Yesterday the glitzy marketing material and grand promises were pushed to one side and we were given a glimpse into Labor's heart of darkness.
Remember Shorten's talk of reform? Remember the Bill Shorten who has no time for corruption?
Labor had a chance to prove it meant what it said yesterday as it selected a new Senator to represent Victoria.
It could have proven it had no tolerance for crooks.
It could have shown it was genuine about reform.
It could have made a clear statement about the standards of behaviour it expects of its parliamentarians.
Yesterday was the ideal opportunity for Labor to deliver on its promise to the electorate. It had the chance to show that we the people and our interests come first.
Instead it chose to continue its corrupted system of cronyism and patronage.
Shorten showed his true colours yesterday.
Kimberley Kitching is a disgraceful choice as a member of our federal parliament. She is a law breaker. But because her unlawful acts advanced Shorten's cause, she's been rewarded not punished.
Shorten sent us a message yesterday about his priorities. Remember the way Shorten stacked the Fair Work Commission with union mates when he was industrial relations minister?
Imagine him as Prime Minister.
Here's a reminder of Shorten's idea of Senator material.
From the Royal Commission after its finding the Kimberley Kitching fraudulently completed the Right of Entry tests for Diana Asmar's chosen union official friends.
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(iv) each of Diana Asmar, David Eden, Darryn Rowe, Nick Katsis, Saso Trajcevski-Uzunov and Lee Atkinson should be charged with and prosecuted for making a false statement in an application or recklessly making a false statement contrary to ss 136 and 137 of the Criminal Code (Cth) (Chapter 9); and
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(v) Kimberly Kitching should be charged with and prosecuted for aiding and abetting the contraventions of each of Diana Asmar, David Eden, Darryn Rowe, Nick Katsis, Saso Trajcevski-Uzunov and Lee Atkinson (Chapter 9);
Thanks tio Roger for the tip about the Commission's Judgement, delivered on Friday in Melbourne.
Fair Work Act 2009
s.512 - Application for a right of entry permit
Health Services Union-Victoria No. 1 Branch
(RE2013/426 and others)
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VICE PRESIDENT WATSON
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MELBOURNE, 26 JUNE 2015
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Application by Health Services Union - Victoria No. 1 Branch for Entry Permits – whether right of entry tests were performed by persons other than the officials – if tests were performed by others, who were they performed by – if tests were performed by others, who authorised or had knowledge of the practice – who undertook the test declared to be conducted by Ms Asmar – who undertook the test declared to be conducted by Mr Katsis – who accessed Mr Mitchell's ACTU account – whether inaccurate declarations were made – whether permits should be revoked - Fair Work Act 2009 ss.480, 507, 512, 513, 582, 603, 625.
Here are some of the relevant findings of fact:
[122] Ms Asmar made strong denials of any knowledge, advice, direction or involvement in the practice of ACTU tests being performed on behalf of the relevant applicants. She appeared eager to assert her innocence in very strong terms. She was not subject to cross-examination. Despite asking for phone records of relevant days very early in the proceedings Ms Asmar, through her counsel, asserted very late in the proceedings that they could not be obtained because she had a pre-paid phone plan at the time. It was not explained why this was not disclosed much earlier. Having regard to her evidence and her demeanour giving evidence I am unsure that her evidence can be regarded as reliable.
[123] A similar position arises with respect to Ms Kitching, the former General Manager of the Branch. Her denials were short and firm. They extended to strong denials of conversations and knowledge that appeared clearly established by other witnesses. She was not subject to cross-examination. Her evidence went into great detail about her movements on 15 February 2013. I found the detail of her memory of the day well after the event and the firmness of her statements somewhat implausible. Despite obvious gaps in her account of her activities she maintained that her evidence should establish that her involvement in the performance of tests was impossible. I am not sure that her evidence can be regarded as reliable.
. Six tests were completed on 15 February 2013 from the Branch office. Some or all of them were completed by persons other than the relevant officials in whose names the tests were performed. Mr Lee was overseas at the time. Ms Asmar was out of the office for much of the day. There appears to be no person who may have performed the tests other than Ms Kitching. On the totality of the evidence I find that Ms Kitching performed these tests. Ms Kitching's denials of knowledge and involvement cannot be accepted.
4. I have found that Ms Kitching and Ms Lee performed ACTU tests for others despite the denials of Ms Kitching. Ms Kitching was the most senior employee of the Branch at the time and had a close working relationship with Ms Asmar. There is a body of evidence of Ms Asmar stating that Ms Kitching would be doing the tests on behalf of officials. Both Ms Asmar and Ms Kitching strongly deny such statements. I prefer the accounts of those who gave evidence of the statements. It is inherently unlikely that Ms Kitching would do the tests without the knowledge and authorisation of Ms Asmar. I do not accept their denials as being truthful or reliable. I find on the evidence that the performance of ACTU tests by Ms Kitching and Ms Lee was with the knowledge and authorisation of Ms Asmar.
