24 March 2014

Ms Diana Asmar Health Services Union (HSU) Victoria No. 1 Branch 208 - 212 Park Street South Melbourne VIC 3205

Dear Ms Asmar,

FairWork Commission

Notice of Specific Adverse Findings Relevant to Right of Entry Permit (RE 2013/426)

As you aware the Fair Work Commission (FWC) has been conducting inquiries in relation to the administration of Right of Entry (ROE) permits at the Victoria No 1 Branch (the Branch) of the Health Services Union (HSU). Those inquiries involved an allegation that during the 2013 calendar year, a range of current and former office holders and employees of the Branch were issued with ROE permits pursuant to s 512 of the Fair Work Act 2009 (the Act) based on false or misleading declarations having been made to and relied upon by the FWC.

The purpose of this correspondence is to advise that as a result of the inquiries conducted into the issuing of your ROE permit on 31 January 2013 (RE 20 13/426), the following adverse finding is proposed to be made;

• That in order to obta in a ROE permit, you made an intentionally false and misleading statement in a declaration for a ROE permit dated 29 January 2013 that you had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry on line training course completed on 25 January 2013.

Action Proposed

I advise that having proposed to make the finding referred to above, I consider the following options available to me:

• Take no action; • Impose a condition on your permit in accordance with s 515 of the Act; • Exercise a power implied by the Act to revoke your permit RE 2013/426; • Refer the matter for prosecution of a breach of s 137.1 Criminal Code Act 1995 (Cth)

I advise that having proposed to make a finding that you made an intentionally false and misleading statement in order to obtain a ROE permit, I propose to exercise a power implied by the provisions of the Act and revoke your permit. I also advise that upon completion cif the inquiries, I propose to further consider whether to refer the matter for prosecution of a breach of s 137.1 Criminal Code Act 1995 (Cth).

11 Exhibition Street

Melbourne VIC 3000

GPO Box 1994 Melbourne VIC 3001

Telephone: (03) 8661 7777

International: (613) 8661 7777 Facsimile: (03) 9655 0401

Email: orgs@fwc.gov.au

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For your ease of reference, I have attached part of a report which is relevant to the findings above and which is referred to as Annexure 2. In reaching the proposed finding I have referred to above, I have relied upon the materials contained within Annexure 2 and other materials which are referred to within Annexure 2.

You are invited to respond to the materials contained or referred to within Annexure 2 and the findings referred to by COB Tuesday 15 April 2014. Upon receipt of your response, if any, I propose to issue a formal written decision based on all of the available materials (including your response). I advise that any formal written decision I make will be appellable to the FWC.

Should you have any questions or would like to discuss the matter in the meantime, I can be contacted on the details provided below.

Yours Sincerely

Chris Enright

Director Regulatory Compliance Branch Fair Work Commission 03 8661 7818 -chris.enright@fwc.gov.au

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Annexure No Description 2 (i) Application for ROE permit submitted to the

FWC 2 (ii) Statutory declaration signed by Ms Diana

Asmar 2 (iii) Statement of Mr Robert McCubbin

r-----'-2 (iv) Statement ofMs Jayne Govan 2 (v) Correspondence from FWC re Confidential

Sources 2 (vi) Statement of Alex Leszczynski 2 (vii) Statement ofMs Peggy Lee 2 (viii) Branch res2onse dated 26 November 20 I 3 2 (ix) Spreadsheet including Victoria No 1 branch

applicants for ACTU Federal ROE training and testing

2 (x) Actions, email and test times relevant to Ms Diana Asmar 25 January 2013

2 (xi) Invest-e-gate report from Mr Scott Mann 2 (xii) Statement of Ms Sandra Porter 2 (xiii) Statement of Ms Leonie Flynn 2 (xiv) Transactions for Ms Asmar 25 January 2013

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Annexure 2

Diana Asmar- Branch Secretary Introduction

1. On 4 September 2013 the Assistant Secretary I Treasurer of the Victoria No 1 Branch of the Health Services Union (HSU) Ms Leonie Flynn lodged a formal statement of complaint with the Fair Work Commission (FWC) which, among other things, referred to her concern about what she described as 'Other employees completing Organisers' Right of Entry' tests during the 2013 calendar year. Following the lodgement of Ms Flynn's formal statement of complaint on 4 September 2013 the FWC commenced making inquiries about the management of the Right of Entry (ROE) permit application system by the Victoria No 1 Branch (the Branch) of the HSU during the 2013 calendar year.

2. Section 512 of the Fair Work Act 2009 (the Act) provides the statutory authority for the FWC to issue ROE permits. It is implicit in the formulation of s 512 that the FWC may make inquiries so as to determine whether it is satisfied about the permit qualification matters set out ins 513 to which it must have regard. The FWC relied upon the formulation of s 512 and s 51 3 of the Act to conduct inquiries into the management of the ROE permit application system by the Branch during the 2013 calendar year.

3. The essential allegation which emerged from the inquiries was that during the 2013 calendar year a range of current and former office holders and employees of the Branch were issued with ROE Permits pursuant to s 512 of the Act based on false or misleading declarations having been made to and relied upon by the FWC.

4. The particulars of the allegation included that current and former office holders and employees of the Branch had signed declarations attesting to having received appropriate training as required by the Act in circumstances in which those office holders and employees had not received such training but nonetheless declared that they had and were subsequently issued with ROE Permits.

5. One of the permit holders relevantly identified during the inquiries was Ms Diana Asmar.

Permit holder Ms Diana Asmar

6. On 29 January 2013 an application for a ROE permit was lodged at the FWC by the Branch on behalf of a then proposed permit holder (PPH) Ms Diana Asmar (Annexure 2 (i ). The application was signed and dated 29 January 2013 and contained a declaration from the Junior Vice President of the Branch Ms Rhonda Barclay as the Committee of Management (COM) 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 requirements in the Act namely:

'the ACTU Federal Right of Entry online training course completed on 25 January 2013 (Please see Attachment 1). '

7. Attachment 1 was a copy of the Certificate of Achievement issued toMs Asmar by the ACTU.

8. The application contained a declaration by Ms Diana 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.

9. As a result of the application submitted by the Branch, Ms Asmar was issued with a ROE permit on 31 January 2013.

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Administration of Right of Entry Permits at the Branch

10. Ms Diana Asmar was elected to the position of Branch Secretary on 21 December 2012 and immediately appointed Ms Kimberley Kitching as the General Manager of the Branch.

11 . Ms Asmar has made a statutory declaration dated 25 November 2013 (Annexure 2 (ii) setting out among other things, that because of the 'departure of former employees of the Branch' during January of 2013, there was an urgent need to address the ROE permit process and that three issues were evident.

1. Only one Branch office holder and three branch employees then held ROE permits;

2. Ms Asmar was particularly conscious of the fact that many of th~ people she was seeking to recruit as organisers 'had no training'; and

3. Ms Asmar had been specifically advised that the ROE permit application process at the Branch had been unethically managed by the previous leadership.

12. As a matter of urgency and in January 2013 Ms Asmar tasked two key employees to put in train the process for obtaining ROE permits. The Industrial Officer Ms Peggy Lee was tasked to implement the processes for obtaining ROE permits and the General Manager Ms Kimberley Kitching was allocated the responsibility to ensure that Ms Lee completed that ongoing task. Part of the evidence demonstrating the critical role of Ms Kitching in the ROE process included that Ms Asmar later required Branch applicants for the ACTU Federal Right of Entry course to provide their course details, including passwords, to Ms Kitching. No such requirement applied to Ms Lee or any other Branch employee or office holder.

13. Much of the available materials relevant to the administration and processing of ROE permits at the Branch affirms that from January 2013, both Ms Peggy Lee and Ms Kimberley Kitching were the two key HSU employees responsible for the administration ofROE permits.

14. The available materials, including the witness accounts to be described below, demonstrate that upon application to participate in the ACTU Federal ROE course, applicants were electronically provided with course details and passwords, with a copy of that information provided to the Branch Secretary Ms Diana Asmar.

15. The materials do not contain copies of any email correspondence between Ms Asmar and Ms Kimberley Kitching on the ROE permit issue.

Inquiries conducted relevant to Ms Asmar

16. As a result of allegations made by the Assistant Branch Secretary I Treasurer Ms Leonie Flynn and subsequent inquiries, the FWC wrote to Ms Asmar on 4 September 2013 advising that information had been received which had raised significant concern about whether she had received the requisite ROE ACTU online training and whether she had participated in the testing questionnaire which is a part of that training package. Specifically, Ms Asmar was advised that the FWC was concerned that her declaration may have been incorrect and possibly misleading.

17. The FWC requested Ms Asmar to provide a Statutory Declaration confirming that she was the person who actually received appropriate training about the rights and responsibilities of a permit holder and that she was actually the person who completed the online ROE test which is part of the ACTU training package.

18. On 17 September 2013 and in response to a request from Mr David Shaw of Holding Redlich acting for the Branch, copies of signed statements from two previous employees of the Branch, Mr Robert McCubbin (Annexure 2 (iii)) and Ms Jayne Govan (Annexure 2(iv)) were provided to the Branch. The contents of the McCubbin and Govan statements will be referred to in more detail below.

19. Relevantly, both Mr McCubbin and Ms Govan conceded in their signed statements that while each of them had been issued with ROE permits, neither had received the relevant training and each of their applications had contained false and misleading declarations. Mr

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McCubbin provided direct evidence of Ms Asmar advising him that Ms Kimberley Kitching had been responsible for completing Ms Asmar's ROE training and testing. Ms Govan provides direct evidence of Ms Asmar advising her that organisers would not be required to complete their own ROE tests and that Ms Kimberley Kitching would be completing the tests for them.

First Request for Further Records

20. On 25 September 2013 the FWC requested the Branch to examine records which could identify the whereabouts and movements of a number of Branch staff at times relevant to their ROE testing. In particular, the Branch was requested to examine:

• relevant diary entries;

• relevant HSU mobile phone records; and

• relevant HSU CityLink vehicle records.

21. Subsequent to 25 September 2013, the FWC exchanged regular correspondence with Mr David Shaw of Holding Redlich in relation to the delay in obtaining the diary entries, mobile phone and other requested records.

Confidential Sources

22. During the course of inquiries being conducted, the FWC received information from two persons in relation to the ROE permit issue although unlike Ms Flynn, Ms Govan and Mr McCubbin, these two persons did not initially provide signed statements.

23. As a matter of procedural fairness and on 17 October 2013, the FWC wrote to the Branch advising that the FWC was in receipt of information from two confidential sources described as Confidential Source 1 (CS1) and Confidential Source Two (CS2) which might assist the Branch in the preparation of its response to the ROE permit issue. The correspondence from the FWC to the Branch is attached as Annexure 2 (v). ·

24. In relation to the 17 October 2013 correspondence, the FWC relevantly advised the Branch that a confidential source had provided information that;

'Ms Kimberley Kitching is the person who completed each of the ACTU ROE training and testing exercises for HSU employees who are recorded as having participated in ROE testing around 15 February 2013'.

'All the FWC would need to do to prove this is to examine Ms Kitching 's computer and it will be clear from analysis of her computer that Ms Kitching did the tests consecutively .. It is likely that each of the training exercises will be shorter than the previous because she will have become more familiar with the requirements as she completed each test'.

25. The FWC advised the Branch that it was endeavouring to establish the further cooperation of the two confidential sources referred to by obtaining written statements from them and if successful, it was proposed to provide the Branch with those written statements.

26. Confidential Source 1 later identified as Mr Alex Leszczynksi who on 6 January 2014 signed a statement largely prepared for the purposes of a separate investigation being conducted under s 331 of the Fair Work (Registered Organisations) Act 2009 (the RO Act) with respect to allegations of financial and other rule breaches involving of the Branch. Within that statement, Mr Leszczynski included a heading 'Right of Entry Permit Issue' and set out his evidence relevant to that issue (Annexure 2 vi).

27. Confidential Source 21ater identified as Ms Peggy Lee who on 16 January 2014 provided a statement which had been signed on 15 January 2014 setting out her knowledge and participation in the ROE administration and processes at the Branch during the 2013 calendar year (Annexure 2 (vii)). Both of these witnesses will be further referred to later in this document.

28. On 13 February 2014 both of these statements were provided to the Branch.

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Ms Asmar's Statutory Declaration and the HSU Branch response

29. On 26 November 2013 and through Mr David Shaw of Holding Redlich, Ms Asmar provided a Statutory Declaration dated 25 November 2013 in response to the earlier request from the FWC (Annexure 2 (ii)).

30. Within the declaration, Ms Asmar responded to the allegations made by Ms Flynn, Mr McCubbin and Ms Govan. Essentially Ms Asmar denied the allegations that she did not undertake her own ROE test and allegations that she had instructed the Branch General Manager, Ms Kimberley Kitching, to undertake tests on behalf of other Branch employees. Ms Asmar also included that she had no knowledge of any of the matters alleged prior to seeing the allegations in the material provided by the FWC.

31. Ms Asmar included that she had previously held a ROE permit when employed by the Branch as an organiser between July 2004 and May 2007. Ms Asmar included that she had retrieved a copy of her application for ACTU on line training and an email from the ACTU providing her with a password for the ACTU training and ROE test. Ms Asmar included that she recalled before doing the test she was given some material by Ms Lee and she had a look at the relevant provisions of the Act. To the best of her recollection, Ms Asmar answered all the questions in the test correctly and on concluding the test, she was able to print out a Certificate of Achievement.

32. Ms Asmar further confirmed signing an application for a ROE permit and signing a declaration which contained the details of the training she received . Ms Asmar confirmed that the contents of her application and declaration were true and correct Annexure 2 (i).

33. On the same day, the Branch provided a general written response (the Branch response is attached as Annexure 2 (viii)) to the ROE permit issues being examined by the FWC addressing a range of matters which had emerged from correspondence and other materials.

34. The Branch also provided the FWC with a data spread sheet it had received from the ACTU and which it had relied upon to prepare the response. The ACTU data spread sheet contained information identifying each HSU Victoria No 1 Branch employee who had either applied for or completed the ACTU Federal Right of Entry course in the 2013 calendar year (Annexure 2,(ix)).

Second Request for Further Records

It was clear from the Branch response dated 26 November 2013 that a range of extant materials had been relied upon in its preparation. It was evident for example, that telephone records, emails and other information had been examined by the Operations Officer to inform the Branch response.

35. In order to assist with the proper assessment of the Branch response, the FWC wrote to the Branch on 27 November 2013 requesting to be provided with further records including copies of all of the extant information referred to as being examined by the Branch to assist in preparing the response.

36. Examples of further information sought included the following;

• Copies of mobile phone records;

• Copies of Citylink toll records; and

• Copies of diary entries for the relevant Branch people.

37. On 11 December 2013 and on behalf of the Branch, Operations Officer Mr Mark Donohue provided a copy of what are described as individual 'transactions' for a number of Branch employees although no transactions were provided which were relevant to Ms Asmar.

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Third request for further records

38. On 23 December 2013 the FWC wrote to the Operations Officer of the Branch Mr Mark Donohue requesting further records be provided in relation to Ms Asmar. In particular, the FWC requested;

• Similar documents for Diana Asmar's whereabouts on 25 January 2013, 4 February 2013, 5 February 2013, 15 February 2013, 18 & 19 March 2013, 20 March 2013 and 26 March 2013.

39. On 17 February 2014 a representative of Holding Redlich provided the FWC with the following materials relevant toMs Asmar in response to the 23 December 2013 correspondence which included;

• 25 January 2013; Security access & an email record;

• 4 February 2013; Security access, email & mobile phone records;

• 5 February 2013; Security access, email & mobile phone records;

• 15 February 2013; Mobile phone, email & diary record;

• 18 March 2013; Security access & mobile phone records;

• 19 March 2013; Security access, email & ·mobile phone records;

• 20 March 2013; Security access, mobile phone record~ & diary entry; and

• 26 March 2013; Security access, mobile phone records & diary entry.

40. The relevant transactions provided by the Branch in relation to the movements of Ms Asmar on 25 January 2013 (the date of her ROE test) are as follows :

Table 1. 25 January 2013 transactions forMs Diana Asmar (Annexure 2 (xiv))

Transaction Time Location Security roller door access 8.53 a.m. Branch office Security door access to Diana Asmar office 8.55 a.m. Branch office Email 5.20 p.m. N/A

41. The inquiry noted that while mobile telephone records relevant to Ms Asmar were provided for 4 February 2013, 5 February 2013, 15 February 2013, 18 March 2013, 19 March 2013, 20 March 2013 and 26 March 2013, mobile telephone records were not provided for 25 January 2013 which is the date recorded in the ACTU data for Ms Asmar's ROE test.

42. On 18 February 2014 the FWC wrote to the Branch acknowledging receipt of documents and other materials earlier requested although it noted that there were no telephone records relevant to Ms Asmar's whereabouts on 25 January 2013 which was the date of her ROE test. The FWC requested Ms Asmar to provide her mobile telephone records from the last call on 24 January 2013 and the further records for the first call on 26 January which would clarify that no mobile calls were made on 25 January 2013.

43. On 11 March 2014 the FWC again wrote to the Branch aOdvising that it had not received a number of items previously requested , including Ms Asmar's mobile phone records for the period 24 - 26 January 2013. The FWC further advised that in the event the outstanding materials were not provided to the FWC by Friday 14 March 2014, without further the FWC proposed to conclude the ROE permit aspect of its inquiries and make findings based on all of the materials and information available to it.

44. At the date of this document, no response had been received to those requests.

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The ACTU Data provided to the Branch

45. On 23 October 2013 the ACTU wrote to Mr David Shaw of Holding Redlich and provided a spreadsheet containing data in relation to the participation of all Victoria No 1 Branch HSU applicants for the Federal ROE Course in the 2013 calendar year.

46. The ACTU further advised Mr Shaw that the records indicated that some of the Branch participants took a very short period of time to complete the assessment tasks which was a matter of concern to the ACTU. The ACTU advised that additional safeguards in relation to the system had been implemented to address its concerns about HSU Victoria No 1 Branch employees completing assessment tasks in a very short period of time.

47. On 26 November 2013 the Branch provided the excel spreadsheet to the FWC which it had received from the ACTU and which included details of all Branch applicants for the Federal ROE Course for the 2013 calendar year (Annexure 2 (ix)).

48. On 18 December 2013 FWC staff attended at the ACTU and received additional ACTU data relevant to a number of Branch applicants including Ms Asmar. The FWC received from the ACTU the following data: (Annexure 2 (x))

• A data table which provided details of every occasion Ms Amar's ACTU ROE account had been accessed;

• A system report which provided details of the test taken for the purposes of Ms Asmar's ROE course; and

• A copy of the automatically generated email provided to Ms Amar's email account upon successful completion of the ROE test.

49. To assist the inquiries being conducted, the services of an independent computer forensic expert were engaged. Mr Scott Mann of Invest-a-gate Pty Ltd conducted tests and inquiries and subsequently provided a report dated 17 February 2014.

50. The Invest-a-gate report sets out that any times specified on the ACTU data records that fall within daylight savings should be accounted for by adding one hour to that time to align with the actual time the activity occurred.

51. The report (attached as Annexure 2 (xi)) provides that this is because when Mr Mann accessed the ACTU instance of its Moodie learning management system, he found that the system was set to display time at GMT +10 (non daylight savings time). There was no option to have the system automatically adjust for daylight savings. For the system to display times as Australian Eastern Daylight Time (AEDT) or accurate for Victoria during daylight savings the system would need to be manually set to GMT +11.

52. The lnvest-e-gate report further sets out that the ACTU were not asked to modify the time zone setting on their server therefore all logs that have been produced from the server have been produced as GMT +10. Accordingly, any times that fall within daylight savings should be accounted for by adding one hour to that time. When referring to ACTU data in this report, it will be specified whether the time is AEDT or otherwise to avoid confusion.

53. The various materials and data received from the Branch and the ACTU were analysed against the dates relevant to Ms Asmar. That examination identified the following:

10 January.3013

54. Ms As mar was enrolled In the ACTU online Federal Right of Entry course on 1 0 January 2013.

25 January 2013

55. The ACTU data indicates the first and only date that Ms Asmar' ACTU account was accessed for the ROE course was via IP add res~ which commenced at AEDT 1.08 p.m. on 25 January 2013. The data i ndicat~as commenced at AEDT 1.51

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p.m. and concluded at AEDT 2.44 p.m. in a time of 52 mins and 42 seconds. The data records the user logging out of the course at AEDT 2.45 p.m. having accessed the Certificate of Completion.

56. The Branch has not provided Ms Asmar's mobile phone records to assist with determining her whereabouts on 25 January 2013. The Branch did provide a table of records in relation to Ms Asmar on 25 January 2013 referred to above as Table 1.

