RE2007/3071, Transcript of Proceedings [2008] AIRCTrans 311 (26 June 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18642-1

SENIOR DEPUTY PRESIDENT WATSON

RE2007/3071

s.770(2)(b) - Application for orders by Commission for abuse of system
Office of Australian Building and Construction Commissioner
and
Construction, Forestry, Mining and Energy Union
(RE2007/3071)

SYDNEY

10.04AM, MONDAY, 16 JUNE 2008

Continued from 14/4/2008

Hearing continuing

PN347

THE SENIOR DEPUTY PRESIDENT: Yes, there's no changes to appearance? No, very well. I understand there are four persons who are summonsed but only one is required, is that correct?

PN348

MR PEARCE: On our side?

PN349

THE SENIOR DEPUTY PRESIDENT: Yes.

PN350

MR PEARCE: Yes, your Honour. There's three statements that we're putting in.

PN351

THE SENIOR DEPUTY PRESIDENT: Yes.

PN352

MR PEARCE: And Mr Lane will be giving evidence. So that's our situation, yes.

PN353

THE SENIOR DEPUTY PRESIDENT: Yes, very well. All right. Well, will we lead off with you, Mr Coleman?

PN354

MR COLEMAN: Yes, your Honour. There is one preliminary matter, a housekeeping matter.

PN355

THE SENIOR DEPUTY PRESIDENT: Yes.

PN356

MR COLEMAN: About how the case is run, of course section 770 has two main parts, firstly whether there's abuse.

PN357

THE SENIOR DEPUTY PRESIDENT: Yes.

PN358

MR COLEMAN: And secondly what orders would flow from any findings of abuse. Mr Pearce contacted me last week in respect of how those two questions of approach and perhaps it might be better if I leave it to him to put the proposition to your Honour.

PN359

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN360

MR PEARCE: Your Honour, I notice in the last major case, the building construction, the ABCC case which could be called the Martino case as well, your Honour seems to have dealt with the question of the findings as to whether there was an abuse and the appropriate orders in the one set of hearings. In this set of hearings the Commission has made it clear that they are seeking an order revoking Mr Lane's right of entry if they're successful in getting some or all of the findings made against Mr Lane. In those circumstances I would have thought or we thought it would be appropriate to split the hearing.

PN361

In other words, your Honour should make the factual determinations and if there is then a question of a quasi nature of penalty, if I can use that term, to be dealt with that can be dealt with in due course because without necessarily anticipating that such a hearing would be necessary, if it was we'd obviously be wanting to produce some references and things like that in relation to Mr Lane and what we're suggesting is we split the hearing into a question as to whether there has been an abuse of the rights and then if so, a second question as to what orders the Commission ought to make in those circumstances.

PN362

THE SENIOR DEPUTY PRESIDENT: Yes.

PN363

MR PEARCE: And they would involve the exercise of discretion. Now, my learned friend and I are agreed that that's an appropriate course of action.

PN364

THE SENIOR DEPUTY PRESIDENT: There's some agreement on that course is there?

PN365

MR PEARCE: Yes. And I think the second part of the hearing would be a half day hearing of some sort.

PN366

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Well, I think in the third alternative, the McLauchlan matter evidence was brought during the hearing effectively of a reference nature in terms of Mr McLauchlan's broader activities within the building and construction industry on his behalf. Yes, very well. You're content with that course, Mr Coleman?

PN367

MR COLEMAN: Yes, we've agreed to that course, of course subject to your Honour's approval.

PN368

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Look, I won't interfere with the agreement of the parties. I think that's probably appropriate in the circumstances.

PN369

MR COLEMAN: The proposition that was put to me, your Honour, was that he would like to do something, assuming there are findings of abuse, he would like to do something in the nature of a plea. To just use the word penalty, of course it's not a penalty but there is certainly a wide discretion that the Commission holds in relation to what flows from the findings of abuse.

PN370

THE SENIOR DEPUTY PRESIDENT: Yes.

PN371

MR COLEMAN: And out of fairness my client accepts the proposition and is prepared to agree to submitting the case in that way.

PN372

THE SENIOR DEPUTY PRESIDENT: Very well. All right.

PN373

MR COLEMAN: Your Honour, I thought I might just briefly open the case.

PN374

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN375

MR COLEMAN: To a large extent the particulars of the abuse alleged is set out in the application. I don't think we need to go to that. There are two dates in question, 19 April 2007 and 16 May 2007. On both of those dates the respondent, Mr Lane, attended the site and the site is a construction site operated by Kell & Rigby Pty Ltd or a company in that group, at Bathurst in New South Wales. The building site is known as the Mount Panorama Resort and at that stage, that is, April and May 2007, the construction project was in its end stages in that it appears that from the evidence that was mainly tiling work going on, plastering and landscaping.

PN376

Now, on the first date, that is 19 April 2007, Kell & Rigby on site received by fax two days in advance a notice notifying - that is a notice from Mr Lane notifying that he would be on site and the fax made specific reference to entry under section 760. Your Honour would be aware that the right of entry provisions of the Act delineate or specify three bases on which there was a right of entry.

PN377

THE SENIOR DEPUTY PRESIDENT: Yes.

PN378

MR PEARCE: A right to investigate a breach of occupational health and safety rights and then thirdly, a right to entry and hold discussions, sometimes in a shorthand way referred to as the recruiting right of entry. That is the third, that is under 760 of the Act that the notice was given. 48 hours notice was given. Your Honour will see when the evidence is tendered that that faxed notice will be tendered but the actual date of entry blank. No issue was taken with that in that it was apparent to those on site that the entry was proposed for 19 April. The circumstances of that are that another union official, a Mr Duff from the plumbers union, if I could use the abbreviated term, faxed a similar notice at the same time and specifying entry on 19 April and the correct assumption was made by those on site that Mr Lane's intention was to do the same. So there's no technical involved in the absence involved in that date.

PN379

Now, the terms of the notice said to be advising of entry under section 760 to hold discussions is important because the evidence will show and it's alleged that it's abuse the entry was used for other purposes, a collateral purpose or an ulterior purpose. I have just mentioned that Mr Duff from another union came to site that day. He did come to site having notified it two days earlier. There's no application in respect of Mr Duff. The application in respect of that day is only in relation to Mr Lane. The evidence will show he entered the site at approximately 10 to 10.30 that morning. Having received the faxed notice the Kell & Rigby site manager put around a notice to employees advising them of the intended entry and putting up a notice that they may wish to meet with him.

PN380

The evidence will show that - and a venue for that was indicated. The evidence will show that no-one turned up and Mr Lane then, if I could use this word, parked himself near the toilets for some time and spoke to people going past. The evidence will show that most of those conversations were for a short period of time. One was somewhat longer and then he spent what's estimated to be about 15 minutes at the front gate, at or near the front gate, talking to a truck driver who was at that time making deliveries to the site.

PN381

It will be submitted that those conversations occurred during a non working time and also on that date and this is particularised in the application, Mr Lane, the respondent, was observed not wearing the type of very basic safety gear that is expected, that is, a hard hat and visibility vest, at least for some of the time that he was out on the site and expected to be wearing that type of gear. In relation to the evidence of the conversation with the truck driver the abuse alleged involves the fact a truck driver simply wouldn’t be eligible for membership of the CFMEU and therefore that is outside of the power granted by 760 and indeed it was also quite clearly outside of working - during working time and not during a break.

PN382

Now, during that visit on the morning of 19 April Mr Lane asked to see the site induction records and he was taken to the induction room which is a meeting room with tables and chairs and files and the evidence will show he spent some time in that room going through the induction records. The evidence shows that he was mainly interested in not the induction process itself but the identity of people working on site and with a particular reference to the identity of Asian workers. Now, the evidence will show that he left that room having spent some time in there by himself in a mess with the induction papers on the table, on the floor, binders left open.

PN383

Now, in respect of that series of events the abuse can be summarised as this, firstly, speaking with employees other than during meal times or other breaks, speaking with a delivery truck driver who could not be eligible for membership of the CFMEU. As I mentioned before, that was also clearly not during a break. A failure to observe very basic occupational health and safety requirements, leaving the induction shed and important documents owned by the company in a mess and just generally associated with that, a failure to demonstrate normal courtesy and civil behaviour. Finally and this is an important area in the applicant's case, having gained entry for a stated entrance and given notice of entry for that purpose, used the access gained for other purposes, apparently to investigate employment conditions and we suspect a possible investigation into a suspected breach of immigration law.

PN384

In the applicant's case the respondent had no power to do so and the use of the right of entry for the stated purposes in 760 for an ulterior purpose is in the applicant's case an abuse. The second visit was on 16 May, approximately a month later. On that day the respondent came with another CFMEU official by the name of Mr Lee. Both Mr Lee and Mr Lane, the respondent, had two days prior sent a fax to Kell & Rigby notifying of their proposed visit and again specifying section 760 as the purpose of the visit and relying on that to gain entry. The evidence will show that immediately on arrival the respondent made it clear that his concern was with employee entitlements and possibly in relation to immigration law matters and breaches thereof, but certainly specific reference to superannuation and workers compensation matters.

PN385

As I say, that was immediate on his arrival. After some discussion the site manager on advice, that is Mr Ned Mozzell, then on advice from his head office refused the respondent any further access to the company's records, certainly in the terms that they have been sought, and then refused the respondent any further access to the company's records, certainly in the terms that they have been sought, and then the respondent, together with Mr Lee, proceeded to go along with what they said was an occupational health and safety inspection. No suspected breaches were certainly communicated to the respondent prior to that walk being undertaken.

PN386

Now, on that walk it was the 7th level of the construction site building, the respondent it is evident spoke to workers who were engaged in work at the time and not on a break. Meanwhile the site manager had received advice, had made contact with the Master Builders Association, sought advice and obtained some advice from someone there in relation to the legal requirements of a union official upon entry. The site manager then armed with that advice went up to the 7th level where there was occurring, that is, these discussions with the tilers or people working for the tiling contractor and asked Mr Lane, the respondent expressly, to see his right of entry permit. It wasn't produced. There was some mention that it was in the car, in his car which was off the site but he wasn't going to produce it and following that the site manager then asked him to leave the site. He refused to comply with that request.

PN387

The site manager then called the police. The police came. There were discussions and after some time the two union officials including the respondent left. In relation to the second visit in summary the abuse involves the holding of discussions with employees other than during meal time or other breaks, a failure to show the permit when requested and following from that, the refusal to leave after he refused or failed to produce the permit or show the permit and then thirdly, in a similar way to the visit the night before it's submitted of abuse of powers of the Act to gain access for the purpose of holding discussion with the employees and then once entry is gained to seek to do things that are not authorised by section 760, or seek to do things in addition to that power.

PN388

That's a brief summary of the evidence, your Honour. The evidence in the applicant's case will be given by the site manager, Mr Ned Mozzell, spelt
M-o-z-z-e-l-l. Mr Mozzell was the site manager on both dates and the second witness in the applicant's case will be Mr Les Mozzell. He is Mr Ned Mozzell's brother and he was employed at the time and present on both times, employed by Kell & Rigby as a sub foreman according to his brother. A third witness will be Darren Fleming, also a foreman. Your Honour, when we filed the statements upon which the applicant intended to rely we filed a fourth statement of a
Mr Cook.

PN389

I've had discussions with Mr Pearce and the applicant will now not call Mr Cook and I think Mr Pearce is considering his options there as to whether that statement is tendered. In relation to the production of documents which was a main issue and has now since as I understand completely faded away after a misunderstanding was resolved. It came to Mr Pearce's attention that there were other statements that were prepared by the ABCC office as part of the investigation, several of those, but the applicant doesn't intend to rely on.
Mr Pearce has put a proposition to us to the effect that he wishes to tender those statements as part of his case and we have consented to that proposal and have agreed to not cross-examine those witnesses. But they will be part of the respondent's case but without any opposition from us.

PN390

The respondent has filed an outline of submissions and one issue that it raises clearly is the standing of the applicant to bring those proceedings. If I can deal with that first by way of evidence, your Honour, in the documents produced pursuant to the subpoena, or the order for these documents I should say - - -

PN391

MR PEARCE: Your Honour, we don't press that issue any more.

PN392

THE SENIOR DEPUTY PRESIDENT: Yes.

PN393

MR PEARCE: We can always put that issue ..... materials.

PN394

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN395

MR COLEMAN: That being the case, then I don't need to tender those documents. Is it appropriate to go into evidence?

PN396

THE SENIOR DEPUTY PRESIDENT: Very well.

PN397

MR COLEMAN: Our first witness will be the site manager, Mr Ned Mozzell.

PN398

THE SENIOR DEPUTY PRESIDENT: Yes, very well. We'll have Mr Mozzell called.

PN399

MR COLEMAN: There are three statements prepared as part of the investigation by Mr Mozzell and they will be relied on and that will essentially be the evidence-in-chief.

<EDMUND DAVID MOZZELL, AFFIRMED [10.25AM]
<EXAMINATION-IN-CHIEF BY MR COLEMAN

PN400

THE SENIOR DEPUTY PRESIDENT: Please take a seat, Mr Mozzell.
Mr Coleman, before you go any further I might mark the ABCCs outline of submissions.

EXHIBIT #ABCC1 OUTLINE OF SUBMISSIONS
EXHIBIT #CFMEU1 OUTLINE OF SUBMISSIONS OF
MR LANE

PN401

MR COLEMAN: Could you state your full name for the record?---Edmund David Mozzell.

PN402

And what's your address?---(Address supplied).

PN403

I am going to hand you three documents?---Yes.

PN404

Could you just have a look at those. Mr Mozzell, you will see that two of them are dated at the top in the heading 17 May 2007?---Yes.

PN405

The thicker one of those two, if you would look at that first?---Yes.

PN406

Does that document have 11 pages and is it headed up at the top page number 11, do you see that?---Yes.

PN407

THE SENIOR DEPUTY PRESIDENT: I'm sorry, what's the date on that one?

PN408

MR COLEMAN: It's dated the heading at the top 17 May 2007.

PN409

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN410

MR COLEMAN: And then there are a couple of annexures after the 11th page?
---Yes.

PN411

Would you turn to the second, the other document which has the 17 May on the heading?---Yes.

PN412

You can see that's a six page document?---Yes.

PN413

Now, you'll see on the front page at paragraph 4 it says and I ..... where the words in the supplementary statement relate to conversations I take you made this statement after the one that we've just referred to?---Yes, I did.

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN414

And you'll see that it's headed up 17 May, if you turn to that final page it's page 6 of 6, you'll see it bears a date under a place for you to sign of 24 May?---Yes.

PN415

Are you able to tell the Commission from memory what date this statement was prepared?---It was actually made on 24 May.

PN416

And then the third document has 19 June heading, do you have that?---Yes.

PN417

And that's a three page document with headings?---Yes.

PN418

A three page showing headings with some annexures?---Yes, yes.

PN419

Do you say the contents of those three statements are true and correct to the best of your knowledge and belief?---Yes.

PN420

THE SENIOR DEPUTY PRESIDENT: The third one was 19 June?

PN421

MR COLEMAN: Yes, your Honour.

PN422

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Would you like these marked?

PN423

MR COLEMAN: Yes.

PN424

MR PEARCE: Your Honour, there's some objections to some of the evidence in the statements and I've given them to my learned friend. I don't know if they reached you on the last occasion, if I could provide a schedule to your Honour.

PN425

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN426

MR PEARCE: I think in the schedule, your Honour, I've changed - yes,
Mr Mozzell's statements appear on page 2 and I've changed the reference to the
17 May, the first reference, to 24 May which I have just advised my learned friend so he knows what we're looking at.

PN427

THE SENIOR DEPUTY PRESIDENT: Yes. The objections go generally to hearsay, form opinion and relevance on some occasions. How do you want to deal with these, Mr Pearce?

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN428

MR PEARCE: Your Honour, I've just set out the grounds there and unless your Honour wants to hear me on them and my learned friend may have a few things to say, but I'm content to just rely on what I've put in the schedule there. If your Honour wants me to speak any further on them, otherwise I’m happy for your Honour to rule subject to what my learned friend will no doubt have something to say as well. He may want to concede some of them.

PN429

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Coleman, what's your position?

PN430

MR COLEMAN: Your Honour, could I make a few general observations in relation to the myriad of objections generally. As is clear from the statements that I seek to tender, the three statements and the other ones that have been filed in the proceedings on which we do intend to rely, these were statements taken by an investigator from the ABCC as part of an investigation following a complaint. When the matter comes up for hearing finally about a year later the position that has been taken in the applicant's case is to rely on the statements that were taken at the time as part of the investigation as being the best way to attempt to inform the Commission as to what happened. Now, because they were taken as part of an investigation and not specifically for the purposes of proceedings in the Commission or anywhere else they may contain bits of material that are not particularly relevant to the main issues. They may have some shorthand method of doing things but it's the best way to put the case because it's more or less contemporaneous, subject of course to - my learned friend's ..... to test the evidence. So that's the first observation. The second observation I make of course is to refer your Honour to section 109 and 10 of the Act which specifically exclude the rules of evidence and require the Commission to act in an informal way and to inform itself as the best way it sees fit. I'd ask your Honour to bear that highly and clearly in mind in making any rulings. And then when one goes to the individual objections and perhaps by way of example the very first one in the list of Mr Mozzell and that is 19 June 2007 statement.

PN431

THE SENIOR DEPUTY PRESIDENT: Paragraph 7.

PN432

MR COLEMAN: Paragraph 7, second sentence. It's objected to on the basis of hearsay. Well, the witness in saying he appeared to be talking to whoever was available is the witness's observations of what he saw the respondent doing. It would admissible in a court of law as an observation.

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN433

THE SENIOR DEPUTY PRESIDENT: I'm sorry, which paragraph is that?

PN434

MR COLEMAN: Well, I think the objection is the second sentence of paragraph 7 of the statement of 19 June 2007.

PN435

MR PEARCE: I think, your Honour, that's a typographical. It's opinion, isn't it, that I have objected to it as?

PN436

MR COLEMAN: Opinion?

PN437

MR PEARCE: Yes, not as hearsay.

PN438

MR COLEMAN: Thank you.

PN439

THE SENIOR DEPUTY PRESIDENT: Yes.

PN440

MR COLEMAN: Well, that makes it even less objectionable because even if the rules of evidence apply, under the Evidence Act, state and federal, any witness can give opinion evidence. There used to be common law rules that prevented that or put restrictions on it.

PN441

THE SENIOR DEPUTY PRESIDENT: Yes.

PN442

MR COLEMAN: Those restrictions have essentially evaporated since the enactment of the uniform evidence legislation. If I could take then the next perhaps by way of example, your Honour, and I don't intend unless you ask me to, to address every objection listed here but if we could perhaps go to the second one in paragraph 11 and the annexure.

PN443

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN444

MR COLEMAN: Mr Pearce says it's only the annexure and not the test of the ...... There in NM02, your Honour, as I understand it that's the handwritten note dated 16/05/07 at the top.

PN445

THE SENIOR DEPUTY PRESIDENT: Yes.

PN446

MR COLEMAN: That's the note that the witness says he took when he was on the phone seeking advice as to what the company's obligations and rights were.

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN447

THE SENIOR DEPUTY PRESIDENT: Yes.

PN448

MR COLEMAN: You'll see there the name of the person who he spoke to, his telephone number, there's a reference to a telephone number of someone else from the Australian Building Construction Commission as it's noted there and the note right of entry permit and the note what is in breach. Well, that's simply a note that the witness took at the time and it forms part of his evidence. You have the objection is hearsay. The witness isn't seeking to put into evidence what someone else has said. It's simply his notes at the time that in a way corroborate his evidence. There's no proper basis for objection. It's not even arguable in my submission.

PN449

THE SENIOR DEPUTY PRESIDENT: Yes.

PN450

MR COLEMAN: Then paragraph 12 again the objection is hearsay. Well - - -

PN451

THE SENIOR DEPUTY PRESIDENT: Well, it's a common position, isn't it? It's evidence of what was said to him, not evidence of the fact that the unions were in fact talking to tilers on level 7.

PN452

MR COLEMAN: Yes.

PN453

THE SENIOR DEPUTY PRESIDENT: That would be a matter for the other
Mr Mozzell's evidence.

PN454

MR COLEMAN: Yes, it's put in for that purpose. Mr Les Mozzell gives himself as to what was going on.

PN455

MR PEARCE: Yes, and that's the objection, your Honour. It's in that general at the front of the - it's not objected to as evidence of what was said. It's objected to as if it's the truth, if it's evidence of the truth because we all know these days if hearsay is admitted for one purpose it's admitted for all purposes unless the Commission or the court rules otherwise. So the objections as to hearsay are all objections - there's no objection as to the fact of someone giving evidence about what someone else said. It's whether in fact what they said was the truth.

PN456

THE SENIOR DEPUTY PRESIDENT: Yes.

PN457

MR PEARCE: That's a fairly standard sort of objection I must say and it seeks a ruling and in this case my learned friend says it's only tendered for the purpose of what was said so I presume there is now objection in the sense of a ruling being made.

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN458

THE SENIOR DEPUTY PRESIDENT: Yes.

PN459

MR PEARCE: That's how the hearsay objection should be understood.

PN460

THE SENIOR DEPUTY PRESIDENT: That's common throughout all the objections, Mr Pearce.

PN461

MR PEARCE: Yes, your Honour. All of the objections as to hearsay are objections that - well, take that example, the objection is that the court not accept as evidence of the fact that the unions are talking to the tilers on level 7 the fact that it was said. My learned friend understands the distinction and that's - - -

PN462

MR COLEMAN: Your Honour, I would never make a submission that that was evidence to establish the fact.

PN463

MR PEARCE: It's allowable under the Evidence Act now and once or twice I've had this submission made.

PN464

THE SENIOR DEPUTY PRESIDENT: Well, it can short circuit the process it would be my intention to rely on the evidence as direct evidence only to the extent that it discloses what was said to Mr Mozzell, not as to the truth of the matter in respect of all those hearsay matters. In respect to the opinion issues, well, plainly where evidence given is that of opinion it will be treated as such and that will go really to weight of that evidence. The other issues of relevance and form I'm not - well, there's another one of speculation perhaps we need to deal with as well. The relevance issues I think - sorry, form first arises in the second statement dated
17 May which was made on 24 May at paragraph 8, I wonder if you could elaborate on what's being said there in respect to form, Mr Pearce? It's the:

PN465

Due to operational requirements lunch times are staggered at different times -

PN466

is it?

PN467

MR PEARCE: No, I think it's the - sorry, which one is your Honour dealing with? Is your Honour dealing with - - -

PN468

THE SENIOR DEPUTY PRESIDENT: Paragraph 8, the fifth sentence, the form point.

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN469

MR PEARCE: Yes, sorry.

PN470

THE SENIOR DEPUTY PRESIDENT: It's hearsay opinion and form.

PN471

MR PEARCE: Yes, your Honour, I was looking at the wrong statement. Yes, your Honour, he's giving evidence of what was plainly what the idea was. Your Honour, it's not very important but he's giving evidence of what someone said to somebody else and it's not in - it can only be that. It's not in a form that's admissible. He doesn't say whose idea it was. That's the objection to that, your Honour. It's not very important I wouldn't have thought.

PN472

THE SENIOR DEPUTY PRESIDENT: Yes, and it's the sixth sentence in any case.

PN473

MR COLEMAN: But in any evidence, your Honour, the witness is giving evidence of why he did something.

PN474

THE SENIOR DEPUTY PRESIDENT: Yes.

PN475

MR PEARCE: Well, he may be. It's why somebody else did something as well, your Honour, that's the point, one or the other.

PN476

THE SENIOR DEPUTY PRESIDENT: Well, perhaps that could be easily dealt with if you could Mr Coleman whose idea it was to find out who wanted to attend the meeting. Well, I think it's fairly clear -

PN477

So I could plan an appropriate time and place.

PN478

So Mr Mozzell was seeking to find out who would attend so that he could plan the time and place. I'll certainly admit that sentence. The next issue that is of relevance is in paragraph 12 of the same statement.

PN479

MR PEARCE: Your Honour, can I suggest you deal with the relevance objections by just admitting them subject to relevance?

PN480

THE SENIOR DEPUTY PRESIDENT: Yes, very well, I will do that and - - -

PN481

MR COLEMAN: If I could make submissions on that at the end?

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN482

THE SENIOR DEPUTY PRESIDENT: Very well and I'll admit the statements as a whole subject to the objections made and obviously the intention to exclude hearsay in the sense that purports to give evidence of the truth of what others have said to Mr Mozzell, weight as to matters of opinion and speculation and all the evidence obviously will be subject to weight having regard to the objections made. Very well.

EXHIBIT #ABCC2A STATEMENT OF MR EDMUND DAVID MOZZELL, DATED 17/05/2007 WITH ATTACHMENT
EXHIBIT #ABCC2B STATEMENT OF MR EDMUND DAVID MOZZELL, DATED 17/5/2007 BUT MADE ON 24/05/2007
EXHIBIT #ABCC2C STATEMENT OF MR EDMUND DAVID MOZZELL BUT DESCRIBED AS NED MOZZELL

PN483

THE SENIOR DEPUTY PRESIDENT: I'm presuming, Mr Mozzell, that you're Edmund David otherwise known as Ned and there's not a third brother?---No.

PN484

MR COLEMAN: Your Honour, this witness particularly in the first statement, that's ABCC2A, makes reference to some other documents which are found with the material filed for the purposes of evidence and I think it's appropriate that I tender those documents to this witness.

PN485

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN486

MR COLEMAN: Would you turn to the first statement and that's the one that was made on 17 May 2007 of 11 pages and would you turn over to paragraph 10 on the second page, do you see there that you make reference to receiving a fax?
---Yes.

PN487

Your Honour, in my bundle of filed material it's the last page.

PN488

THE SENIOR DEPUTY PRESIDENT: The very last page?

PN489

MR COLEMAN: That's of the filed material. I'm sorry, I think it was all in one binder. The filed material is towards the front followed by the subpoenaed material, if I could use that - - -

PN490

THE SENIOR DEPUTY PRESIDENT: I see, the last of the - - -

PN491

MR COLEMAN: The last page I think of the filed material.

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN492

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, and that's two pages, a cover sheet and the substantive sheet?

PN493

MR COLEMAN: Yes, your Honour.

PN494

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

EXHIBIT #ABCC3 FACSIMILE DATED 17/04/2007

PN495

MR COLEMAN: Secondly, your Honour, in paragraph 11 of that first statement, we've dealt with the subject matter I think in relation to one of the objections that was dealt with. There's reference to a flier and that is in the bundle filed and it's a one page document with just two lines of writing on it.

PN496

THE SENIOR DEPUTY PRESIDENT: Yes.

