RE2013/426, Transcript of Proceedings [2015] FWCTrans 283 (14 May 2015)

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PN1

THE VICE PRESIDENT: Can I have the appearances, please. Confirm the appearances, perhaps.

PN2

MR R VAN DE WIEL: Good morning, your Honour. I appear, together with my friend, Mr Champion, on behalf of Ms Asmar, Mr Katsis and Mr Mitchell.

PN3

THE VICE PRESIDENT: Thank you, Mr van de Wiel.

PN4

MR MATTHEWS: Your Honour, I seek your permission to appear for the first two witnesses, this morning, that is, Mr McGregor and Mr Leszcynski. Matthews is my name.

PN5

THE VICE PRESIDENT: Yes.

PN6

MR MATTHEWS: I can elaborate why that permission is sought if required, but, in short, simply to keep cross-examination within proper bounds, but we would anticipate there might be some attack on credibility and reliability.

PN7

THE VICE PRESIDENT: Yes. Do you have any objection to that, Mr van de Wiel?

PN8

MR VAN DE WIEL: It’s not unusual for witnesses to be represented. If you deem that it’s appropriate, seeing there’s no contradictor, I’m not going to stand in the way.

PN9

THE VICE PRESIDENT: Yes. In the circumstances, I think it’s appropriate to allow you to appear on behalf of those witnesses, Mr Matthews.

PN10

MR MATTHEWS: As it pleases.

PN11

THE VICE PRESIDENT: I grant you whatever it is I’m granting you, permission to appear on their behalf. We have a schedule of witnesses to be called in the matter. Mr van de Wiel, do you wish to make any statement, at the outset, or should we simply proceed to call the witnesses?

PN12

MR VAN DE WIEL: I do want to make a statement at the outset, and that’s this: I’d seek for witnesses to be ordered out of the Court, and only be present during the time of their evidence, other than the parties who are the subject of this inquiry.

PN13

The matter directly is, I think, there was a direction, if it be called that, certainly a request; whether it’s a direction or request, it makes no difference, I’ll respond to it, in any event, in relation to Ms Asmar, in terms of telephone records for 25 January. Ms Asmar was using a prepaid phone, and, accordingly, there are no records, at that stage, available for us to produce. In terms of emails between Mr Katsis and Ms Kitching in respect of communications on or about 15 February, Mr Katsis has made a search of available equipment, and is unable to produce any. That might be something that’s more appropriately dealt with when he gives his evidence, but, at this stage, I can indicate to you that we don’t have any of them.

PN14

THE VICE PRESIDENT: Okay. Thank you.

PN15

MR VAN DE WIEL: I say this: in relation to Ms Kitching I would probably seek to address you about that after lunch today, and I’m making some inquiries about her.

PN16

THE VICE PRESIDENT: Yes. Well ‑ ‑ ‑

PN17

MR VAN DE WIEL: She’s no longer in the employ of the union, and, as at today, she’s certainly interstate, so I don’t know what’s happening with her, and I’m trying to make some inquiries, because that’s something I’ll address to you later today.

PN18

THE VICE PRESIDENT: Yes. Very well. I think it might be appropriate that witnesses, until they give their evidence, are not in attendance at the hearing. That would be a normal procedure in a Court or similar proceedings.

PN19

MR MATTHEWS: We see, your Honour, that Mr McGregor is first and, as it happens, that’s very convenient, Mr McGregor has a Health meeting this afternoon, so that was proposed to be the order that you would proceed with that. We’ll ask Mr Leszcynski to leave.

PN20

THE VICE PRESIDENT: Yes. So, Mr McGregor is the first witness. Mr McGregor can come to the witness box, and all other witnesses, who are proposed to give evidence, if they could leave the courtroom.

PN21

MR VAN DE WIEL: Mr Mitchell and Mr Katsis can remain, with respect. They are parties to the proceedings, and entitled to hear what’s alleged against them, with respect.

PN22

THE VICE PRESIDENT: Yes. I think the situation of a party to the proceedings is in a different category, and I don’t propose to exclude parties to the proceedings.

PN23

MR VAN DE WIEL: Yes. That’s Mr Mitchell, just so that - I’m identifying for you.

PN24

THE VICE PRESIDENT: That’s Mr Mitchell. Yes.

PN25

MR VAN DE WIEL: And that’s Mr Katsis.

PN26

THE VICE PRESIDENT: Yes. Thank you.

PN27

MR VAN DE WIEL: And Ms Asmar is seated there.

PN28

THE VICE PRESIDENT: Yes. Thank you.

PN29

THE ASSOCIATE: Could you please state your full name and address.

PN30

MR MCGREGOR: Craig Ferguson McGregor, (address provided).

<CRAIG FERGUSON MCGREGOR, AFFIRMED [10.08 AM]

<EXAMINATION-IN-CHIEF BY MR MATTHEWS [10.08 AM]

PN31

THE VICE PRESIDENT: Thank you. Please be seated, Mr McGregor. Mr Matthews, do you intend to read any evidence formally? There’s a statement that has been filed.

PN32

MR MATTHEWS: I can only indicate that Mr McGregor understands he is now to adopt the statement of 18 February 2015, under affirmation, and I can do that, if that’s convenient, and he doesn’t seek to make any changes to that statement. I’m in your Honour’s hands as to whether you’d like me to do that or – happy to do that by way of evidence-in-chief if it assists.

PN33

THE VICE PRESIDENT: Yes. First thing I need to do is to find it. I might need my Associate’s help. There it is.

*** CRAIG FERGUSON MCGREGOR XN MR MATTHEWS

PN34

MR MATTHEWS: We can certainly provide you with a copy if that assists.

PN35

THE VICE PRESIDENT: I think that might assist. I’ve got a pile of material, without any order to it, in front of me at the moment, and I’m not sure where it might be.

PN36

MR MATTHEWS: Yes.

PN37

THE VICE PRESIDENT: Thank you, Mr Mitchell (sic).

PN38

MR MATTHEWS: Handing that up to you now, and perhaps I put another one in the hands of Mr McGregor, if he hasn’t already got – you have one with you, Mr McGregor?‑‑‑Yes.

PN39

Do you have before you a statement of two-and-a-half pages dated 18 February 2015?‑‑‑That is correct.

PN40

With your name on the third page?‑‑‑Yes, it is.

PN41

Are the contents of that statement true and correct?‑‑‑Yes, they are.

PN42

Is there anything you would like to alter or add?‑‑‑No.

PN43

I tender that statement, your Honour.

PN44

THE VICE PRESIDENT: So I’ll mark that statement exhibit 1 in these proceedings.

EXHIBIT #1 STATEMENT OF CRAIG FERGUSON McGREGOR DATED 18/02/2015

PN45

MR MATTHEWS: As your Honour pleases.

PN46

THE VICE PRESIDENT: Mr van de Wiel?

<CROSS-EXAMINATION BY MR VAN DE WIEL [10.10 AM]

*** CRAIG FERGUSON MCGREGOR XXN MR VAN DE WIEL

PN47

MR VAN DE WIEL: Thank you, sir. Mr McGregor, did you make a statement before that one?‑‑‑To the Trade Union Royal Commission, yes, I did.

PN48

Who did you make the statement to at the Trade Union Royal Commission?‑‑‑Who did I make it to?

PN49

Yes?‑‑‑I guess Haydon. I’m not sure exactly what you mean by that.

PN50

You didn’t give evidence at the Royal Commission, in relation to this matter, did you?‑‑‑No, I didn’t give evidence. No. I was requested to provide a statement.

PN51

Were you interviewed by a member of the Royal Commission support staff, for the purposes of making your statement?‑‑‑I spoke to the Royal Commission. I don’t know whether there was – it was for the purposes of making the statement. I couldn’t ‑ ‑ ‑

PN52

You made a statement, which was provided to the Royal Commission, in November of 2014; isn’t that right?‑‑‑That seems about right.

PN53

Yes. So – excuse me for one second. Did Ms Southwell, from the Royal Commission’s solicitor, who was part of that Royal Commission, take a statement from you?‑‑‑No.

PN54

Did she speak with you?‑‑‑Yes.

PN55

Yes. In the course of speaking with you, did she tell you what she was interested in asking you questions about?‑‑‑She had some questions for me. Yes.

PN56

Yes. What were those, sir?‑‑‑It was quite a while ago, and, you know, I don’t really remember the detail of those questions. Largely they dealt with Ms Jackson, Kathy Jackson.

PN57

Did you make a very detailed statement to her in relation to the difficulties of your union, as a consequence of the Jackson fiasco?‑‑‑No. I wouldn’t say so. We discussed it, but I certainly didn’t make a very detailed statement. I talked to her quite broadly about those issues.

PN58

Yes. But you did make a statement to her?‑‑‑I provided a statement to the Commission.

*** CRAIG FERGUSON MCGREGOR XXN MR VAN DE WIEL

PN59

Yes?‑‑‑And I believe she got a copy of that statement. It’s on their website, and it’s the only statement.

PN60

That’s not the statement that you produced here in Court today?‑‑‑No. That’s right.

PN61

How is it different?‑‑‑This provides a greater level of detail. It’s ‑ ‑ ‑

PN62

It provides a greater level of detail, because your memory improves with time, or why is that?‑‑‑No, I was asked specific questions in conversation.

PN63

Who by? Who asked you specific questions?‑‑‑A member of Fair Work. I don’t remember exactly who that was.

PN64

Was that Mr Enright?‑‑‑Yes. Possibly, yes. Yes, I think that’s probably correct.

PN65

If you could perhaps describe him for us then we can be more certain about who it is you’re speaking of? Is he middle-aged and balding; is that a fair description of Mr Enright? I’m not trying to be offensive to him, but is that a – bit chubby?‑‑‑Did we meet with Mr Enright? Was that Mr Enright we met with?

PN66

THE VICE PRESIDENT: I think you need to answer the questions to the best of your recollection. If you don’t recall ‑ ‑ ‑

PN67

THE WITNESS: No. Look, I met with a member of Fair Work. You know, look, I don’t remember. It was a while ago.

PN68

MR VAN DE WIEL: All right. He introduced himself and you can’t remember his name?‑‑‑That's correct.

PN69

Right. You couldn’t remember the name of the person from the Royal Commission. who spoke with you, either, could you?‑‑‑Any Southwell. Yes.

PN70

Because I suggested the name to you?‑‑‑But, I remember that. Eh?

PN71

I suggested the name to you so you now remember it?‑‑‑I don’t – yes, okay. That’s not correct, I remember Amy’s name.

*** CRAIG FERGUSON MCGREGOR XXN MR VAN DE WIEL

PN72

Do you? Yes. Who was the first person who directed your attention to the issue of rights of entry applications?‑‑‑In which context? In Park Street? In ‑ ‑ ‑

PN73

Yes. In Park Street. That’s why you’re here. I mean, that’s what we’re asking you questions about?‑‑‑Ms Kitching.

PN74

Ms Kitching did?‑‑‑Yes.

PN75

And you didn’t write any of that down, did you?‑‑‑Any of what down?

PN76

Any of the conversation you had with her?‑‑‑No, I didn’t.

PN77

No. Because certainly not all of it was friendly, was it?‑‑‑My relationship with Ms Kitching was friendly. It remains friendly.

PN78

Your relationship with the union that she was a member of was quite unfriendly, wasn’t it, sir?‑‑‑There were some political tensions absolutely. You know, I agree with that.

PN79

Yes. Those political tensions started when would you say, sir?‑‑‑Pretty early on in, I guess, 2013.

PN80

Yes?‑‑‑Yes.

PN81

Your union is the number 3 branch, if I could call it that; is that right?‑‑‑That's correct.

PN82

Right. The union to which Ms Asmar was originally elected was called number 1 branch, at that stage, and now called the HWU; is that right? You’re agreeing with me?‑‑‑Sorry, could you just repeat that?

PN83

The union that Ms Asmar was elected to was, at some stage, called the number 1 branch and is now called HWU; is that right?‑‑‑Yes. Number 1 branch, that's correct.

PN84

Right. As between that union and your union, there was considerable disharmony in relation to a number of issues, wasn’t there?‑‑‑Yes. That's correct.

*** CRAIG FERGUSON MCGREGOR XXN MR VAN DE WIEL

PN85

Yes. Can I suggest this: there was a very significant issue about funding and access to moneys?‑‑‑Yes.

PN86

Yes. Any other issues that you can think of?‑‑‑There was issues with regards to the files that, I believe, was there during the Royal Commission.

PN87

Yes?‑‑‑Yes. There were a number of political issues. Yes.

PN88

Yes?‑‑‑That’s fair to say.

PN89

There was considerable disharmony between your union and the number 1 union because you both shared the same premises, and there were issues about who got the mail and things like that?‑‑‑That's correct.

PN90

There were considerable heated arguments about that?‑‑‑There might have been a couple of heated – I wouldn’t say considerable, but one or two.

PN91

Yes?‑‑‑Yes.

PN92

Ms Kitching certainly was somebody who stood up for her union in terms of indicating to you quite precisely that what they were doing was perfectly proper?‑‑‑Mitch Kitching – Ms Kitching, I should say, was the one person we had good relationships in an ongoing way with branch 1 and acted as a conduit between the two branches, when relationships were quite heated. So my understanding is that my staff had a good relationship with Ms Kitching, and I’ve maintained a good relationship with Ms Kitching.

PN93

Mr Kitching was married to Mr Landeryou, and Mr Landeryou and your spouse, as I understand it, had some legal issues with each other, didn’t they?‑‑‑I believe they did in – many, many years ago.

PN94

Yes. You’re not one to carry a grudge, right?‑‑‑I’m certainly not.

*** CRAIG FERGUSON MCGREGOR XXN MR VAN DE WIEL

PN95

No. I see. Did you employ Mr Leszcynski, if I pronounce his name correctly. You’ll forgive me if I don’t?‑‑‑Mr Leszcynski was employed by Jim Simmonds, the assistance administer, who worked for branch 1 and branch 3, and I believe that happened in September 2012. Something around that point in time. And there was a transitional service agreement that basically suggested he did 75 percent of his work for branch 1 and 25 for branch 3. So that was the employment arrangement.

PN96

Yes. About 6 March of 2013 he was dismissed from branch number 1, or HWU. I’ll call it HWU. You know what I’m talking about?‑‑‑Yes.

PN97

He was, wasn’t he?‑‑‑Around that time, yes, I believe he was.

PN98

Yes. Did he discuss with you, sir, political machinations that were happening within HWU?‑‑‑We talked about HWU. We talked about branch 3. I mean, we were working with Alex on some industrial issues, and we had discussions about, you know, the way the two branches were operating. Yes. I don’t know about the political machinations. I don’t think he’d be privy to that. I can’t speak for him.

PN99

Did Mr Leszcynski suggest to you that Ms Kitching was somebody who was a considerable power within HWU?‑‑‑Look, I think that was widely understood that Ms Kitching played a reasonably important role in the operations of HWU.

PN100

Yes. Did he suggest to you, sir, that Ms Kitching was performing some role in terms of applications for the members of HWU, in terms of their rights of entry?‑‑‑I don’t believe so. Not to my memory.

PN101

You were quite friendly with Mr Leszcynski?‑‑‑We had our issues. We certainly – that was a tense time, and we’d certainly had some run-ins, but, you know, we were working with him, certainly.

PN102

Sorry, you were working with him within your own branch, is what I’m talking about?‑‑‑Yes. Yes.

PN103

I’m not talking about when he was still employed by HWU?‑‑‑Well, we were working with him until, I guess, June, from a distance, because we were sharing offices, and he was working from home for us, and so we weren’t having a great deal to do with one another at that point in time. He was working for us and weeks at a time would go past without us communicating; would provide the industrial information we required and that was the relationship.

PN104

When you first turned your mind to this issue of any conversations with Ms Kitching about rights of entry, who specifically directed you to do that? Which person?‑‑‑Could you please repeat the question?

*** CRAIG FERGUSON MCGREGOR XXN MR VAN DE WIEL

PN105

Yes. Which person specifically directed your mind to the issue of any conversations with Ms Kitching, in relation to rights of entry tests?‑‑‑Look, the only person, from branch 1, that I had any conversations about right of entry with was Ms Kitching.

PN106

Yes. But you say they weren’t conversations of any significance; isn’t that right?‑‑‑That's correct.

PN107

Yes. Now, what I’m asking you is after you had left the premises of Park Street that you were sharing with HWU, who first directed your attention to any conversations at all about Ms Kitching and rights of entry?‑‑‑Amy Southwell.

PN108

Yes. What did she say?‑‑‑I can’t remember the details of the conversation.
She ‑ ‑ ‑

PN109

Did she read to you some material that she had in relation to a statement from other people?‑‑‑No.

PN110

Did she suggest to you that Ms Kitching was doing some rights of entry tests for other people?‑‑‑No.

PN111

Your original inquiries, in relation to the Royal Commission, related to issues to do with Ms Jackson; isn’t that right? Not Ms Kitching?‑‑‑Please repeat that?

PN112

The original inquiries from Ms Southwell, or whoever else from the Royal Commission, related to dealings between Ms Jackson and your union; isn’t that right?‑‑‑Predominantly.

PN113

Yes. So how does this topic of Ms Kitching ever get raised?‑‑‑Yes. Through conversations with Ms Southwell.

PN114

Yes?‑‑‑Yes.

PN115

That’s more proximate to any alleged conversations you’ve had with Ms Kitching. What conversation did you have with Ms Southwell about that? How did the topic start?‑‑‑You’re pushing my memory on that question. We ‑ ‑ ‑

PN116

That’s why I’m asking you the question?‑‑‑Yes.

*** CRAIG FERGUSON MCGREGOR XXN MR VAN DE WIEL

PN117

MR MATTHEWS: Well, he should be allowed to finish that answer, with respect.

PN118

THE WITNESS: Ms Southwell and I had a broad conversation about largely matters to do with Ms Jackson. But there were issues around the branch 1/branch 3 sharing arrangements and the files, because I believe the files that were brought into question and, as I’ve said before, the documents are there on the Royal Commission website pertaining to those documents, were relevant, and so we were talking about the relationship between 1 and 3 as it pertains to those documents, and the server. And, so, there’s that link from the Jackson matter to the branch 1 issues.

PN119

MR VAN DE WIEL: What questions did she ask you?‑‑‑I don’t recall the details of the questions. I mean ‑ ‑ ‑

PN120

What matters did she suggest to you to bring this to your mind?‑‑‑Like I say, it was a broad based conversation. I – look, I can’t recall whether I raised it or she raised it, to be honest.

PN121

Well, why would you raise it?‑‑‑Well, because we were talking about the relationships between branch 1 and 3.

PN122

What you told Ms Southwell, in terms of the statement that you made on 24 November, is:

PN123

I can recall early in 2013 Ms Kitching came in to my office in Park Street.

PN124

?‑‑‑Yes.

PN125

We don’t have a date for that, do we?‑‑‑No.

PN126

We have no idea whether it’s January, February, March, April?‑‑‑I believe it was February or March. Around that – late February/March, I think.

PN127

You believe now, some years after the event?‑‑‑Yes.

PN128

But you can’t be precise about it?‑‑‑Look, I don’t recall I detail. That's correct.

*** CRAIG FERGUSON MCGREGOR XXN MR VAN DE WIEL

PN129

She comes in to your office, according to this, and said words to the effect of, “Did another one, got 100 percent again.”?‑‑‑That's correct.

PN130

Didn’t say anything about what it is that she got 100 percent for?‑‑‑No, she did not.

PN131

No. Didn’t say in relation to any particular person?‑‑‑She did not.

PN132

No. Now, what you also say is:

PN133

Further, Ms Kitching had previously told me that many of the officials and employees of the number 1 branch did not have rights of entry permits, and needed to apply and sit on the tests online.

PN134

That's right?‑‑‑That's right.

PN135

Yes:

PN136

I don’t recall what I said in response. The interaction was very brief.

PN137

?‑‑‑That's correct.

PN138

Yes. So one utterance that she makes to you is “I got 100 percent again.” It’s you, as a consequence of, what, some suggestion of Ms Southwell, that links that to a right of entry test?‑‑‑The ‑ ‑ ‑

PN139

Is that right, Mr McGregor?‑‑‑Yes. That's correct.

PN140

Yes. Thank you?‑‑‑Yes.

PN141

Because certainly Ms Kitching never said to you that she had ever done any rights of entry tests; isn’t that right?‑‑‑That's correct.

PN142

Never suggested that she’d done it for anyone else?‑‑‑That's correct.

*** CRAIG FERGUSON MCGREGOR XXN MR VAN DE WIEL

PN143

So all you can say is, at some stage, Ms Kitching comes in to your office and said, “I got 100 percent again.”?‑‑‑That's right. No, sorry, take out the “I”. She didn’t refer to herself specifically, so ‑ ‑ ‑

PN144

Right?‑‑‑Yes.

PN145

Yes. Yes, thanks very much, Mr McGregor?‑‑‑Thank you.

PN146

THE VICE PRESIDENT: Mr Matthews?

PN147

MR MATTHEWS: No re-examination, sir.

PN148

THE VICE PRESIDENT: Thank you for your evidence, Mr McGregor. You can step down, and you’re excused from further attendance.

<THE WITNESS WITHDREW [10.29 AM]

PN149

THE VICE PRESIDENT: The next witness organised is Mr Leszcynski.

PN150

MR MATTHEWS: Yes. Can I just say one thing at the outset about Mr Leszcynski, while he’s brought to the room, and that is that there was a statement to this Commission of 6 January 2014, for a start. Then there was a subsequent statement to the Royal Commission that expanded upon aspects of the statement to this Commission, just to backtrack. So 6 January 2014 was the first statement. Again, I can shortly provide you with a copy of that, if that assists, your Honour.

PN151

THE VICE PRESIDENT: I do have both of those statements.

PN152

MR MATTHEWS: Right. We would seek, if suitable to you, to tender both statements.

PN153

THE VICE PRESIDENT: Yes.

PN154

MR MATTHEWS: My client is anxious that the second clarifies aspects of the first.

PN155

THE VICE PRESIDENT: Yes.

PN156

MR MATTHEWS: If that’s convenient. As was done in the other Commission.

PN157

THE VICE PRESIDENT: Thank you. Mr Leszcynski, you can come to the witness box, please.

PN158

MR VAN DE WIEL: Can I just raise this: The Royal Commission is not before you. We were very much hamstrung by the way in which the Royal Commission was run, in that we had time limits; we were required to submit a list of questions; we were never permitted to finish those; much of the material was provided to us at the last minute; and indeed, particularly in terms of Mr McGovern, we certainly, I think, got about three minutes to cross-examine him. Now, we object to the statements of the Royal Commission coming before you on the basis of evidence, and if it’s sought that they be relied on for the purposes of credit, namely that, “Well, I’ve sworn this before, I’m swearing it again”, that’s quite impermissible.

PN159

And that the other issue, of course, about the Royal Commission, is that there’s a power of compulsion there, so it really is a very different sort of Tribunal to the one that’s before you. With the greatest respect, your Honour is required to make findings in terms of the evidence that are before you, not before anybody else, and I appreciate that you’ve indicated, in your directions, that you will make decisions based on the evidence that are before you. Insofar as people might, as you indicated, for the purposes of saving time, and presumably money, with respect of the parties and the Tribunal, seek to rely on that material, we don’t object to that per se, provided that is quite apparent and transparent that what’s being done is that it is being done merely to put the facts before you, not to rely on what was given in evidence before the Royal Commission.

PN160

THE VICE PRESIDENT: Yes. I understand the nature of evidence here is to put the facts before this Commission.

PN161

MR VAN DE WIEL: Thank you.

PN162

THE VICE PRESIDENT: Yes. Thank you.

PN163

MR VAN DE WIEL: Thank you.

PN164

THE ASSOCIATE: Please state your full name and address.

PN165

MR LESZCYNSKI: Alexander John Leszcynski, (address supplied).

<ALEXANDER JOHN LESZCYNSKI, AFFIRMED [10.33 AM]

<EXAMINATION-IN-CHIEF BY MR MATTHEWS [10.33 AM]

PN166

THE VICE PRESIDENT: Please be seated, Mr Leszcynski. Mr Matthews?

