The events involving the respondents giving rise to and constituting the matters complained of by the applicant - the testimonial evidence adduced from the applicant's witnesses
59 I shall now describe in more detail the circumstances giving rise to the contentious conduct of the respondents complained of by the applicant, as appears mainly from the evidence tendered by the applicant, chiefly by affidavit.
60 At the request of Mr McGahan, (of course the second respondent), and of Mr Glass, in their respective capacities as organisers of the Union, Bakkante undertook the employment of Mr Blevin on 1 August 2002 as a general labourer on the Clifton Apartments/Bakkante construction site located in Saunders Street Pyrmont, to which of course reference has already been made. According to Mr Blevin, he had earlier met with Ricardo Zoratto ('Mr Zoratto'), Bakkante's site manager and a witness for the applicant in the proceedings. Mr Blevin claimed to have said to Mr Zoratto, in the presence of Mr Glass, 'We need someone to look after safety and a union delegate on the job'. Construction work on the development of the site had commenced in May 2001, and the completion date had been originally programmed for 13 September 2002. The preceding head building contractor for the development had been Lecan Constructions Pty Ltd ('Lecan'), a company unrelated to Bakkante. It was a substantial project, the original contract price being in the order of $12 million. Sub-contractors engaged by Lecan ceased on-site work in early June 2002, in the context of financial difficulties involving substantial default by Lecan in payment of its subcontractors. Mr McGahan became 'heavily involved in sorting out the Lecan problems on site', to cite Mr Ben Yee's evidence. In the upshot, Belijan (the building developer corporately related to Bakkante earlier identified) appears to have assumed responsibility for payment of arrears owing by Lecan to its subcontractors for work undertaken from 1 May 2002. The Union apparently played a significant role in ensuring payment was made to sub-contractors unpaid by Lecan. When on-site work resumed on 19 June 2002, Bakkante assumed the management of payments thereafter to be made to on-site sub-contractors, and the functions otherwise of head contractor in the place of Lecan, which had submitted in the meantime to insolvent administration. It appears that Bakkante paid its employees rates of pay according to the Enterprise Bargaining Award ('EBA'), notwithstanding that Bakkante did not have an EBA with the Union, and notwithstanding that as a member of the Master Builders Association ('MBA'), Bakkante would normally have paid its workers pursuant to the National Building and Construction Award (Federal) 1990, to which reference has already been made in these reasons. At least from about that time, Mr Yee was engaged operationally on the site on behalf of Bakkante on virtually a daily basis, as Bakkante's principal officer and representative. Shortly after Mr Blevin had commenced employment for Bakkante on 1 August 2002, he was elected as the site delegate of the Union, and Bakkante was so notified. Mr Blevin had been previously the Union's site delegate in the context of his employment on at least two other building sites in Sydney.
61 It appears that from the time Mr Blevin entered upon his employment duties for Bakkante, issues were raised by him, in discussion with Mr Zoratto, concerning the availability of work on Saturdays, work safety, site amenities, and trade union membership of subcontractors. On 28 August 2002, all construction work on the site ceased for about five hours of productive time, without prior consultation with Bakkante, or with Mr Zoratto in particular as site manager. The 'leading hand' employed on the building site by Bakkante, Mr Trados, reported in the site diary for that day that 'everyone left site 10.00am due to union policy'. Mr Blevin said that he 'did not get on quite well' with Mr Trados, whom he described as having 'no significant experience in the industry'. Whether that strike action was justified or otherwise is not an issue of any kind in the proceedings. The incident merely exemplified Mr Blevin's early impact on this construction site and its activities in his capacity as site delegate of the Union.
62 As I have earlier mentioned, Mr de los Reyes, the focus of the dispute the subject of the proceedings, had been originally contracted to undertake cleaning work in relation to an occupied office building situate at 117 Murray Street Pyrmont, where the administrative offices for the Belijan corporate group, inclusive of Bakkante, were located. That cleaning work had been performed by Mr de los Reyes per medium of his cleaning (family) company Phoenix. He had been assisted in that cleaning work by the part time or casual employment of his wife Elizabeth and his son Eduardo. Phoenix held a public liability insurance policy, but not a workers compensation insurance policy, a matter which featured in the later contentious events of this litigation. Mr de los Reyes said that he did not think he needed the latter kind of policy '… because I am a Director and the only other people who do work for Phoenix are family members'. From the first week of September 2002, Phoenix was contracted by Bakkante to clean the amenities sheds, and to undertake other general clean-up work, at the subject building site in Saunders Street Pyrmont, which cleaning tasks involved about two hours work on each of three days per week, for which Phoenix was paid by Bakkante on a monthly basis. Mr de los Reyes physically carried out that work for Phoenix, the status of Phoenix being at all times that of an independent contractor.
63 Controversy between Bakkante and the Union, in relation to Mr de los Reyes' presence on the site, at least of any significance, did not appear to arise until about 20 November 2002, when Mr de los Reyes entered upon full time construction-type work for Bakkante at the Clifton Apartments site, instead of the part time cleaning work at the site undertaken by him for Phoenix, the latter work having ceased to be required by Bakkante. That construction-type work was undertaken by Mr de los Reyes as an employee directly of Bakkante, as was subsequently recorded in Bakkante's wages book, income tax instalments being deducted from his wages. The construction work so undertaken by Mr de los Reyes was in the nature of general labouring, in relation to which Mr Zoratto first 'arranged for him to go to a green card course'. The recruitment by Bakkante of Mr de los Reyes to full time employment on the construction site quickly led to disputation between Bakkante and the Union. Mr de los Reyes was not then a member of the Union, and did not become a member until after the contentious events which are recorded hereafter in these reasons for judgment.
64 Mr de los Reyes said that he was approached by Mr Blevin on the construction site during the first day of his commencement of full time construction type work for Bakkante as an employee of Bakkante. On that occasion, Mr de los Reyes claimed that Mr Blevin prevented him from operating the Alimack hoist, ostensibly on safety grounds, Mr Blevin saying to him in the presence of another Bakkante employee, whom Mr de los Reyes did not identify by name, 'He hasn't got any papers'. Mr de los Reyes did not again operate the Alimack hoist until after the conclusion of the ensuing dispute between the Union and Bakkante involving Mr de los Reyes. Later on that day, Mr de los Reyes further testified that whilst he was alone on the building site, Mr Blevin told him 'You have to join the union before you can work here', and further 'I'll give you five days to think about it', in the latter instance after Mr de los Reyes told Mr Blevin 'I don't want to join the union'.