PN497

MR COLEMAN: On the letter Kell & Rigby facsimile message.

PN498

THE SENIOR DEPUTY PRESIDENT: Dated 18 April?

PN499

MR COLEMAN: Yes.

PN500

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN501

MR COLEMAN: And that's the document referred to in paragraph 11. I tender that.

EXHIBIT #ABCC4 KELL & RIGBY NOTICE FROM MANAGEMENT TO ALL, DATED 18/04/2007

PN502

MR COLEMAN: Thirdly, in paragraph 20 of that first statement there's reference a fax in relation to the entry on 16 May. That's found in the documents.

PN503

THE SENIOR DEPUTY PRESIDENT: Yes, that's three pages is it on the cover sheet entry notice of Mr Lane and entry notice in respect to Mr Lee?

PN504

MR COLEMAN: We only tender the ones in relation to Mr Lane.

PN505

THE SENIOR DEPUTY PRESIDENT: Mr Lane, okay, so it's two - - -

PN506

MR COLEMAN: A fax cover sheet followed by the entry notice.

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN507

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

EXHIBIT #ABCC5 FAX CONTAINING THE COVER SHEET AND ENTRY NOTICE IN RESPECT OF MR LANE, DATED 14/05/2007 IN RESPECT TO AN ENTRY ON 15/05/2007

PN508

MR COLEMAN: Thank you, your Honour. Fourthly, there's then a reference in paragraph 21 to a flier organised in relation to - or sent around in relation to that notice and that entry and that is found in the bundle. It's headed up CFMEU site visit and I have a blank table.

PN509

THE SENIOR DEPUTY PRESIDENT: Sorry, that's in the same group of documents?

PN510

MR COLEMAN: Yes, your Honour.

PN511

THE SENIOR DEPUTY PRESIDENT: I don't seem to have that one.

PN512

MR COLEMAN: It looks like that, a one page document.

PN513

THE SENIOR DEPUTY PRESIDENT: Yes, sorry, I do have that one.

EXHIBIT #ABCC6 DOCUMENT HEADED CFMEU SITE VISIT, NOTICE WITH A TABLE FOR PERSONS WISHING TO PARTICIPATE

PN514

MR COLEMAN: And then finally in the tender in the applicant's case, in paragraph 29 of the same statement there's reference to what the union refer to as section 127 notices and there were two documents of a similar nature on CFMEU letterhead.

PN515

THE SENIOR DEPUTY PRESIDENT: Yes, both dated the 16th of the 5th?

PN516

MR COLEMAN: Yes, and one of them has Classic Tiling written in handwriting about a third of the way down and the one has Cosmont Interiors.

PN517

THE SENIOR DEPUTY PRESIDENT: Yes.

PN518

MR COLEMAN: I tender those.

EXHIBIT #ABCC7 TWO NOTICES PURSUANT TO SECTION 127, DATED 16/05/2007

**** EDMUND DAVID MOZZELL XN MR COLEMAN
PN519

MR COLEMAN: Your Honour, the applicant simply relies on the statements in evidence-in-chief. That's Mr Mozzell's evidence.

PN520

THE SENIOR DEPUTY PRESIDENT: Yes, very well, thank you, Mr Coleman. Mr Pearce.

<CROSS-EXAMINATION BY MR PEARCE [10.52AM]

PN521

MR PEARCE: Thank you, your Honour.

PN522

Mr Mozzell, on 17 May 2007 your statement was taken by a Mark Lanigan O'Keefe, is that correct?---Yes.

PN523

And can you tell me how the statement was taken?---In our meeting room on site.

PN524

And what happened?---It was just a meeting inside in the meeting room.
Mr Lanigan O'Keefe sat me down and asked me the events of what happened on the day and I just told him what happened and he just took the notes down and then came back and made me read it and I signed it.

PN525

So did you tell him everything that happened on that day in relation to you and
Mr Lane?---I don't think everything. I think a few things came back later on that I forgot to speak about but most of the things I did I think.

PN526

You've told him everything that happened on 19 April, is that right?---Yes, yes.

PN527

Are you sure of that?---The things that happened on 19 April, the site visit with En Won Lee?

PN528

No, no, the 19 April was the first site visit by Mr Lane?---Yes.

PN529

Are you sure you told him everything that happened and everything - - - ?---No, no, not everything that happened. No, because it was such - it was before the inspection I was more talking about that day that the first interview with Mark Lanigan O'Keefe was actually what happened on the previous days with himself and En Won Lee there.

PN530

Now, on 24 May against you spoke to Mr Mark Lanigan O'Keefe?---Yes.

PN531

And gave him the statement?---Yes.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN532

Now, correct me if I’m wrong but both of those statements deal with events that occurred on 19 April and 16 May, didn't they?---Yes.

PN533

And finally you gave a statement to a Mr Chris Grant and that was on 19 June, wasn't it?---Yes.

PN534

Now, I just want to come back and ask you this question again, when you spoke to Mr Lanigan O'Keefe did you tell him everything that happened between you and Mr Lane on 19 April?---No.

PN535

Why is that?---It was more I only brushed over the events that happened with the first visit with Mick Lane because the first visit was great. There was no hassles with the first visit until after he left and then firstly with that first visit I was speaking to Mr Lanigan O'Keefe was more events that happened a couple of days prior.

PN536

I see. So there were things that happened on - - -

PN537

THE SENIOR DEPUTY PRESIDENT: A couple of days prior to what?---To the - well, when Mick Lane and En Won Lee were there on site.

PN538

Couple of days prior to 16 May?

PN539

MR PEARCE: 17 May?---The 17th, yes.

PN540

THE SENIOR DEPUTY PRESIDENT: Okay.

PN541

MR PEARCE: Sorry I did ask you and we got a bit distracted, why didn't you tell Mr Lanigan O'Keefe everything that happened for instance on 19 April? I think you said because it was great, is that right?---Yes, there was no hassles.

PN542

No hassles. But you did tell him some things that happened on 19 April, didn't you?---Yes.

PN543

Now, can I ask you this, Mr Lanigan O'Keefe is a friend of yours, isn't he?---He is now.

PN544

Was he a friend at that time?---No, I've never met him before in my life.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN545

I see. But how did he come to be a friend of yours now?---Because he works with Kell & Rigby.

PN546

I see. Now, can I take you to the events of 16 April and can I put some things to you that don't necessarily appear in your statement but I suggested happened on that day when Mr Lane was on site?---Yes.

PN547

Can I suggest that he came onto the site just before smoko?---Yes.

PN548

And what time was smoko?---Smoko varied through the day. It could start - because some people started at 6 o'clock so they might have had a smoko at 8 o'clock. So really rule of thumb in the building game smoko is about 9 o'clock but some were before and some were after.

PN549

All right. So we're talking here when I use the term smoko, we're talking about 9 o'clock, is that right, yes?---Well, like I said, it would vary during the day on site.

PN550

Can I suggest to you that the first that happened when he came on site was that he had a copy of coffee with you?---Yes.

PN551

And then he sat down and had a chat with you, is that right?---He introduced himself. I don't know, I can't remember about the chat.

PN552

Well, can I suggest that he had a chat with you about subbies, Cosmont?---No, that was after.

PN553

Classic Tiles?---That was after. That was after he - when he first came to site he come and introduced himself to me because I was busy during the day. I introduced myself. He sat down and he made himself a cup of coffee and everything else and then he went out and actually I got my brother to go with him to take him to - we had another site shed that was an induction room. We had files on inductions and everything else and he went through some of the folders and things like that with Les and then he came back and spoke to me.

PN554

Can I just be clear, I am suggesting to you that you had a conversation with him in the office before he went and looked at the induction records?---No.

PN555

And you spoke about Cosmont, Classic Tiles and - - - ?---No, no.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN556

Are you sure of that?---I'm dead sure of that.

PN557

Okay. Now, when Mr Lane came onto the site on 19 April you never asked for a right of entry?---No.

PN558

To see his right of entry?---No.

PN559

And he never showed it to you, you said you didn't know - - - ?---I didn't even know they existed at the time.

PN560

Yes. Now, were you responsible overall for safety, occupational health and safety on that site?---Being the site manager, yes.

PN561

And in particular were you familiar with various aspects of occupational health and safety legislation that governed construction sites?---Some, yes.

PN562

I wonder, my instructing solicitor has gathered together some extracts of relevant legislation, I wonder if I could provide one to my learned friend and one to your Honour. I'm not proposing to have this marked, it's just for convenience and if I could provide one to Mr Mozzell as well.

PN563

Now, you'll see that the first part of the extract is extracts from the Occupational Health and Safety Regulations?---Yes.

PN564

And they relate to the construction industry, do you understand that?---Yes.

PN565

And you'll see that regulations in the summary 224 to 229 deal with safe work method statements?---Yes.

PN566

What did you understand the law to be in relation to safe work method statements at 19 April 2007?---Prior - - -

PN567

MR COLEMAN: I object, your Honour. There's one issue in this case and that's the conduct of the respondent on those two dates all combined into one issue. The site manager or the person day and his knowledge of sections of regulations and Acts of Parliament in relation to occupational health and safety is totally irrelevant to the issues in the case in my submission and we could spend hours quizzing this man on his knowledge of black letter law and it's just simply not addressing the issues.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN568

THE SENIOR DEPUTY PRESIDENT: Yes.

PN569

MR PEARCE: Your Honour, we won't be spending hours but it's part of our case that these subject matters broadly featured in the discussion with Mr Lane and this witness and so they form part of the introductory manner in which I intend to approach the cross-examination.

PN570

THE SENIOR DEPUTY PRESIDENT: The discussion, is that what you're alluding to?

PN571

MR PEARCE: Yes, your Honour.

PN572

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Coleman.

PN573

MR COLEMAN: Your Honour, that raises a secondary question and supports the objection. There were directions made for the parties to file and serve on each other evidence upon which they wish to rely and indeed there is a statement of the respondent that addresses certain matters, nothing in relation to the events of the two days in question as I read it and now it seems that my learned friend is putting to the applicant's first witness a version of events and this is all preliminary to that apparently, of conversations and things that were said on that day when it's apparent that material has been filed in the respondent's case on that question. So there's a secondary issue but my primary objection is on the basis of relevance.

PN574

THE SENIOR DEPUTY PRESIDENT: Yes.

PN575

MR COLEMAN: Perhaps the secondary issue comes up if and when the respondent seeks to give evidence. But it appears that that's going to arise and it goes to the relevance of the questions that are now being asked of this witness, or that appears to be asked of him.

PN576

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I will allow the questioning in terms of establishing the context of cross-examination as to what did occur on the day.

PN577

MR PEARCE: Thank you, your Honour.

PN578

The first parts of that extract deal with safe working method statements and you're broadly familiar with what the regulations require in relation to safe working method statements?---Yes.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN579

For instance, you accept that they require you as the principal contractor to ensure that each subcontractor before commencing work provided the principal contractor with a safe work method statement?---Yes.

PN580

A written safe work method statement. And you're aware that the regulations provide how those safe working method statements have to be prepared and what has to be contained in them?---Yes.

PN581

And that they can be complex documents or they can be relatively simple documents, can't they?---Yes.

PN582

And you're also aware that not only is it the responsibility of the principal contractor but it's also the responsibility of a subcontractor not to commence construction work unless he's prepared a safe working method statement, is that so?---That's true, yes.

PN583

And that's in respect of his employees?---Yes.

PN584

Now, you're also aware of the regulations as they relate to green cards?---Yes.

PN585

What is a green card?---It's actually it's a day course that they've got to set within the construction industry to ensure just to let them know how to conduct themselves on safety and everything else so they've actually got a card from the WorkCover to say that they've done the induction course and we go from there on site.

PN586

And all persons working in the construction industry should have a green card?
---They've got to have one. They've got to have one.

PN587

Just a matter of curiosity, you had to have a green card too, didn't you?---Yes.

PN588

And you're aware that under the regulations a principal contractor can't allow persons to work on a construction project unless the principal contractor is satisfied that the person has undergone OH&S induction training?---Yes.

PN589

And part of that training is the person must have a green card?---Yes.

PN590

And then also the other part of that training to paragraph it is there must be site specific induction training?---That's true.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN591

And typically what would be covered in site specific induction training?---It will tell you like where the toilets are, where the lunch sheds are. It will tell you where there's, on the day of induction, if there's sites on the site that are dangerous, you've got to wear a hard hat, you've got to wear safety books, how to get site, where to park your car. It's virtually everything on how - so that if you're unfamiliar with the site, how to get site, how to get out of your car to the place that you've got to go to and be safe while you're there.

PN592

And finally, you're aware, are you not, that the regulations require the principal contractor to keep a copy of a relevant statement of OH&S training or a statement indicating that the principal contractor is satisfied that that training has been undertaken in respect of each person who works on a construction site?---Yes.

PN593

And that must also contain a brief description of a site specific training that has been given to that person?---Yes.

PN594

And I don't know if you're aware of this, but can I suggest to you that that has to be kept for a period of three years after the completion of the program?---Yes.

PN595

You are aware of that?---Yes.

PN596

Now, can I suggest to you that in relation to the Mount Panorama site there were difficulties, you as a principal contractor had difficulties in complying with the OH&S regulations on that site?---No.

PN597

Are you sure of that?---Yes.

PN598

Can I suggest to you for instance that there are occasions when green cards weren't sighted before people worked on the site?---Never.

PN599

I see. And can I suggest to you that there were some people who filled in forms on the site and that were not the valid green card entries?---The only trouble we had with the green card was that someone tried to come in with the same name. It was picked up within our paperwork and he was not allowed on site.

PN600

Can I suggest to you that there were some persons gave you numbers for green cards that were invalid and that they weren't sighted?---You can't get on site unless you actually visually see the card.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN601

And you take a photocopy, don't you?---Yes.

PN602

Yes. Or you should anyway?---Yes, we take a photocopy.

PN603

And you deny that there are any difficulties in relation to compliance with those matters on that Mount Panorama site, is that what you're saying?---No, except the only issue that we had was that someone came on the site and tried to produce the same name card as had already been with someone else so we brought in - taken a copy of the photo licence so we could actually say that person was that person on the card.

PN604

And are you sure that was done on all occasions?---The photocopy of the licence or the - - -

PN605

Photocopy of the card to start with?---While I was there it was, yes.

PN606

But you didn't actually do the inductions, did you?---No, no, I didn't. But that was the part of the thing and we had internal people come out and external people come out checking out paperwork all the time to make sure it was kept up to date and it was just a thing that was happening on site.

PN607

Okay. And you know of course that there was another problem on the site, there were people who were working on the site who were unlawful non persons?
---Yes.

PN608

Or who were ultimately detained my migration?---Yes.

PN609

And when did that happen?---I think that was - I can't remember now. It was prior to - it was after the 19th.

PN610

Can I suggest to you it was on 29 May?---Yes.

PN611

The site was raided by immigration?---No, they were - - -

PN612

If I can use the vernacular?---I wouldn't say it was raided. They actually rang me. They came up on site and seen me. They were going to go and go through the building and I said no, just wait until they come down to the lunch shed and you'll get them all in one lunch shed and you won't have to have people running around and making the site unsafe by jumping off bloody whatever if that was the case.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN613

Can I suggest to you that an observation was made that on that day there were people running up Conrad Straight in all directions?---No.

PN614

Are you sure of that?---I'm dead sure of that.

PN615

All right?---Because that's why I made them come down and talk to them in the lunch sheds. I didn't know if they were legal or not illegal but if that was the case that they were it would have been unsafe.

PN616

And you know that five people were detained?---Yes.

PN617

And of course unlawful non persons can't get green cards, can they?---No, no, but there's no photo on the green card so you don't know if that person is actually who they say. That's why we started taking the photograph of the licences so we could say that that person was actually that person.

PN618

I see?---And that's the thing that you don't really have to do. It was just the next thing that we took.

PN619

All right. Now, can I just focus specifically on 19 April and can I put some things to you that I suggest to you occurred on that day. I've said to you that on his arrival Mr Lane went to the site office and he spoke to you?---Yes.

PN620

And you had a cup of coffee?---Yes, I remember him having a cup of coffee but I invite everyone in to have a cup of coffee.

PN621

You sat behind the desk and he sat in front of you and when he asked for documentation to be produced you organised an office person to do some photocopying?---Yes, yes.

PN622

And that occurred at this time?---Yes.

PN623

While he was sitting in your office?---No.

PN624

Can I suggest to you that he had a conversation with you while he was sitting in your office - - -

PN625

MR COLEMAN: Your Honour, I hesitate to interrupt the question but I apprehend my learned friend is actually talking about April. He did just say May.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN626

MR PEARCE: May, sorry. I apologise if I said May. Quite appropriate, yes, I apologise. My learned friend suggested in fairness, what I'm suggesting to you is that on 19 April he had a cup of coffee in your office with you?---Yes.

PN627

And you had a chat?---Yes, it wasn't - like I said before, he came in, introduced himself to me. He had a cup of coffee. He didn't actually sit down and talk to me until after he had a look at all the documents because I was busy during the day so that's why Les went out and went to the induction and went through the stuff and I said to him just whatever he wants, what he needs just go through with them. I didn't have the time to do.

PN628

Well, can I suggest to you that in that conversation he asked you who had the contracts for the work?---Yes.

PN629

And he asked for the copies of the company's workers compensation certificates of currency?---I don't recall. I don't think he did. Like I said, he only - if he said anything it would have been after he had a look at all the documentations. There was nothing really said prior to that. He just came in and he wanted to have a look at the safe work method statements and stuff like that and I just said yes, it's fine, go with Les, Les will do that and that was about it there.

PN630

Now, you keep saying that that was the sequence of events but I think in fairness I should show you a statement of Mr Fleming on this matter, which I understand my learned friend will be relying. Can I just ask you to have a look at paragraph 9 and 10 of Mr Fleming's statement, do you see there that Mr Fleming says and he's referring to this conversation before Mr Lane goes to the induction area?---Yes.

PN631

He could hear you talking about subbies such as Cosmont, Classic Tiles and Adelphos?---Yes.

PN632

I'm not asking you to comment on Mr Fleming's recollection one way or the other but does that assist you to think that may be you were wrong that there was a conversation before he went to the induction shed?---No, no, no, not at all.

PN633

Okay. Can I have that back, thanks. Now, I think I was suggesting to you that
Mr Lane in this conversation before he went to the induction shed on 19 April he asked you for copies of the company's workers compensation certificate of currency?---He could do, I can't remember.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN634

And he asked you for induction records?---Yes.

PN635

And he asked you for contact details for the principals of the companies that were subcontracting?---I can't remember. I really can't remember anything on that.

PN636

And can I suggest to you that you instructed one of the office staff to give him copies of the certificate of currency in the site induction register?---Yes, yes, I would have done, yes.

PN637

And there were four copies, there were four companies that came to attention. One was Cosmont Interiors, is that right?---For what purpose?

PN638

In this conversation there were four companies that came to attention, one was Cosmont Interiors?---Yes, they were only after he had a look at all the - he went through all the induction forms and so forth, went to the - - -

PN639

I'm suggesting to you this happened before?---No, it didn't.

PN640

All right. I want you to understand this is the suggestion I'm making to you for you to comment on?---Yes, that's fine.

PN641

And then he spoke to you about a company called Aldephos, or Aldephos Pty Ltd came to your attention?---Yes.

PN642

Now, Cosmont Interiors, they gyp rockers or plasterers, weren't they?---Yes.

PN643

Aldephos was a painting contractor?---Yes.

PN644

Then there was a company that came to your attention was Classic Tiling?---Yes.

PN645

Now, all the time I'm suggesting to you that these were things that were spoken about at the meeting before he went to the - - - ?---No, all - there was nothing talked about subbies until after he had a look at all the induction forms that was up in the shed.

PN646

And can I suggest to you the fourth company that came to attention in this discussion before he went to the induction shed was SF Manufacturing?---No. If that's case, if you're talking about prior to him to have a look at all the documents, there was no-one talked about.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN647

Then Classic Tiling was obviously doing tiling work on the site, is that right?
---Yes.

PN648

And what was SF Manufacturing doing?---They were doing the balustrades and the glass, like the glass balustrades at the front of the building. So they were virtually, yes, doing all the balustrades.

PN649

Can I suggest to you that in this conversation while you were having the cup of coffee and thereafter Mr Lane said to you that he noticed that there are Asian workers on the site?---I don't recall. He mentioned - well, they were the ones that he went for after he came back from having a look at all the documents was all the people that were Asian were the ones that he brought up. He didn't bring up any other subcontractor that we had working on the whole site. It was only the Asians that he picked out.

PN650

All right. Now, I'm suggesting to you that all of these things happened before he went to the - - - ?---No, nothing, no.

PN651

Can I suggest to you that your answers that are coming back to me are suggesting that the conversation was had but it was had at a different time, is that correct?
---Yes, it happened after he had a look at all the documentations.

PN652

All right. So I'll keep making my suggestions but I'll ask you two questions as we go, okay. Now, can I suggest to you that after the cup of coffee in the first part you told him that they were Chinese and Korean and that most of them couldn't speak English?---Some of them couldn't, no.

PN653

Can I suggest to you that you told him that in the first conversation?---No, that I recall. You think that - the way I'm understanding is I feel like that I'm sat down and I've had a long conversation with Mick in the first instance. I didn't. Mick come in and virtually said, "Here, I’m Mick Lane and here's my card".

PN654

That's what I'm suggesting?---No.

PN655

That's what I'm suggesting to you?---No, it didn't happen. He virtually gave me a card. I virtually said have a cup of coffee and I was too busy to do that at that time.

PN656

And I pointed out that Darren Fleming seems to give the same evidence as well?
---That we talked - - -

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN657

That you had a conversation before he went to - - - ?---He came into the office. If you see it on site we had glass partition. It was actually like a little office, you come into the office, speak to me and then that's it. I don't think that - it's a pretty big office that we had on site. I don't think he really would have heard much what I had to say to Mick at all.

PN658

All right. Can I suggest - well, perhaps in that first conversation you said to him most of them cannot speak English?---No, I don't think I did.

PN659

Did you say that to him in a later conversation that day?---I probably could have, yes.

PN660

Yes, okay. And he said to you that he said, "Well, I can't talk to these workers if they don't speak English", Mick Lane said that to you at that time?---I think that came up right towards the end because that was when Mick was outside and trying to talk to people that were coming down for smoko and just couldn't get any sense. Like I know the same thing we had to go through interpreters on a couple of them who the foreman were to talk to them.

PN661

So you say that he said that to you in a conversation after he came back from the induction room, do you?---I don't recall it. I don't think he did. I just knew that he was having trouble. You could see him standing out there trying to talk to people and people didn't have a clue. They were just nodding their head and saying yes.

PN662

Can I suggest that Mick Lane also said to you in this first conversation, "How are the site inductions carried out if these people cannot speak English", he asked?
---Interpreter.

PN663

But did he ask you that question?---No.

PN664

I see. Did he ever ask you that question on the night of - - - ?---No, he has asked me but I don't think it was then. I'm sure it wasn't then. I said that day I didn't spend much time with Mick at all. I got someone else to go with Mick and I didn't spend much time with Mick at all on that day.

PN665

And can I suggest that you advised him that the site inductions are carried out by one or two of my employees with the aid of someone interpreting?---Their company?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN666

Yes?---Yes, their foreman.

PN667

Yes?---They had to have an English speaking person that could say in case he was doing something wrong or something that wasn't safe we could go to the foreman and say this bloke's not doing it right.

PN668

And you definitely told Mr Lane that on 19 April, we just have a disagreement about when you told him that, is that right?---On the 19th?

PN669

Yes, the first time he came there?---No.

PN670

I see. And he raised something you with about the workers inability to read and understanding signage in English on the site, Mr Lane, did you have a conversation about that at that time?---No, we had signs that were in Chinese. We actually had our CA was Chinese and he could write and speak Chinese so we actually had signs not only in English on site, we had them in Chinese and Korean.

PN671

And you told him the main language spoken was Korean?---No.

PN672

You didn't tell him that?---No. I would have said Chinese. I didn't even know they were Korean on site until later on.

PN673

And he said he'd like to come back and talk to the workers with someone who could speak their language?---No, that never happened.

PN674

I see. And you told him that he could do this subject to his availability?---The only time we found out that he was bringing someone so he could help them speak was with the letter that they sent through to say that En Won was coming and that was the reason why he was there and that was actually on the day Mick actually said this is why he was here, so that he could understand - talk to a few people that could speak - you know, and he could speak their language.

PN675

Well, can I suggest to you that he said he would come back with someone who spoke the language?---No, he never, no.

PN676

You deny that. And you said, "Well, come any time"?---Yes, I said to him he could come any time.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN677

And that was your attitude as far as Mr Mick Lane was concerned, that he could come any time?---Well, at that stage, yes. It was only after he left that we found that, you know, the way that everything was left that all the documentations were just spread on the bloody shed and everything else, you know. We tried to help him out and he didn't help us out at all.

PN678

Can I suggest to you that after he looked at the documentation he raised, on
19 April, he raised some things with you about specific companies, do you recall that?---With the companies?

PN679

Yes, after he looked at the documentation?---Yes, he did.

PN680

He raised some things with you about specific companies?---Yes.

PN681

He raised that Cosmont Interior has claimed five workers on their workers compensation of a wage cost of $100,000 which translated as $20,000 per year wages which was very low and that also on the induction records there were 12 workers listed as Cosmont employees?---He brought all that up on the 17th when he came out with En Won.

PN682

You're saying this all occurred on the 17th?---Yes.

PN683

Are you sure you're not confused about this?---No, I'm dead sure.

PN684

I see. And he told you that he suspected - I'm still talking about 19 April. He told you he suspected the insurance premium was being paid too low, that was being paid by Cosmont was too low?---No, I think that all came up on the 17th. That was all spoken about on the 17th.

PN685

THE SENIOR DEPUTY PRESIDENT: 17th?---Of May when Mick Lane and En Won came out.

PN686

It was 16 May that he returned?

PN687

MR PEARCE: 16th?---16 May, sorry.

PN688

THE SENIOR DEPUTY PRESIDENT: Yes.

PN689

MR PEARCE: And can I suggest to you that Mr Lane said to you on 19 April, "You know that under New South Wales compensation laws the principal contractor can be held liable for underpayment of workers compensation premiums"?---When was this, sorry?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN690

On 19 April?---19 April? I can't recall. I can't recall him - like I said, I didn't speak to Mick much at all on that 19th.

PN691

Can I suggest that you did, that he warned you about the fact that the principal contractor could be liable for underpayment for workers compensation premiums?---No. I don't recall it, no.