PN167

MR MATTHEWS: Mr Leszcynski, could you repeat your full name, your address, and your current occupation for the Commission, please?‑‑‑Yes. My full name is Alexander John Leszcynski. I live at (address supplied). My current occupation is senior industrial coordinator with the Health Services Union, Victoria, number 3 branch, which trades as the Victorian Health Professionals Association.

PN168

Mr Leszcynski, you made a statement, did you not, of 15 pages dated 6 January 2014, to this Commission, about matters relevant to the current inquiry?‑‑‑I did.

PN169

To this Commission, that’s correct. Do you have a copy of that 15 page statement in front of you?‑‑‑I do.

PN170

Bearing the date 6 January 2014?‑‑‑I do.

PN171

Now, I understand that you wish to make the same correction as you did before the Royal Commission, to paragraph 6 of that statement?‑‑‑I do. So, in paragraph 6, it says, it starts:

PN172

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 HSW Vic number 1 branch past or present.

PN173

That is correct. The next part, it says:

PN174

I had never met any of these people prior to them being appointed to the elected positions they took up after the elections.

PN175

In the case of Ms Leonie Flynn, I actually did meet her after I started at the Health Services Union, Victorian number 1 branch, which would’ve been approximately two months prior to the election result being declared. The other person who was elected at those elections, who I had met, was Mr Rob McGovern, who was a delegate, who I had been assisting in a matter, as a member of the branch.

*** ALEXANDER JOHN LESZCYNSKI XN MR MATTHEWS

PN176

Now, with those corrections to paragraph 6, are the contents of that statement true and correct?‑‑‑They are.

PN177

Is there anything further you’d seek to add or alter in that statement?‑‑‑Whether it’s in this statement or the other statement that I gave to the Royal Commission, as I again indicated at the Royal Commission, while I am not currently a member of any political party, I was previously, in Western Australia, a member of the Greens. Since I’ve been in Victoria I have not been a member of any political party.

PN178

All right. Okay. But, in the Commission, you link that more directly to your second statement I’ll come to shortly. Okay. With those corrections, your Honour, I tender the statement of 6 January 2014.

PN179

MR VAN DE WIEL: Just before we do. We understand that the terms of reference before you, sir, relate to the sole issue of the right of entry. They don’t relate to a whole series of other matters, which were the subject of inquiry by Mr Enright, and, of concern to the Royal Commission in terms of governance, control, finances, all these sorts of matters that are all in his statement. So really, with greatest of respect, should he not be confined, in terms of what’s before you, relate to what it is that he’s saying, in terms of rights of entry applications?

PN180

THE VICE PRESIDENT: Is that something that’s conveniently dealt with in submissions? If matters go beyond the scope of inquiry that can be clarified. The point you make is obviously correct. There’s a narrow scope of inquiry, and insofar as facts are put before the Commission that don’t relate to that, they clearly can’t be relevant. But, in terms of convenience ‑ ‑ ‑

PN181

MR VAN DE WIEL: No. We can deal with it in submissions.

PN182

THE VICE PRESIDENT: Yes. Yes.

PN183

MR VAN DE WIEL: I mean, plainly ‑ ‑ ‑

PN184

THE VICE PRESIDENT: I appreciate you flagging the point. I think it’s probably best dealt with in that way.

PN185

MR VAN DE WIEL: Okay.

*** ALEXANDER JOHN LESZCYNSKI XN MR MATTHEWS

PN186

THE VICE PRESIDENT: Mr Leszcynski, the copy of the statement that I have has eight annexures. Is that also the case with the statement that you have?‑‑‑It is, your Honour.

PN187

Yes.

PN188

MR MATTHEWS: I should tender it with annexures. Noting what my learned friend says about what will be said in due course about which bits are relevant, but perhaps for the sake of convenience and brevity if we could tender the statement with all those annexures, at this point.

PN189

THE VICE PRESIDENT: Yes. Noting that the point Mr van de Weil raised, I’ll mark the statement of Mr Leszcynski dated 6 January 2014, together with the annexures, exhibit 2 in these proceedings.

EXHIBIT #2 STATEMENT OF ALEXANDER JOHN LESZCYNSKI DATED 06/01/2014

PN190

MR MATTHEWS: If your Honour pleases. Then, Mr Leszcynski, you made a subsequent statement, did you not, to the Royal Commission, of four pages, dated 16 September 2014?‑‑‑That is correct.

PN191

You have that document before you as well?‑‑‑I do.

PN192

That’s your signature on the last page of that document?‑‑‑It is.

PN193

I should have asked you, I’m sorry, if I can go back to the previous exhibit, there was a signature on the 15 pages. That also is your signature?‑‑‑It is.

PN194

Yes. All right. Now, going back to the September statement, you’ve indicated previously to his Honour that there was a correction you wanted to make in relation to your membership, at one point, of the Greens?‑‑‑Yes. As ‑ ‑ ‑

PN195

Pardon me. Continue?‑‑‑As I indicated, I’m not currently of a political party. I was, when I was in Western Australia, a member of the Greens. I have not been a member of a political party since I’ve been in Victoria.

PN196

Okay. Now, with that addition, are the contents of the statement, of 16 September 2014, true and correct?‑‑‑They are.

*** ALEXANDER JOHN LESZCYNSKI XN MR MATTHEWS

PN197

There’s nothing else you’d seek to add or alter to that statement?‑‑‑No.

PN198

I tender that statement, your Honour.

PN199

THE VICE PRESIDENT: I’ll mark that statement exhibit 3 in these proceedings.

EXHIBIT #3 STATEMENT OF ALEXANDER JOHN LESZCYNSKI DATED 16/09/2014

PN200

MR MATTHEWS: I have nothing further for Mr Leszcynski.

PN201

THE VICE PRESIDENT: Mr Van de Wiel?

<CROSS-EXAMINATION BY MR VAN DE WIEL [10.40 AM]

PN202

MR VAN DE WIEL: You are a trained lawyer; is that right?‑‑‑I don’t have a practicing certificate. I did complete a law degree at MacQuarie University but I don’t have a practicing certificate.

PN203

At the Royal Commission you were represented by Mr Bornstein, weren’t you?‑‑‑I was.

PN204

Before you gave evidence at the Royal Commission, you had the opportunity certainly to discuss your proposed evidence with Mr Bornstein?‑‑‑Yes.

PN205

Yes. He was fully aware of your position, in terms of the factual matters that you were putting before the Royal Commission?‑‑‑Yes.

PN206

Yes. You’d had the opportunity, not only to discuss it, but also, no doubt, to deal with the fact that you were at the Royal Commission as a consequence of compulsion, and that you were making the statement in accordance with your summons to the Royal Commission?‑‑‑Yes.

PN207

Yes. So we can take it, then, can we, that Mr Bornstein, when he asked you questions, as he did at the Royal Commission, did so in accordance with discussions that you had had with him; yes?‑‑‑We hadn’t discussed those specific questions beforehand. No.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN208

I’m not suggesting that you would, like a parrot, work out what it is he would say and then what you would say, but certainly the topics were matters that had been discussed between you?‑‑‑My broad evidence, yes, had been discussed with Mr Bornstein.

PN209

Right. Do you remember being in the witness box at the Royal Commission, sir?‑‑‑I do.

PN210

Yes. When you were asked questions by Mr Bornstein, I take it you answered truthfully?‑‑‑I did.

PN211

Yes. You heard the exchange between Mr Bornstein and the Commissioner?‑‑‑I would have. I can’t recall that conversation at the moment.

PN212

But you, by nature, sir – I don’t mean to be offensive to you, but you are very concerned about your position, and the fact that you’re not being taken advantage of by anybody; isn’t that right?‑‑‑In what regards? I’m – can you please repeat the question. I’m not too sure what you’re asking.

PN213

When you were in the witness box, you were quite concerned about the fact that you would be accepted accurately in terms of what it is that you were saying?‑‑‑Yes.

PN214

Yes. I want to take you to an exchange between you and Mr Bornstein at the Royal Commission on 19 September of 2014. You had been taken to an issue, do you remember, in relation to annexure 7, which was part of the documents that have been tendered before his Honour today?‑‑‑I’ve got annexure 7. I don’t have a transcript of what transpired between myself and Mr Bornstein with me.

PN215

I appreciate you don’t. I’ll rectify that in a few moments. But do you remember I had asked you questions about annexure 7?‑‑‑Yes.

PN216

And what was contained therein, and I made a specific suggestion that what’s contained therein is no less a threat of blackmail as between you and Ms Kitching?‑‑‑I remember you made that allegation. I denied that allegation at the time.

PN217

I appreciate you did?‑‑‑And I deny it again.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN218

Yes. I appreciate you did. Prior to making any statements to either Mr Enright for the Fair Work body, or to Ms Southwell, or anyone else, you’d had a discussion with Mr McGregor about your termination, hadn’t you? Mr Craig McGregor, the witness who was here a few moments ago?‑‑‑I have discussed that with Mr McGregor on a number of occasions. Is there a specific timeframe you’re talking about?

PN219

Yes?‑‑‑And what timeframe is that?

PN220

What do you mean what timeframe is that?‑‑‑Well, I’ve obviously discussed my termination with Mr McGregor on a number of occasions since March 2013.

PN221

Yes. He told you, did he not, that Ms Kitching had suggested that you had been violent and that you had attempted to destroy property at the HSU number 1 or HWU premises; isn’t that right?‑‑‑My recollection of my conversation with Mr McGregor was that he ‑ ‑ ‑

PN222

Please answer my question?

PN223

MR MATTHEWS: That’s exactly what he’s trying to do, with respect. That’s not appropriate.

PN224

THE VICE PRESIDENT: I think the witness should be permitted to give a full answer.

PN225

MR VAN DE WIEL: If your Honour pleases.

PN226

THE WITNESS: My recollection of my conversation with Mr McGregor was he had indicated that Ms Kitching had indicated that I had been violent, and that I was punching walls and doors.

PN227

MR VAN DE WIEL: Right. Okay. Did you, sir, as a consequence of being told that, then suggest to him that Ms Kitching was doing right of entry tests for people?‑‑‑I don’t believe I indicated that to Mr McGregor, at that time, no.

PN228

Well, when you say “at that time”, we don’t know what time you’re talking about. When did you suggest to Mr McGregor that Ms Kitching was doing right of entry tests?‑‑‑I can’t recall, though I suppose I would point out – I do need to correct you, when you said was doing right of entry tests. My evidence has been that – is in relation to Ms Kitching doing Ms Asmar’s right of entry test.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN229

What did you say to Mr McGregor about that?‑‑‑What I’ve indicated in my statement.

PN230

Don’t worry about your statement. Just tell us what you told him?‑‑‑I would’ve told Mr McGregor essentially what I had put in my statement.

PN231

Well, just tell us what you told him?‑‑‑I’m about to, if you let me finish, I would have got on to that, please. What I indicated was that Ms Kitching had come in to my office, asked me some right of entry questions, I had given responses to those. She’d come, ask further questions. She asked a couple of questions, at which point, I asked Ms Kitching, why she was asking me those questions, and, as per my evidence previously, she’d indicated to me that she was doing Ms Asmar right of entry test, because Ms Asmar didn’t have the time to do it.

PN232

What day was this conversation?‑‑‑The conversation with Ms Kitching or with Ms ‑ ‑ ‑

PN233

With Ms Kitching. When was this conversation with Ms Kitching?‑‑‑I can’t remember the specific date. It was in late January.

PN234

Why do you remember late January as opposed to early February, or March? What’s the significance of those days?‑‑‑It was before – it was prior to the Australia Day weekend because, on the Australia Day weekend, I travelled up to a town, which I can’t recall, in North Victoria, to meet some members to discuss an issue there. So it was prior to Australia Day.

PN235

A town you can’t remember, and in relation to members that you can’t remember; is that it?‑‑‑Yes. I can’t remember the member’s names.

PN236

No?‑‑‑When you – sorry, and just to clarify, when you’re dealing with thousands of members, it’s difficult to remember all their names.

PN237

Yes. But you can’t even remember the town? No?‑‑‑No. I was born and grew up in New South Wales, so, for me, I have very limited knowledge of Victorian geography.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN238

In terms of these conversations you had with Ms Kitching, you say, what’s the difference, in terms of time, between the first time you spoke to Ms Kitching, and the second time you spoke to Ms Kitching? Are we talking – certainly we’re not talking minutes, are we?‑‑‑Look, it would’ve been five to 10 minutes. It wouldn’t have been an hour or so. No. It was a relatively short period of time.

PN239

Could be half an hour?‑‑‑Without having looked at my watch, I can’t say. It definitely wouldn’t have been half an hour though I don’t believe it would’ve been that big a gap.

PN240

There’s really no reason why you’d remember this, is there?‑‑‑There’s no reason why I would remember what?

PN241

This particular exchange between yourself and Ms Kitching?‑‑‑There would be a reason, and that’s because essentially she was indicating she was doing the right of entry test for someone else.

PN242

Is that right?‑‑‑Which is not what is supposed to occur under the Fair Work Act.

PN243

Mr Bornstein, going back to him, asked you this question:

PN244

During the period in which you were employed with this branch were you aware of any notion that the right of entry test of the organisers had been completed by somebody other than the organisers?

PN245

Do you remember him asking you that question?‑‑‑I can remember that question. Yes.

PN246

Yes. The Commissioner says to him:

PN247

Is this re-examination?

PN248

Mr Bornstein: Sorry, Commissioner?

PN249

The Commissioner: Is this appropriate re-examination? I mean, it isn’t covered in the witness’ statements.

PN250

Mr Bornstein: ‑ ‑ ‑

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN251

MR MATTHEWS: No. That’s not quite right. It’s “Isn’t this covered in the witness’ statements?”, is what’s said.

PN252

MR VAN DE WIEL: Yes. Sorry:

PN253

Isn’t this covered in the witness’ statements?

PN254

Do you remember that exchange?‑‑‑Vaguely, yes.

PN255

Yes. Mr Bornstein says this:

PN256

The witness, in his statements, refers to becoming aware of Ms Kitching talking about Ms Asmar’s test, and a suggestion has been made by my friend that he has general malice, and I’m seeking to address that, Commissioner.

PN257

Do you remember that exchange between Mr Bornstein and the Commissioner?‑‑‑Again, vaguely. Yes.

PN258

Yes. And then you answer the question?‑‑‑Yes.

PN259

What you say is – and I’ll provide you a copy, and also you, your Honour, with a copy. You can look at it for yourself. It’s 1055.10 or 11. You are the witness:

PN260

Look, I believe the first I heard about there being allegations that Kitching or anyone else had done tests for other organisers, I believe, was actually the day before I was terminated.

PN261

So that wasn’t until late?

PN262

Yeah.

PN263

It would’ve been, what, 6 March?

PN264

To be honest I don’t recall who indicated it to me. It may well have been Leonie Flynn. I’m not too sure, but I myself had never heard Ms Asmar or Ms Kitching say that they had done right of entry tests for anyone else.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN265

Your evidence?‑‑‑Yes. That’s my evidence.

PN266

And it was true?‑‑‑It’s true. I suppose, yes.

PN267

Yes. That is the position. You had never heard, you had never heard from Ms Kitching or Ms Asmar that they had done rights of entry tests for anyone else?‑‑‑Other than Ms Kitching indicating ‑ ‑ ‑

PN268

No, no, not other than. This is the answer that you swore in response to questions from Mr Bornstein before the Royal Commission; isn’t that right?‑‑‑It is. And that’s because the answer was in relation to the other organisers, not in relation to Ms Kitching indicating she had done the test for Ms Asmar.

PN269

That’s not the question you were asked by Mr Bornstein, and the context of the question certainly was not in accordance with what you say now, is it?‑‑‑The issue was – I was questioned ‑ ‑ ‑

PN270

Is the answer to my question yes?‑‑‑The issue that was asked was in relation to the other organisers. My evidence, when I said that, I myself, I never heard Ms Asmar or Ms Kitching say they had done the right of entry test for anyone else, I was referring to the other organisers not to ‑ ‑ ‑

PN271

Where, Mr Leszcynski ‑ ‑ ‑

PN272

MR MATTHEWS: He should finish that answer, with respect, your Honour. Not to?

PN273

THE WITNESS: Yes. And that’s what my evidence was, it was in relation to Ms Asmar or Ms Kitching saying they had done the right of entry tests for the organisers, not in relation to Ms Kitching saying she had done the right of entry test for Ms Asmar.

PN274

MR VAN DE WIEL: The question that Mr Bornstein asks you, and please go back to it:

PN275

The witness, in his statements, refers to becoming aware of Ms Kitching talking about Ms Asmar’s test.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN276

Specifically directing your mind to that issue?‑‑‑But if you actually go back to the page previously, the question, which – prior to that, was:

PN277

During the period in which you were employed with this branch, were you aware of any other notion that the right of entry test of the organisers had been completed by someone other than the organisers?

PN278

So my evidence was in relation to those organisers, which it ‑ ‑ ‑

PN279

Right. You weren’t answering Mr Bornstein’s questions. You were just making some kind of speech, were you?‑‑‑No. I was answering Mr Bornstein’s question.

PN280

Well, Mr Bornstein’s question was certainly raising with you and the Commissioner ‑ ‑ ‑

PN281

THE VICE PRESIDENT: I think, in fairness to the witness, you should refer to the transcript of the question accurately.

PN282

MR VAN DE WIEL: I will.

PN283

THE VICE PRESIDENT: Which is the question you say was the one asked?

PN284

MR VAN DE WIEL: The question that was asked by Mr Bornstein, to which the witness responded, is made plain by Mr Bornstein, at, we say, 1055.3.

PN285

THE VICE PRESIDENT: What’s 1055.3?

PN286

MR MATTHEWS: He should put the whole question, with respect, your Honour.

PN287

THE VICE PRESIDENT: On page 1055.

PN288

MR VAN DE WIEL: Well, I can go back to 1054.38.

PN289

THE VICE PRESIDENT: That’s where it says Q.

PN290

MR VAN DE WIEL: That’s where the question starts.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN291

THE VICE PRESIDENT: Yes.

PN292

MR VAN DE WIEL: Then Mr Bornstein refines the question, in relation to the response from the Commissioner, with respect.

PN293

THE VICE PRESIDENT: Isn’t, Mr Bornstein, there answering a question from the Commissioner?

PN294

MR VAN DE WIEL: He is. But he’s also making it very plain to both the witness and the Commission the topic that he is concerned about.

PN295

THE VICE PRESIDENT: So you say the question that is being asked commenced at line 38 of the previous page?

PN296

MR VAN DE WIEL: 1054. Yes. Is continued ‑ ‑ ‑

PN297

THE VICE PRESIDENT: Includes what is said by Mr Bornstein, from lines 3 onwards on the following page?

PN298

MR VAN DE WIEL: Correct.

PN299

THE VICE PRESIDENT: So what’s your question to the witness?

PN300

MR VAN DE WIEL: My question to the witness is merely to confirm that he did give that evidence, and that it was truthful. He’s already done that.

PN301

MR MATTHEWS: No, he hasn’t, with respect. He’s made clear what he was saying when he answered that question.

PN302

MR VAN DE WIEL: You’re not suggesting there’s any error in the transcript, are you?‑‑‑My answer was correct, but my answer was in relation to the question on 1054.38 which it is actually listed as a question. Whereas, Mr Bornstein, on 1055.3, was a statement he was making to the Commissioner, which is why, I assume, he ended it with “Commissioner”.

PN303

The question that Mr Bornstein asked you, at 1054, sir, is:

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN304

During the period in which you were employed with this branch, were you aware of any notion that the right of entry test of the organisers had been completed by someone other than the organisers?

PN305

That right?‑‑‑That's right.

PN306

Yes. Which would have included Ms Asmar?‑‑‑Ms Asmar was not an organiser.

PN307

For the purposes of the right of entry, she’s an organiser, isn’t she, sir?‑‑‑No. She’s an elected official of the union. She is not an organiser.

PN308

I see. So you say the answer that you make there should exclude any conversation with Ms Kitching in relation to Ms Asmar; is that right?‑‑‑Yes. Yes.

PN309

Yes?‑‑‑Because I was answering the question in relation to the organisers, of which Ms Asmar was not an organiser.

PN310

All right. Let’s just have a look at that question. The answer that you gave further. In the middle of the answer.

PN311

So that wasn’t until late?

PN312

Yes.

PN313

It would have been, what, 6 March?

PN314

To be honest, I can’t recall who indicated that to me. It might’ve been Leonie Flynn. I’m not sure.

PN315

So, you’re certainly directing your attention to the fact that somebody has told you, or suggested to you, on or about 6 March, that Ms Kitching was doing some tests; is that right?‑‑‑Ms Kitching was doing some tests for other people, yes.

PN316

Who told you that?‑‑‑As I indicate there, I can’t recall. It may have been Leonie Flynn. I cannot recall.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN317

What was the substance of the allegation?‑‑‑I have to go back and think. I mean, my recollection, given this is now two years ago, isn’t the greatest on this specific issue, particularly at that time, given I was very tired and stressed. I think the substance of it was that Ms Kitching had done, as per Mr Bornstein’s question, had been doing right of entry tests for other organisers.

PN318

You think it might have been Peggy Lee who told you this?‑‑‑It is possible. As I said at the Royal Commission, I can’t remember who indicated it to me. So it may have been Ms Peggy Lee.

PN319

See, the position when you ceased to work with HWU or HSU number 1, I don’t care what you call it, you were terminated as a result of a fairly offensive email that you’d written in relation to Mr Sheriff; isn’t that right?‑‑‑It was an intemperate email. Yes, I admit that.

PN320

Yes. Ms Kitching told you that your services were terminated, and you took that quite badly, didn’t you?‑‑‑Yes. I was very angry.

PN321

Yes. Because, as far as you were concerned, you’d been working very hard for that union, and you were a person who had knowledge and skill in relation to matters of industrial law, and there were people employed there who didn’t have your level of skill; isn’t that right?‑‑‑Yes. I would say that’s a fairly accurate statement.

PN322

Yes. Then what you do, sir, is that you do become threatening and violent within the building; isn’t that right, sir?‑‑‑No.

PN323

You know that Ms Kitching called the police?‑‑‑I’m aware that that’s what Ms Kitching said. I wasn’t there at the time the police was called, so I can’t say that I was aware that happened.

PN324

You then, sir, send the email, which we have as exhibit 7; isn’t that right?‑‑‑Annexure 7. Yes.

PN325

Annexure 7. Now, you and I have already traversed this at the Royal Commission?‑‑‑Is that a question?

PN326

I’m just – want his Honour to know that we’ve already had exchanges in relation to this. Do you have annexure 7 in front of you, now?‑‑‑I do.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN327

Okay.

PN328

I offered to you this evening, I am prepared to forego raising my concerns with the way things have occurred over the last three months if we can come to some form of arrangement.

PN329

Demand by you for money, sir?‑‑‑No. If you look at the rest ‑ ‑ ‑

PN330

A demand for some form of favour?

PN331

MR MATTHEWS: Excuse me. He should finish that answer, with respect, your Honour.

PN332

MR VAN DE WIEL: I thought he had finished the answer.

PN333

MR MATTHEWS: No, he hadn’t.

PN334

MR VAN DE WIEL: All right?‑‑‑No. As the rest of the sentence, which you didn’t read, said:

PN335

that will ensure the interests of the members are looked after.

PN336

My concern was the interests of the members.

PN337

Yes. So what is the arrangement that you want, Mr Leszcynski, from Ms Kitching? What is the arrangement?‑‑‑As I indicated at the Royal Commission, when I wrote this, I was still quite angry. I was very tired, very stressed, you know, physically and mentally exhausted. The way I wrote this email if I had my time again, first of all, I wouldn’t write the email, but I wouldn’t – If I was raising the issue with trying to come to some sort of arrangement, I would not write it in that way. When I say “some sort of arrangement”, I wanted to ensure that the knowledge I had of members’ cases, because I had been there longer than anyone else, I think, with the exception of Peggy Lee, who had just come back from leave, I wanted to ensure that, as a result of me being terminated, the members who I had been dealing with and the knowledge that I had of those cases, essentially didn’t slip through the cracks.

