mr Hall, Mr O'Mara and Mr Smith will say in these new 19 statements in relation to the meeting to which you refer 20 will be in issue. 21 22 For my part, I wouldn't be troubled by the absence of 23 you cross-examining Mr Taleb in relation to this new 24 material. If, of course, Mr Taleb has something additional 25 or perhaps more complex and significant than a straight 26 admission or denial, he might be required to give more 27 evidence, in which case, he could be recalled for further 28 examination by you. 29 30 Mr Stoljar, as far as I am concerned, there is no need 31 for further cross-examination on those statements. 32 Admittedly we are in a slight difficulty because we do not 33 know what is in them, but do you see any fault in the 34 procedure I am suggesting? 35 36 MR STOLJAR: No, Commissioner. 37 38 THE COMMISSIONER: Do you, Mr Agius? 39 40 MR AGIUS: No, I don't. 41 42 THE COMMISSIONER: I do not think it could be said that a 43 point could be taken against you for not putting the CFMEU 44 position to Mr Taleb. 45 46 MR AGIUS: I raise it now just to avoid, to be frank, 47 criticism later, because I haven't put it to this witness,


1 but I'm just not in a position to. 2 3 THE COMMISSIONER: No, quite. You cannot put something 4 which you do not know. I think your position is a 5 reasonable one. Yes, Mr Stoljar? 6 7 MR STOLJAR: Can I just indicate, Commissioner, that 8 Mr Kivalu's representatives were advised of the fact that 9 Mr Taleb and, for that matter, Mr He and Mr Arona were 10 giving evidence today. They advised the solicitors for the 11 Commission that they did not wish to cross-examine Mr He 12 and Mr Arona, and they have now advised they do not wish to 13 cross-examine Mr Taleb either. I just wished to cover that 14 point. 15 16 THE COMMISSIONER: Should Mr Taleb be excused? 17 18 MR STOLJAR: Yes. I just have two matters I wish to raise 19 with Mr Taleb briefly. 20 21 <EXAMINATION BY MR STOLJAR: 22 23 MR STOLJAR: Q. The first was this, Mr Taleb, you said 24 right in the early part of your evidence to Mr Agius that 25 you had a message on your phone that I thought related to a 26 visit by Mr Hall to the Yarralumla site and you said, in 27 effect, it was on your phone and you weren't sure if it had 28 come into evidence or been produced. Was that the text 29 message that you refer to in paragraph 63 of your 30 statement? It will just come up on the screen or I can 31 give you a hard copy. Here it is. It is just on the 32 screen now. Is that the one, paragraph 63? 33 A. Yes. 34 35 Q. You indicated in answer to some of my friend's 36 questions that there could be some further recordings that 37 for whatever reason are in a safe, or, for whatever reason, 38 haven't been produced to the Commission yet. Are you able 39 to find those recordings and whatever they are, or wherever 40 they may be, and provide them to the Commission now? 41 A. Like I said I'll look for them and -- 42 43 Q. Could you do that by, say, Friday of this week? 44 A. Sure. 45 46 Q. And, if need be, we'll issue notices or the like. But 47 you are telling the Commissioner now that you will provide


1 that material, anything that hasn't been produced -- 2 A. That's right. 3 4 Q. -- will be provided to the Commission, to one of the 5 solicitors here, by, say, 4 o'clock Friday? 6 A. Okay. Sure. 7 8 THE COMMISSIONER: I took him to say he would look for 9 them. 10 11 MR STOLJAR: Yes. If he can't find them, he can't produce 12 it. 13 14 THE COMMISSIONER: Try as hard as you can to find them. 15 16 MR STOLJAR: Q. Do you understand that it is very 17 important that we get all of this material -- 18 A. I know. Sure. 19 20 Q. -- and that you really do need to produce it now. 21 A. Yes. 22 23 Q. There are going to be more statements. They will no 24 doubt be forwarded to you in due course and we will look at 25 any further material you produce and those statements and 26 we will take it from there. 27 A. Sure. 28 29 MR STOLJAR: I don't have anything further at this stage, 30 Commissioner. 31 32 THE COMMISSIONER: Is it best not to excuse Mr Taleb or to 33 excuse Mr Taleb? 34 35 MR STOLJAR: I think he can be excused and, if need be, 36 that situation can be revisited. 37 38 THE COMMISSIONER: Any opposition? Mr Taleb, you are 39 excused from further attendance on the summons which 40 brought you here a long time ago now, 13 July. You can 41 leave the witness box. Thank you very much. 42 43 THE WITNESS: Thank you. 44 45 <THE WITNESS WITHDREW 46 47 MR STOLJAR: That concludes the witnesses listed for


1 today, Commissioner. 2 3 THE COMMISSIONER: Very well. The hearing will resume at 4 10 tomorrow morning. 5 6 MR STOLJAR: Yes. 7 8 THE COMMISSIONER: The hearing will resume at 10 in the 9 morning. 10 11 AT 3.12PM, THE COMMISSION WAS ADJOURNED TO TUESDAY, 28 JULY 12 2015 AT 10AM 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47


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