65 The next occasion of confrontation initiated by Mr Blevin was said by Mr de los Reyes to have occurred on the construction site only 'a couple of days later', when both of them were again alone. Mr de los Reyes claimed that in response to his informing Mr Blevin 'I told you, I am not going to join the union', Mr Blevin had replied 'Listen I have done you a favour. I allowed you to work here on ABN and now you should do me a favour and join the union'. That was apparently a reference to Mr de los Reyes' site clean-up engagement. Mr Blevin described the suggestion that he made that remark as 'complete rubbish'. The reference to 'ABN' was of course to an Australian Business Number - the Australian Tax Office system put in place for independent contractors, as distinct from the income tax instalment system applicable to salaried employees. Four days later, a similar conversation was said by Mr de los Reyes to have again occurred between the two of them, when in answer to Mr Blevin's question 'have you decided yet?', Mr de los Reyes replied 'Yes, I am not going to join it' (ie the Union). That reference to four days, I would observe from other evidence as to the timing of those events, would seem to have been an overstatement. The asking of Mr de los Reyes by Mr Blevin on three successive occasions to join the Union was adhered to by Mr de los Reyes under cross-examination.
66 A construction worker Amir Osmankerim ('Mr Osmankerim'), who had been employed at the Pyrmont site, originally by Lecan, and subsequently by Bakkante, provided affidavit evidence for the applicant. He recalled an occasion in November 2002, when he heard Mr Blevin tell Mr Yee that Mr de los Reyes '… can't operate the Alimack without a ticket', and when Mr Yee thereupon claimed 'he can operate with a log book', Mr Blevin is said to have responded 'I don't care, get somebody with a ticket'. Obtaining a 'ticket' implied of course becoming a member of the Union. Mr Blevin for his part admitted to raising an issue with Mr Yee as to Mr de los Reyes 'not having a ticket', but otherwise denied participation in any such dialogue. Mr Osmankerim next testified by affidavit as to hearing a conversation between Mr Yee and Mr Blevin, a few days later, concerning Mr de los Reyes when Mr Blevin said 'Rodney [referring thereby to Mr de los Reyes] has to be a union member', to which Mr Yee was said to have replied 'The bloke does not want to join the union. That is his choice'. That reference to 'a few days later' would again appear to have been an overstatement, based on the objective evidence. Mr Osmankerim recorded Mr Blevin's rejoinder as follows: 'I don't care. He has to join the union. I don't care whether it is you or him. I am not going to argue about this'. Mr Osmankerim further testified to hearing Mr Blevin saying to Mr de los Reyes 'not long after': 'Everyone in Bakkante Constructions are union members and you have to join the union too, seeing you are part of the team', and that when he (ie Mr Osmankerim) intruded and said to Mr Blevin 'Alan, you are not forcing him to do something he doesn't want to do are you?', Mr Blevin was said by Mr Osmankerim to have responded 'No, no no. I am just giving him the union's view of what we fought for'. (Mr Blevin for his part denied that any such conversations, as related by Mr Osmankerim, occurred at all). When Mr Blevin thereafter walked away from the two of them, Mr de los Reyes was said by Mr Osmankerim to have confided to him 'He is hassling me to join the union again'.
67 I should interpolate at this point to record that when Mr Osmankerim entered the witness box, he volunteered to the Court that he was 'forced' to make his affidavit by 'Bakkante Constructions which was my employer at the time'; he then testified however that '… most of the affidavits (sic) is correct…'; moreover when I asked him '… is there anything which is not truthful?', he answered 'No, the thing here is truthful, your Honour', referring thereby to his affidavit; under cross-examination by reference further to the content of his affidavit generally, Mr Osmankerim affirmed 'They were my words. Yes, these were my words at the time'. In any event, he agreed under cross-examination that Mr Blevin told him 'something like "Bakkante is paying us union EBA rates"', and further that '… Mr de los Reyes should join the CFMEU because he would be receiving CFMEU negotiated rates and conditions'. Evidence given by Mr Osmankerim as to subsequent events which he witnessed is later recorded in these reasons. I would conclude, assisted partly by his evident detachment from the heat of this contest, that his evidence should be accepted as truthfully given, and his recall as tending to accuracy.
68 I have earlier identified the Bakkante site manager Mr Zoratto, who reported to Mr Yee. When Mr Zoratto was informed by Mr Yee that Mr de los Reyes was seeking more working time than his limited part time involvement in cleaning up the construction site, Mr Zoratto had arranged for him 'to go to a green card course'. When Mr de los Reyes started to participate in actual construction work on the Clifton Apartments site later in November 2002, as a direct full time employee of Bakkante, Mr Zoratto testified that Mr Blevin came onto the site office a few days later, where he was conversing with Mr Ben Yee, and demanded of them as follows:
'Rodney can't work on the site. He can't work on an ABN. Where are his insurances? I want to see his wages books.'
When Mr Yee was said by Mr Zoratto to have responded 'He is on our payroll', Mr Zoratto further testified that Mr Blevin demanded: '… I want him off the job'. Mr Zoratto said that he and Mr Yee did not bother telling Mr de los Reyes what Mr Blevin had so demanded, because to Mr Zoratto's understanding, Mr de los Reyes 'had no need to present anything beyond his green card'. Mr Zoratto further testified that he had earlier heard Mr Blevin inform Mr Yee to the effect 'I've got a mate whose (sic) out of work and needs the job. He's got all the tickets needed'.
69 Mr Zoratto's affidavit next spoke of the occurrence of visits to the site office by both Mr McGahan and Mr Blevin, and of their demands to be allowed to inspect Mr de los Reyes' so-called 'wage books and his insurances' and to show them Mr de los Reyes' 'books', and of Mr Zoratto's assertions in response to the effect that Mr de los Reyes had ceased to be employed on the taxation basis of an ABN, and was by then being paid wages as part of Bakkante's payroll of employees. Mr Zoratto testified to later repeating that assertion during 'one morning [when] I was called across to the coffee shop', where he saw Mr Yee in conversation with Messrs McGahan, Blevin and Glass. On that occasion he recalled Mr McGahan saying to Mr Yee 'You can't have subbies on site working on ABN', and further that Mr de los Reyes was not to work on the site until he produced his workers compensation, public liability insurance policy and wages books. Mr McGahan was said by Mr Zoratto to have then requested that Mr de los Reyes come across to the coffee shop meeting then in progress.