PN338

I am prepared to forego raising my concerns with the way things have occurred in the last three months.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN339

THE VICE PRESIDENT: Where are you reading from?

PN340

MR VAN DE WIEL: The same paragraph:

PN341

As I offered to you this evening –

PN342

The final paragraph.

PN343

THE VICE PRESIDENT: Yes. I see it now.

PN344

MR VAN DE WIEL: “I am prepared to forego raising my concerns if we can come to some form of arrangement.” That’s the substance of what you’re saying there in the final paragraph, isn’t it, sir?‑‑‑As the rest of the sentence says:

PN345

that will ensure the interests of the members are looked after.

PN346

The members’ interests are my concern, as I again indicated, at the Royal Commission, when I have left other union jobs I have made myself available to ensure that members did not lose out as a result of me leaving. Curtin University’s enterprise agreement, after I finished working for the National Tertiary Education Union, I continued to do hours of work on that agreement without being paid for it.

PN347

But you didn’t suggest that you were going to forego anything in relation to those people, did you?

PN348

forego raising my concerns.

PN349

?‑‑‑I didn’t have concerns that needed to be raised around the way things were being dealt with there. And, as I indicated previously, given my state of mind, that paragraph is not worded the best.

PN350

It isn’t, sir, that you wanted to somehow punish Ms Kitching for your termination, was it?‑‑‑Again, my concern was for the members. If my intention was to punish Ms Kitching why would I have made that offer?

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN351

Can I ask you this: you’re a man who is very concerned about proprietaries, aren’t you?‑‑‑Generally. Yes.

PN352

If you thought, in January, that Ms Kitching was doing the test for Ms Asmar, you would think that that was highly inappropriate, wouldn’t you?‑‑‑Yes.

PN353

Yes. You would certainly raise that matter with BCOM, couldn’t you?‑‑‑I could have, although I was never invited to BCOM.

PN354

Yes. You did not?‑‑‑No.

PN355

You didn’t write to them?‑‑‑No. Because I didn’t have any evidence that she had completed the test.

PN356

You certainly had access to people who were, within the union, people who were political opponents of Ms Asmar, to whom you could make the complaint that you believed that Ms Kitching was doing the tests for Ms Asmar, couldn’t you?‑‑‑I could have raised it with people. Yes.

PN357

But you did not?‑‑‑No. Because I had – because I did not – while she’d indicated she was doing it, I did not know that she had actually completed the test.

PN358

But, what happens is you certainly raised with – or Mr McGregor raises with you, the fact that there’s an allegation by Ms Kitching that you’d been violent, and that you had destroyed property; isn’t that right?‑‑‑Yes. Mr McGregor did raise that with me.

PN359

Yes. Did you raise with him the suggestion that Ms Kitching had done tests for Ms Asmar?‑‑‑I would have. When I raised that with him, I cannot recall.

PN360

When did you raise it?‑‑‑As I just indicated, I cannot recall.

PN361

It’s a fabrication, isn’t it, sir?‑‑‑No, it’s not a fabrication.

*** ALEXANDER JOHN LESZCYNSKI XXN MR VAN DE WIEL

PN362

I suggest that the evidence that you gave in answer to the question from Mr Bornstein is perfectly correct; that you cannot recall anything about anybody doing tests for anyone at the union until such time as you heard the allegation being made to you, on 6 March, the day of your termination?‑‑‑As I indicated previously, my answer to Mr Bornstein was in relation to the organisers, because that’s what Mr Bornstein’s question was in relation to. As I previously indicated in, not just here, but obviously in the Royal Commission, my evidence is that Ms Kitching indicated to me she was doing Ms Asmar’s right of entry test.

PN363

Not exactly bosom buddies, you and Ms Kitching, were you?‑‑‑Not when she terminated me. No. Up until ‑ ‑ ‑

PN364

Well, not even before that?‑‑‑Up until that point we had a very good working relationship.

PN365

Yes. All right. Thank you. Yes.

PN366

THE VICE PRESIDENT: Mr Matthews?

PN367

MR MATTHEWS: No re-examination, your Honour.

PN368

THE VICE PRESIDENT: Thank you for your evidence, Mr Leszcynski. You can step down and you’re excused from further attendance?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [11.10 AM]

PN369

MR MATTHEWS: I wonder if I and my instructor might also be excused, your Honour?

PN370

THE VICE PRESIDENT: Yes, indeed you may, Mr Matthews. Thank you. The next witness organised for 11 am is Ms Govan. I’ll have my Associate check whether she’s outside and ready to give evidence, now.

PN371

MR VAN DE WIEL: Can I raise, in relation to Ms Govan, and witnesses of her ilk, this matter, and before she comes into Court. Is she here?

PN372

THE VICE PRESIDENT: Before she comes in to Court?

PN373

MR VAN DE WIEL: Yes, please.

PN374

THE VICE PRESIDENT: Yes. My Associate will ask her not to come in just yet.

PN375

MR VAN DE WIEL: Thank you, sir. I don’t know if you’d had the opportunity to read her statement, in general terms.

PN376

THE VICE PRESIDENT: Yes, to some extent, but not thoroughly.

PN377

MR VAN DE WIEL: In general terms she says this: she says, “I didn’t do my right of entry test. Someone else did it for me. I swore that I did it. I put in the application to that effect.” Now, it would seem, on the face of it, that she has certainly made that statement to Mr Enright, in the course of investigations. I see no evidence, in terms of her statement, of any suggestion that she has been cautioned about her rights against self-incrimination.

PN378

THE VICE PRESIDENT: No.

PN379

MR VAN DE WIEL: And potential prosecution. She gave evidence before the Royal Commission. That evidence is protected within the law which relates to Royal Commissions, and, namely, that it cannot be used for the purposes of any prosecution. It would seem, in our submission, to your Honour that it be appropriate for you to caution this witness, before she gives evidence in relation to that matter, that she has the rights to refuse to give answer to any questions in respect of it, or give evidence in relation to her own activities which could be said to be criminal. Because the evidence before you, with the greatest of respect, is not protected. You are not in a position, as it provided under section 128 of the Evidence Act, to give her a certificate which would mean that that evidence could not be used directly for the purposes of prosecution, so whatever she gives in evidence here certainly could be the basis of any prosecution.

PN380

THE VICE PRESIDENT: Is the form of that warning reflected conveniently in any legislation or test or case?

PN381

MR VAN DE WIEL: Certainly in terms of both the Crimes Act, section – I think it’s section 24, or 464 of the Victorian Crimes Act. I don’t have them to hand, your Honour, but essentially it goes this way: you don’t have to answer any questions in relation to this matter, but if you do, such evidence as you may give could be used for the purposes of prosecution of you in some other place.

PN382

THE VICE PRESIDENT: No obligation to answer questions which may incriminate you in relation to potential breaches of the criminal law.

PN383

MR VAN DE WIEL: “You” meaning the witness. Yes. That's right.

PN384

THE VICE PRESIDENT: But obligations otherwise to answer questions. Yes.

PN385

MR VAN DE WIEL: That's right. Correct.

PN386

THE VICE PRESIDENT: Yes.

PN387

MR VAN DE WIEL: It’s a common occurrence in criminal matters when witnesses are asked about other criminal activity, that the judicial officer would indicate to the witness they’re not obliged to answer and often asked if they want to get legal advice about it. But that’s even in the position where they can be offered a certificate pursuant to section 128 of the Evidence Act.

PN388

THE VICE PRESIDENT: Yes.

PN389

MR VAN DE WIEL: That similarly applies to Mr McGovern and it particularly applies to Ms Lee. Have you got a copy of the statement of Ms Lee, because I think it’s appropriate if we raise these matters with you globally rather than seriatim.

PN390

THE VICE PRESIDENT: So, 5 September 2014?

PN391

MR VAN DE WIEL: You’ll forgive me, I too have many papers and I’d better dig out her statement. Is that the one in paragraph 4 where she reiterates what she’s been told:

PN392

I make this statement on the understanding that nothing I say in this can be used in any proceedings against me.

PN393

I don’t know who told her this, and on what basis. Presumably this is a statement, even though – is that the one you have, sir? Does it start off, paragraph 1:

PN394

My name is Peggy Lee.

PN395

And on the last page of that first page:

PN396

I had made a statement.

PN397

The last words.

PN398

THE VICE PRESIDENT: Bear with me a moment, if you will. That’s the statement to the Royal Commission, is it?

PN399

MR VAN DE WIEL: I don’t know that it’s the – no, it’s not the same statement. It’s the statement to Mr Enright, as I understand it. The statement dated, sir,
the ‑ ‑ ‑

PN400

THE VICE PRESIDENT: I have one that’s not dated.

PN401

MR VAN DE WIEL: Yes. I think that’s probably ‑ ‑ ‑

PN402

THE VICE PRESIDENT: In paragraph 4 it has the statement that I think you just read.

PN403

MR VAN DE WIEL: “I make this statement understanding that nothing that I can say in it can be used in any proceedings against me. I also understand, however, that there would be very serious implications for me if I was to include something in the statement I knew to be false or I did not know to be true. I understand I do not have to make this statement, but I am aware that if Fair Work Commission was to have exercised compulsory powers under this Act to require information from me, then it would’ve resulted in the same outcome.” First question that we ask is: on what basis can she be told that nothing can be used against her? Secondly, which compulsory powers are being used in order for that statement?

PN404

THE VICE PRESIDENT: Okay. So, in terms of a warning about self-incrimination, you say that Ms Lee should be given the same warning as you say should be given to Ms Govan.

PN405

MR VAN DE WIEL: That's right.

PN406

THE VICE PRESIDENT: So Ms Govan, Ms Lee and Mr McGovern?

PN407

MR VAN DE WIEL: Correct. They should be given the caution that they don’t have to answer any questions in relation to rights of entry; in Ms Lee’s case, doing rights of entry tests; in Ms Govan’s case, either not doing tests, or alternatively indicating that they swore falsely that they did do tests, and make application to the Fair Work Commission in relation to it. Because it’s asserted boldly in their statement, “I did not do the tests”, and it’s also produced in evidence their declarations that, in fact, they did.

PN408

THE VICE PRESIDENT: The statement of Ms Govan is dated 16 September 2013?

PN409

MR VAN DE WIEL: 16 September 2013. Correct.

PN410

THE VICE PRESIDENT: Yes.

PN411

MR VAN DE WIEL: Six page statement. Yes.

PN412

THE VICE PRESIDENT: Yes. Very well. Well, I think it is appropriate that I give that caution.

PN413

MR VAN DE WIEL: Thank you.

PN414

THE VICE PRESIDENT: We’ll bring Ms Govan in to the courtroom.

PN415

THE ASSOCIATE: Could you please state your full name and address?

PN416

MS GOVAN: Can I withhold my address, please?

PN417

THE VICE PRESIDENT: Yes, you needn’t give your home address.

PN418

MS GOVAN: Okay. It’s Jayne Claire Govan, 4 Shirley Street, Altona Meadows.

<JAYNE CLAIRE GOVAN, AFFIRMED [11.21 AM]

<EXAMINATION-IN-CHIEF [11.21 AM]

PN419

THE VICE PRESIDENT: Please be seated, Ms Govan. Ms Govan, can I raise something with you at the outset. There is a privilege in the law against self-incrimination, and it’s appropriate where there’s a possibility of evidence being given that might incriminate a witness to provide a caution that you are not required to answer any questions or give evidence that might incriminate you in relation to criminal offences?‑‑‑Mm-hm.

PN420

So if there is any questions, in relation to those matters, you are not required to answer such questions?‑‑‑Thank you.

*** JAYNE CLAIRE GOVAN XN

PN421

I wish to make that clear to you. Ms Govan ‑ ‑ ‑

PN422

MR VAN DE WIEL: Can I say, in relation to that, your Honour, that if she was to adopt her statement, that would certainly defeat the caution.

PN423

THE VICE PRESIDENT: Yes. Ms Govan, you made a statement, which I think was provided initially to Mr Enright in relation to the right of entry matters at the Health Services Union?‑‑‑Yes. That's correct.

PN424

I see you don’t have any papers with you. You obviously don’t have a copy of the statement with you?‑‑‑No, I don’t have it with me. No.

PN425

No. Can I provide you with this statement?‑‑‑Thank you.

PN426

Now, that is a statement which, I think, has six pages?‑‑‑Yes. That's correct.

PN427

It has certain attachments?‑‑‑Yes.

PN428

Is that the statement that you made to Mr Enright?‑‑‑Yes. Except for I’m not understanding why the letter to Mr Martorana is actually attached, in regards to his membership.

PN429

That’s not one of the attachments? We’ll take that back from you. So, now I don’t have a copy of the statement in front of me, do you refer to an attachment C in your statement?‑‑‑No. Because that’s in regards to a Jamie Martorana’s membership, in regards to an election inquiry. It’s nothing to do with the right of entry.

PN430

I see. So it’s not relevant to this matter?‑‑‑No.

PN431

Okay. Now, bearing in mind the caution that I provided to you earlier, is the statement that you have in front of you, true and correct?‑‑‑Yes, it is.

PN432

Yes. Thank you. Mr van de Wiel?

<CROSS-EXAMINATION BY MR VAN DE WIEL [11.25 AM]

*** JAYNE CLAIRE GOVAN XXN MR VAN DE WIEL

PN433

MR VAN DE WIEL: Your employment with HWU started when?‑‑‑January 2013.

PN434

Do you remember what day it was?‑‑‑It was the 29th.

PN435

29 January?‑‑‑Yes.

PN436

Yes. And it was terminated when?‑‑‑12 July.

PN437

As a consequence of that termination, did you begin wrongful dismissal proceedings in relation to the union?‑‑‑Yes, I did.

PN438

Yes. What was the basis of that claim, madam?‑‑‑It was under the general protections.

PN439

Well, it might have been under the general protection, but what were the allegations that you were making?‑‑‑Political and sexual discrimination.

PN440

Yes. By whom?‑‑‑Ms Asmar.

PN441

Yes. What was the nature of the allegation, in terms of political discrimination?‑‑‑That I wasn’t a member of the labour party.

PN442

Sorry. That you were? You’re speaking a bit softly?‑‑‑I was not – I’m sorry.

PN443

That’s all right?‑‑‑I said because I was not a member of the labour party.

PN444

Yes. The other reason?‑‑‑Because Ms Asmar alleged and told other people that I was bisexual when I’m not, and stated that that was the reason for my termination.

PN445

Yes. Could you tell us what the source of the information was that you sought to rely on, in terms of your claim?‑‑‑Sorry, I don’t see what this has got to do with right of entry permits.

PN446

Well, just bear with me for a moment.

*** JAYNE CLAIRE GOVAN XXN MR VAN DE WIEL

PN447

THE VICE PRESIDENT: Right. In this matter, Ms Govan, there is a broad ability to cross-examine you generally in relation to your evidence and your credit, and the matters that you are being asked questions about, I think, do fall within permissible bounds, that’s so far. If there are further questions that go further, then I’ll certainly consider that question?‑‑‑Okay.

PN448

You’re free to raise concerns in the future if you believe that it might?‑‑‑I do have concerns in the fact that the decision of that case has been made, but there is also a course of appeal that might be happening, so.

PN449

Well, I’m going to allow the questions?‑‑‑Yes.

PN450

You should answer the questions unless I rule to the contrary.

PN451

MR VAN DE WIEL: What was the source of the information which formed the basis of your allegation?‑‑‑It was a conversation that Mr Rob McGovern had with me prior to my termination, and also ‑ ‑ ‑

PN452

A conversation that Mr McGovern had with you?‑‑‑Well, he’d had conversations with Ms Asmar, and then he told me about – asked me if I was actually bisexual. And also just the behaviour in the workplace, which I sought medical help in regards to that.

PN453

See if we can make this a little bit more certain. Did Mr McGovern have some conversation with you after you were terminated?‑‑‑Before I was terminated.

PN454

When did he have this conversation with you?‑‑‑Probably early June/mid June.

PN455

Early in June?‑‑‑Mm-hm. Mid June.

PN456

THE VICE PRESIDENT: That’s 2013?‑‑‑2013. That's correct.

PN457

MR VAN DE WIEL: Yes. Well, what did Mr McGovern say to you?‑‑‑That Diana was concerned about my political affiliations.

PN458

Yes?‑‑‑And that they weren’t in line with the ALP.

*** JAYNE CLAIRE GOVAN XXN MR VAN DE WIEL

PN459

Yes?‑‑‑Also that she was concerned about Miss Dee McIntosh, because she was in a vulnerable position because she’d just separated from her husband, and she was concerned that I was going to enter a bisexual relationship with Dee McIntosh.

PN460

I see. And this is coming from Mr McGovern, is it?‑‑‑That's correct.

PN461

Yes. It had already been made plain to you, by that stage, hadn’t it, that your performance at the union was totally inadequate?‑‑‑No. That’s not correct.

PN462

That you had been cautioned?‑‑‑No.

PN463

On a number of occasions; that you were not responding to issues; correct?‑‑‑No.

PN464

No? That you were not appropriately dealing with your duties, in terms of the rights of members?‑‑‑No.

PN465

And that you were not attending the workplace of members in accordance with your duties?‑‑‑Incorrect.

PN466

Incorrect. You were dismissed on 12 July?‑‑‑Yes.

PN467

You were given a letter by Ms Asmar; isn’t that right?‑‑‑Yes. That's correct.

PN468

Yes.

PN469

THE VICE PRESIDENT: I think, Ms Govan, if you could wait till the questions are completed. I know that they have a number of elements to them, but if you could wait, it will be easier to follow, I think?‑‑‑Yes, your Honour.

PN470

MR VAN DE WIEL: That was 12 July; is that right?‑‑‑Yes.

PN471

Yes. And Mr McGovern had left the employ of the union, the HWU on the – what day did he leave?‑‑‑10 July.

PN472

10 July; is that right? He was certainly very upset, was he not, about the organisation that had previously employed him?‑‑‑Yes, he was upset whilst he was employed there, too.

*** JAYNE CLAIRE GOVAN XXN MR VAN DE WIEL

PN473

Yes. Mr McGovern had more than a little bit of a drinking problem, didn’t he, madam?‑‑‑No.

PN474

No?‑‑‑No.

PN475

Was he taking a considerable amount of medication?‑‑‑I don’t know what medications Mr McGovern takes.

PN476

I’m not asking what medications he was taking. I’m saying a considerable amount of medication. He was, wasn’t he?‑‑‑Not as far as I’m aware. No.

PN477

He’d been involved in a fairly serious accident; isn’t that right?‑‑‑Yes.

PN478

Many years ago. He was still under treatment and medication for that accident; is that right?‑‑‑I don’t know Mr McGovern’s medical history or treatment, I’m sorry.

PN479

But you were pretty good friends with Mr McGovern, weren’t you?‑‑‑I’m still good friends with Mr McGovern.

PN480

Yes. You would go to his home?‑‑‑Yes.

PN481

Yes. You would drink with him?‑‑‑Yes.

PN482

Yes?‑‑‑Social drinks.

PN483

Well, I’m not suggesting that he forced liquor on to you. You and he consumed alcohol together?‑‑‑Yes.

PN484

Yes. And you and he were very close friends when you were working together at the HSU?‑‑‑Yes.

PN485

Yes. And were you good friends with Ms Flynn?‑‑‑I wouldn’t say good friends. No.

PN486

Ms Flynn comes to Mr McGovern’s house on 6 August of 2013, doesn’t she?‑‑‑Yes.

*** JAYNE CLAIRE GOVAN XXN MR VAN DE WIEL

PN487

Yes. You are there?‑‑‑Yes.

PN488

Were you there prior to Ms Flynn’s arrival?‑‑‑No.

PN489

Why is it that you went to Mr McGovern’s house?‑‑‑If I recall, I answered these questions at the Royal Commission, in regards to our meeting at Mr McGovern’s house, with Ms Flynn.

PN490

I’m sorry, firstly I didn’t hear what you said, and secondly I don’t see how it’s an answer to my question. Would you mind answering my question, please?‑‑‑What was the question again? I was under the understanding that I didn’t have to answer questions that I’d already answered in the Royal Commission, which that question ‑ ‑ ‑

PN491

Who told you that? Who told you that?‑‑‑Mr Enright.

PN492

Did he?‑‑‑Yes.

PN493

When did he do that?‑‑‑Because it’s already cross-examination of what I’ve already been cross-examined on.

PN494

What did Mr Enright tell you about giving evidence here before his Honour?‑‑‑That I won’t be asked the same questions that I have at the Royal Commission.

PN495

THE VICE PRESIDENT: I’ve indicated that cross-examination will not repeat matters, but there will be an opportunity to supplement the cross-examination that was given at the Royal Commission. Perhaps that ruling that I’ve indicated is relevant to those questions.

PN496

MR VAN DE WIEL: Did Mr Enright tell you that you had the right not to give evidence because you might incriminate yourself?‑‑‑No.

PN497

Never?‑‑‑No.

PN498

The first time you’ve heard that is today?‑‑‑Yes.

*** JAYNE CLAIRE GOVAN XXN MR VAN DE WIEL

PN499

What do you understand by that caution?‑‑‑That my evidence my incriminate myself. I’m not actually really sure of it.

PN500

Not sure of what? What is it that you don’t understand?‑‑‑Well, I don’t see what evidence I can give today that will incriminate myself criminally.

PN501

Has no-one ever spoken to you about that?‑‑‑No.

PN502

You see, in fairness to you, you’ve sworn, and I’m not going to ask you to answer this, it’s suggested that you have sworn declarations which are untrue, which would make you guilty of some form of statutory perjury. You understand that?‑‑‑Yes. I understand that part of it. Yes.

PN503

Right. You realise you don’t have to answer any questions in relation to that if you don’t want to because that could incriminate you, and you could be prosecuted. Do you understand that now?‑‑‑Yes. I do understand that. Thank you.

PN504

Right. Now, that’s what his Honour was explaining to you before?‑‑‑Okay.

PN505

Now, are you prepared to answer my questions, or do you wish not to answer my questions?‑‑‑I wish to have legal representation.

PN506

When?‑‑‑In regards to this hearing.

PN507

I truthfully can’t say that that’s an unfair request.

PN508

THE VICE PRESIDENT: Well, I think it depends on the question, does it not?

PN509

MR VAN DE WIEL: Well, I certainly intend to ask questions about the fact that – perhaps the witness might step outside for a moment.

PN510

THE VICE PRESIDENT: Yes. Ms Govan, if you could just step outside for a moment.

<THE WITNESS WITHDREW [11.38 AM]

PN511

MR VAN DE WIEL: I certainly intend to ask questions about the fact that she has sworn falsely, in terms of submitting documents for a right of entry, and that she says that she did not do the tests. Now, of necessity, that will raise the issue which would provide the basis for prosecution. I mean, unfortunately it’s totally interwoven with what’s happened, in terms of what she says is the history of these proceedings.

PN512

THE VICE PRESIDENT: Yes.

PN513

MR VAN DE WIEL: Now, I can’t say that it would be unfair of her to get legal representation, and I think it probably a good idea that she does it now rather than in the middle of her evidence, because otherwise we’re going to end up in a difficult position.

PN514

THE VICE PRESIDENT: Yes. Well, might it be appropriate that we ‑ ‑ ‑

PN515

MR VAN DE WIEL: I understand Mr Addison acted for her at the wrongful dismissal action and I think he also acted for her at the Royal Commission, as Mr Addison did for Mr McGovern. It may well be that all they need is a quick phone call and they can ‑ ‑ ‑

PN516

THE VICE PRESIDENT: Yes. Well, I think it would be appropriate to adjourn Ms Govan’s evidence, and give her an opportunity to get advice in relation to the matters that have been raised with her today. We might call Ms Govan in and inform her of that.

PN517

MR VAN DE WIEL: I don’t seek to trespass on your province, but we could go on with Ms Flynn. She doesn’t need any cautions.

PN518

THE VICE PRESIDENT: Yes. Then we’ll go to Ms Flynn. Yes.

