Libs challenged over rising John Holland death toll

Respect … Airport Link workers farewell Sam Beveridge

WORKERS are challenging the Turnbull Government to rein in death company, John Holland, by removing its self-insurance privileges.

“If this government has any interest in workplace safety, beyond lip-service, it will bring John Holland to heel,” CFMEU construction division national secretary Dave Noonan says.

“Allowing a company involved in multiple workplace deaths to self-insure its liabilities is an insult to the people who have died and the families they have left behind.”

Noonan was speaking after the Federal Court fined the company $170,000 for its role in the 2011 death of 40-year-old husband and father Sam Beveridge on the trouble-plagued Brisbane Airport Link.

Eight Australians have died on John Holland sites since the company won a licence to self-insure in 2007. In the same period it has had six health and safety convictions in the Federal Court.

Four related to its culpability in the deaths of Wayne Moore (45), Mark McCallum (34), Anthony Phelan (60), and, now, Beveridge.

In issuing penalties over deaths, severe burnings and crush injuries, judges repeatedly cited the need for effective deterrence.

Beside those convictions, John Holland has negotiated its way into “enforceable undertakings” with Comcare, over other safety failings.

Only last month, it was telling the Adelaide Magistrate’s Court it should be let off with a “six-figure fine” after a 48kg pipe fell 15m, from a city building site, onto two cars below.

John Holland pleaded guilty to the first prosecution authorities had filed under the federal 2011 Work Health and Safety Act. Strong warning?

Against that background, earlier this year, Comcare rejected a detailed CFMEU submission against extending John Holland’s licence to self-insure and, instead, extended it for another eight years.

The federal Comcare licence is used by the company to block unions from using state-based rights to carry out safety inspections on its sites.

In any circumstance, Noonan says, a $170,00 censure over the death of human being is “completely inadequate”. In John Holland’s case, he labels it, “obscene” and “tokenistic”. 

By way of comparison, the fine on John Holland – sold by Leighton Holdings for $1.15b last year – is barely half the amount Fair Work Building Commissioner, Nigel Hadgkiss, is seeking from a single CFMEU member over long-settled industrial disputes.

He is also seeking hundreds of thousands of dollars in penalties from the union’s South Australian branch over health and safety issues at an Adelaide workplace where two men have been crushed to death.

The fear, amongst some industry players, is that workplace safety is being sidelined as the government’s hand-picked regulator drums up corporate support for its political campaign against the CFMEU.

There were hints of that strategy on Brisbane’s $4.8b Airport Link – at the time, the biggest construction project in Australia.

The first thing to understand about this job is that it was a shambles.

Financially, the controversial Public Private Partnership put together to deliver the twin road tunnel, was a disaster.

The Brisconnections Consortium rested on a piece of financial malarkey that lured thousands of “mum and dad investors” to support corporate partners Macquarie Group, Theiss and John Holland.

Brisconnections won the Airport Link contract in June, 2008, amidst allegations of impropriety.

However, on the first day of trading, investors’ $1 shares were changing hands for barely 40 cents. Within a few months they were struggling to find a buyer at one cent.

Many non-institutional investors had no idea the small print on their contracts obliged them to buy further installments at $1 a share and, by 2009, Brisconnections was threatening to sue the lot of them.

This was the cue for notorious Sydney identity, Jim Byrnes, to inject his not-inconsequential frame into the picture. He tried to hit investors up for between $2000 and $5000 each to take legal action and, of course, to provide him with a “fee”.

The convicted heroin importer and “person of interest” in an unsolved murder, would go on to become a star witness for John Dyson Heydon’s trade union royal commission.

Royal commission star … Big Jim Byrnes

After Byrnes played his hand, the Australian Securities and Investments Commission (ASIC)
threatened to get involved, then a winding-up resolution was avoided by the last-minute sale of one disgruntled shareholder’s parcel to Thiess-John Holland, itself, for $4.5m.

In November, 2012, Brisconnections was suspended from trading and, three months later, administrators, then receivers, were appointed.

While Brisconnections was toast, its Airport Link toll road was sold to Transurban for $1.87b, last November, in an auction jointly managed by none other than Macquarie Capital.

That’s business. But the real casualties in this saga lived, and worked, in the real world.

We talked to former CFMEU assistant branch secretary, Peter Close, site organiser Bud Neiland and experienced health and safety co-ordinator, Andrew Ramsay, about a project that ran to the middle of 2012.

Close says a number of factors came together to make the tunnel one of the most frustrating jobs in his near 40-year involvement with the construction industry.

One, undoubtedly, was the Comcare licence.

John Holland, a construction company with a history of safety issues had been licensed by Comcare – the old Commonwealth public service safety regulator re-tooled by the Howard Government to allow corporations to self-insure their compensation liabilities.

“They had no bloody idea,” Close says, “they might have been good on safety in public service offices but they were out of their depth on construction sites.

“John Holland should never have got a Comcare license. We felt, when it came to safety, they hid behind it.”

Another issue, the CFMEU officials agree, was the anti-union attitude of the consortium.

They put this down to a collision of factors – corporate muscle flexing only three years after the arrival of WorkChoices, financial difficulties, and the desire of hardline IR manager, Stephen Sasse, to cement his reputation.

Queenslander Close reverts to his native tongue to explain the influence of Sasse.

Footy star   … Wally Lewis

“He saw himself as the Wally Lewis of IR,” Close says. Rough translation – he thought he was a dead-set legend.

Sasse had a track record. Industry chatter suggested he had helped the Liberal Government fine tune WorkChoices for the construction industry.

Certainly, he had used the new laws to hire Australia’s first construction workforce on a “greenfields agreement”. These so-called agreements allowed John Holland to set its own wages and conditions without the agreement of unions, or anyone else for that matter.

Twelve months later, Sasse engineered the transfer of that whole Port Hedland workforce over to take-it or leave-it individual contracts.

Sasse had a strong ideological aversion to the CFMEU, an opinion he was invited to express before Heydon’s trade union royal commission where, amongst other things, he testified that:

“The eight-hour day in 1856 was industrially unlawful at the time and it hasn’t really stopped ever since.”

In 2014, he delivered the keynote address to the annual dinner of the anti-union HR Nicholls Society.

None of this surprises those impacted by his influence on the Airport Link tunnel.

Yet, it has since emerged that Sasse – the industrial hardliner –  had been deeply concerned about what was happening on his watch.

Grave doubts … John Holland’s Stephen Sasse

In fact, he had alerted John Holland executives, way back in 2010, that safety on the Airport Link was out of control – operating, as he put it, “in contempt of our OHS governance systems”.

“I have grave doubts about the management team’s capability in safety,” his confidential memo warned directors and senior managers.

Project management, to union minds, had set out to run the full anti-worker agenda, from blocking access to undercutting wages and conditions.

It marked the emergence, at least on major Queensland jobs, of the widespread use of untrained overseas visa workers.

A significant beneficiary was Lis-Con, a company battling the Tax Office over allegations of massive tax avoidance. Its labour hire division poured dozens, possibly hundreds, of Irish back backers into the tunnel.

Lis-Con chief Eion O’Neill, too, would be invited along to Heydon’s royal commission to make allegations against CFMEU members.

Earth moving outfit, Rocktown, was another that used imported, daily hire labour.

“They had low-cost sub-contractors using imported labour, even back packers, to work on the largest construction project in the country. Meanwhile, reputable local firms with proven records were missing out,” Close said.

The results, Close and Neiland contend, were predictable.

They recall one incident where a man, preparing steel reinforcing, managed to weld himself inside a metal cage.

“They had to cut him out,” Close said. “It might seem funny now but it shouldn’t have happened. Put it this way, a proper tradie would never do that.”

One morning, a crane carrying a 5m steel piling cage toppled over, narrowly missing vehicles on busy Lutwyche Road.

Another rush hour was disrupted when contractors in the tunnel managed to drive a large industrial drill bit 1.5m through the surface of the motorway above them. At least two motorists collided with the unexpected obstacle.

Other stories, reported by union members, were hair raising.

Ramsay recalls one worker plunging 6m through an uncovered penetration in air conditioning vents. He survived but, according to industry sources, hasn’t been able to work since.

Increasingly concerned, CFMEU officials put their fears in writing.

After gaining access, as part of a broader Builders Trades Group in March 2010, they set out 30 separate breaches of the Workplace Health and Safety Act they claimed to have identified.

The unions insisted that each be fixed and asked the consortium to instruct its sub-contractors to conduct “legitimate and transparent” elections for safety reps.

“It is in the mutual interest of workers’ health and safety and the productivity of the site that a process of collaboration is set up,” they wrote.

That went nowhere, so the CFMEU prepared another safety report and, this time, sent copies to political leaders, as well as Thiess-John Holland.

“We couldn’t get on there, that was the big problem,” Close said. “We had workers ringing Bud at all hours and asking for help.”

By September 29, 2011, it was too late – at least for Sam Beveridge and his family.

“They had him lying on cardboard, over cold concrete, and cutting steel beams above him. What he was doing was crazy,” Close said.

Ramsay says responsible workers were continually being urged to go harder and faster.

“I couldn’t say that if the CFMEU had had proper access to that job, Sam would be alive today … but honestly … what I can say is, I wouldn’t have walked past that, no way,” Ramsay said.

He is still in touch with Sam’s widow, Jen, who has become a champion of workplace safety and has gone out of her way to help other grieving families.

Predictably, Commissioner Heydon didn’t invite Jen Beveridge, or any of the hundreds of other family members impacted by workplace tragedies, to tell their stories before he recommended sweeping changes to safety laws.

Jen told us the diesel fitter had been a family man, never too busy to help other people. “There will not be a day,” she said, “when we don’t think of him or wish he could still be with us.”

Her husband was pronounced dead at the Royal Brisbane and Women’s Hospital on Saturday, October 1.

A day later, Neiland managed to get into the tunnel.

“I told them we needed to talk to our members, they were upset and they were angry. There were a whole heap of issues and they needed to be addressed,” he recalled.

A couple of hundred workers walked off the job near Kedron, where their colleague had been injured, and started marching along the motorway towards the Royal Brisbane and Women’s Hospital.

Traffic banked up as workmates emerged to join them.

They followed the route of their tunnel – over Swan St, through Lutwyche and Windsor, until, outside the hospital, they were more than a thousand strong.

It was an angry, solemn gathering that remembered a colleague and called on John Holland to lift its game and grant proper access to their elected representatives.

Noonan says construction workers hold “way too many” marches and meetings just like those ones.

“It’s time decision-makers started to value these lives,” he said. “Showing companies like John Holland there will be consequences for an appalling safety record would be a good place to start.”

An edited version of this story is published at Working Life

Making plans with Nigel

TWO scathing Federal Court judgements seem unlikely to stop FWBC chief, Nigel Hadgkiss, drumming up talking points for Malcolm Turnbull’s election campaign.

Hadgkiss’ role was highlighted by April court decisions that labelled one anti-union action “an abuse of process”, and slammed his Fair Work Building Commission’s approach to another as “inappropriate”, “misconceived” and “unhelpful”.

CFMEU construction division secretary, Dave Noonan, says they expose Hadgkiss role as a “taxpayer-funded anti-union activist”.

Speaking out … Dave Noonan says FWBC involved in “serious corruption” of public policy

“The Liberal Party has given him a barrel of our money to attack workers and their unions,” Noonan says.

“Some of his cases have no prospect of success but he is always looking for precedents that might restrict the ability of workers to protect their safety and living standards.”

On April 7, Justice Darryl Rangiah called a Fair Work action against the CFMEU and at least four members, incited by Hadgkiss’ agency, an “abuse of process”.

He found the decision to act against the individuals – all targets of a discontinued earlier action by a major builder – “unjustifiably vexatious and oppressive”.

Three weeks later, the Full Federal Court, comprising Justices Bromberg, Buchanan and Reeves labelled a suite of FWBC actions, over right of entry allegations, “inappropriate”.

The full court overturned $275,000 in fines and took aim at Hadgkiss directly, labelling his approach “unhelpful” and “misconceived”.

Further, it found the FWBC had “mis-directed” the judge.

Significantly, it also raised concerns over Justice Geoffrey Flick’s acceptance of an FWBC contention that fines should be paid by individual union organisers.

