C2005/4080, Transcript of Proceedings [2005] AIRCTrans 1940 (20 September 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 12775-1

SENIOR DEPUTY PRESIDENT LLOYD

C2005/4080

NATIONAL TERTIARY EDUCATION INDUSTRY UNION
AND
MONASH UNIVERSITY
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/4080)

MELBOURNE

10.04AM, WEDNESDAY, 07 SEPTEMBER 2005

Continued from 3/8/2005

Hearing continuing

PN144

MR S ROSENTHAL: I appear on behalf of the NTEU, accompanied by MR K NORLING.

PN145

MS J BOURKE: I seek leave to appear on behalf of Monash University.

PN146

THE SENIOR DEPUTY PRESIDENT: Thank you. Is there any objection to leave?

PN147

MR ROSENTHAL: I won't revisit those arguments thank you. No objection.

PN148

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Before proceeding with this case I just make an observation. This arises under section 170LW, and of course clause 11 of the relevant agreement which sets out a dispute resolution clause. On material that's before me it seems it's a matter which it would not be unreasonable to expect that it could be settled through conciliation. However I do note the detailed preparation by both parties to conduct this arbitration case, but before commence with this morning's proceedings I'd just like to inquire from the parties, has there been any conciliation since the last occasion on which this matter was before the commission, and is there any desire this morning to enter into any conciliation?

PN149

MR BOURKE: Your Honour, there has been no conciliation since we were last before you. I think our position is really the matter has to be thrashed out.

PN150

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Rosenthal?

PN151

MR ROSENTHAL: Obviously I concur there's been no contact between us. If we could see a path to conciliation I think we'd be willing to explore it, but I don't think that path is open to us.

PN152

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Rosenthal, over to you.

PN153

MR ROSENTHAL: Over to me, thank you. I think I should start by acknowledging some deficiencies in my own procedures and apologising to the Commission for that. As I indicated, it's a long time since I appeared in a contested matter, and last time I dealt with a matter that had witnesses all the evidence was gathered live in the Commission and provided by transcript subsequently.

PN154

So as I indicated when we last met, I would be relying upon the statements that had already been tendered as evidence, and I didn't prepare witness statements of the kind that I subsequently received from the university's representatives, so I apologise for any inconvenience that that has caused or any potential unfairness of process that might arise as a result of the lack of full witness statements from the witnesses. However, I don't think their evidence will be terribly surprising given that some statements were already available.

PN155

I do want to raise a couple of other things though in the area of fairness of procedure. When I arrived here this morning I was presented with four documents and advised that an additional witness was to be called. I think the way that you established these proceedings providing for the NTEU two weeks to present an outline of submission and witness statements followed by two weeks for the university, having had the benefit of seeing our material to present its witness statements and outline of submission, to then have a week following that. So a five week period, and then to find out on the day that I'm to face the prospect of a new witness, there is a supplementary outline, there's an amendment to one of the witness statement and there's an additional document, plus a new version of chronology.

PN156

It seems to me to fly a bit in the face of a proceedings that have been established, and puts me at some disadvantage in respect to those materials. I at least want to place on the record my objection to this, and I don't propose to seek an adjournment, but I do want to make note of the fact that it places me at a disadvantage in dealing with it. Now, I understand that this material arrived yesterday at the Commission. I have been in the last 15 hours at the two offices that I operate between, and at neither place did I receive those documents. So as I say, they were handed to me personally when I arrived here today before 10 o'clock. I don't think that's a proper way of conducting this matter.

PN157

THE SENIOR DEPUTY PRESIDENT: Mr Rosenthal, I understand your submissions. You're not going to seek an adjournment. You're entitled to it I would think if these documents are admitted that haven't complied with the directions which I issued, and it seems to me to be stretching fairness to expect someone to proceed immediately with their case when a possibility of a new witness and also a new outline of submission is delivered to you on the morning of the case. But as I hear you, you're saying you're prepared to proceed on the basis of where you're at at the moment?

PN158

MR ROSENTHAL: I am prepared to proceed because I think we need to conclude this matter. It's occupying a lot of people, a lot of time and energy. And whilst I don't claim to have comprehended all the nuances of the material that's been presented to me today, I think that other than the supplementary outline, which is really a legalistic outline about the operation of the EBA and one which I think the university was always entitled to make and was always going to make anyway, I think that it's fair enough to proceed, but I did want to draw the Commission's attention to the actions themselves.

PN159

THE SENIOR DEPUTY PRESIDENT: Thank you. I might seek some clarification from Mr Bourke. Mr Bourke, do you agree that there's, what I think Mr Rosenthal said, four documents this morning that he's discovered or become aware of?

PN160

MR BOURKE: Can I just start with that. We don't know what happens down at their office, but we forwarded a supplementary outline and, as your Honour said, there was directions as to outlines. On reading the material I felt out of fairness to the NTEU I should make perfectly clear our legal construction of the EBA. I didn't feel that had come through in the outline. It could have been a matter I could submit orally without objection, but I felt out of fairness I'll give them what my thoughts are. We thought of that on the note of our correspondence at 3.50 pm.

PN161

We ensured that anything we forwarded to your offices, your Honour, was forwarded contemporaneously to their offices, but we checked this morning and found they didn't have it and we provided them with that document. There was no intention of giving it to them this morning. And as Mr Rosenthal says, it is just a pure legal argument as to our construction. We give them as much foreshadowing as possible for what otherwise could have been an oral argument.

PN162

The second document is Professor Hourigan's statement which we forwarded on our records at 10.51 am yesterday, and there's a change of one line in his statement, one line, the clarification of one line. The third document is a chronology of events which is just putting together a chronology based on the material they already got. It's a document which, in my submission, they would not have been able to object to if I wanted to hand up a chronology as part of the opening. I was saving the court's time by me reiterating the outline to have the document there. But I gave it to them before I opened the case. I gave it to them this morning.

PN163

We say there would be no basis. The directions did not deal with chronologies. There would be no basis for objection if I wanted to hand up a chronology based on the material, not as independent evidence but just based on the material already in our documents, which we say it's of assistance to everybody to know where it all fits. Mr Rosenthal then raises, there is another witness. And this is my fault. I'm looking at the material again yesterday, I thought given that Professor Field says he recounts particular meeting with Professor Melbourne, we should have Professor Melbourne.

PN164

Now, your Honour already may remember that in Professor Sheridan's statement he sets out a conversation with Professor Melbourne. And Professor Melbourne is not - he's an emeritus professor. It's not a paid role. Effectively he's retired but he's provided with an office or whatever, so we were reluctant to drag him into this. But we set out by way of essentially second hand evidence what Professor Melbourne's position was on the policy. So they had notice of that. But basically because of my own views I've asked for that to be put into a statement form for Professor Melbourne to give evidence.

PN165

So they have forewarning. It's no surprise. We haven't got the document to them yet because as we understand it we'll effectively say the long standing policy, as all our other witnesses say, you need the head of department's okay. So that central theme, there will be no change. We do flag at this stage, and we're not asking for an indication from the NTEU or from your Honour in the absence of the statement arriving, but Professor Melbourne does have difficulties tomorrow and we were intending to seek leave of the Commission to intervene him so that he can give his evidence this afternoon.

PN166

Your Honour, so those are the matters and how they are transpired. And as I indicated, your Honour, it's our preference that after Mr Rosenthal's opening we would then open, so your Honour hears exactly the parameters of the case. If your Honour pleases.

PN167

THE SENIOR DEPUTY PRESIDENT: Okay. Well, some of those developments are a bit irregular and not in accordance with the directions, however bearing in mind Mr Rosenthal's submission and his desire to proceed we'll do that. And I concur with Mr Bourke, Mr Rosenthal, that the best way to proceed is for you to give an opening statement and then for Mr Bourke to give an opening, as I understand your submission, Mr Bourke.

PN168

MR BOURKE: That's correct.

PN169

THE SENIOR DEPUTY PRESIDENT: And then you go on then with your case in detail.

PN170

MR BOURKE: Your Honour, I'm not asking - if Mr Rosenthal doesn't want to give an opening that's fine, but we wish to give an opening at an early stage.

PN171

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Well, I suppose it becomes now, Mr Rosenthal, do you wish to give an opening statement?

PN172

MR ROSENTHAL: I've got to confess to some understanding at variance with these proceedings, not necessarily an authoritative understanding. As you will recall I commenced to give an opening when we last met, and I was a considerable way through that opening when we adjourned for the purposes of conciliation. So to the degree that I have already outlined the NTEUs view on the operation of clause 20, and in particular 20.1, 20.7 in relation to 66.2, I don't think it serves anyone's purpose to go over what's already on transcript, which I'm sure Mr Bourke has had the opportunity to review.

PN173

THE SENIOR DEPUTY PRESIDENT: I do note the fact you gave a type of opening statement on the previous occasion, and I did go back and read that transcript in the last couple of days, so plain for me with that material.

PN174

MR ROSENTHAL: Thank you for that. What I did have was a couple more documents to present which have also been provided by way of what was sent to the Commission and to the university's representatives in making my submissions in preparation for today's hearing, and I seek some guidance from you. How are those documents treated? Are they going to be registered or do I have to formally present them in the hearing at some point and have them registered.

PN175

THE SENIOR DEPUTY PRESIDENT: I prefer you to present them in the hearing.

PN176

MR ROSENTHAL: Present them and explain them at the time?

PN177

THE SENIOR DEPUTY PRESIDENT: Yes.

PN178

MR ROSENTHAL: Yes, and I'm happy to do that after the opening. So I think I'll forgo the opening, having given it five weeks ago.

PN179

THE SENIOR DEPUTY PRESIDENT: Fine, thanks Mr Rosenthal. Mr Bourke?

PN180

MR BOURKE: If your Honour pleases. Your Honour, could I tender the chronology of events. I also have a copy for your Honour to mark. As I indicated, I'm not suggesting the chronology operates as evidence in its own right.

EXHIBIT #S3 MONASH UNIVERSITY CHRONOLOGY OF EVENTS

PN181

MR BOURKE: And I just confirm, did your Honour receive a supplementary outline?

PN182

THE SENIOR DEPUTY PRESIDENT: Yes, that arrived yesterday.

PN183

MR BOURKE: I wonder if that can be marked. Your Honour, we have two copies, if that could be marked as an exhibit, your Honour.

EXHIBIT #S4 MONASH UNIVERSITY SUPPLEMENTARY OUTLINE OF SUBMISSIONS

PN184

MR BOURKE: And, your Honour, there is one additional document which is not in our folder, which is the extract from the Monash University Staff Handbook in relation to an associate professor, and I provide your Honour with two copies.

EXHIBIT #S5 EXTRACT FROM MONASH UNIVERSITY STAFF HANDBOOK

PN185

MR BOURKE: Now, your Honour, one apology. We did hope to provide your Honour with a copy of the EBA. The copy we have is marked up so we're arranging for a further copy to be brought up to court. If I could briefly go first, your Honour, to the supplementary outline so your Honour has just a handle on what we are really saying about this case, and we've set out the relevant extracts of the EBA.

PN186

Critical in this case is the operation of clause 20.7 and how that operates interfacing with clause 66.2. And you will see, your Honour, that disciplinary action is to be used as a last resort. We've set out in paragraph 3 - and that is a defined term, your Honour, disciplinary action, and one of the categories is formal censure and counselling. You then have paragraph 3. We have clause 20.7 set out, which makes a direct reference to clause 66.2. And one of the options provided in 20.7 is to not proceed in relation to misconduct by way of disciplinary action by way of counselling, but to deal with a non disciplinary action such as staff development, guidance or work allocation.

PN187

It's our case that if the supervisor forms the view that disciplinary is warranted given the nature of the misconduct, that the supervisor will be failing in their duty to then proceed by way of a non disc action type course such as guidance. You then have the fact, we say, your Honour, the scheme of the Act is that disciplinary action is not to lightly taken by a supervisor against an academic. Not only is it of last resort, but the very perquisite under the scheme of the agreement is that misconduct is found to have occurred. You cannot move to disciplinary by way of, for example, censure or counselling without that prerequisite having been found.

PN188

We say that the NTEU has misconceived the operation of clause 20.7 and how it interfaces with clause 66.2 in this way. The interfacing of those two clauses is to protect the academic, it's to protect the academic in this way. Where the academic says I deny misconduct has occurred, I object to you imposing disciplinary action. And that's what counselling is, your Honour. There is no halfway house of counselling someone in circumstances where it's not disciplinary action. It is recognised as disciplinary action. And so the gravity of that step where they're saying it's a last resort ensures you have to actually have a clear finding that the foundation for counselling has occurred, and that is that misconduct has occurred.

PN189

And the safety valve in the agreement for the academic is that when the academic disputes with their supervisor, no, I've not done anything wrong that could be called misconduct, the supervisor's hands are forced, they are tied, they have to escalate it to a more senior member of the department, being the dean, a member who is more remote from the immediate - could be seen as more remote from the circumstances and can give a more objection judgment as to whether misconduct has occurred. And that is the protection for the academic, and that is what you will hear Professor Sheridan did.

PN190

And, your Honour, part of the natural justice protections in dealing with the dean are clear from clause 66.2 because they require the supervisor to articulate by way of a referral what the misconduct is, report back to the dean and provide a copy to the academic, and then the academic is given the opportunity of making a written response. So it provides a clear procedure, and then the dean can make an assessment whether it has occurred.

PN191

If the dean finds misconduct the dean can then, in the exercise of their discretion, determine whether it's appropriate to censure. You will hear, your Honour, Professor Sheridan say that even if I had been allowed to counsel when Associate Professor Shirinzadeh was disputing that misconduct had occurred I would not have counselled. He took the view that counselling was an inappropriate response in circumstances where there was a refusal to acknowledge wrongdoing.

PN192

It needed to escalate to a point of going to the dean with the possibility of censure. Because if there's a failure to refuse to acknowledge wrongdoing there's the risk of repetition. That was his own thinking, but he was trapped by the scheme of the agreement which protects the academic regardless. But in circumstances where Associate Professor Shirinzadeh was objecting to a recognition of misconduct he would have taken the same course regardless of clause 66.2.

PN193

We say at the end of the day there will be a lot of evidence on whether misconduct occurred or not occurred, but we say at the end of the day, your Honour, the Commission is not intended by section 170LW to become the dean. If we could hand up the two cases we cite in the supplementary outline, and in particular the Southern Cross decision which we'll take you to at the end of the case, which indicates that it's not for the Commission in this type of process to become the dean and decide what you would have done if you were sitting in the shoes of the dean.

PN194

All you have to determine is, has the dean operated within the powers of the certified agreement, something that they carry the onus on. And if the dean has, that's the end of the case. But as to the question of whether misconduct has occurred, you will be able to take cognisance of the fact the dean can bring his own experience into play as to what was the practice regarding cancelling courses, and also make an assessment of whether the explanation proper by Associate Professor Shirinzadeh held water or should be rejected as Professor Sheridan urged on the dean in his submission. He had a choice and he chose one against the other, as what frequently happens when people assess competing views.