57. Ms Asmar's account in her Statutory Declaration is that she recalled before doing the ROE test on 25 January 2013 she was given some material by Ms Lee and she had a look at the relevant provisions of the Act. To the best of her recollection, Ms Asmar answered all the questions in the test correctly and on concluding the test, she was able to print out a Certificate of Achievement.

58. The witness evidence will be referred to later in this document although in summary Mr Robert McCubbin alleges that Ms Asmar directly stated to him that Ms Kitching completed her (Ms Asmar's) ROE test. Mr McCubbin's partner Ms Sandra Porter (Annexure 2 (xii) further alleges that Ms Asmar had directly stated that prior to the ROE test being conducted, she (Ms As mar) was arranging for Ms Kitching to complete the test on her behalf and subsequent to the ROE test being conducted, Ms Asmar directed stated that Ms Kitching had in fact completed her (Ms Asmar's) ROE test.

59. Ms Govan alleges that Ms Asmar did not complete her own ROE test. In addition, the witness Mr Leszczynski alleges that Ms Kitching told him that she was actually completing Ms Asmar's ROE test because Ms Asmar was too busy to complete her own ROE test. Ms Lee alleges that she administratively processed Ms Asmar's ROE application although she did not have direct evidence about whether or not Ms Asmar completed her ROE test. Ms Lee does however provide evidence about Ms Asmar directly asking her (Ms Lee) to conduct ROE tests on behalf of organisers. Further Ms Lee included that as a result of their conduct, both Ms Asmar and Ms Kitching had a clear expectation that she (Ms Lee) would complete ROE testing for Branch organisers.

60. It is clear from the materials that there are two mutually exclusive accounts and one of them must be a false account.

61 . Ms Asmar's account in her Statutory Declaration is that she received material from Ms Lee on 25 January 2013, received the appropriate training and completed the ROE test. Alternatively, if the account demonstrated by the material statements of Mr McCubbin, Ms Porter, Ms Govan, Mr Leszczynski and Ms Lee are factual, Ms Asmar's must be a false account.

Relevant Internet Protocol (IP) address

62. On 8 January 2014 the ACTU provided the additional data relevant toMs Asmar's Federal ROE Course account. One of the columns provided in the ACTU data is headed IP address. Mr Scott Mann of Invest-a-gate Pty Ltd provided a report dated 17 February 2014 and within that report, the issue of IP addresses is referred to.

63. The lnvest-e-gate report sets out that the logs relating to users logon times and activities also record the IP address that the access occurred from. An IP address is a way of uniquely identifying a device (computer, printer, router, mobile etc.) on a network or network segment.

64. The ACTU logs relevant to Ms Asmar recorded the following IP address:

Table 2.

65. Mr Mann of Invest-a-gate performed a 'traceroute' search and confirmed that the IP add traces back to the HSU and is associated with the HSU's domain.

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66. The lnvest-e-gate report describes that most users connecting to the ACTU Federal ROE course will be connecting via the Internet either from home or from a business premises and in that case, the IP address that is recorded in the logs will be that of the device that provides access to the Internet usually a modem I router. The Internet Service Provider (ISP) such as Telstra Bigpond or TPG provide the address and so when the IP address is 'looked up' it resolves back to the ISP.

67. The Jnvest-e-gate report describes that between 4 February 2013 and 20 March 2013, the ACTU system recorded IP addresses associated with a computer in the host's environment rather than the externaiiP addresses associated with the users accessing the system. This was due to a network configuration error that occurred as a result of a migration. The report describes that when the error was identified, a patch was implemented and the system re­commenced recording and logging externaiiP addresses. The Invest-a-gate report included that the error did not impact the accuracy of the IP addresses recorded, the IP addresses for the devices in the host's environment were correct although the error impacted the ability to record externaiiP addresses for a period of time.

Relevant witness evidence

68. Inquiries conducted by the FWC relevant to ROE permits included the receipt of signed statements from the following witnesses relevant to Ms Asmar:

Ms Leonie Flynn

69. Ms Flynn is the current Assistant Secretary I Treasurer of the Branch. Ms Flynn originally lodged a complaint with the FWC which, among other things, referred to her concern about what she described as 'Other employees completing Organisers' Right of Entry' tests during the 2013 calendar year.

70. In Ms Flynn's signed statement of 4 September 2013, (Annexure 2(xiii) she based her concerns about ROE permits on information she had received from a then unnamed colleague. Ms Flynn's then unnamed colleague was subsequently identified by the inquiry as Ms Peggy Lee. Ms Flynn stated that her colleague had heard a conversation between Ms Diana Asmar and Ms Kimberley Kitching about ROE tests and her colleague further stated that Ms Kitching later completed a number of ROE permit tests for organisers of the Union.

71. While Ms Flynn's complaint was the basis for the FWC to commence inquiries into the matter, she did not have direct evidence relevant to Ms Amars' ROE permit application. Ms Flynn included in her statement of 4 September 2013 advice she received by text message from Ms Jayne Govan in which Ms Govan stated 'She [Ms Kitching] would of done Diana's. It was when we started.'

Mr Robert McCubbin

72. Mr McCubbin is a former long term member of the HSU Victoria No 1 Branch and in company with his partner Ms Sandy Porter, was a member of Ms Diana 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, Mr Donohue and others although he did not become a paid employee until April 2013.

73. Mr McCubbin signed a statement on 13 September 2013. Within that statement, Mr McCubbin detailed that earlier in 2013 (he suggested in about April 2013) he had a discussion with Ms Asmar during which Ms Asmar told him that Ms Kimberley Kitching had 'done her (Diana's) right of Entry on line test'. Mr McCubbin further stated that Ms Asmar indicated she was intending instructing the rest of the staff at the industrial day that Ms Kitching would be doing the ROE tests, including his.

74. Mr McCubbin further stated that during a subsequent meeting, Ms Asmar directed that ROE permit tests would be done by Ms Kitching. Mr McCubbin further stated that he was

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aware that Ms Kimberley Kitching had later completed ROE tests for a number of people including Ms Asmar.

75. Mr McCubbin corroborates Ms Peggy Lee by recalling that he was present at the Branch office when both Ms Asmar and Ms Kitching gave a direction to Ms Lee to do what he described as 'Right of Entries'. According to Mr McCubbin, Ms Lee refused and he recalled thinking how brave Ms Lee was because he knew what could happen to people who refused direction from Ms Asmar.

Ms Sandra Porter

76. Ms Porter is the parter of Mr McCubbin and was a member of Ms Diana Asmar's election campaigns in 2009 and 2012. Ms Porter signed a statement on 20 January 2014. Within that statement, Ms Porter detailed being present at a social bar-b-cue between January and March 2013 at the home of Ms Asmar during which Ms Asmar described that she had not at that time completed her ROE test and that she (Ms Asmar) was getting 'Kimberley' to do her test. Ms Porter included that Ms Asmar directed Mr McCubbin to do the same.

77. Ms Porter further included details of a conversation which later occurred in Ms Asmar's office at the Branch between her and Mr McCubbin. During that conversation, Ms Asmar stated that 'Kimberley' had already completed her (Ms Asmar's) ROE test and Ms Asmar had directed 'Kimberley' to complete Mr McCubbin's test as well.

Ms Jayne Govan

78. Ms Govan is a Registered Nurse, former union delegate and former organiser for the Victoria No 1 Branch of the HSU. Ms Govan completed a signed statement on 16 September 2013 and described her previous long term friendship with Ms Diana Asmar. Ms Govan described the extent of that friendship as including Ms Asmar being present at the birth of Ms Govan's son in 2006. Ms Govan supported Ms Asmar during her unsuccessful election campaign for the HSU Victoria No 1 Branch in 2009 and again in Ms Asmar's successful2012 election campaign. On 29 January 2013 Ms Govan commenced employment as a 'temporary organiser' at the Branch.

79. Ms Govan included that she had been present at an industrial day at the Branch office during which a number of organisers raised the issue of ROE permits and Ms Asmar advised those present that they would not be required to complete their own ROE tests because Ms Kimberley Kitching would be completing the tests for organisers. Ms Govan included that while she had signed the relevant application forms and declarations and was aware she should have been doing her own ROE test, she did not actually receive the training nor did she complete the ACTU test. Ms Govan did however, later receive a ROE permit.

80. Ms Govan further included that she was able to identify with confidence a number of other people who did not do their own ACTU ROE tests including Ms Asmar. Ms Govan included that she had openly discussed the ROE tests being completed by Ms Kitching with her colleagues Mr Nick Katsis, Mr Dean Sherriff and Mr Sasha Trajcevski who had each commenced at the Branch at the same time as she had. Ms Govan included that the situation concerning Ms Kitching completing ROE tests for organisers was common knowledge and not something that was hidden from anyone.

Mr Alexander Leszczynski

81 . Mr Leszczynski is generally referred to as Alex and in November 2012 took up a position of Senior Industrial Officer in the HSU which was prior to Ms Asmar's election as Secretary. Mr Leszczynski provided information to the FWC in September of 2013 although he made a signed statement on 6 January 2014 largely prepared for the purposes of a separate investigation being conducted under s 331 of the RO Act wHh respect to a range of allegations relating to financial and other rule breaches by the Branch.

82. When Mr Leszczynski took up a position of Senior Industrial Officer at the HSU, he did not have any prior association or relationship of any kind, nor had he previously met any of the

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people who were subsequently elected to offices in the Branch. Those office holders included Ms Diana Asmar, Mr David Eden and Ms Leonie Flynn.

83. In his statement dated 6 January 2014, Mr Leszczynski included relevant information under the heading Right of Entry Permit Issue.

84. Mr Leszczynski relevantly included details of a conversation he had with Ms Kimberley Kitching in January 2013 during which he formed the view, based on what Ms Kitching told him, that Ms Kitching was completing Ms Asmar's ACTU ROE online test. Mr Leszczynski included that while he did not see Ms Kitching completing the ACTU online test for Ms Asmar, the circumstances and conversations suggested to him that Ms Kitching was doing the test at the time of their conversation.

Ms Peggy Lee

85. Ms Lee commenced employment at the Branch in 2009 as an Administration Assistant and continued in that role following Ms Asmar's election in December 2012. Ms Lee made and signed a statement on 15 January 2014 describing that very early in 2013 Ms Asmar had asked her to administratively arrange for the obtaining of ROE permits for organisers. Subsequent to taking on that responsibility, Ms Lee commenced a range of conversations with organisers about the ROE administrative process.

86. Ms Lee recalled that very early in 2013 Ms Asmar asked her what had happened to her (Ms Asmar's) ROE application and Ms Lee advised that Ms Asmar would be required to complete the ACTU test. Ms Lee recalled that soon after that conversation, she received Ms Asmar's Certificate of Completion and processed the application with the FWC.

87. Ms Lee was unable to state whether Ms Asmar had or had not completed her own ROE test because Ms Lee was only involved in its administration. She did recall that Ms Asmar seemed to be very pleased about having received her permit and Ms Lee recalled at a meeting that Ms Asmar was saying something about organisers needing to get their permits as soon as possible.

88. Ms Lee detailed several subsequent conversations she had with Ms Asmar about ROE permits and subsequently became aware that Ms Asmar had instructed organisers to forward emails they had received from the ACTU containing their course access passwords to the General Manager Ms Kimberley Kitching . Ms Lee understood that the only people who could access an organiser's ACTU course and tests were;

• The individual organiser upon receipt from the ACTU of their individual course passwords;

• Ms Asmar because the ACTU copied her into their return emails; and

• Ms Kimberley Kitching because Ms Asmar had instructed organisers to forward the ACTU emails to her.

89. Ms Lee recalled that it was around the time that Ms Asmar instructed organisers to forward their ACTU emails toMs Kitching that Ms Asmar kept asking her (Ms Lee) about the ROE tests and later started to get very angry that the tests hadn't been done. Ms Lee recalled a direct conversation during which Ms Asmar asked her to do the actual ROE tests for organisers although Ms Lee refused . Ms Lee is to some extent corroborated about this exchange by Mr McCubbin.

90. Ms Lee commenced recreational leave on 13 February 2013 and travelled to Hong Kong on that day before returning to Australia on 6 March 2013.

91. Upon her return, Ms Lee was provided with what she described as a bundle of ROE applications, Certificates of Achievement and ROE test results by the Branch receptionist.

92. Ms Lee described later taking the bundle of ROE documents to and discussing them with Ms Kitching. Ms Lee described Ms Kitching telling her how she (Ms Kitching) had completed

10

838

ROE tests for the organisers and although she failed the first test, Ms Kitching became very excited about achieving 100% in some of the later tests she had completed. Ms Lee included that Ms Kitching described in more than one conversation how she had completed ROE tests for organisers.

93. Ms Lee subsequently continued with the administration of the ROE applications after being advised that Ms Kitching had been the person who had completed the ROE tests for the organisers.

94. Ms Lee also described the circumstances surrounding and reasons behind her decision to later complete ROE tests on behalf of the President of the Branch Mr David Eden and an Organiser Mr Darryn Rowe.

Mr Scott Mann· lnvest-e-gate Pty Ltd

95. As indicated above. to assist the FWC inquiries being conducted, the services of an independent forensic computer analyst were engaged. Mr Scott Mann of lnvest-e-gate Pty Ltd examined the operation of the Federal online Right of Entry training course provided by the ACTU which is hosted on a Learning Management System on a platform known as Moodie.

96. The lnvest-e-gate report included that Moodie is a system well known in thee-learning sector currently used by many organisations around the world to manage their online learning and content delivery. The report included that Australian universities such as Monash and the University of New South Wales are documented users of the system.

97. The report sets out the inquiries, tests and analysis conducted by lnvest-e-gate to review the records which had been obtained and to establish the reliability (or not) of the data.

98. The report found that:

'The logs maintained by Moodie have a long history and this is a contiguous, contemporaneous record that is stored in a database that is backed up at regular intervals. Tests have been conducted and although these tests were limited they show that the Jogs recorded the correct times and dates of access as well as correctly recording what was accessed. There are numerous instances of ACTU staff accessing the system that could be corroborated to demonstrate consistent and accurate Jogging of events over a period of at least twelve months'.

'In some instances the log from the ACTU Moodie LMS indicates that tests were completed in minutes. A walk-through of the Federal Right of Entry course was performed and screen shots of the pool of questions presented in this session were taken .... the log from the 'scott_ test' account provided ... contains the data regarding the time and date tests were taken and has examples of short and longer durations, these were all caused by human interaction with the system, no additional times and dates or omissions were observed in this data. '

Summary of witness evidence

99. Ms Flynn does not provide any direct evidence about Ms Asmar's ROE application although her evidence is consistent with Ms Peggy Lee in relation to Ms Lee's communication about organisers having their ROE tests conducted by Ms Kitching and she provides an account of the information provided to her by Ms Govan in relation to Ms Asmar.

1 00. Mr Robert McCubbin's evidence includes his direct conversations with Ms As mar during she which she stated Ms Kitching had completed her (Ms Asmar's) ROE test. Mr McCubbin makes the allegation from the basis of previously being what he described as 'part of the executive group' of the Branch along with Ms As mar, Ms Kitching, Mr Donohue and others. Mr McCubbin makes the allegation from his direct discussions with Ms Asmar who advised him that organisers would not be required to complete their own ROE tests and that Ms Kitching would be completing them. Mr McCubbin concedes in his statement that he signed a false and misleading declaration for the purposes of his own ROE permit and alleges that Ms Asmar did the same. Mr McCubbin is corroborated to some extent by Ms Porter.

11

839

101 . Ms Jayne Govan's evidence includes her previous close friendship with Ms Asmar, direct knowledge that Ms Asmar did not complete her ROE test and knowledge that Ms Kitching completed the test on Ms Asmar's behalf. Ms Govan makes the allegation from the basis of previously being an organiser at the Branch and of being directly advised by Ms Asmar that Ms Kitching would be completing ROE tests for organisers and thereafter her conversations with Mr Katsis, Mr Trajcevski and Mr Sherriff during which they discussed Ms Kitching completing their ROE tests.

102. Mr Leszczynski's evidence includes his direct conversation with Ms Kitching who sought his advice about ROE issues in order for her to complete Ms Asmar's ROE test because Ms Asmar was too busy.

103. Ms Lee was one of the two key ROE staff members at the Branch and included in her statement that that although she did not have direct knowledge of whether or not Ms Asmar completed her own ROE test, Ms Kitching had directly told her that she (Ms Kitching) had completed ROE tests on behalf of other organsiers. Ms Lee also has direct knowledge of a conversation in which Ms Asmar asked her to complete ROE tests on behalf of organisers. Although she initially refused Ms Asmars proposition during a conversation witnessed and corroborated by Mr McCubbin, for a range of reasons explained in her statement Ms Lee later completed ROE tests on behalf of Mr David Eden and Mr Darryn Rowe.

104. Mr Mann included expert forensic computer advice about the Learning Management System provided by the ACTU on a globally utilised platform known as Moodie. Mr Mann's report provides evidence that based on the testing of the system and analysis of the data, the ACTU logs recorded the correct times and dates as well as correctly recording what was accessed. In addition, testing confirmed that those instances where the data recorded ROE tests being conducted in periods of 'minutes' were caused by human interaction with the system and no additional times, dates or omissions were observed.

Ms Asmar's account

105. Ms Asmar included that she had previously held a ROE permit when employed by the Branch as an organiser between July 2004 and May 2007. Ms Asmar included that she had retrieved a copy of her application for ACTU on line training and an email from the ACTU providing her with a password for the ACTU training and ROE test. Ms Asmar included that she recalled before doing the test she was given some material by Ms Lee and she had a look at the relevant provisions of the Act. To the best of her recollection, Ms Asmar answered all the questions in the test correctly and on concluding the test, she was able to print out a Certificate of Achievement.

106. Ms As mar further confirmed signing an application for a ROE permit and signing a declaration which contained the details of the training she received. Ms Asmar confirmed that the contents of her application and declaration were true and correct Annexure 2 (i).

107. Documents referring toMs Asmar's account include:

• The Branch ROE applications made on her behalf which contained a declaration signed by Ms Asmar and Ms Barclay;

• A statutory declaration signed by Ms Asmar and dated 26 November 2013 declaring that she was the person who had received the training and completed the ACTU ROE test;

• The Branch response dated 26 November 2013 which included reference to Ms Asmar denying the allegations put by the various witnesses; and

• Table 1. Documents including security records and an email record.

Analysis of the ACTU data and available materials

108. Detailed analysis has been conducted of all of the available materials including throughout this document.

12

840

109. The evidence is that Ms Asmar was elected to the position of Branch Secretary on 21 December 2012 and immediately commenced exercising control over every aspect of the Branch including by appointing Ms Kimberley Kitching as the General Manager and commencing to appoint organisers and other temporary staff. At the same time, Ms Asmar was facilitating the departure of staff who had been appointed under the previous leadership.

110. Almost immediately, Ms Asmar identified an urgent need to address ROE permit issues and appointed Ms Kitching to oversee Ms Peggy Lee to put in train a process for obtaining ROE Permits.

111 . The evidence is that Ms Asmar advised a number of witnesses that organisers would not be required to complete their own ROE testing and Ms Kitching would be completing the ACTU testing on their behalf. That evidence is disputed by the Branch including and in particular, by Ms Asmar and Ms Kitching.

112. There is a significant body of evidence which indicates that Ms Asmar was not the person who accessed her ACTU account at AEDT 1.08 p.m. on Friday 25 January 2013 and completed the ROE test. Each of the relevant witnesses have been referred to above including witnesses who identify Ms Asmar as being a person who did not complete her own ROE test and that Ms Kitching completed the test on her behalf. The inquiry notes that there were no materials provided by the Branch relating toMs Kitching being provided with Ms Asmar's ACTU account although there is an abundance of material about Ms Kitching's access more broadly to the ACTU passwords of a range of office holders and employees. The evidence of Mr Leszczynski is particularly relevant on this point.

113. The reliability of relevant witness' evidence in this matter has been determined in the circumstances of these inquiries in so far as findings against other Branch office holders and employees is concerned. The witness' evidence has been thoroughly and carefully reviewed in terms of its credibility and reliability. The inquiry has indicated above that if the evidence of Mr McCubbin, Ms Porter, Ms Govan, Mr Leszczynski and Ms Lee is accepted, the account by Ms Asmar must be an intentionally false account.

114. Much of the witness evidence, including and in particular any allegation that she did not perform her own ROE test, is disputed by Ms Asmar on the basis that she has maintained that she was the person who received appropriate ROE training and that she was the person who completed the ROE test.

115. The ACTU data indicates that Ms Asmar's ROE account was accessed for the fi rst time at AEDT 1.08 p.m. on Friday 25 January 2013 and that her ROE test was subsequently completed in 52 minutes and 42 seconds achieving 30 out of 30 for a 1 00% pass rate.

116. Ms Asmar provided a declaration for the purposes of her ROE application and later provided a statutory declaration declaring that she was the person who undertook the training and ROE testing.