This was a position embraced by Tony Abbott’s Trade Union Royal Commissioner, John Dyson Heydon, who recommended trade union members, including volunteers, be forced to pay civil penalties from their own pockets.

While this is both Heydon’s position and Liberal Party policy it has never been legislated by any Australian Parliament.

Although the Full Federal Court was not required to address this issue, after throwing out the FWBC allegations “in their entirety”, it was moved to describe the development as impractical and unnecessary.

Hadgkiss’ office suggested that ruling may be appealed and the man himself rejected any suggestion of anti-union bias.

“No, he said, “FWBC simply enforces the provisions set out in the Far Work Act 2009.

Hanging out … Nigel Hadgkiss (centre) with Queensland Liberal National Party hardliner Jarrod Bleijie (right)

“FWBC understands unions have a role to play within the national industrial relations system, however they must do so within the law.”

Critics, including Noonan, argue Hadgkiss drives a partisan political agenda.

They say the agency, under his leadership, puts new spins on legal understandings, blows technicalities out of proportion and clogs the courts with multiple counts arising from a single incident.

Certainly, the FWBC takes disputes settled years ago, and relitigates them. It even seeks to reinterpret the English language.

Hadgkiss engages in a relentless round of media and opinion leader engagements where he endorses key Liberal Party policies, including proposals rejected by elected lawmakers.

It is a radical departure from the traditional role of a public servant.

Elements of his tactics were evident in the cases recently thrown out by the court.

Right of entry was one example.

It is the provision of the Fair Work Act that allows union officials to visit members and, indeed, potential members. It provides rights and countervailing responsibilities.

Hadgkiss’ starting position is to try to reinterpret the meaning of the word ‘right’.

Despite the clear intention of legislators who named the provision, Hadgkiss argues, it is not a “right” at all but a “privilege”, and then, one that can only be exercised in severely restricted circumstances.

This is where technicalities and attempts to forge new case law kick in.

The FWBC continually tests the boundaries around “proper” right of entry behaviour. 

It contends, in court, that swearing, entering certain areas, failing to follow employer instructions, incomplete paperwork and even, being improperly dressed, are all “unlawful” actions.

A breach of any of these “requirements” opens an individual to a $10,800 fine. But Hadgkiss doesn’t stop there. He multiplies offences and adds on additional respondents.

If, for example, he alleges union officials improperly used right of entry provisions to help organise a one-hour stoppage over a sacking, or health and safety issue, this could lead to literally dozens, even hundreds, of “prosecutions”.

If, in this theoretical instance, half a dozen organisers visited each of four company sites twice, over a month, Hadgkiss would typically lay 48 counts.

The individuals would face eight actions, and potential fines of $86,400 each. 

On top, Hadgkiss typically lays a separate count against the state branch of the CFMEU which could be up for another $54,000, then, makes the same allegation against the national union, opening it to another $54,000 fine.

So, our one-hour stoppage, could easily result in 50 separate counts and fines of up to $626,400.

But, there’s more. This particular case could also lead to dozens of additional ‘general protections’ actions.

In the FWBC numbers game, general protections come hard on the heels of right of entry allegations. 

This is where it is alleged a person, or organisation, has denied another a “workplace right”.

Traditionally, this has been used to protect workers and independent contractors from harsh, unfair or discriminatory behaviour. But large employers have “workplace rights” too, as Hadgkiss has been quick to point out.

One he is particularly keen to police is the right “not to make” a workplace agreement.

This seems a bit counter-intuitive in an industrial relations system based on collective agreements where parties can be required to bargain in “good faith”.

The FWBC, however, has run dozens of cases claiming various union bargaining actions were “unlawful”. 

Better still, these allow Hadgkiss to pump out another press release alleging CFMEU “coercion”.

While the word might conjure up visions, in some minds, of a person’s feet being held over a naked flame or a battling employer being squeezed by the nuts until his eyes water, in truth it means no such thing.

It this context, it refers to exerting “unlawful” pressure to persuade someone “to exercise or not exercise a workplace right” , or, in common English, not to make a collective agreement or agree to a pay rise.

None of the resulting FWBC “statements of claim” involves criminal behaviour, and Hadgkiss accepts that.

“The penalties for breaching federal workplace laws have always been civil penalties,” he agrees.

But senior Liberal politicians including Turnbull, Tony Abbott, George Brandis, Michaela Cash, Peter Dutton and Eric Abetz continually conflate them with “criminality’, “corruption” or “thuggery”.

Indeed, on the very day Justice Rangiah was calling out Fair Work prosecutions as an abuse of process, former Employment Minister Abetz was talking about the “criminal activities of the CFMEU, as found by court ruling after court ruling”.

Interestingly, there is body of legal opinion that argues such actions should not even be termed “prosecutions”.

In 2012, Federal Court Judge John Jarrett, blasted the Fair Work Ombudsman for saying, in a press release, it was “prosecuting” an employer for underpaying a woman.

Justice Jarrett held it was “misleading” to refer to any civil penalty case as a “prosecution”. He ruled it was wrong because “the implication arising from it is of some criminality on the part of the respondents”.

This, in the context of a government agency “prosecuting” an employer, was sweet music to the ears of Senator Abetz.

In June 2013, the Tasmanian Senator used the Jarrett ruling to stand up in Senate Estimates and accuse the Fair Work Ombudsman of going about its work with “a bit too much testosterone”.

He then told the Acting Fair Work Ombudsman his future media releases should be less “robust” or “aggressive”.

Which pretty much sums up the cynicism of the whole political charade.

Election countdown

March-April 2016: Fair Work Building Commission (FWBC) has hundreds of civil claims served on CFMEU reps across Melbourne  and Sydney.

March 21: Prime Minister Malcolm Turnbull tells a snap news conference he has the Governor General’s permission for a joint sitting of parliament to reconsider Tony Abbott’s Australian Building and Construction Commission (ABCC) legislation

—  Turnbull’s formal letter to the Governor General cites the need for “strong measures to deal with widespread and systemic criminality” in the construction industry

March 21, 10.30pm: Attorney General George Brandis uses ABC’s Lateline to allege “almost 100 instances of criminal conduct by officials and members of the CFMEU” have been uncovered. The claim is, plainly, dishonest.

April 5: Hadgkiss files more than 150 separate civil penalty claims against 10 CFMEU NSW officials over a 2014 dispute at Barangaroo that had been formally resolved after hearings in the Industrial Relations Commission

April 6: Hadgkiss claims, via press release, the FWBC now has 108 CFMEU members “before the court”

April 7: Former Employment Minister Eric Abetz speaks of the “criminal activities of the CFMEU, as found by court ruling after court ruling”

—  On the same day, Federal Court Judge Darryl Ranniah labels Fair Work action against the CFMEU and four of its members an “abuse of process”

April 9: Turnbull announces that “as of this week” 108 CFMEU officials are before the courts

April 11:  Turnbull goes on current affairs program Insiders to repeat 108 CFMEU officials are facing court

April 18:  Federal Parliament is recalled and the Senate again rejects the Coalition Government’s ABCC legislation

April 27: Full Federal Court slams FWBC action against the CFMEU and two officials as “inappropriate”, overturns $275,000 in fines, labels Hadgkiss’ role “unhelpful” and “misconceived”

Sunday, May 8: Turnbull confirms a federal election will be held on Saturday, July 2

Low bar, no bar to media hacks

Dobbin … going low

HOLD THE PRESSES – a new contender, from right-field, has slipped into contention for worst media story from Tony Abbott’s royal commission against trade unions.

For nearly two years, it seemed the race would be fought out by runaway leaders Naughty Nick McKenzie and Slippery Stephen Drill.

McKenzie, racing under the joint ownership of Melbourne’s Age and the new-look ABC, had strung together an impressive series of results for those who wield political and economic power.

Playing fast and loose with ethical requirements for “fairness” and the “disclosure of all essential facts”, McKenzie used his twin platforms to amplify the voices of the dodgiest witnesses the trade union royal commission could find.

McKenzie’s shtick appeared to be running lengthy “investigative stories” based, almost entirely, on contentious anti-CFMEU claims that would soon re-emerge as royal commission witness statements.

Given royal commissioner Dyson Heydon’s repeated assurances that his commission did not leak to the press, we are left to wonder how this could possibly be.

McKenzie kicked off with sensational allegations from Melbourne Liberal Party donor and property developer,  Peter Chiavaroli.

Even in a debut 1000-word piece, co-authored with Mark Baker, McKenzie could find no room for the name of Thomas Kelly – the 46-year-old husband and father whose horrific death on a Chiavaroli-operated site provoked all the arguments and accusations that followed.

Royal Commission senior counsel, Jeremy Stoljar, would prove similarly reluctant to acknowledge Kelly, his life or death. 

McKenzie also ran anti-CFMEU tales run by convicted heroin importer Jim Byrnes, and introduced Andrew Zaf to a national audience.

Indeed, unsupported Zaf allegations that later turned to dross, helped McKenzie to a share of one of journalism’s prestigious Walkley Awards.

Zaf was a key “whistleblower” in a two-part series McKenzie presented for ABC Television’s 7.30 Report that also featured anti-union activist, Nigel Hadgkiss. 

Worthies associated with the Walkely Foundation must have squirmed as Zaf’s credibility, and key elements of McKenzie’s award-winning piece, were publicly shredded.

A former Zaf business partner told the royal commission McKenzie’s source had stabbed himself in an attack commissioner John Dyson Heydon was eager to see sheeted home to the CFMEU.

More than a year after Heydon made those views clear in his infamous “not like Toorak” intervention, his senior counsel told him police documents suggested Zaf’s injuries had, in fact, been “self-inflicted” and likely amounted to a “false report”.

This time around, Heydon listened in silence.

Witness, Gary Cheetham, said he had written to The Age and Sun Herald in a bid to alert them to the truth about Zaf but had been ignored.

 Zaf, himself, then coughed to falsely invoicing for tens of thousands of dollars, and receiving stolen property – a phone said to have belonged to Victorian CFMEU secretary John Setka – which he said he had delivered to his “friend” McKenzie.

People try to con reporters all the time which is where the media’s code of ethics is supposed to kick in. Properly applied, its principles should protect journalists, as well as the potential victims of shonky stories.

And, there was enough information on the public record to sound warning bells with the greenest cadet.

To give him his due, McKenzie conceded deep into the Byrnes “exclusive” that the source was a “deemed” heroin importer who had twice been banned from running public companies and had been a financial adviser to crooked businessman Alan Bond.

McKenzie, and his writing team, did not, however, mention that Byrnes had also been named by a coroner as a “person of interest” in a grizzly murder case, nor that she had labelled him “a liar, a bully, and an unreliable and manipulative witness”.

But, hey, even multiple award winners can’t cover all the bases.

The “investigative journalist” mantle was really wobbling , though, when Byrnes later admitted a multi-million dollar conflict of interest also hung over the story McKenzie’s team had swallowed.

With Zaf, the failure to do basic leg work was glaring.

His key corruption allegation against Setka was more than 20 years old. Neither it, nor a series of increasingly wild allegations, was supported by witnesses or documentary evidence.

Against that, big question marks over Zaf’s credibility sat on the public record for anyone who cared to look.

It only took a few hours to dig up the information in the second story here https://jiminnsw.wordpress.com/2015/11/04/knife-attacks-and-threats-to-the-australian-state/

Zaf also reeled in counsel assisting the royal commission but that is no excuse for investigative journalists. They are supposed to hold power to account, rather than cheerlead for it.

While McKenzie has thoroughbred pretensions, the Sun-Herald’s Drill is a run of the mill Murdoch hack.

Victorians called his bluff by tossing out a one-term Liberal State Government in the face of increasingly shrill Drill attempts to dirty-up the ALP through its union connections.

Another Drill story tried to link the building union to a late night assault on a royal commission solicitor, prompting Heydon, himself, to make it clear the incident had no connection to the woman’s work.

But Drill remains a genuine contender on the strength of an August 27, 2015 masterpiece in which, basically, he just made shit up.

He wrote the “CFMEU’s offices in Swanston Street have been raided by Royal Commission police, this morning”.

Of course, it never happened.

Everyone makes mistakes but the problem for Drill’s integrity will always be this line … “Rank and file CFMEU members at the office said there were several police there.”

Really, Stephen, did they?

Given the raid never actually occurred we are leaning towards this being a deliberate porky, and fundamentally unethical.

