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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER HARRISON
C2001/3622
H.W. THOMPSON PTY LIMITED
and
CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION
Notification pursuant to section 99 of the
Act of a dispute re attendance by CFMEU
organiser at the company's building site
at Clyde Road, Dee Why etcetera
C2001/3741
RESTRICTIONS IN TORT
Application under section 166A of the
Act by A.H. Thompson Pty Limited re
industrial action regarding performance
of contracts in employment etcetera
C2001/3745
H.W. THOMPSON PTY LIMITED
and
CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION - CFMEU, FFTS UNION
NSW DIVISIONAL BRANCH
Application under section 127(2) to stop
or prevent industrial action
SYDNEY
9.40 AM, WEDNESDAY, 25 JULY 2001
Continued from 17.7.01
Hearing continuing
PN1851
THE COMMISSIONER: Good morning, gentlemen.
PN1852
MR MURRAY: Good morning, Commissioner. If I may, I would like to proceed with the cross-examination of Mr Rech who is in the box now.
PN1853
THE COMMISSIONER: Yes. I will not re-swear Mr Rech. There is no need to be re-sworn, I do not think.
PN1854
MR MURRAY: Thank you, Mr Rech. You are an Inspector of WorkCover. In fact, you are the Chief Inspector for the Construction Sector I think you said last time we were here?---I wish I was. I'm the State Coordinator for the Construction Team.
PN1855
Perhaps an inadvertent promotion, but you are the State Coordinator for the Construction Team and therefore you have inspectors report to you who inspect construction sites?---That's correct.
PN1856
Normally you proceed on the basis of inspections of sites, do not you?---I try and avoid them but on some occasions I do proceed to inspection sites, yes.
PN1857
It would not be usual for you then to identify or inspect a site by means of photographs, would it?---No, it's not.
PN1858
In fact, proceeding on the basis of photographs is somewhat risky, is it not?---The inspectors conduct an inspection of the site and produce photographs which I review. I wouldn't say it's risky. It's dependent on what information they provide along with the photographic evidence, the oral supporting documentation along with it.
PN1859
Yes. In the case of your statement, however, you are not going off photographs produced by an inspector, are you?---That's correct.
PN1860
You are going off photographs produced to you by, or on behalf of Mr Mitchell. Is that correct?---I'm led to believe that Mr Mitchell took the photographs, yes.
PN1861
So in that particular circumstance you are relying upon the photographs as being accurate?---That's correct.
PN1862
You are relying also on whatever supporting information you have about the photographs and when and where they were taken?---That's correct.
PN1863
You are somewhat vulnerable, are you not, to being misled should the photographs not show all the detail on a site?---That's correct.
PN1864
If, for example, they are taken from a particular angle that does not reveal all the information about a site?---That could be the case, yes.
PN1865
Or if they are taken in a way that distorts perspective perhaps?---That's correct.
PN1866
So as I put to you before, it is somewhat risky to proceed on the basis of photographs, particularly in those circumstances, is not it?---Well, it's risky in a sense that you can only go by the evidence that's provided to you, but there is a risk associated with it, yes.
PN1867
Perhaps if we could go then to photographs number 11 and 12 in your statement?---Yes.
PN1868
These are photographs that have been produced already in these proceedings. In fact, they have been given exhibit numbers, MBA3 and MBA 4, Commissioner. They have also been described as being taken in about the first week of April of this year. Now, Mr Highfield went to the site at about that time, did not he?---I understand Mr Highfield did attend the site, yes.
PN1869
According to information provided under summons he attended the site in about the first week of April?---The date would be on that report.
PN1870
Perhaps just to assist you, if I could approach the witness and show him the report?---Mr Highfield attended the date he took the job on the 6th of the 4th and he attended, it would appear, on the 9th of the 4th.
PN1871
So Mr Highfield attended the site shortly after these photos were taken. That would be right, would not it?---I don't know when the photos were taken.
PN1872
If we take it that the photos were taken in about the first week of April?---Yes.
PN1873
If Mr Highfield attended the site on 9 April he has attended about the same time, has not he?---Yes.
PN1874
Now, this report here, this is a summary that you keep as a record of what took place when Mr Highfield attended the site. Is that right?---That's correct.
PN1875
If I might just approach again. I do not have a spare copy of this one. If I could just take you to roughly half-way down the page or a little above, you have got an inspector's report?---That's correct.
PN1876
What does that say?---He visited the site at 3 pm. There were two amenity sheds, one toilet. The starter bars were capped. The site was excavated at a depth of approximately four metres. I had no way of entering the site. I spent some considerable time contacting the builder as there was no builder sign on site. The building had to send me a copy of the engineer's certificate as to the stability of the sides of the excavation.
PN1877
A bit further down there is a summary of what is the result of the report?---Yes, that's my summary which says, "Noted and no further action."
PN1878
No further action. So no further action required?---That's correct.
PN1879
In other words there was no particular breach revealed on that inspection?---On the proviso that the engineer's report is provided.
PN1880
So when you have reported on photos numbers 11 and 12 you are only working off those photographs?---That's correct.
PN1881
You have expressed some concerns about those photographs?---That's correct.
PN1882
In light of the report of the inspector that actually attended the site, which would you say was the better evidence of the state of the site at that time?---Well, the issue is that the inspector couldn't get access to the site. His main concern was the stability of the excavation. So again, it would be difficult to say on both.
PN1883
Yes, but he has seen no reason for further action?---He's recommended no further action, that's correct.
PN1884
As you have said, you have noted I think you said that there be no further action required?---That's correct.
PN1885
If I take you to the details of the concerns you expressed about the photos numbers 11 and 12 then. You have talked about a couple of issues. One in particular, you have talked about the fencing?---Yes.
PN1886
You have said the stability of the ATF fencing is also questionable?---Yes.
PN1887
That is based solely on what you can see on these photographs?---That's correct.
PN1888
Would your view change if you were to be informed that those ATF fences were secured in concrete blocks and the blocks themselves are dowelled to the ground or stapled to the ground?---Absolutely.
PN1889
What would your view be if that was the case?---I would view that then they would be stable.
PN1890
They would be stable. If they were also clipped together at the top as well as being stapled in the manner I describe?---That would form part of the stability factor because that's part of the assembly criteria.
PN1891
So if that was the case you would not have the same concerns about persons penetrating the fence and particularly children being placed at risk?---That's correct.
PN1892
You have described also in relation to the photographs the Portaloo, I think you called it, on the site?---Yes.
PN1893
You have said some things about services and amenities. The Construction Safety Act and the Occupational Health and Safety Act do not actually require sewering of toilets on a site, do they?---That's correct.
PN1894
In fact, they provide that where sewering is not practicable there are other alternatives, do not they?---That's correct.
PN1895
What are those other alternatives?---A Portaloo of amenities with ancillary services.
PN1896
So in fact the Portaloo does comply. It is not a breach of any law?---No, it's not.
PN1897
Generally speaking then, the fencing and the Portaloo being the concerns you have expressed in photo number 11, in light of what has been put to you would you have the same concerns that you have expressed in paragraph 14 of your statement?---In regards to the ATF fencing I would say that in view of the information you have provided me, if they had been dowelled and secured I would alter my view, but in regards to the site establishment, it has always been our view that proper site establishment be installed given the nature of the construction work that is going to be undertaken.
PN1898
Yes?---In reference to is there a clear breach well, there's no clear breach at this point in time. Again, it would be dependent on the amount of work that had been undertaken, and given that from the work that is being undertaken now, which is above and beyond excavation work, you would expect that proper amenities be installed.
PN1899
Yes, but in fact the inspector's report that you have read to us describes amenities as being there?---He's described some site sheds, yes. So obviously his visit to the site was after the Portaloo was there I would say. Again, that is only an assumption.
PN1900
The Portaloo that is shown in these photographs?---That's correct.
PN1901
Moving on then to photograph number 12, you have made note of concrete blocks. You have described them as Besser blocks?---Yes.
PN1902
Being double stacked?---Yes.
PN1903
You have expressed concern about that from a manual handling point of view?---And a safety point of view.
PN1904
On the manual handling point of view then, your concern relates to risks that might be posed should those pallets or blocks need to be moved by hand. Is that the case?---Well, the blocks being unloaded off the stack by hand, yes.
PN1905
Would you have the same concern if it was the case that these blocks were being moved by machine?---No.
PN1906
Perhaps you could look closely at photograph number 12. Might I approach the witness?
PN1907
THE COMMISSIONER: Yes.
PN1908
MR MURRAY: If I could take you to the left side of the photograph where I am indicating there. What do you see there?---It would appear to be some form of implement, probably an excavator or some form of mechanical aid.
PN1909
If I were to inform you that that implement is in fact a device called the Telehandler, you are familiar with a Telehandler?---Yes, I am.
PN1910
Would you describe what a Telehandler does?---A Telehandler is an alter-aim telescopic fork-life for the construction sites.
PN1911
If I were to inform you that that Telehandler was there to move the blocks down into the excavation and around the excavation whilst there, in other words, to perform the handling, would you have the same concern about the manual handling aspect of the blocks statement?---No, I wouldn't.
PN1912
You have also described concerns about other aspects of the blocks in that they are shrinkwrapped, I think you expressed it, which needs to be torn off the blocks which can leave the top level unstable. I am reading now from paragraph 15 of your statement?---Yes.
PN1913
In light of what I have now informed you about the use of a Telehandler to move the blocks around, would you have the same concern about the too high stacks having the shrinkwrap torn from them?---No, that's on the assumption that the Telehandler removes the top stack and lays it on the ground. Then the removal of shrinkwrap would be no more dangerous than the ones that are on the ground.
PN1914
Yes, so it would not be a particular hazard if the Telehandler is there to unstack the blocks?---No, that's correct.
PN1915
Going back then through the photographs you have described, you have described now a number of photographs from number 1 onwards?---Correct.
PN1916
The first three photographs you have really expressed no concern about. There are no hazards on those photographs according to your statement. That is correct, is not it?---It's only a view of a construction site under construction with the charged water being pumped out. That's correct.
PN1917
So no particular issue there. If I could now take you to photograph number 4?---Yes.
PN1918
You have said, "It would appear this is a photograph of part of the footing of ATF fencing"?---That's correct.
PN1919
You have then gone on to say some things about the stability of the set-up?---Yes.
PN1920
By the stability of the set-up are you referring to the ATF fencing?---That's correct.
PN1921
In the same way as I took you through in relation to photographs numbers 11 and 12, if you were informed that the ATF fencing was in fact secured in concrete blocks which had been dowelled into the ground, would you have the same concern about stability?---Well, I wouldn't, but in this case here they're not. If you look at photograph 4 you will see the footing which is clearly laying across a piece of timber, and the ATF fencing is not engaged into the foot.
PN1922
If I was to inform you that the same area is shown in number 5 and that on that part of the site the concrete blocks were in fact buried, that would explain why you cannot see them, would not it?---Well, if they're buried I would assume then that it would be stable, but I'm not able to detect - see any signs of that particular part of the fence being buried. If you were to provide me with evidence that they were and dowelled then I would assume that the fence is stable.
PN1923
Perhaps if you look closely at photograph number 5. Might I approach the witness again, Commissioner?
PN1924
THE COMMISSIONER: Yes.
PN1925
MR MURRAY: If I indicate to you the base of the fence there, you can see something there, cannot you?---I can see something, yes.
PN1926
What might that be?---I can't tell but I can see something there.
PN1927
It may well be that that is a concrete block in fact?---Well, it's not consistent with the other concrete blocks that I'm familiar with. It could be a concrete block.
PN1928
In terms of photograph number 4 and the similar area of number 5, it may well in fact be that this fence is secured?---It could well be.
PN1929
It could well be, and it is not really possible for you to make a determination based on the photographs, is it?---That's correct.
PN1930
You have then gone on to say - and I am going back to paragraph 7 of your statement, "If this area is being used then there is no safe access to and from it"?---That's correct.
PN1931
Therefore if it is not being used it is not an issue, is it?---That's correct.
PN1932
So if we go then to photograph number 4, and if I might approach again. The area we are talking about then is the area of the bottom right corner of the photograph. That is the area you are talking about when you say: if this area is being used for access?---That's correct, yes.
PN1933
If it is not being used for access then, as you said, this photograph does not really reveal any problem with access. So if, for example, there was an alternate access to the parts of the site that we are looking at, this becomes immaterial, does not it?---In the short term, yes, until such time as it is ever used as access.
PN1934
You have also talked about the fact that the ground is inclined and there is evidence of water and loose rubble which would make the ground slippery?---That's correct.
PN1935
If that was the case that would increase any hazard, would not it?---That's correct.
PN1936
If I put it to you that in fact what you are seeing there is a compacted mix of crushed concrete and brick, would you have the same concern?---I've never seen a compacted mix of concrete and brick laid across an edge such as that. However, if you were to provide me with evidence that it is compacted and is stable and that access area there is then used, well, there's a further risk that a person could fall more than 1.8 metres. So the fact that you have compacted mix along that edge doesn't translate that it would be safe. A person could still fall down between the brickwork and the excavation.
PN1937
Now, if we take it, however, that the area to the bottom right of photograph number 4 is not used for access?---Right.
PN1938
However, that that area in approximately the centre of the photograph might be a work area?---Yes.
PN1939
The fact that if there was compacted crushed concrete and brick on that surface, it would not be the same sort of situation as if it was slippery as you have talked about?---That's correct.
PN1940
In fact, it would not be anywhere near the same hazard, would it?---The hazard still exists but it wouldn't be slippery. The only hazard you would remove is the slippery factor.
PN1941
So paragraph number 4. If we now move to photograph number 5. We have talked about the ATF fencing and we have talked also about the rubble, but if that area is not being used for access, well, then there is nothing else there in that photograph, is there?---That's correct.
PN1942
Photograph number 6 and photograph number 7 have a piece of wood on them?---That's correct.
PN1943
Then you have talked about this piece of wood, if it was used as a bridge it would be unacceptable?---That's correct.
PN1944
If it was not used as a bridge it is neither here nor there, is it?---That's correct.
PN1945
If I put it to you that this piece of timber is no more than a piece of 4 x 2 it is unlikely it is being used for a bridge, is not it?---I've seen pieces of timber used for a bridge such as that so I can't say it's unlikely. On the evidence you provide, if it is not used it is not used, but I have seen people use those as access.
PN1946
You have no evidence that it is being used at all, do you?---That's correct.
PN1947
It is just a piece of timber and if it is not being used it is neither here nor there?---That's correct.
PN1948
If we talk about photograph number 8, moving on through, we have got a person moving through the site?---Yes.
PN1949
A person walking down an incline?---Yes.
PN1950
You said, "If he accessed the site from the ATF fencing shown in photo number 4, this is not a safe access way"?---That's correct.
PN1951
If he had not accessed from that point this photograph is neither here nor there either, is it?---That's correct.
PN1952
There is nothing about this photograph that indicates where he came from, is there?---That's correct.
PN1953
Photograph number 9, you have not described any particular hazard there for the person walking through the site?---Only to show the height, no, that's correct.
PN1954
If we move on to photograph number 10, you have described what appears to be difficulty with access to a power board?---That's correct.
PN1955
This is a photograph taken from a particular angle, is not it?---That's correct.
PN1956
It may well be that a photograph taken from another angle might show quite a different story?---Absolutely.
PN1957
In fact, it is not possible to determine from this photograph whether there is another access to that power board from a different direction?---That's correct.
PN1958
It may well be that there is storage on the side nearest to us in this photograph but not on the side away from us?---That's correct.
PN1959
That is where the power board in fact is located, is not it, on the side away from us?---That's correct.
PN1960
So it may well be in fact that there is no difficulty of access to this power board at all?---True.
PN1961
It is not possible to make any real conclusion from this photograph, is it?---That's correct.
PN1962
Now, that is the photographs dealt with. We will now move on to paragraph 16 and onwards of your statement. You have talked about construction of a retaining wall. You have talked at paragraph 16 about your view that this could not have been built without recourse to some sort of work platform. That is correct, is not it?---That's correct.
PN1963
Because it would not have been possible for a blocklayer to lay these blocks above his head?---That's correct.
PN1964
So there must have been some sort of platform or scaffolding?---That's correct.
PN1965
In order for this to be carried out?---Yes.
PN1966
These concrete blocks, they are a fairly hefty item, are not they?---Heavier than bricks, yes.
PN1967
In fact, I put it to you that they are about 12.5 to 13.5 kilos. Would that be consistent with your experience?---I don't know. I've never weighed them.
PN1968
But not lightweight?---They are not lightweight, no.
PN1969
So not something that one can lay at that height?---That's correct.
PN1970
Not something that one can lay to a height of in some cases over two metres?---Well, again, it's dependent on the height and stature of the person. I'd have difficulty.
PN1971
So it must have been then, according to what you have said here, that there was in fact some sort of scaffolding or work platform for that to be carried out?---It would appear that, yes.
PN1972
If we move on to 17. You have said, "If the wall is ready to fill with concrete there would need to be constructed a work platform"?---That's correct.
PN1973
If there had already been a work platform there would be no necessity to construct a new one, would there?---Well, it's dependent on whether the work platform is consistent that would allow the change in work procedure, whether it met that criteria. The fact that you have a work platform doesn't translate that because it was available and suitable for blocklayers the same would translate for any other work.
PN1974
But from what you have said the platform made for the blocklayers would have been to within at least some distance from the top of the wall, would not it?---That's correct.
PN1975
A distance convenient for a blocklayer to in fact lay the blocks?---That's correct.
PN1976
So that would be no more than about, what, 1.2 metres?---Well again, it depends on the stature of the person. I wouldn't hazard a guess. Without measuring the wall and taking measurements I wouldn't know.
PN1977
So a platform designed around those sorts of dimensions, that would be suitable for pouring the concrete, would not it?---Again, you would have to carry out a risk assessment and look at the stature of the person standing on the platform in relevance to the filling of a concrete wall. If you've got a 6'6" giant obviously he would reach the concrete wall, or the top of the wall a lot easier than I would at 165 centimetres.
PN1978
You have talked about in paragraph 17 a number of things there, including the necessity for holding the nozzle at an appropriate height?---Yes.
PN1979
A height probably not all that dissimilar to the height that you would be laying blocks comfortably?---Well, blocklayers are able to lay the top course with some degree of difficulty without recourse to reposition the scaffold, because they are able to work at that height at eye level or above eye level. It wouldn't be appropriate for a person discharging concrete from a nozzle at some pressure to have it at eye level because he's likely to cop some damage or some product into his eye.
PN1980
Yes, but you really have no way of determining what the exact height was, do you?---I don't know what height the blocklayers were, nor do I know what height the persons were that were conducting the work. I'm just saying if the two are not relevant, a risk assessment needs to be undertaken in conjunction with the height and stature of the persons doing it, whether they be blocklayers, persons engaged in painting the brickwork for sealing or whatever job they're doing.
PN1981
If we move on then. You have talked in the bottom part of that paragraph 17 about a person operating a vibrator?---That's correct.
PN1982
You really have no way of knowing that a vibrator was to be used here, do you?---No, I haven't, no.
PN1983
In fact, it may well not have been?---That's correct.
PN1984
Indeed, I put it to you that it was not going to be used?---That may be the case.
