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Issue No. 146 | 26 July 2002 |
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Crean-ite Is Not A Dirty Word
Interview: Trans Tasman Cole-Watch: The Full Story Unions: The Right To A Life Bad Boss: Phoenix Rising Politics: The Virtuous State International: The Champions History: Mandatory Mums Corporate: Network Governance Review: Navigating The Doublespeak Satire: Hector The Galah Found Hiding Poetry: Eight Days a Week
The Soapbox The Locker Room Postcard Week in Review Bosswatch
 No Need To Import IT WorkersKangaroo Court Horrifies ReaderSite Reunites Redundant WorkersCarr Off CourseThe Banners of GreedJoin The PartyShocks and Stares
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Cole-Watch The Full Story
*********** Green MLC Lee Rhiannon stood on the steps of the Family Court building in Goulburn St after five weeks of hearings in Sydney and labelled the Cole Royal Commission "a highly political tool of a ruthless federal government". Her comments came on the back of loud complaints from unions that they were being "stitched up". Why the outcry? Because in terms of overall process, hearing procedure and its terms of reference, the performance put on in Sydney was fundamentally flawed. Background The Cole Royal Commission was set up on August 29, 2001, by Workplace Relations Minister, Tony Abbott, to inquire into and report back on any "illegal or otherwise inappropriate" practices in the building and construction industry. It is due to report to Parliament by the end of this year, with recommendations. In establishing the Commission Abbott was no doubt mindful of the sage advice proferred by former federal treasurer, Artie Fadden, who once warned: "Never have a royal commission unless you know the result." Abbott appointed Terence Cole, QC, a former commercial lawyer and long-serving judge as Commissioner, and made Colin Thatcher, previously with the Business Council of Australia and an advisor to state governments enacting anti-worker legislation, its secretary. Derren Gillespie, involved in the 1998 Waterfront Dispute on the Federal Government side, was roped in as a key administrator, responsible for planning the Commission's program; managing interstate hearings; reviewing research; and commenting on submissions. Melbourne QC, Nicholas Green, who had recently acted for the Office of the Employment Advocate against the CFMEU, became a senior Counsel Assisting. The Federal Government initially budgeted $7 million for its Royal Commission but quickly inflated that figure to $60 million, more than double the amount allocated to the Royal Commission investigating the HIH collapse, Australia's largest corporate failure. To put the Commission budget into perspective, it is more than 20 times the amount allocated to primary healthcare for indigenous Australians, and five times greater than federal funding to help the jobless find work. Abbott's Royal Commission is a tax-payer funded bonanza for key players. Cole's $660,000 per year, plus perks, makes him the highest paid individual on the Government payroll, dragging in more than double the Prime Minister's salary. Thatcher's secretarial services bring more than $200,000 a year. A raft of counsels assisting, including Green, will divvy up the bulk of $19.1 million taxpayer dollars, earmaked for lawyers. More importantly than might at first be realised, $700,000 has been designated for "media relations". To be fair to Abbott, if his Commission had a mind to do a thorough job, he provided the resources. Besides the cold, hard cash, he put at its disposal 135 fulltime workers as well as Government lawyers, the Office of the Employment Advocate and agents of the Australian Federal Police and National Crimes Authority. Just this month, Thatcher admitted to Senate Estimates it had also had the benefit of communications intercepts - telephone tapping, that sort of thing. Before we go into the specifics of how the Cole Commission went about its task in Sydney, it is important to bear in mind some facts about a Royal Commission: - Despite appearances, and sweeping powers, Royal Commissions are not an arm of the judiciary but of the executive. In other words, they are creatures of Government, rather than law. - Theoretically, as the title suggests, Royal Commissions are Inquisitorial rather than Prosecutorial. In other words, they inquire into a subject, rather than seek to mount a prosecution. - For that reason, powerful counsels assisting, who lead and present all the evidence, do not have the formal obligations of fairness encumbent on prosecutors in courts of law. It is the contention of this observer that the CFMEU would have been better served if, in fact, the commission had been technically prosecutorial and, thus, obliged to present evidence in a balanced and objective manner. The Overall Process A phalanx of Commission investigators - lawyers, officers of the Federal Police and National Crimes Authority, and staff from the Office of the Employment Advocate - spent months in NSW gathering evidence to be presented at the Sydney hearings. They are understood to have interviewed around 200 people and, as a result, had gathered 110 