Halafihi Kivalu

Chapter 6.2

halafihi kivalu

Subject / Paragraph /
A –  INTRODUCTION / 1
B –  ELIAS TALEB / 9
Payments in respect of the Yarralumla job / 10
Payments in connection with Denham Constructions job / 20
Gungahlin job / 22
Habitat job / 24
Elias Taleb ceases making payments / 25
Evidence of builders / 30
C – MEDWHAT ELEISAWY / 37
D – TONY BASSIL / 41
E –  PAYMENTS BY JIAN YU ‘JACKIE’ HE / 45
F –  PAYMENTS BY JOHN DOMITROVIC / 52
G –  HALAFIHI KIVALU CEASES TO BE EMPLOYED BY THE CFMEU / 57
H –  KNOWLEDGE ON THE PART OF OTHER OFFICIALS AT THE CFMEU / 67
Johnny Lomax / 73
Zachary Smith / 85
Jason O’Mara / 96
Anthony Vitler and Kenneth Miller / 100
Dean Hall / 101

A –  INTRODUCTION

1.  Halafihi Kivalu commenced working for the CFMEU in about 2006.[1] He was initially employed by the CFMEU as an organiser. In due course he was promoted to lead organiser. A number of other organisers appear to have reported to him, including Anthony Vitler, Johnny Lomax, Brett Harrison, Cameron Hardy, Zachary Smith and Kenneth ‘Dusty’ Miller.[2] He reported to the assistant secretary, Jason O’Mara. As lead organiser Halafihi Kivalu said that he looked after plasterers, traffic control, labour hire and painters.[3] Halafihi Kivalu was widely known as ‘Fihi’. He was a member of the Branch Committee of Management (BCOM).

2.  Halafihi Kivalu ceased to be employed as an organiser by the CFMEU in late 2014. However, he remained as a member of the BCOM until the commencement of the Commission’s hearings in Canberra in 2015.[4]

3.  The evidence included allegations that, over a period of about two years while employed by the CFMEU, he demanded and received cash and other payments from a variety of employers. In summary, witnesses who gave evidence before the Commission alleged that Halafihi Kivalu received the following payments:

(a)  $135,000 from Elias Taleb in various cash instalments;

(b)  $40,000 in a series of further cash cheques given to him by Medwhat Eleisawy or others from MDS Tiling Pty Ltd;

(c)  $30,000 by cheque made in favour of his wife from JohnDomitrovic; and

(d)  $5,000 from Jian Yu He.

4.  Halafihi Kivalu was charged with offences in connection with some of these payments at the conclusion of his oral evidence. He has pleaded not guilty. The matter is presently before the criminal courts of the ACT.

5.  In the above circumstances, counsel assisting submitted that no findings should be made against Halafihi Kivalu and no conclusions should be drawn regarding his conduct. The submissions of counsel assisting about his conduct were confined to setting out the allegations raised in the evidence.

6.  Halafihi Kivalu was represented during the hearings. But he did not make any submissions to the Commission. The CFMEU did not dissent from the course taken by counsel assisting.

7.  In the above circumstances, it is appropriate to adopt the course taken by counsel assisting and to recite the summary of the evidence in their submissions. Recital of this evidence should not be taken to imply its acceptance. It is for the forum in which Halafihi Kivalu will defend the charges laid against him to determine whether any of the allegations are to be accepted.

8.  Counsel assisting’s submissions are set out in sections B – F, below. The final two sections of this Chapter, G and H, deal with discrete topics. One is the payments made to Halafihi Kivalu on the termination of his employment by the CFMEU. The other is the question of how much other CFMEU officials knew of allegations regarding Halafihi Kivalu.

B –  ELIAS TALEB

9.  Elias Taleb at all relevant times conducted a formwork business in Canberra through a company known as Class 1 Form Pty Ltd (Class 1 Form). In summary, his evidence was that he paid Halafihi Kivalu a series of cash payments from about June 2012 through to November2013.

Payments in respect of the Yarralumla job

10.  Elias Taleb’s evidence was that he began to make payments to Halafihi Kivalu in the following circumstances.

11.  In around 2011, he became aware of a job to complete formwork for a block of 38 residential units at 41 Hampton Circuit, Yarralumla.[5] Elias Taleb’s evidence was to the effect that he was told by Halafihi Kivalu that in order to win this job (which he had by this stage committed himself or his company to in a financial sense) it would be necessary to make a payment to Halafihi Kivalu. Elias Taleb said in his witness statement:[6]

Fihi said words to the effect ‘it will be 50 grand for this job, and if you don’t pay someone else will, and they will get the job’. If I missed out on the job it would have had very bad financial consequences for me. I understood from what he told me that if I paid Fihi $50,000, I was guaranteed the job.

