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Comcare Final

 

 

My $word is the Courage to speak.

My Shield the Truth itself

 

 

To : Commissioner Smith

AIRC

Date : Thursday, July 1 1, 2002

CC : Sparke Helmore Mr. Michael Snell

SHE Law Graham Dent

Pages: 15

Commissioner Smith,

Please find attached written submission in response to the submissions submitted by Telstra/ComcareThursday 27h June as required. We have in the main taken their statements and replied. 

We would request that this reply be included in the transcript as their statements have been recorded in that manner.

 

Sine Cere

 

Mervyn K. Vogt

 

Lindman @ 801

This case of course, is about an allegation that the building in which the first applicant and members of his designated work group work in a building which suffers from the sick building syndrome

For accuracy in fact nowhere in the PIN or in the Decision is the question of Sick Building Syndrome taken as an issue though we indeed have no quarrel with the recognition of that as an element in the case.

The case is in fact an appeal against a decision of Comcare The case concerns a number of matters which taken together could be said to constitute a Sick Building Syndrome. 

The decision of Comcare includes:

(a) a refusal to permit testing of the levels of Triphenyl Phosphate outgassing from the New Computer monitors. Neither Telstra nor Comcare now contest the fact that the chemical is indeed in the monitors. Nor do they appear to contest the fact of outgassing of the chemical. Testing has been opposed in part on the grounds that:

(i) the levels of emission are too low for measurement. This is an obvious inaccuracy. As is evidenced in documents T17 & T52

(ii) there would be a measurement problem due to what has been improperly termed by Dr Gras as "Signal to noise concept' This seems to indicate lack of knowledge and is demonstrably incorrect and inaccurate Actually it is the concept of signal to noise ratio (DocoT41-42) which might have been involved. However such proposition is a nonsense as is shown by documents we have provided. Indeed (DOC T17) NIOSH manual of analytical methods (pl) gives the detail of how to detect TPP and other pesticides and even recommends TPP use as a reference chemical as there are few others which elute in that area. Our contention is borne out in the Restek document (DocoT37 P5 p8) which also Identifies TPP as an organophosphate pesticide and shows and its clear graphical identification as item 46 Dr. Gras is clearly in error in this matter the documentary evidence shows this clearly and indeed graphically. Further corroboration comes from Surface Science Labs & Charles Evans & Assoc. (Doco T52) which also shows clear graphs of 3 types all readily identifying TPP. Indeed this study clearly Identifies TPP even transferring from seat covers from 5 pound pressure and clearly identifiable.This and other such emissions would increase the total exposure to emissions of workers in the area.

(iii) The levels are not a problem for health as they are below the NIOSH recommendations. We would contend that this is an improper use of the standard in this case. These recommendations used were made I 1 years ago, are for manufacturing situations and concerned with the chemical as a solid, dust or mist not for TPP as a gas. Gasses and solids are markedly different states of matter as should be known to any secondary school student, (Doco T53) As a gas it is molecules in motion this creates pressure (e.g. in the lungs) which a solid dust or mist does not.Even more importantly solids do not diffuse, gasses do diffuse and therefore readily cross the lung/blood barrier and so are a hazard of a much higher level. A level not dealt with in the NIOSH material. In the INCHEM document of 1991 supplied by the opposition p27 at 10. 1.2 it states "the toxicity profile is quite inadequate for a full evaluation of its hazard.". 

It is to be noted we have supplied a copy of the 1997 document on Flame-Retardants from INCHEM this also indicates that there is a lack of scientific data. We have included information from IUCLID of the Great Lakes Chemical Corporation which supports the original 1930 study which identified TPP as a neurotoxin, and which in studies shows interference with neural processes, producing ataxia and certain neurological damage in some cases. These would appear to be common features of organophosphates.

(iv) That TPP is not related to pesticides and therefore the studies such as that of Moriarty (T23) relating to long term low dose exposure should not be considered. The material we have submitted shows that TPP is used as a component of Pesticides, that it is used as a synergist in pesticides to counter the defence mechanisms of the body or the target organisms. It is recognized By NIOSH as a pesticide and categorized as such by other bodies as well. The Phenyl/Phenol component is a toxin also. We have included information which confirms that 

2

(v) TPP is an Aryl Phosphate and closely related to TriCresyl Phosphate. All of these are common components of lubricants used in the automotive and aviation industries.

PN814

We have thought long and hard, based upon the materials we have been given in the history of the case today as to how long this case will take to be heard, and I don't say this as a terror factor but we have come up with an estimate of 10 days

The opposition says not a terror factor and then go on to give an estimate of 10 days to examine the materials. If they had thought long and hard they would have been aware that there are a number of key documents and others which are supportive. It should not be necessary to examine them all. Therefore the estimate is exaggerated unless they wish to make it so.

