C2005/2342, Transcript of Proceedings [2005] AIRCTrans 720 (22 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10885

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 - Hochtieff Epping to Chatswood Underground Rail Link CFMEU, AMWU Construction Enterprise Agreement 2003 - 2006

SYDNEY

8.39AM, FRIDAY, 11 MARCH 2005

Continued from 8/3/2005

PN629

THE COMMISSIONER: I think, Ms McKenzie, you have a witness.

PN630

MS McKENZIE: I think it is still me, Commissioner. We have two further witnesses to call this morning, Mr Joseph Brennan and Mr Riku Taurianinen.
Mr Tauriainen has prepared an affidavit. Mr Brennan we don't have an affidavit and he will give his evidence orally. I am going to call Mr Brennan first but I am happy to provide the unions in the meantime with a copy of Mr Tauriainen's affidavit just so they have that. His evidence, just so I can explain it, only goes to two things and they are both matters that arose out of cross-examination of earlier witnesses, or issues that have come in the course of the hearing and those two matters are firstly, there was a document which was put to Mr Jukes which was a notice which was put out to employees and Mr Jukes in cross-examination said he wasn't the author of that document and Mr Tauriainen was.

PN631

So he will give evidence that he is the author and if there is any cross-examination about that he is the appropriate person to be examined. Secondly, I handed up on the last occasion the two page summary of the production report that I handed up in support of the submission about the lost production which the company had suffered as a result of the action and I think Ms Charlson in her submissions contested that the drop in production was caused by the industrial action and that issue was in fact the third term of the Commissioner's decision. So it seemed appropriate to call Mr Tauriainen so that he could give that evidence under oath and be cross-examined it.

PN632

So they're the only two matters that his evidence goes to and there are some attachments to his affidavit which are the production shift reports that he will be able to explain is the basis upon which he prepared that summary. So perhaps I can either tender Mr Tauriainen's affidavit now or wait till I call him, but in any event, I should hand over, provided the copies of the affidavit.

PN633

THE COMMISSIONER: I think if you just give a copy to the unions.

PN634

MS McKENZIE: If I can just perhaps explain that the copies that I am going are not sworn because the copies were made before he swore it this morning. I will hand up the original sworn one with the attachments. Perhaps if I hand it up now, but I will wait to mark it until Mr Tauriainen's has given his evidence.

PN635

THE COMMISSIONER: Okay, thank you.

PN636

MS McKENZIE: I now call Joseph Brennan.

PN637

MS CHARLSON: Commissioner, before we do that may I just address as few issues. The first is, even though we have been provided with this document now we would need - or we would certainly seek an adjournment to be able to consider the affidavit and the relatively lengthy annexures attached to it before
Mr Tauriainen is examined. The second issue is that I would just like to note for the record again my objection to the company changing their case, as I would put it, after the way in which they have presented their evidence, apparently wasn't to their satisfaction and they are now presenting their case in a different manner.

PN638

So I would again just object to the fact that they are now calling new witnesses, having said they would only call the one witness, after that witness did not perform, shall we say, to their satisfaction.

PN639

MS McKENZIE: I am sorry, I just object to that comment.

PN640

THE COMMISSIONER: I note your objection but I think the company is entitled to respond to the submissions that were made on the last day of hearing in regards to - - -

PN641

MS CHARLSON: Certainly, Commissioner. My objection is mainly in relation to Mr Brennan being called to address issues that, as we discussed on the last occasion, were well and truly put before the company, before the company elected to merely call the one witness to respond to those issues. But we have already discussed the issues and I just want my objection noted for the record.

PN642

THE COMMISSIONER: All right, thank you.

PN643

MS CHARLSON: There's a second issue that I would like to address, Commissioner, before we move into taking evidence and that's a request made by the union yesterday to permit some key personnel, safety representatives, time off work in order that they could attend today's proceedings. I have got a letter to hand up in relation to that. Commissioner, I am instructed that the company's response to this letter is to refuse reasonable request to allow these people time off to work attend and to hand pick two individuals who they would permit time off to attend. So we would like to make our objection to that course of event and also request that the Commission directs the company in the event of any future proceedings to allow these individuals to attend, to be given time off work to attend the proceedings.

PN644

Commissioner, I do note that it's a project worth in excess of a billion dollars. The company has all the resources they need to call upon. We have merely asked for access to our safety representatives, to have them here, to be involved in the proceedings, to advise and instruct us and if necessary to give evidence and that, we would say, very reasonable request has been denied.

PN645

THE COMMISSIONER: All right, thank you. Ms McKenzie.

PN646

MS McKENZIE: The request was that 15 employees be given time off with pay, with pay to attend the proceedings. Under the EBA there is certainly an entitlement for delegates to attend Commission proceedings and there's no question about that and I am instructed that nine of these employees are union delegates. Six are safety committee representatives. There is an issue about the entitlement of pay to anybody attends arising out of two respects. One, under the provision in the EBA which entitles delegates to have time off there is an express exclusion to payment in circumstances where industrial action has been taken and that arises directly from the provisions of section 187AA in any event of the Act and the company has drawn that provision to the attention of the union, so that concerns the issue of payment.

PN647

What is being suggested is on the fourth day of proceedings in relation to the company's application for a 127 order it is necessary for the union to have 15 employees attend the Commission proceedings to be involved, to participate, to instruct and possibly to give evidence. Now, I asked Ms Charlson just before the Commission resumed what evidence the unions intended to call in relation to the matter so that we could properly get some estimate of time and she has been very diligent in reminding the Commission that we shouldn't be allowed to change our case or expand our evidence at all.

PN648

Her answer to me was I don't know, at least two but maybe more. So we are facing the prospect that we will have a gallery of employees who may be called upon to give evidence in the course of today's proceedings and on that speculative basis the company was asked to just generally release them all from work on pay so that they could attend the proceedings and the company's position is it is already suffering significant production losses as a result of the ongoing industrial action. In the circumstances it was not prepared to release these employees but it offered to release I think it was the chairman of the safety committee, or two members of the safety committee, which in the company's view seemed a reasonable enough compromise given that there was no reason specified as to why these particular employees were required to be released.

PN649

Ms Charlson says the company has hand picked people. Well, no explanation was offered as to why these 15 people who were necessary to attend the proceedings, although as I said, we understand that nine of them delegates. So in the circumstances where we are in a sense running against the clock, the Commission does have to deal with this matter quickly. The Commission has refused applications for interim orders and has expressed the view that it's important to have all of the evidence out. This is the fourth day on which we have now had to conduct the proceedings. Ms Charlson, as I recall from the last occasion, has a commitment which if it's at all possible she would like the need to leave at three.

PN650

So we are trying to finish the proceedings today in any event and balancing the need to complete the case with this request to have a whole army of people now attend, possibly to give evidence and cause alarm to the company. I mean it didn't seem unreasonable in those circumstances to say two members of the safety committee could be released.

PN651

THE COMMISSIONER: So are those two here?

PN652

MS McKENZIE: I don't know. That information was communicated to the unions last night and I don't know, Commissioner.

PN653

MS CHARLSON: Commissioner, if I Might just respond to that briefly. The first issue is that I have made alternative arrangements for this afternoon so I am able to stay as long as the Commission is. I would have had to get to Newcastle by 3 o'clock and obviously that was unlikely. In relation to the submissions that have just been made, the letter does not request at any point that the employees be paid their attendance here. It merely requests that they be released in order to attend. Obviously the company has to give them their power to refuse them time off work so they have been unable to attend.

PN654

I am also instructed that a number of these employees have made repeated verbal requests to their supervisors to be able to attend throughout the proceedings. Those requests have been denied and on this occasion some of those employees have requested that Mr Dixon explicitly write to the company and make their request a bit clearly. Mr Dixon has done that and the request has been denied. We would say that this is a small selection of people from the safety committees. As you can see, their job description is identified so it's clear that it's a cross section of people from the safety committees. We don't know how it is that the company thinks that it has the right to just choose who can come and who can't, particularly if they're not being paid to come.

PN655

I am also instructed that some people have been coming essentially during their sleeping time, but they have been working their ordinary shifts and coming during the time they would ordinarily sleep. So people have been going to great lengths to get here and to participate in the Commission proceedings.

PN656

THE COMMISSIONER: All right. Look, I think I don't want to get sidetracked into this. I mean there are arguments for and against. I think trying to have a cross section of 15 in addition to the representation that is already here is rather large. Not everybody can participate in such a proceedings and there is the need to have this matter dealt with as quickly as possible. If there are two - well, the chairman I think of the safety committee would be a key person to be here, but nobody seems to know if he is here.

PN657

MS CHARLSON: Commissioner, I am told he is not here.

PN658

THE COMMISSIONER: He is not here, okay. Well, I think the best thing we do is get on with it. Have you determined the number of witnesses you are going to call today?

PN659

MS CHARLSON: Commissioner, we are going to call at least two witnesses but as Ms McKenzie told you, depending on what evidence the applicant puts forward will determine whether we have to call other witnesses in addition. I mean for example, yesterday we were prepared to call Mr Fryer to address a new issue that came up. Again we will be prepared to put on evidence about other matters if we need to in response.

PN660

THE COMMISSIONER: All right, thank you.

PN661

MS McKENZIE: I call Mr Brennan.

<JOSEPH BRENNAN, AFFIRMED [8.52AM]
<EXAMINATION-IN-CHIEF BY MS MCKENZIE

PN662

MS McKENZIE: Is this your name, Joseph Brennan?---That's correct.

PN663

And are you the Project Safety Manager for Thiess Hochtieff Joint Venture Parramatta to Lane Cove project?---That's correct.

PN664

Could you explain to the Commission what your responsibilities as the project safety manager involve?---Well, they're varied but basically it's the management of safety on the site which includes the management of the occupational health and safety system, the management which is the company safety system, the two safety system, it's the management of associated aspects of safety including the legislation, resources, training, information, education. It's basically a position where you manage a lot of safety processes for those people who are in control of the workplace, which management, engineers, et cetera, so they in turn can provide a safe workplace for employees generally.

PN665

Where does the ultimate responsibility for safety on the job lie then?---It lies with the employer. It lies with management.

PN666

And what is your primary role in assisting management with that?---It's to provide management with the information, the resources, the training, education that they need to carry out their functions in accordance with the company standards, with the legislative standards and its regulations.

PN667

And what experience do you have in that role?---For OH & S I have 22 years experience, coming up to 23. I have worked in all areas of OH & S in varied disciplines, there's civil, building, marine, tunnelling obviously, heavy engineering. I have worked in Australian and South-East Asia.

PN668

What experience have you had in managing safety and underground tunnelling other than the Thiess Hochtieff Joint Venture project?---Previous to this job I worked for Alstrom Australia which did mechanical electrical fit-out for the M5 East Project, which was a Baulderstone Hornibrook's project. Before that I worked on the eastern distributor where I was the project safety manager for Leightons. Prior to that I would worked with Candac who sunk the tunnel sections for the Sydney Harbour. I have also worked for Candac on a small tunnel in Victoria under a railway line.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN669

Yes, thank you. What are the usual, if I can put it that way, the usual safety hazards involved in tunnelling projects?---Well, there's a list of about say 10 principal ones. Obviously in relation to this event it's dust, manual handling, plant and equipment. You would have noise of course. You can get workplace conditions. Electrical would be a high one as well. So you have got a hierarchy of a lot of variety of risk but they would be the hierarchy of risk that you would pay most attention to one would suggest.

PN670

You mentioned dust as one of them. Are there particular hazards related to dust arising from tunnelling in the Sydney region?---Yes, very much so. I mean the Sydney region is in the Sydney basins full of sandstone and as soon as you start up milling, grinding, cutting, tunnelling in Sydney you release crystalline silica which is a health hazard if not properly controlled.

PN671

Can you explain, Mr Brennan, generally what you understand to be the legal or legislative regime regulating health and safety in New South Wales, in other words, the regime under which THJV has to operate?---Well, primarily the main legislation is the Occupational Health and Safety Act 2000 and its regulation which is 2001, which is also supported or calls up various codes of practice of Australian standards and in this regard calls up a NOHSC Standard for atmospheric contaminants. So that's principally the regime that we work under and also outside of that there is industry practices or standards if you like that are also taken into account.

PN672

What is the nature of the obligation that is imposed on an employer by the Occupational Health and Safety Act?---Well, it's very onerous, especially in New South Wales. It includes the work that an employer must ensure the health and safety of the persons at the place of work. There's principally about four or five of them in the Act under general duties and that is one, must ensure safety, health and welfare, safe place of work, must provide safe systems of work, which is the sort of form of risk analysis and the regulation goes on to talk about risk analysis. It talks about providing information in structure and training and supervision is necessary to ensure health and safety.

PN673

You mentioned the regulation, can you explain what regulation you are referring?
---I am referring to the OH & S Regulation 2001. It's called up under the OH & S Act 2000.

PN674

And what does that regulation deal with?---That's a sort of consolidated regulation that deals with many aspects of OH & S, so the WorkCover Consolidated as regulations a number of years ago. It talks about issues obviously in this one, atmospheric contaminants. That talks about a lot of other issues as well, scaffolding, excavation work, demolition work, licensing requirements. There's a whole variety of regulations within that particular - - -

**** JOSEPH BRENNAN XN MS MCKENZIE
PN675

In your opinion as a safety manager how does THJV generally - when I say how, what approach does it generally take in ensuring the health and safety of its employees?---Well, that again is a major question and the range of things we must do to ensure health and safety of employees is quite vast. For one person, I mean for me I manage a whole range of process. That's basically what I do and then to - I mean we look at what's called class 1 risk which is category 1 risk. We deem class 1 risk as those things that will cause people a fatality, quadriplegia, paraplegia. We aim to ensure that those risks are eliminated in the workplace, as one thing we do not want is a fatality on our job and nor do we want anybody in a wheelchair. So primarily our focus in risk management area is for class 1 risk and that can be associated with many forms of production because they do generate risk as soon as you carry out any form of production. So principally it is to get across to our managers that that is our number one aim for all compliance. And then we worked out for the number 2, which is for clause 2 risk, we deem that if you are exposed to an uncontrolled class 2 risk, by that I mean we do not have the safety controls in place, and the same with class 1, that means you could suffer things like broken bones, fractures, contusions, burns, be off work for something up to eight weeks. Then we have class 3 issues which is things that if you were subject to uncontrolled risk you would be a first aid treatment. So the hierarchy of controls also takes us to the classes of risk and we associate with those with various production - - -

PN676

Sorry. What action can the company take in circumstances where a risk cannot be entirely eliminated?---The hierarchy controls allows you from - there is five major controls. The first one is always elimination. That's to eliminate the process entirely. It is not possible to eliminate the process entirely as far as silica is concerned because indeed we are tunnelling and we are tunnelling in Sydney sandstone and as soon as we do that we release silica. So it's not possible to eliminate that process, otherwise we wouldn't be building a railway. So we need to look at other things besides engineering controls. So the first thing we moved was design. We looked at all the designs, the ventilations, the designs of machines that we use and we worked our way through that hierarchy of controls, which is design, isolation, mitigation, administrative controls and currently we have strengthened that whole thing across the board with personal protective equipment, ie. dust masks.

PN677

THE COMMISSIONER: Excuse me, Ms McKenzie. There's a mobile phone or phones on in the room which is interfering with the computer equipment of the monitor. Could I ask that people turn them off, even if they are on silent?

**** JOSEPH BRENNAN XN MS MCKENZIE
PN678

MS McKENZIE: I would be guilty of that.

PN679

Mr Brennan, you have referred to this term hierarchy of controls on a number of occasions?---Yes.

PN680

Is that concept something that is reflected in the legislation?---It's reflected in the regulations, yes. Yes, it's a meaning of risk. It's a standard industry practice, the hierarchy of controls. It's very promoted by a lot of industry bodies, including WorkCover and something we have worked to for many years.

PN681

Are all levels in the hierarchy of controls available to employers?---Yes, they are.

PN682

And how is the assessment made as to the appropriate level of control?---Well, for example, with the tunnel boring machines there was risk assessments done prior to the machine even arriving in Australia. I remember in September 2003 I was called to Thiess's office to attend a meeting with the WorkCover Authority, Thiess and some experts from Hochtieff in relation to doing a risk assessment on a TBM where a whole range, a whole day was spent looking through the various controls of the TBM, operational controls, how it actually operated and what risk associated with it, which included I recall was the issue of dust. And there was a lot of risk assessments done. I think we conducted close to 1000 risk assessments on the project to date. They're all electronically kept. It was important to us though in doing that that the safety department not do the risk assessments. So we spent an enormous time training employees to be able to conduct with management their own risk assessments and just on training and educational risk assessments we have trained over 500 employees on how to do risk assessments. So that's principally our form. It's to hand it back through the process of consultation to employees with management to conduct their own risk assessments, given that they know their work more so than we would, more than a safety person.

PN683

Thank you. Mr Brennan, are you familiar with the particular clauses in the 2001 regulation which deals with atmospheric contaminants?---I know that they're there. I wouldn't be able to tell you exactly what they say, but yes, I think they reference the NOHSC standard.

PN684

When you refer to the NOHSC standard what document are you referring to?
---I'm referring to the standard for airborne contaminants. It's been around for quite a while and was recently amended as at 1 January this year.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN685

Could the witness be a shown a copy of that document?

PN686

Is that the document you are referring to, Mr Brennan?---Yes, with the amendment attachment, yes:

PN687

Exposure standard for atmospheric contaminants in the occupation environments.

PN688

That's the one I am referring to, yes. A guidance note and exposure standard.

PN689

I am sorry, Mr Brennan?---A guidance notice and exposure standard, correct.

PN690

I think this document has been provided to the unions but I don't think it's been tendered. May I tender a copy of the document?

PN691

THE COMMISSIONER: Yes.

PN692

MS McKENZIE: Mr Brennan, you have said - I am sorry.

EXHIBIT #M9 EXPOSURE STANDARD FOR CONTAMINANTS IN THE OCCUPATION ENVIRONMENTS

PN693

MS McKENZIE: Thank you, Commissioner.

PN694

Mr Brennan, you referred to the document as a NOHSC standard?---Yes.

PN695

Is that the same thing as an Australian standard?---No, it's not. No.

PN696

Can you explain the difference?---This is a standard produced by the National Occupational Health and Safety Commission which is the safety division if you like of the Federal Government.

PN697

Yes?---They from time to time make national standards and put those out to the States for adoption, either as a guidance note or as what they deem to be a standard as opposed to a technical standard put out by the Australian standards. Indeed there is an Australian standard that is called up under this one which is the Australian standard for the conducting if you like of the atmospheric testing, which is a very detailed document, scientific document how you do testing for dust. But this is basically as it says, a guidance note in the standard for atmospheric contaminants.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN698

You referred I think in your earlier evidence to a change in the standards?---Yes.

PN699

Can you explain what the changes are that you are referring to?---Well, the changes I am referring to is there were two changes that were put out by NOHSC. The first was the standard for silica change from point 2 to point 1 to value of HAR also the flow rates for the measurement of silica through the monitors, whether they be static or personal also changed from point 1.9 to point 2.2 millilitres per second and explain that. That means the flow rates is actually through the monitoring devices, the cyclone devices actually change and they were effective as of 1 January 2005.

PN700

And what do you as a safety manager understand the significant of a standard being changed like that? What does the standard represent?---Well, a standard represents - well, nationally it represents a change in the way that we must conduct safety in any industry because it affects a lot of industries this particular standard. Although I was somewhat surprised that there wasn't an interim period of which we were allowed to, as there normally is with say a Code of Practice, you have the sort of 12 month lead-in time, but it wasn't the case with this one. But it basically meant as of 1 January 2005 we had to ensure, or aim to ensure that our atmospheric contaminants for silica met the new standard of point 1 and we set about trying to do that. It also meant though that because of the change in the flow rates through the cyclone monitor all of the other tests that we had done were irrelevant because it was a different flow rate through those. So we didn't really have a good base either to look back on all past monitoring which we had done by new environment because the flow rates are different. So there's a technical reason why. You would have to have an expert exactly, but that's what I'm informed.

PN701

And when did you first become aware that the standard has changed?---We have, as part of a Commission hearing last year, we engaged some external experts to conduct some further monitoring and look at ventilation on the project and report back. Part of that, when we first did that Coal Services Australia did that for us. They reviewed ventilation and a few other things as per what the Commission had required at that time. They thought it was a bit of a conflict of interest that they then do the monitoring and we then set about trying to find somebody who was acceptable to both sides, both parties. To carry out the monitoring of that took a bit of a while but we then settled on Pickford and Ryder. Pickford and Ryder then came in and there was a guy called Geoff Pickford. Geoff Pickford actually sat on the committee with the University of Western Sydney who was doing the investigations and making recommendations to NOHSC and so Geoff told us probably late November/early December that the changes we were looking at were happening. We then received, or I received an official letter from NOHSC on 31 December 2004 that the changes would be taking place on 1 January 2005.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN702

And prior to 1 January 2005 what steps generally have THJV taken to monitor and control air quality underground?---It's a two layer monitoring regime. The internal layer was one where both TBMs station crews had their own monitoring devices and they go out and do it and that's just general dust, and a lot of other types of airborne contaminants and they are published as such. We also engaged a company and have since day one called New Environment. New Environment did extensive testing including some of the surface stuff, which was the batch plan, and produced reports as well. So that coupled with what we were doing, that's what we did prior to the changes.

PN703

And what steps did the company take when the standards changed on 1 January?
---Well, we had commissioned Pickford and Ryder to monitor to the old standards of point 2 and we were then informed about the changes or the coming changes, we then through it was in our interest then to get Pickford and Ryder to monitor to the new standards. Now, because of the Christmas break and everything Pickford and Ryder, plus the laboratory that analyses quartz contents of the cyclones were all closed down. We had to wait until basically they came back, but we definitely instructed Pickford and Ryder to then start monitoring to the new standard.

PN704

Could the witness be shown exhibit M6 and M7 together, please?

PN705

If you could look at M6 first, Mr Brennan?---Yes.

PN706

What standard was in place at the time Pickford and Ryder did the monitoring which was the subject of this report?---The point 1.

PN707

The point 1?---Mm.

PN708

Could you explain why the second report was obtained then, why two reports were provided?---We were guided by Pickford and Ryder. Pickford and Ryder were concerned about some of the samples from two perspectives, one was the loose dust filter - sorry, there was actually three reasons why. One was loose dust filter. Two, they thought that one of them was a little bit over the top in relation to the reading and they didn't know why, and thirdly, because they thought that it wasn't a really good wide variety of sampling that they needed to make a determination. They themselves recommended further testing be done and we engaged them straight up to do that testing and we asked them to do testing more or less from Epping straight through to Chatswood the second time around.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN709

What do you understand to be the main recommendations of the Pickford and Ryder and reports?---Well, the main recommendations were, as I see it, and Pickford and Ryder were briefed or inducted if you like into all our other controls, from engineering all the way down. Their recommendation was basically of that was for the provision of P1 dusk masks.

PN710

Can you explain what a P1 dust mask is?---Yes. It's just - well, it's a mask made by - and these masks had to be approved. They're certified safety dust masks and what they do is they control dust at the face of an employee. Why they recommended P1, we actually had moved to a P2 type dust mask for a higher protection ratio. These P2s by the way, have got a little vent on the front of the dust mask. They are Australian standards approved dust mask. We use the 3M type. We don't use the P1s. As I said, we have gone for the high level protection.

PN711

What do you understand to be the difference in the protection between the P1 and P2?---There could be a difference of - well, the P2 has got a safety factor of 10
so - - -

PN712

Can you explain what that means, I am sorry?---Well, it depends really on what the airborne contaminant readings are on the outside of the mask as compared to the protection that you get inside the mask. So for example, if I was to say that the standard of the contamination outside silica dust is point 2, then the silica dust inside the mask would be point 02. So 10 times less than what the standard - sorry, it's a safety factor of 10. So that's more or less 100 times less than what the standard actually requires. So it does depend on what's outside the mask is dependent on the protection factor that you will find inside the mask.

PN713

Do you know what the masks are made of?---Polypropylene. There's certain different types, I have noticed, of polypropylene components in it, ones that are fully developed and other ones that are woven. So the front I think of the mask is fully developed to a plastic state as other components. The strap itself is a rubber elastic band but the rest of it is all different forms of polypropylene.

PN714

Are you able to say, Mr Brennan, whether dust masks are worn by employees on the THJV project other than in the TBM area and the tunnel line that we are talking about?---Well, my advice from my safety coordinators is that is the case and right up to this morning. One of my safety coordinators is here today, Bob Thompson, made calls this morning just to double check and all the station people are wearing dust masks.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN715

Can you explain who you say are wearing the dust masks?---General workers, general construction workers, specific trades workers, et cetera, and there has been a lot of specific type trades people wearing dust masks for quite a while on the project and one example, shot-creters for example, would not do shot-creting without dust masks. It's impossible to control the dust so close to the shot-creting operation through a ventilation type system. So combined with a ventilation of a lot of other things, fresh flowing air, those type of gentlemen will wear dust masks during the whole operation, as would people jack hammering, people doing rock break out with excavators, points. So there's a lot of operations that get you very close to the source of which you cut, grind, rock hammer silica, sandstone which releases silica and you can't control it right at that point, so you have a combination of the hierarchy of controls in use and they have done that for quite a while.

PN716

Do you know what periods of time the employees that you are talking about wear the dust masks?---Well, a normal shift I think in stations and you would have to ask somebody, but I believe it's 10 hours, so if a guy is doing shot-creting over that period he would wear a dust mask for that period.

PN717

When you received the second Ryder and Pickford report what action did you then take in respect of that report?---Well, the only one we really needed to take in respect of that report was the point of introduction of the dust masks. The other one that they said or they mentioned in there was the health surveillance tests. Now, we have done health surveillance since last year. I don't know whether it's middle of the last year but it's towards the end of last year, where we got the Dust and Diseases Board Lung Bus in. We put that bus at Mag-path and also the bus at the M2 site, of which all employees, we asked all of our employees to come along and get some testing done. That concluded at the beginning of this year. We were still doing some - that didn't get picked up last year/this year, but we believe now we have got everybody. We also have strength - we have also - that is supported by employees when they join the company in that they have spirometry and X-rays and those X-rays are reviewed for silica - silicosis, sorry. But to date from my knowledge from both the health surveillance from the Dust and Diseases Board and indeed the chest X-rays, up front we don't have any known cases of silicosis of any of our employees to date. But getting back to the other recommendation which was for respiratory protection, we realised and I realised that, you know, to put employees in respiratory protection for their full shift wasn't going to be something easy and really widely accepted. So we had to ensure that we engaged the appropriate people to support us in what we needed to do. We then engaged all the safety committees. So from 21 February we brought in the TBM crews and on 22 February, the following day, we brought in all of the station safety committee crews. We had a round table discussion where we produced both of these reports. We went through and told those committees - or re-educated them if you like, or gave them information on a hierarchy of controls and what we were doing. We said we would endeavour to try our best and do whatever in that area and but in the interim period we would need everybody to be in dust masks. We opened up those meetings for general discussion and from those meetings, which was minuted and reported, we moved to a series of toolbox meetings and basically communicated the fact that we have got these results, the standards had been hard and we had no other choice but to wear dust masks.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN718

Can I just ask you in relation to the committees, how many health and safety committees operate on a site?---Well, there's one on every site with the exception of Mag-path which is combined with Maca University. So you have Epping, Mac University and Mag-path, you have Deli Road, you have Chatswood, above ground and below ground, you have the TBM crew and you have form line.

PN719

And how many people are on each committee roughly?---I am not too sure of the actual numbers but they vary from site to site.

PN720

Do you know what the composition generally is of the committees?---It's an equal - they're usually equal managers/employees, but more often than not the managers will send one or two people along and we have got more employees. But that's okay, as long as you have someone who can make a decision or refer a recommendation to a manager who has got the decision making authority.

PN721

Do you know how the employee members of the committee, how they're selected?---They should be selected and under the auspices of the Occupational Health and Safety Act which they are elected by their own employees and then an employee must be elected by employees. Management can't position one of them. Management can position their own representative on the committee.

PN722

And what training is provided to members of health and safety committees to assist them in their tasks?---Well, as they are duly formed, functioned and constituted under the auspices of the regulations, the Act, they have to receive accredited training course within reasonable time upon their election. So that could be depending on when we can get into courses, but we have engaged a fair number of trainers over the time to provide training to those committees both on the site and off the site. I don't have the numbers but I think all up it's closer to about 60 or something we have put through, given the retention rates.

PN723

Can I show you two documents. Perhaps the witness can you just identify these first. If you can just look at those, Mr Brennan and then explain what they are?
---These are - this is the minutes of the meeting that was conducted on day two with the stations - 22 February with the station safety committees.

PN724

Sorry, Mr Brennan?---You're right. These are the minutes of the meetings conducted on 22 February with the station safety committees in relation to the issue of the dust.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN725

I tender the minutes of 21 February and 22 February. One document has got
21 February and the next document is 22 February. They are separate minutes.

EXHIBIT #M10 MINUTES OF MEETING HELD 21 FEBRUARY
EXHIBIT #M11 MINUTES OF MEETING HELD 22 FEBRUARY

PN726

MS McKENZIE: Might the witness now be shown another document.

PN727

Mr Brennan, if you could just identify and explain what that document is?---That was a document that the safety office put at the request of the safety committees to just have a one page, common language if you like, for employees to read in conjunction with the Pickford and Ryder reports. So we endeavoured it best to put an extract or brief out and that's what we put out.

PN728

And so who - I am sorry?---That's what we put out which was supposed to be also used in toolbox meetings for the managers to move forward.

PN729

Was that document discussed at the safety committee meetings?---Yes, it was. They had actually asked for something like the one page flier that accurately sort of summarised the two reports given the technical detail contained in some of the reports.

PN730

I tender this document head General Information.

EXHIBIT #M12 DOCUMENT HEADED AIRBORNE DUST MONITORING RESULTS CHATSWOOD/EPPING RAIL LINE

PN731

MS McKENZIE: Mr Brennan, just so it's clear because the document is not dated, when was this document prepared?---That would have been released the day of the 22nd/23rd, I am not too sure, but very closely following on the heels of that last meeting on the 22nd. I know that they wanted to move forward and conduct a series of toolbox meetings, the safety committees and management also, so there was a lot of pressure on to get something out quickly. So I think it was either that day or the following day but I am not too sure.

PN732

Can you explain ?---Sorry, sorry. Well, down the bottom in the footer it has got 22 February, so it was actually on the day.

PN733

Yes, thank you, Mr Brennan. You referred to toolbox meetings, can you explain briefly what that is?---Toolbox meetings are a form of communication that - a very easy form of communication that managers use to communicate to workers various aspects of information on the project including safety.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN734

And do you know who generally carries out the communication to the employees?---Generally it's the manager in charge of that group of employees. Depending on the information supplied, maybe that needs to be elevated to persons above the, but generally that's who.

PN735

Might the witness be shown another document. If you could just describe that document, Mr Brennan?---That looks like toolbox meeting records on airborne dust monitoring.

PN736

And have you seen that sort of document before?---Yes, I have seen an abundance of these, yes.

PN737

I tender the toolbox meeting record.

EXHIBIT #M13 TOOLBOX MEETING RECORD

PN738

MS McKENZIE: Mr Brennan, can you just have a look at M13, at the final paragraph?---Yes.

PN739

Please find attached general information from the THJV department.

PN740

?---Yes.

PN741

Doe the reference from your understanding for the general information refer to the document which is M12?---It could do. It's not attached to this particular one but one could assume that that's what they're referring to.

PN742

Yes, thank you. Mr Brennan, what was the outcome of the two meetings of the combined health and safety committee meetings that you attended on the 21st and 22 February?---What was the outcome?

PN743

I am sorry, what was the outcome in relation to - I think you gave some evidence about needing to discuss the requirement for dust masks?---Yes.

PN744

What was the view of the committee in relation to that?---Well, the views of the committee was obviously - the views of the committees were obviously mixed. I Mean I don't think anyone actually jumped up and down and thought what a great idea it's going to be.

PN745

Yes?---We obviously realised that when we got the committees together, when we realised that we had to go down this path until we, you know, looked at other areas. So while there was a reluctance I think after the explanations put forward by both myself and Geoff Butler, the tabling of the report, I think there was a general consensus and it certainly wasn't against that we needed to move forward as best as we could in relation to the implementation of the dusk mask and trial hierarchy with the employees on the site.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN746

Yes, thank you. Mr Brennan, following the consideration by the health and safety committee meetings did you attend a meeting on 2 March where Mr Jukes was present along with a number of union delegates?---Yes, I did, yes.

PN747

What did you understand to be the purpose of that meeting?---Well, I was informed by Anthony that the unions had been contact with THJV and requested a meeting with the safety committees to discuss the issue of dust. So both Geoff Butler, which is my safety coordinator, made ourselves available for that meeting. On arriving at the M2 site we noticed there was a number of delegates and two delegates were also about to attend that meeting. We asked then was it a - we asked Anthony was it a safety meeting or was it indeed a meeting to discuss safety. We were informed it wasn't really a safety meeting as such, it was a meeting to discuss safety with a wide range of people. On that basis we attended it as a meeting just to discuss safety.

PN748

And what happened at the meeting?---Well, first up Riku explained - the project manager for the site explained what we had done since the introduction of the new standard, that what we were doing with the monitoring that he produced or provided about three/three and a half page summary of safety controls that we were looking at, reviewing and investigating and I believe that he put forward had also been a combined one of recommendations put by employees to various toolbox meetings. So that was tabled. He took us through each and every one of those individually, which was quite a number, and then the meeting opened for general discussion. Unfortunately one would say from that point the meeting deteriorated immensely and nothing more than a screaming and shouting match.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN749

Mr Brennan, were you in the Commission when Mr Dubious gave his evidence?
---Yes, I was.

PN750

Can I ask you, what contact did you have with Mr Dubious in relation to the complaints that he had received about dust tunnels, what was your dealings with him?---Well, Rod was scheduled to come to the site last Friday for another reason. He was bringing a gentleman with him to have a look at the TBM. This gentleman is on the code of practice for tunnelling. So that had been scheduled for quite a while. I rang Rod up the previous day to finalise his arrival, where to come, et cetera and what gear he needed. It was later in the afternoon, I think it was the Thursday. He informed me that he had just received a fax from the CFMEU requesting his presence on the site in relation to dust. So that's when I knew that that would be the first cab off the rank. He came on the Friday morning and indeed there was a meeting convened in the induction room of the safety office with members of various union organisations, AWU, CFMEU, a couple of committee representatives which were later joined by two of the chairman of both the stations and the TBM committees. There was Geoff Butler and obviously Rod Dubious and his offsider whose name was Richard. I can't remember his last name.

PN751

And what information did the company provide Mr Dubious with about this issue?---Well, I didn't call this meeting. It was called by the unions through to Rod. I quickly opened the meeting but then I handed it over to Rod to chair the rest of the meeting to discuss with the unions the issues at hand, or concerns that they had. We had a folder with all of the things we have been doing in ventilation hierarchy trials, et cetera. We provided Rod with the copies of the report from Pickford and Ryder. We provided Rod with a copy of the NOHSC Standard. We had other documents there. I also invited two gentlemen, two experts with the knowledge of the ventilation system, especially an engineer called Michael Hoover who I provided to Rod if he needed an explanation of our engineering controls for ventilation for control of dust. So we opened up by bringing Rod through all of the various hierarchy of controls, explaining to him what the changes meant to us and what we were doing to try and meet the standards, the regulations, et cetera, and how we actually engaged consultation through the committees, the meetings that we had, the toolboxes that were raised and the need now to move to dust masks.

PN752

Who accompanied Mr Dubious on his inspection underground?---Well, It was his offsider, Richard, but from my office it was Geoff Butler, my safety coordinator.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN753

Following the conclusion of Mr Dubious' visit what instructions or directions did he provide the company in relation to dust?---Well, before the meeting actually split up Rod requested that the committees go back to their employees, have a series of meetings with them to see if they could come up with any other recommendations in relation to controlling dust within the atmosphere and not necessarily dust masks and then make those recommendations through to management. He also added that at the moment there wasn't any dispute with the safety committees in relation to this issue but if management and the committees couldn't agree with it then the committees then Rod, if required, would come in and make a determination. That was one issue. That was at the meeting and the close of the meeting. But the other issue is on the way down to the TBM he went through Deli Road station of which he witnessed a number of employees not wearing dust masks, including the supervisor. He made mention of that to Geoff. Geoff radioed through to the project manager at that site and action was taken in relation to that manager of those employees. I also got a call and I made mention of it to the construction manager of the station in relation to those breaches. They were actioned and I called Rod back later that evening to inform him of the corrective actions we had taken in relation to those breaches.

PN754

And why did the company take those actions?---Well, we took it very seriously for the simple fact that the night before we had done - and as of the 21st and 22nd - sorry, as of the 22nd with the stations. We had definitely informed everybody by toolbox that the dust mask must be worn. Not only that, we had a supervisor standing in the middle of all of this not wearing his own dust mask, so that displayed to us a very poor level of leadership and we dealt with that very severely. The employees were brought up to the surface. There was another toolbox conducted with those employees and that was about the extent of the action taken against them. They went back to work but we took more sterner action with the particular supervisor, given that we put such a large emphasis on this issue, especially on the one where this manager is control of a workplace, it is his employees and he just failed to carry out his legislative duties.

PN755

Yes. Do you still have a copy of M7 which I think is the letter 10 February, the Pickford and Ryder report, do you have that with you?---Yes.

PN756

Can I just ask you to turn to page 10 by reference to the fax?---Yes.

PN757

At the top of that page, do you recall Mr Dubious being asked questions about reading the bottom figure, the crib room form lining reading of point 1.4?---Yes, I do.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN758

Are you able to say where that test was conducted?---Yes, according to Pickford and Ryder, although I wasn't there, they said that they would place that study monitor on the outside of the crib room.

PN759

Not on the inside of the crib room?---No. There's only been one monitor put on the inside of any crib room at the moment and that was the one conducted on Monday last on the TBM room - in the TBM crib room.

PN760

And who conducted that test?---Pickford and Ryder.

PN761

And are you able to say what the results of that test were?---Yes, or I had. I haven't got the paperwork, but what it showed there was less than point 06.

PN762

And can you explain what you understand that reading to mean?---That means it's more - or just under - just above half of the standard of point 1.

PN763

Yes?---So half of the standard in the crib room and it's less than which is important.

PN764

And this is inside the TBM crib room, is that correct?---This is inside the TBM crib room, correct. And I have that data and the certificates of analysis by the laboratory of Pickford and Ryder.

PN765

Commissioner, might we have leave perhaps to tender those at some later stage? Mr Brennan has those reports, not exactly with him, but will obtain copies and we can produce them perhaps prior to the completion of his cross-examination.

PN766

THE COMMISSIONER: That would be helpful, yes.

PN767

MS McKENZIE: Yes, sir. Yes, thank you.

PN768

MS CHARLSON: Commissioner, we do need to see these documents. I am instructed that previously the unions have been told that there is a seven day waiting period before the test results can be made available so we are questioning how it is that they can now be available within less than seven days and certainly we need to be able to see them and before we put on our evidence.

PN769

MS McKENZIE: Mr Brennan, are you able to explain how you obtained those results so quickly?---Well, we had New Environment. New Environment uses a NATA laboratory and they have to send them to South Australia. You always have a seven, actually nearly a nine day turn around with New Environment which is quite lengthy, but then you have to be NATA accredited to actually run your own laboratory. Fortunately for us Pickford and Ryder are NATA accredited, so their turn around is five to seven days. So in relation to the testing that was carried out on Monday night and the workload they have got on, they were able to really accelerate or put priority on these testings given we really pushed hard for it. Pickford and Ryder, as I said, have their own laboratory and they are NATA accredited. Normally testing companies are not NATA accredited or have their own laboratories, as New Environment was not.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN770

Yes, thank you, Mr Brennan. Mr Brennan, can I refer you to some of the evidence Mr Jukes gave in cross-examination and perhaps just for convenience if I can perhaps read it out. It's paragraph 271 of the transcript and it is a question Ms Charlson asked Mr Jukes and I will just read the question:

PN771

Mr Jukes, do you recall Mr Brennan at that meeting -

PN772

And if I can interpose there. It's referring, I think the transcript will show, to the meeting of 2 March -

Saying that only one woman had died of silicosis in the last 20 years in Australia?

PN773

And Mr Jukes answer is:

PN774

I remember a comment about something about that but I did not really take it on as a fact at the time.

PN775

Mr Brennan, you were present at the meeting on 2 March?---Yes.