5. Only Ms Asmar and Ms Kitching know whether they performed Ms Asmar's test. They both state that Ms Asmar did the test and that Ms Kitching did not. However there is evidence that both Ms Asmar and Ms Kitching told others to the contrary at the time. In Ms Asmar's case it appears to have been in the context of encouraging others to facilitate a similar practice with respect to their own tests, which eventuated with respect to a number of officials. In Ms Kitching's case the statements appear to be in the context of office banter, a sense of achievement and the context of Ms Asmar's busy work schedule.
6. I accept the evidence that both Ms Asmar and Ms Kitching made comments to others near the time of the test inconsistent with their evidence before me and the Royal Commission. In particular I rely on the evidence of Ms Porter and Mr Leszczynski. In my view it is highly unlikely that the comments would have been made at or around the time of the tests if they were not true. There was no need for Ms Asmar to state that Ms Kitching had performed her test in order to direct Ms Kitching to perform it for others. There was no need for Ms Kitching to boast about the result of performing Ms Asmar's test, or to state that she did it because Ms Asmar was too busy, if Ms Kitching had not in fact done the test. Ms Kitching's and Ms Asmar's evidence has been found to be unreliable and untruthful in other respects. On all of the evidence I find that it is likely that Ms Kitching performed the test on 25 January 2013 on behalf of Ms Asmar.
7. I have found that Ms Kitching performed the ACTU tests for a number of officials on 15 February 2013. It is inherently unlikely that the ACTU records regarding the time taken to complete the test are incorrect. It is inherently unlikely that Mr Katsis, very inexperienced at the time, accessed the training for three minutes and completed the test in 2 minutes. It is inherently unlikely that Mr Katsis did this within 15 minutes of speaking on his mobile phone in Malvern. On the other hand it is conceivable and indeed likely that Ms Kitching could have done the test in that time frame. On all of the evidence I find that Ms Kitching performed Mr Katsis' test.
8. On all of the evidence and in the light of my findings I find that Ms Kitching accessed Mr Mitchell's account on 15 February 2013.
[269] Making false declarations and failing to complete training that is a requirement for a right of entry permit are serious matters that strike at the heart of the integrity of the right of entry permit system. On the basis of these findings I answer the questions posed in this inquiry as follows:
As to Ms. Diana Asmar (RE 2013/426)
Q1. Whether in order to obtain a ROE permit, Ms. Asmar made an inaccurate declaration for a ROE permit dated 29 January 2013 that she had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 25 January 2013.
A1. Yes.
Q2. Whether the right of entry permit issued to Ms. Asmar should be revoked.
A2. Yes.
Ms Kitching has sworn an oath on the bible. She has adopted two further witness statements which have been tendered and received into evidence.
Ms Kitching agrees that she may have met with Mr Melhem, she was shown diary entries in Mr Melhem's diary.
Ms Kitching states that she was not aware that Mr Melhem's slush fund Industry 2020 was the source of funds for Ms Asmar's campaign.
Ms Kitching has given rambling and non-specific evidence about the vagaries of the Labor Party's Right Wing machinations. Given that she's raised it, I'll kick the can along a bit. Bill Shorten wanted Diana Asmar in the job at the HSU. Bill's old union slush fund financed the campaign. Kimberley and her husband Andrew Landeryou are very close to Bill. Kimberly ends up as General Manager of the HSU No 1 Branch. But she didn't know that Bill's old union mate and his slush fund was the source of the campaign funding. Right.
Mr Stoljar has completed his brief examination.
Counsel for Ms Govan is now cross examining Ms Kitching. Counsel has pointed out the contents of Ms Govan's statement referring to details about Ms Kitching completing the Right of Entry Permit tests. Ms Kitching doesn't simply say Ms Govan is wrong, Ms Kitching said, "She's lying".
Here is a photo of Ms Kitching this morning.
Here is a photo of Ms Kitching in a media appearance after her last stint in the witness box.
Compare and contrast.
Ms Kitching agrees with Counsel that she is a member of the Right faction of the Labor Party.
She agrees that Ms Asmar is a member of the Right faction of the Labor Party.
Kimberley Jane Elizabeth Kitching, the General Manager of the Health Workers Union has sworn an oath on the bible, she has been given a copy of the witness statement she made on 24 August 2014. She has signed the statement, she's made a couple of amendments, has adopted the statement and the statement has been received into evidence.
Ms Kitching explained that "part way through 2013 the union rebranded, the legal name is HSU No 1 Branch - the trading name is the Health Workers Union."
Ms Kitching says she worked on Ms Asmar's campaign but she does not know how Ms Asmar's campaign was funded or who provided the money.
Ms Kitching has explained that the BCOM had an urgent meeting on Sunday 23 December 2012 in order to urgently employ her as the General Manager of the union. As a result Ms Kitching was urgently employed commencing Monday 24 December 2012. Ms Kitching did not apply for the job, there was no job description for the job and no advertisement for the job. After she was emplyoyed the position description was written and the job was advertised after Ms Kitching was employed.
Stoljar - "Ms Asmar hired and fired as she wished?" "Correct."
