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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052650
SENIOR DEPUTY PRESIDENT RICHARDS
RE2015/1117
s.512 - Application for a right of entry permit
Application by Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional
Branch
(RE2015/1117)
Brisbane
10.06 AM, WEDNESDAY, 28 OCTOBER 2015
Continued from 27/10/2015
PN854
THE SENIOR DEPUTY PRESIDENT: Good morning, everyone. Please take a seat. Are there any housekeeping matters we need to attend to or do we turn to the witness?
MR WHITE: No housekeeping matters from our perspective, your Honour.
<DANIEL ROBERT KUN, RECALLED ON FORMER AFFIRMATION [10.06 AM]
CROSS-EXAMINATION BY MR WHITE [10.06 AM]
PN856
THE SENIOR DEPUTY PRESIDENT: The witness has been sworn and he remains under oath. Do you understand that?‑‑‑Yes, I do.
PN857
Good. Mr White
PN858
MR WHITE: Mr Kun, could I just ask you about 26 March 2015 to start with, and can I ask you to look at paragraph 12 of your statement. You set out there a conversation in which you say, in part, "Can I see your 24 hours' notice and also workplace health and safety card, and can you sign the visitor's book", can you see that?‑‑‑Yes.
PN859
And that was the extent of the conversation you had with Mr Bland before he went on to site, wasn't it?‑‑‑That was the extent of the conversation when he left my office yes.
PN860
Yes, and those two things that you asked for, the 24 hours' notice and the workplace health and safety card - sorry, three things -and to sign the visitor's book, they - can I suggest were the only things you asked Mr Bland as you walked around with him on site on the 26th. That's right too, isn't it?‑‑‑Do you mean walked around the entire site, during that whole event?
PN861
Yes. They're the things that you were asking him?‑‑‑At that point in time, yes.
PN862
Well, I've just questioned, Mr Kun, it wasn't beyond that point of time. I said they are also the three things that you spoke to him about as you walked around. You understood that question, didn't you?‑‑‑Sorry, could you just repeat that?
*** DANIEL ROBERT KUN XXN MR WHITE
PN863
All right. They are also those matters that you have said in paragraph 12 are the matters which you asked Mr Bland, as you walked around the site on the 26th?‑‑‑On two occasions I asked him about his permits and 24 hours' notice, yes.
PN864
Yes, and that's all that you asked him about, wasn't it?‑‑‑ in regards to that yes, that I can recall.
PN865
THE SENIOR DEPUTY PRESIDENT: I don't know what that means. You asked him twice about those particular - you made that request of him twice?‑‑‑Yes, that's right.
PN866
But in the course of your movement through the site, there were other discussions or exchanges between you?‑‑‑Possibly, yes.
PN867
Well, there you go. Are you inquiring into those other issues or is the matter only about those two requests?
PN868
MR WHITE: Well, the question I asked the witness and I think he may have confirmed, if I heard correctly, was that those matters were the only matters that he asked as he accompanied Mr Bland around the site. I think he agreed with that proposition, unless I've misheard.
PN869
THE SENIOR DEPUTY PRESIDENT: But there were other discussions as well.
PN870
MR WHITE: I asked him, as he accompanied him around the size, those were the matters that he raised with him.
PN871
Now, implicit in that is that there were discussions as you walked around the site. Do you understand that?‑‑‑There probably were other discussions, yes
PN872
Yes, and those were the matters that, in those other discussions, you asked him about?‑‑‑On two occasions, yes.
PN873
And those were the only matters that you asked about as you accompanied him around the site, aren't they?‑‑‑Not that I can recall, no.
PN874
And when you accompanied him around site, for a period of time you were videoing him, that's right?‑‑‑Yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN875
And then at all times, however, you were walking relatively close to him. That's right, isn't?‑‑‑Generally, yes.
PN876
At all times he was in your site?‑‑‑Generally, yes, that I can recall.
PN877
Yes, and at all times he was in earshot where you were?‑‑‑No, I wouldn't say that would be the case.
PN878
And during the course of the walk-around, you and he had discussions. I think you have given evidence to that effect already?‑‑‑Yes. There probably would have been other discussions, yes.
PN879
And during the walk around the site, you saw him taking photographs, didn't you?‑‑‑I don't recall seeing him taking photographs, no.
PN880
And as he took photographs, he talked to you about what he was taking photographs of?‑‑‑Not that I recall, sorry.
PN881
I want to show you these, Mr Kun. Now, what I want to suggest to you is this; you recognise that as being part of the top deck on the site at the time?‑‑‑It may be. I couldn't tell you a hundred per cent. There is no - nothing there that could illustrate that to me.
PN882
But what I want to suggest you; these photographs, all of them are taken by Mr Bland on the 26th. All right? I'll just suggest that to you and can I suggest that this is part of the top deck on the job. Now, can you have a look at it again and can I ask you to confirm that to the best of your knowledge this is a photo of the top deck as it was on 26 March?‑‑‑I couldn't be a hundred per cent sure, sorry.
PN883
And you will see there, don't you, there's a dropdown from the wooden - from the wood, down on to the scaffold. Do you see that in the bottom left quadrant?‑‑‑Could be, yes.
PN884
And you will see that there's no mid‑rail on the scaffolding there?‑‑‑Where do you mean, exactly? There's - - -
PN885
Well, do you see in the upper left quadrant, the formwork with the hole going from the pole, off to the side of the page, do you see that?‑‑‑Yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN886
And then down below that, in the bottom left quadrant, there's a pole across - going from the pole, across to the side of the page?‑‑‑Yes, yes.
PN887
And there's no mid-rail, as there should be, between the bottom pole and the steel with the faults, is there?‑‑‑Well, there's no mid-rail, but I don't see why this should be one there though, looking at that.
PN888
Well - all right. So you don't think there should be a mid-rail to stop people falling through down onto the bottom scaffolding there, is that your evidence?‑‑‑Just looking at that photo, it's very hard to tell if there's a drop-off at all.
PN889
And Mr Bland asked you about this and the mid-rail, didn't he? Has that jogged your memory now?‑‑‑I can't recall. No, sorry.
PN890
You're not in a position to deny it, though, are you?‑‑‑I can't recall the conversation.
PN891
The next photograph, can I ask you to have a look at that. Once again, that shows a drop, doesn't it, off the wood, and then down further to the scaffolding, we can see the part with the little holes?‑‑‑It's hard to see, there may be a little drop there.
PN892
Yes, and no mid-rail there is there?‑‑‑Well, there's no mid-rail in the photo, no.
PN893
There should be a mid-rail where there is a falling hazard, shouldn't there?‑‑‑Not necessarily, no.
PN894
You can have scaffolding and leave open where people can fall through, is that your evidence?‑‑‑It's usually based on a risk assessment of the danger in the area, whether it needs mid-rails or step-offs or what the situation may be. It just depends.
PN895
Mr Bland raised this as an issue with you as well, didn't he?‑‑‑Not that I can recall, no.
PN896
Look at the next photograph. You see with the red bunting, you see that?‑‑‑Yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN897
Can I suggest to you that that was what was termed by the builder, by you, as the second form of access, or egress, from the deck wasn't it?‑‑‑That's correct, yes.
PN898
But of course there is no proper egress from the deck onto the scaffolding because there is a precast panel in place isn't there?‑‑‑There was proper egress to that stair, it was further around the photo, around the corner.
PN899
Can I suggest to you the only other one was on the ramp and you used the ramp as the egress?‑‑‑No, that's incorrect. There's two forms of access off that deck, one is a stretcher stair and one is a construction stair. Stretcher stair being the main form of access of that deck, and that is a secondary construction stair.
PN900
This is the second one is it?‑‑‑That's correct.
PN901
So only two and this is the second?‑‑‑Yes, from a scaffold point, yes.
PN902
The second one is blocked off by the precast concrete panel?‑‑‑No, you can access the scaffold if you walk around, just around that corner.
PN903
There is another precast panel around the corner, though, isn't there?‑‑‑There is but there is a stair that leads up onto that scaffold to access that stair.
PN904
Can I suggest to you, Mr Kun, that the idea that this be used as an access egress up and to the scaffolding level is risible isn't it? It's laughable?‑‑‑Sorry?
PN905
It's not a proper access or egress is it?‑‑‑It is, yes.
PN906
Mr Bland raised with you his concern about this being designated by you as the second form of egress, it being blocked off by the precast panel?‑‑‑What is the question, sorry?
PN907
Didn't he, he raised that concern with you, didn't he?‑‑‑I do remember having a conversation in regards to the second form of access off the deck. My answer to that was that we actually don't require a second form of access off the deck. We did provide a second one just as a precautionary, but under the workplace health and safety codes we only need to provide one form of access off that deck, which was the stretcher stair.
*** DANIEL ROBERT KUN XXN MR WHITE
PN908
Are there not always to be required two access egress, Mr Kun?‑‑‑No, that's incorrect.
PN909
All right, and you recognise this photograph, don't you, as being on the site?‑‑‑Yes, that one is, yes, definitely.
PN910
Can I ask you to look at the next photograph with the yellow hose at the bottom?‑‑‑Yes.
PN911
Where once again you will see there is a fair drop off the deck there and no mid-rail. Do you see that?‑‑‑I couldn't tell you how big that drop would be, looking at this, it's a bit difficult.
PN912
Can I suggest to you that it is an obvious safety matter to have mid-rails to prevent people falling through things where they can fall down a drop?‑‑‑Generally a mid-rail is for avoiding a fall from within the scaffold, back inside, than the other way around.
PN913
You see where people are walking along here there is obviously trip hazards, aren't there?‑‑‑Possibly could be, yes.
PN914
It's a safety issue, now looking at those trip hazards and the fall, that there should have been a mid-rail?‑‑‑Possibly in that situation, yes.
PN915
And Mr Bland raised that with you, didn't he?‑‑‑Not that I can recall, not that particular situation.
PN916
You recognise this as being on the site too, don't you?‑‑‑Possibly. Again there's no indication there of something that would give me 100 per cent. The other one had some buildings in the background which I could identify.
PN917
Look at the next one, that's the same as the previous one?‑‑‑Yes.
PN918
Look at the following one with the exposed reo bars. Do you see that?‑‑‑Yes.
PN919
You recognise that as part of your site don't you?‑‑‑It looks familiar, yes, with our form system.
*** DANIEL ROBERT KUN XXN MR WHITE
PN920
It's the case, isn't it, that when reo bars are put in there should be starter bar caps put on them immediately, don't you?‑‑‑Yes.
PN921
And these don't have starter bar caps on them, do they?‑‑‑These ones don't, no.
PN922
It's a recognised hazard, isn't it, to have exposed reo bars without starter bar caps?‑‑‑It's a little bit difficult to tell there because they may have been ready to install the steel, to lap them bars up, a moment in time, and that's when they would take the bar caps off.
PN923
This is 26 March I have suggested. That wasn't happening, wasn't it, on 26 March?‑‑‑I couldn't tell you without going back to diary notes.
PN924
The exposed reo bars without the starter cap, those starter bar caps on them, are a well-recognised hazard in the building industry, aren't they?‑‑‑They can be, yes.
PN925
What do you mean they can be? Of course they are?‑‑‑It depends on the risk assessment and the situation, where they are and where they're not.
PN926
Have you done a risk assessment of these exposed reo bars and formed a view that it wasn't dangerous not to have the starter bar caps on them?‑‑‑I couldn't tell you that sitting here.
PN927
Mr Bland raised with you his concerns that this exposed reo didn't have the starter bar caps, didn't he?‑‑‑I can't recall that conversation.
PN928
If you look at the next photograph you see there's the same issue with the exposed reo without the starter bar caps. You recognise that as part of the top deck don't you?‑‑‑Possibly.
PN929
The next one is another photograph with the exposed reo bars. Can you look at the next one where there is a man standing in form work?‑‑‑Yes.
PN930
Just before we look at that can you just go back to the one, the third photo of the exposed reo bars. You see in the - follow down the lower reo bars, at the end you will see some - a stand going up at about 45 degree angles. Do you see that?‑‑‑The prop in the background, yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN931
And the exposed reo bars without the starter bar caps are particularly dangerous where there is a trip hazard such as that nearby. You'd agree with that, don't you?‑‑‑Yes, could be a hazard, yes.
PN932
You can recognise that as being on the top deck of the site can't you?‑‑‑It looks familiar, yes.
PN933
I think I asked you before that Mr Bland raised these as concerns with you, didn't he?‑‑‑He may have but I can't recall the conversation specifically.
PN934
The next one where I took you before, the man standing in the form work, you recognise once again that as part of the top deck on the job?‑‑‑Yes, that's correct.
PN935
You see that man apparently has just walked through water. Do you see that?‑‑‑That may be so, yes.
PN936
Having water on site on a deck, you'd accept, is dangerous?‑‑‑Again it depends on the situation of where the water is and what the activities and tasks are involved.
PN937
People can move from water to walking on steel or plywood, can't they?‑‑‑Yes.
PN938
It's a slip hazard isn't it?‑‑‑It can be, yes.
PN939
Not only is it a slip hazard but it's also a hazard which is easily avoidable and, in the normal course of events, if not invariably, where there is water such as that the site should be de-watered shouldn't it?‑‑‑Our scope of works illustrate that the subcontractor de-waters his work area.
PN940
Just the simple answer, where there's water it needs to be de-watered?‑‑‑Yes.
PN941
You do that by squeegee or paddle pump or a wet vac or air blower, any number of ways of doing it?‑‑‑Sure.
PN942
This is obviously hasn't been de-watered, that's right isn't it?‑‑‑Obviously, yes, there's water.
PN943
Yes, and someone is working in or around that water?‑‑‑I don't see anybody working there at that point in time, no.
*** DANIEL ROBERT KUN XXN MR WHITE
PN944
That man is just there for the view is he?‑‑‑That man looks like Michael McEwan to me that[sic] was walking around with us.
PN945
Mr Bland raised with you the problem of having water on areas of the deck?‑‑‑He may have, I can't recall that conversation with him.
PN946
If we just go back - go to the next one. You recognise that as part of the top deck?‑‑‑It looks familiar, yes.
PN947
You see the exposed reo bars again?‑‑‑Yes.
PN948
With a trip hazard at the end again?‑‑‑Yes.
PN949
You accept, don't you, that that is an obvious safety hazard?‑‑‑Yes.
PN950
You see into the next that's, I think, just another photograph of the same as in the previous one I showed you. Once again you obviously recognise that as being part of the top deck?‑‑‑It looks familiar, yes.
PN951
I tender those photographs, if your Honour please.
PN952
MR HERBERT: On what basis? Only about one of them has actually been - no, two of them, have actually been identified as being at this site.
PN953
THE SENIOR DEPUTY PRESIDENT: When you say identified, do you say where there has been a concession, they look familiar?
PN954
MR HERBERT: There has been a concession that they were photographs on this site, or one of them with Mr McEwan in it, I think we could accept that. The other one was where you can see some buildings in the background. But other than that this witness didn't concede that they were actually of this site.
*** DANIEL ROBERT KUN XXN MR WHITE
PN955
I don't know where all this goes, what the purpose of this material is, and I'm a bit concerned because it's all just arrived in the course of these proceedings without any prior notice, and a bit concerned as to what use is to be made of all of this. But if it's not going to be identified by anybody on the applicant's part we're not prepared to make any concessions about that because we simply don't know where they came from or when, other than the ones that have actually been identified, or accepted by this witness as being of work at the relevant site.
PN956
THE SENIOR DEPUTY PRESIDENT: Perhaps go on, Mr White, you were going to say something
PN957
MR WHITE: I beg your pardon, Your Honour?
PN958
THE SENIOR DEPUTY PRESIDENT: You were going to say something.
PN959
MR WHITE: My recollection is the witness positively identified the photographs with the red - sorry can I just go through the third photograph.
PN960
THE SENIOR DEPUTY PRESIDENT: Mr Kun, just for your benefit let's just work through one at a time starting with number 1, and we'll work through that way, just keep it organised.
PN961
MR WHITE: The first one possible but not 100 per cent sure I think the witness said. Having a look again in the background again, though, Mr Kun, you recognise those buildings and recognise the site, don't you?‑‑‑It's possible, I can't be 100 per cent sure.
PN962
Can I suggest, you having had a look at those buildings, and going through the rest of the photographs, that you are now able to be fairly certain that that's a picture of the top deck of the site?‑‑‑No, I'm still not 100 per cent sure, no.
PN963
Not 100 per cent sure. Not 100 per cent sure on the second one but certainly you concede it's possible. Is that right?‑‑‑Possible but not 100 per cent sure.
PN964
The next one with the red?‑‑‑Yes, that's definitely - - -
PN965
Definitely the site?‑‑‑ - - - the top deck, yes.
PN966
I tender that, your Honour.
PN967
THE SENIOR DEPUTY PRESIDENT: I am sorry, we're looking at number 2, the second photograph, are we?
*** DANIEL ROBERT KUN XXN MR WHITE
PN968
MR WHITE: No, number 3. Do you want to mark that now, your Honour?
PN969
THE SENIOR DEPUTY PRESIDENT: We will just go through first.
PN970
MR WHITE: So the next one, if you look at the background, Mr Kun, you will see a range of buildings there. Having a look at those buildings you recognise that part of the top deck, don't you?‑‑‑Possible, yes. That one is probably off the top deck there, just looking at that, the background of that one, yes.
PN971
I tender that, your Honour.
PN972
THE SENIOR DEPUTY PRESIDENT: Sorry, that's a yes is it, Mr Kun?‑‑‑Yes.
PN973
MR WHITE: Similarly, the next one after, the one again with the yellow hose at the bottom, you see that it's part of the same shot as the previous one?‑‑‑Yes, it's the same photo.
PN974
I tender that, your Honour.
PN975
THE SENIOR DEPUTY PRESIDENT: Let us just go through them all and I'll mark them as a group.
PN976
MR WHITE: I think that rail of exposed reo bars, do you accept that is part of your top deck?‑‑‑Possible, yes.
PN977
It's more than possible, you recognise that don't you?‑‑‑It looks familiar, it's possible it is, yes. But, again, there's nothing that gives away that it's 100 per cent.
PN978
Similarly, the next one with the exposed reo. We've got a far view, a distant view, of the site there, and from that you recognise that as part of the top deck don't you?‑‑‑Not 100 per cent. Yes, that's possible as well.
PN979
The next one, once again with the exposed reo bars, with a water cup on one of them, I think you have earlier identified that as being part of the top deck, that one?‑‑‑It is, yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN980
Similarly, the next one with the man walking through the form work?‑‑‑Yes.
PN981
That's part of the top deck?‑‑‑Yes.
PN982
The next one, once again the exposed reo bars, you've identified that as part of the top deck before I think?‑‑‑Yes.
PN983
The following one, the last one, once again you accept that as part of the top deck?‑‑‑Yes.
PN984
Your Honour, there is identification of most and of the others he certainly says it's possible but just not 100 per cent sure. On that basis I tender the photographs.
PN985
THE SENIOR DEPUTY PRESIDENT: We know that three, four, five, eight, nine, 10 and 11 are identified, and you say of the rest that - - -
PN986
MR WHITE: Whilst he can't be 100 per cent certain his evidence was, I think, that it's certainly possible and that they look familiar and, on that basis, we say it's sufficient to tender the photographs.
PN987
THE SENIOR DEPUTY PRESIDENT: Do you resist this, Mr Herbert?
PN988
MR HERBERT: That is not sufficient and the other difficulty associated with all of that is that we have no timing on any of them, we don't know when they were taken. And a statement by my learned friend - if he's going to make another statement from the Bar table and ask you to accept that as evidence that's not, in my submission, acceptable.
PN989
But that then perhaps goes to the weight that you can attach to any of this, even if there is any purpose in tendering this material. But those of which the witness says he's not sure whether it is or it is not on the site are documents that should not be admitted. The others where he has accepted I don't - I withdraw my objection.
THE SENIOR DEPUTY PRESIDENT: I will take them up and I'll mark them as a group as CFMEU3 but I am doing so on the basis that I have acknowledged that a number of those are specifically identified, there are a number of others that fall into a subcategory which are identified as well as being possibly, identified but not 100 per cent, and I acknowledge that I only have information from the Bar table as to how these photographs were taken and on what date. So, subject to all of that, that's the material I have before me.
*** DANIEL ROBERT KUN XXN MR WHITE
EXHIBIT #CFMEU3 SERIES OF PHOTOGRAPHS
PN991
MR WHITE: Mr Kun, can I suggest to you that Mr Bland took those, took these photographs, on 26 March 2015 and that you saw him taking photographs on that day?‑‑‑I don't recall seeing him taking photographs.
PN992
Can I suggest to you that the photographs you've identified and the ones that look familiar look as if that's the state of the progression of the site as at 26 March 2015, and that's right too isn't it?‑‑‑(No audible response.)
