RE2004/1207, Transcript of Proceedings [2005] AIRCTrans 1130 (12 May 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 11460-1

DEPUTY INDUSTRIAL REGISTRAR JENKINS

RE2004/1207

DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-CONSTRUCTION AND GENERAL DIVISION, NEW SOUTH WALES DIVISIONAL BRANCH
s.285A(3) Appln for revocation of permit
(RE2004/1207)

SYDNEY

10.22AM, WEDNESDAY, 04 MAY 2005

Continued from 3/5/2005

PN1157

THE DEPUTY INDUSTRIAL REGISTRAR: Firstly, my apologies to the parties for the delay in starting this morning.

PN1158

MR PEARCE: Registrar, yesterday this question arose about - and both the witnesses were being cross-examined about who their employer is, and there was a request I think to Mr Wyer to get his group certificate. Well, overnight we have made inquiries of the state registered organisation, and they've provided us with copies of the relevant group certificates in respect of both Mr Wyer and Mr Glass, and if I can propose to tender those. Also in the tender is a copy of the certificate of registration of the state organisation. While it's a matter for submissions I think it's really beyond doubt that both of these persons are, notwithstanding the evidence of Mr Glass' own perception, are employees of the state registered organisation and not the federally registered CFMEU. They are of course officials of the federal union and the state union.

EXHIBIT #R17 GROUP CERTIFICATES

PN1159

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, when you say they're officials of the federally registered union - - -

PN1160

MR PEARCE: They hold office.

PN1161

THE DEPUTY INDUSTRIAL REGISTRAR: They hold an office as defined in the Workplace Relations Act?

PN1162

MR PEARCE: They hold an office under the rules. I'm not sure that an office under the rules of the CFMEU on all occasions is an office as defined under the Act. We're getting into areas that we don't really need to get into, I suspect. And they hold permits under the federal Act, of course, and under the state Act, right of entry permits.

PN1163

THE DEPUTY INDUSTRIAL REGISTRAR: Perhaps I should just indicate that I don't wish to pursue that at this point in time, but I may need to. That's not necessarily a matter before me currently. Can I move to rule in relation to the objection that was made yesterday afternoon.

PN1164

After careful consideration of the objection taken to the question asked by counsel for the applicant, and having regard to the rulings that I made in relation to the admissibility of various paragraphs in Mr Carolan's statement, I have on balance decided to allow the question. At this point in the proceedings it appears that the purpose of the visit to the Bondi site is in contention. The intentions of the respondent, his perceptions and motives are clearly relevant in relation to the Bondi site in 2003. On balance I have decided that the respondent's actions, motives, intentions in relation to the previous picnic day in 2002 are sufficiently relevant to permit questions to be asked in cross-examination.

PN1165

Although I ruled various paragraphs of Mr Carolan's statement are inadmissible on the grounds of relevance and in some respects hearsay, I have reached the view that questions to the respondent in cross-examination that go to his intentions and motives on the previous picnic day are sufficiently relevant and connected to the application before me to be permitted. I distinguish the current position that has been reached in these proceedings from that applying when I made the earlier ruling in relation to Mr Carolan's statement, in particular, where I stated at paragraph 3572 of transcript that:

PN1166

I suppose I am particularly mindful of the potential for these paragraphs to lead to an excessive lengthening of the matter before me and, in any event, to in effect possibly require the litigation of another entirely different set of facts and circumstances.

PN1167

They're my reasons for the ruling.

PN1168

MR PEARCE: Registrar, can I say something, not in relation to that ruling but in relation to this matter overall. There is no evidence before you on which this cross-examination is going to proceed. They have closed their case. If the
cross-examination proceeds, of course, the evidence of Mr Wyer will just have to be totally accepted, it being the only evidence before you.

PN1169

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I understand.

PN1170

MR PEARCE: I must say, I don't know on what evidentiary basis my learned friend can cross-examine, but that's a matter for him, there being no evidence before you about any of these events, and they have closed their evidence.

PN1171

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I understand that point, Mr Pearce.

PN1172

MR COLEMAN: Registrar, just before the witness comes back in, my learned friend tendered a document that was marked R17. Could I just seek clarity? That was a photocopy of two PAYG payment summaries?

PN1173

MR PEARCE: And the certificate of registration.

PN1174

THE DEPUTY INDUSTRIAL REGISTRAR: Perhaps it will be appropriate to mark the certificate of registration as a separate exhibit.

EXHIBIT #R18 CERTIFICATE OF REGISTRATION OF CFMEU NEW SOUTH WALES DIVISIONAL BRANCH

PN1175

MR COLEMAN: Just on the same subject matter, Registrar, yesterday I tendered summonses addressed to both Mr Wyer and Mr Glass and, Registrar, there was a letter addressed to you from Rita Mallia, solicitor for the respondents, dated 15 April 2005. I tender that letter as well.

PN1176

MR PEARCE: What's the relevance?

PN1177

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, do you have a copy of the letter? I'm just mindful that I don't believe I've got one before me at the moment. Mr Pearce, are you objecting to the tender of this exhibit?

PN1178

MR PEARCE: Yes. What's the relevance of it, I would just ask my learned friend?

PN1179

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman?

PN1180

MR COLEMAN: This is a letter written by the representative of the two recipients of the summons, and it's a communication with the Commission, in a total way separately with the applicant, to the effect that there was nothing to produce. The witnesses were cross-examined on that subject matter yesterday and it's relevant to that question.

PN1181

DEPUTY PRESIDENT: Excuse me, how is the question relevant? They may have been cross-examined, but what is the relevance of this letter, what is it that my learned friend will seek to draw from this letter in his submissions? That's the question.

PN1182

MR COLEMAN: That's a matter for submissions.

PN1183

MR PEARCE: Well, it's a matter for relevance if he is not prepared to tell you now that it's not relevant.

PN1184

MR COLEMAN: It's got the same relevance as the tender of the summonses yesterday, questions to the witnesses, and the documents that were as well tendered by my learned friend this morning.

PN1185

MR PEARCE: What is that relevance please?

PN1186

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, do you have anything further to say?

PN1187

MR COLEMAN: The only other thing further is, it's a communication between the respondent's representatives and the Commission, and I seek to have it marked as an exhibit.

PN1188

MR PEARCE: Well, Registrar, I maintain the objection. I don't know why it's relevant, you don't know why it's relevant, my learned friend won't tell you why it's relevant. It's ridiculous. You should reject the tender.

PN1189

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, when the actual summonses were tendered you didn't object. I'm just a bit unclear in my mind how they are to be distinguished from this document in terms of relevance.

PN1190

MR PEARCE: Well, I didn't object, that doesn't make them relevant. Now I do object.

PN1191

THE DEPUTY INDUSTRIAL REGISTRAR: That's what I wanted to clarify.

PN1192

MR PEARCE: With respect, Registrar, it's a question you should ask my learned friend.

PN1193

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman?

PN1194

MR COLEMAN: Registrar, the relevance is absolutely abundantly clear. It's a communication between the representative of the two respondents with the court in relation to summonses that are in evidence and are directly going to the subject matters of the summonses and the response to it. Both witnesses were
cross-examined on that subject matter. It's highly relevant, in my submission, and the objection is simply difficult to understand.

PN1195

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, what's the relevance of the summons that I have admitted into evidence? Just in order to get my mind clear, there are now two documents admitted into evidence, and one clearly relates to them not being objected.

PN1196

MR COLEMAN: Well, the witnesses were cross-examined about their compliance with the requirements of the summons. A summons to produce documents is a very important document, it's filed by the applicant in this case, but it's a requirement from the Commission to the people who the document is addressed to, to do certain things, and compliance with it is a very important matter. And communication to the court, to the Commission, directly to yourself, Registrar, in relation to that subject matter is relevant. For example, Mr Glass gave some evidence that arguably on the basis of it I will be able to make a submission that perhaps there was a failure to comply.

PN1197

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Mr Coleman?

PN1198

MR COLEMAN: That perhaps there was a failure to comply with what was required by the summons.

PN1199

MR PEARCE: Well, was that put to Mr Glass? I don't remember it being put to Mr Glass, and it's not available to be made in those circumstances.

PN1200

MR COLEMAN: Please don't interrupt. It may also be that the documents tendered this morning by Mr Pearce are, certainly R17, may arguably also indicate that there was non-compliance with the summons.

PN1201

MR PEARCE: By the union, is that what you're saying?

PN1202

MR COLEMAN: If that's the case. I certainly don't make that submission at this stage. I will need to read what was said and prepare the summons with the documents and the transcript. But there may well be an argument there was a failure to comply with the summons.

PN1203

MR PEARCE: As I understand it, the summons to the union isn't even in evidence, it hasn't been tendered

PN1204

MR COLEMAN: Registrar, the letter, if Mr Pearce reads it, dated 15 April, is in relation to the summons to the three entities, including the two respondents.

PN1205

MR PEARCE: Well, my learned friend has just said that he may make some submission about the union, and that's what prompted me to say the summons to the union isn't even in evidence.

PN1206

THE DEPUTY INDUSTRIAL REGISTRAR: Which is the case as far I'm concerned.

PN1207

MR PEARCE: So I don't know what submission he can even make in relation to the union. In relation to the individuals, if he is going to make some submission that there hasn't been compliance, then perhaps he ought to have put that proposition squarely to Mr Glass when he was in the witness box. There is no need for him to put it to Mr Wyer, because Mr Wyer has explained that he hasn't got his tax returns. I presume my learned friend accepts that, there being no other evidence to the contrary.

PN1208

MR COLEMAN: Registrar, this is quite improper. My friend just keeps getting up on his feet putting further ridiculous arguments. It's a matter for submissions at the end of the case as to what findings there should be. It's not a matter in the middle of the presentation of evidence to determine what submissions may or may not be made. After all the evidence is in then submissions are put together and made. If, as Mr Pearce says, there's something that I out of fairness should have put to Mr Glass and didn't, then that might restrict what submissions I can make, but that's a matter for consideration at the end of the case. It doesn't impact on the relevance of this document. Also, Registrar, for the sake of completeness I would seek to also tender the summons addressed to the union as well.

PN1209

THE DEPUTY INDUSTRIAL REGISTRAR: Do you have a copy of the summons, Mr Coleman?

PN1210

MR COLEMAN: Yes, I can hand up a copy.

PN1211

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce?