<JAYNE CLAIRE GOVAN, RECALLED [11.41 AM]

<FURTHER EXAMINATION-IN-CHIEF [11.41 AM]

PN519

THE VICE PRESIDENT: Ms Govan?‑‑‑Yes.

PN520

I understand, from the answers you’ve given in the witness box today, that you have not previously been aware of the matters that I’ve raised with you, and Mr van de Wiel raised with you about the privilege against self-incrimination and the implications of that?‑‑‑Yes.

*** JAYNE CLAIRE GOVAN FXN

PN521

If you wish to obtain advice in relation to those matters, then I think it would be appropriate to adjourn your cross-examine to enable you to do so?‑‑‑Thank you. I’d appreciate that.

PN522

So, if you’re confirming that that’s what you would like to do, I’ll ask you to step down. I’ll adjourn your cross-examination and I’ll ask you to notify my Associate when you are ready to resume your cross-examination?‑‑‑I will. I’ll do that as soon as possible.

PN523

Yes. Thank you?‑‑‑Thank you.

PN524

You can step down, now?‑‑‑Thanks.

<THE WITNESS WITHDREW [11.42 AM]

PN525

THE VICE PRESIDENT: We’ll call Ms Flynn. Mr van de Wiel, is it appropriate that I mark the transcript before the Royal Commission, the two pages that you cross-examined Mr Leszcynski about?

PN526

MR VAN DE WIEL: There’s no contradictor, so I suppose ‑ ‑ ‑

PN527

THE VICE PRESIDENT: Yes. You’re – yes.

PN528

MR VAN DE WIEL: I’ve tendered them to the witness.

PN529

THE VICE PRESIDENT: Yes.

PN530

MR VAN DE WIEL: If I was called upon to tender them I would not be able to resist, so your request is one that meets an open door.

PN531

THE VICE PRESIDENT: Yes. I think I should mark it as an exhibit. It’s those two pages. I’ll mark it exhibit 4 in these proceedings.

EXHIBIT #4 RELEVANT PAGES OF TRANSCRIPT OF PROCEEDINGS OF ROYAL COMMISSION HEARING

PN532

MR VAN DE WIEL: Thank you.

PN533

THE ASSOCIATE: Could you please state your full name and address.

PN534

MS FLYNN: My name is Leonie Elizabeth Flynn, (address supplied).

<LEONIE ELIZABETH FLYNN, SWORN [11.44 AM]

<EXAMINATION-IN-CHIEF [11.44 AM]

PN535

THE VICE PRESIDENT: Thank you, Ms Flynn. Please be seated. Ms Flynn, you made a statement to the Fair Work Commission in September 2013?‑‑‑That's correct.

PN536

Do you have a copy of that with you?‑‑‑No, not on me, no. I’m sorry.

PN537

No. Okay?‑‑‑I’m quite familiar with my statement.

PN538

I’m sorry?‑‑‑I’m quite familiar with my statement.

PN539

Well, I’m going to show it to you?‑‑‑Okay.

PN540

I think there’s also a supplementary statement dated 11 August 2014?‑‑‑Yes.

PN541

I think both of those statements had attachments to them. I’m going to show them to you. Once I can be sure that I have all the correct attachments – let me show you this bundle initially?‑‑‑Thank you.

PN542

The document I’ve just handed to you, I think there’s a 2013 date on the last page of it. Not the last page of the attachments, but the last page of the statement?‑‑‑Yes.

PN543

What’s the date on that statement?‑‑‑4 September 2013.

PN544

How many numbered paragraphs in that statement?‑‑‑Two hundred and nineteen paragraphs.

PN545

Are you familiar with that? Is that the first statement that you’ve made?‑‑‑Yes. That's correct. Initially I put in, which I guess I now call it a draft, on 31 July, but I made some amendments over the next four or five weeks, and completed the statement on 4 September.

*** LEONIE ELIZABETH FLYNN XN

PN546

Right. Are there any amendments or modifications you wish to make to that statement?‑‑‑I believe that there was one. I’m positive I brought it to the attention of Mr Chris Enright. It was in relation to staff that were employed, and – sorry, I’ll just try and find it. I believe it was in relation to Lachlan Enshaw. Here we are.

PN547

MR VAN DE WIEL: It’s not a matter that concerns us, your Honour.

PN548

THE WITNESS: But I would like to correct it. I have, in paragraph 138, it says:

PN549

Lachlan Enshaw was employed by Diana Asmar as an organiser without advertisement at about the same time as Hibba Salim.

PN550

Then I have:

PN551

Lachlan was previously a counsellor at the city of Moorland.

PN552

I wish to retract that part of it, because I don’t believe that that’s true.

PN553

THE VICE PRESIDENT: Okay. Were there any other amendments or modifications you believe you should make to that statement?‑‑‑I don’t believe so. But there may – I couldn’t tell you where, but there may be an issue with one date, but if it is actually brought to my attention I would then be able to correct it.

PN554

Yes. Is the statement, to the best of your knowledge and belief, true and correct?‑‑‑Yes. Yes.

PN555

Does it have attached to it the attachments that are referred to in the statement?‑‑‑Yes. I believe so.

PN556

Yes, very well. Thank you?‑‑‑Okay.

PN557

I’ll mark that exhibit 5 in these proceedings.

EXHIBIT #5 STATEMENT OF LEONIE ELIZABETH FLYNN DATED 04/09/2013

*** LEONIE ELIZABETH FLYNN XN

PN558

Can I next show you a document which is headed Supplementary Witness Statement Leonie Flynn, and it’s dated 11 August 2014?‑‑‑Thank you.

PN559

Are you familiar with that document?‑‑‑Yes. Yes, I am.

PN560

Are there any modifications or amendments you wish to make to that statement?‑‑‑I don’t believe so.

PN561

Is that statement, to the best of your knowledge and belief, true and correct?‑‑‑Yes, it is.

PN562

Yes. I’ll admit that statement into evidence and mark it exhibit 6 in these proceedings.

EXHIBIT #6 SUPPLEMENTARY STATEMENT OF LEONIE ELIZABETH FLYNN DATED 11/08/2014

PN563

Does that statement have a number of further attachments?‑‑‑Yes. It has got further attachments connected, yes. Yes.

PN564

Are the attachments there, the attachments referred to in the statement?‑‑‑Yes, I believe so.

PN565

Yes. Thank you. Mr van de Wiel will now have some questions for you?‑‑‑Thank you.

PN566

Mr van de Wiel?

PN567

MR VAN DE WIEL: Before he does, I see Mr Enright is in Court. He’s potentially a witness. I’d ask that he leave.

PN568

THE VICE PRESIDENT: Yes. Do you require Mr Enright for cross-examination?

PN569

MR VAN DE WIEL: I think what’s noted is that Mr Enright may, I think in your schedule, if it’s your schedule?

PN570

THE VICE PRESIDENT: Yes.

*** LEONIE ELIZABETH FLYNN XN

PN571

MR VAN DE WIEL: It’s indicated that Mr Enright may, if required.

PN572

THE VICE PRESIDENT: Yes.

PN573

MR VAN DE WIEL: Accordingly, I’d ask that he be asked to leave.

PN574

THE VICE PRESIDENT: Yes. Mr Enright, could you leave the courtroom as you may be required to give evidence subsequently.

PN575

MR ENRIGHT: Thank you, your Honour.

PN576

THE VICE PRESIDENT: Thank you.

PN577

MR VAN DE WIEL: I apologise to Mr Enright, in terms of his description, because I described him as chubby. I see that he, in fact, is now quite svelte.

PN578

THE VICE PRESIDENT: Yes, it’s appropriate to make that comment on the record, because he’s likely to read the transcript.

PN579

MR VAN DE WIEL: If he is, I apologise to him.

<CROSS-EXAMINATION BY MR VAN DE WIEL [11.52 AM]

PN580

Now, Ms Flynn, you were an elected official for HSU number 1, and you were elected in December of 2012; yes?‑‑‑That's correct.

PN581

Yes?‑‑‑And please excuse me, can you just speak up, because I find it difficult?

PN582

Yes. No, that’s okay?‑‑‑Thank you.

PN583

If you tell me to speak up I’ll try and remember, and if you try to do the same, and if you can get yourself more comfortable with the microphone so you don’t - - -?‑‑‑Is that better? Is it switched on?

PN584

I don’t think the microphone actually amplifies your voice.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN585

THE VICE PRESIDENT: No, it doesn’t amplify your voice, Ms Flynn.

PN586

MR VAN DE WIEL: I think all it does is record it?‑‑‑Is that better?

PN587

No.

PN588

THE VICE PRESIDENT: It doesn’t amplify your voice. It’s simply for the ‑ ‑ ‑

PN589

MR VAN DE WIEL: The microphone is for the purposes of recording, it’s not for the purposes of amplification?‑‑‑I’m sorry. Sorry.

PN590

No, that’s all right?‑‑‑Okay.

PN591

No. That’s all right. So we get the ground rules right then we can save time.

PN592

THE VICE PRESIDENT: The microphone is quite directional, so if you can give your answers directly to the microphone that will assist in the transcript?‑‑‑Okay. I’ll pop it back.

PN593

MR VAN DE WIEL: Okay. If you answer facing his Honour then you’ll obviously do the same?‑‑‑Certainly.

PN594

Okay. Now, this is the position, isn’t it: you were elected to HSU number 1 branch, and your elected position is that you are the assistant secretary; correct?‑‑‑I was.

PN595

Yes?‑‑‑Yes, sorry.

PN596

I’m talking about 2012/2013?‑‑‑Correct. Yes.

PN597

That’s your position?‑‑‑Yes.

PN598

Right. Now, as such, you had a number of duties to perform?‑‑‑I did.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN599

Right. As it would happen there developed situations of some friction between you and people at the HSU number 1; is that right? We don’t have to go in to detail. There was some friction?‑‑‑Yes. I’d prefer not to elaborate, but, yes, it ended badly.

PN600

Yes. I don’t particularly want to go in to it either. Okay. So, as an elected official, you took your duties quite seriously?‑‑‑I did indeed.

PN601

Right. Can I ask you this, madam: did you attend the various industrial days when you were not either ill or on leave?‑‑‑Yes. I did. I believe when I was organising in Gippsland for a couple of months that I may have missed either the February or March one. I think it was February, but not positive.

PN602

There was an industrial day, let’s see if I can refresh your memory, on 25 February, in South Melbourne?‑‑‑Yes.

PN603

There was another one on 18 March, and you were on annual leave – I’ve got a table here, and you can have a look at it?‑‑‑Yes. That would be terrific.

PN604

So that you’re not being misled, and if I am wrong, please tell me. The table indicates you were on annual leave between 21 March and 4 April; that you had been ill on 18 March. You could have a look through the list for yourself and I think we’ve already done this once before, and I think you agreed that they were accurate?‑‑‑The February one is not there. You did mention February but I can’t see February.

PN605

No, February is not there because you were not ill and you weren’t on leave?‑‑‑Yes. That's correct. I believe I was in Omeo. Yes.

PN606

This is only a table for what we know is when you were not performing your duties as a consequence of leave or illness; you understand?‑‑‑Yes. I understand.

PN607

Right. And do you accept the accuracy of the table?‑‑‑I would have to check more carefully, but looking at it, it looks correct.

PN608

Yes. Okay. Now, can you remember, madam, whether you were, having seen the table, does that refresh your memory? Does it make it plainer to you whether you were there on 25 February?‑‑‑On 25 February I believe I was in Omeo.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN609

Okay. So you didn’t go - - -?‑‑‑Representing members and doing delegates visits as per Diana’s orders to undertake organising duties for a couple of months.

PN610

Okay. Did you go to the industrial day – well, on 18 March you were ill, so you didn’t go on that day either?‑‑‑When you say “that day on”, I obviously wasn’t there on that day, but I don’t know the dates of all of the other industrial days off the top of my head.

PN611

No. What I’m suggesting to you, industrial days, in February, was the 25th?‑‑‑Yes.

PN612

And I’m suggesting to you that the industrial day in South Melbourne in March was 18 March?‑‑‑Yes. Well obviously by the ‑ ‑ ‑

PN613

So plainly on the 18th you weren’t there, and the 25th you can’t remember, but you think you were most probably in Omeo?‑‑‑No, on 18 March, this clearly shows that I was obviously on sick leave.

PN614

That you were ill. Yes?‑‑‑But I thought that I made it quite clear, Mr van de Wiel, that on 25 February, I was in Omeo.

PN615

You can remember that quite clearly?‑‑‑Yes.

PN616

Okay. All right. All right. Well, put the chart aside, it doesn’t help us, and we’re not going to pursue it?‑‑‑Okay.

PN617

THE VICE PRESIDENT: Should that be admitted into evidence, Mr van de Wiel?

PN618

MR VAN DE WIEL: Well, it’s got no probative weight, as far as we’re concerned, but for the purposes of the record if it has to be ‑ ‑ ‑

PN619

THE VICE PRESIDENT: Yes. I think I’ll mark it for the purposes of the record.

PN620

MR VAN DE WIEL: Okay.

PN621

THE VICE PRESIDENT: I’ll mark it exhibit 7.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

EXHIBIT #7 INDUSTRIAL DAY ATTENDANCE RECORD FOR LEONIE ELIZABETH FLYNN

PN622

MR VAN DE WIEL: Thank you. Now, in February and in March of 2013 you were working quite closely – don’t read anything in to that, you were just working together, with a person who we call Peggy Lee?‑‑‑In February and March of 2013? No, not at that stage. No.

PN623

I thought you and she were working on different awards and the aged awards?‑‑‑Yes.

PN624

Were you not doing that together?‑‑‑We did negotiate enterprise bargaining agreements for the aged care sector up to 200 plus, however, I didn’t commence assisting Peggy until, I think it was late May, mid to late May 2013. After I was doing organising duties for a couple of months whilst Ms Asmar was in the process of appointing Tim Rowley to the Gippsland area, and because that’s where I reside, it made sense to her to give me those duties. And following that, assisted with a lot of disciplinary matters and I’d go and represent the difficult cases up until I commenced EBA negotiations for the aged care sector.

PN625

I would seek to take you, if I might, to paragraph 118 of the statement that you made, that we have here, which is dated 4 September 2013?‑‑‑Okay. So the one dated 4 September?

PN626

That’s the one?‑‑‑Yes.

PN627

Number 118, if you go there, please?‑‑‑I’ll just read it.

PN628

Right. Have you read paragraph 118 to yourself?‑‑‑Not quite yet.

PN629

Okay. If you’d do that, please?‑‑‑Yes, sorry, I’ve read it.

PN630

Okay?‑‑‑Yes.

PN631

Who’s the person who you’re talking about? Who is the colleague?‑‑‑Peggy Lee.

PN632

Peggy Lee told you that?‑‑‑Yes.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN633

Okay. Put the statement aside for a moment?‑‑‑Mm.

PN634

What precise words did she use? What did she actually say? Not what the import of it was, not what you understand it to be, but what did she actually say?‑‑‑Well, I can’t recollect the correct words. I mean, it was a long time ago.

PN635

Yes?‑‑‑But she stated – or, sorry, she said words to the effect of, “Kimberley’s been sitting right of entry tests for organisers.”

PN636

Now, Ms Lee does not – does she speak colloquial English, as far as you understand it, or does she have some difficulty because of just her cultural history?‑‑‑I don’t find any language barrier with Peggy, but I guess that’s because I had worked with her intermittently over the previous couple of years when I worked at the union as an organiser.

PN637

Did Ms Lee tell you that she suspected that Ms Kitching was doing that?‑‑‑No, she certainly didn’t use the word “suspect”. She seemed very sure.

PN638

Yes?‑‑‑And was concerned about it.

PN639

Now, this was said to you in February or March; is that right?‑‑‑Yes. In relation to Kimberley it – so, it was, sort of, first mentioned then. A lot wasn’t, sort of, said about it after that until July was when the main conversation really occurred.

PN640

Hang on, there’s nothing in 118 at all about July, is there?‑‑‑Well, it doesn’t mean that 118 is incorrect.

PN641

No. I’m just saying I’m concerned to discover, as best as you can remember, the precise words that Ms Lee used to you in relation to that allegation. That’s what I’m trying to do. She brings it to your attention, and she says what? What does she actually say?‑‑‑Your Honour, I can’t remember the exact words, but it was pretty much just a very brief conversation with Peggy telling me that Kimberley had been sitting right of entry tests for organisers and some officials, or an official.

PN642

And, at that stage, you had already formed the impression, had you not, that Ms Kitching was exceeding her duties as far as her role in the union?‑‑‑In relation to the right of entry tests?

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN643

In relation to all of her duties?‑‑‑Well, I’m not saying all of her duties, but certainly in January, February, March, Mr van de Wiel, I went along with a lot of things that I perhaps, in hindsight, shouldn’t have, however, I was really trying to make it work for the benefit of the membership, so I was trying not to rock the boat.

PN644

Ms Flynn, can you please answer my questions?‑‑‑I thought I did, but ‑ ‑ ‑

PN645

Okay. All right. Ms Lee tells you something to the effect that Ms Kitching is doing something that you regard as illegal or improper?‑‑‑Yes. Well, I didn’t realise illegal, at the time, but I thought improper and inappropriate and just wrong.

PN646

Right. You, as the assistant secretary, and being somebody who was keen to do the job properly, did you raise it with anybody at all?‑‑‑Not at that time.

PN647

No?‑‑‑It was brief at that time. As I said, I tried to make the relationship work for the benefit of the members. I gave up all my prior connections with all union colleagues and people that I worked with, except for two ladies that remained friends, and still are friends to this day.

PN648

Who are they?‑‑‑Because I really wanted ‑ ‑ ‑

PN649

Who are they?‑‑‑ ‑ ‑ ‑ Diana to know that I was willing to work with her.

PN650

Who are these two ladies?‑‑‑Lyn Wilson and Christine Kells.

PN651

Okay. Not interested in – I will not ask you any questions about them?‑‑‑Okay.

PN652

Now, when does Ms Lee tell you this, whatever it is that she tells you about Ms Kitching? When does she tell you that?‑‑‑I’m not sure what you mean. Like ‑ ‑ ‑

PN653

Well, can you give us any dates? Can you say, what you say in your statement, about February or March, do we know whether it was before Labour Day? Was it before some event?‑‑‑All right.

PN654

Is there some event in your family in March or February?‑‑‑All right.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN655

I don’t want to know what it is but is there - - -?‑‑‑No, that’s okay. No, I wouldn’t feel obliged to tell you, but I believe – just in honest recollection, I believe it was before I went on annual leave.

PN656

We know that from the chart?‑‑‑Right. And ‑ ‑ ‑

PN657

That’s 21 March, I think. You’ve got the chart there. You can see for yourself?‑‑‑Yes. Sorry, I’ve popped them over this side.

PN658

Yes. That’s all right. That’s 21 March. We know that?‑‑‑Yes.

PN659

Okay?‑‑‑And I’m trying to think. Peggy went on leave to Hong Kong.

PN660

Yes?‑‑‑So it was after she returned from Hong Kong, and before I left for my annual leave.

PN661

Right?‑‑‑So I think there’s only, like, a small period of about a week between that.

PN662

All right?‑‑‑I think, by memory. I don’t know the exact dates that she took annual leave, but I believe it was ‑ ‑ ‑

PN663

I don’t think there’s going to be any - - -?‑‑‑ ‑ ‑ ‑ between February and March.

PN664

Ms Flynn, I don’t think there’s going to be any controversy that Ms Lee came back from Hong Kong around about 6 March. Okay. So we know that?‑‑‑Okay.

PN665

So you think it’s some time between 6 March and 21 March?‑‑‑Yes. I’d – well – yes, I do believe it would be between those times.

PN666

And knowing that it is improper, nonetheless you do nothing about it?‑‑‑It’s not that I didn’t want to do anything about it, your Honour. The truth of the matter is, is that we were elected from opposing tickets. I was pretty much the lone wolf in the place. So I really tried to work with them and I didn’t want to bring issues up and rock the boat. You know, as I said, I let some things go in the beginning because I wanted it to work.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN667

Ms Flynn, when you considered matters improper you certainly raised them with BCOM or with other members who had also been elected officials, didn’t you?‑‑‑I’m sorry, can you please speak up?

PN668

When you considered matters were going improperly, you certainly raised that with other members of the union, didn’t you?‑‑‑Are you talking not in relation to the right of entries, just certain matters?

PN669

Yes. Not in relation to the rights of entry?‑‑‑Yes. I’m sorry, I was just clarifying. Not early in the piece, no. Later in the piece, when I did become more assertive, and realised that things just weren’t being conducted in what I would say – the HSU rules and the Corporations Act.

PN670

All right?‑‑‑Yes. I did become a lot more assertive and probably speak my mind.

PN671

In accordance with your elected position, you thought it was totally proper that if something untoward had occurred or was occurring, that you should raise it so that it can be properly investigated; is that right?‑‑‑Yes.

PN672

Yes?‑‑‑Well, to be really honest though, you will note that there’s emails – well, an email between myself and Lloyd Williams, when he was acting national secretary, when Mr Chris Brown was on leave. I believe it was about 4 April 2013. I had not long returned. It might have even been the day after, but not long returned from my annual leave, and Diana had sent me an email saying whatever I wasn’t doing right and what have you. It’ll be there amongst the annexures, no doubt. I did try to contact Lloyd. I didn’t feel it was right to go to Diana or Kimberley since it was going to be about those – the issues that I had about those people, so I did try to contact Lloyd, and he didn’t want to assist. It’s not that he didn’t want to assist, he didn’t want to get involved because his exact words were that, “Diana is a paranoid person”, and he didn’t want to pretty much cause more strife within the union branches. So I felt like I had nowhere else to go, so then I just kept moseying along and doing the best I could.

PN673

Sorry. There were a number of officials, like, Mr O’Brien, like Mr Morrie. You don’t want me to list all the various elected officials, do you? They were all there, and you certainly had access to them, and you were able to speak with them?‑‑‑Okay. I believe Mr Morrie resigned from the branch committee of management really early in the piece.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN674

He did, but he didn’t - - -?‑‑‑And I’m saying about February or even March perhaps. No, I didn’t raise it with those people. I didn’t raise it with Patrick, sorry, because he was – you’re obviously making – like, he was – come from our elected ticket, so I guess you’re ‑ ‑ ‑

PN675

He’s on your side, isn’t he?‑‑‑Well, no. I believe that Patrick is a good man, and that he’s not on sides. He’s about what’s best for the members.

PN676

Right?‑‑‑That’s who Patrick is and that’s what he stands for.

PN677

So, he was a person who was totally proper for you, if you had heard this complaint, to raise it with, so that it could be properly investigated. He was exactly the sort of person that you would go to?‑‑‑Not that early in the piece because I didn’t want to rock the boat with Diana in February or March.

PN678

All right. In any event, if we go to paragraph 119. If you can pick up your statement again for a moment. You read that?‑‑‑Yes.

PN679

Okay. When were you told that?‑‑‑I haven’t dated that. She told me that she was asked – now ‑ ‑ ‑

PN680

This is still Peggy Lee, isn’t it?‑‑‑Peggy Lee. Yes, that’s correct.

PN681

Yes. Okay. Can you give me a date?‑‑‑I would say that’s between about the 15th – mid to late July. Let’s say between – I don’t know, the 15th to the 20th, or something like that, is when she actually ‑ ‑ ‑

PN682

15 or 20 July?‑‑‑ ‑ ‑ ‑ brought her name in to it.

PN683

But you and she had been working closely together, certainly since May; isn’t that right?‑‑‑From late May. That's correct.

PN684

Right?‑‑‑I used to pick her up and drop her off most days of the week.

PN685

And in terms of you, as her workmate, because you’d certainly regard her as your workmate, wouldn’t you?‑‑‑Well, a work colleague.

PN686

Yes. Yes, she’s a work colleague?‑‑‑But you build friendships.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN687

And you discussed, did you not, what was happening within the branch?‑‑‑That was discussed – we really didn’t discuss those things. Peggy is a very private person, and she knew that I was very stressed, and that I was concerned about things, but she didn’t always necessarily know exactly what I was concerned about. She would just notice that I’d be stressed or side-tracked sometimes.

