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ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION

Level 19, 55 Market Street, Sydney, NSW 2000

On Wednesday, 8 July 2015 at 10am

Before the Commissioner: The Hon. John Dyson Heydon AC QC

Counsel Assisting: Mr J Stoljar SC Mr Richard Scruby

Instructed by: Minter Ellison, Solicitors

.08/07/2015 AWU SHORTEN 1 Transcript produced by DTI

1 THE COMMISSIONER: Yes, Mr Stoljar. 2 3 MR STOLJAR: May it please the Commission, I appear with 4 Mr Scruby. There are some other appearances. 5 6 THE COMMISSIONER: Yes. Yes, Mr Myers? 7 8 MR A MYERS: Mr Commissioner, I appear with Mr Clelland. 9 I ask for leave to appear on behalf of Mr Shorten who is 10 the witness to be called this morning. 11 12 THE COMMISSIONER: Yes, that leave is granted. Any other 13 appearances? Very well. Yes, Mr Stoljar? 14 15 MR STOLJAR: I call Mr Shorten. 16 17 <WILLIAM RICHARD SHORTEN, sworn: [10.03am] 18 19 <EXAMINATION BY MR STOLJAR: 20 21 MR STOLJAR: Q. Your full name is William Richard 22 Shorten? 23 A. Yes. 24 25 Q. You're a member of Commonwealth Parliament? 26 A. I am. 27 28 Q. And when not in Canberra, you're a resident of 29 Victoria? 30 A. Yes. 31 32 Q. Just by way of background, you joined the Australian 33 Workers' Union in 1994 initially as a recruiter? 34 A. Yes, 1994. 35 36 Q. In July 1998, you were elected State Secretary of the 37 Victorian Branch of the AWU? 38 A. Yes. 39 40 Q. Then in July 2001, you were elected to dual positions 41 of State Secretary of the Victorian Branch and National 42 Secretary of the AWU? 43 A. Yes. 44 45 Q. And you ceased as State Secretary of the Victorian 46 Branch on or about 3 August 2006? 47 A. Yes.

.08/07/2015 AWU SHORTEN 2 W R SHORTEN (Mr Stoljar) Transcript produced by DTI

1 2 Q. You entered Commonwealth Parliament following the 3 Federal Election on 24 November 2007? 4 A. Yes. 5 6 Q. You ceased as National Secretary at about that time; 7 is that right? 8 A. Yes. 9 10 Q. Could I ask you, first, to go to a bundle of documents 11 that's just been marked "Miscellaneous." It will either 12 come up on the screen or we'll give you a hard copy, 13 whichever is easier for you. 14 15 MR STOLJAR: Commissioner, I would ask that this bundle be 16 received into evidence. 17 18 THE COMMISSIONER: Yes. Mr Myers, you would be very 19 familiar with this bundle. If you have any objections to 20 any part of it, you can make them at any reasonable time in 21 the near future. 22 23 MR MYERS: Thank you, sir. A large number of documents 24 have been supplied to my client and, thus, to me. We've 25 had an opportunity to look at them. If we haven't, I shall 26 intervene. 27 28 THE COMMISSIONER: Yes. Subject to those rights of yours, 29 it will be known as Shorten MFI-1. 30 31 SHORTEN MFI-1 - BUNDLE OF DOCUMENTS MARKED "MISCELLANEOUS" 32 33 MR STOLJAR: Q. Mr Shorten, could you go to page 252 of 34 that bundle. Are you looking at a document with a date 35 19 February 2007 at the top? 36 A. Yes, that's right. 37 38 Q. It takes the form of a letter but it appears in 39 substance to be an unsigned job contract between 40 Mr Lance Wilson and a company called Unibuilt. Did you see 41 this document on the date it bears, namely, on or about 42 19 February 2007? 43 A. I might just look at the whole document first. 44 45 Q. Yes, of course. 46 A. I've read the document. What was your question? 47


1 Q. Did you see the document on or about the date it 2 bears, 19 February 2007? 3 A. Not that I recall on that date, no. 4 5 Q. Did you see it at any time during 2006 or 2007? 6 A. Not that I recall, no. 7 8 Q. Do you have any memory of the document, as you sit 9 here in the witness box? 10 A. I understand what the document was doing. I don't 11 know about the particular draft that you're referring to, 12 but I understand the background to it. 13 14 Q. Well, is the background that Mr Lance Wilson worked 15 for you in your campaign for Maribyrnong? 16 A. Yes, Mr Wilson did work for me as my campaign director 17 in the time in 2007 up to the Federal election. 18 19 Q. Why don't we just go through the document in a bit 20 more detail. It is addressed to Lance Wilson and dated 21 19 February 2007. At that stage you were still the 22 National Secretary? 23 A. Yes. 24 25 Q. You'd obtained preselection for the seat of 26 Maribyrnong? 27 A. Yes. 28 29 Q. At that time, 19 February 2007, the date for the next 30 Federal election hadn't been announced? 31 A. No, I don't think it had been announced, but I would 32 have assumed that John Howard was going to have to go to 33 the polls in 2007. 34 35 Q. And you were about to start campaigning? 36 A. I was going to be campaigning, yes. 37 38 Q. It is addressed to Lance Wilson, as we've noticed. 39 He, as you indicated, was your campaign director. After 40 the election, he worked in your electorate office? 41 A. Yes, he did. 42 43 Q. He did that up until the 2010 election? 44 A. Yes, he would have. 45 46 Q. And then he worked for you as a political adviser? 47 A. He worked after the 2010 election in my ministerial


1 office, yes. 2 3 Q. Looking at the first line of the document, it says: 4 5 I'm pleased to offer you - 6 7 -- that's Lance Wilson -- 8 9 - the position of research officer with 10 Unibuilt Pty Ltd. 11 12 You're familiar with Unibuilt? 13 A. Yes, I am. 14 15 Q. It is a labour hire company? 16 A. Yes. 17 18 Q. It provided labour to persons in the construction 19 industry? 20 A. Mechanical construction, I think, but construction, 21 yes. 22 23 Q. And Ted Lockyer was a director at least of Unibuilt? 24 A. Mr Lockyer was the head of that company, I thought. 25 26 Q. You knew him pretty well back in 2007? 27 A. I did know him, yes. 28 29 Q. Were you friends with him? 30 A. I wouldn't say close social friends, but certainly 31 well acquainted and he - yes, I did know him, definitely. 32 33 Q. Were you involved in the arrangement that seems to be 34 contemplated by this document, namely, Lance Wilson 35 purportedly working for Unibuilt as a research officer? 36 A. In terms of did I know about the arrangement, 37 I certainly was able to, with Mr Lockyer, get a donation of 38 contributing a staff member, or someone that Unibuilt would 39 employ, and he was happy for that person to work on my 40 election campaign in the course of 2007. 41 42 Q. Did you have a discussion with Mr Lockyer about that? 43 A. We spoke about it, yes. 44 45 Q. When did Lance Wilson actually start working for you 46 at Maribyrnong, was it around about this time, 19 February 47 2007?


1 A. I can't be sure of the exact date, but that certainly 2 seems correct. 3 4 Q. And who paid his wages? 5 A. Unibuilt. 6 7 Q. All right. If you go back to this document at 252, it 8 says "Length of Employment": 9 10 Length of employment is from the 11 commencement date up to the next Federal 12 Election. 13 14 He would be working 38 hours a week. It was contemplated 15 back in February that he would cease his employment at the 16 time of the next Federal election? 17 A. Well, in terms of the resource which I required, 18 I needed him to work on my campaign up to the next election 19 which was, as history shows, in November of 2007. 20 21 Q. But he was going to be working full-time on your 22 campaign; is that right? 23 A. Yes. Maribyrnong was what people would call a safe 24 seat. That meant that it wasn't a marginal seat in terms 25 of the volatility, but I was a new candidate and I was 26 committed to my constituents in Maribyrnong, to make sure 27 that I took the campaign seriously, that we put the 28 resources in, that we were talking to them about their 29 issues, and Lance was part of that. 30 31 Q. Did you have a hand in the drafting of this document? 32 A. No, I didn't draft the document. 33 34 Q. Did you ask someone to send it to Unibuilt? 35 A. Perhaps if I can give you the context of Unibuilt 36 and -- 37 38 Q. Perhaps if you just answer my question first. Did you 39 ask someone to send it to Unibuilt? 40 A. No, I don't recall that. 41 42 Q. You say you've got no memory one way or the other? 43 A. No, I have got a memory of Mr Lockyer making a 44 donation of a staff member, which was great, and Mr Wilson, 45 who I had met in the course of the second half of 2006, 46 I thought, would fill the bill well. He was in Young Labor 47 and very keen, and then I introduced him to Mr Lockyer and


1 Mr Lockyer was good enough to employ him, and Lance was 2 able to work on my campaign. 3 4 THE COMMISSIONER: Q. A couple of minutes ago, 5 Mr Shorten, you spoke of the context. What you have just 6 said is the context that you had in mind, is it? 7 A. Yes. 8 9 MR STOLJAR: Q. Is this the position, just so I 10 understand it, from February 2007 through to November 2007, 11 a labour hire company was causing services to be provided 12 to you, namely, the services of Lance Wilson; is that 13 right? 14 A. Yes. Unibuilt was - and Mr Lockyer - was prepared to 15 employ someone or pay for someone's employment to work on 16 my campaign. 17 18 Q. Going back to this document, he wasn't in truth being 19 a research officer with Unibuilt, was he? 20 A. I can't speak to the terms of what he was described by 21 Unibuilt or Mr Wilson, but, no, what he was doing was he 22 was working on my campaign. 23 24 Q. So, is this the position: you agree with me that he 25 was not in truth a research officer with Unibuilt, but you 26 say you don't know how that came to be in this job 27 contract; is that fair? 28 A. I think there's two questions there, Mr Stoljar, and 29 I'll try and deal with them one at a time. 30 31 Q. Certainly. 32 A. What was the first part of your question? 33 34 Q. You agree with me that he was not in truth a research 35 officer with Unibuilt? 36 A. No, he was working on my campaign. 37 38 Q. You agree with me he was not a research officer for 39 Unibuilt? 40 A. Yes. 41 42 Q. Do you say you have no explanation that you can offer 43 as to how this contract came to describe him as such? 44 A. I cannot explain why that particular title is used. 45 He was a campaign resource, a campaign director for me. 46 47 Q. Let's go back in time and, as you say, put it into a


1 bit more context. Can I take you back to page 221 of 2 bundle. This is an EBA between Unibuilt and the AWU. As 3 you can see from page 221 - I'm sorry, you're looking at a 4 document issued by the AIRC, but you can see from this 5 document that this EBA was certified on 27 January 2005. 6 If I take you through to page 224, the title of the 7 agreement is "Unibuilt AWU Enterprise Bargaining Agreement" 8 and then come through to 3.1. Clause 3 deals with the 9 "Parties Bound", so page 225 in the bottom right-hand 10 corner. "Company" means Unibuilt. "AWU" means the 11 Australian Workers Union, and 3.2: 12 13 This Agreement applies to all of the 14 Company employees who are: 15 16 3.2.1 Employed at any sites in the 17 Commonwealth of Australia. 18 19 So it is a national agreement. In clause 4, it operates 20 until midnight on 30 November 2007. And then if you come 21 through to clause 16: 22 23 The Company and the AWU agree to commence 24 negotiations for a replacement agreement no 25 later than three (3) months prior to the 26 expiry of this Agreement. 27 28 Do you see that? 29 A. Sorry, what clause was that again, Mr Stoljar? 30 31 Q. Clause 16 on page 234 in the bottom right-hand corner. 32 A. Yes. 33 34 Q. You were going to, or the AWU and Unibuilt were going 35 to commence negotiations no later than three months prior 36 to the expiry, and three months before 30 November is 37 30 August 2007. 38 A. Yes. 39 40 Q. Were you involved in the negotiation of this 41 agreement? 42 A. No, I wasn't. I'd just like to go back. You made a 43 number of statements and I'd just like to go back and read 44 a couple of those clauses that you went through. 45 46 Q. Yes, please do. 47 A. The answer to your most recent question is, no,


1 I wasn't involved in the negotiation. 2 3 Q. Just to remind you, I think I took you to clauses 3 4 and 4 and then 16? 5 A. No, I have gone and checked that point that I wanted 6 to check, thank you. 7 8 Q. Who was involved in the negotiations? 9 A. I imagine it would have been one of my organisers, 10 but, of course, I should also state that at this time of 11 the ratification of this agreement, I was no longer 12 Victorian Secretary of the Union and from what I can see, 13 just on the very quick skim of these documents, that this 14 agreement was executed by the Victorian Branch of the 15 Union. So I'm not 100 per cent sure who would have 16 negotiated this agreement. I'd need to look at the 17 reference documents. When I was Secretary of the Union, in 18 my time, there would probably be a statutory declaration 19 which would go through with the agreement in terms of - but 20 if this agreement is the 04-07 agreement, it would have 21 been probably Cesar Melhem. By the renegotiation agreement 22 in August 2007, I don't know who would have been involved 23 in that process. 24 25 Q. Taking that in steps, Cesar Melhem signed this 26 agreement, you can see that on page 249? 27 A. Yes. 28 29 Q. But he signed it on 17 January 2005? 30 A. Yes. 31 32 Q. At that time you were the State Secretary of the 33 Victorian Branch? 34 A. Yes. 35 36 Q. But isn't this agreement the national agreement? 37 Don't we draw that from clause 3.2? 38 A. Yes. I, though, believe this negotiation would have 39 been conducted by the Victorian Branch of the Union. 40 That's why the then - that's why Mr Melhem would have 41 signed it then. I also note in the pages you've drawn me 42 to on page 223, that the AWU advocate who did the 43 appearance - as you appreciate, you have an agreement, then 44 it's put to the Industrial Relations Commission, and that 45 was also a Victorian advocate at the time. 46 47 Q. Ms Walters?


1 A. So I believe it was probably done by the Victorian 2 Branch. Also, and I'm not sure, I'm genuinely not sure, 3 but I think that Unibilt was doing a lot of its work in 4 Victoria. 5 6 Q. Page 250 are the trades covered by the agreement? 7 A. At page 250 is the classifications of the work covered 8 by this agreement, yes. 9 10 Q. Yes. Going back to February 2007, the position is 11 that negotiations were going to get underway, if there was 12 to be a renewal of this EBA between Unibuilt and the AWU, 13 certainly by August 2007? 14 A. No, I'm not quite sure that's right. Again, I didn't 15 do this negotiation in 2007 because, as I've said earlier, 16 I was no longer the Victorian Secretary. 17 18 In my general experience, though, an ideal outcome for 19 any agreement - and we are now in the era of enterprise 20 bargaining - is that an agreement would go for two or three 21 years, negotiated by Union on behalf of employees and an 22 employer. At about three months before the expiry of your 23 first EBA, you would start negotiations, maybe even a 24 little bit earlier, so that when that agreement expired, 25 ideally you'd have a replacement arrangement in place. 26 That's the most efficient for the workforce, they know 27 where they stand. It's also useful for the business to be 28 able to factor in its ongoing labour costs. But whether or 29 not the negotiation started as early as February that year, 30 I couldn't say. 31 32 Q. Because you say it would have been done by someone at 33 the Victorian Branch of the AWU; is that right? 34 A. Well, partly, yes. I have no line of sight, that's 35 perfectly correct, but in addition -- 36 37 Q. Yes. 38 A. -- just industrial practice, I'd love to say, 39 Commissioner, that everything in a Union is done years and 40 years out, that was not always the case. Ideally we would 41 have an agreement concluded before the expiry of it, but 42 unions sometimes operate well on deadlines. 43 44 Q. We are not talking about years and years out, are we, 45 Mr Shorten. We are talking about discussions that you had 46 with Mr Lockyer in February 2007 and, according to the EBA, 47 negotiations regarding its extension were to commence by


1 August 2007; correct? 2 A. Yes, that's what the EBA says, correct. 3 4 Q. Did you discuss that with Mr Lockyer when you were 5 having conversations with him about this donation you say 6 he was going to make? 7 A. Not at all. I don't believe that to be the case at 8 all. Again, I make this point, I don't seek to be 9 repetitive but I feel it should be made: the Unibuilt 10 negotiations were done by the Victorian Branch. I no 11 longer have a line of sight to the Victorian Branch 12 industrial instruments that they're entering, by and large, 13 and this is certainly one. And also with enterprise 14 bargaining, what happens is that you've got your organisers 15 who do the bargaining. If there's a problem or a 16 particular issue, then the Secretary would get involved, 17 but the proposition that everything was queued up in 18 February to conclude a negotiation not due to start until 19 August, is a little more efficient than, you know, custom 20 and practice would have had it. 21 22 Q. In any event, by early 2007, you had decided you 23 needed someone to work in your campaign office? 24 A. Yes. 25 26 Q. You discussed that with Lance Wilson, did you? 27 A. I forget when I exactly first met Lance Wilson - 28 Mr Wilson. It would have been, I think, in the latter half 29 of 2006. He was in Young Labor. That's people up to the 30 age of 26. He'd done a good job by all accounts in the 31 successful Labor campaign in Prahran. I think he was keen 32 to see what he could do to work with me. So, I met him and 33 he seemed like a good cut of a fellow, young and new, but, 34 you know, enthusiastic and we've all got to get a start 35 somewhere. 36 37 Q. He was working for Tony Lupton at that time, was he? 38 A. Yes. But when I say "yes", I believe so. Yes, 39 I don't exactly know that, but I'm pretty sure that's the 40 case, to my memory. 41 42 Q. Lance Wilson agreed to work for you. Did you tell him 43 that the company was going to be paying his wages? 44 A. I think when I first spoke to Lance and, you know, 45 I wanted to meet him, I'd heard positive things about his 46 level of enthusiasm -- 47


1 Q. Did you talk about it with Liam O'Brien? 2 A. I could well have, yes. Liam, I think, was a friend 3 of Lance. I was on the lookout for good people. I would 4 have said to Lance, to the effect of - and I don't recall 5 my exact words, this was 10 years ago, but, you know, 6 "Perhaps if it works out between us, you come and work for 7 me on my campaign. I need a campaign director. I'm very 8 serious about making sure we present the best case to the 9 voters of Maribyrnong", and I'd have said I'll try and 10 organise some form of employment for him. 11 12 Q. And did you tell him that a company was going to be 13 paying his wages? 14 A. Maybe not initially. I had to see if he was the right 15 person and if he was interested, and I would have had to 16 have a think about where can I find the resources. 17 Mr Lockyer was good enough to offer the opportunity. Then, 18 to the best of my recollection, I would have taken 19 Mr Wilson to meet with Mr Lockyer. 20 21 Q. Where did that meeting take place? 22 A. I think in Errol Street. The Union offices are in 23 North Melbourne. There's some reasonable bakeries there. 24 25 Q. When did you last speak to Mr Wilson, by the way? 26 A. This year. 27 28 Q. This year? 29 A. When I say "this year", I ran into him in a shopping 30 centre. We both live in the western suburbs of Melbourne. 31 32 Q. When was this? 33 A. I don't exactly remember. I was shopping on the 34 Saturday. 35 36 Q. All right. So you had a meeting in Errol Street. Was 37 it at the Errol Street Bakery Cafe? 38 A. It could well have been, yes. 39 40 Q. Who was present at the meeting? 41 A. Mr Wilson, Mr Lockyer and myself. 42 43 Q. And doing the best you can, what was said at the 44 meeting? 45 A. Mr Lockyer was willing to donate a resource, employ a 46 person. I think it's right that he was to meet who I was 47 recommending. It was a pretty brief meeting, to the best


1 of my recollection, but Lance would meet Mr Lockyer. He 2 knew that Mr Lockyer was going to support us up to the 3 election and that he would employ Lance, and I can't really 4 recall more than that. 5 6 Q. So you recollect a discussion about Mr Lockyer making 7 a donation, do you? 8 A. I recollect Mr Lockyer was willing to employ someone 9 and I was introducing the person, which I was seeking to be 10 employed, to Mr Lockyer. 11 12 Q. So the arrangement was going to be he's employed 13 nominally, or he's employed in the sense that Unibilt would 14 pay his wages but he would be working for you as your 15 campaign director? 16 A. Yes. 17 18 Q. All right. Did you wish to have this arrangement 19 formalised in some way? 20 A. I don't know if I wished to have it formalised in a 21 particular way but it's logical, when you employ someone, 22 there should be some contract. You have to sort out your 23 pay slip or your payment details and bank accounts. 24 25 Q. Did you ask someone to prepare a contract? 26 A. I don't recall me asking someone to prepare a 27 contract. 28 29 Q. Well, do you know how this contract came to be 30 prepared? 31 A. This - sorry? 32 33 Q. The one at page 252. 34 A. I imagine that someone has drafted this up for Lance 35 and for Unibuilt in the Union. I've seen a further email 36 in the documents that you've sent me which indicates it 37 might have been Michael Chen, the financial controller of 38 the Union. 39 40 Q. Why would he do that? 41 A. Because he's the financial controller of the Union and 42 he would have been involved. 43 44 Q. What's that got to do with it? 45 A. Well, clearly, the Union is supportive of my campaign 46 for Parliament. It has been, and remains to be so now. 47


1 Q. Well, Michael Chen just doesn't do it out of the blue, 2 does he? Did you instruct him to prepare a contract? 3 A. I could well have asked Michael Chen to prepare a 4 contract. 5 6 Q. Well, could well have, can you say whether you did or 7 you didn't? 8 A. I can't absolutely say I did, but I'm sure it's 9 entirely possible, yes. 10 11 Q. Did you tell him what to put in the contract? 12 A. I do recall discussing with Lance Wilson a pro rata 13 figure of $50,000 per year. 14 15 Q. When did you have that discussion? 16 A. I imagine before Mr Wilson started working for me. 17 I don't imagine. Before Mr Wilson started working for me. 18 19 Q. Did you tell Michael Chen to put that in the contract? 20 A. I honestly don't know if Lance Wilson was liaising 21 with him or if it was me, but certainly that would have 22 been the message conveyed. 23 24 Q. Did you tell him to specify the commencement date of 25 19 February 2007? 26 A. I can't recall which date I would have specified. 27 28 Q. Did you tell him to specify the length of employment 29 so that he'd be employed up until the Federal election? 30 A. Yes, I would have probably. I don't know exactly what 31 I said, but it was clearly for the duration up to the 32 election. 33 34 Q. Did you tell him to describe the position as research 35 officer with Unibuilt? 36 A. No, I'm not sure that I would have said that. He was 37 a campaign resource, and that's how I would have described 38 it. 39 40 Q. Well, how did this come to be included in the 41 contract, then, if not from you? 42 A. Well, I don't know that. 43 44 Q. Was someone else from the Union giving Michael Chen 45 instructions on how to draft this contract? 46 A. I don't know. 47


1 Q. It was your campaign and he's being employed as your 2 campaign director, it is likely that you were giving 3 Michael Chen the instructions, isn't it? 4 A. Well, first of all, what I was seeking was support 5 from Mr Lockyer. He'd agreed, he made this offer to employ 6 someone to work on my campaign. Then what would have 7 happened is that Lance and perhaps the Union - and the 8 Union would have put a draft contract to Mr Lockyer. 9 I can't speak to every term which got written in there, but 10 it was certainly a campaign support for me to employ 11 someone to work on my election. 12 13 Q. Well, my question was it is likely you gave 14 Michael Chen the instructions to prepare this contract; do 15 you agree with that? 16 A. Yes, I could well have asked him to prepare a 17 contract, but going to the specific terms of the contract, 18 I didn't supervise every clause and every document, no. 19 20 Q. It is not every clause in every document. It is the 21 opening line and it is describing his position, 22 "Research Officer with Unibuilt"? 23 A. Yes, but I still don't draft all of the contract 24 documents that you're referring to. 25 26 Q. Well, what I am putting to you is that it is likely 27 that you gave Mr Chen the instructions to include, in the 28 first line of this contract, that Lance Wilson would be 29 taking a position of research officer with Unibuilt. Do 30 you agree? 31 A. No. What I would have asked is that, "Could you 32 please help draw up a contract for someone who is going to 33 come and work on my campaign for Unibuilt." 34 35 Q. Did you then tell Michael Chen or ask Michael Chen to 36 send this document to Ted Lockyer? 37 A. I don't have a line of sight in terms of who was 38 sending what, where. What I would have asked is having met 39 with Lance Wilson, thought he was good for the job of 40 campaign director, having got the support of Mr Lockyer to 41 pay for the position, certainly I would well - could well 42 have asked the Union to draw up a pro forma contract to 43 help regularise the arrangements, but in terms of the 44 specifics which go into each of these sections, it's not me 45 drafting each section. 46 47 Q. When you say "regularise the arrangements", there is