117. The only materials provided by the Branch in relation to Ms Asmar's movements and whereabouts on 25 January 2013 are provided in Table 1. above. In particular, if they exist, mobile phone records which might provide objective materials about her whereabouts on 25 January 2013 have not been provided by the Branch.

118. Further information was received at the FWC on 12 March 2014 from Ms Jayne Govan indicating that Ms Govan attended at the Branch office at some time in the morning of Friday 25 January 2013 and met with Ms Asmar prior to commencing her (Ms Govan's) employment as an Organiser at the Branch the following Tuesday (after a public holiday on the Monday). Ms Govan recalls attending at the Branch and that she had her young son with her.

119. Further information was also received at the FWC on 12 March 2013 from a Ms Sue Hayes who was employed at the Branch on Friday 25 January 2013 although it was her last day of employment there. Ms Hayes recalled Ms Asmar being present at a morning tea gathering at around 11 .00 a.m. - 11.30 a.m. as a farewell to Ms Hayes.

13

841

120. Ms Hayes was not able to state whether Ms Asmar was at the Branch office in the afternoon of 25 January 2013 or not.

121 . The inquiry noted the absence of any diary entry or mobile telephone records relevant to the meeting alleged by Ms Govan to have occurred at the Branch office on 25 January 2013 or the morning tea forMs Hayes.

General proposed findings

122. The inquiry has carefully considered all of the available materials, including Ms Asmar's account in her statutory declaration and supporting materials, the witness accounts, all of the ACTU data and each of the circumstances surrounding the application by the Branch and the subsequent issuing of a ROE permit toMs Asmar on 31 January 2013. The inquiry has identified sufficient evidence on balance to substantiate the following :

a. Branch Junior Vic President Ms Rhonda Barclay made a declaration as a COM member which was signed and dated 29 January 2013 declaring to have made proper inquiries (including inquiries of the proposed permit holder Ms Asmar) and declaring to having reviewed the records of the organisation;

b. Ms Barclay's declaration included that the proposed permit holder (PPH) had received appropriate training about the rights and responsibilities of a permit holder including that the PPH had attended the ACTU Federal Right of Entry online training course completed on 25 January 2013;

c. Ms Asmar made a declaration which was signed and dated 29 January 2013 claiming to have received appropriate training about the rights and responsibilities of a permit holder;

d. Ms Asmar made a statutory declaration dated 25 November 2013 in which she declared that she was the person who received the relevant training and completed the ROE test;

d. The inquiry has determined that Ms Asmar did not receive such training on 25 January 2013 about the rights and responsibilities of a permit holder;

e. The inquiry has determined that the General Manager of the Branch, Ms Kimberley Kitching, was the person who actually received the ACTU online training and completed the Right of Entry test associated with that training on 25 January 2013 on behalf of Ms Asmar;

f. The inquiry has determined that the declarations by Ms Asmar therefore contained an intentionally false and misleading statement;

g. The inquiry has determined that the intentionally false and misleading statement in the declaration by Ms Asmar dated 29 January 2013 was that she had 'received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry on line training course completed on 25 January 2013';

14

842

Form F42 Application for an Entry Permit

IN FAIR WORK AUSTRALIA pn'~r use u;;r;----~

~VA M~tter No.: __ _j :1\~,

0, \Vy.- -'f. ' APPLICATION FOI< AN ENTRY PERMIT

Fair Work Act 2009-s.S 12 ,.., •·

eo"<o REC~VED ··1'\~, an isa tion o r branch '"

~~----~~~:~~~~~~~~~------------------------~~ ~~~~ ~

Heahh Services Union ~ q, 'v Organisation: I I Branch:

---- 11. <o/" Victoria No. 1 Branch '"'" 1:1 \\ ~

Address:

[ Sub~J·b:

, ntact person:

208-212 Park Strt:et

South Melbourne

Diana Asrnar

1300

Slatt::

Mobile:

VIC Postcodc: nos

Jephonc:

x: 9341 3334 Entail: diana.asmar@hsuvic.asn.au

1. The Applicant is: f X j registered under the Fair Wo,.k (Regisiered Organisations) Ac:t 2009;

[ ] transitionally recognised under Schedule I to the Fair Work (Registered Organisations) Act 2009;

l ] a State-registered association recognised under Schedule 2 to the Fair Work (Registered Organisalions} Act 2009.

2. Application is made pursuant to s.S12 of tile Act for the issue of an entry permit to the followin g person:

Name:

T he proposed permit hold er is:

OHicc or Position held :

Diana Asmar

[X] an Office Holder [ ] an Employee

Secretary

Comm ittee of man agcmcnlmembcr mal<ing application:

Date: 1_ C-i - 1 - 2 G I~

Sig na ture: ~v· I 0rz tl CJ'- "'"1!~(/t... 1 J 0'-c.c.A:-"t.__

Name: 12. 1~1 I.Jt~r;l) 1:> fJ I'L.<. ,_fl. -

CapacityJ I>osition: '" , 1 .~) 1r 1 ) v.n. v • (. ~ I (.]_ ,.. ~.:..."::...'~v,'-'"1:...__ _ _ _________ ---.J

Declaration by member of committee of management

l, (t 'rl Ot -..J f) ."1 ~A {(_,LL. A ...-; .

843

Declare That. having made proper inquiries (including inquiries of the proposed pt:rmit holder) and l1aving reviewed the records of the organisati on, declare that the proposed permit holder is a fit and proper person to hold a right of entry permit in thuL to the best of my knowledge and belief. the proposed permit holder:

(a} has received appropriate training about the rights and responsibilities of a permit holder, namely: The ACTU Federul Right of Entry online training course completed on 25 January 2013. (Please see Attachment I)

(b) has never been convicted of' an offence against an industrial law;

(c) has never been convicted of an offence against a law or the · Common wea lth, a State, a Territory or a foreign country. involvin g:

(i) entry onto premises: or

(ii) fraud or dishonesty; or

(iii) intentional use or violence against another person or intentional damage or destructi on of property;

[Note: s. 513(2) /ws rhe e.ffecl that certain of/('nces need not he di.Klosed.l

(d) has never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the ofJicial nor has any other person been ordered to pay a penalty in respect of such acti on;

(e) has not bad revoked , suspended or been made subject to conditions. any permit issued under Pm1 3-4 of the Act or a s imilar law of the Commonwealth (no matter when in force) ;

(I) has not had cancelled. suspended or had imposed conditions on a right or entry for industrial or occupational health and safety (OilS) purposes, by any cow1, or other person or body, under a State or Territory industrial law or an OHS law; and

(g) bas not been disqunl ili ed, by any court, or other person or body, under a Stale or Terri tory industrial Jaw or an OHS law, from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law.

l natr: 'J._'"l- i- 1....:.,-')

Signature: 6U...-c'~-'i--elt,_ (}':) cr..J.~'-;; Name: (2..N cH--. o ,-:) f.'~'i r<..L. t... J~ '7'

Cnpacity/Position : ." f!..t t./, t · "· 1--::> tf u --~-~---~A~o~~~~·~~~{~~~-·~"-L------------------~

Note: Adjust dcclamtions as appropriate to rcOect the f~1cts .

Declaration by proposed permit holder

I, Di11na Asm<lr

••

844

Secretary

Declare That :

(a) J huve received the training about the rights and responsibiliti~s or a permit holder referred to in the declaration above;

(b) I have ·never been convicted of an otlencc against an indu~tria l law;

(c) I have never been convicted of an olTencc against a law of the Commonwealth, a State, R Territory or a foreign country, involving:

(d)

(c)

(i) entry onto premises; or

(ii) fraud or dishonesty; or {iii) intentional use of violence against another person or intentional

damage or destruction of property;

I have never been ordered to pay a penally under this Act or any other industrial law in relation to my action nor has any other person been ordered to pay a penalty in respect of such action;

I have not had revoked. suspended or been made subject to conditions , any permit issued under Part 3-4 of the Act or a similar law of the Commonwealth (no matter when in force);

(f) l have nol had cancelled, suspended or had imposed conditions on a right of entry for industrial or occupational health and sMcty purposes, by any comt, or other person or body, under a State or Territory industrial Jaw or an OJ IS law; and

(g) l have not been disqualiiied, by any comt, or other person or body, under a State or Territory industrial law or an OHS law. from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that Jaw.

Oatc: 7 c1 fl/Zp I 3 Signature: <'.G-G--.~~ Name:

C:apacity/Pos i tio n:

Diana Asmar

Secretary

Not..:: 1\dj~tsl dcclarn11ons as 21ppropn<ttl' to reOect the facts .

845

mil} organising centre

TUEF /he union education foundation

CERTIFICATE of ACHIEVEMENT

This is to ce1iify that

Diana Asmar

has completed the course

Federal Right of Entry

January 25, 2013

approved training

FAIR WORK ACT 2009

Jennifer Evans, Director

Certificate Number QIPFkheWKJ

ACTU Educarlon Inc. lrodln£ •• ACTU Orga,.,is•ne. EduC<Jiion •nd C.lmP•'£" Centre 3&~ Queen Strce l Melbourne VIC 3000 ASN: 88 219 345 185 RTO Code: 414J PHONE: 039664 7360 FAX: 03 9670 0837 !MAIL: orRctnll c@a ctu.ors.•u WEB: www .actu .org.au/orgcenlre

846

I, DIANAASMAR of

Commonwealth of Austraha

STATUTORY DECLARATION Statutory Declarations Act 1959

the Stale of Victoria, Branch

Secretary, make the following declaration under the Statutory Declarations Act 1959:

I am the Branch Secretan; o'f 'lhe Victonan No. 1 Branch of the Health Services

Union. I make this s'latutory declaration in response to a request from the Fair Work

Commission (FWC) that I make a staiutory declaration in relation to the

Circumstances in which I applied for the issue of a right of entry permit I also make

this stc:ltl.!tory declaration in response to·

(a) allegations made by the Ass1stant Secretary, Leonie Flynn, in a document

dated 4 September 201 3 under the heading "Issue No. 13",

(b) allegations about right o'f entry permrts made by Jayne Govan in a

s'latement dated 16 September 2013;

(c) allegations about right of entry permits made by Robert McCubbin in a

statement dated 13 September 2013; and

(d) allegations about right o'f entry permits made by 2 confidential sources.

2 By way of background, I became Branch Secretary on the afternoon of 21

December 2012 wh1ch was the second last business day before Christmas.

Elections for the positions in the newly re-established Victorian No 1 Branch had

been delayed by reason of an election inquiry I instigated in Federal Court when it

ernerged that the membership records showed that I was not a fin;:;nciai member

with 12 months standing at the time nominations closed. The findmgs of the court

in relation to the manipulation of the membership r!icords are contained in the

judgement which is reported as Asmar; in the metler of an election for an office in the Victorian No 1 Branch of the Health Services Union (No 3) [2012] FCA 1289.

3 When I took over as Branch Secretary, most of the people employed by tt1e Branch

had been appointed by the former Marco Bola no leadership which had been in

place prior to the appointment of 1he Administrator in June 2012. Some employees

had been employed by the Administrator.

Because of the close political alignment between many Branch employees and the

Bolano team, I was very concerned on taking office that these employees would not

be loyal to me and would, in fact. undermine my leadership. There was evidence

that some Branch employees had been particularly campaigning for the former

leadership, in particular, email and telephone records indicatecJ that employees had

been in contact with people within the Bola no campaign team and others had been

seen. in working hours, scrutineering for the Solano team during the count of the

votes. Through early January 2013, I met with most of the exisling employees of

"'""""'~~· Branch and, after putti~l =reed lo resign theor

M:483'00~ 4 fJS ru~ 847

2

employment. As a result o'f the departure of former employees of the Branch,

during January 2013, there were no Branch officers, other than Ms Flynn, with right

of entry permits and only 3 employees with right of entry permits. I subseqllently

started engaging organisers on a temporary basis to replace the people who had left.

5 One employees of the Branch I decided to retain was Peggy Lee, who was

employed as an industrial assistant. At the time Ms Lee assured rne that she had

not been involved in the Bolano campaign and I had not seen any evidence that she

had. On this basis, I retained Ms Lee's services. She was familiar with ·the process and offered to assist. She also told me that. under the previous leadership, the

industrial organisers were Lmdertaking right of entry testing, they were given a lisl of answers lo "the questions in the test. I asked Ms Lee to put in ·train, as a matter of

ur.gency, the process for obtaining the right of entry permits. I was particularly

conscious of the fact that many of the people I was seel~ing to recruit as organisers had. no training. At about the same time that I spoke with Ms Lee, I also spoke to

Kimberley Kitching who was tt1en temporarily employed as General Manager, and

asked her to ensure that Ms Lee completed the process.

6 In my case, I had previously held a right of entry permit when I was employed by

the No. 1 Branch as an organiser between July 2004 and May 2007. I was

subsequently employed at the Victorian/Tasmanian Branch of the Transport Workers Union as an Organiser during which time I also held a right of entry permit.

In relation to my application for an entry permit, I recall going through the process

with the assistance of Ms Lee. In this regard, I have retrieved a copy of my application for ACTU online training and an email from the ACTU providing me with

a password for the ACTU training and right of entry test. The application for training

and the ACTU's response are Attachments A and B. I recall that before I did the

test I was given some material by Ms Lee and I had a look at the relevant provisions

of the Fair Work Act. When I logged on I look~d at the training material and then

proceeded to lJrtdertake the test. To tt1e best of my recollection, I answered all the

questions in the test correctly On concluding the test I was able to print Ollt a

"Certificate of Achievement".

7 I was subsequently given, by Ms Lee, a document headed "Application for an Entry

Permit". A copy of this document was sent to me by FWC. I believe that Ms Lee

had already inserted the details of the Applicant on page 1, paragraph a of the

declaration and attached my certificate of achievement. The application requires a declaration by a member of the Branch Committee and a Declaration by me. The

·first Declaration was signed by Rhonda Barclay who is a member of the Branct1

Committee. I signed the second Declaration. I con-firm that the contents of my

Declaration are true and correct.

8 In relation to other applicants, Ms Lee, to the best of my knowledge, prepared all

the applications to the ACTU for on-line training and FWC applications for entry

permits for me to sign. I signed the declarations on the basis that the application for

entry permits included a certi·flcate of achievement and on the basis of answers

M.4832006_3

M:483ZOOn. ~ OS

848

3

given to me by the individuals when I interviewed them as part of the employment

process.

All~ations made by Leonie Flynn

9 I have set out below each of the factual allegations made by l\lls Flynn, together with

my response.

Allegation 1:

"A colleague told me that she had heard Ms Asmar having a conversation wilh

Kimberley Kitching during which Ms Asmar told Ms Kitching lhal the right of entry

permit lest needed lo be completed as a matter of urgency. "

I cannot, of course, comment on a conversation w1th an unnamed person other than

to say that it was certainly a matte r of urgency in January/February 2013 to have

right of entry permits issued to newly appointed organisers. As noted above, I did

discuss with Ms Lee and Ms Kitching the need for Branch employees to obtain entry

permits urgently.

Allegation 2

"My colleague told me that Ms Kitching then went and completed a number of right

of entry permit tests for organisers of the union."

Response:

Prior to reading Ms Flynn's allegation, I had no lmowledge of this allegation, or any

reason to believe that Ms Kitching had completed right of entry permit tests for

organisers. Since receiving this complaint, I have not asked Ms Kitching for a

response but have, instead, instructed the Branch solicitors to put this allegation to

Ms Kitching and seek her response. Ms Flynn never came to me with an allegation

that industrial organisers were not doing their right of entry tests.

Allegation 3:

"My colleague told me that Diana Asmar asked her to complete a right of entry test

for a no/her union organiser but my colleague had refused to do that because she believed it would be breaking the law and she would not do that."

Response:

I deny this allegation. In particular, I deny telling any employee of the Branch to

undertake a right of entry test for any Union organiser or Branch Officer and, it

follows, I did not put any Branch employee in the position of refusing my request.

M:4832006_3

M:~832U06_ 4 OS

849

4

Ailegatio1111 4:

"I do know that Dee Mcintosh completed Tim Rowley's right of entry permit test because Tim Rowley told me that she did. I had a conversation with Tim about 2 months ago as I was aware that Tim had a right of entry permn issued in April 20·13. I mentioned that my right of entry permit was expiring in November 2013. I asked

Tim if the test was difficult and I also asked him if he had received the test answers

from anyone prior to the test. Tim laughed and said "I didn't do mine". I said "Who did yours?" 1-Je said "Dee die/ mine. ""

Response:

Prior to reading Ms Flynn's allegation, I had no knowledge of this allegation. or any reason to believe that Ms Mcln!osh had completed righl crf en!ry permi·c ·tesls ·for Mr

Rowley Since receiving this complaint, I have not askecl Ms Mcintosh or Mr Rowley for a response.

Allegation 5:

"She sat mine, Nick's, Dean's, David Eden 's. Not sure about others. Lee, I think and yes, it was Kimberley. I think she did Rob's too."

Response:

Ms Flynn is alleging that Ms Govan, in a text message sent to her. alleged that Ms

Kitching undertook her right of entry test. Prior to reading Ms Flynn 's allegations, I

had no reason to believe that. no one other than Ms Govan had undertaken the

test. My response to the other claims attril::>uted toMs Govan is set out below.

Allegation 6:

"She would of [sic] done Diana's."

Response:

As noted above, I did my own right of entry test.

Allegation 7:

"Jayne Govan was previously employed by the HSU as an organiser and she is clearly saying tl1at Kimberley Kitching actually completed her [Jayne's] right of entry permit test in March 2013."

Response:

My response to this allegation is dealt with below.

M:4832006_3

M·4832006 _4 05

850

5

Alflegation 8:

"Jayne Govan was previously close friends with Diana Asmar .. .. Jayne's employment was terminated 2 weeks prior to her 6 month probation period on the basis of alleged competence issues. "

Response:

Ms Govan commenced employment in la"te January on a temporary basis. She was

appointed on an ongoing basis in April 2013, subject to a 6 month probation clause.

It is, there-fore, not true that her employment was terminated 2 weeks before the

encl of her probation period .

.. 1 0 Allegation 1

"At an industrial day at the HSU office . ... in February or March 2013 . .. Diana Asmar told all of us present that we would not be required to complete our own rigfli

of entry tests and that Kimberley Kitching would be completing the tests for us."

Response

The reference to an "industrial day" is a reference to days when meet ings of all Branch industrial staff are conducted at the office. In February and March 2013 there were industrial days on 25 February and 18 March . I note that the certificate

of completion issued for Ms Govan is dated 15 February 2013. I agree that

industrial organisers were, at the t ime, experiencing difficulty gaining access to

workpla ces because they did not have right of entry permits. In response to these

concerns I told the industrial organisers that they should get their right of entry permits as soon as possible ancl that Ms Lee would assist them. I emphatically

deny that I said that Kimberley Kitching would sit the right of entry tests for

organisers; her only role was to monitor the progress of industrial organisers in obtaining their right of entry permits so that we would know who had one and who did not.

Allegation 2

"I knew that J should have been doing my own right of entry tests"

Response

I am sure that Ms Govan was fLJ IIy aware that she had to do her own right of entry

test. When I signed her right of entry application it was my belief that she had done her own right of entry test. I am surprised that she now says that she did not do it.

At no point did Ms Govan raise with me any allegation that industrial organisers were not doing their right of entry tests.

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Ailegation 3

"ll was my understanding thai Diana was organising for Kimberley Kitching to sit the rigf1t of entry tests for the organiser because, having regard to our workload, we really didn't have lime to do them."

Respolill:se

It follows from my response to allegation 1 that I was making no such arrangements. I do not agree that Ms Govan's workload would have been a 'factor in her not doing her right of entry 'test - prior to Ms Govan receiving her right o'f entry permi'l, she was mainly working around the office which meant that she did not have an excessive workload.

AUegation 4

"I can say with confidence thai the following people did not do their own lesls:

• !Vick Katsis;

e Dean Sheriff

Diana Asmar;

• Saso Trajcevski-Uzunov;

• David Eden; and

• Rob McCubbin."

Response

Prior to seeing this allegation, I had not previously heard any allegation that either I, or the other people listed, had not undertaken the right of entry testing . As stated above, I undertook my own test. As to Mr Katsis, Mr Sheriff ancl Mr Eden, I have every confidence that they have, indeed, undertaken their own right of entry test. As to Mr Trajcevski-Uzunov I have no reason to believe that he did not undertake the test, he has, however, ceased working for the Branch .

Allegation 5

"Diana actually boasted that Kimberley got 99 or 100% when Kimberley completed Diana's test."

Responsa

I did not boast that Kimberley completed my test. I did say to a number of people in

the office that I got 1 00% in the test.

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7

A n!egation 6

"The next thing that occurred was that I received my right of entry permit trom the industrial assistant. "

Response

I assume that Ms Govan is referring toMs Lee as she was the only industrial

assistant.

