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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 17113-1
SENIOR DEPUTY PRESIDENT WATSON
RE2007/2179
s.770(2)(b) - Application for orders by Commission for abuse of system
Australian Building and Construction Commission
and
Construction, Forestry, Mining and Energy Union
(RE2007/2179)
MELBOURNE
10.16AM, TUESDAY, 10 JULY 2007
Continued from 9/7/2007
PN1186
THE SENIOR DEPUTY PRESIDENT: Mr McKeown.
MR MCKEOWN: Your Honour, thank you for the time allowed at the commencement. The matter is proceeding and I would call Joe Brinzi.
<JOE BRINZI, SWORN [10.17AM]
<EXAMINATION-IN-CHIEF BY MR MCKEOWN [10.18AM]
PN1188
MR MCKEOWN: Could you please state for the record your full name and address?---Joe Brinzi (address supplied).
PN1189
Mr Brinzi, have you made a statement in relation to this matter?---Yes, I have.
PN1190
If the witness could be shown this document.
PN1191
Mr Brinzi, is that a copy of your statement?---Yes, it is.
PN1192
Is that a statement dated 4 April 2007?---Yes, it is.
PN1193
It runs for three pages, seven paragraphs?---Yes, it is.
PN1194
Is that your signature on the third page?---Yes.
PN1195
Could I just take you to - it refers to a copy of the - just before that, you refer in paragraph 3:
PN1196
At the end of my interview Inspector Cruse handed me a statement to read.
PN1197
Do you see that paragraph?---Yes, I do.
PN1198
Then in the next paragraph you refer to a copy of the statement as attached and marked JB-A. Would you go to JB-A. Is that a copy of the statement you gave to Inspector Cruse?---Yes, it is.
PN1199
Is that statement dated 22 January 2007?---Yes.
PN1200
Is that your signature at the end of each page of that statement?---Yes, it is.
Your Honour, I tender that statement and the attachments to it.
EXHIBIT #ABCC8 STATEMENT OF JOE BRINZI WITH ATTACHMENTS DATED 04/04/2007
PN1202
THE SENIOR DEPUTY PRESIDENT: Mr McKeown, I don't have JB-A, the statement.
PN1203
MR MCKEOWN: I apologise, your Honour. I can hand up one, your Honour.
Sorry, Your Honour, I'm just adding the exhibit sheets. The copy we've got, we don't appear to have it here. That should contain
all the exhibits.
**** JOE BRINZI XN MR MCKEOWN
PN1204
THE SENIOR DEPUTY PRESIDENT: Thank you for that. I see, that's the whole set there. Thank you.
PN1205
MR MCKEOWN: I've got no further questions, your Honour.
PN1206
THE SENIOR DEPUTY PRESIDENT: Mr Borenstein.
MR BORENSTEIN: Mr Dowling is taking this witness, your Honour.
<CROSS-EXAMINATION BY MR DOWLING [10.22AM]
PN1208
MR DOWLING: Mr Brinzi, your statement identifies that you're the occupational health and safety officer for Grocon Docklands Pty Ltd. Is that correct?---That's right.
PN1209
What position did you hold immediately before that position at Grocon?---I was a foreman for the company.
PN1210
Is this the first occupational health and safety position you've occupied with Grocon?---For the past nine years, yes.
PN1211
Your statement describes some circumstances that took place down at Docklands. I just want to clarify the developments taking place down there. There's a site known as the AXA site. You're aware of that site?---Yes.
PN1212
That's a site in which Grocon or its associated companies are the builder of that site?---That's right.
PN1213
They're the occupier of that site?---That's right.
PN1214
There's another development that you refer to in your material and that's the Victoria Harbour C3-C4 project. Are you aware of that project?---Yes, that's right.
PN1215
It's correct that Bovis Lendlease is the builder at that site?---That's correct.
PN1216
They're the occupier at that site?---That's right.
PN1217
Grocon is subcontracted to Bovis to do work at the Victoria Harbour C3-C4 site?
---That's right.
**** JOE BRINZI XXN MR DOWLING
PN1218
The day in question that you refer to and you give some evidence about, your evidence is that Mr McLoughlin was present at the Victoria
Harbour C3-C4 site?
---That's correct.
PN1219
Not at the AXA site?---Both sites.
PN1220
If I can take you to your statement and to attachment JB-A, and if you turn to the second page of that statement, you refer to Monday, 18 December 2006. Do you see that heading?---Yes, I do.
PN1221
At approximately 8 am I walked over to the Victoria Harbour C3 and C4 project.
PN1222
Do you have that?---Yes, I do.
PN1223
Then at the start of the next paragraph:
PN1224
I noticed Noel Washington and Skinner who I know to be Adrian McLoughlin standing in the middle of the C3 and C4 towers.
PN1225
Do you see that?---Yes, I do.
PN1226
At least at this point you're clear that Mr McLoughlin is at the C3-C4 development?---That's right.
PN1227
Then if you turn the page you'll se paragraph 18:
PN1228
I went down Little Collins Street. I was walking towards two men that I realised were Noel Washington and Adrian McLoughlin.
PN1229
You're still referring to the C3-C4 project there, aren't you?---No, I'm not, no.
PN1230
What I'm putting to you is that Mr McLoughlin was only ever on the C3 and C4 site?---No, he wasn't.
PN1231
Perhaps if I take you back in your statement. If you go back to the previous page you'll see paragraph 12?---Right.
PN1232
There's reference to a phone call from Mr D'Abaco?---That's right.
**** JOE BRINZI XXN MR DOWLING
PN1233
And a reference to Mr Spino Vasilis and Mr Hudson who were at the AXA site?
---Correct.
PN1234
You left the C3-C4 project and returned to the AXA site?---That's right.
PN1235
On that site you've dealt with Elias and Matt and you dealt with those two only?
---The other two as well further down the paragraph.
PN1236
In the same paragraph?---No, the next page, 14 and 15.
PN1237
Yes, paragraph 15 - let's take one step at a time, Mr Brinzi. So at paragraph 13 you're dealing with two persons, Elias and Matt?---That's right.
PN1238
If you go on, you get to paragraph 15, you deal with Mr Setka and Mr Riordan?
---That's right.
PN1239
Those four people you deal with at the AXA Site?---On those two paragraphs, yes.
PN1240
What I'm putting to you is, they are the only four persons at the AXA site. That's correct, isn't it?---No, it's not.
PN1241
You've just described in those two paragraphs what occurred at the AXA site and you've mentioned the four persons, but nowhere in those paragraphs that I've just taken you to do you mention Mr Washington or Mr McLoughlin on the AXA site. That's correct, isn't it?---No, it's not, because on paragraph 17 it indicates I received a phone call from the project manager from the AXA centre project which Little Collins Street is part of our site at the AXA centre project.
PN1242
Let's just concentrate on who you're dealing with and not who other people are dealing with. At the AXA site you only deal with those four people you've described in those two paragraphs. That's correct, isn't it?---I have, yes.
PN1243
At the AXA site you personally did not deal with Mr Washington and Mr McLoughlin?---No, I did.
PN1244
You haven't described it anywhere in paragraph 13 or paragraph 15?---Further down I had after the phone call that I received.
**** JOE BRINZI XXN MR DOWLING
PN1245
What I'm putting to you is that at paragraph 9 and paragraph 10 you deal with Mr Washington and Mr Skinner at the Victoria Harbour development?---Correct.
PN1246
You don't disagree with that. You go to the AXA site and you deal with Elias, Matt, Mr Setka and Mr Riordan. That's correct?---Up on the floors, correct.
PN1247
What I'm putting to you, beyond that you had no dealing with union officials at the AXA site. That's correct, isn't it?---I did have talks with Adrian McLoughlin and Noel Washington at the AXA centre project.
PN1248
Let's go back to the Victoria Harbour site where you first see Mr McLoughlin and Mr Washington?---Sure.
PN1249
You're the only person present when they attend at that development at around 10 o'clock?---That's right.
PN1250
You say there no one from Bovis Lendlease is there and to the best of your knowledge no one from Bovis Lendlease at that time asks
Mr Washington or
Mr McLoughlin for their permit at the Victoria Harbour site. That's correct?
---That's right.
PN1251
Apologies for changing from one site to the other, but we've just dealt with Victoria Harbour. Let's go back to AXA. You say your evidence is that you've dealt with the four officials, Mr Setka, Mr Riordan, Elias, Matt. You then receive a phone call from Mr O'Hara in relation to the Little Collins Street part of the site and you went down Little Collins Street and as you were walking - you noticed two men and as you were walking towards the two men you realised they were Mr Washington and Mr McLoughlin. I just want to clarify, at that point are you walking down Little Collins Street?---That's right.
PN1252
So you're in Little Collins Street?---Bovis site, yes, I was.
PN1253
Let's just answer the question, You're in Little Collins Street?---Correct.
PN1254
And Mr Washington and Mr McLoughlin are in Little Collins Street as well?
---That's right.
PN1255
The footpath of Little Collins Street?---No. Our road, where - that's where all our deliveries - we've actually taken license for Little Collins Street - purposely Collins Street, part of our site. Which is our loading dock within the hoarding line itself.
**** JOE BRINZI XXN MR DOWLING
PN1256
No further questions your Honour.
PN1257
THE SENIOR DEPUTY PRESIDENT: Yes thank you.
PN1258
MR MCKEOWN: No re-examination your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you for your evidence
Mr Binzie, you're excused from these proceedings.
<THE WITNESS WITHDREW [10.31AM]
PN1260
THE SENIOR DEPUTY PRESIDENT: Mr McKeown.
PN1261
MR MCKEOWN: Your Honour, I'd seek to call Mr Anthony Trantino.
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
<ANTHONY TRANTINO, SWORN [10.32AM]
<EXAMINATION-IN-CHIEF BY MR MCKEOWN
PN1263
THE SENIOR DEPUTY PRESIDENT: Please take a seat Mr Trantino.
Mr McKeown.
PN1264
MR MCKEOWN: Could you please state for the record your full name and address?---Anthony Trantino (address supplied).
PN1265
Mr Trantino have you made a statement in relation to this application?---Yes, I have.
PN1266
If the witness could be shown this document please.
PN1267
Mr Trantino, is that a copy of your statement?---Yes, it is.
PN1268
Is that a statement date 5 April 2007?---Yes, it is.
PN1269
Comprising of two pages, five paragraphs?---Yes, it is.
PN1270
And on page 2, is that your signature?---Yes, it is.
PN1271
Could I just take you to - you refer in the beginning of paragraph 2 that you were interviewed by Inspector Murray Furlong. In paragraph 3, you refer to at the end of the interview, "Murray Furlong handed me a statement to read based on the answers I had given him." Do you see that?---Yes, I can.
PN1272
Could you got to AT-A. Is that a copy of the statement that you made on
22 September 2006?---Yes, it is.
PN1273
And is that your signature at the bottom of each page and the statement runs for three pages?---Yes, it is.
PN1274
Have you had an opportunity to read both your statement and the attachment statement that I've just taken you recently?---Yes I have.
PN1275
Are there any amendments or corrections you wish to make to your statement in this application?---No, there isn't.
PN1276
Is that statement true and correct to the best of your knowledge?---Yes, it is.
**** ANTHONY TRANTINO XN MR MCKEOWN
PN1277
I tender that your Honour.
PN1278
THE SENIOR DEPUTY PRESIDENT: I'll mark that - - -
PN1279
MR BORENSTEIN: Your Honour, I have an objection to one part of their document ..... It's to do with the attachment AT-A and it's in paragraph 29 of that document, your Honour. Does your Honour have that?
PN1280
THE SENIOR DEPUTY PRESIDENT: I do.
PN1281
MR BORENSTEIN: You Honour will see in the third sentence that after recounting the statement that was made to Mr Trantino by Mr
McLoughlin,
Mr Trantino proffers his opinion about what he thinks Mr McLoughlin was intending and I object to that. It's speculative and it's
opinion and if they want to ask Mr McLoughlin what he intended, he'll be here to be cross-examined about it. It's not a matter that
this witness can give evidence about.
PN1282
THE SENIOR DEPUTY PRESIDENT: Yes. Mr McKeown?
PN1283
MR MCKEOWN: Your Honour, I would say in terms of the objection, that you can give under section 110(2), you can give appropriate weight to what you might accept from that particular evidence. But it's evidence that - and it doesn't appear to be - the objection raised doesn't appear to be on the hearsay rule, it - even if it was the sub .... test would apply and that it's a statement that's been made. And he's giving evidence in terms of that and in my submission your Honour, is quite, particularly in matters dealing with industrial matters of this nature, that there's no prejudice in terms of that statement being - remaining in the statement.
PN1284
MR BORENSTEIN: Your Honour, it's not an objection about hearsay. We're not objecting to the second sentence where the statement that Mr McLoughlin made is set out. We're objecting to what this man says he believes Mr McLoughlin might have been meaning by it and he has a hypothesis but it's pure speculation and it can't be probative in any sense. It's not a question of weight. Weight can be attached to evidence if it has some probative value. But this has no probative value. If they want to get this material out, the proper course is to put it to Mr McLoughlin. It's not for this man to speculate. I mean, we can all speculate what that might mean. It doesn't take us anywhere.
**** ANTHONY TRANTINO XN MR MCKEOWN
PN1285
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1286
MR MCKEOWN: Your Honour, can I just reply briefly. With respect, it is probative. As my learned friend made absolutely clear yesterday this was all in relation to the conduct of Mr McLoughlin and it is probative in the sense of what this person - the statement that is received by Mr McLoughlin in those circumstances.
THE SENIOR DEPUTY PRESIDENT: Yes. I'll allow the passage to remain and it will be a matter of weight. Mr Trantino's understanding doesn't seem to go to the facts of the matter. Simply that and as a consequence I imagine it would carry little weight. I'll allow it. I'll mark this statement dated 5 April, five paragraphs, one attachment, exhibit ABCC9, that's the statement of Anthony Trantino.
EXHIBIT #ABCC9 STATEMENT OF ANTHONY TRANTINO
MR MCKEOWN: Thank you, your Honour.
<CROSS-EXAMINATION BY MR BORENSTEIN [10.39AM]
PN1289
MR BORENSTEIN: Mr Trantino, we've just been having a discussion about a part of the statement that you signed with the investigators. You've got a copy of it there in front of you. Could you look at paragraph 29?---Yes.
PN1290
You've got that in front of you?---I have.
PN1291
Thank you. You there set out a statement which you say was sent to you by Mr McLoughlin in the second sentence, do you see that?---Yes.
PN1292
There is no reference in the statement that he made to you, is there, to anything to do with a change of government, is there?---No, there wasn't.
PN1293
Where did you get the idea that his intention to give you a hard time had anything to do with a change of government?---That's my understanding.
PN1294
Based on what?---Based on my understanding.
PN1295
Mr Trantino, it would be much more helpful if you're not being smart, but answering the question properly?---I'm not being smart.
**** ANTHONY TRANTINO XXN MR BORENSTEIN
PN1296
So you've got an understanding based on your understanding, is that what you're saying to this Commission?---At the time the statement was put to me, which was over a year ago, and given the way it was said, perhaps, I'm not sure. I'd be speculating if I was to answer the question, put it that way.
PN1297
Was it something that was suggested to you by Mr Furlong as a possible meaning that Mr McLoughlin might have had, that he was going to give you a hard time if the unions got back into power, is that what Mr Furlong suggested to you when he asked you the questions?---It's purely my understanding. It wasn't put to me by anybody else, no.
PN1298
Now, at paragraph 14 of your statement you say that you have personally asked Mr McLoughlin to show you his permit and in the statement it says approximately 10 times, but in the covering statement you've corrected that to say five times. Do you recall that?---Yes.
PN1299
So your evidence is that you asked him to show his permit approximately five times?---Approximately.
PN1300
Yes, and just so we're clear, the reason why you say approximately is because you're not sure of the precise number, it could be more, could be less?---That's correct.
PN1301
And 3 June is one of those days when you say you asked him for the permit, correct?---I asked him on what basis he wanted to enter the site.
PN1302
Did you not ask him for his permit on 3 June?---No, I didn't.
PN1303
Now, going back to paragraph 14, you go on to say that on each occasion Mr McLoughlin has usually replied by saying something to the effect that the industrial environment would change and that he'll remember your face. Now, you say that he usually replied by saying that. Am I correct in deducing from that that he didn't always say that?---Correct, yes.
PN1304
Now, of the five times approximately that you asked him for the statement, can you guesstimate how many of those occasions he did answer in that way?---At least - - -
PN1305
Was it one, was it two?---At least one.
**** ANTHONY TRANTINO XXN MR BORENSTEIN
PN1306
At least one, and can you recall the circumstances of that at least one occasion?
---No, I can't, I'm sorry.
PN1307
Now, can I take you to paragraph 17 of your statement where you say that Mr McLoughlin has never given any written notice prior to him entering the site. "I've received verbal notice on occasion that he intends to enter the site." Is it your understanding that Mr McLoughlin is obliged to give you written notice whenever he seeks to enter the site?---That's correct.
PN1308
And is it your understanding that he's obliged to give you written notice when he seeks to enter the site under section 58 of the
Occupational Health & Safety Act?
---No, it's not.
PN1309
If we go to 3 June Mr McLoughlin sought to enter the site claiming he wanted to enter under section 58 of the Occupational Health & Safety Act. You refused him entry on the site, correct? Now, can you tell me why it is that on that occasion when he was seeking to enter under section 58 of the Occupational Health & Safety Act you refused him the right to enter?---Because he couldn't state the reason on which he wanted to enter under section 58 of the OH&S Act.
PN1310
He couldn't state the issue?---He would not, that's correct.
PN1311
Is it your understanding that he's obliged to do that?---Yes, it is.
PN1312
Where does that come from?---The OH&S Act.
PN1313
Which part?---I don't know off the top of my head.
PN1314
Did you look?---I did, yes.
PN1315
Do you say it's in section 58?---Well, as I said, I don't know the exact location of the clause, but I did read it and that was my understanding.
PN1316
Now, at paragraph 31 you say that Mr McLoughlin didn't provide you with any paper work on this day. What sort of paper work were
you expecting from him?
---I didn't say I was expecting any paper work. I just said I didn't get any.
PN1317
Well, if you weren't expecting any, what's the point of saying you didn't get any? Just recording that you didn't get any?---That's right.
**** ANTHONY TRANTINO XXN MR BORENSTEIN
PN1318
And you didn't expect to get any?---I'm just saying I didn't get any.
PN1319
Is there any suggestion to be implied that you thought that he was obliged to give you some paper work?---I'm not sure.
PN1320
You're not sure?---No, sorry.
PN1321
Now, can I go back, please, to paragraph 24 which is dealing with the events of 2 June. Mr McLoughlin didn't come on the site on 2 June, did he?---No, not to my knowledge.
PN1322
And paragraph 26 - and on 2 June there was an issue raised by the Occupational Health & Safety representative about excessive
overtime being worked, correct?
---Yes.
PN1323
And you had asked the contractors to work an additional two hours on that afternoon, you, meaning your company?---No. The structural systems had asked their employer.
PN1324
Yes, I know, but that was at your instigation, was it not?---No.
PN1325
Would you have a look at the top of the third page, the last sentence in paragraph 24. Is CEA your company?---Yes.
PN1326
"CEA required about two hours overtime to be undertaken in order for this work to be completed." Have I misread that?---No.
PN1327
Well, didn't I just ask you whether your company required the overtime to be done?---Structural Systems wanted their men to work the overtime so the - we wanted the concrete pour to be poured.
PN1328
That's right, and what you've said in your statement is that you - - - ?---But I didn't require - I didn't ask for the overtime to be done. That was up to the subcontractor to determine in order to meet the pour date.
PN1329
So that sentence is wrong? Is it right or wrong?---Yes.
PN1330
It says, "CEA required about two hours overtime to be undertaken"?---If you take it literally, it's wrong, that's right.
**** ANTHONY TRANTINO XXN MR BORENSTEIN
PN1331
How else should I take it? What is the situation?---Structural Systems required the men to work the overtime in order to meet Constructing Engineering's program to have the concrete pour the following day.
PN1332
Okay?---So read it in whichever manner you please.
