Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [[2015] FWC 3359] of Vice President Watson at Melbourne on 26 June 2015 and order on 29 June 2015 [568839] in matter number RE2013/426 and others.

[1] The appellants in this matter, being the Health Services Union - Victoria No.1 Branch (Branch), Ms Diana Asmar, the Secretary of the Branch, and Mr Nick Katsis, the Senior Lead Organiser of the Branch, have applied for permission to appeal and appealed a decision of Vice President Watson issued on 26 June 2015 (Decision) 1 and a subsequent order giving effect to the Decision issued on 29 June 2015 (Order).2 The effect of the Decision and Order was to revoke entry permits which had previously been issued to Ms Asmar and Mr Katsis pursuant to s.512 of the Fair Work Act 2009 (FW Act) in early 2013.

[2] The circumstances in which the Decision came to be made were somewhat unusual and require some explanation. Section 512 authorises the Commission, on application, to issue an entry permit to an official of an organisation if the Commission is satisfied that the official is a fit and proper person to hold the permit. An entry permit allows the holder of the permit to exercise the rights of entry onto the premises of employers which are conferred by Div.2 of Pt.3-4 of the FW Act, and additionally under s.494 the holding of an entry permit is necessary for an official of an organisation to be able to exercise rights of entry conferred by State or Territory occupational health and safety legislation. The holding of an entry permit therefore involves significant rights and responsibilities.

[3] Section 513(1) requires the Commission, in assessing whether an official is a fit and proper person for the purposes of s.512, to take into account a number of specified matters (designated as “permit qualification matters”). The first of these (in s.513(1)(a)) is “whether the official has received appropriate training about the rights and responsibilities of a permit holder”. The Australian Council of Trade Unions (ACTU) has an online training package which has been approved by the Commission as constituting appropriate training for the purposes of s.513(1)(a). It consists of reading materials and a 30-question multiple choice test (ROE test), and a “Certificate of Achievement” (Certificate) is issued to persons who have satisfactorily completed the training.

[4] The Commission’s approved form for an application for an entry permit to be issued to an official requires the application to be made by an elected member of the committee of management of the official’s organisation. The application requires the member of the committee of management to make a declaration that, among other things, to the best of his or her knowledge and belief the proposed permit holder has received appropriate training about the rights and responsibilities of a permit holder, and to identify the name, method and completion date of the training. In addition, as required by rule 51(1) of the Fair Work Commission Rules 2013, documentary evidence of successful completion of the training must accompany the application. The proposed permit holder must also complete a declaration that, among other things, he or she has received appropriate training about the rights and responsibilities of a permit holder and provide the same details of this.

[5] The application for Ms Asmar to be issued with an entry permit was made by Ms Rhonda Barclay, then the Junior Vice President of the Branch, and dated 29 January 2013. It was accompanied by the necessary declaration from Ms Asmar. Ms Barclay and Ms Asmar declared that Ms Asmar had completed the ACTU online training course on 25 January 2013, and attached the Certificate issued by the ACTU. Mr Katsis’ application was made by Mr David Eden, then the President of the Branch, and dated 20 February 2013. Mr Eden and Mr Katsis declared that Mr Katsis had completed the appropriate training and attached the ACTU Certificate. Because the application did not provide the required details of the training, it was returned to the Branch by the Commission’s Regulatory Compliance Branch for rectification. On 22 March 2013 an amended application was lodged in which Ms Asmar declared that Mr Katsis had completed the ACTU online training course on 15 February 2013 and attached again a copy of the Certificate issued to Mr Katsis.

[6] Entry permits were subsequently issued to Ms Asmar and Mr Katsis on the basis of the information provided in the respective applications and the accompanying declarations and documents. Entry permits were also issued to a large number of other Branch officials at or about the same time.

[7] On 31 July 2013 Ms Leonie Flynn, then the Assistant Secretary of the Branch, sent a letter to the General Manager of the Commission in which she alleged that a number of the Branch’s officials, including Ms Asmar and Mr Katsis, had not themselves completed the ROE test component of the ACTU training course for the purpose of obtaining their entry permits, and that the ROE tests had been undertaken by another employee of the Branch, Ms Kimberly Kitching. This caused inquiries to be instituted by the Commission’s Regulatory Compliance Branch. Arising out of these inquiries Mr Chris Enright, the Director of the Regulatory Compliance Branch, issued notices of potential adverse findings to a number of officials of the Branch, including Ms Asmar and Mr Katsis. On 9 May 2014 the President of the Commission issued a direction pursuant to ss.582(4)(d) and 625(d) transferring the matters to Vice President Watson and directing him to inquire whether the entry permits for a number of the Branch’s officials, including Ms Asmar and Mr Katsis, should be revoked as well as whether applications for entry permits for two other Branch officials should be refused. On 18 July 2014 Vice President Watson issued a document entitled “Terms of Inquiry” which set out 20 questions which he considered required determination in the matter.

[8] Ms Asmar and Ms Kitching subsequently instituted proceedings in the Federal Court of Australia challenging the jurisdiction of the Commission to conduct such an inquiry. They were initially successful (on 28 October 2014) in obtaining an interlocutory injunction restraining the Commission from proceeding with the inquiry. 3 However their application was ultimately dismissed by the Court (Beach J) on 29 January 2015 in Asmar v Fair Work Commission.4

[9] The allegation that Ms Kitching had undertaken ROE tests on behalf of other Branch officials came to the attention of the Royal Commission into Trade Union Governance and Corruption (Royal Commission), and was the subject of extensive evidence. In its Interim Report issued on 15 December 2014, the Royal Commission found that Ms Kitching had undertaken ROE tests for a number of Branch officials including Ms Asmar and Mr Katsis.

[10] The hearing before Vice President Watson occurred on 23 April and 4 and 11 May 2015. As earlier stated, the Decision was issued on 26 June 2015 and the Order on 29 June 2015.

The Decision

[11] The critical factual conclusions in the Decision relevant to this appeal were that Ms Kitching, who at the time the entry permit applications were made was the General Manager of the Branch, undertook the ROE test on behalf of Ms Asmar on 25 January 2013, that Ms Asmar’s declaration to the effect that she had completed the ACTU training course on that day was consequently inaccurate, that Ms Kitching had undertaken the ROE test on behalf of Mr Katsis on 15 February 2013, and consequently that Mr Katsis’ declaration to the effect that he had completed the ACTU training course was also inaccurate. 5 These conclusions were in the nature of inferences drawn on the basis of a number of findings of primary fact, the most significant of which may be summarised as follows:

(1) Ms Asmar had told the Branch’s organisers that Ms Kitching would undertake their ROE tests to obtain their entry permits.

(2) Ms Asmar told other persons that Ms Kitching did her ROE test.

