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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051822
VICE PRESIDENT WATSON
RE2013/426
RE2013/583
RE2013/585
RE2014/1870
RE2014/1871
RE2014/1872
RE2014/1874
s.512 - Application for a right of entry permit
Application by Health Services Union-Victorian No. 1 Branch
(RE2013/426 and others)
Melbourne
10.10 AM, MONDAY, 4 MAY 2015
<JAYNE GOVAN, RECALLED [10.10 AM]
CROSS-EXAMINATION BY MR VAN DE WIEL [10.11 AM]
PN1
THE VICE PRESIDENT: Ms Govan, you re in the witness box again. The matter was adjourned while you were being cross-examined on the last occasion to enable you to obtain legal advice. You understand that you re still bound by the oath you gave on the previous occasion?‑‑‑Yes, I do.
PN2
The statement that you provided on the last occasion, are there any changes to that statement that you wish to make?‑‑‑No.
PN3
Thank you. I ll now provide Mr Van de Wiel an opportunity to continue his cross-examination. Mr Van de Wiel.
PN4
MR VAN DE WIEL: Ms Govan, you took employment with Ms Asmar with the HSU and you had an interview and then you were given employment. Do you remember when that was?‑‑‑29 January 2013.
PN5
Then you were before the Becom and you were approved at that stage, or was that a bit later than that?‑‑‑That was a bit later than that.
PN6
You were on your six months probation, was that right?‑‑‑Correct.
PN7
Then on 12 July 2013, you received a letter saying that your employment will cease immediately. Is that right?‑‑‑That s correct.
PN8
Can I just show you that letter for a moment? How did you feel about that letter?‑‑‑Well, I was shocked.
PN9
Yes?‑‑‑I don t wish to go into anything further because that case is still - there s further applications going on and I may incriminate myself by answering questions in regards to my termination.
PN10
Sorry, I don t understand. What are you saying? You don t want to answer any questions in relation to your termination because you might incriminate yourself?‑‑‑My understanding is there s still applications in regards to that case in the Federal Circuit court.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN11
Yes?‑‑‑So until that s all complete, I would rather not answer any questions in regards to that termination.
PN12
THE VICE PRESIDENT: I don t think that s a sound basis to refuse to answer questions about the termination, Ms Govan. I think you should answer questions about that.
PN13
MR VAN DE WIEL: In any event, you got that, you were shocked and you were angry. Is that right?‑‑‑I wouldn t say I was angry on that day, no. Just more shocked.
PN14
You thought it was improper that you had been dismissed?‑‑‑Yes.
PN15
You say that you were not counselled before then about the fact that you had not been working properly?‑‑‑Yes.
PN16
Hadn t been attending to the interests of the members. Hadn t been attending meetings and generally being an inappropriate employee. You say all of that s not true, don t you?‑‑‑I do.
PN17
I suppose having received this letter, you immediately go and see about commencing some action to reinstate yourself, is that right?‑‑‑That s correct.
PN18
What do you do about that?‑‑‑I went and sought legal advice.
PN19
When did you do that?‑‑‑Approximately a week. I can t recall on the time that I sought legal advice in regards.
PN20
Just approximately. I m not concerned about a specific?‑‑‑Approximately one or two weeks.
PN21
One or two weeks, okay. Was that with Mr Addison, was it?‑‑‑It was.
PN22
I don t want to go into what you said to Mr Addison. You were pretty good friends with Mr McCubbin at that stage, were you?‑‑‑Yes.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN23
Mr Addison being diligent and concerned to reinstate you obviously wanted to get the process on as quickly as possible, is that right?‑‑‑Yes, as far as I can recall.
PN24
You had a fairly extensive discussion with Mr McCubbin about the reasons for your dismissal, was that right?‑‑‑I already knew the reasons for dismissal.
PN25
Could you just answer my question please madam. Did you have a fairly extensive discussion with Mr McCubbin about the reasons for your dismissal?‑‑‑Yes.
PN26
Mr McCubbin told you what exactly?‑‑‑I believe I answered this last time I was on the stand.
PN27
Could you just answer it again please?‑‑‑As I say, this case is still open, so I really do not want to answer questions in regards to incriminating myself as Mr McCubbin was a witness at my case.
PN28
Madam can you just tell me what Mr McCubbin told you?‑‑‑
PN29
THE VICE PRESIDENT: Ms Govan, I think there s a sound basis to cross-examine you in relation to the general circumstances of your employment and the termination. I think it should be limited because you have been cross-examined once in the Royal Commission and I ll have regard to that cross-examination but I think you should answer the questions that are asked of you and I think it will be a lot easier and simpler all around. If you have concerns about extended repetition of matters that were raised in the Royal Commission, then if you could raise that with me?‑‑‑It s also, Commissioner, that there s applications still in regards to the Federal Circuit Court, case still open and continuing. So I feel if I answer that I may incriminate or hinder the case that still - - -
PN30
I don t think that s a reason not to answer questions here. You should answer the questions truthfully and as I say, they do have some bearing on your evidence in this matter and if you could answer the questions directly?‑‑‑Yes, Commissioner.
PN31
MR VAN DE WIEL: What did Mr McCubbin tell you?‑‑‑That he had a meeting with Ms Asmar, and Ms Asmar had spoken to him about that I had to be terminated in regards to my political beliefs that were indifferent to hers and that also based on my sexuality because she was under the belief that I was bisexual.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN32
You were pretty keen to get Mr McCubbin to tell Mr Addison about that, weren t you?‑‑‑Well Mr Addison asked me to ask Mr McCubbin if he would be a witness, yes.
PN33
Mr McCubbin immediately went to see Mr Addison, did he?‑‑‑I wouldn t say it was immediately.
PN34
No. Do you know when he did go?‑‑‑No, I can t recall, it s nearly two years ago.
PN35
We know that Mr McCubbin didn t in fact swear an affidavit in relation to this matter until 2014. We know that, don t we? You know that?‑‑‑Yes.
PN36
Do you want to have a look at his affidavit?‑‑‑Yes, please.
PN37
You ve read his affidavit?‑‑‑Yes, a while ago.
PN38
Not suggesting you know it off by heart?‑‑‑Not recently.
PN39
If we go to the last page, it s witnessed by Mr Addison and he affirms it on 12 September 2014. Is that right?‑‑‑Yes, that s correct.
PN40
On any view, you can hardly say that that s a particularly hasty support for you. Is that fair?‑‑‑No, I wouldn t say that.
PN41
It isn t, is it Ms Govan, that this whole affidavit of Mr McCubbins, was something which was generated after September of 2013, is it?‑‑‑No.
PN42
Not some story he tells you then?‑‑‑No, it s not.
PN43
Because what happens is it not, Ms Govan, that you re terminated on 12 July, but you continue to be friends with Mr McCubbin. Isn t that right?‑‑‑Yes that s correct.
PN44
Mr McCubbin has resigned from the union on 12 July, but he still wants to remain involved with the union, doesn t he?‑‑‑No.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN45
Ms Govan, your brother had stood for the position of assistant secretary, is that right?‑‑‑That s correct.
PN46
You yourself harboured political ambitions in terms of standing for the union?‑‑‑Yes.
PN47
Mr McCubbin, in around September, encouraged you in relation to you political ambitions?‑‑‑No.
PN48
You stood for union office at the elections when they were held?‑‑‑Yes I did.
PN49
Prior to that, Mr McCubbin had tried to engineer a situation, had he not, with Mr Eden to call for a general meeting of the union to get rid of Diana Asmar, isn t that right?‑‑‑No, I m not aware of that.
PN50
Not aware of any discussions about that at all?‑‑‑No.
PN51
Not aware of the discussions between Mr McCubbin and Mr Eden or Mr McCubbin and Mr Mitchell in respect of that matter?‑‑‑No.
PN52
How is that you are at Mr McCubbin s house meeting with Ms Flynn on 6 August 2013. How does that come about?‑‑‑Ms Flynn needed some support from all the bullying and harassment that she faced in the workplace, so we were providing her with some support.
PN53
That s a nice statement, but can you tell me please how it is that you managed to be there on 6 August when Ms Flynn happened to be there?‑‑‑I believe I answered this in the Royal Commission.
PN54
You may well, but just please so that we get it clear for today. Why did you go there on 6 August?‑‑‑I just said that I went there to give support to Ms Flynn.
PN55
THE VICE PRESIDENT: I think the question was about how did you come to be there, not why you were there, but did someone contact you and invite you?‑‑‑I don t recall who contacted who. It was a long time ago, I don t recall.
PN56
MR VAN DE WIEL: So you don t know how it is that you get there on 6 August?‑‑‑I do know I drove my vehicle, but I don t recall who made the phone calls.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN57
Ms Flynn tells us that your mother was there as well?‑‑‑Yes, she was.
PN58
You were pretty upset about having been dismissed, is that right?‑‑‑Yes.
PN59
Thought it was totally improper?‑‑‑Yes.
PN60
You d done nothing wrong?‑‑‑Yes.
PN61
Diana Asmar was picking on you for some reason?‑‑‑Yes.
PN62
Ms Flynn took the view that she was the subject of bullying at the union. Is that right?‑‑‑Yes.
PN63
Were you party to this discussion with Mr McCubbin to wind up, my words, to wind up Ms Flynn to get her more agitated by suggesting that her telephone was tapped and there was some black box attached to her motor car? Were you party to some discussion about that?‑‑‑I was party to the conversation, but it was not to wind up Ms Flynn at all.
PN64
This woman comes to this meeting and she is obviously very - - -
PN65
THE VICE PRESIDENT: Which woman?
PN66
MR VAN DE WIEL: Ms Flynn. Ms Flynn comes to this meeting. She is obviously very distressed?‑‑‑Yes.
PN67
You know that she has health issues, don t you?‑‑‑I m not her medical practitioner, so I m not saying - - -
PN68
I m not suggesting that, but you knew that she had health issues?‑‑‑I knew that she was distressed, yes.
PN69
At that meeting, does she tell you that she d been told by Peggy Lee about Peggy Lee being asked to do tests for people?‑‑‑No.
PN70
She doesn t tell you that?‑‑‑No.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN71
Does she tell you that Peggy Lee did tests for people?‑‑‑No.
PN72
So rights of entry were not discussed on 6 August, you say?‑‑‑That s correct.
PN73
No discussion about that at all. When do you next see Ms Flynn?‑‑‑I don t think it was until the Royal Commission.
PN74
That s not true. Think about it. There s been that many hearings and cases, I can t - - -
PN75
Forget about the hearings, I m talking about meetings with Ms Flynn in 2013. We know Ms Flynn rings you on 4 September. We know that?‑‑‑Yes.
PN76
She is at Fair Work and she rings you and she has a conversation with you by way of text message?‑‑‑Yes, that is correct.
PN77
Let me suggest this. Prior to those messages, 4 September, you had a meeting with Ms Flynn. I m not suggesting it was a deliberate set up meeting. You had some sort of function. Ms Flynn has described it as a wine and cheese I think she said, or wine. There was some evening where there was wine?‑‑‑Yes, I do recall that.
PN78
You remember that now?‑‑‑Yes, I do, sorry.
PN79
Can you tell us, in relation to 4 September, how long before that date it was?‑‑‑I can t recall the dates.
PN80
No, I m not interested in the dates, just approximately how long it was?‑‑‑It would have been at least a few weeks, at least.
PN81
So we ve got 6 August and we ve got 4 September and between those dates, approximately when is it?‑‑‑I don t recall, so I m not going to sit here and make up a date when I don t recall.
PN82
You don t recall it?‑‑‑
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN83
I recall having wine and cheese with Ms Flynn, but I don t recall the exact date. Pardon?
PN84
Where was it?‑‑‑It was at my house.
PN85
Yes, and how many people were there, approximately?‑‑‑Just myself, my son, Ms Flynn and my brother.
PN86
David?‑‑‑Daniel.
PN87
Daniel, sorry Daniel?‑‑‑No that s okay.
PN88
Please forgive me, I don t mean to be offensive to him?‑‑‑Was he the one who had stood for the position of assistant secretary and then he had left the union?‑‑‑That s correct.
PN89
Did he tell you why he left the union?‑‑‑He wasn t happy with the way it was being governed.
PN90
Did he leave the union because he got too many calls being directed to him?‑‑‑Yes, his workload was ridiculous.
PN91
It was ridiculous. His workload was just ridiculous and he couldn t cope with it, and so he resigned. Isn t that right?‑‑‑That s correct.
PN92
Yes, I understand. So at that wine and cheese evening, or function or meeting at your house?‑‑‑It wasn t a meeting.
PN93
I m not suggesting it was a formal meeting. How did you get to invite Ms Flynn there? Why did she come there? She was no friend of yours, was she?‑‑‑No, but as I said, we were providing support for each other, because we d both faced bullying and harassment in the workplace.
PN94
It s not that you were seeking to get some basis to - some information to try to undermine Ms Asmar or Ms Kitching?‑‑‑No.
PN95
Purely altruistic reasons?‑‑‑Yes.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN96
At this particular meeting, rights of entry discussed?‑‑‑No.
PN97
Not at all? No discussion at all?‑‑‑Not that I recall. It was more of a social event.
PN98
I m not suggesting it was anything other that, but did you madam, suggest to Ms Flynn at that meeting, that Ms Kitching or other people, I m not suggesting you even named them, but rights of entry had been done by people other than the applicants?‑‑‑No.
PN99
Never? So there s no discussion at all on 6 August about rights of entry? No discussions at the wine evening?‑‑‑No.
PN100
Your position is, is it, that on 4 September, the question that Ms Flynn text you, was totally out of the blue?‑‑‑Yes.
PN101
Had she told you at any of these meetings that she had already been to Fair Work?‑‑‑No.
PN102
Let s see if I can assist you?‑‑‑She s told us she s had meetings with a person called Ms O Brien, okay? At Fair Work. That she s submitted a letter to Ms O Brien setting out a series of concerns that she has about the operation of HSU or HWU, it doesn t matter which. Did she tell you that? At either on 6 August or at the wine?‑‑‑I honestly can t recall the whole - - -
PN103
Did she show you any correspondence?‑‑‑No.
PN104
She has never raised with you, prior to either of those dates, anything to do with anybody doing rights of entry? Is that right?‑‑‑That s correct.
PN105
You ve never suggested to her that Kimberly Kitching had been involved in doing rights of entry for anybody? Is that right?‑‑‑No, but it was common - - -
PN106
Please just answer my question?‑‑‑Can you repeat the question again.
PN107
Had you ever told Ms Flynn that Ms Kimberly Kitching was involved in doing rights of entry for any person?‑‑‑I m sure I did during the course of employment with HSU.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN108
Did you? When did you do that?‑‑‑I don t recall. It was common knowledge around the office.
PN109
Forget about the common knowledge for a moment and answer my question?‑‑‑Everybody spoke about - I m answering your question in that everybody spoke about Kimberly Kitching doing the right of entries within the office. So I don t recall whether I ve spoken to Leanne Flynn about it within the office or I haven t. I honestly don t recall.
PN110
Ms Flynn s role was different from the other organisers in terms of people being on the shop floor. She was the assistant secretary and someone who was highly connected with the running of the union, yes?‑‑‑Yes.
PN111
She was a person who was assiduous in taking notes about what she perceived to be happening there. Yes?‑‑‑I don t know - - -
PN112
Well you saw her, walking around with her notepad?‑‑‑No, I didn t, and lots of people walk around the office with notepads, so it s not something to be standing out. We re all walking around with note pads.
PN113
Is your evidence this? You have no recollection of telling Ms Flynn about Kimberly Kitching doing rights of entry for anybody, but it may be that it s been picked up as a result of some common knowledge?‑‑‑Well, as I said, it was discussed - - -
PN114
Is that your evidence?‑‑‑I was saying that it was discussed around the office. I cannot recall whether Ms Flynn, I spoke to Ms Flynn about it. It was common knowledge around the office and commonly discussed.
PN115
But you certainly have no recollection of ever discussing it with Ms Flynn?‑‑‑That s correct.
PN116
Ms Flynn texts you on 4 September, Hi Jayne, who did your right of entry? Was it Kimberly? What are you looking at?‑‑‑My statement.
PN117
Just put it aside for a moment.
PN118
THE VICE PRESIDENT: Do you recall the text you received from Ms Flynn?‑‑‑Yes I do.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN119
Do you recall the wording?‑‑‑I don t recall the wording, no.
PN120
MR VAN DE WIEL: It s not contained in your statement, is it?‑‑‑That s what I was looking for.
PN121
It s not in your statement?‑‑‑It s not in my statement?
PN122
Please accept it from me, I am reading from the statement of Ms Flynn, and I m more than happy for you to have that in front of you. Have we got a spare copy, your Honour, because - otherwise Mr Champion can provide his. He doesn t need to have a copy.
PN123
THE VICE PRESIDENT: It s the first statement, not the supplementary, you re talking about?
PN124
MR VAN DE WIEL: It s the first statement and it s paragraph 123. Do you want to give me the bundle and I ll find it for you straight away?‑‑‑I ve got it here.
PN125
You ve got it there? You got paragraph 123?‑‑‑I do.
PN126
Good. We can take it that this is accurate, because indeed, this exchange occurs in the presence of Mr Enright and Mr Enright is the person who records the statement, you understand?‑‑‑Yes.
PN127
Also Ms Flynn has looked at this and she confirmed that this is the text that occurred between her and you. I call them texts, is that what you call them?‑‑‑Yes.
PN128
Okay, texts. Just before I take you to the precise wording, you didn t know that Ms Flynn was going to Fair Work on 4 September, or any other day?‑‑‑No, I didn t, no.
PN129
This comes out of the blue for you, is that right?‑‑‑Yes.
PN130
It s not as if before these text messages, you received any phone call from anybody to say, listen I m going to go to Fair Work, I may need to speak to you when I m there, nothing like that?‑‑‑No. I was actually at Altona market by the beach when this text come.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN131
Ms Flynn text this to you. Hi Jayne, who did your right of entry ? Let s just stop there. Why does she ask you this? You never told her that you hadn t done your own right of entry, had you?‑‑‑As I said, I can t recall whether I had or not.
PN132
No, you told me specifically there had been no discussion with her directly about it?‑‑‑No, not directly, no.
PN133
There was no discussion on 6 August, no discussion at the wine and cheese night?‑‑‑Yes.
PN134
4 September, Ms Flynn says to you, Who did your rights of entry? The only reason that she would ask that question, presumably, was because she had been told by you, that you hadn t done it?‑‑‑No.
PN135
No. All right, Was it Kimberly? Of all the people in the world, why would she pick on Kimberly unless there d been some prior discussion about Kimberly?‑‑‑I can t answer that, that s coming from Leanne Flynn, I can t answer that.
PN136
Not suggesting you re a mind reader. Ms Flynn says I m at Fair Work . You understood FWC meant Fair Work, didn t you?‑‑‑Yes.
PN137
Do you know whose permit test she sat and then she uses her nickname, "Lones". So you knew immediately who it was?‑‑‑(No audible reply)
PN138
Your response She sat mine, Nicks .
PN139
THE VICE PRESIDENT: That s a yes?‑‑‑Yes, sorry.
PN140
MR VAN DE WIEL: Yes, Nicks . That s all right. If you don t say anything then unfortunately it s not picked up on the transcript that later when we want to look at what you said, it s important we know what you said. She sat mine ?‑‑‑Yes.
PN141
Nicks yes?‑‑‑Yes.
PN142
And Nick is who?‑‑‑Nick Katsis.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN143
That s the man sitting here in the blue shirt?‑‑‑That s correct.
PN144
Dean, yes?‑‑‑Yes.
PN145
David Eden, yes?‑‑‑Yes.
PN146
Not sure about others, is that right?‑‑‑That s right.
PN147
Your position was that you weren t sure about who else that she did tests for. Is that right?‑‑‑That s correct.
PN148
That never gets any better than that, does it. You don t know who she sat the test for?‑‑‑I know who she sat.
PN149
You ve named them?‑‑‑I didn t know about Cameron Green (indistinct) no. The other new - - -
PN150
Lee, I think and yes, it was Kimberly. I think she did Rolphs, meaning you don t know, but you think she probably did, is that it?‑‑‑Yes, that s correct.
PN151
Let s move on. Ms Flynn Thanks Jayne. Do you know when? What about Diana's? Then we have your response. Turn over the next page if you would. She would of done Diana's again meaning, you re not sure?‑‑‑No, I know she did Diana's.
PN152
Well, why don t you say, she did Diana's?‑‑‑As I said, I was at the market, I wasn t concentrating and thinking I m going to be - - -
PN153
Text is more letters, the idea of the text is to keep it short, not long?‑‑‑I was at the market, at the beach.
PN154
We re not writing essays here, not political statements. She did Diana's, would have been written, if indeed if she had and if you knew that she had, wouldn t it?‑‑‑I know she did.
PN155
Forget about what you know, what you told Ms Flynn is that you weren t sure. That you were making a guess, isn t that right?‑‑‑I wouldn t say it was a guess, no.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN156
It was when we started. I m going home to look on my right of entry. How would your right of entry help with that question?‑‑‑I was looking at the date on my right of entry.
PN157
The date on your right of entry is what?‑‑‑12 March.
PN158
That s when you swore that you had had the training and did the tests, is that right?‑‑‑That s correct, as I recall.
PN159
You swore twice, didn t you?‑‑‑Yes.
PN160
So which is the 12 March? Is it the first one or the second one that you swore?‑‑‑I can t recall.
PN161
You swore in terms of an application that was going to be lodged for you either before 12 March or after 12 March, you swore falsely and you d also sworn falsely on 12 March. Is that correct?‑‑‑I m not answering that on grounds of self-incrimination.
PN162
Ms Flynn says We ll catch you on lunch break and yes that would be great if you can check the date . Then you reply later 12 March was the application date redated 2013582 permit number . Is that right? You give the precise details later?‑‑‑Yes.
PN163
Do you remember when you did that?‑‑‑When I got home from being at the market.
PN164
You had been involved with union matters prior to this time, had you not, madam?‑‑‑Yes I had.
PN165
You were a delegate for the HSU in 2004?‑‑‑Yes.
PN166
In 2005, you were a full time organiser?‑‑‑That s correct.
PN167
As a full time organiser you had a right of entry permit?‑‑‑That s correct.
PN168
Did you sit that test?‑‑‑There was no test required to be sat at that time.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN169
Then what happens is after this exchange between yourself and Ms Flynn, did you meet with Ms Flynn?‑‑‑I can t recall the dates, as I said, it s - - -
PN170
She said she wanted to catch up with you for lunch?‑‑‑We ve never had lunch.
PN171
Never had lunch with each other?‑‑‑No.
PN172
You didn t catch up with her?‑‑‑No.
PN173
Did you ever see a copy of her statement that she d made to Mr Enright?‑‑‑No.
PN174
Never saw that?‑‑‑Not until the Royal Commission when all the hearings commenced.
PN175
Before the Royal Commission, you saw it, didn t you?‑‑‑In the folder we received from the Fair Work Commission, yes.
PN176
You ve seen it?‑‑‑After all our statements had been made.
PN177
I take it you ve been good friends with Mr McCubbin. You would have made contact with Mr McCubbin and said Lones, or Ms Flynn contacted me from Fair Work and I ve told her about various people that Kimberly had done tests for?‑‑‑I recall contacting Mr McCubbin in regards to that.
PN178
Is there any reason why you wouldn t?‑‑‑I don t recall. It s a long time ago, I don t recall every conversation, every telephone call that I have made.
PN179
Of course you don t. You made a statement to Mr Enright on 16 September?‑‑‑Yes.
PN180
What I m asking you, very precisely, is between 4 September and 16 September, did you talk to Mr McCubbin about the conversation, text or otherwise, that you had with Ms Flynn about Ms Kitching doing right of entry tests?‑‑‑As I ve stated, I would have spoken to Mr McCubbin during that time, because we are friends, but I don t recall if we actually had that conversation.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN181
It was a pretty red hot topic, wasn t it, because you were concerned about your false dismissal, you wanted Mr McCubbin to support you, and you were a friend, and I suggest a political ally. All of those things, are they all true?‑‑‑No.
PN182
Are you not a political ally of Mr McCubbins?‑‑‑ I m friends with Mr McCubbin.
PN183
Mr McCubbin, did he speak with you about this rights of entry?‑‑‑As I said, I cannot recall. We speak about many things, not just the health services union.
PN184
I appreciate you might, but I m asking you about this specific topic?‑‑‑And I m replying, I do not recall.
PN185
You don t know?‑‑‑No.
PN186
And it s not that you re just trying to cover up?‑‑‑No, it s not. I genuinely don t recall, it s been a long time and there ve been many hearings in between.
PN187
What happens is Mr McCubbin goes to the Fair Work Commission, doesn t he?‑‑‑Pardon, I was disturbed by the whispering over in the corner.
PN188
I m sorry?‑‑‑Sorry, I was disturbed by the whispering that was going on over in the background.
PN189
I m sorry, I didn t know of any whispering. Mr McCubbin goes to the Fair Work people prior to 13 September, doesn t he?‑‑‑I m not sure when Mr McCubbin went to the Fair Work Commission.
PN190
Before he signed his statement, did he show his statement to you?‑‑‑No, he did not.
PN191
Not at all?‑‑‑No.
PN192
You see, his statement is dated the 13th but he sent it back to the Fair Work Commission on 16th September and you went to see the Fair Work Commission, I take it, from the date of your statement 13th September, that s the date that you went there and you made your statement, is that right?‑‑‑That s correct.
PN193
Was it all done on the same day?‑‑‑Yes, as far as I can recall.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN194
It wasn t that part of it was done and then you had to come back?‑‑‑No.
PN195
It wasn t as if part of it was done and you wanted to think about whether you signed it or not, it was all done and dusted on the same day, is that right?‑‑‑As far as I recall yes, because I was in here for a few hours.
PN196
In terms of that statement, did Mr Enright tell you what he was interested in talking to you about?‑‑‑No.
PN197
You don t just go into a topic cold, and you don t dictate your statement, there must have been some conversation. Could you tell us what the conversation was?‑‑‑I was asked to come into the Fair Work Commission to provide information in relation to a number of issues in regards to the Health Services Union, Victoria Branch No. 1 and I agreed to come in.
PN198
Did you ask what it is that they wanted to ask you questions about?‑‑‑I don t recall the conversation on the telephone, I m sorry, I came in and did my statement.
PN199
You don t remember?‑‑‑No, I don t.
PN200
Before you went to see Mr Enright, did you speak with Mr McCubbin?‑‑‑I would have spoken to Mr McCubbin, because we speak on a regular basis.
PN201
About the fact that you re going to Fair Work about the union that both of you had been involved in and that you were pretty enthusiastic about?‑‑‑I wouldn t say I was enthusiastic about it.
PN202
You go to work at the union and you tell us that you were employed on 29 January and then later, you are confirmed in your employment by Becom, is that right?‑‑‑We were introduced to Becom.
PN203
Presumably they voted about whether they should retain you?‑‑‑I wouldn t know, I wasn t present.
PN204
You don t know, doesn t matter?‑‑‑If they were running a vote or not, I wasn t present.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN205
I don t want to get into that, waste time. In 2013, there were what you call industrial days for the organisers and people employed in the office, is that right?‑‑‑That s correct.
PN206
This basically was days upon which there d be a general discussion about issues of concern, matters to look out for and how you should conduct yourself professionally in terms of your role, right?‑‑‑It was about the industrial issues at hand.
PN207
Let me suggest this to you, industrial days in 2013 were on 25th, and we re talking about the early part of 2013, were 25 February and 18 March. They were the industrial days, weren t they?‑‑‑I don t recall the exact dates.
PN208
At that meeting, in February and in March, it was stressed that it was important for the organisers to have rights of entry, isn t that right?‑‑‑Yes.
PN209
That the contact persons in terms of making sure that things were done and were lodged were either Peggy Lee or Kimberly Kitching?‑‑‑No, it was Peggy Lee - - -
PN210
Can you just answer my question? It was stressed that you should provide the details to either Ms Kitching or Ms Lee?‑‑‑Yes.
