C2005/2342, Transcript of Proceedings [2005] AIRCTrans 674 (17 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10815

COMMISSIONER HARRISON

C2005/2342

s.127(2) - appln to stop or prevent industrial action

Thiess Hochtieff Joint Venture
and
Construction, Forestry, Mining and Energy Union Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union The Australian Workers' Union
(C2005/2342)
Thiess - Hochtief Epping to Chatswood Underground Rail Link CFMEU, AMWU Construction Enterprise Agreement 2003 - 2006

SYDNEY

2.40PM, TUESDAY, 8 MARCH, 2005

Continued from 7/3/2005

PN628

THE COMMISSIONER: You are renewing your appearance, Ms McKenzie?

PN629

MS McKENZIE: I am, Commissioner. I am sorry, I had a private appointment before Commissioner Blair in Melbourne yesterday.

PN630

THE COMMISSIONER: Thank you. I think it's your call.

PN631

MS McKENZIE: Thank you. A few house keeping matters first if I may, Commissioner. I understand arising from yesterday there was an undertaking given for the company to produce to the unions copies of the Pickford and Rhyder consulting reports and there are two reports, one dated 10 February 2005 and the second one is 18 February 2005, and I have given copies to the unions just a short time ago but I don't know whether now is a convenient time just to tender. Well, I think if they are going to be the subject of some cross-examinations it might be convenient to tender both those reports now. The company also undertook to provide a copy of the National Occupation for the Safety Standards to the unions, and it's quite a thick document but I have given a copy of that just a short moment ago too. We only had the one copy only because it's just it's thick and only a few pages are directly relevant to the issue at hand but we have provided a copy of that document.

EXHIBIT #M6 PICKFORD RHYDER CONSULTING REPORT DATED 10/2/02005
EXHIBIT #M7 PICKFORD RHYDER CONSULTING REPORT DATED 18/2/2005

PN632

MS McKENZIE: Now, as I understand where the position was left yesterday with the evidence, Mr Jukes, the human resource manager on the project, had given his evidence orally, his statement has been tendered and there was cross-examination and he was excused but there was a reservation on the part of the unions to cross-examine Mr Jukes further in relation to the reports, the Rhyder Pickford reports, if required. I have just indicated to my friend a moment ago that whilst I don't suppose we can object to Mr Jukes being asked any questions that the unions want to in relation to cross-examination, subject of course to the Commission being satisfied that they are relevant. The reports were addressed to Mr Brennan who is the project safety security manager and in view of the line of cross-examination that the unions embarked upon on Mr Jukes yesterday, it seemed to the company that it made be appropriate for Mr Brennan himself to be called, because as we apprehended the position after the first day on Thursday, the factual context which the unions identified and which was the primary basis upon which further hearing was set, was the factual context about the contest over whether or not the conduct of employees in attending a meeting on the Wednesday morning and subsequently in relation to the practice adopted for the working of overtime and ordinary time, was industrial action within the meaning of the Act.

PN633

And you may recall there was a direct rejection of the primary submission which the company relied upon in the context of the application for the order that industrial action was occurring, and it was put from the bar table that employees were not engaged in any industrial action, either at that time or in the future. And that was because employees who attended the meeting attended in their own time, that no industrial action was taking place and that people, to the extent that they attended a meeting, it was outside ordinary time, and that there was not ongoing industrial action, that was a pretty direct conflict in the positions and we understood that was the primary basis upon which evidence was to be heard yesterday.

PN634

Now, as it transpired, although there seemed to be not a huge amount of challenge to Mr Jukes' evidence about what actually occurred on Wednesday and continuing, most of the proceedings were taken up with cross-examining the human resource manager about safety issues. And the merits of the reasons for the industrial action appear to be something that the unions are now focusing their case on, and it appears to be, the direction in which the union's case is going, that there were reasons for the position adopted by the employees to do with genuine concerns about safety.

PN635

And I don't want to be incorrectly summarising the union's position but it appears that the union's case is now focussing much more on the particular substantive issues, the safety issues. If that's the case then insofar as Mr Jukes was cross-examined largely about matters which are not within his direct knowledge, it's appropriate for the company to have an opportunity to respond to that. And if there is a genuine allegation or attack being put as to whether the company has itself either complied with the safety procedures in the EBA or has required employees to undertake some work practice or work some arrangements which are unstable, pose some imminent risk to health and safety.

PN636

If that's now what is being suggested, then it's appropriate for the company to be able to respond to that evidence with the person who is most qualified and placed to do so, which is the safety manager. And we are consciously not wanting to prolong the proceedings but if it is going to be a matter which the Commission takes into account in exercising its discretion in relation to the application, that the Commission fully understand what the safety parameters of the issues are and what actually occurred and what happened in relation to the company's actions in responding to the changing standards which came into place on 1 January. Then, in my submission, the most appropriate way to inform the Commission of that is for Mr Brennan to give evidence. Now, if the Commission says, well, that's not relevant and that sort of evidence will really carry little relevance in determining the matter before the Commission, then we will not press for it.

PN637

But we don't want it to be left on the basis that Mr Jukes' evidence is relied upon in some way by the unions as evidence that the company did or did not approach the safety issues in an appropriate manner, it that has any bearing on the disposition of the application. So we are in the Commission's hands and it may be appropriate to hear from unions but subject to the leave of the Commission we would propose to call Mr Brennan to deal with the safety issues, and I have some questions to ask him in chief. And then if unions do have cross-examination arising from the reports, then Mr Brennan is the most appropriate person to direct those questions to. Mr Jukes' statement went, as I said earlier, primarily to the events of Wednesday of last weekend and continuing. And in his statement he said that he set out the work arrangements which had been worked since the meeting, the work arrangements which, on the company's case, constitutes the unlawful industrial action.

PN638

Because the work arrangements which are the subject of the application which the company will allege constitute the unlawful industrial action, because those work patterns are continuing Mr Jukes has updated or prepared a further very short supplementary statement just to deal with yesterday and to bring the evidence up to date as to what work arrangements are continuing to be worked. And what I propose to do is tender that short updated statement which simply updates the information contained in paragraph 3 of his earlier statement and obviously he can cross-examine about that if you think it's necessary. But it simply brings up to date the arrangements which were worked by employees yesterday. So could I tender a copy of the statement of Mr Jukes which is signed but not dated, it's a two page statement with two attachments.

EXHIBIT #M8 SUPPLEMENTARY STATEMENT OF MR JUKES

PN639

MS CHARLSON: Commissioner, I would just say that Mr Jukes has already been cross-examined, it seems inappropriate to me for him to put on an amended statement after he has been cross-examined. I would only object on that basis.

PN640

MS McKENZIE: Well, I am happy to put him in the box just to explain but it's really only to update events. This is a matter which the application was first heard before the Commission last Thursday, it was listed for hearing yesterday, it's continuing. And our apprehension is that it may not finish today and it seemed appropriate and helpful to have current evidence before the Commission as to the extent and nature of the action which we are going to be having an argument over in submissions, no doubt, the significance of which will be argues but it is simply evidence that the action is continuing. Now, if the unions want to concede that that's the case and it will continue indefinitely then we won't need to put on the extra evidence but we rather thought this was the appropriate way to do it.

PN641

MS CHARLSON: Commissioner, obviously we make no such concession but I do say again that Mr Jukes had the opportunity to put on evidence. This deals admittedly with some of the same issues that were already dealt with but, for example, at paragraph 6 it says:

PN642

It is usual custom to have crib breaks underground and the time taken to get from underground to the surface to take crib breaks is about 15 to 20 minutes one way, this is further time lost to THJV.

PN643

This matter was squarely already dealt with in Mr Jukes' previous statement. It appears to me it's simply trying to augment his statement after having being cross-examined. Further, yesterday it was revealed that much of Mr Jukes' statement contained material, contained matters that weren't within his personal knowledge and, again, I object to Mr Jukes putting on additional statements after a lengthy and exhaustive cross-examination.

PN644

THE COMMISSIONER: Well, I am going to allow it, principally on the basis that it's relevant only in a sense to the Commission in updating what the company alleges to be industrial action still occurring since he was cross-examined yesterday. Do you have a view about Mr Brennan being called?

PN645

MS CHARLSON: We certainly do, Commissioner. It's our view, and I have checked the transcript for the appearance before you on 3 March, that the unions at that time squarely put it before the Commission and before the applicant that the issue as far as the unions were concerned, was safety and always was. At paragraph 39 of the transcript which is Ms Mallia's second paragraph, the second thing that she said to you. She said:

PN646

We can say at this stage that we don't believe and deny that there is any illegal industrial action that has either occurred or is continuing to occur...(reads)... the THJV, the Joint Venture, in terms of its compliance, was newly promulgated, or amended Australian standards was raised.

PN647

It's quite clear from that and from the ongoing discussion that the issue as far as the unions was concerned was, and always has been, safety. So we would say that for the applicant to try and change its case after choosing to put on evidence only by Mr Jukes is totally unreasonable. They have made that decision and it would be, we would submit, unfair for them now to be granted leave to change that. It's also the case that Mr Jukes in his statement has attempted to deal with the matters that we have raised. At paragraph 4 to 7 of his statement, he talks about respirable reports, he talks about the exposure levels, the monitoring, the advice received from Pickford Rhyder, the consultant, at paragraph 7 he says:

PN648

Pickford Rhyder have advised that the only possible way of complying with the standard is for employees who are exposed to respirable quartz to wear personal protective equipment, PPE, in the form of dust masks whilst performing underground work.

PN649

Yesterday, under cross-examination it was revealed that in fact Mr Jukes hadn't read that report so it was difficult for him to adequately summarise what was in that report. But it's nevertheless clearly the case that he is attempting to deal with the issues, he's aware of what the issues are that are and always were going to be before the Commission today and yesterday and he has attempted to give evidence about those, admittedly with little personal knowledge about those matters. So we would say that the company has chosen to present the case in the way that is has and after what transpired yesterday, it is unfair for the company now to attempt to change the way in which it presents its case before you. So we would strongly argue that leave to give evidence from Mr Brennan should be denied on the basis that the company has had the opportunity to present the case in the way it has chosen and now wishes to resile from that and take a different tack entirely.

