[2015] FWC 3359 [Note: Appeals pursuant to s.604 (C2015/4810) was lodged against this decision - refer to decision dated 29 July 2015 [[2015] FWC 5155] and Full Bench decision dated 2 December 2015 [[2015] FWCFB 5621]] respectively for result of appeals.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.512 - Application for a right of entry permit

Health Services Union-Victoria No. 1 Branch
(RE2013/426 and others)

VICE PRESIDENT WATSON

MELBOURNE, 26 JUNE 2015

Application by Health Services Union - Victoria No. 1 Branch for Entry Permits – whether right of entry tests were performed by persons other than the officials – if tests were performed by others, who were they performed by – if tests were performed by others, who authorised or had knowledge of the practice – who undertook the test declared to be conducted by Ms Asmar – who undertook the test declared to be conducted by Mr Katsis – who accessed Mr Mitchell’s ACTU account – whether inaccurate declarations were made – whether permits should be revoked - Fair Work Act 2009 ss.480, 507, 512, 513, 582, 603, 625.

Introduction

[1] This decision arises from proceedings before me pursuant to a direction of the President issued on 9 May 2014 regarding entry permits issued to various officials of the Health Services Union-Victoria No. 1 Branch (the Branch) The proceedings relate to applications pursuant to s.512 of the Fair Work Act 2009 (the Act) and some further entry permit applications from the Branch that at the time of the President’s direction had not been determined.

[2] The matters subject to these proceedings were brought to the attention of the Fair Work Commission (the Commission) when, in August 2013, Ms L. Flynn, the then Assistant Secretary of the Branch, wrote a letter to the General Manager of the Commission alleging that, among other things, certain officials of the Branch had not undertaken their own test to qualify for an entry permit.

[3] From September 2013, Mr C. Enright, the Director of the Regulatory Compliance Branch of the Commission, made inquiries as to the circumstances in which entry permits were issued during 2013 to certain officials of the Branch. On 24 March 2014 the Director issued a number of notices of adverse or potentially adverse findings (Notices) to officials of the Branch. The Director foreshadowed in the Notices that he proposed to make final determinations.

[4] In a Memo to the President dated 5 May 2014, the Director supported a request from the solicitors for the Branch that the matters be referred to a Commission Member, as the outcome of his inquiries might raise for decision by the Commission whether the entry permits concerned should be revoked and/or whether the Commission should refuse some further entry permit applications from the Branch that had not been determined.

[5] On 9 May 2014 the President issued a direction pursuant to ss.582(4)(d) and 625(4) to the effect that the matters be transferred to me to deal with the issues raised by the Notices. The direction relevantly states as follows:

[6] A directions hearing was held on 22 May 2014 to address the further conduct of the matters. At the directions hearing the relevant officials, including Ms D. Asmar, Mr D. Sherriff, Mr N. Katsis, Mr S. Mitchell, Mr D. Rowe, Mr D. Eden, Ms J. Ghantous and Ms R. Charbel, were represented by Mr M. Champion of counsel. Following the directions hearing I made directions for the conduct of the matters. Counsel for the officials indicated that directions would be the appropriate way to deal with the matters. After setting out the background of the matter, the following directions were made:

[7] No draft terms of inquiry were filed by the solicitors for the officials by the date required in the directions, or subsequently, after communications from my Associate. Pursuant to the directions, I published a document entitled “Terms of Inquiry” on 18 July 2014. The terms set out 20 questions I proposed to consider in the course of dealing with the issues raised in the Notices referred to in the President’s direction. The first 16 of those questions related to entry permits that had been issued to various officials of the Branch pursuant to s.512 of the Act. The remaining four questions related to applications for entry permits that had not been determined at the time of the President’s direction. The questions were as follows:

[8] The September hearing dates scheduled for hearing the matter were vacated at the request of the relevant officials in order to permit KPMG, engaged by the officials, to complete inquiries in relation to the right of entry online testing system and to enable the legal representatives to prepare for proceedings of the Royal Commission into Trade Union Governance and Corruption (Royal Commission) which had also begun to enquire into the same matters. Ms Kimberly Kitching, the then General Manager of the Branch sought to be represented by counsel in the proceedings and supported the adjournment application. Alternative hearing dates of 27 to 31 October 2014 were set down for the hearing.

[9] On 22 September 2014 Ms Kitching, through T. Borgeest who at the time was her solicitor at Slater and Gordon, made an application under s.586(a) of the Act that the first 16 questions not be considered by the Commission. Submissions in support of the application were made at a hearing on 14 October 2014. Supplementary written submissions were made on behalf of Ms Kitching on 16 October 2014 by Mr T. Borgeest and on 24 October 2014 by Mr P. Morrissey, senior counsel. Supporting correspondence was filed on behalf of the officials on 24 October 2014.

[10] Ms Kitching submitted that there is no power under the Act available to the Commission in the circumstances of the Inquiry to decide to revoke the permits that have been granted under s.512 of the Act. It was submitted that Mr Enright has been delegated the power to grant a permit pursuant to s.512 of the Act but s.512 does not provide a power to revoke a permit after it has been granted. It was further submitted that the Inquiry was initiated without the power to do so and persisting with the Inquiry persists with the flawed nature of the proceedings, and it is beyond the power for the Commission to continue to deal with questions 1–16 of the Terms of Inquiry.

[11] On 27 October 2014, at the commencement of the hearing on the Terms of Inquiry, Mr Morrissey, senior counsel for Ms Kitching, requested that I provide a decision in relation to the application to amend the Terms of Inquiry before proceeding further. A decision on the amended application necessarily involved a ruling being delivered on the jurisdictional challenge that had been made. I stated as follows:

[12] Counsel for Ms Kitching advised that an application would be made to the Federal Court challenging the decision to proceed in the absence of first determining whether the Commission had jurisdiction. In those circumstances, I adjourned the matter to enable the parties to make application in the Federal Court.

[13] On 28 October 2014, Ms Asmar and Ms Kitching filed an originating application in the Federal Court challenging the Commission’s jurisdiction to proceed with the Inquiry and seeking interlocutory and permanent injunctions against the Commission from proceeding further.

[14] On the same day, Beach J granted an interlocutory injunction against the Commission restraining it from proceeding further until it had first ruled on its jurisdiction to proceed. 1 The further hearing of the originating application was adjourned to 17 November 2014 for directions.

[15] Later that day, I issued the decision in relation to jurisdiction and found that the Commission has jurisdiction to proceed, relevantly stating as follows: 2

[16] On 29 October 2014, at the hearing of the matter I indicated that I would commence to take evidence. Counsel for Ms Kitching and counsel for the officials sought an adjournment of proceedings so that they could file an application seeking an interlocutory injunction against the Commission that until the hearing and determination of the Federal Court proceedings concerning jurisdiction, the Commission be restrained from proceeding with the inquiry. I granted the application for an adjournment.

[17] Later that day Ms Asmar and Ms Kitching filed an interlocutory application in the above terms. On 30 October 2014, Beach J granted the interlocutory injunction in the terms sought.

[18] The Federal Court proceedings were heard on 5 December 2014. On 29 January 2015, Beach J issued a decision in which it was found that the Commission has jurisdiction to proceed with the Inquiry. Beach J said:  3

[19] On 15 December 2014 the Royal Commission Interim Report was handed down. Chapter 9 of the Interim Report concerned the following issue: 4

[20] The Royal Commissioner found the following:  5

[21] The Fair Work Commission listed the matters for Mention/Directions on 12 February 2015. On 11 February 2015 solicitors for the officials wrote to the Commission requesting that the Terms of Inquiry be amended. Without admissions as to the allegations against them, Mr Eden, Mr Rowe and Mr Sherriff sought to have their permits revoked. The correspondence relevantly stated as follows:

[22] In relation to Ms Ghantous and Ms Charbel, it was noted that they have both ceased to be officials of the union. In those circumstances, it was submitted that the applications could not be maintained and therefore the questions of the Terms of Inquiry relating to those officials should not be considered.

[23] Solicitors for the officials included a proposed order for consideration at the Mention/Directions hearing, which each of the officials consented to.

[24] At the Mention/Directions hearing on 12 February 2015 the officials were represented by Mr Champion of counsel. I indicated that I would grant the order in the terms sought. In addition, I invited submissions on the following issues:

[25] Counsel for the officials requested to take the questions on notice. Accordingly, I invited counsel to provide written submissions at a later date.

[26] On 13 February 2015 the Commission granted the order in the terms sought. 6 The effect of the order is that the following questions of the Terms of Inquiry remain:

14. Whether the right of entry permit issued to Mr. Katsis should be revoked.

16. Whether the right of entry permit issued to Mr. Mitchell should be revoked.”

[27] On 19 February 2015, solicitors for the officials made written submissions on the questions raised at the Mention/Directions hearing, which were summarised as follows:

[28] My Associate outlined my response to the questions raised in an email on 3 March 2015 which relevantly stated as follows:

[29] At the request of the solicitors for the officials, I held a hearing on 8 April 2015 to enable counsel to make oral submissions in relation to the following:

[30] Ms S. Keating of counsel appeared on behalf of the officials. After hearing the submissions, I determined that I would maintain the position in relation to the two issues that were addressed. I confirmed that I will give some latitude if it is contended by counsel that cross-examination was limited in certain ways in the Royal Commission proceedings, and parties have the ability to make submissions about the findings of the Royal Commissioner and the extent to which they might be relied upon, or guide the assessment and evaluation process.

[31] The matters were listed for hearing on 23 and 24 April and 4 May 2015. At the hearing of the matters Mr R. Van de Wiel QC and Mr M. Champion of counsel appeared for the Branch and the officials. As she had ceased to be employed by the Branch, Ms Kitching was no longer represented in the proceedings. Mr Matthews of counsel appeared on behalf of witnesses Mr C. McGregor and Mr A. Leszczynski. The hearing date of 24 April 2015 was vacated to allow some of the witnesses to seek advice in relation to the operation of the privilege against self-incrimination. The matter was listed for an additional day of hearing on 11 May 2015.

Background

[32] Under s.512 of the Act, the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold an entry permit. In deciding this, the Commission must take into account the “permit qualification matters” set out in s.513(1).