PN1212

MR PEARCE: How does my learned friend say this is relevant, Registrar?

PN1213

MR COLEMAN: I've already made my submissions.

PN1214

MR PEARCE: I'm sorry, I must have missed them, Registrar, so can I ask you again, through you, Registrar, why does my learned friend say this document is relevant?

PN1215

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, this summons addressed to a person who isn't and hasn't been a witness before me. Do you have anything further that you wish to say before I rule on this?

PN1216

MR COLEMAN: The person hasn't been a witness, but I also seek to tender the letter signed by Rita Mallia on 5 April, which is purportedly in reply to that summons as well. And clearly the document that was tendered this morning, R17, arguably - I don't make this submission at this stage - arguably being a failure to comply with the summons.

PN1217

MR PEARCE: So my learned friend puts this in on the basis that he may make a submission that there has been a failure to comply with the summons. I think he had better make up his mind, because if he intends to make that submission then obviously it's relevant. If he doesn't intend to make it then obviously it's not relevant. But I think he better make up his mind. He can't have a bet each way. And I've said obviously it's relevant, but I want to say something about that in a moment.

PN1218

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Mr Pearce, about?

PN1219

MR PEARCE: About the matter.

PN1220

THE DEPUTY INDUSTRIAL REGISTRAR: I'm prepared to admit these documents into evidence.

EXHIBIT #A15 SUMMONS TO WITNESS ADDRESSSED TO SECRETARY CFMEU, CONSTRUCTION GENERAL DIVISION, NSW DIVISIONAL BRANCH
EXHIBIT #A16 LETTER TO RITA MALLIA DATED 15/04/2005

PN1221

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, you wanted to raise another matter?

PN1222

MR PEARCE: Well, you've already admitted it. I wanted to say something further about it.

PN1223

THE DEPUTY INDUSTRIAL REGISTRAR: About?

PN1224

MR PEARCE: About the relevance f it.

PN1225

THE DEPUTY INDUSTRIAL REGISTRAR: My apologies, Mr Pearce, I thought that you wanted to go on to some other matter that you wanted to raise before me. About the relevance of?

PN1226

MR PEARCE: Yes. Even allowing that that submission is going to made, it can't be relevant because these documents have been produced by the state registered union. There was no summons to the state registered union.

PN1227

MR COLEMAN: Registrar, Mr Pearce had every opportunity to put his case, and he indicated to you, Registrar, that he had put his case and was ready for a ruling. Now he is trying to put more material to cavil with that ruling. But what he has raised anyway is a subject matter for final submissions.

PN1228

MR PEARCE: I'm sorry, it goes directly to the relevance. I mean, I have to say this frankly, Registrar. I don't think my learned friend appreciates Moore and Doyle, and those issues. I don't say that with any disrespect. He practises extensively in the industrial relations area but he doesn't deal with organisations, as far as I know. I do every day of the week. The state of the law, as I understand it, is that there are two separate legal entities, and the summons was served on one entity and the documents produced by another entity.

PN1229

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I appreciate that point, Mr Pearce, and I deal with registered organisations on a daily basis as well.

PN1230

MR PEARCE: I understand that, Registrar.

PN1231

THE DEPUTY INDUSTRIAL REGISTRAR: I'm not prepared to revisit my ruling, although I offer my apologies for misunderstanding your earlier comment about wishing to say something. I don't believe anything is to be served by continuing with this or revisiting the tender of the documents. The points that are now being raised can be dealt with in an appropriate point in time in these proceedings, so that we move on.

PN1232

MR PEARCE: Right.

PN1233

THE DEPUTY INDUSTRIAL REGISTRAR: The witness can be recalled.

<MARTIN RONALD WYER, RECALLED ON FORMER OATH [10.43AM]
<CROSS-EXAMINATION BY MR COLEMAN

PN1234

MR COLEMAN: Mr Wyer, you recall yesterday I was asking you some questions on what you said was a perception by you and Mr Glass that there was a fall hazard at part of the site?---Yes.

PN1235

I asked you some questions about whether or not you had made a report to WorkCover in relation to that?---Yes.

PN1236

Does the union, the CFMEU, have any procedure in relation to practice or procedure in relation to following up on perceived safety issues?

PN1237

MR PEARCE: Relevance, Registrar, I object to it on the basis of relevance.

PN1238

MR COLEMAN: It goes to what's clearly an issue as to the purpose of the visit.

PN1239

MR PEARCE: How?

PN1240

MR COLEMAN: I think we need to discuss this in the absence of the witness.

PN1241

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Wyer, you can be excused for a moment.

<THE WITNESS WITHDREW [10.44AM]

PN1242

MR COLEMAN: It's pretty clear that the response to this application, or part of it is that these two permit holders weren't there pursuant to that, that's my perception anyway of the respondent's have run their case. In the alternative they seem to be asserting that if they have to have an authority to be on site it was pursuant to occupational health and safety rights. The purpose of my question is in relation to that assertion and, in my submission, what was done to follow up on any perceived safety issues or not would bear on whether that was, in fact, the reason for the visit, the purpose of the visit, or perhaps whether there was some other reason or purpose, a similar line of questioning to what I asked him yesterday, without any objection as I recall it, as to whether he made any report to WorkCover. So I'm just asking him if there was any internal union policy practice or procedure to deal with safety issues that are raised but not dealt with straight away.

PN1243

I mean, if my learned friend says that the purpose and reason of their visit isn't in issue, then I won't ask that question. But I see that it is.

PN1244

MR PEARCE: Of course it's in issue. But leaving that question aside, it's one thing to ask a man what he did, it's another thing to ask this man, does the union have any policy? Now, if there was going to be a cross-examination on that basis I would have thought my learned friend would have issued a summons to the union asking them for the policy. I mean, this is just cross-examination about matters that my learned friend doesn't know anything about. Why would this man particularly know whether the union had a policy or not? In any event, how can it be relevant?

PN1245

I mean, if my learned friend had issued a summons and got the policy, and the suggestion was the policy hadn't been complied with, that would be a different question. You can't just cross-examine, Registrar, without an evidentiary basis. Now, he has closed his evidence. He has not put any policy the union has in to the evidence and, you know, we're just meandering all over the place asking questions upon which no evidentiary basis has been established by the applicant.

PN1246

MR COLEMAN: It's a very unusual submission to make, and wrong, as Mr Pearce has just made it, that I am somehow confined in the questions I can ask this witness by the material in the applicant's evidentiary case. That's absurd, it's just not right. I don't want to repeat my earlier submission in relation to relevance. In my submission the relevance is absolutely clear. This witness has given evidence that he has been an organiser for some number of years, and he has given evidence that his top priority in his duties and work as an organiser is in relation to safety. It's quite proper and appropriate for me to ask him in relation to the practice and procedure in relation to safety matters that he has identified.

PN1247

MR PEARCE: But you're asking about the union's policy, not his.

PN1248

THE DEPUTY INDUSTRIAL REGISTRAR: I'm prepared to allow the question, Mr Coleman. The witness can be recalled.

<MARTIN RONALD WYER, ON FORMER OATH [10.48AM]
<CROSS-EXAMINATION BY MR COLEMAN, CONTINUING

PN1249

MR COLEMAN: Mr Wyer, in circumstances where a safety issue is perceived and raised with an employer and unresolved, does the union have any practice or policy or procedure in relation to how those matters are dealt with?---No.

PN1250

Do you have any practice that you normally follow in relation to unresolved safety issues?---Not necessarily on that as cut and dried.

PN1251

What do you normally do?---Depending on the circumstances.

PN1252

I take it your evidence is that you normally just work away and leave it unresolved?

PN1253

MR PEARCE: Well, I object to that question, it's derogatory.

PN1254

THE DEPUTY INDUSTRIAL REGISTRAR: I think, Mr Coleman, the question could be rephrased, thank you.

PN1255

MR COLEMAN: You gave evidence yesterday that you didn't take any further action in what you say was a fall hazard on this site, didn't you?---On any of the action on that site, no, I didn't.

PN1256

I'm sorry, I missed the first bit?---Sorry, no, I didn't.

PN1257

But you usually would do something about a perceived safety problem that hadn't been rectified, wouldn't you?---Not necessarily. Depending.

PN1258

Can I ask you to have a look at this document. Could you have a look at that.

PN1259

MR PEARCE: Registrar, this is not a document that we've ever seen before. I thought there were orders made about documents being produced.

PN1260

MR COLEMAN: There's nothing in any directions made of any normal practice or procedure in any tribunal or court that I'm aware of that prevents me from putting a document to a witness in cross-examination.

PN1261

MR PEARCE: One that's not in evidence, and you've closed your case.

PN1262

MR COLEMAN: Absolutely nothing in any rule of evidence, any evidence in relation to - any statute in relation to evidence, any practice or procedure in any court or tribunal of which I'm aware which would prevent a party from putting a document to a witness in cross-examination.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1263

MR PEARCE: Well, I object to any cross-examination on this document on two bases.

PN1264

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, I think the witness should probably be excused.

PN1265

MR PEARCE: Sorry, yes, if you like.

PN1266

THE DEPUTY INDUSTRIAL REGISTRAR: I would prefer the witness to be excused if we're going to go down this.

<THE WITNESS WITHDREW [10.51AM]

PN1267

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr Coleman.

PN1268

MR COLEMAN: It's probably appropriate, Registrar, for the purpose of the debate that I pass you up a copy.

PN1269

MR PEARCE: You might tell us what it is too, or what you say it is.

PN1270

MR COLEMAN: Well, that was going to be my next question to the witness.

PN1271

MR PEARCE: Well, if you don't know what it is how can you cross-examine the witness on it? Do you have any instructions on it?

PN1272

MR COLEMAN: Well, that's none of your business.

PN1273

MR PEARCE: Well, it's going to become my business very shortly, my client's business.

PN1274

MR COLEMAN: Those comments by Mr Pearce, he took great exception to questions yesterday by me that he perceived related to what his client's instructions were to him at any particular point in time. And then he asks me across the bar table whether I have instructions on something that had been raised. It is simply none of his business, and he knows it.

PN1275

THE DEPUTY INDUSTRIAL REGISTRAR: Can we just go off the record for a moment please.

OFF THE RECORD

PN1276

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, can you indicate to me what this document is and what your purpose in wishing the cross-examine the witness on it is?