PN1985
Therefore the commentary about the vibrator is not really going to be relevant, is it?---If they're not going to use it and never intended to, that comment there is irrelevant, that's correct.
PN1986
Because there is in fact another way that it could be done and that would be using a high slump mix?---Well, unfortunately a high slump mix doesn't get rid of all the air entrapment. The reason they use vibrators is to get rid of the air entrapment. High slump mix doesn't address that issue. However, that's not to say that given the height of the wall and given the engineering details and what the engineer has specified that it may meet the criteria. I'm in no position to pass judgment on that.
PN1987
So in fact, if the engineer has specified a high slump mix and given the height of the wall, it is not an enormous dimension, you would have no real argument with that, would you?---That's correct.
PN1988
If we then move on to paragraph 18. You have talked about, "If it was the case that the person controlling the pump nozzle was filling in the cavities while standing on top of the wall this would be considered an unsafe act or practice"?---That's correct.
PN1989
The reason you have given, you have given one reason and that is your question about the stability of the wall?---That's correct, that's one reason, yes.
PN1990
So if I put it to you then that the wall in fact in this particular case - we are talking about concrete blocks?---Yes.
PN1991
In your experience are you aware of the strength of concrete blocks?---Concrete blocks in my opinion, in my experience, are not very stable blocks.
PN1992
I am actually asking you about the strength of the concrete blocks?---I'm not aware of the strength of concrete blocks, no.
PN1993
If I put it to you that a concrete block has a substantial strength?---In which way?
PN1994
Compressive strength?---Compressive strength, correct.
PN1995
Okay. Indeed, I put it to you that these particular concrete blocks were rated at 12 megapascals strength?---Yes.
PN1996
That is a substantial strength, is not it?---Compression strength, yes.
PN1997
In fact, in old terms that is about what, 1700 PSI?---Yes.
PN1998
1700-odd pounds per square inch?---Yes, it could be tons, it could be tons. It is really not relevant.
PN1999
If I put it to you further that these concrete blocks were in fact placed with a cement mortar between them?---That's correct.
PN2000
And that that cement mortar had a similar compressive strength?---Has to be, yes.
PN2001
If I put it to you further that these concrete blocks when they were laid, between every second course there was 12 mm steel reinforcing bars cemented into place?---That's correct, yes.
PN2002
In fact, you can see those in some of your photographs?---Yes, I've actually mentioned it you will find there.
PN2003
If I put it to you further that this wall was constructed on a concrete footing?---It has to be, yes.
PN2004
And it has full height starter bars?---Yes.
PN2005
Then the question of stability is - well, it is less of a question, is not it?---No, it's not.
PN2006
If I put it to you that we are talking about a person standing on top of the wall?---Yes.
PN2007
So this is a load vertically downwards through the wall?---That's correct.
PN2008
In other words, a compressive load. Where you have a concrete wall and concrete masonry between the joins that has a compressive strength of about 12 megapascals, 1700 PSI, it is hardly likely to fail in compression, is it?---Failing compression is not the issue here. It is the lateral load and imposed load by a person working on the wall which dislodges the Besser block wall. I have seen it time and time again where in some instances where the mortar is not correct or in compression it will withstand all the load and the wall will not retain its full design strength as designed by an engineer until the cavities are filled with concrete. Now, the fact that you have starter bars and intermediate bars, horizontal bars does not translate in that the wall is a stable wall until it's charged.
PN2009
This is a wall that is designed to support a multi-storey building, is not it?---It will take the multi-storey building. It will takes tons of load. I've seen them time and time again. Using a multi-storey building in the CBD, again the walls will not take lateral loads until they are charged with concrete.
PN2010
If a person is standing on top of the wall there is no lateral load, is there? The load is directly downwards?---No, it's not, because he has movement and when he moves from foot to foot he's got to straddle it because he can't put it in the middle. So he puts a foot on either side, being a dangerous incidence in the first instance, but they tend to put a foot either side which then tends to dislodge the top course.
PN2011
We are talking about a wall which is a solid block wall?---Yes, but the top course is not locked. The ones below are but the top course when you walk along the top course they do dislodge. They take the compression load, they take all these loads but the wall does not reach its full strength until - that's lateral and compression - until it's been charged with concrete and you have the holistic integration of the concrete and the reo bars and the design of the engineer.
PN2012
So what you are saying then is that the mere fact of a human being, what, roughly 75 kilos in weight, moving on top of this wall represents a serious risk of that wall falling down?---Yes.
PN2013
You are seriously saying that a person moving on that wall - - -?---Runs a risk apart from falling down, because he's got no hand and needs protection, can dislodge those bricks if they are not properly secured and properly laid. You're relying on the expertise of the blocklayer to lay the wall to make sure that it is properly locked and is properly secured. Again, there are a lot of factors that come into it, the mortar mix, the temperature of the day, the absorption rate of the block wall. I've seen it time and time again. In fact, in some instances they even let them sit there in a loose state until they fill them with concrete.
PN2014
If I put to you this then, that we have got a mortar mix that has in fact a rate of loading?---Yes.
PN2015
A rate of loading equal for the wall. I put to you further that the mortar mix had been given time to cure, several days to cure. You are still saying then, are you, that this is a wall which is so unstable as to pose a risk of falling down should someone move on it?---I'm not saying that the wall is so unstable with a risk of falling down. I'm saying that the top course of a block wall is unstable by the sheer nature that it is not locked, it is loose, unlike the second wall, and would run the risk that if a person were to walk upon the top course, apart from the unsafe practice, there is the risk that that top course could be loose. I've observed it on many occasions.
PN2016
Thank you, I have nothing further.
PN2017
PN2018
MR LATHAM: Just on the issue of this Besser block wall, just so I understand it, my friend put some questions to you about compression rates?---That's right.
PN2019
A compression rate is if the pressure is purely from the top, is not it, going downwards?---It's a vertical load upon the wall.
PN2020
The concerns you raised related to lateral stability which is the stability from side to side, is not it?---That's correct.
PN2021
So in fact, say, in relation to a block wall or any sort of structure you could have, for example, very high compression rates that it was safe for, but much lower lateral stability issues. Is that correct?---That's correct. If the block wall was strong enough to take the compression load there wouldn't be any need to fill it with concrete. The reason they put the reo bars and the starter bars in there is to give it the strength and the design that the engineer needs to support the building. A wall is not full strength yet until the concrete is poured and it has set.
PN2022
Now, in relation to - just going back to the issue of the working platform that was discussed a bit earlier on?---Yes.
PN2023
You gave some evidence, I think, that - if I can just take it in stages - that in fact when bricklayers are going around they often will raise a brick higher than their head height so that they do not have to then go and re-do all the scaffolding?---That's correct, yes.
PN2024
Generally, or in your experience, do bricklayers put the scaffolding for the entire building around or do they do sections at a time and move the scaffolding?---They normally do sections. Again, it's dependent on the type and the nature of the work, whether they have scaffolders that come in and do the work, the number of blocklayers or bricklayers on site. There are too many variables there. My experience has been they normally lay the scaffolding down for one run.
PN2025
I think what you were saying in your evidence was that you could not really know whether the scaffolding used in the bricklaying process would be appropriate for other things unless you actually looked at the sort of people and their physical height, for example, who were doing both jobs. Is that correct?---Yes, that's correct.
PN2026
Just in relation to that final point, and I think this is my final question. You referred to the danger, for example, of someone who was very tall who had been doing the bricklaying, for example, followed by someone much shorter who was doing, for example, the concrete work with the pump?---That's right, or vice versa, yes.
PN2027
Or vice versa. You in fact said in that situation you could have somebody if the concreter was shorter in fact having the pump at head height?---That's correct.
PN2028
You referred to some difficulties there. Could you just explain to me just what those difficulties might be just so that I am clear about them?---There's a manual handle code of practice that requires the employer to conduct a risk assessment and put in place systems which are conducive to proper skeletal structure of the person doing the work. For a short person he needs to be at chest height or at belt height. Again, it depends, so that you don't raise your arms above your shoulder height repetitively, and that the work and the balance of the operator is capable to conduct the work or task to which they've been assigned.
PN2029
I think you referred to the difficulty of getting a product in your face, I think were the words that you used?---Well, there's the risk of when you're pumping. I mean, take it that we are pumping it in because that's the most common method today. They use a discharge nozzle from the pump. Sometimes they use - most of the time they use boom pumps which have a suspended arm that comes out and it places a vertical discharge into the cavity wall. They've got to manoeuvre that and signal the driver or they have remote control and they can operate it from their belt. Again, if it's at head height it's going to splash because a nozzle doesn't discharge straight in. Again, it depends on the ability and experience of the operator, but it could splash on the wall. Then you'll have a dangerous product with sand, lime and cement entering the person's eyes. Again, a risk assessment would have to be undertaken and he may even be required to wear glasses. They are the dangerous factors.
PN2030
Just so I understand it, the lime that you talk about is actually an ingredient in the cement?---The ingredients in the cement, and your other additives that may be involved.
PN2031
What is the effect of getting lime in your eyes, to the best of your experience?---Apart from the cement you have a burning effect that can do damage to your eye and you would need to seek medical attention. Again, it would be dependent on how much you got in there and the type.
PN2032
Nothing further, Commissioner.
PN2033
PN2034
MR LATHAM: Perhaps, Commissioner, we will call Mr Taylor, who I think is outside, for cross-examination.
PN2035
THE COMMISSIONER: You have already been sworn, Mr Taylor, thank you.
PN2036
MR MURRAY: Mr Taylor, you are a concrete pump operator you said last time you were here?---Yes.
PN2037
You have been doing that for a fair while, have not you?---Yes.
PN2038
Some 14 years I think you said. Perhaps for the benefit of the Commission could I just take you through how a boom pump works, please? A boom pump is what you were using on the site on 18 April, is not it?---That's correct.
PN2039
That comprises a truck-mounted device, there is a truck and there is a pump, is not there?---Yes.
PN2040
Then you have got a boom, a large boom that is hydraulically operated?---That's correct.
PN2041
That carries a pipe. Then hanging down from the end of that boom you have got a hose?---Yes.
PN2042
The pump on the truck guides concrete through that pipe and down that hose and out a nozzle. Correct?---That's correct.
PN2043
The boom itself, that is controlled hydraulically, is not it?---Yes.
PN2044
In fact, on the truck that is where the controls are?---Yes.
PN2045
It is your role as the pump operator to operate that boom?---That's right.
PN2046
That is how you get the nozzle of the hose to where you want it on the site. Is that right?---Yes.
PN2047
The other thing you are doing from the truck-mounted controls, you are actually controlling the flow rate, are not you?---Yes.
PN2048
You are controlling the flow of concrete through that pipe?---Yes.
PN2049
You work as a two-man team. So the other fellow that works with you, he is on the nozzle?---Yes.
PN2050
What he is doing, he is just aligning the nozzle, is not he?---That's right.
PN2051
It is going on down and he is basically putting it into the cores?---Yes.
PN2052
As a pump operator you are actually controlling where that nozzle is for him and you are controlling the flow of concrete for him, are not you?---Yes.
PN2053
Perhaps for information, I have one or two photographs that might help you illustrate this. The first of these - if I might approach the witness. That is actually what it looks like, is not it?---Yes.
PN2054
Do you recognise that truck?---Yes, that's one of ours.
PN2055
It is in fact the truck that you used on the day at Dee Why, is not it?---No, that's incorrect.
PN2056
It was one like that?---Yes.
PN2057
So the same sort of device. Would you just hold that up, please. Would you indicate on that truck where the boom is?---This is what we call the boom.
PN2058
Perhaps if you could just show it to the Commissioner, if you would?---This part here.
PN2059
Okay, so that is the boom. The fellow standing next to that boom, he is actually the concrete pump operator, is not he?---That's correct.
PN2060
That is where you stand when you are doing the work because that is where the controls are?---Yes.
PN2061
I am going to show you another photograph. Actually, I might tender that photograph, if there is no objection, that first one.
PN2062
PN2063
THE COMMISSIONER: Do you have another copy, Mr Murray?
PN2064
MR MURRAY: I do indeed, Commissioner.
PN2065
Just giving you a second photograph. Can you identify what is going on in that photograph?---Yes, they are doing what you call a suspended slab.
PN2066
The thing in the middle of the photograph - perhaps if I indicate it to you, this here, that is the boom, is not it?---That's correct.
PN2067
That is the hydraulically operated boom?---Yes.
PN2068
Heading down from the end of it that is the hose, is not it?---That's the hose, yes.
PN2069
That is how the thing works. You have got a truck, you stand on the truck, you drive this thing?---Yes.
PN2070
That is how the concrete is brought into the site?---Yes.
PN2071
Then you have a nozzle man directing the flow at the end of the hose?---Mm. He's better known as a linesman.
PN2072
That is in fact the sort of boom that you were using on the site at Dee Why?---Yes.
PN2073
In fact, the linesman, he depends absolutely on you to control that operation, does not he?---Some linesmen do, yes. With our linesmen, because we've known each other for a lot of years we rely on each other, on each other's skills.
PN2074
Okay, but he is relying on you to operate this boom to locate where everything is?---Yes.
PN2075
He is relying on you to control the flow rate?---That's right.
PN2076
So while the pour is going on both of you are working, are not you?---Yes.
PN2077
You are both fully occupied working?---Mm.
PN2078
You described when you were here the other day that you actually poured several walls on the site at Dee Why?---Yes.
PN2079
You actually outlined which walls they were. That was a bit more than half of the job, was not it?---Yes.
PN2080
Roughly two-thirds of the job in fact?---I think so. Like, it was a long time ago.
PN2081
Yes, but you poured one truck?---I think two trucks.
PN2082
Okay, so you poured two trucks. Now, when you are doing these concrete pumping operations you coordinate the delivery of concrete, do not you?---That's correct.
PN2083
So you organise the timing?---Yes.
PN2084
Because that is quite important, is not it?---Yes.
PN2085
You do not want a truck sitting there in the street waiting while you are out on another truck?---That's right. Well, as an operator our job is to communicate with the builder and a lot of the builders leave it up to us operators to organise the concrete.
PN2086
You have been working in the district for a while, have not you, in the area of Dee Why, have not you?---I've been back here in New South Wales for nine months.
PN2087
So you are familiar with where the concrete comes from?---Yes.
PN2088
You know where it came from on the day in question, do not you?---Yes.
PN2089
Where was that?---That was from Manly Vale Hi-Mix. I think their plant's at Manly Vale. It's out over the north side.
PN2090
Manly Vale Hi-Mix. About how far away is that from the site at Dee Why?---I think - probably 20 to 40 minutes.
PN2091
You have described pouring two trucks?---Yes.
PN2092
You would have a pretty good idea of what the timings were because as you said, you coordinated that, did not you?---Yes.
PN2093
So if I put to you that the first truck arrived on the site a bit before half past 2 would you agree with that?---Yes, somewhere around there.
PN2094
You had scheduled the next one for a little bit after that, had not you?---Yes.
PN2095
About how much after that?---20 minutes.
PN2096
So a bit before 3?---Yes.
PN2097
It took you that time to pour out that first truck, did it?---Well, it depends. Like, I would say yes, between 20 minutes and half an hour.
PN2098
So the first truck has arrived there a bit before half past 2?---Yes.
PN2099
It has taken you till nearly 3 o'clock to empty that one?---Mm.
PN2100
Then you have gone on to the next one after that?---Yes.
PN2101
That would have taken you up until about probably 20 past 3 or so?---Yes, something like that.
PN2102
You have poured out both those trucks. So then in the time from 2.30 to just before 3.30 you were fully engaged pouring out those two trucks, pouring those trucks into the site?---Mm.
PN2103
As the operator of the pump you were required to be on the truck operating that during that whole time, were not you?---Mm.
PN2104
So for almost an hour then you were fully occupied on the truck operating the controls on the hydraulic boom pump.
PN2105
That being the case then, what you have described in your statement could not have occurred, could it? You have described, for example, various conversations when Mr Mitchell has arrived at the site?---So what you're saying is while I'm on that pump doing my job I'm just concentrating on my offsider?
PN2106
That is essentially what you have said to us, yes?---Yes, I do that but I can also take into account what's going on around me. I haven't been doing this for two days. I'm talking 14 years experience.
PN2107
No one is questioning your experience, Mr Taylor. What I put to you though is that you were occupied, as you say, the linesman relies on you and you work together to deliver the concrete?---Mm.
PN2108
So when you have described going over to Mr Mitchell and talking to him that could not have occurred, could it?---It can occur. We can stop the pump. Just because these trucks are on the back of the machine it doesn't mean to say that I'm pumping concrete continuous. There was times in that wall where my offsider had to stop me because there was missing blocks. The walls weren't straight. He had to step down and step up.
PN2109
You have talked about a number of conversations and a lengthy, if I could put it that way, interaction with Mr Mitchell. What you have described here now is that for that first hour that Mr Mitchell was on the site you were busy pouring the concrete. The rate of pouring was not affected, was it?---No.
PN2110
You have described how long these things take to pour out. You were not slowed down in any way, were you?---No.
PN2111
So you were pouring in the way that you would normally pour, were not you?---Correct.
PN2112
At about the speed you would normally pour this sort of job?---Mm.
PN2113
For that entire time?---I think so. I think so.
PN2114
You only stopped in fact when Mr Mitchell moved his vehicle to block the third truck's access to the hopper?---No, I'm pretty sure we stopped. When Mr Mitchell arrived on site he was on site for about five minutes before I realised he was there. My offsider seen him arrive on the site and someone stopped me. I don't know whether it was Mr Mitchell or my linesman but someone said stop the pump. So I stopped the machine.
PN2115
What you have described though is that you in fact continued pumping and you have described pumping in two truckloads of concrete?---Yes. I'm not sure whether I pumped the whole - I know I pumped the first load into the job. The second load, whether I stopped through it or not, but I did end up finishing that whole load.
PN2116
So in fact, as I put to you, you were occupied on the first load between 20 minutes and half an hour as you have said?---That's correct.
PN2117
So from just before 2.30 till just before 3 o'clock you poured in that first load. Then you went on to the second load and you poured that?---Yes.
PN2118
You have described that as taking about the same length of time?---Mm.
PN2119
What I am putting to you is that you were actually busy doing that and did not stop when Mr Mitchell arrived at all?---No, I'm pretty sure I stopped when Mr Mitchell arrived. Like, he might have been there five minutes and I was told to stop the machine so I stopped the machine. Whether that was the second load or the first load - I know it wasn't the first load. It may have been even the third load, I'm not sure, but I was told to stop the machine and that's my job to do, stop the machine.
PN2120
Right. Now, you have described here earlier in your statement - and perhaps if you would like to refer to it. You have described here concerns, and I am looking now at paragraphs 3 and onwards. You have described concerns that you had about the job. In fact, from what you just said you proceeded and did the job until Mr Mitchell stopped you, did not you?---That's correct.
PN2121
It was only Mr Mitchell stopping you that caused you to no longer go on with the work?---That's right.
PN2122
In fact, you had poured two-thirds of the job?---Mm.
PN2123
I put to you that you did not in fact raise any of these concerns at all?---Now, let me just say something here. When we got to a lot of jobs here in Sydney the safety isn't there. Unfortunately the builders don't price the jobs properly to allow the safety rules regarded to the jobs. Now, if we go to every job and say: sorry, we're not doing this job because it's just not safe, we're not going to make money. Unfortunately the bigger jobs the unions are there and they are there to help us. That's the way it is.