[33] Section 513(1) of the Act is set out below:

[34] Sections 512–513 are within Part 3–4 of the Act, entitled 'Right of Entry'. The objects of Part 3–4 are set out at s.480:

[35] Each application contained a declaration from the proposed permit holder (Ms Asmar, Mr Katsis and Mr Mitchell) and a declaration from a Member of the Branch Committee of Management addressing the matters required by s.513 of the Act, in particular, declaring that the proposed permit holder received appropriate training about the rights and responsibilities of a permit holder as required by s.513(1)(a).

[36] The Australian Council of Trade Unions (ACTU) has a right of entry training package that has been approved by the Delegate of the Fair Work Commission. The ACTU’s training is conducted by way of an online course which includes reading material and a multiple choice test consisting of 30 questions to assess participants’ understanding of the relevant provisions of the Act.

[37] Ms Asmar’s application was signed and dated 29 January 2013 and contained a declaration from the then Junior Vice President of the Branch, Ms Rhonda Barclay, as the Committee of Management Member making the application in accordance with the Act. The declaration by Ms Barclay attested to Ms Asmar having received appropriate training to satisfy the permit qualification training requirement in the Act, namely:

Attachment 1 was a copy of the Certificate of Achievement issued by the ACTU in relation to Ms Asmar’s right of entry test.

[38] The application contained a declaration by Ms Asmar signed and dated 29 January 2013 attesting to having received the training about the rights and responsibilities of a permit holder referred to in the declaration by Ms Barclay.

[39] Mr Katsis’s application was signed and dated 20 February 2013 and contained a declaration from the then President of the Branch, Mr Eden, as the Committee of Management Member making the application in accordance with the Act. The declaration by Mr Eden attested to Mr Katsis having received appropriate training to satisfy the permit qualification training requirement in the Act. The application also contained a signed declaration from Mr Katsis dated 19 February 2013 declaring that he had received right of entry training.

[40] The declaration signed by Mr Eden provided for the training to be further described within the form and while the training was not thereafter further described, a copy of the Certificate of Achievement containing the purported date of training was included with the application. The omission of the further description of training was identified by the Regulatory Compliance Branch as a deficiency in the application and caused the Regulatory Compliance Branch to return the application to the Branch for amendment.

[41] On 22 March 2013 an amended application for an entry permit was lodged by the Branch on behalf of Mr Katsis. The application was signed and dated 12 March 2013 and contained a declaration from Ms Asmar, the Secretary of the Branch, stating that Mr Katsis:

Attachment 1 of that declaration was a copy of the Certificate of Achievement issued to Mr Katsis by the ACTU upon successful completion of the right of entry test.

[42] The application also contained a declaration by Mr Katsis signed and dated 12 March 2013 attesting to having received the training about the rights and responsibilities of a permit holder referred to in the declaration by Ms Asmar.

[43] Mr Mitchell’s application was signed and dated 20 February 2013 and contained a declaration from Mr Eden, the then President of the Branch, attesting to Mr Mitchell having received appropriate training to satisfy the permit qualification training requirement in the Act. The application also contained a signed declaration from Mr Mitchell dated 20 February 2013 declaring that he had received appropriate right of entry training.

[44] The declaration signed by Mr Eden provided for the training to be further described within the form and while the training was not thereafter further described, a copy of a Certificate of Achievement containing the purported date of training was included with the application. The omission of the description of training was identified by the Regulatory Compliance Branch as a deficiency in the application and caused the Regulatory Compliance Branch to return the application to the Branch for amendment.

[45] On 15 March 2013 an amended application for an entry permit was lodged on behalf of Mr Mitchell. The application was signed and dated 12 March 2013 and contained a declaration from Ms Asmar stating that Mr Mitchell:

Attachment 1 of that declaration was a copy of the Certificate of Achievement issued to Mr Mitchell by the ACTU upon successful completion of the right of entry test.

[46] The application also contained a declaration by Mr Mitchell signed and dated 12 March 2013 attesting to having received the training about the rights and responsibilities of a permit holder referred to in the declaration by Ms Asmar.

[47] As a result of the applications, entry permits were issued to each of Ms Asmar, Mr Mitchell and Mr Katsis.

[48] By way of background to the matters, Ms Asmar was elected to the position of Branch Secretary on 21 December 2012. Soon after, Ms Kimberly Kitching was employed as the General Manager of the Branch.

[49] In January 2013, most of the existing employees departed the Branch. As a result, in January 2013 there was only one Branch officer and three employees with an entry permit. Ms Asmar started engaging employees on a temporary basis to replace those who had left. Ms Asmar gave evidence that she was conscious that many of the people she was seeking to recruit as organisers had no training.

[50] In January 2013 Ms Asmar directed the Industrial Assistant Ms Peggy Lee to put in train, as a matter of urgency, the processes for officials to obtain entry permits. Ms Kitching was asked to ensure that Ms Lee completed that ongoing task.

[51] In relation to the officials the subject of this Inquiry, Ms Asmar was at the time of her application the Secretary of the Branch, and remains in that role as at the date of this decision. Mr Katsis was an organiser with the Branch at the time of his application, a position he held from January 2013 until approximately April 2013. He is currently Lead Organiser with the Branch. Mr Mitchell is an industrial organiser with the Branch, a position he has held since 1 February 2013. Mr Mitchell previously worked as an organiser for the HSU from approximately 2000 until approximately 2004.

[52] At the hearing of the matters on 23 April, 4 May and 11 April the following people gave evidence:

[53] Ms Lee commenced employment at the Branch in 2009 as an Administration/Industrial Assistant and continued in that role following Ms Asmar’s election in December 2012. Ms Lee gave evidence that very early in 2013, Ms Asmar asked her to administratively arrange for entry permits to be obtained for organisers.

[54] Ms Lee gave evidence of several conversations she had with Ms Asmar about entry permits and that she subsequently became aware that Ms Asmar had instructed organisers to forward emails they had received from the ACTU containing their course access passwords to Ms Kitching. Ms Lee gave evidence that it was around that time that Ms Asmar kept asking her about the right of entry tests and started to get angry that the tests had not been done. Ms Lee recalls having a conversation with Ms Asmar during which Ms Asmar asked her to do right of entry tests for organisers, although Ms Lee refused at that stage.

[55] Ms Lee went on leave on 13 February 2013, returned to Australia on 6 March 2013 and returned to work shortly after. Ms Lee gave evidence that after returning from leave she was handed a bundle of documents from the Branch receptionist, including entry permit applications, ACTU right of entry test Certificates of Achievement and right of entry test results.

[56] Ms Lee gave evidence that she had a conversation with Ms Kitching during which Ms Kitching told her how she (Ms Kitching) had completed right of entry tests for various organisers. Ms Lee recounted that Ms Kitching became excited that she had achieved a score of 100% in some of the tests she had completed. It was clear to Ms Lee that Ms Kitching was talking about having completed the right of entry tests for the organisers whose forms were in the bundle of documents handed to Ms Lee when she returned from leave. Such organisers included Mr Katsis, Mr Mitchell, Mr Sherriff, Mr McCubbin, Ms Govan, Mr Atkinson and Mr Trajcevski-Uzunov.

[57] During cross-examination, Ms Lee was taken to the parts of her statement in which she states that Ms Kitching completed the tests for the organisers whose permit applications/results were in the bundle of documents handed to her by the Branch receptionist upon her return from leave, which included documents concerning Mr Atkinson. Counsel suggested that Ms Kitching, instead of saying words to the effect that she had completed tests for officials, simply said “I have had this done”, meaning that she organised the officials to complete their tests. Ms Lee gave evidence that she could not remember the precise words spoken during the conversation. During cross-examination Ms Lee confirmed that she was on annual leave from 13 February 2013 to 6 March 2013. As Mr Atkinson’s test was completed on 15 February 2013, it is unlikely that it would have been completed by Ms Lee.

[58] Ms Lee subsequently continued with the administration of the entry permits. Ms Lee gave evidence of the circumstances surrounding and reasons behind her decision to later complete right of entry tests on behalf of Branch President Mr Eden, and an organiser for the Branch, Mr Darryn Rowe.

[59] Mr McCubbin is a former long term member of the Branch and in company with his partner Ms Porter, was a participant of Ms Asmar’s election campaigns in 2009 and 2012. Following Ms Asmar’s election as Secretary in December 2012, Mr McCubbin became a part of the Branch Executive team participating in Executive meetings with Ms Asmar, Ms Kitching and others. He became a paid employee in April 2013.

[60] Mr McCubbin gave evidence that in January 2013 he had a discussion with Ms Asmar during which Ms Asmar told him that Ms Kitching had done her (Ms Asmar’s) right of entry test. Mr McCubbin states that Ms Asmar indicated she was intending on instructing the rest of the staff at the upcoming industrial day that Ms Kitching would be completing the right of entry tests for them.

[61] Mr McCubbin gave evidence that in February 2013 he attended an industrial day at the Branch during which Ms Asmar told the industrial staff that all right of entry permit tests would be done by Ms Kitching.

[62] Mr McCubbin specified a number of people who he testifies did not do their right of entry tests, and for whom Ms Kitching did the tests, including himself, Ms Asmar and Mr Katsis.

[63] Ms Porter is the partner of Mr McCubbin. Ms Porter gave evidence that she attended a social barbeque between January and March 2013 at Ms Asmar’s house. Ms Porter gave evidence that she recalls Ms Asmar stating that she had not at the time completed her right of entry test and was getting Ms Kitching to do her test, and directed Mr McCubbin to do the same. Ms Porter gave evidence of a further conversation between herself, Ms Asmar and Mr McCubbin prior to Mr McCubbin’s employment at the Branch. Ms Porter recalls that during the conversation, Mr McCubbin had asked Ms Asmar about the status of the right of entry permit tests, to which Ms Asmar responded that hers had already been done by Ms Kitching and she had directed Ms Kitching to do Mr McCubbin’s test as well.

[64] Ms Govan was an organiser for the Branch in 2013. Ms Govan gave evidence that at an industrial day at the Branch office in February or March Ms Asmar advised that the organisers would not be required to complete their own right of entry tests because Ms Kitching would be completing tests for them. Ms Govan gave evidence that she did not complete her own right of entry test. Ms Govan further states that she was able to identify with confidence a number of other people who did not do their own right of entry tests, including Ms Asmar. Ms Govan gave evidence that it was common knowledge that Ms Kitching completed tests for others.

