ROYAL COMMISSION INTO TRADE UNION
GOVERNANCE AND CORRUPTION
CFMEU
Level 5, 55 Market Street, Sydney, NSW 2000
On Wednesday, 24 September 2014 at 9.35am
Before the Commissioner: The Hon. John Dyson Heydon AC QC
Counsel Assisting: Mr Jeremy Stoljar SC
Mr Michael Elliott
Instructed by: Minter Ellison, Solicitors
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1 THE COMMISSIONER: Yes, Mr Stoljar.
2
3 MR ELLIOTT: Commissioner, the first witness is
4 Brian Fitzpatrick.
5
6 THE COMMISSIONER: Is there some problem about the order
7 of witnesses?
8
9 MR ELLIOTT: No, Commissioner.
10
11 THE COMMISSIONER: Very well, Mr Fitzpatrick.
12
13 <BRIAN RAYMOND FITZPATRICK, sworn: [9.35am]
14
15 <EXAMINATION BY MR ELLIOTT:
16
17 MR ELLIOTT: Q. Mr Fitzpatrick, what is your full name?
18 A. Brian Raymond Fitzpatrick.
19
20 Q. You are a resident of New South Wales?
21 A. I am.
22
23 Q. You are presently retired; is that correct?
24 A. Happily retired, yes.
25
26 Q. You've given evidence to the Commission on one
27 previous occasion?
28 A. I have.
29
30 Q. And since that occasion have you had the opportunity
31 to read the transcript of the evidence you gave and to look
32 again at your witness statement?
33 A. I've been all over that. There's a few corrections,
34 yes.
35
36 Q. Can I show you this document. Does this document set
37 out the corrections and clarifications that you wish to
38 make in respect of the evidence that you have given
39 already?
40 A. Yes, they're the ones.
41
42 MR ELLIOTT: Commissioner, I tender that document.
43
44 THE COMMISSIONER: Yes. That will be Fitzpatrick MFI-1
45 24 September 2014. I take it the intent of this is that
46 one reads the statement and the transcript with this in
47 hand and makes the corrections accordingly?
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1
2 MR ELLIOTT: Yes.
3
4 FITZPATRICK MFI#1, 24 SEPTEMBER 2014, DOCUMENT SETTING OUT
5 CORRECTIONS AND CLARIFICATIONS RE MR FITZPATRICK'S EVIDENCE
6
7 MR ELLIOTT: Commissioner, that's the examination.
8
9 THE COMMISSIONER: Mr Agius?
10
11 MR AGIUS: At the risk of delaying, if I could just have
12 two or three minutes to incorporate the material in that
13 last exhibit.
14
15 THE COMMISSIONER: Yes, by all means.
16
17 MR AGIUS: I know some of this material was to be the
18 subject of cross-examination and I just want to be sure
19 I don't waste time.
20
21 THE COMMISSIONER: You, of course, may save time.
22 Mr Elliott, do you have a spare copy of the transcript on
23 pages 32, 33 and 51?
24
25 MR ELLIOTT: I think I do, Commissioner
26
27 <EXAMINATION BY MR AGIUS:
28
29 THE COMMISSIONER: Yes, Mr Agius.
30
31 MR AGIUS: Thank you, Mr Commissioner.
32
33 Q. Mr Fitzpatrick, do you have a copy of your statement
34 with you?
35 A. Yes.
36
37 Q. Thank you. Would you agree, in relation to enterprise
38 bargain agreements, that it is in the interests of workers
39 that they be covered by an EBA with the CFMEU?
40 A. Yes.
41
42 Q. It is the practice, is it not, for the union to obtain
43 coverage in civil construction work so as to provide for
44 better wages and conditions for workers generally?
45 A. Yes.
46
47 Q. You agree, don't you, that the EBA is, as a matter of
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1 formality, entered into between the workers and the
2 employer and that the union becomes a party to the EBA as
3 a representative of the workers?
4 A. That's the correct terminology, I believe, today, yes.
5
6 Q. So the focus really is on the pay and conditions for
7 workers?
8 A. Yes, the benefits of the workers.
9
10 Q. And over your time with the union, you would have
11 seen, would you not, the rise of labour hire companies?
