RE2004/1975, Transcript of Proceedings [2005] AIRCTrans 1449 (4 July 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11989-1

DEPUTY INDUSTRIAL REGISTRAR MCCARROLL

RE2004/1975

MR JOHN COPELAND
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.285A(3) Appln for revocation of permit
(RE2004/1975)

SYDNEY

10.17AM, WEDNESDAY, 22 JUNE 2005

Continued from 20/6/2005

Hearing continuing

PN783

THE DEPUTY INDUSTRIAL REGISTRAR: Before we start I need to let you know it seems that we misplaced three exhibits, P1, P2 and P3. What we think has happened is when they were shown to the witness he bundled them up with his papers and walked out with them. I have since got copies again from Ms Mallia and I have looked at them, and they are in fact what was handed up. So I am letting you know.

PN784

MR COLEMAN: Registrar, just on the order of witnesses. Mr Purcell is here pursuant to a summons this morning. Mr Worley was the other Wolsos employee witness who we had scheduled for 10 o'clock yesterday. He is able to come today but unfortunately it won't be until 2.30. So there might be a fairly large gap between the two. The good news is, I think, that provided the respondent's witness statements are provided to me this afternoon, after Mr Worley's evidence is given the evidence should be able to be concluded tomorrow. That is what I would anticipate at this stage.

PN785

THE DEPUTY INDUSTRIAL REGISTRAR: Good, thank you.

PN786

MR COLEMAN: So first off I would call Mr Purcell.

PN787

MR PEARCE: Before my learned friend does that, I can now produce the original of the state authority.

PN788

MR COLEMAN: Perhaps it is appropriate it be marked as an exhibit.

PN789

THE DEPUTY INDUSTRIAL REGISTRAR: But he needs it back.

PN790

MR PEARCE: I mean it is really a question of having the - whether the photocopy does the trick. Normally one would say without doubt a photocopy would do the trick. But - - -

PN791

MR COLEMAN: I have certainly got no problem with it going back to the owner. I think provided that it is generally agreed, and the photocopy is a reasonably accurate representation, then I don't think it needs to be separately tendered.

PN792

MR PEARCE: And I don't mind describing - it obviously meets the description of having been through the wash. It was put to a witness on Monday. I am sure my learned friend would agree with that description actually.

PN793

MR COLEMAN: That brings us to Mr Purcell. Registrar there was a record of interview filed and served but there was a second record of interview that wasn't filed and served. It has now been served, it hasn't been filed. Perhaps I can pass a copy up.

PN794

THE DEPUTY INDUSTRIAL REGISTRAR: Sure.

EXHIBIT #C11 19 PAGE TYPED RECORD OF INTERVIEW M. PURCELL 10/08/04
<MARK PURCELL, AFFIRMED [10.21AM]
<EXAMINATION-IN-CHIEF BY MR COLEMAN

PN795

MR COLEMAN: Your name is Mark Purcell?---That's correct.

PN796

Your address Mr Purcell?---(Address supplied).

PN797

Have you got with you two documents, firstly a record of interview with hand written answers which appears to be undated?---Yes.

PN798

Have you read that in recent days?---Yes I have.

PN799

Do you say the answers you gave to those questions are true and correct to the best of your knowledge and belief?---Yes.

PN800

I tender that.

PN801

MR PEARCE: No objection.

EXHIBIT #C12 UNDATED RECORD OF INTERVIEW WITH HAND WRITTEN ANSWERS

PN802

MR COLEMAN: Mr Purcell you have a second, this time type written record of interview?---Yes I have. It is dated 10 August 2004?---That's correct.

PN803

Have you read that typewritten record of interview in recent days?---Yes I have.

PN804

Do you say the contents, or your answers to those questions are true and correct to the best of your knowledge and belief?---Yes.

PN805

I tender that Registrar.

PN806

THE DEPUTY INDUSTRIAL REGISTRAR: This is the C11.

PN807

MR COLEMAN: When you gave these interviews Mr Purcell you were employed by Walsos as a foreman?---That's correct.

PN808

You have since left employment with them?---I have.

PN809

You are now performing casual work in the building industry?---That's right.

PN810

They are my questions Registrar.

**** MARK PURCELL XN MR COLEMAN
PN811

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you. Mr Pearce.

<CROSS-EXAMINATION BY MR PEARCE [10.23AM]

PN812

MR PEARCE: Mr Purcell how long have you been in the building industry?
---Twenty four or 25 years.

PN813

I guess in that time you have attended quite a few tool box meetings?---Only recently in the last three years, when they started to be introduced into the business.

PN814

In your experience is it usual or unusual for a union organiser to attend a tool box meeting?---I haven't seen a union member at a tool box meeting.

PN815

A union organiser was the term?---No I haven't.