(3) Ms Kitching told another person that she was doing Ms Asmar’s ROE test.

(4) Ms Kitching told others she was doing the ROE test for other organisers.

(5) Ms Kitching on a number of occasions boasted about the results she achieved whilst doing the ROE tests at different times.

(6) That Ms Kitching was doing the ROE test on behalf of other organisers was widely discussed amongst the Branch staff.

(7) Three Branch officials at the relevant time admitted they had not done their own ROE tests.

(8) One former Branch employee admitted to having undertaken ROE tests for two other officials at Ms Asmar’s urging.

(9) The ACTU computer records for the online course showed that on 15 February 2013, tests were done for seven Branch officials (including Mr Katsis), no two tests were done at the same time, and the time taken to complete the tests became progressively shorter during the day.

(10) The data for Mr Katsis’ test showed that the test was done in his name at 3.59pm on 15 February 2013 and took two minutes to complete.

(11) At the time Mr Katsis’ test was done, he had no previous experience in a union position, had not had any experience in accessing work sites and appeared to lack the knowledge and skills for his position. 6

(12) Mobile telephone records indicated that Mr Katsis could not have been at the Branch’s South Melbourne office, where he said he did the ROE test, at the time the ACTU computer records indicated that the test was done.

[12] Vice President Watson ultimately decided to revoke the entry permits issued to Ms Asmar and Mr Katsis on the basis that “[m]aking 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”. 7

Submissions

[13] The appellants submitted that the Decision was vitiated by a number of errors of fact and law. The appellants advanced five contentions of legal error, any one of which, if upheld, would require the Decision to be quashed and the matter reheard without the need to consider any issue of factual error. The five contentions of legal error may be summarised as follows:

(1) Vice President Watson had regard to the findings of the investigation carried out by Mr Enright and the Royal Commission, and in doing so took into account irrelevant considerations and failed to properly exercise the independent decision-making task required of him by the FW Act (appeal grounds 4 and 5).

(2) There was a failure to perform the statutory task, in that the entry permits of Ms Asmar and Mr Katsis were revoked without any consideration of their fitness and propriety as required by s.512. The power to revoke in s.603 of the FW Act should, in relation to entry permits, be understood as requiring consideration of the same statutory criterion as for the issue of an entry permit under s.512, namely fitness and propriety to hold such a permit (appeal grounds 6 and 7).

(3) As an ancillary contention to (2) above, there was a failure to take into account Ms Asmar’s curriculum vitae, which was evidence concerning her character and relevant to a consideration of her fitness and propriety to hold an entry permit, and a failure to inquire as to Mr Katsis’ good character (appeal grounds 8 and 9).

(4) The appellants were denied procedural fairness in two respects. First, regard was had to witness statements and transcript of the cross-examination of witnesses in the Royal Commission, but there was never an identification of what matters in that material were regarded as relevant so that the appellants had a proper opportunity to make submissions about it. There was a general indication given that regard would be had only to material which was relevant to the inquiry being conducted by Vice President Watson, but this turned out not to be the case. The example given by the appellants of this concerned Mr Robert McCubbin, a former official of the Branch who gave evidence adverse to the appellants. He was found in the Decision to have “presented as a genuine grass roots union official with a high level of personal integrity … very well regarded by others at the Branch, even after he resigned from the Branch”. 8 This finding was used to justify reliance on Mr McCubbin’s evidence in preference to that of Ms Asmar and Mr Katsis, but appears to have been founded on evidence given to the Royal Commission. The appellants were not put on notice about this. Second, an adverse inference was drawn against Ms Asmar on the basis that she had not provided phone records for 25 January 2013, as required, and had not given evidence as to why she had not provided them. In fact her counsel at the opening of the hearing had explained that they were not available and why, and the matter was not taken any further (appeal ground 9).

(5) By reason of his prior exposure to prejudicial material in the Royal Commission transcript, a fair-minded lay observer might reasonably apprehend that Vice President Watson might not have brought an impartial mind to the resolution of the matter before him (appeal ground 10).

[14] The appellants submitted that the Decision was attended by three factual errors, any one of which was sufficient to require the Decision to be quashed. The first was that there was no proper basis to find that Ms Asmar did not do her own ROE test and knew of and authorised a practice whereby Branch officials did not do their own ROE tests, and to not accept her evidence to the contrary (ground 1). In particular, it was submitted that in cumulatively relying on a number of matters to reach his conclusion, Vice President Watson erred by relying on specific matters which were not sufficiently probative or reliable to be taken into account for that purpose, namely:

• the evidence of Mr Craig McGregor that Ms Kitching said to him in early 2013 “Did another one. Got 100% again” did not support the adverse findings against Ms Asmar because it was vague and the connection to the matters alleged against Ms Asmar was highly circumstantial;



• the reliance on the evidence of Ms Jayne Govan, Ms Deidre McIntosh, Ms Flynn, Mr McCubbin and Ms Peggy Lee to the effect that it was common knowledge that Ms Kitching completed tests for others did not form a basis for the adverse findings because it was no more than evidence of an office rumour and was unreliable as to the truth of its contents;



• in the absence of the source data, the ACTU computer data was insufficiently probative and reliable to demonstrate the times at which Branch officials took their ACTU tests on 25 January and 15 February 2013;



• reliance on Mr McCubbin’s evidence that Ms Kitching did the ROE tests of a number of officials including Ms Asmar and Mr Katsis was misplaced, given that he said that Ms Kitching had done Mr Eden’s test when Vice President Watson found that Ms Lee had done it, and further that there was no finding that other officials identified by Mr McCubbin had not done their own tests;



• reliance was placed upon the fact that the witnesses called by the Branch (particularly Ms Asmar and Ms Kitching) were not the subject of cross-examination, when this was the result of the inquisitorial approach adopted by the Commission at the hearing; and



• Mr Katsis’ phone records did not provide a reliable basis upon which to conclude that he could not have been at the Branch’s office to undertake the ROE test.

[15] The second factual error was that there was no proper basis to find that Mr Katsis did not do his own ROE test as part of a practice whereby Ms Kitching did the tests of other officials. In that respect, the appellants relied on the same particulars as for Ms Asmar (ground 2). The third error (which substantially repeated the third particular of the first error concerning Ms Asmar) was that it was erroneous to rely upon the ACTU computer data in circumstances where the joint evidence of the experts, as characterised at paragraph [147] of the Decision, was that they were “unable to state with certainty that the ACTU data is reliable as they ha[d] not had access to the source data in order to test that” (ground 3). In this connection the appellants referred to the lack of source records to explain the computer records ultimately produced by the ACTU.

