C2004/6590, Transcript of Proceedings [2005] AIRCTrans 1275 (9 June 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11784-1

COMMISSIONER CARGILL

C2004/6590

APPLICATION BY AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.111(1)(f) - Appln to revoke award etc
(C2004/6590)

SYDNEY

10.03AM, THURSDAY, 26 MAY 2005

Continued from 13/4/2005

Reserved for Decision

PN1147
THE COMMISSIONER: Can I have any changes in appearance please?
PN1148
MR J PHILIPS: I seek leave to appear as counsel and seek leave to appear on behalf of Macquarie Generation.
PN1149
THE COMMISSIONER: Thank you. Perhaps Mr Gee, I know it's not your application it is actually the union's, but first of all do you have any objection to Mr Philips being given leave as counsel and more importantly perhaps being given leave to intervene?
PN1150
MR B GEE: No objection, Commissioner.
PN1151
MR I MORRISON: I might firstly say while I do not have an objection why it is ..... Mr Philips as to the purpose of why he seeks to intervene in this matter before, I would say my position on this application.
PN1152
THE COMMISSIONER: Mr Tanner?
PN1153
MR C TANNER: I associate myself with Mr Morrison's comments.
PN1154
THE COMMISSIONER: Right. Could I take it that there would be no opposition to him being given leave as counsel or perhaps there will be some opposition on your part Mr Morrison, to that as well will there?
PN1155
MR MORRISON: Yes. If it was made clear.
PN1156
THE COMMISSIONER: Sorry? No, there is two grounds on which he is seeking leave, one is as counsel, is there any opposition to that?
PN1157
MR MORRISON: No.
PN1158
THE COMMISSIONER: Well perhaps Mr Philips I can give you leave as counsel to appear and perhaps you could provide some outline of the basis on which you seek leave to intervene and then we will hear from the two gentlemen at this end of the Bar table as to whether they oppose your intervention.
PN1159
MR PHILIPS: Yes, thank you Commissioner. The reason why we do seek leave for Macquarie Generation to appear is that one of its employees has been subpoenaed to give evidence today.
PN1160
THE COMMISSIONER: Right.
PN1161
MR PHILIPS: A senior employee of Macquarie Generation and clearly we would like to protect his interest and our own interest in relation to anything which may be asked of him insofar as it affects him personally and affects Macquarie Generation. The other matter of course is that the subject of the section 127 orders and in turn the application to revoke those orders related to our premises. The alleged industrial action took place at both the Liddell and Bayswater power stations, which we own. It took place in relation to a contractor we hired to be there. It related to maintenance work on our plant equipment, that maintenance work was delayed as a result of the cessation of work. It cost us a lot of money and we would obviously like to be making sure that our interests insofar as they might be touched on, are protected.
PN1162
The other matter of course, was the allegation related to occupational health and safety issues which we as an organisation, I am instructed, take very seriously and we say that insofar as any matter related to our behaviour on that occasion or occasions, we took every attempt to allay any fears which may have been engendered by events in early or mid October and we say that by the time the matters had settled down that any danger or any apprehension of danger was gone.
PN1163
So it is in effect just to protect our own interest, because we have had a chance to have a look at the transcript of these proceedings and clearly there are some matters there where we are either referred to or Mr Sevell is referred to. Now the fact he has been called to give evidence, that is a matter which we say it does touch upon our interests and insofar as we are referred to we wish to protect those interests.
PN1164
THE COMMISSIONER: Could I just ask at this stage, other than Mr Sevell who has been summonsed to in fact give evidence, will you if you are given leave to intervene, would you be seeking to call any evidence of your own?
PN1165
MR PHILIPS: No.
PN1166
THE COMMISSIONER: Right, thank you. Mr Tanner?
PN1167
MR TANNER: I have the same enquiry, Commissioner, and that is does Mr Philips propose to address you in relation to the issues in dispute here? In other words will there be submissions on behalf of Macquarie Generation as to whether the Union should succeed with this application or not. In that sense my enquiry is as to whether he has a substantive intervention or whether his role here is essentially as an observer?
PN1168
MR PHILIPS: The main reason I am here is to protect our own interests and Mr Sevell insofar as he needs protection. Secondly we say in relation to the enquiries as to whether or not we are neutral about the matter, well we are not neutral, as far as we were concerned the actions which took place in October of last year was industrial action. We could see no good reason why the section 127 orders ought to be revoked. But in relation to that particular matter as far as any submissions, we would make that very brief and would not delay the hearing of this case.
PN1169
We really wish to make a few comments about that, obviously the ..... of the case rests with those people who represent HIS Engineering. But we clearly do not support the revocation of the order because as far as we are concerned the revocation of the order has no utility, it being a matter which has passed. As I understand it there is no suggestion either way, HIS Engineering or ourselves, that the order was breached. So as a consequence we just can't see any utility in having the order revoked.
PN1170
THE COMMISSIONER: Does that answer your question Mr Tanner?
PN1171
MR TANNER: It explains the position which is to be adopted by Macquarie Generation and will be the subject of why both Mr Morrison and I were to say to about whether leave should be given to them to intervene.
PN1172
THE COMMISSIONER: Did you want to have some discussion between yourselves as to what your position is? As I understand it you both wanted to wait until - - -
PN1173
MR TANNER: I do not think it is necessary but as Mr Morrison is representing the AMWU, who is the principal applicant in these proceedings I believe he should commence with whatever he has to say.
PN1174
THE COMMISSIONER: Right, okay.
PN1175
MR MORRISON: On the basis of what Mr Philips has said we do oppose his appearance here today. If it was to merely protect the interest and merit of the employee of Macquarie Generation, then we could see some basis for that, but on what Mr Philips has clearly put to the Commission, we say that we do oppose his appearance.
PN1176
THE COMMISSIONER: So you would not object if it was restricted to - - -
PN1177
MR MORRISON: To protecting the interests of an employee of Macquarie Generation.
PN1178
THE COMMISSIONER: Mr Sevell?
PN1179
MR MORRISON: Yes.
PN1180
THE COMMISSIONER: And his client as well? Being Macquarie Generation?
PN1181
MR MORRISON: Macquarie Generation in that an employee of Macquarie Generation is to be called as a witness. That would be the limit obviously, I would say, of his participation in this.
PN1182
THE COMMISSIONER: Mr Tanner?
PN1183
MR TANNER: Commissioner, Macquarie Generation have had the opportunity to intervene in this matter from the outset. Here we are, I think this is day 3 of an application which is being brought by the unions for revocation and it is frankly absurd at this late hour for them to become involved. As we have heard from
Mr Philips, to believe that they should become involved at the level where they address you directly on the substantive issues. If the role of Mr Philips were merely here to look after the interests of his clients, that is Macquarie Generation and of certain of the officials of the company, that involvement would relate to ensuring that in the matter in which those witnesses were questioned and there was no prejudice being cited by the company and those witnesses.
PN1184
In fact when Mr Philips arrived today and explained his purpose, I said in a jocular way, "So you are here to see fair play?" and he responded, "That was the effect". I have no difficulty with his performing that role, in seeing fair play and ensuring that neither Mr Morrison nor I, or Mr Gee for that matter, conducts the affairs of our respective clients in a manner which would offend the legitimate interests of Macquarie Generation. But for Mr Philips to take it to the next stage and basically climbing on board the company's case is inappropriate, it leaves him to make submissions without having participated from the outset, having developed the evidence on which those submissions should be based and that leaves us having to deal with an intervention which was not anticipated and which must be to the prejudice of the applicants and the manner in which this matter has being conducted to date.
PN1185
THE COMMISSIONER: Mr Philips did you want to say anything?
PN1186
MR PHILIPS: I have nothing further to say.
PN1187
THE COMMISSIONER: Right. Yes look I think that what I am going to do is give you leave to intervene but only insofar as you protect the interests of your client and Mr Sevell. I am not going to allow you to intervene for a further purpose as has already been mentioned, your client had the opportunity to seek to intervene earlier in these proceedings, they have certainly been going for long enough. In fact I think at some stage earlier on at least some parties, if not myself, perhaps indicated that perhaps the presence of your client might have been useful. But nothing happened until today, so I think it is a bit late in the day to actually seek to intervene in a more substantial way. But certainly I will allow you to intervene to protect the interests of both your client and Mr Sevell.
PN1188
MR PHILIPS: Yes, thank you. May it please the Commission.
PN1189
THE COMMISSIONER: Thank you. Now I gather that from this appearance sheet that not only do we have the three persons whom you have had summonsed Mr Gee, but we also have a further witness from your side of the table Mr Morrison?
PN1190
MR MORRISON: Yes we would be intending to call Mr Scott Purviss, in rebuttal to the evidence given on 13 April by Mr Dixon, where he specifically makes mention of the actions of Mr Purviss. Taylor sorry, not Mr Dixon, Mr Taylor.
PN1191
THE COMMISSIONER: I know it is a few weeks but I could not recall Mr Dixon. I was thinking maybe this has been going on for far too long.
PN1192
MR MORRISON: No.
PN1193
THE COMMISSIONER: Right, Mr Gee do you have any difficulty with that?
PN1194
MR GEE: Yes I do, Commissioner.
PN1195
THE COMMISSIONER: We can deal with that, yes?
PN1196
MR GEE: On the same basis that my friends objected to the intervention of my learned colleague Mr Philips on a wider basis I will object to Mr Purviss appearing as a witness in these proceedings, that we have had no notice of that. On the last occasion we gave notice to the Commission and the parties of our intention at that stage to investigate the calling of Mr Sevell and Mr Knott, that was confirmed with an appropriate amount of notice and the summons was issued. Accordingly we simply have no notice that Mr Purviss was being called, it is prejudicial and on the same basis that my friends complain about, the appearance of Mr Philips in anything, in a sense I complain about the introduction of Mr Purviss as a witness at this late stage.
PN1197
THE COMMISSIONER: Surely they are different issues thought Mr Gee, I mean in the case of Mr Philips it is an issue of whether there should be some other party introduced into the proceedings. In the case of Mr Purviss, it is a question of whether one party should be allowed to call an extra witness.
PN1198
MR GEE: I accept that that is an appropriate description of what is being sought. But on the basis of notice at the very least it is an objection that we say ought to be upheld. Given the way in which we have singled our intention to call witnesses at a future date, it is inappropriate to allow the Union to spring a surprise like this on us at this late stage. To be fair, Mr Tanner put me on notice late last week, if I am not mistaken, that they may seek leave to call an additional witness, unnamed for an unknown purpose. I am now aware that it is Mr Purviss and I am now aware of the purpose, not had any prior notice of that. If the Commission pleases.
PN1199
MR TANNER: May I address you, Commissioner? The arguments about notice is merely one that related to convenience. If my friend is taken by surprise, his remedy is to take time to deal with that surprise. There is in fact no surprise, Mr Purviss will be testifying about a single incident, and that is the nature of the discussions between Mr Taylor, Mr Mudford and Mr Purviss.
PN1200
THE COMMISSIONER: Yes, he has known - - -
PN1201
MR TANNER: We are not introducing anything new, it is corroborative in value. Insofar as my friend believes that he has been disadvantaged by Mr Purviss being called, I would have no objection to his seeking to recall Mr Taylor to traverse anything which might arise from either the leading of Mr Purviss or the cross-examination of him. But in that sense I can't conceive of any prejudice to my friend and his client.
PN1202
THE COMMISSIONER: Right, yes Mr Gee?
PN1203
MR GEE: If that is the sole purpose for which Mr Purviss is to be called may I suggest that it might be appropriate for the Commissioner to deal with it this way; Mr Mudford has put into evidence a conversation he alleges took place, Mr Taylor has denied that that conversation took place. On The evidence that is the conversation, the evidence is that the existence of that conversation and what was said is at issue. That position will be taken no further in the event Mr Purviss gives evidence because all he will be doing is corroborating Mr Mudford's version of events. It remains evidence that will be in contest. The Commission can take that on notice that that will be the outcome of Mr Purviss, should he be called to give evidence in any event.
PN1204
THE COMMISSIONER: But Mr Gee maybe something Mr Purviss says in evidence might, I do not know I am not saying change, but spark a memory with Mr Taylor. I do not know, I mean certainly obviously it would be only reasonable that he be allowed to be recalled.
PN1205
MR GEE: I am in the Commission's hands if Mr Purviss is called in, of course we will reserve our rights to do so, but I mean I do not see the utility in going down path if that is the sole purpose for him giving evidence.
PN1206
THE COMMISSIONER: Right, well you are pressing calling him I presume Mr Morrison?
PN1207
MR MORRISON: Yes, we are commissioner.
PN1208
THE COMMISSIONER: Right. Well I will allow him to be called on the basis that it will be dealing with just that incident. Certainly his name was mentioned several times during the evidence on the last occasion and so I can understand that. Then Mr Gee obviously if you wish to recall Mr Taylor in relation to that that is fine. I am just wondering, have you gentlemen given any consideration as to what you - you know, in other words do we go ahead with Mr Gee's witnesses first or do you want to attend to Mr Purviss? I mean I do not mind, given that we are out of the Union's evidence.
PN1209
MR MORRISON: We seem to be in the unanimity that Mr Gee proceed with his witnesses, I have to confess Mr Purviss is at the moment with my organiser, neither of them are here yet. So it suits everyone's purposes.
PN1210
THE COMMISSIONER: Well maybe I will insist on him going next. No I think it is only reasonable. Your witnesses are here I gather Mr Gee?
PN1211
MR GEE: They are Commissioner, yes.
PN1212
THE COMMISSIONER: Right.
PN1213
MR GEE: Before I call my first witness I would like clarify your ruling in respect to Mr Philips' appearance.
PN1214
THE COMMISSIONER: Yes.
PN1215
MR GEE: He has been given leave to intervene as I understand it, for a restricted purpose?
PN1216
THE COMMISSIONER: Yes.
PN1217
MR GEE: That would not prevent him, in my respectful submission, or maybe I should ask if this as a point of clarity, from making submissions as to anything that comes out of Mr Sevell's evidence?
PN1218
THE COMMISSIONER: I think that is probably reasonable. What I have not given him leave to do is to make general submissions about the case. So in other words, you know, whether or not the order should be revoked and issues going to that. But I think it would be probable, perhaps I should hear from Mr Tanner and Mr Morrison on this, but I would think it is probably reasonable to make submissions about the evidence that is coming from his - well it is not his witnesses, but the witnesses he is here to protect, so to speak.
PN1219
MR GEE: Yes, and I would foreshadow that while Mr Knott, who is one of the witnesses that has been summonsed, is not currently an employee of Mr Philips' client, he was at the time.
PN1220
THE COMMISSIONER: So the two of them would be, well I do not know, is there any problem with that approach Mr - - -
PN1221
MR TANNER: Sorry to be difficult. There would be in the sense that my concern would be that in the course of those submissions Mr Philips would necessarily touch on the substantive issues. I believe his role should simply be defensive in the sense that he sees, as it were, fair play in the course of the leading of the evidence.
PN1222
THE COMMISSIONER: Yes.
PN1223
MR TANNER: At that stage one assumes the interests of his clients would be secure. If he needs to deal with their interests in another forum so be it, but for you to hear submissions from him, in my submission, is that that would necessarily have a bearing on the result and he has been quite frank about their interests insofar as this matter is concerned. He has already expressed his view on the fact that there is no utility in what we doing here, so for that reason he has had his say, he should not have and I am content to let him look after his witnesses, but that should be the end of his role here.
PN1224
THE COMMISSIONER: See we are talking about you Mr Philips.
PN1225
MR PHILIPS: I just reserve my rights about whether I need to make any submissions about anything Mr Sevell says because I have not heard what he is going to be saying. And Mr Knott to a lesser extent, he is no longer our employee but I think at the relevant time he was. But I just reserve my rights.
PN1226
THE COMMISSIONER: Yes.
PN1227
MR PHILIPS: And I hear what my friends say - - -
PN1228
THE COMMISSIONER: Well maybe we will just leave it at the moment.
PN1229
MR PHILIPS: Yes, and if I need to make an application in relation to my wanting to say something, you can be rest assured I will make it.
PN1230
THE COMMISSIONER: I am sure that you will not be taking a backward step Mr Philips. But it may be that you have no desire to make submissions anyway. So perhaps we will leave it with that.
PN1231
MR GEE: One more matter before I call - - -
PN1232
THE COMMISSIONER: One?
PN1233
MR GEE: The Commission and my friends to my right, received some correspondence from me after the last date where I enclosed a photocopy of the plans of the boiler?
PN1234
THE COMMISSIONER: Yes, it is somewhere here.
PN1235
MR GEE: I do not wish to draw attention to the letter it is more the attachments which were an A4 piece of paper and an A3 piece of paper. The A3 piece of paper marked:
PN1236

Liddell power station boilers 1 and 4.