PN993
Now - - -
PN994
THE SENIOR DEPUTY PRESIDENT: Was there an answer given to that question?‑‑‑What was the question, sorry?
PN995
I didn't hear an answer for the record. I heard a question but I didn't hear an answer.
PN996
MR WHITE: The question was that the photographs that you have seen, the ones you have identified, and the ones you say look familiar, are reflective of the stage of the building as at 26 March 2015?‑‑‑I couldn't agree with that, I don't know.
PN997
Then can I suggest to you - could I just ask you one further matter about the 26 March 2015. I have asked you a number of questions about - I put to you that Mr Bland raised the safety concerns with you during the walk around. Having had a look at these photographs once again I think your earlier evidence is can't remember or words to that effect. Having had a look at those photographs, having now identified them, having had pointed out to you the safety issues, can I suggest once again to you that Mr Bland raised with you, as he was walking around, these matters as being safety concerns?‑‑‑He may have, I can't recall exact conversations, but these are minor safety matters that occur every day on building sites.
PN998
Minor safety matters?‑‑‑I'd consider most of them minor, yes.
PN999
Also on that walk on the 26th he spoke to you about access egress steps, didn't he?‑‑‑I can't recall.
PN1000
Also on that day there were concerns raised in relation to a temporary power board weren't there?‑‑‑That's correct, that was his original reason for conversation.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1001
One of the things that happened to that temporary power board was that an electrician fixed it properly to where it was meant to be, didn't he?‑‑‑No, that's incorrect. I called up Hamish to go and investigate the suspect matter with the electrical board and he called me some time later saying that he couldn't find any fault with it.
PN1002
What I want to suggest to you is that he attached it more securely and that it was after the attachment of the board more securely that people agreed, including Mr Bland, that it was safe?‑‑‑That's not how I recall the events.
PN1003
In terms of how you recall events Mr Kun, do you rely on - when you made this affidavit did you rely on the notes that you attached to your affidavit to refresh your memory. Is that right?‑‑‑I presume so, yes.
PN1004
The notes in respect of the 26th - they're attachment DK03 - these aren't the notes that you would make in the normal course of your business are they?‑‑‑It depends on the situation. Being the severity of that nature for that day, yes.
PN1005
What you are required to do in your job is to make notes in the site diary?‑‑‑Yes.
PN1006
And to record all matters in the site diary, that's right isn't it?‑‑‑Yes.
PN1007
Not to type up separate statements but, rather, to record in the diary?‑‑‑The site diary is limited, it's a general overview. If there's more to the events then usually you do something separate.
PN1008
Of course these notes aren't your complete notes of that day, are they?‑‑‑From what I recall, yes, they would have been my notes that - - -
PN1009
It says page 1 of 2 doesn't it?‑‑‑Yes, it does.
PN1010
That indicates, and you'd agree, that that means there was a second page?‑‑‑Possibly could be.
PN1011
Possibly? Well, if there's no second page would you put 1 of 2 at the bottom? That's laughable isn't it?‑‑‑I've got no answer for that.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1012
I know, because there was a second page wasn't there?‑‑‑Maybe Microsoft Word sometimes saves a blank second page, I'm not too sure.
PN1013
Does it? Were you just speculating then were you, about Microsoft Word properties and how it works?‑‑‑Yes, just guessing.
PN1014
Yes, just guessing. You say you typed this. Is that right?‑‑‑From what I recall, yes.
PN1015
What do you mean from what you recall; did you type it or not?‑‑‑Yes.
PN1016
Your evidence yesterday was - - -?‑‑‑I did, yes.
PN1017
What did you mean, when you said, "from what I recall"?‑‑‑What I recall I was typing it, yes.
PN1018
So you would have typed page 1 of 2 wouldn't you?‑‑‑Not that I can recall.
PN1019
You have got no idea, have you, when you made this what you call statement, do you?‑‑‑Not the actual day, no.
PN1020
Quite frankly, if you were just doing a note of what occurred on the day you wouldn't set out who you were, you were employed by, for how long you were employed. That's not part of the normal notetaking in the business is it?‑‑‑No, not one and two, I wouldn't have done that, no.
PN1021
No, so this was a statement for a different purpose at a different time wasn't it?‑‑‑No, I wouldn't say that, it wasn't for a different purpose or different time, no.
PN1022
Mr Kun, if this was a normal note taken in the normal course of business you would have had no reason to start of putting paragraphs one and two in there, would you, because it would form part of a site record. You accept that don't you?‑‑‑Yes.
PN1023
So this was a note, or statement, taken, made, by you at a different time from the events and for a different purpose?‑‑‑No, there was no different purpose.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1024
I asked you before that when you made your affidavit you refreshed your memory by looking at these notes?‑‑‑Yes.
PN1025
I think in paragraph 43 you say that these notes are true and correct to the best of your knowledge, yes?‑‑‑Yes.
PN1026
When you made these notes what purposes did you say you had when you made them?‑‑‑Just recalling the events of the day.
PN1027
Yes, and it was important to record accurately?‑‑‑I would think so, yes.
PN1028
Yes, and it was sufficiently serious for you to type up separate statements, so it was a matter to which you gave serious consideration?‑‑‑Sorry, what's the question?
PN1029
The events, Mr Kun, being serious enough for you to write up a separate statement were obviously serious enough for you to give serious consideration as to the accuracy of the notes that you took?‑‑‑Yes.
PN1030
Part of the - you say - accuracy that you had heed to was to provide as full a picture and be as accurate as possible as to the events which had occurred?‑‑‑Yes.
PN1031
Can I suggest to you that in that event where your affidavit includes matters that aren't in your notes that they're just a bit of an invention, can I suggest?‑‑‑Well, no, not an invention.
PN1032
You have made these notes saying you understood the need to be accurate and understood the need to be complete. Have a look at paragraph 28 of your affidavit, for example. That is not in your notes is it?‑‑‑Not on page 1, no, of my notes.
PN1033
It might have been on page 2 you reckon?‑‑‑Possibly.
PN1034
Yes. Or maybe it just didn't happen at all, and you just made this up to put it into para 28. That's the other explanation, isn't it?‑‑‑No. No, that hasn't been made up.
PN1035
And, you see, look at para 29?‑‑‑Yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1036
That's not in your notes either, is it?‑‑‑No.
PN1037
That's another little thing that might be on page 2, do you say? The page two that you now remember having made; is that right? Is that what you say?‑‑‑No, I'm not sure. No.
PN1038
Or is it just another matter that you've made up?‑‑‑No, I never made that up. No.
PN1039
Mr McEwan ever invited you to a meeting?‑‑‑Meeting in regards to?
PN1040
Anything?‑‑‑Yes.
PN1041
He has?‑‑‑Yes.
PN1042
And has he ever said words to the effect, "Hey, Dan, Come on, let's go and have a meeting."?‑‑‑No.
PN1043
Or words to the effect of, "Come on, let's go down and have a meeting."?‑‑‑No. It'd be usually something more specific, "We've got a PCG meeting."
PN1044
Okay?‑‑‑"Come along". Or we've got a particular type of meeting.
PN1045
Well, you've got a particular meeting, and "Come along", words to that effect?‑‑‑Possibly, yes.
PN1046
Yes. And when he says words to that effect to you, you don't feel forced, do you?‑‑‑Not necessarily, no.
PN1047
What do you mean not necessarily. Do you feel forced or not forced?‑‑‑No.
PN1048
No. And so when Mr Bland says, "Come on, we're going down to have a meeting", there is no reason for you to believe, was there, that he was forcing people by using those words, was there?‑‑‑The word "force", if I use the word "force" it wasn't necessarily in an intimidating physical manner. It was more from the comments that I heard around that time of when that was occurring.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1049
You see, yesterday you gave evidence, Mr Kun that words that Mr Bland were using were the words like I've just put to you and like what you've put in paragraph 21 of your affidavit. All right. And I think you gave in evidence yesterday, he said words to the effect, "Come on, come down. Come on, we're going down for a meeting." You remember giving that evidence?‑‑‑Yes.
PN1050
Yes. And they were the words which you say you claim to - Mr Bland forcing people. But what I'm suggesting to you is that those words in no way equate to forcing, in the same way as Mr McEwan inviting you to a meeting doesn't equate to forcing; you agree with that, don't you?‑‑‑Yes, forcing is probably the wrong terminology in that situation.
PN1051
Wrong terminology? You agreed that this statement was true and correct, didn't you?‑‑‑Yes.
PN1052
You adopted it into evidence?‑‑‑Yes.
PN1053
Yes. And you're now saying it's wrong?‑‑‑No. What I was saying was that the comments like, "We're fed up with this crap", and, you know, "We've had enough of this", led me to feel that they were being forced, if that's the word, to do it.
PN1054
That wasn't your evidence yesterday, was it? You were asked specifically yesterday about what led you to believe people were being forced, and why you used "forced" in paragraph 22. You recall those questions from Mr Herbert?‑‑‑Yes.
PN1055
Yes. And do you recall your answer to that, or do you want me to remind you again?‑‑‑Well, yes, he was, from what I recall of the day, he was ‑ ‑ ‑
PN1056
I'm not asking you about recalling today?‑‑‑Okay.
PN1057
I'm asking you about yesterday when Mr Herbert asked you what led you to use the word "force". Do you remember those questions?‑‑‑Yes.
PN1058
Yes. And do you remember your answers to those questions?‑‑‑Yes, it was generally saying, "Come on guys, come on."
PN1059
Yes. "We're going down to a meeting."?‑‑‑"Come down. Come down." Yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1060
Yes. And what I'm suggesting to you is that any rational, reasonable person wouldn't interpret those words as forcing anyone?‑‑‑It was the response to those words that made me think of the word "force", but ‑ ‑ ‑
PN1061
That's not what you gave evidence about yesterday though, is it? You're changing your mind now?‑‑‑I'm not changing my mind. It's yes, it's due to the nature of the actions. Yes, how it was, but ‑ ‑ ‑
PN1062
Yes. The nature of the actions, of which you gave evidence yesterday, were Mr Bland saying, "Come on, we're going down to have a meeting." That's the actions you referred to yesterday. The only ones. Now, why can't you just accept what I suggest to be a reasonable proposition, Mr Kun, that no reasonable basis to say that those words amount to "force"?‑‑‑Again, the feeling that I got of him continually telling the guys to come down, and the reactions to that, it's some situations, it felt like people were going against their will.
PN1063
All right. So when someone says, "Come on, let's have a meeting", we take it that's forcing someone?‑‑‑No.
PN1064
That's your evidence?‑‑‑Not saying it like that, no.
PN1065
No. Now, can I suggest to you that Mr Bland returned to the site on 27 March 2015. Don't look at your statement. Could you not read your statement, please, and answer my question?‑‑‑I'm looking for the dates. I don't - not too sure what day that is referring to.
PN1066
Well, I put the date to you, I said 27 March 2015?‑‑‑I can't recall, sorry.
PN1067
I'm going to show you these photographs. These are the documents marked MFI yesterday, your Honour.
PN1068
MR HERBERT: Well, your Honour, I have a difficulty with that, and I object to this line of questioning. You were informed in emphatic terms from the Bar table yesterday that those photographs were taken on 26 March. My friend was at great pains to tell you that.
PN1069
MR WHITE: Yes. Well ‑ ‑ ‑
*** DANIEL ROBERT KUN XXN MR WHITE
PN1070
MR HERBERT: And now there's been, it appears, in alteration in those instructions from who knows where. And there's now a proposal to put those photographs to the witness based on another assertion from the Bar table that they were taken on another date. There is not a shred of evidence about any of this. There hasn't been a proposal to call any evidence and there isn't going to be called any evidence, and I object to these documents being put on the basis that they were taken on another day or any day at all, given the way the matter has been conducted yesterday.
PN1071
MR WHITE: Right. Yesterday I put emphatically my instructions. I'm now putting to this witness my instructions, and I don't, in my submission, see anything difficult about putting instructions and putting material to witnesses. That's what one does. If he can identify these photographs, then well and good. If he can't, well and good.
PN1072
THE SENIOR DEPUTY PRESIDENT: Put the photographs to him. I'll have to just weigh all of this up as to what turns on these claims in general when I look at all of this, but you can step through the photographs if you want to, and we'll see what comes of it, but again I do recall this being on the basis of different instructions yesterday.
PN1073
MR WHITE: Yes, they were.
PN1074
THE SENIOR DEPUTY PRESIDENT: So I don't know what ultimately can turn on all of this, but you can step the witness through those photographs.
PN1075
MR WHITE: And we have advised the respondent of the circumstances of those change of instructions. If my learned friend wants to make something of that then he can do so. We will deal with it then. Can I ask the witness to be shown MFI"E".
PN1076
THE SENIOR DEPUTY PRESIDENT: Did you have another set or did you want to ‑ ‑ ‑
PN1077
MR WHITE: Yes, we had another set to show.
PN1078
THE SENIOR DEPUTY PRESIDENT: You want to give my set.
PN1079
MR WHITE: Now, Mr Kun, can I suggest to you, I've already suggested to you, that Mr Bland returned to the site on 27 March 2015, and that you accompanied him around the site. Do you remember that?‑‑‑I don't recall exactly.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1080
And can I suggest to you that during that time walking around Mr Bland took photographs, and the photographs I'm just about to take you to are photographs I suggest to you were taken on 27 March 2015. All right. Now, look at the top one there, MFI ‑ ‑ ‑
PN1081
THE SENIOR DEPUTY PRESIDENT: Sorry, can we just stop for a moment. I'm not sure, were there questions there?
PN1082
MR WHITE: No, I'm just making sure that the witness knew the basis upon which I'm putting the questions.
PN1083
THE SENIOR DEPUTY PRESIDENT: You're not asking him whether he saw Mr Bland take photographs?
PN1084
MR WHITE: Yes. All right. I'll break it up. I'll break it up. Break it up into little parts: (1) I've suggested to you that Mr Bland attended the site on 27 March 2015. Now, I put that ‑ ‑ ‑?‑‑‑He may have, yes.
PN1085
He may have?‑‑‑Yes.
PN1086
And can I suggest to you that on that day he walked around the site accompanied by you and Mr McEwan?‑‑‑Not that I recall.
PN1087
He may have?‑‑‑But he may have.
PN1088
And I can suggest to you that during that walk around he took photographs?‑‑‑I don't recall any photographs being taken.
PN1089
And spoke to you and Mr McEwan about the matters that he took photographs of?‑‑‑I don't recall at the moment, sorry.
PN1090
And what I'm going to do now is take you to the photographs, which I've suggested to you were taken on 27 March 2015. The first one is MFI"E". Now, do you see that red bunting in the top part of that photograph?‑‑‑Yes.
PN1091
That red bunting can I suggest to you would've been put up by the formworker who's beginning to strip the formwork behind it?‑‑‑Possibly, yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1092
Yes. It wasn't the practice of RCQ, at the time, to put up bunting around access or non-access ways, was there?‑‑‑Yes. We usually use a green and white tape for access ways as bunting.
PN1093
And can I suggest to you, at this time, there were no areas which were greened off to prevent people walking? That's right, isn't it?‑‑‑Not to my knowledge. No.
PN1094
Yes. And so, looking at this photograph, you recognise that as part of the site?‑‑‑Yes, not 100 per cent. It may be around the ramp area, underneath that ramp, but I couldn't be certain.
PN1095
Can I suggest to you it's on the lower level near the ramp?‑‑‑Possibly.
PN1096
Yes. It does look familiar I think you gave evidence of; is that right?‑‑‑Yes, it looks familiar, but I couldn't be 100 per cent sure.
PN1097
And clearly people have been working there. Someone's stacked some what's that formwork?‑‑‑It looks like yes, there's some material stored there.
PN1098
Yes. And after the formwork the next trade to go on his the plumbers, isn't it?‑‑‑It depends on what situation you're talking about.
PN1099
Well, you see the poly pipe there. It's clearly that a plumber has come along and put supplies there?‑‑‑Yes, that could be just storage area again.
PN1100
It's clear that, from this photograph, that this is an area where people have walked and worked, isn't it?‑‑‑Not necessarily worked. If it's a storage area sometimes they just store material and certain portions of the project.
PN1101
All right. And to store material means you've got to walk into there, don't you?‑‑‑Generally, yes.
PN1102
Yes. Yes. And you see those three big holes, maybe more than three, big square holes there?‑‑‑Yes.
PN1103
And they're obviously a trip hazard, isn't it?‑‑‑Yes, they could be. Yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1104
What do you mean could be? Are holes in the ground, holes in formwork like that sometimes a trip hazard and sometimes not, Mr Kun?‑‑‑Yes. If you're in the area it could be a trip hazard, yes.
PN1105
And it's an area where obviously people have worked and walked, isn't it?‑‑‑Well, it's an area where they've stored material, yes.
PN1106
Put there by the fairies or people perhaps walking there?‑‑‑Well, probably walking with a pallet trolley of some description. Yes.
PN1107
Yes. And Mr Bland raised concerns with you about the dangers that are apparent in this photograph, didn't he?‑‑‑I can't recall the exact conversation.
PN1108
Now, look at MFI"F". And, once again, that's, can I suggest to you, on the lower level beside the ramp and beside the walkway?‑‑‑It could be, yes.
PN1109
Well, you recognise it as such, don't you?‑‑‑It could be anywhere but, yes, it may possibly be on the bottom of our ramp area.
PN1110
And was this ramp regarded as the second access or egress point to the deck?‑‑‑Not that I can recall. We never used the ramps as actual access ways, no.
PN1111
All right. And you will see that scaffolding right in the middle top third that sits at an angle to the ramp. You'd accept that's not stacked as per manufacturer's specifications, is it?‑‑‑The formwork you're talking about or scaffolding you said.
PN1112
Yes. See the formwork with the plate at an angle on the ramp? Do you see that in the middle of the top third?‑‑‑Yes. Yes, yes.
PN1113
And that's clearly not installed according to manufacturer's specifications, is it?‑‑‑This seems very similar to the other photo we looked at yesterday, so, again, that really depends on the situation of what that A-frame is doing as to the ‑ ‑ ‑
PN1114
And can I suggest to you that the specifications are that the plate on which the formwork sits needs to be flat or secured by chocks?‑‑‑If it's taking any significant load, yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1115
It's not just if it's taking any significant load. It's when it's been put up for use it needs to be installed according to proper manufacturer's specifications, isn't it?‑‑‑Possibly, yes. If it's ‑ ‑ ‑
PN1116
Not possibly yes. It's yes, isn't it, Mr Kun?‑‑‑If it's supporting wet concrete, yes, definitely.
PN1117
It's not just if it's supporting wet concrete. If you put something up to be used then it needs to be put up properly, doesn't it?‑‑‑Yes, obviously. Yes.
PN1118
And it's not put up properly to have it sitting at an angle like that, is it?‑‑‑Honestly I couldn't comment.
PN1119
Regardless of whether or not it might pose a bigger or a lower risk, that's not done properly?‑‑‑I don't know what that A-frame is doing, so it could be doing nothing. It might just be sitting there supporting nothing, so in that situation, you know, I couldn't comment looking at that photo. I mean, I don't know what it's doing, to be honest. There's not enough information there, so ‑ ‑ ‑
PN1120
MFI"C", if you look at the next one. That's on the lower level. You recognise that as being on the lower level, do you not?‑‑‑I couldn't be 100 per cent sure, no.
PN1121
And can I suggest to you that you didn't have designated access ways on this site?‑‑‑Yes, we did.
PN1122
Yes. And people walked through this area?‑‑‑What area is that?
PN1123
Look, I've suggested to you it's on the lower level of the site?‑‑‑People walked in certain areas on the lower levels of site, yes, but I don't know what that photo ‑ ‑ ‑
PN1124
Can I ask you to look at MFI"B".
PN1125
MR HERBERT: No, I'm sorry, the witness was finishing his answer when you spoke over the top.
PN1126
THE WITNESS: I said but, I don't know what that photo where that's at so if it's in relation to that, I'm not sure.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1127
MR WHITE: MFI"B"?‑‑‑Yes.
PN1128
Now, you recognise that as being on the ramp at the lower level, don't you?‑‑‑Again, not 100 per cent sure, but it could be at the bottom of that ramp. Yes.
PN1129
But you recognise, at least, as being on that site?‑‑‑I couldn't be 100 per cent sure. Possibly.
PN1130
MFI"A", you recognise that having regard to the buildings in the background and whatnot as being on the top deck of the site, don't you?‑‑‑I couldn't be 100 per cent sure.
PN1131
Look carefully at the buildings in the background there, Mr Kun?‑‑‑I don't see any buildings, so I couldn't be certain. No.