PN2124
What I am putting to you though, you are Legend Concrete. That is an independent contractor, is not it?---That's correct.
PN2125
You could quite easily have raised the issues with the builder but you did not?---I think I mentioned to Mr Thompson: have we got a scaffold here? The answer was: we have brickies' scaffold. That is too low. It is too low for the job we are doing.
PN2126
What I am putting to you is this. First of all you did not raise these issues with the builder. Now you say you think you might have. I am putting to you that you did not raise these issues with the builder. Do you have a comment on that?---No.
PN2127
Well, not only did not you raise the issues with the builder but as an independent contractor you would have been quite well within your rights to simply walk?---That's correct.
PN2128
But you did not?---No.
PN2129
No, you proceeded and poured the wall?---That's right.
PN2130
As you have done in the past?---That's right.
PN2131
The same sort of rate as you have done in the past?---No, no, you are incorrect. That is the first time we have done that. All our jobs we do have scaffold around them for block fill. I spoke to my other two partners and said: what do you reckon? They said: it's up to you guys. I said to my offsider: if you're comfortable we'll do it, if you're not we're going home. He said: we'll have a go. He said: we've come all this way to do the job, let's make the money. So we started doing the wall.
PN2132
Let us talk about scaffold then. There was in fact scaffold there, was not there?---Not scaffold, no. There was brickies' planks and frames there. That is not scaffold.
PN2133
I am putting to you that there was in fact scaffold there on the site?---Okay.
PN2134
In fact, even Mr Mitchell has conceded that there was at least some scaffold on the site. So I am putting to you that there was scaffold on the site which was used originally by the brickies?---Yes.
PN2135
The brickies needed the scaffold, of course, to put the block wall up?---That's correct.
PN2136
Because it would be impossible for them to put a block wall up to the height here without having a scaffold?---Mm.
PN2137
In fact, there was scaffold on the site?---For the brickies, yes.
PN2138
That scaffold was within about 1.2 metres of the top of the walls?---Yes, I'd say so, yes.
PN2139
So even if you were standing on those walls then, on one side you have got scaffold?---Yes.
PN2140
On the other side you have got backfill?---Backfill?
PN2141
Yes?---Sorry, there wasn't backfill behind the wall.
PN2142
Perhaps if we just confine ourselves to the site where the scaffold is for the time being?---Okay.
PN2143
On that side at least you have got scaffold there?---Yes.
PN2144
Within about 1.2 metres of the top of the wall?---Mm.
PN2145
On the other side of the wall you have got an earth bank?---Yes.
PN2146
I put to you that in the side of the wall there was in fact backfill?---Okay. Well, the side where my machine was there was nothing there.
PN2147
I am putting to you that on that side there was earth and sand to within 1.2 metres, the top of that wall?---Mm.
PN2148
Do you have an answer to that?---No.
PN2149
If that was the case then, even if you were standing on top of that wall and even if you did fall, you were not exposed to a risk of falling more than 1.2 metres, were you?---No.
PN2150
Now, when you arrived at the site I put to you that you had a discussion with Mr Thompson and Mr Thompson pointed out the scaffold to you?---I don't recall. Sorry, I don't recall.
PN2151
Between you and your partner you have elected to do the pumping from the top of the wall?---Mm.
PN2152
So it was your choice to do the pumping from the top of the wall?---Yes, that's correct.
PN2153
In fact, that is how you did two-thirds of the job?---Mm.
PN2154
Until Mr Mitchell stopped you by driving his ute in between the truck and your pump?---Yes.
PN2155
Now, you have talked about in paragraph 7 a concrete hose when concrete is pouring through can weigh up to 50 or 60 kilograms?---That's correct.
PN2156
In fact, that weight is taken by the boom, is not it?---Yes. It depends. Now, that depends. If we are talking laying the hose down and you have to hang on to it because it can't be on the deck you are talking the whole weight of the hose.
PN2157
If the boom is being used, as we have seen in this photograph, if it is being used in that manner, the hose is hanging vertically?---That's correct.
PN2158
And it is the boom that carries that weight, is not it?---Yes.
PN2159
So the operator or the linesman, I think you called him, he is not carrying any of that weight, is he?---No.
PN2160
All he is doing is directing the end of that hose to where he wants the concrete to go?---Guiding it, yes.
PN2161
As far as it goes then, you have made the choice and away you have gone and you have done the concrete pumping. In your statement now you talk about at paragraph 10 a previous problem, a previous problem about the setting up of the pump?---Mm.
PN2162
You said that there was a problem about setting the pump up on sand?---That's correct.
PN2163
I put to you that that is not in fact what the problem was, because there was no sand on the site?---Okay.
PN2164
In fact, the question was about setting the pump within the site on the driveway?---Mm.
PN2165
The concern was not about stability. The concern was about the ability to reach your boom to all parts of the site from there?---That's right, and I told Mr Thompson I can reach the job from outside and it's safer. There was no room to put my legs where he wanted me to put the pump.
PN2166
Okay. So it was safer to set the pump up outside?---That's correct.
PN2167
And that is what you did?---Yes.
PN2168
When you have talked about the way in which you have set the pump up outside - and I put to you that there were in fact barriers set up?---Yes, the barriers we set up off the pump.
PN2169
You set up barriers to control traffic and allow pedestrians to see what is going on, keep them away from the pump, have not you?---Pedestrians walked around the machine, yes, because they couldn't walk on the footpath.
PN2170
Because, of course, as the operator of the pump that is your responsibility?---No, it isn't my responsibility. It's the responsibility of the builder. My responsibility is to go there and do the job required. It is the builder's responsibility to have that area for myself to set the machine up.
PN2171
Okay, but you have chosen to set it up and there were barriers?---Yes.
PN2172
I put it to you also - you have said that you did not know if Mr Thompson had a permit?---That's right.
PN2173
You do not know if he did not?---Well, if a builder has a permit the builder gives the permit to the operator and we put it on the windscreen displayed in the front of the truck. Now, if a builder has got a permit he will give it to me. We do a lot of big work and they do it.
PN2174
No problem arose out of that, did it?---No.
PN2175
In fact, a council inspector came around, did not he?---I don't recall a council inspector coming around.
PN2176
I put it to you that a council inspector did come around?---Okay.
PN2177
And had no problem. Certainly you were not stopped by anyone, were you?---No.
PN2178
Now, if we move on then, we have got these various conversations you describe with Mr Mitchell, but as we discussed, you were busy, and I put it to you that none of these conversations took place?---Okay.
PN2179
You then talked about at paragraph 25 of your statement a conversation that you say happened with Mr Thompson?---Mm.
PN2180
I put it to you that the question of union membership was not first raised by Mr Thompson at all, was it?---Yes, it was.
PN2181
I put to you that in fact the question was first asked of you by the police?---I'm sorry, the police did not talk to me. They were talking to Mr Mitchell. Why would the police want to talk to me? I'm just a worker on the site.
PN2182
I put to you that this conversation you have described, that never took place. This one at paragraph 25, that never took place?---I'm sorry, it did take place.
PN2183
Mr Thompson never said to you: no union pumps will be doing my work?---I heard what Mr Thompson said to me on the back of the pump. My words to Mr Thompson was: I am a member of the union. Mr Thompson said to me: well, no more union pumps will be coming to my jobs. That's when I walked up to Mr Mitchell and I said: you won't believe what's just happened, we are no longer going to this job because I am a member of the union.
PN2184
Now, Mr Mitchell's statement does not have any reference to such a conversation?---Well, I said to Mr Mitchell about the union with Mr Thompson.
PN2185
Mr Mitchell has given no evidence of such a thing being said.
PN2186
MR LATHAM: How can he know this? How can he answer this question? He was not here. You cannot ask him to comment on evidence that he has not heard.
PN2187
MR MURRAY: The evidence goes to consistency with what has been said by the other party of the conversation that is being described here. This witness is saying he had a conversation with Mr Mitchell. There is no evidence been put from Mr Mitchell about this conversation.
PN2188
THE COMMISSIONER: No, you know that but the witness does not know that.
PN2189
MR MURRAY: Okay. I put it to you that Mr Mitchell has not said anything about this.
PN2190
MR LATHAM: How can he answer that either? He just does not know.
PN2191
MR MURRAY: Perhaps I will withdraw the question and move on then. This is the sort of issue that Mr Mitchell would be expected to react to, is not it?
PN2192
MR LATHAM: How can he answer that? That is a question for Mr Mitchell, not from Mr Taylor. You can ask what Mr Taylor would do, but how would he know what Mr Mitchell would do? Sorry, I should have stood up, Commissioner. It is just ridiculous to ask a witness what somebody else might do, and even if he can answer, what relevance does it have anyway? It is a question that should be asked of the person who is taking the action.
PN2193
MR MURRAY: It goes to the question of consistency with other evidence. That is what I am putting to the witness, the consistency with other evidence. There has been no evidence on this point at all. This first emerged in the statement presented on behalf of Mr Taylor last week, this question of: no union pumps will be doing my work. There has been no evidence from Mr Mitchell about it. How can I put to Mr Mitchell that he did not say something? Mr Mitchell, you have neglected to put something in your statement. The rule in Browne v Dunn does not apply to that. What this goes to is that this witness is saying that a conversation took place and the other party of the conversation has made no reference to it in the evidence before this Commission.
PN2194
THE COMMISSIONER: It is not something Mr Taylor can comment on. It is not in his purview to know why Mr Mitchell has not raised it.
PN2195
MR MURRAY: It goes to the question of consistency.
PN2196
THE COMMISSIONER: It might do that, but it is not a matter for Mr Taylor to have a view about.
PN2197
MR MURRAY: If that is your view, Commissioner, I will move on. I withdraw the question.
PN2198
I will simply put to you this, Mr Taylor, that this conversation did not take place?---I know it took place. You weren't there. I was standing on the back of the pump when I was talking to Mr Thompson about it.
PN2199
Not only did this conversation not take place but your company has been asked back by Mr Thompson?---If you like - I haven't got my diary with me here, Mr Commissioner, but myself and one of the other partners, Quinton Still, we do all the bookings of jobs, and ever since the day I worked on the 18th for Mr Thompson we both have not booked any jobs for that job over at Dee Why. We know who is there pumping concrete. The company name is AAA Concrete Pumping. They are doing the rest of the job. We have not been asked back to the job.
PN2200
You have talked about a diary which shows bookings, but in fact you have been asked back to the job. I put to you you have been asked back to the job and you are unavailable?---Could you tell me who asked me?
PN2201
I am putting to you that Mr Thompson of H.W. Thompson asked you back to the site?---Are you saying Mr Thompson rang me on my mobile phone and asked me back?
PN2202
No, Legend Concrete?---Well, unfortunately Mr Thompson did not ring Legend Concrete Pumping because there's three of us do bookings, Johnny, myself and Quinton, and Quinton and I write all the jobs in our diaries and we have been through both diaries and there is no booking from Mr Thompson for Dee Why.
PN2203
Thank you, I have nothing further.
PN2204
THE COMMISSIONER: Mr Latham?
PN2205
PN2206
MR LATHAM: Mr Taylor, you have given evidence about - I mean, there have been discussions about whether it is scaffolding or not but about - however we describe it, if we can call it brickies' scaffolding for the moment or bricklayers' scaffolding?---Yes.
PN2207
You talked about that there certainly was some bricklayers' scaffolding there. That was you evidence, was not it?---That's correct.
PN2208
I know it is a while ago, but can you remember if that scaffolding went all the way around the inside of the excavated area?---I'm pretty sure it only went down maybe one and a half walls.
PN2209
Okay. There was some question about this. You talked about the area being backfilled between the wall and the natural ground level. Do you remember that discussion? Sorry, you said it was not backfilled?---Yes.
PN2210
Can you just explain what you say?---Well, where I had my machine set up, coming looking in at the wall, like, there was just a sheer drop to - I think there may have been a little bit of gravel down the bottom, but in my eyes if I was on that wall and I fell I would have got hurt for sure. It was a fairly big job.
PN2211
So just so I have got this clear, what you are saying is there is a wall and there is natural ground and between that is a gap?---That's correct.
PN2212
You are saying that gap that you saw, not that you could see all of the gap right around the wall, but the gap that you could see was not filled?---That's correct.
PN2213
Just a final question, Mr Taylor. You were asked about some conversations that you had with Mr Mitchell and it was put to you that you did not have those conversations. I am not sure how you answered it but I just want to ask you just so that we are clear for the record. The conversations that you refer to in your statement at paragraphs 12 and 13 and the other conversations set out there, do you remember having those conversations? Take your time to read it?---Yes, that's correct.
PN2214
No further questions, Commissioner.
PN2215
PN2216
THE COMMISSIONER: Mr Murray.
PN2217
MR MURRAY: Commissioner, I now propose to call Mr Thompson.
PN2218
MR LATHAM: No objection.
PN2219
MR MURRAY: However, in light of certain things that have been raised and also a physical need I would ask for a 15 minute adjournment, if I may.
PN2220
THE COMMISSIONER: Very well. I will adjourn until 11 am.
SHORT ADJOURNMENT [10.46am]
RESUMED [11.05am]
PN2221
MR MURRAY: I call Charles Thompson, Commissioner. I think Mr Thompson should be re-sworn. He has already been excused once.
PN2222
PN2223
THE COMMISSION: Please state your name and address?---Charles Thompson. My address is 272 Victoria Avenue, Chatswood.
PN2224
MR MURRAY: Mr Thompson, I am going to take you through certain issues that have been raised in these proceedings. The first thing that I would do is talk about an exhibit, MBA3 and MBA4, a composite photograph. Might I approach the witness, Commissioner?
PN2225
THE COMMISSIONER: Yes.
PN2226
MR MURRAY: Mr Thompson, can you describe what is shown in that composite picture, please?---That's the site at the corner of Oakes and Clyde Road, Dee Why. It shows the excavated area with footings in place for block walls and the starter bars. It shows the blocks which have been delivered to the site and then placed by Telehandler in preparation for the next stage of the works.
PN2227
How were the blocks moved to where they are now?---They were taken down there by Telehandler.
PN2228
What is a Telehandler?---It's a hydraulic materials handler which can have forks on it as well as other equipment, but in the case of the forks it was there for the purpose of carrying those blocks down the site.
PN2229
How did that gain access to the site?---It gained access to the site by a very large wide access ramp that existed at that time because this is stage 1 of the excavation. So there was probably a 15 metre wide access ramp that was cut out of the original natural ground and track rolled with a 30 tonne excavator.
PN2230
Was the Telehandler present when this photograph was taken?---Yes, it can be seen parked in the street.
PN2231
Perhaps you can show the Commissioner?---That's it parked there.
PN2232
So if it was necessary to move blocks around how would that be done?---That would be done with the Telehandler and it has ability to pick up the pallets on its fork tines
PN2233
THE COMMISSIONER: Just a moment, we have got a problem with hearing Mr Murray.
PN2234
MR MURRAY: Commissioner, if I may, I propose to be near the witness. There are a number of photographs to go through. Can you hear me clearly now? Thank you.
PN2235
Now, surrounding that side there is a fence. Could you describe the nature of that fence, please?---It's a ATF or Australian Temporary Fencing temporary fence which has been erected using their proprietary system, and then it has provision in the concrete blocks at the base of each intersection of the panels to take dowels to further stiffen that fence. Those dowels have been driven into the ground. They are about 600 millimetres long and they were Y16 bar.
PN2236
Y16 bar being what?---Being 16 diameter reinforcing defined bar.
PN2237
You said that there was provision for that to be done. Was it in fact done?---Yes, it was.
PN2238
There has been evidence given as to the date this photograph was taken?---Yes.
PN2239
Would you accept that this shows the site in about the first week of April of this year?---Yes, that would be approximately correct, yes.
PN2240
In the days around that date in the first week of April were you contacted by anyone in relation to the site?---That's the time that I had this abuse approach from Mr Mitchell by telephone.
PN2241
Apart from Mr Mitchell were you contacted in relation to the site?---I had a phone call after Mr Mitchell promised he would get WorkCover onto me. I had a call from Des Highfield from WorkCover who rang me. He asked me to - he told me that basically he had inspected the site. He was happy with it. He asked me a question about whether or not there had been a geotech report on the site and I told him there had and that the engineer had approved the excavation as it stands in that photograph, can be evident from that photograph to the sandstone that is obvious in the excavation. He asked basically that question, whether the engineer was happy to provide a report and I said he was.
PN2242
With that answer what was Mr Highfield's response?---He said he had no problem with the site, it was fine.
PN2243
I would like now to move to 18 April of this year. Evidence has been given by Mr Taylor about a question relating to pump location. Would you outline what occurred?---What happened when Mr Taylor appeared, I asked him to place the pump off the street and on the site on the access way I have just referred to. He said to me that he was concerned that the length of his boom wouldn't allow him to reach all points of the wall and he would prefer therefore to park it in the street. That's what occurred.
PN2244
When he did so did you do anything in relation to any safety concerns about the pump in the street?---Yes, we did. He was blocking the footpath because he nosed the truck up against the temporary fencing. We provided some barrier mesh safety fencing at either end of the footpath blocking people from coming along the Oakes Road footpath between the pump and the fence, and we blocked the access to the site at the other end of the pump. We also provided some council-type barricades to direct pedestrians around the back of the pump. Mr Taylor had some cones which he put around his hopper.
PN2245
Were you contacted by anyone about that set-up?---Yes, I was. While that was in place the council inspector came past. He asked me what we were doing. I explained it to him. I told him what we were doing about barricades. He inspected that and he said to me: that's fine, you can proceed.
PN2246
We have heard evidence about the work method that was being used to pump in the concrete. Would you describe the conversations you had, if any, regarding the work methods you used prior to starting that concrete pour?---I spoke to Mr Taylor's linesman at the time because as we started the pouring of the wall he immediately climbed up onto the top of the wall. I said to him - I was actually standing on the scaffold beside him and said: why don't you use the scaffold, that's what it's here for. He said: we always pour these from the top of the wall. I said: well, I'd prefer you to use the scaffold. He said: we do it from the top of the wall, we reckon it's better. I said: okay, but the scaffold is here to be used.
PN2247
Right. You have described scaffold. Would you tell the Commission the nature of that scaffold, please?---Yes, it was bricklayers' frames plus 50 mil planks, five wide. They were left by the bricklayer for the purpose of my request and I was charged for them. They were there to allow the bricklayers or blocklayers to lay the wall. The blocks in question weigh about 13.5 kilos. They were up there so that people were able to lift blocks as I say, probably 1.2 below the top of the wall.
PN2248
What parts of the site had this scaffolding?---The scaffolding was around the site. We had a reasonable gang of blocklayers there and they were working all around that section. We had scaffold around the whole of the section that we were pouring.
PN2249
On the other side of the wall, what was on the other side of the wall from the scaffold?---On the other side of the wall there had been granular fill, ag lines, granular fill and sand then backfilled to approximately half the wall height.
PN2250
So approximately how far from the top of the wall was that sand?---Between 1.2 and 1.5.
PN2251
Why was the sand there?---It was there because it was backfilled to that height so that obviously we were then in a situation where any concrete that came from the overflowing, should there be any from pouring the wall, would not go down and lodge on the footing and interfere with the subsequent drainage. So that was put in first.