PN650

MS McKENZIE: Well, on Thursday the company sought an order on the basis that unlawful industrial action was taking place and submissions were put in relation to the grounds upon which that order was sought and it became apparent that on both sides, submissions were being put from the bar table as to what the relevant facts were. And it was submitted on behalf of the company that there had been an unauthorised stop work meeting and that there was a limitational restriction on an ongoing basis on the working of overtime. And there was a submission from the company that the overtime was rostered overtime and it was put from the bar table by Ms Mallia and also Mr Dixon that there was no such thing as rostered overtime, it was voluntary. And it emerged during the course of the hearing that there was plenty of factual contest about that and in that context, when Ms Mallia submitted that there should be a hearing because the unions wanted an opportunity to bring evidence about the factual contest, we pressed for an interim order . And we submitted to the Commission that - - -

PN651

THE COMMISSIONER: Can we have all mobiles off?

PN652

MS McKENZIE: And it was submitted by Ms Mallia that because there was a factual contest about this, the unions want an opportunity to bring evidence. We said, well, in that circumstance, we think the company should have an interim order and the balance of convenience favoured that. And at the end of the proceedings at paragraph 109, the Commission said:

PN653

What I am going to do is this. I hear what has been requested by Ms McKenzie for the company...(reads)... next Monday is the time I intend to list the matter for formal evidence and for you to be prepared to argue against the issuing of an order.

PN654

And it was then listed and the application for the interim order was declined and the Commission said, but what happens between now and Monday can be a matter for evidence and will be a consideration by the Commission. So it was clearly the primary focus of the proposed evidence that the parties were to bring on Monday that the parties address what actually occurred on Wednesday and continuing because the key factual contest which was relevant to the question of a 127 application was whether industrial action was occurring within the meaning of the Act. That was the primary evidentiary issue and that is primarily what Mr Jukes' statement has addressed. Now, as it transpired yesterday, Mr Jukes who qualifies himself as the HR manager, who sets out a chronology of the relevant events and a relevant piece of evidence in that chronology is the commissioning of the report, and the then goes on to deal with the actual work patterns.

PN655

Mr Jukes was then subjected to quite extensive cross-examination about safety issues and the legitimacy or otherwise of the concerns of the employees about the issue of respirable dust in the tunnels. And that's entirely a matter for the unions, we don't complain about that and we didn't, about that evidence being called or that that cross-examination was not relevant to the issue. But insofar as there appeared to be a significant shift in the union's position from focussing on dealing with the cases to what actually occurred and whether industrial action took place within the meaning of the Act, to whether there was some justification or reasonable explanation for why it occurred, which is a different aspect. The case shifted a bit and the company was not on notice of that, and in the circumstances if there is going to be - if the Commission is going to be told that it is relevant to have regard to the concerns of employees about the safety issues then surely it is appropriate for the Commission to have the best evidence about that and it's somewhat surprising that the unions would resist so strongly the project safety manager being called to speak directly about the safety concerns and what the company did.

PN656

And if it's going to be submitted to the Commission that the company itself has been at fault in some way in the way in which it has dealt with this issue or that the safety concerns are legitimate or justify in some way the taking of industrial action, then, in our submission, it is appropriate for the best evidence of that to be available. Mr Brennan is available and we would like to call him as part of our evidence-in-chief. If the Commission considers that inappropriate, we understand that the WorkCover inspector has been summonsed by the unions and is going to be asked to give evidence. Depending on what evidence comes from the WorkCover inspector, and clearly his evidence will go directly to the safety issue and he will not be concerned with what the actions of employees may or may not have been, then the other way we can deal with Mr Brennan's evidence is to reserve the right to call him in reply if necessary, if the union is going to rely on safety as a relevant factor in the Commission's discretion whether or not to grant the application.

PN657

MS CHARLSON: Commissioner, might I respond?

PN658

THE COMMISSIONER: Yes.

PN659

MS CHARLSON: Commissioner, I would entirely agree with Ms McKenzie that the issue before the Commission was whether in fact industrial action took place. It's the case of the definition contained in section 4 of industrial action provides a specific exclusion and I will just find the relevant section and read it for the record, it does not include:

PN660

(g) Action by an employee if the action was based on a reasonable concern by the employee about an imminent risk to his or her health and safety and the employee did not unreasonably fail to comply with the direction of his or her employer to perform other available work, whether at the same or another workplace that was safe and appropriate for the employee to perform.

PN661

So it is the very issue of whether industrial action took place that we are concerned with. It's the submission of the union that in fact it was an industrial action, it was action that falls within that subsection (g) of the definition of industrial action within section 4 of the Act. We would submit again, that it was at all times squarely before the applicant that we were concerned about these issues and that we intended to argue that these were our areas of concern and we think it's unreasonable now for the employer, having known that and choosing to put on only one witness, the IR manager, to now resile from that and attempt to put on a different witness. And that's particularly given that the employer was notified at the same time as the Commission that we intended to call the WorkCover inspector, they knew that that was going to be our argument, they knew that from word go, Mr Mallia made that very clear.

PN662

The fact that there was another argument as well doesn't take away from the fact that this argument was put squarely before the Commission and the employer and in addition, the employer has dealt with our argument in the same that was put on, admittedly by a person without a great deal of direct knowledge but that was the person the company chose to put on. And we say the company has made their bed and really should lie in it. In addition, Joe Brennan, who the employer now intends to call, was in court all day yesterday. So he was here, he was available, the company chose not to call him and we say that it's not fair now for the unions having already heard the applicant's case to have the applicant's case changed and for us to have to respond to a new case put by the applicant when they already knew what we were going to refer to and had the chance to put on evidence about that, Commissioner.

PN663

THE COMMISSIONER: I don't see that the case is changing or there's a new case emerging but I do accept, in fact in my own mind, my own notes from yesterday, I did record that it was amazing that the expert in the field wasn't being called. But I don't regard this hearing or any hearing before the Commission as one which has a cut off point when either party can call witnesses or decide to present evidence despite it not being an ongoing feast or a moving feast. Do you still intend to call the WorkCover inspector?

PN664

MS CHARLSON: Yes, Commissioner, he is here today. And there are some other matters I wanted to raise with you as well before we commenced to enter substantive proceedings.

PN665

THE COMMISSIONER: Well, maybe we can talk about these programming things now because my view is that if WorkCover does give evidence, well, then even without Mr Brennan being given evidence-in-chief, I think the relevant company officer is entitled to present it either in rebuttal or in-chief. And I should remind both parties that this is not a court of law and I am not bound by the formal of rules of evidence. I want to ascertain all of the factors, especially the safety issues because at the end of the day, in either granting or not granting an order, I want to be fully appraised of the safety aspects of this matter because I think that's what it all deals with. And I won't say any more.

PN666

MS McKENZIE: Can I say, the primary reason, I suppose, why we thought it was appropriate to call Mr Brennan in chief was that we were concerned that he might not otherwise be able to be present when the WorkCover inspector was giving his evidence but if the Commission gives leave for him to remain, because he is the person who is best placed to instruct me in relation to anything that comes from there, then I am happy to call him in reply and that may assist the unions because he will be able to deal with anything form the WorkCover inspector at the same time, but I am in the Commission's hands.

PN667

THE COMMISSIONER: Well, I didn't know he was here yesterday so he has already been sitting in the proceedings.

PN668

MS CHARLSON: Commissioner, would now be an appropriate time to raise another of our concerns?

PN669

THE COMMISSIONER: Yes, please.

PN670

MS CHARLSON: The first is that we had some representatives from the OHS committees who we wish to have present today. They have been denied permission by the company to appear before you today so we are concerned about that matter and we wish to raise it with you. Perhaps if, in the event that we don't finish today, a direction from the Commission might be forthcoming if you considered it appropriate, that those people be allowed to attend the Commission in order to give evidence if required on the next occasion.

PN671

THE COMMISSIONER: Right. Well, do you anticipate that they will be required to give evidence?

PN672

MS CHARLSON: Entirely possibly, Commissioner. I can't give you any more certainty than that. As you see, things are changing before us so it's difficult for us to know what evidence we need to respond to but there are certainly matters that those people are equipped to give evidence about that people who are here today aren't equipped to give evidence about.

PN673

MS McKENZIE: Are we talking about the whole committee?

PN674

MS CHARLSON: No, we are talking about individual representatives from various crews who are on the committees.

PN675

MS McKENZIE: Delegates, do you mean delegates?

PN676

MS CHARLSON: No, actually I wasn't talking about delegates. Commissioner, there are other couple of matters if I might.

PN677

THE COMMISSIONER: Yes.

PN678

MS CHARLSON: The first one is that Ms McKenzie has kindly just provided us with the documents that we called on yesterday of both the Australia standard and the report but that was only a matter of minutes before you came in and we haven't yet had a chance to consider those. You may recall that we reserved the right to cross-examine Mr Jukes on these documents as they are referred to in his statement. We would like a chance to consider the documents and then cross-examine Mr Jukes as foreshadowed. The second thing is that I have here a petition and I don't have copies to hand up, it's a petition that was circulated amongst the workers on the site in respect of these proceedings.

PN679

It was signed by, I think, 84 individuals but they signed it on the understanding that their names wouldn't be revealed to the employer because they are concerned about future victimisation. So what I would like to do if you will give me leave is to read the text of the petition onto the record so that the employer is aware of what the petition says but not aware of the individual names of employees who have signed the petition.

PN680

MS McKENZIE: We will object to it, obviously. I mean, how do we know who has written it, who has signed it. It's very convenient to say that people sign these things and they're so scared of victimisation - there is no evidence that they would be victimised so the Commission is being asked to treat as evidence a statement which it then is told is signed by 80 people who we have got no way of verifying are even employees of ours.