70 Mr Zoratto thereafter recounted what occurred after Mr de los Reyes arrived at the coffee shop gathering. In response to Mr McGahan's initial questions to Mr de los Reyes, Mr Zoratto testified to hearing Mr de los Reyes assert that he was working on the payroll of Bakkante, and was not working 'on ABN', and to hearing Mr McGahan demand to see Mr de the los Reyes' 'books', allegedly in order for the Union 'to see if you are receiving all your entitlements', and to further hearing Mr Yee said 'He is not working on an ABN' and 'He is on our payroll', and 'You do not have to see his books'. I interpolate to point out that as will later appear, Mr de los Reyes had not by that time reached the first working day when his initial payment of weekly wages would become actually payable, so that it would seem, as at this point in time, Mr Yee would have had no records to produce, one way or the other. Yet it was on the other hand enigmatic behaviour of Messrs Blevin and McGahan to have been making such demands upon Mr Yee at a time when evidently, at least so far as Mr Blevin would have been aware, the time for payment of Mr de los Reyes' first remunerative as a construction employee had not yet crystallised. At that stage, Mr McGahan was said by Mr Zoratto to have produced a white card which Mr Zoratto recognised to be a CFMEU application for membership form. Mr Zoratto said he heard Mr de los Reyes ask Mr McGahan whether it was compulsory to join the Union, to which Mr McGahan answered 'No', and Mr de los Reyes thereupon responding 'Well therefore I am not joining'.
71 Mr Zoratto's affidavit narrative next followed to the effect that Mr de los Reyes continued to work on the Bakkante/Clifton Apartments site full time as a labourer, though at one stage, he and Mr Yee asked Mr de los Reyes to train as a hoist driver. In that context, Mr Zoratto recalled that Mr Blevin entered the site office and asserted that Mr de los Reyes '… can't work the hoist because he is not ticketed', to which Mr Zoratto replied 'I want him working on a logbook - that is the workcover requirement', following which Mr Blevin was said by Mr Zoratto to have left the site office, and Mr Osmankerim to have thereafter 'signed off' on Mr de los Reyes' logbook and supervised his training as a hoist driver.
72 Mr Zoratto's affidavit account narrated that Mr Blevin thereafter continued to demand that Mr de los Reyes join the Union. In early December 2002, according to Mr Zoratto's affidavit testimony, he witnessed a conversation between Mr Blevin and Mr Yee in the site office where he and Mr Yee were then working, when Mr Blevin said words to the effect: 'I want Rodney [ie Mr de los Reyes] in the union'; and Mr Yee replied 'He doesn't have to join if he doesn't want to. We will not force him to join. It is up to him if he wants to join or not'; Mr Blevin was said by Mr Zoratto to have rejoined 'I suggest he joins the union'. Mr Zoratto further testified that a few days later, he overheard a further conversation between Mr Yee and Mr Blevin, when Mr Blevin said: 'Give Rodney the money for union membership. If he hasn't got the money, you pay for it, and Mr Yee replied 'If he doesn't want to join, he doesn't have to.' Whilst I would accept that Mr Zoratto's evidence, which I have recorded above, was truthfully given, the independent evidence indicates that his recall of the timing of the events which he narrated occurred over a narrower period of time than he described in his affidavit; thus his timing estimate above of 'early December' does not accord with the objective evidence.
73 Later in mid December 2002, Mr Zoratto testified in his affidavit that he was in the site office with Mr Yee when Mr Blevin walked in and said: 'Hey Ben, where is the cheque for Rodney?', to which Mr Yee responded 'Here it is', and passed a cheque to Mr Blevin, who then left the office. Following that conversation, Mr Zoratto said that he was unaware of any more issues being raised by any Union representatives involving Mr de los Reyes, and in particular, there was no request on their part that there be produced for their inspection Mr de los Reyes' wages books or insurance records. There does not appear to have been any contradiction led from the respondents as to the significant turn of events thus described by Mr Zoratto.
74 Mr Zoratto was not cross-examined at any considerable length upon his affidavit. He confirmed under cross-examination his account of the coffee shop conversation, and said that the CFMEU membership card handed by Mr McGahan to Mr de los Reyes, in the course of that conversation, was 'approximately 75mm wide times 150mm in height'. It was also put to Mr Zoratto in cross-examination, briefly in relation to his account of the coffee shop conversation, '… that didn't occur', to which Mr Zoratto replied 'No it did occur'. Nothing of significance contained in his evidence on cross-examination led me to any conclusion otherwise than that Mr Zoratto was truthful in both his affidavit and viva voce evidence, and essentially accurate in its material respects.
75 The principal affidavit evidence tendered by the applicant was that of Mr Yee. Some of the background testimony contained in his principal affidavit of 15 May 2003 has been already recorded. Mr Yee spoke of the request made by Mr McGahan, in the presence of Mr Glass, to take over the on-site employment of Mr Blevin, who was said by Mr McGahan to have 'just been laid off from Fletchers at the Global Switch job', being a request which, according Mr Yee, was fulfilled by Bakkante on 25 July 2002 somewhat reluctantly and under a measure of pressure. During the first week of his employment by Bakkante, Mr Blevin was apparently elected as the Union's site delegate, and according to Mr Blevin, was so elected by site employees and subcontractors in preference to Mr Osmankerim. He spoke however of incidents of friction thereafter arising in relation for instance to Mr Blevin 'taking a lot of time off for union delegate's meetings', and to Mr Blevin's request for constant Saturday work. Another instance of early controversy involving Bakkante and the Union related to the demand of Messrs Blevin, Glass and McGahan upon Bakkante, said by Mr Yee to have been made on 9 October 2002, that in the event of redundancy of workmen engaged on the Bakkante site arising out of the financial difficulties encountered by Bakkante, albeit caused by Lecan's financial collapse, payment of eight weeks' redundancy payments was nevertheless required by the Union for workers engaged on the site, who by this time, it would seem, had become virtually all members of the Union. I interpolate to record that Mr Blevin for his part denied causing any friction with Bakkante's employees, including Mr Zoratto, during the earlier times of his employment, and asserted that he merely conducted a number of discussions relating to occupational health and safety issues, and the obligation of subcontractors to make superannuation payments in respect of their employees. However my assessment of the events which happened would render that testimony on his part to be a substantial understatement of the nature and incidents of his on-site conduct.
76 There can be little doubt that the employment by Bakkante of Mr de los Reyes on full time general labouring duties in relation to the construction site, which appears to have commenced on 20 November 2002, triggered substantial controversy between Mr Blevin and Mr Yee, which ultimately gave rise to the circumstances critically falling for determination. There occurred a meeting on site, late on that critical day, between Mr Yee, Mr de los Reyes and Mr Osmankerim with Mr Blevin, when Mr Yee informed Mr Blevin of that intended course, which would be by way of replacement of the existing part time engagement of Mr de los Reyes on site cleaning-up, the latter form of engagement having been of course the subject of arrangements between Bakkante and Mr de los Reyes' family company Phoenix. The following on-site conversation was said by Mr Yee to have occurred on that occasion between he, Mr Osmankerim and Mr Blevin:
Mr Yee: 'We have decided to hire Rodney to help us with labour on the site. He has done his green card course and he will be going on the books of the company'.