PN211
Ms Lee was absent in the month of February. She left on leave for Hong Kong on 13 February and she was away until 6 March. We can take it, can we that on 25 February you were told that details in relation to your registration and results should be provided to Kimberly Kitching. Isn t that right?‑‑‑We were told to provide them to Kimberly Kitching as she will do our right of entry test in regard, because our workload was so high, yes that s correct.
PN212
Let me suggest to you that that s an outright lie, but we ll move on. You knew about right of entry tests, didn t you? From your experience as a union organiser?‑‑‑As I stated in 2006, it was not a requirement to sit a test for your right of entry. The state secretary - - -
PN213
I didn t ask you about the test. You knew about the importance of the right of entry?‑‑‑Yes.
PN214
Indeed, prior to doing your test, you had done some research, isn t that right?‑‑‑I did not do my test.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN215
You did do research in relation to your test, didn t you?‑‑‑Yes.
PN216
When did you do the research?‑‑‑I can t recall a date. I think we went over this at the Royal Commission. I recall being asked all this at the Royal Commission and it being in the transcript.
PN217
When did you do the research madam?‑‑‑I cannot recall the date of when I did the research, but it s on the Fair Work Commission site for all the public can look up the rights of entry.
PN218
In order to get to the research, you had to use your ACTU password to get online to be able to do the research. Is that right?‑‑‑No. Public can access that information on the Fair Work Commission website.
PN219
They may well be able to, but how did you do it?‑‑‑As I just stated, I went on the Fair Work Commission website as any public person can and get the general information.
PN220
So you got a copy of the legislation in relation to the sections dealing with 506 onwards, approximately?‑‑‑I don t know what sections you re referring to. I got information from the Fair Work Commission website in regards to right of entry.
PN221
What was the nature of the information that you got?‑‑‑It was - I don t recall exactly what the information was, it was general information in regards to what the right of entry can and cannot be used for and the legislation around that.
PN222
Did you distribute that to members?‑‑‑To members of the union?
PN223
Yes. When did you distribute it?‑‑‑I wouldn t distribute that to members of the union. Why would I?
PN224
Did you distribute it to the organisers of the union?‑‑‑Yes, I gave it to Dean McIntosh and Lee Atkinson.
PN225
Dean McIntosh wasn t employed in February?‑‑‑I didn t say I did it in February.
PN226
When did you do this research?‑‑‑I told you I cannot recall the exact date.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN227
I see. It s not as if you d gone onto the website to do the ACTU test, had a look at the test and then got the information and printed it out, is it?‑‑‑No.
PN228
You see, we ve heard evidence that Mr Hassan, Wael Hassan, had a series of answers. You understand that?‑‑‑Yes, but Wael Hassan was employed after I received my right of entry.
PN229
You were not the person who gave him the answers, were you?‑‑‑No.
PN230
You don t know when you did the research. You could have done the research in February?‑‑‑It could have been March.
PN231
I appreciate that, but my question was, it could have been February?‑‑‑It could have been, but I m - - -
PN232
The time that you were in the office on 15 February, certainly coincides with the times of the test recorded on the ACTU results? Isn t that right?‑‑‑I m not sure.
PN233
Excuse me, you ve read the Royal Commission documents. You ve read your statements, you ve read all the annexures and I take it you ve read the report of Mr Enright. Haven t you? You ve read all that, haven t you?‑‑‑Yes, and the interim report of the Royal Commission.
PN234
Mr Enright makes it perfectly plain, in terms of a timetable, that on the morning of 15th until well into lunch time, you were in the office?‑‑‑Yes.
PN235
He can verify that because of the phone calls, records and also emails that you had posted. Isn t that right?‑‑‑That s correct.
PN236
As at the time that the tests are recorded on the printout from the ACTU, accepting that they re right for the moment, you were certainly in the office and in a position to do your test?‑‑‑I did not do my test.
PN237
Not a particularly hard test, is it?‑‑‑I don t know, I don t even know what it looks like. I did not do it.
PN238
Then you re happy to answer that question?‑‑‑Yes. I did not do my right of entry test.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN239
You say in your statement to Mr Enright, I can say it with confidence that the following people did not do their tests . Is that right?‑‑‑Yes.
PN240
Nick Katsis?‑‑‑Yes.
PN241
He didn t do his test, and he told you he didn t do his tests, is that right?‑‑‑That s correct.
PN242
When did he tell you that?‑‑‑I can t recall the dates and times.
PN243
There was pressure for people to do the tests. They all had to do their tests as quickly as possible, because the rights of entry were of significance, weren t they?‑‑‑Yes, because we were being asked by the employers about our right of entries, that means we could not go on worksites, without them.
PN244
On 15 February, did you know you had a right of entry?‑‑‑No.
PN245
You didn t know that?‑‑‑I didn t have a right of entry on 15 February.
PN246
No, couldn t have had one, because you didn t do the test. Is that right?‑‑‑
PN247
It s not as if you did the test, knew you d passed the test?‑‑‑No, I did not do my test.
PN248
Now Mr Sheriff. Mr Sheriff never told you that he didn t do his test, did he?‑‑‑Yes he did.
PN249
Let me suggest this to you. At the Royal Commission, evidence you re so keen not to go over, your evidence was Mr Sheriff didn t say whether he d done the test or not, he just said he d got a hundred per cent?‑‑‑Yes, he did say he got a hundred per cent, yes.
PN250
That s right. Never told you that he didn t do his test, did he? Did he Ms Govan? You can t remember, no?‑‑‑No, I don t.
PN251
THE VICE PRESIDENT: I think you should allow her to answer the question.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN252
MR VAN DE WIEL: I m sorry. Forgive me.
PN253
Have you finished the answer to the question?‑‑‑I was just saying that there has been so many hearings, there s been a lot of bullying and harassment of witnesses going on. Intimidation of witnesses.
PN254
THE VICE PRESIDENT: I don t think you need to give an explanation. The question was do you recall Mr Sheriff telling you that he did not do the test?‑‑‑I don t recall.
PN255
MR VAN DE WIEL: The evidence, let me suggest to you at the Royal Commission is that he never said he didn t do the test, all he told you was that he got a hundred per cent?‑‑‑Isn t that right? You re agreeing with me?‑‑‑I won t agree to anything.
PN256
You won t agree with anything?‑‑‑Unless I see the evidence that you re going on. I refuse to answer questions in regards to self-incrimination.
PN257
THE VICE PRESIDENT: If you don t recall or you don t know, do you say you don t know?‑‑‑I don t recall, and I ve said that so many times.
PN258
MR VAN DE WIEL: I m sorry?‑‑‑I said I ve said I don t recall so many times.
PN259
You don t recall Mr Sheriff saying to you - but you said you didn t want to answer on the basis of self-incrimination. Does that mean you don t want to answer my question, or what?‑‑‑I don t want to answer your question.
PN260
You don t want to answer my question. Do you want to answer my question in relation to Diana Asmar, because we re looking at paragraph 17 of your statement?‑‑‑
PN261
THE VICE PRESIDENT: Well perhaps you should ask the question to see.
PN262
MR VAN DE WIEL: I can say with confidence the following people did not do their tests, and your confidence is based on what, madam?‑‑‑Well Diana Asmar told me she did not do her test, Kimberly Kitching did it for her.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN263
When did that happen?‑‑‑It was just after I commenced employment. I don t remember the exact date.
PN264
A location would help?‑‑‑Yes, it was in her office.
PN265
I see. Was there anybody else there?‑‑‑No.
PN266
I see. Apropos of what did she say that? What s the reason for her telling you this?‑‑‑She was saying that Kimberly Kitching was doing the right of entries for people and that she d done hers and she got a high percentage. It was 99, 100 percent.
PN267
Did you ever discuss with Kimberly Kitching that she was going to do your test?‑‑‑I was directed by the state secretary to forward on, once I received the logon details to Kimberly Kitching and she shall do my test.
PN268
When was this?‑‑‑I don t recall dates, sorry.
PN269
Mr Eden. You have confidence that he didn t do his test?‑‑‑Yes I do.
PN270
Mr Eden tell you he didn t do his test?‑‑‑I don t recall.
PN271
You don t know?‑‑‑No.
PN272
So what s your confidence based on?‑‑‑Because it was known, and everybody did not do their own entry tests.
PN273
Everybody did not do their own entry tests?‑‑‑Not everybody but - - -
PN274
Mr McCubbin?‑‑‑I m not answering for Mr McCubbin.
PN275
Well, you say, I say with confidence that the following people didn t do their own tests . I m asking you on what basis you say Mr McCubbin didn t do his test?‑‑‑Mr McCubbin wasn t employed at the time of his test and he wasn t in the office when his test was sat.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN276
I m not worried about that aspect of it. When you say to Mr Enright or the person who took your statement, and I take it was Mr Enright, wasn t it, yes?‑‑‑Yes.
PN277
You say I say with confidence the following people didn t do their tests . I m asking you on what basis do you say Mr McCubbin didn t do his test?‑‑‑Mr McCubbin told me he did not do his test.
PN278
When did he tell you that?‑‑‑I can t recall dates.
PN279
You see, because we know that on 4 September you told Ms Flynn that you thought that she d done Mr McCubbin s test, that Kimberly had done Mr McCubbin s test, didn t you?‑‑‑
PN280
When you talked to Mr Enright, it becomes a positive. I can say with confidence. Now what s changed?‑‑‑Nothing s changed.
PN281
Have you had a discussion with Mr McCubbin?‑‑‑No. I talk to Mr McCubbin on a regular basis.
PN282
Of course you do.
PN283
THE VICE PRESIDENT: I think the question was did you have a discussion with Mr McCubbin about Mr McCubbin doing his right of entry test?‑‑‑No.
PN284
MR VAN DE WIEL: Let s move on to paragraph 18 of your statement. The reason that I can say with confidence is because Dean, Nick and Sasha started at the time that I did and we had spoken about it amongst ourselves. Is that right?‑‑‑That s correct.
PN285
It was common knowledge. Not something that was hidden from anybody. Is that right?‑‑‑That s correct.
PN286
You know Mr Katsis has submitted a statement to the Royal Commission and given oath that he did his own test. You know that, don t you?‑‑‑Yes.
PN287
You know Mr Sheriff has done the same. He swore that he did his own test?‑‑‑No, I m not aware of that.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN288
I m sorry, you re not aware? Weren t you at the Royal - - -?‑‑‑Mr Dean Sheriff was not at the Royal Commission.
PN289
Mr Sasha - - -? You know Sasha, I m sorry I m not going to say his name, because I ll either make a fool of myself or I ll muck it up and then you won t know who I m talk about. But Sasha? Sorry?‑‑‑No I understand, his surname I can t say it either.
PN290
You can t say it either. It doesn t matter. You know he submitted a statement to the Royal Commission, swore he did his own test?‑‑‑Yes.
PN291
What you say in this statement to Mr Enright and before us is that Diana actually boasted that Kimberly got around about 99 percent or 100. Is that right?‑‑‑That s correct.
PN292
It s Diana Asmar who is boasting about this. Is that right?‑‑‑Yes.
PN293
Not Ms Kitching, its Ms Asmar?‑‑‑Yes.
PN294
At the Royal Commission, did you make a statement madam, at paragraph 129 Ms Kitching said the words to the effect, I have done Diana s tests and I have received 99 percent for that . Did you say that to the Royal Commission, madam?‑‑‑ I m not answering that on grounds of self-incrimination. I don t have that evidence in front of me and I don t recall.
PN295
THE VICE PRESIDENT: If you don t recall, you say you don t recall.
PN296
MR VAN DE WIEL: Have a look at this, paragraph 129. Just have a look at paragraph 129, don t worry about the rest of it?‑‑‑Could we please get people to stop whispering.
PN297
THE VICE PRESIDENT: I think the talking in the gallery is distracting to the witness. You might wish to go to the other part of the court room, but I think it s best if you don t talk amongst yourselves at this time.
PN298
?‑‑‑So, sorry Mr Van de Wiel?
PN299
MR VAN DE WIEL: Have you read paragraph 129 of your statement?‑‑‑Yes.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN300
Can you return it to me please? You told the Royal Commission, did you not, madam, that it was Kimberly Kitching who said that she d got 100 percent?‑‑‑It was Diana and Kimberly. Diana was the first one.
PN301
Both of them said it?‑‑‑Diana was the first one that spoke to me about it, yes.
PN302
I see. What, separately they tell you this?‑‑‑Yes.
PN303
When you spoke with Mr Enright, you certainly would have told him that, if that had happened, wouldn t you? Would you not madam?‑‑‑I would have if I recalled it at the time.
PN304
Mr Enright s a very experienced investigator and he takes his time and puts you at ease and let s you talk and then asks you some general questions and then goes back to the particular and goes over it again and then he types it and then he asks if it s correct, doesn t he. Isn t that the way he operates?‑‑‑No. I sat down and spoke to Mr Enright about what I believed and he typed it.
PN305
Yes, he typed it and then he read to you what he typed?‑‑‑Yes.
PN306
Then he asked you if you wanted to say anything more about the topic?‑‑‑That s correct.
PN307
And he certainly was not putting you under any pressure in terms of time or content, is that right?‑‑‑That s correct.
PN308
You never tell Mr Enright about Kimberly saying that, do you?‑‑‑No.
PN309
No. Let me suggest to you that neither of them happened?‑‑‑I suggest that s incorrect because they did happen.
PN310
Was it Amy Southwell who took your statement for the Royal Commission?‑‑‑Yes.
PN311
When she did that, did you have a copy of your own statement in front of you?
PN312
THE VICE PRESIDENT: Do you mean to the Royal Commission, or it s - - -
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN313
MR VAN DE WIEL: When you spoke to Amy Southwell?‑‑‑I don t recall. I guess I did. I was in Mr Addison s office at the time on a teleconference with Amy Southwell.
PN314
Did you speak to Ms Southwell on the phone?‑‑‑Yes, it was a teleconference.
PN315
You had a telephone conference and what I m asking you is did you have a copy of the statement that you ve made to Mr Enright in front of you when you spoke to Ms Southwell?‑‑‑I m saying I don t recall but I assume so.
PN316
THE VICE PRESIDENT: Mr Van de Wiel, you re well over the estimate for cross-examination of this witness.
PN317
MR VAN DE WIEL: 10-12 minutes. I won t be much longer, I promise. I will be finished within the next 15 minutes. I don t think Ms Lee will take as long as we thought.
PN318
THE VICE PRESIDENT: Please proceed.
PN319
MR VAN DE WIEL: Just going on, I did speak to Dee Macintosh who s another organiser , this is paragraph 21 we re talking about. Dee had to sit her own test , is that right?‑‑‑Yes.
PN320
Dee being a less experienced employee, did anyone offer to go to speak to Kimberly about the test for Ms Macintosh?‑‑‑I don t recall. I didn t but I don t know if anybody else did. I can only speak on my behalf.
PN321
22, It s my understanding Dee assisted Tim Rowley . Where did you get that from?‑‑‑Because Dee was - I had a - Dee had a conversation at the time when she sat her own - that Tim couldn t log onto the computer, he had difficulty with logging onto the computer.
PN322
That s not doing his permit is it?‑‑‑I didn t say he did ‑ she did do his permit.
PN323
What you say is I was also of the understanding that Dee assisted Tim to do his permits , not to log on?‑‑‑Well assist him is to log on to do your permit.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN324
Logging on has got nothing to do with assisting him in doing his permit, is it?‑‑‑Well it is because if he can t log on he can t do his permit so Dee assisted him logging on so he could do his permit.
PN325
Could you tell me precisely how it is that you know that you have passed your test? I know you say I didn t do my test. Somebody else had my details ?‑‑‑That s correct.
PN326
How do you know that they have asked the test in your name?‑‑‑Well I don t until we got the certificate that I had the right of entry.
PN327
You didn t know that at all?‑‑‑No.
PN328
On 15 February you certainly didn t know that you had supposedly sat a test, passed the test?‑‑‑No, no.
PN329
Is that correct?‑‑‑That s correct.
PN330
Yes and no-one emails you with any results to say this is what s happened and you ve passed?‑‑‑No, no.
PN331
No? Madam, on 15 February you were working out of the office in South Melbourne, is that right?‑‑‑For the morning, yes.
PN332
Yes, organising your affairs?‑‑‑Yes.
PN333
Yes and do you know a person called Hutchison?‑‑‑Ruth Hutchison?
PN334
Correct?‑‑‑Yes.
PN335
You know this person?‑‑‑She s HR at St Vincents Hospital.
PN336
Yes. You communicate with her on 15 February?‑‑‑I don t recall. When I was terminated, my computer, everything was taken from me so I have no record.
PN337
THE VICE PRESIDENT: If you don t recall, simply say you don t recall.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN338
MR VAN DE WIEL: Okay, I understand that. But, Ms Hutchison, Mrs Hutchison, I don t care, Ms Hutchison let s call her, you never lied to that woman did you? Never lied to her?‑‑‑I don t recall, no.
PN339
There d be no reason why you should lie to her is there?‑‑‑No.
PN340
No. You wouldn t lie to her and say I have a right of entry under section 512 of the Fair Work Act ? You wouldn t say that to her on 15 February would you?‑‑‑No.
PN341
No, you wouldn t. Have a look at this email of yours. Your email you sent 15 February, 11.22, that right?‑‑‑That s correct.
PN342
Yes. What you say, quite unambiguously, is that you ve been issued with an entry permit pursuant to section 512 of the Fair Work Act and you give notice that you propose to enter, is that right?‑‑‑That s correct.
PN343
Yes. You didn t have the certificate, did you?‑‑‑No.
PN344
No. You didn t get the certificate until after March?‑‑‑That s correct.
PN345
But on 15 February you had sat your test, hadn t you?‑‑‑No.
PN346
You had got a pass mark, hadn t you?‑‑‑No.
PN347
That s why you tell Ms Hutchison, erroneously or otherwise, that you do have the right of entry permit?‑‑‑No, this was a standard email that was sent to everybody to send to HR managers and you just filled it the work site that you were entering and your name and it was a standard letter that went out, email that went out, used by a number of organisers.
PN348
Forget about whether it s a standard letter sent out by a number of organisers, you sent that out on 15 February at 11.22 to Ms Hutchison, a person that you never lie to, to say that you have been issued with an entry permit and that s a lie, isn t it?‑‑‑I was instructed by Dean Sheriff that this - he was the team leader at the time, that this is the letter we sent out, send out to HR managers at work sites so I did that.
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN349
You went to Mr Sheriff with this email before you pushed send and say This is what I m going to send to Ms Hutchison , is that right?‑‑‑As I - - -
PN350
Is that right?‑‑‑No, I didn t go to - - -
PN351
No?‑‑‑No.
PN352
No. You sent out this email specifically to Ms Hutchison in which you say you have a right of entry on the 15th at 11.22, let me suggest you having sat the test around about 9.30 in the morning and having passed that morning?‑‑‑I did not seek my right of entry test.
PN353
I see. Yes, thank you.
THE VICE PRESIDENT: Ms Govan, I propose to mark your statement of 16 September exhibit 11 in these proceedings.
EXHIBIT #11 STATEMENT OF JAYNE GOVAN DATED 16/09
PN355
THE VICE PRESIDENT: Mr Van de Wiel, did you wish to tender any of the documents you ve put in front of this witness?
PN356
MR VAN DE WIEL: I want to put in that email that I put, which is to Ms Hutchison.
THE VICE PRESIDENT: I mark the email dated 15 February 2013 from Ms Govan to Ms Hutchison exhibit 12.
EXHIBIT #12 EMAIL FROM JAYNE GOVAN TO MS HUTCHISON DATED 15/02/2013
PN358
THE VICE PRESIDENT: There s also a letter of termination that you referred the witness to. Did you wish to tender that?
PN359
MR VAN DE WIEL: Yes, I do.
THE VICE PRESIDENT: I ll mark that letter of 12 July 2013 exhibit 13.
EXHIBIT #13 TERMINATION LETTER DATED 12/07/2013
*** JAYNE GOVAN XXN MR VAN DE WIEL
PN361
MR VAN DE WIEL: Also the affidavit of Mr McCubbin.
THE VICE PRESIDENT: I ll mark that affidavit exhibit 14.
EXHIBIT #14 AFFIDAVIT OF MR McCUBBIN
PN363
MR VAN DE WIEL: Thank you.
PN364
THE VICE PRESIDENT: Thank you for your evidence, Ms Govan?‑‑‑Thank you.
You can step down, you re excused from attendance.
<THE WITNESS WITHDREW [11.22 AM]
PN366
Are we ready to go with Ms Lee?
PN367
MR VAN DE WIEL: Yes, I am.
THE VICE PRESIDENT: We ll bring her in.
<PEGGY LEE, SWORN [11.22 AM]
EXAMINATION-IN-CHIEF [11.23 AM]
PN369
THE VICE PRESIDENT: Ms Lee, you ve made a statement to Mr Enright, which I don t think bears a date, but it s 92 paragraphs long on 16 typed pages?‑‑‑Yes.
PN370
Do you have a copy of that statement with you?‑‑‑Yes.
PN371
Are there any changes you wish to make to that statement?‑‑‑Yes. There are two mistakes in my statement. The first one is paragraph 61. Paragraph two in the middle, He had resigned from a branch . I believe that s he was terminate(sic) by the branch, and there is further information provided by my supplementary witness statement which talks about the termination of Mr Alex Lasinki s employment.
*** PEGGY LEE XN
PN372
I see?‑‑‑And - - -
PN373
That s a supplementary with the statement you made to the Royal Commission in September 2014?‑‑‑Correct. Yes.
PN374
Very well. We should understand that paragraph in conjunction with the explanation you ve now given?‑‑‑Yes.
PN375
Thank you?‑‑‑And other correction is in paragraph 79, in the last line about the date, 21 March. It should be 26 March.
PN376
Yes?‑‑‑Yes, that s all.
PN377
Okay and on the last occasion your evidence was deferred after you sought to have legal advice because of the caution I provided to you about your rights to not answer questions arising from the law against privilege against self-incrimination?‑‑‑Correct, yes.
PN378
Are the contents of the statement as you ve amended that today true and correct?‑‑‑Yes.
PN379
I ll mark that statement with the attachments, there are nine attachments to that statement, Ms Lee?‑‑‑Correct.
I ll mark that statement with the attachments exhibit 15 in these proceedings.
EXHIBIT #15 STATEMENT OF PEGGY LEE
PN381
THE VICE PRESIDENT: You ve referred to the supplementary witness statement, that s the statement dated 5 September 2014?‑‑‑Yes.
PN382
There s some numbering issue I think but the numbering goes to paragraph 51?‑‑‑Mm hm.
PN383
Are there any changes you wish to make to that supplementary statement?‑‑‑No.
PN384
Is the statement true and correct?‑‑‑Correct.
*** PEGGY LEE XN
I ll mark that exhibit 16 in these proceedings.
EXHIBIT #16 SUPPLEMENTARY STATEMENT OF PEGGY LEE DATED 05/09/2014
THE VICE PRESIDENT: Mr Van de Wiel will have some questions. I ve already made it clear that there should not be repetition of matters that have been dealt with in cross-examination before the Royal Commission. Mr Van de Wiel.
CROSS-EXAMINATION BY MR VAN DE WIEL [11.27 AM]
PN387
MR VAN DE WIEL: Ms Lee, you were employed in the union by which people when you first started for the union?‑‑‑I was employed by the administrator and his name is Sean Wine.
PN388
Sorry?‑‑‑His name is Sean Wine.
PN389
On what basis were you employed?‑‑‑I applied for the job. I went to - I have phone interviews and subsequently they provide me with an appointment.
PN390
What was your visa position?‑‑‑My recent position?
PN391
Your visa, visa, position?‑‑‑Visa. I am now an Australian citizen.
PN392
No, I asked you what was your visa position, what was your visa position then?‑‑‑At that time when I applied for the job?
PN393
Yes?‑‑‑I was on a working holiday visa.
PN394
The election is held in December 2012. Ms Asmar is elected to be the state secretary and a number of other people come to work in the union, isn t that right?‑‑‑Yes.
PN395
Yes, and were you stressful about whether or not you would be continued in your position?‑‑‑Of course.
PN396
Yes, and when you re stressful how do you react?‑‑‑You mean in terms of my behaviour?
*** PEGGY LEE XXN MR VAN DE WIEL
PN397
In terms of your functioning. Do you become nervous and agitated? Do you find it difficult to cope with situations?‑‑‑Yes, obviously I was really nervous about my appointment that time and I tried to continue to do my job, keep my attitude, yes, just - - -
PN398
You had a meeting with Ms Asmar when she started to do the administration. She came into the office, she had a conversation with a variety of employees?‑‑‑Yes.
PN399
You were one of them?‑‑‑Yes.
PN400
She said that basically Can you work with me? ?‑‑‑Yes.
PN401
I m new people. If it s a difficulty, tell me otherwise you can continue working here , is that right?‑‑‑I can t remember the exact wording but - - -
PN402
No. Is it words to that effect?‑‑‑I can only remember I said there I just want to do my job . I want to work with her.
PN403
You wanted to work with her, okay. Then what happens is you were then employed as an industrial assistant, is that right?‑‑‑I was still the industrial assistant before the election.
PN404
You ve made this statement to Mr Enright. Do you remember what day you made this statement?‑‑‑I sign off this statement on 15 January.
PN405
2014? Would have to be wouldn t it?‑‑‑Yes.
PN406
A matter of logic, yes?‑‑‑Yes?
PN407
How many times did you see Mr Enright?‑‑‑Once or twice.
PN408
Let s see if we understand the chronology. You know from your discussions with Ms Flynn that she had started to speak with Fair Work prior to 31 July, isn t that right?‑‑‑Yes.
*** PEGGY LEE XXN MR VAN DE WIEL
PN409
You knew that she had written a letter in relation to the Fair Work question, forget about any other question, we re only concerned about Fair Work, do you understand?‑‑‑Yes.
PN410
She had already written a letter to Ms O Brien prior to 31 July, is that right?‑‑‑Yes.
PN411
You know that Ms Flynn had indicated, in the course of correspondence to Fair Work, that you had told her two things. One, that you had been asked by Ms Asmar to do rights of entry tests for people and that you had indicated to Ms Asmar that you wouldn t do it. You told Ms Flynn that?‑‑‑Yes, well can I claim my privilege against self‑incrimination?
PN412
THE VICE PRESIDENT: I don t know the basis for that in relation to this question. The question is what you told Ms Flynn. Perhaps Mr Van de Wiel can repeat the question.
PN413
MR VAN DE WIEL: Ms Flynn has told us in conversations with her in terms of what was happening at the union you told her that Ms Asmar had asked you if you could do the rights of entry tests for people other than yourself and you told her that you couldn t do it. Do you say that you did or you didn t tell that to Ms Flynn?‑‑‑In relation to a direction given by Ms Asmar, I - - -
PN414
Could you just answer my question please.
PN415
THE VICE PRESIDENT: The question was what you said to Ms Flynn. Did you say, as Mr Van de Wiel has described, the comments to the effect of what has been described to Ms Flynn?‑‑‑Yes, I told Ms Flynn, yes.
PN416
MR VAN DE WIEL: Can we try and keep this short because we don t have a lot of time, okay?‑‑‑Yes, of course.
PN417
What Ms Flynn also tells us is that on a subsequent occasion, she s talking about what s happening about the union and within the union and she can remember this because you re going over the Westgate Bridge if that s any importance to you, okay, and you say to her, to the best of her recollection, that you were worried about the security of your job so you completed two tests, one at home and the other one the next day and it s a reference to right of entry tests. You understand what I m suggesting to you?‑‑‑Mm hm.
*** PEGGY LEE XXN MR VAN DE WIEL
PN418
That s what Ms Flynn tells us that you told her, yes?‑‑‑Yes.
PN419
You did tell her that?‑‑‑Yes.
