C2001/2490, Transcript of Proceedings [2001] AIRCTrans 2216 (4 September 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LESSES

C2001/2490

BUILT ENVIRONS PTY LTD

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION AND OTHERS

Notification pursuant to section 99
of the Act of a dispute re demand for
complete vacuum cleaning of the Crime
Support Building due to the alleged
presence of asbestos dust

ADELAIDE

2.42 PM, THURSDAY, 16 AUGUST 2001

Continued from 15.8.01

PN2283

THE COMMISSIONER: So Mr Smith, are we ready to get away?

PN2284

MR SMITH: We certainly are, Commissioner. We would like to call Mr Barry Hill.

PN2285

THE COMMISSIONER: Good, thank you.

<BARRY DOUGLAS HILL, SWORN [2.42pm]

PN2286

THE COMMISSION: Please state your full name?---Barry Douglas Hill.

PN2287

Your address?---44 Glenburnie Street, Seaton.

PN2288

Your occupation?---Electrician.

<EXAMINATION-IN-CHIEF BY MR DEAKIN

PN2289

MR DEAKIN: Barry, you worked on the SAPOL site did you not?---Yes.

PN2290

Which company did you work for?---Nilsen's.

PN2291

Nilsen's. When you first went on site did you do an induction course?---Yes.

PN2292

At the induction course were you informed that asbestos had been removed from the Crime Support Building and the Forensic Building?---No.

PN2293

No suggestion at all through the meeting of any asbestos?---No suggestion about anything.

PN2294

Okay, so was there also no mention that there would be - - -

PN2295

MR CAIRNEY: Sir, can I just ask my friend to not lead the witness.

PN2296

MR DEAKIN: Okay. Were you told of the presence of PCBs which is a carcinogenic substance and kaowool on site?---No.

PN2297

During the induction course did everybody get a handbook, was there a handbook presented?---I can't remember.

PN2298

All right. When on the site, when you first went on the site because it is common knowledge now that asbestos was present, did you see any signs of warning of asbestos or any form of identification of an area sealed off for asbestos reasons?---The only thing I saw was one night early the lift was all taped over with plastic and such like and I just said, "what's this for" and they said, "because when youse all go home we're going to start moving asbestos."

**** BARRY DOUGLAS HILL XN MR DEAKIN

PN2299

When was that prior to 2 July?---That was very early in the piece, I couldn't tell you exactly when.

PN2300

But prior to - - -?---2 July, yes.

PN2301

Did you - when did you become aware of the presence of asbestos, did you come into any contact with it?---Well, I was one of the first ones on the floors and it was either the first or the fourth floor, there was a couple of bags laying just outside the lift and I was just doing my job moving the ladder, and pushing these bags to one side as I needed to put the ladder wherever I needed to put it, and somebody said, "hey, you shouldn't be mucking around with them, that's asbestos, that's asbestos in there."

PN2302

Was those bags marked with asbestos?---No, they were just black, dark green, plastic with tape on it, no marking, no nothing. I just thought it was something to do with the other trades.

PN2303

Yes.

PN2304

MR CAIRNEY: Excuse me, sir, can we just identify which building we are talking about. I am not sure what building we are talking about here.

PN2305

THE WITNESS: Forensic science.

PN2306

MR CAIRNEY: Thank you.

PN2307

MR DEAKIN: So we had two plastic bags, black plastic bags left outside the lift not marked, but you believed, you was informed, well, you was informed that asbestos was in them?---I was informed by one of the other workers: hey, you had better be careful with that there's asbestos in there. I didn't know. I was just pushing them around on the concrete and so I had no idea, up until that was said to me.

**** BARRY DOUGLAS HILL XN MR DEAKIN

PN2308

There was no form of hazard identification for that material in that bag, in those bags?---No, there was nothing to tell me anything.

PN2309

Okay. What was your response when you were informed that there was asbestos in the black bags?---I just went to another area down the other end of that floor, right away from it because I was scraping it around on the floor. I didn't want to be anywhere near it.

PN2310

So basically, how was - did you report to anyone that you had come in contact with the asbestos in the black bags and that it hadn't been sealed off and in the correct area?---I didn't know anything about it. I didn't know that there was supposed to be anything different. All I was told was that it was going to be moved that night and the next day it wasn't there so - and because it was I just went down the other end of the building.

PN2311

THE COMMISSIONER: Mr Deakin, what we have heard is that the witness came in contact with bags. He has not said that he came in contact with asbestos.

PN2312

MR DEAKIN: That is right, sir, but what we have put in front of you before, sir, is that all asbestos in bags has got to be identified and asbestos bags do have hazardous warnings.

PN2313

THE COMMISSIONER: Well, still the point is that has not been made, is what was in the bags. What we have is an assertion by an employee advising or warning the witness to be careful because there was asbestos in the bag but there is no evidence that there was asbestos in the bag. Now, for all intents and purposes the witness believed the comments and acted accordingly. I mean, I accept that.

PN2314

MR DEAKIN: Okay. You say you were working in the forensic building?---Yes.

**** BARRY DOUGLAS HILL XN MR DEAKIN

PN2315

What type of work was going on when you were working in forensic building?---A lot of trades just doing their job. I for one was knocking holes through the brick work. Just making preparation for cable runs. So just - and all the rest of the trades were doing that, whatever it was, air-conditioning, whatever, they need to do they were just doing it, drilling holes, holes in the - getting board, old things being pulled out.

PN2316

When was you made aware of the kaowool presence in that building?---Not until after July the 2nd.

PN2317

So you were working in the building. Was they pulling out pipes that had kaowool on them?---Yes. They - some of the lads had it all falling down around them and I just got out of the way because it does not matter what it is I don't particularly want to be in the dust but I seen that happening, yes.

PN2318

What kaowool falling down around?---Yes, but I didn't know and I presume the other didn't know that it was a problem. It was only after July the 2nd that we found out that it was not good for us.

PN2319

So are you saying there was a lot of dust in the air?---Yes.

PN2320

To get dust in the air there would have been a lot of air movement?---Well, there had to be because you have got to work.

PN2321

And kaowool was falling down around some of the workers?---Yes.

PN2322

There was no - - -

PN2323

MR CAIRNEY: Commission, can I just ask again, my friend has done it again, he is leading the witness in his evidence, could he please not do that.

**** BARRY DOUGLAS HILL XN MR DEAKIN

PN2324

MR DEAKIN: I am just confirming what he has just said.

PN2325

MR CAIRNEY: Well, no, you didn't. You went a bit further than that. He actually led the witness by saying: so what you saw was this, this and this, that is leading the witness.

PN2326

THE COMMISSIONER: You need to simply put a question mark at the end of the comment that you are asking and phrase it in a question. We can have a little bit of flexibility but we need to be careful, this is examination-in-chief, as we call it not re-examination.

PN2327

MR DEAKIN: So when did the site occupational health and safety representatives from the Built Environs come up and say to you that is a dangerous - - -

PN2328

MR CAIRNEY: Well, hang on, he is doing it again. He is putting that something has already happened.

PN2329

MR DEAKIN: Okay. I apologies. Was there any attempt by Built Environs to come and say that the areas, that material is hazardous.

PN2330

MR CAIRNEY: Well, what material are you talking about, sir?

PN2331

MR DEAKIN: Kaowool.

PN2332

MR CAIRNEY: Thank you.

PN2333

MR DEAKIN: Was a hazardous substance?---No one said anything to us about anything. I personally heard nothing mentioned about - and you could put your name on asbestos, kaowool, chemicals, biological whatever. Nothing was said to me about anything. I was one of the first ones on site.

**** BARRY DOUGLAS HILL XN MR DEAKIN

PN2334

It has been suggested that - I will rephrase that. Do you consider that the occupational health and safety representatives acted in a responsible manner?

PN2335

MR CAIRNEY: Well, sir, we are asking for an opinion here.

PN2336

THE COMMISSIONER: He can give an opinion, let him give an opinion, come on.

PN2337

MR DEAKIN: He can give us an opinion.

PN2338

MR CAIRNEY: Well, he is not an expert.

PN2339

THE COMMISSIONER: Focus on your question.

PN2340

THE WITNESS: The question is do you think the safety committee - - -

PN2341

MR CAIRNEY: Can he ask the question again please.