PN681

MS CHARLSON: Commissioner, we are able to hand the statement to you, for your examination, but it was signed by people on the understanding that it be confidential between them and the Commission and that the employer, their employer, not have access to that document for understandable reasons. So I am in your hands. I am happy to read the text onto the record irrespective or whether you accept it as veracious material.

PN682

THE COMMISSIONER: I won't accept it as evidence but I will accept it as a statement from the bar table. If you can just read the text of what the message says.

PN683

MS CHARLSON: Thank you, Commissioner. It says:

PN684

Petition to the Australian Industrial Relations Commission in matter no. C20052026. The undersigned are employed on the M2 as tunnellers and support workforce. We are required to work above and below ground. This work creates a considerable amount of dust. We wish to express our concern about the safety, particularly the exposure to silica dust. Our concerns have been relayed to our employer, the Thiess Hochtieff Joint Venture. Our employer has not been able to show us that our safety, particularly underground, will be guaranteed. We want our employer to properly, and in a transparent way, assess the risk and put in place measures to ensure our safety. We understand that our employer has sought orders to prevent alleged industrial action. We wish the AIRC to take into consideration that our concerns about exposure to silica dust and the consequential effects of exposure are real and legitimate concerns.

PN685

And that is signed by some 84 individuals employed by the company.

PN686

THE COMMISSIONER: Thank you.

PN687

MS McKENZIE: Well, I could equally make a statement that the company is very concerned of the victimisation of those people in signing that petition, where does it get us? Commissioner, perhaps it might be an appropriate time to raise a procedural matter for us. Given that it has now been foreshadowed that, well, we know that Mr Jukes is going to be cross-examined further, we know that the WorkCover inspector is going to be called, we know that Mr Brennan is going to give some evidence and we now are told that there may be some members of occupational health and safety committees who may be required to give evidence, that we are not going to finish today. And I don't know whether it's a convenient time to do it now or later but perhaps I can foreshadow that the company would like to repress its application for an interim order on the basis that this matter is clearly going to go over to further hearing.

PN688

And when it is an appropriate time to put the submission, it will be our submission that the basis' upon which the Commission declined to make an interim order on Thursday have - at least those matters have been addressed in evidence and there is sufficient evidence before the Commission for the company to wish to repress the application in the context that this matter appears to be likely to go on, subject to the Commission's availability obviously, some further days and the evidence before the Commission is the action is continuing.

PN689

THE COMMISSIONER: My interim view about an interim order is that I am not yet convinced that the industrial action, which I am satisfied is occurring, is not related to a genuine concern about health and safety. Therefore, I would not - - -

PN690

MS McKENZIE: It needs to be, in our submission, with respect, it needs to be far more than a genuine concern about health and safety. It needs to be taken because of an imminent risk to the health and safety of the employees and the fact that there is a genuine concern about health and safety will not in itself justify the taking of unlawful industrial action. And Commission will recall that the primary concern of the company in both this matter and previous matters has been the propensity of the unions and the employees to take industrial action rather than have genuine concerns dealt with in an orderly and proper way with work continuing normally. Now, perhaps on that basis, we can ask that the unions address first any evidence that they have about imminent risk to health and safety because the evidence of Mr Brennan will be that there are, and have been throughout this whole period, employees of Thiess Hochtieff Joint Venture who are members or eligible to be members of the three unions here who have continued to work their normal work arrangements working dust masks throughout the entire dispute.

PN691

And that the employees who are taking this action are a portion only of the workforce who are engaged in underground tunnelling who are affected potentially by exactly the same issue. Now, that cannot be denied, in my submission, by the unions that there are employees who are continuing to work their normal full rostered shifts, including overtime and taking meal breaks underground in exactly the same conditions that the unions are trying to suggest give rise to an imminent risk to health and safety.

PN692

THE COMMISSIONER: All right. Well, I think the evidence of the WorkCover inspector and also Mr Brennan is going to be very important.

PN693

MS McKENZIE: Yes, indeed.

PN694

MS CHARLSON: Commissioner, would you like me to respond to that?

PN695

THE COMMISSIONER: Yes, please.

PN696

MS CHARLSON: In respect of Ms McKenzie's comments about an imminent risk, we would say that we have been discussing from word go, matters that do present an imminent risk to health and safety. If one breathes in silica dust now, one may be at risk of developing a disease in the future. Nevertheless, the risk of breathing in that dust is current and present and therefore imminent and we would say that what we are talking about is an imminent risk. The fact that some employees may or may not be not shortening their shifts or however we like to describe what's happening, doesn't in any way detract from whether or not there is or isn't a risk. The fact that some employees might be exposed to greater risk than the people who are doing what the company alleges that they're doing is, we would say, not an argument about how great the risk is or is not. So we would say that what we have been talking about from word go is imminent risk and we would entirely support any argument that says the case is that what is taking place is not industrial action, it's action in relation to reducing an imminent risk due to occupational health and safety.

PN697

THE COMMISSIONER: Yes. Walking down the street is an imminent risk, it's the degree of the risk I think which is the key to this question and the evidence of WorkCover and of Mr Brennan's is going to be critical in my view. Is the WorkCover inspector available to be called?

PN698

MS CHARLSON: Commissioner, he was here earlier and I am told he's outside. You would like to take his evidence now?

PN699

THE COMMISSIONER: Well, if you are ready to proceed on that basis or is there any more procedural matters?

PN700

MS CHARLSON: The only matter that we would be concerned about is leaving Mr Jukes hanging, given that he hasn't completed his evidence.

PN701

THE COMMISSIONER: I thought you hung him, tried to hang him yesterday.

PN702

MS CHARLSON: No, indeed. We merely tried to illicit more information than was currently before us.

PN703

MS McKENZIE: You asked the wrong person, didn't you.

PN704

MS CHARLSON: We asked the person who was put before us to ask questions of. Would you prefer to interpose the WorkCover inspector?

PN705

THE COMMISSIONER: Well, I am not running your case, it's up to you actually.

PN706

MS CHARLSON: Commissioner, I think the best thing to do given that we are going to be putting matters about the Australian standards and the reports put out by Pickford Rhyder to the WorkCover inspector is to ask for a short adjournment for us to consider the material that we received before the commencement of proceedings this afternoon. I would say probably 15 minutes would be sufficient for us to have a cursory look at that information.

PN707

THE COMMISSIONER: We will adjourn for 15 minutes.

<SHORT ADJOURNMENT [3.17PM]
<RESUMED [3.36PM]

PN708

THE COMMISSIONER: Ms Charlson?

PN709

MS CHARLSON: I call Mr Rodney Dubois, WorkCover inspector. I will go and get him.

<RODNEY DUBOIS, SWORN [3.36PM]

PN710

THE COMMISSIONER: Thank you, Mr Dubois, for coming. Ms Charlson?

PN711

MS CHARLSON: Thank you, Commissioner.

<EXAMINATION-IN-CHIEF BY MS CHARLSON

PN712

MS CHARLSON: Mr Dubois, could I please ask you to state your profession for the record?---I am a safety inspector with the WorkCover Authority.

PN713

And can you explain what you do in the course of your everyday work?---At the moment I presently do complaints in construction sites.

PN714

For example?---Every day I go to a different kind of complaint, no fall protection in building site, claim fell over, any kind of claim, housing, scaffolding, anything like that.

PN715

And how long have you been a WorkCover inspector?---15 years.

PN716

Right. And what did you do before that?---I am a bridge and - - -

PN717

Thank you, Mr Dubois. I understand that you were called out to a meeting at Thiess Hochtieff Joint Venture on Friday 4 March 2005, is that correct?---That's correct.

PN718

Could you please explain what your involvement was in that meeting?---Well, on Thursday my acting manager gave me a fax or a letter received by Steve Dixon about the job so - to do with the new standard. So I went to the site, we met with the union on site in the morning, a couple of chairmen and some management, some of the safety officers were on the job and we had a discussion on the dust.

PN719

So what time was that meeting, Mr Dubois?---10.30.

PN720

And how long did that meeting go for would you say?---Two hours.

PN721

Two hours? Right. Can you clarify who was there, there were representatives form the union, do you say?---Yes.

PN722

Who were they?---Steve Dixon, Lawrie Doherty, Dick Whitehead, one of the delies, the gentleman sitting at the back, a couple of the safety committee representatives.

**** RODNEY DUBOIS XN MS CHARLSON
PN723

And who were there as representatives of the workers, do you know any of those?---No.

PN724

And of the management of the company?---There was the safety officers that were there, Geoff Butler, Joe Brennan, I think that was about it.

PN725

Right. And did you inspect in question, the tunnels, while you were at the
site?---After the meeting, yes I went do with George Khooti who is the penciller for the tunnelling code of practice committee.

PN726

And can you explain what you saw on that site?---When I went down?

PN727

Yes?---Well, we went down, there wasn't - the tunnel boring machine wasn't actually working at the time, I think they were doing maintenance on it. We went down, had a look at the tunnel machine, another boring machine, just ran through some of the things for George Khooti's behalf really. There were a few guys working in the stations and there was a few guys around but not many.

PN728

So how would you describe the temperature conditions in the tunnel?---It was rather warm.

PN729

Rather warm. How warm would you say?---Warm enough for me to have sweat running down my face.

PN730

Really. Would you describe the wet conditions?---It was moist, yes.

PN731

It was moist. In the sense of humidity?---Very humid there.

PN732

And in respect of water present, was there any water present?---Not a great deal of water, no, not where I was anyway.

PN733

But there was some water?---Yes.

PN734

Where was that?---On the ground of the tunnel.

PN735

On the ground of the tunnel. Okay. Mr Dubois, what did you understand when you went out to the WorkCover site that the issue that workers were complaining about was - - -

**** RODNEY DUBOIS XN MS CHARLSON
PN736

MS McKENZIE: Well, I object to that. There is no evidence the workers were complaining. Perhaps the question can be phrased differently. Maybe
Mr Dixon's letter can be produced.

PN737

MS CHARLSON: I would have said that we have heard evidence that workers had complained yesterday from Mr Jukes, not from Mr Dubois.