PN1277

MR COLEMAN: Yes. My understanding of this document is that it's a standard form used by BWIU and its organisers to follow up on what are perceived to be safety issues, served on the employer and asking the employer to do certain things. Sorry, that's in relation to the CFMEU. I mean, there was a subpoena, a summons to produce documents in this case, there was no document of this nature came in, in response to that, by either of the three recipients of the summons.

PN1278

MR PEARCE: How does this - - -

PN1279

MR COLEMAN: There is no evidence that a document like this was filled out by Mr Wyer and Mr Glass and given to the employer, and in the absence of evidence that this was done it goes to the purpose of them being there, because it leads to the submission at the end of the case that the absence of a document of this nature in circumstances where it was available to them to indicate that, firstly, there was no perceived fall hazard, which is being put forward as the reason for the entry onto the site. That's the relevance and that's the nature of the document.

PN1280

MR PEARCE: Registrar, that would be a great submission if my learned friend had called some evidence about what this document was in his case. I want to ask a question in relation to this document. It's plainly not the property of the applicant, on the face of it anyway, so how does the applicant come to have a document of this nature in its possession? Is it otherwise said to be relevant to the events on 2 December. I raise the first question about how does the applicant come to have possession of this document because it may well have been, in fact, more likely than not that this document was produced in response to some sort of notice or subpoena in some other proceedings. It's just a hunch, otherwise I don't know how they came to their position, and therefore even introducing it in these proceedings would be most improper, because documents are produced in other proceedings for the purposes of those proceedings. So that's why I ask that question. So how do they come to have a copy of it? It's obviously not their document on the face of it. It's not the BWIU's document. Well, that organisation doesn't exist any more, which my learned friend referred to.

PN1281

MR COLEMAN: Well, I think I rectified that, I think I referred to the CFMEU, in correcting what I earlier said.

PN1282

THE DEPUTY INDUSTRIAL REGISTRAR: It appears to belong to some other entity called the Building Trades Group of Unions.

PN1283

MR PEARCE: On the face of it. But there's no evidence about that.

PN1284

THE DEPUTY INDUSTRIAL REGISTRAR: That's true.

PN1285

MR PEARCE: At the end of the day it's about some Plumbers Containers or something. It's all blacked out. As I said, really, Registrar, serious questions are being raised here as to what this document is even doing in these proceedings.

PN1286

MR COLEMAN: For a start, I haven't sought to tender this document. My only conduct at this stage is to hand a copy to the witness and then commence, but not even get to ask a question before Mr Pearce raised his objection. The proper time to object to a document is at the time of tender. To the extent that an objection has been foreshadowed on the basis that somehow it would be unlawful for my client to tender this document, firstly, no tender application has been made. But for my friend to object to its tender on the basis that somehow my client holds it unlawfully, he would have to have some evidence about it if he thinks it does. Certainly none that we've seen.

PN1287

MR PEARCE: Well, if my learned friend proposes to continue with the use of this document, I wish to have a voir dire and call Ms Siciliano, the applicant, to establish how she got a copy of it.

PN1288

MR COLEMAN: If she did.

PN1289

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, is it the intention of the applicant that this document be shown to the witness as an example of this type of document?

PN1290

MR COLEMAN: Indeed, as to whether he is familiar with it and what it's purpose is. That was the extent of my proposed questions at this stage. Then at the end of the case the obvious submission, that the absence of any document of this nature in the context of the events of 2 December 2003, a submission that relates to the purpose of being there and the lack of genuineness of what - of safety issues as being the purpose. Indeed, as put to the witnesses yesterday, arguably the application of the form hasn't, as the justification for entering the site.

PN1291

MR PEARCE: Registrar, if that's the case I wish to call Ms Siciliano to establish how and in what circumstances this document came into her possession. Presumably it has since she has given it to my learned friend's instructing solicitor. I think she is in court.

PN1292

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, can I ask you, isn't it possible for you to ask questions of the witness without needing to show this document?

PN1293

MR COLEMAN: Well, I did. I did ask him some questions in relation to practice, procedure, and he has answered to the effect that there wasn't one. So this is to follow up on those answers. Even if he had told me that there was one, I wouldn't have to have shown him this document.

PN1294

MR PEARCE: Well, you know, the problem with that is, of course, that my learned friend is really obliged to accept his answer because he has got no other evidence. It's going to be the same problem if he cross-examines on visits to other sites. I press, if there is to be any use made of this document, and I wish to call Ms Siciliano in a voir dire to establish how it came into her possession. I think you have to be satisfied that this is not a document from another set of proceedings or notices that's being used improperly.

PN1295

MR COLEMAN: Certainly, Registrar, if I seek to tender this document, and if it is accepted into evidence, my friend, in the conduct of his case, has the right to call witnesses. That's his right subject, of course, to relevance and compliance with directions and so forth.

PN1296

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, I've decided not to show the document to the witness. I think if this document had been a totally blank, never used form, I might have reached a different view, but in all the circumstances I think the more efficient and appropriate course if for you to ask questions to the witness in any event. I think that there's sufficient capacity for you to cross-examine the witness without having that document in these proceedings.

PN1297

MR COLEMAN: Yes, Registrar.

<MARTIN RONALD WYER, ON FORMER OATH [11.02AM]
<CROSS-EXAMINATION BY MR COLEMAN, CONTINUING

PN1298

MR COLEMAN: Mr Wyer, have you ever seen a document entitled Safety Rectification Notice?---Like that one that was shown - - -

PN1299

MR PEARCE: I object to the witness answering the question. It's plain that he, having seen the document, that it's impossible to have this cross-examination, and I think it's just unfair for it to proceed.

PN1300

THE DEPUTY INDUSTRIAL REGISTRAR: I think we inevitably ended up at that point as a result of my earlier ruling, Mr Pearce. But I think that in order to be fair to the applicant, given how that proceeded, that I will allow the question.

PN1301

MR COLEMAN: Mr Wyer, have you ever seen a document headed up Safety Rectification Notice?---The Building Trades Group Safety Rectification Notice.

PN1302

What purpose does that notice have?---Some organisers - - -

PN1303

MR PEARCE: I object, Registrar. What is the relevance?

PN1304

MR COLEMAN: I've got nothing more to say on relevance to what I said.

PN1305

THE DEPUTY INDUSTRIAL REGISTRAR: I'm prepared to allow the question.

PN1306

MR COLEMAN: Mr Wyer, what is the purpose of that document?---Some organisers use that for details, some of the safety risks that they are doing when they do an inspection on site.

PN1307

It's to put the employer on notice, is it, of what is believed to be a safety problem?

PN1308

MR PEARCE: I object to that. My learned friend is now trying to summarise what is in a notice of some sort that you've ruled can't be cross-examined on.

PN1309

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, can that question be rephrased.

PN1310

MR COLEMAN: What's your understanding, Mr Wyer, of the purpose of the issue of the notice, safety rectification notice?

**** MARTIN RONALD WYER XXN MR COLEMAN

PN1311

MR PEARCE: He has already been asked that question and answered it.

PN1312

THE DEPUTY INDUSTRIAL REGISTRAR: I think I will allow that
question?---As I said, some organisers use that as a tool for safety. I don't. Sorry, I'll change that. I very rarely do. I have used it on the odd occasion, maybe three times, four times that I can remember, somewhere around that.

PN1313

MR COLEMAN: When you have used it what are the circumstances in which you've used it?

PN1314

MR PEARCE: Well, I object again. What's the relevance of that? This man has been an organiser, on his own evidence, for about 12 years. Are we going to trawl through every safety incident he has ever been involved in, in the industry?

PN1315

THE DEPUTY INDUSTRIAL REGISTRAR: I accept the point that you're making, Mr Pearce. I'm prepared to allow that question but, Mr Coleman, I'm putting you on notice that I think that there is a limit to which those sorts of questions can be pursued.

PN1316

MR COLEMAN: When you have used that notice, that form, Mr Wyer - - -

PN1317

MR PEARCE: Registrar, that form, in my respectful submission that's again a covert or overt reference to a document that you said can't be cross-examined on, and it's designed to create in the witness' mind a certain appreciation of what the question. You shouldn't allow it, it's unfair.

PN1318

MR COLEMAN: Registrar, the witness has already said he is aware of the form and that he has used it.

PN1319

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I think I will allow that question, Mr Coleman. I'm not sure that questions about other incidents in other places are of any use whatsoever in these proceedings. I will permit you to ask that question.

PN1320

MR COLEMAN: Mr Wyer, when you have used this form on occasion what was your purpose for doing so?---I can't remember that.

PN1321

You didn't issue any form of this nature on 2 December or thereabouts, 2003, did you?---No. It's not my normal practice to do that.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1322

What is your normal practice in relation to unresolved safety issues?

PN1323

MR PEARCE: Registrar, this question has been asked several times yesterday.

PN1324

THE DEPUTY INDUSTRIAL REGISTRAR: I'm prepared to permit the question, Mr Pearce.

PN1325

MR PEARCE: The thing that I object, it's oppressive.

PN1326

THE DEPUTY INDUSTRIAL REGISTRAR: I'm overruling the objection, Mr Coleman. Ask the question.

PN1327

MR COLEMAN: What is your normal practice in relation to unresolved safety issues?---I don't know whether I have a normal practice, but that I don't have a set pattern. I deal with what's in front of me. Normally I would go there, and the idea of the whole thing is to - what do I say - empower the safety committee, is my normal role with a safety issue, do an inspection. That's why I don't write those out. I have them safety committee write them out, and then they go up on noticeboards on the site, and therefore everybody is involved with the process rather than the process revolving around me.

PN1328

That type of procedure wasn't followed by you, was it, on
2 December2003?---There was no safety committee, no.

PN1329

That you're aware of?---That I'm aware of, yes.

PN1330

It's not your normal practice to leave what you believe to be a significant safety issue unresolved, is it?---It's my normal practice not to bash my head against a brick wall.

PN1331

Coming back to my question, it's not your normal practice, is it, to leave what you perceive to be a significant safety issue unresolved?---I think I answered that fairly. I try to achieve an outcome. Sometimes I'm not successful.

PN1332

I think you agreed with me yesterday that when you left the site on the second occasion on that day, the perceived safety, a fall hazard was still there and people were working somewhere adjacent to it?---I said that, and I also said yesterday that the major safety problem was the lack of consultation and safe work methods, the proper framing so that the risk would not occur, all the risks would not occur, not just one.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1333

Just to confirm. After you left the site on 2 December 2003, yo did nothing more in relation to the fall hazard, did you?---No, I didn't.