PN2252
So if a person was standing on top of the wall what would be the maximum height they could fall?---They'd fall between 1.2 and 1.5 metres maximum.
PN2253
Can you describe the nature of the wall. What was it built out of?---It was out of 200 mil blocks. They were actually Rockler's but they are a concrete block that has in this case two cores in it designed to have horizontal and vertical reinforcement placed in it during the construction, and the verticals extended after the construction prior to the pouring of the wall. The filling of the cores is for the purposes of resisting surcharging when the backfill is taken to its full height. It is not required until that situation occurs.
PN2254
So do you know the strength of the blocks in question?---Yes, they're 12 MPA.
PN2255
How were they connected together?---They were bonded on a bed of mortar which was also 12 MPA in strength, both the bed joins and the perf ends. The thing had been allowed to cure for a couple of days prior to us setting out to pour the cores.
PN2256
What were these blocks based on? What were they sitting on?---They were sitting on about a 600 x 600 concrete footing with two layers of 5-11 trench mesh in it with R6 stirrups. They were sitting into an excavation that was into a light sandstone.
PN2257
So on rock?---On rock, yes.
PN2258
You have talked about horizontal reinforcing. What was the nature of the horizontal reinforcing?---Horizontal reinforcing was placed as the wall was being laid and they are placed every second course and they varied and in some cases it was Y12 and in some cases it was Y16.
PN2259
Y12 and Y16, what is that?---It is deformed reinforcing bar and it's as required by the engineer for that purpose.
PN2260
What is it made from?---It's made from steel.
PN2261
This is not the first time you have erected a wall of this nature, is it?---No, it's not.
PN2262
In fact, how long have you been occupied in building?---Since I left school. I would say 30-odd years.
PN2263
For how long have you built walls of this type?---Well, as long as I can remember. When I first was working with my father's company when I left school we were doing considerably larger walls than that in telephone exchanges and things. It's the same sort of procedure, just a slightly different reinforcing, depending on what height the wall went to.
PN2264
It might be of some assistance, Commissioner, if I were to tender a diagram. I will show it to my friend. Just before I do, Mr Thompson, do you recognise this drawing that I am about to show?---Yes, I do.
PN2265
What is that?---That is a drawing from the engineer that designed - well, designs a number of buildings for us, but that job in Dee Why.
PN2266
That job in Dee Why, what relation does this have?---That is the typical detail that he wanted in the footing and walls to that project.
PN2267
I tender that drawing, Commissioner.
PN2268
PN2269
MR MURRAY: You have just said that this shows a schematic of the wall at Dee Why?---That's correct.
PN2270
So this shows the details that you have just described?---That's correct.
PN2271
Perhaps for the benefit of the Commissioner could you hold it up, and would you indicate to the Commissioner the features that you have described. Perhaps if we start from the bottom, you have described the footing?---That's the footing with the two layers of trench mesh.
PN2272
Would you hold it so that my learned friend can see?---The footing underneath with two layers of trench mesh separated with stirrups. There's the ag line there with granular fill above, waterproof membrane naturally against the wall. They are the courses of block work. The horizontal bars are shown every second course. Then you will see they refer to starter bars there.
PN2273
Would you just describe what a starter bar is, please?---It's just the initial bar that comes out of the footing and is then added to by having another - in this case having another straight bar lowered down through the cores after the wall is complete for the purposes of making a continuous vertical bar out of the footing.
PN2274
In summary then what we see here is a wall made out of concrete blocks?---Correct.
PN2275
With horizontal and vertical steel reinforcement?---That's correct.
PN2276
And backfilling on one side?---That's correct.
PN2277
You have described a lengthy career in building and extensive experience with these sorts of walls. In your opinion then, a wall of that nature, is that so unstable as to be dangerous to a person standing on top of it?---As far as I'm concerned, not at all. If for some reason a wall is poorly laid with inferior materials that may occur, that could be, but certainly not in any of the walls we've been mixed up in and that wall certainly fits into the category where I would have no concern whatsoever with someone standing on the wall.
PN2278
Evidence has been put that standing on such a wall or the mere fact of a person moving on top of such a wall would represent a serious hazard. What is your comment on that?---I think that's fanciful nonsense, personally.
PN2279
To go back to the method that was being used, you have described then that there was scaffold?---That's correct.
PN2280
There was backfilling on the other side?---That's correct.
PN2281
The person operating the pumping operation, what were they actually doing?---All they were doing was directing the bottom of the two-inch hose - in this case they use a smaller than the normal four-inch hose, they reduce it. They have a two-inch hose and he was directing that along the centre of the wall into the cores to allow the concrete to run down through the cores.
PN2282
Were you going to be using a vibratory settling system?---No. They're not used in a wall of that height. If you had a very much higher wall, maybe twice the height, you may consider it, but you certainly would not use it in a wall of that height, no.
PN2283
So how do you get the concrete down through the cores then?---You use a very high slump.
PN2284
What does that mean?---That means that the mix is very fluid, and you also, generally to assist, you wet the cores. You hose them just with water prior to placing the concrete through to assist in allowing it to flow.
PN2285
What sort of flow rate is that done at?---It's very slow because the faster you run it in or try and run it into the cores the better chance you have of getting build up on one of the horizontal bars and ending up with areas of pockets where concrete hasn't actually reached the footing.
PN2286
How would you describe the flow rate? I mean, what would it look like?---It's very slow, very slow. I mean, you're talking of five metres in 40 minutes or something, where under normal circumstances five metres you would put it through a pump on a floor in about, you know, five or seven minutes at the most.
PN2287
Prior to Mr Mitchell arriving had there been any concern expressed to you about the work method being used?---None whatsoever.
PN2288
Had work taken place?---It certainly had.
PN2289
How much of the work had taken place by the time Mr Mitchell had arrived?---A small amount. I was actually standing on the scaffold beside the linesman when Mr Mitchell appeared at the entry to the site gesturing for me to come over and see him.
PN2290
In the time after Mr Mitchell arrived did work continue?---Yes.
PN2291
Did it continue in the same way?---It did.
PN2292
So when did the pouring stop?---The pouring stopped, as I think I said previously, when the police vehicle appeared and I went over to - they were parking their vehicle on the corner of Clyde Road and Oakes Avenue and I walked away to speak to them and at that stage they - that was when the utility of Mr Mitchell's was driven up to the hopper, and by the time I'd been interviewed by my friends from CSG offering me that financial package - - -
PN2293
Leaving that to one side, the work had continued up to that point?---That's correct.
PN2294
For how long had Mr Mitchell been at the site before that took place?---He would have been there at least three quarters of an hour, probably an hour.
PN2295
In the time that Mr Mitchell was on the site prior to him moving his vehicle had there been any stoppage in the work?---No.
PN2296
Had there been any concern expressed by anyone other than Mr Mitchell relating to the work method being used?---None at all.
PN2297
When Mr Mitchell arrived did he say anything about the work method being used?---No, his first comment to me was abusive. That's when this pushing incident occurred and the swearing and abuse, that's right. That was the first introduction of Mr Mitchell.
PN2298
So when was the first point in time at which a concern about the safety of the work method, when was the first point in time that that was raised?---As the police came over and started to try and get his attention so he would come off the site to talk to them. As I said previously, he refused that. Constable Bartlett then was - after he set out to have his assistant book the vehicle that Mr Mitchell had parked in front of the pump, that's when Mr Mitchell decided to rush over and talk to the police and then there were sudden concerns about - suddenly there were safety issues. That's when the police were involved and when I told these blokes to get back onto the scaffold then.
PN2299
Up until that point in time where was Mr Taylor?---He was standing on his pump about halfway between the driveway access to the site and the Clyde Road intersection, and he was on the far side. He was on the western side of his pump.
PN2300
Did you see him move from that position prior to Mr Mitchell moving his vehicle?---No.
PN2301
At any stage?---No, I didn't, other than when the - as I was coming back with the police to take to - after they had parked their vehicle to talk to Mr Mitchell, he rushed up to me and said: look, this individual has parked his ute in front of my hopper. We can't get the next truck on. What are we going to do? I said: the police are here. They are going to go and talk to him about his conduct. He then - well, he could do nothing. He said: he's stopped the pour.
PN2302
That was the first time that Mr Taylor had left his position on the truck?---That's correct, yes.
PN2303
From the time he commenced?---Other than for the purposes of getting off the vehicle to re-direct the next truck up to his hopper, yes, that's right.
PN2304
So when you were speaking to Mr Mitchell when Mr Mitchell first arrived, where was Mr Taylor with respect to you and Mr Mitchell?---He would have been some 25-odd metres away across - behind his vehicle and the vehicle was behind a tree that was planted in the footpath area of the street.
PN2305
In that first period of time when Mr Mitchell was there did you approach any closer than that to Mr Taylor?---No, I didn't.
PN2306
Mr Taylor has given evidence about a conversation he says occurred regarding union membership. What do you say about that?---I say that that is a complete nonsense. That didn't occur.
PN2307
Have you asked Legend Concrete back to do further work for you?---We have, yes, we've asked them.
PN2308
Do you have a particular view about union membership?---I have no concern whatsoever if someone wants to be part of a union. I only have concerns about the activities of people like Mr Mitchell and his gang of merry men.
PN2309
I would like now to move, if I may, to 11 May. A number of photographs have been put into evidence. Might I approach the witness, Commissioner?
PN2310
THE COMMISSIONER: Yes.
PN2311
MR MURRAY: I would like to go through these photographs with you. The first photograph I am going to show you, and I do not have the exhibit number. I think it is MBA3, Commissioner. It is the first photograph from Mr Mitchell's statement. Would you describe what is seen in that photograph?---Yes, that's a photograph where Mr Mitchell turned up in his utility and stopped in the middle of the road and took some photographs of two settling tanks that we had on the site.
PN2312
Would you just indicate to the Commissioner what you are talking about, please, about settling tanks?---Those two tanks are settling tanks.
PN2313
What is the role of those two tanks?---Just to separate sediment out of the water and allow the water that's going into the council drainage to have less sediment in it.
PN2314
Can you see a discharge from one of those settling tanks?---Yes, I can.
PN2315
Perhaps you could indicate that to the Commissioner, please?---Just there.
PN2316
Evidence has been given about what was coming out of that tank. Would you describe what was coming out of that tank there?---Yes, that's clean water. That's what's coming out of that, clean drinkable water.
PN2317
You have described the circumstances of the taking of this photograph. You were, of course, present then, were not you?---Yes, I'm actually visible there, and so are those two people, Noel and Shane, who are also evident in the photograph.
PN2318
You have described Mr Mitchell approaching or driving up and taking this photograph?---That's right.
PN2319
What response do you have, if any, to the taking of that photograph?---I felt the immediate reaction I had I couldn't believe that somebody would conduct themselves that way. I could only feel that it was intimidatory.
PN2320
Was any comment made?---Yes, the people in question made some fairly offensive comments about: here's this individual again, now he's taking photographs of us.
PN2321
THE COMMISSIONER: I have to say something about this hearsay evidence. I take it these two individuals were summonsed to appear, did not appear.
PN2322
MR MURRAY: Yes.
PN2323
THE COMMISSIONER: I really cannot accept hearsay evidence about what they may or may not have said.
PN2324
MR MURRAY: As you please, Commissioner.
PN2325
However, your view, your feeling about what was going on, what was that?---I believed it was intimidatory and it was provocative and it was consistent with everything Mr Mitchell's proved over the association we've had with him.
PN2326
I would like now to show you this photograph which was the second photograph from the statement of Mr Mitchell. What does that show?---That shows the basement area with a de-watering taking place from the future pit location.
PN2327
When would that have been taken?---That would have been taken in about 11 May.
PN2328
If I can indicate something to you on this photograph. Can you see what that is there?---Yes, that's a piece of formwork timber. I think it's a bit of 4 x 2 that they're using there, they've just left.
PN2329
Could you perhaps just indicate that to the Commissioner, please?---It's there.
PN2330
I will now show you a third photograph, the third photograph from a statement of Mr Mitchell. Could you describe what is in that photograph, please?---Yes, that just shows a three inch pump down the bottom that was one of the pumps being used to do the de-watering into those sediment tanks. It shows the hoses running out to the sediment tanks.
PN2331
If I could just indicate something to you on this photograph. What is this here?---That's the partial backfill of the material that was done behind the wall.
PN2332
Is that essentially a similar situation to that which prevailed on 18 April?---That's correct, yes.
PN2333
Approximately how high from the top of that wall was that backfill?---Well, it varies. In some places it gets as high as maybe 1.5 metres but in other cases it was less, obviously from there less than that.
PN2334
I am now going to show you a photograph which has been tendered as MBA8. What do you see in that photograph?---Two of the subcontractors' utes.
PN2335
It has been alleged that those utes were parked illegally. What comment do you have about that?---That's just total nonsense. They are parked completely legally. It's quite obvious from the photograph.
PN2336
It has been alleged that they were parked close to a corner. Where is the nearest corner to those utes?---The nearest corner would be the intersection of Clyde Road and Oakes Avenue, and that can't be seen because it's so far behind the second vehicle that it must be 15 at least, maybe more metres behind that vehicle. The front layback here is the entry to the driveway to the site. Perfectly parked.
PN2337
Were you present what that photograph was taken?---Yes, I was.
PN2338
What was your view when that photograph was taken?---I felt that anybody that was out photographing workers' vehicles had some hidden agenda, like intimidation.
PN2339
I want to show you another photograph. This is MBA9. What can you see in that photograph?---That shows even more clearly what I was saying. It shows the two vehicles being photographed again with their number plates. It also shows another clear gap of a space for another vehicle prior to - a vehicle that wasn't associated with the site that regularly parks in a position legally at the corner.
PN2340
Perhaps you might just hold that so my learned friend can see. It has been alleged that this also shows illegally parked vehicles. What comment do you have about that?---I say that once again, it's evidenced from the photograph it's a complete fabrication.
PN2341
Do you recognise the vehicles in this photograph?---Yes, I do.
PN2342
Whose vehicles are they?---They're vehicles of Precision Excavation, Noel and Shane from Precision Excavation and Demolition.
PN2343
They were working on the site?---They were. They're the ones that were standing in front of the sediment tanks at the time Mr Mitchell was photographing that with myself standing behind them.
PN2344
Did you see this photograph being taken, or did you see Mr Mitchell taking a photograph like this?---Yes, I did.
PN2345
What was your view of the taking of that photograph?---Once again, total intimidation.
PN2346
I am now going to show you another photograph, exhibit CFMEU6. What can be seen in that photograph?---That shows the eastern end of the site and it shows a section of the fencing that Mr Mitchell opened to photograph both inside and out, presumably in some little plan he had to - - -
PN2347
Were you present when that took place?---Yes, I was. I actually came down and arranged to have that closed up again and I told him: don't open that fence gain.
PN2348
What was the condition of this part of the fence prior to Mr Mitchell attending the site?---It was closed and clipped and after Mr Mitchell had removed the clips and opened it we then wired it closed so that he was unable to further open those panels, because naturally this section here is private property. It has nothing to do with our site.
PN2349
So this section here is private property?---That's correct.
PN2350
So how would Mr Mitchell have got to that point?---Well, he would have accessed it via the private property. He would have trespassed on the neighbour's place to get in there.
PN2351
This is not an official access to the site?---No.
PN2352
This is not a gate to the site?---No, the gate to the site is down here several panels along which was padlocked at the time and which Detective Bell asked me to arrange to have unlocked so that Mr Mitchell could find his way out that way instead of going back the way he came on his third visit on that day from the other side of the site.
PN2353
What was the effect of opening the fence here?---It's producing a safety issue to the people in this other block of units.
PN2354
What, if anything, did you say to Mr Mitchell about that?---I told him that's exactly what he was producing, a public risk problem for us, and that he wasn't to open that again.
PN2355
I am now going to show you CFMEU11. Will you describe what is seen in that photograph, please?---That's showing the corner of the basement parking area. It's where a driveway is yet to be formed to go over the top of it. It shows the continuation of the ramp down to the work area below.
PN2356
What is the surface of that ramp?---The surface is recycled concrete and brickwork that has been ground to between 20 and 40 millimetres and that's been placed over it, but it also has had concrete spread on top of it, loose concrete spread on top of it.
PN2357
Evidence has been given that such a thing is unusual. What comment do you have about that?---Well, as far as we're concerned it's a way of producing an all-weather access and a durable access. As far as we were concerned it's a sensible preparation as a sub-grade for the driveway slab.
PN2358
On this photograph if I indicate to you a particular part of the photograph, was this for access?---No.
PN2359
What parts of this photograph show access?---There's no access here. The only access it can be is from behind that wall.
PN2360
Is that the access that you had provided to that area?---No, we provided ladder access to the other side of the site. That access there was used behind the wall.
PN2361
Was that at your direction?---No, it wasn't, but it was used because they believe that it was a drier access than down the ladder.
PN2362
Evidence has been given about the width of this space here. What comment do you have about the width of that space there, that flat surface?---Well, only that it's just under three metres to the corner of that wall there. So that's probably a bit over two metres, 2.2, 2.3.
PN2363
So how wide is this excavation area?---It's about 600.
PN2364
Could you indicate, please, the three metres that you were talking about. Perhaps you could point to it with this pen?---Three metres is from there to there. That's 600 and that's the difference between 600 and three metres.
PN2365
Do you have an explanation why the photo might not appear to show that?---Only because it's obviously been a telephoto, or a zoom lens has obviously been used which distorts that image.
PN2366
This area here, this excavation, how deep was that?---It was backfilled once again and it was about - in that case at this point it was probably only about a metre. It would be something like that, one metre, 1.2. That area there is only - that's a lower section of the wall. It's only about two metres high.
PN2367
I'm now showing you another photograph. Do you recognise what this photograph shows?---Well, it shows where Mr Mitchell opened the fence and he's inside taking photos outside just prior to me coming along and telling him - getting the fence closed and telling him not to open it again.
PN2368
Is that the same opening that you have described in an earlier photograph?---Yes, that's correct.
PN2369
In this photograph does this show access to the site?---No, it does not.
PN2370
Was this area of the site used for access?---Never. The access to the site prior was on the other side and when the driveway was in place was up here. There was never any access down that site.
PN2371
Now, evidence has been given about this fence and the stability of this fence. How was that fence fixed in place?---It's using concrete bases as provided by the manufacturer and they are then dowelled with Y16s into the ground. Some of the bases are buried under the granular material that had been placed there.
PN2372
I'm now showing you CFMEU9. Can you identify what is shown in that picture please?---That's a piece of formwork timber leaning up against an air vent opening in the block wall or future air vent opening in the block wall.
PN2373
Has that location been seen in any other photograph I've shown to you so far?---Yes, that's the one that we saw from the other side and you can see the end of the timber just sticking out.
PN2374
So where does that opening lead to?---Nowhere.
PN2375
What was that piece of timber?---It's a piece of formwork timber that was along with other pieces they were about to after their de-watering prepare to support the formwork for the driveway slab which was the next stage of the work after they'd done their de-watering and their pit work.
PN2376
Was that at your direction?---No.
PN2377
Was that used for anything?---No, it wasn't.
PN2378
I'm going to show you CFMEU5. Do you recognise that photograph?---Yes, I do.
PN2379
Who is that?---That's me.