PN816

So I assume, in your experience, you have never been at a tool box meeting where a union organiser has raised a safety issue?---No.

PN817

How long did you work on that site at Harbord?---Nearly a year I suppose.

PN818

Were you on that site at the time when the first problem was experienced with scaffolding?---Yes.

PN819

Do you remember what that problem was?---Yes.

PN820

Can you tell the Commission what that problem was?---There was no stretcher access for the outside scaffold.

PN821

That was on 16 June?---Yes.

PN822

I was more particularly asking you about an earlier occasion in May, when the scaffolding was pulled down and put back up again?---Yes I remember that.

PN823

Do you remember what that issue was about?---Yes, the scaffold was incorrect.

PN824

In what way was it incorrect?---It wasn't wide enough.

PN825

What were the implications of it not being wide enough, from a bricklayer's point of view?---It makes it a bit hard to work. It wasn't wide enough and they didn't have any mesh on the outside scaffold, in case you fell off. You would go straight through the outside of the scaffold. Chain mesh.

**** MARK PURCELL XXN MR PEARCE
PN826

Was it Mr Mitchell who raised the issue about that scaffolding?---Yes.

PN827

Would it be fair to say that as a result of that the existing scaffolding was pulled down and new scaffolding was put up?---That's correct.

PN828

After the issue was raised about the stretcher access do you recall what happened then?---Yes. They put up some scaffold on the outside, on the western side of the building, and said it was stretcher access.

PN829

Do you recall when that was done?---June.

PN830

June or July?---I can't remember correctly. June or June, but that time of the year.

PN831

Certainly it was done after Mr Mitchell came onto the site and the issue was raised?---Yes.

PN832

Did you have any conversation with anybody from MPM about that work being done?---Yes I did.

PN833

Who did you talk to?---Michael.

PN834

That's Michael Avramides?---The foreman.

PN835

What did he say to you?---He said that is what they asked for, stretcher access, and that is what they got. Which was incorrect. All they did was access to the building.

PN836

So he indicated to you that - would it be fair to say that the request for stretcher access was an appropriate request?---It was an appropriate request, yes.

PN837

But he indicated that to you?---Yes.

PN838

That what was done was in response to the issue raised by Mr Mitchell on 16 June?---Yes.

PN839

On that day there was a meeting in an area that has been described as the loading bay?---Yes.

PN840

You didn't attend that meeting did you?---No.

**** MARK PURCELL XXN MR PEARCE
PN841

You don't know what was said at that meeting?---No.

PN842

I have read your record of interview with the task force and at no time does the task force raise with you what rectification action was taken in relation to Mr Mitchell's complaint do they?---No.

PN843

You raised an issue with them, did you not, in relation to scaffolding?---Yes I did.

PN844

I think it was question 141. Can you have a look at that, and 142?---Yes.

PN845

What was the issue you were raising, in layman's terms, what was the issue that you were raising with the task force when you were asked those questions and made those observations?---Saying that why did the building company employ a scaffold company to erect the wrong scaffold. And the scaffold company should know what needs to be erected. I am not a rigger or a scaffolder.

PN846

Were you expressing a view that the task force should have done something about that?---I don't know about the task force, but somebody should have.

PN847

In your dealings with the task force did you find them in any way interested in occupational health and safety issues in the building industry?---No.

PN848

They are not at all are they?---No.

PN849

In answer to another question you indicated that - it is question 46 - you indicated that you saw Mr Mitchell produce an identification pass?---Yes I did.

PN850

Can I show you this document. Is this the pass that he produced?---Looks like it from here. Yes.

PN851

Can I just state for the record that that is a state right of entry. No further questions.

PN852

THE DEPUTY INDUSTRIAL REGISTRAR: Thanks. Mr Coleman.

<RE-EXAMINATION BY MR COLEMAN [10.30AM]

PN853

MR COLEMAN: Mr Purcell you were just asked a question about seeing - a pass been shown, a document been shown and you just identified it. Where were you at the time that you saw that?---On the outside scaffold.

**** MARK PURCELL RXN MR COLEMAN
PN854

MR PEARCE: I object to this line of questioning. My learned friend is now going to cross-examine his own witness I apprehend, and he should make some sort of application if that is what he wants to do.

PN855

MR COLEMAN: There is no cross-examination. It is just clarifying his identification of the document. Where were you?---Standing on the outside scaffold, above.

PN856

Are you able to approximate how far away you were?---Twenty feet.

PN857

Thank you.

PN858

THE DEPUTY INDUSTRIAL REGISTRAR: I was actually going to ask that question myself. Thank you Mr Purcell.

<THE WITNESS WITHDREW [10.31AM]

PN859

MR COLEMAN: As I indicated earlier Registrar our next witness can't be here until 2.30. There are a couple of matters to deal with. Firstly, Mr Pearce yesterday made a statement from the bar table to the effect, as I recall it, $66 million has been spent fighting the task force on one prosecution. That is I recall the statement.