1 nothing regular about it, is there, he's not a research 2 officer at all? 3 A. Oh, no, I see your point there, he's a campaign 4 director, but in terms of this contract, there is a 5 commencement date, that is the regular feature. A link of 6 employment, that is a regular feature which I wouldn't 7 necessarily then finalise. Hours of work, mobile phones, 8 these are the policies of the Union. 9 10 Q. I'm not sure I got an answer to my question a moment 11 ago. 12 A. Sorry. 13 14 Q. Did you tell Michael Chen or ask Michael Chen to send 15 this document to Ted Lockyer? What's your answer to that? 16 A. I would have asked Michael Chen could he please 17 provide a draft document, "Mr Lockyer from Unibuilt is 18 going to employ someone who is going to work on my 19 campaign", but beyond that, I have to say, I don't 20 micromanage every detail of every administrative 21 arrangement. 22 23 Q. Could you come to page 255. This is an email from 24 Lance Wilson to Ted Lockyer. Was a copy of this email sent 25 to you at some stage at that time, around about 26 February 26 2007? 27 A. Not that I recall, no. 28 29 Q. Let's go through it. It says, "Subject: Contract." 30 He's attached his CV, and he says: 31 32 Hi Ted, I was just wondering whether 33 Michael at the AWU had sent you the draft 34 contract he prepared? 35 36 He attaches a copy of his CV, and he signs off "Office of 37 Bill Shorten." Does that mean he was already working for 38 you at this stage? 39 A. I'm not sure if he was working for me that week or 40 not. "Office of Bill Shorten" doesn't exist at that point. 41 If there was an office of Bill Shorten, he was it. 42 43 Q. He's the one who found the office at Moonee Ponds, 44 isn't he? 45 A. It could be, or it could be someone else, I don't 46 know. From a real estate agent, I don't know. 47


1 Q. Who else worked in your campaign office, by the way? 2 A. Do you mean paid or unpaid? 3 4 Q. Paid. 5 A. Paid: I had the support in the course of the year of 6 another staff member, part-time. 7 8 Q. Who was that? 9 A. Well, she's asked me not necessarily to reveal her 10 name in this Royal Commission but I'm happy to write it 11 down for you, if that's an issue. 12 13 Q. Well -- 14 A. Not everyone wants to be mentioned in this 15 Royal Commission, but I'm happy to write it down. There's 16 nothing untoward. 17 18 THE COMMISSIONER: Are you content with that, Mr Stoljar? 19 20 MR STOLJAR: Q. All right, yes. 21 A. Thank you. 22 23 Q. I will look at the name first and then I'll see. 24 A. Okay. Thanks. 25 26 MR STOLJAR: I don't want to intrude on anyone's 27 sensitivities, Commissioner, but I don't see that this is 28 an issue of commercial-in-confidence, or anything of the 29 like. We were just talking about who was working in a 30 campaign office. 31 32 THE COMMISSIONER: It is desirable to be sympathetic to 33 what Mr Shorten has just said. I can see the relevance of 34 trying to work out who the paid members of the team were 35 and perhaps what they did, but does the precise identity 36 matter? 37 38 MR STOLJAR: Well, perhaps not for now. 39 40 THE COMMISSIONER: I mean, any order of course would be, 41 as it were, an interlocutory order only, interim order 42 only. If the precise identity became important, it could 43 be revealed later. Mr Myers, have you got anything to say? 44 45 MR MYERS: I suggest that one hears the evidence without 46 disclosing the name and then if my friend wants to make an 47 application, then he could do so.


1 2 THE COMMISSIONER: Yes. 3 4 MR MYERS: If the name is kept confidential for the 5 present. 6 7 THE COMMISSIONER: I will describe as Shorten MFI-2 8 (Confidential), the piece of paper that Mr Shorten has just 9 written on. 10 11 SHORTEN MFI-2 (CONFIDENTIAL) - PIECE OF PAPER WITH NAME 12 WRITTEN BY MR SHORTEN 13 14 MR STOLJAR: Q. I have written "Shorten MFI-2" and the 15 word "Confidential" in parentheses on the top of the 16 document and I'll provide it to the Commission for its 17 records. I think I can remember the name. 18 19 THE COMMISSIONER: If you are intending to refer to the 20 name, or to the person, you better do so in some generic 21 type of way. 22 23 MR STOLJAR: I will, Commissioner. 24 25 Q. Mr Shorten, this may draw more attention to this issue 26 than it merits, but -- 27 A. I'm sorry about that. It was just that the person 28 asked me, and obviously there's no great secret. 29 I wouldn't want anyone to think untoward, but sometimes 30 being mentioned in the Commission, even in passing, can 31 embarrass people, even when they're perfectly innocent. 32 33 Q. I will merely refer to this person as the mystery 34 person for now. You had a mystery person working in your 35 office? 36 A. Actually, I won't prolong it but even, I think, to 37 call this person a mystery, they just don't want to be, 38 you know -- 39 40 Q. What pseudonym would you like me to use, Mr Shorten? 41 A. The second campaign worker. 42 43 Q. Okay. We had an unidentified second campaign worker 44 working in the office. How many days a week was that 45 person working? 46 A. I think somewhere between two and three. 47


1 Q. And who paid that person's wages? 2 A. I think the Union. 3 4 Q. Well, what do you mean you think? 5 A. The Union. 6 7 Q. When you say "the Union", what does that mean, 8 National, State? 9 A. The Australian Workers' Union National Office. 10 11 Q. So you were still the National Secretary at this time? 12 A. Yes. 13 14 Q. So we've got the second campaign worker and was there 15 anyone else? 16 A. In a paid capacity, no. 17 18 Q. Did you have the services of any employees of the 19 Union? 20 A. From time to time, when I had to do letterbox drops, 21 or on the weekends or - you know, I think that's probably 22 the best example, Commissioner, you've got to put leaflets 23 out in letterboxes, postage is expensive, so we'd get a - 24 I've got no doubt that officials would come and help me on 25 their own time, but in terms of paid resource, you know, 26 working the nine to five and following up all the necessary 27 paperwork that an energetic campaign generates, it was one 28 full-time resource and one part-time resource. 29 30 Q. All right. What about Rob Acton, was he working on 31 the campaign? 32 A. Mr Acton worked for me at the Union. No doubt, from 33 time to time, he helped me on the election campaign as 34 well. 35 36 Q. Can I show you an email. 37 38 MR STOLJAR: Commissioner, this is not in evidence. Could 39 I ask that this email be received into evidence. It is 40 dated Monday, 19 February 2007. 41 42 THE COMMISSIONER: It will be known as Shorten MFI-3. 43 44 SHORTEN MFI-3 - EMAIL FROM MICHAEL CHEN TO TED LOCKYER 45 DATED 19/02/2007 46 47 MR STOLJAR: Q. This is an email from Michael Chen to


1 Ted Lockyer and he says: 2 3 Hi Ted, 4 5 Bill asked me to email you this letter of 6 offer. 7 8 The letter of offer being the document that we have been 9 looking at at page 252 of the bundle. Does that refresh 10 your memory, that you did in fact ask Michael Chen to send 11 the draft contract to Mr Lockyer? 12 A. Certainly it doesn't surprise me at all that 13 Michael Chen would have forwarded on a draft. So this is 14 not a surprise at all, I agree. 15 16 Q. That really wasn't my question, Mr Shorten. 17 A. Oh, I'm sorry. 18 19 Q. Does this refresh your memory that you asked 20 Michael Chen to email Mr Lockyer the letter of offer? 21 A. I am sure that I asked Mr Chen, it does help me 22 refresh my memory, to prepare a document to send to 23 Mr Lockyer, yes. 24 25 Q. You had a look at the document after it had been 26 prepared, didn't you? 27 A. I don't remember. 28 29 Q. And you noticed that it described the position as 30 "research officer", didn't you? 31 A. Well, if I didn't remember seeing the draft, 32 I wouldn't remember that particular clause in the draft 33 either. 34 35 Q. Isn't this the position, that the purported contract 36 falsely states that Lance Wilson is a research officer with 37 Unibuilt when in fact he was your campaign director? 38 A. Mr Lockyer understood that he was being asked to 39 employ a campaign resource to employ someone on my 40 campaign. In fact, that's why I took Mr Wilson to meet 41 with Mr Lockyer so people understood exactly not only what 42 was being proposed, but who was being proposed to be 43 employed. In terms of the draft document which you're 44 talking about now, I don't oversight and draft each word in 45 the document. I certainly would have asked the Union to 46 send a document, send a contract, so that the employment 47 could be regularised. The term "research officer" is not


1 correct, you know, I agree with that point. He was a 2 campaign resource. Mr Lockyer, the Union and Mr Wilson all 3 knew that, as did I. 4 5 Q. It is not just a question of terminology, is it? He 6 wasn't working for Unibuilt at all? 7 A. He was employed by Unibuilt and donated to work on my 8 campaign. 9 10 Q. He had nothing to do with Unibilt, did he? Other than 11 his meeting with Mr Lockyer that you attended, he simply 12 worked on your campaign and his wages were paid for by 13 Unibuilt? 14 A. It was a donation by Unibuilt of a person to work on 15 my campaign, that's correct. 16 17 Q. When do you say you had this conversation with 18 Mr Lockyer about a donation? 19 A. I don't remember precisely when. I imagine in the 20 last part of 2006 or the beginning of 2007. 21 22 Q. Was anyone else present? 23 A. Not that I recall, but there could have been. 24 25 Q. Where was the conversation? 26 A. I imagine it was at the - when I say "imagine", to the 27 extent that I can recall, it would have been in the Union 28 office. I didn't tend to meet Mr Lockyer in many other 29 places. 30 31 Q. How often were you meeting Mr Lockyer at this time? 32 A. Not that often but he was dealing - he would have been 33 in the Union office occasionally, so I would have seen him. 34 35 Q. You were about to say he was dealing with EBA 36 negotiations? 37 A. No, what I was about to say is that he has been 38 dealing with the Union for a long time. He'd been dealing 39 with my predecessors, and with a range of officials and 40 myself over quite a few years. 41 42 Q. He came to your office to do that, did he? 43 A. Sometimes, yes. 44 45 Q. He came to your office one day and how did this 46 discussion about a donation come up? 47 A. I could have been talking to him. I would have been


1 talking to him and I would have asked -- 2 3 Q. Well, not "would have", can you remember? 4 A. I can't remember exactly, but I can say to you that 5 I would have said, "Ted, would you be willing to employ 6 someone to support my campaign for Parliament?" 7 8 Q. So you asked him that, and what did he say? 9 A. "Yes". 10 11 Q. Did you talk about how much this donation might be? 12 A. As I was - as I would have been asking him to employ 13 someone, it would have been in the vicinity of whatever 14 Lance was getting paid, which is pro rata $50,000. I find 15 in my experience in terms of donations, either you have to 16 ask or someone has to offer, and that's what happened here. 17 It's -- 18 19 Q. Why did Unibuilt cease to make payments to pay for 20 Mr Wilson's wages in due course? 21 A. Because the election was held. 22 23 Q. No, they ceased before that time; why was that? 24 A. I think Unibuilt either directly, or through invoices 25 to the AWU for Mr Wilson, were paying up to the election. 26 Unibuilt generously made a donation which allowed me to 27 employ a campaign director, and that arrangement ceased 28 when the Federal election was conducted. 29 30 Q. Had he come to your office to discuss the EBA when you 31 had this discussion? 32 A. Well, I don't know. I don't think so, but I don't 33 know. I wasn't - and just to be clear on that point 34 because, you know, I respect you've asked me a couple of 35 times about this, I'm not involved in 2007 in negotiating 36 Victorian Branch EBAs, full stop. 37 38 Q. Wasn't this an EBA with national coverage? 39 A. I have to say, to the best of my recollection, 40 Unibuilt was working when it had contracts in Victoria. 41 It's only a memory, it's not precise because, as you 42 appreciate, it's a long time ago, but they had a contract 43 at the Shell Corio Refinery prior to this, but this would 44 have been dealt with by my Victorian officials, the EBA. 45 46 Q. But my question was: wasn't this an EBA with national 47 coverage?


1 A. Technically, yes -- 2 3 Q. Technically? 4 A. -- but in the real world, I don't know what contracts 5 Unibuilt had outside of Victoria. 6 7 Q. What's the process by which an EBA with national 8 coverage gets signed off? Doesn't it have to go through 9 National Office? 10 A. No, not always. If a company has its principal 11 operations in one State, then it is quite feasible and 12 quite practical that that State Branch leads those 13 discussions and conducts those discussions. Now, I can't 14 recall if Unibilt had a lot of work outside of the State of 15 Victoria. I do recall that Mr Melhem and others were 16 negotiating with Unibuilt historically throughout the time 17 I was Victorian Secretary and after I ceased to be 18 Victorian Secretary. 19 20 Q. Unibuilt is paying the wages of Lance Wilson and he's 21 working for you. We are moving into early 2007. Did 22 Unibuilt ask for any favours in return? 23 A. From me, for the donation? 24 25 Q. Yes. 26 A. No. 27 28 Q. To your knowledge, did Mr Lockyer expect favours in 29 return? 30 A. No, I don't know. Not to my knowledge at all. 31 32 Q. It is important for a labour hire company to have the 33 support of the Union; correct? 34 A. It can be, yes. 35 36 Q. What do you mean it can be? It is, isn't it? 37 A. Well, just to explain a bit of the context of labour 38 hire, labour hire is a category of employment which has 39 really increased a lot in the 1990s and 2000s. So, labour 40 hire works in different industries. You've got 41 construction labour hire, you might have legal labour hire; 42 you might have labour hire in a whole range of industries, 43 call centres. In terms of whether or not a labour hire 44 company wants to have a Union agreement, it depends if 45 they're taking these labour hire workers into work sites 46 which are unionised. 47


1 Now, a lot of labour hire doesn't need to have a Union 2 agreement, which was your question, because, quite frankly, 3 a lot of workplaces are not unionised. 4 5 In terms of Unibuilt, it was a labour hire company 6 which was working in the construction sector and they would 7 do shutdown work; again, if it's okay to explain what 8 I mean by that. The AWU was the principal and active Union 9 in quite a few heavy industries: petroleum, hydrocarbons, 10 steel, aluminium, and the like. Periodically, these 11 companies would need to have a major overhaul of their 12 plant, this would be a shutdown. It was very important 13 that they labour hire companies that could bring in skilled 14 workers to do the repair work but finish on time. So, to 15 that extent, a labour hire company in heavy industry, in 16 construction, would probably have industrial arrangements 17 with a range of unions, including the AWU. 18 19 Q. All right. Are you agreeing with me that it is 20 important for a labour hire company, or at least one such 21 as Unibuilt, to have the support of the Union, namely, the 22 AWU? 23 A. Yes, for the reasons that I've outlined and that's 24 why, for instance, whilst I didn't negotiate the Unibuilt 25 agreement, the trades rate in this agreement which you've 26 drawn my attention to, the Award rate is $15.21, but the 27 rate in the enterprise agreement was $31.25. The casual 28 rate for the trades was $19.01, but we were getting casual 29 mechanics paid $39 and, broadly, there was in this 30 agreement a 12 per cent pay rise for two and a half years 31 and the superannuation was above 9 per cent and it was a 32 35-hour week. 33 34 Now, I'm sure that - well, I'm not sure but I imagine 35 Unibuilt probably had industrial arrangements with other 36 unions as well, and I'd submit that arrangement is pretty 37 good for the workers working underneath it. 38 39 Q. It may well be, Mr Shorten, but, really, the question 40 is what is the National Secretary of the Union doing in 41 discussions which may or may not have involved renewal of 42 an EBA, discussing a donation to that head of the Union's 43 campaign? 44 A. Oh -- 45 46 Q. Let me put this to you: isn't that a situation in 47 which you are using your position as National Secretary to


1 gain an advantage for yourself, namely, a full-time 2 campaign worker? 3 A. Absolutely not. 4 5 Q. Well -- 6 A. Absolutely not. 7 8 Q. You were using the industrial muscle of the Union -- 9 A. Sorry, if you don't mind, you've made a pretty 10 significant statement and I wouldn't mind having the 11 courtesy to finish that because I completely disagree with 12 what you've just said then. What I've done in previous 13 answers I've explained to you that the previous EBA was a 14 good EBA. These are good industrial conditions. They're 15 excellent industrial conditions. You say that there's 16 further negotiations to happen, I say of course there are, 17 but the idea that somehow having a discussion with an 18 employer on two different topics, even if not at the same 19 time, and somehow that it is untoward to raise money for 20 election campaigns and do anything else, to me what that 21 does is that assumes that whenever there is a donation in 22 our electoral system, by anyone, that all other 23 relationships and transactions must immediately be cast 24 into doubt. That is not right, and that is not how 25 I operated at the Union. 26 27 Q. Could you go to page 259. 28 29 MR STOLJAR: Commissioner, this identifies the names of 30 certain persons who were recipients of an email from a 31 Ms Woodham-Earsman. There is a name appearing nine lines 32 from the bottom of the main paragraph, which is the name 33 set out in what has been marked as Shorten MFI-2 34 (Confidential), and I would ask that for the time being at 35 least -- 36 37 THE WITNESS: Yes, I see what you mean. 38 39 MR STOLJAR: -- that that name be suppressed, but 40 otherwise I think there's no difficulty with this document. 41 42 THE COMMISSIONER: Yes. I direct that the name to which 43 Mr Stoljar refers not be published until further direction. 44 45 MR STOLJAR: Just so that persons looking at this document 46 can identify it, it is -- 47


1 THE COMMISSIONER: The first full name in the last line of 2 addressees. 3 4 MR STOLJAR: In the ninth-last line, did you say, 5 Commissioner? 6 7 THE COMMISSIONER: In the ninth line. 8 9 MR STOLJAR: Yes, the first full name. 10 11 THE WITNESS: Mr Stoljar, I might just say I do appreciate 12 your efforts. I know what I asked you before might be 13 frustrating but I appreciate your efforts, thank you. 14 15 MR STOLJAR: Q. Just looking at that document, 16 Mr Shorten, your name appears two lines above the line 17 we've just been looking at, and then we have the name 18 Kath Sullivan. Was she working on the Maribyrnong 19 campaign? 20 A. She was someone who worked for me at the Union and 21 from time to time she would assist me on the campaign, yes. 22 23 Q. What was her position? When you say "the Union", 24 National or State? 25 A. National. 26 27 Q. What was her position at the National Union? 28 A. She would help me with my media. 29 30 Q. She worked from time to time on the campaign, did she, 31 the Maribyrnong campaign? 32 A. Well, to explain her role, in 2007, the AWU was on 33 full campaign mode across Australia. We wanted to defeat 34 John Howard and get rid of his WorkChoice laws, so everyone 35 was working on the campaign for that: AWU, ACTU, the ALP, 36 but Kath also, from time to time, would work on my election 37 campaign. 38 39 Q. Then we have, two lines down, the person we were 40 identifying as the second campaign officer, and then we 41 have on the next line down "Lance Wilson". Then we have, a 42 couple of lines down to the right, "Rob Acton". So, three 43 of these people that I've just identified were employees of 44 either the State or National Branch of the Union and one 45 was, it would appear, an employee at this time, anyway, of 46 Unibuilt; is that right - I'm sorry, no, his wages are 47 being paid by Unibuilt; is that right?


1 A. There's a fair bit in that question - there's a little 2 bit in that question. Might I just go to this email which 3 you are taking me to? 4 5 Q. Yes. 6 A. I think this is an email which was sent out to lots of 7 campaigns and contacts on Campaign Team contacts. So to 8 that extent, yes, these people were working on my campaign 9 but it was Mr Wilson who was the full-time campaign 10 resource. 11 12 Q. Could you come through, please, to page 261. 13 A. Yes. 14 15 Q. This is a letter from Unibuilt to Mr Melhem of 16 16 May 2007. It contemplates a change in the arrangements 17 at about that time. In a nutshell, what seems to have 18 happened - just take a moment to read through the letter. 19 A. Yes, I have read the letter, thank you. 20 21 Q. The letter seems to be contemplating that Mr Wilson 22 has become, or would become, an employee of the Union but 23 would be contracted to Unibuilt, and Unibuilt would start 24 issuing invoices to - I'm sorry, the AWU would start 25 issuing invoices to Unibuilt. Was that your understanding 26 of the arrangement? 27 A. I didn't see this letter until the Royal Commission 28 kindly has provided me with these details. I understand, 29 and I understood, that Unibuilt would be paying for 30 Lance Wilson's employment in my campaign. 31 32 Q. You said earlier, in answer to one of my questions, 33 that at some point he started to be paid or started to work 34 for the Union. What was your understanding at the time? 35 Why did that occur? 36 A. I don't know why it occurred. In terms of it, though, 37 my interest was that I had a campaign person working 38 full-time. Unibuilt was good enough to provide the funding 39 for that position. At some point he has been transferred 40 in employment from Unibuilt to the Union, and Unibuilt is 41 paying the Union and would pay his wages. For me it was 42 about a campaign resource which was good. 43 44 Q. Who did you discuss this change with at the time? 45 A. I don't recall that detail. In particular, I couldn't 46 tell you why Mr Lockyer is writing to Ted in those terms, 47 but, for me, it was the same consequence, that a campaign


1 resource is coming to the Union, to me. 2 3 Q. Mr Shorten, he is your campaign director. It would 4 appear that the arrangement is being, in terms of legal 5 structure at least, changed quite dramatically. Are you 6 saying that wasn't discussed with you? 7 A. I could well have been aware that it was the Union 8 who'd be paying Mr Wilson directly, but I was always 9 conscious that it was Unibuilt who was supporting the 10 position. 11 12 Q. How did you become aware of that fact? 13 A. I can't recall. I have to say, some of these 14 details -- 15 16 Q. When you say you can't recall -- 17 A. I'm explaining. I can't recall when the transfer 18 happened. I've seen these details now, but in terms of the 19 substance of the arrangement, Unibuilt is donating a 20 campaign director, or employing someone who is a campaign 21 director, for me. That's the nub of the transaction. 22 23 Q. Well, not anymore, it appears. Now it seems as if 24 Lance Wilson is employed by the AWU? 25 A. Yes, but I think Unibuilt is still paying for his 26 wages through the Union. 27 28 Q. Are you saying that the arrangement didn't change in 29 practice or in practical terms; from your point of view, he 30 simply remained your campaign director? 31 A. Yes. 32 33 Q. Is that right? 34 A. Yes, he was my campaign director throughout. 35 36 Q. Do you say that in practical terms to an outsider 37 nothing changed, he just simply remained your campaign 38 director? His job didn't change in any way? 39 A. His job was to be campaign director and work on my 40 campaign, and that's what he did from February to the 41 election. 42 43 Q. Did his job change before and after 16 May 2007, in 44 terms of what he was doing on a day-by-day basis? 45 A. No. 46 47 Q. So why make the change?