PN1132
You see, you also recognise this as the step problem that was raised with you by Mr Bland, don't you?‑‑‑From this photo I couldn't be 100 per cent sure that's the photo that indicates what we may have been talking about. No.
PN1133
And after he went around with you on the 27th I'll just go back a step. He raised with you the problem with this step, can I suggest, on the 26th, and on the 27th this is how RCQ made good the problem of the different height steps, isn't it?‑‑‑I couldn't be certain looking at this photo, that's - what was the evidence of that situation, no.
PN1134
And Mr Bland spoke to you and Mr McEwan, and it was thereafter arranged immediately that proper scaffold step be put on, wasn't it? That's what happened?‑‑‑There was a situation with the step that I instructed the scaffolder to repair, but looking at that photo I couldn't tell you if that was that situation, no.
PN1135
Have a look at the next photograph. It's clear now that that was the step, isn't it?‑‑‑No, that ‑ ‑ ‑
PN1136
That's MFI"D"?‑‑‑Yes, that could be anything.
PN1137
You see, Mr Kun, what I'm suggesting to you is that you can recognise, particularly MIF"A", the step with the loose board at the bottom of it, as part of the site, can't you? You're just being a bit careful in your evidence now?‑‑‑One hundred per cent, no, I couldn't. I couldn't ‑ ‑ ‑
*** DANIEL ROBERT KUN XXN MR WHITE
PN1138
Ninety-nine per cent?‑‑‑Not a I couldn't be certain. I couldn't even be certain when that photo was taken, to be honest.
PN1139
Now, what I want to suggest to you is that Mr Bland took those photographs in the company of you and Mr McEwan on the 27th and spoke to you about each of those matters while he was doing so; that's right, isn't it?‑‑‑Not that I can recall, no.
PN1140
That was 27 March. You see, he had been on site on 3 February, hadn't he?‑‑‑I couldn't tell you sitting here.
PN1141
Well, he was on site relatively regularly, wasn't he?‑‑‑In what timeframe?
PN1142
Well, the first three months. Well, you started when?‑‑‑I started in March.
PN1143
Yes. So March, April?‑‑‑Yes, he was yes, I seen him on site a few occasions.
PN1144
Yes?‑‑‑In March and April.
PN1145
Yes. And in March all right. So you weren't there on 3 February; is that right?‑‑‑I wasn't there, no.
PN1146
All right?‑‑‑I wasn't on site.
PN1147
Now, 31 March, Tuesday 31 March, once again, don't look at there's no need unless I ask you to look at your statement, there's no need for you to do so. You say you made notes, do you, of the events of 31 March, being DKO5. Have a look at DKO5?‑‑‑Yes.
PN1148
Now, this is page 1 of 2 and there's two pages. You see that?‑‑‑Yes.
PN1149
Now, once again, when you took these notes you were careful to be accurate?‑‑‑Yes.
PN1150
Careful to record everything that occurred?‑‑‑Everything, yes.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1151
Everything?‑‑‑That was that I recalled.
PN1152
Evidence you recalled?‑‑‑Yes.
PN1153
Yes. How long after 31 March 2015 did you make these notes?‑‑‑I can't recall exactly. It would've been a week or two.
PN1154
A week or two?‑‑‑Yes, from memory.
PN1155
And a week or two. Was that the same as the earlier notes that I took you to?‑‑‑Possibly, yes.
PN1156
And you read these notes and used these notes when you prepared this affidavit, did you?‑‑‑Yes.
PN1157
All right. You see, look at para 56. You set out a whole conversation there, don't you? Including "Not true, Eddie, you're lying to your own members." You see that?‑‑‑Yes.
PN1158
That was just a little bit of an addition you put in because you accept that didn't appear in your notes?‑‑‑No, that definitely did occur.
PN1159
So are these notes that you took, the ones that you were absolutely careful to be accurate and complete in, some months later when you made this affidavit, your memory has improved over time, has it? Is that what you say?‑‑‑Yes.
PN1160
You see, you didn't ‑ ‑ ‑?‑‑‑There was other things I remembered. Yes.
PN1161
Yes. And if that had occurred it would've been in your notes, wouldn't it?‑‑‑Not necessarily, no.
PN1162
All right. So you didn't make sure that you put complete accurate notes?‑‑‑Yes, they're accurate. Yes.
PN1163
Yes. You ignored the word I said about "complete", did you?‑‑‑Well, they were complete from my notes point of view, yes. What I wrote there.
*** DANIEL ROBERT KUN XXN MR WHITE
PN1164
Complete from the notes point of view except the little bits you want to add in later?‑‑‑No, that's not true. No.
PN1165
Yes. And, sorry, just go back very briefly to the 27th. What I want to suggest to you when Mr Bland was on site on 27 March he wasn't required to, or asked to show a right of entry permit? Might I suggest that to you; that's right, isn't it?‑‑‑I can't recall to be honest.
PN1166
Yes. All right. Now, you see, can I suggest to you that Mr Bland coming on the site after March, has come on without you requiring him to show right of entry permit; that's right, isn't it?‑‑‑On occasions.
PN1167
Yes?‑‑‑Yes. It depends on his reason for being there.
PN1168
Yes. Yes. And if he comes on he tells you why he's there. If he's had complaints from his members or concerns raised by his members, he tells you that, doesn't he?‑‑‑Yes.
PN1169
Yes. And he rings you up before he gets there most often, doesn't he?‑‑‑No.
PN1170
And he makes sure he goes to see you when he first gets there and tells you what his concern is?‑‑‑Most of the time, yes.
PN1171
Yes. And you discuss it with him, and then you go and look at the area of concern that he's raised?‑‑‑Not all the time.
PN1172
Most of the time, isn't it?‑‑‑It depends on the situation.
PN1173
Yes?‑‑‑Yes. It's hard to remember every situation.
PN1174
And these aren't circumstances in which you've asked him to produce his right of entry permit at all; that's right, isn't it?‑‑‑I can't remember exact situations, but it depends ‑ ‑ ‑
PN1175
You can remember that from March onwards pretty well, when Mr Bland's been on site, you haven't asked him for his right of entry permit. You can remember that much, can't you?‑‑‑Since when, sorry?
*** DANIEL ROBERT KUN XXN MR WHITE
PN1176
Since about the end of March 2015? You knew that was the period I was talking about, Mr Kun, didn't you?‑‑‑The what, sorry?
PN1177
You knew that was the period I was talking about?‑‑‑31 March.
PN1178
From the end of March 2015?‑‑‑Yes.
PN1179
Are you confused by the question?‑‑‑I am, sorry, yes. What was the after 31st?
PN1180
Yes?‑‑‑After March?
PN1181
Yes?‑‑‑Yes, there wouldn't have been too many occasions where I've asked his permits, no.
PN1182
Yes. None at all, can I suggest to you?‑‑‑Possibly. Not that I can recall, no.
PN1183
And you can't recall, after 31 March, ever asking him for his right of entry permit?‑‑‑Not that I can recall, no.
PN1184
And when he'd gone on site he tells you the issue, which has been raised with him; that's right?‑‑‑It depends on what situation. There's different situations.
PN1185
When he raises issues with you, you then together go and try and resolve those issues; that's right, isn't it?‑‑‑He doesn't always come to site over an issue, so I'm not too sure which day or what episode you're referring to so ‑ ‑ ‑
PN1186
When he's gone on site after 31 March and raised an issue with you, you and he then go out to where the problem is, or alleged problem is, and try and resolve it; that's what happened, hadn't it?‑‑‑I can't recall too many episodes after that time of actually going out resolving issues with Eddie.
PN1187
It has occurred though, hasn't it?‑‑‑He has come to site, yes.
PN1188
Thank you. No further questions, Your Honour.
SENIOR DEPUTY PRESIDENT RICHARDS: Re-examination?
*** DANIEL ROBERT KUN XXN MR WHITE
RE-EXAMINATION BY MR HERBERT [11.15 AM]
PN1190
You were asked some questions in relation to the photographs about passageway areas and you referred to green coloured tape or bunting or something of that kind?‑‑‑Yes, that's - - -
PN1191
What was that about? What's the use that's made of green coloured - - -?‑‑‑Well, for designated walkways we prefer to use green and white tape which identifies walkways and the red tapes and red barriers generally identify areas to avoid.
PN1192
To if you're looking at the various photographs that have been shown to you, then can you tell from looking at a photograph whether those areas are designated walkways or not in relation to whether there exists that tape or bunting that you've described, the green?‑‑‑Well, if they are on our site, they wouldn't be designated walkways, no, so the - - -
PN1193
Why do you say that? From those photographs, if they are on your site, they wouldn't be designated walkways and why can you say that?‑‑‑Because they're not identified. Usually the green and white tape identifying walkways.
PN1194
Do you have any specific memory of - in your statement you have dealt with an entry on 26 March - - -?‑‑‑Yes.
PN1195
- - - in some detail and you have the notes attached to your statement in relation to that. Do you have any specific recall of there being an entry the next day, the very next day, by Mr Bland?‑‑‑Honestly I can't recall. He may have but I can't - I can't recall.
PN1196
So you have no recollection that?‑‑‑Not sitting here right now, no. I mean, short of going back to diary notes or something of that event but - - -
PN1197
Thank you. I have nothing further.
PN1198
SENIOR DEPUTY PRESIDENT RICHARDS: Good. Thank you. The witness is excused.
MR HERBERT: Thank you.
<THE WITNESS WITHDREW [11.17 AM]
*** DANIEL ROBERT KUN RXN MR HERBERT
MR HERBERT: I call Michael McEwan.
<MICHAEL DAVID MCEWAN, AFFIRMED [11.17 AM]
EXAMINATION-IN-CHIEF BY MR HERBERT [11.17 AM]
PN1201
MR McEwan, could you tell the Commission your full name, your professional address and your occupation, please?‑‑‑Michael David McEwan. I'd prefer not to give my address if I don't need to.
PN1202
Your business address?‑‑‑17 Duporth Avenue, Maroochydore.
PN1203
Your occupation?‑‑‑I'm a construction project manager.
PN1204
Who is your employer?‑‑‑RCQ Construction Pty Ltd.
PN1205
Have you prepared two affidavits containing evidence which you are able to give in these proceedings?‑‑‑I have.
The first of those affidavits was sworn by you on 11 September 2015 and comprises 70 paragraphs, is that so?‑‑‑Correct.
PN1206
And four exhibits?‑‑‑Correct.
PN1207
Are the facts and circumstances of that affidavit, to the best of your knowledge, true and correct?‑‑‑Yes, they are.
PN1208
The second of your affidavits, was it sworn in reply to some other matters and was it sworn by you on 21 October 2015 and consists of 18 paragraphs?‑‑‑Yes, I believe that's the case.
PN1209
Are the facts and circumstances set out in your second affidavit, to the best of your knowledge, true and correct?‑‑‑They are.
PN1210
Mr McEwan, were you asked to - were you shown some photographs yesterday in the course of providing instructions to your legal representatives and as a result of that have you sought out some documents relating to the issue of the stairways and the condition of scaffold steps with inadequate step tread differences?‑‑‑I have. Yeah, I thought it - I thought I'd refresh my memory and have a look at some of the safety committee minutes.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1211
Is that one of the issues that was raised - that's depicted in one of the photographs - - -?‑‑‑It is, yes.
PN1212
- - - that you were shown yesterday. Well, before I come to that, perhaps I'll take you to those photographs and I'll give you - I think we have a full set here. Can I take you - the first of those in that bundle should be - do you see that, Mr McEwan, the one I have here?‑‑‑Yes, that one.
PN1213
Yes, that one there. Are you able to say whether that is a photograph of anything situated on the worksite and that you were engaged in early 2015?‑‑‑It does look like my project, yes.
PN1214
What is depicted? There are a set of what appears to be stairs depicted there, is that right?‑‑‑Yes, scaffold acts as stairs.
PN1215
If you go to the fourth photograph in that bundle, it should show a leg with a - yes. Does that appear to depict the same location?‑‑‑It does look like that, doesn't it?
PN1216
You look at it as carefully as you like. Do they appear to be two photographs of the same spot?‑‑‑You can see the markings on the timber are the same in both photos, so yes.
PN1217
The difference between them seems to be that on the first photograph that I've shown you there appear to be some pieces of timber on the ground making up a makeshift first step, whereas in the photograph which is MFI"D", the fourth photographs, those pieces of timber don't appear to be there. Is that right?‑‑‑Correct.
PN1218
Do you have any idea - have you at any time - do you have any recollection of seeing that situation or that circumstance or are you able to explain why it is that those pieces of timber are there in one photograph and not in the other?‑‑‑Yeah, yeah, I can. In fact, I actually placed those bits of timber because, at that time, the scaffolders who were responsible for placing and completing the additional step were having a two-hour meeting downstairs, so they were unavailable so I did with what was - - -
PN1219
What date was that?‑‑‑I couldn't be sure. I'm not sure what level that is actually on. I remember doing it.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1220
The scaffolders were having a two-hour meeting?‑‑‑Yes. True, yes, they were.
PN1221
Do you recall what date that occurred in the context of the events that you have described in your affidavit?‑‑‑Yes. It would've had to have been the 26th of March, I believe.
PN1222
Those step treads at either end seem to be secured by lengths of scaffolding, is that right?‑‑‑Yes.
PN1223
Is that the usual way in which access stairs of that kind are constructed for temporary access into locations of that kind on building sites?‑‑‑It could be done in any number of ways. It could be done with a - - -
PN1224
Well, is that a common way?‑‑‑Yeah. That was - that's the way that we had procured those stairs to be done by the scaffolder. We could alternatively have asked the form work contractor to complete those steps. In this case, we contracted the scaffolder to do that work.
PN1225
In relation to the first photograph there appears to be a significant difference between the step up onto the first step and then - as distinct from the step up to the second step. Perhaps I should have rephrased that. The first form work step, leaving aside the pieces of timber that you say you put there, there is a significant difference between the first step riser and the second step riser. Is that correct?‑‑‑Yes.
PN1226
How would one rectify that if it was thought to be an issue, a safety issue?‑‑‑Yeah. So the usual sequence of events on the typical floors is once the form work deck is completed, then we lay in the precast panels and then the scaffolder will have to make a - do a modification to the scaffold stair to complete that stair. But there will be a point in time during that sequence that the final step won't be in place.
PN1227
If you wished to rectify that, ordinarily how would you go about it in this sort of situation?‑‑‑It's the scaffolders' responsibility to do that in the normal sequence of events.
PN1228
What would be the - how long would you expect a job like that to take, to rectify that situation?‑‑‑Talking about 15 minutes, 20 minutes.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1229
You recall then placing those pieces of timber in that position on the 26th while the scaffolders were having a two-hour meeting?‑‑‑Yes.
PN1230
That's the two-hour meeting you have referred to in your affidavit?‑‑‑Yes.
PN1231
To return to the matter I initially asked you, overnight have you - when those photographs were produced yesterday and you were shown them, overnight have you taken the course of refreshing your memory, as you call it, about those circumstances? And could I ask you to look at this?
PN1232
MR WHITE: I object. The witness has refreshed his memory. If this is being put as another means of refreshing memory, then it is not to be done.
PN1233
MR HERBERT: It's not put as another means of refreshing memory. It's a document which - a record of the company which he produces and which I am seeking to tender through him. It is not about refreshing memory. That's his term, not mine. It's for the purpose of producing a record of the company about an event, a circumstance that occurred in the course of this job that has a relevance to the evidence which was all produced yesterday for the first time in relation to this matter. We are trying to catch up but we're being surprised. I gave my friend the courtesy of giving a copy of that document before we started this morning so he knows what the document is but I haven't had an opportunity for Your Honour to know and understand what is going on in relation to it.
PN1234
SENIOR DEPUTY PRESIDENT RICHARDS: No, I don't but if it is for the purposes you say, then proceed.
PN1235
MR HERBERT: Thank you. (To witness) Would you look at this document, please.
PN1236
HIS HONOUR: Is there a copy?
PN1237
MR HERBERT: There are two. I have two. (To witness) I'm sorry. Do you have the original of that document with you? The one I've just given you now, do you have the original of that document still with you because I think we're a bit short on numbers at the Bar table - sorry, no cancel that. It's now been found. Could you look at that document and could you tell me what that is?‑‑‑These are the minutes of our safety committee - weekly safety committee walks as part of our consultative requirement of our safety management system.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1238
You conduct a safety work and then record it, is that how it works?‑‑‑The safety committee attend a walk or the committee representatives as voted by their fellow workers do a walk. Then they'll come down and meet and talk about those hazards that have been identified during the walk and then those items will be minuted and attributed an action and a hierarchy of generally that it gets a risk rating of sort of one to four to prioritise the level of risk of the particular hazards and identifies responsibility as to whose responsibility to close out those hazards.
PN1239
Just returning briefly to this first photograph, which was MFI"A", what level - you say you put those pieces of timber there on the ground, what level was that at in the project on 26 March?‑‑‑I'm thinking it was level 4.
PN1240
Returning to this - - -?‑‑‑It was definitely above level 3 because I know there was a second staircase that we had to climb to get to that particular floor. So there was one stretch of stair which took us from ground to level 3, then a secondary stair that took us up. So it had to be at least level 4, if not five.
PN1241
Can I take you to this safety committee minute. Is this minute part of the normal processes of the company operations and is kept with the business?‑‑‑Yes. It's part of our system.
PN1242
You have retrieved this from where?‑‑‑From - after seeing that photo yesterday, I just don't remember such a big deal being made of that particular hazard because it occurred on every floor and twice a floor, because we were doing split pours. So the usual sequence was the stair would be made, the panel would go in, and then the scaffolder would return to complete the final step. So whilst it was a hazard, it wasn't jumping out to me as a major hazard, certainly not one where access needed to be excluded.
PN1243
Could I take you over to the third page of that document, the heading "New Business - Safety Walk". There's a description there, "Scaffold access. The level 2 deck needs step as hop up too," I assume that should be "too", "too high, 600ml," that description there?‑‑‑Yeah.
PN1244
What does that describe?‑‑‑Exactly what we see in the photo.
PN1245
The action there that is in bold, "DLP", who is DLP?‑‑‑That's the scaffold company.
PN1246
"To complete within 12 hours." Is that the action prescribed by the safety committee?‑‑‑Yes.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1247
Is that indicative of the level of urgency or seriousness of that particular problem?‑‑‑Well, that - a hazard as that if you - by the time the safety walk was done and the meeting, it would generally take the boys through to sort of 11, 12 o'clock, so there would generally be a couple of hours left of that particular day, which was usually on a Wednesday. So if they didn't complete that task that afternoon, they'd be given the next day as well. So a day and a half would be reasonable.
PN1248
I tender that minute of the HSR Safety Committee Meeting.
PN1249
SENIOR DEPUTY PRESIDENT RICHARDS: Can we just go back and do the statements first of all. I don't think we've taken up the two statements from Mr McEwan.
PN1250
MR HERBERT: I'm sorry.
SENIOR DEPUTY PRESIDENT RICHARDS: We'll mark the earlier of those as FWB4, the later as FWB5. We will mark this as FWB6.
EXHIBIT #FWB4 WRITTEN STATEMENT OF MR MICHAEL McEWAN SWORN 11/09/15.
EXHIBIT #FWB5 WRITTEN STATEMENT OF MR MICHAEL McEWAN SWORN 21/10/15.
EXHIBIT #FWB6 MINUTE OF HSR SAFETY COMMITTEE MEETING.
PN1252
MR HERBERT: Just finally in relation to FWB6, the committee meeting. In the attendees, the last attendee on that list was Mr Bland, is that right? Is that Eddie Bland?‑‑‑Yes.
PN1253
Under what circumstances did he come to be there?‑‑‑I invited him to attend our next safety committee meeting, so on the 3rd of February when I met with him and invited him to go for a walk through the basement with Mr Bateman. At that time, I also invited him in the spirit of cooperation to attend our next committee meeting.
PN1254
Safety committee meeting?‑‑‑Yes.
PN1255
Just further in relation to these photographs that you saw yesterday, could I take you to - it should be the second one in order in the list, and that's this one which shows some water on the ground and some formwork poles?‑‑‑Yes.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1256
Are you able to say looking at that where that is, whether it's on your site and, if so, where?‑‑‑It looks to me to be the ground - the car park ramp between the ground floor and the first floor.
PN1257
Are you able to say whether any part of that area covered with water, for example, is a designated walkway from looking at that photograph?‑‑‑Not - clearly not, and definitely not.
PN1258
Why not? How can you say that?‑‑‑Well, the designated access-way was the stretcher scaffold stair on the eastern side of the project between ground and level 3. There was no reason for anyone to walk up that car park ramp. If that was a designated access-way, it wouldn't be full of formwork like it is. And we also had a policy of having green tape between formwork frames to clearly designate access-ways. And that's not one of them.