PN1237
I would like to invite the Commission to admit those, whether as an exhibit or marked for information purposes. I seek leave to have them admitted for the purpose of allowing the parties an opportunity to consider that the scope of the workplace in question. There was some evidence given by Mr Taylor on the last occasion where he described the workplace but you know, the old cliché where a picture can tell a thousand words I think would assist the Commission when it considers Mr Taylor's evidence. I do not tender it for any other purpose.
PN1238
I am aware that Mr Tanner intends to take an objection to the marking of these documents, but if it assists, I do not seek to tender these documents in rebuttal to anything Mr Mudford said about, in his description of the workplace if that assists, I simply tender them to allow the Commission an opportunity to consider the size and scope of the workplace in question.
PN1239
THE COMMISSIONER: Just before I hear Mr Tanner, I foreshadow that you are going to object to that, Mr Gee, I suppose the only question I have got is that, is that going to really assist me in the sense that if I had had the documents prior to perhaps Mr Taylor giving his evidence or any of the other witnesses for that matter, then it could have been referred to at that time and then it perhaps would have made more sense to me. Whereas it seems I am going to be in the position of somehow having to marry up the evidence with these diagrams and I may in fact somehow come to an inappropriate conclusion about something because I can't follow it.
PN1240
MR GEE: I would not invite the Commission to do that. The fact is that these documents were not available at the time when Mr Mudford, or Mr Taylor was giving his evidence, they only became available to us subsequent to that. I do not say that they were not in existence, they just were not in my possession.
PN1241
THE COMMISSIONER: When you say were not available, I mean presume you mean in your possession as opposed to actually available as in in existence somewhere in the - - -
PN1242
MR GEE: That is correct, Commissioner, yes. But it is not a particularly difficult exercise if you read the relevant excerpt from Mr Taylor's evidence to appreciate what he is describing. But in the absence of these pictures it would be a more difficult exercise to understand the workplace in which he is describing. If I can put it that way?
PN1243
THE COMMISSIONER: Mr Tanner you wanted to put something forward about the - - -
PN1244
MR TANNER: If it please the Commission. I think the principal problem is, what are you to make of the document? The way my friend expresses its role suggests that it is not evidence. Our difficulty is that it is being introduced at this stage after Mr Mudford has testified. The document was not put to him as I believe it should have been, to give him an opportunity to comment on it. We do not know for that matter whether that is an accurate representation of the premises now, whether that is a plan which might have been accurate in respect of the layout a matter of a year ago and therefore no relevance to these issues. So it is for that reason that I submit it is too late for the company to endeavour at this stage to introduce evidence. Insofar as my friend seeks to assure you and placate me that it is not evidence as such, well it just does not get off the ground.
PN1245
THE COMMISSIONER: Mr Morrison did you want to put anything or are you supporting - - -
PN1246
MR MORRISON: Nothing to add, Commissioner.
PN1247
THE COMMISSIONER: Mr Gee, I do have a - I mean I appreciate that you are not trying to introduce it as evidence as such, you know, at a normal level. But one thing I have a bit of a concern about for instance is at the bottom of the A4 page there is a date saying, and it seems to be 1983. Now maybe I am reading that incorrectly but I mean without knowing whether in fact it still looks like this, or looked like this at the relevant time.
PN1248
In any event maybe it is just my lack of technological knowledge, I do not know whether it will really mean a lot to me without having, you know, if I had had this document with Mr Taylor and/or Mr Mudford, or any of the other persons who were there and they could have said, you know at this point this is what we are talking about here, it possibly would have been of use. It probably would have been of use. As I indicated earlier, my concern is I will have these two pieces of paper and traversing the evidence it may not mean anything to me. Further we do not really know whether it is an accurate reflection of what it was at the time and does that really mean anything?
PN1249
MR GEE: I accept what the Commission is saying. It is not a matter that I intended to put to Mr Sevell, but if it would assist the Commission it is a matter that can be put to Mr Sevell as the relevant manager of the facility. But I take it no further than that, if the Commission - - -
PN1250
THE COMMISSIONER: I just do not know that it is really going to be of a great deal of utility to me, other than - - -
PN1251
MR GEE: I am in the Commission's hands on that.
PN1252
THE COMMISSIONER: Yes. You still oppose it Mr Tanner, I presume?
PN1253
MR TANNER: I do.
PN1254
THE COMMISSIONER: Well I think that I won't accept it in Mr Gee. Is there any other, just one more?
PN1255
MR GEE: There is not, Commission. I would like to call Mr Peter Sevell.

<PETER ALBERT SEVELL, SWORN [10.30AM]
<EXAMINATION-IN-CHIEF BY MR GEE

PN1256
MR GEE: Mr Sevell, could you please state your full name and address for the record?---Peter Albert Sevell (address supplied.)
PN1257
Could you please tell me your current occupation?---I am currently the manager of Liddell power station.
PN1258
MR PHILIPS: Can I just make this comment before my friend starts, and I hesitate to interrupt him, I have read the transcript, there are some matters which are contained in the transcript, touch upon occupation health and safety questions. Under the New South Wales Act a person, that is a natural person, if asked questions in relation to any matter touching upon occupation health and safety is entitled to claim a privilege, so that any of the answers he or she may give in relation to those matters can't be held against that natural person. What is important is that the person taking privilege. Now there may be questions that even asked by Mr Gee or by my friends which could touch upon occupation health and safety questions, which could, and not that we say they ought be from what we have seen, but potentially any question which touches upon that issue could be the subject of prosecution.
PN1259
So that Mr Sevell is given the protection, he just needs to say that any answers he gives today, he claims any privilege against self-incrimination. Not that I am going to upset any of the questioning, just as long as he claims a privilege we would submit he is protected from any questions which he may be asked, posing any answer he gives for any personal prosecution which may, as I said you know, not seem - you would not think anyone would be. But there is always the potential because it is still within the period during which the events the subject of these proceedings deal. It is still within the two year period in which a prosecution could be made.
PN1260
THE COMMISSIONER: Mr Philips could I ask, because I do not have the knowledge, is it sufficient for the witness to indicate that they wish to take that privilege and it then applies to any answers that they give, or do they have to each time there is a relevant question - - -
PN1261
MR PHILIPS: No, I just think if we just - because even any questions which could be asked on their face, might be individually nocuous, that question may in effect as it were, provide a chain of reasoning which goes onto another question, which may be a more particular one which may tend to incriminate the witness. What I want Mr Sevell to be able to, in the witness box, say is that he would wish to take any privilege from self-incrimination in relation to any potential proceedings under the Occupational Health & Safety Act against him personally.
**** PETER ALBERT SEVELL XN MR GEE
PN1262
THE COMMISSIONER: Assuming he wishes to do so.
PN1263
MR PHILIPS: It is just that I think he has to say it in the witness box before the questions are asked of him, that is all.
PN1264
THE COMMISSIONER: Yes, Mr Sevell?---I would like to take that privilege thank you.
PN1265
Does it have to be further than that Mr Philips?
PN1266
MR PHILIPS: No that is sufficient. Any question which touches upon occupation health and safety matters, he has taken a privilege so that any answers he gives now are - because he is compelled to give them because he is in the witness box and he is here under a subpoena, that question has not been asked yet, but - - -
PN1267
THE COMMISSIONER: Well there is a summons here yes.
PN1268
MR PHILIPS: But as I understand it, he is under subpoena so he is actually compelled to give these answers, so that any answer he gives now can't be used against him in any personal proceedings caused by any relevant authority.
PN1269
THE COMMISSIONER: Thank you. Yes Mr Gee.
PN1270
MR GEE: Mr Sevell you understand the nature of the privilege that you have indicated you would like to take?---I do thank you.
PN1271
Can you tell me who your current employer is?---I work for Macquarie Generation, a state owned corporation.
PN1272
How long have you been an employee of Macquarie Generation?---I have been an employee of Macquarie Generation since 1997.
PN1273
I would like to hand the witness a document which is AMWU1 Commissioner?
PN1274
THE COMMISSIONER: All right.
PN1275
MR GEE: Mr Sevell, before I take you to that document, you are aware that you are here under summons?---I am.
**** PETER ALBERT SEVELL XN MR GEE
PN1276
You are aware that this proceeding has been going on for some time?---Yes.
PN1277
Were you aware that officials of the AMWU had given evidence in these proceedings at an earlier date?---Yes I am aware of that.
PN1278
If you open that folder there is a series of tabs, can I ask you to turn to the document that is behind the tab marked G please?---Yes.
PN1279
That is a photocopy, a black and white photocopy of what appears to be a photograph, do you see that?---Yes I see that.
PN1280
Have you seen that photograph before?---I believe I have.
PN1281
Can you tell me how you came to see that photograph previously?---I understand that was a photo taken by the AMWU and it was shown to me I believe by Daniel Wallace from the AMWU.
PN1282
Did you ever visit the location in which that photograph was taken?---No I did not.
PN1283
You recall that there was an outage at the Liddell power station in October last year, do you recall that outage in a general sense?---Yes.
PN1284
You will recall that in the course of that outage there were some industrial relations issues involving HIS Engineering and other contractors. Do you recall that - - -?---That is correct, yes.
PN1285
During the course of the outage did you ever attend a site inspection with officials of the AMWU?---I did.
PN1286
Can you tell us what happened on those inspections, or one or more inspections?
---I visited - I inspected the site with Daniel Wallace from the AMWU, Tim Ayres from the AMWU and a contractor employee, myself and the safety manager at the time. We inspected unit 4 of Liddell power station and unit 3 of Liddell power station. There were some issues being raised in concerns with insulation on the site and the purpose of the inspection was to identify any safety concerns that may be held.
PN1287
You mentioned unit 3 and unit 4; can you describe what unit 3 and unit 4 are?
---Yes, a unit in a power station sense is a combined boiler and turbine generating system. A 500 megawatt generating system has a turbine driving a generator and a boiler providing steam to that turbine. So that plant - the boiler plant is a piece of plant in the order of 30 metres high and the turbine house which attaches to the boiler is like a large factory building.
**** PETER ALBERT SEVELL XN MR GEE
PN1288
So how long would it have taken to do this inspection?---I think it was in the order of an hour.
PN1289
Did you find any asbestos - I will withdraw that. Did you find any exposed asbestos in that inspection?---Yes.
PN1290
Can you tell us about that please?---There was - there was one small area of exposed asbestos which was in a myriad of pipe work overhead, probably in the order of six metres overhead. There is a network of pipe work, one - one piece of pipe had been rubbed by a bolt on a clamp from an adjacent piece of pipe and that bolt had worn through an area probably about as - about as thick as a pencil and around 150 millimetres long. It was pointed out to me by the contractor employee at the time and I noted you had to stand in a particular position to be able to see it. And that each person on the inspection in turn stood in that particular location to point out that particular piece of insulation.
PN1291
Could you reach the area from where you were standing?---No.
PN1292
Did you touch it?---No.
PN1293
Other than this one area that you have just described, were there any other areas in either unit 3 or unit 4 where you found asbestos exposure on this inspection?
---No.
PN1294
What did you do once you became aware that there was this particular area where asbestos had been exposed?---I immediately arranged with the boiler engineer to - for him to organise with our insulation removal contractor to seal that exposure and in fact to strip and remove the asbestos from that length of pipe in - in subsequent days.
PN1295
Who was that contractor?---Insultech.
PN1296
This area in question, where was it located?---It was on the turbine house of unit 3.
PN1297
Was this where HIS' employees were working in the course of the outage?---No HIS were working on the boiler of unit 3.
PN1298
Was anybody working in this area at the time?---At the time there was nobody in the area.
**** PETER ALBERT SEVELL XN MR GEE
PN1299
Did you say anything to Mr Wallace or Mr Ayres in the course of the inspection?
---We would have had discussions - we did have discussions as we progressed through the inspection. I was taken to a number of areas in the plant of where people were - where - where there was express concern, however those concerns were not validated.
PN1300
It has been alleged that you said words to the effect that the Union had opened your eyes up. Did you say that?---It is not a term I use and I have no recollection of saying that.
PN1301
It has been alleged that you stuck your finger into a part of the plant that there was a concern was leaking asbestos - I will withdraw that. It has been alleged that you stuck you finger into a part of the plant where there was a risk of asbestos being exposed. Did you do that?---No.
PN1302
Mr Sevell, can you describe, is there a program in place at the Liddell power station to deal with the removal of asbestos and if so can you describe to me how that program works in a general sense?---Yes there is a program, each year we let contracts on our boiler and turbine plant for unit over hall and in those contracts there is an allowance - not an allowance - there is a - there is a - part of the contract specification, which calls up asbestos removal requirements, during the - during those contract periods.
PN1303
Did those contracts commence only after this asbestos issue arose in the outage last year or at some other time?---No those contracts have been ongoing over a number of years and - and continue to be ongoing.
PN1304
Have you changed that program at all since this incident and during the outage last year?---Have not changed the process at all.
PN1305
Were you on site or were you on duty during the course of the outage in October of last year at the Liddell power station?---I was.
PN1306
Are you able to tell us what the Macquarie Generation workforce, who ordinarily work in the Liddell power station, were doing during the course of the outage?
---They were performing their normal duties, whether that be in an operating sense for operators and a maintenance sense for maintenance staff, technical sense for contract administrators or plant inspection processes during outages. That type of thing.
**** PETER ALBERT SEVELL XN MR GEE
PN1307
Is there a practice - well were any more employees than usual absent on leave during this outage?---No.
PN1308
Was there a practice of reassigning Macquarie Generation employees to do paperwork or other duties during the course of an outage?---No.
PN1309
Did you assign Macquarie Generation employees to work in other areas of the power station during the course of the outage?---Macquarie Generation employees work in all areas of the power station during the outage.
PN1310
Mr Wallace alleges that he had a conversation with you in around about October last year, I do not intend to question you about the particular date, but where he says that you could not guarantee there would be no asbestos throughout the site or words to that effect. Do you recall a conversation where that might have been discussed?---I had quite a number of discussions with Mr Wallace over that period and - and I do recall having some discussion along those lines.
PN1311
It has been alleged that you said to Mr Wallace that at the end of the day you would send people out as guinea pigs and if they find asbestos you would add it to the register?---Absolutely not.
PN1312
Are you denying you said anything like that?---I am denying I - I would use the term guinea pigs, or that I would even infer that we would use people as guinea pigs. As far as if asbestos insulation is identified and is not on the register, then certainly we would add it to the register.
PN1313
Can you tell me what the current practice is about how you deal with the identification of asbestos at the site and how you add it to that register and so on and so forth?---We have - we have undertaken a complete survey of the power station, using our insulation removal contractor to identify asbestos on the power station site. If anything that is subsequently found which has not been identified through that process or - or prior to that process, then it is brought to our attention. If there was any doubt a sample is taken of that insulation, it is then tested by a laboratory, if proven to be asbestos it is then added to the register.
PN1314
When did this survey take place?---The extensive survey took place as a result of requests in the October outage.
PN1315
Prior to that survey and subsequent to that survey, and please tell me if there is a difference with prior to and subsequent to, if there was a substance on the site where people are not sure what it is, what do you do with that?---We - we request our people and others on the site to - if they are uncertain about insulation to consider it as if it was asbestos and until it was proven otherwise.
**** PETER ALBERT SEVELL XN MR GEE
PN1316
Do you recall in the course of this outage in October there was a concern about asbestos, do you recall whether there were any other concerns?---Yes, there were concerns raised throughout this period of disruption in relation to amenities in relation to confined spaces.
PN1317
In relation to that issue of confined spaces, if I suggest to you that that did not arise until after the orders were made, would you agree with me on that or would you say otherwise?---There was discussion I think prior to the orders being made, about confined space processes on the site, but it was not raised as a significant issue until after the orders were raised.
PN1318
Coming back to the amenities; did Macquarie Generation play a part at all in relation to the amenities issue?---Yes, when the amenities were raised as a concern, Macquarie Generation issued an instruction to contractors to review their amenities and ensure that they were complying with regulations and requirements. We were also requested to provide some amenities we may have on site which were not in use by our own employees. I agreed on a meeting, I think 21 October, to provide those amenities for contractor use, as I was aware that the contractors were in fact in the process of bringing in additional amenities as they had been requested. So these facilities from Macquarie Generation were provided if you like as a stop gap until the newer facilities - the - the brought in facilities were installed.
PN1319
What particular amenities are you describing?---A shower block, which included eight showers, a changing area, some wash basins, toilets, urinals.
PN1320
Those are my questions, Commissioner.
PN1321
THE COMMISSIONER: Thank you. Who goes next? I am just wondering?