From our point of view we only need to show that the bases of the Decision of Comcare are in serious error and or they are invalid. We would seek to have the aspects of the decision concerned with Triphenyl Phosphate (TPP) and Indoor Moulds set aside. The other parts we would seek to have stand and to have the force of an order of the commission because there is little evidence of a will to implement them properly. We would therefore really be m the hands of the opposition as to how long they would need. Dr. Gras, Ms Farrelly and Noel Arnolds would seem to me to be the witnesses of importance and the examination of Noel Arnolds would be expected to be quite brief.

@816

........ and this is an appeal pursuant to section 48(2)(a) of the Occupational Health and Safety (Commonwealth Employees) Act against the decision by the first respondent to cancel a provisional improvement notice which applicant purport to issue in his capacity as a health and safety representative.

We note the grammatical error and would not have commented except for their comments in this regard We would agree that the Appeal is against a Comcare Decision, but contend that they err by omission.

The decision concerns more than the putting aside of the PIN. It also concerns the lack of proper procedures by Telstra which in themselves were a violation of the Act, in particular of S30 (d) and 36 (1) though Comcare chose not to make this observation in their decision. We do however note their decisions regarding lack of consultative approach and need for such and for the retraining of Telstra management in this regard. We would seek retention of these provisions.

@819

an appeal against either an improvement notice or in this case an appeal that is brought by a health and safety representative against the refusal of a Comcare officer to confirm the provisional improvement notice or what actually happens is he has to issue hiss own improvement notice.

We note that under S41 Comcare may conduct its own investigations on its own initiative. If the case were that the PIN had been invalid (and that we do not contend) then as they did by their own admission, make a decision on their own initiative (evidenced by Investigator Fry in cross-examination and through correspondence with Comcare then the Appeal is still valid.

3

We would draw attention to S 30 (9) which provides that the PIN is suspended immediately the request for investigation is made. And according to S30 (10) the investigator must confirm, vary or cancel. As a decision was made in this matter it did not in fact cancel the PIN but did in effect either substitute what is in effect a new PIN or it varied the PIN.

PN823

MR LINDERMAN: We don’t seek, sir, to have you determine this matter on the basis that, for example, the matter is trivial or that it is not in the public interest to do so.

We note that our opposition does not contend that the matter is trivial or that it is not in the Public Interest. One may assume the converse the matters are serious and are in the public interest. We would concur.

 

- There has been a total failure, in my respectful submission, on the part 

of the applicants to file any material which in any material way attacks the evidence upon which the first respondent relied in acting as he did to refuse to confirm the provisional improvement notice.

The material concerned goes to the very heart of the matter of disproving the basis of the decisions which concerned TPP and Indoor Moulds. It indeed attacks the fundamental statements on which the decision is based. For example the proposition that TPP emissions as a gas are of the same nature as those for a solid or that the standards of 1991 are appropriate for the present day and in a computer workplace. 

Further our documents indicate the present level of scientific and research information at this time not just that of II or more years ago. Further that the information relied upon by Comcare had provisos and reference to other documentation. There is not any indication at all that these provisos or cautions were observed in making the advice or decision.

As some of the documents we have provided are from the same sources, few as theirs were, as those relied upon by Comcare's expert it is difficult to see how such a statement as that underlined could be even entertained especially considering that ours are of a later date.

Comcare basic and fundamental statements are demonstrably incorrect and this attested to through the documents. The Noel Arnold contribution is we would contend incapable of interpretation through lack of what might be considered proper rigour, and through the use of staff who by their own admission were unable to identify any variety of aspergillus on being presented with photographs. Further they and Drs Gras were unable to identify how low level emissions could or would be measured Dr. Bisby though in the Oil Industry for, decades did not indicate knowledge in this area either.

@825

 

....... you just simply said he needs to file affidavits on any evidence that he relies. Now, those affidavits, whether sworn or otherwise, are either before you or they are not and on the material that I have received and reviewed and I understand this to be the position of my learned friends as well there is not a scintilla of evidence which directly challenges the evidence of the expert evidence upon which Mr Fry relied and equally the three bodies of expert evidence that Telecom relied in calling the inspector in to review the provisional improvement notice.