PN1259
Is there any of that green tape in that photograph you can see?‑‑‑No.
PN1260
Could I take you to the next one, which is MFI"C". Similarly, is that a designated walkway of any kind? Are you able to say where that is firstly?‑‑‑Difficult to say where that is.
PN1261
Does it appear that it's part of a designated walkway?‑‑‑No.
PN1262
The next one is - we've been to D. If we go to MFI"E", which is the one which has a blue jean leg protruding into the photograph - - -?‑‑‑That one?
PN1263
- - - and some materials on the ground - yes. Is there any sign that that is or could be a dedicated walkway?‑‑‑That's not a dedicated walkway to the lower deck, no.
PN1264
Do you know where that is? Could you recognise it?‑‑‑It looks to me like the construction joint on the ground floor.
PN1265
There are some materials laid down there, appear to be stored there for the time being. Do you know what that area was used for at that time? Are you able say what that material is doing there and why it was there?‑‑‑Yeah. You're looking at formwork that has been stripped out from that area and bundled ready for future use. It looks like the plumbers are storing some pipes in there for future use as well.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1266
Finally, MFI"F", there is a photograph that appears to be intended to depict the foot of a - the horizontal foot of a formwork support which does not have - which is sitting on an angle on a piece of sloping concrete. Do you recognise that location?‑‑‑Yes, I do.
PN1267
Where is that?‑‑‑That's again the same ramp between the ground - the car park ramp between the ground and the first floor. It could be one of two ramps. It could be either between the ground and the first floor, or between the first floor and the second.
PN1268
Should the foot of that scaffolding be in that position?‑‑‑It should but it's incomplete. It also needs a wedge under it before the next core.
PN1269
When the scaffolding is actually installed by the scaffolding contractor - - -?‑‑‑Yeah, that's actually formwork. A formwork frame that one.
PN1270
Formwork, sorry. When the formwork is installed by the formwork contractor, is there any check made as to whether that formwork can become loadbearing in that condition?‑‑‑Yeah. They're required to sign off, a competent person and a formwork engineer, all the formwork systems before concrete is poured. This particular hazard was actually identified by a safety manager as well during his routine walks and that was identified to the formworker who was required to wedge those, which he did before the concrete was poured.
PN1271
Could I show you these photographs? You may not have seen these before, Mr McEwan. The first one there, do you recognise that location?‑‑‑No.
PN1272
The second photograph, do you recognise that location?‑‑‑No.
PN1273
The third photograph, do you recognise that location?‑‑‑It's - it's my project but it could be any typical floor.
PN1274
Can you tell from that which level it is?‑‑‑No.
PN1275
The fourth photograph, do you recognise that location?‑‑‑No.
PN1276
The next one, which is a different scale of the same photograph it would appear, do you recognise that location?‑‑‑It could be - it could be anywhere.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1277
The sixth one, which shows a cluster of reinforcing rods sticking vertically out of concrete, do you recognise that location?‑‑‑No.
PN1278
None of those rods appear to have caps on them, depicted in that photograph, do you see that?‑‑‑I do.
PN1279
What is the - is there any - I understand you don't recognise the location but is there any reason, if that location is on your site, is there any reason why those rods may not have had caps on them?‑‑‑No. It's just an oversight by the steel fixer.
PN1280
The caps we're talking about, can you go back to the second photograph, I understand you don't recognise that location but if you look through the blue mesh there are some reinforcing rods there in the background which have yellow caps on them. Are they the sort of caps that we're talking about?‑‑‑Yes.
PN1281
The next photograph, number 7, the seventh photograph, and the eighth photograph, do you recognise either of those locations?‑‑‑That one does - it could be any typical floor.
PN1282
It could be, I'm sorry?‑‑‑Any typical floor.
PN1283
Could I see that one again, sorry? That is - - -?‑‑‑With the - the coloured cup on it.
PN1284
That would appear to be, I think, the eighth coloured photograph with the coloured cup in the foreground. That could be any typical floor on your site?‑‑‑Yeah.
PN1285
Again, the absence of caps on those, it would appear to be the same set of rods in about three of those photographs, the absence of caps is - is your explanation in relation to that the same as you gave earlier; it had been an oversight by - - -?‑‑‑It's a hazard that - yeah, that - those ones are a little bit tricky because you don't have access to them because if you can picture that, when the wall mats are stood up high in the air, they don't pose a hazard when they're up high in the air, but then at a future time when the form - next formwork level comes in, at that point they then become accessible and then the steel fixer has safe access to get to them to put a cap on.
PN1286
In that location then, was there the ability to get safe access to all of those rods in the location which they were?‑‑‑It's impossible to tell from that photo.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1287
The next photograph, number 9, appears to have one person in the background in a fluoro shirt. Do you recognise that person?‑‑‑Not in the - not in the picture that I've been given.
PN1288
Are you looking at the same one?‑‑‑Yes.
PN1289
Could it be you?‑‑‑It looks a bit like - looks a bit like me.
PN1290
But you're not able to say?‑‑‑Well, it's a bit blurred on my photo.
PN1291
Have you - - -?‑‑‑He's got long pants on and I wear long pants every day. There's not many - too many other people that do. It does look like me.
PN1292
There are some fresh prints. Do you recall a situation which you - do you recognize that location?‑‑‑No.
PN1293
There appear to be some fresh boot prints coming out of the water and they're heading in the direction of that person. Do you have any recollection of being involved in the exercise that's seen in that photograph?‑‑‑What exercise?
PN1294
Well, what appears to be, on the face of it, somebody walking through water and then turning left in the direction that's depicted, whoever that is. Is that - - -?‑‑‑I don't have a recollection of that, no.
PN1295
There is some water on the concrete there. Is that an amount of water that would ordinarily be left whilst work is being performed in that location?‑‑‑It's hard to tell if it's one - if it's a couple of millimetres, I don't see there's a - you know, we're talking about rough concrete, so it's hard to see that that's a slip issue. It really depends on the depth of the water. It's not the usual practice for the guys to de-water their work areas.
PN1296
I'm sorry?‑‑‑It's usual practice for the workers to de-water the work area - - -
PN1297
Can you see any other workers working?‑‑‑In the event of a hazard.
PN1298
Can you see anyone working in that location?‑‑‑Not at that time, no.
*** MICHAEL DAVID MCEWAN XN MR HERBERT
PN1299
The next two photographs appear to be pretty much the same, but again there are some reo bars up very close to a formwork wall. Are those bars safely accessible in that photo?‑‑‑At the point in time of the photo, yes.
PN1300
Is there a hazard associated with uncovered bars that are that close to that wall?‑‑‑Well, there - technically, yes, there's - they should have safety caps on them, but - - -
PN1301
Yes?‑‑‑Which is, you know, again required by the - so the next trade that needs to work in that area is, in fact, a steel fixer, so before he lands the steel mats it would be usual practice for him to put the caps on.
PN1302
The steel fixer would put the caps on?‑‑‑Well, in fact, there's - so here's the thing; you put the caps on. That looks to me like - but then when you land the next mat, the next bar has to overlap the bar adjacent so the caps have to be removed in order to land the next level of prefabricated reinforcement. So at the time of this photo, the caps may have been removed in preparation for the landing of the next prefabricated reinforcing mat.
PN1303
Can you tell any - from this photograph can you tell what the state of play is in relation to that?‑‑‑Well, at what time was this taken, who knows, in the sequence.
PN1304
So there is a point in the sequence in which the bars need to look like that?‑‑‑Well, you have to do that to land the next mat, yes.
PN1305
That's the evidence-in-chief for this witness, thank you.
PN1306
MR WHITE: Might I enquire through Your Honour whether Mr McEwan has got actual copies of his statement with him in the witness box?
PN1307
MR HERBERT: Do - - -?‑‑‑I do not.
THE SENIOR DEPUTY PRESIDENT: I don't know
CROSS-EXAMINATION BY MR WHITE [11.52 AM]
PN1309
Mr McEwan, I won't go through entirely in chronological order, but if I might start with the photographs that you have just been taken to - - -?‑‑‑Sure.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1310
- - - whilst you have them and hopefully, that will be convenient?‑‑‑The last set?
PN1311
We'll tell you which sets we go to. Can I ask you to look at the set that has at the front the blue - that's exhibit G - CFMEU 3 I am asking Mr McEwan to look at. Mr McEwan, what I want to suggest to you is this; that on 26 March 2015 you and Mr Kun followed Mr Bland or walked with Mr Bland around the site. Do you remember that?‑‑‑I can remember following up to the live deck, yes.
PN1312
Sometimes you were walking next to him, weren't you?‑‑‑I followed him up to the live deck.
PN1313
Yes, you followed him up and then can I also suggest - - -?‑‑‑Yeah, that's what I'm trying to say. I was walking next to him, yes.
PN1314
And you were talking to him?‑‑‑Yes.
PN1315
You saw him, whilst he was walking, taking photographs, didn't you?‑‑‑I don't recall that, but this is - this is after he had been asked to leave firstly by Mr Kun and secondly by myself.
PN1316
Now, perhaps you could limit yourself to answering my questions rather than provide commentary, if you would be so kind, Mr McEwan. You were with him occasionally standing - walking next to him and you were talking with him and you saw him on 26 March taking photographs, didn't you?‑‑‑I walked with him. If he took photographs, then he took photographs. Whether I was standing beside him at the time, I can't confirm.
PN1317
What I want to suggest to you is that these photographs that Mr Bland took on 26 March 2015. All right?‑‑‑Well, I can't verify that.
PN1318
What I want to suggest to you is that as he took the photographs he pointed out matters about which he had some concern and he pointed those matters out to you and Mr Kun, didn't he?‑‑‑There were matters in respect to an electrocution risk and the scaffold stairs only on that day.
PN1319
He raised a concern in respect of what's shown in this first photograph in that there seemed to be a fall hazard and no mid-rail, didn't he?‑‑‑I have no recollection of that on that particular day, no.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1320
Can I suggest to you when Mr Bland was walking around he had his phone out, didn't he?‑‑‑(No audible response.)
PN1321
Yes?‑‑‑He often has his phone out with a flick leather - yep, it's got a flick bit. He's often talking on it to somebody, yep.
PN1322
Can I suggest to you that he raised a problem with this photograph displaying a trip hazard with no mid-rail which would prevent the fall to the lower level? He raised that concern with you, didn't he?‑‑‑I can't recall that. The two issues were clearly an electrocution risk and access from the scaffold to the live deck.
PN1323
If you turn to the next photograph, that's once again a problem with the absence of a mid-rail with a falling hazard and he raised that concern - - -?‑‑‑Which photo is that one?
PN1324
The next photograph?‑‑‑Could you show that to me?
PN1325
Once again there's a fall or a or a drop and no mid-rail in the scaffold and he - - -?‑‑‑How far is the drop?
PN1326
You can see the drop there, can't you, Mr McEwan?‑‑‑What would you estimate it to be?
PN1327
Mr McEwan, you can see the drop there, can't you?‑‑‑It looks to be less than a metre to me.
PN1328
And what, you don't need mid-rails to stop falls that are less than a metre? Is that your evidence?‑‑‑We all try and eliminate a risk where we can.
PN1329
You can eliminate that risk for that fall by having a mid-rail, couldn't you, or is a metre okay to fall?‑‑‑Well, there was - there was the old rule of 1.8 metres, but certainly no fall is better than 1.8 metres.
PN1330
Yes. Mr Bland raised that as a concern with you as he was walking with you around the site, didn't he?‑‑‑I don't recall that on that day, no.
PN1331
If you look at the next photograph, the one with the red screening on the tarp, do you see that?‑‑‑Yes.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1332
Can I suggest to you on the 26th you discussed with Mr Bland the concept of this which is, can I suggest, described by you as the second form of access from the deck? That's what you told Mr Bland, didn't you?‑‑‑No, we - we were debating that there wasn't actually - a second access wasn't actually a requirement and he kept telling me that it was industry practice. So whilst it - there wasn't a requirement, we were still - we had that in our scopes for the scaffolder to complete that second access, but what you must understand is there is a sequence, and a logical sequence, of events that must take place before that second access can be created. So the precast panels must be installed before the second access there can be built and at the time when Mr Bland was there that's - the precast panels had been landed and then the scaffolder's next task is to complete the second access stairs. So there was no dispute as to whether we were or were not doing it. We were doing it. It was in the scopes. It's a matter of process.
PN1333
So you now recognize that this a matter about which you had discussion with Mr Bland on the 26th?‑‑‑The - the second - the second access off the deck was a subject of that discussion, yes.
PN1334
And it involved this deck here, didn't it? And that precast panel?‑‑‑No. Not at all. That's on the opposite side to where the second access is. The second access, and I've got one of it on my phone, if you'd like me to show you, but that is on the northern side. The second scaffold access is on the southern side of the building.
PN1335
You can recall ‑ ‑ ‑?‑‑‑I remember this one. This one now appears in the CFMEU magazine quoting a second access, implying that we were making workers jump that panel to get to that stair case.
PN1336
And you remember discussing that with Mr Bland, don't you?‑‑‑No. That was the second access on the other side of the building. I distinctly remember, yes.
PN1337
You recognise this is the photograph of the deck as it appeared on 26 March 2015, don't you?‑‑‑Well, that could be any typical deck. That particular one.
PN1338
Turn to the next one. Once again, Mr McEwan, you'll see that there's a drop or a fall beyond the formwork or scaffolding there, isn't there?‑‑‑There's a difference in level.
PN1339
A difference in level, yes. And, once again, no mid-rail?‑‑‑There doesn't necessarily need to be a mid-rail there.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1340
All right. So regardless of how much it's okay for someone to fall, can I suggest to you that Mr Bland raised with you the concern about there being no mid-rail in circumstances where there was a drop and obvious trip hazards nearby?‑‑‑On 26 March?
PN1341
Yes?‑‑‑I have a clear recollection of the stairs being the issue and electrocution, yes.
PN1342
Well, you could also refresh your memory as you've gone along and remember the access way as being another issue?‑‑‑No, that's what I just said, the scaffold access ways and electrocution.
PN1343
Scaffold ‑ ‑ ‑?‑‑‑They were the two clear issues that we talked about.
PN1344
Well, there was another issue about the step, wasn't there?‑‑‑That's what I'm talking about, the scaffold. That's that step.
PN1345
All right. I thought you said that you could also recall talking about the second access or egress off the deck?‑‑‑Second access, scaffold stair. Yes. Yes.
PN1346
All right. Mr Bland raised with you nonetheless, now that you have a look at this photograph and see the absence of the mid-rail and the trip hazards, that it's not really appropriate and it should be made safe, didn't he?‑‑‑I don't recall, but, look, I mean, there's one could argue that the yellow pipe work in front of the panel was a trip hazard as well. Trip hazards are identified in general housekeeping every day on a construction site in the usual course of the week, at the safety meetings, and that's what and All Trades are required to try and clean that up on a daily basis. It's an ever moving target.
PN1347
Yes. Yes, an ever moving target. And it's a matter about which Mr Bland commented to you. This particular circumstance of trip hazards and the absence of a mid-rail?‑‑‑No, he was well, my clear recollection of the events on 26 March were about the scaffold access stairs and how the hell was someone meant to get off the second access stairs. So the debate was: (a) was it required at all; and, (b) it's a matter of process.
PN1348
And you discussed all these things with Mr Bland, do you say, on the 26th?‑‑‑Absolutely.
PN1349
Whilst on site?‑‑‑Yes.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1350
Yes. Because you thought it was important to tell him the question of your process and how things were to be done?‑‑‑Well, he was trying to make out that there was an imminent risk which we didn't see it as an imminent risk.
PN1351
And you wanted to talk to him to satisfy him that there was no imminent risk?‑‑‑No.
PN1352
Is that right?‑‑‑No, I'd asked him to leave.
PN1353
You then talked to him about the question of whether or not there's an imminent risk?‑‑‑After he's refused, what do you want me to do?
PN1354
Well, you talked to him after he refused; that's your evidence?‑‑‑Yes, that happened.
PN1355
Yes. All right. And when you talked to him you told him things that you wanted to establish as far as the company was concerned, and as far as safety was concerned, didn't you?‑‑‑Well, that's a pretty open statement. More information, sorry? About what the company wanted?
PN1356
About your stance on the safety issues which had been raised. That's what you wanted to talk to him about?‑‑‑No, I wanted him he was had workers that were down having a meeting at the time. And after they'd finished smoko we were expecting them to come back to work. That was my expectation.
PN1357
And, see, that's not what I asked you. It's just another comment. I asked you that you were talking to him about what you wanted from, either your point of view, or the company's point of view, to put across in respect of the safety issues that he'd raised?‑‑‑That's a very general statement. I'm not sure what aspect. If you I have no recollection of that. If you ‑ ‑ ‑
PN1358
Well, you recollect talking to him though, don't you?‑‑‑Yes, I do. Yes.
PN1359
And you didn't talk about the footy?‑‑‑We often talk about footy.
PN1360
Did you do that on 26 March as well?‑‑‑I don't know whether I did or I didn't.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1361
All right?‑‑‑I certainly did on what is it Eddies a Bunnies supporter and I'm a Sharks supporter. It's quite commonly a point of discussion.
PN1362
All right. And was it on the 26th?‑‑‑It may or may not have been, mate.
PN1363
May or may not have been. All right. And then you talked to him about the safety issues which he had raised; is that right?‑‑‑Clearly talked about the scaffold access stairs and the electrocution risk which proved to be non-existent.
PN1364
Yes. Well, the stairs, that is, where you put these moveable bits of wood, that's the stairs you're talking about, is it?‑‑‑Yes.
PN1365
Yes. And there's also you talked to him about the egress off the deck, more generally, didn't you?‑‑‑Well, that's the egress path off the deck.
PN1366
All right. Look at the next one, the one with the reo bars. I think we said this looks familiar but can I suggest to you that this is on the top deck?‑‑‑Yes, it looks like any typical floor. I can't tell you which floor.
PN1367
And quite apart from it being the contractor's obligation anyway, whichever floor it's on you recognise, I take it, that it was your site?‑‑‑It does appear so, yes.
PN1368
All right. And whether or not there's an oversight by the steel fixer, the fact of the matter is the builder has the ultimate obligation in respect of safety on the site it manages, doesn't it?‑‑‑Yes. I'm just wondering whether if that photo was taken a little bit further back it might have also shown the exclusion zone around the lift.
PN1369
Well, this is a little bit of speculation on your part now, is it?‑‑‑Well, I'm just wondering why it's so, what we would do is set up an exclusion zone with safety tape ready to land the next layer of mat.
PN1370
All right?‑‑‑Now, what I can tell you is that concrete has been poured and we would normally jump the lift and land the mats.
PN1371
I see?‑‑‑After that concrete was poured.
PN1372
All right?‑‑‑So that may well be quite acceptable.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1373
Yes. Well, if ifs were buts and aunts were uncles you might be right, but your whole answer was ‑ ‑ ‑?‑‑‑Well, if I had a photo from further back.
PN1374
‑ ‑ ‑speculative, wasn't it?‑‑‑Well, it's not. It's a sequence of events, so at what part in the particular sequence was that photo taken?
PN1375
Yes?‑‑‑Is the question.
PN1376
Well, Mr Bland raised that with you as an issue, didn't he, on 26 March?‑‑‑I don't recall that.
PN1377
Yes. Similarly in respect of the next two photographs in respect, once again, the exposed reo bars. He raised that as an issue with you, didn't he?‑‑‑Again, you can the more I look at it the more I think that we are about to land those mats, because you can see the formwork has been put in place to provide the safe access.
PN1378
That's not the question I asked though, was it, Mr McEwan?
PN1379
MR HERBERT: Well, let him answer the question.
PN1380
MR WHITE: Well, he's not answering the question.
PN1381
MR HERBERT: He is.
PN1382
MR WHITE: The question I asked is that Mr Bland raised that with him. That's the question I asked?‑‑‑I don't recall the Startech bars being raised on that particular day. I know we had some heated discussions about access and, you know, that there was not safe access to the deck. That was the nature of the discussions after ‑ ‑ ‑
PN1383
And you were keen to assure him that there was?‑‑‑Safe access?
PN1384
Yes?‑‑‑There was.
PN1385
Yes. That wasn't my question. You were keen to assure him that, as far as you were concerned, there was safe access?‑‑‑Well, I couldn't see any imminent risk, no.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1386
That wasn't my question either. You were keen to assure him that, from your point of view, there was no risk; that's right, isn't it?‑‑‑I wasn't assuring anybody. He was making accusations of unsafe work practices and I was rebutting that.
PN1387
Right. Yes. Now, can I suggest that after Mr Bland was on site on the 26th that he came back on the 27th, and that you and he Mr Kun walked around the site again on the 27th?‑‑‑No.