PN692

You don't recall it. Well, do you recall it, do you assert he didn't say it or you just don't recall it?---Well, I just don't recall him - I don't recall him talking to me that much. He came in and spoke to Les more than what he did to me so I think he might have mistaken what he said to me and what he said to Les.

PN693

I see. Can I suggest that you agreed with him that there was a discrepancy in relation to the Cosmont Interior documentation?---On that day?

PN694

Yes?---No.

PN695

And can I suggest that on 19 April Mr Lane also identified similar concerns in relation to other contractors and he asked you to follow this up and ensure that the subcontractors are paying their correct workers compensation premiums?---On that day?

PN696

Yes?---No. Who were they?

PN697

I believe that they were Cosmont Interior?---The four that you brought up before?

PN698

Yes, the four that I - - - ?---No.

PN699

Aldephos, Classic Tiling?---No. The only thing that I knew that he was looking at those was after he left Les came in, Les and Ben Spinks came in and said that they were things that they were missing. They were missing a couple of documents that they had when they tried to put it all together, they were out of those four. We just gathered that, you know, they'd been lost or misplaced and we were still trying to find them because there was just stuff everywhere. Everything had been pulled out of folders and everything else.

PN700

Can I suggest that he discussed Aldephos Painting with you on 19 April?---No, he didn't speak to me that much. He really didn't. He came in and introduced himself to me and then went out with Les. I can't even recall him coming in and saying goodbye. He came in once when they were doing some photocopying and that was about it.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN701

I see. And in relation to Aldephos he said there was a discrepancy between the number of employees on the certificate of currency compared to the number of inducted employees on the site?---On 16 May he did, yes.

PN702

Can I suggest to you he said to you on 19 April?---No, he didn't.

PN703

Okay. And he said he had a suspicion that the workers with those companies, Aldephos and Cosmont and Classic Tiling were probably not receiving any superannuation?---On the 19th?

PN704

Yes?---Never said it.

PN705

And can I suggest that while he was in your presence he rang Cbus Superannuation Compliance?---In my presence?

PN706

Yes?---No, he never did that, not in my presence on 19 April he never, no.

PN707

But he told you that he was told that Cosmont had only paid superannuation for two workers some months ago?---Sorry? Can you repeat that question, please?

PN708

He told you that after ringing the Cbus Superannuation Compliance Line that he had been told by them that Cosmont had only paid superannuation for two workers some time ago?---No, that come in a conversation way later. That was - the only thing that he ever brought with Cbus was actually after he'd taken the documentations and stuff and he rang me up and because he - after he gave me the section 127s for Classic Tiling and Cosmont he rang me back and said that they'd been all okay, you know, that they owed Bus and they owed a bit of this and a bit of that. So we actually once we got the 127s we stopped them and we weren't paying them any more until this had all sorted out and we actually looked into the matter as well.

PN709

Yes. And can I suggest to you that you looked into the matter after he raised it with you on 19 April?---Of course we did. He gave us the 127, we had to make sure that everything was fine. We've got a - when they actually come up for payment they sign a stat dec saying that all their employees have been paid, the workers comp's been done, superannuation's been paid so.

PN710

And you're saying these matters came up when he gave you the 127s on 16 May, is that right?---Yes, well, that's when he brought it to our attention that they weren't getting what he thought was the superannuation.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN711

And can I suggest that he checked the superannuation compliance?---I don't know what he done.

PN712

For Classic Tiling?---I don't know what he done.

PN713

And he told you that he'd been told only three workers had received superannuation payments in February 2007?---By who? It wasn't by me.

PN714

No, he told you that only three workers had been - sorry, that Classic Tiling had only made contributions for Cbus for three workers payments in February 2007?
---On the 16th he brought that all to me.

PN715

And he said that on the induction records there were 22 Classic Tiles employees on site?---Yes. I don't know if they were subcontractors. There was some for Classic Tiling. Actually I think all the people that were there for Classic Tiling were subcontractors.

PN716

Can I suggest to you that you then after the discussion with Cosmont Interiors, you rang a person named Bead Ishingerro, I-s-h-i-n-g-e-r-r-o?---Bead, yes.

PN717

And can I suggest that that occurred on 19 April?---No, never.

PN718

And you queried him as to why the workers compensation information was so low for Cosmont?---No, that all happened on the 16th.

PN719

And you told Mr Lane that all of the 22 Classic Tiling employees who were on site were not employees of Classic Tiling but were employed as individual subcontractors - - - ?---That what's I gathered. That's what I've been told, yes.

PN720

That's what Mr Bead Ishingerro told you?---No, no, he's not a tiler, he's a plasterer. Bead was the chap from Cosmont. Classic tiling is her dad.

PN721

I see, right. So that was what he dad told you, was it, that they were all subcontractors?---Yes.

PN722

Okay?---Because they work for a - I can't remember his name, but he worked for someone else because when I had issues of getting things done on site I'd have to ring Pierre, Hadad and Pierre would have to ring the subcontractor.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN723

And can I suggest to you that whoever you spoke to at Classic Tiling told you that the subcontractors were employed by two other entities known as Crown Tiling - sorry, were contracted by two other entities known as Crown Tiling and Perfect Tiling?---No, I've never heard of them before.

PN724

You've never heard of them before?---No.

PN725

And you deny that that was what you were told and you passed that on to
Mr Lane?---No, I've never heard of those names before. I've only ever dealt with Classic Tiling. I've never dealt with any other tiling.

PN726

Can I suggest to you that you told him at that time that you had no knowledge of this subcontracting arrangement?---No, I knew of the subcontracting arrangement.

PN727

No, but you had no knowledge that - I've suggested to you that Classic Tiling was subcontracting it on to other entities?---I knew that they were bring subcontract tilers in to do the work, yes.

PN728

You did know that, did you?---Yes.

PN729

When did you know that?---When I first arrived on site.

PN730

I see. So at all times that Classic Tiling - - - ?---I met Pierre - - -

PN731

The person who worked there were not employees?---Yes, I met Pierre probably the first or second week that I started on the job and I just wanted to know what was going on. He actually said, you know, that - or his workers were actually done by their foreman, another foreman from Dong Ki and it was for another person who was subcontracting.

PN732

So at all times you knew that he was telling you that Classic Tiling had no employees on the site, is that right?---Well, they're under Classic Tiling's employeeship. Like they're subcontractors, they are working for Classic Tiling so everything has to be done underneath them.

PN733

Let's be clear about this, at all times you knew that the people that Classic Tiling had put on the site were not employees of Classic Tiling, is that so?---As employees as in that they're working under their - well, they're still working under their banner so they're working for Classic Tiling though.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN734

No, I'm asking you because you know the distinction between an employee and a subcontractor, don't you?---Yes, I do. I do.

PN735

And at all times you're saying to me that you knew they were subcontractors from Classic Tiling?---Yes.

PN736

And not employees?---Yes, subcontractors of Classic Tiling, yes.

PN737

I see. And so it didn't trouble you that constantly on forms, your formal induction people that these people were described as employees of Classic Tiling?---They've got to go underneath Classic Tiling. Classic Tiling are employing them, or their firm to come in and do their work.

PN738

I'm just asking you did it trouble you that on all your forms - - - ?---Why should it?

PN739

- - - they're shown as employees of Classic Tiling and not as subcontractors?
---No.

PN740

Isn't that misleading?---Why?

PN741

Because they're not employees?---But we already knew. They weren't misleading me saying they're my employees. We knew that they were subcontractors. The form that we have, you put them underneath the person that they're doing the work for and they've got to sign Classic Tiling safe work methods statement so that they come in and they sign underneath their safe work methods statement.

PN742

Can I suggest to you that a form that described them as employees was misleading in its content?

PN743

MR COLEMAN: Your Honour, we're getting to asking the witness to form legal conclusions. He can give evidence of his understanding of this circulation but it's not conclusion of what the actual reality was or the way the law would view it and which is a complex legal question.

PN744

THE SENIOR DEPUTY PRESIDENT: Yes, I think there's a limit to how far we can test his knowledge of - - -

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN745

MR PEARCE: Your Honour, I'll rephrase the question.

PN746

THE SENIOR DEPUTY PRESIDENT: Yes.

PN747

MR PEARCE: You knew, did you not, that on all of the official occupational health and safety documentation about induction persons working for Classic Tiles were describing themselves - on that site were describing themselves as employees, didn't you?---Yes, that's the way that I was told to do it within Kell & Rigby's program of how they do the OH&S, that any subcontractors, even if they're working for someone need to sign the safe work methods statement of that person carrying the work out so they didn't have to have their own. They have to supply their safe work methods statement to Classic Tiling say and then they still have to sign Classic Tiling's safe work methods statement.

PN748

You were told that it was all right to describe them as employees on the
official - - - ?---On the form.

PN749

On the forms required to be kept under the regulations?---Well, I think you'll find that even in some of the forms they actually ask if some of them are subcontractors.

PN750

Well, can you concentrate on my question, are you suggesting that you were told that it was all right to describe subcontractors as employees?---Yes, yes.

PN751

On these forms?---Well, on the form it didn't have a thing there to say sign underneath the subcontractors. It just had employees, there's a table and you just got them to sign the safe work methods statement.

PN752

I appreciate that. But you were told that that was all right to do that?---Yes.

PN753

Who told you to do that?---Well, people on site at the time, the CA, the project manager.

PN754

Sorry, the CA, who is the CA?---Howie Lynn.

PN755

And who was the project manager?---Mick Upson.

PN756

And he told you that it was okay to - - - ?---Well, they were the forms that Kell & Rigby used.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN757

I see. Now, you know that the process whereby a subcontractor then subcontracts is often referred to as pyramid subcontracting, isn't it?---Yes.

PN758

And so you had a situation on that site where you had pyramid contracting going on?---Well, we had, yes, contractors that were subcontracting, yes.

PN759

Now, can I suggest also on 19 April that Mr Lane said to you he was going to forward information to the Department of Immigration to check out some of the workers legal status?---Not to my knowledge, no.

PN760

I see. And he told you he'd been in touch with them in the past and they'd requested his assistance from time to time?---Who was this with, sorry?

PN761

Mr Lane?---No, to my knowledge, no.

PN762

I see. But can I suggest that overall that day it was quite a congenial friendly discussion that you had with Mr Lane?---On 19 April?

PN763

Yes?---Yes.

PN764

And that the concerns he raised with you about the question of the illegal or perhaps illegal workers on the site was a matter that you were concerned about?
---After he brought it up I actually looked into it a little bit so that was as far as it sort of went. I rang the police and asked actually how do I find out if they're illegal or not and they couldn't help me. They just gave me a number to ring the immigration and I was left on bloody hold for about three quarters of an hour so I left.

PN765

Now, on that day Mr Lane was given a large number of photocopies, wasn't he?
---He could have. I wasn't there. You'd have to ask Les.

PN766

I see. So you don't know that he was given a large number of photocopies - - - ?
---I don't know what he'd photocopied. I know that I just said to go with him and give him whatever he needed to. I was told later on that he took some photocopies. You see him in there. He was in there with the photocopier around with Les and stuff but that's all I know. I don't really know what he took or what he was doing.

PN767

But you had no problem with him taking the photocopies?---Photocopies, no. It was the original stuff that I was a bit upset about.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN768

Just correct me if I’m wrong, the photocopier was operated, as far as you know, by Les Mozzell, not by Mr Lane, wasn't it, during the day?---Yes, it could have been. I'm not too sure.

PN769

Can I just show you some documents that Mr Lane left the site with on 19 April. Now, can I just ask you to turn over the first page, that's a site induction register for Adelphos?---Yes.

PN770

Have you seen that before?---Yes.

PN771

Was it a fact that the person under induction number 5 subsequently was detained by the Department of Immigration?---I've got no records on how you can tell that they're not and they are.

PN772

I'm sorry, was a person by that name - - - ?---I wouldn't have a clue. I can't remember.

PN773

You can't remember?---No.

PN774

All right. Can I ask you to turn over, but all in all there seems to have been - it's unclear as to why this part of it has been whited out but Adelphos seems to have had at least 20 personnel on the site, is that right, from that induction register?
---Yes.

PN775

And particularly in the period from October through to November they seemed to have had at least five or six people on the site at any given time?---See, I never arrived to the site until February or March 2007 so I can't really comment on anything that happened prior to then.

PN776

I see. Well, have you ever looked at the records for prior to March 2007?---Yes, I had a look at the records but I don't go into each one of them. There was a lot of people on site.

PN777

I see. Anyway, can I suggest to you that it looks like that they've had about 20 persons connected with Adelphos on site over a period of time?---Okay.

PN778

Do you accept that, it's your record?---Well, yes, yes.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN779

Then can I ask you to go two over and look at Classic Tiling and can I suggest to you that they seem to have had about 22 people on site?---Yes.

PN780

Over a period of time and certainly two heavy levels of concentration, one in September, October, November and then again in January and February?---Yes, just for instance, those ones where it says Joint Sealers were also a subcontractor.

PN781

Who were they subcontracting to?---It's a special field. It's like if I'm going to bring a crane in or someone wants to bring a crane in and bring gear up they're going to have, you know, rely on a crane driver and they mightn't have a crane so that's virtually like subcontracting the crane driver to come in and do it. This is what they were doing, Classic Tiling. They were getting other subcontractors in to do specialised work which was joint sealing.

PN782

But if they were put on the Classic Tiling induction - - - ?---Of course because they were working underneath Classic Tiling.

PN783

I see?---Classic Tiling brought them in so they had to go underneath their banner.

PN784

And then can I ask you to go over the page to Cosmont Interiors?---Yes.

PN785

And you'll see that over a period of time they had 18 persons connected with them on site?---Yes.

PN786

Can I suggest to you that person number 3 and person number 6 were amongst those detained by immigration on 29 May?---I couldn't tell you.

PN787

You couldn't tell me. And can I suggest to you that the notation on the bottom right hand side, 12 on site, 19/4/07?---Yes.

PN788

Is a notation made by Mr Lane but can I suggest to you that there were 12 persons on site on 19 April?---There were at the time, yes.

PN789

Now, can I ask you to go over the page and that's a certificate of currency which was given in respect of Classic Tiling. Can you see that notwithstanding that they had 22 persons connected with them on site that they only had workers compensation insurance for four?---Yes.

PN790

And this was something that was pointed out to you by Mr Lane, wasn't it, as being suspicious, to put it mildly?---But Classic Tiling probably only got four employees and the rest would have been subcontractors.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN791

No, well, can you answer my question, this was something that was pointed out to you by Mr Lane as being suspicious, to put it mildly?---On 19 April?

PN792

Yes?---No.

PN793

Can I suggest to you that - well, do you say that he pointed it out to you
on - - - ?---Yes, on 16 May.

PN794

On 16 May he pointed this out to you?---Yes.

PN795

I see. When you look at that certificate of currency you would have seen many certificates of currency in your time, wouldn't you?---Yes.

PN796

Can I ask you to have a look at the note under note 1, you'll see GIO or G10 as we sometimes call them, specifically urged you to compare the number of employees on site to the average number of employees estimated at above and the wages estimated to be paid are reasonable to cover the larger component of the work that's performed?---That's why we actually asked for stat dec.

PN797

They were specifically, if I can use the term, they were specifically injuncting you when you got this certificate to make that comparison in your own situation, weren't they?---Yes, well, to me they were subcontractors.

PN798

I see. Did it ring an alarm bell with you?---No, well, after the 16 May and Mick brought this up I actually - I rung them and Pierre just said that that's all he had in the office. They were the people he had in his office and all the rest of the work was subcontracted out.

PN799

Yes?---Because even I had a meeting in CFMEU office later on where Pierre was there with the subcontractor and the money was trying to get through or something with the subcontractor getting it off Pierre. So I know that they were subcontractors.

PN800

Yes. You were at a meeting with the CFMEU where the CFMEU were asking Pierre to pay - - - ?---This is way after.

PN801

Later on, yes?---This is after I left the - - -

PN802

Yes, to pay the superannuation and those matters, weren't you?---Well, that was only came out - no, it wasn't. It was a bill that he had to pay his subbie.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN803

Well, the CFMEU were asserting, were they not, that these people were really employees, weren't they?---Well, why did they ring me? The CFMEU rang me and said it's okay for him to start work.

PN804

I see?---That was prior to that so why did they tell me he's okay to start back at work?

PN805

Sorry, was Classic Tiling suspended from the site?---No, they weren't suspended. We weren't going to pay any more of their claims until we actually looked in to see if all this was okay and above board, all their super. I got a phone call from Mick Lane saying that they were okay, Cosmont and Classic.

PN806

Sorry, when did you stop paying them?---As soon as - - -

PN807

It was just after - - - ?---As soon as the section 127 from the CFMEU came through. We just couldn't get it and just put it in the back of the drawer and think no, don't worry about it. We looked into it and we said, well, that's something to bring up, we'll have a look and see if there's anything. Like we're not out just to be nasty, like we're trying to help too.

PN808

And so your evidence is that these matters were in fact raised by Mr Lane on
16 May?---Yes.

PN809

And after that, I've used the term suspension, but after that Kell & Rigby stopped paying Classic Tiling?---I sent a notice through to my PM to say that we should stop until we find out. The CFMEU asked me to get them off site and I asked my PM and he said no, keep them working and just we looked into it and I rung Pierre Hadad and Bead to find out what was going on and they had to, you know, bring me some evidence to show that, you know, they were paying everyone properly.

PN810

But their payments were suspended, weren't they, from Kell & Rigby?---Yes, until they actually brought some evidence - - -

PN811

And then you attended a meeting where it was clear to you that CFMEU were urging that these people should be paid - - - ?---With who?

PN812

Were urging with Classic Tiling - - - ?---No, that wasn't about super though.

PN813

What was it about?---It was about Pierre Hadad not paying his subbies. So the subcontractor that was doing the tiling wasn't getting paid so - which had nothing to do with us because I wasn't paying the subcontractors, I was paying Classic Tiling, and he just - yes, that was what the meeting was about.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN814

Yes, that was in relation to Classic Tiling. Were the meetings in relation to Cosmont as well along the same lines?---No, no.

PN815

Did Cosmont get suspended from the site or - - -?---The two people that were - because of the sections 127 were Pierre Hadad for Classic Tiling and Cosmont and we just suspended - like we put a hold on their payment until they actually gave us evidence to say that they were up to date with all the things that were brought up on the 127.

PN816

And the things that were brought up on the 127, there's no reference to particular matters is there on that? Would you like to have a look at that?---

PN817

The subcontract company have not engaged, is not paying employees their full entitlements.

PN818

So that was the things that we looked into.

PN819

That included things like superannuation?---Yes.

PN820

Can I have that back? So you're not suggesting that superannuation wasn't paid?
---The thing was we were still looking into it. Mick Lane actually came back and said that they were okay to go.

PN821

When was that?---That was after.

PN822

How long after?---I'm not sure.

PN823

Was it a significant period?---I can't remember. I can't remember. It was a couple of weeks.

PN824

A couple of weeks. 29 May he was back on the site, wasn't he?---Yes.

PN825

And you had no problems with him on that day either, did you?---No, I hardly seen him at all.

PN826

And can I ask you to go over again and have a look at the certificate of currency for Cosmont Interiors, it's got a fax number page 4 in the top right hand corner although it's not actually page 4?---Which one, sorry?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN827

Do you see that one?---No, which one are you talking about?

PN828

Cosmont Interiors. It's - - - ?---A certificate of currency?

PN829

Yes, a certificate of currency?---Yes.

PN830

About six pages in?---Yes.

PN831

Again they had at tab 21 personnel on the site and they had workers compensation insurance in respect of five?---Okay.

PN832

And can I suggest to you that Mr Lane suggested that was pretty suspicious too?
---He only brought all this up on 16 May.

PN833

Now, Mr Mozzell, do you know about deemed workers under workers compensation legislation?---No, I don't.

PN834

Can you have a look at note 4 on that document, are you suggesting that you've never read that note on a certificate of currency?---I have. I've browsed over it but I’m not right into what they're saying there, no.

PN835

Well, doesn't it say that -

PN836

Where deemed workers are engaged the full amount of the contract payments are included on the total estimate of wages.

PN837

Do you see that?---Yes.

PN838

And then it says:

PN839

The Act extends the definition of workers to persons not generally considered to be employees. These for example include subcontractors.

PN840

Have you never had a need to examine this question about deemed employees in the context of being a site manager?---We have a stat dec that they fill out every month and that virtually says that all their subcontractors and all their employees are being paid properly and that was it. That's all I know. That's how I feel that they're being done properly.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN841

You relied on the stat decs?---Yes.

PN842

Can I ask you to go through, turn over three more pages and you'll come to a site induction form?---Yes.

PN843

And that's for Shi, S-h-i J-i-e- Yan. Do you see firstly that it describes his employer as Cosmont, doesn't it?---Yes.

PN844

And I take it from your evidence that his employer wasn't Cosmont?---No, it could have been. It might have been someone else who's he's own - he could have been subcontracting for.

PN845

So first of all he wasn't an employee of Cosmont, is that correct?---Yes.

PN846

He wasn't even a subcontractor of Cosmont, was he?---I don't know.

PN847

I see?---I don't know this bloke.

PN848

So you don't know one way or the other where he was one of the pyramid subcontractors or a subcontractor of Cosmont?---No, I don't.

PN849

Is that correct?---No.

PN850

Can you see under the part, record industry induction number, that's where the green card should be recorded, isn't it?---Induction number?

PN851

Yes?---No.

PN852

Please supply evidence of completion of industry induction for - - -

PN853

?---Sorry, down there. Sorry, I was looking for somewhere else. Yes, it should be.

PN854

There's absolutely no evidence on that document that Mr Shi Jie Yan had a green card or produced it - - - ?---I don't know. This bloke could have been here before I got there. I know that while I was there no-one started work unless we visually seen a copy of their green card and the photo licence. So that bloke could have done that afterwards. So who is, Cosmont?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN855

That's right. He seems to have started in November 2006?---So he started in 06.

PN856

I see. So whatever happened beforehand wasn't your problem, is that right?
---Well, how could it be?

PN857

All right. But can I suggest to you that this is one of the things that Mr Lane pointed out to you that there were site induction forms where there was no evidence that a green card had been sighted?---Prior to me there could have been but I know after I was there - - -

PN858

Can I suggest he pointed that out to you on 19 April?---You can suggest it but I don't think so.

PN859

Do you say that he pointed it out to you on 16 May?---16 May.

PN860

I see. I mean that's pretty serious, isn't it?---What?

PN861

A person working on a site without a green card?---But it could have been on another document.

PN862

I see?---There's more than just that one document when you do an induction. There's actually another one too.

PN863

Yes?---I don't know if you've got them in here. I can't see them in here.

PN864

I see. Then can I just ask you to pass over the page to there's a Len Chen and again the employer's described as Cosmont and on your evidence the employer wasn't Cosmont, was it?---I don't know. It's prior to me starting there. I don't know who that bloke is.

PN865

I see. And similarly if you've just turned through P19, again the employer is Cosmont but on your understanding of the situation Cosmont wasn't the employer, is that right?

PN866

MR COLEMAN: I object to these questions. A few minutes ago my learned friend was putting questions to the witness about deemed employment and now he's picking arguments or putting propositions to the witness about the use of a word on a form that contradicts his own knowledge of the situation in the industry.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN867

MR PEARCE: The witness is answering them, your Honour, without any difficulty.

PN868

THE SENIOR DEPUTY PRESIDENT: Yes, I propose to allow you to proceed, Mr Pearce.

PN869

MR PEARCE: And then can you go over to P20, again there's no record of a green card there, is there?---When did he start?

PN870

I don't know. This is serious again, isn't it?---With the documents that you've got in front of me, unless I had my documents sitting in front of me I can't really tell you. I can't answer these questions that you're giving me because they're only the things that are in an induction. This form is only one page of about 10.

PN871

Can I suggest to you that the absence of records of green cards and you'll see it again on the next two documents, P21 and P19, were matters that were raised with you by Mr Lane on 19 April?---But that's what I'm saying, this is not the only form that we put down their induction number.

PN872

I'm not asking you to defend it. I'm suggesting that these were matters that were raised with you by Mr Lane on 19 April, is that right?---No, he didn't go through all this, no.

PN873

I see. And your evidence is that he went through it on 16 May, is that right?
---Yes. He didn't go through anything with me on April.

PN874

I see. Can I ask you to go about six pages or so on until you come to induction number P3?---P3, well, you've asked me questions about someone that was before I got there so I can't comment on it.

PN875

Well, can I suggest to you that the - do you see P3 there?---Yes.

PN876

That the number given for green card is just not a valid number, you'd know that, wouldn’t you?---I can't comment. It's done prior to me being there.

PN877

Well, you know that's not a valid number for a green card?---When I was on site people could not start unless they had a card. We photocopied that card and all the induction forms. To me you've just picked out stuff that was probably in there that's only bits and pieces and not the full thing. I can't tell you if that bloke this is the right number because there could have been a copy of his induction card or his green card stapled with it. I can't see that with it here but I can with my own records.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN878

Can I ask you this question, a number SOT, that cannot be a valid green card number, can it?---Is it an S?

PN879

Well, what do you say it is?---Well, I can't tell you. Like I said, that could only be one page of 10 and you've picked that one page out but the following it could have had had a photocopy of his green card.

PN880

Well, can I - - - ?---So when I looked at them on site I could have said wait a sec, what's the next page, there's his card there and the next page could have had his right number written in there.

PN881

I see. But you'll agree with me that describing a green card number as SOT456600 - - -?---I'm not agreeing with you at all.

PN882

- - - must at the best view of it be a writing error of some sort?---Looking at that page, looking at that page that's a number.

PN883

Yes?---But like I said, until it's a full document, until it's a full document because it's not just one page, that just does not come like that. It comes in a pile of all that person when he does an induction, he's got to go through a safety tick off thing so he does all of that, that's just one page of like 10. So I'm not agreeing on it.

PN884

Can I suggest to you that by the way the man identified as P3 there was one of those persons detained by immigration on 29 May?---I don't know.

PN885

You see - - - ?---I don't know the names of the people that were taken away. Jim from - all I know, Jim someone from the immigration, he came in and thanked me and then someone from his department actually rang me again about a week later and thanked me again for the cooperation that I gave them. He did not at any time tell me the people that he took away so I don't know who they took away.

PN886

I see. But you know they took five away, don't you?---Yes.

PN887

And can I suggest to you these matters, the things that were in these forms were raised with you by Mr Lane on 19 April?---No, no.

PN888

But you think he raised them with you on 16 May, is that correct?---Yes, on
16 May. When he came in with En Won and they sat down he had a big folder, he had all these forms. He had forms that we had gone missing with him and this is when he brought all this up. Nothing was brought up prior to that.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN889

I see. So can I suggest to you that therefore again - sorry, that your evidence is that this all happened on 16 May, is that correct?---Yes.