1 'I AOiegatool1l 1

"In about April 2013, I recall having a discussion with Diana in her office during

which Diana told me that Kimberley Kitching had done her [Diana 's] right of entry on-line test. Diana told me that she was going to instruct the rest of tl7e staff at the industrial day that Kimberley would be doing her right of entry tests, including mine."

Response

I note, at the outset, that the timing of this alleged conversation , that is, that it

occurred "[i)n about April 2013", does not line up with the date on Mr McCubbin's

certificate of completion which is 15 February 2013 (as advised by Mr Enright in his

letter to me of 25 September 2013). I assume that Mr McCubbin's righ·! of entry

permit would have been issued prior 'to April 2013. In addition, I note that there was

no industrial day in April - after April the first industrial day was on 13 May 2013. I

emphatically deny that I told Mr McCubbin that Ms Kitching had done my right of

entry test. Similarly, I emphatically deny that I told Mr McCubbin , at any time, that I

was going to direct industrial staff that Ms Kitching would be doing the right o-f entry

tests, including Mr McCubbin's.

A llegation 2

"Also in April2013, I attended an industrial day at the Branch .. .. It was at that

meeting that Diana Asmar directed the industrial staff that all right of entry permits would be done by Kimberley Kitching. I took tl1is to be a specific direction from the Secretary"

Response

Aga1n , I emphabcaliy deny giving such a direction. Othe rwise I repeat my respon~e

to the previous allegation.

For the reasons set out above, there is no basis for any understanding on the part

of Mr McCubbin that Ms Kitching would do right of entry tests on behalf o·f others or

that this was done to save time for industrial organisers.

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8

Allegation 3

"I understood Kimberley would be doing the right of entry training and tests because

of the workload of organisers, it would save them time if Kimberley did /he tests and

the organisers could focus on industrial matters. "

Response

From what I have said above, there was no basis for Mr McCubbin to have any understanding that Ms Kitching would be l!ndertaking right of entry tests for industrial organisers. Further, as sta-ted above. I do not agree that industrial organisers, prior to receiving their right of entry permits, had excessive workloads.

Allegation 4

"Both Diana and Kimberley gave direction to Peggy Lee to do the rigf'1 l oi' entries;

Peggy Lee refused to follow their directions."

Response

I do not agree ·that I gave Ms Lee a direction to do right of entry tests. As stated above, I did ask Ms Lee to do all the necessary paperwork associated with arranging the tests and applying for entry permits. Ms Lee did not refuse to follow my direction.

Allegation 5

"/ remember signing the form Peggy Lee presented to me which I returned to Kimberley."

Response

It is not clear to me which form Mr McCubbin is referring to . It is consistent with the process I have described that Ms Lee would have presented Mr McCubbin with a

completed application for an entry permi'! - the applications to the ACTU for on-line training. that I have reviewed. do not have the signature of the person seel<rng the

training . I have no knowledge as to whether Mr McCubbin gave his completed application for a permit to Ms Kitching .

Allegation 6

"/ am certain that Kimberley completed the right of entry test for a number of people

and there was no secret about it, everyone in the office knew about it. Kimberley

did the tests for:

•

..

..

M:4832006_3

M 4832006_ 4 OS

Diana Asmar;

David Eden (the President);

Nick Katsis;

854

9

Jayne Govan;

myself,·

Moira Saunderson;

Peter Lazarevski;

• Jack Massa;

Wael Hassan {who has resigned);

Saso Trajcevski-Uzunov"

Response

My response in relation to myseH, Mr Eden, Mr Katsis, Mr Trajcevski-Uzunov, Ms

Govan and Mr McCubbin is as set out above.

In re lation to Ms Saunderson, 1\/lr Lazarevski, Mr Massa and Mr Hassan, prior to

reading Mr McCubbin's statement, I had not previously heard any allegation that

they had not undertaken right of entry testing.

Allegation 7

"Diana told people not to worry about specific rights and responsibilities when

accessing sites and she did not seem to think there was a problem with it.

Response

I deny encouraging industrial organisers to disregard their specific rights and

responsibilities. To the contrary, I emphasised the need for industrial organisers to

undertake the training and obtain their right of entry permits. In any event, Mr

McCubbin, as the lead organiser, was directly responsible for ensuring that industrial organisers acted appropriately.

Allegation 8

"My other concern about people like Nick Katsis, Moira Saunderson, Peter Lazarevski, Jack Massa, Wael Hassan and Sasha is that none of them had any experiencing in accessing worl( sites. People like me, David Eden, Diana herself and a few others at/east had experience and knew what we should and shouldn't do when using the right of entry permits."

Response

It appears Mr McCubbin is claiming that the failure to undertake right of entry testing

was more serious insofar as it related to the less experienced indLIStrial organisers.

Frorn my perspective, it was important ttlat all industrial organisers undertake the

right of entry testing regardless of their level of experience. At no point did

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10

Mr McCubbin ra1se wrlh me any concern on his par( that industrial organisers were

not undertaking ·their right of entry tests.

The ConfOdentoal Sources

12 I have read the allegations made by 2 people identi'fied only as confidential Source

One (CS1) and Confidential Source Two (CS2) . CS1 repeats the allegation thai

Ms Kitching did my right of entry test. As stated above, l deny this allegation. The

other allegations made by CS1 and the allegations made by CS2 are not matters

abou! which I have any knowledge.

. !Ylrv( ~ r,._ [)ecia~red at in the Stale of

Before me

............... ...... ·;_.:..;.;-- .. . . ~~~ ..

S~naAsmar

----- ~ ..... ~ .................. ............ ..

Victoria lhe 2<; day of 1\0.;'> ..... ~2013

Signature of witness Qualification to witness

· .... · .... · .. · .. · .. · · .... · · .. · · · .. · · · .. ·-DAVID ·SHAW ...... ... · .... · · .... · · · · · Full name of witness ~---~~

..... ..... ... .. .. .. .. ......... .. .. .... ~i~l. ~~.E1 m~ooi~ .of.tte . .. ..... ... .. .... . . l~al .P,Ofli5Sion Act 2004.

Address of witness

M.4832006_3

lvl.~83200~_4 OS

856

M:S007R49_l OS

STATUTORY DECLARATION OF

DIANAASMAR

ATIACHMENTA

857

Peggy Lee

Subject: Attachments:

Tuesday, January 8, 2013 10:59 AM online_learning@actu.org.au Application - Right of Entry Application Form - Diana Asmar.pdf

Dear ACTU,

Please find attached the application form for the right of entry course.

We request the invoice to be sent to us for payment.

Should you have any queries, please do not hesitate to contact me.

Kind Regards, P<>'lgy

Peggy Lee Industrial Assistant Health Services Union Victoria No . 1 Branch 208- 212 Park Street South Melbourne VIC 3205 ph : (03) 9341 3352 fax:(03) 9341 3334 email: pegqy. lee@hsuvic.asn.com

p.~ Please consider the environment before printing this email

1

858

COURSE APPLICATION FORM ONLINE FEDERAL RIGHT OF ENTRY

TUEF

First Name (s) & Surname: I Diana As mar I 0.0.6: 18) F 0 M

HomeAddress: ~~~~~~~~~~~~~~~::~~~~~iiiiiiiiii(;::;::::::::::::::::J Home Phone: ~(03} 94846262 Mobile:

Email ) I dianatilsmar@hsuvic.as~au dt.\CA('?\, {AS;('/\[A/ l9--\-?L?ll\C.. .. &t.Sn -~0 Are you of Aboriginal or Torres Strait Islander origin? 0 Yes 18) No Language Spoke at Home: I English

Employer Name: I Branch? I Victoria No. 1 Branch

Position:

Work Address:

Work Phone:

Union I Employer Name: I health services union victoria Branch: 2 1

Postal Address: I 208-212 Park Street, South Melbourne

Name:

Signature:4

;:i~fit!Jiji'{lffi.~~1riF.ie~~HT~~~~eib\ixFiiilt::iO~~{cl~~~ifLC(;rt:asfion1l#o,v9ur.~pl~ii:s·ar~~-~f·'ridJJStrY1~ov·ef.iiet<l!lnto'h ernplil\'ebt\·~;::~ ''tP)t!iE!:m~··· ·· · ;vriu.~i~!ltlv.~otk\f.o.r::(De.t~~tes~m_lii;~;_!!!if:o~'lTla.lio~:J!i:colle~P.~o!.$.il5tlcaJi/:feP.!J.rt.i!l~PuOir;;ses-' · ;· ~- · ~·~ ... ··: ':j 0 Agriculture, Forestry & Fishing I 0 Mining I 0 Manufacturing I 0 Electricity, Ga~. Water & Waste Services I 0 Construction I 0 Wholesale Trade I 0 Retail Trade 10 Accommodation & food Services I 0 Transport, Postal & Warehousing 10 Information Media & Telecommunications 10 Finoncial & Insurance Services I 0 Renll!l, Hlrine & Real Estate Services I 0 Prol essionill, Scientilic & T edt. Senoices I 0 Administrative & Suppon Services I 0 Public Administration & Safety 10 Education & Tr.~ining 118l Health Care & Social Ass1Stance 10 Al1s & Recreation Services 10 Other Services

~~9i\i!PiJ.fu,i.!SKI~! ·f~~~~ert~~'e.~~~~ef:aiti~q~::)iiiu,.~t!st· hav:c ;a~c~to:a .c(!~p~ter and~fti!!.'1~~7J11~t,and~ ~e· ~~p~t~?J:':T~j :;u~l!'!gtthel'll~.:.c.o'!IP)~~5.~!'!'0.g~~i!!lt.!es. .. .co.·.:,;:_·_. _ _ : .: •.'.. _ •· : •..• . -. .. ~ -- ..... _, · :.;L~"':i:.;' 'l

1. Do you have access to a computer? 0 Y 0 N 2. Do you have acces.s to the internet? 0 Y 0 N

3. How do you rate your computer skills? 0 Re quire Assistance 0 Basic 0 Advanced

4. Where do you intend to complete work for your course? 0 Home 0 Work 0 Combination

Tota l Payment: I $80.00 (GST inclusive) per participant

Cheque Enclosed: 0 Yes 0 No Please ensure cheques are made out to TUEF

Credit Card Type: 0 MasterCa rd 0 VISa Please note we DO NOT accept Diners I AMEX Card Number: r-1 ----,----:y:l;::,__r--..-1 ~~-,--~ --r-1-rl.........;;;;.;~...,~ -rl-,-1 --r--r-.--. Expiry Date · j I I Name on Card: I I Signature: • l

Submit to Course Administration, TUEF, Level 4, 365 Queen Street, Melbourne VIC 3000 Fax: 03 9670 0837 I Scan & Email: online_learning@actu.org.au

A TAX INVOICE WILL BE SENT TO THE BILLING ADDRESS ABOVE

1. All correspondence will be sen t to this email address- plecse provide your .l!i!D email address rather than generic office email address as our online learning system can only recocnise one unique em<~i l address per user. 2. Branch must be specified if employed by union. 3. Completing this ~ction &ives ACTU OrBanising Centre permission to aswe a tax invoke to the Union 1 Employer authorised. 4. If filhng in electronically, this application must bf prjnted and signed prior to submission. 5. Copy of course confirmation will be sent to this email address. Onhnc Tt~lntnr Fus & RelyndsPplrcy; F~b are due and payable al recistration. Rea~ltalion Is consllletod complete once particip;lnts have boon ossigned theor User N~me and Password rot loJcingon to ihe system. No refunds, wa•vers or transfers can IN! niven once a participant has be on auianed • User Name and Paosword.

Last Modilied: May 2012 I Autho•iscd By: Je1111V Evarn 1 Pace 1 oil

859

M:5007849_1 OS

STATUTORY DECLARATION OF

DIANAASMAR

ATIACHMENT B

Page 2

860

From unknown Page '2rl Date 16/09/2013 2 2!:•. 25 PM

McCubbin Ropert John

States:

Back~rrou;nd !

1. My full name is Robert Jo;McCubbin aud 1 am not currently employed. l have

been a long te'f member of the H th Service:; Union in Victoria N o. 1 Branch . I first

became a.mer~ber of the union roua y twenty years ago and since that time l have

performed n rarge of roles. The rotrrs 1 have performed include shop steward, branch

Committee of~ement membeir as nn organiser and Branch Assistant Secretary.

2 . l t was 4bou1 2002 that I firstFet Diana Asmar wbClJ 1 was the A ssistant Secretary of

the union. I was introduced to Di4. and David Asmar by Jeff Jackson who was the

Secretary at th~ tiroe. Jeff i.utroducep Diana to me as the person who would be taking over

my role in the furore because 1 was at loggerhoods with Jeff about the way union funds were

being spent irujppropriately. I 3. I.n 2009 I lefl the union due tp a motor cycle accident I had in which I was seriously injured. In 20~9 I returned to the union and became a member. Di.ana approached me and

ac;ked me ttv ~1p0rt her in the upcoilim,g electiou b--...cause I was well known and popular

~ong th.e ro~bers. Di~ offeredpe the role of ~ssistant Secretary if she was successful. D1ana had a ptfson runrung on her ttcket as the Asststant Se<:reta..)' but the deal was that the

person would rjesign if they were eli1 ted and I would take over the role ac; Assistant

Secretary. ~

4. J suppt:oo Diana by going ut to hospitals with her, going door knocking with her

and a!Kowin.g tfY rurme to be used o~ documentation to gather support

5 . Din:llll y.ras not successful at ~t election and I resigned from the union over the

hraucll being amalgamated which ±nsidered to be illegal.

6. 1 did n~t hear fro:m Diana fi the next couple of years and although 1 tried to contact

Diana a numbt}r of times, I was uns ccessfuJ and sh.e would not return my calls. ft wa.." 201 2

that Diana contacted me again becaJse th.ere was going to be another election for Vjctoria No. J Braocb dud she wanted my suPport again. Diana was chaUenged in the Federal Court

abou~ her eligi\nlity to run for electifn by Marco Bolano and she was represented by Holding

R..edl1ch law t· She was succes~ in being deemed to be eligible to run for election.

7. I su:pp0;rted Diana during h election c.ampaign in a similar way to the previous campaign. tmd trus time she W3S su essful. On this occasion, Daniel Govan ran for Assi~t

Secretary I Tre~rer and there was clear ng:reeroent: between myself, Diana and D avid Astnar as well ps Daniel that if Dani1 I was successful, he would stan.d down from the position

!

•

••

861

' -~·;·~~,·~.~~~~;:·:~-~.i~2~_:_ ! .··~-

·-·-· --·-·-·antFI~woUI.O~~e over the role of lsist.ant Secretary I Treasurer. This agreemen1 wn."

·.co~oili~o-~ledge with everyone n the ticket and people supporting those on the ticket. ":"·~---... ~--_. ._ .. ::::~ . li

-~-s· .· .. .

~-J:I.i.-~!..~. '"W .. :.' ... :~_ ~~ccessful in bej g elected in ~ecember 2012 to Secretary although Daniel wa~}lJOt.~ L rue Flynn was elect d as the Ass1stant Secretary I Treasurer from un oph[~g'lt!'6 :· After the electio1.1, iana jo.ined me up as a member and I paid 12 010nths back;f~.s~~;d~tl:jat I could take over , e role of Assistant Secretary I Treasurer once Diana was a})1~Jo_gt}t,:#,t,i ~f Leonie Flynn.

~;: ; .

9. ,)mrn,$· i. ately after the e1ecti'f I became part of the Executive team although l was not a_p~Q~plQ.)r at that time. This xpeant that I participated in Executive meetings witb

Diana Asri~:,i :Ci.mberley K.itc~g,fark Donohue and Luke Walladge. ·

10. There;' as open d.i:;cussioo tat one stratr."g)' to get rid of Leonie Flynn was that Luke

-.., Walladge wou d flirt with her and s t her up for a sex-ual harassment claim. This strategy was

• discussed at . ·. tiogs at Diana's h.ore with Diana, David Asmar myself and my partner ~) Sandy. :

;

11. The stryttegy for Luke to ~with Leonie didn' t evoo.tuate because there was a legal issue invohring a claim against Lukl.( and he needed to retUrn to Perth. After that, the plan

b...~te that :rdmbedey Kitching wduld take Leonie out for coffee and hecom~ friends and

become a c:ontfdant. Mark.Donohui would also get close to Leonie by havillg cigarettes with

her and be:frie~d her. The pllql0sef1 f this would be so that Kimberley or Mark could get

information o~t of Leonie which th y could later use against her in the plan to get rid of her.

12. No:ne 9f these plans worked F.d Kimberley didn ~t take her out for coffee although

M~~~;£.;2?.,~ :~Vv.ith Leonie hi~g c~garettes with..her.

:fs4~;-~~1%f~~;t€ritkn:meetings with Diia ~' Kimberley Kitching and on several occasions

With I>'avid Shkw from Holding Recllich. During these meetings, the strategies discussed

a were how llo ~e l.?..onie Flynn's fi.9ancial role away from her so Diana could take ov~ the .._ financial role. Also discussion occUrred about how to ex'tend the election period because

Diana only ga 14 months before an~t:her election is required. I am aware,fuanhc National

Secretary C · Brown will not sup~an ext-""TTSlon to the election period. : 2.2.~1 Qr,, <~

14. lt was .~e ;r' April2013 I full time employment with fue union as an occupational ~bal!-h and safety officyr. For the first three molllhs I had been assisting Diana

but r was doillg so on a voluntary basis as required until the branch had the funds to start paying me .. TI1ere was no selection rocess and I was appointed to the role. Within .a

reasonably sh9rt time of me starting as the occupational health and safety officer. Diam\-gave me the positi~ as team leader (lead organiset) at a salary of$90,000 and a vehicle, phone, fuel curd etc. I

I

·:": :- .. .

0 :;: ·~:::i~iifliii:.-. 862

From unknown Page 4f7 Date 16/09/2013 2 25 2S PM

Right ofEnnj• :Permits

1 5. Jn abm.;t April 201 J I reca!J t1.ving fl discussion wi0.1 Diana in her office during \.Vhich Dia!lli told me!fuat Kimberley Kitcr~ng had doue her (Diana's) Right of Entry on line Lest.

Diana told me ~he was going to in~ct the rest of the sUlff a1 the industrial day that Kimlx:rley would be doing the Ri.gb of Ent.ry tests, including mine.

16. Also, ~ April 2013 J attende an lndu..c:tr:iaJ day at the branch which is when all

employees meet at the branch. DwT is fiTStly a houseke~ing meeting for all staff and tbeJJ

some staff lea~e the meeting and ~organisers meet to discuss industrial and training issues.

It was a1 that ~eeting tha1 Diann As~ directed the iruiustrial staff that all Right of Entry

Permits wop.ld !be done by Kimberl~K.itcbin.g. 1 took this to be a specific direction from ilie

Secretary. : I

17. r undc~ood tbaJ: Kimberley auld be doing the R.igbt of Entry u·ajning and tests I

tr> .... ~::ause of the, ~orkload of organiseJ., it would save them time if:K.imber1ey did the test.o; an.d

the organisers .eould focus on industuial matters.

18. I re:~a.H ~und.th~ time KimLrley W"'dS nmnin.g for pre-selection for a seat in

Parliament on +rnon payed time. Bob Diana and Kimberley gave direction to Peggy· Lee. to do the R.ight o~Entries; Peggy Lee nhfus~ to follow the.ir directions. I remember thinking how brave Peggy was as I knew wh~ could happen to people who refused direction from

Diaoa. I remerpber signing the form jPeggy Lee presented to me of which J retm::ned to Kimberley. r lqnow that it v.:as K.i.mrrrley Kjtching that did my Right of Entry test and within

a few weeks I *ceived my Right of fntry Permit

J 9. I am ceTtain that Kimberly cdrnplered tbe Right of Entry test for a number of people

and there was ~o secret about it, evebrone in the office knew about it. Kimberly did the tests

for: i I

I

Diana Asmar; ! Davjd Eden (th~ President);

N1ck Katsi11~

Jayne Govan;

Myself;

Moira Sanderson: ! 0

Peter Lazar.evslti· I >

Jack Massa;

Wael Hassen (~ho has resigned);

Sasha (sum.am~ n01 sure).

3

•

•

863

r . ,.::.~ .. -

L

•

...