statements of evidence by the time hearings began on Monday, June 3. Remembering their terms of reference, and resources at their disposal, consider how they addressed key industry issues: WORKPLACE SAFETY - one building worker is killed every week in Australia and, in 1999 alone, 475,000 working days were lost through injury, far more than through industrial action. The Maori community rallied during the Sydney hearings to mourn four of their own killed on city building sites. Employers of killed workers have been found guilty of negligence in criminal courts. Many industry observers, and participants, consider occupational health and safety a priority issue. Cole Commission investigators did not produce a statement from a single person in NSW alleging illegal or innapropriate practices with regard to workplace safety. TAX RORTS - Tony Abbott's insistence that "there is no evidence that tax evasion is more prevalent in this industry than others" is comprehensively refuted by an Australian Tax Office submission to the Commission. It says the building industry hides up to 40 percent of its income and is twice as likely to have outstanding tax debts as other Australian industries The ATO submits that levels of non-compliance are "high and widespread" amongst smaller industry operators, and reveals it will be adding another 50 fulltime staff to the 220 already dedicated to monitoring building and construction. It has been allegeded in the NSW State Parliament that construction industry employers are swindling state and federal treasuries out of a staggering $1 billion a year. Despite ample evidence on the public record, counsel assisting chose not to produce a single witness statement alleging tax rorts in NSW. PHOENIXING - the practise of going belly-up in one guise only to return to building sites under another company name, typically denying workers their entitlements, driving sub-contractors to the wall and depriving state and federal treasuries of tax and/or workers comp payments. The ATO submission identified phoenixing as a problem for the industry, saying it was "used to evade payment of tax liabilities through the deliberate and systematic liquidation of trading entities".
It has dedicated 30 staff to a special Phoenix Project. So far they have finalised 400 cases and have "raised" or "collected" more than $200 million in taxes or penalties. The Phoenix Project has another 150 cases pending. Cole Commission investigators failed to come up with one witness statement alleging phoenix operations anywhere in NSW. ILLEGAL IMMIGRATION - a bugbear of the country's largest construction union, the CFMEU, which says unscrupulous employers use illegals to drive down wages and safety standards, and to avoid workers comp, tax and other liabilities. Commissioner Cole is on record, saying that the problem, "on the information available, to date, would appear to be insignificant". Every day during the Sydney hearings, a Serbian master artist brought to Australia on a special immigration visa and paid $50 a week, captured events on drawing paper. On the final day of Sydney hearings, DIMA swooped on a Waitara building site where 15 employees of Modern Drywall were arrested on suspicion of being in the country illegally. Cole Commission investigators didn't produce a single statement alleging the illegal or improper use of immigrant labour. INDUSTRIAL RELATIONS - a bugbear of Commission architect Tony Abbott and the Office of the Employment Advocate. They allege the CFMEU uses industrial muscle to enforce union membership but rarely, if ever, make mention of employer misdemeanors, although these have been chronicled in transcripts and judgements of the AIRC, NSW IRC, criminal and civil courts. Each of the 110 statements initially produced by Commission investigators dealt with industrial relations. A handful - from peak industry, employer and worker organisations presented overviews - all the rest made specific allegations of illegal or inappropriate activity against the CFMEU or its members. Not one leveled such an allegation against any employer, except where an employer was alleged to have colluded with the union. Thus, from the off, the Sydney hearings were unbalanced, paying scant regard to terms of reference in which the CFMEU was not even mentioned. In fact, while the terms refer to "workplace practices" they also specifically nominate "occupational health and safety", "fraud", and "corruption" and we have already seen how investigators chose to deal with those subjects. To emphasise this imbalance, investigators chose not to interview or prepare a statement from a single CFMEU member in NSW, not even for the purposes of testing damaging claims they intended to make. The approach of investigators was inadvertently revealed by South Coast employer, Glenn Allan Colquhoun, during testimony. "At 11.30am during the course of my meeting with CMG and TL, two members of the commission arrived. I believe one member was Mr Neil Williamson and I am not sure of the other member's name," Colquhoun testified. "Mr Williamson said to the effect: "We are investigating the CFMEU's activity in the Illawarra area and are particularly interested in matters pertaining