PN738

MS McKENZIE: Sorry. My only point was Mr Dubois hasn't - he said he was there in response to a letter that was received from Mr Dixon. I don't know what was in that letter.

PN739

THE COMMISSIONER: I have got a copy.

PN740

MS CHARLSON: Well, I am happy to rephrase the question.

PN741

THE COMMISSIONER: Okay. Thank you.

PN742

MS CHARLSON: The question is then, what was the issue of concern discussed at the meeting?---The issue discussed at the meeting was the dust levels in the tunnel.

PN743

And at that meeting were you given a copy of this Australian standard by the company?---Yes.

PN744

And you have had a look at that, you're familiar with that now?---Well, I'm - - -

PN745

To some degree?---A little, yes.

PN746

Okay. And were you also given copies of two reports by a company called Pickford Rhyder consulting Pty Ltd by the company?---Yes.

PN747

And you have had a chance to have a look at those as well?---Yes.

PN748

Mr Dubois, what would you understand is the acceptable level of crystalline quartz silica dust in the air under that Australian standard?---Well, as of 1 January 2005 - - -

PN749

Yes, or both, before and after the change?---The standard was half but, like I said, I'm not an expert on the silica dust area at all but I do understand that as of 1 January 2005 the silica levels were reduced by half.

**** RODNEY DUBOIS XN MS CHARLSON
PN750

So do you understand now what the acceptable level is in that Australian standard?---Yes.

PN751

And what is that?---Point 2.

PN752

Point 2. Is that the level before or after the change?---Like I said I'm not an expert on it by any means.

PN753

Maybe if you have got copies of the reports with you as well, it might help to have those at hand, and the standard?---This is all the material I picked up on Friday when I was out there. Sorry, it's 0.2 down to 0.1.

PN754

And for what length of time is that?---I believe it's over an eight hour period.

PN755

And do you know what the standard is for a longer period of time?---No, but I don't know exactly but I'm led to believe that it doubles after a couple of hours and - - -

PN756

Sure. So would you think I was correct if I said that for 11 hours the correct standard would be 0.05 milligrams per cubic metre.

PN757

MS McKENZIE: I object to that. He said he doesn't know. How can he then be asked a question, would you say I am correct if I say this? He doesn't know.

PN758

MS CHARLSON: I am happy to leave the question, if he doesn't know, he doesn't know.

PN759

THE COMMISSIONER: Yes.

PN760

THE WITNESS: I don't know.

PN761

MS CHARLSON: Well, I am putting it to you that that is the case and on that basis I am going to ask further questions. Mr Dubois, can I please ask you to turn to these reports, do you have a copy with you?---Yes. Well, I have a copy of the stuff that I received on Friday.

PN762

Right. If you don't, Ms McKenzie might be kind enough to provide with a copy that she might not want?---Sure.

**** RODNEY DUBOIS XN MS CHARLSON
PN763

THE COMMISSIONER: I think the witness has it.

PN764

MS CHARLSON: You have it then, okay?---Is that the one?

PN765

THE COMMISSIONER: One of two.

PN766

MS CHARLSON: There are actually two?---Dated 18 February 2005.

PN767

One is the 10th and one is the 18th but I can turn to the 18th one if you have got that?---I've got the 18th.

PN768

MS McKENZIE: Sorry, Commissioner, the witness copy that I saw has got draft across it and I am just not sure whether it's actually the one. It just seems to have a draft order on - I will just see if we have got the final copy. Sorry, maybe if I could borrow your one from you.

PN769

MS CHARLSON: Commissioner, just to note that is the first time we have heard of their being a draft report but we're prepared to work on the basis that this is the final copy of the report but we would also like a copy of the draft report to be given to us. Is a copy of the draft report available, could we have - - -

PN770

MS McKENZIE: I don't know. I just happened to notice that the copy he had in the witness box had draft. I don't know where we got it from, whether it was provided to him by the unions or whether - - -

PN771

MS CHARLSON: We know that it came up yesterday. That was provided at the meeting on Friday when the unions were also present, the union had requested it, but wasn't provided with a copy.

PN772

MS McKENZIE: I will make inquiries. I am not sure whether there is any difference.

PN773

MS CHARLSON: Have you got the 18 February statement, Mr Dubois?---Yes.

PN774

You do? Okay. If I ask you to turn to summary and recommendations on the first page which is section 2, I will just read you a sentence if I may:

PN775

The occupation exposure standard for respirable reports changed on 1 January 2003 from 0.2 milligrams per metre cubed to 1, from 0 to 0.1 milligram per cubic metre.

PN776

That's in accordance with your understanding of the Australian standard?---Yes.

**** RODNEY DUBOIS XN MS CHARLSON
PN777

Mr Dubois, could I please ask you then to turn to part 4 of that report which is the workplace measurement results. Could I please ask you to look at the sample numbers, if we just read across, I will read them by number, that might be the most convenient way of doing it. I mean, if I could ask you to read the measurement per respirable reports in the last column. So if I read the first column and the location, if you could just read the last column and tell me if it is in excess of the standards set out in the Australian standard. For example, the first one is C277, and that is a test done at Epping, a bolting operator called Uri Hepi, could you tell me what the measurement was for him?---0.11.

PN778

And can you tell me if that is in excess of the standard?---It appears to be.

PN779

And that would be in excess of the standard for eight hours?---It appears to be.

PN780

And further in excess of the standard for 11 hours?---Yes.

PN781

Can we turn to C281, a test at Epping applying platform three metres high. What is that result there?---0.14.

PN782

Is that in excess of the standard?---Yes.

PN783

Both for eight and 11 hours?---Yes.

PN784

The one immediately below?---0.12.

PN785

That's Mr Franco Povic, is that in excess of the Australian standard?---Yes.

PN786

Can we move down then to C266 which is Sam Basilou, concreter of Deli Road. What is the testing there?---0.46.

PN787

And below him, 268C, Deli Road, Edward Denny, carpenter, what is the measurement for him?---0.62.

PN788

Would you say that those readings all considerably in some cases, exceed the Australian standard?---Yes.

PN789

Is that a matter of concern about occupational health and safety?---Yes.

PN790

MS McKENZIE: I object to that. I mean, what does that mean?

**** RODNEY DUBOIS XN MS CHARLSON
PN791

MS CHARLSON: I will rephrase the question if required. I mean, an answer was given to the question. Do these readings present concerns about safety to persons - - -

PN792

MS McKENZIE: Well, again, I object. The fact that readings may have been taken which show that there is an excess of the standard does not in itself, cannot in itself, raise concerns about safety. You have to ask, the person has to be asked about who is working, what the working requirements are and if, for example, relevantly, whether the employee, if the employee is wearing a dust mask would it be of concern. I mean, just to say does it raise a concern doesn't take the discussion anywhere.

PN793

MS CHARLSON: Commissioner, may I respond to that. I would submit to you that the fact that these levels are so high is a concern in itself, whatever measures the company take. These standards are set out to provide safe standards for breathing in this substance, this quartz. Some of those readings are more than six times the acceptable safe average, I would say that that in itself is a concern irrespective of what other measures the company has taken and even if those measures are adequate to ensure the safety of the workers which of course is another matter under dispute but I press the question on the basis that these figures present a safety concern.

PN794

THE COMMISSIONER: Okay. But what you have just said is a submission and I think the way in which you put the questions is leading the witness, that's the objection.

PN795

MS CHARLSON: I am happy to rephrase the question. What is your view of these statistics, Mr Dubois?---All I can say is that these statistics, the readings are higher than the Australian standards as is acceptable.

PN796

Are you familiar with any other samplings for respirable reports in the atmosphere?---No.

PN797

No. When you were in the meeting, there were a couple of issues discussed, or there were some issues discussed I take it. Can you explain in more detail to the Commission what those issues were, what the concerns were?---The concerns that were raised- - -

PN798

At the meeting, yes?---- - - at the meeting. Most of the concerns were raised were about high levels of dust in the tunnel.

**** RODNEY DUBOIS XN MS CHARLSON
PN799

Can you give any more information about that? What were the specific concerns about those high levels of dust?---Well, the union and the delegates and the chairpersons were obviously concerned about high levels of dust in the tunnel and the safety officer's response was to wear dust masks.

PN800

Right?---And then there became issues about wearing dust mask whilst in the tunnel for eight to 12 hours a day.

PN801

Right. And do you know, Mr Dubois, why they were concerned about the high levels of dust, what the risk is associated with silica dust?---Silicosis.

PN802

Silicosis. Can you explain to the Commission what that is?---Like I said, I am not an expert, I - - -

PN803

But to the best of your understanding?---It's a disease of the lungs.

PN804

And is that a disease - what happens if people contract that disease?---Well, I'm not an expert on it so I'm not really going to answer that question because I'm not an expert. I know it's a disease that effects the lungs and it hardens the arteries inside the lungs, I'm not an expert, I don't know.

PN805

Is it a potentially fatal disease to the best of your knowledge?---Yes.

PN806

It is. Mr Dubois, one of the issues I understand that was discussed in some detail at the meeting was the issue of the mask and you have referred to that?---Yes.

PN807

Can you explain to me what the concerns were in relation to wearing
masks?---Well, I had a concern with the health and safety people in the tunnel wearing masks all day.

PN808

And why was that?---Well, because they get wet, the guys don't want to wear them, they're uncomfortable, they're hot, you can't communicate in them, there's lots of reasons why you shouldn't wear a mask all day. After the meeting I went down myself for a couple of hours in the tunnel and found it very uncomfortable wearing a mask all day.

PN809

Right. Did you see anyone in the tunnel who wasn't wearing a mask?---Yes.

PN810

And what did you do about that?---I had a discussion with the safety officers.

**** RODNEY DUBOIS XN MS CHARLSON
PN811

Right. And do you know what happened as a result of that?---No.

PN812

Can you please explain to the Commission what your view is of the response of the company to the risk posed by the silica dust present in the tunnel?---I can only say what happened at the meeting. At the meeting we discussed the problem of silica and we discussed the problems of wearing a mask for eight hours in the tunnel if it's hot, when the blokes need to communicate. They didn't really have any answers. I didn't really have any answers either so I suggested that the chairman of the safety committees, because there's four or five safety committees within a tunnel, get together, have a discussion and try and work out what system to put in place to try and solve the problem.