1 A. Well, I can't tell you that. You'd have to ask the 2 Victorian Branch and Unibuilt. 3 4 Q. Did you talk about it with Rob Acton? 5 A. Not that I recall. I could have. I just simply don't 6 remember back then about that. 7 8 Q. Did you discuss it with Cesar Melhem? 9 A. Not that I can recall, but, on the other hand, I 10 wouldn't have seen anything untoward if Unibuilt wanted to 11 directly have Mr Wilson as their employee or if they wanted 12 to deliver the same outcome and have him employed by the 13 Union. The point about it is he was my campaign director 14 and he was working between February and November on my 15 campaign. 16 17 Q. Well, quite. So why are documents being prepared 18 which suggest that he is an employee of the AWU who has 19 been contracted to Unibuilt? 20 A. Well, again, you'd have to ask the Victorian AWU why 21 that was so. 22 23 Q. Who would I ask at the Victorian AWU, Cesar Melhem, is 24 that what you're saying? 25 A. I imagine so. 26 27 Q. The handwriting in the bottom right-hand corner on 28 page 261 seems to say "Other Income: Michael". Whose 29 handwriting is that? Do you recognise it? 30 A. No, I don't recognise it. 31 32 Q. The name at the top of this letter is "Unibilt", with 33 no "u", that is to say Uni B-I-L-T, do you see that? 34 A. Yes. 35 36 Q. Were you aware that there were two companies, one 37 called Unibilt - B-I-L-T - and one called "built" - 38 B-U-I-L-T? 39 A. No, I wasn't actually. 40 41 Q. That never came up in your discussions with 42 Mr Lockyer? 43 A. No. I didn't know Mr Lockyer's corporate structures. 44 45 Q. Unibuilt, with a "u", went into liquidation a few 46 years later, 2010, were you aware of that? 47 A. No. I've only found that out since in preparation for


1 this matter. 2 3 Q. The liquidator said it was trading while insolvent 4 from at least 30 June 2008. Are you able to shed any light 5 on why - I take it from your answers you're not, but are 6 you able to shed any light on why the job contract was with 7 Unibuilt, with a "u", and this letter is Unibilt, with an 8 "i"? 9 A. No, I can't shed any light at all. And to be 10 straight, I don't even recall seeing this letter. So, it's 11 highly unlikely that I would have noticed the omission of 12 the vowel "u" in the second - after the "b" in "built". 13 14 Q. You say that, but it is a significant issue, isn't it, 15 because it means it is a completely different company? 16 A. It would be if I'd seen the letter. 17 18 Q. All right. But -- 19 A. If I haven't seen the letter, then how on earth can 20 I know of that matter? And listen, Mr Lockyer, you know, 21 I'd met him through colleagues in the Union, a bit of a 22 larger than life figure, but I wouldn't think anything 23 wrong if he was to support us in the election. I don't 24 know about the rest of this - a lot of the material you've 25 been saying to me about liquidation and subsequent matters, 26 they're well after my time in the Union. 27 28 Q. But did you know that Unibilt, at least with an "i" 29 rather than a "u", was negotiating an EBA or attempting to 30 in May 2007? 31 A. Just to be clear there, is this the "Unibuilt" with 32 the "u" or without the "i" was doing the agreement? 33 34 Q. In this case it seems to be without the "u" for some 35 reason. 36 A. Mmm. No, I -- 37 38 Q. Were you aware of that? 39 A. No. 40 41 Q. Did you know that one of Ted Lockyer's companies was 42 negotiating an EBA with the Union - with the AWU - in 43 May 2007? 44 A. It wouldn't surprise me, but I wasn't directly 45 involved in those negotiations. 46 47 Q. Did it cause you any concern that a company


1 negotiating an EBA, a labour hire company, was supporting 2 your campaign by paying the wages of your campaign 3 director? 4 A. On this issue of companies supporting my campaign or, 5 indeed, anyone's campaign, Liberal or Labor, it doesn't 6 cause me concern if companies make political donations. 7 I'm sure that there's - well, I don't know but I can 8 imagine that there are plenty of corporations in Australia 9 who donate to the Liberal Party and to the Labor Party. 10 That doesn't cause me concern per se. 11 12 Q. You heard the evidence of Mr Davis, or you possibly 13 did, the other day in this Commission, the current 14 Secretary of the Victorian Branch, and he said that 15 receiving membership dues from employers profoundly weakens 16 the bargaining position of the Union. Did you hear that 17 evidence? 18 A. I did. 19 20 Q. Doesn't that apply with far greater force to receiving 21 donations from employers who are negotiating EBAs right at 22 the time that - or at the one time receiving donations for 23 your political campaign and at the same time the Union is 24 negotiating an EBA? 25 A. Mr Stoljar, there's a fair bit in that question. In 26 fact, there's two parts I want to address. Whether or not 27 now is the time to go to Mr Davis's evidence, you know, 28 I don't know if that's -- 29 30 THE COMMISSIONER: Q. If you find the question too 31 complex and I can understand why you might -- 32 A. No, no, I just find it a big question; it's not too 33 complex, sir. 34 35 Q. If you want to split it up into parts, or get 36 Mr Stoljar to split it up into parts, by all means do so. 37 A. Well, I'm just trying to work out - are you asking me 38 about Mr Davis's evidence and do I agree with his 39 characterisation of arrangements in my time, or are you 40 asking me about the role of corporate donations in our 41 electoral system and I do think that's ethical or not -- 42 43 MR STOLJAR: Q. Well -- 44 A. -- when you have other dealings with the people making 45 the donations. 46 47 Q. Perhaps I'll just put the question this way and let's


1 not get sidetracked into what Mr Davis may or may not have 2 said. Do you agree with this proposition: it would 3 profoundly weaken the bargaining position of the AWU if in 4 negotiating with a company about an EBA, that company is at 5 the same time making a donation to the then National 6 Secretary's political campaign? Do you agree with that? 7 A. No, I don't. First of all, I don't because when you 8 look at the quality of the agreements negotiated - and I've 9 mentioned the 2005 agreement, I imagine we could look at 10 the subsequent Unibuilt agreements too, but if we have a 11 look at some of those rates, the people who have been 12 working under these EBAs would have been getting between 13 $70,000-$75,000, perhaps more. There would have been - 14 there was a casual loading of 25 per cent, which was good, 15 you don't always get that casual loading of 25 per cent. 16 17 When you have a look, the superannuation was high, a 18 35-hour week. The annual leave loading that we'd already 19 got - well, when I say "we", the Union had already got - 20 was 22.5 per cent and there's not a lot of Australians who 21 get that and, as I've said, the rates are twice the Award. 22 Now, I don't think there's any evidence that this is a bad 23 agreement, but then we go to the second point. 24 25 Is it appropriate to have any donation, be it to me, 26 the Labor Party or the Liberal Party, if that party is in 27 government or in a position of authority doing any other 28 transactions? Now, I think it is a cornerstone of our 29 electoral system that you raise electoral funds for 30 elections, but that doesn't mean that, therefore, the 31 implication can be made that the recipients are incapable 32 of transacting their interests and their duties towards 33 people any differently. 34 35 Q. Could you come, please, to page 286. You should be 36 looking at Tax Invoice 018428. That's an invoice issued by 37 the AWU Victorian Branch to Unibuilt. It says "The work 38 was completed by Lance Wilson in May 2007", 91.2 hours. 39 The suggestion implicit in this invoice is that Mr Wilson 40 has carried out 91.2 hours work for the AWU for which the 41 AWU is seeking recompense from Unibuilt; correct? 42 A. I'll just read the invoice carefully. 43 44 Q. Yes. 45 A. Your question was? I've just read the invoice. 46 47 Q. The invoice is suggesting, is it not, that Mr Wilson


1 has carried out 91.2 hours work for the AWU for which the 2 AWU is seeking recompense from Unibuilt? 3 A. Mr Stoljar, I can't speak to every invoice issued by 4 the Union, especially from parts of the Union that I'm not 5 in charge of. This even postdates my time as Victorian 6 Secretary. The people best able to explain the purposes of 7 the invoice are those who made them. 8 9 As a general rule, I believe that what I was getting 10 was support in a campaign director. He was working hours 11 and hours and Unibuilt was paying it, firstly, directly and 12 then through the Union, but all to the same consequence: 13 campaign support for me in the lead-up to the 2007 Federal 14 election. 15 16 Q. Lance Wilson had not completed 91.2 hours work for the 17 AWU, had he? 18 A. Oh, I see what you mean. The AWU and Unibuilt wanted 19 Mr Wilson to complete work for me. I can assure you that 20 Mr Wilson was working for me, and he was putting in plenty 21 of hours. In terms of the text of this invoice, it really 22 is for other people to explain because I didn't issue it. 23 24 Q. I'm not asking you to explain how the words got there. 25 But looking at it now, you agree with me that that invoice 26 is incorrect in that it suggests that Lance Wilson had 27 completed 91.2 hours for the AWU? 28 A. As we agreed earlier, I think it would have been 29 better to call him "campaign director" from the outset and 30 make that clear. 31 32 Q. Why didn't you do that? 33 A. Because I didn't finalise the arrangements between 34 Mr Lockyer and the Union. 35 36 Q. Why not? He was your campaign director. 37 A. As you could well appreciate, when you're the 38 candidate, you don't do all of the paperwork. Your job is 39 to talk to people, be out there. My job also as leader of 40 the Union is to set the strategy. I am not in there daily 41 drafting the ledgers, checking the accounts, crossing every 42 T and dotting every I on every document that the Union 43 sends. 44 45 Q. No-one is suggesting that you should be, Mr Shorten, 46 but why not have an arrangement with Unibuilt which clearly 47 states that Lance Wilson would be working as your campaign


1 director and that they would be paying his wages? 2 A. Yes, I think that that would have been an easier way 3 to describe matters, absolutely, I agree. 4 5 Q. It would have been a true and accurate way to describe 6 matters? 7 A. Well, the truth is that Mr Wilson was working for me, 8 Unibuilt knew that, the Union knew that; my campaign knew 9 that. 10 11 Q. Can you come back to page 286. Do you agree with me 12 that the words under the heading "Description" in this 13 invoice are simply incorrect, in that they suggest that 14 Lance Wilson was carrying out work for the AWU for which 15 the AWU was seeking recompense? 16 A. I don't wish to be too repetitive, but I make the 17 point again that I didn't draft the invoice. 18 19 Q. I'm not asking that, Mr Shorten. I'm asking for a 20 "yes" or "no" answer? 21 A. Well, I think that a better way to have described this 22 is that Mr Wilson was doing hours and hours of work for the 23 AWU on my campaign and Unibuilt was paying it. 24 25 Q. Is the answer to my question, yes, you agree with me 26 that the words under the heading "Description" are simply 27 incorrect, in that they suggest that Lance Wilson was 28 carrying out work for the AWU for which it was seeking 29 recompense? 30 A. Well, I'm not going to own the precise wording of 31 this. What I think is the case is that Mr Wilson was doing 32 hours of work for the AWU on my campaign. 33 34 Q. Is the answer to my question "yes"? 35 A. Would you repeat the question again then? 36 37 Q. Yes. Do you agree with me that the words under the 38 heading "Description" in this invoice are simply incorrect, 39 in that they suggest that Lance Wilson was carrying out, or 40 had carried out in May 2007, 91.2 hours work for the AWU 41 for which the AWU was seeking recompense from Unibuilt? 42 A. Unibuilt was paying the AWU, who would then pay for 43 Lance Wilson to work on my campaign. That would have been 44 the best description in this invoice. 45 46 Q. So the answer to my question is, yes, you agree with 47 me that the words under the heading "Description" are


1 simply incorrect? 2 A. I think they're incomplete. They should have spelt 3 out what he was doing. But, again, you're asking me to 4 second-guess someone who has drafted an invoice and to work 5 out what's right and what's wrong about that. 6 7 Q. Can you offer any explanation as to why the AWU was 8 sending invoices to Unibuilt which didn't truly and 9 accurately reflect what was happening? 10 A. I think that Unibuilt was happy to pay for someone on 11 my campaign -- 12 13 Q. I know that. I'm asking you for -- 14 A. I am trying. I'm going to answer your question 15 Mr Stoljar. 16 17 Q. -- but my question is: are you able to offer any 18 explanation as to why the AWU was sending invoices to 19 Unibuilt that didn't truly and accurately reflect what was 20 happening? 21 A. You'll have to ask the people in the AWU who drafted 22 that invoice, why they did that. As far as I was 23 concerned, I was receiving a donation of someone's time, 24 first, directly from Unibuilt and then through Unibuilt 25 through to the Union to me as a campaign director. How the 26 Union conducted its relationship in terms of invoicing with 27 the company is just not a matter which I was directly 28 involved in. 29 30 Q. Is the answer to my question, no, you can't offer any 31 explanation to this Royal Commission as to how these 32 invoices were sent in these terms? 33 A. I just didn't draft the invoices. I can't provide you 34 any further assistance. 35 36 Q. You see, the invoices from thereon in, you can look at 37 one on page 288, for example, page 289, consistently 38 suggest that Mr Wilson is working for the AWU, I suggest to 39 you, and you can't offer any explanation, can you, as to 40 how those invoices came to be sent in those terms, is that 41 what you're saying? 42 A. No, that's right. I can, again, offer that the AWU 43 was happy to support me in my election and they were 44 campaigning against the then Liberal Government. I can 45 also say to you that Unibuilt made a donation of a resource 46 of a person directly, and then through the AWU to me. 47


1 Q. Could you come through to page 292. In the middle of 2 the page there's an email from a gentleman called 3 Michael Paynter of 26 September 2007 that attaches a new 4 Unibilt Collective Agreement. At the top of the page, 5 Mr Lockyer forwards it to Mr Melhem. He says: 6 7 I am back on deck sorry I have not been in 8 touch; I will catch-up with you next week. 9 10 Et cetera. And then he says: 11 12 I have attached an agreement ... Could you 13 have a look at it and arrange for it to be 14 signed off. I expect to be starting people 15 next week. 16 17 The other issue is that I have not paid the 18 July and the August accounts for Lance, 19 I will be in a position to bring them up to 20 date on 15 of October, I hope this has not 21 caused too much of an issue for you. 22 23 Did you see this invoice at the time? 24 A. This email? At the time? 25 26 Q. Yes. 27 A. No, not that I recall. 28 29 Q. Did you have any discussion with Mr Melhem about a new 30 Unibuilt Collective Agreement? 31 A. No, I don't believe I did. 32 33 Q. Did you have any discussion with Mr Melhem or anyone 34 else about the fact that the July and August accounts for 35 Lance Wilson hadn't been paid at that time? 36 A. No, I wouldn't have, I don't believe, either. 37 38 Q. Moving on, on page 293, there is Tax Invoice 020065 of 39 31 October 2007 and then page 294 is Tax Invoice 020359 for 40 30 November 2007, and then the tax invoices stop because, 41 of course, the election took place shortly before 42 30 November 2007. The short point is that the AWU chased 43 up Mr Lockyer or Unibuilt about paying these last two 44 invoices, you can see that on page 295. It says: 45 46 Your prompt & immediate payment of 47 $12731.52 ... is highly appreciated.


1 2 That's the second line on page 295. Ultimately, one sees 3 this on page 304, those invoices were simply written off. 4 So the last instalment of -- 5 A. Sorry, Mr Stoljar, when you say "written off", what 6 page are you quoting from there? 7 8 Q. Page 304. 9 A. 304? 10 11 Q. Yes. It says, "Can you advise Peter Troedel" - and it 12 must be "to write off the Unibuilt debt". 13 A. Right. 14 15 Q. And then credit notes are issued on page 305 and 306 16 for those last two invoices. I'm just following this 17 through to the end, Mr Shorten. The final amount of 18 $12,731, the last two invoices were not paid by Unibuilt 19 and the AWU wrote off - they paid presumably Lance Wilson's 20 wages for that period, but they wrote off recovering that 21 sum from Unibuilt, they didn't recover it. Did you have 22 any conversation with the AWU about that? 23 A. You've gone to three different sets of emails, so if 24 it's all right I might just go through. 25 26 Q. Certainly. 27 A. You were talking about the emails around 26 September, 28 I think, 2007. 29 30 Q. Yes, that's on page 292. 31 A. To the best of my recollection - and you were saying, 32 "Well, were you doing EBAs?", and you're asking for 33 donations all at the same time -- 34 35 Q. I don't think I did say that, but, in any event -- 36 37 THE COMMISSIONER: Q. I think the question on 292 was 38 did you have any discussions with Mr Melhem -- 39 A. Yes, thank you. 40 41 Q. -- regarding the agreement and did you have any 42 discussions with Mr Melhem about the non-payment of 43 Mr Wilson's accounts. 44 A. Okay. I think - and I'd have to go and try and check 45 whatever records they have, but by that time in September, 46 I was pretty much campaigning full-time for the election. 47 So, I certainly don't think I was taking a very hands-on


1 role with EBAs at that point. I don't recall talking to 2 Mr Melhem at that time. The other matters you then go to, 3 page 295, I see that email is dated 3 April 2008. I'd been 4 in Parliament for five months, so literally was not engaged 5 in any administrative matter in the Union, so I'm unaware 6 of that. And, again, you've then taken me to page 304 for 7 a document on the 1/10/2008, and I ceased to be involved 8 with the Union at all for quite a period of time, so I was 9 unaware of that too. 10 11 MR STOLJAR: Q. The real point is this, Mr Shorten, that 12 the final amount of $12,731 was not recovered by the AWU 13 from Unibuilt, and my question was did you have any 14 discussion with anyone from the AWU at any stage about that 15 fact, that Unibuilt had stopped making payments? 16 A. I didn't even know. So, no, I didn't. 17 18 Q. To the extent, at least, that Lance Wilson worked in 19 October/November and was paid, it would appear, an amount 20 of approximately $12,731, that really ended up being just 21 something that the AWU donated rather than Unibilt? 22 A. Well, if the Union couldn't recover it off Unibuilt, 23 that would be the consequence, yes. 24 25 Q. Do you know whether any approval of the members was 26 sought in respect of that donation? 27 A. Well, again, after my time. But what I'd also just 28 make as a general point is that the AWU was very supportive 29 of not only my campaign but campaigning against the then 30 Government. Whatever one's politics now, WorkChoices was a 31 disaster for working people and the Union was campaigning, 32 like lots of people. So there was absolute knowledge, 33 I believe by the members, that I was running for 34 Parliament. I think the fact that I was running for 35 Parliament amongst AWU members, as the AWU was supporting 36 me, was possibly as well known as Eddie McGuire is the 37 president of Collingwood. 38 39 Q. Can I just try and identify in overview, then, three 40 separate periods of time. The first period is 19 February 41 through to 16 May 2007. During that time, Lance Wilson's 42 wages were paid directly to him by Unibuilt and for that 43 fairly short period he seems to have been paid, I suggest 44 to you - and tell me if this sounds about right - 45 $12,500-odd plus an amount in super. Then we have a second 46 period, 16 May through to the end of September. For 47 reasons which you are unable to shed light on, he is now


1 employed, or nominally employed by the AWU Vic but is being 2 reimbursed in full by Unibuilt. We have another amount of 3 about $25,700 and there's a third period, October/November, 4 when he's still, it would appear, nominally employed by the 5 AWU, supposed to be reimbursed by Unibuilt but Unibuilt 6 didn't pay. That gives us a total amount paid by Unibuilt 7 of $40,000, I've got $40,203, and a total amount paid to 8 Lance Wilson of about $52,000. Does that sound about 9 right? 10 A. The general ballpark sounds right. I can't speak to 11 the precise numbers, but the general ballpark sounds 12 correct. 13 14 Q. Can you agree, in general terms, one can separate it 15 into those three periods of time? 16 A. Yes. 17 18 Q. Your proposition, as I understand it, from your 19 evidence this morning, is that the $40,000-odd that 20 Unibuilt supplied to acquire Lance Wilson's services was 21 some form of donation. Did you declare that to the AEC, 22 for example? 23 A. Well, it's come to my attention that the declaration 24 hasn't been made until very recently. 25 26 Q. Well, when you say "very recently", what do you mean 27 by that? 28 A. In the last few days. 29 30 Q. All right. Let's take this in steps, shall we. Can 31 I show you a Candidate's Return. 32 33 MR STOLJAR: Commissioner, I ask that this be received 34 into evidence. 35 36 THE COMMISSIONER: Yes, it will be known as Shorten MFI-4. 37 38 SHORTEN MFI-4 - CANDIDATE'S RETURN FOR ELECTION HELD ON 39 24/11/2007 40 41 MR STOLJAR: Q. I'm showing you a candidate's return for 42 election held on 24 November 2007. Is that your signature 43 in the middle of the page? 44 A. Yes. 45 46 Q. You signed it on or about 6 March 2008? 47 A. Yes.


1 2 Q. I take it you read through the document before you 3 signed it? 4 A. Yes. 5 6 Q. It is an important document? 7 A. Oh, yes. 8 9 Q. You noted, did you, that it says: 10 11 I certify that the information contained in 12 this return and its attachments is true and 13 complete. I understand that giving false 14 or misleading information is a serious 15 offence. 16 17 You read that through before you signed it? 18 A. Yes. 19 20 Q. And going over to the next page, paragraph A, "What 21 commencement date applies to this part?" It 22 says "28 February 2006". Is that your handwriting? 23 A. No. 24 25 Q. Whose handwriting is it? 26 A. I don't know, but it could well have been Mr Wilson's. 27 I don't know. Actually, I'd be guessing. I don't know. 28 29 Q. Was that the date on which you obtained preselection? 30 A. Yes. Yes. 31 32 Q. I take it you'd read through all of this second page 33 before you signed the document on the first page? 34 A. Yes. 35 36 Q. Likewise, somebody's crossed out in paragraph D 37 "Details of donations requiring disclosure". Who was that? 38 A. I don't know. I imagine it's the person who prepared 39 this declaration for me. 40 41 Q. And then on the last page, somebody's written "Nil" in 42 a number of boxes numbered 1 through to 6. Whose 43 handwriting is that? 44 A. I'd be guessing. I don't know. 45 46 Q. Come back to the second page of the document: 47


1 B. Total of gifts or donations received: 2 Nil. 3 4 A. Mmm-hmm. 5 6 Q. There's been a failure to disclose the fact that you 7 received the services of Lance Wilson from the period of 8 February through to November 2007; correct? 9 A. No, because there's another set of declarations which 10 you may or may not be aware of, but I'm happy to take you 11 to. 12 13 Q. Yes, please do. 14 A. These Candidate Returns frequently file "Nil return" 15 from both sides of politics. I think you'll find - I'll 16 come to it if you bear with me - that even Mr Abbott, for 17 the last three elections, or for a number of periods of 18 elections has filed a nil return. That doesn't mean he or 19 I aren't raising money or, indeed, getting donations. What 20 the Labor Party does is it requires - it advises you to do 21 this. What it also then requires is -- 22 23 Q. When you say "this", you just held up the 24 Candidate Return for the election of 24 November 2007, yes. 25 A. Yes. I forgot it is on the screen, you can see it, 26 I'm sorry. The Labor Party says you do these nil returns. 27 Then what it does is it requires - and I think it's 28 sensible - that all matters of fundraising go through the 29 Labor Party centrally. It helps, to the extent that you 30 can, get things as accurate and as complete as you can. So 31 what happens is - and I think, you know, they write to the 32 candidates several months before the election. I vaguely 33 recall advice from the Labor Party that you fill in a 34 separate form and you detail donations or support over 35 $10,500 and your various finances. 36 37 All my campaign accounts are kept by the ALP. I don't 38 have separate campaign accounts in my electorate. They are 39 they're all held, as I think most the ALP campaign accounts 40 for members, they're held by the Victorian Branch of the 41 ALP. So my campaign director would typically fill in - and 42 he has for the five years that he was my campaign director 43 - a return and it would list all the various matters and 44 you'll find quite a lot disclosed there, which is not here. 45 But I have discovered in very recent times that there was 46 an incomplete form sent to the ALP head office and that 47 is - and, you know, I take ultimate responsibility for


1 that, this is done by my campaign director each year and 2 we've now updated it. 3 4 Q. Do you have a copy of this form that has in the very 5 recent past been submitted? 6 A. I'm sure I can get my lawyers to provide it to you. 7 8 Q. There's been some update to the documents supplied to 9 the AEC, has there, in the last few days? 10 A. We've advised, as I should do, I've advised the ALP 11 and I leave it in the hands of the ALP to advise the AEC. 12 I understand that the ALP has confirmed they've received my 13 update. 14 15 Q. When was this sent? 16 A. Oh, last week or the beginning of this week. 17 18 Q. Can you be a bit more precise? When was it sent? 19 A. Within the last 144 hours, or last Friday or Monday, 20 Tuesday. What I did, once I'd seen all the Royal 21 Commission papers is I've gone back, I've sought legal 22 advice, I've worked out what needed to be done and I've now 23 completed that. I would also say - and it's not in the 24 matter of an excuse, but periodically campaigns do update 25 their information and political parties do. 26 27 MR STOLJAR: Commissioner, I wonder if this might be a 28 convenient time? It would give my side the opportunity, if 29 it's available, to have a look at this updated material to 30 which reference has been made. 31 32 THE COMMISSIONER: Yes. Mr Myers, you have a large team. 33 We normally adjourn for 15 minutes but would you like a 34 rather longer adjournment? 35 36 MR MYERS: Let me ask one question. (Counsel conferred). 37 I'm instructed we'd need 30 minutes to have the form 38 available. That 30 minutes can be during the continued 39 examination of the witness if the Commission didn't want to 40 take an adjournment until about midday. 41 42 THE COMMISSIONER: Yes. Mr Stoljar, do you want to 43 adjourn for a short time and resume questioning on 44 something else afterwards, or do you want to wait for the 45 arrival of the form? 46 47 MR STOLJAR: Unless I move to a completely different


1 topic, in order to proceed on this issue at all, I suspect 2 this form may have an impact and I wonder if it may be more 3 convenient, Commissioner, if we take a slightly longer 4 break than usual and I just hope that the form becomes 5 available. 6 7 THE COMMISSIONER: The hearing will resume at five past 12 8 unless word is received that people are ready to carry on. 9 10 SHORT ADJOURNMENT 11 12 THE COMMISSIONER: Yes, Mr Stoljar? 13 14 MR STOLJAR: Commissioner, I have been provided just in 15 the last few minutes with some further materials which 16 appear to be the documents that Mr Shorten was referring to 17 in his evidence just before the break. Rather than try and 18 deal with those on the run, I am going to move to another 19 topic and I will come back to those after lunch. 20 21 THE COMMISSIONER: Very well. 22 23 MR STOLJAR: Q. Mr Shorten, I'll ask you some questions 24 about a company called Cleanevent. You were at one stage 25 the organiser for that company? 26 A. Yes. 27 28 Q. You familiarised yourself with Cleanevent's business 29 in that capacity, I take it? 30 A. Yes. 31 32 Q. When did you start as the organiser? 33 A. Possibly it was around 1996. 34 35 Q. And then you became State Secretary in 1998. Did you 36 continue to have involvement with Cleanevent, yourself? 37 A. Yes, I would deal with Cleanevent. I would also have 38 organisers who would service the site - the sites, sorry. 39 40 Q. Who were the organisers? 41 A. Oh, I can't remember who all of them would have been 42 but there would have been a range of officials. 43 44 Q. You knew Mr Craig Lovett? 45 A. Yes. 46 47 Q. Did you have a close relationship with him?