[16] The appellants submitted that permission to appeal should be granted because the appeal raised issues of general importance, in particular the extent to which it was permissible for the Commission to have regard to the evidence before and findings of a Royal Commission, and because the Decision was attended with sufficient doubt, involved jurisdictional error, and would cause substantial injustice if not corrected. It was submitted that the appeal should be upheld and the Decision quashed, and that Ms Asmar’s and Mr Katsis’ applications for entry permits should be re-heard.

New evidence in the appeal

[17] The appellants sought to adduce new evidence at the hearing of the appeal. Firstly, they were allowed to read the affidavit of Mr David Shaw, a partner at the appellants’ solicitors, Holding Redlich, affirmed on 8 September 2015. That affidavit outlined which persons gave evidence about relevant matters before the Royal Commission, the Royal Commission transcript references for that evidence, and the procedural means by which that evidence was admitted in the Commission proceedings before Vice President Watson.

[18] Secondly, the appellants were allowed to read one paragraph of an affidavit sworn by Ms Asmar on 9 September 2015. This paragraph set out the evidence she would have given at first instance, if asked to do so, as to the reason why she could not provide the Commission with her mobile telephone records for 25 January 2013 - namely that she was using a prepaid phone at that time. The balance of the affidavit concerned evidence Ms Asmar would give on a rehearing of the matter if her appeal was successful. It was provisionally received on that basis.

Consideration

Permission to appeal

[19] The appeal raises an important and novel issue concerning the circumstances in which the power in s.603 of the FW Act may be utilised to revoke an entry permit issued under s.512. The Decision also contains findings of fact of considerable gravity which are sought to be impugned in the appeal. For these reasons, we consider it appropriate to grant permission to appeal.

First contention of legal error - Royal Commission findings etc.

[20] It may be accepted that if Vice President Watson had not independently made his own findings about the matters before him but had simply relied on the findings of the Royal Commission and/or the Delegate, or had been materially influenced by those findings, then that would constitute a failure to exercise his statutory task of exercising jurisdiction under the FW Act. However, we do not consider that on any fair reading of the Decision that is what he did. To the contrary, it is apparent to us that the evidence before this Commission was carefully evaluated in the Decision and independent findings were made in relation to that evidence. The appellants referred to paragraphs [19]-[20], [225], [227] and [249] as demonstrative of the proposition that Vice President Watson had relied on the findings of the Royal Commission or the Delegate. We disagree. Although the Decision quotes the Royal Commission findings concerning Ms Asmar at paragraphs [20] and [225] and the finding concerning Mr Katsis at paragraph [249], there is no indication that those findings formed any part of Vice President Watson’s chain of reasoning, and they appear to have been recited merely as background. Appeal grounds 4 and 5 are therefore rejected.

Second and third contentions of legal error - basis upon which s.603 revocation power may be exercised etc.

[21] The second and third contentions of legal error involve a consideration of the nature of the power exercised by Vice President Watson in making the Decision and Order. As was made explicit in the Order, the power being exercised was that contained in s.603 of the FW Act, which relevantly provides:

603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);

(c) a decision under Part 2-5 (which deals with workplace determinations);

(d) a decision under Part 2-6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).

[22] What constitutes a “decision” for the purpose of s.603 is provided for in s.598 as follows:

598 Decisions of the FWC

(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.

(3) A decision of the FWC that is described as an order must be made by order.

Note: An example of a decision that is described as an order is a bargaining order.

(4) A decision of the FWC that is not described as an order may be made by order.

[23] The power in s.603 is a general power to revoke decisions made under the FW Act, subject to the exceptions identified in subsection (3) (none of which is applicable here). In Asmar v Fair Work Commission 9 the Federal Court (Beach J) determined that this general power was applicable to decisions to issue entry permits, and was not excluded in its operation in this respect by the specific powers to revoke entry permits residing in ss.507, 508 and 510.10 In reaching that conclusion the Court made two observations about the nature of the power in s.603 as it may apply to decisions to issue entry permits. The first was that the general power conferred by s.603 (in contrast to the specific powers for revocation of entry permits in ss.507, 508 and 510) is expressed as a power to revoke a decision, although it embraces the power to revoke an instrument made as a consequence of a decision. The Court said:

“[67] First, s.603 refers to the revocation of a “decision” of the Commission. Contrastingly, in terms of the language used, Div 5 of Pt 3.4 refers to the revocation of an entry permit. In concept, there is a distinction; the entry permit is the manifestation or implementation of the prior decision. But s.598 throws further light on the distinction. Section 598(2) provides that a “decision” includes the decision to make an entry permit in the particular terms decided. The note to s.603(1) accordingly makes it plain that revocation of an entry permit is also embraced by s.603(1) as well as the “decision” itself, although the language of s.598(2) is not as felicitous as it should have been to make this plain. But it is appropriate to note that in terms of the language used in s.603, as compared with the language used in Div 5 of Pt 3.4, there is a difference in form at least.”

[24] Second, the Court said that the power in s.603 was at least exercisable to revoke a decision that was “flawed at inception” 11, “ought never to have been made”12 or “based on an innocently or fraudulently procured incorrect factual foundation”13, although the Court went on to conclude that s.603 could also be exercised where circumstances had changed since the original decision was made.14 In this respect, the conclusion of the Court was consistent with the way in which the revocation power in s.603 and its statutory predecessors has historically been used, as summarised by this Commission (Ross J, President) in Grabovsky
v United Protestant Association15 (footnotes omitted):

“[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.

[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so.”

[25] Having regard to these statements about the nature of the s.603 revocation power, with which we agree, we do not accept the appellants’ submission that, by necessary implication, the power in s.603 is exercisable in respect of a decision to issue an entry permit only by a full re-assessment of the “fit and proper person” criterion in s.512 and the associated permit qualification matters required to be taken into account under s.513. Section 603 confers a broad discretionary power which is exercisable in relation to a range of different types of decisions and in a range of circumstances, and it is difficult therefore to draw the necessary implication contended for by the appellants. The specific powers to revoke entry permits in ss.507, 508 and 510 specify the circumstances which precondition the exercise of those powers, and in no case is a re-assessment of the permit holder’s fitness and propriety one of those conditions. For example, the power in s.507(1)(c) to revoke an entry permit is exercisable on application by an inspector or other prescribed person, and s.507(2) requires that in deciding whether to exercise the power, the Commission must take into account the permit qualification matters in s.513(1) - but does not require that the Commission re-assess whether the permit holder is a fit and proper person (although the Commission could undoubtedly take this into account in the exercise of its discretion). The revocation power in s.508(2)(c) may only be exercised by the Commission if there has been a misuse of entry rights under s.508(1), and the obligation in s.510(1) to revoke or suspend an entry permit (subject to s.510(2)) arises if any of the events specified in s.510(1) occur, without there needing to be any finding that the permit holder is no longer a fit and proper person to hold an entry permit. The general power to revoke decisions in s.603 would not be construed as requiring, in the case of entry permit decisions under s.512, that it be exercised only by reference to the fit and proper person test in that section where the specific powers to revoke entry permits did not require the application of that test. That conclusion is fortified by the fact, as observed by Beach J, that s.603 is expressed as being directed at the revocation of decisions, notwithstanding that it may also be utilised with respect to instruments issued as a concomitant of a decision. This makes inapt the implication that it would pick up the test in s.512 for the issue of an entry permit, being an instrument of the type to which the statutory note to s.603(1) and s.598(2) refer.