PN2342

MR DEAKIN: Do you think in your opinion that the Occupational Health and Safety and Welfare Committee people who were representing the workers, acted in a responsible manner?---Definitely. The simple fact is I've already had one serious scare with asbestos, I've actually got particles in my lungs and I'm not going through that a second time. So if there's a doubt and something is obviously not right with the building I for one won't work there, that's why I don't work there now.

**** BARRY DOUGLAS HILL XN MR DEAKIN

PN2343

Have you resigned from the company?---No, I haven't resigned from the company but I've told them that I won't work on that site at all because I end up with dizzy spells and feeling sick off of that forensic science building. I went to the doctor about 12 weeks ago, 13 weeks ago and had hearing checked, balance checked, blood tests to see what was going on way back then and there was nothing they could find. But I know that when I'm in that building I just get dizzy, I feel crook, so when I go home for the weekend by the time towards the end of the weekend I'm coming good again so I just turned around and said to Nilsen's its not doing me any good, I'm out the door as soon as this safety issue is settled. If I may add, and because it has dragged on I said to them when we have finished here, for the last time, I'm not prepared to keep on hanging on the job until this is finished, I will just stand aside. I'm still on the books but I'm just not working on the site.

PN2344

I would like to leave it there for the time being sir and come back later if that is okay.

PN2345

THE COMMISSIONER: What do you mean by that? Are you going to - he is your witness.

PN2346

MR DEAKIN: Well, I may need to cross-examine - not cross-examine - - -

PN2347

THE COMMISSIONER: You won't be able to. This is your examination-in-chief and you should get all your questions through the witness because once unless the other members from the unions want to ask questions, the witness will be cross-examined and then it puts you in a different light.

PN2348

MR DEAKIN: Okay, I will leave it there sir.

<EXAMINATION-IN-CHIEF BY MR SMITH [2.54pm]

PN2349

MR SMITH: Barry, you just stated previously you had a fair exposure to asbestos on a previous occasion?---Yes.

**** BARRY DOUGLAS HILL XN MR SMITH

PN2350

So you are well aware of the methods of ensuring that people aren't exposed to it after being exposed to it at that level?---I haven't got a clue.

PN2351

During the report backs of the meetings from the safety committee to the men, in your opinion were there extreme concerns by the work-force in relation to the safety on that site?---Yes.

PN2352

Do you feel that if all those safety problems were addressed early in the piece or more diligently - - -

PN2353

MR CAIRNEY: Can we define what the safety problems are being referred to?

PN2354

MR SMITH: Well, I think Rick, after standing here for 4 days if we don't all understand what the safety problems are we should be in another job.

PN2355

MR CAIRNEY: Well, I think the witness needs to know what you are referring to though.

PN2356

MR SMITH: Okay. Do you think if all the kaowool, asbestos, toxic substances, electrical problems, live wires, and all the other issues that were safety issues on that job were fixed up in a couple of days instead of being drawn out over 4 or 5 that the men would have returned to work?---Yes. The - - -

PN2357

THE COMMISSIONER: Are we referring to a period immediately on 2 July onwards?

**** BARRY DOUGLAS HILL XN MR SMITH

PN2358

MR SMITH: From the Monday to when the men returned to work, what I'm saying, what I'm putting to Barry is if it was cleaned up and fixed up quicker, better and more diligently that the blokes would have gone back to work?---On Crime Support it took PT 6½ hours to clean two floors, the two worst floors. 6½ hours the lads told me they took to do that. They could have done the other three floors in say another day. We could have been back there by Wednesday morning, simple as that.

PN2359

MR CAIRNEY: Sir, I would just make the point again, this evidence wasn't put to PT Demolition to my knowledge. So I have my objection noted on that as well.

PN2360

MR SMITH: That is okay I am only asking for his opinion, Rex. What reasons were you given Barry for the closure of the forensic science building and then its reopening some 20 days later?---Other than the fact that I was told by somebody from Environs, well, actually I didn't pose the question, somebody else did. I just heard the answer that too many problems, we will leave that one to one side at the moment to concentrate on the crime support. That is all I heard.

PN2361

Okay. Do you believe that there are still existing problems on the job i relation to the same types of things that were found between the 2nd and the return to work?---Yes, that's why I'm not there. The simple fact is I get crook on that building, I get sick, I get dizzy and that's why I don't go there. I have spoken to a couple of lads who were in the shafts, and they was telling me this morning that the levels on the western shaft were still too high to work in for mineral fibres.

PN2362

Previously to 2 June, were here ongoing asbestos removal during the day on that site?---I never seen anything.

PN2363

Right?---I never seen anything about anything.

**** BARRY DOUGLAS HILL XN MR SMITH

PN2364

Right. Thanks Barry.

PN2365

THE COMMISSIONER: Do you wish to ask any questions, Mr Feehan?

PN2366

MR FEEHAN: May I confer with my colleagues?

<EXAMINATION-IN-CHIEF BY MR FEEHAN [2.57pm]

PN2367

MR FEEHAN: Barry, it has been put to the Commission - what has been put during this case is that the principal contract of Built Environs in their view, the issue on the 2nd, the finding of the asbestos rope in the plumbing risers that started the whole issues of a project there, that the site was okay for a return to work on Tuesday, given the clean-up they did initially on the 2nd when workers left site, that the site was okay for people to return to Tuesday morning the 3rd. As a member of the Safety Committee do you believe that that was the case?---No, the whole issue to start with which I put to a Environs director on the Wednesday morning is, "Why wasn't it cleaned properly when it was just a shell?" Because I was there when it was a shell.

PN2368

Why wasn't it cleaned out properly then? Then the issue that came up on the Monday wouldn't have happened because the boys wouldn't have been worried that the dust that they were rolling around in had asbestos or mineral fibres in. And that's all they asked for is, "Clean up the dust," so that they work without a fear of picking up something. Environs went to the effort of doing the ground on the first floor, it took them 6½ hours to do the two worst floors. The other three floors were much easier but they procrastinated until the following Monday before something was done. Now, that could have been done on the Tuesday, we could have been back at work on the Wednesday. And we were prepared to go back on the works as long as it was cleaned up.

PN2369

You were, as a member of the safety committee, present at the site safety committee meeting on Tuesday, 3 July?---No, I didn't come into the safety committee until they moved over to Forensic Science because the lad who was looking after the safety committee, for Nilsen's, wasn't allowed to go onto Forensic Science so that's when I came in on that.

**** BARRY DOUGLAS HILL XN MR FEEHAN

PN2370

So you say you weren't part of the site safety committee meeting on Tuesday, 3 July?---No, no.

PN2371

Were you ever made aware, both prior to 2 July and after 2 July, or up to 2 and 3 July, of any policy being in place on the project for dealing with any of the kaowool, PCB, asbestos issues and related matters?---Nothing was mentioned to me or to any of lads in my hearing until 2 July. Then all of a sudden this comes out of the woodwork, but no-one told us nothing.

PN2372

How long have you been in the construction industry?---30-odd years.

PN2373

You have been involved in - - -?---34 years.

PN2374

During that time you have been involved with industrial disputes?---No, a long time ago.

PN2375

Have you been involved in site issues related to safety, that people would construe as safety disputes?---No.

PN2376

No further questions, your Honour.

PN2377

THE COMMISSIONER: Barry, what you need to do is face the Court Reporter so you are speaking into the mike.

<CROSS-EXAMINATION BY MR CAIRNEY [3.01pm]

PN2378

MR CAIRNEY: Mr Hill, I heard your evidence about having already suffered from asbestos, so I put it to you clearly, this is an emotive issue for you, isn't it?---What issue?

**** BARRY DOUGLAS HILL XXN MR CAIRNEY

PN2379

Emotive, it brings up emotions in you, because you are already suffering the effects of asbestos?---No.

PN2380

So it is not emotional at all?---No.

PN2381

No emotion whatsoever?---No.

PN2382

Even though, from your point of view, you won't work in the building, you say, because you say, "It is not safe," and you say there's no emotion in that?---No, that's practical, I'm not working in something that I deem is not good for my health. If I start getting signs that I'm feeling crook and I go and get it checked out and I realise where it's coming from, it's my responsibility for my safety and for my family it is ..... to be there. There's no point in getting emotional about it, it's just a practical decision.

PN2383

Mr Hill, is there any medical evidence that says that the building is the cause of your problems?---There's medical evidence - - -

PN2384

No, no, the question is yes or no? Is there any medical evidence?---No.

PN2385

Thank you. Mr Hill, you indicated in your evidence that you saw some workers pulling down kaowool, and you are talking about dust?---Yes.