12.  According to Elias Taleb, he and Halafihi Kivalu reached an arrangement pursuant to which the $50,000 would be paid in five instalments of $10,000, upon completion of five stages of the job.

13.  Elias Taleb’s evidence was that on 8 June 2012 he withdrew $32,000 in cash from Class 1 Form’s bank account for that day.[7]

14.  Elias Taleb’s evidence was that on 12 June 2012 when Halafihi Kivalu visited Class 1 Form’s office Elias Taleb handed him an envelope with $10,000 in cash in it.[8]

15.  The oral evidence of Elias Taleb concerning the first payment made of $10,000 made by him included the following:[9]

Q. … Did you feel like you had a choice other than to give him that money?

A. No.

Q. What would happen if you didn’t give it to him?

A. Basically, if we don’t do memberships, or whatever, they usually go to the site, harass everyone, all workers to site, to the site shed, just giving us a hard time, till the builder put pressure on the contractor to sort it out.

Q. When you say “put worker in the shed”, you mean stop them working and –

A. Stop all employers from working if they’re not financial, if we’re not paying in, or whatever.

16.  Elias Taleb’s evidence was that he paid the next – the second – instalment of $10,000 in cash on or about 17 August 2012. This followed a withdrawal of two amounts of cash of $30,000 and $12,000 respectively from Class 1 Form’s bank account shortly prior to that date.[10]

17.  Elias Taleb’s evidence was that on or about 16 November 2012 he paid Halafihi Kivalu the sum of $20,000 in cash, comprising both the third and the fourth payments.[11]

18.  According to Elias Taleb, the final payment of $10,000 was made on or about 28 March 2013.[12]

19.  Thus, according to Elias Taleb’s evidence, in connection with the job at Hampton Circuit, Yarralumla, he paid Halafihi Kivalu in total $50,000 in cash in four instalments.

Payments in connection with Denham Constructions job

20.  Elias Taleb’s evidence was that he made further payments to Halafihi Kivalu in relation to a retirement village comprising 77 units in Griffith, ACT. The builder on the project was Denham Constructions. According to Elias Taleb he and Halafihi Kivalu agreed that Elias Taleb would again pay $50,000 by instalments in respect of this job.[13]

21.  According to Elias Taleb, on 22 March 2013 he made the first payment of $20,000.[14] His evidence was that he then made two further payments for this job, one for $20,000 and the other for $10,000.[15] The final payment of $10,000, on Elias Taleb’s evidence, was made on 21 October 2013.[16]

Gungahlin job

22.  Elias Taleb also gave evidence that he made a further payment of $15,000 in cash to Halafihi Kivalu on or about 19 July 2013 in relation to a job in Gungahlin. The builder was ADCO Building Developments Pty Ltd (ADCO). Elias Taleb’s evidence was that he was working closely on that job with Clive Arona, the owner of Multi-Crete (Aust) Pty Ltd, a concreting company operating in the ACT.[17]

23.  According to Elias Taleb, he and Clive Arona met with Halafihi Kivalu at a coffee shop near the ADCO site. Elias Taleb said that he paid Halafihi Kivalu $15,000 in cash in an envelope in the presence of Clive Arona.[18]

Habitat Job

24.  Elias Taleb gave evidence that he made another payment to Halafihi Kivalu, in November 2013, of $20,000 in cash, again in an envelope. This time, according to Elias Taleb, the money was handed over at Gus’s Café.[19] Elias Taleb said that this time the payment was in respect of the Habitat job. The Habitat job was a development comprising 44 units in Braddon.[20]

Elias Taleb ceases making payments

25.  Elias Taleb’s evidence was that at around about this time (that is, late 2013) he became fed up with making payments to Halafihi Kivalu and told him that he would not make any more.[21] Elias Taleb’s evidence was that an agreement was reached with Halafihi Kivalu pursuant to which he and Clive Arona would assist Halafihi Kivalu by carrying out building work on a shed and a house on land owned by a relative of Halafihi Kivalu. Elias Taleb’s evidence was to the effect that the arrangement was that Elias Taleb and Clive Arona would do the ‘build, the formwork and the concrete and pumping for free’ and also provide the labour.[22] Ultimately, according to Elias Taleb, this arrangement did not progress beyond the provision of structural drawings by Elias Taleb to Halafihi Kivalu.[23]

26.  Elias Taleb’s evidence was that in due course a dispute broke out between him and Halafihi Kivalu concerning whether any more money was owed.