PN420
By the time you get to the Fair Work hearing, you also know that Ms Flynn has written a letter in which she has named you as having given her that information and you re concerned about the fact that your name has been mentioned in the course of correspondence?‑‑‑Yes.
PN421
You ask her to remove your name?‑‑‑Yes.
PN422
You ask her to remove your name, let me suggest to you, because you had exaggerated the position?‑‑‑Nothing like that. I was really concerned about - yes, I was concerned about my safety and security of my job. Because I was really concerned that I will be targeted because of providing information to Ms Flynn in relation to the right of entry issue. Because I witness what happened to previous employees in relation to their employment so I was really worried that I would be targeted, I would be treated differently because of providing information to Ms Flynn.
PN423
But by 4 February, you already had permanent residency in Australia didn t you?‑‑‑I wouldn t say that it was a - - -
PN424
Just answer my question please?‑‑‑I couldn t - - -
PN425
Did you have permanent residency in Australia granted to you as a result of the visa applications by 4 February? Yes or no?
PN426
THE VICE PRESIDENT: If you don t know you can say I don t know . That s also - - -?‑‑‑I don t know.
PN427
MR VAN DE WIEL: Well that s not true. You ve seen the correspondence from the Immigration Department. I showed it to you at the Royal Commission?‑‑‑To my understanding, it is a permanent visa under the employer s sponsorship scheme.
PN428
You ve got a permanent visa?‑‑‑I can t say that it s a permanent visa. It s a permanent - - -
*** PEGGY LEE XXN MR VAN DE WIEL
PN429
By February, you had already indicated to your friend, Ms de Pietro, that you were looking for other employment, isn t that right?‑‑‑Your Honour, because I believe that he got the information from a private conversation with my colleague.
PN430
Yes?‑‑‑Yes.
PN431
That s exactly where I did get it from?‑‑‑Yes.
PN432
Can you answer my question please. Did you indicate to your colleague that you were looking for other employment by 4 February?‑‑‑Your Honour, because I indicated the Royal Commission before that because they - - -
PN433
Could you please answer my question, madam?‑‑‑log into my Facebook account and got information from a private conversation with my colleague. Otherwise they wouldn t have know(sic) this conversation and this information.
PN434
THE VICE PRESIDENT: Ms Lee, it may or may not be relevant to the matters I need to look at but I think I ll allow the question and if you could answer if you could.
PN435
MR VAN DE WIEL: Did you tell your colleague that you intended to look for other employment?‑‑‑Yes.
PN436
In the course of conversation with Ms de Pietro did you also describe Ms Asmar as the red headed monster?‑‑‑I can t remember.
PN437
Have a look at this printout from your Facebook. 4 February at 8.26?‑‑‑Your Honour, can I object referring to that document because I don t believe that this information s obtained properly? It s without my permission.
PN438
Can you please answer my question, madam.
PN439
THE VICE PRESIDENT: What do you say to that, Mr Van de Wiel?
PN440
MR VAN DE WIEL: Well - - -
PN441
THE VICE PRESIDENT: The witness is saying that this is private information that has been obtained - - -
*** PEGGY LEE XXN MR VAN DE WIEL
PN442
MR VAN DE WIEL: It s not - - -
PN443
THE VICE PRESIDENT: - - - and shouldn t be permitted to be referred to.
PN444
MR VAN DE WIEL: With the greatest of respect, it was never asserted anywhere that this was obtained illegally or improperly?‑‑‑We assert that at the Royal Commission and we object the tendering of this information at the Royal Commission and the Commissioner say that like this information shouldn t be admitted as evidence and we put in a third statement explaining why we object the tendering of this information. If your Honour want me to provide you with the first statement, I can.
PN445
All that, I accept, is true and we have no ruling from the Commissioner about it and I say with the greatest of respect pursuant to section 138 it s not improperly or illegally obtained. Pursuant to 135 or 137, there is no matter of discretion which arises which allows you to exclude this material. And I say with the greatest of respect, it is relevant to the position of this witness in terms of these proceedings?‑‑‑But the Commissioner state that it is not relevant.
PN446
Excuse me, would you mind.
PN447
THE VICE PRESIDENT: I m going to allow the witness to advance her position so I can have regard to it, Mr Van de Wiel.
PN448
MR VAN DE WIEL: All right.
PN449
THE VICE PRESIDENT: Yes, Ms Lee?‑‑‑Yes. Because the Commissioner at the time said that it is not relevant to the issue at hand so that s why this evidence was not referred to and it was not admitted as evidence.
PN450
I consider these matters are capable of being relevant to the matters that I need to determine.
PN451
MR VAN DE WIEL: Thank you.
PN452
THE VICE PRESIDENT: The cross-examination, Mr Van de Wiel, is won t repeat what has been dealt with in the Royal Commission and is not going to be lengthy but I think if ‑ ‑ ‑
*** PEGGY LEE XXN MR VAN DE WIEL
PN453
MR VAN DE WIEL: I will try and keep it as brief as possible but I m faced with a barrage of speeches.
PN454
THE VICE PRESIDENT: Yes. Ms Lee, I m going to require you to answer the questions in relation to these matters. You don t need to explain your position in every respect, although I will give you an opportunity to say anything further arising from the questions you re asked. If you could simply answer the question that is asked then I think we ll be a lot briefer so it s not so much thinking what might be behind the question but listen to the question and give the answer to the best of your knowledge to the question that s asked?‑‑‑Okay, yes.
PN455
MR VAN DE WIEL: Do you accept from me that you did tell Ms de Pietro that you were starting to look for another job in March? It s in there, you ve got a copy of it, 2 April, 4 February?‑‑‑Which page?
PN456
At, if you go to the time, 8.25?‑‑‑Yes.
PN457
At 8.24 - - -?‑‑‑Yes.
PN458
- - - Ms de Pietro asked you had your visa cleared and you say Yes and you ve got all those indications indicating that you re very happy about that and you ll start looking for a job in March?‑‑‑Yes.
PN459
Towards the bottom of the page, the red headed monster, that s Ms Asmar isn t it that you refer to there?‑‑‑Yes.
PN460
Can we go please to 4 April at 8.37 please, a few pages on. You re talking about, and you can scan the page for me before, but you re talking about various staff that were employed at the union and some of the people who were finishing up and then at 8.35 on 4 February, in the middle of that paragraph, They re going to train the delegates to do the job . Is that right?‑‑‑Yes.
PN461
You see that?‑‑‑Yes.
PN462
Then the question is that you raise to Ms de Pietro Do you know Daniel Govan? He resigned one week after he started as an organiser ?‑‑‑Yes.
*** PEGGY LEE XXN MR VAN DE WIEL
PN463
Then Ms de Pietro makes an answer to you that I m really not interested in but what you say is We forwarded all members calls to him. He was overwhelmed . What do those initials at the end of that mean? LOLLLL, what does that mean?‑‑‑Is lots of laughter.
PN464
Lots of laughter?‑‑‑Yes.
PN465
What happens is Mr Govan, Daniel Govan, who comes to be employed at the union, what you do is you forwarded calls to him so he s overwhelmed so he resigns. Is that what happens?‑‑‑He - - -
PN466
Is that what s contained here in this statement of yours, with lots of laughter?
PN467
THE VICE PRESIDENT: You asking what happened or what s in the statement?
PN468
MR VAN DE WIEL: What s in the statement. In this statement, that is described isn t it?‑‑‑Yes, it is what is described.
PN469
You go on, you say I was giving all organising stuff to him to do as well , lots of laughter. Is that right?‑‑‑Yes.
PN470
He couldn t handle it ?‑‑‑It was in the statement.
PN471
Sorry?‑‑‑Yes, it is in here, yes.
PN472
It is in there isn t it?‑‑‑Yes.
PN473
If we can go to the top of the next page He couldn t handle it and what s that Wa ha ha ha mean? Is that more laughter?‑‑‑It is what it is. It is in the statement, yes.
PN474
Yes, it is but does it indicate laughter? You were laughing about the fact that you had destroyed this man s career by overwhelming him with work, isn t that right?‑‑‑I can t say I destroyed his career. Can I explain what happened, or?
PN475
No.
*** PEGGY LEE XXN MR VAN DE WIEL
PN476
THE VICE PRESIDENT: At the end - well I ll give you the opportunity now. If you want to say anything in relation to this question, you can?‑‑‑Okay, thank you. Because he was the organiser and the call centre - we didn t have a call centre at that time so my job, at that time as a industrial assistant, was to refer all the calls which were supposed to the call centre to the relevant organisers just because the area Mr Govan was looking after was a really big area so when I got all the calls which are relevant to those area, I had to refer those calls to him. Just because the volume was so huge at that time, to my understanding he just couldn t handle the workload so that s why he chose to resign. That s it, yes.
PN477
Thank you.
PN478
MR VAN DE WIEL: Why are you laughing? On the email, why are you laughing, or you call them emails? What do you call this, this correspondence on Facebook? I m not familiar with it. What do you call it?‑‑‑Sorry?
PN479
What do you call this correspondence that you have with Ms de Pietro? Is that an email or what is it?‑‑‑What correspondence?
PN480
This correspondence here that we re looking at?‑‑‑It s Facebook conversation.
PN481
All right, it s Facebook conversation, thank you. Now I know what you call it. All right. Ms de Pietro is a friend of yours who had previously worked at the HSU, is that right?‑‑‑Correct.
PN482
She d left?‑‑‑Yes.
PN483
Because of political differences?‑‑‑I don t know why she left.
PN484
She didn t tell you?‑‑‑No.
PN485
The next one we go to 2 April, 8.40, Peggy Lee, Dean, I take it this should be Dean Sheriff, you ve hit the wrong key is that right?‑‑‑Yes.
PN486
It s Dean Sheriff, absolute loser. Jane Govan, bitch. Lee from Queensland, Rob, pre-organiser, Sasha from Melbourne Health, Nick, Steven and Mitch, sorry, Steven Mitch, presumably that s Steven Mitchell is it?‑‑‑Yes.
PN487
Did you think getting rid of Mr Govan was a political act within the union?‑‑‑Can you repeat your question.
*** PEGGY LEE XXN MR VAN DE WIEL
PN488
Did you think getting rid of Mr Govan was a political act within the union?‑‑‑I can t comment on that. I don t know anything.
PN489
Why did you do it?‑‑‑I didn t do it.
PN490
Yes, you did. You told us just before, you said, and here in the Facebook, the call centre had gone so you sent all the calls to him.
PN491
THE VICE PRESIDENT: You asking why forwarded all the members calls to him, is that what you re asking?
PN492
MR VAN DE WIEL: Yes, that s right. Why did you do it?‑‑‑It also direction from the management it is my job to forward the calls to him.
PN493
But you knew that there was too many calls going through to him didn t you?‑‑‑That is a workload management. It s not part of my job.
PN494
It s not your job to do that so you don t say to anybody Look, there s just too much coming. You ve got to do something about it . Don t do anything like that?‑‑‑The issue should be raised by the organiser not me.
PN495
Because it s not your job?‑‑‑I was the industrial assistant.
PN496
As the industrial assistant, you have a role in terms of organising the position of people s work, have you not?‑‑‑I was just referring all relevant matters like according to the work sites to the organisers. I don t think I m managing any work. I just referring matters.
PN497
We go on please at 8.50, please. You re talking about Diana, is that right?‑‑‑8.50?
PN498
Yes, or 8.49 if you like. You talk about the fact, don t you, at 8.51 Diana seriously got good connection , is that right?‑‑‑Yes.
PN499
Is that the way you normally speak English? Diana seriously got really good connection ?‑‑‑I think when - - -
*** PEGGY LEE XXN MR VAN DE WIEL
PN500
I m not trying to be critical of you. I m asking you if that is the way that you normally would write that in English?
PN501
THE VICE PRESIDENT: Write where? In a letter or in a Facebook or speaking?
PN502
MR VAN DE WIEL: In a letter or a conversation. Would you express yourself in that way?‑‑‑In formal correspondence?
PN503
Informal, informal correspondence?‑‑‑I think I would take different writing style in formal and informal correspondence.
PN504
You see culturally people express themselves quite differently in the Australian dialogue, don t they, to formal English?‑‑‑Yes.
PN505
Have there been times, madam, when you have misunderstood what people have said to you because they use a form of expression quite informally that you ve misunderstood?‑‑‑It could happen on some occasions.
PN506
If we go onto the next page at 8.52, I don t mean Marco doesn t have connection but Diana really have people who are experienced in campaign. Get good people to do campaign. It doesn t matter, she doesn t know how to run a union and can t find good organisers laugh out loud or lots of laughter, is that right?‑‑‑Mm hm.
PN507
Why were you ridiculing Ms Asmar at that stage?‑‑‑Why?
PN508
Yes, why?‑‑‑Somehow I believe that she did employ good and experienced people to run the campaign for her. However, in terms of the qualification and at what quality of the organisers I would make some criticism of this.
PN509
And you laugh about it. Is that right?‑‑‑I think it s just an expression in informal correspondence.
PN510
An expression of ridicule of Ms Asmar, is that right?‑‑‑Yes.
PN511
Can we move on, madam, to 8.46, sorry 16 April at 8.01 when Ms de Pietro asks you three comments How are you? Still at HSU . Yes, but I m looking for a job. I don t want to stay there anymore. I have has(sic) enough. Chrissie is gone . Who s Chrissie?‑‑‑She used to work at the HSU.
*** PEGGY LEE XXN MR VAN DE WIEL
PN512
But by 16 April you d had enough and you wanted to go and work somewhere else, is that right?‑‑‑I had that intention at that time.
PN513
Sorry?‑‑‑I had that intention at that time.
PN514
Did you do anything about it?‑‑‑Sorry?
PN515
Did you do anything about it?‑‑‑No.
PN516
Let s go back to conversation that you had with Mr Enright before you make this statement. How is it you get to be at the Fair Work Commission?‑‑‑I was contacted by Mr Enright in relation - - -
PN517
Mr Enright?‑‑‑Yes, in relation to the right of entry issue.
PN518
How does he make contact with you? Does he write to you or does he ring you?‑‑‑By phone.
PN519
By phone?‑‑‑Yes.
PN520
I take it Ms Flynn had your telephone number?‑‑‑Yes.
PN521
Did Ms Flynn tell you, prior to Mr Enright speaking with you, that she had made a statement to Mr Enright about the rights of entry, among other things?‑‑‑Yes.
PN522
Did she tell you that she had not mentioned your name?‑‑‑I can t remember. I just - yes, because I raised - sorry, I don t - that s fine, yes. I can t remember.
PN523
You can t remember?‑‑‑No.
PN524
But you know that she had mentioned the two conversations that you had had with her in which you d indicated those matters to you that I asked you about before. You knew that, didn t you?‑‑‑Mm hm.
PN525
When Mr Enright spoke to you, you were a bit worried about what you d done. Isn t that right?‑‑‑Yes.
*** PEGGY LEE XXN MR VAN DE WIEL
PN526
Did you tell Mr Enright Before I speak to you, I want to speak to a lawyer ?‑‑‑No.
PN527
I understand , this is paragraph four of your statement, in the middle of the statement, 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 the Fair Work Act to require information from me it would have resulted in the same outcome , is that right?‑‑‑Mm hm.
PN528
What did you understand that the outcome would be?‑‑‑I was just concerned about whether I would be, first of all, targeted by the - - -
PN529
You d be what?‑‑‑Be targeted by other people because of the information I provided and also whether I would be liable for any criminal charge, or any charges, under the law.
PN530
Did you say I don t want to answer your questions, Mr Enright ?‑‑‑I raised my concern.
PN531
What did Mr Enright say to you about you being charged with any offences under the law?‑‑‑He provide me with a statement stating that I do not breach any law or statute. Yes, that was a statement provided by Mr Enright.
PN532
If you provided a statement to Mr Enright you would not, by disclosing information to him, be breaching any law, is that what you understood it to be?‑‑‑Can you repeat the question.
PN533
Did you believe, as a result of what Mr Enright said to you, that by telling him what happened, you would not be breaching any laws?‑‑‑Yes.
PN534
That the information you provided to him about breaching the laws would not be the basis of any prosecution?‑‑‑Yes.
PN535
Did you understand that?‑‑‑Yes.
PN536
As far as you were concerned that s what Mr Enright was saying to you?‑‑‑Yes and also I provided my statement to my lawyer to check it before I submit it to the Commission.
*** PEGGY LEE XXN MR VAN DE WIEL
PN537
Which written document did you get from Mr Enright?‑‑‑It is an email provided by him.
PN538
You got a copy of it?‑‑‑No, I don t have it in front of me.
PN539
Who did you give it to?‑‑‑I gave it to my lawyer.
PN540
Who was your lawyer?‑‑‑Your Honour, do I need to disclose who - - -
PN541
THE VICE PRESIDENT: Yes, you answer that question. You needn t say what your lawyer told you but you need to answer the question who the lawyer was?‑‑‑Okay. I got legal advice from my lawyer. His name is Sam. He gave me written advice as to the same and the protection I have at that time.
PN542
MR VAN DE WIEL: Sam who?‑‑‑I forgot his surname.
PN543
You don t know his surname. See your statement is witnessed by somebody called Rebecca Jane French, right. You see the stamp on the back of your statement?‑‑‑Yes.
PN544
That s not the lawyer you spoke to?‑‑‑No.
PN545
The person you spoke to is a male called Sam?‑‑‑Yes.
PN546
When did you speak to him, just so that I have an idea who he is? Did you speak to him in the same office as Ms French or did you go to another office? Was he a barrister or was he a solicitor, that s what I m asking you?‑‑‑He is a partner of the law firm M&K Lawyers.
PN547
Of who?‑‑‑M&K Lawyers.
PN548
M&K Lawyers. Mr Champion suggests his name is Eichenbaum, is that right?‑‑‑No.
PN549
Not him?‑‑‑I need to double check that. I can t confirm at this stage.
*** PEGGY LEE XXN MR VAN DE WIEL
PN550
You don t remember?‑‑‑Yes, I just - - -
PN551
You remember Sam and that s it?‑‑‑Yes.
PN552
They tell you it s all right to make the statement because you won t be breaching any laws, is that right?‑‑‑Correct.
PN553
Let s go through your role as the industrial assistant for a moment. Your role as the industrial assistant was to assist people with the right of entry application, is that right?‑‑‑Mm hm.
PN554
In order to do that, you are responsible for the administration of registering them with the ACTU, is that right?‑‑‑Yes.
PN555
To do the course?‑‑‑Yes.
PN556
After they ve done the course, your role is to facilitate the registration with the Fair Work Commission?‑‑‑Yes.
PN557
When you made the statement to Mr Enright, did he show you a copy of a statement by Ms Asmar?‑‑‑No.
PN558
I want you to go to paragraph 16 for a moment. In the middle of the paragraph, and I ll read it to you, It has been explained to me that Ms Asmar has suggested that I told her that the previous leadership had allowed organisers taking right of entry tests to have a list of answers for the tests . Mr Enright told you that, is that right?‑‑‑Yes.
PN559
Did he show you the statement?‑‑‑No.
PN560
He read it to you?‑‑‑I can t remember whether he has read it to me.
PN561
Let s move on. Diana told me I was to be the person responsible for the administrative process involving the collation of the forms and the information , that s true?‑‑‑Yes.
*** PEGGY LEE XXN MR VAN DE WIEL
PN562
Have you read these paragraphs, by the way, because I m running out of time and I don t want to make his Honour angry with me?‑‑‑No, I verbally talked to Chris Enright and then he typed up the statement for me.
PN563
Yes, I understand that and you spoke to him, presumably, before you spoke Mr Enright before you spoke to Sam and then you went back and you spoke to Mr Enright again?‑‑‑Yes.
PN564
On the first occasion, did you make a statement?‑‑‑When I talked to Mr Enright?
PN565
Yes?‑‑‑No.
PN566
How many times did Mr Enright actually produce a statement for you?‑‑‑That s the only statement.
PN567
On only one occasion?‑‑‑Yes.
PN568
THE VICE PRESIDENT: You mentioned earlier there was an email. Is that different to this statement?‑‑‑Because I ‑ after we drafted the statement and then I was really concerned about the - like the possible legal action against me so that s why he provide me with a statement stating that I do not breach any law and actually he provide it to my lawyer and then my lawyer took that into account and also provide me with legal advice so then, yes.
PN569
I see.
PN570
MR VAN DE WIEL: All right. Anyway, paragraph 17 is correct? Paragraph 18 is correct is it? After Diana instructed me to be responsible for the right of entry process, I commenced having a range of conversations with the organisers about the right of entry process and commenced obtaining and collating the forms required for Diana and the organisers to enroll in the course . That s all true?‑‑‑Yes.
PN571
I take it you can t remember precisely who you enrolled but if I suggest to you a series of names you d probably remember, Mr Katsis, Ms Govan, Ms McCubbin, Mr Eden, Mr Roe, Mr Atkinson and you know the group of people I m talking about?‑‑‑Yes.
PN572
You communicated with all of them and you got their details and enrolled them, is that right?‑‑‑Yes.
*** PEGGY LEE XXN MR VAN DE WIEL
PN573
When you enrolled them, the details of the enrolment would have come to you and then you would pass that on back to the applicants, is that right?‑‑‑Yes.
PN574
At all times, you had the details of their applications, isn t that right?‑‑‑Yes.
PN575
Let s go to paragraph 23. In paragraph 23 you speak of an industrial meeting. Is that different from an industrial day?‑‑‑The same.
PN576
It s the same?‑‑‑Yes.
PN577
Let me suggest this to you, in 2013 the industrial days were 25 February and 18 March. You understand?‑‑‑Yes.
PN578
There wasn t one in January because it was all new, everything had to be organised, people employed, the administration and so on. The first one 25 February, next one 18 March, okay?‑‑‑Okay, yes. I - yes.
PN579
You accept that?‑‑‑I can t remember the date but because we have meeting from time to time, maybe I was wrong calling it industrial day so that s why at a time this day I m going to call it industrial meeting because we have meeting ‑ ‑ ‑
PN580
That s why I asked you is that different from an industrial day and you said no, it s an industrial day. Now you say is it different or is it not different?‑‑‑Okay. It is different.
PN581
Which one? It is different?‑‑‑It is different, yes.
PN582
Are you saying it s different because you can t remember the dates?‑‑‑Because you just remind me because industrial day is a whole day meeting whereas industrial meeting is like once every two weeks or four weeks just organisers got together to talk about industrial issues, yes.
PN583
24, I had a range of conversations various organisers and advised them that application had been made to enroll and I told the various organisers that they would then have time to access the course online and complete the required test in their own time . 25, I advised the organisers that the test was very easy and I assured each of them that they would be able to do it , is that right?‑‑‑Yes.
*** PEGGY LEE XXN MR VAN DE WIEL
PN584
You told them all that?‑‑‑Yes.
PN585
Had you ever done the test?‑‑‑Can I not to answer because of self-incrimination?
PN586
THE VICE PRESIDENT: I won t require her to answer that.
PN587
MR VAN DE WIEL: Let s get to that straight away because we may as well save time on it. You did the test for Mr Eden and for Mr Roe didn t you?‑‑‑Can I claim my self privilege.
PN588
THE VICE PRESIDENT: Yes. You needn t answer that question.
PN589
MR VAN DE WIEL: You don t want to answer that question?‑‑‑I don t want to.
PN590
I understand and I understand you don t want to answer because you might incriminate yourself, is that it? Is that the reason why you object to answering the question?‑‑‑Yes.
PN591
I won t ask you any more questions about that. Apart from the matters that you don t want to answer any questions about Mr Roe and Mr Eden, was there any occasion, save and apart from that, that you had ever inspected the test?‑‑‑No.
PN592
No?‑‑‑No.
PN593
Why is it that you tell the organisers that it s very easy? How did you know that? Is that something that you d been told?‑‑‑Yes, because - - -
PN594
You must have been told that by someone.
PN595
THE VICE PRESIDENT: I think you should allow the witness to answer the question.
PN596
MR VAN DE WIEL: Sorry. Sorry, I m just conscious of the time. I can see the clock and I can see you and - - -
*** PEGGY LEE XXN MR VAN DE WIEL
PN597
THE VICE PRESIDENT: The witness is obviously seeking to answer the questions truthfully and taking her time to recall and you should give her a chance to answer.
PN598
MR VAN DE WIEL: Okay.
PN599
THE VICE PRESIDENT: You might need to re - - -
PN600
MR VAN DE WIEL: It s because somebody had told you?‑‑‑Mm.
PN601
Was that person Ms Asmar?‑‑‑No.
PN602
Who was it?‑‑‑Previous employees.
PN603
Previous employees?‑‑‑Yes.
PN604
Previous employees of the union of which Ms Asmar was the secretary or the union prior to that?‑‑‑Prior to that.
PN605
Ms Asmar was concerned in January, wasn t she, that the various organisers have their right of entry tests done so that they can do their jobs?‑‑‑Yes.
PN606
Because without the right of entry, an organiser can t be fully functional, correct?‑‑‑Correct.
PN607
You understood that?‑‑‑Yes.
PN608
Then what happens is a couple of weeks, this is paragraph 28, A couple of weeks went by. I asked Diana what s happened to the right of entry applications? and you said that you were waiting, you hadn t got the tests results, is that right?‑‑‑Correct.
PN609
Then Diana, according to you, asked the organisers to forward the emails that they d received from the ACTU to Kimberly?‑‑‑Yes.
PN610
Is that right?‑‑‑Correct.
*** PEGGY LEE XXN MR VAN DE WIEL
PN611
Because you had been unsuccessful in terms of persuading the organisers to actually get their tests done so she asked Kimberly to do it, is that right?‑‑‑No. I won t say it s because of my persuasion.
PN612
I m not saying it s a failure on your part. You had been unsuccessful so she gives the job to Kimberly?‑‑‑I don t know. I don t think it s my responsibility. The organiser has to do the test.
PN613
I didn t say the organiser didn t have to do the test. The administrative aspect and chasing up the organisers is something that was passed on to Kimberly. That s right isn t it? Let s go through the chronology before you answer my question.
PN614
THE VICE PRESIDENT: I think you ve asked the question and the witness is thinking about her answer and I d like you to give her the opportunity to answer it?‑‑‑Thank you. I could only remember that Ms Asmar required the organisers to forward their emails to Kimberly. That s all I remember.
PN615
MR VAN DE WIEL: 13 February you go on leave?‑‑‑Yes.
PN616
In terms of this request to Kimberly, let me suggest it was around about the time that you were about to leave?‑‑‑I can t remember.
PN617
You can t remember? You can t say yes or no?‑‑‑I can t ‑ ‑ ‑
PN618
The answer is you don t know?‑‑‑I can t remember.
PN619
You don t come back until 6 March, isn t that right?‑‑‑Yes.
PN620
The organisers were concerned up until the day that you heard that request made to organisers, and by the way was that at any general meeting or was it at an industrial meeting or an industrial day? Was it a formal meeting or was it just a general conversation you heard in the office?‑‑‑It was a meeting.
PN621
It was a meeting?‑‑‑Yes.
PN622
Can you give us a day?‑‑‑I can t give you - I can t remember the day.
*** PEGGY LEE XXN MR VAN DE WIEL
PN623
Is it prior to 13 February?‑‑‑Yes.
PN624
I m going to ask the question, you can tell me you don t want to answer, Ms Asmar never asked you to do the test for Eden or Roe did she?‑‑‑I don t want to answer this question.
PN625
Ms Kitching never asked you to do the test for Eden and Roe did she?‑‑‑I don t want to answer this question.
PN626
Neither Mr Eden or Mr Roe asked you to do the test for them did they?‑‑‑I don t want to answer that question.
PN627
You see, Diana was very concerned that the tests be done and let me suggest she said words to the effect to you of Why hasn t all this been organised? ? Yes?‑‑‑Can you repeat the question, sorry.
PN628
Did Diana say to you, in relation to the rights of entry tests, ACTU tests, Why hasn t all this been organised? ?‑‑‑No.