[65] Mr Leszczynski is Senior Industrial Coordinator of the Victoria No. 3 Branch of the Health Services Union (the No. 3 Branch). Mr Leszczynski was a Senior Industrial Officer at the No. 1 Branch from November 2012 to March 2013. Mr Leszczynski gave evidence that he had discussions with Ms Kitching on a number of occasions in January 2013 in which Ms Kitching asked him questions in relation to matters pertaining to right of entry. Mr Leszczynski states that upon questioning Ms Kitching, Ms Kitching told him that Ms Asmar was too busy to do her own test and that she was doing it for her.

[66] Mr McGregor is the Secretary of the No. 3 Branch. Mr McGregor states that Ms Kitching acted as a conduit of communication between the Number 1 Branch and the Number 3 Branch during the time when the two branches shared office space. Mr McGregor gave evidence that in early 2013, Ms Kitching and he had a number of conversations on different days concerning right of entry permits. Mr McGregor states that matters discussed included the requirements of the Act relating to right of entry, the ACTU right of entry test and the study required to sit the test.

[67] Mr McGregor recalls that in early 2013 Ms Kitching came into his office and said word to the effect of “Did another one. Got 100% again.” Mr McGregor understood Ms Kitching to be referring to the tests for right of entry permits, due to their previous communication regarding right of entry permits and tests, the timing of the interaction and proximity to the previous conversations, and because Mr McGregor was not aware of any other tests which officials or employees of the No. 1 Branch would be undertaking at the time. Mr McGregor noted that Ms Kitching did not expressly state to him that she had sat, or intended to sit, any right of entry tests.

[68] Ms McIntosh was employed as an organiser at the Branch from 4 March 2013 until 27 February 2014. Ms McIntosh gave evidence that it was common knowledge around the Branch at the time that Ms Kitching completed right of entry tests for staff. Ms McIntosh recalls having discussions with Ms Govan, Mr Atkinson and Mr McCubbin around the topics of Ms Kitching doing her right of entry test, although she maintains that she did her own test.

[69] Ms Flynn was the Assistant Secretary/Treasurer of the Branch during the period relevant to the allegations. Ms Flynn gave evidence that Ms Lee informed her of a conversation she had heard between Ms Asmar and Ms Kitching about right of entry tests, and that Ms Kitching completed a number of tests for organisers of the Branch. Ms Flynn also states that she received a text message from Ms Govan in which Ms Govan named a number of officials of the Branch who she believes had their right of entry tests completed by Ms Kitching.

[70] The officials subject to the Terms of Inquiry each gave evidence that they completed their own right of entry test.

[71] Ms Asmar gave evidence that she did her own right of entry test. Ms Asmar said that she told industrial organisers that they should get their right of entry permits as soon as possible and that Ms Lee would assist them. Ms Asmar denies telling any employee of the Branch to undertake a right of entry test for any Union organiser or Branch officer, including specifically Ms Lee and Ms Kitching.

[72] Mr Katsis gave evidence that during the early stages of his employment with the Branch, he personally sat and undertook a right of entry test, although he does not know the precise date. Mr Katsis states that the test took him more than half an hour and that he did not do the test in 3 minutes, contrary to the ACTU data records.

[73] Mr Mitchell gave evidence that he completed his own right of entry test and gave evidence about the circumstances in which he completed his test. Mr Mitchell gave evidence that he was not aware of anyone doing right of entry tests for anyone else, until the issue was raised at the Royal Commission.

[74] The officials called a number of witnesses to dispute the allegations that Ms Asmar directed Ms Kitching and/or Ms Lee to complete right of entry tests for others and that they did not complete their own tests.

[75] Ms Kitching was employed as the General Manager of the Branch shortly after Ms Asmar was elected in December 2012, however she is no longer employed with the Branch. Ms Kitching gave evidence that she has never undertaken ACTU training or completed a right of entry test for any other person or at all.

[76] Ms Kitching gave evidence that she attended industrial days at the Branch office in February and March 2013 and recalls that while Ms Asmar addressed the industrial staff on a number of topics on each occasion, she did not say that Ms Kitching was going to complete right of entry tests for others on either occasion. Ms Kitching denies that she told Ms Lee or anyone else that she had completed tests for organisers.

[77] Mr Eden is Assistant Secretary of the Branch. At the time of the allegations he was Branch President. He gave evidence that he did his own right of entry test although he cannot recall the exact circumstances of doing the test. He gave evidence that he never had any discussions with Ms Kitching about his entry permit, and that he never heard Ms Asmar issue a direction that any person should complete a right of entry test for or on behalf of another person.

[78] Mr Massa was employed as an area organiser at the Branch on 6 May 2013 but no longer works at the Branch. Mr Massa gave evidence that during his interview Ms Asmar told him that he needed to obtain a right of entry permit in order to fulfil the requirements of his role. Mr Massa gave evidence that he did his own right of entry test.

[79] Mr Lazarevski commenced employment as an organiser at the Branch in April 2013. Mr Lazarevski gave evidence that Ms Asmar informed him of the requirement that a test must be taken in order to gain a right of entry permit. Ms Lazarevski gave evidence that he did his own test.

[80] Mr Atkinson has been employed by the Branch since January 2013 and is currently employed as an organiser for the Branch. Mr Atkinson gave evidence that he did not complete his own right of entry test, however he did receive a right of entry permit. In his statement dated 22 October 2014 Mr Atkinson states that he believes Ms Lee did his test because a few days after he had signed his declaration, Ms Lee had said to him “I completed your test and you got 100%”. At the hearing, Mr Atkinson gave evidence that he does not know who did his test although he assumes it was Ms Lee.

[81] Mr Atkinson gave evidence that he never had any discussions with Ms Asmar or Ms Kitching about right of entry permit tests.

[82] At the hearing of the matters, counsel for the Branch and the officials made submissions in relation to the evidence of each of the witnesses.

[83] Counsel made no adverse comments in relation to Ms Flynn, in particular because Ms Flynn appeared to have based her allegations on conversations she had with others in which they had advised that Ms Kitching completed tests for others, rather than through directly acquired knowledge. Her evidence was consistent with the evidence of what she was told.

[84] Counsel submit that the fact that Ms Flynn had meetings with Ms Govan and Mr McCubbin, who counsel submit are disgruntled former employees and political rivals, should influence the Commission’s assessment of their evidence.

[85] Counsel submit that the Director of the Regulatory Compliance Branch advised that he had a compulsory power to compel people to make statements and give evidence and that this must affect the credibility that the Commission can give to those witnesses, particularly Mr McCubbin and Ms Lee.

[86] Counsel submit that the Commission behaved appropriately by providing an opportunity for witnesses to enable themselves to indicate that they did not wish to incriminate themselves on the basis of any evidence. Counsel submit that the differences between their statements and their evidence are of significance and must be taken into consideration in the Commission’s determination of these matters.

[87] In relation to Ms Lee, counsel submit that the Commission should consider whether Ms Lee is likely, in the circumstances of giving evidence where she may otherwise be compelled to, and being aware of Ms Flynn’s statement, to minimise her own role and elevate the role of Ms Asmar and Ms Kitching, so that she would appear in a better light than others. Counsel further submit the Commission should be careful not to misconstrue Ms Lee’s evidence because of apparent difficulties with the English language. Further, counsel submit that the fact that Ms Lee never refers to the common knowledge in the workplace that Ms Kitching completed tests for others is significant.

[88] In relation to Mr McCubbin, counsel submit that the fact that on two occasions Mr McCubbin has sworn an affidavit or a declaration to say he had completed a right of entry test when in fact he never did one, should be taken into consideration when assessing his credibility. Counsel further submit that Mr McCubbin is a disgruntled former employee who is politically and maliciously motivated and that he is prepared to lie in order to advance his position and hurt his former employer. Counsel submit that Mr McCubbin’s attempts to assist Ms Govan in her actions for wrongful dismissal demonstrate that he is prepared to lie to assist either his friends or to advance himself. Counsel submit that therefore, his evidence that his co-workers advised him that Ms Kitching did their tests should not be given significant weight.

[89] In relation to Ms Porter, counsel submit that she has come to support Mr McCubbin and that she also lacks credibility.

[90] In relation to Ms Govan, counsel point to the observations of Justice O’Sullivan, which were said in relation to Ms Govan’s claim for wrongful dismissal: 7

[91] Counsel submit that it is appropriate for the Commission to view Ms Govan in the same terms.

[92] Counsel submit that Ms Govan has perjured herself twice. Counsel submit that an email sent from Ms Govan to a representative of a workplace on 15 February 2013 at 11.22am in which Ms Govan claims she has a right of entry permit, is fairly indicative of the fact that she did do her own test on that day. Counsel submit that Ms Govan’s assertion that Mr Eden’s test was performed by Ms Kitching is a fairly significant indicator of her failure to be honest.

[93] In relation to Ms McIntosh, counsel note that Ms McIntosh testifies that the allegation that she did Mr Rowley’s test was incorrect and that she merely assisted him with the computer. Counsel submit that these circumstances demonstrate that it is possible for gossip to grow into theory, then into fact and then being so relied upon.

[94] In relation to Mr McGregor, counsel submit that he has had conversations with others in relation to this topic and he would have no reason at all to remember this, so the quality of his evidence is not such that it would be of assistance to the Commission.

[95] In relation to Mr Leszcynski, counsel submit that he is motivated to hurt Ms Kitching due to the allegation made against him that he behaved violently and inappropriately when he was dismissed from the Branch, so little or no reliance should be placed upon his evidence. Further, counsel submit that regard should be had to an extract of the transcript of the Royal Commission, which shows the following exchange between Mr Bornstein and Mr Leszczynski: 8

[96] Counsel submit that Mr Leszczynski’s evidence is inconsistent, as in his statement he contends that in January 2013 Ms Kitching advised him that she had completed Ms Asmar’s right of entry test, but at the Royal Commission states that the first he heard about there being allegations that Ms Kitching or anyone else had done tests for other organisers was the day before he was terminated. When this was put to him, Mr Leszczynski’s response was that Ms Asmar is not an ‘organiser’ so the above exchange was not in relation to Ms Asmar.

[97] In relation to the officials in question, counsel submit that Ms Asmar is a person with a history of proven integrity, and that the only evidence which could reflect on her credibility comes from sources who lack credibility, namely, Mr McCubbin, Ms Porter and Ms Govan, so there is no reason why the Commission should take cognisance of them.

[98] In relation to Mr Katsis, counsel submit that there is unsatisfactory evidence to doubt his sworn assertion that it was he who did his own test.

[99] In relation to Mr Mitchell, counsel submit that there is no doubt that on 5 February 2015 he performed his own test. In relation to why his course is accessed on 15 February, counsel submit that his explanation that he does not believe he accessed his ACTU course on that date should be accepted.

