The Gap Road saga playing out at the Big Build royal commission opens an extraordinary window into how the CFMEU took control of major projects in the state of Victoria.
The hearings this week have shown two things. The CFMEU used brute force, regardless of the law, to muscle their way into civil construction in 2022, and the government of Daniel Andrews smoothed their way, with menaces.
Just sitting in the sterile royal commission hearing room, you can feel the pressure on the construction companies removing the Sunshine level crossing in June 2022.
Within a strict 30-day deadline, working 24 hours a day, contractors under John Holland and CPB had to rip up the rail line, relocate utilities, build a bridge over Gap Road and install rails over it so that trains could run again.
For that month-long site takeover – called an “occupation” – the train line was closed, relegating passengers to bus replacements, and the entire network suffered disruptions.
The cost of failure was high, reputationally and financially. The contractors were liable for $750,000 a day and, if they had to come back again, another occupation might take six months or more to book in.
It was at this time, the time of highest vulnerability, that the CFMEU’s most militant operators – senior official Joe Myles, and Paul Tzimas – struck. They wanted to dictate terms.
So on Monday, June 6, 2022, multiple officials stormed in and shut it down. They occupied the occupation.
“I don’t think they were allowed to enter. I think they just entered,” crane operator and health and safety rep Glenn Tyrrell told the commission on Tuesday.
“They would stand in front of machinery and plant and just tell the operator that he must stop it.” Tzimas sat on a water barrier. Both, in themselves, breaches of safety provisions. He filmed workers trying to do their jobs, suggesting they would be personally targeted.
And when staff from the piling contractor, Wagstaff, turned up to work that evening, the CFMEU officials told them “f--- you” and threatened to make their lives personally difficult. The workers “did not wish to work tonight under this pressure”, according to a note tendered to the commission.
The union officials were there purportedly under their right to enter a site to address an occupational health and safety risk. They cited an array of bogus faults: foul weather, risk assessments required on particular pieces of machinery or just that the site was generally “unsafe”.
Steve Testolin, a general superintendent for John Holland, spent that day walking around the site listening to their demands. He did not sleep on the night of June 6, he said, knowing the next day would be the same.
Arguably the union was breaking various laws. Breaches of rights-of-entry provisions and safety provisions; threats and intimidation; trespass.
Neil Thompson, the site’s health and safety manager and a supervisor, Robert Van Den Tol, called both police and WorkSafe.
Victoria Police – the agency Jacinta Allan repeatedly said people should complain to if they had a problem on the state’s Big Build projects – turned up, then left again, saying it was an industrial issue. WorkSafe did not show – at least not in time.
So the builders appealed to the contractors – state government agencies. Those agencies appealed higher still.
On Friday, the most senior public official yet to give evidence, Rail Projects Victoria chief operating officer Peter Wilkinson, said he had talked to his boss, Evan Tattersall, the chief executive, about what was going, on. Tattersall called the office of the minister, Jacinta Allan.
In the Harry S. Truman adage, the minister’s office is where the buck is supposed to stop.
Instead, the minister’s office passed it back down the line. Tattersall relayed the message to Wilkinson: “If they [the contractors] can’t handle the industrial [relations] in Victoria, then they can’t have any more work.”
Not only did Allan’s office tell the consortium, under unimaginable pressure, to do a dodgy deal with the CFMEU, they added a threat. Nobody even took a note of the interaction.
It left the construction companies with no choice. They were dragged, humiliatingly, to the union office to do a deal that favoured the side which had arguably broken the law. Consortium delivery director Stephen Villella said it felt like being told to “bend the knee”.
And the buck? Well, it ended up firmly in the pockets of the CFMEU.
Their preferred labour hire firm, BK Labour – whose officers have since been charged with fraud and corruption offences – got exclusive access to the Gap Road site, along with the union’s preferred traffic company, and two paid, full-time health and safety reps.
Costs went up, but wages did not, according to crane driver Tyrrell. And taxpayers ultimately footed the bill.
At any point, any Victorian government agency could have stood up to the union, invoked the law and put a stop to its excesses. Nobody did. Were they also scared?
It remains unclear who in the “minister’s office” was on the phone to Tattersall that day, and what the minister herself knew about it. We can only hope that, with all the documents now belatedly and reluctantly being yielded (unredacted) to the commission, we’ll eventually find out.
Another question also lingers: why was the Andrews-Allan government so in thrall to the CFMEU? Or was it simply the way business got done in their Victoria? A verbal threat, an indifference to the law, and a great big bill for the taxpayer.
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