PN776

What comment did you make that would be referable to that question to
Mr Jukes?---Well, the comment I think - or how it was referred to was I made the comment over the last 20 years. It was actually the comment was 10 years and yes, I did mention a woman grinding out dag bowls in a ceramic factory. That information was actually given to me verbally and it was actually communicated to all the workers in a debrief small toolbox meeting that we ran last year from a gentleman called Geoff Sharp and Geoff Sharp is the Manager of Operational Client Services for the Dust and Diseases Board and we actually asked Geoff to come out in lay terms and explain to our employees what silicosis was, what it meant, what the incident rates were, whether there was an increase, whether it was planing out or whether there was a decrease. So that happened last year. It was actually Geoff Sharp that made that comment to me in relation to there's been no new cases under the existing standards for the last 10 years.

PN777

Can I show you a document, Mr Brennan, and ask you if you can identify it and to explain what it is?---Yes. This is a document that I recently went in reviewing various reports of dust in Australia, this is one that I came across, Australian Institute of Occupational Hygienists.

PN778

And you obtained this report from your own research?---Yes, just doing our own research, yes. I mean that's correct.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN779

I tender a copy of the report.

EXHIBIT #M14 REPORT FROM AUSTRALIAN INSTITUTE OF OCCUPATIONAL HYGIENISTS

PN780

MS McKENZIE: Mr Brennan, what is the Australian Institute of Occupational Hygienists?---It is a body of people that are on a national level come together in relation to reviewing certain standards or setting, or commenting, recommending on certain standards. I believe this institution made submissions in relation to NOHSC in relation to the proposed amendments of the standard and I believe this one is probably - yes, this one is the comments that the institute made to the Australian standard for crystalline silica.

PN781

Can I ask you to turn to page 2 of the report and you will see there is some handwriting appearing against the list of people?---Yes.

PN782

Whose handwriting is that?---That's one of my safety coordinators. I had asked him to identify who these people were for my own information.

PN783

Yes, thank you. And can I ask you to go to page 8 of the report?---Yes.

PN784

And ask you the underlining and the margin comment, who has made those?---I did.

PN785

And why have you made those comments?---It was just in relation to the comments that I made from the information that I got given to me from Geoff Sharp. I mean obviously I would have liked to - I wanted to investigate that further to find the validity of that comment and in other areas, just not from Geoff Sharp. So I was looking for probably both sides of the argument if you like.

PN786

And the margin comment:

PN787

Point 2 standard was introduced in April 1996.

PN788

?---Correct.

PN789

Is that - sorry, could I interrupt you to explain what that means?---Well, the NOHSC WorkSafe introduced the point 2 standard in 1996 and it was the standard up till 1 January this year. So that was the first introduction, so you are going back close on 10 years.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN790

Just finally, Mr Brennan, can I ask you, what do you understand the phrase imminent risk to health and safety to mean?---Imminent risk, it's a term I don't use. I call it immediate but imminence has the same meaning. An imminent risk, immediate risk is an immediate or imminent danger to human life and limb.

PN791

And as a safety manager if you became aware or formed a view that there was an imminent risk to health and safety what action would you take?---I would, if it was immediate or imminent risk to danger to human life and limb I would cease work, cease that operation until the safety controls are in place. So I would isolate the area or I would take employees out of the area. There's a whole range of actions that would be taken after that cease in work.

PN792

And is that an action that you have taken in the past?---Yes, it is. Yes.

PN793

Could you give some examples of circumstances in which you have come to take that action?---Well, there's been many. If I can relay one though to a situation that we had down at Lane Cove. One that I didn't identify by the way. This was one where I was on the site but it was identified by another person. That person indeed was Dick Whitehead that had come onto the job and Dick witnessed some form workers working on the top of a deck without the use of safety harnesses. I called down from the office and Dick duly pointed it out. I then immediately left Dick and went down and ceased the works. We brought the two employees up which were from Superior Formwork. We also brought the foreman up from Superior Formwork and we also had a chat to our supervisor for that area as in to why that operation wasn't carried out safely. I then reported back to Dick on the surface of the action that was taken. So that's one incident of a cease to work. Other cease to works - I mean the things that really concern us would be working at heights without the use of safety protection, working in and around vehicles without proper protection, those type of things.

PN794

And in your option as a safety manager do the circumstances of the dust levels underground at the moment pose an imminent risk to the health and safety of employees if employees are working properly fitted dust masks?---No, they don't.

PN795

And are you able to say, Mr Brennan, what in your opinion is the significance of the duration of time that ..... in other words, is the length of a shift a factor in determining the risk of exposure?---I know of no studies that give differences in length shifts, whether it be one hour, five hours, eight hours, 12 hours. As long as and for a safety person as a myself or my coordinators, it's just a matter of these people are protected when they are working. To me the length of the shifts, if this is indeed an issue here, is more of an industrial relations issue than a safety issue. Our sole aim is to make sure that people are safe at the place of work. As I said, whether that be one hour or 11 hours, it makes no difference to us.

**** JOSEPH BRENNAN XN MS MCKENZIE
PN796

Yes, thank you. I have no further questions, Mr Brennan.

PN797

THE COMMISSIONER: Thank you. Ms Charlson.

PN798

MS CHARLSON: Commissioner, I would seek an adjournment of possibly one hour so we can consider this material and I can take instructions.

PN799

MS McKENZIE: Well, I object to that. It's simply a matter of cross-examining. He has given his evidence. We are entitled to move on. An hour adjournment is in the circumstances unusual.

PN800

THE COMMISSIONER: Very unusual.

PN801

MS CHARLSON: Commissioner, no written statement has been put to us. That's the first time we have had this material before us. There are a number of documents we need to consider. I submit that we definitely need an adjournment and I need to take instructions.

PN802

THE COMMISSIONER: Well, I won't put a time on it but I will ask my associate to check with you every 10 minutes. Thank you.

<SHORT ADJOURNMENT [9.52AM]
<RESUMED [10.50AM]

PN803

THE COMMISSIONER: Ms McKenzie.

PN804

MS McKENZIE: Commissioner, just before cross-examination starts perhaps if I can just formally deal with the tender of the report that Mr Brennan in his evidence and if I could ask the witness to be shown the document.

PN805

Now, Mr Brennan, can you explain what the document is that you have been handed?---The top document is an email from Gary Ryder from Pickford and Ryder re a summary if you like of the results of the measurements on Monday at 9 o'clock on the TBM. There are four locations, personal static and the second one is a certificate of analysis provided by Pickford and Ryder and NATA accredited.

PN806

I tender the document.

EXHIBIT #M15 EMAIL FROM GARY RYDER FROM PICKFORD AND RYDER RE SUMMARY OF RESULTS

PN807

MS McKENZIE: Thank you, Commissioner.

PN808

THE COMMISSIONER: Ms Charlson.

<CROSS-EXAMINATION BY MS CHARLSON [10.52AM]

PN809

MS CHARLSON: Thank you, Commissioner.

PN810

Mr Brennan, you said under examination-in-chief that this kind of mask is made of polypropylene, is that correct?---Correct.

PN811

We have opened the mask up and when you open the mask up and when you open the mask up you can see it's stuffed with a certain kind of material?---Correct.

PN812

I put it to you that that material is paper, is that correct?---No, it's polypropylene.

PN813

It's polypropylene?---There's a difference - - -

PN814

So there is no paper in that mask?---No, there's no paper in it.

PN815

Would you then agree that if that material gets wet it responds similar to paper?
---No, I wouldn't agree.

PN816

Would you agree that it's easily ripped?---Yes. Well, I would agree both the up and bottom flaps are easily ripped and that the filter, the inside comfort part that you just referred to is easily ripped, but the front of it is not easily ripped.

PN817

Would you agree it's easily frayed?---Easily frayed?

PN818

Yes?---In relation to what, sorry?

PN819

Well, do the component parts fray when they affected by wear or tear?---One would imagine a lot of things fray so yes, it could possibly fray.

PN820

Would you agree, Mr Brennan, that this device becomes ineffective if it's wet?
---If it's wet, well, I mean I looked at it through 3M data. We also called 3M and we extensively looked at these masks. We actually pulled them to pieces as well. They informed us that the RPA also use the P2s. They use them in surgery and they have a need for a certain protection of - - -

PN821

Mr Brennan, I don't mean to interrupt you, but I don't think you are answering the question that I have asked?---Well, I am trying to.

PN822

MS McKENZIE: Well, perhaps if he be allowed to answer the question and then you can answer then whether he has properly answered or not.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN823

MS CHARLSON: Very well?---I am sorry. The ..... do test them for especially in relation to surgery because there's a lot of blood flying around. They do not get wet and soaked as you are implying. Yes, it's possible for them to get wet but whether it impedes the mask I am not too sure. I am not the expert.

PN824

So does this mean that you won't concede then that this device is in effective if it becomes wet?---I am not saying that. I'm just saying I'm not expert. I said I don't know if impedes the mask. I imagine it would do. I imagine if it gets clogged up with dust it would do and all you would be required to do then is change the mask.

PN825

Well, I put to you, Mr Brennan, that this device does become ineffective?---Is that the same - - -

PN826

When it's wet?---Sorry, is that the same as the 3M ones that we actually use?

PN827

This is a mask that was issued by your company, Mr Brennan. It was issued to Mr Dixon only yesterday?---I don't know who issued it to Mr Dixon. All I know is when I went to the stores today - - -

PN828

TBM I am told, Mr Brennan?---Well, I went to the stores today, that's the type that we had in the stores when I went in there today. That's all I am saying, so maybe we are talking cross purposes about the type of masks.

PN829

Mr Brennan, I put it to you that this is the kind of mask that is being used today on TBM?---I have not seen that mask before. All I have seen is these masks, I am sorry.

PN830

Can I ask the witness be shown a document, please.

PN831

Mr Brennan, have you seen this document before?---No.

PN832

Can you please have a look at the face of the document and describe what the document appears to be?---It appears to be a mask and other respiratory. I don't know who the author is.

PN833

No, I am referring to the bottom of the document to see who has published this particular document?---Well, it was a www.workershealth.com.au fax.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN834

Immediately above that, Mr Brennan, what does it say?---Immediately above that, "Air purifying respirators". Is it a particular page - - -

PN835

No, I mean above the "www", at the base of the second last page what does it read there?---"Particular filter", just there? "Particular filter".

PN836

No?---The second last page, sorry. Okay. Above that it says:

PN837

Faxed Workers Health Centre, 1999.

PN838

Commissioner, can I tender this document into evidence, please?

EXHIBIT #C5 FAX FROM WORKERS HEALTH CENTRE

PN839

MS CHARLSON: Mr Brennan, what this document is a fax sheet put out by the Workers Health Centre - - -

PN840

MS McKENZIE: Well, if there's a question let's ask a question. He doesn't need to be told anything.

PN841

MS CHARLSON: There is a question. I would say it was a necessary preliminary to explain to Mr Brennan what the document is. I mean he has already identified it in part but I was just providing him with a slightly more explanation. In any case, this document is a fax sheet put out by the Workers Health Centre.

PN842

Mr Brennan, can I ask you to please go to the fifth paragraph down on the first page and read the first sentence?---

PN843

The use of respiratory protective equipment is often favoured by employers because it is generally a cheaper option -

PN844

Do you want me to keep on reading?

PN845

Yes, please?---

PN846

when compared with the cost of controlling the hazard at its source. Nevertheless - - -

PN847

No, that's sufficient, thank you. Mr Brennan, you would agree that that's a correct statement of fact, wouldn't you, that it's cheaper to provide respiratory protective equipment generally than to control a hazard at its source?---I wouldn't agree with that statement at all. It says the use of protective equipment favoured by employers but that's something that we have not done so I can't agree with that.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN848

You can't agree with that?---No, we haven't favoured personal protective equipment.

PN849

Well, can you tell me then, Mr Brennan, that it would be cheaper in fact for you to control the hazard at its source than it would be for you to provide the masks?
---Well, I don't know because I know that for the purpose of providing masks at the moment we are costed in the position of about half a million dollars to the end of this project so I don't think that's a cheap option. I think half a million dollars spent on dust masks is quite a sizeable amount of money and a huge cost impost to the project.

PN850

But you would agree, Mr Brennan, wouldn't you, that masks or any kind of dust respirators, protective equipment is a last resort?---Absolutely.

PN851

In relation to controlling hazards?---Absolutely.

PN852

Bu t you wouldn't agree that it's a cheaper option than say the cost of ventilating this project properly so that the levels of quarts silica dust in the air are lowered?
---Well, I don't agree if you say we're not ventilating the place properly. I believe we have ventilated it properly. But in relation to the ventilation, yes, there is enormous cost in ventilation compared to half a million dollars for dust masks. I would agree, yes.

PN853

Mr Brennan, can I ask you to turn to the second page of this document. Could you please read the sentence under the sub-heading disposable respirators?---The second page?

PN854

Yes, the second page?---Yes, yes. Which one did you want me to read there?

PN855

It says part A, immediately part B there is a sentence and the sub-heading disposable respirators. Would you please read that?---Yes.

PN856

Disposable respirators. They are generally paper masks which are only used for non toxic contaminants such as house dust.

PN857

Mr Brennan, you would concede that silica dust is a toxic contaminant, wouldn't you?---Correct.

PN858

In fact it's carcinogenic?---I can't agree it's carcinogenic. I have read a lot of studies that counteract that US study that you mentioned last time. So I think from what I have read the jerry is out whether it's carcinogenic but I have seen the report saying the US study report is saying it's carcinogenic, yes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN859

But nevertheless, according to the NOHSC standards that you referred to earlier, it's a hazardous substance?---Correct.

PN860

For which extra special controls are put in place?---Correct.

PN861

Mr Brennan, you noted when you were referring to that substance that there was no lead up time in relation to the new limit?---I made the comment there was no interim period. Usually there's an introductory period of 12 months with a code, standard, et cetera.

PN862

Mr Brennan, I put it to you that that's because the stuff we are talking about is extremely hazardous stuff?---Absolutely it's hazardous. People die from it, that's correct.

PN863

Such that people do indeed die from silicosis, such that there simply wasn't time to give the companies extra time to comply. It was necessary to produce that immediately in order to reduce the risk?---That's not the information - - -

PN864

MS McKENZIE: Well, what's the question there? They are submissions at the moment. Is there a particular question that it's worth asking Mr Brennan?

PN865

MS CHARLSON: Well, Commissioner, Mr Brennan commented on the fact that there was no lead-in time. I am merely asking him more questions about the fact that there was no lead-in time and asking him to analyse the statement that he made.

PN866

MS McKENZIE: I am sorry, but there is a lot of submissions being put to him as to why there was no lead-in time. I am not sure what the benefit of that is.

PN867

THE COMMISSIONER: I think we should distinguish between the question and the statement, be specific.

PN868

MS CHARLSON: Certainly, Commissioner.

PN869

Mr Brennan, are you concerned about that statement there that the disposable respirators - and you would agree, wouldn't you, that this is a disposable respirator?---Yes.

PN870

Are only suitable for non toxic contaminants, not toxic contaminants?---No, those masks, as I have mine here, are used fit for this purpose intended, which in relation to silica they are designed to protect against. My advice from 3M and the experts is that is a suitable mask for that process.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN871

So you wouldn't agree with that statement there?

PN872

MS McKENZIE: Well, I object to that. The statement says they are paper masks. Mr Brennan's evidence was that this mask is not a paper mask. There is no evidence that the mask that we are talking about are paper masks, so we have put to him the question that he doesn't agree with the statement is quite misleading and we are not talking about paper masks. If it please the Commission.

PN873

THE COMMISSIONER: Yes.

PN874

MS CHARLSON: I beg your pardon, Commissioner. In fact what the sentence says is that these are generally paper masks and this is a disposable respirator. It says the disposable respirators are only used for non toxic contaminants. They are also generally in the industry known as paper masks. Whether they are in fact made of paper or not has not been clearly established. There is differing evidence on it. But in any case, the sentence reads:

PN875

These are generally paper masks which are used for non toxic contaminants.

PN876

I am asking whether Mr Brennan agrees with that sentence?---I am sorry, I can only talk in relation to the masks I have and my data from 3M says that it's polypropylene and I have those. I have that here. It's not - they're not paper masks. We don't have paper masks on the project. I would assume if one did wear paper masks it wouldn't be fit for the purpose intended of silica.

PN877

Mr Brennan, in the meeting that you attended with WorkCover last Friday?---Yes.

PN878

Did you agree that the disposable masks of the type we have been discussing are ineffective when wet?---Are what?

PN879

Are in effective when they become wet?---No, I can't remember.

PN880

You don't recall saying that? I put it to you that you did say that?---I can't recall saying that.

PN881

You can't recall saying that. Mr Brennan, I put it to you that the average temperature where the men that we are talking about are working with the TBM?
---Yes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN882

Is in the vicinity of 31 degrees Celsius?---No. My information from Riku just as last night and from previous results that I saw from Christian Zimmer show that the temperature is 25 to 27, not 31.

PN883

Well, you would nevertheless agree that it's hot in the tunnel?---25 to 27 compared to what it is upstairs on the old hot day at 31 upstairs it's probably reasonable. I don't know, it depends on the circumstances. But no, I think that's a reasonable temperature.

PN884

And you would agree, wouldn't you, Mr Brennan, that water is used in the course of the construction work being done in those tunnels?---Absolutely.

PN885

And it's being used, for example, when people are making holes in the ceiling to wash out the holes that they have made?---I am not exactly - what process are we talking about?

PN886

We are talking about people on the front of the drill who are making drills in the ceiling. They use water, do they not, to wash out those holes?---I am not sure. I am not sure how they do it.

PN887

I put it to you that they do and that the water therefore gushes back on their face?
---I am not sure how they do that.

PN888

And these are the same people who have been instructed - - -

PN889

MS McKENZIE: Well, I am not sure what the question is. He has already said he doesn't know.

PN890

MS CHARLSON: Well, Mr Brennan, you are the tunnel expert, aren't you?
---I'm not an expert, no. I have never said I was an expert.

PN891

But you have given evidence about the number of jobs you have done in respect to tunnelling?---Correct, correct.

PN892

This is a standard procedure used in tunnels, is it not?---Well, there's a lot of different forms of rock drilling. You are talking about wet rock drilling - - -

PN893

Which is the kind that's used in this job, is it not?---No, there's various processes used on this job. I don't know which one you're talking about.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN894

Including wet rock drilling?---I'm not too sure.

PN895

Mr Brennan, is it a bolting procedure where water is used?---Is there a bolting procedure where the water is used on the TBM or - - -

PN896

With the bolting procedure is water used?---On the TBM or generally?

PN897

Or both?---I'm not too sure.

PN898

In respect of either?---I'm not too sure about the TBM. There is water used in bolting flow out holes, yes.

PN899

Mr Brennan, did you go down to the tunnels last year with Mr Dixon?---I can't remember which is - - -

PN900

Have you ever done in the tunnels with Mr Dixon?---Yes, we have met Mr Dixon on a few occasions.

PN901

Was there one occasion where you went down where bolt drilling was being performed?---I can't recall that visit, no.

PN902

Well, I put it to you that there was such an occasion and on that occasion both you and Mr Dixon got wet from the water that was being used in that procedure?---I can't remember that, no.

PN903

Mr Brennan, do you sweat when you go down to that tunnel?---It depends how long I'm down there. Yes, it's possible.

PN904

You do sometimes sweat?---Yes.

PN905

And would you say that when you sweat the mask that you were wearing, if you were wearing a mask, could become wet?---No, I - no, and if it does and it becomes heavy and breathing becomes difficult, I would change the mask.

PN906

Have you done any heavy exertion down in that tunnel, Mr Brennan?---I don't work as such in the labour sense. I do audits and investigations. I walk through and do checks and balancing.

PN907

But you concede, Mr Brennan, that if you were exerting yourself in that environment which you have said is 25 to 27 degrees?---Yes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN908

And I have said is 31 degrees?---Yes.

PN909

And humid and there is water present?---Yes.

PN910

That it is likely that you would sweat?---Possibly.

PN911

And it's likely that your mask would become wet?---I can't say. I don't know.

PN912

Well, Mr Brennan, I put it to you that if you are sweating and your face is sweating it is likely that your mask will become wet, is it not?---I don't know. I don't know, I have never experienced that myself.

PN913

Well, Mr Brennan, I put it to you that one doesn't need experience it in order to be able to make a fairly sure conclusion about whether in fact it is going to become wet if one's face is dripping with seat.

PN914

MS McKENZIE: Well, is he being asked a hypothetical or is he being asked what happened to him? He has answered a question he hasn't experienced it, is he now being asked hypothetically to make a general observation or not?

PN915

THE COMMISSIONER: I think so, yes.

PN916

MS CHARLSON: Mr Brennan, you were in the room yesterday when the WorkCover inspector was giving evidence, were you not?---That's correct.

PN917

I would like to take you to parts of that transcript. I can read it so you don't need to look at it but you can if you please?---Yes.

PN918

The first section is paragraph 728?---I don't have that.

PN919

You don't have that. Well, I will just read you the relevant sections. They are rather brief:

PN920

So how would you describe the temperature conditions in the tunnel?---It was rather room.
Rather room. How warm would you say?---Warm enough for me to have sweat running down my face.
Really? Would you describe the wet conditions?---It was moist, yes.
It was most in the sense of humidity?---Very humid there.

PN921

Mr Brennan, I put it to you that it is wet and humid and hot in the tunnel.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN922

MS McKENZIE: Well, I object to that. All the witness established is Mr Dubois gave evidence to that effect.

PN923

MS CHARLSON: Commissioner, I don't understand why that's objectionable. I am reading Mr Dubois' evidence which Mr Brennan heard and asking him to respond it.

PN924

MS McKENZIE: Well, no. He was asked whether he would concede that it was wet and humid under the tunnel and it's been based on the fact that Mr Dubois gave evidence that it was warm enough for Mr Dubois to have sweat running down his face and that Mr Dubois would describe the conditions as moist and humid.

PN925

MS CHARLSON: Commissioner, I am merely giving the witness an opportunity to respond to that statement, either to agree or disagree that those are the conditions in the tunnel as experienced by Mr Dubois. I don't see how it's remotely objectionable.

PN926

MS McKENZIE: How can Mr Brennan agree or disagree with what Mr Dubois experienced?

PN927

THE COMMISSIONER: Pretty difficult but ask your question.

PN928

MS CHARLSON: Mr Dubois - I beg your pardon.

PN929

THE COMMISSIONER: I doubt it's relevant but ask the question.

PN930

MS CHARLSON: Commissioner, I would submit it is relevant, but in any case.

PN931

Mr Brennan, do you agree that the conditions in the tunnel are warm, even hot, moist and humid?---There's variances in the tunnel. You can go to areas where it's extremely cold and it's not hot, humid. It depends on the location of the tunnel. So there's variances right throughout the tunnel.

PN932

Mr Brennan, is it the case that throughout most of the tunnel at most times it is in fact hot, humid and wet?---No, I wouldn't agree.

PN933

You wouldn't agree?---No.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN934

Mr Brennan, the masks you that you provided, these disposable masks, don't fit persons with beards, do they?---No.

PN935

What direction has the company in respect of persons with beards?---That if persons have beards then we strongly favour that those beards be tempered or shaved to suit the masks.

PN936

Mr Brennan, has a direction been made to employees with beards that they must shave their facial hair?---We put out a flier saying that, yes.

PN937

Mr Brennan, do you think that's a reasonable direction?---I certainly do.

PN938

Mr Brennan, are you going to ask your project manager, Mr Steve Burns, to shave his beard?---Absolutely.

PN939

You are. Mr Brennan, has Mr Burns agreed to shave his beard?---Yes, he has.

PN940

He has. So why is he still wearing a beard?---He hasn't gone underground. I am sure when Mr Burns go underground he will shave his beard to accommodate a mask.

PN941

And if he doesn't his employment will be terminated?---I'm sorry, I don't have that authority but I will take it on notice. But it has been recommended that all people shave their beards, that's correct.

PN942

Mr Brennan, if I can take you again to the WorkCover inspector's transcript from his examination. Could you please turn to paragraph 815.

PN943

MS McKENZIE: He doesn't have it.

PN944

MS CHARLSON: You don't have that. I'm sorry, I thought you had it?---No, no, I don't have it.

PN945

Okay, I will just read it to you. I asked Mr Dubois does the mask work if a person has a beard and he said know. I asked him:

PN946

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.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN947

Is it the case that the company intends to provide masks suitable for persons with beards?---The issue was discussed at both the 21st and the 22nd on the safety committees. The only type of mask that would suit a person with a beard is a Raycor Air Head Respirator which is a full crown respirator which has got a side body pack and both committees agreed and both said that was impractical to wear those on a full time basis and that the better solution was to shave the beards.

PN948

But, Mr Brennan, haven't the safety committees told you and employees loudly and numerously as well as the union that it's impractical for them to wear this kind of mask to work 12 hour shifts underground in a hot humid environment?
---The safety committees haven't told me that, no. I have heard that said in other circles but the safety committee has a whole have not told me that. Not on the safety committee, it's only on the 21st and 22nd .

PN949

I beg your pardon, Mr Brennan. Have individuals from the safety committees told you that it's impractical for them to be asked to wear this beard, work an extended shift - wear this mask, working extended shifts underground?---That comment has been made at meetings with the safety committee representatives and the unions but that's the only place that that's been mad mention to it.

PN950

Mr Brennan, I will again refer to the examination of Mr Dubois. At paragraph 820 I said it prevents one hazard. This is where we were talking about the mask -

PN951

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

PN952

Mr Brennan, are you concerned that wearing a mask of this nature for long periods of time without a break doesn't in itself pose safety hazards to employees?
---I'm not sure what hazards you are talking of.

PN953

Well, generally, Mr Brennan, are you concerned that it may pose hazards and we can go through them more specifically?---I'm at a lost to know what hazards that would be or would occur.

PN954

Is it possible that the requirement to wear this mask for lengthy periods underground without break in a hot humid environment could cause safety hazards?---I'm sorry but I am sure there is breaks underground, both crib breaks, meal breaks where they do take them off.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN955

Well, putting the break issue aside?---Yes.

PN956

Does wearing such a mask for lengthy periods in a hot humid environment while working impose safety risks, can it?---Can it? I don't know of any so I have to say no.

PN957

Have you made any investigations about whether it can?---Off the top of my head, no, we haven't because we don't know of any.

PN958

But you have heard numerous complaints?---We have had complaints, absolutely.

PN959

From employees and the unions and safety committee reps?---Yes.

PN960

Saying that it can indeed, they believe, create considerable safety risks for them, you have heard that complained made on many occasions?---No, they haven't said that and they haven't clarified if they have. They haven't clarified what they're talking about.

PN961

Have complaints been made to you, Mr Brennan, that people are concerned about safety aspects of wearing these masks for long periods underground in a hot humid environment?---No.

PN962

No-one has ever said anything like that to you before?---They haven't said there's a risk of wearing those masks underground.

PN963

So, Mr Brennan, at the meeting last Friday?---Yes.

PN964

Was there a discussion about communication problems?---Yes, there was.

PN965

Of wearing these masks. So you wouldn't say that that was a risk that was discussed?---No. No, I wouldn't say communication through those masks is a risk.

PN966

Mr Brennan, I put it to you that there have been some serious accidents in the tunnel, one of them involved a large truck loaded with concrete carrying a trailer that upturned when it was going down the deep line into the underground area and that one of the major factors in that accident was poor communication?
---Absolutely not.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN967

Well, Mr Brennan, why do you say that that couldn't be the case? Why was it not poor communication?---Well, it had nothing to do with - you mean talking from a mask?

PN968

Not, in that mask. I mean poor communication generally?---The accident had - poor communication wasn't the prime principle, main reason why that accident happened.

PN969

Was it a factor, Mr Brennan?---It was a factor taken into consideration but it wasn't a principal reason as to why the accident happened.

PN970

So before even the masks were introduced, Mr Brennan, there's already a problem if people - - -

PN971

MS McKENZIE: I am sorry, I object to that. It hasn't been put to Mr Brennan that the communication problem that is being discussed in relation to this accident has anything to do with the wearing of masks. I mean it could have been, I don't know, but the presence of masks in that accident has not been put to him and doesn't appear to have been established.

PN972

MS CHARLSON: Commissioner, what I am getting at is that the masks will impose a communication problem and that even before the masks are introduced a major communication problem already exists, one that will be considerably exacerbated by the requirement to wear these masks. I submit that it is relevant.

PN973

THE COMMISSIONER: Okay, ask your question.

PN974

MS CHARLSON: Would you like me to re-ask the question, Commissioner?

PN975

THE COMMISSIONER: Yes.

PN976

MS CHARLSON: Mr Brennan, is it the case that there was already problems with communications underground prior to the introduction of this mask?---Not to my knowledge.

PN977

Not to your knowledge. So you believe that there was no communication problems at all underground?---There's communication problems just generally in life. I'm just wondering could you be more specific?

**** JOSEPH BRENNAN XXN MS CHARLSON
PN978

I am putting to you, Mr Brennan, that poor communication underground has already caused accidents even before the introduction of these masks?---Not to my knowledge. It could be a part of it but I'm not saying that communication has been causing a wide range of accidents.

PN979

So you did concede, Mr Brennan, that communication was a factor in the incident we have described that was only about three weeks?---No, I didn't say communication was in the incident described. I mean we considered it I said, but it wasn't a primary - - -

PN980

I believe you said it was a factor, Mr Brennan?---It wasn't one of the primary factors. I also said that.

PN981

A primary factor, but it was a factor and you have already conceded that,
Mr Brennan?---Well, there was no communication for a man driving down - he wasn't communicating, he was just driving. So I can't see where the communication fault was that led or contributed, was a main contributor to that accident. It had nothing to do with it.

PN982

Mr Brennan, I would like to take you again to the transcript. I am going to refer to paragraph 822 but first I wanted to ask you, Mr Brennan, would you say that safety equipment that has to be warn over a long period of time should be reasonably comfortable to wear?---Yes.

PN983

And that if it isn't comfortable to wear it's likely to be impractical?---Well, it depends on the individual and what you deem is comfortable and that kind of thing. There's a settling in - - -

PN984

Well, Mr Brennan, say we are talking about a person who they want to breathe freely and not have sweat dripping down their face and be able to communicate, would you say that that would be comfortable?---Breathe freely and have sweat, I don't know.

PN985

And not have sweat?---I mean I can breathe freely and I can communicate in these masks.

PN986

And you have worked underground in these masks for 12 hours, Mr Brennan?
---No, I have been underground - - -

**** JOSEPH BRENNAN XXN MS CHARLSON
PN987

And you have been able to communicate freely and be comfortable?

PN988

MS McKENZIE: Well, pardon me, Commissioner, there is three questions there.

PN989

THE COMMISSIONER: Yes, Ms Charlson, if you could just slow down a bit and let the answers come.

PN990

MS CHARLSON: Yes, Commissioner?---I'm sorry, can you just ask me that again, I forgot which one you have asked me.

PN991

Yes, Mr Brennan. I have said that you have agreed with me that generally safety equipment should be uncomfortable to be practical?---Safety equipment should be uncomfortable to be practical?

PN992

Should be comfortable in order to be practical?---Yes, it's comfortable as is possibly - as is humanly possible, that's correct.

PN993

Mr Brennan, would you be comfortable if you had sweat dripping down your face and your breathing was impeded and you couldn't communicate clearly with people around you?---I mean in that circumstance no, I probably wouldn't be comfortable.

PN994

Mr Brennan, I would like to take you to paragraph 822 of the WorkCover inspector's examination. I asked him:

PN995

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 have been in tunnels wearing a mask and they're uncomfortable and you can't communicate in them. They're hot. They're not comfortable to wear at all.

PN996

I ask Mr Dubois:

PN997

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

PN998

Mr Brennan, would you be prepared to wear a mask for eight hours underground when you were working?---If it was part of the overall controls where I have a choice of that or being exposed to silica I would definitely 100 per cent wear a mask.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN999

And with no communications would you be prepared to do it?---There is communications. As I said, I don't have a problem with communications wearing those masks.

PN1000

That's not what I asked. I think you might have misheard the question?---Sorry.

PN1001

Without the qualifications, would you be prepared to wear this kind of mask in a hot humid environment for eight hours?---Without the qualifications?

PN1002

You qualified your answers?---Yes.

PN1003

I am saying qualifications aside?---Yes.

PN1004

Would you be prepared to wear this mask for eight hours in a hot humid environment?---If it was part of my conditions of employment and there was safeguards, absolutely.

PN1005

Mr Brennan, I don't believe that you concede that these items become ineffective when they are wet, but you have conceded that they could become wet in the environment we have discussed?---Yes.

PN1006

I take you to paragraph 827 of the transcript. My question to Mr Dubois was:

PN1007

And your experience of wearing one of these in the tunnels recently, how quickly did it become wet?---It became moist. Well, I was in there for two hours and it became most while I was in there because I had sweat running down my forehead and into the mask.

PN1008

Mr Brennan, would you concede that if a person has sweat running down their face the mask is likely to get wet?---I'm not too sure.

PN1009

Mr Brennan, I put it to you that there's almost no way it could not become wet if there was sweat pouring down one's face?---All I know is from the 3M reports that I seen it's made of polypropylene. It's been tested for water resistance. It's high to water resistant and what can I say, if it's a paper mask I would probably agree, but I don't know.

PN1010

Mr Brennan, you have been talking about the 3M study. Do you have a copy of this 3M document with you?---I have a few studies, yes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1011

I call on those documents.

PN1012

MS McKENZIE: I think Mr Brennan has got them.

PN1013

THE COMMISSIONER: Mr Brennan has copies of them.

PN1014

MS CHARLSON: Mr Brennan, it's correct that the masks that we are talking about aren't made by 3M, isn't it?---The masks you're talking about. I don't know who the manufacturer of that is.

PN1015

Mr Brennan, I put it to you that this mask is made by a company called Frontier?
---Yes.

PN1016

Is that correct?---I don't know. I don't have them.

PN1017

Mr Brennan, we have just performed a little experiment and poured some water in the mask. Would you like to examine that mask for me.

PN1018

MS McKENZIE: I don't know what the relevance of all this is. Mr Brennan has already given evidence about the masks - - -

PN1019

THE COMMISSIONER: I don't even know if we are talking about the same mask.

PN1020

MS CHARLSON: Commissioner, this is one that was issued by the company. We have another one in fact. In fact it says on the front of it not 3M. I have got another one in my handbag, also issued by the company and this one is - - -

PN1021

MS McKENZIE: Well, that's a submission that is being put from the bar table. There is absolutely no evidence whatsoever at the moment about that.

PN1022

MS CHARLSON: We can bring evidence if need be, but in the meantime I submit that this mask is one issued by the company.

PN1023

MS McKENZIE: Well, we are not at submissions at the moment, yet.

PN1024

MS CHARLSON: Mr Brennan, if it's correct that masks being issued by another company are being used on the project?---Yes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1025

And I concede that you haven't agreed that that is the case, does that mean then that the 3M statistics that you have been referring to aren't necessarily applicable?---All I can say is when I went to the stores there was hundreds of boxes of 3Ms and they went into research on 3M and every mask that I have had since I have been there has been the 3M masks These are the stores - - -

PN1026

If I could this document to the witness if I may. Mr Brennan, where on this document does it say that the mask is waterproof?---It doesn't say it's waterproof. I never said it's waterproof. It says:

PN1027

The product provides protection against solids, water based and non volatile liquid aerosols that offers protection factors given below.

PN1028

Well, Mr Brennan, I might have misunderstood your answer to one of my earlier questions, but I understood you to say that the mask was resistant to water?---I didn't say the mask was resistant to water. I said it's polypropylene.

PN1029

Mr Brennan, can I take you to one of the documents that was tendered and I am afraid I don't have the number of it. It's this document. Ms McKenzie might be able to assist. It's the toolbox meeting record. M13. Mr Brennan, there's a picture at the base of that document?---Yes.

PN1030

And it's a picture of a mask, is it not?---I don't know. Yes.

PN1031

You can see that picture of the mask, Mr Brennan?---Yes.

PN1032

Would you agree, Mr Brennan, that the picture of the mask depicts this mask in my hand?

PN1033

MS McKENZIE: Well, I object to that.

PN1034

MS CHARLSON: Commissioner, it may not be ..... to you but in fact there's a diagram on the back of the mask packet which is identical to that which appears on the bottom of the form but it has in fact been photocopied.

PN1035

MS McKENZIE: Well, I object. If that wants to be put to Mr Brennan I don't obviously have an objection, but the question was do you agree that the picture shows the mask in my hand and I object to that question.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1036

MS CHARLSON: I withdraw that question and I pose the new question.

PN1037

THE COMMISSIONER: Yes.

PN1038

MS CHARLSON: Mr Brennan, would you agree that the diagram at the bottom of that page appears to be a photograph from the package of this mask? And I am happy to have the mask shown to the witness so he can examine it?---Yes, it's exactly the same.

PN1039

Mr Brennan, would you then concede on the basis of the fact that that diagram appears on the company's own document distributed to workers that that is the kind of mask that is being distributed for use on the project?---Yes, but I would also agree on the ..... of the one I gave you that it has exactly the same diagram on the back of that.

PN1040

No, Mr Brennan ..... that it is the same diagram. It's essentially a similar diagram but the form that it appears in on the package is the identical form whereas this is quite a different form.

PN1041

MS McKENZIE: Well, is that a question or a statement?

PN1042

THE WITNESS: Well, the pictures are exactly the same.

PN1043

MS CHARLSON: Well, I am pointing out to Mr Brennan that his answer is incorrect and give him a chance to examine that.

PN1044

MS McKENZIE: I'm sorry, but we are in cross-examination. Ms Charlson needs to confine herself to asking questions and it would be helpful if
Ms Charlson did the cross-examination, not Mr Dixon and everybody else in the room as well.

PN1045

MS CHARLSON: Commissioner, I am entitled to take instructions and what I did was put to Mr Brennan was that his answer is incorrect and give him a chance to respond to that.

PN1046

THE COMMISSIONER: Yes?---Well, that is exactly the same as that. I didn't put these together. These are toolboxes done by the manager on the individual site so I don't know where they got it from, but it looks like a likely source.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1047

MS CHARLSON: Thank you, Mr Brennan. Mr Brennan, was a risk assessment on the masks performed prior to their introduction for use?---Was a risk assessment done on the masks?

PN1048

Yes?---For the intended work?

PN1049

In relation to any risks associated with a mask to be used on the project?---These masks have been in use for over two and a half years.

PN1050

And was a risk assessment performed - - - ?---I would say there's been a lot of risk assessments done. We had to get the individual JSCAs for those risk assessments.

PN1051

Mr Brennan, have these masks been used for long periods of time on a single shift?---I would say.

PN1052

Prior to recent events?---Yes.

PN1053

Definitely, Mr Brennan?---Yes.

PN1054

I put it to you, Mr Brennan, that generally the masks were only used for short periods of time. They were only worn for periods of half an hour or an hour prior to recent events?---No, I would totally disagree.

PN1055

Disagree?---Yes.

PN1056

And you say there is a risk assessment that has been performed in respect of use of these masks?---There has been many risk assessments done. If I alluded to the one before which was shot-creting and shot-creting has been carried out on this job for well over - well, a year and a half and they have been using the mask and using shot-creting.

PN1057

So, Mr Brennan, you are saying that it's likely that risk assessments have been performed, is that right?---No, it's absolutely a fact that they have been performed.

PN1058

That a risk assessment has been performed in respect of this mask?---Of each individual operation requiring masks, correct.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1059

Well, Mr Brennan, have you shown those masks to the safety representatives or the union when they have been expressing to you concerns about the safety associated with the use of those masks?---Have we been showing the masks to the unions or the - - -

PN1060

Have you shown the risk assessments to the unions and the safety representatives who have been saying that they are concerned about the safety aspects of these masks?---The risk assessment is actually done by the employees. Safety committee have been involved in those processes so there is an abundance of risk assessments already done. We do risk assessments in consultation with workers, so one would assume that the workers know about risk assessments because they're involved in them. As far as my obligation to give these to the unions, I didn't know I was under an obligation to do that.

PN1061

But, Mr Brennan, you would agree, wouldn't you, that for the last couple of weeks the unions and the safety representatives and delegates have been saying to you they are very concerned about the safety aspects firstly in relation to the silica dust?---Correct.

PN1062

And secondly, in relation to the company's, we say, inappropriate response, and thirdly, in relation to the use of these masks?---Correct.

PN1063

Is that correct?---Yes, they have mentioned that to me, yes.

PN1064

That's correct. So, Mr Brennan, if safety assessments have been performed and say that use of these masks are safe, why were those assessments not shown?---I wasn't asked - - -

PN1065

To the unions and safety representatives to assuage their concerns?---I wasn't asked to produce those to the union representatives, nor was I actually asked to produce them to the safety committees.

PN1066

But, Mr Brennan, you are saying that there are documents which show?---Yes.

PN1067

And I assume that those risk assessments you are saying show that the use of the mask is safe, is that correct?---What those risk assessments show is in the operation there is dust, there is a dusty operation and hence a dust mask must be worn or appropriate approved Australian standard dust mask, and indeed that's we have. It's a 3M dust mask and an Australian standard approved dust mask for this type of work.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1068

Well, Mr Brennan, I don't believe that you answered the question?---I'm sorry.

