C2001/3721, Transcript of Proceedings [2001] AIRCTrans 1704 (27 July 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8327
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/3721

FYNA CONSTRUCTIONS

and

CONSTRUCTION, FORESTRY,
MINING AND ENERGY UNION

Notification pursuant to section 99 of the Act
of a dispute re industrial action over potential
risk to workers at the Altona Fire Station
construction site

MELBOURNE

3.32 PM, TUESDAY, 10 JULY 2001

PN1

MR P. EBERHARD: I appear for VECCI on behalf of the company, and together with me is MR G. HANZ from Fyna Constructions.

PN2

MR R. WAINWRIGHT: I appear on behalf of the Construction, Forestry, Mining and Energy Union, and MR I. MARKHAM is with me.

PN3

THE COMMISSIONER: Yes, thanks, Mr Wainwright. Mr Eberhard.

PN4

MR EBERHARD: Commissioner, we have notified a dispute under section 99 of the Workplace Relations Act in regards to three matters. And those are the CFMEUs concerns relating to potential risk to workers as a result of alleged exposure to EMR emissions at the Altona Fire Station construction site. Secondly, the CFMEUs ban on work at the Altona Fire Station arising from point 1; and thirdly, the CFMEUs refusal to lift the ban on work at the Altona Fire Station.

PN5

Commissioner, this matter has been before the Victorian Building Industry Disputes Board and unfortunately no resolution has been able to be achieved from that, and for the Commission's benefit I will tender a copy of the report that was written as a result of the on-site hearing that was held with the Disputes Industry Board.

PN6

THE COMMISSIONER: Well, just before you tender that, Mr Eberhard, I don't really care what the Victorian Disputes Board has done. It is not an arm of this Commission.

PN7

MR EBERHARD: Oh, no, I understand that, Commissioner. It is as - - -

PN8

THE COMMISSIONER: I know you understand it, but I am making it clear, it is not. So what is your - I have not read it yet, so that it had better - - -

PN9

MR EBERHARD: All it was - - -

PN10

THE COMMISSIONER: Let me finish, it had better be pertinent to this matter.

PN11

MR EBERHARD: All it was for was for background information in regards to advising that it has been done.

PN12

THE COMMISSIONER: Well, I am not going to read it. You make your own submissions about that.

PN13

MR EBERHARD: What I will tender, though, Commissioner, is that there has been concerns from the CFMEU relating to EMR at the Altona construction site, and as a result of those concerns the CFMEU have directed the employees at the site to cease work.

PN14

THE COMMISSIONER: Yes.

PN15

MR EBERHARD: And the company Fyna Constructions have spoken to the CFMEU and had engaged a company called Eva and Associates, that's E-v-a, and they have conducted two reports on the EMR levels at the Altona - - -

PN16

THE COMMISSIONER: Do you have a copy of those reports?

PN17

MR EBERHARD: I do, Commissioner.

PN18

THE COMMISSIONER: Tender them. Is it one report or two reports?

PN19

MR EBERHARD: It is two reports.

PN20

THE COMMISSIONER: Okay.

PN21

MR EBERHARD: That is the second one, and that is the first one.

PN22

THE COMMISSIONER: Pass them along to Mr Wainwright, please.

EXHIBIT#A1 REPORT DATED JUNE 2001

EXHIBIT#A2 REPORT DATED JULY 2001

PN23

THE COMMISSIONER: Yes. When you are ready, Mr Eberhard.

PN24

MR EBERHARD: Sorry, Commissioner. If I take the Commission to exhibit A1, which is the June 2001 report.

PN25

THE COMMISSIONER: Yes.

PN26

MR EBERHARD: In regards to point 4 which is about halfway down of the first page of the actual report, rather than the - and it is headed: Exposure Guidelines, and I quote from the - - -

PN27

THE COMMISSIONER: Yes.

PN28

MR EBERHARD: - - - from that part:

PN29

There are apparently no Australian standards regulating exposure to those fields -

PN30

which is - and it's talking about the EMR situation:

PN31

The National Health and Medical Research Council has issued interim guidelines on limits of exposure to 50 to 60 Hz electric and magnetic fields.