My problem with regard to this statement is that I do not understand that it is not possible for me to use the same technique as that used by Telstra and Comcare who have tendered documents as evidence in almost the same manner as that I have done. I would contend that only that the quality range and volume of those which I have presented is greater. To use the expression "not a scintilla" is clearly unsupportable. In cross-examination of the witnesses it is my understanding that it is not necessary to produce as we have done the materials which go to the credibility of the expert witnesses. Our appeal is against a Comcare decision, therefore our task as we have seen it is to prove that the single expert relied upon by Comcare was either in error or based his recommendations on outdated, irrelevant or inadequate data and opinion. It would seem clear that Comcare/Telstra are doing everything possible to prevent such examination. This applies equally to the Telstra opinions from Dr.Bisby and the testers.

PN826

So what we say at the end of the day is that whilst the applicants can talk to a great body of material that they have provided, at the end of the day, sir, You cannot be assisted in any material way by anything that has been served on us because it simply doesn't challenge in the way that it would need to the evidence that the first respondent relied on. And therefore you must do as the first respondent was obliged to do, sir, unless you, yourself, have the relevant scientific evidence to go out and make the relevant assessments.

 

Obviously we would disagree. All the material shows that the advice on which the decision was based was fundamentally flawed. Should that be found then the only requirement for the commission would be to set aside those part of the decision which relate to TPP & Indoor moulds and to require testing to proceed. We would contend that we have in fact provided a great body of highly relevant material on which such decision could be made.

@828.

Any challenge by the applicant which is directed to the scientific opinion or advice upon which the first respondent relied, while capable of being raised in a de novo hearing to have any validity must be soundly based on alternative, informed, expert evidence.

We would contend that such authority does not exclude the use of written informed expert opinion such as that which we have provided. After all Dr. Gras has relied on just such evidence. It is just that our documentary opinion and evidence is of greater range and weight. Furthermore the expert evidence relied on by Drs Gras and Bisby have disclaimers and provisions which have been ignored.

The applicant, dealing with TPP and EMR conceded at paragraph number 334 quoting that

PN830

...that information is impossible to get. It is a catch 22 situation unless the employer is prepared to provide the information.

In making this and similar comments I may have in my lack of legal experience merely not made the point that in doing so Telstra was in violation of s29 (8) of the Act and also of S30 (d), S36(l)(a),

@ 831

.... he was seeking testing to be done to determine whether there was a problem. And he cannot and he has not and he never has put it any higher than simply fishing.

That is simply not so as is indicated in 830 above. The simple fact is that based on reports of illness, and the nature of that illness, together with the introduction of the new computers, the Stockholm University information, the background knowledge of the applicants, recent past problems in the airline industry related to organophosphates we had a right to major concerns for the health and welfare of the workplace. A reasonable person would be justified in having reasonable belief that 

(1) there was a problem, 

(2) that the problem related to TPP, 

(3) that there would be other factors involved as well, 

(4) that the employer was in violation of the Act in failing to provide the necessary information. It is worthy of note that the proposition that the TPP was a component indeed has been shown to be correct. The respondents are factually incorrect, there was no doubt that there was a problem and that at least some of the causes had been pointed to.

@ 832

They appear, on their face, to be extracts from publications. Some appear to be extracts taken from the web but when one examines them as we have in some detail they do not, in any direct way or any informed way, challenge the evidence or the opinions that the first respondent relied on.

The statement is obviously invalid. If the opposition has examined the documents in any detail they will be aware as indicated above that some of the documents are indeed from exactly the same sources they themselves have used. Indeed the Environmental Health Commission document is from exactly the same source as one of the few documents on which they have themselves relied and like their own document it is taken from the same web source. Our documents are therefore of at least equal value to theirs and indeed we would contend ours are superior in all respects in this matter.

@834

And if one reads it one can see that there are many grammatical and spelling errors in the document. It doesn't purport to be on its face a document that has been written by Dr. Peter Dingle and indeed I instructed my instructing solicitor to contact Dr Dingle to ask him whether or not he was prepared to adopt this material as his own and indicate we haven't had a response from Dr Dingle.

This is hardly worthy of comment but it illustrates the pettiness and apparent desperation our opposition. I shall not make comment on their various grammatical and other errors. Had they asked I could have told them that Dr. Dingle was in fact on leave which would explain the lack of response.

@ 835

What we need is some clear evidence that in this particular workplace, as it was, there was evidence of the presence of aspergillus or some other form of mould that could be deleterious to health and safety.