PN813

Are there any specific problems to do with the masks for fitting different individuals?---Of course.

PN814

What would those be?---Some of the guys had facial hair, beards, they'd get wet.

PN815

Does the mask work if a person has a beard?---No.

PN816

Is there another kind of mask they could wear?---There's several kinds of masks they could wear that will fit the face but they weren't on offer on the day, it was only the paper masks while I was there. I don't know whether they actually provide proper masks for other blokes, I don't know.

PN817

And can you describe what the other masks that could be provided are like?---You could have the cartridge mask, the double cartridge, concealed cartridge, you could have the full breathing apparatus.

PN818

And could a person work for eight or 12 hours wearing such a mask?---They could but it's uncomfortable.

PN819

And would you say it was safe?---Well, I would say if it stops silica from going in their lungs then it prevents one hazard.

PN820

It prevents one hazard. Could it possibly pose others?---Possibly.

PN821

What would they be?---Communication problems under the ground, hot, fatigue, lots of problems from just wearing a mask all day.

**** RODNEY DUBOIS XN MS CHARLSON
PN822

Mr Dubois, your experience of wearing masks, what would you say best practice would be in relation to dealing with the stresses that you have talked about in relation to wearing masks?---I'm not an expert on wearing a mask, I can only go on the times that I've been in tunnels wearing a mask and they're uncomfortable, you can't communicate in them, they're hot. They're not comfortable to wear at all.

PN823

Would you be prepared to wear a mask for eight hours underground while you're working?---No.

PN824

No. And why is that?---Because, like I said, they're uncomfortable and you can't communicate. They're hot.

PN825

To the best of your knowledge, do you think those masks are effective in preventing the silica entering the lungs?---Good question. If they're worn correctly, changed when they're wet, worn to the right conditions, they probably work correctly, yes.

PN826

All right. And how often would they need to be changed?---I'm not an expert on that. When they're wet, when they're bent, frayed, I don't know.

PN827

And you're experience of wearing one of those in the tunnel recently, how quickly did it become wet?---It became moist, well, I was in the for two hours and it became moist while I was in there because I had sweat running down my forehead and into the mask.

PN828

And would you say then that the mask was effective?---I hope so.

PN829

Do you know what the mask is made of ?---Paper.

PN830

It's made of paper. Okay. Mr Dubois, can I ask you what your view is of the company's response to the questions and the concerns that were raised at the meeting on Friday?--- Look, the response was as they were concerned about the workers, of course, and that they had put things in place to try and solve the problem but in the meantime the quickest way to solve the problems was to provide with masks and that's about all I can say.

PN831

Would you say that that's an adequate response?---Well, it's better than nothing. That's the best response they could do at the moment. I don't know what else they could have done in a short time.

**** RODNEY DUBOIS XN MS CHARLSON
PN832

For example, do you think that it would have reduced the risk to reduce shifts, length of shifts if 12 or 13 hour shifts are being worked wearing the masks?---I wouldn't like to wear a mask for more than eight hours - more than two hours to tell you the truth.

PN833

Do you think it was a practical solution that was being proposed by the company, that their employees wear this mask for - - - ?---I don't think it's a practical solution, no.

PN834

No. Mr Dubois, what do you think of the company's direction to employees that they wear these masks for lengthy periods with no breaks?---I think that they are uncomfortable, but these are only my personal opinions. WorkCover doesn't have an opinion on it, this is just my personal view.

PN835

You're a person who has inspected the site and been at the scene?---Yes.

PN836

You have got more information than many of us in this room?---Well, they're not comfortable, you can't communicate, I wouldn't like to wear one for eight hours. That's about all I can say. I wouldn't wear one for eight hours.

PN837

No further questions. Thank you Commissioner. Thank you, Mr Dubois.

PN838

THE COMMISSIONER: Thank you. Ms McKenzie?

<CROSS-EXAMINATION BY MS MCKENZIE [3.58PM]

PN839

MS McKENZIE: Thank you, Mr Dubois. Now, you gave evidence that you were called out to the site on 4 March following a letter which WorkCover received from Mr Dixon, I think you said, from the CFMEU?---Yes.

PN840

Do you have a copy of that letter with you?---Yes.

PN841

Perhaps I can call for the letter to be produced. Does the witness have a copy with him?---I have my copy if it's the same letter.

PN842

Sorry, can I just ask you to return one of those if you don't need both of them. Thanks very much.

EXHIBIT #C4 LETTER FROM STEVE DIXON TO WORKCOVER

PN843

MS McKENZIE: Now, Mr Dubois, you were given a copy of this letter by your manager, I take it?---Yes.

PN844

And you were asked in response to this letter to actually go out and conduct an inspection of the site, is that correct?---Well, to go to the site, yes.

PN845

And what were you asked to do at the site by your manager, what did your manager ask you to do?---Well, I think just attend to this letter.

PN846

Yes. And what did you then decide to do in response to this letter?---I rang Mr Dixon, I rang Mr Brennan, and the next day I went to the site.

PN847

And when you rang Mr Brennan, when was that? On the Friday you received this or the Thursday afternoon?---On the Thursday afternoon but I was already going to the site on the Friday morning anyway. I had already arranged with George Khooti who is the penciller for the code of practice for tunnelling.

PN848

I am sorry, who is Mr Khooti?---He's the penciller - I don't know what you'd call him. He does all the writing for the tunnelling code of practice and he hadn't been into a tunnel so I was taking him down to the tunnel to have a look.

PN849

I see. And you attended on the Friday morning and I think you said that you had a two hour discussion with a group of people?---Yes.

PN850

And the concerns that were behind this letter were communicated to you?---Yes.

**** RODNEY DUBOIS XXN MS MCKENZIE
PN851

And you then had an inspection underground?---After the meeting I went underground with Geoff Butler and George Khooti.

PN852

Yes. So was the purpose of going underground primarily to give Mr Khooti the experience of going underground which was the original purpose of the meeting?
---Yes.

PN853

So you weren't - do I take it from that that you weren't, in fact, conducting a formal inspection of the tunnel pursuant to this letter at the time you went underground?---I wasn't conducting a formal inspection but I certainly highlighted some problems that I saw whilst I was under there. Not major problems but issues that were safety related.

PN854

Thank you. Now, as an inspector under WorkCover, you have powers under the occupational health and safety legislation, do you not?---Yes.

PN855

And those powers include taking action where you become aware of what you believe may be non-compliance with the occupational health and safety regulations or Act?---Yes.

PN856

And you have the power to issue prohibition notices, don't you?---Yes.

PN857

And you have the power also to issue improvement notices, where it's something less serious perhaps than a prohibition notice but still something that needs rectifying?---Yes.

PN858

Yes. And you have issued those in the past to employers?---Yes.

PN859

Have you previously visited the Thiess Hochtieff site?---Yes.

PN860

How many occasions have you visited?---Four or five.

PN861

And have those visits been visits that you have initiated or have they been responsive to requests from the site to visit?---They have been from requests.

PN862

And do those requests come from the CFMEU?---From the CFMEU or the AWU, yes.

PN863

Yes. So is your evidence that on the previous four occasions that you visited the site, it has been at the request of one of the unions?---It may have been an anonymous complaint, I'm not sure. But I've been there at a request of either a complaint or the unions.

**** RODNEY DUBOIS XXN MS MCKENZIE
PN864

Yes. And on the occasion that you visited on 4 March, it is the case, isn't it, that no prohibition notice was issued to Thiess Hochtieff by you?---That's correct.

PN865

And no improvement notice was issued by you?---That's correct.

PN866

You gave some evidence that when you were underground, you observed some employees not wearing dust masks?---Yes.

PN867

And I think you said that you spoke to the company about that?---Yes.

PN868

And you were asked by Ms Charlson whether you were aware of whether any action was taken in relation to those?---Yes.

PN869

What was your answer to that question?---I'm not aware.

PN870

Do you not recall Mr Brennan telephoning you afterwards and telling you that disciplinary action had been taken against those employees?---He did ring me and say some action was taken against one of those gentlemen that was found underground, yes.

PN871

Do you remember him telling you that the supervisor of those employees had had his employment terminated because the company regarded that as such a serious breach?---Yes.

PN872

So you understand, don't you, that this company takes a very serious attitude to safety and compliance with its obligations?---I understand that there was a gentleman sacked underground that wasn't wearing a mask but I probably came across 50 per cent of the gentlemen underground not wearing masks and they didn't get sacked. So there was no action taken against any of that.

PN873

These are employee of Thiess Hochtieff?---These are employees that were underground at the time when I did an inspection.

PN874

I see. Now, you were asked some questions about the Pickford Rhyder report, can I ask you to have a look at the exhibit M7 which is the 18 February report. Have you heard of Pickford and Rhyder consulting?---Yes.

PN875

Yes, and what is your knowledge about that business?---They're consultants.

**** RODNEY DUBOIS XXN MS MCKENZIE
PN876

Yes. Occupational, hygiene measurements and solution consultants, is that correct?---Yes.

PN877

Do you regard them as reputable consultants?---One of many, yes.

PN878

You would have no reason, would you, to question the expert opinion they express in their report?---No.

PN879

Could I ask you to turn to the second last page under the heading Respiratory Protection where they refer to the use of disposable P1 type respirators. Are you familiar with the different types of respirators or dust masks that are available?
---Yes.

PN880

And can you explain what a P1 type respirator is?---It's one of those paper dust masks.

PN881

Do you know what a P2 mask is?---No, not really.

PN882

You don't know that a P2 mask is a more effective mask than a P1 mask?---No, it probably is but I don't know the exact workings of the P2.

PN883

I see. Do you know what type of masks are being in use at Thiess Hochtieff Project at the moment?---No, only the paper masks.

PN884

Do you know whether it was a P1 or a P2?---No, I don't.