PN195

And what is critical, you will hear the evidence of the trio, Professor Field, Dr Honnery and Professor Soria. They were not matters that were brought forward to the dean on behalf of Associate Professor Shirinzadeh, and we'll say at the end of the day that can't cut ice in undermining the dean's assessment. But we'll say something about them during the running of the case. If I can move to the chronology, because if your Honour finds that you have to make your own assessment of whether misconduct occurred, we say the case is overwhelming.

PN196

We've set out in the chronology a front page. You will hear from senior members of the department, two of them absolutely critical players, head of department, Director of Undergraduate Affairs. I mean if these guys don't know what the practice is they shouldn't be in business. And you will hear from a former head of department that the long standing practice has always been, there's no magic number. There's no magic number where you get below a certain amount. There's no magic number.

PN197

It is a matter for the discretion of the head of department, not a lecturer, to determine whether courses are cancelled. The idea that if you teach a course under a magic number you don't get any recognition for the work is total nonsense, it's fantasy, and we will show that if there is any type of number the rough guide was something under 10 as where you really seriously look at cancelling the course. But when do you cancel them? You cancel them before the course starts.

PN198

And even if there was a practice, it was unforgivable of a - if even there was a practice as Associate Professor Shirinzadeh claimed, it was unforgivable to decide on the first lecture. He says under 20 you have to cancel. He knew that before the start of the first lecture, and he causes havoc by cancelling in the first lecture whilst students have then got to scramble and find something else.

PN199

Your Honour, we now have the statement of Professor Melbourne, if I can hand up two copies of that to your Honour.

EXHIBIT #S6 STATEMENT OF PROFESSOR MELBOURNE

PN200

MR BOURKE: And, your Honour, we will say it would create total havoc if you had lecturers ad hoc the minute you got under a magic number could start cancelling courses. These things have to be coordinated, pulling together a course, and the essential guy responsible is the head of department. And you've got a clear conflict of interest. Lecturers don't want to be given the work to teach a course. You will hear that the driver for promotion is frequently research publication. It's not in their interest to teach courses where they say they're not going to get credit for. Once they drop under 20 they're out. It would create total havoc if you gave that power to an academic up front in terms of the lecturer.

PN201

We've provided in the chronology from page 2, we've looked at from 1999, your Honour, down the bottom of the page you will see a number of courses are being taught. A number of courses have been taught with less than 20 over the last few years. And one of the other matters, your Honour, Associate Professor Shirinzadeh without consulting head of department, he cancelled a course that had been in existence since 1996. And then we've set out in page 3 a number of other examples, courses that have been taught.

PN202

In the middle of page 3, your Honour, you will see the duty statement of the head of department, it's his responsibility to manage academic programs, not a lecturer. It's his responsibility under the agreement to allocate work loads. How can he do that if people are willy nilly cancelling? And, your Honour, we will lead evidence that in 2002 one of the witnesses says you have to cancel if it's under 20, inducted a course that involved 10 students.

PN203

And when you move to February 2005 on page 4, we say this is going to be critical. The probability that if Associate Professor Shirinzadeh thinks he can cancel a course when only a few weeks, a couple of weeks before the course starts he's been told to teach it in circumstances where the department must know the number of enrolments. And it's so recently confirmed. It was cancelled we believe on 3 months, he's having been told on 25 February by the head of department, you're going to teach this.

PN204

And then you go, your Honour, to late February, the discussion between Associate Professor Shirinzadeh and Professor Berreen. On new view of that conversation, which was an informal conversation, could Associate Professor Shirinzadeh have gone away from that discussion thinking if it gets under 20 I can cancel this course off my own bat. That same position is reiterated at a later conversation with Professor Berreen. Shirinzadeh is looking for some way to get out of teaching this thing already before he finds out how many people turn up to the class, and then he goes and on 3 March, he doesn't spell out the reasons, he just says I have cancelled the course. And Professor Berreen assumes he must have got the approval of the head of department.

PN205

And we will dispute the amount of people he says turned up for this class. We say it was in the vicinity of about 13, not the five people that he saw and a few others that came later. And then you will see 8 March is the critical meeting where both side have brought their witnesses, and we will say that meeting disclosed that Associate Professor Shirinzadeh within a week of the cancellation did not suggest he acted under a policy. He initially talked about a policy or a tradition, and then he said that he hadn't really cancelled it.

PN206

If you go down to J, your Honour, you will see that Professor Field pointed out that Associate Professor Shirinzadeh could not cancel the course but only recommended the cancellation. That was just playing games. And Professor Shirinzadeh pointed out that he'd effectively done that by telling the students at the lecture the course was cancelled. So they were putting forward a position, Professor Field and Associate Professor Shirinzadeh, they could not cancel the course. And their case before you is we can cancel the course.

PN207

And then you have a series of emails. Associate Professor Shirinzadeh refusing to admit misconduct, and the matter being escalated to the dean, and then 9 May you have Associate Professor Shirinzadeh's letter where it was previously a tradition policy, now at point C it's a practice/policy. And one of the reasons he's put forward is the problems of setting up the lab equipment. He did not lift a finger. He says the problem was setting up the lab equipment. If that was a problem, that was a problem before the first lecture started. He obviously could not be bothered putting the energy into teaching a dozen kids a course. We have better things to do, and this nonsense about the lab problem is unmasked because he must have known that before the course. If that was the reason he should have cancelled the course beforehand. It's not a factor at the point of a lecture.

PN208

He did not lift a finger in actually asking the person responsible for setting up the lab to set it up in time for the first lecture. He did engage in misconduct. And we'll point out, your Honour, misconduct is defined in the agreement very broadly. Conduct which is, I think it says unsatisfactory. It is very, very broad discretion with enormous latitude for the dean to make that assessment, and we say nearly impossible to suggest that any conduct less than exemplary conduct could not come within that definition. We will say that the dean's censuring of Associate Professor Shirinzadeh was warranted and should stand.

PN209

Your Honour, we would seek an order for witnesses out of court, but we would seek that Professor Sheridan be permitted to remain in court to provide us with instructions. If your Honour pleases.

PN210

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bourke. Mr Rosenthal?

PN211

MR ROSENTHAL: Thank you. I guess I've got to thank the uni for their contribution there. The point's been made, and I think I quote Mr Bourke - - -

PN212

MR BOURKE: Can I just rise? In terms of the courses we understand that there will be a final address It's not appropriate for him to have a response to my opening. He had the opportunity to open. The time now is for him to call his witnesses. He can make comments about my opening at the end of the case

PN213

MR ROSENTHAL: Okay, that's fine.

PN214

THE SENIOR DEPUTY PRESIDENT: Yes, that's the appropriate way. You will have a final address opportunity Mr Rosenthal.

PN215

MR ROSENTHAL: All right. So in that case I'm ready to call witnesses.

PN216

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'd like the other witnesses here to leave the room except for Professor Sheridan, as I understand he is the key adviser to the university.

<JULIO SURIA, AFFIRMED [10.42AM]
<EXAMINATION-IN-CHIEF BY MR ROSENTHAL

PN217

MR ROSENTHAL: You've given your name. Could you state for the record where you work and in what capacity you're employed?---I work in Monash University and I'm a professor with a personal chair in mechanical engineering, in the department of mechanical engineering.

PN218

Thank you. How long have you worked there?---I've worked there since 1993.

PN219

In what roles have you worked there?---I was appointed as a senior lecturer from 1993 to 1997, then I was promoted to a reader where I held this position from 1998 to 2000, and I was subsequently appointed to a personal chair from the year 2001 to the present.

PN220

Thank you. I just handed you a document that is marked in the top right hand corner as R4, which means it was presented here when we last met. It's a statutory declaration in your name?---Yes.

PN221

Do you recognise the document?---Yes, I do.

PN222

Are you its author?---Yes.

PN223

Do you stand by what is written there?---Yes, I do.

PN224

The matter we are discussing relates to the existence or otherwise of the department's policy in relation to a minimum class size for electives as it was understood in February this year. Are you aware of such a policy?---Yes, I am.

PN225

What is that policy?---That policy is as I've stated in my statutory declaration.

PN226

And that is essentially that where there are - I've been asked not to lead?---Would you like me to elaborate?

PN227

Yes, please. And tell us how you understood it to operate?---I understood the policy to operate in the following manner. We used to have departmental meetings prior to the following academic year where they were groupal meetings where the proposed teaching loads and the academics that would be teaching the subjects were assigned, and later on in February we had a budget meeting where the class sizes were more or less known at that time. And at that point the policy, or this policy which dates back - or understanding dates back to about eight years, was that if there were elective units which had less than 20 students then that unit would not run. So the full state is that it would not run. However, if the academic chose to run it he would just not get any teaching load acknowledgment for doing so. And I have done this on a number of occasions, I've run subjects with less than 20 students, elective subjects. And this only relates to elective subjects, not to core subjects.

**** JULIO SURIA XN MR ROSENTHAL
PN228

Thank you. Is that policy in writing and accessible to departmental staff?---Not to my knowledge.

PN229

So how do you know the policy?---I know the policy because I attended the meeting about eight years ago. I think it could have been 1997 but I can't recall exactly, where in the context of rationalising elective units we discussed the possible cancellation of elective units which had very small numbers. And the original minimum was in fact somewhere around 30 students, but that was then reduced to about 20, or that was settled. And of course subsequent to that meeting every time we discussed in the groupal meetings, departmental meetings and the budget meeting the allocation, or who was going to teach what elective unit, this would come up as part of the general discussion where it was discussed that elective units with small numbers should be cancelled. And then academics who felt that they wanted to teach these units, take these units with small numbers, would do so. And my understanding personally was that if I chose to teach it I understood that I would not get any teaching acknowledgment, and that was fine with me.

PN230

With your understanding of that policy what degree of autonomy in cancelling a lecture with small numbers of students would an academic have?---Well, given the policy as I understood it the full state is that it would be cancelled and not attract teaching load acknowledgment, therefore the full state is that it was cancelled and you had to argue for the case of operating it. So in that sense that questions doesn't make a lot of sense to me. However if you had to ask somebody the appropriate person that you would certainly seek advice from would be the director for undergraduate affairs within the department as the head of department nominee in matters dealing with undergraduate affairs. So that would be the first person you would consult with and discuss.

PN231

You have already said that you applied this policy yourself?---Yes.

PN232

Why would you seek to run a unit with small numbers of students when you believed you'd get no work load credit for doing so?---Well, in the first instance because it is in - elective units are usually taught by academics in which they have a particular expertise, and of course one always wants to provide the students with that expertise. Also the students that take those units want to specialise in that unit, and so I want to provide them with that opportunity to be exposed to advanced matters in those areas of expertise, and also to expose them to potential post graduate research opportunities, because being at that advanced level you are right at the edge of our knowledge and you're pushing it and you're wanting to explain to the students what our lack of knowledge is, so you want to expose them to potential future research areas. So it serves the purpose of instructing them in very advanced areas, preparing them for professional life in those areas if that's the area they choose to work in, and also to expose them to even go beyond that into the research into those areas, so that's my motivation for certainly running those classes. I've run them with three students.

**** JULIO SURIA XN MR ROSENTHAL
PN233

With how many?---Three.

PN234

Thank you. What is the significance to an academic of supervising postgraduate students?---It's a very important part of our academic life. It provides us with instructing, teaching and developing the next step after undergraduate life, to broaden their minds into what we don't know yet, where shall we go? And also it allows us to expand on work that we possibly could not do in the lab ourselves because of time constraints. I mean we'd love to be in the lab but at the end there's only so many hours in the day. So we get the chance to do what we really love doing, which is instructing and teaching students but at a level which gives us the time to really spend with them in the laboratory and instructing them and then trying - instructing them on how to develop ideas, how to go beyond what we really don't know. It's a very important part.

PN235

Thank you. Is supervision of postgraduate students recognised for work load purposes?---To my understanding it is.

PN236

Do you know how it's measured or valued?---At this point in time I'm not aware because there's been so many different models thrown around that I just don't know how it's calculated at this point in time.

PN237

Okay, thank you. You said that you hold a personal chair?---Correct.

PN238

What does that mean?---Personal chair is a promotion to professorship because of your international reputation and your contribution to research.

PN239

So you are active in research then?---Yes, very much so.

PN240

Could you describe how much you do? This is where your notes come in?---Yes, that's where my notes come in. Well, the rules of my - within my research and research administration, potential submission, administration in Australian Research Council and other national competitive grants, supervision of honours and final year student projects, supervision of postgraduate research students, authoring and co-authoring of private journal papers, which were 15 journal papers in the last five years, and international conference papers which are more than 70 in the last five years, review and conference and journal papers, being a member of the Australian Research Council College of Experts and sitting on the engineering and environmental site committee, reviewing research grants for national, international research agencies, being a member of international technical committees such as the American Institute of Aeronautics and Astronautics Dynamics Technical Committee, being a member of a number of international scientific conference - - -

**** JULIO SURIA XN MR ROSENTHAL
PN241

THE SENIOR DEPUTY PRESIDENT: Excuse me, Mr Rosenthal and the witness, you presume that if someone holds the position of professor I'm convinced they're eminent in their fields, so I'll just try to follow the thread of - - -

PN242

MR ROSENTHAL: I would have assumed the same, your Honour, but it's my understanding that some professors are more eminent than others, and not all professors are made equal so to speak. I'm getting to an additional point though. It's not merely to illustrate that he has an impressive curriculum vitae. I'm sure that a number of other professors could also be impressive if they prepared theirs.

PN243

I am getting to another point about it, but perhaps you could just tell me - that was pretty much the end?---That was pretty much it, yes.

PN244

Okay, thank you. Now, that is a long list of responsibilities, and you also
teach?---Correct.

PN245

All those other activities that you listed are they done with the
university support?---Yes.

PN246

Is time value given to these activities?---When it pertains to Australian Research Council grants there is a sign off on the time that we provide - as be necessary for us to conduct and supervise that research.

PN247

How much of your time is currently committed to such grants?---I currently hold five Australian Research Council grants and the sign of time corresponds to 0.7 of my Monash University time plus sitting on the Australian Research Council College of Experts there is an allowance of 0.2 of my time, the vice chancellor for research for which the department gets funding from the Monash research funds so the total is 0.9 of my available work time at Monash University.

PN248

So 90 per cent of your notional time of employment is committed to research one way or another with the support and approval of the university. I know that was a leading question but I'm just clarifying?---To sign off on documents, or understood to be like that.

PN249

You've heard from the submission put by the university today comment about research being the path to promotion and people who were on the research track looking to minimise their work load in other areas. What do you say about that in relation to your own interests?---I don't think that that's correct at all. In fact when it comes to electives, besides instructing the students at this very advanced level of the particular area of expertise is also the possibility to excite students about potential research. So it's in our interest to in fact teach them at this high level but also instruct them. It's one way of exciting students to do research and therefore it is part of the next level of education which is at the postgraduate level and, I mean one of the reasons we are at the university is not just to do research. I mean part of research is learning, and whenever we have to lecture or whenever we lecture we learn and therefore we are learning at the same time and we are - it's part of the entire process. To just say that we don't - we just want to do research without learning is not correct, certainly not - it's not an academic life, if that's what is being suggested.