PN629
Why hasn t it all been done? Why haven t these people done their tests? words like that?‑‑‑Yes.
PN630
Yes, she did say something like that?‑‑‑Mm.
PN631
Did she say to you You do it ?‑‑‑Can I not - I don t want to answer this question.
PN632
THE VICE PRESIDENT: I don t understand that. Why answering the question as to whether Ms Asmar said something to you incriminates you?‑‑‑Because of these question or because of his direction somehow it affects my intention to do the tests.
PN633
I don t want you to answer any questions about you doing any tests so I do understand that an answer to that question may incriminate you, but I don t understand why a question about what is said to you and not going any further steps incriminates you?‑‑‑Okay. Okay, I can answer that question. She did ask.
PN634
MR VAN DE WIEL: Yes and she was quite angry about it?‑‑‑Yes.
*** PEGGY LEE XXN MR VAN DE WIEL
PN635
She said These tests aren t hard. Even you can do the test , didn t she?‑‑‑She didn t say that.
PN636
You tell me precisely what she did say?‑‑‑She asked me in the corridor that Could you do the test?
PN637
And your answer is?‑‑‑No.
PN638
No, because you d never sat the test?‑‑‑I sat the test before.
PN639
Sorry, when had you sat the test? I asked you earlier if you d sat the test and you told me you d never sat the test. When had you sat the test?‑‑‑It was long time ago, like a - - -
PN640
When Ms Asmar says You can do the tests you said no?‑‑‑Yes, I say no to her, yes.
PN641
Certainly Ms Asmar never said You can do the test for Jayne Govan, you can do the test for Atkinson, you can do the test for McCubbin, you can do the test for any of these people did she?‑‑‑She didn t specify the names.
PN642
No, she didn t specify anything?‑‑‑No.
PN643
All she said is You can do the tests and you said no?‑‑‑Correct.
PN644
You took that to mean a request that she was directing you to do the tests for people, is that right?‑‑‑Part of it.
PN645
Did she ever come to you, to your office, to say I want you to do the tests for a variety of people ?‑‑‑No.
PN646
No. But Mr McCubbin, he was trying to persuade you to do the test wasn t he? Just answer the question, yes or no?‑‑‑No, I don t think so.
PN647
Did Mr McCubbin say words to the effect to you that the organisers not having to do the tests themselves?‑‑‑Yes.
*** PEGGY LEE XXN MR VAN DE WIEL
PN648
He did?‑‑‑Yes.
PN649
You told him no?‑‑‑No is for the answer as like Diana. He was stating something about the previous legislation, that s it.
PN650
Do you say Mr McCubbin was not asking you to do the tests for other people?‑‑‑He did not ask me to do the test.
PN651
Anyway, you go away, you go back to Hong Kong, and then you come back from Hong Kong around about 6 March?‑‑‑Correct.
PN652
Or in any event you come back to work on 6 March, I don t care when you came back. Your business, not ours. At that stage, you have a conversation with Mr Lasinski?‑‑‑Yes.
PN653
Mr Lasinski says You re going to lose your job ?‑‑‑Yes.
PN654
You d never heard that before?‑‑‑No.
PN655
Didn t hear it from Ms Asmar or anybody else?‑‑‑No.
PN656
He wasn t teasing you was he? Or if he was you don t know?‑‑‑No, he was really serious.
PN657
He was serious, yes. Then what happens is you get the results, do you, of a lot, or you get the applications, don t worry about your statement for the moment, when you come back from work, you get the results of various people having done their tests, is that right?‑‑‑Yes.
PN658
They get given to you by Ms Gantos or Ms Kitching?‑‑‑I was given by the receptionist.
PN659
That s Ms Gantos?‑‑‑I forgot her surname.
PN660
It s in your statement, I think you say Jeanine Gantos?‑‑‑Yes.
*** PEGGY LEE XXN MR VAN DE WIEL
PN661
She gives you some of the completed application forms or completed to some degree?‑‑‑Yes, correct.
PN662
Ms Kimberly Kitching also presents to you some of those application forms for registration for Fair Work, is that right?‑‑‑I can t remember.
PN663
Have a look at your statement just quickly. I m not going to ask you about the particular paragraphs?‑‑‑I was given the application forms and certificates of completion by Jenny not from Ms Kimberly Kitching.
PN664
Not by or some by? I didn t understand what you said?‑‑‑I was just given a bundle of documents. They were all given by Jenny not from Kimberly Kitching.
PN665
Did Kimberly Kitching give you some documents?‑‑‑I can t ‑ I don t think so.
PN666
You can t remember?‑‑‑I can t remember.
PN667
No. Let me suggest to you that you were given some by Kimberly Kitching and what she said to you was I have had this done ?‑‑‑I can t remember.
PN668
Look what I ve done , meaning See I ve got it organised. You didn t get it organised. Here they are ?‑‑‑I can t remember.
PN669
You can t remember. You see isn t this the position when you spoke with Mr Enright, you had already told Ms Flynn what you believed had occurred at the union, isn t that right?‑‑‑Yes.
PN670
You certainly believed that Mr Enright, acting on behalf of the Fair Work as you understood it, accepted what Ms Flynn had told him?‑‑‑I don t know. He just contact me for the statement.
PN671
You had to confirm, didn t you, the view that you had formed that you d been requested to actually do tests, isn t that right? That s how you understood your position?‑‑‑Can you repeat the question, sorry.
PN672
Yes?‑‑‑Can you repeat the question.
*** PEGGY LEE XXN MR VAN DE WIEL
PN673
Yes. Did you understand it to be your position that because of the correspondence that Ms Flynn had had with Fair Work before and her conversations with Fair Work, that you really had to confirm what you d said to Ms Flynn?‑‑‑Confirm with what I said?
PN674
To agree with what you d said previously?‑‑‑Do you mean I confirm with whom?
PN675
Confirm with Mr Enright what you d said to Ms Flynn earlier?‑‑‑Yes, yes.
PN676
I want to take you, if I might, to annexure 7 I think it is, of your statement. Do you have that available to you? Sorry, annexure 1, I ve misled you. Just the one which appears to be dated 12 March?‑‑‑Yes.
PN677
Ms Kitching is asking you if you can ask David Eden for his logon details that should then allow you to print out his certificate, is that right?‑‑‑Mm hm.
PN678
Ms Kitching, certainly by 12 March, didn t give you Mr Eden s certificate, is that right?‑‑‑Correct.
PN679
In fact she never gave you the certificate of any people, did she?‑‑‑She gave it to Jenny, Jenny passed it to me.
PN680
You weren t there?‑‑‑Jenny told me.
PN681
Jenny told you?‑‑‑Yes.
PN682
Forget about what Jenny told you. What did you see?
PN683
THE VICE PRESIDENT: Is it Jeanine or Jenny?‑‑‑Jenny.
PN684
Jeanine?‑‑‑Like the - yes, the girl I mentioned in my statement.
PN685
MR VAN DE WIEL: In any event, in relation to this email, Ms Kitching is saying to you Get the details from Mr Eden , is that right?‑‑‑Yes.
PN686
Were you asked to get the details from other people?‑‑‑No.
*** PEGGY LEE XXN MR VAN DE WIEL
PN687
Did you get the details from Mr Eden?‑‑‑No.
PN688
Sorry?‑‑‑No.
PN689
Isn t this the position that you made contact with the ACTU in order to find the details of Mr Eden because there was a concern as to whether he d been properly enrolled or not?‑‑‑Yes.
PN690
It appeared that he hadn t been properly enrolled?‑‑‑Correct.
PN691
That was something that you should have done. You should have been properly enrolling him shouldn t you? That was part of your job as the industrial assistant?‑‑‑I didn t know what happened with the ACTU.
PN692
No, I appreciate that you don t know what happened?‑‑‑Yes.
PN693
But it had been your role, it was your job to enroll him and you hadn t done it?‑‑‑I have done it. But just I don t know what happened the ACTU at that stage.
PN694
That s right. It s all right, it happens?‑‑‑Yes.
PN695
Because you hadn t enrolled him, you felt the pressure to do the test for him because he hadn t been enrolled, isn t that right?‑‑‑I can t say that because I have forwarded the application to ACTU and for some reason ACTU just didn t process the application.
PN696
For whatever reason, you felt stressed about your job, you felt it would be considered to be your fault that he hadn t been enrolled and that s why you did his test, isn t that right? In fairness to you, you ve already told us you don t want to answer the question. I m not trying to trick you. You can answer my question if you like and I would prefer if you did but I don t want to be in a position where I ve tricked you or be seen to have tricked you?‑‑‑But can I not answer that question?
PN697
THE VICE PRESIDENT: You don t going to have to answer a question as to whether you did the test which is a question related to why you didn t do the test. That encompasses the notion of whether you did the test and you don t have to answer that question if you don t wish to?‑‑‑Okay. Yes, I don t want to answer that question.
*** PEGGY LEE XXN MR VAN DE WIEL
PN698
MR VAN DE WIEL: Just excuse me for a moment, please. I m sorry, in all of that, are you prepared to answer my question or not prepared to answer it?‑‑‑I m not going to answer that question.
PN699
I won t ask you why, you ve already told us. You see, having put yourself in the position where you potentially having breached the law, do you exaggerate the position in relation to Ms Asmar and Ms Kitching?‑‑‑No.
PN700
Let me suggest you do in order that you do not look as bad as you do?‑‑‑No.
PN701
If Mr Enright had not told you that you would not be charged with any breach of the law, would you have ever made this statement?‑‑‑I think I will still make the statement but at the same time I will get legal advice as to some protection I would have as a witness.
PN702
As I understand what you re saying Mr Enright said to you You will not be charged with any breaches of the law . You then go and see your lawyer, you get advice and it s ‑ sorry, Mr Champion is trying to tell me what s in your mind, his obviously amazing powers. Let s leave him out of it, don t worry about him. Pretend he s quiet?‑‑‑Yes. Can you repeat.
PN703
Mr Enright tells you If you make the statement to me, you won t be charged with any offences words to that effect and that s what you understand him to be saying?‑‑‑Yes.
PN704
In order that you feel comfortable with that, you then go and see a lawyer. Having seen a lawyer, you are comfortable with the idea that you will not be charged with any offences, is that right?‑‑‑Correct.
PN705
And being comfortable in that position, you are prepared to make the statement?‑‑‑Correct.
PN706
If that is not correct, you would not have made the statement, is that true?‑‑‑It s not to the extreme but I will still make the statement - - -
PN707
Would you?‑‑‑but I will still claim a bit of protection because I m not too sure about the legal side of it. But just because of this statement and also legal advice, I provided the statement.
*** PEGGY LEE XXN MR VAN DE WIEL
PN708
Let me suggest this to you in relation to this email exchange, this Facebook exchange I m sorry, Ms de Pietro was a person who you trusted/not trusted?‑‑‑Trusted.
PN709
You did trust. September of any significance to you in terms of HWUS HSU?
PN710
THE VICE PRESIDENT: What year?
PN711
MR VAN DE WIEL: 2013?‑‑‑Can you - - -
PN712
Don t worry about that for the moment, just answer my question?‑‑‑Can you repeat the question.
PN713
Was September 2013 of any significance to you in terms of that union?‑‑‑I resigned from the union.
PN714
Yes, you had resigned. You d resigned after 8 August. You d been asked about some political activities ‑ ‑ ‑?‑‑‑Yes.
PN715
- - - and you d got stressed and got sick and got a whole series of medical certificates, you never went back to work but you wrote a fairly detailed explanation of your political activity and how it wasn t in breach of any Federal Court order and that you d only done it after hours in support of Mr Belamo, is that right?‑‑‑I provide it, yes, I provide the response.
PN716
No, it s all right, and then you got a response from Ms Asmar saying she accepted your explanation and she was happy to keep on working with you?‑‑‑Yes.
PN717
But you didn t feel comfortable about going back, is that right?‑‑‑Correct.
PN718
That had all happened in August, isn t that right? August 2013?‑‑‑July, end of July and August I think.
PN719
Why do you tell Ms de Pietro that things are going to happen in terms of the union in September?‑‑‑Can I refer to my Facebook conversation?
PN720
Yes, of course you can?‑‑‑Could you please direct me to ‑ ‑ ‑
*** PEGGY LEE XXN MR VAN DE WIEL
PN721
THE VICE PRESIDENT: Which page was this on?
PN722
MR VAN DE WIEL: Just excuse me for a minute. If you go to the entries please on 29 August at 10.41, it s at the top of the page.
PN723
THE VICE PRESIDENT: It s about three pages in from the back?
PN724
MR VAN DE WIEL: Yes. One page according to double printout, yes
PN725
THE VICE PRESIDENT: Yes, yes.
PN726
MR VAN DE WIEL: You got that?‑‑‑10.31 or 41, sorry?
PN727
10.41?‑‑‑I was talking about - - -
PN728
I guess probably September or October things may start to come up . What things were you talking about?‑‑‑About a complaint.
PN729
Complaints by Ms Flynn?‑‑‑Yes.
PN730
Which would have included what you had said to Ms Flynn?‑‑‑Yes, it could include that.
PN731
Just things that will stuff up the whole union. Excited, excited, ha ha ha. Anyway, I m glad I m going to finally leave the place , is that right?‑‑‑Correct.
PN732
Were you pretty excited about making sure that difficulties arose in terms of the union weren t you?‑‑‑Because I d been there some issues within the union, because of the complaint that Ms Flynn lodged with the Commission then I was excited to see that like that means some I can t malfunctions but like some correction will be brought to the union to make sure that it operate properly.
PN733
Just go back to your statement briefly, paragraph 56, please. Don t know if you want to answer this or not, I knew because they seemed to be asking me every couple of days about the tests. I kept delaying because I knew it would have been wrong for me to do the tests for other people and I didn t want to do them , is that right?‑‑‑Correct.
*** PEGGY LEE XXN MR VAN DE WIEL
PN734
They never said to you that you should do the tests. All they said was What s happening with the tests? isn t that right?‑‑‑They gave me a lot of pressure.
PN735
Yes, of course they gave you a lot of pressure because they had a lot of pressure to make sure these union organisers were properly endorsed. Isn t that right?‑‑‑Can you repeat the question, sorry.
PN736
Organisers can t work properly unless they ve got their rights of entry?‑‑‑Correct.
PN737
To make sure they ve got their rights of entry, someone has to kick them in the bottom, so to speak?‑‑‑Someone has to do the tests.
PN738
Someone has to do the tests?‑‑‑Yes.
PN739
The organisers have to do the tests. There s no doubt in your mind the organisers have to do the tests, is that right?‑‑‑Correct.
PN740
You were being pressured to make sure the organisers had done their tests?‑‑‑Correct.
PN741
Correct. The reason I m taking you to these various Facebook entries is you say in your statement to Mr Enright in a number of occasions, and I ll take you particularly to paragraph 88, I had not been involved in any politics around the union elections , is that right?‑‑‑Correct.
PN742
91 I d not been involved in any politics before Diana became the secretary and I didn t want to get involved in them so I decided that I would not stay in the branch , is that right?‑‑‑Yes.
PN743
But you were involved in the politics weren t you?‑‑‑No.
PN744
No? Don t we see this in this correspondence that you have with Ms de Pietro?‑‑‑No.
PN745
No?‑‑‑No.
PN746
You resigned from the union of your own accord, isn t that right?‑‑‑Mm.
*** PEGGY LEE XXN MR VAN DE WIEL
PN747
Yes. Thank you.
PN748
THE VICE PRESIDENT: Ms Lee, I ve asked you to answer the questions directly but is there anything by way of explanation that you wish to add to your evidence arising from the questions that have been asked of you?‑‑‑Yes. The reason why provided this statement to the Fair Work Commission was based on the statement provided by Chris Enright and also the legal advice I got from my lawyer at that time and also the reason why I refuse to answer those questions in relation to whether I did the test or not, of course I want to claim the privilege against self-incrimination. Yes, what I gave was based on the legal advice I got. To a certain extent I believe that it is the right thing for me to do to tell the truth and provide the true information to the Commission and assist the Commission for the right of entry investigation. Yes, that s all what I had.
PN749
Thank you very much for your evidence.
PN750
MR VAN DE WIEL: Sorry, can I just ask one question before she goes? This Facebook conversation that you had with Ms de Pietro is certainly your conversation with her, isn t it?‑‑‑Yes.
PN751
Yes, thank you.
PN752
THE VICE PRESIDENT: Thank you for your evidence, Ms Lee?‑‑‑Thank you.
You can step down and you re excused from further attendance?‑‑‑Thank you.
<THE WITNESS WITHDREW [12.44 PM]
PN754
MR VAN DE WIEL: Can I tender that conversation, your Honour?
THE VICE PRESIDENT: Yes, I ll mark it exhibit 17.
EXHIBIT #17 FACEBOOK CONVERSATION BETWEEN PEGGY LEE AND MS DE PIETRO
PN756
THE VICE PRESIDENT: The next witness is Mr McCubbin. I think the estimate was half an hour in cross-examination.
PN757
MR VAN DE WIEL: I ll try to do it within half an hour.
PN758
THE VICE PRESIDENT: We have also Mr Mann at 2.00 pm and the estimate is for a longer period of cross-examination.
PN759
MR VAN DE WIEL: Mr Mann and Mr Rosalion, I m never sure how to pronounce his name, Rosalion, I ll call him Mr Rosalion, I ll apologise to him later if I ve got it wrong, have had a conversation. As I understand it they ve agreed on many things and I think there s a statement of agreement. Have you got that, your Honour?
PN760
THE VICE PRESIDENT: I ve got it now.
PN761
MR VAN DE WIEL: You have that?
PN762
THE VICE PRESIDENT: How long do you need Mr Mann now?
PN763
MR VAN DE WIEL: I would have thought we wouldn t need him for more than 10 minutes, would we? Just excuse me for a moment.
PN764
THE VICE PRESIDENT: What we might do then is adjourn until 1.30. We ll then have Mr McCubbin. I m expecting that the cross-examination would be completed by around 2.15, that s a little bit longer than the original estimate. We ll let Mr Mann know that he is likely to be a little bit later than 2.00 but that his cross-examination will not be as long as the hour and a half that was estimated last week.
PN765
MR VAN DE WIEL: No, we won t be an hour and a half with him.
PN766
THE VICE PRESIDENT: We ll let him know that.
PN767
MR VAN DE WIEL: No. I ll steal some of the hour and a half from Mr Mann for Mr McCubbin if that s all right.
PN768
THE VICE PRESIDENT: Yes. I ve given it to you.
PN769
MR VAN DE WIEL: Thank you.
PN770
THE VICE PRESIDENT: We ll adjourn until 1.30.
LUNCHEON ADJOURNMENT [12.47 PM]
RESUMED [1.34 PM]
PN771
THE VICE PRESIDENT: Mr Van de Wiel?
PN772
MR VAN DE WIEL: Your Honour, I saw Mr Enright in the corridor near the toilets - he was going to the lift, I was going to the toilet - there was nothing improper about it. I said to him that there had been evidence from Ms Lee that there had been some correspondence from him in relation to potential charges, and also something had gone to her lawyer, and that I would be seeking a copy of that correspondence. And he said he would dig it out for us.
PN773
I would seek to put that before you with a view to considering whether or not one of the submissions we would make in terms of submissions, as to whether or not the statement of Ms Lee was obtained appropriately. I would say no more about it than that. But I ve asked him for that correspondence.
PN774
I might also indicate I spoke to him on Friday afternoon asking him for correspondence between the witnesses after August of last year up until the hearing here, and he has provided me with one in relation to Peggy Lee which was it's a non-event. It s not something I m concerned about. I m not even going to tender it. It s merely notifying him of the fact that she s given evidence and they exchange Christmas greetings. Good luck to them. I m not troubled by that. I don t care. I m not going to cross-examine him based on that correspondence. But if this communication is of some significance, we may seek to raise it in terms of your ability with respect to be able to utilise her statement.
PN775
THE VICE PRESIDENT: Yes.
PN776
MR VAN DE WIEL: We were concerned in terms of the issue of Jones v Dunkel in terms of you drawing any adverse inferences in relation to our clients, Ms Kitching and Mr Katsis, in respect to the fact that we did not call Ms Kitching in our case. I m concerned to allay that and for that reason I wonder if - because of her professional commitments - I wonder if I might just briefly interpose her for no more than two minutes before you?
PN777
THE VICE PRESIDENT: Yes, you may do that.
PN778
MR VAN DE WIEL: Thank you. Ms Kitching, could you go into the witness box, please?
THE VICE PRESIDENT: Please remain standing, Ms Kitching. My associate will administer the oath or affirmation.
<KIMBERLEY KITCHING, SWORN [1.37 PM]
EXAMINATION-IN-CHIEF BY MR VAN DE WIEL [1.37 PM]
PN780
THE VICE PRESIDENT: Thank you, Ms Kitching. Please be seated.
PN781
MR VAN DE WIEL: In relation to the matter of RE2013/1291 RO2013/1438, you made a statement in relation to that matter?‑‑‑Yes, I did.
PN782
Could you have a look at this document for me, please? I understand that it was filed with this Commission in September of last year.
PN783
THE VICE PRESIDENT: Yes.
PN784
MR VAN DE WIEL: And it should be, with respect, on your Honour s file.
PN785
THE VICE PRESIDENT: It should be there?
PN786
MR VAN DE WIEL: It should be. If it's not, I ll tender this one and then we ll all get a copy of that if we need it later.
PN787
THE VICE PRESIDENT: Yes.
PN788
MR VAN DE WIEL: (To witness) Your statement?‑‑‑Yes, that is.
PN789
True and correct?‑‑‑True and correct.
PN790
Right. Can I just ask you these questions? I ll tender that, thank you. Are the annexures attached there too?‑‑‑Yes.
PN791
They re the annexures you refer to?‑‑‑Yes, they are.
PN792
And to the best of your knowledge and belief, everything contained therein is true and correct?‑‑‑That s right.
PN793
Okay, I ll tender it.
*** KIMBERLEY KITCHING XN MR VAN DE WIEL
THE VICE PRESIDENT: I ll mark that statement Exhibit 18.
EXHIBIT #18 STATEMENT OF MS KIMBERLEY KITCHING INCLUDING ANNEXURES.
PN795
MR VAN DE WIEL: Ms Kitching, did Ms Asmar ever direct you to do any tests for the right of entry test for the ACTU for any of the organisers of the HSU/HWU in 2013?‑‑‑She did not.
PN796
Did you ever tell anybody that you had performed such tests?‑‑‑I did not.
PN797
Did you ever tell anybody that you had received the percentage of 100 per cent or otherwise in terms of any tests?‑‑‑I did not.
PN798
Did you ever do any right of entry tests yourself?‑‑‑I did not.
PN799
Thank you.
PN800
THE VICE PRESIDENT: Thank you for your evidence, Ms Kitching?‑‑‑Thank you.
PN801
You can step down.
PN802
MR VAN DE WIEL: Might she be excused?
THE VICE PRESIDENT: You may be excused from further attendance?‑‑‑Thank you.
<THE WITNESS WITHDREW [1.40 PM]
THE VICE PRESIDENT: Is it convenient we call Mr McCubbin now? Mr McCubbin, if I could ask you to remain standing for a brief moment while my associate administers the oath or affirmation.
<ROBERT MCCUBBIN, SWORN [1.41 PM]
EXAMINATION-IN-CHIEF [1.41 PM]
*** ROBERT MCCUBBIN XN
PN805
THE VICE PRESIDENT: Please be seated, Mr McCubbin?‑‑‑Mr Commissioner, can I just ask you a couple of questions before we start?
PN806
Yes, you may?‑‑‑This is strictly in relation to the right of entry?
PN807
It is?‑‑‑Okay, another question is - or the other thing is - if this is going to go for a fair while, I may need to ask for a bit of a break because of my back and medical condition.
PN808
Yes, if you need a break at any time please let me know?‑‑‑Yes.
PN809
I m going to ask you about the statements that you ve made, I think firstly to Mr Enright and there s a supplementary statement to the Royal Commission?‑‑‑Yes.
PN810
I m going to ask you about those, then Mr Van de Wiel or Mr Champion will have some questions for you?‑‑‑Yes.
PN811
Your obligation as a witness is to answer those questions but I m also going to give you an opportunity to add anything that you wish to, relevant to the matters before me, that arise from those questions?‑‑‑Thank you.
PN812
That opportunity will either be at the time you answer the questions or at the end of your evidence?‑‑‑Yes.
PN813
If there s anything you do wish to add in relation to the questions you re asked, I ll give you the opportunity to do so?‑‑‑Thank you very much.
PN814
Do you have the copy of a statement that is signed by you and dated 13 September 2013?‑‑‑I believe so - yes, I do.
PN815
It is 41 numbered paragraphs?‑‑‑Yes.
PN816
Are there any changes or modifications you wish to make to that statement?‑‑‑I changed my statement in the Royal Commission for the purposes of, you know, like, I did ring Chris Enright and ask for those changes prior to the Royal Commission but for some reason they didn t get there. I didn t notice it when I was in Sydney due to pain and lots of reasons, but I did fix it up when I came back, and I went to the Royal Commission here in Melbourne.
*** ROBERT MCCUBBIN XN
PN817
So, are the changes and modifications dealt with in the supplementary witness statement?‑‑‑No.
PN818
What are the changes?‑‑‑It was tab 15 or question 15.
PN819
Paragraph 15 at the top of page 3?‑‑‑Yes, that needed to be changed to January 2013.
PN820
Yes?‑‑‑And in 16, instead of April its actually February.
PN821
Yes?‑‑‑And page or statement 22, it is "unlikely" that I will apply for the right of entry.
PN822
It should be "unlikely" on the second line?‑‑‑Yes, unlikely.
PN823
Instead of "likely"?‑‑‑Yes. That s about it.
PN824
Okay. On the last occasion you were here I cautioned you about the privilege against self-incrimination?‑‑‑Yes.
PN825
You re not required to answer any questions on the grounds that an answer to those questions may incriminate you?‑‑‑Mm.
PN826
And your evidence was adjourned to enable you to get advice?‑‑‑Yes.
PN827
And consider those matters. I m going to ask you about the statements firstly, the first statement, the one we ve just gone to. Is that statement true and correct?‑‑‑Absolutely, with those changes.
Thank you yes, as amended. I ll mark that Exhibit 19 in these proceedings.
EXHIBIT #19 AMENDED STATEMENT OF ROBERT McCUBBIN, DATED 13/09/2013.
PN829
Now, can I ask you also about the supplementary witness statement that I think was given to the Royal Commission?‑‑‑That s true and correct.
*** ROBERT MCCUBBIN XN
PN830
Do you have a copy of that there? That s 47 numbered paragraphs?‑‑‑Maybe - I think so; 47, yes.
PN831
And there are no changes you wish to make to that?‑‑‑No.
PN832
MR VAN DE WIEL: We don t have that. We didn t get it at the Royal Commission and we never had it before.
PN833
THE VICE PRESIDENT: Okay, my associate will give you a copy and you may - - -
PN834
MR VAN DE WIEL: Could I just have a few moments to skim it?
PN835
THE VICE PRESIDENT: Yes. It may be that the cross‑examination needs to be adjourned for a brief period, Mr Van de Wiel, to give you an opportunity to read it in full and get instructions as necessary. What I might do is ask the witness - and you may have already said that - is this statement true and correct?‑‑‑Yes, it is.
Yes. I propose to mark that statement Exhibit 20 in the proceedings.
EXHIBIT #20 SUPPLEMENTARY WITNESS STATEMENT OF ROBERT McCUBBIN.
PN837
THE VICE PRESIDENT: Mr Van de Wiel, what s the most convenient? Do you wish to commence cross-examination and have an adjournment later?
PN838
MR VAN DE WIEL: No, not really because chronologically what s contained in this second statement is a lot to do with what we say is the genesis of the statements, and I m certainly not interested in the Becom material, not interested in that, but when we get to page 3, it certainly starts to be of significance to me in terms of the cross‑examination. And I m sorry, this was not tendered at the Royal Commission and it was never provided to us. What we did have is we had some emails which really consisted of emails between Ms Potter Ms Potter s presumably computer - and Ms Amy Southwell at the Royal Commission in which various amendments and so on were pointed out, but I ve never been in possession of this document before today.