27.  Elias Taleb said that at one point, in about April 2015, he was approached by one of Class 1’s employees, Tuungafasi Manase, and told that a friend of Tuungafasi Manase, namely David Pattison, had been engaged by Halafihi Kivalu to collect money from him. David Pattison is also a relative of Tuungafasi Manase. According to Elias Taleb, Tuungafasi Manase showed Halafihi Kivalu a piece of paper that he said was prepared by him by copying from a file he had seen in David Pattison’s office. According to Elias Taleb, Tuungafasi Manase gave him to understand that that file had been given to David Pattison by Halafihi Kivalu.[24]

28.  Elias Taleb says that he took a photograph of that piece of paper, and a copy of that photograph was in evidence.[25] The piece of paper, as depicted in that photograph, records the names or the four jobs referred to above, and an amount of money next to each job, with a total of ‘$170K’. It also records a series of dates with sums of money next to them. At the bottom is recorded ‘$80K Balance’ and ‘Interest on Top $20K’.

29.  Elias Taleb identified the handwriting on this document as that of Tuungafasi Manase.[26] Tuungafasi Manase gave evidence. He denied that the handwriting depicted on this document was his. Tuungafasi Manase has been charged with perjury and so it is neither appropriate to discuss his evidence nor the question of whose handwriting is in fact on the document. The comments made above concerning Halafihi Kivalu also applied to Tuungafasi Manase.[27] The document nonetheless is of some significance for other purposes, because it was shown (on Elias Taleb’s phone) to Dean Hall during a meeting with Elias Taleb in June 2015.

Evidence of builders

30.  Elias Taleb claimed that he made the above payments to assist Class 1 Form in obtaining work. In fact, Class 1 Form did obtain contracts on each of the jobs in respect of which Elias Taleb said he made payments to Halafihi Kivalu. Representatives from the builders on three of the jobs gave evidence at the Commission. It is appropriate to refer, again in relatively short form, to their evidence.

31.  Adam Jeffrey was in charge of the tender process for the Habitat job with Morris Group. He was in need of a third subcontractor for the tender of the formwork on the job. One of his seniors, Alex Shonte, gave him the name of Class 1 Form and told him to give Class 1 Form a call. He said that “[Class 1 Form] was a contractor who was okay by the Union.”[28] He called Elias Taleb, asked him whether Class 1 Form had an EBA, and invited him to tender for the project.

32.  Adam Jeffrey said that the decision to award Class 1 the job was made by him in conjunction with his two bosses. There were two other tenderers. The first, Pacific Formwork, was too expensive. The second, IC Formwork, had a price that was competitive with, and possibly cheaper than, Class 1 Form. Adam Jeffrey’s evidence was that, prior to the decision on the tender, he had been told by Halafihi Kivalu that there were no problems from the CFMEU’s point of view with any of the three contractors who had tendered for the job.[29] He said that the decision was made to use Class 1 Form because they wanted to grow with a new company who would perhaps show them some loyalty in the future.[30] Adam Jeffrey gave evidence to the effect that the CFMEU generally would ask who was tendering for a job.[31] He said that it was common in the construction industry for unions to enquire about the contractors proposed to be used on a job and that sometimes he would chose to tell them and sometimes not.[32]

33.  Adam Jeffrey said it was possible that he had contact with the CFMEU between the time he told Elias Taleb that his tender was successful and the time of the contract being signed. He was asked whether the CFMEU raised with him the question of whether or not Class 1 Form had an up to date EBA. He said:[33]

The Union, when they have rung, usually say, “There is an issue.” I selectively don’t want to know what that issue is. We have made a decision to award a contractor a job, so I am often told what the issue may be; you know, he’s not up to date with his superannuation payments, he’s not up to date with this, not up to date with that. I may have been told he had an EBA. My usual response to any organiser who has rung me and gone, “We have a problem”, I go, “Well, it’s not my problem, it’s your problem to deal with the contractor.” Now, in the process of communication with any contractor over anything, for example, maybe ringing Elias and saying, “Can you get in here and sign the contract?”, I would say, “Oh, we’ve had a call, apparently you’ve got an issue, it would be great if you can resolve it, but it’s your problem, it’s not my problem.”