**** JULIO SURIA XN MR ROSENTHAL
PN250

Just returning a moment to all that research time that you have committed who signs off on the documents that say that that is how your time is allocated?---The official Australian Research Council documents are signed off by the deputy vice chancellor for research or its nominee, but there are a range of other documents which are internal where the head of department and the associate dean for research signed off.

PN251

If I can pause for a minute and seek some guidance from the Bench. We're aware that certain allegations and statements are going to be made subsequently about this witness, and I seek some guidance as to when we can address those matters. For example can I anticipate them now and save him the trouble of waiting or returning tomorrow?

PN252

THE SENIOR DEPUTY PRESIDENT: Mr Rosenthal, the normal process is that when you finish your initial questioning Mr Bourke will then cross-examine the witness and you will have opportunity to re-examine then.

PN253

Well, that's what I'm uncertain of, that some of it actually appears in the statement of another witness, and I don't know whether it will appear in the cross-examination, but Mr Bourke's assuring me it will. So that will serve my purpose. Okay, that concludes my initial questions, thanks very much.

<CROSS-EXAMINATION BY MR BOURKE [10.58AM]

PN254

MR BOURKE: Professor Soria, you see yourself as an eminent professor?---I think others may see me like that.

PN255

In terms of the categories Mr Rosenthal spoke about, will you see yourself as one of the more eminent categories or less eminent categories?---Again it's for others to decide.

PN256

What's your own personal view?---Like I said, it's for others to decide.

PN257

You see yourself as being very careful in the language that you use, don't you?---I think, well, one tries to, yes.

PN258

And if I can say, engineering is recognised as part of the sciences?---Yes.

PN259

And part of the sciences pride themselves on exactitude of language,
correct?---One tries to.

**** JULIO SURIA XXN MR BOURKE
PN260

Now, do you think an arrangement is the same thing as a policy?---English not being my first language, a policy as I understand from the Oxford Dictionary is a principle, so it's an idea, that's what I understand, an understanding, a principle by which we operate.

PN261

So can you just answer my question?---Well - - -

PN262

Can I just ask this question. Do you think an arrangement is the same as a
policy?---As far as I understand it, yes, but I don't know. I mean as far as I understand it I think it is, but like I said, I'm not a linguistic as such either.

PN263

You're not quite comfortable about a policy and an arrangement being the same thing are you, you're not quite comfortable?---No. I make sure - like I said, in my mind I understand it to be the same, an arrangement, a principle, a policy.

PN264

Your Honour, Professor Soria's statutory declaration is at tab 23 of our folder.

PN265

THE SENIOR DEPUTY PRESIDENT: It's R42.

PN266

MR BOURKE: You see, when you described the policy you also first used the term arrangement and policy. Do you see that?---Yes.

PN267

If it meant the same thing why didn't you just say policy?---Because that's how I write.

PN268

When you normally talk about a policy do you always say arrangement and policy?---I very seldomly talk about policy.

PN269

But when you speak of a - I mean in the university's scenario you will be talking about policies from time to time?---Yes.

PN270

When you speak about a policy do you normally talk about an arrangement and a policy?---The documents that I've seen just talk about a policy. I don't see arrangement.

PN271

When you normally talk about policy you don't normally just say arrangement and policy, do you?---Well, I don't know. I mean I can't remember every possible conversation that I may have had.

PN272

You said arrangement and policy because you knew didn't you, there's really no policy, you wanted to give yourself a little bit of room to move. It's only a stat dec you said, arrangement and policy, that's why you used the word arrangement didn't you?---No. I mean that's your interpretation of this.

**** JULIO SURIA XXN MR BOURKE
PN273

Well, let's just have a look at the arrangement?---Yes.

PN274

Do you say it came out of one meeting?---To my recollection it pertained to the rationalisation of elective units because we were I think moving from four credit points to six credit point units and, I mean that's my recollection from that, and then there was the discussion of what unit should be perhaps cancelled because they had low numbers, and the discussion then went to, okay, how are we going to, not implement, but encourage, that if we have low class numbers for those units not to run in order for us to operate more cost effectively as the university is demanding from us at present.

PN275

Now come back to my question. Was it at one meeting?---I cannot recall. I
think - - -

PN276

How many meetings might you be talking about?---I think it probably was discussed in groupal meetings and also departmental meetings.

PN277

A groupal meeting, can you just explain to the Commission what a groupal meeting is?---Well, within the department we have these groups which sort of involve people which have got interest around a particular area of research and teaching, so we had effectively two groupals, a thermo fluids groupal and the solids groupal.

PN278

So do you think it might have been decided at a groupal meeting?---No. I think it was certainly also discussed at a departmental meeting.

PN279

Well, from my understanding at one of these department meetings there was clearly then a change of policy? There must have been a policy before this discussion, is that correct?---I am not aware of any policy, I was not provided with anything before when I joined Monash University about any of these policies.

PN280

Well, before this meeting did you think you as a lecturer could just cancel a course if you wanted to for yourself without speaking to anyone?---Are we talking about any course or elective courses?

PN281

Well, just stay with elective courses?---No.

PN282

If you thought after a particular meeting you could as a lecturer cancel a course without speaking to anyone?---No, that is not the understanding, that is not how I've explained that. I've explained that by default, as I understand it, by default if an elective unit had less than 20 students then it was automatically cancelled.

**** JULIO SURIA XXN MR BOURKE
PN283

Okay. So it wasn't a decision of the lecturer. The department automatically cancelled the course with less than 20, correct?---That is my understanding.

PN284

Okay. Would you agree there is a practice within the department where important decisions are made they are generally documented?---Yes.

PN285

Would you agree it would be very surprising if a decision had been made that all courses - was it 20 or under, or under 20?---I recall that in fact the number was larger, as I've explained before, that it was 30, and that we settled on 20.

PN286

So 20 or under are cancelled?---Yes, a minimum of 20.

PN287

A minimum of 20 is cancelled, okay. So you have to get 21, is that correct, for the course?---A minimum of 20.

PN288

A minimum of 20 - - - ?---If an elective unit had 20 or less it was cancelled by default.

PN289

But you'd agree that that's a very important policy to set up, that a course under 20 would be cancelled, that's a very important - - - ?---An elective course.

PN290

Yes, elective course?---It makes a big difference.

PN291

Well, you agree electives are very important within the course structure?---It is, but there are many electives and some electives run with very few students because, I mean if we had a final year group of 100 students and we have 20 electives, you know, you would get on the average 10 students, you know, very few students per elective. So we had a broad range of electives. So electives are important but they are specialisation units for the students.

PN292

Don't you agree it's a very important policy if any elective under 20 is automatically cancelled, do you agree that's a very important policy? You don't think it is?---The way it operated was a default state.

PN293

No. Can you just answer my question?---Well, I can't answer it because I don't understand what you're trying to ask me.

PN294

You're trying to anticipate where I'm going, aren't you, and trying to - - - ?---No. I just don't know - - -

**** JULIO SURIA XXN MR BOURKE
PN295

Just let me finish. The way this works is I actually ask the questions subject to the Commission saying anything, and you answer them?---Okay.

PN296

But you're trying to guess where I'm going aren't you, and then trying to shape your answers accordingly, aren't you?---No, I'm not.

PN297

And you know I'm going to ask you if it's an important policy you'd expect it to be documented, you know I'm going to ask you that don't you?---There are many things that we - - -

PN298

Did you know I was going to ask you that, did you know that?---No, I did not know.

PN299

I'll ask you this. Do you agree that it's a practice of the department that important policies are documented?---It should be, yes. I mean it should be minuted.

PN300

And you'd know there's no such policy minuted that you're talking about, don't you?---I have stated that, yes. I am not aware of anywhere where this is written down.

PN301

Let's just have a look at the - there must have been a final meeting when it was finally worked out, correct, the policy, a final meeting of the department?---Like I said, I can't remember when it was. It was like eight years or more ago.

PN302

Do you remember who was there?---No.

PN303

Was there a vote?---No.

PN304

Do you understand that it required important decision for the department if any course under 20 is automatically cancelled, someone might want to say something about that?---Yes, there may have been but I just do not recall.

PN305

But do you agree that would be surprising if it wasn't put to a vote, such a significant decision that any course under 20 or less gets cancelled?---No, I'm not surprised because very few things get put to a vote unless somebody requests a vote.

PN306

Was it a unanimous decision?---I cannot recollect.

PN307

Did anyone speak out against the policy and say hang on, this is not fair, I run important elective courses of less than 20, that they shouldn't be automatically cancelled, did anyone say that?---People may have.

**** JULIO SURIA XXN MR BOURKE
PN308

I'm just asking, do you remember?---I cannot remember. I can't remember.

PN309

Do you think there might be some people on staff that would not be happy with this policy, would they?---There may have been. I can't recall.

PN310

And in fact you told his Honour that since this policy that's been announced, you've run courses of 20 or less, correct?---Yes, correct.

PN311

And as far as you believe you haven't got one iota of credit for that work?---I don't know what credit one gets given because at the end it's written on paper.

PN312

So you don't know whether you were given credit or not?---I don't know, no, I don't know if - I did it under the understanding that I would not get credit. If I did get credit I do not know.

PN313

Sorry, because I know you're careful with your language, but you say English is not your first language, but I got the impression when you were asked questions by Mr Rosenthal you told his Honour there was no credit, if you wanted to work the course you did so but the department would not recognise the work?---Yes.

PN314

But you've just said then you don't know whether it was credited or not?---Well, I don't know if it's written down somewhere. Is that what you mean with credit?

PN315

Well, you just don't know, do you?---No, I don't know, no, I don't know.

PN316

You see, in your statutory declaration you expressly said it's not acknowledged. But that's incorrect isn't it? You just don't know?---Yes, that statement is incorrect.

PN317

Yes. Now, you as a scientist you would know that's inadequate to say it was not acknowledged when you actually don't know the facts?---If I could measure it, yes.

PN318

You'd agree that's inadequate?---Yes.

PN319

Yes. I'll just tell you one other thing. You said it was 20 or less is cancelled. In your statutory declaration you say below 20?---Yes.

PN320

You'd agree it's significant, if it's going to be an automatic cancellation you know whether it's 20 or below, or below 20, that's significant?---You would like me to put there and less than or an equal sign on there, is that what you're saying?

**** JULIO SURIA XXN MR BOURKE
PN321

Well, I'm just asking, you agreed - - - ?---Below 20.

PN322

You said something different in your statutory declaration as to the magic number?---Below 20 meant 20 or less. I'm sorry if that was an incorrect statement to that degree.

PN323

Did you apply your mind to get this correct when you did your statutory declaration, did you apply your mind properly?---Yes.

PN324

To make sure this was accurate?---Yes.

PN325

Or were you influenced by the fact that you're trying to help Associate Professor Shirinzadeh?---No. I wrote down as I understood the policy and arrangement to be as pertaining to this, to elective units.

PN326

Let's come back to this meeting. At what point would the course be cancelled? Was it done by way of enrolment or was it measured at a particular stage during the course, can you answer that?---Yes, okay. As far - prior to 2000 we used to have at the budget meeting the enrolment numbers, and the budget meeting is held around the second week of February, and the academic year usually starts either the last week of February or the first week of March. At that time we had the numbers as enrolled, and you would know how many students would be there, and it would be at that stage where this policy arrangement, principle would apply.

PN327

So it would operate - I mean this is the fact isn't it, from 2005, let's just take 2005, anyone would know at least a month out what their numbers are for an elective course, correct?---Yes, once the students have enrolled. I'm not sure when those numbers are available. But then the students also have the option of course to change their enrolment once the subject has started.

PN328

Right. Well, just concentrating, putting aside late changes, three or four weeks out an academic can look at their elective they're teaching and see how many are involved, correct?---If they know what they're teaching, yes.

PN329

And if for example you knew what you were teaching on 25 February, and the semester doesn't start till 3 March, that would be right, the semester starts around 3 March?---Yes, something like that.

PN330

Then you could check as at late February how many people you've got in the course, correct?---It's actually quite difficult to check because you have to have access to the computer system, which I for example don't have, and those numbers have to be requested from an administrative person who will then send you an email list hopefully with enrolled in what subjects you're teaching, and that could take time.

**** JULIO SURIA XXN MR BOURKE
PN331

I'm just trying to work out when is the course automatically cancelled. Is it after looking at enrolments? You say the department automatically cancel it?---Yes. But as I said, prior to 2000 we used to have this information at the budget meeting. I am not aware of seeing this information since 2002 onwards because I was not around in 2001, I was overseas.

PN332

Well, are you saying an academic doesn't know how many their numbers will be prior to the course starting?---Yes. Sometimes we don't know. We might get an email with the class list perhaps the week before or a couple of days before the semester starts.

PN333

But you say you can't ring up someone and ask, they won't tell you?---They have to gather the information from the computer system which holds all the student records.

PN334

Well, they can push a button can't they?---It doesn't quite work that way, no.

PN335

But you'd agree an academic would want to know a few weeks before when they're preparing their course, is this course going to be cancelled?---Yes.

PN336

But you say the department won't tell them if they've reached the minimum number or not?---Like I said before, this used to be available at the budget meeting. It's at that point where one would make those decisions.

PN337

But you say the information has been kept from you from what year, 2002?---We haven't had that information - well, to my understanding I can't remember seeing that information certainly from 2002 onwards.

PN338

But has there been staff meetings where people have said, look, I want to object to not knowing three or four weeks in advance whether my course is going to be cancelled, I should be given the numbers, but the department aren't prepared to look it up in the computer, have those complaints been raised?---There has been comments made that not only that, but we should know what the subjects we may be teaching six months ahead.

PN339

Just concentrate on my question. You say people have complained, I want to know whether my course is going to be cancelled, I should be told by the department of my numbers, and the department is refusing?---Before you can cancel the course you must know what you're teaching. If you don't know what you're teaching you don't know what should be cancelled or not.

**** JULIO SURIA XXN MR BOURKE
PN340

But if you knew what you were teaching, have people complained they can't ask the department to find out whether they've got the minimum number or not?---Let me repeat my answer. You must know what you're going to be teaching before you can go down that path.

PN341

Well, I just want to work out, when does it automatically cancel? Is it the numbers just prior to the first lecture? How does it work?---I've just explained it to you, but I'm happy to do that again. That as far as I understand it should happen prior once we would know what the student enrolment is and we know what we're teaching. If you don't know the numbers and if you don't know what you're teaching, that's not provided, then I don't know how that - - -

PN342

Let's say you know what you're teaching, you know your numbers one week before and they're below 20, is the course cancelled?---By default according to, as I understand, it would have been.