<CROSS-EXAMINATION BY MR MORRISON [10.50AM]

PN1322
MR MORRISON: Yes Mr Sevell, Mr Gee talked to you about some of the questions about an inspection you conducted with Mr Wallace and Mr Ayres and others?---Yes.
PN1323
Do you recall when you did conduct that inspection?---It was in late October, I am not sure of the - it may have been about 25 October I think.
PN1324
For the purposes of why we are here, you are aware of the orders that were issued by the Commission on the 26th?---Yes.
**** PETER ALBERT SEVELL XXN MR MORRISON
PN1325
Is it your recollection whether that inspection was carried out before or after the issue of that order?---I believe it was before.
PN1326
What was the purpose of that inspection?---The AMWU had raised some concerns with - concerns about asbestos on the site and had asked, Tim Ayres had arrived at the site actually, and had asked to inspect the site. I gave approval for him to inspect the site provided I was with him and I joined that collection of gentlemen on that basis.
PN1327
Mr Gee took you to some evidence that was given by Mr Wallace as to you - he recalls you saying that when you accompanied them on the inspection, that opened your eyes up?---Yes.
PN1328
Is it your recollection that you clearly did not say those words?---I have no recollection of saying those words.
PN1329
His clear recollection of you saying those words? Was there some discussion about what you found in that inspection?---There - there were discussions throughout the inspection.
PN1330
I put it to you that comments about what you found would have been more at the end of the inspection rather than midway or at the beginning. Towards the end of the inspection what was the general nature of discussions to your recollection?
---After - after the inspection I had a meeting in my - in my office with Mr Ayres and Mr Wallace and others present, and we overviewed the inspection process and I advised them that I would follow up any concerns that they had and - and respond to them appropriately. I in fact did that. I did make a comment - we did - we did discuss through the inspection the observations that were being made.
PN1331
Did you find during your inspection, any areas that gave rise to some concern?
---There were - there were seven or eight areas that were pointed out to me to be of concern and they were primarily to do with insulation material. One of those areas was subsequently - as I have just described - it was found to have exposed asbestos. Others were either sealed or were non-asbestos.
PN1332
Do you recall any incident - I know you spoke to Mr Gee about that - where you stuck your finger in some material and pulled it out and some dust followed your finger out and went over Mr Wallace and Mr Ayres. Do you recall that incident?
---What I recall is on a boiler circulation pump on - on unit 3 boiler there was some insulation around that casing. I touched that - that insulation casing with my finger, I did not poke it in, but I touched it and some dust did come out when I touched it. However that was not asbestos dust, Mr Ayres and Mr Wallace would have been some probably ten metres away, or eight to ten metres away when I did that.
**** PETER ALBERT SEVELL XXN MR MORRISON
PN1333
Mr Wallace said in his evidence that some dust sprayed over himself and Tim Ayres?---No, I do not believe that is correct at all.
PN1334
You could see Mr Ayres and Mr Wallace when you - - -?---I certainly - I certainly could.
PN1335
You certainly could - - -?---That - look - - -
PN1336
And do you also say - - -?---can I - can I clarify that?
PN1337
Yes?---Some - some dry insulation material came out of that area that I touched, but it fell straight to the floor in front of me. So if there was any risk it was to myself, not to anybody else and I do not believe I suffered any risk.
PN1338
So you did not apologise to them about the incident?---I may have said to them, I am sorry, I hope that has not concerned you? Or something to that effect. Because at that - at that point in time they were pointing to me as that being a potential asbestos situation, which it was not.
PN1339
So you did not say, "I am sorry that you were sprayed with dust"?---No.
PN1340
You said, "I am sorry that this does concern you"?---Sorry could you repeat that?
PN1341
What did you say? What did you apologise for?---Because I believed they were concerned.
PN1342
So you were sorry they were concerned?---Yes.
PN1343
You were not sorry because they had any suspect dust over themselves, you were just - - -?---I do not believe they had any suspect dust over themselves.
PN1344
You were just sorry they were concerned?---Yes.
PN1345
Concerned about you or concerned about themselves or concerned about the workers?---Concerned about the site and concerned about seeing dust coming out, given their previously expressed concerns.
PN1346
But no dust came out so why would they be concerned?---No I am sorry - - -
**** PETER ALBERT SEVELL XXN MR MORRISON
PN1347
MR PHILIPS: I object to that. I mean I think my friend is not putting - - -
PN1348
THE COMMISSIONER: No it is all right. Mr Morrison the witness has actually said that dust came out. At least I understood that is what you said Mr Sevell?
---That is correct.
PN1349
That you touched it and some dust came, you say it fell down near you?---That is correct.
PN1350
You say that Mr Ayres and Mr Wallace were eight to ten metres away from you?---Yes.
PN1351
That is what he said.
PN1352
MR MORRISON: Okay then, thank you Commissioner. Did you later that day ring Mr Wallace? Do you recall that?---Yes.
PN1353
Did you give him any report on what had actually occurred at that site where the dust fell straight to the floor as you say?---Yes, I advised him that that was non-asbestos insulation, because he had that concern.
PN1354
He had that concern?---Yes.
PN1355
Do you understand what the effect of exposure to asbestos fibres is?---I am not an expert in the field but I understand the health concerns with asbestos, yes.
PN1356
What are they to your knowledge?---Well there is - there is a risk of asbestosis, a risk of mesothelioma if you ingest or breath in the substance.
PN1357
Does Macquarie Generation, to your knowledge, have a policy about possible exposure?---I am not - I am not aware of any policy about possible exposure.
PN1358
Well does Macquarie Generation have a policy about when a possible suspect substance is found, what the actions should be?---Yes.
PN1359
What is that policy?---It is - it is a multi - multi-page policy, it is a power station standing instruction, which goes to the process to be applied for handling asbestos insulation on the site.
**** PETER ALBERT SEVELL XXN MR MORRISON
PN1360
No, not handling it, when you find it?---For finding it?
PN1361
When it is found or a suspect substance is found, what is the policy?---The policy is that that is reported and then it is - it is inspected or it is - if it is a spill it is cleaned up as if it is asbestos, if there uncertainty to that effect, as a precaution. If it is an area that needs sealing it is sealed, if it is an area that needs identifying it is assessed and identified.
PN1362
What do the workers in that area, when it is initially found, what are they to do?
---To report it to their supervisor.
PN1363
Then what do they do?---I am sorry, I do not know what you mean.
PN1364
Well do they still stay in the area when it is found or do they leave the area and go somewhere else?---If an exposed insulation, and it is in an area they report it and it is cleaned up. They - they are not required to - to work on that exposure if that is what you are asking.
PN1365
They are not required to work in that area?---Well it depends by what you mean, in that area.
PN1366
Do they work directly underneath it?---No.
PN1367
Do they work within two metres of it?---They may.
PN1368
They may? That is in the policy of Macquarie Generation is it?---No that is not written in the policy of Macquarie Generation.
PN1369
What is written in the policy of Macquarie Generation?---Well what I just explained to you.
PN1370
Okay. Was Macquarie Generation concerned with the issues of possible asbestos being found in the area? In the area that was being worked on during the shutdown?
PN1371
MR PHILIPS: I object to that question, to the extent that I do not think it is - - -
PN1372
MR MORRISON: Yes, Your Honour - - -
**** PETER ALBERT SEVELL XXN MR MORRISON
PN1373
MR PHILIPS: Perhaps narrow down the dates, because I mean the dates in this case are very important.
PN1374
THE WITNESS: Thank you.
PN1375
MR MORRISON: Prior to the issue of the orders, you will accept that there had been concerns raised about possible asbestos in the area?---In the area of unit 3 boiler?
PN1376
In the area where HIS employees were working?---Yes.
PN1377
Yes. Did Macquarie Generation have any such concerns?---Not prior to it being raised as an issue, no.
PN1378
Not prior to it being raised as an issue. Did Macquarie Generation maintain an asbestos register?---Yes.
PN1379
Was it an accurate register?---It was accurate to the best of the knowledge of the people on site.
PN1380
Was it updated as a result of the concerns raised by the HIS employees?---It was.
PN1381
It was. Is it continually updated as asbestos is located throughout the power station?---It is.
PN1382
How much does Macquarie Generation spend each year in the removal of asbestos from the site?---I could not be precise on that. It is variable, it depends on the - the contract at the time on the area of asbestos removal being worked on.
PN1383
We have heard evidence that it comes to $2.5m a year that is spent?---No I could not substantiate that.
PN1384
Would it be less or more?---I believe it would be less. It is a variable - it is a variable amount.
PN1385
Would it be $1m a year?---On - on average I believe it would be less than a million.
PN1386
Would it be less than 500,000 a year?---If - if you are trying to get me to - get me to give you a range - - -
**** PETER ALBERT SEVELL XXN MR MORRISON
PN1387
I am just looking at a ball park figure?---As a ball park it would be between half a million and $1m on average I would expect. Without going back and checking previous contracts and the like.
PN1388
Do you have any knowledge as to how many years into the future it is expected that asbestos will be removed?---No we do not have a - - -
PN1389
MR PHILIPS: I object to that question. Where is my friend talking about? Which power station?
PN1390
MR MORRISON: At Liddell power station?---We have a continuous process of removing asbestos on our boilers and turbine plant. There has been many millions of dollars spent on asbestos removal in prior years. We are still continuing with that process, we do not have a fixed end date to that process.
PN1391
Do you continually update the various sub-contractors on your site as to the removal of asbestos from the site?---Yes.
PN1392
Did Macquarie Generation have any meetings with the sub-contractors working on the shutdown on or around the day of the issuing of the orders by the Commission?---Can you ask me that again please?
PN1393
Did Macquarie Generation have a meeting with the sub-contractors on the site over the issue of asbestos, and to be more specific, on or around the day of the issuing of the orders?---I can't recall having a meeting on the day of the issuing of the orders, but there were - there were meetings during that period.
PN1394
Specifically about asbestos?---About asbestos concerns, yes.
PN1395
What was said at those meetings, to your recollection?---My recollection we discussed the processes of dealing with safety concerns. What we were concerned about was we had industrial action going on the site and - and we were very - it was very important to us as a business that safety issues are treated as safety issues and they are responded to appropriately. And industrial issues are treated as industrial issues.
PN1396
So what did Macquarie Generation suggest to the contractors with regard to the asbestos as distinct from the industrial issues?---The only consideration of asbestos was that it - it should be treated in accordance with our requirements, in accordance with the requirements of the regulations and the regulations - and the requirements of the Act.
**** PETER ALBERT SEVELL XXN MR MORRISON
PN1397
Specific to Macquarie Generation's requirements, to your recollection, what did Macquarie Generation say to the sub-contractors are your requirements with regard to asbestos?---As I have just said to you, that it would be handled in accordance with our policy and procedures and in accordance with the regulations.
PN1398
If you could take us back to what specifically they were?---That is what I discussed previously, our - we have a policy on how to handle asbestos which is the - which is all written in our procedures.
PN1399
To your recollection that was made very clear to the sub-contractors, including HIS?---That is correct.
PN1400
No further questions, thank you.
PN1401
THE COMMISSIONER: Mr Tanner did you wish to cross-examine?

<CROSS-EXAMINATION BY MR TANNER [11.04AM]

PN1402
MR TANNER: Thank you Commissioner. Mr Sevell, you spoke about the expenditure entailed in asbestos removal, and gave what you described as a ball park figure of between half a million and $1m per annum?---Sorry I also made the comment that that is a generalisation.
PN1403
I understand that. You were referring to Liddell were you?---I was.
PN1404
So insofar as Liddell is concerned you have had a continuing problem that has required investments in asbestos removal?---We have a continual process that requires investment in asbestos removal.
PN1405
You see no problem?---I do not see it as a problem.
PN1406
You do not see the fact that there is asbestos on the premises as a problem?---No.
PN1407
You attended an inspection with employees and in your evidence you referred to a discussion which you had in your office and in your words you said, "You would follow up their concerns"?---That is correct.
PN1408
What were their concerns?---I had been taken on - on an inspection of the power station as I previously discussed. There were - each time an item was pointed out to me as being a potential concern to the people on the inspecting party if you like, I took a note of that item and then I - I would undertake - I undertook to respond to them on my investigations into that particular item that was pointed out. I did that.
**** PETER ALBERT SEVELL XXN MR TANNER
PN1409
Those concerns related to the health and safety of persons working on the site?
---Those concerns related to the content of the insulation that was being pointed out to me on the site.
PN1410
Hence the health and safety of the persons working on the site?---Well I do not believe they proposed - they - they provided any risk to the health and safety of the persons on the site.
PN1411
I am not sure why you are avoiding this particular issue, surely it would have been patently obvious to you that what was being raised was the prospect that the health and safety of employees was - - -
PN1412
MR PHILIPS: I object to this. He is asking the witness to speculate as to what was in the minds of the people who raised the concerns.
PN1413
THE COMMISSIONER: Mr Tanner?
PN1414
MR TANNER: Commissioner, I am referring to a discussion which took place in which the witness himself has referred to the concerns of the employees. I am asking him to explain to us what those concerns were. He had a discussion, he is quite free to give us his experience and interpretation of what was discussed.
PN1415
THE COMMISSIONER: As best as he can.
PN1416
MR TANNER: As best he can. He does not need my friend to intervene. He is the Senior Manager who I would imagine is quite capable of giving an account of it.
PN1417
THE COMMISSIONER: Perhaps you might like to repeat the question Mr Tanner?
PN1418
MR TANNER: Mr Sevell, I was putting to you that the issues of concerns related to health and safety. I would have thought that was perfectly obvious and would not be something for you to feel reluctant to concede?---You asked me to speak on behalf of other people's concerns. There were - there were a number of concerns that were raised with me, they did raise concerns with payment of individuals with industrial issues on the site and with occupational health and safety.
**** PETER ALBERT SEVELL XXN MR TANNER
PN1419
Thank you, so occupational health and safety was one of the issues raised with you?---Yes.
PN1420
That occupational health and safety issue related to the presence or the possible presence of asbestos on that site?---That is correct.
PN1421
As for the presence of asbestos there is no dispute is there that as at the time of that meeting there had been a recent discovery of exposed asbestos?---That is correct.
PN1422
Was that of concern to you?---Yes.
PN1423
Why?---Well I thought that was evident from previous discussions.
PN1424
Why was that of concern to you Mr Sevell?---It is a health issue, exposure of asbestos to individuals.
PN1425
Why should that be a problem?---I do not understand your questioning, I am sorry.
PN1426
Why should exposure of people to asbestos be a problem?---It is a known health issue.
PN1427
It is a problem isn't it?---Well it is a known health issue, I am answering your question.
PN1428
It is a problem isn't it?
PN1429
MR PHILIPS: Well I think your question has been answered, really there is no need to pursue this matter.
PN1430
MR TANNER: As my friend pleases. At that particular time Mr Taylor conceded that he could not say that employees of HIS would be working in an area that would be free of asbestos. Do you confirm that?
PN1431
MR PHILIPS: I object to that question. I mean it is a question of you know, when was it said, which particular area are you talking about? The question is just too general and of course he needs to also be asked whether he knew Mr Taylor said such a thing.
**** PETER ALBERT SEVELL XXN MR TANNER
PN1432
MR TANNER: I will rephrase my question. HIS sought orders in this Commission on 26 October 2004 to be precise. You were aware of that weren't you?---Yes.
PN1433
Mr Taylor gave evidence in support of the application for those orders, and he was asked the following question:
PN1434

In respect of the work that HIS is contracted to perform at Liddell, the current contractors that you described in your statement, can you say whether every work area where your people will be working will be free of asbestos?

PN1435
That was the question put to him. His answer was:
PN1436

No I can't say that.

PN1437
Was he correct in that?
PN1438
MR PHILIPS: I object. If he is going to put that to the witness he ought to put Mr Taylor's evidence on 13 April in respect of that very issue to the witness as well. Otherwise that question is being put out of context.
PN1439
MR TANNER: With respect, Commissioner, it is for my friend to re-examine the witness ..... this issue which he believes puts this evidence in context. I do not need to do his job. May I?
PN1440
THE COMMISSIONER: Yes, of course.
PN1441
MR PHILIPS: Can I just say this, I do not get a chance to re-examine the witness. What my friend should be doing is fairly putting questions to this witness, so there is other material which this witness should be made aware of. He should be given the opportunity to answer that as well. So if my friend - if he puts a question in isolation as the Commission would be well aware, anything in isolation may be misleading. So that what my friend should you know, embark upon really, is fair process of questioning on this issue so that Mr Sevell is given every opportunity to provide any answers he can give to assist the Commission in any answers that can be given.
PN1442
Not to put the whole point to Mr Sevell is not to be fair to him and particularly not to give the Commission a fair rendering of what the evidence should be. So that as I said, Mr Sevell is at a disadvantage, he was not here on any of those other occasions. He has not heard what Mr Taylor has said, so my friend really clearly - and even perhaps it would assist me, if he should identify what passage from which day he is put in that particular question, so that there may be another question on the same page which may be of assistance to me and even may be of assistance to Mr Sevell.
**** PETER ALBERT SEVELL XXN MR TANNER
PN1443
THE COMMISSIONER: Well I think it has been made clear when Mr Taylor's evidence was given, it was the day the orders were sought.
PN1444
MR PHILIPS: Yes. But I think there is a few pages there and if my friend could assist me - - -
PN1445
THE COMMISSIONER: It did not go for very long Mr Philips, so I do not think it will take a long time to find.
PN1446
MR TANNER: Commissioner, for the benefit of Mr Philips, I am referring to the question which was put to Mr Taylor at the top of page 21 of the transcripts.
PN1447
THE COMMISSIONER: There should be a paragraph number.
PN1448
MR TANNER: Paragraph 179.
PN1449
MR PHILIPS: I am indebted to my friend.
PN1450
THE COMMISSIONER: Yes, I can see that there.
PN1451
MR PHILIPS: But that is only part of what I said. So if there is any other alternative material which he should be aware of, because I think my friend Mr Gee has made some comment that there is some other material at another place. Equally Mr Sevell should be given the opportunity to answer that as well.
PN1452
MR TANNER: Well Commissioner, to be frank I am not sure what Mr Gee is referring to. I have this particular piece of evidence in mind, I wish to explore what arises from it. If Mr Philips for that matter believes that there are material issues which need to be traversed, I have no difficulty with his seeking to question the witness about that. But I would prefer it if I could move on and conclude my cross-examination.
PN1453
THE COMMISSIONER: Yes Mr Tanner.
PN1454
MR TANNER: To recap Mr Sevell, I will put to you the question which was put to Mr Taylor, and that is related to whether as at 26 October he could say that HIS employees would be working in an area free of asbestos. His response to that question was he could not say that. Do you accept that that was a fair answer by him, having regard to the circumstances at Liddell at that time?
**** PETER ALBERT SEVELL XXN MR TANNER
PN1455
MR PHILIPS: Look I object to that, I think what my friend should do is actually put the whole passage, the whole question to him.
PN1456
THE COMMISSIONER: Well I think Mr Philips, I think Mr Tanner in fact did that. Certainly on the first occasion he did, he read out the whole passage. It is only a three line part that is relevant and I am sure that he put that to the witness.
PN1457
MR PHILIPS: Well when I say the whole passage, this passage has a number of questions to it. That is one of the questions in the passage, so that one could get a misleading impression merely by the one question. So that Mr Sevell should be perhaps given the opportunity perhaps to read say from about PN176 to about PN180. Then he is in a better position to answer my friend's question. Because my friend's question - the one question he has put is only one of a series of questions which relate to the same topic.
PN1458
MR TANNER: Commissioner, the reference to 176 is misplaced in the sense
that - - -
PN1459
THE COMMISSIONER: Is to do with Bayswater.
PN1460
MR TANNER: - - - from 176 to 178 the questions relate to the Bayswater power station.
PN1461
THE COMMISSIONER: Bayswater power station. It is only 179 that it says:
PN1462

And if you could then turn your mind to Liddell.