12 A. Oh, yes.
13
14 Q. Once upon a time it was not something that was common
15 and then in the construction industry one saw more and more
16 attempts by people to get labour hire companies up?
17 A. Yes. It started happening about 15 to 20 years ago,
18 yes.
19
20 Q. It started then?
21 A. Yes.
22
23 Q. And in part there was justification on the basis that
24 it was intended to be only supplementary labour to fill in
25 gaps in labour over short periods of time. That was the
26 argument that the constructors and labour hire company
27 proponents used, was it not?
28 A. It was specifically stated it was a supplementary
29 agreement in the early days, yes.
30
31 Q. But in practice, in your experience, you would have
32 seen, would you not, that some contractors preferred to use
33 labour hire companies rather than carry employees on their
34 own books?
35 A. Yes. It suited them because of the degree of workload
36 lifting for short periods and so on and - yes.
37
38 Q. And so that meant that labour hire companies became
39 a larger part of the industrial landscape in the
40 construction industry?
41 A. Yes. They become more prominent.
42
43 Q. And would you agree that the union had no say at all
44 in whether or not any particular person was a fit and
45 proper person to be running a labour hire company?
46 A. Well, I wouldn't agree with that. If somebody was
47 well known to the general public as a criminal identity,
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1 like Roger Rogerson or Domican who tried to push their way
2 into the industry, we rejected them.
3
4 Q. But you rejected them in the sense that you wouldn't
5 negotiate with them and you wouldn't enter into an EBA with
6 them?
7 A. That's right.
8
9 Q. But you couldn't stop them from running a labour hire
10 company?
11 A. No, but the purpose of them running a labour hire
12 company, they needed that union protection. So it was
13 pretty pointless of them having a labour hire company to
14 any size to make money because the reality is that the
15 companies that took them on mainly were the bigger
16 companies and the middle-sized companies and they tended to
17 use companies that had a legitimate award, an EBA, and that
18 could be enforced. They didn't want, you know, the
19 fly-by-nighters.
20
21 Q. That might have been their preference but you couldn't
22 stop people with criminal histories from attempting to run
23 a labour hire company?
24 A. We couldn't stop anybody because the system will take
25 anybody, but we had a principle that we didn't deal with
26 the underlings of society.
27
28 Q. At the time that Andrew Ferguson agreed to an EBA with
29 a labour hire company that was associated with Mr Alex,
30 George Alex, there was nothing known about his criminal
31 history, was there?
32 A. Well, there was nothing known to me and he wasn't as
33 prominent as he later become, but he was well known to
34 people more in tune with the systems like perhaps
35 Andrew Ferguson.
36
37 Q. You were a person who very much respected Mr Ferguson?
38 A. I had a great amount of admiration for Andrew. He was
39 our leader for sixteen years. He done a marvellous job,
40 a workaholic, and always maintained a very good image with
41 the workers. He worked very hard for the workers. I have
42 a great amount of respect and I still do today.
43
44 Q. And he in turn had enormous loyalty to the CFMEU, did
45 he not?
46 A. Well, we seen yesterday he was prepared to show that
47 loyalty.
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1
2 Q. When you say "yesterday", you do not accept some of
3 the evidence he gave?
4 A. No, he took a shot for the cause.
5
6 Q. If you just deal with my question. You don't accept
7 some of the evidence he gave yesterday
8 A. No, it was wrong.
9
10 Q. Yes. However, whilst you worked with him over
11 16 years or more, you found him to be very loyal, did you
12 not, to the union cause?
13 A. Oh, yes, he was union - well, to me he was union
14 through and through. He was from a long line of great
15 union leaders from the McDonalds down to the Matthews
16 through to him. They were all tremendous union leaders.
17 I had a great amount of respect for him and it was - he was
18 an inspiration to work with, yes.
19
20 Q. You also had, as you have said, a great deal of
21 respect for Don McDonald?
22 A. Enormous, yes.
23
24 Q. You also had a great deal of respect for Tom Roberts?
25 A. Yes, I liked Tom; he is a very good person, yes.
26
27 Q. You found him to be a straightforward person?
28 A. Up until yesterday.
29
30 Q. So really your case is that these upstanding people
31 who you trusted, three of them, have all given false
32 evidence in order to bring you down and to protect the
33 union?