PN2386

How did you know it kaowool?---Because it was white.

PN2387

And that is the only indication?---Well, it's only - - -

PN2388

Sorry, the question is, and that was the only indication, yes or no?---No, because it's the only thing that looks like kaowool there.

**** BARRY DOUGLAS HILL XXN MR CAIRNEY

PN2389

But that was the only indication?---That it was white - - -

PN2390

It was white?--- - - - and it was - the actual texture of it.

PN2391

Did you report that incident?---No.

PN2392

Why not? You are saying that it was a safety hazard, it was kaowool, but you didn't report it, why not?---No, the dust was a safety hazard. At the time I didn't know anything about kaowool, the dust was - - -

PN2393

Did you report the dust as a hazard?---No, I went up the other end of the building away from the dust.

PN2394

Well, why didn't you report it?---Well, because it had concerned the two blokes that were doing it.

PN2395

But don't you have - sorry, continue on?---They were the ones who were all covered with it so they went and sorted it out. I just have the flexibility to do wherever I need to on the room so I just went to the right, to the very end of the building, opened up the windows, so I didn't have the dust.

PN2396

Mr Hill, you have got a responsibility surely to yourself and to other workers to make sure that the environment is safe, isn't that true?---Yes, that's right.

PN2397

Mr Hill, you said in an answer to one of the questions that, I think your words were: early in the piece you knew that asbestos was being removed from the building. You talked about tape over, I think, the lifts?---Yes.

PN2398

So you knew well prior to the 2nd of the 7th that there was asbestos being removed?---Yes, but not on the floors - - -

**** BARRY DOUGLAS HILL XXN MR CAIRNEY

PN2399

You have answered the question, thank you. Now, all these other issues that Mr Smith referred to, why had they not been raised before 2 July if they were issues?---They were.

PN2400

No, my question is why had they not been raised? You are saying: they were raised?---One of the lads has written in his diary that he actually brought up about the kaowool and asbestos at a safety meeting and it wasn't allowed to be included.

PN2401

It wasn't allowed to be included?---Yes.

PN2402

And who was this lad?---Dave Seligmann.

PN2403

And what did the safety committee do about that?---Well, I wasn't on the safety committee at the time but Dave will be telling you that it was pushed to one side and wasn't mentioned in the safety committee minutes.

PN2404

Now, Mr Hill, you talked about - - -

PN2405

THE COMMISSIONER: No, just before you do, do you know when that happened, when he made a reference to the safety committee?---It's around about March I think.

PN2406

In March.

PN2407

MR CAIRNEY: Mr Hill, was it the unions, or the union organisers that told you to come off the job on 2 July, was it?---No.

PN2408

The unions called a meeting of all the workers in the basement on that day, didn't they?---Don't know.

**** BARRY DOUGLAS HILL XXN MR CAIRNEY

PN2409

Well, did you attend the meeting in the basement on 2 July where the unions addressed you?---Yes.

PN2410

You did?---But I was called there by Nilsen's.

PN2411

Now, do the unions tell you of the procedures that Built Environs were using to address the issue of asbestos that was found in the Crime Support Building on the 2nd?---Can't remember.

PN2412

So you can't remember, okay. Did the unions show you and the other workers the test results of the air monitoring that was being done?---When?

PN2413

From 2 July, before of that week? Did you see any reports from Crichton's or any other air monitoring experts?---Can't remember.

PN2414

Did you ask what the company was doing to address the issue of asbestos that was found on the 2nd?---Not to start with, no.

PN2415

Did the unions tell you that the company in that week, starting 2 July, had offered to speak to the workers about the problem?---Can't remember that.

PN2416

Okay. Did the unions tell you that Peter Owens, from PT Demolition, offered to speak to the workers about the issue of asbestos?---We had a group speak to us.

PN2417

No, the question was, Mr Hill, do you recall the unions saying to your other workers in your presence that Mr Peter Owens, from PT Demolition, had offered to speak to the workers about the problem?---Can't remember, don't know Peter Owens until I saw him here.

**** BARRY DOUGLAS HILL XXN MR CAIRNEY

PN2418

But your answer to the questions, you can't remember?---Right.

PN2419

On each day from 3 July, the 4th, the 5th, the 6th, did the unions tell you that the advice that they were getting from their experts was that the site was safe, particularly the Crime Support Building, that it was safe to work in?---It wasn't safe.

PN2420

No. Sorry, Mr Hill, I had asked you to answer the question and the question was, did the unions tell you that the advice the company was getting, from the experts that they were relying on, was that the site, in particular the Crime Support Building, was safe to work in?---Can't remember.

PN2421

Okay. Did the unions tell you that all the measures that the company were undertaking to deal with the issue of asbestos and the other safety issues, that all those measures they are undertaking were within the legal requirements?---Can't remember that.

PN2422

Did the unions tell you that the additional clean ups that were being done were over and above what was actually required by the law?---Can't remember.

PN2423

Did the unions tell you on Tuesday 3 July that payment for Tuesday would be considered - so payment to the workers would be considered - if the workers went back to work and that the Safety Committee operated in its normal fashion - that fashion being the way it operated prior to 2 July?---Well, if I could be blunt there, I wouldn't want it operating before 2 July.

PN2424

No, no, Mr Hill, please, I have asked you time and time again: please answer the question, otherwise, I will have to ask the Commission to direct you to do so. Now, my question to you was: did the unions tell you on Tuesday 3 July that: payment to the workers would be considered if the workers went back to work on Tuesday 3 July and that the Safety Committee operated as it had prior to 2 July?---I can't remember.

**** BARRY DOUGLAS HILL XXN MR CAIRNEY

PN2425

You can't remember that either. Did your employer speak to you about what was going on during the course of that week?---Yes.

PN2426

Did not your employer tell you that they were being told by Built Environs that the experts that Built Environs were using were saying that the site was safe to work on from 3 July?---No.

PN2427

They didn't?---No.

PN2428

That is your evidence?---Yes.

PN2429

So you can remember that but you can't remember all the other things that I have asked you, is that right?---Because - - -

PN2430

No, just a "yes" or "no", Mr Hill?---No. Yes, well, what's the question again?

PN2431

The question was: you can remember that, but you can't remember all the other questions I put to you about whether or not those things had been put to you prior?---Because - - -

PN2432

No, the question is simple. The question is this: you can remember what your employer said to you, but you can't remember all the other questions we have just gone through which you said you can't remember?---Yes.

PN2433

Thank you - - - ?---Right, yes, I can remember - - -

PN2434

Thank you. Now, up to 2 July the Safety Committee was about 8 people?---No idea.

**** BARRY DOUGLAS HILL XXN MR CAIRNEY

PN2435

No idea. How did you become involved in the Safety Committee, Mr Hill?---Because I was one of the main Nilsens blokes working on Forensic. The lad that was on the Safety Committee is only allowed to work on Crime Support, so needed somebody to go over there who was familiar with Forensic.

PN2436

So you concentrated on Forensic, did you?---Yes.

PN2437

So when you got involved in the Safety Committee, how many people do you recall being involved, 20, 25?---Fourteen.

PN2438

Fourteen. Were you involved in the safety walks, the on-site inspections that occurred during that week?---From - from the Friday, which was - would have been, what, the 4th or 5th.

PN2439

Those walks included a number of other people, union officials as well?---No.

PN2440

There was no one from the union at all on the Friday, is that what you are saying?---That's as I remember it. I'm not sure of - yes, I have been on a walk with the union officials.

PN2441

So you are not sure?---I'm not sure on that day, but I don't think it was.

PN2442

Prior to 2 July, did you know how the Safety Committee operated?---No.

PN2443

You didn't. Did the unions tell you that the workers would be paid for Monday? Monday, 2 July?---I can't remember that to be honest.

PN2444

Now, I put it to you, Mr Hill, that the reason worked stopped in the Forensic Science Building on Monday was because of the shared amenities with the Crime Support Building, is that not correct?---No idea.

**** BARRY DOUGLAS HILL XXN MR CAIRNEY

PN2445

On Friday 6 July, the Safety Committee recommended that workers go back to work, is that not correct?---Was I on that Committee on the - on the Friday?

PN2446

I don't know. The question I'm asking you is - - - ?---Well, it would be on record if it was - - -

PN2447

- - - on Friday 6 July the Safety Committee recommended that the workers go back to work?---No.

PN2448

They didn't?---No.

