10AM has been and gone. 10.05 and we're away.
3 statements from Fihi Kivalu were tendered and received into evidence.
The first witness is Sam Delorenzo.
Mr Stoljar's brief questions related to Mr De Lorenzo's work history and the adoption and tender of his statement.
At 10.08 Mr Agius commenced his cross-examination of Mr De Lorenzo.
Mr Agius quizzed Mr De Lorenzo about "lockdown days" - a term I was unfamiliar with until today. Here's the calendar for RDOs/Lockdown Days for the year in question, 2014.
The MBA has more about lock-down days here:
Mr De Lorenzo stated that he does not recognise CFMEU lockdown days.
Mr Agius is now presenting the familiar routine of photographs of Mr De Lorenzo's construction site with what the CFMEU contends are safety breaches.
Mr De Lorenzo agrees that an extension cord placed on a milk-crate represents a safety issue - however he states that he was unaware that anything like that occurred at his site.
He states that he wasn't present when the photos were taken - he agrees that the photos represent safety issues.
Mr De Lorenzo's evidence is very straightforward - yes, no answers. He recalls one incident involving extension cords - he states they were only in the situation photographed briefly, he corrected it on the day.
The entirety of Mr Agius's cross-examination of Mr De Lorenzo thus far consists of showing photographs that are said to be of unsafe situations (mostly involving extension cords) on Mr De Lorenzo's construction sites.
Mr Lorenzo's statement apparently contains a claim that there were no safety issues brought to his attention on his construction sites. You have to wonder what the point is of taking photographs of allegedly unsafe situations only to hold them for production to the construction company manager at the Royal Commission, rather than as the purportedly unsafe situations arose.
At about 10.30 Mr Agius completed his cross-examination.
Mr Morison is now examining his witness Mr De Lorenzo.
Under questioning from Mr Morison, Mr De Lorenzo stated that CFMEU officials visited his site on one occasion and some safety issues (minor) were mentioned on the day. There was no follow-up action from the CFMEU after the visit - prior to the entry onto the site Mr De Loreno was not informed of any safety issues either.
Mr De Lorenzo felt intimidated by the CFMEU officials on the day. He was unsatisfied with the permits produced by the officials, they appeared to be photocopied pieces of paper folded in the officials wallets, Mr De Lorenzo could not read them.
At 10.39 Mr Morison completed his re-examination of Mr De Lorenzo.
Mr Stoljar asked, "What do you mean by the phrase in your statement 'Dean, this is a construction site, you'll find safety risks if you look hard enough'".
Mr De Lorenzo explained about safety and risk management. He was the Chair of the Commercial Council of the Master Builders Association for 8 years, he has been in construction for 40 odd years and has considerable experience in construction. He stated that at any moment passing hazards may be found, the process of safety management involves managing hazards and managing risks. Construction involves moving things, lifting things and the like - house-keeping photographs may show things that need attention at a moment in time and Mr De Lorenzo states that on sites under his control his policy is that those types of issues are attended to.
The Stoljar/De Lorenzo chat about safety was quite useful to laymen and newcomers to the construction caper (like me), Mr De Lorenzo's commentary about safety is sensible, measured and very much safety first. One thing emerges - safety is a pressing, immediate issue, not an issue upon which points should be scored particularly long after the event.
Mr Stoljar is now revisiting the Agius/CFMEU photographs and eliciting a narrative from Mr De Lorenzo in a constructive and real-world fashion. This is markedly at odds with the Agius presentation of the photographs which was accusatory and point-scoring.
Mr Stoljar's approach to the evidence this morning will be helpful as he comes to write his submissions on the matter of safety, in particular legitimate safety issues versus the invocation of "safety" by the CFMEU as a means to potentially extract other outcomes.
Mr De Lorenzo is a very knowledgable and straightforward witness and not at all defensive, it's a pleasure to listen to his conversation with Mr Stoljar over the past 20 minutes or so.
Well might Mr Agius hang his head.
Mr Stoljar, "Did anyone from the union send you these photos?"
De Lorenzo, "No."
Stoljar, "So you saw them for the first time here at the Commission?"
De Lorenzo, "Yes".
Stoljar, "Did you receive any rectification notices from WorkSafe or the union?"
De Lorenzo, "No, nothing."