PN839
THE VICE PRESIDENT: Okay. If I adjourn for 15 minutes, would that be sufficient time for you to - - -
*** ROBERT MCCUBBIN XN
PN840
MR VAN DE WIEL: I ll see how I go. I ll read it and see whether it really does alter anything. It may not.
PN841
THE VICE PRESIDENT: Yes.
PN842
MR VAN DE WIEL: Yes, 15 minutes would be adequate for me to get on top of this, I hope.
PN843
THE VICE PRESIDENT: Yes, I think it's better that you have knowledge of it before you commence cross-examination.
PN844
MR VAN DE WIEL: Thank you, I m indebted for that.
PN845
THE VICE PRESIDENT: We ll adjourn until 2.10 pm.
SHORT ADJOURNMENT [1.50 PM]
RESUMED [2.00 PM]
THE VICE PRESIDENT: Mr Van de Wiel.
CROSS-EXAMINATION BY MR VAN DE WIEL [2.00 PM]
PN847
MR VAN DE WIEL: Thank you. Thanks for that opportunity, your Honour.
PN848
Mr McCubbin, prior to 10 July of 2013 what was the nature of your relationship with Ms Asmar?‑‑‑Reasonably good.
PN849
Were you a trusted confidante of hers?‑‑‑Yes, and she was across - - -
PN850
And?‑‑‑She received the same back from me.
PN851
Sorry?‑‑‑And she received the same back from me.
PN852
You were close friends with her and her partner, often have meals, attend functions, christenings, barbecues and the like. Is that right?‑‑‑Correct.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN853
And occasionally at social gatherings you would discuss issues to do with the union issues, is that right?‑‑‑On occasion, yes.
PN854
Now just in terms of her position, she's elected the secretary of the HSU No. 1 branch in December of 2012. Correct?‑‑‑Correct.
PN855
You had assisted her in her electioneering by using some of your contacts and so on in order to assist with garnering votes in her favour?‑‑‑Yes, I was rather popular out in the bush, so yes.
PN856
Yes. So do you say, sir, as you were saying - and you can go to paragraph 7 of your statement if you would? Mr Govan ran for the assistant secretary treasurer and you say, do you sir, that there was a clear agreement between Diana and David and Daniel Govan that if he was successful he would stand down from his position. Is that right?‑‑‑That's correct.
PN857
And forgive me, at that time were you a member of the union?‑‑‑At that time no, I wasn't.
PN858
And you were certainly not an elected official?‑‑‑No, I wasn't.
PN859
So even if he was to stand down from his elected position how were you going to take up this role?‑‑‑Ms Asmar - when I did join the union Ms Asmar directed me to pay 12 months' back fees.
PN860
Which would make you a member of the union but how would it make you an elected official?‑‑‑Which would mean that I started 12 months earlier. You need to be in the - as a member for 12 months prior to becoming an elected official. So it would've backdated it by 12 months.
PN861
It's a bit of a fantasy isn't it, Mr McCubbin?‑‑‑Not at all.
PN862
All right. You volunteered to work at the union with the idea that you would become an employee and become the lead organiser. Is that right? Excuse me I've got some sort of creature here in my throat. Can you hear me all right?
PN863
UNIDENTIFIED SPEAKER: Yes.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN864
MR VAN DE WIEL: Yes, okay?‑‑‑I did ask Ms Asmar if I could be the lead organiser until such time as the next election. So I - so that I could - because I was a - the most experienced organiser that was in the organisation and I had done it on previous occasions.
PN865
You'd been an organiser before?‑‑‑And team leader.
PN866
Under another regime?‑‑‑Yes.
PN867
And a team leader, and you knew a considerable amount about rights of entry?‑‑‑Correct.
PN868
The duties of organisers and so on, and so initially you volunteered and then ultimately you became employed by the union and you became employed around about 22 April, is that right? Don't worry about the date precisely?‑‑‑Yes, the 22nd of April.
PN869
I'm not trying to trick you. So at this stage in early 2013 although you were a volunteer it was always with a view that you would be employed?‑‑‑Correct.
PN870
Yes, and for all intents and purposes you were behaving as an employee of the union even though your employment hadn't been officially approved by Become?‑‑‑Correct.
PN871
Now you worked at the union and in terms of your duties did you think, sir, that you had some difficulties with your IT skills?‑‑‑Yes, I did.
PN872
Yes, okay?‑‑‑I could get around a computer but I wasn't real good at it.
PN873
No?‑‑‑As I said I'm old school. I prefer to speak to people face to face.
PN874
It's not a personal criticism. Believe me, I'm no good at it either. So then what happens is Mr Mark Donohue sets up, doesn't he, a proposal whereby the organisers have to have their diaries structured for a considerable time in advance. Is that right?‑‑‑It was an agreement between Diana, Mr Donohue and myself.
PN875
Well, it was a direction to the employees of the union, wasn't it?‑‑‑Yes, it was a direction from - - -
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN876
Yes, it wasn't an agreement between them. It was a direction - - -?‑‑‑I was - - -
PN877
- - - that she gave to Donohue and he then distributed it to the organiserse?‑‑‑We discussed it prior.
PN878
Yes?‑‑‑That was the decision that was made and Ms Asmar gave the direction to have that done.
PN879
And you were not in agreement with this. You thought it was a silly idea, didn't you?‑‑‑Yes, I did.
PN880
Yes, and you got quite angry about it?‑‑‑No, I didn't. I went to Ms Asmar's house and gave her another proposal that would have covered every angle when Ms Asmar's ideas just would not.
PN881
In any event whatever transpired between you and her about all of that, on 10 July you had a pretty heavy day drinking, sir?‑‑‑We had drinks after.
PN882
But you had had a heavy day drinking?‑‑‑No, I did not.
PN883
I see. In any event on that evening did you leave the motel where you were staying and indicate that you'd resign from the union?‑‑‑I indicated to Ms Asmar or I told Ms Asmar at about 10.30, 11 o'clock that I was resigning.
PN884
Yes?‑‑‑And I left the following morning.
PN885
Now in terms of correspondence before that do you have a copy of your own emails, sir?‑‑‑No, I don't.
PN886
25 June 2013 did you write to her and tell her that you're sorry, that you think Mark and you might be losing the plot in terms of this whole question of how you organise the union organisers? Had you done that?‑‑‑I don't really remember but it's a possibility.
PN887
Do you want to have a look at it? I'll show it to you?‑‑‑Mm‑hm.
PN888
Your text messages?‑‑‑Yes, that's probably my text messages.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN889
Yes, okay I tender those. In any event comes 10 July you take yourself away, having indicated that you resigned. Is that right?‑‑‑That's right.
PN890
Yes?‑‑‑I'd attempted to resign on two occasions previously and I was talked out of it on both occasions.
PN891
Who talked you out of it?‑‑‑Ms Asmar.
PN892
Okay, 10 July you resign again. You leave and did people come and see you and try and talk you out of your resignation?‑‑‑I had David Eden and Lee Atkinson come out to my property.
PN893
Yes?‑‑‑On the 11th.
PN894
Of July?‑‑‑Of July, where I handed them the car keys.
PN895
Yes?‑‑‑My fuel card, telephone - - -
PN896
Yes?‑‑‑And asked them to remove the car and take it back with them.
PN897
Right?‑‑‑They refused.
PN898
Well they wanted to talk you to come back to the union to work, isn't that right?‑‑‑That was their idea, but I made it quite clear to them that I had no intention to do that however I would have a discussion with Ms Asmar.
PN899
And she never contacted you, did she?‑‑‑No, she didn't.
PN900
In fact she accepted your resignation?‑‑‑Yes.
PN901
Yes, which was contrary to your plan, wasn't it?‑‑‑No, it wasn't. I was actually relieved.
PN902
Did you send her a text message, sir, on 17 July?‑‑‑Saying? These questions have already been asked in the - - -
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN903
I'll just show this to you?‑‑‑- - - in the Royal Commission.
PN904
I'll just show this to you.
PN905
THE VICE PRESIDENT: I'll allow the questions. I might take that first bundle of text messages. You tendered that, Mr Van de Wiel?
PN906
MR VAN DE WIEL: I did.
THE VICE PRESIDENT: I'll mark that exhibit 21.
EXHIBIT #21 BUNDLE OF TEXT MESSAGES FROM MR McCUBBIN
PN908
MR VAN DE WIEL: Your message?‑‑‑Yes, they're mine.
PN909
I tender those.
THE VICE PRESIDENT: Exhibit 22.
EXHIBIT #22 FURTHER TEXT MESSAGES FROM MR McCUBBIN
PN911
MR VAN DE WIEL: Is Steve Mitchell a friend of yours?‑‑‑Steve Mitchell was a friend of mine.
PN912
Yes, an organiser for the union?‑‑‑Yes, he was.
PN913
Does he visit you at your home together with his wife?‑‑‑On occasion he used to.
PN914
Did he visit you after 10 July and did you tell him, sir, that in response to his statement that you would return to work and that it was only a hiccup between friends due to work pressure?‑‑‑I did not say that but Mr Mitchell did - - -
PN915
Mr Mitchell said that to you when he was trying to persuade you to get back?‑‑‑No, Mr Mitchell didn't, I'm sorry.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN916
Sorry?‑‑‑No, I'm sorry, Mr Mitchell did not say that to me.
PN917
Did he not?‑‑‑He did come and see me about three weeks after I resigned.
PN918
Yes?‑‑‑But that was not stated.
PN919
And during that meeting, sir, did you express your views about Ms Asmar to him?‑‑‑I would not call it a meeting. It was a visit from - - -
PN920
Yes, all right, let's - - -?‑‑‑From him and himself.
PN921
I'm quite happy for you to call it a visit. I'm not trying to correct you about that. Did you tell him - - -?‑‑‑We spoke more about other issues rather than the union.
PN922
Did you express - - -
PN923
THE VICE PRESIDENT: I think you asked a direct question and I think you should think about the questions - - -
PN924
MR VAN DE WIEL: Did you express at - - -
PN925
THE VICE PRESIDENT: - - - and make sure you give your answer?‑‑‑Yes, sorry.
PN926
MR VAN DE WIEL: When Mr Mitchell was at your house did you express to him hostile feelings towards Ms Asmar?‑‑‑I would not say they were hostile.
PN927
That she was operating outside union rules, doing deals in return for favours for those that helped her at the last election. Did you say words like that to him?‑‑‑Possibly, yes.
PN928
Yes, and did you - - -?‑‑‑Which is also in my statement.
PN929
Did you, sir, over the next couple of weeks ring Mr Mitchell on a couple of occasions and complain about Ms Asmar to him and the way in which she was running the union?‑‑‑No, because I wasn't employed any more.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN930
Did you ask him, sir, to go to a site called Kangaroo Courts which listed a number of items concerning Ms Asmar and her husband and Ms Kimberly Kitching?‑‑‑Yes, I believe I did. Yes.
PN931
Yes. During those calls did you also, sir, make mention of removing Ms Asmar as secretary of the union?‑‑‑Never.
PN932
And that you had support for that?‑‑‑No, never.
PN933
You did, sir, let me suggest, have a discussion with Mr Eden about calling a general meeting of the union to depose Ms Asmar as the secretary and install your friends in positions within the union. Isn't that right, sir?‑‑‑No, I'm sorry that's false. I did have a discussion with Mr Asmar about the fact that he was president. He had the right to call a meeting of management - committee management, but it was about bringing Ms Asmar and giving all the information to branch committee and management as they are responsible for the decisions that are made, but they weren t being given the information that they required.
PN934
I take it you actually meant Mr Eden when you said Mr Asmar?‑‑‑Sorry, Mr Eden. Yes.
PN935
No it's all right. I'm not trying to correct you?‑‑‑Yes, sorry.
PN936
It's okay. So you say it would be wrong if Mr Eden was to say that you did ask him to call a general meeting?‑‑‑I asked him to call a general meeting.
PN937
Yes?‑‑‑About what I just stated. I - - -
PN938
A general meeting which - - -?‑‑‑I said to him that he could, that he had the right as the president. I didn't ask him to do it but I explained to him that he had the right as president.
PN939
And did you explain to him that the reason that you wanted that done was to depose Ms Asmar?‑‑‑No, it wasn't. I never had any intention of deposing Ms Asmar.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN940
Now in the course of these discussions that you had with Mr Mitchell, up until September you did discuss Ms Asmar and you referred to her as, "That fucking redheaded bitch", didn't you?‑‑‑I do not remember at all ever saying that to anybody.
PN941
Is that right?‑‑‑That's absolutely correct.
PN942
And did you tell Mr Mitchell that there were going to be issues regarding the right of entry raised?‑‑‑No, I did not.
PN943
And this was at around about the time when statements were lodged with Fair Work in relation to the rights of entry. You know that, don't you?‑‑‑Yes. Look, what I did say to Mr Mitchell, if I recall it correctly, is that I've had to do a statement for Fair Work Australia in relation to the right of entry and that's all I've - all I stated to Mr Mitchell.
PN944
Did you say to Mr Mitchell on the phone that, "The redheaded bitch is going to be rolled"? Did you say that to him?‑‑‑No, I didn't.
PN945
And that when you got the union you would look after those that you trust. Did you do that, sir?‑‑‑No, I didn't. As I just said I was never - had any intention of opposing Ms Asmar.
PN946
Mr Mitchell had told you, didn't he, that he didn't think it was appropriate to do that and didn't want to discuss the union matters with you any further?‑‑‑Well, because we weren't or I didn't say the things that I'm being accused of, that was never brought up. I said to him that, "I'm past it. I'm just going to go fishing".
PN947
But you didn't just go fishing, did you?‑‑‑Yes, I did.
PN948
You see because you also had a number of conversations with Mr Atkinson, didn't you?‑‑‑I had one or two with Lee, yes.
PN949
And they were to like effect?‑‑‑No, they weren't. It was about whether he wanted a rocking chair and some other piece of furniture that we had at home that we didn't require, because he had moved back from Queensland and needed furniture. That's what I spoke to him about.
PN950
You told him didn't you, sir, shortly after 10 July that you wanted to get back with the union but Ms Asmar didn't contact you, she ignored you and then what you wanted to do, sir, was to get rid of Ms Asmar. Isn't that right?‑‑‑No, that's incorrect.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN951
Did you, sir, prior to the Federal elections in 2013 have some calls with him to the effect that you were going to give him the heads up, "The shit will hit the fan about Diana but you and Mitch will be okay". Do you remember saying those things, sir?‑‑‑No, I didn't.
PN952
I see, and you asked him - - -?‑‑‑Can I just ask a question? Is this about character assassination or what?
PN953
This is, sir, about questions I am asking you about your motivation in terms of making your statement?‑‑‑I had no motivations in terms of making my statement. I told the truth.
PN954
Right, okay, and did you tell Mr Atkinson or did you ask Mr Atkinson to give him his word that "You wouldn't tell Diana about any of this"?‑‑‑No, I did not.
PN955
Did you speak to Mrs Atkinson, Katrina, do you know her?‑‑‑Yes I do.
PN956
Yes. Let me suggest this, that you spoke to her because Mr Atkinson wouldn't take any more calls from you and that you told him that you were out to get Diana Asmar. She was going down and you were going to bone her dry?‑‑‑That's incorrect. The night that I spoke to Katrina she was absolutely rotten drunk. She couldn't even speak properly on the phone and she was abusing me and I actually hung up on her.
PN957
Did you tell her to tell Lee that this was very important, and that you were upset with him because he'd been your mate for some 20 years?‑‑‑Incorrect.
PN958
Yes, he had been your mate for about 20 years though, hadn't he?‑‑‑Yes, we were mates for a long time.
PN959
Yes. Just excuse me for a moment.
PN960
Your Honour, I would seek to call Mr Mitchell on the phone - at the moment he is up in the country - and get him to give evidence about these conversations before you now. We can do that on the phone. Is that permissible or should I call him on a later date?
PN961
THE VICE PRESIDENT: You should call him at a later date, I think.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN962
MR VAN DE WIEL: Okay, I'll do that.
PN963
Now having heard that, Mr McCubbin, do you want to change your evidence about anything that you've said?‑‑‑No.
PN964
No, all right?‑‑‑I may have made a joke about running in the next election but it was only a joke. Like Mitch and I used to joke around all the time.
PN965
It was only a joke? Ms Jayne Govan was a friend of yours, yes?‑‑‑She was one of the employees and we become friendly, yes.
PN966
Yes, but she also became a friend of yours, didn't she?‑‑‑Yes, she did.
PN967
Yes?‑‑‑Like most of the - - -
PN968
I'm not suggesting it was improper. Nothing like that?‑‑‑No, just like everyone else in the office did.
PN969
She was dismissed from the union on 12 July. You know that, don't you?‑‑‑Yes, I do.
PN970
Yes, and you supported her case for wrongful dismissal, didn't you?‑‑‑I told the truth about what actually happened - - -
PN971
Just - - -?‑‑‑- - - in relation to wrongful dismissal or unlawful dismissal, yes.
PN972
Yes, so I take it that when she told you on 12 July what had happened you immediately went to her solicitor to give a statement in support of what you believed to be the reasons for her dismissal. Is that right?‑‑‑I didn't go to her solicitor - - -
PN973
Did you do that, sir?‑‑‑Not immediately, no.
PN974
No. When did you finally, sir, go to her solicitor to make a statement in support of her wrongful dismissal?‑‑‑About three weeks later.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN975
Let me suggest that you did not do that until 2014?‑‑‑Possibly I suggested to Ms Asmar - to Ms Govan - - -
PN976
Have a look at this document for me, if you would be so kind?‑‑‑-To speak - to speak - - -
PN977
THE VICE PRESIDENT: Have you finished your answer?‑‑‑I asked Ms Govan to ask her solicitor if my evidence would be needed, or whatever, and I stated to her that, yes, I would do a statement if required.
PN978
MR VAN DE WIEL: Yes?‑‑‑I didn't jump in the car straight away with her and go in and do it.
PN979
No, because the reason you didn't jump in the car straight away and do it is because you thought there was a chance that Diana might still get you back, or alternatively you hadn't quite worked out what you were going to do in terms of the union. Isn't that right?‑‑‑No, that's incorrect. I was quite happy with what I was doing. I was going fishing and enjoying my life again and that's the way it was going to stay. So, no.
PN980
Yes. So how is it that you get to make a statement to Mr Enright?‑‑‑Mr Enright approached me.
PN981
How?‑‑‑By phone and then he come out to my property in the car.
PN982
Yes?‑‑‑Said to me about making a statement and I said I wasn't keen to do it. He said that he could use powers to force me to make a statement so I just said to him, "All right. Well, I'll make the statement".
PN983
Did he tell you what powers he had?‑‑‑He said that I could be subpoenaed to make a statement, so I had to make a statement.
PN984
I want to get this very clear, Mr McCubbin, and I don't want you to guess. Did he say he could use compulsory powers under the Fair Work legislation to compel you to make a statement?‑‑‑He used words to that effect, yes.
PN985
He wouldn't have used the word subpoena, let me suggest to you?‑‑‑Well, possibly. Possibly but it was powers through the - - -
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN986
No, no, I want to be fair to you and to him?‑‑‑Yes. Thank you.
PN987
Is it my version rather than - - -?‑‑‑No, it's your version, not mine. I - he did say that he had powers to force me into doing the - - -
PN988
Did you ask him what they were?‑‑‑No.
PN989
You just accepted it on face value?‑‑‑Yes.
PN990
Yes, okay. Let me ask you this. When did that happen?‑‑‑I can't remember. The same day that I handed back my right of entry.
PN991
Well, I'm not sure what day that was?‑‑‑Which is in my statement. The 29th of August.
PN992
So he came to see you on 29 August, did he?‑‑‑Yes.
PN993
Ms Flynn had come to see you on 6 August at your home?‑‑‑Mr Commissioner what has this got to do with right of entry?
PN994
MR VAN DE WIEL: Just please.
PN995
THE VICE PRESIDENT: You are required to answer the questions?‑‑‑I believe she - I can't remember the date but yes, she come and saw me on two occasions.
PN996
MR VAN DE WIEL: Right, and Ms Govan also came?‑‑‑Yes, she did.
PN997
As a result of a request from you?‑‑‑I said to them, "Come on out" because they needed a bit of support because they were both absolute messes and I thought that I could have a bit of a chat to them, calm them down and give them a bit of support.
PN998
Was there anything discussed on that day about rights of entry?‑‑‑No, I can't believe - I don't believe that there was.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN999
Did Ms Flynn say words to the effect to you that Peggy Lee had told her that she had done the rights of entry test for Mr Eden and Mr Roe?‑‑‑I found that out in the Commission.
PN1000
Don't worry about that. Did Ms Flynn tell you that on 6 August?‑‑‑No, she did not.
PN1001
Did she say anything at all about anybody doing rights of entry tests on 6 August?‑‑‑I don't believe so. The conversations were more in relation to supporting Ms Flynn about the union.
PN1002
Yes, and the fact that the union wasn't being run properly and as far as you were concerned you could do a better job. Is that right?‑‑‑That's incorrect.
PN1003
I see. Were Ms Govan's political aspirations the subject of any discussion at that stage?‑‑‑No, not really.
PN1004
No?‑‑‑We did make - I think we did make a joke of it but everyone knew that it was a joke and it was just flimsical and dropped straight away.
PN1005
Well, it wasn't really a joke because she did stand, didn't she?‑‑‑Well, she did.
PN1006
Yes?‑‑‑But it certainly wasn't with me and I had no idea that - or I was not aware that she was going to.
PN1007
Yes, all right. So when is the next time that you speak with Ms Flynn?‑‑‑I don't know. Possibly a couple of weeks later.
PN1008
And in terms of that meeting were rights of entry discussed?‑‑‑No.
PN1009
On 6 August did you have a bit of a lend of Ms Flynn?‑‑‑No, not at all.
PN1010
No? Telling her that there was a black box on her car and they always knew where she was and her phone was bugged, all those sorts of things?‑‑‑I did tell Ms Flynn those things but they were certainly not having a lend of her because they were in actual fact truthful.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1011
Yes?‑‑‑Mr Dean Sheriff come up in Ms Asmar's office boasting how he went down and did it on a white RAV4.
PN1012
There was certainly no black box on Ms Flynn's car was there?‑‑‑My understanding it was.
PN1013
I see. In any event the next meeting that you had with Ms Flynn, did you discuss rights of entry then?‑‑‑As I said, I don't believe so.
PN1014
No, I think we discussed 6 August. You say you didn't believe so. There's another meeting; any discussion at that other meeting?‑‑‑I don't believe there was, no.
PN1015
What about with Ms Govan. Did you have any conversation with Ms Govan about rights of entry?‑‑‑We've had discussions over a long period of time but it was well and truly after we'd both done the statements to Fair Work.
PN1016
You see, the statement that you made to Mr Enright is dated 13 September but you didn't fax it back to him until the 16th, did you?‑‑‑Well, that's probably right. I can't remember. I'm not too sure.
PN1017
Now what did you do with that statement in the meantime, sir, between 13 September and 16 September?‑‑‑Well, I signed it. It sat on the bench because I couldn't get down the street because I was having a number of issues with my disabilities.
PN1018
Yes?‑‑‑As soon as I could get down the street to get it back to him, I did it.
PN1019
I mean, did you show it to Ms Govan?‑‑‑I don't believe so.
PN1020
Did you have a telephone conversation with her in which you discussed what you said?‑‑‑We had conversations in relation to right of entry but nothing about what I had said.
PN1021
I see. Now when you spoke with Mr Enright in August did he take a statement from you on that day or did he come back another day?‑‑‑No, he took notes and then he contacted us to come into the city.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1022
Yes?‑‑‑To this building and then we were taken around to another building around the corner and that's where I made the statement.
PN1023
Yes, and did you sign it on that day or did you take it away and have a think about it?‑‑‑No, I think I signed it on the day.
PN1024
Well, you see my copy has got a fax on it that it was faxed to Mr Enright on 16 September?‑‑‑Yes, because when I went home and read it I realised that there was some mistakes in it, so I asked him to correct it.
PN1025
Yes?‑‑‑And to fax out a copy or email out a copy so that I - you know, with the corrections and I signed that. And as I said, I sent it back when I was able to.
PN1026
Yes, well the corrections that were made certainly didn't relate to paragraph 15 and 16, did they?‑‑‑No, that was just a phone conversation between Chris and myself.
PN1027
Yes, because in August of 2014 you had had quite a number of conversations with Ms Amy Southwell in relation to your statement before you gave evidence. Isn't that right?‑‑‑Yes, I did.
PN1028
Yes, so in August of 2014 when you gave your evidence you adopted the statement that you'd made to Mr Enright that we have of 13 September in toto. Isn't that right?‑‑‑I did.
PN1029
Yes?‑‑‑But at the same time I had no chance to read it.
PN1030
Well, that's not right. You had a copy of it with you?‑‑‑I had a copy of it but we were short - it was very short notice in getting a flight to Sydney where it was packed in my luggage downstairs. When we got there I had no chance to read it because I was in a hell of a lot of pain because I had to do a lot of walking. And then the day of the Commission I had to walk over a kilometre, which was very, very difficult for me and again I was in a hell of a lot of pain and could not concentrate on reading the statement.
PN1031
Prior to giving your evidence you had the statement in your possession for let me suggest certainly in excess of a month. Isn't that right?‑‑‑Possibly, yes.
PN1032
Yes, and you would have read it?‑‑‑No, I didn't read it. I was - - -
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1033
Well, you knew you were going to give evidence before the Royal Commission. Isn't that right?‑‑‑Yes, I did and I still - - -
PN1034
And you expected - just a minute. And you expected that you would be asked questions about it. Isn't that right?‑‑‑Yes, I did but I still didn't read this because I had other matters that I was dealing with, such as my boat and other issues.
PN1035
Yes, you see what happened in August of 2014, after you'd given your evidence Ms Asmar also gave evidence, didn't she?‑‑‑That's correct.
PN1036
And she indicated when the industrial days were in her evidence, didn't she?‑‑‑Look, I'm not too sure.
PN1037
Of course you're sure?‑‑‑No, I didn't take that much notice, sir.
PN1038
Let me suggest this to you. That's exactly why you did amend paragraphs 15 and 16 because you knew that they couldn't fly in the light of the evidence which was before the Royal Commission?‑‑‑Well, I suggest you ask Mr Chris Enright because I did make the phone call months prior to the Royal Commission or quite a while prior to the Royal Commission. It just wasn't done.
PN1039
You see no way on God's earth did you ever have a conversation with Diana Asmar about Kimberly Kitching having done a right of entry, did you?‑‑‑I'm sorry, sir, but I was there, not you, and yes I did.
PN1040
I see, and you did that in April, did you?‑‑‑I did that in, as I said, January.
PN1041
Now your - - -?‑‑‑And there was a couple of conversations with Ms Asmar.
PN1042
Your partner - - -?‑‑‑This isn't the only one.
PN1043
Your partner, Ms Porter, is a person who certainly looks after you as well as she can. Isn't that right?‑‑‑Correct.
PN1044
Yes, and she would have read your statement, wouldn't she? I'm not saying she's nosey, she's just trying to help you?‑‑‑No, she read her own statement.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1045
She would have read your statement, let me suggest?‑‑‑Well I'm sorry, I don't believe that she did.
PN1046
Don't you?‑‑‑No.
PN1047
I see. What's an industrial day, sir?‑‑‑An industrial day is where all the staff get together.
PN1048
Yes?‑‑‑The start of it is about housekeeping with the ancillary staff. Then they go back to their job and the organisers have a meeting, or the industrial staff have a meeting about issues and also training.