PN2449

Just indulge me one moment, sir. Sir, if we just have a look at exhibit - it is 6 July - I note that Mr Hill's name is not on that - that was exhibit A49.3. I have no further questions.

PN2450

THE COMMISSIONER: Right, Mr Smith.

PN2451

MR SMITH: Yes.

<RE-EXAMINATION BY MR SMITH [3.21pm]

PN2452

MR SMITH: Just a point, Barry, did you really become involved with the Safety Committee when the return happened in a capacity to formally help clear up what problems were on-site - - - ?---Yes - - -

PN2453

- - - from 10 July, which was the Tuesday, about when they returned after the RDO?---Yes.

PN2454

You have put a lot of work into that from 10 July onwards, that was your major involvement with the Safety Committee?---Yes, I didn't actually work for Nilsens from that day onwards. Any actual doing work for Nilsens, I was all to do with the safety issue.

**** BARRY DOUGLAS HILL RXN MR SMITH

PN2455

Right, so in essence really prior to 10 July, your actual involvement in the Safety Committee wasn't that great at all?---It was nothing.

PN2456

I just wanted to clarify that, Commissioner.

<RE-EXAMINATION BY MR DEAKIN [3.22pm]

PN2457

MR DEAKIN: You were asked by the representatives from Built Environs that concerning kaowool, they said - I'm just trying to remember the exact words - it was: how did you know it was kaowool - - -

PN2458

MR CAIRNEY: Is that a question - - -

PN2459

MR DEAKIN: And you responded by saying: I didn't - - - ?---Well, I didn't know to be honest until after 2 July.

PN2460

So what you are saying realistically is that nobody informed you that the kaowool was present?---No one informed me about anything officially at all.

PN2461

Nobody informed you what kaowool looked like?---No one - even to today has explained very much about kaowool to any of us.

PN2462

I'm just trying to clarify a point. You were asked a question about the kaowool being present in the building and why you didn't do anything about it. Was it fair to say that you were not aware that it was kaowool?

PN2463

MR CAIRNEY: Sir, the witness has already answered the question when I asked him. Now, we are getting something to try and - I don't know what we're trying to do, quite frankly.

**** BARRY DOUGLAS HILL RXN MR DEAKIN

PN2464

MR DEAKIN: I'm just trying to clarify the point of the person's inability at a point in time to identify what was present - the hazardous materials present. It's a fair question.

PN2465

THE COMMISSIONER: Answer the question?---The point of the dust with the kaowool, it wasn't just for the fact of - that it was to do with kaowool, it was the fact of, when somebody was knocking out brickwork or chasing the brickwork, if there was dust around then I got out of the area. It wasn't specifically what it was because up until 2 July I didn't have a clue that there was any problem. It was the mere fact that it was - it was dust and so I got right up the other end of the building, opened up the windows so I wasn't breathing whatever it was.

PN2466

Do you have any further questions in re-examination? You indicated that you had been on the building sites, or in the building industry for approximately 30 years, is that correct?---Yes.

PN2467

You indicated that you haven't been involved in industrial disputation, or matters concerning safety during that period. Do you recall any event that you were involved in, particularly regarding safety?---No.

PN2468

You made a reference that you believe that you had exposure to asbestos. When did that happen?---I had a CAT-scan. The doctor got me to have a CAT-scan about 2 years ago, 3 years ago. It come up positive having asbestos. For 3 weeks he gave me the impression that it was quite serious and I would be under a specialist for 3 weeks. It turned out - when I got to see the specialist he said: there was three particles there that were encased and weren't going to cause any problems, so not to have to worry about it.

PN2469

So what caused you to go to have a medical examination - a CAT-scan?---Well, I started the first - the first year I had 4 months of the flu. The next year I had 6 months of the flu - - -

**** BARRY DOUGLAS HILL RXN MR DEAKIN

PN2470

What year are we talking about, approximately?---Well, going back to about '83, or something - whatever - somewhere like that - '93 or something, somewhere about that. It was just before - I went for the CAT-scan because of this. I went 4 months, 6 months then 11 months and then - then the following year it wasn't stopping at all - that's when I went and had the CAT-scan.

PN2471

So what you have had - you have been diagnosed of having exposure to asbestos, but you don't recall having being exposed to asbestos?---No.

PN2472

So when we come to the present Crime Support Building and the Forensic Science Building, when did you commence work on that site?---Fairly early in February. I think very early in February.

PN2473

Do you recall when you commenced with Nilsens, did they put you through an induction programme?---Yes, but when I started on the Built - on the site, I was with a hire company for the first 6 or 7 weeks. After that - - -

PN2474

Well, when you started with the hire company did you go through an induction programme?---No.

PN2475

So after 6 weeks you started with who?---I started with Nilsens.

PN2476

Do you go through an induction programme with Nilsens?---About 2 weeks later.

PN2477

Do you recall what that induction programme was all about?---Well, I had a little book from them, I had - - -

PN2478

Can we find that notebook, that little hand book?---That's from Nilsens, not from Environs.

**** BARRY DOUGLAS HILL RXN MR DEAKIN

PN2479

Sorry, it wasn't this particular hand book?---No.

PN2480

Do you recall what - this is A48, you don't recall ever seeing a booklet like that?---No.

PN2481

Do you recall what was in the Nilsens handbook?---No, we had - went through it with the safety officer.

PN2482

The Nilsen safety officer or Built Environs safety officer?---Nilsens.

PN2483

Was it on site?---No, it was at their office.

PN2484

What did the induction entail?---It was mainly videos to do with lifting and hazards and cords and such like.

PN2485

So when you went on to the Built Environs site did you - were you introduced to anyone from Built Environs or responsible safety people from that site?---Yes. Alan, whatever his name is, the safety officer.

PN2486

This is Alan Ripberger?---Yes.

PN2487

What did Alan introduce you to?---Basically just to deal with the safe environment, cleanliness, toilet facilities where they were and then basically was filling out the application for the police to go on the site and get photographs taken.

PN2488

When you had to fill out a form do you know what that was? Was that the personal induction form they refer to?---No, I think it was to do with the police form that I had to fill out. The only one I remember filling out was the application - - -

**** BARRY DOUGLAS HILL RXN MR DEAKIN

PN2489

So that was like a police clearance application?---Yes, that's the one.

PN2490

You don't recall any personal induction form that says that everyone who works on the project is to be inducted into the safety requirements of the project using this form? You don't recall a form such as that? Can we let Mr Hill have exhibit A51. If you can go to page 13 which should be the last page of that document, you will see on the bottom, right-hand, it says: 13 of 13. Do you recall - is that a personal induction form that you are looking at?---I don't remember seeing this at all, to be honest. Nilsens had something - no, it's not even like Nilsens, sorry. I don't remember, I really don't.

PN2491

You don't remember seeing that form.

PN2492

MR CAIRNEY: Commissioner, I just think it might be a good opportunity for me to raise, this document wasn't challenged in the day, that is exhibit A55. If you look at A55. On the first page you will note Mr Hill's name appears that an induction was done and all I'd say quite frankly, sir, is there was a lot of things Mr Hill can't recall.

PN2493

THE COMMISSIONER: That is okay. Well, Mr Hill can have a look at exhibit A55 and you will note about mid-way down the page there's an identification of a person by the name of Mr Hill. Would that be you by any chance?---Yes. I had some sort of induction and that would have been the date that it would have been done, I presume. This is just a list of people who done them. It doesn't tell you what was done there.

PN2494

No, I understand that but your evidence at this stage is that you can't recall completing such a form or participating in that induction process conducted by Built Environs?---There was an induction. I don't remember anything that stands out. All I remember basically was this part on the police check.

PN2495

Do you recall the names of Nilsen personnel? I will just read out a number of names to you. If you recall them could you let me know who they are. John O'Shea?---John was the leading hand, yes.

**** BARRY DOUGLAS HILL RXN MR DEAKIN

PN2496

Leading hand?---He was the one in charge of the job for quite a while but he wasn't the one initially there first.

PN2497

David Seligmann?---Yes.

PN2498

What is his role?---Electrician.

PN2499

Did he look after the crime support building as a safety committee rep or forensic science building?---Crime support. Dave wasn't allowed on forensic science.

PN2500

So what I'm doing is just going through the notes of the safety committee meeting. Wayne Baker, who was Wayne Baker?---Wayne Baker is the electrician.

PN2501

What building was he on?---Both.

PN2502

On both?---Even Dave was initially on the forensic there for a little while until they decided he wasn't allowed to be on there.