Then, just when the Royal Commission Credibility Stakes looked for all money like a two-horse race, up pops Patrick Durkin. 

Patrick Who? 

You might well ask.

The late entry, out of the AFR yard, will line up under the racing name Dobbin for reasons that will become all too obvious.

Under the headline, CFMEU received $700,000 from underworld figure George Alex company Durkin threw off all pretensions to objectivity to beat out the Tony Abbott/Royal Commission line.

“A labour hire company linked to underworld figure George Alex made more than $700,000 in payments to the Construction, Forestry, Mining and Energy Union, amid further revelations about union kickbacks,” he wrote.

“The details of the payments from 2013-14 are disclosed in documents filed with the Australian Electoral Commission. The revelations follow findings by Dyson Heydon’s royal commission that the CFMEU received “regular cash payments” of $2500 from labour-hire companies linked to Sydney crime figure George Alex …”

This, in racing parlance, was horseshit.

The $700,000 was certainly listed in documents filed with Australian Electoral Commission. As an “associated entity” the CFMEU is required to list every receipt it writes for more than $12,400. 

The AEC website from which, presumably, the information was lifted has a clear warning for the likes of Durkin.

“Associated Entities must give details of all receipts above the disclosure threshold. Many of these receipts are not donations …

“It is recommended that you read the Glossary for terms that are used in the Annual Returns Locator Service to ensure correct interpretation of information provided.”

We will never know if Durkin read on or not. What we do know is the payments he cited were clearly listed as “Other”, as opposed to “Donations”, and, for whatever reason, he either misinterpreted the data or decided to be very naughty indeed.

The actual facts are these   …

—  The $708,440 listed against Active Labor was a series of back payments won, during the course of the financial year, for more than 100 underpaid workers

—  The $50,000 listed against Metropolis Traffic Control was backpay for workers at another Alex-linked company which Durkin obviously didn’t recognise

—   Significant elements of the $220,000 listed against Steve Nolan Constructions were also underpayments recovered for Alex employees from the head contractor

—   These monies are part of $2.2m the CFMEU has recovered from Alex Group companies and paid to its members over the past three years. The breakdown is set out in an affidavit held by the royal commission

Durkin’s “story” wasn’t even news. It was written, accurately, 18 months earlier, here A million questions for royal commission

But there was another serious problem with Durkin’s effort.

On the one hand, he was aware of a strongly-contested finding of $2500 a week in bribes from a politically-constituted royal commission, allegedly for a cosy run from a union. On the other, he was staring at a documented series of wage recoveries, topping $1 million in a single year, achieved by that same union.

Go on Dobbin – do the maths!

Instead of recognising the obvious news angle and questioning, even gently, the way this royal commission has exercised its powers, the senior journalist, AFR’s Melbourne Bureau Chief, chose to spend the rest of his story trotting out the official royal commission line.

For more than 200 years, unions and the media have been key institutions protecting society from the worst abuses of power and wealth. They have both scored major successes.

Abbott’s royal commission was designed to weaken unions so they could no longer effectively defend living standards and it has done some damage.

In the process, it has shown Australia’s mainstream media is gone as a positive force.

During the royal commission, the work of notable individuals shone through. But, as a whole, the media overwhelmingly chose to back power rather than question it – even when it bullied or abused process.

Operatives like McKenzie and Drill set a low bar and Durkin did his best to slither under it.

But they were not alone. Far from it.

Police target women in their homes

DISTURBING evidence about the trade union royal commission taskforce is emerging in the wake of three CFMEU employees being targeted in their Brisbane homes.

Sources  suggest lawyers are being intimidated,  agreements between parties to legal disputes are being torn up and minor technical charges are being filed as the 57-strong police taskforce tries to secure its first conviction.

Right now, nobody is speaking on the record but disturbing claims about partisan policing are certain to emerge when the dust settles.

In September, CFMEU finance officer Cherie Shaw told the royal commission she had taught her eldest boy how to contact lawyers in case she was arrested and taken away.

She said she took that step after taskforce officers grilled her for 75 minutes in front of her partner and four children.

She was one of at least four union admin staff shaken by unannounced, night time visits from federal police in the first week of September.

Another woman, married to a Queensland police officer, described the attention as “pretty horrible”, while a third, intercepted in the Customs Hall at Brisbane Airport, felt she had been “humiliated”.

At least three of the four had requests for legal representation brushed by police, they told the commission.

Ms Shaw said her family was finishing dinner, around 8.30pm, when police barged into their home. She said she had no warning and had been “extremely nervous”.

She said she asked to contact lawyers but was told there was “no need because they were just going to ask me a couple of questions”. However, the two officers questioned her for another hour and a quarter.

“Afterwards, I didn’t want to be at home, I didn’t want to be at work. I didn’t want to be by myself in case they turned up again, and … I had to tell my 14-year-old if he was ever home and I was not home, if the police turned up he had to ring lawyers to let them know what was going on,” Ms Shaw said.

“Because, I feared that they would turn up again and that I might be arrested.”

Media officer, Jessica Kanofski, who started with the Builders Labourers Federation (BLF) as an office junior eight years earlier, was distressed and more than a little angry about the way she felt federal police had used her husband, a serving Queensland police officer.

A: They came to my house with my husband who they picked up from work.

Q: Do you know how they came to be speaking to your husband?
A: No. They just turned up at his work and called him off the job, because he’s a police officer, and then escorted him to our place and spoke to me.

Q: How did you feel?
A: It was a pretty horrible experience. I was very shaken up by it. The last thing you expect is for your work and personal life to be sort of mixed together.

In a later interview, she expanded on that concern.

“They pulled my husband off the job and made me feel I was backed into a corner and had no option about speaking to them,” Jessica said. “At the time, I didn’t think it was the right thing but I felt I had to.

“You just don’t expect this. I was freaking out, I was very, very nervous.

“They kept waving a piece of paper in my face and telling me I could go to jail if I accidentally left anything out of my statement.

“They were fishing and, I think, they thought I was going to be the weak link because my husband was a copper. That really did get to me.”

Ms Kanofski said there was no doubt allegations from political foes of the union had put pressure on the young couple’s marriage.

She said she and her husband held different political views and that was fine but she drew the line at people using him to get to her.

Ms Kanofski also revealed she had limited confidence in police assurances her interview had not been recorded.

“I asked and they said it wasn’t being recorded but I still think, probably, it was,” she said.

“Honestly, I don’t know but they asked me virtually the same questions I was asked in the royal commission and I gave them the same answers.”

Industrial Officer Michelle Clare got the shock of her life at the end of an exhausting flight home from Europe, via the middle east.

Customs officers pointed her to three people who introduced themselves as “part of the Trade Union Royal Commission”.

Police made it clear they knew who she was and the time her plane had been scheduled to land.

Ms Clare told them she wanted a lawyer but “they told me only people being investigated require a lawyer and I wasn’t being investigated”.

“I had my parents waiting in the arrivals lounge,” she said. “I managed to send my father a message when I was being questioned that I was … well … something was wrong, just so he knew.”

Q: How did you feel?
A: Humiliated

The women were grilled as the commission sought information to support its theory that this year’s annual office clean-up was really an attempt by branch secretary, Michael Ravbar, to evade a Notice to Produce – a criminal offence punishable by up to five years in prison.

The commission used allegations from a secret recording of former union official David Hanna. He was lashing out at Ravbar as he sought to cut a deal during an internal investigation into behaviour his political rival alleged had been corrupt.

Hanna’s BLF had amalgamated with the CFMEU on the very day of the office clean-up – April 1, 2014. This was also the day the royal commission said its notice to produce should have landed in Ravbar’s email inbox at 4.16pm.

Ravbar told the commission the CFMEU office had been a mess, thanks in no small part to 15 new staff going onto the payroll that day, renovations still being finished and hundreds of boxes of assorted material arriving with the Builders Labourers.

He said he had been going through material for days and that, on April 1, he had stood at a work bench all afternoon and into the evening ensuring material for the dump was either “crap” or supported by electronic copies.

Ravbar said he had ascertained there were back-up versions with relevant senior staff Paula Masters, Jacqui Collie and Ms Shaw. He said he hadn’t checked his emails until the following morning.

Those women all supported Ravbar’s version of events, in the face of aggressive questioning from royal commission senior counsel Sarah McNaughton

It wasn’t lost on observers that three of the four admin staff police had confronted at night had come across with Hanna as a result of the amalgamation.

Despite that, every one of them, including one who has since left the union to work for a cleaning company, gave strong evidence that the clean-up appeared routine and above board.

None of them supported a royal commission theory Ravbar would have appeared panicked. None heard any discussion about a Notice to Produce.

Ms Kanofski said federal police actions had made her “feel like a criminal”.

“I think we all felt like that. We felt we were being intimidated but, at the end of the day, we had nothing to hide.”

And, for her personally, she conceded, there had been a tinge of sadness.

“The whole situation was pretty disappointing really,” she explained. “I have been doing this work for eight and a half years and I really believe in it.

“Dave Hanna introduced me to this world and made me passionate about the work we can do for our members.

“It was a sad day but all I could do was in go in there and tell them the truth.”

A judiciously edited version of this story appears at Commission Watch

Zaffed: Witness takes knife to commission’s credibility

Secret report … what is the true role of Andrew Zaf?

ANTI-UNION activist Andrew Zaf stabbed himself with a Stanley knife and loosened wheel nuts on his own vehicle in a bid to frame the CFMEU, Tony Abbott’s trade union royal commission has heard.

The sensational testimony of Zaf’s former friend and business partner, Gary Cheetham, strikes at core narratives this royal commission has been developing.

It also reinforces doubts about the way it has gone about its work and swings the spotlight squarely back onto controversial commissioner, John Dyson Heydon.

Cheetham, who worked with Zaf between 2011 and 2012, said Zaf told him he had sat in his car, stabbed himself, then smeared blood over the tray of his ute to make it look like he had been beaten up.

He had been “angry and surprised” when a female police officer questioned him over the possibility his wounds had been self-inflicted.

Cheetham said Zaf had admitted inventing corruption allegations against CFMEU Victorian branch secretary, John Setka, which had been aired on the ABC’s 7.30 program then repeated, with embellishments, for the royal commission.

During their time working together, he said, Zaf seemed obsessed with attacking the CFMEU and Setka. It appeared, the witness said, to stem from a belief that a former Setka girlfriend had been responsible for one of Zaf’s bankruptcies

Cheetham also alleged Zaf had illegally dumped asbestos, vandalised his own machinery to get a $60,000 insurance payout, and attempted to defraud developer Stocklands. 

He said Stocklands had rejected an $81,000 Zaf invoice on the strength of information he had provided.

Zaf rejected much of Cheetham’s testimony as “lies and rubbish”. However, he did admit submitting a false invoice to Stocklands, and receiving at least one stolen CFMEU phone which, he said, he then delivered to his “friend” Nick McKenzie at Fairfax Media.

Zaf said a person he knew as “The Devil” had offered to get him a phone once owned by Setka. He gave it to McKenzie to see if he could extract data from it, and to pass on to his police and royal commission contacts. 

Zaf gave this evidence only minutes after denying he planned to hurt Setka and the CFMEU as much as he could. “Absolutely not,” Zaf insisted.

Zaf also told the commission he and McKenzie had used secret agent-style dead drops to pass information to one another during their campaign against the construction union.

Commission senior counsel Sarah McNaughton conceded Victoria Police had started investigating the possibility Zaf’s wounds had been self-inflicted even before Cheetham had come forward and asked to make a statement.

She said a note from a senior police officer stated evidence relating to the incident indicated “a false report had been made” and that a medical report cast further doubt over Zaf’s claims.

The police forensic medical report revealed “no record of blunt trauma injury” in Zaf’s hospital assessment.

It added, it was “so unlikely as to be improbable” there would have been no visible injury from a blow to the head severe enough to have caused his “reported blackout”.

Heydon heard all this in relative silence, more than 15 months after he had helped generate wall-to-wall media coverage for Zaf’s original stories.

It was Zaf, first time around, who prompted Heydon’s notorious query about his residential address – “it’s not like Toorak, but it’s a sort of law-abiding suburb?”

That intervention, and the remarks that followed, marked Heydon down as more than a snob. They raised serious concerns over the processes he was presiding over and the first mutterings about bias.

