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Smears left unanswered at the royal commission in trade unions will stick Smears left unanswered at the royal commission on trade unions will stick
(about 3 hours later)
At one of the first Melbourne hearings of the royal commission into trade union governance and corruption on 8 July, developer Peter Chiavaroli gave hearsay evidence that he was told underworld figure Mick Gatto could “solve” a problem with the Construction Forestry Mining and Energy Union for $50,000.At one of the first Melbourne hearings of the royal commission into trade union governance and corruption on 8 July, developer Peter Chiavaroli gave hearsay evidence that he was told underworld figure Mick Gatto could “solve” a problem with the Construction Forestry Mining and Energy Union for $50,000.
His son, Leigh Chiavaroli, said CFMEU construction and general division Victorian secretary John Setka ordered him to sack a concrete contractor because he was the brother-in-law of Daniel Grollo, the executive director of developer Grocon who is regarded as a nemesis of the union.His son, Leigh Chiavaroli, said CFMEU construction and general division Victorian secretary John Setka ordered him to sack a concrete contractor because he was the brother-in-law of Daniel Grollo, the executive director of developer Grocon who is regarded as a nemesis of the union.
The witness claimed Setka said “I hate the cunt [Grollo’s brother in law], I’m going to come down there rip his head off, shit down his throat, and bury his head next to Ned Kelly’s”.The witness claimed Setka said “I hate the cunt [Grollo’s brother in law], I’m going to come down there rip his head off, shit down his throat, and bury his head next to Ned Kelly’s”.
It’s colourful stuff, dutifully reported by journalists present – and still untested by cross-examination two months later. The commission has been criticised as a political witch-hunt from its inception. Now, after five months of hearings, with only one month to go and a report due by year’s end, we can start to make an assessment of the process.It’s colourful stuff, dutifully reported by journalists present – and still untested by cross-examination two months later. The commission has been criticised as a political witch-hunt from its inception. Now, after five months of hearings, with only one month to go and a report due by year’s end, we can start to make an assessment of the process.
Union parties have complained of procedural unfairness at the commission. Parties have not been automatically granted the right to cross-examination. The commission has two sets of rules: one allows cross-examination immediately after a witness gives evidence, as would occur in a regular court. The other grants parties no such right.Union parties have complained of procedural unfairness at the commission. Parties have not been automatically granted the right to cross-examination. The commission has two sets of rules: one allows cross-examination immediately after a witness gives evidence, as would occur in a regular court. The other grants parties no such right.
The commissioner makes the decision on which practice direction to use. The commission says “in exercising his discretion, he will take a practical approach and consider all relevant factors, including witness availability, to ensure that all competing interests are treated fairly”. In the second case, a party must produce contrary evidence, apply to cross-examine a witness and then hope to get a shot at their credibility months after they have testified.The commissioner makes the decision on which practice direction to use. The commission says “in exercising his discretion, he will take a practical approach and consider all relevant factors, including witness availability, to ensure that all competing interests are treated fairly”. In the second case, a party must produce contrary evidence, apply to cross-examine a witness and then hope to get a shot at their credibility months after they have testified.
Australian Council of Trade Unions assistant secretary Tim Lyons wrote to the commission in March, outlining his concern that such a procedure was “unfair to persons and organisations that might be the subject of untested allegations”. The concern has so far been justified.Australian Council of Trade Unions assistant secretary Tim Lyons wrote to the commission in March, outlining his concern that such a procedure was “unfair to persons and organisations that might be the subject of untested allegations”. The concern has so far been justified.
In another instance of cross-examination gone missing, the commission heard the CFMEU engaged in an industrial war against Lis-Con in Queensland because it refused a union-backed enterprise agreement. Thomson Reuters’ industrial relations news service Workforce reported Lis-Con was behind $5.2m in payroll tax up to September 2012, suggesting that solvency concerns may have been the union’s real motivations. But the cross-examination of the Chiavarolis, and of witnesses involved in the Lis-Con matter, will only take place in the final month of hearings.In another instance of cross-examination gone missing, the commission heard the CFMEU engaged in an industrial war against Lis-Con in Queensland because it refused a union-backed enterprise agreement. Thomson Reuters’ industrial relations news service Workforce reported Lis-Con was behind $5.2m in payroll tax up to September 2012, suggesting that solvency concerns may have been the union’s real motivations. But the cross-examination of the Chiavarolis, and of witnesses involved in the Lis-Con matter, will only take place in the final month of hearings.
Fortunately, some of the hearings have included immediate cross-examination. On one occasion the CFMEU’s counsel John Agius was able to extract an exquisite concession that the Queensland major contractors association, an employer sponsor of a redundancy fund jointly managed with the CFMEU, had received an exclusive benefit in the form of a return-to-work scheme not available to others.Fortunately, some of the hearings have included immediate cross-examination. On one occasion the CFMEU’s counsel John Agius was able to extract an exquisite concession that the Queensland major contractors association, an employer sponsor of a redundancy fund jointly managed with the CFMEU, had received an exclusive benefit in the form of a return-to-work scheme not available to others.