[100] In relation to Ms Kitching, while counsel for the Branch and the officials do not appear for her, counsel submit that they would be concerned about a finding that Ms Kitching acted as the agent for Ms Asmar in terms of doing these tests, because it does not come within the terms of reference of the Commission’s examination of Ms Asmar’s right of entry test.

[101] Evidence was given by both Mr Mann of Invest-e-gate Pty Ltd and Mr Rosalion, Manager of Forensic Technology at KPMG concerning the operation of the right of entry course provided by the ACTU. The ACTU course is hosted on a Learning Management System on a platform known as Moodle. At the time the records were generated, the Moodle software was hosted on a computer at a company called NetSpot. At the time Mr Mann and Mr Rosalion conducted their analysis, the Moodle software was hosted on a computer at a company called Androzic.

[102] Mr Katsis’s ACTU account was among a group of accounts deleted from the ACTU Moodle instance as part of a clean-up process. The ACTU was able to locate the training records for the deleted users from archived data.

[103] The experts conferred with one another and identified areas of common ground. The main issues that emerged were possible time zone discrepancies and issues concerning the overall accuracy of the logs and reports.

[104] In relation to the overall accuracy of the logs and reports, the experts agree as follows:

[105] With respect to the possible timezone discrepancies, the experts agree:

[106] Mr Mann gave evidence that any time extracted from the ACTU records during the period in which daylight savings operated, should be accounted for by adding one hour to that time.

[107] The assessment of the evidence before the Commission requires extreme care. It is clear that the evidence relates to events some time ago, it concerns matters which may not have been considered as significant at the time as it appears now and the consequences of the events have since assumed greater importance. The evidence is a combination of documents, records and oral statements. Various witnesses have been involved in broader conflict. Accounts given by witnesses are inconsistent. The potential consequences of some of the findings are significant.

[108] Various witnesses have been in attendance at the Commission for much of the hearings before me and I have had the advantage of observing them as they have given their evidence from the witness box. Although the questions before me relate to the potential revocation of right of entry permits, I am mindful of the basis of the enquiry that false declarations were made in support of applications. The law is clear on the approach that must be taken in such a case. The standard of proof that I am required to apply is the balance of probabilities. However, that standard must be applied carefully in view of the subject matter and consequences of the factual enquiry. As Dixon J (as he then was) said in Briginshaw v Briginshaw:  9

[109] Having regard to the approach I am required to apply, my observations of the witnesses and the nature of their evidence I note the following general points regarding their evidence. I also note that the witnesses called by the Branch were not subject to any cross-examination.

[110] Ms Flynn presented as a reliable witness. She conveyed information regarding statements and reports made to her by others in a manner which is consistent with the evidence the other people subsequently gave. As her evidence was indirect it does not establish the facts that she was told of, but provides a reliable set of information regarding the representations people made to her at earlier times leading to her initiation of the complaint to the Director.

[111] Ms Lee presented as an honest and conscientious witness. She was clearly concerned about the integrity of the practices she believed had occurred and appeared intent on providing a full and honest account of all of the relevant events and conversations. I do not accept that the veracity of her evidence should be called into question by alleged factional partisanship or poor familiarity with the English language. Ms Lee presented as a competent and reliable professional with a high level of personal integrity. She displayed strength under the pressure of cross-examination to provide truthful answers to questions. I consider that Ms Lee’s evidence provides key insights into the relevant activities including her evidence about her own activities and the representations made to her by Ms Kitching and Ms Asmar. The fact that her admissions were against her interests further adds to the credibility of her evidence.

[112] Mr Rob McCubbin was involved far more in factional politics— being a key assistant and supporter of Ms Asmar in two HSU election campaigns after being approached by Ms Asmar to support her. He voluntarily provided his support and assistance and was subsequently employed by the Branch by Ms Amar in a senior role. He fell out with Ms Asmar over revelations that Ms Asmar had appointed Ms Kitching as General Manager as part of an agreement over HSU electoral funding provided by Ms Kitching’s husband and in particular the lack of transparency concerning that arrangement. It is likely that the fact that Ms Kitching’s senior role limited Mr McCubbin’s relative seniority and influence was a component of his disapproval.

[113] Clearly Mr McCubbin became extremely embittered and disillusioned with Ms Asmar. Mr McCubbin presented as a genuine grass roots union official with a high level of personal integrity. He was very well regarded by others at the Branch, even after he resigned from the Branch. Some attempted to talk him out of his decision. He admitted to obtaining his right of entry permit without having personally sat the ACTU test. Rather than casting doubt on his credibility I consider that this adds to it.

[114] I have approached Mr McCubbin’s evidence with some caution however I do not consider that Mr McCubbin gave evidence about statements made by Ms Asmar and Ms Kitching in order to falsely accuse them and extract retribution. On the relevant issues I regard his evidence as honest and reliable. I do not consider that he would fabricate evidence or that he was motivated to lie by malicious intent. He appeared willing to reveal his beliefs as to the activities of the Branch of which he disapproved and he clearly believes that appropriate attention should be given to inappropriate activities. Other allegations he has apparently made about location tracking devices are more difficult to independently verify, but when tested under cross-examination, he demonstrated strong conviction to the accuracy of his statements.

[115] Ms Porter is Ms McCubbin’s partner and carer. She presented as an honest witness and a person of high integrity. She knows Ms Asmar personally and had a similar history as Mr McCubbin of being a former friend and supporter and now a somewhat embittered and disillusioned acquaintance. I have considered her evidence carefully because of this. She gave direct evidence of conversations with Ms Asmar and comments made by her in a way that appeared truthful and reliable. I do not believe that her evidence was fabricated or should be discounted because of the falling out between her partner and Ms Asmar.

[116] Ms Govan is also a former close acquaintance of Ms Asmar and had a falling out with her leading to the termination of her employment. She unsuccessfully took proceedings against Ms Asmar and the Branch in relation to that termination. Ms Govan appeared to be very keen to accuse Ms Asmar of wrongdoing. I consider that her approach may have led to an exaggerated sense of wrongdoing by Ms Asmar and I have taken this into account in assessing her evidence. Much of her evidence was in the nature of common understandings through various discussions. The indirect nature of the evidence also bears upon its reliability.

[117] In cross-examination Ms Govan agreed that she sent an email to an employer seeking right of entry before she obtained her right of entry permit. She used a standard form communication that, falsely in her case, asserted the possession of a permit. Counsel submitted that this established the unreliability of her evidence. Ms Govan also admitted not having sat the ACTU test herself but obtaining a permit in any event. In all of the circumstances I propose to regard Ms Govan’s evidence with caution. However I am not of the view that her evidence on her understanding of practices at the Branch should be disregarded. I gained the impression from her evidence that she was truthfully asserting that inappropriate practices had occurred on the basis of her clear beliefs.

[118] Mr Leszczynski and Mr McGregor were indirectly involved in the affairs of the Branch. They presented as dispassionate observers of events and parties to conversations. I regard their evidence as truthful and reliable. I also regard Ms McIntosh as a truthful witness although her evidence was indirect and possibly influenced by the comments of others with a greater axe to bear.

[119] Mr Eden’s evidence was vague and inconsistent. I do not regard him as being untruthful, but the inconsistencies in his account affect its reliability. Mr Atkinson’s evidence is of a similar nature. I considered that he attempted to give honest evidence of his knowledge but he did not know of a number of key events and made assumptions about matters that are inherently unlikely. I accept his evidence that he did not do his own test and his account of the personal conflict within the Branch that emerged in the course of 2013.

[120] Mr Mitchell appeared to be an honest witness, as did Mr Massa and Mr Lazarevski.

[121] Mr Katsis did not appear to be a reliable witness. He was vague about many of the events that occurred but appeared keen to fill the gaps with the most favourable construction to his case even when his accounts appeared unlikely.

[122] Ms Asmar made strong denials of any knowledge, advice, direction or involvement in the practice of ACTU tests being performed on behalf of the relevant applicants. She appeared eager to assert her innocence in very strong terms. She was not subject to cross-examination. Despite asking for phone records of relevant days very early in the proceedings Ms Asmar, through her counsel, asserted very late in the proceedings that they could not be obtained because she had a pre-paid phone plan at the time. It was not explained why this was not disclosed much earlier. Having regard to her evidence and her demeanour giving evidence I am unsure that her evidence can be regarded as reliable.

[123] A similar position arises with respect to Ms Kitching, the former General Manager of the Branch. Her denials were short and firm. They extended to strong denials of conversations and knowledge that appeared clearly established by other witnesses. She was not subject to cross-examination. Her evidence went into great detail about her movements on 15 February 2013. I found the detail of her memory of the day well after the event and the firmness of her statements somewhat implausible. Despite obvious gaps in her account of her activities she maintained that her evidence should establish that her involvement in the performance of tests was impossible. I am not sure that her evidence can be regarded as reliable.

[124] The evidence before me concerns allegedly false declarations that applicants for right of entry permits have successfully completed online tests on right of entry obligations conducted by the ACTU. The question is whether the applicants themselves completed the tests or whether the tests were conducted by someone else. This involves the assessment of evidence on a number of issues that relate to the overall questions. Were any tests performed by others? If so, who were they performed by? If the tests were performed by others who had knowledge and involvement and who authorised this to occur? Did Ms Asmar do her own test on 25 January 2013? Did Mr Katsis do his own test on 15 February 2013? Did Ms Kitching access Mr Mitchell’s ACTU course on 15 February 2013? I propose to consider the evidence in relation to each issue that logically arises from the enquiry.

Were any ACTU right of entry tests performed by persons other than the officials?

[125] As questions concerning Ms Asmar’s right of entry test form part of the Terms of Inquiry, evidence concerning Ms Asmar’s right of entry test will be examined in more detail below. In summary, however, Ms Asmar gave evidence that she completed her own right of entry test on 25 January 2013.

[126] Ms Govan, Mr McCubbin and Ms Porter all gave evidence that Ms Asmar had told them that Ms Kitching completed her right of entry test. Ms Asmar denies these conversations.

[127] Mr Leszczynski gave evidence of a conversation he had with Ms Kitching in which Ms Kitching advised him that she had completed Ms Asmar’s right of entry test. Ms Kitching denies completing Ms Asmar’s test and denies telling anyone that she completed Ms Asmar’s test.