PN688

And by this - - -?‑‑‑But it was in about – I met with Chris Brown ‑ ‑ ‑

PN689

Don’t worry about Chris Brown for the moment.

PN690

THE VICE PRESIDENT: Mr van de Wiel, I think Ms Flynn should be allowed to answer the question fully.

PN691

MR VAN DE WIEL: I’m sorry.

PN692

THE VICE PRESIDENT: Thank you. I think you are cutting across her to some extent. Ms Flynn, if you can focus on the questions and answer those?‑‑‑Yes.

PN693

And you’ll have a full opportunity to answer them?‑‑‑Okay.

PN694

If there is anything further you wish to say relevant to the questions, I’ll give you an opportunity to say that as well?‑‑‑Okay.

PN695

MR VAN DE WIEL: Now, you say it’s about the month of July that Peggy tells you this. Now, can you give us the precise words that Peggy used?‑‑‑Obviously I cannot give you the precise words that Peggy used, but I recall ‑ ‑ ‑

PN696

Doing the best you can?‑‑‑ ‑ ‑ ‑ Mr van de Wiel, that we actually driving over the Bolte Bridge when the conversation occurred, on our way to the South Melbourne office.

PN697

Yes?‑‑‑And it was – I actually initiated that I was almost at breaking point mid to late July, and I explained to Peggy that I wasn’t sure how much longer I could tolerate or go along with the conduct that was occurring.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN698

Yes?‑‑‑I was very stressed and upset. She provided comfort and just listened mostly. She didn’t ask all the ins and outs of things. But then she said to me, “Leonie” – something like – to words of this effect, “Leonie, I have concerns about the conduct of something at the union as well.” And she went and started speaking about the right of entry permits again.

PN699

Yes?‑‑‑And that’s when she elaborated that Diana had actually asked her personally to complete tests and had applied pressure to her for some time, and I believe that she said Kimberley was also, sort of, on her tail about where are David Eden and Darryn Rowe’s right of entries. Their permit tests needs to be sat and completed, and that’s when she told me that, in the end, she was worried about her security and her job, so she completed those two tests: one from her home, and, I think she said she did the next one the next morning, from the South Melbourne office.

PN700

Madam, in paragraph 119?‑‑‑Hang on. Let me just grab that first, sorry. Yes.

PN701

And you’ve read it, haven’t you?‑‑‑Yes.

PN702

The assertion is made that she is being asked to do tests and she refused?‑‑‑Initially – she said initially that she did say no.

PN703

Yes?‑‑‑That was the initial – but it wasn’t until this time that – she’s a person with integrity. She’s just probably the most truthful person I know that wouldn’t tell a lie, and just said how terrible she felt, and told me about it, and that’s when I explained to her, then, that I was drafting a letter of my concerns, and that I was going to be meeting with Chris Brown again the week after or whatever it was. And that I would have to bring that to his attention.

PN704

Yes?‑‑‑She understood.

PN705

Yes. Now, was it a situation where, as you say, you had commenced the conversation, in terms of basically saying that you found it difficult to keep on working there, and that you had difficulties with Kimberley and Ms Asmar; is that basically the situation we’re talking about?‑‑‑From in the car when I initiated the conversation?

PN706

Yes?‑‑‑I must have been smoking more that morning in the car because she asked me if I minded if she wound the window down, and asked me if I was okay.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN707

But was it words to that effect, that you were generally having a bit of a complaint about Asmar and Kitching?‑‑‑No. It wasn’t like that. It was concerns – a lot to do with myself actually with the general purpose financial report that would need to be signed off on. That was me, as the assistant secretary treasurer’s role, to sign off on that. And, you know, 30 June had come and gone, and I was really worried that when I would have to sign off on it I wouldn’t be able to balance anything or really be able to guarantee to the Fair Work Commission, that what I was signing was true and correct.

PN708

Right. Yes?‑‑‑It was about my head being rolled, you know, if things didn’t add up, and it was about protecting myself, in a way, because I felt like things were being planned, like, on an going basis to try to trick me or trap me in some way.

PN709

You thought Asmar and Kitching were against you?‑‑‑Well, they were.

PN710

Well, whether they were or they weren’t, your feelings were that they were?‑‑‑Well, they were.

PN711

And you raised that with Ms Lee, and, in the course of that, Ms Lee tells you this story?‑‑‑No. That’s incorrect. I’m not saying that I’m just complaining about Diana and Kimberley in that way. It was the entire – it wasn’t – let’s say it wasn’t a bitch session about Kimberley and Diana. It was just everything had just built up to a point that I was almost at breaking point, and I needed to vent to somebody. I felt like I had nobody else. I’d tried Lloyd Williams. I tried Chris Brown on 13 June, whereby he made it very clear that that first meeting was to be off the record. I was happy and I agreed with that. So, I just needed to vent.

PN712

All right. Can I take you to 120, please?‑‑‑120?

PN713

Yes?‑‑‑Sorry, yes.

PN714

Now, have you spoken to Ms – just read it to yourself, and then I’ll ask some questions?‑‑‑Okay. Yes.

PN715

Now, did you ever speak to Ms McIntosh about this?‑‑‑No, I didn’t speak to Ms McIntosh about it. I’ve spoken to her post the first Royal Commission hearing about it.

PN716

She satisfied you that she didn’t do it?‑‑‑Yes. She told me that she didn’t do it.

PN717

Right?‑‑‑But that’s not what Tim Rowley told me to my face. And I’ve known Tim Rowley for 20 years. He’s my next-door neighbour. We share a fence.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN718

Mr Rowley told you, did he, that he had not done the test; is that right?‑‑‑That's correct. He was actually chuckling. And I said – because I was telling him that my test was coming up in the November, and even though I had done it before, and as long as you do the research, you know that you can answer the questions, I said, “Oh, was it easy?” And he goes, “I don’t know.” I said, “What do you mean you don’t know?” And he’s, sort of, chuckling, saying, “Well, I didn’t do mine.” And I said, “Well, who did yours?” He goes, “Dee did mine.” I remember that conversation like it was yesterday.

PN719

Please don’t be offended?‑‑‑No. That’s okay.

PN720

But can I suggest this to you and see what you think about it: do you think maybe Mr Rowley just didn’t want to talk to you about the test, and that’s why he was saying what he did?‑‑‑No, I don’t believe that’s true at all. Tim was obviously very wary speaking to me, because most of the people in the workplace were. You know, nobody really wanted to be seen talking to me, because then they’d be grilled about, “What were you talking to her about? What did she say?” So, you know, Tim was always polite. As I said, we’d known each other for a lot of years. But he was very – he seemed very comfortable when he was telling me that.

PN721

Eventually, on 5 August, there is a meeting called a BCOM meeting at South Melbourne, and things get pretty heated, and you leave, and you feel quite upset and you were generally very angry about what’s happening at HWU; is that right?‑‑‑When you said I leave, I didn’t leave a branch committee of management meeting.

PN722

No. You went to the meeting ‑ ‑ ‑?‑‑‑We did have an order and compliance committee meeting that morning and they were back-to-back.

PN723

Yes?‑‑‑And I did get very upset at that meeting after Diana just berated me and absolutely humiliated me in front of everybody until I was sobbing hysterically, and had to have a break for about 10 minutes.

PN724

Right?‑‑‑But not – I didn’t have a break during the BCOM meeting.

PN725

I’m not suggesting you did?‑‑‑Sorry?

PN726

But you left South Melbourne being very angry and very upset?‑‑‑I don’t know. I don’t recall that.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN727

Okay. Did you know Mr McGovern, at that stage?‑‑‑Yes. I – yes.

PN728

Yes. Was he a friend of yours?‑‑‑No.

PN729

No. Ms Govan, was she a friend of yours?‑‑‑No.

PN730

Did you ring Mr McGovern on 6 August, and did you go to his house?‑‑‑Yes, I did.

PN731

Yes. And when you were at his house, you were plainly still very, very upset, weren’t you?‑‑‑I was anxious, but I wasn’t upset and crying like the previous day. I mean, I was distraught the previous day.

PN732

I’m not suggesting you were anything other than upset? That’s all I’m suggesting to you?‑‑‑Well, it depends how you want to clarify upset. I mean ‑ ‑ ‑

PN733

All right. Well, you weren’t feeling happy? Well, you were quite angry about people who were employed at HWU, like Ms Asmar and Ms Kitching, weren’t you?‑‑‑I was anxious after that meeting.

PN734

Yes?‑‑‑Very upset that it actually occurred, because it was so unprofessional, and absolutely degrading to myself. But that’s not the – are you wanting to know the reason that I went to Mr McGovern’s house? I don’t understand the question, I’m sorry.

PN735

You rang Mr McGovern?‑‑‑Yes.

PN736

And you wanted to speak with Mr McGovern; correct?‑‑‑So it was the 6th, the Tuesday the 6th. Yes, I called Mr McGovern that morning.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN737

Yes?‑‑‑And I asked him if he minded me calling him, and if he didn’t want to speak to me that was fine. And he said, “No, no, that’s all right.” He goes, “What’s wrong? How are you?”, or what have you, and I said, “Well, I, sort of, wanted to ask you the same thing, because I just don’t understand, like, you know, you resigned, Jayne Govan’s dismissed, you are both, like, had very long close friendships with Ms Asmar”, like, and, I guess, more so Jayne having Ms Asmar present at the birth of her son, I mean, you wouldn’t just have anybody in the birthing suite when that sort of thing is occurring. So they must have been very close. I was just - really I wanted to query it, after the day before’s meeting, like, what is going on in this union? How come all of these really close people associated to Diana, who assisted immensely during her campaign, why are they no longer working at the union. I was just trying to put a puzzle together, I guess. And he said he’d like to speak to me, and he asked if I could drive to Sunbury and I said, “Okay”, so I went to his house. I think he called me back and said, “Do you mind if Jayne comes?” I said, “No, I don’t have a problem with that.” So when I got there Jayne was there and her mother had accompanied her. So there was the four of us, and Mr McGovern’s partner, Sandy Porter, was there, and they were also babysitting a young relative.

PN738

I want to read you something, see if you agree with me?‑‑‑Mm.

PN739

On Tuesday, 6 August of 2013 I was off sick. I called Rob McGovern, who had resigned a month or so before. I only got his phone number to find out how he was, and if there was anything that I can do.

PN740

Your words? And is it true?‑‑‑Sorry?

PN741

Two questions: are they your words, and is it true?‑‑‑Well, yes.

PN742

Okay?‑‑‑Yes.

PN743

He asked me to visit him at his place in Sunbury. I agreed. And when I arrived he told me to leave my phone in the car because it was tapped. I said it was in my pocket and he directed me to the bedroom where I left it. He said I was being followed. There was a GPS in my car, and they knew where I was all the time. That actually backed up the text message I had received from another member warning that I should take my phone to the police as it was bugged and my car was also GPS’d.

PN744

?‑‑‑That's correct.

PN745

Jayne Govan was there with Rob.

PN746

Is that right?‑‑‑Yes. Yes.

PN747

He told me that Diana had been trying to get rid of me from the start and that they had conspired to give me all kinds of hard jobs so that I could not win, and this was all because Diana thought I was running my own ticket at the next election and did not want me to meet the members.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN748

?‑‑‑That's correct.

PN749

Yes. Now, you believed them when they told you that your phone was bugged?‑‑‑Yes, I did.

PN750

You believed them when they told you that there was a GPS on your car?‑‑‑Well, obviously there is a GPS on the Holden Captiva that I was driving, at the time, because it comes with the car, with modern cars. But prior to the Holden Captiva I drove a white Rav4 and that’s the car that Mr McGovern said that Mr Dean Sherriff attached the black box to the base of my car, went upstairs to the others, and bragged that he’d got it on there, like, attached it.

PN751

Did you think Mr McGovern might have been having a lend of you, when he said those things to you? That your phone was bugged?‑‑‑I don’t think so at all. He wasn’t laughing. He looked serious, and he seemed very concerned.

PN752

Yes. Okay?‑‑‑Can I just ask, I’ve had these exact same questions at the Royal Commission, like, having a lend of me, and all of that. I thought we were ‑ ‑ ‑

PN753

THE VICE PRESIDENT: Yes. I’ll ask you not to repeat cross-examination that was already dealt with at the Royal Commission.

PN754

MR VAN DE WIEL: I’m going in to this for a very specific reason. Did you tell Govan and McGovern - - -?‑‑‑Govan as in Jayne or ‑ ‑ ‑

PN755

Yes, Jayne Govan and Rob McGovern. Did you tell them what you believed that Peggy Lee had said to you on those previous occasions?‑‑‑I don’t know. I can’t remember. Have I got that in my statement?

PN756

Don’t worry about what’s in your statement?‑‑‑No, I can’t remember off the top of my head right now.

PN757

Can we take it, madam, that when you were at Mr McGovern’s place the topic, certainly one of the topics of conversation, was what was wrong with the union?‑‑‑Yes. I would have voiced many concerns, I guess.

PN758

Yes?‑‑‑One of my concerns, first, was, “How come you guys aren’t working at the union any more? Like, what’s happened?” Like, they were very, very close friends.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN759

Yes. They were very close friends?‑‑‑Something must have happened or be going on, because I was the assistant secretary, and I certainly wasn’t privy to any information on why somebody has resigned or why somebody has been sacked, and you would think, having such a senior role, that I would be made aware of circumstances like that, to be honest.

PN760

And did you tell them, in conversation, words to the effect that you’d been told that Ms Kitching had done rights of entry tests for other people?‑‑‑I’ve got no idea whether I actually spoke about that. We may have spoken about it. We spoke about many things. One of the main things that I wanted to show them as well, was the information that I’d found out about this SMC bank account and whether it was a slush fund or what was it?

PN761

Yes?‑‑‑That was one of the main topics of conversation.

PN762

Well, there’d be no reason why you wouldn’t tell them what Ms Lee had told you, would there?‑‑‑I really don’t know. I don’t recall talking about the right of entries. I’m not saying that I didn’t, I’m not saying that I did. I may have. I was there for a few hours, probably two or three hours. We talked about lots of things, and not everything was union.

PN763

We know you went to see the Fair Work Commission on 4 September of 2013?‑‑‑Yes, that's right. That’s when I signed my statement.

PN764

Right. Prior to going there, had you had any other meetings with McGovern or Ms Govan?‑‑‑Before 4 September?

PN765

Yes?‑‑‑Now, there was one night that Jayne invited me to have wine and cheese at her house, and it may have been two, maybe three weeks later, after I left. I cannot recall the date off the top of my head. But I did go there and we had drinks, but it was just a really light night, but that’s it.

PN766

And, in terms of those meetings, had there been discussions about Ms Kitching or Ms Asmar in relation to rights of entry tests?‑‑‑No. I don’t believe they actually spoke about the right of entry tests. I believe that it was – you know, well, they were upset that they no longer had a job.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN767

Yes?‑‑‑Jayne’s a single mum and got a child to raise, and it was more concerns like that and, you know, “Jayne, you got to”, you know, “You need to get out there and look for work.” I can’t remember the exact conversations we had all night, but I wouldn’t say right of entries were the topical subject.

PN768

Did Ms Govan or Mr McGovern indicate to you that they proposed to be involved in some future election against Ms Asmar?‑‑‑No.

PN769

Not raised with you at all?‑‑‑Sorry?

PN770

That was not raised with you at all?‑‑‑Can you repeat your question, please?

PN771

Did Ms Govan or Mr McGovern indicate to you that either of them proposed to stand in the next elections against Ms Asmar?‑‑‑Yes. There was a conversation around that.

PN772

Yes?‑‑‑Yes.

PN773

Was there a conversation to the effect that they wanted politically to destroy Ms Asmar?‑‑‑I wouldn’t call it about politically destroying. They believed that members weren’t being represented properly, and that the union was just in total dysfunction, and they were talking about perhaps standing in the next election. There was nothing in concrete, to my knowledge; about fixing the union, as every new leadership comes in, bringing it back to the members.

PN774

Yes. And that had certainly been raised with you in August; correct?‑‑‑Yes. It could have been late August.

PN775

Yes?‑‑‑Perhaps. Yes.

PN776

Now, on 4 September you’d been to the Fair Work Commission a number of times, hadn’t you?‑‑‑On 4 September or prior to that?

PN777

By 4 September. Not on the day itself, but prior to 4 September you’d been there a number of times?‑‑‑I initially sent it on July 31.

PN778

Yes?‑‑‑I then wrote to Ms Bernadette O’Neill and asked to retract something to try to protect Peggy, which didn’t matter because they accessed my emails and she lost her job anyway, or she ended up resigning. Then, I think there was probably two, maybe three other occasions prior to September 4, before I completed my letter of concern to Ms O’Neill.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN779

Which email do you say was retrieved, in relation to Ms Lee, which led to her being dismissed?‑‑‑Sorry, I can’t hear you properly.

PN780

Which email do you say was intercepted which led to Ms Lee being dismissed?‑‑‑The original, which you might call now a draft, the original letter of concern that I sent to Ms Bernadette O’Neill on 31 July, whereby I included Peggy’s name, where I said that she had sat two persons’ right of entries, or that she was aware of the right of entries. Anyway, I just wanted to retract her name out of it to protect her. Peggy didn’t tell me until a later date, but she said that Diana called her in, it was either that afternoon or the following afternoon, to ask why Leonie put in a complaint at the Fair Work Commission. My understanding, and my belief is, the only way Ms Asmar and Ms Kitching could know that, is because they had access to my emails, which honestly would not surprise me, because we were all given the same user name – not the user name but password to access our laptops.

PN781

You’re not just saying this out of some form of spite, are you?‑‑‑Sorry?

PN782

You’re not just saying this out of some form of spite, are you?‑‑‑No.

PN783

Okay?‑‑‑I think if you questioned every single organiser that worked there, at the time that I did, unless they were going to commit absolute perjury on the stand, they would all say – I think it was “abcd” and then 1-2-3-4-5-6, and it was everybody’s password. We all had the same password.

PN784

Anyway - - -?‑‑‑Well, I don’t think it’s anyway, I think it’s a good point.

PN785

Let me suggest it’s nonsense, because Peggy Lee was never terminated?‑‑‑No. That’s fine. I did actually change what I said, terminated, and then I said, or she may have resigned. Because I believe she went on sick leave ‑ ‑ ‑

PN786

The only matter that she was - - -?‑‑‑ ‑ ‑ ‑ and then she resigned.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN787

‑ ‑ ‑ asked about was in terms of a roster where she was performing electoral duties in relation to Mr Bolano’s campaign and she answered the questions that were asked of her and then she was told that her explanations were accepted, and she could continue to work, and there were no difficulties?‑‑‑Okay. I also believe that Ms Asmar questioned Peggy because Peggy would have told me just words to this effect: that Diana had questioned her about why Leonie was at the Commission and why Peggy didn’t tell her, and that’s when Diana then ceased me working on the enterprise bargaining agreements, which made it very difficult on Peggy, and a lot of stress on her because then she had, I think, it was Sal Stanley assist Peggy, and he had no experience with enterprise bargaining agreements at all. In fact, when he attended the nurses’ union one day he said, “I don’t know how you remember all these acronyms, like, RN, EEN.” And I’m thinking, God and you’re in the health industry and you don’t know what a registered nurse and endorsed enrolled nurse is. Anyway, that person was negotiating the aged care agreements with Peggy.

PN788

Could you have a look for me, please, at paragraph 123 of your statement of the - - -?‑‑‑Sorry one hundred and?

PN789

Twenty-three, 1-2-3?‑‑‑Yes. Yes, I got that. Thanks. Yes.

PN790

Now, what is typed here is taken directly from your telephone; is that right?‑‑‑That's correct.

PN791

It’s a text message from your telephone?‑‑‑Yes. It’s exactly what was on the phone. Yes.

PN792

Right. So you text to Ms Govan?‑‑‑Mm-hm.

PN793

You asked the question, who did her right and entry, and you suggest, “Was it Kimberley?”?‑‑‑Yes.

PN794

Now, the reason that you make that suggestion, madam, is why?‑‑‑Sorry?

PN795

Why do you make that suggestion?‑‑‑Well, obviously it was discussed at either the wine and cheese night, is my guess, maybe. I don’t know.

PN796

Well, why do you suggest it was Kimberley, rather than anyone else?‑‑‑Sorry?

PN797

Why do you suggest that it was Kimberley rather than anybody else?‑‑‑Because Peggy made it quite clear to me, in July, that – and in the February/March – well, it would’ve been March I think we decided on, didn’t we? All these dates, sorry. That I know that everybody was passing – not everybody, but a lot of organisers were saying that their workloads were heavy and Diana was instructing them to email their passwords, or what have you, to Kimberley so that she could assist.

PN798

Yes. “She could assist”. That’s the words? They’re the words of Ms Lee? Email - - -?‑‑‑No, that’s not the words of Ms Lee.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN799

Well, whose words are they? That she could assist?‑‑‑Just words around the office.

PN800

Well, who gave you those words that you have told us; that she could assist? Who gave you those words?‑‑‑I really don’t know. I couldn’t tell you exactly who that was. I’m sorry, Mr van de Wiel.

PN801

All right. Let’s continue with 123. So that’s the question that you pose to Ms Govan; is that right?‑‑‑Yes.

PN802

All right. And - - -?‑‑‑So obviously Jayne has told me that she didn’t do her right of entry, and that Kimberley did it at some stage.

PN803

When did she tell you that?‑‑‑Pardon?

PN804

When did she tell you that?‑‑‑I thought I just said that perhaps it was probably at the night when I went and had cheese and a couple of glasses of wine at Jayne’s house, which was about three weeks - or late August 2013.

PN805

Okay?‑‑‑Just, you know, that’s a guestimate.

PN806

The response you get is, “She sat mine.”?‑‑‑Yes.

PN807

“Nick’s”. Is that Mr Katsis?‑‑‑Nick Katsis. Yes.

PN808

“Dean”?‑‑‑Dean Sherriff.

PN809

“David Eden”?‑‑‑Yes. That’s what Jayne’s written.

PN810

And you know that that’s a lie, don’t you?‑‑‑Sorry?

PN811

You know that that’s a lie, don’t you?‑‑‑Well, I’m not saying it’s a lie. I didn’t make the statement.

PN812

You know that, according to your evidence, Ms Lee had told you that she had done David Eden’s?‑‑‑Yes. That's correct.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN813

So when you read this, did you question it with Ms Govan?‑‑‑Obviously I didn’t, because this is straight off my phone. I was sitting there with Chris Enright.

PN814

Yes?‑‑‑And we were just compiling the last parts of my statement.

PN815

Yes?‑‑‑And he suggested that I call her, and I said, “I might just text her. It might be easier.” So that’s what we did. I don’t think it’s my job to question her and investigate her on what she says.

PN816

Okay?‑‑‑What Jayne says is what Jayne says.

PN817

Fair enough?‑‑‑Yes.

PN818

Let’s keep going?‑‑‑Yes.

PN819

Not sure about others. Lee, I think.

PN820

?‑‑‑Lee Atkinson.

PN821

And:

PN822

Yes it was Kimberley. I think she did Rob’s too.

PN823

?‑‑‑Mm-hm.

PN824

Well, not questioning her, you then send her the next text message we can see at the bottom of the page:

PN825

Do you know when? What about Diana’s?

PN826

?‑‑‑Yes.

PN827

I’ll get you to turn over the page?‑‑‑Mm-hm.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN828

She would have done Diana’s it was when we started. I’m going home to look for my right of entry.

PN829

?‑‑‑To look on my right of entry. Yes.

PN830

Yes. Now, have you ever had a conversation with Mr Eden, about who had done his right of entry?‑‑‑No.

PN831

Have you had any conversations with Mr Katsis about who did his right of entry?‑‑‑No. Those two people didn’t – or Darryn Rowe, didn’t really generally speak to me or associate with me whatsoever in the workplace, so ‑ ‑ ‑

PN832

Okay. And you never asked Kimberley whether she did, in fact, do these rights of entry for anybody, have you?‑‑‑No.

PN833

No. Have you ever spoken to Ms Asmar about who did the rights of entry?‑‑‑No.

PN834

Thank you.