PN860

MR PEARCE: The ones accepted by the Commission.

PN861

MR COLEMAN: Firstly, I can't see that - I submit that that statement has no relevance to any issue in the case and it is probably said in an attempt to cause some sort of prejudice. But it did go in the record, and I need to respond. The statement is wrong. In fact it is arrant nonsense. The public record shows that the entire budget of the task force for a whole year, including all aspects of its operation, is a small fraction of that figure. That the entire budget for the 2005/
2006 year is $22 million, which includes the budget for the continuation of the task force, and the establishment of the Australian Building and Construction Commission. I just think I needed to make sure that the record showed a true position.

PN862

The other aspect of the case that could be dealt with Registrar is a statement from Mr Barrett, who is the site manager, if you like, with MPM for this site. It was filed and served, and the intention of the applicant was to call him for
cross-examination. Unfortunately, Mr Barrett has left employment with MPM and moved to Queensland. We have been able to make contact with him by telephone. In the circumstances where he has moved interstate he is certainly not a volunteer.

PN863

THE DEPUTY INDUSTRIAL REGISTRAR: Can I just interrupt you. Apparently we are having trouble picking you up on the transcript. If you could just lean into the microphone. Your mobile phone. Apparently mobile phones, when switched on, even in silent mode, sometimes interfere with the digital recording. Could I just ask, could you just indicate if you miss a comment to let us know, and we will repeat it.

PN864

MR COLEMAN: Has everything been got up till now? So contact has been made with Mr Barrett by phone. He is now a resident a Queensland. He left MPM some time ago. We have been able to make contact by phone but haven't been able to obtain an address for service and, quite frankly, we just can't get him here. I would ask the Registrar that his statement go into evidence and marked as an exhibit. In making that application, or making that tender, I acknowledge that to the extent that there is any dispute as to what he says - between what he says and what is said in the respondent's case there are questions of weight that would apply. And in my submission that is the appropriate way to deal with it, to receive the document, and then to the extent that there is any disputed facts that he gives evidence on, then it is a matter of weight. That is my application.

PN865

MR PEARCE: That's opposed Registrar. This matter was fixed quite some time ago. And I must say if you are in any way minded to grant the application I would like to cross-examine my learned friend's solicitor, so that we can find out - on the evidence in a voir dire what real efforts have been made to get Mr Barrett to attend. And I would like to know what Mr Barrett said on the phone, because I draw the inference from what my learned friend has said about serving a summons on him that he wasn't jumping out of his skin to come here and give evidence. I may be wrong about that. It may have been a formality that there was an intention to serve a summons. But I think you would have to know all those things if you were in any way you were seriously inclined to consider this application.

PN866

Can I say firstly that this is not the Commission, on a strict reading of the Act, but I think it is true to say that like the Commission this Tribunal is bound by the principles of natural justice, and perhaps particularly more so in a case like this which, although I know others don't accept the characterisation of it in this way, but I have characterised it as quasi criminal, in the sense of taking away a union organiser's right of entry has the potential to put in jeopardy his position, his office in the union, in that some parts of his job he may not be able to perform. So it is a very serious proceeding. I think the most recent authority on natural justice, as it applies to the Commission, is Re Australian Railways Union. I apologise, the only reference I have is at [1993] HCA 28; 117 ALR 17 at 25. I think it has now also been reported in the CLRs. In my respectful submission the contents of natural justice, certainly in these proceedings, includes a right to present evidence to establish relevant facts, and a right to disprove such facts by way of cross-examination. It is an authority right on the point but it is not, obviously, about these types of proceedings. But can I give the Commission an authority of the Supreme Court of the Northern Territory, of Justice Kearney, which deals with the point.

PN867

This was a case concerning the right of cross-examination in small claims proceedings before a magistrate. Which I think, if I can say with respect to magistrates, is probably, in terms of court or judicial proceedings, the most informal and probably at the bottom of the hierarchy of types of hearings that courts conduct. On appeal the question arose about the entitlement to cross-examine, and first of all, if one looks at the case summary. It is over the page at page 2 this is said:

PN868

As to section 19 subsection (4)(b) of the Local Government Act the concept of unfairness -

PN869

And it think section 19(b) is set out at the top of the report on page 1 that the conduct of the proceedings - a ground of appeal is that the conduct of proceedings was unfair. So the issue was what was fair, in terms of the statute when it said there:

PN870

So as to section 19 subsection (4)(b) of the Local Court Act the concept of unfairness in the conduct of the proceedings ...(reads)... support of his own case, and to controvert the evidence which is the basis his opponent's case.