PN2380
What are you standing next to?---I'm standing next to formwork scaffold frames that had been delivered to the site for the next stage of the works which was as I say the driveway forming and then the ground floor slab.
PN2381
I'm now showing you CFMEU12. Do you recognise that location?---Yes. That's a photograph Mr Mitchell took obviously with a telephoto or zoom lens and that's one of the precision workers walking down the access of the driveway after he'd come around the back of the wall.
PN2382
It has been alleged that the access to that point required the person to jump over an excavation. What comment do you have about that?---That's not correct. It did not happen and that was never an access to it. It was fenced off and closed off until Mr Mitchell opened the panel for the purposes of presumably photographing something that he could tell the police he was there for.
PN2383
Again the area this person is standing on, what is the flat area, what is the width of that flat area please?---It's about 2. - it's over 2 metres, 2.3, something like that metres.
PN2384
The surfacing on that area?---Is the recycled concrete and brickwork. It also has concrete spread on top of it.
PN2385
I'm now showing you CFMEU7. Do you recognise that photograph?---Yes, that's down in the basement area and where the de-watering was taking place.
PN2386
Apart from de-watering what else was taking place on that occasion?---They were de-watering and then they were getting ready to start forming for the suspended slabs of the driveway, etcetera and the basement slab.
PN2387
Now, evidence has been given by Mr Mitchell suggesting that it is possible to carry out such work under scaffolding. What comment do you have about that?---I would say that is complete nonsense and indicates a complete lack of knowledge of the building industry and construction procedures. It would be quite absurd to be excavating under scaffolding and anybody that did it would either be you know short on mental capacity I would believe.
PN2388
So the absence of scaffolding in this photograph has been commented upon?---Yes.
PN2389
What do you say about that?---The scaffolding is not required at that stage of the job and has been moved because otherwise the stage that they're doing there could not have been carried out which is working down at ground level.
PN2390
I'm now showing you CFMEU13. Do you recognise that location?---Yes, I do.
PN2391
What do you see in that photograph?---I see a sediment tank and I see some scaffold braces and also some screw jacks and in the distance I can see the switchboard.
PN2392
Would you identify that please?---That's the switchboard there and then out in the street are the settling tanks or you can see one of the settling tanks.
PN2393
Now, evidence has been given about the access to that what you have referred to as a switchboard. What comment do you make about that?---Only that the access to that was not from this side. You can see the safety fence along here which that was never an access point. The access is along this fence which is bounding Clyde Road.
PN2394
Would you describe the access to that switchboard please?---Well, it was completely adequate. It was open and adequate and this bracing didn't reach the board. It was - this is distorted by the photograph and the lens presumably that's been used but there was completely open access to that board down against the boundary temporary fence.
PN2395
I'm now showing you CFMEU4. Do you recognise the people in that photograph?---Yes, I do.
PN2396
Who are they?---There's myself on the left and there's Constable Boyce and her assistance.
PN2397
Do you recall the taking of that photograph?---Yes. Mr Mitchell took a photograph and Constable Boyce told him not to.
PN2398
What was your view of the taking of that photograph?---Once again it was an attempt to intimidate presumably in this case the police.
PN2399
Now, in relation to 27 June can you recall that day?---Yes, I can.
PN2400
You have given evidence about the stopping of works on that day?---That's correct.
PN2401
Why were the works stopped?---The works were stopped because as I said then I was not on the site but I was telephoned by both Shane and also the High Mix representative to say that what were they going to do, that they had - there was trouble down there because Mr Mitchell had appeared with he and his cronies and they were stopping the pour and what did we want to do. And I said: well, what's the situation? I was then rung to say that - by Shane to say that he's assured Shane and his father, the workers that if they tried to proceed Mr Mitchell and his gang would stop them and I said: all right, if there's going to be physical violence there send the concrete away.
PN2402
Now, in all of these stoppages that have taken place apart from the time when Mr Mitchell drove his ute between the contract truck and the hopper on 18 April has Mr Mitchell raised with you any safety concerns?---No, he hasn't.
PN2403
Has any of the workers on the site raised with you any safety concerns?---No.
PN2404
On any of those occasions?---No, they haven't.
PN2405
Thank you, I've nothing further.
PN2406
THE COMMISSIONER: Thank you. Mr Latham?
PN2407
PN2408
MR LATHAM: Perhaps if we could just start with MBA10. Do you have a copy of that diagram there?---Yes, I have.
PN2409
These are presumably to scale are they? Would that be correct?---No, it's - well we'd have to look at it but it's a typical section and it's showing this actually is typical as you can probably see it says there it's got a maximum height of 4 metres. So what that's just saying is this will be the configuration up to a height of 4 metres.
PN2410
No, no, I understand that. I'm not saying that every wall in the building is this height?---No, no, none of them are.
PN2411
All I'm saying is that the diagram itself is internally consistent is it, is that correct?---Effectively it is. That's the layout that the engineer wants, yes.
PN2412
Okay and that is the layout that you gave the engineer presumably is it?---Yes, that's right.
PN2413
So for example the process of setting out the dowel joints in the concreting is all as per that diagram is it?---The dowel joints he refers to there at maximum 9 metre centres, that's if he - depending on that's - well between Alan tells us whether or not he requires that literally but basically that's what's occurred, yes. Yes, he has inspected the site and is happy with that. These are vertical joints you're referring to I assume.
PN2414
Yes?---Where you say provide dowel joints at maximum 9 metre centres.
PN2415
Sorry, Mr Thompson, I'm not trying to confuse you. All I'm trying to say is or ask you the question is this is an accurate scale diagram of the site as a whole but not in relation to any part of it, that is correct isn't it?---That is a typical detail of what's required, yes.
PN2416
Yes. Say for example if I take you down to the bottom left-hand corner where there's the agricultural pipe, do you see that?---Yes.
PN2417
And that is a hundred millimetres wide?---In diameter, yes, that's correct.
PN2418
Sorry a hundred millimetres in diameter?---Yes.
PN2419
Right and the trench that it sits in is a hundred millimetres, is that correct?---It actually sits on the footing.
PN2420
Sorry, it sits on the footing but in a trench that is about the same size as the pipe?---No, it will be wider than that.
PN2421
So these in fact are not totally to scale then are they?---No, it's not, no.
PN2422
That is all right. Now, I just want to ask you some questions just quickly. You talked about scaffolding and backfilling and things like that and I think you gave evidence that there was scaffolding all around the inside of the excavated area. Is that correct?---Of the stage 1 section that we're pouring on the 18th, yes.
PN2423
Yes, okay and you also said I think that on the other - - -?---Can I just make this point?
PN2424
Yes, certainly?---Bear this clearly in mind. We're referring to stage 1 which is all that was up there at that stage. There was nothing further excavated. Those later photographs that appeared were at the end of stage 2. So the work around the driveway etcetera, that's all part of stage 2. So those photographs aren't of what work was involved when Mr Taylor was pouring.
PN2425
Now, just so that I've got this clear. You are saying that it went right the way around and the highest gap was about 1.2 and up to possibly 1.5 metres?---Yes, that's right.
PN2426
Between the top of the scaffold and the natural ground level at any stage in the entire area. Is that correct?---Hang on, when you say from the top of the scaffold to the top of the wall - - -
PN2427
Sorry, to the top of the wall, yes?---Yes, yes, it's about 1.2, 1.5.
PN2428
It was never any higher than 1.5 metres, that is what you are saying?---That's right.
PN2429
So if anybody said that there was a gap of 3 to 4 metres between the natural ground level and the scaffold that would be wrong wouldn't it?---Between the natural ground?
PN2430
Yes?---And the scaffold?
PN2431
And the top of the scaffold, yes?---Yes, of course.
PN2432
That would be wrong wouldn't it?---Yes.
PN2433
They would be lying wouldn't they?---Yes, I - can you just make it clearer what you - - -
PN2434
Yes, that is all you have to say, yes or no?---Fair enough.
PN2435
Was there any safety gear on the scaffold? Like were there handrails or restraints for example?---It was five planks wide and it had what was effectively five planks wide, yes.
PN2436
Yes. Did it have any rails for example to stop people falling off it?---I don't think there were, no.
PN2437
You don't think there were?---No.
PN2438
No, okay?---Only the frames but no separate horizontal. Some of the frames went up but not horizontal handrails hooked on the separate standards, no, there weren't.
PN2439
Okay and would it be fair to call it makeshift scaffolding?---No.
PN2440
No, that wouldn't be fair you are saying?---Well, I probably should explain to you.
PN2441
Certainly, go ahead?---Then you will understand, you won't get confused.
PN2442
That would be helpful, yes?---The situation is that on that scaffold what it had to carry were there were blocks stacked on it. It's bricklayers' scaffold. The blocks that were going up there, they each weigh about 13½ kilos. You have block layers working off that and they need material there. They need to carry their mortar, they need to carry their blocks, etcetera and so there's quite a lot of weight has to go on to that scaffold. So it's got to be quite sufficiently strong to hold not just men but to hold a lot of heavy blocks. It also needs to be the height that people who are lifting those blocks at 13½ kilos each are able to lift them at a sensible height and place them so that they're accurate and that they're not just dumped on top of the next bed. They've got to be laid accurately to align and so it needs to be at a height, the platform, that's strong, wide enough and sufficient to carry. The least of the concerns of that scaffold are the weight of the men. It's the weight of the materials.
PN2443
So it would be untrue to say it was just sort of planks of wood and things like that?---That's right.
PN2444
It would be untrue to say that wouldn't it?---Of course it would and you would find also the other thing that is important with that scaffold is that they have things like sole plates under the frames that normally would not be required under normal scaffold where you're just putting men on them because of the need for carrying all the extra weight. So it's quite a sufficient scaffold and more than sufficient for the task at hand of having a bloke stand on them and I can say that because I was standing on it.
PN2445
Yes. You couldn't truly say that it was sort of planks of wood and things like that could you?---No, because that would be - - -
PN2446
You'd be lying - sorry?---You'd be incorrect.
PN2447
You'd be lying if you said that wouldn't you?---That's correct.
PN2448
You'd be lying wouldn't you, yes. Sorry, was that a yes?---Yes, that would be incorrect.
PN2449
You'd be lying, okay and could you truthfully say that between the top of the scaffold and natural ground level would be 2 to 3 metres?---No, you couldn't.
PN2450
You couldn't truthfully say that could you because you'd be lying if you said that wouldn't you?---Between the top of the scaffold and the natural ground?
PN2451
Yes?---The excavation is not that high.
PN2452
The excavation is not as high as 2 to 3 metres?---It's about 3 metres. No, I said 3 metres.
PN2453
Three metres?---Mm.
PN2454
Okay but can I just ask you this, Mr Thompson? It would be a lie to say that the distance between the top of the scaffold and the natural ground level would be 2 to 3 metres?---Yes, of course it would be nonsense.
PN2455
That would be a lie wouldn't it?---Mm.
PN2456
Okay. Now, could I just ask you this? You have been present haven't you during these proceedings so far when people have given evidence haven't you?---I have.
PN2457
Now, could I also ask you about the visit of Mr Mitchell to the site when the police turned up?---Which time.
PN2458
The first time?---Being the 18th of the 4th?
PN2459
Yes, I think that is correct. Could I just have one moment?---That was the first concrete stoppage.
PN2460
Sorry, could I just have one moment? Sorry, could I take you to the second, the second time the police turned up? That is 11 May isn't it?---Yes.
PN2461
Okay and I think that was Constable Boyce was it who I think was here - - -?---And her assistant and then - - -
PN2462
An Inspector Bell I think was it?---Detective Bell appeared later, yes, that's right.
PN2463
Now, on that day I think you have given evidence that at different stages Mr Mitchell was close to you or was far away from you, is that true?---That's true.
PN2464
I'm not sure if you have given evidence about whether Mr Mitchell was close to the police as opposed to you or whether he was far away from them. Can you remember that?---Yes, I can.
PN2465
Yes?---He was - if you ask me at which time. When that photo was taken you can see how far away we were depending on the lens he used but at the time Detective Bell arrived he call both Constable Boyce and Constable Boyce's assistant over to him and they were standing with Detective Bell on the footpath in Oaks Road at the - outside on the footpath which would have been some 20 metres away or something from where Mr Mitchell was.
PN2466
Well, let me ask you this. Would it be fair to say that the police were in hearing distance of Mr Mitchell for the entire time?---No, it wouldn't.
PN2467
It wouldn't be true would it?---No, it certainly wouldn't be.
PN2468
It would be a lie wouldn't it?---That's right. It most definitely would be.
PN2469
Yes?---Because I couldn't hear them unless Mr Mitchell has extraordinary hearing. I couldn't hear them, they were that far away.
PN2470
Yes, and you, would it be fair to say you were standing with the police the whole time?---No.
PN2471
Or pretty much the whole time?---Most of the time but not at the time that Constable Boyce was having - her assistant was standing near me at the time she was having a conversation on Mr Mitchell's mobile phone presumably to someone that may well have been speaking on behalf of Mr Mitchell. But she went away to do that.
PN2472
Can I just ask you this? Would it be true to say that you were standing with the police pretty much the whole time?---No.
PN2473
That would be untrue?---At the time that Detective Bell arrived he called them out, the two constables out, and they went to the front footpath and they were some 20-odd metres away and they had a conversation themselves which I wasn't party to. Actually that was the time that Mr Mitchell was having his conversation on his mobile phone that I heard about how he was going to fix me up.
PN2474
Yes. So if somebody had said that you were with the police pretty much the whole time they would be lying wouldn't they?---That's right.
PN2475
Okay. Now, could I then ask you this? You I think gave evidence that the police had talked to you about arresting Mr Mitchell. Do you remember giving that evidence?---That's right, yes. It was inferred that.
PN2476
And if somebody had said that that conversation did not occur they would lying there wouldn't they?---That's what I - was inferred to me.
PN2477
Well, was it inferred to you or was it said to you?---It was said to me that effectively that is what they were - actually what was said was that they were getting - they wanted to arrest Mr Mitchell but they were getting their duty officer to come down and to adjudicate on the matter and obviously he decided at that stage not to arrest.
PN2478
So you are saying they said to you, just so we are dead clear on this, Mr Thompson?---That's right. I think that's what I said before but yes, I'll say it again.
PN2479
I'm not saying you didn't but you are saying that if somebody said that they would not considering arresting him that would be untruthful?---That's correct, yes.
PN2480
They would be lying wouldn't they?---Well, they would not be telling it as I heard it, no.
PN2481
Okay. Now, I think there was also some discussion you said about threats of physical violence to you while the police were there. Was that ever your evidence? That was your evidence was it?---That's right. Yes, this telephone conversation I overheard from Mr Mitchell on his mobile phone, yes, that's right. Teaching this builder a lesson, fixing him up, yes, that's right. That's exactly what happened.
PN2482
Yes, and where were the police while this was happening to you?---They were out on the street having a conversation with Detective Bell.
PN2483
Now, just so I've got this clear, Mr Thompson, I know it is a long time ago but isn't this the situation? Mr Mitchell hands a telephone to the police does not he?---At the time he did that and that conversation that occurred with Constable Boyce, that was prior, probably some 30 minutes prior to Detective Bell appearing on the site. It was after that conversation that I was advised by the police that they had called for their duty officer and that he was on his way and they were waiting for him.
PN2484
Yes, but I'm talking about the period while Constable Boyce was there?---Yes, what about it?
PN2485
You are saying that in that period there was a threat of physical violence made against you by Mr Mitchell, isn't that what you are saying?---No, no, I didn't say that at all.
PN2486
Sorry, when was it?---What I said to you and I will say it again was that at the time that the threat that I heard Mr Mitchell making on his mobile phone was while the two constables had been called away to go and speak to Detective Bell on the front boundary footpath of Oaks Avenue which was as I said some 20 metres away.
PN2487
Now, Mr Thompson, I will just go back over this because there's some confusion in - sorry, if I could just press on for one little moment?---Yes.
PN2488
There was some evidence that you gave in relation to the question of union membership on the site when the police were there. Do you remember that?---Were you talking about on the 11th?
PN2489
Yes?---We are talking about the 11th?
PN2490
Yes?---Yes, yes.
PN2491
There was some discussion about union memberships?---Well, yes, there certainly was because I said to Constable Boyce at that stage I'd obviously, as I think I said at the time, I got some advice about this outrageous conduct of Mr Mitchell's and what made it even worse was that I'd been advised that no one was a union member on the site. Yet Mr Mitchell was pulling this stunt.
PN2492
In fact was your evidence that you said this was a non-union site?---He was told that there were no members on the site, that's correct, yes. Not a non-union. I don't know what you mean by that word.
PN2493
So that wasn't what you said?---No. There were no members of the union that he represented working on the site or working for the subcontractors that were working on the site.
PN2494
Yes. So if somebody had said that you said that it was a non-union site they would be lying wouldn't they?---Of course they would.
PN2495
Of course they would, wouldn't they. They would be lying wouldn't they?---Can I just - - -
PN2496
No, no, no, no. I will just continue and I will ask you a few more questions?---Yes, good.
PN2497
Then I will ask you some more questions again after that?---That's fine, carry on.
PN2498
Now, if I can just get this right. I've put a number of versions of conversations to you and you have said those versions of the conversations are not true. Is that a fair summation of my cross-examination so far?---Well, no, I don't think so. I don't think you can paraphrase a thing like that. Ask me which questions that you want me to answer for you and I will and if you say that there are some that you have said: were these lies, and I've said no, they weren't, yes, that's true.
PN2499
Yes, okay, Mr Thompson, we will do that?---Okay.
PN2500
What we might do is we might go through them point by point and then I will ask you whether you hold to your earlier evidence, okay?---Okay, yes.
PN2501
You will just have to bear with me for one moment?---Fine.
PN2502
Now, the first question I asked you was in relation to it being a non-union - sorry, the last question. These may not be in order. It was in relation to it being a non-union site and you said you did not use those words, is that correct?---That is totally correct.
PN2503
You said that evidence would be untrue?---Most definitely.
PN2504
Most definitely. That in fact is the evidence is it not of one of the police officers who gave evidence before this Commission?---Is it? What?
PN2505
Well, perhaps for the record I might just indicate that is at PN783 and then we went on and I asked you about a distance of 3 to 4
metres between the natural ground level and the scaffold, the top of the scaffold, and you said no, that was untrue. Is that correct?---Yes,
that's right.
PN2506
I put it to you that that was the evidence of one of the police officers before this Commission. Do you still hold to your evidence?---Evidence that what?
PN2507
That the statement was untrue and that it was a lie.
PN2508
MR MURRAY: Objection, Commissioner.
PN2509
MR LATHAM: Are you saying the police officer's evidence is a lie.
PN2510
MR MURRAY: My learned friend is now asking a rather conflated question about the status of the site on one hand on 18 April and what police who attended on 11 May may have said about it. Perhaps he might rephrase the question in a way which is not misleading.
PN2511
MR LATHAM: No, sorry, this is in relation to the conversation about the police in May, the conversation you had with the police in May?---Yes.
PN2512
MR MURRAY: Well, again I object, Commissioner. We've had the witness cross-examined on the status of scaffolding on 18 April. Now, he is being put a question with respect to what police have said about 11 May, a completely different date.
PN2513
MR LATHAM: Sorry, Commissioner, if I've done that I apologise but I thought that we were all talking about the discussion with the police on 11 May.