[26] The appellants made reference to s.33(3) of the Acts Interpretation Act 1901 (Cth) in their submissions, but did not directly suggest it was applicable to the power to issue permits under s.512. Section 33(3) provides:

(3)  Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

[27] For completeness, our view is that s.33(3) has no application to s.512 (noting that in Asmar v Fair Work Commission the Court did not express a final view about this). 16 Under s.2(2) of the Acts Interpretation Act, the application of that Act to another Act is subject to a contrary intention. The existence in the FW Act of specific revocation powers concerning entry permits in ss.507, 508 and 510 which specify the conditions upon which the powers may be exercised, and the existence of the general and unconfined power to revoke decisions in s.603, exhibits a statutory intention contrary to the application of s.33(3) of the Acts Interpretation Act to s.512.

[28] We consider that there is a proper justification to exercise the power in s.603 to revoke a decision where that decision, in some significant respect, was based upon an incorrect factual premise. In Re Rubber, Plastic and Cable Making Industry Award 1972 Gaudron J (then a member of the Australian Conciliation and Arbitration Commission) expressed the view that “[w]here an award is obtained without disclosure of material facts, undoubtedly it is prima facie desirable that it be set aside … Only when special or extraordinary circumstances are shown to exist would such an award be allowed to remain”. 17 In the case of a decision to issue an entry permit under s.512, we consider that it would be open for the Commission to exercise the discretion to revoke that decision if it became apparent that, in relation to one or more of the permit qualification matters specified in s.513(1), the decision had been made on incorrect facts. It would not be necessary in those circumstances to make a finding that the holder of the entry permit was not a fit and proper person to hold the permit.

[29] The Decision plainly does not contain any findings that Ms Asmar and Mr Katsis were not fit and proper persons to hold entry permits. For the reasons we have set out, we do not consider that it was necessary to make such findings in order to revoke the decisions to issue Ms Asmar and Mr Katsis with entry permits, and to revoke the permits themselves, under s.603. In paragraph [269] of the Decision, Vice President Watson said: “[m]aking 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”, and on that basis proceeded to the conclusion that Ms Asmar’s and Mr Katsis’ entry permits should be revoked. We read that passage as a statement of the conclusion that the decisions to issue permits to Ms Asmar and Mr Katsis, having been made on the basis of information in declarations that was untrue and on the incorrect premise that Ms Asmar and Mr Katsis had completed training of the type specified in s.513(1)(a), should be revoked in the interest of the integrity of the entry permit system. We do not consider that this conclusion involved any legal error in the exercise of the s.603 revocation power. It also follows that no legal error arose because Vice President Watson did not, in reaching that conclusion, take into account the contents of Ms Asmar’s curriculum vitae.

[30] The revocation power having been exercised on this basis, it might be said that the Branch is entitled to have its applications for Ms Asmar and Mr Katsis to be issued with entry permits re-determined afresh. This would require a re-assessment of their fitness and propriety to hold entry permits under s.512 based on the facts as they are now known. This is a matter to which we will return at the end of this decision.

[31] Appeal grounds 6, 7 and 8 are rejected.

Fourth contention of legal error - alleged denial of procedural fairness

[32] We are not satisfied that the appellants were denied procedural fairness by reason of the fact that there was no precise identification of the matters in the transcript of proceedings in the Royal Commission which were regarded as relevant. The “Terms of Inquiry” upon which the hearing proceeded clearly identified to the parties the issues for determination. The appellants, who had the benefit of a high level of legal representation at all relevant times, were in a position to assess what parts of the transcript of the Royal Commission proceedings were relevant to those “Terms of Inquiry”. It would have been perfectly obvious to the appellants that their credit as witnesses, as well as the credit of witnesses who gave evidence adverse to their interests, was a relevant and indeed critical issue in the proceedings, and accordingly that material before the Royal Commission which went to credit in that respect was liable to be taken into account. We do not consider that it was necessary in those circumstances for Vice President Watson to identify for the benefit of the appellants every part of the evidentiary material before the Royal Commission which he considered to be potentially relevant in that respect.

[33] The appellants have in any event only identified one finding in the Decision as having been based on material before the Royal Commission which the appellants could not reasonably have understood to be liable for consideration in the proceedings in this Commission, namely that Mr McCubbin “presented as a genuine grass roots union official with a high level of personal integrity … very well regarded by others at the Branch, even after he resigned from the Branch”. 18 We do not consider that it has clearly been established by the appellants that this finding was not based on evidence adduced in this Commission. How Mr McCubbin “presented” appears to be a reference to his demeanour in giving evidence; likewise the references to him being “genuine” and having “a high level of personal integrity” appear simply to be an assessment of his overall evidence. It is not entirely clear what was meant by describing Mr McCubbin as a “grass roots” union official (as distinct from some other kind of official), but if it was intended to mean that Mr McCubbin had acted as an official or employee of the Branch in various capacities over a long period of time, and was also a long-term member of the Branch, that was clearly established by evidence adduced at first instance (and was not in dispute).19 That Mr McCubbin was well regarded by others at the Branch even after he resigned could readily have been inferred by evidence that other officials of the Branch wanted him to retract his resignation from the Branch and endeavoured to persuade him to do so.

[34] The second aspect of the appellants’ contention that there was a denial of procedural fairness related to the following passages in the Decision:

“[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.
…
[213] In terms of documentary evidence, the Regulatory Compliance Branch made a number of requests for the mobile telephone records of Ms Asmar for 25 January 2013 during the course of its inquiries. The records were not provided to the Regulatory Compliance Branch. On 3 March 2015 [sic] I directed that Ms Asmar produce her phone records for 25 January 2013. At the hearing on 23 April 2015 counsel for Ms Asmar advised that Ms Asmar was using a prepaid phone and, accordingly, there are no records available for production. Ms Asmar did not address this matter in her evidence.”

[35] The statement in paragraph [122] of the Decision that Ms Asmar’s phone records on relevant dates were requested “very early in the proceedings” is confirmed by the documents in the Commission’s file, which disclose the following:

(1) In a letter dated 25 September 2013, the Branch was requested to examine its records which could identify the whereabouts and movements of a number of Branch staff at times relevant to their ROE tests.