PN890

Now, can I suggest to you that after you had this discussion with Mr Lane, Mr Les Mozzell - your brother, Mr Les Mozzell went off with Mr Lane?---Mozzell, yes.

PN891

Mozzell, sorry?---That's all right, like the wine.

PN892

Mozzell, I'll remember that. Went off with Mr Lane and took him to the induction area?---Yes, on the - this is in April, 19 April?

PN893

Yes, 19 April?---Yes.

PN894

And although you didn't witness it you believe that at that time Mr Lane took photocopies of further documents?---What I've been told, yes.

PN895

Now, can I suggest to you that after he'd been given the copies of the induction records Mr Les Mozzell escorted him back to the site office, Mr Lane, where you were?---He could have done, I'm not sure. I was in the office so I know Mr Lane came into the office. I don't know if Les escorted or what did he do.

PN896

And then can I suggest to you that - so Mr Lane on this occasion had had a discussion with you. I'm talking now about 19 April he had a discussion with you the first thing coming onto the site, is that correct?---Yes, he come and introduced himself to me when he first come to site.

PN897

Yes, and I said the discussion was longer than that?---No.

PN898

But you disagreed. And then Les Mozzell took him to the induction shed?---Yes.

PN899

And there was some more photocopying was done of records?---So I've been told, yes.

PN900

And then he brought him back to you in the main office, is that correct?---No, I don't think he did. I don't know if Les brought him back to the office but no-one - it really didn't happen that way. He didn't come into the office and sit down and we chatted for an hour. It didn't happen.

PN901

Can I suggest that he then had a short discussion with you about the possibility of illegal workers being on the site?---No, no, it didn't happen until May. It didn't happen until May.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN902

Can I suggest to you that he said that he was concerned it was possible?---No, he didn't. He didn't say anything until May. He brought it all up in May.

PN903

And can I suggest to you that you told him your comments are valid?---No, if I didn't talk to him how can I say that he did.

PN904

Do you say that you said in - do you agree that in May when he raised the question of illegal immigrants you said his comments were valid, is that your evidence?---Well, yes, yes, that could have been, yes.

PN905

Can I suggest to you that in April you said you'd changed the induction policy?
---No, I'm not sure when it was. When it was brought up because I just said it had been actually by me because what happened was that they come in, tried to be inducted and he brought a card that was exactly the same name as someone else and we brought it up and said wait a second, it had actually come in from Les and said, "This bloke's just been trying to induct himself with the same name as the bloke a couple of days before".

PN906

I see?---And that's I took it to my upper management and said what do we do, how do we tell that this bloke is who is, because there is no law in saying that they've got to have a photo ID along with their green card.

PN907

So when did you take that up with your management?---I can't recall. I really can't. It was over a year ago.

PN908

Can I suggest you took it up with your management after the April session you had with Mr Lane?---Look, I can't recall. It wasn't anything to do with Mick Lane at the time when we did the photo ID and I can't recall what day it was.

PN909

Can I suggest that then Mr Lane basically left the site?---Yes.

PN910

And in a very real sense all he'd done on the site was have a conversation with you and then spend a considerable amount of time in the induction area, is that correct?---He introduced himself to me and went to the site shed.

PN911

I mean to use the vernacular, you wouldn't really have described him as actually going on the site that day beyond - - - ?---I actually did because he was up there trying to talk to a bloke on the backhoe and he was up there with just a hard hat on a no high viz and it had safety signs on the thing and I said to Les, "Take this site vest up to him and put it on him because he's supposed to have a high viz shirt on so - - -

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN912

When did that occur?---I think that was on that day.

PN913

Are you sure of that?---Yes, I'm pretty well sure.

PN914

Was that before or after he - - - ?---No, it was because that was when he was hanging around the toilets and stuff talking to the people that were coming down.

PN915

When was he hanging around the toilets? I think you've just said to me that he - - - ?---If you could see where I was - - -

PN916

- - - came back to the induction shed and then just left more or less?---Well, the site induction shed, my office was sitting there and it's got windows - - -

PN917

So he came back to your office and left?---Yes.

PN918

Yes?---No, where I'm in the office my site shed's got two windows looking out on site. The site induction shed's outside just around the corner and I can see the toilet block and the induction shed from my office, where my office was sitting.

PN919

I see. Can I suggest to you that after he said goodbye to you, you and he were standing in the proximity of the front gate of the site?---No.

PN920

And you said to him, "You're not wearing a high visibility vest"?---No, no, definitely not. Definitely not.

PN921

Sorry, we'll, I'll try that again. Can I suggest that he and Ned were standing next to each other?---I am Ned.

PN922

Sorry, that's right. Can I suggest that Les said to him?---I don't know what Les said to him. I wasn't there.

PN923

I see. Can I suggest that both of you were standing there?---You can suggest it but it didn't happen.

PN924

Okay. And he said, "I'm about to leave the site and I'm a long way from the work area", he said that?---No. Picture, I wasn't there. I was in my office. I was in my office all that day. I had so much on that day.

PN925

And at that time stage you were standing about 75 metres from the commencement of the actual construction site?---Sorry, how far?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN926

75 metres?---No.

PN927

Standing near the gate?---There's an area where the site shed were. We had like a taped off area there at that stage where we had our site sheds and lunch rooms and stuff like that. But the construction site was the - the site sheds were in one corner of the construction site so actually he was in the construction site.

PN928

I see. And until that moment no-one had asked him to wear any particular safety items?---That's why we have a sign on the gate that tells you to have a hard hat, hard working shoes and a high viz and if you're inducted on site they are the first things that we tell you you have to wear on site all the time.

PN929

Well, there's no suggestion he wasn't wearing appropriate footwear, was there?
---No, high viz.

PN930

And indeed there's no suggestion he didn't have his hard hat with him?---No, I just said high viz shirt, that was the only thing we asked him to put on.

PN931

Can I suggest to you that his presence on the site was limited to the site office on that day, the other meeting and the main gate?---No, like I said before, he was over talking to someone out at the backhoe that was on site. He actually went out of that area from where it was a safe zone where you didn't have to have the safety gear on to somewhere on site. So he actually went and started talking to someone and that's when I said if he's going to start - if he's going to talk to people or do something like that he needs to put a high viz shirt on, especially around plant.

PN932

And you say he was talking to a backhoe operator?---Well, that's what it looked like from where I was in the office.

PN933

I see?---Because I was only looking out the window and I could see him out on the other side of the safety tape and he was up round near the backhoe and there's backhoes backwards and forwards and coming all over the place and I just said to - I think I called up one of the blokes on the radios and said, "Go up and grab him a bloody viz", a high viz vest because we had someone in the office, "and get him to put it on".

PN934

You said to me that on 17 April Mr Lane made no allegations to you about illegal immigrants?---On the 17th?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN935

Sorry, on 19 April, is that right?---Not that I recall, no.

PN936

Well would you like to have a look at your statement, please.

PN937

THE SENIOR DEPUTY PRESIDENT: Which one?

PN938

MR PEARCE: 2A.

PN939

THE SENIOR DEPUTY PRESIDENT: 2A.

PN940

MR PEARCE: 17 May.

PN941

THE SENIOR DEPUTY PRESIDENT: Anywhere in particular?

PN942

MR PEARCE: Yes, paragraph 15.

PN943

THE SENIOR DEPUTY PRESIDENT: Yes.

PN944

MR PEARCE: It's not 2A.

PN945

THE SENIOR DEPUTY PRESIDENT: Yes, it is 2A. That's at lunch time
Mr Lane entered the office.

PN946

MR PEARCE: No, your Honour, it's not 2A. It must be - - -

PN947

THE SENIOR DEPUTY PRESIDENT: 17 May, the 11 pages document, isn't it? That's 2A. Does it commence:

PN948

About around lunch time Mick Lane entered my office.

PN949

MR PEARCE: That's right, yes.

PN950

THE SENIOR DEPUTY PRESIDENT: Yes, that's 2A.

PN951

MR PEARCE: I thought I was - yes. Do you see that?---Yes, I do. I do.

PN952

So when you said earlier that Mr Lane hadn't raised with you on the 17th the question of illegal immigrants do you agree now that you were wrong about that?
---Yes, I do.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN953

THE SENIOR DEPUTY PRESIDENT: I think your evidence earlier was that the change in induction policy to include photo ID wasn't related to Mr Lane?---Yes.

PN954

Is that the reason - - - ?---That wasn't the only reason why we changed the photo ID. There was a few things that had happened prior to that even with the green cards.

PN955

Your statement here at 15 says:

PN956

As a result of Mr Lane having raised that issue we have since amended our induction policy.

PN957

?---I think as a result we have changed it. We have changed - actually there
was a - - -

PN958

MR PEARCE: So when you said before that you hadn't changed the photo identification - sorry, when you said before that Mr Lane hadn't raised the question of illegal immigrants on the site on the 17 April 2007 do you accept that that was incorrect?---With, sorry, can you repeat it?

PN959

When you said in your earlier evidence that Mr Lane had not raised with you on 17 April the question of illegal immigrants on the site do you accept now that that wasn't accurate evidence?---Yes.

PN960

And when you - - - ?---Like I said, it was over a year ago and I find it difficult to remember what I was doing a year ago. So if that was done straight after, a couple of days, that would probably be more closer to the fact than what I can remember.

PN961

Yes. And when you said that it wasn't after 17 April that you changed your procedures in relation to inductions in your earlier evidence that wasn't accurate either, is that right?---No, no. There was more than just him saying that there was illegal immigrants on site that made us change the procedures.

PN962

I see. Well, do you read what you see there - can you see what you've said in paragraph 15?---Yes.

PN963

You say:

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN964

He made further accusations that some of the subbies were illegal immigrants and raised concerns about identifying some of the Asian workers on the site.

PN965

Now, you accept that's an accurate record of what he said to you at that time?
---Yes.

PN966

And you said:

PN967

I thought it was a fair point that he'd raised regarding the identification of workers.

PN968

Is that accurate too?---Yes, it was a fair point.

PN969

And then you said as a result, meaning as a result of what Mr Lane said to you?
---I don't say that it's a result of what Mr Lane said to me.

PN970

I see. Well, as a result of it being a fair point?---Yes, it's a fair point.

PN971

Is that what you're saying?---Yes.

PN972

And it was a fair point that was raised by Mr Lane, wasn't it?---Yes.

PN973

Thank you. And so as a result of a fair point raised by Mr Lane you caused the induction policy to be amended to include a photo ID?---Yes.

PN974

And that all arose out of the conversation on 17 April 2007, didn't it?---I wouldn't say that it all arranged from that.

PN975

Well, what else did it arise from?---Well, like I said, we had people coming in with the same green card with the same name. There was a few things. That's why we changed it. I can't recall when we changed the bringing in the photo ID, I just can't recall.

PN976

THE SENIOR DEPUTY PRESIDENT: Mr Mozzell, how many separate discussions have you had with Mr Lane on 19 April?---Like just person to persons or?

PN977

On 19 April, in your office?---On the 19th?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN978

Yes?---It was coming - there wasn't - I can't recall him sitting down and having a long conversation with him. It was at the time there was so many people in our office. There's not just like one or two people. There's, you know, up to 10 people in our office and it was just busy that day. So I couldn't actually go with Mick Lane and go through all the procedures and have a look through the stuff because I just didn't have the time that day to do it.

PN979

So Lane was coming into the office on numerous occasions?---Well, he was coming in doing Photostats so.

PN980

And he spoke to you on some of those entries?---Yes, on some he could have said something but we never sat down for a conversation, no.

PN981

Yes, Mr Pearce.

PN982

MR PEARCE: Were you just suggesting that Mr Lane was doing the photocopying?---No, he was coming in - well, he came in with Les. I've already said that Les came in to do the photocopying. Like he was coming with Les, that's all.

PN983

So he was coming from the site induction office back to your office to do the photocopying?---Well, that's where the photocopier was.

PN984

I see. He was walking backwards and forwards with Les, is that your evidence?
---You'll have to ask Les. But he was in the office, yes. Les - I asked Les to stay with him and help in out in any way he could.

PN985

Yes?---So he was coming in with Les probably to do the photocopying.

PN986

So it wasn't a situation that Les was leaving him in the induction shed by himself?---I think he had to at one stage. Towards the end there they had to because it was just taking so long and they had to go out on site. But you'd have to ask Les. I know that there was something happening during the day.

PN987

But your observations on 19 April was that Mr Lane was going backwards and forwards from the site induction shed to the main office?---To take photocopies, yes.

PN988

And how many times do you say that happened?---I can't remember. A couple of times.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN989

And did he have some conversations with you during the course of that?---Not to my knowledge, no. I know there was one stage there he came in and talked to me but that was about it. It was not really a conversation.

PN990

Mr Mozzell, are you sure you're not confused about what happened on 19 April and what happened on 16 May?---No, because most of the things that happened on that day, on 16 May was to do - I never knew about it. I didn't know about Cosmont. He came back with all the documentation on - and brought it forward to me and saying this bloke wasn't being paid and that bloke wasn't being paid and that's when it went from there.

PN991

I see. So when Mr Fleming described this conversation on 19 April he's just got it all wrong, has he?---I don't know. I don't know what he heard. I've never discussed it with Darren.

PN992

Yes, I appreciate that. I mean because it is fairly specific. He mentions a particular company. I'll show you the statement?---That's the one you showed me earlier on?

PN993

Yes?---Yes, I remember, yes.

PN994

All right. Now, can we go to the events of 16 May, Mr Lane came back onto the site, is that correct?---On 16 May, yes.

PN995

And quite early he introduced himself to you again?---Yes.

PN996

And you were expecting him?---Yes, he sent through a faxed thing saying that him and En Won were coming on the site.

PN997

But you were expecting him anyway because you had more or less said subject to availability come again, hadn't you?---No, he sent me a fax saying that he was going to be there that day.

PN998

No, but in a broader sense because the fairly amicable - or the amicable events, the meeting of 19 April, towards the end of it, you'd said come again, hadn't you?
---Yes, why wouldn’t I? It was only I said that prior to I found out the way that he left the site shed. That's why I commented that, you know, I'm not there to sort of be hassling anyone or stuff like that so.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN999

Now, can I suggest to you that he came and spoke to you and then a request for a safety inspection occurred towards the outset of the meeting?---Because I wasn't cooperating with him, that was why. He turned to En Won and said, "It looks like we're going to have to do a safety walk".

PN1000

I see. Can I suggest to you that the request for the safety inspection occurred towards the outset of the meeting. Can you answer my question?---The outset?

PN1001

Yes?---Because they weren't getting their way?

PN1002

No, can - - - ?---That's what the outset was. He went through all this documentation and then when I said that I wasn't going to give him any more documentation because what I've been told by my upper management, unless they were CFMEU members, I couldn't give them document because we could be in a lot of trouble giving documents away on personal matters to people that weren't actually members, they just turned to each other and said, "It looks like we're going to have to do a safety walk".

PN1003

Can you listen to my question, can I suggest to you that Mr Lane made the request for a safety inspection quite early in the meeting?---No, no, he never, only right when he couldn't get his own way and that's what I said, what was there to safety breach.

PN1004

And when he asked for that inspection you rang your brother Les?---Mm.

PN1005

Asking him to come down?---Yes.

PN1006

And Mr Lane waited for about - and Mr En Won waited for about 20 minutes before the inspection happened?---I don't think so. I don't think so. I don't think that happened.

PN1007

And the inspection only happened after you've given evidence of a conversation with Mr Robert Commbe, C-o-m-m-b-e?---Yes.

PN1008

The inspection only happened after you had the conversation with Mr Commbe?
---No, they got up and just sort of got out of the office. I was actually - I rang Les. I said, "Wait there, I'll get Les to go with you", because none of them were inducted. I just said, "Go with Les". Les does sort of like the safety actually on site, you know, picks up things and whatever and he was going to go with them. They just walked outside. I thought they've just gone outside for a smoke and I thought, well, I'll talk to Rob Commbe and find out what I've got to do while that's all happening because I don't mind them going through and having a look, inspection site safety at all. We have a good safe site so.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1009

Well, my question was to you that the inspection only occurred after you had had the conversation with Robert Commbe, is that correct?---No, I think I rang Robert Commbe as they were all going outside.

PN1010

I thought you just said that they went outside and had a cigarette?---That's what I thought they were doing. I got a phone call from Les saying that they were on site talking to the tilers.

PN1011

I see. So you didn't - - - ?---And that happened way before 20 minutes.

PN1012

I see. And so your evidence is that you didn't know that Les had started the inspection with them?---No.

PN1013

When you got the phone call?---No, well, Les rang me and said that they were already on site, up there before he even come down to get them.

PN1014

I see. And can I suggest that you spoke to the Master Builders after you spoke to Les about the inspection?---Afterwards?

PN1015

Yes?---Yes.

PN1016

Now, can I suggest that at the time that Mr Lane first came on site he did say to you, "Can we please have an update with respect to the induction for two companies, Cosmont Interiors and Classic Tiling Pty Ltd"?---In that way, no. It was virtually give it to me now and I said like can you just show me the people, the names that you want to have a look at so I can get their forms out. I said, "If they're members I'll get their forms out for you", and they just carried on and they started yelling at me, En Won, and they were really rude.

PN1017

So basically your approach was that you weren't going to give them any more access to induction records?---I was told not to. I was told not to.

PN1018

You weren't going to give them any more access to workers compensation information?---I was told not to.

PN1019

Can I suggest to you that the reason you took that approach was because you were so embarrassed about all the things that had been pointed out to you on 19 April?
---No, no, definitely not.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1020

Can I just finish my question?---No, definitely not. After the incident in April and we had documents go missing and things like that, we had Mick Upson and that came and said to me that, you know, any documents they've got to be handed out because it's just the way the site induction room was left with just all our legal documents that we've got to have three years just scattered. Like I'm talking about scattered around the site induction room.

PN1021

But you never saw the site induction office, did you?---No, it's when the boys come - actually I did when I went out. They said come and have a look how they've left the files.

PN1022

Where do I find that in your statement?---It's not in my statement, I don't know.

PN1023

You never saw what conduction the site induction office was left on 19 April, did you?---Yes, I did.

PN1024

Well where do I find that in your statement?---It's not in my statement.

PN1025

No, because you never saw it?---Then didn't ask me what colour underwear I was wearing on the day either.

PN1026

I see. And you just relied on what Les had told you, didn't you?---No, I went out and had a look. Les come and seen me and said, "Come and have a look what they've done out here".

PN1027

Where do I find that in your statement?---I've got in there what I had for dinner too. I didn't put it in there.

PN1028

THE SENIOR DEPUTY PRESIDENT: I think it's the breakfast of the ABCC inspector in some of the documents produced.

PN1029

MR PEARCE: Yes. In fact all you said about the site induction room was that it was cleaned up when you went in there?---Does it?

PN1030

Yes, have a look at paragraph - sorry, sorry, I'm referring to something
that - - - ?---Yes, I seen it.

PN1031

No, where do I find in your statement any reference to you going to the site induction office and seeing a mess?---It doesn't. I suppose it doesn't say it.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1032

That's because it didn't happen, did it? You didn't go to it. You relied on what Les had told you?---No, no, I told you the truth. I told you what happened.

PN1033

I see. And that's something that you've just made up as you're in the witness box now?---No.

PN1034

I see. Now, in any event you refused to give Mr Lane updates with respect to inductions from Cosmont Interiors and Classic Tiling, is that correct?---That's correct.

PN1035

We're now talking about 16 May?---Okay.

PN1036

And all my questions will be about 16 May?---Okay.

PN1037

Unless I identify it otherwise to you?---Righto.

PN1038

At the same time he gave you an Australian Tax Office superannuation three page document that spelt out clearly the superannuation responsibilities with subcontractors, i.e. those who are on ABNs?---I don't recall that.

PN1039

When you say you don't recall it yourself, did it happen?---I can't remember him giving me any documentation, only the 127s. I think all the documentations that he gave me on that day would be in here because I handed that - I put that straight in the folder and I gave that straight - - -

PN1040

Well, can I show you a document, I suggest that this is the document that he gave you on that day?---No.

PN1041

You've never seen that document before?---No.

PN1042

I wonder if that could just be marked for identification at this stage, your Honour?

PN1043

THE SENIOR DEPUTY PRESIDENT: Yes.

MFI #1 D0CUMENT HEADED SUPERANNUATION GUARANTEE CONTRACTORS

PN1044

THE SENIOR DEPUTY PRESIDENT: There's a notation on that, ML9, where is that from?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1045

MR PEARCE: Your Honour, that's a notation made by Mr Lane.

PN1046

THE SENIOR DEPUTY PRESIDENT: I see.

PN1047

MR PEARCE: That will become as part of the evidence in due course, your Honour, subject to any objection that my learned friend has.

PN1048

THE SENIOR DEPUTY PRESIDENT: Right.

PN1049

MR PEARCE: Can I suggest that you said to him words to the effect I've never been paid superannuation when I was working as an individual ABN worker, you said that to Mr Lane?---No, why would I say that to him?

PN1050

Because he gave you a document from the Australian Taxation Office about superannuation?---No.

PN1051

I see. And then you said to him, "I've made inquiries from both companies", at the outset of the meeting, "that we're talking about", and those companies were Cosmont and Classic, weren't they?---Yes.

PN1052

And you said, "I've made inquiries from both companies that we're talking about, both companies have informed that all employees were in fact subcontractors and therefore they do not have to pay superannuation or cover themselves for workers compensation". You said that to him?---I know that we talked about subbies, yes.

PN1053

Yes, you told him that - - - ?---I can't recall what I actually said to him but I know we talked about that I rang them and talked about the subbie stuff.

PN1054

Yes, you told him that you'd spoken to someone from Classic Tiles, I think you've identified that as Mr Hadad, wasn't it?---Yes.

PN1055

And he told you they were all subcontractors?---Yes.

PN1056

And therefore they didn't have to pay superannuation or cover them for workers compensation, is that right?---Yes.

PN1057

And you told him also in relation to Cosmont that you've made inquiries from that company and that all their people were subcontractors and therefore they didn't have to pay superannuation or cover them for workers compensation?---It would have been the same discussion I think.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1058

Yes. And you told him that more or less at the outset at the time that you refusing him any more updated records?---Yes, it didn't sort of come at the outset though. It sort of came in just saying I want to see these documents.

PN1059

And in the conversation that followed where you said he can't have them - - - ?
---It wasn't much of a conversation. It was a lot of yelling.

PN1060

In the conversation that followed where you said he can't have them you told him that you'd made these inquiries, is that right?---He came in and I said to him that I've been informed that I cannot give him any - can't give him any documentation. I've been told by my upper management unless that they were a member of the CFMEU under some Act, Privacy Act or something, that I wasn't allowed to give it to them.

PN1061

And then you told him that you'd made inquiries, didn't you?---Inquiries?

PN1062

Yes, of Cosmont and Classic Tiling?---No, this was all new. On the 16th that was all new stuff. Like, I didn't know which one he was picking out, if it was Cosmont. I knew he was after like he was after the information that he gave on that day, that's all I know.

PN1063

Sorry, can I suggest that you told him he couldn't have the records on Cosmont or an update on Cosmont or Classic Tiles, is that right?---Yes.

PN1064

You told him that, as you've said, about privacy or company policy in relation to these matters?---Mm.

PN1065

But then you told him that you'd made inquiries from both companies, didn't you?---Not that I know of. No, only afterwards.

PN1066

What do you mean by afterwards?---Well, when the 127 came through that was when we all sort of started to hold things up and make sure that everything was right.

PN1067

So when do you say you told Mr Lane that they were all subcontractors, to paraphrase?---I told you that I knew that from sort of virtually when I started.

PN1068

Yes, I know but answer my question, when do you say you told Mr Lane that they were all subcontractors?---Probably on that day.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1069

And can I suggest to you that you told him shortly after you told him that he couldn't have access to Cosmont's and Classic Tiles documents in the same conversation?---Yes, it was all in the same conversation.

PN1070

Yes. Which meant of course that you had made those inquiries before you had the first conversation with Mr Lane hadn't you?---What, that I couldn't give it to him?

PN1071

No. You've made inquiries of the principals of Cosmont and Classic Tiles before you had the first conversation on 16 May with Mr Lang hadn't you?---I was told by upper management that I wasn't allowed to give any information in.

PN1072

Can you just answer my questions please?---Yes.

PN1073

You had had the conversation - you've told Mr Lane that you'd spoken to Classic Tiles and they told you they were subcontractors and didn't have to pay superannuation?---Yes.

PN1074

Or cover them for workers comp?---Yes.

PN1075

You told him that on 16 May?---Yes.

PN1076

You told him that shortly after you'd refused him access to their records?---Yes.

PN1077

And similarly with, I think Classic Tiles - I just asked you about Classic. Anyway, similarly with the other company, you told him that you've made inquiries of them, is that right?---Made inquiries?

PN1078

Yes?---I'm always making inquiries on everyone on site.

PN1079

And that they had told you that they were subcontractors and they didn't have to pay superannuation or cover them for workers comp?---Yes.

PN1080

And you told him that on 16 May shortly after you refused him access to the updated records for Cosmont Interiors and Classic Tiling didn't you?---Well, see, prior - - -

PN1081

Can you answer my question?---Yes. Well - - -

PN1082

Yes or no?---Well, I couldn't, I wasn't allowed to.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1083

No, can you answer my question. You told him that you'd made those inquiries shortly after you had the conversation with him saying that you couldn't give him the records?---Shortly afterwards, you mean that day?

PN1084

Yes?---Well, I couldn't give him the records. I don't know where you're going. You've got it all mixed up.

PN1085

Well, you're not supposed to know where I'm going. Can I suggest to you - - -

PN1086

THE SENIOR DEPUTY PRESIDENT: Well, Mozzell, if you try not to work out where Mr Pearce is going and just listen to the questions carefully and answer those directly that might assist.

PN1087

MR PEARCE: Can I suggest that you told him shortly - you had a conversation with Mr Lane about you weren't allowed to give him the records on 16 May?
---True, yes.

PN1088

And then after that you had a conversation with him saying in relation to Cosmont that you'd made inquiries, is that right?---That I made inquiries prior to that?

PN1089

Yes?---I thought you were saying after that. That's why I was getting mixed up.

PN1090

That you'd made inquiries of Cosmont?---Yes.

PN1091

And that you told him you'd made inquiries of Classic?---Yes.

PN1092

And both of them have said, look, they're subcontractors and we don't have to pay superannuation or cover them for workers compensation?---It wasn't under just them two.