PN1069

The question was, is it correct that the risk assessments showed that use of the masks is safe?---The risk assessments show that the use of the appropriate dust mask for that operation is the appropriate approved dust mask. In other words, that's what - - -

PN1070

Mr Brennan, could you please answer the question?---I thought I did.

PN1071

Does the risk assessment show that use of these dust masks is safe?---Yes, it says - the risk assessments show that in use of dusty operations you wear approved dust masks. That is the safety - - -

PN1072

Well, is it - - - ?---I have just about finished. That is the safety control for that risk.

PN1073

But with respect, you still haven't answered the question. The question, is it safe to wear the masks and does the risk assessment show that?---I am saying that the risk assessment done by employees and managers and safety committees refer to the 3M approved Australian standard dust mask for the use in particular operations. That's what it shows. In relation to say road heading operations we move to Raycor's because we need a higher level of protection. So we have done that as well. So we refer to what is the appropriate mask or level of protection for that given operation. That's what a risk assessment is.

PN1074

Commissioner, I think that that's an unresponsive answer. I have asked the question in very simple terms.

PN1075

THE COMMISSIONER: I think it shows criteria that you are coming from and the criteria for risk assessments are somewhat different. That's what it is.

PN1076

MS CHARLSON: Nevertheless, the question that I have asked is a very simple question and I think a simple answer and I have just created something of a safety hazard here. It really does require a simple answer. If I was a worker on the safe, and I apologise for straying into the submission territory but I do think it's necessary in this instance, I would be considered about whether or not these masks are safe. Can you tell me that the risk assessments say that wearing this mask is safe?

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1077

MS McKENZIE: Well, I'm sorry, I object. Mr Brennan has already explained risk assessments are done in respect of each particular operation. Which operation is Ms Charlson asking the question about?

PN1078

MS CHARLSON: Well, I understand that risk assessments need to be performed on the use of equipment. Of course the particular site that we are referring to and we are concerned about in this instance is within the tunnel?---Yes.

PN1079

So if you are telling me that a risk assessment has been performed such as to satisfy the company's obligations to perform risk assessments in respect of use of equipment in this place, could you please tell me whether the risk assessment says that use of this mask is safe?---As I said, I think I have answered the question. I can't answer. The risk assessment is done by employees. That's referring to the safety equipment required to do the job and which it's deemed by that group of people doing that risk assessment that that is so. That is their safety controls for a particular job and there may be - - -

PN1080

Mr Brennan, could you please provide us with a copy of the risk assessment that says that wearing those masks is safe?---Well, there's an abundance of them. Can you specifically tell me which one you want?

PN1081

I want the one that says - and I am not aware of which ones there are, but I want the one that says, and your answer hasn't clarified that for me, that says that wearing this mask for extended periods in the tunnels is safe?---I will show you risk assessments that says if there's dust in the tunnels the control is ventilation, mitigation, elimination, engineering, personal protective equipment, dusk masks.

PN1082

Well, I call on that document.

PN1083

MS McKENZIE: Well, I'm sorry, it isn't identified what document Ms Charlson is calling for. Mr Brennan has been trying to explain what a risk assessment is. Now, if there's a particular document that Ms Charlson has in mind or if there's a document she wants to show me then obviously she can do that, but I don't know what Mr Brennan is under an obligation to produce subject on the court.

PN1084

MS CHARLSON: Well, Commissioner, I asked Mr Brennan whether a risk assessment had been performed in respect of where the use of these masks is safe. Mr Brennan told me that numerous risk assessments were performed that impact on that and that I understand his answer may be, show that the use of the mask is appropriate if not safe. I would like to see those documents. They allegedly exist. He has referred to them on numerous occasions. I would like to see the document that allegedly shows that what we are complaining about is not a matter of concern.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1085

MS McKENZIE: Well, in my submission that is not a proper process to adopt in the course of cross-examination to embark on some fishing expedition. If there are documents that the union wanted to obtain then there are other means by which they could have embarked on that exercise before today with the assistance of the Commission or even just by asking. But Mr Brennan is in cross-examination, if he has those documents - perhaps you could ask him if he has any of those documents in his possession and if he does, presumably he will be able to provide them. But if he doesn't have them in his possession how is he going to get them and when he is going to do that?

PN1086

MS CHARLSON: Commissioner, we did not even know before today that
Mr Brennan was going to be called to give evidence with any certainty.

PN1087

MS McKENZIE: Yes, you did.

PN1088

MS CHARLSON: We knew that the company intended to bring in new witnesses and that Mr Brennan's name had been mentioned, but certainly we did not know what he was going to say. We would also submit that the company's failure to produce these documents themselves, if the risk assessment that's been referred to has in fact been performed, leads to a negative inference being drawn in respect of those documents not assisting the company's case.

PN1089

THE COMMISSIONER: The company is not relying on the documents.

PN1090

MS CHARLSON: The company is not but we are saying the company has identified them as existing. We have asked whether a risk assessment has been performed, they say yes, it has. They have failed to produce those documents and we say the failure to produce those documents means that a negative inference can be drawn about what in fact the risk assessment shows in respect of whether wearing the masks is safe.

PN1091

MS McKENZIE: Well, make that submission if we ever get there.

PN1092

THE COMMISSIONER: Well, that's a submission which we will come to no doubt.

PN1093

MS CHARLSON: Certainly, Commissioner. I mean Mr Brennan has referred to these documents and he has relied on them in his evidence and we haven't seen them.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1094

Mr Brennan, would you agree that the NOHSC standard that you referred to has higher levels that are acceptable for silica dust in relation to a shorter period of time and that the level decreases over a longer period of time, is that your understanding of that standard?---Yes. For a standard of point 1 for eight hours are you talking about and as you - - -

PN1095

For 8 hours?---Yes, and as you get on you decrease, correct,

PN1096

And what would you say from your understanding of that standard is the relevant figure in respect of an 11 hour period?---I would have to look at the Pickford and Ryder reports but I believe for 12 hours it's point 05.

PN1097

Point 05 for 12 hours is your understanding. And for a longer period of time?
---I'm not too sure. I am not an expert, nor do I know how to do that calculation. But I have only been told three levels by Pickford and Ryder. There is a formula there.

PN1098

So you would agree, wouldn't you, Mr Brennan, that a longer period of exposure is more line safe than a shorter period of exposure to quartz silica dust?---A longer period of exposure is more line safe than a shorter period?

PN1099

Yes?---Yes, well, if you were exposed to it, yes, it would be.

PN1100

Mr Brennan, I would like to take you to a report and I have got some copies here if we could have the witness shown the document. Mr Brennan, you might need a moment to have a look at that document and the Commission also. If you could just indicate when you have finished, Mr Brennan, thanks?---Yes, sure. Yes.

PN1101

Thank you, Mr Brennan. Mr Brennan, do you know of the organisation called Environmental Monitoring Services?---No - yes, I do remember the name but I haven't dealt with them personally, but I do recall that name.

PN1102

Can you tell me anything about that organisation?---No, I can't. I do remember the name for some reason but I can't, no.

PN1103

Mr Brennan, is it correct that Environmental Monitoring Services are expert hygienists of a standing equivalent at least to that of Pickford and Ryder, do you know that?---I didn't.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1104

Mr Brennan, you have had a chance to have a look at this document?---Yes.

PN1105

I might just take you to some of the paragraphs in it. The first one reads:

PN1106

The workers concerns about the serious OHS breaches, that the Thiess Hochtieff Joint Venture intend to maintain during the construction -

PN1107

Blah, blah, blah -

PN1108

Should be addressed immediately by the duly appointed OHS committee.

PN1109

So that's the concern, would you agree that that's the case?

PN1110

MS McKENZIE: I object and I should make - base the objection to a question on this document. See, I don't know whether it's intended to be tendered. It appears to be a response to Mr Dixon which refers to:

PN1111

After reviewing all the information you sent me -

PN1112

Mr Brennan does not know what that information is. There is then a reference to serious OH&S breaches which is presumably - now that's a legal question if there's been breaches of OH&S regulation or not and it proceeds to make comments on material which is unavailable to the Commission. I can't see the relevance of any questions being asked of Mr Brennan about an email which is sent from a person who is not here to somebody else which is responsive to information which is not identified and not available.

PN1113

MS CHARLSON: Commissioner, there is an unfortunate omission in this report that the author of the report has neglected to identify the information that was provided to him. Nevertheless the information was provided by Mr Steve Dixon who is here today and he's prepared to give evidence about what information that was and if necessary he can give that evidence immediately.

PN1114

MS McKENZIE: I maintain my objection on the grounds of relevance.

PN1115

THE COMMISSIONER: Are you seeking to tender this document?

PN1116

MS CHARLSON: I am yes, Commissioner. The Pickford and Ryder reports that have been put to us also are put by - are made by a person who is not here for cross examination. I don't think that that is a relevant factor. It is a factor by a person who's - it's a report by a person who is appropriately qualified, written to Mr Dixon in exactly the same fashion that the Pickford Ryder report is a report addressed to Mr Joe Brennan. It's a communication where we - you can't cross-examine the author but - and furthermore we don't know exactly what information was provided in respect of the Pickford Ryder report, so what instructions? It nevertheless comments on the documents that we have seen in the Commission and Mr Dixon can give evidence about that.

**** JOSEPH BRENNAN XXN MS CHARLSON

MS McKENZIE: To suggest that an email from Mr English to Mr Dixon carries the same character or status as the Pickford Ryder reports I think is taking a very long bow. I object to the tender of the document and if the questions that are being asked of Mr Brennan are designed to provide evidence which will then somehow, together with the tender of the document, be a basis for some submissions then we have even more concerns. If there is no evidence about environmental monitoring services, there is no evidence about what they were asked to do. They have not been asked to put on any expert information of the kind that Pickford Ryder did. Pickford Ryder carried out analysis on their results so there they've not been asked to express general views about concerns of safety, so it's quite a different - two quite different documents.

PN1117

Mr Dixon giving evidence about the information that was provided doesn't solve the problem, Mr English is the author of the document. If the Commission allows it will have so little weight as to be lacking in any probative value whatsoever so we maintain our objection on the grounds .....

PN1118

MS CHARLSON: Commissioner, obviously in these proceedings speed was of the essence. The person who is the author of this report, Peter English, is a licensed hygienist with qualifications very similar to those of the person who prepared the Pickford Ryder report. Obviously with the resources available to the union and the amount of time involved, it is difficult for us to commission a more detailed report, nevertheless what we've asked this hygienist to do is to comment on the relevant standard and also the reports that have already been provided by Pickford Ryder in respect of the concerns of the employees about safety so we'd submit that it is a highly relevant document and of great weight, as great a weight as Pickford Ryder.

PN1119

THE COMMISSIONER: Well, at the end of the day it's ..... for me to weigh a document. At first glance it is subjective in many regards and makes assumptions which may not be accurate but I will allow the tender of it at least to - - -

PN1120

MS CHARLSON: Certainly, Commissioner, and we'd ask you, subject Pickford Ryder report, to similar analysis in respect of subjective and unjustifiable remarks.

PN1121

THE COMMISSIONER: Well, I will. I'll give them both the same test but - - -

PN1122

MS CHARLSON: For the record, Commissioner, Mr Dixon ..... that the documents that were provided to Mr English were exhibits M6, being the two reports of Pickford Ryder and exhibit M9 which is the NOHSC Standard and nothing else.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1123

Now, Mr Brennan, you've had a chance to consider this report?---I've read the report.

PN1124

You can - well, email such that - you can see at paragraph 2 that the author of the report considers that the concerns of the workers are well warranted?

PN1125

MS McKENZIE: Sorry, I know I'm being pedantic but can I just object? The email describes the contents as comments. Nowhere does it appear the word "report." They are comments.

PN1126

MS CHARLSON: Well, Commissioner, I think that that is a pedantic comment but I don't know that reports can't contain comments or that comments can't be contained in reports. Irrespective, it is a document that sets out comments in relation to the two documents that the author was asked to review and I - if the Commission has a difficulty with me referring to it as a report then I will refer to it in some other fashion.

PN1127

THE COMMISSIONER: Let's move on.

PN1128

MS CHARLSON: Mr Brennan, you'd agree that at paragraph 2 of this report the author states:

PN1129

The concerns of the workers are well warranted.

PN1130

?---Yes, I see it says that, yes.

PN1131

It does say that?---Yes.

PN1132

And it also says that:

PN1133

Some of the airborne respirable quartz levels measured on 10/2/05 as personal standards but a consultancy, Pickford and Ryder, employed by the company within the tunnel, exceeded the national occupational health and safety commission's exposure standards for atmospheric contaminants in the occupational environment by as much as six times.

PN1134

?---Yes it does say that.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1135

You agree that the report says that?

PN1136

MS McKENZIE: Well, I'm sorry - - -

PN1137

THE WITNESS: It says that.

PN1138

MS McKENZIE: - - - but apart from establishing Mr Brennan can read, what is the relevance of those questions?

PN1139

MS CHARLSON: That question was going to be followed by another question which would be, does Mr Brennan agree that, in fact, the Pickford Ryder shows that standards have been exceeded by up to six times?---I'd have to go back to the report - - -

PN1140

I'd have to take you to it, Mr Brennan?---Particular sentence.

PN1141

It's the second report is the one you need to look at. That's the report of 18 February 2005.

PN1142

THE COMMISSIONER: I thought you said that Mr English was given exhibit M6 which is the report of 10 February - - -

PN1143

MS CHARLSON: I understand, Commissioner, that both reports were M6. I beg your pardon, that was mistake.

PN1144

THE COMMISSIONER: 18 February.

PN1145

MS CHARLSON: M6 and M7 is - so then I correct the record, he was given M6, M7 and M9.

PN1146

THE WITNESS: You want ..... for the 18th?

PN1147

MS CHARLSON: Yes, the report of the 18th, page 6, please Mr Brennan?
---Yes

PN1148

You can see there's a chart with a number of results listed?---Yes, correct.

PN1149

If I could ask you to return to the third last one and read that line across to me?

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1150

Deli Road, Edward Danny Carpenter, respirable dust is 1.55, respirable quartz is 0.62.

PN1151

Mr Brennan, would you agree that that second figure 0.62 - - -?---Yes.

PN1152

- - - is in excess of six times of the acceptable standard of 0.1?---Yes.

PN1153

You would? And that's even for the eight hour shift, let alone for the longer period of time?---Depends on what it was measured over but, yes if it's 8 hours or something, I don't know when the measurement was, I'd have to go back to the time.

PN1154

I'm instructed that the measurements - and this is your report - you'd agree that these measurements were based on 8 hours?---They were calculated on 8 hours, that's correct yes - although the standards were, if you look at the adjustments in the extended shifts there was an adjustment made on each and every one of those because of the extended shifts that those people worked. So in relation to these people they would have worked 10 hours so that adjustment would have been made, one would assume. I'm not too sure.

PN1155

I don't know whether the report says that Mr Brennan but irrespective of that would you agree, on the basis of that figure, that the concerns of the workers are indeed well warranted?---I know these two gentlemen, the concreter, Sammy Vassella was actually jack hammering. He had a personal dose meter, that's why his is also high and Edward Denny was also working in the close vicinity and he had a personal respirator on as well. Both people had dust masks on but their filters got all of the stock coming out from the jack hammer.

PN1156

Sorry I fail to see how that ..... please answer my question?---Well, well, no, you - sorry - - -

PN1157

My question is do you believe - - -?---Yes.

PN1158

- - - do you accept that the concerns of the workers are well warranted?---In relation to, sorry?

PN1159

In relation to the high levels of respirable quartz that have been tested?---If you are getting results like these, from the personal - I mean, the personal dose measurements went through, both people were working - one was jack hammering and one was standing beside him, so it makes sense that you get readings this big. The dust is coming straight from the jack hammer into the personal dose meter.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1160

Mr Brennan, do you accept the workers are right to be concerned that the levels of respirable quartz are six times the standard?---They're not six times the standard if you average all those out, that's not six times the standard.

PN1161

In some instances six times the standard?---Those - in those incidences they were high and, as I'm saying, we know the process of which way they're high and how they became high.

PN1162

So you would accept that that's a good reason for concern?---I wasn't - we weren't concerned in this ..... because both gentlemen had dust masks on.

PN1163

Well, I wasn't asking if you were concerned. I was saying do you think it is reasonable for them to be concerned?

PN1164

MS McKENZIE: I'm sorry, I object to that. It has not been established that these two gentlemen are the workers whose concerns are referred to in the comments of Mr English.

PN1165

MS CHARLSON: I'm happy to broaden that question. I'm happy to say is it reasonable for all workers to be concerned that all workers are testing at six times the national standard?---If they raise concerns, yes, and we would explain it as to why.

PN1166

That was not the question, Mr Brennan. The question is are they right to be concerned?---Well, if they are concerned, yes, they have a right to be concerned.

PN1167

Are they right to be?---No.

PN1168

No?---Sorry, I don't know what you're

PN1169

What I'm asking you again is a very simple question?---Yes.

PN1170

Are they right to be concerned about these high results?---Well, we tabled this on the 21st and 22nd. We went through every one of the results and we explained these two results. They weren't concerned at those safety committee meetings once we went through the explanation of it and that indeed - - -

PN1171

And these two employees were at those safety committee meetings?---No, they're not safety committee members.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1172

And other employees might be concerned other than those who were at those meetings?---Well, it would need to be explained to others then where these two high readings come from. If they express concerns, then they express concerns and they need to be - those concerns need to be answered.

PN1173

Mr Brennan, if I can take you to paragraph 3 of this report?---Yes.

PN1174

And read that to you briefly. It should be noted that the first paragraph of
section 7, Comments and Observations of the Pickford and Ryder Report states:

PN1175

On the day of sampling the tunnel boring machines were not operating anywhere in the tunnel system.

PN1176

?---Yes, I've read that. Yes, go on.

PN1177

And it does indeed say that?---Sorry, I've got it.

PN1178

And that is indeed a correct statement of fact?---Yes, that's what it says.

PN1179

Is it correct that on the day of the sampling the tunnel boring machines were not operating in the tunnel system?---If it says it here, I would assume so, yes.

PN1180

And is it correct, Mr Brennan, that what we are mostly concerned about in respect of creating dust, what these discussions have been about is the tunnel boring machine?---Sorry, what was your question? I notice that I noted in this as well there's TBM1 had static, two static and three personal monitoring done:

PN1181

2B1 deck 17, TBM1 conveyor construction inverted front laying rail upside down at crib room and on pulping deck.

PN1182

I beg your pardon, Mr Brennan?---So there was monitoring on TBM on this report.

PN1183

Well, Mr Brennan, I don't know again that you have answered the question. The question is ---Mm.

PN1184

Is the statement correct on the day of sampling?---Yes.

PN1185

The tunnel boring machines were not operating anywhere at the tunnel system, is that correct?---As I'm reading it, that's what it says, but I'm just wondering why then we've go five readings back.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1186

Well, Mr Brennan, if it is correct - and this is your company's report that you commissioned?---Yes.

PN1187

How can the samples - how can the readings be of any value given that it's very likely that the levels are lower when the tunnel boring machines are not operating?---There's two different ventilation systems in the tunnel. One's for the general tunnel and one's for the tunnel boring machine. They operate independently.

PN1188

Well, that's not made clear in the report, is it, Mr Brennan?---What report?

PN1189

Your Pickford Hyder Report---No, it's made for ventilation designed for the whole of the tunnel though.

PN1190

In addition, Mr Brennan, if you turn again to that comments and observations part at the Pickford and Ryder report?---Yes.

PN1191

It says:

PN1192

On the day of sampling the tunnel boring machines were not operating anywhere in the tunnel system.

PN1193

?---Yes.

PN1194

So they weren't operating anywhere in the tunnel system, were they,
Mr Brennan?---That's what it says. I'm not too sure. As I said, I'm wondering then why we've got - we got measures, but that's what it says.

PN1195

So you are relying on these respirable quartz, Mr Brennan?---That's correct.

PN1196

To show that the standards can be - that the amounts of respirable quartz can be controlled by these devices and that you can meet the safety standards in that fashion?---I'm sorry, could you repeat that please?

PN1197

The question is in respect of the figures you are relying on the report, are you not?---Are we relying on our experts, Pickford and Ryder to tell us what the level of dust is in the tunnel, that's correct.

PN1198

But the report says ?---Silicon dust.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1199

That at the time the samples were taken - - -?---Yes.

PN1200

The tunnel boring machines weren't operating, is that right?---That's what it says, yes.

PN1201

Well, how then can you be relying on those figures as accurate representations?
---Well, the other thing to take into account is that's why we commissioned Pickford and Ryder to defer the testing, especially when the two TBMs are up and running. We started that last Monday night with one TBM1 over an eight hour period.

PN1202

Mr Brennan, that really brings me to another issue and I will come back to this report?---Yes.

PN1203

The other issue is in respect of when the company found out that the standard was changing?---Yes.

PN1204

And you have let us know that that happened before the end of last year?---Yes.

PN1205

And yet no testing results were made available to the company until 10 February this year ---We didn't have any at that date, no.

PN1206

None were being done. So essentially for six weeks?---No, they were starting to be done, but we had the break up at Christmas.

PN1207

But the boys were working?---Playing part. I believe some were working, yes. I wasn't working. I don't know.

PN1208

So for six weeks they were working after the standard had changed?---I don't know how many were working and what they were doing, but - - -
Well, Mr Brennan, you have been able to get us results within 3 days conveniently for the Commission hearing and yet it took you 6 weeks to get results after the standards had changed?---It didn't actually take us six weeks. I mean everyone broke up for Christmas. Then NATA laboratories closed down. Pickford and Ryder couldn't do it, nor could we get any other testers to do it. So there was your delay. We didn't get back on - I didn't get back on the job until 5 January myself when normal work resumed.

PN1209

But workers were working during that period, Mr Brennan?---I don't know if they were. If they were, they were and I don't know what they were doing.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1210

So for six weeks people were working?---I don't know. I'd have to - - -

PN1211

Conceivable?---I'd have to check.

PN1212

After the standards had changed with no results as to what the levels were in the tunnel?---Well, as I said, I don't know if they were working and what sort of work they were doing. Were they doing work that actually generated dust? I'm not too sure. I'm sure the TBM wasn't operating.

PN1213

Mr Brennan, what tests were done prior to the standard changing?---Prior to the standard changing?

PN1214

Yes?---We'd done extensive testing with new environment which was another testing. We also - well, yes, new environment was the main one we did.

PN1215

And, Mr Brennan, you mentioned in your examination-in-chief that both parties agreed to Pickford Ryder as being the appropriate company to perform testing?
---Correct.

PN1216

Who were both parties?---Sorry.

PN1217

Who are the parties you refer to?---That came out of the Commission, the Commission's hearing last year. Both parties were unions and THJV as far as I remember.

PN1218

So there was a Commission hearing in respect of whether or not testing should be performed, is that correct?---No, there was a - well, I'd have to go back to the transcript to find exactly what it was, but I know we had to get somebody, an expert, in to have a look at our ventilation systems. There were a couple of issues and that was Cold Services Australia. That was agreed to. Cold Services Australia came in and did what they did and provided a report. That was published and then Cold Services Australia recommended some others do the testing, as, one, they weren't NATA accredited and, two, they didn't have the facilities to do it, so they recommended X amount. We put those people up. There was others put up and it was finally agreed on Pickford and Ryder, from what I believe.

PN1219

Mr Brennan, please restrict yourself to answering the question that I've asked. The question that I've asked is was there a Commission hearing in respect performing testing on respirable quartz?---I'm not too sure. I'll have to go and look to the specifics of that.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1220

But you have referred to it, Mr Brennan?---That's correct, but I generally don't understand that as the case, but for specifics I would to go look.

PN1221

Mr Brennan, is it correct that until the union requested testing be performed, no testing was in fact being performed by the company?---No, that's incorrect.

PN1222

It is incorrect?---Yes.

PN1223

So when was the testing being performed?---We have been performing testing since day 1 on this project.

PN1224

On respirable quartz in the air?---Of respirable quartz and general dust. We do both internal measures ourselves and we've been using new environment as far as respirable quartz is concerned.

PN1225

And the reports of new environment are available to show the results of testing?
---Yes, sure.

PN1226

I call upon those reports?---Back at the office. They've been published. They've been on notice boards for two years. We actually also do above ground on the batching plant with new environment, but since we've been using Pickford and Ryder we've dropped new environment off.

PN1227

Commissioner, in the even that we don't finish today, I would ask that copies of those reports be made available, if we don't finish.

PN1228

MS McKENZIE: What is the relevance of these reports? Whose case are we running here, ours or the unions?

PN1229

THE COMMISSIONER: Sorry?

PN1230

MS McKENZIE: I'm not sure whose case I'm meant to be running, mine or the unions.

PN1231

MS CHARLSON: Well, certainly, Commissioner, these reports have now been referred to. They've been relied upon by Mr Brennan - - -

PN1232

MS McKENZIE: Well, I'm sorry, I object to these reports. It's not a question. He was asked a question whether there are reports. He said yes. She said I'll call on the reports. Now we are not relying on these reports. They are not in our case. They are not in evidence. He was asked a question about the existence of some documents going back to day 1 of the project......We are not relying on the reports. It is not part of our case. If they want to use it as part of their case they need to obtain them and decide how to run with them.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1233

MS CHARLSON: Commissioner, the reports may not have specifically been relied on by Mr Brennan, but the study is by the company who commissioned have been and I had asked if the testing that they have done has been put into written form in a report. I've been told that it has and we would say that it is necessary for us to see that information. The contention of the union is that testing has not been taking place in accordance with the regulations. It is only since the union has started talking about these issues that anything constructive has happened at all and that if the case for the company is not as it is claiming being properly concerned about these aspects of safety.

PN1234

Well, I'm sorry, but it is not sufficient to make unsubstantiated allegations and then claim that the company bears the onus of refuting them. There's been all sorts of allegations made from the bar table, without one skerrick of evidence yet. It is not the company's job to bear the evidentiary onus of refuting the allegations, which come up in cross-examination of the company's witnesses. If there's evidence that the union's got, they can put it. Mr Dubois has not cross-examined about any of this stuff. He's the only witness we've had so far from the union. But it's not the company's job to refute the allegations when they're put unsubstantiated from the bar table.

PN1235

Commissioner, I don't know how Mr Dubois could have been cross-examined about reports that the company requested last year. But it certainly is the case that Mr Brennan's now relying on the fact that testing has taken place. We're challenging that. He says that that can be substantiated in a document. We'd like to see the document. And in the event that we don't see the document, we'd ask that a negative inference be drawn that the documents will not assist the applicant's case.

PN1236

THE COMMISSIONER: The onus is on the applicant in this matter, to establish that - and this might be an appropriate time just to try and get things back into perspective a bit, I think. The onus is on the applicant to establish that industrial action is threatened, pending or probable. And that then arms the Commission with the jurisdiction to issue an order. That's what we're here about. The matter seems to be taking on a life of its own and becoming very forensic in terms of going back in detail over some period of time. The question is not, whether or not either the company, employees or the union have concerns about occupational health and safety. That's not the question. I have to really consider the relatively narrow issue, at the end of the day. My reluctance to issue an interim order at this stage, although I've indicated that the balance of convenience is in favour of the company receiving such an interim order, is simply, not simply, but a question of whether the concerns about health and safety and the inhalation of dust and silica, is sufficient in relation to the definition of industrial action.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1237

That's the matter at the end of the day which I have to determine. I think, as I said, the matter is taking on a life of its own. It's developing - I'm not saying that the union's on a fishing expedition - but I would ask that it confine itself to a narrower focus than what we are heading down a path now. You just mentioned that the matter may not finish today. If that is the case, well then, the company's certainly at liberty to seek an interim order again. I confine my comments to that, at this stage.

PN1238

MS CHARLSON: Certainly, Commissioner.

PN1239

If I could take you back then to - Mr Brennan, to the report that you were referring to earlier. Could I ask you to please read the first sentence of paragraph 4?---"In EMS's view it is ..... to measure what is exposure to a known hazard or substance such." The first sentence, the whole thing?

PN1240

Yes, just the first sentence?---Well, that was the first sentence.

PN1241

No?---Sorry, "as silica quartz when the activities are generated into the air are not being carried out (operational to the boring machine)".

PN1242

Mr Brennan, do you agree that it's difficult for you to rely on reports that are performed, where the activity that generates the dust is not in operation?---Well, just say this, there's a lot of activities generate dust beside the tunnel boring machine. Because of the limited measures on the tunnel boring machine, we commissioned Pickford & Ryder to do further testing on the tunnel boring machine. So, I can't agree with this because the tunnel boring machines have their own ventilation system that's independent of the other ventilation system in the tunnel.

PN1243

Do you agree, and I know I've already asked you this, so I'll try and be brief, that the Pickford & Ryder report says they weren't being used throughout the area at the time?---Yes, that's correct. If that's what it says, yes.

PN1244

Look, if we can just perhaps skip down this, paragraph 6?---Yes.

PN1245

Paragraph 6. Could you please read the second sentence out loud?---

PN1246

It is a requirement of the New South Wales OH&S Act 2003 regulation 2001 that any occupational environment that poses an elevated risk to personnel such as the tunnel should be clearly defined and appropriate warning signs should be displayed on the boundary of the exclusion zone warning personnel and the general public that unauthorised people are not allowed to enter into the area . without the appropriate personal technical. equipment

PN1247

Has that happened, Mr Brennan?---I don't - no, it hasn't and I don't know of that particular requirement in the OH&S. regulation.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1248

Can I ask you to read the next sentence please, Mr Brennan?---

PN1249

A constantly updated OH&S plan should be available to all persons working in the vicinity of the exclusion zone, so that they are made aware of the dangers of any safety protocols or PPE requirements when they enter the exclusion zone.

PN1250

Is that happening, Mr Brennan?---No, it's not and I don't know any legal requirement for that to happen either.

PN1251

Could I ask you to please read all of paragraph 7?---

PN1252

Generally there are allowances made to personnel who are to work in the exclusion zones where there are elevated risk to their health and personnel are subjected to discomfort of wearing PPE. It is generally accepted in areas were personnel have to wear PPE because of the hazardous materials in their occupational environment. An 8 hour shift consists of, 2 hours on,1 hour off, another 2 hours on, 1 hour off and then 2 hours on.

PN1253

Mr Brennan, it's correct, isn't it, that at the meeting last Friday, with the work cover inspector, Mr Dick Whitehead, OHS officer at the CFMEU, put forward, as a possible solution to the problem that we're dealing with, that employees should be permitted to take breaks when wearing the mask?---I remember, Mr Whitehead making something along the lines of another tunnel somewhere - does this type of thing, mentioned one off, two on - I can't remember exactly what Mr Whitehead said. But something along those lines.

PN1254

Mr Brennan, did he say to you that standard practice in areas where masks need to be worn, such as asbestos removal, is there a break of say, 20 minutes for every one hour with the mask worn?---I can't remember that.

PN1255

And that the length of the break necessary, lengthens if the period for which the mask is worn is also longer?---I can't remember. I'm sorry. He may have said that. I just can't remember, I'm sorry.

PN1256

And you don't recall then, Mr Brennan, your refusal to consider that as a possibility?---As I said, I don't even remember anything along those lines. I remember the two hours off - I remember Mr Whitehead saying something there, but I'm not too sure exactly what he said.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1257

So, you're not aware of this practice in the industry, in respect of wearing masks that because of the discomfort that is associated with wearing those masks, workers should be permitted to take breaks?---I know of no tunnel job at the moment that does two hours on, one hour off, two hours on, one hour off, that does those type of things.

PN1258

Do you know of any jobs where breaks are given in respect of the discomfort that is caused to workers as a result of wearing masks?---In our industry?

PN1259

Generally?---No, well, I'm not aware, no.

PN1260

You're not aware. What about your last job, Mr Brennan?---What about my last job, before this one? It was the M5 east project.

PN1261

Yes, a nuclear reactor?---It was a building job.

PN1262

Yes, were breaks given in respect of the discomfort of wearing masks?---Not to my knowledge, no. It wasn't a tunnelling job. It was a building job.

PN1263

Mr Brennan, if I can again take you to transcript in respect of the WorkCover inspectors examination sheet. Paragraph 903. I said:

PN1264

Well, If I told you these employees were working shifts of 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.

PN1265

What would that concern be?---The concern would be, how do they measure how his dust mask is performing underground, where does he change his dust mask if he's underground because there are no areas under there that are clear and free from dust.

PN1266

Mr Brennan, are there any areas underground that are clear and free from dust?
---Yeah, there possibly is.

PN1267

Possibly?---Possibly. Free from ..... or just generally free from dust?

PN1268

No, free from dust?---Free from dust?

PN1269

Say a sealed room with special air circulating that is free from crystal quartz dust in the air?---I'm not too sure.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1270

So, if we can say safely, that there is no such place?---I don't know. I just said, I'm not too sure.

PN1271

Mr Brennan, where are the workers meant to change their masks?---They change their masks where they're working.

PN1272

Right, and when they change their masks, they're exposed to quartz silica?---In the process of changing over a mask, one would assume so, yes.

PN1273

Mr Brennan, where do the workers eat?---Underground, or - which workers are we talking about?

PN1274

What about TBM workers and the tunnel line workers?---According to my friend, they eat in the crib rooms down below.

PN1275

Does the crib room - what kind of air circulates in the crib room?---Just air through a normal air conditioner, as far as I know.

PN1276

And what sort of filters are on that air conditioning? And how often are they cleaned?---I'm not too sure.

PN1277

Are they cleaned at all, Mr Brennan?---I'm not too sure. I'd need to check. I'm not responsible for cleaning air filters - - -

PN1278

So workers working in those ..... rooms could well be exposed to silica dust while they're eating there?---They possibly could be, yes.

PN1279

They could be eating that silica dust?---In the sandwiches or - - - ?

PN1280

Well, it's on their hands. They could be consuming - - - ?---If they don't wash or if they don't have good hygiene practices it could find its way, yes.

PN1281

But Mr Brennan, this stuff's in the air, not just on their hands. They could be breathing it in while they're eating?---They could be if it's contaminate - - -

PN1282

You say that they could be - - - ?---If it's contaminated.

PN1283

And they could be consuming the dust?---If it's contaminated they could be breathing it in, yes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1284

Mr Brennan, again I want to take you to the WorkCover inspector's comments here in the commission yesterday, paragraph 947, for the benefit of anyone ..... the transcript. What the witness said was:

PN1285

Safety officer said "Don't quote me on this but they addressed the problems 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 they're still looking at systems to try and cut the dust silica levels in the tunnel.

PN1286

Is it correct from what you said to Ms McKenzie, that these masks are intended to be an interim measure?---They're part of an overall armoury to make sure that the employees are safe.

PN1287

So it's the company's intention that workers will have to go on wearing these indefinitely?---Its not the company's intention. No, we look at - aim at improving all of our controls and if indeed through further measure and from Pickford & Ryder who we've got happening in the next four weeks. If the measures come down we will take the dust masks off. Bearing in mind we haven't been wearing dust masks generally in the tunnel the last two years because of the standards.

PN1288

But Mr Brennan, is it correct to say that you have no specific plan in mind in order to - - - ?---No, that's not - - -

PN1289

- - - correct the problem so the masks don't have to be worn?---That's not correct. We have a whole range of series of issues we're looking at far as improving our controls which was actually tabled. It was consulted through the employees at ..... They indeed made comments and recommendations which were taken on board and actually in that - in that - in that sheet.

PN1290

So Mr Brennan, that brings us to another point. You've asked us, or your counsel has asked us, to have a look at this document, M14, which is the Australian Institute of Occupational Hygienists and you took us to page, or your counsel did, page 10 of this report?---Right. Yes.

PN1291

Mr Brennan, it's correct that this report's looking at mines in Western Australia. Is that correct?---Yes, that's their primary area of review one would suggest.

PN1292

And you'd agree, Mr Brennan, that the ventilation systems in the mines in Western Australia that are reviewed in this report are generally good ventilation systems, that keep the level of silica dust down?---I don't know what the ventilation systems are in Western Australia mining.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1293

But you've read ..... report, haven't you Mr Brennan?---Well - - -

PN1294

You've relied on the levels, the testing, performed in those places?---No, no. I only relied on this report for a comment that I made that there's only been one new case of a person on - on - on - on ..... that had contracted silicosis. That's the only reason I've relied on this report.

PN1295

From the testing performed in these mines. Is that correct?---No, I - well, I'm just going on the reports there. It was a comment - you meant the comment I made re the lady with the ..... in the ceramics factory. It was reported to me by
Geoff Sharp that that was the case, from the Dust and Diseases Board.

PN1296

We'll come to that Mr Brennan?---I did further investigation.

PN1297

Well, is it correct that you're relying on this report in respect of the one person dying as a result of the testing performed in this report?---I don't know what section that is.

PN1298

MS McKENZIE: I object to that question. Mr Brennan's not relying on the report. That's my job in submissions to put submissions based on the evidence. The report has simply been marked as an exhibit. It will become a bit clearer when we get to the submissions what reliance we will invite the Commission to make of the report but it's not Mr Brennan that relies on the report.

PN1299

MS CHARLSON: Commissioner, it's been referred to and Mr Brennan's given evidence about it. I'm merely asking Mr Brennan to please explain what he thinks the significance of this report is and to see whether he could be tested on whether that in fact is relevant to the case at hand?---As I said, the only - the only reason why this report interested me is because it showed, it said on page 8, that:

PN1300

Increased risk of lung cancer was only at the very high ...(reads)... cancer in those who do not have silicosis or have been employed since the advent of the point 2 exposure standard of 1996.

PN1301

That's the only reference that I made.

PN1302

Mr Brennan, I'll still take you to page 10 - - - ?---Yes.

PN1303

Because you have underlined and put crosses, or somebody has, alongside that section of the report and I think it is of significance as well?---Yes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1304

Mr Brennan, is it correct to say that the ventilation system in mines, particularly in Western Australia, is far superior to that which workers work in on the Thiess job at Epping to Chatswood?---I don't know. I've never done a comparison.

PN1305

You don't know?---No.

PN1306

I put it to you that that is the case. That in those mines in Western Australia the ventilation system draws the quartz silica dust out whereas in the case of the Thiess job it merely recirculates it through fans?---No, that's not the case, especially in respect of the TBM. It has it's own scrubbers and scrubs out dust through those scrubbers and then back through to the tunnel.

PN1307

Mr Brennan, what are scrubbers?---What is a scrubber?

PN1308

MS McKENZIE: If I can just assist, Ms Charlson, if it helps it. I will not be making any submissions that invite the Commission to have any regard or give any weight to what's on page 10 of that report. We will not be relying on the Western Australian experience, if that assists.

PN1309

MS CHARLSON: It assists somewhat, Commissioner, but I still am thinking that it's a useful point to make. That there are excellent ventilation systems available and that I'm asking Mr Brennan whether such a ventilation system has been installed by Thiess at this job.

PN1310

THE COMMISSIONER: He's already said he doesn't know what the Western Australian systems are and he was explaining the scrubbers on the TBM.

PN1311

MS CHARLSON: Mr Brennan, I'd again like to take you to comments made by Mr Dubois yesterday, paragraph 955 of the transcript. I asked Mr Dubois:

PN1312

What did you think should have happened at that meeting?---Well I believe that ...(reads)... come up with some solutions and put it to management.

PN1313

Mr Brennan, you've given evidence that you consider that the meeting was just a screaming match. Is that a correct summary of your evidence?---No, you've got your meetings mixed up. That wasn't a screaming match at that meeting at all. The screaming match I was referring to was the safety committee - sorry, the delegates and the safety meeting the previous - the previous - not this one - - -

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1314

Right, but you'd agree wouldn't you, Mr Brennan, that no satisfactory solution for both sides was reached at that meeting?---No, that's not the case. At this meeting with Rod Dubois?

PN1315

Yes?---No, no, that wasn't the case at all.

PN1316

It wasn't the case?---No.

PN1317

Unions are entirely happy with the result of that meeting?---No, no. No, the question was, was I satisfied there was an outcome. There was an outcome, but - - -

PN1318

No, that wasn't the question actually, Mr Brennan, the question was, was there a meeting satisfactory to all parties?---I would say - I would say well, you'd have to ask the unions. It was satisfactory to me.

PN1319

It was satisfactory to you?---Yes.

PN1320

Why's that?---Because Rod looked at all the things we're doing from the hierarchy trials, engineering design all the way down, including personal protective equipment. He saw that we weren't in a breach. Obviously there was no improvement notice - prohibition notices issued and then he suggested to the safety committee chairman and the employ - safety representative was there - to go back and talk further to their employees re the issues of dust and masks.