PN835

THE VICE PRESIDENT: Ms Flynn, is there anything arising from the questions that have been raised with you that you wish to add to your evidence?‑‑‑Do you mind if I just have a look at my notes quickly?

PN836

Yes. I don’t want you to raise anything new, but anything arising from the questions you were asked?‑‑‑Okay. It is to do with the right of entries, if it – if you find it irrelevant just say stop and I won’t go on.

*** LEONIE ELIZABETH FLYNN XXN MR VAN DE WIEL

PN837

Well, it needs to arise from the questions you were asked?‑‑‑Okay. Well, it was to do with the July 31, and perhaps 1 August, when I am certain that either Ms Asmar or Ms Kitching, or somebody that Diana directed, to have access to my work emails, because the right of entry issue was in that email, and Chris Brown didn’t know what was in that particular email, so he couldn’t have alerted Ms Kitching or Ms Asmar to the fact about the exact wording. Because I don’t believe I told Chris Brown that Peggy Lee sat two tests. I just told him that right of entry tests weren’t being sat by organisers, and that word of mouth had it that Kimberley had been sitting tests for organisers. And the reason I believe they accessed my emails is because – that was 31 July – then I didn’t put my final letter of concern in until 4 September, and that would not have been provided to Ms Asmar until, like, a week or two after that, so the only way that Ms Asmar would have known that Peggy’s name was in that email, in relation to the right of entries, is because they had access to my work emails. I’m not sure if that makes sense to you but ‑ ‑ ‑

PN838

Anything further you wish to say arising from the questions you were asked?‑‑‑No, look, I really don’t believe so, at this stage. I think we’ve really gone over it all, to be honest.

PN839

Okay. Thank you for your evidence?‑‑‑Thank you.

PN840

You can step down. You’re excused from further attendance. You can remain in the Court, if you wish?‑‑‑Thank you. I’ll just try to put this back in order for you.

PN841

If you can leave those statements there. I think they’re my copies?‑‑‑Okay. Did you want me to put it back in order?

PN842

Yes. It might help?‑‑‑I’ll do my best. I think I’ve mucked up one page. Sorry.

PN843

Yes. Thank you?‑‑‑Sorry. Thank you.

<THE WITNESS WITHDREW [12.51 PM]

PN844

THE VICE PRESIDENT: Mr van de Wiel, just wondering the best way to proceed with the next witnesses.

PN845

MR VAN DE WIEL: The next witness, I think, is another one who probably should be cautioned. I wonder, in terms of using the luncheon break, whether she should receive a caution, and then she can make what inquiries she wants to over the lunch break, so we don’t break the witnesses yet again.

PN846

THE VICE PRESIDENT: Yes. Well, is it appropriate that I ask Ms Lee and Mr McGovern, who I think are both in that category?

PN847

MR VAN DE WIEL: Yes.

PN848

THE VICE PRESIDENT: Mr McGovern may not be here now. Ms Lee to come in and indicate that caution now before she’s sworn in to the witness box.

PN849

MR VAN DE WIEL: Yes. I think, with respect, that’s totally proper, and an effective use of time.

PN850

THE VICE PRESIDENT: Yes. We’ll ask Ms Lee to come to the Bar table initially. Ms Lee, if you can just come to the Bar table initially. There’s something I wish to raise with you. The law recognises a privilege against self-incrimination in relation to potential breaches of the criminal law. It would seem to me to be appropriate to caution witnesses, who may give evidence that may incriminate them, that they need not answer questions that may fall within that category, that may incriminate them, and that they are aware of their rights, in that regard, prior to giving evidence before this Commission, and the context of your evidence is relevant in that regard. I wanted to raise that with you and point out that issue, and give you a chance to consider that question over the luncheon break before you give evidence after the luncheon break.

PN851

What I propose to do is to have you give the oath or affirmation in the witness box, take you to the statements that you have made in relation to these matters, and ask you whether those statements are true and correct, and the caution about self-incrimination will be relevant, at that point in time. So I simply wanted to flag that with you now, and it is probably a matter that you should give consideration to prior to giving your evidence after the luncheon break.

PN852

MS LEE: Yes. Thank you, your Honour.

PN853

THE VICE PRESIDENT: Very well. Thank you. We’ll adjourn till 2 pm.

LUNCHEON ADJOURNMENT [12.55 PM]

RESUMED [2.02 PM]

PN854

THE VICE PRESIDENT: I believe - - -

PN855

MR VAN DE WIEL: Shall we see how Ms Govan is travelling? I’m pre-empting. I’m sorry, I didn’t mean to do that. We have the same issues as Mr McCubbin.

PN856

THE VICE PRESIDENT: Yes, well, I think Ms Govan has advised my associate that she’s been unable to obtain legal advice within the time available. Mr Addison is not available. I think it’s appropriate in her case that we defer her evidence until 4 May as well. So is there any reason why we can’t move to Mr McCubbin?

PN857

MR VAN DE WIEL: None at all, I just saw Ms Govan there and I thought she’d got advice and see that I saw her smiling. I thought she was ready to go, that’s all.

PN858

THE VICE PRESIDENT: No, it might be other reasons why she’s smiling.

PN859

MR VAN DE WIEL: I think she might have other reasons to smile. I don’t know what they are. I’m not interested.

PN860

THE VICE PRESIDENT: Yes, we’ll advise Ms Govan that we’ll reschedule her evidence for 4 May as well and we’ll call Mr McCubbin and I’ll provide him with the same caution.

PN861

MR VAN DE WIEL: I don’t mean to be offensive at all or disrespectful but I think what your Honour has indicated is you’ll have people sworn to adopt their statement and then give them the caution. I think with the greatest respect they should be sworn, then given the caution and then asked about their statement, because otherwise if they’ve accepted their statement they’ve obviated the need for the caution because they’ve in fact eroded it.

PN862

THE VICE PRESIDENT: Yes, I think the caution should precede - - -

PN863

MR VAN DE WIEL: The statement?

PN864

THE VICE PRESIDENT: The statement, that’s right. Yes. I think with Ms Govern that’s what occurred, in that order.

PN865

MR VAN DE WIEL: I’ll be honest with you - I didn’t pay that much attention but I was concerned when you said what you did to Ms Lee, that we’d got it out of order and that’s the only reason I corrected you now.

PN866

THE VICE PRESIDENT: I don’t think I was addressing order. Thank you for making the point.

PN867

MR VAN DE WIEL: I’ll sit down and shut up.

PN868

THE VICE PRESIDENT: Mr McCubbin, before you go to the witness box, perhaps you can just wait there for a moment and you can take a seat at the bar table. There’s something I wish to raise with you. Matters have been raised this morning that give rise to me wishing to caution you about the evidence that you may give in these proceedings in relation to the privilege against self-incrimination. There is a privilege that the law recognises in relation to potential breaches of the criminal law and the possibility that evidence that you may give in this matter here may be used against you in other proceedings in relation to potential breaches of the criminal law.

PN869

The caution I raise with you and indicate that the privilege would enable you to decline to answer any questions that you believe may incriminate you in relation to potential breaches of the criminal law. I wanted to alert you to that and for you to only give evidence with knowledge of that privilege which exists. I have raised the matter with other witnesses this morning and some of that other evidence has been adjourned to a later date to enable those people to get legal advice. I raise the same matter with you. Are you prepared to give evidence today or - - -

PN870

MR MCCUBBIN: Even though my statement is absolutely correct and true, I would prefer legal advice and legal representation. I was actually told that I didn’t need representation today. But however, after what you’ve just had to say I would like legal representation, please.

PN871

THE VICE PRESIDENT: Yes. Well, I think in relation to the matter that I’ve raised if you wish to get legal advice and provide your evidence on another occasion, I’m inclined to accept that request. That matter relates to you but not the next witnesses that are planned to give evidence but it does apply to you. So I think if we revert to the situation of you leaving the court room and we’ll propose to call the next witness, Ms Porter.

PN872

MR MCCUBBIN: Thank you.

PN873

THE VICE PRESIDENT: Thank you, Ms Porter. If you could remain standing while my associate administers the oath or the affirmation.

<SANDRA PORTER, SWORN [2.09 PM]

<EXAMINATION-IN-CHIEF [2.09 PM]

PN874

THE VICE PRESIDENT: Thank you, Ms Porter. Please be seated. Ms Porter, you’ve made a statement, I think, to the Fair Work Commission that is dated 20 January 2014?‑‑‑Yes.

PN875

Do you have a copy of that with you?‑‑‑I do.

PN876

Are you familiar with that statement?‑‑‑Yes, I am.

PN877

Are there any amendments or changes that you wish to make to that statement?‑‑‑Not at all, no.

*** SANDRA PORTER XN

PN878

Is the statement to the best of your knowledge and belief true and correct?‑‑‑True and correct, yes.

PN879

Yes. I propose to admit that statement into evidence. I’ll mark it exhibit 8 in these proceedings. Mr Van De Wiel will have some questions for you.

PN880

MR VAN DE WIEL: Mr Van De Wiel will not.

PN881

THE VICE PRESIDENT: Mr Champion will.

<CROSS-EXAMINATION BY MR CHAMPION [2.09 PM]

PN882

MR CHAMPION: Ms Porter, my name is Champion and I have some questions for you about your statement?‑‑‑Yes.

PN883

Mr McCubbin is your partner?‑‑‑That’s correct.

PN884

As such, you are loyal to him?‑‑‑Yes.

PN885

This matter has been hanging around for some time; might I put it that way?‑‑‑Yes.

PN886

You would have discussed the matters in your statement with Mr McCubbin on a number of occasions before?‑‑‑Early in the piece; probably not since the last time we were here.

PN887

Not since the royal commission but before that time you did discuss your evidence with him?‑‑‑Well, yes, I suppose we talked about what happened, yes.

PN888

Discussed what’s in your statement and you would have discussed these issues with him before you made your statement on 20 January 2014?‑‑‑Yes.

PN889

And asked him what he remembered?‑‑‑No, I didn’t - I had my specifics of what I remembered.

PN890

You told him what you remembered?‑‑‑He had his specifics of what he remembered.

*** SANDRA PORTER XXN MR CHAMPION

PN891

Did you agree or disagree on what had happened?‑‑‑We agreed on most of what happened. A lot of the things where he was at work I couldn’t say what happened.

PN892

You’re not an employee of the union?‑‑‑Correct.

PN893

You have no formal role with the number one branch and never have done?‑‑‑Correct.

PN894

But you’re actively involved in the campaign for Ms Asmar’s election?‑‑‑Campaign - - -

PN895

- - prior to December 2012?‑‑‑That’s correct.

PN896

Now, it’s the case, is it not, that Mr McCubbin commenced employment with the number one branch sometime in early 2013?‑‑‑Correct.

PN897

Before that time he had had a very serious motorcycle accident?‑‑‑A long time before that, in 2003, I think it was.

PN898

He had some serious injuries arising out of that?‑‑‑Correct.

PN899

That incapacitated him for work?‑‑‑Correct.

PN900

Indeed, before he started at the union he had been out of work?‑‑‑Correct.

PN901

That was because - - -?‑‑‑I think after his accident he actually - this was pre-me - he actually did go back to the union for a time but that was pre-me, so - - -

PN902

But, Ms Porter, if we stay focussed on 2012, he was not working?‑‑‑No.

PN903

Not in paid employment?‑‑‑No.

PN904

That was a product of his injuries, unfortunately?‑‑‑Correct, yes.

*** SANDRA PORTER XXN MR CHAMPION

PN905

He was returning to - when he went to work at the number one branch in 2013 he was returning to work?‑‑‑On a trial basis.

PN906

That would have been important to him?‑‑‑Yes, yes.

PN907

Important to anyone to get back in the workforce?‑‑‑Correct, yes.

PN908

Particularly after a long lay-off?‑‑‑Yes.

PN909

That was important to Mr McCubbin?‑‑‑Yes.

PN910

Important to your family?‑‑‑Well, not to me personally but to him, yes.

PN911

Okay. Important on a financial level?‑‑‑No.

PN912

Not important on a - important on an emotional level?‑‑‑Emotional, yes.

PN913

It’s the fact is that - in July 2012 his employment came to an end at the number one branch - I beg your pardon, 2013?‑‑‑2013, yes.

PN914

So in fact he was only employed for a few months?‑‑‑Correct.

PN915

So it didn’t work out?‑‑‑Correct.

PN916

The fact that it didn’t work out was a real blow to him?‑‑‑Well, a blow - what do you mean?

PN917

Well - - -?‑‑‑Well, he was disappointed.

PN918

He was disappointed and the emotional upside which he had from returning to work was lost to him when he left the employment in July 2013?‑‑‑Well, I think it pointed out to him that he wasn’t fit enough to actually do the job anymore and, you know, he had to go with that.

PN919

That’s in July 2013?‑‑‑Correct.

*** SANDRA PORTER XXN MR CHAMPION

PN920

It’s fair to say that after he left the employment of the number one branch he became quite disillusioned?‑‑‑He was disillusioned whilst he was there as well, don’t worry. There were things that were happening within that union at that time that he wasn’t happy with.

PN921

That disillusion has persisted since July 2013 when he left the branch?‑‑‑For a little while after, yes.

PN922

For some months?‑‑‑For a few months after, yes.

PN923

So through the second half of 2013 he was disillusioned?‑‑‑I think we all were that were there, yes.

PN924

You were disillusioned along with him?‑‑‑I was very disappointed with what happened, yes.

PN925

You were disillusioned on your own behalf?‑‑‑Well, just that there were things that were - how would I say it? There were expectations that we had that fell short.

PN926

So as far as you were concerned those expectations that Mr McCubbin had at the union had not been fulfilled?‑‑‑That’s true.

PN927

That was so through the second half of 2013?‑‑‑Look, it was a bit disappointing to start with. We were quite upset, quite confused. After that we decided we wanted nothing more to do with the union.

PN928

But when you came to make your statement, Ms Porter, on 20 January 2014 you were - you remained disillusioned?‑‑‑We were asked - we were approached by Fair Work to see if we wanted to make a statement. We said, “Yes, we can tell the truth with what’s gone on,” and that was it and as far as we were concerned, it was finished then.

PN929

Okay. How did that happen? Who approached you?‑‑‑Chris Enright.

PN930

When did that happen?‑‑‑Sorry, I couldn’t be sure with the dates.

PN931

Did he approach you out of the blue?‑‑‑Yes.

*** SANDRA PORTER XXN MR CHAMPION

PN932

You didn’t volunteer anything?‑‑‑No.

PN933

You didn’t get a heads-up from anyone that he was going to call?‑‑‑Perhaps - I’m just trying to think whether Jane had been approached and rang and said, “Had we been approached?” We said, “No.”

PN934

Jane is a reference to Ms Govern?‑‑‑That’s true, yes.

PN935

Do you know did Ms Govern give your names to Mr Enright?‑‑‑I don’t know; don’t know.

PN936

But you got a call from Mr Enright and said you were happy to speak to him?‑‑‑Correct, yes.

PN937

That was how it came - that’s how you came to make this statement which has gone into evidence today?‑‑‑That’s right. That’s right.

PN938

All right. Ms Flynn - did she speak to you before - - -?‑‑‑Look, she may have done. I really - I cannot recall.

PN939

Now, in terms of your disillusionment with the number one branch, it’s fair to say that you were disillusioned with Ms Asmar?‑‑‑Well, not just Ms Asmar. There were a number of things that were happening within the union at that time that we felt weren’t honest.

PN940

Ms Asmar was an important part of that picture, as far as you know?‑‑‑Ms Asmar was leading the show, yes.

PN941

In terms of her leading the show, Mr McCubbin leaves the union in July 2013?‑‑‑That’s when he left, yes.

PN942

You knew that Ms Govern had been dismissed from her employment also in July 2013?‑‑‑Correct, yes.

PN943

You knew that Ms Flynn was having some troubles with the union at that time?‑‑‑True.

*** SANDRA PORTER XXN MR CHAMPION

PN944

You were present at a meeting at your house on 6 August 2013?‑‑‑Yes.

PN945

You live in Sunbury, I’m not sure of the address, but you were there and there was a meeting on that occasion?‑‑‑I wouldn’t say a meeting. It was a get-together, right? It wasn’t actually a meeting. There was a lot of emotional support that was needed because it had been a traumatic time at the union then and to help each other was to perhaps talk about not only union stuff but life in general. It was to support each other in a very trying time.

PN946

In terms of that trying time, Ms Govern was disillusioned with the union?
‑‑‑Ms Govern was upset with the union.

PN947

Ms Flynn was disillusioned with the union?‑‑‑Ms Flynn was upset with the happenings, yes.

PN948

Mr McCubbin was upset with the union?‑‑‑True.

PN949

You were upset - - -?‑‑‑There were a number of other people. Don’t just point out those - there were a number of other people who were quite upset with the union.

PN950

These were the people who were there at the get-together on 6 August: Ms Govern, Mr McCubbin, Ms Flynn and yourself?‑‑‑Yes, yes, yes.

PN951

As far as you were all concerned, Ms Asmar was leading the show?‑‑‑Yes.

PN952

She was the main target of your disillusion?‑‑‑No, not the main target; there were a few other people. She was one of them, yes.

PN953

At that get-together you talked about your sense of shared grievances with the union?‑‑‑Yes.

PN954

And with Ms Asmar?‑‑‑Yes.

PN955

You talked about right of entry tests on 6 August?‑‑‑No, we didn’t.

PN956

That was one of - - -?‑‑‑Well, perhaps it was brought up but as I said there was a lot of other things. It wasn’t just, “Hey, we’re talking about right of entry.” It would have been one of the things that would have been mentioned.

*** SANDRA PORTER XXN MR CHAMPION

PN957

You know you hear about right of entries. That’s what the petition was concerned with?‑‑‑Yes, yes.

PN958

My proposition for you, Ms Porter, is that one of the catalogue of things that you say you were concerned about is right of entry - - -?‑‑‑Yes.

PN959

- - in terms of the things about the union - - -?‑‑‑How it was done, yes.

PN960

- - and the concerns about Ms Asmar?‑‑‑Yes.

PN961

That was a topic of discussion, was it not, Ms Porter, on 6 August 2013?‑‑‑It was one of the topics of discussion.

PN962

Who said what about right of entries on 6 August 2013?‑‑‑Look, I really cannot recall. I can remember it being brought up but as you say, I’m not - I wasn’t employed there. I’m a bystander so I cannot recall what actually would have been said.

PN963

Do you say you said - I beg your pardon: do you say you told the get-together on 6 August 2013 what you were concerned about about right of entries?‑‑‑That it was done illegally, yes.

PN964

Okay, what did you say?‑‑‑I said that if people aren’t doing their own, that it is illegal. I also would have talked about - we talked about employment, the way employment was being handled within the union. We talked about - there was a number of issues and I can’t recall exactly what was said about each thing so I do apologise for that.

PN965

MR VAN DE WIEL: I’m just concerned - I’m sorry to interrupt - I’m just concerned that we’ve got an order for witnesses out of court and I understand Mr McCubbin was in a position where he could certainly listen to and hear this evidence. We’re concerned that that not happen. I think he’s now gone into another room.

PN966

THE VICE PRESIDENT: I’ll have my associate not to come near the court until he gives his evidence.

PN967

MR VAN DE WIEL: Thank you very much; sorry to interrupt.

*** SANDRA PORTER XXN MR CHAMPION

PN968

MR CHAMPION: I’ll wait for the associate’s return, your Honour.

PN969

THE VICE PRESIDENT: I think you can proceed, Mr Champion.

PN970

MR CHAMPION: If your Honour pleases. So what you, Ms Porter, at the get-together on 6 August and you said that if people weren’t - I hope I do it justice to the words you used - but my memory of what you said just a few moments ago in answer to a question of mine was that if people are not doing their own ROEs that’s illegal. Is that the guts of what you said?‑‑‑Look, I cannot be sure that that is exactly what I said. As I said, there were a lot of things that were going on. I can remember my specific conversations, what I’ve put my statement to, which was two times when it was brought up. The other, I couldn’t be sure about, right, as there was a lot of stuff going on, a lot of emotion, so I’m not going to say yea or nay about that, I’m sorry.

PN971

But beyond what’s in your statement, Ms Porter, you have no first-hand knowledge of whether people were doing their ROEs or not?‑‑‑That’s true.

PN972

You weren’t there?‑‑‑I was not there, that’s true.

PN973

There’s two specific occasions you mention in your statement?‑‑‑Exactly, apart from little times that I was helping out in the office and talking in the corridors.

PN974

But you had never made any statement about these two particular occasions until you made your statement on 20 January 2014?‑‑‑Until I was asked to by Fair Work.

PN975

You never raised it with anyone?‑‑‑Well, apart from with Rob but - Rob McCubbin, our private talk at home - these were the things that we were getting upset about time and time again, were the things that were going on and they were a bit underhanded as far as we could see. We had discussed them as a couple.

PN976

Then you come to speak to Mr Enright and then you make your statement of 20 January, 2014?‑‑‑True.

PN977

The first specific occasion you talk about is a conversation at a barbecue?‑‑‑True.

PN978

It’s what you deal with in paragraph 11 of your statement, Ms Porter. Do you have that?‑‑‑Yes.

*** SANDRA PORTER XXN MR CHAMPION

PN979

Okay. Now, this barbecue was - is the best you can do some time between January and March 2013?‑‑‑That’s correct. If I had my calendar I’d be able to tell you the date because I was a good person at putting dates on calendars but it had gone by then.

PN980

Okay. So you can only say January to March 2013?‑‑‑Yes.

PN981

No better recollection than that?‑‑‑It would have been more January than March - sorry, January than February, but anyway - - -

PN982

It might have been February?‑‑‑January, I would say; late January, but couldn’t be sure.

PN983

Might be later? Might be February, according to this statement; might be as late as - - -I’ve got the three in there: January to March.

PN984

You can’t be any more specific?‑‑‑No.

PN985

Might have been after 15 February?‑‑‑More than likely before, for this first meeting.

PN986

But you can’t say?‑‑‑I can’t say, no.

PN987

This barbecue is at the Asmars’ house?‑‑‑Correct.

PN988

As I understand it, you’re the only ones there?‑‑‑Correct.

When I say, “You’re the only ones,” you and Mr McCubbin?‑‑‑And Diana and David and their daughter.

PN989

And their daughter is an infant?‑‑‑Yes.

PN990

It’s a social barbecue?‑‑‑Social and to discuss union matters as well; usually when we went to their place it was always to do with the union.

PN991

What time of day?‑‑‑It was in the evening.

*** SANDRA PORTER XXN MR CHAMPION

PN992

Yes, and you say there was a conversation about ROEs?‑‑‑Correct, between Diana and Rob.

PN993

How did the issue come up?‑‑‑Look, I can’t recall who mentioned it first. It could have been Rob asking Diana what’s happening with the right of entries. There was a big push to get the organisers out into the field and what was holding them back was the ROE entry test and it would have been to say, “Come on, this has to be done.”

PN994

Yes, what other union business do you say was discussed at this barbecue?‑‑‑Employment - wages weren’t brought up because that was totally Diana’s role there - strategy, setting up; just various things like that and experience that Rob had had previously when he was employed.

PN995

Well, at this point Mr McCubbin is not an employee of the union?‑‑‑No, that’s correct.

PN996

He’s not there?‑‑‑That’s correct

PN997

Because he’s not employed he’s got no need of an ROE?‑‑‑That’s correct.

PN998

You say Ms Asmar - do you say it happened out of the blue that she - - -?‑‑‑No, it was a discussion that was happening. If you read back in my statement you can see there were handshakes made with Diana and Rob and David Asmar if Diana was successful within her campaign and Rob had been a big part of it as the previous one there would be a job for Rob at the union. So that’s why these things were being spoken about.

PN999

You say that she says that Ms Kitching was going to do a right of entry?‑‑‑Correct.

PN1000

Your position, was it not, was that Ms Kitching should be going off to pursue her own career?‑‑‑That was what was told to us when we were all - what do you call it - campaigning; that certain people were in to help and then they were to move on and let the ones that had the knowledge about the union help Diana, advise Diana, whatever you want to talk - to go forward.