PN1049
The first industrial day that was held for the HSU/HWU was on 25 February of 2013, wasn't it sir?‑‑‑I can't remember the date, sir. It was usually - the industrial days were usually very early in the month and done on a Wednesday, which I spoke to Ms Asmar and said, "It stuffs the organisers up as far as their weekly routines and all the rest of it go". So it was then changed to a Monday.
PN1050
In any event, you say industrial day as opposed to industrial meeting, don't you sir?‑‑‑Well, generally it does take a day.
PN1051
Yes?‑‑‑And it's always been to - referred to as an industrial day.
PN1052
So you're specifically talking about industrial days, aren't you?‑‑‑That's what it was known as.
PN1053
Yes, okay. So when you talk in paragraph 16 and you say:
PN1054
If I had said April to Mr Enright I was wrong. It should have been February. I now want to correct it to February, but it was an industrial day.
PN1055
Is that right?‑‑‑No, I said to Mr Enright that the month was wrong and I indicated to him that it was actually February.
PN1056
Yes, all right. I understand that, and you say it was at that meeting, the industrial day meeting in February, that Diana Asmar directs the industrial staff that all right of entry permits would be done by Kimberly Kitching. Is that right?‑‑‑That is absolutely correct.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1057
All right. It's not that the details of your enrolment and correspondence in relation to your rights of entry should be forwarded to Ms Kitching, is it?‑‑‑No, it was stated that Ms Kitching would be doing the right of entries for everyone.
PN1058
On the industrial day, sir - - -?‑‑‑Because of their workloads.
PN1059
On the industrial day, sir, do you think you may have been drinking?‑‑‑No, I had not.
PN1060
You certainly take a considerable amount of medication, don't you?‑‑‑I have - - -
PN1061
Legitimate medication. I'm not suggesting that you're taking - - -?‑‑‑Look, I have three specialists that look after me.
PN1062
Yes?‑‑‑A doctor, a pain specialist and a surgeon.
PN1063
Yes?‑‑‑I'm on a strict regime and I follow their regime or the - what I'm directed to take very strictly. Yes.
PN1064
Yes, and you self-medicate with a bit of alcohol as well do you, sir?‑‑‑I follow the direction of my medical team.
PN1065
Yes?‑‑‑And my pain specialist said to me, because the pain - the drugs that I take don't take away the pain. He said to me, "Have a beer with your medication because it boosts it and it might help to take away the pain". All it does is take away the edge. It takes the edge off it.
PN1066
Yes, so it's one beer, is it, or is it - it's not a slab is it?‑‑‑Of course it's not. No.
PN1067
All right. Now at paragraph 18 did Peggy Lee say anything to you at any stage that she was doing rights of entry for anybody?‑‑‑No, she didn't.
PN1068
No, and what you say, sir, is that you are certain - this is in paragraph 19. You are "certain that Kimberley completed the rights of entry tests for" and you list a number of people. Is that right?‑‑‑That's correct.
PN1069
Yes. You indicate Ms Asmar. Is that right?‑‑‑Yes.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1070
Not present when her test was done?‑‑‑No, but I was told by Ms Asmar that it had been done by Kimberley on a number of occasions.
PN1071
You - I see. Any reason why she would tell you that?‑‑‑Yes, because we were close at the time.
PN1072
I see?‑‑‑And she also instructed me that my test would be also done by Ms Kitching.
PN1073
Is that right? And I suppose you told Ms Kitching that she was going to do your test, did you?‑‑‑No, I didn't approach Ms Kitching at all.
PN1074
No?‑‑‑Because we really didn't get on that much.
PN1075
No, and what about Mr Eden? You didn't see anybody do his test, did you?‑‑‑No.
PN1076
No?‑‑‑I didn't see any tests being done.
PN1077
No?‑‑‑Kimberly Kitching kept - and Mark Donohue kept their doors all shut at all times. No one could approach their rooms even if you knocked on the door.
PN1078
Mr Katsis, did you see Kimberley do Mr Katsis' test?‑‑‑No, but I was told by Diana that it had been done.
PN1079
I see. Ms Govan; did you see who did her test?‑‑‑No.
PN1080
No?‑‑‑However she - - -
PN1081
Did you see who did your test?‑‑‑No, I didn't but at the same time I was directed to send my code from the ACTU through to Ms Kitching.
PN1082
Yes?‑‑‑Of which we - as which we - - -
PN1083
As were every other organiser?‑‑‑As which we did on our own personal computer.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1084
Yes?‑‑‑And I still have a copy of that email.
PN1085
No, I appreciate that you did and I don t take issue with it. But that was a general direction in terms of the administration that was happening to all of the organisers, wasn't it, sir, and you as the lead organiser would know that?‑‑‑Yes.
PN1086
Yes?‑‑‑Everyone was directed to pass it on to Kimberley.
PN1087
To send their details to make sure that they were enrolled and they had their passwords so they could do their tests?‑‑‑That's right.
PN1088
Yes?‑‑‑And a number of the organisers told me that they had done that.
PN1089
So Mr Eden didn't tell you that anybody had done his test for him. Correct?‑‑‑No, he told me - - -
PN1090
Mr Katsis didn't tell you that - - -
PN1091
THE VICE PRESIDENT: Mr Van de Wiel, I think you need to give the witness an opportunity to answer your questions.
PN1092
MR VAN DE WIEL: All right.
PN1093
Well, is it yes or no?‑‑‑Diana Asmar told me that she did her test. Nick Katsis, I was told by the secretary. David Eden told me himself. Jayne Govan told me - - -
PN1094
Sorry, Mr Eden told you that?‑‑‑Yes.
PN1095
What did he tell you?‑‑‑He told me that his test was done by Kimberly Kitching.
PN1096
Did he?‑‑‑Yes.
PN1097
I see. When did he do that?‑‑‑It was a discussion in my office.
PN1098
When?‑‑‑When I was still employed at the offices - - -
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1099
Yes, well give us a date if you would be so kind?‑‑‑Well, I don't remember the date. I didn't write these dates down although I did have a hard copy. I did keep hard copies of most things. But, no I'm sorry, I didn't write down a date.
PN1100
No?‑‑‑As I didn't write down a date for the rest of them.
PN1101
THE VICE PRESIDENT: If you don't know the date, so you don't recall the date?‑‑‑I don't recall the date, sir.
PN1102
But I think you were answering the question by going through the list?‑‑‑Yes.
PN1103
At paragraph 19.
PN1104
MR VAN DE WIEL: All right, now there's a whole lot of other people and please tell me, because I'm under the pump here a bit in terms of time, did any of these people ever tell you that they had not done their tests?‑‑‑Yes, they did.
PN1105
Moira Sanderson?‑‑‑No, Ms Asmar - - -
PN1106
No, didn't tell you?‑‑‑- - - told me.
PN1107
Mr Lazaravski; did he tell you he had done - do his tests, yes or no?‑‑‑No.
PN1108
Mr Massa, yes or no?‑‑‑No.
PN1109
Wael Hassan?‑‑‑Yes he did, but he didn't know who did the test.
PN1110
Is that right? You see, what we have is we have evidence from Ms McIntosh, who's also a friend of yours isn't she?‑‑‑Yes.
PN1111
Yes, that Mr Hassan had answers to tests and that he was offering them to people at the union. Did you know anything about that?‑‑‑Well, that's the first I've heard of it now.
PN1112
You haven't heard about it before?‑‑‑No.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1113
So when is it that he tells you that he didn't do his test?‑‑‑Wael? It was one day when we were going out to the (indistinct) because they had to give him a lot of help out there - - -
PN1114
Which month?‑‑‑Because he had no experience.
PN1115
Which month?‑‑‑It would have been - it was well and truly after February.
PN1116
Sorry?‑‑‑It was between February and July.
PN1117
February and July?‑‑‑Yes, it was one of those months in between - - -
PN1118
You've got yourself a bit of swing room there, haven't you?‑‑‑I haven't got my diaries here to know when I was out there.
PN1119
No, no. Well, all right, and Sascha, did he tell you that he didn't do his test?‑‑‑No.
PN1120
No?‑‑‑No, I was told by the secretary.
PN1121
Now do you know how to read this chart that the ACTU have produced?‑‑‑Probably not.
PN1122
I'll show you this chart. Can you look at a copy, if you'd be so kind. It's probably a good idea if you have a piece of paper so you can line it up. It's a bit hard to read?‑‑‑Thanks.
PN1123
All right, do you see those red lines there?‑‑‑Yes.
PN1124
Do you see where it's written, if you can, "Lee Michael Atkinson"?‑‑‑It's very small writing and my eyesight isn't great - - -
PN1125
Yes, I appreciate that the print - - -?‑‑‑But is that one in one of the red lines?
PN1126
Yes, do you see the number 2217?‑‑‑Yes, yes, "Lee Michael Atkinson". Yes.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1127
Yes, can you see that?‑‑‑Yes.
PN1128
All right, and you'll see there that it says, "Not recorded" and then there's your name underneath that, "Robert John McCubbin". Do you see that?‑‑‑Yes, that's correct.
PN1129
And it says that you completed your test in 2 minutes and 49 seconds?‑‑‑That's right. The funny thing is my phone records - - -
PN1130
Yes, okay, I appreciate - - -?‑‑‑- - - which said that I was in - - -
PN1131
I appreciate what you say?‑‑‑No problem.
PN1132
You say, "I didn't do it and I'm not particularly skillful at IT so it's highly unlikely that I would have been able to do it in that in any event". Is that right?‑‑‑Not only that. On my phone records I was actually in Maffra when this test was done.
PN1133
Is that right? All right, have you got your phone records?‑‑‑No, I was told that by Mr Enright.
PN1134
Now I'd like you if you would please go to the name of Moira Anderson - or sorry, Jack Massa's. he's about five lines up from the bottom of that sheet. Do you see that?‑‑‑Okay.
PN1135
The same page as you?‑‑‑Yes, Massa.
PN1136
Do you see him?‑‑‑Yes.
PN1137
If you look along and go through three columns towards the left from the right‑hand side of the page you'll see it says that the test was done in 38 minutes and 26 seconds. Do you see that for Mr Massa?‑‑‑Yes.
PN1138
It's pretty unlikely if someone was doing his test that they would take that long, isn't it?‑‑‑It depends whether his was one of the first tests or not.
PN1139
Well, we know what day his test was done. It was supposedly done on 9 May?‑‑‑It says here the 10th.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1140
Let's go to the next one, Moira Saunderson(sic). Her test is done on 9 May and on 10 May and she does it in 20 minutes and 56 seconds. Do you see that?‑‑‑Yes.
PN1141
Yes. It's pretty unlikely that any experienced person were doing her tests, yes?‑‑‑Look, all I can go in - go on is what the secretary told me or what people had told me themselves.
PN1142
Which people?‑‑‑As I said, Diana, David Eden.
PN1143
Yes?‑‑‑Diana told me about Nick Katsis.
PN1144
Yes?‑‑‑Jayne told me about herself.
PN1145
Yes?‑‑‑I didn't do it myself.
PN1146
Who told you about Mr Massa? Who told you about Ms Saunderson? Who told you about Mr Lazaravski?‑‑‑Can I finish my answer please? Moira - - -
PN1147
I'd appreciate it if you answered my questions?‑‑‑Well, I hadn't finished my answer. I'm sorry.
PN1148
All right?‑‑‑Moira Saureson I was told by the secretary, Peter Lesky I was told by the secretary, Jack Massa I was told by the secretary, Wael didn't know who did his and I was told by the secretary about Sascha.
PN1149
Sorry, just so that we have no misunderstand, who was the secretary?‑‑‑Ms Asmar.
PN1150
I see. Ms Asmar tells you this and you have no idea what day or you do have an idea what day?‑‑‑No, it was just a conversation that we were - that we had.
PN1151
Just a conversation, I see?‑‑‑We had a number of conversations.
PN1152
This isn't just some gossip in the office. This is a direct conversation with Ms Asmar who tells you this. Is that right?‑‑‑That's right.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1153
Yes, all right let's keep going. Mr Lavarovski(sic), he does his test between the 9th and 15th May and he takes 47 minutes and 37 seconds to do his test. Do you see that?‑‑‑I can't see where it is.
PN1154
He gets 28 as his score. Ms Saunderson had got 25 and Mr Massa had got a perfect score of 30. Understand?‑‑‑I can't see it but I take your word for it.
PN1155
Mr Hassan, 15 May. 9 May is when he first enrolls, 15 May he sits the test and he takes some 42 minutes and 13 seconds, and this is the man with the answers. Do you see that?‑‑‑As I said, I take your word for it.
PN1156
UNIDENTIFIED SPEAKER: I think he fails. He did not pass.
PN1157
MR VAN DE WIEL: Sorry, thank you very much. He did not pass.
PN1158
So his answers didn't help him apparently and then he did it again and this time he does it in 2 minutes and 29 seconds. Do you see that?‑‑‑I take your word for it. I can't see it here.
PN1159
THE VICE PRESIDENT: Does this document speak for itself? The witness I don t think can see the detail of it let alone understand or familiar with it.
PN1160
MR VAN DE WIEL: I understand that.
PN1161
THE VICE PRESIDENT: Is there a proposition you wish to put to him?
PN1162
MR VAN DE WIEL: The proposition that I'm advancing to you, Mr McCubbin, is a very simple one. These people did their own tests. No one did it for them?‑‑‑Not according to what I was told by the secretary. The one I - - -
PN1163
I see, so it's - - -?‑‑‑The only one I know that did do that test is Steve Mitchell.
PN1164
Sorry?‑‑‑As I said, I only know what the secretary told me. The only one that I am absolutely sure of that did their own test is Steve Mitchell.
PN1165
On 5 February Mr Mitchell ring you to say that he had done his test and that he had passed?‑‑‑He rang me the day before and told me that he'd failed.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1166
Yes?‑‑‑He rang me back and said that he'd passed.
PN1167
And did you ask him for the answers?‑‑‑I may have, as a joke.
PN1168
Yes?‑‑‑I knew Steve a long time. We joked a lot.
PN1169
Yes?‑‑‑I certainly didn't receive them from him.
PN1170
No, he didn't give you the answers?‑‑‑But it - because it was a joke.
PN1171
You see what happens is it not, sir, is by the end of July, early August you knew you were not going to be invited back to this union. Isn't that right?‑‑‑I wasn't intending to go back to the union irrespective of being invited or not. I had no intention of going back anyway.
PN1172
And certainly what you wanted to do was to destroy the leadership of Ms Asmar. Isn't that right?‑‑‑Absolutely not.
PN1173
And so you and, I suggest, Ms Govan, concoct this story don't you?‑‑‑Absolutely not. As I said, my statement is absolutely true and correct.
PN1174
Yes?‑‑‑All details in there with the corrections are correct. There was no concoction.
PN1175
Yes, okay?‑‑‑And I have no reason to concoct anything as I was never going to run for any role in the position, in any position, and I'd had enough of the union and decided that was it. I have no issue after I got over it, which took me about a week. Had no further issue with Ms Asmar or anyone else in there at all.
PN1176
I see. All right. This suggestion from Mr Enright that he had compulsory powers, did he give you that in any form of correspondence, sir?‑‑‑No, but my partner was there with me, Sandra Porter.
PN1177
And your position is you did or you didn't want to make the statement?‑‑‑My first I did not want to make the statement.
*** ROBERT MCCUBBIN XXN MR VAN DE WIEL
PN1178
Yes. Thank you. Mr Enright then says he has got compulsory powers and then you're prepared to make a statement. Is that your position?‑‑‑He said to me that he has compulsory powers and that he would prefer not to use them. However I decided after hearing that that, yes, I would make the statement.
PN1179
Yes. Thank you.
PN1180
THE VICE PRESIDENT: Mr McCubbin you've answered the questions that were asked of you. Is there anything that you wish to say in relation to the answers arising from the questions and answers that have just occurred?‑‑‑The only thing that I would like to say is that, you know, like I'm being accused of having it in for Ms Asmar. I do not have it in for Ms Asmar. I was disappointed for about a week because there was a lot of conversations that we held in the - that we had in the car, the four of us, whether it be with Nick Katsis as the driver or David Eden - David Asmar as the driver. There was a number of conversations on how the union should run and would run because of my past experience at running the union and all the rest of it, and I was promised that it would be run as a clean union for the members and completely transparent. Now I was only with Ms Asmar because from the minute she was elected it completely changed. My usefulness seemed to be over because I was pushed - I wasn't allowed in some of the meetings, as I had been promised, and you know it was just getting worse with the lies, all the rest of it. And that is - I tried to correct it and I found that I couldn't, and that is a part of the reason of my resignation along with my physical injuries. So I had no problem with Ms Asmar. I am just merely telling the truth, as I was asked by Chris Enright, and that's all there is to it.
PN1181
Thank you for your evidence?‑‑‑Thank you.
PN1182
You can step down?‑‑‑Yes.
And you're excused from further attendance?‑‑‑Thank you.
<THE WITNESS WITHDREW [3.00 PM]
PN1184
MR McCUBBIN: Sorry, do you want these back?
PN1185
MR VAN DE WIEL: Can I just tender those if we would, I think?
PN1186
THE VICE PRESIDENT: Did you wish to tender the - is it an ACTU document, it has two pages?
PN1187
MR VAN DE WIEL: Yes please.
THE VICE PRESIDENT: I'll mark those two pages exhibit 23.
EXHIBIT #23 TWO PAGE ACTU DOCUMENT
PN1189
MR VAN DE WIEL: I think Mr Mann is about to tender them in any event.
PN1190
THE VICE PRESIDENT: Yes, well we can line up the cross‑examination, whatever. Is it convenient we get Mr Mann now?
PN1191
MR VAN DE WIEL: Could we have Mr Rosalion present when he gives his evidence?
PN1192
THE VICE PRESIDENT: Yes, you can.
PN1193
MR VAN DE WIEL: Thank you.
PN1194
THE VICE PRESIDENT: Mr Mann, if you could come to the witness box please? If you could remain standing while my associate administers the oath or affirmation.
PN1195
THE ASSOCIATE: Could you please state your full name and address?
MR MANN: My full name is Scott Andrew Mann (address supplied).
<SCOTT ANDREW MANN, AFFIRMED [3.03 PM]
EXAMINATION-IN-CHIEF [3.03 PM]
PN1197
THE VICE PRESIDENT: Thank you, Mr Mann. Please be seated. Mr Mann, I have a document here on the letterhead "Investigate" and addressed to Mr Enright. Do you have a copy of that document with you?‑‑‑I don't, sorry.
PN1198
Do you now?‑‑‑Yes, I do.
PN1199
So it's a document that says, "Delivered Monday 17th of February 2014". You'll see that it's signed or your name in it. Perhaps you can tell me what it is?‑‑‑It's a report that I authored.
*** SCOTT ANDREW MANN XN
PN1200
Okay, and is the report true and correct?‑‑‑Yes.
PN1201
Now are there any changes or modifications or qualifications you wish to make about the contents of that report?‑‑‑Yes, obviously I've had a conversation with KPMG.
PN1202
Yes?‑‑‑With Richard from KPMG and in our discussions in looking for agreement there were certain matters that were raised via email, and I have a copy of that email.
PN1203
I see, and that's an email from Mr Rosalion dated 1 May at 2.15?‑‑‑Yes, it is. That's correct.
PN1204
And it sets out a number of points of agreement in relation to possible time zone discrepancies?‑‑‑Yes, that's correct.
PN1205
And other matters that are - there are headings for each of the other matters that are addressed?‑‑‑Yes, in relation to deletions in it.
PN1206
Yes, and you agree with the points made in that email?‑‑‑Yes, there have been emails since then.
PN1207
I see. There have been emails since?‑‑‑Yes, there have been email messages since, just seeking further clarification.
PN1208
I see?‑‑‑On points that we could potentially - whether there were points we could potentially agree on in terms of corroborating potential - the potential for corroborating evidence and whether we agree that the evidence that's - that is available is corroboration or not.
PN1209
Should I read the email of 1 May at 2.15 in conjunction with the report of 17 February 2014 to produce a complete picture?‑‑‑I believe the additional email in that - - -
PN1210
And further matters in subsequent emails as well?‑‑‑Yes.
PN1211
Yes, very well?‑‑‑It all happened this morning and since - and, I mean, I arrived from the US Friday.
*** SCOTT ANDREW MANN XN
PN1212
Yes, I see?‑‑‑And it's actually the first time I looked at the report and obviously we - I mean the KPMG report. And so we got to have a conference over that.
PN1213
MR VAN DE WIEL: Has your Honour got a - yes, no one has got a hard copy.
PN1214
Have you got a hard copy?‑‑‑No, I - just as we were - - -
PN1215
THE VICE PRESIDENT: A hard copy of what?
PN1216
MR VAN DE WIEL: I've got a hard copy of 1 May.
PN1217
THE VICE PRESIDENT: Yes.
PN1218
MR VAN DE WIEL: And I think, with respect, your Honour does too.
PN1219
THE VICE PRESIDENT: Yes.
PN1220
MR VAN DE WIEL: Apparently emails were exchanged this morning whilst we were sitting. I've not seen them and I just wondered if there was a hard copy of those so that we could have those as well.
PN1221
THE VICE PRESIDENT: Can I ask you - - -
PN1222
MR VAN DE WIEL: Apparently we have.
PN1223
THE VICE PRESIDENT: Do you have copies of the subsequent emails dated Sunday 3 May? It looks to be an email, one further email that - I'm sorry, there's an email of 2 May from you to Mr Rosalion and an email from Mr Rosalion to - no, I don t think you were copied in on that one which was Sunday. But do you have a hard copy of the subsequent emails?‑‑‑No, I have only an electronic copy. I - - -
PN1224
Can I show you this document then? So I think not the first email in the top of the page but the one from you that commences halfway down the first page. Is that the further clarification that you were referring to?‑‑‑Yes. Yes, this is one of those. Yes.
*** SCOTT ANDREW MANN XN
PN1225
And there were more?‑‑‑There have - yes, since that particular one I have forwarded additional emails. Yes.
PN1226
I see. Well, it appears nobody has hard copies of that here?‑‑‑Yes. I'm sorry, I literally after sending it jumped up and headed to the hearing, or not long after.
Okay, well what I propose to do then is mark the report of 17 February 2014 exhibit 14 in these - sorry, exhibit 24 in these proceedings.
EXHIBIT #24 REPORT AUTHORED BY MR MANN, DELIVERED 17/02/2014
THE VICE PRESIDENT: I propose to mark the email of 1 May from - well, there's an email chain but the substantive email sets out points of agreement in an email of 1 May at 2.15 pm from Mr Rosalion to you. I propose to mark that exhibit 25.
EXHIBIT #25 EMAIL DATED 1 MAY, SENT 2.15 PM FROM MR ROSALION TO MR MANN (PART OF EMAIL CHAIN)
THE VICE PRESIDENT: And I propose to mark the document that I've just received and you've just received, which is an email from you to Mr Rosalion dated 2 May at 9.28, assuming all these times are correct. I'll mark that exhibit 26.
EXHIBIT #26 EMAIL DATED 02/05/2015 FROM MR MANN TO MR ROSALION SENT AT 9.28 AM
THE VICE PRESIDENT: Yes, now Mr Van de Wiel and Mr Champion may have some questions for you.
CROSS-EXAMINATION BY MR VAN DE WIEL [3.11 PM]
PN1231
MR VAN DE WIEL: Sorry, the one that you did this morning, has that been printed out anywhere?‑‑‑No, I don't believe there are any printed copies unless Richard has some.
PN1232
He doesn't have them either. They're on their screen.
PN1233
MR ROSALION: I have electronic copies.
*** SCOTT ANDREW MANN XXN MR VAN DE WIEL
PN1234
MR VAN DE WIEL: Sorry?
PN1235
MR ROSALION: I have electronic copies not - - -
PN1236
UNIDENTIFIED SPEAKER: He could send it to chambers.
PN1237
THE VICE PRESIDENT: If anyone has an electronic copy they can forward it to my associate and we'll get it printed.
PN1238
MR VAN DE WIEL: Did you hear that? And I don't particularly want your electronic address. Can we just give the machine and - - -
PN1239
THE VICE PRESIDENT: I am sure Mr Shaw has it.
PN1240
MR VAN DE WIEL: The electronic address for his Honour's associate. Can we do that and see that before I ask him any questions, because I don't know what they have agreed today.
PN1241
THE VICE PRESIDENT: Yes, very well.
PN1242
MR VAN DE WIEL: Can we just take five minutes?
PN1243
THE VICE PRESIDENT: We will take a few minutes, yes. We will adjourn for a short time while that document is produced.
PN1244
MR VAN DE WIEL: Produced.
PN1245
THE VICE PRESIDENT: We will now adjourn.
SHORT ADJOURNMENT [3.12 PM]
RESUMED [4.39 PM]
PN1246
THE VICE PRESIDENT: I'm not sure where we re up to. I think there were three documents that I have, exhibits 24, 25 and 26 and there was apparently some further documents prepared during the adjournment. What are they?
*** SCOTT ANDREW MANN XXN MR VAN DE WIEL
PN1247
MR CHAMPION: Just in terms of efficiency, your Honour, might I take the witness through these matters, which I might touch on in terms of those documents in what I anticipate will be a fairly brief cross‑examination then the witness should very much have every chance to put in those additional documents, but it may be easier if I contextualise them rather than ‑ ‑ ‑
PN1248
THE VICE PRESIDENT: Okay.
PN1249
MR CHAMPION: I now have at this end of the bar table a number of documents which were produced in that time which I might touch on.
PN1250
THE VICE PRESIDENT: All right, yes.
PN1251
MR CHAMPION: Is that satisfactory to you, Mr Mann, and is that satisfactory to your Honour?
PN1252
THE VICE PRESIDENT: It is.
PN1253
MR CHAMPION: Is your Honour in a position, given the presence of the witness, to soldier on for half an hour or so?
THE VICE PRESIDENT: Yes.
CROSS-EXAMINATION BY MR CHAMPION [4.40 PM]
PN1255
MR CHAMPION: So might I have leave to commence the cross‑examination of Mr Mann?
PN1256
THE VICE PRESIDENT: Yes.
PN1257
MR CHAMPION: Mr Mann, might I start with the email exchange you had with Mr Rosalion yesterday - I beg your pardon, on 1 May 2015, points of agreement. Do you have that?‑‑‑Yes, I do.
PN1258
As I understand it, you conferred with one another and that enabled you to sharpen your collective expert focus on the common ground and perhaps areas of difference?‑‑‑Correct.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1259
That comes out of the areas of possible difference, and that s as high as I put it, that are set out in this I withdraw that. The two issues which emerge from this email of 1 May 2015, the first issue concerns about possible time zone discrepancies?‑‑‑Correct.
PN1260
Do you agree with that?‑‑‑Correct.
PN1261
The second issue in terms of this sharpened focus, as I call it, concerns an issue of overall accuracy of logs and reports?‑‑‑Correct.
PN1262
So there s those two issues and that was the subject of your conferring with Mr Rosalion from KPMG?‑‑‑Correct. We narrowed those.
PN1263
And you've gone on with that process since that time?‑‑‑Correct.
PN1264
But to start on 1 May, if I can, might I start with the second issue which is the issue as to the overall accuracy of the logs and reports produced. Might I start with that issue, sir?‑‑‑Yes.
PN1265
As I understand, that s an issue in terms of what I withdraw that. The very end point of the process perhaps is this spreadsheet which, sir, is exhibit 23 which is the ACTU spreadsheet. That's the very end point of the process and the Commission will be interested in the reliability of the data there recorded. Do you agree with that? Is that a ‑ ‑ ‑?‑‑‑This is one of the documents that I have. The other is the Excel spreadsheet which has since been produced.
PN1266
There s an Excel spreadsheet and, sir, the Excel spreadsheet one has to have regard to that and that s one of the documents which was produced in the adjournment?‑‑‑Yes, that's correct.
PN1267
You say that s another document. If we re looking at that spreadsheet, we also need to look at this spreadsheet. Is that so?‑‑‑Yes. As it s come to light, this spreadsheet was one that Richard was relying on. That spreadsheet was one I was relying on.