PN871

And some authorities are there set out. And that is a summation of what is said in the actual report, at page 10, at about line 15 on page 10. It says:

PN872

As to section 19 subsection (4)(b) the concept of unfairness in the conduct of the proceedings connotes a failure to comply with one or other of certain procedural requirements fundamental to the administration of justice which fall under the general rubric of natural justice -

PN873

Which is where we are I think:

PN874

- in homely terms this requires that a party be afford a fair crack of the whip as Lord Russell of Killowen put in Fairmount Investments Limited v The Secretary of State for Environment 1976/1 Whitkin Law Reports 1255 at 1266. For present purposes they had to be afforded -

PN875

This is the appellants:

PN876

- a right to present evidence relevant to establishing facts in dispute and a full opportunity to disprove such facts by cross-examination ...(reads)... (4)(b) because it does not accord with what the audi alterum partum principle of natural justice requires.

PN877

It then turns to deal with the grounds of appeal. So in my respectful submission if you were to admit this record, this statement, without affording the respondent the opportunity to cross-examine then you would be denying the respondent natural justice. You are obliged to afford to the respondent natural justice. In my respectful submission you have no alternative but not to admit the statement. Having said that, as I have said, I also don't think that the explanation made about Mr Barrett being in Queensland is really very satisfactory. It seems like someone rang him last week at the last moment, or whenever. This matter was set down, I think, about two months ago with these dates. So there is nothing really extenuating about the inability of Mr Barrett to be here.

PN878

Can I give you some other authorities that support that decision. There is Bayrum and Becton. There is a Barrier Reef - this is a High Court authority. Barrier Reef Broadcasting Pty Ltd v The Minister for Post and Telecom. 1978 19ALR 425 at 455. I think that is Justice Toohey. Osgood v Nelson, which is a very old authority, 1872 LR5636 at 646. Some extempore observations in Wednesbury Corporation v Minister of Housing and Local Government. 1966 Two Queens Bench 275 at 302. Some observations in - these are English cases, The Queen v Birmingham City Justices, ex parte Chris Foreign Foods 1970, One, Weekly Law Reports 1428 at 433. And a Victorian case. The Mayor of Brighton v Selpan 1987 Victorian Reports, at 4.

PN879

Of course all of those cases deals with different Tribunals, but they all set out the general, as do Bayrum and Becton, although it is right on the point really, they all set out the general proposition about the content of natural justice, and Bayrum and Becton was right on the point, although it is referring to Small Claims, it is referring to what constitutes fairness. And for those reasons you should not allow the statement of interview or the signed - to be admitted.

PN880

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you. I could probably have saved you all the trouble. The two things I need to consider here is relevance and fairness. Unsworn statements would be given so little weight that I doubt whether they would have any bearing anyway. And I had formed the view fairly quickly, in the absence of the ability to cross-examine it would attach unfairness to the respondent. Therefore I won't admit the statement. I should add, I think there are number of Full Bench decisions of this Commission that deal with evidence of this nature and listing.

PN881

MR COLEMAN: For the record I made the application and Mr Pearce did put his submissions. There are a few things I could say in reply. I view of that ruling I don't think any of them would impact on the ruling anyway. So it is probably not necessary for me to say what I was thinking of saying. That then leaves us with our final witness who unfortunately can't be here until 2.30. It is not the way I would like to run the case but circumstances beyond our control have dictated it, unfortunately.

PN882

THE DEPUTY INDUSTRIAL REGISTRAR: We will adjourn till 2.30.

<LUNCHEON ADJOURNMENT [10.46AM]
<RESUMED [2.31PM]

PN883

MR PEARCE: Registrar this morning my learned friend referred to some observations I made, and I just provide to you the source of the observations. I think there is probably hyperbole in what I said. It turns out that the $66 million was spent by the federal government, not the task force. It arose out of the - some of it was spent on the task force and some was spent on the Cole commission of inquiry and $66 million. They got one successful prosecution. One wonders what all the legal aid could have been provided to very other worthy people.

PN884

MR COLEMAN: I don't think anything more useful can be said Registrar and I don't intend to argue about it.

PN885

THE DEPUTY INDUSTRIAL REGISTRAR: That's right.

PN886

MR COLEMAN: It certainly may be that - the $66 million was apparently the cost of the Cole Royal Commission.

PN887

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you.

PN888

MR COLEMAN: According to this document Commissioner.

PN889

THE DEPUTY INDUSTRIAL REGISTRAR: Are you ready to go with our witness.

PN890

MR COLEMAN: Yes. We have got Mr Worley here. He is in the precincts, and my instructing solicitor is just looking for him. I saw him about five minutes ago.

<DAVID WORLEY, AFFIRMED [2.33PM]
<EXAMINATION-IN-CHIEF BY MR COLEMAN

PN891

MR COLEMAN: Your name is David Worley?---That's correct.