PN1093

Yes. And therefore so you had made those inquiries of Cosmont and Classic before you spoke to Mr Lane hadn't you on 16 May?---Before this, yes.

PN1094

And you'd made those inquiries because Mr Lane had raised Cosmont and Classic Tiling with you on 19 April hadn't you?---No. No, that wasn't the case at all.

PN1095

Well, how did you come to make those inquiries before 16 May if it wasn't because Mr Lane raised it with you?---Because every month we've got to go through the induction and make sure that everything prior to their payments that everything's up to date, so that's including the stat decs, that's including the superannuation and things like that. So I said this is all happening earlier than when I started and there were still things that I changed on the job.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1096

THE SENIOR DEPUTY PRESIDENT: I thought you simply relied on the statutory declarations in relation to - - -?---We did. We did. But we still had to get the information before us, like, that all comes in prior to their payments.

PN1097

But why would you make specific inquiries in respect to super and workers compensation?---That's what I was saying, I didn't make specific inquiries on Classic Tiling and Cosmont, it was everyone, everyone who put a payment in for that month.

PN1098

And you departed from your normal practice of simply relying on - - -?---That is part of my practice, that's what I do. That's part of being the site manager.

PN1099

Well, I'm sorry, can you clarify what the nature of the inquiries of Cosmont and Classic and the others were, or what were your inquiries?---My inquiries?

PN1100

Yes, before 16 May what did you do?---Well, we just went over them, we just went over their documents. The question that you're trying to ask me is, did I actually say that we went and had a look at their documents. We did.

PN1101

Did you contact any of those companies?---No. It was only through the paperwork that was in front of us.

PN1102

MR PEARCE: I'm sorry, I thought you'd just given evidence some moments ago that you made inquiries of Cosmont and Classic and they told you that they were subcontractors?---Yes, that was - I told you that way before - on the first week that I started I knew they were subcontractors.

PN1103

Yes. And you couldn't have known that they were subcontractors from reading your own documents could you?---No. It comes from them. They've got to produce those every month.

PN1104

Because your documents describe them as - Cosmont and Classic as the employer didn't they?---They did.

PN1105

Yes. And so you had made those inquiries prior to speaking to Mr Lane on
16 May 2007?---I didn't have to make the inquiries. I didn't make the
inquiries - - -

PN1106

Will you please listen to my question?---I am. I am listening to your question.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1107

The question I've asked you is, you had made those inquiries prior to talking to Mr Lane on 16 May 2007?---No, I didn't. You asked me if I did. I did not.

PN1108

It's capable of a yes or no?---No.

PN1109

So you hadn't made any inquiries, is that your evidence now?---No. I myself, I did not, no.

PN1110

Did you get somebody else to make inquiries?---No. The CA could have made the inquiries, he gives me the paperwork for each month.

PN1111

Sorry, are you suggesting the CA made inquiries of - - -?---I don't know. On the job the - I've got to - every month we get the program with the payments, and that's what I was - I think that's why I thought you were going - you're talking about.

PN1112

No. I was really talking about, you gave evidence that you had made inquiries of persons associated with Cosmont and Classic Tiles about whether these people were employees or subcontractors?---They're subcontractors.

PN1113

And the answer is, that's the evidence you gave, and that's correct isn't it, that you've made inquiries?---Yes. But you're saying that if I - did I talk to them.

PN1114

Yes, that's what - - -?---No, I didn't talk to them.

PN1115

You've made inquiries. And what did you mean by make inquiries?---Well, I've only been there - I've only been there for a short period of time so the CA that's been there for probably a year before I'd been there and everyone else like the foremen and stuff like that, they were all up to date on who was a subcontractor and who's not a subcontractor. So I've only had to speak to my team to say this bloke is a subcontractor. The CA does all the virtually account and paperwork. All I've got to do is just go over the top of it and say yes, that's right or that's wrong.

PN1116

Mr Mozzell, can I suggest that you're very defensive about all of this in the way you're giving your evidence?---I'm just confused, I'm totally confused. You sort of talk about something and then you jump into something else and I just get confused with what you're talking about.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1117

Can I suggest to you that you're defensive because you knew after you spoke to Mr Lane on 19 April 2007 that the records of the site were a mess?---They were after he left, yes.

PN1118

No. Can you answer my question. You knew after he spoke to you that the records were a mess?---Why would I let him go in and have a look at the records if I knew they were a mess?

PN1119

Well, you did didn't you?---Let him go in and have a look at them?

PN1120

Yes. Now can you answer my question? After you spoke to him on 19 April you knew the records were a mess, there were real problems with compliance with the occupational health and safety regulations didn't you?---No.

PN1121

And as a result of that in your evidence today you've been anxious to point out that keeping of these records were other people's responsibilities haven't you, so as to avoid getting any blame for it, is that right?---No, it's - no.

PN1122

And you've been anxious to point out that you hadn't been on the site very long so as to avoid getting any blame for the state of the records haven't you?---No.

PN1123

Because you know that on the records there were some people working there who there was no evidence that a green card even had been sighted.

PN1124

MR COLEMAN: Your Honour, I object. My friend has gone over this before and the witness's answer was that what was shown to him as the front sheet of a large bundle of papers. He can't adequately answer that question until he has the original bundle of papers as to the adequacy of the records. Now, in my submission fairly on the same subject, which has been fully answered and answered in an appropriate way.

PN1125

MR PEARCE: Your Honour, I'm not going back on the subject matter. I'm putting to him some propositions that I think emerges from the way he's given evidence this morning, and particularly in the last 20 minutes.

PN1126

THE SENIOR DEPUTY PRESIDENT: Yes. Well, we won't go to specific documents, and look at the general issues.

PN1127

MR PEARCE: So to recap on that topic. After 19 April you were very concerned about the state of the paperwork, the records on the site?---No, I wasn't, no.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1128

You were concerned that you were going to get the blame for it?---Never.

PN1129

And you still have that concern?---No, I don't.

PN1130

As you give your evidence today?---No, I don't.

PN1131

And because you have that concern in your evidence today you've shifted responsibility to the CA, is that right?---No, no, I haven't. I take full responsibility.

PN1132

And because you've had that - well, you did at the outset. And before you've had that - because you had this concern you've shifted the responsibility to other people who were involved in the induction process haven't you?---No. But you're asking me a question did I personally contact Cosmont or Pierre, whatever, to talk to them about this matter, and I didn't.

PN1133

I see. You've never spoken to Haddad about whether they were subcontractors?
---No, I have. I have spoken to him.

PN1134

When did you speak to him?---What, the last time I spoke to him? I can't give you - - -

PN1135

No. When did you speak to him about whether they were subcontractors or employees?---When I first met him.

PN1136

When was that?---Because he introduced him. When I first got there, the first couple of weeks that I was there.

PN1137

And when was that?---In March, early March.

PN1138

I see. And when did you speak to - who was the gentlemen from Cosmont, the principal of Cosmont, Mr Bede?---Bede. I didn't actually meet Bede for a while, he was in China. I actually - there was another member that was working there, I can't remember his name.

PN1139

When did you speak to him about the fact that the persons working on the site were subcontractors and not employees?---Actually that was probably after - between the two visits from Mick.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1140

And that was because Mick raised it with you didn't he on 19 April?---No. I've said - because I've only just been there for a while, so it wasn't that at all.

PN1141

So you just did it spontaneously?---No, it wasn't spontaneous. It was that we had to get more people on site, and I was trying to get him to get more people on site and do the work so we could get it out on time, and I offered him to use some subcontractors from Bathurst to do the work.

PN1142

Now, just to recap. Now I'm going to go back, I'm sorry, to 19 April. Just to recap on 19 April. The events that really happened on that day was that Mr Lane carried out, apart from having a meeting with you on a couple of occasions, basically carried out a paperwork inspection didn't he?---When, on the 19th?

PN1143

Yes, the first time?---Yes, he went through the induction. I don't know what he looked at.

PN1144

Can I suggest to you that he never really went on to the site proper?---No. I seen him on site.

PN1145

Okay?---But that's not only up to me. You can ask anyone else that was there.

PN1146

Yes, all right. Now I'll go back to 16 May, and I'm putting a conversation to you. I'm sorry to jump around. Can I suggest to you that you told Mr Lane that you'd made - to bring it back to the context - that you'd made inquiries from Cosmont and Classic and you'd been told that they were all subcontractors and therefore they didn't have to pay super and cover for workers compensation, and I'm suggesting that you had that conversation with him quite early in the discussion?
---I can't understand why I'd even bring that conversation up, so no.

PN1147

Well, because he raised Cosmont Interiors and Classic Tiling with you, and you agree with that don't you?---Yes.

PN1148

So can you understand why I'd suggest that you had that conversation with him?
---No.

PN1149

And can I suggest to you that Mr Lane raised with you the question of whether these subcontractors had disability insurance or workers compensation, these are the subcontractors at Classic and Cosmont at that time?---Yes.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1150

He raised that with you?---Yes.

PN1151

And he also asked you have you reviewed all their individual safe work method statements under the OH&S Act?---Yes.

PN1152

Because you knew that all of these subcontractors were - sorry, whether there was a situation of pyramid subcontracting all of these subcontractors had to have their own work method statements or at least have signed work method statements didn't you?---To sign work method - they have got to sign underneath, like, say if they're subcontractor for Classic Tiling they've got to sign Classic Tiling's safe worth methods statement.

PN1153

Well, that's one view of the regulations, but in any event you knew that they had to have signed the safe working method statement at least for Classic or Cosmont?---Yes.

PN1154

Even though they were subcontractors in their own right?---Yes.

PN1155

Can I suggest that the conversation I have just relayed to you starting with the request for inductions - sorry, for an update on the inductions, lasted about 15 minutes?---What did, sorry?

PN1156

The conversation that you and Mr Lane had when you first came onto the site lasted for about 15 minutes?---On what day are we talking about, the 16th?

PN1157

We're talking of 16 May, yes, thank you, is that right?---About the inductions?

PN1158

Yes?---It was brought up in the whole conversation.

PN1159

I see. Can I suggest to you that you then telephoned head office of Kell and Rigby and spoke to a person called Rob, who we know is Rob Commbe, is that right?---Yes.

PN1160

And he was an ex builder's labourer - sorry, ex Master Builders Association wasn't he?---From what I believe, yes.

PN1161

And you told Mr Lane that he was ex MBA, is that right?---I could have done, I'm not sure.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1162

Because he was there while you were having the conversation with Mr Commbe?
---Yes. The first - I had more than one conversation with Mr Commbe though.

PN1163

I see, all right. And it was at that point that Mr En Won Lee issued a section 127 notice to you for each of the two companies?---Because I didn't show them the documents, yes.

PN1164

No. It was after you'd spoken to Mr Commbe that he issued you with the notice?
---It could have been.

PN1165

And you said you'd forward these documents to head office?---Yes, I did.

PN1166

And you signed for the documents?---Yes, I did.

PN1167

And then Mr Lane said, well, we'd like to meet with the workers of these two companies in accordance with our notice, did you say that?---I can't remember. Sorry, I can't comment, I can't remember.

PN1168

Now, up until this time you had made no request for Mr Lane or Mr En Won to produce their right of entry had you?---No. All I asked for was ID to actually show who they were. I didn't know about the right of entry until later.

PN1169

You knew who Mr Lane was but you didn't know who En Won Lee was?---No, I didn't have a clue who En Won was.

PN1170

Did he give you a business card or something like that?---No, I don't think he did. I know that Mick gave me one, but I can't remember if En Won gave me.

PN1171

And then you showed him the document that you'd produced advising people that there was going to be a meeting?---Yes.

PN1172

Which has been marked as an exhibit?---Yes.

PN1173

That document's in English isn't it?---Yes.

PN1174

You didn't produce one in Chinese or Korean did you?---No, no.

PN1175

At that stage you knew that the employees of Classic Tiling - sorry, I'll use that term - the persons engaged by Classic Tiling and Cosmont, very few of them if any of them could speak English?---That's why we gave it to Luchy, who was the foreman, to hold it and tell these blokes that they were all coming.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1176

I see. And let alone could any of them read English, that would be right wouldn't it?---No. But they can understand Chinese through it's interpreter.

PN1177

So you gave it to Luchy?---Yes, Luchy.

PN1178

And what did Luchy do with it, do you know?---He went and told the blokes.

PN1179

Did you see that?---He did that at smoko.

PN1180

Did you see that?---No, I didn't actually see it, no.

PN1181

No. So you gave it to the foreman and asked him to tell them that, you know, there was going to be a union meeting, is that right?---Yes.

PN1182

And did Luchy come back to you after he'd done that?---Not to me personally, no.

PN1183

Did anyone come back to you?---What, with the signing the form?

PN1184

Yes?---No, no one did.

PN1185

So you don't know for sure that any of the workers were given the form do you?
---It was sitting in - when they sign in of a day. We've got a little noticeboard thing where they've actually got to sign on site, and it was sitting right there.

PN1186

Sitting right there in English?---In English.

PN1187

It wouldn't have been much use to them would it? I don't think any of them could read English could they, do you accept that?---I accept that.

PN1188

Yes. So no one had put their name on the form?---No. The reason for the form was just because of the lunch hour breaks, and if someone had there that they wanted to see the union we could have just went up and got them and brought them back down to see the union.

PN1189

But you didn't say look, no one signed the form, did you? Can I suggest to you, you said no one wishes to speak to you?---No.

PN1190

Well, what do you say you said to Mr Lane?---I don't think I'd said that.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1191

Well, what do you say you said to him?---I don't know, I can't remember. But I'd just shown him the form that we did. He got a bit upset about it. I thought I was doing a nice thing, and it virtually got thrown back in my face, so in other words being an arsehole.

PN1192

I see. Can I suggest to you, you said no one wishes to speak to you?---No, no, because that wasn't the reason for the form?

PN1193

Well, what did you say to him when you gave him the form?---I told him that we tried to arrange a time for someone to come down here. But that wasn't why we did the form. Like, I didn't even have to write anything, I didn't have to tell people at all, I didn't even have to put a piece of thing out there that was in Chinese or English, I didn't have to do that. I did that just so that people could have come down and spoke to the CFMEU.

PN1194

Well, you didn't really know whether anyone wished to speak to him or not did you?---No, I didn't. But if I didn't say anything no one would have known anyway.

PN1195

I see?---I actually went - I thought I went one step further and tried to get people to come down and speak to him. If I said nothing they wouldn't have known anything at all.

PN1196

And you didn't say when the meeting would be in that form did you?---Well, there wasn't anything on the fax I don't recall that actually said a time, but we just gathered it would be around about 10 o'clock. And that was the reason we did the form, because when they come on the site and if they wanted to speak to the CFMEU we could actually go up and get them and say look, they're here now. It's just that there wasn't any time to say no, I'm going to be here at 10 o'clock.

PN1197

I see. But you knew that they wanted to speak to employees in particular from Cosmont and Classic Tiling didn't you?---Only when they got there.

PN1198

I see, only when they got there. Now, the form of course had a - fortunately had a column that enabled them to nominate their CFMEU membership number?---Yes.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1199

Why did you do that?---I don't know. I've only - like I said, I didn't have to put anything out there. It was only trying to help, to say here they are, you know, these are the people, here's a page of the people that we'll go up and grab now if you want or, I don't know. Like, what do you put on the form?

PN1200

I don't know?---Why do you put, you know, green card number down there? I don't know. We just did something to try to help and then we got it thrown back in our face.

PN1201

I see. Well, I know why you put the green card on your form, because that's a requirement of the regulations isn't it?---Yes.

PN1202

Thank you. Now, in relation to the notice that you put out, can I suggest to you - would you like a copy of it?---Thank you.

PN1203

What prompted you to put a reference on that form to ask if you were carrying out work that's covered by an award or collective agreement that's binding on the CFMEU, and you're a member of the permit holder's organisation, who drafted those words?---My CA did.

PN1204

I see. Well, do I assume from that that your CA drafted the whole notice?---Well, he did the notice and I approved it.

PN1205

Or eligible to become a member of the CFMEU?---Well, that's what - so what's wrong with that?

PN1206

Well, can I suggest to you that, if I may say so, putting these types of things on a form makes it a rather complicated notice doesn't it?---Why?

PN1207

Well, I can ask you, are you eligible to be a member of the CFMEU?---No. I was told to resign by the CFMEU.

PN1208

Do you know if you're eligible under their rules to be a member of the CFMEU?
---From Mick was saying, yes, I can be.

PN1209

When did you find that out?---That day.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1210

I mean, you wouldn't really have expected necessarily Korean tilers necessarily to know whether they were eligible to be members of the CFMEU would you?
---Look, I wasn't being nasty with that letter. If you think that I was being nasty with that letter you're wrong. Like, it was trying to - like I said, I didn't have to say anything, I didn't even have to put anything out. I was just trying to tell people that there was going to be a visit and if you wanted to come down and we could have went up and got them or whatever.

PN1211

All right. Now, in any event at that point things took a turn for the worse I suppose and Mr Lane said to you there's a number of safety issues on the job and prior to leaving the job I wish to carry out a safety inspection?---Well, I was a bit surprised at that because for someone who hasn't been on the site how did he know that there was safety breaches?

PN1212

Well, I'm not really interested in disputing that you were surprised. He said that to you didn't he, that he wanted to carry out a safety inspection?---He said that it looks like we're not getting any cooperation here, it looks like we're going to have to do a safety walk.

PN1213

And you said I have no problem with that?---No, I didn't.

PN1214

I'll get the site safety officer Les to accompany you?---Yes, that's exactly what I said, yes.

PN1215

THE SENIOR DEPUTY PRESIDENT: Is this an appropriate time to have a breach for lunch?

PN1216

MR PEARCE: Yes, it would, your Honour.

PN1217

THE SENIOR DEPUTY PRESIDENT: I'll adjourn until 2 o'clock.

<LUNCHEON ADJOURNMENT [1.00PM]
<RESUMED [2.05PM]

PN1218

MR PEARCE: Now, Mr Mozzell, we were just talking about this notice that you issued for the meeting on 16 May 2007?---Yes.

PN1219

Can I show you copies?---I've still got a copy here.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1220

Good, right, thanks. Now, why did you issue a different notice on this occasion to the one you issued on 18 April?---Sort of no reason I don't think. It just - we still wanted to do the same thing as we did before, was just put a notice out to let people know. We just found that because of the different regularities with times people had lunch we thought if we did it this way we could actually chase them up and get them to come down when the union arrived, whereas before we didn't have - we couldn't find out who wanted to come down and speak to them or not.

PN1221

But, you see, can I suggest to you that the notice that you issued for 16 May was more conditional in terms of who could attend the meeting?---Who could attend?

PN1222

Yes?---Anyone could attend.

PN1223

No. If you have a look at the notice you issued for 16 May, it suggests that those who can attend the meeting are limited to two categories, or three, being people who wished to participate, is that right, one and two?---No, I don't. That wasn't its intent at all.

PN1224

I see. Well, why were those conditions put on the document at all?---Well, what do you put on the document?

PN1225

Well, didn't you just go with the old copy, the one issued last time?---For that reason, that we wanted to put peoples names there so that we could go and get those people from site. See, these people might have had - the union might have come at 10 o'clock to have a meeting, or your smoko at 9 o'clock, but they've already had smoko at 8 o'clock, so that way we knew who wanted to come and we could just say, well, here's the people who want to speak to you, we'll go get them. That's what all the document was for.

PN1226

No. Then why did you add the part that reads "if you are" do you see that, 1 and then 2, why did you add that to the document at all? You could have just said if you want to - if you wished to participate in discussions fill in the document?---I didn't see anything wrong with it. I didn't think that we were being nasty at all. I thought I was helping. I'll know in future not to write anything.

PN1227

THE SENIOR DEPUTY PRESIDENT: Mr Mozzell, I think the point being raised is that the first notice was a very general one - - -?---We had a couple more - we had an extra day to - - -

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1228

Well, just wait till I finish. A very general one just advising the employees generally of the presence of the CFMEU and the PBU organisers. The second very specifically sets out the restrictions if you like, conditions required for persons, the CFMEU to have rights to talk to people?---Yes.

PN1229

Replicating in effect the terms of the Act inaccurately insofar as it has or rather than and at the end of 1, but it specifically places in those conditions within the Act, whereas the first document was not restricted in that way?---Okay. The first document came out, we got notification from the CFMEU by about, I think it was about three or 4 o'clock, that they were going to be out the next day, so it was pretty well rushed that we got something out on the cars and to people to tell them that they were going to come, whereas this one here we had a full day to actually get something together.

PN1230

And when you say we had time to get something together, who do you mean by we?---The team that - everyone that was on, like, in the office at the time.

PN1231

You said earlier I think in your evidence that it was drafted by the quality assurance - - -?---No, the CA, the contracts administrator.

PN1232

Sorry, CA, contracts administrator. And that was with the assistance of yourself and whoever else - - -?---Yes, I just approved it. He just put it together and then just showed it to me, and I said yes, go with that.

PN1233

I'm sorry, a minute ago you said all of us that were in the office?---Yes. Well, we have a briefing and debriefings every day, so when the second time that came around we just all discussed what we were going to do and so that we could get something out on the cars and notify people, so that's what we sort of came up with, so how we got something together.

PN1234

Was the insertion of those conditions within the Act discussed in that?---Within the Act? I wouldn't know.

PN1235

The insertion of those conditions which were placed in the - - -?---I wouldn't know. I think what - how he done, actually done, was take that off the top of the fax that came through, so that's - he only just transferred that onto this.

PN1236

MR PEARCE: Sorry, there was a fax?---Well, so people were going to be on site. I think you'll find that that's just something that was on that.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1237

I see. So your evidence is now that those words were taken off what was on the notice of entry document are you?---Yes, something similar.

PN1238

How do you know that?---Well, is it or is it not? That's what I just believed, just from what our discussion was, that's really what it was.

PN1239

So you had a discussion with the CA?---No. It was a team briefing. It was a team meeting we had. We have a meeting every day, this was part of the meeting we had during that day. It was just something we'd put together. We just wanted to let people know that the CFMEU were there, and we were only there trying to help to get people there.

PN1240

THE SENIOR DEPUTY PRESIDENT: Who was involved in that team meeting?
---It would have been myself, the CA and the foreman.

PN1241

The CAs name?---Was Howard Lynn.

PN1242

Yes. The foreman, and that's your brother?---There was Darren Fleming, Adam Beard, Ben Spink, I'd say Les would have been there, Les Mozzell.

PN1243

Thank you.

PN1244

MR PEARCE: When was that meeting held, approximately what time of the day?---It was actually I think when we got the fax through.

PN1245

Which was when?---It was about two days prior to they arrived on site.

PN1246

You don't sort of mention that meeting in your statement do you?---No, I don't mention it in my statement, no.

PN1247

And who's idea was it to put the conditional things on the second notice?---I can't really say. It wasn't mine. It was just that that's what was forwarded to me for approval and I approved it.

PN1248

No. But I thought you said there was a meeting where it was drafted?---Yes, that we got something out, right, that we talked about getting things on cars and we talked about where we were going to put it, and we put some names on the list so we could get some names so we could go out on site, if they turned up 10 o'clock, 11 o'clock. We didn't know what time they were turning up.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1249

Sorry, who raised the question of putting these conditions on the notice?---I don't think they were brought up at the meeting, it was just a thing that we brought up, that we'd get a list together to put out on the - to get signed off and as a spread - as a flyer sort of thing.

PN1250

Who produced the document in draft form?---How Lynn did.

PN1251

Am I correct in saying it then went to a meeting involving yourself?---No. It just came to me the following day just for a - he just brought it and just approved it, I just approved it.

PN1252

So the draft wasn't before the meeting that discussed getting a notice out?---No.

PN1253

Well, what was discussed at the meeting that discussed getting a notice out?---Just to get a notice out.

PN1254

No one discussed the idea that it would have these conditional things, is that right?---No.

PN1255

So as far as you know the quality assurance - sorry, I've got that wrong too now - the contracts administrator was the person who drafted this?---Yes.

PN1256

And he gave it to you?---Yes.

PN1257

And you said?---Yes, that's fine, yes.

PN1258

Did you think about it at all, that it was different to the last notice?---I didn't - no, I - yes, well, I knew it was going to be different. Like I said before, the other one was just rush rush to get out so we could put them on the cars so that tell them that the people were going to be there the next day, whereas this one we had a little bit more time to plan something and let people know.

PN1259

Well, did you ask him why does it have these conditional things on it and the last one didn't?---No. I didn't think that they were that bad.

PN1260

I'm not asking your opinion about that. They are in the Act. But you didn't think it was worth commenting on, is that what your evidence is?---No, I didn't.

PN1261

And do you think it was worth commenting on that you were essentially asking people to identify themselves by name, company and whether they were a member of the union or not?---Well, I had to know who they were so we could go get them, and what company they were working for.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1262

Do you need to know their union membership number to go and get them do you?---Well, that's right. That's why we've got the name and company there, so I could - if it was, say Classic Tiling, I knew where Classic Tiling were working and I could go up and say is this bloke here?

PN1263

You see, on a fair reading of this form, if I was Jim Pearce and I worked for Classic Tiling but I wasn't a union member - - -?---We're not asking if you had to be. To me I didn't think if you did or if you didn't. I was just trying to add a little bit of information I suppose to it that I thought, you know, that was relevant to sort of going to get him.

PN1264

You see, if I didn't know whether I was covered, I might be curious to find out whether I was covered by a collective agreement. If I didn't know how could I go Y or No?---I don't know. I can understand, but I didn't see anything to it.

PN1265

Can I suggest to you that it's a much more restrictive notification than the earlier notification in the way it's drafted, do you agree with that?---No.

PN1266

I see. And that on a fair reading of it, it was designed to be less encouraging of people going to a union meeting than, say, the previous notice had been?

PN1267

MR COLEMAN: Well - - -

PN1268

MR PEARCE: I'm suggesting that to him.

PN1269

MR COLEMAN: Well, I object.

PN1270

MR PEARCE: Well, I'm going to make a submission.

PN1271

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Coleman?

PN1272

MR COLEMAN: The witness has answered a series of questions on this document, he's made his position absolutely clear. What he would do if he was sitting in your position and deciding what the intent was isn't - - -

PN1273

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1274

MR PEARCE: Your Honour, he approved the document.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1275

THE SENIOR DEPUTY PRESIDENT: I think Mr Coleman is right, at the end of the day it will be me who is deciding whether it's less encouraging or not.

PN1276

MR PEARCE: Yes, your Honour.

PN1277

Now, what did you do with this document? I think you said you put it by the sign on book?---Yes. I'm pretty sure it was also sent out too, like, we did a flyer on it and we actually sent it to the foreman or whoever was running, like, each trade, so it was just sent out there.