PN2514
MR MURRAY: Well, Commissioner, the witness has already given considerable evidence of scaffold having been removed prior to 11 May. We've gone at some length through photographs showing there was in fact no scaffold on 11 May so whatever height of scaffold may have existed could not have been - - -
PN2515
MR LATHAM: Sorry, I accept that point. Commissioner, I accept that.
PN2516
Now, in relation to the scaffold itself - sorry, if I could just go back one tick. In relation to the fencing itself that you gave some evidence on you said that the fencing had been I think erected with a concrete base and that dowels had been driven into the ground, is that correct?---That's correct.
PN2517
And there was some discussion about the clipping of the fencing together. Do you remember that discussion?---Mm.
PN2518
How was the fence clipped together?---Well, with the provided clips, the top of the - - -
PN2519
But what are they just for example?---Well, they are a pre-formed galvanised clip with a bolt between them forming the two sides of them, two parts of them. They fit over each panel of pipe and they hold the two panels together at the top rail.
PN2520
At the top of the rail are they?---No, at the top rail level which is below the top of the post.
PN2521
Right and - - -?---And that's one of the ways of holding them together.
PN2522
Is that the way you used?---Yes, generally. Otherwise if the clips weren't there they were wired and that's another acceptable practice.
PN2523
Okay. So in relation to the first set of clips you refer to they've got some screw and nut process in have they?---Yes, that's right.
PN2524
So to separate them you'd need to unscrew the nut?---No, you can just slide them up.
PN2525
You could lift them out of the - - -?---If you wanted to an adult could. A child couldn't but an adult can just slide the clip off and then move the panel aside.
PN2526
What you are saying I think is that Mr Mitchell actually separated these two pieces of fencing so that he could get through?---He most definitely did. I saw him do it.
PN2527
Were they clipped together with this clip that you talk about or were they wired together?---They had a clip there on that section but they were wired. What we did was I got one of the blokes to go and wire them back together because I wasn't going to have that sort of conduct continuing and exposing us to a risk thanks to his misconduct.
PN2528
Now, just so I've got this absolutely clear, if I could show you this being CFMEU6, is that the gap that you say Mr Mitchell made?---Yes, that's correct.
PN2529
Was that gap previously clipped or wired?---That I believe was clipped.
PN2530
Where is the clip on that photo - sorry, I will pass it to you just so that you can - - -?---Yes, you probably won't be able to see it but it will have thrown on the ground so that's normally where they end up. Yes, that's right.
PN2531
So you are saying, just so I've got this entirely clear, you are saying that Mr Mitchell unclipped the clip at the top?---Yes.
PN2532
That you say existed at the top?---That's right.
PN2533
And what, threw it away?---Threw it down on to the ground, yes. That's what happened. You can see the clip there.
PN2534
Yes?---You can see the clip there, you can see the clip there, you can see it there. That's what it is and it slid up, put it down on the ground and then accessed, opened it and accessed the site. Now, what we did or what I had done was I decided then that if that was his conduct we had to close it up and we wired it and that's what we did which meant that then he'd have to bring his side-cutters along with him or his nips to cut it open which presumably he didn't at least do at that stage because the police were on the way.
PN2535
That just didn't happen at all did it, Mr Thompson?---It most definitely happened.
PN2536
Most definitely happened?---That's right.
PN2537
Now, if I could take you to - sorry, just so we've got this clear, 18 May?---Yes.
PN2538
Sorry, 11 May?---Right.
PN2539
And you gave evidence to Mr Mitchell about - sorry, Mr Mitchell not being in hearing distance at all times of the police. Do you remember that?---That's correct.
PN2540
Now, just for the record PN864, a statement of Constable Boyce, states that he, being Mr Mitchell, was in hearing distance and then
in relation to a further question said: in hearing distance of you the whole time was he? And the answer was yes. Are you saying
Constable Boyce is lying?---I'm saying that Constable Boyce may not have been aware that she left and went to the front footpath
to talk to her superior.
PN2541
You previously said that that evidence would be untruthful didn't you?---Well, it would be incorrect, yes.
PN2542
No, no, no, you said it would be untruthful didn't you?---Well, untruthful, incorrect, yes.
PN2543
Yes, a lie in fact wasn't it?---I don't - I wouldn't be putting a term like that.
PN2544
No, that is what you said wasn't it?---No, I didn't. You said lie I think. You were the one that used the term "lie."
PN2545
And did you agree, did you agree?---No, I said it would be untrue. I think there's a little bit of a difference.
PN2546
Okay are you saying - - -?---To lie indicates more a deliberate.
PN2547
Sure. I'm just putting this to you so that we can have your side of the story on this, Mr Thompson?---Yes, sure.
PN2548
Are you saying that the evidence of Constable Boyce in relation to this is untrue?---Yes, that's true, yes.
PN2549
Now, I also asked you a question about whether the police had said to you that they were considering arresting you - sorry, arresting Mr Mitchell?---Yes.
PN2550
And you said yes and I said to you: well, if someone said that that wasn't true - sorry, that that hadn't happened, they would be telling an untrue statement. Do you remember that?---That's correct.
PN2551
And you agreed didn't you?---Yes, that's right.
PN2552
Now, Constable Boyce gave evidence that she certainly didn't say: I'm going to arrest him now, or anything like that. Would she be lying in that evidence?---I don't think she was lying but she was making a pre-emptive comment to me - - -
PN2553
Sorry, just for the - - -?--- - - - prior to her superior arriving who said no, they wouldn't, apparently decided they wouldn't arrest him.
PN2554
Sorry, just for the record that is set out at PN887?---Mm.
PN2555
So you are saying that evidence that she gave there was untrue?---She told me that they were considering - she was considering having him arrested but she had her superior coming down to assess the situation and that's duly what happened and you have presumably as you know had evidence from Detective Bell on that.
PN2556
And Constable Boyce said at PN889 that if somebody said - this is a question: if somebody said about you that you had said we're
considering arresting him, that wouldn't be truthful would it? She said no?---Well, that was her - - -
PN2557
So that evidence presumably of Constable Boyce is untrue too is it?---Well, it's not my interpretation of what she told me at the time but that presumably will have been affected by the fact that the final decision was made by her superior which is pretty understandable.
PN2558
Yes, but isn't this the case, Mr Thompson, your evidence on material elements of this is different to Constable Boyce's isn't it?---Insofar as that particular item is concerned, yes.
PN2559
Yes. Well, just using that particular event?---That's right.
PN2560
Either she is telling some untruthful or you are. That is the truth isn't it?---I don't see it that way, no.
PN2561
Sorry, you are now saying that her evidence is not untruthful?---No, I think I've explained it. I will go through it again for you.
PN2562
Certainly. Take your time?---What Constable Boyce told me or inferred to me was something she was considering at the time prior to her superior arriving is what I referred to. Now, quite frankly I believe what her superior later decided for whatever reason is something that finally occurred but that was certainly what she told me she was considering at that time, yes.
PN2563
Well, let me just go back. Either you are telling the truth on this or Constable Boyce is telling the truth on this. That is the case isn't it?---Well, you can take that impression if you want to, yes, but as far as I'm concerned - - -
PN2564
Well, I'm asking you?---What I told you is what I was told at the time and that is the truth.
PN2565
Yes. Well, let us go back?---But could I - - -
PN2566
No, no, let us go back, Mr Thompson, just so we are quite clear on this. You are saying that you are telling the truth?---That's correct, yes.
PN2567
Okay and you are saying that people who use the words that Constable Boyce used were not telling the truth?---I said once again, and I will say it again, that Constable Boyce inferred to me that she was considering arresting Mr Mitchell.
PN2568
And she has denied that hasn't she in evidence?---She has, when she was cross-examined I believe she made that statement, yes.
PN2569
She denied it didn't she?---That's correct.
PN2570
So is she telling the truth or are you telling the truth?---Well, as far as I'm concerned I'm telling the truth but I don't think Constable Boyce is on trial here.
PN2571
No, no?---I think Mr Mitchell is the man that - - -
PN2572
I'm just asking you because the Commissioner - - -?--- - - - should be going away in the handcuffs.
PN2573
I will come back to that. The Commissioner here has to determine whether you for example are telling the truth on this point or whether Constable Boyce is telling the truth?---Fine.
PN2574
Are you telling the truth or is Constable Boyce telling the truth?---As far as I'm concerned what I told you I believe is true and it is true. That's what was said.
PN2575
Okay. Could I infer from that that you are saying Constable Boyce is not telling the truth?---I am not saying either way what - I've tried to assist you in saying that it was something she was thinking about at the time which was finally decided by her superior and may well have been something where her consideration of the matter was related to what her superior finally decided rather than what she was thinking about in the three-quarters of an hour prior to him arriving.
PN2576
Now, if perhaps I might move on. You have been very helpful on the point but if I could just move on. You talked also about the space between the wall and the natural ground level being backfilled. Do you remember that?---Yes.
PN2577
And I think your evidence was is that it was backfilled to somewhere like 1.2 metres. Was that the figure you used?---Yes, approximately. In some cases it obviously was filled higher than that but certainly 1.2 to 1.5.
PN2578
Okay but no higher than 1.5 metres?---Between as I said in some cases it was higher.
PN2579
No, no, possibly less?---No, higher than that. There was more filling than that.
PN2580
Yes, sorry, sorry, I understand that. Okay and what was it filled with just so that I understand this clearly?---With granular filling at the bottom for the first approximately 500 to 700 millimetres and then it was a sand fill above that.
PN2581
Okay and so you could easily see it couldn't you if you were standing near the wall?---Yes, sure.
PN2582
Easily see it?---Yes, I mean it's below the wall, of course.
PN2583
Certainly, certainly?---It's there, yes.
PN2584
And no one came along and took the backfill out did they?---No. The reason the backfill was only put there to that height was until the wall was filled to full height and the ground floor slab was poured because that is under the instructions from our engineer. He makes those decisions.
PN2585
So when Mr Mitchell turned up and took the photos no one had come along and taken the backfill out had they?---No, and it hadn't been - was in the situation it was prior to the filling of the wall, yes.
PN2586
Yes. So when Mr Taylor says for example that he didn't see backfill to that extent he would be lying too wouldn't he?---I don't know why he wouldn't have seen it because it was there.
PN2587
Okay. Now, could I show you this photo being CFMEU I think it is 12 or 17. Perhaps if I can just show my friend. Sorry, Commissioner, I just can't read my own writing.
PN2588
Now, could I show you this photo and could you just hold that photo up and point to the backfill in that photo?---Well, there's a lot of shadow in here but it's down here.
PN2589
Sorry, can you just point it to me?---Down there.
PN2590
And can you see it in that photo?---Not very easily, no, because it's in shadow.
PN2591
In fact you can't see it at all there can you?---Well, I wouldn't agree with that. As I say it's in shadow but you can only see down there about three courses anyway and that's only 600 so we're not - it's not really relevant.
PN2592
Could I show you this one being CFMEU14 and could you show me in that photo where the backfill is?---Well, once again it's hidden by the shadow. You can't, I mean as I say your shadow is covering on that photograph anything below three courses or 600.
PN2593
Okay and then if I could show you CFMEU11 which also shows the gap between the wall and the natural ground level?---Yes.
PN2594
Could you show any backfill in that photo?---No, because all you can see there is just over one course. You've got - you're probably looking down about 400 millimetres from the top of the wall. So no, you couldn't see it. You wouldn't expect to see it.
PN2595
Isn't the truth of those photos that none of them show any backfill at all?---No, that's not correct. I think I've just explained that to you. It's in the shadow.
PN2596
Isn't the truth this, Mr Thompson, that there wasn't sufficient backfill in there to bring it up to a height of 1.2 metres? Isn't that the truth?---No, that's not the truth at all.
PN2597
Isn't the truth this? You have to say that there was backfill there because otherwise the site is extremely dangerous isn't it?---No, that's not correct.
PN2598
And that is why you have said it isn't it, Mr Thompson?---No. What you are failing to understand also and you appear to have not been advised about is the procedure for putting these walls in and what you don't understand that I'll explain to you is that these walls were laid in two stages as well. Not only were there two stages to the excavation and that on the 18th of the 4th we were doing the completion of stage 1 but even stage 1 had two stages to it and that is that the walls were only taken to about 1.5 high and at that time the backfilling operation by machine was done where the granular material was put over the wall and also the sand fill was carried out. Then the block-layer brought his scaffold in and laid the rest of the wall to the full height and that was the construction procedure that took place and that's how it's done. That may make it easier for you to understand how it was done.
PN2599
Yes. Perhaps if I can just go back. You have to say that there was backfill there don't you?---No, I don't have to say anything that isn't the truth and I told you what the truth is.
PN2600
Okay. Well, just answer my questions, Mr Thompson?---Yes, I don't have to tell untruths, no. I don't need to.
PN2601
No, no, and I hope you wouldn't but you have to say that because if there hadn't been backfill the site would have been extremely unsafe wouldn't it?---There would not have been. If there had not been backfill for some reason and it wouldn't be our normal construction procedure but had there not been then we would have provided some form of protective barrier over that area if we were working over that area. As you can see here we weren't working over that area. People were working down below and the barrier there is the fence which was breached by Mr Mitchell.
PN2602
I will get back to that and the reason why - sorry, and you gave evidence that there was backfill didn't you?---That's right, yes, most definitely because it happened.
PN2603
And you gave that evidence before you realised these photos were in existence didn't you?---Sorry?
PN2604
You gave that evidence before you realised these photos were in existence didn't you?---I knew that Mr Mitchell was taking photos on the site that day. I watched him. I watched him photograph the utes, I watched him photograph the workers, I watched all that. Photographed me, photographed the police, I saw him wandering around with his camera, yes.
PN2605
Well, can I ask you this, can I ask you this, Mr Mitchell?---Thompson.
PN2606
Sorry, Mr Thompson. If you had known that those photographs were in existence you wouldn't have said the wall was backfilled would you?---I most - I tell you what had happened. I most definitely would have said that. I knew they were there, obviously they were there. Why would he be taking photographs with no film?
PN2607
Because the - - -?---Unless it was a direct - unless he'd worked out how to intimidate people without wasting cost of film.
PN2608
Because the wall wasn't backfilled was it, Mr Thompson?---It most definitely was backfilled and your own - his own photographs show you. If you bring a few of your others over I will show you.
PN2609
If I can just get those photographs back from you, Mr Thompson?---Bring some of the others over and I'll show you.
PN2610
Now, there was some discussion if I can just briefly dwell on this about this photo here being CFMEU12?---Yes.
PN2611
And Mr Rech from WorkCover was cross-examined as to what the safety implications of this photo?---Mm.
PN2612
And I think what was put to him was that while the - sorry, perhaps if you could just hold it up so that - while the area where this man seems to be walking from may not have been a proper access there was in fact access from around the back. Do you remember that discussion taking place?---That's right, yes.
PN2613
So in fact there was no safety issue in terms of access to that area?---That's right.
PN2614
Do you remember that?---That's right.
PN2615
And I think there was also some discussion about a plank of wood that seemed to be an access way through that corner. I'm not sure if that is in that photo. Yes, sorry, the plank of wood that that man is just behind?---Yes, yes.
PN2616
And that there seems to be in that photo some sort of block on top of that plank of wood is there?---That's right, yes.
PN2617
What is that block, Mr Thompson?---That's one of the - it is a fence base, concrete fence.
PN2618
It is a fence base isn't it?---Yes, that's right.
PN2619
But you are saying that wasn't put there deliberately to allow people access to that part. It was just - - -?---Well, to start with that's a piece of form work timber. It's not a plank. It's not an access plank and despite what Mr Rech has said about all sorts of bits of timber and things that's not an access plank and I've never seen anybody on our sites ever using bits of timber like that.
PN2620
In fact that is not an access plank because you are saying you don't need to use that to get access?---That's correct. They're not working there.
PN2621
Because you have got access from around the back?---And the ladder that they had on the other side of the site.
PN2622
What is that block doing there, Mr Thompson?---I don't know, I can't tell you.
PN2623
It just randomly found its way there did it?---Well, we have surplus panels on the site for other areas if we want to block other areas off and we have surplus bases and we've got surplus clips etcetera and that has been - that will be surplus to the panels that are going along that driveway and will have been stacked along there somewhere at some stage and someone has put it there, that's all.
PN2624
Right. They haven't put it there because that is the access to that area have they?---Well, it would be a fairly nonsensical thing to do to put it there in the middle of what - this is apparently the - if that was to be an access way what would you put a concrete block in the middle of it for? I mean you tell me, I don't know. I don't have the answer. Please tell me why would someone do such an idiotic thing if they were trying to walk along that piece of timber.
PN2625
All right. Now, can I then show you this photo being CFMEU11 and if you could just hold that up for one moment?---Right.
PN2626
You will see that that is from a bit further back isn't it?---That's right.
PN2627
And you were asked questions I think about this area?---Yes.
PN2628
Where do you say the access from the back of that wall is?---For what they had used was walked round behind this wall. This wall was filled to about half height. They walked round there, round the end of that wall and down the driveway.
PN2629
So through that post coming down from the fence?---Yes, between the fence and that wall, yes.
PN2630
That is what you say the access was do you?---No, I don't say that was the access. That was used. It was used by this bloke here actually, the one that Mr Mitchell photographed that you have got here in your CFMEU whatever it is, 12. That's what he'd done.
PN2631
It is not a very desirable state of affairs is it, Mr Thompson?---In what way? It was not something I asked him to do but he chose to do that because there was level access around the back of that wall from the other side of the site. You'll probably see it on the other - maybe see it on some of your drawings but he chose to go that way. He could have used the ladder from the other side. He didn't do that but that was something that - I didn't see it as something where he was running any great risk there but it was his choice. It wasn't my direction.
PN2632
Now, I want to put a scenario to you, Mr Thompson, that will bring these matters to a reasonably quick end. Mr Hoey - sorry, Mr Hoey Thompson - sorry, Mr Hoey Taylor put a scenario today in evidence where he said, if I can just briefly summarise it, he said that he had turned up on the site and that you said to - sorry, that he didn't see you physically or verbally threaten Mr Thompson, that he recalled Mr Thompson, that being you, saying to Mr Mitchell: I'm having you up for assault. And Mr Mitchell saying: I didn't even touch you. Do you remember that conversation?---Well, I haven't read his statement.
PN2633
Sorry, do you remember that - - -?---Well, I don't remember that, didn't read his statement.
PN2634
Well, that is all right but I will put this to you then and this was the subject of some cross-examination?---Right.
PN2635
There was an allegation that Mr Thompson, being you, approached him and said words to the effect of: can I wash out - he said: can I wash out in here? You said: yes, are you in the union? Do you remember that?---No. Well, there was discussion about this as he was about to leave the site.
PN2636
About union membership was there?---Yes, because Mr Taylor said to me he - after Mr Mitchell had gone on his merry way after he'd stopped the pour and we'd had to send the concrete that was going off in the truck in the street and Mr Taylor had to pump before the concrete went off in his lines, had to pump what was left in his hopper and in the lines into the site to protect his pump, he came up to me and apologised to me and said: look I'm sorry we couldn't continue with that because of Mr Mitchell's conduct. And I said: well, look it's not your fault. And he said: look we had to do that because we're actually in the union and we go to a number of sites around Sydney and a number of those sites are on the basis where they're no-ticket no-start sites. And he said if we don't join the union we're not allowed on those sites.