PN892

What is your address Mr Worley?---(Address supplied).

PN893

You gave an interview to some investigators from the task force back on
3 August 2004?---That's correct.

PN894

That is a 17 page document you have got there is it?---Transcript, correct.

PN895

17 pages?---That's correct.

PN896

Have you read that in recent days?---I have, yes.

PN897

Do you say the answers you gave to those questions are true and correct to the best of your knowledge and belief?---Yes.

PN898

When you gave this interview you were employed by Walsos as a site supervisor?---As a construction manager.

PN899

Thank you. Are you still employed by that company?---Yes.

PN900

They are my questions.

PN901

THE DEPUTY INDUSTRIAL REGISTRAR: Did you say 17 pages?

PN902

MR COLEMAN: Mine is 17 pages.

PN903

THE DEPUTY INDUSTRIAL REGISTRAR: Eleven on mine.

PN904

MR COLEMAN: It has been reformatted at some time. I have now got before me - it is clearly the same record of interview but it has been reformatted, compressed to 11 pages. Registrar it might be appropriate if I hand up a copy of the version that the witness has.

**** DAVID WORLEY XN MR COLEMAN
PN905

MR PEARCE: I don't object to that Registrar, although you might like to check. It looks to be - - -

EXHIBIT #C13 RECORD INTERVIEW D WORLEY

PN906

MR COLEMAN: Sorry about that confusion.

<CROSS-EXAMINATION BY MR PEARCE [2.37PM]

PN907

MR PEARCE: Mr Worley how did you come to give that interview to the task force?---I believe at the time there was a phone call made to our headquarters if you like, requesting we give an interview regarding the site stoppage at Wayne Street, Harbord.

PN908

Did you take the call?---I believe not, no.

PN909

Who took the call, do you know?---Possibly someone who sat at the office desk at the time. It would have been the lady who attends to our phones.

PN910

Who told you about the call?---Maybe Louise herself. She would have been the lady there. She may have left a number for me to call. I don't recall actually.

PN911

Did you have any discussions with anybody at Walsos before you spoke to the task force?---Regarding this case you mean?

PN912

We will come back to that. Regarding whether you would give them an interview or not?---To my knowledge, no.

PN913

Because I notice at one point in the interview somebody, I think, walked in on the interview didn't they?---Yes. Two people walked in actually.

PN914

Who was that?---One was the director Mr Terrence Hough, and the one was the young office lady who wanted to know if we wanted any sandwiches from the shop.

PN915

Yes I saw that. So who was the first person again?---The managing director, Terrence Hough.

PN916

How did he come to walk in?---The room in which the interview was being conducted it was down the stairs from the office above. He had walked upstairs to tend to some matters upstairs. When he came back down we started the interview in this room and he poked his head through the window. Didn't realise we were having an interview. And recognised one of the guys from the task force he had previously seen at an meeting or something.

**** DAVID WORLEY XXN MR PEARCE
PN917

Did you want to give the statement?---Sorry?

PN918

Did you want to give the statement?---Did I want to give the statement?

PN919

Yes?---I have nothing to hide from giving the statement. I didn't really know where it was going. What it was applicable to.

PN920

Did anyone tell you you didn't have to give a statement?---No.

PN921

So no one from the task force said you are not obliged to give a statement?---The same as me being here today. I wasn't told that I didn't have to attend here today. But I am here basically.

PN922

But you were summonsed here weren't you?---I have never had anyone say to me you have been summonsed.

PN923

Well you could have been summonsed?---Okay.

PN924

But no one from the task force told you you didn't have to give statement?---I believe not, no.

PN925

Did they suggest to you that you had to give a statement?---To my knowledge I wasn't told that, no.

PN926

I expect that over the recent years you have attended quite a few tool box meetings?---Yes.

PN927

Have you ever attended a tool box meeting where a union organiser was present?
---Hard to say really. Over three years it's quite hard to say. I have been on some pretty huge projects. Hard to say.

PN928

To your observation is it normal for union organisers to be at tool box meetings?
---Well tool box meetings, from our point of view, are held generally in our smoko shed by the guys who work for our company. We conduct our own, as well as if the actual site management want to conduct one too. But unless he has turned up at that time, sit in on the meeting, then I would say not.

PN929

It would only be an accident if he happened to be there, is that right?---He has never requested to come to the tool box meetings, that's correct.

PN930

So in your experience it would be most unlikely that a union organiser would raise safety issues by means of attending a tool box meeting?---Unless at any stage he looked into any of the tool box meetings. If he is allowed to do that, I don't know.

**** DAVID WORLEY XXN MR PEARCE
PN931

How often did you go to that site at Harbord?---Quite frequently. It hadn't long been under way. I think we were on the third floor, including the basement at that time. And I would have been there at the start of every floor. It is quite close to ..... so I would have picked my moments through the week to go. At the time of that site running I think I had about 22 jobs on the go at one time.