PN1278

But you didn't put it on cars did you?---On cars, I don't think we put it on cars this time. I think the only one we did before was on cars. The only reason we put that last one on cars was because of the short period of time we had, so we wanted to let people know straight away. So, like, this one here we had a lot more time, a full day to tell people.

PN1279

But you put it next to the sign on book on the actual - - -?---On the day, yes.

PN1280

On the day, yes?---Yes.

PN1281

Shorter notice than putting on a motor vehicle the night before isn't it?---No. But we had the document drawn up the day before so we had all that day. We got it out to the foreman and out to other people.

PN1282

Right. Now, I think we were talking about - and I cross-examined you at length about what happened when Mr Lane first arrived and Mr En Won first arrived at the site on 16 May. Can I suggest to you that at the end of the conversation when Mr Lane indicated that he was going to do an inspection that - or wanted to do an inspection, that you contacted Les Mozzell?---Yes.

PN1283

And you got him to come down?---Yes.

PN1284

And you introduced Mr Lane to Les Mozzell?---No.

PN1285

And Les said you don't have to - words to the effect - you don't have to introduce Mick Lane, I met him last time?---No. He left the office before even Les got down there.

PN1286

Can I suggest that you handed Mr Lane, if I can use that term, Mr Lane and Mr En Won over to your brother Mr Les Mozzell?---No.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1287

So what do you say happened then?---They just got up and left. I was actually - they just said, well, then it looks like we're going to have to do a site safety inspection, and they just got up and left, out the office.

PN1288

I see?---Because I never spoke to Les to say come down and take them because they were just getting up and going.

PN1289

Well, can I suggest that in fact what happened was that you passed them on or handed them over to - - -?---You can suggest. It didn't happen.

PN1290

Well, one of the reasons I'm suggesting it is it's what Les said happened?---I don't recall him, like, sending them over at all. They got up and left my office.

PN1291

Now, what happened next that involved you in relation to this inspection, do you remember?---To the inspection?

PN1292

Yes?---I got a phone call from Les saying you better get up here, they're just talking to the tilers, they're not doing the site safety inspection at all, they're just talking to the tilers.

PN1293

Okay. Did you say anything else to Les in that conversation?---No, just mainly just to get up here. Just hung up and I ran up on the site.

PN1294

So you didn't suggest to him at all that they'd broken the rules or something like that?---Yes. Well, I said that they weren't supposed to be talking to the tilers, they were supposed to be just doing a site safety inspection.

PN1295

So you said something more?---Yes.

PN1296

Well, why did you just a moment ago say no when I said - - -?---Well, it was really just short and - Les just sort of - we were on there for about 15 seconds - better get up here. You asked me if Les said something to me, so that's what you asked me.

PN1297

No. I asked you did you say anything more to Les?---More to Les? Well, I virtually said they weren't - they were not supposed to be there, they were only supposed to be doing a site safety inspection and that was it.

PN1298

I mean, you don't, as you sit in the witness box you don't really have a very good memory at all about what happened on that day do you?---Fourteen months ago.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1299

The answer's yes isn't it?---Yes, on things, yes.

PN1300

Thank you?---Some things I'm dead sure that I know what happened.

PN1301

And so to the extent that some of the evidence you've given is different from what's in your statement?---I'm only telling you how I see it as I'm sitting here.

PN1302

Yes. Your memory of the events may have changed mightn't it?---It could do.

PN1303

And in fact you probably - your memory's not very reliable any more about the events on 16 May is it, as you sit in the witness box?---No, I wouldn't say that, no.

PN1304

You say it is reliable do you?---Yes, I think it's reliable in most things, yes.

PN1305

Most things about 16 May, is that what you're saying?---On 16 May?

PN1306

Yes. How's your memory about 16 May?---It's good.

PN1307

Good, okay. Now, you in any event went up to where Mr Lane and Mr En Won were didn't you?---Yes.

PN1308

You never saw them talking to the tilers?---En Won was in - as I got up there En Won was in speaking to the tilers, he was in the same room as the tilers.

PN1309

Are you sure of that?---Pretty sure.

PN1310

You've said he was in the same room?---Because En Won - - -

PN1311

The question I'm asking you is, are you sure he was talking to them?---No, I couldn't say that, yes, I was 100 per cent positive that he was talking to them, but he was - - -

PN1312

You can't give evidence one way or the other as to whether Mr En Won spoke to the tilers can you?---I can't, no.

PN1313

And similarly you can't give evidence one way or the other that Mr Lane spoke to the tilers can you?---I didn't see Mr Lane speaking to the tilers.

PN1314

Well, you didn't see Mr En Won speaking to the tilers either?---Well, he was in the room, I couldn't see actually see in the room what he was doing. Mr Lane was standing at the doorway.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1315

All you know about what happened was what your brother told you isn't it?
---With talking to the tilers again, yes.

PN1316

Now, you didn't say anything did you to Mr Lane or to Mr En Won that they can't - when you got up there, that they can't talk to the tilers did you?---Yes, I did.

PN1317

And I suggest you didn't?---You can suggest it, but I actually - that was the first, one of the first things I said to them.

PN1318

You see, what you said to them was get off the job or I'll call the police?---No, no. Is that all I said?

PN1319

That's what I'm suggesting?---No, no.

PN1320

And then can I suggest to you that Mr Lane said you are not leaving the job until I finish the safety inspection?---He hadn't even started. The thing was he was on level 7 - - -

PN1321

Excuse me, you've just said he hadn't even started?---No, not that I - - -

PN1322

How do you know that?---Because when he sent through the site safety inspection he actually started the site safety from where he was standing. He didn't - if I did a site safety inspection I wouldn't go right to the top and then work my way down. I'd work my way through the building to make sure that things were safe in front of me.

PN1323

I'm just asking you, how do you know he hadn't even started the site safety inspection?---Well, what I gathered, he did.

PN1324

You wouldn't have known one way or the other where he'd been in the last 20 minutes or so would you?---No, I didn't. It wasn't 20 minutes.

PN1325

Well, what prompted you to say he hadn't even started the site safety inspection when you just gave that evidence?---Because when I got up there there wasn't - the way that you do a site safety inspection, like, it just wasn't happening. To me, what I seen, he wasn't doing a site safety inspection. If I - if he did a site safety inspection properly he wouldn't have done it the way he did it.

PN1326

I see. But you don't even know where he'd been did you?---He went straight to level 7.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1327

Yes. But apart from that you didn't know where he'd been on level 7 did you?
---No.

PN1328

You didn't know if he'd been on level 6 did you?---No.

PN1329

You didn't know if he'd been on level 5 before he got to level 6 did you?---Yes, well, it's a pretty big building to get to level 7 where he was in the time that he did. If he went through levels 5 and 6 in that short a period of time he didn't look - he wasn't doing a site safety inspection.

PN1330

I see. But the truth of the matter is that you don't know what he did in the time after he left the site induction office?---No, I don't.

PN1331

But you were prepared to express an opinion that he hadn't done it?---Yes.

PN1332

He hadn't begun his site safety inspection?---Yes. That's what I thought at the time, yes, it was.

PN1333

Mr Mozzell, you're very defensive in your evidence, do you agree with that?
---Yes.

PN1334

And can I suggest to you that you're defensive in your evidence because you're nervous about the state of the paperwork on that site at Mount Panorama?---No.

PN1335

Let me finish. At Mount Panorama as it was pointed out to you by Mr Lane on
19 April?---Definitely not, definitely not.

PN1336

I see. And you're defensive to defend your conduct as the site manager there?
---No.

PN1337

And for that purpose you're trying as best you can to cast Mr Lane and his conduct in the worst possible light?---Conduct?

PN1338

Yes?---No, I'm not. I actually - if you looked at the things that I did, I was trying to help him. Then they come onto site and then yell and screaming and accuse me of everything else, of course I got upset, very upset. I even said to Mick later on, you know, I wish it never ever turned up like this. It could have been dealt with a lot better.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1339

You felt your authority was being challenged or something like that?---Not authority. It was just that I had two people there yelling at me, one trying to - like, trying to talk to Mick, En Won's there calling me a liar and calling me a bloody scum and all the rest of it, of course I was going to get upset.

PN1340

Sorry, where did he call you a scum? I don't think it's in the statement?---There's things that he did. He threatened me, he did everything.

PN1341

Sorry, where did - - -?---It's not in the statement.

PN1342

In your statement I don't see you saying that he called you a scum?---Well, he mightn't have called me a scum.

PN1343

So you withdraw that to you?---No, not to the words a scum, but to the words that, you know, that I was shit anyway, and that's how I felt.

PN1344

Where do I see him saying that you're a shit or something like that?---Look, I was talking to Mick a lot of the time and he's standing beside - behind me, so I said, look, go away from me so I can talk to Mick.

PN1345

I see. But you agree with me he never called you a scum?---No, not to the words a scum, no.

PN1346

And where do I find in your statement the suggestion that he called you a liar?
---He called me a liar. It's not in the statement, but he called me a liar.

PN1347

Well, why didn't that get into the statement? I mean, the Building Construction Authority never fails to put those sorts of things in if they're told to them?---Look, mate, I was there for a full day doing that statement and, I tell you, by the end of it I was just as frustrated, and all the things that have happened, there's a lot of things I, you know, later on that happened that, you know, I forgot to put in there.

PN1348

See, can I suggest to you that you're just making a lot of this up as you go along because you're frustrated - - -?---Why? Why would I want to make it up?

PN1349

- - - by the questions you're being asked?---Why would I want to make it up?

PN1350

Because you're on the defensive about the state of the paperwork at the site after Mr Lane pointed it out to you?---No, definitely not. Definitely not.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1351

I suggest that?---No, no.

PN1352

I see. Now, anyway we're back up on the 7th floor then I gather?---Yes.

PN1353

And Mr Lane said to you "I'm not leaving the job until I finish the safety inspection"?---Yes.

PN1354

And you said to him "I want to see your right of entry permit"?---Yes.

PN1355

That was the first time you'd asked him for his right of entry permit wasn't it?
---Yes, when I got to level 7, yes.

PN1356

You hadn't asked him for it when he came onto the site?---No, because I didn't know about it by then.

PN1357

You hadn't asked him for it when he said he'd wanted to do a safety inspection?
---No.

PN1358

And can I suggest to you not surprisingly he didn't have it on him since you hadn't asked him to produce it at any earlier time?---No.

PN1359

You weren't surprised he didn't have it on him did you?---I don't know. I didn't even know - it was only that I rang the MBA, a builder from the MBA, and he said that they should be producing these documents. That was the first time I ever knew about it. That's why I wrote it down and I took that piece of paper up on site with me and I asked those questions straight away to Mick.

PN1360

Are you telling me that you didn't know that you could require him to produce a right of entry until you spoke to the MBA?---No. No, I didn't.

PN1361

I see. But in the notice you've gone to the very provisions of the Act that deal with right of entry haven't you, for the meeting?---Well, we virtually - on the note we just took off what was on the right of entry.

PN1362

Yes. And if one looks at the notice it's an entry notice isn't it?---Yes.

PN1363

Have you got a copy of it?---The right of entry notice?

PN1364

Yes. Can I show you a copy of it? I mean, you read this didn't you when you got it?---Yes.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1365

It was very exciting. Anyway. I'm showing you one for Michael Lane. You see it says "I Michael Lane of the Construction, Forestry, Mining and Energy Union having been issued with a right of entry permit in accordance with" et cetera. So you knew at least Mr Lane asserted he had a right of entry permit?---I thought that's what that was.

PN1366

I see. When you read it you thought that was the right of entry permit did you?
---Well, I didn't know what an entry permit was.

PN1367

You see, because it's called an entry notice isn't it?---Yes. Well, I still didn't know what an entry permit was.

PN1368

I see. Can I have that back thanks? Can I suggest to you that you knew at least by 16 May that Mr Lane had a right of entry permit?---No.

PN1369

Because you read it in that notice?---No.

PN1370

And that you knew at least by 16 May that you could ask him to produce that right of entry permit?---I didn't know what an entry permit was, truthfully I didn't know what an entry permit was until after that.

PN1371

I see. And in any event Mr Lane said to you "Mine's in the car, I'll go down to the car and get it right now"?---Yes.

PN1372

He said that?---Yes.

PN1373

And he said to Mr En Won, this is Mr Lane "Wait here for me, I will go and get it," he said that didn't he?---I said "Well, go get it." He didn't go get it, he stayed on level 7.

PN1374

Now, you said to him it's too late now, that's what you said to him wasn't it?---No. I asked him - he didn't even go. He wasn't going to show me anything, didn't do it, so I just said I was going to go and call the police.

PN1375

I thought you just agreed that he said to you "Mine's in the car and I'll go and get it"?---He did say it was in the car. No, he said it was in the car.

PN1376

Yes. And when you agreed and he agreed - - -?---Well, he didn't go get it right now did he?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1377

He said to you "I'll go and get it right now," didn't he?---Well, he could have walked down with me, he didn't, he stayed on level 7.

PN1378

And you said to him it's too late. That's why he didn't walk down isn't it?---He just - he didn't do anything, he just stood there.

PN1379

And off you went, you stormed off?---Bloody oath I did.

PN1380

Yes. And you said it's too late, and you stormed off?---I don't think I said it was too late. He just didn't do anything, they just stayed there.

PN1381

I see. And you went back down the stairs and left your brother Les with Mr Lane and Mr Lee, is that right?---That's right, yes.

PN1382

And then so Mr Lane and Mr Lee proceeded to complete their safety inspection of the building?---Yes.

PN1383

And can I suggest to you, and everybody heard it, but that Les was shouting at them as they went along?---I don't know, I wasn't there.

PN1384

I see. And throughout the inspection he wrote in his safety rectification book, is that right?---Yes. I got a copy of it when they finished.

PN1385

And the safety walk took about 15 to 30 minutes?---Yes, that's - if it was a proper safety walk, it's a building seven stories - - -

PN1386

I'm not asking you for your opinion. The question I asked you was, it took about 15 to 30 minutes didn't it?---Yes. It wasn't long.

PN1387

Yes. And at no time during that safety walk did you again ask him to go and get his right of entry permit?---I didn't - hardly speak to him for a while until he came down. The police were on their way, I thought we'll leave it at that and wait till the police get there and they can sort the matter out.

PN1388

That's because you'd stormed off hadn't you, as you agreed?---Yes. I went down and called the police.

PN1389

Now, after the safety walk had been completed Mr Lane and Mr Lee arrived back at the site office and the main gate?---Yes.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1390

You were there with a number of other Kell and Rigby employees and you were waiting?---Yes.

PN1391

You didn't ask for his right of entry then did you?---No. All I'd say was - all that happened so I called the police, so I'll just wait for them to turn up and they can go through this bits and pieces then.

PN1392

I see. And then he was down near his car now wasn't he? You could have asked him to get his right of entry?---It was all too late, like, the things that had happened, I was pissed off. The way that things had happened up there and how things were carried out to me wasn't - like, I showed him courtesy and there was no courtesy shown to me so I was really pissed off.

PN1393

I see. Well, you didn't show him courtesy when you stormed off when he offered to go to the car and get his right of entry?---Of course I didn't. Like, you know, they were just playing the game, they were just there smoking and talking between themselves, and I'm trying to get information and they just didn't care, they were just going to stay, I'm going to do this and that's all there is to it.

PN1394

I see. So your view was that they were just playing a game?---They were.

PN1395

I see. What was the game they were playing?---God knows. Like, it's just, you know, to me they were there to do a site safety inspection that was just not really what they were there for. Like, if they wanted to do a site safety inspection they'd be there all day.

PN1396

Well, let me say this. That was a view you held almost from the moment the site safety inspection was requested wasn't it, that they weren't there to do a site safety inspection?---If Mick wanted to do a site safety inspection I would have bent over backwards.

PN1397

I'm not asking what you would have done. Can you answer my question please? That was a view that you held from the time that Mr Lane asked to do the site safety inspection?---I was all for it, I said to him he can go, go with Les.

PN1398

I see. You didn't ask him for his right of entry then?---I didn't know about it then.

PN1399

I see?---It was only when he left the office that I rang, because I was on the phone with Robert, and he virtually said ring Bill. I spoke to Bill and Bill said to me that these are the things that you need to ask for. So between that time that they were out walking on - like, left the office and started walking on site that was when I was on the phone, and as soon as I got off the phone with Bill I put it down and the phone rang, Les said that they were up talking to the tilers, and I left and went straight up.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1400

And what did Bill tell you you should ask for?---The right of entry, and if they were doing a site safety walk what was the breach?

PN1401

I see. Have a look at paragraph 33 of your larger statement 2A.

PN1402

THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph?

PN1403

MR PEARCE: Paragraph 33?---Yes.

PN1404

So you don't mention in there what Mr Potocki told you do you?---I wrote it down on a piece of paper and it's at the back.

PN1405

And you then spoke to a Mr Trevor Young at the - - -?---Afterward, after. I didn't speak to him when that all happened. I actually rang him after it all - then when they - - -

PN1406

That's right, because when you tried to attempt - sorry, that's right, yes. But you see you used the words there "explained what action I could take"?---Yes.

PN1407

You see, that was because you contacted Mr Potocki because you wanted to take some action to stop the safety walk?---No, I never. I didn't know what to do. I was told by Robert Commbe to ring Bill to find out what I had to get and what had to be done.

PN1408

No. You've used the words "explained what action I could take," haven't you?
---Yes, well - - -

PN1409

You see, and can I suggest you used those words because you rang Mr Potocki to find out what action you could take to stop the safety walk didn't you?---No. Why would I do that?

PN1410

Because you had your nose out of joint about the fact that Mr Lane and Mr Lee were doing a safety walk didn't you?---No. I've got no problem with them doing a safety walk at all.

PN1411

Well, why did you want to know what action you could take? They're the words you used?---At the time they weren't doing a safety walk, they wanted to go and talk to the bloody, to the subbies.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1412

No, I'm sorry. Look, you didn't become aware they were talking to the subbies until after you spoke to Mr Potocki?---I knew exactly what they were going to do. When I was sitting there and I was talking to them they said, well, it looks like we're not going to get any cooperation here, we'll have to do a site safety walk. I knew then that they didn't really want to do the safety walk, they wanted to go talk to subbies.

PN1413

I see. Well, you've just answered yes to a question that you answered no to a moment ago?---What was that?

PN1414

Can I suggest to you that you rang Mr Potocki to find out what action you could take to stop them doing a safety walk because - - -?---No, not for a safety walk.

PN1415

- - - because you suspected that they just wanted to talk to subbies?---No. No, I didn't.

PN1416

I'm sorry, isn't that the evidence you've just given?---Not for a safety walk. If they wanted - like I said, if they wanted to do a safety walk I'm not going to stop them to do a safety walk. If there was a breach there about something that was unsafe I'd want to know about it too.

PN1417

And can I suggest to you that as soon as you found out that you could ask for a right of entry permit and that they had to - you were told that they had to particularise the safety breach, you charged up there determined to kick them off the site, isn't that right?---No.

PN1418

And that's why you said to Mr Lane words to the effect that it was too late now?
---No. The reason I charged up there was because I'd been phoned up and told that they weren't doing a safety walk, they're actually up there talking to subbies, so that's why I ran up there.

PN1419

I see. So why were you concerned about that?---Because they're not - they're just disrupting the site. All they were doing was disrupting the site.

PN1420

Look, why were you concerned about them talking to subbies particularly?
---Because I wanted to get the building done. I'm employed to get a job done, and to go up there and just stand around and talk. I'd organise something if they wanted to talk to them, to come down off the job and go through. I've got - I had another bloke walking around with them when I didn't have to, I could have had him doing something else.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1421

You went up there to stop the safety walk, that's correct isn't it?---No, no. I just told you that I didn't.

PN1422

Look at paragraph 35 of your statement. Do you see there where Mr Lane said it's in the car?---Yes.

PN1423

You said "Well, I want you to leave the site"?---Yes.

PN1424

You never gave him a chance to go to the car and get his permit did you?---Well, he didn't say that he was going to go down and get it either. To me it was - - -

PN1425

Can I suggest to you he did, but you weren't interested in whether it was in the car or not. You just wanted to get him off the site didn't you?---Too many things that happened that he was saying he was going to do and he never done. So to me just to say it was in the car was just another yes, you know. I'm still - he didn't want to get off level 7, he wasn't going to go anywhere.

PN1426

Well, how did you know that?---He virtually said he was just going to say there. He didn't move, he didn't say nothing, he was just sort of sitting there, standing there, just didn't care.

PN1427

Well, you stormed off. You've already given that evidence haven't you?---Well, too late, of course.

PN1428

That's right, too late. That's what you said to him, too late, wasn't it?---No. They were your words actually.

PN1429

Well, you just said them then yourself?---Well, I didn't say it though, I didn't actually say it to him.

PN1430

Well, why did you say then too late?---Well, he was up there. Do you think that all that happened in just one minute? It didn't. We moved from one room, we went into 701, we stood there, we moved away from - Mick was in there talking to me, he wasn't going to go anywhere. We just left that room and I went off.

PN1431

Well, I'll just suggest it to you finally, you went up there with the intention of ending the safety walk because you had your nose out of joint?---No, that's not true. No, that's not true. If he wanted to do a site walk I wouldn't have invited Les to come down and go through with him because it was a waste of time. I would want to know - Les, to see what breaches that we had so we could get them fixed.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1432

I see. Did you say that to Les, see what breaches we've got and let's get them fixed?---Well, I don't know what words I put, but that's why I wanted him to go with him.

PN1433

There's nothing in the statement about that I must say?---Well, there's a lot of things that aren't in the statement.

PN1434

No, that's right. Can I suggest it's because you're making a lot of things up in your evidence now?---No, I'm not making this up. I've got no reason to make anything up.

PN1435

Well, you're on the defensive aren't you?---Of course I am.

PN1436

And you're on the defensive because at the time Mr Lane had pointed out to you all the problems you had with the paperwork on the site didn't he?---No. I didn't have any problems with the paperwork on site.

PN1437

You don't think it's a problem that there's no notation of a green card entry on the induction do you?

PN1438

MR COLEMAN: Well, in view of the evidence that's an unfair question in my submission because the witness has made it absolutely clear that that's the photocopy of the front page of a bundle - - -

PN1439

THE SENIOR DEPUTY PRESIDENT: Yes. I think we've been over this enough Mr Pearce.

PN1440

MR PEARCE: Thank you, your Honour.

PN1441

Now, can I suggest to you in any event that Mr Lane and Mr Lee arrived back at the main site office and the main gate after about 15 or 30 minutes?---The main gates, yes.

PN1442

And you were there with a number of other Kell and Rigby employees?---Yes.

PN1443

Do you remember who they were?---No, I can't. It was actually not only Kell and Rigby employees, it was subbies and everything though, but it was a big show and some of them were just coming down to see what was going on. I was virtually standing on the road waiting for the police.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1444

Well, why were they coming down to see what was going on? Were you yelling out or something?---I did, I did.

PN1445

And Les was yelling out too wasn't he?---I don't know, I couldn't hear Les. Like, it's a big building.

PN1446

I see. And then when Mr Lane got down there you said to him "I can't wait for the police to get here"?---Actually I don't think I said much to Mr Lane at all, in other words that I was just disappointed on how it ended up.

PN1447

Can I suggest you said "I can't wait for the police to get here"?---I don't think I did, I don't think I said them words. I'd calmed down a little bit by then.

PN1448

And Mr Lane said to you "Are they really coming?" do you remember that?---No.

PN1449

And you said "Yes. I've also contacted head office and I've sought advice from the MBA and the ABCC, and you're out of line"?---I told him that when I was up on level 7.

PN1450

You told him when you were up on level 7 that you'd spoken to the MBA and the ABCC?---No, I didn't say that I spoke to ABCC. I said that I needed to contact the ABCC, otherwise I will contact the ABCC.

PN1451

Where do I find that in your statement?---If you have a look at that piece of paper that I wrote, those are some of the things that I wrote on it, but those are the things that came up in that telephone conversation when I spoke to Bill and Robert Commbe, and like I said before, I never spoke to the ABCC until after Mick left.

PN1452

I see. But you've just agreed with me that at some stage you said to him that - I think you did anyway - that you'd sought advice from the MBA and the ABCC and he was out of line?---The MBA, not the ABCC.

PN1453

I'm sorry, you must have misheard my question. And he said "We have a right to speak with workers with respect to occupational health and safety"?---Yes. That was also done up on level 7.

PN1454

Yes, that's right. And he said at any rate it was their own lunchtime?---They were working. How could it be their own lunchtime?

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1455

Well, I'm asking you, he said to you it was their lunchtime didn't he?---No. That's why we did the documents so that, you know, we could work it because they weren't at lunch. If they weren't at lunch we could have went and got them.

PN1456

I see. And he also said he wouldn't be leaving prior to the police getting there?
---He said that, yes.

PN1457

Now that you've called them?---Yes. He mentioned that his solicitors sent something through to the Bathurst Police Station.

PN1458

Did he?---Yes.

PN1459

Now, can I suggest this to you? When you went up to level 7 you weren't there for very long?---No.

PN1460

And you had a short conversation with Mr Lane?---Yes.

PN1461

And you were focused on Mr Lane while you were up there?---I couldn't speak to En Won. En Won just yelled and abused me, so why would I speak to him?

PN1462

And you didn't really at any time observe what the tilers were doing did you?
---They were working in 702.

PN1463

No. But did you see what they were doing?---Yes. They were tiling the bathroom floor, the laundry floor.

PN1464

Can I suggest that they were just sitting on boxes?---I don't know. Not that I seen when I got up there.

PN1465

You don't know what they were doing?---They were working when I got up there.

PN1466

What were they doing?---I thought I just said, they were tiling the laundry floor in 702.

PN1467

What, were they on their hands and knees?---They were standing at the door when I got there.

PN1468

Yes. You didn't actually see them working did you?---Well, they had all their work gear on, they had their knee pads on.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1469

Can I suggest to you that Mr Lane says that when he came across them they were sitting up there and they were having lunch?---Could well have been, I don't know.

PN1470

That's right?---I'm only just saying what - you asked me what I saw, and that's what I saw.

PN1471

You didn't see them actually working did you? You just saw them dressed like they were ready to work?---No. It looked like they were working to me.

PN1472

Well, what were they doing if you said they were just standing in the doorway?
---Well, they were working. What do they got to do? They're tiling. Like, they had machinery there and everything else.

PN1473

Were they operating the machinery?---They were standing at the doorway with them.

PN1474

Well, that's your evidence. Your evidence is that they were standing at the doorway doing nothing, is that right?---I thought they were working. To me they looked like they were working.

PN1475

Well, can I suggest to you that your evidence is that at that moment they were standing at the doorway doing nothing?---Are you asking me?