PN1463
So Mr Philips the earlier questions do not relate to Liddell. Mr Tanner did put to the witness early on and he read out in respect of the work that HIS is contracted to perform at Liddell, and then he read out the rest of that paragraph.
PN1464
MR PHILIPS: Yes.
PN1465
MR TANNER: May I proceed Commissioner?
PN1466
THE COMMISSIONER: Yes Mr Tanner. Except I think you will probably have to put it again to Mr Sevell because he has probably forgotten what was in it.
PN1467
MR TANNER: Mr Sevell, a question which was put to Mr Taylor relating to Liddell power station. He was asked whether he could say that every work area where his people, in other words HIS employees were working, would be an area where they would be working free of asbestos. His answer to that was no he can't say that. Let me put to you, can you say as at 26 October that every work area at Liddell would be an area where people would be working free of asbestos?
---What I have already said is that we have a register of asbestos locations on the site. We have contractors that remove asbestos, therefore I can't say there would be no asbestos on the site. There is asbestos on the site and it is kept in - it is recorded in a register.
**** PETER ALBERT SEVELL XXN MR TANNER
PN1468
It is recorded as it is found?---It is recorded and to the best of their knowledge.
PN1469
As it is found?---I am not sure you can say as it is found, it is historical, the register is an historical document, so it has been inspected, it has being surveyed, it has been recorded. If anything, as we discussed before, if anything is found that is subsequently revealed then it is tested and put on the register. We have been through that process I think.
PN1470
I assume it works like this, you have a book, you start off when that book has nothing written in it. There will be a discovery, in the book you will record the date on which asbestos was found and where the asbestos was found. So you have this chronological account of where and when asbestos is identified?---It is - it is broader than that. It is - the power station was built, as you would probably know, in the - in the early 1970s. It was extensively insulated with asbestos insulation. That - that is in most of the original contracts which would have - which would have been used to form the original register. Then as it has been progressively removed or found in specific areas that were not on that register it has either been taken off the register or added on.
PN1471
For that matter there continues to be an asbestos presence at the Liddell power station. You have not removed all the asbestos?---That is correct.
PN1472
Then from time to time there will be incidents such as the incident which occurred in October when a boiler door was found to have exposed asbestos?---Hopefully that will be very rare.
PN1473
But it happens?---It can happen.
PN1474
There is no dispute that there was exposed asbestos at the Liddell power station in October?---That is correct.
PN1475
Would anybody have cause for concern about that?---Yes.
PN1476
Did you have cause for concern?---Yes, I answered that question before I thought, yes.
PN1477
No, but I am referring you with specific attention to the exposed asbestos in the boiler doors in October. That specifically was a source of concern to you?---Yes.
**** PETER ALBERT SEVELL XXN MR TANNER
PN1478
You do not take issue with the fact that it was a source of concern to the employees of HIS?---No I do not.
PN1479
So all of this talk about asbestos and health and safety in October, it was not some beat up, was it?---All of it wasn't no.
PN1480
There was a genuine underlying concern which employees had?
PN1481
MR PHILIPS: I object to that question. I think my friend needs to put a date on that, because you now there has been evidence, as I understand it, in relation to that boiler door and what was discovered there and when it was rectified. Now my friend is putting a very general question there, there were genuine concerns. There may well have been at a time, but it may not have been at a subsequent time.
PN1482
MR TANNER: I will work on the basis of that objection, Commissioner. Do you recall the dates on which the boiler door was discovered to contain exposed asbestos?---My recollection is that was 14 October 2004.
PN1483
That is right. Prior to that date there had not been an issue which was a source of concern for employees?---Not to my knowledge.
PN1484
That was the trigger, the discovery of the exposed asbestos on 14 October?---It raised the concern, yes.
PN1485
There is no dispute that there was, in the wake of that discovery of exposed asbestos, significant discussion between employees and management both of HIS and Macquarie Generation, about health and safety issues?---Sorry, could you ask that again?
PN1486
After the discovery of the exposed asbestos on 14 October, there was significant discussion between employees and members of management from both Macquarie Generation in your case and HIS, regarding health and safety issues?
---That is correct.
PN1487
You regarded it as relevant to conduct an inspection?---That is correct.
PN1488
You are not a specialist in asbestos identification are you?---No.
**** PETER ALBERT SEVELL XXN MR TANNER
PN1489
You could not purport to certify having conducted such a survey that the areas you had inspected were safe, could you?---I am not - sorry - - -
PN1490
You could not purport to certify as a person with specialised knowledge, that the areas that you had surveyed were either safe or were not safe? It is not your training?---No that is correct.
PN1491
So you conducted what we can describe as an informal survey of the factory?
---Sorry when? I am not sure what time you are talking about.
PN1492
The date that we are referring to is the date on which you accompanied Mr Wallace and Mr Ayres. It is the examination which you referred to in your evidence?---Thank you. I did not conduct any survey at all, I joined those people. At their - at the request of Mr Ayres to inspect the site and I went where they chose to take me.
PN1493
You can't be satisfied that your examination was conclusive?---It was not my examination. I accompanied them on an inspection to areas that I was asked to look at.
PN1494
But having looked at what you referred to, you can't say as a matter of professional assurance and certainty, that what you saw could leave you satisfied that there was asbestos or that there was no asbestos?---Yes I could, because as I said before on transcript, I believed I had those areas checked by people with that knowledge. And obtained advise from those people with that - with that knowledge and provided that advice to the Union.
PN1495
Another issue you raised in your evidence was that in the contracts with the various contractors who worked on the site, asbestos removal is one of the issues which is addressed in the terms on which they were engaged there. Is that correct?---That is correct.
PN1496
Is that because there is this perennial problem that the Liddell power station is riddled with asbestos?---No I - the Liddell power station is not riddled with asbestos. There is asbestos bearing insulation under - under sealed cladding at Liddell power station and we are working through a process to remove that asbestos progressively over time. It does not present any hazard while ever it is sealed and contained within cladding.
**** PETER ALBERT SEVELL XXN MR TANNER
PN1497
How is it that the boiler door came to pose a threat to the health and safety of persons working on the site?---Well - how is it, I am not sure what you mean by how is it?
PN1498
Well you know that exposed asbestos was discovered?---Yes.
PN1499
In the boiler door?---That is correct.
PN1500
How did that occur?---I am sorry how did what occur?
PN1501
How did it come to be exposed?---It was exposed by contractors working with - for HIS removing the skin of the door and - and finding insulation behind that skin. Which they suspected may have been asbestos.
PN1502
Were they right with their suspicions?---Yes that insulation material was tested, there was asbestos in the insulation material. There was also, in behind that boiler skin, there was also boiler dust, and - and block insulation material. It did contain an - an amount of asbestos in it, but it contained a lot of other materials as well, such as plaster and the like.
PN1503
For that matter, an employee engaged in work in that factory will necessarily risk exposure because of the way in which that particular set of premises was built?---Not necessarily - - -
PN1504
MR PHILIPS: I object to that. Set of premises, that is a very broad expression. I think that the concentration here is on that door. So there is a difference between the door and the set of premises. My friend should - - -
PN1505
MR TANNER: I will address that concern. The boiler door is in keeping with construction of a particular era?---Yes.
PN1506
Are you comfortable with that?---Yes.
PN1507
It is a relic from the 70s?---That is correct.
PN1508
The Liddell power station has, as you indicated, plenty of asbestos in it because those were the materials used at the time?---It has had the majority of the asbestos removed from it, there is still remaining asbestos.
**** PETER ALBERT SEVELL XXN MR TANNER
PN1509
Yes, there is still asbestos remaining there and for that matter you can't say that an employee, as occurred when the boiler door was removed, might in the removal of other materials, experience similar exposure as occurred in relation to the boiler door. It is possible, isn't it?---It is possible.
PN1510
No further questions Commissioner.
PN1511
THE COMMISSIONER: Mr Gee, did you wish to re-examine?
PN1512
MR GEE: Yes.
PN1513
MR GEE: Mr Sevell, you were taken to - - -
PN1514
MR PHILIPS: Before my friend re-examines, can I get a chance?
PN1515
THE COMMISSIONER: Yes, sorry Mr Philips.
PN1516
MR PHILIPS: I am sorry, because I mean he has called the witness. I just want to ask a couple of questions.
PN1517
THE COMMISSIONER: Yes.

<CROSS-EXAMINATION BY MR PHILIPS [11.27AM]

PN1518
MR PHILIPS: In relation to that boiler door, you said that the asbestos was exposed on 14 October last year, what was then done to remove the problem in relation to that exposure of that boiler door?---Once - once that was revealed our insulation contractor was engaged to - to - sorry, the boiler door itself I understand HIS bagged the boiler door, or the boiler door contents if you like, and removed that from the worksite. The worksite was then cleaned up by our insulation contractor who was engaged for that - that cleanup process using appropriate procedures.
PN1519
Firstly, did that process take place immediately when Macquarie Generation became aware that there was exposure of asbestos dust on that boiler door?---The process commenced immediately that was - that was understood to be the case. And it carried on over - it carried on the weekend following 14 October and then after - after that process was carried out samples were taken and an all clear was given such that there was no indication of any remaining asbestos.
**** PETER ALBERT SEVELL XXN MR PHILIPS
PN1520
When you say a samples were taken, I think you mentioned earlier that there was an expert engaged?---Yes, the - there were dust samples, sorry there was air samples taken following the - the process and there were also additional dust samples taken from within and around the boiler, and extensive area around the boiler. At the request of the employees and the Union the following week, all samples whether they were done immediately following the cleanup which were - which were clear, and following samples that were taken as a matter of that request, were examined by a - NADA approved laboratory under a company named as HLA and they assessed all samples taken and no samples indicated any asbestos.
PN1521
In relation to the boiler door, how long did the cleanup take?---It was done within 24 hours.
PN1522
So that after 24 hours any exposure of any asbestos dust was removed?---That is correct.
PN1523
In relation to the sampling and the analysis that was done on that sampling in the boiler area you said?---Yes.
PN1524
About when was the all clear given for that area, that it was clear of asbestos?
---My recollection was that information was available on the - the Sunday which would have been 17 October, I am not sure whether - 17th or 18th of October.
PN1525
Was that information then given to the Union officials who had earlier raised concerns?---I understand it was, yes.
PN1526
Was that information imparted to any workers who had been in the area?---I was informed by the - the manager of HIS that that information had been passed onto the workers.
PN1527
So about when was that information passed on, either to the union or to the workers concerned?---It was passed onto the workers concerned as soon as it was known. It was advised to the unions when they - whenever they were on site.
PN1528
So the first information was available when?---I believe it would have been - I believe it was given to the employees on the Monday, 18 October, however it may have been the Sunday, I am not sure.
**** PETER ALBERT SEVELL XXN MR PHILIPS
PN1529
Anybody who cared to ask after that, that was information was imparted - - -?---It was certainly available and it was certainly provided in other discussions subsequent to that date.
PN1530
Apart from that time on 25 October when you had that tour with Mr Wallace and Mr Ayres and I think the then Safety Manager of Macquarie Generation, and that particular exposed pipe, I think you described as through a myriad of other pipes?
---Yes.
PN1531
To your knowledge in October after the boiler door had been fixed up and the samples had been taken of the analysis approved the all clear, was there any other area, apart from that particular very small pencil thin area of that pipe, shown to have exposed asbestos at the Liddell power station in October last year?---No, not to my knowledge.
PN1532
In relation to anywhere where HIS - I withdraw that, no further questions.
PN1533
THE COMMISSIONER: Mr Gee?

<RE-EXAMINATION BY MR GEE [11.32AM]

PN1534
MR GEE: Mr Sevell, you were asked eventually by my friend Mr Tanner, about an excerpt from Mr Taylor's evidence. Do you recall that?---Yes.
PN1535
Mr Tanner in effect read you an excerpt of Mr Taylor's evidence where, I am paraphrasing, he indicated that he could not say that every work area where HIS' employees would work, would be free of asbestos. Do you recall that?---Yes.
PN1536
The next question asked to Mr Taylor was, "Can you say with any certainty whether there are areas in that part of the power station, being Liddell, where you are contracted to work, that will be free of asbestos?" Mr Taylor answered, "Yes". Do you have anything to say about Mr Taylor's answer to that question?
---Can you repeat that for me please? Sorry.
PN1537
The question was could he say with any certainty whether there are areas in that part of the power station where he was contracted to work, that would be free of asbestos?---Yes.
PN1538
To which he answered yes?---Yes.
**** PETER ALBERT SEVELL RXN MR GEE
PN1539
Do you have anything to say about that question and that answer?---Not really, other than - other than to say that the boiler is not deemed to be an asbestos area per se. I have - my evidence goes to the register that indicates generally where asbestos is and the main boiler area is where HIS were working were not - not asbestos areas.
PN1540
So would you agree or disagree with Mr Taylor indicating that there were areas that they would be working that would be free of asbestos?---I agree.
PN1541
Mr Taylor was subsequently asked about that earlier evidence that Mr Tanner put to you. He was could he explain why he said that he could not in effect say that there were areas where every work area would be free of asbestos. And he said:
PN1542

It was acknowledged by Macquarie Generation that there was asbestos at Liddell power station and we could be asked to go into areas where that asbestos was.

PN1543
Now, is he correct when he says that?---If you say in that area where asbestos was, there is piping on the boiler known to contain asbestos and it is labelled accordingly.
PN1544
Yes, and Mr Taylor was then asked, "Is that of itself unsafe?" and he says, "No"?
---That is correct.
PN1545
He was then asked:
PN1546

Why?

PN1547
He answers:
PN1548

Because in the safe work methods statement and the procedures or handling or coming across asbestos, they are very clear. If you find any exposed insulation and you are unsure of what it is, then you assume it to be asbestos. Asbestos sitting there on its own does not pose a problem, when you are working on it, cutting it or whatever and the fibres start to fly around the place is when it becomes a problem. If you come into an area for argument's sake and see some damaged cladding which have exposed asbestos or something of that nature or exposed insulation and if you were unsure of what that insulation was, then you left the area and had it determined.

**** PETER ALBERT SEVELL RXN MR GEE
PN1549
Now is he correct in what he says there?---That is correct.
PN1550
I have no further questions.
PN1551
THE COMMISSIONER: Mr Gee, just for my benefit, could you identify the paragraph numbers? I presume it is the April evidence.
PN1552
MR GEE: Yes, it is the transcript of 13 April, it starts at paragraph 936 and continues through to paragraph 944.
PN1553
THE COMMISSIONER: I was trying to find it and couldn't in the thing - that is all right, thank you. Mr Sevell, I was just going to ask, and this is just a general background question, was it a common practice that power stations dating from times gone by in fact would all have asbestos material in them, because that was what was considered to be the appropriate thing at the time? In other words, it is not just Liddell?---No that is right, Your Honour. Any power station built in that period of time or prior to that would have considerable asbestos at the time it was built.
PN1554
Right, thank you?---Thank you.
PN1555
I do not think there is anything arising, I just assumed it wasn't just Liddell that had this?---No.
PN1556
Thank you, you can be excused, you are welcome to remain in the body of the court if you wish or leave, whichever you prefer?---Thank you, Your Honour.

<THE WITNESS WITHDREW [11.37AM]

PN1557
THE COMMISSIONER: Mr Gee?
PN1558
MR GEE: I call Mr Peter Knott.
PN1559
THE COMMISSIONER: I think Mr Philips you wish to stay for this evidence as well, don't you? In case there may be some - - -
PN1560
MR PHILIPS: Indeed, and even though Mr Knott is no longer an employee of Macquarie Generation, I think he should be given the opportunity to at least take the same privilege because it is still within that two year period.
PN1561
THE COMMISSIONER: Yes. Yes Mr Gee.