From: unknown Page: 5(1 Date· 16/09/2013 2.25:29 PM

;0~-·- ·'-;.., :):obl= npartfro~ m~g declar-dtions about doing the training and lests whiclJ

people w~'t actu.illy do mg. 1s ~at people don' r know what they n~d w be doing

according tb~ legislation. 1bat incfudes wba1 their rights .and responsibilities were in go.iug

on sites. .[;)i~a .. told people not to yorry about specific rights and responsibilities when

accessing sit1 and she did not se~.to ~ there.w~ a pro~lem with .it. ·

21. My otper concern about 5ple like Nwk KatsJs, Mot_m Saunderson, Pete:r Lazsrevski.

Jack Mas.!:a, 'f' ael Hass!!n and Sashja is that none of them had any ex~rienced in accessing

work site~.. P~op.le like me, David fien Diana herself and a few others a1 least harl

expetiOl>ce"')~ !;new what we sbo1d and shouldn't do when using Right of Entry Permits

22.. I b~~pd back my permit ~~eFairWork Commission on Thursday 29 August 2013

because I :amf'··o longer employed biY the Union. l! is likely I will apply fo; a Right of Entry

Penn.it in t.he uture and the reasou Fgs occurred how they did with my _p".;rmit is tbal T

considered th. Secretary tD have giJen a specific d.i.rection about how they were to be obtained. I t.ofk tb.is seriously a.s ~e is the Secretnry of the Branch .

Conc1ern ubo:~t Cronyism I !

23. I have p signifi.cant concern fili<>ut most of.the people Diana ~mployed ~ th~ Branch. My partneir S~1dy and I have both qetm told by D1ana Asmar that Kimberley Kltcmng ru1d her husban.d Tew Lanci.."!}'oU lent money to Diana for. her HSU electiou campaign. Diana

told us tha:t tb9 payback for the loan.! was that !Gmberley would be employed in the BrdDch if Diana was .sucpessful in the electioJ and that Kimberley would be supported by the Branch iD circu0lstancest"1Iere she rntl. for parfiamentary elections in the future. mana has told my partner Sandy lmd J that Kimberley is on a salWJ• of $120,000 with a car, fuel card and a

phone. J run a.tare that Kimberley'~ husband uses the uruon car and Kimberley uses cab

vouchers. Myjconce.m is that this is'an abuse of members funds.

24. Since ~iana bas beeJJ ele::{ Kimberly hHB run fo, three seals; Gellibrnud, Lalor and · Senate positifn althcmgh she was ur1.<mccessful with all tbtee . . I know that branch resources

were used to s~pport Kimberley's po/Hament.ary election campaigns which included printing

of flyers., use or computers and telephones an.d using the branch office for labor party

meetings. The{e were often labor p~ people at ilie b.rauch.bu1 I r~aU one night when the

bran.cb offi::e ~Ft:d to be full of labor party people d1scussmg tactJ.cs about -..vbo wDuld get

elected and whpre. I

25. 1 am a.ltf> aware that David s tutde(SOn came to Australia from England and 1 am

concerned abo* whether the Branch\ actually paid for him to fly to Australia and back to

England. 1 am f~ that he was ~loyed by tbe branch in some sort of campaign role but I am aware tluotp my internal knowledge of whm was going on, that he was actually

employed to surport Kimberley Kitc~g io her parliamentary election campaigns.

26. I lrnow·F David was using ~eonie Flynn's office and I saw Kimberley's campaign flyers iu the bi.l.~ in Leonie's office t David was us·ing. 1 have no doubt that David was produc:mg tl1es~ flyers, using HSU re ources for Ki.mbc.rley's campaign.

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From unknown Page 6/7 Date· 16/09/2013 2 25 28 PM

27. David was employed for a nfl her ofmonths and most ofh1s time was dedicated

towards assis~g K.im.ber!ey in her. e ectio~ cumpai.gns. David lef1 th~ HSlJ in around late June and it w~n't until hts last peno oftJ.me there that he actually chd HSU work by

producing hus~ess cards and otht:r · 10r work.

28. Kerry Georgiev is the curren fuumce manager of the branch. J was told by Diaru~ that I

t.be reason KerrjY was employt!f.l was cause Kerry's :futher loaned Diana Asroar money for

her election. campaign and the payba ·k was that Kerry was to get a joh ut the branch. I know

that Kerry Geo~giev is on $100,000 ~alary and is supplied with a em-.

29. I run a;,are. that there is an aclmmtnnt who does work for the branch and so it seems a lot of union f~ds to be paying a iinahcc manager pecause her father lent. Diann money. ·- : I 30. I am al~p .concerned about the process hy which Mark Donohue has been employed.

Mark ran Dian~' s election campaign ~d he wtl!i employed after she was elected. He was

employed for a /".c.mple of months and thL"D he left to go to America.

31 . Diana :rang me a couple of mlnths after he left and told me be was coming back to . I

Australia and tliat she wao.ted to emp~r:;>y him. We illscussed that he would not be on a large

salary and would not get a car howev!.er, after his re employment I questioned Diana Asmar

and she told: mJ be was on $ J 00,000 Fl · tb a car. 1 am aware that Mark Dooobue gets a tram

to work and d~ not drive the union car. Mark' s partner drives the vehicle and uses the

wrion. fuel card~

32. Again my coucem is that this is an abuse ofHSU members funds . I

33. J have also have a concern tbAt there have been no selection prc~se8 for employed

b~ Di~n.a .A.sm~ and pt:ople are empl~yed on the basis of prevjous .friendships. For .example,

DJarun P A Ha!lia was her P A when ~iana was the Mayor- of Darebm; because Hala ts

employed, her Jister also gets emplo~ed by the union a<; an organiser. Wael Hassen was

employed o:n thb basis of his uncle b~ing employed. Moira Saunderson was employed

because her bm~her David wns empl1yed and supported by Kimberley.

34. Other p~ple from the Labor farty have been employed at the union not ty..._cause of

their skills or b.~ applying for the rol' but because they have supponed David Asm.nr i11 his

role with the ~'bor party. These r...o~lc include Kimberley Kitching, Mark Dohohu.e, Nick

K.atsis, Carm .. ToiJ Gr:mger, Sel Sanli, atban Murphy, Dean Sherriff, Imad Alzind, Kemal

BeklmJi a:ncl D~vid Smmderson.. Th.e e have been others employed in the sarue way since J have le:ft the ll.Ulou.

I

3 5. I am awf.re that the union has ever before had so many employees and Diana. bas had

to re-finance the union to pay the sal ·es and vehlcles. Traditionally the only ones to have a

vehicle where elected official.s and ruhustrial staffbut, seems most staff under Dian<~ .A..sr.n.m has vehicles. : I ·

5

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865

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--"$'6. :. ~-';~;,J~!la.V,~.a:fU!:fuer.concem.ab utthe legal tender process by which Holding Redlich ,... ... , :.~-~":. •t,• ... •.j'~ __ \.'- - ~.t ,, 1 .,...~-~-~-- _:- r , . . ,.

· :'t}~cri.i;Qe{~the~~~ccessful tenderer .. · ian.aAsmar made it very c1ear in a discussion with roy

- -'11_~~5~_:~~ ~~!P_.:4.r·tb;t:H~lding.· edlich were .alwa~ going to ~e:: the ~ucc~ssful tenderer for i~I~:Y!~qgfP"Y( ,i>k~becau.seJhe-J' had upported he.r dunng her electl.(>n campatgn.

··-~--~~~ :~;- , ;_~--·- .. ~;·i· ...... ___ -._; ·. . .

· .Jf~:};:~,;·vru; P.~~sent with 'Diana en the te~der envelope was opened. Diana wanted me to

be :tlj~f~:i~:S .a i'~~ess.althm}gh oth people came and went from Diana's office including her p A.-)J.i~~~-q . ~~d the f'.OVelope ru!d Went: through the three tenders that were inside. ] TE.!call

that<T-I6Jding- " 'ch was the cht:a~est tenderer. There were two other tenderers but my

C<m~?~~ +:·y-~as -told later on ~at only two tenders made it to the Branch Committee of Management .

~\ . . . 38. -l~U:n:~soaware that the brilllcb has inctuTed a significant legaJ hill to Holding Redlich

......... in th~: .firS;t ~e months of somewhre in the vjcin_ity of $200 - $250,000. 1 do not believe

.• Holditn~-F4ch have done ao.ywh!tre near that amount of work for the branch &nd I am concerned aiiut the possibility th1 Holding Redli cb may be recovering some of their costs of supporting pi ana in her _election fD.tUpaign.

, . I 39. It was !fue evening M July 1 ~ 2013 that l resigned from the Union. because of these concerns and fh:e workplace bull~ and harassment that \\'aS going on in the union by Kimberley Kitching and Mark Donohue which was being approved by Diatlli Asmar.

40. Leooi1 F1ynn was being pJcuJarly hullied because Diarut obviously didn't want her

there and hy,e Govan was also beirg bullied. .

.4). 1 ~ave, f.xpressed these concjrns because I genuinely believe that union members funds shoLtlur used for the benefit\ of members and I am concerned that in some cases,

funds are not ~eing appropriately T R,_ . I ~ i

./ Robert McCut1bin 1

I I

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866

i~

Govan Jayne Faye:

States:

1. My full name is .layne Faye Govan and l am an Endorsed Enrolled Nurse.

2. ] have been asked to come in lo tbe Fair Work Commission to provide .information i11

relation to a number of issues within my knowledge concerning the Health Services Un ion

Vic. No. 1 Branch and 1 have agreed to do so.

3. 1n 2004] was a Registered Nurse (Division 2) and J was a union delegate at Austin

Health. The union 1 was a delegate for was the Health Services Union (HSU). In that role 1 met Diana Asmar who was a HSU orgaruser at the time. I became friends with Diana.

4. ln 2.005 I became a full time organiser employed by the HSU. At that time 1 was

reporting to Shaun Hudson who was the Acting Assistant Secretary and .lefJ Jachon was the State Secretary.

5. In June 2006 my son was born and Diana Asmar and I had become ::;ucb good friends

that she actually attended the birth of my son.

6. 1 stayed off work for 3 months and returned to work in the late part of2006. 1 only returned to work for a couple of weeks and my position had been changed. Because of my

association with Diana Asmar at the time, J was pushed into resigning and 1 went back to nursing. There was in-faction fighting between various parties going on and Diana was on the outer and so my association with her had implications. It wasn't long after !left that Diana left the union as well.

7. In 2009 my brother Daniel and 1 supported Diana in her running for State Secretary of the HSU but she was unsuccessful.

8. In 2012, my brother Daniel and 1 supported Diana again in her running for State Secretary although this time, Danjel ran as her Assistant Secretary I Treasurer. Diana was successful but Daniel was not and he lost the election in a close vote to Leonie Flynn who had run on an opposing ticket to Diana. I recall that was a fiery election campaign.

9. The elections forthe.HSU occurred at the end ofDecember 2012. Early in 2013 a number of people were either dismissed or resigned as a result of the election. My brother Daniel was put on as an organiser in January 2013 but only stayed about three weeks. After Daniel had resigned, 1 was put on as a temporary organiser on 29 January 2013.

10. 1 commenced my organising duties although I bad a very significant workload because I was organising for three areas.

867

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Right of Entry Permit

11. Back in 2005/061 had a Right of Entry Permit in my role as an organiser so 1 was

familiar with the general requirements of the permit. I can ' t remember what, if any training I

received 'back then.

12. . In January and February 2013 I was attending a number of sites in my role as an

organiser and because l was doing so much work, I was getting asked by employers for my Right of Entry Permit. I bad not been issued with a Right of Entry Penn it at that stage which was fairly embarrassing and was causing me a problem. 1 was aware that other organisers

were also having difficulties with not having a Right of Entry Permit

13. J was present at an industrial day at the HSU office situated in Park Street, South

Melbourne in February or March 2013. 1 recall that a number of organisers raised the issue ofR.ight ofEntry Permits because ofthe·di:fficulties we had been experiencing. Most if not

all the employees of the union would have been present at the meeting, including most if not

all of the organisers.

14. It was during the meeting that Diana Asmar told all of u.s present that we would not be

required to complete our own Right of Entry tests and that Kimberly Kitchmg would be

completing the tests for u.s. Kimberly· Kitching is the General Manager of the Branch and I will -refer to· her later in this statement.

15. It. is my Uilderstanding that Diana was auanging for Kimberly Kitching to sit the

Right ofEnt:ry tests for the organisers because having regard to our work load, we really didn't have time to do them.

1'6. , J knew that I should have been doing my own Right of Entry test. I had not received any training about the Right of Entry Permits but l had previous experience so I understood

what my rights and obligations were. 1 also did my own research from the Fair Work web site and downloaded information which J provided to other members of the HSU 1 did this

t~ keep up to date with the rights and obligations of permit holders which had changed significantly between my first and second permits.

] 7. While I was experienced, l did feel sorry for those other organisers who would not

have been aware of their rights and obligations in relation to Right of Entry Permits. I can

say with confidence that the following people did not do their own tests :

• • •

Nick Katsis;

Dean S berriff; Diana Asrnar;

Sa.<;ha (whose surname Jam not sure of and who is no longer at the HSU); David Eden; and Rob McCubbin .

!:_":'-!V' -... .. , .. .. --.... ~,-:-

868

1 g. Tbe reason 1 can say that with confidence is because Dean, Nick and Sasha started at the same time as J did and we spoke about it among ourselves. Jt was common knowledge and not something that was hidden from anyone.

19. Diana actually boasted that Kimberly got around 99 or 100% when Kimberley completed Diana's test.

20. The next tbjng that occurred was that I received my Right of Entry Permit from the Industrial Assistant.

21. l did speak lo DeeMcJnlosh who is another organiser after receiving my permit Whenl spoke to her, Dee told me that she was getting harassed by the management at sites for not havffi.g a permit and she had to take others with a permit out to meetings. Dee had to sit her own test because hers wasn ' t being done by Kimberley who had become busy v.0th her pre selection campaigns.

22. l was also of the understanding that Dee assisted Tim Rowley to do his permit.

23 1 recall that there was some problem v.0th the apphcation forms and David Eden got

me to sign an application form on more than one occasion. I can't be specific but there had apparently been some problem v.0th the fonns and David was the one actually witnessing the form. David is the President of the Branch.

24. For the purposes of doing the tests, emails came to my inbox but I did not respond to them because J knew Kimberly wa<; dealing with them. To be honest it was just one less email for me to deal v.0th in a stressful and very heavy work load.

25 . . On July 12 2013 I was dismissed from the HSU by Diana and Kimberly Kitching was in the office at the time. I was provided v.0th a letter from Diana which did not set out a reason for my ilismissal but tbe fact that my employment was ceasmg immediately.

26. I am presently engaged in civil proceedings in the Federal Court in relation to that ills missal.

SMC South Melbourne

27. It was about a month ago that I was having a conversation with Leonie Flynn who is the Assistant Secretary I Treasurer. Leonie asked me ifl was still paying into an account and I told her l ilidn 't lrnow what she was talking about. When we were having Lhis conversation,

we were at Rob McCubbin's house in Sunbury and Leonie then produced a one page document which were the Minutes of the Inaugural General Meeting ofSMC South Melbourne. I have brought those Minutes to the Fair Work Commission today.

28. The date recorded as there being a meeting of SMC South Melbourne is 6 March 20 J 3 and the Minutes record me as doing various things in the meeting.

3

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869

· .29. l.can-~t;gorically state 1 have never attended a meeting of SMC South Melbourne - with .t.!:le ·persons named in those Minutes and I bavt: no knowledge of any account relevant to

SMC"So~th -Melbourne. The only possibly thing I can think of which might have any

connection to SMC is a crude reference to that acronym which was commonly used around

theHSU.

30. There was a lot of talk about SMC and it was a very often used term around the HSU

but I do not know that it is a reference to the term commonly used although it is the only

thing J can th:ink of

31. Also anached to the Minutes is a copy of an A uthonty for Business Accounts which 1 note has on its second page, a box ticked for Unincorporated Association .

32. T also· note that there are three names recorded on the fonn which are;

• •

Diana Asmar;

David Eden; and

Kimberly Ki tchrng .

33 . I note that there is onJy one signature appearing on that document which purports to be that ofKimberley Kitching.

34 . My concern about this is that my name has been used on Jvlmutes to move and second

motions which relate to a bank account during a meeting which I did not attend and for an

account for which 1 have no knowledge. The date of tbe meeting is only about a month after

] started in my role in 2013 at the HSU.

35. All sorts of questions emerge for me including why my name is being used in this

way and whether memhers f unds are being channelled into some type of account which may

be a campaign account.

36. l note that Nathan Murphy' s name is recorded as being one of the people present but I

am not sure whether Nathan was actually employed at the union at that time.

Other concerns

37. 1 have other concerns about the financial management and accountability of the Vic. No. 1 Branch of the HSU.

38. I am concerned about the way Mark Donohue is employed at the HSU. Marl< was

originally employed by Diana as a communications officer after Mark and Luke Walladge

had worked on Diana's campa1gn. Mark subsequently left the HSU and went to the United

States but later returned when he was reemployed by Diana in a different role as Operations

Officer and provide with a HSU vehicle, Apple computer and Lap top computer. I am aware

that Mark doesn't even use the HSU vehicle which IS left at his borne for use by bis partner.

39. _ 'These are significan1 resources to be provided to Mark by Diana and 1 am concerned

about these resources being unnecessarily provided to an of-fice staff member.

·· ---- -· ----..: OoAQ aO/~ 4

870

~0. I am also concerned about the reasons and method both Kimberley Kitching and

Kerry Georgiev have been employed. I have no evidence to support what 1 am about to say

except that it has been part of the general discussion around the HSU office and 1 am

concerned about it.

41. The discussion around the office is that Kimberley Kitching and her husband Andrew

Landeryou gave money to Diana Asmar's election campaign and that Kimberley Kitching

was subsequently employed as a way of paying back the money provided. I think Kimberley

is on around $120,000 salary as well as a car which is a sib'11ificant amount of money.

42. The discussion around the office is also that Kerry Georgiev's father provided money

to Diana's election campaign and that in return, Diana would employ Kerry on $100.000 plus

a car. I understand that while Kerry is the finance manager, HSU also employs an accountant

so-1 have no id~a why the HSU would pay so much for a finance manager as well as paying

for an accountant and then an auditor on top of all ofthat.

, 43. My concern is tl1at union members funds are being inappropriately used in 1be way I have described above.

44. I have additional concerns about potential conflicts of interest. For example, there is a

tender currently advertised on the HSU Website- cleaning tender. I am aware that Kerry

Georgiev's husband and father in law have been undeltaking cleaning of the HSU office

since Diana Asmar has held office. I was told by Diana that 1 wasn't to tell anyone about the

relationship between Kerry and the people doing the cleaning . It is possible that the cleaning

tender is being advertised now so that it looks like it is being done properly because the same

people have been doing the cleaning for 9 months.

45. ·wael Hassan worked as an organiser for the branch for approximately four months. I

understand that Wacl is the brother in law of the lT officer Imad Alzind. Before he came to

the IISU Wael was a customer service officer at Darebin City and previously worked at a

CL.. chocolate factory . The issue is that Wael had no relevant experience and this is a further example of neJ?otism.

46. My general concern about these appointments is that none of the relationships were

disclosed to or approved by the BCOM.

4 7. I have a further concern about whether David Saunderson's airfare was paid for by the

HSU as he lives in London and has a business there. David came to Australia to assist w1th

union campaigns but no union campaigns were conducted during his time at the HSU.

Assistant Secretary I Treasurer

48 . I have indicated above that Leonie Flynn was elected in December 2012 in lhe role of

Assistant Secretary I Treasurer. I was aware from my conversations with Diana that after the

election, it was her intention to prevent Leonie from performing the role of Assistant

Secretary I Treasurer and prevent Leonie having contact with members so that Leonie

5

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.. ~ ~-- ~~~- ~:·? ·.2-~-~ ~ .~ . ·, ~::·L~-~(£ ~ '-~~~~~~-i~:i '

871

couldn't gel members on side Diana 's strategy was all about getting numbers for the ne>..1.

election.

49.. We were dlfected by Diana and Dean Sherriff to give Lcon.ie individual grievances

that weren ' t winnable so that she felt like she was doing something but cottldn ' t gatl1er

member support while she was doing it. We were directed by Diana not to have members

meetings because she had directed .I ,eonie that she wasn ' t to have members meetings and

Diana was trying to appear to be consi stent.

50. J am aware that Diana was meeting 'Nith David Shaw from Holding Redlich about

how to shut Leonie out or eve11 how to remove her from her role. It was qui te clear that there

was a concerted effort to a.lienate Leonie from Diana and those in the branch who supported

her.

51. If there were times when me or others would 1alk to Leonie or have a cigarette with

her we wottld be questioned about what we were doing and why we were with Leon ie. It was

a toxic environment to be in.

Jayne Govan .() . ( . ......_

()UVQ..A\ \ .. ./

Signed on ... 0 !'U

6

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~:~·(tS:i~~tf~:~~~·::~:~

.......

·;;

872

17 October 2013

Ms Diana Asmar Secretary Health Services Union (HSU) Victoria No 1 Branch 208 - 212 Park Street South Melbourne VIC 3205

Dear Ms Asmar.