Mr Stoljar, "I want you to take a moment and think back carefully Ms Kitching, because this issue is very serious. The Right of Entry permit is like a search warrant, it enables someone to enter onto someone's private property, you accept that this is very serious?'
"Yes."
"You have legal qualifications, you have been admitted as a solicitor to the Supreme Court of Queensland?
"Yes."
Mr Stoljar went through the very serious ramifications regarding the Right of Entry permits.
Counsel for Ms Kitching is now saying that he made submissions yesterday that in the scheme of things, in terms of the Royal Commission's brief, this is "not of great moment".
Ms Kitching accepted that the Right of Entry issue is a very serious issue.
Ms Kitching, "I don't have a Right of Entry permit, I have never sat a test, I have never been instructed to sit a test."
"What I can tell you Mr Stoljar is that this did not happen. That conversation did not happen. What I can tell you is that a number of witnesses are running for union elections and they may be motivated by political considerations.
Mr Stoljar, "you heard the evidence of Peggy LEE, she's not running for any office is she?'
No.
Ms Kitching says she "refutes utterly" the proposition that Ms Lee sat a Right of Entry test for any persons. Ms Kitching says "we will be having a full hearing at the Fair Work Commission before Commissioner Watson." Mr Stoljar said, "are you saying this is not a full hearing?"
Ms Kitching says that she has had, since April the opportunity to put evidence on before this Royal Commission. She says she has been awaiting some expert evidence to put before the Royal Commission.,
The Commissioner said, "an officer of the Fair Work Commission has issued notice of intention to file Adverse Findings against certain officers of the HSU - were you named as a person against whom an adverse finding would be made?"
"Yes I was."
Mr Stoljar has produced a summary table of records from Fair Work Australia which Mr Stoljar and Fair Work Australia say are a fair summary of the online activity showing who what where and when the Right of Entry Permit online applications were made. Ms Kitching says that the summary tables are wrong and KPMG (which did the review of the Craig Thomson enquiry) will be engaged to disprove the Fair Work findings.
Mr Stoljar says, "What the records gathere by Fair Work Australia....." he points out that the table shows that a test was sat by someone at such and such a time, it took 9 minutes, then a few minutes later another one, then a gap of 4 hours and someone sat Mr McGovern's test, and by now the time taken to complete the test was 2 minutes, then there was a gap of a few minutes and......then there's another gap and it takes a minute 57 seconds to sit the test. "Did you sit the tests?"
"No."
"What this shows is that someone was taking the tests and they got better and better at it during the day, it took less time for each test."
"Is that the proposition you are putting to me?
Ms Kitching completely denies that she sat the test at all, either for herself or for anyone else.
Mr Stoljar says, "It's not just me who is saying it, there's a whole series of people...
Ms Kitching, "I reject that evidence, I absolutely reject it."
Ms Kitching says that she was not involved in any "strategy" to deny the Assistant Secretary/Treasurer (Ms Flynn) access to the Branch's documents. She states that when she came into the Branch in 22 December 2012 there was bags and bags of shredded documents and in particular she went into Kathy Jackson's former office and found shredded and torn up documents which she has sticky taped together and sent to the Royal Commission.
Ms Kitching is being taken to a series of "pre-meeting meetings" with Ms Asmar, that is meetings preparatory to BCOM meetings. Ms Kitching, "it is entirely appropriate to have pre meeting meetings."
Ms Kitching is now getting agitated. Mr Stoljar states that the pre meeting meetings were an attempt to thwart the democratic intention of the union which elected Ms Flynn as the Assistant Secretary/Treasurer of the union. Ms Kitching says that would offend her personal commitment to democracy.
Mr Stoljar has completed his examination and the Commissioner has invited Mr Van der Weil to examine his client Ms Kitching.
Mr Van der Weil has given a lengthy description of a document he would like drawn to Ms Kitching's attention, the Commissioner said, "I have a slight drowning sensation.......
Mr Stoljar does not object to the tendering of the document.
Mr Van der Weil has asked Ms Kitching to elaborate on her observation that Ms Flynn had a copy of an Excel spreadsheet showing the Branch's finances in detail.
Ms Kitching states that she "found" about a dozen courses for Ms Flynn in order to advance her education in financial matters. Ms Kitching states that Ms Flynn wasn't sure whether or not she had her leaving certificate and that was a necessary qualification in order to complete the course. Ms Kitching states that Ms Flynn felt nervous about doing a financial management course and that nervousness might have caused her to procrastinate.
Compassionate Kitching has now given evidence that Leonie Flynn had a number of personal issues that she confided in Ms Kitching about.
Mr Van der Weil asked Ms Kitching whether or not Ms Flynn had a number of health issues. Ms Kitching said, "She told me that she was taking very strong medication for pain, for migraines and maybe she was taking medication for anxiety. When she went on workcover for stress in August I wasn't really surprised, she was often very nervous and agitated."
Ms Kitching states that she did not engage in any form of bullying "with this woman."
Ms Kitching has been excused from further attendance.
Mr Stoljar has pointed out that the witnesse from yesterday might like to cross examine Ms Kitching. We are all friends now.