PN1333
So is the position that your company required a certain stage to be reached on the site by the end of that day?---That's correct.
PN1334
And in order to reach that site, Structural Systems had to work the extra hours?
---That's right.
PN1335
And the employees didn't want to do that and in the end they didn't do that, is that correct?---Which is their prerogative.
PN1336
Yes. I'm not questioning that, but I'm just asking to establish the fact, is that correct?---That's correct, yes.
PN1337
And then that evening, is it correct, that they were contacted and asked to start at 5 am the following day?---I believe so, yes, by Structural Systems.
PN1338
By Structural Systems, I see?---As you can read, yes.
PN1339
I see that, yes, I'm taking it literally. In order for Structural Systems to start at 5 am the following day they had to liaise with you, didn't they, they had to get your permission?---They told us their intention, yes. I believe they did - they didn't ask me, no, not personally. I didn't know anything about it.
PN1340
But they would have had to have asked your company, would they?---Yes. A representative.
PN1341
And they would have had to have gotten a crew?---Yes, yes.
PN1342
And when they were unable to work the extra hours on the Friday evening, was that something that was reported to you?---Yes.
PN1343
Did you then have a discussion about how that would be made up, the time would be made up?---No. I just reiterated that we needed to pour the concrete slab the following day. It's up to them how they wanted to make that happen, whether that be extra men, whether that be starting early. It was up to them.
**** ANTHONY TRANTINO XXN MR BORENSTEIN
PN1344
Was there a particular time on the following day that you had to pour the slab?
---No, as long as it was completed by the following day.
PN1345
THE SENIOR DEPUTY PRESIDENT: Completed by when?
PN1346
MR BORENSTEIN: The following day, sir?---The end of the working day which is - we're only allowed to work until 6 o'clock, according to council regulations.
PN1347
Now, just as a matter of curiosity, on 1 June you say that you came on the site at 7.30 am, this is at paragraph 21?---Yes.
PN1348
And that you prepared a report, an industrial incident report, with Mr Glass at about 9.30 and then you go on to say, "By the time you arrived, Mr McLoughlin had already left the site and that the site was operating normally"?---That's right.
PN1349
Can you just explain to me why you had any part in the preparation of an incident report about a matter that you weren't involved in?---I purely wrote the report with John Glass' interpretation of the events.
PN1350
Is that how it's done on the site, is it?---Yes.
PN1351
That you write all the reports?---Typically, yes.
PN1352
I beg your pardon?---Yes.
PN1353
Now, just going back to paragraph 30 in relation to 3 June, you haven't made mention of the fact that Mr McLoughlin had a conversation with the contractors about - if the contractors were on the site at that time. When I say the contractor, I mean the company, not the workers, and that occurred?---Not to my knowledge.
PN1354
Not to your knowledge. Is it not the case that you were in fact invited to attend a meeting with Mr McLoughlin and the other contractors
and you and Mr Glass - or you told Mr Glass that you weren't going to do that because it didn't involve you?
---I can't recall that, no.
PN1355
You can't recall that?---No.
PN1356
Does that mean that it may have happened and you just can't remember?---It means I can't recall.
**** ANTHONY TRANTINO XXN MR BORENSTEIN
PN1357
So people cannot recall because they say it didn't happen, or when they say they can't recall, what they're suggesting is it might have happened, "but I just can't remember"?---That's right.
PN1358
Mr Glass has made a statement in this matter. Have you read his statement?---A while ago, yes.
PN1359
A while ago?---Not - - -
PN1360
He says that Mr McLoughlin told him that he wanted to have a meeting with you, Mr Trantino, with Mr Glass and with the management from Meridian and Structural Systems. Mr Glass then spoke to you about that, and I'll read to you the statements, this is paragraph 33 from the statement. "I then spoke with Anthony Trantino. We decided that we would not attend the meeting because we believed this was not the appropriate process and Skinner was not the appropriate person for dealing with the problem." Now, you don't remember that?
PN1361
MR MCKEOWN: I'm sorry to interrupt my learned friend. Could I just clarify what statement he's reading from?
PN1362
MR BORENSTEIN: I'm reading from Mr Glass' statement at paragraph 33.
PN1363
THE SENIOR DEPUTY PRESIDENT: The statement - - -
PN1364
MR BORENSTEIN: The attachment to his statement, I think it's JG8. I'm sorry, I should have been more precise.
PN1365
MR MCKEOWN: I might have been incorrect, but if my learned friend could read that paragraph again, it seems to be at odds with something.
PN1366
THE SENIOR DEPUTY PRESIDENT: Paragraph 33, I was following it. I understood Mr Borenstein to be reading that paragraph as it was.
PN1367
MR MCKEOWN: And I just want to clarify we've got the same paragraph.
PN1368
THE SENIOR DEPUTY PRESIDENT: Paragraph 33.
PN1369
MR MCKEOWN: Thank you, your Honour.
**** ANTHONY TRANTINO XXN MR BORENSTEIN
PN1370
MR BORENSTEIN: Finally, Mr Trantino, when you were interviewed by the inspectors did they ask you whether there had been any further dealings with Mr McLoughlin after 3 June 2006 about right of entry?---I'm not sure.
PN1371
You're not sure?---No, sorry.
PN1372
There were in fact further dealings with Mr McLoughlin after 3 June, weren't there, between him and your company?---There would have been, yes.
PN1373
And is it not the case that in fact an agreement was arrived at between the company and Mr McLoughlin about a protocol for future right of entry exercises?---That's what I was told.
PN1374
Yes?---But I wasn't involved.
PN1375
But you would have been told the process?---I was told the process only.
PN1376
And do you recall whether you told the inspectors about that?---I did.
PN1377
You did, and did you ask them why they had not put that in to the statement that they prepared with you?---No.
PN1378
Thank you, I have nothing further.
PN1379
THE SENIOR DEPUTY PRESIDENT: Anything arising, Mr McKeown?
MR MCKEOWN: Yes, your Honour.
<RE-EXAMINATION BY MR MCKEOWN [10.58AM]
PN1381
MR MCKEOWN: Do you recall you were asked questions in relation to paragraph 29?---Yes.
PN1382
Do you recall that?---Yes.
PN1383
And in response you said, in part response to my learned friend you said given the way it was said. Can you just explain to his Honour
what you meant by that?
---Intimidating nature was said, is what I was referring to.
PN1384
And when you say intimidating nature can you tell his Honour what you mean by that statement?---The volume of the voice, the body language, you know, standing face to face.
**** ANTHONY TRANTINO RXN MR MCKEOWN
PN1385
Well, you made that motion, what do you mean by that?---Standing quite close to each other.
PN1386
In terms of, you were also asked questions about paragraph 28, and you responded that you refused entry. Why did you refuse entry?---Because a specific OH&S issue could not be identified to me under which section 58 requires in order to get entry to the site.
PN1387
Now, in terms of also you were cross-examined about paragraph 31 of your statement and you were asked in terms of any paperwork, can you tell his Honour what you mean by paperwork in your reference to that paragraph?---As far as any legal permits.
PN1388
And what do you mean by legal permits?---Permits under the Industrial Relations Act in order to enter the site, an entry permit.
PN1389
All right. In terms of you were cross-examined about this agreement that was reached between your company and the union?---Yes.
PN1390
What does that involve in terms of what are the requirements for Mr McLoughlin? Does he have to produce anything if he enters the site?---He needs - no, he does not.
PN1391
He doesn't, all right. And are you able to say how many times from your own observations since approximately - well, when was this agreement reached between the company and the union?---Sometime ago, I can't tell you the exact date I'm sorry.
PN1392
It would be?---Six months ago at least, possibly more.
PN1393
When were you told about the agreement?---After it was reached.
PN1394
And from your own observations how many times have you seen Mr McLoughlin on your Cecil Street site, say in that period, the last six months, the period which you've referred?
PN1395
MR BORENSTEIN: No, he didn't refer.
PN1396
MR MCKEOWN: All right, I'll rephrase. Since June 2006 how many times from your observations have you seen Mr McLoughlin on site?---Personally?
**** ANTHONY TRANTINO RXN MR MCKEOWN
PN1397
Yes?---Five times approximately.
PN1398
No further questions.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Thank you for your evidence, Mr Trantino, you're excused from these proceedings.
<THE WITNESS WITHDREW [11.03AM]
PN1400
THE SENIOR DEPUTY PRESIDENT: Yes, Mr McKeown?
MR MCKEOWN: Thank you, your Honour. Your Honour, I call Mr John Glass.
<JOHN WILLIAM GLASS, SWORN [11.04AM]
<EXAMINATION-IN-CHIEF BY MR MCKEOWN
PN1402
MR MCKEOWN: Would you please state for the record your full name and address?---John William Glass (address supplied).
PN1403
And, Mr Glass, have you made a statement in relation to this matter?---I have.
PN1404
If the witness could be shown - Mr Glass, is that a copy of your statement?---Yes, it is.
PN1405
And is that a statement that is dated 5 April 2007?---Correct.
PN1406
Comprising of two pages and five paragraphs?---That's right, yes.
PN1407
Now, in paragraph 2 you refer to being interviewed on 28 September 2005 by Murray Furlong, an inspector from the office of the Australian Building and Construction Commissioner, do you see that?---I can, yes.
PN1408
And then you further state that "At the end of my interview with Inspector Furlong he handed me the statement together with two attachments for me to identify." Could you just go to attachment JGA. Is that a copy of the statement taken by the ABCC?---Yes, it is.
PN1409
And you will see it comprises of four pages, 41 paragraphs. Do you see at the bottom of each page it is dated, handwritten date of 28 September. Is that your signature?---Yes, it is.
PN1410
Mr Glass, have you had an opportunity to read your statement recently?---Yes, I read it last night.
PN1411
And are there any amendments or corrections you wish to make to your statement made to this Commission?---No, no changes.
PN1412
I tender that.
PN1413
MR BORENSTEIN: Your Honour, there's one matter that I want to raise please.
PN1414
THE SENIOR DEPUTY PRESIDENT: Yes, certainly.
PN1415
MR BORENSTEIN: It's in the incident report which I'm assuming Mr McKeown wants to tender as part of the exhibit. It's JG1 which is the first incident report, on the third page of the incident report. Does your Honour have that?
**** JOHN WILLIAM GLASS XN MR MCKEOWN
PN1416
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1417
MR BORENSTEIN: The final paragraph reads:
PN1418
CEA were advised during a meeting with the organiser and CFMEU members, the organiser instructed all the CFMEU members to attend the IR or stop work rally on 28 June 06.
PN1419
Your Honour, that's unattributed hearsay and should be excluded from the tender.
PN1420
THE SENIOR DEPUTY PRESIDENT: But it forms part of an existing document does it not?
PN1421
MR BORENSTEIN: Well, for all that, your Honour, if the document is going to go in as evidence of the truth of its contents it's in a no different position than the body of the statement. And if there's a passage in the statement itself which is objectionable objection can be taken to that. What we're saying is that for the purpose of the evidence before the Commission that paragraph should not be treated as evidence. Treat it as deleted for example.
THE SENIOR DEPUTY PRESIDENT: Well, I think I'll treat that as a matter for submission. Plainly it isn't attributed in any way and would carry little weight.
EXHIBIT #ABCC10 STATEMENT OF JOHN GLASS DATED 05/04/2007 WITH ATTACHMENTS JGA, JGB
PN1423
THE SENIOR DEPUTY PRESIDENT: And the second statement?
PN1424
MR MCKEOWN: Mr Glass, have you made a second statement in relation to this matter?---I don't believe I actually have made a formal statement.
PN1425
Could you have a look at this document please? Could you just have a look at that document?---Yes, I'm familiar with it.
PN1426
And it's headed Supplementary Witness Statement of John Glass?---Yes, it is.
PN1427
In terms of that statement have you had an opportunity to read that statement recently?---Not in this amended form, no.
PN1428
All right?---It's the first time I've seen it.
**** JOHN WILLIAM GLASS XN MR MCKEOWN
PN1429
Can you just take your time then. It might be of assistance if, your Honour, I'd seek that also Mr Glass - no, it's all right, your Honour. I'll wait till he's read the statement?---Yes, I've read it.
PN1430
In terms of, is that statement true and correct?---Yes, it is.
PN1431
And are there any amendments or corrections you wish to make to that statement?---No.
PN1432
And in terms of where it's reference to Mr McLoughlin's statement and Mr Gary Stephen's statement and Mr Battaglene's statement, could you have a look at these documents.
PN1433
MR BORENSTEIN: Well, your Honour, perhaps before he's shown documents he should be asked whether he ever saw any statements of the kind that he described in the statement that's being tendered.
PN1434
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1435
MR MCKEOWN: Have you seen documents of the nature described in your supplementary statement?---Yes, I have.
PN1436
All right. Could the witness be shown those documents? Are they the documents that you referred to in your supplementary statement?---Yes, they are.
PN1437
And I might have asked you this before and apologise if I'm repeating the question. Are there any amendments or corrections you wish to make to your supplementary statement?---No, there's not.
PN1438
Is that statement true and correct?---Yes, it is.
Could I ask you to sign and date that statement? If you haven't got a pen we can hand up one. Well, I'll tender it, your Honour, on indications from my learned friends I'll just tender the document.
EXHIBIT #ABCC11 SUPPLEMENTARY STATEMENT OF JOHN GLASS DATED JULY 27
PN1440
MR MCKEOWN: Thank you, your Honour. I've got no further questions.
**** JOHN WILLIAM GLASS XN MR MCKEOWN
PN1441
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Borenstein?
<CROSS-EXAMINATION BY MR BORENSTEIN [11.14AM]
PN1442
MR BORENSTEIN: Have you brought with you an earlier version of that statement that had been previously marked?---No.
PN1443
You made reference to an earlier version and said you hadn't seen this amended version?---Correct.
PN1444
Can you tell us how this version differs from the earlier version?---Yes, there's a few paragraphs, I just changed some of the wording that I was happier with. I just didn't like the way some of the statements were expressed. So the content hasn't changed, it's just the wording.
PN1445
Can you just give us an example that you can remember?---Yes, paragraph 14 I think is one of them.
PN1446
What do you recall you changed there?---I think what was originally written down was, I refer to paragraph 8 of Gary's statement, and I was astonished that he would suggest employees.
PN1447
And you thought that was putting it too highly?---Yes, I thought that was not necessary. I just disagree with it.
PN1448
Okay. So those are the sort of changes that you - - -?---Correct.
PN1449
Okay, thank you. Can I ask you to just have a look at the first of your statements please, that's the one of 5 April and the attachment to it which is the actual statement that you gave to the inspectors. Do you have that?---Yes.
PN1450
At paragraph 21 you say:
PN1451
When Skinner enters the site and creates an industrial problem I complete an industrial incident report.
PN1452
Yes?---Correct.
PN1453
What do you mean by an industrial problem, what were you meaning when you said that?---I mean, it's my interpretation, if there's any sort of unrest on the job that would cause the guys that are working on the job to stop work for example or, yes.
**** JOHN WILLIAM GLASS XXN MR BORENSTEIN
PN1454
Can I help you? Any disruption?---Yes.
PN1455
Okay. And when you fill out the industrial incident report how do you usually go about doing that, what's the process?---We'd make some notes.
PN1456
I want you to talk about what you would do?---Yes, I'd make some notes, just brief handwritten notes, some sort of brief timetable of the events and a description associated with that timetable, and - because the event would be happening in front of your eyes, so I was aware of it, and then we'd formalise it in the form of - - -
PN1457
Now, you've used the word we. I really want to know what you do?---I would formalise it in an industrial instrument as per the one that we're looking at.
PN1458
Okay. And did you fill that one in?---That's not my handwriting, that's Anthony's handwriting, Anthony Trantino's. But my - I'm in agreeance with it, and me and Anthony sat down and drafted it together.
PN1459
Has it been explained to you why it is that you need Mr Trantino to write it out for you?---No, there was no need for Anthony to write it out for me. It was a matter of me and Anthony just sitting down together and he ended up having the pen in his hand.
PN1460
He's told us that it's the usual practice for him to do that, fill out the reports, is that right or not?---It wouldn't be my understanding, no.
PN1461
It wouldn't. All right. Now, if I could ask you to then turn the page to page 3 and paragraph 30. You say that Skinner didn't show you any permits or paperwork at this stage. This is where he'd come onto where you'd seen him in Market Street with Gary Stephen and Martin Bingham and Steve Battaglene, yes?---Yes.
PN1462
This is about 9.40, and you say "Skinner didn't show me any permits or paperwork at this stage." What sort of paperwork was he supposed to show you in your view? Did you have something in mind?---I'll be referring to his right of entry permit.
PN1463
But you've mentioned that separately?---Well, that's what I meant.
PN1464
Is it?---Yes.
**** JOHN WILLIAM GLASS XXN MR BORENSTEIN
PN1465
Are these words that the investigators have suggested you should use?---No, they haven't suggested it, but that's what I meant. I was referring to his permit.
PN1466
But why would you say that he didn't show you the permit when you've told us that you never asked him for it?---Exactly, I never asked for it and he didn't show it to me.
PN1467
When you made this statement with the investigators was the process that they would ask you a question and you would give them an answer?---Pretty much.
PN1468
So in relation to this part of paragraph 30 for example, can I suggest to you that that comes from the fact that they've said to you, did he show you any permits or paperwork at that stage, and you've said not?---That's probably a fair enough statement, yes.
PN1469
That's the way it went in the interview?---Not generally, no. I'd like to think most of these words are my own but, you know, in that case I was talking about his permit.
PN1470
Now, on that morning you understood that there was an issue about the early start, the 5 am start?---Correct.
PN1471
Which was outside the usual working hours for the site? You have to say yes or no because the recording has to take your answer?---Sorry. Could you just ask the question again please?
PN1472
Yes. The 5 am start was outside the usual working hours for the site?---Correct.
PN1473
And 5 am was also outside the prescribed hours under the enterprise agreement?
---Correct.
PN1474
And in order to start earlier it was necessary to get permission from the safety committee, or a committee called something like that, is that so?---No. What I'd say to that is, there's a process of consultation in the agreement we have with the union and sets it out there, and it talks about giving the employees some notice. In that case they were given notice. I'm not sure that they were given notice, the 18 hours notice.
PN1475
Is it 18 hours is it?---I'm pretty sure it's 18 hours, or pretty close to 18 hours. And in my opinion the safety committee were aware of the early start that morning.
**** JOHN WILLIAM GLASS XXN MR BORENSTEIN
PN1476
But it's true to say that there was not consultation with them, they might be aware of it but there was no consultation with them as to whether it should happen or not?---Well, I believe we consulted with at least Martin Bingham, who was on the safety committee. Gary Stephen was involved in those discussions prior to the site ending that day on Friday. Whether Gary in his own mind was aware that we were going to start or proposing to start early or not, Gary would have to answer. But Gary was rung or attempted to be rung by me several times that evening after work concluded, but just to make sure we're all rowing in the same direction, but unfortunately I couldn't get a hold of Gary. The other person that was on the safety committee was a guy called Dave Santilli, who is employed by Structural Systems, and he was definitely consulted because he actually reported for work the following morning.
PN1477
Can I just clarify with you, when you say they were consulted do you mean they were told that it was going to happen tomorrow?---No, I don't mean that.
PN1478
Well, can you explain what you mean by it?---I mean they were involved in discussions with the early start, and there was no telling them that that's the way we're going to start. It was just a process of informing them that we intended to start early. As far as I can recall there was no objections from any of the individuals that are on the safety committee.
PN1479
Now, the slab that was being poured was being done by Structural Systems wasn't it?---Correct.
PN1480
So why was it that you were involved in talking to people about going to work the next morning?---I'm the general foreman on the job and we had a principal contractor, and one of my roles is to liaise with the foremen for all the contractors, and I had discussions in that case with Adam Phillips who was the foreman for Structural Systems on the job, and I spoke to him about speaking to his guys about working both the Friday to 5 o'clock, 10 past five, to try and avoid the early start in the morning as well as, if that wasn't possible, could they start early in the morning.