Mr Blevin: 'You are not employing him under ABN are you?'
(By that question, Mr Yee said he understood Mr Blevin to be asking whether Bakkante was employing or intending to employ Mr de los Reyes as an independent contractor using his own ABN for income tax purposes; in that regard, although independent contractors were constitutionally eligible to become members of the Union, I think that it may be inferred that at least in relation to the Clifton Apartments Development, the greater proportion of Union members were employees).
Mr Yee: 'No. He will be on wages.'
Mr Blevin: 'I am sick and tired of being discriminated against.'
Mr Yee: 'What do you mean?'
Mr Blevin: 'It is obvious that you are ignoring my requests about this friend of mine that I have asked you to employ.'
Mr Yee said he understood the latter observation on Mr Blevin's part to be a reference to approaches Mr Blevin had previously made to Mr Yee for Bakkante to hire a friend of his named Chris Heggarty. There is no doubt, incidentally, that Mr Yee accurately stated above 'He will be on wages'; attached to Mr Glass's affidavit was a tax file number declaration bearing the signature of Mr de los Reyes, and immediately below that signature, the date 20 November 2002. The conversation on that occasion continued, according to Mr Yee, as follows:
Mr Yee: 'No. I have known Rodney for a long time and he is looking for work, so I hired him. I would rather I hire somebody I have known for a long time rather than someone I don't know.
(The reference to 'Rodney' was of course to Mr de los Reyes)
Mr Blevin: 'Well I still feel that I am being discriminated against and I don't think that Rodney should come to work here because he is not a ticketed hoist driver. Only people with proper tickets are allowed on this job and that is the rule.'
Mr Yee: 'Well Rodney can just go into general labour then.'
Mr Osmankerim: 'Show me in what rule book does it say that a non-ticketed worker cannot learn to drive a hoist on a log-book.'
Mr Blevin: 'I will talk to Joe McGahan about this and we will see. If this is the way that you want to run the site I can make life for you real hard. I will ask for all the requirements to comply with the OH&S Regulations and that means material data sheets, safe work method statements for every single sub-contractor. You won't be able to move until all this paperwork is in order.'
Mr Yee: 'Well if that's the way it is going to be, then that's the way it will be, but I can't understand what your problem is.'
77 On the morning of 26 November 2002, Mr Yee testified as to the following conversation taking place between himself, Mr Zoratto and Mr Blevin in the construction site office:
Mr Blevin: 'Rodney has to join the union. Only union members are allowed on this site.'
Mr Yee: 'No. If he doesn't want to join the union, which I think he has told you, then it is his choice not to join.'
Mr Blevin: 'What is the problem. Why won't he join the union?'
Mr Yee: 'I don't know. It may have something to do with the $220 he would have to pay you to join.'
Mr Blevin: 'Well he is not going to get the pay and work conditions of the union and not pay for it. I don't care if you pay for it or he pays for it but if he doesn't join the union by Monday there is going to be trouble.
And the other issue is you are not to hire any more body hire labour because it is taking jobs away from prospective workers.'
Mr Yee: 'Well I am not going to force him to join the union if he doesn't want to join the union.'
Mr Blevin: 'Well, have it your way.'
On the same day, Mr Yee said that he recorded on a form provided by the Masters Builders Association headed 'Site Bans/Limitations/Threats of Industrial Action/Intimidation' a report of that encounter with Mr Blevin, which included the following (inter alia):
'If Rodney did not join the Union there would be trouble within 5 days…'.
However Mr Blevin said in cross-examination that in the face of Mr de los Reyes' refusal to join the Union, '… I wasn't going to pursue it any further'; he characterised as 'nonsense, complete and utter rubbish' the suggestion that he said to Mr Yee if Mr de los Reyes did not join the union, there would be 'trouble'.
78 Interpolating Mr Yee's affidavit account with further reference to Mr Zoratto's account, Mr Zoratto recalled in his affidavit evidence that Mr de los Reyes did not re-attend the Clifton Apartments building site 'for a few days', and further that when he did finally report for work, both Mr Blevin and Mr McGahan came into the site office, and in Mr Zoratto's presence, Mr McGahan asked 'Why is he working on an ABN?' to which Mr Yee responded 'he is not'. Mr McGahan then said 'I want to see his wage books and his insurances', to which Mr Yee further responded 'What for? He is on our payroll'. Mr McGahan was recalled by Mr Zoratto to have repeated his demands for 'Rodney's insurances and wages books', saying, according to Mr Zoratto's recall, 'He is not to work on the job until he shows his books', and Mr Yee in turn repetitively saying, according further to Mr Zoratto, 'He is on our payroll. He isn't on ABN. He was only on ABN when he worked one day a week as a cleaner'. Once again, Mr Zoratto's placement as to the timing of these controversial events was significantly astray, but my judgment is that there was an essential honesty in his recall of critical events, the inaccuracy in his recall residing in the timing and sequence. An in-house accountant for Bakkante (Mr Gunawan) produced by accompanying affidavit the timesheets of Bakkante related to Mr de los Reyes, which disclosed that commencing from 27 November 2002, Bakkante made income tax deductions from each of the weekly payments of wages made to Mr de los Reyes, and that those weekly payments, which were calculated starting from 20 November 2002, included a base rate plus overtime plus site allowances, PAYE Withholding and Superannuation. Thus 20 November 2002 appears to have been the starting day for Mr de los Reyes' undertaking of construction-type work on the Bakkante building site.
79 Mr Zoratto's affidavit evidence continued to the effect that he recalled an occasion when he attended the coffee shop located near the Clifton Apartments worksite after he being so requested, and there met with Messrs McGahan, Glass and Blevin and also with Mr Yee. That was obviously the critical coffee shop meeting which occurred on the day which was identified elsewhere in the evidence as having occurred on 25 November 2002. Mr Zoratto recalled Mr Blevin repeatedly requesting on that occasion 'the same thing', namely 'He is not to work on site until he produces his workers compensation, public liability and wages books', and Mr McGahan requesting Mr Yee that Mr de los Reyes attend that meeting in the coffee shop.
80 Mr Zoratto's affidavit evidence of the dialogue in the coffee shop, following upon Mr de los Reyes joining the discussion already in train between Mr Yee and Mr Zoratto with Mr McGahan and Mr Blevin, continued as follows:
Mr McGahan (to Mr de los Reyes): 'Are you on ABN or on the payroll?'