This is a quite dishonest argument which is being advanced. Both Telstra and Comcare are well aware that there are members of staff in that workplace who have been diagnosed as having reactions to indoor moulds. They are aware that a member of staff has had to be relocated as a consequence of such reactions. They are well aware of the fact that another member of staff has been diagnosed as having similar reactions and Telstra has recognized the validity of the situation as it has supplied the staff member with two expensive air purifiers in order to relieve the problem. The particular staff member is in the new building and is experiencing similar symptoms and is at the writing of this submission absent for this reason. Dr. Colin Little is a specialist and he has seen these and others of our group. He is able to give evidence on this. It is interesting to note that in this statement is an apparent admission that Aspergillus and other Indoor moulds are a threat to Health and Safety this is counter to thepropositions being propounded by Drs. Gras and Bisby. The opposition must also be clearly aware that the so-called testing carried out in my absence has results which are in a form which is quite useless in this context. it is technically and procedurally fundamentally flawed. This is a matter which would be able to be illuminated by both Drs. Dingle and Little.

@836

Dr Colin Little’s material and that which is attributed to Dr Peter Dingle is this, sir, that it deals exclusively with the moulds or the aspergillus matter which of course is referable entirely and it is building specific because we are now in a new building and on any view, sir, any matters - and we don't understand even in his short address this morning that the first applicant is challenging the fact that both he and the members of the designated work group are now in a totally new working environment.

In this regard the staff who have transferred to the new building include some who are already suffering similar problems. I reiterate the shift is to a building in the same estate built at the same time and of apparent similar design. We note that at least one of the most severely affected persons has again apparently been affected.

We note that amongst the material now provided by Telstra that the air-conditioning system in the new building (building 3) has been modified to conform to certain Australian Standards. From this we assume that previously the building did not conform to such standards. It is of note that the information which was requested by the CEPU and the OH&S representative has not yet been made available.

(a)837

That the sheer magnitude of this material and the diversity of its sources. and the apparent lack of relevance is singularly frightening. In itself it is a potential occupational health and safety risk, I would suggest to you, sir. I don't say that lightly.

We do not doubt that our opposition finds the documentary evidence "singularly frightening" in its volume in variety of sources and its magnitude. Its relevance not the lack of, we would suggest is the  reason for the fear it induces in them. They indeed make the point they do not speak lightly. This could well explain the vigour of their combined efforts to prevent the continuation of the examination of Dr Gras and the fear of presentation of the documentary material. The proposition that documents we have provided are an OH&S risk is quite unacceptable in this context.

@838

Further, in the light of further recent developments if the applicant demands the right to continue cross-examination and he fails to demonstrate a proper technical basis for such cross-examination the second respondent gives notice it will seek costs on the grounds that such conduct would be either vexatious and/or without reasonable cause within the meaning of those terms as used in section 347 of the Workplace Relations Act.

It would appear that Telstra in particular in this matter is seeking to introduce an element of terror and threat into the proceedings. It is not clear to us why Telstra has made this move to avoid the mere completing of the cross-examination of Dr Gras who is in fact a Comcare witness. Telstra as a corporation has by its own statements before the estimates committee of the Senate indicated it has $5O- IOOm per year devoted to legal expenses alone. It is clear even from the statements earlier that the matter is not trivial. As there has been a history of illness and of defects in the OH&S regime adopted by Telstra it is not we who could be considered vexatious in this matter.

We note that the Commission in this matter is sitting under the Occupational Health and Safety Act.If the matter were without foundation or vexatious then the commission would have had the option of dismissing the case out of hand.

We are concerned that Telstra should seek to try to set precedents in this area which would run directly counter to the provisions of S28 (7) of the Occupational Health & Safety Act under which the Commission is operating in this case.

Such blatant scare tactics should have no place in this type of OH&S forum.We note that it has been the choice of both Comcare and Telstra to take the choice ofusing public funds to engage four legal representatives to fight a 70-year-old non-legallytrained OH&S representative. Win loose or draw this can bring no credit to the two Goliaths. They could better have chosen to consult and discuss further and have possibly avoided the need for us to take this action.

We note that were it not for the current application of Telstra/Comcare the examination of Dr. Gras would have been completed and possibly most of the other examinations of the opposition witnesses. The delays are therefore purely attributable to Telstra /Comcare.

We however reiterate that our action is taken purely with concerns for the health and safety of our colleagues and fellow workers. It is indicative of the situation and attitudes of Telstra that their lack of consultation, reluctance and delays in providing information has already lead to a number of workgroups conming to both industrial and OH&S action in the new building which as stated before is part of the same complex.

We also note that the opposition has indicated that the matter is not trivial or against the public interest. There can of course be no question of the matter being vexatious. We have put considerable time and effort into these matters.

@839

1 don't resile from the proposition that certainly as I understood it based on the material I am positive and if I am pressed I will find references to sick building syndrome. That is clearly the understanding that I have had as to the basis of this case and I had thought the applicant had used those very words on 3 April

We would point to the fact that neither the Decision against which this Appeal is made nor the original PIN and its various extensions used the term Sick Building Syndrome. 