[128] It appears evident from ACTU records that a number of tests for officials of the Branch were completed on 15 February 2013. The ACTU data records show the following in relation to ACTU course access by officials of the Branch on 15 February 2013:

[129] Mr Atkinson, Ms Govan and Mr McCubbin each gave evidence that they did not complete their own right of entry test. As evidenced by the ACTU records, these were the first three tests completed by or on behalf of Branch officials on 15 February 2013.

[130] There is conflicting evidence about whether or not the fourth ACTU account for Branch officials on 15 February was accessed and a test was completed by someone other than the account holder, Mr Sherriff.

[131] The ACTU data indicates that access to Mr Sherriff’s ACTU account commenced 10 minutes after access to Mr McCubbin’s account ceased.

[132] Mr Sherriff provided a statutory declaration to the Regulatory Compliance Branch dated 12 September 2013 in which he declares that he completed his own right of entry test.

[133] Mr Sherriff provided a statement dated 18 August 2014 in which he states that he had undertaken the ACTU online test. Mr Sherriff states that he does not know how long it took him to do the test. Mr Sherriff states that he sent an email to Ms Kitching at 2.57pm in order to book a training room to complete the right of entry test, and that he recalls doing his test shortly after sending that email. A copy of the email was attached to his statement. It is evident that the email attached a letter which contained his ACTU course password.

[134] Solicitors for the Branch and Mr Sherriff provided Mr Sherriff’s diary records for 15 February 2013, which show an entry for 3.00pm to 3.30pm on 15 February 2013 entitled 'Franking Letters' in the 'Printing Room'. After the Royal Commission interim report was issued Mr Sherriff consented to the revocation of his permit.

[135] Ms Govan gave evidence that Mr Sherriff did not do his own right of entry test, and that she had openly discussed the fact that Ms Kitching completed their right of entry tests with Mr Sherriff, Mr Katsis and Mr Trajcevski-Uzunov, who had each commenced at the Branch at the same time she had.

[136] Ms Lee gave evidence that Mr Sherriff’s right of entry documents were in the bundle of documents handed to her by the Branch receptionist, and that Ms Kitching had told her that she had completed the right of entry tests for those people. Mr Lesczynski gave evidence which corroborated Ms Lee’s evidence that Mr Sherriff’s application was included in the bundle of documents handed to her by the Branch receptionist.

[137] Ms Lesczynski gave evidence that in his view, Mr Sherriff was inexperienced and did not have the requisite skills to do the job properly. It would appear inherently unlikely that an inexperienced newly appointed organiser could have completed the test in 2 minutes and 31 seconds.

[138] Mr Trajcevski-Uzunov’s ACTU account was the fifth Branch account accessed on that day. His account was accessed at 3.54pm, 41 minutes after access to Mr Sherriff’s account concluded.

[139] Mr Trajcevski-Uzunov’s evidence in a statement dated 17 September 2014 is that he completed an online test conducted by the ACTU on or about 15 February 2013, although he cannot recall the exact date or time.

[140] Mr McCubbin, Ms Govan and Ms Lee all gave evidence to the effect that Ms Kitching completed Mr Trajcevski-Uzunov’s test. Ms Govan testified Mr Trajcevski-Uzunov accompanied her to a meeting at Monash Health on 15 February 2013 which took place between 3pm and 4pm, and that following the meeting she drove Mr Trajcevski-Uzunov back to the Branch office. Ms Govan also produced copies of print-outs from her electronic diary with the meeting at Monash Health documented.

[141] Mr Trajcevski-Uzunov’s telephone records show that a telephone call from Mr Trajcevski-Uzunov’s phone was registered by the Moorabbin telephone tower at 2.54pm on 15 February 2013. As Moorabbin is an adjoining suburb to Cheltenham, where that meeting at Monash Health took place, this is consistent with Ms Govan’s evidence that Mr Trajcevski-Uzunov accompanied her to the meeting at 3pm.

[142] One minute after access to Mr Trajcevski-Uzunov’s account concluded, access to Mr Katsis’ account commenced. As questions concerning Mr Katsis’ right of entry test form part of the Terms of Inquiry, evidence concerning Mr Katsis will be outlined in more detail below. In summary, Mr Katsis gave evidence that he did his own right of entry test and gave evidence of the circumstances in which that was completed. Mr Katsis cannot recall the precise date or time he completed his test.

[143] Mr Katsis’ telephone records show that a call was made in the Malvern area at 3.48pm on 15 February 2013. Mr Katsis submits that even if he was the person who was using his phone on that day, he could have made it back to the Branch in time to log on to his ACTU account at 3.59pm. In any case, counsel for Mr Katsis submit that the ACTU data may be unreliable.

[144] Mr McCubbin, Ms Lee and Ms Govan all gave evidence that they believed that Ms Kitching sat Mr Katsis’ test. Ms Govan gave evidence she had a conversation with Mr Katsis, Mr Trajcevski-Uzunov and Mr Sherriff during which they spoke about the fact that Ms Kitching had completed their right of entry test.

[145] Mr Mitchell’s ACTU account was also accessed on 15 February 2013, however his test was not completed on that day. Mr Mitchell’s evidence will be outlined in more detail below. In summary, Mr Mitchell gave evidence that he completed his own right of entry test and provided details of the circumstances in which he did so.

[146] I note that ACTU accounts were accessed for seven Branch officials on the same day, that no two users were accessing the ACTU system at any one time on 15 February 2013 and the fact the time taken for completion of the test became progressively shorter.

[147] Mr Mann and Mr Rosalion gave evidence that they are unable to state with certainty that the ACTU data is reliable as they have not had access to the source data in order to test that.

[148] Mr McCubbin gave evidence that he is sure Mr Mitchell did his own tests because Mr Mitchell told him that he did.

[149] Ms Lee gave evidence that documents relating to Mr Mitchell’s right of entry were in the bundle of documents handed to her by the Branch receptionist upon her return from leave and in respect of which Ms Kitching advised her that she completed the tests.

[150] There is conflicting evidence in relation to whether Mr Eden and Mr Rowe’s tests were completed by someone other than themselves.

[151] The ACTU data indicates that access to Mr Eden’s ACTU account commenced at 9.51am on 26 March 2013, and that he successfully completed his test in a time of 21 minutes and 49 seconds. At 10.15am, the ACTU right of entry system automatically generated an email to Mr Eden’s account attaching his Certificate of Achievement. Documentary evidence shows that Mr Eden’s right of entry application was electronically submitted to the Commission at 10.39am on 26 March 2013.

[152] Mr Eden gave evidence that he completed the right of entry test himself. Mr Eden has given conflicting evidence in relation to when he completed his test.

[153] On 12 September 2013 Mr Eden made a statutory declaration in which he declared that he completed his right of entry test on 26 March 2013. On 26 November 2013 solicitors for the Branch and Mr Eden sent a letter to the Regulatory Compliance Branch in which it was stated that Mr Eden recalls driving to the Branch from Bendigo on the afternoon of 26 March 2013 and completing his test when he returned to the Branch office with Mr Rowe. Mr Eden repeated this account on 19 December 2013 when interviewed by representatives of the Regulatory Compliance Branch in the presence of his solicitor.

[154] In statements dated 18 August 2014 and 15 September 2014 Mr Eden states that because so much time has passed, he cannot recall what date or time of day he did his right of entry test. At the hearing, Mr Eden explained that the discrepancies in his evidence are due to the lapse in time.

[155] Ms Lee gave evidence that she completed Mr Eden’s right of entry test because she felt pressure from Ms Asmar to do so. Mr McCubbin and Ms Govan both gave evidence that Mr Eden did not do his own right of entry test. Mr Eden has consented to the revocation of his permit after the Royal Commission issued its Interim Report.

[156] ACTU data in relation to Mr Rowe demonstrates that Mr Rowe’s ACTU account was accessed at 10.07pm on 20 March 2013. The test was commenced at 10.08pm and was completed in a time of 24 minutes and 13 seconds. At 10.34pm the ACTU system automatically generated an email to Mr Rowe’s account attaching his Certificate of Achievement. Mr Rowe’s application was submitted to the Commission at 9.21am on 21 March 2013.

[157] Solicitors for the Branch and Mr Rowe provided correspondence to the Regulatory Compliance Branch dated 26 November 2013 in which it was stated that Mr Rowe does not agree that he did his test on 20 March 2013. It was further stated that Mr Rowe recalls that both he and Mr Eden attended a meeting at 2.00pm in Bendigo on 26 March 2013 and following the conclusion of that meeting, they both drove to Melbourne to undertake the test.

[158] In a statement of Mr Rowe dated 18 August 2014 Mr Rowe gave evidence that he undertook his right of entry test on 20 March 2013 at the Majestic Motel in Horsham where he shared a room with Mr Eden.

[159] Ms Lee gave evidence that she completed Mr Rowe’s test from her home computer in the evening of 20 March 2013 and provided documentary evidence of her Internet Protocol (IP) address which matched that recorded in the ACTU data in relation to Mr Rowe’s test. After the release of the Interim Report of the Royal Commission Mr Rowe consented to the revocation of his permit

[160] In addition to those mentioned above, McCubbin gave evidence that the following people did not do their own right of entry test:

[161] At the hearing of the matter, Mr Massa and Mr Lazarevski gave evidence that they completed their own tests. Counsel for the Branch advised that Ms Saunderson and Mr Hassan are no longer with the Branch and they do not have an address to contact either of them.

[162] Mr Kitching denied doing any ACTU right of entry test. Ms Asmar denies telling Ms Kitching to perform ACTU right of entry tests.

[163] In relation to Mr Rowley’s test, Ms Govan gave evidence that Ms McIntosh assisted Mr Rowley to do his right of entry test. Ms Flynn gave evidence that Mr Rowley told her that Ms McIntosh had completed his test. Ms McIntosh testified that she did not give Mr Rowley the answers to his test or do his test for him, and that she merely assisted him with his computer.

[164] On the basis of the evidence before me I find that ACTU right of entry tests were performed by persons other than the permit holders regarding the applications with respect to some or all of the following people:

[165] It is likely that ACTU tests were performed for other officials by persons other than the officials. I make this finding based on the ACTU records and the evidence of various witnesses. The admission by some applicants that they did not do their own tests, the evidence of various witnesses of open discussions of tests being performed by others and the test records compels the finding I have made. I do not accept the evidence of Ms Asmar and Ms Kitching effectively denying all knowledge and involvement in the practice. Their evidence is inherently unlikely.

If tests were performed by others, who were they performed by?