PN343

All right. And what happens if you had over 20 but you turn up to the lecture and there's only 19 people turned up, does it automatically cancel?---No.

PN344

No, okay. But what happens after three or four weeks, you had 30 students, 20 drop out, you've now got 10, is it automatically cancelled?---No.

PN345

Why not? Was that explained at the meeting? Why doesn't it cancel
there?---Because it would be unfair to the students. You've already gone down the road of four or five weeks, you can't just cancel a unit once you - - -

PN346

But what about the first lecture, what happens if you turn up, you had 21 on the books, you turn up and there's only two students after the first lecture, is it automatically cancelled then?---No. What one would do is find out where the other students are.

PN347

Let's say on the day of the lecture someone drops out, it drops from 21 to 20, does it then cancel at the first lecture?---That is a boundary condition, and I think one would have to consult with the director for undergraduate affairs. But again, the academic would discuss this with the director for undergraduate affairs, and I would be surprised - - -

PN348

So are you saying you don't know how the policy works although you've lived under it for the last eight years in this type of circumstance?---I have just said, I have just explained to you how the policy works, it's a default state. You are now looking at cases one week, two weeks, 10 weeks. I mean we could say one week before semester finishes we will - once all the students - the class could be below 20, and what do we do, cancel it?

**** JULIO SURIA XXN MR BOURKE
PN349

Now, I want to take one of these courses, if they're 20 or below an they're automatically cancelled, but the lecturer wants to continue the course, what do they do?---What is suited.

PN350

Do they have to get permission? Do they have to get permission or do they just conduct the course?---No. You would discuss it, but I think that - for example in my case everybody was aware that I would want to teach it so therefore that is - - -

PN351

So you didn't tell anyone, the department thinks it's cancelled?---No, no. Because during the budget meetings the subjects are there with the units and you would say I'm teaching this unit. It is not as though people know they're there. The department - - -

PN352

Well, do you have to get approval or is it just your choice whether you want to teach it or not?---Well, approval in what sense?

PN353

Would you have to get approval from head of department to teach it?---To teach something?

PN354

To teach something that's otherwise by default cancelled, or you can just choose to do so?---I don't think that one needs approval to teach.

PN355

I'm asking you to think - you say you know about the policy. I'm asking you how the policy works?---And I've just explained it to you.

PN356

All right. Under the policy is it just your decision whether the course goes ahead, or do you need approval of head of department or someone?---You would certainly discuss it with the director for undergraduate first, in the first instance, and discuss it with the head of department. If approved, I mean, you're asking me a question, I'm answering it as well as I can, you know. I think you discuss it with the head of department, and I don't know that it's a matter of approval. I mean you are choosing to do something with the understanding that you may not get any teaching load allocation or credit for it, so it is my time.

PN357

Sorry, can I just understand. Shorthand have you just said you don't need approval, it's up to you?---To teach?

PN358

Yes, a course that's otherwise default cancelled?---No. You need to discuss it with the head of department.

**** JULIO SURIA XXN MR BOURKE
PN359

Do you think there's a difference between discuss and seek approval?---You need to seek approval in things which affect the students adversely. Here we're giving them a great benefit.

PN360

So you say now you do need to seek approval do you, or don't you? You know the policy, do you need to seek approval or not?---I have not seen anything written down where it says that you need to seek approval to teach.

PN361

Well, if the policy is not written down I'm asking you how you understand the policy works?---Okay, let me - - -

PN362

Do you have to seek approval or not to run a course which has been default cancelled, or don't you know?---The courses that I have taught which were under that number have run, and the head of department has been aware that they're operating naturally because it's allocated for classes, so he's aware of it.

PN363

But do you think the head of department can say no, I don't want you to run that course, or it's your choice?---I guess the head of department could say no, yes. I mean yes, he could say no.

PN364

But you say there's no formal procedure for the academic telling the head of department, I know this is default cancelled but I'm going to run it, there's no formal procedure to do that?---Not that I'm aware of, but there may be. I'm not aware of all the policies in the university.

PN365

When you spoke about rationalisation, that behind the policy was rationalisation, correct? You have to answer rather than nod?---Yes, okay, sorry.

PN366

One of the issues with having small classes is that they can take up quite a lot of resources can't they still?---Yes.

PN367

They can take up space in terms of lecture theatres, correct?---Yes.

PN368

Although that would take up your time, whether credited or not credited,
correct?---Yes.

PN369

And they can take up lab time and equipment, correct?---Could, yes, correct.

PN370

And you agree it would be very surprising if at the lecturer level the lecturer was deciding whether I would use all the university's or department's resources when the department's position is under 20 no go, do you agree that would be surprising?---Okay. When it comes to the resources allocated for tutorials there is no tutorial support given for electives so the lecturer has to do his own tutorials. The same applies to the laboratories up to the extent that occupational health and safety probably requires some technical support if there are laboratories running that unit. There are units where there's no laboratories. So the resources would be those of space for lecture theatres or tutorials, but those are allocated in the first instance in any case, they are there, they're allocated, that space is allocated because it's timetabled from the previous year.

**** JULIO SURIA XXN MR BOURKE
PN371

When you discussed these meetings when you were asked by Mr Rosenthal you said that there was discussion about possible cancellation, right, of courses depending on the numbers, correct, you said that?---In what aspect?

PN372

Well, do you remember you used the expression possible cancellation?---No, I cannot remember exactly.

PN373

Okay. And remember you suggested there was a general discussion on what courses should be cancelled?---In what aspect are you asking me the question?

PN374

I'm just talking about what your answers to - - - ?---But I don't know what aspect because there was a lot of questions.

PN375

He asked you about the content of these meetings?---You mean the departmental meetings?

PN376

Yes?---And are you talking about on an annual basis or are you talking about the meetings that we held - - -

PN377

No. I'm just asking about what I understood. I've got a note here of what you said in response to Mr Rosenthal's questions about these particular meetings when the policy was developed?---Okay, so when it was discussed.

PN378

And you agree you spoke about general discussion of when courses should be cancelled, correct?---Yes.

PN379

Sorry?---I don't know what your question is.

PN380

You're just wondering what I'm getting at don't you?---No. I'm asking you what the question is. I can't see your question.

PN381

I suggest to you these type of discussions you're talking about were just very general discussions and did not form any policy at all, did they?---No, they did not, as you say.

PN382

I see?---It's not correct to say what you've just said.

PN383

Do you agree that if there was such a policy which resulted in academics teaching courses where they would be given no credit for their work, academics would be very clear in their own mind as to what the situation is if they taught a course that was otherwise automatic and cancelled, do you agree with that?---It is as I've explained it clear in my mind to my understanding.

**** JULIO SURIA XXN MR BOURKE
PN384

Because you agree, if you teach a course, if you've been programmed to teach a course, right, you haven't - I'll go back a step. You develop work programs don't you with the head of department in terms of your allocation of work,
correct?---We do that now, yes.

PN385

And that could be in research, correct?---Correct.

PN386

And they'll look at how much admin work you do?---Correct.

PN387

And teaching?---Correct.

PN388

And as part of that assessment they still put in place, hopefully before the semester starts, correct?---Hopefully, yes.

PN389

And if you are given a teaching load of a particular course, let's say you're given two electives, right?---Yes.

PN390

Sometimes you might - it's not uncommon to have three subjects you might teach, correct?---Not uncommon.

PN391

And you might get two electives, correct?---Some people may have. I don't know what everybody's teaching load is.

PN392

Yes. No, but you could. You could get two electives?---That's absolutely possible, yes.

PN393

And it's possible two of those electives you could get a number under 20?---That could be possible.

PN394

Under your scenario if the academic chooses to teach those courses there's no recognition for two thirds of their teaching load, correct?---Correct.

PN395

And they are then exposed to a head of department saying you've only got one third teaching load, I'm going to give you more admin work?---That could be possible.

PN396

But you agree you're not clear whether when you taught these courses under 20 whether you were credited with the work or not, you're not sure are you?---If it was written down as not being credited, is that what you mean?

**** JULIO SURIA XXN MR BOURKE
PN397

No. I'm just asking you, you're not sure whether you were credited with the work load?---No, I don't know if it was recorded somewhere it's not being credited.

PN398

No one has ever come to you and said listen, you're teaching a course under 20 people, I want you to now do more admin work?---No, they have not.

PN399

And as recently I think as 2002 you have taught a course of under 20 people haven't you?---Yes. I think ..... had less students at that time, yes.

PN400

Now, I want to ask you some questions about career development. You'd agree, absolutely critical if you want to get to the level of professor or associate professor that you publish in respected referee journals?---Correct.

PN401

Correct. And that no matter how good a teacher you are, if you have a teaching load double everybody else, if you are not doing research that's generating publications in referee journals your chances of getting that type of honorific recognition of associate professor or professor is zero, isn't it?---Not true. I can think of a number of people within my department who got promoted possibly because of their teaching.

PN402

But they would have also been shown the ability to publish, correct?---There is a - when you apply for promotion you have to nominate the percentage of weighting that you want to the three different areas of teaching, research and administration.

PN403

But if you are readily publishing in referee journals that's a pretty good sign you're right up there isn't it?---You would put more weighting on your research part, but if you're doing more teaching you would put more percentage on your teaching part. That's how the forms are developed.

PN404

But if you're anxious, if you're anxious to boost up the number of publications you want to do each year, one way to do that would be to attempt to lighten your teaching load, correct?---I don't think so, no. I think we publish - - -

PN405

Well, don't think?---You've asked me. Can I finish my answer? We publish because we have done research and we want to provide it to the research community in our field. It is not just publish numbers for the sakes of it, even if that seems to be the conception of people. It is not philosophy, not my conception.

**** JULIO SURIA XXN MR BOURKE
PN406

Sorry, that's not the question I asked?---I'm just elaborating on the answer.

PN407

Okay, thank you. You'd agree if you want to improve the number of publications per year into referee journals you would be assisted if you have a lighter teaching load?---If you have more time for research you would produce more results and you would publish more one would expect.

PN408

I just want to come back to one of these other things about the policy. You've got a person like you, the department does not recognise this elective, this 20 or under, you want to teach the course, right?---Yes.

PN409

Whether you discuss or approval, right, you start teaching, okay? What happens if hardly anyone starts turning up? Are you then allowed to cancel the course?
---What do you mean if hardly anybody turns up? You mean nobody?

PN410

Yes, okay. You're up to week five and you're getting - you thought you were going to have 18 students, just under the 20, the magic number. By the time you're in week five half of your course has dropped out, you've got two people turning up to lectures. Can you then cancel? How does the policy work?---I don't think you can cancel the course once you - I think it would be unfair. Now, you're asking me as an academic?

PN411

No, I'm not asking you as an academic. I'm asking you your knowledge of the policy?---Of the policy? I can only comment on the policy as I understand it with the cancellation and as I have stated. In my statement I have said nothing
about - - -

PN412

I'm not asking you about what you said in your statement. Do you know whether the policy covers this type of situation?---I don't know.

PN413

You don't?---I don't know, no.

PN414

But the policy has been around about eight or nine years, correct?---Yes.

PN415

Have you ever been a head of department?---No.

PN416

Do you know that one of the jobs of a head of department is to maintain the academic programs?---Yes.

**** JULIO SURIA XXN MR BOURKE
PN417

Do you know that?---Yes.

PN418

Do you know one of the roles of a head of department is to allocate the work to the lecturers?---Yes, in an open consultative manner.

PN419

Now, I want to take you to an example, a case example. Associate Professor Shirinzadeh had - he taught three courses, do you understand?---Yes.

PN420

He had two electives with both enrolments, mechatronics and robotics under 20, do you understand?---Yes.

PN421

Am I correct in saying that unless he decided to teach those courses under the application of the policy he at the end of the day would be left with teaching one course of the three, is that correct?---Yes, as I understand it.

PN422

And would you agree that if you knew how many people were involved in the course you were teaching, elective you were teaching before the first lecture it would be more convenient to the students to tell them before the first lecture than announce it in the first lecture?---Yes, I do.

PN423

Would you also agree that looking at who actually turns up in a lecture, the first lecture, doesn't necessarily have a - is not necessarily a good guide to how may are enrolled in the course?---From my experience it's a reasonably good accurate guide to that. There's exceptions to it. The students often - can I elaborate on the answer? The students often look - they over-enrol and then drop subjects depending on if they, after the first or second lecture, like it or not like it, and they have - and it's within the regulations for them to be able to do that.

PN424

But you agree anything could happen on the first day of a lecture. It could be really nice outside and people don't want to go to the lecture, that can
happen?---Anything can happen.

PN425

There could be a university activity that there's free beer on?---That could be - - -

PN426

That can attract an engineering student can't it?---There could be a flood.

PN427

Yes, anything. You would think you would not only look, if you were concerned about numbers you not only look at how many people turned up, you'd double check what your enrolments were at the end of the first lecture?---Yes, of course. I mean you don't just go by the numbers that turn up.

**** JULIO SURIA XXN MR BOURKE
PN428

Now, it's fair to say isn't it that within a department, departmental politics issues can emerge, where one group can have one view on issues and another group can have another view on issues?---Yes.

PN429

And departments can get divided, they can become a divided house where one group of academics tend to club together and another group of academics tend to club together?---Yes.

PN430

You agree with that?---Human nature.

PN431

And you tend to be part of, if I can use the expression, a faction which involves Associate Professor Shirinzadeh don't you?---We work together, we discuss issues. I discuss issues with a lot of people.

PN432

I know that. But fair to say that you tend to align - your views though tend to be aligned in terms of issues that come up in the department?---Not on all issues.

PN433

Not all issues?---No, of course not. We have quite different views on quite a range of issues and have strong arguments and discussions about them but there are of course ones where we intersect, absolutely.

PN434

Would it surprise you that an objective observer watching the department activities might think, okay, I reckon Professor Soria and Associate Professor Shirinzadeh are pretty close on departmental issues generally?---On some we are, yes, on others we're not.

PN435

And Dr Honnery, one of the other witnesses in this case, people might think the same about Dr Honnery and your group, mightn't they?---Some people may form that view, yes.

PN436

Has that blurred your approach to this case, the fact that you in fact generally operate in solidarity with Associate Professor Shirinzadeh?---Not with respect to what I've said, no.

PN437

You've been subject to being censored by the dean yourself haven't you in recent times?---I believe that that's on appeal so therefore - - -

PN438

But before the appeal played out that's the situation?---Well, before the appeal yes, I was - - -

**** JULIO SURIA XXN MR BOURKE
PN439

Has that affected your attitude in terms of being able to really objectively focus on this?---No, because I actually made my statement well before I received the letter.

PN440

You know there's no such policy that you're talking about don't you?---I know there's such a policy as I stated and I understand it to be.

PN441

I don't have any questions.

PN442

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Rosenthal?