PN1001

You knew that it would have been inappropriate for Ms Kitching to do Ms Asmar’s test?‑‑‑It would have been but that was - that’s not my business.

*** SANDRA PORTER XXN MR CHAMPION

PN1002

How did you respond?‑‑‑I did not respond at all. Diana was talking to Rob. I would sit quiet in a lot of it. If I was asked for my opinion I would say.

PN1003

You understand Ms Asmar’s evidence will be that she point-blank denies making that statement?‑‑‑Of course she would do that, yes; it’s because she’s done wrong.

PN1004

You understand that as at - if this conversation happened at a barbecue in January 2013 there was no logical reason for Ms Asmar to be discussing ROEs with Mr McCubbin?‑‑‑Yes, because they were all going to be employed together.

PN1005

Yes, and what do you say - was there any context as to why Mr McCubbin needed to know this?‑‑‑Because he was working closely with Diana - Rob was Diana’s secondhand man.

PN1006

Would you agree - - -?‑‑‑She was asking Rob advice about how to run a union.

PN1007

Would you agree with me it’s a somewhat unusual issue to be discussing at a summer barbecue; at a social occasion?‑‑‑No, no. All those sorts of things - every time we went to the Asmars it was either political or union.

PN1008

Okay?‑‑‑There was not a social connection with us outside of those topics so we were friends on the basis of union and that was it.

PN1009

Yes. Well, Ms Porter, what I want to squarely suggest to you is that Ms Asmar made no such comment at this barbecue in early 2013; it simply didn’t happen. What do you say to that?‑‑‑I say that Ms Asmar is lying because I was there on two occasions where she had stated that Kimberley had done her right of entry.

PN1010

Your evidence to his Honour is really the product of your loyalty to Mr McCubbin as part of his ongoing fallout with the union?‑‑‑Not correct - I’m an honest person and I’m speaking the truth there. I saw it. I heard it. Regardless of what Rob says or does, I am an honest person and what I’ve said and stated is the truth.

PN1011

Now, the next time, Ms Porter, that ROEs come up you say is in Ms Asmar’s office some time later?‑‑‑Correct, correct.

PN1012

I’m referring you to paragraph 16 of your statement there?‑‑‑Correct.

*** SANDRA PORTER XXN MR CHAMPION

PN1013

You have that?‑‑‑Correct.

PN1014

Again, I want to put squarely to you that Ms Asmar said no such thing; that Ms Kitching had done her right of entry test. It simply didn’t happen?‑‑‑It did happen. That one I specifically remember because I was very upset about how all of a sudden we were hearing things that had been going on behind our back and that weren’t told to us and this was just another one.

PN1015

You say you were furious in this meeting, Ms Porter; that’s the word you use in your statement?‑‑‑I was furious.

PN1016

You were furious because you believed Ms Kitching was being employed by way of a payback for a loan - - -?‑‑‑Correct, which was what Ms Asmar had told us.

PN1017

You said your piece?‑‑‑I did.

PN1018

That’s your evidence?‑‑‑I did say my piece, as in, “Is there any more things here that you haven’t told us? Rob McCubbin, Rob, my partner, is going to be going into employment with you and I don’t want his name dragged down with any dodgy things you are doing.”

PN1019

You were concerned about dodgy things and you told Ms Asmar straight out; it’s the word you used in your statement?‑‑‑Yes.

PN1020

Do you see that?‑‑‑Yes.

PN1021

You were concerned about - - -?‑‑‑So much so that Ms Asmar came to me later and said, “Sandy, are we all right?”

PN1022

So you’ve had a go at her, is that fair? You’ve had a go at Ms Asmar about Ms Kitching?‑‑‑Not a go; I spoke my mind.

PN1023

Then you say - it’s your account of the meeting that in the next breath she says, “By the way, Kimberley’s done my test”?‑‑‑It didn’t happen like that. That happened beforehand.

PN1024

Did you say, “Look, that’s dodgy?” Did you say anything about that?‑‑‑Well, I probably said that that wasn’t the right thing to do but - - -

*** SANDRA PORTER XXN MR CHAMPION

PN1025

That’s not in your statement, Ms Porter, is it?‑‑‑ - - but - well, no, it’s not.

PN1026

Did you say it or not?‑‑‑I’ll say I didn’t say it. I would have thought it.

PN1027

What did you say?‑‑‑In - - -

PN1028

What did you say when she said, “Kimberley Kitching has done my ROE test?” What did you say to Ms Asmar?‑‑‑Actually, I recall now because she wasn’t talking to me, she was talking to Rob and she suggested that Rob do the same.

PN1029

Yes? What did you say?‑‑‑I didn’t say anything at that stage.

PN1030

Ms Porter, your evidence to the Commission is you’re a person who’s prepared to speak your mind?‑‑‑Not all the time, no; I sit quietly until I’ve had enough and at that stage I’d had enough.

PN1031

In this meeting you got stuck into Diana about - - -?‑‑‑I didn’t get stuck into her. I pointed out that there were things that had already started to happen that wasn’t discussed with Rob and if Rob was going to be the right-hand man, which was all supposedly how Diana and David Asmar had said to Rob, that this wasn’t a very good start; that there were also other people that were also a part of this union and would she really like to drag them into the way she was running it and could she stand in front of her members and ask whether - tell them that it was a transparent union. That is how I answered that question and to me, she couldn’t do that because it wasn’t transparent even at that stage.

PN1032

So if things weren’t right you were prepared to tell her so?‑‑‑In that context; not directly but standing up and saying, “You are going to say to your members, ‘I’m being totally transparent,’ when you’re not” - it’s lying.

PN1033

Okay, and if she had got Ms Kitching to do her test, that was not right?‑‑‑That’s not right.

*** SANDRA PORTER XXN MR CHAMPION

PN1034

You would have told her so?‑‑‑No, because Rob - that bit is Rob’s part to deal with. I had my own personal things that I needed to say. It’s not whether someone did the right of entry or things like that. I was more pointing out that things had started to do badly straight away. If you’re going to run and take money from members, you need to be able to stand up and say, “I’m being transparent.” She wasn’t and that was my grievance. Nothing about the right of entry specifically, it was just saying, “You’re not being transparent already and this is how we’re going to start a union,” or, “You’re going to start a union,” not me.

PN1035

It didn’t happen, Ms Porter, did it?‑‑‑It did happen and that’s why I remember that vividly.

PN1036

Your evidence again about this meeting is a product of your loyalty to Mr McCubbin who has had a bad fallout with Ms Asmar?‑‑‑I’m loyal to Mr McCubbin but it’s not a fallout. She was doing the wrong thing from the start. She wasn’t being transparent, there was a lot of things going on right from the start that I just thought, “No, we don’t need to be a part of this. This is no different than the one before.”

PN1037

Did you tell Mr McCubbin to do his own ROE test?‑‑‑I didn’t tell him to do - that was what he was doing at work. We were going on holidays on the - I think it was 16 March. I was thinking about holidays after that.

PN1038

So you didn’t speak to him about the ROE test; his own ROE test?‑‑‑I may have done but it wouldn’t have been something that stuck out because as I said what happened at the office happened at the office.

PN1039

You would have been concerned that he not do something dodgy?‑‑‑I wasn’t doing anything dodgy. Mr McCubbin has got his own mind, right, just like Ms Asmar has, like Ms Kimberley Kitching. I wasn’t doing an ROE test, it wasn’t my problem. Yes, I’m loyal to Rob but what Rob does it Rob’s business.

PN1040

So you’ve got no recollection of any conversation you had with him in March - February or March 2013 about whether he did his own ROE test?‑‑‑We would have had - he didn’t do his ROE. He didn’t do it because I had to send the - he asked me to send the code through to Kimberley. He did not do his ROE. We know that.

PN1041

We don’t know whether he did it or not?‑‑‑He did not do it because I sent the ROE through to Kimberley Kitching.

PN1042

Ms Porter, all you sent to Ms Kitching, was it not, was registration details?‑‑‑That’s right.

PN1043

That’s not the ROE; they’re different, you’d agree with that?‑‑‑He did not do his - he did not do his - we were on holidays. We went on holidays. He hadn’t done it.

*** SANDRA PORTER XXN MR CHAMPION

PN1044

Well, you went on holidays in March?‑‑‑That’s right.

PN1045

The evidence is that the test was done on 15 February?‑‑‑He did not do his test.

PN1046

You don’t know if he did or he didn’t. What he did at the office - he’s got a mind of his own?‑‑‑Well, he has said to me he did not do his test, correct. I will - right.

PN1047

I have nothing further.

PN1048

THE VICE PRESIDENT: Ms Porter, is there anything arising from the questions that you’ve been asked that you wish to add to your evidence?‑‑‑Can I just say that through this whole experience I feel like my character has been challenged? I think everyone, actually, that’s had to come up here and give evidence has had a character assassination. We are doing something on behalf of the royal commission we’ve been asked to do. I think it’s been a bit unjust as to how we’ve been put on the stand and everyone has to be questioned like we have. The only bit that I can add is that Rob and I are honest people. That is why Rob resigned his position and also through his injuries. He said, “It’s not worth it. I can’t take it on. I can’t keep setting these people right.” So the easiest thing was to resign. We’ve had no interest in following the union since we’ve resigned - since he resigned. We’re getting on with our life and unfortunately this keeps dragging us back into it. So that’s all I’d like to add and thank you for your time.

PN1049

Thank you for your evidence?‑‑‑Thank you.

PN1050

You can step down and you are excused from further attendance.

<THE WITNESS WITHDREW [2.40 PM]

PN1051

THE VICE PRESIDENT: I think the next witness is scheduled for 3 pm, Ms McIntosh. Pardon?

PN1052

MR VAN DE WIEL: I think she’s here.

PN1053

THE VICE PRESIDENT: You think she’s here?

PN1054

MR VAN DE WIEL: Yes. I saw her at lunch time, so - - -

PN1055

THE VICE PRESIDENT: Okay. We’ll organise her to come in. Thank you, Ms McIntosh. You can come to the witness box. I’ll ask you to stand while my associate administers the oath or affirmation.

<DEIDRE MCINTOSH, SWORN [2.41 PM]

<EXAMINATION-IN-CHIEF [2.41 PM]

PN1056

THE VICE PRESIDENT: Please be seated. Ms McIntosh, have you made a statement which is dated 9 October 2014?‑‑‑Yes.

PN1057

Do you have a copy of it there with you?‑‑‑I do.

PN1058

Is that a document which bears your signature and it is 47 numbered paragraphs?‑‑‑Yes.

PN1059

Are there any corrections or amendments you would like to make to that statement?‑‑‑No, thank you.

PN1060

It has attached to that a statutory declaration?‑‑‑Yes.

PN1061

Are the contents or your statement true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.

PN1062

Yes, I propose to admit that statement into evidence in these proceedings. I’ll mark it exhibit 9.

EXHIBIT #9 WITNESS STATEMENT WITH ATTACHMENT OF DEIRDRE MCINTOSH

PN1063

THE VICE PRESIDENT: Mr Van De Weil or Mr Champion will have some questions for you. Mr Van De Weil? Mr Champion.

<CROSS-EXAMINATION BY MR CHAMPION [2.43 PM]

PN1064

MR CHAMPION: We’re doing that on purpose. Ms McIntosh, you started your secondment at the HSU number one branch on 4 March 2013?‑‑‑Yes.

PN1065

You did your ROE test some two months and two weeks later on 17 May 2013?‑‑‑Yes.

*** DEIDRE MCINTOSH XXN MR CHAMPION

PN1066

We know as much from your statutory declaration, appended to your statement?‑‑‑Sorry?

PN1067

We know that much because you say so in your statutory declaration, attached to your statement?‑‑‑Yes.

PN1068

You stand by your statutory declaration, that you did your own test?‑‑‑Yes.

PN1069

That was the right thing to do?‑‑‑Yes.

PN1070

You did your own test?‑‑‑I was instructed to do my own test.

PN1071

And you did?‑‑‑Yes.

PN1072

Now, when you say you were instructed to do your own test, who were you instructed to do your own test by?‑‑‑Mr McCubbin.

PN1073

He then was in a position - was he called lead organiser, informally or otherwise?‑‑‑Yes.

PN1074

He told you to do your own test; that it was important?‑‑‑Yes.

PN1075

You did your own test?‑‑‑Yes.

PN1076

Now, might I ask you this? It’s not secret, Ms McIntosh, that you’re a political opponent of Ms Asmar?‑‑‑I was.

PN1077

Was a political opponent - you ran in the last elections?‑‑‑Well, our team was disqualified so technically no, didn’t run against her.

PN1078

I think I read you actively campaigned against her?‑‑‑Yes, yes.

PN1079

You say this at paragraph 9 of your statement, Ms McIntosh - would you be good enough to turn that up? “I do know that it was common knowledge around the branch at the time that Kimberly did the ROE tests for staff.” Do you see that?‑‑‑Yes, I see that.

*** DEIDRE MCINTOSH XXN MR CHAMPION

PN1080

You say that? Can I suggest to you that when you say, “common knowledge,” that was the gossip?‑‑‑No, it wasn’t gossip.

PN1081

It was gossip?‑‑‑No, it wasn’t gossip.

PN1082

Okay. Might I also suggest to you that what you say was common knowledge was not born out my your personal experience as to the ROE test?‑‑‑I was expecting my test to be done for me and it wasn’t.

PN1083

And it wasn’t, so - - -?‑‑‑So I asked questions: “When is it going to be done?”

PN1084

To that extent, because you did - you were directed by Mr McCubbin to do your own test?‑‑‑Yes.

PN1085

You did do your own test. If in fact it was common knowledge, your personal experience didn’t bear that out?‑‑‑My personal experience? The only reason I had to do my own right of entry exam was because I was being asked for my permit upon going to work sites and when I went to my lead organiser to ask when was it going to be done, Rob’s response was, “Why hasn’t Kimberley done it for you?” We were running out of time. I needed to get on sites. So he said, “You’d best do your own.”

PN1086

Okay. Ms Kitching certainly never made a statement to you that she would do your ROE?‑‑‑Never.

PN1087

Ms Asmar never had a statement to you that Ms Kitching would do your ROE?‑‑‑To my knowledge and recollection from so long ago, she may or she may not have. I’d like to say she had but I can’t be 100 per cent certain. Everybody talked about it, including Ms Asmar.

PN1088

It’s not in your statement, is it, Ms McIntosh?‑‑‑No, because I can’t recall with accuracy so I don’t want to put anything in there I don’t know for certain.

PN1089

You refer to a Mr Tim Rowley in your statement at 22 and 23 of your statement; the context is you’re referring to Ms Flynn suggesting that you did his test?‑‑‑Yes.

PN1090

You refute that?‑‑‑I definitely did not do his test.

*** DEIDRE MCINTOSH XXN MR CHAMPION

PN1091

Mr Rowley was another organiser?‑‑‑Yes.

PN1092

In fact, your evidence to this Commission is that he did his own test?‑‑‑Yes.

PN1093

Again, that was the right thing to do?‑‑‑Yes.

PN1094

That was contrary to any common knowledge or common practice that Ms Kitching was doing the organiser’s tests?‑‑‑What was to my knowledge was that Kimberley didn’t have time and we needed our right of entries quite quickly to gain access to sites, so we had to do our own.

PN1095

So when you say it was common knowledge, that didn’t hold true for you, do you agree with that, because you did your own?‑‑‑Just because she didn’t do my test doesn’t mean that she didn’t do the others or that it wasn’t common knowledge. She just didn’t have time to do mine.

PN1096

She didn’t do Mr Rowley’s, so he was again - there’s two exceptions to what was the common practice so you would say?‑‑‑Possibly, but I’m not privy to discussions that Mr Rowley would have had regarding his right of entry permits.

PN1097

Then you say it’s one of the sources of the common knowledge, what Ms Govan said to you?‑‑‑Yes, I had discussions with a few people about it.

PN1098

Okay. What you say that Ms Govan said to you is at paragraph 5 of your statement, Ms McIntosh, if I might take you back there. Take a moment to review paragraph 5 of your statement?‑‑‑Yes.

PN1099

As I understand your evidence, the first conversation you had about ROEs in the office was with Ms Govan?‑‑‑Yes. I’d heard the term being used around the office and I asked her about it.

PN1100

She said, “Don’t worry, either Kimberley or Ms Lee will take care of it for you”?‑‑‑Yes, she explained to me what they were and that there was a process and that Kimberley or Peggy would take care of it.

PN1101

Ms Lee was then the industrial assistant or maybe the industrial agreements officer? I may have the title wrong?‑‑‑Yes, one or the other.

*** DEIDRE MCINTOSH XXN MR CHAMPION

PN1102

One or the other - and what in fact happened thereafter in terms of Ms Lee taking care of it is that she provided you with the necessary forms - - -?‑‑‑Yes, she did.

PN1103

- - to apply to the ACTU and so forth?‑‑‑Yes.

PN1104

That’s precisely what you say at paragraph 7 of your statement?‑‑‑Yes.

PN1105

Ms Lee’s never said she would do the test for you?‑‑‑No.

PN1106

Indeed, what she did was quite proper, in that she took the necessary - made the necessary administrative arrangements for you to do your own test?‑‑‑Yes.

PN1107

Again, in terms of Peggy Lee taking care of it for you, as Jane Govan had said, that didn’t match with what you say is common knowledge, that Ms Kitching was doing the tests?‑‑‑Well, I can’t speak for Ms Peggy Lee, but when Jane said she would take care of it for me I assumed she would get everything ready. Obviously she would need my information for the permit: my name, date of birth, address, all that kind of information.

PN1108

But there’s nothing wrong with either Ms Kitching or Ms Lee doing that for you, getting things ready, provided you do your own test and you do the training yourself?‑‑‑It wasn’t indicated to me that I would need to do my own test at that point in time.

PN1109

Okay?‑‑‑I actually assumed it would be taken care of by Kimberley.

PN1110

You assumed it but what actually happened - you assumed that, Ms McIntosh, and I understand that but what Peggy told you, you say at the end of paragraph 7 of your statement is that she gave you an email and a log and you should follow the links?‑‑‑Yes.

PN1111

You followed the links; that’s you doing your own test?‑‑‑Yes, follow the links to get my log-in and password.

PN1112

“She provided me with an email, a log-in and a password and I should follow the links”?‑‑‑Yes.

PN1113

Can I suggest to you that following the links enables you to do your own test?‑‑‑I would assume so, yes; actually, I would know so.

*** DEIDRE MCINTOSH XXN MR CHAMPION

PN1114

Ms Lee never did the test for you?‑‑‑No, she did not.

PN1115

She never said she’d do the test for you?‑‑‑No, she didn’t.

PN1116

Never said that Ms Asmar had said to her that Ms Kitching - Ms Lee would do the test for you?‑‑‑No.

PN1117

No suggestion along those lines?‑‑‑No.

PN1118

So your dealings with Ms Lee is not evidence that of the common practice or the common knowledge around the branch?‑‑‑I never spoke with Peggy about Kimberley doing a test for me or anybody else.

PN1119

But in terms of her dealings with you, Ms McIntosh, she was making administrative arrangements for you to do the test?‑‑‑Yes, that was Peggy’s role.

PN1120

That was quite proper?‑‑‑I would think so, yes.

PN1121

Then at 14 and 15 of your statement, Ms McIntosh, you avert a conversation you had with Mr McCubbin. You gave some evidence about that a short time ago. Do you recall?‑‑‑Yes.

PN1122

When you had this conversation with Mr McCubbin, his approach was not to make arrangements for Ms Kitching to do the test, was it, for you?‑‑‑His - sorry?

PN1123

His approach was not to make arrangements for Ms Kitching to do the test for you, was it?‑‑‑His response when I asked him about my right of entry permit - because I was having difficulty accessing sites - his response was, “Hasn’t Kimberley done it for you?” When I responded, “No,” he said, “We can’t wait any longer. You need to get on site. You need to get this test done.”

PN1124

He told you to do your own test?‑‑‑Yes, he instructed me.

PN1125

He told you to reschedule meetings to make it happen?‑‑‑Yes.

PN1126

That it was important?‑‑‑Yes, because I told him I was full that week with meetings.

*** DEIDRE MCINTOSH XXN MR CHAMPION

PN1127

So in terms of Mr McCubbin’s approach, it was not to get Kimberley to do the test, it was to get you to do your own test?‑‑‑That was his instruction.

PN1128

That doesn’t - that’s not evidence of the common knowledge that Kimberley was doing the tests either?‑‑‑It doesn’t disprove it wasn’t common knowledge. Just because she’s not available to do it doesn’t mean that she wasn’t going to do it.

PN1129

In terms of your personal interaction with Mr McCubbin, he took immediate steps for you to free up your schedule so you could do your own test?‑‑‑I had to. I needed to be able to do my job.

PN1130

Ms McIntosh, that’s 180 degrees from making arrangements for Ms Kitching to do your test?‑‑‑I never made arrangements for Ms Kitching do my test. I never spoke to Ms Kitching about that test.

PN1131

Then when you do your test you actually do it in Mr McCubbin’s office?‑‑‑Yes.

PN1132

You’re doing it and you happen to run in to a Mr Wale Hassan, is that right?‑‑‑I saw him when I left the office; Mr McCubbin’s office.

PN1133

You’d done the test? You had done the test yourself, you say, before you saw Mr Hassan?‑‑‑I hadn’t completed it.

PN1134

But you’d heard a whisper that Mr Hassan had some answers?‑‑‑Yes.

PN1135

You asked if you could check the answers that you’d done against his answers?‑‑‑I made a comment, saying, “I heard you had all the answers.”

PN1136

Okay, if Mr Kitching was doing the tests, Mr Hassan wouldn’t need any answers, would he?‑‑‑I don’t know. I don’t know. To my recollection at that stage the new organisers that had been put on were doing their own tests.

PN1137

Who are you referring to as the new organisers?‑‑‑I think I’d seen earlier in the week before Cameron Granger was sitting at the open table doing his test.

PN1138

He did his own test, so that’s not Kimberley doing the test?‑‑‑No.

*** DEIDRE MCINTOSH XXN MR CHAMPION

PN1139

Which other new organisers?‑‑‑Actually, Cameron is the only one I actually saw doing that as I walked past.

PN1140

Yes?‑‑‑I don’t know about the other organisers.

PN1141

The fact that you don’t know, Ms McIntosh, suggests to me that what you say is common knowledge is no more than gossip?‑‑‑No, it was common knowledge. I’ll stand by that statement.

PN1142

Okay. Whose common knowledge do you say it was, Ms McIntosh?‑‑‑So - okay: Diana, Lee, David, Jane, Sasha - I’m trying to think who else was there around that time - the majority of the people that were there when I was first employed.

PN1143

Well, you understand Sasha - Mr Chudnovsky, I think I may be mispronouncing his surname - his evidence to the royal commission was that he did his own test?‑‑‑I don’t know. I wasn’t around when he would have done his test or didn’t do his test.

PN1144

So you just don’t know?‑‑‑I don’t know whether he did it or not. I just know what the talk was around the office.

PN1145

Mr Eden’s evidence was that he did his own test, to the royal commission. You don’t know if he did his own test or not?‑‑‑No, I wasn’t there.

PN1146

Mr Sherriff - you mentioned Mr Sherriff in paragraph 21 of your statement - you spoke to him?‑‑‑Yes.

PN1147

He told you he did his own test?‑‑‑No, he told me he got 100 per cent. He didn’t tell me he did his own. His words were, “I got 100 per cent.”

PN1148

You’re splitting hairs, aren’t you, Ms McIntosh?‑‑‑No, I’m telling the truth.

PN1149

He got 100 per cent?‑‑‑He got 100 per cent.

PN1150

He certainly didn’t say, “Ms Kitching did my test”?‑‑‑Never mentioned it to me.

*** DEIDRE MCINTOSH XXN MR CHAMPION

PN1151

If someone says to you, “I got 100 per cent” - what were his exact words, Ms McIntosh?‑‑‑I think we were discussing the percentage that I got and I said I think I got around 97 and he said, “I got 100.”

PN1152

Okay, and you didn’t take that - what I suggest to you is that’s a statement from Mr Sherriff, a direct statement, that he did his own test?‑‑‑He told me he got 100 per cent and he was making fun of me because I didn’t do as well as he did.