1 A. Yes, we're friends. 2 3 Q. Can I show you a bundle of materials. 4 5 MR STOLJAR: Commissioner, there are in fact two volumes 6 of Cleanevent materials and I'd ask that they be received 7 into evidence. 8 9 THE COMMISSIONER: Yes. Those two volumes will be known 10 as Shorten MFI-5, subject to Mr Myers' rights described 11 earlier. 12 13 SHORTEN MFI-5 - TWO VOLUMES of CLEANEVENT MATERIALS 14 15 THE WITNESS: The desk is not the size of a battleship, so 16 I take it we don't need this one for the time being. Thank 17 you. 18 19 THE COMMISSIONER: If you ever get incommoded by that sort 20 of problem, just draw attention to it, Mr Shorten, it's no 21 difficulty. 22 23 THE WITNESS: Thank you. Yes, Mr Stoljar, I have two 24 Cleanevent bundles. 25 26 MR STOLJAR: Q. Could you have a look at volume 2 of 27 MFI-5. 28 A. Volume 2, yes. 29 30 Q. Go to page 37. This is an email from Mr Blandthorn to 31 Garry Ryan, who is President of the Queensland Branch of 32 the AWU, of 30 August 2006. He says: 33 34 Both Bill and Paul have asked me to 35 coordinate a national approach to 36 Cleanevent. 37 38 A. That's the email timed 1.30pm? 39 40 Q. Yes. 41 A. Yes. 42 43 Q. And you're obviously the "Bill" and the "Paul" is 44 Paul Howes, I take it? 45 A. Yes, they are those names, yes. 46 47 Q. At this stage, just to orient you in the time period,


1 negotiations were underway, were they, for the 2006 EBA? 2 A. They would have been, I think, yes. 3 4 Q. And you had asked Mr Blandthorn to co-ordinate a 5 national approach to Cleanevent, meaning a national 6 approach on behalf of the AWU, I take it? 7 A. Yes. In fact, in answer to an earlier question you 8 asked, I should very briefly just explain the structure of 9 how organisers and secretaries and how the Union would work 10 in terms of allocation of tasks. The Secretary at the 11 Branch level, and the AWU has 10 or 11 branches, would be 12 in charge of the strategic direction for that geographical 13 industry area. Then you have organisers who would visit 14 work sites and service members and organise and improve 15 their conditions. This is now at a time when I'm no longer 16 the State Secretary but the National Secretary and 17 sometimes we would seek to have a national approach. Say 18 you've got a business who preponderantly has dealt in one 19 State but it starts to have operations in other states or 20 it has operations in other states, you might get organisers 21 from individual geographic branches visiting and you might 22 need to adopt a national approach so that you don't create 23 all sorts of different terms and conditions, ideally. 24 25 Q. Was the part of the national approach a proposition to 26 the effect that one organiser would be used on a national 27 basis rather than various organisers around the country? 28 A. It was a fair while ago, but as I - you know, the 29 principle of what you're outlining is sensible in that if 30 you have one key official who sort of knows the ins and 31 outs of the company and how it's going, they would be 32 available to resolve disputes. They may well still get 33 visited. If you've got an operation in Brisbane, the 34 Brisbane organiser may well come and visit on day-to-day 35 matters. When it comes to working out some of the policy 36 issues of a national agreement, you might have one person 37 responsible for oversighting that and then reporting back 38 to branches. 39 40 Q. That would save money for the Union? 41 A. It is a more efficient use of members' resources. 42 43 Q. Can you go to page 39. That's an email from 44 Ms Hodgers to John-Paul Blandthorn. She is talking about a 45 proposal from Cleanevent. Was that proposal run by you, 46 do you know? 47 A. Which proposal is this email referring to?


1 2 Q. There seem to be various proposals under 3 consideration. It may be a proposal contained in the draft 4 under cover of an email from John-Paul Blandthorn at 38A, 5 but I don't want you to delve into the detail of it. Is 6 this the position: were you discussing various proposals 7 around this time with Mr Blandthorn or Ms Hodgers or 8 others? 9 A. Mr Blandthorn was the organiser who did a fair bit of 10 this work with Cleanevent, as I recall. I can't comment 11 about a particular proposal until I see what it's referring 12 to. The pattern within the Union is if an agreement was 13 getting particularly difficult or there's a demarcation, 14 demarcation being different unions contesting to be 15 eligible to represent the workers here, or there was a 16 particular problem, I would then have a look at proposals. 17 I wouldn't, in the ordinary course of events, look at 18 everything, but with Cleanevent, you know, I was aware that 19 this was a difficult process, so without being specific 20 about which proposal you're referring to, I have no doubt 21 or I believe that Mr Blandthorn may well have kept me in 22 touch periodically with the progress of this talk or 23 negotiation. 24 25 Q. Would you come to page 40. Looking at the bottom of 26 the page, Mr Dalla Costa sent an email noting that the AWU 27 have provided a draft agreement, and then further up the 28 page, these seem to be internal emails within Cleanevent, 29 so you may not be able to make any particular comment about 30 it, but at the top of the page it makes reference to a 31 revised draft which was presented to JP on Friday: 32 33 None of the issues we have re-drafted 34 presented a problem, except for the leave 35 loading whereby our proposal to build the 36 amount in the weekly rate will present a 37 fundamental political issue to 38 Bill Shorten ... 39 40 I appreciate this isn't your email, but do you know what 41 the fundamental political issue to which reference is made 42 is? 43 A. You've mentioned two emails. I think I should just 44 read them both, the first one and then the second one. 45 46 Q. Yes. 47 A. Because you're quite right, these are internal company


1 emails, as you've nominated, and I haven't seen them. 2 3 THE COMMISSIONER: I think, Mr Shorten, to get the 4 context, you may have to go back to page 42, which seems to 5 be the start of an email chain. 6 7 THE WITNESS: Actually, thanks, I hadn't realised that. 8 Thank you. 9 10 THE COMMISSIONER: It is a longish email that was sent on 11 21 September at 9.51am. 12 13 THE WITNESS: Thank you, Commissioner. I am sorry, 14 Mr Stoljar, there's three pages of detail here already. 15 16 MR STOLJAR: Q. That's all right, take your time. 17 A. All right, I've now read them. Would you be so good 18 as to repeat the question you're asking, thank you? 19 20 Q. It was to the effect, noting that it's not your email, 21 are you aware of what the fundamental political issue to 22 which reference is made on the email at the top of page 40 23 is? 24 A. No, I'm not. 25 26 Q. Can you come to page 116A. This is an email from 27 Mr Blandthorn to Mr Dalla Costa, to which you were copied 28 in, of 20 October 2006. He says: 29 30 Attached is a marked up copy of the 31 Agreement. 32 33 He has attached the draft as it stood at that time. He 34 says: 35 36 Points to note: 37 38 - There maybe some numbering issues. 39 - Sarah Hodgers still needs to approve it 40 from the AWU. 41 - I have spoken to the hierarchy of the 42 AWU and they can't afford to trade core 43 award conditions at the moment, because we 44 can't afford other unions attacking us. 45 46 And then goes on to make some further comments. I take it 47 you were among the hierarchy of the AWU that he spoke to?


1 A. I don't remember particular conversations, but 2 I certainly was in the hierarchy of the AWU at this time, 3 yes. 4 5 Q. He has copied in yourself and Mr Melhem. Is it fair 6 to say that you and Mr Melhem would be the hierarchy of the 7 AWU at that time? 8 A. I certainly was the National Secretary, yes. 9 10 Q. And then he goes on to say: 11 12 ... they can't afford to trade core award 13 conditions at the moment, because we can't 14 afford other unions attacking us. 15 16 Did you say that to Mr Blandthorn? 17 A. No, I wouldn't have put it that way and I wouldn't 18 have thought that either. What I believe is when it comes 19 to enterprise bargaining, you've got to be prepared to 20 negotiate. You've also got to make sure that you can 21 secure the best deal for your members. Periodically, 22 unions will have arguments about who is entitled to 23 represent workers, but I think, going back to those other 24 documents you quoted me from pages 40, 41 and 42, it shows 25 that the Union organiser was pressing the claim on a range 26 of issues to do well and seeking better conditions. I'd 27 love to say in a negotiation that a company always gives 28 you everything you want, but of course that wouldn't a 29 negotiation. 30 31 Q. Yes. My question was did you say to Mr Blandthorn 32 words to the effect that, "The AWU can't afford to trade 33 core award conditions at the moment because we can't afford 34 other unions attacking us"? 35 A. No, I wouldn't have said that; that's not what 36 I think. 37 38 Q. Award conditions are a safety net; correct? 39 A. Yes. 40 41 Q. Are they something that the AWU would trade at other 42 times? I note that he says "at the moment"? Do you see 43 that? 44 A. Yes. What was the question? 45 46 Q. Would the AWU trade core award conditions at other 47 times? He says they can't do it at the moment. Do you see


1 that? 2 A. No, I think that whole notion of trading misconstrues 3 what happens in enterprise bargaining. 4 5 Q. Does it? Did you write back and say, "You've got this 6 all wrong"? 7 A. I get cc'ed into a lot of things. I don't always 8 correspond with everyone who cc's, but let me explain to 9 you my philosophy which -- 10 11 Q. No. Did you write back and say to him, "You've got it 12 all wrong", yes or no? 13 A. I don't know, I don't have any copies of any 14 correspondence, but he -- 15 16 Q. He's clearly saying that - he's recording in his email 17 a conversation that he had had with the hierarchy of the 18 AWU; correct? 19 A. That's what he's written, yes. 20 21 Q. And you haven't written back saying, "Look, you've got 22 this all wrong", have you? 23 A. I don't know if I did or I didn't, Mr Stoljar, but, 24 Mr Stoljar, your question is carrying an implication which 25 does deserve to be dealt with, I think, in its full 26 context. 27 28 Q. Mmm-hmm. 29 A. Enterprise bargaining is not a simple system where you 30 turn up and you ask for a pay rise for employees. It would 31 be nice if it was but that's just not the way it works in 32 the real world. What happened is - and this is important, 33 so, if you don't mind, I'll just try and - I'll be as brief 34 as I can, though. Up to the early 1990s we had a situation 35 in Australia of centralised wage indexation. The ACTU and 36 unions would turn up before a Full Bench of the Industrial 37 Relations Commission and they would seek a general 38 across-the-board pay rise for awards, but in the early '90s 39 there was a pretty decisive change in industrial relations 40 in Australia. The view was that to get the best conditions 41 for workers and indeed to enhance the productivity of 42 Australian business, we needed to move to an enterprise 43 focus. Now, by nature, once you move to an enterprise 44 focus, what that means is you've got to look at what you 45 have to negotiate and what the employer has to negotiate. 46 I've never believed that the relationship between employers 47 and employees is simply described as one wins, one loses.


1 Periodically you might have a single issue negotiation 2 where that's inevitable. I believe the value created in 3 modern workplace relations is you can improve the 4 conditions of employees by improving the cooperation and 5 productivity at a work site. So then we dive forward to 6 this debate about award conditions, for instance, penalty 7 rates. Penalty rates have been developed over the years, 8 paid for uncomfortable hours or unsociable hours. 9 Enterprise bargaining saw the development of salary 10 packaging, saw the development of greater flexibility, so 11 you would lift a worker's overall pay rate in return for 12 changing some of the more rigid conditions. So the way 13 that this is expressed is poorly expressed and it doesn't 14 reflect my view. What I do believe is that the future - 15 and I believed it the whole time I was representing in the 16 Union, is I could do the best job for workers by engaging. 17 Sometimes not negotiating is a form of cowardice, whereas, 18 as a Union, we were prepared to try and work through and 19 win-win. Now, that's not always easy and of course 20 sometimes employers just would hold back, but anyway, 21 that's - I think if what JP is getting at, and you'll have 22 to ask him, is the nature of what's possible to negotiate 23 at a particular time, that's how I think and that's the 24 longer answer to your earlier questions. 25 26 Q. Have you finished your answer now? 27 A. Yes. 28 29 Q. Mr Blandthorn was the person actually negotiating on 30 the ground this EBA; correct? 31 A. Yes. 32 33 Q. And he, it would appear from this email, was 34 proceeding on the basis set out. He's communicated this 35 position to Cleanevent. Do you see that? 36 A. You mean in reference to 116A? 37 38 Q. Yes. 39 A. Yes. 40 41 Q. Who were the other unions that might attack you if you 42 traded core award conditions? 43 A. Well, as I'm not - whilst I don't accept the 44 assumption that we just trade-off bargaining, there was a 45 history of demarcation between the LHMU, now known as 46 United Voice, and the AWU going back to even before my 47 time, right back to the early 1990s.


1 2 Q. So you think that might have been a union who would 3 attack you if you traded off the core award conditions; is 4 that what you're saying? 5 A. Your question assumes that we were prepared just to 6 trade off award conditions and not see improvements. 7 8 Q. That's what the email says, doesn't it. That was the 9 position communicated by the AWU to Cleanevent? 10 A. Again, all I can do is explain to you what was 11 happening on the ground. Cleanevent was a company which 12 had grown over time -- 13 14 Q. Please, Mr Shorten, we've heard all this. That was 15 the position that was communicated to Cleanevent; correct? 16 A. Which position are you saying I communicated to 17 Cleanevent? 18 19 Q. I said the AWU, through Mr Blandthorn, communicated to 20 Cleanevent that "the AWU can't afford to trade core award 21 conditions at the moment because we can't afford other 22 unions attacking us." 23 A. I can't speak for what an individual organiser puts in 24 an email; obviously, you'd recognise that. 25 26 Q. An email to which you were copied in? You can't speak 27 to it? 28 A. If I can continue my answer to your previous question, 29 I can't speak to the correspondence that each individual 30 employee of the AWU sends, but what I can speak to is the 31 approach which I took in my dealings with Cleanevent. A 32 lot of these people live pay packet to pay packet. A lot 33 of people - it's not a great paying industry cleaning in 34 events. I don't know if you've been at the show at the end 35 of an evening, late at night, and you see people cleaning 36 up, or you see the jobs being done at various football 37 events. A lot of people who work in that industry, even 38 today, don't even get paid properly. They're not getting 39 paid superannuation and Workers' Comp and they're not 40 getting their proper pay slips, they're cash in hand. What 41 motivated me was to make sure I could secure as many hours 42 as possible for these people working at this company and 43 put a floor, and I mean an F-L-O-O-R, in terms of how this 44 industry could be organised and this company. That's 45 what's motivating me, so I can't speak to individual 46 correspondence, as you appreciate, but that's what drives 47 me.


1 2 Q. Do you know whether Mr Melhem wrote back to 3 Mr Blandthorn and said, "Look, you can't proceed on this 4 basis"? 5 A. I have no idea. If you have a document, I'm happy to 6 look at it to see if it refreshes my memory, but I have no 7 idea. 8 9 Q. None has been produced, Mr Shorten. Can you come to 10 page 117, please. This is a letter to you from Mr Lovett 11 talking about Derby Day: that's Melbourne Cup in 2006. 12 Did you drop in on the Cleanevent marquee in the Birdcage? 13 A. I can't even remember who won the Derby. I don't know 14 if I dropped in there to have a beer. I wouldn't put it 15 beyond myself to drop in to have a beer, but also I have to 16 say that I like going to the races. I think the 17 Spring Carnival is an excellent time of year. 18 19 Q. Who gave you the entry passes for the Birdcage? 20 A. That's my personal business. It's my wife - my then 21 wife gave it to me. Does it - do you mean the entry 22 passes to the - do you want to know how - whether or not 23 I was a member of the VRC or was a guest of the VRC -- 24 25 Q. Really what I want to know, Mr Shorten, is whether -- 26 A. Sorry, Mr Stoljar, as I recall, since you're 27 interested in my social organisation during the 28 Spring Carnival, I think that probably there was a car park 29 and the car park was in the Birdcage and it would have been 30 organised through family connections, but I'm not 31 100 per cent sure of that. 32 33 Q. The point, Mr Shorten, is this, negotiations for the 34 EBA are proceeding at this time? 35 A. Yes. 36 37 Q. Did you discuss the EBA negotiations when you dropped 38 in on Mr Lovett? 39 A. First of all, I do not know if I turned up to have a 40 beer. If I was turning up to have a beer, I'd probably 41 have been as interested in a tip about who was going to win 42 Race 5. In terms of my negotiations, I can assure you, 43 Mr Stoljar, I am most professional in the way I do it. The 44 sheer idea that two people in a negotiation may see each 45 other periodically socially is not an indicator. I don't 46 know if lawyers from different sides of arguments 47 occasionally might play golf together. I do not


1 immediately take, as a citizen of this country, an 2 assumption that justice is not working. 3 4 Q. Could you go to page 117A. 5 A. 117A. 6 7 Q. This is an email sent by Mr Blandthorn to Mr Dalla 8 Costa asking for a draft copy of the EBA. He says: 9 10 I will need to run through it in detail 11 before Bill can meet with Craig. 12 13 That's 2 November 2006. 14 A. Mmm-hmm. 15 16 Q. You talk me through the process. What happened? Did 17 you get a draft copy with marked-up changes, do you know? 18 A. Did Mr Blandthorn get a marked-up copy from Mr Dalla 19 Costa? 20 21 Q. Yes, and did you then discuss it with, run through it 22 in detail with him? 23 A. I don't know if Mr Dalla Costa sent it to 24 Mr Blandthorn, I have no reason to think why he wouldn't 25 have, but in terms of me running through the issues, 26 I assume - and I can only assume because it's a fair while 27 ago - that Mr Blandthorn might have briefed me on any tough 28 spots in the negotiation. 29 30 Q. You've looked through the documents I'm showing you, 31 I take it, before your hearing today? 32 A. I actually - all of these documents you've just given 33 me? 34 35 Q. Yes. 36 A. Assuming they're ones which have been served on us in 37 the last couple of days, I'll have certainly skimmed them. 38 You have provided me with a lot of documents and I've 39 certainly done my best. 40 41 Q. I'm trying to ascertain, if I can, what is going on in 42 this period. There seems to have been a meeting between 43 yourself and Mr Lovett, it would appear, on 9 November 44 2006, that's the Thursday, but going back a week - I'm just 45 drawing that to your attention so you can be clear, that's 46 on 117C - but going back a week, 117A still, is the meeting 47 that you had I presume to talk about the EBA, that meeting


1 or an earlier one? 2 A. So you're - just so I understand the question, you're 3 saying did I meet with Cleanevent and when did I meet with 4 them? 5 6 Q. Yes. 7 A. Over my 10 years I'll have had meetings with 8 Cleanevent. Whether or not it was on November 9 - or what 9 was the other date you were nominating? 10 11 Q. That was the main one I was nominating, but you seem 12 to have had -- 13 A. I could have. I have to say - you know, I think, in 14 all fairness, I'm not sure how many other people know where 15 they were on November 9, 2006. That doesn't mean that it 16 didn't happen at all, but you're asking me to be accurate 17 about something which is very difficult to do. 18 19 Q. If you go to 117B, Mr Blandthorn is now writing to 20 Cleanevent. He says: 21 22 Good afternoon Craig and Ivan, 23 24 The AWU will raise the following points at 25 tomorrow's meeting ... 26 27 And raises a number of points. Take a moment to read 28 through this email, if you need to. Did you need to take a 29 minute? 30 A. Yes, I'm just reading through it. Yes, I've read it 31 now, thank you. 32 33 34 Q. And then in the fifth dot point: 35 36 What formula was used to calculate salary? 37 Does this meet no-disadvantage? 38 39 Was that something you discussed with Mr Blandthorn? 40 A. Mr Blandthorn could well have raised these issues all 41 on his own. Alternatively, he could have raised them with 42 me or indeed other industrial officers of the Union who 43 would have been assisting him in terms of preparation of 44 this enterprise agreement claim and no doubt he would have 45 spoken to delegates too. 46 47 Q. And then in the third-last dot point he says:


1 2 Overtime should be - time and a half first 3 4 hours Saturdays & double thereafter. 4 Double on Sundays, and double time and a 5 half on public holidays. 6 7 Is that something you discussed with him as well? 8 A. I can't go to every discussion I've had, but I'm sure 9 if JP is raising it, or Mr Blandthorn, sorry, I was calling 10 him by his first name, Mr Blandthorn's raising it, he could 11 well be raising it. It could have been questions from 12 industrial officers or indeed myself. 13 14 Q. In any event, you then had the meeting, did you, with 15 Mr Lovett on or about 9 November? 16 A. We must have; yes, I assume I did, yes. 17 18 Q. And then 117E, Mr Blandthorn is writing to Cleanevent 19 asking if there is now a draft agreement in place. The 20 next page, 117F, Mr Blandthorn attaches an up-to-date copy 21 of the EBA. He says: 22 23 Bill is having a think about the issue 24 outside VIC & NSW, otherwise I am confident 25 we have an EBA that will get a minimum 26 80% yes vote. 27 28 The agreement appears at 117G and following and the rates 29 of pay contemplated in that agreement are at 117Q, that is 30 to say, clause 16, and if you go over to 16.8 on 117R - I'm 31 sorry, 16.7. 32 A. Sorry, could you say those numbers again, please? 33 34 Q. Yes, 16.7 on 117R. Those are the hourly rates for 35 casual workers working at events contemplated in the 36 agreement, or draft agreement as it stood on 27 November 37 2006, if you go back to 117F. 38 A. What is the question? You're reading out the numbers. 39 I just don't know what the question is. 40 41 Q. Yes. Perhaps I'll approach it this way. You received 42 the email on 117F from Mr Blandthorn? 43 A. Yes, I've been cc'ed into that. 44 45 Q. And he says: 46 47 Bill is having a think about the issue


1 outside VIC & NSW ... 2 3 I take it you'd had a discussion with him about the draft 4 as it stood at 27 November 2006? 5 A. I believe I would have. I can't say with any 6 certainty what the discussion was. 7 8 Q. You would have discussed it also with Mr Lovett at 9 your meeting a few weeks before? 10 A. At the November 9 meeting you're asking? 11 12 Q. Yes. 13 A. If I was there, we would have spoken about the 14 agreement. 15 16 Q. And you would have talked about the rates -- 17 A. I assume I was there. Sorry, I didn't need to say 18 "if". 19 20 Q. You would have talked about the rates for casual 21 workers? 22 A. I can't go into everything that we spoke about, not 23 because I don't want to, but realistically, as I said 24 earlier, I can't recall the discussions I had on any other 25 part of November 9 that year or probably quite a few 26 November 9s since then. 27 28 Q. 123A - I'm just drawing this to your attention for two 29 reasons. One is the agreement was ultimately signed off on 30 or about 21 December 2006; is that right? 31 A. I wouldn't mind seeing the signature page to confirm 32 that date. 33 34 Q. Certainly. The precise date may not be that 35 significant, but the signature page is at 159. 36 A. All right. I can't -- 37 38 Q. It doesn't have a date, but does that sound about 39 right? 40 A. I can't attest to the date, but I see it's signed by 41 Graham Roberts from the Union. 42 43 Q. Yes. If you go back to 123A, he was the Assistant 44 National Secretary at that time? 45 A. Yes. 46 47 Q. You had approved it, though, had you?