<PETER GREGORY KNOTT, SWORN [11.37AM]
<EXAMINATION-IN-CHIEF BY MR GEE

PN1562
MR GEE: Mr Knott could you state your full name and address for the record please?---Peter Gregory Knott (address supplied.)
PN1563
Your current occupation?---I am currently a Senior Occupational Hygienist with 3M Australia.
PN1564
Your prior occupation?---I was the Corporate Safety Manager for Macquarie Generation.
PN1565
When did you finish in that role?---December last year.
PN1566
How long had you been in that role?---I had been with Macquarie Generation just over three years.
PN1567
MR PHILIPS: Yes, can I just make this observation and let Mr Knott know who I am. I am appearing here for Macquarie Generation as legal counsel for them and I have intervened in these proceedings on their behalf. You are entitled to a privilege insofar as you might be asked some questions regarding occupational health and safety matters. What that privilege means is that if for argument's sake any of the events which were the subject of these proceedings last year which related to exposure of asbestos at the Liddell power station, if any prosecution was launched against you personally for any comment you make here today in relation to any of the matters which you may be asked you are entitled to claim a privilege. But what you need to do is, so that you personally are protected, you need to say now whether you wish to claim such a privilege so that any answers you would give here today could not be used against you.
PN1568
THE WITNESS: I would wish to claim privilege then.
PN1569
THE COMMISSIONER: Thank you. Yes Mr Gee?
PN1570
MR GEE: Mr Knott, you would be aware that in around about October last year there was a major outage at the Liddell power station?---Yes.
PN1571
At the time you were responsible for occupational heath and safety matters at that power station?---Yes.
PN1572
Is there a folder of material in the witness stand with you?---No, there is no folder.
**** PETER GREGORY KNOTT XN MR GEE
PN1573
THE COMMISSIONER: Maybe Mr Sevell has taken it?
PN1574
MR GEE: I am sorry Mr Knott, I won't be a moment. I might come back to that.
PN1575
THE COMMISSIONER: Unless you want to have my copy, Mr Gee, although in fact my associate has gone at the moment too.
PN1576
MR GEE: I will battle on and maybe I will come back to it shortly. Do you recall in the course of that outage there were some issues raised about asbestos and other things. Do you recall that?---Yes I do.
PN1577
May I approach?
PN1578
THE COMMISSIONER: Yes, Mr Gee, thank you.
PN1579
MR GEE: For the record I am showing the witness annexure G to AMWU1. Mr Knott have you seen that photograph before?---Yes.
PN1580
Can you tell me how you came to see that photograph?---I was provided with a CD of photographs just after they were taken, that had one of those was on it - that was on the photographs.
PN1581
Who provided you with the CD with those photographs?---Daniel Wallace.
PN1582
He is an AMWU official?---Yes, well he was then.
PN1583
What did you do after you had viewed this photograph?---I - that was in an afternoon, I went over there the next day I believe and looked for that. That was at - at Bayswater power station, and I looked for it, could not find it but subsequently a couple of days later I was with I think Daniel and some other union guys over there and it was - it was a blue asbestos labelled asbestos only bin, up against another demountable building. It was not in that position, it was not there, so.
PN1584
Were you there when this photo was taken?---No I was not, no.
PN1585
So you say you visited this location after the photograph was taken?---Yes.
PN1586
You said you couldn't find it?---No, I couldn't.
**** PETER GREGORY KNOTT XN MR GEE
PN1587
So how did you come to find the bin?---A couple of days later we were over there with, like I said, the union guys and it was pointed out to me that there's the bin there and it was up against some other demountable buildings.
PN1588
Was it in the same position where this photo had been taken?---No, it wasn't.
PN1589
Was it in the immediate vicinity?---It was - no, it wasn't in the immediate vicinity. It was, sort of, located around the back, behind some other demountable buildings.
PN1590
Did you inspect the bin?---Yes, I did. I had a look.
PN1591
What did you find?---There was nothing in it.
PN1592
The document that you have, if you could turn to the page behind the tab
marked H. Can you see a page with two photographs on it?---Yes.
PN1593
Again if you turn the page behind the table marked J is a further photograph?
---Yes.
PN1594
Are you aware of what that location is?---Yes.
PN1595
Could you tell me what you understand that location to be?---It's an old bathhouse on the Liddell power station site.
PN1596
Were you there when those photos were taken?---No, I wasn't there when those photos were taken.
PN1597
Have you seen these photographs before?---Yes, I have seen them before.
PN1598
How did you come to see those photographs?---I'm not sure if they were on CD, but I was shown them during the course of the, I guess, discussions and issues that were going on at Liddell.
PN1599
Do you recall that this toilet facility was ever raised as an issue by the AMWU with you?---It was raised at meetings that I was present.
PN1600
What in particular was the concern with the facility?---There was material on the floor, there was insufficient hanging space or something, was raised.
**** PETER GREGORY KNOTT XN MR GEE
PN1601
Do you recall what, if anything, Macquarie Generation did about this facility once it was raised?---It was my understanding that we cleaned it up and sort of, I guess, made it safe for people to enter.
PN1602
Do you recall or are you aware how long that might have taken between from when the issue was raised to when that occurred?---I wouldn't know. I can't recall exact times.
PN1603
How did you come to leave the employ of Macquarie Generation, Mr Knott?---I became aware of a job with 3M. I've got a, or had a long association with 3M and the work that this current job presented me was something that I've always enjoyed and I took the opportunity to apply for the position and got the job.
PN1604
Was it ever suggested to you that you should look for other employment?---No, it was never.
PN1605
Were you ever told your employment with Macquarie Generation was at risk?
---No.
PN1606
Were you ever threatened with dismissal?---No.
PN1607
Those are my questions.
PN1608
THE COMMISSIONER: Did you want to say anything else?

<CROSS-EXAMINATION BY MR PHILIPS [11.47AM]

PN1609
MR PHILIPS: I just have a quick - that facility which I think you were shown some photographs of, I would suggest to you that was not provided to the contractors, but another one was?---That may well have been the case.
PN1610
The other one which was provided, that didn't have any of those sort of problems?---No, not - - -
PN1611
You're not aware?---I'm not aware of that.
PN1612
Okay.
PN1613
THE COMMISSIONER: Mr Morrison?

<CROSS-EXAMINATION BY MR MORRISON [11.48AM]

**** PETER GREGORY KNOTT XXN MR MORRISON
PN1614
MR MORRISON: Thank you. Just further to the question Mr Philips took you to, are you aware when the alternate facilities were provided to contractors?
---Once again, I'm not - I don't recall the exact times.
PN1615
What was the nature of your role at Liddell?---I provided advice and looked after the provision of, I guess, health and safety services for both Liddell and Bayswater.
PN1616
Did you participate in the occupational health and safety committees that were in existence?---I was an ex-officio member.
PN1617
What was the general operating status of the occupational health and safety committees at the power station?---Quite good.
PN1618
Who were members, from your recollection?---There were elected members from, I think, just about all the work groups. A couple of management representatives. Our elected chairman from the employee group.
PN1619
Did they meet regularly?---Yes.
PN1620
Do you recall in October last year whether there were any meetings of the committee?---I don't know if there was exact one in October.
PN1621
Do you recall any meetings of the committees where the issue of asbestos was discussed?---No, I don't. I don't recall any meetings where it was specifically, that was an agenda item. There may well have been.
PN1622
Do you recall any meetings outside of the OH & S committees with health and safety representatives about asbestos?---There were some discussions in relation to ash pipes, ash dust, ash lines, and painting those and controlling exposure of ash lines.
PN1623
Do you recall any meetings or discussions with health and safety representatives in October dealing with asbestos?---I don't recall any specific meetings.
PN1624
You don't recall. Are you aware of any that occurred that you may not have attended?---There may have been. Once again, I can't - I don't recall.
PN1625
You don't recall any?---No.
**** PETER GREGORY KNOTT XXN MR MORRISON
PN1626
Do you recall any meetings with employees who weren't members or weren't of the occupational health and safety committee or health and safety representatives over the issue of asbestos?---Employees who weren't?
PN1627
Employees of either Macquarie Generation or HIS or any of the other sub-contractors?---Well, we sub - I thought you were referring to employees of Macquarie Generation.
PN1628
Okay. With any of the other sub-contractors?---Yes, there were.
PN1629
What happened at those meetings?---Specifically, I can't recall the exact details.
PN1630
To the best of your knowledge, what can you recall?---There was - we discussed the labelling of asbestos, monitoring results from clearance monitoring that had been conducted and provision of an asbestos register to those people.
PN1631
So you do recall some discussions about the asbestos register?---Insofar as, you know, provision of that register to all of the employees.
PN1632
Do you recall any discussions about the accuracy of the asbestos register?---Yes. The - yes.
PN1633
What happened at those discussions?---The boiler doors that had previously been considered understood to be asbestos free in - weren't. So they were added to the register.
PN1634
So the boiler doors were added to the register. That was in October, to your recollection?---As soon as we became aware that they were asbestos containing, yes.
PN1635
So, when asbestos is removed - and we have heard evidence that asbestos is constantly being removed over a program from the power station - it is removed from the register?---There would be either removal or a note added to the register.
PN1636
When it is found, is it added to the register?---When we become aware of it, yes.
PN1637
How regularly, to your recollection, is new areas of asbestos found that wasn't on the register and then added to the register?---Not regularly.
**** PETER GREGORY KNOTT XXN MR MORRISON
PN1638
How often then?---I couldn't speculate on a frequency. Whenever it's found, we put it on.
PN1639
I understand. Who puts it on?---There were a number of people, boiler engineers, turbine engineers. If they became aware, they could add it to the register.
PN1640
Whose responsibility is it though to ensure that when asbestos is found, it is added to the register?---The notation went to the - I think it went to the, sort of, manager's secretary who looked after that document and added it and updated it, and reissued a new one through the, sort of, the intranet.
PN1641
Then, so all employees are then made aware of this addition to the register?
---Whenever there were changes to any power station standing instructions, they were communicated through an email to all Macquarie Generation employees.
PN1642
So, if an engineer finds asbestos - or the possibility of asbestos, or it has to be termed as asbestos - it is added?---I think it would have been tested.
PN1643
Tested. So it gets added to the register once it has been confirmed that it is asbestos?---I guess, yes, that would be the process.
PN1644
So you don't know whether that's the process or not?---My experience when I had - at the time when things were added to the register, that's how it worked, that was the process.
PN1645
So, an engineer finds a suspected substance, a substance he suspects is asbestos, and then he notifies the manager's secretary to add it to the register. Is that the process?---Or they would make a notation, or they would make a notation on the document and then get it changed.
PN1646
Then the boss's secretary sends a memo or an email to all employees or to the occupational health and safety committee. Who does she send the email to to alert them of the - - - ?---Whenever any power station's standing instructions changed, an email went to, sort of, all Liddell employees, this power station's standing instructions have been changed.
PN1647
Okay. All Liddell employees? The employees of sub-contractors as well as direct employees of Macquarie Generation?---It was an email that went to all Liddell - in the mail group. I don't know, there may well have been other people on that email group, I don't know.
**** PETER GREGORY KNOTT XXN MR MORRISON
PN1648
So, when the exposure from the boiler door occurred, how long from that being found, that exposure occurring, to a message being sent to all the employees? To your knowledge, what would be the time delay?---I don't know what the time delay was.
PN1649
When you went to and viewed the bin over at Bayswater - you gave us evidence on that. Your evidence was that when you finally found the bin, it wasn't in the same location as when the photo was taken. Is that correct?---Yes, that's correct.
PN1650
Did you make any further enquiries as to who owned the bin?---I don't recall what, after that, what happened after that.
PN1651
Did you make any enquiries as to whether the bin was owned by Macquarie Generation?---I don't know. I may not have. I don't know.
PN1652
Well, can I ask you to look at the photo in attachment H again of that bin.
PN1653
THE COMMISSIONER: I think that's G, Mr Morrison. The showers are H.
PN1654
MR MORRISON: G, sorry, yes. And that's not a particularly clear photo.
PN1655
THE COMMISSIONER: Well, does it help if - I know we had this discussion the last occasion - because I have the colour one, whether the witness?
PN1656
MR MORRISON: I've actually got the blown up colour one with me, Commissioner. That may be more helpful.
PN1657
Did you see a colour photo of the bin when you saw the photos from that CD?
---Yes.
PN1658
So, looking at that photo, do you notice that on the bin there seems to be a plastic bag exposed at the top of that bin? Is that correct?---There's something there, yes.
PN1659
There's something there. But you said when you went and finally found that bin in a different location, there was nothing in that bin?---Yes.
PN1660
Were you concerned that something that was in an asbestos only bin had been removed and that you had no knowledge of it?---Not really.
**** PETER GREGORY KNOTT XXN MR MORRISON
PN1661
Not really?---No.
PN1662
You weren't concerned as an occupational health and safety hygienist, as the corporate safety manager for Macquarie Generation, that someone had removed something from an asbestos only bin and you didn't know about it? You had no concern about that?
PN1663
MR PHILIPS: Well, I object to that, Commissioner. There's three questions in that. To the extent that, you know, he's got to establish that he knew there had been something in there before and that someone had removed it. Well, there's at least two questions in there which suggest he has some sort of earlier knowledge.
PN1664
THE COMMISSIONER: Yes.
PN1665
MR MORRISON: Were you aware that there was something in the bin prior to your actually viewing it?---No.
PN1666
So you never looked at the photos subsequent to you finding the empty bin?---I saw this photograph and went to view the situation myself and couldn't find it.
PN1667
Why were you concerned to go and see it yourself?---Because I had been asked - I think I got asked by Mr Wallace to look at it or to go over and have a look at it.
PN1668
You personally though, did you think it was worthwhile going over in your position?---I went over - there were a number of other photographs - and I went to have a look at the situation myself.
PN1669
By itself, did you think it warranted you investigating it?---In the context of everything that was going on at the time, not really.
PN1670
In the context of everything that was going on at the time. You were aware that the workers were taking action at that time?---I was aware there was action occurring.
PN1671
You were aware there was action occurring. Were you aware what the action was occurring over?---A range of issues.
PN1672
A range of issues. Was one of those issues asbestos?---At Liddell.
**** PETER GREGORY KNOTT XXN MR MORRISON
PN1673
At Liddell. Was there action occurring at Bayswater?---Yes.
PN1674
Was one of those actions occurring at Bayswater because of asbestos? I'll put it to you it was?---Okay, yes. It was mainly, I guess, over amenities and - yes.
PN1675
Had they explained to you why they were taking action over amenities in relation to asbestos?---The provision of showers, yes.
PN1676
Why did that concern them in relation to asbestos?---I guess they were concerned that they would contaminate other areas with asbestos fibres.
PN1677
Didn't they tell you actually they could take asbestos fibres home with them?
---There was a possibility that that could occur, I guess.
PN1678
That was actually put to you, wasn't it?---I don't recall that.
PN1679
You don't recall that. So you concede though it was a possibility?---It's commonly, I guess, accepted.
PN1680
So you went over to Bayswater to view this bin. You couldn't find it and then you found it in another location, empty. Is that correct?---Yes.
PN1681
You made no subsequent enquiries as to how the bin got moved or how it was emptied. Is that correct?---I believe so.
PN1682
Well, did you or didn't you?---I probably asked a few people, but I can't recall who they are.
PN1683
Who would you have asked?---I know contractors around the area.
PN1684
Which contractors would you have asked?---There's a whole range of contractors in that area.
PN1685
So, you felt that anybody was worthwhile asking as to what occurred with that bin?---I asked a number of people when I saw them where the bin was and what was - where it had been.
PN1686
Why did you ask them?---Probably out of - I wanted to know what had occurred and that was - I can't recall the specifics.
**** PETER GREGORY KNOTT XXN MR MORRISON
PN1687
Why did you want to know what occurred? Were you concerned that there may have been asbestos in that bin?---My understanding was that Bayswater had very limited numbers of asbestos items, that they were confined to a small number of pieces of plant and that the rest of the site was asbestos free.
PN1688
So you weren't concerned that someone had actually just dumped asbestos in that bin though, were you?---Not overly, no.
PN1689
You weren't concerned about that?---No. I thought the likelihood of that occurring was very low.
PN1690
It didn't warrant a full investigation by you?---I went and had a look to find out for myself and couldn't find it.
PN1691
But you found an empty bin later?---I found an empty bin a couple of days later.
PN1692
Then you made some enquiries with some of the sub-contractors to find out if anybody knew anything about the bin. Is that correct?---Yes.
PN1693
No-one knew anything about it?---I can't recall the exact replies that I got, but it didn't really warrant, I guess, a full investigation or anything like that.
PN1694
All right. Can I take you back to Liddell and the action that was occurring at Liddell at the time? Subsequent you were aware that orders were issued against the workers by this Commission on the 26th of October?---Yes.
PN1695
Did you have any discussions with any workers of either Macquarie Generation or of the sub-contractors subsequent to the issuing of those orders about asbestos or suspected asbestos at Liddell power station?---Yes. There were discussions.
PN1696
What were those discussions about?---About labelling, labelling issues. Like I said before, the monitoring results and, yes, that's probably - - -
PN1697
The workers raised with you subsequent to the issuing of the orders concerns they still had about asbestos in the workplace?---Yes, yes. I guess they were.
PN1698
Do you recall which workers in particular raised those concerns with you?---No. I don't recall which exact workers, no.
**** PETER GREGORY KNOTT XXN MR MORRISON
PN1699
Were they workers in an official capacity, in other words occupational health and safety representatives, or were they general workers?---I don't recall what their capacity was.
PN1700
You don't recall what capacity. You don't recall their names, even first names?
---There were some guys from PPW.
PN1701
PPW being another sub-contractor?---Yes. HIS, Halstone. That was part of a consultative group.
PN1702
They raised with you concerns about asbestos at the site after the orders were issued?---I'm not sure if it was after the orders issued. I don't recall the timing of that.
PN1703
No further questions.
PN1704
THE COMMISSIONER: Mr Tanner?