PN932

Were you aware that there was a problem with the scaffolding on that site at the end of May 2004?---I was aware of there being a problem with the scaffold, that's correct.

PN933

Can you remember what it was?---I believe that the platform of the scaffold wasn't wide enough.

PN934

What happened?---We left site. Everyone left site, I believe, until the scaffold was put up as a five board platform.

PN935

That was an issue that was raised by Mr Mitchell wasn't it?---At the time I believe so.

PN936

The issue wasn't it, I think, that the scaffold wasn't wide enough for bricklayers?
---Yes.

PN937

I think also I have been told that there was no wire mesh on the outside. So there was a possibility that they step back and fall off the site - fall off the scaffold, sorry?---Yes quite possibly, yes.

PN938

So it was a fairly sort of serious issue wasn't it?---It seemed to be at the time. They made them take it down and put it back up, so I would say it was pretty serious.

PN939

From your point of view that was quite an appropriate thing to happen?---For safety ..... it is very tight to get along there, loads of scaffold and working on a three board scaffold.

PN940

You are aware, also aren't you, that after 16 June that there was further changes made to the scaffold?---The premise scaffold?

PN941

Yes?---Are we talking about the incident in question to this transcript?

**** DAVID WORLEY XXN MR PEARCE
PN942

Yes?---I believe there was some changes made, yes.

PN943

In fact a new access was put in by the scaffolders, is that right?---The access. I am not sure if a new one was put in, but the one that was in was altered I believe.

PN944

That was to ensure stretcher access?---The external scaffold. I am not sure was to permit stretcher access. From my understanding stretcher access was deemed to be the internal part of the building.

PN945

I wonder if the witness could be shown exhibit P3. The first page is a quote from B&C[sic] Scaffolds, and the second page is an invoice payment from MPM Constructions. Have you ever seen those documents before?---No.

PN946

Just have a look at the first page where you see that that is a quote - well what do you understand by reading that what the quote was for?---A stretcher access, fully enclosed with chain wire and shade cloth. Hire of. Stamp duty, transport
et cetera.

PN947

You will see that that was a quote that was obtained on 21 June 2004?---Yes.

PN948

Did MPM tell you that that were getting that quote? Did anybody from MPM?
---Did they explain to me they were getting the quote?

PN949

Yes?---No.

PN950

But that would have been a matter that, in view of the involvement of Walsos in the events of 16 June, that you would have expected to be told about wouldn't it?
---I wouldn't expect to receive this quote through the fax or invoice.

PN951

No but you would expect to be told that they got a quote and that they were going to put in new stretcher stairs wouldn't you?---Quite possibly.

PN952

Did the bricklayers get paid in respect of the period that they were absent from the site on 16 June?

PN953

MR COLEMAN: I object. There can't be any relevance to an issue in the case. It could expose this witness or his employer to some scrutiny in relation to compliance with the clause, and it just simply doesn't bear on any issue in the case. Certainly the witness, if the questions are going to be pressed, should be - he may have some exposure, possibly.

**** DAVID WORLEY XXN MR PEARCE
PN954

MR PEARCE: I must say I would have thought the relevance of it was that it really goes, once again, to indicating what I think the evidence shows. Is an absolutely disgraceful attitude by MPM to safety on the site. That is the issue I was exploring. I know the matter my learned friend is referring to, but not even the task force in their wildest fancy, I wouldn't have thought, on the evidence that has now emerged in this case, would suggest that the stoppage was anything but justified on occupational health and safety grounds.

PN955

MR COLEMAN: That is certainly not conceded.

PN956

MR PEARCE: Anyway I press the question. Were the bricklayers paid? The question is were the bricklayers paid for the period that they were on strike on 16 June?---When you say on strike I don't believe that our workers were on strike, or I have never the mention strike, mentioned to me at all.

PN957

So they just left the site, is that right?---By the time I got the call and everyone packed up the gear and found out what was happening it was about ten past, quarter past three anyway. Our close of business is 20 past three. So I had no reason to stop them 10 minutes worth of money.

PN958

Did MPM try and get the 10 minutes off you, or 20 minutes or whatever?---For the actual down time?

PN959

Yes?---No.

PN960

Do you recall the stretcher stairs being installed on the site?---No.

PN961

Were you aware of any other occupational health and safety issues that had developed on that site from time to time?---Not at the present moment, no, I can't recall any.

PN962

For instance, I think there was some other improvement notices served by WorkCover in respect of that site. Did you know that?---I have actually written a letter to WorkCover and tried to find some information myself, and after sending off seven or eight faxes I've received no phone calls or any correspondence at all regarding any safety issues to that project.