PN1388
And I want to show you some photographs, and these are the I want to start MFI so there's a second bundle of photographs I think you have. Did you have a bundle of photographs with the first red ‑ ‑ ‑?‑‑‑Yes.
PN1389
All right. Now, what I want to suggest to you is that on the 27th Mr Bland re-attended the site and walked around with you. Can I ask you to look at MFI"E", that's the red one?‑‑‑Yes.
PN1390
Now, can I suggest to you that on the 27th walking around with him he took this photograph and discussed with you the difficulties which he saw arose from it, including the trip hazards? Can you see that?‑‑‑The 27th was a Friday, right?
PN1391
Yes. Yes. So ‑ ‑ ‑?‑‑‑I have no recollection of seeing Eddie on the day after, because we couldn't get concreters to pour on the Friday, so we got couldn't pour concrete on the Thursday, we couldn't get concreters on the Friday, and we ended up pouring on the Saturday, so I may have may or may not have been on the site at all. I spend 50 per cent of my time in Maroochydore.
PN1392
And I suggest that you did on the following day, these photographs which I'm now taking you to were taken, and just bear with me a short time. Can I suggest to you that the first photograph there, MFI"E" is on the lower level of your site; agree with that?‑‑‑These don't have references, so you'll have to show me which one you're referring to.
PN1393
All right. So this one here?‑‑‑Yes.
PN1394
That's the lower level on your site, isn't it?‑‑‑That one?
PN1395
That one there?‑‑‑No, the other one. That one looks like the ground floor to me.
PN1396
Yes. Yes, ground floor of your site?‑‑‑Yes.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1397
Yes. All right. And you'll see that there are obviously places where people walk on that ground floor, even if only to walk to store material; that's right, isn't it?‑‑‑Yes.
PN1398
And where people walked there shouldn't be big holes in the floor for them to trip in, should there?‑‑‑As identified by our safety committee.
PN1399
Yes. And can I suggest to you Mr Bland took a photograph of this on the 27th and talked to you about the unsatisfactory nature of: (a) water; and (b) holes in the floor, where people walked and worked?‑‑‑I have no recollection of being with Mr Bland on the Friday after the Thursday.
PN1400
What I want to suggest to you, and perhaps if we - - -?‑‑‑I can't even verify that I was even on site, I'd have to check my calendar.
PN1401
In those circumstances if I take you to these photographs you'd have no recollection?‑‑‑Of being on site with Eddie on the Friday the 27th?
PN1402
Yes? I will go through them with you quickly. The next one is MFI"F" which is that one. I think you've given evidence about that Mr McEwan. That is the ramp between the car park - this is the car park ramp on your site?‑‑‑that one?
PN1403
Yes?‑‑‑Have you got any queries about that one?
PN1404
I am just asking you to confirm that's the car park ramp on your site?‑‑‑Yes.
PN1405
I think you have identified the hazard there before. The next one MFI"C" is this one. What I want to suggest to you about that one is that it's on a lower level and if it wasn't a walkway it should have had bunting to exclude people from walking through it, shouldn't it?‑‑‑No, what it should have had is covers as per the scope of works for the post-tension contractor which he - was a hazard that was identified and he then cut those mesh panels and placed them over the PT pans until such time that they were filled in.
PN1406
If people were to be excluded there would be bunting around to exclude people from that area, shouldn't there be?‑‑‑There's a difference between a designated access path and an exclusion zone. So we would use green tape for designated access paths and red tape for clear exclusion zones.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1407
This is clearly not an exclusion zone where people are not allowed to go, there's no red tape there is there?‑‑‑Not in the photo there is not but, again, there's a minor trip hazard.
PN1408
Minor trip hazard?‑‑‑Which was identified by the safety committee and safety mesh panels placed over the top of them to avoid that trip hazard.
PN1409
Can I ask you to look at MFI"A", which is the one with the movable bits of wood on that stair? This is a walkway through which people who are loading formwork?‑‑‑No, they're not loading formwork.
PN1410
People carrying tools, people carrying material?‑‑‑Not material, they're generally walking with a tool belt, tools around their tool belt.
PN1411
One of the problems with this was also that there was a very low, so that people were hitting their heads on the top. Do you remember that being discussed with Mr Bland?‑‑‑Depending - what you've got - you've got a building which has floor to floor height of 2.9 metres, and you've got scaffold decks at every two metres. So at some point you'll get a different relationship between the scaffold deck and the floor slab, and that's where this staircase will be created and the head height will be adjusted. I don't remember it on this occasion but I certainly know there was a head height another floor down underneath the live deck.
PN1412
Can I suggest to you that this piece of wood was the repair, or the - if you call it a repair - that you did after Mr Bland had raised this access way as an issue on the 26th, and that as at the 27th this temporary fix was still all that had been done?‑‑‑No, it was an interim measure until I could get - until scaffolders finished their two hour meeting.
PN1413
This was 26/27 March. Now, before 26/27 March - - -
PN1414
MR HERBERT: With respect, I object to the question being framed in that way. The only evidence of 27 March having anything to do with this matter has come from my learned friend from the Bar table. That's the only evidence, and to preface a question on that basis is quite unfair and I object to it being done. There is not a shred of evidence before you that anything in the nature of these photographs happened on the 27th except for this witness saying one of those photographs depicted something that he did on the 26th.
PN1415
THE SENIOR DEPUTY PRESIDENT: The witness is now aware of that issue if he wasn't before. Let's see what the answer to the question is.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1416
MR WHITE: Let's limit it to 26 March, Mr McEwan. You see, Mr Bland had been attending the site regularly before 26 March hadn't he?‑‑‑On occasions.
PN1417
He was there on occasion, it would be, what, once a week, once a fortnight?‑‑‑I remember there was an introductory meeting with Mr Bland and Mr Myles on 17 June 2014. Not much - where we spoke and informed in that we had an early works contract which was going to take us up to around Christmas. I didn't see him much before Christmas but certainly saw him on 18 December - - -
PN1418
18 December did you say?‑‑‑Yes, 2014.
PN1419
Yes?‑‑‑Didn't see him all of January, then saw him on 3 February where I invited him in for a walk.
PN1420
So 18 December 2014 were you there when Mr Bland was there?‑‑‑I was in my site office working away, yes.
PN1421
Did you say hello to him, or did he say hello to you?‑‑‑No, I got a call on the radio from the site manager.
PN1422
That was from Mr Griffin was it?‑‑‑Yes.
PN1423
Mr Griffin said that Mr Bland was either coming on or had come on the site?‑‑‑Was on.
PN1424
Was on, and Mr Griffin asked you what he should do?‑‑‑No.
PN1425
Is that right?‑‑‑No, he called me and said Mr Bland is on the site, you should probably - can you come out here. Which I did.
PN1426
You went out and met Mr Bland and did he raise with you the issues that - any issues that he had?‑‑‑Yes, there was the issue of electrical board and access and egress.
PN1427
Then thereafter Mr Bland and you and Mr Griffin, did you go and look at the problem that had been raised?‑‑‑Yes we did.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1428
You discussed the issue with Mr Bland?‑‑‑Yes.
PN1429
It was resolved to everyone's satisfaction, is that right?‑‑‑There were some recommendations made by Mr Bland.
PN1430
On this occasion on 14 December 2014 - - -?‑‑‑18 December.
PN1431
18 December 2014, you didn't say you can't come on unless you show your right of entry did you?‑‑‑The way it actually evolved was - - -
PN1432
I asked the question, did you say that to Mr Bland?‑‑‑I did in the lunch room, yes.
PN1433
Can I suggest - - -?‑‑‑After he'd called workers off the deck into the lunch room I confronted him and asked him to leave, yes.
PN1434
But until then, having a meeting with members, going on site, you said you - at no time say to him you can't come on site unless you show your right of entry, did you?‑‑‑No, not on that particular day.
PN1435
Not only that you effectively invited him in and then you walk with him - - -?‑‑‑There was no invitation, he was already on the live deck when Mr Griffin called me over the radio, and I then listened to his concerns, at which point he called the entire site off, said, "Righto boys, let's go." I may have called them into the sheds, everyone went off the live deck - - -
PN1436
Now if you - - -?‑‑‑ - - - into the sheds - if you'll allow me to answer the question?
PN1437
Mr McEwan - - -?‑‑‑If you'll allow me to answer the question.
PN1438
You might limit yourself to answering the question.
PN1439
MR HERBERT: With respect, he was answering the question and my friend has interrupted him. I ask if Mr McEwan be allowed to answer - finish his answer.
PN1440
MR WHITE: The answer was entirely discursive well away from the very direct and simple question which I had put to Mr McEwan.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1441
MR HERBERT: I ask that you rule on the matter.
PN1442
MR WHITE: It may arise in re-examination. Mr McEwan, be grateful if you could limit yourself to really asking - answering the questions I ask without adding any discursive story or commentary?‑‑‑You asked whether I'd invited him and I was correcting you on that matter.
PN1443
Do you think that question, Mr McEwan, is capable of a yes or no answer rather than a discursive history of what occurred on that day after he was on the site?‑‑‑I did not - - -
PN1444
I withdraw that question?‑‑‑ - - - I did not invite him on that day, no.
PN1445
The fact of the matter is he was on the site talking with you and talking with Mr Griffin about issues which he had raised with you and at the time that he was discussing those issues with you, you had not said you are not permitted on the site unless you show your right of entry. That's right isn't it?‑‑‑Not until later when - some time later when he called the blokes and stopped them from working, and I did make that clear to him.
PN1446
That is 18 December is it?‑‑‑That's 18 December.
PN1447
The next visit you can recall from Mr Bland?‑‑‑3 February.
PN1448
3 February, and that was the day you invited him on?‑‑‑Correct, yes.
PN1449
So you say this was the second visit of Mr Bland to the site other than the introductory meetings at the beginning?‑‑‑We need to be clear about what is the site and what is the site office and what is the vacant block adjacent the site. There are actually three properties involved.
PN1450
Yes, well I asked you - is it your evidence that this was the second visit of Mr Bland to the site, the building site?‑‑‑To the site being 37B Harbour Road - - -
PN1451
The building site?‑‑‑The site proper, not the site office?
PN1452
Yes, and now I ask you again. To the best of your knowledge was this Mr Bland's second visit to the building site?‑‑‑Yes, that's all I can recall at the moment.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1453
The second visit was at your invitation?‑‑‑Yes, absolutely.
PN1454
That invitation occurred after you'd had a meeting with your management team to say that you were going to invite Eddie down to arrange a better working relationship?‑‑‑There was no meeting with management.
PN1455
You had spoken to Gary White, the construction manager, about inviting Eddie down. Is that right?‑‑‑No, what actually happened was - - -
PN1456
No, if you could please answer my question, Mr McEwan. Had you spoken to Mr Gary White, the construction manager, about inviting Eddie down?‑‑‑No.
PN1457
Could I suggest you had spoken to Mr Cole, Steve Cole, the general manager, about inviting Eddie down?‑‑‑No.
PN1458
Can I suggest to you that in a meeting with Alex Volanti, Matt Forster and Mr Griffin you told those senior officers of the company on site that you were going to invite Eddie down to try and foster a better working relationship. That's right isn't it?‑‑‑No, and I would like to elaborate on that.
PN1459
No - - -?‑‑‑You're talking - - -
PN1460
Could you please answer my question?‑‑‑And we need to talk pre- and post-tense here. What happened, if you will allow me - - -
PN1461
Can you please answer my questions. If Mr Herbert wants to ask any more then he'll be at liberty to do so. And ‑ ‑ ‑?‑‑‑I simply had told management and my staff that I had, past tense, invited Eddie on 3 February for a site walk.
PN1462
And you advised your team that you had done that because you wanted to arrange a better working relationship?‑‑‑Correct.
PN1463
Yes. And you wanted to come to an arrangement where there was a good working relationship between you and Eddie, so that problems could be addressed as they were raised; that's right, isn't it?‑‑‑We had been disrupted on the 18th and twice during January whilst Eddie was on holidays, so, yes, when he returned from holidays I wanted to try and foster a cooperative working relationship with Mr Bland.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1464
And part of that was to invite him on site without requiring a right of entry permit, wasn't it?‑‑‑It was a spontaneous decision when Eddie was, and Mr Bateman, were on the vacant block after they'd been through the adjacent Hutchinson building site called Pinnacle. He was on the vacant block. I got a call again over the radio that Mr Bland was in the vacant block. I then approached him, said, "G'day." After a bit of small talk about the holidays, I chose to invite him down into the basement and ‑ ‑ ‑
PN1465
And didn't require a right of entry, did you?‑‑‑Not on that occasion, no.
PN1466
THE SENIOR DEPUTY PRESIDENT: So, this is all 3 February?‑‑‑That was 3 February. And on that 3 February I also invited him to attend at the next safety committee walk.
PN1467
MR WHITE: Yes. And that was on the building site, wasn't it?‑‑‑Yes.
PN1468
And that was 11 February?‑‑‑Yes.
PN1469
You didn't require production of right of entry by Mr Bland to go on site on that day, did you?‑‑‑No, that was at my invitation.
PN1470
Yes. All right. And then, can I suggest to you, when you look at these minutes of the HSR committee meeting, was Mr Bland invited to the next meeting on 18 February?‑‑‑I can't verify that. I know he was invited I invited him to the next one which was the 11th. That wasn't an ongoing relationship. I don't believe he was there on the 18th.
PN1471
All right. And so I note from the minutes, FWB 6, that you were an apology at that meeting on 11 February 2015; does that record to your recollection?‑‑‑Yes. I don't attend all each and every safety walk.
PN1472
Is it the case nonetheless that you saw Mr Bland on 11 February?‑‑‑No, I didn't. If I was an apology I probably wasn't even on site.
PN1473
All right. And Mr Volanti chaired the meeting. What position did he hold?‑‑‑He was the safety advisor.
PN1474
And he reports to you?‑‑‑Yes.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1475
He's an employee of RCQ?‑‑‑Yes.
PN1476
And did he report to you about the HSR committee meeting?‑‑‑No, I just get a copy of the minutes.
PN1477
Did he report to you about the walk around by the committee, safe walk?‑‑‑I would just be once the minutes would be done I would be I would receive a copy.
PN1478
All right. You see, your desire to have the good relationship with Mr Bland led directly to Mr Bland being on site without producing a right of entry permit, didn't it?‑‑‑On that occasion.
PN1479
Yes. And in your meeting with Alex Volanti, Matt Foster and Mr Griffin, Geoffrey Griffin, you told them that you'd invited him on, or you were going to invite him on without the need for right of entry permit, didn't you?‑‑‑No. Not at all. Which meeting are you referring to?
PN1480
The meeting I said with Alex Volanti, Matt Foster and Geoffrey Griffin?‑‑‑What meeting? What meeting?
PN1481
The meeting which you discussed with them about inviting Eddie onto the site?‑‑‑I suggest to you there wasn't any such meeting.
PN1482
All right. My recollection of your evidence given earlier was that there was a meeting you said there had been a meeting at which you had advised them, in the past tense, that you had invited Mr Bland?‑‑‑Yes.
PN1483
Wasn't that your evidence?‑‑‑I'm I want some clarity on what meeting it is that you're referring to. There was so certainly no meeting where I've told them that I am going to invite Eddie. Okay. From time to time we would have a team meeting. So, Mr Griffin was also looking for some clarification as to whether Eddie required to show his permit to access the site office, which, in my opinion, he did not.
PN1484
I see. All right. Well, you understand this, that on occasions, Mr Bland attended the site, and Mr Griffin would ring you or text you to say that he was either there or coming, didn't he?‑‑‑If I was in Maroochydore, yes, he'd otherwise he would call me on the radio.
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1485
Yes. And you can recall a number of times that Mr Griffin contacted you either by text or phone or radio to tell you that Mr Bland was either on site or coming on to site; that's right, isn't it?‑‑‑I don't recall, other than the dates that we've spoken about, any other times that Eddie was on site.
PN1486
Well, what I'm suggesting to you is that there were occasions when he was. Mr Griffin sought instruction from you as to what he should do, and you either said, "Well, I'll be there shortly", or "What's the issue?", leave it to you?‑‑‑The only times that I'm aware Eddie was on site are the dates we've spoken about; on the site proper, as opposed to the site office.
PN1487
Well, that's before March. I suggested to you what I suggest to you. Now, after 31 March 2015 Mr Bland has attended site again, hasn't he?‑‑‑Yes.
PN1488
Yes. And on those visits after 31 March 2015 he has not been asked for his right of entry permit, has he?‑‑‑Yes.
PN1489
I beg your pardon?‑‑‑Absolutely.
PN1490
I suggest to you that that has not been the case?‑‑‑I can tell you for a fact that on the Thursday, 2 April he did happen.
PN1491
Is that the only time you say it's happened? He's been there since 2 April, hasn't he?‑‑‑Yes.
PN1492
So other than 2 April he's gone there, he's spoken to you, he's spoken to Mr Kun, and Mr Kun hasn't asked him for his right of entry?‑‑‑On the adjacent property, not on the site. That's correct.
PN1493
And you haven't asked him for his right of entry?‑‑‑Why would I when he can go where any member of the public is entitled to go?
PN1494
He's also visited the building site, hasn't he, Mr McEwan?‑‑‑Yes, on 2 April.
PN1495
After 2 April. We're now October. He's been to the building site, hasn't he?‑‑‑He's definitely been to the site office and the adjacent vacant block. Had he been to the site itself?
*** MICHAEL DAVID MCEWAN XXN MR WHITE
PN1496
Yes. That's where his members are working. He's been to the site, hasn't he?‑‑‑Not on 37B Harbour Road, Hamilton.
PN1497
All right. Now, on 2 April you give some evidence about, in your statement or affidavit, Mr McEwan, can I suggest to you that when asking to leave on that day they removed themselves from the site, cooperative with the police, and left the site; is that right?‑‑‑Yes, they left the site.
PN1498
They were cooperative with the police, weren't they?‑‑‑They were cooperative with police. Not so much with me.
All right. All right. Yes, thank you, your Honour.
RE-EXAMINATION BY MR HERBERT [12.42 PM]
PN1500
MR HERBERT: Mr McEwan, you were asked about the visit on 18 December by Mr Bland. Did you receive any notice of entry from Mr Bland for that date?‑‑‑No, we did not.
PN1501
And did he come to the site office and sign the site book or other - and inform you of his presence on the site?‑‑‑No, the first time I was aware he was on he was already on the ground floor deck with Mr Griffin. I got a call over the radio.
PN1502
You were at the site office?‑‑‑I was in the site office next door, yes.
PN1503
Yes. Right. And had you received any kind of prior warning that he was going to be attending the site on that day?‑‑‑No.
PN1504
Had you had any discussion with him prior to that day to the effect that he was not required to observe site protocols in relation to signing the visitors' book and inductions and things of that kind?‑‑‑Absolutely not.
*** MICHAEL DAVID MCEWAN RXN MR HERBERT
PN1505
Now, you were asked some questions about a conversation that you may have had with management about Mr Bland, and I think you started to say that you told the management, after the event, that you had invited Mr Bland. I wonder could you explain to his Honour under what circumstances you had a communication with management about having invited Mr Bland onto the site?‑‑‑Sure. So we had our first little altercation on 18 December where he was on the site and called the workers from the lower deck into the shed. There was as the workmen assembled in the shed I confronted Mr Bland and Mr Myles, at the time, and asked them what they were doing. And they told me that they were having a meeting. I said, "Well, you're not allowed to do that." And there was some debate over whether or not they were entitled to do that within smoko. So because some trades would have smoko at different times, so there was a for the elimination of doubt I said to him, "Well, just so we're clear, I'm disagreeing with you. I'm asking you to leave. And if the guys aren't back to work in 20 minutes" I said, "I'll be back in 20 minutes." Right. And 20 minutes later everyone went back to work, and that was the end of it.
PN1506
You've given evidence about what happened on 3 February?‑‑‑So on 3 February yes, so January comes and goes. We get touched up by Mr Myles and Mr Kevin Griffin during January. So this is - the relationship is certainly on the nose. So I took the proactive approach, when Eddie returned, who was - it was his area, so when he returned back on 3 February I invited him in to say, "Hey, look, yes, let's go for a walk through the basement", which we did.
PN1507
Had you spoken to management about doing that thing before that occurred?‑‑‑No, that was a spontaneous decision that I made on the spot.
PN1508
Yes?‑‑‑We did that, and then subsequent to that because I also invited Eddie into the next safety committee meeting. So it makes sense to me that I've told my guys, "This is what I've done. I've invited him in, and I've also invited him in to the next safety committee meeting." And I've notified management of what I've done.
PN1509
Did that invitation extend beyond that next safety committee meeting?‑‑‑No.
PN1510
I have nothing further. Thank you, your Honour.