1 A. The process for approval, again, I've only just 2 refreshed my memory from reading some of the documents you 3 provided, is that it would have gone to a vote of the 4 members. Just to explain my policy in terms of approval of 5 agreements, where there are existing members employed, we 6 would go to a vote of the members. One of the most 7 important features of the Union is making sure that there's 8 a vote of the members. Now, in this case I've looked 9 through some of the documents. It's clear that JP, or 10 Mr Blandthorn, and the company and the delegates had quite 11 an extensive balloting process, so once that's happened and 12 once the organiser has told the Secretary or the 13 Secretary's nominee that it's appropriate to sign, then 14 I or my delegate would have signed it; in this case it was 15 the Assistant National Secretary. 16 17 Q. I take it then the answer is that you at that point 18 satisfied yourself that it was appropriate to be signed 19 off? 20 A. Well, yes, in terms of the process which I've outlined 21 and just for the sake of clarity, the way that unions would 22 sign EBAs where there's an existing workforce is that you 23 would have a vote of the members. You would involve 24 delegates in discussions. You would have - the Union would 25 pursue claims; occasionally the company would pursue claims 26 back. You would endeavour to get the best deal you 27 thought. You would take it to members. Conceivably, 28 members could say "Yes" or "No" or "We want a variation" 29 and that will be the approval process which has happened 30 here. So when you ask me did I approve it, the Union 31 Secretary or their nominee would have approved it after the 32 process of engaging with your members. 33 34 Q. There were a large number of Cleanevent members on the 35 AWU Vic roll; correct? 36 A. Well, again, I'd have to ask you for which year are 37 you referring and also when you say - and at what time are 38 you referring and I have not -- 39 40 Q. I'll show you a -- 41 A. I have not - just so you understand, when I left the 42 Union I did not take a register of the members with me, so 43 whatever records there are will be in the preserve of the 44 Union, so I can't tell you how many people would have been 45 on. 46 47 Q. I'll come back to that in a minute. How did employees


1 of Cleanevent, casual or otherwise, become members of the 2 AWU? I realise that in the ordinary course membership 3 forms were signed, but was there some special arrangement 4 in terms of Cleanevent? 5 A. What do you mean "special arrangement"? 6 7 Q. Was there an opt-out arrangement? 8 A. My general policy and I think it was the case -- 9 10 Q. Please, Mr Shorten, was there an opt-out arrangement, 11 yes or no? 12 A. There's no way I can answer your question without 13 giving you context. 14 15 Q. I'm not interested in your general policy, I'm just 16 asking you about a factual matter. How is it that 17 employees at Cleanevent became members of the AWU? 18 A. I believe that members at Cleanevent would have been 19 enrolled in the same way which we did it everywhere else 20 and that policy was that we would seek employers to provide 21 membership forms when people started work. Alternatively, 22 where the employer was neutral and didn't really want to 23 encourage Union membership, our delegates would hand out 24 forms to new starters. I often thought it was a good idea 25 in the first few days that the delegates spoke to new 26 starters. Sometimes where the employer was downright 27 hostile to Union membership then it would be a lot more 28 difficult process to be able to talk to people. I could 29 well imagine and believe that at Cleanevent, as part of an 30 induction, by induction, you know, the new employee turns 31 up, you fill out your superannuation paperwork, you fill 32 out all your pay details, that the employer would hand a 33 Union membership application. I am definitely sure that it 34 wasn't a closed shop. "Closed shop" is just industrial 35 relations lingo for everyone had to be in the Union. Mind 36 you, I think we did a good job for workers, so, you know, 37 I'd always encourage Union membership. 38 39 Q. You were the Cleanevent organiser from 1996? 40 A. Yes. 41 42 Q. You told me that before. Are you able to say whether 43 or not there was ever an arrangement in place whereby 44 employees had to tick a box on job application forms to opt 45 out of Union membership if they wished to do so? 46 A. I would need to see the form to which you are 47 referring.


1 2 Q. I'm asking you whether, from your experience working 3 as a Cleanevent organiser from 1996, you were able to say 4 whether at any stage in your experience there was an 5 arrangement of that kind? 6 A. I might well have aspired to an opt-out arrangement, 7 but I honestly don't know and I'd have to see the 8 membership forms. 9 10 Q. You don't know? 11 A. No, I'm saying that - I think it's a good thing if 12 people join a union. I think it's a good thing if an 13 employer gives people the choice to join a union, but what 14 I can promise you, Mr Stoljar, is I wasn't forcing people 15 to be in the Union, but, quite frankly, when you look at 16 some of the conditions and benefits over-award that we 17 deliver and representation from helping people on their 18 Workers' Comp to unfair dismissal, unions in Australia are 19 a good service. 20 21 Q. Can I show you a table that has been prepared by staff 22 at the Commission. 23 A. Thank you. 24 25 MR STOLJAR: Commissioner, I'd ask that this be received 26 into evidence. It is a summary document of membership 27 records, but it needs to be identified in some way. 28 29 THE COMMISSIONER: I will mark it as Shorten MFI-6. It 30 may be at some stage the sources that underlie these 31 general figures should be identified, so that if desired, 32 Mr Myers, for example, could check them. 33 34 MR STOLJAR: Absolutely, yes. 35 36 SHORTEN MFI-6 SUMMARY DOCUMENT OF MEMBERSHIP RECORDS 37 PREPARED BY COMMISSION STAFF 38 39 MR STOLJAR: Q. Are you looking at MFI-6 now, 40 Mr Shorten? 41 A. (Nods). 42 43 Q. I can tell you that what has happened is that the 44 AWU Vic, in fact, it must be the AWU - certainly the 45 AWU Vic has provided its membership register referrable to 46 the years identified in the column on the left and 47 Commission staff have searched that register to identify


1 numbers of members that are listed as being employed by 2 Cleanevent. The numbers relevant to Victoria are in the 3 second column from the left. You can see that in 1999, 4 listed on the membership register, there were 894 and the 5 numbers grow fairly dramatically over the following years. 6 Do you see that? 7 A. Yes. 8 9 Q. Do these figures look about right to you? Do you 10 think there were that many members? 11 A. I'd need to see a bit more information. 12 13 Q. What would you need? 14 A. I'd need to see a break-down of their financial status 15 versus their unfinancial status. 16 17 Q. Because some of these persons may be recorded as 18 members although they had ceased paying dues for some 19 reason? 20 A. Well, there'd be a - I'd need to think about that. 21 There would be a few factors at work here, Mr Stoljar. One 22 would be, you know, are they financial. The second one 23 would be are they paying on a regular basis or just for an 24 event? So I would need more information to understand the 25 nature of this data that you've provided. 26 27 Q. All right. Do you agree that there were a large 28 number of Cleanevent employees who were members of the AWU 29 in, let's take the year ending 31 December 2006? 30 A. Well, I just don't know how many of them would have 31 been financial, so I can't - you know, pick 2006. That was 32 the Commonwealth Games, as I recall, it was in Melbourne. 33 Cleanevent would have had a range of event casuals for the 34 Commonwealth Games. What I don't know is the duration of 35 the membership of these people. What might have happened 36 is at the Royal Melbourne Show or at the Cox Plate you'd 37 flex up the number of casuals that you would have. I do 38 recall that the Union would set a casual event membership 39 rate of, I don't know, $25 or something, so I would need to 40 see a fair bit more information than what you provided to 41 be able to, you know, explain all of the information. 42 43 Q. The casuals did the actual cleaning; is that right? 44 A. As opposed to permanents? 45 46 Q. Yes. 47 A. No, I think the permanents did cleaning as well.


1 2 Q. They did cleaning as well. 3 A. Just one other thing, Mr Stoljar, again, just in the 4 way of understanding and deconstructing this data, is that 5 I would be curious also to know throughout what the period 6 was between being unfinancial and being purged off the 7 records. You know, you hope to recover people's arrears 8 and dues. There's just a fair bit of information you need 9 here, I think. 10 11 Q. All right. The 2006 EBA, which we've just been 12 looking at, remained in force, in substance, until last 13 month, in fact, June 2015; correct? 14 A. Well, I've read that in the newspapers. Obviously, as 15 you know, I ceased to be involved in the Union from 2007. 16 17 Q. From 2010 there was a side deal pursuant to which 18 Cleanevent paid about $25,000 a year to the AWU. Did you 19 have any knowledge or discussion about that during your 20 time at the AWU? 21 A. No. 22 23 Q. Was there any side deal or arrangement like that 24 negotiated between you and Cleanevent while you were at the 25 AWU? 26 A. No. 27 28 Q. When did you become aware of the side deal? When 29 I call it that I mean the arrangement pursuant to which 30 $25,000 a year was paid from about 2010? 31 A. Only in very recent times. 32 33 Q. The AWU went to the Fair Work Commission to seek that 34 the deal be terminated. That was on 4 June 2015, if you 35 have a look at page 177. The documents that the AWU 36 supplied to the Commission are at 179 and following. 37 I wanted to draw your attention, in particular, to page 191 38 which is headed "Comparison of Current Cleaning Award 2010 39 and 2006 Agreement Rates". Do you see that? 40 A. Yes. 41 42 Q. You can see that for permanent employees, in the box 43 in the middle, the AWU has noted that the agreement rates 44 for Saturdays, Sundays and public holidays are - well, they 45 are what they are in Levels 1, 2, 3 and 4, and they're a 46 very great deal below what would be under the Award, if you 47 look at the box at the top of the page, but I wanted to


1 draw your attention in particular to page 192, 2 "Casual Employees", the box at the top, public holiday 3 rate, for example, that's Award as at July 2014, $56.28 for 4 Level 1 and in the second-last box Level 1 gets $16.28. 5 They get about $40 an hour better under the Award. Do you 6 see that? 7 A. Yes, I do. 8 9 Q. You've got no reason to challenge that, do you? This 10 is a document prepared by the AWU, not me. Do you accept 11 it? 12 A. I see what's written here, absolutely. 13 14 Q. You accept, don't you, that certainly in June 2015 15 casual employees would be vastly better off under the award 16 than continuing to be under the 2006 Agreement? 17 A. I see the comparison you're making. 18 19 Q. But you accept that proposition, don't you? 20 A. Well, I actually want to go into a fair bit of what 21 you're saying here and again, you're asking me to compare 22 something in 2015 to something in 2006. 23 24 Q. No, I'm asking you to compare what the position would 25 have been as at 4 June 2015 -- 26 A. To 2006. 27 28 Q. Well, the 2006 Agreement is still in force. 29 A. Ah-hah. But you cannot say and there is nothing to - 30 and I've indicated I've had no involvement with updating 31 those rates since 2006, so what you're effectively doing, 32 Mr Stoljar, is you are saying, "Look at this", which 33 I haven't had anything to do with since I finished with the 34 Union, and then judging me in hindsight when I'm well 35 beyond the Union. 36 37 Q. I'm not judging anybody, Mr Shorten -- 38 A. Okay, sorry, then I take that back. 39 40 Q. -- I'm merely asking you to look at this document. On 41 the basis of this document, do you agree that - and I'm 42 just taking this as a starting point - in June 2015 workers 43 would be vastly better off under the Award than under the 44 continued 2006 Agreement? 45 A. Yes. 46 47 Q. Can you then come please to page 186. That's the


1 submissions that the AWU put on. I won't take you through 2 them all, but I just wanted you to have a quick look at 3 190. The AWU says: 4 5 The view of the AWU is the 2006 Agreement 6 should be terminated. 7 8 The view of employees the AWU has spoken 9 with [have expressed the view it] should be 10 terminated. 11 12 Paragraph 22 on page 190: 13 14 Under the 2006 Agreement, employees working 15 at events do not receive higher rates when 16 they work on weekends and public holidays. 17 18 Paragraph 23: 19 20 Although the termination of the 21 2006 Agreement may result in higher 22 operating costs for the employer, these are 23 the minimum rates and conditions that have 24 been carefully determined for the cleaning 25 services industry by the Fair Work 26 Commission and the rates which are 27 presumably already being paid by their 28 competitors. 29 30 On this basis, we submit it is appropriate 31 for the 2006 Agreement to be terminated. 32 33 If you go back to 189, paragraph 12, the AWU makes the 34 point that the employees are still governed by the 35 2006 Agreement which was negotiated under predecessor 36 legislation which did not require an assessment of whether 37 employees would be better off overall under the proposed 38 agreement than they would be under the relevant 39 Modern Award. By the "predecessor legislation" I mean the 40 WorkChoices legislation. You don't see any reason to 41 disagree with the submissions that the AWU has put forward 42 in those passages I've taken you to? 43 A. No. 44 45 Q. Could you come then to the decision itself. 46 47 THE COMMISSIONER: Is it 217?


1 2 MR STOLJAR: Yes. 3 4 Q. I said the decision itself. I will take you, firstly, 5 Mr Shorten, through some of the submissions that were made 6 orally. I have taken you to the written submissions. 7 I want very briefly to put it in context, to take you to 8 the events on the actual hearing. That begins on page 198 9 and then I won't take you through all the legal debate. If 10 you go to page 208, the AWU's counsel says at PN79: 11 12 I would submit it would be quite difficult 13 to mount an argument that the termination 14 of this outdated agreement that expired in 15 2009 is contrary to the public interest. 16 17 He says: 18 19 Actually in many respects we would say it 20 is actually in the public interest for this 21 agreement to be terminated ... 22 23 And you know, of course, that under the Fair Work Act 2006 24 the Commission has to be satisfied it's not contrary, among 25 other things, to the public interest to terminate, so 26 that's why the proposition is phrased in the way it is at 27 the beginning of PN79. You're familiar with that, 28 I presume? 29 A. I'm not familiar with the particular section but I get 30 the idea of the public interest. 31 32 Q. What the AWU's counsel is saying is, "In many respects 33 we would say that it's actually in the public interest for 34 this agreement to be terminated", so he goes further. And 35 then at PN80: 36 37 ... it is obviously the view of the AWU 38 that the agreement should be terminated. 39 40 And the Commissioner says: 41 42 I presume the fact you have made this 43 application provides some indication of 44 that as well. 45 46 And then at PN82 Mr Crawford submits, about halfway through 47 that paragraph:


1 2 ... it would be highly unlikely that any 3 employee would have any objections to the 4 agreement being terminated. There doesn't 5 seem to be any real benefit for any 6 employee from having the agreement remain 7 in operation. In our submission this old 8 agreement, the only purpose that it is 9 currently serving is to deny employees, 10 particularly casual employees, access to 11 penalty rates. 12 13 You don't -- 14 A. The question is? 15 16 Q. You don't see any reason to disagree with those 17 submissions, do you? 18 A. I agree. And at PN83 the AWU's submission is that the 19 2006 Agreement by 2015 had become outdated, obviously 20 that's true, and the 2006 Agreement I don't imagine was 21 ever designed to last for nine years. I agree with the 22 Union's proposition on that. Also, back in 2006, Labor 23 hadn't won an election and improved the workplace laws, 24 which is the foundation of the start of the 2010 Award, so 25 I agree completely. 26 27 Q. All right, we are in agreement then, Mr Shorten. Can 28 you go to page 209. The Commissioner notes that the views 29 of the employees who had been spoken to are not in support 30 of the agreement remaining in place. And then taking you 31 to the decision itself, that begins at 217, the 32 Commissioner - again, I won't take you through all the 33 detail, but if you come to 219, at paragraph 15 the 34 Commissioner notes that the submissions were to the effect 35 that it would be in the public interest to terminate the 36 agreement. At paragraph 17, the views of the AWU are 37 self-evident. At paragraph 18, the employees support it. 38 I take it you see no reason to disagree with anything that 39 the Commissioner says in the passages that I've identified 40 for you? 41 A. In the passages you've identified, I agree. 42 43 MR STOLJAR: I note the time, Commissioner. 44 45 THE COMMISSIONER: Yes. Should the hearing resume at five 46 past 2? 47


1 MR STOLJAR: Yes, Commissioner. 2 3 THE COMMISSIONER: The hearing will resume at 2.05pm. 4 5 LUNCHEON ADJOURNMENT 6 7 THE COMMISSIONER: Yes, Mr Stoljar. 8 9 MR STOLJAR: Mr Shorten, just before I come back to 10 Cleanevent, I will ask you some questions about the 11 documents that your legal team supplied to the Commission 12 this morning. Can I provide you with two documents. These 13 are the documents which were provided this morning which 14 I think you made reference to in your evidence before 15 lunch. Commissioner, I would ask that these be received 16 into evidence. It is a letter from Mr Shorten to the 17 Acting Secretary of the ALP Victoria Branch 6 July 2015 and 18 a Financial Disclosure Annual Return to the ALP or in 19 respect of the ALP Victorian Branch, 1 July 2007 to 30 June 20 2008. 21 22 THE COMMISSIONER: Yes, they will be Shorten MFI-7. 23 24 SHORTEN MFI-7 - LETTER FROM MR SHORTEN TO THE 25 ACTING SECRETARY OF THE ALP VICTORIAN BRANCH, 06/07/2015, 26 AND FINANCIAL DISCLOSURE ANNUAL RETURN IN RESPECT OF THE 27 ALP VICTORIAN BRANCH, 01/07/2007 TO 30/06/2008 28 29 MR STOLJAR: Q. Mr Shorten, could I ask you first to 30 look first at the letter of 6 July 2015. This is a letter 31 that you sent on Monday and you are asking the ALP - I am 32 looking at the third paragraph - to amend the financial 33 disclosures annual returns, plural, by including certain 34 amounts and you have only attached one return, that is the 35 30 June 2008. Was there one for the year 30 June 2007? 36 A. I don't think so, no. 37 38 Q. The amounts that you have asked to be included, so 39 looking at the first dot point of the letter, it says 1257, 40 (Campaign Manager). Now, is that -- 41 42 THE COMMISSIONER: 12,587. 43 44 MR STOLJAR: Q. 12,587, I beg your pardon, 45 "(Campaign Manager)". It says "manager". I think you 46 referred to Mr Wilson as a campaign director in your 47 evidence this morning, but that is Mr Wilson's remuneration


1 from Unibilt, is it? 2 A. Yes. 3 4 Q. And then the second amount is the person that we're 5 simply referring to for the time being as the second 6 campaign worker? 7 A. I'm not sure. No, I actually think that is also 8 Mr Wilson. You may recall this morning you were asking me 9 about Unibilt paying for Mr Wilson? 10 11 Q. Yes. 12 A. And then you spoke about Unibilt paying the Union to 13 pay for Mr Wilson. I think that just reflects that change 14 in status of Mr Wilson being directly employed first by 15 Unibilt and then indirectly by Unibilt through the 16 Victorian Branch of the AWU. 17 18 Q. I see. So in the next paragraph where you say: 19 20 Please note I also received a benefit from 21 the AWU - National Office for campaign 22 support ... 23 24 Where do you capture the second campaign worker in this 25 letter? 26 A. I believe it's captured in the - let me just read it 27 carefully. The second dot point, 1 July 2007 to 30 June 28 2008, and it's the second point, "(Campaign support)". I'd 29 have to go back and check if this part-time worker was 30 working for me in the first part of the year, but if it was 31 the case, I think it was less, as I've said here, than the 32 $10,500 disclosure amount under the law. 33 34 Q. That worker was working for you from January, was she 35 not? 36 A. I'd have to refresh my memory, but I don't know 37 exactly when, but I understand from my investigations that 38 it was less than $10,500 in value. 39 40 Q. Looking at the year ending 30 June 2008, the first dot 41 point, that is the amount referable to Lance Wilson, is it? 42 A. Yes. As best we can work out, we've tried to obtain 43 information from the Union and this is our best endeavours. 44 45 Q. When you say "best endeavours", you had as of 6 July 46 2015 the materials from the Royal Commission in respect of 47 this issue, did you not?


1 A. Yes, thank you. I can explain what I mean by "best 2 endeavours" if you like? 3 4 Q. Yes. 5 A. There are two sources of information, as I recall. 6 One is the information from yourselves. The other 7 information would be Mr Wilson's actual group certificates 8 and where it wasn't possible to exactly reconcile it, 9 you'll see that the next paragraph below the one you're 10 quoting is that: 11 12 As it has been difficult to obtain precise 13 information on benefits received, I have 14 relied on the higher quantums in the 15 information provided to me. 16 17 Q. You make reference to Mr Wilson's group certificates. 18 Did you ask for them from somebody? 19 A. I asked my lawyers to follow up this matter. 20 21 Q. When was that? 22 A. In the last few weeks. 23 24 Q. Can you be more precise? 25 A. No, not really; in the last few weeks. 26 27 Q. Before 6 July 2015? 28 A. Yes. 29 30 Q. What prompted you to do that? 31 A. It came to my attention through documents provided by 32 yourselves and also going back and checking matters in 33 preparation for this Royal Commission. 34 35 Q. Of whom did your lawyers make inquiries? 36 A. In all fairness, I think you'd have to ask them. 37 I can go and talk to them to refresh my memory. 38 39 Q. Didn't you instruct them to make inquiries of 40 somebody? 41 A. In terms of Mr Wilson's employment, it came to my 42 attention that the forms provided by the ALP had incomplete 43 disclosure. 44 45 Q. How did that happen? 46 A. Sorry, I'll still just try to answer the first 47 question first. So then I take steps to make sure I get to


1 the bottom, making sure that if we are to disclose properly 2 what has been omitted, I wanted to try and do it once and 3 get it correct and then we were acquiring information from 4 the Union and eventually we received that, plus your own 5 information. 6 7 Q. You say you eventually received that. How long 8 elapsed between asking for the information from the Union 9 and you receiving it was there? 10 A. I couldn't say exactly how long it took, but we 11 certainly took what steps that had to be taken when 12 I became aware that there was an incomplete disclosure. 13 14 Q. You said by looking at documents. What documents 15 caused you to realise that there had been this problem? 16 A. Unibilt, the Royal Commission stuff was one source, 17 but also in preparation for the Royal Commission more 18 generally, I wanted to make sure that everything that 19 should be done and everything was checked was, and this 20 came to my attention. 21 22 Q. And this was obviously well before 6 July 2015? 23 A. Oh, a matter of weeks, maybe months. 24 25 Q. Maybe months? 26 A. It's been a process to get the information from the 27 Union. 28 29 Q. And when did you get the information from the Union? 30 A. Oh, I couldn't tell you that. That'd be - I'd have to 31 consult with my lawyers. 32 33 Q. So is this fair to say, you've known there's been 34 a problem for months? 35 A. I've known that we needed to make a complete - resolve 36 the incomplete disclosure, but in order to do that I sought 37 legal advice to make sure that when we did it, we did it 38 properly. 39 40 Q. What further information did you need? You knew he 41 had been working for you for nearly a year. 42 A. Well, in terms of what information, I didn't have 43 Mr Wilson's group certificates. I didn't have a line of 44 sight in terms of how the Union had transacted with 45 Unibilt, and indeed it's only been today that I've 46 subsequently discovered that Unibilt didn't complete the 47 payments to the Union, which I thought had happened.