<CROSS-EXAMINATION BY MR TANNER [12.08PM]

PN1705
MR TANNER: Briefly, Commissioner.
PN1706
Mr Knott, you spoke about the discovery of asbestos in the boiler doors?---Yes.
PN1707
I understood you to indicate that that was a surprise that there hadn't been an understanding prior to that that those doors contained asbestos?---Yes.
PN1708
Was that a shock to you?---Yes.
PN1709
Why?---A site of that age and the amount of work that had gone, it was a shock. I thought we would have known.
PN1710
Well, basically, surely that brought home to you that your assumptions about where the asbestos were and the reliability of your register were now on a rather shaky ground?---Only in that instance, for that particular boiler.
PN1711
Well, as it turned out, if you were wrong about the boiler doors, you couldn't be confident that you were correct about everything else?---I don't believe that to be the case.
**** PETER GREGORY KNOTT XXN MR TANNER
PN1712
Well, why? If you were wrong about the boiler doors, on what possible basis can you say that you were right about anything else?---There had been surveys done in the past that had taken samples and identified the sources of asbestos and they were on the register.
PN1713
Well, how do you explain the boiler doors and why your assessment that the boiler doors were free of asbestos was unreliable?---I can't explain the boiler doors.
PN1714
Well, let's just reflect then on anything else. If you were wrong about the boiler doors, how can you say - and you're on oath here - that you were right about everything else?---Where there had been samples taken and confirmed as asbestos, they were all right, we knew that those samples and those locations had asbestos in them.
PN1715
What about where samples had not been taken?---Then it is, I guess, up to other sorts of records, materials that we used in construction, that sort of stuff.
PN1716
It was possible, was it not, that there was asbestos in other parts of the factory, in other parts of the Liddell power station, which had not been identified?---Yes.
PN1717
No further questions, Commissioner.
PN1718
THE COMMISSIONER: Yes, Mr Gee?

<RE-EXAMINATION BY MR GEE [12.11PM]

PN1719
MR GEE: You were asked some questions by Mr Morrison about the action that had been taken at Bayswater. Do you recall that?---Yes.
PN1720
You were also asked some questions about whether you were aware that asbestos was a reason for the taking of action, and your answer was "Yes, at Liddell". Do you recall that?---Mm.
PN1721
In respect of the action that was taken by employees at the Bayswater power station, was asbestos a reason, to your knowledge, why - or the presence of asbestos, was that a reason for employees at Bayswater removing themselves from the workplace?---Yes. In the fact that they didn't have a register or weren't provided with a register, was probably a reasonable - - -
**** PETER GREGORY KNOTT RXN MR GEE
PN1722
I'm asking if you're aware?---No. I'm not exactly aware, no.
PN1723
No further questions, Commissioner.
PN1724
THE COMMISSIONER: All right. I think we'll excuse Mr Knott. You can stay in the Court room if you wish or leave. Thanks for coming on.

<THE WITNESS WITHDREW [12.12PM]

PN1725
THE COMMISSIONER: Now, Mr Gee, you've got Mr Winegardner as well, who I gather is there. Do you wish to go on with him now, or?
PN1726
MR GEE: I will be very brief with Mr Winegardner, I don't of course - I'm not aware of what my friends intend to do, but I won't be more than five or 10 minutes with Mr Winegardner.
PN1727
THE COMMISSIONER: Right, so it's presumably best that we go on with him. He is here, isn't he?
PN1728
MR GEE: Yes, he is.
PN1729
THE COMMISSIONER: Now, presumably, Mr Philips, I'm not saying you can't remain, but presumably you don't have a specific interest in this witness?
PN1730
MR PHILIPS: I don't know what he's going to say, but I mean, secondly, I will stay because, only for the simple reason that I'll listen to what the submissions are made by all the parties at the bar table and if there's anything which touches upon me, then I might then make an application to make any submissions, but it just depends if anything's said which in any way kind of invokes my eye, well, I'll say something. But otherwise, in accordance with your earlier warning - - -
PN1731
THE COMMISSIONER: I don't think it's a warning, Mr Philips.
PN1732
MR PHILIPS: - - - I'll be silent.
PN1733
THE COMMISSIONER: Righto. The only thing is, I suppose I should put you on a little notice that I think ominous words were uttered at some earlier occasion about desires for written submissions. I don't know whether there's been any further, but whether that's a - - -
PN1734
MR GEE: Perhaps I could answer. It is the fervent belief of all that we conclude this with oral submissions today.
PN1735
THE COMMISSIONER: That's wonderful news, Mr Gee. I thought that on a previous occasion there were suggestions of written submissions being made. But look, that's fine, I'd prefer oral submissions, I think, despite Mr Tanner's observations on the previous occasion about good books, I think we can probably all be glad to turn the final page. So, yes. Sorry, Mr Winegardner.

<SCOTT WINEGARDNER, SWORN [12.14PM]
<EXAMINATION-IN-CHIEF BY MR GEE

PN1736
MR GEE: Mr Winegardner, could you state your full name and address for the record, please?---Scott Winegardner, (address supplied).
PN1737
You're here under summons, is that correct?---Yes.
PN1738
Could you state your current occupation?---I'm a coal miner, Beltana Colliery.
PN1739
And your previous occupation?---Peggy for HIS Engineering, or cleaner, yes.
PN1740
When you say "peggy", you mean cleaner. Is that correct?---Cleaner.
PN1741
Who was your employer?---HIS.
PN1742
Were you employed in that capacity during an outage at Liddell power station last October?---I was.
PN1743
Mr Winegardner, can you describe the amenities that HIS provided to its employees at the commencement of that outage?---They were demountable toilets, approximately about eight to 10, yes, with wash basins and plus site sheds with tea, coffee, hot water, urns.
PN1744
Did HIS provide water to its employees?---Yes, we had got water from Nosserbrook.
PN1745
And how did that - - - ?---It come in 20 litre drums. And we also had a tap at Liddell power station with two water cleansing things on it.
PN1746
Are you aware that in the course of that outage issues were raised about the provision of amenities by HIS to its employees?---No.
PN1747
In the course of that outage, so after that outage began, did HIS ever provide any more amenities?---Yes, they did.
PN1748
Can you tell me how that happened?---They provided shower blocks and a dress change room.
PN1749
Were you involved in the arrangements to provide those amenities?---Yes. I did work on them.
**** SCOTT WINEGARDNER XN MR GEE
PN1750
When did that happen, Mr Winegardner?---We worked on it on a weekend. We plumbed it all up and - - -
PN1751
And you plumbed up the shower?---Shower facilities, yes.
PN1752
When did those facilities arrive on the site?---A week prior.
PN1753
You say that you then worked to plumb up those facilities over a weekend?
---The Saturday and the Sunday, yes.
PN1754
When did they become available to be used?---The Monday. They were right that Sunday afternoon.
PN1755
Do you recall a particular date as to?---No, no.
PN1756
If I suggested to you it would be in October last year?---Well, it was during that outage.
PN1757
Were you responsible for cleaning those amenities once they were provided?---I was.
PN1758
Are you aware whether those facilities were ever used by HIS employees?---Not very often, no. Probably one bloke, two blokes at the most. That was for a short period of time.
PN1759
After those facilities had been made available?---Yes.
PN1760
Are you aware - I'll withdraw that. Those are my questions, Commissioner.
PN1761
THE COMMISSIONER: Thank you. Mr Morrison, are you going first, or Mr Tanner? I know it's been a bit changeable.
PN1762
MR MORRISON: I don't think I have any questions at this time, Commissioner.
PN1763
THE COMMISSIONER: Right. Mr Tanner?
PN1764
MR TANNER: I don't either.
PN1765
THE COMMISSIONER: You don't really have an interest, Mr Philips. Well, that seems to be it, Mr Winegardner.
PN1766
THE WITNESS: Thank you.
**** SCOTT WINEGARDNER XN MR GEE
PN1767
THE COMMISSIONER: Thank you for coming to give your evidence. You may remain in the Court if you wish or leave.

<THE WITNESS WITHDREW [12.18PM]

PN1768
THE COMMISSIONER: That's - well, subject to perhaps recalling Mr Taylor later dependent upon the evidence of Mr Purviss, that's your evidence, isn't it,
Mr Gee?
PN1769
MR GEE: It is, Commissioner.
PN1770
THE COMMISSIONER: I'm just wondering, are we aware whether Mr Purviss is here and do we want to hear his evidence if he is here, or?
PN1771
MR MORRISON: Commissioner, firstly, I've not seen Mr Purviss or Mr Wallace, who is accompanying Mr Purviss, so they're not here. Perhaps it might be opportune to take a luncheon break so I can find out where they are because, as you would be aware, they were supposed to be here at 10 o'clock, and they haven't arrived, so I'm a bit concerned about that. Then we, I suppose, play it by ear depending on what the answers I receive are.
PN1772
THE COMMISSIONER: Yes. Are you content with that course, Mr Tanner?
PN1773
MR TANNER: Yes, I am.
PN1774
THE COMMISSIONER: Mr Gee, are you - I mean, it probably would have been better to get the evidence out before lunch but, if they're not here.
PN1775
MR TANNER: I'm of that view. Would it be possible for Mr Morrison to take a short adjournment to find out where his witness is before we decide to break for lunch? Because if he's not going to be available, we can move straight into submissions, in my respectful submission.
PN1776
THE COMMISSIONER: Well, it depends if he - it might be that he's just not physically present at the moment. Maybe we could, in the first instance, perhaps just take a 10 minute break, Mr Morrison, and see if you can locate him. Then we'll come back and depending upon what's happening, we'll either have a luncheon break then, or have a proceedings. Are you right with that, Mr Tanner? I was just wondering whether you were about to make some other submission?
PN1777
MR TANNER: No.
PN1778
THE COMMISSIONER: Right. Mr Philips, you're right with that, I presume, are you?
PN1779
MR PHILIPS: Yes, I'm fine with that.
PN1780
THE COMMISSIONER: Good. Okay, well, we'll break until, say, 12.30. If he turns up earlier, you can let my associate know.
PN1781
MR MORRISON: Thank you, Commissioner.
PN1782
THE COMMISSIONER: Thanks.

<SHORT ADJOURNMENT [12.20PM]
<RESUMED [12.32PM]

PN1783
THE COMMISSIONER: Yes, Mr Morrison?
PN1784
MR MORRISON: Unfortunately, Mr Purviss won't be being called, so we have no further witnesses to put. On that basis, unless someone else has someone else they wish to call, we would be seeking perhaps we could have an adjournment for lunch and then after lunch, we will be in a position to put our closing submissions.
PN1785
THE COMMISSIONER: So you have no more evidence?
PN1786
MR MORRISON: No, Commissioner.
PN1787
THE COMMISSIONER: Mr Tanner has no more evidence, and Mr Gee, in view of Mr Purviss not coming along to give evidence, you won't need to
recall - - -
PN1788
MR GEE: No, Commissioner. That's right.
PN1789
THE COMMISSIONER: And Mr Philips doesn't have any witnesses. Well, that disposes of the evidence. It's probably useful if perhaps we do have a break, then, before submissions because obviously the evidence that has been put this morning, it will give all of you time to reflect upon that and then work on your submissions. How long do you want? Would an hour be sufficient for lunch, given that we're breaking early, or we can have less if you'd prefer? I don't mind. Everyone's looking at you, Mr Tanner.
PN1790
MR MORRISON: Well, an hour and a quarter, actually, Commissioner, just to be on the safe side with any more thoughts.
PN1791
THE COMMISSIONER: I am sure an extra 15 minutes will be useful. So in other words, what, a quarter to 2, you're saying, Mr Morrison?
PN1792
MR MORRISON: Yes.
PN1793
THE COMMISSIONER: Mr Tanner, you're all right with that?
PN1794
MR TANNER: I am happy with that. I am sure we'll see the value of those 15 minutes.
PN1795
THE COMMISSIONER: Of the extra 15 minutes; we expect them to be that much better, Mr Morrison, by the extra 15 minutes. We'll all give you a mark at the end. Mr Gee?
PN1796
MR GEE: I am happy, Commissioner.
PN1797
THE COMMISSIONER: Mr Philips, I presume that you will have no difficulty with that?
PN1798
MR PHILIPS: No, Commissioner.
PN1799
THE COMMISSIONER: In that case, we'll adjourn until 1.45. Thank you.

<LUNCHEON ADJOURNMENT [12.34PM]
<RESUMED [1.47PM]

PN1800
THE COMMISSIONER: It's your application, Mr Morrison.
PN1801
MR MORRISON: Thank you, Commissioner. Despite the additional 15 minutes, I have failed, I think, despite the additional time, but I will start. Commissioner, the Australian Manufacturing Workers Union made the application to the Commission for the setting aside of orders issued by yourself on 26 October 2004. Those orders were to stop what you considered to be industrial action occurring by employees of HIS Engineering Services. Over several days of hearings, you have heard and have been shown a considerable amount of evidence over the situation what happened at Liddell and Bayswater power stations.
PN1802
Commissioner, the union says this; the one constant fact as we see it that the employees of HIS Services took the action they did because they had a reasonable concern about an imminent risk to their health and safety, and possibility to that of their family and friends, their friends' health and safety. We also say that the evidence shows that the workers were prepared and offered to do work in other places, as long as it was safe and appropriate. None of that evidence, we say, was contested. It was HIS Services that let them sit in the crib room once the employees made it clear they would not go to the areas they considered unsafe.
PN1803
Now, Commissioner, we say that the evidence of Mr Henry from the union is quite important, when he took the Commission to the concept of exclusion zones, and I will refer the Commissioner specifically to paragraphs 561 to 567 of the transcript from the hearing of 13 April 2005. Mr Henry also spoke quite graphically of the dangers of exposure to asbestos and of his knowledge of the broader community's awareness about the potential outcome of any exposure. I would like to draw the Commission's attention where he spoke of those community concerns and that's found in paragraphs 582 and 583 also of the April 2005 transcripts.
PN1804
Commissioner, the evidence of Brett Mudford, we say, you should have uppermost in your considerations of this matter. You heard evidence directly from a worker at the site as to what was in his mind and there can be no doubt, we submit, that his concerns - he was very, very clear in what was going through his mind. To support this, I believe the Commission should be reminded that many workers chose to simply walk away from HIS Services' employment, rather than return once the orders of the 26th were issued. Commissioner, we say this; it is simply the right thing to do to set aside your orders. Workers must be able to take action to protect themselves, given the circumstances that have been presented to you.
PN1805
We believe that the onus is on the union to establish that there was a reasonable concern, and we believe that we have clearly done that. Commissioner, we say that when you look at all the evidence, we believe that our application should be agreed to. Commissioner, to sum up, there is a great deal of evidence that's been put before you. Very little of it of relevance is contradictory. It is simply, we say, to you to review it and we say to make an appropriate decision with regard to your order. Nothing further, Commissioner.
PN1806
THE COMMISSIONER: Thank you, Mr Morrison. Mr Tanner?
PN1807
MR TANNER: Thank you, Commissioner. I will be brief. We have no dispute that there was an issue relating to asbestos at the Liddell Power Station in October 2004. What is important is that prior to 14 October 2004, there were no sources of dispute of any kind between the parties. What that indicates is that the discovery of exposed asbestos in a boiler door on 14 October 2004 is the material moment for your consideration and it is a moment which involves identification of a hazard to the health and safety of employees. That is not disputed by me, by the respondent - and when I say the respondent, I am referring to the company.
PN1808
Similarly, it is not disputed by Macquarie Generation on behalf of whom two persons gave evidence today. Mr Sevell, after initially suggesting that there was no problem - and it's unclear as to why he was coy initially about acknowledging that the presence of asbestos at the Liddell Power Station is a product - proceeded to acknowledge that that particular facility has an asbestos presence and that there is the possibility - and that is the term which he acknowledged, there is a possibility - that that presence may pose a risk to employees.
PN1809
Having regard to the fact that there was no issue prior to 14 October, the respondent in these proceedings must have difficulty in trying to explain how it is that subsequent to 14 October, the issues being pursued by the employees were industrial matters unrelated to the issue of asbestos exposure which was identified on the 14th. I put to Mr Sevell this morning, and similarly to Mr Taylor himself, Mr Taylor's evidence at the time of making application for the orders, and particularly evidence at PN179 where he conceded before you that he could not say that all areas of the Liddell Power Station were free of asbestos.
PN1810
Evidence led today by Mr Knott was that he was shocked about the identification of exposed asbestos in the boiler doors. That illustrates, Commissioner, that the person at the power station with responsibility for safety had, prior to identification of exposed asbestos in the doors of the boiler, believed that there was no such presence in those doors. Now, if that is the case, what that surely indicates is that the view which the landlord, or for that matter, HIS may have had about the extent of the risks, is unreliable. When the matter came before you in October of 2004, the question of health and safety was a live one.
PN1811
It is unfortunate that the unions did not provide evidence to you at that stage, but there certainly was before you I submit, Commissioner, an indication that health and safety issues were of relevance. It was certainly open to you at the time, having regard to what was before you, and moreover, having regard to concerns you expressed about the fact that you were making an order without the benefit of the unions' version, it was I submit, scope for you to provide in your orders for the exception in relation to questions of genuine health and safety concerns to be incorporated into your orders.
PN1812
The unions are seeking a revocation of the orders which you made. In the alternative what they seek is that those orders be supplemented, obviously retrospectively, with the usual exception which would relate to the health and safety factor. The concern that the unions have is that the granting of those orders is suggestive of wrongdoing on their part and is suggestive of no health and safety issue being relevant. By retrospectively varying your orders, we submit that what you will do is correct the record and it will be a correction which can entail no prejudice to the respondent.
PN1813
For that reason, on behalf of the AWU, I suggest that the appropriate orders would be either having regard to the health and safety issues which have now been led before you with clarity, that the orders which were granted in October be revoked; alternatively, that you make provision for the health and safety exception.
PN1814
THE COMMISSIONER: Mr Tanner, could I just ask you - I suppose it's a technical question - Mr Morrison refers to the application as being to set aside, and you refer to them as to revoke. I just wanted to clarify, in case there's some issue later on, is there in essence any difference in that?
PN1815
MR TANNER: No. When I use the term revoke, my submission is on the basis that the orders should not have been made in the first.
PN1816
THE COMMISSIONER: Issued in the first place.
PN1817
MR TANNER: And that they should be, as it were, scrapped. Alternatively, if they are to remain, they need to be corrected to reflect the contest.
PN1818
THE COMMISSIONER: Thank you. Mr Gee?
PN1819
MR GEE: Commissioner, do you have handy a document previously filed on 7 April, being the outline of submissions on behalf of my client?
PN1820
THE COMMISSIONER: It's probably here somewhere, Mr Gee. It hasn't been marked as yet, has it?
PN1821
MR GEE: It hasn't.
PN1822
THE COMMISSIONER: There's a covering letter of 6 April, is that the document? Actually, whether that came - I am not sure. I then have an outline of submissions by HIS Engineering Services.
PN1823
MR GEE: I have an additional copy. If that's stamped received on 7 April, Commissioner, that's the document to which I refer.
PN1824
THE COMMISSIONER: Unfortunately, it doesn't seem to be stamped.
PN1825
MR GEE: I have an extra copy.
PN1826
THE COMMISSIONER: It's signed by you and dated 6 April, and it's 26 paragraphs, ending in Authorities, is that - - -
PN1827
MR GEE: That's the one, yes.
PN1828
THE COMMISSIONER: Right. Yes.
PN1829
MR GEE: I note the Commission admitted the AMWUs outline as AMWU1. I am in the Commission's hands as to whether you'd like to do similarly with this document?
PN1830
THE COMMISSIONER: There's always an issue about marking submissions, but if we have marked one, it's - - -
PN1831
MR GEE: Well, I don't press it.
PN1832
THE COMMISSIONER: - - - probably preferable to mark yours as well. I presume there's no difficulty with that, Mr Tanner or Mr Morrison, is there?