PN1481
Was it your company that was concerned to keep the job moving along - sorry, I'll rephrase that. Was it your company that was concerned to try and have the two hours worked on the Friday evening to prepare for the pour the next day or was that something the contractors were doing without your input?---No, no, Construction Engineering were definitely involved with that. We're like - we're the principal contractor.
**** JOHN WILLIAM GLASS XXN MR BORENSTEIN
PN1482
You were concerned to try and have it done?---Yes. We were keen to do the overtime that evening, on Friday night to avoid the early start the following day.
PN1483
That couldn't be done so the next day was the alternative?---Correct.
PN1484
On the Saturday, work started early in the morning. Mr McLoughlin didn't turn up until a civilised hour and you saw him talking to Gary Stephen and Martin Bingham and Battaglene and then you say that McLoughlin came to you and said he wanted you and Trantino to come to a meeting with Meridian Structural Systems. Do you recall that? I'm looking at paragraph 31?---Yes. Well, look, that's my statement and it's a long time ago, but yes, that sounds right. Yes.
PN1485
Then you go on in 33 to say that you spoke with Trantino and decided that you wouldn't attend because you didn't think it was an appropriate process and you didn't think it was appropriate to deal with Skinner?---That's right.
PN1486
Both you and Mr Trantino at that point were aware that there was a meeting going to take place between McLoughlin and the two contractors?---I'll just read this. Yes, I think it was more we declined to go to the meeting and there was obviously a meeting held and it became apparent that Vinny and Mick Pope attended that meeting.
PN1487
That's right, but you were aware that the meeting was taking place?---Correct.
PN1488
Then you go on to say at paragraph 36, on the fourth page, that Sam Martino and Pope told you that they'd had the meeting and that McLoughlin and the stewards had conveyed their concerns about the excessive hours worked on the site?---Yes, that's right.
PN1489
Did they also tell you that they'd come to some understanding about that or can you not remember?---Look, I can't recall that.
PN1490
Okay, that's fine. You then go on to say that Skinner left the site at 11 o'clock and you wrote up an industrial incident report?---Yes.
PN1491
It's correct, isn't it, that although Skinner was making a lot of noise and upset about the fact that you had an early start, work
was not disrupted on that day?
---That's right, yes.
**** JOHN WILLIAM GLASS XXN MR BORENSTEIN
PN1492
Whose idea was it to write up the industrial incident report?---To be honest, I can't really recall. I think it was probably a decision that I sat down and probably discussed it with Anthony and we documented it, yes.
PN1493
It wouldn't be your idea because you said you wrote them up when there was disruption?---Well, they're your words.
PN1494
No, they're your words?---I'm saying we decided to write an incident report, given what transpired on that Saturday.
PN1495
Since September you say in paragraph 40 you've seen him on the site on a couple of occasions. That's between June and September, and he's been on site a few more times since then as well, hasn't he?---Yes, he has, yes.
PN1496
In fact, isn't the case that after these events the company actually worked out a protocol for him coming on site?---Yes, they did, yes.
PN1497
That's the basis on which he's been attending when he does attend?---Yes, that's right.
PN1498
Did you tell the inspectors when you gave the statement that an agreement was reached about right of entry between the company and the union?---I can't recall.
PN1499
Can you recall whether the investigators - you'll see in paragraph 40 that you've provided the investigators with information about two occasions when McLoughlin has come on the site. In relation to those two occasions, were you asked by the investigators questions about whether a permit had been shown when he came on site?---Well, based on what I've said there, I'd say they didn't ask me that. I just said I've agreed to let him come on site, in paragraph 40.
PN1500
Yes, I understand that. What I'm trying to do is to reconstruct in my own mind the way in which you would have been interviewed by the investigators in terms of asking a question and getting an answer, then putting it down in the statement. What I want to suggest to you is that in relation to those two occasions, the investigators who were looking for incidents when McLoughlin had come on unauthorised, would have asked you whether or not on those two occasions he was either asked for his permit or refused to show his permit?---I'm pretty sure on my previous statements I stated I never asked him for any permit.
**** JOHN WILLIAM GLASS XXN MR BORENSTEIN
PN1501
You did?---So that stands.
PN1502
All right. I just want to briefly go to your second statement - no, I don't think I'll need to do that. Thank you, I have nothing further.
PN1503
THE SENIOR DEPUTY PRESIDENT: Anything arising, Mr McKeown?
MR MCKEOWN: Yes, thank you, your Honour.
<RE-EXAMINATION BY MR MCKEOWN [11.34AM]
PN1505
MR MCKEOWN: You were asked questions in relation to paragraph 33 of your statement that you gave to the ABCC inspector and in your statement you've said:
PN1506
Skinner was not the appropriate person for dealing with a problem.
PN1507
Why do you say that?---There's a process for - in the agreement we have with the unions for working out dispute resolution and it also states in that process if one of the parties doesn't follow that process then the other party is not duty bound to follow the process and me and Anthony, the project manager, spoke about it. We felt that what transpired on 1 June, which was to do with Skinner entering the site and one of the issues was excessive hours which was raised with Construction Engineering post that meeting, we felt that the stoppage of the job on that morning was unlawful and therefore the process of consultation regarding that matter hadn't been followed so therefore we didn't wish to continue that process with Skinner.
PN1508
In response to a question from my learned friend, you responded, "Skinner making a lot of noise." Can you tell his Honour what do you mean by that statement? It's not in your statement, it's a response to a question put and it was "Skinner making a lot of noise." Can you tell his Honour what do you mean by that?---Could you just ask me that again, sorry. I didn't understand.
PN1509
In response to a question from my learned friend you said, "Skinner making a lot of noise." What do you mean by a lot of noise?---Did I say that, did I?
PN1510
My learned friend has indicated he might have said it. If that's the case - - -
PN1511
MR BORENSTEIN: I did say it.
**** JOHN WILLIAM GLASS XXN MR BORENSTEIN
PN1512
MR MCKEOWN: Well then, I retract that.
PN1513
THE SENIOR DEPUTY PRESIDENT: Very well.
PN1514
MR BORENSTEIN: I'll tell him what I think.
PN1515
THE SENIOR DEPUTY PRESIDENT: You can do that at a break,
Mr Borenstein.
PN1516
MR MCKEOWN: You were asked a question about the - I think it was referred as a protocol. When was that agreement reached on protocol?---I believe - I'll have to check the dates. There was a meeting held with Skinner, Gary Stephen and Brian Comwell and David Seleski and I'm not sure of the specific date. I think it's written here in Skinner's statement somewhere. So that meeting took place and post that meeting it would have been conveyed to me very soon after that that there was a protocol in place.
PN1517
Are you able to say what the protocol - - -?---It was basically to let - that I was to be aware or someone from CE management, so it would have either been me or Anthony Trantino, the project manager, that if Skinner requested to come onto site and we were to find out why he wanted to come on site and he was to confine his activities usually to the amenities areas but he was not to disrupt the site and if we were satisfied that it was an appropriate thing to do, given what was on the job at the time, we might, you know, have safety things going on, we didn't want that occurring, if we were happy with that, that we were to give him permission.
PN1518
You were also cross-examined in terms of paragraph 36 of your statement made to the ABCC inspectors and in paragraph 36 you refer to they had concerns about the excessive hours worked on the site. What do you say about those views expressed to you?---I don't think that the hours that were worked on this job up until that time and post this time have been excessive.
PN1519
On what basis do you say that?---Well, on the basis that I'm on the site all the time and I haven't got the figures in front of me. I think David Seleski had some records up to that time of the hours that had been worked on the site and I can't be specific so I would only be guessing, but I know they in the vicinity of about 48 hours per man per week.
PN1520
When you say 48 hours, how much of that is overtime?---Well, it's pretty much - it's an eight hour day so you could say eight hours of that is overtime.
**** JOHN WILLIAM GLASS XXN MR BORENSTEIN
PN1521
Thank you, Mr Glass, you can be excused.
THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence, Mr Glass, you're excused from these proceedings.
<THE WITNESS WITHDREW [11.40AM]
PN1523
THE SENIOR DEPUTY PRESIDENT: I might take a five minute break.
<SHORT ADJOURNMENT [11.40AM]
<RESUMED [11.49AM]
PN1524
THE SENIOR DEPUTY PRESIDENT: Yes, Mr McKeown.
MR MCKEOWN: Your Honour, I call Mr Geoffrey Hall.
<GEOFFREY PHILLIP HALL, SWORN [11.49AM]
<EXAMINATION-IN-CHIEF BY MR MCKEOWN [11.50AM]
PN1526
MR MCKEOWN: Could you please state for the record your full name and address?---Geoffrey Phillip Hall (address supplied).
PN1527
Mr Hall, have you made a statement in relation to this application?---Yes, I have.
PN1528
If the witness could be shown his statement.
PN1529
Mr Hall, Is that a copy of your statement made in this proceeding?---Yes.
PN1530
Is that a statement that runs for two pages, seven paragraphs?---Yes.
PN1531
Could I just take you to paragraph 3 of your statement there. You refer to being interviewed by an inspector from the office of the Australian Building and Construction Commissioner on 1 September. Do you see that?---Yes.
PN1532
Then further, in the next paragraph you refer to that you requested changes to the statement?---Yes.
PN1533
Could you just go to GHA. Is that a copy of the statement that you refer to? It should only be a matter of four pages in on your document?---Yes.
PN1534
Is that a statement that runs for seven pages, some 75 paragraphs?---Yes.
PN1535
At the end of each page is that your signature?---Yes.
PN1536
It's dated 1 September 2006. Is that correct?---Yes.
PN1537
Have you had an opportunity to read both your statement in this application and the statement that I've just referred you to?---Yes.
PN1538
Are there any amendments or corrections you wish to make to that statement?
---No.
PN1539
Is that statement true and correct to the best of your knowledge?---Yes.
PN1540
I tender that with the attachments, your Honour.
**** GEOFFREY PHILLIP HALL XN MR MCKEOWN
PN1541
MR DOWLING: Commissioner, there are two comments I wish to make about that statement and I'm referring to the statement that's set out as GHA, the exhibit to which my learned friend has just referred. They are firstly, that paragraph 24, where Mr Hall sets out a belief about a direction that may or may not have been made by Mr McLoughlin to Mr Bligh, that's in my submission opinion or speculation or both. The second is at paragraph 69 and on the last of the pages of that attachment there Mr Hall sets out his understanding as to the meaning of some comments made by Mr McLoughlin. Again in my submission that's speculation or opinion. Mr McLoughlin will give evidence, he can be asked what was intended or what was meant by the comments but Mr Hall's understanding, as he sets out there, in my submission, is not probative and speculation and opinion.
THE SENIOR DEPUTY PRESIDENT: Again, those sections of the statement will be a matter of submission and weight and plainly they are speculative and can carry little weight.
EXHIBIT #ABCC12 STATEMENT OF GEOFFREY PHILLIP HALL DATED 04/04/2007
PN1543
MR MCKEOWN: Mr Hall, have you also made a supplementary statement in relation to this matter?---Yes.
PN1544
If the witness could be shown - Mr Hall, is that a copy of your supplementary statement?---Yes, it is.
PN1545
Is that a statement that runs for three pages and some 19 paragraphs?---Yes.
PN1546
And in your statement you refer to the statement of Mr McLoughlin which also referred to as Skinner, do you see that?---Yes.
PN1547
Could you have a look at this? Is this the statement that you're referring to?
---Yes.
PN1548
Mr Hall, have you had an opportunity to read your supplementary statement recently?---Yes.
PN1549
Are there any amendments or corrections you wish to make to that statement?
---No.
Is that statement true and correct to the best of your knowledge?---Yes.
**** GEOFFREY PHILLIP HALL XN MR MCKEOWN
EXHIBIT # ABCC13 SUPPLEMENTARY STATEMENT OF GEOFFREY HALL DATED JULY 2007
MR MCKEOWN: Thank you, your Honour. I have no further questions.
<CROSS-EXAMINATION BY MR DOWLING [11.57AM]
PN1552
MR DOWLING: Mr Hall, if you can go back to your first statement, if you wouldn't mind, and you've identified as part of that statement, GHAA, a statement you made on 1 September of 2006, do you have that?---Yes.
PN1553
It's the first of the exhibits, so it's headed up the top, "Statement in the Matter of Cain Constructions Pty Ltd", the next page, I think. That's it there, yes. That's a statement that you provided to Inspector or Investigator Murray Furlong on or about 1 September 2006?---Yes.
PN1554
And you visited at the premises of the ABCC to give that statement?---Yes.
PN1555
And is it correct that on that day you visited together with Mr Barrett?---Yes.
PN1556
He also, I can tell you, prepared a statement for the ABCC and also on 1 September at their premises, so that to the best of your recollection you both went together?---No, we didn't go together.
PN1557
You didn't attend together?---No. Well, from my memory we attended separately.
PN1558
All right. Investigator Carey gave some evidence in this matter yesterday and he gave some evidence that he was at the taking of this interview with Inspector Furlong. Do you remember Inspector Carey?---Yes.
PN1559
And he's provided some notes that he met with both you and Mr Barrett. You're not sure whether that's correct?---No, I can't remember, sorry.
PN1560
Is it possible that you went together and that the statements were prepared together?---Possible.
PN1561
Now, you'll see there on that statement, the bottom of the first page, there's the heading, Monday, 17 July 2006?---Yes.
PN1562
Now, Mr McLoughlin attended this site on that day, the St Leonard's site on that day?---Correct.
**** GEOFFREY PHILLIP HALL XXN MR DOWLING
PN1563
And he spoke with both you and Mr Bligh on that day?---Yes.
PN1564
And I think the evidence is that he hadn't been on the site before that day, is that your recollection?---Yes.
PN1565
And you spoke with him in the site office?---Yes.
PN1566
And I'm assuming that given that he hadn't been on the site before you showed him where the site office was, or you showed him to the site office?---There were signs to the site office.
PN1567
But he went to the site office with you?---No, I was already in the site office.
PN1568
You went with Mr Bligh?---I don't know. I was already in the site office.
PN1569
You didn't ask to see Mr McLoughlin's permit on that day?---No.
PN1570
Now, the next time Mr McLoughlin visits the site is on 9 August, I think the evidence is that you were already in the site office and he comes to the site office with Mr Bligh?---Yes.
PN1571
And you spoke to him with Mr Bligh in the site office?---Yes.
PN1572
And you didn't ask for his permit on that day either, did you?---That's right.
PN1573
And there was a discussion on that day about a safety walk at the site?---Yes.
PN1574
And you went on a safety walk with both Mr Bligh and Mr McLoughlin?---Yes.
PN1575
The three of you discussed going on the safety walk and the three of you agreed to go on the safety walk?---Yes.
PN1576
Now, as you walked around the site there were some issues or some matters that were raised by Mr McLoughlin on the site?---Yes.
PN1577
And the first of those was that there was some asbestos roofing on the site?---Yes.
PN1578
And that asbestos roofing was brittle and fragile?---I believe it was in good condition.
**** GEOFFREY PHILLIP HALL XXN MR DOWLING
PN1579
Are you saying it wasn't brittle and fragile?---I believe it was in good condition. It was a roof that was being used as a roof.
PN1580
Perhaps if I could show you, just so we're clear on what we're referring to. If I can show you some photographs. Your Honour, I want to take Mr Hall to some photographs that appear in attachment - perhaps the easiest place to locate them is attachment MFB. Do you have MFB, a series of photographs? I notice you've already turned it open?---Yes.
PN1581
You've turned it open to the page you know to be the roof, have you?---Yes.
PN1582
Okay. And that, on my counting, is five photographs in and that's a photograph to the bottom right hand corner it has 9/8/2006, it's a photograph of a roof. There's a sign in the middle of the photograph and that reads, "Warning, keep off, brittle and fragile roof", do you see that?---Yes.
PN1583
Did you put that sign there?---No.
PN1584
Do you know who put that sign there?---No.
PN1585
Now, this was one of the issues raised by Mr McLoughlin and you'll see in the left there's some planks of wood stored on top of the roof, do you see those?---Yes.
PN1586
And one of the issues was that he didn't want it being used as a storage area and he wanted it cordoned off, is that right?---Yes.
PN1587
And that's something that you said you'd deal with?---Yes.
PN1588
I don't need you to look at the photograph any longer, thanks, Mr Hall. There was a second issue. There was a linkway between two parts of the site, what's described as a linkway, do you know what I mean when I say that?---Yes.
PN1589
And that was a linkway, I think the evidence is, it was about three metres off the ground?---Yes.
PN1590
And the second issue raised was that there were some unstable hand rails on that linkway, that's correct?---Okay.
PN1591
That's something that you said you'd rectify?---Yes.
**** GEOFFREY PHILLIP HALL XXN MR DOWLING
PN1592
There was also said to be some kick boards missing in relation to that linkway?
---Yes.
PN1593
And again, that's something that you said you'd rectify?---Yes.
PN1594
You agree with me that the issues identified so far as genuine safety issues?
---Yes.
PN1595
The fourth issue was that there were some kick boards missing on the stairwell, do you recollect that?---No, I don't.
PN1596
Mr Bligh, who has provided some material, will give evidence in this matter says in his statement, "At the northern end of the building Skinner noticed that there were approximately six boards missing" - "six kick boards" - my apologies - "missing on the stairwell." Does that jog your memory?---No, it doesn't.
PN1597
And he says that was a genuine safety concern. Do you agree with me that if those boards were missing, that that again would be a genuine health and safety issue?---Yes.
PN1598
And there was a fifth issue and that was the state of the site shed, is that correct?
---Yes.
PN1599
Is the state of the site sheds something that had previously been an issue?---No.
PN1600
The cleanliness of the site sheds?---No.
PN1601
Perhaps if the witness could be shown, and my instructor will provide him with a copy of attachment MFA this time, an additional set of photographs. This time, Mr Hall, it might be easier if we go from the back because the photograph I want to take you to is nearly in the middle, but closer to the back. If you can count in nine from the back. There's a photograph there of a sign, do you have that?---Yes.
PN1602
It starts, "Put your rubbish in the bin"?---Yes.
PN1603
Then it says, "Back charges will apply if area has to be cleaned again". Did you put that sign up?---No.
PN1604
Do you know who put that sign up?---No, I don't.
**** GEOFFREY PHILLIP HALL XXN MR DOWLING
PN1605
It suggests that there had been an issue about cleaning of the area?---No.
PN1606
It doesn't suggest that to you?---No.
PN1607
Now, there's a reference in it to back charges. Do you know what they are?
---Well, it's a - well, the back charge is a charge that can be put on to either a contract or whoever's at fault if they haven't
done the appropriate thing.
PN1608
And the appropriate thing here is cleaning the area, it seems. Now, the back charges and the cleaning of that area, is that something
that you're in charge of?
---Personally?
PN1609
Yes?---To oversee?
PN1610
Yes?---Yes.
PN1611
So that sign is something that you should know about?---Yes.
PN1612
But you confirm your evidence that you don't know how it got there?---That's right.
PN1613
Now, I've taken you through the inspection you did and the issues that were raised. There was a meeting at the end of that to report back about those issues to the employees on the site, is that right?---There was.
PN1614
And you were present at that meeting?---Yes.
PN1615
Mr Bligh was present at that meeting?---Yes.
PN1616
And Mr McLoughlin was present at the meeting?---Yes.
PN1617
And he spoke about the issues that we've just identified?---Yes.
PN1618
And did he explain that you had agreed to rectify those?---Yes.
PN1619
And did you confirm to those present that you'd agreed to rectify those?---I don't recall that.
PN1620
There's no dispute you had agreed to rectify them?---Yes.
**** GEOFFREY PHILLIP HALL XXN MR DOWLING
PN1621
Now, shortly after that meeting, that report back meeting to the employees on the site, Mr McLoughlin leaves the site but says that he'll come back to see that the rectification work that we've discussed is completed, is that correct?---That's correct.
PN1622
And he arrives back. We're still on the same day, 9 August, he arrives back about 10 am, thereabouts?---That's right, yes.
PN1623
You didn't ask for his permit on that occasion either, did you?---No.
PN1624
Now, I just want to stick with 9 August and I think your evidence is that on 9 August some WorkSafe inspectors attended at the site. Is that right?---That's correct.
PN1625
And they did so in the afternoon?---Yes.
PN1626
And one of the things that they did on the site was also to do a walk around to check the safety of the site?---Yes.
PN1627
And you say in your statement that they only identified one thing, is that right?
---That's correct.
PN1628
Are you sure about that?---Yes.
PN1629
Mr Barrett, who is going to give some evidence in this matter also, as I'm sure you're aware, you know he's filed a statement?---Yes.
PN1630
Have you seen his statement?---No.
PN1631
He prepared some notes at the time. Did you see those notes?---No, I haven't.
PN1632
If the witness could be shown, I'll get my instructor to, a copy of Mr Barrett's statement together with attachment BBA. Now, you'll see there, I think the document you have is a document headed "Witness Statement of Ben Barrett", is that right?---Yes.
PN1633
There's two pages of the statement and then the next, you should have a sheet that says, "Attachment BBA", do you have that in front of you?---Yes.
**** GEOFFREY PHILLIP HALL XXN MR DOWLING
PN1634
Then there's a statement that runs for five pages. I don't need you to look at that for the moment. Then there's a spread sheet. Again I don't need you to look at that for the moment. And then there's the beginning of some notes. Do you see those?---Yes.
PN1635
It has a large number 4 in the top right hand corner?---Yes.
PN1636
If you go to the third page of those, you see in the middle of the page he's photocopied what appears to be a photocopy of a business card from Dorothea Ferguson from WorkSafe?---Yes.
PN1637
And underneath that there's a list of things, it says, "Lift motor room, scaffold, lock to temp, access to link formwork, top
JD stair form work hand rails, bar caps to red starter bars, nail hand rails, yellow tag on basement wiring, base
plate" - some words I can't read - "scaffold." Do you see that list?---Yes.
PN1638
I put it to you that that's a list of things that the WorkSafe inspectors identified when they walked around on that day. Do you agree with that?---Well, it looks like it.
PN1639
So your comment about there only being one issue doesn't appear to be consistent with that list, do you agree with that proposition?---I agree.
PN1640
Now, again on 9 August the WorkSafe inspectors weren't the only inspectors to attend. Inspectors Furlong and Carey attended at the site on 9 August, is that right?---That's correct.
PN1641
And they were on the site, I think, about 10 to four, they arrived at about 10 to four on that day?---That's right.
PN1642
If I can just clarify one thing in relation to the site. The site starts at about 7 am, finishes at about 3.30 pm?---That's right.
PN1643
So they got there about 10 to four. I'm assuming you called them to come to the site?---No, I didn't call them.
PN1644
Did Mr Barrett call them?---He may have.
PN1645
You're not sure?---No.
**** GEOFFREY PHILLIP HALL XXN MR DOWLING
PN1646
Now, I just want to jump you ahead one day to 10 August. Mr McLoughlin attended on that day, 10 August, at about 6.30 in the morning?---Yes.
PN1647
So on what you've said a moment ago, that's about half an hour before the normal starting time?---Yes.
PN1648
And on this day you did ask Mr McLoughlin for his permit?---Yes.
PN1649
It's the first time you've asked him for his permit, though?---That's correct.
PN1650
Is that because Inspector Furlong and Inspector Carey said to you, "If he comes down again you should ask for his permit"?---No.
PN1651
And did you discuss the permit with Inspector Furlong and Inspector Carey?
---No. I discussed - I may have, but I discussed the permit with my project - with my construction manager.
PN1652
And who is that?---John Chambers.
PN1653
And Did Mr Furlong and Mr Carey tell you that one of the things you could do if you came on the site was to request his permit?---I don't recall that.
PN1654
You don't recall that?---No. They may have but I don't recall it.
PN1655
Now, there was a meeting on the morning of 10 August and that meeting Mr McLoughlin held with some of the employees on site?---Yes.
PN1656
Is that right?---Yes.
PN1657
And that started about a quarter to seven, 20 to seven, thereabouts?---Yes.
PN1658
And that finished at about five to seven?---Yes.
PN1659
So again that finished before the commencement of any work on the site?
---That's correct.
PN1660
And that's not a meeting that you were at?---No.
PN1661
No further questions, your Honour.
**** GEOFFREY PHILLIP HALL XXN MR DOWLING
PN1662
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr McKeown?
MR MCKEOWN: Thank you, your Honour.
<RE-EXAMINATION BY MR MCKEOWN [12.18PM]
PN1664
MR MCKEOWN: Mr Hall, in terms of my learned friend took you through issues in terms of the safety issues on the site, what was your view in terms of the level of action required in relation to those issues?---Well, I believe that those issues were ongoing housekeeping issues and they would be dealt with during the course of the day depending on what trades were in those areas.
PN1665
And my learned friend took you through, you recall he took you through a series of photographs. If the witness, you can hand up to your Honour a copy of the Murray Furlong statement MFA. I understand you already probably have in the witness box with you MFA. Do you recall that, being taken to it by my learned friend?---Yes.
PN1666
Except this time I'd like you to go from the front of the exhibit. Do you see the first photographs there? What's that a photograph of?
PN1667
MR DOWLING: Well, your Honour, I'm not sure how this is re-examination. I took him to one of the photographs in this to ask a specific question in relation to the photo, which is just the notice. I'm not sure any of this area about the other photographs arise in re-examination.
PN1668
THE SENIOR DEPUTY PRESIDENT: Mr McKeown?
PN1669
MR MCKEOWN: Well, it does arise because what was being questioned in regard to the notice was in relation to the Stapleton sheds, being the question of back charge, and I'm entitled to go through those photographs in the same exhibit.
PN1670
THE SENIOR DEPUTY PRESIDENT: To do what, to obtain an opinion of Mr Hall?
PN1671
MR MCKEOWN: Well, not an opinion, in terms of whether or not they're his recollection of the amenities in the day in question. But I won't - if you're not assisted, your Honour, I won't press it.
PN1672
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'll allow the question. I think the issue ..... was raised.
**** GEOFFREY PHILLIP HALL RXN MR MCKEOWN
PN1673
MR MCKEOWN: Now, could you just go through the first one, two, three, four, five and six. Do those photographs accord with your recollection of the state of the amenities at that time?---Yes.
PN1674
On 9 August?---Yes.
PN1675
THE SENIOR DEPUTY PRESIDENT: At what time on 9 August?
PN1676
MR MCKEOWN: Sorry, your Honour.
PN1677
What time on 9 August?---Exactly what time?
PN1678
As best as you can recall. I know, it's difficult, Mr Hall?---In the am when we first start.
PN1679
Thank you, Mr Hall, I've got no further questions.
THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence, Mr Hall, you're excused from these proceedings.
<THE WITNESS WITHDREW [12.22PM]
PN1681
THE SENIOR DEPUTY PRESIDENT: Who is next, Mr McKeown?
MR MCKEOWN: I'm just checking, your Honour. Mr Ben Barrett, your Honour.
<BENJAMIN JOHN BARRETT, AFFIRMED [12.23PM]
<EXAMINATION-IN-CHIEF BY MR MCKEOWN
PN1683
MR MCKEOWN: Could you please state for the record your full name and address?---Benjamin John Barrett (address supplied).
PN1684
And, Mr Barrett, have you made a statement in relation to this application?---I have.
PN1685
If the witness could be shown this document please. Mr Barrett, is that a copy of your statement?---It is.
PN1686
And is that a statement dated 4 April 2007?---Yes, it is.
PN1687
Which runs for two pages, six paragraphs?---Yes, it is.
PN1688
And is that your signature on page 2 of that statement?---Yes, it is.
PN1689
And, Mr Barrett, you refer to in paragraph 3 being interviewed on 1 September 2006, do you see that?---Yes.
PN1690
And then you refer in the subsequent paragraph 4 that "At the end of the interview he handed me a statement based on the answers I provided and seven attachments." Do you see that?---Yes.
PN1691
Could I take you to attachment BBA please. Is that a copy of the statement that you gave on 1 September 2006?---Yes, it is.
PN1692
And is that a statement that runs for five pages, some 50 paragraphs?---Yes, it is.
PN1693
Have you had an opportunity to read both the statement made in this application and the statement that I've just referred you to?---Yes, I have.
PN1694
And, Mr Barrett, are there any amendments or corrections you wish to make to this statement?---No, there are not.
PN1695
I tender that statement, your Honour.
PN1696
MR DOWLING: Your Honour, there are a couple of objections in relation to that statement, particularly in relation to the exhibit BBA.
**** BENJAMIN JOHN BARRETT XN MR MCKEOWN
PN1697
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1698
MR DOWLING: The first of those is at paragraph 13 of exhibit BBA, the second sentence "Geoff Hall had advised that Adrian McLoughlin had advised the employees on the site to remain," et cetera, that's hearsay and objected to on that basis. The same goes for the following sentence, double hearsay in fact, your Honour. The next objection is at paragraph 16, the second sentence "Ian Bligh said that he'd been instructed by," et cetera, to the end of that sentence, again that's hearsay, your Honour. The third - and there are only four of them, your Honour - the third is paragraph 18 "I'm of the opinion that Adrian McLoughlin directed Ian Bligh," et cetera, is opinion and identifies itself as such. And the last is paragraph 43, and there similar to objection that's been taken earlier today, your Honour, Mr Barrett sets out his understanding of the comments made by Mr McLoughlin in the preceding paragraph. We say they're opinion and speculative and not probative. They're the four objections made, your Honour.
PN1699
THE SENIOR DEPUTY PRESIDENT: Mr McKeown?
PN1700
MR MCKEOWN: Well, I'd say it goes to a matter of weight that you can give to those statements. I'd say that they shouldn't be excluded because of section 110 of the Workplace Relations Act, that they very much form part of the statement that was given to the inspector, and it is a matter of weight for you to judge.
PN1701
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN1702
MR DOWLING: Your Honour, the fact that part of this statement they're relied upon as the truth of their contents, I assume, your Honour, the fact that they're part of the attachment doesn't provide an explanation. There might be a question of weight, and I hear what your Honour has said in relation to the objection that I've taken at paragraph 43, but 13 and 16 are in a slightly different category, and the double hearsay we say goes beyond the question of weight. They are objections that we say should be maintained. Those paragraphs, the relevant parts of paragraphs 13 and 16 should come out, likewise 18. I'm happy to take what your Honour has said in relation to the earlier rulings in paragraph 43 and leave it as a question of weight, but I maintain the objections with respect to 13 and 16 and 18, your Honour.
PN1703
THE SENIOR DEPUTY PRESIDENT: Yes, I will admit the document being an existing document in the form it is. To the extent it's relied on for evidence plainly paragraphs 13 and 18 are matters of hearsay in circumstances where the relevant persons are before the Commission in any case, so would carry no weight in these proceedings, and equally in respect to the other matters that will be a matter of weight as to opinion expressed rather than matters of fact.
**** BENJAMIN JOHN BARRETT XN MR MCKEOWN
PN1704
MR DOWLING: Thank you.
THE SENIOR DEPUTY PRESIDENT: I will mark the statement of Mr Barrett.
EXHIBIT #ABCC14 STATEMENT OF BENJAMIN BARRETT DATED 04/04/2007 WITH ATTACHMENT
PN1706
MR MCKEOWN: Thank you, your Honour, no further questions.
PN1707
THE SENIOR DEPUTY PRESIDENT: I take it it's you, Mr Dowling?
MR DOWLING: You take it correctly, your Honour.
<CROSS-EXAMINATION BY MR DOWLING [12.31PM]
PN1709
MR DOWLING: Mr Barrett, you were asked a question and you've given some evidence about the providing of the statement that is the attachment to your statement, and that you've provided that to the ABCC on 1 September of 2006, do you recall that?---Yes.
PN1710
And you did that at the ABCC premises at 553 St Kilda Road?---Yes, that's right.
PN1711
And Mr Hall has given some evidence that he provided a statement on the same date at the same premises?---Yes.
PN1712
Did you go together with Mr Hall to provide the statement?---I can't recall.
PN1713
You may have but you don't recall?---I may have, yes.
PN1714
All right. And if I say to you that there are parts of your statement in which the same words appear in Mr Hall's statement, you can't say why that is?---No, I can't.
PN1715
All right. Now, if I can take you to 9 August you'll see there in your statement the first heading at the bottom of the first page is 9 August. You arrived at the site on that day at about shortly after 10 am or about 10 am, my apologies?---Yes.
PN1716
And I think your evidence is that the site was operating normally at that time when you arrived?---Yes.
PN1717
Did you speak to Mr Hall when you arrived?---Yes, I would have, yes.
**** BENJAMIN JOHN BARRETT XXN MR DOWLING
PN1718
And did Mr Hall tell you that Mr McLoughlin had been on the site earlier that day?---Yes, he did.
PN1719
And did he tell you that he'd carried out a safety walk or that he'd agreed to carry out a safety walk with Mr Bligh and Mr McLoughlin?---He said he'd - he said there was a safety walk conducted, yes.
PN1720
All right. And did he tell you about the issues that had been raised?---Yes.
PN1721
He told you that there'd been an issue raised about storage of items on the asbestos roof?---Yes.
PN1722
Unstable handrails in the link way?---Yes.
PN1723
Missing kick boards on the link way?---Yes.
PN1724
Missing kick boards on the stairwell?---Yes.
PN1725
The state of the sheds?---There was no - no, I don't believe the state of the sheds was raised.
PN1726
Okay, you don't recall that one being raised?---No. Well, I recall that I'd been told Ian Bligh was not allowed to clean the sheds.
PN1727
Well, I just want to deal with at the moment whether Mr Hall explained to you what had been raised on the safety walk that he'd done with Mr McLoughlin and Mr Bligh?---Yes.
PN1728
Do you recall the issues about the handrails?---The sheds, yes, the sheds would have been raised as an issue. I can't specifically recall it.
PN1729
You weren't there during that safety walk?---No.
PN1730
Okay. Did Mr Hall tell you that he'd agreed with Mr McLoughlin to rectify the issues that had been raised?---Yes.
PN1731
And that there'd been a meeting of employees to explain to them, employees on the site?---Yes.
**** BENJAMIN JOHN BARRETT XXN MR DOWLING
PN1732
That there'd been a meeting to explain to them what the safety issues were and that they'd be rectified?---I can't comment on what happened before I got - I can't tell you if that meeting formally took place or informally. That's a question for Geoff.
PN1733
No. I'm asking you whether Mr Hall conveyed to you - - -?---He conveyed to me there was safety issues on the job which were being attended to.
PN1734
Okay. These had been identified to him and that he'd agreed to rectify them?
---Yes.
PN1735
That's what he conveyed to you. Okay. Now, as you say, you weren't there during that. You arrived about 10 and the site was operating normally when you arrived?---Yes.
PN1736
Mr McLoughlin arrived shortly after you arrived just after 10?---Yes.
PN1737
I don't need you to look at your statement, but if you can't remember let me know?---No, it was.
PN1738
So he arrived shortly after that and you had a discussion with him?---Yes.
PN1739
And he expressed to you his concerns about the asbestos roof and the proximity of the roof to the school?---Yes.
PN1740
And he said to you that he notified, because of his concern over that issue he would notify the school and the council?---Yes.
PN1741
And you said to him that you were going to notify the ABCC?---No.
PN1742
You didn't raise the ABCC at all?---No.
PN1743
You didn't bring up the prospect of the ABCC with Mr McLoughlin?---No.
PN1744
In your statement that you've got in front of you there, BBA, you'll see on the third page at the top of the page at about paragraph 21 you attribute to Mr McLoughlin a comment about the ABCC?---Correct.
PN1745
As he's passing you. So are you asking us to accept that Mr McLoughlin made a comment about the ABCC without it being mentioned by anyone?---That's correct. I asked him if he had anything to show me, and he replied with that comment.
**** BENJAMIN JOHN BARRETT XXN MR DOWLING
PN1746
All right. So nothing had been mentioned about the ABCC?---No. I asked him if he had anything to show me when he attended the site, and he replied with that comment.
PN1747
When you say did he have anything to show you, you didn't ask for his permit did you?---Not specifically, no.
PN1748
Now, on that day some WorkSafe inspectors attended at the site?---Yes.
PN1749
And your evidence is that you make some notes of events on that day, and they're attached following your statement aren't they?---Yes.
PN1750
So there's a spreadsheet and then there's the start of the notes that begins, has Laurie Cross's name in the top. Do you have those?---Yes, page 4?
PN1751
Yes, it has a 4 in the top right hand corner. Does that mean it's page 4 of another set of notes, or do you know what that 4 represents?---No, I don't specifically.
PN1752
And if you turn to the third page of those notes you'll see in the middle of the page is a photocopy of a business card?---Yes.
PN1753
Dorothea Ferguson. She's one of the WorkSafe inspectors that attended?---Yes.
PN1754
And there's a list beneath that. Is that a list of the items that were raised by her on her inspection on that day?---Yes, housekeeping items.
PN1755
You don't describe them as housekeeping there though do you?---No. The items of concern that were raised, yes.
PN1756
Okay. And the ABCC inspectors also attended the site on that day?---Yes.
PN1757
Inspectors Furlong and Carey, does that accord with your recollection?---Murray furlong and one other, yes. I can't recall if it's Carey or not.
PN1758
You don't recall the other. They came at about 10 to four or so?---It was later in the day. I couldn't tell you the specific time.
PN1759
After normal knock off time?---It may have been, yes.
**** BENJAMIN JOHN BARRETT XXN MR DOWLING
PN1760
Normal knock off time is 3.30?---3.30 to five, depends on what's happening on the job, yes.
PN1761
Normal knock off time for most employees is 3.30?---Generally recognised as 3.30, yes.
PN1762
So they came after that. Did you invite them? Did you ring them and request they come down?---No, I didn't.
PN1763
You don't know who did?---No, I couldn't tell you specifically who did.
PN1764
Was it Mr Hall?---I don't know.
PN1765
You don't know, okay. Now, you spoke to them about the events that day?
---Yes.
PN1766
Did you speak to them about right of entry permits?---I may well have.
PN1767
You don't recall?---I don't, but I would imagine it was brought up.
PN1768
You'd be surprised if you didn't?---Yes.
PN1769
Did they give you some advice about asking Mr McLoughlin for his permit the next time he came?---Yes.
PN1770
They did. Now, the next time he came was on 10 August, the following day at about half past six or 20 to seven, around then. And I think Mr Hall's evidence is that he asked him for his permit the next day?---That's right.
PN1771
I'm assuming he asked him for his permit the next day because Inspector Furlong had said next time he comes you ask him for his permit?---Well, no different to me asking if he had anything to show me on the first day that he arrived.
PN1772
You didn't know about the permits on the first day did you?---Yes, we did.
PN1773
You didn't ask for his permit though did you?---Not specifically, no.
PN1774
But in practice now after seeing Inspectors Furlong and Carey to ask for the permit, is that your evidence?---It was more specifically asked, and it may well have been as a result of that.
**** BENJAMIN JOHN BARRETT XXN MR DOWLING
PN1775
Your practice is more specific now after seeing Inspector Furlong?---Whether it was Inspector Furlong or discussions about the day with other people, I couldn't tell you why, yes.
PN1776
Now, there was a meeting on 10 August, Mr McLoughlin met with employees on the site at about a quarter to seven?---Around about that time, yes.
PN1777
And that finished at about five to seven?---Yes.
PN1778
It finished before work was to commence on the site?---Yes.
PN1779
All right. And you weren't at that meeting?---I was in a shed adjacent to that meeting.
PN1780
I'm asking whether you were at the meeting?---No.
PN1781
No further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes. Anything arising, Mr McKeown?
<RE-EXAMINATION BY MR MCKEOWN [12.42PM]
PN1783
MR MCKEOWN: You were asked questions in relation to your notes under the business card of WorkSafe, and you referred to them being housekeeping items. Can you explain to his Honour what you mean by when you referred to them as housekeeping items?---If WorkSafe found items of concern, your Honour, they would have issued a notice to us, a prohibition notice or some form of disciplinary action to have these items fixed immediately, and no such notice was raised from there, therefore it was dated a housekeeping thing which needed to be tidied up. They may have been better but in WorkSafe's opinion posed no imminent risks to health and safety.
PN1784
Thank you, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you for your evidence, you're excused from these proceedings.
<THE WITNESS WITHDREW [12.43PM]
PN1786
THE SENIOR DEPUTY PRESIDENT: I might adjourn for lunch at this point, and we'll resume at 2 o'clock.
PN1787
MR MCKEOWN: Thank you, your Honour.
<LUNCHEON ADJOURNMENT [12.43PM]
<RESUMED [2.01PM]
PN1788
THE SENIOR DEPUTY PRESIDENT: I should advise the parties I'll need to adjourn at four today to attend to another hearing. Mr McKeown.
MR MCKEOWN: Your Honour I call Dale Hammett.
<DALE ROBERT HAMMETT, AFFIRMED [2.01PM]
<EXAMINATION-IN-CHIEF BY MR MCKEOWN
PN1790
MR MCKEOWN: Would you please state for the record your full name and address?---Dale Robert Hammett (address supplied).
PN1791
Mr Hammett, have you made a statement in relation to the application before the Commission?---Yes, I have.
PN1792
If the witness could be shown this document.
PN1793
Mr Hammett, is that a copy of your statement?---Yes, it is.
PN1794
Is that a statement that runs for three pages, five paragraphs?---Yes, it is.
PN1795
On the third page it shows dated, signature. Is that your signature, Mr Hammett?
---Yes, it is.
PN1796
Have you had an opportunity to read your statement recently?---Yes, I have.
PN1797
Are there any amendments or corrections you wish to make to that statement?
---No, there aren't.
PN1798
Is that statement true and correct to the best of your knowledge?---Yes, it is.
I tender that.
EXHIBIT #ABCC15 STATEMENT OF DALE ROBERT HAMMETT DATED 04/04/2007
PN1800
MR MCKEOWN: Thank you, your Honour, I've got no further questions.
PN1801
THE SENIOR DEPUTY PRESIDENT: Mr Dowling, you seem to be the photographic expert.
PN1802
MR DOWLING: I'm the expert photographer.
THE SENIOR DEPUTY PRESIDENT: Better quality printer in this case.
<CROSS-EXAMINATION BY MR DOWLING [2.04 PM]
PN1804
MR DOWLING: Mr Hammett, you've been referred to and you have attached to your statement 20 photographs and they're identified as DBA through to DB10. You took those photographs yourself?---To DBT, yes, I did.
**** DALE ROBERT HAMMETT XXN MR DOWLING
PN1805
Sorry?---You referred to DB10. I think it's DBT.
PN1806
DBT, is what I said. DBA through to DBT, you took those photographs yourself?---Yes, I did.
PN1807
Using your own camera?---Yes, I did.
PN1808
You had your camera with you at work that day on 9 August?---Yes.
PN1809
What sort of camera is it?---I can show you, I've got it here.
PN1810
Yes, please?---It's a digital camera, Kodak Easyshare.
PN1811
Could you keep it there for a moment. The photographs you've got there, if you can look at just the first one for an example, you'll see there's a date on the bottom right-hand corner?---Yes, that's correct.
PN1812
Did you put the date in the bottom right-hand corner?---No.
PN1813
Does the camera have the function to do that?---Yes.
PN1814
Did you turn on the function so that the camera could do that?---I turned on the camera and the camera did it.
PN1815
Does the camera also have a function that can put the time on the photograph?
---Not that I'm aware of.
PN1816
You don't know. If it does have that function, you didn't have that function enabled?---That's correct.
PN1817
If you keep hold of those photographs, and go back to your statement,
paragraph 3, you refer to 9 August and you refer to Mr McLoughlin coming on the site on that day and you attribute some words to
him in relation to the toilets and sheds and you say then that you thought it was a good idea to take the photos. Mr McLoughlin's
statement provides that he came onto the site at about 7 am so when you're referring to him coming on the site early that morning
in the third line of paragraph 3, you're referring to coming on at 7 am or thereabouts?---Sorry, what was the question?
**** DALE ROBERT HAMMETT XXN MR DOWLING
PN1818
Where you refer in the third line of paragraph 3 to Mr McLoughlin visiting the site early that morning, are you referring to a visit at around 7am?---Yes.
PN1819
You say there that you took some photographs after that, so you're saying after he left from that visit at 7 am?---Yes.
PN1820
Can you say when you took the photographs?---Around 9 am.
PN1821
The site starts work about seven?---Yes.
PN1822
And closes about 3.30 or thereabouts?---Generally.
PN1823
There's a smoko and a lunch?---Generally, yes.
PN1824
Smoko is 9.30?---About 9.30, yes.
PN1825
Smoko usually takes place in the lunch sheds?---Yes.
PN1826
Will you have a look at the very last of the photographs you've got there, which is DBT. Do you have that?---Yes.
PN1827
It has three chairs stacked up at the far end of the table?---Yes.
PN1828
Has a newspaper in the middle of the table. Do you see that?---Yes, I can see the newspaper. Yes.
PN1829
Do you know some other photographs were taken of this site on the same day?
---Are you aware of that?---Yes, maybe some other photographs have been taken.
PN1830
Perhaps I can clarify something. You've attached 20 photographs. Are there any other photos that you took that aren't attached here?---I took thousands of photographs on the site during that period of constructions.
PN1831
Just concentrating on 9 August for the moment, you've attached 20 photographs you took on 9 August. Are they the only photographs you took on 9 August?---I don't think so, no.
PN1832
There are others. What were the other photographs of on that date?---I can't remember.
**** DALE ROBERT HAMMETT XXN MR DOWLING
PN1833
Where are they?---They're on my computer, on the hard drive.
PN1834
Have you shown those to anyone at the ABCC, those other photographs?---I'm not sure what photographs have been shown to the ABCC.
PN1835
You prepared this statement and you attached these photographs. You agree with that?---Yes. that's correct, yes.
PN1836
When you were preparing this statement and attaching these photographs, did you also provide to the people that assisted you in the preparation of this statement the additional photographs that you've talked about?---I'm not sure. What happened was, photographs - I gave the photographs that I took to Ben Barrett originally, who I think has already tendered some information to this Commission - - -
PN1837
I just want to stop you there because you've said there are 20 photographs here but you believe you took more on that day. When you emailed the photographs to Ben Barrett, did you email more than the photographs that are attached to this statement? Do you remember how many photographs you emailed to him?---No, I don't.
PN1838
Could have been more than the 20 you've got attached here?---Could have been.
PN1839
Given you've told us that there were more than these 20, did you edit that down to just this 20 and send it off to Mr Barrett, or did you send off to Mr Barrett everything that you'd photographed on that day?---I can't recall.
PN1840
Is there any reason why you wouldn't have simply sent all the photographs that you took on 9 August?---Maybe some of them were - I would have thought weren't worth showing possibly. There might have been other photographs that I took. There were other parts of the site that weren't of interest to the situation.
PN1841
Remember here we're talking about the photographs of the sheds and the toilet block, so let's, as best you're able, confine the discussion about the photographs to the photographs of the shed and the toilet block. So are you saying you may have taken some additional photos of the sheds and the toilet block that aren't here?---I believe all the photographs of the toilet areas and the site sheds are here.
PN1842
But you're not sure?---Not 100 per cent, no.
**** DALE ROBERT HAMMETT XXN MR DOWLING
PN1843
If you had taken more, you would have sent to Mr Barrett all of those of the toilet block and the site sheds to Mr Barrett?---I believe I would have.
PN1844
You wouldn't have cut any of those out?---No.
PN1845
You're still able to access all of the photos you took on that day?---Yes.
PN1846
They're still available?---Yes.
PN1847
I call for the production of those additional photographs, your Honour.
PN1848
THE SENIOR DEPUTY PRESIDENT: Mr McKeown.
PN1849
MR MCKEOWN: The person best able to do that would be the witness, your Honour, and we can arrange for it overnight, if you like.
PN1850
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN1851
MR MCKEOWN: That can be clarified if there are additional photos.
PN1852
THE SENIOR DEPUTY PRESIDENT: Very well. I wonder if you could provide the full set of those photos presumably through Mr Visirio.
PN1853
MR MCKEOWN: Yes.
PN1854
MR DOWLING: I said to you before that there were some additional photographs taken on the site that day by someone other than you. Were you aware of those photographs?---No.
PN1855
I'm going to show you some photographs,. Your Honour, I'm showing to Mr Hammett exhibit MFA. These are photographs, if I can just explain to you before you look at them, that are said to be taken by Inspector Furlong who's an inspector from the ABCC. His evidence is that he went down to the site at about 4 o'clock and after attending the site he took some photographs. You've given some evidence that you believe yours were taken - - -
PN1856
MR MCKEOWN: If I could just interrupt my learned friend now. I just want to clarify, are the photographs being handed up, MFA, the complete set?
**** DALE ROBERT HAMMETT XXN MR DOWLING
PN1857
THE SENIOR DEPUTY PRESIDENT: I understand so, yes.
PN1858
MR MCKEOWN: As I understand my learned friend, did he also put that they were additional photos within that group of MFA? I understood the question being put - - -
PN1859
THE SENIOR DEPUTY PRESIDENT: They're additional to those taken and included in - - -
PN1860
MR MCKEOWN: By Mr Hammett. Thank you, your Honour. I just wanted to clarify that.
PN1861
MR DOWLING: I think the witness understood me but I'm happy to clarify it.
PN1862
I'm not suggesting that you took these additional photographs, I'm telling you that Mr Furlong took these photographs and I don't want you to be confused that - you've talked about some additional photographs that you took. I'm not suggesting these are those. These are photographs taken by Mr Furlong and his evidence is that he took them sometime after 4 o'clock. You've got in front of you the photograph that you took DBT, the photograph of - that's the lunchroom. Is that - sorry. I'm going to ask you to look at two photos at once, one from your pile and one from Mr Furlong's pile so if you can start with DBT from your pile, that's the lunchroom. You say that's the lunchroom at about 9 am?---Yes, that's right.
PN1863
If you put that down, because you'll need both hands, and go to Mr Furlong's photographs, and if you go to the ninth photograph. If I've counted correctly, that's the photograph of the same site shed looked at from roughly the same direction. It has the same three chairs piled up at the end of the table. It has the same newspaper in the middle of the table. Do you see that?---Yes, looks like the same shed to me. Yes.
PN1864
It's in identical condition, isn't it?---Yes, it is.
PN1865
You'll see there's a plastic bag on the floor still in the same spot, in the bottom left-hand corner, the newspaper clearly hasn't been disturbed, it's - you can se the crease in the bottom left-hand corner, it's still there and it's still in exactly the same spot, as for the drink bottles. You agree with me that it's in exactly the same condition?---Yes, looks exactly the same.
**** DALE ROBERT HAMMETT XXN MR DOWLING
PN1866
I indicated to you that Mr Furlong's evidence is that he took his photos sometime after 4 o'clock, your's sometime before nine and you evidence is also that smoko is about 9.30. What I'm putting to is that there's been a smoko in that shed between - on your version of events between your photograph and Mr Furlong's photograph. It couldn't possibly be that there's been a smoko in that shed between those two photographs, could it?---It could have been if the shed wasn't used at smoko time.
PN1867
You've given your evidence that that shed is used for smoko?---Yes, but there might be more sheds that one. Might not have had that many people on site that day and so it might not have been used.
PN1868
This is 9 August. There is evidence that up until 10 o'clock at least the site was functioning normally. That's the evidence. So everybody that was working on the site at around that time was working on this day.
PN1869
MR MCKEOWN: That's not the evidence as I understand it. In fact, the evidence is that there was a meeting at the start of work that day and there was rectification work which involved the workers on the site being in sheds so they weren't on or about the site. It's not correct to put work conducted as normal.
PN1870
MR DOWLING: I think my friend might have misheard something I said and I'm happy to clarify it.
PN1871
THE SENIOR DEPUTY PRESIDENT: If you could clarify it, it would help.
PN1872
MR DOWLING: Mr Barrett has given some evidence about when he arrived and he said at paragraph 15 of the first exhibit to his statement that he arrived at 10 o'clock, "The site was operating normally when I arrived at the site." That's what I was putting to the witness so at least - - -
PN1873
MR MCKEOWN: He didn't put it that way.
PN1874
MR DOWLING: At 10 o'clock - - -
PN1875
MR MCKEOWN: With respect, he didn't put it that way. He didn't preface his comments by saying Mr Barrett. He just put it that the site was operating - - -
PN1876
THE SENIOR DEPUTY PRESIDENT: No, but the clarification has been made.
**** DALE ROBERT HAMMETT XXN MR DOWLING
PN1877
MR DOWLING: Correct it is. I didn't say Mr Barrett. I'm not sure that I was required to.
PN1878
At 10 o'clock the site was operating normally so what I'm putting to you is that all those that were working that day had had a smoko and they would have used the lunch shed to have their smoko?---Not necessarily. If we have - we generally try to have more shed on site than we need just in case we have extra people to accommodate the people so it might have been that we didn't even use that shed that whole day.
PN1879
You don't know?---I don't know 100 per cent, no, but that doesn't mean that there'll be smoko in that shed.
PN1880
What I'm putting to you is - perhaps I can just clarify what you say. You don't dispute that this shed is used - I want you to just concentrate on my question and leave the photographs for a moment, Mr Hammett?---I'm listening.
PN1881
You don't dispute that this shed is used for smoko?---It's a smoko shed, yes. It can be used at smoko.
PN1882
It clearly has been used, there's a newspaper and some drink bottles there. You don't know when but clearly - - -?---It may have been from the day before.
PN1883
It may have been, you don't know?---No. I can't say that for sure, no, as you don't know either.
PN1884
I think the practice is at this site, you may or may not know, that the sheds are cleaned every day?---Yes.
PN1885
If there's a plastic bag and empty drink bottles and things like that from the previous day, you would expect they would have been cleaned. Is that not right? I don't need you to look at the photo to answer that question?---No, of course you don't.
PN1886
If they're left over from the previous day you would expect they'd been cleaned away?---You'd expect - normally they would, yes.
PN1887
So what I'm putting to you is that this shed was used on this day, you don't know?---I don't know, no. To me it doesn't look like it was used at all because I did take my photograph at 9 o'clock, or around 9 o'clock and you're telling me that this photograph was taken around 4 o'clock. So it would indicate to me this shed wasn't used on that day.
**** DALE ROBERT HAMMETT XXN MR DOWLING
PN1888
Well, I'm putting to you that you didn't take your photograph at 9 o'clock at all. You took your photo later in the day?---No, I didn't. I took my - I'm on oath. I took an affirmation to say that I took the photographs at 9 o'clock, around 9 o'clock that morning.
PN1889
Now, you gave some evidence about the camera and about its ability to put a time stamp on it?---Yes.
PN1890
Is it your evidence that it does have that ability, it just wasn't on?---No. I - - -
PN1891
Or you just don't know?---No, I don't know if it has or not. It may record it on the actual file on the computer, it may say the time. I'd have to check.
PN1892
I wonder if you would mind if you would leave your camera behind for us? We'll undertake, of course, not to - - - ?---There isn't - the photographs here are not on this camera.
PN1893
That's all right.
PN1894
THE SENIOR DEPUTY PRESIDENT: They've been downloaded.
PN1895
MR DOWLING: Yes.
PN1896
Now, if you go back to the photos at MFA again and if you go to the very first of those, do you have that?---Yes. I'm looking at it now.
PN1897
And if you go over the page to the next photograph, that's the same room?
---Looks like the same room to me.
PN1898
Yes. Everything's in the same place as the previous photograph, yes?---Yes, yes.
PN1899
Now, if you go back to the photographs that you took, this time if you turn to DBQ, is that the same room as the photograph that you've identified in the other pile, the photographs taken by Mr Furlong?---Yes, I believe it is.
PN1900
And you agree with me that everything's in - again, just to clarify it. As we've said Mr Furlong says he took his photos after 4 o'clock. You agree with me that everything is in exactly the same position in the photograph taken by Mr Furlong as the photograph taken by you?---No, I don't. It's very similar. On the photograph in attachment MFA, there is something in the middle of the table which doesn't appear on my photograph.
**** DALE ROBERT HAMMETT XXN MR DOWLING
PN1901
Okay, all right?---It's pretty similar. No, it's not exactly the same, but fairly similar, but there are some more - on my photograph there is some more paper work at the edge of the - similar.
PN1902
Okay. So you agree with me then, from what you say it appears that it's been used between your photo and the other photo, just the newspaper happens to be in exactly the same position, the pen happens to be in exactly the same position, water bottle appears to be in exactly the same position. It's been used during the day, but none of those things have been moved?---There's no water bottle appears in attachment MFA, actually. It may be there, but - - -
PN1903
Hang on a minute, one step at a time. The first two photographs don't have that end of the table, do they, in MFA, and then if you go to the third photo, you see the water bottle?---Yes, yes, correct, but on the third photograph there's a cup sitting there. That doesn't appear on my photograph.
PN1904
So this shed has been used during the day and you're expecting us to accept that the only change is the removal of one cup. Other than that - - - ?---I'm not expecting you to believe anything. All I know is I took these photographs in the morning, around 9 o'clock.
PN1905
You might be mistaken about that, mightn't you?---No, definitely not.
No further questions.
<RE-EXAMINATION BY MR MCKEOWN [2.28PM]
PN1907
MR MCKEOWN: You were asked a series of questions about when these photos were taken. Can you go to your DBJ, please?---Yes.
PN1908
The questions being put to you were in terms of what time in effect these photos took place. What time of year was this?---This was in August.
PN1909
In terms of your photograph there. Can you look closely at the photograph. Do you see there's a vehicle in the photograph?---Yes, I can.
PN1910
Are you able to say in terms of who the person is in front of that vehicle, one in the lime jacket and one just off to that person?---Okay. The one in the lime jacket looks like - - -
**** DALE ROBERT HAMMETT RXN MR MCKEOWN
PN1911
Well, it's a bit hard, he's got his back to you?---Yes. I'd say one of the - - -
PN1912
The other gentleman facing him?---I think that is Mr McLoughlin facing him.
PN1913
Do you know what car Mr McLoughlin drives?---It looks like the car in the photograph.
PN1914
Yes. In terms of the photographs that you've taken there, in terms of if you go
to - when you took the photographs with your camera, did you have to adjust the light, or is it just taken as is?---Just as is.
PN1915
And this is in August?---Yes.
PN1916
Thank you. No further questions.
PN1917
MR DOWLING: Your Honour, rather than have this witness excused, just in relation to the further documents that are to be provided and questions in relation to the camera, I wonder if he might just be - - -
PN1918
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Hammett, thank you for your evidence for the moment. I won't excuse you from the proceedings as yet. You may be required to attend. You may leave us and you will be advised if you're required to re-appear.
PN1919
MR MCKEOWN: Your Honour, can I just clarify a point too. I didn't quite hear it, whether or not there was a request made for Mr Hammett's camera.
PN1920
THE SENIOR DEPUTY PRESIDENT: There was.
PN1921
MR MCKEOWN: Is that to be put into the custody of counsel?
PN1922
THE SENIOR DEPUTY PRESIDENT: Yes, that's as I understand it.
PN1923
MR MCKEOWN: And to remain with counsel?
PN1924
THE SENIOR DEPUTY PRESIDENT: That's as I understand it.
PN1925
MR MCKEOWN: I'd seek that undertaking, your Honour.
**** DALE ROBERT HAMMETT RXN MR MCKEOWN
PN1926
THE SENIOR DEPUTY PRESIDENT: That's the position, Mr Dowling?
PN1927
MR DOWLING: Yes, that's fine, your Honour.
PN1928
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN1929
MR MCKEOWN: Thank you, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hammett, you may leave.
<THE WITNESS WITHDREW [2.31PM]
PN1931
MR MCKEOWN: Your Honour, I'd seek to call Mr Ian Bligh.
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
<IAN BLIGH, SWORN [2.32PM]
<EXAMINATION-IN-CHIEF BY MR MCKEOWN
PN1933
MR MCKEOWN: Mr Bligh, could you please state for the record your full name and address?---Ian Bligh (address supplied).
PN1934
Mr Bligh, have you made a statement in relation to this matter?---Yes, I have.
PN1935
If the witness could be shown this statement. Mr Bligh, is that a copy of your statement?---It is.
PN1936
And is that statement dated 4 April 2007?---Yes.
PN1937
And it runs for three pages, some nine paragraphs?---That's right.
PN1938
Could I just take you to, in terms of you make reference in the third paragraph that, "On 28 August I was requested to attend an interview with inspectors from the Office of the Australian Building Construction Commissioner." Do you see that?---Yes, I do.
PN1939
And then you refer in terms of, "As a result of my meeting at the CFMEU I wrote a letter to Martin Kingham"?---That's right.
PN1940
Can you go to IBA. Is that a copy of the letter you wrote to Mr Kingham?---Yes, it is.
PN1941
And he's the State Secretary of the CFMEU, is that correct?---That's right.
PN1942
And then in terms of, if I just take you to paragraph 8, you refer there to a copy, after referring to your interview with Inspector Furlong, you refer to, "A copy of that statement is attached and marked IB-B except that my address has been omitted from that statement"?---That's right.
PN1943
Could I just take you to that statement. Is that a statement which runs for seven pages, 67 paragraphs?---Yes, that's right.
PN1944
And at the end of each page of that particular statement, is that your signature and the date, 6 September 2006?---That's right.
PN1945
Have you had an opportunity, Mr Bligh, to read this statement recently?---Yes, I have.
**** IAN BLIGH XN MR MCKEOWN
PN1946
And are there any amendments or corrections you wish to make to that statement?---No, none at all.
PN1947
Is that statement true and correct?---It is.
PN1948
To the best of your knowledge?---To the best of my knowledge.
PN1949
I tender that statement, your Honour.
PN1950
THE SENIOR DEPUTY PRESIDENT: Yes. I'll mark the statement of Ian Bligh, nine paragraphs, dated 4 April 2007, three attachments - - -
PN1951
MR DOWLING: Your Honour, there are two objections to that statement. Excuse me for interrupting.
PN1952
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1953
MR DOWLING: At paragraphs 43 and 47, by that I'm referring to the attachment, IB-B, the paragraphs of that attachment, at the third sentence of paragraph 43 Mr Bligh there says, "However, in my opinion I do not believe that this was a reason" et cetera, et cetera, that we say is - and it describes itself as opinion evidence.
PN1954
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1955
MR DOWLING: The same goes for the first sentence in paragraph 47, "In my opinion there were no" - et cetera, et cetera. Only in relation to the first sentence in 47, again, we say it is and describes itself as opinion evidence. Those are the only objections.
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'll admit the statement as a whole and note that it does contain opinion, and give it such weight. I'll mark the statement of Mr Bligh of 4 April 2007, nine paragraphs, two attachments.
EXHIBIT #ABCC16 STATEMENT OF IAN BLIGH DATED 04/04/2007
PN1957
MR MCKEOWN: Thank you, your Honour.
PN1958
Mr Bligh, have you made a further supplementary statement in relation to this matter?---Yes, I have.
**** IAN BLIGH XN MR MCKEOWN
PN1959
If the witness could be shown this document. Mr Bligh, is that a statement and it runs beginning from paragraph 10 which follows from your previous statement, is that a statement that you've had the opportunity to read recently?---Yes, I have.
PN1960
And are there any amendments or corrections you wish to make to that statement?---No amendments at all.
PN1961
And is that statement true and correct?---Yes, it is.
PN1962
I tender that statement, your Honour.
PN1963
MR DOWLING: There's only one objection, your Honour.
PN1964
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dowling?
PN1965
MR DOWLING: It's in relation to the attachment to the statement. I want it made clear that the statement and the attachment to it can be tendered on the basis that there is such a document, but certainly not as any evidence of its provenance. On the basis of that statement no other objection.
THE SENIOR DEPUTY PRESIDENT: Yes, very well. The document will be received as it is, of some six paragraphs, 10 to 15, dated July 2007 with one attachment, that will be ABCC17.
EXHIBIT #ABCC17 STATEMENT OF IAN BLIGH DATED JULY 2007
MR MCKEOWN: Thank you, your Honour. I've got no further questions.
<CROSS-EXAMINATION BY MR DOWLING [2.40PM]
PN1968
MR DOWLING: Mr Bligh, if I can ask you to turn to the attachment to your witness statement, which is marked IB-B which is the statement that you provided to the ABCC?---Yes.
PN1969
Do you have that? You've given some evidence that you gave that statement on 6 September?---That's right.
PN1970
That's your signature and you did so at the ABCC premises at St Kilda Road?
---Correct.
**** IAN BLIGH XXN MR DOWLING
PN1971
Now, before I take you to the circumstances of 9 August, I just want to clarify the site hours and your hours. The site hours, we've heard some evidence, are from 7 am till about 3.30?---3.30, yes, site hours.
PN1972
And they're your hours, 7 am till 3.30?---Well, I'm usually on site at about 6.30 opening up the site, quarter past 6, 6.30 open up the site, turn on lights and things like that.
PN1973
And leave, all being equal, at about 3.30?---Yes, that's right.
PN1974
You'll have smoko at about 9.30?---9.30, depending on what's going on on the site at the time.
PN1975
And lunch about 12, 12.30?---12, 12.30, yes.
PN1976
Now, on 9 August it was one of those days, you arrived at about 6.15, you opened up and you were having a cup of tea when Mr McLoughlin arrived at about 6.45 am?---Roughly about then, yes.
PN1977
And he said that he wanted to do a safety walk?---That's correct.
PN1978
And you said that you'd both go and see Mr Hall?---That's right.
PN1979
And you did both go and see Mr Hall?---Correct.
PN1980
And you and Mr McLoughlin had a discussion with Mr Hall about taking a safety walk?---Correct.
PN1981
And your memory is that Mr Hall agreed?---Yes, we did.
PN1982
Between the three of you, that there would be a safety walk?---Yes.
PN1983
If I could just stop you there one moment. The safety walk that you conducted on 9 August, when was the last time prior to this day, on 9 August, that you did a safety walk?---It would have been the previous Tuesday. We do one every Tuesday. We did one every Tuesday.
PN1984
You did that with Mr Hall?---Yes, and there was a committee at that - - -
**** IAN BLIGH XXN MR DOWLING
PN1985
Some other people with you?---Yes, that's right. We had to have a committee.
PN1986
Now, just dealing with that and that safety walk. Your evidence is that you are the OH&S representative at the site?---Correct.
PN1987
So in between the safety walks I assume you walk around the site?---Correct.
PN1988
Keeping an eye on safety issues generally. You don't wait until Tuesday to Tuesday?---No, we don't wait for something to happen, of course you're on it all the time.
PN1989
Okay. But on this day Mr McLoughlin wants to conduct a safety walk, you and Mr Hall agree to it?---Correct.
PN1990
And you go on the safety walk and certain things are identified. The first of those is, and you refer to it at paragraph 19, Mr McLoughlin expressed some concern about an asbestos roof?---Correct, he did.
PN1991
And was concerned about any airborne asbestos particles from the roof and was concerned about the fact that there was things stored on it?---Yes, that's right.
PN1992
And it wasn't cordoned off so people could walk onto it and store things on it?
---Well, there was a scaffold actually up against the area so people couldn't access the actual roof properly. It wasn't cordoned
off, as you say, but there was a scaffold with tie bars and things across the area so they couldn't actually physically get on that
without climbing through the tie bars and stuff like that.
PN1993
Some people had stored some things on it?---Yes, they put some - I don't know how they did it, but yes, they did.
PN1994
I'll make it easy for you. It's unfair. I can show you some photographs to remind you. If the witness could be shown MFB. Do you have that?---Yes, I've got it.
PN1995
There's a series of photographs. The first one is a urinal obviously, I need you to look at that one. If you count in from there - - -?---Yes, I've got it.
PN1996
There's a photograph of the roof, yes?---Yes.
PN1997
Now, the scaffold on the left, that's the scaffold you're talking about. The long planks of wood there, they're the things that have
been stored there it appears?
---Someone stored them there, whoever I don't know.
**** IAN BLIGH XXN MR DOWLING
PN1998
All right. And that's one of the things that was some concern to Mr McLoughlin, that people shouldn't be storing things on top of it?---A fair enough comment, I agree with it.
PN1999
All right, you agree with it. Is that something that you'd seen before in your walks around the site in between the inspections?---No, I hadn't.
PN2000
And so on this walk it was Mr McLoughlin that noticed it this time was it?
---That's right.
PN2001
So you and Mr Hall missed it again?---No. We all were together, the three of us went together.
PN2002
Okay. But Mr McLoughlin pointed it out?---He's just pointed it out as an observation from himself.
PN2003
Now, the second issue that was identified is a link way between two parts of the site or what's described as a link way, and I think you used those words. It's about three metres above the ground, and Mr McLoughlin identified that some of the handrails were wobbly?---Yes, that's right.
PN2004
You agree that - - -?---I agree with that statement, yes.
PN2005
You agree they were?---Yes, yes.
PN2006
All right. And you say in your statement that's a genuine safety issue?---That's right.
PN2007
You don't take any doubt with that. That's something, we're talking about three metres off the ground?---That's right.
PN2008
Wobbly handrails?---Yes. Not all of them were wobbly, there was a couple, but yes, I agree.
PN2009
It's a genuine safety issue, it's something that could cause a serious accident to a worker at the site?---Yes.
PN2010
At any time?---At any time.
**** IAN BLIGH XXN MR DOWLING
PN2011
At paragraph 21 of your statement you also say, and I assume you mean in relation to the link way, that there were no kickboards across the area?---That's correct.
PN2012
And again you agree with me and you say so in your statement, that was a genuine safety issue?---Yes.
PN2013
And then the next, there were kickboards missing on the stairwell?---Yes.
PN2014
And again you agree with me it's a safety issue?---Yes.
PN2015
And all of these issues are issues that could cause serious injuries to workers at the site at any time?---Yes.
PN2016
Now, you say in your statement that there was a meeting after this walk through, safety walk, and that took place at about 10 past seven?---Yes, approximately, yes.
PN2017
And Mr Hall and yourself were both present at that meeting?---Correct.
PN2018
Mr McLoughlin addressed the meeting?---He did.
PN2019
Mr McLoughlin told the employees present that the issues identified would be rectified?---That's right.
PN2020
Had Mr Hall agreed to rectify the issues?---Of course.
PN2021
And you agreed that you'd do what you could to rectify the issue as well?---That's right, yes.
PN2022
Okay. Mr McLoughlin's explaining to the employees that these have been found and these will be rectified?---That's right.
PN2023
Mr Hall didn't object to the holding of the meeting?---No. Well, they were there, so it had to be held to let the guys know that there was a problem on site.
PN2024
All right. Now, if I can go on, and over the page in your statement at paragraph 30 there you say "During the rectification works Geoff asked me to clean the sheds," Geoff being Mr Hall. And you said "Don't lay this one on me." Why did you say that?---Why? Because on a previous part of it that's probably been skipped I was told by Adrian McLoughlin or Skinner not to clean the sheds, physically not to clean the sheds.
**** IAN BLIGH XXN MR DOWLING
PN2025
All right, we'll come back to that. Perhaps we can deal with the next paragraph as well. Geoff then approached you, you say "and he told me that he'd been contacted by John Chambers, Kane Constructions director," who had told you to clean the sheds otherwise you'll be given a warning?---That's right.
PN2026
And you said you needed to concentrate on safety?---That's correct.
PN2027
All right. And Mr McLoughlin had told you to concentrate on safety hadn't he?
---Yes.
PN2028
He was concerned that - - -?---Well, yes, he told me that we had to do the safety rectification before the guys would get back to work, yes.
PN2029
He was concerned that you had a bit too much to do and you needed to concentrate on safety before you'd do cleaning of the site sheds?---I think you were saying before - - -
PN2030
I'll stop you there?---Yes, okay.
PN2031
We'll take it one step at a time to make it easy for you?---One step at a time. The original conversation was I was not to clean the sheds, full stop, there was no ifs, no buts. That was the direction from Skinner.
PN2032
Well, that's not the question I'm asking?---Okay. He's concerned with also - - -
PN2033
Hang on a minute, Mr Bligh.
PN2034
MR MCKEOWN: He should let him answer?---Also there was occ health and safety.
PN2035
MR DOWLING: He's certainly entitled to answer a question that I've asked, but when it's a non responsive answer I think I'm entitled to stop the witness. If he wants to be re-examined, needs to be re-examined, he can be.
PN2036
THE SENIOR DEPUTY PRESIDENT: Yes. Go on.
PN2037
MR DOWLING: Now, just concentrating on one thing at a time. My question to you is about Mr McLoughlin's concern?---Right.
**** IAN BLIGH XXN MR DOWLING
PN2038
Mr McLoughlin had a concern that you had too much to do on the site. I'm talking generally at the moment?---Yes.
PN2039
And he wanted you to concentrate on safety on the site?---Yes. Well, that's fair enough.
PN2040
You don't - - -?---Well, you know - - -
PN2041
You agree that he can say that?---You have to concentrate on safety, that's your main priority on the site.
PN2042
Okay. And a couple of things that he's identified on this safety walk you have missed in your duties up until that point?---Well, the site changes every day, so from work that was done on Saturday it could have been done 10 minutes before I left to go home on the Saturday, whatever time we left. I can't - you know, Monday morning comes round, I haven't had a chance to go on site, and Mr McLoughlin's come on site and we've gone and done a safety walk. Well, that would have been - I don't know, I can't assume that, but maybe they could have been spotted, maybe they couldn't have been spotted.
PN2043
Do you remember we're talking about Wednesday here at the moment?---Yes. Look, I get confused with the days, but yes, the work could have been done the night before, I don't know.
PN2044
Well, I think your evidence is that you do your walks on a Tuesday?---Tuesday.
PN2045
So this is a day after your normal walk day?---Yes. Well, it's pouring concrete and stripping at the same time, so work was being done constantly on site all over.
PN2046
All right. You might have missed some things, you don't know?---Yes. Obviously there's no site that's 100 per cent. You try and make it that, but it's not.
PN2047
All right. Now, after Mr Hall said to you that you'd be given a warning if you didn't clean the site sheds, you were a bit concerned about that statement by Mr Hall weren't you?---Yes.
PN2048
Were you intimidated by it?---A little bit, yes.
PN2049
And you rang Mr Chambers about it didn't you?---That's right, I did.
**** IAN BLIGH XXN MR DOWLING
PN2050
Okay. And you also telephoned Mr McLoughlin about it didn't you?---Yes.
PN2051
And you explained to him, as you say in your statement, that you'd been informed that if you don't clean the sheds you'd be given a warning?---That's right.
PN2052
And you telephoned Mr McLoughlin about it because you wanted his help about it presumably?---That's right.
PN2053
Okay. And he said he would. He said he'd come at about 10, between 9.30 and 10, help sort it out?---Mm.
PN2054
Okay. And I think your evidence is that you then told Mr Hall that Mr McLoughlin would be coming on the site at about 10?---Yes.
PN2055
Okay. And he did come back at about 10?---Yes, around that time, yes.
PN2056
And your evidence is at paragraph 39 that he asked you if you'd cleaned the sheds?---That's right.
PN2057
And you told him that you'd not had a chance to do that?---That's right.
PN2058
That's not consistent with him telling you not to do it is it, because when he comes back he - - -?---Well, it's not consistent, no, but he did say don't clean the sheds. So I can only stick to what I - - -
PN2059
But he asked you whether you've done it when he returns?---That's right.
PN2060
Okay. You said you'd not had a chance to do it. I think your evidence is also that they needed to be cleaned?---Yes, that's correct.
PN2061
No dispute about that. They hadn't been cleaned since the previous day?---Since the previous day.
PN2062
Yes, okay. Just to clarify, Mr McLoughlin's back at around 10 o'clock, and your evidence is that they needed to be cleaned, your
evidence is they hadn't been cleaned since the previous day. And we're talking about 10 o'clock now on
9 August?---Yes.
PN2063
They still hadn't been cleaned at 10 o'clock?---That's right.
**** IAN BLIGH XXN MR DOWLING
PN2064
Now, you say later on - I appreciate some things happened between that point and where I want to take you to. But you say at paragraph 53 in your statement that Mr McLoughlin called you and said you could go and clean the sheds because nobody was on the site. That's your evidence?---That's right.
PN2065
Now, again I just want to go back to the rectification work. At the point he calls you all of the rectification work as best as you're aware is done?---Yes, I went round and checked it.
PN2066
Okay. And he's telling you to clean the sheds, and your evidence is that you commenced cleaning the sheds?---I started to, yes.
PN2067
After he'd called you?---That's right.
PN2068
What time did he call you?---Well, it was in - I really can't remember. I think it was some time after WorkCover started doing their - WorkCover were on site at the same time, or later on during the day, and it's probably later on after I'd been with WorkCover doing the site and doing their interview, so it was later on in the afternoon. I really can't tell you the time.
PN2069
I think it's your evidence and it's the evidence of others also that WorkSafe came on the site about 1.30?---1.30, yes.
PN2070
How long do you think you might have spent with them?---How long were they there?
PN2071
Did you spend with them?---A couple of hours. The time it took, the talk and went for a walk and come back, and they typed up their, started typing up their safety walk and their interviews. It was probably in that time that I got a phone - got the phone call that we could go to clean the sheds.
PN2072
All right. So best as you can guess you think it was sort of three or something like that?---It probably could have been before that. Look, I really couldn't tell you to be honest on the times.
PN2073
Let's put the best time we can put on it. You think before three?---Well, WorkCover got there at 1.30, so it could have been 2.30, it could have been three. Look, I couldn't really tell you honestly.
**** IAN BLIGH XXN MR DOWLING
PN2074
Okay. Well, as I say, we appreciate it's some time ago and we're trying to put the best time on it we can. You think between 2.30 and three?---Okay.
PN2075
Now, I think your said your knock off time is normally 3.30?---3.30.
PN2076
So when you commenced cleaning the sheds I assume your aim was to finish it that day before your knock off?---Yes.
PN2077
Yes, okay. So you commenced cleaning it somewhere between 2.30 and three, your aim to finish it before 3.30, you'd almost finished it by the time you were told to stop?---No. I'd only started on the toilets and I finished the toilets and I stopped.
PN2078
Well, you don't say that in your statement. You say you commenced cleaning the sheds and the toilets. So you'd done a bit of work
on the sheds and the toilets?
---Just the toilets.
PN2079
To the best of - - -?---Well, it's not mentioned there, but that wasn't a question put to me, but started cleaning the sheds, it was part of the sheds' compound, the toilets, yes, that's the first one I tackled.
PN2080
All right. I just want to make sure your statement's accurate where it says commenced cleaning the sheds and toilets. You're not sure about it?---Well, I know I started cleaning the toilets, yes.
PN2081
Now, you've also given some evidence about a letter you wrote to Mr Kingham?
---That's right.
PN2082
About 5 September?---Correct.
PN2083
Mr Kingham replied to you didn't he?---No, I haven't received anything from Mr Kingham at all. The only thing that happened to me was Adrian McLoughlin come on site later on that day.
PN2084
Well, perhaps if I can hand you a copy of a document. There's an additional one there for you, your Honour. This is a letter, you'll see it's addressed to Ian Bligh (address supplied). Is that the correct address?---That's right.
PN2085
It says by post, and it's said to be a response in relation to your letter of
5 September. Does that jog your memory, that letter?---I've never seen that letter.
**** IAN BLIGH XXN MR DOWLING
PN2086
You've not seen it. Now, you've also provided a supplementary witness statement.
PN2087
THE SENIOR DEPUTY PRESIDENT: Did you want that letter tendered at all, Mr Dowling?
PN2088
MR DOWLING: I don't think this witness can properly identify it from what he said.
PN2089
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
MR DOWLING: Perhaps a convenient course, your Honour, might be to mark it for identification.
MFI #1 LETTER FROM MR KINGHAM TO MR BLIGH DATED 07/09/2006
PN2091
MR DOWLING: Thank you, your Honour.
PN2092
Have you got a copy of your supplementary statement there?---Which one, 1A is it?
PN2093
No, it's the new statement?---The new one, yes.
PN2094
Yes, that's it, thanks?---Which is 1BC is that the one?
PN2095
I don't need you to go to the attachments. You make reference in there to a flier?
---That's correct.
PN2096
And you make reference to a concern that it has your personal details on it?
---Correct.
PN2097
Those are the same personal details that used to be in the White Pages?---I'm in the country directory so it wouldn't be in the local Melbourne directory. The only place they can get it I would assume - I can't assume, but out the internet or through some other records.
PN2098
If you looked up the White Pages on the internet and you typed in Ian Bligh, that would be the details that would come up?---I would have - I'd presume it would. I don't know.
**** IAN BLIGH XXN MR DOWLING
PN2099
Perhaps I can tell you that I've done that and that's what came up?---Okay. Well, in the country directory, that's the only way I could assume it's come from.
PN2100
They're not unlisted details?---No.
PN2101
You've not sought to keep them secret in any way?---No.
PN2102
There's nothing further, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr McKeown?
<RE-EXAMINATION BY MR MCKEOWN [3.04PM]
PN2104
MR MCKEOWN: Can I take you to the flier that you have just referred to, that's IBC, and it says there in the middle of the page:
PN2105
To make matters worse this rat Ian Bligh who works for Kane Constructions was passing himself off as an OH&S rep and shop steward, and Skinner was his union organiser:
PN2106
And then it refers to:
PN2107
What a disgraceful dirty low down rat you've shown yourself to be Ian Bligh. You have proven to the world, the whole word what a piece of lying shit you really are. You will never be able to go and show your face in a pub or in the presence of decent working men as you will be forever known as a dirty lying rat that you are.
PN2108
Can you tell his Honour what reaction you had to seeing that flier?
PN2109
MR DOWLING: I'm not quite sure how this arises. There was only one question asked in relation to the flier, it was in relation to the details and whether they were kept personal. He gave the answer to that. This is evidence that could have been put in his statement. It's not reply material.
PN2110
THE SENIOR DEPUTY PRESIDENT: Yes. Mr McKeown?
PN2111
MR MCKEOWN: Well, his statement isn't put in as reply material, that's an incorrect assumption. The statement is the supplementary statement. However, your Honour, this - - -
**** IAN BLIGH RXN MR MCKEOWN
PN2112
MR DOWLING: Well, the statement - really it's a bit ludicrous. There were orders made that they file material, ours filed in reply, and any additional material in reply would be filed. The fact that this is described as a supplementary statement doesn't make it not a reply material. Clearly what my friend's described is something that could have been put, hasn't been put. This is not the place for it to be put now in re-examination. It doesn't arise out of cross-examination.
PN2113
THE SENIOR DEPUTY PRESIDENT: Yes. I think the issue is whether it's a matter which arises out of cross-examination.
PN2114
MR MCKEOWN: Yes, your Honour. And I would ask that - I can accept the argument on a technical level in terms of not arising out of re-examination, but I would submit to your Honour that you have to be aware in terms of, because you're being asked to assess the witness, the demeanour of the witness, his evidence to this Commission, and this is a relevant factor that comes into play because it's transpired between him filing his original statement and then the supplementary statement. In my submission, your Honour, I would ask for latitude on this point because it is extremely relevant because this case is to a very large extent about Mr McLoughlin and also associated with what we will say, or submit in terms of intimidation involved, and it is quite relevant - - -
PN2115
MR DOWLING: Well, your Honour - - -
PN2116
MR MCKEOWN: If I could finish. It is quite relevant for your Honour in making an assessment in terms of witnesses before this Commission of issues that arise.
PN2117
THE SENIOR DEPUTY PRESIDENT: But do you need to go beyond what's in point 15 of Mr Bligh's statement?
PN2118
MR MCKEOWN: Probably not, your Honour. It would only serve in terms of emphasising that point.
PN2119
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I don't grant liberty to re-open as it were.
MR MCKEOWN: Thank you, your Honour.
<THE WITNESS WITHDREW [3.08PM]
<STEVEN MARK BROADHEAD, SWORN [3.08PM]
<EXAMINATION-IN-CHIEF BY MR MCKEOWN
PN2121
MR MCKEOWN: Would you please state your full name and address for the record, please?---Steven Mark Broadhead (address supplied).
PN2122
And Mr Broadhead, who are you employed by?---Bovis Lend Lease.
PN2123
What position do you hold with that company?---Industrial Relations Manager.
PN2124
Mr Broadhead, have you made a statement in relation to this application before this Commission?---Yes.
PN2125
If the witness could be shown this document, please. Mr Broadhead, is that a copy of your statement?---Yes, it is.
PN2126
Is that a statement that runs for approximately three pages, some 14 paragraphs?
---Yes, that's correct.
PN2127
And in terms of, could I refer you to paragraph 3 of your statement under the heading, "Previous Statement", you refer to being interviewed by Inspector Furlong and Inspector Warren Cruse on 25 August 2006, do you see that?---Yes.
PN2128
And then in paragraph 5 you refer to the fact that they read you the statement carefully and to advise them of any changes. Could I just take you to paragraph 6. You refer to, "Attached to this statement and marked SB-A is a true copy of the statement I made on 25 August 2006." Do you see that?---Yes.
PN2129
Would you go to SB-A, is that the statement that you're referring to there?---Yes, it is.
PN2130
And that includes the attachments referred to in that statement?---Yes, it does.
PN2131
And is that your signature at the bottom of page 1 in terms of your statement?
---Yes, it is.
PN2132
Dated 25 August?---Yes.
PN2133
And the same process applies to the other pages?---Yes, that's correct.
PN2134
Have you had an opportunity to read recently your statement or both statements?
---Yes, I have.
**** STEVEN MARK BROADHEAD XN MR MCKEOWN
PN2135
Are there any amendments or corrections you wish to make to that statement?
---No, I'm happy with the statement.
PN2136
To the best of your knowledge is that statement true and correct?---Yes, it is.
PN2137
I tender that statement, your Honour.
PN2138
MR BORENSTEIN: Your Honour, before it's tendered, can I draw attention, please, to SB-A, paragraphs 22 to 25 which deal with events that occurred on 4 August of 2006. Now, that's not an incident that I'm able to find as being a particular of the application. Mr Dowling reminded me it wasn't mentioned in the opening either. I would object to that part of the statement being included on the grounds that it's not part of the application, it's not relevant for that reason and it should not form part of the tendered document.
PN2139
THE SENIOR DEPUTY PRESIDENT: And what was the other paragraph? That was it?
PN2140
MR BORENSTEIN: That was it.
PN2141
THE SENIOR DEPUTY PRESIDENT: That was it. Mr McKeown?
PN2142
MR MCKEOWN: Your Honour, simply because it's not referred to in the application doesn't automatically indicate that it should be excluded. It can form part of the background foundational material on which you've got to make a decision in regard to this particular Federal permit holder. Your Honour will recall in terms of the application I would submit that it still falls within the broad view, if I could put it that way, your Honour, that we're looking at this particular individual's conduct over a period of time between that period.
PN2143
I accept what my learned friend has said in terms of it not being included in the application as a separate discrete subject matter. But I'd submit to your Honour that there'd be - there is no basis why it should not be taken into consideration as part of your overall decision making process in this matter. Would your Honour just bear with me a moment? And it's also, your Honour, consistent with the direction that you gave that we file and serve material that we intend to rely upon in the application.
PN2144
So on that basis, your Honour, I would submit, if anything, it can be an issue of weight to be given to it. It should still remain in.
**** STEVEN MARK BROADHEAD XN MR MCKEOWN
PN2145
THE SENIOR DEPUTY PRESIDENT: Mr Borenstein?
PN2146
MR BORENSTEIN: Your Honour, this notion of leave things in and then saying it's all a matter of weight can be abused from time to time. Evidence has to be relevant to the allegations that are made and the allegations that are made are those contained in the application and you will see in the application that there is a detailed particularisation as to what is going to be alleged, as support for the claim that's being advanced here. This isn't contained within those particulars of what is going to be alleged. We're entitled to rely upon what the applicant says is going to be alleged in support of its application and this isn't there, and so we say it's not a question of weight. It's a question of it simply not being part of the case.
PN2147
MR MCKEOWN: Your Honour, if I might respond?
PN2148
THE SENIOR DEPUTY PRESIDENT: No, you needn't bother, Mr McKeown.
PN2149
MR MCKEOWN: Very well, your Honour.
THE SENIOR DEPUTY PRESIDENT: I'll accept the witness statement and attachments in the form they are, whilst not specifying the grounds. They are particular matters raised that appear to me to be of general relevance to the matter before me, so I'll admit them on that basis. I'll mark the statement of Mr Steven Broadhead, dated 4 April 2007, 14 paragraphs, seven attachments, SB-A to G, exhibit ABCC18.
EXHIBIT #ABCC18 STATEMENT OF STEVEN MARK BROADHEAD DATED 04/04/2007
PN2151
MR MCKEOWN: Thank you, your Honour.
PN2152
Mr Broadhead, have you made a supplementary statement in relation to this matter?---Yes.
PN2153
If the witness could be shown this document, please. Mr Broadhead, is that a copy of your supplementary statement?---Yes, it is.
PN2154
Is that a statement that commences at paragraph 15, is that correct?---Yes.
PN2155
And does that statement run for three pages and ends with paragraph 22?---Yes, that's correct.
**** STEVEN MARK BROADHEAD XN MR MCKEOWN
PN2156
And in terms of paragraph 17 you refer to a letter by Mr Eric Hensley. Would you go to SB-H. Is that the letter that you're referring to?---Yes, it is.
PN2157
In terms of paragraph 18, you refer to, "He said they had questioned him about Bovis employees and given him a copy of a shame
file flyer." That's in paragraph 18. Could you go to SB-J. Is that the flyer that you're referring to?
---Yes, it is.
PN2158
Have you had an opportunity to read this statement recently?---Yes, I have.
PN2159
Are there any amendments or corrections you wish to make to that statement?
---No.
PN2160
Is that statement true and correct to the best of your knowledge?---Yes, it is.
PN2161
I tender that statement, your Honour.
PN2162
MR BORENSTEIN: Your Honour, I have an objection here too. Your Honour will see at paragraphs 18 to 21 the statement contains an amount of material about what's said to be union activities to target Bovis employees and those union activities identify some persons, but don't identify Mr McLoughlin as having any part of that. I object to that material on the basis, firstly, of relevance. It has nothing to do with Mr McLoughlin or his entitlement to keep or not keep his right of entry permit and secondly, we say, your Honour, the material should not be received because it's inflammatory and prejudicial and doesn't bear on the issues that you need to decide about whether Mr McLoughlin should keep his permit or not. So we object to that.
PN2163
In relation to paragraph 22 we also object on the basis of the form, in the sense that it's an opinion and it contains hearsay, but we note what your Honour has said about these sort of objections and we're content to have it treated in the same way. That is, to be a matter for submissions as to what you want to make of that paragraph. But in relation to paragraphs 18 to 21 we say they're in a different category. I seek to introduce a document which is sought to be used to embarrass Mr McLoughlin in relation to his claim by some imputation about him, but the material itself you will see makes no reference to him and it shouldn't be allowed in on that basis, your Honour.
PN2164
THE SENIOR DEPUTY PRESIDENT: Yes. Mr McKeown?
**** STEVEN MARK BROADHEAD XN MR MCKEOWN
PN2165
MR MCKEOWN: Thank you, your Honour. Your Honour, clearly we say this material is relevant. It's relevant on the basis that this Commission has been called upon to make decisions in terms of credit issues. That involves your Honour obviously taking into account the witness evidence as being given before the Commission and the demeanour of witnesses before this Commission. It's directly relevant, your Honour, because of the issues involved in that which are quite clearly intimidation and, your Honour, I have to say, it's said that there's no - - -
PN2166
THE SENIOR DEPUTY PRESIDENT: By whom, Mr McKeown?
PN2167
MR MCKEOWN: Well, it's identified as CFMEU organisers in paragraph 18 of the statement, your Honour, and when one goes to the flyer itself, whilst it can be said in terms of there's no direct reference to Mr McLoughlin, clearly it can be inferred by the nature of the proceedings before you and in my submission, your Honour, it is more than relevant in terms of - - -
PN2168
THE SENIOR DEPUTY PRESIDENT: I think more than an inference would be required for a matter of that nature, would it not, Mr McKeown?
PN2169
MR MCKEOWN: Well, it's a matter, your Honour, if your Honour says more than an inference, what we say is, it's a matter that has to be taken into account because your Honour has been called upon to assess the various witnesses called to this Commission. If there's a relevant factor that may or may not affect that situation, it is relevant that we bring it to the Commission's attention. It's clearly relevant. I mean, to disassociate Mr McLoughlin from his union at this point in time, you only have to look at the body of the court, that there is a strong support from his union, from his colleagues, and it is not any stretch of the imagination at all in terms of what has transpired in terms of the flyer and the evidence there about organisers, identified CFMEU organisers, in relation to the flyer.
PN2170
What we say, your Honour, is that clearly this is material, and obviously it's a question of weight that can be attributed to it, because obviously in terms of the flyer, one would say obviously no direct reference to Mr McLoughlin but easily there is a very strong inference, your Honour, in terms of it and the contents of it. Now, the terms of it, your Honour, being inflammatory and prejudicial, we say to that, your Honour, that this Commission should be properly informed as to the circumstances in which witnesses are being called upon to come to this Commission and those matters are extremely relevant.
**** STEVEN MARK BROADHEAD XN MR MCKEOWN
PN2171
THE SENIOR DEPUTY PRESIDENT: Mr Borenstein?
PN2172
MR BORENSTEIN: I have nothing else.
PN2173
THE SENIOR DEPUTY PRESIDENT: Yes. I propose to exclude paragraphs 18 to 21. In my view it's not relevant to the matters before me, which is the entitlement or otherwise of Mr McLoughlin to obtain his permit. In my view there is no sufficient basis to infer relevance to Mr McLoughlin of the matters dealt with of bearing. Accordingly I'll admit the statement of Mr Broadhead, paragraphs 15 to 17, 22, attachments SB-H and that will be marked exhibit ABCC19.
MR MCKEOWN: Thank you, your Honour.
EXHIBIT #ABCC19 STATEMENT OF STEVEN MARK BROADHEAD
MR MCKEOWN: I have got no further questions.
<CROSS-EXAMINATION BY MR BORENSTEIN [3.26PM]
PN2176
MR BORENSTEIN: Mr Broadhead, I want to ask you some questions about your first statement, the one that you made to the inspectors which you should have under a sheet titled Attachment SB-A?---SB-O?
PN2177
A?---A.
PN2178
Have you got that?---Yes.
PN2179
You'll see at the bottom of the first page under the heading "Friday, 9 June 2006" you set out some information about a visit to the site by Bill Oliver and Adrian McLoughlin?---Yes.
PN2180
You're familiar with Bill Oliver?---Yes.
PN2181
You know who he is?---Yes.
PN2182
He's the Assistant State Secretary of the organisation of the CFMEU in Victoria?
---Yes.
PN2183
And you were under no doubt when these two men came on the site that he was the senior of the two?---Yes.
**** STEVEN MARK BROADHEAD XXN MR BORENSTEIN
PN2184
And Mr McLoughlin was tagging along as second man, sort of thing?---Yes.
PN2185
And you tell us in paragraph 12 that Mr Oliver, in walking on the site, pointed out that there was some asbestos material on the site?---Yes.
PN2186
And up until that time you were not aware of that material on the site?---No, that's correct.
PN2187
And following that discovery, you took appropriate steps to isolate the area and take care of the asbestos?---Yes. The foreman on site did that.
PN2188
Yes, when I say you, I mean the company. You then had a conversation with Mr Oliver about shop stewards, you tell us about in paragraph 12, in the second half?---Yes.
PN2189
And then following that, Mr Oliver and Mr McLoughlin left the site?---Yes, soon after.
PN2190
Can I take it that the purpose of including this episode in your statement was that the inspectors who were interviewing you asked you to tell them about any events or any occasions when Mr McLoughlin come on the site?---Yes.
PN2191
This was one occasion?---Yes.
PN2192
So you told them about it?---Yes.
PN2193
Apart from that you had no other complaint about Mr McLoughlin about this occasion?---Yes, that's right.
PN2194
In the next section you talk about a visit that Mr McLoughlin made to the site on 12 June 2006?---That's correct.
PN2195
In paragraph 17 you tell us that Mr McLoughlin said he was coming onto the site under section 58 of the OH&S Act?---Yes, that's correct.
PN2196
You say to him that he had to follow the rules under the OH&S Act?---That's correct.
PN2197
Which rules were you referring to when you said that to him?---I was referring to acting in a proper manner.
**** STEVEN MARK BROADHEAD XXN MR BORENSTEIN
PN2198
What was it that he was doing, in your mind, that was not acting in a proper manner at that time?---He's previously been onsite without following our guidelines.
PN2199
Which particular guidelines?---The Bovis Lend Lease guidelines on right of entry - on signing in. He hadn't signed in the visitors' register.
PN2200
Have you put that in your statement?---No, but I had known that because when I was called by Trevor Kemp, he told me.
PN2201
Are you talking about 12 July?---12 July.
PN2202
You've made reference to some things that Trevor Kemp told you in your statement, you haven't made reference to that?---His permit - yes, his permit and he hadn't signed in.
PN2203
But there's no reference to not signing in?---Not in the statement there's not, no.
PN2204
Is there a reason for that?---No, there's no reason for that. Trevor tells me when people come onsite. If they don't follow the guidelines I take that as not signing in and not having - not showing the permit.
PN2205
You assumed that - - -?---He specifically said permits.
PN2206
I'm talking about signing in. You're assuming that when Trevor told you that he asked for the permit that that includes that he hadn't signed in, that McLoughlin hadn't signed in?---When he said that he hadn't complied with the right of entry provisions we assume those things to be - we assume that some of those things are our guidelines as well.
PN2207
You weren't there and so you can't say for certain, it's an assumption on your part?---It's what Trevor told me, yes.
PN2208
No, no, it's an assumption from what Trevor told you?---Yes, that's right.
PN2209
In relation to paragraph 20 you have no direct knowledge yourself of any of the matters that are set out there, it's simply setting out what you've been told by Tonkin Hill or Trevor Kemp?---That's correct.
**** STEVEN MARK BROADHEAD XXN MR BORENSTEIN
PN2210
You were not told by either of those two gentlemen that there was any disruption to the site on that date by Mr McLoughlin?---No.
PN2211
I have nothing further, thank you, your Honour.
PN2212
THE SENIOR DEPUTY PRESIDENT: Anything arising, Mr McKeown?
PN2213
MR MCKEOWN: Nothing arising, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence,
Mr Broadhead, you're excused from these proceedings?---Thank you.
<THE WITNESS WITHDREW [3.34PM]
PN2215
THE SENIOR DEPUTY PRESIDENT: Yes, Mr McKeown.
MR MCKEOWN: Your Honour, I call Trevor Kemp.
<TREVOR CHARLES KEMP, SWORN [3.35PM]
<EXAMINATION-IN-CHIEF BY MR MCKEOWN
PN2217
MR MCKEOWN: Would you please state the for record your full name and address?---Trevor Charles Kemp (address supplied).
PN2218
Mr Kemp, have you made a statement in relation to this matter?---Yes, I have.
PN2219
Could the witness be shown this document, please.
PN2220
Mr Kemp, is that a copy of your statement?---Yes, it is.
PN2221
It's dated 4 April 2007?---Yes.
PN2222
It runs for three pages, some five paragraphs?---Yes, it is.
PN2223
Could I just take you to paragraph 2 of your statement. You make reference there to being interviewed in Inspectors Murray Furlong
and Warren Cruse on
25 August 2006. Do you see that?---Yes, I do.
PN2224
Then at the last sentence of that paragraph you refer to:
PN2225
Attached to this statement and marked TKA is a copy of my statement dated 25 August 2006.
PN2226
?---Yes.
PN2227
Could you just go to TKA, please?---Yes.
PN2228
That statement there, does that run for approximately six pages, some
65 paragraphs?---Yes, it does.
PN2229
In terms of have you had an opportunity recently, Mr Kemp, to read both your statement to this Commission and the statement that I've just taken you to?---Yes, I have.
PN2230
Are there any amendments or corrections you wish to make to that statement?
---No, there isn't.
PN2231
Are those statements, to the best of your knowledge, true and correct?---Yes, they are.
**** TREVOR CHARLES KEMP XN MR MCKEOWN
PN2232
I tender - - -
PN2233
MR BORENSTEIN: Your Honour, paragraph 58 to 62 in TKA covers the same ground that your Honour disallowed in the previous witness's
statement, that is
4 August 2006, so that should be deleted.
PN2234
THE SENIOR DEPUTY PRESIDENT: Sorry, 58 to - - -
PN2235
MR MCKEOWN: Sorry, there may be some confusion. There was no exclusion on that last statement as I understood it, your Honour.
PN2236
THE SENIOR DEPUTY PRESIDENT: In respect to 4 August, no.
PN2237
MR BORENSTEIN: I'm sorry, your Honour, my mistake.
PN2238
THE SENIOR DEPUTY PRESIDENT: Very well. So there's no issue there.
Mr McKeown, did you take you witness to the contents of his second statement of 3 October?
PN2239
MR MCKEOWN: No, I'm about to do that, your Honour.
PN2240
THE SENIOR DEPUTY PRESIDENT: No, no, sorry the second statement to the Building Commissioner.
PN2241
MR MCKEOWN: thank you, your Honour, I'm indebted for that. It's been a long day.
PN2242
THE SENIOR DEPUTY PRESIDENT: Yes, it's late in the day.
PN2243
MR MCKEOWN: Particularly when you start at four, your Honour.
PN2244
Could I take you to paragraph 4 of your statement, Mr Kemp. You there refer to a second interview with Inspectors Furlong and Cruse on 3 October. Do you see that?---Statement number - - -
PN2245
This is paragraph 4 of your statement to this Commission. Just take your time.
PN2246
THE SENIOR DEPUTY PRESIDENT: Right at the front.
**** TREVOR CHARLES KEMP XN MR MCKEOWN
PN2247
THE WITNESS: Section A?
PN2248
THE SENIOR DEPUTY PRESIDENT: No, no.
PN2249
MR MCKEOWN: Just go back to your original - - -?---This one here, 4 April?
PN2250
If you go to page 2, paragraph 4?---Okay, yes.
PN2251
You make reference to an interview on 3 October 2006?---Yes.
PN2252
To being interviewed by Inspectors Furlong and Cruse?---Yes.
PN2253
Again, could I take you to TKB?---Yes.
PN2254
Is that a statement made on 3 October that runs for three pages, some 28 paragraphs?---Yes, it is.
PN2255
Is that your signature at the bottom of each page?---Yes, it is.
PN2256
Is that statement, to the best of your knowledge - have you read that statement recently?---Yes, I have.
PN2257
Is that statement true and correct to the best of your knowledge?---Yes, it is.
I tender that.
EXHIBIT #ABCC20 WITNESS STATEMENT OF TREVOR CHARLES KEMP DATED 04/04/2007
PN2259
MR MCKEOWN: There is a further attachment but it's contained within TKB, which is TK1. It's referred to in the statement.
PN2260
THE SENIOR DEPUTY PRESIDENT: I see, yes.
PN2261
MR MCKEOWN: Mr Kemp, have you made a further statement in relation to this matter?---I've got a section here somewhere.
PN2262
No what I'm asking Mr Kemp - well actually it will be easier. If I can just hand up this document to the witness. Mr Kemp is that a copy of a supplementary witness statement you've made?---Yes it is.
**** TREVOR CHARLES KEMP XN MR MCKEOWN
PN2263
Does that statement commence with paragraph 6?---Yes it does.
PN2264
Does that statement run for nearly three pages and ends in paragraph 16?---Yes it does.
PN2265
Have you had an opportunity to read this statement recently?---Yes I have.
PN2266
Is that statement true and correct to the best of your knowledge?---Yes it is.
I tender that Your Honour.
EXHIBIT #ABCC21 SUPPLEMENTARY STATEMENT OF KEVIN KEMP OF SOME 11 PARAGRAPHS 16 INCLUSIVE JULY 2007
MR MCKEOWN: Thank you Your Honour I don't have any further questions at this stage.
<CROSS-EXAMINATION BY MR BORENSTEIN [3.43PM]
PN2269
MR BORENSTEIN: Mr Kemp in preparing this statement with the investigators from the ABCC they asked you to recount any incidences that you could remember of Mr McLoughlin coming on the site for any purpose?---That's correct.
PN2270
You've gone through the various incidents and they have been included in the statement?---That's correct.
PN2271
Have you included in the statement occasions - sorry I'll approach it from another way. Are the occasions that you've mentioned in this statement - I'm looking now at the first of your statements which covers a period up to August 2006?---Yes.
PN2272
You've got 2 June, 7 June, 8 June, 21 June, 26 June, 6 July, 11 July, 26 July .....
4 August?---Yes.
PN2273
Are they all of the occasions on which Mr McLoughlin came to the site during
the - - -?---to the best of my knowledge, they are, yes.
PN2274
Thank you. Now in terms of the first one, 2 June is it your position that not having toilet facilities on a building site is an acceptable Occupational Health and Safety situation?---We were doing exploratory work. It was only for two or three hours on the project to do some investigations and it was only a one off situation so we were actually doing exploratory help and then they were leaving the site.
**** TREVOR CHARLES KEMP XXN MR BORENSTEIN
PN2275
What are workers on a site supposed to do in that sort of a situation for facilities?
---I'd organised for them to have toilets in the adjoining building if they needed to. I spoke to the guys about that. There was
a building over the road.
PN2276
Did you explain that to Mr McLoughlin?---I didn't really have a chance to explain that to Mr McLoughlin.
PN2277
Well you had a discussion with Mr McLoughlin. You had time to ask him for his permit which he seems to have shown you?---Yes.
PN2278
You had time to explain to him that you were doing the preliminary works?---Yes.
PN2279
But you didn't have time to tell him that you'd made arrangements for facilities for the workers?---He wasn't really interested in listening to too much that I said and he was more intent on asking the guys to leave the site and at that time I didn't explain that to him, I agree, but I didn't have an opportunity. I didn't feel I had an opportunity to.
PN2280
Well he wasn't listening, but nonetheless, you proceeded to tell him that you were - what sort of work you were doing on the site and how long it was going to be and so on, so you could have also mentioned couldn't you, that there were facilities available?---Yes I could have, yes.
PN2281
If there hadn't been facilities available - hypothetically - if there hadn't been facilities available then Mr McLoughlin's - - -
PN2282
MR MCKEOWN: Well with respect where does this take us - - -
PN2283
THE SENIOR DEPUTY PRESIDENT : Well if you can just wait a minute.
PN2284
MR BORENSTEIN: It's cross-examination Your Honour, my friend will find out, it's got a point to it?
PN2285
THE SENIOR DEPUTY PRESIDENT: Well if you could just explain the relevance to me Mr Borenstein.
PN2286
MR BORENSTEIN: Well I'm happy to do that perhaps in the absence of the witness.
**** TREVOR CHARLES KEMP XXN MR BORENSTEIN
PN2287
THE SENIOR DEPUTY PRESIDENT: Yes, very well. If you can just wait outside for one moment please Mr Kemp.
<THE WITNESS WITHDREW [3.47PM]
PN2288
MR BORENSTEIN: Your Honour the point of the exercise is this.
Mr McLoughlin has come on the site, he's been criticised for asking the people to leave the site because there are no toilet facilities.
It's accepted by this witness that there were no toilet facilities on the site. What he says to us now, even though it's not in
the statement, is that he had made arrangements for the toilet facilities to be available down the road. He's also accepted that
he didn't tell
Mr McLoughlin that. Now what I'm wanting to get to with him, is that if there were no toilets on the site, does he accept that
that was an unacceptable OH&S situation and then to put the position to Mr McLoughlin who didn't know and was therefore in that
situation when he makes the call about people leaving the site.
PN2289
THE SENIOR DEPUTY PRESIDENT: Very well, Mr McKeown?
PN2290
MR MCKEOWN: I'll withdraw the objection Your Honour.
THE SENIOR DEPUTY PRESIDENT: Very well re-call Mr Kemp please.
<TREVOR CHARLES KEMP, RECALLED [3.49PM]
<CROSS-EXAMINATION BY MR BORENSTEIN, CONTINUING
PN2292
MR BORENSTEIN: Sorry for the interruption Mr Kemp?---That's okay.
PN2293
I'm asking you to consider a hypothetical situation where there are no toilet facilities on the site and there are no arrangements made for facilities off the site. Now you'd agree with me wouldn't you, that that would be an unacceptable position?---I'd already spoken to all the guys and - - -
PN2294
I understand all that. I'm just asking you to answer the hypothetical. I'm not worried about what actually happened on the site
on that day, I'm asking you a situation where we've got a builder on the site, people working on the site - there are no toilet facilities
on the site and there are no alternative facilities available?
---When we set up our site sheets initially, we go through the same sort of thing in every project. We've got to put a toilet in
at some point in time and it's no different to that circumstance where you initially need to put the toilets on the site to provide
the facilities for the guys on the job.
PN2295
I'm sorry if I'm not making myself clear. I'm asking you to separate yourself from that day with Mr McLoughlin and just take any site you like?---Yes.
PN2296
A building site where a builder has got people working on a site and there are no toilet facilities on the site and the builder hasn't made arrangements for other facilities nearby. Would you agree with me that such a situation is unacceptable from an OH&S point of view?---Yes probably, I suppose you're right.
PN2297
Yes, and on this occasion there were no toilet facilities on the site - you've told you?---Yes.
PN2298
And from Mr McLoughlin's point of view, you hadn't informed him of the arrangements you'd made for the blokes next door or down the road, you've told us that, correct?---Yes.
PN2299
Can you understand that from his point of view, Mr McLoughlin is confronting the situation we were discussing a moment ago where so far as he knows, there are no toilet facilities on the site and there are no other arrangements because nobody's told him about it. Now in that situation?---He didn't even ask me that question, he just came up and said - - -
PN2300
Whether he asked you or not, he didn't know?---At that time I was more concerned about the fact that they were going to leave site and leave an open hole which was going to be unsafe so it was probably at that point in time, my main concern was that if the guys went home that I had a six metre hole that we had arranged to have protected overnight made safe.
**** TREVOR CHARLES KEMP XXN MR BORENSTEIN
PN2301
THE SENIOR DEPUTY PRESIDENT Mr Kemp according to your statement the first thing that occurred when Mr McLoughlin approaches you is he says he's unhappy you don't have any site sheds?---Yes.
PN2302
Wouldn't you logically advise him of the alternate arrangements you have in place?---Well they weren't sheds, it was just over the road, so I didn't sort of think about that at that point in time, no.
PN2303
MR BORENSTEIN: You also go on - just picking up the point you were making a moment ago about protecting the excavation which you'd done - you say in paragraph 15 that Mr McLoughlin agreed that the site should be made safe before the people left?---Yes that's right.
PN2304
He was also not being silly about it?---I agree with that, absolutely I agree with that.
PN2305
Can I go on to the next part of your statement which is 7 June?---Yes.
PN2306
That's simply recording a communication you had?---Yes.
PN2307
There's no criticism you're making about anything there is there?---No, nothing at all.
PN2308
The same on 8 June?---No, exactly.
PN2309
This is just simply a communication which the inspectors have asked you to tell them about?---Yes.
PN2310
We've heard from Mr Broadhead about the visit which Mr McLoughlin and
Mr Oliver made on 9 June. Are you familiar with Mr Oliver?---Yes.
PN2311
You know he's the Assistant State Secretary of the union?---Yes.
PN2312
Mr Broadhead's told us that to his eye Mr Oliver was the man in charge and
Mr McLoughlin was assisting him sort of thing. Do you agree with that?---Sorry, say that again?
PN2313
The two men that have come on to the site, Mr Oliver is the Assistant Secretary and Mr McLoughlin is the organiser?---Yes.
**** TREVOR CHARLES KEMP XXN MR BORENSTEIN
PN2314
Mr Broadhead's told us that to his eye, Mr Oliver was in charge as between the two. Do you agree with that?---Yes I would have thought so, yes.
PN2315
When they were on the site, Mr Oliver found some asbestos?---Yes.
PN2316
Which was brought to your attention?---Yes.
PN2317
Then there was a discussion about I think shop stewards or something?---Not with me, no.
PN2318
Not with you?---No, there was no discussion about that.
PN2319
Then they left the site?---Yes.
PN2320
You have no - you make no complaint in your statement about anything that they'd done on that day. Is that correct?---Only initially
I wasn't aware that
Mr Skinner had been invited by our - yes up until that - - -
PN2321
Once that was sorted out, there was no problem?---No.
PN2322
The next incident that you refer to is 21 June?---Yes.
PN2323
You say that you asked Mr McLoughlin for his permit and he declined to give that to you?---Yes.
PN2324
Then you say that he said he'd be around for the next two years for the life of the project?---Yes.
PN2325
You say you were intimidated because you inferred that he would be causing problems for the rest of the project?---Yes, that's the way I felt.
PN2326
Yes, I just want to understand this a little bit more. Was your concern that
Mr McLoughlin was saying that he was going to be visiting the project for the next two years or whatever it was. Is that what the
concern was?---Well, it just - the way he said it I suppose was - - -
PN2327
You thought he was going to make trouble on the site for the next two years?---It just seemed to be the way that he said it, in the tone that he said it, that that's what he was inferring. Yes.
**** TREVOR CHARLES KEMP XXN MR BORENSTEIN
PN2328
So when you say that you felt intimidated, did you mean by that that you were concerned or anxious that he was going to make trouble on the site?---Mm.
PN2329
THE SENIOR DEPUTY PRESIDENT: Mr Borenstein I might interrupt if you were going to move to another date.
PN2330
MR BORENSTEIN: I am going to be a little while yet with this witness.
PN2331
THE SENIOR DEPUTY PRESIDENT: Yes, very well. I might interrupt you at this point. But before I do Mr Kemp, can I take you back
to the Friday, 2 June and to the notes attached to the statement of the Building Commissioner - - -?
---What is it, 2 June?
PN2332
- - - Furlong. Yes, and it's the note PK1 attached, the big - your diary?---Yes, yes.
PN2333
And it goes to the issue again of not advising Mr McLoughlin what the toilet - that there were alternate arrangements. There about half way down, Mr McLoughlin says he's onsite due to the fact that there were no sheds and that's in breach of the Health & Safety Act. You indicated that the men would be onsite for only another hour and they would be leaving the site - they were nearly finished. But again you didn't - you responded to him to - with that response - - -?---Yes.
PN2334
- - - to his complaint about the absence of sheds but you didn't add to that explanation that there were arrangements in place to
cater for the men's needs?
---Yes, that's right. When that question was asked, I in my mind saw it as a question of sheds on the site. I didn't put the two
of them together. And I suppose at the time I was - I was more concerned about what was happening and just particularly trying to
get - - -
PN2335
Yes?---It wasn't something at that point that came to my mind. It's only really since we've talked about it now that it's - - -
**** TREVOR CHARLES KEMP XXN MR BORENSTEIN
PN2336
But that would have been an obvious way to deal with a compliant would it not, that - to explain there were satisfactory arrangements in place?---Well, I didn't feel like - that there was - I didn't even think about it. Didn't even think about it. I was probably more caught up in the situation of what was happening.
PN2337
Yes. Very well. Alright, well we'll resume tomorrow morning. I'm afraid you'll have to return again tomorrow Mr Kemp?---Thank you.
<ADJOURNED UNTIL WEDNESDAY 11 JULY 2007 [3.59PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
JOE BRINZI, SWORN PN1187
EXAMINATION-IN-CHIEF BY MR MCKEOWN PN1187
EXHIBIT #ABCC8 STATEMENT OF JOE BRINZI WITH ATTACHMENTS DATED 04/04/2007 PN1201
CROSS-EXAMINATION BY MR DOWLING PN1207
THE WITNESS WITHDREW PN1259
ANTHONY TRANTINO, SWORN PN1262
EXAMINATION-IN-CHIEF BY MR MCKEOWN PN1262
EXHIBIT #ABCC9 STATEMENT OF ANTHONY TRANTINO PN1287
CROSS-EXAMINATION BY MR BORENSTEIN PN1288
RE-EXAMINATION BY MR MCKEOWN PN1380
THE WITNESS WITHDREW PN1399
JOHN WILLIAM GLASS, SWORN PN1401
EXAMINATION-IN-CHIEF BY MR MCKEOWN PN1401
EXHIBIT #ABCC10 STATEMENT OF JOHN GLASS DATED 05/04/2007 WITH ATTACHMENTS JGA, JGB PN1422
EXHIBIT #ABCC11 SUPPLEMENTARY STATEMENT OF JOHN GLASS DATED JULY 27 PN1439
CROSS-EXAMINATION BY MR BORENSTEIN PN1441
RE-EXAMINATION BY MR MCKEOWN PN1504
THE WITNESS WITHDREW PN1522
GEOFFREY PHILLIP HALL, SWORN PN1525
EXAMINATION-IN-CHIEF BY MR MCKEOWN PN1525
EXHIBIT #ABCC12 STATEMENT OF GEOFFREY PHILLIP HALL DATED 04/04/2007 PN1542
EXHIBIT # ABCC13 SUPPLEMENTARY STATEMENT OF GEOFFREY HALL DATED JULY 2007 PN1550
CROSS-EXAMINATION BY MR DOWLING PN1551
RE-EXAMINATION BY MR MCKEOWN PN1663
THE WITNESS WITHDREW PN1680
BENJAMIN JOHN BARRETT, AFFIRMED PN1682
EXAMINATION-IN-CHIEF BY MR MCKEOWN PN1682
EXHIBIT #ABCC14 STATEMENT OF BENJAMIN BARRETT DATED 04/04/2007 WITH ATTACHMENT PN1705
CROSS-EXAMINATION BY MR DOWLING PN1708
RE-EXAMINATION BY MR MCKEOWN PN1782
THE WITNESS WITHDREW PN1785
DALE ROBERT HAMMETT, AFFIRMED PN1789
EXAMINATION-IN-CHIEF BY MR MCKEOWN PN1789
EXHIBIT #ABCC15 STATEMENT OF DALE ROBERT HAMMETT DATED 04/04/2007 PN1799
CROSS-EXAMINATION BY MR DOWLING PN1803
RE-EXAMINATION BY MR MCKEOWN PN1906
THE WITNESS WITHDREW PN1930
IAN BLIGH, SWORN PN1932
EXAMINATION-IN-CHIEF BY MR MCKEOWN PN1932
EXHIBIT #ABCC16 STATEMENT OF IAN BLIGH DATED 04/04/2007 PN1956
EXHIBIT #ABCC17 STATEMENT OF IAN BLIGH DATED JULY 2007 PN1966
CROSS-EXAMINATION BY MR DOWLING PN1967
MFI #1 LETTER FROM MR KINGHAM TO MR BLIGH DATED 07/09/2006 PN2090
RE-EXAMINATION BY MR MCKEOWN PN2103
THE WITNESS WITHDREW PN2120
STEVEN MARK BROADHEAD, SWORN PN2120
EXAMINATION-IN-CHIEF BY MR MCKEOWN PN2120
EXHIBIT #ABCC18 STATEMENT OF STEVEN MARK BROADHEAD DATED 04/04/2007 PN2150
EXHIBIT #ABCC19 STATEMENT OF STEVEN MARK BROADHEAD PN2174
CROSS-EXAMINATION BY MR BORENSTEIN PN2175
THE WITNESS WITHDREW PN2214
TREVOR CHARLES KEMP, SWORN PN2216
EXAMINATION-IN-CHIEF BY MR MCKEOWN PN2216
EXHIBIT #ABCC20 WITNESS STATEMENT OF TREVOR CHARLES KEMP DATED 04/04/2007 PN2258
EXHIBIT #ABCC21 SUPPLEMENTARY STATEMENT OF KEVIN KEMP OF SOME 11 PARAGRAPHS 16 INCLUSIVE JULY 2007 PN2267
CROSS-EXAMINATION BY MR BORENSTEIN PN2268
THE WITNESS WITHDREW PN2287
TREVOR CHARLES KEMP, RECALLED PN2291
CROSS-EXAMINATION BY MR BORENSTEIN, CONTINUING PN2291
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