PN2637
Are you making this up as you go along?---You might like to think I am but it's actually what happened.
PN2638
Well, that is what happened is it?---That's exactly what happened.
PN2639
And you set this out in your statement did you before this Commission hearing?---No, I said that he apologised to me and that he was in the union and he was sorry that he wasn't able to proceed with the pour because of Mr Mitchell's conduct. That's right but that was what he told me. He was explaining why he was in the union because he would be denied certain sites on these no-ticket no-start bases that apparently exist around Sydney as we all know about.
PN2640
Well, I will come back to that point?---Fair enough.
PN2641
Let me put this to you. Isn't this the situation? You asked him whether he was in the union and he said yes?---No, that's not correct.
PN2642
That is not correct?---I didn't at any time ask him that. He came and volunteered it.
PN2643
Sorry, he told you. He told you that he was in the union?---He told me that he was in the union at the time he apologised for the delay that was caused by Mr Mitchell's conduct.
PN2644
And at that stage he said - sorry, you said words to the effect of: no union pumps will be doing my work. That is what was said wasn't it?---No, that's exactly not what was said.
PN2645
In fact what you wanted to make sure was that your site would remain a non-union site wasn't it?---No, that's not correct. As far as I'm - I said before Mr Taylor volunteered the information about his union membership and explained to me why they needed to be in the union but as far as I'm concerned Mr Taylor's done work for us in the past and he'll be offered work in the future. In fact he was offered here.
PN2646
He will be offered work in the future will he?---Most definitely, yes.
PN2647
And has he been offered work since this concrete pour?---Yes, he has actually.
PN2648
Well, that is a lie isn't it, Mr Thompson?---No, that's not a lie.
PN2649
Because he gave evidence today that he has not been offered work hasn't he?---Yes, I heard all that. I heard all that but the situation was that he was invited back to do one of the other. There have probably been another five or six pump jobs all done with different pumps since then and he was offered one of those pours but he was unable to attend on that day because he was pre-booked elsewhere. Now, that's the situation and I don't have - as I say we've dealt with, we dealt with the people that used to own his pumps. We don't have any problem.
PN2650
Isn't this the situation, Mr Thompson, and this is his evidence isn't it?---What's that?
PN2651
His evidence is is that you have offered him no work since then. That's his evidence isn't it?---I heard what he said here this morning and - - -
PN2652
Is he lying?---I don't agree with that.
PN2653
He is lying is he?---I believe that is totally incorrect.
PN2654
Because if he is not lying what it means is that you are punishing him for being a union member isn't it?---That is not the situation. I do not accept what he said and I know for a fact that he's been offered at least one of the five pours since Mr Mitchell's first illegal activities.
PN2655
Well, that is a lie isn't it?---That is not a lie, no, it is not.
PN2656
And your position is is that you will not deal with any unions unless they can prove that there are union members on site isn't it?---No, that's not correct.
PN2657
In fact this is the truth isn't it? This is the truth that you in fact said to Mitchell: no union member is on site, I have nothing to discuss with you. That is what you said isn't is?---He has been told that on one of the visits he has made illegally on to the site.
PN2658
Yes. He was told that - - -?---And all he said was: but there's some potential union members here so I'm going to turn up any time I feel like it just so I can get some - to talk to some potential union members. But really the hidden agenda behind this is not something I would believe the union would be interested in.
PN2659
No, it is not a hidden agenda is it?---The union are interested in more straightforward things than what Mr Mitchell is involved in.
PN2660
It is not a hidden agenda is it?---It most definitely is.
PN2661
It is an open agenda of yours?---It's a protection racket agenda.
PN2662
It is - - -?---That's what Mr Mitchell's involved in. The union I don't believe are involved in protection rackets that they would openly condone.
PN2663
Well, let me - - -?---But Mr Mitchell is, yes. He and his mates from CSG.
PN2664
Well, when you have finished.
PN2665
THE COMMISSIONER: Now, listen, come on. We've had this matter discussed before, the role of CSG. They were allowed to intervene in the proceedings. They were excused from proceedings on the basis that no evidence had been adduced about the allegation of their involvement. Now, I'm not going to allow further reference to them.
PN2666
MR MURRAY: Commissioner, might I suggest perhaps a few minutes for me to speak to my client about what he has just put?
PN2667
MR LATHAM: No, no, no. We are not having this person give further instructions or get further instructions or advice while he is being cross-examined?---Well, this may not - can I just say this to you? This may not be the place for those discussions.
PN2668
Could I just ask this question to you? Did you understand what the Commissioner just said then?---Yes, I did but I do want to say this that I'm very determined to see that there will be an investigation of CSG and Mr Mitchell's conduct and obviously it's not this place and it will need to be the police that are involved in it and that's something that I will be pursuing.
PN2669
Okay. Now, going back, Mr Thompson, this is the situation isn't it? When Mr Mitchell first rang you to try and go to your site you said: no union member is on site, I have nothing to discuss with you?---He was told that with reference to union members and his statement that he was down there to discuss WorkCover issues he was told WorkCover handled WorkCover issues. That's what he was talking about in the beginning was WorkCover issues. He said: you have to get down on to this site and talk to me about WorkCover issues. I said: no, I don't talk to the union about WorkCover issues, I talk to WorkCover. If WorkCover have any issues they can talk to me at any time of the day and night and that is not a problem.
PN2670
Well, let - - -?---Then Mr Mitchell said: you have to talk to me, get yourself down to the site. And I said: no, I won't. He said: all right I'll get WorkCover on to you. I said: well, that's your choice. And then that presumably was his action that resulted in Mr Highfield contacting me and saying had visited the site and presumably that was the report that he has provided to the Commission.
PN2671
Perhaps if I could ask you this question and you could say yes or no. Did you say to him: no union member is on site, I have nothing to discuss with you?---No, I didn't say that to him because that wasn't brought up.
PN2672
All right?---The question was: get down and discuss the WorkCover issues on the site, you've got to see me. And I said: who are you from?
PN2673
All right, Mr Thompson, you have answered the question?---He said I'm from the CFMEU.
PN2674
You have answered the question. You said you didn't say that?---That's right.
PN2675
And on 11 April when you had a discussion with him he - - -?---11 April?
PN2676
Sorry, 18 April he said: I'm Tom Mitchell from the CFMEU and I want to talk to you, and you said: there are no union members on site so leave, didn't you? That is what you said?---He was - - -
PN2677
Just yes or no?---There were discussions about that and those discussions about union memberships occurred when Constable Bartlett appeared.
PN2678
No. Well - - -?---Because he was asking that question.
PN2679
That was the first time it was heard?---To do with the right of entry.
PN2680
Okay. It didn't occur when he turned up and said: I'm Tom Mitchell from the CFMEU and I want to talk to you, and you said: there are no union members on site so leave?---I didn't have a chance to say anything because Mr Mitchell was swearing and then proceeded to push me and give me a lecture on what he was going to do and what he wasn't going to do.
PN2681
Okay but in fact that is the evidence that you gave in an AVO application in a sworn statement and that you gave in a sworn statement to this Commission isn't it?---That's right, that I've become aware that there was no one on that site that was in the union, that's correct. I became aware of that.
PN2682
Yes. In fact the wording that I put - - -?---And that's a paraphrasing of it, yes.
PN2683
Sorry. In fact the wording that I put to you that you have denied was your sworn evidence wasn't it?---There is a statement in there that has been obtained is effectively a paraphrasing of the information I have obtained over the months of disruption that Mr Mitchell has created on that site and yes, I have become aware of that. I've also been advised obviously as to what rights he has and what rights he hasn't had and - - -
PN2684
Yes. Can I just ask this question, Mr Thompson, just so that we don't have to spend all day to listening to this?---Yes.
PN2685
The evidence that you gave in relation to those specific conversations was given in your sworn statement?---That's correct.
PN2686
In a court over an AVO matter?---That's correct.
PN2687
A criminal matter?---That's it.
PN2688
Which people may be arrested?---Yes, that's right.
PN2689
And given to this Commission?---Yes.
PN2690
And you are now saying that you did not say those things?---No, I'm not saying that at all.
PN2691
Sorry?---What I'm saying is that I have said that and I have become aware of that and that is a paraphrasing that AVO information is incomplete as I've said before I think to yourself and there is more information there that is a paraphrasing of the situation over a number of months put into a few paragraphs, yes.
PN2692
So, Mr Thompson, did you use those words or not?---Did I? Yes, I have. Yes, I've used those words.
PN2693
You have?---Yes, that's right.
PN2694
And you have just denied having used those words before didn't you?---What do you mean I've denied?
PN2695
I put them to you - - -?---I am aware that there were no union members on site, yes, and I've become aware of that.
PN2696
No, no, the conversation, the two conversations that I put to you about 5 minutes ago you denied didn't you?---About Mr Mitchell, the first conversation on the site on the 18th of the 4th.
PN2697
Yes?---There are no members on the site, get off the site.
PN2698
Yes?---That's right. The first thing that happened on the site there was - - -
PN2699
Sorry, Mr Thompson - - -?--- - - - Mr Mitchell attacking me.
PN2700
Mr Thompson, just listen to my question and try and answer it. The statements, the dialogue that I put to you you denied about 5 minutes ago didn't you?---About the union membership being the first discussion on the 18th of the 4th?
PN2701
Yes, yes?---That's correct, yes, I denied it.
PN2702
Okay, all right?---I didn't do any talking in the beginning, Mr Mitchell did.
PN2703
So your sworn statement in relation to those two conversations is untrue isn't it? Yes or no?---I don't know what you are saying. There's a not a yes or a no to that because I don't really follow what you're trying to say. It doesn't make a lot of sense to me.
PN2704
Well, look I will just put this to you, Mr Thompson, just so you are clear where I'm coming from?---Thank you.
PN2705
The evidence you have given today and in the past hearing substantially deviates from the evidence that you were willing to put up and you did put up in a sworn statement to the police in criminal proceedings and to this Commission. That is true isn't it?---No, that is not true.
PN2706
Commissioner, I'm probably going to be about another 20 minutes. It may be a bit shorter if we take the luncheon break now and I think I can probably cull my questions down a bit.
PN2707
THE COMMISSIONER: I think we will continue on.
PN2708
MR LATHAM: Do you want to continue on now?
PN2709
THE COMMISSIONER: Yes, thanks.
PN2710
MR LATHAM: Okay.
PN2711
THE COMMISSIONER: Of course after this evidence - - -
PN2712
MR LATHAM: That is it.
PN2713
THE COMMISSIONER: That is it, yes, okay.
PN2714
MR MURRAY: Well, subject to re-examination.
PN2715
MR LATHAM: Sorry, of course, yes.
PN2716
Now, you gave evidence today that Mr Taylor said that he was concerned about the location of the concrete pump. Do you remember that discussion?---Yes, when he was concerned about his boom reaching, yes, that's right.
PN2717
But in fact he gave a slightly different version didn't he, that he thought the place where you were seeking to put the pump was actually not particularly safe or not stable I think the words used?---Yes, I don't know why he would have said that because that wasn't the case. He didn't say that to me. He said that he was concerned about the reaching of the boom, that it wasn't long enough and he then - I said: right where do you want to put it? And he said: well, I'd rather put it on the footpath. So we then made the necessary provisions.
PN2718
Well, I will put it to you that Mr Taylor was truthful in that evidence. What do you say to that?---I'd say that's not correct, no. Definitely not.
PN2719
Okay. Now, you also say that Mr Mitchell was there at least an hour - sorry, this was the evidence you gave today and I think you were - just so I'm clear on this I think you were referring to an hour before the police turned up was it or was it an hour before the concrete stopped being poured?---No, he was there. You're talking about before the police arrived?
PN2720
Sorry, this is the day that the Mr Taylor was referring to?---Which day are we talking - Mr Taylor, right, the 18th, yes.
PN2721
Yes, and you referred to there being a space of about an hour. Was that about an hour while the concrete was being poured or before the police turned up?---The police would have been at least - Mr Mitchell was there for some probably 15 or 20 minutes initially and then we waited some 40 minutes for the police. So whatever that adds up to. It's around about three-quarters of an hour before the police arrived, 50 minutes, something like that.
PN2722
All right and you are saying, I think the evidence you gave was that Mr Taylor did not get off the truck. Is that correct?---Only to - between the first and second truck. He got off to direct the driver back to the hopper, yes.
PN2723
Okay and at the finish of the second truck pour there weren't any further trucks that were poured were there?---No. He - there was another truck parked in the street.
PN2724
Yes, but that was - - -?---Ready to back up but at that stage - - -
PN2725
But that truck didn't pour did it?---No, because Mr Mitchell backed his ute in as soon as the second one left. That's when the police arrived.
PN2726
Okay and Mr Taylor gave evidence today or sorry, put forward a statement today and was cross-examined on it that when he turned up he raised safety issues with you. Do you remember that discussion?---I haven't ready his statement but anyway, yes.
PN2727
Sorry, that safety issues were raised by Mr Mitchell, I'm sorry. Do you remember that discussion?---Well, if it's out of Mr Taylor's statement I'm not familiar with it.
PN2728
Okay. Well, I understand. Perhaps if I can put this to you, Mr Thompson. I put to you that Mr Taylor raised the issue of adequate scaffolding with you prior to Mr Mitchell arriving?---No, he didn't as I - - -
PN2729
No, that is all right. All I'm asking is to either say yes that is true or that is not true?---Yes.
PN2730
Just so you have got an opportunity to respond?---No, that's not true, yes.
PN2731
Okay and I put it to you that after pumping about one load of concrete Mr Mitchell arrived after one load had been pumped. Would that roughly be correct?---Yes, that would probably be almost one load. It wouldn't - no, it wouldn't have been quite that but certainly half.
PN2732
Or about one load?---Yes, half a load.
PN2733
So something like 20 minutes after the first pour started?---Yes, it would be something like that approximately.
PN2734
Something like that isn't it, yes. And that, I'm not sure if you could see or hear this but there was a conversation between Mr Mitchell and between Mr Taylor. Did you see that conversation or hear that conversation?---No, not until the police arrived because - do you want me to tell you what actually happened when the - - -
PN2735
No, no. I'm just asking you some questions?---I can give you word for word if you want it.
PN2736
I'm just asking you. You couldn't see or hear?---I didn't see any conversation because Mr Taylor was on the pump. As I say other than direct - he got off to direct the second truck up to his hopper and then proceeded and at this stage Mr Mitchell after his incidents with me was standing on the site and until the police arrived.
PN2737
Then Mr Thompson and - sorry, yourself and Mr Mitchell then became involved in a heated conversation. That is correct isn't it?---Well, that was as he arrived on the site, yes.
PN2738
And that was in relation to issues such as scaffolding?---No, it wasn't. It was in issues that I apparently wasn't showing him due respect that he talked about he's like the mounties, he always gets his man is one of the comments he made.
PN2739
Where does this come from Mr Thompson?---Ask your client. I don't know where he thought it up but that's one of the comments he's made.
PN2740
We haven't heard any of this before have we?---Well, I've heard it, yes.
PN2741
In your own mind?---No, not in my own mind.
PN2742
In this hearing?---I haven't mentioned that before possibly, no, but that was the story and that was this attack that started because I was not prepared to meet him on the site.
PN2743
So just so I've got this right now, your argument now is that - - -?---It's not an argument, it's a fact.
PN2744
The argument was about you not treating him with enough respect and that he was like the mounties?---That's what he was saying, yes.
PN2745
You are just making that up too aren't you, Mr Thompson?---No, I'm not making that up at all.
PN2746
And you haven't referred to any of that before have you?---I probably haven't, I haven't referred to that. There's a number of things I haven't.
PN2747
Because you have made it up haven't you?---No, I have not made that up at all.
PN2748
Then there was a discussion in relation to whether scaffolding could be put in or not, is that correct, or are you now saying that is not correct either?---Now, who is saying what to who?
PN2749
Between you and Mr Mitchell there was a discussion about the bricklayers' scaffolding and whether it was high enough or not?---No, that was only - that was to the police.
PN2750
So he never had that conversation with you?---I was standing there with Constable Bartlett and I spoke to Mr Taylor and said to him: we'll have to consent to continue on the using the scaffold, not standing on the wall. And then Mr Mitchell made up some story about how: it will blow out in their face, or there's other issues, and all these sorts of things were being commented and Constable Bartlett said: well, what is the problem, why can't he? He said: well, that's not the point, and left it at that. So nothing happened. It was just a stand-off situation while the concrete conveniently was going off in the truck and the pump.
PN2751
Just so that I can be clear on this too, the discussion became more and more heated didn't it between you two?---The discussion I - - -
PN2752
Sorry, just so we are clear on this, prior to the police being rung?---The heated discussion and the pushing and the assaulting occurred as Mr Mitchell arrived on the site and he - - -
PN2753
As he arrived on the site now is it?---That's right, that's right.
PN2754
So he just walked on to the site and pushed you did he?---He came on to the site, he started swearing as I think I've told you before and abusing me and swearing and I asked him to leave the site and he then at that stage pushed me backwards. I then continued to proceed. He tried to grab me as I left the site and I said: well, I've asked you a number of times to - he then followed me out on to the footpath. I told him I'd asked him a number of times to leave the site and if he wouldn't leave the site I'd call the police and that's when he made this comment about how I didn't have the balls to call the police or the guts to call the police and that was the situation. So he then just went back on to the site and when the police arrived that's when as I say I went over to see them and that's when Mr Taylor came up to me and said: this bloke's just parked his ute in front of the - I can't get the next truck on and that was some 40 minutes to 50 minutes after Mr Mitchell had arrived on the site.
PN2755
Let me put this scenario to you, Mr Thompson, just so you have got the right to respond to it?---Okay.
PN2756
Isn't this the situation? Before you rang the police there was a conversation between you and Mr Mitchell that became increasingly heated. You then rang the police and you said to Mr Mitchell: I'm having you up for assault. Do you remember any of that?---I most definitely told the police that, yes, that's right.
PN2757
Sorry, what I'm saying is you said to Mr Mitchell: I'm having you up for assault?---Well, I did. I told him: you're not going to be pushing me like that. That's correct, yes.
PN2758
Okay and he said: I didn't even touch you?---Yes, he denied it to the police when they arrived.
PN2759
No, no, no, sorry, this is to you before the police turned up he said: I didn't even touch you?---Well, he could easily have said that, yes, because he denied it later.
PN2760
Sorry, you are saying he could easily have said that or he did or he didn't?---He could have said that, yes, to me. There was a whole lot of loud shouting going on from him.
PN2761
Okay and then the police turn up and they've got issues about right of entry with Mr Mitchell have they?---Presumably. I didn't hear all of that but Sergeant - sorry, Constable Bartlett went on to the site eventually after - I think I've told you this but he couldn't get - he was told initially on several occasions to piss off by Mr Mitchell and then he got his assistant to book the vehicle that had been parked in front of the pump. Then he finally had Mr Mitchell decide to come out and talk to him and at this stage there was this telephone conversation.
PN2762
And by this stage presumably you thought you'd been assaulted by Mr Mitchell didn't you?---That's right, I had been.
PN2763
Yes, had been, very serious isn't it and you complained to the police presumably did you?---Well, I don't like it. No, I don't think it's something that people should have to accept, no.