PN1321

Mr Brennan, you might recall that Mr Dubois said at paragraph 954 of the transcript, I asked him:

PN1322

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

PN1323

The reason for that was that he hoped, and I paraphrase and I'm happy to stand corrected if I paraphrase incorrectly, that the parties would be able to meet and ..... a solution suitable to all the parties?---Yes, that's what he - that's what he - he recommended if you like, and that's what we are doing. Yes, that's correct. I don't know how that's not satisfactory to him given he recommended it in the first place.

PN1324

Mr Brennan, when have the safety committees met in the last week?---When have they met. I don't know. I'd have to go back to the minutes. Are they - they are independent of the safety office. They have certain times when they meet and when they talk and you'd have to go back and have a look at the minutes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1325

Mr Brennan, I put it to you that members of the safety committees have been asking to have meetings convened and that the company has been holding off to see what the results of these proceedings are?---I don't know. I don't know anything about that.

PN1326

Mr Brennan, can I please take you to exhibit M11, and I think it must be M10 - what I'm after is the meeting minutes on 21 and 22 February?---I only have one here, and that's the one on 22 February.

PN1327

MS McKENZIE: I think the witness was given advice that you would identify them?

PN1328

THE WITNESS: Was I?

PN1329

MS McKENZIE: Yes.

PN1330

THE WITNESS: Sorry.

PN1331

MS CHARLSON: We do have a spare?---There's one more paper.

PN1332

Mr Brennan, is it correct that the persons represented, or the list of names, there represent the persons who attended that meeting?---Yes.

PN1333

And some of those people are safety committee representatives?---Yes, in both cases.

PN1334

Would you please read through on document M10, which goes to February, doesn't it?---Yes.

PN1335

Through those list of names you can tell us which of those people are representatives of the company's management and which are representatives of the company's employees?---Sure

PN1336

Give this slowly so I can make a note?---Sure. Christian Zemmells, management, myself, management; Thompson, management; Butler, management; Teraki, management; Shorewise is a graduate.

PN1337

What's a graduate?---Sorry, well, he's management, so put him down as management. Cunningham, I believe is a safety committee; Hendy; Oddmarelang is the chairman, I believe.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1338

Sorry, who was Hendy?---Hendy, is an employee.

PN1339

So, ..... as well?---Yes, I think she is, yes. Yes, all the rest are all safety committee members from that point down, if you like. From Bob Cunningham.

PN1340

..... Shiparelli, Compononi, Rosendale and Pennetti. They're all not members of the management?---My understanding is that they're all safety committee representatives, yes.

PN1341

Then if I could ask you to perform the same exercise in respect of form 11. It's done to a certain extent, but if you could just clarify it for me?---Yes.

PN1342

Which members are the management and which members are employee representatives?---..... Glen Asham from the top, project manager, stations.

PN1343

If you say manager or employees?---Okay, manager; Brennan, manager; Thompson, manager; Butler, manager; Grant Edwards, manager; Shorewise, manager; Daniel Elsmore, he's the chairman of the safety committee.

PN1344

Employee representative?---Employee; advisory manager; superintendent; manager; Desal Haines, chairman; again chairman of the safety committee; employee; Paul Knights, manager; ..... manager; Laylord, chairman; ripping site, employee; Mitzie, manager; F..... manager; G Baker's the chairman of Dela road safety committee; employee; Barnes and Salsberg is both employees.

PN1345

So Mr Solvisberg, a surveyor, is an employee, not a manager?---No, he's an employee. That's my understanding, yes.

PN1346

Well ..... but that's fine. Mr Brennan, would you agree that it's correct that safety committees should be equally composed of members of the management and representatives of the employees?---..... Yes, well, it depends on their constitution of what a quorum would be, but generally, that is the case, yes.

PN1347

And you prepared the constitution in respect of their safety committees?---No, they prepare their own constitution.

PN1348

So, you had no hand in it?---Oh, we have a draft constitution, we have procedures, which we give to them and they, over a period of weeks, rewrite the constitution to suit their own needs.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1349

And who prepared that draft?---I prepared the draft. It's a ..... document, if you like.

PN1350

So you're pretty familiar with it then, Mr Brennan?---Not that familiar, but I know it's there. It's got the main headings on it.

PN1351

Mr Brennan, does that document then, say that safety committees should be equally composed ..... Probably recommended that it says that.

PN1352

In this case, just let me do a quick count. Twelve members of the management and?---Six.

PN1353

I give you six employee representatives, would you say that that's an equal composition?---On 22nd?

PN1354

Yes?---So, what was the split, sorry?

PN1355

Twelve, six?---Twelve, six. Obviously not.

PN1356

Or thirteen, five. Twelve, six. Obviously not?---No, and on the other one of 21st, six, nine is probably not equal either. On balance.

PN1357

Mr Brennan, prior to commencing work on the site, I take it that the principal contractor, the company, drew core samples of the rock?---I don't know the technical details of that, sorry.

PN1358

Generally, would you agree, that core samples of the rock are analysed by the company, so that they can plan the occupational health and safety measures that are necessary?---I've had no interaction with geologists drilling core rocks, no.

PN1359

But you're the person - you've told us whose responsible for occupational health and safety?---That's correct.

PN1360

And you've also given evidence that rocks in the Sydney basin have a high level of quartz?---Correct, all Sydney sandstone has.

PN1361

So, you took no interest in testing the rock in this instance and seeing what the level of silica in fact was?---Well, I mean, if you just take a general line through Sydney sandstone, it could be up to 80 per cent. We don't have to go drilling rock to already know. Roughly, about 80 per cent. Depends on where you are.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1362

So, you don't know where the samples were in fact taken?---That's not my area and I don't know. No.

PN1363

Mr Brennan, you refer to a person, having their employment terminated for the sin of not wearing a paper mask?---Yes.

PN1364

Who were they?---Hang on. I didn't say a paper mask.

PN1365

You may not have said a paper mask. Mr Brennan, maybe we should just clarify this. Do you understand that this document is generally, in the industry, referred to as paper mask. This item?---It may do. I don't refer to it as a paper mask. I refer to it as a dust mask.

PN1366

Would you understand if I was talking about this document as a paper mask, would you know what I meant?---Because of the language being used in general, in the past. Yes, I probably would, yes.

PN1367

Then we can move on to the question. Who was sacked?---A supervisor. But he wasn't sacked for not wearing a dust mask.

PN1368

What was he sacked for?---He was put off because it was his third warning in the area of OHMS ..... he failed to manage - he failed to properly manage the place and the job, not for wearing a dust mask.

PN1369

Who was he?---He was a supervisor.

PN1370

What's his name - - - ?

PN1371

MS McKENZIE: I object to that. What's it relevant to?

PN1372

MS CHARLSON: Firstly, Commissioner, Ms McKenzie asked Mr Dwyer questions like this matter of which he didn't have any direct knowledge yesterday and she made the submission on the basis of the evidence that was put forward by Mr Dwyer and the company took safety - - - or she asked him questions, but I would submit it wasn't sufficient. The company took safety very seriously indeed because it immediately terminated somebody for failure to wear their mask. That submission was made. Those questions were asked. I'm now trying to elicit more information about whether in fact anyone was terminated, and if so, what for. Well, the only objection I put was to ask him what his name was. I just did.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1373

MS McKENZIE: How relevant is it to the line of questioning to know the name of the person who was sacked. That was the only basis of the objection.

PN1374

THE COMMISSIONER: Does it really matter who it was?

PN1375

MS CHARLTON: It does, Commissioner, because I'm told that in effect he wasn't sacked. So I'm just trying to work out exactly what happened.

PN1376

THE COMMISSIONER: I think we're all talking about the same person, but whether it's relevant to know his name is another question.

PN1377

MS CHARLTON: It is. It could only test the evidence that's been given that someone was in fact sacked. We do need to know who it was. I mean, in the abstract, the person was sacked, isn't of very much benefit to the Commission.

PN1378

THE COMMISSIONER: We're talking about the same person.

PN1379

MS CHARLTON: I can only believe so, Commissioner. I mean - - -

PN1380

THE COMMISSIONER: There's no question that there was more than one person sacked is there?

PN1381

MS CHARLTON: Well, I haven't heard of there being more than one person. One person was referred to by Ms McKenzie in questioning yesterday.

PN1382

THE COMMISSIONER: Okay. We'll all talk about the same person. Let's move on.

PN1383

MS CHARLTON: I don't know of any names, whatsoever.

PN1384

THE COMMISSIONER: No, okay. Well, let's not worry about his name. Let's talk about this person.

PN1385

MS CHARLTON: Well, has someone been sacked?---Yes, someone's been given their marching orders. They have the month to work out then they have to quit the project.

PN1386

So, he's still there?---He's been given his orders that he's to finish up his work at the end of this month.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1387

So is he wearing his mask now?---Absolutely.

PN1388

Mr Brennan, is this the person whose worked with Thiess for 34 years?---I don't know how long he has been with the company, I'm sorry.

PN1389

A lengthy period of time?---I don't know how long he's been with the company, I said.

PN1390

Mr Brennan, you've talked about the dust bust being called, when did that happen?---That happened last year, the lung bust.

PN1391

When?---I haven't got the date. October, before October, somewhere around then, I'm not too sure. I'll have to check it.

PN1392

That's just happened the once?---No, it's happened on a number of occasions.

PN1393

When else has it happened?---Well, it happened at Mac university when we had ..... twice, three times at that university. I'd have to go back and check the exact dates. We've had the dust and diseases - one bus at the m2 site pipe there as well.

PN1394

And Mr Brennan, you told us this matter was before the Commission last year?
---It was before the Commission?

PN1395

Well, the issue of testing?---The THJV agreed to do the testing.

PN1396

As a result of procedures in the Commission?---It came out of that Commission. Yes, I can't precisely say how it came out but I know that was part of that process.

PN1397

Mr Brennan, you'd agree, that it a company's obligation under the OHS Act and the regulations to regularly test employees who are exposed to hazardous substances?---Correct.

PN1398

Mr Brennan can you undertake that every employees working for Thiess on site has now been tested?---To the best of my knowledge, that's correct.

PN1399

To the best of your knowledge?---Correct

PN1400

So those tests are taking place regularly?---Well, the Act doesn't actually define, or the regulations sorry, which calls it up doesn't actually define what is regular, but it says when persons are exposed you must do testing and given that we do x-rays when everybody joined the company, now we do spirometry when everybody joins the company, that is part of that whole process and we have had the lung bus there for as I said those periods of time.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1401

Mr Brennan is it correct that on the meeting with the work comp inspector last Friday, that some employees raised their concerns about the masks being ineffective if they had a beard or any kind of facial hair, is that correct?
---There could have, yes.

PN1402

You don't recall that?---On last Friday's meeting? It may have been said I just can't recall specifically what was said during the hour and half of that meeting, but it could have been raised, yes.

PN1403

It was on the main issue, wasn't it?---I don't think it was the main issue otherwise I would have remembered - - -

PN1404

I put it that it was a pretty significant issue, if for some of the work force this device is ineffective and this is the only protection that the company is providing to employees working in a dangerous environment, I put it to you that it's a pretty major issue?---I'd say it would be, but I'm just saying you asked me the question about what was raised in that meeting last week and I'm telling you, I don't believe that was a major issue being raised.

PN1405

Well I'm asking you to try and test your memory about that?---I've done that and I still can't recall that that was a major issue discussed at that meeting with Rod Dubois. There was a lot of issues raised. That wasn't the principle of all issues.

PN1406

I put it to you that it's inconsistent for this to be an important issue and for you not to remember it?---Of beards?

PN1407

Yes?---No, as I said I don't recall that being a major issue of that particular meeting, no. I'll stretch my imagination on that one as well.

PN1408

Mr Brennan. I put it to you that when that issue was raised what you said in response was that if the mask doesn't fit someone then they can come and see me about it?---I could have, yes. I don't know.

PN1409

You might have said that? You'd said that that's an appropriate response for the company to be providing people with masks that fit and it's been put to the company that these masks are useless for people with beards, that they don't fit some faces, there are various other difficulties. The response is not to provide masks that are suitable for those persons, but to say well "they can come and see me"?---Come and see me in respect - or come and see the safe department in respect of what the issues are in wearing a dust mask. I think that's only fair and reasonable to listen to a person's grievance about what wearing a dust mask is, but I can't remember saying that, but if I did then fine.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1410

Mr Brennan, have you read the statement that was put on by Mr Anthony Dukes in these proceedings. Have you read that statement?---No.

PN1411

Sorry Commissioner, I just need to find that statement- I've got it, thank you.

PN1412

Mr Brennan have you read that statement?---No.

PN1413

You haven't read the statement?---Sorry this is the first statement- - -

PN1414

This is his first statement?---Yes I've seen that before we came last time, very quickly yes. I can't remember exactly what he said.

PN1415

And you were here while Mr Dukes gave evidence about this statement?---Yes.

PN1416

Okay. Mr Brennan, I don't have a spare copy to provide you of this but I'll read you the relevant section, paragraph 16, sub section (f):

PN1417

THJV also offered to employees the services of a ventilation design engineer to review the ventilation system design to identify effective control measures

PN1418

Is that correct?---Yes that's what it says.

PN1419

So where is it happening?---I don't know, you'd have to ask the person who is commissioning which is Ricker.

PN1420

So that's out of your domain, that's out of your jurisdiction?---No Ricker is in control of the TVM and the work place and Ricker manages those types of processes. He's the appropriate person to manage that.

PN1421

Would you say this is an issue that doesn't impact directly on safety?---I'd say at the end of the day whatever report do, it may impact on safety and I'll look forward to whatever report he produces.

PN1422

And you've given evidence extensively on these masks and other measures being taken by the company?---Mm mm.

PN1423

When is this measure happening?---I don't know, I'll have to ask Ricker but I've got no doubt that he's organised it and it's under way.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1424

Is it happening?---I don't know. I'll have to check with Ricker. It's a question for Ricker.

PN1425

When that measure is taken, will these masks be required?---That's what the report says.

PN1426

So if you see that if the company had better ventilation in the tunnel that these sorts of devices which we've all agreed are devices of last resort, and we haven't all agreed, but we say are vastly impracticable, wouldn't be required?---I can't really answer that, if we had better ventilation, what is better ventilation? We believe we have state of the art ventilation on the TVN but if there's no other thing out there on the planet that can better what's gone on the TVN, I think we've got a bit of a problem, but we are endeavouring to have a look how we can improve what we've got, state of the art what we have.

PN1427

Mr Brennan, if you've already got the best ventilation on the planet, what's the point of that part F, why is it there? Why would you bother getting someone else in to look at it if it's already perfect?---It's not the ventilation system as a whole, it's part of the ventilation system, this is why this man's reviewing I believe the ventilation system. Parts of this could be improved.

PN1428

So it's not the best on the planet?---I've been told it's state of the art, so, all I can say is what I've been told. I'm not the expert in ventilation.

PN1429

Mr Brennan, you've given evidence that you've known about the changing standards since before the end of last year, the change in the NOHSC Standard?
---December.

PN1430

December, last year?---Yes

PN1431

And yet a meeting with the safety committees wasn't called until February, that right?---That's correct.

PN1432

Why is that?---Because we didn't know what the standards were underground.

PN1433

You know what the standard is, you might not know what the test results were but you knew what the standard is, didn't you?---Correct.

PN1434

Mr Brennan, it's correct that in approximately June last year you became aware that the then Australian standard or the then NOHSC standard in respect of silica dust was being exceeded, didn't you?---In June last year, how would I, what report?

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1435

Well you haven't given us the reports?---No, so- - -

PN1436

But I'm asking you is it correct that as of approximately June last year you were aware that standards were being exceeded?---What made me aware of what report?

PN1437

No that's not the question, were you aware of it?---No I wasn't, no.

PN1438

You weren't aware?---I was aware we were meeting the standards last year.

PN1439

You believed that you were meeting the standards throughout the whole of last year?---Throughout the whole of last year? I'd have to go back to the individual reports and have a look at the new environment reports individually and break them up.

PN1440

Mr Brennan, are you telling me that if the reports came back and said you were exceeding the standards you wouldn't remember that?---I know generally we met all standards in point 2, we were in compliance of point 2 but if there was any high or peak lows I'd have to look at the individual operations, if that's what you're getting to, if I had a guy on a jack hammer with a dose meter and he registers high, of course you have a breach of point 2.

PN1441

Well I put it to you- - -?---I don't know, I'd have to go and have a look .

PN1442

I put it to you that the standards were being exceeded and you were aware of that throughout last year?---No I wasn't.

PN1443

And that's the standards as they were, not the new standards?---No I wasn't.

PN1444

Mr Brennan, do you wear spectacles, or safety goggles down in the tunnel?---No

PN1445

You don't. Are you aware that some employees do?---Yes.

PN1446

Are you aware that when employees are breathing into this kind of a mask those safety goggles or glasses can fog up?---No, I'm not because I don't wear them, but that's been reported.

PN1447

Was that complained about by employees at the Friday meeting and prior to
that?---I can't recall that.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1448

Mr Brennan do you believe that that could constitute a safety hazard if employees can't see properly in the tunnel when they're working?---To me it means they haven't properly fitted the dust mask.

PN1449

So you're telling me that the dust mask will only create their fogging up in the glasses if they're incorrectly fitted?---As far as I'm concerned, yes.

PN1450

As far as you're concerned, or as far as you know?---As far as I know.

PN1451

Mr Brennan, if I can just take you again to Mr Duke's first statement. I'll read you the relevant section, paragraph 15:

PN1452

During the course of the stop work meeting representatives of the unions made the following demands

PN1453

And we'll skip down to (d):

PN1454

Trading by the PCE dust mask manufacturer for all employees

PN1455

Has that happened?---That's been arranged.

PN1456

It's been arranged, has it happened?---I'm not too sure, I'll have to go and check that. I've been here for, and so I don't know what's going on at the moment.

PN1457

So why did that not happen before the employees were required to wear the mask?---I don't know.

PN1458

Don't know?---I know that the tool box has happened and in certain cases
Geoff Buttler was there and attempted to show people how to wear dust masks. There was a requirement for a full training session from the supplier and we've been in the process of doing that.

PN1459

I've believe you've already got a copy of this document, Mr Brennan, "The Mask and Other Repiratory Protection" fact sheet. I would ask you to turn to page 4 of that?---I'm sorry, which one was that again?

PN1460

It's been marked as SC5 and it's called "Masks and Other Respiratory Protection"---This is from the Workers' Health Centre?

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1461

That's right?---Yes.

PN1462

Thank you. Could you please turn to the top of page 4?---Yes.

PN1463

I'll just read some of that to you, if I may:

PN1464

There is no purpose in wearing a respirator if it doesn't fit or if it's worn incorrectly. Faces are different shapes and sizes and respirators come in a variety of brands and sizes. When a respirator is being collected for a workplace, workers should insist that a range of brands and types are available to choose from and that everyone undergoes a facial fit test.

PN1465

?---Yes.

PN1466

MS CHARLSON:

PN1467

Correct fit and comfort are just as important as technical effectiveness. Once a mask which seems appropriate for the individual and task has been selected, the wearer must be shown how to fit it. Seals must be inspected and the rubber must be in good condition.

PN1468

We know that that sort of mask hasn't been provided here. There's another section which isn't really relevant, given that it's only paper masks that have been provided:

PN1469

Correct fit of a mask requires contact with smooth skin. This makes masks unsuitable for men with beards or moustaches. Even a 1-day growth of beard has been shown to allow nearly 1 per cent penetration of a full face piece. This is unacceptable for very toxic or carcinogenic substances. Small beards or moustaches which fit inside a face piece are also unacceptable as they may cause an exhalation of valve to fail if a hair lodges in it.

PN1470

Is there any part of that, that you don't agree with?---I'm not aware of - of that last paragraph you read. It's the first time I've seen that, but who the author was, I don't know, but as it reads there, it's as it reads.

PN1471

You'd agree that it's necessary to train people in how to wear the masks?---Yes.

PN1472

Or they may well not be worn correctly?---Yes, we're training people, yes. I agree.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1473

If you go down to the paragraph on "Training"?---Yes.

PN1474

Could I ask you to please read the first two sentences there?---

PN1475

The first step in training is a full explanation of the types of hazards to be encountered, an explanation of the type of respirator and the reason why it was selected. Next, all wearers should be shown how the respirator works, what it can do, its limitations and how to maintain it.

PN1476

Has it - - - ?---I'd have to go and check. I'm not too sure at the moment. As I said, I've been tied up here. I know we have a trainer from 3M. We have also purchased a facial fit test kit which I signed off on the price of that, $500, and that's there and we - so whether it's been done or just about to be done, or hasn't been done, at this precise moment, I don't know. I'd have to check.

PN1477

Mr Brennan, how many kinds of masks are available to employees?---As far as I know, there are these type of masks, the 3M ones. We have the canister mask, which I believe over 40 of the station persons have taken up for use. Outside of that, I'm not too sure.

PN1478

Mr Brennan, are you concerned that if employees haven't been shown how to wear these masks, they're not wearing them correctly?---Well, given that - given that people have been wearing masks in the industry for quite a long time, competent workers, which they may have been fitting them incorrectly, so it's probably - it's worthwhile doing the training all over again.

PN1479

But this is a new requirement for most of these men, isn't it?---Beg yours?

PN1480

It's a new requirement on behalf of Thiess, the first of these particular men - - - ?
---No, I wouldn't say so. I'd say a lot of those men there - - -

PN1481

- - - to wear these masks?--- - - - we're taking about have been wearing - - - worn masks in the past.

PN1482

And they have been already trained by Thiess, then, if they were already wearing masks?---I don't know, they - - -

PN1483

Or worn them in the past?---I don't know. I haven't got that information.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1484

Mr Brennan, you referred to some comments made to you by one Geoff Sharp?
---Yes.

PN1485

You said words to the effect that he told you that only one person had died in the last 10 years, is that correct?---Yes. That was his statement to me. No, his statement was - to me was there is only one person who's contract - contacted - contracted similar cases in the last 10 years. He said that person was a lady that was working on a - grinding out dags on ceramic bowl. He actually said that same - same words to toolbox meetings when he conducted it for our employees.

PN1486

So when you quoted him, you were repeating his comment that silicosis is not a serious risk? Is that what you believe?---No, I wasn't saying that at all. Silicosis is a serious risk.

PN1487

I put it to you that there's no other reason that you would make that comment except to downgrade the risk that the employees are experiencing?---No. No. I mean, I was taking the line through Geoff Sharp who went to extensive - extensive lengths to tell everybody there'd been a major decline in silicosis, or new cases of silicosis, to the existing standards. He went and did toolbox meetings throughout the site telling everybody that. Not only me. He told all employees that. We had toolbox meetings right across the board, at which Geoff said the same.

PN1488

Mr Brennan, you'd agree with me that union representatives have raised with management the issue of the company's capacity to meet the new NOHSC standard? You'd agree that that's been put to the company as issue of concern?
---They have raised that concern, yes.

PN1489

Yes, and is it the case that Mr Dixon and other union officials were told by the THJV that the THJV would find it difficult to comply with the standard?---I remember that being said, yes.

PN1490

Who said that?---Jeff Butler.

PN1491

Jeff Butler? He said that at a meeting on 3 March 2005?---I can't remember that - probably that meeting, yes. That was the meeting of the Wednesday, yes.

PN1492

Mr Brennan, you'd agree that the disagreement between the unions on this occasion, the employees and the company, is about the issue of dust exposure and exposure to silica?---I mean, Mr Butler's comments was in relation to controlling the contamination within the air. It was relation to Mr Butler's comments - - -

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1493

Sorry, I think we have moved on. I think - - - ?---Sorry, sorry.

PN1494

Sorry - - - ?---I thought it was all part of the same sort of question.

PN1495

No, no, no. No, no. It's a new question. You'd agree that the disagreement between the unions and the employees and the company at present is in relation to the concerns about dust exposure and exposure to silica?---Correct.

PN1496

You agree with that?---Yes.

PN1497

When this issue was raised last Thursday, did the company then convene the safety committees to look into it?---When the issue was raised last Thursday?

PN1498

Yes, at the meeting that was held last Thursday?---It had been raised well before that.

PN1499

Yes, I know it was raised before that, but it was raised again on the Thursday?
---With - by the unions?

PN1500

By the unions and safety committee reps and delegates; did the company then, as a response to that, convene the safety committees?---No, we didn't. We had already done that.

PN1501

When had that been done?---On 21 or 22 February.

PN1502

And when had the union complained about this issue to you?---Well, I mean, I don't know, I can't precisely tell you when they complained to me.

PN1503

So the safety committees met on the 21st and 22nd?---Mm mm.

PN1504

I take it no resolution was reached, when the safety committees met - - - ?---Sorry, there was a resolution reached on the 21st and 22nd. It's minuted as a resolution for - - -

PN1505

Well, perhaps - - - ?--- - - - all in attendance - - -

PN1506

- - - in the technical sense of resolution, but I mean in the broader sense, the sense of resolution that everyone's happy, we're all sorted out, we can move on with life and forget about it?---No, that wasn't the resolution at all. The resolution was the safety committees go back and start informing people through toolboxes and working towards our fifth control - - -

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1507

No, Mr Brennan, I think - - -

PN1508

MS MCKENZIE: Can he please finish giving his answer? Let him finish.

PN1509

MS CHARLSON: Well, he's twice not answered the question I have asked, but certainly I am prepared to listen to what he has to say, even if it has nothing to do with what he has been asked.

PN1510

THE WITNESS: I'm sorry, I thought it was. I'm not trying to deviate you into other areas, but we had a meeting with the safety committees on the 21st and the - and it was resolutions that came out of that, that we have been working towards.

PN1511

MS CHARLSON: But, Mr Brennan, the matter hasn't been solved, has it? I will use a clearer word?---If the matter - - -

PN1512

The problem hasn't been solved?---Well, the matter is - well, I mean, it's solved in relation to wearing dust masks, people need to wear dust marks, which - they're protected - - -

PN1513

Yes, but even - - - ?--- - - - but there's a whole range of other issues that we're working towards.

PN1514

Even though, Mr Brennan, people have told you this is not going to work, this is not an acceptable solution?---Individuals have said that. Well, I believe it is, that it is an acceptable solution, given the current climate, and it is part of our overall - - -

PN1515

Given the current climate, did you say, Mr Brennan?---Yes, and given the whole overall - - -

PN1516

Even in a 31 degree climate?

PN1517

THE COMMISSIONER: Sorry, Ms Charlson, please let him answer the question.

PN1518

THE WITNESS: The word "climate" is not related to the climate in the tunnel, just the general atmosphere, the climate. I'm sorry, I didn't know I had to be so precise with my words, but the overall use of the dust masks is the fifth measure of control of our hierarchy of controls which was endorsed with the safety committees in both the 21 and 22 February - and since those days, we have been moving to implement all of those things that we said we were going to do. Which is - - -

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1519

MS CHARLSON: But you'd agree, Mr Brennan, that the company's obligation under the EBA is to convene the safety committees when a safety issue is raised?
---Which we did, on the 21st and 22nd.

PN1520

But they haven't met since, have they, Mr Brennan?---In relation to what?

PN1521

In relation to the issue which is still current and unresolved, in the sense of resolution being - - - ?---If the safety - well, I don't know. I mean, I'm not in charge of the safety committees. We brought the safety committees together as a whole because this issue required - right across the project. My understanding was the safety committees have been moving forward, especially the chairman. No two chairmen, Mike Maher or Des, have come to me saying they need to reconvene the whole of the safety committees again. Those two gentlemen, both gentlemen in charge of safety committees, have been moving forward. I have had no direct complaints from them. Whether this happened on the individual sites with those committees, I cannot say.

PN1522

Are those two gentlemen here today?---No.

PN1523

Do you recall a letter that was written to the company yesterday asking in particular that Mr Lang be permitted to attend today?---I have seen that, yes.

PN1524

And Mr Lang wasn't permitted to attend today, was he?---I don't know for this case. My understanding was Mr Lang was asked. That's all I know. Why Mr Lang refused to come, I'm not too sure. You'll have to address that with Mr Lang.

PN1525

So is it the case that Mr Lang refused to come, then?---Well, that's what I'm just - no, I - refused to come? No, Mr Lang was doing last night's shift, it was nightshift, I believe. I don't know what his personal reasons were for not coming. I can't speak on behalf of Mr Lang.

PN1526

But you'd agree that the union had requested that he be permitted to attend?---If he was on that list, that they put forward.

PN1527

He was on that list?---Then I would agree he was asked to attend.

PN1528

Mr Brennan, you'd agree that clause - and I will ask you to turn to the EBA, I don't know if you have a copy of it there?---No, I haven't.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1529

I will have to get mine as well. I don't know that I have a spare, but I can read you the relevant sections if need be. Sorry, Commissioner.

PN1530

THE COMMISSIONER: Yes.

PN1531

MS CHARLSON: We have a very convenient copy for you. Probably annotated. Mr Brennan, I'd ask you to turn to clause 18.5 of the EBA?---Yes.

PN1532

Could you please read part B of that clause?---

PN1533

The role of the safety committee is established under the OH&S Act. The parties accept that the OH&S committee is a consulting body charged with assisting the outcome of a safe workplace.

PN1534

Is that also your understanding of the state of affairs, Mr Brennan?---Of the state of affairs?

PN1535

Yes. Do you believe that the OHS committees are the bodies which are charged with the outcome of a safe workplace?---Yes, they're a part of - they're assisting with the outcome of a safe workplace, which I believe the words there, is charged with the assisting the outcome of a safe workplace.

PN1536

So is it also correct, Mr Brennan, that on being informed of employees' complaints about safety, what the OHS committee should do is be convened by the company and inspect the area that they're complaining about?---If a problem exists, yes. They can do that.

PN1537

Did that happen? Was there an inspection?---There was no problem. There was no problem as such.

PN1538

There is no problem? We can all go home?---Yes - - - if a problem does exist, that's what happens. There was no problem, there was no safety problem raised. We called the committees.

PN1539

As you're obliged to do under the EBA?---Sorry?

PN1540

In accordance with your obligations under the EBA?---Well, more so under the Occupational Health & Safety Act, we're consulting with committees.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1541

Well, Mr Brennan, was there any deliberation by the committees about the approach that the company should take to deal with these issues?---It was - on the 21st and 22nd meetings we open to - for general comment and discussion about the issues that we were facing through those reports, yes. Both those - both - all committees and committee individuals had the right of say and input. They'd have to.

PN1542

But, Mr Brennan, you'd agree that on the second occasion we had a group of 12 people from the management attending and six employees attending?---Mm mm.

PN1543

No, you don't agree with that?---Yes, yes, I agree, yes. That's on the list, but - - -

PN1544

All right. Mr Brennan, is it the case that under the terms of the EBA, workers are entitled to cease work immediately if they're affected by a reasonable concern of an imminent risk to their safety?---Well, it says here:

PN1545

Work shall cease in areas immediately affected by reasonable concern as to the existence of an imminent risk to health and safety.

PN1546

That's correct.

PN1547

So you would agree that workers have the right to stop work if there's an imminent risk to their safety?---If there's imminent risk, yes.

PN1548

Do you think silica dust which can cause silicosis and people can die or - - - ?
---Yes.

PN1549

Could constitute an imminent risk to safety?---Yes, if not properly controlled, yes.

PN1550

Would you agree that employees might well be concerned that this device is not sufficient to be described as you have described it, as a proper control?---If they're concerned, then they're - go through the education process, that's correct, because as far as I'm concerned, that is an appropriate control.

PN1551

Or they can be told that they're not uncomfortable, they're not unsafe, it's all fine, go back to work?---Well, I don't think anybody's told them that, I'm sorry.

PN1552

Mr Brennan, it's correct that the tunnellers who were working below ground have silica dust around them at all times, isn't it?---I don't know about all times, but there is silica dust down there, yes. As soon as you do anything to Sydney sandstone, you create silica dust.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1553

So there is a safety procedure set out in the EBA, isn't there?---Yours? Yes, there's a safety procedure here. Yes, 18.5.

PN1554

See that? And one of the provisions of that procedure is that employees are not allowed to leave the project unless directed to do so, due to a safety risk, is that right?---

PN1555

No person is required to work in an unsafe area, situation that's deemed -

PN1556

which clause are you referring to?

PN1557

No, I don't have my - - - ?---I'm sorry.

PN1558

- - - hand on the clause itself?---I just want to be specific in the wording.

PN1559

Here it is?---There was (1)(g) first point:

PN1560

Employees shall not leave the project site unless directed to do so.

PN1561

That one?

PN1562

That's the one, yes?---Yes, first dot point?

PN1563

That's what it says, isn't it? And that didn't happen, did it?---Beg yours?

PN1564

That hasn't happened? Employees haven't left the site due to a risk to their safety without being directed to do so?---I'm sorry, I'm not following you. Employees are not being required to leave the site or leave the project unless directed to do so. What - what's - - -

PN1565

My point merely is that that's what it says they're not allowed to do; they didn't do it, did they?---In relation to a safety dispute? What safety dispute, though? This is - this here, should a safety dispute arise - - -

PN1566

This safety dispute, Mr Brennan?---Yes. The safety dispute in relation to the committees. We don't have a dispute in relation to committees. I don't have a dispute in relation to the committees. I'm not aware of a safety dispute with the safety committees. There was no dispute as at the 21st and 22nd, so to me, this doesn't apply. That's what it says:

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1567

Should a safety dispute arise over whether a worker is safe or not, the parties agree the following procedures should apply.

PN1568

I have no dispute with the safety committees. I'm not aware of a dispute.

PN1569

Mr Brennan, clause 18.5 says "Safety Procedures"?---That's correct.

PN1570

Safety procedure:

PN1571

The parties to this agreement agree to do all things practicable to maintain site and safety -

PN1572

It goes on to specify what those things are?---Yes.

PN1573

Should a safety dispute arise over whether one or more work areas are safe or not or not, the parties agree the following procedures should apply.

PN1574

?---I don't know where it says that it has to be a dispute with the safety committees in order for this clause to come into effect?---I don't know I've - I've got a dispute here. I mean, I've got 150 men underground currently at the moment wearing - wearing masks. I've had shot crews wearing masks for a year and a half. I have people doing rock hammering wearing masks. I don't know I've actually got a dispute with anybody at the moment, other than this particular crowd.

PN1575

Mr Brennan, I put it to you that we are in dispute and we are in dispute over a matter of safety?---Well, I put it to you we're not in dispute over safety and this is an industrial relations matter over hours of work.

PN1576

Okay, Mr Brennan. Well, assume just for the moment, for argument's sake, that we can agree that a safety dispute's taking place. Would you agree that the obligation of the employees under that clause, in the event of such a safety dispute, is not to leave the site unless directed to do so?---That's what it says.

PN1577

MS MCKENZIE: Well, I object to that question. I think Mr Brennan probably - I don't know if there's a problem with the EBA but perhaps he ought to be - his attention should be drawn to - in any event, the interpretation of the agreement is not really - not that it's not a matter for the witness, it's not ultimately helpful to the Commission what a particular witness might think about the interpretation of the EBA. It means what it says and that's up to the Commission to determine. The EBA talks about where work areas are safe or not. It doesn't talk about whether there is a dispute.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1578

MS CHARLSON: Commissioner, the same argument came up on the last occasion where someone else was representing the company. I made the same argument then that I make now, that one of the arguments the company is putting forward is that the union has failed to meet the terms of the EBA. What we are testing is whether in fact the company has also, arguably, failed to meet its obligations under the procedures set out in the EBA. While none of the witnesses may be experts as to legal interpretation or interpretation of enterprise bargaining agreements, I still consider that this is a matter that's relevant to put to the witness.

PN1579

THE COMMISSIONER: Carry on. I should foreshadow I will adjourn fairly soon, but it would be nice if the witness would be finished. How long do you think you'll need with Mr Brennan?

PN1580

MS CHARLSON: Commissioner, it's hard to say. I have a number of other questions to ask him. I'd say probably after the luncheon adjournment.

PN1581

THE COMMISSIONER: Well, ask your question now and then we'll adjourn.

PN1582

MS CHARLSON: Mr Brennan, we were looking at the safety procedures set out in the EBA and that's at 15. I believe you understand which section it is, sorry, 18.5(g). We're looking at that section there?---Yes.

PN1583

Do you concede that employees have not left the site due to the safety dispute without being directed to do so?---I'm still at a loss as to what safety dispute.

PN1584

Well, Mr Brennan, we've agreed that we can't agree about what safety dispute. We say there is, you apparently say that there isn't, but if there was a safety dispute, if what we're here about today is in fact or was in fact could conceivably be described as a safety dispute, would we then have breached that section?---So, we're using a hypothetical, to say in this case that - sorry, I still don't follow your line of thought.

PN1585

Mr Brennan, I put to you it's very simple?---Is it? Sorry, I just can't - I can't gather in what you're telling me, asking me.

PN1586

The issue is a safety dispute?---Sorry?

PN1587

We have been describing this as a safety dispute. You might not agree - - - ?
---You are, yes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1588

- - - but for the moment just assume that it is a safety dispute. In the event that what we're talking about was a safety dispute, did employees leave the site without being directed to do so?

PN1589

MS MCKENZIE: Well, I object to the question. This is the problem. Subclause (g) says:

PN1590

Should a safety dispute arise, over whether one or more work areas are safe -

PN1591

That's the only dispute that (g) is directed to, so it's quite a misleading line of questioning to ask if there's a dispute, should employees leave the site? It's not what the clause says. It's a dispute over whether one or more work areas are safe. He could be asked if a work area - - -

PN1592

MS CARLSON: Commissioner, I am happy to rephrase the question.

PN1593

THE COMMISSIONER: Yes, please rephrase.

PN1594

MS CHARLSON: Okay. The question is, assuming that what we have been discussing here today and what has been happening over the last few weeks is a safety dispute, whether or not you might disagree with that - - - ?---Yes.

PN1595

- - - is it the case that employees failed to leave the site without being directed to do so?---No.

PN1596

No?---They failed to leave the site? What is the - can I - - -

PN1597

The question, did they - - - ?---Can I - can I ask what the project site is?

PN1598

Well, Mr Brennan, it's your EBA.

PN1599

THE COMMISSIONER: Please - - -

PN1600

THE WITNESS: It's not my EBA, but can I just clarify what "project site" is?

PN1601

THE COMMISSIONER: Ms Charlson, your rephrasing of the question was really as confusing as the first one.

PN1602

MS CHARLSON: Okay. I'll try again.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1603

The question is, take it that this is a safety dispute?---Yes.

PN1604

Okay, and what we have been talking has been a safety dispute. Is it the case that employees have left the project site without being directed to do so?---I hope - I mean, to me a project site is where the problem is. It's not the project as a - as a whole.

PN1605

It could be in the definitions?---What is the project site? Is it a particular area where there is a risk, or is it the project as a whole?

PN1606

It's defined, Mr Brennan, at 4(c) of the EBA. It means the work sites on a project, being the site specified in clause 5.1 of this Agreement, and then we can turn to clause 5.1 which I conveniently don't have, but you might be able to assist me?
---It says - - -

PN1607

Actually, no, I do. I do, I do. Then there's a long list of all the sites that are included?---Correct. So yes, it was our list of sites. There's a whole heap of sites.

PN1608

Yes?---So it's saying that there's all individual sites, and it goes through the whole of the project on a lot of major sites. So if you have a particular issue in one site, in one of those - does it include TBMs? Station rail access, stations, Lane Cove - - -

PN1609

Commissioner, I am happy to put the question one more time.

PN1610

THE COMMISSIONER: In a different form?

PN1611

MS CHARLSON: If necessary. It's the same question. The question is, did they leave the site without being directed to do so?---Hypothetical, I don't know. I still can't - sorry, Commissioner, I still can't answer this. I'm just totally confused about the hypothetical and people leaving sites. I don't - - -

PN1612

Well, Commissioner, I would put it that the question is very simple. The witness is being unresponsive, we may as well just leave that question and go to lunch.

PN1613

THE COMMISSIONER: I will adjourn until 2 pm.

<LUNCHEON ADJOURNMENT [1.03PM]
<RESUMED [2.05PM]

PN1614

MS CHARLSON: Mr Brennan, one of the incidents you referred to when you were speaking with Ms McKenzie was an incident involving Mr Whitehead of the union?---Yes.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1615

Do you recall that incident?---Yes.

PN1616

That was earlier this year, wasn't it?---I can't remember the exact date, but it was this year, yes.

PN1617

You recall that you said that Mr Whitehead came along and saw that people had no full protection?---They had full protection, but they weren't using it, that's correct.

PN1618

And that you instructed them to use it from now?---I instructed them after Mr Whitehead told me. I went down and then stopped the work and I called up toolbox to use the equipment provided, that's correct.

PN1619

You forgot to mention, didn't you, that the day before that, there was a very serious accident on the site, wasn't there?---No, there wasn't, no.

PN1620

There wasn't a serious accident on the site?---Very serious accident, you framed those words.

PN1621

Well, there was an accident involving two ambulances coming, one of them a paramedic unit?---That's correct.