PN1511
THE SENIOR DEPUTY PRESIDENT: Good. Thank you.
PN1512
MR WHITE: Sorry, with leave, your Honour?
PN1513
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1514
MR WHITE: I had one question which I had omitted, but I can only do so with leave.
THE SENIOR DEPUTY PRESIDENT: Go ahead.
FURTHER CROSS-EXAMINATION BY MR WHITE [12.47 PM]
*** MICHAEL DAVID MCEWAN FXXN MR WHITE
PN1516
MR WHITE: Thank you. On 3 February 2015 when you invited Mr Bland on to the site, can I suggest to you that neither Mr Bland nor Mr Bateman signed the visitors' book when they went on site, did they?‑‑‑No, because no, they did not, because I was with them escorting them the whole time.
PN1517
Thank you.
PN1518
THE SENIOR DEPUTY PRESIDENT: Nothing?
PN1519
MR HERBERT: Nothing arising. Thank you.
PN1520
THE SENIOR DEPUTY PRESIDENT: Good.
PN1521
MR HERBERT: May Mr McEwan be excused?
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr McEwan. You're excused.
<THE WITNESS WITHDREW [12.48 PM]
PN1523
THE SENIOR DEPUTY PRESIDENT: Is that a convenient time?
PN1524
MR WHITE: Just one minor matter. Can we do that, and my learned friend and I have had a discussion about this. What I proposed, if the Commission pleases, there are a number of sub-contractors on site, as between us, I don't think there's a dispute. What I have here is the front page of the relevant enterprise agreements and one clause of that agreement including the clause relating to meetings with members, and if I could tender those, your Honour. So the first is Mack Steel Fixing Proprietary Limited union collective agreement. The next is DLP Scaffolding Proprietary Limited union collective agreement. The next is Structural Systems (Northern) Proprietary Limited union collective agreement. The next is Action Formwork Queensland Proprietary Limited union collective agreement. The next one is Lindores Constructions Logistics Proprietary Limited. And the last one is what I need now, Handy Hands union collective agreement. So perhaps it might be convenient if they were received as a bundle, your Honour, or whatever other way you think is convenient.
PN1525
THE SENIOR DEPUTY PRESIDENT: Do you have any objection at all?
*** MICHAEL DAVID MCEWAN FXXN MR WHITE
PN1526
MR HERBERT: No, your Honour.
THE SENIOR DEPUTY PRESIDENT: I think we're up to CFMEU4. Yes, that's right. Yes, CFMEU4, as a bundle.
EXHIBIT #CFMEU4 BUNDLE OF SUB-CONTRACTOR COLLECTIVE AGREEMENTS
PN1528
MR WHITE: Thank you.
PN1529
THE SENIOR DEPUTY PRESIDENT: How long would you like for I'll leave it to yourselves. Would you like a full hour?
PN1530
MR WHITE: A full hour would be very good.
PN1531
THE SENIOR DEPUTY PRESIDENT: Well, what about we return 2 pm.
PN1532
MR WHITE: Thanks, your Honour.
PN1533
THE SENIOR DEPUTY PRESIDENT: All right, we are adjourned. Thanks very much.
LUNCHEON ADJOURNMENT [12.50 PM]
RESUMED [2.01 PM]
PN1534
THE SENIOR DEPUTY PRESIDENT: Thanks, every one. Closing submissions.
PN1535
MR WHITE: Your Honour's had the written submissions of the parties. So to that extent, I will endeavour, as much as possible, not to be repetitive of that which is written, unless your Honour would be assisted me going through the- - -
PN1536
THE SENIOR DEPUTY PRESIDENT: No. As I indicated yesterday, I've read all the material, so to the extent you want to supplement it or emphasise some particular point you consider of significance, please do so.
PN1537
MR WHITE: Yes. Well, as indicated yesterday, your Honour, the relevant applications have been put in. The relevant declarations in each of the two matters in each matter by Messrs Ravba(?)and Bland respectively and we rely on those declarations in each of the two matters.
PN1538
In some senses, matters have become a little more confined as the proceedings have gone on and so I just want to, if I may, emphasise a couple of issues and then go to the material briefly. First of all, the nature of the application is for a permit for Mr Bland. The permit is not for the CFMEU or the transition to be registered, the CFMEU in Queensland, but it is for Mr Bland. It is the case that in assessing the application, the Commission must take into account those matter set out in section 513 which, we say, including section 513(1)(g), are matters which are relevant to the personal characteristics of Mr Bland and are not relevant to the organisation or organisations of which he is a member or employee.
PN1539
In our outline, under the heading "Personal observations" we set out why it is we say that and in my submission, that's been repeated on a number of occasions. The most recent occasion in which this has been considered is the Full Bench Commission, Director of Fair Work Building Industry Inspectorate v CFMEU [2015] FWC FB6035. And in the bundle of documents, I think in the applicant's list it is this is the appeal in respect of Mr Ravba. I've got a copy of that for you. If the Commission please.
PN1540
Now, this relatively recent decision of the Full Bench, it was on an appeal by the Director against the decision of Lawrence DP granting Mr Ravba a permit. In some senses, this is a handy decision because by paragraph 6, the Full Bench sets out with approval an earlier decision or an extract from an earlier decision Hatcher VP, which it properly sets out the tests.
PN1541
And you will see from that extract, from the decision of Hatcher VP, commencing in paragraph 6 of the Full Bench decision that:
PN1542
The fit and proper standard generally speaking, involves assessing the relevant personal characteristics of the individual concerned.
PN1543
That's point one.
PN1544
In relation to the activities for which satisfaction of the standard is required.
PN1545
Now, in similar mode, the next dot point:
PN1546
The expression of 'fit and proper person' in section 512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.
PN1547
The point is emphasised somewhat differently in the third dot point and that is:
PN1548
The Full Bench approves Hatcher VP's observations that the question of fitness and propriety are not to be determined per se, but rather whether an official of the applicant organisation or an applicant organisation is a fit and proper person to hold the permit that's been applied for by the organisation.
PN1549
It flows therefore, in the fourth dot point that:
PN1550
The consideration of fitness or propriety looks at the consideration of the rights of the holder of the permit and the limitations of the rights but we emphasise, and I don't want to be too repetitive about this, that the focus of the Commission at all time is that of the permit holder or the person in respect of whom an application is made. It is not an exercise of judgment of the applicant. That is, in this case, the CFMEU or the CFMEUQ.
PN1551
To that extent, your Honour, the submissions of the Director commencing in paragraph 32 and following, where submissions are made about the history of contravening by the CFMEU, we say are matters which are not to be taken into account. We say it's contrary to Full Bench authority. They had to be taken into account, only if relevant, in respect of the individual for whom a permit is sought.
PN1552
The corollary of the fitness and propriety of considering it in respect of the person for whom the permit is sought is that the other consideration is to judge the fitness and propriety for the purpose for which the permit or licence is sought. It is not, we say, an exercise of general moral judgment of the person for whom a permit is sought, rather, we say, it is a more confined consideration and it is confined by the purpose, that is, to exercise those rights which are set out in the Fair Work Act.
PN1553
To the extent that there are other decisions of the Commission to the effect that the history of the contravention of the applicant is a relevant matter, then with due respect, we say those decisions are wrong. There is one decision, and that's a decision of Watson VP in CFMEU [2015] FWC 4544. It is in the and it's number 4 in the bundle we handed to you, your Honour. This was a decision of 20 July 2015, paragraph 27 and following, his Honour deals with the question of a pattern of CFMEU behaviour and deals with that through to paragraph 31.
PN1554
In paragraph 30 31, his Honour states his conclusion. I pause but don't read it out loud, your Honour. But in our submission, having regard to not only the decision of Hatcher VP but also the Full Bench decision in respect of Mr Ravba's permit, those observations of Watson VP cannot and do not stand. The Full Bench, as your Honour would have noted, is a decision more recent than Watson VP's decision.
PN1555
I then come to the question of the matters which you must take into account under section 513. There is, as we apprehend, the Director's submissions. No separate part of those submissions which make the assertion that the training received by Mr Bland has been inadequate. There is, you will see from the declaration, no prior conviction for an offence against an industrial law. There is, as you will see once again from the declarations and not putting contention by the Director, no conviction against the law of the Commonwealth or State or Territory or a Foreign country involving entry onto premises, fraud or dishonesty, intentional use of violence or the like.
PN1556
In respect of 513(1)(d), the question you must consider is whether the official, Mr Bland, or any other person including an organisation, has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official. In this matter, there are two matters on which the Director relies in respect of the union, the applicant, or one of the applicants, having to pay a fine arising out of Mr Bland's conduct. Those are set out in paragraphs 41 and following of the Director's submissions.
PN1557
The first of those matters is what's called the Watpac matter. The observation we make in relation to the Watpac matter is that the conduct therein occurred almost exactly 5 years ago. The conduct occurred on 9 November 2010. In relation to the Lango v Walk(?) matter, the second matter, it is not almost well, it nearly still 5 years ago, the conduct alleged in respect of which a fine or a penalty was imposed, occurred on 19 November 2010. Effectively, your Honour, for all intents and purposes, the conduct occurred five years ago.
PN1558
We say, in those circumstances, given the length of time, there would be, in my submission, cause for little weight to be put on to either of those matters. Particularly that is so because in these proceedings, as we apprehend the Director's submissions, there is no allegation of a breach by Mr Bland of an industrial law. I'll come to that in more detail a little later but in circumstances where past conduct of such vintage, 5 years ago, has occurred where no allegation is made or pursued that there is a breach of an industrial law, we say little weight should be given.
PN1559
The next matter under section 513, section 513(1)(e), is whether a permit issue to the permit holder under this part or a similar part has been revoked or suspended or made subject to conditions, is not applicable in this case. In relation to section 512(1)(f), it's not applicable in this case.
PN1560
The way the Director opposes the issue of a permit to Mr Bland is under the general rubric of section 513(1)(g), quite apart from the two matters, the Lango v Walk matter and the Watpack matter, about which I've made submissions. And the way that the Director does that is in a number of parts. First, the Director contends, in paragraph 75 to 95 of his submissions, that there were deficient declarations in respect of a number of matters.
PN1561
We make the observations, as we do in paragraph 15 and following of our submissions in respect of those matters sorry, the general approach, and from paragraph 23 onwards, we deal with the omission of the matter of Director of Fair Work Building Inspectorate v CFMEU and CEPU QUD257 [2013]. If was, of course, omitted and we do however, invite the Commission, and indeed request the Commission, to accept that that was a matter of oversight. QUD257 [2013] is one of the most, or more notorious cases. It is a matter which has gone to the High Court, awaiting a decision in the High Court. It is not a matter which one can easily sweep under the carpet and hide, and for reasons in our written outline and given the notoriety of the case, we would ask your Honour to accept that the omission was an innocent error or oversight.
PN1562
The question then is really, what is the proper approach to the question of disclosure? The Director relies on a decision of Watson VP in CFMEU [2015] FWC 3057. But your Honour, with respect to Watson VP, we say he is wrong. The reason we say he is wrong is the decision of Gostencnik DP in [2015] FWC 4450, CEPU Qld Division a decision of 20 July 2015. Your Honour, that is number 2 in the bundle of documents we provided to you.
PN1563
And this is a case which you've been taken to in the debate in respect of admissibility of evidence. Paragraphs 27 and 28 of that decision, we say, are correct statement of the law. As we said in our submission, in the objection debate, we of course concede that the question in this case arose in different circumstances from the question in this case. But the clear words, in paragraph 27 and 28 of Gostencnik DP, in our submission, the Commission should find a correct and proper view. Those words are as follows:
PN1564
It would, in my view, be most unsound to take into account allegations of conduct concerning that which were contested and that which were ultimately not the subject of any finding of fact or conclusion of law.
PN1565
And just stopping there and I'll come back to this in more detail, in QUD 257, we say there is, at this stage, no finding of fact or conclusion of law. I'll come back as to why we assert that. And in paragraph 28, his Honour says:
PN1566
In those circumstances, I can see no basis for concluding that a disclosure was required whilst there has not been an absence of candour or due diligence.
PN1567
Now, can I expand a little on why we say that there has been, at this stage, no finding of fact or conclusion of law? The Director asserts, correctly, that in respect of QUD 257, there was prepared a statement of Agreed Facts, and the Director attaches, as appendix D to his submissions, that statement of Agreed Facts. And what we say in respect of that, is this. Paragraph 3 of that statement of Agreed Facts provides that that statement is made pursuant to section 191 of the evidence act. It is made for a particular purpose, not for any other purpose. If and when the court, either relying on the statement of Agreed Facts or for other reasons, makes findings and records those findings in a judgment, then we say, and only then, is there a finding of fact or conclusion of law.
PN1568
We set out an extract in paragraph 28 of our outline about the nature of section 191. QUD 257, your Honour, has a way to go before conclusion. Just by way of background, there was a statement of Agreed Facts for the purposes of that matter which was initially heard by a single judge but then referred to a Full Court. And then a question was heard and determined, that is, whether or not submissions could be made as to agreed penalty. The Full Court ruled on that, special leave was granted. The Director is a party to this and supported the CFMEU position in this case and it has recently, I think last week, maybe the week before, been heard by the High Court and judgment await.
PN1569
THE SENIOR DEPUTY PRESIDENT: The 13th?
PN1570
MR WHITE: Heard on the 13th of this month. So it's a way to go yet and in circumstances where the statement of Agreed Facts was made under section 191, it was not, we say, available either for the Director or for the Commission to rely on it in any broader sense.
PN1571
Now, in part, the Director in part, seems to accept that as a proposition because one reading of the submissions seems to suggest that the Director relies only on QUD 257 in respect of non-disclosure. But when one looks at paragraphs 81 and 82 of the Director's submissions, there is a suggestion in those paragraphs that conduct, as set out in the agreed statement of facts, are matters to be taken into account by the Commission. And we say that is, for the reasons we've indicated, not appropriate.
PN1572
In relation to the other non-disclosure matter, that is, an alleged inadequacy of disclosure I'm sorry. Just before I move from QUD 257, in this regard, can I emphasise once again, paragraphs 27 and 28 of Gostencnik DP's decision, to which I've taken the Commission already.
PN1573
The Director, in his submissions, paragraphs 86 and following, once again, relying on a decision of Watson VP, submissions about which I've just made, assert that there was inadequate disclosure of proceedings on foot. First of all, we predicate this part by going back to Gostencnik DP in paragraphs 27 and 28. Secondly, we say, in relation to these matters as follows:
PN1574
(1) - in Blackwood v Bland, the first matter that the Director deals with and in part deals with commencing paragraph 87 of his submission, can I advise the Commission that that matter will be discontinued next week. When I say that, I say that on the basis of an email from the solicitor for the applicant, indicating that documents to give effect to a discontinuance will be prepared early next week and then steps can be taken.
PN1575
In respect of the Ingham matter, there is little before you, save to say that that is a matter at a very early stage in the Federal Court. The Director or Fair Work Building Commission is a party and we say (a) that's far too early for any conclusions to be drawn, even if one was not to accept Gostencnik DP's approach as appropriate.
PN1576
Thereafter, the Director then relies on what he calls, in paragraph 96 and following of his submissions, further matters. And there are a number of further matters that are relied on. There are matters which arose at the proximity site in respect of Mr McEwan and Mr Kun have given evidence and matters which arose at a Lend Lease site in respect of which a Mr Bell gave evidence. Mr Bell's evidence, we say, should be approached with a great deal of caution.
PN1577
The affidavit of Mr Bell, in some senses, has similar defects to the affidavits of the other witnesses. But you will recall, if the Commission please, that this was the third set of notes or stories that was prepared, ostensibly by Mr Bell. Mr Bell said that he made notes contemporaneously with the events about which he gives evidence and secondly, he says that earlier than this affidavit, he prepared another set of notes. The Commission is not provided with the best evidence in this matter. The Commission is provided with a document which could have been supported by contemporaneous notes but which the Director or Mr Bell chose not to advise the Commission of.
PN1578
It is, of course, the applicant who has to make good the application but your Honour, in my submission, where a party is seeking to propound a particular fact, putting aside questions of legal onus, the party propounding the fact, at the least, bears an evidential or persuasive onus. And in determining whether or not the Director has satisfied that evidential persuasive onus, we would ask the Commission to approach Mr Bell's evidence with a great deal of scepticism.
PN1579
One of the other aspects of Mr Bell's evidence is this, and to some extent, it also reflects something which has occurred at the Proximity site. That is, even though it was alleged, or it is alleged that Mr Bland was on site but had been asked to produce a permit and had not done so and ostensibly had been asked to leave, nonetheless, at least in respect of 25 June 2014, Mr Bell quite openly, engages with Mr Bland in conversation about a matter of contention.
PN1580
Your Honour will recall the evidence that Mr Bell gave about Siganto, a contractor that went broke on the Lend Lease site. Mr Bell gave evidence that whilst they were not walking, he freely discussed Mr Bland the question of Siganto and the question of Siganto's employees. There seems to be a running with the foxes and hunting to the hounds to a certain extent. But that is, complaint is made but at the same time, the voluntary participation in the conversation in respect of proper industrial matters is engaged.
PN1581
The second lot of further matters which are alleged, in respect to the Proximity site - I said in respect of Lend Lease site there seems to be a little bit of running with the foxes and hunting with the hounds. There are certainly, in respect of the Proximity site, definite mixed messages. We would ask that the Commission should accept Mr Griffin's evidence, that the dealings he had with Mr Bland were cooperative, constructive and at least, on one occasion in respect of the dismantling of the crane at the Hutchinson's site, of great benefit to RCQ.
PN1582
We would ask your Honour to reject absolutely, any submission, if one was to be made, that the Commission should not accept Mr Griffin because he had a private axe to grind by dealing with defamatory material coming from Mr McEwan. It would be, we say, inconceivable that a person would come and perjure themselves for the sake of a personal grudge, and if that submission was to be put, we would say that the Commission ought properly reject it out of hand.
PN1583
And so, we've got Mr Griffin saying that there was a cooperative approach, that more often than not, Mr Bland would ring him. That they would meet, that Mr Griffin would ask what the issue was and Mr Bland would tell him. It wasn't a, we say, and no suggestion can be made that these visits were anything other than for an appropriate and proper purpose. And after the issue had been raised, it was those issues were dealt with cooperatively.
PN1584
Mr McEwan says, "Well yes, we did, on 18 December, at the beginning of the job, invite Mr Bland on to site". Then there comes the Christmas break and Mr McEwan, once again, on 3 February, invites Mr Bland onto the site. He invites Mr Bland to attend the Work Health and Safety Committee and do a safety walk on the site. Now, we would ask the Commission to find that the purposes for Mr Bland's visits were legitimate, if not by invitation, and largely cooperative.
PN1585
Complaint has been made that at some time, either in December and certainly in March, that there were meetings held. And you will recall Mr McEwan's evidence this morning, that he thought, or he was of the view that these meetings were unlawful and not appropriate and he asked for them to stop. Now, it's unclear I made the earlier submission that, as we apprehended the Director's submissions, that they were relying on breach of the industrial law. In his submissions, paragraph 100, possibly seems to suggest that there is some reliance on breach of the industrial laws, but the Commission should find that there is no basis for any allegation, if it was to be made.
PN1586
Your Honour, CFMEU4, were extracts from a number of enterprise agreements. Those enterprise agreements were made with the union, CFMEU, and a number of subcontractors who were working on the Proximity site. There are two types of clauses in those. One clause can be found in the Handy Hands agreement, under clause 33.9 and I'll read that:
PN1587
Employees are entitled to have paid time off to attend union meetings of up to 2 hours (or more by agreement) or participate in union activities. The frequency of meetings should not be unreasonable. The reasonableness of the frequency of these meetings should be determined by considerations of factors including the significance and relevance of the subject matter of the meetings.
PN1588
The other clause, in shorter form, can be found in Lindores:
PN1589
Employees are entitled to have paid time off to attend union meetings of up to 2 hours or more by agreement or participate in union activities.
PN1590
In my submission, there is no evidence to suggest that the meetings which occurred at the Proximity site were other than meetings which were permitted by the respective enterprise agreements.
PN1591
There was, on 26 March, I think, or another date, a stoppage of work, but in my submission, there is no evidence to suggest that Mr Bland in any way induced, encouraged or aided, abetted or conspired to bring about that stoppage of work.
PN1592
Now, further in relation to the Proximity site, once again, looking at the mixed messages which are being sent, there are a number of dates where conduct is alleged. One of those dates start with 26 March 2015 whilst Mr Kun gives evidence in examination-in-chief that he had asked Mr Bland to leave certainly it didn't appear in his notes and it certainly didn't appear in the site diary, copies of which were attached to his statement.