34 A. Well, from what I've heard them say in evidence - and
35 I was here yesterday. I wasn't here for Ferguson.
36 I watched him on a computer - yes, they were prepared to
37 put the union first and everything second.
38
39 Q. And they're doing this just to get rid of you?
40 A. No, they're not doing it just to get rid of me. I was
41 already gone. They're doing this for what they hope for
42 will be the survival of the union.
43
44 Q. Yes, but you see yourself as a crusader who, but for
45 the opposition of people like that, you could bring the
46 union down?
47 A. I'm sorry?
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1
2 Q. You see yourself as a crusader who can bring the union
3 down?
4 A. No, I do not.
5
6 Q. Is that what you want your legacy to be?
7 A. Don't be so stupid. That's exactly the opposite of
8 what I'm about.
9
10 Q. I suggest to you that that is what you're about?
11 A. You may suggest it to me but I take great resentment
12 of that. I have been a union member of 48 years and I will
13 be a union member until the day I perish, but my idea is
14 not to destroy the union. My idea is to save the union,
15 hopefully.
16
17 Q. You stood for the position of Assistant Secretary in
18 the mid 2000s?
19 A. I stood for the position at the request of
20 Andrew Ferguson. I did not want to stand.
21
22 Q. You stood and you lost?
23 A. No. I stood at the request of Andrew Ferguson.
24
25 Q. What about my question. You stood and you lost;
26 that's true, isn't it?
27 A. I stood at the request of Andrew Ferguson at the last
28 minute because nobody else wanted the job. He asked me to
29 step up to the plate. I didn't want to do it. I did it
30 for the movement and for Andrew Ferguson and the numbers
31 went against me, yes.
32
33 Q. And indeed the person who beat you to the position was
34 a woman?
35 A. What?
36
37 Q. I'm sorry, I'll withdraw that.
38 A. You're probably wrong there.
39
40 Q. Yes, it's my error. The person who beat you to that
41 position was a much junior person to you?
42 A. It didn't matter to me.
43
44 Q. Yes or no?
45 A. What do you mean "much junior"? What do you mean?
46 What does that mean?
47
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1 Q. Didn't have your length of history with the union?
2 A. No, he was - he was somebody I brought on to the union
3 actually.
4
5 Q. What I suggest to you is that from that time on, that
6 is, from the time you lost that election, you became quite
7 sour?
8 A. No, not at all.
9
10 Q. And that that feeling of sourness has put you in
11 a situation where you are now prepared to blame the union
12 for anything that you've done. For example, I suggest to
13 you that you obtained the Lis-Con documents which we saw
14 yesterday through the examination of Mr Roberts, TR9,
15 yourself and that you are blaming Mr Parker as the person
16 who gave you those documents?
17 A. Mr Parker gave me those documents. He handed them to
18 me after arranging to get them with Lisa Zanatta.
19
20 Q. You see, I suggest to you that you obtained those
21 documents and that in order to protect your source and in
22 order, as well, to try and bring Mr Parker down, you have
23 nominated him as the person who gave them to you?
24 A. I completely and utterly reject that as nonsense.
25
26 Q. You see, you already had documents from Mr McWhinney,
27 didn't you?
28 A. Bob - I approached Bob, as my evidence says, and he
29 gave me - he sent me by email on the 12th, I believe it
30 was, Friday, the 12th, a copy of it, a one-month payment.
31
32 Q. You gave evidence about this on 15 July. I just want
33 to be sure how much of that evidence we can now rely on as
34 being supported by you. You were giving evidence at
35 page 42 in answer to my friend Mr Stoljar. He was asking
36 you, about halfway down the page, about your statement at
37 about paragraph 104. That is your statement at 104 you
38 say:
39
40 At some point McWhinney called back to
41 check that I had received an email from
42 him. I had not so I asked him to send it
43 to me again. On the 12th of July 2013,
44 I received two emails from him which had
45 some information about Lis-Con employees
46 and their entitlement position.
47
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1 And you have annexed the two emails and we have those. May
2 we accept that that evidence is evidence that you support
3 today, that you received the information from McWhinney
4 about Lis-Con on 12 July?
5 A. I'm just reading the statement. Yes, apparently he
6 sent the first one. He spelt my name wrong and it didn't
7 turn up, I think that was the fax, and he sent it in again.
