CHAPTER 3.2
conduct of officials of the cepu act
Subject / Paragraph /A – INTRODUCTION / 1
B – LUKE POSKUS / 6
Advanced Plumbing / 7
Capital Hydraulics / 41
C – MATTHEW McCANN / 49
Capital Hydraulics: John Nikolic / 49
Capital Hydraulics: Incident in Office / 57
Jason Hooper / 64
D – Further material provided by the CEPU / 72
A – INTRODUCTION
1. This Chapter concerns the conduct of some officials of the Plumbing Division of the Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).
2. The main issue that arises is similar to an issue considered later in connection with site visits by the CFMEU.[1] Do visits by CEPU officials to building sites involve abuses of rights of entry conferred by the Work Health and Safety Act 2011 (ACT)?[2]
3. Up until 1 April 2013 the Plumbing Division had a branch in the Australian Capital Territory. From 1 April 2013 that branch merged with the New South Wales Branch of the Plumbing Division as a sub-branch. That sub-branch will be referred to as ‘the ACT CEPU’.
4. Four officials of the ACT CEPU gave oral evidence at hearings in Canberra. David Broadley has been State Secretary of the New South Wales Branch of the Plumbing Division of the CEPU since 2011. He has therefore been responsible for the ACT CEPU since 1 April 2013. Luke Poskus has, since 22 April 2013, been the NSW Safety Officer of the New South Wales Branch of the Plumbing Division of the CEPU. He and David Broadley work predominately in Sydney. Matthew McCann has worked as a recruitment officer for the ACT CEPU since January 2014, based in Canberra. Damian Kirkwood is no longer a CEPU official. He was secretary of the ACT Branch of the Plumbing Division for about six years until its merger with the New South Wales Branch. He resigned as an official on 19 June 2013. In addition to the above four officials, Daniel Hanford prepared two witness statements which were received into evidence. Daniel Hanford commenced as an organiser for the ACT CEPU in late July 2013. He resigned in October 2013 for personal reasons.
5. The ACT CEPU has a small number of members in the ACT. David Broadley’s evidence was that there are currently 173 financial members in Canberra.[3] The ACT CEPU has been operating with only one or two officials present in Canberra on a full-time basis. Its involvement in the ACT construction industry is thus more limited than that of the CFMEU. The evidence before the Commission focused on the conduct of Luke Poskus and Matthew McCann.
B – LUKE POSKUS
6. Luke Poskus, as indicated above, commenced as the NSW Safety Officer of the Plumbing Division on 22 April 2013. He first visited Canberra in this capacity in July 2013. He arrived in Canberra on 1 July 2013. Luke Poskus was not sure how long he was in Canberra although he said it was possibly four or five days.[4] During that visit, he attended a number of construction sites, including four that were the subject of evidence before the Commission.
Advanced Plumbing
7. Advanced Plumbing, a hydraulic plumbing company, was operating on two of those sites. Jason Hooper is the principal of Advanced Plumbing. The sites were in Easty Street, Woden and in Antill Street. The builder on both sites was Milin Builders.
8. From about March 2013 Jason Hooper, together with the other major hydraulic contractors, had been engaged in EBA negotiations with the CEPU. There was evidence given by Jason Hooper and by David Broadley and Damian Kirkwood about the content of these negotiations. Their versions of what was said differed, on some points significantly. It is not necessary to refer to that evidence or to resolve these disputes. It is sufficient to note that on 27 May 2013 Jason Hooper told David Broadley that he would not be proceeding with the EBA.
9. On the same day, David Broadley sent Damian Kirkwood to the Easty Street site and the Antill Street site. At the Easty Street site, Damian Kirkwood asked at the site office whether there were any Advanced Plumbing employees present and he was told there were not.[5] He did not enter the site. He then went to the Antill Street project. He did not purport to visit the Antill Street site for safety reasons. He said that he asked Anthony Derouw, the site foreman, if he could speak to the Advanced Plumbing employees and Anthony Derouw agreed. Anthony Derouw’s evidence was to the same effect.[6] The site visit was consensual. Its stated purpose was to speak to Advanced Plumbing employees about an EBA.