PN2764
And you complained to the police did you?---Yes, I did.
PN2765
At that stage?---I told them that.
PN2766
During that conversation?---I told them as they were coming back from their vehicle that: he's pushed me, he's now got this vehicle parked in front of the concrete pump and I've asked him to leave and he refuses to leave.
PN2767
You told them that you had been assaulted?---I had been pushed, yes, that's right.
PN2768
And you told them presumably that you wanted him charged?---Well, I'd left that to the police. I mean that's their job. I'm not the - running the Crimes Act or something. It's up to the police to do what they decide about things.
PN2769
Yes, and you were here when the police gave evidence weren't you?---Yes, that's right.
PN2770
Did they give evidence that you had complained about Mr Mitchell assaulting you?---Well, had they?
PN2771
Sorry, I withdraw that question, I withdraw that question. And nothing happened did it? I withdraw the last question but in relation to your protestations nothing happened did it?---To my knowledge no because from what I understand Mr Mitchell denied it to the police.
PN2772
But that conversation never happened did it?---Yes, it did happen.
PN2773
And in fact there have been no police who you have called as witnesses who could have illuminated this Commission about that conversation have there?---No. Well, the policeman that I could have is Constable Bartlett is overseas at present and was unavailable to appear. He's the man who - - -
PN2774
There's no evidence at all apart from your evidence that this occurred at all is there?---Well, I guess that's correct, yes, that's true. I was the one that was assaulted.
PN2775
Sorry, could I just have one moment? Sorry, if I could just ask you one final question, Mr Mitchell?---Thompson.
PN2776
Sorry, Mr Thompson?---Please.
PN2777
It is my day today isn't it. You gave evidence at the last hearing that there has been no further industrial action since that time. Do you remember that?---Since which time?
PN2778
Sorry, since the AVO was taken out. Do you remember that?---No, I didn't say that actually but - - -
PN2779
Well, sorry, just illuminate me as to what you did say?---What I said was since we put our application in to the Commission here I have not seen Mr Mitchell visiting the site. However I have seen two similar vehicles with two people driving slowly past, I've witnessed them myself, that looked like similar vehicles to Mr Mitchell driving past in a slow fashion past the site. I have certainly seen that myself, yes, but no, since we've talked to the Commission Mr Mitchell hasn't to my knowledge been near the site.
PN2780
Okay and then since that evidence that you gave have there been any further problems that you are aware of?---Not that I'm aware of at the moment, no.
PN2781
Okay. Now, I just want to make sure that I've got this absolutely correct, Mr Thompson, and take as long as you want to answer this. On what day did the assault that you are complaining of today occur?---On what day?
PN2782
Sorry, on what date?---On what date, on the 18th of the 4th is the first time that the concrete pour or the first concrete pour was stopped, yes, that's right. There was also other efforts on the 11th of the 5th of course but there was a threat on that day.
PN2783
Sorry, just one final question. There was some discussion by Mr Rech about what is called a risk assessment process. Did you do that in relation to the site that we are talking about?---Did I do that? Yes, as far as I was concerned I assessed it myself, yes, and that's why we ran it the way we did because of what I looked at.
PN2784
Yes, and this is in relation to the height of the scaffolding from the top of the wall is it?---Yes.
PN2785
So you looked at the height of the people that had been laying the bricks did you?---Yes.
PN2786
And you looked at the height of the people who would be doing the concrete work did you?---Yes. Well, I stood on the scaffold myself and I was quite satisfied that if I was operating the line I'd be quite happy doing it and the bloke doing - the linesman on the - that was actually operating for Hoey Taylor, he's taller than I am so I would have felt there'd be no problems at all for him using it, even though he chose not to, told me not to.
PN2787
That was the extent of your risk assessment?---Well, that was part of the assessment, yes, but obviously it includes other things like having the scaffold there to start with and - - -
PN2788
No further questions, Commissioner.
PN2789
THE COMMISSIONER: I have a couple of questions just before and I assume you will want to re-examine.
PN2790
MR MURRAY: I certainly will, Commissioner. I was just mindful of the time. I think we will require at least some little time with this witness. If that was perhaps a - - -
PN2791
THE COMMISSIONER: Certainly, okay. Well, after my couple of questions we will adjourn for lunch and come back.
PN2792
Mr Thompson, do you have more than one site at any one time?---From time to time we do but we are, yes, we're in the situation we'd have at least a couple, yes.
PN2793
Right. What is the current position? Do you have other sites?---Currently we have a single site at the moment that is affected, yes.
PN2794
What is your role in the day-to-day? Are you a sort of a, would you call yourself a hands-on owner-manager or - - -?---Effectively within reason. We do have people that look after on the site but I'm there reasonably frequently, yes, yes, almost daily.
PN2795
Do you employ people directly? You do have direct employees?---We employ subcontractors generally is the situation, yes. We don't have people employed directly but we have people employed as subcontractors, yes.
PN2796
Well, who would supervise the site if you weren't there?---Well, there are a couple of people that do work for us who are subcontractors who will do that sort of supervision for us.
PN2797
Okay and your work is generally I think you said in your statement it is unit-type construction?---That's correct.
PN2798
General building?---General building, yes.
PN2799
Yes. In the same area, northern beaches, or all over Sydney?---Different areas of Sydney but yes, sort of inner west is an area that we've done quite a bit of work in.
PN2800
Have you had any contact with the union prior to this situation in May?---No, we haven't actually. We're quite amazed by it.
PN2801
So in your 30 years in the industry you have never had any dealings with the union?---I have had dealings but never a dealing that I would regard as - most of the sort of trouble that used to go on in the - I mean we can go back a lot of years here but when I was working, first working for my father there were the sort of problems that occurred where people - there was quite a lot of union trouble in those days, not necessarily directed at our sites but there was a lot more illegal behaviour went on then in the form of I know some employees that we employed directly in those days used to be offered money to go around and push strike breakers off scaffolds and things like that but that's quite a lot of years ago and since then we haven't had any problems. In the inner west we've had no troubles with the unions and I personally haven't had any problems with them at all. I don't see why I should.
PN2802
Okay. Thank you. I will adjourn until 2.15.
LUNCHEON ADJOURNMENT [1.12pm]
RESUMED [2.23pm]
PN2803
PN2804
MR MURRAY: Yes, Mr Thompson, just going back over some of the material that has just been put to you. Mr Latham was talking with you about the situation as existed on 18 April and he was talking in particular about the scaffolding. Do you recall that part of the cross-examination?---Yes, I do.
PN2805
Now, on 18 April what was the height of the block wall on the site?---The height of the block wall was between about 2.8 and 3 metres at its maximum height.
PN2806
2.8 to 3 metres maximum from the ground level on the inside?---From the excavated level inside, yes.
PN2807
Right and then you described scaffolding around the perimeter?---That's correct.
PN2808
And you have said that that was within 1.2 to 1.5 metres from the top of the block wall?---That's correct.
PN2809
And when you say 1.2 to 1.5 what particular part of the scaffolding were you talking about?---That's the platform height there.
PN2810
That is the platform height?---Yes.
PN2811
So that is where the workers are expected to stand on that height?---Correct.
PN2812
So then perhaps by arithmetic if that was the situation what is the maximum height of that platform from the ground level?---Well, obviously the maximum would be something like 1.5 the platform would be.
PN2813
From the ground level?---Yes.
PN2814
Thank you?---1.5, 1.8.
PN2815
Yes. Mr Latham then went to a photograph exhibit CFMEU6. Might I approach the witness, Commissioner?
PN2816
THE COMMISSIONER: Yes.
PN2817
MR MURRAY: There was some discussion about this. Could you indicate please for the Commission where the clips are? Would you indicate on that photograph where clips can be seen?---There are clips on those two there, clips there and clips along here. They hold the two vertical sessions of those panels.
PN2818
If they were to be removed how would that be done?---It would be a matter of sliding them up.
PN2819
Perhaps you could hold the photograph up?---If you slide that clip up you can slide it up and take it off that vertical section.
PN2820
About how high is that, that clip there?---Well, that's about the total height is getting towards probably about 1.6 to 1.8 so it's - yes, it would be something like that. It would be 1.8 up around there, that point.
PN2821
Thank you. Now, Mr Latham then went on to ask you about certain aspects of evidence given by Constable Boyce. Do you recall that?---Yes, I do.
PN2822
And it was put to you that there are inconsistencies between your evidence and that of Constable Boyce?---Yes, that's what he said.
PN2823
So perhaps if we could go through some of the specific material. It was put to you that Constable Boyce had said that she was in hearing of Mr Mitchell the whole time. Can you recall that being said?---Yes, that's what was said.
PN2824
And you said that that was not in fact the case?---Correct.
PN2825
Now, I'm going to show you a photograph CFMEU8. Can you tell me what is in that photograph please?---Yes, that a picture of myself and Constable Boyce standing beside an amenities shed.
PN2826
And from roughly how far away would that have been taken as far as you can establish?---That would be on the length of that it's probably 25 metres I suppose away.
PN2827
So if that was the case was Mr Mitchell within earshot when he took this photograph?---No.
PN2828
So as far as that goes whose evidence should be preferred?
PN2829
MR LATHAM: It is not up to him.
PN2830
MR MURRAY: Well, I can rephrase it. I will withdraw that question. Do you stand by what you have given in evidence then?---Yes, I do.
PN2831
And you stand by it despite what has been put to you about Constable Boyce's evidence?---That's correct.
PN2832
Thank you. Now, you were then asked a series of questions about backfilling. Do you recall that?---That's right.
PN2833
And certain photographs were presented to you?---Yes.
PN2834
I'm about to show you another photograph if I may. I don't have the exhibit number for this. I believe this is photograph 2 from the statement of Mr Mitchell.
PN2835
MR LATHAM: I will see if I can find it, Commissioner. Commissioner, I don't have an exhibit number, sorry. I've got a spare copy of it if you can't find it.
PN2836
MR MURRAY: Would you like me to hand up a spare copy of this photograph, Commissioner? It is that one.
PN2837
THE COMMISSIONER: I've seen it.
PN2838
MR MURRAY: I think it is to be found at photograph 2 of Mr Mitchell's statement, Commissioner.
PN2839
THE COMMISSIONER: Was it marked?
PN2840
MR MURRAY: Yes, it was given a - my apologies, Commissioner. I don't have the number. I think it was given the number MBA4 but I might be incorrect in that. The statement itself was tendered of course with this photograph included.
PN2841
THE COMMISSIONER: Yes, I have it thank you.
PN2842
MR MURRAY: Thank you, Commissioner. Might I approach the witness?
PN2843
THE COMMISSIONER: Yes.
PN2844
MR MURRAY: Now, is that photograph representative of the conditions with respect to backfilling that existed on 18 April?---Yes, that's right.
PN2845
And from that photograph what can you say about the backfilling?---Well, that it varies in height from the top of the wall to the top of backfill between, well maximum probably 1½ metres but it's in a number of cases less than that.
PN2846
Is that the nature of backfilling that existed on 18 April?---That's correct.
PN2847
THE COMMISSIONER: That was MBA6 actually, the exhibit.
PN2848
MR MURRAY: MBA6, thank you, Commissioner.
PN2849
Now, in terms of the backfilling that was a practice that you'd used in the past wasn't it?---That's correct.
PN2850
And what basis did you have for using backfilling?---Effectively it's what we'd agreed with the engineer. It's the way he wanted it done and we adopted that practice for the purposes of two things. One of them was to have our ag line and our granular material and sand backfill in place prior to the core filling at least to that height so that we didn't end up with any spillage of concrete going down on to the footing which at a later time would if it did would need to be hacked out, etcetera.
PN2851
Is that a practice that you'd had in the past, you'd used in the past?---Yes.
PN2852
Was it your consistent practice?---Yes, that's right.
PN2853
Now, there was also put to you evidence of an alleged conversation with Mr Hoey Taylor?---Yes.
PN2854
And you responded with a description of an apology?---That's right.
PN2855
And it was put to you that that was the first time that that had been raised. Is that the case?---No, I didn't think so. As far as I was concerned I'd said that before in my statement.
PN2856
When had you said that?---I understood I said that in my statement earlier. I was questioned about that and that's what I'd said.
PN2857
Are you referring to these proceedings?---Yes.
PN2858
And when in these proceedings?---Well, I think it was in my first cross-examination.
PN2859
So as far as that statement about apology would you outline to the Commission what exactly was said?---Yes. Effectively what happened was that as Mr Taylor was going - Mr Mitchell had left the site and as Mr Taylor was going back to his pump to continue the final washing out and dumping of the concrete out of his hopper he said to me: I'm sorry about having to - not proceeding with the pour. And I said to him: well, look it's not your fault, you don't have to apologise to me. And that was effectively what he was apologising about, that he was feeling guilty for the fact that the pour had stopped. And I said to him: it's not your fault, it was Mr Mitchell's conduct that meant that the pour didn't proceed, and he didn't need to apologise to me.
PN2860
Now, you were asked about an earlier conversation that you'd had with Mr Mitchell essentially at the outset of your contact with Mr Mitchell where there had been some discussion about WorkCover issues. Do you recall that minor questioning being asked of you?---I believe there was a question about that, yes.
PN2861
And what was your response to Mr Mitchell's claim in that regard?---Well, those claims were not made at that time. They didn't make WorkCover issue claims initially.
PN2862
Has Mr Mitchell ever shown you anything to support the argument that he is authorised by WorkCover?---No, he's never shown me anything. I don't even know his name is Mitchell other than that I assume he is from what's been said here but he's shown me no identification, no nothing at any time nor has he ever offered it.
PN2863
You have then had put to you questioning about a conversation you had at a later time, in fact at a time - pardon me, on 11 May where you have outlined or you have alleged that certain things were said about respect. Can you recall that?---Yes.
PN2864
It was put to you that you'd never raised that in evidence in these proceedings?---With regard to - can you put that to me again with regard to respect?
PN2865
It was put to you that you'd never raised this issue that Mr Mitchell had said something about respect in these proceedings?---Yes, on - you've lost me there I'm afraid on that.
PN2866
Have you in your evidence in these proceedings outlined every word that has been said to you by Mr Mitchell?---Not every word that I've said but generally the majority of what has been said and the essence of it, yes.
PN2867
So when it is put to you that you have recently invented these conversations what do you say about that?---I say it's not correct, definitely not correct.
PN2868
When it is put to you that this is inconsistent with evidence you have earlier given in these proceedings what do you say about that?---Well, I say that that's also not correct.
PN2869
Now, you were asked questions in relation to industrial action and specifically in the time since this matter has been brought before the Commission?---That's right.
PN2870
Do you recall that?---Yes.
PN2871
Now, as it stands at the present time what is your view about your exposure?---What to that industrial action?
PN2872
Yes?---Well, fairly vulnerable I would believe.
PN2873
Why do you say that?
PN2874
THE COMMISSIONER: I'm sorry, what was the answer?---Fairly vulnerable. Why?
PN2875
MR MURRAY: Yes?---Well, as far as Mr Mitchell is concerned it's been made very clear to the Manly Court by his solicitor that there's going to be a strenuous effort to overturn any AVO that currently exists with producing four witnesses and counsel and all sorts of things to make sure that doesn't proceed and even presumably once if that's not successful then he'll be back in town, back to the site but whether he is or not there are other members that are able to be sent along to presumably take over where he's left off.
PN2876
Are you aware of anything else that might suggest that industrial action might take place?---Well, only that I've - well, a couple of instances I think I've referred to. The fact that there have been a couple of visits past the site that I've witnessed which looked to me very much like they were union representatives that were in the similar vehicle to Mr Mitchell's and they drove slowly past the site in a fairly intimidatory fashion. I witnessed those. They're the two I've seen.
PN2877
Anything else that you are aware of?---Well, only the fact that prior to us coming here Mr Mitchell was stationed at the front of the site waiting for the next concrete pour after the one of the 27th, all ready to stop that again and my personal belief is that the only reason that didn't happen was because we put an application in to the Commission.
PN2878
And beyond that is there anything else in relation to concrete pours specifically?---Well, they're the major issues. Obviously the fact that on the 27th of what I was advised about these people that had turned up to stop that pour to assist Mr Mitchell in stopping it. That certainly concerned me, yes.
PN2879
Has there been anything said or done since these proceedings commenced to cause you not to feel that you were exposed?---No, nothing. Obviously I've had conversation with people who have as we know were going to give evidence and didn't but they've certainly expressed certain concerns to me about approaches that have been made.
PN2880
MR LATHAM: Look I object to this.
PN2881
THE COMMISSIONER: Yes.
PN2882
MR MURRAY: I will move on then. There's been some questions asked of you about Legend Concrete and their relationship to you?---Yes.
PN2883
What is the relationship between Legend Concrete and H.W. Thompson Proprietary Limited?---Well, only that in the case of this particular pour that they were involved with there they were actually working directly for the subcontractor.
PN2884
For the subcontractor?---For Shane at this site, yes, that's correct.
PN2885
So they weren't contracted to you?---No, they weren't.
PN2886
Or to H.W. Thompson?---No, that's right.
PN2887
Why was it that they ceased working for you on that day?---Because they had Mr Mitchell's employer's ute parked in front of their hopper. That's why they ceased.
PN2888
So it wasn't at your instance?---No, not at all. I was trying to get it to continue after that stoppage.
PN2889
Thank you, I've nothing further.
PN2890
THE COMMISSIONER: Thank you.
PN2891
MR MURRAY: Commissioner, might this be an appropriate time to discuss timetabling of the final - - -
PN2892
PN2893
THE COMMISSIONER: Well, it is proposed that both parties will submit their final written submissions in writing. I was thinking tentatively if it is practical for the MBA to finalise its submissions by close of business 3 August which is Friday week and for the CFMEU to submit theirs by the following Friday.
PN2894
MR LATHAM: That is convenient, Commissioner, for us.
PN2895
MR MURRAY: If I may, Commissioner, I would have preferred that it be finalised on a shorter timetable than that.
PN2896
MR LATHAM: We are happy for a shorter timetable too.
PN2897
MR MURRAY: Should we go off the record?
OFF THE RECORD
PN2898
THE COMMISSIONER: Well, these proceedings will stand adjourn sine die. The parties are to provide each other and the Commission their final written submissions which are anticipated to be completed by Friday, 3 August. Thank you.
ADJOURNED INDEFINITELY [2.43pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
RICK RECH, ON FORMER OATH PN1851
CROSS-EXAMINATION BY MR MURRAY PN1851
RE-EXAMINATION BY MR LATHAM PN2018
WITNESS WITHDREW PN2034
HOEY TAYLOR, ON FORMER OATH PN2036
CROSS-EXAMINATION BY MR MURRAY PN2036
EXHIBIT #MBA9 PHOTOGRAPH OF BOOM ON TRUCK PN2063
RE-EXAMINATION BY MR LATHAM PN2206
WITNESS WITHDREW PN2216
CHARLES THOMPSON, RECALLED AND RESWORN PN2223
EXAMINATION-IN-CHIEF BY MR MURRAY PN2223
EXHIBIT #MBA10 ENGINEER'S DRAWING OF DEE WHY PROJECT PN2269
CROSS-EXAMINATION BY MR LATHAM PN2408
RE-EXAMINATION BY MR MURRAY PN2804
WITNESS WITHDREW PN2893
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