R ight of Entry Permit Appli cations

I

FairVVork I Cornmissioj

As you are aware, the Fair Work Commission (FWC) has been engagtng with Mr Davtd Shaw from Holding Redlich who is act tng on behalf of the Health Services Union (HSU) Vtctoria No. 1 Branch in relation to inqutries beiAg conducted around Right of Entry (ROE) Permits and separately, a range of allegations which have been made by HSU Assistant Secretary I Treasurer Ms Leonie Flynn.

On 9 October 2013 Mr Shaw advtsed the FWC by email that he was assisting you and the HSU Victoria No. 1 Branch by receiving matenal for incorporation into a proposed response to the FV\IC Mr Shaw further indicated that he was aware of contact between current employees of the HSU Victona No. 1 Branch and former HSU Vtctoria No. 1 Branch employees Ms Jayne Govan and IVlr Robert McCubbin. In the context of that contact, Mr Shaw requested advice from the FWC about whether there had been any new allegations or changes to the allegattons which had been made which might assist in the preparation of responses being prepared

On 10 October 2013 I advised Mr Shaw by return email that there were no new allegations or changes to the allegations which had been made which would assist tn the preparation of responses.

On 16 October 2013 I received advtce from Shaw in relation to the status of the HSU response to the ROE permit issue. including advice about the balance of statutory declarations requested from you. Mr Atkinson and Ms Rose Charbel.

I advise that the FWC is in receipt of recent information from two conftdenttal sources which may asstst in the preparation of responses with respect to the ROE Permit issue Unlike Ms Jayne Govan and Mr Robert McCubbin, the two confidential sources to which I refer have not made formal statements. While the FV\IC is endeavouring to establish the co-operation of the two conftdenttal sources tn the making of formal signed statements, in order to assist you I have decided to provide the substance of their Information to you .

11 Exhibihon Street

Melbourne VIC 3000

GPO Box 1994

Melbourne VIC 3001

Telephone: (03) 8661 '1777 lnternat1onal. (61.3) 8661,:7..'7.·7.7

Facs•mile. (03)'.9~?5~0>\.Chi, -

Ema•.';· -~f~~~~:xi01~~~~~~ 873

-·--~ ---... -- ~·-··__.,~--,~- ....... .. . . . . ~ ~ . " ...... ;. ~

Confidential Source One (CS1)

CS 1 provided the followmg Information to the FWC.

Ms Kimberley Kitching is the person who completed the ACTU ROE training and testing for HSU Victoria No.1 Branch Secretary Ms Diana Asmar: On the day she was completing the ACTU ROE tra1n1ng and testing in January 2013 Ms Kitchmg sought specific advice on several separate occasions about how to answer specific ROE test questions:

• Ms Kitching used the advice she Initia lly and then subsequently received in further discussions. to successfully complete the ACTU ROE on-line test on behalf of Ms Asmar; Ms Kitching indicated that the reason she was completing the test on behali of Ms Asmar was because Ms Asmar was otherw1se engaged and d1d not have the t1me to complete her own ROE tra1nmg and test1ng .

Confidential Source Two (CS2)

CS2 provided the following Information to the FWC;

Ms Kimberley Kitchmg 1s the person who completed each of the ACTU ROE tra in ing and testing exercises for HSU employees who are recorded as havmg participated in ROE testing around 15 February 2013;

• Ms Kitch1ng mdicated that she completed each of the ROE testing and tra1n1ng exercises consecutively on her PC 1n her off1ce of the HSU Victoria No. 1 Branch;

·5 All the FWC would need to do to prove this is to examine Ms Ki tching's computer and it w ill be clear from analysis of her computer that Ms Kitching did the tests consecutively:

• It is likely that each of the training exercises will be shorter than the previous because she will have become more familia r with the requirements as she completed each test;

• fv1s Kitching expressed satisfaction and some sense oi pride that she had been able to complete the tests to a high standard and that as a result, she had developed a good knowledge of ROE procedures for the purposes of the ACTU tests:

• On subsequent occasions , Mr David Eden and Mr Darren Rowe were not the people who actually did their own ROE training and testing; Ms Kitching however, was not the person who rece1ved the trainmg or perf~rmed the

...... ··'·'' .. ;. • . ·: ··.;·;.';,;~;,,·*!D~W on-line tests on behalf of Mr David Eden or Mr Darren Rowe, '' ... ' . ··· · · ··~ ··The ROE training and tests completed on behalf of Mr David Eden and Mr Darren Rowe

were conducted from another PC in the HSU off1ce .

I have indicated above that the FWC is endeavouring to establish the further cooperation of the two confidential sources referred to above by obtaining written statements from them and if successful, it is proposed to provide you with those written statement s.

Should you have any questions or would like to discuss the matter in the meantime, I can be contacted on the details provided below.

. -. - .

"-. ~:-· · ~ ~:~i::.~~::L:i:~~\b~ ,.. . ~ : 874

Yours Sincerely

Chris Enright

Director

Regulatory Compliance Branch

Fair Work Commission

03 8661 7818 -c hris.enright@.fwc .gov.au

875

Leszczynski Alex John

States:

1. My full name is Alexander John Leszczynski, though I am generally referred to as

Alex rather than Alexander, and 1 am currently employed as an industrial officer with the Health Services Union (HSU) Victoria No. 3 Branch. My official title is Senior Industrial Coordinator. To the best of my recollection the information contained in this statement is

true.

Background

2. I completed my arts/law degree in late 1999, and since 2001 1 have chosen to work in

various roles in Unions in a number of different States of Australia, though predominantly as .._,) au industrial Officer. Between 2007 and 2011 for example, I was employed by the Finance

Sector Union in Melbourne as a National Industrial Officer. From April 2011 1 worked for the National Tertiary Education Industry Union (NTEU) in Perth as an Industrial Officer,

before leaving in late 2012 to take up the Senior Industrial Officer position with HSU in

Victoria, in part to move back to the Eastern states to be closer to my family.

·.J

3. ln around September 2012 I became aware through a public advertisement process

that applications were being sought for the role of a Senior Industrial Officer in the Health

Services Union (HSU), Victoria. I applied for the position that was being largely managed by the Deputy Administrator of the HSU in Victoria Mr Jim Simmonds, and also by

Administrator for the HSU East Mr Michael Moore. I was subsequently interviewed for the

position and in a merit based application process, I was offered the position. Though I bad

some concerns about taking the position given the recent history of the HSU, I realised that

the members of the HSU still needed industrial representation and as such accepted the position.

4. Because I was hving in Perth at the time, there was about a six week time frame for

me to give notice to the NTEU who I was working for at the time, pack up my belongings,

arrange for them to be transported and move to Melbourne to take up the position with lhe HSU.

5. I believe that it was on or around 12 November 2012 that 1 commenced in the position, although at that time the No. 1 and No. 3 branches of the HSU Victoria were still

largely operating as one under the administration of the administrators I have referred to above.

6. When I took up the position, I did not have any prior association or relationship of

any kind with Diana Asmar, Leonie Flynn or any other elected official of the HSU Vic. No. 1 Branch, past or present. I had never met any of these people prior to them being appointed to the elected positions they took up after the elections. I can say as a matter of certainty that I was not associated with any of the people who had run or were running for elected positions

1

876

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in the .HSU Vic. No. 1 Branch, nor was I part of any ticket for the elections. I was not

associated1ri any way with any person or any part of the election process and so I considered · ~y;~lf;to be independent from any of that election process.

7. -.... -:l ,did lmow the wife of Craig McGregor (Craig at the time of my commencing as a

SeniorJnaustrial Officer was rwming as Secretary for the HSU Vic. No.3 Branch) as Craig's

wife worked for the NTEU who I had previously been employed by. I also knew Fleur

Brehemswho was also rurming for the Secretary position of the HSU Vic. No. 3 Branch on a

difter~nt ticket, as I had completed an ACTU training course with her and seen her at the then Fair Work Australia, though it has been over a year since J had seen or even spoken to her.

8. Although the role did not immediately involve me working exclusively for the HSU

Vic. No. l.. Branch, it was made clear to me that following the election of officials in

December 2012 1 would be working exclusively as the Senior Industrial Officer for the HSU

Vic. No. I Branch. My selection by the administrators in a merit-based selection

demonstrated that they were satisfied with my experience and qualifications to perform that role in what was clearly a very twnultuous time for the HSU.

9. The elections occurred in December 2012 fol lowing which Diana Asmar was elected

as the Secretary, Leonie Flynn was elected as the Assistant Secretary - Treasurer and other

persons were elected to various positions. It was just p1ior to Christmas of 2012 that I first

met Diana Asmar. The assistant administrator who was involved in my appointment, (Jim Simmonds) explained to Diana that I had recently been employed by him so that, I believe, it

was obvious that I was not part of the previous regime of staff at the HSU which, as I have said above, had been through a troubled period.

10. It was obvious to me following the appointment of Diana Asmar as the Secretary of

HSU Vic. No. 1 Branch that the branch was going to need me because most of the previous

organisers were terminated by Diana and 1 was the only experienced industrial officer left at

the branch. There was a junior Industrial Officer employed, Ms Hazel Ondari (who was

( terminated by Diana in February 2012), though she had only recently completed her studies and had limited industrial lmowledge or experience. It appeared to me that the reason I was

not tenninated initially was because I had been recently employed by the administrator and in

that sense, T was not associated with the previous regime of the Branch.

11 . While there were a small number of organisers left, it was necessary for me to become

involved in assisting with disciplinary interviews and other duties generally performed hy the organisers that had generally not been performed by the Senior Industrial Officer previously.

12. l met Kimberley Kitching at around the same time I met Diana. Her position at the time was General Manager.

Management of HSU Vic. No.1 Branch

13. From my observations in the first month of 2013, it seemed to me that the HSU Vic. No. I Branch was effectively being run by Kimberley Kitching, Mark Donohue and Luke Walladge. They appeared to me to be the peopk generally doing the day to day running of

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· ... ·: . -th~ .branc~-rather· th~ ·Diana .Asmar. While Diana would sometimes make broad statements

to_-staff abo~t what the Branch should do, it seemed to me that it was in effect Kimberley, and to a le~ser extent Mark and LUke, who generally (though not always) made most of the real decisio~s·:~bout the-b~~ch, That is not to say that T agreed with some of the things that these peop1~':Were doing ,or:that I 'thought what they were doing was right, it was just that they see~~d 'to=be running. the :branch more so than Diana. I am aware that both Ma.rk and Luke had previ~us~y woil(ed-lor Unions, though I don't believe they were in senior roles, though T

can't be- certain about th1s. In the case of Kimberley I do not believe that she had any prev·il)'us :Uiii~n expt:iit:nce, and nothing I saw indicated otherwise.

14. _ wfule'T believed that Kimberley, Mark and Luke were in effect running the Branch, I

made some-observations about how they were doing it There was a lot of work that needed to be doneJ~o rebuild the branch, yet there were significant periods of time when this did not seem to a big concern of Kimberley, Mark and Luke. I regularly saw Mark, Luke and to a lesser extent Kimberley, doing very little, such as sitting ?lround and talking about things other than work, particularly Labor party politics, and in one case watching television on screens that had been installed in some offices by the previous leadership of the Branch. I understand that we all need to take a break from work at times and when J was working 10 -

12 hours a day most weekdays, I would take a break. During a break for example I would read articles on history or sport or do other things on the internet. However given the number

of hours work I was performing and the fact that 1 was almost always the last person to leave work, I did find this lack of work and effort on their part disconcerting.

15. It was clear that much of the decision making was not being made by Diana, but instead by Kimberley and others. Diana did not strike me as being particularly intelligent or having gr~at i?d~_~trial relations knowledge, and as a result l was puzzled as to why she had received

Sl!PP..9Ff.AJt ;~ng for the Secretary position of the HSU Vic. No. 1 Branch. On one occasion "ll1-B;rr;r;i'-;t:y: when 1 was still trusted by the leadership of the branch, Dean Sheriff indicated to me that Diana and her husband David Asmar had some power within the Victorian Labor

L Party and had significant support within the party. 1fthis is true (and again I can't say it is) it may explain why Diana had received support in running for the Secretary position of the HSU Vic. No.1 Branch.

16. In the case of Luke Walladge however he was not with the Union long. One day we were told that be had to return to Perth as his mother-in-law was ill . However soon after he left I saw an article in the Age indicating that Luke had appeared in court as it was reported he owed money to a sex worker, tlJough this does not appear to have been for sexual services. I cannot say whether this was the case or not, as I know that things aren't always ,accurately reported in the media. The article in question can be found at the following link: http://www.theage.corn.au/victoria/union-secretary-asked-to-cover-tab-?OJ30303-2fede.html . (Attached as Annexure 1)

Process for employing staff

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17. It wasn't W1til 14 February 2013 when Kevin Bradford was terminated because of alleg~dly disobeying a directive that it became clear that something wasn't quite right at the branch, and that the 'writing was on the wall' as far as my employment at the HSU Vic. No.I

Branch was concerned. By the 'writing was on the wall' 1 mean that 1 realised if a person was n:-ot se~n to be one of 'their' people ('their' being Diana Asmar and members of her

ticket, people affiliated with her in the Labor party, her friends or the supporters of her campaign) then things might not go well for that person at the branch.

1 R. As a:result of a Jack of experienced organisers, Kevin 's workload, like mine, was large. However 1 started to see staff try to blame Kevin for things that were not his fault. I remember a specific incident where Dean Sheriff, shortly after Dean conunenced employment at the branch, tried to blame Kevin for not responding to an Employer's email. When Dean gave me a paper copy of the email, 1 saw that the email had been addressed to Dean a day or two earlier, and not Kevin. When I raised this with Dean, be was unable to

~ respond. Kevin issued unfair dismissal proceedings which were later settled prior to arbitration, but I formed the view that he had been dismissed because he wasn't seen to be one of 'their' people and that was the real reason behind his dismissal. One night when we in Hobart for a HSU conference, Dean told me after a few drinks that Kevin's termination probably was harsh, but that Diana needed people who were loyal to her given there was going to be an election the next year, and not someone who could threaten her. This did strike me as strange, and the only reason I could think of why Dean made this comment was that Kevin was (and may still be) a member of the Labor party and at one point had been Mayor of Casey Council.

19. However 1 did clearly understand in January 201 3 that the HSU Vic. No.1 Branch needed

to get _,Qrganisers on board to carry out the business of the Union, and as such a number of ~~~g~se~~j:~ere employed in early January. 1 also W1derstood why Diana may not want to

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retairi~'erganisers who had supported and campaigned for the Marco Bolano ticket. 1 expected that Diana and the management of the branch would start advertising for organ:iser positions

(.. to carry out the necessary roles, although as I will refer to below, that did not occur in January, February or even March 2013, while I was still employed at the Branch.

20. With regards to Mark Donohue, he left the HSU Vic. No.1 Branch in either late January or early to mid-February 2013 to take up a position in the United State of America. However after my employment at the branch was terminated, I was made aware of the fact that Mark

was re-employed by the HSU Vic. No.1 Branch. In neither circumstance when Mark was employed by the HSU Vic. No.1 Branch did I see any indication his position had been adve1tised or that be was employed through a competitive, merit based process.

21. A clear indication that proper processes were not going to be followed was the way in which Dean Sherriff was brought on board as a lead organiser in late January 2013 without the position being publicly advertised, and as became apparent quite quickly, without the skills or knowledge to do the job properly. I was immediately concemed about Dean's appointment and 1 formed the view that he didn't have the skills to be a lead organiser. This

. became clear to me when I saw he couldn't find agreements on the Fair Work website, as

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~ell ~s th-~ .quality and content·.of some letters to employers which he initially wrote, ~bi ch I - .. ::·round nec~ssary to write or re-write for him just so that they dealt with the matters . -- · <lPP;opriately. An ex~ple of -one ·of these letters that l found it necessary to write, a

· . ·template letter lodging a ?ispute/.grievance with an Employer, is attached at Annexure 2 with

,an associated email.

22. I . ~I so found it nece.ssaiy .to explain to Dean issues surrounding the requirements tor ~~ercising the Right ~f Entry .Provisions 'in the Fair Work Act and in particular, what an '.0rganiser is required to ao. I hav.e attached .-a copy of an email dated 29 January 2013 J sent -t<? Dean explaining what an Organiser is required to do. It is attached as Annexure 3.

. . 23·. ·One night~at a HSU conference in Hobart, after he had had a few drinks, Dean told me thaf he haq .. been involved in Diana's election campaign, although he did not explicitly say -that this w~s· the n~ason for him being appointed by Diana. One of the things he indicated he did ~during Dfana's election campaign was produce flyers/brochures attacking the other

candidates, known as a "shit-sheet". Within a short time of him commencing, as indicated ab;~.e,.:certain things happened which raised serious concerns for me.

2~. ,J r~call ·a -particular industrial issue in which staff at the MacKellar Centre of Barwon Health were being asked to pay to park their cars in the hospital car park, which they had not been required to do previously. I remember that Dean wanted to take industrial action over this, and when I explained to him that lawful industrial action couldn't be taken outside of a

· bargaining ·period under the Fair Work Act, he seemed very surprised by that I wondered how anybody carrying out the job of lead organiser could be surprised at something so basic and I immediately became concerned about his understanding of industrial legislation and issues .

. : :· .. ,. ·::&'%~;qe~· then suggested that we simply re-write the Agreement which bad been previously . .. · \. :ri~ggtiated, voted up and approved by the Commission as a way of dealing with this matter.

·~ l.,l,

When I explained to Dean that under the Fair Work Act we couldn't ·simply re-write an

( agreement that had been negotiated, voted up by staff and approved by the Commission he was also surprised. I thought it was extraordinary that a person in a lead organ.iser role would not have a basic understanding of how enterprise agreements operated and my concerns had been escalated.

26. I recall that there was an incident that was reported by me by an employer regarding one of the organisers that were employed by Diana at the HSU Vic. No. 1 Branch but who ·r believe is no longer employed there. The organisers name was Sasha Uzunov and the

employer was Yooralla, who provide disability ser vices. The employer advised me that S_asha had been quite aggressive to a HR person at the organisation and had in effect 'stood over them', yelled at them and made gestures in an aggressive manner. I was well aware that, regardless o:( what I may think of some of an Employer's actions, my job generally required me to have a decent working relationship with employers (though 1 know this is not always possible) if I was to achieve good outcomes for the Union's members and when Sasha's behaviour was .explained to me, 1 formed the view that if he bad behaved in the way

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described then that was inappropriate. 1 also realised that such behaviour could endanger Sasha's Right of Entry Pennit if be did in fact have one.

27. I spoke to Dean about the behaviour expecting Dean would have a view that organisers

need to behave appropriately in a workplace, but l was surprised to hear that Dean thought

Sasha's behaviour was good and be laughed it off. While I know that as a Union Official one

needs to "stand-up" to employers, 1 was concerned about this because T was more than aware

of the 'fit and proper' person requirements in Right of Entry Pennits under the Fair Work Act and I thought aggressively standing over people, yelling at them and gesturing at them in an aggressive manner may raise questions about whether Sasha was a 'fit and proper person' to

hold a Right of Entry Permit under the Fair Work Act and may have implications for him

obtaining or keeping a Right of Entry Permit.

28. Another example of how unsuitable and unqualified Sasha was to be an Organiser was an

email he sent to a manager at Melbourne Health entitled "Greg, you playing games?'' where om: line in the email from Sasba said "Let me guess you're playing funny buggers again?"

Again, I know that at time we have to take a hard line with an Employer, <md this can mean

that our correspondence to them may be blunt and forceful. However l could not believe that

an Organiser would send an email like the one Sasha sent, and in my mind cemented· that

Sasha was entirely inappropriate for the position. A copy of this email is attached as

Annexure 4.

29. There was another occasion, and it may have been at a staff meeting, that an organiser Jayne Govan raised an issue and indicated that during a visit to an employer she had thought

it necessary to block a doorway and not allow a manager to leave a room until her concerns

had been addressed. I remember thinking how inappropriate that type of behaviour was and indicated this, but Dean again supported the behaviour and said something like 'that's the

way.ihs'. V:lhlle l understand that in the heat of the moment someone may do something that in hindsight they maybe should not have done, it was a further example of Dean supporting

what was clearly inappropriate behaviour, even when someone has had time to reflect upon

their actions and should have realised that this behaviour was not appropriate.

30. I recall being advised by someone, it might have been Leonie Flynn, that Dean had

previously been charged and convicted of assault involving breaking a car window when

children were in the vehicle. 1 recall doing a Google search and finding a Herald Sun article

that seemed to confirm this, and while I am not naive enough to believe that everything I read in the media is always true, I was a little concerned about Dean being a 'fit and proper

person' to hold and retain a Right of Entry Permit on behalf of the Union. The article in question can be found at the following link:

http :I iwww .hera! dsun.com. au/news/victoria/dean-sherriff-career -sa vcd/ story-e6frf7kx-1111113382408 (Annexure 5).