(2) On 26 November 2013 the Commission received a general written response from the Branch to identified allegations concerning the performance of ROE tests by Branch officials including Ms Asmar. This was supported by a statutory declaration made by Ms Asmar. The Commission then requested the Branch, in a letter dated 27 November 2013, to provide copies of all records examined in preparing the response, including copies of mobile phone records.

(3) The Branch did not provide any documents relevant to Ms Asmar in response to the request of 27 November 2013. Accordingly the Commission then requested in an email dated 23 December 2013 that the Branch provide further records in relation to Ms Asmar’s whereabouts on 25 January 2013, 4 February 2013, 5 February 2013, 15 February 2013, 18-19 March 2013, 20 March 2013 and 26 March 2013.

(4) On 17 February 2014 the Branch provided records relevant to the dates identified in the Commission’s request of 27 November 2013. The records provided included Ms Asmar’s mobile telephone records for all of the dates except 25 January 2013 (the date that Ms Asmar declared that she had undertaken the ROE test).

(5) On 18 February 2014 the Commission sent a letter to the Branch in which, among other things, it was noted that there were no mobile phone records for 25 January 2013. The Branch was requested to provide Ms Asmar’s mobile telephone records for the last call on 24 January 2013 to the first call on 26 January 2013 in order to clarify that no mobile phone calls were made on 25 January 2013.

(6) The requested records were not provided. In a letter dated 11 March 2014 the Commission again requested, among other things, the provision of Ms Asmar’s mobile phone records for 24-26 January 2013, and advised that in the event the outstanding documents were not provided, the Commission proposed to make findings on the basis of the materials and information available to it.

(7) No response was received to this request, and Mr Enright’s report was prepared without any of Ms Asmar’s mobile phone records for 25 January 2013 having been provided and without any explanation for the failure to provide these records having been advanced.

[36] After the matter was allocated to Vice President Watson, directions were issued from his chambers on 13 March 2015 which, among other things, required Ms Asmar to produce her phone records for 25 January 2013. The direction did not identify a time for compliance.

[37] There was no communication from Ms Asmar prior to the commencement of the hearing on 23 April 2015 concerning her capacity to comply with this direction. The matter was listed for mention and directions on 8 April 2015 at the appellants’ request, but the issue of Ms Asmar’s capacity to comply with the direction was not raised.

[38] Shortly after the hearing commenced on 23 April 2015 (almost six weeks after the direction had been issued) counsel for the appellants addressed the direction to Ms Asmar, as well as another direction to Mr Katsis, as follows:

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

THE VICE PRESIDENT:  Okay.  Thank you. 20

[39] It does not appear that the matter was raised again during the proceedings. Ms Asmar did not address the matter in her evidence.

[40] The above chronology demonstrates that the Branch was first requested to produce relevant mobile phone records on 27 November 2013, and was first specifically requested to provide Ms Asmar’s phone records for 25 January 2013 on 23 December 2013. There was no response to those requests, or subsequent requests and directions, until Ms Asmar’s counsel gave the explanation as to why the records could not be produced on 23 April 2015, well over a year later. In those circumstances, we consider that Vice President Watson was entitled to make the observations that he did in the Decision. In substance, Ms Asmar had not been cooperative over a long period of time with attempts by the Commission to obtain the relevant records, and that was a matter which was relevant to her credit.

[41] We do not read the observations as suggesting that Ms Asmar’s explanation for the non-production of documents was false, but rather as emphasising its belatedness. In that circumstance, we do not consider that procedural fairness required that Vice President Watson raise the matter with Ms Asmar’s counsel further in order that a submission might be made about it. There is no universal requirement that a tribunal acting inquisitorially, as here, must, before it makes a finding adverse to a party, put to that party the concerns which inclined the tribunal towards such an adverse finding. 21 The precise practical content of the requirement to afford procedural fairness will vary according to the circumstances of the particular case.22 The facts concerning Ms Asmar’s failure to cooperatively respond to the request for her mobile phone records over a long period of time were known to her and her legal representatives. Her delay in advancing the reason why she could not provide the records that had been requested cried out for an explanation, but none was given. We do not consider that it was necessary for Vice President Watson to point this out before making adverse observations about it.

[42] Appeal ground 9 is rejected.

Fifth contention of legal error - apprehended bias

[43] The principles relevant to the issue of apprehended bias were comprehensively summarised by the Federal Court (Middleton J) in Kirby v Centro Properties Limited (No 2) 23. That summary includes the following:

“[18] Because the test of apprehended bias involves “a fair-minded lay observer” who is observing a judge, the assumed characteristics of each need to be considered.

[19] A judge is trained and is required “to discard the irrelevant, the immaterial and the prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).”

[44] We consider that the above proposition may be regarded as equally applicable to a member of a tribunal such as this Commission which is required to act judicially. 24 It cannot be accepted therefore that a reasonable apprehension of bias would arise in the mind of the fair-minded lay observer merely because Vice President Watson would, in perusing the Royal Commission transcripts, have been exposed to prejudicial material irrelevant to the matter before him. The fair-minded lay observer could be taken to understand that Vice President Watson would not take this material into account or be influenced by it in his decision-making task.

[45] Appeal ground 10 is rejected.

First and second grounds of factual error

[46] The appellants’ challenge to the rejection of the evidence of Ms Asmar and Mr Katsis and the conclusion that they did not complete their own ROE tests was founded on a “house of cards” approach to the Decision whereby any error demonstrated in respect of any subsidiary factual finding made by Vice President Watson was sufficient to vitiate entirely his primary factual conclusions. We do not accept this. We consider that because those conclusions were substantially founded on factual matters which were not in dispute at the hearing or factual findings which were not challenged in the appeal, they would not be disturbed by reason of any error in the subsidiary factual findings impugned by the appellants. In summary, the following evidence was received and accepted by Vice President Watson:

(1) Ms Lee, a former employee of the Branch, gave evidence that she undertook the ROE tests for Mr Eden and Mr Rowe as a result of pressure from Ms Asmar and Ms Kitching. This evidence was not challenged in cross-examination by the appellants’ counsel notwithstanding that Mr Eden gave evidence that he had done his own ROE test. It was Mr Eden who, as earlier stated, made the initial statutory declaration in support of the Branch’s application for Mr Katsis to be issued with an entry permit stating that Mr Katsis had completed the required training. Mr Eden and Mr Rowe (together with Mr Sherriff) consented to the revocation of their permits prior to the commencement of the hearing, albeit without admissions.