Mr de los Reyes: 'Payroll.'
Mr McGahan: 'Do you own your own company?'
Mr de los Reyes: 'Yes'.
Mr McGahan: 'We want to see your books.'
Mr de los Reyes: 'What for?'
Mr McGahan: 'We need to see if you are receiving all your entitlements.'
Mr de los Reyes: 'I have not got them here. They are at home. Why do you want to see them? I am only working for Ben.'
Mr Yee: 'He is not working on an ABN. He is on our payroll. You do not have to see his books.'
Of course based on the evidence I have earlier summarised, whilst it was correct for Mr Yee to have said to Mr McGahan that Mr de los Reyes was 'on our payroll', his first week's pay did not fall due until two days later on 27 November 2002. Nevertheless it is not without adverse significance to the respondents' case that the respondents exerted pressure relevantly upon Mr Yee and Mr de los Reyes, without awaiting production of Bakkante's employment records relating to what would be his first week's remuneration payment. Consistently with that observation, at that stage of this critical dialogue in the coffee shop, Mr Zoratto said that Mr McGahan produced a white card, which Mr Zoratto recognised to be a CFMEU application card, and pushed the card across the table to Mr de los Reyes, and according to Mr Zoratto,
Mr McGahan said: 'Here you are. Fill this out.'
Mr de los Reyes looked at it and said: 'What is this?'
Then Mr de los Reyes read the card and asked: 'Is it compulsory to join the union?'
Mr McGahan replied: 'No.'
Mr de los Reyes said: 'Well therefore I am not joining.'
According to Mr Zoratto, Mr McGahan thereupon said nothing, and Mr de los Reyes returned to the construction site; Mr Zoratto also testified that during the conversation Mr Blevin remained silent, which appears to have been common grounds.
81 Mr Zoratto's affidavit account of both on-site and coffee shop conversations, which I have recorded, were not directly challenged in cross-examination by way of reference to contradicting affidavit evidence of Messrs Blevin, McGahan or Glass, save explicitly as to Mr McGahan's handing to Mr de los Reyes in the coffee shop a white card containing a form of application to join the Union, which was put to Mr Zoratto as having never happened. The essence of the remainder of his cross-examination related to peripheral matters. I encountered no basis within the scope of Mr Zoratto's cross-examination to doubt the essential veracity of his affidavit evidence, my reservation being confined to his estimates of timing of events in which he participated, which was substantially astray in the aspects I have identified.
82 Mr de los Reyes' affidavit version of the dialogue of the coffee shop meeting, after he joined the meeting, and of what thereafter ensued, will next be recorded. Mr de los Reyes said that the meeting occurred on or about the fifth day after he started working full time for Bakkante, and that Mr Zoratto had asked him to attend the meeting whilst he was working on the construction site. When Mr de los Reyes arrived at the coffee shop in company with Mr Zoratto, already present to his recall were Mr Blevin, Mr Yee, and another person whom he was able to later identify as Mr McGahan. Mr de los Reyes testified as to the following conversation between himself and Mr McGahan, in the presence of the other attendees identified above:
Mr McGahan: 'So aside from working as a cleaner you want to work in the construction industry?'
Mr de los Reyes: 'Yes'.
Mr McGahan: 'You know the rules in the building industry. You have to join the union'.
Mr de los Reyes: 'Listen, I am in the union myself. I don't think it is necessary to join another union'.
Mr de los Reyes thereupon referred to his membership of the 'Miscellaneous Workers Union' (his MUW union ticket in that regard was exhibited in evidence).
Mr McGahan: 'Your union is different. You have nothing to do with that union in the building industry'.
Mr de los Reyes: 'I don't think it is necessary to join your union'.
Mr McGahan: 'If you want to work in the construction industry you will have to join the union'.
…
Mr de los Reyes: 'Is it compulsory to join the union?'
Mr McGahan: 'No'.
Mr de los Reyes: 'Well I don't want to join the union if it is not compulsory'.
Mr de los Reyes said that Mr McGahan thereafter kept quiet for about a minute, and then said:
'Well if this is going to be the case, then the axe is going to go down'.
According to Mr de los Reyes, Mr McGahan simultaneously gestured with his right hand in a downward chopping movement, and the conversation ended abruptly; Mr de los Reyes added that Mr Blevin did not 'say a word' during the above conversation conducted by Mr McGahan.
83 The cross-examination of Mr de los Reyes upon the affidavit material I have set out above revealed to the Court that he did not have an advanced speaking command of the English language, though he did not seek the assistance of an interpreter. He was controversially questioned as to his insurance and wage payment practices, the Phoenix family cleaning business, and his credibility generally. He repeated that Phoenix had held public risk insurance cover, but not workers compensation insurance, because the only employees of Phoenix were himself, his wife and child. That cover was for $5 million, and was verified by documentary evidence (Exhibit R2). Moreover he agreed that Phoenix did not deduct superannuation in respect of the salaries paid or credited to the three family members involved. He was then cross-examined at some length about his operation of the Alimack hoist, but he maintained his affidavit evidence to the effect that he was initially prevented by Mr Blevin, from operating the hoist until after he joined the Union. Moreover he denied that Mr Blevin had told him that if he joined the Union, he would receive CFMEU salary rates, in lieu of the EBA salary rates being paid by Bakkante.
84 Of more direct relevance to the critical issue arising in the proceedings, Mr de los Reyes adhered unequivocally to his evidence that he had said to Mr Blevin 'I don't want to join the union', in response to Mr Blevin having said more than once 'you have to… join the union'. He maintained that such demand was made by Mr Blevin 'in my first week as an employee as a construction worker… at the construction site'. He added in cross-examination that when the same demand was made the next day, Mr Blevin said to him 'I'll give you five days to think about it'. He further repeated under cross-examination that Mr Blevin said to him 'I have allowed you to work with your ABN. I've done you a favour, so you must do me a favour and join the union.' All that conversation material was said to have occurred prior to the coffee shop meeting. It should be noted the reference to Mr de los Reyes' use of an ABN number was somewhat puzzling, since the Phoenix records were more consistent with group tax deductions having been made by Phoenix as the process of its income tax accounting (post). Those taxation records appear to have been made by a tax consultant.
85 Mr de los Reyes was then cross-examined at length in relation to his account of the critical coffee shop meeting. In answer to Mr McGahan's questions about Phoenix's insurances, Mr de los Reyes said he repeated what he had earlier told Mr Blevin. He next said that Mr McGahan asked him the same questions he had already reproduced in his affidavit concerning his working in the construction industry. It was squarely put to Mr de loss Reyes that his account as to what was asked of him by Mr McGahan at the coffee shop meeting, concerning the matters I have outlined, was incorrect, but Mr de los Reyes unequivocally maintained the truth of his account. Set out below is an exemplification of parts of the cross-examination, and the responses, of Mr de los Reyes, and in particular what Mr de los Reyes repeated as to the critical culminating content of the coffee shop conversations:
'What was the conversation you say happened about the union, can you remember, can you tell the court what you say happened?---Him asking me to join the union.