EXHIBIT #HISG OUTLINE OF SUBMISSIONS DATED 06/04/2005

PN1833
MR GEE: I don't intend to read those, but I do adapt and rely on them, Commissioner. Just briefly, I wish to address those submissions. Paragraph 11 of that document refers to the Commission's discretionary power, and we submit the discretion is to be guided by the principles that go to the merits of making or refusing to make an order under section 127 of the Act, and we rely on the Rheem authority referred to in that document at paragraph 36 in support of that submission. Similarly, we rely on that authority in respect of the following paragraph 12.
PN1834
Paragraph 13, in our submission, for the reason that the order has expired, there's no reason for the Commission to satisfy itself it would be appropriate to set aside, revoke or vary the order. Further, that any such decision would have no practical consequence for the reason the order has expired and is no longer in force. Now, in support of that submission, I would refer the Commission to the ANZ case at paragraph 29. That's the ANZ Banking Group Ltd decision of the Full Bench of the Commission on 8 September 2004, at paragraph 29, and also the High Court authority in Re: Lang's case, which is at 73 IR 300, on page 304.
PN1835
Now, I don't wish to go to those authorities in great detail, but in relation to Lang's case, the High Court at page 304 refers to a submission that on the basis of the relevant orders in that matter were going to expire soon, it was said that there would be no live issue before the Court when that matter came on for final determination. The High Court said, as far as it goes, that submission has force and went on to find:
PN1836

The objection has force, but is not compelling.

PN1837
However, we rely on that authority to suggest that this is a case where that finding that such a submission has force ought to persuade the Commission not to grant the application as sought by either of the unions. In paragraphs 14 through to 25 of HIS G, we comment on the unions' outline of submissions and I will turn to them in due course. Suffice to say that in relation to paragraph 17, we raised a number of objections in relation to some of the attachments to what is now AMWU1.
PN1838
The Commission ruled on those objections and, Commissioner, your decision in respect of the admissibility of that material is at paragraph 206 of the transcript of 13 April where you adopted the submission put by Mr Tanner that you wouldn't allow evidence led as to those documents or photos being taken and what happened up to that, but as to circumstances from 27 October onwards. Commissioner, we say that that is a decision that ought to be applied to any consideration of any of the evidence that has been led in this matter, of events that took place up to 26 October. That is based upon your decision of 28 January.
PN1839
In any event, it would appear that there has been some evidence led by a number of witnesses as to events prior to and after the grant of the orders. There has been evidence led by witnesses, including Mr Taylor and Sevell, as to the incidents and prevalence of asbestos at the Liddell Power Station - I will turn to that in due course. There has been evidence led in relation to what HIS employees do when they're working in proximity to asbestos, and there's been evidence led by witnesses such as Mr Taylor and Mr Winegardner in relation to the facilities provided by HIS to its employees at the relevant times.
PN1840
The unions have asked the Commission to consider and find that the evidence is that their members held genuine concerns about occupational health and safety matters after the date the orders were made. In my respectful submission, that is not the appropriate issue for the Commission to consider. In the Rheem decision of Munro J, his Honour considers at paragraphs 44 through to 46, what the relevant considerations are. In my respectful submission, that is a persuasive consideration of that issue. That is, I adopt those paragraphs 44 through to 46 in this instance. There is a further decision which I would refer the Commission to, it's not in our list of authorities, but it's the decision of Monadelphous Engineering Associates.
PN1841
It's a decision of Deputy President McCarthy on 18 July 2003, PN 934966. In that decision at paragraph 17, his Honour, Deputy President McCarthy, adopts Munro Js consideration as to what constitutes a reasonable concern by an employee about an imminent risk to his or her safety. In that decision, his Honour the Deputy President goes on to consider in great detail in what circumstances action would fall within or outside that intention to the definition of industrial action, and he does so at paragraphs 36 through to and including 49. Once again, I'd refer the Commission to that decision as being demonstrative of the considerations the Commission must have to the issue currently before the Commission.
PN1842
If I can turn to some of the AMWUs material; does the Commission have the document marked HOS3? That's the exhibit HOS3 from the original proceedings. Commissioner, that's the letter by Ms Carswell of the AMWU to the Commission dated 26 October.
PN1843
THE COMMISSIONER: Yes. I have that, thanks, Mr Gee.
PN1844
MR GEE: I draw your attention to the third-last paragraph on that page where it reads in part:
PN1845

We wish to advise Commissioner Cargill that to the best of our knowledge the workers involved in this dispute have returned to work, except in the areas where there is asbestos.

PN1846
That letter is dated 26 October. In our respectful submission, that's an incorrect statement. The Commission found upon the evidence before it on 26 October that at the time the relevant employees were in fact not working at all. If you then turn to the document marked AMWU1, there are further instances where the AMWU has either got their facts wrong or they have misled the Commission as to the relevant facts. At paragraph 6 of AMWU1, the AMWU asserts that on 18 October or thereabouts, the employees of Power Pressure Welding found what they suspected to be asbestos. Well, that's wrong. It was employees of HIS and it was on 14 October.
PN1847
Those are matters that have been before the Commission from Mr Taylor in the first proceedings and a number of witnesses in these proceedings. The AMWU go on at paragraphs 7, 8 and 9 to make submissions as to matters of fact that are wrong, or alternatively, not before the Commission in evidence. There is an allegation at paragraph 9 that HIS management instructed a young employee, and so on and so forth. Well, there's simply no evidence before the Commission that that has taken place. Mr Taylor gave evidence as to the boiler door and the material were removed in the first proceeding before the Commission on 26 October; there is no evidence to contradict his version of events.
PN1848
At paragraph 10, the AMWU make the bald assertion that HIS does not have an asbestos removal licence. That's wrong. HIS A in these proceedings is a document that proves that HIS in fact do have an asbestos removal licence. I think it was in fact Mr Wallace who admitted in cross-examination that it is correct to say that HIS do not hold the contract to remove asbestos from the Liddell Power Station, but it is not correct to assert that they do not have a licence to remove friable asbestos. In paragraphs 11 and 12, the AMWU make submissions as to facts that are either wrong or are not evidence before the Commission.

PN1849

For example, there's just no evidence about employees finding old rags and fire blankets and so on and so forth. At paragraph 14, the AMWU refer to the transcript of proceedings before the Commission on 22 October. It is worth traversing that transcript in part. At paragraph 22 of that transcript, Mr Morrison is making submissions about the state of affairs at the site in question. This is 22 October. He says that workers are working in extremely dirty conditions, who have no place to get changed out of contaminated clothing, they have no place to shower, there are no adequate facilities, and so on and so forth. He alleges that there was asbestos removal that the company undertook without a licence. I am assuming he is referring to my client, HIS Engineering Services.
PN1850