PN885

Now, if I just ask you to look at the last page where, under health surveillance it says:

PN886

New South Wales Occupational Health and Safety Act and the New South Wales Occupational Health and Safety regulation 2001 states that if a risk assessor indicates a worker may be exposed to a hazardous substance then health surveillance is required.

PN887

Do you agree with that statement?---Yes.

PN888

And you understand, don't you, that standards which are published in relation to things such as dust levels then indicate levels which require a risk management by an employer?---Yes.

**** RODNEY DUBOIS XXN MS MCKENZIE
PN889

It's not the case, is it, that the exceeding of a standard in itself means that the work can't continue, is it?---No.

PN890

They're not standards- - - ?---There should be assistance put in place to address the problem.

PN891

And you're familiar with the term, hierarchy of control measures?---Yes.

PN892

Can I show you an extract from the occupation health and safety regulation 2001 which is a definition or explanation of meaning of control of risk, I just ask if you can tell whether you are familiar with that regulation?---Yes.

PN893

Perhaps if I can have that back so I can show it to Mr Charlson. Now, I think you said you are familiar with the control of risks and would you agree that - perhaps for the benefit of the Commission I might read it out because, I'm sorry, I only have the one copy. Regulation 5, meaning of control of risks:

PN894

For the purposes of this regulation, an obligation to control a risk to health and safety in any case in which the elimination of the risk is not reasonably practical is an obligation to take the following measures in the order specified to minimise the risk to the lowest level reasonably practicable.

PN895

And then the measures are listed in the order specified -

PN896

(a) firstly substituting the hazard giving rise to the risk of a hazard that gives rise to a lesser risk. Secondly, isolating the hazard from the person put at risk. Thirdly, minimising the risk by engineering means. Fourthly, minimising the risk by administrative means, for example, by adopting safe working practices or providing appropriate training instruction and information. And fifthly, using personal protective equipment.

PN897

In the middle of that regulation. You would agree, would you not, Mr Dubois, that the requirement for employees to use personal protective equipment is the final line of defence in an employer's attempt to control the risk?---The very last straw, yes.

PN898

And I think you said in your evidence a moment ago that you don't know what else the company could have done to control this risk?---I personally don't know, no.

**** RODNEY DUBOIS XXN MS MCKENZIE
PN899

And you would agree that the requirement for employees to wear dust masks is a legitimate means of controlling the risk along with all the other measures?---I don't know that I agree with that at all.

PN900

You don't?---No. I agree that, yes, they've stopped the silica dust from going into the gentlemen's lungs, the worker's lungs by providing dust masks to stop the dust from going into their lungs. Whether they have had - whether they've thrown those four pieces that you first mentioned, hierarchy of control, machine it out, whatever, I don't know that they've actually done the events to do that. The only thing I know is that when I come to the site everybody has to wear a dust mask.

PN901

Yes. Are you aware, Mr Dubois, that other employees of the company who are engaged in other tunnels on the site in the stations area, work with dust masks as well?---Yes.

PN902

Yes. And did the company inform you of the working arrangements for those people, the hours that they are working and the wearing of dust masks?---I think they're only working eight hours underground.

PN903

Yes. Well, if I told you that those employees were working shifts of 10 hours wearing dust masks, were you not aware of that before?---I would have concern that a guy wearing a dust mask for 10 hours underground without breaks - - -

PN904

What would that concern be?---Well, the concern would be, how do they measure how his dust mask is performing underground, where does he change his dust mask if he wants to change it underground because there's no areas under there that are clear and free from dust. So I have a concern for the health and welfare of the guys underground, yes.

PN905

Can I ask you to - I think you were asked whether you were familiar with the standard?---Yes.

PN906

And I think you were - I don't know whether you were taken to the relevant - - - ?---As I explained the only thing I know about this standard is that on 1 January 2005 the standard was reduced to basically half of what it was.

PN907

Yes. And I think you were asked some questions about whether that was over an eight hour period or not?---It was over an eight hour period, yes.

**** RODNEY DUBOIS XXN MS MCKENZIE
PN908

Are you familiar with the expression TWA?---Time working limits?

PN909

Yes. And you know don't you, that that is an average figure so when one sets a standard over eight hours it's over an average of eight hour period?---Yes.

PN910

And do you know that that average takes into account small periods where up to 15 minutes at a time when, for example, dust mask is not required to be worn. You understand that, don't you?---I understand that underground in this tunnel you have to wear gas masks all the time. And if you're under there for eight hours, you don't have a 15 minute gap when you don't wear the mask, you've got it on for eight hours. They stay down there for lunch.

PN911

Mr Dubois, do you have any plan to return to the site, the Thiess Hochtieff site?
---I imagine I will return to the tunnel, yes.

PN912

Well, I'm sorry, I should have been more specific. Do you have any fixed intention to return in relation to the issue that you went out on?---Yes.

PN913

Yes. And when is that?---Well, if I don't hear from the safety committees over the next couple of weeks then I shall return.

PN914

And when you say, if you don't hear from the safety committees, is it the case that you requested the safety committees to undertake further consultation with employees?---With employees and then with management, yes.

PN915

Yes. And what did you understand to be the purpose of that consultation?---The purpose of the consultation is to actually work out what the blokes themselves were working down there in those eight to 12 hour periods, what they will accept for their own health and well being.

PN916

Yes. And you expect that consultation to take some period of time, do
you?---Maybe a couple of weeks, yes.

PN917

And you agree, don't you, that the safety committee is the appropriate body to pursue the measures to be taken in relation to the management of these safety concerns?---The occupational officer, yes they are, yes.

PN918

Yes. Are you familiar with the enterprise agreement that applies to the employees at this site?---No.

**** RODNEY DUBOIS XXN MS MCKENZIE
PN919

Finally, I think you were asked a question about what you think you understand the masks to be made of. I think you said you believed them to be made of paper?---Something like paper, yes.

PN920

I put it to you that's not correct, they're made of polypropylene. Do you know that or not?---No, I didn't.

PN921

Do you know for a fact that they're made of paper or that's just your understanding?---That's just the way they feel to me, that's all.

PN922

I see. I have got no further questions.

PN923

THE COMMISSIONER: Thank you. Ms Charlson?

PN924

MS CHARLSON: Commissioner, I have got a few questions in re-examination.

<RE-EXAMINATION BY MS CHARLSON [4.17PM]

PN925

Mr Dubois, you were talking about employees having lunch below ground. If I could take you back to the Pickford and Rhyder consulting report, the 18 February one.

PN926

MS McKENZIE: I am sorry. I don't think that did arise, I didn't ask him any questions about taking lunch underground.

PN927

THE COMMISSIONER: It was one of his answers, or a statement I think.

PN928

MS CHARLSON: It is page 10 of that report, just at the top of that page. I will just read out the relevant sections so everyone knows where I am?---This one only goes the one page.

PN929

Really?---No, I've got it, that was mine, the draft copy.

PN930

Mr Dubois, if you could just look at that page 10 there, the section I am interested in is where it says, between Macquarie Park and Epping, 10 February 2005, static, static. And there are two measurements, one is a crib room concrete lining at point 1 and the crib room form lining, 0.14. Mr Dubois, is that second standard in excess of the Australian standard for eight hours?---It reads so, yes.

PN931

And is the first reading in excess of the Australian standard for 11 hours?---Yes.

**** RODNEY DUBOIS RXN MS CHARLSON
PN932

Mr Dubois, is it safe for employees to eat lunch in a room with - did you care to object?

PN933

MS McKENZIE: No.

PN934

THE WITNESS: I can't answer that because I don't know whether there were gentlemen sitting in the room eating their lunch when this reading was taken or not, I've got no idea. When the reading was done in the green room I don't think it would have been safe on the one floor, but I don't know.

PN935

MS CHARLSON: So in the event that men were eating lunch in a crib room with that reading, that would be unsafe in your view?---Yes.

PN936

Mr Dubois, you were talking about the systems under cross-examination which a company should implement in order to ensure health and safety. Can you tell me what those systems that you are talking about are, in relation to crystalline quartz dust?---I'm not an expert on that area. I know that I've spoken with the safety officers for these ..... and they've said they've looked at other systems.

PN937

What systems have they looked at?---Scrubbers and things like that to try and eliminate the dust problem.

PN938

Anything else? Anything to do with the air in the passage?---I can't - - -

PN939

Were there any complaints about the ventilation?---Whilst I was at the site?

PN940

Yes?---In my inspection or whilst - - -

PN941

During the meeting, complaints about the level of dust and the ventilation?---Yes.

PN942

There were?---Yes.

PN943

What did the company say they would do about that?

PN944

MS McKENZIE: I don't know if this really arises out of cross-examination, whether there were complaints and what the company said in response to those complaints. It really is off on a new line of questioning.

PN945

MS CHARLSON: I would submit that it does arise out of re-examination. The systems that were being used by the company to deal with the problem were referred to a number of times under cross-examination. I am just to trying to elicit what those were.

**** RODNEY DUBOIS RXN MS CHARLSON
PN946

THE COMMISSIONER: Yes. You can ask the question.

PN947

THE WITNESS: The safety officers said - don't quote me on this, but they addressed the problem of dust, fix the problem right now and then you can stop the dust from going into the workers lungs, and to prevent that from happening those masks were issued until, and I believe that they're still looking at systems to try and cut the dust silica levels in the tunnel.

PN948

Do you know what those were?---No.

PN949

Would they be to do with ventilation in the tunnel?---I presume they would be to do with ventilation and things like that, yes.

PN950

Mr Dubois, the occupational regulations and health surveillance were referred to, I don't know if you are familiar with regulation 165 of the occupational health and safety regulations but I will read it if I may, for the record:

PN951

Employer to provide health surveillance. An employer must provide health surveillance for each employee who is exposed to a hazardous substance if there is a risk to the health of the employee as a result of that exposure.

PN952

And it goes on at some length. I think you had mentioned both under examination-in-chief and cross-examination that quartz silica is a hazardous substance for the purpose of that regulation, is that correct?---It is but I haven't mentioned it.