(2) Ms Lee gave evidence of conversations she had with Ms Asmar concerning obtaining entry permits for the Branch’s officials. These included a conversation in which Ms Asmar requested her to undertake ROE tests for organisers, which she initially refused (but later acceded to).

(3) Ms Lee also gave evidence that she was told by Ms Kitching that Ms Kitching had undertaken ROE tests for various organisers, and had achieved a score of 100% in some of the tests. Ms Lee related this conversation to a bundle of documents she was handed upon returning from leave shortly after 6 March 2013 which included entry permit applications, ROE tests results and ACTU Certificates for Mr Katsis, Mr Mitchell, Mr Sherriff, Mr McCubbin, Ms Govan, Mr Atkinson and Mr Trajcevski-Uzunov.

(4) Ms Lee said that Ms Asmar asked the organisers to forward to Ms Kitching their ACTU emails containing the user name and password allowing them each to access their individual ACTU course accounts. Documentary evidence showed that between 8 and 15 February 2013, at least Mr Atkinson, Ms Govan, Ms Porter (on behalf of Mr McCubbin), Mr Sherriff and Mr Trajcevski-Uzunov complied with this request and sent the information to Ms Kitching.

(5) Mr McCubbin’s evidence was that he had not done his own ROE test, but that it had been done by Ms Kitching.

(6) Mr McCubbin also gave evidence that Ms Asmar had told him that Ms Kitching had undertaken Ms Asmar’s ROE test, and that he had attended a meeting of staff at which Ms Asmar had given an instruction that all ROE tests would be done by Ms Kitching.

(7) Ms Porter (Mr McCubbin’s partner) gave evidence that she had a conversation with Ms Asmar in which Ms Asmar had told her that she had not completed her ROE test, that she would get Ms Kitching to do it for her, and would direct Mr McCubbin to have Ms Kitching undertake his ROE test. She also gave evidence of a subsequent conversation in which Ms Asmar told her that Ms Kitching had done Ms Asmar’s ROE test and that she had directed Ms Kitching to do Mr McCubbin’s ROE test.

(8) Ms Govan, a former organiser in the Branch, gave evidence (consistent with that of Mr McCubbin) that Ms Asmar had stated at a meeting of staff in February or March 2013 that organisers would not be required to complete their own ROE tests because Ms Kitching would do it for them.

(9) Ms Govan said she received an entry permit but did not undertake a ROE test.

(10) Ms Govan also gave evidence that she had had discussions with three organisers, namely Mr Sherriff, Mr Katsis and Mr Trajcevski-Uzunov, about Ms Kitching having done their ROE tests.

(11) Mr Leszczynski, an official of the separate Victoria No. 3 Branch of the HSU, gave evidence that Ms Kitching had told him that Ms Asmar was too busy to do her own ROE test and that Ms Kitching would do it for her.

(12) Mr Atkinson gave evidence that he received an entry permit but had not undertaken a ROE test. Ms Lee had told him: “I completed your test and you got 100%”.

[47] The above evidence amounted to a very strong circumstantial case that Ms Asmar, as Secretary of the Branch, arranged for the ROE tests for a number of officials to be done by Ms Kitching or Ms Lee, and that as part of this arrangement Ms Kitching did the ROE tests for Ms Asmar and Mr Katsis. We consider that Vice President Watson would have been entitled to conclude that Ms Asmar and Mr Katsis did not do their own ROE tests on the basis of this evidence alone, and that when the evidence of the ACTU computer records (which we separately discuss later) is added to this, that conclusion became almost inescapable.

[48] In any event, subject to one possible exception, we do not consider that the appellants have succeeded in demonstrating error with respect to any of the subsidiary factual findings challenged by them. Firstly, we consider that the Vice President was entitled to place reliance on the evidence of Mr McGregor. Mr McGregor was the Secretary of the separate Victoria No. 3 Branch of the HSU, and was therefore independent of the various factional and personal alignments within the Branch. His evidence was to the effect that he had a number of conversations with Ms Kitching concerning the right of entry requirements in the FW Act, the ROE test and the study required to sit the test. In one subsequent conversation, Ms Kitching said to him: “Did another one. Got 100% again”. Mr McGregor’s evidence was that he understood Ms Kitching to be referring to ROE tests, on the basis that she said it shortly after the earlier conversations concerning right of entry permits, that he understood that the Branch had many new officials who needed to obtain entry permits, and that he was not aware of any other tests which Branch officials would be undertaking at that time.

[49] The appellants sought to characterise Mr McGregor’s evidence as too vague and indirect to be probative. We disagree. Mr McGregor was not vague but in fact precise about the matters he recollected, whilst frankly identifying the matters he did not remember. He made it clear that Ms Kitching never actually said to him in terms that she had done ROE tests for other persons. However the inference he drew from what Ms Kitching said to him, having regard to the other evidence, was the obvious one, and no alternative inference was propounded. It was not suggested that Mr McGregor had any reason to give false evidence about these matters. We consider that his evidence was correctly treated as having probative value.

[50] Secondly, we likewise consider that the evidence of various witnesses concerning “common knowledge” as to officials’ ROE tests being done by Ms Kitching or Ms Lee as having some probative value, taking into account that the Commission is not bound by the rules of evidence. The Branch had a relatively small number of employed officials and staff, and in that circumstance it is unlikely that any representation by any staff member concerning ROE tests would be unreliably far from its source. In the case of Ms Govan, Mr McCubbin and Ms Lee, the “common knowledge” about which they gave evidence was completely consistent with the matters about which they were able to give direct evidence.

[51] Thirdly, we do not consider that Vice President Watson was in error in accepting the evidence of Mr McCubbin when he said in his statement that Ms Kitching had done the ROE tests for Ms Asmar, Mr Katsis, Mr McCubbin, Ms Govan, Mr Eden, Mr Trajcevski-Uzunov, Ms Saunderson, Mr Lazarevski, Mr Massa and Mr Hassan on the basis that Ms Lee had in fact done Mr Eden’s test, and that no adverse finding had been made in relation to the four last named officials. In his statement of evidence, Mr McCubbin said that he was “certain” that Ms Kitching had done the ROE tests of the named officials, and that “there was no secret about it, everyone in the office knew about it”. From this it can be inferred that his knowledge as to at least some of these officials was indirect rather than direct. The only apparent error in the list is that Ms Lee, not Ms Kitching, did Mr Eden’s ROE test (noting that the appellants adduced evidence from Mr Eden that he did his own test, but now rely upon Ms Lee having done it). Mr McCubbin was at least correct in saying that Mr Eden did not do his own test, and his apparent error in identifying Ms Kitching did not in our view prevent acceptance of his direct evidence. In relation to the four last named officials, they were not the subject of the inquiry at first instance, so that no error or inconsistency in Mr McCubbins’ evidence that they did not do their own ROE tests can be inferred from the fact that the Decision contained no findings to that effect. It may also be noted that, apart from specifically identified officials, Vice President Watson also found that “[i]t is likely that ACTU tests were performed for other officials by persons other than officials”. 25

[52] Fourthly, we do not accept that Vice President Watson drew “adverse inferences” against the Branch’s witnesses because of the observations at paragraphs [109], [122] and [123] of the Decision that those witnesses, including Ms Asmar and Ms Kitching, were not subject to cross-examination. These observations were no more than a recognition of the fact that, in assessing the credibility of these witnesses, the Commission did not have the benefit of their evidence being tested in cross-examination. That difficulty was of course not the fault of the appellants, but it remained a difficulty nonetheless.