PN963

Why did you do that by the way?---Because I am not an expert in safety, but I certainly like to learn as I go and any information I could have gleaned from it, in statistics, from the head of safety if you like, WorkCover, would have been a help to me.

**** DAVID WORLEY XXN MR PEARCE
PN964

And would it have helped you to make the job safer?---It would have helped me to know where I stand in certain matters. If anyone asked me what any - - -

PN965

So I suppose, on reflection, you are fairly disappointed that MPM didn't provide this sort of information to you ?---I am probably more disappointed with WorkCover about it didn't supply the information and ..... it was them I specifically asked. MPM could tell me anything but it is not gospel, I don't believe it unless it comes from WorkCover.

PN966

I wonder if the witness could be shown exhibit P1 and P2. You will see exhibit P1 is a series of improvement notices. Four in total. Issued by the WorkCover authority in November 2003 in relation to that site. If you look down you will see the site is identified in the bottom left hand corner there. Can I invite you to assume that, of course, that they are issued to MPM Constructions so they are in the possession of MPM Constructions. Are you disappointed that the existence of those improvement notices weren't brought to your attention by MPM Constructions?

PN967

MR COLEMAN: I object. The witness ought to be given - if he is going to be asked details questions about them he ought to be given time to read them, and ..... directed towards relevant dates, and asked whether he was on site or ..... was on site at the time.

PN968

THE WITNESS: I am not really sure what these are actually applicable to. It is mentioning clauses but I am unfamiliar with clauses.

PN969

MR PEARCE: But you will see, I think for instance one of them deals with without adequate hand rails. If you look at the reasons for the issue in the top right hand side. What does the one on the top of what you have got say?---I have got the may be exposed to health risks, inhalation of asbestos. Broken sheeting found in soil.

PN970

That is a fairly serious improvement notice isn't it?---Indeed. But it looks like this was - - -

PN971

Before your time on the site?---Well before our time, yes.

PN972

What is the next one you have got?---Contractor not kept induction training records as prescribed.

**** DAVID WORLEY XXN MR PEARCE
PN973

That is a fairly issue isn't it? I am sorry. I was just asking you isn't the question of induction records a serious issue on a building site, because if they are not kept you can't be sure that people have been inducted to the site can you ?---All records of induction should be kept somewhere where you can find them, that's correct.

PN974

You will notice there is one there, it refers to without adequate hand rails?---Yes.

PN975

That is a serious issue isn't it?---Hand rails are a serious issue, that's correct.

PN976

But these were all issued on 12 November 2003. Is that before Walsos was on the site?---Sorry, what was the date again?

PN977

12 November 2003. Is that before Walsos was on the site?---I believe we started the job - it would have been right on the cusp. About the end of October I believe.

PN978

So they were issued while Walsos was on the job you think?---Some of. I think there is a couple of other ones. Well 11th of the 9th.

PN979

Was there a noticeboard on the site?---I think there may have been a noticeboard on the site. There was a crane - generally in procedure with the crane everything goes on there - you book in crane times and other notes go on there.

PN980

Did you know that it is a requirement that if an improvement notice is issued it should be pinned on the noticeboard on the site?---I didn't know it was a requirement, no.

PN981

Anyway you obviously didn't see it pinned on the noticeboard if it was, did you?
---This is the first time I have ever seen this.

PN982

Can you have a look at exhibit P2 there. You will see that that is - the improvement notice there is dated 2 August 2004, which is I think is a day before you do your record of interview. Were you aware that that improvement notice had been issued?---No.

PN983

You are disappointed now that you find out that it was issued at the very time that you were doing your interview.

PN984

MR COLEMAN: I object to that question. The document the witness has been shown looks like it was faxed from WorkCover some time in very recent days. It looks like Friday, and stamped across the top is the word preview only. There is no evidence that it was actually served. The same goes for the most of the previous ones as well.

**** DAVID WORLEY XXN MR PEARCE
PN985

MR PEARCE: If you look down the bottom of it, it says:

PN986

Method of delivery, fax. 2/08/2004

PN987

MR COLEMAN: It is just a piece of paper with ink on it. It doesn't prove that this - - -

PN988

MR PEARCE: It is a business record.

PN989

MR COLEMAN: - - - that this was ever served. We just don't know. It is a piece of paper that has obviously come from WorkCover. It's status we don't know. Whether it was communicated to MPM. Just because it has got a date on it that indicates that - even if it was it doesn't mean it has been. And the assumption shouldn't be made that it was ever served, unless there is proof of it. And for that reason the question to the witness is unfair.

PN990

THE DEPUTY INDUSTRIAL REGISTRAR: The witness earlier answered that he wasn't aware of any improvement notices or issues.

PN991

MR PEARCE: That's right.