We are really comfortable with the term itself but we did not make it the basis of our actions as we felt that it was a more difficult matter to define. This statement however we feel demonstrates the lack of understanding and accuracy on the part of our opponents.

PN840

So we say in paragraph 10.The current position may be summarized as follows. The applicant has been unable to point to reasonable grounds for his belief that the Occupational Health and Safety Act and a regulation was contravened in the manner for any PIN to be able to be lawfully issued.

Indeed, the applicant has conceded the existence of the catch 22 situation. That is, he needs his employer to conduct tests to determine whether there are any relevant risks to health.

We would contend that the initial breach of the Act is the failure take all responsible steps to endure a safe workplace, the second breach of the Act is to fail to provide either to the OH&S Representative orto the Committee the requested information as required by the Act as mentioned above (s29,30,36). The deduction, the induction and the eduction, (the latter concept being one with which the opposition lawyers appear to have little understanding) which have all been proven to be correct. 

There is now no question that the Triphenyl Phosphate is indeed in the computers. An indefinite at the moment is the rate of the emission of the gas. At this stage we note that there has been no apparent suggestion by the opposition lawyers that TPP is not an organophosphate or that it is not a neurotoxin.

PN842

And we don’t take the point that they have to be sworn but we take the point that what the that what the Commission, we understood, was referring to because it was based on requests made by myself, at least in relation to the order you made on 3 April was that the fair intent of the direction was that the applicants embrace the requirement that they had to find the relevant experts who were prepared to say that the respondents experts were wrong in their opinions, not the methodology but in their ultimate opinions and they had to be prepared to do that – that he had to provide evidence by way of relevant statements, that they were prepared to do that to support his case.

To reply to this we would point to the fact of the actual direction reproduced below PN791

THE COMMISSIONER: Thank you. The Commission's list at the moment is quite busy. So l will adjourn until that day, subject to any problems that you may experience, Mr Watson, and then, if necessary, my associate will liaise with the parties about setting other dates. And at least,a fortnight before, Mr Vogt, if you can provide any affidavit, any further affidavits you have of any witnesses, and if there is any material upon which you wish to rely, if you would also provide that. Other than that I will adjourn till ]O o'clock on the 27th, thank you. Yes Mr.Vogt?

We have indeed provided the material. We have given the answers to questions by Drs. Dingle and Little. It is my understanding that the main task we have is to prove that the experts on whom Comcare in particular and peripherally that Telstra replied on were incorrect in the basis and the methods they used, and/or that they were not specifically expert and that therefore the decision was unsoundly based and wrong.

PN855

Now, what the applicants seek to do really is to somehow railroad this Jurisdiction into some form of general scientific inquiry, That is just not its role. At the end of the day, pursuant to what was said in Rutjens the Commission as currently constituted is put by the legislature into the position that was occupied by inspector Fry to make a determination on material which is the current objective state of knowledge about these matters. Now, to rely on independent experts – in fact, we would say that Inspector Fry could do no more than rely on informed evidence by relevantly qualified experts.

We have no desire to railroad anyone even if we had the power to do so. We note that they use the term "relevantly qualified" experts. We would contend that neither of the medicos relied upon are specialist neurologists, toxicologists, biochemists or environmentalists nor are they mycologists in which areas of expertise these matters fall. By their own admission they did not consult such "relevantly qualified experts". We have provided much documentation of the present state of knowledge in these matters and they have been from independent Australian and international sources.

PN856

He said that those people are somehow not appropriately qualified or their conclusions are not sustainable for some proper scientific reason. This is the sort of material that the applicant has to find if it exists. In my respectful submission, the material he has filed doesn’t get within a bull’s roar of even beginning to make out that sort of test.

Ignoring the extravagant language we would point out that it is this very information which Telstra/Comcare is now seeking to prevent being used or examined.

@858

Alternatively, the Commission only has before it a body of expert opinion based on current occupational exposure limits for either TTP and EMR, which is uncontradicted and accordingly, this evidence must be accepted

For the sake of accuracy in these matters it is TPP not TTP. We would point out that the source used by Comcare was from 1991and based on material from the 1980's and ignoring the studies of the 1930's which are now confirmed by the current Great Lakes Chemical Corporation study cited above (Doco 60 pp 17-). This study was current at the time of the Decision but they show no reference to it for obvious reasons. We would say that there is not need to contradict the exposure limits quoted for the simple reason that they apply to solids and make absolutely no reference to the chemical as a gas. Furthermore the standards were set for manufacturing situations and make no mention of office environments which are significantly different especially in the case of computer workers. Call centre workers are tethered to their workstations for almost their entire working day. Their faces are close to the screens. They are mouth as opposed to nose breathers and therefore are at greater risk than others from airborne contamination and toxins.