Zaf’s original story verged on the incredulous and the fact the commission chose to put in on the record and broadcast it live, without any apparent effort to weight its merits, seemed incredible.

Essentially, it asked Zaf to repeat the televised claim he had made for McKenzie that, 20 years earlier, he had bribed Setka, then a junior union organiser, with a free roof.

There was no record of Zaf having ever raised this allegation at any stage in the intervening decades and there was no supporting evidence of any type. But those facts appeared to bother the commission no more than they had concerned McKenzie.

And Zaf went further for the commission, much further.

He alleged his television appearance had led to a relentless campaign of violence and intimidation.

He said that, in short order, he had been assaulted by a man he knew to be a CFMEU organiser in a hotel, the wheel nuts on his car had been loosened and he had been followed home, beaten, and knocked unconscious in broad daylight by a number of assailants whom he had been unable to identify. 

He did, however, recall that, before he lost consciousness, one of them warned –  “you’re dead”.

This was serious stuff and, critics insisted, a quasi-judicial body with a mandate to get to the truth should have subjected it to some level of scrutiny.

Again, there were no witnesses to any of Zaf’s alleged misfortunes.

The commission did not tender medical records of any kind.

It didn’t appear to bother the commission, or the commissioner, that Setka had publicly rejected the allegations. Nor did it seem to worry them that Zaf had significantly altered his story to omit the stabbing at the heart of its original media outings.

Quite the opposite, in fact. In an extraordinary intervention from the bench the commissioner gently led Zaf back through the “highlights” of his testimony. Testing a witness

THE COMMISSIONER:  As I understand it … isn’t the chronology this: In January 2014 you were involved in a 7.30 Report broadcast on the ABC in which criticisms were made of the CFMEU. Right?

A. Yes, sir.

Q. Then a few weeks later you were having a drink in a bar and you saw a CFMEU organiser there, whom you knew. Correct?

A. Yes, sir.

Q. And he told you to “fuck off”?

A. Yes.

Q. And you went up to him and said, “Let’s sit down and have a drink and talk about it”, right?

A. Yes.

Q. Then he told you to “fuck off” again, and then you went to walk through a doorway carrying your drinks. Right?

A. Exactly.

Q. And then he slammed the door and your drinks went onto the floor?

A. Well, they splashed over the floor, sir.

Q. Then two days after that, or a day or two after that, you were driving your car from home to the local shops?

A. Correct.

Q. And you felt it shaking?

A. Yes, sir.

Q. And you stopped and found that the nuts in the front left wheel had been loosened?

A. That’s right.

Q: Then a little after that, perhaps a few days, a short time after that, you arrived home from work at 1 or 1.30, and you were hit on the head to the point of unconsciousness?

A. Correct.

Q. Do you have any personal enemies?

A. No, sir.

With that, at 12.30pm on July 9 2014, the commissioner abruptly shut proceedings down.

He had made it clear where his sympathies lay and journalists around the land had only one story to work with.

Within a week, however, the man with “no personal enemies” was back in the news after being bailed-up on a building site by baseball bat-wielding bikies trying to collect what newspapers described as an “industry debt”.

And, when Zaf finally put a name to his hotel assault allegation, it belonged to a 72-year-old union activist who was not a CFMEU organiser at all.

Worse though, for Zaf’s credibility, this alleged assault should have occurred right in front of the hotel’s security cameras and footage seized by the police revealed no such incident. 

But wait, potentially, there is even more to this story.

Heydon has provided the federal government with a secret third volume of his interim report.

It has been kept from the eyes of the public and their elected representatives because, Heydon said, its contents posed “grave threats to the power and authority of the Australian state”.

In efforts to get Independent Senator Jacqui Lambie over the line on Liberal Government demands for sweeping coercive powers for its Fair Work Building Commission, Abbott hinted darkly about the contents of Heydon’s “secret” report.

“As you know, the Hon John Dyson Heydon AC QC recommended that this volume be kept confidential in order to protect the physical well-being of Royal Commission witnesses and their families,” the then-Prime Minister wrote to Lambie on August 12.

“At this time, I can advise that the confidential volume reports on threats of violence, and an act of violence, against witnesses called or likely to be called to give evidence before the Royal Commission…

“This is the context for Commissioner Heydon’s statement in his report concerning grave threats to the power and authority of the Australian state. They are indeed serious matters.”

You would hope this royal commissioner, and the government he serves, aren’t fretting about “grave threats to the power and authority of the Australian state” on the word of Andrew Zaf.

For the record

Zaffing around … for the ABC’s 7.30 Report

A COMPANY operated by star royal commission witness Andrew Zaf was convicted and fined for illegally dumping cancer-causing asbestos.

In 1999, Zaf company, Esselyn, was convicted in the Williamstown Magistrate’s Court of obstruction, then failure to comply with an Environmental Protection Notice, after it was found to have dumped contaminated soil and asbestos at a site in West Footscray.

Esselyn was fined $10,000 and aggravating factors saw company directors fined individually.

Critics of the trade union royal commission say it appears no serious effort was ever made to weigh Zaf’s credibility before he was invited to make sensational allegations against CFMEU Victorian branch secretary John Setka and the union as a whole. 

The Esselyn prosecution was just one of the warning signs royal commission investigators would have found on the public record if they had bothered to look.

A quick check would have tipped them off to similarities between Zaf’s business record and behaviours typically exhibited by phoenix operators who, according to the Australia Taxation Office, unlawfully strip billions of dollars out of state and federal coffers.

Company records show Zaf was a director of 11 separate businesses that opened and closed their doors in the years leading up to 2003. And, that a number of different Zaf enterprises traded under very similar names.

A moderately competent investigator would have learned that Zaf had gone bankrupt at least twice.

The record suggests he started out operating businesses with his father and that, in the late-1990s, BHP won a $1.75m Federal Court order against one of their companies, with the judge describing his father’s evidence as “contradictory and unreliable”.

In 2001, Supreme Court of Victoria records recount a complex case with echoes of allegations Zaf would later make against Setka over the supply of roofing iron.

Zaf company, TZ Metroof, eventually found itself in the Court of Appeal over a contractual wrangle, hopelessly complicated by his unorthodox business practices, including alleged contra deals worth more than $50,000, a time.

None of the many contested deals in this case appeared to have gone through company books.

The judge was mystified, according to court records, by Zaf having dealt with the respondent company as himself and, at various other times, he claimed on oath, as a director of TZ Consolidated Industry Pty Ltd, TZ Metal Building Products Australia Ltd, Metroof Pty Ltd, Metroof Industries Pty Ltd, TZ Metroof Pty Ltd, and a family company called Silverene.

“It would appear,” the judgement reads, “that Mr Zaf was playing the defendant and plaintiff off against one another.”

Eventually, the judge called the contest a draw, conceding that, at times, he couldn’t be certain which Zaf company was involved or, whether or not at different relevant times, named Zaf entities had still been in existence.

Court records show that Zaf companies appeared in a string of actions in a host of jurisdictions between 1985 and 2001.

These cases ranged through the Federal Court and Victorian County, Magistrates, Supreme and Appeal Courts and mainly seem to have centred around allegations over unpaid bills and contract disputes.

At the time of his first royal commission appearance, company records suggested Zaf was operating three related businesses – Omicron Building and Earthmoving, Omicron Resources Management and Omicron Resources.

And, if commission investigators had really wanted to know about their star witness and his attitudes to trade unionists, they might have tracked down a 1994 Victorian Trades Hall minute that records Zaf apologising for pulling a gun on a union organiser and agreeing not to threaten union officials in the future.

For more stories about Tony Abbott’s royal commission, check out Separating facts from fiction

No joke for Kathy’s Clowns

Stepping out … commission favourite Kathy Jackson with cheerleader Michael Smith (ABC photo)

KATHY JACKSON nicked at least $1m off health workers the Federal Court has found in another devastating blow to the credibility of Tony Abbott’s royal commission against trade unions.

The timing of the decision could hardly have been worse for the Prime Minister or his hand-picked commissioner.

It came two days before John Dyson Heydon was to hear three separate applications that he relinquish his commission because of bias.

They were brought after NSW Liberal Party branches started promoting Heydon as the star attraction at a function that would direct all proceeds to “state election funding”.

Applicants sought to test whether this involvement with the Liberal Party could suggest bias to a reasonable observer.

But the Federal Court findings against Jackson went directly to concerns about the way Heydon has conducted the commission itself.

Jackson, remember, was greeted by his royal commission as a “whistleblower”.

She arrived with impeccable references. Not only was she the partner of Abbott’s own pick for Fair Work Commission vice president, Michael Lawler, but the Prime Minister had, more recently, lauded her as “heroic” and “brave”.

His Education Minister, Christopher Pyne, had stood in the federal parliament and eulogised her as a “lion of the union movement”.

Aggressively anti-union columnists and broadcasters like Miranda Devine and Michael Smith threw themselves into the Jackson love-fest.

Smith, a key agitator for the establishment of the royal commission, used one of Australia’s highest rating radio programs to defend the indefensible Alas Smith and Jones

Meanwhile, Jackson was polishing her own credentials with a guest appearance at the anti-union HR Nicholls Society where she dined with Peter Reith – the man who orchestrated the notorious 1998 waterfront dispute.

At first, Jackson played the commission like it was just another fiddle.

She hit all the right notes with accusations against Labor Party leaders and prominent Victorian unions. The commission did not ask her to support her headline-grabbing accusations with hard evidence.

Jackson ran one of the commission’s favourite lines when she alleged she had been intimidated for her bravery. Sobbing in the witness box, she claimed a shovel had once been left outside her door.

She was kid-gloved through her initial testimony by senior counsel, Jeremy Stoljar, who then turned around and subjected her union opponents to aggressive, confrontational examinations.

Stoljar’s approach lent weight to one of the biggest criticisms of this commission – that it has hopelessly confused its mandate to inquire with a desire to prosecute predetermined case theories.

When Jackson faced more aggressive questioning in a second appearance, following widespread media revelations about her activities, she complained this was not the treatment she had been led to expect.

The commissioner adjourned proceedings before union lawyers were able to fully test her evidence.

Nevertheless, the commission had heard more than enough to weigh the possibility of negative findings.

It had heard Jackson abused credit cards on an industrial scale and had rorted underpaid hospital workers, to the tune of a quarter of a million dollars, to help fund her lavish lifestyle.

Yet, when Heydon furnished Abbott’s Government with an interim report, last December, Jackson’s misadventures failed to make the cut. All she got was a passing mention.

On the other hand, Heydon recommended all sorts of criminal charges against officials from militant unions including, memorably, at least one person who was never called to give evidence or to answer any allegations.

Senior counsel’s final submissions underlined the feeling that something was amiss.

Because of flagged federal court action against Jackson, Stoljar submitted, the royal commission should give her a miss.

“The starting point,” he announced “is that this commission has not sought to reinvestigate matters that are, or have been, the subject of litigation.”

The principle was simple and, to many observers, sound.

The trouble was, as soon as Stoljar sighted Abbott’s enemies at the CFMEU, he biffed it overboard.

The same submission tore into the CFMEU and its members on three separate issues Stoljar knew were subject to legal actions in other jurisdictions.

Not only that, he urged the commissioner to recommended criminal charges against at least 10 named people, arising from those case studies.

Now, as the royal commissioner stands accused of bias, a real court has delivered devastating findings on issues his commission was unwilling or unable to address.

Right’s million dollar baby exposed

Dinner date … Jackson and Reith

RORTING the trade union royal commission tried to kick into touch has been laid bare at the Federal Court in Melbourne. And the numbers are mind-blowing.

In August, the court ordered Jackson to pay $1.4m in compensation to the Health Services Union and its members.

The court found Jackson had cashed cheques worth more than $240,000 from a “slush fund” for personal spending. This presumably was the notorious “Peter Mac” money her union opponents had tried to draw to the attention of Abbott’s royal commission against trade unions.

They alleged Jackson had allowed Melbourne’s Peter MacCallum cancer hospital to pay $250,000 to settle millions of dollars it owed underpaid workers.

But, they said, the settlement never went into union accounts, much less the pockets of affected health workers, but into an ‘off line” fund Jackson used for own personal and political spending.

The Federal Court also found she had splurged more than $300,000 of HSU members’ money on luxury goods, grog, food and other retail purchases.