to (Wollongong organiser) Mr Primmer." Once the investigators spent their share of our $60 million, counsels assisting took over. In Sydney, Green was backed primarily by experienced legal practitioners Ron Gipp and Dr Matt Collins. These men were central to the farce that unfolded. Investigators had been broken into four teams, each head by a counsel assisting, then it was the job of counsels to prepare statements of evidence and lead that evidence before the commission. They carried out these tasks with as little regard to balance or fairness as the investigators who had armed them. Collins came up with a classic, alleging, in effect, that the CFMEU had accepted a $2.25 million bribe to deliver industrial peace to Meriton. His basis? Commission discovery orders showed the CFMEU had turned down an $8.25 million offer for its central Sydney offices in May, 1997, yet sold the property to developer Meriton in July, 1999, for $10.5 million. Collins told the Commission he had been unable to ascertain whether, in the interim, the vendor had obtained a development order that would have substantially boosted the site's value. The truth is it had, and Collins could have found out, if had been inclined, by asking. Without a witness, or doing the most basic research, he launched the accusation and was rewarded with predictable headlines in the following day's papers. Counsels tendered evidence that would have been inadmissable in any legal forum. Hearsay and unattributed allegations were read into the record. To generate newspaper headlines they relied almost entirely on small industry players with obvious axes to grind. Clearly, these people are as entitled as any others to tell their stories but, in such a forum, you would expect experienced lawyers, with massive resources at their disposal, to at least offer passing nods to the principles of balance and credibility. Instead, masses of such evidence available on the public record, was either not sought or withheld, as we will show. Two examples demonstrate the type of "evidence" levelled against the CFMEU and the lack of objectivity applied by counsels. Eddie Lombardo Lombardo, supervisor for TCB Concreters Pty Ltd, gave evidence that union demands had forced the company into liquidation with the loss of 29 jobs. He alleged the CFMEU had tried to use safety issues to push the company into signing an EBA, and that that a union official had suggested "backhanders" would make the company's problems disappear. Lombardo got plenty of coverage for his claims. At the completion of his written evidence he testified: "I have since commenced business myself again. I have co-operated with the Royal Commission in relation to these matters but I am really worried that by doing so I may become a target of the Union or others and it may effect my ability to work in the industry in the future." Days later, when the union responded, it argued TCB had come in for attention because Lombardo was a phoenixer who had repeatedly left workers, and others, out of pocket before reappearing in other guises. It had, it claimed, been trying to make certain the current operation was above board. Lombardo denied this but wavered under cross examination. - I just want to ask you about a number of companies and whether you were involved with them, Mr Lombardo. Ritex Concrete Contractors Pty Ltd? - Yes I was. - What happened to that company? Is it still in existence? -- Ritex Concrete, sorry. - Ritex Concrete Contractors Pty Ltd? -- ? No, I think it's been liquidated. We're talking 10 or 12 years ago, or more. - It had employees? - Yes, it did. - It went into liquidation - That's right. - Did it owe workers money at the time? - It was myself and another two partners involved. I was on the field, I was a supervisor at that time, supervisor plus a worker at the same time. To my knowledge, no, there was no money owed. - What about the Tax Department - I don't know. Then later ... - What about Ritex Formwork Pty Ltd? - I was director of Ritex Formwork, too ... - What happened to that? - That went into liquidation, too. - Why did it go into liquidation? - Like I said before, I was a supervisor plus a concreter at the same time. I was not in the formwork side of it. - You don't know why it went into liquidation either? - I was not involved in the formwork side of it. - You were a director, weren't you, of that company? - I was a director of Ritex Concrete Contractors at the time. To cut a long story short, Lombardo went on to spill the beans on Ritex Contractors Pty Ltd, Cotec Contractors Pty Ltd, Cotec Administration Ptd Lty, Ritex Holdings Pty Ltd, Cotec Concrete Pty Ltd, Erinmore Holdings Pty Ltd, Hitex Concrete Pty Ltd, all liquidated or in administration. He had also been a director of the similarly unfortunate Ricon Construction Pty Ltd, Ricon International Holdings Pty Ltd, Ricon Design and Construction but had given up those positions before their demise. He was barred from being a company director in 1996. Remember that date! Why counsel assisting hadn't found this background relevant to their investigations, particularly given Lombardo's testimony that he is back in business for himself, was never made clear. Even more