PN1476

Yes, that's what you saw wasn't it?---Well, no. Someone was in there working.

PN1477

Well, what was he doing?---There was - how many of them was there? There was about four or five of them there, and they were all, like, to me - when I went up there and I looked in there Mick's standing at the front door, there was someone in the laundry. So why would they be standing in there otherwise that they'd be working.

PN1478

You said they were all standing in the doorway before. That's your evidence?---I just said to you that they were there, they were working. Mick, was standing at the front of the door, En Won was inside it, he was inside the room. What I could see, they were working in the laundry.

PN1479

I see. But you can't - - -?---I didn't go in there and I didn't go round and go what are you doing mate? It was a different matter. I was up there for something else, not just - - -

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1480

That's what I'm asking. I'm really asking you what you saw, not what you presumed?---Well, that's what I saw, and what I believe what I saw was that they were working in that room.

PN1481

And what did you see them doing?---Tiling the floor of the laundry.

PN1482

What equipment were they using?---What tilers use, tiles.

PN1483

Were they on their knees, were they standing up?---Yes. One had knee pads on.

PN1484

Were they on their knees?---I didn't go right in the room. If you could actually see how the room was, there's a door, then you go inside and there's another door and there's the laundry inside there. It's not a real big room, so I can't see why they'd all just gather in there and just have a chit chat.

PN1485

You mightn't be able to see it, but you'd have to concede it was possible they might have gathered in there to have their lunch wouldn't you?---Why? No, I don't. I'm just - that's what I believed, they were there working.

PN1486

I know it's what you believe, but really what the court needs to have is - - -?
---Well, the only time that it's ever been brought up that, you know, they weren't working. Yes, I always believed that they were working in there.

PN1487

Well, can I suggest to you that Mr Lane said to you that they were having lunch?
---He can suggest that, but I don't believe it.

PN1488

Can I then suggest to you - sorry, we're back now at the gate, and Mr Lane said to you he wouldn't be leaving prior to the police getting here now that you've called them. Do you remember that?---Yes.

PN1489

And then your brother directed a comment to Mr Lee and he said "You go and stand over there"?---Yes, well, true, yes.

PN1490

Thirty metres away?---Thirty metres away?

PN1491

The tree was 30 metres away?---No, no.

PN1492

How far away was the tree about?---Five metres away.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1493

I see. Why did he tell - well, you don't know?---Why did he tell him? I can tell you exactly why he told him.

PN1494

No, I don't think you can. Were you surprised by that comment?---I was trying to talk to Mick and I told En Won to shut up because En Won was coming over the top yelling and screaming, and then Les come and said just go over and stand by the tree. Because I couldn't talk to Mick. Mick was being - like, he'd talk to you, but En Won wanted to just yell and scream at you.

PN1495

I see. And you said to En Won something to the effect of do not go away, stand under the tree and do not go away, is that right?---No. I just told him to move away so I could speak to Mick.

PN1496

And Mick said something to En Won didn't he?---Yes, he just told him to be quiet.

PN1497

He told him to tone it down?---Yes, he did.

PN1498

He said we'll wait for the police?---Yes, he did.

PN1499

But he said but do not go away, stay here in other words?---Yes.

PN1500

Your brother then - Les then said to Mr Lee "Shut up"?---Yes, he did.

PN1501

And again Mr Lane said to Mr Lee to tone it down?---Mr Lee was being - - -

PN1502

No, could you just answer my question? Mr Lane said to Mr Lee tone it down?
---No.

PN1503

I see. So he only said it once did he?---What, that - - -

PN1504

He only said to Mr Lee once to tone it down?---Tone it down?

PN1505

Yes?---It was still - I was still trying to talk to Mick and he was still yelling and screaming. He said it to him but I don't think it worked.

PN1506

And then you - - -?---That's when I moved away.

PN1507

And then you said to Mr Lane "I don't have a problem with you Mick, but I have a problem with En Won Lee"?---Yes.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1508

And that was the truth of the matter wasn't it, you didn't have a problem with Mr Lane?---Yes, it was. No, Mr Lane had been courteous up until then.

PN1509

And there was nothing Mr Lane had done on the site that caused you any concerns up until then?---Only that he sort of just left and just went and done his thing without sort of cooperating and working in with everyone.

PN1510

Well, can I suggest to you that Les, your brother Les gives evidence that you introduced him to Les and that Les took them off on the inspection. Have you forgotten that?---No, I can't recall that, no, I don't.

PN1511

All right. But of course if that were the case then you'd have even less complaint about Mr Lane's conduct on the day wouldn't you?---If he did what he said he was going to do, I had not complaint about it, no.

PN1512

I mean, you don't suggest that Mr Lane spoke to the tilers do you?---He did speak to the tilers.

PN1513

Well, you didn't hear him speak to the tilers?---So he was just standing up in the same room just standing in front of them?

PN1514

Yes?---And I actually know he did because I asked Mr Dong Lee afterwards did he speak to them, and he said yes. And I asked him what did they ask for and all sorts of things.

PN1515

I suppose you'd be surprised to know that Mr Dong Lee has given a statement that Mr Lane didn't speak to him?---Really?

PN1516

Yes?---Well, that's a surprise. That is a big surprise.

PN1517

Well, there you are. Anyway, now we're still back down at the front gate. And after Mr Lee was told to go over and stand by the tree, Mr Lane said to you "Look, En Won Lee is an authorised officer, but he will tone it down," Mr Lane said those words to you?---I don't recall those words.

PN1518

And you then allege you'd been threatened by En Won Lee?---Yes.

PN1519

And Lane said "Well, this is rubbish," the statement that he said to you "it was nothing more than a statement about the way he was being treated today on this job," and he said to you "stop trying to make a storm out of a teacup"?---I wasn't making no storm out of no teacup.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1520

No. I'm telling you Mr Lane said to you "stop trying to make a storm out of a teacup"?---How was I doing that?

PN1521

THE SENIOR DEPUTY PRESIDENT: No, that was a question?---No, there wasn't, it didn't happen.

PN1522

MR PEARCE: That's what Mr Lane said to you?---Yes, but - no, I don't think he said that at all.

PN1523

Well, he said to you that Mr Lee made nothing more than a statement about the way he was being treated today on the job, something like that, didn't he?
---Mr Lee was being treated?

PN1524

Yes?---No, no.

PN1525

And then three police officers turned up?---Yes.

PN1526

And you spoke to them?---Yes.

PN1527

And that was out of Mr Lane's earshot?---Yes. And all they did was said that they wanted to speak to Mick Lane alone, and I walked back into the office.

PN1528

And they had a discussion with Mr Lane. You observed that from - - -?---No. I went straight back into the office.

PN1529

You just turned your back did you? You didn't even stop to observe from a distance the discussion?---No. Why should I?

PN1530

Anyway, and then Mr Lane and Mr Lee left the site, is that right?---No. They come back into the office.

PN1531

You say they came back into the office?---Yes. After the police spoke to them Mick and En Won came back into the office and come up and said "Thank you very much." Mick sort of shook my hand, and I said that I wished it never come to this. Then he was walking out, then En Won come over and said "Yes, I'm going to come back and get you. I'll remember your face forever," or those lines sort of thing, and he was going to come back and get me. And that's when I went outside - - -

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1532

And where were the police?---They were outside.

PN1533

So what did you do then?---I went back outside and I said to the police - I had said to the boys - like, he'd said it in front of everyone that was in the office. And then I went outside and I said to the police what he just said. Mick got En Won and dragged him across the road. And I said "Well, now that you want to threaten me you want to take off." And then he just pointed his card at me sort of thing and virtually said that he was going to come back. Then he just got - they just got in the car and left.

PN1534

Well, did you tell the police that you thought you'd been threatened?---I did.

PN1535

Now, you've read the COPS report of this?---No.

PN1536

Well, can I show a copy of the COPS report?

PN1537

THE SENIOR DEPUTY PRESIDENT: Remind me where I might find that.

PN1538

MR PEARCE: It's in my learned friend's bundle. I don't think he's tendered it yet. We were tendering it too so I don't mind if he wants to tender it now. It's in my learned friend's bundle, I think it's almost right towards the back. It's also I think found in Ms Mallia's affidavit.

PN1539

THE SENIOR DEPUTY PRESIDENT: Yes, I have it here.

PN1540

MR PEARCE: Your Honour, the COPS report, the COPS is a computer system of what the police call their computer system.

PN1541

THE SENIOR DEPUTY PRESIDENT: Yes. You're not being disrespectful.

PN1542

MR PEARCE: What do they call it in Victoria, your Honour? I don't know. It's got some other name hasn't it?

PN1543

THE SENIOR DEPUTY PRESIDENT: I don't have sufficient knowledge of the police activities in Victoria.

PN1544

MR PEARCE: Now, you'll agree with me that there's no reference in that report to you alleging that you'd been threatened?---No.

**** EDMUND DAVID MOZZELL XXN MR PEARCE
PN1545

But you reckon you told the police that you'd been threatened?---I did. I spoke to them. I said to them he's just threatened me.

PN1546

I see. Are you surprised there's no record?---Yes, I am actually, quite surprised.

PN1547

Can I suggest that you probably - because you didn't say that to the police? It's a very important matter, you'd think the police would put it in there?---Ask anyone else who was there. I did say it.

PN1548

Well, can I suggest it's an important matter and the police would normally put that in the report?---Bloody oath it should be.

PN1549

Yes. But can I suggest that you didn't ever make that allegation to the police that you'd been threatened?---I said it.

PN1550

I would like to have that back thanks. Thank you, no further questions.

PN1551

THE SENIOR DEPUTY PRESIDENT: Yes Mr Coleman, anything arising?

<RE-EXAMINATION BY MR COLEMAN [3.02PM]

PN1552

MR COLEMAN: Just a few more questions Mr Mozzell. You were asked a series of questions from Mr Pearce after lunch about what was said when you went up to level 7 after your call by your brother?---Yes.

PN1553

And it was put to you, and I think it's in your statement, you asked him to show you his permit?---Yes.

PN1554

And he answered something to the effect of it's in the car?---Yes.

PN1555

Did he then make any offer to go and get it?---No.

PN1556

Thank you. Now, first off this morning when Mr Pearce started asking you questions he asked you a few questions about how these three statements were put together?---Yes.

PN1557

And something to the effect that Mr Lanigan O'Keefe was involved in assisting you putting the first two together?---Yes.

**** EDMUND DAVID MOZZELL RXN MR COLEMAN
PN1558

And then you were asked a question about you subsequently became friendly with him or more friendly or something to that effect?---Yes.

PN1559

And I think you answered a question to the effect that he started to work for Kell and Rigby at some point?---Yes.

PN1560

In relation to the dates of the two statements, the date of the second statement that he was involved in, that is 24 May, are you aware of when he commenced working for Kell and Rigby?---No.

PN1561

Now, you were asked some questions about the induction records, if I could put it that way, that are created and kept by the company?---Yes.

PN1562

And you made mention that the documents that you were shown this morning in the witness box was essentially the front sheet of a bundle of papers?---Yes.

PN1563

What else typically was kept in the following pages?---You've got to do a questionnaire about the site and what we believe and they've got to answer it yes or no or write something in there. There's a - documents, there's usually a photocopy of their green card, there's just other bits and pieces where they've got to sign their safe work method statement, there's just a few sort of documents that are in there that's just only one copy of.

PN1564

And your understanding of the way the inductions were done, was it normal practice to take a photocopy of the green - - -?---It had to be done.

PN1565

Sorry, please let me finish. To take a photocopy of the green card and file it?
---Yes.

PN1566

And to your knowledge was that done in every case or virtually every case?
---Yes, every case, the people while I was there, yes.

PN1567

And you were then asked some questions about - this is in relation to the first visit, that is the one in April, about Mr Lane being given access to the induction records?---Yes.

PN1568

And you said something to the effect that the room had been left in a mess?
---Yes.

**** EDMUND DAVID MOZZELL RXN MR COLEMAN
PN1569

And then in answer to a further question that you had physically gone and looked at the room?---Yes.

PN1570

How far away from your office is the induction meeting room?---About 10, 15 metres away.

PN1571

And could you tell the Commission what you saw when you went?---There was just, like, the folders that we have for our inductions, OH&S, were just laying open. The things were taken out of the folders and they were just stacked and thrown around the table.

PN1572

And you answered a further question from Mr Pearce that led me to understand you said something to the effect that you understood some records were missing?
---Yes.

PN1573

Some original documents were missing?---Yes.

PN1574

What led you to come to that view?---The day of the 16th he was there and he was showing me some files and stuff of, you know, how many people were on site and stuff, and one of them was our original copy of something, and when I mentioned that that was the stuff that's come out of the folder he just closed the book up and put it aside.

PN1575

THE SENIOR DEPUTY PRESIDENT: Did you attend the induction room by yourself with somebody when you went to look at the - - -?---Yes. Les informed me so I just went with Les.

PN1576

Les and the foreman?---No, just Les.

PN1577

Yes, thank you.

PN1578

MR COLEMAN: Now, some reference was made in a question from Mr Pearce to you before lunch about a later occasion when Mr Lane came to the site?---Yes.

PN1579

What's your recollection, that is, after the visit on 16 May, there was mention of a later visit?---Yes.

PN1580

As best you can recall it now what occurred on that visit?

**** EDMUND DAVID MOZZELL RXN MR COLEMAN
PN1581

MR PEARCE: Your Honour, I think I merely asked that there was a visit. I don't think I went into the subject matter. I don't see how it arises. I'm not too fussed one way or the other.

PN1582

THE SENIOR DEPUTY PRESIDENT: I'll permit the questions Mr Coleman.

PN1583

MR COLEMAN: Thank you?---Nothing really, nothing at all. He came in and sat down with me and I just said to him that I wish it had never had gone the way that it did on the day. I don't think it had to go that far. That's about it. It was very non eventual, nothing really happened on the day at all.

PN1584

How long were the two of you talking on that day as best you can recall it?
---Ten minutes I suppose. It wasn't long at all.

PN1585

Now, you've said that on the second visit, that is 16 May, when the two organisers were still down in the office area that you were handed two section 127 - two pieces of paper with section 127 written on it?---Yes.

PN1586

Which I understand puts you on notice that there could be some liability on the part of Kell and Rigby for payment?---Yes.

PN1587

And that you said that when you got hold of that you sought advice, you spoke to other people and, as site manager, put a hold on further payments until the thing was sorted out?---Yes.

PN1588

And eventually you were told by someone that there was no longer a concern, is that right?---Yes, Mick. Mick rang me.

PN1589

And about when was that?---It was a few weeks later, a few weeks later after that.

PN1590

After 16 May?---After, yes.

PN1591

Do you recall whether it was before or after the further time he came on site on the 29th?---No, I can't.

PN1592

It might have been either side of that date?---Yes.

PN1593

Thank you, your Honour.

**** EDMUND DAVID MOZZELL RXN MR COLEMAN
PN1594

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Thank you for your evidence Mr Mozzell, you're excused?---Thank you.

<THE WITNESS WITHDREW [3.10PM]

PN1595

THE SENIOR DEPUTY PRESIDENT: Yes Mr Coleman?

PN1596

MR COLEMAN: Your Honour, our second witness is Mr Les Mozzell. And while we're waiting for him, your Honour, there are two statements have been filed, in the heading dated 23 May, and one dated 19 June.

PN1597

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

<LESLIE MCNEIL MOZZELL, AFFIRMED [3.11PM]
<EXAMINATION-IN-CHIEF BY MR COLEMAN

PN1598

MR COLEMAN: Your full name is Leslie McNeil Mozzell?---Yes.

PN1599

And could you state your address?---(Address supplied).

PN1600

And in 2007 you were employed by Kell and Rigby?---Yes.

PN1601

Is that still the case?---Yes.

PN1602

And you're still working as a foreman on building sites within the group?
---Yes.

PN1603

I'm going to hand you two documents. Mr Mozzell, you'll see that the top one is the larger document of the two?---Yes.

PN1604

And it has a date in the heading of 23 May 2007. Have you seen that before?
---Yes.

PN1605

And the second document is dated 19 June 2007?---Yes.

PN1606

And again you've seen that before?---Yes.

PN1607

Have you read those in recent days?---I have.

PN1608

And do you say the contents of those two statements are true and correct to the best of your knowledge and belief?---Yes.

EXHIBIT #ABCC8 STATEMENT OF LESLIE MOZZELL WITH ATTACHMENTS DATED 23/05/2007
EXHIBIT #ABCC9 STATEMENT OF LESLIE MOZZELL WITH ATTACHMENTS DATED 19/06/2007

PN1609

MR PEARCE: Your Honour, there's some objections to those statements.

PN1610

THE SENIOR DEPUTY PRESIDENT: Same objections on the same basis?

PN1611

MR PEARCE: Yes. There's a lot of opinion objections in relation to these documents. I could probably illustrate it by, for instance, ABCC8. Perhaps if I can illustrate it by ABCC9 as a better example. In paragraph 8 there's a reference for instance to - paragraph 6 sorry - there's a reference to Mr Lane:

**** LESLIE MCNEIL MOZZELL XN MR COLEMAN
PN1612

Mick walked back and forth around the area near the toilets trying to speak to people heading to the toilet block.

PN1613

Now, I don't think this witness can give evidence about what Mr Lane was trying to do. That's an example of the type of objection, opinion evidence, and ultimately your Honour will be guided what he actually saw.

PN1614

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1615

MR PEARCE: So that's one example of the objection that we make. There's the usual hearsay objections, and all of those, your Honour, are to the effect that I just seek a ruling that - and my learned friend has said that they're not pressed as proof of what's said in the conversation but rather that the conversation occurred.

PN1616

THE SENIOR DEPUTY PRESIDENT: In those terms, yes.

PN1617

MR PEARCE: And there's a lot of - in ABCC8 there's a lot of opinion objections taken. I'm just trying to find one. Well, take paragraph 22, it's a fairly good example of the opinion objection. The last sentence where he says:

PN1618

He did not appear concerned about the safe -

PN1619

Does your Honour have that?

PN1620

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN1621

MR PEARCE: Again, I don't think this witness is in a position to give evidence as to what Mr Lane was or wasn't concerned about. And I understand that your Honour has ruled that these are really matters of weight, and I accept that, your Honour, but I don't - I think most of these opinions are just, you know, fairly useless in the sense that they represent when a witness tries to give evidence about what somebody else was feeling or what somebody else was thinking or what somebody else was concerned about. They're really quite - the evidence is of very little value indeed.

PN1622

THE SENIOR DEPUTY PRESIDENT: Yes. Well, unless either of you has a different view I'd rule in a similar way. It will be a matter of weight in respect to opinion. Obviously I'm concerned more with facts than opinion, and to the extent that the evidence relays the terms of conversations, it's obviously evidence directly of what was said in the conversation and not as to the fact of what was being said. Very well. Had you finished with the witness?

**** LESLIE MCNEIL MOZZELL XN MR COLEMAN
PN1623

MR COLEMAN: If I could just have a moment? I don't think I do.

PN1624

THE SENIOR DEPUTY PRESIDENT: That's fine.

PN1625

MR COLEMAN: Would you just turn to the 19 June statement, that's the second and the smaller one, ABCC9, and just turn over to the second page and just read to yourself Mr Mozzell if you would paragraph 7?---Yes.

PN1626

Just in relation to the first line it looks like it's been crossed out and initialled. What's that fourth word? "Lane stopped a something guy"?---Eodo.

PN1627

And who or what is Eodo?---Eodo's a company.

PN1628

One of the contractors on site?---Yes.

PN1629

And what did you mean by using the word guy?---Gentleman, man, one of the blokes there, yes.

PN1630

Did you know him as an employee?---An employee. There's so many guys on site I don't know half of them by their names.

PN1631

But this person you observed you understood to be an employee of this company?---He was an employee.

PN1632

Thank you, your Honour, that's my questions.

PN1633

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

<CROSS-EXAMINATION BY MR PEARCE [3.18PM]

PN1634

What services were Eodo providing? They were a crane company weren't they?
---Eodo?

PN1635

Yes, a crane company?---Yes. They deal with, I think it was excavation, they had a crane there, yes.

PN1636

Yes. And can I suggest to you the fellow that you identified earlier was a crane driver or a crane chaser or somebody like that, somebody connected to the crane?
---Yes.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1637

Now, Mr Mozzell, when did you come to Sydney today?---When?

PN1638

Yes?---This morning.

PN1639

How did you get here?---By car.

PN1640

Did you drive down from Foster?---Yes.

PN1641

And who did you have lunch with?---Ned.

PN1642

Ned, your brother. And what did you talk about?---Fishing.

PN1643

Did you talk about this case?---No, not at all.

PN1644

Not at all?---No, not really.

PN1645

Not really? Well, what did - - -?---Well, all that was said was what's it like? That was all I asked really.

PN1646

And what did he say?---I think we were out there for about 10 minutes I think. I truthfully couldn't really relate to anything really. It was just things like, well, just sort of, just have to sort of wait and see, and sort of he just didn't explain much at all.

PN1647

Did he tell you, you know, sort of some of the questions he was being asked?
---No.

PN1648

What did he say to you?---I just asked him what it was like.

PN1649

And what did he say in response?---I just told you that.

PN1650

You spoke for about 10 minutes I think you said?---Yes. I was there only having lunch for about 10 minutes and we walked back in.

PN1651

Yes. Well, did you talk while you were walking back?---We walked around down the street. No. We were looking for a place to eat. When we found somewhere we sat down and had something to eat and I asked him what it was like. He said you'd have to wait and see, you have to go in. That was pretty much all that was talked about really.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1652

I see. He didn't tell you anything about questions he was asked about?---No, I didn't explain. I didn't ask any questions or anything. I got everything that I said here.

PN1653

All right. Now, you've made two statements, one on 19 June and an earlier one on 23 May?---23 May.

PN1654

The first one you made to Anne Symonds, is that right?---Yes.

PN1655

The second one you made to Chris Grant, is that right? Now, when you made your statement to Ms Symonds did you tell her everything that happened on
19 April 2007?---I'm sure I did. I'm sure I went into most of it. Like I said, it's over a year ago, I can't exactly say everything that I said. Like I said everything that I've said is down on here in these two pieces of paper.

PN1656

I suppose that's an extract. Is everything that you told her, did it all make its way into the statement?---I presume so.

PN1657

Did you ever check?---Check? I read through it, yes.

PN1658

But did you check that everything that you told her had come through in the statement?---Everything that I - that's in these statements is what I said, yes.

PN1659

I know everything that's in your statement is what you've said because you've signed it. What I'm saying, is that is everything that you said in the statement?
---Everything that I said's in the statement that I've got here.

PN1660

Yes. You understand the distinction don't you?---No, not really.

PN1661

You've told me everything that's in the statement you said?---Yes.

PN1662

Because you signed it. Now what I'm asking you is, is everything that you said to her in the statement?---Yes.

PN1663

There's nothing been omitted that you can recall?---No, everything's in the statement.

PN1664

Well, is the answer yes, that you're satisfied that everything you told her made its way into the statement?---To my knowledge, yes.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1665

Well, it is to your knowledge because you're the, apart from Ms Symonds, you're the only person who has that knowledge. So your evidence is that everything you said to Ms Symonds is in the statement is it?---Yes.

PN1666

Right. Now, everything that you said to Mr Grant, did that go in the statement as well?---Yes. Well, everything that I said to Mr Grant, yes, pretty much went in the statement. Like I said, can you remember what you did 12 months ago word for word?

PN1667

Well, if you just answer my questions we'll go a lot more quickly instead of asking questions. But can I suggest to you that you didn't write these statements 12 months after these things happened did you? Isn't that right? I mean, you made a statement on 23 May, which is only a few days after it happened?---Yes, that's right. I'm talking about now.

PN1668

I see, all right.

PN1669

THE SENIOR DEPUTY PRESIDENT: I think that was a rhetorical question Mr Pearce.

PN1670

MR PEARCE: I think yes, your Honour.

PN1671

Now, can I ask you about your statement of 19 June? How did that statement come to be made?---19 June, how did this one come to be made?

PN1672

Yes, the second statement?---The second statement? The ABCC came back and did a follow up.

PN1673

Well, yes. And what happened?---He just came in and went over a few things again with me, that's how I classed it as.

PN1674

Well, did Mr Grant raise with you some more topics?---Well, pretty much exactly what I said before. I actually couldn't work out why I come back the second time, but I gave it to them again the second time.

PN1675

Well, in paragraph 6 of your statement - sorry, your second statement, that's ABCC9.

PN1676

THE SENIOR DEPUTY PRESIDENT: The 19 June statement.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1677

MR PEARCE: At paragraph 6 you talk about Mick Lane walking back and forth around the area near the toilet trying to speak to people heading to the toilet block?---Yes.

PN1678

Where does that fit in in terms of your evidence in your first statement? I can't see any reference to Mr Lane being near a toilet block?---From the first statement, okay, I see what you mean.

PN1679

Yes?---Okay. Obviously there's a lot of things that happened on that day and, like I said, I'm not one with a good memory to recall everything that goes on word for word. Some things I might have even left out of that one there. I recall what I can recall. I had time to sit down and think about it afterwards, what else had happened. I know that did happen. Everything that's in these two statements happened.

PN1680

Well, how did you come to make paragraph 6 in your statement?---In this statement?

PN1681

Yes, sorry, in ABCC9, the smaller statement?---How did I come to - - -

PN1682

Make it, yes?---Make it?

PN1683

Yes?---From what I saw.

PN1684

Well, did Mr Grant raise with you whether you'd seen Lane near the excavator or the Frana crane area when he took this statement?---No. It was just stuff that I brought up.

PN1685

Well, how did it come to be missing from your first statement?---Like I explained just a second ago, there were some things that I obviously - like I said, I had time to think about it. When you're on the spot and you're trying to sit down and think about everything that you can remember on that day you tend to obviously lose a couple of things that you've missed. There was so much going on in between me trying to work and with the things that went on that day.

PN1686

Well, you see, did he show you some things that were in Ned's statement?---No, I didn't look at Ned's statement, I never have looked at Ned's statement.

PN1687

You see, it's just that you in your first statement didn't mention anything about Mr Lane hanging around the excavator or the toilet, but then a month later approximately you now remembered it and you put it in your statement, put in a new statement. Is that what you're saying?---Yes, I probably left it out, yes.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1688

Well, can I suggest to you that it might have gone something like this? That
Mr Grant pointed out to you, or maybe he didn't, maybe he just asked you, he said someone else had said that Mr Lane was standing around the toilet block and trying to speak to workers who were passing by?---No, not at all.

PN1689

So it's just a coincidence that that evidence first appears in your brother's statement and then it doesn't appear in your statement until a month later, is that your evidence?---Mine?