PN1268
In terms of the document I ve handed you, I understand that s an extract of a much longer spreadsheet?‑‑‑Yes.
PN1269
This second document?‑‑‑Yes.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1270
You've got two documents, one is the multi-coloured affair which is exhibit 23?‑‑‑Yes.
PN1271
And then Mr Rosalion was looking at that document. That's your understanding? This spreadsheet is another one which were you involved in the generation of this document, sir?‑‑‑This spreadsheet itself? No, I wasn't.
PN1272
Do you know who was involved, who generated it?‑‑‑Only by way of the email thread. It looks like eWorks.
PN1273
EWorks?‑‑‑It was as a result of a ticket that was raised by David McCarra.
PN1274
Might I tender that document now, which is the spreadsheet that you understand was generated by Mr McCarra. Is that right?‑‑‑Yes, an extract of well, I don't know that he generated it.
PN1275
THE VICE PRESIDENT: Who is that person?‑‑‑From the ACTU. He requested that the in an email thread he requested that data recovery he raised a ticket with the vendor to recover data that he was having problems recovering.
PN1276
When did he generate this document?‑‑‑Actually, it does have - I believe 8 January 2014.
PN1277
When did he provide it to you?‑‑‑That will be in the - I believe I have that particular email in front of me. It would have been one of the main sources that I relied on.
PN1278
MR CHAMPION: In terms of 8 January 2014, sir, is this the email you're referring to? I just have one copy of that?‑‑‑Yes. So I believe that was possibly the attachment even to like there was an attachment to the email, but that s the one certainly I'm referring to about his request.
PN1279
So he raises a ticket, to use your language, there, Mr McCarra, to eWorks and that ‑ ‑ ‑
PN1280
THE VICE PRESIDENT: What does that mean?‑‑‑It means he s requested assistance because he doesn't have the administrative rights or correct access to be able to perform the task.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1281
MR CHAMPION: The spreadsheet which you've exerted an extract from and I ve handed to you, you believe that spreadsheet may have been an attachment to the email I ve handed you. Have I got that right?‑‑‑Yes. It s listed Federal Right Log History dot XLS.
PN1282
So doing the best you can, that s its provenance? Might I tender the email of 8 January and the spreadsheet excerpt, sir, together?
PN1283
THE VICE PRESIDENT: I'll get the email from the witness?‑‑‑That's it, sir.
I'll mark the email and the spreadsheet as exhibit 27.
EXHIBIT #27 EMAIL AND SPREADSHEET DATED 08/12/2014
PN1285
MR CHAMPION: Mr Mann, I want to return to this issue which you and Mr Rosalion have an exchange about in the email of 1 May about the overall accuracy of the logs and reports produced. So I'm at that issue. This is an issue am I right the Commission needs to understand is the final data reliable?‑‑‑I don't think it s as singular as that. Richard and I have agreed that it s able to be corroborated.
PN1286
Yes?‑‑‑But there are issues potentially with the data, but it is able to be corroborated particularly at certain times and dates by emails.
PN1287
So if one is looking at the provenance of the data, is that right?‑‑‑Well, if we can t understand the provenance of the data, if we can t go directly to the source and query it, what we believe the direct source of that data is, then the only options are to try and corroborate that through other external sources.
PN1288
So you're looking at the source of the data and then what s happened to it along the line before one gets to these spreadsheets?‑‑‑Or if there s something else that corroborates it, like a witness or, for example, a server another server that is logging what one server does.
PN1289
Is it like a triangulation checking point. It s got an external verification measure that helps you corroborate the data?‑‑‑I refer to them as witnesses in a chain of events, in a transaction, essentially. There s one server that records a transaction and then if another server is party to the transaction then its settings and times, et cetera, are different to the original server.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1290
Might I focus on the data and I think the Commission needs to understand and I want to ask you some questions about, the various players, corporate players, who are involved here. The ACTU buys software which is called Moodle where these records are which produces these records. Is that right?‑‑‑Yes, that s my understanding of how that worked.
PN1291
Then the vendor of the software is eWorks. Have I got that right?‑‑‑I see reference to eWorks. I see reference to NetSpot as well in both the email headers and the emails themselves.
PN1292
Maybe eWorks, maybe NetSpot?‑‑‑Ultimately, NetSpot is sending information.
PN1293
I beg your pardon? I missed that?‑‑‑Ultimately, NetSpot, according to the servers and the naming of the servers, that send emails ultimately.
PN1294
NetSpot - I beg your pardon, did I cut you off?‑‑‑No.
PN1295
NetSpot is an organisation in Adelaide?‑‑‑Yes, that's correct.
PN1296
It hosts a server on which data about these tests may be found?‑‑‑That's correct.
PN1297
If one wanted the very best data as to these tests, is it fair to say one would go to NetSpot? That's where the data would have originally been hosted?‑‑‑That's correct. Ultimate assurance could come from that.
PN1298
In terms of that ultimate reassurance, that s not been available in this case?‑‑‑No, it hasn't.
PN1299
Because no one has been able to see the data at NetSpot?‑‑‑Someone produced something from the data. Richard and myself have not been able to see that data.
PN1300
You haven't had that optimal reassurance in terms of the in terms of your analysis?‑‑‑To be able to do a complete 100 per cent reconstruction we like to have as much of the electronic scene as possible
PN1301
You don't have the electronic scene for NetWorks?‑‑‑No, we haven t imaged a server or done something along those lines.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1302
NetSpot, I beg your pardon?‑‑‑Where the server ultimately is, we didn't have the level of access that usually in a forensic engagement we would like.
PN1303
Then at some point an organisation by the name of Androzic became involved. Is that so? Do you know who Androzic is?‑‑‑That's my understanding in speaking to Richard, yes.
PN1304
What s your understanding of Androzic?‑‑‑First I understood Androzic as opposed to NetSpot, all the references I d seen were to NetSpot so. My first introduction to Androzic was what Richard had told me about.
PN1305
You haven't seen the original data at NetSpot, and I'm sorry if I'm labouring the point, I just wish to understand it. What you don't know, as I understand it, is when a person unknown to you got the data from a source. Is that accurate?‑‑‑Yes, they did.
PN1306
You don't know who did that?‑‑‑Well, through the email chain it s apparent who did that.
PN1307
And who is that person?‑‑‑The email got handed up somewhere.
PN1308
So what we know about that is in the email of 8 January 2014?‑‑‑That's correct.
PN1309
Exhibit 27. When the person ‑ ‑ ‑
PN1310
THE VICE PRESIDENT: There s a number of people referred to here. I don't know who you're talking about. I'll give it back to you. You can indicate who the person is. My associate can hand it back. Are you able to identify the person by looking at that email?‑‑‑Not a person as such; an email address, supportdesk@trainingvc, I believe. Sorry, Best regards, Michael. He identifies himself as.
PN1311
MR CHAMPION: I beg your pardon, Michael?‑‑‑Yes.
PN1312
THE VICE PRESIDENT: Where s the support desk?‑‑‑Trainingvc.com.au.
PN1313
MR CHAMPION: Is that a person at Androzic or NetSpot or you don't know?‑‑‑I don't know.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1314
So Michael of the VC support desk who s produced some data, is that so?‑‑‑Yes, that's correct.
PN1315
You don't know what records Michael was looking at when he generated that data or do you?‑‑‑I believe there is reference to how they went about - the generation there is not in specific detail, Richard and I have discussed. There are potentially settings ‑ ‑ ‑
PN1316
So he has to export from a database information to get it into the spreadsheet that you see attached to the email?‑‑‑That's correct.
PN1317
To export the data there may be different ways he may go about that?‑‑‑There s different things that he may be able to include.
PN1318
He may have a choice of settings?‑‑‑That's right; as to what to include in the data.
PN1319
That may mean you may check different boxes or something of that kind?‑‑‑Yes, check different boxes to include the course history log, for example, which is something that he s attached, information about emails, news feeds, things that users have done on the system.
PN1320
You don't know, Mr Mann, what record, what boxes he checked in producing that data?‑‑‑No, we don t.
PN1321
Does it not flow from that that it s possible that the data he produced was incomplete?‑‑‑If there was other data available in the database and he hadn t selected everything then, yes, we may not be seeing everything.
PN1322
You don't know whether he did or he didn't?‑‑‑No, I do not.
PN1323
For example there when you produced certain information as to Mr Katsis, who s a person we re concerned with in this inquiry - you're aware of that?‑‑‑I am now, yes.
PN1324
It s possible, is it not, sir, that there was other information in that original database as to Mr Katsis which was left behind?‑‑‑I'm sorry?
PN1325
It s possible when Michael ‑ ‑ ‑?‑‑‑Yes.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1326
‑ ‑ ‑ exported the data from the database by reason of the settings he chose to export it, there was other data as to Mr Katsis which was left behind?‑‑‑He s exported what looks like a log, a course log. Now, there - you've got to consider that in a database there s different tables. So there might be tables, so that course log might be complete, but the other tables may not be included.
PN1327
In terms of the other tables, there might be information as to Mr Katsis, for example, in those other tables?‑‑‑Yes. Maybe he s submitted a forum post or something like that. There s other information like that.
PN1328
In terms of the data, is it possible in your professional opinion to have a situation where if Mr Katsis or another person on his behalf, if the test had been done as to Mr Katsis more than once, would that appear in the data?‑‑‑That's one thing I don't think we've reached agreement on. I don't know whether we've tested whether a log would allow you to actually do two successful tests.
PN1329
So you just don't know? When you say you haven't reached an agreement, it may ‑ ‑ ‑?‑‑‑No, no test to the best of my knowledge has been done where two successful tests have been issued and they ve been logged.
PN1330
Have you tried to see if it can be done?‑‑‑I haven't, no.
PN1331
And then in terms of what arise from Michael on 8 January 2014 in terms of that email, you're also told on that very day that there were some technical problems, were you not, in the body of the email there?‑‑‑No, that was discussed. That was discussed between Michael and David and I noted and I found that.
PN1332
I beg your pardon between Michael and David?‑‑‑Yes.
PN1333
David McCarra? He s the gentleman at the ACTU who seems ‑ ‑ ‑?‑‑‑Yes, that's correct.
PN1334
‑ ‑ ‑ to have the carriage of this and Mr McCarra, David McCarra is the recipient of the email. Is that so?‑‑‑It s addressing him, yes, and it s, yes, Hi, David, and it s on the two ‑ ‑ ‑
PN1335
You've reviewed that email as part of your analysis for this case?‑‑‑Yes, I have.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1336
Sorry, I don't have a copy of the email. It refers to technical issues is my recollection?‑‑‑Would you like me to ‑ ‑ ‑
PN1337
Would you be good enough to read out what it says?‑‑‑Yes. So it says:
PN1338
Attachment 2, Federal right certificate
PN1339
well, actually, first
PN1340
attachment 1, Federal right log history is the entire log history of the course. From this log history it is evident that both users Nick Katsis and Lee Michael Atkinson have in dot points viewed the quiz, reviewed the quiz, viewed the certificate. All actions were on 15 Feb 2013. All actions were on 15 Feb 2013. Attachment 2 Federal right certificate log contains all certificates issued on and prior to 17 Feb 2013. Note that these two users are strangely not in these logs. Whilst digging through these emails, I have found that there was a Moodle incident on that date causing periods of unavailability. It is possible that whilst this incident affected Moodle production, it also affected the back‑ups, hence why some data may be missing or excluded. I ve consulted with a colleague and unfortunately we believe this may be the case.
PN1341
So in terms of what you're told in that email, technical problems existed on 15 February which may affect the reliability of the data. Can the Commission draw that from that email?‑‑‑Specifically to attachment 2 if you're referring. They're suggesting at attachment 1 is a ‑ ‑ ‑
PN1342
Is attachment 2 the one that - I beg your pardon?‑‑‑They're suggesting that attachment 1 is the entire log history of the course.
PN1343
Yes. Is attachment 2 is that the one that affects Mr Katsis?‑‑‑Attachment 1 has Mr Katsis data in it and ‑ ‑ ‑
PN1344
What does attachment 2 have?‑‑‑I believe that s the one that those users are not in.
PN1345
So there s a discrepancy between the two?‑‑‑Discrepancy between?
PN1346
Attachment 1 and attachment 2?‑‑‑Certainly it s - they're different data, like there s different data in each of them, and so one does not contain and I don t mean different as in someone missing, I mean it s a different type of data on different tables.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1347
What does that mean in practical terms as to Mr Katsis?‑‑‑I believe they're produced from two different tables, essentially and so Mr Katsis ‑ ‑ ‑
PN1348
Mr Katsis ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ is missing from the certificate log, but he s present in the log history.
PN1349
Does that cast some doubt on the reliability of the data, Mr Mann?‑‑‑In regards to the second attachment, yes, it does.
PN1350
And therefore in regards to Mr Katsis?‑‑‑It would be for the log history, Mr Katsis appears in the log history.
PN1351
But he doesn't appear on attachment 2?‑‑‑No, he doesn't.
PN1352
So in terms of the chain of events, sir, as to these records, can I suggest there s a point of weakness in the records in terms of no one has had a look at the original data which would give you the reassurance you like. Do you agree with that?‑‑‑That would be a preferred method, yes.
PN1353
The second point of weakness is that we don't know what settings Michael chose to export the data from whatever he was looking at?‑‑‑Not the complete settings, no.
PN1354
Therefore a point of weakness in the data is that records may have been left behind?‑‑‑The records may have been left is more to do with what we discussed earlier, which is what happens is there from the complete log history anything missing, being a test that was performed earlier, that wasn't captured or is not being displayed in that data.
PN1355
In that sense if a test was performed earlier and it s not captured in the data, the data may be incomplete?‑‑‑If that was the case, yes.
PN1356
That's a point of weakness in the data?‑‑‑Depending on what they mean by - they're talking about the effect of that outage, but they're talking about it in response to attachment 2 not attachment 1.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1357
Then a third point of weakness, sir, is the discrepancy between attachment 1 and attachment 2 which affects Mr Katsis?‑‑‑One has data in it, so the record clearly existed, and one does not, so a record did not in that table. So there s two tables and potentially separate tables in a database.
PN1358
Using my language, I'm characterising that as a point of weakness in the data. Do you agree with that characterisation of it?‑‑‑It would be better if there was complete records, absolutely.
PN1359
THE VICE PRESIDENT: This document here, which is the two‑page table, is that from the second database? No?‑‑‑The extract ‑ ‑ ‑
PN1360
It s an extract from ‑ ‑ ‑?‑‑‑That's from the sorry, that s from the first document, from attachment 1. The extract here is from attachment 1.
PN1361
This one here, can I ask you about this two-page document?‑‑‑The first I saw of that document was when I had a meeting with Richard.
PN1362
Do you know where it s from?‑‑‑I believe Richard referred to them as assessment records.
PN1363
Do you have a copy of it there?‑‑‑Yes, I do.
PN1364
In relation to Mr Katsis, it says, User not in the system ?‑‑‑Yes, that's correct.
PN1365
What does that tell you about its source?‑‑‑That at the point in time that this source this was produced from this source that user was missing, the data the complete data for that user was missing.
PN1366
I think you said that there were two sources of data and one appeared to be incomplete at certain times whereas the other was incomplete. Mr Katsis was in one, but not in the other?‑‑‑That's correct.
PN1367
Which one was he in?‑‑‑He was in the Federal right log history.
PN1368
Yes. Is that the first one?‑‑‑Yes. That's attachment 1.
PN1369
Attachment 1? He was not in attachment 2?‑‑‑Federal right certificate log.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1370
Yes. So it s not as simple as saying, Well, this might be an extract from attachment 2 ?‑‑‑I don't think so. Looking at the attachment 2 I have has different columns in it.
PN1371
So this might be something different again?‑‑‑It has some of those columns, yes, the way this has been produced.
PN1372
Yes, thank you.
PN1373
MR CHAMPION: Your Honour, I want to move to the second issue, which the experts were sharpening your focus on, sir, which is this time zone discrepancy issue. With reference to the multi-coloured spreadsheet, which his Honour just had you with, Mr Mann, it s got to choose the very first line there, there s a reference to Ms Diana Asmar. Do you have that? It s exhibit 23?‑‑‑Yes, yes.
PN1374
You'll see as I read the document we re told that there s a MYOB number?‑‑‑Yes, that's correct.
PN1375
What does that tell his Honour, if anything?‑‑‑I ve done absolutely no research on that. I assume it s something to do with the MYOB program and accounting package.
PN1376
This may have been produced in MYOB? Whoever produced this chart may have produced it using MYOB software. You don't know?‑‑‑I don't know.
PN1377
And then it says that Ms Asmar enrols in the course on 10 January 2013, but again you're just reading the document in the same way as I am?‑‑‑Yes.
PN1378
But the issue I wanted to take you to, sir, is that going right across towards the right‑hand side of the document there s a completed time on Ms Asmar s test of 1.44 pm on 25 January 2013. Do you have that?‑‑‑Yes.
PN1379
As I understand it, there s an issue as to whether that has to be adjusted for daylight saving time because we re in the heart of summer or not? Are you able to comment on that?‑‑‑In the records that I looked at, that s certainly the case.
PN1380
That 1.44 Australian Eastern Standard Time may in fact daylight saving time needed to be rolled forward by an hour?‑‑‑Yes, depending on how that was produced and who produced that.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1381
In terms of these time records, sir, my understanding is that the time is likely to be the time set up on the server where the records were maintained. Is that so?‑‑‑Yes, that's correct. So the server should log in the database a time which Richard and I have referred to as a base time.
PN1382
So that base time, that s set up by the person putting the settings in on the server at base camp?‑‑‑Yes, yes, it would be relevant to the settings on the server.
PN1383
Doing the best we can, someone at NetSpot is the person likely to have been putting the settings in as to what time what clock was being used?‑‑‑A combination of, but, yes, because the Moodle software can be set to server time for a user s local time as per my discussions with my discussions with Richard because he tested that.
PN1384
In terms of looking for corroborating evidence, which I think was a phrase you looked, if the server is in Adelaide and the person setting it up just uses Adelaide time, you're going to have a half hour discrepancy?‑‑‑Yes.
PN1385
Or a half hour difference?‑‑‑Yes, that's correct.
PN1386
You just don't know what time was pumped in by the person who set the original settings. Is that so?‑‑‑The truth about that is we don't know. Yes.
PN1387
Or someone could have chosen Greenwich Mean Time and then you'd be 10 or 11 hours out?‑‑‑Well, it would be stored as Greenwich Mean Time and then the server yes, it s possible.
PN1388
But your evidence, as I understand it, sir, is on the basis of the discussions with Rosalion that doing the best you can, it appears to you that the time records on the server were GMT, Greenwich Mean Time, plus 11 hours, which is what one adds for daylight saving time. Is that so?‑‑‑No. So the server would have logged GMT and then ‑ ‑ ‑
PN1389
Yes?‑‑-It appears from the corroborative evidence that the server has logged GMT and then when the records have been produced they have been produced at plus 10.
PN1390
Plus 10 and, therefore, if we want to clock time in Melbourne in January, February, we need to add an extra hour for daylight saving?‑‑‑That's correct.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1391
In terms of that corroborative evidence is that a reference to would you be good enough to have a look at this pair of documents, sir? A copy for his Honour?‑‑‑Yes, that s a reference to it.
PN1392
Mr Mann, so I understand this, the first document has the associate s name. Ignore that, but there s a, From noreply@onlinetafevc.com.au ?‑‑‑Yes, that's correct.
PN1393
It appears to be - the text of the email is Nick Katsis has received the certificate of completion for Federal right of entry?‑‑‑That's correct.
PN1394
It says that arrives Friday, 15 February 2013, 4.03 pm?‑‑‑That's correct.
PN1395
That is daylight saving time, as far as we know, or we just don't know? The 4.03 pm there we ‑ ‑ ‑?‑‑‑No, no, we do know. The second document actually tells us.
PN1396
The second document, sir, is, When I did school mathematics, I was told to show my workings. Is this kind of to the untutored email user this is all you see?‑‑‑Yes.
PN1397
The first email, but when you expand the information in the email header, that s what you see in the second document. Is that so?‑‑‑That's correct.
PN1398
In terms of the corroborative evidence and the adjustment for daylight saving time, is that a reference to what you said in the second and third line also?‑‑‑That's correct.
PN1399
It appears that this email is sent on Friday, 15 February 2013, 16:02:39?‑‑‑Received by the mail.actu.org.au that server at that time.
PN1400
I beg your pardon, I didn't ‑ ‑ ‑?‑‑‑Received by mail.actu.org.
PN1401
THE VICE PRESIDENT: That's Australian Eastern Daylight Saving Time?‑‑‑Yes. It says right next to that plus 11 is how that s being interpreted.
PN1402
Yes. Halfway down where it says, 1532 plus 10.30 it looks to be the Adelaide daylight saving time?‑‑‑From a mail server in Adelaide, yes.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1403
A server time in Adelaide? Is that on daylight saving time?‑‑‑(No audible reply).
PN1404
That's a yes?
PN1405
MR CHAMPION: Your Honour, where s the 1532?
PN1406
THE VICE PRESIDENT: It s halfway through the table it says ‑ ‑ ‑
PN1407
MR CHAMPION: I have it. Thank you.
PN1408
THE VICE PRESIDENT: Date Friday, 15 February.
PN1409
MR CHAMPION: So that correlates?‑‑‑Yes. There s a time that it s received or sent and then received.
PN1410
But then, sir, my understanding is there s an anomaly in this in that the highlights are Mr Rosalion s work, but the second highlight is Friday, 15 February 2013, 4:47:48 plus 000. Do you have that, your Honour?
PN1411
THE VICE PRESIDENT: Yes.
PN1412
MR CHAMPION: What s that, Mr Mann?‑‑‑That's something that s we only started looking at this this morning. It s something that Richard and I have been unable to account for. It does not exactly equal either of the other two times nor is it been ‑ ‑ ‑
PN1413
My understanding is that you'll expect that second date stamp to match almost precisely what you see in the first paragraph. Is that so?‑‑‑No, we don t necessarily expect that. We just don't know what he s recording that and why.
PN1414
But 4:47:48 is that - I beg your pardon. Could you explain to the Commission what that is on its face recording?‑‑‑GMT a GMT time.
PN1415
Is it saying that this email is received at 4.47 Greenwich Mean Time?‑‑‑From local host email security appliance.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1416
I hope I'm not being obtuse, but it hits the ACTU server at 4.47 Greenwich Mean Time?‑‑‑It hits a security appliance.
PN1417
That's something in the ACTU somewhere?‑‑‑Where that is, yes.
PN1418
THE VICE PRESIDENT: It s a security in between somewhere?‑‑‑But ‑ ‑ ‑
PN1419
Is it possible that something might be sent from the server in Adelaide at 3.32 pm in the afternoon Adelaide time, hit the security appliance on its way to the ACTU at 12 minutes or so to 5 am Greenwich Mean Time and be recorded as being received in the ACTU server at 4 pm Eastern Daylight Saving Time?‑‑‑In terms of it being possible, it s in front of me.
PN1420
The times match those time records ‑ ‑ ‑?‑‑‑Well, if you added plus 11 to 0447, you don t get that exact time, no.
PN1421
But it s a question of how long it took to travel to the security appliance and ‑ ‑ ‑?‑‑‑That could be one reason.
PN1422
But it doesn't happen instantaneously I take it?‑‑‑Security devices particularly are known for holding things up but ‑ ‑ ‑
PN1423
They're known for?‑‑‑Holding things up, but that is quite anecdotal.
PN1424
Yes.
PN1425
MR CHAMPION: But if one adjusts that 4.47 GMT time by adding 11, am I right in thinking it s hit the security appliance halfway to its destination at 3.47 pm? Have I got that ‑ ‑ ‑?‑‑‑You do the math and that s what you come up with.
PN1426
1547?‑‑‑1547. Correct.
PN1427
1547 and yet the other data suggests back on the multi‑coloured spreadsheet that Mr Katsis is starting a test, if that be accurate, at 3.59 pm, 12 minutes hence. So he s been issued a certificate 12 minutes before he s starting his test?‑‑‑At 3.59 you said? Having said that, that can t be explained. I'm not sure that the exact explanation that was given ‑ ‑ ‑
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1428
It can t hang together?‑‑‑What, sorry?
PN1429
It can t hang together?‑‑‑No, no. That time is certainly an anomaly. In terms of anomaly it s without testing ‑ ‑ ‑
PN1430
THE VICE PRESIDENT: Which entry are you referring to on the multi-coloured spreadsheet?
PN1431
MR CHAMPION: There is material, sir, and what we have on the spreadsheet is a 3.02 pm time. There is other material in Mr Enright s folders that suggest Mr Katsis test time was two or three minutes; that he started at 2.59 pm, finished at 3.02 pm, but it only took him two or three minutes. Then one adjusts that for daylight saving. It s between 3.59 and 4.02 and my forensic point, such as it is, is that depending what inferences one draws from the security appliance ‑ ‑ ‑ ?‑‑‑And the Adelaide ‑ ‑ ‑
PN1432
‑ ‑ ‑ on a hypothesis which was being ‑ ‑ ‑?‑‑‑And the Adelaide time.
PN1433
Yes. How does the Adelaide time factor in?‑‑‑Well, the Adelaide time suggests there that the time it was sent was 1532 plus 10.30.
PN1434
What does that give you, sir? I'm not nimble enough to do that?‑‑‑I have ‑ ‑ ‑
PN1435
Adjust the clocks on ‑ ‑ ‑?‑‑‑I believe this is where I said we have just not done the analysis at all.
PN1436
That's the cross‑examination, your Honour.
PN1437
THE VICE PRESIDENT: Mr Mann, is it feasible for a lawyer to look at the various documentation that you've produced and you've referred to and subject it to a forensic analysis and make sense of that?‑‑‑I believe the closest we are going to get from a reconstruction point of view is this evidence that s available to us in terms of the assurance. There is one more point if I may ‑ ‑ ‑
PN1438
Yes?‑‑‑We focused on this particular one that was in daylight savings time.
PN1439
Yes?‑‑‑There was a user Barry Andrew Hay, I believe. I just picked one randomly out of one who had a certificate in the emails that have this type of data in them.
*** SCOTT ANDREW MANN XXN MR CHAMPION
PN1440
MR CHAMPION: What was the name, sir? I just ‑ ‑ ‑
PN1441
THE VICE PRESIDENT: Brett Andrew Hay?‑‑‑Brett, is it? Brett, sorry. Apologies.
PN1442
MR CHAMPION: Brett Andrew Hay? Yes?‑‑‑Brett Andrew Hay. There you go. So in terms of Brett Andrew Hay, again, the anomaly exists in the middle but the time received equals the time that his test was completed, as in Australian Eastern Standard Time, test completed at 59, I believe, email received at 10.00 - 9.59, email received at 10.00.
PN1443
But the anomaly remains there?‑‑‑It remains.
PN1444
I ought to have tendered the email and the expanded email, sir. I don't believe I did.
PN1445
THE VICE PRESIDENT: That's the document that I ve handed back to the witness, I think.
PN1446
MR CHAMPION: Sorry.
PN1447
THE VICE PRESIDENT: There s an attachment to it and I think I did mark it.
PN1448
MR CHAMPION: There s additional copies of those, your Honour.
THE VICE PRESIDENT: Yes. No, that s a different one. I haven't marked that. That will be exhibit 28.
EXHIBIT #28 EMAIL AND EXPANDED EMAIL
RE-EXAMINATION [5.22 PM]
PN1450
THE VICE PRESIDENT: Mr Mann, you've answered the questions that have been asked of you. Is there anything further you wish to say arising from those questions in relation to the report that you've provided?‑‑‑Particularly just in relation to I guess some of the clarification points.
*** SCOTT ANDREW MANN RXN MR CHAMPION
PN1451
Yes?‑‑‑I referred to attachment 1 as being a course log history and in fact they refer to it as that in what is now exhibit 27. The entire log history of the course from this log history, they go on is evident that both users have both users Nick Katsis and Lee Michael Atkinson have viewed the quiz, reviewed the quiz, viewed the certificate.