10. On 1 July 2003, Luke Poskus arrived in Canberra from Sydney. On 2 July 2013, he rang Jason Hooper to ask about signing an EBA. According to Jason Hooper, Luke Poskus asked for a meeting ‘ASAP’ about signing the EBA, and then, when Jason Hooper said he wasn’t interested, Luke Poskus said words to the effect that he would be on the Easty Street site in the morning to look for safety concerns.[7] Luke Poskus denied that the conversation happened in this way. He said that David Broadley asked him to call Jason Hooper to set up a meeting about an EBA because Jason Hooper had not been returning David Broadley’s calls. Luke Poskus said that when he called Jason Hooper, the latter abused him until hanging up.[8]
11. David Broadley denied asking Luke Poskus to set up a meeting with Jason Hooper.[9] Luke Poskus was not an impressive witness. For reasons given below,[10] his evidence about the purpose of various site visits cannot be accepted. David Broadley’s evidence is preferred on this issue. It is thus unlikely that Luke Poskus rang Jason Hooper for that purpose, or told Jason Hooper that David Broadley wanted to have a meeting with him.
12. That still leaves the question of whether to accept Jason Hooper’s account of the conversation. Competing submissions were made about that question. For the reasons explained at the conclusion of this Chapter, no finding is made about it.[11]
13. On 3 July 2013, Luke Poskus went to the Easty Street site. He claimed that he was exercising rights under s 117 of the Work Health and Safety Act 2011 (ACT), and that he gave notice under s 118. The Milin representatives denied that any notice was given. No notice in fact was produced to the Commission by the CEPU or by Milin. The CEPU in fact submitted that, contrary to his evidence, Luke Poskus was not exercising rights under s 117 and that the site visit was consensual. That submission is considered below.
14. Jason Hooper claimed that, at the end of the visit, he and Luke Poskus had a conversation in which Luke Poskus said words to the effect: ‘If you sign the EBA agreement the union will put pressure on the builder [Milin] to get more money put onto your contract’.[12] Luke Poskus denied this in his statement.[13] The matter was not taken up with either witness in oral examination. In the circumstances explained at the conclusion of this Chapter, no finding is made.[14]
15. Luke Poskus claimed he went to the above site because he had received anonymous complaints about safety. Counsel assisting submitted that the claim is a fanciful one, invented to disguise the true purpose for the visit. For the reasons that follow, that submission is accepted.
16. Luke Poskus said that the anonymous complaints regarding safety at the Easty Street site were received at the New South Wales office.[15] He said the complaints were received by Ian Wright, who worked at the front desk. He said that Ian Wright gave him post-it notes with the complaints written on them. He said the complaints recorded on the post-it note for the Easty Street site related to moving plant, a pedestrian issue, access and egress and fall from heights.[16] He was unable to say when the complaints were received.[17] However, he confirmed that it was prior to his coming to Canberra.[18] He said it was possible they were received months before he came to Canberra and also possible that they were received the week before he came to Canberra.[19] He said that he did not ask Ian Wright when the complaint was made.[20]
17. Luke Poskus accepted that lives were at risk from the safety issues in question.[21] Luke Poskus said in his statement that in the period 2002/2003-2013/2014 almost 70 deaths had occurred in the construction industry as a result of site preparation services (including moving plant issues).[22] He also said that matters such as unsafe access or egress can cause a fatality and that he took them very seriously.[23]
18. Counsel assisting questioned Luke Poskus about why, under these circumstances, he waited for some time until he did anything about the complaints he said he received. Counsel assisting submitted that, if true, Luke Poskus’s approach was a hopeless way to deal with safety, inconsistent with his professed concern about it and inconsistent with the careful ‘site mapping’ undertaken by the union. The ultimate submission made by counsel assisting was that the evidence was confected. They submitted that in fact no complaints were received and the site visits were an attempt to put pressure on Jason Hooper. Submissions to similar effect were made by counsel for John Nikolic.