PN1334

Now, yesterday I asked you a question, early on yesterday, as to your recollection of where you were and what you were doing in 2002, December 2002 on picnic day, the year before you were at the Bondi site?---Yes.

PN1335

I think your recollection was that, well, you had no recollection of where you were and what you were doing on that day?---No, that would be fair, yes.

PN1336

Have you turned your mind to that subject matter?---Yes, I have.

PN1337

Have you been able to reach any other conclusion?---No.

PN1338

I'll just ask you to have a look at this document.

PN1339

MR PEARCE: I object to this question. Registrar, that's the end of the matter. My learned friend has got not evidence on which he can cross-examine.

PN1340

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Wyer, could you please be excused for a moment.

<THE WITNESS WITHDREW [11.10AM]

PN1341

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce?

PN1342

MR PEARCE: That's the end of the matter. The man has no recollection. My learned friend has got no evidence on which he can cross-examine. There's no evidence before you.

PN1343

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman?

PN1344

MR COLEMAN: If I was examining this witness in-chief, and I got an answer that there was no recollection, or in re-examination, then there would be normal rules that would prevent me from cross-examining my own witness. He is not my own witness, he is a respondent in this case, and I'm cross-examining him and I can't be limited in the way that Mr Pearce suggests. There's no limitation in relation to the type of constraint that he is trying to impose. The witness hasn't even been shown the document. What I intend to show the witness is sworn statement.

PN1345

MR PEARCE: I can see that.

PN1346

MR COLEMAN: And ask him whether that assists him in his recollection.

PN1347

MR PEARCE: But there's nothing in that statement. Those paragraphs that he wants to show him aren't in that statement. They've been objected to and ruled out.

PN1348

MR COLEMAN: No, that's not right. They're all in the statement. They haven't been accepted into evidence but they're in the statement, and that's what I intend to take the witness to.

PN1349

MR PEARCE: That's my very point, Registrar, there is no evidence and, you know, you just cross-examine - at this point in the proceedings my learned friend can't cross-examine where there is no evidence in the proceedings before you on this question. If he treats that as evidence for the purposes of his instructions, well, he may be able. He may not be in breach of the Bar rules, then again he may be.

PN1350

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, I must say, just sort of innately as a matter of fairness to the witness, I have some concerns about a witness being shown a document that I have specifically concluded, your considerable amounts of from evidence. I appreciate the distinction you're making, but just as a matter of fairness to the witness I do have some considerable concerns about that. I appreciate that the document in its form before tender, or in the form that it appears there is something that may or may not jog the witness' memory, but just as a general proposition I must say I'm a bit hesitant to say, yes, you can show the witness that entire document.

PN1351

MR COLEMAN: Well, in my respectful submission, Registrar, there's no reason for the evidence in that regard. For example, in response to the summons for production to this witness, there's been a diary produced, they've shown an entry, and quite proper for me to take that document not in evidence, not part of the applicant's case, put it to the witness ask him whether, having read that, it refreshes his memory as to where he was and what he was doing on a particular day. There's no difference. This might or might not assist him, and that's what. Quite allowable, in my submission, in cross-examination, particularly on what I submit is a substantially relevant point.

PN1352

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, I'm prepared to permit you to show the document to the witness on the proviso that the witness is advised at the commencement of your question that substantial amounts of this document have not been tendered in evidence.

PN1353

MR COLEMAN: Thank you, Registrar.

PN1354

MR PEARCE: Registrar, can I ask if he be advised of those parts that have not been?

PN1355

MR COLEMAN: I'll do that. What I'll do is, I only want him to read - I mean, he is welcome to read the whole document, but paragraphs 7 to 10, and I'll advise him that none of that material is admitted into evidence.

PN1356

THE DEPUTY INDUSTRIAL REGISTRAR: Only paragraphs 7 to 10?

PN1357

MR COLEMAN: That's what I mean. He can read the whole document if he chooses to, and that would be his right, but I only intend to ask him to read paragraphs 7 to 10, and I'm more than happy to advise him that that wasn't admitted into evidence in the case.

PN1358

THE DEPUTY INDUSTRIAL REGISTRAR: The purpose of this is to attempt to see whether this might jog the witness' memory? Because I want to make it very clear, Mr Coleman, that I have no intention, despite my earlier ruling this morning, of permitting us to end up in the situation of having to run a mini hearing within this hearing about what happened on picnic day 2002.

PN1359

MR COLEMAN: Yes. I certainly won't be going into detail like that.

PN1360

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you. The witness can be recalled.

<MARTIN RONALD WYER, ON FORMER OATH [11.16AM]
<CROSS-EXAMINATION BY MR COLEMAN, CONTINUING

PN1361

MR COLEMAN: Mr Wyer, would you just have a look at that document, and you'll see from the heading it's a statement made by John Carolan, who identifies himself as a construction manager at MPM. Do you see that?---Yes.

PN1362

I want you to accept from me that this statement is part of the applicant's evidence in this case, but that the Deputy Registrar ruled out and didn't accept a number of paragraphs and parts of the document.

PN1363

MR PEARCE: Therefore it's not part of the applicant's evidence in this case.

PN1364

MR COLEMAN: Therefore it's not part of the applicant's evidence in the case and not matters that are before the Deputy Industrial Registrar as evidence. Do you understand that?---I think so, yes.

PN1365

Let me tell you in particular that paragraphs 7 to 10 in their entirety were struck out and that therefore not part of the evidence in the applicant's case. I would ask you to - please feel free to read the whole document if you wish, but I would ask you in particular to read paragraphs 7 to 10 just to yourself?---Yes, I've read 7 to 10, well, 1 to 10.

PN1366

You don't disagree, do you, that union picnic day in 2002 was
Monday, 2 December?---I take your word for it.

PN1367

MR PEARCE: Well, that's not evidence.

PN1368

THE DEPUTY INDUSTRIAL REGISTRAR: Well, it's a response. I think it's sufficient for the present.

PN1369

MR PEARCE: It means that he doesn't know, doesn't it?

PN1370

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I understand that, Mr Pearce. I think that's one possible interpretation of the response. That's the response we've got.

PN1371

MR PEARCE: So what's really happening here, Registrar, is my learned friend is inviting the witness to assume something about something that there's no evidence in the proceedings on. You know, soon I'll have to cross-examine my learned friend. He just can't go any further, can he?

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1372

THE DEPUTY INDUSTRIAL REGISTRAR: I'm prepared to allow Mr Coleman to go, Mr Pearce. I think that there are clearly things to be said about the value of the question and answer, but at this point in time it's not appropriate.

PN1373

MR COLEMAN: Do you recall attending a site at Macleay Street, Potts
Point?---I remember going to a site, an MPM site in that area about three times.

PN1374

Does that assist you in your recollection of what you were doing on
Monday, 2 December 2002, having read those paragraphs?---No, it doesn't, but I've got no evidence to the contrary. I have been to that site.

PN1375

Now, going back to 1 December 2003, Mr Wyer.

PN1376

MR PEARCE: Much ado about nothing.

PN1377

MR COLEMAN: I think you were still in the witness box yesterday and you were handed an A4 folder, it was marked as exhibit A4, do you remember
that?---Yes.

PN1378

I think you said that at one point in time on your visit that you had that in your hands and you passed it to Mr Glass?---Yes.

PN1379

Do you recall how it was returned to MPM?---No.

PN1380

But things had got very heated, hadn't they, by the end of the first visit, do you agree with that?---No. It was volatile but not very heated, no.

PN1381

And there was very loud voices?---I work in the construction industry. No, it wasn't heated.

PN1382

And there was the extensive use of swear words?---There was swearing.

PN1383

I suggest to you, you became very angry because both Kevin Crambrook and Rebecca Anderson had both told you that their intention was to keep the site open.

PN1384

MR PEARCE: Well, you know, that's three questions here. I suggest you became angry, I suggest that they told you something, and I suggest that's why you became angry. There's three questions there, it's an unfair question.

PN1385

THE DEPUTY INDUSTRIAL REGISTRAR: It's certainly in relation to two different persons. I think it would help if you asked separate questions, Mr Coleman. That is a bit tricky for the witness I think.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1386

MR COLEMAN: Now, by the end of the first visit, Mr Wyer, I suggest to you that you were quite angry?---No.

PN1387

I suggest to you that by then that Ms Rebecca Anderson had come to site, and after arriving at site and having a conversation with you had made a further phone call or so, and told you and confirmed to you that her intention was to keep the site open?

PN1388

MR PEARCE: I object to that question. There's six factual matters rolled up there. Now, some of them are not controversial. But he suggested she came to site, she did all these things, made phone calls, said this and that. I mean, which one does he answer? Does he go yes, no, yes, no, yes, no? These are what are colloquially called double barrel questions, only that's about a quadruple barrel question. I object to it, it's unfair and, frankly, it can't be relevant because you'll never know what the answer means.

PN1389

MR COLEMAN: I think the witness would have forgotten the question and I'll start again.

PN1390

THE DEPUTY INDUSTRIAL REGISTRAR: Can I indicate, Mr Pearce, that I think it would be preferable if cross-examination could proceed. I appreciate that you have your client's interests to serve. Mr Coleman, I think that it would assist the witness and this tribunal, and also minimise the number of objections if the questions could be broken down into component parts.

PN1391

MR COLEMAN: Yes, Registrar.

PN1392

Do you recall Rebecca Anderson, after she arrived, making a telephone
call?---No.

PN1393

I suggest to you she did, you were aware of that, and then after that telephone call she came to you and confirmed that MPMs decision was the site would remain open?---I can't remember none of that. I'm not sure what my reply to that would be.

PN1394

I suggest to you that it's at about the same time, that is, certainly in the first visit, that Mr Kevin Crambrook did the same in your presence, made a telephone call?---I'm not sure of that. I don't think so.

PN1395

He indicated to you that his boss' decision was the same, that his intention was to keep working?---Again, I'm not sure of that.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1396

I suggest to you that on receipt of that you became quite angry?---No, I dispute that.

PN1397

I suggest to you that towards the end of the first visit that you said word to this effect, we will be back in an hour and if the site is working we'll make so much fucking trouble for you, you won't know what's fucking hit you?---No.