PN953

You haven't mentioned it. Well, I apologise for going to a new area. I misunderstood and thought it had been referred to. Do you know what surveillance the company is doing in respect of that contact by employees with a hazardous substance?---I'm afraid I don't.

PN954

Mr Dubois, were you happy with the resolution that was reached at the meeting on Friday?---No.

PN955

What did you think should have happened at that meeting?---Well, I believed that the safety committee could come up with systems for management and maybe rectify - I don't know, I'm not an expert, so that's why I asked the guys that are on site to go back and talk and come up with some solutions and put it to management.

PN956

So that's how it should have been resolved?---I was hoping it would be resolved that way, yes.

PN957

No further questions, thank you Commissioner and Mr Dubois.

PN958

THE COMMISSIONER: Thank you, Mr Dubois, you may step down.

<THE WITNESS WITHDREW [4.22PM]

PN959

THE COMMISSIONER: Where does that leave us?

PN960

MS McKENZIE: Well, I was going to suggest that Mr Brennan now be called, but in view of the time and the comparative importance of his evidence I was going to suggest that Mr Jukes be left hanging for a little bit longer, but I am in the Commissioner's hands.

PN961

THE COMMISSIONER: Well we can start with Mr Brennan, but I have to adjourn no later than five. I have relisted the matter for 9.15 tomorrow morning.

PN962

MS McKENZIE: I have another matter before Commissioner Larkin, Commissioner.

PN963

MS CHARLSON: Commissioner, I also have another matter tomorrow morning and will not be available, in Wollongong.

PN964

THE COMMISSIONER: In Wollongong. Well what is your earliest availability?

PN965

MS McKENZIE: Thursday. Mine is an all day matter.

PN966

THE COMMISSIONER: Is it?

PN967

MS McKENZIE: Well it may not go all day, but I think it is actually listed to commence at 10 or 11. It may not go beyond a half day, but I do not know that. It is an AWU matter and I am not sure how long it is actually going to go for.

PN968

MR NEILSON: I am staying out of it, Commissioner.

PN969

THE COMMISSIONER: Well I am not available Thursday. I am totally committed, I have already had to call on the assistance of some colleagues. Friday is clear.

PN970

MS CHARLSON: Commissioner, Friday I am in Newcastle. I could possibly get someone to go to Newcastle instead.

PN971

MS McKENZIE: I can do Friday.

PN972

THE COMMISSIONER: Okay. Well Friday.

PN973

MS CHARLSON: Commissioner, if I could request it be Friday morning rather than afternoon in the hope that I can get to Newcastle by 3 o'clock.

PN974

THE COMMISSIONER: Yes.

PN975

MS McKENZIE: I am happy to start as early as suits the Commission if that is a help.

PN976

THE COMMISSIONER: 8.30?

PN977

MS CHARLSON: That would be great thank you, Commissioner.

PN978

THE COMMISSIONER: All right. We will cancel tomorrow's listing and relist it for 8.30 Friday.

PN979

MS McKENZIE: In those circumstances, Commissioner, I am just wondering whether it would not be appropriate to - and I note the Commission's observations before about your interim position in relation to interim orders. My instructions are that the company is very concerned, however, that the industrial action is continuing, and concerned that we now appear to be getting into a debate about whether or not the concerns are reasonable. And there is really - in that sense there is no real issue taken by the company that the issue of the dust is a proper one for employees to be concerned about and is one that needs to be dealt with. The company's position has been throughout that there is a process whereby safety concerns, issues, disputes, if a matter becomes a dispute can be dealt with and it is the company's concern that that process be followed before industrial action is taken, not as a result of or in consequence of industrial action being taken.

PN980

And we have heard evidence from Mr Dubois that WorkCover was contacted on Thursday, 3 March, that is after the stop work meeting was called. The union is perfectly entitled and, in fact, the enterprise agreement provides for WorkCover inspectors to be requested to assist to resolve safety issues, and the enterprise agreement in fact provides that where there is a dispute WorkCover may even be asked to determine the matter and both parties would accept that. But the evidence already before the Commission is that WorkCover was not even invited in until after industrial action had been taken.

PN981

The evidence is that no prohibition notice was issued, not even improvement notices were issued, but Mr Dubois made some recommendations, suggestions, directions, whatever for there to be further consultation between the Safety Committee and the employees. And there is no resistance to that course and that course will no doubt follow, but what the company is faced with is that whilst we are now going through the process whereby the concerns about the dust are dealt with, the employees have unilaterally imposed restrictions and limitations on their normal working arrangements, and they have done so without the agreement of the company in circumstances where the company clearly requires them to work their normal rostered arrangements.

PN982

There is no evidence from WorkCover that the wearing of dust masks underground presents an imminent risk to the health and safety of employees. His evidence clearly is that it is undesirable, unpleasant, uncomfortable, but his concerns at no time got close to the level of there being an imminent risk to the health and safety of the employees. In fact he acknowledged that in the control of risks the wearing of personal protective equipment is a last resort, but it is a legitimate means by which risk can be controlled. And the fact that WorkCover did not issue any corrective directions to the company is in our submission fairly compelling evidence that there is no imminent risk to the health and safety of the employees.

PN983

And even without that evidence, the uncontested evidence is that employees are continuing to work ordinary time every day. Now how can there be seriously suggested that there is an imminent risk to the health and safety of employees which would justify the unilateral imposition of restrictions when the same employees are working eight hours ordinary time. There was no evidence from WorkCover that there is some magical elevation of risk between eight hours and anything more than eight hours other than to the degree of comfort or inconvenience, and the Company would probably, if asked, not disagree that wearing dust masks is not the optimal solution. But it is the only solution and it is a solution that is part of a comprehensive system of controls and other measures in accordance with the regulation which Mr Dubois referred to. Then a requirement that people wear dust masks is a requirement that the company imposes in order to meet its statutory obligations to ensure the safety and health of employees.

PN984

There is no evidence that has been brought forward that suggests that the wearing of the dust masks does not ensure the safety and health of the employees. So there is no evidence that the requirement of the company for employees to work their normal rostered arrangements and wear dust masks when they are underground breaches the company's statutory obligations or imposes in any way an imminent risk to health and safety. Now if we are in to the procedure in the enterprise agreement whereby safety disputes can be resolved, and there is a procedure, and that can involve proceedings in the Commission or it can involve WorkCover conducting some umpire type role, if we are into that procedure then the company is perfectly happy to participate in that procedure, that is what it is for, but it objects to doing so in circumstances where it is everyday experiencing industrial action which is having an adverse effect on production.

PN985

And if the process is to continue and we are going to get into more detailed evidence about the reasonableness of the requirements, then in our submission it is unfair to do that, for the company to be participating in that process while at the same time it is experiencing industrial action from which it cannot recover. Lost production is lost production. And in the absence of any evidence that the company's requirement that people work their normal rostered shifts is not a reasonable requirement having regard to the provisions of the EBA, in particular the requirement in the EBA for people to work reasonable overtime as directed, the evidence of Mr Jukes that the roster patterns have been worked for at least, I think 18 months, this is the pattern of work.

PN986

In the absence of any evidence that that requirement poses an imminent risk to the health and safety then the company, in our submission, is entitled to at least interim relief pending a more full hearing or working out of the procedures required for under the enterprise agreement, because to do otherwise would be effectively to endorse or legitimise the industrial action. The message it would send to the employees is that that is how you get immediate response to safety issues, you take industrial action and then the whole thing gets sorted out. And that is the very behaviour which the company has been over some months now trying to change.

PN987

And it is the fact that when an order was made by this Commission in December there was compliance, there was a period of time when issues were dealt with in accordance with the EBA. When the order reached its expiry there was within a relatively short period of time some further industrial action unrelated to safety and in a different area of the project, not these employees, but the same unions, there was industrial action.

PN988

The Commission will recall there was an agreement reached between the parties which the company believed gave it some degree of protection from further unauthorised industrial action because the primary union on site, the organiser gave an undertaking that the union would comply with the dispute settlement procedures and the safety procedures in the EBA. And that undertaking has been breached and the company has as a result suffered further unprotected industrial action. If the unions now say that the action is justified because it represents an imminent risk to health and safety and it is therefore not industrial action within the meaning of the Act, then on the basis of the evidence that has been heard to date, that argument must fail. There is no evidence that comes close to establishing that there is any risk to health and safety let alone imminent risk to health and safety.

PN989

And if that is the basis upon which it is now argued that a 127 order should not be granted, and that seems to be the primary - I think Ms Charlson agreed earlier - that the primary issue was whether the action was industrial action, and their argument would be that it is not because it comes within the exception in (g), well on the evidence that has already been heard today, in our submission the Commission should be satisfied now that the unions will not be able to make good that defence. And on that basis and given that we are now going over to Friday, the Commission should give, in my submission, consideration to issuing an interim order because in our submission the interim orders are directed very much to this sort of situation where there is a balance in between the obligation to deal with a 127 application practically, quickly and as practically as possible against the need for the Commission to give the parties the proper opportunity to call the evidence that they want to and to hear all of the material and having regard to the parties' availability and the Commission's availability, that is necessarily just going to take longer than is desirable.

PN990

It will be over a week, but that is just the process. But in those circumstances, given that the Commission has available to it the power to make interim orders, it is difficult to see what prejudice can be suffered by an order being made on an interim basis given the evidence that has already fallen before the Commission to date. So we repress an application for an interim order pending the final determination of the issues that have emerged in the course of the hearing so far.

PN991

THE COMMISSIONER: Thank you Ms McKenzie. Ms Charlson?

PN992

MS CHARLSON: Commissioner, naturally we oppose that application in the strongest possible terms. In Ms McKenzie's absence yesterday there was some examination of clause 22.2 of the EBA which is a clause relating to ordinary time and I will just read some of that aloud if I may to refresh all of our memories. The clause reads:

PN993

The ordinary hours of work shall be 38 hours per week, eight hours per day to be worked Monday to Friday between the hours of 6.00 am and 6.00 pm (5.00 am by agreement during daylight savings) with no more than ten hours in any one shift. Effective from the first full pay period on or after 1 March 2004 the ordinary hours of work shall be 36 per week, eight hours per day to be worked Monday to Friday between the hours of 6.00 am and 6.00 pm (5.00 am by agreement during daylight savings) with no more than ten hours in any one shift.