What words did he use?---He said, if you want to work in the building industry you have to join the union.
And did he say anything else?---He said, I ask him if it is compulsory to join the union.
And what did he say to that?---He said no, it's not compulsory.
And that was the end of the discussion, was it?---No, there's some more he said to me, he said to me that still you have to join the union, if it's not compulsory, I would have to join the union.
So what he was saying to you was that he'd like you to join the union but it wasn't compulsory, is that the case?---Yes.
And after all of that did he say or do anything else?---Yes.
Yes, what did he say or do?---You're not going to join the union then the axe is going to go down with his hands in motion like this.
The axe?---The axe is going to go down with as I understood that I can't work in there.
Well, just stop for a moment. He said the axe is going to go down?---Yes, as I understood with his hands in motion.
Don't tell us what you understood, just tell us what you saw or heard?---He put his hands down like that and he said the axe is to go down.
…
Don't tell us what you understood, just tell us what he said?---I can't work in the industry.
Can I stop you there. Just tell us what you saw; his hand came down like an axe, did it?---That's right.
And this is after you had said to him, is it compulsory to join the union and he said no?---That's right.
…
Can I just put this to you that it just never happened?---It did happen.'
86 Counsel for the respondents sought to further test the veracity of Mr de los Reyes' account of the coffee shop meeting; set out below are two extracts of the further cross-examination of Mr de los Reyes:
'I just want to understand this part of it. Was this because you were so scared of Mr Joe McGahan or was it because of some other reason?---That's not the reason. I'm scared that I might create trouble if someone is going to approach me again about joining the union.
You were scared that you might create trouble?---That's right because I might lose my cool because they keep on coming to me asking me joining the union.
I see. So your concern was that you might react to a request to join the union by somebody?---That's right.
You didn't have any conversation with anybody else, this was just a conclusion that you reached in your own mind, was it?---No, I didn't have any conversation with other people.
And no one suggested that you not come back to work, did they?---No.
…
And you say you stayed away for 4 days from work, you were not paid for the four days, this is presumably because you were so scared that you might do something to somebody who asked you to join the union, was that the case?---That is, yes.
You were too scared to go back to the site, weren't you?---Exactly.
…'
87 Mr de los Reyes next testified in his affidavit, consistently with his later cross-examination set out above, that he did not go back to the construction site on the next day following the coffee shop meeting, partly because he felt he was being intimidated by Mr Blevin and Mr McGahan, and partly because if he went back to work, he 'would be causing Bakkante trouble'. On that next day however, he said he 'bumped into' Mr Yee, who said to him 'Don't you want to go back to work?' Mr de los Reyes' reply was 'Ben, I don't want to put you in trouble at work. If Alan comes back to me the discussion might get worse'. After that exchange was virtually repeated, Mr de los Reyes further said to Mr Yee '… I am worried about Alan', presumably thereby referring to Mr Blevin. Mr Yee then offered to Mr de los Ryes to pay the union fees for Mr de los Reyes, to which the response of Mr de los Reyes was 'that wasn't the point'.
88 Under cross-examination on that subject of his return to the Bakkante site for work, Mr de los Reyes further said in his cross-examination:
'I just come back to work at the request of Mr Ben Yee… As I said [Mr Yee] just asked me to go back to work. To return to work because Mr Blevin wasn't there you will not be in trouble.'
89 In the course of re-examination as to his reasons for returning to work, following the events and circumstances which I have recorded in these reasons, Mr de los Reyes provided the following testimony (inter alia):
'When you said in your evidence a little while ago to my friend, Mr Latham, that you had a conversation with Mr Yee about going back to work because you needed the money and you said that that was on Monday night?---That's right.
What was the basis upon which you said that it was Monday night? Was it by reference to the time that you started work or was it by reference to something else?---By reference to start to work and he said to me, Just to go work and join the union. That's what he said to me.
Was that conversation the night before you commenced work?---That's right, the night before.'
In summary, I think that Mr de los Reyes maintained, in the course of his viva voce evidence, the essence of his affidavit evidence, and did so to my observation in an essentially credible way.
90 Mr Yee's affidavit evidence concerning the critical coffee shop meeting was as follows, his initial account below occurring prior to Mr de los Reyes joining that meeting:
Mr McGahan: 'I understand you have hired somebody… Now I understand he used to clean the toilets and amenities on the site.'
Mr Yee: 'Yes. I informed Alan and he is aware of that. He would spend two hours, twice a week cleaning the amenities.'
Mr McGahan: 'And you were hiring him under an ABN.'
Mr Yee: 'Yes. He has his own cleaning company.'
Mr McGahan: 'Is he a Director of the cleaning company.'
Mr Yee: 'Yes. I suppose so. I have not checked.'
Mr McGahan: 'You want me to do a search?'
Mr Yee: 'Joe, I honestly don't know the affairs of his company.'
Mr McGahan: 'Well have you checked whether he has appropriate workers compensation and public liability.'
Mr Yee: 'No. I assume that those matters have been dealt with by Rodney.'
Mr McGahan: 'Does his company hire any employees.'
Mr Yee: 'I don't know. You have to ask him.'
Mr McGahan: 'Can you ask him to come over to the coffee shop?'
Mr Yee: 'Yes. I'll call him over.'
Mr Yee's above reference to 'Rodney' was of course to Mr de los Reyes.
91 Several minutes later, according to Mr Yee, Mr de los Reyes joined the conversation in the coffee shop, and the following was said:
Mr McGahan: 'Are you a Director of your company.'
Mr de los Reyes: 'Yes.'
Mr McGahan: 'Do you hire any employees?'
Mr de los Reyes: 'No. Only my wife and son help me sometimes.'
Mr McGahan: 'They get a wage do they not?'
Mr de los Reyes: 'Yes. I suppose so.
Mr McGahan: 'Well we would like to see your workers compensation, public liability and wages books for the past six months.'
Mr de los Reyes: 'Oh, I'll have to talk to my accountant about that.'
I should interpolate to record that Exhibit R1 disclosed that for the period from 2 July 2002 to May 2003 (both months inclusive), Phoenix made payments of wages to Mr de los Reyes at the gross monthly wage of $833,33 less income tax, and to each of Elizabeth de los Reyes and Eduardo de los Reyes of $667.67 less income tax.