PN1398

I suggest to you as you said those words you had the binder, exhibit A4, in your hands, and you shoved it aggressively and forcefully towards Rebecca Anderson?
---Under no circumstances did that happen, nothing like that happened, nothing that could be interpreted as that happened. Nobody mentioned it at all, and I take great offence that anybody would make that accusation against me.

PN1399

You take great offence because if that had been done it would be so obnoxious as it would be beyond the pale, wouldn't it?---It's totally outside of any behaviour that's acceptable on a construction site.

PN1400

I suggest to you when you shoved it at her forcefully you made contact with her chest?---No, under no circumstances anything like that could even be interpreted like that. No one said anything, there was nothing there, I cannot remember doing anything, handing the folder back to anybody at all. My best memory is that I passed it to David Glass, and that's my contribution to the folder. I don't remember anything other than that, and I was really surprised to read that. Well, I was disgusted to read that.

PN1401

Because that behaviour is just obnoxious?

PN1402

MR PEARCE: That's totally allegation, or making the behaviour itself?

PN1403

MR COLEMAN: That you believe that that behaviour is just obnoxious?

PN1404

MR PEARCE: What, again, are you referring to, the behaviour of the allegation being made, or the behaviour of himself? I'm just asking him to clarify that.

PN1405

MR COLEMAN: You were affronted at reading it, weren't you, Mr Wyer, because you believe that sort of behaviour is just obnoxious?---Not only is that obnoxious, it's obnoxious that anybody could put together lies like that about anybody in the situation of the way I carry out my work. The union does not act that way, I have never acted that way.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1406

Well, I suggest to you, you became very angry and you did precisely that?---No.

PN1407

MR PEARCE: I think this has been put about four times, six times, 10 times. It's being oppressive.

PN1408

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr Pearce. There will be some leeway but, Mr Coleman, I think we're reaching the end of our run on those lines of questions.

PN1409

MR COLEMAN: I'm not sure whether there was an answer to that before my friend - - - ?---No.

PN1410

Do you recall towards the end of the first visit giving anyone a business
card?---With the help of the statements I agree that I did go back to my car and give a business card.

PN1411

You gave it to Mr O'Dwyer?---Yes.

PN1412

Would you agree with me that you're quite a lot taller than Mr O'Dwyer?---Yes, probably.

PN1413

What is your height?---6'1".

PN1414

I suggest to you that you moved up very close to Mr O'Dwyer as you handed him a card, very close to him, looked down on him and said, as you gave him a card "I'm going to fucking get you." What do you say to that?---No.

PN1415

MR PEARCE: I object to that question. It's a triple barrel question, unfair.

PN1416

THE DEPUTY INDUSTRIAL REGISTRAR: My Pearce, I'm overruling that objection. The question is fine.

PN1417

MR PEARCE: Yes. As long as it's on the record, Registrar.

PN1418

THE DEPUTY INDUSTRIAL REGISTRAR: Certainly.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1419

MR COLEMAN: What do you say to that?---No. But to go further than that, my understanding is that I opened my car door, leant across to my glove box to get my business card out, and then I was behind the door when I handed it to the foreman. I did not, definitely did not say those words. The foreman, he's a nice enough guy, there was no aggro, there was no aggro between him and myself. It was just a - it didn't happen, it wasn't there.

PN1420

There were a number of things said by you to the effect that you were going to go through the books and make life very hard for MPM and All Tilt?---I have - I spoke about some of the things. I could have said that, I could have said something along those lines about looking to see if they - sorry, that they could have been breaching the award. But at that stage I still didn't know what their instrument was.

PN1421

Do you recall these words being said by you at about this time you left the site, "Don't fucking take me on, I'd love you to take me on, but I'm warning you, don't fucking take me on"?---I can't remember that.

PN1422

What did you do after you left the site the first time?---The first time we visited another site then came back.

PN1423

Do you recall where that was?---I recall the area. It was Rose Bay or that area.

PN1424

What did you do prior to going to the site at Bondi the first time, the MPM site at Bondi?---I went through - I'm not 100 per cent certain, but I've thought about it. Inspected sites, drove around through sites having a look, specifically Bondi Junction, where there was a huge site.

PN1425

Were you going around - - - ?---Sorry, and then straight before then went down and had smoko, had something to eat.

PN1426

So you had smoko immediately prior to going to the MPM Bondi site?---Yes.

PN1427

After you left MPM the second time in the afternoon, do you recall what you did for the rest of the day?

PN1428

MR PEARCE: I object to the question. What's the relevance?

PN1429

THE DEPUTY INDUSTRIAL REGISTRAR: I will allow the question for the moment, Mr Pearce?---No, I don't.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1430

MR PEARCE: You haven't asked him what he ate yet either.

PN1431

MR COLEMAN: Now, what's your recollection about the amount of time that passed between when you left from your first visit and arrived for your second visit?---I would be guessing, but maybe an hour or maybe a little bit more, something like that. I could be out by an hour for sure, you know. It's a long time ago.

PN1432

Were you driving the car?---Yes, it was my car.

PN1433

What's your recollection as to where you parked it?---When I came back to the site?

PN1434

Yes?---In the same place I parked it when I first went to the site.

PN1435

I'll suggest to you, you actually parked it in the same place, which was with the back of the car level with the gate. What do you say to that?---No, I didn't.

PN1436

And that doing that you blocked the access to and from the site?---No, I never blocked access to the site.

PN1437

Now, what did you do when you first arrived, after you got out of the car on the second visit?---I think, I'm not certain, but I think that I went and spoke to the project manager and the foreman.

PN1438

By that you mean Rebecca Anderson and Mr O'Dwyer?---Yes.

PN1439

Are you a bit hazy on that, are you?---It's a long time ago. As I said, I think that's my best recollection.

PN1440

I suggest to you that you and Mr Glass got out of the car and went straight down to where the All Tilt people were working?---That's not the way I remember it.

PN1441

And that you said words to the effect of, stop work now?---No.

PN1442

And words to the effect of, this site is closed, you should not be working?---I came back with the objective - no. I came back with the objective of getting the workers compensation certificate of currency and the safety paperwork. Again, that's what we came back for.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1443

Mr Wyer, you left with the threat that if the site was still working when you came back there would be all sorts of trouble?---I was attempting, from after being on the site for 10 minutes, to get the paperwork so that we could deal with the issues for a long term outcome.

PN1444

You arrived back on the second occasion and went straight down to where there was work going on and said "Stop work, stop work"?---That's not what I remember.

PN1445

Do you recall doing down to where work was being conducted at any stage on the second visit?---No. It's not far away. I mean, it's not a large site or anything. No, I don't recall actually going down to - - -

PN1446

So you have no recollection - correct me if I'm wrong - of saying anything to the All Tilt workers on the second visit?---I'm not sure of that. I could have, I may have. I may, you know, could have either way. I don't have a - I can't tell you if I said or if I definitely said something.

PN1447

I suggest that as you were talking to Mr Kevin Crambrook that he was working cutting mesh. Do you have any recollection of talking to Mr Kevin Crambrook while he was cutting mesh?---No.

PN1448

And that you stood very close to where he was working as you were speaking to him?---No.

PN1449

I suggest to you that you were effectively getting in the way of where he was working and the work he was doing?---No. That's not my practice.

PN1450

You say it's not your practice. I suggest to you that on this occasion that's exactly what you were doing?---No.

PN1451

Do you recall any discussion at all between you or Mr Glass and the All Tilt workers in relation to a work method statement?

PN1452

MR PEARCE: I object to that question. We know most of them are not All Tilt workers. I don't mean in my learned friend's instructions, but the evidence is it works differently. Therefore the question is not a fair question.

PN1453

MR COLEMAN: I'll withdraw that question then.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1454

MR PEARCE: You should refer to them as the Crambrook Brothers workers. I know the task force is interested in that.

PN1455

MR COLEMAN: You became aware, didn't you, that the subcontractor on site was All Tilt?---Yes. I had the safe work method statements and the workers compensation certificate of currency. I could have then checked them against the industrial records and then I would have known who I was dealing with. At no stage did I know until through evidence that was given in this room.

PN1456

But you had asked who the subcontractor on site was who was working, didn't you?---I knew that All Tilt were working on the job, yes. Well, I was told that.

PN1457

You assumed, didn't you, that Mr Kevin Crambrook and Mr David Carolan, who you've seen in these proceedings, and someone else working with them were working for All Tilt?---No, I did not assume that, under no circumstances. Their behaviour was totally shonky. Under no circumstances did I assume that.

PN1458

What do you mean by their behaviour was totally shonky, Mr Wyer?---Their whole attitude to supplying paperwork was, she's all right mate, nothing to do with you.

PN1459

I suggest to you that you became very angry with Kevin Crambrook because he said to you a number of times that as far as he was concerned he was allowed to work and they were going to continue work?---No, that's not correct.

PN1460

And that in response as part of that anger you stood very close to him and invaded the space that he needed to properly do what he was doing, that is, cut
mesh?---No.

PN1461

He said to you, I suggest, that "We're allowed to work. Anyway we're attending to safety issues, just leave us alone"?---I have read that in the statement. That could have been said to me, it might not have. It's so long ago I don't remember if that happened on the day or not.

PN1462

Then after he said that, or something to that effect, you said, I suggest, to Kevin Crambrook "You're bludging on the system"?---Again, I've read that and I don't know that I said that. I don't remember saying that.

PN1463

I suggest to you that Kevin Crambrook said to you "If you're calling me a bludger I'll have you in court for defamation."

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1464

MR PEARCE: The question was asked yesterday. I mean, is this some of a let's just keep asking the question and hopefully get a different answer, or something, wear the witness out? It's oppressive and I object to it.

PN1465

MR COLEMAN: This witness was not asked that question yesterday.

PN1466

THE DEPUTY INDUSTRIAL REGISTRAR: Your objection is noted, Mr Pearce, but I'll allow the question.

PN1467

MR COLEMAN: I suggest to you that Kevin Crambrook said "If you're calling me a bludger I'll have you in court for defamation"?---I'm not sure that I could answer that. It's very difficult to remember actually what happened and what was - and through the days that I've sat here and the statements that I've read, what was actually - on certain things it's difficult to remember where that fits, so I can't answer that, no.

PN1468

Do you believe that part of the difficulty in recalling what happened was because you were so very angry?---I wasn't so very angry. If I was going to get as angry as you think I wouldn't be able to do the job. I work on construction sites.