Mr De Lorenzo explained that there could be an extension lead on the ground briefly - but the process of setting up would require it to be picked up properly.
At 10.59 Mr De Lorenzo was excused.
The next witness is Detective Sergeant Battye.
Detective Sergeant Battye is with the Australian Federal Police in the ACT. He has made a witness statement which he's adopted and it's been tendered into evidence.
He was present at the "Beaconsfield" construction site in 2012 on the morning police were called. He recalls seeing 3 union officials and being approached by a 4th who he now knows to be Mr Lomax.
He states that Lomax approached him "within his personal space", Lomax "flashed" a card in front of the detective's face, inches away from his nose.
The detective said "If you're using that card as the basis for being here, I need to see it properly as well as some identification".
Sergeant Battye states that he was there to investigate a trespass, he took Lomax's permit card and commenced to transcribe the details of it into his police notebook. Lomax then snatched it back and hindered Sergeant Battye in his attempts to note the details on the card (my interpretation).
Sergeant Battye states that he felt that Lomax was intimidating him - he states that he instructed Lomax not to walk around the site intimidating people, he states that he told Lomax that he would be locked up if he continued to intimidate people at the site.
Sergeant Battye has denied using words apparently attributed to him in witness statements (presumably from Lomax and/or other CFMEU officials).
Sergeant Battye states that he had a reasonable conversation with Mr O'Mara of the CFMEU. He states that when he asked why the CFMEU was present on site he received circular, non-specific answers of a general nature. He was not told at any point of specific safety concerns.
After speaking to both the construction site managers and the CFMEU (i.e. both sides of the dispute) Sergeant Battye states that he was not informed by any party of any specific safety issues.
At 11.09 Mr Stoljar completed his examination.
Mr Agius is cross-examining Sergeant Battye.
He starts by asking "What did you know of the law relating to union officials and their right of entry to work places?"
Battye, "Not much".
Sergeant Battye states that he has been a workplace union delegate himself, although he doesn't know much of the construction industry.
Agius, "You had no evidence that any persons had been intimidated, did you?"
Battye, "Mr Lomax intimidated me".
Sergeant Battye is a good professional witness - he is frank in his evidence that he and the other police onsite were confronted with an unusual and for them unprecedented situation. Mr Agius has not shaken him in his cross-examination.
It's clear that the CFMEU considers the police to be hostile - Mr Agius is very much on the attack over the Sergeant's evidence. If the CFMEU was present on the site for entirely legitimate reasons it's difficult to understand why the attack on the police.
Mr Agius to Sergeant Battye, "I suggest that if anybody was doing the intimidating it was you. You were using your position as a police officer to intimidate those union officials."
Mr Agius wouldn't want to speed on the way home.
Sergeant Battye states that he considered arresting Mr Lomax for trespass and for common law breach of the peace. Eventually Mr Lomax left.
Agius, "Did you ever consider that you were hindering Mr Lomax while he exercised his right of entry on that site?'
Sergeant Battye stated that WorkCover were attending and the presence of the union was not necessary given that the appropriate regulatory authority was present.
Mr Agius just kicked a very significant own-goal - he asked Sergeant Battye to "name one" of the breaches of the workplace safety act he thought Mr Lomax had committed.
Sergeant Battye said, "I'll name 5" he then proceeded to quote from the legislation with apparent authority.
At 11.41 Mr Agius completed his cross examination. It's difficult to see what he achieved.
Sergeant Battye was excused from further attendance.
THE COMMISSION IS ADJOURNED UNTIL NOON
AT NOON THE COMMISSION RESUMED
Dennis Milin re-appears for cross-examination by Mr Agius.
Mr Stoljar handed Mr Milin over to Mr Agius.
The cross-examination consists of Mr Agius identifying propositions put by Mr Milin in his statement or evidence in chief, then putting to Mr Milin that the thing done or said never happened.
Occasionally Mr Agius imputes a motive on behalf of Mr Milin - "you did that because......".
Thus far Mr Milin hasn't altered his evidence.
At 12.19 Mr Agius completed his perfunctory cross-examination.
Mr Chin has a couple of questions.
At 12.25 Mr Milin was excused from further attendance.
THAT CONCLUDES THE WITNESSES FOR TODAY
THE COMMISSION IS ADJOURNED UNTIL TOMORROW.