It found she had improperly spent another $175,000 on trips and holidays around Europe, Asia and the Americas.

These were some of the headline numbers in a judgement that found Jackson owed the HSU $1,338,626 along with another $67,912 for salaries she had not been entitled to.

On top of that, the court ordered her to pay interest and meet the HSU’s legal costs. Her total bill is expected to top $2m.

The problem, now, for long-suffering health workers is that, faced with mounting legal bills, Jackson declared bankruptcy in June.

Her partner, Michael Lawler recently attempted to move the couple’s luxury beachfront home on the NSW south coast from Jackson’s name to his but that transfer, at least, was blocked by the Federal Court.

Dyson sucks air out of union inquiry

   

Under the pump … John Dyson Heydon

“It is fundamental to the administration of justice that the judge be neutral.

 ”It is for this reason that the appearance of departure from neutrality is a ground of disqualification … because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick.”

High Court Justices Heydon, Kiefel and Bell 2011

“Oh really, Mr Heydon!”

There is a moment of silence as the practiced incredulity bounces off the wooden panels.

Then Jeremy Stoljar, senior counsel assisting at Tony Abbott’s royal commission against trade unions, fixes the witness with a trademark sneer.

Well, not really, but he might well have done if John Dyson Heydon had been a trade unionist rather than a royal commissioner and a colleague at Selborne 8 Chambers in Sydney’s most prestigious legal precinct.

And Stoljar would almost certainly have gone into his “oh really” routine, if Heydon had been in the witness box when he attempted to rationalise evidence that would lead to calls for him to step away from his commission because of bias or, at the very least, perceived bias.

It was August 13 when Sydney Morning Herald reporter, Latika Bourke, broke news that the man Abbott had appointed to conduct a damaging public investigation into his trade union opponents was being touted as the star turn at a Liberal Party fundraiser.

Heydon was listed to deliver the Sir Garfield Barwick Address, named in honour of a Liberal Party icon and former federal Attorney General, at the Castlereagh Boutique Hotel on August 26.

“All proceeds from this event will be applied to state election campaigning,” the invitation from one of the party’s legal branches stated.

The implications were obvious and royal commission staff dived for the damage control button. At 11.22am spin doctor, Adrian Kerr, hit send on an email that announced Heydon had bailed out of the Liberal Party engagement.

“As early as 9.23am this morning (and prior to any media enquiry being received) he advised the organisers that ‘if there was any possibility that the event could be described as a Liberal Party event he will be unable to give the address, at least whilst he is in the position of royal commissioner’,” Kerr announced.

Bourke wrote that her news organisation had made inquiries about the commissioner’s intentions at 9.35am that day.

But, hey, cut the man some slack. What’s 12 minutes between friends even if Heydon had actually agreed to do the gig more than a year earlier, shortly after accepting his commission from the Abbott Government.

But, if August 13 had been bad for the commission’s credibility, Monday August 17 would turn into a shocker.

On that day, Heydon acceded to a formal Australian Council of Trade Unions (ACTU) application to hand over documents relating to his Barwick lecture.

At the time, counsel assisting had Abbott’s favourite target, the CFMEU, in the box but the attack was repeatedly interrupted as the ACTU sought to intervene and Heydon tried to explain his actions.

The peak body said it wanted his documentation to decide whether or not it should apply for the commissioner to disqualify himself. This provoked testy exchanges between Heydon and ACTU lawyer, Robert Newlinds.

Appearing increasingly angry, Heydon questioned the right of the ACTU to be heard before his trade union commission. “Don’t you think that it is rather irresponsible to come before a busy body of inquiry?” he snapped.

Heydon then appeared to try and bounce the ACTU, insisting it make up its mind on any stand-down application within an hour.

When the ACTU solicitor reappeared at 1.30pm and announced he needed more time because he had not received instructions from his client, senior counsel flew off the handle.

Stoljar accused the union body of “grandstanding” and said it was responsible for the hearing “degenerating into a shambles”.

But it was Heydon’s attempts to explain away his behaviour that ensured the second application would proceed and the issue would turn into a media frenzy.

He confirmed he had agreed to give the speech, last year, after an approach from a Liberal Party branch but claimed that when he had received its reminder, in March of this year, he had “overlooked” the party political connections.

He had also “overlooked”, he said, having made his acceptance conditional on the royal commission having finished its work.

However, the correspondence he released from 2014, made it crystal clear who the organisers were and exactly where any funds would be going.

A subsequent email from long-time associate and Liberal Party branch president, Greg Burton, advised Heydon his address was being staged while parliament was in recess to try to get more MPs along.

In June, more than two months before he pulled the pin, Heydon was sent an email promoting the event. A leaflet attached showed his photo and a donation form below a Liberal Party logo.

Heydon said he hadn’t read the attachment. However, the email itself had carried the subject line: ‘FW: Liberal Party of Australia (NSW Division) – Lawyers’ Branch and Legal Policy Branch”.

Heydon’s right wing credentials were scarcely a secret when he was appointed to his royal commission job.

He had been a legal adviser to an anti-republican organisation, headed by Tony Abbott, and his 2002 address to guests at a dinner hosted by hard-right publication Quadrant was viewed in legal circles as a job application to the Howard Government.

Four months later, he was sworn in as a judge of the High Court.

In the years before his retirement from that role, at age 70, Heydon became the court’s arch dissenter, swimming against the tide in nearly 50 percent of the cases he heard.

On matters of taxation, economic policy and corporate rights, Heydon took a classical Hard Right, almost neoliberal, approach. He dissented from the majority of the court, in 2009, on the government’s right to introduce stimulus measures to combat the Global Financial Crisis.

And he also dissented on whether or not the plain packaging of cigarettes was constitutional.

He said that public health policy, designed to stop youngsters smoking, effectively told tobacco company owners:

“I want to stop you using the intellectual property in very large measure, and command you as to how you are to use what is left of your property, not with a view to making profits in your business, but with a view to damaging them by making the products you sell unattractive; I will therefore take over control of your intellectual property and chattels from you.”

But the apprehended bias case is different again.

The evidence suggests Heydon has chosen to maintain an active involvement with a political movement strongly opposed to trade unionism while taxpayers are tipping a reported $1m a year into his bank account so he can inquire into trade unions on their behalves.

CFMEU construction division national secretary, Dave Noonan, said the royal commissioner and the government had been left with no real choice.

“They need to shut this charade down now,” Noonan said. “We never accepted the reasons behind this royal commission which was established to provide a justification for slashing incomes and reducing safety standards.

“The CFMEU has maintained from the outset, the commission has displayed a bias against our members and other trade unionists.

“Our witnesses have been repeatedly denied natural justice, while antagonistic witnesses have been invited to make serious allegations without having their credibility tested in any way.

“Now, the partisan nature of this commission has been laid bare. No fair-minded person could have faith in these proceedings given the links that have been exposed.”

Neither Heydon, the royal commission nor the Abbott Government needed Noonan to tell them they had a serious problem.

Besides the implications for their credibility, if they try to brass it out, “overlooked” will become the standard defence for every witness that comes before their inquiry.

It would be embarrassing for the commissioner and Stoljar, likely, will go redder than ever as he delivers his predictable response.

A judiciously edited version of this story is available at Commission Watch – separating fact from fiction

Excuses, excuses … thumbs up for safety hoons

“Dean, if you look hard enough, you will find some safety risk because it’s a construction site, but that doesn’t mean there is an issue.”

These 25 words undermine a three-year government campaign to turn around the worst construction industry safety statistics in Australia.

But Jeremy Stoljar, the senior counsel assisting Tony Abbott’s royal commission against trade unions, liked them so much that a matter of seconds later, he chose to repeat them for the benefit of the commissioner and, indeed, a live broadcast audience.

Stoljar: You told your counsel, Mr Morison, that you couldn’t remember what (CFMEU secretary) Mr Hall said in response to that. When you said those words:

“Dean, if you look hard enough, you will find some safety risk because it’s a construction site …”

It was the beginning of a lengthy re-examination of one of a number of employers with dodgy safety records Stoljar called to give evidence against building unions in the ACT.

Using more than 4000 words, across pages of testimony, Stoljar got Sam De Lorenzo, owner of commercial builder Delorco, to square off for hazards depicted in photos taken on the day he had blocked CFMEU representatives from accessing a site at Erindale.

The photos illustrated a multitude of failings, from electrical and trip hazards to unprotected holes, and planks, set end to end, over what in evidence was described as “something like a ditch”.

In the course of cross examination by union counsel, John Agius, De Lorenzo conceded the scale of the problem.

Q: That represents a safety hazard does it not:
A: Yes.

Q:  You agree they indicate safety risks, do they not?
A: Yes

Q:  That lead itself presents as a trip hazard; you agree with that?
A.   Could be, yes, absolutely.

Q. But that one wasn’t protected, we can see, at the time the photograph was taken?
A.   No.

Q. That situation presents as a safety risk, does it not?
A. Yes.

Q. And it’s entirely inappropriate, isn’t it?
A: Yes.

On and on it went.

At one point, discussing a lack of edge protection, De Lorenzo conceded “the set-up is not safe in its entirety”.

But that was never going to sit comfortably with Stoljar whose final submissions appear certain to recommend that workers’ representatives be either written out of the safety script entirely or, at the very least, have existing rights severely curtailed.

In the course of his re-examination he got De Lorenzo to describe safety issues at Erindale as “unfortunate” and “housekeeping” matters. By the end of it, he had him attributing the blame to workers, sub-contractors and, memorably, the weather.

Delorco was just one of a number of Canberra companies with questionable safety credentials the royal commission chose to run its agenda off the back of.

Other employers testified they had sought to block authorised safety representatives with the support of Nigel Hadgkiss’ Fair Work Building Commission (FWBC), while some said they had been advised to use police to try and have them thrown off their sites.

When, finally, unions got a chance to cross examine these witnesses, Stoljar tried to downplay the safety failings they exposed.

Towards the end of the Canberra hearings, he adopted a strategy of getting his retaliation in first, asking anti-union witnesses to admit to their safety indiscretions before union lawyers got a shot at them.

Petar Josifoski, owner of scaffolding company MPR, was a classic example. Stoljar had him along to relate claims of “price fixing” at EBA meetings.

At the top of his evidence, Josifoski conceded he had lost his scaffolding license after an apprentice was injured on one of his jobs in 2013 and, even more recently, had been forced to cease work by the regulator while pressing safety hazards were fixed.

Over pages of evidence, Stoljar asks Josifoski to explain why these defects were not really his fault and to confirm he is a responsible sort of guy in the safety department.

Stoljar’s approach to safety flew in the face of a concerted ACT campaign to clean up its construction sector.

In 2012, against the background of three fatalities in the space of a year, the territory government appointed Work Safety Commissioner Mark McCabe and former Public Service Commissioner Lynelle Briggs to inquire into compliance with, and the application of, WHS laws in ACT construction.

Their Getting Home Safely report was scathing. It found that, besides the deaths …

• each year, one in 40 ACT construction workers sustains an injury that keeps them off work for at least a week
• the territory’s serious injury rate was 31 percent higher than the national average
• the industry’s long-term injury perfomance was 50 percent worse than most other Australian jurisdictions

The report found ACT construction had a “distressing safety record for a small jurisdiction”.

It accused industry players of being “surprisingly accepting of workplace injury” and called for an end to a culture of excuse-making and complacency.

The authors warned the regulator was under-resourced and that safety didn’t get the priority it deserved because of the “strong view” that it was “just another cost add-on for a highly competitive industry to bear”.

In a bid to turn that situation around, less than two years ago, the ACT Government accepted all 28 recommendations set out in the Getting Home Safely report.

Then Tony Abbott’s royal commission came to town.

One of its key Canberra witnesses was Master Builders Association ACT industrial relations director, John Nikolic, a hardliner uncompromising in his opposition to union involvement in the industry.

In testimony, Nikolic lashed the CFMEU for its safety compliance work and derided its reports “if you could call them that” to Worksafe.

Then, under cross examination, he admitted he hadn’t even bothered to read the Getting Them Home safely report.

“I’ve seen it, I haven’t read it,” Nikolic told the commission.

Q: You didn’t read it?
A: No.

Q: In what circumstances did you see it and not read it?
A: Well, I’m aware it exists.