1 2 Q. In the second dot point, where it says "$42,968.88 3 provided by Unibilt", that includes the amount of about 4 $12,000 that was actually paid by the Union; is that right? 5 A. I imagine so, yes. I'd need to see all the documents 6 behind it, but, yes. 7 8 Q. It's provided by the Union and they sought recompense 9 for Unibilt but didn't get it. If you've known about this 10 for some months, what prompted you to actually make the 11 disclosure on 6 July 2015? 12 A. Again, I'd have to ask my lawyers, but I think all the 13 information finally arrived. 14 15 Q. What information were you waiting for? 16 A. Group certificates, copies of Union invoices. 17 18 Q. Can you be a bit more precise than that? What exactly 19 did you receive that enabled you to write this letter that 20 you'd been missing? 21 A. Again, I would - amongst the matters would have been 22 group certificates from Mr Wilson, group certificates from 23 the campaign support person, information from the Union 24 about what invoices or what they paid out. 25 26 Q. You told me earlier today that you, yourself, had had 27 some discussion with Mr Wilson when you ran into him in 28 a shopping centre. Did you cause or ask your lawyers to 29 have any discussion with Mr Wilson, or any of his 30 representatives? 31 A. When I ran into Mr Wilson it was at High Point in the 32 western suburbs. I think it was in January or February. 33 We spoke about family matters. He was there with his 34 family and children; I was there with mine. In terms of 35 what my lawyers - who they have spoken to to chase down 36 information I would have to find out, but certainly as 37 of July the 6th I was able to make a complete disclosure to 38 the information which I had available. 39 40 Q. Did you, through your lawyers or otherwise, ask 41 Mr Wilson for any of this information? 42 A. I'm sure that I would have asked my lawyers to find 43 out all the information possible and that could well 44 involve them speaking to Mr Wilson and contacting the 45 Union. 46 47 Q. Surely they've told you whether or not they did that?


1 A. Well, I certainly gave instructions to my lawyers that 2 I want the matter resolved, I want to make sure that the 3 incomplete disclosure is completed, and I made sure 4 I obtained very good legal advice in doing it properly. 5 6 Q. Did they tell you whether they had done that or not? 7 Are you able to answer my question? 8 A. I believe my lawyers have provided me with good advice 9 and they've given me all the information they could obtain, 10 absolutely. 11 12 Q. That really is not an answer to my question, with 13 respect, Mr Shorten. I'm trying to ascertain when you or 14 your lawyers, or whether you or your lawyers sought this 15 information from Lance Wilson? 16 A. I'm - well, I don't know the precise date, but I would 17 have asked my lawyers to make sure that everything was 18 correct. They no doubt would have made inquiries. They 19 would have probably obtained the group certificates from 20 Mr Wilson, that would be logical to ask him. I'm sure my 21 lawyers would have engaged with the Union to get all the 22 relevant paperwork to make sure that the incomplete 23 disclosure was resolved. 24 25 Q. But you told me that you'd known about this problem 26 for months and yet, you only have disclosed it on 6 July 27 2015. Why not try and get information from Mr Wilson a bit 28 earlier? 29 A. Well, I wanted to make sure we got the disclosure 30 right. We needed to make contact with the Union to see 31 what information they had. What I want to do is - this 32 disclosure wasn't complete the first time. I wanted to 33 make sure that when we finished this matter, it could be as 34 complete as it possibly could, and that's what we've done. 35 36 Q. Were you waiting to see whether this would emerge in 37 the Royal Commission? 38 A. Not at all. 39 40 Q. Well, you received the Royal Commission -- 41 A. Excuse me, excuse me, not at all. If I had known that 42 this hadn't - if I'd realised that this disclosure hadn't 43 been completed at the time or at any time since, I would 44 have made those inquiries at that point. But I also have 45 to say here, it is not unknown in the history of electoral 46 disclosures by political parties, for candidates and 47 members of Parliament to update their disclosures if they


1 realise information comes to light or hasn't been completed 2 properly. 3 4 Q. Well, I just want to point out one sequence of events, 5 Mr Shorten, for your comment. You have known about this 6 issue for months. On 6 July 2015, your team received 7 information about this from the Royal Commission and on the 8 very same day, you disclosed this matter to the Australian 9 Labor Party; is that just a coincidence, is it? 10 A. Mr Stoljar, I can just again say to you: this should 11 have been completely disclosed at the time. I take 12 ultimate responsibility for that. We've done it through 13 the Labor Party, we've updated the information. If I had 14 done this two or three weeks earlier, information which 15 might have subsequently come would have made this 16 incomplete, and, indeed, if I had had the opportunity to 17 see the papers which you presented today and no time 18 earlier, I would have realised that in fact Unibilt didn't 19 fulfil those last couple of invoices, as you've informed me 20 today. 21 22 Q. Well, that's not quite right, is it, because you had 23 those on 6 July as well? 24 A. I'm not sure that's correct. I'd have to go back and 25 check. I don't believe I did. 26 27 Q. Well, please do and if that needs to be corrected, it 28 can be, but that's the position. Now, going back to my 29 question, were you waiting to see whether this would emerge 30 in the Royal Commission before you made this disclosure to 31 the ALP? 32 A. Not at all. 33 34 Q. Do you say it was just a coincidence? 35 A. I'm answering your question. 36 37 Q. I'm not sure that you are, Mr Shorten, because I asked 38 you whether it was a coincidence and you gave a long answer 39 which didn't include whether it was or it wasn't? 40 A. It's not a coincidence. What happened is that an 41 incomplete disclosure was made, but I have to say - and 42 again, as I've said earlier, but I think it's important 43 re-stressing, the company knew that they were paying for 44 someone to work on my campaign. The Union knew that 45 someone was being paid to work on my campaign. I certainly 46 knew it and, indeed, anyone working on the campaign was 47 aware that Mr Wilson was working as the campaign director,


1 so this was not - it was not - in any fashion, anything 2 other than a well-known fact but it should have been 3 disclosed. 4 5 Q. And you say -- 6 A. And as I have demonstrated with the information that 7 I've provided to you, as I have demonstrated, it was 8 omitted, it was an incomplete disclosure by one of my staff 9 and we've now rectified it. 10 11 Q. You say it is a well-known matter and the company must 12 have known. The job contract we've looked at described 13 Mr Wilson as a research officer; correct? 14 A. Yes. 15 16 Q. And the invoices from the AWU suggested that he was 17 working for the AWU in providing services to Unibilt; 18 correct? 19 A. That suggests he was working for the AWU, but I think 20 what it all suggests -- 21 22 Q. Neither of those documents or categories of documents, 23 I suggest to you, are truthful or accurate, are they? 24 A. Mr Stoljar -- 25 26 Q. Do you accept that? 27 A. Mr Stoljar, the company knew they were paying for 28 someone to work on my campaign. 29 30 Q. Do you accept that? 31 A. The Union knew that someone was being paid to work on 32 my campaign and I certainly knew it and this fellow worked 33 on my campaign. 34 35 Q. What about the auditors or persons looking at the 36 records of either Unibilt or the trade union in due course, 37 they wouldn't know it, would they, from reading the 38 documents? 39 A. I can't speak for the auditors of Unibilt, be it 40 Unibilt with an I or a U, or any other spelling of that 41 company or any of that gentleman's companies, but in terms 42 of the audit completed by the Union, you will have to ask 43 the auditor, but a union's finances get audited, income 44 gets audited, expenditure gets audited and I might also 45 just say for the record, the Australian Workers Union was 46 very committed to political campaigning in 2007 to get rid 47 of the existing government because they didn't like the


1 Work Choice laws which were in place and there was no 2 secret that I was part of that campaign, working with the 3 AWU, the ALP and the ACTU; this was not an unknown fact. 4 5 Q. Did you obtain the authority or approval of the 6 members of the AWU to enter into these arrangements? 7 A. To look for the authority of the Secretary, that is, 8 the National Secretary, you refer to the rules of the Union 9 and as National Secretary I had authority to make these 10 sort of decisions. In terms of the then State Secretary, 11 you'd have to ask him but, again, under the rules of the 12 AWU, there is an authority for the Secretary of the Union 13 to advance the interests and the objectives of the 14 organisation, one of which is to support the election and 15 re-election of Labor and the promotion of labour laws which 16 are positive and beneficial and leave workers better off. 17 18 Q. So is the answer to my question you did not obtain the 19 authority or approval of the members of the AWU to enter 20 into these arrangements because you didn't think you needed 21 to? 22 A. No, my answer, in fact, is that the Secretary of the 23 Union has the authority to commit resources to political 24 campaigning. 25 26 Q. You see, the members, if they wished to examine the 27 records of the AWU, wouldn't know from those records that 28 all this had been done because the records aren't either 29 truthful or accurate, that's right, isn't it? 30 A. No, I don't accept what you're saying at all there. 31 32 Q. Don't you? 33 A. In terms of what the members were able to understand, 34 there were frequent discussions at committees of 35 management. I can't speak for the Victorian Committee of 36 Management once I was no longer Secretary, but at the 37 National Executive of the Union there were frequent 38 discussions about how to deal with the Work Choice laws and 39 the importance of political action against the existing 40 Work Choice laws. 41 42 Q. Could you have a look at the second document contained 43 within Shorten MFI-7? That is the Financial Disclosure 44 Annual Return for 30 June 2008. 45 A. Yes. 46 47 Q. That is a document which Mr Wilson filled in - is that


1 your evidence? 2 A. I might just look at each page and confirm that. I 3 believe that's his signature, yes. He would have filled it 4 in. 5 6 Q. Did you check through the document before it was 7 submitted? 8 A. I'm not sure I would have. It would have been sent by 9 my campaign director to the ALP office. 10 11 Q. When you say you're not sure, did you or didn't you? 12 A. No, I don't - no, I don't think so. 13 14 Q. What instructions did you give to Mr Wilson before he 15 finalised this document? 16 A. I would have left my staff to work out the appropriate 17 forms to be filled in. I wouldn't have sat down and worked 18 through each form with them. 19 20 Q. Did you say to him, "Make sure you disclose the 21 services received from Unibilt"? 22 A. I wouldn't have gone through each line item of my 23 campaign. You know, I accept ultimate responsibility, but 24 I wouldn't have been filling in each line of this and you 25 can tell by the handwriting I wasn't. 26 27 Q. No, but my question was did you say to him, "Make sure 28 that you put in, you disclose to the ALP the donations 29 received from Unibilt and the AWU"?? 30 A. I would have expected that he would fill the form in 31 correctly and if he wasn't sure about something, to ask the 32 questions. I wouldn't have sat down with him and 33 supervised and cross-checked every proposition. I mean, to 34 be honest and straight here, the guy was employed by 35 Unibilt. If he had thought it was relevant to put in, 36 I suspect he would have put it in, but you'd have to ask 37 what the intention was. I didn't supervise this document. 38 39 Q. Why was this document only submitted in 2009, 40 August 2009? 41 A. I can only assume that, if you look at it - I'll take 42 you to - I don't know what page numbering you have, but it 43 would be page 6 on this document. 44 45 Q. Yes. 46 A. That it came to the attention of the campaign that 47 Village and the National Office had made contributions and


1 they hadn't been previously disclosed, so this was 2 a subsequent updating of an incomplete disclosure. So 3 that's why I imagine it's in '09 as opposed to '08. 4 5 Q. Were you involved in those discussions? 6 A. No, I don't think so, but I'm glad that someone 7 pointed out there had been - someone had looked and said 8 there'd been an incomplete disclosure and we updated it. 9 This demonstrates, Mr Stoljar, that where we discover that 10 there's an incomplete disclosure, we were happy to put it 11 in. You've made much of the coincidence or the timing of 12 the most recent one. In 2009 there was no 13 Royal Commission, but when we realised that an incomplete 14 disclosure had been made, we updated it. This is what 15 happens. 16 17 Q. Can you go back and have a look at a document that was 18 marked Shorten MFI-4. That is your Candidate Return for 19 24 November 2007. 20 A. Yes. 21 22 Q. Looking at the second page of that document, it reads: 23 24 Total of gifts or donations received 25 26 And someone has written "Nil", and you have signed off on 27 that, on the first page, and it says that a gift or 28 donation may be, among other things, "the value of free 29 goods ands services", that is in B. Shouldn't you have 30 disclosed there and then, in this Candidate's Return, the 31 fact that these services had been received by you for the 32 purposes of your campaign? 33 A. I think I said before lunch - but I'm happy to repeat 34 it again - this is the individual candidate's return which 35 we are advised by the party to put in your nil disclosure 36 for and campaign donations are advised to the ALP and they 37 put in an omnibus disclosure. And I acknowledge that we 38 made an incomplete disclosure in terms of the omnibus 39 document, but it is not unusual for members of Parliament 40 on both side of politics to file these individual candidate 41 returns and then give all the information to the head 42 office of the political party for them to send in the 43 information. 44 45 Q. I am just trying to understand your proposition. Is 46 your proposition that you didn't receive the services, the 47 ALP did; is that the proposition?


1 A. No, the proposition - I beg your pardon, I didn't mean 2 to speak. Has that question finished? 3 4 Q. Yes. 5 A. Yes. We were advised by our party - and I understand 6 it is the same for the Liberal Party, but obviously I'm not 7 as cognisant of their practices - that you file a nil 8 return for the individual candidate return, which is this 9 document that you have on the screen, and then what we do 10 is we have this other document which has been provided to 11 you, Financial Disclosure Annual Return. That is where you 12 list your matters which are above $10,500, and you advise 13 the Labor Party. It has come to my attention that it was 14 an incomplete disclosure and, in fact, what we've also 15 provided the Commission is one example of an update, that 16 is, the 2009 date you are referring to, which shows that 17 when we realised that there is an incomplete disclosure, 18 you update it and that's what we've done again on this 19 case. 20 21 Q. What is this advice to which you make reference? Is 22 that written advice? 23 A. I'd have to go and have a look for it, but that's, 24 I understand, the practice. 25 26 Q. So there should be some document issued by the ALP 27 that gives instructions on how to complete a candidate's 28 return? 29 A. Well, I'd have to go and look at the documents. Yes, 30 I assume that, but if it's of assistance to the Commission, 31 as I understand, Mr Abbott has filed a nil return for 32 a number of elections. That does not mean, I don't think, 33 that there have been no donations to his campaign or, 34 indeed, that he hasn't helped raise a whole lot of 35 resources. It's done through the party. As I say, I put 36 the caveat - I'm not privy to how the Liberal Party raises 37 money, but this is the practice that the Labor Party has. 38 39 Q. One can understand that to some extent in 40 a circumstance in which a cheque is paid in to a particular 41 account, but that is the practice which is adopted even 42 where services are provided, is it? 43 A. Yes. 44 45 Q. Have there been any other circumstances in which 46 candidates for parliamentary office have received services, 47 to your knowledge, from the AWU, persons at the AWU for the


1 purposes of their campaigns? 2 A. I'm sure over time - and I'd have to go back and look 3 at the Union's books, I can't speak for my time since 4 I left the Union, but going back a number of years there 5 would have been donations to candidates or support for the 6 Labor Party, yes. 7 8 Q. I'm not really talking about monetary donations which 9 are a matter of public record. I'm talking about 10 circumstances in which Union officials work on candidates' 11 campaigns. Is that a common practice? 12 A. I'm sure it has happened. I must say, though, that 13 Union officials spend most of their time directly in 14 industrial matters of the Union, but when there are 15 political campaigns, the Union will commit resources. The 16 fact of the matter is that you can't solve every matter of 17 workplace relations at the work site. Unions were created 18 to campaign and periodically there will be a time when they 19 commit political resources. I don't think this is unusual. 20 21 Q. Are you personally aware of other circumstances in 22 which that has occurred? 23 A. In terms of Union commitment of people to political 24 campaigns? 25 26 Q. I'm talking about Union officers actually working in 27 campaign offices. I am just talking about the AWU, while 28 you were there? 29 A. So you're asking me just - I'm aware of unions 30 contributing people and I'm sure the AWU has too. 31 32 Q. Yes. 33 A. If you're asking me to go to a particular seat or 34 a particular candidate or a particular election, I'd have 35 to refresh my recollection, but I'm sure that's happened. 36 I have to say, I mean, the rest of the union movement can 37 speak for themselves, but I make this point: I have no 38 doubt that unions contribute staff to campaign for union 39 aligned goals and that would well involve helping campaign 40 for Labor candidates. 41 42 Q. What is the practice in regard to disclosure of that 43 donation, do you know? 44 A. I'd have to go and see what every union does. I am 45 sure some have disclosed it and I'm sure others have 46 probably not disclosed it and should have disclosed it, 47 I don't know.


1 2 Q. Are you aware of any other circumstance in which an 3 employer has paid for a campaign officer - I mean 4 personally aware, that is, from campaigns that you have 5 been associated with - in the way that Lance Wilson was 6 paid for by Unibilt? 7 A. I don't know the finances of everyone else's campaign, 8 but I'm sure -- 9 10 Q. I am asking about your personal awareness. 11 A. Well, my answer is I don't know, but I am sure that 12 companies have contributed resources in dollars or in kind, 13 in politics, to both sides of politics and I'm sure unions 14 have done that too. 15 16 Q. Could you come back to Cleanevent. I was showing you 17 comparison documents which the AWU had prepared. You made 18 the point to me that the 2006 Agreement was being compared 19 to the Modern Award, ie, the 2010 Award in 2015. Can I 20 show you a comparison document in similar terms which 21 compares the 2006 Agreement with the Cleaning Award 1999. 22 A. Could you give me a page or a volume reference? 23 24 Q. Yes, I am just going to give it to you. 25 26 THE COMMISSIONER: Q. Mr Shorten, during this pause, if 27 at any stage you feel you need a short break, it is a long 28 day, you're in a difficult position, obviously, including 29 the fatigue of being a witness, just say so. 30 A. All right. Thank you. 31 32 MR STOLJAR: Q. Do you still have volume 2 of MFI-5 33 there? 34 A. That's the Cleanevent bundle? 35 36 Q. Yes. 37 A. Yes. 38 39 Q. If you have a look at page 191, that is the comparison 40 of the Modern Award and the 2006 Agreement that I asked you 41 some questions about. 42 A. Sorry, what page number? 43 44 Q. Page 191. 45 A. 191. Okay. Yes, that's right. 46 47 Q. The document I have just shown you is a document that


1 has been prepared in the same way, but it compares the 2006 2 Agreement with the '99 Award, which was the Award in force 3 in 2006? 4 A. Oh, okay. Is that document in there or is that just 5 the one you handed me? 6 7 Q. The one I just handed you. 8 A. So it's not in these bundles? Okay. 9 10 MR STOLJAR: Commissioner, I would ask that this 11 comparison of Cleaning Award 1999 and 2006 Agreement be 12 received into evidence. 13 14 THE COMMISSIONER: Yes. What is its provenance? 15 16 MR STOLJAR: It is a summary document prepared by staff at 17 the Commission. The underlying documents are in the bundle 18 that is now MFI-5. 19 20 THE COMMISSIONER: Namely, the Award and the 21 2006 Agreement. 22 23 MR STOLJAR: Yes. 24 25 THE COMMISSIONER: That document will be Shorten MFI-8. 26 27 SHORTEN MFI-8 - SUMMARY DOCUMENT BEING COMPARISON OF 28 CLEANING AWARD 1999 AND 2006 AGREEMENT 29 30 MR STOLJAR: Q. If one does the same process, 31 Mr Shorten, and I'll focus on casuals, if you come to the 32 third page of that bundle, which has now been marked MFI-8, 33 the box at the top gives the public holiday rates for 34 casuals under the Award, 36, 36, 38, 66 for Level 2 and 35 then if you come down the page, the event rates, let's 36 focus on that, for casual employees are 16.28 for Level 1 37 and 17.44 for Level 2. 38 A. Yes. 39 40 Q. Do you see that? 41 A. Yes, I see that. 42 43 Q. It follows, doesn't it, that the same propositions 44 that we were looking at and which were advanced by the AWU 45 in respect of the 2015 agreement, sorry, in respect of the 46 agreement in 2015, apply to the agreement as it was in 47 December 2006; correct?