92 Thereupon Mr McGahan produced a white form, Mr Yee recognising it to be a CFMEU union membership application, and the conversation in the coffee shop continued as follows, according to Mr Yee's affidavit evidence:
Mr McGahan: 'Why don't you join the union?'
Mr de los Reyes: 'I am already in another union and I have been there before. I don't really want to join the union.'
Mr McGahan: 'OK, if you don't want to join the union. That is fine. That is all, thanks. I have finished with you.'
Mr de loss Reyes then left the coffee shop, and Mr Yee deposed further that Mr McGahan turned to him and said:
'He is not to work on the site until he produces his workers compensation, public liability and wages books. And there is no negotiation on this.'
Mr Yee testified that no such request had been made by Mr McGahan or Mr Blevin during the time Mr de los Reyes had been engaged as a part-time cleaner on the Clifton Apartments site.
93 Mr Yee continued his narrative of the coffee shop conversations, in the ensuing absence of Mr de los Reyes, as follows:
Mr Yee: 'But I am not hiring him as a company. He is a direct employee on wages covered by our workers compensation and I have the forms to prove it.'
Mr McGahan: 'I am not interested in that. He was working as a company cleaning the amenities. We want to see all his documentation.'
Mr Yee: 'Yes, he was working as a company but now he is on wages. What is the problem?'
Mr McGahan: 'I am not going to have an argument about this with you Ben. Until he shows us all the documentation he is not to work on the site and that's that.'
Mr Yee: 'I'll have to talk to Rodney and see about his paperwork.'
Messrs Yee and Zoratto thereafter departed from the coffee shop meeting and returned to the construction site office. It is readily apparent from the documentary records of Bakkante in evidence that computed from and including 27 November 2002, being Mr de los Reyes' date of commencement of construction work for Bakkante, Mr de los Reyes was paid wages or salary by Bakkante, but as I have already indicated, his first week's wages from Bakkante were not apparently payable, nor in fact paid, until what appears to have been seven days later on Friday, 29 November 2002.
94 Subsequently on the same day of the coffee shop meeting at about 2.00pm, according to the further affidavit testimony of Mr Yee, the following conversation occurred between Mr Yee and Mr Blevin, Mr Zoratto being also present (or at least Mr Yee 'thought so'):
Mr Blevin: 'Why isn't he off site yet?'
Mr Yee: 'Well, I am going to let him complete the day and I will talk to him about his paperwork tonight.'
Mr Blevin: 'That isn't good enough. You heard what Joe McGahan said. He is not to work further until he comes up with his paperwork.'
Mr Yee: 'No that is not what Joe McGahan said.'
Mr Blevin: 'I am going to call Joe McGahan right now and he is to stop work.'
Mr Yee's affidavit account continued to the effect that Mr Blevin thereupon stepped outside Mr Yee's office, and Mr Blevin subsequently returned and requested Mr Yee to telephone Mr McGahan; that telephone call was said by Mr Yee to have been then made by him to Mr McGahan, and according to Mr Yee, the following conversation thereupon took place:
Mr Yee: 'About what we discussed today, Rodney can still work while we are sorting this out can't he?'
Mr McGahan: 'No. I said he is to stop work.'
Mr Yee: 'Surely not immediately.'
Mr McGahan: 'Yes. Immediately.'
Mr Yee: 'Look Joe, he is on the wages books. He is not working under ABN anymore so what is the problem? It is just a technicality.'
Mr McGahan: He is to stop immediately. I am not going to have an argument with you about it.'
Mr Yee: 'Joe, the only reason why you are doing this is because he won't join the union. Is that it?'
Mr McGahan: 'It has nothing to do with the union. He is not to work on that job.'
Mr Yee: 'Well, I think it stinks that you are doing a bloke out of a job just because he doesn't want to join the union.'
Mr McGahan: 'When he gets the right paperwork, we will see.'
Mr Yee: 'Whatever.'
That telephone conversation between Mr Yee and Mr McGahan, according to Mr Yee's evidence, then concluded. I would observe that despite Mr Yee's assertion that Mr de los Reyes was 'on the wages books', the fact was that his first week's work had not yet been completed, and thus he had not received his first week's pay. If Mr Yee's above account was substantially accurate, it would have been at least extraordinary for Mr McGahan to have demanded that Mr de los Reyes cease work on the site until his 'paperwork' was produced for Mr McGahan's satisfaction, particularly since Phoenix's on-site cleaning work had previously ceased.
95 Later that day, according to Mr Yee's affidavit evidence, Mr Yee asked Mr de los Reyes 'about his paper work', and Mr de los Reyes told him that he had public liability insurance, but not workers compensation insurance. Mr de los Reyes then said, according to Mr Yee:
Mr de los Reyes: 'It looks like I am causing you guys too much trouble on site. It is best that I not come back.'
Mr Yee: 'I don't think that you should be scared by these people just because you won't do what they want you to do. It is a free country.'
96 On the following day, which was Friday 29 November 2002, Mr de los Reyes did not report for work at the Clifton Apartments site, for which day he was not paid wages by Bakkante. Mr Yee deposed in his affidavit that he spoke to Mr de los Reyes about his absence, and that Mr de los Reyes replied:
'If I went back to that site who knows what I might do if Alan provoked me further. I would rather not risk getting into trouble or getting your company into trouble.'
Mr Yee further deposed in his affidavit that he subsequently rang Mr Glass and asked him to attend the building site, so that he could show him that Mr de los Reyes was being paid wages by Bakkante. Mr Glass came to the site on 4 December 2002, that being the following Wednesday, and therefore about a week or more after Mr de los Reyes had commenced full time construction work for Bakkante. Mr Yee recounted the following conversation with Mr Glass which then occurred on site between he and Mr Glass:
Mr Yee: 'Look if you still want him to join the Union, he is willing to join the Union, and we will pay for his union fees'.
Mr Yee thereupon showed Mr Glass the pay slips and Mr de los Reyes' tax file declaration; after viewing the same, Mr Glass said, according to Mr Yee:
'I don't see any problem with Rodney returning to work.'
If that evidentiary account of Mr Yee is to be accepted, the applicant's case is thereby enhanced.