PN992

THE DEPUTY INDUSTRIAL REGISTRAR: He said he had made an attempt to contact WorkCover to get information and he hadn't received any. He is now being shown some of the issues. The question was simply whether he was disappointed he didn't get it previously. I know where you are going, and I can't wait to see where we end. But I think you can answer that question.

PN993

MR PEARCE: Were you disappointed that you didn't receive that at the time?
---Now I'm - you know, someone should have given me this information. But as you will see in a letter that I think I did submit, amongst this, several faxes to WorkCover requesting any information regarding any safety issues ..... and never received any. I am more disappointed in WorkCover in so far as they - I never knew anything about MPM holding any paperwork. But I did request any paperwork or any answers from WorkCover and received nothing.

PN994

Why aren't you disappointed about MPM not telling you?---Well because I never asked them for any information. I wasn't aware that anything had been served. I thought rather than go to MPM. It may not be in their interests to tell me the truth, I am only a bricklayer. But I thought WorkCover might come to the party and give me some information that might help me out.

**** DAVID WORLEY XXN MR PEARCE
PN995

I suppose what you are saying is that you had fairly low expectations about MPM did you?---I have fairly low expectations of all builders regarding paperwork.

PN996

But you agree with me - take for instance the notice dated 2 August 2004. That is P2. The issue there is one that was directly impacted on Walsos' bricklayers on the site isn't it?---I would actually have to check the dates to see if we were even on site at the time. Maybe it was the form worker working with plasterers working underneath. I am not really sure if we were on site at the time.

PN997

As far as you know none of the issue of these improvement notices was discussed at tool box meetings?---Unless our foreman knows anything about them. I know nothing about them.

PN998

Do you still do work for MPM also?---No.

PN999

Why is that?---We have tendered a couple of jobs for them, and we haven't won them. Too expensive basically.

PN1000

You have no doubts, do you, that the question of the stretcher access that was raised on 16 June was a genuine health and safety issue do you?---I think I have put that in my statement in so far as I am not an expert on measurements. Which is why I requested the information from WorkCover. What is the measurement? I still haven't got that from anyone. What is the measurement that is supposed to be deemed as a stretcher access. I don't know.

PN1001

But now you have seen that a new stretcher access was put in you don't have any doubts that it was a genuine issue do you ?---I am not quite sure on the grounds of why it was deemed an issue. Whether it was blocked, whether it was the size of it, whether there was formwork still inhibiting the height of it. I never saw it at its time of problem. All I know is we went onto the site the other day. It seemed to be clear.

PN1002

So neither Mr Gee nor Mr Avramides told you what the substance of the complaint was by Mr Mitchell about the access?---Mr Avramides, the following day, and then Shane Barrett, who were on site, told me there was a few issues that had been pulled on. Stretcher access, an egress coming down from the external part of the scaffold. A safety committee to be formed. That was about it. I didn't go inside. There was a lot of toing and froing. I didn't go inside the building to inspect the internal access stairs.

**** DAVID WORLEY XXN MR PEARCE
PN1003

So you didn't actually inspect the access on that day?---I didn't go through it that day, no.

PN1004

THE DEPUTY INDUSTRIAL REGISTRAR: Excuse me this is the 17th we are talking about?

PN1005

MR PEARCE: Yes, the morning of the 17th, that's right isn't it?---Yes.

PN1006

The day after. Thank you. No further questions.

PN1007

MR COLEMAN: No re-examination.

PN1008

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, you are excused.

<THE WITNESS WITHDREW [3.01PM]

PN1009

MR COLEMAN: That's the applicant's case. I can report that I have been - just before served with two statements by the respondent. That being the case I would expect to cross-examine on these tomorrow, and assuming that is the respondent's evidence the matter should conclude. The evidence should conclude tomorrow.

PN1010

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you. We are adjourned until 10 o'clock tomorrow.

<ADJOURNED UNTIL THURSDAY 23 JUNE 2005 [3.02PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C11 19 PAGE TYPED RECORD OF INTERVIEW M. PURCELL 10/08/04 PN794
MARK PURCELL, AFFIRMED PN794
EXAMINATION-IN-CHIEF BY MR COLEMAN PN794
EXHIBIT #C12 UNDATED RECORD OF INTERVIEW WITH HAND WRITTEN ANSWERS PN801
CROSS-EXAMINATION BY MR PEARCE PN811
RE-EXAMINATION BY MR COLEMAN PN852
THE WITNESS WITHDREW PN858
DAVID WORLEY, AFFIRMED PN890
EXAMINATION-IN-CHIEF BY MR COLEMAN PN890
EXHIBIT #C13 RECORD INTERVIEW D WORLEY PN905
CROSS-EXAMINATION BY MR PEARCE PN906
THE WITNESS WITHDREW PN1008