PN1593
In respect of 31 March 2015, neither so Mr McEwan was not there, Mr Kun was there on 31 March. He doesn't say anything in his statement about asking Mr Bland to leave. There is nothing in his notes nor is there anything in the site diary in respect of asking Mr Bland to leave. Whilst Mr McEwan was not there, he attaches to his statement a record of notes he made of a telephone call with Mr Kun and similarly, there is nothing in those notes that suggest that Mr Bland was asked to leave on 31 March 2015.
PN1594
On 1 April 2015, Mr Kun was not at the site. This was an inclement weather day. Mr Bland attended and there is nothing by way of allegation by Mr McEwan that he was either asked for right of entry or asked to leave on 1 April 2015. Now, on 26 March and 2 April, there is some evidence to suggest that he was asked for his right of entry permit and evidence to suggest Mr Commissioner was to find that he was asked to leave the site.
PN1595
In my submission, the Commission ought find that he did leave the site, if not immediately, he did leave the site. What other mixed messages were there? We say that whilst he was on the site, he was accompanied by Mr Kun and Mr McEwan, and in my submission, the Commission ought find that discussions took place in relation to a number of safety issues. Mr McEwan would have it limited to access or egress and the electrical board but nonetheless, that is sufficient, we say, for the Commission to find that even though complaint was made about Mr Bland being on site, the employer nonetheless continued to engage with him in respect of at least some matters, limited even if by Mr McEwan's evidence.
PN1596
Now, we say this further. We have indicated or submitted that the Commission ought find that there were proper and valid reasons for Mr bland to attend the site. As we apprehend, there is no real argument that that was the case. But your Honour, we would ask, when you come to consider the basis upon which Mr Bland came to the site, that there were legitimate issues. When he met Mr Griffin, he raised the specific issues. Even Mr McEwan and Mr Kun says that he raised issues with them. Now, whether or not they agreed with them is not to the point. There were issues which were raised and which were discussed.
PN1597
Your Honour is able to take into account, in my submission, the photographs. Your Honour is not required, nor do we request that you make findings as to whether or not these photographs show actual hazards, save to the extent that admissions as that effect have been made, and we remind the Commission that this morning, Mr McEwan made a number of admissions to that effect. Rather, we ask the Commission to, at least from these photographs, find that there were at least issues which, on their face on their face, raise legitimate concerns. And the Commission is able to do that without arriving to a decision at finality of the seriousness of the breach or whether they were breaches or anything of that type.
PN1598
The mixed messages continue, to a certain extent. It is put by Mr McEwan and Mr Kun that it is a significant safety issue on site that visitors on the site sign the safety book. We know that on 3 February Mr Bland was a visitor on the site and he wasn't required to sign the site visitor's book. Mr McEwan says, "Well yes, that's because I was with him and I invited him, or because I was with him". But your Honour is able to find that, on all occasions Mr Bland was on site, he was accompanied either by Mr Griffin, Mr Kun or Mr McEwan or a combination of the three.
PN1599
Now, your Honour, we don't shy away from the fact that there is evidence the Commission could rely on to suggest that Mr Bland didn't show his right of entry and on occasions, at least two occasions at the Proximity site, didn't leave immediately when asked to do so. We can't walk away from that. But we'd ask the Commission to put that in the context of other evidence in this case, and that context is, as I have submitted, the fact that Mr Griffin and Mr Bland had a cooperative working relationship. That regardless of the type of meeting that Mr McEwan had, we understand that on 3 March, Mr Bland was invited. That purpose was for a proper working, a more cooperative working relationship. He was invited again to the site Safety Committee meeting.
PN1600
And we would also ask your Honour to find that after 31 April and sorry, 31 March 2015 and probably after 2 April 2015, Mr Bland has visited the site. Whilst Mr McEwan said this was not so or was unable to recall, Mr Kun gave evidence that Mr Bland had visited the site after that time and that, when he had visited the site, Mr Kun did not ask him for the production of his right of entry permit. He did not ask him not to enter and did not ask him to leave.
PN1601
So your Honour, whilst we say we can't run away from a number of findings which are open, they should be contextualised into pre and post relationship and a relationship, we say, has in large part been cooperative, certainly at the Proximity site.
PN1602
One other interesting matter which arises from the Proximity site is this. Your Honour will recall that accompanying Mr Bland at the Proximity site, was Mr Bateman from the ETU. And your Honour will have also noted, in respect of the Gostencnik DP decision to which we have taken you, that that was in respect of, in part, a Mr Bateman. Now, reading the decision of Gostencnik DP, it appears that the Director chose not to rely on Mr Bateman at the Proximity site, or any alleged conduct of Mr Bateman in opposing Mr Bateman's permit.
PN1603
Now, the Director is, of course, able to determine for himself what evidence he chooses to bring in any particular application, but what the consequence of that is, is that it has in some senses, created a situation of potential inconsistency in Commission's decisions.
PN1604
Now, can I turn now to the Director's submissions in respect of the character alleged, of Mr Bland? One of the extraordinary submissions made by the Director is contained in paragraph 104 of the Director's submissions, in these terms:
PN1605
To grant a permit to a person who has proven to have acted in this way is to operate a tangible gesture of approval by the Commission of such conduct.
PN1606
Now, in my submission, that is palpably a derisory submission. And if the Commission was to have any regard to that, it would direct attention away from the Commission's true and proper role, and that is to look at the fitness and propriety of Mr Bland for the holding of a permit.
PN1607
The Director, in paragraph 105, submits that the evidence led by him establishes that Mr bland has no regard for industrial law. Can I make this submission? Other than two matters 5 years ago, there's no breach of industrial laws alleged.
PN1608
In paragraph 103, the Commission alleges that:
PN1609
The conduct of Mr Bland shows an open contempt for the legislative scheme.
PN1610
These sorts of generalised statements, we say, are unhelpful. Rather, the Commission needs to look at the actual conduct and look at make some assessment of prospective or future conduct, based on past conduct.
PN1611
The open contempt for the legislative scheme seems to be put oddly by the Director. It appears that the legislative scheme of which he talks is the right of entry scheme. It is perhaps a little illogical to assert that persons not participating in a voluntary scheme are somehow showing open contempt for that scheme. In my submission, the Commission should find that Mr Bland is fit and proper and the allegations which the Commission might find are made good, we say, should be properly contextualised.
PN1612
There is of course then, a subsequent matter. The Commission, in determining whether a person is fit and proper, can take into account in making that determination, the imposition of conditions. It is not now the case that conditions are only imposed once a finding of fitness and propriety is found. If your Honour was to say that conditions, the imposition of conditions would result in you making a finding that Mr Bland was fit and proper, then to that extent, in paragraph 39 of our outline, your Honour, we have perhaps asked to be heard further in respect to any particular conditions the Commission might have in mind.
PN1613
Those are the submissions, unless your Honour would be assisted by - - -
PN1614
THE SENIOR DEPUTY PRESIDENT: No, thank you, Mr White. Mr Herbert?
PN1615
MR HERBERT: As your Honour will see, and my friend's referred to them at length, we've put on very comprehensive submissions, and again, I will endeavour not to speak across them or repeat them, but rather speak to them.
PN1616
Could I hand up, your Honour, because I don't think I did it earlier and I referred to it and didn't hand it up, copies of Division 2 and Division 3 of the Queensland Work Health and Safety Act 2011 which contained the Notice of Entry provisions in relation to persons exercising State or Territory OH&S functions. The right of entry provisions in those sections are those that were in force at the relevant time. They remain in force, although there is a Bill that's just recently passed Parliament altering that position.
PN1617
And the relevant notice provision in that legislation is consistent with that in the Fair Work Act, and that's minimum of 24 hours, not exceeding 14 days. And the provisions of section 119, section 120 and section 122 respectively, there do not appear to be penalty provisions perse, but there is a sanction that can be applied under that Act for failure to comply with the provisions of the Act and otherwise abusing right of entry provisions.
PN1618
I mention that because it's absolutely clear that in whichever direction one looks in relation to the matters of evidence that were called in these proceedings, Mr Bland was bound, were he exercising any of the powers under the right of entry scheme under the Federal Act or under the State Act, that he was bound by the same time limitations in relation to the provision of notice and the provision of authority documents and things of that kind. They are relatively, almost identical provisions in the Federal and State Act in that regard. Obviously the State Act is only concerned with OH&S entry, but the obligations are the same.
PN1619
And we say that because we have no evidence, and this affects much of what I say we have no evidence from Mr Bland as to the authority that he was purporting to exercise on the occasions in question, so we don't know the Commission can infer that because, on each occasion there was a speaking of the words "Safety", "I'm here for safety, it's all about safety", that there remains a reasonable suspicion that what he was purporting to do was exercise some right of entry. He was certainly asserting to have a right to enter and he did enter on the occasions that are dealt with in the evidence in these proceedings. But the only possible source of that right, if he had a right, would be either the Fair Work Act or the Queensland State Act and both of them were contravened in entering the way he did, for the reasons that I'll come to shortly.
PN1620
Your Honour, in my submission the starting point of consideration of the matter is the timeline which we have included as an annexure to the submissions. It's appendix C to the written submissions and that sets out conveniently a timeline of Mr Bland's relevant milestones in his career; and one sees although my friend relied upon the fact that the conduct which gave rise to the BCEC matter and the QMIR matter occurred in late 2010, it does appear that the contravening conduct - and I refer to the third entry at the top line of that chronology - the contravening conduct in the John Holland proceedings, that's the QUD proceedings, occurred in November 2013 which was less than two years ago.
PN1621
I'm sorry, the contravening conduct is the second one on the left. I do apologise, and that occurred in May 2011 which was a significant period after the earlier conduct and that is the subject of the admissions in the matter, in the QUD matter. I apologise for that, your Honour. That's two years earlier than that. But that being so, then the conduct about which evidence has been given in these proceedings by Mr Bell occurred in June 2014. Now that is eight months after Burnett J delivered judgment in the Laing O'Rourke proceedings and is almost a year after Collier J delivered her judgment in the Watpac proceedings.
PN1622
One would have thought that those judgments if nothing else may have had a galvanising effect on the conduct of Mr Bland, and the Proximity project conduct of course occurred in March and April of this year but six months ago. There is a startling similarity between those matters. there is a very clear and consistent thread in relation to the conduct, not so much the actual instances of the laws which were contravened in the course of those events but in the propensity on the part of Mr Bland to contravene laws as and when he saw fit, as and when it suited him, or as and when he was directed to do so, or as the case may be.
PN1623
But the consistent thread throughout was a considerable and pronounced unwillingness to comply with industrial laws as they applied to him, and that has gone from 2010 until 2015 despite the judgments of Courts and other events. Can I deal with the question of the QUD decision, as we've called it. My learned friend says that firstly it should have been disclosed, it wasn't disclosed in the proceedings, and that could be taken to be an innocent omission. You would require some evidence about that. You would require something far more than a reassurance from my learned friend that it was all innocent.
PN1624
There is no affidavit or statutory declaration of Mr Bland saying "Gosh, I forgot about such a weighty and important matter" or "I didn't notice it" or something. But my friend says it's so notorious that you can assume that its omission was innocent. Well, if it's innocent it was extraordinarily sloppy and it shows a scant regard for the responsibilities to make known all relevant matters that go to the character of Mr Bland. That's the first thing. The other thing is the admissions that were made in those proceedings, and we've referred to them in our submissions and we commend those without going to them, that your Honour read the admissions the CFMEU has made about Mr Bland.
PN1625
But that in the course of the judgment upon which my friend relies heavily of Gostencnik DP in the CEPU matter dealing with Bateman and Ong, and that's in the book of authorities that has been produced in this matter. I think I'm looking at tab 9 of the book that has been provided by my client. But in that decision that same statement of agreed facts, although it has not been the subject of a judgment yet of a Court because of the delays that have occurred because of the litigation of the Barbaro principle, but in that matter the CEPU made admissions in relation to the conduct of Mr Bateman and Mr Ong and the CFMEU made admissions about the conduct of Mr Bland.
PN1626
A submission was made in those proceedings that the Commission could not in proceedings of this kind have regard to those admissions because they are not admissions for the purposes of anything other than those proceedings; and at paragraph 18 to 20 of that judgment Gostencnik DP dealt with that issue and dismissed that argument in relation to precisely the same admissions, and midway through - leaving aside the first part of paragraph 18 I commend all of it to your Honour, but the relevant passage commences in the middle of paragraph 18 with the sentence:
PN1627
Although Mr Bateman claimed he did not admit the conduct for the purposes of the proceeding there is no material before me from Mr Bateman denying that he engaged in the conduct as set out in the statement of agreed facts, nor did he allege that the conduct described in the statement of agreed facts or the legal conclusions reached in those facts are not accurate.
PN1628
Now they were concessions made by the CEPU in precisely the same proceedings. That is a correct principle to act upon, in my submission, that the statement of agreed facts demonstrates that the CFMEU has made admissions about the conduct and the legal consequences of the conduct of Mr Bland, and that that conduct occurred in 2011 following the fact of the conduct of 2010 to which proceedings were commenced; and Gostencnik DP then says in the middle of paragraph 20:
PN1629
I do not accept the admissions contained in the statement of agreed facts are not relevant to my consideration and I do not accept the admission should be given limited weight. Mr Bateman was free to attend before me to give an explanation of the circumstances of his involvement in the conduct set out in the agreed statement of facts. He is free to explain or qualify any fact that had been omitted by the CEPU. He did not do so nor did the CEPU submit that the conduct it agreed Mr Bateman engaged in did not accurately reflect Mr Bateman's conduct. That Mr Bateman by his conduct whilst on the QMIR project site as set out in the agreed statement of facts breached a prohibition in an industrial law is an important factor in assessing the fitness or propriety of Mr Bateman to hold an entry permit.
PN1630
In relation to Mr Ong precisely the same argument was put and dismissed. Those passages are in paragraphs 43 and 44 in relation to Mr Ong. So my friend has selectively relied upon particular parts of that judgment of Gostencnik DP. In my submission those passages are certainly a correct assessment of the weight that one should place upon a statement of agreed facts made by a union and an applicant in proceedings of this kind, in respect of an organiser for whom it advocates a permit should be issued.
PN1631
We put in the written submissions much of what we have to say about the test in relation to these matters, and that is the question of the general integrity and the general integrity can, as the Full Court of the Federal Court held in the MUA case, be assessed by reference to a person's general willingness to comply with industrial laws. What we say is that given the chronology that's in the submissions and given the number of occasions in which there have been contraventions found against Mr Bland by the judgment of Collier J, the judgment of Burnett J and the admissions made in the QUD matter which is stalled in the Court process, that Mr Bland has a long and consistent history of refusing and failing to obey industrial laws, and given his experience over a long period of time one would have thought that he would be in a position to know very much better than that.
PN1632
Which raises the question as to whether he is in fact conducting himself in a way which is deliberate and studied, as distinct from the product of inexperience. What we have done in addition to relying upon the contraventions which have been found by Courts or have been admitted by the applicant is to call evidence of some recent conduct by Mr Bland in order to - for a number of reasons. Firstly to show further examples of Mr Bland's more recent attitude to the law, and industrial law, and his conduct in workplaces in a number of occasions.
PN1633
But secondly to also counter precisely the submission that was put, that the length of time since contraventions had been found against him doesn't mean that Mr Bland has seen the error of his ways or that he has retreated into a position of virtue in relation to industrial laws, but that he is in a slightly different manner still performing in a manner which demonstrates that he has little or no regard for industrial laws if their operation does not suit him. In that respect we've called some evidence from Mr Bell. My learned friend invited you - that's in relation to the Lend Lease site.
PN1634
My learned friend invited you to approach Mr Bell's evidence with extreme caution and the reason for that isn't entirely clear, but it was suggested that he took some notes at some earlier point, he made some earlier statements, and he hasn't produced those statements in addition to this statement and therefore you can have some caution. That's a submission that you might make in circumstances where there was contradicting evidence and you had to decide whose evidence you were likely to accept, and it may be an indicator of the reliability of one set of evidence where there is put against that evidence a contradicting version of events.
PN1635
It's common for Tribunals in those circumstances to say inherently whose evidence is likely to be the most reliable. Well, the problem here is there is only one set of evidence. What my learned friend has done, because it's all in the nature of the case that has been run and the way it has been run, my learned friend could only as it were snipe at Mr Bell and seek to challenge his veracity without putting or being able to put a contradicting version of events to suggest that the fact he made earlier statements means that his present statements are not correct or may not be correct, and that another version of events is likely to be more correct.
PN1636
He wasn't able to do any of that. He was only able to say - he wasn't able to offer up an appropriate comparator of two sets of evidence and say that Mr Bell is likely to be unreliable. He simply says you should treat Mr Bell as being unreliable, without putting anything against it. Now that's against Mr Bland who has, not because of stated concerns about the waiving of penalty privilege, seen fit to come before this Tribunal and explain himself or to give a contravening version of events. He is sufficiently, for whatever reason, concerned about his legal position in that regard that he has elected not to come and tell your Honour about those things.
PN1637
An applicant, as I put in the earlier debate, who seeks the indulgence of the Commission to be granted a privilege, the granting of which is dependent upon him demonstrating that he is a fit and proper person and therefore puts his character up for assessment, who does not bring his character in here for assessment, is an applicant whose case must be in large part doomed to fail. That is particularly so in circumstances where contravening evidence is put which tells very strongly against his character and against his fitness and he is not in a position, for reasons that appeal to him, to challenge that evidence, which means that evidence, unless it is so inherently unreliable that you couldn't accept it at any level, then that evidence effectively must be accepted as being unchallenged. That's the approach Watson VP took in the Myles matters, that the evidence was unchallenged and there was nothing to suggest that it was so inherently unreliable that it should be rejected, even though it was unchallenged.
PN1638
That evidence, and my learned friend put the rather bold submissions that the conduct of Mr Bland in relation to these sites was apparently - and this goes to the other site as well, in particular, that there were mixed messages and that his conduct in relation to those sites, with some minor exceptions was largely cooperative. In order to rely on the mixed messages defence, it would be necessary for Mr Bland to come and tell your Honour I was confused. I was told this and then they did that. I couldn't understand what was going on here. I was acting on the honest and conscientious belief that the earliest story I had been given was still current and I was still entitled to behave in relation to that way and then suddenly the rules change and I just didn't know what to do, and of course you don't have that.
PN1639
Mr Bland could be sitting somewhere outside this building, completely well aware of what it was that was going on and you haven't been told that. My learned friend tells you about the mixed message. But the mixed messages, this is the mixed message that was provided to him from Mr Bell. We'll start with Mr Bell, this is how mixed the messages got.
PN1640
3 June 2014 - now be reminded he was not cross-examined and it wasn't suggested to him that he didn't say any of these things. My friend did cross-examine him very briefly in relation to the 3 June matter to say that he actually only said these statements after another conversation had occurred.
PN1641
Paragraph 15 - we just want to walk the site. Answer, we haven't received your right of entry so I can't do that, I can't let you on the site. Then Mr Bland, you have to do what you have to do. Then Mr Bland left the site office and then came back in through another gate, having been told he wasn't allowed on the site. Where's the mixed message? The mixed message is you haven't received a right of entry, you can't do that, I can't let you on the site. No mixed message there.
PN1642
Then after he had been told that Mr Bland had come in through another gate, paragraph 27, Mr Bell, none of this was cross-examined. You have to leave you can't be here, I'm going to ring the police. Hardly a mixed message. Answer, do what you have to do.
PN1643
Then paragraph 34, his response to my calling of the police was to remain on site for a further 15 minutes and only departed a very short time before the police actually arrived. When someone says you're not allowed on my property, get off the property or I'll call the police and I am now calling the police, there's no mixture in any of those messages, but he ignored them. Then none of that again was cross-examined at all in relation to those matters.
PN1644
25 June - I approached the two union organisers, paragraph 40. We had a conversation of words to the following effect, boys you know you can't be here, you have to leave. Bland, we just want to have a look around. Mr Bell, you have no right of entry, you can't come on the site, I'm going to call the police, and he did call the police. Now, there was some cross-examination about whether he said that after there had been a fairly terse conversation about a contractor going broke, but there's no mixed message in any of that. Absolutely clear, you have no right to be here. That's the person in control of the premises telling him that.
PN1645
Paragraph 47 - one of the police officers approached them and said, guys you've got no right of entry, you'll have to leave the site, that was the statement made. It turned out that it was factually accurate, according to Mr Bell.
PN1646
Paragraph 49 - Bland and Vessel were deliberately walking very slowly, much slower than they had been before the police arrived and it took them at least three minutes to reach gate 3.
PN1647
Paragraph 51 - one of the police officers said words to the effect, boys hurry up. Now, my learned friend says they should be given credit for that. They actually left the site. They had two uniform police officers shooing them off the site and they obeyed the police. That's worthy of commendation. That's not what you describe as a mixed message. The only take away message from that is that Mr Bland knew exactly what was required of him before he came onto the site or immediately thereafter. He did not comply with a direction to leave the site at any point.