31. As a result of these concerns with Dean being a 'fit and proper person' to hold a right of · entry permit under the Fair Work Act, 1 recall raising the issue with Kimberley Kitching. However she dismissed this as not being true, indicated I was not in a position to know

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whether it is or isn't true and then went into a rant about the Age. I will refer to this conversation later in the statement under the heading of Right of Entry Permit Issue.

32. There were a couple of other new organisers employed either in late January or in February, although they were appointments hy Diana as there was no advertisement process going on. The most corrunon places Union positions are advertised in is on the Unions NS W

website, which not only advertised Union positions in NSW but in the whole of Australia, and on Workplace Express. None of the positions filled by staff appointed by Diana I saw advertised on these websites, which can be found here: http://www.unionsnsw.org.au!iobs and here http://www.workplaceexpress.com.au/nl06 rc job site browse.php . By contrast I saw .positions advertised by both the HSU NSW branch and the HSU Vic. No. 3 Branch

advertised on at least one of these websites.

3 3. I do recall that at one particular staff meeting, Diana advised the staff that at some point in the future the orgarnser positions would be advertised which staff could apply for, though no indication was given when this would be.

34. At another staff meeting we were told that the Union revolves around Diana as the Secretary. I recalled thinking how wrong that was. It is my view that the Union revolves around its membership and not around Diana or any secretary or Union official. I later raised tills with Kimberley, who indicated that from the organisers' point of view the Union revolved around Diana. I again indicated that from the organisers point of view the Union should revolve around the members, but Kimbe.rley just dismissed this.

35. It was late February or early March 2013 that I was told by Kimberley that we were getting another Industrial Officer whose name was Nathan Murphy. As I had been working long hours, often up to and beyond 8.00 p.m. because of the extremely heavy workload

~-'!~9,uhiFtbis .time, on the one hand J thought it was good news that we were getting another industrial Officer. However J did have concerns that the Branch had now been operating for a couple of months under its new leadership without positions being advertised, as far as I was aware, and I wondered when the appointment of people woulkkstop-,and- advertised, merit based selection of staff was going to corrunence.

36. I am not an apologist for the previous leadership of the HSU Vic. No. 1 Branch by any

stretch of the imagination, and one reason for this was that there was plenty of work that needed to be done that had not been done by the previous leadership. For example there were a number of enterprise agreements that had long since expired that needed to be negotiated but had not been, as well as individual matters where members had been waiting months for

the Union to assist them. The result of this was that my workload was extremely,heavy, not just performing the work an Industrial Officer, but also continuing to do the work an organiser would normally do. For example I recall things got to the stage where, on the Australia Day weekend in 2013, I caught the train out to regional Victoria to meet with members to get details and documents on a back-pay issue because it simply had to be done and there was no one else to do it. Normally I would have expected an Organiser to obtain this information and then pass it on to the relevant industrial staff member. As such, the

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prospect of employing another Industrial Officer was one that I supported, so long as they

were employed in an appropriate manner and had the experience to perform the work.

37. When Nathan Murphy was appointed by Diana, given what I had seen transpire in the

Branch in the past couple of months, J did what people often do these days and did a Google

search on Nathan. What l saw suggested that Nathan didn't seem to have the experience to

he an Industrial Offic~r. Prior to being employed at the HSU Vic. No. l Branch, he appeared

to have been employed as a growth organiser at the A WU according to the A WU newsletter

found at the following link:

http://vic.awu.net.au/sites/vic.awu.net.au/files/update no 05 march 1 2012.pdf

(Annexure 6). Though he had worked as an organiser, the role of an organiser and an

industrial officer is very different one, and even as an organiser with the A WU some of his

actions appear to have left a lot to be desired if the CFMEU are correct in their newsletter

found at the following link: http://www.cfmeuvic.com.au/downloads/wage/cfmeuv-

~ springmagpglll.pdf .

(

38. 1 also noted that Nathan, from the time he was employed, seemed to be quite close to

Diana's husband David Asmar who was often in the office. 1 noted on two occasions Nathan

asking David if he wanted to go up to the roof as he wanted to have a cigarette. All this did

was heighten my suspicion that Nathan had been employed as he was close to Diana.

39. 1 freely admit that before lleft the Union due to my dismissal, that r was quite vocal in indicating to Kimberley, Dean and Nathan the inappropriateness of employing staff who

weren't selected on merit, didn't have the appropriate skills and experience for their

positions, and were only appointed because of their cormections with people at the Union. l was also highly critical of their actions in general and the manner in which they were running

. the Union . . ~.:tt~~~~~ -~~~ . . '"¥.''~..:."~· < ....... 40.~For-exa.mple, D~ Sherriff, Sasha Uzunov and Nathan Murphy were examples of people

who appeared to have been appointed to positions without their roles being advertised, and

being paid significant amounts of money not because of their skills but because of who they

were connected with at the Union. l understood Dean and Nathan to be connected with

Diana Asmar and her husband Davd Asmar through the Labor party, and Sasha Uzuoov

indicated to me he was a friend of ~berley Kitching's husband Andrew Landeryou. An

example of how inappropriate. Sasha was to work in the role he was appointed to was that on

his first day of employment at the branch he asked one of the administrative staff what an enterprise agreement was.

41. Nick Katsis was another appointment that appeared to have no previous experience in a

Union position and seemed to lack the relevant skills and knowledge for his position, but he

seems to have been employed at the Branch as he was a former Councillor on Darebin

Council with Diana. Initially Nick was employed as an organiser, but it is my understanding

that he is now employed as ·an industrial officer. Similarly another Darebio Councillor, Steve

Tsitas, appears to have been employed as an Industrial Officer with the HSU Vic. No. 1

Branch after my employment at the Branch was terminated. From the comments he has made

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at meetings involving Industrial Officers from a numb~r of branches of the HSU, it appears to me that Steve also lacks the relevant experience and/or qualifications to be an Industrial

Officer.

42. The Administrators had appointed a fmance manager, Stephen, who seemed to be doing

an appropriate job. However he was dismissed as, according to Diana, "he was making her go

through all these processes before I could spend money". Given all the alleged inappropriate

spending of HSU members' money that had been reported in the media, J thought ensuring

any Union money was spent only after going through the appropriate processes was the correct thing to do. Within hours (as opposed to any type of recruitment or selection process) of the former finance manager's dismissal Kerry Georgiev was actually working in the office

as the new Finance Manager. I thought that this was extraordinary.

43. After being terminated I sent an email to Kimberley Kitching in which I indicated that I

was aware of some inappropriate practices taking place, particularly with the appointment of various people colUlected with others in the Branch, but I didn't want to see any further bann

come to the HSU Vic. No.1 Branch members. As such I indicated to Kimberley I was

prepared not to expose the issues if we could work out some transition where I co!lld be

contacted about matters I had been dealing with so the impact to members was minimal.

Kimberley didn't respond to my email but I genuinely did not want to see <my negative

impact on the members, particularly after the recent history of the HS U, which is why I had

not publicly raised these issues until now. T have attached a copy of the email dated 7 March 2013 including a copy of one of my pay slips wmch I refer to later in this statement

(Annexure 7).

44. J was not privy to the salaries, terms and conditions of staff at the HSU Vic. No. 1

Branch, although J understand that Kimberley Kitching and Mark Donohue are on salaries

a11ouiid :$)'26 -.:· $1'25 k p.a. T understand that Luke Wall adage was appointed on a salary of ·' .

-, fi!i:n.ind $lOOk p.a and Kerry Georgiev on a similar salary. From a frnancial perspective, I considered tliat these were very large salaries to be paying people who were appointed

without any advertised process and seemed to lack appropriate skills and experience. I was

even more concerned that these and other appointments seemed to have been made on the

·basis of their fri.endship or cormections with Diana Asmar or other people in the HSU or Labor party.

45. I raised the issue with Kimberley Kitching that I thought it inappropriate people were

being appointed on the basis of their connections and friendships, but my concern:; were dismissed by her.

Right of Entry Permit Issue

46. I recall a discussion that occurred between Kimberley Kitching and I in January 2013 at the HSU Vic. No. 1 Branch office on Park Street in South Melbourne. 1 had been doing _

some routine work on either an Enterprise Agreement or an individual dispute, and I recall Kimberley started asiGng me questions in relation to right of entry Lype issues. T assumed that she was asking questions, on behalf of organisers who were having right of entry problems at

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workplaces, and so I answered her questions after which she retumcd to what she was doing. However, on a number of occasions f(jmberley continued to ask further questions about right of entry issues. Because she was asking more right of entry ques6ons I asked her why she

needed to know.

47. Kimberley told me that Diana was too busy to do her own right of entry training and testing and that she (Kimberley) was doing it for her. I believe 1 said to Kimberley that I didn't think that this was appropriate and I indicated that the person who was applying for the llight of Entry pemut was required to undertake the appropriate training if they wished to obtain a llight of Entry permit.

48. 1 didn't see Kimberley actually completing the test for Diana's Right of Entry Petmit but the circumstances around Kimberley asking me questions indicated to me that she was

actually doing the testing for Diana at the time of our conversation. As I have said, she asked me questions and went away and then returned to ask me more questions. It was at tllis point, after 1 asked Kimberley why she was asking me these questions, and she told me that Diana was too busy to do her own test and that she was doing it for her, all this suggested to me Kimberley was doing the test at that time.

49. I have been advised by the Fair Work Commission that the date recorded for Diana Asmar's Right of Entry test was January 25 2013. · Unfommately any documentation that may be able to confinn this date as being the date Kimberley asked me the right of entry questions referred to above I lost access to when I ceased to be employed by the HSU Vic. No .1 Branch. However from my rec;ollection, the day Kimberley asked me the right of entry questions referred to above, was around thls time.

50. 1 made observations earlier in my statement and J will repeat them again as they are r~leyant ·to the Right of Entry Permit issue. J have said earlier that an indication to me that proper processes were not going to be followed at the Branch was the way in which Dean Sherriffwas brought on board as a lead organiscr in late January 2013 as it became apparent

quite quickly that Dean did not have the skills or knowledge to do the job properly. J was immediately concerned about Dean's appointment and T formed the view that he didn't have the skills to be a lead organiser. This became clear to me whe1,1 I saw he couldn't find agreements on the Fair Work website, as well as the quality and content of some letters to employers which he initially wrote, which I found necessary to re-write for him just so that they dealt with the matters appropriately.

51. T have earl ier referred to a particular industrial issue in wlllch staff at the MacKellar

Centre of Barwon Health were being asked to pay to park their cars in the hospital car park, which they had not been required to do previously. I remember that Dean wanted to take industrial action over this, and when J explained to him that lawful industrial action couldn' t be taken outside of a bargaining period under the Fair Work Act, he seemed very surprised by that. I wondered how anybody carrying out the job of lead organiser could be surprised at· something so basic and J immediately became concerned about ills understanding of industrial legislation and issues .

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52. Dean then suggested that we simply re-write the Agreement which had been previously negotiated, .voted up and approved by the Commission as a way of dealing with this matter. When 1 explained to Dean that under the Fair Work Act we couldn't simply re-wtite an agreement that had been negotiated, voted up by staff and approved by the Commission he was also surprised. I thought it was extraordinary that a person in a lead organiser role would not have a basic understanding of how enterprise agreements operated and my concerns had

been escalated

53. I also found it necessary to explain to Dean issues surrounding the requirements for exercising the Right of Entry provisions in the Fair Work Act and in particular, what an Organiser is required to do. 1 have attached a copy of an email dated 29 January 2013 I sent

to Dean explaining what an Orgartiser is required to do . It is attached as Annexure 3.

54. I ha~e also earlier referred to recalling being advised by someone, it might have been

Leonie Flynn, that Dean had previously been charged and convicted of assault involving breaking a car window when children were in the vehicle. 1 -recall doing a Google search and finding a Herald Sun article that seemed to confinn this, and while I an1 .not naive enough to believe everything I read in the media, I was a little concerned about Dean being a 'fit and proper person' to hold and retain a Right of Entry _Permit on behalf of the Union. The article in question can be found at the following linlc http://wvr·N.hera1dsun.com.aulnews/victoria/dean-sherriff-career-saved/story-e6frf7kx-

1111113382408 (Annexure 5).

55. l recall that on the day of my termination which was 7 March 2013, I noti ced Right of Entry application fom1s on Peggy Lee's desk and 1 saw that one of the applications was Dean Sherriffs. I was aware of the assault issue I have referred to above and I went to Kimberley Kitchings office to discuss it with her. :-.~:~ ;~~i~-:: . 56, ·~·· :During our discussion, I raised the issue about whether in the context of what had be~n reported Dean could be considered to be a 'fit and proper person' to hold a Right of

( Entry permit under the Fair Work Act but Kimberley dismissed the article as not being true. Kimberley indicated to me that 1 was not in a position to know whether the article was or was not true and then she went into a rant which seemed to be based on Kimberley's and her

husband's previous negative experience with the Age newspaper.

57. There were other people appointed to the Branch who appeared to have been appointed without any knowledge of industrial relations issues and particular the Right of Entry provisions of the Fair Work Act. I have referred to Dean Sherriff but Jam also aware

of Sasha Uzunov who was appointed to a role at the Branch and he indicated to me he was a fiiend of Kimberley Kitching's husband Andrew Landeryou. An example of how inappropriate Sasha was to work in the role he was appointed to was that one his first day of employment at the Branch, he asked one of the administrative staff what an enterprise agreement was.

58. Nick Katsis was another appointment that appeared to have no previous experience in a Union position and lacked the relevant skills and knowledge for his position.

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59, Tcannot recall any meetings in which Diana made any announcements about Right of Entry Training, though while I was employed by the HSU Vic. No. 1 Branch I was not present at all staff meetings or for entire staff meetings as there were times were T was

required to be present at meetings in members' workplaces.

66,- it should be noted that at the time I was terminated by the HSU Vic. No.1 Branch my

Right of Entry pennit was in my office at the HSU Vic. No.1 Branch. As the Branch would

not resp~nd to my attempts at communication with them, J was not able to get possession of my Right of Entry permit and return it to the Fair Work Commission. As such I signed and

had witnessed by my local GP a Statutory declaration to tltis affect and faxed it to the Fair

Work ·commission.

Holding Redlich ..•

61. Jn early January I was introduced by Diana and Kimberley to David Shaw from H olding

~ Redlich. I .also attended a function at Holding Redlich where David Shaw made it quite clear that he was very supportive of Diana and had known her for a number of years, At one point

while describing their relationship David became quite emotional and it demonstrated to me

that they were very close.

62. Kimberley indicated to me in January that the Union's legal work was going to be put out

to tender, though she indicated that she thought that Holding Redlich would be successful in

obtaining the Branch's business and she also made it clear that Maurice Blackburn would not be successful. I believed that Maurice Blackburn would not be successful because Kimberley

had previously indicated to me that it was her view Maurice Blackburn had been supportive

of Kathy Jackson. Given Diana's association with David Shaw and Holding Redlich and

Ki~be,rley's comments, I did get the distinct impression that the tender p rocess would be a

.:m~.r~_;f.f<i?..li!Jlality, and that Holding Redlich was guaranteed to be the successful tenderer. Of 'l".'...-l.~ ..... ..;.t:'l~ ... ~...-··-.

course I cannot be certain that this was the case. 0'

63 . However even before the branch's legal work was put out to tender, work was given to Holding Redlich. Kimberley encouraged me to pass on work that I was too busy to do on to

Holding Redlich. While there was plenty of work I could have passed on to Holding Redlich

given my 1lt1avy workload, I was fully aware of the cost involved in using any law firm to

undertake industrial work, and had concerns about doing this. I indicated this to Kilnberley,

and even though she initially said to hold off while she looked into it, she later indicated to

me again that I could pass on work to Holding Redlich, though I still limited what I passed on due to the potential costs for the Union.

Campaigning

64. Kimberley was a constant name dropper when it came to members of the Labor Party.

She constantly told me which prominent members of the Labor party she had had d inner or lunch _with, or when she had been on the phone with them, She constantly referred to the fact · that she regularly had lunch on the weekend with Bill Shorten and his wife, and indicated that HSU Vic. No.1 Branch was discussed .

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65. Wrule ](jmbe:rley often locked herself inside her office when taking phone call s,· on a number of occasions I heard Kimberley on the phone during work hours refer to "the party"

which I took to mean the Labor Party, and "pre-selection" which J assumed meant pre­

selection to run as a Labor Party candidate in a scat, though I do not recall any specific seats

being mentioned.

66. On a couple of occasions she specifically told me when she had been on the phone with either Michael Danby or Martin Pakula given their families' association with Poland and my

own Polish background.

Informal Branch Meetings

67. I observed many informal meetings occmTing at the Branch involving Diana, Kimberley

Kitching, Dean Sherrif, the fmance manager Kerry Georgiev, Mark Donohue (prior to his

leaving for the USA for a few months) and Nathan Murphy when he commenced. TI1ese

~ were regular meetings to which I was never invited and they lasted anywhere from half an

hour to significantly longer. I often wondered what the point of these regular meetings was. I wondered for example, if these were meetings about finances requiring Kerry's attendance,

why would Dean he there while Leonie Flynn as Assistant Secretary I Treasurer was not. Alternatively, if these meetings were about industrial issues, there did not seem to be any

reason for Kerry to be there as the finance manager, while I should have been there.

(

68. On top of all of that I wondered why my input was not sought as the Senior Industrial

Officer. This was even more disconcerting when Nathan commenced working at the Branch

and I saw him participating in these meetings in the days leading up to my dismissal. Not only was my input not sought, I was never asked to provide formal or detailed reports to the

~:'l:~.~-8~-~_!!t of the Union or to the Branch Committee of Management. This type of ,. ,·"'~b.¢liaw0~;~w?s causing me an increasing amount of frustration as it was not how Unions

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· i~~~-!:M ;>qp·erate in serving members. Even though producing such reports would have involved more work for me, I did know and accept that this was an important part of any

Industrial Officer position, yet Diana and Kimberley seemed to have no great interest in the work I was doing.

Position of Assistant Secretary Treasurer.

69. I Teferred in the earlier part of my statement to the election in which Leonie Flynn was

successful in being voted as the Assistant Secretary Treasurer. I recall that both Diana Asmar

and Kimberley Kitching made comments to the effect of that they wanted to keep Leonie out

of the ·loop of things as much as possible. Diana and Kimberley open! y said that they did not

trust Leonie and that was because Leonie had run for the election on a different ticket to Diana.

70. I made the observation that Leonie was not involved in the very regular meetings I mentioned above involving Dean and Kerry, and Leonie indicated to me how Kimberley and ·

Diana were excluding her from her financial responsibilities, even though she had been elected as Assistant Secretary 1 Treasurer. All of the behaviour I observed from Diana and

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;~.:..-~----·· ·· ··Kfiri15erley_-was consistent with them keeping Leonie out of any involvement in the running of ~:~~,. :.:;--;-_ · · the-Bnintl1~While I understand Leonie was on a different ticket to Diana, the simple fact was

~t~;,:~~- ·;th~t she',l:ias :l)'een elected by the members just like Diana had, and as such ·she was entitled to

~f::;\\~1 f}>:: :be;mv~lved :~udheTtl11Jling of the branch. ~i~~*-~·_:..;~: '"' . ~ .. -~ . .;,. -- -~-'~'-. :. . ... •:--- ~- - :!'wl • ...,;._ ~-~~ •• :. •. :;....... • ... !;-:.. . • •

r;:s-:-.;:_ · , M_' ' . . Y-_'.D.isniissal .. :::: . .. .

; : .. : : . ... 7i. :~l-iem~~bet: an ·incident in which Dean Sherriff asked me by email if 1 had a file on a ~ · . ·:· ·''. ;parti~rif~r ~1atter.1 had already spoken to Dean about this matter, in particular how to find the "·· · :·· -- -·' · ~ · ~ -mfonnati~n tha:t -he was seeking. However Dean had been unable to do this, meaning that I

. ·-~as reguired tqJind the information. The fact that Dean was now asking me about this again __ .. ___ _ -w.a~·.:cxtr'eu'J.eiy-:frustrating and concerning. An email exchange followed between Dean and 1

in ·.which .Lstatea to Dean that you can't just provide jobs to your mates from the Labor Party ....... . · .anCI,expect:them to be able to do the job properly. My comments were made out of frustration with :.P~qpf~ ·'being employed by the Branch without merit selection to perform roles which they .. di3;not ·appear to have the appropriate qualifications or experience for. Instead staff at the:B·ninch~secmed to be appointed on the basis of their friendship or association with other peopfe~at the· Union, and I felt J could no longer keep quite on the issue (Email exchange attachea ·as ~exure 8).