@861

In this regard We believe that we have supplied the information referred to it isTelstra/Comcare who do not wish it to be brought forward.

PN865

A reasonable person - a reasonable man has to be prepared to – has to be shown to be prepared to form the belief that the that the applicant’s employer breached the legislation, in summary, and I say that is not possible. I should just read into the transcript again what was said at paragraph 178 of transcript of the first day’s hearing.

 It says this :

PN866

By its very nature, as I said

PN867

This is Mr.Vogt Speaking

EN868

It is difficult. Intuitively, these computers are a major health problem. There are health and safety welfare problem. Intuitively …(reads) one by one the possible factors.

10

This has been taken out of context. It was one of three sets of criteria which might have been used by any reasonable person. All of which criteria the met. In relation to the breach of the Act it lies in many quarters the main one of which the opposition lawyers must be aware is the failure to provide information as required by the Act.

Most obvious and pertinent at the moment is the computers themselves. Intuitively I believe that..(reads) biocumulative. I believe this is, in fact the case now

PN871

And he goes on to speak about organophosphates. So we are dealing with what I submit is simply a fishing expedition. Sir the problem is that the applicant seeks you to join with him in that fishing process and, in my respectful submission, that is not the role of this Comission and certainly the parties should not be required- the respondent should not be required to sit by and watch this process at potentially huge expense. It might be said that there has already been a huge amount of money expended.

 

There is no fishing expedition. The presence of the TPP is determined. The expense has derived from the actions of the respondents and their failure to be prepared to genuinely discuss in good faith despite attempts to do so on our behalf This behaviour has indeed already been shown have continued. Such behaviour is even evidenced in the decision by Comcare.

 

EN877

That is, that section 29(1) of the Occupational Health and Safety Commonwealth Act requires that health and safety representative hold a belief on reasonable grounds. As you know, just while we are in that section- this whole appeal derives from an action taken under section 29(10) following – and you have already seen evidence of this and heard from Mr Fry – a detailed investigation, a decision by Mr. Fry to cancel the PIN. Now, if I take you from there to the actual operative section under which we come here today, that is section 48.

We would contend that the investigation in certain areas that of TPP and Indoor Mould is not and was not detailed and certainly not sufficiently detailed.Apart from the first and poorly organized meeting convened by Comcare and a second meeting to deliver the decision verbally we had no involvement in the decision. The only investigation of the workplace was a very brief unannounced and disorganized walkthrough. At no time was there any invitation to the CEPU or the OH&S delegate to be present at any investigation as is required under the Act. There was to the best of our knowledge any examination of the obviously water damaged ceiling tiles not any indication of the knowledge of the existence of let alone examination of the false floor which would be a highly likely source of Indoor Mould infestation. Indeed the existence of the False Floor only came to our attention by accident. The management had not revealed the fact until we about to move into the new building.

PN878

I know that you have already spoken of your understanding that it is section 48(2)(a) which brings us here: that is, an appeal against the decisions of Mr Fry to cancel the PIN. May I point you in the direction of subsection 6 of section 48,which gives to the commission ample and widespread power to affirm or revoke the decision, and we are going to ask you to affirm it. Now, I will just deal very briefly with Rutjens. On no view can Rutjens be held up as an authority which inhibits this Commission’s control of its own processes.

We would take you to 48(7) which also indicates the power to "Vary" and that is our request which would be to vary the decision by way of confirming those parts which refer to changes in consultative processes and retraining of management concerned with OH&S. and negating withdrawing those parts pertaining Indoor moulds in view of the shift in location, and modifying the decision in relation to TPP to enable testing to take place- in regard to testing the evidence relied upon by Dr Gras and Comcare it is clearly flawed and in error. A number of our submissions clearly show three forms of testing where TPP is clearly able to be identified and that in fact so far is it from being difficult to find and distinguish that it is in fact used as a reference material.We would also request that the Commission include in the modified PIN the requirement to comply with S 36(l)(a) and S 36(1)(a) and 30(l)(d)

PN882 

MR WATSON: The question was:

PN883 Does the PIN anywhere state or suggest that there has been exposure? Where does this question of my allegation ... (reads)... neither does anybody else, do they?--No.

This question goes to the accuracy of the Investigator and also in our summing up would have shown that the investigator as a reasonable person had made such an assumption himself. It is logical and reasonable to believe that there is a very high order of likelihood that the monitors are the cause or a major component of the health hazard.