PN2503

Sure. Dave Seligmann appears to have attended a number of meetings up until 6 July and then from 10 July and 11 July they are all recorded as attending those meetings?---Yes. Could I just clarify one little point?

PN2504

Sure?---A lot of questions have been asked what the union said. Could I just make one point, that at no time has the union told us to do anything and I'm very aware of that. So when he asked: did the union tell you this, or say this or that, I don't remember the union saying anything because the union left it all to the safety committee.

**** BARRY DOUGLAS HILL RXN MR DEAKIN

PN2505

Well, your answer is on record to those questions so I don't think you need to make any further comment about that?---Right.

PN2506

In the week following 2 July documents were put out to assist trades with identification of asbestos in Kaowool. Could we have a look at this exhibit - I'm not sure what the exhibit number is. Do you recall seeing this - when do you recall seeing this document? Exhibit A46, when do you recall seeing that document?---I don't think that was until after the 10th.

PN2507

After the 10th?---I never seen this - definitely didn't see this before the 6th - before the 2nd - of July.

PN2508

So can you have a read of the information that is contained on that exhibit?---Yes.

PN2509

In your work on the site from March through to the end of June do you recall coming across any of these service pipes or duct work, brick work, concrete elements as described in this document? Did you work in those areas?---Yes.

PN2510

So did you have any knowledge that you may be coming into contact with hazardous substances?---No.

PN2511

When people refer to hazardous substances what do they - what comes up in your mind? What is a hazardous substance to you?---Anything that causes detriment to my health. That is - in this instance it's the bio chemical as well as asbestos in Kaowool and anything else I don't know about.

PN2512

Another document that was distributed which was the procedure for dealing with suspected asbestos in fibre Kaowool, do you remember seeing this document?---Yes, I understand it.

**** BARRY DOUGLAS HILL RXN MR DEAKIN

PN2513

You understand it but when did you see the document?---Didn't see this before 2 July. I can tell you now no one else did either.

PN2514

So do you recall seeing that when? Do you recall when you saw that?---I think most of that come to light for me after the 10th when I started being involved with the safety committee.

PN2515

Was there any information contained in that document discussed prior to 2 July?---No.

PN2516

You don't recall having any instructions regarding your induction regarding hazardous substances, what to do and how to handle it?---No.

PN2517

Any procedures to follow?---No.

PN2518

You gave a response to Mr Cairney that when you saw several workers being covered with dust that you left that area and went to another area, why did you do that?---Because of the dust.

PN2519

Would you then deem that to be a hazardous substance?---Well, if it had been brick dust or concrete dust I'd have done the same thing. The mere fact that it was dust is why I moved.

PN2520

Because you already had a condition regarding your lungs that you understood. Was that the factor for it or were there other concerns?---That's why I'm very careful, so I just kept right out the way.

PN2521

That is all the questions I have, Mr Hill, you may stand down.

<THE WITNESS WITHDREW [3.41pm]

PN2522

THE COMMISSIONER: Mr Smith?

PN2523

MR SMITH: Yes, Commissioner, I call David Seligmann.

PN2524

THE COMMISSIONER: Mr Hill can stay in the room. If he has to go he can go.

<DAVID DANIEL SELIGMANN, SWORN [3.43pm]

PN2525

THE COMMISSION: Your address?---43 Oakland Avenue, Christies Beach.

PN2526

Your occupation?---Electrician.

<EXAMINATION-IN-CHIEF BY MR DEAKIN

PN2527

MR DEAKIN: David, who do you work for?---Nilson Contracting.

PN2528

When did you first arrive on the site, the building site?---I think it was 21 February.

PN2529

Were you an Occ Health and Safety elected official then?---A few weeks after that, I was elected early in March.

PN2530

Did you do an induction course?---Yes.

PN2531

What was the induction, what did it involve?---It was the basic site induction amenities hard-hat site, etcetera.

PN2532

Was there ever any mention of asbestos presence on the site?---No.

PN2533

Was there any mention that asbestos had been removed from the site?---No.

PN2534

Was there any mention that there was Kaowool present on the site?---No.

PN2535

Was there any mention that there were PCB's?---No.

PN2536

Do you know what PCB's means?---Yes, I do now.

PN2537

Right. In your opinion, would you believe that you should have been informed of these things on an induction course?---Yes.

PN2538

You have put a written statement here of the sequence of events?---Yes.

**** DAVID DANIEL SELIGMANN XN MR DEAKIN

PN2539

I would like to present this up.

PN2540

MR CAIRNEY: Well, I haven't seen this before, I don't think.

PN2541

MR DEAKIN: I would like to read from the - - -

PN2542

MR CAIRNEY: Well, before we do, I would like to have an opportunity to view it and get some instructions.

PN2543

THE COMMISSIONER: Let him have a copy.

PN2544

MR CAIRNEY: Sir, this appears to be a written statement. Now, we've had no order for witness statements. All the evidence has been verbal. Now, what I say about this is again, none of my witnesses were able to us any witness statements to assist them.

PN2545

THE COMMISSIONER: Yes, but that was up to you. You had the choice if you wanted to do that.

PN2546

MR CAIRNEY: Well, no, sir, with respect, if there's going to be witness statements, there should have been an order for witness statements, the same as I was trying to get an order for witnesses which I had some difficulty with and what I say is that if we were going to do witness statements, then that should have happened up front so everyone knew what was happening and everyone was treated the same. My witnesses did not have any assistance to guide them to give evidence and if the union's wanted to do this for one or other of their witnesses, then that should have been raised because again we are put at a disadvantage.

**** DAVID DANIEL SELIGMANN XN MR DEAKIN

PN2547

THE COMMISSIONER: Mr Cairney, the issue is this, that this is a private matter between the parties and we didn't have an opportunity to give directions to the parties as would ordinarily happen in a trial situation and to give an opportunity for the parties to prepare. Now, my suggestion is that if the document is not to be used as a witness statement, there's nothing to stop Mr Deakin following it through and asking questions from that document. Now, that would put you at a greater disadvantage. See, there's no reason why Mr Deakin can't ask questions out of a document that he effectively has resulted as a proofing of his witness.

PN2548

MR CAIRNEY: I have no problems in Mr Deakin asking the witness questions and him using a statement to guide him, I have no problem with that. I have a problem if he is going to provide it to the witness for the witness to use. Sir, the other aspect - and bear in mind it is three pages, I would also if I could seek 5 minutes. I mean, there's three pages here. Now, I'm not sure what all the evidence is but I want to also check that we don't have the same problems we've had with one or other two witnesses where a lot of evidence wasn't put to my witnesses. So I would like a 5 minute adjournment just to get some instructions.

PN2549

THE COMMISSIONER: Mr Deakin, what I suggest you do is this and I will grant the opportunity for Mr Cairney to have an opportunity to get instructions on what is likely to follow. My suggestion is that if the - as there is an objection to the witness having the document and it is basically to ensure that the witness answers questions without any premeditation from or prompting from yourself. My suggestion is that you can retain that document and make the opportunity to highlight questions that you wish to ask the witness and then simply proceed on the basis of asking those questions. In the meantime, what I will do is let Mr Cairney have 5 minutes and that will be until 3.50.

PN2550

MR CAIRNEY: All right. Well, sir, if that is how we proceed, perhaps - - -

PN2551

THE COMMISSIONER: My suggestion, that is the safest way to proceed otherwise, I mean, I really want to get the matter going because I don't want to delay the proceedings any further.

**** DAVID DANIEL SELIGMANN XN MR DEAKIN

PN2552

MR CAIRNEY: The company is of the same view, the sooner this is finished the better but I obviously, sir, have to look after the interest of my client and so perhaps - - -

PN2553

THE COMMISSIONER: Well, I can assure you the Commission is not going to engage in any activity that is not fair for both sides, all right. I can assure you of that.

PN2554

MR CAIRNEY: Thank you. So that perhaps on your suggestion, we proceed that way and if there is evidence I believe that has not been put to my witnesses, I guess I just have to make you aware of that, either during the course of the examination or after.

PN2555

THE COMMISSIONER: Mr Deakin, do you want a few minutes in order to get your thoughts together in order to proceed on that? I'm happy to give you that and give Mr Cairney a couple of minutes, to give him the same opportunity to look at the document as well. Are you happy to have that brief adjournment?

PN2556

MR DEAKIN: Sir, I just without it. I will just withdraw it and ask some questions. If the Commission will give me 5 minutes to collect our thoughts.