[53] Finally, in their oral submissions, the appellants challenged the reliance in the Decision 26 upon the fact that Mr Katsis’ telephone records showed that he made calls on his mobile phone at Malvern at 1.53pm and 3.48pm on 15 February 2013 in circumstances where the ACTU computer records showed that he undertook the ROE test from 3.59pm to 4.02 pm27 on that day, and where Mr Katsis’ evidence was that he did the ROE test at the Branch’s office at South Melbourne. It may be accepted that the identification of a location on a mobile phone record only shows the location of the telephone tower through which the call was transmitted, and that the reasonable proximity of Malvern and South Melbourne may mean that it could not clearly be concluded, on the basis of the phone record alone, that Mr Katsis was not at or near the Branch’s office at 3.48pm and therefore in a position to undertake the ROE test shortly afterwards. However, it should be noted that there was also evidence, referred to in the Decision, that Mr Katsis’ electronic diary recorded a scheduled meeting at a hospital in Malvern for 2pm-3pm on 15 February 201328. This evidence, taken in conjunction with the phone records, gave some support to the conclusion that it was not likely that Mr Katsis was at the Branch’s office at South Melbourne at the times recorded for his ROE test in the ACTU computer records. Be that as it may, we do not consider that any error with respect to this subsidiary factual matter is such as to vitiate the overall conclusion in the Decision that Mr Katsis did not undertake his own ROE test for the reasons already discussed.

[54] The issue concerning the ACTU computer records we will deal with in connection with ground 3. Grounds 1 and 2 are otherwise rejected.

Third ground of factual error - ACTU computer records

[55] At paragraph [147] of the Decision, the joint opinion of the experts, Mr Mann and Mr Rosalion, was described in the following way:

“[147] Mr Mann and Mr Rosalion gave evidence that they are unable to state with certainty that the ACTU data is reliable as they have not had access to the source data in order to test that.”

[56] However the Decision elsewhere expanded upon the analysis of the expert evidence in the following way:

“[101] Evidence was given by both Mr Mann of Invest-e-gate Pty Ltd and Mr Rosalion, Manager of Forensic Technology at KPMG concerning the operation of the right of entry course provided by the ACTU. The ACTU course is hosted on a Learning Management System on a platform known as Moodle. At the time the records were generated, the Moodle software was hosted on a computer at a company called NetSpot. At the time Mr Mann and Mr Rosalion conducted their analysis, the Moodle software was hosted on a computer at a company called Androzic.

[102] Mr Katsis’ ACTU account was among a group of accounts deleted from the ACTU Moodle instance as part of a clean-up process. The ACTU was able to locate the training records for the deleted users from archived data.

[103] The experts conferred with one another and identified areas of common ground. The main issues that emerged were possible time zone discrepancies and issues concerning the overall accuracy of the logs and reports.

[104] In relation to the overall accuracy of the logs and reports, the experts agree as follows:

● To further verify the accuracy of the times in reports and logs produced, the original database records should be examined, namely, those held at NetSpot.

● Alternatively, the person who produced the report or log should provide evidence about the specific settings used to produce the report or log.

● A deletion or restoration would be unlikely to alter the times, however timezone discrepancies would still be possible.

[105] With respect to the possible timezone discrepancies, the experts agree:

● A “base record” exists, and would be stored in GMT. Neither Mr Mann nor Mr Rosalion have had the opportunity to examine the base records.

● The representation of those times as per the various reports and logs produced (with the exclusion of logs produced during Mr Mann’s own testing) are likely to be in GMT+10 or GMT+11.

[106] Mr Mann gave evidence that any time extracted from the ACTU records during the period in which daylight savings operated, should be accounted for by adding one hour to that time.”

[57] Vice President Watson ultimately found that “[i]t is inherently unlikely that the ACTU records regarding the time taken to complete the test are incorrect.” 29 He relied upon those records to make the following subsidiary factual findings about the ROE tests undertaken on 15 February 2013:

“[233] In terms of documentary evidence, the ACTU’s records demonstrate that on 15 February 2013, a series of right of entry tests were conducted for Branch officials, including for Mr Katsis as specified above. The records demonstrate as follows:

● Access to Mr Atkinson’s ACTU account commenced at 9.02am (10.02am AEDT) and concluded at 9.21am (10.21am AEDT). The test was completed in 9 minutes.

● Access to Ms Govan’s account commenced 1 minute later, at 9.22am (10.22 AEDT) and concluded at 9.35am (10.35 AEDT). The test was completed in 9 minutes and 9 seconds.

● Access to Mr McCubbin’s ACTU account commenced at 1.55pm (2.55pm AEDT) and concluded at 14.00pm (3.00pm AEDT). The test was completed in 2 minutes and 49 seconds.

● Access to Mr Sherriff’s ACTU account commenced at 2.10pm (3.10pm AEDT) and concluded at 2.13pm (3.13pm AEDT). The test was undertaken in 2 minutes and 31 seconds.

● Access to Mr Saso (Sasha) Trajcevski-Uzunov’s ACTU account commenced at 2.54pm (3.54pm AEDT) and concluded at 2.58pm (3.58pm AEDT). The test was completed in 1 minute and 57 seconds.

● Access to Mr Katsis’ ACTU account commenced 1 minute later, at 2.59pm (3.59pm AEDT) and concluded at 3.02pm (4.02pm AEDT). The test was completed in 2 minutes.

● Access to Mr Mitchell’s ACTU account commenced at 3.18pm (4.18pm AEDT) and access concluded at 3.19pm (4.19pm AEDT). No test was taken during this time.”

[58] Vice President Watson ultimately relied upon this evidence to conclude that it was “inherently unlikely” that Mr Katsis, given his inexperience, was able to successfully complete the test in that time, and that it was likely that Ms Kitching performed the test on his behalf, as she did for other officials that day. 30

[59] The appellants seized upon the statement in paragraph [147] of the Decision quoted above to submit that reliance on the ACTU records was misplaced. It identified the following matters disclosed in the expert evidence as supporting that submission:

• The ACTU ROE training and test system operates on an e-learning software system called “Moodle”, the vendor of which was eWorks.