PN994

And the paragraph does continue on. Commissioner, we would submit that what the company is essentially asking the Commission to do is to do its bidding and to enforce an illegal work arrangement upon employees against their will and at risk to their health and safety. We would object most strongly to the application that has been made on that ground.

PN995

THE COMMISSIONER: How was it an illegal work arrangement?

PN996

MS CHARLSON: Well perhaps illegal is too strong a word, Commissioner. Commissioner, I am using it in its rhetorical meaning rather than perhaps its technical meaning, but certainly an arrangement not permitted under the enterprise bargaining agreement.

PN997

THE COMMISSIONER: This matter was canvassed in submissions on the first day of hearing on transcript which is available.

PN998

MS CHARLSON: Yes.

PN999

THE COMMISSIONER: And the examination of Mr Duchestai went to part of the provisions of the enterprise agreement. It did not go to other parts which were discussed on the first day of hearing, but did not go to the part relating to requirement to work a reasonable amount of overtime.

PN1000

MS CHARLSON: Yes.

PN1001

THE COMMISSIONER: And I am just saying it is not as simple as what you are suggesting.

PN1002

MS CHARLSON: No, obviously that is in fairly broad terms. I mean in respect of the requirement to work reasonable overtime which is a general requirement imposed upon employees we would say that requiring an employee to wear a mask in excess of eight hours is clearly not reasonable in these circumstances. Again, the issue of whether there is industrial action taking place has clearing been put before you. We strongly deny that that is the case. We say that employees are acting to decrease the imminent risk that is before them in relation to their health and safety, but they are being asked to work in an environment which is dangerous because of the very high levels of quartz silica dust which is present. And that dust is a serious matter, it can lead to diseases similar to asbestosis which are potentially fatal and have led to a number of deaths, as the Commission heard yesterday, due directly to silicosis. Commissioner, we would say the balance of convenience does not in the least favour the applicant in this regard.

PN1003

The issue of health and safety of the workers we would say is a considerably more important matter than any potential loss suffered by the company and we have not at all conceded that the company is in fact suffering a loss due to the shifts. Employees are turning up for work, they are working their eight hour shift, they are not working in excess of that underground wearing masks, but we are saying that it is unreasonable to require them to do so in any event. Thank you Commissioner. That is all, thank you.

PN1004

MS McKENZIE: Sorry, perhaps I should have done this early, but just that last submission prompts me to hand up a table which has been prepared by the Project Manager and he is here if necessary which identifies or demonstrates the weekly total production time both for last weekend and for this weekend I think it will demonstrate fairly tellingly. This is only in relation to the TBMs, this weekly total production time, but it measures actual productive time. The target is 37 per cent, you can see for 28 February production was up at 59.8, on 1 March it was down to 41.3. The horizontal line is what the target is and you can see on 2 March down to 26.4, 3 March down to 17.7 and this is as the restrictions, limitations have taken effect. On Friday down to 14.2, and I am instructed that the figure for yesterday, 7 March is in the order of 17 per cent although the chart has not been updated.

PN1005

So on the face of it and the author of the report and the source material that was used to prepare this can be explained if necessary. The chart on the second page on the top is measuring the actual distance tunnelled and that is not simply determined by productivity, that is effected by other geological - so it is not always external factors, but even taking that into account the correlation between the drop in the actual distance tunnelled is very similar and mirrors the drop in production time which is shown on the first chart. So on the basis of this the company would submit that it is clearly suffering significant loss of production as a result of the limitations that have been on going limitations imposed on the performance of ordinary work.

PN1006

Just in relation to the submission on the enterprise agreement, clearly the company's application is premised on a submission that the rosters which people have been required to work for some 18 months are rosters which are permitted under the certified agreement and given the number of times the parties have been before the Commission on various matters it would be extraordinary for the CFMEU and the other unions to have not taken the point in the past if they genuinely thought that the rosters which have been worked on this site were not permitted by the certified agreement. And they are rostered shifts, not a question of the company rostering ordinary time and then on a daily basis inviting volunteers for overtime. Mr Jukes' evidence is clearly that the rosters have been set and the same rosters worked for some period of over twelve months.

PN1007

And clearly our application is premised on a view that they are permitted under the agreement and the provision relied upon I think by the unions last week was the ordinary time clause, but that is of course only talking about ordinary time, the limits on the working of ordinary time and the company does not roster people ordinary time of more than ten hours. In fact they only roster ordinary time of eight hours and the remainder is paid as overtime. And that is the long standing practice at this site which has been I think - this was raised on Thursday too - the subject of the settings and the Commission going back fourteen or fifteen months.

PN1008

THE COMMISSIONER: Thank you.

PN1009

MS CHARLSON: Commissioner, this is the first time we have seen this document. The document does not give any indication of the factors that may have caused the alleged reduction in productive time. We would ask that we get a chance to consider this document so that we might be able to look at what factors might be causing any decrease in productive time if in fact that is what is taking place. Just a short adjournment possibly Commissioner so that we can just have a discussion about this document and what is taking place at the moment at the site so we are able to respond to that submission. The other submission I would like to make to you Commissioner is that the ordinary time clause does not refer to ordinary hours, it says, et cetera:

PN1010

With no more than 10 hours in any one shift.

PN1011

So we would submit that is eight hours ordinary time with no more than ten hours altogether in any one shift is a possible interpretation of that clause and quite likely the right interpretation of that clause. The fact that this has not been brought to our attention before and that we have not raised this matter before the Commission before I think is not a factor in how the EBA is correctly interpreted. But as I say, Commissioner, we would like a short adjournment of perhaps five or ten minutes to consider this document. And I do apologise and perhaps if there are any other documents that will be put before us today that we would need to consider it might be convenient for us to have those now so that we can do that without breaking again.

PN1012

THE COMMISSIONER: Is there anything further, Ms McKenzie?

PN1013

MS McKENZIE: I can give the unions, if it helps them, the shift reports which I think - well I think they are attached to Mr Jukes - sorry, I think the shift reports which are attached to Mr Jukes' statement, I think provide the basis for that.

PN1014

THE COMMISSIONER: The supplementary statement?

PN1015

MS McKENZIE: Yes, both statements. I think they had shift reports for both. So I do not think - there was no other documents that I was going to provide.

PN1016

THE COMMISSIONER: I will adjourn until 4.55 pm.

<SHORT ADJOURNMENT [4.45PM]
<RESUMED [4.57PM]

PN1017

THE COMMISSIONER: Ms Charlson?

PN1018

MS CHARLSON: Commissioner, I have been able to obtain some instructions and the information I have got to give to you is a little bit technical so I will try and summarise it, but I think the most convenient way for it to be presented to you might be through one of the employees who is able to explain the things that I am going to tell you in more detail. What I am told is that the main factor which determines how fast tunnelling can take place is in fact the condition of the ground. At the moment, apparently, the ground condition is quite difficult. What is required in relation to tunnelling through that kind of ground is to insert five bolts and up to three sheets of mesh. I understand that in the last few weeks there has been exceptionally soft ground that has been tunnelled through and that it has been in such good condition that they were able to reach within four metres of the world record for speed of tunnelling because of the condition of that ground. So I understand that that is the main factor that affects speed of tunnelling.

PN1019

I am also told, Commissioner, that at best 16 hours a day of tunnelling can take place. The remaining time generally is maintenance and setting up the machines. The fact that what the company is calling work bans is taking place is not affecting the tunnelling time. It is still possible for sixteen hours per day, up to sixteen, sixteen is the maximum per day of tunnelling to take place. The average apparently is between eleven and sixteen, but the amount of tunnelling time is the same. Maintenance can still take place without the people present and tunnelling can take place over the same amount of time. I am also told that one of the TBM machines is currently not being used because the company does not wish to use that at the present time, it is not available for use. There is one other thing that I was asked to mention, Commissioner, and that is that the persons working eight hour shifts are making themselves available to work above ground for the remaining three hours and they are being sent home by management, they are not being required to do that.

PN1020

I am further told that one individual who is a shift boss said that he will be happy to work eleven hours below ground if he was given an undertaking by the company that it was safe for him to do so. They refused to give him that undertaking therefore he has only worked the eight hour shift. As I say, I have got one of the employees here, a Mr William Fry, who is able to give you firsthand information about those matters if you would like him to go into the box.

PN1021

THE COMMISSIONER: I think your overview was sufficient.

PN1022

MS CHARLSON: Thank you Commissioner.

PN1023

THE COMMISSIONER: Anything in response to that submission?

PN1024

MS McKENZIE: I think you will have to go into evidence about all of that. On my instructions the drop in production as evidenced by this is if not solely then largely caused by the reduction in employees being available to work their normal rostered shifts.

PN1025

THE COMMISSIONER: All right, thank you. I am going to give some consideration to the request or the application for interim orders overnight. I will issue a decision tomorrow and I will adjourn the matter generally until 8.30 Friday next in Sydney. Thank you.

<ADJOURNED UNTIL FRIDAY, 11 MARCH 2005 [5.01PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M6 PICKFORD RHYDER CONSULTING REPORT DATED 10/2/02005 PN631
EXHIBIT #M7 PICKFORD RHYDER CONSULTING REPORT DATED 18/2/2005 PN631
EXHIBIT #M8 SUPPLEMENTARY STATEMENT OF MR JUKES PN638
RODNEY DUBOIS, SWORN PN709
EXAMINATION-IN-CHIEF BY MS CHARLSON PN711
CROSS-EXAMINATION BY MS MCKENZIE PN838
EXHIBIT #C4 LETTER FROM STEVE DIXON TO WORKCOVER PN842
RE-EXAMINATION BY MS CHARLSON PN924
THE WITNESS WITHDREW PN958