PN1622

When Mr Whitehead arrived at the site, the same supervisor as had been there the day before was instructing workers to perform work with no full protection?---No, that's incorrect.

PN1623

It's incorrect?---That's incorrect.

PN1624

So it isn't the case - - - ?---My supervisor - - -

PN1625

Isn't it the case that it was the same supervisor?---No, that's incorrect.

PN1626

It was a different supervisor?---A different supervisor.

PN1627

But it was nevertheless the case the day after a serious accident, people were working in the same area with no full protection?---No, it wasn't the same area, it was another area and they had full protection, but weren't wearing full protection.

PN1628

In the same copper dam?---In the same copper dam.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1629

In the same copper dam?---Yes. It's a very large copper dam.

PN1630

And that the accident involved a person falling and being trapped unconscious before they were taken to hospital?---Absolutely not. Trapped unconscious? No. A person fell from the same level, fell on his bum, hit is tailbone and then slid down a 45-degree ramp over about a metre and a half, come to a complete stop, slightly lost consciousness and then we called the ambulance. The same guy was back at work the next day, so I don't know how that's a very serious accident, by the way.

PN1631

Mr Brennan, I put it to you that being - - - ?---The cause of which - - -

PN1632

- - - slightly unconscious is a bit like being slightly pregnant?---I don't know. He was slightly unconscious. He lost consciousness, then came back around again, so I mean, you have to ask him.

PN1633

Mr Brennan, one of the other things that you said to Ms McKenzie was that none of your workers had been so far detected as having silicosis?---According to the Dust Diseases Board and our doctors, we have no reports, that's correct.

PN1634

It is correct, isn't it, that it's very difficult to detect silicosis in the early stages?
---I'm not too sure. I'm not a doctor. I'm only going on the advice of what the professionals tell me.

PN1635

So when you said that no one had been detected yet - - - ?---We've had no reports that anyone - - -

PN1636

- - - you omitted to mention that it's unlikely that anyone who had contracted it would test positive at this stage?---Well, I would imagine that a person that's been in the industry for 30 years, and we do have people on your job in tunnelling, would show some sign of silicosis. They don't. If they were new starters to our industry, I would agree with your comments.

PN1637

Well, I don't want to argue with you, Mr Brennan, let's move on to the next issue. The next issue is in relation to water, which we also discussed earlier?---Yes.

PN1638

Is it the case that it's a requirement, when drilling, that water be used?---We discussed this before. I mean, as I said, what drilling process are we talking about? Various drilling processes use different types of operations.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1639

Drilling roof bolts?---They use different types of operations. Some are dry, some are wet, some are whatever. I'm not too sure. As I said, I'm not the expert in drilling.

PN1640

Is water used in this tunnel?---Is water used in the tunnel? Yes, water's used in the tunnel.

PN1641

For drilling roof bolts?---I don't know. It depends on what roof bolts on the TBMs, I'm not too - quite sure.

PN1642

Okay. Mr Brennan, we were talking before the break about the EBA procedure in relation to safety?---Yes.

PN1643

Can I ask you whether an inspection was carried out after the Thursday meeting where these issues were put to you by the union, when the company inspected the areas of concern?---Not to my knowledge, no.

PN1644

What the company did, is it not, is advise the workers that the planned meeting to discuss these issues was unauthorised?---Is the what, sorry?

PN1645

The planned meeting for the following day to discuss the meetings - the meeting on the Thursday morning?---Yes.

PN1646

You instructed the workers that that meeting was unauthorised?---I didn't, no. I didn't do such a thing.

PN1647

The company did?---I don't know what the company did.

PN1648

Mr Brennan, do you - - - ?---That's an industrial relations matter, not a safety matter.

PN1649

Mr Brennan, do you work for the company?---Yes, I do.

PN1650

Are you employed by the company?---Yes, I am.

PN1651

Directly for the company?---Yes.

PN1652

Mr Brennan, the EBA procedure sets out that the OHS committee in conjunction with the company should select a sequence of inspection of the area, is that right?
---Can I have a look at the EBA, what you're referring to? I gave it back to you. Sorry.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1653

It's 18.5(g) again?---Yes. Yes?

PN1654

Okay:

PN1655

An immediate inspection of the affected areas will be carried out by THJV safety manager and the work area OHS committee.

PN1656

Did that happen?---Sorry, where are you relating to?

PN1657

I am at page - - - ?---Dot point (2)(g)?

PN1658

Yes?---

PN1659

An immediate inspection of the affected areas will be carried out by -

PN1660

That's what it says, yes.

PN1661

Did that happen?---In relation to what matter?

PN1662

In relation to the issue of dust masks and silica that had been raised as an issue of concern?---No. And there was no requirement to - by the committee. They didn't want to do it, so we - we met, on the 21st and 22nd, there was no talk about having to go immediately inspect the area.

PN1663

In fact, Mr Brennan, is it the case that until the CFMEU contacted WorkCover to discuss these issues, the company had no intention of investigating the complaints at the workforce any further?---That's absolutely incorrect.

PN1664

So what further plans have been made to - - - ?---Well, if you can recall, I mean, you have in front of you just there a complete 2 and 3-page process of way forward, engineering, administrative, et cetera, et cetera, on works, which that was conducted with the employees.

PN1665

Mr Brennan, the approach of the company to the risk posed by the silica dust was to make workers wear this mask, wasn't it?---No, that wasn't correct. We have a whole range of hierarchy of controls which we've been doing for 2 years, without generally the use of dust masks except in specific operations where that's required - - -

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1666

Mr Brennan, has - - - ?--- - - - and followed the - I'm still answering your question, sorry. Followed the lowering of the standard, then we instigated the fifth control and hierarchy control.

PN1667

So to cut to the chase, you directed them to wear the masks?---After exhausting all current other issues, yes.

PN1668

All current other issues? There's always - - - ?---The current conduct controls.

PN1669

Let's just move on, because I think we've dealt with that. Is it the case that the company had agreed to undertake weekly dust monitoring?---Not to my knowledge.

PN1670

Not to your knowledge? Mr Brennan, you're aware that silicosis is a potentially fatal disease?---Yes.

PN1671

For which there's no medical treatment?---I'm not too sure on medical treatment for silicosis.

PN1672

Are you also aware that people who have silicosis are at a greater risk of developing lung cancer than those without?---I've seen the Dust and Diseases Board and there's something there, but I've also seen other studies that's marred by the fact that a lot of people smoke cigarettes, so the connection is up in the air, but I've seen reports that say that, yes.

PN1673

Right. Mr Brennan, can you guarantee that employees working on this site will not be at risk of developing silicosis?---No, I can't guarantee that.

PN1674

Have employees asked for a guarantee that they'll be safe working in this environment, even if they wear this mask?---Employees or unions?

PN1675

Employees?---Unions have asked me for that, yes.

PN1676

On behalf of employees?---I don't know if it's on behalf of employees. That's what they asked me. When I said, no, I could - would not give - actually, they asked for that guarantee in writing and I said, no, I wouldn't supply that.

PN1677

Mr Brennan, is it correct that the company has an obligation under the Occupational Health Act to ensure that workers aren't exposed to levels of silica dust that are in excess of the national standard?---Correct, I think.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1678

In fact, would you agree that best practice would require the company to install a ventilation system that reduces the risk of exposure to silica at its source, not the last resort mask?---We have done that. We've introduced a ventilation system that does reduce silica dust. Has been since day one.

PN1679

But, Mr Brennan, you haven't put any other evidence about this ventilation system that reduces the dust?---Well, as I said - - -

PN1680

You have just said that it's been done. In fact, one of the affidavits appears contrary to that and says that something like that will happen in the future?---No, that's absolutely incorrect.

PN1681

Well, we went to this earlier; it was Mr Jukes' affidavit and I've taken you, Mr Brennan, to the exact section previously?---I'm not aware. Can you take me back to that section, to the bit we don't have ventilation in the tunnel?

PN1682

It was the section that says - it's paragraph 16(f):

PN1683

THJV also offered to employ the services of a ventilation design engineer to review the ventilation system designed to identify effective control measures.

PN1684

?---Mm mm.

PN1685

Well, would you not agree that that implies it hasn't happened yet? If they have offered to do it?---Sorry, I thought you said the question was, do we have ventilation or not. If we've engaged a ventilation engineer to look at ventilation, then we must have ventilation in the first place.

PN1686

Well, I do know you have ventilation because people are breathing down there, aren't they, Mr Brennan?---Beg yours?

PN1687

People can breathe down in the tunnel, can't they?---Yes, they can breathe, yes.

PN1688

So presumably there is ventilation?---Presumably there's air because they need air to breathe rather than ventilation, yes.

PN1689

Well, the question is how good the ventilation system is and whether it - - - ?
---Correct.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1690

- - - is to the best of the company's ability, decreases the risk of - anyway, I'll move on to the next question. Mr Brennan, has the company reviewed its ventilation system since work began on the project?---Yes, they have, yes.

PN1691

When was that?---I'm aware that that happened last year as part of the Commission's requirement that we do that, and we engaged an expert to do that. With the specifics of that review, you would have to ask - - -

PN1692

So again, that was after the unions got involved?---No, we - they review - there are engineers, they're ventilation - they put the ventilation system in, they would review it all the time, but in relation to the outcome of that, Commissioner, I believe it was for an independent up and above a normal ventilation engineers, to get involved and review the ventilation system.

PN1693

But, Mr Brennan, you just agreed that that happened after the Commission hearing, presumably it was referrable to the Commission hearing, or not?---I believe so.

PN1694

Mr Brennan, has the company made any independent inquiries of WorkCover as to the adequacy of paper masks in the circumstance, other than the meaning the other day called for my the union?---In relation to paper masks, no, we haven't done anything in relation to paper masks.

PN1695

Has management themselves adequately tested the paper masks as a solution to the problem that we're facing?---The paper masks are in accordance with the Australian Standards which are heavily tested. One would assume if the Australian Standard approve, they've already been tested.

PN1696

Well, where does it say in the Australian Standard that this mask - - - ?---Well, I'm only going on the masks that I've got, the 3M Australian Standard approved, and there are certificates for those approvals.

PN1697

Well, I put it to you that the Australian Standard doesn't say that this mask is adequate for silica dust?---I don't know about that mask.

PN1698

Mr Brennan, is it the case that Dick Whitehead of the CFMEU, recommended that workers be given certain breaks as a result of having to wear these masks?---I believe Mr Dick Whitehead said something to Rod Dubious in relation to that.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1699

Did you make the response, "No, hours of work is a monetary consideration. We can't make a decision about that. That would have to go to IR"?---No, I can't remember making those comments. Is a monetary decision? No.

PN1700

At the meeting last Friday where the workers were all present, did one of the representatives of the safety committee say to you, "We can't work 12 hours with masks on. We could try 8-hour shifts with some breaks"?---I can't - he may - I'm not sure.

PN1701

Did you not respond, then, "No, the company is doing everything right"?---I may have said that. I'm not too sure.

PN1702

So as far as management is concerned, everything that has to be done is being done in relation to reducing risk from silica dust?---Safety is a continual improvement process. We strive to ensure that every day we get better at what we do. We just don't take a line and say, "That's it, it's not broken, let's not fix it". Safety is very dynamic and you have to keep improving all the time, and that's exactly what we do.

PN1703

I quite agree, Mr Brennan, but it is the case that you feel that everything that is being done can be done at the present?---Everything that's being done is being done at the present?

PN1704

Everything that can be done is being done?---Yes, I would say that we are striving to aim to reduce the silica dust levels, and in doing so, we have safety controls in place, yes.

PN1705

So, Mr Brennan, at the end of the day it doesn't make any difference how much workers complain about the discomfort and impracticality of the direction that they have to wear these masks for a long period of time? That the company won't reconsider its position?---Well, that's absolutely untrue. As you can see there by the meetings and toolboxes with the employees by the company, this is in relation to an M2 site, that there, their comments were taken into account and indeed, they're on that checklist.

PN1706

Mr Brennan, workers have complained that this is not practical, it's not going to work?---No - - -

PN1707

Is the company going to reconsider its position?---Well, we've got a minority saying that. We got the majority is actually working underground wearing dust masks and have for many years. So I mean, what's good for 150 underground currently, for others, I mean, you know, what do you want me to say?

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1708

But, Mr Brennan, you may recall that the WorkCover inspector, when he was here, said that when he went below ground, he saw 50 per cent of people not wearing their masks?---No, well 50 per cent of what? No, he said he's seen a handful of people, which actually was seven, not 50 per cent. Well, 50 per cent of seven is 4 and a half. I thought it was nine, something that he said. But that's not 50 per cent of the entire workforce.

PN1709

Mr Brennan, I will take you to paragraph 872 of the transcript. I will read it to you so you don't need to look at it. I said to the WorkCover inspector:

PN1710

So you understand, don't you, that this company takes a -

PN1711

No, I beg your pardon. Ms McKenzie said to the inspector:

PN1712

So you understand, don't you, that this company takes a very serious attitude to safety and compliance with its obligations?

PN1713

The WorkCover inspector said:

PN1714

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.

PN1715

So there was no action taken against any of that?---The employees, no. There was counselling going with employees. They stopped work as a toolbox meeting.

PN1716

Mr Brennan - - - ?---But over 50 per cent of the persons working in that specific area - - -

PN1717

Okay. Mr Brennan, is it foreseeable that if workers are suffering from discomfort as a result of wearing these masks, say excessive heat, inability to communicate, sweat running down their faces, impeding their ability to breathe, they might take them off?---I suppose they could do that, yes.

PN1718

And what's the company going to do if that happens?---Well, the company's going to find out why they were taking their mask off, what is the issue, what is the problem?

PN1719

Well, I have just told you, Mr Brennan?---What?

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1720

The problem is it's hot, it's uncomfortable, they sweat, they can't breathe properly, it's hard to work in?---Well, they need a legitimate excuse as to why they take their masks off.

PN1721

Other than those?---A legitimate excuse for why they take the masks off.

PN1722

Mr Brennan, it is correct, though, that if workers repeatedly refuse to wear this mask or repeatedly get caught not wearing a mask, they're going to get sacked, aren't they?---They won't be getting the sack. They won't be getting the sack from me. There's counselling procedures in place that the managers have for the workers, and it's with any safety control that we have, if people continually breach it, don't want to fall in line with it or want to work unsafe, then there is a real serious issue. Not only their own safety is in jeopardy, it puts us in breach of the regulations, but they could also impinge their own health in the long term. So yes, we must do something and find out why first, and if there's a legitimate reason, we'll look at that, and if not, then you would need to go to counselling.

PN1723

You would agree that the WorkCover inspector said that he considered that these paper - requiring workers to wear these for long period of time was impractical?---No, I don't remember him saying that it's impractical.

PN1724

I can take you to the relevant section if need be?---Well, yes.

PN1725

I can't find where he used the word "impractical", but I'll just leave this there. It is correct, though, that Mr Dubious said he wouldn't be prepared to wear that mask for even 8 hours?

PN1726

MS MCKENZIE: Can I just say, we have been over this ground before. These questions have all been asked before.

PN1727

THE COMMISSIONER: Yes.

PN1728

MS CHARLSON: I am happy to close, Commissioner. I have pointed to you where it was where Mr Dubois said it wasn't practical. I asked him, or somebody asked him, I'm not sure which:

PN1729

Do you think it was a practical solution that was being proposed by the company, that their employees wear this mask?

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1730

He said:

PN1731

I don't think it's a practical solution, no.

PN1732

So anyway, I'll see if I can cut this a bit short. Mr Brennan, you'd agree that the complaint of the workers in respect of these issues has all been in relation to their safety, health and welfare?---Correct.

PN1733

Yes. And at all times the union representatives have raised these concerns with the employer?---Yes.

PN1734

And that there's been exposure to dust?---There's been an exposure to dust?

PN1735

That's about exposure to silica dust?---Yes, about dust.

PN1736

In the meeting on Friday - we've already have some discussion about your comment - is it correct that you did say that there had only been one death in the last 10 years relating to silicosis?---No, absolutely not.

PN1737

Okay?---I said there was only registered case of a person contracting silicosis. And the lady did die. She was grinding dags off a porcelain bowl, according to Geoff Sharp from the - - -

PN1738

So you said there was only one registered death, registered case of contracting silicosis?---Within the last 10 years, within the standards.

PN1739

Can I just provide to you a document? I think it's already been marked for identification, but I can't recall the number?---I've already read this report.

PN1740

You have read this report, yes. It was handed out yesterday. If I could just ask you to turn to appendix 5, which is the page numbered 80?---Page 18?

PN1741

No, 80?---Yes.

PN1742

Can you please read what it says at the top of that page?---

PN1743

Deaths according to disease total represent deaths by causation, average deaths since the inception of the Act in 1968.

**** JOSEPH BRENNAN XXN MS CHARLSON
PN1744

Can you please go down to the column for silicosis?---Yes:

PN1745

Silicosis; death due to dust, 410. Death not due to dust, 944. total 1354. Average age of death due to dust, 70 years point 74.

PN1746

No further questions, thank you, Commissioner.

PN1747

THE COMMISSIONER: Thank you.

PN1748

MS MCKENZIE: No re-examination. Might Mr Brennan be excused?

PN1749

THE COMMISSIONER: Yes. Thank you, Mr Brennan, you may step down.

<THE WITNESS WITHDREW [2.25PM]

PN1750

MS MCKENZIE: I now call Mr Riku Tauriainen.

<RIKU TAURIAINEN, SWORN [2.26PM]
<EXAMINATION-IN-CHIEF BY MS MCKENZIE

PN1751

MS MCKENZIE: Is your name Riku Tauriainen?---Yes.

PN1752

Can you state what your position is?---I'm the project manager in the Chatswood rail line, tunnel line, responsible for the running part, not for the station.

PN1753

Yes. Thank you. Have you prepared an affidavit of the evidence that you wish to give in these proceedings?---Yes, I have.

PN1754

Do you have a copy of that with you?---No, I don't.

PN1755

I will give you a spare. Sorry, we are getting confused with the statements here. Perhaps Mr Tauriainen can be shown that affidavit? Bear with me for one moment, Mr Tuarianinen. Is there a correction that you need to make to paragraph - - - ?---Yes, there is - just a moment. Paragraph 7 - sorry, paragraph - - -

PN1756

Is it in paragraph 14, the last sentence? Should the reference to page 2 of RT2 be a reference to RT1?---Yes. Yes.

PN1757

I tender a copy of the affidavit with that amendment, Commissioner.

PN1758

THE COMMISSIONER: So what is the amendment?

PN1759

MS MCKENZIE: In paragraph 14 of the affidavit, the last sentence - - -

PN1760

THE WITNESS: I'm sorry, but this is - this is not the right copy.

PN1761

MS MCKENZIE: I am sorry. I think you remember you signed one and the original was handed to the Commission and I explained that the unsigned copies were given to - - - ?---Sorry, is this the right - - -

PN1762

MS CHARLSON: The only problem I have with that is that how do we know we have the same document?

PN1763

MS MCKENZIE: Because I gave it to you. I did explain that we would make copies from the Commission's signed one.

PN1764

MS CHARLSON: Okay.

**** RIKU TAURIAINEN XN MS MCKENZIE
PN1765

MS MCKENZIE: It was the copy, I explained that he had signed it after the copies had been made, so rather than then sign - - -

PN1766

MS CHARLSON: I understand the concept. I just don't know whether we can proceed without knowing if it's the same document.

PN1767

MS MCKENZIE: Well, if we can ask the Commission, I can do a quick comparison and reassure Ms Charlson of that, just so that she can be satisfied.

PN1768

MS CHARLSON: Well, given that Mr Tauriainen has just said he has a different one?

PN1769

MS MCKENZIE: Perhaps Ms Charlson can be shown a copy of the Commission's signed one, and Mr Tauriainen's, so we know we all have the same document?

PN1770

MS CHARLSON: It appears to be the same. Thank you.

PN1771

MS MCKENZIE: Thank you. I apologise for it not being copied from the signed one.

PN1772

THE COMMISSIONER: The amendment was in paragraph 14?

PN1773

MS MCKENZIE: Yes, the last sentence, the reference to - - - ?---Yes, the last sentence, page 2 of RT2, that should be RT1.

PN1774

THE COMMISSIONER: Thank you.

EXHIBIT #M16 - AFFIDAVIT OF MR RIKU TAURIAINEN

PN1775

MS MCKENZIE: Do you say, Mr Tauriainen, subject to that amendment, that the contents of the affidavit and the annexures are, to the best of your knowledge and belief, true and correct?---Yes.

PN1776

I have no further questions, Mr Tauriainen?---Thank you. Maybe I just - I can - I don't have the right annexures, that's all.

PN1777

I am sorry?---I mean the RT1 and RT2. Sorry.

PN1778

Attached to the affidavit should be a two-page document which is RT1 which was the two-page document which I handed up on Wednesday, which wasn't marked as an exhibit and it may not be - I can get a copy if it's not on the Commission's copy of the affidavit. It was the two-page summary document that we handed up on Wednesday which is now marked as RT1. The big bundle of shift rosters is all RT2. That's correct?---There should be one page RT2.

PN1779

Can the Commission bear with me for one moment? I think I have inadvertently completely confused everyone. RT1 is the two-page document that is attached?
---Yes.

**** RIKU TAURIAINEN XN MS MCKENZIE
PN1780

THE COMMISSIONER: Headed, "Weekly Total Production Time"?---Yes.

PN1781

MS MCKENZIE: That's correct. That is all properly named as RT1 attached to the affidavit. RT2 refers to - is there an RT2 still in that bundle?---Yes, there is an RT2, and that's the TBM day shift report from Friday, 4 March 2005. It's handed over already previous proceedings.

PN1782

Yes. I think the confusion is I think I provided to the unions the bundles of the shift rosters which are all in fact attached to Mr Juke's affidavit, and they don't need to be attached to Mr Tauriainen's. It is the annexures I think which are AJ1 to Mr Juke's affidavit. I will locate RT2 and provide that to the unions, but absent RT2, which I will provide. The affidavit has RT1 attached to it at the moment only.

PN1783

THE COMMISSIONER: The other material which you handed up this morning is the same as that - - -

PN1784

MS MCKENZIE: It's the same as AJ1, yes. It's the same material.

PN1785

MS CHARLSON: This is from Mr Jukes? Okay.

PN1786

MS MCKENZIE: I am sorry.

PN1787

MS CHARLSON: Thank you, Commissioner.

<CROSS-EXAMINATION BY MS CHARLSON [2.37PM]

PN1788

MS CHARLSON: Just a few questions, thanks, Mr Tauriainen. At the meeting that was held last Wednesday, is it correct that you were asked by a representative of the AWU whether or not you could comply with the new NOHSC standard in respect of silica dust?---I can't recall if there was so.

PN1789

You were - yes? And is it correct that you said, "Probably not"?---I said that at the moment we are - our exposure is higher than - - -

PN1790

Did you say, when you were asked, "Can you comply?" "Probably not"?---I said most - I say that it's not easy to comply, yes, but we are doing everything that we can - - -

PN1791

Did you not say "Probably not"?---No, not that I can recall.

PN1792

Not that you can recall? Mr Tauriainen, is it correct that the ground conditions that have been experienced in tunnelling very recently have been excellent?
---Ground conditions have been good, but I wouldn't say excellent.

PN1793

Would you not agree that the tunnelling rate came within 4 metres of the world record recently?---For one week, yes, that's true.

PN1794

That's correct? And that currently the ground conditions that are being experienced aren't as good?---At that week when we did the - the best production of all time, we had rocks of both class 2 and 3, sometimes - yes, 2 and 3 predominantly, which means that you are putting rock support, but it's not the full range of support that we have - - -

PN1795

Sorry, you'll have to forgive my lack of understanding of the technical nature. Is it correct that the conditions that are currently being experienced are considerably more difficult?---I wouldn't say so. They have been a little bit more difficult so that we have used the rocks of both class 3 and 4, up to 4, which is more difficult than 3, for one or two days, and then we have continued with the rocks of both class 3.

PN1796

Mr Tauriainen, is it correct that for this week, the company's only 35 metres short of bonus production for a 1-week period?---I can't recall that. I have to go back to the outline and see if that's the case.

**** RIKU TAURIAINEN XXN MS CHARLSON
PN1797

I put it to you that that is the case. You don't know?---I am not quite sure.

PN1798

You probably don't know the answer to this either, then, it's likely that that 35 metres will be achieved tonight, so this week the company will have been into bonus production territory?---I don't know this case.

PN1799

But you can't say it's not correct?---It's not - I can't say that it's not correct.

PN1800

But you have put in an affidavit saying that there are difficulties in production and that's due to what the company is calling industrial action?---Yes.

PN1801

No further questions, thank you, Commission.

PN1802

MS MCKENZIE: I have no re-examination. May Mr Tauriainen be excused?

PN1803

THE COMMISSIONER: Thank you, Mr Tauriainen. You may step down.

<THE WITNESS WITHDREW [2.40PM]

PN1804

MS MCKENZIE: Commissioner, there's only one further piece of evidence and it's consistent with the approach we took on Wednesday, I seek to tender a further statement of Mr Jukes which once again simply updates, brings up to currency the evidence about the action which the company was taken was unauthorised action and this is the third statement from Mr Jukes and it seeks to simply update it. I think perhaps we're - perhaps the statement can be marked?

EXHIBIT #M17 - FURTHER STATEMENT OF MR JUKES

PN1805

MS CHARLSON: Commissioner, can we possibly just have a chance to read that statement to see if we have any objections to it?

PN1806

THE COMMISSIONER: We'll go off the record. I'll take a 5 minute break.

<SHORT ADJOURNMENT [2.42PM]
<RESUMED [2.52PM]

PN1807

THE COMMISSIONER: Yes, Ms McKenzie?

PN1808

MS MCKENZIE: Commissioner, I think Mr Jukes is still hanging in relation to a - he was generally concluded in cross-examination, but I think there was a reservation granted, if you needed to have him recalled to be cross-examined. So subject to that, our evidence is concluded.

PN1809

THE COMMISSIONER: Thank you. Do you wish to - - -

PN1810

MS CHARLSON: Yes, Commissioner, we do wish to call Mr Jukes to discuss this latest statement of his please? Commissioner, we are labouring under something of a disability in respect of this because I have received some instructions in relation to the shift times set out in this statement, but there are representatives from all of the shifts here to tell us whether in fact these times are correct. So if I can make that reservation, that we haven't had sufficient time to consult, really. I was just trying to do it but we didn't quite get through it, and there aren't people here from some of the shifts, even though we requested they be permitted to attend.

PN1811

THE COMMISSIONER: Right. Thank you.

<ANTHONY JUKES, RESWORN [2.53PM]
<FURTHER CROSS-EXAMINATION BY MS CHARLSON

PN1812

MS CHARLSON: Mr Jukes, you've sworn a further statement in this proceeding, or at least your counsel has put forward a statement; it's not signed, is it?---The copy I have here is signed, but it was - the rest aren't signed, no.

PN1813

MS MCKENZIE: I am sorry, perhaps given it is a statement, I perhaps should have got Mr Jukes to adopt it under oath. I know it's been marked as an exhibit, but perhaps we should do that.

PN1814

THE COMMISSIONER: Yes.

<FURTHER EXAMINATION BY MS MCKENZIE [2.54PM]

PN1815

MS MCKENZIE: Mr Jukes, you have a copy of your statement? Have you signed a copy of that statement?---Yes.

PN1816

That's the original statement, is it?---Yes.

PN1817

And do you say that the contents of that statement are to the best of your knowledge true and correct?---Yes.

PN1818

Yes, thank you. I think, again as with Mr Tauriainen, the original was signed before the copies were made, so if Ms Charlson needs to - - -

PN1819

MS CHARLSON: If you can give me an undertaking they're the same?

PN1820

MS MCKENZIE: Yes, I can give you an undertaking that this is the same document, but we can arrange to have copies of the signed one provided later.

PN1821

MS CHARLSON: I am sorry, I will just be one moment, Commissioner.

<FURTHER CROSS-EXAMINATION BY MS CHARLSON [2.55PM]

PN1822

MS CHARLSON: Mr Jukes, could I ask you to please turn to the second page of this new statement?---Sure.

PN1823

If I can ask you to look at the first row across? That's TBM dayshift 1?---Yes.

PN1824

It says under Tuesday, 8 March, 10 am to 5.40 pm, 7 hours 40 minutes?
---Mm mm.

PN1825

That's not correct, is it, Mr Jukes?---I believe it is.

PN1826

You believe it is? I put it to you, Mr Jukes, that the correct figure is 6 pm, that there's a 20-minute break, but it's a paid break in that time? They're shift workers, Mr Jukes, aren't they? It's a paid break under the EBA?---Which break are we talking about?

PN1827

Well, the break that fell between 10 am to 6 pm, the 20 minute break, a 20 minute break?---What, a crib break?

PN1828

Yes, Mr Jukes?---I think on - on the times recorded here, there were some crews that were taking a crib break as it fell and some crews that weren't, and I believe on a few of these - on a couple of the crews here, that yes, they took their crib break. If they didn't take their crib break, as in they finished early, then yes, 20 minutes should be added on to that time, so - - -

PN1829

So it's incorrect, Mr Jukes?---That is incorrect.

PN1830

Right. Mr Jukes, are any of the other figures there also incorrect?---From the shift reports, I've been through the shift reports with Riku and looked at the starting and finishing times. If they haven't taken their crib break and have gone early, well then those times would need to be adjusted, that 20 minutes - - -

PN1831

Well, Mr Jukes, are they correct or are they not correct? Because you have sworn in your statement that they are correct?---Well, at the time I believe they were, but I think some of the - some of the times here would need to have 20 minutes added onto them, if people hadn't taken their crib breaks.

PN1832

I put it to you, Mr Jukes, that quite a number of these figures on this sheet of reference are incorrect?---There may be a few that are incorrect, yes.

**** ANTHONY JUKES FXXN MS CHARLSON
PN1833

I put it to you, Mr Jukes, that all the shifts have done at least 8 hours, some of them in excess of 8 hours in actual fact, contrary to what appears here?---I don't know if they've all done more than 8 hours, it's not my belief, but I think if you do go back through and add the 20 minutes, that most of them would be at 8 hours.

PN1834

Can you tell me that it's not correct that they have all done at least 8 hours? Some of them in excess?---Sorry? Can I tell you that?

PN1835

It's incorrect to say that they have all done 8 hours at least?---I think - and I haven't - I'll have to go back and look at the shift reports and which ones didn't work, didn't take their crib break because on the shift reports I don't think it identifies that, but if you add the 20 minutes, then I would say yes, the majority of them have worked their 8 hours - have worked 8 hours.

PN1836

Mr Jukes, wouldn't it have been appropriate to do that before you put on a sworn statement in the Commission saying that those were the hours worked?---Well, when I looked at the shift reports, that's what I believed, but - - -

PN1837

So you misinterpreted the shift reports, is that correct?---I think I misinterpreted the crib break.

PN1838

Sorry, Mr Jukes, if I can ask you to turn to the last page of your statement, page 3?---Sure.

PN1839

Do you believe the contents of those paragraphs are correct?---To the best of my knowledge, yes.

PN1840

I put it to you, Mr Jukes, that they're incorrect?---They're correct to the best of my knowledge.

PN1841

Mr Jukes, were you there when those stop work meetings occurred?---No, I was not.

PN1842

So how can you give a sworn statement to the Commission that they occurred?
---Well, I took advice from people who were on site and who advised me of the - of what happened.

PN1843

Well, where does it say in that statement that you were told by someone that that happened?---Doesn't say that. I'm saying I was advised that that was the case.

**** ANTHONY JUKES FXXN MS CHARLSON
PN1844

So you concede you have no direct knowledge of those matters?---I wasn't at site at that time.

PN1845

So your only knowledge of those matters is what someone told you?---That's right.

PN1846

Who told you?---The superintendent.

PN1847

Mr Jukes, if you look at the first sentence in your paragraph 4, you say:

PN1848

An unauthorised stop work meeting was held yesterday, Thursday, 10 March 2005 at 6 am.

PN1849

I put it to you that's incorrect?---Well, to the best of my knowledge it is correct.

PN1850

I put it to you that that meeting took place at 5 am?---At 5 am?

PN1851

Yes?---That's not what I've been advised.

PN1852

Mr Jukes, can I ask you to turn to the last sentence of that same paragraph:

PN1853

The meeting ended at approximately 6.20 am, 20 minutes after the employees' scheduled 6 am start time.

PN1854

?---Mm mm.

PN1855

Do you have any knowledge of that actually happening?---Like I said, I was advised.

PN1856

You were advised?---Yes.

PN1857

I put it to you that that's incorrect, Mr Jukes?---I was advised of that and that's what I've recorded.

PN1858

I put it to you, Mr Jukes, the meeting ended approximately 5.45?---That's not what I was advised of.

PN1859

But you don't know?---That's not what I was advised.

**** ANTHONY JUKES FXXN MS CHARLSON
PN1860

But you don't know? You don't actually know at all, do you?---To the best of my knowledge and what I was advised, that that's what I know.

PN1861

Nothing further, thank you, Commissioner.

<FURTHER RE-EXAMINATION BY MS MCKENZIE [3.01PM]

PN1862

MS MCKENZIE: Just a few questions. Mr Jukes, you have said in paragraph 2 of your statement that the times and dates that you have set out are the times and dates which were worked by the underground crews, is that correct?---That's right.

PN1863

You were asked some questions about the taking of crib breaks?---Yes.

PN1864

Yes. Is it the case under the enterprise agreement that the company is entitled to have crib breaks taken on a staggered basis so that production continues?---To the best of my knowledge, yes.

PN1865

Do you know whether that has occurred since the commencement of the industrial action?---I don't believe it has, but I - I've not been working next to people, but - - -

PN1866

Would it be the case, then, if employees stopped to take their crib breaks, that that time would not be recorded as a time worked on the shift schedules?---Sorry, if?

PN1867

Is it the case that if people stop work to take their paid crib break, that that would not show up on the shift schedule as time worked?---I can't answer that, I can't remember. Trying to - I don't look at shift reports everyday, I've just gone through them for these days and I can't remember what is shown up on that sheet.

PN1868

Yes, but if the shift schedule was showing production time, would you expect it to include the time at which employees were not working even though they may be on a paid break, or you don't know?---No, I'm not quite sure.

PN1869

All right, I've got no further examination might Mr Dukes be excused.

PN1870

THE COMMISSIONER: Thank you Mr Dukes, you're excused.

<THE WITNESS WITHDREW [3.02PM]

PN1871

THE COMMISSIONER: Ms Charlson?

PN1872

MS CHARLSON: Thanks Commissioner, I take it that the applicant's case is closed?

PN1873

MS McKENZIE: Yes.

PN1874

MS CHARLSON: Commissioner, in that case I'd like to please call
Mr Dick Whitehead of the CFMEU to give evidence.

<RICHARD WHITEHEAD, SWORN [3.03PM]
<EXAMINATION-IN-CHIEF BY MS CHARLSON

PN1875

MS CHARLSON: Mr Whitehead, have you prepared with the assistance of CFMEU's legal department a statement for these proceedings?---I have.

PN1876

Do you have a copy of that statement with you?---I do.

PN1877

Commissioner, I ask that that statement be tendered into evidence.

PN1878

MS McKENZIE: Well, I'll just note this is the first I've heard of it, the first time I've been given it, and given the time and the courtesy which I've shown in relation to the provision of statements, it's a bit disappointing that we're being given it now.

PN1879

MS CHARLSON: Commissioner, on each occasion we received the statement immediately before the person gave evidence. Exactly the same thing has occurred and I deny any allegation of lack of courtesy towards the applicant.

PN1880

MS McKENZIE: Well, I'll need the time, an hour seems to be the standard course to get instructions, but I won't take that long time, I'll need some time to have a look at it, go and get some instructions. I'm happy if there's any further - if there's examination-in-chief in addition to that, then I'd prefer that to be done and then to have a brief adjournment before I cross-examine.

PN1881

THE COMMISSIONER: Are you relying on the statement or do you want to examine-in-chief as well?

PN1882

MS CHARLSON: I do want to examine in chief as well, Commissioner.

PN1883

THE COMMISSIONER: All right.

PN1884

MS CHARLSON: May I ask for the statement to be tendered.

PN1885

MS McKENZIE: Can I perhaps just reserve any position on objection to that subject to taking instructions? We've no objection to it being marked in the meantime.

PN1886

THE COMMISSIONER: Yes.

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1887

MS CHARLSON: Commissioner, would you like me to give you a moment to read the statement?

PN1888

THE COMMISSIONER: I think I'll have a further read of it when I adjourn for Ms McKenzie to have a look. I'll make the statement subject to any objections exhibit C7.

PN1889

MS CHARLSON: Thank you, Commissioner. Mr Whitehead, could you please tell the Commission what your experience is as a WorkCover inspector?---9 years and 8 months as a construction inspector or senior construction inspection involved in all aspects of construction and civil work.

PN1890

Thank you, Mr Whitehead, and your current role?---I am the occupational health and safety officer, State co-ordinator for the CFMEU.

PN1891

Mr Whitehead, you've been in the room when people have given evidence in these proceedings, haven't you?---I have.

PN1892

And you've heard the last witness but one, Mr Brennan, talk about an incident involving yourself?---

PN1893

MS McKENZIE: I object. Can I perhaps say at the outset that given it's examination-in-chief, I will be objecting to leading questions, particularly since there's an affidavit on as well, and that question was leading.

PN1894

MS CHARLSON: Well, I mean, I'm happy to rephrase the question, but I would have thought it was an uncontroversial matter such that no objection would be necessary in respect of leading, but I'm happy to rephrase the question.

PN1895

THE COMMISSIONER: Well, okay. We don't normally allow leading questions under any circumstances.

PN1896

MS CHARLSON: Thanks, Commissioner.

PN1897

THE COMMISSIONER: If you can rephrase it.

PN1898

MS CHARLSON: Mr Whitehead, were you involved in an incident earlier this year where Mr Brennan was present?---I was.

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1899

Can you tell us what happened in that incident?---I received a phone call, I was at a fatal accident in Tweed Heads, and I received a phone call while I was there that an accident had occurred on the copper dam site at Lane Cove National Park on their old copper dam. The following day I returned to Sydney and I attended the site in the morning at approximately 7 am. Whilst looking at the base of the copper dam from the top I observed two form workers engaged in constructing form work with no fall protection in place. Whilst the workers were wearing harnesses and had lanyards attached to the harnesses, they were back hooked to the D-ring, there was no static line for the workers to attach their harnesses to, or the lanyard. I pointed it out to Joe Brennan. Joe initially didn't see it, he thought that they were hooked up, and then he instructed by phone the supervisor to order the men to stop work and move out of that area. During the course of this discussion I made the comment that clearly following a very serious accident the previous day where a bloke had been knocked around and in fact a paramedic rescue ambulance had attended the site and an intensive care ambulance, clearly there was scant regard paid by the supervisors to the health and safety of workers. Mr Brennan took offence to that, there was a heated argument and it was almost nose to nose where he attempted to intimidate me, shouting and hollering. And it was quite clear to me that the supervisor down the bottom had been down the bottom the previous day when the accident occurred, because I asked that question. And that's the events that took place.

PN1900

MS McKENZIE: Commissioner, I didn't object in the middle of the answer, can I just note for the record that none of that was put to Mr Brennan when it could have been put to Mr Brennan that account of the discussion, it was not put to him.

PN1901

MS CHARLSON: Commissioner, some of that account certainly was put to him, and he denied many of those events taking place, I mean, much of that was put to him.

PN1902

Mr Whitehead, you may recall that some orders had, and I apologise if I'm stuck on leading questions again, but I'm quite happy to - I'm just trying to think how to rephrase it. You know that Thiess was in the Commission previously?---On a number of occasions, on this particular matter?

PN1903

On a matter where Commissioner Harrison made some orders?---Yes.

PN1904

It really is a given matter, Commissioner.

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1905

MS McKENZIE: Well, I'm not sure that it is. Which orders are we talking about?

PN1906

MS CHARLSON: Can you tell me anything about that, Mr Whitehead?---Yes, I can. At that particular time when the matter was being heard, virtually being heard by the Commission, I was asked to go to the site with Steve Keenan, my offsider in safety, where we met Steve Dixon. We carried out a site inspection and there was a large number of problems associated with safety uncovered, in fact there were seven notices written by the New South Wales WorkCover Authority regarding occupational health and safety breaches, and they range from unsafe scaffold, access scaffold that was badly rusted, standing in water, contrary to all the regs, it had to be removed, access and egress, electrical and a whole host of other things. Seven actual notices were issued while the Commission appearance, or during the period when the Commission appearance was going on over getting orders against the workers on the site from taking any industrial action around safety or any other matter.

PN1907

And Mr Whitehead, have you been out to the Thiess site recently?---I was there on Friday of last week.