• The ACTU records were retrieved by eWorks at the request of an ACTU officer, Mr David Macara, on 8 January 2014.



• The source data was located in a host computer system external to the ACTU and eWorks. This source data was not provided.



• The software was hosted by a computer system (Androzic) at the time the HSU tests were undertaken in January/February 2013 that was different to the host system at the time the records were produced by the ACTU (NetSpot). No information was provided as to how the records on the Androzic system migrated or were transferred to the NetSpot system.



• The user accounts for Mr Atkinson and Mr Katsis (which showed when users accessed the test and the certificate) were deleted by one of the ACTU’s administrative staff on 9 July 2013 as part of a file cleanup. They appeared to have been recovered by eWorks from the backup, but Mr Macara did not know how they were produced and could not himself reproduce them from the Moodle system.



• An email from eWorks’ “Virtual Campus Support” to Mr Macara of 8 January 2014 identified that there was a Moodle incident on 17 February 2013 which may have caused a period of unavailability and caused data to be missing or excluded. This might have been the reason why the test certificates for Mr Atkinson and Mr Katsis could not be located.

[60] However we do not consider that these matters were such as to prevent reliance upon the ACTU records as demonstrative of the times upon which the accounts of officials of the Branch, including Mr Atkinson and Mr Katsis, were accessed on 15 February 2013, for the following reasons:

• Tests were conducted on the Moodle system and they showed, subject to the fact that the system recorded times as Australian Eastern Standard Time (AEST) and did not adjust for daylight saving time, the correct recording of times, dates, and what was accessed.



• The systems were maintained in a secure environment by an external provider, and no method of manipulation or deletion of the data was identified.



• The experts agreed that “the log records, where they exist for a given period, represent a complete chronology of set of actions or transactions which would be difficult to manipulate without database-level access”. 31



• The experts also agreed that any deletion or restoration of the database records would be unlikely to alter the times, subject to timezone discrepancies.



• The emails from “Virtual Campus Support” to Mr Macara on 8 January 2014 stated that “after a thorough investigation” the user history of Mr Atkinson and Mr Katsis had been found, and that this user data had been “restored correctly” from the backup.



• The user records are corroborated by the independent existence of the automatically-generated email sent by the Moodle system confirming that Mr Katsis had received his Certificate. This email was sent at 4.02.39pm AEDT on 15 February 2013. This corresponds precisely with the 4.032pm AEDT time of the completion of the test for Mr Katsis in the ACTU records.

[61] The experts did express the opinion that further verification of the ACTU records by an examination of the source data would be desirable. Mr Mann expressed this by saying that “ultimate reassurance” would come from examination of the data stored in the original host system. 32 On one view, Vice President Watson overstated this evidence when he said in paragraph [147] that the experts had said that they were unable to state with certainty that the ACTU data was reliable. In any event, the standard of satisfaction as to factual findings was not that of certainty, but on the balance of probabilities. It may be accepted that the seriousness of the potential findings against Mr Katsis (and Ms Asmar) meant that the principles stated by Dixon J (as he then was) in Briginshaw v Briginshaw33 were applicable - that is, reasonable satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”. However we do not consider that any in that trilogy of epithets is applicable to the evidence concerning the ACTU records. Vice President Watson found that it was unlikely that the test times in the ACTU records for 15 February 2013 were incorrect. We think this was the correct finding. To put it the other way, we consider that on the balance of probabilities the ACTU records correctly identified the dates and times at which ROE tests for the various user accounts of the Branch officials, including Mr Katsis, were undertaken. The number of ROE tests which occurred on 15 February 2013, the fact that no two tests occurred at the same time on that day, the diminishing amount of time taken to undertake the tests during the course of the day, the unlikelihood that someone such as Mr Katsis who had never held an entry permit before could complete the 30-question test in three minutes, and the admissions of Mr Atkinson, Ms Govan and Mr McCubbin that they did not undertake their own tests, all strongly point to the conclusion that Mr Katsis did not undertake the test recorded on his user account. We therefore consider the Decision to have been correct in that respect.

[62] The third ground of factual error is therefore also rejected.

Conclusion

[63] We have rejected all the appellants’ grounds of appeal. The appeal must therefore be dismissed.

[64] As earlier discussed, the entry permits of Ms Asmar and Mr Katsis were revoked because they were issued on the basis of incorrect information. As a result of our decision and orders in this matter the Branch’s original applications for Ms Asmar and Mr Katsis to be issued with permits are still on foot to be determined. The Branch may press to have them determined on the facts as they now are known, or may take any other action with respect to the applications as they see fit. The Branch will have seven days to provide us with appropriate advice as to what further action, if any, it wishes to take in respect of the applications.

[65] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is dismissed.

(3) The Branch shall provide advice in writing within seven days as to what further action, if any, it wishes to take in respect of its applications for Ms Asmar and Mr Katsis to be issued with entry permits.

VICE PRESIDENT

Appearances:

P. Gray QC with J. Watson of counsel for the Appellants.

Hearing details:

2015.

Melbourne:

9 September.

 1   [2015] FWC 3359

 2   PR568839

 3   Asmar v Fair Work Commission [2014] FCA 1156

 4   [2015] FCA 16

 5   Decision at [269]

 6   Decision at [241], [244]

 7   Decision at [269]

 8   Decision at [112]-[114]

 9   [2015] FCA 16

 10   Ibid at [100]

 11   Ibid at [85]

 12   Ibid at [88]

 13   Ibid at [100]

 14   Ibid at [87]

 15   [2015] FWC 5161

 16   [2015] FCA 16 at [100]-[101]

 17   (1975) 167 CAR 929 at 931

 18   Decision at [113]

 19   Exhibit 14 paragraphs 1-3; exhibit 19 paragraphs 1-3

 20   Transcript 23 April 2015 PN13-14

 21   Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [76] per Gaudron and Gummow JJ

 22   Kioa v West (1985) 159 CLR 550 at 633 per Deane J

 23   (2011) 202 FCR 439

 24   See ResMed Limited v Australian Manufacturing Workers’ Union (2015) 232 FCR 152

 25   Decision at [268] (1)

 26   See Decision at [143], [235]-[236], [250], [268] (7)

 27   Australian Eastern Daylight Time; the ACTU records actually show times an hour earlier (Australian Eastern Standard Time, AEST) because there was no adjustment for daylight savings time.

 28   Decision at [235]

 29   Decision at [250]

 30   Decision at [250]

 31   Exhibit 25

 32   Transcript 4 May 2015 PN1297

 33   (1938) 60 CLR 336 at 362

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