1 A. I'd like you to just repeat that question. 2 3 Q. Yes. We went through the points that were made in 4 respect of the 2006 Agreement in June 2015 and my 5 proposition to you is that when one looks at this table, 6 one can make exactly the same points about the agreement, 7 the 2006 Agreement, as compared to the Award in 1999; do 8 you agree with that? 9 A. Not quite, no, I don't. 10 11 Q. Can I put this to you. This -- 12 A. This may explain why I don't quite agree with you. 13 14 Q. Why don't I put some propositions to you and you 15 can -- 16 17 THE COMMISSIONER: Actually, Mr Stoljar, although the form 18 of the answer perhaps doesn't quite suggest it, he's really 19 saying, I think, "I can't answer yes or no. I wish to 20 qualify." Would you like to, subject to Mr Stoljar 21 objecting, continue? 22 23 MR STOLJAR: Q. In what way would you like to qualify 24 your answer? 25 A. I wouldn't mind seeing the whole Award that you are 26 quoting from, the Cleaning Award. I am interested to see 27 if its scope included racetracks and showgrounds. I'm not 28 saying it doesn't but there's a range of Cleaning Awards 29 and there's also different Cleaning Award payments 30 depending on the industry sector: retail, for instance, is 31 different to contract cleaning, which is different to event 32 cleaning, or sportsgrounds. So that's not an argument 33 against what you're saying but I'd just like to understand 34 the scope. I think also going to the issue where you're 35 saying this is the same as the 2015 arrangement, it isn't. 36 37 Q. No. 38 A. By that - this is where I'm saying "no" to you. The 39 2015 arrangement, which has been the cause of the Union 40 seeking to undo the 2006 Agreement, it is a perfectly 41 legitimate application by the Union. The 2006 Agreement, 42 as I can see on its face, was never designed to last nine 43 years. Also, the 2006 Agreement was negotiated and voted 44 on well before the new Award came into place in 2010. Now, 45 what the Union did after I left, or how they responded to 46 2010, is not a matter over which I have any control. What 47 I do understand, though, about the 2006 Agreement - and


1 this comes to the third point I wanted to make, other than 2 scope and the issue of measuring something which happened 3 nine years ago against a set of payments now - is this 4 issue of the assumption implicit in your question, that if 5 you and I, in 2004 or 2005, were to go out to a fairground 6 or a dog track or a racetrack and find everyone there 7 receiving double time and a half plus a casual loading, to 8 me is fanciful in the real world. So what this is doing is 9 you're saying that theoretically, in a perfect world, 10 someone could get a certain rate. The truth of the matter 11 is in event cleaning that there's pyramid subcontracting. 12 This is an issue which I and plenty of others have had 13 plenty to say about in the past. Pyramid subcontracting, 14 Commissioner, is you might have a name plate company at the 15 top doing the contract to clean a venue, but then they 16 might subcontract to someone else who then might 17 subcontract to a group of, you know, kids on student visas 18 from another country and in the real world - in the real 19 world - a lot of people working at the lower levels of 20 these industries are not getting paid $40 an hour. They're 21 lucky to make sure they get pay slips and superannuation. 22 So whilst I understand the theoretical comparison you are 23 making, I'd also submit that it would be great - it would 24 be great if everyone was getting the Rolls Royce rates 25 which you are asserting, but I have to say in the real 26 world that evidence isn't there. Further -- 27 28 Q. Can I just ask you -- 29 A. Sorry, there was one more point because what you are 30 saying is a very important here. When you look at the 31 history of the Cleanevent agreements, from 1999 to 2007, 32 there was 24 per cent in pay rises in agreements, 33 24 per cent, including 10 per cent superannuation. In my 34 experience, Mr Stoljar, cleaners don't get 10 per cent 35 superannuation. I see the point you're making, that you 36 compare one rate and the other and you say one looks less 37 than the other, but when you line it up with what's really 38 happening out there a decade and a decade and a half ago, 39 I think these members voted an agreement which they felt 40 was the best that they could do in the circumstances. 41 42 Q. There were quite a number of propositions in that, but 43 can I endeavour to extract two of them. The first is you 44 accept the proposition that under the Award, as at 45 December 2006, so under the 1999 Award, casual employees 46 should have been paid, for example, double time and a half 47 under - sort of for public holiday or double time for


1 Sunday and the like, you accept that proposition? 2 A. No, because the Cleanevent Award was derived from the 3 Sportsground Maintenance Award and that's how come the AWU 4 had coverage of this work and I know this may seem a little 5 arcane, Union coverage, but unions are keen to organise 6 workers and in the Sportsground Maintenance Award, to the 7 best of my recollection, casuals didn't get penalty on 8 penalty, so the proposition that they were receiving up 9 till this agreement 270 per cent for working, I'm just not 10 sure reflects the reality of the industrial instruments or, 11 indeed, what was happening. 12 13 Q. That's the second proposition I wanted to ask you 14 about. 15 A. Mmm. 16 17 Q. Your second proposition is whatever the award said, 18 people were not being paid the award rates, is that what 19 you say? You are saying the truth of the matter is on the 20 ground, whatever might have been negotiated in an award, 21 people weren't getting it? 22 A. I am saying that there are some employers who are 23 sufficiently unscrupulous that they will pyramid 24 subcontract, they will not pay the proper rates and in some 25 cases they will be taking advantage of the people working 26 for them; I am saying that. 27 28 Q. It's the case, isn't it, that awards are the minimum 29 rates and conditions that have been carefully determined 30 for the cleaning services industry? 31 A. Again, I know this may seem a point of industrial 32 relations stylism, but, in fact, the Cleaning Services 33 Award may or may not have applied at some of the venues 34 which Cleanevent was working at, but certainly the 35 Sportsground Maintenance Award did and there was 36 a Cleanevent Award done which, in fact, the LHMU were party 37 to, too, I think back in the '90s, although that was before 38 my time, so it is important to understand - when you are 39 going to critique my EBA or critique the EBA done by the 40 AWU in 2006, that we actually used the right parent 41 documents and we put it up in the context of what's really 42 happening out there. 43 44 Q. Where the Cleaning Services Award applied, it 45 contemplated double time and a half for public holidays? 46 A. Clearly; it's there. 47


1 Q. And you accept the proposition, don't you, that the 2 award system sets out the minimum rates and conditions that 3 have been carefully determined for the cleaning services 4 industry? 5 A. For that industry, yes. 6 7 Q. And, what, do you say that if it turns out that there 8 are people out there who ignore the awards, one solution to 9 that problem is to just negotiate an EBA which doesn't 10 include those protections; is that really your evidence? 11 A. Not at all, that's not what I'm saying. I think if 12 you're breaking employment conditions, you should be 13 prosecuted. I think, you know, that's a very important 14 role, but in addition what I say is that in this industry 15 I'm keen - and I was keen for the regulars working at 16 Cleanevent and I know my organisers were and I was keen for 17 the permanent casuals to be able to get hours and hours of 18 work which is well remunerated. Now, I understand that the 19 Commission's gone to some great, you know, work to examine 20 the awards, to see if a particular clause in an agreement 21 does or doesn't satisfy another clause in another award, 22 and, you know, that's entirely the prerogative of your 23 researchers, Mr Stoljar, to do, but when we look at this 24 enterprise agreement and when we look at the preceding 25 enterprise agreements, what we have is low paid workers who 26 are receiving regular pay rises - regular pay rises. What 27 we also see is that the people who are just working at 28 events, they were getting an all-up rate, they were getting 29 an all-up rate, and they were getting the work which they 30 were seeking to do. But what I also know is that the 31 people who work in this industry, they work pay packet to 32 pay packet, as I think I said a bit earlier today, and 33 quite often by the time the pay goes into their bank 34 account, the bills and the debts they've got have eaten up 35 most of it. My aim, always, in any EBA was to try and 36 provide more work and more regular remuneration so people 37 could have certainty of an income. Once you've got regular 38 income then you can get a car loan, then you can even dream 39 of getting a house loan. 40 41 Q. Did you have any discussion with Cleanevent during the 42 negotiation of the 2006 EBA about Cleanevent making 43 a donation to the AWU? 44 A. Do you mean in terms of an election donation or -- 45 46 Q. Some sort of donation. 47 A. There was one discussion.


1 2 Q. Yes. When was that? 3 A. Oh, I don't know exactly when, but I can take you to 4 it, what you're asking me about. Cleanevent was a national 5 business. We'd looked at having, to the best of my 6 recollection, one organiser, so you'd have different 7 individuals, as I think I said in evidence this morning; 8 you know, someone from the Queensland Branch can visit the 9 Queensland venue of work, someone from the Sydney branch, 10 the Sydney venue and in Melbourne, Melbourne venues. Quite 11 often it is useful to have a single point of contact for 12 resolving issues. What we raised or what - Cleanevent 13 might have said, "We want one organiser", we might have 14 raised having one organiser. What we might have asked 15 Cleanevent for is to assist with the airline costs and 16 duties out of the ordinary to service a national agreement. 17 There's plenty of precedent across the union movement that 18 you might ask the company, whose workers you're organising, 19 to help pay the transportation costs. I know, for 20 instance, in a related analogy that when we visit a mine 21 site or an oil rig, the Union did not pay for the 22 helicopter fare or the airfare, we would ask the Union to 23 do it. That would have been the basis of a discussion with 24 Cleanevent. 25 26 Q. You said in your answer at line 16, "... the Union did 27 not pay for the helicopter fare or the airfare." Did you 28 mean the employer did not pay for the helicopter fare or 29 the airfare? 30 A. No, I meant the Union didn't pay. I have to say that 31 there's been a - again, I'm not trying to be - no-one 32 should impute any sinister motives, but to be honest, if 33 you can get Esso to pay for you to fly out to the rig, 34 well, you would probably ask, as the Union, to do that. 35 And if Cleanevent - and I don't know if it ever transpired 36 after I left - was to have a National organiser, we weren't 37 asking them to pay for the wage of the organiser to do the 38 national EBA, but if you've got to fly to deal with 39 a particular issue and you want to bring the specialists 40 from your organisation in, then that would have been 41 possible. 42 43 Q. How much was the donation going to be? 44 A. Mr Stoljar, I don't know. It would - whatever half 45 a dozen flights might have been. I don't know. 46 47 Q. Who was present when you had this discussion?


1 A. I'm not saying I haven't had the discussion. What I'm 2 saying is you asked about a donation. There's a reference 3 in an email from an organiser to the company, but I'm 4 explaining the practice. 5 6 Q. Was the donation made? 7 A. I don't know. I don't recall it being so. There's 8 plenty of discussions you have which never seen fruition. 9 You have an idea and sometimes companies agree and 10 sometimes they don't. 11 12 Q. Can I ask you to have a look at volume 1 of the 13 Cleanevent materials and go to page 349. You should be 14 looking at a letter to you of 6 March 2002 from Mr Lovett 15 talking about paid education leave. Was that something you 16 were propounding at about this time? 17 A. Paid education leave was a concept which I and others 18 in the union movement were interested in at this time. To 19 take the story back in the context of paid education leave, 20 which you've asked if I'm propounding, or if I was 21 propounding it then, back in about 1975 Prime Minister 22 Whitlam set up the Trade Union Training Authority. This 23 was the idea that if you trained union delegates and 24 members, you could create more productive industrial 25 relations. Then we go forward to 1996. The then Prime 26 Minister Howard scrapped TUTA, closed the funding, finished 27 it off. So the unions - of course, this is at the same 28 time, as I've mentioned earlier today, the unions were 29 doing more and more enterprise bargaining - have got double 30 the pressure to start educating and training workforce and 31 delegates. Also, overseas unions have been looking at 32 different ways in which they qualitatively add to workplace 33 relations to ensure their members are better off, and all 34 of those factors - and this is the final sort of preamble 35 to paid education leave - is I have a personal conviction 36 that the future of workplace relations is all about having 37 better educated and skilled workforce and management 38 relations. Without taking too much of the Commission's 39 time, there is one view of industrial relations which says 40 employer wins or employee wins and that the twain can never 41 meet. My view is that to secure job security and good 42 remuneration for employees, you need profitable and 43 competitive companies, they have to be sustainable. The 44 best way you create sustainable companies, which is 45 therefore in the best interests of their employees, is you 46 improve productivity, or, put more bluntly, it's when you 47 can try and find a win/win in industrial relations; so


1 I was very committed. We had the pressures of the cuts to 2 funding by the then government. You have enterprise 3 bargaining requiring more work at the enterprise level and 4 my own personal view and you have international trends, so 5 we pushed towards how do we subsidise and support more 6 education and training for workers? Now, there's a range 7 of ways you can do it and one concept that we were working 8 at the time was called paid education leave. It was the 9 idea of a levy, a paid education levy, which would be 10 provided by the company, some small per capita nominal 11 amount which could be used for the training of employees 12 and workers to improve the quality of workplace relations. 13 14 Q. Did Cleanevent ever pay such a levy? 15 A. I don't know. I'm not sure they were as convinced by 16 my logic as I was. 17 18 Q. Could you go to page 350. If you need to glance 19 through the email by all means do, but negotiations are on 20 foot in respect of what ultimately became the 2004 EBA; is 21 that right? 22 A. I'll just read it. I've just read it and a couple of 23 the pages behind it. What was the question, Mr Stoljar? 24 25 Q. Negotiations are now on foot in respect of what became 26 the 2004 EBA? 27 A. Well, that would - whilst I don't particularly, you 28 know, recollect the whole document, yes, that would be 29 consistent in timing. 30 31 Q. Peter Smoljko was the organiser for Cleanevent at this 32 time? 33 A. Yes. 34 35 Q. There's quite a large number of emails which I won't 36 go through with you in detail, Mr Shorten. 37 A. Sorry, I actually missed that. Did you want to go 38 through them or not? 39 40 Q. No, I'm saying I won't take you through them in 41 detail. You had, through this period, discussions, 42 meetings and the like, with Mr Lovett and Mr Smoljko about 43 the 2004 EBA? 44 A. I probably would have had some, but I also - my 45 organiser might have had other discussions. I don't have a 46 diary of how many meetings. 47


1 Q. For example, on page 356 there is a reference made to 2 a meeting, in the bottom paragraph, on Tuesday, 18 March. 3 A. Yes. 4 5 Q. With Mr Smoljko and yourself. The document is headed, 6 "Enterprise Agreement Negotiation". I take it you accept 7 the proposition that a meeting took place and you were 8 discussing the new enterprise agreement? 9 A. Yes. It says: 10 11 Agreed as per our meeting on Tuesday, 12 18th March with ... Bill Shorten. 13 14 And he goes on to write: 15 16 It is our firm belief that a Cleanevent 17 rate of $17.44 for new entrants is well 18 above that of similar deployment within our 19 industry. 20 21 I just make the point that that reinforces what the company 22 was saying to us all along, in that paragraph you've drawn 23 to my attention, that, you know, you were quoting the 24 earlier double time and a half gold standard rate. A lot 25 of the information we were receiving, albeit it was from 26 the company, was that it just wasn't happening. 27 28 Q. What you refer to disparaging as the gold standard 29 rate is the award rate? 30 A. No, I wasn't being disparaging. I just wish employers 31 were paying it. 32 33 Q. In any event, page 358, a letter to you of 10 March 34 2004. I think rather than take you through the detail of 35 these materials, Mr Shorten, I'll bring you directly to 36 page 361. If you need to skim over them to put yourself in 37 context, by all means do so. 38 A. All right, I'll do that. Thank you. Okay, I've read 39 that. Now we're up to page 361, did you say? 40 41 Q. Yes. All I wanted to do was draw your attention to 42 the material on page 2 of that letter. The rates of pay 43 then being proposed by Cleanevent are those set out in 44 paragraphs 8.1 through to 8.4, and I think in fairness to 45 you on page 363, the third-last paragraph is Cleanevent 46 propounding the proposition that I think you have been 47 adverting to. They say:


1 2 Are you able to provide hard evidence of 3 actual cases where the rates you are 4 claiming are actually paid? 5 6 Is that really the point that you have been making, namely, 7 that you say that people weren't in fact paying the award 8 rate? 9 A. That was certainly the view the company put very 10 strongly, and also when our members voted on these 11 agreements, cleaners talk to cleaners, people work at the 12 races might end up working at the dog track down the track, 13 so the members - and that's I think the other point to make 14 here. In the agreements which I oversaw, members voted. 15 16 Q. Can I take you through to page 369 and if you need to 17 read materials leading up to that, by all means do so. 18 I just want to ask you about this letter. It is from 19 Mr Beard to Mr McNab at Cleanevent. 20 A. Sorry, which page are you on? 21 22 Q. Page 369. 23 A. How far down did you want me to read, how many pages? 24 25 Q. Are you on page 369? 26 A. I'm up to page 370. Sorry. 27 28 Q. Page 369 is a letter from Mr Beard who is the National 29 Industrial Officer to Mr McNab, and he says: 30 31 I understand, from your telephone 32 message ... 33 34 Et cetera. And then the paragraph I want to draw your 35 attention to: 36 37 I have discussed the issue with 38 Jo-anne Scofield and we believe that the 39 rate - 40 41 -- which is $17.44 per hour -- 42 43 - does not properly represent an 44 appropriate 'all-up' rate for casuals 45 engaged at events. Events are usually 46 active over weekends and can also include 47 public holidays, eg. Sydney Royal Easter


1 Show. 2 3 Your rate does not provide adequate 4 compensation for these matters. Currently, 5 under the award with the Safety Net 6 Review May 2003, a level I employee would 7 receive $31.30 per hour for work performed 8 on a public holiday. This rate will 9 increase with the SNR May 2004 decision to 10 be handed down in the very near future. 11 12 At this point, 3 May 2004, the AWU, through Mr Beard, was 13 on all fours with Ms Schofield, who is LHMU, in suggesting 14 that the rate wasn't sufficient - the rate that Cleanevent 15 was proposing wasn't sufficient because of the problem 16 about weekends and public holidays; is that right? 17 A. I've got no doubt that my officials were always 18 pushing for the best deal possible. 19 20 Commissioner, if it's all right, going an hour, maybe 21 if I could have a five-minute break? I'll be as brief as 22 I can. 23 24 THE COMMISSIONER: The hearing will resume in five minutes 25 time. 26 27 SHORT ADJOURNMENT 28 29 THE COMMISSIONER: Yes, Mr Stoljar? 30 31 MR STOLJAR: Q. Mr Shorten, I was showing you the 32 document at page 369 which is a letter of 3 May 2004. We 33 have just seen that Mr Beard and, at that stage, the LHMU 34 were saying, in effect, that there needed to be a better 35 rate for casuals engaged at events, and pointing out what 36 they would get under the award. The response to that came 37 a week later, at page 374. Essentially, Cleanevent 38 rejected that proposition. Negotiations then continue, and 39 I'm not going to take you through every document, but if 40 you need to glance through them in order to get the 41 context, please do. If you come to page 381, this is an 42 email from Mr Dalla Costa to Mr Beard of 21 May 2004. He 43 attaches some analysis. This deals with an employee who 44 works at venues and also events. But in the final 45 paragraph, he says: 46 47 Out of interest, I recently received the


1 certified agreement with the Melbourne & 2 Olympic Parks Trust. Not sure how this 3 passed the no-disadvantage rule given 4 casual workers only work during the 5 Australian open which includes one public 6 holiday and 2 weekends. If you compare the 7 award rate with their agreement, the EBA 8 rate is substantially short. I'm not 9 saying the rate is right or wrong, however 10 according to my calculations the rate would 11 not have passed the no disadvantage 12 rule - so how did the parties get the 13 commission to agree? 14 15 Did Mr Beard tell you about that communication between 16 himself and Mr Dalla Costa? 17 A. This is the one on page 381? 18 19 Q. Yes. 20 A. No, I don't think so. That doesn't mean he didn't, 21 but I don't think so. 22 23 Q. That is a problem, though, isn't it? If you have 24 casual workers who are working mainly on the public 25 holidays and weekends and they're not getting the rates 26 under the awards, there's a problem with the EBA passing 27 the no-disadvantage test; correct? 28 A. Well, there's a couple of questions in that. First of 29 all, when you talk about the no-disadvantage test, this was 30 a test. In the legislation, it's one of the steps of 31 approval of an enterprise agreement. 32 33 Q. Yes. 34 A. You've got to have the members vote on it. That, to 35 me, is the most important test but then, of course, in 36 legislation, at least until John Howard introduced 37 WorkChoices, there was a no-disadvantage test. An 38 independent umpire would assess the agreement, you know, 39 better off overall, no disadvantage, these were the various 40 legal iterations of this test. So you wouldn't have an 41 agreement approved by the Commission which didn't pass the 42 no-disadvantage test, but that's why there was a check and 43 balance for the record; also, there would have to be 44 a vote. In terms of this particular correspondence, you 45 know, I don't know if Mr Beard showed it to me. Mr Beard 46 was, you know, doing some good work, pushing on the company 47 to try and get better conditions, as I would expect him to


1 do. 2 3 Q. Did you have discussions with Mr Beard or others at 4 the AWU about how to get the Cleanevent 2004 EBA to pass 5 the no-disadvantage test? 6 A. Our aim was always to have an agreement which our 7 members liked. Obviously it goes without saying we'd want 8 it to pass the no-disadvantage test. 9 10 Q. Well, how -- 11 A. But our priority, Mr Stoljar, wasn't quite as you put 12 it. It's not to pass some legal test, per se. 13 I understand that, you know, black letter law, that's one 14 important priority, and it is important - was important to 15 me and the Union, too. We wanted to have an agreement that 16 our members thought was fair and reasonable. That's what 17 would have been motivating us. 18 19 Q. Yes. I am sure that's the case, Mr Shorten, but the 20 fact is what is being debated in this correspondence is not 21 some generalised notion of what might be fair and 22 reasonable to the members. It is a specific problem, isn't 23 it? The problem is that which we have just looked at on 24 page 369, that the rate that is being proposed doesn't 25 match what's in the award. Page 374, Cleanevent knocks 26 that back. Page 381, Cleanevent raises this very problem, 27 "won't pass the no-disadvantage test so how do the parties 28 get the Commission to agree?" It's a very specific issue, 29 isn't it? Now, did you have discussions about that very 30 specific issue? 31 A. I don't remember if I had discussions with Mr Beard 32 and I don't think that is at all unusual. I had many 33 discussions with many of our officials over many years. In 34 terms of this, though, you quoted page 369, Mr Beard does 35 write on behalf of the AWU. He believed his proposal, 8.4, 36 was actually a fair and reasonable compromise. There are 37 those words, "fair and reasonable." The company, clearly 38 from the documents you have produced, was pushing back very 39 strongly against that. This was the nature of the 40 negotiation. We would seek one thing; the company would 41 put another position. 42 43 Q. Can you come through to page 393 and again, 44 Mr Shorten, I extend an open invitation. I don't want to 45 go through this page by page, it will take too long. I am 46 skipping chunks of correspondence in coming to the next 47 one, but if you want to skim through or read through, for


1 that matter, to put it all in context, please feel free to 2 do so. The next document I wanted to take you to is at 3 page 393. This is an internal memorandum of Cleanevent's, 4 so you may have only seen it for the first time when it was 5 supplied to your lawyers last week. The point I just want 6 to draw your attention to is this issue about the draft EBA 7 not passing the no-disadvantage test is adverted to on the 8 first page, "Fact 2". Again, my question is: do you 9 remember this being a feature of the discussions between 10 Cleanevent and the AWU at this time? 11 A. If I might just read this document. 12 13 Q. Yes. 14 A. It is important. And you're quite right, I first saw 15 this document a couple of days ago. 16 17 Q. Well, it was provided last Wednesday, I think, but in 18 any event -- 19 A. In very recent time. I have read again the document 20 at page 393 which you provided at the end of last week. 21 There's a few things about this document I'd like to go to. 22 23 Q. Can I just ask my question again: do you remember 24 whether, having looked at that document, now, whether this 25 issue about whether the draft EBA passed the 26 no-disadvantage test was a matter under discussion between 27 yourself or others at the AWU, on the one hand, and 28 Cleanevent representatives on the other? 29 A. I don't remember specifically if it was a matter which 30 I was discussing or involved in. But what I will say about 31 this document is I am quite frustrated, when I read this, 32 that I don't believe I was treated with the openness by 33 parts of the company with which I was treating them. There 34 are revelations in this document which I was unaware of 35 until late last week. I was unaware of the underpayment of 36 wages. Also, I have to say that my approach -- 37 38 Q. I'm sorry, Mr Shorten, and you will have the 39 opportunity to finish, but can you just point to the 40 paragraph in respect of which you say you're unaware? 41 A. If you go to "Step 3" on page 395 it says they want to 42 demonstrate that in providing backpay, they're moving 43 forward, they're bargaining in good faith, and there's 44 a number of references to underpayment. This comes as news 45 to me, and I don't like being taken advantage of. I'm not 46 saying this was the attitude of the whole company, but when 47 I read this late last week, I was quite frankly surprised.


1 This company had been in insolvency in 2001-2002 2 thereabouts, it had come out of that. My commitment was to 3 try and save jobs and keep people working, but, you know, 4 there's reference in this document that the company wanted 5 to initiate its own "wish list" and steamroll their views 6 wasn't the way which I believed the tenor of discussions 7 should be conducted. So, that's why I'm frustrated by this 8 document. 9 10 Q. Does that complete your answer, because I did 11 interrupt you? 12 A. Oh, no, that's okay. 13 14 Q. Coming back to my question, did you have discussions 15 specifically with Cleanevent about whether the agreement 16 passed the no-disadvantage test? 17 A. Again, I don't remember if I did. I'm sure my 18 officials would have if it was an issue. They were very 19 professional. 20 21 Q. Could you come to page 397. This was a letter from 22 the LHMU to Cleanevent of 1 November 2004. Read through 23 the opening part of the letter if you need to, but I was 24 going to direct your attention to the top of page 398. The 25 LHMU says: 26 27 Notwithstanding the clarifications sought 28 above, we do not believe that $19.17 is 29 adequate for a weekend rate. 30 31 It goes on to deal with that and then in the next dot 32 point, to discuss the need to clarify the weekend rate for 33 Monday to Friday casuals. So, LHMU were still pushing this 34 issue. Come then to page 403, LHMU write on 5 November 35 2004: 36 37 I have received your correspondence by 38 email today. 39 40 That is no doubt a response to the letter I just took you 41 to. 42 A. Sorry, which page are you on, Mr Stoljar? 43 44 Q. Page 403. 45 A. Sorry, you did say that. 46 47 Q. The second paragraph, you can read that for yourself.