<RE-EXAMINATION BY MR ROSENTHAL [11.40AM]

PN443

MR ROSENTHAL: You've been asked a lot of questions about the policy. Why is your understanding of the details so unclear?---Well, it's now well over eight years ago, and it's really the general principle that in my understanding matters here, and I mean it's a simple principle. In elective subjects if the number is 20 or below elective units are by default cancelled, and if the academic chooses to lecture them he does so with the understanding that he doesn't get any teaching load acknowledgment for it. I mean that is it. I mean there's not more to it than that. And also like I said, it's eight years ago so I can't remember the details.

PN444

To your knowledge how widespread is the view that such a policy exists?
---Sorry?

PN445

How many of your colleagues, how widespread within the department is there a view of the policy similar to what you describe exists?---Well, I think that the majority would know if they were employed at that time and part of the department.

PN446

You spent some time talking about the process that used to operate in relation to budgets, allocation of teaching loads and student numbers?---Yes.

PN447

Does that still occur?---No, it has not. It has not occurred since about - well, I was away 2001, but I have seen no documentation which dealt with the allocation of teaching to different academics prior to the academic year since 2001. There used to be a discussion of who would be teaching what units, usually around August, six months before the next academic year, and then there was a discussion then once we had the numbers of enrolments in September at the budget meeting. There was a list that came out with the enrolled students and the academic's name against the units, and the students in those classes. I have not seen documentation or discussion to that since, certainly not since 2002 when I returned from my study program.

**** JULIO SURIA RXN MR ROSENTHAL
PN448

Where does that leave you in relation to managing your work load?---In a very uncertain situation, because you cannot plan ahead, you do not know what you may be teaching the following academic year, and therefore preparation for that, laboratory preparation if you want to operate the labs or do something, you just don't know what you're teaching.

PN449

Have you ever been caught by surprise by your allocation?---Yes.

PN450

Could you elaborate?---In 2003, January 2003 or February 2003 was the first time that we received for that year what we may be teaching, and there was complete - or there was quite a mis-match between the academic's area of expertise and what they were allocated to teaching, and there was no consultation of who would be teaching what and what the areas are before that, that year in January or February, or the year before. So I was caught by surprise, yes, at that time.

PN451

The usual factions has been raised and you were characterised as belonging to a faction that also included Associate Professor Shirinzadeh and Dr Damon Honnery. What do you understand by faction in the context that the question was asked?---Just people that may have in general agreed with everything, which we don't. In other words is like it doesn't matter what I might think, we agree that this is what we're going to be doing. And that is not the case. I mean I have my own mind and I certainly will not agree with any of my colleagues on anything, or anybody else for that matter, if I believe that that not be the case. I never have and I never will. So that's - I mean a faction to me, somebody who just agrees regardless of what, and that's certainly not the case.

PN452

Are there others within the department who, to the so called objective observer, might be grouped as a faction?---Yes.

PN453

That isn't the one that you have been characterised as being part of?---Yes.

PN454

Could you elaborate on that?---They tend to revolve around research groups, so for example there is a research group known as Flair, and the members within that group, and associated members who may not be even within that area could also be considered a faction then if that would be the definition of it. Are there other policies that apply - is there a policy manual for the department?---There is now since I believe this year we are given a policy manual.

PN455

Is it comprehensive?---Not in every aspect.

**** JULIO SURIA RXN MR ROSENTHAL
PN456

So are there aspects of academic and departmental life that are not covered by the policy manual?---Well, this particular, how to cancel or not cancel subjects is there, how to organise - - -

PN457

I'm sorry, is there or isn't there?---No, there isn't, there is no - I have not seen anything in there. How to improve laboratories for your subjects is also not mentioned, how to organise it, who to go and see about that, just to give some examples.

PN458

Thank you. That's all from me, thank you.

PN459

THE SENIOR DEPUTY PRESIDENT: Thank you. You're excused thanks Professor?---Thank you.

<THE WITNESS WITHDREW [11.46AM]

PN460

THE SENIOR DEPUTY PRESIDENT: Now might be an appropriate time to take a short break, and I propose to adjourn until 11.55. The Commission is adjourned.

<SHORT ADJOURNMENT [11.47AM]
<RESUMED [11.55AM]

PN461

THE SENIOR DEPUTY PRESIDENT: Mr Rosenthal?

PN462

MR BOURKE: Your Honour, just before Mr Rosenthal starts, if I could tender the agreement. I've provided two copies if you wish to mark one up.

PN463

THE SENIOR DEPUTY PRESIDENT: Yes. Actually there's a few markings. There's the authority to which you tendered before.

EXHIBIT #S7 DECISION RE SOUTHERN CROSS UNIVERSITY ENTERPRISE AGREEMENT
EXHIBIT #S8 DECISION RE MILLER V UNIVERSITY OF NSW
EXHIBIT #S9 MONASH UNIVERSITY ENTERPRISE AGREEMENT 2000

PN464

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rosenthal?

PN465

MR ROSENTHAL: Thank you. The next witness I wish to call is Dr Damon Honnery, who is present.

<DAMON HONNERY, AFFIRMED [11.57AM]
<EXAMINATION-IN-CHIEF BY MR ROSENTHAL

PN466

MR ROSENTHAL: What is your - you've called yourself Dr Damon Honnery in giving your name. Where do you work?---Monash University, Clayton.

PN467

And in what role - how long have you worked there, sorry?---I've worked at Monash University since 1993, first at the Caulfield campus and then at the Clayton campus.

PN468

In what faculty?---The mechanical engineering department, Faculty of Engineering.

PN469

Thank you. In what roles have you worked there?---I'm currently a senior lecturer, I've held the position of Director of Undergraduate Affairs for a year, and various other positions such as timetabler, I've coordinated a degree in the department.

PN470

Thank you. I want to present you with a copy of a document that was marked in evidence in August, marked as R5. It bears your name and signature. Do you recognise this document?---Yes.

PN471

And are you its author?---Yes.

PN472

Do you stand by what is written then?---Yes.

PN473

Thank you. The matter we're discussing relates to the existence or otherwise of your department's policy in relation to a minimum class size for electives. As you understood it in February this year, are you aware of such a policy?---I'm aware of an understanding.

PN474

And what was that understanding, what is that understanding?---The understanding of the staff, the general understanding of the staff in the department was that an elective could be cancelled if the numbers dropped below around 20, or in fact below 20 as I understood at the time.

PN475

Being an understanding is it in writing?---I have never seen it in writing anywhere.

PN476

Is it accessible in some other form to departmental staff?---Not to my knowledge, no.

**** DAMON HONNERY XN MR ROSENTHAL
PN477

Were you there when this policy or understanding was discussed in any minutes of meeting of the department?---I became aware of the policy in toto in around 2000 at a meeting to discuss subject allocation which I think was chaired by Professor Rhys Jones. I am not aware that it was a departmental meeting, but certainly it was a meeting to discuss allocation of subjects among staff.

PN478

And what role did Professor Rhys Jones hold at the time within the department?
---He would have been chair, head of department.

PN479

Head of department, thank you. Was that meeting minuted to your knowledge?
---Not to my knowledge, no. It may have been, but not to my knowledge.

PN480

So at that meeting what was said in relation to the matter of cancellation?---There was a general discussion as I recall about the operation of subjects within the department. There had been recently a rationalisation of the degree a number of years before, 1998, and there was a discussion which I took to be ongoing, because I had only arrived at the Clayton campus approximately a year before, and this was the first such meeting of this I attended. There was a discussion about what would happen if a subject dropped below 20. And I recall at the time that the subject that did drop below 20 would fall into the realm of being considered open for cancellation.

PN481

I want to expand a little on that response. You say open for cancellation. What does that mean?---Well, it would have been, in my understanding it would have been left up to the - whether it would have been cancelled would have been made available to the staff member, and the staff member would have been able to initiate the cancellation.

PN482

What would be the consequences of such a - sorry, I'll go back a step. Was there anything said about deadlines within the timing of the semester?---No, not to my knowledge.

PN483

What would be the consequences of cancelling or not cancelling, what sort of choices might an academic be facing?---I understood at the time, and I still have this understanding, that the way subjects were allocated then and the way work load was calculated then, that if a staff member chose to continue running a subject they wouldn't be given credit for that subject.

PN484

What would it mean to not be given credit, what consequences might there be?
---At the time the consequences would not have been significant. At the time there was no - as we currently have work load calculation or work load model, whether we have that or not at the moment is a matter of some conjecture. But at the time there was no uniform faculty wide distribution or calculation procedure for work load. The department did have its own subject allocation model that it was running. I'm not familiar with how it worked, but in the end you would be given certain weighting for the number of subjects that you taught. The impact of that on your overall work load I can't comment on.

**** DAMON HONNERY XN MR ROSENTHAL
PN485

Can you refresh my memory. What time are we talking about when these discussions were happening?---It would have been at or about the second semester of the year 2000 in preparation for the following year.

PN486

In the second half of the year 2000 in preparation for 2001?---Yes, in preparation for the following year, yes.

PN487

And under the former chairman, under the former head of department?---Correct, yes.

PN488

You mentioned that you've held the position of Director, Undergraduate
Affairs?---Correct.

PN489

What is the role of that position?---I understand it to be head's nominee on matters of undergraduate - on matters dealing with undergraduate matters. When I took on - - -

PN490

What sort of matters does that - what does that mean?---At the time that I held the position it was that I had a general responsibility for overall enrolment procedures. That means I didn't run them but I had to be cognisant of them. It meant appearing before the faculty's, the Engineering Faculty's education committee, representing the department at that committee and any matters to do with changes to enrolment, alteration to enrolment, were usually dealt with by me.

PN491

And this was solely for undergraduate students?---Yes, that's correct.

PN492

And somebody else handled the postgraduate?---Yes, that's correct.

PN493

So if an undergraduate elective was short on students what role would the Director of Undergraduate Affairs play if any?---Are you asking me what I would have done at the time, or my understanding?

PN494

Your understanding of the role in relation to when student numbers were low for an elective. Is there a role for the Director of Undergraduate Affairs?---That is - when I took on the position I was given no instruction on what the role of the Director of Undergraduate Affairs was. When I was uncertain of my role I either sought clarification from the previous Director of Undergraduate Affairs, Associate Professor Steele, whom had held the position for a long time and to some extent was my mentor in that role, or I would have directed the question to the head to seek clarification.

**** DAMON HONNERY XN MR ROSENTHAL
PN495

So would the matter of the potential cancellation of an elective be a matter that you would seek advice on or act upon autonomously?---If a staff member had come to me with that I certainly would have sought advice on it, yes.

PN496

So as a previous Director of Undergraduate Affairs, when you were in that role what degree of autonomy in cancelling a lecture with small numbers of students did an academic have under the policy as you understood it?---You mean a course, sorry, unit, yes?

PN497

Well, like an elective subject, yes?---If a staff member had come to me and asked about it I would have directed the staff member to the head. As Director of Undergraduate Affairs I would not have held the view that the staff member had the right to do it.

PN498

Have you ever had cause to apply the policy in relation to subjects or electives that you were - - - ?---Not subjects that I've taught nor other people, but I have seen it in place.

PN499

So you've just said you've seen it in place. What have you seen?---I am aware of subjects that operated despite the option of cancellation, and some that have been cancelled.

PN500

Taking the ones that were cancelled, how was that done in your observation?---In my - well, I did not observe the cancellation. I became aware of it being cancelled. I can't say that I saw it happen.

PN501

Okay, so after the event you became - - - ?---Yes.

PN502

All right. Well, I won't explore that further. You've also mentioned you've seen some classes that were small continue to run?---Yes.

PN503

Do you know why they ran when they were so small?---In speaking to the staff member concerned I understood that they chose to operate the subject.

PN504

I'll leave it here for now. Thank you for that. I'll hand you over to the university's representative?---Thank you.

<CROSS-EXAMINATION BY MR BOURKE [12.08PM]

PN505

MR BOURKE: Dr Honnery, I just want to come back to your period where you were Director of Undergraduate Studies. You say that was after you actually had this understanding about class elective cancellations, correct?---Yes.

**** DAMON HONNERY XXN MR BOURKE
PN506

I just want to give you a hypothetical. Let's take an academic that's got a teaching load of three subjects, do you understand?---Yes.

PN507

He's got two of the subjects are electives with under 20 people?---Yes.

PN508

He comes to you and says listen, both these electives are under 20 people, I want to cancel them. What advice would you give him?---This is hypothetical of course.

PN509

Yes. But imagine you're back in your role wearing the hat as what's called Director of Undergraduate Affairs?---Even today if I - - -

PN510

Yes?---And perhaps I could answer it this way. If I held the position today I would advise the staff - I would seek clarification on what the cancellation would be to be certain about it.

PN511

Clarification from who, sorry?---The head of department. I would say don't do anything until I've sought clarification, that's all I would respond.

PN512

But what would you seek clarification about?---About what the - I would seek clarification about what's required for cancellation, to be certain about.

PN513

But didn't you have an understanding?---Yes, I did have an understanding, but that doesn't prohibit me from seeking clarification. This is an important matter, I would seek clarification on it.

PN514

You see, am I right in saying one very important issue in relation to the conduct of a department is whether a course - is course programs, correct, the design of the course programs?---The structure of the degree?

PN515

Yes, and whether a course, an elective is cancelled, and it's a fairly important decision within a department?---It would depend on the overall impact of the degree program. I can't say that generally, but it would depend on the overall impact on the degree. But in an elective - - -

PN516

You didn't think that procedures that are adopted in relation to cancelling electives could be a pretty important part of a department's life?---What procedures?

PN517

Whatever procedures were adopted for the cancellation of electives could be a fairly important issue in relation to the conduct of that department?---There was an understanding - - -

**** DAMON HONNERY XXN MR BOURKE
PN518

I'm not asking about an understanding. Do you agree that it would be an important issue?---If the department felt it important enough it would have developed a policy, if that's what you're saying.

PN519

From your own personal perspective as previously being a Director of Undergraduate Affairs would you see it as an important issue?---Could you state the question again?

PN520

Bringing your own experiences as a former Director of Undergraduate Studies would you recognise as an important issue what procedures have to be followed to cancel an elective?---You're asking what procedures would have to be followed?

PN521

No. Do you think that would be an important issue in the context of the department?---It would be - it could potentially be an important issue, yes.

PN522

And do you think another important issue would be the work allocation of staff and whether they had the ability off their own bat to cancel electives they were told to teach, that would be an important issue?---If work allocation is important work allocation would be made, and in many cases it's not. So as a general rule work allocation doesn't often occur.

PN523

You would know that an experienced academic should know that before they go off and cancel a course they should check with someone, don't you?---Like the Director of Undergraduate Affairs an experienced staff member would want to check that, yes.

PN524

Yes. And the immediate thing you'd want to do, you wouldn't act on an understanding, you would want to know what is the exact situation in relation to a significant step by cancelling one or two electives?---If I was a Director of Undergraduate Affairs and that was put to me, the staff member was talking about cancellation, I would have sought some clarification on it, yes.

PN525

And you would have gone to the head of department, correct?---If I was a Director of Undergraduate Affairs and a staff member had come to me I would have gone to the head of department.