PN1469

You see, Mr Wyer, I suggest that you were determined that that site would close and - - -

PN1470

MR PEARCE: Registrar, that question has now been asked 12 times. I mean, this is really oppressive, and I object again, if only for the record.

PN1471

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, I don't think the question had actually been asked at that point in time. The preface that you're objecting to has probably been used numerous times, but I don't think Mr Coleman actually got his question out.

PN1472

MR PEARCE: I thought he had finished asking. Maybe we can have the transcript of that.

PN1473

MR COLEMAN: I suggest to you, Mr Wyer, that you went to that site determined to stop work that day because it was picnic day.

PN1474

MR PEARCE: Registrar, I object to that question, it's been asked many times. It's oppressive.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1475

THE DEPUTY INDUSTRIAL REGISTRAR: The question has been asked numerous times, Mr Coleman. I think it's probably been answered numerous times as well.

PN1476

MR COLEMAN: Yes, Registrar.

PN1477

Well, in response to Kevin Crambrook saying to you "If you're calling me a bludger I'll have you in court for defamation," I suggest you said "I'd love that, I'm in court every day"?---No.

PN1478

Do you recall Rebecca Anderson saying these words or words to this effect to you? You come here talking about picnic day, now you're trying to find safety issues to justify being here. Do you recall that?---No, I don't. It might have been her attitude, but no, I don't.

PN1479

So, again, it's something she might have said, you just don't recall whether or not it was said?

PN1480

MR PEARCE: That's an unfair question. Before he summarised the evidence of the witness. That was not the answer that he gave to the last question.

PN1481

THE DEPUTY INDUSTRIAL REGISTRAR: Please continue, Mr Coleman.

PN1482

MR COLEMAN: I asked you a question, Mr Wyer, as to whether you recalled, or what your response to the suggestion of whether Rebecca Anderson said these words. You came here talking about picnic day, now you're trying to find safety issues to justify being here. I understood you to say you could not recall?---Yes, I said that, yes.

PN1483

I'm just trying to ascertain or clarify that. Do you mean by that answer that it might have been said but you now can't recall one way or the other?---That was a long time ago, and I don't have legal training, I don't remember he said, she said. I remember incidents and things that happened, so no, I don't know whether that was the case, whether that was said or not.

PN1484

Do you recall saying words to the effect of, you've come here
illegally?---Again my answer is, no, I don't. I don't recall her saying that. I mean, I can go on to say if that was said my reply would have been, but no, it wasn't said.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1485

Do you recall being asked to leave the site?---No, I wasn't asked to leave the site.

PN1486

You say "I wasn't." Do you recall anything being said about Mr Glass being required to leave the site or asked to leave the site?---No, not leave the site.

PN1487

Well, something similar, do you recall something similar being said?---I think you have to be more specific than that.

PN1488

I'm asking you what your recollection is?---My recollection is that I went to a construction site that I don't think I even knew the name of, to deal with some minor safety issues in the consequence that there was three people working. It should have been a 15 minute call. And I'm here 18 months later for something that could have been dealt with in a tiny amount of time.

PN1489

Do you recall Rebecca Anderson at some stage saying she wouldn't deal with Mr Glass any more?---I recall - again, I've read the evidence. I recall something. I recall an explosion in argument, Rebecca shouting, swearing, but that's not the only time that that happened on that day.

PN1490

So you recall shouting and swearing you say. Do you recall her saying to you words to the effect of, I won't deal with him any more, referring to Mr Glass?

PN1491

MR PEARCE: Registrar, I object to that question. Recall when? Recall her saying when he read the statements, recall her evidence in the witness box when he was sitting in court? The proper question that should be asked here is, did she say it, although, of course, it's already been asked, but did she say it? These questions, do you recall it, they're of no assistance and they're unfair. I mean, my learned friend should at least say, if he wants to ask him to recall, do you recall on that day, absent reading the statements, absent hearing her evidence?

PN1492

THE DEPUTY INDUSTRIAL REGISTRAR: I must say, Mr Coleman, I was proceeding on the assumption that it was, do you recall on that day, and perhaps additional things, but I'm not sure that the witness would necessarily have assumed that.

PN1493

MR PEARCE: Yes. And, Registrar, I don't think the witness had, you know, I don't think that's any sort of an assumption that should be proceeded on, the way the questions were asked.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1494

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I accept that, Mr Pearce, in terms of asking the witness.

PN1495

MR COLEMAN: On 2 December 2003, on your second visit to the site, did you hear Rebecca Anderson say to you words to the effect of, I won't deal with him, referring to Mr Glass, any more?---Words to the effect of - there was something said.

PN1496

Have you got any recollection as to what prompted or what occurred immediately prior to that?---No, I don't.

PN1497

What's your recollection about a utility being parked on site, a utility vehicle?---I saw when I first drove on the site there was a couple of utes or a couple of cars parked on the site, on the right hand side of the site.

PN1498

Did you notice at any time stickers on the back windscreen of the
utility?---No, I hadn't.

PN1499

I suggest to you that you did, and you were present when Mr Glass pointed to that sticker, which was obvious from where you, Mr Glass, Rebecca Anderson and Mr O'Dwyer were, and that that sticker said "No fat chicks."

PN1500

MR PEARCE: I object to that question. It's again a double, triple barrel question. It's a question properly to say, is the question, did someone point to it? I mean, those questions need to be broken up, to be fair.

PN1501

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, I appreciate that a fair bit of that question was sort of context setting to get to the question that you wanted to ask, but I think it is presenting some difficulty given the number of persons who are involved and the various incidents that occurred through the day. So perhaps if you could be more specific.

PN1502

MR COLEMAN: Mr Wyer, I suggest to you that towards the end of the second visit, you, Rebecca Anderson, Mr O'Dwyer and Mr Glass were in close proximity to each other. Do you recall that being the case?---Yes.

PN1503

And that when you were in that position that Mr Glass pointed to a sticker on the back of a utility vehicle parked on the site which read "No fat chicks"?---No.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1504

I suggest to you that Mr Glass said to Rebecca Anderson words to the effect of, what's the matter with you, can't you read that? See that ute over there, that means you?---No, I didn't hear that.

PN1505

I suggest to you that it was immediately after that was said that Rebecca Anderson said to you she wouldn't deal with Mr Glass any more?---Do you want me to answer that?

PN1506

Yes?---I don't know that that's the case. As I said, I have never even seen a sticker, I didn't hear a conversation like that. I've read it in the evidence and I've heard it in the evidence, but no, so I can't - I'd say no to that. I can't answer that anything caused Rebecca to say that, I don't know.

PN1507

You agree with me she told you she wouldn't deal with Glass any more. Do you have any recollection as to what prompted that?---No.

PN1508

I suggest to you it was immediately after the reference to the no fat chicks sticker?---I don't know that.

PN1509

Do you recall in any conversation during your second visit on 1 December 2003 any reference to WorkCover?---I have to say I've read it. Again, I'm not sure of that. I can't say yes or no to that.

PN1510

I suggest to you that in response to your or Mr Glass' suggestion that there were safety issues on site, Rebecca Anderson said, well, get WorkCover over here, I'll do exactly what they tell me to do?---I don't remember her saying that but she could have. It could have been one of the things that happened.

PN1511

I suggest to you that in response to that you said words to the effect of, I am WorkCover, I have the same power of WorkCover?---No, I didn't say that.

PN1512

You were asked to leave the site a number of times, weren't you?---No, I don't think I was asked to leave the site.

PN1513

When you say you don't think you were, you're not sure?---If I was - no, I wasn't asked to leave the site to the best of my recollection.

PN1514

You said - this is towards the end of the second visit - that you were going to destroy All Tilt?---No.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1515

And you said "All Tilt are bludgers on the system and I'll dob them into
tax"?---No.

PN1516

MR PEARCE: Registrar, this question was asked yesterday too.

PN1517

THE DEPUTY INDUSTRIAL REGISTRAR: I'll allow the question,
Mr Coleman, keep going.

PN1518

MR COLEMAN: And you said words to the effect of, I'll go through all your books and make life difficult?---No.

PN1519

Again Rebecca Anderson said words to the effect of, you've got no right to be on the site, if there's a safety problem get WorkCover out?---No, I don't remember those words. I do have a right to be on site.

PN1520

I'm not asking you about that, I'm asking you as to whether you recall that conversation.

PN1521

MR PEARCE: Well, I object to this constant recall the conversation. The proper way to put the question is, did it occur? Because you've got the same problem over and over again about what does it - you know, the issue I raised some time ago about recall now or recall having read things, recall someone saying. And I thought my learned friend was trying to put the question in the other way, with respect to him, and he just drifted back.

PN1522

MR COLEMAN: After Rebecca Anderson told you that she wouldn't deal with Mr Glass any more, what happened after that?

PN1523

MR PEARCE: Well, I object to that question because the evidence of the witness is that that wasn't said, as I recall it.

PN1524

MR COLEMAN: The evidence of the witness in his statement and oral evidence in cross-examination is that something to that effect was said.

PN1525

MR PEARCE: Well, I withdraw the objection?---You have to ask me specific questions. To recall what happened after that is, you know.

PN1526

MR COLEMAN: Well, do you remember that Mr Glass went back to the car before you?---We were right beside the car. I don't recall David going anywhere.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1527

Did you hear Mr O'Dwyer say to Mr Glass words to the effect of, just settle down, take it easy?---No, I didn't.

PN1528

After Rebecca Anderson said to you that she wouldn't deal with Glass any more, you said words to the effect of, he's got a right to be here?---I could have said that.

PN1529

You said, he'll come and go as he pleases?---No, I wouldn't say - I don't think that would be the words that I'd use.

PN1530

You don't think they're the sort of words you would use, but you don't recall whether or not they were said on this day?---To remember the words that I said 18 months ago in an incident, when I go onto sites three times a day, is nigh on impossible in most things, so I'm trying to answer as fairly as I can.

PN1531

I suggest to you that you then said to her these words or words to this effect, you brought that on yourself, you should not expect to work in a man's world and get treated differently?---No, I didn't say those words.

PN1532

You said words to the effect of, if you were a man you would not have reacted that way?---They're not my words, no.

PN1533

I suggest to you, you then said words to the effect of, men don't carry on like that, a man would be more reasonable?---No, I didn't say those words, no.