PN32

And then the next sentence continues:

PN33

These guidelines are aimed at preventing immediate health effects resulting from exposure to these fields. The recommended magnetic field exposure limit for members of the public (24 hour non-occupational exposure) is .1 millitesla -

PN34

which is 1000 mG, which is a milligauss. And for occupational exposure which is a whole working day is .5 of a millitesla. Now, at the end in the results which is on the next page in .5, what the company found - and that is Eva and Associates found, and I quote:

PN35

All results were found to be below applicable emissions/exposure guidelines. Maximum magnetic field strengths were measured under the powerlines located along Kororoit Creek Road. The measurements were found to be in the range of 4 to 5 mG, well below the general public -

PN36

and that's underlined by in the report -

PN37

- exposure guidelines of 1000 mG.

PN38

And for the moment I will leave that report and refer to the second report, which is exhibit A2, which is the July 2001 report.

PN39

THE COMMISSIONER: Yes.

PN40

MR EBERHARD: And in .2 of the - of this report on the second page, on the fourth line down it starts that:

PN41

The RF EME exposure limit to 200 microwatt per centimetre squared.

PN42

And then there is a calculation there:

PN43

All measurements were made at the height of 1.5 metres with the use of a non-conducting tripod.

PN44

In the summary the company again finds that:

PN45

RF EME levels have been measured from the existing antennas located at the corner of Grieve Parade and Kororoit Creek Road, Altona. The maximum cumulative exposure level at 1.5m above ground level was measured to be 0.002.

PN46

And that indication there is the RF EME exposure level at all locations measured:

PN47

This level complies with the limit established by the standard declared by the Australian Communications Authority and is 0.001 per cent of the general public exposure limit of 200 RF EME which is applicable for the RF EME generated by cellular phone base stations.

PN48

Now, Commissioner, I certainly don't want to be questioned extensively over what the report actually means, because in all honesty I can't really help you out in that, but the company had taken that on board and had spoken to representatives from WorkCover and WorkCover had attended the site and, as I understand it, had read the reports and believed the reports were accurate. And as a result WorkCover were not concerned with work continuing on. That is the indication that I have had from Mr Hanz in regards to this.

PN49

The company Fyna Constructions is concerned that they have endeavoured to resolve the CFMEUs concerns in regards to potential exposure to EMR and to other sources. In fact, the second report which is the July 2001, which is exhibit A2, is actually an extension in the fact that that is the cellular mobile phone towers and that was considered that there could have been a potential problem there, even though there was not actually a problem as indicated by the union.

PN50

We are concerned that there has been no acknowledgment from the union with respect to the reports and there has been no acknowledgment from the union with respect to any timeframe of recommencement of work and with the Commission's assistance we would like to try and resolve this matter and we would suggest that after the union have their matter on to transcript that if acceptable to yourself, Commissioner, that we would adjourn into conference and try and resolve the matter. If the Commission pleases.

PN51

THE COMMISSIONER: Yes, thank you. When you are ready, Mr Wainwright.

PN52

MR EBERHARD: Thank you, Commissioner. Well, the company's representative has made it clear that he is no expert in these matters and I have to confess the same. I can't make head nor tail of these reports, but the CFMEU - - -

PN53

THE COMMISSIONER: A bloke who gets around with a mobile phone stuck to his ear all day, I suggest you read it.

PN54

MR WAINWRIGHT: I keep the use of the mobile phone to the minimum, Commissioner.

PN55

THE COMMISSIONER: Yes, oh, yes.

PN56

MR WAINWRIGHT: I hang up on people.

PN57

THE COMMISSIONER: You mean you do your best, don't you.

PN58

MR WAINWRIGHT: I do my best. But Commissioner, we do pay people in the CFMEU to be expert on matters of industrial health and safety and safety.

PN59

THE COMMISSIONER: Who is your expert in respect to EMR?

PN60

MR WAINWRIGHT: Pat Preston is our expert.

PN61

THE COMMISSIONER: And how long has he been a expert in respect to EMR when it is a field that is just under debate?

PN62

MR WAINWRIGHT: He is much more learned on the subject than I am.

PN63

THE COMMISSIONER: In his own view.

PN64

MR WAINWRIGHT: In his own view.

PN65

THE COMMISSIONER: Yes, that's right.

PN66

MR WAINWRIGHT: Yes.