extraordinary was their decision not to interview, or call to the stand, a certain Mohammad Ali whose relationship to their man, Lombardo, is on the public record. If you want evidence of an extraordinary stitch-up, read on.. Following publication of Lombardo's testimony, Ali was moved to make a statutory declaration of his own. He said that, following his 1991 migration from India, he had... - begun a work experience job with Ricon Constructions Pty Ltd which led to fulltime employment as an estimator. In this position he met company directors, Sam Cantarella and Eddie Lombardo. - He went on to do the same work for them at subsequent entities - Cotec Contractors Pty Ltd, Cotec Concrete Pty Ltd and Hitex Concrete Pty Ltd. - Around 1996, Cantarella and Lombardo asked him to become a director - "From what I had been told, I believed that becoming a director was an honour or a sign of respect, that it was a form of promotion of my position within the company, and that I should accept." - "I continued to perform my duties as an estimator for the company ...My salary remained unchanged." - "Sam and Eddie and other persons, such as Joe, met together from time to time at the company's premises at 1 Mavis St, Revesby, but I was not invited to attend these meetings, and I did not do so. I took no part in the management of the company at any time..." - "In September, 1998, Sam and Eddie told me that they were opening a new company and would like to make me a director. Once again I signed documents which had been handed to me by Joe. The new company was named Hitex Concrete Australia Pty Ltd ... " - In February, 1999, Hitex Concrete Australia Pty Ltd also went into liquidation. Ali ceased working with Lombardo and Cantarella and got a job with another company. - "After Hitex Contrete Pty Ltd closed down Mr Lombardo set up Lagiru Pty Ltd. He was never a director of this company as he was not allowed to be. He, however, controlled the company with Mr Cantarella. Attached at Appendix C is a proposal for the new company. - "Mr Lombardo stopped having anything to do with Lagiru after he found out that he was not going to earn as much money through that company. He told me at the time that he left Lagiru and was setting up a new company called TCB Concreters Pty Ltd. He said to me in relation to TCB words to the effect of "I'm not the director but I own the company." The workers who were going to work for TCB had previously worked for Mr Lombardo's previous companies including Lagiru, Cotec, Hitex and Ritex." - Imagine Ali's surprise, on August 6, 1999, when he was personally served with a bankruptcy notice, relating to an unpaid company tax bill of $292,515.64. When he didn't hear from Cantarella or Lombardo, within a fortnight, his new employer convinced him it was a serious matter and arranged an appointment with a solicitor. The Royal Commission was furnished with Ali's affidavit but chose not to call him as a witness. Ferdinando Sanna Betaform Construction boss Ferdinando Sanna was another who won plenty of column inches for the anti-CFMEU crusade. Essentially, he argued, the union drove his company to the wall by forcing it off sites where it held form working contracts because its employees were not union members. As an example, he cited, the NIDA dispute where employees struck for seven or eight days. Further, Sanna contended, the CFMEU had the tacit support of head contractors for its campaign to force small players out of the industry. In a conspiracy theory that was music to counsels' ears, Sanna testified: "I think it was all done between the builder and the union to send Betaform into voluntary liquidation ... I believe this union is out there getting rid of the smaller subcontractors, keeping the big ones alive, because the big ones have got the money, give them something underneath the table, shut them up and carry on ...": In order to give the claims some perspective it might have been useful if counsels had first spoken to union organiser, Martin Wyre, delegates from the NIDA job, or even their families. When Wyre gave evidence about the dispute, he claimed Sanna's father had threatened to kill him and that management had poured petrol on a smoko hut and threatened to set it alight with the workers inside. He also told the Commission of complaints to the police from one delegate's wife that she had fielded 13 anonymous calls, around this time, threatening that she would be raped. Essentially, the union claimed, Sanna attracted attention because he had a history of running phoenix operations, defaulting on taxes and was behind in his workers compensation payments. Read excerpts from the transcripts and judge for yourself ... Sanna: "Back then, that's when Sacom - Sanna Constructions came, a long time before that and there was nothing wrong with Sanna Constructions, and Sacom I was a director, me and my mother, and then Sacom-Clarevale Enterprises I was a director, because back then, when Sacom went into liquidation, I was going - between my parents' divorce and that, it was a big divorce, I said to my father - I wasn't getting along with him either - I will take on the labour force. That is where Sacom Building Construction came along and Sacom