PN1908

And can you tell me about what happened on that day?---It's been said before, but we met with Mr Brennan, a number of people from the company, some of whom are present here, and a number of safety chairman, three I think, from the various safety committees, a delegate and rank and file safety committee persons.

PN1909

And what was the issue that people were concerned about, why was that meeting held?---That meeting was called because concern had been expressed about the high silica levels and the workers were concerned about the fact that they didn't fully understand whether they were being adequately protected from the risk of exposure to silica dust and the masks were questionable. Now, in saying that, the workers expressed concern about the fact that when you put glasses on, whether they be safety glasses or spectacles, they fogged up. They had extreme difficulty after a while breathing with the masks on. They indicated that there was a lot of water in the area and that water coupled with the humidity and the perspiration made the masks very hard to breath through, in fact almost impossible they said after a while, and they were taking them off, changing them and putting new ones on, and it was creating all sorts of problems for them. I put a proposal to the company along with - there was a whole host of ideas put up. I put a proposal to the company that they should give consideration to adopting what is best practice in the asbestos demolition industry and what has been used in a number of other areas and just off the top of my head, the Union Carbide site at Rhodes where there was soil rehabilitation and it was a four year job undertaken by Carringtons. There was regular breaks all the time because everybody was required to wear masks, so they had breaks on the hour. Best practice in the - - -

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1910

Sorry Mr Whitehead, how long were those breaks?---I believe from memory that they were 10 minute breaks, but then they had a minute or two or 5 minutes for washing up. Best practice in the demolition industry is a 10 minute break with a maximum of two hours work without a break, and then you get a 20 minute break when you're wearing the mask, so I actually put that proposal up.

PN1911

And why is that necessary, why are those breaks necessary?---Because it's extremely cumbersome and - it's not real good to work with those masks on because of the heat, the breathing and it just knocks people around, especially when they're doing heavy strenuous work. And as people have said to me, it's one thing to go down and do a site inspection and carry out an inspection when you're not carrying out heavy physical work, and these people are working physically. There was also the giant Olympic site at Homebush where there was a lot of soil remediation work carried out there and that was at all times the workers, there was an agreement where the workers would have rest periods from wearing the masks and they would go into a safe area, like the crib shed, have a clean up and have a rest. The public works job at Penrith rail station where they were removing lead paint over a long period of time, they had breaks and in fact that was the subject of a senior inspector, Steve Jones, going to that site and initially writing notices, and that was a public work site. Most ship warming sites, like Garden Island Dockyard et cetera, when they're removing paint from the ships they have to wear these masks and they have regular breaks there. The workers on the Harbour Bridge where there's a requirement where a lot of them suffered from lead poisoning, they have what is recognised as rest breaks. And like I said, the best practice in demolition. Also, there was a very large site out near the Shell Oil Refinery at Camellia and I think from memory it was Anzac Parade, Camellia or Anzac Drive, there was a requirement for the pile driving people to wear masks out there and they had the regular breaks. Now some of these jobs took up to four years to complete, like the Union Carbide site at Rhodes, and there was never any argument. Multi, multi million dollar jobs.

PN1912

Thank you, Mr Whitehead?---Could I just say one further thing? I made a comment to the company and I asked the company, I said "Look, I want to go away from here the same as WorkCover does, and I'd like to hear that there's a phone call go through to the Commissioner that everybody's got together and there is meaningful discussions taken place and we're looking like we're going to get a solution, we don't need to come on Monday", that didn't happen. That was my final words to the company and to the workers at that meeting.

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1913

Okay, thanks for that, Mr Whitehead. If I can ask you to turn to the annexures attached to your affidavit, the first one is annexure A. Can you tell me what that is?---That's a study and some recommendations that were carried out by Professor John Matthews who I was advised earlier in the week is now a professor at the Australian University, and it was carried out for the Australian trade union movement. I don't know how long ago, I can't say.

PN1914

Okay Mr Whitehead, if I can ask you to turn to the second page of text of that annexure, which is page 458 of the publication?---Yes.

PN1915

Could I ask you to please read from the paragraph where it says:

PN1916

Rest Breaks

PN1917

?---

PN1918

Rest Breaks

PN1919

Use of PCE - - -

PN1920

Sorry Mr Whitehead, what's PCE?---Personal protective clothing equipment.

PN1921

Thank you?---

PN1922

always constitutes a disability in that it is cumbersome, uncomfortable, fatiguing and sometimes hazardous, therefore it should always be accompanied by rest breaks to allow workers to recover, such breaks should be taken at the rate of 10 minutes every hour at least. Paid rest breaks should be seen as an invaluable accompaniment to personal protective equipment -

PN1923

PCE, sorry.

PN1924

Regular rest breaks act as a constant reminder to the employer that the use of PCE is not natural and that there are alternative methods of hazard control available. Unions should never trade rest breaks for monetary disability allowances.

PN1925

And if I could ask you to read the next paragraph as well?---

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1926

Job Rotation

PN1927

Again, because of the use of PCE is not natural and constitutes a severe disability for workers, unions should seek agreement that no worker should ever have to spend more than half their working time using PCE. This can be achieved by providing a variety of jobs and by job rotation.

PN1928

Mr Whitehead, what's your comment on those sections, in accordance with your experience?---Well, I've never struck, but I dare say it has happened in some areas where you use job rotation, I personally haven't seen it happen. I wouldn't be telling the truth if I said I had seen it happen, but I've seen plenty of jobs where workers have had breaks and, in having those breaks, they'd - in some cases they do have other people come in and take over from them so the job doesn't stop, but it's not actual, like, you know, two hours in and two hours out.

PN1929

Thanks Mr Whitehead, if I could ask you to turn to the next annexure to your affidavit?---Yes.

PN1930

Can you tell me what this is?---This is a document under the letterhead of ARCA, which is the Asbestos Removalist Contractors Association Incorporated and it's with the Building Workers Industrial Union of Australia, Box 89 Trades Hall, 54 Victoria Street, Carlton South, Victoria, and it's addressed to Mr Kingham. Do you want me to read it?

PN1931

That might be helpful, thanks?---

PN1932

Dear Sir,

PN1933

Re: Understanding between BWIU and ARCA in relation to appropriate rest breaks for respirator protection for the removal of asbestos

PN1934

In recognition of the discomfort imposed on workers required to wear respiratory protection whilst working in an asbestos contained area, the parties have agreed in principle to a formula of 20 minutes recovery rest time for every one hour wear respiratory protection whilst in the contaminated area. The formula can be applied in different ways site by site, but the preferred application is for 3 hours in the respiratory protection, 1 hour recovery/rest break as this reduces lost time due to extra showers.

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1935

That's probably sufficient, thanks Mr Whitehead. If I could ask you to turn to the next page and go down to 4(j), if you could just read that sub-paragraph to me?---

PN1936

Protective clothing or equipment is uncomfortable and sometimes hazardous and so should always be used for short periods only. Paid rest breaks should be negotiated as part of the protective clothing package.

PN1937

And do you have any comment to make about that, Mr Whitehead?---Well, that's an ACTU Bulletin No. 48.

PN1938

Sorry, not about the next matter, about that document, is there any comment you wanted to make about the Asbestos Removalists - - -

PN1939

MS McKENZIE: I object to that as a question, it's a bit open ended, "Would you like to make a comment about it".

PN1940

MS CHARLSON: It's a genuine question, if he wouldn't like to make a comment, he can say so. If he would like to make a comment, I mean, he is the person who has knowledge of this area.

PN1941

THE COMMISSIONER: Comment about what?

PN1942

MS CHARLSON: About the document that he's just read aloud to us.

PN1943

THE WITNESS: Well, clearly, that Asbestos Removalists Contractors Association document was dated 3 October 1991, we've come a long way since 1991, a long, long way, and I put it to the Commission that people have become more aware and more conscious of the fact that workers shouldn't be exposed to the risk of injury, the employers have a duty of care to ensure that no worker is placed in that position, but there's also a duty of care, and I say it's a duty of care, to ensure that workers are given the breaks and not expected to wear that type of equipment all the time, it's not natural, it's unnatural, and I personally believe it's a health risk and I don't see how a person could work 8 hours let alone 12 or 14 hours with those masks on, it's harsh.

PN1944

MS CHARLSON: Thank you, Mr Whitehead. Commissioner, I've just noticed an error in a way that we've labelled the annexures. I've got B on both that document we've just been discussing and the following document, which Mr Whitehead's also read allowed from, and they're actually two entirely separate documents. I apologise for that error. Perhaps if I could just correct all of the annexures and we can relabel them, is that possible?

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1945

THE COMMISSIONER: Okay, so the ACTU Bulletin should be C?

PN1946

MS CHARLSON: Yes, it should be C. And then if we can make "Silica Dust and Silicosis" D, and then the current D, E, I'm not sure if there's an F. There is an E, I'm going to make that F, and make the equivalent changes to the affidavit. Sorry about that, I'm sorry to hassle you.

PN1947

MS McKENZIE: And the paragraphs 23 to 26 will have to be changed in Mr Whitehead's affidavit, because .....

PN1948

MS CHARLSON: ..... bring it all up to date, yes. So if all ..... those changes can be made to the affidavit.

PN1949

Sorry about that, Mr Whitehead. So if I could ask you again to turn to what's now C, the ACTU Bulletin, can you tell me what that is?---That is a bulletin that was taken out of the files of the occupational health and safety unit in Victoria earlier in the week. I spoke to the OH & S CFMEU State manager, Pat Preston, and he said "Yes, I've got a ACTU Bulletin that we've used down here" and he said "There's not much call for it nowadays, but I'll email it up to you". He actually sent that to me by email, which came out on my - and he sent it to me by fax, which came out on my computer as an email.

PN1950

Right, and you say there's not much call for it these days, do you know why that is?---Well, the vast majority of responsible employers acknowledge the fact that people shouldn't be expected to do this type of work without having rest breaks.

PN1951

Thanks, Mr Whitehead. If I could ask you to turn to the next - actually, I think we've probably looked at that document sufficiently, unless Mr Whitehead, you've got any comment about that Workers Health Centre document?---No, that's been - - -

PN1952

It's already been ..... ?---Yes.

PN1953

If I can ask you to turn to annexure E and explain that document to me?---E?

PN1954

E - sorry, it was D and now it's E?---All right. That's an extract from the Occupational Health and Safety Regulations 2001, "Hazardous Substance", "Use of Hazardous Substances", and it's clause 165 and it defines what an employer has to do in regards to provide health surveillance and a couple of pages on it has the definitions of what is a hazardous substance and on page 4 of the document it talks about silica and the fact that it is considered to be hazardous.

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1955

Thanks Mr Whitehead, and if I could ask then to turn to, I think it's the last document annexed to your statement, now document F. I'd ask you if you can tell me about that document?---That comes under the Australian Government National Occupational Health and Safety Commission with the Australian Coat of Arms on the top, it's a NOHSC document and it talks about exposure standards for crystalline silica, which is the type of silica that we have in the Sydney Basin, so I've been told, so we've been talking about for the last couple of days.

PN1956

Maybe if I could just ask you to read the third paragraph down of that document?---

PN1957

Certain exposures to crystalline silica can cause serious harm to human health. Prolonged exposure to respiratory crystalline silica can cause silicosis. The revised national exposure standard for crystalline silica has changed for quartz from 0.2 milligrams to 0.1 milligrams.

PN1958

I'm not sure whether I'm using the correct pronunciation for that.

PN1959

Can I ask you to read the last sentence in the next paragraph?---

PN1960

These changes have been recommended to reduce the potential incidence of silicosis.

PN1961

Thank you, is there anything you wanted to say about that document?---Well, clearly the Federal government have been concerned about it and NOHSC has been concerned about it and they've carried out a series of studies and I've got no doubt the decision to make those changes, it wasn't taken lightly because NOHSC and the government would have understood the affect on industry, especially jobs that were already under way, and well under way. They would have clearly understood that. The matter wouldn't be taken lightly and, in saying that, that just emphasises the importance of what we've been debating in the last couple of days.

**** RICHARD WHITEHEAD XN MS CHARLSON
PN1962

Thanks, Mr Whitehead. Are there any other issues that you wanted to address in respect of ventilation in the tunnel?---Well, I think it will be a mammoth task to change the ventilation. It possibly can be done, I don't know, I'm not an authority on that type of thing. But I do know that with crib sheds strategically located underground, and they are there, with the proper ventilation systems in the crib sheds in the air conditioning units, workers could have these breaks, go to the crib sheds, scrub up, go in there, have a break, and unwind. I do not accept that those masks will stand up to water, perspiration or anything else and I'm very, very concerned about the fact that they mightn't be doing the job properly. That's my main concern, aside from the fact - the stress of using them, the fact that, do they do the job properly? Nobody can say. Nobody can say that they do it. I know they've gone one step up in what's required in the standard, but I'm still concerned about it.

PN1963

I've got no further questions for the witness at this time, Commissioner.

PN1964

THE COMMISSIONER: Thank you.

PN1965

MS McKENZIE: Commissioner, I probably won't actually need a break, I'm happy to cross-examine Mr Whitehead now unless the Commission wanted to have a break.

PN1966

THE COMMISSIONER: No, thank you.

<CROSS-EXAMINATION BY MS MCKENZIE [3.34PM]

PN1967

MS McKENZIE: Mr Whitehead, you said in paragraph 2 of your affidavit that you worked as an inspector at WorkCover for a number of years before joining the CFMEU, that's correct?---That is correct.

PN1968

Yes, Mr Dubois known to you, is he?---Yes, he is.

PN1969

Close personal friend?---Close.

PN1970

Friend?---Friend, yes, close personal friend.

PN1971

But you're now with the CFMEU?---Yes.

PN1972

And you're an employee of the CFMEU?---Yes.

PN1973

You would agree, wouldn't you Mr Whitehead, that in circumstances where the CFMEU is in dispute with an employer, you would not be regarded as an independent witness in that sense, would you?---No.

PN1974

You're representing the interests of the CFMEU, are you not?---Yes, that's right.

PN1975

Yes?---Honestly.

PN1976

Yes. Paragraph 6 of your affidavit, you refer to:

PN1977

protective paper masks

PN1978

Are you referring to masks that are specifically made of paper or are you referring to the generic, to dust masks generally, whatever they're made of?---The common terminology for them is paper mask, in the industry.

PN1979

You understand, don't you, from the evidence of Mr Brennan, that the masks that are used on the THJV project he says are made of polypropylene?---I understand he said that, but that's not that mask there. He was talking about one lot of masks, the workers are saying that's what's issued, and it's an entirely different mask to the one he's talking about.

**** RICHARD WHITEHEAD XXN MS MCKENZIE
PN1980

Yes, what I'm just trying to ascertain, sorry, I'm clear, Mr Whitehead, is when the comments that you make in paragraph 6, are they intended to apply to all dust masks or only paper masks, or are you using the paper masks to mean dust marks generally?---Dust marks generally.

PN1981

Yes, thank you. Can I ask you, in paragraphs 18 and 19, you recount what Mr Dubois, you say said at the meeting, you've heard Mr Dubois's evidence in the proceedings, did you?---Yes, I did.

PN1982

And you'd agree that Mr Dubois has not given any evidence that he said either of what's in paragraph 18 or 19?---He never mentioned any of that in his evidence.

PN1983

No, thank you. And Mr Whitehead?---Excuse me. He agreed with me on paragraph 19 where we spoke about the parties getting together and I said it and so did Mr Dubois, that the parties should get together and get into meaningful discussions, it was said three or four times during the course of the meeting.

PN1984

Yes, my question, Mr Whitehead, was that do you agree that Mr Dubois did not give evidence to that effect in these proceedings?---No, he didn't.

PN1985

Yes, thank you. And you referred to a number of building sites where, I think you said from your own experience, rest breaks have been provided to employees wearing protective equipment?---Yes.

PN1986

Were they underground ..... sites?---No, they were not.

PN1987

No?---No, they were not.

PN1988

Yes, and were those sites where typically the dust exposure was silica or was it some other kind of dust?---Airborne contaminants in the dust at the Union Carbide site and they were mindful of the fact that there was polychlorinated bi fennels processed on that site and they were actually fearful that actually being in the dust itself and people would ingest it through the dust. The other sites were just paint and chemicals and the likes, but that was - no tunnel work.

PN1989

Yes, thank you. I've got no further questions, Mr Whitehead.

**** RICHARD WHITEHEAD XXN MS MCKENZIE
PN1990

MS CHARLSON: No further questions for the witness, thank you.

PN1991

THE COMMISSIONER: Mr Whitehead, you're excused?---Thank you.

<THE WITNESS WITHDREW [3.39PM]

PN1992

MS CHARLSON: Commissioner, I call Mr Steven Dixon.

<STEVEN DIXON, SWORN [3.39PM]
<EXAMINATION-IN-CHIEF BY MS CHARLSON

PN1993

MS CHARLSON: Mr Dixon, have you prepared a statement for these proceedings?---Yes, I have.

PN1994

Do you have a copy of that with you?---Yes, I do.

PN1995

Commissioner, I tender this document and ask it be marked for identification.

PN1996

MS McKENZIE: Well, again Commissioner, this is the first opportunity I've had to see it, and I perhaps just reserve the position in relation to objection and also the possibility that I'll need a brief adjournment before I cross-examine.

PN1997

THE COMMISSIONER: Yes, thank you. Well, I mark the statement of Mr Dixon as exhibit C8 and Ms McKenzie's rights are reserved.

EXHIBIT #C8 STATEMENT OF STEVEN DIXON

PN1998

MS CHARLSON: Mr Dixon, is it the case that employees have been complaining to you about some issues at the Thiess site recently?---

PN1999

MS McKENZIE: Well, it's a leading question, you may as well.

PN2000

MS CHARLSON: Commissioner, I have to rephrase the question?

PN2001

THE COMMISSIONER: Yes, please.

PN2002

MS CHARLSON: Okay. Mr Dixon, what has been said to you by employees at the Thiess site recently?---Well recently it's silica, but from day one there's been nothing but complaints about safety on this job.

**** STEVEN DIXON XN MS CHARLSON
PN2003

What do some of those complaints include?---Well, at the moment we're talking about silica and people potentially being exposed to lung cancer at some point in the future, well after these people are finished the job ..... . But certainly in the past the issues, every issue that I attend this site over is in relation to people complaining about bad safety. The examples, mindful of the time and the time of the year, I'd need a long, long time to go through them and they certainly wouldn't be scientific, but some examples, the Lane Cove cut and cover project that they had a fair bit of complaint to the Commission about, about our conduct and our members' conduct, they had the rigging supervisor down there physically installing lifelines himself and he doesn't hold any rigging qualifications. He was in charge of three pin jubes, three 80 tonne pin jubes, major copper dam, structural work, major materials handling, five cranes coming and going, and this guy didn't have a ticket and people were getting warnings because they refused to hook up to his lifelines, and the lifelines didn't comply with normal safe practice in the industry. And finally, when it started coming to a head, I requested to see his rigging ticket and was fairly shocked when the words came out that he'd never had one.

PN2004

Are there any other incidents that you're concerned about particularly - - -

PN2005

MS McKENZIE: I object to that question, what's the relevance of that in the context of these proceedings?

PN2006

MS CHARLSON: Commissioner, I'd submit that it is relevant. The company's record in relation to safety is one of the very matters that we're concerned about here today.

PN2007

MS McKENZIE: Well, that's the first we have heard of there being a concern about a record, the company's record in relation to safety, it's the first time that has been mentioned in these proceedings. This is a 127 application where the test, we thought, it was whether there was an imminent risk to health and safety in relation to dust.

PN2008

MS CHARLSON: We would say that having a poor record in the past and particularly the recent past, has affect that the likelihood of there being an imminent risk at present.

PN2009

MS McKENZIE: Well, can I just say this, not one single company witness was cross-examined about their previous poor record in relation to safety.

**** STEVEN DIXON XN MS CHARLSON
PN2010

THE COMMISSIONER: That's true. Look, I've just heard the second reference to the Lane Cove cut and tunnel dispute and the decision which I made in issuing an order. I have to say for the record that one of the grounds that I made that decision upon was the fact that WorkCover had visited the site and no prohibition notices have been issued.

PN2011

MS CHARLSON: Is this the matter where there subsequent issues?

PN2012

THE COMMISSIONER: Rectification or prohibition?

PN2013

THE WITNESS: Improvement.

PN2014

THE COMMISSIONER: Improvement, improvement notices, not prohibition notices. So, I'm just saying from where I'm sitting up here that the relevance is something which I have to take into account in the overall sense of making a decision in this matter, but I'd just repeat that the history of the Lane Cove cut and tunnel dispute, I think, is on the record.

PN2015

MS CHARLSON: Certainly, Commissioner, well we'll take that as read in that case. Mr Dixon, if you could tell me something about the current issues?---True to the company's previous form, they don't sit down and try and resolve things, they manipulate people, they try and intimidate people into agreeing to their point of view and when people resist that, we find ourselves here. There's been no genuine consultation. In the minds of the workforce, it's simply "Here we go again", and the best example of that from the workforce's point of view was when we had the meeting with WorkCover instigated by my leader on their behalf, we turn up, myself, Mr Doherty, Mr O'Brien, Mr Whitehead, we turn up there and find out that Mr Brennan has gone and got one person from the safety committee. Him and Mr Butler when and selected one person from one safety committee and we had to run around this massive job trying to get other people. Eventually we were successful in getting, I think, about three or four workers' representatives, one of whom was a delegate and was denied access to the meeting on the basis that it's a safety issue, so it's nothing to do with you. And there's been no genuine co-operation with the workers and their representatives in trying to progress this.

PN2016

Mr Dixon, can you tell me what workers have said to you about the direction of the company to wear these masks throughout the whole of their shifts?---Wear the mask or don't work here, in a nutshell. On the ground, that's what the supervisors say. And, while I'm under oath I'd like to say, that both of those masks that we've had at the bar table have been issued to me at the M2 project by someone from the company and they are the masks that I have seen being used and worn by all workers on the M2 project.

**** STEVEN DIXON XN MS CHARLSON
PN2017

Thanks Mr Dixon, whilst we're putting matters right on the record, can I refer you to this document? Everyone's already seen it, I don't have a copy to hand to you, but I don't intend to refer to it in any detail. It's a document which contains an email received by you, I understand, is that correct?---That's correct.

PN2018

And at the top of that document it says:

PN2019

After reviewing all of the information that you sent me in relation to the Thiess Hochtieff JV and the CFMEU dispute with the Epping-Chatswood Underground Rail Link, I make the following comments:

PN2020

Could you please say while you're under oath for the record what documents you provided to Mr Inglet?---I provided three documents that were tendered by the company. One is the new NOHSC standard, the amendment, and the entire standard.

PN2021

Is that the document there?---That's correct, that's that document. And both of the Pickford Ryder reports that contain their comments, observations and comments, and from memory I think one was dated the 10th of February and the other one was dated the 18th.

PN2022

And did you provide him with anything else?---No, I didn't. Sorry, I did, my business card, so he knew where to fax his report through to.

PN2023

Sure. So Mr Dixon, if I could go back to the issue of the mask, what did people say to you about the direction that they had to wear this mask?---That it's completely unreasonable and, also for the record, people can be quite pedantic about "This is a polyethylene mask" and all that. I mean, it's known throughout the entire industry as a paper mask. There's two categories of mask that are commonly referred to, one's a cartridge rubber, and the other one's paper. This is paper, they know it, and if it was polyethylene, it's wholly and solely made of polyethylene material, I am confident that you couldn't breathe in it, other than through the valve.

PN2024

And why did people say to you that they were concerned about the direction to wear those masks?---It's, in the workers' view, and I agree completely, it's not physically possible to work in a tunnel doing - the type of manual labour you're talking about that these people do is not simply like loading a truck or hard physical exertion. When they're roof bolting, when they're drilling, there's not the slightest amount of time that they can break, not one split second, because they're drilling in potentially unsupported ground, they need to go for their life, put as much effort as humanly possible into it to get it over and done with and get the bolt in, and get the anchor in. And the company know that, they know the type of physical effort you're talking about is - I've seen men working in this tunnel that physically are what would be described as a perfect specimen of a human being, built like you can't imagine, and I've seen them after one run on an air drill, drilling into the roof, and their body is like jelly. You know, they're completely and utterly exhausted, completely covered in sweat, and this is one roof bolt.

**** STEVEN DIXON XN MS CHARLSON
PN2025

And how many roof bolts do they put in during one trip?---I don't know, but on a 12 hour shift they would all have more than their fair share of putting them in.

PN2026

Sorry, Mr Dixon, were there any other specific problems that were raised with you by the employees about the direction to wear those masks?---Apart from the fact that they're impractical, that the employees don't believe they're safe, that they don't believe they'll work, there's issues of people's faces that they don't fit, people with beards. It's our view that employees didn't sign onto this job with a condition of employment being that they be required to shave. There's an enterprise agreement in place, the conditions of employment were sorted out in that, and if the company want to change the rules at this stage of the game, then they should at least have the decency to take into account people's views and negotiate, rather than dictate.

PN2027

And, Mr Dixon, did you pass on these concerns to the company?---As forcefully as what I could.

PN2028

Can you tell me about when you did that and who you spoke to?---My first involvement in these meetings was, I believe, last Wednesday. There was a meeting at the M2 site that probably went 4 or 5 hours, something like that, I think. We've heard the people that were there, from memory it was Joe Brennan, Anthony Dukes, Riku, Christian, and there may have been other people from management, I'm not sure.

PN2029

And what did you say at that meeting?---I'd be hard pushed to remember everything I said, but the general thrust of what the three union officials and all the delegates and safety reps were saying, is "This is not going to work, you're putting us in a position where we won't be able to properly do our jobs and you need to be fair dinkum about this", and that was the general thrust of it, and I don't believe that we really got anywhere.

PN2030

Right, so can you tell me what the company has done about those issues being put to them?---From what I've seen, ..... management. You know, they're good at producing pieces of paper, but when it comes to physically making changes at the workplace that impact on people's safety, I haven't seen any evidence of that.

PN2031

And can you tell me what conditions are like in the tunnel?---Well assuming that someone in the room gets to go to hell one day, they should go to a tunnel first and I would imagine there'd be no difference, I think it's probably one of the most difficult work environments that you could ever have, given the fact that these people are doing, in effect, underground mining, but in sub-standard conditions because the tunnelling industry is, whilst it's identical to a hard rock mine, it's not covered by the Department of Mine's regulations because in the past lobbying from employees being very successful on governments and, in a nutshell, their argument is "If you force us to comply with the Department of Mine's regulations on a construction site such as a tunnel, even though they're identical, then we won't be able to afford to it, because we can't afford to do the same sort of ventilation as an underground mine". An underground mine's there for 15 or 20 years or longer, so it's a long term investment, whereas they see this type of work as really temporary, get in and get out as quick as you can and, you know, so it's not covered by the Department of Mine's regulations, it's covered by WorkCover, and that reduces, automatically reduces a lot of the working conditions to a much lower level than what you would find in a hard rock underground mine.

**** STEVEN DIXON XN MS CHARLSON
PN2032

And can you tell me how the ventilation in this tunnel compares to that you'd find in a hard rock mine?---Certainly less, certainly less of a standard. In fact, I've suggested to the company on numerous occasions, not tongue in cheek, that what they should do is pipe it up into their office block. If it's good enough for the blokes downstairs, I don't see why it's not good enough for them sitting up in the office.

PN2033

So what's the company doing in relation to ventilation, what's the ventilation like?---When it works, according to all the employees that complain about it, it's sub-standard, that's when it works.

PN2034

In what way is it sub-standard?---Well, there's always complaints that there's not enough fans. There's always complaints that what are known as the bulkhead doors, which create the air pressure, are either left open or opened up when they shouldn't be opened up. There always seems to be a complaint from the average person working there that the ventilation is not good enough.

PN2035

And can you tell me what the ventilation's like in the crib shed?---Downstairs? It's the same air that's in the tunnel. Crib sheds are just site sheds, they're not properly sealed, they only have domestic air conditioners with domestic filters. I mean, if it's .62 outside the crib shed, then it's .62 inside the crib shed.

PN2036

Right. Mr Dixon, could I ask you to open your statement and turn to annexure C. Can you tell me what that document is?---That is the Dust Diseases Board 2004 Annual Report.

PN2037

And could I ask you to turn to page 80 of that report, or the extract from that report?---Yes.

PN2038

And can I ask you to please read the second row across and explain that statistic to me?---

PN2039

Silicosis

PN2040

These figures according to the table represent deaths since the inception of the Act in 1968. Silicosis, there's been 410 deaths as a direct result of silicosis.

PN2041

Mr Dixon, can I ask you what happens to these masks when they become wet?
---They go soggy and fall apart, and everyone knows that, it's not a secret.

**** STEVEN DIXON XN MS CHARLSON
PN2042

Mr Dixon, how many times would you need to change that mask in a shift?
---That, I suppose, would be dependent on what you were doing and the conditions you're working in. If, for example, you were in an excavator that still has the doors on it and the air conditioner still works, you could probably get away with a couple a day. But I would expect, talking to employees on the site, that they would need to change them, on average, every half an hour to an hour.

PN2043

So how many masks would you calculate the company would go through if they gave employees sufficient to change them every half hour?---Actually, the blokes did a figure on this the other day and I think they, from memory, I think they came out with about 12,000 a week, on average.

PN2044

And do you know how many the company has provided?---No, I don't.

PN2045

Do you know how many they've got in store?---No, I don't, but I know that each employee generally, from discussions I had, I think yesterday morning, they've all got one each.

PN2046

For the day?---Well, when they leave the site sheds, leave the compound, you know, they've got one each.

PN2047

Right, and do you know if there are others available down below?---I'm told, well, I'm told they're not available down below, but they're available in the store. But I would assume that if people need them, a troupe carrier comes up and gets them.

PN2048

Okay, Mr Dixon can I ask you to please go to annexure B of your affidavit. Can you tell me what this document is?---That's a letter that I sent to the project director following complaints from employees that the company is not meeting their obligations towards injured workers on the project.

PN2049

And why did you send that letter?---Because we had quite a distraught member come into the city office, that didn't speak a great deal of English, who claimed that he had injured himself, he had an ear infection from the humidity and his ear had started bleeding overnight and covered his blood in pillow, covered his pillow in blood. He'd gone to see the company doctor and the company doctor had sent him back to work. He'd then gone back again and he believed that he shouldn't be at work. He then didn't come to work, he had a certificate. He rang his supervisor to tell him that he was off work and the supervisor asked him to come in and bring the certificate. This worker claimed, as I understood, that the boss had taken the certificate off him, screwed it up and thrown it in the bin. I then found - I don't believe that that actually occurred, after speaking to the supervisor, but the supervisor did concede that he escorted him back across to the shopping centre, back across to the doctor, sat in the doctor's surgery with him and offered the advice to the doctor that he could provide suitable alternate duties. So, given the language problem, you know, it was difficult to get precise details, other than, you know, those general facts. I think some of what I understood he told me was true and I raised it with the company in a meeting the following day and it's quite clear that the company have a practice whereby if people get injured, they used the words "encourage them" to attend the company doctor and they encourage them to invite the supervisor into the doctor's room so that he can help in providing assistance and then after they put the plaster on, they take them back to the job and sit them in the sheds, in my view, so they can avoid the workers comp.

**** STEVEN DIXON XN MS CHARLSON
PN2050

Mr Dixon, there was some discussion I think from Mr Jukes about the train stations when he gave evidence the other day. Can you tell me whether excavations currently taking place at the train station?---He said a lot didn't he. Pushing to remember everything he said. I think in the stations from what the blokes have told me it's largely all been excavated and there is may be some pineapple heads on an excavator and maybe still one road header working, I'm not sure.

PN2051

If people are working longer than 8 shifts, isn't that be related to the fact that they are not underground?---Sorry, I have ..... your question.

PN2052

My recollection of what Mr Jukes evidence was is that some workers are working in excess of 8 hour shifts. Do you recall him saying that?---Yes. I assume that that was in reference to the stations.

PN2053

Do you have any comment about that?---Well, there is no TBM work in the stations and from my knowledge talking to the workforce, there is no raiders in the stations at the moment either other than I think Chatswood.

PN2054

Mr Dixon when were you issues with these masks?---Yesterday I was issued with one. I requested it obviously to bring along here not to wear and to compare with what the company was saying and I think that one that I pulled apart I wasn't issued with yesterday, the one from the packet I was.

PN2055

They are both identical?---Yes, they are both identical. And the other one I was issued with I think last Wednesday after we had the meeting where I requested it.

PN2056

Did you see employees being issued with identical masks?---Yes. The people at the M2 side from what I saw they have all got the same masks which really disturbed me because here we go again the company are presenting this evidence, this information, from 3M yet they are not handing out the masks that the information relate to and those masks are quite easy to notice because they have got the symbol on the front.

PN2057

And did you write "Not 3M" on it?---Yes, to remind myself.

PN2058

Mr Dixon, can I ask you to have a look at the packaging of this mask and I am happy to show it also to Ms McKenzie obviously. Can you see a key on the back of that packaging? A colour coded key?---Yes, I can.

**** STEVEN DIXON XN MS CHARLSON
PN2059

Can you tell me what each colour correlates to in terms of description?---The mustardy colour is FFP1, that's the mustard colour which is this colour at the front, blue is FFP2 and yellow is FFP3.

PN2060

From reading that what was your understanding of what kind of mask that is?
---Well, it's rather interesting because the colour code signifies it as P1 yet some one has stamped P2 on the front of it.

PN2061

Stamped? You say stamped?---Well, there is an imprint here of P2 in writing, yet the colour code, based on the company's legend at the back, clearly indicates that it's a P1.

PN2062

Commissioner, I have got no other questions thanks.

PN2063

MS McKENZIE: Perhaps, if I can just have 10 minutes adjournment if that's possible then I will be ready to cross-examine.

PN2064

THE COMMISSIONER: Can I, just before you do, put a question to Mr Dixon and perhaps I should ask him now and then ..... can follow through if need be. I am taking a broader view about this perceived problem because the amended Standards affect not only this site but other sites tunnelling. There are a number of other sites in Sydney currently tunnelling, Lane Cove and across the channel. From your knowledge, how are the new standards being applied on those projects?---On the cross city tunnel, my understanding is there is two road headers left working there it's largely done. They are working in the ventilation shaft and my information is that the workers on that location are rotating so they are having breaks and wearing cartridge masks, proper masks, and also ventilated masks. On the Lane Cove tunnel site, I am not familiar with the precise detail, but I know that both ourselves and the AW have spoken to senior management there and delegates and the company have made it clear that they will do whatever it takes to comply to the standards and provide a safe working environment and it seems to be a less of a problem in terms of resolving things from that location.

**** STEVEN DIXON XN MS CHARLSON
PN2065

Are there any TBMs in operation on Lane Cove?---No, there is not.

PN2066

Will there be?---No, it's a road headed job. I did also speak to Tony Maher who is the president of our mining division about this issue and he said that they have not met any resistance in terms of complying within the coal industry so far.

PN2067

Did you mean the silica standards have any relevance to coal mining?---In terms of stone dust and so on, yes.

PN2068

Thank you, I will adjourn for 10 minutes.

<SHORT ADJOURNMENT [4.12PM]
<RESUMED [4.28PM]
<CROSS-EXAMINATION BY MS MCKENZIE [4.28PM]

PN2069

THE COMMISSIONER: Ms McKenzie?

PN2070

MS McKENZIE: Thank you, Commissioner. Mr Dixon, you were asked some questions about the email that you received from Peter English and you said that the only information that Mr English was provided with was a copy of the NOHSC Standards and a copy of each of the two Pickford Ryder Reports and your business card is that correct?---That's correct.

PN2071

Neither information was given to him at all by you?---No.

PN2072

Or the CFMEU?---No. Not that I know of, no.

PN2073

He says in his email at paragraph 1:

PN2074

The workers' concerns about the serious OHS breaches that THJV intend to maintain should be addressed.

PN2075

What information did he have about what the concerns were?---I spoke to him.

PN2076

So you supplied other information to him verbally?---I gave him the written information and then I gave him an explanation as to what the union's view was and what the workers' concerns were.

PN2077

So you provided him with a briefing about the union's concerns and what you believed to be the employees or the members concerns?---Well, I mean, I apologise if the Commission thought that I simply faxed it off to somebody and this came in return. Obviously, I had to speak to him to ask him if he would do it for a start and explain what our concerns were.

PN2078

So his understanding of that were those that you communicated to him. That's correct isn't it?---Well, I explained to him what the situation was. I provided him with the material that you tabled in this Commission and he went away and considered it all.

PN2079

He didn't visit the site did he?---No, he did not.

PN2080

He didn't interview the company did he?---No, he did not.

**** STEVEN DIXON XXN MS MCKENZIE
PN2081

He didn't interview any employees ever did he?---No, he did not. He simply reviewed the material that the company presented in here from one of, you know, somebody that does the same work as him.

PN2082

You agree don't you, Mr Dixon, that under the EBA it is an obligation on all employees to comply with procedures and requirements of the company concerning safety?---Certainly.

PN2083

And a directional requirement from the company which is directed to ensuring the health and safety of employees is a direction requirement employees are required to comply with. Do you agree with that?---Employees are required in my view to comply with reasonable directions from the company. If they are unreasonable or they don't protect their safety, then they have a legal right to not comply with them.

PN2084

Who do you say determines whether they protect their safety?---Well, it depends on the circumstances. For example, I spoke about lifelines that were erected by someone that wasn't legally qualified to do it - - -

PN2085

Well, let's talk about the wearing of dust masks - - -

PN2086

MS CHARLSON: Commissioner, I object, I think Mr Dixon should be allowed to finish answering the question.

PN2087

MS McKENZIE: Well, I am just trying to keep his answer to a relevant - - -

PN2088

MS CHARLSON: I object, I think it is relevant. Ms McKenzie has asked a question, Mr Dixon is giving the example.

PN2089

THE WITNESS: Can I be allowed to finish my answer?

PN2090

MS McKENZIE: Yes, go ahead Mr Dixon?---On that occasion, the company had employed someone that they claimed had 50 years experience or something in the industry and was an expert on copper dams, had installed himself life lines that even someone that was deaf, dumb or blind would have known were unsafe. They were the worst that workers had ever seen and I think in that situation the workers refused to connect their harnesses to that life line. It could be argued by the company and certainly someone tried to, that they have got to comply with these directions. There attitude was I don't care what you way, we are not hooking our harness up to that because it's not going to save our lives and I see the dust masks as not much different. Different extreme, but this is about workers having the right to challenge the company and say this is not good enough.

**** STEVEN DIXON XXN MS MCKENZIE
PN2091

Do you agree Mr Dixon that if an employee wears a dust mask, and let's put to one side for the moment issues of comfort and perspiration and humidity, if an employee wears a dust mask and it is properly fitted and it is a dust mask that meets Australian Standards, when they are working underground they have a significant introduced exposure to silica dust. Do you agree with that?---In a perfect environment that might be the case, but wearing those types of masks doing the type of work that these people are doing, they won't work.

PN2092

Perhaps if Mr Dixon can be shown the mask that I have shown - - -

PN2093

MS CHARLSON: This is the one that ..... that's the one you want to - - -

PN2094

MS McKENZIE: Well, whichever one you want to rely on, it can be shown?
---You are not going to ask me to put it on?

PN2095

MS McKENZIE: No. I wouldn't subject you to that Mr Dixon.

PN2096

Can I ask you to have a look at the writing, the label on the front of the dust mask?---Yes.

PN2097

Do you see there the symbol P2?---Yes, I do.

PN2098

Do you see over on the right do you see the letters AS?---Yes, I assume that's the symbol for AS-NZS.

PN2099

1716?---Yes, it's Australian New Zealand Standards.

PN2100

And you are familiar with Australian New Zealand Standards aren't you?---Yes, but I can't quote all the numbers.

PN2101

But on the face of it, you would agreed wouldn't you, that if the label is correct the mask has been approved to Australian Standards?---What it indicates to me is that the people that manufacture it are licensed by Australian Standards to use the trademark and they have had a quality checker go through their production process from Australian Standards, which is a private company, and certified that their production processes comply with the Australian Standard requirements.

PN2102

Can I ask you to have a look at paragraph 17 of your statement where you were referring to the mass meeting that was held on 3 March and you say that the meeting was attended by night shift workers who finished their shifts at 6 am. Do you know what time those shifts commenced?---From memory 10 pm the previous night.

**** STEVEN DIXON XXN MS MCKENZIE
PN2103

Are you talking about TBM employees there?---Yes, that's correct.

PN2104

So you say do you that the TBM shift commenced at 10 pm and finished at 6 am?
---That's correct, yes.

PN2105

It was an eight hour shift was it?---Yes.

PN2106

You have said at paragraph 10 of your statement that normal shifts were 11 hours plus one hour travelling. That's correct isn't it?---Sorry, what number did you quote?