PN2557

THE COMMISSIONER: Yes, my suggestion is I will deal with that question after. I don't want you to feel prejudice by not being able to proceed on a line of course that you have determined. So I think it is in your interest to have discussion and then see where you want to go, all right. The same time, well, Mr Cairney has now given you that document back and so you are not worse off than you are now, so if you want to proceed without the document later, without tendering it, then that is fine, all right. So what we will do, we will let you go for about 5 minutes and then we will call you back at say 3.55, okay.

SHORT ADJOURNMENT [3.50pm]

**** DAVID DANIEL SELIGMANN XN MR DEAKIN

RESUMED [4.03pm]

PN2558

THE COMMISSIONER: What have you determined to do, Mr Deakin?

PN2559

MR DEAKIN: I will raise questions from the paper. On Monday, 2 July, what happened?---There was a mistake. Some asbestos was released while the fire pipe was being removed.

PN2560

You say that there was notification, you got notified by the employees, members?---I got notified by some of my work colleagues to find out what the problem was.

PN2561

What did you do?---I went down to see Tony Oxley because he was the chairman of the safety committee which I was representative of immediately.

PN2562

What took place then?---Told me that things were safe, the asbestos was wet and to carry on as normal, the situation is under control.

PN2563

Then what did you do?---I went back upstairs and notified the guys of our concerns, about 10 or so and I said, you know, it's under control. Tony knows about it, it's being looked after, you can go back to work.

PN2564

Well, was there a response?---They said that's not right. Some of the older guys believed there was danger and they weren't happy about the answers that - or the message that I brought them so they sent me back down to see Tony again.

PN2565

Then what happened?---Well, Tony walked off with another gentleman to sort something out so I approached Jason who was also still standing there but it must have been close to his lunchtime. I asked him if he could explain to me what was meant by wet which was what the other guys were saying.

**** DAVID DANIEL SELIGMANN XN MR DEAKIN

PN2566

Who is Jason?---He's a Built Environ's employee. I'm not sure of his actual title.

PN2567

So then what happened after that?---Well, I asked him if he could please find out if he doesn't know what is meant by wet asbestos because I've got guys - the guys are panicking about it and they want me to find out exactly what is meant by wet asbestos and if you could do so immediately and he said, "No", and he walked off, brushed past me and walked out of the site, I presume to get his lunch or morning tea.

PN2568

You asked him that question concerning asbestos and he brushed you, is that what you say?---Yes.

PN2569

What was the question again?---Can you please explain to me what is meant by wet asbestos and if you can't, can you find out immediately.

PN2570

He said, "No"?---He said, "No".

PN2571

And then what?---Then I got a bit angry, I couldn't get hold of Tony. He was layed up with a lot of people so I just went back upstairs, explained exactly what happened to me and basically said that in these situations, if you are in doubt, get out.

PN2572

So on the first time you visited them, the people in question, they said to you it was safe because it was wet?---Yes.

PN2573

Then you went back to them to qualify that statement?---Yes.

PN2574

To get some more in depth information on it and what it meant?---Yes.

**** DAVID DANIEL SELIGMANN XN MR DEAKIN

PN2575

You asked a question that, what does wet mean?---Yes.

PN2576

He said, when you asked him - - -?---I actually gave him examples. I said: is it because the pipe leaked - as the pipe was a water pipe, did it leak on asbestos or was someone - did someone hose the asbestos down? Is that how they wet it? He said he didn't know and then I asked him, could he find out immediately and he said, "No".

PN2577

What happened after that?---Well, there was a bit of commotion and I went back upstairs. A couple of the guys weren't happy with me. They called the union, they said basically you are not doing anything for us and it just snowballed from there.

PN2578

When you snowballed from there, what do you mean, snowballed from there?---Well, the union came down to site, a site meeting was organised.

PN2579

So the guys weren't happy simply because their questions, in your opinion, wasn't answered correctly?---Correct.

PN2580

That is when - - -

PN2581

MR CAIRNEY: Well, sir, sorry, but once again we are having leading the witness. Can you please go back to asking questions.

PN2582

MR DEAKIN: So you are saying that from that point on - - -

PN2583

MR CAIRNEY: No, again - - -

PN2584

THE COMMISSIONER: I think what the question is, what happened from that point on.

**** DAVID DANIEL SELIGMANN XN MR DEAKIN

PN2585

MR DEAKIN: Okay. What happened from that point on?---From that point on, I went and told the guys that I can't find out what wet asbestos is, I don't know myself. If you have got any doubt about your own safety, you should remove yourself from the area which you are worried about and we will get it assessed properly and that's what they did.

PN2586

What happened after that meeting, what happened at that meeting? Did you have any meetings with Occ Health and Safety committees or anything?---We had a site walk. We had a meeting with the boys and then we went on a site walk, on a safety walk.

PN2587

Was that with management?---With management, no, it wasn't with management. I think it was with the unions, with Tony and the safety committee.

PN2588

MR CAIRNEY: Can we just clarify, sir, what day they are talking about?

PN2589

MR DEAKIN: 2 July.

PN2590

MR CAIRNEY: Thank you.

PN2591

MR DEAKIN: Prior to 2 July, was there any discussions whatsoever, prior to the walk around, prior to the discovery of these materials, was there any discussion whatsoever of a procedure that must be carried out in the event of identifying or coming into contact with asbestos, whether fibres or PCVs?---No.

PN2592

None at all?---No.

PN2593

I think I will leave it at that, sir.

<CROSS-EXAMINATION BY MR SMITH

**** DAVID DANIEL SELIGMANN XXN MR SMITH

PN2594

MR SMITH: David, how long have you been on the safety committee then?---Approximately since the beginning of March, I can't remember the exact day or the exact first meeting. It wasn't immediately when I arrived at the site though.

PN2595

Were you made aware that there was asbestos removal being carried out on the job?---I was made aware that it was on night-shift.

PN2596

As a member of the safety committee, did you ever see any of the monitor readings from that process?---Not prior to the 2nd.

PN2597

So you wouldn't have seen any monitorings that occurred say, in March, April, no monitor readings at all, no explanation of, you know, what the readings meant or anything like that?---No.

PN2598

None at all?---No.

PN2599

On about 11 April I was called to a job in relation to some louvres that were being dismantled in the plant.

PN2600

MR CAIRNEY: Just - I don't want to get into to-ing and fro-ing with Dave, but just so - I've already spoken to Dave about this before the hearing. Obviously it is noted my objection to this as per the other day that this is totally new and, I mean, we object that it wasn't put to our witnesses earlier. I just want that recorded.

PN2601

THE COMMISSIONER: Continue.

PN2602

MR SMITH: Commissioner, if you require I was about to put this to the witness but the witness I had was the wrong witness.

**** DAVID DANIEL SELIGMANN XXN MR SMITH

PN2603

So what happened up there? We had electricians, plumbers, I think it was a couple of sprinkler fitters working up there, what happened up there on that day, Dave?---On that day on the 11th of the 4th one of my work colleagues came and got me and told me to come to the crime support building. I was working on the forensic science building at the time because I was their safety rep. He asked me if he could please be put on the asbestos registry but he feels he may have been exposed to some asbestos.

PN2604

He was working in the plant room?---He was working on the switchboard right next to the plant room.

PN2605

Now, in the plant room on the switchboard, how close would he have been to the louvres that were covered in asbestos?---I don't know.

PN2606

Did he understand that he had been exposed to asbestos?---No, he understands what being exposed to asbestos was but he was not informed that removal of asbestos was taking place.

PN2607

MR CAIRNEY: Sir, this is all hearsay clearly.

PN2608

MR SMITH: What happened after he had asked you to put him on a register?---I said that I can't see a problem with that, I'll bring it up at a safety meeting.

PN2609

So the next safety meeting you raised this issue?---Yes.

PN2610

Now, I'd say, looking at the safety minute - meeting, that could have been possibly 23 April?---23 April I was not present at that meeting, so it was the meeting after that.

**** DAVID DANIEL SELIGMANN XXN MR SMITH

PN2611

The meeting after that which would have been 7 May. So you raised the issue in relation to what happened at the plant. I draw your attention to document A57 and these are the minutes of the safety committee meeting. Can you find in those minutes of 7 May, David, where that is recorded for me, please? There should be minutes of the safety committee meets right through?---Right.

PN2612

I've got it as A57?---17 July.

PN2613

7 May I'm after, mate. It is a group safety minutes dating back from 18 June right back to April. I thought it was with A57.