Q: Did you not think it important to read it?

That question, predictably, was rejected by the commissioner.

An earlier version of this story appeared at Commission Watch – separating a little fact from a lot of fiction

Lomax still doing the hard yards

Scapegoat … Johnny Lomax (Photosport picture)

JOHNNY LOMAX has been making headlines in Canberra for nearly a quarter of a century.

Twenty two years before he was scapegoated by a long-running political campaign to criminalise trade unionism, he had the national capital talking.

And that story is nearly as incredible as the fact he now faces a 14-year jail sentence for winning a wage increase for painters that, according to the police charge sheet, caused their employer to suffer a “loss”.

In 1992, the Canberra Raiders were the talk of their town for all the wrong reasons.

For the first time in six years, the mighty Green Machine had failed to reach professional rugby league’s finals series. In fact, for each of the past three years they had been grand finalists, returning the premiership to delirious fans in 1989 and 1990.

At the core of their problem was the loss of key forwards Glenn Lazarus, Brent Todd and David Barnhill after the club was sprung for breaching the salary cap. And, undoubtedly, the biggest of those losses was Lazarus.

Canberra’s all-star backline sparkled but the dazzle was built on a foundation laid by the man Roy and HG dubbed The Brick With Eyes. Lazarus was a prop forward who dominated exchanges where the sport is at its most confrontational.

But, in 1992, Lazarus had taken his ball and premiership medals off to Brisbane. And, as Canberra stumbled along, the Broncos surged to the first title in their history.

Every man and his dog could see the Raiders had a problem and coach Tim Sheens was smarter than most of them which is why he took himself off on an end-of-season trip to watch a bunch of ‘no-names’ go around in a celebration of Kiwi rugby league culture.

The Pacific Cup tournament pitted a New Zealand Maori side against teams representing Pacific Island nations, bolstered by talented locals who traced their ancestories back to the various island groups.

After a week of entertaining footy, Sheens got out his cheque book and made offers to both props from the winning Maori side.

Quentin Pongia was a no-nonsense 21-year-old whose potential had been recognised with Kiwi Test selection earlier that year.

The other bloke, however, must have set heads shaking across the ACT.

Sheens had signed a big lad who had never won New Zealand selection and would turn 27 early in his first professional season.

Lomax had been running around with Wainuiomata in the Wellington club competition.

He was one of four brothers in a team from a working class suburb, kept safely out of sight and mind of capital city residents by a steep hill and a winding road.

Wainuiomata was isolated and suffered many of the problems that go with social disadvantage.

But it found pride in the achievements of a rugby league side that was coached and led by the secretary of the country’s Maori Affairs Department, Kara Puketapu.

It was obvious that, in his vision at least, the Wainuiomata Lions were supposed to be more than a footy team.

But, it was as a football side that they put their unfashionable valley on the sporting map, arriving in Auckland and pulling down the pants of the big city boys to win a national title against all expectations, except their own.

Despite his age and lack of experience, Lomax took little time to show the Canberra faithful what Wainuiomata diehards had known for years.

His form in his debut Raiders season earned him Kiwi Test selection, alongside Pongia, and so well did the pair fill the Lazarus-Todd sized hole in the front row that the following year the Raiders were back on top of the rugby league world.

Lomax missed the 1994 grand final after being sidelined for a high shot on Queensland State of Origin legend, Billy Moore.

Nevertheless, the premiership winners named him their player of the year. It was a popular choice even if a slightly embarrassed Lomax would play it down as a “sympathy vote”.

There can be little doubt that Sheens, who went on to a long-time coaching stint with the Australian national side, had pulled the right rein with Lomax.

When the coach moved to North Queensland, in the wake of the Super League split, he signed Lomax for the Cowboys. In 1998 the Kiwi front-rower was named North Queensland’s player of the year.

Despite his late professional arrival, he went on to play 112 first grade matches.

I remember doing a difficult interview with Lomax in a Leeds hotel room after he had been dropped from New Zealand’s starting line-up, during the 1993 tour of Britain and France.

He was disappointed, you might even say pissed off, but he was also respectful of those who had made the call and determined he would be back.

It was a measure of his resolve, and ability, that within two years he had been handed the New Zealand captaincy.

Lomax led New Zealand in three 1995 matches before injury intervened but he came back again to chalk up 16 Test appearances in an international career that stretched to 1998.

In the course of their careers, Johnny Lomax and Glenn Lazarus squared off in many willing club and international encounters.

If it wasn’t for the salary cap problems that pushed Lazarus out of Canberra at the peak of his powers, Lomax would probably have never lived, played or worked in the city.

And, almost certainly, he would not have found himself the latest target in a relentless 14-year campaign to roll back wages, conditions and trade union rights for construction workers.

A key part of that campaign, of course, is the determination of Prime Minister Tony Abbott to have sweeping coercive powers returned to the Fair Work Building Building Commission headed by his hand-picked commissioner, Nigel Hadgkiss.

In the end, a handful of crossbench senators will decide that issue.

None will be more important than one of NSW rugby league’s most successful State of Origin players, Lazarus, who is now going around as an independent senator representing Queensland.

Small world, isn’t it?

A version of this story first appeared Commission Watch – separating fact from fiction

On yer bike, Campbell gives the game away

Campbell Newman is using a dodgy royal commission to drag Australian politics to a new level of grubbiness.

Fighting a state election, called under cover of Australia’s Christmas shutdown, the Queensland premier has alleged criminal bikie gangs are funding his Labor Party opponents.

Asked for evidence to back his sensational claim, Newman played his fuck-you card, telling voters it wasn’t up to him to sustain the allegation but, rather, his opponents had to “prove” it wasn’t true.

To get away with this sort of stunt, Newman is banking on the ability of Tony Abbott’s trade union royal commission to breathe life into slurs.

Those running the royal commission have upended rules of evidence, and other legal norms, in order to turn their inquiry into a political prosecution.

Some of the lengths they have gone to in order to lead “evidence” that fits their sponsors’ agenda while avoiding anything that might legitimise union activity, have been extraordinary.

This was certainly true of testimony taken from two people who, years earlier, had been members of industry super schemes but didn’t like the set up. There was, apparently, no thought of inviting evidence from any of the millions of members who chose to stay with industry super, not even for the appearance of balance.

Neither did counsel think it worth placing on record the objective fact that members of not-for-profit industry super schemes get far better returns on their money, on average, than those in funds run by banks and finance companies.

Other evidence led by the commission, particularly against the CFMEU, has been even more questionable.

The commission has championed an odd assortment of characters in its campaign against the construction union.

So far, it has handed starring roles to serial bankrupts, convicted heroin importers, Liberal Party donors and, in one case, the operator of a site closed for weeks by government safety inspectors after a father of two was crushed to death.

Despite clear and, in some cases, openly admitted conflicts of interest there was little, if any, checking of their credibility before they were given the stand. Certainly, neither the commissioner John Dyson Heydon, nor counsel assisting Jeremy Stoljar and Michael Elliott, saw fit to test their evidence in any meaningful way, during public hearings.

Quite the opposite, in fact.

It was during one of the most bizarre presentations, in which a repeat bankrupt and likely phoenix operator, made sweeping allegations, including but not limited to – bribery, assaults, vehicle sabotage and involvement with the IRA – that the commissioner offered what sounded a lot like his personal support.

Rather than querying any of the amazing things he had just listened to, or the absence of any corroboration, Dyson Heydon, instead, chose to make his revealing Toorak comments. 

But what, you might ask, does this have to do with Campbell Newman?

Well, another member of the commission’s colourful cast was Victoria’s assistant police commissioner, Stephen Fontana, who had been asked along as an “expert witness”.

Fontana started by outlining a legislative wish list that might have been lifted from a Liberal Party propaganda sheet.

He called for the Fair Work Building Commission to get back its full suite of coercive powers, along with a substantial funding boost; for union rights to visit their members to be further restricted; and for police to have the power to block anyone from working as a union official without having to disclose reasons. These were only some of the anti-union measures the policeman used his appearance to advocate for.

He claimed the CFMEU was involved in illegal activities through officials who were members of “criminal motorcycle gangs”.

Like those before him, Fontana felt no obligation to provide any support for these claims and, true to form, neither commissioner nor counsel assisting, sought it.

However, under cross examination from union counsel John Agius,  Fontana folded.

Pressed for an example, anything at all, to support his allegation that CFMEU officials were members of criminal motorcycle gangs, the policeman named Comancheros Sergeant at Arms, Norman Meyer.

It seemed he had seen a newspaper photo of Meyer, a building worker, marching in a Melbourne union rally alongside thousands of other people.

Informed Meyer was not and never had been a union official, and, in fact, was not even a financial union member, Fontana back-tracked.

“I got that wrong. I apologise,” he said.

The expert witness also conceded that, despite his earlier evidence, no CFMEU official had ever, to his knowledge, been charged with blackmail, corruption or drug crimes. See Fontana in action: 

Fontana has been publicly embarrassed but that is neither here nor there to the commission’s authors.

His evidence sits on the public record and, because it was given before a royal commission, can be repeated by anyone, with any agenda, without fear of legal repercussion.

Last week, when the Queensland Premier was pressed for evidence to support his bikie funding claims, his evasiveness was revealing.

“The links between the bikies and the CFMEU are absolutely clear and the Labor Party have said that the laws that have protected Queenslanders go,” he said.

“You’ve got a smartphone there right now, try it, try Googling CFMEU bikie links and see what comes up.”

And, with those words, Campbell Newman gave the federal government’s royal commission game away.

Throw away the keys, Stoljar

MICHAEL RAVBAR could spend the rest of his life in prison for defending the wages and conditions of construction workers, counsel assisting Tony Abbott’s trade union royal commission says.

Jeremy Stoljar (above) has the Queensland CFMEU secretary in the frame for two 14-year sentences, and a couple of five year stretches, as well as fines of up to $500,000 a throw.

Stoljar dismisses $10,200 fines he has prescribed for Ravbar, and several other Queensland union officials, as “manifestly deficient”.

But Ravbar gets off relatively lightly. According to Stoljar’s submissions, his former assistant secretary Peter Close, is looking at three 14-year terms.

However, on the evidence Stoljar has led there is no prospect of Ravbar or Close being locked up. Not, at least, under existing law.

Stoljar’s submissions tread in the footsteps of three decades of political extremism.

Thirty years ago Melbourne barrister Peter Costello and fellow travellers established the  HR Nicholls Society with the ambition of hamstringing unions by moving examination of their activities out of industrial jurisdictions and into the business-friendly arena of commercial law, with its damages and torts.

Stoljar has gone a stride further, arguing union activity should now be criminalised – that, instead of worrying about damages and torts, active trade unionists should fear the sounds of locks and keys.

All the sanctions Stoljar has laid out above, and a good few more, come from just one of his ‘case studies’ – Universal Cranes – and the long-running campaign to challenge industry standards mounted by its owner, Albert Smith.

Smith used Australian Workplace Agreements (AWAs) and insisted all new starters be covered by the Howard-era individual contracts. He employed a lot of New Zealanders on agreements that undercut standard crane industry allowances, conditions and entitlements.

On his own evidence, Smith sought to change provisions dealing with penalty payments, long service entitlements, workers comp, shift allowances, annual leave loadings, rostered days off, superannuation and the classification structure, with its pay scales.

But, most importantly, Smith wouldn’t have a bar of long-establish redundancy (BERT) and income protection (CIPQ) schemes. See here for Smith’s top-10 hits

Crucially, Smith was supported in these efforts by Tony Abbott’s Building Industry Inspectorate.

This is significant because Stoljar places great weight on a series of highly prejudicial emails Universal Cranes sent to the CFMEU that went largely ignored.

Key elements in the Inspectorate’s long-running battle with building unions are electronic records. It intercepts union communications and advises employers to secretly record workers.

In this instance, Ravbar told the commission, Universal Cranes emails referring to CFMEU “bans’, “pattern agreements” and “secondary boycotts” – all unlawful activities – had the Inspectorate’s fingerprints all over them.

Ravbar said he warned colleagues not to get into correspondence with Smith because of the danger of being set-up.

Stoljar says Ravbar’s evidence must be rejected and Universal Crane’s emails should be accepted as an authoritative “contemporaneous record” of the facts.