PN1534

Then I suggest you said, if you were a man in a pub you would have had your head bashed in?---No, I definitely didn't say those words.

PN1535

Have you got any recollection of Mr Glass making a telephone call from the site during the second visit?---Probably not.

PN1536

I concentrate on the person I'm talking to. Again, I'd be having a stab in the dark if I answered in the affirmative to that.

PN1537

As you were leaving you made mention, didn't you, that the next day was a rostered day off in the industry?---I can't answer that.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1538

You said you'd be back the next day?---I think I did say that I'd be back, yes.

PN1539

But you never did come back, did you?---No, I didn't, no.

PN1540

Towards the end of the second visit you pointed to where Mr Kevin Crambrook, Mr David Toll and another person were working and you said words to this effect, they'll regret this?---No.

PN1541

I want all their fucking paperwork?---No. I would have asked for specifics.

PN1542

I suggest you then said, they'll end up owing hundreds of thousands of dollars when I've finished with them?---No.

PN1543

You have your statement there in the witness box with you?---Yes.

PN1544

Would you turn to page 3. Do you see about halfway down the page in italics are the words "They are not wearing their PPU"?---Yes.

PN1545

I suggest that you didn't say those words?---Words to that effect.

PN1546

You say you did, do you?---Yes.

PN1547

At the bottom of the page you quote yourself as saying "There is no protection at the back of this site to stop man or material falling into the neighbour's yard, this is unsafe." I suggest to you, you didn't say that to anyone at any time?---No. I said that. That was one of the risks.

PN1548

Turning over the page to page 4, about a quarter of the way down you quote Mr O'Dwyer as saying to the people working on site "Could you stop work." I suggest to you that was never said by Mr O'Dwyer?---No. He definitely said that.

PN1549

No words to that effect or anything that could be understood to be to that effect was said by him?---No. He did say that.

PN1550

In fact, I suggest to you that the work did stop in response to your direction to those people that they should stop work and leave.

PN1551

MR PEARCE: That's been put now about 15 times, Registrar. It's just becoming oppressive.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1552

THE DEPUTY INDUSTRIAL REGISTRAR: I'll allow it on this occasion, Mr Coleman?---I'd like to go into that a little bit. Whenever the union goes on to a site and the safety committee recommends that an area is closed down, and the management closes down the area, you speak to people on the site. They say the union closed the site down. That's not what actually happened, and that's exactly the circumstances here.

PN1553

MR COLEMAN: Well, it had nothing to do with safety, Mr Wyer, I suggest to you. I suggest to you, you said "It's picnic day, no one should be working, stop work, leave the site."

PN1554

MR PEARCE: I object to that question. I don't know how many times that position has been put. It's repetitive and it's oppressive.

PN1555

THE DEPUTY INDUSTRIAL REGISTRAR: I'll allow it on this occasion, Mr Coleman?---No, I didn't say that. I spoke to the foreman, I pointed out issues. He took the appropriate action.

PN1556

MR COLEMAN: Towards the bottom of page 4 you say that you said these words, "How come you are working today on picnic day"?---To the foreman, yes.

PN1557

You quote him as saying words to the effect of, I don't know, I don't normally work on picnic day but I was instructed to work by my manager. I suggest to you that you didn't say those words and he didn't reply in that way?---That's very clear. They're very clear, those words. The first section of the whole thing is clear because it's straightforward.

PN1558

Would you turn over to page 7, and can you see there in paragraph 15 you're referring to your telephone conversation with Rebecca Anderson on your first visit, do you see that?---Yes.

PN1559

You set out there towards the middle of the page these words:

PN1560

I'm here under the Occupational Health and Safety Act, and you have made safety breaches that need addressing.

PN1561

?---Yes.

PN1562

I suggest to you that you didn't say that to her on the telephone at all?---I did say that, or words to that effect.

**** MARTIN RONALD WYER XXN MR COLEMAN
PN1563

Would you turn to page 9 of your statement. Just read to yourself the quote in italics in the middle of the page "You are in breach," and the following words. I suggest to you that yo didn't say that?---Words to that effect.

PN1564

If you turn to page 16 please, Mr Wyer. Just read paragraph 53 to
yourself?---Yes.

PN1565

You make reference there to debate or discussion about the operation of the state award. What led you to believe you were discussing the state award?---It hadn't been established what coverage, you know, what they were covered by. But it could have been the fact that there was a state award. I think it ended up being a state award, but at that time I didn't think that they had an enterprise agreement, I didn't think they had contacts with the Master Builders, so the chances were that they could have been covering up their state award.

PN1566

There was no mention by any of the people you spoke to on the site about the state award, was there, using that terminology?---Probably not, no.

PN1567

I suggest to you there was talk of the award, but that was the extent of it?---I can't remember that.

PN1568

Would you turn over to page 21 of your statement. In paragraph 83 you deny certain things, you disagree, and then you say you heard Mr Glass say these words. "It is union picnic day today, it's unusual for you to be working, isn't it?" I suggest to you that you didn't hear Mr Glass say those words or anything like
it?---Something like that.

PN1569

Just excuse me a moment. Thank you, Registrar.

PN1570

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, is your re-examination going to take very long?

PN1571

MR PEARCE: It won't be long.

<RE-EXAMINATION BY MR PEARCE [12.05PM]

PN1572

MR PEARCE: Mr Wyer, you gave evidence, to quote you:

PN1573

In my experience lots of site that work on picnic day have pathetic health and safety.

**** MARTIN RONALD WYER RXN MR PEARCE
PN1574

Do you recall that?---Yes.

PN1575

What experience were you referring to there?---If a site, organised sites abide by the relevant legislation, so sites that are working, therefore they work safely. Lots of sites that don't have an understanding of any of the legislative requirements, whether they be safety or whatever.

PN1576

Is that your evidence, that they're the sort of sites that tend to work on picnic days?---They are.

PN1577

MR COLEMAN: I would ask that Mr Pearce - that last question was a leading question, I'd ask him not to lead the witness in re-examination.

PN1578

MR PEARCE: Well, I'll rephrase it.

PN1579

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr Pearce.

PN1580

MR PEARCE: Is it your evidence - - -

PN1581

MR COLEMAN: My question isn't to the previous question and answer, it's simply for the future questions.

PN1582

MR PEARCE: You referred to two deaths on building sites in the period immediately prior to 1 December 2003, do you recall that?---I do.

PN1583

Where were they?---North Bondi, David Hand died, and over the hill, just over the hill further another man died, and both those incidents were on things that you wouldn't expect to be killed by. One man fell one floor and one man had a brick hit him in the head from a wall that was 2.2 metres high.

PN1584

Do you recall when in 2003 each of those incidents occurred?---I am not certain but like halfway through the year. If I'm guessing, maybe April was the first death, and then a couple of months after that, a little bit longer than that.

PN1585

Did the Building Industry Task Force do anything about those deaths?---The Building Industry Task Force is not interested in the welfare of construction workers.

PN1586

You gave evidence that you started to prepare your statement in these proceedings after you received all the statements of the task force's witnesses?---Yes.

**** MARTIN RONALD WYER RXN MR PEARCE
PN1587

At that time - sorry, was that statement your best recollection of events at that time?---It was. It was put in response from what the statement was, what my response to that was, and I gave it my best shot as he said, she says, in that way rather than the way that I would normally do that.

PN1588

Now, has your recollection of events on 1 December 2003 got better or worse since the time you prepared that statement?---It's very confusing now to try and remember what actually happened, what I read in statements, what I actually - the words that were said rather than the actual actions. The actions are easier to remember, but the words are a lot difficult because I've heard so much.

PN1589

But has your recollection got better or worse since the time you made that
first - - - ?---It's worse.

PN1590

When you say it's got worse, how much do you now recall as you sit in the witness box, putting aside all the evidence you've heard in these proceedings and the statement you've read, how much do you now recall of the events on that day of 1 December 2003 - 2 December - 1 December 2003?---I remember the first part of simply driving onto a construction site at least three times a day, and just doing a safety walk, a straightforward safety walk. That's all commonplace and clear. As my first response when I read it, I remember saying I didn't do that, or that's not the way, you know, no way in the world I said that. But after Rebecca turned up there's a lot went on then and that's - it's difficult to remember exactly what was said, by what someone said and I said, it is difficult.

PN1591

Thank you.

PN1592

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Wyer, you're excused, thank you.

<THE WITNESS WITHDREW [12.10PM]

PN1593

MR PEARCE: Registrar, Ms Siciliano has left, but I wanted to call her.

PN1594

THE DEPUTY INDUSTRIAL REGISTRAR: For the purpose of?

PN1595

MR PEARCE: Well, I don't know. Does my learned friend rely on the application that she's made? I want to cross-examine her. I must say, I didn't notice her going, Registrar.

PN1596

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, are you referring to the document filed seeking to be substituted as the applicant?

PN1597

MR PEARCE: Yes, I wanted to. She wasn't called on the previous occasion because she wasn't the applicant at that time. I just assumed my learned friend would be calling her.

PN1598

MR COLEMAN: For the purposes of what?

PN1599

MR PEARCE: As it were, being able to tender.

PN1600

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, is it your intention to call Julietta Siciliano?

PN1601

MR COLEMAN: No. Nor has there been any discussion between the parties on any related subject matter.

PN1602

MR PEARCE: Well, I wish to call her, Registrar.

PN1603

MR COLEMAN: Registrar, there were directions made in this matter some weeks ago, and it was indicated by the respondent's representative that the evidence that the respondent wished to rely on was limited to the two statements that were filed and have now been cross-examined on. There was a specific reference as to whether that was the totality of the union's evidence, and the response to that was yes. And Ms Siciliano was the applicant on the record at that time.

PN1604

This subject matter of her being called in the respondent's case was not raised, hasn't been raised until about two minutes ago, and it would be in breach of the directions that were made and the assurances, given the last directions hearing, that that was the extent of the respondent's evidence. So I think that application that's now made to call further evidence in the respondent's case, in my submission shouldn't be allowed.

PN1605

MR PEARCE: Well, in those circumstances if he doesn't call her I object to - it hasn't been marked as an exhibit and I object to you having any reliance on her statement that she's an investigator for the Building Industry Task Force. It's really a matter for my learned friend. If he doesn't want to prove that matter, it's a matter for him. And I don't think there's been any doubt about this, that we put in question the whole purpose of these proceedings on the part of the persons who initiated it for a proper purpose, and Mr Glass was cross-examined on that basis.