[166] A number of witnesses gave evidence that Ms Kitching performed right of entry tests for others on 15 February 2013 and said that she had performed others on other dates.

[167] Mr McGregor gave evidence of conversations with Ms Kitching in which Ms Kitching asked him questions about right of entry matters, and said words to the effect of “Did another one. Got 100 per cent again” which he understood to be in relation to right of entry tests.

[168] Mr Leszczynski gave evidence that Ms Kitching told him that she had completed Ms Asmar’s right of entry test for her, because Ms Asmar was too busy.

[169] Ms Flynn and Mr McCubbin gave evidence that Ms Kitching completed tests for a number of organisers.

[170] Ms Porter gave evidence that Ms Asmar had told her and Mr McCubbin that Ms Kitching had completed her right of entry test and that she directed Ms Kitching to do the same for Mr McCubbin.

[171] Ms McIntosh and Ms Govan both gave evidence that it was common knowledge around that Branch that Ms Kitching completed tests for others. Ms McIntosh also gave evidence that Mr Hassan had the answers to the test written in a notebook.

[172] Ms Govan gave evidence that the fact that Ms Kitching completed tests for others was openly discussed between her, Mr Sherriff, Mr Katsis and Mr Trajcevski-Uzunov, who all started at the same time she did. Ms Govan further states that she recalls Ms Asmar boasting that Ms Kitching got around 99 or 100 per cent when she completed Ms Asmar’s right of entry test. This is denied by both Ms Asmar and Ms Kitching.

[173] Ms Lee gave evidence that she completed Mr Rowe’s and Mr Eden’s right of entry test. Ms Lee gave further details about her completion of Mr Rowe’s right of entry test and provided evidence which demonstrated that the IP address recorded in the ACTU data for Mr Rowe’s test is Ms Lee’s home IP address. Ms Lee gave evidence that after she completed the tests for Mr Rowe and Mr Eden, she felt so bad that she did not do tests for anyone else.

[174] Ms Lee gave evidence that Ms Asmar asked the organisers to forward their ACTU emails with course passwords to Ms Kitching. Ms Lee gave evidence that ordinarily, the only people who had access to ACTU login details were the individual ACTU account holder and Ms Asmar, who was generally copied into the email from the ACTU. There is documentary evidence that between 8 February 2013 and 15 February 2013, Mr Atkinson, Ms Govan, Ms Porter (on behalf of Mr McCubbin), Mr Sherriff and Mr Trajcevski-Uzunov all forwarded an email containing their username and password for the ACTU online right of entry training course to Ms Kitching.

[175] Ms Lee gave evidence that Ms Kitching had told her that she had completed the right of entry tests for those organisers whose right of entry applications and/or test results were in the bundle of documents handed to her by the Branch receptionist upon her return from leave. Those people included Mr Sherriff, Mr Katsis, Mr McCubbin, Ms Govan, Mr Trajcevski-Uzunov, Mr Atkinson and Mr Mitchell.

[176] Mr Atkinson, in a statement dated 22 October 2014 states that a few days after he signed the declaration contained in his right of entry application, Ms Lee said as an aside “I completed your test and you got 100%.” In his evidence at the Commission, Mr Atkinson said he is not 100 per cent sure who completed his test, but he assumes it was Ms Lee given that she gave him the right of entry application to sign.

[177] Ms Lee gave evidence that she did not complete Mr Atkinson’s test, and that she was on annual leave in Hong Kong from 13 February 2013 to 6 March 2013. Mr Atkinson’s test was taken on 15 February 2013.

[178] Ms Kitching gave evidence that she has never undertaken ACTU training or completed a right of entry test for any other person or at all. Ms Kitching provided documentary evidence concerning her whereabouts on 15 February 2013.

[179] Ms Kitching states that she was at work at the Branch office located in Park Street, South Melbourne for part of the morning on 15 February 2013. Mr Kitching states that she has seen a Citylink toll account record which says the Union car she customarily uses was tolled at the Bolte Bridge at 7.54am, which is consistent with her account that she was travelling to the office at that time.

[180] Ms Kitching states that she spent some time at a café before going to work and recalls speaking to various people on the telephone while she was at the café. Ms Kitching has been unable to obtain her telephone records from Telstra, as the plan for her account is such that the ordinary monthly invoices issued to her do not record particulars of individual incoming and outgoing calls. Ms Kitching states that she maintains her own mobile phone and does not use any mobile phone issued by the union.

[181] Ms Kitching states that after she left the café, she withdrew some cash from a nearby ATM. Ms Kitching produced the ATM withdraw receipt which records a time of 9.42am.

[182] Ms Kitching states that she then went to the office. As far as she is aware, there is no security system record of her using her security pass to open any locked doors to enter the office or move within it. Ms Kitching states that she was in the office from shortly before 10am until after 1:30pm.

[183] Ms Kitching produced a record of Mr Atkinson’s mobile telephone records which demonstrate that he was making a call to Ms Kitching’s phone at 10.08 which lasted for approximately 9 minutes. Ms Kitching also produced a file note of the conversation she had with Mr Atkinson, which she states was about an industrial problem which had arisen at Barwon Health. Mr Atkinson gave evidence that he made a telephone call to Ms Kitching at that time.

[184] Ms Kitching gave evidence that following Mr Atkinson’s phone call she spoke with various representatives of Barwon Health. She estimates that she was on the phone until after 10.30am.

[185] ACTU records demonstrate that during the times mentioned about, Mr Atkinson’s course was accessed between 10.02am and 10.21am, with the test taking approximately 9 minutes. Ms Govan’s account was accessed between 10.22am and 10.35am, with the test being completed in 9 minutes and 9 seconds.

[186] Ms Kitching gave evidence that apart from dealing with the Barwon Health matter, between 10am and lunchtime she completed a number of other tasks. Ms Kitching recalls leaving the office at 1.30pm to purchase a gift for her mother. Ms Kitching states that the bank informed her that the transaction took place at 1.54pm.

[187] Ms Kitching states that she then went to a store to purchase milk at the request of Ms Georgiev, the Finance Officer. Ms Kitching produced a receipt which shows the transaction occurred at 1.57pm.

[188] Ms Kitching states that she had arranged to have lunch at a restaurant on Spring Street in Melbourne and departed sometime after 2pm. Ms Kitching estimates that she arrived at the restaurant at about 2.15pm or 2.20pm. Ms Kitching states that as she was celebrating her birthday which was the following day, she spent a significant amount of time at the restaurant. Ms Kitching states that she believes she returned to the office shortly before 3.43pm, as she has seen a record of an email she sent at that time and recalls that by the time she returned to the office, there was only about an hour or so of the usual working day remaining.

[189] ACTU records show that access to accounts of Branch officials during the above timeframe include between 2.55pm and 3.00pm and between 3.10pm and 3.13pm.

[190] Ms Kitching states that after returning to the office shortly before 3.43pm, she left the office after 7pm that day.

[191] ACTU records demonstrate that during that period, ACTU accounts of Branch officials were accessed between 3.54pm and 3.58pm, 3.59pm and 4.02pm, and 4.18pm and 4.19pm.

[192] Ms Asmar provided her telephone, email and diary records for 15 February 2013. The diary entries are as follows:

[193] The only email record produced for the day was an email which was sent at 10.47pm. Ms Asmar’s telephone records show that calls were recorded by the following phone towers at the following times:

[194] Following that, calls were made during business hours in Nunawading, Donvale and Balwyn North.

[195] The consideration of this question requires the resolution of conflicting evidence. The nature of the conflict requires a consideration of the credibility of the witnesses who gave conflicting accounts.

[196] Six tests were completed on 15 February 2013 from the Branch office. Some or all of them were completed by persons other than the relevant officials in whose names the tests were performed. Ms Lee was overseas at the time. Ms Asmar was out of the office for much of the day. There appears to be no person who may have performed the tests other than Ms Kitching. On the totality of the evidence I find that Ms Kitching performed these tests. Ms Kitching’s denials of knowledge and involvement cannot be accepted.

[197] Mr Rowe’s test was completed on 20 March. I find on the evidence that it was completed by Ms Lee. Mr Eden’s test was completed on 26 March. I find on the evidence that it was completed by Ms Lee.

[198] I deal with Ms Asmar’s test below.

If tests were performed by others, who authorised or had knowledge of the practice?

[199] A number of witnesses gave evidence that Ms Asmar authorised Ms Kitching to complete right of entry tests on behalf of others.

[200] In relation to Mr Eden and Mr Rowe’s test, Ms Lee gave evidence that Ms Asmar had directly asked her to do the tests and appeared angry when they had not been completed. Ms Lee recalls that Ms Asmar and Ms Kitching asked her every couple of days about the tests.

[201] In relation to other officials, Ms Lee gave evidence that she became aware that Ms Asmar asked the organisers to forward the emails they received from the ACTU containing their course passwords to Ms Kitching.

[202] Ms Porter gave evidence of two conversations with Ms Asmar in which she recalls Ms Asmar advising her that she had directed Ms Kitching to complete Ms Asmar and Mr McCubbin’s right of entry test.

[203] Ms Govan gave evidence that she was present at an industrial day in February or March 2013 at which Ms Asmar told all present that Ms Kitching would be completing the right of entry test for them. It is her understanding that the reason Ms Asmar arranged for Ms Kitching to do the tests was because of the heavy workload of the organisers.

[204] Mr McCubbin gave evidence that in January 2013 he had a discussion with Ms Asmar during which Ms Asmar told him that she was going to instruct the rest of the staff at the industrial day that Ms Kitching would be doing right of entry tests for officials. Mr McCubbin further gave evidence that he attended an industrial day in February 2013 at which Ms Asmar advised the industrial staff that all right of entry tests would be completed by Ms Kitching.

[205] Ms Lee gave evidence that Ms Asmar asked the organisers to forward their ACTU emails with course passwords to Ms Kitching. Ms Lee gave evidence that ordinarily, the only people who had access to ACTU login details were the individual ACTU account holder and Ms Asmar, who was generally copied into the email from the ACTU. There is documentary evidence that between 8 February 2013 and 15 February 2013, Mr Atkinson, Ms Govan, Ms Porter (on behalf of Mr McCubbin), Mr Sherriff and Mr Trajcevski-Uzunov all forwarded an email containing their username and password for the ACTU online right of entry training course to Ms Kitching.