PN2107

Paragraph 10, the last sentence?---That's right. That's what the rostered shifts, the shifts the employees traditionally work containing over time is 11 hours, from what I know.

PN2108

I wonder if Mr Dixon could be shown attachment AJ1 which is the attachment to M4 I think which was Mr Jukes' first statement. It's a bundle of shift reports. Mr Dixon can I ask you just to - - - ?---This little industrial relations box down the bottom has some other unusual shading on the top of it. Can you see that?

PN2109

Yes, I don't think you need to worry about that Mr Dixon?---Well, I find that quite confusing as to why it would be different when it's all be generated off the one computer.

PN2110

Mr Dixon, you have said in your statement that after the meeting workers decided that they would make themselves available for eight hour shifts?---That's correct.

PN2111

And to your knowledge are the employees continuing to work eight hour shifts?
---I am advised that employees are doing that if they have concern for their safety.

PN2112

Do you know whether employees are wearing dust masks during the eight hour shifts?---I believe that some are and some aren't.

PN2113

So you are aware of some employees who are working underground during their eight shifts who are not wearing dust masks?---I have certainly heard that from the WorkCover inspector the other day.

PN2114

Are you personally aware of any of your members who are working underground without wearing their dust masks?---I haven't been underground since this started so I can't say that I have physically seen people.

**** STEVEN DIXON XXN MS MCKENZIE
PN2115

Have you made any enquiries about whether they are wearing their dust masks?
---Yes, I spoke to people in different work crews yesterday and certainly work crews are wearing them and complaining, and some blokes are saying that some people aren't because they can't handle it.

PN2116

Do I take it from that that the union itself has not taken any action in relation to ascertaining whether its members are wearing dust masks at all times while they are working underground?---Sorry, what's your question.

PN2117

The question was, do I take it from your answer that the CFMEU itself has not taken any steps to ascertain whether its members are wearing their dust masks while they are working their eight hours underground?---It's certainly true to say that I haven't physically gone down into the tunnel to check what the company is doing.

PN2118

This is the issue which you say poses an imminent risk to the health and safety of your members and you don't know what they are wearing during their eight hours. That's the position here, Mr Dixon. You don't know?---I know that people that I spoke to yesterday are wearing those masks not the masks that Mr Brennan tried to say they were wearing today, and obviously if people ask us for advice we say no matter how uncomfortable they are you need to wear them because you can't rely on this company to look after your safety.

PN2119

You gave some evidence in relation to and I think it was a response to a question from the Commissioner about what you understood to be the work being carried out at the Lane Cove tunnel. Do you remember that?---At the Lane Cove cut and cover.

PN2120

No, the Lane Cove tunnel project, I think the Commissioner asked. Do you remember those questions?---Mm.

PN2121

I think, just so I understand, I think you were asked the question whether TBMs were in use on that project?---That's correct.

PN2122

And you said "No, it's only road head work"?---It's a road head job, yes.

PN2123

And it's correct isn't it that road head work is drilling work?---Yes.

PN2124

And it drills through sandstone?---Absolutely.

**** STEVEN DIXON XXN MS MCKENZIE
PN2125

And it generates dust?---Absolutely.

PN2126

In fact road head machines create more dust than TBMs don't they?---As I understand it, yes. It depends on the configuration and the set up of the machines.

PN2127

And do you know whether the dust levels in the Lane Cove project are below the Australian Standards?---I don't have first hand knowledge of what the readings are. If you do, I would appreciate you giving them to us, but as I made the point when the Commissioner asked me the question, when we speak to the management there we get an entirely different reaction to what we get in respect to your client.

PN2128

Well, you know don't you Mr Dixon that employees on that project are wearing dust masks while they are working underground and they are wearing them for the entirety of the ten hour shifts?---I am aware that some employees are wearing dust masks. I haven't physically visited the site and gone underground so I can't say precisely what is happening.

PN2129

And you don't know what the actual levels are on that project, is that right?---I haven't seen any reports that would indicate what the levels are.

PN2130

So although the Standards came in on 1 January, you are not concerned to find out whether that project is complying, is that right?---I find that question quite offensive. If your client would show even the slightest degree of co-operation then may be instead of us wasting our time here with all this legal mumbo jumbo, we could be out doing our job properly and protecting our members, but instead once again we raise what, you know, should be quite a reasonable issue and we get the typical response from your client that we always get on safety matters. Litigate, don't co-operate, just say to them this is the way it is, if you don't like it bad luck.

PN2131

And that's what this is all about isn't it? It's not about an imminent ..... safety with your members. It's about the attitude you believe the company has towards you?---It's not towards me, it's towards the people that unfortunately will suffer the consequences. It's about the people that have had their limbs broken, it's about the people that have tendons torn out of their bodies and have been carried back in some cases to the side shed so that they can cover it up.

PN2132

It's not about dust risk is it Mr Dixon?---Of course it is, it's about an imminent risk that when they breath the silica that's it. There is no second chance. I mean, you know, there has been plenty of people stood in places like this, with asbestos and done the same sort of apologetic crap and the consequences are the families are without people because the boss didn't want to spend the money, and it's the same here. If somebody breathes in silica because they don't want to spend the money, then in 20 years time a percentage of the work force potentially are going to die. So, it doesn't get much more imminent then that.

**** STEVEN DIXON XXN MS MCKENZIE
PN2133

Thank you, Mr Dixon. I have got no further questions Mr Dixon.

PN2134

MS CHARLSON: No questions thank you, Commissioner.

PN2135

MS CHARLSON: Thanks, Mr Dixon, you are excused.

<THE WITNESS WITHDREW [4.51PM]

PN2136

THE COMMISSIONER: Ms Charlson?

PN2137

MS CHARLSON: Commissioner, I do have two other witnesses who I would like to present evidence from fairly briefly. I don't know whether you want to try and do that today.

PN2138

THE COMMISSIONER: I do.

PN2139

MS CHARLSON: You do, okay. I call Mr Jay Eastley.

<JAY EASTLEY, AFFIRMED [4.51PM]
<EXAMINATION-IN-CHIEF BY MS CHARLSON

PN2140

MS CHARLSON: Mr Eastley, who are you employed by?---Thiess Hochtieff.

PN2141

And what do you do for them?---I started off as a dogman rigger and then went to tunnelling and then a leading hand under the TBM and on the safety committee.

PN2142

You are on the safety committee, what's your role on that safety committee?---I am the safety member for the TBM and they tell me their problems and I take it to the committee.

PN2143

Where do you predominantly carry out your work?---I carry it out on the bolting deck.

PN2144

And where is that?---It's at the front of the machine right behind the head where we hold up the roof.

PN2145

And is it above ground or below ground?---It's below ground.

PN2146

Can you explain to me what the conditions are like below ground?---When we are out bolting up there, there is a heap of different conditions from coming to a bad dike where there is a lot of water coming from the roof to coming to bad ground where the roof falls in. We can be PRL 2 to PRL 5, to putting up from cable bolts to short bolts and we work one of the hardest of the machine, we bust our hump.

PN2147

Commissioner, do we need any elaboration on some of those technical terms?

PN2148

THE COMMISSIONER: No.

PN2149

MS CHARLSON: Can you describe the temperature under ground?---On the bolting deck it's furthest away from the ventilation that's the hottest. We use a ventura up there to get the cold air to us and which is just the same air that is in the tunnel, it's pushed up to us, it comes anywhere between 20 to 30 degrees I'd say and it's very hot. When we put water on the roof to spray down the mud or dust or sandstone it hits the motors on the machine and it creates steam so if it creates steam it must be pretty hot.

PN2150

Can you tell me roughly what degrees celsius you would estimate the temperature to be?---At least 30 degrees celsius and that's without the humidity.

**** JAY EASTLEY XN MS CHARLSON
PN2151

And can you describe the nature of the labour that you do?---There would usually be between 3 to 4 fellas on there and we don't - - -

PN2152

Upon where Mr Eastley?---On the bolting deck and we don't stop, we have an offsider. We have one on the controls, one off siding, sometimes he shuffles across. It's the loudest part of the machine, I think it's over about 120 decibels in noise. We wear ear plugs and ear muffs at sometimes and it is hard work. You have got the water sprayers off the bolting deck off the bolting drills. You have the oil sprayers off the drill rigs because it's pneumatic so you need oil in there to lubricate it. We put up anywhere between on a day shift 100 bolts, on a night shift 200 to 400 bolts.

PN2153

Mr Eastley, when were you directed by the company that you had to wear this mask all the time you are working under ground?---About three weeks ago.

PN2154

How have you found that?---Not real good. I cannot communicate properly to my offsider to say up down, shut the jaws. We have had other people on the bolting deck with injuries through lack of communication. Once fella got his thumb nearly chopped off.

PN2155

Can you explain how that happened?---A person jumped on his rig without telling him what he was doing and crushed his thumb. Another person has had a broken arm - - -

PN2156

Was the person who jumped on the rig wearing a mask?---No, that was before this. Another person has broken his arm up there due to a mishap. Yes, I don't know, I wasn't with that crew when that happened. With yelling and screaming all the time up there, you have got to yell and scream to tell the person up down, shut the jaws. You can kind of communicate with your head with a bit of a head wobble here to go up and down. That's about it. It's very hard, hot, I sweat. From the day I get down their until the day I get out I am drenched in sweat and water and I at least when I am down there can drink anywhere up to 5 to 6 litres of water easy, and sometimes I don't go to the toilet, I just straight sweat it out.

PN2157

Can you explain the condition of your mask after you have been working in it for say one hour?---I would take it off about 40 times easy to talk, just to grab it, and I have gloves on and they are wet. I've got to wear gloves because the steels hot or it's got a nick in it and I'll cut my hand. In practical I am probably one of the offenders who probably don't wear it as much as everyone else because I just can't do it. It's unpractical for me to do it.

**** JAY EASTLEY XN MS CHARLSON
PN2158

Can you describe what condition the mask is in after you have worn it for a period of time?---It's wet.

PN2159

How long does it take to get wet?---We drill three holes and it would be wet.

PN2160

How long is three holes in terms of time?---Eight minutes.

PN2161

Do you replace it every eight minutes?---No.

PN2162

How many masks are you given for one shift?---We have a lot of masks down there. We do have masks piled on. We don't have a problem with the mask, but I have had my work force come up to me on my TBM and say look this mask doesn't fit me, the company cannot give me another mask bar that which is just the same thing and they have got a rubber mask. They gave only three of them out to trial it. I think they gave three out on all the machines or two or three just to trial it for a period. It was supposed to be the end of this week. Some machines only got them as of yesterday which is a bit later than never. One of the fellas who is trialling it has problems with it at the moment.

PN2163

What are those problems?---Well, it's a rubber band around his neck when he is on the conveyor deck he sweats, he's got scabs on the back of his neck from it, but his face does not fit the other mask, the legs through the sides.

PN2164

What about people with beards, what are they doing?---Well, people with beards are still working down there. People with goatees, people with mo's are still allowed to work down there, people with half day growth where the thing doesn't work allowed to work down there. I shave only Fridays, which was today. I usually shave at the end of the shift, and I don't shave during the week. There is no need for me to shave, I don't go out, I don't have enough time to go out, I have got work.

PN2165

How many breaks would you get in a shift of say eight hours?---We have one break.

PN2166

How long is that break?---About half an hour.

PN2167

And if you worked 11 hours, how many breaks?---You get two breaks.

PN2168

And how long are those breaks?---About 20 minutes to half an hour.

**** JAY EASTLEY XN MS CHARLSON
PN2169

Mr Eastley, did you have any other concerns or had other people talk to you about other concerns in relation to ..... - - -

PN2170

MS McKENZIE: I object to that. That's just hearsay what other people might say.

PN2171

MS CHARLSON: All right, I will rephrase it. Mr Eastley, do you personally have any other concerns about issues of wearing the masks?---Personally, it is uncomfortable for me personally. I know if I wore that mask for 11 hours non-stop and I did shave I would have a big red mark around my face no matter what. If I went out afterwards I would look life a dickhead. I don't want to be wearing a mask for that amount of time because it will not suit me. I just cannot put up with that. I want to be in this tunnelling industry for a long time and I can't see how wearing a mask for the rest of my life, it will not happen. You will not get people - I reckon I will probably go at least 30 years left in this industry and I know I can't wear a mask for 30 years non-stoop. I have had other people come up to me on the safety committee and say look we think we need more masks in the store. We raised that in a meeting and they have got three masks only. I have worked on other sites where safety gear is always brought as comfortable think so if you have ten different kinds you could try on ten different masks to make it fit good. We only use it for the meantime what we used to wear a mask before as everyone said, we used a mask when we had a blow out of dust. The crew would go to the crib room, two or three fellas would go up and fix the problem, we would stop work. After the problem was fixed we would start again. Now, they want us to wear it all the time. We never used to wear it all the time.

PN2172

Mr Eastley, what are people with glasses doing in respect to wearing masks?---At the beginning of the job until now when we had the problem we brought up to get anti-fog wipes. They wouldn't get them, then they got them. At the beginning of the job we used to have people shot-creting, myself personally I used to shot-crete. I couldn't wear a mask and shot-crete at the same time because I could not see what I am doing. I am not shot-creting with a robot, I am shot-creting by hand so I have got to hold it on the roof. I get the rebound and I am covered in concrete. There is no way I could wear a mask and wear safety glasses at the same time. You can wear a steel wire mesh mask, but you still got to wear glasses underneath it.

PN2173

Have you had the experience of wearing that mask and safety glasses at the same time?---It doesn't work.

**** JAY EASTLEY XN MS CHARLSON
PN2174

Why doesn't it work?---It fogs up.

PN2175

So you can't see?---No.

PN2176

And you need to see?---I need to see.

PN2177

Why is that?---Well, who knows what could happen.

PN2178

Mr Eastley, you are on the OHS committee?---Yes.

PN2179

Have other people come and said things to you about their concerns in relation to the masks?---We have had concerns of my crew. I do get other people of other crews to speak to me. I have brought up with the company that we need to sit in a room and knuckle this out no matter what. We all want to go back to work we do. It's been said that we are waiting for a decision from here to find out what we are going to do next. The company has done some things and they haven't done other things we have asked so we are waiting on a decision.

PN2180

How much money per week would you say you are losing as a result of working eight hour shifts?---I reckon I would be losing at least anywhere up to $900 a week.

PN2181

And why are you prepare to do that?---I want to keep doing this forever, if I don't do this forever I won't be earning the same amount of money.

PN2182

Why exactly?---Well, if the air isn't good now and I keep breathing it, well what's the point of getting good money if I am not going to be living around to spend it.

PN2183

So your concerns are about safety?---Yes.

PN2184

Have you spoken to the company about those concerns and your desire to return to work?---Yes, I have spoken to a few bosses saying that I would really like to sit in a room with the shift bosses, the superintendents and the safety department. If it takes from ten hours to 20 hours to fix it, let's sit and do it, we'll lock ourselves in there until it's done. Personally that's what I want to do, and I know a few other people as well because I really want to get back to work and earn some money. I have got bills to pay. Because I earn good money I finance hard so I have got to pay those bills.

**** JAY EASTLEY XN MS CHARLSON
PN2185

Would you be prepared to go back if the company gives you a guarantee?---Yes, I would, I would go back straight away. I would be there tonight, tomorrow, you know what I mean. May be not tonight because my wife thinks I'm coming home, but you know, I would definitely be back there on Monday or Sunday.

PN2186

Did you say anything like that to someone from the company?---Yes, I told my superintendent, I told - - -

PN2187

Who is that?---Phil.

PN2188

What is his surname?---Phil Aitken.

PN2189

And what did you say to him?---That I would like to return back to work as soon as possible and nut this thing out.

PN2190

Did you say something more?---No, I just said I want to return back and nut this conflict out. I spoke to Christian about it too and he said we all would like to I guess, but we are all waiting on a decision.

PN2191

What decision were they waiting on?---Waiting on today.

PN2192

Mr Eastley, did you attend the safety committee meetings on 21 and 22 February?---No, I was not invited.

PN2193

Who normally invites you to safety committee meetings?---Those two meetings that were held, there was a few people invited from the safety committee, I was on site at that time, I was working on the TBM, some of the boys got a letter to attend, I did not get a letter to attend that.

PN2194

Do you know who the letter was from?---I don't know, from the safety department I guess.

PN2195

Do you know how they chose who would go to the meetings?---No, I don't. I guess it was who was on shift at the time.

PN2196

No further questions, thanks.

<CROSS-EXAMINATION BY MS MCKENZIE [5.04PM]

PN2197

MS McKENZIE: Just briefly, Mr Eastley, you said that one of the concerns you have about wearing the masks under ground is that you can't communicate. What do you mean by not communicate, communicate with who?---I have an offsider who works with me. Say if I am driving the - operating the machine, the rig, he has got to tell me to go up with the dolly, spin it to get it off, to put a steel on, to go up and down to push the bolt to the roof. I have got to tell him to stop if it jams up, I've got to tell him to stop and pull the machine back in case the machine is pulling forward and it's going to break the bolt and flick off. There is a lot of things that we are talking about.

PN2198

You could do that sort of communication with hand signals if necessary can't you?---No. My hands are on the rig, I'm driving the rig. Say if I have got my hand on the dolly here, hand on the bolt to guide it up, I can't wave my hands at all.

PN2199

How do you communicate when you are wearing ear muffs?---We yell.

PN2200

When you are in 120 decibel?---We yell.

PN2201

Even when you are wearing ear plugs and ear muffs?---Yes. When he sees my lips moving, he sees a sign, one of my hands are in the air and that's up down, I've got a mask on and I'm going, he doesn't know what I'm doing.

PN2202

Now you are working eight hour shifts at the moment?---Yes.

PN2203

You are wearing the masks under ground?---Most of the time.

PN2204

How often do you change the mask during a shift?---A lot.

PN2205

How often?---I couldn't tell you. A lot.

PN2206

Well, more than five times?---I would say yes.

PN2207

I have got nothing further. No further questions, Commissioner. Do you want to take my next witness now?

PN2208

THE COMMISSIONER: Just a moment. You are excused Mr Eastley.

<THE WITNESS WITHDREW [5.05PM]

PN2209

THE COMMISSIONER: I am conscious of the time and I am conscious also that even after the witness another witness is going to be ..... for summary summing up. Early today I was contemplating listing this matter for tomorrow to ensure that we keep going because I have taken personal leave on Monday to be in Melbourne for a private matter. Can I perhaps adjourn and speak to Ms McKenzie and Ms Charlson out the back.

<SHORT ADJOURNMENT [5.06PM]
<RESUMED [5.28PM]

PN2210

THE COMMISSIONER: Ms Charlson?

PN2211

MS CHARLSON: Thank you, Commissioner. I call Mr William Fry.

<WILLIAM FRY, SWORN [5.28PM]
<EXAMINATION-IN-CHIEF BY MS CHARLSON

PN2212

MS CHARLSON: Thank you, Mr Fry. Could you please tell me who you are employed by?---Thiess Hochtieff.

PN2213

How long have you worked for them?---Probably 18 months.

PN2214

What do you do for them?---Bolting at the moment.

PN2215

Can you tell me more about what that involves?---Ground support at the head as the TBM cuts the tunnel. Immediately behind where it cuts you support the roof.

PN2216

So what does a ..... have to do?---Putting up bolts, point saving bolts with chemical anchors to hold the ground together. Depending on the state of the ground you may need mesh if it's crumbly ground or shale you need mesh to hold all that up and to keep the profile of the tunnel. Sometimes all we may need is one or two bolts each side.

PN2217

Lately, what have conditions been like?---Comparatively from day to day, hour to hour from metre to metre virtually we had one good week where we, it's already been stated, where we cut almost a world record. Immediately after that we hit shale and that slowed us down quite considerably. Previous to that we went through a dike where we were only doing approximately may be two less than four metres of an 11 hour shift and working harder then what we were doing when we did the almost world record time.

PN2218

How many years experience do you have in this industry, Mr Fry?---In the tunnelling industry, I have worked on one other tunnel previous to this, in the mining industry, in hard rock mines I've got a reasonable amount of experience in that, also in construction.

PN2219

How long have you worked in hard rock mines?---Of and on probably all up about 15 years.

PN2220

When you were working in those mines, did you wear masks?---No, only when we really had to wear masks did we wear a mask because they are hot and humid and this is mining quartz bodies for gold which is 100 per cent silica. We would bore and fire. We would wear a mask when you went back in to the base.

PN2221

What kind of mask?---They were - well we usually had a choice, you know, often cartridge masks or we would have the paper type masks too but they were a better quality then that, they had a rubber seal around the outside as well. You would hose everything down, walls, the muck pile get everything soaking wet. By that time your mask was usually dirty and soaked with water and you just throw it away. Got any dust while you were mucking out after that you immediately hosed it down to keep the silica down. It was very serious in hard rock mines. In fact I got reprimanded once for drilling a hole 300 mil without using water, just one pin hole, I got reprimanded for that because of the dust.

**** WILLIAM FRY XN MS CHARLSON
PN2222

What's the significance of the water?---Sorry?

PN2223

Why do you need the water?---To suppress dust.

PN2224

Can you drill bolt holes without water?---No, definitely not. It's been against the law since year dot. In photographs of the old day's miners having a four gallon kerosene tin with a hose coming down and they had been using a hammer and tap drill, still using water. So for anyone to say that in this industry that you don't need water shouldn't be in the industry.

PN2225

Can you tell me what the conditions are like in the tunnel you are working in now in respect of water?---It's hot and humid, you will come to areas where you get a huge amounts of ground water, it's torrential in some areas.

PN2226

Where is it coming from?---The roof, coming down, ground water. That's when you get, you know, it's usually an indication of bad weather actually, and of course you are soaking wet. Wearing a mask of course it's soaking wet and useless.

PN2227

You have been wearing a mask in those sorts of conditions?---You try to but they are useless.

PN2228

Why is that?---They are wet and you can't breath through them, it's as simple as that.

PN2229

Can you tell me what the temperature is like in the tunnel?---It's very humid, very humid up on the bolting deck.

PN2230

Can you give me a rough estimation of how many degrees celsius you reckon it is?---It's hard to say. It feels something around 30, like with humidity you don't cool down, so it can often feel much hotter then what it is because of the humidity.

PN2231

Mr Fry, you have been wearing this dust mask in these conditions that we have described?---Yes.

PN2232

How have you found that?---They are very uncomfortable. They are difficult, they get wet and covered in dust. People you see wearing them, they have still got the dust mask coming down the side of their nose, so they are really not effective.

**** WILLIAM FRY XN MS CHARLSON
PN2233

Are there any other specific problems you have personally encountered?---Just the breathing and they are uncomfortable, if you want to talk to anybody you have to pull them down, and you put them back on they are out of shape and ..... so virtually if you take them off once you have got to throw it away.

PN2234

Are you able to communicate through them?---You can't communicate through them.

PN2235

Why not, what's the problem?---You can't communicate with your hand over your mouth, it's the same thing.

PN2236

Has that caused you any difficulties?---Well, yes, the harder it is communicate the harder it is to get a message across, you know, like when a machine is going full bore you are going flat out you don't want there to be any miscommunication, you don't want people mistaking what you are doing or what you are saying.

PN2237

What can happen if there is miscommunication?---Well, that's how accidents happen.

PN2238

What sort of accidents would you be concerned about?---Well, Jay's already discussed two of the accidents that have happened.

PN2239

What do you think those have to do with communication problems?---I'm sorry?

PN2240

Why do you think that has to do with communication?---Because if you can't - if you mistake what somebody is trying to tell you then you could do the wrong thing like he might think you are doing one thing and you are doing another thing and when you are operating machinery that's how accidents happen.

PN2241

Mr Fry, how often have you been changing these masks?---When necessary, sometimes you get a bit of use out of them and other times if you are in wet conditions they won't last five minutes.

PN2242

Do you change them every five minutes, what do you do?---We are supposed to according to them.

PN2243

In reality, how often would you say you change it?---Sorry?

PN2244

In reality, how often are you able to change them?---Once again it varies, you know. In reality you can't change them every five minutes because you are working and you are going flat out.

**** WILLIAM FRY XN MS CHARLSON
PN2245

Mr Fry if you changed your mask every five minutes and you say they get wet really approximately every five minutes, is that from sweat by the way or from water?---It can be either, both. With perspiration they last a bit longer than five minutes.

PN2246

If it's water?---If it's water coming down, you know, they are immediately wet.

PN2247

You said that you would need to change them every five minutes, how would that affect production time if you stopped every five minutes to change a mask?
---Affect it quite considerably.

PN2248

Can you give me any more information then that?---Not really, because I have not done a study on it.

PN2249

In your experience how often would you normally be able to pause and change the mask without ceasing production?---It would probably take you a couple of minutes, probably take you a minute to change it I suppose. But you are putting up with the discomfort before you change it and then it really is inconvenient and you do tend to use them probably longer then what they are effective because you don't want to have to go to the trouble of changing them.

PN2250

Commissioner that is sufficient, thank you.

PN2251

MS McKENZIE: No questions.

PN2252

THE COMMISSIONER: Thank you, Mr Fry you are excused.

<THE WITNESS WITHDREW [5.38PM]

PN2253

MS CHARLSON: That is my case Commissioner. I don't know if I want to discuss programming issues now in respect of submissions.

PN2254

MS McKENZIE: I am happy to start with my submissions.

PN2255

MS CHARLSON: Commissioner, perhaps as I have said I would really like the time to prepare written submissions to augment the written submissions I have already prepared. Perhaps if we could hear from the applicant early and then I can respond over the weekend in writing, is that possible?

PN2256

MS McKENZIE: I don't think that is reasonable in the circumstances. This is an application for a 127 order. The company has requested on two occasions interim orders and that application has been opposed on both occasions by the union. The Commission has an obligation to hear and determine the application quickly. The union has had nine days in effect to prepare any submissions that they want to put to the Commission. The balance of convenience lies in the application being determined. Unless the union wishes to consent to an interim order being granted to allow Ms Charlson time to prepare her more full written submissions, we think the Commission should complete the hearing of the matter so that a decision can be given as soon as possible.

PN2257

MS CHARLSON: Commissioner, a great deal of the evidence was put before you today. I don't know how we're meant to prepare submissions on the basis of material that you haven't yet heard. In addition, I think it's entirely a reasonable request for me to be able to take an extra day or two to prepare written submissions under the circumstances. I'm very happy for us to proceed. We have been going from 8.30 til 5.30 tonight. It's now 20 to six. I don't know about Ms McKenzie, but I certainly am feeling a bit tired and not able to do, I think, the best justice to this important case that I could do if I had time to look at it properly. So I would ask again that, I mean, I can get them to you tomorrow, if necessary, but I do think I need a little bit more time than be able to have to do it on my feet now in response to whatever Ms McKenzie may say.

PN2258

MS MCKENZIE: Well, it's our application. We bear the onus. If I'm prepared to go on and put my submissions without an opportunity to have considered the evidence, I hardly see that Ms Charlson is more prejudiced than we are.

PN2259

MS CHARLSON: Well, Commissioner, it's a matter of what you think is important. It is Ms McKenzie's application and she is concerned about her client losing money. But I'm concerned about the welfare of mine. So I would submit to you that I need time to make the submissions properly.

PN2260

THE COMMISSIONER: Ms McKenzie is right that the Commission is bound to act quickly and if it can't, section 127(3) gives the power for the Commission to make an interim order pending the finalisation of the matter. On Wednesday, I declined to issue an interim order because I wasn't satisfied that at that time I had all the facts and whether the Commission had the power or the jurisdiction to issue an order in those circumstances pending today's proceedings. Today's proceedings significantly, I think in one respect, the evidence of Mr Tauriainen - I'm sorry, I can't quite pronounce that correctly - stated that the company is suffering losses of approximately $100,000 per day for the M2 only. The previous evidence of Mr Dubious from WorkCover also significantly stated that WorkCover did not regard the problem - and I don't deny there is a problem - but did not regard the problem as such that WorkCover would issue prohibition notices or improvement notices.

PN2261

WorkCover significantly said that they requested the parties to go away and knock themselves up and try and work it through. I still think that's a very valid proposal. But, notwithstanding that, in the legal sense the balance of convenience certainly does fall in favour of the company in this application to seek interim relief if the matter can't be resolved today and a final decision can't be given quickly. What's your position in terms of interim orders on this occasion, Ms McKenzie?

PN2262

MS MCKENZIE: If we're not able to determine the matter today, then my instructions are to request interim orders. And if it's necessary to put some further brief submissions in support of that, I will. But otherwise, I'm content to rely on the evidence that's called today. But certainly, if we can't resolve the matter and have a decision, then given the extent of the company's losses daily, my instructions are to request an interim order if the matter has to go over for further submissions.

PN2263

MS CHARLSON: Commissioner, I (5:43:29) choice of interim orders and having the matter heard out tonight, I'm happy to stay and do that. I would object to the fact that I think it's going to make it difficult for us to respond properly. But nevertheless, if it's a choice between those two evils, certainly we'll respond tonight.

PN2264

MS MCKENZIE: Well, I would not want to be in a position where we pressed on and heard the matter to finality and then the CFMEU has challenged that on the basis that they weren't given a proper opportunity to put their case. So based on what Ms Charlson has said, I would now be concerned that the CFMEU feels that they are being compelled to go on and if that's the case, we would invite the Commission to make interim orders to protect the position for the company's position and to avoid prejudice for the moment and to program the matter for final hearing so that the CFMEU has every opportunity to put what they want to put on the final determination of the application. But I'm concerned that Ms Charlson, I don't want to be in a position where she's effectively, or the CFMEU is effectively proceeding under protest or having put on record concerns that they would have that they would be prejudiced if they're pressed to go on tonight.

PN2265

THE COMMISSIONER: I don't want to proceed either on the basis that there is any perception of lack of procedural fairness in this matter. It's a very serious question.

PN2266

MS CHARLSON: Well, with respect, I mean the (5:44:51) interim orders is a gun at our heads. We have no choice.

PN2267

THE COMMISSIONER: Well, it's that interim orders are not prejudicial to a final decision.

PN2268

MS CHARLSON: Well, Commissioner, they're prejudicial to my members who've got families and have made plans for the weekend. And we say we'd be working under unsafe conditions. So we say it is prejudicial to us. We feel that if it's a choice between making interim orders and going ahead, it's much far preferable for us to go ahead.

PN2269

THE COMMISSIONER: I'll hear the application for interim orders. And as I said, they are not prejudicial in the longer term sense of a final decision in this matter, which certainly the Commission can't give serious consideration to in the short term. Ms McKenzie.

PN2270

MS MCKENZIE: Thank you, Commissioner. Commissioner, the application for an interim order is put on the basis that the Commission should be satisfied that the balance of convenience favours the granting of interim relief in the form of orders. And in our submission, it should do so if it is satisfied firstly, that industrial action is actually happening, threatened, impending or probably within the meaning of section 127(1). And the position when the company first pressed an interim application was that there were submissions from the bar table about the nature of the action and there was a conflict between the parties as to whether that action constituted industrial action within the meaning of the Act. Since that application for interim orders was first pressed, the Commission has now received some quite extensive evidence and in our submission, the Commission should be satisfied that there is sufficient evidence that there is industrial action occurring within the meaning of the Act to, at the very least, issue interim orders.

PN2271

In particular, we would rely on the statement of Mr Jukes - M4, the first of Mr Jukes' statement, the second statement M8 and the third statement, which I think was marked at M17, which sets out the work that is actually being performed by employees since 3 March, which we say constitutes the commencement of the industrial action. The industrial action takes two forms. The first form is the attendance by employees at stop work meetings, where they leave their normal shift to attend meetings and M4 deals with the first occasion of that which occurred on 3 March and M17, I think, deals with a more recent stop work meeting which took place yesterday morning. Mr Jukes was not cross examined about the stop work meeting yesterday and his evidence about that stop work meeting should be accepted as unchallenged.

PN2272

The second form of the industrial action is constituted by a decision of employees to only offer themselves for work for eight hour shifts. That is contained in Mr Jukes's affidavits, but it is also importantly conceded in Mr Dixon's affidavit where he says, at paragraph 10:

PN2273

Normal shifts are 11 hours plus one hour travelling.

PN2274

And he then says at paragraph 18, his statement:

PN2275

The workers at the meeting decided that they would make themselves available for an eight hour shifts including Saturdays and Sundays.

PN2276

Paragraph 19:

PN2277

The decision of the workers to perform eight hour shifts was reported to Riku, Christian and Anthony Jukes.

PN2278

And he says at paragraph 19 of his statement:

PN2279

Riku returned and said to us words to the effect "We don't believe that the employees have the right to work only eight hour shifts. Anyone who doesn't wear a mask underground will be given official warning".

PN2280

And then having in his affidavit conceded that the employees were, or that the company did not accept the decision of the employees to only work eight hour shifts, he says in paragraph 20 that the delegates and union officials and safety representatives then report it back to the day shift workers who are waiting to start their shifts. They affirmed their decision only to work eight hour shifts until the company rectified the problem and provided a safe work environment. So we rely on Mr Dixon's evidence as evidence of the fact that industrial action, in the form of a decision by employees to work shift arrangements other than those required by the company, has occurred and is occurring since 3 March.

PN2281

The definition of industrial action is contained in section 4 of the Act and it is at sub paragraph (a):

PN2282

The performance of work in a manner different from that in which it is customarily performed or the adoption of a practicing relation to work ,the result of which is a restriction or limitation on or a delay in the performance of the work where relevantly the work is covered by a certified agreement.

PN2283

In our submission, there is sufficient evidence before the Commission to justify the making of an interim order that work is being performed in a manner different from that in which it is customarily performed, Mr Jukes's evidence and Mr Dixon's evidence, and the result of that practice is a restriction, limitation or a delay in the performance of work, which is in Mr Tauriainen - what if I say Riku?

PN2284

THE COMMISSIONER: Just say Riku.

PN2285

MS MCKENZIE: I'm sorry. If I have it in front of my, I'll absolutely get the pronunciation. But in exhibit M16, which deals with the affect on the production and the damage to the company occasioned by the action. We would also say that there is sufficient evidence that the definition in (b) is met a ban, limitation or restriction on the performance of work in the form of employees withdrawing their willingness to work rostered overtime and working eight hours ordinary time finally. There has been a lot of evidence and a lot of debate over whether or not one of the exemptions to industrial action rises in this case, such as to render the conduct of employees, not industrial action within the meaning of the Act. And the relevant provision comes from the definition which says:

PN2286

Industrial action does not include at (g) action by an employee.

PN2287

If the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety and (2) 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 other workplace that was safe and appropriate for the employer to perform. It raises an immediate question, what is the action of the employee which could be subject to that exemption. And when one looks at the relevant action of the employees, it becomes, in my submission, apparent that the definition could simply not apply in the circumstances of the current case because of the action of the employee is not a refusal to work in a particular work area, or a refusal to carry out particular work, the action is a refusal to work more than eight ordinary hours of the work which is required and the refusal to have meal breaks in the crib room underground.

PN2288

So it's not a refusal to perform particular work which poses an imminent risk. It's a decision to not perform the work for the duration of time which the employer has required them to perform. There have been a number of decisions about the meaning of imminent risk to health or safety. If I can refer to, and perhaps hand up two decisions. The first is a decision of Justice Munroe in the Ream Rider Plant Industrial Action Order 2002 print PR 92997O. And the second decision is a decision of Deputy President McCarthy in (5:54:18) Engineering Associates and the (5:54:21) PR 934966 18 July 2003. If I can go first to the Ream decision, Justice Munroe's decision and in particular paragraph 44 of the decision. His Honour has, in the previous paragraphs, referred to the previous wording in the Act about justified industrial action and the fact that that had changed, the wording had changed to imminent risk, and he says at paragraph 44:

PN2289

The exclusion of industrial action about imminent risk to safety from the current definition of industrial action is more restrictively expressed. Regard must be paid to each element of the respective definitions and appropriate weight must be given to each element.

PN2290

His Honour then goes on to refer to an earlier decision of the Commission and in paragraph 45, where he is referring to some general observations about the nature of justified industrial action, on page 20 about middle of the italicised paragraphs, the quote says:

PN2291

In the circumstances I would read sub section 124(2) of the Act as requiring that for there to be jurisdiction I must first be satisfied that the industrial action was justified by the relevant concerns in a sense that I formed the opinion that the action was reasonable right and proper having regard to the concerns.

PN2292

And then at paragraph 46 of his Honour's decision, he says:

PN2293

These general observation must be modified for the specific context of the new definition.

PN2294

The last state of principal may be paraphrased:

PN2295

It requires that the relevant industrial action be at least based upon the person taking the action, having the genuine and reasonable ...(reads)... Dispute settlement procedures relevant to safety disputes at the site must have been fully complied with.

PN2296

If I can refer now to the decision of Deputy President McCarthy. In paragraph 37, his Honour discusses, in particular, the meaning of imminent risk. It says:

PN2297

Imminent does not mean something that may happen in the future. If the risk is imminent, then there must also be a probability of injury or harm occurring.

PN2298

In relation to use of imminent in the OH and S Act, and the quote's from Justice Franklin:

PN2299

It is in my opinion that for the formation of a justifiable opinion under section 49(1) that the relevant activity involves or could involve the risk ...(reads)... bear possibility that injury or harm of that nature will occur from the activity in question.

PN2300

And then his Honour refers to another decision which, in turn, refers to the definition of imminent from the shorter Oxford English dictionary:

PN2301

The words imminent and serious are accepted by the parties as having their ordinary meaning. Imminent means impending, threateningly, hanging over one's head, ready to overtake one.

PN2302

And then at the end of that quote, over on page nine:

PN2303

The requirement of imminence of injury does not require that the risk of such injury be imminent but rather that the activity connected carries with it something more than that imminent and serious injury is likely to occur.

PN2304

And then at paragraph 42 of his Honour's decision:

PN2305

It is insufficient for there to be a concern. The concern must be a reasonable one. In my view, for a concern to be a reasonable one, it should be demonstrably shown that there are grounds for that concern. The requirement is not dissimilar to the requirement there be reasonable grounds.

PN2306

And then in paragraph 44:

PN2307

Reasonable grounds has been defined as follows: the motive for a person's conduct, or the basis for a state of mind, such as belief or suspicion, where from an objective viewpoint, that motive or basis was just an appropriate in all the circumstances.

PN2308

And then his Honour says:

PN2309

Having a reasonable concern is also not dissimilar to there being reason to believe the requirement I consider is an objective one and requires there to be a basis for that concern to be established by relevant evidence, material and facts that support the contention that the concern is reasonably held.

PN2310

Now, in our submission, the evidence does not go close to establishing, on an objective test, that there is a reasonable basis for employees to believe that if they work beyond eight hours of ordinary time, they will be exposed to an immediate and serious danger or risk of injury to their safety. The evidence of Mr Dubious, the WorkCover inspector, was firstly that no prohibition notices or improvement notices had been issued to the company, but also that the wearing of dust mask is uncomfortable. The evidence of Mr Dixon is that employees are concerned because the wearing of masks is impractical. And two of the employees have given evidence that they don't like wearing the masks. The evidence of Mr Brennan is that if masks are worn, the exposure of employees to the silica dust is reduced by a factor of 10, as against to whatever the reading is in the air outside.

PN2311

Now, the evidence also is that employees have been advised by the company that it is the company's view that if employees perform the work wearing their dust masks, there is no risk or threat to their safety. And if I can just, I think it's in five - M5 which Mr Tauriainen says he was the author of and he says that this was provided to employees at a tour box meeting and it's a workforce update, air quality and ventilation. M5 communicates what the company has committed to do, and it says:

PN2312

THJV is providing safe workplace under the OH and S Act and the workforce including sub contractors are requested to work their normal roster shift hours underground. THJV underground workers are requested to wear dust masks and this is subject to disciplinary procedures as per EBA procedures.

PN2313

Point three:

PN2314

Workers are not exposed to respirable silica dust levels above the Australian standard while wearing the dust mask and breaks can be taken underground, dust masks can be taken off during the breaks.

PN2315

Now, that information has been communicated to all employees on a daily basis. The same communication says:

PN2316

THJV management would like to resolve this dispute in accordance with the agreed safety and disputes procedure and causes employees to assist THJV to achieve a reasonable outcome.

PN2317

So, the employees have been told the measures that have been taken to address the issue. That's also set out in M5. And they have been told and assured specifically by the company that the company is providing a safe place of work and if employees wear the dust masks, they are not exposed to dust levels above the Australian standard. Now, against that clear communication to the employees, there is no evidence that has been produced by the unions which would challenge the correctness of that communication to employees. There has been no expert evidence by the unions such as would call into question the evidence of Mr Brennan, who is the safety manager with some 20 years experience in underground tunnelling and safety issues, or the views of Mr Dubious. In fact, the union relies on Mr Dubious' evidence.