PN526

Because you know one of the roles of head of department is setting up the course program, responsibility for that?---Responsibility for it perhaps, but not setting it up. I think that's too broad.

**** DAMON HONNERY XXN MR BOURKE
PN527

Okay. And part of their responsibility is also the allocation of work to the
staff?---Part of their responsibility is allocation of work, yes.

PN528

And that's why you would direct the question to the head of department as the obvious person to speak to, correct?---If I was the Director of Undergraduate Affairs and they had come to me I would have sought clarification of my understanding of that, yes.

PN529

You wouldn't have felt sufficiently confident to just tell that staff member who is wanting to cancel two electives, listen, I've got an understanding that if the course is under 20, the numbers are under 20 you can just cancel off your own bat, you wouldn't have said that would you?---Say it again, I'm sorry, could you repeat that?

PN530

You wouldn't have told the staff member who came to you and said I'm wanting to cancel two of my three courses, two of them are electives and under 20, you would not have said to them, well, it's my understanding it's up to you to decide whether you want to run the courses?---No. What I would have said, I would have recognised that the staff member has the right to initiate the process, but I would have sought clarification on what was actually possible. As a Director of Undergraduate Affairs I would have to look at the impact of that on the total degree because it's an integrated system. It's difficult to look at one subject often in isolation to the total operation of the degree.

PN531

You'd agree there's a big difference between initiating a process that might lead to the approval of the course being cancelled and a lecturer having the power to cancel the course off their own bat, there's a big difference?---There is a difference, yes.

PN532

And you know that's the situation don't you? Your understanding was that if a lecturer was faced with an elective of low numbers they could initiate a dialogue with the head of department to determine whether the course would be cancelled, that's the situation?---No, I haven't said that. What I said - - -

PN533

No, I'm not asking whether you've said it. I'm suggesting that's your understanding, wasn't it?---They would have initiated a dialogue. It could have been either with the Director of Undergraduate Affairs in the first place as the head's nominee, or they may have gone straight to the head. That is my understanding.

**** DAMON HONNERY XXN MR BOURKE
PN534

Yes. They had to consult someone. They could either consult the head of department , or if the consulted someone in your role as Director of Graduate Affairs you would escalate it to head of department?---Undergraduate Affairs. I would have sought clarification from the head.

PN535

Well, you would have escalated it to head of department. You wouldn't have made the decision off your own bat, would you?---Well, I don't know what you mean by escalated, but I would not have felt that I had the responsibility to make such a decision, no.

PN536

You would have felt the only person with the authority was the head of department?---To cancel a subject in that context, yes. That is my understanding. But certainly I understood it to be left up to the staff member to initiate the process.

PN537

And that's all that discussion you talked about with Rhys Jones, that's all that was about, what sort of numbers, if they get a bit low, whether you're in the zone for making an application to the head of department for cancellation, that's what you were talking about wasn't it?---There was more to it than that but that's the general gist of it.

PN538

That's the substance?---Yes. But normally of course those discussions would have taken place much earlier, and the total degree would have been made available.

PN539

Would you also agree that in your experience as a Director of Graduate
Affairs - - - ?---Sorry, Undergraduate Affairs.

PN540

Sorry, Undergraduate Affairs. If a course was to be cancelled the best time to cancel it is before the course actually starts in terms of being most convenient to the students?---That is always going to be the case. However I am fully prepared to accept that a course could be cancelled for other reasons.

PN541

Yes, exactly?---Sure.

PN542

But if it's low numbers, and the department you understand has an awareness of the enrolments in a subject, correct, before the course starts?---Notoriously unreliable enrolments.

PN543

But they have a guide?---They have a guide, yes.

**** DAMON HONNERY XXN MR BOURKE
PN544

You would prefer the assessment to be made before the first lecture, correct?---It's always preferable, yes.

PN545

And that gives the opportunity of the student to possibly change their preferences and be there in time for the first lecture of an alternative subject doesn't it, that's one of the advantages?---Yes, of course.

PN546

Let me give you another hypothetical. An academic comes to you, right, you're the Director of Undergraduate Affairs, they, instead of saying to you, I've got two electives of the three courses I'm teaching, they're both under 20, I want to know whether I have to teach them or whether they can be cancelled, right, and he just comes to you and he says two of those electives run to 20, I've told the students the course is cancelled, right, he tells you that. Do you understand what I'm saying?---Well, you've said quite a lot there. Perhaps you can paraphrase - - -

PN547

Do you want me to go over it again?---Well, I think you started somewhere then ended somewhere else.

PN548

Do you want me to repeat the question?---If you could be clear about the hypothetical.

PN549

Yes. You've got an academic coming to you, he tells you I've been allocated a work load of three subjects, two are electives, they're both under 20, I've told the students the course is cancelled. You as Director of Undergraduate Affairs would not be happy with that situation would you?---I would have sought clarification on how that happened.

PN550

Well, let's just say he said, well, I've got a kind of understanding that if they're under 20 I can cancel, I've heard of it around the traps, so I told the students I've cancelled it. You wouldn't be happy about that would you?---Well, it's not a question of whether I'm happy.

PN551

Just in terms of your experience as a director would you be happy?---Well, I'm telling you my experience. It's not a question of being happy, it's a question of trying to determine how this occurred. I would have sought clarification on how it occurred and - - -

PN552

And if he tells you - - - ?---Sorry, if I was completely - if this was the first time I had been confronted with such a situation.

**** DAMON HONNERY XXN MR BOURKE
PN553

And the person tells you I had a kind of a general understanding if you've got low numbers you can cancel off your own bat so I did it, I cancelled two of my three courses?---Cancelled how many?

PN554

Cancelled two of my three courses. Would you raise the matter with the head of department of that had occurred?---I would have sought clarification from the staff member on how it had happened and I would have as Director of Undergraduate Affairs asked him why he hadn't come and discussed it with me in the first instant.

PN555

You would have expected that wouldn't you?---So I could provide information on the impact, yes. I would want to know, yes.

PN556

And if he said look, I just kind of had a general understanding, someone had mentioned to me that under 20 it can be cancelled, so I thought I'll act on
that?---But I'm not too sure that a staff member would phrase it like that. I think you're being overly casual in the hypothetical, if I can put that to you.

PN557

But would you bring the matter to the attention of the head of department?---I would have asked him firstly if the specific staff member had brought it to the attention of the head of department.

PN558

No. And the staff member said no, I didn't speak to anyone about it. I told the students?---Well, I then would have gone and sought a meeting with the head to determine what the situation would be.

PN559

You wouldn't be that impressed would you with that academic doing that without talking to you or head of department?---Well, this is a hypothetical, so whether I'm impressed or not I can say is not what the case here.

PN560

Is it the case that you're not prepared to admit you wouldn't be impressed because you think that answer may hurt Associate Professor Shirinzadeh, is that why you won't agree or you wouldn't be too impressed?---No, I don't think that's the case at all. That's an assertion.

PN561

I know it's an assertion. I'm just asking, you say it's got nothing to do with
that?---With the individual involved?

PN562

Yes. That you're not prepared to indicate you wouldn't be too impressed with that academic?---Well, I'm saying to you, you're putting forward hypotheticals, and I think I have the right to say if it's a hypothetical that my feelings would depend on the entirety of a situation. You can't paint me into a corner by whatever means you like.

**** DAMON HONNERY XXN MR BOURKE
PN563

Did you feel I'd painted you into a corner?---No. What I'm suggesting is that you were putting forward a hypothetical and seeking a response, and I'm saying that I would need to know far more about the case than you're allowing me the right
to - - -

PN564

MR ROSENTHAL: Can I interrupt for a moment and obtain some guidance from the Commission as to how far can hypotheticals be pursued in the seeking of a genuine estimate of emotional response to a hypothetical situation?

PN565

MR BOURKE: I've finished my line of questioning on that, your Honour.

PN566

MR ROSENTHAL: Given we still have more witnesses to hear I'd like some guidance of it in terms of future witnesses who might have a similar line of questioning. Perhaps it would be useful to my learned friend to get some guidance on that.

PN567

THE SENIOR DEPUTY PRESIDENT: Well, Mr Rosenthal, hypothetical, in order to pose hypotheticals, and of course if they're judged against questions relating to actual occurrences they possibly hold less weight than a question which is about a particular reaction to a particular passage of events.

PN568

MR ROSENTHAL: Thank you.

PN569

MR BOURKE: Dr Honnery, do you know whether it's a fact that if a staff member teaches a course with less than 20 people the department recognise that, do you know that that occurs?---At the moment?

PN570

Yes?---Yes. Although at the time of the understanding that was not the case because the structure of the work load has changed.

PN571

I see. So you say if you taught three electives under 20 back at your purported understanding, they're respectively ignored in terms of your work load?---No, that is not correct to say that. Rather it would be correct to say that if a view had been taken that they would be cancelled, yet the staff member chose to teach them in their own right they would not be given at the time what was called credit for teaching. I should point out that there was no work load model structure, and the notion of credit for teaching was really just a waiting system to distribute load.

PN572

So if I can just confirm what you're saying there. It's not that if you teach a course under 20 you get no credit, it's if the department have decided we don't want that course taught, but the academic says look, I'd really love to teach that
course - - - ?---If - - -

**** DAMON HONNERY XXN MR BOURKE
PN573

Sorry, can I just finish the question?---Certainly.

PN574

And the academic says I really want to teach that course irrespective of the department's view, the department may say okay, go ahead and teach the course but we're not going to recognise it as part of your teaching load. That's the situation isn't it?---My understanding is that if the department had chosen, in other words there was general agreement at the meeting I attended it was put forward that if there was general agreement that this particular elective, to be specific, didn't run and the staff member opted to teach the elective, then they would not be given credit for teaching the elective.

PN575

So they've adopted a position contrary to the department's preferred position, which was that the course not run?---Correct. That's my understanding, yes.

PN576

Now, just in terms of department issues, do you find that you tend to side with Associate Professor Shirinzadeh on many of the issues that come up within the department?---I'm a man of independent thought and don't have a predisposition to side with any particular person.

PN577

Okay. I have no further questions.

<RE-EXAMINATION BY MR ROSENTHAL [12.27PM]

PN578

MR ROSENTHAL: I just want to address a couple of matters that arose out of that cross-examination. A matter came up about what amount of guidance was available to the department in terms of student numbers prior to the commencement of the semester?---Yes.

PN579

And you said that they were as a guide, they weren't, I take it from that - are they precise numbers, are they reliable numbers?---No.

PN580

What is your experience of the relationship between those numbers and then what actually happens in the first couple of weeks of the semester?---That would depend very much upon the individual subject, whether it was a subject service to another department or whether it was an elective or the year level, but in
general - - -

PN581

Well, let's talk about it, all right?---But in general it's been my experience that they go down. I've only had one subject where they in fact went up that I'm able to recall.

**** DAMON HONNERY RXN MR ROSENTHAL
PN582

Is there any theory attributed to why they go down?---Yes. The students are asked to enrol very early on, and it's provisional enrolments, that's my understanding. So once they have their results there will be changes to their enrolment because of the structure and prerequisite nature, you must have a subject before, for example you can do a higher level subject. So there will be a lot of reshuffling of that. And students may also opt to dis-enrol or change their mind over summer, which is often the case.

PN583

So the enrolments take place when, what stage of the - talking about say a calendar year for enrolment for - - - ?---Generally towards the end of the preceding year.

PN584

For the subjects in second year and beyond?---For the following year, yes.

PN585

Okay. And so they're enrolling around November, December?---I can't give the exact date.

PN586

Somewhere around there?---That's my recollection. I can't be certain about it.

PN587

And then they commence the semester in early March?---Late February.

PN588

So the department has some numbers, they're a guide, your experience is that numbers go down?---Generally, yes.

PN589

Generally. Not without exception?---Not without exception, yes.

PN590

How can an academic plan for that situation?---It is very difficult. It's an approximation of planning. What you tend to do is over plan often, speaking from my own experience, so you don't like to print twice as many notes as you have to if you're handing out notes because you have piles of notes sitting around. So what you try to do - of course organising laboratories is notoriously difficult, particularly with the changes that have been occurring in the department. Many of the labs are being rebuilt at the moment and there's a lot of uncertainty about where they in fact will be. So at the moment planning is extremely difficult.

PN591

Coming back to the understanding as you call it. As a Director of Undergraduate Affairs did you ever have to deal with the situation of a cancellation of an elective?---No.

**** DAMON HONNERY RXN MR ROSENTHAL
PN592

So delving back into the hypothetical that was raised and changing it just a little. If you had dealt with this situation several times and it arose again, would you necessarily go to the head of department if the circumstances were familiar, if a pattern of circumstances was familiar?---If I understand what you're saying, and I'll be careful about this, if a pattern had been established with that objection and I had had some role in that pattern I would have felt comfortable in acting, what had occurred previously, if it was sufficiently similar in detail. But of course every case is unique, it's very difficult to make that judgment, but I would feel comfortable.

PN593

But we're being hypothetical, you currently have licence here?---I do appreciate that.

PN594

So if it was a pattern that was sufficiently similar to a matter that you had already explored and understood?---If I was confident that it was sufficiently similar I would have been confident to undertake an action that was similar to the previous one, yes.

PN595

Without reference to the head of department?---Once again if you're saying it would depend on the - if it was the case that the head of department had had a role in the previous one I would have engaged the head of department. If it was the case that he hadn't had a role I would have undertaken if it was my - you understand my point?

PN596

Yes, I do. Thank you.

PN597

THE SENIOR DEPUTY PRESIDENT: Thank you, you're excused. We're now breaking for lunch, so you're obliged not to talk about your evidence to later witnesses which are Mr Field and Associate Professor Shirinzadeh?---Thank you.

<THE WITNESS WITHDREW [12.33PM]

PN598

THE SENIOR DEPUTY PRESIDENT: I propose now we might break for lunch and resume at, say 1.45. The Commission is adjourned.

<LUNCHEON ADJOURNMENT [12.33PM]
<RESUMED [1.48PM]

PN599

MR ROSENTHAL: My apologies. Our next witness is available now.

<BRUCE WILLIAM FIELD, AFFIRMED [1.49PM]
<EXAMINATION-IN-CHIEF BY MR ROSENTHAL

PN600

MR ROSENTHAL: Good afternoon. Could you state again your name and your workplace?---Bruce Field, I work at Monash University.

PN601

And what position or title do you hold there?---Associate Professor in the Department of Mechanical Engineering.

PN602

How long have you worked with the department?---Since the middle of 1990.

PN603

In what roles have you worked there?---Principally in a standard academic role. Administratively I had a role of Director of Undergraduate Affairs for three years, otherwise normal lecturing and research role.

PN604

During what period were you Director of Undergraduate Affairs?---1997 to 1999, three years.

PN605

Thank you. Who was head of department at that time?---For most of that time it was Professor Melbourne, and for one of the years it was Professor Jones.