PN1606

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, if you wish to challenge, or wish to cross-examine Ms Siciliano in relation to her holding an appointment as an inspector, et cetera, wasn't the appropriate time to do that at the time which I considered that application and made a ruling?

PN1607

MR PEARCE: No, Registrar. The appropriate time to do it is when it's sought to rely on that document, on the evidence, and it's in the applicant's case. It would simply be a denial of natural justice not to allow it. I want to cross-examine her more broadly than that, of course. It would simply be a denial of natural justice not to allow to cross-examine her. I might say I don't know what the task force has to hide.

PN1608

THE DEPUTY INDUSTRIAL REGISTRAR: I must say I'm not quite sure where to go with all of that, Mr Pearce. Mr Coleman, do you have anything further to say? As I understand it, it's not the intention of the applicant to call Ms Siciliano.

PN1609

MR COLEMAN: It's certainly not my intention, and the applicant's case closed last year.

PN1610

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, you're pressing the request to call Ms Siciliano as a witness?

PN1611

MR PEARCE: No. I wish to cross-examine her about her statement, although as I said, it's not - - -

PN1612

THE DEPUTY INDUSTRIAL REGISTRAR: It's not actually a statement though.

PN1613

MR PEARCE: But it says "I am an investigator." It's signed by her.

PN1614

THE DEPUTY INDUSTRIAL REGISTRAR: In the application to be substituted?

PN1615

MR PEARCE: Yes.

PN1616

THE DEPUTY INDUSTRIAL REGISTRAR: Doesn't that go to my earlier point though, Mr Pearce, that this application was filed in November, it was the subject of a ruling on transcript by me, which is then subject to appeal. It's not a statement for the purposes of evidence in these proceedings. It was an application which was granted and on appeal the appeal hadn't been dismissed, the application has remained granted.

PN1617

MR PEARCE: Well, if it's not evidence in the proceedings I'm happy with that, because you have no evidence that she is an inspector. I'm happy to proceed that way, and the decision will follow in due course. If my learned friend doesn't want to put that material into evidence and give me the opportunity to cross-examine her, that's his risk. But there's no evidence presently before you that she is an inspector.

PN1618

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I accept the point you're making, Mr Pearce. But what I'm raising is, this point certainly not having occurred - and when I say accept I mean I understand the point you're making, that that point not having occurred to me at the time when I considered this application, and certainly not having been raised at the time that the respondents were given the opportunity to make submissions in relation to this application, I'm not sure in terms of the principles of natural justice what the basis upon which me now revisiting that would be.

PN1619

MR PEARCE: Well, it only raises when my learned friend seeks to put it in evidence, and he hasn't. I must say, I just assumed that he was going to put in evidence the evidence that she was an inspector. But if he doesn't want to, then there will be no evidence that she was an inspector, and that will be the end of the matter I guess.

PN1620

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Coleman, anything further?

PN1621

MR COLEMAN: No. Except with respect to fully agreeing with what you said, Registrar, that this matter was fully dealt with here and on appeal, and in my opinion there's a valid application. But if Mr Pearce wants to make a submission in the general proceedings that there's not, then that's something we'll meet. But I certainly don't intend to call any further evidence, or seek to.

PN1622

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, it has to be - well, I don't know if it has to be, but look, it was certainly my - at the one at which I granted leave for the applicant to be substituted and without this issue having been raised, I perhaps, and in retrospect maybe somewhat naively had accepted in the absence of challenge, on face value, that the applicant was a valid inspector, particularly having regard to the fact in my written decision which preceded this application I had made clear that that was, if you like, a condition precedent to my even considering an application to substitute.

PN1623

MR PEARCE: The point has not been dealt with in any of the proceedings before you or on the question as to whether she is an inspector or not, because the evidence hadn't been given at that point in time.

PN1624

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I understand the point you're making, Mr Pearce.

PN1625

MR PEARCE: If my learned friend doesn't propose to tender the document, I make application now for the application to be dismissed on the basis that there's no evidence that it's been taken by a person who can make the application. It would save us all a lot of trouble.

PN1626

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, I'm not prepared to deal with that application on transcript today. It's my view that the course of action is for us to proceed to determine the finality of the submissions, et cetera, in order to conclude this matter and if, as part of that process you wish to make such an application or incorporate within your submissions that submission, I think that that would be a preferable course, given the history and point at which we've reached today.

PN1627

MR PEARCE: Well, Registrar, can I ask you to rule on whether you, as to the state of evidence, because if you rule that somehow or other this has become evidence, then it may affect what I wish to do next. I can't see how it's become evidence.

PN1628

THE DEPUTY INDUSTRIAL REGISTRAR: It certainly does not appear and has not been admitted to evidence as an exhibit in these proceedings.

PN1629

MR PEARCE: Thank you.

PN1630

THE DEPUTY INDUSTRIAL REGISTRAR: When I say it has not been admitted, I'm referring to the application seeking leave to amend the current application signed by Ms Siciliano and filed on 10 December 2004.

PN1631

MR PEARCE: I was also referring to the document that was annexed to it.

PN1632

THE DEPUTY INDUSTRIAL REGISTRAR: Yes. Including the document annexed to it, GS1. We might go off the record for a moment please.

OFF THE RECORD

PN1633

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce?

PN1634

MR PEARCE: Registrar, I tender the state award. It's not, strictly speaking, necessary to tender it because it's a document we can have regard to, but it's much more convenient.

EXHIBIT #R19 STATE AWARD

PN1635

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Mr Pearce, could you just bear with me for one moment. Thank you.

PN1636

MR PEARCE: Registrar, I don't know whether these are appropriate for tender, but I intend to rely on them. I've extracted from the New South Wales, the service in relation to New South Wales, the provisions and commentary on entry and inspection by officers under the state Act, and provide that to you. Perhaps I'll deal with all of these in one hit. I've extracted the provisions from the Occupational Health and Safety Act that deal with right of entry, and this is the state Act, of course, section 80, and I've extracted provisions from the Workers Compensation Act, section 20, that deal with the requirement to have workers compensation insurance, section 155 of the Workers Compensation Act, that deal with the requirement for compulsory insurance.

PN1637

I've got a spare copy for the task force, they might want to read that. I've extracted - and they're really contextual - relevantly section 163A, that gives authorised industrial officers under the state Act certain rights in relation to what they may request from an employer, to paraphrase it, it gives them rights to request and employer's certificate of currency in relation to workers compensation, which is of course what, on any version of events, occurred on the site on that day. I just provide those to you. They're really statutory documents. It may be convenient to mark them so they're not lost, but they're just extracts of relevant legislation that we'll be referring to.

PN1638

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Pearce, you're tendering these as an exhibit?

PN1639

MR PEARCE: It's entirely a matter for you. They're extracts. I think I suggest they might be marked as an exhibit, otherwise they get lost from the record. But that's really a matter for you.

PN1640

MR COLEMAN: Strictly speaking, Registrar, these documents aren't really evidence in the case, they're statutes, and in some cases comments by authors on the statute.

PN1641

MR PEARCE: Yes, I accept.

PN1642

MR COLEMAN: I certainly have no difficulty with Mr Pearce handing them up and, indeed, he may wish to refer to them in submissions, but they're not strictly evidence and, in my submission, shouldn't be marked as exhibits.

PN1643

THE DEPUTY INDUSTRIAL REGISTRAR: I think the simplest way is to mark these documents for identification.

MFI #3 EXTRACTS FROM STATUTES

PN1644

MR PEARCE: Finally, Registrar, yesterday I referred to a decision in the Federal Court, it's Pine v Seelite Windows and Doors. I think in fairness to the task force, I think I described it as a judge describing what they had done as trivial and vexatious. I think I'm re-reading it, but that was someone else's gloss on it. What the judge said in the circumstances, this action is much ado about nothing. But I just provide that, and we'll be making some submissions in due course about it. I haven't given my learned friend a copy, but I'm sure those instructing him are very well aware of it.

MFI #4 DECISION RE PINE V SEELITE WINDOWS AND DOORS

PN1645

MR PEARCE: That closes our case, Registrar.

PN1646

THE DEPUTY INDUSTRIAL REGISTRAR: We might go off the record for a moment, thank you.

<OFF THE RECORD

PN1647

THE DEPUTY INDUSTRIAL REGISTRAR: For the purposes of concluding submissions on this matter, the applicant to file their submissions by Friday, 13 May 2005, the respondents will file their final submissions by Tuesday, 31 May, and the applicant to file any submissions in reply by Tuesday, 14 June. The hearing that's currently listed for 10 June will be vacated and relisted for Friday, 17 June. On that basis this matter now stands adjourned.

<ADJOURNED UNTIL FRIDAY, 17 JUNE 2005 [12.39PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R17 GROUP CERTIFICATES PN1158
EXHIBIT #R18 CERTIFICATE OF REGISTRATION OF CFMEU NEW SOUTH WALES DIVISIONAL BRANCH PN1174
EXHIBIT #A15 SUMMONS TO WITNESS ADDRESSSED TO SECRETARY CFMEU, CONSTRUCTION GENERAL DIVISION, NSW DIVISIONAL BRANCH PN1220
EXHIBIT #A16 LETTER TO RITA MALLIA DATED 15/04/2005 PN1220
MARTIN RONALD WYER, RECALLED ON FORMER OATH PN1233
CROSS-EXAMINATION BY MR COLEMAN PN1233
THE WITNESS WITHDREW PN1241
MARTIN RONALD WYER, ON FORMER OATH PN1248
CROSS-EXAMINATION BY MR COLEMAN, CONTINUING PN1248
THE WITNESS WITHDREW PN1266
MARTIN RONALD WYER, ON FORMER OATH PN1297
CROSS-EXAMINATION BY MR COLEMAN, CONTINUING PN1297
THE WITNESS WITHDREW PN1340
MARTIN RONALD WYER, ON FORMER OATH PN1360
CROSS-EXAMINATION BY MR COLEMAN, CONTINUING PN1360
RE-EXAMINATION BY MR PEARCE PN1571
THE WITNESS WITHDREW PN1592
EXHIBIT #R19 STATE AWARD PN1634
MFI #3 EXTRACTS FROM STATUTES PN1643
MFI #4 DECISION RE PINE V SEELITE WINDOWS AND DOORS PN1644