Building Australia, I took on the labour force. At the end of the day, it's a hard industry that's out there, and that's it. Boltrum was another company that took on just the work from Sacom building and Sacom Building Australia, as a labour force ... How many of these companies still exist? - Basically, Sacom Building Australia and Sacom Building Construction got a bill of $800,000 owed to workers comp. It's not that we weren't paying our premiums, it's the workers comp link - saying they're all one company... Just tell me which ones exist, Sacom Constructions? - Sacom Construction is in voluntary liquidation, me and my mother. Sanna Constructions? - Sanna Constructions is still on the books, it's still operating, but it's there, the name is there, it could be operated any day, it can start tomorrow, if it wants, but it's just there, we are not using it. Clarevale Enterprises? - Clarevale Enterprises, we, as a labour force, I couldn't make ends meet I had to send the company into liquidation. Voltrum? - Voltrum, I wasn't a director of that company. I was employed by that company. It was taking on the labour force, the same as taking on the labour force from Sacom Building, and also that went into liquidation, too. Sacom Building BC Pty Ltd? -- Sacom building Construction. Is that in liquidation? - Sacom Building Construction and Sacom Building Australia Pty Ltd, they had to go voluntarily in liquidation because the workers comp was hitting ..." Haughtons Structural? - Haughtons got nothing to do with us. My brother, he's got his own business, he's on his own. All these other companies, except Sungain and Betaform, is - Haughton Panels, that's got nothing to do with us, that is me brother, he's on hiw own, Haughton Constructions is on its own, and he's on his own, it's got nothing to do with me ... On and on it went. Had he reneged on an agreement for repayments to the ATO? "We were financially in trouble then, yes, but little does the union tell - the union only makes us look the bad one ..." Had he underpaid workers comp premiums? "That is incorrect, because they done - at the end of the financial year with Betaform now, Betaform, with the year that just went past, owes $150,000, yes, it does but we we've got agreements with the workers comp for instalments and they are happy ..." Alternatively, if investigators had bothered to investigate, they could have gone to the public record and found a court judgement, dated June 8, 2001, against Sangain Pty Ltd and Mario Sanna, in favour of the ATO. If they had been so inclined, they would also have discovered it was set aside, in March 2002, following agreement that Sangain and Sanna would pay the ATO the sum of $320,000 in two installments. We have met some of the characters wheeled out to dish dirt on the union but they were only part of the story. What about employers, who were interviewed, but didn't make the cut? We'll never know all their stories but three have so far come forward to shed light on the selection process. The Rejects In a statutory declaration, signed on May 9, 2002, JR Rigging manager, John Chandler, says the Commission brushed evidence of insurance fraud, stand-over tactics, falsified inspection records and major health and safety breaches because the union was not implicated. Chandler said he provided evidence of structural flaws in a sports complex that left public safety in jeopardy but the Commission hadn't wanted to know. At a December, 2001 interview with two Commission investigators, he said he made a series of criminal allegations against big building companies. These included fraud, threatening behaviour, conspiracy and collusion, in an effort to suppress legitimate concerns over construction standards. However, he declared, it was only when he mentioned unions that investigators became "extraordinarily interested". "My overall impression was that the investigators were much more concerned with hearing anything about the union than they were with large scale cover-ups by a major construction company," Chandler declared. Chandler said when he tendered supporting documentation a female investigator told him the story was "huge". On March 18, the commission informed him it would not be investigating his allegations and he would not be required to give evidence. A western Sydney builder, who refused to give his surname "because I want to keep working in the industry" said he had been pressured by commission investigators, and counsel assisting, to sign a false declaration. John said he had been approached by two investigators and asked to give a statement about his dealings with the CFMEU. "Sure, I've had my problems with the CFMEU, who hasn't?", he said. "I'd been through an unfair dismissal case and didn't think I got a fair go. John said he related that incident to investigators but when they returned with a typed-up witness statement, three weeks later, "everything had been blown out of all proportion" and at least two untruths had been incorporated. He identified these as being: - that the union had coerced him into contributing to its picnic fund - that if a 36-hour week came into the industry his company would go under. John said he refused to sign the bodgeyed