PN1648
In paragraph 8 Mr Bell says, on each occasion the officials simply arrived at the site unannounced and ignored the procedures laid down by Lend Lease. Immediately prior to that in paragraph 8, I never received a right of entry notice for the Stockland project from the CFMEU despite the fact that a number of CFMEU organisers attended the Stockland project. That applies obviously to Mr Bland.
PN1649
So no notice of entry at all and when they were told they couldn't enter the site, just barged on, constituting themselves as trespassers. My friend describes that in his submissions - or if my friend is referring to that in his submissions as a mixed message, then there's simply no mixture.
PN1650
What's suggested is the fact that Mr Bell actually engaged him in a conversation when he was on the site meant that somehow or other that Mr Bell had retreated from his position. He's confronted with a trespasser who won't leave for whom he's had to call the police twice and yet he engages in a conversation and that's mixing the message, that's with respect derisible.
PN1651
Similarly in relation to Mr McEwan, in his affidavit, paragraph 12. I said, you can't just walk up there, you need to show me a permit, give me 24 hours' notice, you need to leave. Mr Bland said I wish you knew the Safety Act as well as you know the Industrial Relations Act. You have no regard for the safety and you're putting my members' lives at risk. I said you can't just walk up there, I have my procedures.
PN1652
Paragraph 14 - my request for Bland and Bateman to leave the site and how entry permits was ignored on both counts. There's no mixed message there.
PN1653
Similarly, the events on 2 April, I haven't instanced these matters, they're scattered throughout the proceedings. I approached Bland, Bateman and a third organiser. I had a conversation to the following effect, I said Eddie, can I see a permit please. Bland said no, and you can stick your 24 hours' notice up your arse. Hardly a person you would have thought, if there was any element of mixed message, he would have said what do you mean notice, I don't need to give notice, you told me it was okay. You know, we're in the spirit of cooperation here. Instead he says what appears in that paragraph. What is the purpose of your visit, safety. Where is your safety concern? Bland says access and egress. Answer, I said you're trespassing, you'll need to leave. And so on and so on.
PN1654
And the police were called. You want to understand where the site manager stood in relation to this, if they called the police and get them to haul you off the site. There's no room for confusion. The fact that again, and Mr Kun had similar experiences, I won't go to the material. It won't be the subject of recent evidence.
PN1655
But the fact that in the course of those sorts of exchanges, Mr Kun or Mr McEwan or Mr Bell might have actually engaged these persons in human conversation while they were trespassing and refusing to following their directions, doesn't mean that it must be taken they were withdrawing their direction to leave the site or withdrawing their requirement to comply with site requirements or anything else. All it means is that they were behaving in a relatively civil manner which of course, Mr Bland for the most part was not.
PN1656
They are to be commended for their restraint, whereas to make a submission in these proceedings, their commendable restraint in attempting to talk Mr Bland into a reasonable position, in respect of the matter and to leave the site, to turn that around and make the submission in these proceedings that means they're delivering a mixed message to Mr Bland, with all due respect, is again derisable. It simply is an unsustainable position. As I said Mr Kun has a number of other similar examples and I won't go to them.
PN1657
What it is cemented has been achieved out of all of that is that your Honour has a view through a very recent and contemporary window into the way Mr Bland conducts himself. These are the employment laws specifically as they relate to rites of entry. Now Mr Bland has, in 2012, obtained his current right of entry. He would have, one assumes, given it's a similar legislative regime to that which exists today, he would have declared that he had been appropriately trained in relation to those matters. That declaration he must have, because it's part of the requirements under the Act. We don't have that proceedings before this Tribunal, but it would be within the records of the Commission.
PN1658
In order to make that declaration which would be a mandatory declaration for the union to make the declaration in support of his application, that would mean that he must have been accepted by the Commission as having been appropriately trained. So there's no room for believing that he didn't know what he was doing. He was fully aware and it must be taken, given his experience and length of service, he must be taken to be fully aware of his obligations in that regard.
PN1659
When he is, as he was when Mr McEwan confronted with where's your permit and etcetera and he told them to stick it in a particular part of his anatomy, it's very plain that he knew that he was supposed to give 24 hours' notice. The appropriate inference is he knew he was supposed to give 24 hours' notice and he just chose not to. Anybody who brought him to account for that was to be treated with contempt and he'd simply barge his way onto the site which is what he's done on each one of these occasions.
PN1660
What that has done, is he has failed to comply with the obligations on a permit holder, if the permit holder were seeking to exercise rights under the Act. The notice provisions under the Fair Work Act are sections 487(3) which requires 24 hours, but no more than 14 days. Section 490(3) requires that entry may only be in accordance with a notice that has been given. That is if he was exercising the right of entry with the permit that he obtained in 2012. Similarly, if there is to be an entry for state OH&S purposes, the relevant provisions are 495 and 497 of the Act.
PN1661
Were he doing so, were he entering for any of those purposes, he would have deliberately on the evidence and clearly and knowingly contravened the Act as part of a deliberate strategy. By flatly refusing to give notice, even when it's been brought to his attention on a couple of occasions of not doing it and being rude and offensive about the situation once it has been brought to his attention. Now in those circumstances, one asks rhetorically, how can it be that he's a fit and proper person to enjoy the considerable benefits of the permit for which he now seeks?
PN1662
It does appear on the face of it, that he's kept his permit firmly in his pocket. He's flatly refused to have regard to the requirements that attach to the use of that permit, although he is a permit holder and it would have been a very simple thing for him to do what he was doing lawfully, but he chose to do it unlawfully. He would have simply been required to give 24 hours' notice and then on the production of his permit, and then he could have lawfully entered the site. Fill out the site booklet or comply with employer's procedures etcetera on that site. Very simply thing for him to follow the rules that are associated with the permit that was granted to him in 2012 to come onto that site and he's chosen not to do that. He had a lawful path and an unlawful path. He chose the unlawful path.
PN1663
Similarly, in relation to, if it is an OH&S entry, in relation to OH&S entry provisions of the Federal Act and of the State Act, he has similarly refused to comply with any of them which would have been a very simply thing for him to do, because he had the permit.
PN1664
Now, one asks rhetorically, why is it, it can't be just plain laziness? Why is it that Mr Bland is doing this thing? Well, the same question was raised before Watson VP in the Myles matter and the answer that we put to his Honour, which his Honour has accepted in the decision - I won't take your Honour to it at this late hour of the afternoon. The answer that his Honour accepted is that it would appear that by not taking the permit out of his pocket, and by not producing it, he could argue in proceedings such as this, I was not exercising my right of entry and therefore those provisions of the Act, which are set out in his Honour's decision, Watson VP's decision, those provisions of the Act would create an offence under the Act, or certainly a penalty provision under the Act.
PN1665
If you engage in misconduct whilst exercising your right of entry, then you are found to have contravened such a provision, you can have the right of entry automatically suspended or terminated and you can suffer penalty proceedings and fines and other things in addition to that. If you don't take it out of your pocket, but you just simply front up to the site and then push your way in and refuse to comply with those, you are at liberty to argue that none of those provisions apply to you and your right of entry is not at risk, notwithstanding that you behaved in a grossly inappropriate way.
PN1666
Were you to use the permit that was in pocket, then all sorts of consequences would apply for what might later occur on the site such as the engaging in, or participating in or the organising of unprotected industrial action or a range of other things that might occur on the site. What it appears, in order to protect them from that possibility, they're refusing to use the permit. So, the consequences of that is that Mr Bland would, as part of what appears to be a deliberate strategy, would rather constitute himself a trespasser by totally ignoring the demands of the property person in control of that property and in some cases the police, although ultimately they appear to have complied with what the police told them to do, because that starts to get to be a criminal matter. They have constituted themselves as committing either civil or criminal trespass.
PN1667
It may well be that in the jurisdiction of the regulator in relation to civil or criminal trespass is debatable. It may also be that employers are much less likely to institute proceedings for trespass than they are to introduce proceedings for breach of the Fair Work Act or otherwise. It would seem to be that there is no other rational - I would put this on the basis that because Mr Bland hasn't given any evidence in these proceedings. He hasn't presented his character here for your examination. He hasn't produced any reasonable excuse for doing what my learned friend has conceded from the Bar table did occur on a number of occasions, that is, he did not produce a right of entry and he did not give any notice that he was attending any of these places.
PN1668
When he had such a right of entry that he could have given and the 24 hours' notice is not onerous by any means, the only rational reason we would submit, as to why it is that Mr Bland behaved the way he did, was as part of a deliberate strategy to avoid the consequences of the very scheme which he seeks by this application to gain access to. He wishes to gain the benefit of the scheme, that is the privilege of entering in accordance with the Act, if it suits him to do that. But in circumstances where he's the holder of a permit and doesn't seek to do that, he will choose to break the law by being a trespasser and refusing to obey directions by property owners such that they have to call the police.
PN1669
That gives the Commission a very clear window into the general integrity of Mr Bland, participating in an arrangement of that kind. Now my learned friend, characterised it as that he has elected not to participate in a voluntary scheme. So be it, but you should be given that wish not to be able to participate in this voluntary scheme because at the end of the day, the Commission decides whether he is able to participate in the voluntary scheme.
PN1670
But it is far more pernicious than that. It's not an innocent election, I don't want to be involved in that scheme, I will befriend property owners so they'll invite me in to the bosom of their business and we'll all walk happily into the sunset. What he's actually saying is, I won't participate in that scheme, because I could get into trouble if I do what I may well do on these sites, so to protect me from all of that, I'll just commit civil or criminal trespass. That absolute disregard for the property rights of persons, for the civil rights of other persons in those circumstances with what appears to be the cynical objective of evading the provisions of the very Act which he now seeks to take advantage of, is in my submission, in and of itself, a basis for the Commission to determine that Mr Bland is not a fit and proper person to be trusted with the privileges of being a holder of a right of entry.
PN1671
It would be well known, it would be notorious throughout the construction industry that Mr Bland is a permit holder and when he turns up on a site there would be a certain amount of respect or deference given to him on that account. But he then doesn't produce the permit at the last minute and pushes his way onto the site. Now, in my submission, that's a scheme or a scam, whatever it is, that should be treated as Watson VP did in the case of Mr Myles and that he ought not to be granted access to the so called voluntary scheme in the way that CFMEU is seeking in this application.
PN1672
There is no reason, in my submission, in relation to the balance of the evidence that's been given. There is no reason to give any real regard to the evidence of Mr Griffin at all, other than it was a fairly lame attempt to discredit Mr McEwan in some way. An attempt to contribute to the mixed messages. The net effect of Mr Griffin's evidence was that he falsely denied that he had any issue ever with Mr McEwan when he was at work or after he left. In the email when he threatened legal action against Mr McEwan or against the employer if Mr McEwan didn't do various things, he then subsequently began to express to the Commission, his severe concern about and his very great dislike for what Mr McEwan had done for him, and he did so with some feeling and some passion. It's obvious that what he thinks Mr McEwan did to him runs very deep with him and he still feels that and I allowed him to run on with quite a long answer in relation to that at some point. When he demonstrated his emotion about that issue, Mr Griffin appears to have a very deep grudge against Mr McEwan.
PN1673
That's the first thing, so you would approach his evidence with a great deal of doubt. The second thing is that Mr Griffin, the central theme of his evidence was that Mr McEwan introduced an open door policy. When challenged about that, open door policy was his own spin, his own interpretation on what Mr McEwan had told him. When you analysed on the evidence what Mr McEwan had told him, it was nothing like an open door policy. Those words, that expression that concept came from Mr Griffin, not from Mr McEwan.
PN1674
The third thing is that in relation to the events that have occurred, that Mr Griffin left the site in mid-March, about 14 March I think was the date. Towards the end of March and going into April, you have the video evidence and you have the other evidence of Mr McEwan and Mr Kun demanding that Mr Bland leave the site in no uncertain terms and we have Mr Bland refusing to do so unless and until the police were called.
PN1675
In those circumstances, where the open door policy could possibly conceivably have come from - if it endured any more than week, even if there was some attempt to open a more productive relationship between the two, it does appear to have expired on about 11 February. There were no further invitations after 3 February and 11 February, according to the uncontested evidence of Mr McEwan. The next time they crossed paths, Mr McEwan demanded that Mr Bland leave the site and he refused to do so.
PN1676
So whatever the evidence was of Mr Griffin about what might have happened early in February, it certainly was very very old news by March. By the end of March then, there were uncontradicted and absolutely uncontradictable demands that Mr Bland comply with the relevant site rules and again, if there's to be a question of mixed message that might have led Mr Bland to be confused, we would need to hear that Mr Bland, not from my learned friend.
PN1677
The last thing that was said against Mr McEwan on the basis of Mr Griffin's evidence is that Mr Griffin alleges that he did cooperate in some ways with Mr Bland and therefore again, Mr Bland might have been given some mixed message. The difficulty with that is that Mr Griffin referred all such matters to Mr McEwan and Mr McEwan decided them. Mr Griffin admitted in evidence that he had no authority to waive any of the site rules or allow anyone on the site other with the authority of Mr McEwan. He never did that thing. He never did waive any of the site rules and he admitted that Mr Bland never filled out the site visitors' book, gave an entry notice or produced his right of entry permit. He never did any of those things and that appears to be in circumstances for periods as Mr Griffin has given evidence himself, quite a significant issue with CFMEU organisers, including Mr Bland, coming onto the site and behaving in that way.
PN1678
Finally in relation to the evidence. My learned friend has gone to the photographs. The photographs were perhaps the most time consuming red herring one can imagine in these proceedings. My learned friend has sought to lay a huge amount of stock in the photographs as claiming that they depict issues which might have constituted safety issues. Now Mr McEwan has said and Mr Kun variously has said, yes a number of those things look like they were things in the photographs depicted on site. But as Mr McEwan said, you don't know the full picture. Mr Kun also said in relation to one aspect of the matter, to know the full picture, whether there was a safety issue or not, you would need to step back with the camera in order to see what the full environs were to see whether the form work was actually holding weight or it was in the process of being stripped out or whether the reo bars had been cleared for the purposes of laying down the next mesh and therefore didn't require to wear hats or whether the area in which those reo bars were unprotected, had in fact been the subject of an exclusion zone. And a whole range of issues like that that would need to be examined before you'd be able to say whether there actually were safety issues or not.
PN1679
In the circumstances of that, firstly we have no evidence other than one photograph which would seem to have been thought by Mr McEwan to have been taken on the 26th and that was the step tread issue. Beyond that we have no evidence when they were taken, by whom they were taken, what the purpose was of them being taken, or a range of those other matters that one would expect to hear from before those photographs could be given any weight at all. But again, as I submitted, all of that is completely and utterly irrelevant because whether or not Mr Bland had legitimate business to be on the site, the legislative scheme in which he wishes to be a participant by this application, allows him to enter sites for the purposes of investigating every single thing that might have appeared in those photographs and hundreds more.
PN1680
His entitlement to do so of course, is subject to the rules and regulations under the Act with which he has persistently refused to comply, as is demonstrated in these proceedings. He absolutely refuses to comply with the rules associated with him having entry to be able to do all those things. And to say when I got in there - I broke all the rules to get in there. I didn't comply with the law, having got in there, look I found some safety breaches. That exonerates me, apparently from the necessity to comply with the rules. Well, there wouldn't be a necessity for any laws in relation to right of entry if the end justified the means in that way. It would be a case if you arrive on the site, in the circumstances, break all the laws in the world to get in there and you happen to find something wrong when you get in there, or can effect or manufacture something wrong when you get in there, then you're breaking all the rules will be reversed out of the Act and you will be found not to be compliant with the Act. Of course that's absolute rubbish.
PN1681
What we say about that is that the photographs can be comfortably disregarded because all of that material, if it existed, could have very easily been unlawfully accessed by Mr Bland, if he chose to comply with the law, by giving the relevant notice and showing his entry permit and signing the visitors' book and then he could have taken a thousand photographs of the place and he could have made all the safety complaints in the world. Absolutely entitled to do that. But of course he refused to do those things.
PN1682
That again, in my submission, gives a very clear window into the moral compass of Mr Bland in relation to his compliance with laws and it doesn't matter how many safety issues he finds, if he's entered unlawfully, he's still entered unlawfully and broken the law in doing so. We say in those circumstances that against that contemporary conduct against the background of the number of occasions in which two courts have found his conduct to be unlawful and a third court is poised to do the same thing on the basis of an admission by the CFMEU in the QUD proceedings, that Mr Bland should have been acutely aware of the fact that the compliance with industrial laws is a necessary part of his obligations under the legislation and non-compliance could have serious consequences. He appears to have proceeded, regardless of that.
PN1683
For those reason, in my submission and for the reasons that we put in the witness submissions, the Commission should find that Mr Bland is not a fit and proper person to be a holder of the permit which he has been, it appears on the evidence of these proceedings, deliberately keeping in his pocket, in any event, for quite some period of time.
PN1684
Is there anything further I can assist you with, your Honour?
PN1685
THE SENIOR DEPUTY PRESIDENT: No, thank you Mr Herbert. In reply Mr Warren?
PN1686
MR WHITE: Short matters. First, my learned friend made the submission on a number of occasions that in addition to the Watpac matter and the Laing O'Rourke matter, that there were breaches of industrial law. There is no evidence before you in my submission, for reasons I've advanced earlier, breaches of industrial law.
PN1687
My learned friend relies on the admissions in QUD 257 of 2013 as breaches of industrial law and relies on the decision of Gostencnik DP about the effective admissions. You will read that decision of Gostencnik DP, without seeing any reference to section 191 of the Evidence Act. It is clear, when one reads the decision that 191 of the Evidence Act is not referred to and one may infer from that that section 191 of the Evidence Act is not a subject of argument.
PN1688
Further, and in any event, in relation to QUD 257, because those matters were made for the purposes of those proceedings, pursuant to section 191 of the Evidence Act, in the event that those statement of agreed facts is not accepted, then the parties will be at liberty to run the proceeding as they see fit. Now, I won't address the speculation that my learned friend indulged in, in respect of ascribing motive.
PN1689
I will address just briefly, some of his last submissions. It is apparently the submission of the director, that if someone takes steps to stop them being defamed, that they necessarily thereafter somehow will come and perjure themselves. Mr Griffin took legitimate, rational, reasonable steps in respect of comments which he thought were defamatory and there is no basis for the Commission to find that he came and perjured himself because he was upset about conduct which in fact stopped.
PN1690
Mr Griffin was criticised to the extent that he said that Mr McEwan had used the word open door policy. Mr Griffin's statement is quite clear in that regard where he says words to that effect were used. And indeed, if the Commission pleases, when you look at Mr McEwan's evidence in the invitation on 3 March, you might think that there's a fair degree of similarity.
PN1691
I don't have any other submissions, unless you want to be addressed on a particular matter.
PN1692
THE SENIOR DEPUTY PRESIDENT: No, thank you Mr White and thank you Mr Herbert for your assistance over the course of this matter in producing the evidence and your submissions as well. It's my practice over many years to attempt as best I can to provide you a written decision within seven working days, as defined under section 12. I will endeavour to do so in this particular situation as well.
PN1693
Thank you very much, we are adjourned.
ADJOURNED INDEFINITELY [3.49 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
DANIEL ROBERT KUN, RECALLED ON FORMER AFFIRMATION... PN855
CROSS-EXAMINATION BY MR WHITE....................................................... PN855
EXHIBIT #CFMEU3 SERIES OF PHOTOGRAPHS...................................... PN990
RE-EXAMINATION BY MR HERBERT....................................................... PN1189
THE WITNESS WITHDREW.......................................................................... PN1199
MICHAEL DAVID MCEWAN, AFFIRMED................................................. PN1200
EXAMINATION-IN-CHIEF BY MR HERBERT.......................................... PN1200
EXHIBIT #FWB4 WRITTEN STATEMENT OF MR MICHAEL MCEWAN SWORN 11/09/15................................................................................................................................ PN1251
EXHIBIT #FWB5 WRITTEN STATEMENT OF MR MICHAEL MCEWAN SWORN 21/10/15................................................................................................................................ PN1251
EXHIBIT #FWB6 MINUTE OF HSR SAFETY COMMITTEE MEETING. PN1251
CROSS-EXAMINATION BY MR WHITE..................................................... PN1308
RE-EXAMINATION BY MR HERBERT....................................................... PN1499
FURTHER CROSS-EXAMINATION BY MR WHITE................................ PN1515
THE WITNESS WITHDREW.......................................................................... PN1522
EXHIBIT #CFMEU4 BUNDLE OF SUB-CONTRACTOR COLLECTIVE AGREEMENTS............................................................................................................................... PN1527
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