19. Luke Poskus in oral evidence gave a number of reasons for not doing anything about the anonymous safety complaints until 3 July 2013.
20. First, his evidence was to the effect that anything short of a site visit by him might lead to someone being victimised for being a union member.[24] The CEPU also relied on this proposition in its submissions.[25] It has a number of difficulties. The first is that a union official who receives a complaint and acts on it promptly could with perfect legitimacy say that he or she was entitled to go to the site and investigate the complaint without first bringing it to anyone’s attention. But that is not Luke Poskus’s position. He claimed to receive complaints and then do nothing about them for a significant period. As stated above, his evidence was that the complaints could have been received weeks or even months prior to the visit. The second difficulty is that it is not clear why the arrival of Luke Poskus in person would be less likely to result in victimisation. Luke Poskus accepted that, when he turned up on site, a builder would think that one of his members had made a complaint. However he said that his presence ‘demonstrates that their Union is going to follow up on their complaints and maybe that would make the builder think twice about engaging in that sort of [conduct]’.[26] But ringing Worksafe or ringing the builder would not have prevented Luke Poskus from turning up on site at some later time. This whole approach gives secondary importance to people’s lives: that is not how any competent safety officer would have proceeded.
21. Secondly, Luke Poskus said that without a site visit there would be no guarantee that the builder would take the issue seriously and/or perform the necessary rectification works.[27] The CEPU did not embrace this reason in its submissions. It is a spurious reason. It does not explain why he did not ring Worksafe and/or the builder and then follow up the rectification works when he arrived in Canberra.
22. Thirdly, Luke Poskus suggested that the builder may not be aware of the relevant Australian Standard or legislation applicable.[28] This reason, too, was not embraced by the CEPU in its submissions. It too was spurious. Even if this unlikely scenario were in fact the case, why could not Luke Poskus tell the builder? Why could not the builder find out from some other source?
23. Fourthly, so far as notifying Worksafe was concerned, Luke Poskus’s position was that there was no requirement for him to notify Worksafe and that the anonymous complainant was free to contact Worksafe if he wanted to.[29] Both these propositions were true. But they do not explain why Luke Poskus did not contact WorkSafe (or take some other step) if he had been notified of serious safety issues on the site. In oral evidence, Luke Poskus took offence at the proposition that it was common sense to contact Worksafe if there was a life threatening issue on site that he could not deal with. His position was that he had no need to ring Worksafe unless he needed its assistance on a project where he was having problems.[30] But, if he in fact received safety complaints and was unable to deal with them promptly, he did need that assistance.
24. At one point in his oral evidence Luke Poskus said that notifying the employer in advance would defeat the purpose of exercising a right of entry regarding safety.[31] The CEPU in its submissions supported this proposition. It suggested that notification in advance would provide an opportunity to take steps to hide the safety breach.[32] The proposition cannot explain Luke Poskus’ conduct. It does not explain why no attempt was made to notify WorkSafe. Further, the ultimate purpose of exercising rights under s 117 of the Work Health and Safety Act 2011 (ACT) must be to assist in ensuring that workers are safe. Doing nothing about a safety complaint for a significant period defeats that purpose. As counsel assisting submitted, doing nothing might even assist an employer in taking steps to hide the breach.
25. Damian Kirkwood gave evidence that if he had received a safety complaint he would go straight to the site concerned and deal with it. He said he went urgently, ‘ASAP’, as fast as he reasonably could. If he could not get there he would ring the head contractor.[33] He said ‘If I was in Sydney for whatever reason and I couldn’t get there for a day or two, I’d ring’.[34] He would then go to the site and check himself to see whether the matter had been dealt with. He said that this was an important thing to do if one was serious about safety.[35] The CEPU submitted that the mere fact that Damian Kirkwood took such an approach does not mean that Luke Poskus’ approach was unacceptable. But Damian Kirkwood’s approach is only common sense. And it does highlight the defects in the position adopted by Luke Poskus.