statement and had to throw "threatening and intimidating" investigators off his property. The builder said that three weeks later, he received a subpoena to attend the Commission on June 21. On arriving in Sydney, he was interviewed by one of the counsels assisting who also tried to convince him to sign the inaccurate witness statement. "I told him the statement had been exaggerated and they had added in pieces that I had never said. Then he asked me if I had been threatened by anyone and, I said, - yes, by your blokes." Another point of contention with counsel assisting, John said, had been compulsory unionism. His company had worked on a project subject to commission scrutiny and he rejected the claim that workers had been coerced into signing up with the CFMEU. In the end, counsel assisting decided it was a view the commission didn't need to hear and sent him packing. Equally instructive is a letter sent to Construction Administration Services (CAS) by another western Sydney employer who didn't want her name published. CAS is an auditing firm which often checks company records before the CFMEU enters negotiations with them. For some reason it took a pounding from counsels assisting who tried to paint it as an off-shoot of the union, and even suggested it operated out of the same Lidcombe building. In fact, CAS is an independent auditing firm based at Rockdale. Its major clients include Workcover and a national real estate firm. Principals insist that less than 20 percent of their work is union related. In a letter to partners, Rosemary Saridakis and Angelo Russo, this employer lays out an increasingly familiar scenario. She says she was interviewed by two men who identified themselves as Royal Commission investigators. One identified himself as Greg Alford and the other she remembered only as Richard. After detailing a number of questions she gets to the one that terminated their conversation. "Is there anything else that was different in your EBA and to what Rosemary has asked you do," she records investigators asking. "No, in fact I often ring Rosemary up for advice and I have found her helpful and she does not even charge our company for the advice I have asked her for." "Rosemary," the employer writes, "this is where Richard switched off the recording machine and said to Greg: "Well, that's not what we wanted to hear." The Accused Clearly, such partisan gathering and presentation of evidence spelled problems for the CFMEU as an organisation but it is worth remembering that organisations are made up of people and there was also a significant personal cost to be paid. Undoubtedly, the commission experience damaged the standing and reputations of certain individuals. Some, like Sammy Manna, who sensationally recanted evidence of a relationship with a female employer, brought it on themselves. Others got a workout they will probably never forget and, arguably, didn't deserve . This reporter has never met nor spoken to Tommy Mitchell or Dave Kelly and is unable to provide any opinion on what either is like as a person or trade union official. Tommy Mitchell Formerly with Norm Gallagher's controversial BLF, Mitchell now organises for the CFMEU on Sydney's northern beaches. He got a number of unfavourable mentions in the Commission, the most sensational coming courtesy of the husband and wife team at the head of S & B Industries. Barbara Strong alleged Mitchell had threatened to break her arms and legs and then threatened her young children. She also alleged he had demanded kickbacks of $5000 and $10,000 from her and husband, Stephen, to call off industrial action on their Manly site. The media, naturally, leapt on these claims and Mitchell was the subject of headlines for days. The papers carred his photo and the Daily Telegraph even caricatured him as a muscle bound gym junkie, hiding behind dark shades. The Strongs alleged that threats and financial demands, which Mitchell emphatically denied, were made at an on-site meeting, and again in telephone conversations. At the site meeting, evidence suggested, seven adults had been present - the Strongs, Mitchell, another union organiser, two representatives of the head contractor and an MBA rep, acting for the Strongs. Another man, a sub-contractor to the Strongs, was outside and heard most of what was, according to all reports, a heated discussion. As the days wore on, and others, at and outside that meeting, tendered evidence, it transpired that none of the other six could recall the alleged threat of physical violence. Further, only one, the Strong's representative, Geoff Thomas, had any recollection of the alleged sums of money being raised and he thought Mitchell had mentioned $5000 in an industrial context. Thomas further testified that if he had thought there had been any suggestion of a bribe he would have reported it to police. One by one, others who had been present, either denied or couldn't confirm, key Strong testimony about surrounding events. In fact, the only threat that everyone present appeared to have heard was made against Mitchell by Mr Strong. "There's a target on your head, ready for a fucking bullet," was Mitchell's recall, while Strong conceded, in evidence, "I then