PN2614

MR CAIRNEY: Sorry, I don't have them in A57, Dave.

PN2615

MR SMITH: I might have marked it wrong. Have you got a copy then Rick, or do you want this copy?

PN2616

MR CAIRNEY: No, I don't, Dave.

PN2617

MR SMITH: They come with a bundle of documents. I thought it was A57, I've probably got it wrong.

PN2618

THE COMMISSIONER: They were in the bundle of documents that Mr Oxley gave me at the safety committee on the last meeting that i attended.

PN2619

MR SMITH: You were absent - - - ?---The meeting of the 23rd was the meeting that Wayne Baker stood in for me. That's my - on 7 May where it's got Wayne Baker's name, that should have been my name, it was me attending that meeting.

**** DAVID DANIEL SELIGMANN XXN MR SMITH

PN2620

Right, so you were there on 7 May?---Yes, not Wayne, he was there on the 23rd.

PN2621

It is all right, these minutes are only draft anyway, so I have been informed.

PN2622

THE COMMISSIONER: It was prefaced when they were supplied to me they were draft minutes and had to be verified.

PN2623

MR SMITH: So on 7 May can you find where what you requested was put in those minutes - - - ?---No.

PN2624

- - - in relation to the exposure on the 11th of the 4th?---No.

PN2625

So there's no record, safety minutes, of the incident that you reported and asked to have tabled and put in the safety minutes?---No.

PN2626

Why do you think that is?---There's a lot of things that weren't minuted in those meetings.

PN2627

Right, but did you specifically ask for this to be minuted?---I didn't specifically ask for it to be minuted.

PN2628

You raised it?---I raised it.

PN2629

What was the response when you raised this issue?---The response was that the removal was perfectly safe, the asbestos was encapsulated, there we no problem, there was nothing released, no airborne fibres, we were perfectly safe, the guys would be perfectly safe and then it was explained how the register for the building works and what's recorded in their's, what's removed and basically what the red building register was about.

**** DAVID DANIEL SELIGMANN XXN MR SMITH

PN2630

Who explained that to you?---Tony.

PN2631

THE COMMISSIONER: That is Tony Oxley?---Yes.

PN2632

MR SMITH: Now, you saw what was happening up there in the plant room, didn't you? Did you actually see - - - ?---No.

PN2633

MR CAIRNEY: Well, sir, could Dave just not lead the witness. He has done it again.

PN2634

MR SMITH: I'm asking a question.

PN2635

MR CAIRNEY: No, you didn't. You said - you actually - - -

PN2636

THE COMMISSIONER: You made a statement. Ask it as a question.

PN2637

MR SMITH: Did you see what occurred up in the plant room?---No.

PN2638

Did the member that called you up there explain what happened up in the plant room?---Yes.

PN2639

What did he say?---He said they were removing some flooring around some water cooling tower, I think that's what they call it, and they removed some other asbestos which was near - I can't remember the way he described that, it was like some flutes or something like that.

PN2640

Louvres?---Louvres, yes.

**** DAVID DANIEL SELIGMANN XXN MR SMITH

PN2641

So he said to you they had removed several - asbestos in several places. What were his feelings about that?---He was pretty angry.

PN2642

That was done during the day?---Yes.

PN2643

Was the area flagged off at all?---Yes.

PN2644

Was it encapsulated in a bubble?---No.

PN2645

Were there signs up?---No.

PN2646

So you got this bloke registered on to an asbestos register?---He is now. I didn't get him registered then but I saw the black plastic that was up.

PN2647

Right. To the best of your knowledge, were the people who were actually handling asbestos inside the roped-off area, were they wearing protective clothing and masks and gloves and - - - ?---No, no.

PN2648

So they were handling this stuff or pulling it out in several places and it didn't appear that any body had any protective clothing or anything like that. Were there any other workers up there when you - - - ?---There was three guys.

PN2649

Right?---Three electricians.

PN2650

Did you see any work being done on these louvres or anything like that when you were up there?---No, I didn't, no.

PN2651

It was all just sitting there exposed, was it?---Well, I was working in the other building and got called across.

**** DAVID DANIEL SELIGMANN XXN MR SMITH

PN2652

Right?---At that stage there was black plastic up and the guys were sort of around me: look at that, look at this, look at that; we were here, this is what's going on, you know, you've got to go down and get these forms and you've got to do this and you've got to do that. I said, "Relax, I'll do it".

<RE-EXAMINATION BY MR DEAKIN [4.18pm]

PN2653

MR DEAKIN: You have just said that the guys called you up there to ask: look at this and look at that. Why was that?---They flagged the black - they put the black plastic up but it was sort of like - it wasn't properly sealed, it was like it was flapping in the wind a bit and there were some other penetrations up top which I suppose possibly air-borne fibres could get through into the areas they were working in right next to the plastic sheet.

PN2654

So are you saying the electrician was working in a - - - ?---Switchboard.

PN2655

- - - switchboard which was close to the plastic?---Yes.

PN2656

It was flapping in the wind and it wasn't sealed up properly, is that what you are saying?---Yes.

PN2657

You were just asked a question about the clothing that these people were wearing. What clothing were they wearing, do you know? Was it reported to you?---It was - I was told that they were wearing like jeans and flannels and one guy was wearing overalls.

PN2658

No masks, no gloves?---No, no.

PN2659

What type of work were they doing? You were talking about tiles, did you say tiles?---Some sort of flooring, removing floor tiles around the water tank.

**** DAVID DANIEL SELIGMANN RXN MR DEAKIN

PN2660

MR CAIRNEY: Just to clarify, I understand the witness wasn't there, so what he is answering is hearsay.

PN2661

THE COMMISSIONER: Yes, he is recounting what has been relayed to him by another worker. You need to keep it in that context. So if you start the question off: and what was the account given to you, the witness.

PN2662

MR DEAKIN: What was the account given to you in reference to the tiles being removed and how they were being removed? How was it explained to you?---They were bashing them up off the floor. That's what he said.

PN2663

Bashing them up. In other words it would be in his opinion or your opinion that they would be breaking the encapsulation on the tile?---Yes.

PN2664

Would you say this is a proper manner, in your opinion, that that is the way asbestos is supposed to be removed?---Yes.

PN2665

You think that is the proper way for asbestos to be removed?---No.

PN2666

MR SMITH: Dave, you were part of the safety committee right through this from the 2nd to the return to work on the 10th?---Yes.

PN2667

When the safety committee came to the report-backs meetings how do you feel the men were when you were given those report-backs to explain to them about what was going on?

PN2668

MR CAIRNEY: Again, sir, this is hearsay.

PN2669

MR SMITH: I'm asking his opinion.

**** DAVID DANIEL SELIGMANN RXN MR DEAKIN

PN2670

MR CAIRNEY: Well, again it is simply just hearsay.

PN2671

MR SMITH: What I'm asking is when you went back to report back to the members as the safety committee, what was the mood of the guys like when you were doing this report-back? Did they listen? Did they tell you to nick off? Did they accept what you were saying and did they back you?---Yes, they did, they backed us up.

PN2672

Right. So the return to work rested on the opinion of the safety committee and what they believed needed to be done to the job to make a safe return to work for all?---Yes.

PN2673

That was never contested by anybody?---No.

PN2674

Do you think you were under some pressure from your company?---Yes.

PN2675

It probably wouldn't be the best job you have had to do for a while?---No.

PN2676

Do you think that at all times the safety committee acted in the best interests of the blokes to get them back to work?---Yes.

PN2677

You have worked in Melbourne, haven't you?---Yes.

PN2678

Been involved in any industrial disputes?---Yes.

PN2679

Been involved in any safety disputes?---Yes.

**** DAVID DANIEL SELIGMANN RXN MR DEAKIN

PN2680

Do you think this issue related to safety or industrial?---Safety.

PN2681

Do you want to elaborate on that? Why do you think it was safety and not industrial?---Being a representative for the Nilsen electricians on that site, every single one of those blokes turned up to go to work to finish the job and move on. Their tools were in that area. Couldn't get their tools. None of them wanted to go home and - what can I say.

PN2682

So it would be a fair assessment, as a member of the safety committee which you are, that the blokes were always ready to go back to work, it was just when the job was right and safe for them to go back they were quite happy to go back?---Correct.

PN2683

There was never any issue by the unions of 48 and out the gate and all those other things?---No.