PN606

Okay, thank you. I want to present you with a copy of a document that's previously been tendered as evidence and it's marked as R6. Take a bit of time to look through it. Do you recognise the document?---Yes, I do.

PN607

And are you its author?---I am.

PN608

This has previously been presented as evidence as a statement made by you. Do you stand by the contents of that document as accurately reflecting your views and knowledge?---Yes, it accurately reflects those views and knowledge at the time, yes.

PN609

Okay, thank you. I'd like to ask several questions then. The matter we're discussing in the Commission here relates to the existence or otherwise of your department's policy in relation to a minimum class size for electives. Are you aware of such a policy?---Am I now aware of a policy or was I aware, sorry?

PN610

No, that's a good question. Had I asked you this question in February of this year, did you think there was a policy in place?---Yes, I believe so.

PN611

And what did you think that policy to be?---The policy I believed it to be that if the class size was sufficiently small the class would be cancelled, the unit, the subject would be cancelled. That's the basic. There were follow up elements on that.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN612

Was there a number that you could attach to sufficiently small?---Not specifically, no. There was probably - - -

PN613

Is there an order of magnitude you can give to it?---Well, I had the feeling it was in the teens, that is somewhere between 10 and 20, but I gathered it varied from year to year.

PN614

Is such a policy in writing anywhere to your knowledge?---Not to my knowledge.

PN615

How did you learn of the policy?---I believe I heard it during a meeting that one at least of the senior academics in the department was present, probably Professor Melbourne or Professor Jones. It may have been what's called a groupal meeting, a partial department meeting, or it may have been a full meeting, I don't recall. But the element of concern - the element that I picked up from that wasn't so much that there was a number, it was that academics who were due to be teaching a subject that then was to be cancelled for it's small size would have the right to say yes, we will teach it or we'd like to teach it. So there was a number somewhere in there that determined whether it would run or not.

PN616

So I might try and pick that a little. Are you saying that the standard practice was to cancel the unit that was deemed to be too small and - - -

PN617

MR BOURKE: I do object to the leading nature of that question.

PN618

THE SENIOR DEPUTY PRESIDENT: Mr Rosenthal, it's best to exercise some care in not leading the witness.

PN619

MR ROSENTHAL: Thank you. I'll try to reframe the question.

PN620

What occurred, what was standard practice if a minimum number was not obtained?---the standard practice would have been exercised by the chairman. I wouldn't necessarily know in detail, but my understanding of the standard practice was that the subject that was deemed to be small, under-sized, would be cancelled. I mean that's what I think I said before.

PN621

So that was the standard practice?---That's how I understand, yes.

PN622

And you also went on to say that an academic could deliver the subject anyway?
---Yes.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN623

Did that occur?---Yes. I can recall at least one case where that happened. I can recall one case where that happened.

PN624

How did that occur?---I wasn't involved in it, but my understanding was that the academic would then have approached the chairman of the department to say something like I would like to run that unit, subject I should say, the terms here, and permission would be given.

PN625

So it's your testimony that an academic had to seek permission. Is it your testimony that an academic had to seek permission to run a unit with low student numbers?---Yes.

PN626

Thank you. Have you ever had cause to apply this policy yourself?---No. I have really only once had to teach an elective unit for which it would have been applicable, and if it had a large number.

PN627

In your letter that's been tendered as document R6, I paragraph 3 you refer to having been Director of Undergraduate Affairs?---Correct.

PN628

What were your responsibilities when you were in the role?---There was a long list.

PN629

Without being exhaustive what were the main responsibilities then?---I think one would collectively call it the management of the undergraduate program, and I was also responsibility for chairing and leading the review of the undergraduate program, so they were two quite distinct roles. But there was counselling of students, involvement outside the department on things like unsatisfactory progress committees for the university and the faculty and so forth, essentially entirely undergraduate matters.

PN630

In relation to other academic staff what is the role?---I don't believe the role was told to me, but the role I adopted was to liaise between students and academic staff as the need arose. Basically for example if a student had a concern or a complaint I would liaise with the staff member concerned. I don't recall staff members coming to me seeking me to liaise in the other direction.

PN631

What about in paragraph 4 of your letter, you commence that paragraph by saying:

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN632

I was able to operate relatively autonomously in my duties as the chairman had effectively delegated the responsibility to me.

PN633

And you note that there were two people in those roles at the time during your three year period, Professor W Melbourne and Professor R Jones. I find that a little extraordinary. So perhaps you could explain what you mean by the next sentence:

PN634

I do not recall being asked to report any of my decisions to the chairman in this period nor receiving any more instruction from them other than a list of available elective studies for the upcoming year. I dealt directly with other academic staff in teaching and related matters such as student complaints.

PN635

Could you describe what that autonomy meant?---Well, I suppose principally the role was administrative in as much as I administered what was there, and there was no particular need to interact with anyone else. But there was some management type positions that I was able to make, like adjusting individual student course descriptions, what subjects they should or shouldn't study instead of something else, and recommending modifications on a one on one basis. I'm not sure if this is the area that you're asking the question.

PN636

Well, I think I'll have to explore a hypothetical. If an academic was concerned that student enrolments were low in an elective that was assigned to him and he or she came to you with a concern about those low numbers, what would you advise, what would you have advised at the time?---That's too simple a question. I wonder when, how would he know that the numbers were low and at what stage. It's a little bit difficult broadly speaking, sorry.

PN637

Very early in the semester or even indeed just before the semester, before the teaching commences?---I would have notified the chairman straight away.

PN638

And would you have referred the academic to the chairman or, as you said, you would have notified the chairman?---Well, they were the alternatives. I would either say you should tell the chairman or I will tell the chairman, and making sure that one of us did.

PN639

In paragraph 7 of your letter you describe changes in staff numbers?---Yes.

PN640

And then you go on about the changing popularity of various non core units, that's another term for electives?---Yes. Well, another term for subjects.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN641

Subjects. But being non core - - - ?---Sorry, a none core unit is an elective, yes.

PN642

Yes, it's an option to do it. It's not a necessary part of - I'm checking?---Yes.

PN643

Is it a necessary part of your degree course?---No. Non core means elective, something has to be done but not any particular one.

PN644

Right. You then go on to say that - I'll recommence that sentence, having clarified it:

PN645

In addition to the changing popularity of various non core units meant that student enrolments were sometimes significantly less than 20 and therefore uneconomic.

PN646

Could you explain that please?---As I said earlier, I understood that elective units somewhere in the teens therefore somewhere less than 20 are regarded as uneconomic, which is why they've been cancelled. And so it arose from time to time that subjects would fall into that category. I think that's all it was meant to mean.

PN647

Okay. You then conclude:

PN648

This meant that the department could decide not to offer all elective units every year and could withdraw elective units if enrolment numbers were too low without inviting moral challenges.

PN649

?---Yes.

PN650

Would the timing of such withdrawal be important, I mean in week 10 for example would that be a bit late?---No sensible withdrawal or cancellation of the subject could occur after the end of the second week of the semester.

PN651

You're quite categorical about that, why?---Well, that's the date at which students are allowed to change and when their liability to the HECS fees comes in. It's set in concrete basically. Students can't change after then. It's unreasonable to think the department could.

PN652

In paragraph 8 you say:

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN653

I recall the chairman Professor Melbourne decreeing that if enrolments in an elective unit were low the unit would be cancelled.

PN654

Where and when did he say that to your recollection?---I answered this in the earlier stage where I heard of what policy. I believe it was Professor Melbourne but I could be wrong, it could have been Professor Jones during a groupal meeting. It would have been a meeting of the department. I'm sure I heard that. I can't recall which one though.

PN655

At paragraph 12:

PN656

I recall two occasions in which electives were cancelled through not meeting an enrolment limit. One was as low as about 12 students.

PN657

Can you describe the circumstances of those two occasions?---I'm vague on it because I'm not a person who was involved in that process. What I came to know because I was - in those days the students would have to get a person like me to sign a piece of paper on adding and subtracting subjects. Now it's electronic and online and it can happen without my involvement or someone's involvement. So I always saw the students who were changing their program, so I certainly had several students on separate occasions who came to me to change a subject and I'd always ask why are you changing, and it's because this subject has been cancelled. So that's the circumstance without knowing specifically when and where it was.

PN658

In paragraph 14 of your letter you note that Professor John Sheridan, or Associate Professor as he may have been then, was only a fractional appointment in the department?---Yes.

PN659

And that he taught only core units?---I believe so in my memory. He'll be able to tell you shortly I suppose.

PN660

I suppose he will. You concede he may have assisted in level four electives. You draw a conclusion - well, you surmise I suppose rather than conclude that his understandably minimal contact with the department's undergraduate and staff management issues at the time could mean that he was unaware of the policy of cancelling electives?---Yes.

PN661

Could you explain what you mean by that?---It's a slightly long story. I must say what this letter was about, I was asked to write this with what I knew at the time, not expecting it to be in a place like this, and so I was trying to understand why this action had been brought against Shirinzadeh, and I was trying to hypothesise why this action might have been brought, and one of my hypotheses was that maybe Professor Sheridan didn't understand what I understood and I think Shirinzadeh understood to be a policy, so I was trying to hypothesise of why he did not know the policy maybe, and so I was trying to say his lesser contact for that period of time may have made him unaware that there was some sort of policy in place.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN662

Were you seeking to establish a basis of misunderstanding between them?---That's what I was trying to do.

PN663

Okay. This policy that you refer to, how widely - given it's not written down, how widely known is it in your view, how widely shared is it that this policy
exists?---Well, I don't know of a staff member who doesn't believe this, but then I haven't talked to all staff members. All the staff members associated with this instance, including Professor Hessami, was clearly - this is in a document that you may not have looked at yet - seemed to be aware of this policy. Professor Berreen seems to have been aware of the policy. So I don't know of someone who isn't.

PN664

In paragraph 18 you refer to the department's procedural policy manual?---Yes.

PN665

How familiar are you with that manual?---Well, not particularly. I've given mine back, but it's a document - I've only mentioned it again in this one not expecting it to be here, but I would like to be able to see policies written down, and the manual at this stage hasn't reached undergraduate policies at all, so it's just simply incomplete at this stage. I'm trying to find some data to say what is going on, but it's not quite there yet. It's not a criticism, it's simply not there yet.

PN666

It's a statement of fact?---Well, the last time I had the manual - - -

PN667

That the policy manual is incomplete?---Yes, that's right, yes.

PN668

By incomplete, what do you mean by incomplete?---Well, there never was a policy manual until Professor Sheridan started one, and it's going to take some time before it's complete for all the things we need to have in policy, and it very largely I think covers staffing matters and various other things at this stage, but not policies associated with how we run the department undergraduate program for example. We may never have one. So it might be a red herring. It wasn't meant to be either critical or otherwise, it's simply a statement saying, well, I'm still trying to find this information.

PN669

So how are decisions taken over matters where policy is not written down, how has the department operated so long without a policy manual? Are there other sources of authority?---Well, minutes of meetings would constitute policy but located in various places one would understand. In the case of the issue at hand about something like cancelling electives, it appears in spots in minutes at various types of meetings where the issue is raised but I couldn't see written down as a single statement. Generally I suppose it would be, in the end it's the chairman of department's responsibility on the application of what is perceived to be cancelled. But this would often come from advisory committees and groups. We believe so and so, and then the chairman would be responsibility for accepting or rejecting such matters.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN670

I want to turn now to the events of 8 March. As you know there was a meeting between Professor Sheridan and Associate Professor Shirinzadeh at which Professor Hourigan was present, and you were also present?---I was.

PN671

How did you come to be present?---Professor Shirinzadeh knocked on my door, or I had my door open, and asked me if I would sit in on an interview which was about to happen, and I think I was the only one in the corridor with the door open, so I went immediately. So I was asked right on the spot.

PN672

So you had no notice of the meeting?---No.

PN673

What were you told before you entered the room was the purpose of the
meeting?---It's a question you should have asked me before to think about, but I think on the way between my office and the interview in the room I think Professor Shirinzadeh told me that he was being quizzed, whatever word I might want to use there, over the cancellation of the elective that he had recently been involved with.

PN674

Did he give you a sense of the seriousness of the meeting?---I don't recall that he did. I'm sorry, it was back in March and I was grabbing pieces of paper and moving, not knowing what I was going to be doing. I don't think so. I don't recall the seriousness other than I think he felt that - he certainly said to me that Professor Hourigan is there as well, and so it was like a two on one potential type of argument, and he needed someone to be in there in case he's being railroaded. It didn't imply that he was going to be. I don't think he was railroaded, but I think it was just a caution, that he wasn't sure what was going to happen and therefore he'd like another person.

PN675

So this meeting came as a surprise to you?---Yes.

PN676

How would you characterise what went on in the meeting?---Characterise, that's a loose word. I've got to say I think there was some anger on both sides. Professor Sheridan certainly was angry at the events and Professor Sheridan was angry in response.

PN677

Sorry, you've said Professor Sheridan's name twice?---Sorry, Shirinzadeh was angry in response. And it was quite a tense meeting.

PN678

What did Professor Sheridan say the meeting was about, obviously once you were in there?---Yes. I'm trying to remember that specific detail. It was I think to do with - to investigate the circumstances or to find out the circumstances behind Professor Shirinzadeh's actions. That was an interview, an interview between the two to find out what had happened and why.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN679

You heard Associate Professor Shirinzadeh's response to those questions as in what happened and why?---Yes.

PN680

And you say in your letter at paragraph 20 that:

PN681

The chairman may not have been aware of it. It was clear that he -

PN682

And I take it by that you mean the chairman:

PN683

- maintained the sole right to cancel electives or insist on their retention.

PN684

You then continue:

PN685

Associate Professor Shirinzadeh's response at the interview was consistent with an understanding that his elective would be cancelled as a matter of policy and that if he did not take an appropriate action such as informing the Director of Undergraduate Affairs, a role which prior to 2000 carried significant independence, his efforts in teaching the unit would not be counted towards his work load.

PN686

?---Correct.

PN687

Is that consistent with your understanding of the policy as you understood it at the time, that it would not count for work load if the unit was too small in number?
---This is a response to that earlier question you asked me, that is, if a unit was cancelled because it was under-sized and an academic still taught it he would not be getting credit for it, notwithstanding - remember I said also that one would normally expect the application to the chairman to be able to teach it.

PN688

And clearly that's not what was occurring in this case because he'd cancelled the unit?---No, it wasn't.

PN689

He wasn't apply to run it?---That's right, he wasn't applying to run it. He was expecting it to be cancelled by my interpretation.

PN690

And was that expectation consistent with your understanding of policy?---With the evidence that I was presented at the time, yes, namely that there was something in the order of nine students involved. It was well under the number which I understood was ..... for cancellation.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN691

Clearly from your earlier evidence. What do you make of - at the meeting was there discussion of the state of the laboratories?---Yes.