PN67

THE COMMISSIONER: Yes.

PN68

MR WAINWRIGHT: And he is the best thing we have got going for dealing with these issues.

PN69

THE COMMISSIONER: Yes.

PN70

MR WAINWRIGHT: And Pat - - -

PN71

THE COMMISSIONER: What about the WorkCover Authority? You reckon he knows more than the WorkCover Authority?

PN72

MR WAINWRIGHT: Well, I was going to ask questions about the WorkCover Authority and seek some - - -

PN73

THE COMMISSIONER: I have got some questions to ask about that in a moment,

PN74

MR WAINWRIGHT: - - - seek some clarification on the submissions of the company.

PN75

THE COMMISSIONER: Yes. In fact, I think before you proceed, I don't want to interrupt you, sit down for a moment. Mr Hanz, is it?

PN76

MR HANZ: Mr Commissioner.

PN77

THE COMMISSIONER: Have you got a copy of a report from WorkCover?

PN78

MR HANZ: WorkCover declined to give me a written report, but they did two site inspections.

PN79

THE COMMISSIONER: Who was involved from WorkCover?

PN80

MR HANZ: Tracy Brewer.

PN81

THE COMMISSIONER: Tracy - - -

PN82

MR HANZ: And - - -

PN83

THE COMMISSIONER: Hang on.

PN84

MR HANZ: Brewer.

PN85

THE COMMISSIONER: I presume it's B-r-e-w-e-r, that will do for a start. And who else?

PN86

MR HANZ: And Mr Don Orr, O-r-r.

PN87

THE COMMISSIONER: Don Orr. Did they give you a reason as to why they declined to give a written report?

PN88

MR HANZ: They attended the site when the ban was first place to look at the whole site in its entirety and didn't issue any prohibition notices. They rang me and said that they couldn't find anything on the site that would inhibit work recommencing. I then sent them copies of the report and they attended the site again to do a specific inspection in relation to the proximity of the towers and the power lines on Tuesday morning of last week. They phoned me - that is, Don Orr - phoned me back on Tuesday afternoon and said, we have considered the reports that you have given us and we believe that the recommendations and results found the reports are accurate and there is - - -

PN89

THE COMMISSIONER: Now, when you referred to the reports, are you referring to these two reports from Eva?

PN90

MR HANZ: That's correct. That's correct, Commissioner, both of those reports.

PN91

THE COMMISSIONER: Yes, thank you.

PN92

MR HANZ: And he went on to say that their - that is, WorkCover's - interpretation of those reports led them to believe that there was nothing within the reports that would prevent recommencement of work.

PN93

THE COMMISSIONER: Thank you. That might help you one way or the other, Mr Wainwright. Now you know as much as I know.

PN94

MR WAINWRIGHT: It does in relation to Mr Brewer.

PN95

THE COMMISSIONER: Yes.

PN96

MR WAINWRIGHT: We have got some knowledge of what his abilities are.

PN97

THE COMMISSIONER: I think it's Ms Brewer, Tracy.

PN98

MR WAINWRIGHT: I think it's a - - -

PN99

MR HANZ: Mister Tracy Brewer.

PN100

THE COMMISSIONER: Mister Tracy.

PN101

MR HANZ: That's right.

PN102

MR WAINWRIGHT: We have come across him before, your Honour. I've not - - -

PN103

THE COMMISSIONER: What does that mean?

PN104

MR WAINWRIGHT: - - - dealt with Mr Orr.

PN105

THE COMMISSIONER: What does that mean, you've come across him before?

PN106

MR WAINWRIGHT: I have seen some of the reports that he has prepared on other building sites.

PN107

THE COMMISSIONER: And?

PN108

MR WAINWRIGHT: My opinion of them is not high, but - - -

PN109

THE COMMISSIONER: Well, hang on, just hang on, Mr Wainwright - - -

PN110

MR WAINWRIGHT: What I will say, Commissioner, is that his experience - - -

PN111

THE COMMISSIONER: I know you are used to working with some of my former colleagues in New South Wales. Don't come in here shitcanning people unless you've got some evidence.

PN112

MR WAINWRIGHT: Well, what I will say, Commissioner - - -

PN113

THE COMMISSIONER: Okay. I don't care if - I don't care if you've got a high opinion or a low opinion. Don't attack people if they're not here.

