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

.24/09/2014 (3) 292

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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?

.24/09/2014 (3) 293 B R FITZPATRICK (Mr Elliott)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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

.24/09/2014 (3) 294 B R FITZPATRICK (Mr Agius)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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,

.24/09/2014 (3) 295 B R FITZPATRICK (Mr Agius)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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.

.24/09/2014 (3) 296 B R FITZPATRICK (Mr Agius)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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?

.24/09/2014 (3) 297 B R FITZPATRICK (Mr Agius)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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

.24/09/2014 (3) 298 B R FITZPATRICK (Mr Agius)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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

.24/09/2014 (3) 299 B R FITZPATRICK (Mr Agius)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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:

.24/09/2014 (3) 300 B R FITZPATRICK (Mr Agius)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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

.24/09/2014 (3) 301 B R FITZPATRICK (Mr Agius)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

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

.24/09/2014 (3) 302 B R FITZPATRICK (Mr Agius)

Transcript produced by Merrill Corporation

UNCORRECTED PROOF

1 Q. You say that Mr Parker gave you those documents?