He says they removed asbestos. He says in the lunch room was found a bag of asbestos that someone forgot to take away, and workers are expected to take that into their cars and take it home and so on and so forth. Now, that is an outlandish statement to make. It's not backed up with fact, it wasn't pressed in these proceedings at all. That's a point I make about the entirety of Mr Morrison's comments at paragraph 22. Those comments, when you read them, bearing in mind the evidence that is before the Commission, establish the length to which the AMWU are prepared to make statements unsubstantiated with fact about the matters at issue in these proceedings.
PN1851
In any event, those matters were put to Mr Taylor in his examination on 13 April and he denied them. Paragraph 16 of AMWU1, there's an allegation that employees encountered harassment and intimidation by HIS management. There's no evidence of that. It hasn't been the subject of submissions by either of the representations from the union. I will come back to paragraph 17 and the document, annexed at E. At paragraph 25, the union assert or allege that HIS were not prepared to respect the concern raised in respect of the asbestos register. Well, once again, there's simply no evidence of that.
PN1852
Paragraph 26 is the reference to the photographs taken by Mr Henry. I don't press that. I am sorry, paragraph 27; as we now know, the photograph referred to in that paragraph is taken at the Bayswater station, not the Liddell power station where the asbestos issue had arisen and confirmed by my friend Mr Tanner in his final submissions, that that was the site they were concerned about. Paragraph 28 is, in my respectful submission, quite illustrative of the cavalier manner in which the AMWU has conducted this matter. At paragraph 28 they refer to a shower block, and refer to photos of this shower area attached and marked as H and J.
PN1853
The Commission would have been referred to on a number of occasions, those photographs. However, Mr Wallace in cross-examination - I am sorry, not in cross-examination. In examination-in-chief, Mr Wallace admitted that the facilities were in fact a toilet block, not a shower block. That's at paragraph numbers 342 and 343. In cross-examination, once again he confirmed it's a toilet block and was not a shower facility. That's paragraph numbers 414 and 415. Now, that's relevant because the issues that are said to relate to the provision of amenities - - -
PN1854
THE COMMISSIONER: Sorry, what was the last reference, Mr Gee?
PN1855
MR GEE: Paragraph numbers 414 and 415. Now, that's of particular relevance given that the only evidence led by the unions of the concerns held by HIS employees was the evidence of Mr Mudford. His evidence is that there were only two issues relating to amenities; one was the provision of showers and the other was in relation to the provision of running water. No issue of toilets. In relation to paragraph 31, there's a submission by the AMWU that the HIS workers strongly believed that returning to work exposed them to what was suspected to be asbestos fibres, and I concede that is an issue that must be determined, and I will address that shortly because in my respectful submission, the evidence is that there was no doubt, there could be no doubt in any reasonable assessment, that there was no imminent risk to exposure to asbestos well before the date the orders were made.
PN1856
The matters at paragraphs 32 and 33 are simply not available on the evidence. I will address those briefly in a moment. Commissioner, in my submission, the issues can be boiled down to two; it's in relation to whether or not there was a genuine concern over exposure to asbestos from the date the orders were made, and whether or not there were adequate amenities at the site from the date the orders were made, and whether that in itself gives rise to a reasonable concern over an imminent risk in the manner prescribed at section 4(g) of the Act. Now, if you look at the first two issues, that being asbestos, there is evidence before to which the Commission can take reference in the earlier proceedings, and that is the evidence of Mr Taylor at HIS1 and his evidence-in-chief in that matter.
PN1857
That evidence formed the basis of the Commission's decision on 22 October to issue the order, and the Commission was satisfied of the necessary jurisdictional requirement that the action be industrial action. There has been no contrary evidence led in these proceedings, or no evidence which is available, that would contradict the basis upon which the Commission made that original finding. The evidence of Mr Henry of the AMWU is particularly illuminating as to the issue of asbestos. Mr Henry's evidence at paragraph numbers 628 though to 631 is that he had two concerns over the handling and removal of asbestos.
PN1858
One was, I would phrase it, he describes it as handling of asbestos, and the second was that he had been told a young worker had been told or had been sent up without the appropriate safety equipment to remove or clean up the asbestos. Now, under cross-examination, Mr Henry admitted that he was not there at the time so he's not presenting direct evidence. That's at paragraph numbers 633 and 634. There is no direct evidence before the Commission that would support either of those concerns. Paragraph numbers 637 and 638, Mr Henry concedes that it was another contractor, not HIS, who were responsible for removing asbestos at the site.
PN1859
Mr Henry gave evidence as to annexure F of AMWU1, which was a photograph of an unknown substance in bags. Mr Henry agreed under cross-examination that what was in those bags was unknown. That's at paragraph number 635, and he agreed that if it was an unknown substance, it was to be treated as if it were asbestos. That's at paragraph number 636. He then goes on to admit that it's another contractor that has the responsibility for handling and removing asbestos. A little further on, Mr Henry admits he doesn't know how long the bags were there and he doesn't know when they were removed. That's at paragraphs numbers 649 and 650.
PN1860
So that evidence can reflect no more than a point in time, being a date before the orders were made. It cannot reflect a state of affairs said to be in place at a time after the orders were made. At paragraph number 697, Mr Henry gave evidence that his conclusions that asbestos was an issue were based on evidence from two parties. The first party was Liddell management who had, in his words, admitted that they now knew that the boiler doors in question were insulated by asbestos, so there's no question there was asbestos inside the boiler doors. That is not an issue that's in contest in these proceedings. The second basis of his conclusion was drawn from the interviews held with workers.
PN1861
Now, at paragraph number 657, Mr Henry admits that he wasn't told that there had been independent testing at the workplace for asbestos. So he wasn't aware of that at the time he formed his conclusion that asbestos was an issue at the site. Mr Henry was then taken to the evidence as to the testing for asbestos and the results of that testing. Those are the documents set out as annexures to HIS1. At paragraph number 701, Mr Henry concedes that the results of those testings show that on the days of the testing and the locations tested, there was no asbestos. Now, those tests were conducted and the results of those tests were made known to all parties before the orders were issued.
PN1862
It is the evidence of Mr Taylor that none of his employees raised with him an issue of asbestos from the date the orders were made. His evidence on that point is at paragraphs 997, 998, 990, 994 and 1016. Mr Henry gave evidence that it's a requirement of the legislation that if there has been a potential exposure, that employees be sent for - there's a requirement to have them medically assessed, and that's at paragraph 599. Mr Taylor in his evidence goes on to describe the process that was undertaken. HIS C are documents that record those arrangements to have eight employees tested and it's the evidence of Mr Taylor at paragraphs 915 and following, that HIS did arrange for testing for the eight employees who were said to have been potentially exposed to asbestos on 14 October.
PN1863
That testing was arranged to occur on a date after the orders were made. It was Mr Taylor's evidence that only two out of the eight employees bothered to turn up for that medical assessment, and we would invite the Commission to draw the inference as to how serious the other six took that issue. I have previously referred the Commission to the references in the transcript where Mr Taylor says repeatedly under cross-examination that he was not approached by any person following the issue of the orders, that they were concerned about asbestos in a work area and he was not aware that any other approaches had been made to other HIS management representatives about that issue.
PN1864
In fact, Mr Taylor's evidence is that a significant number of his workers expressed relief at the making of the orders so they could get on with the job. That's at paragraph number 967. What the unions have not taken the Commission to is the fact that throughout this entire sequence of events, when HIS employees were in the sheds and refusing to work over an alleged asbestos issue, was that the Macquarie Generation employees continued to work throughout the plant in the same areas that the HIS employees were refusing to work. Mr Wallace admitted that he had members of Macquarie Generation, that they are a party to the award that covers those people. That's at paragraphs 478 through to 483.
PN1865
Now, it's worth considering his evidence on that point. He didn't include Macquarie Generation employees in their relevant meetings to discuss the asbestos concerns. The evidence appears to indicate he didn't even consider it necessary to think about whether or not to include them. He admitted that Macquarie Generation employees remained at work throughout the process, using the same access walkways and lifts and ingress and egress points as for the contractors and employees. He then sought to go on and clarify his evidence by saying that those Macquarie Generation employees were working in control rooms which are barricaded and so on and so forth.
PN1866
He later went on in his evidence to assert that a number of them would have been on leave or doing paperwork et cetera. Well, the evidence of Mr Taylor at paragraphs 880 through to 891 was that that was just not the case; if anything, it was a period of high, intense activity from Macquarie Generation's employees who were working throughout the areas of the plant where HIS employees were, and that was the evidence of Mr Sevell this morning as well. Now, that begs one of two conclusions; either there was no genuine concern over asbestos within the meaning of 4(g) of the Act held by the union or its members, and if that is the case, then there is no basis to grant the application sought.
PN1867
On the other hand, if the union maintained that there was such a genuine concern, it invites a conclusion that they were negligent with respect to their obligations to their members at Macquarie Generation. In my respectful submission, it is the first of those conclusions that should be drawn, that there was no genuine issue with asbestos at the time, and I say that time had to have been no later than when the results of the testing for asbestos were known, which on the evidence is around about 18 or 19 October, well before the date the orders were made. The only evidence that goes to the state of mind of HIS employees regarding asbestos after the date the orders were made were the results of questions or concerns put by those people to Mr Henry and Mr Henry explained what the consequences of an exposure to asbestos were.
PN1868
Now, that does not establish the necessary basis for a finding that their action was within the exemption at 4(g) as discussed in the Monadelphous case and the Rheem case, to which I have referred to, not when the Commission considers the overall totality of the evidence regarding asbestos and the history of it being on the premises and off the premises. The evidence of Mr Taylor and Mr Sevell has been very frank in that the site does contain asbestos. However, it is not unsafe to work on the site unless that asbestos is in an unstable format, in that there is a breach in the insulation sealant or some such event. Mr Wallace, in his cross-examination, admitted the same thing.
PN1869
In concluding the issue with asbestos, Mr Morrison submitted that a number of workers chose to walk away after the orders were made. The evidence of
Mr Taylor was that only five to 10 of his employees left after the orders were made, of the 20 or 30 who did so, most of them did before the orders were made. His evidence was that they left because they were able to obtain work on shutdowns elsewhere where they didn't have these kinds of issues, not because of any concern over asbestos or for any other reason. In my submission, that does not assist the unions' case. The other issue on which the unions pin their hopes in this application is the provision of facilities, and in my submission, the issue can be boiled down to when those facilities were available.
PN1870
Mr Taylor describes the relevant history of the amenities issue at paragraph 911 of transcript, and he says that the issue was brought to his attention on Wednesday, 20 October, that there was a demand for shower facilities to be provided by HIS Engineering. He says on the 20th he placed an order for the shower facilities and gave a copy of that order to the delegates. That is not in contest. On Thursday, the 21st, Macquarie Generation made available to the contractors a block of eight showers. The shower block that HIS had ordered turned up on Friday, 22nd, and they had a crew work over the weekend, of the Saturday and Sunday, and by Monday morning, the 25th, all the shower blocks were installed and up and running.
PN1871
Now, the evidence of Mr Winegardner before lunch was that although he couldn't put a specific date on it, his evidence was that the shower blocks turned up on a Friday, they were plumbed in over the weekend and available on the Sunday night to be used on the Monday. Now, that's not a set of events that's admitted by the unions, as I understand it. The evidence of Mr Mudford is that he couldn't tell us when those facilities were made available. In cross-examination, at paragraphs 270 or 271, he couldn't recall whether those facilities were made available before or after the orders were made. The evidence of Mr Wallace was rather more equivocal.
PN1872
At paragraph number 385, Mr Wallace in his discursive style talks about the fact that Macquarie Generation made available shower facilities as an interim measure. At paragraph number 407, his evidence is that the plumbing on the shower facilities was done on the Monday or thereabouts. So if you look at that evidence, it would appear that he would agree that on or by the Monday, those shower facilities were made available. That being Monday the 25th, the day before the orders were made. But at paragraph 384, he seems to suggest the facilities didn't even start to arrive until 27 October. I mean, he's swimming around in the right week, but he just can't get the date right.
PN1873
In my respectful submission, the only clear evidence on that is the evidence of
Mr Taylor, corroborated with the evidence of Mr Winegardner. It will assist the Commission to look at the document at annexure E to AMWU1 which were the motions - on Mr Wallace's evidence, they were the motions put forward by his members, or by the members of both unions, as I understand it, on or around 25 October, where there is a clear concession - on my submission - that the amenities were acceptable by that date. In my submission, the inference to be drawn is that that could only be the case if the shower facilities that they had requested were there, had been plumbed in, and were available for use.
PN1874
The evidence of Mr Winegardner is that once they were available, they just weren't used by the majority of employees. I think his evidence was only one or a few blokes ever used them once or twice. I don't have the exact words, but that was the general thrust of it. If it was such an issue, why weren't they being used, if there was such a high level of concern about being exposed to asbestos? Frankly, the only inference that can be drawn is that it just wasn't an issue.
PN1875
Commissioner, in concluding, it is my respectful submission that when one has regard to all of the evidence that is available to it, that being the evidence of
Mr Taylor in the earlier proceedings and the evidence of events that occurred after the issue of the orders that have been tendered in these proceedings, the only conclusion that can be drawn is that the asbestos issue was not an issue by the time the orders were made because it had been adequately resolved with, and there was no genuine concern over exposure or a risk of exposure to asbestos from that date forward, and the facilities were not in issue either by the time the orders were made, in that what had been called for had been provided.
PN1876
If the Commission accepts those conclusions, or makes those conclusions, it must find that there is no basis upon which the application to set aside or revoke or vary the order can be made. If the Commission finds against me on that point - I withdraw that. That is my primary submission. If the Commission finds that there is some grounds upon which the application ought be entertained, then in my respectful submission the only action that ought be entertained is a variation of those orders to include the definition or, properly put, the exemption to the definition of industrial action set out at subsection (g) of the definition of industrial action in section 4 of the Workplace Relations Act.
PN1877
However, once again, that submission is subject to the Commission's consideration of the High Court authority in Lang's case and the ANZ Banking case to which I have referred the Commission. Those are my submission, if the Commission pleases.
PN1878
THE COMMISSIONER: Thank you, Mr Gee. Mr Philips, in view of what's been said - - -
PN1879
MR PHILIPS: If I could just make a couple of defensive remarks, and if I stray beyond - - -
PN1880
THE COMMISSIONER: Offensive or defensive?
PN1881
MR PHILIPS: Well, they might be offensive, and I apologise now, but just defensive for a moment.
PN1882
THE COMMISSIONER: Right, sorry. I just didn't hear you.
PN1883
MR PHILIPS: If they become offensive or they stray beyond what I am entitled to do, I am sure my friends will jump up and let you know.
PN1884
THE COMMISSIONER: Mr Tanner is ready to leap up now, I think.
PN1885
MR PHILIPS: Well, that's premature. I am going to be as short and as pleasant as I can. The worst thing that was said about Mr Sevell, his evidence in submissions by my friend, was the fact that it was suggested that he was being coy in relation to the presence of asbestos at the Liddell Power Station. Well, we say far from being coy, he was open and honest about the presence of asbestos at that power station because what he said about it, and this is concurred with by Mr Henry, is that asbestos is not, of its nature, a problem unless it's disturbed, and it's not a problem if it remains sealed.
PN1886
His evidence was that as far as the program of asbestos removal at that power station is concerned, is that unsealed and undisturbed asbestos is not and cannot present itself as a problem. It only becomes so if it becomes disturbed. That was really the effect of his evidence. Far from being coy, it was open and it was fair. But what's more important about Mr Sevell's evidence is what my friends didn't say about it in submission, in that there are a number of aspects about his evidence which he gave accounts of conversations he had with, particularly, Mr Wallace and there was no submission made by my friends that you should prefer Mr Wallace's evidence as to what was said as opposed to what Mr Sevell said.
PN1887
We would suggest that in the normal course of events, a moving party bears the onus, and it's a moving party is not suggesting that his evidence on a number of issues should be rejected. Well then, one is left in a position where one really is not even asked to weigh up his evidence as opposed to the evidence of someone else. So when one considers the onus which the moving parties here bear, well, they haven't discharged the onus on the evidentiary basis, and so consequently, you really can't make any finding regarding Mr Sevell's evidence, to the effect it shouldn't be accepted.
PN1888
Now, the relevant matters I am talking about are a number of issues which were raised - - -
PN1889
MR TANNER: We are now straying beyond the boundaries, in a sense that my friend is now addressing you on the nature of the application being brought. He is not addressing you solely with reference to Mr Sevell, he is engaging you at the level, Commissioner, of seeking to give an indication of how Mr Sevell's evidence relates to the orders which are being sought in this matter. There are criticisms being ventured which relate to, as my friend puts it, the moving parties, and for that matter, he is now assuming the role of respondent in proceedings seeking to frustrate the claims of a party. That isn't the role for which he has been given leave to appear.
PN1890
MR PHILIPS: Well, let me say this, Commissioner, if I may? That any Tribunal such as this where a witness is called must be very careful in making any findings about that witness, particularly in relation to this evidence, there's been no criticism made of it, but because now there is an alternative viewpoint as to what was said at a particular time. Now, there's been no criticism in any of the submissions made of Mr Sevell in the submissions we have heard this afternoon, other than the fact it was suggested he was being coy.
PN1891
Now, in that regard, what we say is that in accordance with good principle, you can't make any findings against Mr Sevell, and that's really based upon very high authority to the extent that people's evidence should not be rejected if there certainly is no criticism of it, and secondly, non-parties should not have any findings made against them if they have not had the opportunity to fully participate in any legal proceedings. The case of Flower v Hart is a case that ended up in the Appeal Courts, which suggested that findings can't be made against non-parties if they haven't had the opportunity to fully and thoroughly traverse and contest evidence which may have been given in proceedings where they may have been mentioned.
PN1892
So what we say in that regard is that you're really not able to make any findings against either particularly Mr Sevell, but more particularly, Macquarie Generation in relation to any of its activities, it not having participated fully in any of the contested evidence here. Now, there's been a lot of remarks made about Macquarie Generation and the like, and what we're saying is that this Tribunal would not be in a position to make any adverse findings against Macquarie Generation in that regard. That's the defensive aspect I am here to say. Secondly, you could not make any adverse findings against Mr Sevell, particularly when no comment has been passed against him in the submissions raised by my friend.
PN1893
Now, that's all I wish to say and that is, we submit, clearly defensive and accords with the leave you gave us to make some brief submissions that we thought we needed to. That's all I wish to say.
PN1894
THE COMMISSIONER: Thank you, Mr Philips. Mr Morrison, did you want to put any submissions in reply?
PN1895
MR MORRISON: Only that very might in light of what Mr Gee took exception to Mr Tanner in his questioning of Mr Sevell, where he was accused of reading transcripts out of context. I think that the same allegation could be quite easily made to what Mr Gee in his submission to yourself. We would only suggest that the transcripts should be read in their entirety and assessed at that, but I am sure that the Commission will do that anyway. So I really have nothing further to add.
PN1896
THE COMMISSIONER: Thank you. Mr Tanner?
PN1897
MR TANNER: Thank you, Commissioner. I will respond to Mr Gee's argument. He concluded by saying that the asbestos issue was not an issue at the time the orders were made. Commissioner, if that is the case, what was the issue? He hasn't addressed you on what their version is. What was the basis of the stoppage if it wasn't the asbestos issue? You haven't been referred in any respects to evidence which might indicate some other cause or interest which would explain why it is that workers were not working. I ask you to consider that, having regard to the fact that they only ceased working on 14 October when asbestos was exposed.
PN1898
A point made by Mr Philips, and it has been touched upon by Mr Gee as well, is that asbestos is not a problem unless it is disturbed or it is not sealed. That's not in dispute. Mr Henry has indicated as much. The problem here is that Macquarie Generation, and HIS for that matter, were not aware of where the asbestos was in the first place. They weren't aware, for that matter, as I indicated in my address earlier, that the boiler doors contained asbestos. Now, that being the case, employees were at risk in the sense that they were dealing with facilities, the content of which was not known to them, and for that matter, they were at risk of disturbing asbestos and exposing themselves to hazards.
PN1899
We have touched on the evidence of Mr Taylor, that he couldn't guarantee that the workplace would entail no exposure to asbestos, and similarly, Mr Sevell made that concession. In so far as the criticism of Mr Sevell for being coy is regarded as a matter of much sensitivity, hence the address we heard earlier. The point I was making, and you can examine the record, Commissioner, is that his initial approach was that there was no problem. It was that denialism that was cause for concern, however, as the cross-examination proceeded, there was recognition, appropriately, that it is a problem and beyond that, there was a concession at the conclusion of that cross-examination that there is the possibility of employees encountering asbestos.
PN1900
Mr Gee referred you to the Rheem decision and then sought to make the point that you can only - or the material time for you in considering whether the orders should be made and at that level, whether the concerns of the employees are relevant, was at the time that you make those orders. In other words, what he is suggesting is that evidence related to subsequent events is not relevant for the purposes of deciding whether you were correct in making the orders you made back on the 26th, and for that matter, whether the variation which the unions contend for would have been appropriate.
PN1901
You will recall, Commissioner, that it was Mr Gee who sought to secure a decision from you that no evidence should be led in these proceedings subsequent to the grant of your order as to matters preceding the granting of the orders. The unions were then, in the wake of your subsequent decision, left to lead evidence about what happened after 26 October, and to argue that if you consider the evidence from 27 October onwards, you will find aspects there which you can consider as being relevant to conditions previously.
PN1902
So, for that matter, the evidence which is led about facilities as those facilities existed after 26 October, is evidence which the unions can rely on as indicating to you that, given that state of affairs on 27 October, you can take it that the conditions prior to that were no different. That was what you were left to do. They were also, as I understand it, free to make submissions to you on other evidence which was available, of conditions at the workplace prior to the granting of the orders. Mr Gee, however, called witnesses and today led evidence almost exclusively about the circumstances at Liddell prior to the grant of the orders.
PN1903
So, Mr Sevell was led by Mr Gee at length on circumstances at Liddell on the tour with the union officials to examine the hazards which they were referring to. I submit that Mr Gee has waived his right to rely on the argument that the unions may only refer to matters subsequent to 26 October. He also led Mr Winegardner on conditions prior to the grant of the orders. That evidence, which he sought to elicit from Mr Winegardner, was meant to relate to a weekend prior to the grant of the orders. Well, as it turns out, Mr Winegardner was unable to deliver because he couldn't recall the dates on which the facilities were installed. So you are unable to take that evidence any further.
PN1904
Finally, Mr Gee also called the former Corporate Safety Officer, I believe that's his title - - -
PN1905
THE COMMISSIONER: Mr Knott.
PN1906
MR TANNER: Mr Knott, and he too was questioned at length about the issues prior to the grant of the orders. Now, with all of that evidence which Mr Gee, contrary to the dispensation which he sought from you, led, we still have nothing unearthed there which would indicate an industrial purpose for the stoppage. All it indicates is, certainly from both Mr Knott and from Mr Sevell, is an acknowledgement of the central issue of asbestos and the response of all parties, Macquarie Generation, HIS and the employees, to the fact of that hazard.
PN1907
Mr Gee has in argument suggested to you, in support of the argument that asbestos was not an issue at the time the orders were made, that only five employees resigned after the orders, and in that regard he referred to the evidence of Mr Taylor. The suggestion is that there were 20 or 30 resignations altogether. Mr Mudford's evidence is that people were resigning before the orders because they were not prepared to expose themselves to hazards, and that persons who resigned after the orders were resigning at a time when they felt that your orders compelled them to work in hazardous circumstances.
PN1908
Now, to pick up Mr Gee's argument, if there was no issue in relation to asbestos, why did the five resign after your orders were given, bearing in mind that
Mr Taylor has suggested that people were delighted that the could return to work, that other people prior to your orders were going off to seek alternative employment because they were uncomfortable with disruption, and in that sense, I understood Mr Taylor to be suggesting that people were unhappy with industrial action which had been adopted.
PN1909
I believe that the fact that you have five resignations following your orders is a clear indication that the sole basis of those employees opting out is that there is an unresolved asbestos issue, their concerns regarding asbestos which pre-existed your orders were not being recognised, and in the circumstances, they had to abandon that employment. Those are the submissions for the AWU, Commissioner.
PN1910
THE COMMISSIONER: Thank you. Just before you sit down, Mr Tanner, something I forgot to do was in fact you provided an outline of submissions by the AWU earlier on. In line with the marking of the submissions of the other parties, did you wish your submissions or outline to be marked?
PN1911
MR TANNER: I will certainly consider, then, whether it requires an exhibit reference, I am in your hands, Commissioner.
PN1912
THE COMMISSIONER: Well, maybe to be consistent, I don't know that we have an AWU exhibit at all, so maybe that's another reason to have one.

EXHIBIT #AWU1 OUTLINE OF SUBMISSIONS DATED 23/03/2005

PN1913
THE COMMISSIONER: Thank you. Mr Morrison, just for fullness, you have also provided an outline in response which was dated 10 April 2005. Do you want that - - -
PN1914
MR MORRISON: We might as well, while we're doing it.

EXHIBIT #AMWU2 OUTLINE OF SUBMISSIONS

PN1915
THE COMMISSIONER: Now, was there anything else that I have forgotten to mark or haven't - no? I think that's everything. So obviously in view of what's been put, I am going to reserve my decision, and will issue it as soon as possible. The matter is adjourned generally. Thank you.

<ADJOURNED INDEFINITELY [3.01PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

PETER ALBERT SEVELL, SWORN PN1255
EXAMINATION-IN-CHIEF BY MR GEE PN1255
CROSS-EXAMINATION BY MR MORRISON PN1321
CROSS-EXAMINATION BY MR TANNER PN1401
CROSS-EXAMINATION BY MR PHILIPS PN1517
RE-EXAMINATION BY MR GEE PN1533
THE WITNESS WITHDREW PN1556
PETER GREGORY KNOTT, SWORN PN1561
EXAMINATION-IN-CHIEF BY MR GEE PN1561
CROSS-EXAMINATION BY MR PHILIPS PN1608
CROSS-EXAMINATION BY MR MORRISON PN1613
CROSS-EXAMINATION BY MR TANNER PN1704
RE-EXAMINATION BY MR GEE PN1718
THE WITNESS WITHDREW PN1724
SCOTT WINEGARDNER, SWORN PN1735
EXAMINATION-IN-CHIEF BY MR GEE PN1735
THE WITNESS WITHDREW PN1767
EXHIBIT #HISG OUTLINE OF SUBMISSIONS DATED 06/04/2005 PN1832
EXHIBIT #AWU1 OUTLINE OF SUBMISSIONS DATED 23/03/2005 PN1912
EXHIBIT #AMWU2 OUTLINE OF SUBMISSIONS PN1914