[206] Ms Kitching gave evidence that she attended industrial days at the Branch office in February and March 2013. Ms Kitching recalls that Ms Asmar addressed the staff on a number of topics on each occasion and did not say that Ms Kitching was going to do organisers’ right of entry tests on either occasion.

[207] Ms Asmar gave evidence that she did not tell any employee of the Branch to undertake a right of entry test for any Union organiser or Branch officer. She said that in February and March 2013 the industrial days were on 25 February and 18 March 2013, which is after the tests for a number of officials had been completed.

[208] Mr Massa and Mr Lazarevski gave evidence Ms Asmar had advised them that they were required to sit a right of entry test.

[209] I have found that Ms Kitching and Ms Lee performed ACTU tests for others despite the denials of Ms Kitching. Ms Kitching was the most senior employee of the Branch at the time and had a close working relationship with Ms Asmar. There is a body of evidence of Ms Asmar stating that Ms Kitching would be doing the tests on behalf of officials. Both Ms Asmar and Ms Kitching strongly deny such statements. I prefer the accounts of those who gave evidence of the statements. It is inherently unlikely that Ms Kitching would do the tests without the knowledge and authorisation of Ms Asmar. I do not accept their denials as being truthful or reliable. I find on the evidence that the performance of ACTU tests by Ms Kitching and Ms Lee was with the knowledge and authorisation of Ms Asmar.

Who undertook the test declared to be conducted by Ms Asmar?

[210] The ACTU data indicates that access to Ms Asmar’s ACTU account commenced at AEDT 1.08pm on 25 January 2013. The data indicates that the test was commenced at AEDT 1.51pm and concluded at AEDT 2.44pm in a time of 52 minutes and 42 seconds, with a score of 30 out of 30. The data record shows that the user logged out of the course at AEDT 2.45pm after accessing the Certificate of Achievement.

[211] Ms Asmar gave evidence that she was the person who completed her ACTU right of entry training and online test on 25 January 2013, and that accordingly, the contents of her declaration which formed part of her entry permit application are true and correct. Ms Asmar states that to the best of her recollection, she answered all of the questions in the right of entry test correctly. Ms Asmar states that she said to a number of people in the office that she got 100 per cent in the test.

[212] Ms Asmar denies the allegation that she boasted that Ms Kitching completed her test and denies giving a direction to Ms Kitching or Ms Lee to complete right of entry tests for herself or for others, and denies telling others that she was going to do so.

[213] In terms of documentary evidence, the Regulatory Compliance Branch made a number of requests for the mobile telephone records of Ms Asmar for 25 January 2013 during the course of its inquiries. The records were not provided to the Regulatory Compliance Branch. On 3 March 2015 I directed that Ms Asmar produce her phone records for 25 January 2013. At the hearing on 23 April 2015 counsel for Ms Asmar advised that Ms Asmar was using a prepaid phone and, accordingly, there are no records available for production. Ms Asmar did not address this matter in her evidence.

[214] Ms Kitching denies the allegation that she completed Ms Asmar’s right of entry test. Ms Kitching denies telling Ms Lee or anyone that she had completed right of entry tests for others. Ms Kitching gave evidence that she never told anybody that she received the percentage of 100 per cent or otherwise in any tests.

[215] A number of witnesses provided evidence that it was common knowledge around the Branch that Ms Kitching completed right of entry tests for others. Ms McIntosh gave evidence as such, and recalls having conversations with a number of officials in the Branch about it.

[216] Ms Lee gave evidence that Ms Kitching had directly told her that she had completed right of entry tests on behalf of others, although Ms Lee does not have direct knowledge of whether or not that included Ms Asmar’s test.

[217] A number or witnesses provided evidence specifically in relation to Ms Asmar’s test. Ms Govan gave evidence that it was common knowledge that Ms Kitching completed right of entry tests for organisers, and that she was able to state with confidence that Ms Asmar did not do her own test. Ms Govan states that Ms Asmar boasted that Ms Kitching got around 99 or 100 per cent when Ms Kitching completed Ms Asmar’s test.

[218] Mr McCubbin gave evidence of a discussion he had with Ms Asmar in about January 2013 during which Ms Asmar told him that Ms Kitching had done her (Ms Asmar’s) right of entry test.

[219] Ms Porter gave evidence of a conversation she had with Ms Asmar between January and March 2013 during which Ms Asmar advised that she was getting Ms Kitching to do her test. Ms Porter gave evidence of a conversation which later occurred in Ms Asmar’s office between her and Mr McCubbin during which Ms Asmar stated that Ms Kitching had completed her test.

[220] Mr McGregor and Mr Leszczynski gave evidence of discussions they had with Ms Kitching concerning the topic of right of entry, during which they formed the impression that Ms Kitching had completed right of entry tests. Mr McGregor recalls a specific interaction with Ms Kitching in early 2013 during which Ms Kitching said words to the effect of “Did another one. Got 100% again.” Mr McGregor understood that she was indicating that she had sat and completed an online right of entry test herself and achieved a score of 100%.

[221] Mr Leszczynski recalls that during one of the discussions with Ms Kitching, Ms Kitching advised him that Ms Asmar was too busy to do her own right of entry test and that Ms Kitching was doing it for her.

[222] Ms Flynn in her evidence refers to conversations she had with others in which they indicated Ms Kitching completed tests for others. However, Ms Flynn did not provide direct evidence about Ms Asmar’s test.

[223] The Director’s report noted that the inquiry by the Regulatory Compliance Branch identified sufficient evidence on balance to substantiate the following:

[224] As a result of the inquiries conducted into the issuing of Ms Asmar’s entry permit, the Director wrote to Ms Asmar on 24 March 2014 advising of his intention to make the following finding:

[225] The findings in relation to Ms Asmar set out in the Interim Report of the Royal Commission are as follows:

[226] Only Ms Asmar and Ms Kitching know whether they performed Ms Asmar’s test. They both state that Ms Asmar did the test and that Ms Kitching did not. However there is evidence that both Ms Asmar and Ms Kitching told others to the contrary at the time. In Ms Asmar’s case it appears to have been in the context of encouraging others to facilitate a similar practice with respect to their own tests, which eventuated with respect to a number of officials. In Ms Kitching’s case the statements appear to be in the context of office banter, a sense of achievement and the context of Ms Asmar’s busy work schedule.

[227] I accept the evidence that both Ms Asmar and Ms Kitching made comments to others near the time of the test inconsistent with their evidence before me and the Royal Commission. In particular I rely on the evidence of Ms Porter and Mr Leszczynski. In my view it is highly unlikely that the comments would have been made at or around the time of the tests if they were not true. There was no need for Ms Asmar to state that Ms Kitching had performed her test in order to direct Ms Kitching to perform it for others. There was no need for Ms Kitching to boast about the result of performing Ms Asmar’s test, or to state that she did it because Ms Asmar was too busy, if Ms Kitching had not in fact done the test. Ms Kitching’s and Ms Asmar’s evidence has been found to be unreliable and untruthful in other respects. On all of the evidence I find that it is likely that Ms Kitching performed the test on 25 January 2013 on behalf of Ms Asmar.

Who undertook the test declared to be conducted by Mr Katsis?

[228] The ACTU data records indicate that Mr Katsis’ ACTU account was accessed on 15 February 2013 between 3.59pm and 4.02pm AEDT and that the test was completed in 2 minutes with a pass rate of 80 per cent. Mr Katsis was sent an automated email with his Certificate of Achievement which appears to have been received at 4:03pm AEDT.

[229] Mr Katsis gave evidence that during the early stages of his employment as an organiser (which commenced in late January 2013) he personally sat and undertook a right of entry test. In a letter from Mr Mr Katsis’ solicitors to the Director during the inquiry by the Regulatory Compliance Branch it was advised that Mr Katsis gave instructions that he recalls undertaking the test in the Branch office prior to visiting a workplace early in the afternoon. Mr Katsis’ later evidence was that while he has a clear memory of doing his test, he cannot recall the precise date or time.

[230] Mr Katsis gave evidence that before he did the test, he downloaded and printed the ACTU material and also had a copy of the Act with him. He recalls that he did the test in the Branch office in South Melbourne and that the test took him more than half an hour. He states that contrary to the ACTU data records, he did not do the test in 3 minutes.

[231] Mr Katsis denies Ms Govan’s allegation that it was common knowledge that he had not done his test and that he spoke about that fact with her.

[232] Counsel for Mr Katsis submit that there is no proven providence of the information contained in the data concerning the time of his test and the duration thereof, and that therefore, Mr Katsis’ sworn evidence should be accepted.

[233] In terms of documentary evidence, the ACTU’s records demonstrate that on 15 February 2013, a series of right of entry tests were conducted for Branch officials, including for Mr Katsis as specified above. The records demonstrate as follows:

[234] It appears likely that the first three Branch accounts accessed that day were accessed by someone other than the account holder, as Mr Atkinson, Ms Govan and Mr McCubbin have each given evidence that they did not undertake their own test.

[235] Mr Katsis’ electronic diary records indicate that he was scheduled to have a meeting at the Cabrini Hospital in Malvern from 2pm to 3pm. Mr Katsis’ phone records indicate that calls were made using Mr Katsis’ mobile phone in the Malvern area at 1.53pm and 3.48pm which, combined with Mr Katsis’ diary records, appears to indicate that Mr Katsis was in the Malvern area between those times.

[236] Mr Katsis gave evidence that telephones were given to all organisers but they did not necessarily stay with each organiser. For example, Mr Katsis would hand his phone to reception staff during peak periods to go through messages. Mr Katsis reasoned that therefore he could not state with certainty whether he was using the phone on the particular day. Mr Katsis gave evidence that if the telephone records were in fact correct, he believes he could have made it back to the Branch office in time to complete the test, as when he tested the time it took to drive from Malvern to the Branch office it took him around nine minutes and 38 seconds.

[237] The Commission directed Mr Katsis to produce any email records prior to 15 February 2013 regarding his ACTU password and its communication to Ms Kitching. At the hearing of the matter, counsel for Mr Katsis advised that Mr Katsis made a search of available equipment and is unable to produce any.

[238] Ms Kitching gave evidence concerning her whereabouts on 15 February 2013, the day Mr Katsis and a number of other officials’ tests were undertaken. Ms Kitching states that records of her work emails indicate that she sent some work emails at 3.43pm and 3.46pm, so she presumes she had returned to the office from lunch by that time. Her memory is that, by the time she was back in the office, there was only about an hour or so of the usual working day remaining. Ms Kitching states that she left the office at about 7pm. Ms Kitching gave evidence that she has never completed a right of entry test on behalf of any other person, including for Mr Katsis.