Here, without comment, is the first paragraph of one of Smith’s emails to the union, from August 2012:

“I refer to our recent conversations regarding the CFMEU boycott of  Universal Cranes on projects where the head contractors are prepared to support your action against us … you have previously indicated that you will lift the ban on us if we force our employees to join the BERT fund.”

And, here’s the guts of a Universal Cranes email from October, 2012:

“We have really noticed the pressure that you guys have applied to our clients lately …  we have been evaluating our options and as such concluded that we have no other option than to sign the CFMEU pattern agreement … please confirm your agreement and also your attendance on Monday morning at 6am.”

The version of this email tendered in evidence, by the way, was the copy Universal Cranes sent to Graeme Hogan of the Building Commission Inspectorate.

We aren’t going to get bogged down here with how these submissions “weigh” evidence other than to point out that they dismiss as invalid union arguments about the contractors clause in its EBAs, although many claims about its effect were conceded by Smith in his testimony.

On matters of dispute, Stoljar submits Smith and supporting witnesses should be believed in all instances, and contends that every union officer who came into his sight was dishonest, stupid or both – “not a witness of credit”; “not an honourable person”; “not a witness of truth (x2)”; and “not sensible”. Another worker’s evidence was “curious” and “not to be believed”.

But these are fairly predictable submissions if you accept Stoljar has traded the theory of “inquiry” for the reality of “prosecution”.

Stoljar proposes endless sanctions against the union and its officers.

In an argument that would render almost any industrial action an own goal, he submits, the CFMEU and its officials, took “adverse action” against their own members.

Stoljar argues any loss suffered by an employer is, effectively, also a loss to that company’s employees.

“Their employment is prejudiced because the employer earns less money than it otherwise would and thus has less money and work opportunities to be able to keep the employee in employment,” Stoljar submits.

Alleged CFMEU actions, he says, have thus denied its own members a “workplace right”.

But, where Stoljar really pushes the credibility envelope, is with his claim that Ravbar and Close are criminal extortionists.

Prosecuting this, he says, he needs to show their actions met three core requirements … 1) the making of a demand; 2) the use of a threat, and, 3) the intention to gain a benefit or cause loss to someone.

As he has multiple extortion charges in mind and they are all basically the same, let’s just deal with the first levelled against Ravbar.

The demand, he submits, was for Universal Cranes to enter an EBA; the threat was an allegation, recorded in one of Smith’s emails, that a north Queensland official, allegedly with Ravbar’s knowledge, threatened to have the company kicked off work sites.

It is at this point that Stoljar’s somewhat baffling preoccupation with Queensland’s BERT and CIPQ funds finally becomes clear.

He needs to paint these 30-year-old redundancy, sick leave and income protection schemes, established and controlled jointly by unions and employers, as more than just attempts to protect entitlements in an industry marked by fixed-term contracts and casual hire.

They are his smoking gun, the driving motivation, he contends, for all Ravbar’s demands and threats because they “return a benefit” to him, or the CFMEU.

This allegation is based on his contention that the CFMEU reaps millions of dollars a year from these funds even though Smith’s evidence on this melted at the first blush of cross examination.

Smith said he “believed” the CFMEU received commissions on fund contributions. Repeatedly he refused to support this claim or, even, explain where it came from.

Q: What can you exactly recall as to where you got that information from?
A: I can’t recall where I got that information from

Q:  Did you ever check it with BERT?
A:  No.

Q:  Did you ever check it with CIPQ?
A:  No

Q:  Why not?
A:   I didn’t see any need. I did my own calculations.

Stoljar’s submission on this ignores the evidence he led from Major Contractors BERT fund director, Chris Stanley, who explained the reality of a structure that Stoljar said netted the CFMEU $3.3 million, last year.

Stanley, a John Holland director, said contributions to the entitlement protection funds were held in accounts under the names of individual workers. Proceeds from investing those funds were rolled annually into the BERT Welfare Fund.

“In effect,” Stanley said, “that is a payment equally to the two groups of sponsors” – Stoljar’s ‘union payment’ and another to employer sponsors – “but there is a sponsors’ advisory, or a sponsors’ deed, pre-agreed between the sponsors, that those proceeds from the investment would then be used for industry benefits.

“We (then) sit separately as a sponsors’ advisory committee to discharge the decisions about distribution of these proceeds to a program of welfare benefits or industry benefits.”

BERT accounts in the commission’s possession, reveal where that money goes.

They show it has spent more than $25 million on industry training and another $55 million on other benefits, including funeral support, financial advice services, ambulance fees and Mates in Construction, an award-winning suicide prevent program.

There is no suggestion that any of this money, other than standard directors’ fees, finds its way back to the CFMEU, much less any of its officers. In 30 years as employer-union controlled, independently audited funds there never has been.

Stoljar’s submission gives no thought, much less “weight”, to the generally accepted notion that a union exists to protect the wages and conditions of its members, in this case from a long-running campaign to undermine them.

Instead, Stoljar submits, “it is clear that Mr Ravbar acted in this way in an attempt to gain advantages for BERT, BEWT and CIPQ and in due course, the CFMEU, in the form of the payments that would flow to those entities”.

But wait, there’s more.

Stoljar then submits, the actions of Ravbar and Close meet extra requirements required to boost their prison sentences to 14 years.

To achieve this, he explains, he needs to show their actions were “likely to cause substantial economic loss”.

But, in his very next sentence, Stoljar admits that, despite the forensic accountants at its service, “this commission did not give close consideration to the economic loss of Universal Cranes” and is “therefore not in a position to say with certainty what the precise loss would be.”

However, he adds, “the general impression one has is that the loss would be substantial.”

Surely, this is not the strength of ‘evidence’ needed to argue Ravbar and Close should be locked up for the rest of their lives.

Stoljar uses the headlines of “extortion” and “life sentences” to reinforce an argument that, in 12 years since Abbott’s $60 million Cole Royal Commission into the Building Industry, hasn’t been bolstered by a single criminal conviction.

Stoljar nods to other articles of rght wing faith by deriding the efforts of worker reps on fund boards; questioning union involvement in training, redundancy and income protection programs, and the legitimacy of any form of union-employer cooperation.

These submissions will obviously go down well with the authors of this royal commission but you wouldn’t want to be a prosecutor saddled with them as your “evidence” for chasing criminal convictions.

An edited version of this story appears at Commission Watch

Union police pounce – right on cue

It’s uncanny. One day you write a story about Liberal Party hardliners politicising Australian police forces and, tickle me with a truncheon, the very next morning they go out and prove you right.

I sent off a story, much like the one below, on Sunday November 22, and on Monday morning, bright and early, the lads and lasses from the trade union royal commission taskforce were knocking down the doors of the Queensland CFMEU.

No knock on the frontline coppers but, seriously, when you have been following their political masters for a while, you can read them like a book.

Yep, as two more construction workers lost their lives and news broke of employers robbing Australian families of $2.6b in retirement savings every year, it must have seemed like a good time to dispatch armed police to turn over another union office.

Honestly, if you didn’t come here or visit Commission Watch – separating fact from 15 years of fiction  you wouldn’t read about it ….

Libs push terror down the agenda

FIFTY SEVEN fulltime police officers have been diverted from combatting terrorism and organised crime to help drive the Liberal Party’s anti-union campaign.

AFP Commander Mark Ney underlined the gap between the Federal Government’s tough terror talk and its actions, in October evidence to the Senate’s Legal Affairs committee.

He said 30 AFP officers along with 27 from NSW, Victoria, Queensland and ACT police forces had been seconded to the trade union royal commission taskforce.

The taskforce boss confirmed operational costs were being “offset” against other departmental activities.

Over its first nine months, Ney said, the federal government had stumped up $2.75m to cover the involvement of state and territory police. However he could not put a figure on the “AFP component” of the slug to taxpayers.

Ney revealed the officers have been working with Tony Abbott’s royal commission against trade unions since January 2.

He said they were handling criminal investigations and helping the commission deal with witnesses he described as “dangerous and difficult people”.

He gave evidence shortly after the taskforce had been acutely embarrassed by the decision of Canberra prosecutors not to offer any evidence in support of its debut criminal charge.

The blackmail count against former rugby league star, Johnny Lomax, was a significant departure from Australian legal custom. It sought a criminal conviction, that would have opened Lomax to 14 years in prison, for negotiating a workplace agreement.

According to the police charge sheet, Lomax’s success in winning $26 an hour for a group of Canberra painters had caused their employer to “suffer a loss”.

The arrest of the 16-Test Kiwi international was staged while national media attention was focused on royal commission hearings in the capital. Lomax was held in police cells for three hours before being served up to waiting press.

Ney endorsed the move to charge Lomax and said senators would have to ask prosecutors why they had decided there were “no reasonable grounds for proceeding in this matter”.

He said he had personally tipped off trade union royal commissioner John Dyson Heydon and senior counsel assisting Jeremy Stoljar before more than 20 armed police staged a 13-hour raid on the CFMEU’s Canberra headquarters, in August.

The validity of that raid is now being contested in the ACT Supreme Court.

Ney’s taskforce now hopes to notch its first scalp in Brisbane, off the back of disputed complaints from an anti-union employer with a dodgy safety record.

Apparently, a CFMEU official was arrested and held in police custody for eight hours after union lawyers wrote to the employer pointing out obligations under health and safety laws.

There have been reports that royal commission police have threatened to arrest lawyers and that agreements, reached in court, have been unilaterally torn up.

A source, close to police, told Things about Stuff local officers were out of the loop. He said the AFP was calling the shots.

These developments come after 15 years of a relentless political campaign, driven by former Prime Minister Tony Abbott, to paint the CFMEU a “criminal” organisation.

The militant union stands between hardline politicians and business leaders and their burning desire to drive down earnings in the economically-important construction sector.

In 2001, Abbott set up a two-year royal commission into the building and construction industry on the strength of hearsay allegations contained in an 11-page report from his Employment Advocate.

That royal commission chewed through more $60m in public money as more than 100 investigators with the power to tap phones, intercept written communications and seize financial records, failed to gather enough evidence to secure a criminal conviction against any union official.

The Howard Government did, however, establish the Australian Building and Construction Commissioner (ABCC) to “police” union activity.

That body has now morphed into the Fair Work Building Commission (FWBC), headed by anti-worker activist Nigel Hadgkiss. It generates anti-union publicity and polices a suite of pro-employer industrial laws.

Right of entry not a right… Nigel Hadgkiss    Photo: SMH

It is particularly militant about enforcing “right of entry” provisions that restrict the ability of union officials to visit members. Hadgkiss has turned ‘right of entry’ into a first order enforcement issue, arguing that, despite the name, it is not a right at all but a “privilege”.

Like Abbott, Hadgkiss continually cites “criminality” to support his aggressive policing and repeated demands for increased coercive powers, although criminal matters are clearly outside his remit.

In fact, last year, Victorian and AFP police chiefs told a Senate Estimates committee that across the years 2007 – 2012, when the old ABCC held the full range of powers Hadgkiss craves, it did not provide either agency with one lead that led to a criminal conviction.

In the face of these inconvenient facts, government has turned up the volume on its“criminality, corruption and thuggery” rhetoric.

Key spokespeople including Eric Abetz, George Brandis, Peter Dutton and new Workplace Relations Minister, Michaelia Cash, have aggressively adopted Abbott’s talking points.

Ney’s trade union taskforce was announced by Abbott, last year, in the shadow of a Victorian state election that tossed out a one-term Liberal Party Government.

This time Abbott’s cover was discredited “evidence” provided to his trade union royal commission by Assistant Victorian Police Commander, Stephen Fontana. Blowing his Union Bogey card

Fontana, basically, rehashed a string of Abbott/Hadgkiss talking points before retreating from each and every allegation of criminality he had made under oath, during cross examination. And, eventually, serving up this apology

CFMEU construction division national secretary, Dave Noonan, says the latest taskforce is “purely political”. He labelled the stated premise of entrenched union criminality “a straight-out lie”.

“It is the most serious allegation you could make against any person, or organisation, and it is repeatedly aimed at our officials and members,” Noonan said.

“For years now, it has been parroted, without concern for accuracy or fairness, by the mainstream media. Now, disturbingly, we are starting to hear it repeated by senior police officers.

“We are not perfect, and we work in a tough, uncompromising industry, but we do not and will not tolerate criminal behaviour. If there is evidence of any official acting corruptly, or outside proper boundaries, we will act decisively as we have in the past.”