said to Mr Mitchell words to the effect of - you're walking around with a bullseye on your forehead." Others had their own variations on the wording. Anyway, around this point the meeting broke up in mayhem, Manly police were called and took evidence from all parties. The Strongs allege that after Mitchell made a threatening telephone call, they reported it to police and provided statements. Interestingly, the commission never called, or tendered evidence, from police officers involved in either incident. Dave Kelly The Illawarra Mercury of July 22 carried a full double page feature devoted to CFMEU Wollongong organiser, Dave Kelly, and his nemesis, South Coast building industry mogul, Colleen Camarda. Kelly was pictured with a Vietnamese helmet Camarda had brought back for him from a business trip to Vietnam. The pair expressed grudging respect for one another. It was not, needless to say, the picture painted by Counsel Assisting Gipp when he addressed the relationship before the Royal Commission. Quoting from a letter, of some vintage, to the CFMEU from Master Builders Association representative, Brian Seidler, Gipp accused Kelly of saying of Camarda he would "put her pelt on his belt" and her "head on a stick". Kelly's insistence that he respected his adversary and the comments had come during a telephone call, initiated by Seidler, while he was drinking after work, cut little ice with Gipp. He went on to another quote attributed to Kelly: "I am in my tank, heading down the South Coast, and I am going to crush any employer who gets in my way." And he had another, about setting up Soviet-style communes up and down the South Coast, and another that Kelly would give a company a "thrashing" if it didn't sign an agreement. Kelly insisted the comments were either "industry parlance" or "humour" but Gipp, characterised them as serious threats, designed to frighten and intimidate. A number of South Coast employers gave evidence that Kelly stood over them and abused safety concerns in a bid to force employees into the CFMEU, contravening freedom of association provisions in the Workplace Relations Act.. When Kelly gave evidence he testified to having been frog-marched off a site at gun point, throttled by one employer and threatened by others. He was able to point to independent decisions against his accusers, including IRC rulings; Workcover closure of sites on health and safety grounds; and a September, 2000, IRC order reinstating two workers who it ruled had been "principally" dismissed because of their union affiliations, also, presumably, contravening freedom of association principles. Kelly said he had been assaulted by another employer, represented by the Employment Advocate, and that person had subsequently been charged by police. Naturally, all of this information either evaded commission investigators or was withheld by them. Kelly, though, was probably most deeply hurt by Green's use of a five-year-old letter from the Master Builders which passed on claims that he had used racist terms. It was hearsay, which didn't even identify the author of the allegations. Although counsels assisting had had the letter's author, Brian Seidler, on the stand more than once they never asked him what, if any store, he placed on the allegations. Strenuous legal objections were rejected by the Commissioner who ruled "this is not a slur. This is a formal complaint from the Master Builders Association .... " Kelly denied the claim emphatically but the commission had its headline. His photo appeared in the Sydney Morning Herald under a "Jewish Slur" banner. Employer's Advocate At this point it is probably worth touching on the role played by the Federal Government's Office of the Employment Advocate, headed-up by Jonathan Hamberger. While it was intimately involved with the one-sided investigation carried out by the Cole Commission, evidence from worker and employer representatives made it clear that the OEA had been championing industry employers well before the Royal Commission came into being. Not only did the OEA advocate for the employer who assaulted Dave Kelly, but Eddie Lombardo testified it had represented TCB Concreters in negotiations with the union. During testimony, more than one employer referred to the organisation as the Employer, or, Employers' Advocate. While these labels might be technically inacurrate, it is easy to understand how such misconceptions took hold.. The Procedure Finally, we enter the hearing rooms themselves. While investigators and counsels appear to have made most of the play to this point, there is no doubt who is King on the seventh floor of the Family Court building in Goulburn St. This is the realm of Terence Cole, the QC who lends his name to the proceedings. Because there are no set rules for Royal Commissions, Commissioners are vested with sweeping powers of discretion. There is plenty of tradition to be guided by but it is not writ in stone as Cole lost little time in demonstrating. On Friday, June 14, he stunned observers with directions that turned tradition on its head, backing counsel assisting Green's decision to call no union witnesses. CFMEU lawyer Steve Crawshaw protested it was an "amazing" way to run an