PN2684

It would be a fair assessment that the return to work rested heavily on the results of what the safety committee brought back to them?---Yes.

PN2685

That is what the men made their decision on?---Yes.

PN2686

There was no influence from the unions on what we think you should do. It was actually put to the men what the safety committee thinks?---Yes.

<RE-EXAMINATION BY MR FEEHAN [4.24pm]

PN2687

MR FEEHAN: David, you stated before that you started on that site late February, I think you said February 21 was your recollection?---Yes.

PN2688

It was some weeks after you started on site that you were elected as safety rep by your peers?---Yes.

**** DAVID DANIEL SELIGMANN RXN MR FEEHAN

PN2689

From your designated work group?---Yes.

PN2690

In the time from early March prior to July 2, as a member of the safety committee had you ever - how often were the safety committee holding their meetings?---Once ever 2 weeks.

PN2691

From March, when you were first selected as safety rep prior to the events of July 2, had you, as a constituent of that safety committee, ever conducted a site walk?---No.

PN2692

There was no site walks ever conducted, site inspections?---The first one was on Monday 2, when the accident happened.

PN2693

When the issued over the asbestos rope on the pipe first came to light. So prior to that there was never any site walks or involved identification of going around addressing issues on the job prior to the issue that was brought up on 11 April?---There were never any site safety walks.

PN2694

Were you present at the mass meeting held on Wednesday 4 July when two Department of Industrial Affairs inspector spoke at the meeting?---Yes.

PN2695

Those inspectors tried to allay the workers fears at that meeting? Did those inspector try to allay the worker's fears at those meetings?---What is "allay"?

PN2696

Try to explain - - -?---Quell?

PN2697

Quell?---Yes.

PN2698

Did those inspectors sit with the safety committee? Have discussions with the safety reps?---No.

**** DAVID DANIEL SELIGMANN RXN MR FEEHAN

PN2699

At any time did the Department of Industrial Affairs inspectors raise concerns about the manner in which the safety committee and its representatives were conducting the remedial - the clean up - putting in place practices to fix the problems on the job?---No, they didn't.

PN2700

I would just like to display an exhibit, A34, which is an airborne monitoring result. You returned to work, Dave, on 10 July along with the rest of the work-force?---Yes.

PN2701

You returned to work because as part of the safety committee and in conjunction with the other safety reps you felt that by that stage - - -

PN2702

MR CAIRNEY: Well, again we are not asking a question, we are making a statement.

PN2703

MR FEEHAN: Did you feel, from 10 July, that enough had been done for a safe return to work?---In the crime support building?

PN2704

In the crime support building?---Yes.

PN2705

Would you have a look at A34, it is a report back of the monitoring that was done on 14th of 7th, 4 days after the return to work. These results came through on 16th. Have you seen this before?---Yes.

PN2706

Have you been privy from July 2 to the time when you finished up on the project, with all the airborne monitoring results, swab results, safety committee minutes being presented to you as a safety committee rep?---Yes.

PN2707

If you look at these results, it seems the airborne - can you see these results - - -

**** DAVID DANIEL SELIGMANN RXN MR FEEHAN

PN2708

MR CAIRNEY: Sir, can I - A34 is one page.

PN2709

MR LEAN: If it please, Commissioner, we have got two lots here that were handed over to us and they are both the same.

PN2710

MR FEEHAN: With different fax dates on the bottom.

PN2711

MR LEAN: They were handed over as 8.34 to us because we had two or three copies given to us if you recollect and each one has got that stapled to it. We have marked them as A34 - different handwriting as well, different handwriting, different people.

PN2712

THE COMMISSIONER: My suggestion is we get the document photocopied and let the employer have a look at it.

PN2713

MR CAIRNEY: I don't have an explanation at this stage, sir, that is all I can say. But I am happy to take one copy of that back - - -

PN2714

THE COMMISSIONER: I think the fact that it has been produced, it has got that mark on it, and I think what we need to do is to get the completeness of the documentation and then we can take it from there. So what I suggest is we get some photocopies done of it.

PN2715

MR FEEHAN: That has got me worried about the other 57 exhibits, now. We will leave that matter aside and I will stop all questioning regarding exhibit A34 and move on.

**** DAVID DANIEL SELIGMANN RXN MR FEEHAN

PN2716

THE COMMISSIONER: That is okay, you can do that but I want to find out a bit more about it. I mean, you have raised some curiosity for me now and I am inclined to sort of follow it through. If you don't want to do it that is up to you. My record shows exhibit A34 was the central - the crime support building, plant room east. Now, that is where that exhibit came from. Now, that was what was tendered. Now, we can have a look at it - I mean, I will do my own verification, in any event.

PN2717

MR FEEHAN: I need some direction here from the Commission, Commissioner, because you have just confirmed that you had seen that prior?

PN2718

MR CAIRNEY: Well, sorry, sir, as I understand it, the witness only had the one page so let us get - - -

PN2719

MR FEEHAN: Commissioner, I would sooner sort it out because if we are going to ask one of our witnesses to look at an exhibit and we have got three different versions of the exhibit let us really find out what exhibit we are going to ask him to look at because it wasn't submitted by us, this was submitted by - we are quite happy for him to tell us what it is suppose to be.

PN2720

MR CAIRNEY: Sir, I guess there is a couple of ways to go. Mr Oxley has given instructions on what he says this document is, bearing in mind he was the one that was requesting the air monitoring be done. If it expedites this matter to be dealt with, I am happy to call him, put this document to him now and get him to give evidence on what it is without this witness being present and then recall the witness and get him to respond. It just might expedite dealing with the document, that is all.

PN2721

MR LEAN: Commissioner, could we just confer for 1 minute?

PN2722

THE COMMISSIONER: Sure.

**** DAVID DANIEL SELIGMANN RXN MR FEEHAN

PN2723

MR CAIRNEY: I have just spoken with my friends and given the time of day, what they are seeking is that we adjourn now and we try and clarify it before Tuesday for them, which we undertake to do, what the document is so they know where they are going.

PN2724

THE COMMISSIONER: Well, it is clear from the - at least page 2 - comparing it with page 1, that the time of one is 16th of the 7th, the other one 17 of the 7th - - -

PN2725

MR CAIRNEY: Yes, we understand that, yes.

PN2726

THE COMMISSIONER: So I mean obviously there has been a mix up of stapling, or photocopying, or whatever else.

PN2727

MR CAIRNEY: We understand that, yes.

PN2728

THE COMMISSIONER: So for all intents and purposes A34 represents, or remains the one sheet that I have.

PN2729

MR CAIRNEY: The single - indeed.

PN2730

THE COMMISSIONER: And I don't have any further documents attached to my A34.

PN2731

MR CAIRNEY: No, neither do we, sir, so we will just try and find out where the Gremlin came from and resolve it.

**** DAVID DANIEL SELIGMANN RXN MR FEEHAN

PN2732

THE COMMISSIONER: All right, so what I suggest we do given the lateness of the hour, that we adjourn this matter until 10.30 on the day of the 21st. So I'm going to have to call you back on I think it is Wednesday the 21st, isn't it - Tuesday the 21st for 10.30, all right. Until that time you are under oath still so you need to remember that and not to let yourself be misled by anything, or anyone else.

PN2733

MR CAIRNEY: Or discuss - I assume what you are talking about is discuss his evidence with anybody?

PN2734

THE COMMISSIONER: Yes.

PN2735

MR SMITH: Well, he certainly won't be on the job doing it, will he?

PN2736

MR FEEHAN: No.

PN2737

THE COMMISSIONER: Okay, thank you.

ADJOURNED UNTIL TUESDAY, 21 AUGUST 2001 [4.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

BARRY DOUGLAS HILL, SWORN PN2286
EXAMINATION-IN-CHIEF BY MR DEAKIN PN2289
EXAMINATION-IN-CHIEF BY MR SMITH PN2349
EXAMINATION-IN-CHIEF BY MR FEEHAN PN2367
CROSS-EXAMINATION BY MR CAIRNEY PN2378

RE-EXAMINATION BY MR SMITH PN2452
RE-EXAMINATION BY MR DEAKIN PN2457
WITNESS WITHDREW PN2522
DAVID DANIEL SELIGMANN, SWORN PN2525
EXAMINATION-IN-CHIEF BY MR DEAKIN PN2527
CROSS-EXAMINATION BY MR SMITH PN2594
RE-EXAMINATION BY MR DEAKIN PN2653
RE-EXAMINATION BY MR FEEHAN PN2687