PN2318

But it falls significantly short of establishing that there is some reasonable objective basis for considering that the action taken by the employees is action in response to an imminent risk to health and safety. So in our submission, there is sufficient evidence before the Commission to be satisfied that the jurisdiction to make the order clearly exists. And we say that that's even more clear in the context of making an interim order. In relation to whether the Commission should exercise it's discretion to make an interim order, we would rely on the following. Firstly, the company has suffered some $100,000 loss per day. That evidence was uncontested by the unions. And in the face of these proceedings in the Commission, the industrial action has continued.

PN2319

As recently as yesterday morning, a further stop work meeting was called by the unions. Notwithstanding that this matter was before the Commission and the company was pressing it's application and had sought interim orders on two occasions, the unions continue to call stop work meetings. Now, the stop work meetings can not, on any basis, be characterised as action taken about an imminent risk to health and safety. stop work meetings are a collective form of industrial action to get the unions to communicate to their members. So that form of industrial action is continuing and, in our submission, it demonstrates contempt for these proceedings. And in the face of the industrial action which the company has experienced now for nine days, it clearly weighs the balance in favour of the granting of an interim order. So we rely on the ongoing industrial action and the complete lack of any preparedness on the part of the unions and the members to cease the industrial action and to perform work as required by the company.

PN2320

We also rely on the fact that the WorkCover inspector who came out to the site has found no basis upon which there is an imminent risk to the health and safety of the employees. Mr Dubious' evidence was that if he formed the view that there was any breach of legislation, he clearly had the power to, and would, issue prohibition notices or improvement notices. And, of course, none of those actions were taken. The company relies on the fact that the EBA procedures have not been complied with by the unions prior to the taking of the industrial action. And in the Ream decision, his Honour Justice Munroe clearly identified the compliance with safety procedures as a necessary pre-requisite to any imminent risk, any basis for industrial action being taken on the basis of imminent risk arising.

PN2321

The safety procedures, clause 18 of the EBA, contains a commitment by the parties to ensuring a safe workplace. It contains:

PN2322

A commitment on the part of the employees to comply with all the obligations arising under the relevant legislation standards and ...(reads)... employee shall be responsible for ensuring that their immediate area of work is maintained in a standard of safety required at the site.

PN2323

That's 18.1(c). 18.3(c):

PN2324

All employees must adhere to the obligations of these procedures and requirements.

PN2325

It is clear from M5 that employees have been directed to comply with the requirement to work their ordinary rostered shifts and to wear dust masks the entire time they are underground. They are not complying with the obligation under the safety procedure. Clause 18.5 then deals with the safety procedure, and it is clear from 18.5 that the parties acknowledge or recognise the role and status of OH and S committees established under the Act.

PN2326

The parties accept that the OH and S is the consultative body charged with assisting the outcome of a safe workplace. If a safety problem has been identified in a particular work area, the work area OH and S committee will inspect the area and determine the appropriate action to be taken.

PN2327

Now, Mr Brennan gave evidence about the two meetings which took place with the combined OH and S committees to discuss the issues arising from the Rider and Pickford reports. I think something was sought to be made of the fact that an inspection, as such, was not carried out, although there was no evidence that an inspection would have ascertained anything. The purpose of the meeting was to talk about the testing done by Rider and Pickford and what action should be taken. So it wasn't the sort of situation where a work area had a particular physical defect or problem which an inspection would have assisted. The issue was the need to comply with standards which had been reduced from 1 January and the action needed to be taken in order to ensure that the company complied with that new standard.

PN2328

And Mr Brennan's evidence - and this was not challenged - was that the outcome of the two OH and S combined committee meetings was support for an agreement to the requirement that dust masks be worn. The committee's considered the issue and the committee's agreed on the appropriate measure in accordance with the EBA. There were some cross examination of Mr Brennan about the effect of 18.5(g):

PN2329

Should a safety dispute arise over whether one or more work areas are safe or not the parties agree to the following procedure.

PN2330

And that clearly needs to be read in the context of the sentence immediately preceding it:

PN2331

No employer will be required to work in any unsafe area or situation as determined by the work area OH and S committee.

PN2332

And as Mr Brennan's evidence quite rightly said, there has been no determination by an OH and S work area committee that any area is unsafe or any situation is unsafe. No decision or determination has been made by any OH and S committee that the wearing of dust masks during normal rostered shifts is unsafe. So the procedure provided for in (g) simply doesn't apply because the committees are not in dispute about this issue. The dispute is with the union. As a matter of going to the question of section B - in the interests of time I will be quick - the Commission should have regard then to the fact that the solution proposed, or the requirement proposed by the company, has the support of the OH and S committees.

PN2333

The Commission should also take into account that there has been no evidence from the unions about what other reasonable alternatives would be available to avoid the inconvenience or discomfort of wearing the dust masks, other than some evidence that there was some discussion or suggestion from, I think, Mr Whitehead at a meeting that the company should consider providing more breaks, eight hour shifts and providing more breaks to employees. But the examples that Mr Whitehead gave in his evidence as to why that would be a reasonable approach, or why it was an approach that other employers had adopted, were all examples that were unrelated to underground tunnelling or in the building construction industry and were not necessarily solutions that were considered appropriate or reasonable in relation to exposure to silica dust.

PN2334

None of the examples, I think he said or agreed, concerned silica dust exposure. So there was no evidence that, in the present circumstances of this project, that that was a sensible alternative. And in any event, it only addresses the question of the duration of the time, not the particular hazard. Either working exposed with the dust mask is safe, or it's not. And if it's safe, then the only issue that become relevant after that is whether it then becomes reasonable or comfortable or convenient to take that measure for the duration of the shift. That is clearly an area that the parties could have some fruitful and constructive discussions over. But it's not an issue which has a bearing on whether industrial action within the meaning of the Act is occurring or not.

PN2335

Finally, the Commission should also, in our submission, have regard to the fact that there is a pattern of conduct of employees on this job to take industrial action before they take advantage of procedures provided for under the EBA for resolving industrial disputes without the need for industrial action. And the procedures in the EBA in relation to the resolution of disputes make it clear that the intention or commitment of the parties is to ensure that work continues normally while disputes are being raised. Not for employees to take industrial action and then to want to have meaningful consultation or negotiation over the outcome, but for the parties on a level playing field, without prejudice to their positions, have the discussions beforehand. Ms Charlson suggested that the making of interim orders was a gun to the union's head.

PN2336

The company's had a gun to its head for the last nine days, so it's really a little bit trite for the union to suggest that the company should not press for relief which is available to it quite properly under the Act in circumstances where it has been experiencing industrial action which is damaging it's business for some nine days. And I will curtail the submission in the interest of time. In support of the application for at least interim orders, we would say that the evidence clearly demonstrates that industrial action is occurring and having regard to the discretionary matters that we've referred to, the balance of convenience clearly favours the making of orders, but at the very least the making of orders on an interim basis. And we would press for those orders in the form that I think was provided - I think it's M3 - in that form or as determined by the Commission. If it pleases the Commission.

PN2337

THE COMMISSIONER: Thank you, Ms McKenzie. Ms Charlson.

PN2338

MS CHARLSON: Commissioner, I'd seek a 10 minute adjournment so we can have a look at the cases that Ms McKenzie's given to us. I think Mr Neilson would be providing the response, but if we could just have 10 minutes just to quickly consider what's been put.

PN2339

THE COMMISSIONER: Very well.

<SHORT ADJOURNMENT [6.14PM]
<RESUMED [6.27PM]

PN2340

MR NEILSON: Commissioner, in making the submission with respect to the application for interim orders, the Commission still needs to be satisfied that the jurisdiction is available for the Commission to issue the orders. Now, section 127 details a number of matters that the Commission must pay regard to in deciding whether or not to issue an industrial action order and it relates to whether the industrial action is happening, threatening, impending or probable in relation to work that is regulated by an award or certified agreement which is provided for by section 127(1)(c). Now, there's no issue that there is work that is regulated by an award or agreement.

PN2341

The dispute in this matter relates to whether or not the definition of industrial action is met by the alleged action that has been undertaken by the unions and the employees with respect to this particular matter. The industrial action definition, which is contained at section 4 of the Act, contains an important limitation at subsection (g) relating to action by an employee:

PN2342

If the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety...(reads)... or available work whether at the same or another work place that was safe and appropriate for the employee to perform.

PN2343

Now, in our submission there's been no evidence pressed by the Company that the employees have unreasonably failed to comply with subsection (g)(ii). So the question that needs to be asked and answered, ultimately answered by the Commission is whether or not the action that has been taken by the employees is based on a reasonable concern.

PN2344

Now, that satisfaction still needs to be obtained by the Commission even when determining whether or not it should issue an interim order. Now, the submissions that Ms McKenzie has put on behalf of the Company is that the Commission only needs to be satisfied that the balance of convenience favours the issue of the order. Now, with respect, the Commission must also be satisfied that jurisdiction exists in the first place and it's our submission that that jurisdiction does not exist with respect to this particular matter.

PN2345

In issuing a decision of the other day the Commission made reference to their inability at that particular time to satisfy itself that jurisdiction was available to the Commission to issue the order as was pressed at the end by Ms McKenzie, and in our submission, at the conclusion of the evidence that has been presented in the proceedings today, the Commission cannot satisfy itself that the jurisdiction exists at this very moment and therefore the Commission is not obliged to issue the order that has been sought by Ms McKenzie.

PN2346

Now, in the evidence that's been represented today, we've heard evidence on behalf of the Company from both Mr Jukes and a Mr Brennan. Mr Jukes' evidence goes towards - or so the Company says - establishing that the employees have not been working their ordinary rostered shifts. Now, with the greatest deal of respect to Mr Jukes, under cross-examination his evidence was shaky. He admitted that it was wrong and he admitted that on the two occasions he was in the box. The question that needs to be asked by the Commission is how reliable is the evidence of Mr Jukes and we would submit it's not very reliable at all because, by his own admission, he didn't properly investigate things. He spoke to other people and yet made no reference to them in his affidavits and the shift patterns that he alleged as being true and correct in every particular one moment, were in fact, by his own admission, wrong.

PN2347

So therefore how can the Company claim that the evidence of Mr Jukes should be relied upon by the Commission determining this matter. We would submit it can't and for the Commission to place reliance upon a witness that has provided inconsistent information in deciding to impose upon the unions and the employees an order, in our submission, is an unsound decision for this Commission to make and the importance of the Commission in deciding to issue section 127 orders is an important step. The Commission has, in numerous decisions, clarified the punitive damages that are available to employers as a result of a breach of a section 127 order and the Commission has, on numerous occasions, said and stated that they do not issue section 127 orders lightly. They take into account all of the relevant considerations and then decide whether or not the order should be issued.

PN2348

In our submission the evidence of the employees with respect to this particular matter demonstrates that the action that has been taken, if one even considers Mr Jukes' evidence has been based on a reasonable concern by the employee about an imminent risk to his or her safety. To counter that defence that has been put up by the unions and the employees, the Company has brought evidence from Mr Brennan. Now, Mr Brennan could be considered to be, and in his own words, a safety expert with experience in the tunnelling industry over a number of years.

PN2349

Yet under cross-examination Mr Brennan made several mistakes about the type of work that was being undertaken by the tunnellers. He is supposed to be responsible for ensuring their safety. He didn't even know that when drilling water was used. He said, I don't know. Yet he can give evidence, or so the Company would have the Commission believe, that the systems of work that have been put in place by the Company is a safe system of work that is eliminating the risk of inhaling silicon quartz dust.

PN2350

Now that in our submission is not a reasonable bases on which Mr Brennan has given his evidence. Both Mr Eastleigh and Mr Fry attested to the onerous conditions that the employees are required to work under, they attested to the heat and the humidity that is associated with working in the tunnel, the physical demands associated with working in the tunnel, and then they gave evidence about the impacts that wearing a mask has upon them for, if the Company's application is granted, for some 11 to 12 hours.

PN2351

Now, in the evidence of Mr Fry it's more than likely that the mask gets wet every five minutes, five to 10 minutes, and he'd need to replace it every five to 10 minutes, which slows production down. Is the Company therefore going to come back to the Commission in two weeks' time when employees consistently change their masks and slow production down and say, they're taking industrial action? The issue that we have with respect to this particular matter is that it is not disputed that the slightest bit of silica dust in your lungs could cause any number of diseases. It's not a matter, Commissioner, that employees, if they're consistently exposed to this dust over a 10 year period will attract some sort of disease. It could happen at any moment and therefore it's an imminent risk.

PN2352

Now, Ms McKenzie has stated in her submissions that the employees in taking the action aren't, if you like, working or stopping work completely. They're still working for eight hours. They're just not working overtime. What the employees are effectively trying to do is minimise their risk. They're saying if the Company can't give us a guarantee or at least give us an undertaking that the work that we are going to perform for you is going to be safe, then we want to minimise our risk. And that's a completely reasonable proposition for any employee, any person to take, and for the Company to suggest that their actions are unreasonable, their actions are industrial action within the definition of the Act, we would submit is ludicrous.

PN2353

The importance of that particular submission is that the Commission does have a wide discretion with respect to the issuance of section 127 orders. The general nature of Ms McKenzie's submissions on behalf of the Company would tend to indicate that whatever discretion the Commission has, it is limited. Now, that's simply not the case. The Commission's discretion is wide and the Commission can take into account a number of matters in deciding whether or not it should issue orders in this particular matter. Unfortunately, Commissioner, I don't have a copy of this decision as a result of the late hour, but there was a Full Bench decision which was made up of SDP Marsh, SDP Lacy and Commissioner Larkin involving surprise, surprise, there's two parties in this particular matter, the CFMEU and Thiess which is contained at PR938334, where the Full Bench in that particular case maintained that extreme or extraordinary circumstances are not necessarily required before refusing to issue an order.

PN2354

So the Commission does have an important decision to make as to whether it is going to require employees to expose themselves to silica dust for extensive periods of time. We would submit that the Commission is not obliged to take such a step because it can't satisfy itself to any degree of satisfaction, either on the balance of probabilities or beyond reasonable doubt, that the action taken is not based upon an imminent risk. The employees have submitted that they believe it is an imminent risk. WorkCover has submitted that they believe it is a risk associated with the hot conditions and employees taking off the mask.

PN2355

It's only natural, if you're struggling to breathe, to remove whatever impediment there is to breath freely and the employees are going to do that because the mask is hot, the type of work they're performing results in them sweating profusely and the mask becomes wet and on the evidence of Mr Dixon, it becomes useless, and that was certainly experienced by Mr Dubois when he went down to the tunnel. He said, "I was sweating profusely," and he wasn't even working down there. So this is a WorkCover inspector who is undertaking a tour of the tunnel to have a look at how things are done and yet even he says it was hot, it was very hot, I was sweating a lot. How would the employees, as both Mr Eastleigh and Mr Fry have attested to, not sweat, not get wet and not render the masks completely useless?

PN2356

In our submission there is no balance of convenience in favour of the issuance to he order as requested by Ms McKenzie. Mr Tauriainen in his evidence attests that the Company is suffering losses of $100,000 a day and Ms McKenzie asserts that that was uncontested evidence by the Company. With respect to Ms McKenzie, how can the unions contest such evidence when they don't have available the financial records of the Company. This isn't a proceeding whereby we have time to consider the applicant's case, formulate a detailed reply and file whatever subpoenas are necessary with respect to ascertaining whether the information contained in the affidavits is true and correct.

PN2357

THE COMMISSIONER: Irrespective of the amount of loss, doesn't it indicate that something's happening which is causing a loss, whether it be 100,000 or 100?

PN2358

MR NEILSON: It's important to realise what that loss is, Commissioner, and this is not a case whereby the employees are completely stopping work. They're not saying we're not working at all. What they're saying is we want to minimise our risk. We'll work our ordinary hours and then the Company allege they're not working their rostered shifts up to 11 and 12 hours. Now, in the submissions that were put before the Commission in respect to this matter, one of the things that the Commission should pay regard to is effectively what the Company are doing in our submission is trying to utilise the Commission's orders to enforce a continued breach of their enterprise agreement.

PN2359

Clause 22.2 on any construction, is clear and express. No more than 10 hours in any one shift, and yet the Company doesn't even try to hide the fact in their evidence that they've presented that the shifts are in excess of 11 and 12 hours and the order that they want the Commission to impose upon the employees, they will therefore go and utilise in forcing those employees to work those hours. Is that conduct that should be encouraged by the Commission? It is not. It is conduct that should be discouraged by the Commission.

PN2360

The Commission's proceedings shouldn't be used as a bargaining chip by the Company to whack the employees over the head to get them to stop complaining about safety issues, because as the phrase goes, safety matters, and what matters to these employees is that in 20 or 30 years' time are they going to contract a disease because some company didn't want to lose production for 10 days, or however long is they submit has occurred in this particular matter? The Company needs to satisfy itself that there is no risk to the employees or that that risk is completely minimal to the employees of attracting any disease as a result of their operations.

PN2361

They haven't demonstrated to the Commission, and I don't think Mr Brennan's evidence could be stated as demonstrating to the Commission that that risk has been eliminated by these masks. It hasn't. Mr Brennan doesn't even know what goes on down in the tunnel and yet the Company present Mr Brennan as some sort of insurance bond to ensure that the work undertaken by the employees is safe. How can the Company, let alone the Commission, be satisfied that the industrial action is taken, or as alleged, is taken is not based on an imminent risk to health and safety?

PN2362

The only evidence that should be accepted by the Commission is the evidence of the employees and the evidence of Mr Dixon with respect to his workings with the masks. Mr Brennan, in his evidence, stated that he only knew of three types of - I think it was one mask, the 3M mask and he made a big deal about it. He was very forceful in that evidence, that it was only the 3M mask, but yet you had contradictory evidence from a person who was there yesterday who said, "I was given a completely different mask." So you come back to the inconsistencies in the Company's application in their evidence insofar as they are attempting to assure the Commission and refute the claims of the unions that the action taken is not based upon imminent risk to health and safety.

PN2363

Yet their own safety person can't attest or can't provide evidence about the exact type of mask that's being used. These masks are put up by the Company as minimising risk. The 3M masks, as Mr Brennan said, were the best available on the market that he knew of because he researched them. Yet when Mr Dixon went there yesterday, and whether it was some ploy by the Company to infect Mr Dixon, but Mr Dixon was presented with a completely different mask, a mask that Mr Brennan claims he knows nothing about. So how can Mr Brennan give evidence that the masks that the Company are issuing to the employees are safe? He can't.

PN2364

Therefore the Commission is left in absolutely no doubt that the action that's been taken has been based on an imminent risk to health and safety. Imminent doesn't necessarily mean that if I walk down a particular path I'm going to fall in a hole. It doesn't mean that at all. What it means is that the employees in this case believe they have an imminent risk with continued exposure to this silica dust, because although the disease mightn't manifest for 10, 20 or 30 years, that doesn't mean that it's not imminent at all.

PN2365

People, Commissioner, thought a lot like that about asbestos a number of years ago and we're now seeing the consequences of those types of or that attitude now and we will continue to see it for years and years and years. Families are ripped apart by it and if we adopted the attitude towards safety that we all talk about now, then perhaps the tragedy that is the lives lost as a result of asbestosis would not have occurred. The Commission needs to be careful in this particular matter to ensure that there is absolutely no evidence to suggest that it is based upon an imminent risk to health and safety. There is nothing to suggest that there isn't.

PN2366

The Company bears the onus in this particular case to demonstrate that industrial action is occurring. It bears the onus to demonstrate that the action taken is not based upon an imminent risk to health and safety. They haven't done that and therefore the Commission cannot be satisfied either on an interim basis or a final basis, for that matter, that the orders as pressed by the Company should be granted.

PN2367

The other thing that needs to be taken into account, Commissioner, is that the Company claims that they have lost a significant amount of time and production time as a result of this action and that is having an adverse effect on operations. The Company, on my instructions, has in place a bonus scheme whereby the employees are awarded for efficient production and by reaching certain goals. My instructions are that the employees will this evening reach that bonus.

PN2368

Companies are not in the habit of putting bonuses or bonus targets at such a low level that slack employees will make it. They put it out there acting as an incentive for employees to tray and make it earn that bonus. And yet if it's the dire situation, the dire consequences that the Company are attempting to paint a picture for the Commission with respect to this particular matter, why is it that the employees will this evening, in all likelihood, and certainly the Commission can believe it on the balance of probabilities, reach that bonus?

PN2369

The picture that's been painted of the dire consequences for this Company has been a picture painted to try and taint the Commission's decision making processes with respect to this matter. The facts don't support the picture that's been painted. The facts suggest that the employees are on target to reach that bonus and the employees will reach that bonus tonight.

PN2370

So therefore that part of the Company's application falls away and what is left? There's no evidence to suggest in our submission or evidence that could be reasonably accepted as being true and correct on the basis of the witnesses that have given evidence in this proceeding, that the action taken is not based upon a reasonable concern about an imminent risk to health and safety. The other thing, Commissioner, is that Mr Brennan made a lot of the dust masks and has formed a lot of the proceedings with respect to this particular matter. It was the evidence of Mr Dixon that the dust mask that he was given yesterday, whilst being marked as P2 by presumably someone, was actually a P1 mask on the company that produced it's own specifications.

PN2371

So you have masks being handed out to employees or to visitors, who knows, with the assurance that it is a P2 mask, the higher level mask, the mask that's going to ensure maximum level of security and safety and yet the company that produced the mask says, this is a P1 mask. What else is going on out at the site that we don't know about with respect to these particular masks? I mean, I think a lot has been made about the masks being wet and falling apart. Mr Eastleigh and Mr Fry, in their evidence, talked about the sweat and yet the masks that the Company assure the Commission as being completely safe, the Company doesn't even know what it's issuing. The safety manager doesn't even know the type of masks that's being issued out there. Surely someone with responsibility for safety, where a safety concern has been raised, would go and investigate it, would go and find out what masks were being issued. He hasn't.

PN2372

Those are my submissions, Commissioner.

PN2373

THE COMMISSIONER: Thank you, Mr Neilson.

PN2374

MS McKENZIE: I've got five short points, Commissioner, maybe six. In relation to the masks, whether the masks that are in use are the ones of the type Mr Dixon had or the ones that Mr Brennan had, it is clear that they are at least P1 if not P2. The masks Mr Dixon has is marked P2. The confusion appears to arise, if any does at all, from some colour coding on the outside packaging but that colour coding is not explained, there's no evidence about what that means. On the face of it it's marked P2. Mr Brennan's evidence is that the only masks he's seen on site are P2, but in any event the Pickford Ryder recommendations are only for P1 masks and Mr Dixon's evidence also is that the mask he had on its face, appears to approved to Australian Standards, so I don't think anything really can - any serious suggestion can be put that the masks that are in use are not fit for the purpose for which they are being applied.

PN2375

Secondly, there is nothing about the operation of the bonus scheme or whether an employee is going to earn a bonus tonight or not, which is inconsistent with the evidence of Mr Tauriainen about the loss of production. He could have been asked some questions about how the bonus scheme operates. He wasn't. The fact that employees may earn a bonus does not in itself mean that the Company is losing significant amounts of production. They may be earning a modest bonus when they might otherwise have been earning a very generous bonus. Nothing was asked of Mr Tauriainen about the operation of bonus scheme and no submissions can really be put to him by the Commission to draw any conclusions about that on the basis of the evidence today.

PN2376

The next point, it's suggested that the normal working arrangements are not permitted by the agreement. In our submission clause 22.2 is clearly talking about ordinary time, but even if it's not, we would rely on the paragraph in 22.1 that says that:

PN2377

The parties recognise the flexibility in relation to this agreement is crucial to the project's success. The parties therefore agree that the provisions ...(reads)... The arrangements that have been worked, 11 hour shifts have clearly been worked by agreement since the commencement of the project.

PN2378

So if it's necessary to deal with any allegation that it's not permitted by the agreement, in our submission it clearly falls within 22.1 and reflects an agreement by the parties. Mr Neilson, I think, suggested that we would simply be inviting the Commission to determine the matter on the balance of convenience. I think we dealt with the jurisdictional requirements. In our submission the jurisdiction is clearly there if the Commission is satisfied that industrial action is occurring and it should be satisfied that it's occurring, unless it forms the view that the exception, which is that action is taken as a result of a reasonable concern over imminent risk of health and safety has been met.

PN2379

In a practical sense it's the union that relies on the exemption and it's the union that should bear an onus. But in any event, in our submission, the evidence before the Commission clearly does not demonstrate that the action which is being taken by employees meets the test set out by SDP McCarthy and Munro J in the two cases that I referred to. So the Commission should be satisfied in our submission that there is both jurisdiction to make the order and as a matter of discretion the order should be made. The balance of convenience is a factor we rely on in support of the interim, making of interim orders and it's also a factor we'd rely on going to the exercise of discretion. We absolutely accept we have to satisfy the Commission for jurisdiction and in our submission we have clearly done so.

PN2380

There was a submission that effectively challenged the value of Mr Jukes' evidence and it seemed to arise from the fact that he conceded in cross-examination that some of the figures in his latest statement as to the actual time being worked may have been incorrect. His evidence about what the normal shift times were was not challenged and that should certainly be accepted. That's in exhibit M4. Mr Dixon's own affidavit acknowledges what the ordinary shifts are and that employees are only working eight hours. You don't need Mr Jukes' affidavit or evidence to be satisfied that the employees are working arrangements which are different to the ordinary work arrangements and on that basis the requirement, or the definition of industrial action has clearly been met on the union's evidence alone, but Mr Jukes' evidence should clearly be taken into account as well.

PN2381

Finally, the submission was put that it is not contested in this case that one single action of breathing silica dust poses a risk. With respect, we disagree with that submission and the evidence does not go to that. Can I refer the Commission to exhibit M9 which is the NOHSC Standards, page 5, which arises after the - there are some pages which are Roman numerals numbered first and then the next document is headed Guidance Note on the Interpretation of Exposure Standards for Atmospheric Contaminants.

PN2382

THE COMMISSIONER: Page, sorry?

PN2383

MS McKENZIE: There's some Roman numeral pages first, Commissioner, about ten of those, it goes to Roman numeral viii, then there's another heading Guidance Note on the Interpretation of Exposure Standards and then there's normal numbering thereafter. Page 5 which is headed Introduction, 1.2, and this is describing the exposure standards that we've been debating long and hard:

PN2384

The exposure standards detailed in this publication represent airborne concentrations of individual chemical substances which, according to current knowledge, should neither impair the health of, nor cause undue discomfort to nearly all workers. ...(reads)... over an eight hour day for a five day working week over an entire working life.

PN2385

So the Standards, first of all, are directed at standards which do not represent any risks to health and safety and the exposure standards are set on the basis of the entire working life, eight hour day, five day working week and it goes on to say:

PN2386

The exposure standards do not represent no effect levels which guarantee protection to every worker.

PN2387

1.5:

PN2388

It follows from the foregoing that the exposure standards are not fine dividing lines between satisfactory and unsatisfactory working conditions, but rather that they are best used to assess the quality of the working environment and indicate, where appropriate, control measures are required.

PN2389

And the debate has been, largely, over whether the control measures which the Company requires in order to comply with the Standards are control measures which are either necessary in the minds of the employees or are reasonable, but there can be no suggestion that wearing dust masks underground properly does not protect employees from any risk to safety and health through inhalation of silica dust.

PN2390

Finally on page 9 insofar as there was discussion about the shifts, the exposure duration, 5.3:

PN2391

Where workers have a working day longer than eight hours or unusual shift rotations are in effect the TWA exposure standard they need to be reduced by a suitable factor to ensure adequate work protection. Such factors require specialist consideration and expert advice should be sought, being a specification of modified exposure standards.

PN2392

Mr Brennan's evidence is that expert advice was sought in relation to that. It's from Pickford Ryder and their recommendations have absolutely been adopted and those control measures will ensure adequate worker protection. So on that basis we would say there is no possible room for an inference to be drawn that the actions that have been taken by employees are actions taken in relation to a reasonable concern over imminent risk to health and safety. Those are our submissions in reply, if it please the Commission.

PN2393

THE COMMISSIONER: Thank you. Ms Charlson or Mr Neilson, I asked for submissions on the basis of an interim order but I seemed to have received more than that. Do you intend to put anything further in writing?

PN2394

MS CHARLSON: Commissioner, we prepared some submissions at the beginning of these proceedings which I'm happy to hand to you, written submissions. They don't take into account the evidence, but they were put on the basis of our view of the law in respect of submissions, I'm happy to give that to you now.

PN2395

THE COMMISSIONER: All right.

PN2396

MS McKENZIE: Subject to anything we'd want to say in relation to that I don't think we've really got anything further we could say in relation to the application either, Commissioner. Commissioner, there's also one case I'd like to hand up to you. I don't have much comment on it. It's just in respect of imminent risk. I might just take a moment to find them. I don't intend to speak to the case, Commissioner, I think it speaks for itself.

PN2397

THE COMMISSIONER: All right. Thank you, I'm going to have a short adjournment, no more than 10 minutes.

<SHORT ADJOURNMENT [7.03PM]
<RESUMED [7.14PM]

PN2398

THE COMMISSIONER: I believe I revealed my feelings towards an interim order about an hour ago, but I was prepared to be persuaded otherwise. I have not been persuaded otherwise. Again, as I said earlier, having regard to the evidence of Mr Dubois and also Mr Tauriainen in exhibit M16 I'm satisfied that the Commission has the jurisdiction to issue an interim order at this time. I am satisfied that industrial action within the meaning of the Act is occurring and although it's not the only criteria, I'm also satisfied that on the balance of convenience, the Company is entitled to the injunctive relief sought at least on an interim basis.

PN2399

I will therefore issue an interim order for the duration of one week until 18 March 2005. In the intervening period I will review the transcript and the further material that's been provided and issue a final determination. The order is standard, although the service of the order given the time of the day today, I would just urge the Company to exercise some common sense flexibility about its service and application, as I said, given the time of the day.

PN2400

It goes without saying that I would expect that the parties will negotiate and meet and discuss measures to improve and resolve the practical difficulties of wearing masks that have been clearly identified by the evidence of Mr Eastleigh and Mr Fry. I am one who does not believe that orders necessarily resolve an issue. This is such an issue, and that the underlying reasons which has given rise to the imposition of indications on the hours of work need to be addressed quickly and thoroughly. The Commission now adjourns.

PN2401

MR NEILSON: Commissioner, we need to be heard in relation to the order. The issue of service is a major issue for the unions. Now, whilst we note your comments with respect to the Company exercising common sense, if they don't then the unions are potentially liable for action in the Federal Court and although your comments would more than likely be taken into account by the Company, there is a skerrick that they won't be and given the practical impossibility of the time of night that we're in with respect to service, and noting that it is a Friday evening, the weekend, this Saturday and Sunday, which is tomorrow, we can't - well, we wouldn't submit that we'd be able to practically comply with the order that's being advanced.

PN2402

THE COMMISSIONER: Yes.

PN2403

MS McKENZIE: Can I suggest in relation to that two things, one, that the order say that service on the three unions be constituted by provision of a copy of the order to each of the three representatives of the unions here this evening, and in relation to service on the employees, the Company will take reasonable steps as soon as it can to communicate the terms of the orders to all employees. There's a night shift commencing tonight and the Company will provide, assuming we can get a hard copy, the Company will provide copies of the order to all employees prior to them commencing their work. Now, I don't think there's work on the weekend, other than night shift, tonight and then Sunday night and the Company will take the same steps at the commencement of shift on Sunday night. Thereafter the Company on Monday will communicate the point of the order broadly to the workforce in the normal way, but the orders need to be served on the unions and I think there are representatives of each of the three unions here, so I don't see any difficulty in service on the three unions being met by copies being provided to representatives to the unions tonight and the Company will then take all reasonable steps to bring the content of the order to the attention of the employees.

PN2404

THE COMMISSIONER: Yes. Service of the order in the order that I have - or I intend to issue, provides that step, that secondary step of the order being provided - being served on the officials, and the words are, an officer of each of the CFMEU, AWU and AMWU who has dealings with the employer in relation to any of the employees. That should be sufficient.

PN2405

MS McKENZIE: Well, the only concern I'd have, if service could be regarded as being constituted by provision of a copy of the order to representatives of the unions here this evening, because the Company will have difficulty serving the orders by the fax machines of the registered offices of the unions. Prior experience tells me the CFMEU at least turn their fax machines at 5 pm. It will be difficult to serve the orders to the business addresses, but given that each of the three representatives here are clearly the relevant people responsible for that site, if it can just be clear that service can be met by providing copies of the orders tonight.

PN2406

MS CHARLSON: Commissioner, there's a practical impossibility of us communicating with our members before Monday morning. Mr Dixon has offered to organise a meeting to communicate with them about these orders that have been made, but it's now nearly 7.30 on Friday night. I'll ask that the orders don't apply until Monday and that we be given a chance to communicate with our members about that.

PN2407

THE COMMISSIONER: Do you have delegates on night shift, no? And Sunday night?

PN2408

MR DIXON: There's delegates on all shifts but it's our intention to convene a meeting outside of ordinary hours of work to tell them what's been going on here and communicate the order to them. We're certainly not going to allow the Company to go round serving on people, putting their own spin on it, misinforming them and telling them half truths, or even worse, delivering it to their houses and for Ms McKenzie's benefit, our fax machines don't get turned off at 5 o'clock at night. I mean, why do we have the ability to turn them off because we know who's sending something, I'd say. No, this is childish.

PN2409

MS McKENZIE: I'm instructed that the Company can provide a copy of the order to each of the employees who commence night shift tonight and night shift on Sunday night prior to commencing their shift. Now, I don't think anything needs to be given other than a copy of the order. If it allays Mr Dixon's concerns, I can get instructions as to whether the Company will provide any information other than the order, but I don't see the need for anything other than the order to be provided to them and we'll do that.

PN2410

MR NEILSON: Commissioner, it's a legal document. If an employee is going to be served probably at 10 o'clock in the evening with a legal document that they may not have any idea what it actually means, they're going to want to get advice about it. Where are they going to get that advice? They're not going to trust the Company. It's a practical impossibility. It's not a case where it's 3 o'clock in an afternoon and an afternoon shift is about to start or night shift is starting at 10 o'clock. It's 7.30 on a Friday evening.

PN2411

THE COMMISSIONER: I'm going to make the order effective from 14 March, but it does provide some inconvenience to the Company in the interim, but I think the absence of any more confusion and rancour in the longer term would be much better.

PN2412

MS CHARLSON: Commissioner, in respect of the issue about the mass meeting to discuss this order with the employees, I take it that that has the Commission's approval?

PN2413

THE COMMISSIONER: No, well, it's not for me to approve a mass meeting or otherwise.

PN2414

MS CHARLSON: Commissioner, your acknowledgement that that's an appropriate course?

PN2415

THE COMMISSIONER: It's essential that the employees be advised of the order in a proper and effective means and as I've just indicated, the less rancour about this matter, the better for the future resolution of the matter, even at the expense of a loss of production on two more shifts before Monday.

PN2416

MS McKENZIE: Can I perhaps, in that context given that the Company is now going to lose two more shifts, can I ask for some indication from the unions whether they are going to recommend to their members on Monday at their mass meeting that they comply with the orders, or do we find ourselves back here on Monday, because having lost two more shifts, the orders are not complied with?

PN2417

THE COMMISSIONER: Well, if they're not complied with you won't be coming back here. You'll be going to some other place.

PN2418

MS McKENZIE: In circumstances where interim orders have been provided, it tends to defeat the object of the interim order for the Company now to suffer two more shifts and it was not raised by the unions when we pressed on this evening with the clear understanding that the Commission was going to hear and determine the application for interim orders, no issue was raised three hours ago about any practical impossibility. They have delegates on each shift. We have mobile phones. The union is in communication with its delegates. Its delegates are trained to communication to its employer's union business. I mean, our submission it is not reasonable to raise communication issues as the reason why an order should not take immediate effect tonight when the company has given an undertaking that it will communicate the content of the orders to every employee before they commence their shift?

PN2419

MR DIXON: With all due respect, Commissioner, I can smell a set up and I can see it from a mile off. This is what they're after. They know that people are not going to comply tonight or on the weekend. I mean, they're simply using this as some further excuse to try and make sure that they can continue some path of legal action rather than protecting the safety of their employees.

PN2420

THE COMMISSIONER: Look, I'm not really getting side tracked by conspiracy theories or otherwise. The order will be amended to become effective on 14 March and remain in force until 18 March.

PN2421

MR NEILSON: Commissioner, what time on 14 March?

PN2422

THE COMMISSIONER: Midnight. Sorry, yes, from midnight, from 14 March in the normal sense, the first normal shift to operate on 14 March.

PN2423

MR NEILSON: That's the Sunday night, Commissioner, that prevents the purpose of commencing the order, doesn't it?

PN2424

MS McKENZIE: Well, it gives 48 hours to communicate - - -

PN2425

MR DIXON: There'll be no meeting on Sunday night.

PN2426

THE COMMISSIONER: Look, I asked for a bit of practical common sense about its service given the time of the day here now. I think the amendment I'm prepared to make gives both parties time to make preparations.

PN2427

MS CHARLSON: Commissioner, could I suggest 10 am on 14 March? Just in order so that the night shift is clear and that their situation is not left ambiguous. That would clarity that the Sunday evening shift wasn't caught.

PN2428

THE COMMISSIONER: The normal finishing time for a Sunday evening shift is 8 am on Monday morning?

PN2429

MS McKENZIE: That's inclusive of the overtime, that's right, yes.

PN2430

THE COMMISSIONER: Yes, and I take it that the meeting will be occurring at 8 am on Monday morning?

PN2431

MR DIXON: It will need to be before 10, yes.

PN2432

MS McKENZIE: The tunnel line crew is on site at 6 am. Their normal shift starts at 6 am, tunnel lining, TBMs at 10 am but the tunnel line is 6 am.

PN2433

THE COMMISSIONER: Well, there's going to be some dislocation in the short term, obviously. I'll vary the operative date and issue it in a few moment's time, thank you.

<ADJOURNED INDEFINITELY [7.28PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JOSEPH BRENNAN, AFFIRMED PN661
EXAMINATION-IN-CHIEF BY MS MCKENZIE PN661
EXHIBIT #M9 EXPOSURE STANDARD FOR CONTAMINANTS IN THE OCCUPATION ENVIRONMENTS PN692
EXHIBIT #M10 MINUTES OF MEETING HELD 21 FEBRUARY PN725
EXHIBIT #M11 MINUTES OF MEETING HELD 22 FEBRUARY PN725
EXHIBIT #M12 DOCUMENT HEADED AIRBORNE DUST MONITORING RESULTS CHATSWOOD/EPPING RAIL LINE PN730
EXHIBIT #M13 TOOLBOX MEETING RECORD PN737
EXHIBIT #M14 REPORT FROM AUSTRALIAN INSTITUTE OF OCCUPATIONAL HYGIENISTS PN779
EXHIBIT #M15 EMAIL FROM GARY RYDER FROM PICKFORD AND RYDER RE SUMMARY OF RESULTS PN806
CROSS-EXAMINATION BY MS CHARLSON PN808
EXHIBIT #C5 FAX FROM WORKERS HEALTH CENTRE PN838
THE WITNESS WITHDREW PN1749
RIKU TAURIAINEN, SWORN PN1750
EXAMINATION-IN-CHIEF BY MS MCKENZIE PN1750
EXHIBIT #M16 - AFFIDAVIT OF MR RIKU TAURIAINEN PN1774
CROSS-EXAMINATION BY MS CHARLSON PN1787
THE WITNESS WITHDREW PN1803
EXHIBIT #M17 - FURTHER STATEMENT OF MR JUKES PN1804
ANTHONY JUKES, RESWORN PN1811
FURTHER CROSS-EXAMINATION BY MS CHARLSON PN1811
FURTHER EXAMINATION BY MS MCKENZIE PN1814
FURTHER CROSS-EXAMINATION BY MS CHARLSON PN1821
FURTHER RE-EXAMINATION BY MS MCKENZIE PN1861
THE WITNESS WITHDREW PN1870
RICHARD WHITEHEAD, SWORN PN1874
EXAMINATION-IN-CHIEF BY MS CHARLSON PN1874
CROSS-EXAMINATION BY MS MCKENZIE PN1966
THE WITNESS WITHDREW PN1991
STEVEN DIXON, SWORN PN1992
EXAMINATION-IN-CHIEF BY MS CHARLSON PN1992
EXHIBIT #C8 STATEMENT OF STEVEN DIXON PN1997
CROSS-EXAMINATION BY MS MCKENZIE PN2068
THE WITNESS WITHDREW PN2135
JAY EASTLEY, AFFIRMED PN2139
EXAMINATION-IN-CHIEF BY MS CHARLSON PN2139
CROSS-EXAMINATION BY MS MCKENZIE PN2196
THE WITNESS WITHDREW PN2208
WILLIAM FRY, SWORN PN2211
EXAMINATION-IN-CHIEF BY MS CHARLSON PN2211
THE WITNESS WITHDREW PN2252