PN1452
27 might be the one that you have my copy of?‑‑‑It is the one that I have.
PN1453
Yes?‑‑‑Richard and I did agree that with respect to the accuracy of log records agrees that with database level access he was unable to locate ways to modify or delete the log records. So that is referred to as a log record, I believe. I don't think we re in disagreement on that and that it is difficult to alter or delete those records from a given source, notwithstanding that they talk about themselves in terms of the back‑up, the problem with it. Secondly, is just in terms of what we re talking about with email, we have one server that recorded a base time and we both agree that there s a base time recorded. Then we have a server that recorded a separate server with separate settings recorded another time and so usually I look at those as witness to events.
PN1454
Yes. Any further clarification you ‑ ‑ ‑?‑‑‑Also, at the time that that event when a user completes the course, I have it from David McCarra I ve questioned when that event fires and that event occurs the moment that someone hits a button and completes, they then the certificate is then the email is generated.
PN1455
Yes?‑‑‑The certificate is generated.
PN1456
Thank you for your evidence. You can step down. We'll take back that document ‑ ‑ ‑?‑‑‑I was going to say I apologise for the mess.
PN1457
‑ ‑ ‑ where you have the only copy. Does anyone need any other copies of these or are these all ‑ ‑ ‑
PN1458
There was an attachment to that email?‑‑‑That was the extract.
Yes, the extract was the attachment. Thank you. You're excused. You can step down from the witness box. Thank you.
<THE WITNESS WITHDREW [5.25 PM]
PN1460
MR CHAMPION: Does your Honour wish to deal with Mr Rosalion ‑ ‑ ‑
PN1461
THE VICE PRESIDENT: I'm happy to ‑ ‑ ‑
PN1462
MR CHAMPION: ‑ ‑ ‑ this evening?
PN1463
THE VICE PRESIDENT: Yes.
PN1464
MR CHAMPION: I anticipate in terms of my questions, I'll be very brief.
PN1465
THE VICE PRESIDENT: Very brief? I like that.
PN1466
MR CHAMPION: A passport to favour, I hope.
PN1467
THE VICE PRESIDENT: Yes.
PN1468
MR CHAMPION: I call Richard Rosalion.
PN1469
THE ASSOCIATE: Would you please state your full name and address?
MR ROSALION: Richard Alexander Rosalion (address supplied).
<RICHARD ALEXANDER ROSALION, AFFIRMED [5.26 PM]
EXAMINATION-IN-CHIEF BY MR CHAMPION [5.26 PM]
PN1471
THE VICE PRESIDENT: Thank you, Mr Rosalion. Please be seated.
PN1472
MR CHAMPION: Thank you very much.
PN1473
Mr Rosalion, would you please repeat your full name and your professional address?‑‑‑My full name is Richard Alexander Rosalion and my professional address is 147 Collins Street in Melbourne.
PN1474
What s your profession, sir?‑‑‑My profession is I'm the manager of forensic technology at KPMG.
PN1475
What professional background do you have in relation to that?‑‑‑Prior to KPMG, I worked at Victoria Police. I was a forensic analyst at forensic analyst team leader there and prior to that I had a fairly generalist IT background.
*** RICHARD ALEXANDER ROSALION XN MR CHAMPION
PN1476
How long have you been at KPMG, sir?‑‑‑KPMG for just over two years.
PN1477
Sir, have you been retained to prepare an expert report in relation to this matter?‑‑‑I have, yes.
PN1478
Could you have a look at this document and confirm that s the report which you've prepared?‑‑‑Yes. That's the report.
PN1479
Have you had a chance to review it before ‑ ‑ ‑?‑‑‑Yes, I have.
PN1480
‑ ‑ ‑ giving your evidence? Did you make that report having made all due inquiries concerning this matter?‑‑‑At the time the report was written, I believe I had. Certain other matters have come to light since which were the subject of Mr Mann s cross‑examination, additional emails and additional documents that have since been produced.
PN1481
Does this report contain your professional opinion as to these matters?‑‑‑Whether it s framed so much as an opinion, but certainly the words in there are I stand by those words.
PN1482
Has it been prepared on any independent basis?‑‑‑Yes, yes.
PN1483
I tender the report.
THE VICE PRESIDENT: I'll mark it exhibit 29.
EXHIBIT #29 EXPERT REPORT OF RICHARD ALEXANDER ROSALION
PN1485
MR CHAMPION: Mr Rosalion, since preparing your report, you have conferred with Mr Mann?‑‑‑I have.
PN1486
And, indeed, you've sat in the courtroom while he s given his evidence and listened to his evidence?‑‑‑Yes, I have.
*** RICHARD ALEXANDER ROSALION XN MR CHAMPION
PN1487
In terms of conferring with Mr Mann, might the witness be shown the email which Mr Rosalion has sent dated 1 May 2015 at 2.14 pm - exhibit 25, I'm told. I ve got a copy for the witness. Sir, it s a chain of emails, but it includes an email of yours to Mr Mann, 1 May 2015, 2.14 pm, Australian Eastern Standard Time?‑‑‑Sorry, 1 May?
PN1488
1 May 2015?‑‑‑Sorry, yes. Yes, I see that.
PN1489
Yes, you have that?‑‑‑Yes.
PN1490
The subject line of points of agreement at the very bottom ‑ ‑ ‑?‑‑‑Yes.
PN1491
‑ ‑ ‑ of page 1?‑‑‑Yes.
PN1492
And then there were what I'll call the two areas of sharper focus of the experts over the page?‑‑‑Yes.
PN1493
That's what you've conferred with Mr Mann about?‑‑‑That is.
PN1494
In terms of the overall accuracy of the logs and reports produced, sir, there s you say some things towards the very end of the email:
PN1495
Both parties agree that the reports and logs before the Commission to have been produced, a record must have existed in the form of a record in a database.
PN1496
Without wanting to traverse the same ground, if it s unnecessary, that I went through with Mr Mann, as a matter of your professional opinion do you have any reservations or concerns about the data which was available to you to review?‑‑‑Yes, certainly. So, as Mr Mann, I believe, has already discussed, the data that was produced and has been relied upon to create the various spreadsheets has been generated by Moodle software as it was running on a particular computer system. What we refer to in that point 1 saying that, A record must have existed in the form of a database, those reports that were produced were interpretations of what were stored in that database. Neither Mr Mann nor myself have had access to the records in that database. A further concern ‑ ‑ ‑
*** RICHARD ALEXANDER ROSALION XN MR CHAMPION
PN1497
Do you know what database was looked at?‑‑‑My understanding is that at the time Mr Mann and I conducted our analysis, the Moodle software was hosted on a computer at a company called Androzic, yet at the time the records were generated, the Moodle software was hosted on a computer at a company called NetSpot. So my further issue, I suppose, with the data as it has been produced is there seems to be a long chain of copies and transfers prior to the reports that are actually being produced and we have no evidence as to what those processes were or how they were conducted and, therefore, can t comment on the reliability.
PN1498
THE VICE PRESIDENT: Why do you say it would have been copied and transferred rather than simply a change of name of a company or something as an explanation?‑‑‑Certainly, sorry. NetSpot and Androzic are two different companies. NetSpot is based in Adelaide. Androzic, I believe, is based in Sydney. It s possible that a physical computer was picked up from NetSpot, transported to Sydney and then placed in a different office. That is one possibility. From what I understand of the way these systems work and from what I ve seen, a typical move like this wouldn't involve a physical pick up of a computer and put down somewhere else. It would usually involve an export of the data, a transfer of that data and then a re-import into a new system. I can t comment on if that is what happened or, as I said, if it was a physical move and certainly whatever method was used may impact on the reliability and completeness of those records.
PN1499
MR CHAMPION: You used the word interpretation of data if I heard you?‑‑‑Yes.
PN1500
What do you mean by that?‑‑‑Certainly. So I believe I touched on this in my report, but essentially when a time is recorded by the Moodle software or, indeed, any similar piece of software, the time on the computer server that the event occurs is read by the software so 4 o'clock, you know, as far as the computer is aware. That time is then translated back into GMT and stored within a database and the way it s stored within the database is - I believe it s in a number that represents the number of seconds since 1 January 1970. It s a standard way of storing date and time information. When the reports are produced, that number is interpreted into a GMT date and then translated into whatever time zone the software is set to present the date in and then that is what we see in the spreadsheets. So what we see in the spreadsheets is removed, slightly removed, and translated from what s actually stored.
PN1501
Have you seen the raw records?‑‑‑Not for what s in the ACTU database. I'm aware of the way that the records are stored because I installed Moodle software myself. I examined how it operated and I looked at the underlying storage system in my version of Moodle. I haven't had the opportunity to do that with the ACTU s system and nor has Mr Mann, I believe.
*** RICHARD ALEXANDER ROSALION XN MR CHAMPION
PN1502
In terms of this word interpretation is it more complicated than adding the number of seconds since whatever date in 1970?‑‑‑No, it s not. The complication, I suppose, comes only with the time zone adjustments at the end. There are a number of different settings that affect exactly what time zone the time is presented in. They certainly don t affect the underlying data. So my point as to why I would prefer to see that data, if it was available, is that the question of: is this GMT plus 10 or 11 or 10.5 doesn't need to be asked because we can see the time in its raw format in that GMT time.
PN1503
There was reference to the exporter of the data being a person by the name of Michael on 8 January, or close to 8 January 2014?‑‑‑Yes.
PN1504
Does that square with your analysis or was ‑ ‑ ‑?‑‑‑I d have to look at that specific email again, but I certainly don t disagree with that. To provide a bit of additional context, I don't believe Mr Mann was able to do - the email came from an email address, I believe it was Training VC. Training VC is a product that eWorks provide and that product essentially is Moodle. So Training VC is a brand name that eWorks put on the Moodle software and someone, be it Michael or maybe someone generated the data and provided it to Michael, who ultimately forwarded it on to Mr McCarra, I couldn't say who did it. It seems from that email chain that Michael certainly passed it to David McCarra, but I'm not sure it s clear that he generated it.
PN1505
Sir, are you able to assess what s the danger of what level of danger is there that what Michael exported, if indeed it was Michael, may be incomplete?‑‑‑From the testing that I conducted with the Moodle software, the various logs and records that can be produced from within the software, there s - I think you referred to them before as check boxes and essentially, I think, that s a reasonable description, where a user can choose to export a complete copy of all of the records or they can choose to filter those records based on certain criteria, include a period of time, certain users and not others or certain types of records and not others. The danger, I suppose, to use your word, is that we don't know what settings were used to generate those logs and, therefore, we don't know how complete they are.
PN1506
To go from the general to the particular, is it possible in your professional opinion that records as to Mr Katsis may have been left behind or not exported?‑‑‑I believe in that complete log there was one instance of Mr Katsis performing the test. If Mr Katsis performed the test multiple times, it s certainly possible that those additional times were not included in that export.
PN1507
What, if anything, do you know about the filters that were applied by the person exporting the data?‑‑‑I know nothing about the filters that were applied.
PN1508
I took Mr Mann to that email of 8 January 2014 where there s a reference to some technical issues which affected Moodle on 15 February 2013?‑‑‑Yes.
*** RICHARD ALEXANDER ROSALION XN MR CHAMPION
PN1509
What significance, if any, in your professional opinion do those technical issues have for the reliability of the data?‑‑‑From that email alone, I don't think we re entirely clear what the nature of those issues are. They certainly suggested that certain things were not recorded on that day. Without further information, it s difficult to say, but I could certainly infer from that email that there are records that weren't stored correctly. What types of records they were, the extent of the issue, I couldn't comment on.
PN1510
Do you have any other concerns about the chain of events as to the storage of data?‑‑‑I think I ve explained my concerns with the chain of events. As Mr Mann said, the ideal situation would be that we would have access to the original raw records and, in my opinion, those original records would be the database, the underlying raw records as they existed at NetSpot. Both Mr Mann and myself have only ever interrogated the system at Androzic, so by that very nature we re already one step removed from the original and add to that that we've only ever seen the dates and times and records as they ve been interpreted by Moodle.
PN1511
Might I move to this other possible issue as to time zone discrepancies? Do you have exhibit 28 in the witness box there, which is the email concerning Mr Katsis certificate of completion and the expanded version of the same email?‑‑‑I did have a copy of that. I just can t quite remember if I still have my copy or if I ve passed it on. No, I do have that. Yes.
PN1512
What do you say about the date reference as to the security appliance in paragraph 2?‑‑‑As Mr Mann ‑ ‑ ‑
PN1513
What does that mean?‑‑‑Sorry. As Mr Mann stated, both of us have only discussed and examined this email this morning. I haven't had sufficient time to form a particularly clear opinion. The top line certainly seems to suggest that the date or the time 4.02 or 1602 is in GMT plus 11. My concern is the time recorded by the security appliance certainly doesn't match that time. If the security appliance time is to be treated as accurate, then we would have to treat the other time as inaccurate. Essentially, one or both of those times cannot be correct, in my opinion.
PN1514
Is it accurate to my words, but that things can get caught up in security, that it takes a while for an email to clear security?‑‑‑It s possible and certainly a delay of some sort I mean if you follow those lines from the bottom to the top, there are delays of a couple of seconds and potential clock differences of a couple of seconds between the various lines. To have a jump backwards in time I forget the maths, I think it was about 12, 13 minutes, is not explained in my view about a security appliance holding on to an email.
*** RICHARD ALEXANDER ROSALION XN MR CHAMPION
PN1515
Are you able to explain in your professional opinion the apparent anomaly?‑‑‑The only explanation that comes to mind at this point is that one or both of those servers were configured incorrectly and the time displayed is in fact inaccurate.
PN1516
That's the evidence‑in‑chief.
PN1517
THE VICE PRESIDENT: In the middle of that page where it says, Received from ACTU, there s an entry there, Friday, 15 February, 15:32:38?‑‑‑Yes.
PN1518
Does that look to you to be when a message is received by the server in Adelaide from the ACTU?‑‑‑Yes. So the way these lines are read, if you read from the bottom of the document up, the very first line that says received which is the one, I believe, you're referring to, would have been placed there by the very first mail server that this email went through. By way of analogy, if you imagine a letter being posted, it s put in a post box, taken to the nearest post office. They might stamp that letter to say it was received at this post office. These received lines are the digital equivalent of that post office stamp.
PN1519
Yes, yes?‑‑‑So by reading that line, if the times are to be treated as accurate, it says that the email was received by NetSpot from the Training VC server at 5.32 in Adelaide standard time.
PN1520
1532?‑‑‑Yes. Sorry, 15:32:38 in Adelaide standard time or Central Standard Time.
PN1521
The one immediately above that says, Received from cookie@netspot at 15:33:04 ?‑‑‑Yes.
PN1522
So about 40 seconds later?‑‑‑That's correct.
PN1523
That looks to be another part of NetSpot s server?‑‑‑Yes. So that is an email being sent within NetSpot from one NetSpot server to another.
PN1524
And then the one above that says it s received from NetSpot by ACTU?‑‑‑That's correct.
*** RICHARD ALEXANDER ROSALION XN MR CHAMPION
PN1525
That might be a confirmation of receipt or something, but that appears to be expressed in GMT time, but it appears an inconsistent because it s negative ‑ ‑ ‑?‑‑‑Yes. And that is my, I suppose, concern with this email and I believe similar discrepancies occurred with the other emails is that clearly one or both of those times are incorrect. So either the NetSpot times are incorrect or the ACTU times for the security appliance are incorrect or both. It s simply not possible for both of those times to be correct for those headers to make sense.
PN1526
The top entry it says it s received from mail ACTU. Is that then received by another part of the ACTU?‑‑‑Yes. So that again is received from one ACTU server to another ACTU server.
PN1527
It appears to be around about the same time as the online confirmation was sent to the first page?‑‑‑Yes. So the time on the first page would be taken typically from the time in that first line.
PN1528
Rounded to the nearest minute?‑‑‑Rounded to the nearest minute.
PN1529
Yes?‑‑‑Would typically be how that would be displayed.
PN1530
Yes?‑‑‑So the email client, Microsoft Outlook in this case, that s printing the email and making it look easy to read and hiding all of this mess, I suppose, it s making it easy for you to read by interpreting that time on that first line and displaying it to you in your current time zone.
PN1531
Yes, thank you, Mr Rosalion?‑‑‑That s okay.
PN1532
Thank you for your evidence?‑‑‑Thank you.
PN1533
You can step down and you're excused from further attendance?‑‑‑Thank you very much.
PN1534
MR CHAMPION: There s just one issue which I m reminded of, sir.
PN1535
THE VICE PRESIDENT: You're not; no, stay there.
PN1536
MR CHAMPION: I see the hour.
PN1537
This multi-coloured spreadsheet, are you able to explain the do you know anything about the provenance of that? Mr Mann didn't, but he thought you may have?‑‑‑Certainly. I could provide what I understand to be the provenance. I certainly don t have any first-hand knowledge.
*** RICHARD ALEXANDER ROSALION XN MR CHAMPION
PN1538
Yes?‑‑‑I understand it to be a compilation of various records from the Moodle system and I believe that compilation was performed by the name escapes me. I think it was an individual named Bernadette or something of that nature; possibly at the ACTU or ‑ ‑ ‑
PN1539
Someone within the ACTU? Is that ‑ ‑ ‑?‑‑‑I believe so. It was referred when the spreadsheet was provided to me, it was in a folder called and I'm going to use the name Bernadette because that s what I remember, I could be wrong, in a folder called Bernadette s Spreadsheet or words to that effect. From the actual information that s contained within it, it appears to be compiled from what I ve described in my report as assessment records . So within the Moodle system, there are two - Mr Mann referred to them as database tables that are, I believe, relevant in this investigation. One of those tables is what I ve referred to as log records. The other table is what I ve referred to as assessment records. The assessment records detail at a high level what a user scored on a test and you can see from this spreadsheet it shows, you know, the time started and the time completed for the various components of the test, whereas the log records show each interaction the user has with the system. For instance, if they were to go back a page or forward a page, if they view the course material, when they view their certificate, et cetera. All of that information is stored within the log records.
PN1540
THE VICE PRESIDENT: When you say log records is that s what s referred to as the Federal right log history?‑‑‑Yes, I believe that s that is one example of what I ve referred to as log records, yes.
PN1541
When you refer to the assessment records, is that what s referred to as the Federal right certificate log?‑‑‑No. The certificate ‑ ‑ ‑
PN1542
No, it s a different thing?‑‑‑ ‑ ‑ ‑ log is a different log record.
PN1543
I see. So it s from a different thing again?‑‑‑Yes.
PN1544
MR CHAMPION: Nothing from me, sir.
PN1545
THE VICE PRESIDENT: And nothing further from me either. Thank you, Mr Rosalion?‑‑‑Thank you very much.
You can step down?‑‑‑Thank you.
<THE WITNESS WITHDREW [5.51 PM]
PN1547
THE VICE PRESIDENT: Do you wish to complete the evidence today, Mr Van de Wiel?
PN1548
MR VAN DE WIEL: With the greatest of respect, your Honour, I think we re all not in a position where we d absorb it readily and I ve already indicated that I d seek to call Mr Mitchell, particularly in relation to some of the evidence given by Mr McCubbin. For that reason I think I would prefer to come back.
PN1549
THE VICE PRESIDENT: Come back next Monday?
PN1550
MR VAN DE WIEL: Sorry?
PN1551
THE VICE PRESIDENT: Next Monday?
PN1552
MR VAN DE WIEL: If we come back next Monday, we've already locked that day in, if that s convenient to your Honour.
PN1553
THE VICE PRESIDENT: Yes, it is. So what is remaining in terms of evidence?
PN1554
MR VAN DE WIEL: What s remaining in terms of evidence is Ms Asmar.
PN1555
THE VICE PRESIDENT: Yes.
PN1556
MR VAN DE WIEL: Mr Katsis.
PN1557
THE VICE PRESIDENT: Yes.
PN1558
MR VAN DE WIEL: Certainly Mr Mitchell ‑ ‑ ‑
PN1559
THE VICE PRESIDENT: Mr Mitchell.
PN1560
MR VAN DE WIEL: I may call Mr Atkinson briefly in relation to those other matters that I put to Mr McCubbin, but they will not take very long.
PN1561
THE VICE PRESIDENT: Who was that?
PN1562
MR VAN DE WIEL: Mr Atkinson. You remember I put to Mr McCubbin that he had similar conversations of a similar kind with Mr Atkinson.
PN1563
THE VICE PRESIDENT: Yes.
PN1564
MR VAN DE WIEL: I don't know whether Mr Atkinson is available on Monday or not. I haven't asked and I knew Mr Mitchell would be available on the telephone because I made that inquiry, but he had meetings up in Echuca, so we couldn't call him today. Then there s the question of Mr Enright.
PN1565
THE VICE PRESIDENT: And also the question of Sasha.
PN1566
MR VAN DE WIEL: We've not had any communication with Sasha. As I ve indicated to you earlier, whilst we did as a matter of courtesy represent him at the Royal Commission because he d been a member of the union at the time when this episode arose, I don t even know if he s in the jurisdiction. I mean, when I say jurisdiction I don t Melbourne, I mean Australia. I don't know.
PN1567
THE VICE PRESIDENT: Okay.
PN1568
MR VAN DE WIEL: He s not employed. He doesn't need his right of entry. He just had ‑ ‑ ‑
PN1569
THE VICE PRESIDENT: And you don t propose to call him.
PN1570
MR VAN DE WIEL: At this stage I don t even know where he is so I can t propose to call him, no.
PN1571
THE VICE PRESIDENT: At this stage you don t propose to call him?
PN1572
MR VAN DE WIEL: No.
PN1573
THE VICE PRESIDENT: You're not looking for him ‑ ‑ ‑
PN1574
MR VAN DE WIEL: No.
PN1575
THE VICE PRESIDENT: ‑ ‑ ‑ in order to call him?
PN1576
MR VAN DE WIEL: I could look for him in terms of the last email I haven't seen where he is. I can do that. But if I did call him ‑ ‑ ‑
PN1577
THE VICE PRESIDENT: So there s ‑ ‑ ‑
PN1578
MR VAN DE WIEL: His evidence was at ‑ ‑ ‑
PN1579
THE VICE PRESIDENT: ‑ ‑ ‑ somewhere between three and perhaps five witnesses.
PN1580
MR VAN DE WIEL: Yes.
PN1581
THE VICE PRESIDENT: When can you confirm whether you wish to call Mr Atkinson and whether you wish to cross‑examine Mr Enright?
PN1582
MR VAN DE WIEL: I can do that either by tomorrow evening or otherwise Wednesday morning. I mean ‑ ‑ ‑
PN1583
THE VICE PRESIDENT: Okay. I d appreciate it if you would. Thank you.
PN1584
MR VAN DE WIEL: As soon as I can, I'll make sure that Mr Shaw s secretary contacts the Commission.
PN1585
THE VICE PRESIDENT: Yes, thank you. I d appreciate that.
PN1586
MR VAN DE WIEL: Thank you.
PN1587
THE VICE PRESIDENT: So that evidence appears to be in totality reasonably short.
PN1588
MR VAN DE WIEL: I would have thought it would certainly be done within a morning.
PN1589
THE VICE PRESIDENT: Yes.
PN1590
MR VAN DE WIEL: Yes.
PN1591
THE VICE PRESIDENT: Then we can proceed to hearing submissions from you.
PN1592
MR VAN DE WIEL: Yes.
PN1593
THE VICE PRESIDENT: Yes; and be completed within that day.
PN1594
MR VAN DE WIEL: I would have thought so. Indeed the submissions ‑ ‑ ‑
PN1595
THE VICE PRESIDENT: Yes, very well. Thank you very much, Mr Van de Wiel.
PN1596
MR VAN DE WIEL: Thank you.
PN1597
THE VICE PRESIDENT: We'll adjourn until 10 am next Monday the 11th.
PN1598
MR VAN DE WIEL: Thank you for sitting late.
ADJOURNED UNTIL MONDAY, 11 MAY 2015 [5.55 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
JAYNE GOVAN, RECALLED......................................................................................
CROSS-EXAMINATION BY MR VAN DE WIEL.....................................................
EXHIBIT #11 STATEMENT OF JAYNE GOVAN DATED 16/09............... PN354
EXHIBIT #12 EMAIL FROM JAYNE GOVAN TO MS HUTCHISON DATED 15/02/2013................................................................................................................................. PN357
EXHIBIT #13 TERMINATION LETTER DATED 12/07/2013...................... PN360
EXHIBIT #14 AFFIDAVIT OF MR MCCUBBIN........................................... PN362
THE WITNESS WITHDREW............................................................................ PN365
PEGGY LEE, SWORN........................................................................................ PN368
EXAMINATION-IN-CHIEF............................................................................... PN368
EXHIBIT #15 STATEMENT OF PEGGY LEE............................................... PN380
EXHIBIT #16 SUPPLEMENTARY STATEMENT OF PEGGY LEE DATED 05/09/2014 PN385
CROSS-EXAMINATION BY MR VAN DE WIEL......................................... PN386
THE WITNESS WITHDREW............................................................................ PN753
EXHIBIT #17 FACEBOOK CONVERSATION BETWEEN PEGGY LEE AND MS DE PIETRO................................................................................................................................. PN755
KIMBERLEY KITCHING, SWORN................................................................ PN779
EXAMINATION-IN-CHIEF BY MR VAN DE WIEL.................................... PN779
EXHIBIT #18 STATEMENT OF MS KIMBERLEY KITCHING INCLUDING ANNEXURES.................................................................................................................................. PN794
THE WITNESS WITHDREW............................................................................ PN803
ROBERT MCCUBBIN, SWORN....................................................................... PN804
EXAMINATION-IN-CHIEF............................................................................... PN804
EXHIBIT #19 AMENDED STATEMENT OF ROBERT MCCUBBIN, DATED 13/09/2013.................................................................................................................................. PN828
EXHIBIT #20 SUPPLEMENTARY WITNESS STATEMENT OF ROBERT MCCUBBIN.................................................................................................................................. PN836
CROSS-EXAMINATION BY MR VAN DE WIEL......................................... PN846
EXHIBIT #21 BUNDLE OF TEXT MESSAGES FROM MR MCCUBBIN PN907
EXHIBIT #22 FURTHER TEXT MESSAGES FROM MR MCCUBBIN.... PN910
THE WITNESS WITHDREW.......................................................................... PN1183
EXHIBIT #23 TWO PAGE ACTU DOCUMENT.......................................... PN1188
SCOTT ANDREW MANN, AFFIRMED........................................................ PN1196
EXAMINATION-IN-CHIEF............................................................................. PN1196
EXHIBIT #24 REPORT AUTHORED BY MR MANN, DELIVERED 17/02/2014 PN1227
EXHIBIT #25 EMAIL DATED 1 MAY, SENT 2.15 PM FROM MR ROSALION TO MR MANN (PART OF EMAIL CHAIN).............................................................................. PN1228
EXHIBIT #26 EMAIL DATED 02/05/2015 FROM MR MANN TO MR ROSALION SENT AT 9.28 AM......................................................................................................................... PN1229
CROSS-EXAMINATION BY MR VAN DE WIEL....................................... PN1230
CROSS-EXAMINATION BY MR CHAMPION............................................ PN1254
EXHIBIT #27 EMAIL AND SPREADSHEET DATED 08/12/2014............. PN1284
EXHIBIT #28 EMAIL AND EXPANDED EMAIL........................................ PN1449
RE-EXAMINATION BY MR CHAMPION.................................................... PN1449
THE WITNESS WITHDREW.......................................................................... PN1459
RICHARD ALEXANDER ROSALION, AFFIRMED.................................. PN1470
EXAMINATION-IN-CHIEF BY MR CHAMPION....................................... PN1470
EXHIBIT #29 EXPERT REPORT OF RICHARD ALEXANDER ROSALION PN1484
THE WITNESS WITHDREW.......................................................................... PN1546
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