1 But in short they say that there has been a muddying of the 2 waters "in suggesting that LHMU members may be paid under 3 the event rate of pay ... and only reinforces our 4 previously stated concerns." 5 6 And then at the bottom of that page: 7 8 We formally withdraw from any further 9 negotiations with Cleanevent on behalf of 10 LHMU members. 11 12 So they're off, LHMU, that's their position as at 13 5 November. If we come over to page 404, the next page, 14 this is another memorandum within Cleanevent, but the only 15 significance of it is that, in the fourth paragraph, they 16 say: 17 18 Cleanevent and the AWU must now work 19 towards finalising an Agreement without 20 another union present. A meeting is 21 planned between Craig Lovett and 22 Bill Shorten later this week to sign off an 23 AWU only Enterprise Agreement ... 24 25 The last position that had been expressed by Graeme Beard, 26 at page 369 that I showed you before, was that the event 27 rate was too low, it needed to match what was in the award. 28 LHMU have pulled out, but by 8 November 2004, it would seem 29 you have decided to go ahead with the EBA. So what 30 happened? 31 A. In terms of negotiations, I have no doubt that my 32 officials endeavoured to get the best deal possible. But 33 also what is the case here, to the best of my recollection, 34 is these employees had been without an agreement for two 35 years. I understand that the AWU officials were able to 36 secure pay rises outside of an enterprise agreement. In 37 other words, even though the process was taking a long 38 time, the arguments to and fro, the Union was able to 39 convince the company to give their workers a pay rise 40 without an agreement, which is quite unusual, because 41 normally in return for having a pay rise you have an 42 agreement which locks in arrangements for a period of time. 43 So, I think that the view would have formed, "Let's put it 44 to the members and see what they say." 45 46 At the end of the day, you put forward the best case 47 you can and, as I've said, I'm a little unimpressed by some


1 of the documents internal which I read last week about the 2 way the AWU was being treated. But having said that, we 3 put it to the members, and if the members decide that they 4 can live with that agreement or that is satisfactory, well, 5 that's what matters and then it gets taken to the 6 Industrial Relations Commission to assess all those matters 7 of disadvantage and, you know, is it an agreement which is 8 capable of certification. 9 10 Q. If you have a look at the second volume, we have the 11 agreement that begins on page 2. You signed off on it; 12 your signature appears on page 12. It was submitted to the 13 AIRC on 14 December 2004. By the way, when you signed off 14 on it, was that in your capacity as National Secretary or 15 State Secretary? 16 A. I'd have to check my records. 17 18 Q. Did the AWU recommend to its members that they vote in 19 favour of the EBA? 20 A. Again, I'd have to check. I noticed in that last 21 document from the previous volume that it gives the name of 22 five delegates in it. So I assume - and again I'm more 23 recollection by document than I am by my own 24 recollection - that the delegates would probably have been 25 recommending it, but I don't know that absolutely. 26 27 Q. You still have a problem, don't you, in that - well, 28 perhaps I will take this in steps. As you rightly say, the 29 agreement has to go to what you call the independent 30 umpire, being the AIRC? 31 A. Yes. 32 33 Q. The application for approval has to be supported by 34 various things, including stat decs? 35 A. The process was that you would have a vote of members. 36 There would be statutory declarations evaluating parts or 37 tests for the certification to go ahead. 38 39 Q. The two stat decs in support of this agreement are at 40 pages 14 and 19 respectively of volume 2. I'll take you to 41 page 19 which is Mr Winter's stat dec. 42 A. Yes. 43 44 Q. He was an industrial officer at the AWU at that time? 45 A. Yes. 46 47 Q. He reported to you, I take it?


1 A. Yes. 2 3 Q. If we go through his stat dec, this was submitted in 4 support of the agreement, it begins on page 19, "What is 5 the name of the employer, and the like. Page 20, further 6 details which I won't take you through, and perhaps we'll 7 come directly to page 22, Part 7: 8 9 7.1 Specify the relevant awards ... 10 11 And the 1999 company award has been adverted to. 7.2 is 12 left blank because it's not relevant. 13 A. Mmm-hmm. 14 15 Q. 7.3 says: 16 17 State whether certification would result, 18 on balance, in a reduction in the overall 19 terms and conditions of employment of 20 employees covered by the agreement ... 21 22 And it says: 23 24 Certification would not result in 25 a reduction in the overall terms and 26 conditions of employment. 27 28 Well, that's not right in respect of the casuals, is it? 29 A. This is a statutory declaration and I will just read 30 it again from page 19, but this is executed by a pretty 31 well regarded and seasoned industrial officer of the AWU, 32 Mr Craig Winter. If you're asking me would he have signed 33 something which is not correct, I can't agree with that. 34 But, once more, I'm not sure -- 35 36 Q. I'm not asking you to comment on the person who 37 executed this stat dec. I am just asking you whether you 38 agree with the proposition that certification would not 39 result in a reduction in the overall terms and conditions 40 of employment. The proposition I put to you was that, in 41 effect, certification would result in a reduction in the 42 overall terms and conditions of employment at least in 43 respect of event casuals? 44 A. Well, my practice as leader of the Union, when we had 45 enterprise agreements, is I would ask my organisers to 46 prepare a summary of the features. I would also ask one of 47 our industrial officers to survey the agreement and to give


1 me their opinion, and the statutory declaration reflects 2 their opinion. So you are asking me do I agree 3 about - does it reduce in an overall reduction in terms and 4 conditions of employment. To form that answer, I would 5 have relied upon the advice of my industrial officer and 6 the advice of my industrial officer then was that it did 7 not. I cannot say that I took the ruler over every 8 clause and every proposition. Whilst I am familiar with 9 the industry, familiar with plenty of the issues, if my 10 staff tell me that it doesn't, I have no reason to have a 11 second opinion. 12 13 Q. This report, was it in writing? 14 A. It's in front of me. 15 16 Q. No. 17 A. The stat dec. 18 19 Q. I thought you said -- 20 A. Oh, yes, sorry, I beg your pardon. What I would also 21 do is ask organisers to prepare summary reports for me as 22 a check and balance. When you are the Secretary of 23 a union - and whilst I was a very active Secretary, you 24 don't check every clause, you don't line up every pay rate, 25 you rely upon your staff to do it. But what I did is I'd 26 have several levels of testing, stress testing the 27 agreements, Mr Stoljar. I would have what was the view of 28 the members; what's the view of the organiser? What's the 29 view of the industrial officer or the person completing the 30 statutory declaration? And, upon that matrix, I would form 31 a view. 32 33 Q. Have a look at clause 7.4. Clause 7.3 deals with 34 reduction in the overall terms and conditions of 35 employment. 7.4 says: 36 37 To be answered only if there is any 38 reduction in the terms and conditions of 39 employees covered by the agreement under 40 any relevant or designated award or other 41 law but not resulting in a reduction in the 42 overall terms and conditions of employees. 43 44 Do you see that? 45 A. Yes. 46 47 Q. And then:


1 2 By referring to specific clauses in the 3 agreement, specify any such reductions. 4 5 Well, looking at this now, don't you accept that under the 6 2004 agreement, there was a reduction in the terms and 7 conditions of employees covered, at least event casuals, in 8 that they're not getting the penalty rates that they would 9 have got under the 1999 award? 10 A. All right. First of all, if I understand your 11 question, I've got no reason to disbelieve the statutory 12 declaration of one of my professional staff. Secondly, 13 members are capable of voting in their self-interest. But 14 also you've talked about the scope of the 1990 award - 1999 15 award. As I've said, I have to take on notice if that 16 would have even covered this company and I'm not sure it 17 would have. 18 19 Q. I thought you accepted the stat dec? 20 A. No, I accepted the stat dec, but I don't think that 21 the award referred to in the stat dec is the award which 22 you're asking me to compare it to. You asked me about the 23 1999 Cleaning Award. This is the AWU/LHMU Cleanevent 24 Pty Ltd Award of, I think, 19 - I don't know if it is 1999 25 but I'm happy to be corrected. 26 27 Q. Well, you accept, don't you, that under the relevant 28 award event casuals - yes, it is the same award. 29 A. Okay. 30 31 Q. That under that award - I think I called it at one 32 point the company award, but whether you call it the 33 company award or the 1999 award, or how it is described in 34 clause 7.1, under that award, event casuals were entitled 35 to penalty rates for public holiday and weekend work, among 36 other things? 37 A. Well, I don't believe that the organiser or the stat 38 dec, the person who prepared the statutory declaration, 39 would have overlooked such a matter. But furthermore -- 40 41 Q. Well, can you just answer my question first of all. 42 Let's just take it in small steps, Mr Shorten. Do you 43 accept the proposition that under the 1999 award, or the 44 company award, event casuals were entitled to penalty rates 45 for public holidays or weekends? 46 A. Perhaps we could go to that award and you could refer 47 me to that clause?


1 2 Q. Page 222. 3 A. Of volume 2 or volume 1? 4 5 Q. The same volume. 6 7 THE COMMISSIONER: That says 1995. 8 9 MR STOLJAR: I'm sorry? 10 11 THE COMMISSIONER: Page 222 of volume 1 seems to be an 12 incomplete page. The next page speaks of a 1995 award. 13 14 MR STOLJAR: I'll just have to look at the front of my 15 volume. It is volume 2, Commissioner. 16 17 Q. If I said volume 1, I meant volume 2 Mr Shorten. Do 18 you have that award? 19 A. Yes. That starts at page 222. 20 21 Q. Yes. Page 230 deals with Saturdays and Sundays and 22 public holidays is 14.9. Are we in agreement now, 23 Mr Shorten, that under the 1999 award, employees are 24 entitled to penalty rates and "employees" includes, as 25 I read the award, casuals? 26 A. No. 27 28 Q. No? Why is that? 29 A. Well, I'd have to go - we'd have to go back and ask 30 the company and look at the pay slips back then, but, in my 31 general experience, getting a penalty on a penalty for 32 a casual in this sort of industry is unusual. Now, I am 33 not saying you're wrong, but I can't agree because I am 34 not - I don't have all the facts about what was the 35 practice. The reason why they were getting a casual 36 loading would have been in lieu of certain conditions. So 37 we do need a little bit more information, but I don't 38 automatically accept the proposition. I mean, the logic of 39 what you are saying is - there's a lot of casuals in this 40 industry, it is a very casualised industry, you know, for 41 events. If they are all getting double time, or double 42 time and a half, as I said, I'm not sure that was the 43 actual practice, and, in this case, perhaps not even in 44 theory but certainly in practice. 45 46 So, what I would have to - and this is why we have 47 checks and balances in the system. I don't recall every


1 detail of this agreement. What I, you know, do accept is 2 that the employees voted. It would be unusual for 3 employees to vote, to take that level of change, and so you 4 would want to look behind what was happening if that in 5 fact was the change. 6 7 Also, I don't believe my officials at the time would 8 have recommended such a radical change without some form of 9 compensation. But, you know, I see the theoretical point 10 you're making. I'm just not sure that was the case. 11 12 Q. That is a separate issue, isn't it, Mr Shorten? 13 A. But is it a separate issue, Mr Stoljar, when you are 14 saying, "How can you do this? How can you do this when, on 15 the face of it, there's a reduction?", and I guess what I'm 16 saying back to you is I don't know if there was a reduction 17 of this dimension. I would be surprised if employees voted 18 for it. I would be surprised if my officials would have 19 recommended it, and I would be surprised if my officials 20 neglected to draw my attention to it in statutory 21 declarations. I'm not saying you're wrong. I am just 22 saying I don't know, and I don't go that far back in time 23 to understand. 24 25 Q. Remember I took you to page 369? 26 A. Of which volume? 27 28 Q. Volume 1. It is making this very point, isn't it? 29 This is a letter from Mr Beard and he says in the fifth 30 paragraph: 31 32 Currently under the award ... 33 34 A. On which page? 35 36 Q. Page 369: 37 38 ... a level 1 employee would receive $31.30 39 per hour for work performed on a public 40 holiday. 41 42 He is making the point, isn't he, that casuals don't get 43 a flat rate on a public holiday, they get penalty? 44 A. He says that this is the case for the Safety Net 45 Review and as I refer you back to my answer, I just don't 46 know if the company was doing this. 47


1 Q. Whether or not the company was complying with the 2 award is, in a sense, a separate question. But what 3 I wanted to direct your attention to is the statutory 4 declaration at page 22 of volume 2, at 7.4, which follows 5 a question about overall terms and conditions, and then 7.4 6 says: 7 8 To be answered only if there is any 9 reduction in the terms and conditions of 10 employees covered by the agreement under 11 any relevant or designated award or other 12 law but not resulting in a reduction in the 13 overall terms and conditions of employees. 14 15 By referring to specific clauses in the 16 agreement, specify any such reductions. 17 18 Clause 8.4, I think it was, of the agreement on page 4 of 19 the bundle says: 20 21 Notwithstanding the provisions of 22 clause 8.3, the minimum hourly rate for 23 level 1 casual workers working at events 24 shall be $16.28 per hour, $17.44 per hour 25 for level 2 casual workers and $18.44 per 26 hour for level 3 casual workers. 27 28 So, that's what they are getting and they are not getting 29 the penalty rates contemplated in the award. Now, do you 30 accept the proposition that a full and complete answer to 31 7.4 would have required reference at least to clause 8.4 in 32 the EBA? 33 A. I can't answer for what the person who did the 34 stat dec is, but I see the point you're making, yes. 35 36 Q. I'm not asking you to comment on the person who signed 37 the stat dec, Mr Shorten, and, to be clear, we don't know 38 what was before that person; we don't know what mental 39 processes that person went through, so I'm not making any 40 comment on that person. But looking at that 7.4 now, don't 41 you accept the proposition that a truthful answer to 7.4 42 would have required reference at least to clause 8.4 of the 43 EBA? 44 A. You're asking me what someone else's truthful answer 45 to 7.4 should be. I understand the points you are 46 making but I'm -- 47


1 Q. Mr Shorten, are you really having difficulty with my 2 question? 3 A. No. 4 5 Q. I'm saying as you sit here today, do you accept the 6 proposition that a truthful answer to 7.4 would have 7 required disclosure or reference to at least clause 8.4 of 8 the EBA? 9 A. It's correct that if there were changes in conditions 10 which go towards these matters, that they should be 11 recorded in a statutory declaration, yes. 12 13 Q. That's right. So that the independent umpire, as you 14 call the Commission, knows what reductions in the terms and 15 conditions of employees covered by the agreement are? 16 A. Mmm. Yes. 17 18 Q. The stat dec is a standard form stat dec, as you know. 19 It is Form 28 under the relevant rules. It has been quite 20 carefully crafted so that the next step, in effect, 21 requires information - this is 7.5 - as to why, given that 22 there will be a reduction in the overall terms and 23 conditions, "the Commission should be satisfied that 24 certifying the agreement is not contrary to the public 25 interest." Do you see that? 26 A. Yes. 27 28 Q. So the idea is: 7.3, you look at whether there is 29 a reduction on balance in the overall terms and conditions; 30 7.4, you identify any reduction even if, in your opinion, 31 it's not a reduction in the overall terms and conditions. 32 In 7.5, you have the opportunity of setting out why, even 33 though there is such a reduction, the Commission should be 34 satisfied that certifying the agreement is not contrary to 35 public interest. 36 A. Yes, that's right. 37 38 Q. The problem here is that this stat dec, for whatever 39 reason, has simply not been answered fully and completely 40 or properly; that's right, isn't it? 41 A. I see the point you're making, yes. 42 43 Q. That meant that the independent umpire, as you put it, 44 was not in a position properly to consider whether or not 45 to certify the 2004 agreement; correct? 46 A. What I can't do is go back to 2004 and second-guess 47 all the processes. What I can do is just explain my


1 practice. My practice, as leader of the Union, was to 2 ensure there was the best negotiations possible. It was to 3 also make sure people were getting pay rises and there are 4 clearly pay rises in this agreement. The workforce here, 5 as best I recall, could really be broken into a number of 6 categories. There is your permanent workforce, there is 7 your regular casuals, permanent casuals, and then there's 8 event casuals. You know, I know that what would have 9 motivated by officials is making sure we got the best deal 10 possible so that people are getting more hours of work. 11 12 When it comes to event casuals, and notwithstanding 13 any point you have made - you know, I see what you're 14 saying - a lot of these people who work for four days or 15 five days in a year, they're backpackers; they're perhaps 16 people on student visas who are earning some extra money 17 while they are in Australia. It is important they get paid 18 properly. It is also important that they get paid so 19 they're not being employed by some sort of shonky pyramid 20 subcontractor as I mentioned earlier. 21 22 As for myself, I rely upon the advice of my officials 23 in terms of what the agreements contain and, you know, on 24 balance, as I understand it, the workforce here voted for 25 the agreement. 26 27 Q. Could you have a look, please, at the -- 28 29 THE COMMISSIONER: Q. Can I just ask you, Mr Shorten, 30 about the advice of the officials. You have been a Cabinet 31 Ministers. Cabinet Ministers have to make many decisions 32 and the public servants who advise them - take the Minister 33 for Immigration - would prepare really quite large dossiers 34 that would take a long time to read before the Minister is 35 invited to make a decision. Obviously trade unions are 36 perhaps different from the Commonwealth Public Service, but 37 was there any regular system by which the officials 38 actually doing the negotiating had to formally identify, 39 either in documentary form or in an oral report, what the 40 advantages of the proposed EBA were, what the possible 41 disadvantages were, and so on, or was it a more informal 42 process by which you would just expect them, from case to 43 case if there was a problem, to tell you about the problem? 44 A. No. Look, I put in place a process when I became 45 Secretary of the Union. When enterprise bargaining came 46 in, it required a lot more work from individual Union 47 officials. It wasn't just servicing members on their


1 complaints. It was bargaining. I realised - soon realised 2 as Secretary of the Union that I wasn't going to be at 3 every negotiation or be across every detail, so I put in 4 place some checks and balances. What I would do is we 5 would have monthly reports from the organisers on what 6 they're doing. I would also have summaries of the 7 agreements when they're presented for signature. In the 8 summaries - I don't recall exactly the features but they 9 were a template. The Union would have a series of claims 10 or propositions. I didn't expect our organisers to get 11 every claim. That is perhaps one difference between the 12 AWU and some unions. 13 14 If I thought the organisers had been pretty diligent, 15 if I thought that the members had been engaged in the 16 process, then I wasn't going to second-guess the 17 arrangements which members struck. I have a very strong 18 view - and sometimes it would lead to debates within the 19 union movement, but if the members of a particular site or 20 workplace had decided this was a good agreement, you could 21 go to them and say X, Y, Z but if they thought A, B, C, 22 well, at the end of the day, they're the people that pay 23 your wages. Also I would have relied upon the statutory 24 declarations, you know, to pick up the issues. 25 26 I can't pretend to you, though, Commissioner, it's as 27 rigorous as a Cabinet process but there was a degree of 28 system in the process. 29 30 Q. Another point you have been making, I think, 31 a reasonable number of times is this: you have stressed 32 the consent of the workers. Some of the event casuals gave 33 evidence six weeks or so ago to the Commission on different 34 questions from this one. You mentioned, yourself, the 35 problem, of backpackers, people on student visas. Some of 36 them were students. Some of them didn't seem to speak very 37 good English. We are talking about a section of society, 38 I suppose, that is rather low down the pecking order. It 39 might be difficult, I would have thought, to expose for 40 their consideration the various factors in play. Was there 41 any system as to what the Union officials did in relation 42 to their dealings with the workers before they got the 43 consent of the workers, or sought the consent of the 44 workers? 45 A. Yes. First of all, the Act at the time required an 46 identification of people from different backgrounds. So, 47 you know, age, non-English speaking background. One of the


1 dilemmas with getting a decision at all with event casuals 2 is they're employed for a few days, and unless you take the 3 vote at the time that they're all working, it becomes hard 4 to ascertain their opinion. I acknowledge that is 5 a weakness in the system of casual employment and event 6 employment, full stop. Of course, the problem with waiting 7 until you set the conditions at an event - you might say 8 well, if you are going to cover the Sydney Olympics, why 9 not wait until the Sydney Olympics to sort out the 10 conditions of people? The dilemma with that, of course, 11 is, one, they are there to do the work, earn their money 12 and go. I'm not sure any employer would want us going into 13 one of these large events, the Test Match, or, you know, 14 the grand final and have a vote. That wouldn't 15 be - I don't think that would necessarily work practically. 16 17 So, I assume that what we rely on, and what I regard 18 as best practice is you get your delegates involved. The 19 delegates are people who work every day and that's why we 20 train them and they, you know, take the temperature. They 21 are, if you like, a thermometer of what is going on, the 22 view of people on the job, on the ground. 23 24 Q. I see. In this particular instance, there weren't 25 sort of ads which said, "Meetings will be held at the 26 following times at the following places", it was more 27 a question of going around and assessing the general mood 28 by speaking to people, one by one? 29 A. I genuinely can't go back that far, but I would have 30 believed, and my practice would have been, that they would 31 actually have meetings and there would have been on 32 something which had taken as long as this a balloting 33 process. I think that would have been necessary, too, and 34 certainly that is the advice I would have received from 35 officials. 36 37 THE COMMISSIONER: Yes, Mr Stoljar? 38 39 MR STOLJAR: Q. Could you come to page 27. Can I ask 40 you to look at the transcript at what actually occurred on 41 20 December. This is the hearing whereby the agreement was 42 certified. It begins at 12.08pm and then at page 28 it 43 says: 44 45 THE COMMISSIONER: Now, Mr Winter, what 46 can you tell me about the agreement itself? 47 Does it meet the no disadvantage test in


1 your view? 2 3 And the AWU's representative doesn't deal with that 4 question directly at that point. At the bottom of page 30 5 the Commissioner comes back to it and says: 6 7 THE COMMISSIONER: Now, Mr Winter, my 8 question: do you generally assert that 9 this agreement meets the no disadvantage 10 test? 11 12 The top of page 31 says: 13 14 MR WINTER: Yes, we believe it does ... 15 16 THE COMMISSIONER: Good, that is 17 sufficient ... 18 19 A bit further down the page it says: 20 21 MR WINTER: Unless you have further 22 questions, I would rely on the statutory 23 declarations. It has been for a re-vote 24 and that is shown in the statutory 25 declarations. 26 27 Page 32: 28 29 The Commission is satisfied the agreement 30 meets the no disadvantage test. 31 32 A. Sorry, which page is that on? 33 34 Q. I went to page 30. 35 A. You are on page 31 now, are you, Mr Stoljar? 36 37 Q. Page 32, actually. 38 A. I beg your pardon. 39 40 Q. Again, as usual, Mr Shorten, read through the whole 41 thing if you need to. 42 A. Sorry, as I was asking which page you were on, what 43 was the thing you quoted to me? 44 45 Q. On page 32, I was saying: 46 47 The Commission is satisfied the agreement


1 meets the no disadvantage test. 2 3 A. Okay. 4 5 Q. My only point is this, really, that this entire 6 hearing took place between 12.08 and 12.17 on 20 December 7 and the Commissioner was entirely really in the hands of, 8 or reliant upon, what was in the stat decs, is that fair to 9 say? 10 A. Yes. 11 12 Q. If the stat decs didn't include reference to relevant 13 reductions in the terms and conditions, well, that is 14 a matter that just was never going to be ventilated before 15 the independent umpire, that's right, isn't it? 16 A. That would really put me in the same position as the 17 Commissioner then because I relied upon the stat decs as 18 well. I say that also - and, again, there is plenty of 19 context here and there is plenty of detail which I am not 20 sure that I am fully seeing, so I take it on board. 21 22 MR STOLJAR: I note the time, Commissioner. 23 24 THE COMMISSIONER: Yes. Mr Myers, at one stage I thought 25 these two days of hearings would finish in less than the 26 two days, in which event I was going to invite your side, 27 if they wanted, to ask Mr Shorten, as it were, 28 re-examination questions. It does not look like that is 29 going to happen but if it does happen, feel free to do 30 that. 31 32 After this, as I think you appreciate, anyone who 33 wants to cross-examine Mr Shorten will have to make out 34 a case for doing so. At the moment it is a bit hard to 35 predict whether there will be any or very much. But 36 whether or not any re-examination takes place tomorrow, it 37 can also take place after that occasion and if there aren't 38 any cross-examiners who emerge, then at some later time 39 there can be. 40 41 MR MYERS: Thank you, Commissioner. 42 43 THE COMMISSIONER: It is just that Mr Shorten may feel, or 44 you may feel, that something slightly unintentionally 45 misleading has happened today. I am putting this purely 46 hypothetically. It is best if it is cleared up quite 47 quickly but, in all events, everything can be cleared up


1 the next time we meet with Mr Shorten. 2 3 MR MYERS: Thank you, sir. I will take instructions about 4 that and if there is time tomorrow, we will probably try 5 and deal with that. 6 7 THE COMMISSIONER: The hearing will resume at 10am 8 tomorrow. 9 10 AT 4.10PM THE COMMISSION WAS ADJOURNED TO THURSDAY, 9 JULY 11 2015 AT 10AM 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47


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