PN1690

Yes?---No. My evidence is what I recall. I was there, I was standing there.

PN1691

Yes. But why do you recall it on 19 June when you didn't recall it on 23 May?
---Like I said, I've obviously left some parts out. Like I said, when I sat down and went home afterwards after 23 May there was a lot of things that I thought to myself afterwards, gee, I should have put that in, I should have said that and I should have said that, because there was a lot of things that happened on that day.

PN1692

THE SENIOR DEPUTY PRESIDENT: How did the interview proceed?
Mr Grant I presume introduced himself to you, indicated that the statement might be used in proceedings or prosecutions under state or federal law. Then what happened?---I'm sorry?

PN1693

You go into the room with Mr Grant. Well, what did he say to you?---About this statement?

PN1694

Yes?---The second statement?

PN1695

You were asked to have another interview, this time Mr Grant?---Well, I just took it as, like I said, as a follow up on if there was any more that I'd missed. That's all I could think of. There was some things there, like I said, on 23 May, after
23 May that I thought I should have put in, and then when he turned back up I added it to it.

PN1696

Well, the interview is arranged by Mr Grant?---Yes.

PN1697

And you come into a room with him?---Yes.

PN1698

Well, who said what first?---Well, he just - well, obviously Mr Grant just come in and said, you know, need to do, you know, a follow up I suppose, that's what you'd call it. I don't know exactly word for word what he'd actually said but that was how I took it, as a follow up.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1699

Yes, very well.

PN1700

MR PEARCE: And whose idea was it to have the follow up interview?
---Mr Grant.

PN1701

So although you knew you remembered a few more things you weren't yourself pressing desperately to do another statement to add them did you?---Well, I didn't think they would come back. I don't know how these things work. I'm not involved with them, I don't know whether they come back. It's not like I'd be straight on the phone to him and say hang on a second, come back over. Mind you, we're in Bathurst.

PN1702

Could I suggest to you that Mr Grant raised with you and asked you questions about the contents of what now appears in paragraphs 6 to 12 of your second statement, ABCC9?---From 6 to 8?

PN1703

From 6 to 12, yes?---It's all my wording.

PN1704

Can you answer my question. Can I suggest to you that Mr Grant raised with you the subject matter of what now appears in paragraphs 6 to 12 in that interview?
---No.

PN1705

Can I suggest he first raised it with you before you told him anything?---No.

PN1706

Well, how did you come to - now, Mr Grant arranged the interview didn't he?
---Yes.

PN1707

And what did he say to you at the start of the interview?---It was just like I said, a follow up. He'd just gone over what I'd said before and asked I suppose was there anything else I needed to add. He never prompted me on anything, if that's what you're trying to imply.

PN1708

So he said is there anything else you want to add, is that right?---Yes, I suppose so. Like I said, it was a fair while ago but that's - from my recollection that's what had happened.

PN1709

And then just spontaneously, as it were, added six paragraphs about a conversation Mr Lane had near the toilet and the paragraphs about - - -?---Yes, because like I said - - -

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1710

Sorry, in the paragraphs about him wearing the safety vest didn't you?---Like I said to you before, after 23 May there was some things there that I thought to myself I should have said that I hadn't put in the first one. When he came back I had an opportunity.

PN1711

Well, let's assume that's the truthful evidence. But you realised there were some things you hadn't raised because you read your brother's statement didn't you?
---No.

PN1712

Because you read your brother's statement didn't you?---No.

PN1713

You see, your brother raised a question in an earlier statement about Mr Lane being near the toilet block, did you know that?---No.

PN1714

You didn't?---No, not at all. Like I said to you before, I didn't read my brother's statement, and I will swear on the Bible again to say that.

PN1715

All right?---I never read anybody's statement. I didn't see the need to read anybody's statement.

PN1716

And no one prompted you and suggested to you that there might have been this event involving the crane operator?---No. I was there the whole time.

PN1717

Well, you may have been there the whole time, but I'm just asking about how this statement was prepared. No one raised with you that you might have forgot to mention the thing about the crane driver. Is that your evidence?---Yes, that's my evidence right here.

PN1718

Your evidence is that no one raised with you that you might have forgotten about the crane driver?---No one prompted me or anything, like I said the last couple of times.

PN1719

But nevertheless Mr Grant thought it was worth his while to come back and have another session with you, and that was his idea was it?

PN1720

MR COLEMAN: Well, the witness can't know what's in Mr Grant's mind.

PN1721

THE SENIOR DEPUTY PRESIDENT: Yes.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1722

MR PEARCE: Well, I'll put it this way. Nevertheless you've told us that
Mr Grant approached you about having another session, is that right?---Mr Grant approached me and asked me to come in. I actually felt because there was some of the guys there that needed to be spoken to over - like, as in guys that hadn't been spoken to once before, and then yes, I went and spoke to Mr Grant.
Mr Grant called me in and I went and had a conversation with him. And there were some things in there, like I said, for after the 23rd that I wished I had have put in and I still had the opportunity to put in.

PN1723

And can I suggest to you you wished to put them in because you saw them in your brother's statement and they weren't in your statement?---I just explained that to you. No.

PN1724

I see?---I never read anybody else's statement. Nobody read my statement.

PN1725

THE SENIOR DEPUTY PRESIDENT: Well, you can't possibly know that Mr Mozzell?---Well, I was the only other one that had the copy, and I had the copy with me.

PN1726

MR PEARCE: Now, in your earlier statement - and you can correct me if I'm wrong - you said that Mr Lane spoke to Donny, Mr Tyler?---Yes.

PN1727

I see. Now, you know that Donny's given a statement saying that Mr Lane didn't speak to him, did you know that?---No, I didn't.

PN1728

And you say you said to him "You can't do this, these guys are working"?---That's right.

PN1729

How did you know that?---How did I know they were working?

PN1730

No. How did you know he couldn't do it?---How did I know?

PN1731

Yes?---Because I've been told that before.

PN1732

Who told you that?---The company.

PN1733

Well, who in the company told you that Mr Lane couldn't talk to workers who were working?---It's common knowledge. The company's spoken to me before.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1734

Which person in the company please?---Gee, there's been so many.

PN1735

Well, if there's so many you'll be able to nominate a few names. Please tell me who told you that - - -?---Mark Ware.

PN1736

Yes. And what was his job?---He was another job in Foster that I'd worked with.

PN1737

I see. But you're in Foster now aren't you?---That's right.

PN1738

Well, I'm just talking - - -?---I'm only living there. I'm working here.

PN1739

Who told you - - -?---That's what I'm saying.

PN1740

Who had told you prior to this time that you can't do that - - -?---Prior to this time?

PN1741

Prior to May 2007?---Prior to May 2007?

PN1742

Yes?---Like I said, the first person was Mark Ware.

PN1743

THE SENIOR DEPUTY PRESIDENT: And when did he tell you?---That was before I started with Kell and Rigby.

PN1744

MR PEARCE: Which was?---Back in 2006, end of 2006.

PN1745

And so he didn't work for Kell and Rigby?---No. He worked for Ware Building, he was the owner of Ware Building.

PN1746

I see. Well, who from Kell and Rigby told you, because you've said they were people from Kell and Rigby, that they can't talk to employees while they're walking around a site on a union inspection, who in Kell and Rigby told you that?---Who told me that? I'm not too sure if it was Rob Commbe or somebody like that. I knew that they couldn't say - I knew they couldn't talk to them.

PN1747

When did Rob Commbe tell you that?---Look, I couldn't tell you exactly the dates.

PN1748

Well, when did you - I presume since it was Rob Commbe it was while you were working on a Mount Panorama site, is that right?---That's right.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1749

When did you start work on the Mount Panorama site?---Back in February 2007.

PN1750

Beginning or end of February?---I think it was the end of February.

PN1751

And can I suggest to you that you were told that some time in early May when there was a discussion taking place about the contents of a notice that there was going to be a union meeting on the site. Does that ring a bell to you?---Possibly.

PN1752

Well, I'll show you the - it might assist if you see the notice. Can I show you it might have been when you were discussing the contents of that notice a day or so the second visit to the site by Mr Lane and Lee, is that right?---I remember the notice.

PN1753

And can I suggest to you that it was at that time that Mr Commbe said to you that they can't talk to people when they're carrying out inspections on the site with people working?---Look, I really couldn't be too sure. I really couldn't be too sure when it was. I know - I knew just from what I'd known that they couldn't talk to workers, they had to have a certain area that they could talk to them, so I knew that that was the case.

PN1754

So what else did you know about right of entry by the way?---Right of entry? It was only - like, I said, I didn't know too much about right of entry, I've never had to deal with the union too much, but all I did know was the fact was that we're supposed to prepare a space for them to have a meeting with the clients somewhere down round the lunch sheds, and that they weren't allowed to talk to them in their lunch hours - sorry, in work hours, and they could talk to them in a lunch hour or a time designated.

PN1755

Can I suggest to you that you found that out, Mr Commbe's told you that at the time there was a meeting when this notice was prepared or this notice was going to be prepared, so the second time that Mr Lane was coming onto the site?---No, because like I said, I also knew that when I was told by Mark Ware.

PN1756

Well, I'm interested in finding out when Mr Commbe told you please?---When Mr Commbe told me? Like I said, I couldn't be exact on the date.

PN1757

Well, I've suggested to you - - -?---I can't remember whether it was before that date, a day or two before that date.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1758

Can you listen to my question please? I suggested to you that you were told that by Mr Commbe when there was a meeting in May just a day or two before Mr Lane and Mr Lee came out to the site. Do you disagree?---Yes, I do disagree actually because I don't think it was.

PN1759

So when do you recall you were told that?---It was before that.

PN1760

In what circumstances?---Like I said, I don't know. Like I said, I can't recall. I just can't recall.

PN1761

So what your evidence is, you can't recall when you were told that by Mr Commbe, is that right?---No. No, I can't. I can't. I can't give you an actual date.

PN1762

So you can't deny that he might have told you that when the meeting was held to discuss the preparation of this notice and the fact that Mr Lane was coming to the site can you?---Well, I'm sure it wasn't before when we seen that notice. I already knew it.

PN1763

Yes. Can I suggest to you that you knew it from a day before you saw that notice?---No.

PN1764

Because that notice was prepared after a meeting on or about 14 May 2007. Do you remember that meeting?---The meeting with who?

PN1765

Mr Commbe?---With Mr Commbe? Like I said - - -

PN1766

Just listen to me. You asked me with whom. With Mr Commbe, with your brother Ned, perhaps with Mr Beard?---No, I didn't have a meeting with Mr Commbe, Ned and Mr Beard all in one. I had a meeting with Ned and Adam Beard and those, not - Mr Commbe wasn't there, no.

PN1767

I see, okay. And do you remember that was a meeting a day or two before Mr Lane came onto the site the second time wasn't it?---16 May, yes. Well, Mr Commbe came onto the site in - what, the first time he came on site?

PN1768

No, the first time he came on site was 19 April?---19 April.

PN1769

And I'm suggesting to you that there was a meeting on 14 May a couple of days before Mr Lane came on the site on 16 May, and certainly you were there and your brother was there and Mr Beard was there. Do you recall that?---I remember a meeting to say that - well, it wasn't actually really a meeting. It was just a notice saying, look, guys the union will be on site on this day.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1770

There was a discussion?---A discussion, not an actual meeting.

PN1771

The three of you were there, is that right?---Yes, the three of us were there.

PN1772

And you discussed how you were going to react to Mr Lane coming onto the site, is that right, what the law, what the appropriate thing to do was, is that right?
---What the law was? No.

PN1773

And can I suggest that Mr Commbe might have been - - -?---I was told that the union was coming on site.

PN1774

Yes. Can I suggest to you that Mr Commbe might have been there?---No, he wasn't there.

PN1775

I see. So when do you - you can't remember when you had the discussion with Mr Commbe where he told you - - -?---No. I spoke to - I always rang Mr Commbe, always, beforehand. My job was site safety out on the site so I had to be in contact with Mr Commbe at all times. I always ring him and ask him things.

PN1776

Yes. Well, I'm asking you about a particular conversation you had with him, not about what you always do?---Yes. But no, you're asking me that Mr Commbe was here at the meeting, and I'm telling you no, he wasn't.

PN1777

He wasn't, okay. And what was discussed at the meeting?---Between Ned and Adam Beard?

PN1778

Yes?---That the union were going to be here on site on 16 May.

PN1779

Yes. And what else was said?---Guys, the union's going to be here on 16 May. Ned said to me stuff that he didn't - you just have to make sure we find a spot for them to have the meeting. And I said righto. That had probably been about it, because I'm never in the office at too longer a period. I'm in and out.

PN1780

Did you discuss about what conditions would apply to their entry onto the site?
---What conditions?

PN1781

Yes?---No, because that's got nothing to do with me. It's up to Ned.

PN1782

Well, if it had nothing to do with you about what conditions apply to their entry onto the site why did you raise it with Mr Lane when he spoke to the employees?
---Because I knew he was doing the wrong thing.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1783

So it did have something to do with you did it? You thought it was part of your responsibility to raise it?---It comes to - it does come under my jurisdiction when he's doing the wrong thing. It doesn't matter if anyone's on my site, and if they're doing the wrong thing I'll tell them they're doing the wrong thing.

PN1784

So it was part of your responsibility wasn't it?---Not my responsibility in working out what was in the agenda.

PN1785

Sorry, what was in the agenda?---Well, how would you put it? As I said, I'm not a really educated man, if you'd say that, I don't know how you'd put it. All I know is that I was told they were going to be on site, okay? When they came on site I knew that Mr Lane was doing the wrong thing by saying - well, had been speaking to the guys while they were working. And if you ask me how did I know they were working I can tell you how they were working.

PN1786

Well, that's correct that you'd want me to ask you how you knew they were working?---Well, you ask every other question five or six times, I'm just saying.

PN1787

Because that's a question I asked your brother?---Yes, because I can hear it out there in the hallway.

PN1788

THE SENIOR DEPUTY PRESIDENT: You've been in the hallway listening to everything have you?---No. I just heard him yell it out. I'm sitting around the corner there.

PN1789

MR PEARCE: How much of the questions that I asked your brother did you hear in the hallway?---That question.

PN1790

Just one question?---Yes, because I've been downstairs having a cigarette.

PN1791

Is that the truth, that you only - you were sitting out there and you heard me ask one question and only one question?---Yes. I truthfully haven't been paying that much attention. It was only when Ned yelled it out.

PN1792

Well, I know you haven't been paying that much attention. Let's assume you haven't been paying that much attention, but are you telling me you only heard one question that was asked?---Yes, I did.

PN1793

I see. You didn't think there was anything wrong with listening to the questions I was asking your brother?---I had my eyes closed sitting out there in the hallway.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1794

Well, now can you answer my question? You didn't think there was anything wrong with listening to the questions I was asking your brother?---No, I didn't. I didn't. If you were - if it was such a wrong thing to do then the door would be shut, am I correct?

PN1795

THE SENIOR DEPUTY PRESIDENT: You don't get to ask the questions Mr Mozzell. I think we might shut the door now in case there are any other witnesses out there.

PN1796

MR PEARCE: I don't think there's any witnesses there, your Honour.

PN1797

THE SENIOR DEPUTY PRESIDENT: No one discussed with you - - -?---Well, no one said to me, no, you couldn't sit there and listen or can't sit out there in the hallway. If that was the case I would have sat downstairs.

PN1798

I'm sorry, Mr Mozzell, listen a minute. No one discussed with you from the legal team representing the ABCC the need not to discuss your evidence with any other witness?---I haven't discussed my evidence with any other witness.

PN1799

That wasn't the question Mr Mozzell. Did anyone from the ABCC legal team tell you not to discuss your evidence with any other witness?---I think so, but that was ages ago.

PN1800

And you thought it appropriate to overhear questions out there? Did they tell you why you couldn't discuss the evidence with anyone else?---Mm.

PN1801

Yes, very well. Mr Pearce?

PN1802

MR PEARCE: I wonder if I could have that document back for a moment. When did you first see this document?---It would have been a day or two before 16 May.

PN1803

And who gave it to you?---I can't recall who actually gave it to me. It was just sitting on the table, placed on the table.

PN1804

So it wasn't specifically given to you, is that your recollection?---No, it wasn't actually specifically given to me.

PN1805

Did you give it to anybody else?---That document?

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1806

Yes?---Yes, I did.

PN1807

Who did you give it to?---I actually, well, handed it - showed it to a couple of the other foremen to show that they were here, but also - - -

PN1808

Sorry, who did you show it to?---I think it was - it might have been Ben Spink.

PN1809

Yes, and who else?---It could have been Adam Beard.

PN1810

And why did you show it to them?---To let them know that they were on site and the date.

PN1811

But I thought you said you just - where did you first see it?---It came through, it obviously came through a fax. That one, hang on. I think I'm getting it mixed up with the actual notice coming through. Who was this one - this one was done by Kell and Rigby was it?

PN1812

Yes?---Yes, this was the one that I actually put on the table out the front for everybody to put their names down if they wanted to talk to them.

PN1813

Right. Now, can I have it back again please. Have we got another copy? Somehow or other my copy's gone?---I got it mixed up with the actual notification of the site visit.

PN1814

Just a minute, I'll just see if I can - you should have a copy if I'm going to ask you some questions about it?---It's so long ago that there's forms there that I can't remember from - - -

PN1815

I'll give you that so that you can have a copy of it. So you put that out on a table. When did you do that?---I did it - this one went out - most of the people that were there of the tradesmen on the site, I let them know that the union was visiting. I also told them about - - -

PN1816

Sorry, can you answer my question. When did you put this notice out?---I was getting to that.

PN1817

Well, if you answer my question then that's the way we'll go please?---Okay. This one here went out, it would have been - I think it was on the Tuesday, Monday or Tuesday. Monday I think it was.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1818

And do you recall what day Mr Lane was coming? Was he coming the Tuesday or the Wednesday?---He was coming out on the Wednesday.

PN1819

Yes. And where did you put it?---I put it where they sign in of a morning.

PN1820

And why did you do that?---To let everyone know for a start that the union were going to be on site, and if people wanted to go and talk to Mr Lane that they can do, okay, and that way they'd have names there so that when they did turn up I could let them know that he was here on site and organise a time and so forth.

PN1821

So it was your idea to put it near the sign on book?---No. It was Ned's idea to put it near the sign on book.

PN1822

So is the answer, when I asked you why did you put it there, is the answer because Ned asked you to?---Yes, that one is, yes.

PN1823

Thank you. So you put it there because Ned asked you to, is that right?---Yes.

PN1824

Did you do anything else with the notice?---Like what?

PN1825

Well, did you do anything else with the notice? It's capable of a yes or no?---No.

PN1826

So your involvement with the notice was limited to putting it by the sign on book?
---I put it next to the sign on book, yes.

PN1827

And you did that because Ned asked you to?---Yes, that's right.

PN1828

Did you read it before you put it by the sign on book?---Yes.

PN1829

And can I just ask you, as far as you know that notice, the only thing that was done with that notice was to put it near the sign on book, is that correct?---The reason was to put it near the sign on book.

PN1830

Just listen to my question. As far as you know the only thing that was done with that notice was to put it near the sign on book, is that right?---And get people to sign it, yes.

PN1831

Yes, okay. And did you think it strange that the notice should ask people to put their CFMEU membership number on it?---No.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1832

Now, do you understand who drafted this notice?---No, I don't actually.

PN1833

All you know is it was given to you by Les?---Ned.

PN1834

Ned, sorry. And you did nothing else with it except put it by the sign on book?
---I put it next to the sign on book for everyone to sign, yes.

PN1835

Because a lot of the workers on the site were Korean and Chinese weren't they?
---Yes.

PN1836

And you knew of course that they could hardly speak English let alone read it?
---That's right. That's why I went and spoke to Donny.

PN1837

I see. What did you say to Donny?---I told him about the union turning up on site.

PN1838

What precisely did you say to him?---I said if you want to put your names down I've got a piece of paper down on the - a notice down there near the sign on book and if you wanted to go put these guys names down you can do so. And it was the same for the other Asian guys that were there as well.

PN1839

There were from Classic Tiles were they?---Donny's from Classic Tiles.

PN1840

Sorry, yes. And the others were from Cosmont, the plasterers?---Yes.

PN1841

There were other subcontractors on the site weren't there?---Yes.

PN1842

You didn't speak to them?---I did.

PN1843

You told them all that there was a notice down by the book and you could put your name on it?---Yes.

PN1844

And what did you ask Donny to do?---If he - to put - if he wanted to put his guys down. I know some of them couldn't write English or speak English. That's why I went and seen Donny, because he could write English and speak English and he can talk to his guys.

PN1845

Well, I'm sorry, I thought you said that you asked Donny if he could put any of his - you told Donny that he could put any of his guys names on the list?---That's right. He could put his guys name down obviously when he spoke to them.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1846

Yes, exactly. Sorry?---I told him to let his guys know.

PN1847

I see, so you told him to let his guys know?---Well, that's right. When I speak to Donny I speak to him as a single identity to talk to his guys because I can't talk Korean or Chinese, whatever they are, I can't speak their national language. So I go speak to Donny because I know he speaks English.

PN1848

And what did you ask Donny to do?---What did I ask Donny to do?

PN1849

Yes?---I just told you that.

PN1850

Well, tell me again please because you've given me two different versions?---No, I haven't. I've only given you one version.

PN1851

Well, can you answer my question please? What did you ask Donny to do?---This is getting a bit mind boggling here. You keep asking me the same question over and over again. I told you that what I said to him was that he was to - - -

PN1852

Sorry, yes?---He was to talk to his guys and get them to - and for him to put their names down in the book.

PN1853

Did you explain to him that they - the conditions 1 and 2 on the notice?---Donny can read English. I told him the notice was down there.

PN1854

You told him, so you didn't actually discuss the contents of the notice with him?
---No. I told him the notice was there. Every morning when they come in they sign in. The notice was sitting beside the sign on book.

PN1855

Your Honour, I'm about to move on to a different topic. I wonder if that's a convenient time?

PN1856

THE SENIOR DEPUTY PRESIDENT: I was proposing to go to about 4.15.

PN1857

MR PEARCE: Well, I'll keep going, your Honour. I've arranged to have my trolley picked up at 4 o'clock. I thought we were sitting till four.

PN1858

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, is there any objection if we adjourn now Mr Coleman?

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1859

MR COLEMAN: No, your Honour.

PN1860

THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn. But just before I do, Mr Mozzell, just going back to the two statements. The first statement you made to Anne Symonds, the second to Chris Grant, did you read the statement to Anne Symonds at the time of your interview with Chris Grant or shortly before it?---I don't think - I didn't have it on me. The first statement I read to Chris, is that what you're saying?

PN1861

No. Did you yourself read the statement you gave to Ms Symonds?---Before I talked to Chris?

PN1862

Yes?---Yes.

PN1863

And when did you do that?---The day after - that same day that I wrote it. It was after when Ms Symonds had written it on the 23rd. I then sat down after I'd written it before I've signed it and I read it, what I said.

PN1864

Did you read it again before you spoke to Mr Grant?---No. Because as far as I was concerned at that stage it was all done and finished.

PN1865

So when Mr Grant asked for another interview you didn't think to read the statement that - - -?---No.

PN1866

How could you recall what you did and didn't say to Ms Symonds?---Because, like I said, that night after the 23rd I sat down and said I should have had that in my statement.

PN1867

The night after the 23rd?---Because that night on the 23rd, sorry, that night on the 23rd after I'd said that and everything had been finished for the day, there was a few things there that I thought about afterwards that I should have put down in the statement that I'd forgotten all about.

PN1868

And you say that remained in your mind?---Yes. Yes, because I remember when he turned up again, I remembered it there, yes.

PN1869

Yes. But you didn't bother reading the statement that you gave to Ms Symonds to refresh your memory before you spoke to Mr Grant?---No. It was just, like I said, it was just a thing, it was like, I thought it was all over and done with.

**** LESLIE MCNEIL MOZZELL XXN MR PEARCE
PN1870

Very well. Well, on that note we'll adjourn. We'll resume at 10 o'clock tomorrow, and I will sit to 4.15 tomorrow if that's possible.

<ADJOURNED UNTIL TUESDAY 17 JUNE 2008 [4.02PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EDMUND DAVID MOZZELL, AFFIRMED PN399
EXAMINATION-IN-CHIEF BY MR COLEMAN PN399
EXHIBIT #ABCC1 OUTLINE OF SUBMISSIONS PN400
EXHIBIT #CFMEU1 OUTLINE OF SUBMISSIONS OF
MR LANE PN400
EXHIBIT #ABCC2A STATEMENT OF MR EDMUND DAVID MOZZELL, DATED 17/05/2007 WITH ATTACHMENT PN482
EXHIBIT #ABCC2B STATEMENT OF MR EDMUND DAVID MOZZELL, DATED 17/5/2007 BUT MADE ON 24/05/2007 PN482
EXHIBIT #ABCC2C STATEMENT OF MR EDMUND DAVID MOZZELL BUT DESCRIBED AS NED MOZZELL PN482
EXHIBIT #ABCC3 FACSIMILE DATED 17/04/2007 PN494
EXHIBIT #ABCC4 KELL & RIGBY NOTICE FROM MANAGEMENT TO ALL, DATED 18/04/2007 PN501
EXHIBIT #ABCC5 FAX CONTAINING THE COVER SHEET AND ENTRY NOTICE IN RESPECT OF MR LANE, DATED 14/05/2007 IN RESPECT TO AN ENTRY ON 15/05/2007 PN507
EXHIBIT #ABCC6 DOCUMENT HEADED CFMEU SITE VISIT, NOTICE WITH A TABLE FOR PERSONS WISHING TO PARTICIPATE PN513
EXHIBIT #ABCC7 TWO NOTICES PURSUANT TO SECTION 127, DATED 16/05/2007 PN518
CROSS-EXAMINATION BY MR PEARCE PN520
MFI #1 D0CUMENT HEADED SUPERANNUATION GUARANTEE CONTRACTORS PN1043
RE-EXAMINATION BY MR COLEMAN PN1551
THE WITNESS WITHDREW PN1594
LESLIE MCNEIL MOZZELL, AFFIRMED PN1597
EXAMINATION-IN-CHIEF BY MR COLEMAN PN1597
EXHIBIT #ABCC8 STATEMENT OF LESLIE MOZZELL WITH ATTACHMENTS DATED 23/05/2007 PN1608
EXHIBIT #ABCC9 STATEMENT OF LESLIE MOZZELL WITH ATTACHMENTS DATED 19/06/2007 PN1608
CROSS-EXAMINATION BY MR PEARCE PN1633