inquiry. "I have been involved in many inquiries, including the Gyles Royal Commission, royal commissions, inquests, inquiries, and never have I had it suggested that those conducting the inquiry should only call one side of the story," he argued. "Here, it's been all one-side. We have heard two weeks of evidence, all one-way, and counsel assisting don't propose, as I understand it, to call any evidence to the contrary." The Commissioner brought him up short, saying there had never been an inquiry such as his. It was, Cole contended, "a bit facile" to suggest there should be a "new-found spirit of co-operation". Cole backed up his ruling by directing that union lawyers would only be able to cross examine on a narrowly defined basis. To ask questions in cross examination they had first to have led contradictory evidence, then they would be limited to matters of factual dispute. So, in practise, what did this mean? Essentially, that the union had been ambushed. Normally, in Royal Commissions, all evidence is led by counsels assisting. In order to do this they are armed with the personnel and resources we have already examined. Suddenly, three weeks short of vacating Sydney, Cole had changed the rules. Union witnesses could still be heard but they had to prepare their own statements and include, within them, every single item they wanted to cross examine on. At this point, nearly 100 anti-union witnesses had been led and multiple annexures filed. The commission was still leading hostile witnesses and filing supporting documents on the court book. This left the three-person union legal team around a fortnight to file comprehensive statements, countering every allegation raised and those still coming in, whilst monitoring hundreds of additional pages of evidence and documentation going up daily. Simultaneously, they had to cross examine commission witnesses. It is doubtful that any of the union counsel felt comfortable with their cross examinations in these circumstances. The severe time constraint prevented the union countering all the allegations it wished to contend. But there was another sting in the tail of Cole's directions. While the commission would not use its resources to prepare union statements, each would still be led by a counsel assisting, rather than a union lawyer. In practice, this turned the leading of union evidence into an aggressive, often combative, cross examination. This stood in stark contrast to the kid-glove treatment handed to earlier witnesses where, in some cases, counsels assisting had virtually read witness statements through, requiring the person on the stand to only occassionally utter the words "that's correct". This de facto cross examination of union witnesses, often as not, went directly to credibility, an opportunity specifically denied the union by Cole's insistence that cross examination be limited to matters of factual dispute. Under this ruling, Cole denied an application to cross examine Lombardo about the unfortunate Ali. Because Lombardo had not mentioned Ali in his testimony, one way or the other, Cole ruled there was no contradictory evidence before him. But, despite his ruling, Cole regularly rejected cross examinations that went to contradictory evidence. He turned down literally hundreds of application to cross examine. One clear example came when an employer testified that a union official had come onto his site and cut power cables during a health and safety dispute. The organiser concerned disputed this, on the stand, saying he had removed the cords from the power box because they had not been tagged. Cole rejected an application to cross examine the employer, despite this contradiction. It wasn't just on the stand where the union, and its members, found themselves subject to inferior treatment. One observer doubted that any employer witness was kept waiting more than a couple of hours before being called to the stand. Union officials, on the other hand, were kept waiting around day after day. In some instances, individuals from Wollongong, were brought back on five consecutive days, before being called to give evidence. The Wash-Up So, we come to July 5, the date set by Commissioner Cole for counsels assisting to provide a list of persons, and organisations, they might seek adverse findings against. The list was not to be comprehensive, leaving room for others to be added, but certainly would give an indication of where the Sydney proceedings were headed. Duly, counsels assisting listed 32 persons and organisations. And guess what? Not one employer, or employing company, made the list. There was no Eddie Lombardo, no Ferndinado or Mario Sanna, no TCB Concreters or Betaform, nor any other of the myriad guises they might travel under. There was no Stephen Strong or S & B Industries. The South Coast employer charged with assault didn't get a guernsey and neither did the company which defied IRC reinstatement orders, after being found guilty of breaching the Workplace Relations Act by dismissing workers "principally" because of their union affiliations. Frankly, after seeing the commission in action for five weeks, there were no surprises.
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