PN-884

Then there is a question which commences "they don’t" it then goes on. The Commission there interrupted and there was an exchange between the Commissioner and Mr. Vogt which was to the effect that by that very question you concede that you couldn’t hold the relevant requisite under section 29. Mr.Vogt did not, I respectfully submit, have an adequate answer to that interjection by the commission. It is a matter of significance. Moreover there are other references which litter the transcript and I am only going to read you a couple, and I won’t ask you to go to them for the moment but in paragraph number 175 Mr.Vogt said in opening the case:

 

PN-885

The study has been initiated because of computer worker ill health. I, therefore reasonably infer that the monitors there may be a source of ……..(reads). The PIN is therefore reasonable.

PN-886

With respect, that is, at very best, most charitably, a misconception. At paragraph 178:

PN-887

By its very nature, as I said it is difficult. Intuitively, these computers are a possible major health problem…(reads) I believe this is, in fact, the case now.

Telstra as the employer had refused or failed to provide the requested information, over a very long period of time, in that it was in violation of the Act. Telstra as the employer had failed to act within seven days of the imposition of the PIN. Also in a spirit of good will and good faith I had extended the PIN.

It is notable that the opposition has chosen to attack only the eductive logic reasoning which was involved. The fact is that the reasoning was correct, and has been proven correct. It is not now disputed that the TPP is in fact contained in the monitors. Nor has it apparently now been disputed that the emissions are taking place. That the PIN should have included references to the requirement to provide the information is a matter that could we submit be remedied by the commission. Those who work in the area should not be penalized by a formality or by my lack of experience in formulation of PINs the purpose is to proactively protect the health of the workers. It is not and should not be a game of legal one-upmanship played by lawyers for their own benefit. This is especially so when I as the OH&S representative had in the earliest stages asked the employer advise me of any perceived defect in the PIN. As this particular employer is the largest corporation in the country and has massive legal advise and assistance at its disposal it should have at that time advised of any defect in the PIN rather than waiting in ambush to do so at this time.

PN889

Being questioned by Mr. Vogt after he had established that Mr. Fry had been an investigator for 12 months, question :

PN-890

Just over 12 months and they threw you into this one. Goodness. And one of the biggest corporations in the country?

This as no doubt the opposition should be aware was seeking to demonstrate that in our opinion Comcare had not treated the matter with the seriousness it deserved. We are aware that Mr. Fry is very junior and lacks experience and that the senior people from either Telstra or Comcare have seen fit to take the stand, they have left low level junior staff to take the brunt of the action. This is though wehave noted the senior people in the body of the court.

PN-893

I just tell you what some of the issues which this commission will hear about if this appeal continues include.

"Something from America". Where a company was boasting that their Golden 86 wheat is certified chemical free. The only connection between that document and this case is that, omongst other things, they boast that it is free of triphenyl phosphate. Another one, which is in the volume provided behind the guide card 21, is an article about the toxicity of commercial jet oils.

Amongst the approximately 140 documents they hone in on the Golden Wheat. Part of the reason for its inclusion which is purely supportive is to confirm that it is in fact regarded at all levels as a component of pesticides. This was a matter vigorously denied by Dr. Gras and it has serious implications. It coexists with the USA Food and Drug Administration (FDA) (Doco 64) which included examination of food contaminants recently conducted (2000) and included information which shows that TPP is now starting to be found in common foods. It also supports other such documents.

In regard to Doco 22 (behind 21) had they gone to pages 4 and 5 they would find that they give chemical structures of the Aryl Phosphates which include T'PP. TPP is a common ingredient in products of the oil industry. Pages 6-10 provide a compact overview of the toxicity of organophosphates which include TPP. Professor Chris Winder was kind enough to provide the advance copy of the published document He was an expert submitter to the Senate Inquiry into the well-publicized aircrew cabin incidents throughout the world including Australia. International Airline Pilots associations have publicly aired their concerns about the involvement of the organophosphate additives in the oils of which TPP is common together with the closely related TnCresyl Phosphate. The documents presented are therefore highly relevant. The inclusion of the Australian article is partly to give support to the dating of the availability of the information as being prior to the date of the imposition of the PIN. It and much of the other information from BBC sources was available both to myself and to Comcare prior to the imposition of the PIN. I am ex RAAF and have a natural interest and my reasoning and logic are based on information from which a reasonable person could form opinions. Dr. Gras has attested to the fact that he is required to keep his knowledge current the incidents referred to were not only international they were Australian and reasonably should have been known to a specialist expert in Occupational Health and Safety. Indeed Dr Bisby was I understand a consultant with the Oil Industry for decades and must be considered to have been aware of these matters though he not only.made no mention of them in fact actually objecting vigorously to being questioned in any way.