[239] Ms Asmar gave evidence that she did not instruct Ms Kitching, Ms Lee or any other Branch employee to undertake a right of entry test on behalf of any other person.

[240] Mr McGregor did not provide any direct evidence concerning Mr Katsis’ right of entry test. However, Mr McGregor gave evidence that he had conversations with Ms Kitching during which he believed Ms Kitching was implying that she had sat and completed right of entry tests.

[241] Mr Leszczynski also gave evidence of conversations with Ms Kitching concerning entry permits. Mr Leszczynski further gave evidence that he believed Mr Katsis appeared to have no previous experience in a union position and lacked the relevant skills and knowledge for his position.

[242] Ms Flynn did not provide any direct evidence about Mr Katsis’ right of entry test, however Ms Flynn refers to conversations she had with others in which they indicated Ms Kitching completed tests for others.

[243] Ms Porter does not provide any direct evidence concerning Ms Katsis. However, Ms Porter gave evidence of conversations in which Ms Asmar advised she was directing Ms Kitching to complete Ms Asmar and Mr McCubbin’s test.

[244] Mr McCubbin gave evidence of a conversation and subsequent meeting with Ms Asmar during which Ms Asmar advised that Ms Kitching was going to do right of entry tests for organisers. Mr McCubbin states that he is certain that Ms Kitching completed the right of entry test for a number of people, there was no secret about it and everyone in the office knew about it. Mr McCubbin states that one of the people Ms Kitching did the test for was Mr Katsis. Mr McCubbin further states that he was concerned about Mr Katsis not having done the training as he had not had any experience in accessing work sites.

[245] Ms Govan gave evidence that at an industrial day in February or March 2013 Ms Asmar told all present that they would not be required to complete their own right of entry tests and that Ms Kitching would be completing the tests for them. Ms Govan states that she can say with confidence that Mr Katsis did not do his own right of entry test because Mr Katsis, among others, started at the same time as her and they spoke about the fact that Ms Kitching would be completing their tests among themselves. Ms Govan states that it was common knowledge and was not hidden from anyone.

[246] Ms Lee gave evidence that upon her return from leave in early March 2013, she was provided with a bundle of right of entry applications, Certificates of Achievement and test results by the Branch receptionist. Mr Katsis’ forms were included in that bundle. Ms Lee gave evidence that she recalls later taking the bundle of documents to Ms Kitching and discussing them with her. Ms Lee states that during the conversation, Ms Kitching told her how she had completed right of entry tests for the organisers. Ms Lee states that it was clear that Ms Kitching was talking about having done the right of entry tests for the organisers whose forms were in the bundle of documents handed to her by the Branch receptionist and which she took into Ms Kitching’s office.

[247] The Director’s report noted that the inquiry by the Regulatory Compliance Branch identified sufficient evidence on balance to substantiate the following:

[248] As a result of the inquiries conducted by the Regulatory Compliance Branch, the Director wrote to Mr Katsis advising of his intention to make the following adverse findings:

[249] The finding in relation to Mr Katsis set out in the Interim Report of the Royal Commission is as follows:

Mr Katsis was one such organiser whose test was completed on 15 February 2013 and who the Royal Commission made a finding in relation to.

[250] I have found that Ms Kitching performed the ACTU tests for a number of officials on 15 February 2013. It is inherently unlikely that the ACTU records regarding the time taken to complete the test are incorrect. It is inherently unlikely that Mr Katsis, very inexperienced at the time, accessed the training for three minutes and completed the test in two minutes. It is inherently unlikely that Mr Katsis did this within 15 minutes of speaking on his mobile phone in Malvern. On the other hand it is conceivable and indeed likely that Ms Kitching could have done the test in that time frame. On all of the evidence I find that Ms Kitching performed Mr Katsis’ test.

Who accessed Mr Mitchell’s ACTU training account on 15 February 2013?

[251] The ACTU data indicates that the first occasion that Mr Mitchell’s ACTU account was accessed was at AEDT 9.38pm on 4 February 2013. The data indicates that the person accessing Mr Mitchell’s account viewed the resources, the course and the quiz before attempting the quiz at AEDT 9.46pm. The data shows that the last access to Mr Mitchell’s account on 4 February 2013 was at AEDT 10.36pm. The ACTU data indicates that while Mr Mitchell appears to have completed the 30 questions in a total time of approximately 49 minutes, he did not submit the test as completed until the following morning.

[252] The ACTU data indicates that the second occasion that Mr Mitchell’s ACTU account was accessed was at AEDT 8.51am on 5 February 2013. The data shows that the person accessing Mr Mitchell’s account continued the first attempt at the right of entry quiz and completed it at AEDT 9.19am. Mr Mitchell’s right of entry quiz was completed by answering 21 out of 30 questions correctly, recording a grade of 70 per cent, which is a fail grade.

[253] The ACTU records show that the second attempt at Mr Mitchell’s quiz commenced on 5 February at AEDT 9.38am and finished at 9.48am. Mr Mitchell’s quiz was completed by correctly answering all 30 multiple choice questions and recording a 100 per cent pass rate in a time of 10 minutes and 50 seconds. The data indicates that the person accessed a Certificate of Achievement at 9.51am and logged out at 9.51am. At 9.51am Mr Mitchell was sent an automatically generated email advising about the availability of the Certificate of Achievement.

[254] Mr Mitchell gave evidence of the circumstances in which he completed his right of entry test. Mr Mitchell testifies that he did the right of entry test on the evening of 4 February 2013 at his home, and failed his first attempt because he did not have the relevant legislation with him.

[255] Mr Mitchell gave evidence that on the second attempt the following morning on 5 February 2013, he successfully completed the test. Mr Mitchell gave evidence that he printed out the relevant sections of the Act on 5 February 2013. He provided documentary evidence of those pages which include a date at the bottom right hand corner indicating the date printed was 5 February 2013. Mr Mitchell gave evidence that his wife saw him doing the test both times.

[256] The ACTU data records indicate that Mr Mitchell’s ACTU account was subsequently logged into on 15 February 2015 at 3.18pm (4.18pm AEDT). Mr Mitchell states that he tried to access the system after having originally completed his test because he had given his original Certificate of Achievement to the office and wanted to print out another copy of his certificate. In Mr Mitchell’s witness statement, Mr Mitchell gave evidence that he was allowed to log in but he could not print the certificate out. At the hearing, Mr Mitchell gave evidence that he was not able to log on.

[257] Mr Mitchell cannot remember the date on which he tried to access the system to view his Certificate of Achievement. He gave evidence that he does not believe he accessed the ACTU site at 3.18pm on 15 February, as he has looked in his diary and at that particular time he was either just completing a meeting in Kyabram or he would have been on the road between Kyabram and Echuca, so it is highly unlikely that he would have done it.

[258] Ms Asmar gave evidence that she did not instruct Ms Kitching, Ms Lee or any other Branch employee to undertake a right of entry test on behalf of any other person.

[259] Ms Kitching gave evidence that she has never undertaken ACTU training or completed a right of entry test for any other person or at all, including for Mr Mitchell.

[260] Mr McCubbin gave evidence that he is sure Mr Mitchell did his own test, because Mr Mitchell called him and told him he had failed his right of entry test, and then called him the following day and told him that he had passed.

[261] Ms Lee gave evidence that upon her return from leave in early March 2013, she was provided with a bundle of right of entry applications, Certificates of Achievement and test results by the Branch receptionist. Mr Mitchell’s forms were included in that bundle. Ms Lee gave evidence that she recalls later taking the bundle of documents to Ms Kitching and discussing them with her. Ms Lee states that during the conversation, Ms Kitching told her how she had completed right of entry tests for organisers. Ms Lee states that it was clear to her that Ms Kitching was talking about having done the right of entry tests for the organisers whose forms were in the bundle of documents handed to her by the Branch receptionist and which she took into Ms Kitching’s office.

[262] The Director’s report noted that the inquiry by the Regulatory Compliance Branch has, on balance, determined the following:

[263] The Director notified Mr Mitchell that he proposed to make the following findings:

[264] The Royal Commission did not consider questions concerning Mr Mitchell’s right of entry test.

[265] On all of the evidence and in the light of my findings I find that Ms Kitching accessed Mr Mitchell’s account on 15 February 2013.

Summary and Conclusions

[266] The ACTU has a right of entry training package that has been approved by the Delegate of the Fair Work Commission. The ACTU’s training is conducted by way of an online course which includes reading material and a multiple choice test consisting of 30 questions to assess participants’ understanding of the relevant provisions of the Act.

[267] Following the release of the interim report of the Royal Commission and the consent of various officials to the revocation of their permits or withdrawal of undetermined applications the remaining questions I am required to consider are as follows:

14. Whether the right of entry permit issued to Mr. Katsis should be revoked.

16. Whether the right of entry permit issued to Mr. Mitchell should be revoked.”

[268] On the evidence before me I have made the following findings:

[269] Making false declarations and failing to complete training that is a requirement for a right of entry permit are serious matters that strike at the heart of the integrity of the right of entry permit system. On the basis of these findings I answer the questions posed in this inquiry as follows:

Q14. Whether the right of entry permit issued to Mr. Katsis should be revoked.

A14. Yes.

Q16. Whether the right of entry permit issued to Mr. Mitchell should be revoked.

A16. No.

VICE PRESIDENT

Appearances:

Mr R. Van de Wiel QC, Mr M. Champion and Ms S. Keating of counsel on behalf of the Health Services Union-Victoria No. 1 Branch, Ms Asmar, Mr Katsis and Mr Mitchell.

Mr Matthews of counsel on behalf of Mr McGregor and Mr Leszcynski.

Hearing details:

2014.

Melbourne.

22 May, 27 October, 29 October.

2015.

Melbourne.

12 February, 8 & 23 April, 4 &11 May.

 1   [2014] FCA 1156.

 2   [2014] FWC 7616.

 3   [2014] FCA 16.

4 Royal Commission into Trade Union Governance and Corruption Interim Report, p. 1569.

 5   Royal Commission into Trade Union Governance and Corruption Interim Report, p. 1570.

 6   PR561035.

 7   [2015] FCCA 491.

 8   Royal Commission into Trade Union Governance and Corruption, Transcript of public hearing – 19 September 2014, pp. 1054-1055.

 9   [1938] HCA 34; (1938) 60 CLR 336.

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