97 Mr Yee's affidavit evidence continued to the effect that Mr de los Reyes remained absent from work on the Bakkante construction site for the ensuing four days, for which absence he was not paid wages by Bakkante. Subsequently Mr de los Reyes said to Mr Yee 'OK, I need to work. I will join the union. I will go back to work next week'. When Mr de los Reyes returned to the building site, his evidence was that he saw Mr Blevin alone, and filled out an application form to join the Union handed to him by Mr Blevin, and handed it back, though whether to Mr Blevin directly or per medium of Mr Yee is unclear. The Union's receipt for dues of $193.63 plus GST dated 9 December 2002, said by Mr de los Reyes to have been paid by Bakkante to the Union, was tendered in evidence, the same purportedly relating to the period of time from 1 October 2002 to 31 March 2003. The Bakkante cheque butt of 10 December 2002 records that $213 in the aggregate was paid to 'CFMEU' for 'union fees for Rodney'; according to Bakkante's bank pass sheets, the cheque was duly honoured on 18 December 2002. Mr de los Reyes testified that thereafter he 'operated the Alimack on a regular basis on a logbook', under the supervision of Mr Osmankerim and Mr Blevin, being a machine which was described by Mr Yee, incidentally, as a hoist capable of carrying people as well as equipment. Significantly, it will be recalled that there was evidence adduced by the applicant to the effect that Mr Blevin had previously intervened to stop Mr de los Reyes operating the Alimack machine on site, soon after he had commenced construction work on the site.
98 Mr de los Reyes visited the construction site, according to Mr Yee, 'sometime' between 4 and 10 December 2002; on that occasion, Mr Yee deposed that he said to Mr de los Reyes:
'Look we will pay them the money. Just join up. That will keep them happy.'
Mr de los Reyes re-commenced work in the context, according to the applicant's evidence, of joining the Union, such re-commencement occurring subsequently to so doing. The following conversation was said by Mr Yee to have occurred between himself and Mr Blevin, after Mr de los Reyes' indication to him of a willingness to join the Union:
Mr Yee: 'I have cleared the issue up with David Glass and Rodney is willing to join the Union now'.
Mr Glass: 'OK, I will give him the forms to fill out'.
Mr Yee subsequently handed to Mr Glass the Bakkante cheque for $213.00 for Mr de los Reyes' union fees, though so it may be inferred, not contemporaneously with the application form being signed by Mr de los Reyes. Mr Yee testified that there had been no further demands thereafter made by or on behalf of the Union to inspect the wage records of Bakkante relating to Mr de los Reyes, a matter tending to support the applicant's case, and not put in issue by the respondents.
99 Mr Yee was cross-examined at some length in the proceedings, initially about matters not directly related to the applicant's statutory cause of action, such as the size of the Bakkante development, Lecan's financial collapse, the existence of unpaid on-site contractors as a consequence of that collapse, proceedings taken at the instance of some unpaid contractors in the Industrial Relations Commission, Mr Yee's prior inexperience in dealing directly with building subcontractors, and other earlier on-site incidents at least not directly related to the critical issues ultimately falling for resolution. Mr Yee was also cross-examined in some detail as to Mr de los Reyes' work on site as a part-time cleaner, that having been prior to the controversial events of his commencement of construction work as a full time employee of Bakkante.
100 When cross-examined in relation to the critical coffee shop meeting, Mr Yee said in response to issues thereby raised by Mr McGahan, relating to times prior to the arrival of Mr de los Reyes later in the course of that meeting, as follows:
(i) 'The issue of union membership was brought up virtually immediately';
(ii) no reference to 'an ABN being worked' was made at the meeting';
(iii) no references to the insurances of Mr de los Reyes, or to 'seeing his wage book', were made at the meeting;
(iv) he denied that his version of the coffee shop dialogue was 'wrong';
(v) Mr Glass was not present, to the best of Mr Yee's recollection;
(vi) he agreed that Mr McGahan raised 'concerns' or 'questions' about Mr de los Reyes 'working through a company', and 'complying with workers compensation legislation', and whether Mr de los Reyes 'had public liability insurance';
(vii) he did not recall whether 'issues in relation to wages to prove whether [Mr de los Reyes] was an employee' were raised; and
(viii) he agreed being asked whether Mr de los Reyes was a director of 'the cleaning company'.
101 Moreover when cross-examined, in effect as to his adherence generally to what he recorded by affidavit as to what occurred after Mr de los Reyes' joining the coffee shop meeting, Mr Yee answered in the affirmative. My perception was and remains that Mr Yee's affidavit evidence as to the critical dialogue at the coffee shop meeting, both before and after the arrival of Mr de los Reyes at the meeting, was unshaken.
102 Mr Yee was next cross-examined upon his affidavit testimony concerning his meeting with Mr Glass after the coffee shop meeting, when Mr Yee claimed to have shown to Mr Glass Bakkante's documentation relating to Mr de los Reyes' entry into Bakkante's employment; once again that evidence, which does not appear to have been ultimately controversial to any significant extent, was confirmed by Mr Yee. Other cross-examination of Mr Yee in relation to Bakkante records, albeit undertaken at some length, was largely inconsequential, and need not be recorded. By the close of his cross-examination, it was apparent that Mr Yee's adherence to his affidavit had not been materially diminished in terms of its accuracy or credibility.
103 Mr Osmankerim further testified by his affidavit evidence, in relation to Mr de los Reyes' absence from the building site, and subsequent return, as follows. About a week after the occasion which he recounted as having involved himself, Mr de los Reyes and Mr Blevin, Mr de los Reyes left the Pyrmont site of Bakkante's construction operations, and did not return for 'a couple of weeks', that being a longer time than specified more precisely by Mr Yee and Mr de los Reyes, and as appears from Mr Gunawan's affidavit evidence, to which Mr de los Reyes' wage records were attached. During that period of absence, Mr Osmankerim narrated in his affidavit that he said to Mr Blevin 'Alan, it looks like Rodney isn't coming back', the reference to 'Rodney' being of course to Mr de los Reyes, and that Mr Blevin replied 'I don't give a damn, I am not losing any sleep over it. All I wanted him to do is join the union. Everything would have been all right if he had joined the union'. On the following day, according to Mr Osmankerim, Mr Blevin further said to him 'I don't know why this is so difficult. I don't know why Ben [ie Mr Yee] doesn't pay the union dues or Rodney [pay] himself. It would have settled a lot of headaches'. Mr Osmankerim also recalled saying to Mr Blevin, sometime later during December 2002, 'Hey Alan, how come Rodney is working the Alimack', to which he said Mr Blevin replied 'I don't care because he is a proud CFMEU member, one of our brothers. Leave him alone'. That outcome to the Alimack controversy, not contradicted by the respondents' case, is a matter of substantial significance to the applicant's case. Mr Osmankerim concluded his affidavit testimony thus: 'Since then, I have not seen Rodney have any problems with Alan'. Nothing arose in the course of Mr Osmankerim's subsequent cross-examination to require otherwise than that I should fully accept the substance of his affidavit testimony which I have reproduced in these reasons.