In August, Lomax appeared in the ACT Magistrates Court to face a single blackmail charge – that in 2013 he demanded a painting company pay its employees above the minimum rate.
Police allege Lomax threatened Nel Trading it would face commercial consequences if it didn’t sign an enterprise agreement and that, as a result of paying more than $17 an hour, it had suffered a Lomax-induced loss.
The problem for every worker in Australia is that bids for wage increases have never before resulted in criminal action. Indeed, for more than 100 years federal and state parliaments have directed such cases to industrial jurisdictions.
The immediate difficulty for Lomax, and his family, is the Australian Federal Police has confirmed its charge carries a possible 14-year prison sentence.
And the underlying issue for all Australians is that this action carries the whiff of state agencies, some boasting coercive powers, being drafted to a partisan political agenda.
Industrial relations has been a thoroughly debated political issue, at least since 2005 when John Howard’s Government introduced WorkChoices.
The Australian people overwhelmingly rejected that regime which sought to slash wages and undermine collective bargaining.
In its place, the parliament established a range of legal minimum rates, known as awards, as a safety net for a system based on collective enterprise bargaining.
The government made it clear it expected the majority of working people would be covered by enterprise agreements.
Australian parliaments have also legislated for workplace safety regimes that give authorised, trained safety representatives the right to enter sites and carry out inspections on the grounds of reasonable suspicion.
Tony Abbott, for one, said he accepted the people had spoken and pledged workplace rules would not be tampered with if he was elected prime minister.
But, on election, he beefed-up his Fair Work Building Commission (FWBC) by re-appointing hardliner Nigel Hadgkiss to the top job.
Hadgkiss had famously walked out of the position when the Gillard Government decided that, besides chasing union members, the Commission Inspectorate would also police employers who were ripping off workers.
Since Hadgkiss returned to the post, his FWBC has run relentless interference on CFMEU effort to negotiate enterprise agreements and improve workplace safety.
Then Abbott launched his trade union royal commission, tipping another $60m into that exercise.
That commission has chosen to hear evidence from witnesses who consistently challenge union attempts to negotiate collective agreements and carry out safety inspections.
Commission counsel chose witnesses with dubious records to present weeks of evidence in Canberra.
Some testified the Hadgkiss Inspectorate had helped them block safety inspections on their sites.
Senior Counsel Jeremy Stoljar learned FWBC officers had expressed dismay when Canberra-based police initially pointed out union officers had rights under Workplace Health and Safety (WHS) legislation.
MR STOLJAR : I am endeavouring to summarise and tell me if this is fair or not and it may not be, did the police officers express some reluctance to get involved?
Q. — in a civil dispute of this kind?
A. They did, and I was disappointed, to be honest with you, and then I think after that the Fair Work Building Commission boys came out and they said, “Look, we apologise, you know, we gave you the advice to call the police and they were – and they actually were – couldn’t do anything about it”, and they advised me that those police were misinformed.
This reluctance, however, didn’t last last long as AFP Det Sgt Mark Battye told the commission.
He said he had been an AFP team leader in Canberra when he heard an employer ask for help on police radio, alleging union officials were “causing a disturbance, interrupting work, threatening people and refusing to leave”.
Battye learned two officers were already at the site and not only decided to join them but instructed another patrol to get to the area, as well.
Battye said he accepted the word of employer, Darrell Leemhuis, that people had been “threatened” and demanded union officials leave.
By way of background, Leemhuis had earlier told the commission events had been videotaped by one of his apprentices because he had thought they were “comical”.
And his brother and foreman, Russell Leemhuis, agreed he had told one of the union safety reps …
“Get the fuck off my site, this is private property.”
Battye said one union official had tried to intimidate him and he had threatened that person with arrest. He identified him as “John Lomax” whom he described as being of “Pacific Islander appearance”.
Battye’s intimidation claim led nearly all media coverage of the day’s events.
He defined intimidation as Lomax trying to snatch back his safety card and “encroaching on my personal space”.
The Det Sgt, presumably armed, described encroaching on his personal space during a conversation, as coming within “between 1m and 1.5m”.
Under cross examination, he admitted he had arrived on site with little idea of the rights of union officials although, he said, they had tried to tell him and he had read Lomax’s permit.
Battye: I didn’t know too much about it, to be honest.
Q. Let me put it this way: what did you know about the law that related to the right of entry of Union officials in relation to work, health and safety matters?
A. Not much.
Q. What is “not much”?
A. Well, when I turned up and Mr Lomax flashed a card in front of me, I requested his card so I could write down exactly what was on there.
Q. Now, what about addressing my question: what did you know – precisely, what did you know about the law concerning the right of entry of Union officials in relation to work, health and safety matters?
A: Not much.
Battye then said he had not interviewed, or taken a statement, from any of the workers Leemhuis claimed had been threatened.
Q. Did any other police officer do it?
A: Not to my knowledge.
Q. So, you thought that Mr Leemhuis had authority to speak for these people who had been threatened?
A. That’s correct.
In evidence led by Stoljar, Battye had denied a claim, apparently contained in a Lomax witness statement the commission has not yet admitted into evidence, that he had accused union officials of trespass.
If true, of course, it would cast doubt on his knowledge of their rights and his handling of handling of that day’s events. Stoljar broached the subject gently.
Q. What he says – and I am just going to put this to you for your comment – is that you approached him and you said to him words to the following effect, and I just want you to listen to this and tell me if you agree whether or not you said this ,”You are trespassing.” Did you say that to him?
But, in answer to Stoljar’s next question, the policeman said he had told Lomax:
“I need to see some identification, because we were called in relation to a trespass and as far as investigating any offence that may have occurred, I require the identity of persons present.”
It was a point union counsel John Agius tackled in cross examination.
Q. Did you say: “In any event, I need to see some identification because we were called in relation to a trespass.” Did you say that to Mr Lomax?
A: No, I didn’t say that.
Q. Well, why is it in your answer?
A. I was seeking to explain why I needed identification.
Pressed again, the officer put on another sidestep.
A. Two and a half years ago, I can’t remember the exact words. It’s quite a lengthy conversation …
Stoljar also invited the police officer to answer another suggestion, apparently contained in Lomax’s witness statement.
Q. Once you saw his name and noted it down, did you say this to Mr Lomax, “Oh, that’s a familiar name, have you got relatives here that cause trouble”?
A. Definitely not.
What Battye did not deny is that he knew full well Lomax held a valid ACT WHS Entry Permit, issued in the name of Johnny Lomax and subject to “nil” conditions. We know that much because it is recorded in his written statement.
Battye said, at the end of their conversation he had warned Lomax: “I’m going to look into this further and I might see you and your friends in court in the future about this”.
What neither the AFP, nor the royal commission, has told the public about the August blackmail charge, is that Lomax put his claim for industry standard wages on the painting company shortly after the principal had been at the centre of allegations about underpaying foreign workers.
Only weeks before the royal commission arrived in Canberra, CFMEU branch secretary, Dean Hal said 10-12 AFP officers had turned up on a Turner building site and thrown off union officials trying to investigate “serious safety issues”.
“The AFP is making it a number one priority to intervene on behalf of builders to stop our legal right of entry,” Hall told the Canberra Times.
“When did the AFP become some expert on safe building practise?”
In the final week of its Canberra hearings, Johnny Lomax – CFMEU organiser and 16-Test rugby league international – became the first person in Australia to be charged with a crime on the basis of demanding a wage increase.