Noonan asked Australians involved in other organisations, from businesses to churches, to think about how they might have fared if they had been subjected to the aggressive, forensic attention CFMEU members have endured for 15 years.

He said the move to charge Lomax with blackmail and “biased findings and recommendations” being churned out by the royal commission were part of a political campaign to criminalise trade unionism.

 

 

 

Alas Smith and Jones

RIGHT WING shock jock Michael Smith’s lack of media ethics has been outed by … wait for it … Michael Smith.

In the latest update on the sordid relationships that bind the last of the Trade Union Royal Commission cheerleaders, Smith – a former policeman – claims to have been involved in an “intimate” relationship with inquiry star and Liberal Party favourite, Kathy Jackson. For the record, according to the Australian newspaper, Jackson who infamously described a previous affair as a “charity shag”, denied she had been similarly generous to Smith.

What we do know, however, is that Smith left his home and moved onto the spacious rural property shared by Jackson and her long-term partner, Michael Lawler, a controversial Fair Work Commissioner who was appointed to his high-paid role by former Workplace Relations Minister, Tony Abbott. And, further, that he stayed there for the best part of a year.

Frankly, Smith’s private life is of absolutely no consequence to anybody else. But, what everybody was entitled to know when he was broadcasting, daily, about the royal commission on Sydney’s major commercial radio station, and penning breathless eulogies to Jackson on his heavily-promoted blog was that he was both living at her address and, if he is to be believed about anything, was also in some sort of personal relationship with her.

If that is not a straight out conflict of interest, nothing is. Last July, I wrote the following comment piece about his activities but publishers were wary. In some ways it is dated but, in others, seems more relevant than ever …

Screen shot … from Smith’s website

AN ANTI-MOSLEM rant has cost the loudest media barracker for Tony Abbott’s trade union royal commission a gig at Sydney radio station 2GB.

In an on-air discussion with presenter Ben Fordham, last week, Michael Smith lashed the prophet Muhammed, revered by hundreds of millions of believers, as a “a paedophile, a pederast” and “a sexual offender”.

The remarks resemble those Smith made during a notorious 2011 broadcast that was eventually cleared by the Australian Communications and Media Authority.

Despite that, Smith announced last weekend, that 2GB had withdrawn an offer for him to fill-in on its afternoon show.

“At 7.15 last night 2GB’s Program Director David Kidd phoned me and said, “we won’t be needing you, you can’t call a Deity a paedophile,” Smith announced on his website.

Smith, eulogised at his wedding by speeches from cabinet minister Barnaby Joyce and Attorney General George Brandis, has made himself part of the story of Tony Abbott’s trade union royal commission.

He turned up to the first days of hearings with confessed bagman Ralph Blewitt and, since, has been a conspicuous supporter of controversial former HSU official Kathy Jackson and one-time AWU official, Bob Kernohan.

Smith appeared to offer advice to Blewitt and Jackson during breaks in their testimony before the commission.

All three witnesses have provided controversial statements questioning the integrity of either former Prime Minister Julia Gillard, current ALP leader Bill Shorten, or both.

At the same time, Smith was given up to 10 minutes a day to regale Alan Jones’ listeners on Australia’s highest rating radio station with the line according to Blewitt, Jackson and, mainly, himself.

Jones played the reinforcer – no matter how wacky Smith got in promoting his friends, denigrating the trade union movement or brown-nosing royal commissioner John Dyson Heydon.

Here’s a taste of Smith and Jones in action, the day after NSW sealed victory in rugby league’s State Of Origin series.

“I was at State of Origin yesterday and yesterday, in aggregate, I saw three Lionheart performances – Paul Gallen, Laurie Daley and Kathy Jackson,” Smith enthused.

“Jackson, she is in that league Alan, she is a Lionheart.”

Smith went on to savage accusations that Jackson benefitted, personally, from a quarter of a million dollar settlement, supposed to have gone to cancer workers, as ‘absolute crap, unmitigated rubbish”.

It “was not the members’ dues, it was a windfall,” he added, somewhat disingenuously.

On June 23 Smith labelled a former Gillard boyfriend a man “whom we know arranged for a mutiny” … “an act of piracy on the high seas”.

Repeatedly, both Smith and Jones issued calls for Gillard and Shorten to be hauled before the commission.

Smith’s line is, at least, consistent.

“The corruption in this mob defies description and thank goodness we have his honour, Mr Justice Heydon,” he told listeners.

“I think you will be amazed, people will be shocked at the extent of the evidence that has been gathered by this Royal Commission … and what it really says about corruption between unions and the Labor Party”.

On June 24 the pair trained their fire on other another favourite target of conspiracy theorists.

Jones leads off – “Dyson Heydon is not to be messed with, is he?”

Smith:  “Yesterday morning the ABC put its report up and it mis-spelled Justice Heydon’s name. It had two letters wrong, it mis-spelled it severely.

“I wrote to them, I put stuff up during the day. You know, this morning that report is still up on the ABC’s couldn’t-give-a-stuff website, still mis-spelled, still with inaccuracy …”

Jones: “Yeah … our ABC, our ABC.”

Smith:  ‘“They either don’t care …”

Jones (butts in):  “No”

Smith:  “Or they are thumbing their nose with flagrant disregard for 1) accuracy, and 2) respect for the commission.”

Jones:  “Mmm, indeed. What’s new?”

Smith:  “Yeah, that’s right. What’s new?

As the pair become increasingly agitated over website accuracy and perceived slights to Dyson Heydon and his royal commission, it is worth looking at the banner they travel under on the 2GB website.

“The latest on the building industry royal commission,” the link to their chats still read on July 1.

Seriously guys, not that it means much beyond your credibility, but that royal commission ended more than 12 years ago.

Objectively speaking … headlines from the broadcaster’s website

Wahab and Guptill tear up the script

Fickle finger … luck in short supply for Wahab Riaz (pic Cricinfo)

TWO MEN – Pakistani quick Wahab Riaz and Kiwi opening batsman Martin Guptill – transformed a predictable round of Cricket World Cup quarterfinals into must-watch sporting theatre.

Millions of words have already been written about the terrific spell of fast bowling Wahab served up in a losing cause at the Adelaide Oval on Friday night and, for once, most of them were true.

Wahab Riaz v Shane Watson was special. It was a spell-binding confrontation within a confrontation, one of the best pieces of one-on-one sporting action seen in Australia for years.

Pakistan was right up against it when Wahab greeted the under-pressure Australian with a spell of pace bowling, at once aggressive and composed, confrontational and skillful. Over three consecutive overs, he ruthlessly exposed Watson’s technique against the short, fast ball. Or, more accurately, against his own brand of left-arm fast bowling.

He had Watson ducking, diving, fending and, regularly taking his eye off near-150kph missiles aimed at the region between his heart and his throat. Just for good measure, Wahab also found a disconcerting measure of swing.

Finally, the Pakistani appeared to undo his sparring partner, drawing a ducking hook-fend that saw the ball lob out to backward square where some other bloke managed to put it on the deck.

How extraordinarily disappointing would that be?

Still, after a brief spell, with his team’s World Cup dreams receding  at a rate of knots, Wahab was summoned back for a final effort. This time it was Glenn Maxwell, the self-proclaimed Big Show himself, ducking, squatting and simultaneously swatting away an attempt at a cricket shot that went deep into the offside where someone else shelled the chance, effectively tearing up Pakistan’s final get out of jail card.

Thus, one of the best spells of one-day bowling you will ever see, ultimately, went unrewarded.

And, at the end of the match, Watson was still there.

Over half an hour, his technique had been put under the sharpest microscope in front of millions of people. Within minutes, his torment had been edited and posted on Youtube. But Watson survived and came out the other side, striking a range of powerful strokes to lead his side into a World Cup semifinal.

The following day turned into an even better one for another batsman whose place in international cricket had also been the subject of dark muttering.

Guptill’s extraordinary innings against the West Indies has drawn nearly as many superlatives as Wahab’s bowling.

With his opening partner and New Zealand’s go-to run plunderer Brendon McCallum gone early, Guptill took in on himself to shred the West Indian attack and power his side to a near-impregnable 393-6.

The figures Guptill returned – 237 runs off off 163 balls with 24 fours and 11 sixes – almost speak for themselves. But not quite.

The sublime thing about Guptill’s innings of a lifetime was that it was deeply rooted in tradition. He got his defence in order and he played straight. His first hundred runs took 111 balls. He got his next hundred off 41 and, then, he cut loose.

Naturally, there was a twist. Guptill was spilled, a tough, low chance forward of square leg, when he had only four runs against his name.

For Wahab, Watson and Guptill, it could all have been so different and that is enduring beauty of cricket.

Ruck that – footy needs shake-up

THE National Rugby League needs a shake-up, starting at the top.

Round one of the 2015 competition is not even over and it is obvious decision makers have contrived to make the game worse than it was last season.

Their new ruck regime allows the mindless bore factor to take an even more painful squirrel hold on the sport.

Basically, the interpretation seeks to limit wrestling by authorising referees to shorten the ruck confrontation and order a quick play-the-ball.

Wrestling is a curse and needs to be eliminated but there are ways of achieving that that don’t just pander to the fast-game mob.

It is unsurprising to see Broncos mentor Wayne Bennett defending the new interpretation because, for two decades, he has been at the centre of big changes to the way game looks on the field.

Since Super League, and the introduction of Bennett Ball, the 13-man game has steadily lost its mojo, swapping sweeping ball movement and daring attacking skills for a predictable imitation of gridiron that can be orchestrated, play-by-play, by the clipboard club.

Only a coach, or worse, a committee of coaches could have alighted on the new ruck interpretation because only a coach would want to squeeze any lingering flair out of, at a minimum, the first four tackles of every set.

And, make no mistake, that will be the upshot of this change. The guarantee of easy yardage from one-out, risk-free runs will be even stronger than it is now.

This is not to knock those who play the game because their commitment and skill still rise to the top often enough to keep us engaged. But they could be engaged in a much better, more enjoyable contest.

The heart of the problem is that the game has become so structured and completion rate fixated, that any initiative which risks possession has become a sin of contract-shredding proportions.

A fast game may indeed be a good game, often is, but footy also needs to be a contest and the right to put on the after burners should have to be earned.

Quick rucks and predictable one-out runs might make coaches feel like masters of all they survey but they can be a pain in the arse for the paying punter.

Further, and administrators don’t seem to get this, their commitment to structure and orthodoxy is a massive contributor to the game’s refereeing woes.

Rugby league has always had problems with its officiating but it is more damaging in today’s big-money, fully-professional environment. Not least because the effects are more dramatic.

When two competent, well-drilled sides go through their predetermined sets and odds are weighted so heavily against flair and unorthodoxy, the only person likely to change the balance of a tight game becomes the bloke with the whistle.

In a match of tiring, set-for-set attrition, penalties are worth their weight in points. They change the dynamic of the match in a way players, themselves, are no longer allowed to risk.

Paradoxically, the power of modern penalty is only heightened by its relative scarcity – another artificial development engineered by coaches and administrators who feel lower penalty counts will further speed up the action.

The athletic skills of our footballers have never been better but, steadily, the special skills that appeal to football people are being made redundant.

There are a lot of rule changes that, one by one, would help turn this around. Reducing the number of interchanges, and reintroducing some contest for possession – probably at rucks and scrums and possibly in the tackle – would be obvious starting points.

Defenders should be allowed to slow down a ruck if they earn that right and referees should go back to applying the laws without fear or favour. The stupidity of enforcing one rule for a couple of weeks, and then ignoring it for the rest of the season needs to go the way of the kicking duel, though, to be fair, even that could be entertaining on a wet afternoon at Carlaw Park.

But, above all, the NRL needs to get coaches off its rules and policy-making committees.

The last two NRL chiefs have been a corporate lawyer and a banking executive, both from rugby union backgrounds. If the new breed of administrator doesn’t feel comfortable making decisions about the shape of the game on the park, that’s fair enough.

But there are dozens, if not hundreds, of capable former players and grassroots club people who could step up to the mark in the best interests of their sport.

Coaches, on the other hand, are hopelessly conflicted. They have too much skin in next weekend’s results to be making rational decisions about the long-term shape of the sport. And, a competent administration would not put them in that position.