PN1153

Can I suggest to you that, “I got 100 per cent,” is a statement from Mr Sherriff in the clearest possible terms that he did his own test?‑‑‑I never asked Mr Sherriff whether he did his own test or not and he never divulged that information to me, either.

PN1154

But he did say, “I got 100 per cent”?‑‑‑He said, “I got 100 per cent.” It’s in my statement.

PN1155

Would you agree with me that’s consistent with - that the Commission might take from that, might draw an inference from that that he did his own test?‑‑‑Not necessarily.

PN1156

That’s a statement by him that he did his own test?‑‑‑Not necessarily, going on what I knew at the time.

PN1157

It’s contrary to any practice, Ms McIntosh, that Ms Kitching was doing tests for any organisers in terms of the personal experience you had at the HSU number one?‑‑‑Not in my opinion.

PN1158

Nothing further.

PN1159

THE VICE PRESIDENT: Ms McIntosh, arising from the questions that you’ve been asked, is there anything of a factual nature that you wish to say to this Commission in relation to those matters?‑‑‑No, thank you.

PN1160

Thank you for your evidence. You can step down and you are excused from further attendance.

<THE WITNESS WITHDREW [2.59 PM]

PN1161

THE VICE PRESIDENT: Mr Van De Weil - - -

PN1162

MR VAN DE WIEL: Poses a bit of a problem.

PN1163

THE VICE PRESIDENT: What’s the problem.

PN1164

MR VAN DE WIEL: The problem is this: we are scheduled to come back before you tomorrow and the idea was that we would get, if you like, my clients to give evidence.

PN1165

THE VICE PRESIDENT: Yes.

PN1166

MR VAN DE WIEL: Now, it seemed to me, with the greatest of respect, in terms of the concept of natural justice they shouldn’t be required to give evidence until such time as we know what evidence is led against them.

PN1167

THE VICE PRESIDENT: Well, you know what evidence could well be led against them by their statements.

PN1168

MR VAN DE WIEL: I know what potentially could be led against them.

PN1169

THE VICE PRESIDENT: Potentially, yes.

PN1170

MR VAN DE WIEL: So that’s the rub, if you like.

PN1171

THE VICE PRESIDENT: Yes.

PN1172

MR VAN DE WIEL: Can I put it this way? I don’t believe that there is a potential for injustice in dealing with Mr Mitchell. I don’t believe that but I do believe, with the greatest of respect, that there could well be in relation to both Mr Katsis and Ms Asmar. Now, the position is Mr Mitchell is here today. If I could have five minutes to speak with him I could certainly dispose of Mr Mitchell, if I can use that word without any offence to him.

PN1173

THE VICE PRESIDENT: Yes. Now, the material on the file includes correspondence from Mr Enright.

PN1174

MR VAN DE WIEL: It does.

PN1175

THE VICE PRESIDENT: That is material on the file that I propose to have regard to. Do you require him for cross-examination in relation to that material? He’s on the list of witnesses but I think - I don’t think your instructing solicitor has indicated that you wish to cross-examine him. I don’t know that really he’s a witness in that sense.

PN1176

MR VAN DE WIEL: I think we’ve kept our powder dry on Mr Enright.

PN1177

THE VICE PRESIDENT: Pardon?

PN1178

MR VAN DE WIEL: I think we’ve kept our powder dry on Mr Enright.

PN1179

THE VICE PRESIDENT: You might have, yes. So what’s your position?

PN1180

MR VAN DE WIEL: I think that may well depend in terms of what position is adopted by Ms Lee. That’s something that does concern me about the interchange between them.

PN1181

THE VICE PRESIDENT: That’s something that - - -

PN1182

MR VAN DE WIEL: And in relation to the other correspondence of Mr Enright’s, by and large it’s largely analytical of other material and it really is no more than his views about what he thinks, which is with the greatest of respect not the views that we would necessarily urge you to adopt in relation to the matter.

PN1183

THE VICE PRESIDENT: It’s not evidence that I would have regard to.

PN1184

MR VAN DE WIEL: It’s not evidence; it’s an analysis and it’s a report.

PN1185

THE VICE PRESIDENT: Yes.

PN1186

MR VAN DE WIEL: With the greatest of respect I say you really should put it to one side in terms of a consideration of this matter because what people say to Mr Enright is not necessarily what they say in the witness box. But old people like me sometimes have a habit of saying, “Well, I can remember I did this case and this is what happened.” I can remember I acted for Dr McGoldrick and we were before Mr Justice Beech. Dr McGoldrick - you might remember, he was quite notorious.

PN1187

THE VICE PRESIDENT: Yes.

PN1188

THE VICE PRESIDENT: He was hiding his Rolls Royce and there was a situation of whether he had made some utterances which were said to be in contempt of the court which comprised of Mr Justice Beech and I think Mr Justice Beech said to me, “Before I finish dealing with Mr” - or Dr McGoldrick as he then was; I don’t think he’s a doctor any more - “what do you want to say about penalty,” before we’d even finished the evidence and the court of appeal took the view that it’s a bit unfair to do that without knowing what all of the evidence was. I say, with the greatest of respect, in relation to Mr Katsis and Ms Asmar, it’s a bit unfair to call on them before we know what all of the evidence is.

PN1189

THE VICE PRESIDENT: Okay, so there’s a prospect - it might be more convenient than anything that Mr Mitchell giving his evidence today and not needing to come back tomorrow and you’re making the application that the remainder of the evidence be adjourned until the evidence of the other witnesses due to be given today and Mr Mann be completed on the 4th.

PN1190

MR VAN DE WIEL: Mr Mann is really a discrete issue. I mean, that’s really a technical point in terms of did other records as we say - the records which are printed out and provided to Mr Enright and the report of Mr Mann’s, does that accurately reflect the electrical communications that have been received at the ACTU office, because there are some concerns about that.

PN1191

THE VICE PRESIDENT: Anyway, he’s not available until the 4th.

PN1192

MR VAN DE WIEL: That’s a technical aspect. I’m not concerned about that.

PN1193

THE VICE PRESIDENT: Yes, but your application is that whether we deal with Mr Mitchell today or not, we adjourn until the 4th and we proceed on 4 May and we proceed in the same order as the witnesses that were scheduled.

PN1194

MR VAN DE WIEL: In relation to Ms Asmar and Mr Katsis. Mr Mitchell is in a quite distinct category.

PN1195

THE VICE PRESIDENT: Yes, and what’s the situation with Mr Tredrevsky Usinov?

PN1196

MR VAN DE WIEL: He is no longer a member of the union. He was very concerned prior to the royal commission that we assist him with getting his statement before the royal commission and indeed, I don’t know that I actually announced whether we appeared for him or not but for all intents and purposes we had certainly given him advice and he was - - -

PN1197

THE VICE PRESIDENT: Are you proposing to call evidence from him?

PN1198

MR VAN DE WIEL: No, we’re not hoping to call evidence from him. I don’t even know if he’s in Australia, to be perfectly frank.

PN1199

THE VICE PRESIDENT: No, no. Very well, perhaps we can cross him off the list of witnesses.

PN1200

MR VAN DE WIEL: I think we can.

PN1201

THE VICE PRESIDENT: So that there remains potentially Ms Govan, Ms Lee, Mr McCubbin, Mr Mann.

PN1202

MR VAN DE WIEL: Yes.

PN1203

THE VICE PRESIDENT: Mr Enright is at this stage not required but you want to keep your powder dry?

PN1204

MR VAN DE WIEL: I want to keep my powder dry in relation to him.

PN1205

THE VICE PRESIDENT: Okay, and then Ms Asmar and Mr Katsis, who will give evidence after the others, and Mr Mitchell, who you’ll ascertain the situation if I have a brief adjournment?

PN1206

MR VAN DE WIEL: Now, there is - we have sought to examine the records of the ACTU in relation to this. We have obtained an expert called Richard Rosailon. Now, he knows Mr Mann. Have we submitted - with respect, your Honour - a KBMG report in relation to that matter?

PN1207

THE VICE PRESIDENT: There was a draft report. Is there a final report or a final document?

PN1208

MR VAN DE WIEL: I don’t know if he’s gone past the draft report or whether he’s just confirmed the draft report.

PN1209

THE VICE PRESIDENT: I do have a report that’s dated 11 November.

PN1210

MR VAN DE WIEL: As I understand it, your Honour, there might be some minor changes in relation to that but really what we are concerned about - the gravamen of it is this: the original server was (indistinct) in Adelaide. Then the material was transferred to another server and then there was an issue about whether or not - there was no issue about it - Mr Katsis was originally not part of the material which was transferred over from the original server to the slave server, if I use that expression. Then there is a whole issue in terms of programming. We spoke - Mr Champion and I - to Mr Rosailon the other day. He knows Mr Mann and the suggestion was floated with us whether or not he and Mr Mann can speak to each other so that they can more readily either identify or have an agreed position in terms of that material. Now, I said it was best if we raise that with you rather than for us to embark on the activity without your approval or knowledge.

PN1211

THE VICE PRESIDENT: Yes.

PN1212

MR VAN DE WIEL: If you are of the view that that would facilitate matters and bring matters more timely to a head, Mr Rosailon is more than happy to speak with Mr Mann as I understand Mr Mann and he previously worked together, they know each other. So subject to your approval we would seek for Mr Rosailon to speak to Mr Mann with a view to arriving at some consensus.

PN1213

THE VICE PRESIDENT: I have no objection to that course.

PN1214

MR VAN DE WIEL: Thank you.

PN1215

THE VICE PRESIDENT: Perhaps there can be a report on the outcome of it when we resume on the 4th.

PN1216

MR VAN DE WIEL: Okay, well, that’s what we’ll organise and - okay.

PN1217

THE VICE PRESIDENT: Yes, yes. Very well, and so those matters will be dealt with at that time. So perhaps if we adjourn until 3.30 and we can see - - -

PN1218

MR VAN DE WIEL: I can speak with Mr Mitchell and see if he feels that there’s any disadvantage to him.

PN1219

THE VICE PRESIDENT: Yes.

PN1220

MR VAN DE WIEL: I believe that we can - - -

PN1221

THE VICE PRESIDENT: It looks like we are going to need the next day and probably more.

PN1222

MR VAN DE WIEL: 4 May?

PN1223

THE VICE PRESIDENT: 4 May and probably a further date to complete the matter, so - - -

PN1224

MR VAN DE WIEL: I don’t know what 4 May is; is it a Friday or what is it?

PN1225

THE VICE PRESIDENT: It’s a Monday.

PN1226

MR VAN DE WIEL: Are you free, with respect, later in that week?

PN1227

THE VICE PRESIDENT: I don’t think so but I’ll check my commitments and consult with you and we’ll look at a time that’s convenient to everybody.

PN1228

MR VAN DE WIEL: We’ll come back at 3.30?

PN1229

THE VICE PRESIDENT: Yes, we’ll adjourn till 3.30.

SHORT ADJOURNMENT [3.11 PM]

RESUMED [3.27 PM]

PN1230

MR CHAMPION: Your Honour, could I call Mr Mitchell at this stage?

PN1231

THE VICE PRESIDENT: Yes, Mr Mitchell, if you can come to the witness box?

<STEVEN MITCHELL, SWORN [3.28 PM]

<EXAMINATION-IN-CHIEF BY MR VAN DE WEIL [3.28 PM]

PN1232

MR VAN DE WIEL: Mr Mitchell, do you have there in the witness box with you a statement that you have made which I have an unsigned copy dated 5 August 2014?‑‑‑Yes, I do.

PN1233

Is yours signed?‑‑‑No, it’s not.

PN1234

But you’ve read it?‑‑‑Yes, I’ve read it.

*** STEVEN MITCHELL XN MR VAN DE WEIL

PN1235

It’s true?‑‑‑Yes.

PN1236

Okay. Can I ask you to look - - -

PN1237

THE VICE PRESIDENT: I was just going to clarify the annexures. You’re going to?

PN1238

MR VAN DE WIEL: Yes, I’m going to do that. Do you have also a copy of an application for an entry permit signed by Ms Asmar and there’s a written date there; 12 March 2013?‑‑‑Yes, I do.

PN1239

Okay. On the third page of that document do we have, also dated 12 March, your signature of the foot of the document?‑‑‑Yes, we do.

PN1240

Okay, let’s move on. Have we got also a certificate of achievement with your name on it from Fair Work signed by Jennifer Evans on that first annex? I think it’s got 5 February 2013. You’ve got that? It’s on the back of - - -?‑‑‑Yes.

PN1241

It’s on the back of your signature, if you like?‑‑‑Yes.

PN1242

Okay, let’s move on. There’s a statement which is said to be annexure SM2, which is a statutory declaration made by you - - -?‑‑‑Yes, I have that.

PN1243

- - in Echuca on 11 September 2013, taken before Jordan Orr, the deputy registrar, Magistrates’ court, Echuca law courts - you’ve got that?‑‑‑Yes, I do.

PN1244

Okay. There’s another annexure, SM3, which is a letter from a Ms Bond addressed to you, dated 4 February; is that right?‑‑‑Yes, it is.

PN1245

Do you know how you got that document?‑‑‑That one was actually - I’m not sure. I think it was emailed to me.

PN1246

Yes?‑‑‑It went to the home computer if it was emailed to me because at that time I didn’t have a work computer as such.

PN1247

Yes?‑‑‑So it would have gone to the home computer.

*** STEVEN MITCHELL XN MR VAN DE WEIL

PN1248

Okay. Let’s just stick with this for a moment. We can go through the other annexures in a minute. Did you do the test to get a right of entry permit?‑‑‑Yes, I did.

PN1249

Could you tell us how it is that you went about that, sir?‑‑‑On 4 February 2013 I was down in Melbourne.

PN1250

Yes?‑‑‑I proceeded back up to my home that evening, started to do the - went on the computer, started to do the right of entry test. I had a copy or partial copy of the relevant sections of the Fair Work Act.

PN1251

Yes?‑‑‑I opened up the test and did a portion of it and then realised I didn’t have the full contents of the relevant Fair Work Act.

PN1252

Yes?‑‑‑So I decided to go ahead anyway but I thought I was pretty close to the end of the questions. As a result, I failed.

PN1253

Yes?‑‑‑So the next morning I got up and went online and got a printout of the relevant sections of the Fair Work Act.

PN1254

Yes?‑‑‑I read those through and then went back online again to do the test and passed the test.

PN1255

Okay. You remember your score?‑‑‑Not really, no.

PN1256

Okay. Can I take you, sir, to what’s called annexure SM4?‑‑‑Yes.

PN1257

Do you recognise that document?‑‑‑Yes, yes; that’s a copy of what I printed off.

PN1258

Okay, and do you remember what day you printed that off?‑‑‑Yes, 5/2/2013, because it’s actually - - -

PN1259

You’ll see that date at the foot of that document?‑‑‑Yes.

PN1260

Do we also see that it is one of 13 pages?‑‑‑Yes, yes.

*** STEVEN MITCHELL XN MR VAN DE WEIL

PN1261

Now, you were an organiser employed by HSU number one, working with the then secretary, Ms Asmar, and with others; is that right?‑‑‑That is correct, yes.

PN1262

Right. Where did you work from?‑‑‑Basically I stayed up in my region, which is centred around Echuca in the northern part of Victoria along the Murray out as far as Albury, Corryong and down through the alps, down as far as Kilmore. I’d come down to Melbourne probably about - once we got into the system about once every month. For the first month I was back and forward to Melbourne quite often.

PN1263

Okay. Do you remember being told about doing this right of entry test?‑‑‑Yes. We had - during one of the industrial meetings the secretary, Diana Asmar, stood up and said we all had to do a right of entry test.

PN1264

Yes?‑‑‑That it was expected of us and that we could not go on sites until we passed these rights of entry tests and it was our responsibility to do them.

PN1265

At that meeting, did she say anything to you about anyone doing the tests for you?‑‑‑No, definitely not.

PN1266

Did she make any suggestions as to other employees that you should approach to terms of your test?‑‑‑Definitely not.

PN1267

It’s suggested, sir, that there was - you heard the evidence of Ms McIntosh today?‑‑‑Yes.

PN1268

She talked about, “common knowledge.” You were an organiser?‑‑‑That’s correct.

PN1269

You were in the office in Melbourne on frequent occasions?‑‑‑Yes, for the first month or so, yes.

PN1270

Yes. Were you party to any common knowledge of anyone doing the tests for anyone else?‑‑‑No, not at that stage - the first I actually heard of it was when the issue was raised as part of the royal commission. Up until then, I was not aware that anyone had done anyone else’s test.

PN1271

Do you know a Mr Rob McCubbin?‑‑‑Yes, I do.

*** STEVEN MITCHELL XN MR VAN DE WEIL

PN1272

Did you see that gentleman come into court today?‑‑‑Yes, I saw him today.

PN1273

He’s the man that you know is Rob McCubbin?‑‑‑Yes.

PN1274

Did you ever have any discussion with him about right of entry?‑‑‑Had several discussions with him, mostly around that I had to get it done to get on sites.

PN1275

Yes?‑‑‑Also, once I had done the right of entry test and got the certificate of achievement I rang him up to tell him that I had got it.

PN1276

Yes?‑‑‑At that time, he said - because I failed and I explained how I failed and went back and passed it - “So you got the answers?” I said, “Yes.” He said, “Beauty, can you hang on to them for me?” At that stage I thought it was a joke so I didn’t treat it any further but that’s basically the bulk of what we spoke about in regards to right of entry.

PN1277

Just so we tease that out a little bit, did he ask you a question that you provide him with answers?‑‑‑Yes.

PN1278

You never did that?‑‑‑No, I did not, because I thought it was a joke at the time.

PN1279

Now, it’s been raised that there has been some revisiting to your access to the ACTU site for your tests. Did you ever revisit that?‑‑‑Yes, I did.

PN1280

Can you remember when you did that?‑‑‑Not off the top of my head; I’m not sure of the dates but I wanted to get another printout of the certificate of achievement.

PN1281

Yes?‑‑‑I was not able to log back in.

PN1282

Okay. It is specifically suggested from the documentation produced by the ACTU that at 15.18 on 15 February that your site - if I call it that you know what I mean; your particular test site - was accessed at 15.18 - in other words, 18 minutes past three in the afternoon, okay?‑‑‑Yes.

PN1283

Did you access your site at that time?‑‑‑I’ve looked at my diary in regards to that and at that particular time I was either just completing a meeting in Kyabram or I was on the road between Kyabram and Echuca, so it’s highly unlikely that I would have done it.

*** STEVEN MITCHELL XN MR VAN DE WEIL

PN1284

That’s totally consistent with your evidence but I’ll ask you anyway: did anyone ever suggest to you that they should do your tests?‑‑‑No.

PN1285

I’ll tender the statement and the annexures of Mr Mitchell, if I might.

PN1286

THE VICE PRESIDENT: Yes, I’ll admit that statement into evidence, including the annexures, and I’ll mark it exhibit 10 in these proceedings.

EXHIBIT #10 WITNESS STATEMENT OF STEVEN MITCHELL WITH ANNEXURES

PN1287

THE VICE PRESIDENT: Thank you for your evidence, Mr Mitchell; you can step down?‑‑‑Thank you.

<THE WITNESS WITHDREW [3.39 PM]

PN1288

THE VICE PRESIDENT: That appears as far as we can go this week.

PN1289

MR VAN DE WIEL: Unfortunately, yes. In terms of May, we know we’re coming back here before you on 4 May. Are we going to be able to have any time that week?

PN1290

THE VICE PRESIDENT: I also have the 8th, Friday the 8th.

PN1291

MR VAN DE WIEL: Taken?

PN1292

THE VICE PRESIDENT: I have the following Monday the 11th.

PN1293

MR VAN DE WIEL: Can we take the 11th, please?

PN1294

THE VICE PRESIDENT: Yes.

PN1295

MR VAN DE WIEL: Thank you.

PN1296

THE VICE PRESIDENT: We’ll issue a listing for the 11th, add that to the list. On the 4th we’ll proceed with the evidence in the order of the witnesses that was originally proposed for today and tomorrow and it might be convenient to adjourn after the evidence and allow time for the submissions to be made with the benefit of the transcript on the 11th but I’ll leave that to you. I don’t think there’s anyone other than you, Mr Van De Wiel, who will be making submissions. But I can see the sense of adjourning for that week to enable full preparation of the submissions. So we’ll adjourn till 10 am on 4 May.

ADJOURNED UNTIL MONDAY, 4 MAY 2015 [3.41 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

CRAIG FERGUSON MCGREGOR, AFFIRMED............................................ PN30

EXAMINATION-IN-CHIEF BY MR MATTHEWS.......................................... PN30

EXHIBIT #1 STATEMENT OF CRAIG FERGUSON MCGREGOR DATED 18/02/2015 PN44

CROSS-EXAMINATION BY MR VAN DE WIEL........................................... PN46

THE WITNESS WITHDREW............................................................................ PN148

ALEXANDER JOHN LESZCYNSKI, AFFIRMED........................................ PN165

EXAMINATION-IN-CHIEF BY MR MATTHEWS........................................ PN165

EXHIBIT #2 STATEMENT OF ALEXANDER JOHN LESZCYNSKI DATED 06/01/2014................................................................................................................................. PN189

EXHIBIT #3 STATEMENT OF ALEXANDER JOHN LESZCYNSKI DATED 16/09/2014................................................................................................................................. PN199

CROSS-EXAMINATION BY MR VAN DE WIEL......................................... PN201

THE WITNESS WITHDREW............................................................................ PN368

JAYNE CLAIRE GOVAN, AFFIRMED.......................................................... PN418

EXAMINATION-IN-CHIEF............................................................................... PN418

CROSS-EXAMINATION BY MR VAN DE WIEL......................................... PN432

THE WITNESS WITHDREW............................................................................ PN510

JAYNE CLAIRE GOVAN, RECALLED......................................................... PN518

FURTHER EXAMINATION-IN-CHIEF.......................................................... PN518

THE WITNESS WITHDREW............................................................................ PN524

EXHIBIT #4 RELEVANT PAGES OF TRANSCRIPT OF PROCEEDINGS OF ROYAL COMMISSION HEARING.................................................................................. PN531

LEONIE ELIZABETH FLYNN, SWORN........................................................ PN534

EXAMINATION-IN-CHIEF............................................................................... PN534

EXHIBIT #5 STATEMENT OF LEONIE ELIZABETH FLYNN DATED 04/09/2013 PN557

EXHIBIT #6 SUPPLEMENTARY STATEMENT OF LEONIE ELIZABETH FLYNN DATED 11/08/2014............................................................................................................... PN562

CROSS-EXAMINATION BY MR VAN DE WIEL......................................... PN579

EXHIBIT #7 INDUSTRIAL DAY ATTENDANCE RECORD FOR LEONIE ELIZABETH FLYNN................................................................................................................................. PN621

THE WITNESS WITHDREW............................................................................ PN843

SANDRA PORTER, SWORN............................................................................. PN873

EXAMINATION-IN-CHIEF............................................................................... PN873

CROSS-EXAMINATION BY MR CHAMPION.............................................. PN881

THE WITNESS WITHDREW.......................................................................... PN1050

DEIDRE MCINTOSH, SWORN....................................................................... PN1055

EXAMINATION-IN-CHIEF............................................................................. PN1055

EXHIBIT #9 WITNESS STATEMENT WITH ATTACHMENT OF DEIRDRE MCINTOSH............................................................................................................................... PN1062

CROSS-EXAMINATION BY MR CHAMPION............................................ PN1063

THE WITNESS WITHDREW.......................................................................... PN1160

STEVEN MITCHELL, SWORN...................................................................... PN1231

EXAMINATION-IN-CHIEF BY MR VAN DE WEIL.................................. PN1231

EXHIBIT #10 WITNESS STATEMENT OF STEVEN MITCHELL WITH ANNEXURES............................................................................................................................... PN1286

THE WITNESS WITHDREW.......................................................................... PN1287

Fair Work Commission Transcripts

RE2013/426, Transcript of Proceedings [2015] FWCTrans 283 (14 May 2015)