8
9 Q. That is a fixed date, isn't it, 12 July? We can work
10 from that date being reliable if only because that is the
11 date of the email?
12 A. Well, I believe so. That's - to the best of my
13 memory, that's what happened, yes.
14
15 Q. Friday, the 12th?
16 A. Yes.
17
18 Q. And from that material, you were able to give this
19 evidence at the bottom of page 42. You were asked this
20 question:
21
22 What happened then? Was Mr Parker happy
23 with that or did he want some more
24 information?
25
26 And you said:
27
28 No. Parker said, "Look" - because he
29 supplied me with one - the last payment,
30 which was the February-March payment, the
31 end of February to the end of March
32 payment, that was the last payment they had
33 made.
34
35 A. Yes.
36
37 Q. Now, what you were intending by that answer was that
38 you had information from McWhinney that the last payment
39 that Lis-Con had made related to February-March; is that
40 right?
41 A. From memory I'm going here, that when I spoke to Bob,
42 he agreed to supply one month, which was the last payment
43 date submitted, and that was a payment from 28 February,
44 I think he said, to the end of March and this was in July,
45 so it made them four to five months behind, yes.
46
47 Q. And then you go on to say:
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1
2 We're talk now talking about July. We're
3 talking about five months behind Bus and
4 ACIRT further and we're talking about
5 a massive amount of workers. We're talking
6 about $1 million, more than likely, in
7 arrears.
8
9 A. Yes.
10
11 Q. And then you explained how you came to that figure?
12 A. Yes.
13
14 Q. You got out your little calculator.
15 A. Yes.
16
17 Q. You operated it. You multiplied it by something like
18 300 men and you came up with a figure of $1 million?
19 A. Yes, a ballpark figure, yes.
20
21 Q. Yes. That figure and those facts that no payments had
22 been made for about five months, that was enough
23 information for the union to take action against Lis-Con,
24 was it not?
25 A. Oh, yes.
26
27 Q. That was enough to permit the union to go to Lis-Con,
28 confront them with that information and demand that they
29 take action to bring the Cbus and ACIRT payments up to
30 date?
31 A. Yes.
32
33 Q. But you chose not to take that course, isn't that
34 right?
35 A. I didn't say I chose not to take it. I reported it to
36 the National Executive meeting and it was decided to be
37 done.
38
39 Q. You chose to take the course --
40
41 MR MORISON: Can the witness be allowed to answer the
42 question?
43
44 MR AGIUS: Q. Do you want to add any more to that answer?
45 A. Yes, I was about to but you interrupted me quite
46 rudely.
47
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1 Q. Please do.
2 A. I notified Brian because I'd had a call from a worker
3 on the Mascot site at the airport where they were working
4 for Laing O'Rourke, which made me start to investigate and
5 I asked Brian. Brian sent some officials to the site at
6 Laing O'Rourke to follow it up.
7
8 Q. Do you want to add anymore to that answer?
9 A. That's the action I took, yes, and so I didn't - my
10 job was not to send officials unless they were in my area
11 and - of course, this was a huge amount of money. It had
12 to be passed up the chain to Brian and then discussed at,
13 you know, a formal level how we're going to handle it.
14
15 Q. But then you decided that you would advance the cause
16 of the union by obtaining more detailed information about
17 Lis-Con?
18 A. No.
19
20 Q. And you decided that you would attempt to ingratiate
21 yourself with the union by adopting the course of using
22 that information to contact individual employees pretending
23 to be a person from Cbus?
24 A. No.
25
26 Q. But you did, did you not --
27 A. I did, yes, but not for those reasons.
28
29 Q. You contacted individual workers by phone?
30 A. I did.
31
32 Q. Using the material that had been obtained from Cbus?
33 A. No.
34
35 Q. Isn't that where you got their phone numbers from?
36 A. No, I didn't - I didn't do that. Those calls were
37 made on 30 July.
38
39 Q. And didn't you --
40 A. By that time Brian had given me the copy he got from
41 Bus.
42
43 Q. Didn't you use the material in the Lis-Con related
44 documents that were obtained from Cbus?
45 A. The copy that Brian gave me had all the information
46 and it had the phone numbers, the whole bit.
47
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1 Q. You say that Mr Parker gave you those documents?