Thanks to 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)

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.

ENDS

The Commonwealth DPP at Senate Estimates in October last year.

In December 2014, the matter of Kimberley Kitching's Commonwealth offences was referred to the CDPP directly by the TURC.   While evidence secured using the coercive powers of a royal commission can't be used directly in a criminal trial, it beggars belief that the people who'd given evidence to the TURC and Fair Work weren't contacted for follow up statements.  Likewise the exhibits so easily available to Fair Work and the TURC.

The CDPP can indict anyone who has committed a Commonwealth offence(s).

What really worries me is Graham Richardson's public statement about Senator Elect Kitching, made on Ben Fordham's show a couple of weeks ago.