Benefits like that were the very thing the CFMEU was accused of achieving for its members. The witness called to testify that the union kettle was black had admitted employers played the part of the pot.Benefits like that were the very thing the CFMEU was accused of achieving for its members. The witness called to testify that the union kettle was black had admitted employers played the part of the pot.
Like in any legal process, cross examination helps the court or commission to do its job. For instance, Health Services Union barrister Mark Irving got former HSU national secretary Kathy Jackson to admit that on 30 June 2010 she made a $63,000 ex gratia payment to herself from the Victorian No3 branch’s funds, despite the fact she was no longer secretary of the branch, which had been amalgamated into HSU East. Jackson had attempted to prevent Irving having his turn by claiming he had a vendetta against her after a decades-old fling with him, which she later described as a “charity shag”.Like in any legal process, cross examination helps the court or commission to do its job. For instance, Health Services Union barrister Mark Irving got former HSU national secretary Kathy Jackson to admit that on 30 June 2010 she made a $63,000 ex gratia payment to herself from the Victorian No3 branch’s funds, despite the fact she was no longer secretary of the branch, which had been amalgamated into HSU East. Jackson had attempted to prevent Irving having his turn by claiming he had a vendetta against her after a decades-old fling with him, which she later described as a “charity shag”.
The commission’s justification for not automatically allowing cross-examination is to prevent “undue delay” to allow it to report back by its 31 Decembe 2014 deadline. While fairness is also a criterion, Commissioner Dyson Heydon has absolute discretion to decide that what would be a basic right in any court should be less of a priority to the arbitrary timeline imposed by the government. According to letters patent and the Royal Commissions Act, whatever Heydon says goes.The commission’s justification for not automatically allowing cross-examination is to prevent “undue delay” to allow it to report back by its 31 Decembe 2014 deadline. While fairness is also a criterion, Commissioner Dyson Heydon has absolute discretion to decide that what would be a basic right in any court should be less of a priority to the arbitrary timeline imposed by the government. According to letters patent and the Royal Commissions Act, whatever Heydon says goes.
So far, cross-examination has been deterred, denied or limited, meaning one side suffered a major procedural disadvantage; or it has been always allowed, meaning there has been no efficiency gain. The commission has told me nobody has been denied an application for cross-examination so far. When it is allowed, it is often only months after explosive claims and damaging headlines. Even if contrary evidence is eventually heard and duly reported in the media, smears left unanswered for some time tend to stick.So far, cross-examination has been deterred, denied or limited, meaning one side suffered a major procedural disadvantage; or it has been always allowed, meaning there has been no efficiency gain. The commission has told me nobody has been denied an application for cross-examination so far. When it is allowed, it is often only months after explosive claims and damaging headlines. Even if contrary evidence is eventually heard and duly reported in the media, smears left unanswered for some time tend to stick.
Ordinarily, managing the reputation of a party involved in litigation or a commission is a secondary concern at best. But part of this commission’s job is to look at the adequacy and effectiveness of laws governing unions. To allow an exaggerated impression of wrongdoing to take hold – and to backfill reasonable doubts later – is likely to push people to demand more regulation than is necessary to combat the actual amount of harm being done.Ordinarily, managing the reputation of a party involved in litigation or a commission is a secondary concern at best. But part of this commission’s job is to look at the adequacy and effectiveness of laws governing unions. To allow an exaggerated impression of wrongdoing to take hold – and to backfill reasonable doubts later – is likely to push people to demand more regulation than is necessary to combat the actual amount of harm being done.
Don’t get me wrong, the commission has uncovered a reasonable amount of union corruption, including Kathy Jackson’s alleged misuse of HSU members’ money. It has provided the most thorough investigation to date of Australian Workers Union associated slush funds and alleged threats against whistleblower Brian Fitzpatrick, after he complained of CFMEU NSW links to underworld figure George Alex.Don’t get me wrong, the commission has uncovered a reasonable amount of union corruption, including Kathy Jackson’s alleged misuse of HSU members’ money. It has provided the most thorough investigation to date of Australian Workers Union associated slush funds and alleged threats against whistleblower Brian Fitzpatrick, after he complained of CFMEU NSW links to underworld figure George Alex.
The commission could have done all this without giving its opponents ammunition to denounce it as a show trial. Meanwhile, I’m still waiting for Johnnie Setka to be called. I want someone to ask him if he really knows where Ned Kelly’s head is buried.The commission could have done all this without giving its opponents ammunition to denounce it as a show trial. Meanwhile, I’m still waiting for Johnnie Setka to be called. I want someone to ask him if he really knows where Ned Kelly’s head is buried.