72: I was · also extremely frustrated by the lack of support and commitment fi·om Diana and Kimberley. In the days leading up to my termination I asked Diana to sign a Form Fl8 Declaration of Employee Organisation in Relation to Appl ication for Approval of Enterprise Agreement so that it could be lodged with the Fair Work Commission, as it had been decided that we would oppose the application to approve the agreement. Despite numerous requests for Diana to sign the form over a number of days, the form was not signed. On one occasion I

-~CI.J-J":·~o -l(imberley to ask her -to get Diana to sign the form and 1 was told that Diana had gone ·- ·. ""'/''· ~.~'liQm&forthe ·da,y, even though it was just after 4pm. Despite my numerous requests that tbe

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(

·forfu<be signed, when I was terminated the form still had not been signed by Diana.

73. This comment of mine referred to above, that you can't just provide jobs to your mates from the Labor Party and expect them to be able to do the job properly, was obviously not well received by others in the Branch and led to my dismissal.

74. In the conversation with Kimberley where I was tenninated, Kimberley referr:ed to this

comment in the above mentioned email to Dean where I said you can't just provide jobs to your mates from the Labor Party and expect them to be able to do the job properly and indicated this was reason I was being terminated. Kimberley made a comment to me in

response to what was pcrcei ved to be my criticism of the appointment of Nathan Murphy that it was not my decision to make. At no point however did she indicate that what 1 had said was not true.

75. The day I was terminated and left the office of the HSU Vic. No. I Branch, I forgot to turn off my computer. I recall catching the tram home and speaking to some people while on the tram about my tennination. When I got home 1 logged back on to my HSU email account to get copies of some personal emails I had received. In between the time 1 had left the HSU

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889

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office and the time I got home, someone had used my computer to send one of my pay slips to an email address associated with Kimberley ](jtchings husband Andrew Landeryou at Vex news. There were only three people left in the HSU office when I left the day I was

· terminated and they were Kimberley Kitching, Dean Sherriff and Nathan Murphy. I had every reason to believe that Kimberley ](jtching had sent her husband an email to a Vex news email account which did not appear to be publicly available at that time and which was not known to me. I am unable to substantiate that it was definitely Kimberley because there were

two other people i.n the HSU office when I left.

76. After seeing my payslip had been forwarded to Vex news, and being aware of the allegations Kimberley, Dean and Diana had made about Kevin Bradford's work, I took the

opportunity on the night I was terminated to also forward to my personal email account emails that .could verify certain issues 1 had raised with Kimberley, in case she decided to

allege that I was dismissed on the basis of unsatisfactory performance or serious misconduct. 1 could then use these em ails to defend myself if the need arose. I have the payslip which was sent to Vex news and the email I sent to Kimberley regarding my payslip being sent to Vex News, which is included in Annexure 7.

77. After I was dismissed from the HSU Vic. No. 1 Branch I was employed by the HSU Vic. No. 3 Branch the following week, on a casual basis at first, and then on a permanent basis from 10 June 201 3. I became aware that Kimberley Kitching had made an allegation that I had punched walls and doors after I was terminated and became violent as a result of my dismissal. Because this was not true, and in order to protect myself from false allegations, 1 went and had an examination performed by a GP to examine me for any injuries or signs that I could possibly have been involved in any such incident. Of coLITse I was not involved in any such incident, and the GP verified there was no sign I had been, but I wanted to have objective evidence about that. - · ... :n~!-4;:--A . -..· ·"' :-:::--· ' JC';!!I • , ;

78. t was also advised that Kimberley Kitching had claimed that I was the person who had sent my own pay slip by email to her husband at Vex news although, as I have said above, I am aware it was sent to an email address which was did not appear to be publicly available at that time and to which I did not have access. It was clear to me that Kimberley Kitching or someone else in the office had sent the email between the time I left the HSU office and anived home in order for her husband to somehow use that information in Vex news if the need arose. The payslip in question was the one I received just prior to Christmas that had my leave loading paid in it, as well as unused RDOs, and as a result the amount I was paid in that pay cycle was more than I would normally be paid. I suspect that this payslip was chosen for this reason so I could be "discredited" on the basis of how much 1 was paid if I publicly raised how much K.i.mberley and others in the branch were paid.

79. I understand that this statement may be provided to the HSU.

Signed .... .Date ....

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890

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(

L~e.Pil< ki (Peggy)

States:

1. My name is Peggy Lee and 1 am currently employed in a role and by an

employer known to the fair Work Commission.

2. I was previously employed as an Industrial Agreements Officer with the

Victoria No 1 Branch (the Branch) of the Health Services Union (HSU).

3. I would like to commence this statement oy putting some things into context.

Firstly, I consider myself to be an honest person and consequent! y the facts and events

that I will set out in this statement will be absolutely truthful to the best of my

memory and ability.

4. I make this statement understanding that nothing I say in it can be l!Sed u1 any

preceedings against me. 1 also ·undcrstund however, that there would be very setious

implications for me if I were to include something in this statement that 1 knew to be

false or that 1 did not know to be true. I understand I do not have to make this

statement but I am aware that if the Fair Work Commission (FWC) was to have

exercised compulsory powers under the Fair Work Act 2009 to require information

from me, then that would have resulted in the same outcome. The reason I point this

out 1s that I will be including in this statement thut because of the pressure I felt I was

under while at the Branch, I actually completed Rigbt of Entry Tests for other people

knowing that it was wrong to do so.

5. 1 would also point out that while I am willing to make this statement, 1 was

approached by the FWC and requested to provide infonnation and make this

statement and not the other way around.

6. When I initially found out that the FWC wanted to speak to me about this

matter, I was in Hong Kong on holidays. Whehl was eventually contacted by the

FWC I made it clear that while 1 was willing to tell the truth, I did not want to make a

statement because 1 was concerned about the rt.1Jercussions of doing so if the HSU

was to become aware 1 had made a statement.

891

7. I continue to be anxious and concemed about making this s tatement because I

will be explaining things that other people from the Branch have done and l ~m

concemed about the repercussions from that. 1 have a new job and have moved on

from the HSU and so it is stressful for me to be providing this infonnation and

making this statement

8. One of the main reasons that Tam willing to make this statement is that 1 have

thought about it and I understand it is the right thing to do even if it is stressful for me.

l hove already verbally told the FWC about the things that occurred with Right of

Entry tests at the HSU and so this is a way offonnally putting what I have said in

writing. I will be relying on my memory fo r some the details in this stntcment as well

as the dates recorded jn emnils and tests.

Background

9. I was originally employed at the HSU in 2009 as an Administration Assistant.

10. 1 wa~ at the HSU in 2012 prior to the elections which occurred to re-constitute

the Branch. Although I assisted in the election campaign for a ticket run by Marco

Bolano in my own time in 2012, l did not perform any of that assistance during work

time.

11 . After the elections of20 12, Diann Asmar was elected as the Secretary and

Leonie Flynn was elected as the Assistant Secretary Treasurer.

12. At the end of December 2012 and in January 20 I 3, a lot o f the staff who had

been at the HSU for some time were leaving the Branch.

13. Although I am not sure about, I think it was because that I was not considered

to be part of the previous leadership and that I had knowledge about the operations of

the Union that I was able to continue in my role as an Industrial Assistant.

2

892

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- . .. .. __ .,. :J~!!!l_ary .2013

1 ~. FromJanuai'Y 2013 I continued in my role as the Industrial Assistant.

]5; Very early in.2013, Diana asked me to mnnge for !he obtaining of Right of

Entry (ROE) permits for organisers. The reason Diana asked me to take on this role

was·partly because 1 was the Industrial Assistant, I had previously kept the folder for

Righ~ of Entry Penn its and I was one of a few people who knew how to deal with

Rjght ~of Entry.'Penn its.

'16. Based 6n my previous experience l explained to Diana !hat !ipplicants were

,required to complete the ACTU ROE course and then lodge an appl ication with the

'-Fair Work.Commission (FWC) for approval. It has been explained to me that Ms

· ;\smar.has sugges_ted 'that I told her that the previous leadership had allowed

··organisers taking tight of entry tests to have a list of answers for the test. I can say

that as far as~T know, organisers did not have answers to the ROE tests and I did not

tell Diana that they did.

T7. · Diana told -me that 1 was to be the perso11 responsible for the administrative

process involved in collating forms and infonnation and processing ROE applications.

'f \.Vias)he·contact:person for contact between the Branch and the ACTU, including

-follow up inquiries, ensuring that Branch applicants and lhe Secretary signed the

.ap'ptopriate forms and general administration of the process.

18. After Diana had instn1cted me to be responsible for the ROE process, l

commenced having a range of conversations with the organisers ubout the ROE

processes and commenced obtaining and collating the fonns required for Diana and

the,organisers to enrol in the ACTU course.

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893

Diana Asrnar's ROE application

19. Diana Asmar was the first person to enrol in the ACTU ROE course for 2013 .

I was responsible for forwaJding the application forms to the ACTU.

20. I recall very early in 2013 that Diana asked me what had happened to her

application because she needed her ROE Pennit urgently to attend an employers site.

I recall telling Diana that she needed to do the actual ACTU test so that 1 could

process the conect forms to tbc FWC and Diana seemed to understand that.

21 . I rcc<~ll that it was soon after that conversation I received Diana's Certificate

of Completion and 1 recall processing it as an 'urgent' request to the f-'WC. Within a

couple of days of me sending the ROE documents to the FWC by email, Diana's ROE

permit was iss11cd and rctumcd.

22. I am not able to say whether Diana completed her own ROE test as l was only

involved in the administration of the fom1s .

23. I recal.l that after Diann had received her ROE permit, we were at an Industrial

meeting and it was obvious that Diana was very pleased about having her permit and

she was making the point that she was the 1irst person at the Branch to have a ROE

pem1it issued. l recall at the meeting Diana was saying something about organisers

needing to get their permit~ as soon as possible.

Organisers ROE Tests

24 . As I have indicated above, I had a range of conversations with the various

organisers and advised them during those conversations that an application firstly had

to be made to the ACTU to enrol in the ROE course and that the organisers would

then receive an email from the ACTU which would contain their log in detuils and

passwords. 1 explained to the various organisers that they would then have time to

act:css thl! course on line and complete the required test in their own time.

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894

25. I actually advised the organisers that with the information provided by the

ACTU in the course, the test was very easy and I assured each of the~ they would be

able to do it. I advised the organisers that after they J1ad done their on-line tests, they

·wotild receive their Certificate of Completion which they could forward to me so I

could continue with the nex.t step in the process.

26. After l had advised the organisers about all of the steps involved in enrolling

i.n the ACTU course, completing the tests and forwarding me tl1e Certiftcates of

·Cotnpletion, I recall collating and submitting to the ACTU various application fonns.

1 recall forwarding some emails to the Fjnance person Kerry Gcorgiev so she could

expect the invoices for payment of the courses.

· 2-7. Once a number of organisers like Jnyne Govan, Steve Mitchell, Dean Shcn·iff

and others had been enrolled in the ACTU course, as far as I was concemed, it was a

. rh'atter O'fme waiting for their Certificates of Completion to be forwarded to me so 1

ocould continue with the next steps in the process.

28. [recall that a couple of weeks went by <md r was asked by Diana what had

happened to the ROE applications. I told Diana that I was waiting for and had not

re·cejved any of the test results or in other words, the Certificates of CDmpletion so I

. ·~~~~:~~raoulJnuewi.th the process . . t'~' .. )':.;;·_;

29. lt was after that conversation that l became aware tbat Diana asked the

. organisers to forward the emails they had received from the ACTU containing t1leir

course access passwords to Kimberley Kitching. Because the organisers then started

forwarding their ACTU emails with course access passwords to Kimberley, that

meant that the people who could access an organiser's ACTU course and tests were:

• The individual organiser;

•• Diana Asmar because the ACTU copied Diana into their retum emails; and

· • Kimberley Kitching because Diana had told the organisers to forward the

ACTU cmail s to Kimber-ley.

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895

30. As far as I know, other people could not access an organiser's ACTU course

and on-line test without the password. Diana had not issued an instruction to the

organisers to forward their ACTU emails containing their passwords to me so I didn't

have access to them.

3 l. There were two occasions that I needed to get a copy of organisers Certificates

of Completion. At one point I needed David Eden's Certificate of Completion to

complete the administration of his application and in order to get a copy l emailed

Kimberley Kjtching asking her for a copy. l will refer to the email I sent Kimbedey

and the··reply I received later in my statl:!mcnt. There was a further occasion when I

needed to get a copy of Darryn Rowe's Certificate of Completion and I em ailed the

ACTU asking for his password so l could access the system to get a copy.

32. There were only two instances that 1 recall where I was required to email the

ACTU to get copies of the em ails which had been sent to organisers containing their ·

ACTU passwords. As I say above, one of these was for David Eden and the otl1er

was for Danyn Rowe. I will explain these in further detail later in my statement.

33. As far as I know then, apatt from the individual organiscr, it was only Diana

and l(jmberley who could access all of the organisers ACTU ROE accounts.

34. I recall that it was around the time that Diana told the organisers to fotward

their ACTU emails to Kimberley that Diana kept asking me about the ROE tests.

Diana later started to get very angry that the tests hadn't been done. I recall her

telling me that the organisers needed the ROE pennits and I recall Diana mentioning

the names of Dean Sherriff: Rob McCubbin and Nick Katsis as being people who

needed permits. l told Diana thai the organisers hadn't done their tests.

35. I also recall on one occasion having a conversation with Diana while we were

in a corridor of the branch. During a conversation about ROE permits, Diana directly

said to me 'Could you do the tests?' Diana was asking me to do the actual ROE tests

for organisers which was something 1 knew was wrong and my response to her was

'No.'

•

•

896

36. 1 recall that Rob McCubbin was nearby to us at the lime and Rob said

s0 mething about the organisers not having to do the tests themselves and 1 also replied

directly to Rob by saying 'No.' By saying 'No' to Rob, I was making it clear that as

Ja1'·as::T was concemed, the organisers would have to do their own tests and after that I

:·J~st•walked away.

~·3·1. After that f was about to go on leave and I recall that before I did I forwarded

:tiil·ofthe ROE application fonns to Kimberley Kitching. My emails forwarding the

. . · _: ~QE•ap.plications to Kimberley will be in the HSU system somewhere. I was hoping

~tbatill dfthe permits would have been completed by the time I got back from my

·leave.

·'''3:S: I sta11ed my leave on 13 February 20 IJ and flew to Hong Kong on that day.

:·iSfsitedmy family in Hong Kong and r returned to Australia on 6 March 20l3. -.-._:.·

· '39. While I was holidays in Hong Kong between 13 February 20 I 3 and 6 March

· ,20l3, 1 can say as a matter of c,ertainty that 1 did not access the ACTU on line system ·i[~

;,·~or have·anything to do with ROE permits. ~:i- :!; .

--~'f~ ·~--·

'21.0,· T :tetumed to work at the Branch in early March 20 I 3.

_;·- ·

· ·' AJ. When r d.id return to work, I recall having a conversation with a colieague

Alex Leszczynski who advised me that he had heard that 1 was going to be sacked and

.· ,replaced in my role. That caused me a lot of stress.

Bundle oTApplicatious, Permits and test results.

42. .A few days after I returned from my leave, the receptionist Jeani ne ha11ded me

.a bundle of ROE applications, Certificates of Achievement and ROE test results

s~tiii!g out the applicants scores and she said that she had no idea what to do with the

·· '·f9rms. J am ,not sure jfJ remember all of them, but 1 remember some ofllle people

: .. ·the fo?fts wer.c for including Dean Sherriff, Nick Katsis, Rob McCubbin and Jayne .,· .:. Govan.

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897

43. Jeanine didn't seem to have knowledge or understanding of the ROE

requirements or processes and she asked me if I could take the fonns and do whatever

needed to be done with them. I remember Jeanine was holuing the fom1s and she was

saying 'they asked me to do this, and 1 have no idea what to do with them '. 1 just said

'put them on my desk and I will deal with them'.

Conversation with Kimberley Kitching

44. I remember being very disappointed about having to deal with this bunule of

pennits ·because Twas hoping that this whole permit issw.: would have been resolved

by the time l got back from leave. I recall later taking the bundle of applications,

Certificates and test results into Kimberley Kitching's oftice and I recall discussing

the pem1it issue with Kimberley.

45. During the conversation, Kimberley started telling me how she had completed

ROE tests for the organisers. 1 think it was during this conversation that Kimberley

told me she had failed the first ROE test and didn't get more than about 70% or

something like that. As the conversation went on, Kimberley got very ex.citcd as she

told me how she became very familiar with the sections of the Act that were ubout

ROE tests and she was excited to have achieved I 00% in some of the tests she had

completed. I am ccr1ain about Kimberley telling me these things but I am not 100%

certain that she told me all ofthcse things in the same conversation. This is because

we had more than one convt:rsation io which Kimberley talked about her doing ROE

tests for organisers.

46. lt was clear that Kimberley was talking about having done the ROE tests for

the organisers whose fon11S were in the bundle of documents Jeanine had handed to

me aud which I took into Kimberley's oCfice. These organisers included Dean

SherTiff, Nick Katsis, Rob McCubbin and Jayne Govan because as I said earlier, these

were some of tl1e people who I recaU the fom1s were for.

4 7. After I ldt Kimberley's office, 1 remember that a colleague Alex Leszczynski

h(lppened to be looking at the ROE fonns on my desk and noted that Dean SherrifPs

form was on top of the pile. Alex had an issue with Dean's ROE application and went

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..... :;.....-.... --~ .... -___ -_ ~ __ and_ spoke to Kimberley about it. The issue had something to do with some type of

- .· · ·-::~-conviction .pean was supposed to have had which I don't think was declared in his

·--~· application. Alex went into Kimberley's office and spoke to Kimberley about the

-~: issue but didn't seem to get anywhere.

48 . It was a_round this period that I stnrted to really feel the pressure from Diana

. : wanting me to do the ROE entry tests for organisers. 1 was hoping that David Eden

~md .Darryn Rowe muy have done their own ROE lcsts while 1 was on leave although I

~:... -··became aware they hadn't been compl eted.

49. r recall at one point 1 was collating the ROE fonns for Darryn and David and J

. ·~. noticed their Certificates of Compl etion weren't attached. I remember sending an

email to Ki mberley Ki tching dated 12 March 20 13 in which I asked Kimberley to ~

· send r{.e David Eden's certificate of completion. Kimberley responded by tell ing me -...

she was on a leave day and also telling me _to ask David for his log-on details for the

ACTV course which would allow me to print out the cettificate if he had already done

-~ his test. A copy of the email I sent to Kimberley on 12 March 2013 is attached to this

statement as Annexure 1.

-'50. I continued to process the application fonns for the organisers to be issued

with ROE_pennits by the FWC. I sent an email to a number of organisers on I 5

'March 20 [3 confinning that I had lodged their penTJit appl ications with the FWC.

'The organisers I had sent the email to were the people whose fonns l had received

.fr?m Jeanine which I had taken to Kimberley Kitch ing. Those organisers included:

.. Jayne Govan;

• Sacha Trajccvski;

• Dean Sherriff;

.. Lee Atkinson; and .. - Steven Mitchell .

51. ·J copied both Kimberley Kitching and Diana Asmar into that email. 1 am not

sure:why I didn't include Rob McCubbin in that email but I do recall that I couldn' t

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get Nick Katsis to sign his fonn for a few days so I forwarded his appUcation a few

days later. A copy of the email l sent to the people listed above is also attached to this

statement at Anncxmc 2.

52. I remember that it was still an issue that David Eden and Darryn Rowe had not

done their ROE tests and I recall again going to Kimberley's office and telling her

about it. I remember Kimberley ignored me as 1 stood at her doorway explaining to

her that the tests hadn't been done. Kimberley was nom1ally nice to me b11l 1 recall at

that time she seemed to ignore me and I was disappointed with that.

53. David Eden and Darryn Rowe were country organisers and seemed to spend a

lot of time doing things together. They seemed to share the same email account at

times und there were times when if I couldn't get in contact with David Eden, r would

email Darryn Rowe and David would find out through Darryn that I was wanting to

contact him.

54. Because they were country organisers, Darryn und David were not in the

Branch office aU the time so when they were in the office, r got them to sign the F42

Application for Pennit fonns although they did not date them. The reason l got them

both to sign the fom1s before they had done the tests was so that I could have s igned

forms ready to process once the.ir tests had beeu done and l could access a copy of

their Ce1tificates of Completion.

55. Both Darryn Rowe and David Eden's F42 Applications for Pennit are also

attached to this statement. 1 recognise my handwriting as writing the date of2l

March 2013 above Darryn Rowe's signature in the declaration. D.i ana Asmar has also

signed the F42 Application for Pennit ofDarryn Rowe although Diana actually dated

the fom1 herself. The Fom1 F42 for Darren Rowe is marked as Annexure 3. 1 also

recognise my handwriting as writing the date of26 March 2013 above David Eden's

signature ou his Form F42 and Diana dated the form 26 March 2013. Form F42 for

David Eden is n1arkecl as Annexure 4.

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