@ 895- 907

1 am not a lawyer, however I would believe that there is a significant difference between criminal proceedings and the present jurisdiction. My understanding is that the burden of proof in criminal proceedings is that of being "beyond reasonable doubt", whilst that in our proceedings is "on the balance of probabilities".

Nonetheless we would contend that a reasonable person would have come to the same or a similar conclusion that the Act was not being adhered to. The employer was not providing the information which it was by the Act required to do so. And this was in an atmosphere in which here was a need to protect the health and safety of the staff. Telstra delayed action or investigation for approximately 6 months. It was only under the imposition of a PIN that it took any action and the presence of TPP was eventually confirmed. When it sought the information from the supplier the response by Telstra's own admission and statement did not satisfy the requirements of the "Duty of Care".

 

PN-906

In other words a suspicion is less than a belief. This case is a belief. At page 116 point 3, the court said this:

PN-907

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief but that is not to say that the objective circumstances must establish on the balance of oribabilities that the subject matter, in fact occurred or exists. The assent of belief is given on a more slender evidence than proof.

 

 

As I understand the matter belief in the criminal jurisdiction would mean that there would need to be a belief based on objective circumstances or evidence that on balance of probabilities that the situation does in fact exist. I believe that the PIN actually contains that. There was objective evidence as has been demonstrated above.

What we do know is that this case has been brought forward on no more than speculative intuition of the existence of a problem. WE would respectfully submit it, at al times, on the concession of the way that it has been brought forward forward fail and we ask you to dismiss the appeal under section 48(6). Thank you

Being as charitable as possible this assertion is patently unsupportable and invalid. It is taken out of context in which 3 areas of logic were used as well as the very substantial amount of documentation we have provided compared with the expected paucity of that provided by Comcare and Telstra. It is not surprising that our opponents would seek to down grade one of the most productive areas of thinking to which roughly half of the population would subscribe.

PNB91

We also ask you to take into account the very fundamental fact that Telstra has now left the building as being indicative of no proper basis for the appeal continuing

At 801

. ....first respondent and all members of his designated work work group have been shifted to an entirely new building. So we would say that in principle the basis for the provisional improvement notice has, in a sense evaporated

1 4

Firstly I would believe as a reasonable person that our opponent really means the first appellant or applicant

We would submit that had Comcare/Telstra stack to this simple proposition the case could have come to this conclusion earlier. instead they have seen fit to make statements and arguments which could not go unchallenged We submit that the inordinate delays by Telstra and the unexplained long time taken by Comcare to take any action whatsoever would appear to have had the effect of denying ourselves and the commission the opportunity of examing the evidence and the facts.

 

The move to the new building is a matter of fart which is not and cannot in the circumstances be in dispute. However we would point to the fact that the new building is on the same estate, built at the same time, indeed directly opposite and is owned and is managed by the same as in the previous building. Though we have for months made requests we have not been given access to the plans, or maintenance records for the new building nor have we been permitted to inspect the air-conditioning system. We are therefore forced to assume similar design and conditions. Potentially there are similar problems.

I understand that as of yesterday (10th) Telstra will provide the information but there is already some doubt in the matter.

We are however aware of the problem that the shift may give rise to in the present case. We are reluctant to withdraw as there are many issues raised in the decision and in the processes adopted which really need resolution.

 

As we have indicated there are those who have claims for workers compensation which will be heavily influenced by the Comeare decision being allowed to stand. There are staff who have been specialist diagnosed as having allergic reaction to indoor moulds who were employed in the old building Their cases would be jeopardized and this would of course be regrettable.

 

However having regard to difficulties which may confront the commission with the change of location and to the fact that Comcare/Telstra appear prepared to drag the Commission into unnecessarily long hearings which could act to the detriment of our workplace we would be prepared at this stage as a gesture of good will with the permission of the Commission to withdraw from the present action. We would hope that this action will lead to Comcare and Telstra adopting genuine and good faith consultative approach in these and other related matters in the future.

 

Finally we cannot be but astounded that Comcare and Telstra have taken the positions and the legal avenues they have. The expense they have put us all to is probably far greater that those which would have been incurred had they taken the required corrective action, to say nothing of the continued risk to the health of staff. The solutions were simple. In relation to the indoor moulds they needed to simply clean the ducting, and cleaned in the false floor the existence of which they had not revealed. In the case of the TPP to have had the monitors returned to the supplier and had them replaced by those without TPP in their construction. Alternatively to have arranged for a better airflow over the workstations to draw the hazard from the faces of the workers.

15

 

 

 
 
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