PN114

MR WAINWRIGHT: Well, his history, his work history is in the construction industry.

PN115

THE COMMISSIONER: His work history is not in contention here.

PN116

MR WAINWRIGHT: Yes, but what I am saying is he has no technical expertise, to my knowledge, on any of these issues.

PN117

THE COMMISSIONER: Well, that is a presumption. Look, I don't want to bandy the point around, you started telling me how much Pat Preston had. I think he's full of crap half the time. So if we want to get down to opinions, now, let's get down to the bloody facts and fix the matter up.

PN118

MR WAINWRIGHT: Well, that is what I am trying to get to, Commissioner, and I will tell you what has occurred - - -

PN119

THE COMMISSIONER: And I want to know what is really behind the dispute, too, by the way.

PN120

MR WAINWRIGHT: What is behind the dispute - - -

PN121

THE COMMISSIONER: Yes, really behind the dispute, yes.

PN122

MR WAINWRIGHT: - - - are the issues that the company has outlined.

PN123

THE COMMISSIONER: Yes. Are they?

PN124

MR WAINWRIGHT: The CFMEU has spoken to the company about the issue of occupational health and safety at the site. Pat Preston has spoken to a representative of the company, he believes it was the Project Manager, and he spoken to him again last Friday. Now, Pat Preston's proposal to the company to overcome the issues that we have identified, certainly what we see as being valid issues, are that there should be a working group put together that involves ourselves, involves the company, perhaps the Metropolitan Fire Board, but certainly an independent consultant that has more knowledge on the technical issues than any of the other parties.

PN125

We have some problems with the guidelines that are being used and the way they have been developed. We note that they are guidelines that the consultants have had reference to. We believe that the sooner this working group is put together and can get on with its work, then the sooner we can overcome, as I have said, what we see as being valid safety issues at the site. And we look forward to having some discussions with the company today.

PN126

THE COMMISSIONER: And how long is this working group going to take? And what is it going to look at?

PN127

MR WAINWRIGHT: Well, I suspect that the working group will take some time to work through the issues.

PN128

THE COMMISSIONER: Yes.

PN129

MR WAINWRIGHT: The two reports that the company has put today deal with the power lines and with the radio tower, but there is no discussion of the interplay between the magnetic fields between the two. They are kind of taken as separate entities, but both obviously impact on the site out there.

PN130

THE COMMISSIONER: Can you tell me as a guess how many members you have got working within 500 metres of the Rialto Towers?

PN131

MR WAINWRIGHT: As a guess - - -

PN132

THE COMMISSIONER: Well, how many members have you got on Docklands?

PN133

MR WAINWRIGHT: I've got no idea how many members we've got.

PN134

MR MARKHAM: 2000.

PN135

MR WAINWRIGHT: 2000, Mr Markham says.

PN136

THE COMMISSIONER: Yes, I thought so. Why aren't concerns being raised about their exposure to EMR?

PN137

MR WAINWRIGHT: Well, I'm not aware that concerns aren't being raised about their exposure.

PN138

THE COMMISSIONER: Aren't being raised?

PN139

MR WAINWRIGHT: I'm not aware that they're not being raised. What I am saying is, in relation to this particular project we have not only the power lines, but a radio tower in the near vicinity creating two problems.

PN140

THE COMMISSIONER: The same problem down - and a microwave tower beaming straight across the Docklands with a repeater station.

PN141

MR WAINWRIGHT: Well, I am sure that they are concerns that we will address.

PN142

THE COMMISSIONER: You wouldn't move them off there with a bloody machine gun. Well, I'm not going to order investigations into anything. It's not for the Commission to be involved in that.

PN143

MR WAINWRIGHT: Well, Commissioner, for our part we have put a proposal to the company. We - - -

PN144

THE COMMISSIONER: Yes, yes, I heard what you said.

PN145

MR WAINWRIGHT: We are keen to hear what they say about that?

PN146

THE COMMISSIONER: I'd say what my position is and to be frank without more information about the issues, and I know at the moment radiation from power lines, towers, mobile phones or anything else is - for the worst description, an emotive issue at the moment. There seems to be every time you ask a question of a so-called expert you get five other expert opinions that don't agree with anything. We will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED