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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 18219-1
COMMISSIONER REDMOND
C2008/2281
s.496(1) - Appl’n for order against industrial action (federal system).
Dempsey Australia Pty Ltd
and
Maritime Union of Australia, The
(C2008/2281)
SYDNEY
10.08AM, WEDNESDAY, 05 MARCH 2008
Continued from 3/3/2008
Hearing continuing
MR C MCARDLE: I continue my appearance with Mr Fitzsimons.
PN2
MS C HOWELLS: I appear with MS T WHITE of Slater and Gordon, and MR W SMITH of the MUA.
PN3
THE COMMISSIONER: Thank you.
PN4
MR P COLEMAN: Commissioner, the Australian Building Construction Commissioner intervened in the proceedings pursuant to section 72. A notice to that effect was faxed to the Melbourne registry yesterday afternoon. I'm just wondering whether that has been received?
PN5
THE COMMISSIONER: Yes, it has.
PN6
MR COLEMAN: Your Honour, the intervention is pursuant to section 72. I appear with MR R DALGLEISH. I seek leave to appear as counsel.
PN7
THE COMMISSIONER: Yes. Any objections, Ms Howells?
PN8
MS HOWELLS: This is the first we've heard of it, Commissioner.
PN9
THE COMMISSIONER: We all get surprises.
PN10
MS HOWELLS: I reserve my position.
PN11
THE COMMISSIONER: Thank you. Leave is granted. The parties went away to have a talk to see if they could resolve their differences. I take it they haven't?
PN12
MR MCARDLE: That's confirmed, Commissioner, but I must say it's not without trying by both sides with all fairness.
PN13
THE COMMISSIONER: Yes. Yes, Mr McArdle, I received your document seeking orders. That document doesn't comply with the manner in which this Commission issues orders. I wouldn't be prepared to issue orders based on that document. Do you have another document? Do you have a document in the form that is normally set out by this Commission?
PN14
MR MCARDLE: Well, I would, depending on the order you're disposed to make, Commissioner, I would undertake to draft it and hand it up.
PN15
THE COMMISSIONER: I'm not disposed to make any orders unless there's an order that's served on the union so that they can defend that order, and I would then deal with the order as presented to me in the normal way this Commission works, Mr McArdle.
PN16
MR MCARDLE: Yes. Well, Commissioner, if it was pointed out in what way it was wrong then it mean this would be made.
PN17
THE COMMISSIONER: Well, perhaps I might give you a copy of one of our orders and adjourn for a half hour while you have a look at it?
PN18
MR MCARDLE: Absolutely, Commissioner, if form is the problem.
PN19
THE COMMISSIONER: Okay, I'm going to adjourn till 10.30. The Commission stands adjourned.
<SHORT ADJOURNMENT [10.11AM]
<RESUMED [11.08AM]
PN20
THE COMMISSIONER: Yes, Mr McArdle?
PN21
MR MCARDLE: Yes, Commissioner. My colleague McEvoy made use of the adjournment to return to the office and draft a document which we hand up as a proposed order. My friend has been given two copies and Mr Coleman has been given two copies.
PN22
THE COMMISSIONER: Thank you.
PN23
MR MCARDLE: Do I need to speak to it, Commissioner?
PN24
THE COMMISSIONER: If you wish to speak to it you can. You're running the case. If you don't wish to speak to it - - -
PN25
MR MCARDLE: Of course it is self explanatory, Commissioner. It reflects your powers, indeed your obligations under section 496 and following, and it describes a means by which that should be executed.
PN26
THE COMMISSIONER: Yes, good.
PN27
MR MCARDLE: Commissioner, the obligation of the Commission is to satisfy itself that there is action occurring and that is not authorised action. To that effect it is necessary for us to provide evidence. Mr Fitzsimons has prepared an affidavit which has been forwarded to my friend and Mr Coleman, who I did not realise was in the matter, only received his today. I tender a copy and I'll call Mr Fitzsimons to swear this.
PN28
THE COMMISSIONER: Yes.
PN29
MS HOWELLS: If it please the Commission, no objection to the tender but there are a couple of preliminary issues which I wish to raise which perhaps are better dealt with before Mr Fitzsimons - - -
PN30
THE COMMISSIONER: You have an objection?
PN31
MS HOWELLS: No. Preliminary issues which I do need to raise before Mr Fitzsimons goes into the witness box.
PN32
THE COMMISSIONER: Yes, Ms Howells?
PN33
MS HOWELLS: The first matter, Commissioner, relates to the identity of the party who brings the application before the Commission. The original application with which you were served identifies the applicant as Dempsey Industries, Dempsey Australia Pty Ltd. The application with which we were served last night identifies just the name of the applicant, Construction Diving Services Pty Ltd. The affidavit which we received last night gives as the title of the proceedings Dempsey Australia Pty Ltd and Construction Diving Services Pty Ltd and the Maritime Union of Australia.
PN34
The question of the identity of the applicant is probably appropriate that the Commission know who is making the application in any event, but the Commission has to be satisfied in order to grant relief that the applicant is a party in fact by the industrial action, alleged industrial action. It's a little difficult for the Commission to satisfy itself of that without knowing the proper identity of the applicant.
PN35
The second and related matter is that the Building and Construction Commission purports to intervene in respect of an application by Dempsey Industries. Again that certainly came as news to us at the bar table. The relevant provision requires that the building industry participant or building work. Again, we don't know in respect of which alleged participants the intervention has been made, so we'd like to know in respect of which building industry participants the commission has purported to intervene.
PN36
Those matters also relate to some issues which we will be seeking to raise in respect of the agreement and the identity of the parties to the agreement. So that's the first matter which we would seek that that be clarified by both of the other parties at the bar table. The second matter is we have served a notice to produce seeking some relevant documents, and we would wish to call on that notice before any witness is called so that we could possibly utilise these documents in cross-examination. So if it's convenient for the Commission I call for those documents.
PN37
THE COMMISSIONER: Yes. Mr McArdle, did your client receive the notice to produce?
PN38
MR MCARDLE: Yes, and they would have got some documents to produce. But it would have been helpful had we been told an hour ago that the material was to be called, it would have been given an hour ago. We've got it here.
PN39
THE COMMISSIONER: Well, you can give it now, Mr McArdle.
PN40
MR MCARDLE: But then I hope we're not going to have another adjournment.
PN41
THE COMMISSIONER: We might.
PN42
MR MCARDLE: Very well, if the material is - we've got original documents so I wonder if my friend could have her instructing solicitor and client just look at it here, and we'll provide copies that are required. We got this I think - - -
PN43
THE COMMISSIONER: Late yesterday afternoon.
PN44
MR MCARDLE: Yes, after five. But we have produced material.
PN45
THE COMMISSIONER: Well, can you produce the material?
PN46
MR MCARDLE: I produce the material.
PN47
MS HOWELLS: I thank my friend.
PN48
THE COMMISSIONER: Now, Mr McArdle, you might help me as to who is the applicant. The original notification did say Dempsey Australia Pty Ltd.
PN49
MR MCARDLE: Well, Dempsey Australia Pty Ltd conduct the marine yard at Botany. Dempsey Australia Pty Ltd is a related body corporate of Construction Diving Services Pty Ltd, which is the employing entity if you like, the service company of the employees concerned. The directors of the two companies don't 100 per cent overlap. They have substantially the same number of directors. They fit every criteria of a related body corporate. But my friend raises a good point, which is quite a valid one, which is answered in our draft order that we've prepared. We seek an order on behalf of the party to the agreement, that is Construction Diving Services Pty Ltd, that will be the order that we seek.
PN50
THE COMMISSIONER: All right.
PN51
MR MCARDLE: An affected organisation is Dempsey Australia Pty Ltd because they're the tenant of the yard that is currently being picketed, but the employees of the company that's being picketed is Construction Diving Services Pty Ltd. I hope that clarifies that. I forgot what the second one was.
PN52
THE COMMISSIONER: That was it for you.
PN53
MR MCARDLE: That's it, very well.
PN54
THE COMMISSIONER: Mr Coleman?
PN55
MR COLEMAN: Commissioner, I'm not sure whether you have on the Bench a copy of the Building and Construction Industry Improvement Act. The provision I wish to refer to is fairly brief and perhaps I could read it?
PN56
THE COMMISSIONER: Yes, please.
PN57
MR COLEMAN: It's section 72 that in my submission quite clearly gives the ABC Commissioner a right to intervene, and it's in these terms:
PN58
The ABC Commissioner may, by giving written notice to the industrial registrar, intervene in a matter before the AIRC that arises under the Workplace Relations Act and involves (a) ability to industry participant or (b) ability to work.
PN59
The technical requirements of notice has been provided. It's been queried by the union as to which building industry participant is considered to be relevant. It's disjunctive. It's ability of industry participant or building work, but in my submission both are satisfied. There are definitions of the Act as to what constitutes ability to work, that's in section 5. It's a fairly length definition, but could I put it this way, that it's extraordinary broad and, in my submission, on any view of the work being performed it fits within that definition. If necessary in due course that can be debated, the subject of evidence. But in my submission on my understanding of the factual position, particularly having had a brief look at the affidavit of Brian Fitzsimons which will be, I understand, read in due course, there would seem to be no doubt that ability to work is involved.
PN60
In relation to building industry participant again there's a definition in section 4 of the Building and Construction Industry Improvement Act 2005 which defines what is meant by building industry participant and includes or means any of the following. Ability of employee, ability of employer, ability of contractor, and it goes on. It's again very broad. In my submission it's not even arguable that there's no right of intervention on that basis.
PN61
THE COMMISSIONER: Yes, thank you, Mr Coleman. Ms Howells?
PN62
MS HOWELLS: Well, Commissioner, my friend has indicated that he will be relying on evidence. There's no reference to evidence as to the nature of the work. We're happy to leave the matter and if necessary at an appropriate time deal with that argument.
PN63
THE COMMISSIONER: Yes.
PN64
MS HOWELLS: There was another matter I wished to raise if it please the Commission, and that is in respect of the orders which have been provided. The order 3.1(d) is binding on employees of CDS the constitutional corporation who are eligible to be members of the union. I am instructed on behalf of the union, I am not instructed on behalf of any individual employees, be they union members or not. I am unaware as to whether those employees have been notified of these proceedings, Commissioner.
PN65
THE COMMISSIONER: Yes. Mr McArdle, do you know whether these people are all members of the union or are there individuals that may not be? Because if there are individuals that are not members of the union you seek to have them bound by this order then I'm obligated to make sure they get a copy of the order so they can defend it.
PN66
MR MCARDLE: It has been represented to us throughout, in fact that's the issue at hand, that the union represents all 14 persons. I note Mr Harmes and Mr Loring are present today. And who else is present?
PN67
THE COMMISSIONER: Yes, it's only us. Some people are here.
PN68
MR MCARDLE: And Damien Tucker is present, so it's a variable - it's a matter of notoriety amongst all of the workforce that this matter is on. They were served yesterday, if I could call your attention to the service information that we provided when we faxed the material to the Commission.
PN69
THE COMMISSIONER: Yes.
PN70
MR MCARDLE: The back page before we get to the annexures, and it's to the union, fax number 2614548, Mr Smith, fax number 2614548, each of the employees fax number of their stated representative 92614548. It has been, since we heard about this matter, been represented to us that the union acts for all of the employees. Now, our obligation under 73 is to - rule 73, is to serve as soon as practicable the material. Now, practicable means possible, means realistically achievable. If it is an expectation of this Commission that we visited the homes of all 14 people and waited for them to arrive home or something like that, that would take at least seven days to ensure service.
PN71
Service was affected quite successfully. We've got four of them here. Service was affected, and the rest I understand, most of the rest are on the picket line at the moment so everyone knows about it. No one is suggesting otherwise and be taken seriously. So service has been affected to the extent of all practicability, and successfully I might note.
PN72
THE COMMISSIONER: Yes. Good, thank you, Mr McArdle. Anything else, Ms Howells?
PN73
MS HOWELLS: Commissioner, Mr McArdle hasn't really addressed the point I was making, which is actually the scope of the order sought, is employees of CDS who are eligible to be members of the union. I am not representing those individuals.
PN74
THE COMMISSIONER: Yes. If I made the order it would only be those who are members of the union, yes. Carry on, Mr McArdle. Call your witness.
MR MCARDLE: Yes, I call Mr Brian Fitzsimons. Mr Fitzsimons will have a copy of his affidavit with him, and I will tender a copy, I'll tender the original to the Bench.
<BRIAN FITZSIMONS, SWORN [11.23AM]
PN76
MR MCARDLE: My friend points out that the people she doesn't represent are going to be called by her as witnesses, so could I suggest that they wait in the - - -
PN77
THE COMMISSIONER: Are you going to call anyone that's in the courtroom?
PN78
MS HOWELLS: Yes, Commissioner.
THE COMMISSIONER: Yes, anyone that's going to be called as witnesses will wait outside please.
<EXAMINATION-IN-CHIEF BY MR MCARDLE [11.23AM]
PN80
MR MCARDLE: Your name is Brian Fitzsimons?---Yes.
PN81
Your place of business is the Sydney Desalination Marine Yard, Fishburn Road, Botany?---Yes.
PN82
You've made an affidavit in these proceedings?---Yes.
PN83
Do you have a copy of it with you?---Yes.
PN84
I tender the original. I note that all at the bar table have received a copy. I think there's been a safety incident, Commissioner.
PN85
THE COMMISSIONER: Right. We'll just get the mic adjusted before we go on, Mr McArdle. Yes, Mr McArdle?
PN86
MR MCARDLE: My friend has some objections.
PN87
THE COMMISSIONER: Right.
PN88
MS HOWELLS: Just one, Commissioner. Paragraph (a) "On or about
5 December 2007 I understand that Nicole Dempsey" et cetera, and ending with the words "information sheet." I should
indicate to the Commission there is an issue about the procedure that was followed in respect of the approval of the agreement, and
there is an issue about whether the agreement was validly approved, and for that reason we do object to hearsay evidence on an issue
that's really of some importance to that today.
PN89
THE COMMISSIONER: Yes.
**** BRIAN FITZSIMONS XN MR MCARDLE
PN90
MR MCARDLE: I can clear that up by asking him how he asserts that, Commissioner.
PN91
THE COMMISSIONER: Yes, Ms Howells?
PN92
MS HOWELLS: Yes, Commissioner, that would have a prior objection which is, it's still going to be in the nature of hearsay evidence.
PN93
THE COMMISSIONER: Yes, it is hearsay evidence, Mr McArdle. I'm going to allow it in. I will note that it is hearsay evidence, and you can cross-examine the witness on it.
PN94
MR MCARDLE: Have a look at paragraph 8, Mr Fitzsimons.
PN95
THE COMMISSIONER: I'd better mark the document first.
PN96
MR MCARDLE: Yes. I haven't had him say that this is his evidence, I better do that.
PN97
THE COMMISSIONER: Yes.
PN98
MR MCARDLE: Mr Fitzsimons, is that affidavit your evidence in these proceedings?---Yes.
PN99
Do you swear it is true in every particular?---Yes.
I ask that be marked.
EXHIBIT #MC1 AFFIDAVIT OF BRIAN FITZSIMONS
PN101
MR MCARDLE: Now, Mr Fitzsimons, have a look at paragraph 8, and you've just heard the objection from Ms Howells to the second sentence?---Yes.
PN102
The second sentence says:
PN103
On or about 5 December 2007 I understand that Nicole Dempsey, site administrator of CDS gave each of those five employees a copy of the draft agreement and an information sheet.
PN104
Were you present for that?---Probably not. I can't remember that part. The agreements were printed out and made up, that agreement and information package, and then Nicole distributed it to the guys.
**** BRIAN FITZSIMONS XN MR MCARDLE
PN105
So you saw the information packages did you?---Yes.
PN106
And you saw the draft agreement and the information sheet?---Yes.
PN107
And you saw those packages?---Yes.
PN108
And you gave them to Nicole?---No, Nicole had prepared them.
PN109
Prepared them?---Yes.
PN110
And you saw them though?---Yes.
PN111
And did you see anyone receiving them?---No.
PN112
Did you discuss any - after that date did anyone discuss any of the issues with you?---Yes.
PN113
I mean, and when I say anyone I mean any of the divers who'd been given them?
---Yes.
PN114
And did any of them show you the information sheet and their copy of the agreement in that time?---In terms of the agreement there was a discussion of a living away from home allowance. The agreement that we issued they showed living away from home allowance. The divers prior to that section of the agreement had been paid pretty much as per the rates in the agreement, although the agreement hadn't been issued.
PN115
And as described in the document the divers informed you that there had been some sort of consideration among themselves and the document had been approved?---Well, just prior to that - - -
PN116
No, after that?---Yes.
PN117
After that date the divers told you, you've sworn to that?---Yes.
PN118
No further questions.
PN119
THE COMMISSIONER: Ms Howells?
**** BRIAN FITZSIMONS XN MR MCARDLE
PN120
MS HOWELLS: Thank you.
PN121
THE COMMISSIONER: I'm sorry, Ms Howells. Mr Coleman, did you want to ask any questions?
MR COLEMAN: Just one, your Honour, if I may.
<CROSS-EXAMINATION BY MR COLEMAN [11.29AM]
PN123
MR COLEMAN: Would you turn to paragraph 14 of your affidavit, that's over on page 4?---Yes.
PN124
And paragraph 15 on the following page. You there note that you were met when you arrived by 10 to 12 divers "you employed by CDS." On that day and the following day, 4 March, were those divers expected to be at work?---Yes.
PN125
Yes, thank you.
MR MCARDLE: I need to clarify the record too, Commissioner, just before my friend starts, just on one point.
<FURTHER EXAMINATION BY MR MCARDLE [11.30AM]
PN127
THE COMMISSIONER: Yes.
PN128
MR MCARDLE: In your affidavit, Mr Fitzsimons, you tell us that the document that was lodged was signed on behalf of the divers by Mr Beresford, is that correct?---Wayne Edwards.
PN129
Who was it?---Edwards.
PN130
Did you instruct my colleague Ms McEvoy to obtain a copy of the document that was actually lodged at the Workplace Authority overnight?---Yes.
PN131
Could I show the witness a document?
PN132
THE COMMISSIONER: Yes. Show it to Ms Howells first.
PN133
MR MCARDLE: I'll just describe what it is, Commissioner. It's the lodged document that has been received from the Workplace Authority.
**** BRIAN FITZSIMONS FXN MR MCARDLE
PN134
THE COMMISSIONER: Right. Give it to my associate.
PN135
MR MCARDLE: Have you seen that document before, Mr Fitzsimons?---Yes.
PN136
And if you turn to the signature page, a signature is there on behalf of the divers?
---Yes.
PN137
Whose signature is that?---That's Scotty's, Scott Bedford.
PN138
And that is the person you depose as the person who is - and so that is the document that was lodged is it?---Yes.
PN139
I tender that.
PN140
THE COMMISSIONER: Right. We have the one from the witness box. Any objections, Ms Howells?
MS HOWELLS: No, no objections, Commissioner.
EXHIBIT #MC2 SIGNED AGREEMENT
THE COMMISSIONER: Yes, Ms Howells?
<CROSS-EXAMINATION BY MS HOWELLS [11.32AM]
PN143
MS HOWELLS: Mr Fitzsimons, you're employed by Dempsey?---Yes.
PN144
And what is your role in overview in relation to the divers who performed the diving work on this project?---The project manager for that part of the work.
PN145
And in a practical sense what contact does that involve you having with the divers?---Pretty much day to day.
PN146
Yes, in what role?---As project manager.
PN147
Yes. What do you do as far as the divers are concerned, what contact do you have with them?---Normally just how are you going, greet them in the morning if I see them in the morning, see them in the afternoon. They pretty much take their direct work instructions from the dive supervisor or the barge master.
PN148
The dive supervisor and the barge master?---Well, yes, superintendent. But they are pretty much the guys who have the day to day control.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN149
And on your understanding who employs the dive supervisor?---The instructor of diving.
PN150
And who employs the barge master?---Dempsey Australia.
PN151
I'm sorry?---Dempsey Australia.
PN152
Now, were you involved in the engagement of the divers?---Not actually, no.
PN153
Who was involved in recruiting them?---At the very start?
PN154
Yes?---Yes, Barry, Barry Dempsey.
PN155
Are you aware as to whether they were given any written offers of employment or anything of that nature?---No.
PN156
As far as you're aware all offers and acceptance was verbal, is that right?---This is prior to the agreement?
PN157
Yes, it's prior to the agreement, when they were actually recruited as employees?
---Yes. I honestly couldn't - yes, just when I got to the site on 11 November the five guys were there, the divers.
PN158
And do you know - I'll withdraw that. And Ms Dempsey, who you've mentioned in connection with the agreement, is she an employee of
Dempsey Australia?
---Yes.
PN159
I see. Now, I just want to show you a copy of a pay slip. I'll just also hand you, Mr Fitzsimons, a copy of a company ASIC company extract in relation to Construction Diving Services Pty Ltd. I just want you to first have a look at the Construction Diving Services Pty Ltd ASIC company extract, the seven page document. You see there there's an ACN number?---Yes.
PN160
And the company apparently doesn't have an ABN number?---I don't know.
PN161
Well, if I can just ask you to have a look at the pay slip. First of all you see it appears to be a pay slip for a Mr Damien Tucker?---Yes.
PN162
And to your knowledge at the time of this document he was a diver on the project?---Yes.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN163
And you accept that this is his pay slip?---Yes.
PN164
Now, I just want to draw your attention to the ABN number there?---Yes.
PN165
To shortcut the questions perhaps, do you accept that that ABN number relates to a different company to Construction Diving Services Pty Ltd?---I would have no idea.
PN166
I see. Do you know what company pays these workers?---I understand it's CDS, Construction Diving Services.
PN167
Do you accept that if the ABN number relates to a different company that might suggest that a different company pays these employees?---It may well be, yes.
PN168
Do you see that that's a printout from the Commonwealth Government's website concerning the trustee for the Dempsey Family Trust?---Yes.
PN169
Do you see that the ABN number cited on that is the same ABN number which appears on the pay slip?---Yes.
PN170
Do you have any understanding of why that would be the case, Mr Fitzsimons?
---None.
PN171
Who within the companies would be best placed to explain the minutiae of who the employing company is?---Probably Barry, Barry Dempsey.
PN172
I see. Now, with respect to the agreement which was filed in December that you've been shown a copy of, exhibit MC2, is this correct, that you had some discussions with some employees on 13 December about the agreement?---Yes. It was probably in between. I honestly can't remember the date. It was probably in between the 5th and the 13th.
PN173
I see?---Yes.
PN174
And that was about the issue of the living away from home allowance?---Yes.
PN175
And you had a further conversation with Glen Edwards which was on about 13 December?---Yes.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN176
Now, as to what happened before that, with regard to what was provided to the employees, you don't have any personal knowledge of that?---Other than the package that was discussed earlier.
PN177
But you didn't yourself see what they were given or when they were given it?---It was given on the 5th.
PN178
Were you there when it was given to them?---No.
PN179
No. So you're basing that on what someone has told you?---Yes, I'm basing that on asking me to call up the guys who got the agreements, yes.
PN180
Now, you have annexed to your affidavit a copy of the information sheet that was provided?---Yes.
PN181
Do you have a copy of that document?---Yes, it's the one that's get's written out from the workplace.
PN182
No. You see in paragraph (a) you say that you were told that Nicole Dempsey gave each of those five employees a copy of the draft agreement and an information sheet?---Yes.
PN183
Now, I'm just asking you, to your knowledge does the company or either company have a copy of the information sheet that was provided to employees?---Yes.
PN184
And you're aware, Mr Fitzsimons, that a notice to produce was served on your solicitor asking for documents relating to the approval process?---Yes.
PN185
And you accept that the documents, the information sheet which was provided to the employees would be a document which fell within that notice? Tell me if you want to see the notice?---No.
PN186
You accept that that document falls within the notice?---Yes.
PN187
And is there any reason why it hasn't been produced in that case?---I would have to say it's an oversight at the time, just at the time we got - trying to get stuff together.
PN188
Well, while we're on the subject I'll just read out to you paragraph 1 of the notice:
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN189
All documents referring to or evidencing the process followed by Construction Diving Services Pty Ltd for the purpose of meeting the requirements of section 340 of the Workplace Relations Act 1996 with respect to the agreement.
PN190
Now, correct me if I'm wrong, but I don't think you produced any documents falling into that category?---I may have one in that manila folder.
PN191
So there's some more documents?---No. I'm just - I mean, I may have one, yes, I don't know.
PN192
I see.
PN193
MR MCARDLE: Well, if it would help the witness could search for it.
PN194
THE COMMISSIONER: Can you give him the manila folder please, and we'll see?---I think that's it, that's the one there.
PN195
Can you take it? My associate is not here.
PN196
MR MCARDLE: My colleague Ms McEvoy has put a call into Ms Dempsey of the company who is bringing everything with her, so I would not object to my friend reopening cross-examination or something like that after we've got those documents. She's on her way in at the moment.
PN197
THE COMMISSIONER: Yes, okay. Ms Howells?
PN198
MS HOWELLS: That will be helpful, Commissioner, if we have the opportunity to look at the documents. We're just trying to look at this one.
PN199
THE COMMISSIONER: You might have a chance to look at it over, say the luncheon adjournment.
PN200
MS HOWELLS: Yes. And there are some - we can take some of the issues a little bit further in any event.
PN201
THE COMMISSIONER: Yes.
PN202
MS HOWELLS: Now, you've referred in paragraph (a) to a correction that had to be made to the draft agreement?---Yes.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN203
Did you make that correction or did someone else?---Yes, the office in Mackay made the correction.
PN204
And do you know when they did that?---It was before the 13th, yes.
PN205
In between the 5th and the 13th?---Yes.
PN206
Are you aware or do you say that the corrected agreement was then given to the employees?---Yes.
PN207
And who did that?---Nicole.
PN208
I see. And you say that because she told you?---Probably what we gave them was a revised - at the back of the agreement there's schedule 1, which has got the rates.
PN209
Right, okay?---What we actually found was that when the guys had signed it we found that the divers, their rate and the divers assistant were mixed up.
PN210
So you found that after they'd signed the document?---Yes.
PN211
Now, you've recorded in paragraph (a) what you say is a conversation, was a discussion that occurred between yourself and Mr Glen Edwards. Now, I take it Mr Edwards is no longer employed?---No. Glen's on - he's just on leave at the moment. He's got some family matters.
PN212
I see. Now, this is correct isn't it? At no stage were you told that Mr Edwards had authority to speak for the other divers?---No. This is what's happened in this thing is that we had the discussion with the living away from home allowance because that was an issue because some of the guys hadn't been paid it. When that got resolved we actually got that tidied up and everybody was then happy with the agreement because the agreement basically said if you live away from home you get that. We then signed it and then discovered the error with the divers rates, and then that was tidied up, and that's where we are.
PN213
Yes. So what I was putting to you, Mr Fitzsimons, is that no one on behalf of the employees communicated to you that Mr Edwards was authorised to speak on behalf of the other divers?---Mr Edwards did.
PN214
Mr Edwards did. And as far as Mr Edwards phoning the barge, you say you believe he spoke to Terrence Harmes. You don't know who
he was speaking to?
---No.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN215
And you don't know who else was present or participating in the discussion at the other end?---Yes. All the other guys were on the barge.
PN216
Yes. But you don't know who was within earshot or what they were doing?---No.
PN217
Now, Mr Edwards you say signed the agreement which was filed with the Workplace Authority on 13 December, is that right?---Well, no. I think we'll find that what was filed was Scotty's, that's the one that got lodged, because the one that Glen signed had the mix up with the rates.
PN218
I see. So the one that was lodged - and just tell me if you need to have a look at it - was signed by you?---Scotty. Yes, and Scott.
PN219
And Scott Bedford?---Correct.
PN220
I see. And no one suggests that Mr Bedford had authority to act on behalf of the other employees?---At that time all the employees had signed it individually because there was confusion as to whether, actually whether all the employees had to sign it or whether one could sign it on one's behalf. So all the guys signed the agreement individually as well.
PN221
Now, have you retained a copy of the version of the agreement that was signed by Mr Edwards?---Yes, I believe there could be one on site, yes. I haven't seen it for a while but I believe there was.
PN222
And again you'd accept that that document would fall within the terms of the notice to produce? Do you know what date Mr Edwards
signed that document?
---That's just as I said to you, on or about.
PN223
On about 13 December?---Yes, on or about the 13th, yes.
PN224
But the one that you filed signed by Scott Bedford also appears to have been signed on the 13th?---Yes.
PN225
So that all occurred on the same day?---It possibly did, yes.
PN226
So Mr Edwards signed an agreement with the error in it and subsequently at some point, possibly on the same day, Mr Bedford signed his version?---It may well have been, yes, Glen maybe signed it the day before ..... yes.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN227
Now, in respect of the other employees the four other employees who you've named in paragraph 10, you say that they signed individually, and you've annexed it to BF2 - BF3 I'm sorry. I'll draw your attention to page 48. It just connects the - the signatures of Mr Edwards and Mr Loring?---Yes.
PN228
And I see that Mr Loring's is dated 13 December?---Yes.
PN229
And Mr Edwards's is dated 10 December?---Yes.
PN230
Now, do you have copies of the agreements as signed by the other three employees?---Yes.
PN231
And would you be able to produce those so we can have a look at them over the lunch break?---Yes.
PN232
Is there any reason why you didn't attach the signatures of the other two employees?---Not that I can think of.
PN233
I see. Now, these are individually signed agreements. Were they the agreements before the diving rates for the two classifications were changed or after?---After.
PN234
Now, if I can just ask you to have a look at BF2, which is the declaration received from the Workplace Authority. Before I ask you that perhaps, who actually lodged the agreements?---It was posted.
PN235
Was that Ms Dempsey or yourself, or who was responsible for that?---Nicole posted it.
PN236
Now, you submitted a declaration to the Workplace Authority along with the agreement?---Yes.
PN237
And who was responsible for filling in the declaration?---I did.
PN238
You did. And again, did you retain a copy of that document?---Actually, no.
PN239
I see. Now, just having a look at the receipt you'll see that the declaration was received from the trustee for the Dempsey Family Trust?---Sorry, which page is that?
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN240
This is page 28?---Yes.
PN241
Now, why did you lodge it on behalf of the - why did you fill in the declaration on behalf of the trustee for the Dempsey Family Trust?---We didn't. We filled it in on behalf of Construction Diving Services. The Workplace Authority came back with - actually said this is how the Workplace Authority's receipted it back to us.
PN242
Why would they get the idea? Do you have any idea why they would have done that? What was in the documentation that would have given them that?---It was Construction Diving Services and an ABN number.
PN243
All right. Well, perhaps we'll have a look at the declaration. I'm sorry, that was the document you haven't retained?---As far as I know. But in saying that, the Workplace Authority may well have it.
PN244
I would hope so, yes?---Yes.
PN245
So you've got no idea why the workplace authority would say that they received a declaration from the trustee for the Dempsey Family Trust?---No, when we actually phoned, we phoned in January chasing it up and the Workplace Authority told us they were reviewing the EBA numbers.
PN246
And what did you understand that to be reference?---They actually told us they were checking to see the ABN number related to Construction Diving Services.
PN247
Would that suggest to you that the ABN forwarded to them was the ABN number for the Dempsey Family Trust?---No, when we got this back I just assumed that it's the Construction Diving Services.
PN248
Mr Fitzsimons, who is responsible for ensuring the proper standards for occupational health and safety maintains in regards to the
diving operations?
---Yes, I would.
PN249
You would be?--- ..... manage it.
PN250
I see. And do you regard yourself as bound to comply with the Occupational Health and Safety Act 2000 of New South Wales?---Yes.
PN251
Are you familiar with the requirements of that Act?---Not verbatim, no.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN252
Sorry?---Not verbatim, no.
PN253
I'm sorry?---Not word for word, no.
PN254
Not verbatim?---No.
PN255
How do you ensure in that case that the obligations which you have in that regard are fulfilled?---Just day to day management really.
PN256
Have you followed any procedure to identify hazards which may arise in the course of diving operations?---Yes, we've developed safe work method statements for the activities - for the work activities.
PN257
Does that involve a specific stat to identify the hazards which might arise?---Yes.
PN258
And what documentation of that process would be available?---The safe work method statements.
PN259
So there's no separate documentation that you're aware that demonstrates identification of hazards specifically?---No, not at the moment, no.
PN260
What do the safe work method statements in overview consist of?---There is a step by step procedure of the activity or however the work activity will be carried out.
PN261
Apart from those particular documents are there any other documents to your knowledge which identify how ..... or anything of that nature?---Yes, we have pre start meetings and toolbox meetings which they basically start the day and a toolbox meeting every week where issues are discussed or issues are raised if there's a concern.
PN262
Now, who from management attends those meetings?---Noel Jamieson.
PN263
Sorry?---Noel Jamieson. Noel Jamieson.
PN264
And what's his position?---He's superintendent.
PN265
Superintendent of?---For our works. Also John Holland do a - John Holland also hold a toolbox talk, toolbox meeting. They often attend or they will hold their own.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN266
And do the divers to your knowledge attend the John Holland meetings?---Yes. Actually I think you'll probably find John Holland attend ours.
PN267
I see?---Yes.
PN268
Now again, just leaving aside for the moment the minutes of those toolbox meetings and site meetings. As far as the company is concerned the only documents you have which demonstrate your compliance with the Occupational Health and Safety Legislation is the safe work method statement?---Yes, we do - we do plant hazard assessments. Yes, we do daily plant checks, daily equipment checks.
PN269
Now, do you have a - well, first of all with respect to the safe work method statements, are those generally signed by employees who are affected by them so they know what their obligations are?---Yes.
PN270
Do you have a safe work method statement with respect to evacuation of divers who are injured from the barges?---I'd have to check on that. We did do a training drill and evacuation procedure I think on about 22 January.
PN271
Yes. And that was conducted in the bay, wasn't it?---Yes.
PN272
Not out where the barges actually operate?---That's correct.
PN273
Now, the current situation with respect to evacuation of injured employees is that - I'll withdraw that. I'll go back a step. There are two barges operative at the moment?---Yes.
PN274
And one of those barges has a device which is known as a HIAB, is that right?
---HIAB.
PN275
Could you just spell that for me, please?---H-I-A-B.
PN276
Now, is that right, that only one of the barges has an operative HIAB?---It's possible that the other one is operational as we speak.
PN277
It's possible that that's something that's been fixed up very recently in the last day, is that right?---Yes, the HIAB on the other barge has been on there. It's got to be plumbed in and fitted in.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN278
Now, as far as getting an injured diver out of the water, on one barge, leaving aside anything which might have happened in the last day, you had one barge which had a HIAB that was operative and one that had no device at all, is that right?---Yes.
PN279
And in the case of a diver who's injured when the HIAB is not operative, in the case of the barge without an operative HIAB there was no device for getting that diver out of the water?---Yes, other than the pure number on the barge.
PN280
And you would accept that that situation gives rise to an unacceptable risk to divers who may be injured in the water?---No, it's not an unacceptable risk. I mean we can actually retrieve, we can get the diver out. There's 12 men actually on the barge at any one time.
PN281
Yes?---The evacuation procedure that we did on the 22nd, the casualty was the manpower that .....
PN282
And that exercise, as you said, was conducted in the bay?---Correct.
PN283
Where the water is calm?---Mm.
PN284
And out on the barge you could potentially be facing what, a two metre swell, at least?---It wouldn't be any more, no.
PN285
So you could be facing a two metre swell?---Possible.
PN286
And in that circumstance you would accept that the industry standard is to have a device for uplifting injured divers?
PN287
THE COMMISSIONER: Was that yes?---I'd have to check it out, Commissioner.
PN288
MS HOWELLS: Mr Fitzsimons, you know very well that that's the case, don't you?---Well, actually we have fitted two davits as we speak, yes. We've fitted two davits to the barges, yes, but if we can't get the divers out manually.
PN289
Now, are you aware as to whether manual extraction of injured divers from the water is considered acceptable practice or not as far as health and safety standards are concerned?---I couldn't quote a clause, no.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN290
Well, you're the person who's responsible for health and safety?---Yes.
PN291
That's not something you've considered?---The current method we've considered and the conditions we're working is we are very happy with that, what we can work with, yes.
PN292
Well, leaving aside the HIAB which at least one of them was not working, as far as manual removal of injured divers from the water, did you take any steps to satisfy yourself that that was a satisfactory procedure?---Other than the success of the evacuation procedure on the 22nd, no.
PN293
Now, are you aware, Mr Fitzsimons, as to whether there are any occupational health and safety regulations specifically dealing with the question of what devices are acceptable for moving people? Are you aware as to whether the occupational health and safety legislation deals with the particular question of what devices are suitable or acceptable for moving people?---I haven't read it.
PN294
I'm sorry?---I don't think I've read it.
PN295
I see. So you wouldn't know if there's any regulation governing how injured people should be moved?---There will be a regulation.
PN296
But you're not aware of what it is?---I couldn't - - -
PN297
You haven't looked?---No.
PN298
Now, assuming the person who is injured on a dive can be retrieved back onto the barge, the current situation is that if that person needs to - I withdraw that. As far as the barge itself is concerned, how long does it normally take a barge to get into and out of its land base?---Approximately about an hour and a half.
PN299
Okay?---Yes.
PN300
So in the case of an injured worker you obviously need a means of transferring them from the barge back to land?---Yes.
PN301
Yes. And the current situation is that you would have to rely on a tug to take them back, is that right?---Yes.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN302
And that the normal practice on these operations is that one tug takes the barge out?---Yes.
PN303
And remains though with the barge?---Yes.
PN304
And then takes it back at the end of the - - - ?---Yes.
PN305
And part of the function of that tug is to be available in case there are any difficulties with lines snapping or anything of that nature?---Yes, yes.
PN306
So the first difficulty with relying on a tug, Mr Fitzsimons is that if the tug goes to take someone who's injured back to land there's no longer that safety mechanism in terms of anything going wrong on the barge?---Yes.
PN307
And you'd accept that that's not a satisfactory situation?---Yes.
PN308
And that's a situation which has been in place since this operation with the barge has commenced?---No.
PN309
It's certainly the situation now?---Yes, there's the two tugs go out and there's a smaller survey vessel goes as well.
PN310
As of the time that these employees ceased work, Mr Fitzsimons, the situation was that ordinarily a barge would be accompanied by one tug?---Yes.
PN311
And that tug would be required to transport an injured person back to land?
---There is a small survey vessel available.
PN312
Now, there is no written procedure which directs the employees as to how they should conduct themselves if there is an injured worker?---I believe there is. There is, yes.
PN313
And would you be able to produce that document today?
PN314
MR MCARDLE: The witness nodded his head I think.
PN315
THE WITNESS: Yes, sorry.
PN316
THE COMMISSIONER: Can you answer the questions so we have it on transcript, thank you?---Yes.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN317
MS HOWELLS: To your recollection does that document specify what vehicles should be for what conveyance should be used to transfer an injured worker from a barge back to land?---I believe it possibly refers to dive boat or a crew boat.
PN318
Are you saying that a small survey vessel that you've referred to would fall into that category?---It may struggle depending on the injury, yes.
PN319
Can you explain what you mean by that, please?---If you had to, for example, if you had to move the transportable ..... onto the - it wouldn't fit.
PN320
Onto the barge you mean?---Onto the small boat.
PN321
And what would the consequences of that be?---I don't know what the consequences would be but the situation that we have at the moment is a situation where we have two barges supplied by the client, had two tugs supplied by the client and a small survey boat supplied by the client.
PN322
THE COMMISSIONER: Does the client have its own divers down? I thought I heard a mention of John Holland's earlier?---Sorry, Commissioner?
PN323
Are your divers the only divers on site?---Yes.
PN324
Thank you.
PN325
MS HOWELLS: Now, the situation on your evidence would then be that an injured worker would have to be transferred from the barge to whatever under the tug or what you say is the small survey boats which would then transfer them back to land?---Yes.
PN326
And correct me if I'm wrong, but that's basically a question of getting the two boats close enough so that the person can be physically moved from one to another across the - - - ?---Yes, yes.
PN327
And you would accept that that can be an extremely difficult and potentially dangerous operation when there's a significant swell?---Potential.
PN328
And you would accept also, Mr Fitzsimons that the standard industry practice in this regard is to have an inflatable boat of some sort on board the barge?---No, I don't think it's standard, no.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN329
Is it the current intention of the company to obtain such an inflatable conveyance to be stored on the barge for emergencies?---It's the current intention of the client, yes.
PN330
When you say the client, who?---The joint John Holland Blue Water.
PN331
THE COMMISSIONER: Is it there yet?---It's been procured. It isn't physically on the site but it has been procured.
PN332
MS HOWELLS: Now, in terms of these issues which I've just been discussing with you, that is, getting a diver out of the water, transferring them to another boat and getting them back to land, those are issues, you would agree, that the divers themselves have raised on a number of occasions through to the toolbox meetings?---I don't believe we'll find that.
PN333
I see. And certainly they've been raised directly with you on a number of occasions by divers?---Yes, once or two, yes, not - yes.
PN334
And they've told you that they consider the existing practices to be unsafe and unsatisfactory?---They've got concerns with the current system, yes.
PN335
And your answer to that has been, well, we're going to fix it some time in the future by getting an inflatable vehicle. That's right, isn't it?---No, we've actually installed davits on the barges to actually help people out of the water.
PN336
This is the devices sometimes described as the HIAB?---No, the HIAB it's a hydraulic - a small hydraulic crane.
PN337
Isn't it the case, Mr Fitzsimons, that the divers themselves have represented to you on a number of occasions before they came to cease work that it would be appropriate to have a platform or cage to take the divers out of water?---No.
PN338
I see. So isn't that again what's regarded as safe industry practice to have such a device?---I don't believe so.
PN339
I see. And with regard to the davits, I take it you haven't taken any steps to ascertain whether they comply with any requirements of the occupational health and safety legislation as far as the movements of people?---We've checked the safe working load that's on them and we've checked what loads and radius we can work .....
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN340
Did you take any steps to see whether they complied with any relevant occupational health and safety legislation for the moving of people?---I haven't personally, no.
PN341
Did someone else to your knowledge?---Yes, possibly Noel has. I would check with Noel.
PN342
Possibly. When do you say the small survey boats became ..... Mr Fitzsimons?
---Early new year. At that time we had one barge operational and two tugs available.
PN343
And is it your evidence that the small survey vehicle or craft is always in the vicinity of the barge?---No, I'd have to say it's probably not there 100 per cent of the time, no.
PN344
What percentage of the time would you say it is?---Look, it's actually used by the ..... so the ..... goes it. If there's a lot of salvage to be done it is there fairly quickly - sorry, is there for a reasonably long time. If not he's back, he comes back because he can get back in about 15 minutes.
PN345
If it please the Commissioner, I can't take the cross-examination any further until I've had a look at the documents which are produced. I don't think I'll have a lot more for Mr Fitzsimons but I would like to look at the documents.
PN346
THE COMMISSIONER: All right. Well, Mr McArdle, I take it, and
Mr Coleman, you've got nothing more you want to put the witness in redirect until he's finished his evidence?
PN347
MR MCARDLE: No, we would want to do re-examination afterwards.
PN348
THE COMMISSIONER: Yes, thank you. The witness is excused. I'll remind you that you're still under oath and will be recalled when the other documents are here.
PN349
MR MCARDLE: Might I also say for the record I don't think the witness would be aware he's not allowed to discuss the case with anyone.
PN350
THE COMMISSIONER: Yes. I thought you would have brief, Mr McArdle.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN351
MR MCARDLE: No, no. I didn't realise he would be under cross-examination for the meal break.
THE COMMISSIONER: Yes, thank you. You're not to discuss it with anyone?
---Thank you.
<THE WITNESS WITHDREW [12.25PM]
PN353
Okay. Do you know when the documents will be here?
PN354
MR MCARDLE: Ms Dempsey was leaving Botany but she'd had to get through a picket line so it might take a while.
PN355
THE COMMISSIONER: As long as there's nothing - - -
PN356
MS HOWELLS: Mr McArdle is being mischievous. There is no obstruction.
PN357
MR MCARDLE: I'm sorry. I was being light hearted and I - - -
PN358
THE COMMISSIONER: It's been a very heavy morning, Mr McArdle, I appreciate a bit of humour. All right. Well, we might take an early lunch adjournment and adjourn now and resume at 2 o'clock.
<LUNCHEON ADJOURNMENT [12.26PM]
<RESUMED [2.07PM]
PN359
THE COMMISSIONER: Ms Howells, do you want to question the witness further?
PN360
MS HOWELLS: Yes, Commissioner.
THE COMMISSIONER: Would you come back to the witness box please.
<BRIAN FITZSIMONS, RECALLED ON FORMER OATH [2.07PM]
PN362
MR MCARDLE: Commissioner, can I bring something up with the witness not in the room?
PN363
THE COMMISSIONER: Yes.
MR MCARDLE: I'll just ask you to wait outside the courtroom.
<THE WITNESS WITHDREW [2.07PM]
PN365
MR MCARDLE: I note that the witness has left. Commissioner, I apprehend that there will be a submission that this is not unprotected industrial action because there is no agreement in place because there's been some error made in its drafting or lodgement or something. If that is the case then my submission is a very strong one, which is this is not the forum to advance such a contention and, secondly, even if paperwork was done incorrectly, which is by no means conceded, then section 347(2) applies, that is, a workplace agreement comes into operation even if the requirements in Division 3 and 4 and section 342 have not been met in relation to the agreement.
PN366
We rely on the existence of the agreement documents, we rely on the receipt from the Workplace Authority as establishing for the satisfaction of the criteria to be considered by this tribunal as proof of the existence of the agreements. I believe it's superfluous and not helpful and beyond jurisdiction for evidence to - this is the basis of it - for evidence to be led as to the paperwork evidence and the like. Now, that's my submission.
PN367
THE COMMISSIONER: Yes, Mr McArdle. Ms Howells?
PN368
MS HOWELLS: If it please the Commission, our submission is not as to whether any action is protected or not. As foreshadowed on Monday, we said that this was action which didn't fall within the definition of industrial action in section 420(1)(g). However, the respondents - sorry, the company has drafted an application which relies heavily on not only the existence of the agreements but the fact that these employees are bound by it, as indeed it couches these orders by reference in point 2 to the proposition that the order applies to work and employment regulated by the Construction Diving Services et cetera agreements. Now, the purported agreements - does the Commission have a copy of the - - -
PN369
THE COMMISSIONER: The draft order?
PN370
MS HOWELLS: And the agreement which is MC2.
PN371
THE COMMISSIONER: Is that attached to which document?
PN372
MS HOWELLS: That was tendered. It's also attached, or at least forms of it are attached to Mr Fitzsimons's affidavit and the application separately.
PN373
THE COMMISSIONER: Yes, I have it.
PN374
MS HOWELLS: The agreement applies to all employees of Construction Diving Services Pty Ltd engaged in the classifications set out in schedule 1. Now, the points which the MUA takes about the agreements are in two groups. The first thing is the respondents haven't demonstrated that these employees are in fact employed by the company named in the agreement, and we rely on the payslips which identify the payer as being a trust company as demonstrated, that these employees are in fact not employed by the entity that is the applicant in these proceedings and which is named in the agreement.
PN375
The second basis on which we say the agreement has no effect on these employees is that we do say squarely that it was not validly approved., and the basis on which we say that are not simply a matter of paperwork. If it please the Commission.
PN376
THE COMMISSIONER: I'm not sure that I can determine that, Ms Howells.
PN377
MS HOWELLS: Well, Commissioner, in circumstances where the respondent invites you to act on the basis that the agreement does apply to these employees it would be our submission that for the purpose of determining the orders the Commission would be entitled to determine that or at least determine whether or not the company has established its case, because the very orders which the company seeks to have the Commission make articulates the conclusion that the employees are and the work is covered by this particular agreement. We take issue with that, Commissioner.
PN378
We say the requirements of the Act in terms of approval processes and essential steps in the documentation, not mere formalities, have not been complied with. And Mr Fitzsimons, with respect to him, was unable to advance those issues. But we will be calling some further evidence from our witnesses as to the purported approval process.
PN379
THE COMMISSIONER: Yes. Well, at the conclusion anyhow I suppose it's safe to say that fortunate for the parties that whatever I decide to do either side will have the right to appeal.
PN380
MS HOWELLS: Yes, Commissioner.
PN381
THE COMMISSIONER: Yes, good, thank you, Ms Howells. Will you call the witness back in please?
PN382
MR MCARDLE: Sir, so we do proceed then with a consideration in this forum as to whether or not the agreement is valid notwithstanding the existence of the receipt from the Workplace Authority?
PN383
THE COMMISSIONER: I will hear the parties' evidence. What I determine, Mr McArdle, will be for me at the end of the matter.
PN384
MR MCARDLE: Certainly.
PN385
THE COMMISSIONER: If Ms Howells wants to go down that road then I'm obligated I believe to hear it.
PN386
MR MCARDLE: Certainly, Commissioner. If the Commission pleases.
PN387
THE COMMISSIONER: Yes, thank you.
PN388
MR MCARDLE: Before the witness comes back in can we discuss timetabling, Commissioner?
PN389
THE COMMISSIONER: Yes.
PN390
MR MCARDLE: We've cleared the slate and we're prepared to keep going for the rest of the day until finished.
PN391
THE COMMISSIONER: Well, I'm not prepared to go beyond 4 o'clock.
PN392
MR MCARDLE: Very well.
PN393
THE COMMISSIONER: Thank you. I'll resume at 10 o'clock in the morning.
PN394
MR MCARDLE: In that case can I make a phone call for one minute, Commissioner?
PN395
THE COMMISSIONER: Yes, we'll adjourn for one minute while Mr McArdle makes his phone call.
<SHORT ADJOURNMENT [2.15PM]
<RESUMED [2.16PM]
THE COMMISSIONER: Ms Howells?
<BRIAN FITZSIMONS, ON FORMER OATH [2.16PM]
<CROSS-EXAMINATION BY MS HOWELLS, CONTINUING
PN397
MS HOWELLS: Mr Fitzsimons, just in terms of the documents which we discussed before lunch, I think - correct me if I'm wrong - that you said that to your knowledge a copy of the declaration submitted to the Workplace Authority was not obtained by the company, is that right?---Yes, that was my understanding.
PN398
And as far as the written safety procedure concerning evacuation, did you have an opportunity to see if such a document existed?---I did not, I didn't have that opportunity.
PN399
Now, do you remember me asking you a couple of questions about whether the issue of evacuation procedures were raised at any of the meetings? I just have the file of the original documents here, if I might approach the witness?
PN400
THE COMMISSIONER: Yes, please.
PN401
MS HOWELLS: Mr Fitzsimons, I'm just directing your attention to what appears to be a record of meeting headed, Pre Start Meeting Record, and it's a document with a blue water insignia on the right hand corner?---Yes.
PN402
Does that mean that it's a meeting of - I withdraw that. Who attends these meetings to the best of your understanding?---The employees.
PN403
Of which companies?---Of Construction Diving Services.
PN404
You see that it's got some handwriting about matters discussed?---Yes.
PN405
And who records that writing?---Noel, Noel Jamieson.
PN406
That has a list of attendees?---Yes.
PN407
And do these records come to you routinely?---Yes.
PN408
And you read them?---Yes.
PN409
And who decides what action should be taken arising from them?---Through myself, Noel. That one there is - if you just turn back the page. Yes, that's ..... one, yes. For some reason the divers aren't on there. Pretty much at that time and at that date, 19 January, there was pretty much we had one crew on the Aquila and another crew on the LC20.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN410
Now just taking you to the record of meeting of 7 February 2008?---Yes.
PN411
And on that occasion you'll see some of the divers were present?---Yes.
PN412
And I just want to draw your attention to the handwriting under the heading, General Issues. It says, "Evacuation procedures for barges, stretchers and straps. We need answers"?---Yes.
PN413
Do you see that?---Yes.
PN414
And there's no action by or identified?---Yes.
PN415
Do you remember seeing them on about the date, 7 February?---Yes. Not on that date, no, but they know to discuss the point that was raised.
PN416
And the point that was raised was the issues I was asking you about earlier today, which is about the procedure for evacuating injured workers?---Yes. What we asked there, on the site there was an emergency response plant which is details of numbers, contacts et cetera. We had to bring the injured, et cetera, et cetera, so those details were put on the barges in that regard.
PN417
This is something that was raised by some of the employees, that's right, isn't it?
---Yes.
PN418
But did you actually take any steps at the time to find out what specifically they were saying they needed answers about?---Yes. At that time, no. I discussed that with Noel and we went through because we wanted to see the response plan covered.
PN419
If I can just take you to the meeting dated 20 February, do you have that?---Yes.
PN420
And there's reference there to Zodiacs for barges?---Correct.
PN421
And a Zodiac is an inflatable boat?---Correct.
PN422
Which was aboard for use on tugs or other craft to transport injured workers?---It could be, yes. That was - sorry.
PN423
Again, there doesn't appear to be any action identified or date?---If that item then was then raised again on the 25th - at the tool box meeting of the 25th of the second and that item was flagged there and there's action dates here and I think ..... explained earlier, it already has been procured.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN424
When was the Zodiac - - - ?---I don't know. The client supplies the barges. So they provide the Zodiac.
PN425
So when did you first raise with the clients the need to get a Zodiac or some such conveyance for the purpose of removing injured workers?---Been discussing that with the client since early January.
PN426
And you were aware at the very least that the divers regarded this by February as an extremely urgent issue, that the fixing of the procedures for evacuating injured divers?---Yes.
PN427
If the Zodiac .....?---I didn't know what .....
PN428
When did you last check?---This morning actually.
PN429
At that stage they hadn't arrived?---I don't think it was there this morning.
PN430
You made some reference earlier to the survey boats being used for evacuation. It's true, isn't it, that the survey boat is not big
enough to hold a stretcher?
---Possibly could fit.
PN431
Possibly could fit?---Yes.
PN432
Have you yourself looked into the question of whether the survey boats could hold a stretcher?---I haven't physically gone and measured it, no.
PN433
So you don't know whether it could or not?---Just by looking at it it appears as if it could, yes.
PN434
Have you ever been out on a barge, on these two barges?---Yes.
PN435
Commissioner, I have no further questions for Mr Fitzsimons. I only wish to tender the documents which I've now showed him earlier which I should have probably tendered at the time, which is the case note of Mr Damien Tucker.
PN436
MR MCARDLE: No objection.
PN437
MS HOWELLS: The extract relating to the trustee for the Dempsey Family Trust and the ABN number for that organisation.
**** BRIAN FITZSIMONS XXN MS HOWELLS
PN438
MR MCARDLE: No objection.
PN439
MS HOWELLS: And the ASIC company extract for Construction Diving Services Pty Ltd.
PN440
MR MCARDLE: No objection.
PN441
THE COMMISSIONER: Yes, thank you.
PN442
MS HOWELLS: Do you have a copy, Commissioner? I think we gave them to the witness.
THE COMMISSIONER: I haven't got any. If you give them to my associate, she'll photocopy them for us. There's no objection to the tendering of these documents. I'll mark them as one, H1.
EXHIBIT #H1 BUNDLE OF THREE DOCUMENTS
PN444
MR MCARDLE: Obviously any objection with the caveat that I've already raised regarding the jurisdiction of this tribunal to consider the validity or otherwise of the agreement.
THE COMMISSIONER: Yes. Yes, anything in re-direct?
<RE-EXAMINATION BY MR MCARDLE [2.25PM]
PN446
MR MCARDLE: You were asked about the ABN number for Construction Diving Services Pty Ltd. I have here a copy of the letterhead of Construction Services. May I show the witness?
PN447
THE COMMISSIONER: Yes.
PN448
MR MCARDLE: Mr Fitzsimons, can you identify this document?---Yes.
PN449
What is it?---It's Construction Diving Services letterhead.
PN450
And read the ABN number?---It could be a bit of a struggle.
PN451
Can you see the ABN number?---I'll just - yes, 77374840782.
PN452
I've got the exhibit number of the pay slip for Mr Tucker.
**** BRIAN FITZSIMONS RXN MR MCARDLE
PN453
THE COMMISSIONER: That was H1, wasn't it?
PN454
MR MCARDLE: Can I show the witness a copy of H1?
PN455
THE COMMISSIONER: Yes.
PN456
MR MCARDLE: Read the ABN number that is shown on - first of all, do you note the letters "CDS" above ABN. What does CDS mean?---Construction Diving Services.
PN457
And read the ABN number?---77374840782.
PN458
I tender this document.
PN459
MS HOWELLS: No objection.
PN460
THE COMMISSIONER: Which one?
PN461
MR MCARDLE: The Construction Diving Services letterhead.
PN462
THE COMMISSIONER: Any objection, Ms Howells?
MS HOWELLS: No objection, Commissioner.
EXHIBIT #MC3 DOCUMENT LETTERHEAD OF CONSTRUCTION DIVING SERVICES PTY LTD
PN464
MR MCARDLE: What is better? You've been a diving supervisor in diving construction for how long? No, sorry, project manager.
You've been a
project - what would you say from your knowledge, tell me if you don't know. What would be better for extraction of an injured
person, a helicopter or a Zodiac?---A helicopter. I mean, depends on the circumstances, what the injury is.
PN465
The severity of the injury?---That's right.
PN466
Do you have within your proximity, within your premises, within your awareness, the telephone numbers for the ambulance, the helicopter et cetera?---Yes.
PN467
The barges, you've got two barges?---Yes.
**** BRIAN FITZSIMONS RXN MR MCARDLE
PN468
Have both of them been employed at work so far at the same time?---Yes, but now I run two barges together.
PN469
Okay. When did you start doing that?---Just probably about, the LC20 started going out probably round about 18, 19 February.
PN470
How many times have they worked together?---How many together?
PN471
Both at once?---Can I just - - -
PN472
Yes?---Possibly probably six times.
PN473
You were shown some documents by a friend when we both approached the witness box about minutes or tasks to be performed arising from tool box meetings?---Yes.
PN474
Any of those tasks remain undone? Have you followed them all up?---I wouldn't like to answer that definitively, but Noel, Noel Jamieson who is the superintendent, he pretty much does all that on a day to day basis.
PN475
Has anyone complained to you that they have not been followed up?---Not as lately, no.
PN476
Well, have they complained to you that they have not been followed up?---No.
PN477
Has anyone at all, prior to the industrial action commencing, has anyone said that they have a reasonable concern as to an imminent
risk to their health or safety?
---No.
PN478
Have you spoken, and it probably doesn't come through unless the - now, when are pre starts held?---In the morning, first thing. First thing in the morning.
PN479
Who brings what up at pre starts? I think we know about construction divers?
---The guys themselves.
PN480
How was that prompted?---An open forum and the superintendent or the foreman asks is there any issues that need to be addressed, is anybody got an issue.
PN481
Have you been to any of those?---No.
**** BRIAN FITZSIMONS RXN MR MCARDLE
PN482
Have you been to any tool box meetings?---Yes, a couple earlier on.
PN483
At any of those did anyone say that they had a reason, a concern about an imminent risk to their health or safety?---No.
PN484
If someone had said to you that they had a concern as to an imminent risk to their health or safety, what would you do?---I'd have to hear what the risk was, what the problem was, get the solution - - -
PN485
If you found it to be a reasonable complaint, what would you do?---Fix it.
PN486
And what would you do as to whether or not they could work if you decided it needed rectification, when would you let them work, before or after the rectification?---After.
PN487
The Safe Work Method statement. Are you satisfied one way or the other as to whether or not the requirements of that statement have been followed on this site?
PN488
MS HOWELLS: I object to that. As I understand it there are a significant number of these statements - - -
PN489
MR MCARDLE: Okay, so perhaps, so I don't confuse you, the one concerning Construction Divers. Is there more than one?---Yes, every actual - every single work activity has it's own safe work method.
PN490
Are you aware of any failure to follow any of them?---No.
PN491
Has anyone complained to you on any point, at any time, has anyone complained to you that there has been a failure to follow any of them?---No.
PN492
Is there a procedure in place for recovery of an injured or unconscious person under the water?---Yes.
PN493
If a person has the bends, what a layman calls the bends, what do you do?---He's brought up, brought up in the decom chamber, and then brought down to the pressure that he worked at.
PN494
Where is the decompression chamber?---On the barge.
**** BRIAN FITZSIMONS RXN MR MCARDLE
PN495
So there's a decompression chamber on the barge?---Yes.
PN496
Not in the Zodiac?---No.
PN497
Thank you.
THE COMMISSIONER: The witness is excused.
<THE WITNESS WITHDREW [2.34PM]
PN499
THE COMMISSIONER: Any more, Mr McArdle?
PN500
MR MCARDLE: One more witness, Commissioner.
PN501
THE COMMISSIONER: Right.
MR MCARDLE: Ms Dempsey I call.
<NICOLE DEMPSEY, SWORN [2.35PM]
<EXAMINATION-IN-CHIEF BY MR MCARDLE
PN503
THE COMMISSIONER: Thank you, sit down. The microphone is only to record. It doesn't amplify?---Okay, no worries.
PN504
I've got a bit of industrial deafness these days, can you speak up, please?---Sure.
PN505
Thank you. Yes, Mr McArdle.
PN506
MR MCARDLE: What is your position?---I'm a site administrator.
PN507
What was your role in the distribution of the Construction Diving Services Pty Ltd Blue Water Employee Collective Workplace Agreement 2007?---Okay, I received that by email from Robyn Ann Mackay. I got those, printed those off, put the information plus the agreement to - pardon me, together and then they were handed out to the employees.
PN508
Can I show the witness a document?
PN509
THE COMMISSIONER: Yes.
PN510
MR MCARDLE: Ms Dempsey, what we have here is a chain of emails, do you agree with that?---Yes.
PN511
What does this chain of emails show us?---This is when the first lot of agreement came through with what we had to do to give the employees, plus also the attachment that we had to send off to the workplace agreement - Workplace Authority, sorry. It has in there where we had one sent through that was incorrect before we actually handed them out so then we contacted the Mackay office. I can't remember whether that was via phone or email, and we got a new one sent down. 2.47.28
PN512
And what date was that?---That was the new one was sent down on 4 December.
PN513
Can I mark that document, Commissioner?
PN514
THE COMMISSIONER: If I can have a copy you can.
PN515
MR MCARDLE: If the witness could give your associate a copy, Commissioner?
**** NICOLE DEMPSEY XN MR MCARDLE
PN516
THE COMMISSIONER: Yes. Are there any objections to - - -
PN517
MS HOWELLS: Commissioner, I've only just seen this document. I assume this is my copy.
PN518
MR MCARDLE: That is, sorry.
PN519
MS HOWELLS: Thank you. So I reserve my rights.
THE COMMISSIONER: All right.
EXHIBIT #MC4 CHAIN OF EMAILS
PN521
MR MCARDLE: Now, I'll show you another document, Ms Dempsey?---Mm.
PN522
What does this chain of emails show us, Ms Dempsey?---This is the amended email that came through. This is the one that was handed out to Construction Diving Services employees.
PN523
Can you have a look, Ms Dempsey, at the schedule at the rear of this document, at the very last page of this sheet of documents?---Yes.
PN524
Have a look there at the classifications, it says diver $30 an hour, diver's assistant $23 an hour, diving supervisor, $35 an hour?---Mm.
PN525
Was any change made to that after it was handed out to the employees?---No.
PN526
That is the document that was handed out to the employees?---Yes.
PN527
And that was the document that was agreed to and submitted to the Workplace Authority?---Yes.
PN528
Could I have that mark, please, Commissioner.
PN529
THE COMMISSIONER: Yes. Ms Howells, I take it you've got the same?
MS HOWELLS: Yes, thank you, Commissioner.
EXHIBIT #MC5 CHAIN OF EMAILS WITH SCHEDULE
PN531
MR MCARDLE: Could I now show the witness a series of four documents which - well, I'm not feeding any information to her. How about if I get her to identify them and then show my friend?
**** NICOLE DEMPSEY XN MR MCARDLE
PN532
THE COMMISSIONER: Yes, that will be a good idea.
PN533
MR MCARDLE: Ms Dempsey, could you tell us what those four documents are?---They're all signed agreements by divers, our divers.
PN534
How many are there?---Four.
PN535
How many were employed at the time you submitted it?---There was five.
PN536
And where's the fifth one?---That one went to the Workplace Authority.
PN537
In view of the time, Commissioner, we don't have photocopies of all of those. Perhaps if I show them to you for your information and if we can retrieve them at the end of the hearing?
PN538
THE COMMISSIONER: Yes.
PN539
MR MCARDLE: Just if I could mark this. I apply that these four signed agreements being the one for Mr Louis - I was going to say
it's Mr Brian Fitzsimons but that would have been an error. Mr Glen Edwards, one,
Mr Damien Tucker, two, Mr Terrence Harmse, that's H-a-r-m-s-e for the record and Mr Martin Loring, L-o-r-i-n-g.
PN540
THE COMMISSIONER: Ms Howells, have you seen those documents?
PN541
MS HOWELLS: Yes, I have, Commissioner.
PN542
THE COMMISSIONER: Do you object to them?
PN543
MS HOWELLS: No, not just yet.
PN544
THE COMMISSIONER: Well, if there's no objection to them I'll mark the documents MC6 and perhaps at a later time you can give me copies of those for the file, but not necessarily now.
PN545
MR MCARDLE: Yes, Commissioner.
PN546
Do you see the divers regularly?---Yes.
**** NICOLE DEMPSEY XN MR MCARDLE
PN547
So they come into the office and talk to you?---Yes, they do.
PN548
Has any of them ever said to you that they have an apprehension as to an imminent risk to their health or safety?---No.
PN549
What would you do if they did?---I would tell Brian or Noel.
PN550
And what would you expect them to do?---To follow it up.
PN551
And do what?---Speak to the diver and then probably in a toolbox meeting or such if the diver - I would advise the diver also to go and speak to one of their supervisors.
PN552
And if there was found to be substance to their apprehension?---Yes.
PN553
What would you expect to be done?---I'd expect it to be fixed.
PN554
No further questions.
PN555
THE COMMISSIONER: Mr Coleman.
PN556
MR COLEMAN: No, nothing.
PN557
THE COMMISSIONER: Ms Howells.
PN558
MS HOWELLS: Commissioner, I'm in a little difficulty because we only found out at lunch that this witness was to be called and I hadn't had an opportunity to read these documents. I'm wondering if it would be possible to stand over the cross-examination and proceed with our witnesses. I know it's a little bit unconventional but I'm not in a position to go very far with cross-examination without reading the documents.
PN559
THE COMMISSIONER: The Commission has a time frame that it's got to make the decisions in respect of this matter.
PN560
MS HOWELLS: Yes.
PN561
THE COMMISSIONER: Now, I take that time frame to start from when I got the application for the orders but I'm not wanting to drag this out, Ms Howells.
**** NICOLE DEMPSEY XN MR MCARDLE
PN562
MS HOWELLS: No, Commissioner, and what I was hoping was we could proceed with some other witnesses which will probably take us at
least till
4 o'clock because we've got four witnesses and maybe first thing when we resume we could finish the cross-examination, or at least
start and finish it, which I don't anticipate will be very long, but in fairness I'd have - - -
THE COMMISSIONER: All right. The witness is excused from the witness box. I remind you that you're still under oath and you shouldn't discuss this matter with anybody else and you'll be recalled at a later date.
<THE WITNESS WITHDREW [2.44PM]
PN564
MR MCARDLE: In view of that, Commissioner, to have a person under cross-examination overnight and for several days, considering she's now going to have to go back to work at the workplace - you haven't asked her anything, but you've just admonished that you're not to discuss the matter with anyone.
PN565
THE COMMISSIONER: Yes, that's the normal practice. We'll finish this witness tonight.
PN566
MR MCARDLE: Yes, well, that was my anxiety.
PN567
THE COMMISSIONER: If Ms Howells can get her instructions from her solicitor who I'm sure is reading the documentation right now.
PN568
MR MCARDLE: That was to be my suggestion too, Commissioner.
PN569
THE COMMISSIONER: Yes. Yes, you're excused. Will you stay outside, please? Thank you. Are you finished at this stage, Mr McArdle?
PN570
MR MCARDLE: Yes, that's our evidence, Commissioner.
PN571
THE COMMISSIONER: Mr Coleman, yes?
PN572
MR COLEMAN: No evidence from us, your Honour.
PN573
THE COMMISSIONER: Yes. Ms Howells.
MS HOWELLS: I call Mr Martin Loring, that's L-o-r-i-n-g.
<MARTIN LORING, AFFIRMED [2.46PM]
<EXAMINATION-IN-CHIEF BY MS HOWELLS
PN575
THE COMMISSIONER: I just remind you that the microphone is only to record what you say and it doesn't amplify so you must speak up for the parties?---Yes, no worries, yes.
PN576
Yes, Ms Howells.
PN577
MS HOWELLS: Thank you, Commissioner.
PN578
Mr Loring, could you state your full name and address for the record, please?
---Martin Loring, (address supplied).
PN579
And you're a professional diver?---That's correct, yes.
PN580
And you're currently employed to work on the desalination project at Kurnell?
---That's correct.
PN581
And how long have you been working on that project?---Since the start of October 2007.
PN582
And did you have some experience in professional diving before that?---Briefly, yes, the previous couple of months. I graduated from the school in June 2007.
PN583
And where did you work after that?---In Mildura, in Victoria, the Murray River.
PN584
THE COMMISSIONER: It's pretty murky down there, isn't it?---You don't see much at all, mate.
PN585
Yes.
PN586
MS HOWELLS: Now, the nature of the work you're performing at Kurnell, has it remained pretty much the same since you started or has it changed over that time?---In different stages of the job it's changed.
PN587
Can you give a little overview of the nature of the work and how it has changed?
---Yes, I can. To start with we were surveying appropriate sites for the inlets and outlet risers. After that we drilled and grouted
in the anchor chains for the three barges that are going to be working there. After that we started water blasting. We have, sorry,
set out drill centre holes for each of the four risers, the inlets and outlets, and we started cleaning the riser pads for the next
part of the job, water blasting.
**** MARTIN LORING XN MS HOWELLS
PN588
Now, in simple terms at least in the last couple of months you've been working by diving off barges?---That's correct.
PN589
And there are currently two barges in operation?---Yes.
PN590
And since when have there been two barges?---Only in the last couple of weeks.
PN591
Okay. And is this right, that each barge is towed out from the shore a distance by a tug?---That's correct, yes.
PN592
And normally there's only one tug in respect of each barge?---That's correct.
PN593
How far out do you go from the shore?---Off the cliff you mean or out?
PN594
Out?---It's I'd say 200, 200 or 300 metres from the shore, from cliff line.
PN595
And when you're diving how deep do you go out?---Anywhere ranging from about 24 metres of depth to the deepest we've gone is about 34/35 metres.
PN596
And when you're working at that depth is it sometimes the case that you're required to work with machinery?---Yes, that's correct.
PN597
And what kind of machinery are using down there?---Hand drills, submersible drills, high pressure water blasters, surveying equipment.
PN598
This equipment, is it generally attached to the barge or is it free - - - ?---Any power tools we have generally attached to the barge, yes.
PN599
Right. And in that context, leaving aside issues of the bans, just in terms of using machinery of that sort what are the type of issues that arise with safety and with a potential breaches?---Entanglements, it's a major one with pneumatic or hydraulic lines coming from the suffer. You can suffer crushing injuries.
PN600
What do you mean by that?---Well, if you've got a drill and you're drilling your foot obviously it's going to - muscle strains, joint injuries.
PN601
Are there ever occasions where the barge has moved during being performed?
---Yes, on more than one occasion I've been in the water when the barge has moved.
**** MARTIN LORING XN MS HOWELLS
PN602
And is there a consequence of that in terms of safety issues?---Yes, there was one. One specific occasion I was in the water the submersible drill rig which is a fairly large drill rig, weighs probably three or 4 tonnes, was almost pulled completely over while I was standing next to it. Well, I was scrambling away from it at the time so.
PN603
So in terms of those kinds of incidents there's potential for broken bones and that kind of thing?---Or death even, yes absolutely.
PN604
Now, as far as you're concerned it would be true to say that there has been an issue with evacuation procedures for injured workers?---From day one with work on the barges, yes.
PN605
Now, first of all can I ask you, to your knowledge is there any written procedure which applies to the withdrawal or the removal of injured workers or injured divers from the water - - - ?---To the best of my - sorry.
PN606
- - - to the land?---To the best of my knowledge, no.
PN607
You've never seen such a document?---I've never seen it, no.
PN608
If such an incidence was to occur how would you know what to do?---Most divers we're trained in the retrieval of divers from the bottom but we're probably after that we just have to go on a take it, you know, as it comes I think as it is at the minute and to make do with the situation we've got.
PN609
Well, assuming that there was such an injury and the diver was in the water with a broken bone or some such injury which immobilised them, assuming you'd managed to get them to the surface, what would you be able to do get them into the barge first of all?---Onto the barge at the minute we'd have to try and lift them somehow.
PN610
You mean physically?---Physically lift them, yes, which would be very difficult. Or next to impossible I'd say.
PN611
There's two barges, do they have devices known as HIABs?---Yes, there is a working HIAB on the LC20 barge and there is another HIAB on the Aquila barge which to the best of my knowledge doesn't have hydraulics hooked up to it.
**** MARTIN LORING XN MS HOWELLS
PN612
And that means it's basically not in service for the purpose of any - - - ?---Yes, that's correct.
PN613
In the case of the barge that does have a working HIAB, is that a suitable device in your assessment for removing workers from the water?---No, absolutely not.
PN614
And why is that?---You've got a moving barge in the swelling and a diver moving in the swell and a solid HIAB arm, or a crane lifting arm with a hook on the end but any time it gets near the diver you wouldn't be able to hook him up because it's moving up and down like that towards the diver who's going in the opposite direction towards it. No doubt you'd hit the diver with the HIAB arm.
PN615
Have you heard of devices known as davits?---Yes, I have.
PN616
To your knowledge do either of these barges have davits?---Absolutely not.
PN617
If they did have I suppose that you would know?---Well, they haven't been since Friday so if they've been put on since then.
PN618
Now, in your assessment what would be required for safe removal of injured workers from the water?---To be absolutely safe I'd say you've have to dive off stage.
PN619
And can you explain what you mean by that?---Yes, the stage would be a platform or a man cage would be lowered down into the water to the bottom to retrieve the diver to bring him up to the top and you could take him out of the water and bring him onto the barge that way.
PN620
Now, assuming that a worker who is injured could be lifted manually onto the barge, can I just ask you how high is the barge, how far would you have to lift him?---Probably one and a half metres.
PN621
Above the water line?---Above the water line, yes, depending on the swell.
PN622
Right?---It could be less or more, depending on the swell.
PN623
Based on your experience of what's available to you at present how would you then be able to get the worker back to the shore?---To the best of my knowledge the tug boats would be our only avenue to take them back to shore.
**** MARTIN LORING XN MS HOWELLS
PN624
Now, how would you get the worker on the tug boat?---With great difficulty.
PN625
And why is that?---Because of the swell. There's always swell out there on the job so you've got a tug and a barge moving not at the same time. They're always moving contrary so it would be very, very hard. It's hard to get an able bodied person off the barge onto a tug let alone a prone person in a stretcher.
PN626
So you're basically saying you have to get them from one moving surface onto another?---Yes, that's correct.
PN627
And they're not moving the same?---And they're not level surfaces either.
PN628
Now, it's been suggested in earlier in the proceedings that it would be possible to use the survey boats for this purpose. Now, has it ever been suggested to you that that should be done?---It has been suggested, yes. It was rejected outright.
PN629
It was outright by who?---By the divers.
PN630
I see. And what was the reason for that rejection?---It's a tiny boat. It's a runabout and you couldn't lay anybody down in it. There's no room for anything or anybody in there apart from pretty much the driver.
PN631
I see?---You couldn't lay a stretcher down in there.
PN632
I see. Is the survey boat always in the vicinity of the tug?---No, it's not.
PN633
Sorry, of the barge?---No, he's not even there some days or Greg the driver is even on site some days.
PN634
In your view what is the proper method for transporting an injured worker from the barge to the shore?---A fast boat, a decent size fast boat with rubber sides, inflatable sides.
PN635
Now, if the tug boat was used for that purpose - I withdraw that. The tug boats are normally having towed the barge out would remain in the vicinity of the barge, is that right?---Yes, that's correct.
PN636
And what functions are they called upon to perform?---At the minute they're called on to take the mooring lines basically from the barges out to the fixed anchors which we've got on the bottom which are - with can buoys on the surface and apart from that they're just on standby for when we call them.
**** MARTIN LORING XN MS HOWELLS
PN637
And do they have any role to play if there are any difficulties with cables and so forth?---Yes, they've got to retrieve them I suppose if a mooring comes loose or whatever. They're there to retrieve them. There's no other method of getting them back apart from hauling the cable back on board with the winch.
PN638
And if the tug boat is conveying someone to shore or something or not available for that purpose can that cause some difficulties?---Yes. Well, basically barges have to drop anchors and it's pretty much left there with it's own devices.
PN639
And what if an anchor breaks or comes loose?---It drifts off.
PN640
And does that cause any issues in terms of health and safety?---I think the people on board would say so.
PN641
What about if people are diving at the time?---Yes, absolutely. They'd be dragged along with it.
PN642
Have anchor cables ever broken or come loose in your experience?---Not broken but it's dragged anchors on many anchors.
PN643
Now, is this correct, that the issue of evacuation of injured workers raises a number of different issues from your perspective?---Yes.
PN644
Now, have you personally raised these issues with management at any time?
---Many times.
PN645
When you say many times, how many times do you say?---At least every couple of weeks since December. They've been brought up in pre starts and they're mentioned casually on numerous occasions to management.
PN646
Can you remember any specific conversations you've had with any managers about the issue?---Specific managers, no, I can't really know one specific conversations but as I said, in numerous pre starts it's brought up and on the barge in passing conversation it's brought up.
PN647
When it's been brought up at the pre start meeting who's been there from management to take on board those issues so to speak?---In the early days of the project Noel Jamieson, the marine supervisor, was there.
**** MARTIN LORING XN MS HOWELLS
PN648
Yes?---And this year Shane Baumann who is now the person running the Aquila barge. That was at pre start meetings.
PN649
And what was response did you get from either of those gentlemen about the issues?---Earlier on with Noel he just said, you know, we're looking at it, we're working on it and later on with Shane I think he hasn't got quite the authority that Noel has, so he just basically says he'll pass it on to management.
PN650
Do you remember ever getting told that something was going to be done about getting more appropriate procedures in place?---Yes, in January there was a safety meeting which a number of Blue Water safety committee or a couple of them were present and they said yes, look, we're on it, we're doing it.
PN651
Did they explain to you what they were doing or what they proposed to do?---No, not exactly. We put a bunch of issues or possible solutions to them and they - - -
PN652
When you say we, who are you talking about?---Everybody in the room which is basically all the barge staff, the divers, riggers or, you know, the grout staff. Everyone that's present on the barge was at the meeting.
PN653
So that was a meeting in January?---Yes.
PN654
And who from management was at that meeting?---I don't recall any from our management.
PN655
Any from the other companies?---Sorry, which other companies?
PN656
Were there any of the attendees that were - - - ?---No, look, I don't recall any from management being there.
PN657
Okay. And what proposals were put by .....?---Basically the boat that I mentioned to you, the rubber sided boat, at the time we mentioned that we needed stretchers that would float and with straps on them.
PN658
Do you now have such stretchers?---There are stretchers there now, yes.
PN659
So that's one thing which has been fixed?---It took two months to get it, but yes, they got it.
**** MARTIN LORING XN MS HOWELLS
PN660
Has anything been conveyed to you by any representative of management to say that something will be done about the difficulty of lifting people out of the water if they're injured?---Their proposal was the HIAB, with the HIAB arm.
PN661
And was any response - did the divers to your knowledge respond as to whether that was satisfactory or suitable mechanism?---Formally, no.
PN662
And informally?---Informally, yes.
PN663
What .....?---We just passed on it's not, you know, it's not going to work.
PN664
And we know that one HIAB is not in operation anyway?---Yes, that's correct.
PN665
And as far as you said that you suggested that a vehicle - sorry, rubber sided boats, a Zodiac be purchased, is that right?---Yes, yes.
PN666
And were you told whether that would occur or not?---No, this was back in January when they said they'd take everything on board.
PN667
And subsequent to that meeting have you been told anything about whether any steps would be taken to get a suitable craft?---No, not myself.
PN668
Has anyone mentioned anything to you?---No, not to my knowledge.
PN669
Now, aside from the question of evacuating injured workers, would situations ever arise in your experience where the entire workforce would need to be evacuated from a barge?---It's highly unlikely, but yes.
PN670
Is there any procedure in place that you know of for that .....?---Not that I know of, no.
PN671
Has that ever been raised in any of the meetings you've attended?---Yes, at that safety meeting it has been, yes.
PN672
And what response have you had to that issue?---We were told at the time there were going to be life rafts put on board but to the best of my knowledge none have been on either of the barges.
PN673
You've said that the issues of evacuation and particularly evacuation of injured workers has been raised on a number of occasions
by yourself and other divers?
---Yes, that's correct.
**** MARTIN LORING XN MS HOWELLS
PN674
Now, how important would you say that issue was for you personally?
---Paramount.
PN675
And why is that?---Well, it's my life that's at stake potentially and the workers around me.
PN676
You've made a decision to cease work. When did you make that decision?
---Before work Monday morning.
PN677
Was it made a meeting of divers?---Yes, all the divers came together on Monday morning and we had a meeting and discussed it.
PN678
And you've personally supported a decision to cease work?---Yes, absolutely.
PN679
Now, in terms of that decision, what significance if any did the health and safety issue of evacuation of employees have?---You know, the major issue we have, the major reason, yes.
PN680
Why did it become an issue particularly at that time?---As of the last couple of weeks we've had lots of new divers come on board and we've had two barges working which doubles the chances of an accident and months and months of inaction by management. It has been brought up since last year and it seems that nothing apparently has been done.
PN681
Has anyone from the Maritime Union of Australia at the meeting on Monday?
---No.
PN682
Did anyone from the union recommend to you or advise you that you should stop work?---No.
PN683
I just want to ask you a few questions now about the agreement which is said to apply to your employment. Can you explain the circumstance in which you were first approached about this agreement?---Yes. In, I don't know the exact date, roughly early to mid December, we were approached and handed the agreement over and told to examine it.
PN684
Yes?---Which we did. Upon examining it we had a few issues with the non payment of an allowance which in a day or two afterwards was rectified. I'd say it was probably five or six days after that we were approached and told we need to sign the agreement, which we did.
**** MARTIN LORING XN MS HOWELLS
PN685
When you say you were approached and told you needed to sign the agreement, can you first of all say who approached you?---I think it was Brian.
PN686
I see. Were you at that stage provided with a fresh copy of the agreement?---Yes, I was.
PN687
Do you remember when the date of that was?---That I signed it?
PN688
Yes?---I've been shown it was 13 December.
PN689
Now, when were you provided with a copy of the agreement in the first instance were you provided with a document headed Information Statement for Employees?---Yes, we did.
PN690
May I just approach the witness?
PN691
THE COMMISSIONER: Yes.
PN692
MS HOWELLS: If you could just have a look at that document, Mr Loring?
---Yes. Similar apart from that page.
PN693
When you say similar apart from that page, you're directing attention to page 5 which has some handwriting on it?---That's correct.
PN694
And what's different to the one you were given?---The one we were given was just a blank photocopy of all these pages. It had no handwritten information on it whatsoever.
PN695
Now, you see here it says words to the effect that employees were asked to nominate one person to sign on their behalf ..... was duly nominated. You see that's the handwriting in the box?---Yes.
PN696
You've already said that handwriting wasn't there. Now, were you ever asked to nominate a person to sign the agreement on your behalf?---No, we weren't.
PN697
Just taking you back to when you were approached to sign the document, you've touched on this but can you remember what was said to you when Mr Fitzsimons said - - - ?---Well, basically from the time we had the issues about the living away from home allowance wasn't paid I pretty much forgot about the agreement and we were approached the next week and we decided to have - the time has come we need to sign it.
**** MARTIN LORING XN MS HOWELLS
PN698
THE COMMISSIONER: Did you sign it?---I did sign it, yes.
PN699
MS HOWELLS: Nothing further, thank you.
THE COMMISSIONER: Mr McArdle.
<CROSS-EXAMINATION BY MR MCARDLE [3.14PM]
PN701
MR MCARDLE: What was your hourly rate in Mildura?---$20 an hour - sorry, $25 an hour, flat rate.
PN702
And this is $30 an hour plus overtime?---That's correct.
PN703
You're pretty well paid, aren't you?---That's up for debate, mate.
PN704
MS HOWELLS: I object, relevance.
PN705
THE COMMISSIONER: It doesn't matter, I'll allow the question.
PN706
MR MCARDLE: You're pretty well paid, aren't you?---Compared to other jobs I've had, no.
PN707
This is a good agreement, isn't it?
PN708
MS HOWELLS: I object.
PN709
THE WITNESS: Yes.
PN710
MR MCARDLE: This is all about the agreement, isn't it?
PN711
MS HOWELLS: It's not about whether it's a good agreement or not.
PN712
THE COMMISSIONER: I'll allow the question.
PN713
MR MCARDLE: It's a good agreement, isn't it?---No. We stated that at the time it wasn't - we didn't like the agreement but - - -
PN714
That's before you signed it?---Yes.
PN715
So you want to get out of the agreement?---I'd like a better one.
**** MARTIN LORING XXN MR MCARDLE
PN716
So you'd like this to be set aside, wouldn't you?---I would, yes.
PN717
Well, it would be better if you had an agreement with the MUA acting for you?
---I think we'd get a better agreement with those people representing us.
PN718
So really the answer to my question is that if I said this is a good agreement, isn't it, the answer is no, it's not a good agreement, you'd say, wouldn't you? You really want this agreement to be got rid of, don't you?---I'd like a better one, yes, that's correct.
PN719
This one you feel as though that it does not adequately remunerate you, doesn’t it?---That's correct.
PN720
And you're a member of the MUA?---I am, yes.
PN721
And they do a better job acting for you than just acting a non union collective?
---We tried before and got nowhere.
PN722
Yes, but do you think you'll get somewhere now?---I think we've got a better chance.
PN723
So if you're successful in this exercise you'll be happy that the union will be able to negotiate an agreement with the employer?---Yes.
PN724
Zodiacs, think about Zodiacs, do they bounce around in the swell like other boats?---Yes, they do.
PN725
So when you're transferring someone from a barge to a Zodiac do the Zodiac bounce up and down?---Yes.
PN726
Survey boats, do they bounce more than Zodiacs?---The one being mentioned, yes.
PN727
Now, helicopters, do they bounce?---No.
PN728
Would you rather be evacuated by a Zodiac or a helicopter if you were injured?
---A helicopter.
PN729
How far from Sydney airport do you work?---It would be within five kilometres I'd say.
**** MARTIN LORING XXN MR MCARDLE
PN730
When you're down below you're in voice contact with those up above, aren't you?
---That's correct.
PN731
And there's also a video of everything you're doing, isn't there?---That's correct.
PN732
So the person can guide you and you're not the only one who sees hazards, are you?---That's correct.
PN733
The operator upstairs sees the hazards too. Now, you've said a danger of crushing, who did you bring that up with?---My supervisor.
PN734
And who's he?---Rowland Keith.
PN735
And when did you bring that up?---On the day.
PN736
The danger of crushing. What date was that?---I couldn't give you the exact date but I can find out.
PN737
What was the event, I don't want the date?---The event, the drill rig was pulled over by the barge drifting.
PN738
And you said that was dangerous?---Absolutely dangerous.
PN739
And what did he say?---He agreed.
PN740
Okay. And what steps did he take that you're aware of?---You'd have to ask him, I don't know, none.
PN741
When the swell gets above about 1.5 metres you come in, don't you?---We're supposed to.
PN742
What, you don't?---It's not my decision, mate. I don't drive the barge.
PN743
But you don't stay below when the swell goes above 1.5 metres, do you?---I wouldn't know when I'm on the bottom.
PN744
Mm?---I wouldn't know if I'm on the bottom.
PN745
And no-one has ever told you that the swell is coming up, it's time to surface? No-one has ever told you that ever, in all the time
you've been a diver ever?
---That's correct.
**** MARTIN LORING XXN MR MCARDLE
PN746
Not once?---I've just answered that, no.
PN747
Now, what's the overtime rate in the agreement?---Time and a half.
PN748
It's a good overtime rate, isn't it?---That's open to debate but I think it could be better.
PN749
So if the union acted for you you could do better?---Potentially, yes.
PN750
Now, when this barge moved, when the barge moved and the thing fell over, what did you do?---I hooked it up and got out of the water.
PN751
You got out of the water? You removed yourself from the risk. That's your training, isn't it?---Yes, that's correct.
PN752
You informed those above and pull me up?---No, not pull me up.
PN753
You come up under your own steam?---Come up on your own steam.
PN754
How many decompression chambers are there on the barge?---One.
PN755
One decompression chamber per barge?---That's correct.
PN756
They have life jackets?---Everyone that goes on the barge has a life jacket.
PN757
Is there a drill if the barge sinks you get onto the tug, don't you?---We've never had a drill for the barge sinking, no.
PN758
Is there telephone contact with the shore?---Telephone, I don't know. We've got two way radio or marine radio to the shore.
PN759
And the two way radio is connected to the office?---Yes, I assume so.
PN760
So if a person was seriously injured the office could be radioed to send a helicopter forthwith. That would be correct, wouldn’t it?---That would be correct.
PN761
When the vessel moved and the thing fell over, did anyone require you to keep working?---I was asked to attach the crane hook to the drill rig, yes.
**** MARTIN LORING XXN MR MCARDLE
PN762
What did you do?---I did it.
PN763
That was on your way to the surface?---No.
PN764
You made safe and then you went up to the surface?---No.
PN765
You didn't? Were you in the training for evacuation of an unconscious person that took place?---Yes, I was.
PN766
Are you paid any extra under this agreement for doing evacuation drills and the like?---Extra, not that I know of, no.
PN767
If the union was to negotiate an agreement would you think it would be good if they got you extra pay for doing evacuation drills and things?---I haven't considered it.
PN768
Do you think it would be a good idea?---I thought evacuation drills would be a matter of course for everybody on board the barge.
PN769
And they wouldn't be paid extra for attending them or anything?---You get paid your regular wage.
PN770
So if this agreement is set aside and the union commences to negotiate one you won't bring that up?---No.
PN771
What sort of things would you bring up to put in the new union agreement?
---There's various allowances that we aren't getting that other people say on the Kurnell side are getting, site allowance.
PN772
What would that be, site allowance?---Site allowance, yes.
PN773
How much - - - ?---That's a common allowance for any construction site.
PN774
That doesn't pay in this agreement?---No.
PN775
You think that so it should be set aside and there should be an agreement with the union that contains that?---Absolutely.
PN776
THE COMMISSIONER: Mr McArdle, I'm not going to set the agreement aside. Have no fear of that.
**** MARTIN LORING XXN MR MCARDLE
PN777
MR MCARDLE: You're not, so I don't really have to bother with that line of questioning?
PN778
THE COMMISSIONER: Mr McArdle, you don't have to bother with that.
PN779
MR MCARDLE: All right. When did you join the MUA?---In January.
PN780
Now, just think about Monday morning, you had a meeting. What time was this meeting?---I'd say about quarter to six, 10 to 6 am in the morning.
PN781
Who was present?---13 or 14 of the divers.
PN782
13 or 14, and what was discussed? Well, was the agreement discussed?---No.
PN783
No-one mentioned the agreement?---No.
PN784
Are they happy with the agreement?---No.
PN785
They're not happy with the agreement but they kept numb about it on Monday?
---On Monday morning, yes, that wasn't an issue on Monday.
PN786
Not a word?---No, not a word.
PN787
No, not a whisper?---I've already said that.
PN788
Okay. And a bunch of issues were brought up, is that right? No, hang on, have I got the right page? No, there was a meeting about safety issues, right?---That's correct.
PN789
Okay. And safety issues were discussed at this meeting of 14 people?---Yes.
PN790
And you can picture them now because it was the day before yesterday?---Yes.
PN791
Who spoke?---I spoke, several other people spoke.
PN792
What did you say about safety?---Basically that I wasn't satisfied with the resolution we get for bringing safety issues. We had a member of our dive team that was dismissed for bringing up safety issues.
**** MARTIN LORING XXN MR MCARDLE
PN793
Who was he?---Rowland Keith.
PN794
When was that?---I'd say approximately three weeks ago, four weeks ago.
PN795
Who did you complain to about that?---Verbally to our dive supervisor.
PN796
That he was sacked for bringing up safety issues?---Yes.
PN797
What words did you use?---Probably this is bullshit.
PN798
Where were you when you said that to your dive supervisor?---On the barge.
PN799
You were on the barge?---Mm.
PN800
And you said someone's been sacked for bringing up safety issues and he said to you, did he not, words to the effect of he was actually
sacked for leaving work early when he was told to stay until knock off time. That's why, is that right?
---That's correct.
PN801
He did say that. That was actually the reason that person was sacked, isn't it?
---That's open for debate.
PN802
Well, did he knock off early or did he not?---He did.
PN803
There you go. And he had worked there for less than a month. That's correct, isn't it?---Yes, that's correct.
PN804
So you brought up safety issues. Did you bring up more than one safety issue?
---Yes.
PN805
Okay, name one?---There's abandonment of the barge, the dive recovery.
There's - - -
PN806
You brought these all up on Monday morning?---Yes.
PN807
Let's take them one at a time. What did you say about abandonment of recovery at this meeting?---This is after months of discussions when the issues have been brought up and they still haven't been resolved.
**** MARTIN LORING XXN MR MCARDLE
PN808
On Monday morning this is?---On Monday morning.
PN809
And did you get any other people to speak when you said this?---Yes.
PN810
Who were they?---Off hand I couldn't tell you names.
PN811
So you don't remember?---There was general agreement or unanimous agreement.
PN812
They all just said, yes, yes, yes, like in parliament, did they?---Yes. Without the suits.
PN813
Yes, without suits. And they don't get overtime in parliament.
PN814
THE COMMISSIONER: But they get more money?---Yes.
PN815
MR MCARDLE: And it's also non union coverage.
PN816
THE COMMISSIONER: Where, in parliament?
PN817
MR MCARDLE: Yes.
PN818
THE COMMISSIONER: I don't know - - - ?---They don't need a union.
PN819
MR MCARDLE: They're all secretaries.
PN820
THE COMMISSIONER: Yes.
PN821
MR MCARDLE: Okay. What was the next thing you brought up?---Sorry, which one did I just mention?
PN822
You said abandonment?---The abandonment. The diver recovery.
PN823
Diver recovery?---The diver is the paramount issue here.
PN824
What did you say about that?---After three months of bring up they still don't have a reasonable method to bring the diver off the surface of the water.
PN825
Did anyone respond to you saying this?---Yes.
**** MARTIN LORING XXN MR MCARDLE
PN826
What did they say?---Yes, they agreed.
PN827
And was anyone suggesting anything should be done about that?---Yes.
PN828
What did they say?---They said after months and months of inaction we should walk off the job, they're not listening to us.
PN829
Who said that?---I did.
PN830
You said that?---I did, yes.
PN831
And so did you put that as a motion and someone second it or anything?---Yes, we did. We had a vote on it and unanimously voted.
PN832
Who seconded this motion?---Sorry?
PN833
Who seconded it?---I put the motion up and asked for a show of hands.
PN834
Okay. So on Monday morning you had this meeting and there was no official of the MUA there?---No.
PN835
THE COMMISSIONER: It was at quarter to six in the morning.
PN836
MR MCARDLE: Quarter to six in the morning.
PN837
THE COMMISSIONER: Most union officials of the day are still in bed at that time, Mr McArdle. I thought you would be aware of that.
PN838
MR MCARDLE: Well, in my youth I used to be up at six.
PN839
THE COMMISSIONER: Well, so did I but this is the modern era.
PN840
MR MCARDLE: Because all the painters and dockers were tanked by seven.
PN841
THE COMMISSIONER: Yes, I know. They nearly ..... in the dock there'd be some people that wondered why.
PN842
MR MCARDLE: Just think now about Monday morning and quarter to six, when was - thinking now about telephone or in person, or an
email, when was the time previous to that that you communicated with an official of the MUA?
---Friday afternoon.
**** MARTIN LORING XXN MR MCARDLE
PN843
Who did you speak to?---Warren Smith and Paul McAleer.
PN844
And did he say to you we'll get rid of this agreement and we'll have a proper union one?---No, he didn't.
PN845
He didn't say that?---No.
PN846
So he doesn't want to do that?---I don't have - - -
PN847
He doesn't know what Warren Smith wants to do, good point.
PN848
THE COMMISSIONER: Did you want to - - -
PN849
MS HOWELLS: He's withdrawn it.
PN850
MR MCARDLE: I've withdrawn it, yes. So Warren Smith didn't say anything about the agreement?---On the Friday?
PN851
Yes?---No.
PN852
Not a mention of the agreement, not one word about the agreement?---Well, sorry, it was discussed, yes.
PN853
What did Warren Smith say now anything about it was discussed, what did Warren Smith say?---He said we could get better pay and conditions with a union bargain agreement.
PN854
So he said that you should take some sort of action to get rid of this agreement?
---No, he didn't say that at all.
PN855
He didn't say that?
PN856
THE COMMISSIONER: That wasn't his answer, Mr McArdle.
PN857
MR MCARDLE: He said no as I was putting it to him and he's rejected it.
PN858
THE COMMISSIONER: I see. I thought you'd repeated it.
PN859
MR MCARDLE: What did he say about the agreement again, I'm sorry?---He said you could get better pay and conditions with a union bargain agreement.
**** MARTIN LORING XXN MR MCARDLE
PN860
And what did you say?---And I agreed with him.
PN861
Okay. Was there anything in that conversation that you were doing anything about that?---No, we discussed the options.
PN862
What were they?---Well, we discussed we were going to management with those or - - -
PN863
Tell me the options. You discussed the options, option 1?---We could go to management and talk again which has got us nowhere in the past.
PN864
Option 2?---We could walk out.
PN865
About the agreement?---No, about the safety issues.
PN866
But that way you would get a union agreement?---No.
PN867
I'm talking about what Warren Smith said and you said about the agreement?
---Warren Smith just told us he would support us in any action we took.
PN868
Who's us?---The divers.
PN869
How many of them met Warren Smith on Friday?---There was I think 11, 10 or 11.
PN870
And they're all members of the MUA?---Yes, as far as I know.
PN871
And they spoke about the - they might have spoke about other things and they spoke about the agreement with Warren Smith, among other things?---Among other things, yes.
PN872
And he said, have I got this correct, that you could do better with a union agreement?---We'd have more chance of getting a better deal.
PN873
Now, concentrating on that now, what did he propose you do about getting a union agreement?---Nothing.
PN874
So he said it would be better to have a union agreement but let's do nothing or that was all he said?---He left the decision up to us, mate.
**** MARTIN LORING XXN MR MCARDLE
PN875
Did any of the 12 people say what should be done about getting a union agreement?---No.
PN876
No-one said anything about it? Silence reigned, is that correct?---In what regard silence reigned?
PN877
Well, there was a consensus among 12 people that the non union agreement, my words and nobody else's but a fair summary, no good?---Mm.
PN878
Warren Smith said yes, you would do better under a union agreement, did he?
---That's correct.
PN879
And then what, no-one said anything? What happened then?---Then we had a beer.
PN880
You had a beer. So no-one spoke?---There were other issues ..... mate. It's not as if that was the only thing on the agenda. We had the safety issues which were the main crux of the meeting.
PN881
You had a ..... - no they weren't. Although it might have been later ..... - - -?---I'm telling you ..... main crux of the meeting.
PN882
We've established that the union agreement would be better than a non union agreement, that was discussed?---That was a discussion.
PN883
And that was a - - -?---Not the main, that was a discussion.
PN884
Yes, you said. And that was immediately before you had a beer?---Among beers, yes.
PN885
Okay, sure. A civilised Friday afternoon ale?---It was a casual meeting, yes.
PN886
A palette cleanser?---Of sorts.
PN887
And what was said over this civilised ale would be irrelevant information if I asked you to name the brand. But over this civilised ale was the agreement discussed?---Yes.
PN888
Who by?---Everyone at the table.
**** MARTIN LORING XXN MR MCARDLE
PN889
And what did they say about the agreement?---The one we've got?
PN890
Mm?---I think we could do better.
PN891
And what did they say over a beer should be done about it?---We didn't discuss that.
PN892
They've just said it's no good?---Yes.
PN893
And we won't do anything about it?---We could do better, yes.
PN894
But when safety came up you got a very clear aim as to what you were going to do about it?---That was the main reason we were there.
PN895
Now, just think about this if you were watching yourself now. Now, I understand the point you need to make and I understand what you might have been advised as. You don't have to tell me what you've been advised about. Just think about yourself. You're suggesting to this Commission that something you feel quite strongly about, you're underpaid, you could do a whole lot better, you miss out on a site allowance, you shouldn't have been made to enter into the non union agreement, you're saying all that, you feel strongly about it. And you'd have this Commission believe that you had in a meeting with the union and with 12 other people over a beer in an atmosphere of consensus, no one was going to do anything about it. Just think about it. How was - - -
PN896
MS HOWELLS: I object.
PN897
THE COMMISSIONER: Yes, Ms Howells?
PN898
MS HOWELLS: There have been a number of questions about what was said, this is now an argument - - -
PN899
MR MCARDLE: I was about to put a question.
PN900
MS HOWELLS: It's an argumentative question. We can see from the five minute preliminaries, in my submission, as I understand it.
PN901
THE COMMISSIONER: Yes. Well, just confine yourself, Mr McArdle, to the question rather than the dramatics beforehand.
**** MARTIN LORING XXN MR MCARDLE
PN902
MS HOWELLS: .....
PN903
MR MCARDLE: I put it to you that on Friday discussion was held in some form or other on how to get out of the non union agreement?---Incorrect.
PN904
Not one syllable?---Incorrect, no.
PN905
Who told you - have you been told since Friday that taking action because of health and safety is not regarded as prohibited industrial action?---No.
PN906
No one has told you that?---No.
PN907
When did you decide to put the picket line on?---Sorry?
PN908
When did you decide to put the picket line on?---Monday morning.
PN909
Did the union ever suggest to you that the - did Mr Smith ever suggest to you that the picket line be put up?---No.
PN910
Never did?---No.
PN911
Would it surprise you if Mr Smith had suggested to the company that he was going to put a picket line up over a month ago?---It could have been yesterday.
PN912
Can I show you an email? I want to show the witness attachment B of 5 of MC1. Would you like to read that email out loud. Who is it from, who is it to?---From Warren Smith to Brian Fitzsimons:
PN913
Brian, your response is somewhat disappointing and can only be interpreted as a rebut to the union and your employees who are actively seeking a union collective agreement. Your employees had a different view with respect to the quality and fairness of their non union WorkChoices agreement. If you think your company is best serviced by a continued utilisation of WorkChoices then all I can say is that life will demonstrate a different view. It is our view you have hidden behind this disgraced anti union legislation to undermine the conditions of divers the desal plant and this is clearly a point we will have to take up with the State Government as well as in the community campaign that we'll put in place to highlight your company's anti union position. We still remain available to discuss issues otherwise we will see you at the series of demonstrations we are about to organise at your gate.
**** MARTIN LORING XXN MR MCARDLE
PN914
And can I get you to read the next one, being what you've just read out was replied to. Who is it to and who is it from?---From Brian Fitzsimons to Warren Smith:
PN915
We refer to your recent meeting and your inquiry regarding agreement coverage for the diving personnel employed by us. During 2007 we discussed the matter directly with staff. Those talks resulted in a collective agreement which has been correctly registered under the Workplace Relations Act. The result of the assessment of the agreement under the fairness test is not yet with us, however in view of the fact that the agreement improves on every relevant issue of the award and leaves those covered quite considerably better off there is no doubt that it will pass the test. The agreement comes as the entire period of our contract on the desalination plant and for that reason provides for regular remuneration reviews by the company. There is thus no need to proceed further with your inquiry as to agreement coverage.
PN916
Now, sir, between 5 February and 3 March did Mr Smith say to you at any time that he was going to organise industrial action on your behalf or otherwise?---Not to me, no.
PN917
Does it surprise you that he's had this intent since - - -
PN918
THE COMMISSIONER: Yes?
PN919
MS HOWELLS: Mr Loring's surprise or otherwise is irrelevant in my submission.
PN920
THE COMMISSIONER: Yes. I don't know that the witness can help us any more, Mr McArdle. He said he didn't know.
PN921
MR MCARDLE: So to the best of your knowledge and belief it was not Mr Smith's intention to have the agreement set aside and replaced with a union one?---To be honest, no.
PN922
And this dispute is nothing about whether or not the non union agreement should be set aside is it?---No.
PN923
So none of that. So you're happy to go back to work with the non union agreement in place aren't you?---No.
**** MARTIN LORING XXN MR MCARDLE
PN924
You're not happy to go back to work?---No.
PN925
So you don't really want to go back to work until the non union agreement is set aside?---I've got no say with the management of the - - -
PN926
But you don't do you, you don't want to go back to work?---No, I won't.
PN927
You won't go back to work until the non union agreement is set aside, is that what you're saying?---That's correct.
PN928
I've shown the witness a pamphlet. Have you seen that pamphlet?---Yes.
PN929
Did you hand one of these out at all?---I did on Monday morning, yes.
PN930
That would be - - -
PN931
THE COMMISSIONER: I have it in front of me.
PN932
MR MCARDLE: Yes. I was going to identify the attachment number, but I don't think there's any dispute. That would be BF7 of MC1. Could I have a moment please, Commissioner?
PN933
Do you agree with me that you handed this out?---Yes.
PN934
And this represented your position did it?---Somewhat, yes.
PN935
A union collective agreement is all we want. Our employer says no so we have said no as well. No work until we get a fair go. The Australian people voted against WorkChoices and now Construction Diving Services wants to use those anti worker laws against us.
PN936
That represents your view?---Yes.
PN937
All the other workers on this New South Wales Government desalination project have union collective agreements. The MUA divers are the only ones without the basic right to collective bargaining.
PN938
Et cetera. That's what should be changed shouldn't it?---Absolutely.
**** MARTIN LORING XXN MR MCARDLE
PN939
No further questions.
PN940
THE COMMISSIONER: Mr Coleman?
PN941
MR COLEMAN: No, I have nothing.
PN942
THE COMMISSIONER: No questions. Anything in redirect, Ms Howells?
PN943
MS HOWELLS: Yes, thank you, Commissioner.
PN944
MR MCARDLE: Before she starts can I ask one more question?
PN945
THE COMMISSIONER: Yes.
PN946
MR MCARDLE: I say she, excuse me, she is a she. I should not have said that. I was jumping to my feet and I was leaping up instead of thinking. My apologies.
PN947
Now, the safety issues Monday morning?---Yes.
PN948
Did you bring them up with the employer before you stopped work?---No.
PN949
MS HOWELLS: Do you mean on Monday morning?
MR MCARDLE: Yes, on Monday morning?---No.
<RE-EXAMINATION BY MS HOWELLS [3.40PM]
PN951
MS HOWELLS: Mr Loring, you were asked about the sacking of the delegates - the ..... man named Rowland?---That's correct.
PN952
And what was his surname sorry?---Keith.
PN953
Rowland Keith, thank you.
PN954
It was put to you that he was sacked for leaving work early and you said that was open to debate?---Yes.
PN955
What caused you to say that?---It was fairly open knowledge around the site that Rowland and myself had been to see the union before they came to speak to Brian and Barry Dempsey, and it was open knowledge that we were fair game.
**** MARTIN LORING RXN MS HOWELLS
PN956
MR MCARDLE: Well, open knowledge that was fair game doesn't sound like sound evidence. I object to hearsay evidence. It has to be specific.
PN957
THE COMMISSIONER: I'll allow the evidence and I'll note your objection, Mr McArdle. It's getting late in the afternoon.
PN958
MS HOWELLS: Mr Rowland was ostensibly sacked for leaving work early. Are you aware of any other employees leaving work early at any stage?---All of us at some stage have left work early, yes.
PN959
And was that done to management's knowledge?---Yes.
PN960
And you've done it yourself?---Yes, that's correct.
PN961
Were you told that you shouldn't though at any stage?---No.
PN962
In what circumstances did you leave early?---There'd been several days throughout this job where we haven't had work to do and Brian himself had sent us home early.
PN963
The leaflet that you were shown - and tell me if you want to see it again?---No, that's okay.
PN964
That's the leaflet which was said you did hand out to some people. That refers to the sacking of the delegate for raising safety concerns, and it's just recently the MUA delegates on site we sacked after raising safety concerns in the workplace. Now, in your mind do you make a linkage between safety issues and a collective agreement or the type of collective agreement you have?---Absolutely.
PN965
And why is that?---Well, there is - we've got no confidence in the process in the collective agreement, it just hasn't worked. We've brought it up. Our forum for bringing up safety issues is in the prestart meetings in which they are regularly brought up and regularly ignored.
PN966
And what issues are you specifically referring to there?---To the diver evacuation for the abandonment of - that's the evacuation of the barges.
PN967
Yes. You were asked questions about did you have any role in preparing the text of that leaflet?---No. The first I saw it Monday morning for the first time.
**** MARTIN LORING RXN MS HOWELLS
PN968
And does it include all of your concerns in full or not?---No.
PN969
And why is that?---Sorry?
PN970
Why do you say it doesn't include all of your concerns?---I haven't had a look at it to tell you that, sorry.
PN971
THE COMMISSIONER: Just while you're approaching I'd just like to ask the witness a question based on - when you say you saw it on Monday morning for the first time, how did you see it, where did you get it from?---The union produced it.
PN972
But you said there was no union officials at the meeting on Monday morning?
---Not at quarter to six Monday morning. Monday a.m. after we made our way to the gate and the union arrived.
PN973
MR MCARDLE: It took about 10 minutes to - - -
PN974
THE COMMISSIONER: Don't say it.
PN975
MS HOWELLS: .....
PN976
MR MCARDLE: I was just surmising how quick people are to print things these days.
PN977
THE WITNESS: No, this doesn't bring up the specific safety issues that were at the heart of our action.
PN978
MS HOWELLS: Now, but for the issue of evacuation procedures would you have stopped work?---No.
PN979
Nothing further for the witness.
THE COMMISSIONER: Thank you. The witness can leave the witness box. You can stay in the hearing room if you wish or you can go.
<THE WITNESS WITHDREW [3.45PM]
PN981
THE COMMISSIONER: Are you ready to cross-examine Ms Dempsey, Ms Howells?
PN982
MS HOWELLS: Well, I haven't had a chance to look at the documents, Commissioner.
PN983
THE COMMISSIONER: Well, I'm going to release her if you're not.
PN984
MS HOWELLS: Commissioner, my preferred position would be, I have no objection to her talking to anyone overnight, but I'd really prefer to have a proper look at the documents before I cross-examine her. So if that was acceptable to my friend she can talk to anyone she likes. I haven't started to cross-examine her but I would like to do that tomorrow if possible.
PN985
MR MCARDLE: We have no plans to discuss anything with her, but if she would feel a lot better personally if she was released from that obligation.
PN986
THE COMMISSIONER: Look, bring her in and I'll officially release her. She can talk to who she likes and be re-sworn tomorrow.
PN987
MR MCARDLE: Yes, Commissioner.
PN988
THE COMMISSIONER: How many more witnesses have you got, Ms Howells?
PN989
MS HOWELLS: Probably another three I think, Commissioner, but we may be able to reduce that - assess that overnight, at least one more anyway.
PN990
THE COMMISSIONER: Yes. Ms Dempsey, Ms Howells is not in a position to cross-examine you at this stage. We'll require you to attend at 10 o'clock in the morning. I'm going to release you from your oath and be re-sworn tomorrow. You can discuss this matter with anyone you like during that time. You can go and have a party. Okay, thank you, you are released.
PN991
Is there anything we can do for the next 15 minutes, Ms Howells?
PN992
MS HOWELLS: Well, I'm happy to call my next witness, Commissioner. I can do the evidence-in-chief probably. I don't think we'll be all that long.
PN993
THE COMMISSIONER: Right, call your next witness. Who are you calling, Ms Howells?
MS HOWELLS: Mr Terrence Harmse.
<TERRENCE HARMSE, SWORN [3.48PM]
<EXAMINATION-IN-CHIEF BY MS HOWELLS
PN995
MS HOWELLS: Now, Mr Harmse, can you state your full name and address for the record please?---Terrence Harmse (address supplied).
PN996
And your occupation is a professional diver?---That's correct.
PN997
And you are currently employed working on the desalination project at Kurnell?
---Yes.
PN998
And for how long have you been employed working on that project?---Since the beginning. We came down last year, I think it was June, we did two weeks there, and since the end of September we've actually been on site.
PN999
Can I ask you first, you're aware that there's a collective agreement which is said to apply to your employment?---Yes.
PN1000
Can I ask you when the question of the agreement was first raised with you, can you remember?---It was early December.
PN1001
And how was it first raised with you?---We were just given a document.
PN1002
And who gave it to you?---I think it was Nicole to be honest, yes.
PN1003
You were given a copy of an agreement?---Yes.
PN1004
And were you also given a document known as an information statement?---Yes.
PN1005
Might I approach, Commissioner?
PN1006
THE COMMISSIONER: Yes.
PN1007
MR MCARDLE: Can I say something with the witness out of the room? It might shorten proceedings.
PN1008
THE COMMISSIONER: It might shorten the proceedings?
Would you leave the room for a moment? You're under oath.
<THE WITNESS WITHDREW [3.51PM]
PN1010
MR MCARDLE: Commissioner, we've had an indication from the Bench that you're not going to set aside the agreement. Is there anything to be gained for these proceedings of my friend attacking the agreement?
PN1011
THE COMMISSIONER: Well, she can attack what she likes. I'm not going to have an appeal against me on the basis that I inhibited her case, Mr McArdle.
PN1012
MR MCARDLE: In one respect, and I must say I don't say this disrespectfully, it's merely an observation, your functus on whether or not the agreement is to be cancelled you said you're not going to, and my friend is continuing to produce evidence in support of what you've said you're not going to do.
PN1013
THE COMMISSIONER: That's for her to bring up, for me to listen to. But I've got my mind made up, Mr McArdle. I'm a very hard person to shift once I've made my mind up.
PN1014
MR MCARDLE: Yes, your Honour. Well, that was all I wanted to say, Commissioner, that's all I wanted to say.
PN1015
THE COMMISSIONER: Can someone ask the witness to come back in please.
PN1016
MS HOWELLS: I should just say, Commissioner, while that's going on, we're not asking the Commission to set aside an agreement at all, but we are inviting for the Commission to draw a view as to whether the agreement's valid and applies to these employees. It's a different question altogether.
PN1017
MR MCARDLE: Well, it's exactly the same.
PN1018
MS HOWELLS: It's a completely different question, whether the Commission can set aside an agreement as to whether it validly applies to particular employees.
PN1019
MR MCARDLE: Well, my submission will be very strongly that this
tribunal - - -
PN1020
THE COMMISSIONER: I'm sure you'll address me on that in your final submissions.
PN1021
MR MCARDLE: So I see no distinction between what's - - -
PN1022
THE COMMISSIONER: Well, I think there is a distinction, a very slim distinction, but I think there is a distinction. But I will not be setting aside the agreement. I don't believe I've got the power to set it aside anyhow.
PN1023
MR MCARDLE: Nor, if I may observe, but if I may submit, Commissioner, have you any power to decide about whether or not it's been validly - - -
PN1024
THE COMMISSIONER: That may be so too. Should I decide whether it has been invalidly concluded I'm sure that will be a good appeal point to you.
PN1025
MR MCARDLE: Yes, all right.
PN1026
THE COMMISSIONER: It will get you some more money, Mr McArdle.
PN1027
MR MCARDLE: I've already got too much.
PN1028
THE COMMISSIONER: I thought so. Bring the witness in.
MS HOWELLS: Maybe you can give some of that to the divers.
<TERRENCE HARMSE, ON FORMER OATH [3.53PM]
<EXAMINATION-IN-CHIEF BY MS HOWELLS, CONTINUING
PN1030
THE COMMISSIONER: You're still under oath. Ms Howells is going to show you a document.
PN1031
MS HOWELLS: ..... it's a document headed Information Statement for Employees. Now, you will see on page 5 there's some handwriting?---Yes.
PN1032
There's a date of 3.12.07?---Yes.
PN1033
And there's the name of an employer being Construction Diving Services Pty Ltd?
---Yes.
PN1034
And then there's the words "Employees were asked to nominate one person to sign on their behalf. Glen Edwards was duly nominated." Do you see that?---Yes, I do.
PN1035
Now, first of all, did you get a document that appeared to be in this form?---Yes.
PN1036
Leaving aside the handwriting?---Yes. Yes, I did.
PN1037
Are you able to say whether the copy of this document that you received had any handwriting on it?---No, it didn't.
PN1038
Just taking you to what's written in this box here, employees were asked one person to sign on their behalf, et cetera, were you ever asked to nominate a person to sign for you?---No, I wasn't, no.
PN1039
And to your knowledge was Glen Edwards ever nominated to represent the other employees in any respect?---No.
PN1040
THE COMMISSIONER: Did you sign the document, you personally?---The agreement?
PN1041
Yes?---Yes, I did.
PN1042
MS HOWELLS: Now, you were given a copy of an agreement and the documents headed Information Statement for Employees sometime in early December?---Yes, early December.
**** TERRENCE HARMSE XN MS HOWELLS
PN1043
MR MCARDLE: Commissioner, I don't believe you have the original documents. We're holding them to photocopy them.
PN1044
MS HOWELLS: May I have a minute, Commissioner?
PN1045
THE COMMISSIONER: Yes.
PN1046
MS HOWELLS: Perhaps you could have a look at that please. That's a copy of an agreement with the title Construction Diving Services Pty Ltd Blue Water Employee Collective Workplace Agreement?---Yes.
PN1047
Now, the second last page has your signature on it, is that right?---Yes, it has, yes.
PN1048
And there's a witness but there's no signature for the company on that?---No.
PN1049
Are you able to say whether that document was a document that you had in front of you - - -?---It does look like the same document, yes.
PN1050
I see, yes. So you've signed that on 13 December?---That's right, yes.
PN1051
Now, tell me this. Are you able to say whether that document which you signed is the same document which you were provided with some days earlier in December?---Yes, it looks like the same document.
PN1052
Yes. You were given a new copy on 13 December, is that right?---Yes.
PN1053
And it has the name of the employer, Construction Diving Services Pty Ltd?
---Yes.
PN1054
Now, do you remember anything about the document you were provided with earlier as to who was named as the employer on the earlier version?---I do recall seeing a document that had Dempsey Family Trust nominated as the employer.
PN1055
Yes. Do you remember the context in which you saw that document?---It was the same kind of agreement, yes, just - - -
PN1056
Was that document given to you at some point?---Yes, it was given to us but I didn't keep it, I don't have a copy of it, no.
**** TERRENCE HARMSE XN MS HOWELLS
PN1057
Do you know when the document with Dempsey named in it was given to you?
---That was the first one I saw at the beginning of December.
PN1058
I see. And when was the first time you saw this document with Construction Diving Services' name on it?---That was on the 13th when I actually signed the document.
PN1059
I see. Prior to the 13th did anyone ask you whether you agreed with the signing of the document or not or whether you agreed that a collective agreement should apply to your employment?---Yes. The initial one we got there was a dispute over the living away from home allowance which we weren't getting, and an issue was raised on the supervisor's wage as well. The hourly rate was - I had been doing a supervisor's position as well and I wasn't being paid that rate that was quoted in the document. That was raised with Brian in a meeting, and then he said he'd have a chat with Barry, who was in Singapore at the time. A day later he came back to us and said Barry had agreed to pay the living away from home allowance and would back pay us in that as well.
PN1060
Now, can you remember when that discussion was approximately?---That was probably about a week before we signed the agreement on the 13th.
PN1061
Can you tell me what happened on the 13th, how the agreement came to be signed?---We were just given the document. I reported into Nicole's office and just asked to sign the document.
PN1062
Who asked you can you remember?---I think Nicole.
PN1063
And what was said to you?---Well, she just said, well, there's the agreement, please could you sign it.
PN1064
I'm sorry?---She just said there's the agreement and it needs to be signed.
PN1065
Did it occur to you that you had any choice as to whether to sign it or not?---?
---Yes, I don't think there was much choice really. I mean, it was - I mean, it says a collective agreement. There was no collective
agreement, nothing done collectively. We just - we were given a document. We didn't sit around a table and actually discuss it.
PN1066
Now, moving on from the agreements. You work as a diver at Kurnell?---No, not at Kurnell .....
**** TERRENCE HARMSE XN MS HOWELLS
PN1067
Sorry, okay. Basically your job is to go out on a barge and dive down for preliminary work on the desalination plant?---That's correct, yes.
PN1068
And how big are the barges you go out on?---They probably measure about 20 metres by 15 metres I think roughly, yes.
PN1069
And there are two barges now in operation?---That's correct, yes.
PN1070
And how far out do they generally go from the coastline?---About 300 metres off the coastline at Kurnell.
PN1071
And how deep are you diving generally?---Twenty eight, 29 metres maximum depth.
PN1072
And each barge is pulled by one tug boat?---That's correct, yes.
PN1073
And that's the way they get in and out?---Yes.
PN1074
And generally speaking how many crew and divers would be on board the barge at any one time?---We have had the whole complement of divers which is 15 out from the barge and probably got about five crew on the barge as well, so that's about 20 which is maximum.
PN1075
Right. Now, just by way of overview in your line of the work that you're doing, what are the major hassles that you have to contend with that are dangerous?---It's a pretty dangerous job. You're working in a hostile environment, so yes. Strong currents, the barge if it's rough conditions as well, the swell if there's strong winds, you know what I mean, do you want more information?
PN1076
What kind of risks does that give rise to in terms of - - -?---Yes, it's only happened with one of the divers just to try and get him over the situation to try and to evacuate them or get them back onto the barge, it's a huge problem trying to get them back onto the barge in those conditions.
PN1077
I see. You've mentioned evacuation. Now, it would be true to say that evacuation issues have been a concern with the divers over time?---Yes, it's been a concern for quite a while now.
PN1078
Yes. Now, to your knowledge is there any emergency procedure which sets out what steps should be followed to evacuate the injured worker?---There is no procedure.
**** TERRENCE HARMSE XN MS HOWELLS
PN1079
So as far as what steps should be taken how do you know what you should do in that circumstance?---Yes, I think if it happens we just have to play it by ear and figure something out at the time. There is just no procedure in place, there's no framework, there's no dedicated system to actually use.
PN1080
Has anyone suggested to you that you should call a helicopter to remove .....?
---We've discussed a couple of scenarios ourselves, and I know that one supervisor actually had a contact at Westpac Helicopters
and he's phoned them. But you aren't allowed to actually call them directly. There's procedures and they deal to the lifeguards,
so if there's not a lifeguard kind of scenario they won't come out.
PN1081
And certainly it's not been suggested to you by management that that's a step you should take?---No.
PN1082
So dealing with the evacuation step by step, it's possible obviously that a worker, a diver can be injured whilst diving?---Yes. Yes, definitely.
PN1083
And he then has to be brought to the surface?---Yes.
PN1084
And that would be the job of what?---The standby diver would actually be - we have a diver on standby so he's dressed and ready to go, the supervisor's in contact with the diver in the water. If something should happen to him the standby diver will go in the water and go rescue him, and then we have to get him out of the water and then depending on his injury or whatever's happened to him we try and evacuate him.
PN1085
Yes. And once the diver who is injured is on the surface you then have to get him onto the barge somehow?---Well, yes.
PN1086
Yes. And what is available to you presently or at least up until Monday morning to undertake that operation?---Nothing.
PN1087
So how would you get the diver up do you think?---We've run through a scenario, we've had some blokes and they do a training exercise, and that was done in the base, it wasn't really a true reflection of what's going to happen out on the job. And they put a bloke in the water and we actually hauled him up with a rope around the arm and hauled him onto - and it worked pretty well. But yes, there's no swell to contend with and no current or anything like that. So we would probably do something similar if we were in that situation. But yes, we haven't actually tried to do it in the rough conditions. It just doesn't make sense.
**** TERRENCE HARMSE XN MS HOWELLS
PN1088
And once you've got the diver onto the barge in present circumstances what's your understanding as to how he could be got back to land?---Yes, that's a bit of a contentious issue. There is no evacuation boat. The only boat that's available is the tug which is a problem, it's not really the right vessel.
PN1089
And why do you say that?---Yes, the conditions if you have a huge swell and the currents and stuff with a tug coming up alongside, even just transferring even from the tug backwards and forwards, you've had the issue of guys have been falling between the tug and the barge, and it's just useless. And to try and get a patient over on a stretcher or something like that is just going to be madness to do it. The tug itself isn't suitable either. It's got a wet deck so it's exposed to elements all the time. The water runs on and off the deck the whole time, so there's really no place to put the patient anyway.
PN1090
Now, as far as getting a diver onto the barge if they're injured in the water what's your understanding of what properly should be in place for that purpose?---There needs to be some kind of lifting device. They have put higher cranes on the barges, we assume for that purpose. On the one barge the hydraulics haven't been connected up, on the other barge LC20 which has only gone out three times, my understanding is that the higher actually is in operation.
PN1091
THE COMMISSIONER: Ms Howells, how long do you think you'll be?
PN1092
MS HOWELLS: A little while, Commissioner, probably another - - -
PN1093
THE COMMISSIONER: Perhaps you'd better resume tomorrow.
PN1094
MS HOWELLS: Thank you.
PN1095
THE COMMISSIONER: I'll excuse the witness from the witness box and I won't hold you under oath overnight, okay?---Thank you, Commissioner.
The witness is excused.
PN1097
THE COMMISSIONER: We'll resume at 10 o'clock in the morning. Tomorrow I intend to sit through until the matter is settled and I determine the matter. So if it's 7 o'clock it's 7 o'clock, okay?
PN1098
MS HOWELLS: Thank you, Commissioner.
PN1099
THE COMMISSIONER: Okay, the Commission stands adjourned.
<ADJOURNED UNTIL THURSDAY 6 MARCH 2008 [4.10PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
BRIAN FITZSIMONS, SWORN PN75
EXAMINATION-IN-CHIEF BY MR MCARDLE PN79
EXHIBIT #MC1 AFFIDAVIT OF BRIAN FITZSIMONS PN100
CROSS-EXAMINATION BY MR COLEMAN PN122
FURTHER EXAMINATION BY MR MCARDLE PN126
EXHIBIT #MC2 SIGNED AGREEMENT PN141
CROSS-EXAMINATION BY MS HOWELLS PN142
THE WITNESS WITHDREW PN352
BRIAN FITZSIMONS, RECALLED ON FORMER OATH PN361
THE WITNESS WITHDREW PN364
BRIAN FITZSIMONS, ON FORMER OATH PN396
CROSS-EXAMINATION BY MS HOWELLS, CONTINUING PN396
EXHIBIT #H1 BUNDLE OF THREE DOCUMENTS PN443
RE-EXAMINATION BY MR MCARDLE PN445
EXHIBIT #MC3 DOCUMENT LETTERHEAD OF CONSTRUCTION DIVING SERVICES PTY LTD PN463
THE WITNESS WITHDREW PN498
NICOLE DEMPSEY, SWORN PN502
EXAMINATION-IN-CHIEF BY MR MCARDLE PN502
EXHIBIT #MC4 CHAIN OF EMAILS PN520
EXHIBIT #MC5 CHAIN OF EMAILS WITH SCHEDULE PN530
THE WITNESS WITHDREW PN563
MARTIN LORING, AFFIRMED PN574
EXAMINATION-IN-CHIEF BY MS HOWELLS PN574
CROSS-EXAMINATION BY MR MCARDLE PN700
RE-EXAMINATION BY MS HOWELLS PN950
THE WITNESS WITHDREW PN980
TERRENCE HARMSE, SWORN PN994
EXAMINATION-IN-CHIEF BY MS HOWELLS PN994
THE WITNESS WITHDREW PN1009
TERRENCE HARMSE, ON FORMER OATH PN1029
THE WITNESS WITHDREW PN1096
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