PN692

What was said about them?---Both sides spoke about those. Professor Shirinzadeh's main point was that the subject couldn't be run, I think would be a simple way to put it, couldn't be run because the laboratories couldn't be ready in time. Professor Sheridan's comment was along the lines of, have you asked the resource manage who was responsibility I suppose for ensuring the laboratories could be complete or set up, have you asked him already to get it ready? And Shirinzadeh's response was no, I haven't. So they were the two elements of the discussion as I heard it.

PN693

Did you get any understanding as to why - I suppose I'll just leave it to Professor Shirinzadeh about the laboratory itself.

PN694

Do you have cause to use those laboratories in the course of your work?---No.

PN695

In paragraphs 9 and 10 you refer to the former work load model that applied in paragraphs 9 and 10 of your letter. Do you want to take time to find that?---Yes, I've found 9 and 10.

PN696

In paragraph 21 it becomes clear that this model as replaced by a new model that you assisted in constructing, is that correct?---Correct, yes.

PN697

Is it fair to say that you are a departmental and Engineering Faculty expert in the allocation of academic work load?---No, it's not fair. I'm not an expert in allocating work load. I think I'm reasonably expert in being able to measure work load.

PN698

And is it fair to say that without measuring work load you can't fairly allocate
it?---The word fairly is relevant.

PN699

Yes, it is?---No, that's not true. I think you can fairly allocate work load without measuring it. It's not transparent, but you can still be fair.

PN700

So what is the advantage of actually having the work load model? You've put a lot of time into getting one?---It's because the work load model as applied at the time for me seemed to be disadvantaging me, that is, I was really doing more work than the model had been recommending or suggesting, and so I believe the model that was being used was wrong, so I was trying to push for a model which would give a proper measure so that my work could be properly recognised.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN701

Well, given that you have accepted that you have expertise in the measurement of work load, how is direct lecturing now valued as a work load component?---The work value is numerical now, it has a number appointed, it's worth 100 points. That doesn't mean anything other than comparison to other things. So I'm not sure that the question has much meaning.

PN702

So it's a value of 100 points?---Yes.

PN703

Are there other elements than direct lecturing that form part of that work load component?---Yes.

PN704

Because by direct lecturing I am imagining someone standing in front of a group of people?---Yes.

PN705

What else is involved?---Well, in the teaching categories there are also the number of students one is teaching, and at a lecture the session is called tutorials where advice is given and help is given, demonstration which is laboratory type of work, looking after projects students are separate because the type of work is different, postgraduate students, postgraduate researchers, they all are specific numerical items in the current model, but there are non numerical items also like administrative loads which are negotiated.

PN706

Okay, thank you. How is postgraduate supervision counted in the work load model?---From memory I think it's 5000 of these points within that per full time academic - full time postgraduate student.

PN707

Take me back a bit then. If you were teaching a first year core unit of engineering to about 150 students, how many - I think you said something about 100 points before?---Per lecture. So there might be 20 or 30 lectures, and then there's a weighting associated with the number of students which brings up more points, and the normal teaching would expect laboratory or tutorial work as well. Collectively they'd be about the same I suppose or a little bit more than one postgraduate student.

PN708

So for example a core subject in second year engineering might be something like the same number of points as full time postgraduate supervision, is that what you're saying?---A little more than that because we have sort of 250 students in a mechanical course, so it might be 8000 or even nine, or something like this.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN709

THE SENIOR DEPUTY PRESIDENT: Can you assist me. Where are you going with this, Mr Rosenthal?

PN710

MR ROSENTHAL: Eventually I'm going to work allocation and how it occurs. The head of department is responsible for that process, and this is a work allocation matter, and an accusation has been made that the person who has brought this matter to this place is seeking to get out of his work allocation. So I believe that the process of understanding work allocation and what a person's work load is may be important to determining a view on the matters at hand.

PN711

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN712

MR ROSENTHAL: I'll try not to go so slowly through the rest of it.

PN713

There are other elements to an academic's work than teaching?---Yes.

PN714

In general terms what are they?---Within the university, research, administration, but also there's an element of what's called community service, activities which aren't specifically within the university.

PN715

Are those all taken into account with work load?---Yes and no. That is, the work load model only considers teaching, including postgraduate students, which is teaching, and one small element of research with is post-doctorate fellows. All of the others are not counted specifically within a work load model, but presumably they're taken into account in work load.

PN716

Is that part of what differentiates work allocation from work load measurement?
---The work load measurement only is measuring certain parts of a work. It doesn't necessarily - - -

PN717

It doesn't measure it. Okay, thank you. Does the department take steps to ensure the viability of units before offering them for enrolment? Do they seek to test whether there is sufficient interest?---Up until I read a submission document for the sake of this I'd have said no, I didn't know that. But I understand that polls have been taken at third year or whatever to seek interest. I wasn't aware of those until I read it as apparent fact.

PN718

As an experienced member of the faculty were you surprised to find that this goes on?---No, I'm not actually. I'm pleased that it does.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN719

Okay, good. Have you ever been in a position to discuss the results of those surveys, those polls?---No, I haven't. I don't think it was ever relevant to me.

PN720

I've jumped ahead a little, but I want to turn to document S2 that was registered when we last met, and I'm going to take you in particular - S2 was registered at the last meeting, and at page 3 is a file note from Professor Sheridan, which is his record of the meeting on 8 March.

PN721

MR BOURKE: It's at tab 9 of our folder.

PN722

THE SENIOR DEPUTY PRESIDENT: Yes, I've got it thanks.

PN723

MR ROSENTHAL: And I've given you pages 3 to 5 inclusive which in the copy you have is hand numbered 3, 4, 5?---Yes.

PN724

Now, you've already said that you were present at the meeting?---Yes, I was.

PN725

And we discussed the agenda, but just to resume this part of it can you again say what was the meeting about?---The principal elements was Professor Sheridan trying to seek I think the reasons why Professor Shirinzadeh had indicated to his students that the subject was being cancelled, that was the core. The second part of it I believe would be for Professor Sheridan to determine whether in fact that action would be maintained, that it would actually be cancelled after finding the reasons for example.

PN726

The document that I've just given you, have you had a chance to look at it before today?---I have.

PN727

Do you have a view as to its accuracy and completeness?---In those parts where it's specifically saying people said or did this its accurate, yes. I see that Professor Sheridan has put in thoughts and things that happened outside the meeting, which of course I can't comment on, his thoughts and those. There would be things left out. For example I raised a point at one stage which hasn't been raised, but I don't think it's necessarily critical, so it's what appeared to be relevant for the notes.

PN728

Do you think that Associate Professor Shirinzadeh's presentation of his case in that meeting has been accurately described?---Yes, I think so. I hadn't tried to think that as a specific element through, but I couldn't see that there's anything particularly odd about the description.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN729

Okay, thank you. It has already been raised in the university's submission that the meeting included within it an element of counselling. Do you have a view about that? Did counselling occur in your view?---I think so. Do you want to know particularly?

PN730

I was going to ask what form it took?---Well, there was no doubt left in my mind, and I believe in Shirinzadeh's mind that cancellation of subjects was now, if it hadn't been before, up to the chairman's choice, and Shirinzadeh should not act to tell students about cancellations in future. So that's a counselling element I think. That's how I perceive counselling. I suppose that when the outcome on the spot was that the subject would run and Shirinzadeh was directed to run it and he agreed quite willingly it seemed to me, that might be also counselling. I'm not sure whether that means - that might be taking a direction perhaps. So I'm not quite sure what counselling means in this context. But I think there was an element of understanding of future behaviour that came from there.

PN731

At the meeting itself what did Professor Sheridan say the problem or issue was, the purpose of the meeting?---I'm sorry, I don't recall in detail what that issue was. As I said before though, it seemed to me that he was trying to find out why the subject had been cancelled without being told first, and so it seemed to be the question, I think it was asked probably three times, which isn't quite clear here, did you cancel this subject without asking me first, it was asked of him three times. So there seemed to be a focus on trying to get an answer to a question of that sort.

PN732

Was an answer provided?---Almost every time I think. There was no yes or no, it was, I told Professor Berreen. And I implied from that that he regarded that as the equivalent. So I didn't, but this was the same thing type of response.

PN733

I think you've already pointed quite clearly to this, but just to make it very explicit. Was the re-institution of the unit sought by the department head, in other words you've cancelled it, now make it available?---The words are quite right. It was never cancelled.

PN734

We're now talking technicalities here aren't we?---That's right. The chairman said it will run, if that's the question you are asking, and you will run it and you will talk to the resource manager to ensure the labs can be set up, and that was it.

PN735

And Associate Shirinzadeh's response to that direction was?---By all means. Sorry, there was one further element which I think I may have mentioned. He still recommended that it not - he still held a recommendation that it not run. I will do it but it shouldn't sort of approach.

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN736

Why did he say it shouldn't run?---Well, he certainly believed that there were - well, now we're talking about the educational matters. There were a couple of educational things. Firstly he was saying that the small class numbers made it hard to teach, the style of teaching with groups or whatever made small numbers not as efficient, and the second was that he believed that the laboratories couldn't be ready in time. There was a large laboratory component. And I think those two reasons said that it really isn't a viable subject.

PN737

I'm nearly at the end. When the meeting ended what business remained incomplete, if any?---I don't recall that there was any business to be done. As far as I was concerned, or as far as I could see the unit had been reinstated, if that's the word you want to use, and would run, and that was I thought the end of the matter.

PN738

Was there any mention of a need to meet again for any of the parties?---I certainly don't recall that, and I don't think it's written either in Professor Sheridan's notes, but I could be swayed by the absence in there. I don't think there was.

PN739

As you know, this eventually became a matter of the censure of Associate Professor Shirinzadeh, and in the process of censuring someone the dean may undertake an investigation, whatever investigation he seems fit. That's more or less in accordance with the wording of the EBA. Were you ever approached by the dean in relation to this matter?---No, I wasn't.

PN740

That concludes my questions.

PN741

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN742

MR BOURKE: Excuse me, sir.

PN743

MR ROSENTHAL: Sorry, we're just discussing whether to interrupt at this point to call another witness who has come at short notice.

PN744

MR BOURKE: It's just that the logistics, Professor Melbourne cannot come back tomorrow, and the question is, do I start cross-examining Associate Professor Field, and I may have to interrupt that to interpose Professor Melbourne, or do I call Professor Melbourne now, and if Associate Professor Field could stand down.

PN745

THE SENIOR DEPUTY PRESIDENT: How long is Professor Melbourne available for?

**** BRUCE WILLIAM FIELD XN MR ROSENTHAL
PN746

MR BOURKE: For this afternoon.

PN747

THE SENIOR DEPUTY PRESIDENT: We've got a fair time to go, haven't we?

PN748

MR BOURKE: If your Honour pleases.

<CROSS-EXAMINATION BY MR BOURKE [2.33PM]

PN749

MR BOURKE: Associate Professor, do you have your document in front of you dated 28 July 2005?---Yes.

PN750

And just going back a step, you would agree that engineering is part of the sciences?---Certainly not.

PN751

It's not, okay. Would you see that - - - ?---Science is a part of engineering.

PN752

All right, thank you. And that you pride yourself on exactitude and precision in terms of the words you use?---Yes.

PN753

And did you compromise that at all in relation to this document?---Well, obviously I did otherwise you wouldn't ask the question, but I'm not aware of having done so.

PN754

Because I gathered from your evidence you felt you may not have prepared the document the way you did if you realised it was going to be tendered before the Commission?---That's correct.

PN755

Is that because you in fact wrote it with an eye of influencing the outcome in relation to Associate Professor Shirinzadeh?---Yes.

PN756

As an advocate, more prepared with a view of being an advocate on behalf of Associate Professor Shirinzadeh?---No, not at all.

PN757

Would you agree for example in engineering it's no good putting something forward if it's only half right?---No, I don't agree.

PN758

And did you apply the same approach when you dealt with this document for example?---Sorry, did you hear the answer to the question? I said I don't agree. It is okay to put things half right.

**** BRUCE WILLIAM FIELD XXN MR BOURKE
PN759

Okay. And did you apply that approach for this document?---Yes, when I put hypotheses. I put hypotheses.

PN760

I see. Can I just go to paragraph 8 of your document. Does that have any hypotheses?---No, it doesn't. That's how I understood it.

PN761

You unequivocally indicated that it was Chairman Melbourne - can I just indicate here, chairman is an equivalent term for head of department, correct?---Yes.

PN762

You indicated in your document it was Chairman Melbourne that issued the decree?---Yes.

PN763

And you're not sure of that are you?---Well, I confess there was a slight uncertainty that it might have been Professor Jones, but I have a high level of confidence it was Professor Melbourne.

PN764

You didn't put that qualification into this document did you?---No.

PN765

Why did you choose to put the qualification today when you were asked in your evidence?---Because I am here giving oath.

PN766

So did you have a higher standard today than your standard of accuracy you were expected in creating in this document?---Yes, I did.

PN767

Did you know that we had organised today for Professor Melbourne to come along just to answer that allegation, did you know that today?---No, I didn't.

PN768

Yes, I see. That didn't influence you adding in that it might have been Professor Jones?---Not at all. No, not at all.

PN769

Now, let's just have a look at the decree. You'd agree meetings of the department are minuted, there's a practice of minuting?---Yes.

PN770

And if a chairman of the department issued a decree you would expect that decree to be minuted?---Well, I would hope so.

PN771

Yes. And there is no such minute is there?---I don't know, I don't have the minutes.

**** BRUCE WILLIAM FIELD XXN MR BOURKE
PN772

You haven't made an effort to locate the minutes and have a look?---I don't own the minutes.

PN773

Okay. But you made no inquiry?---I've made no inquiry, no.

PN774

Did you ever see that decree minuted?---No, I didn't.

PN775

And let's just go to what meeting it was. I've heard you say groupal meeting or department meeting?---Yes.

PN776

Which one was it, or you don't know?---Well, I don't recall the actual occasion.

PN777

I understand that a groupal meeting doesn't include all the department, it's just one segment of the department isn't it?---Correct.

PN778

It would be very odd if a decree was issued at a groupal meeting if it was to apply right across the department?---No, not at all. It could be issued simultaneously to each group, and typically was.

PN779

Was there any discussion before the decree was issued?---Look, I'm sorry, we're going back now into the mid 1990s, and I don't recall the lead up to this.

PN780

Okay. Can you just tell me roughly what year you're talking?---Well, I'll say the aspect of cancelling low enrolment electives would have been repeated or known for the whole of 1990 to now, so it happens.

PN781

Is that what you said in paragraph 8?---Yes.

PN782

It's a repetition at regular meetings?---No. The - - -

PN783

Can I just come back?---Sorry.

PN784

At paragraph 8 you're recalling a particular meeting where there was a decree issued, correct?---Yes.

PN785

I'm just asking you about that meeting, as best you can you put a date on that meeting?---I would put it probably at about 1995 plus or minus two years.

PN786

I see. And do you say there was a definite number where if you were under it the course was definitely cancelled?---No, I didn't say that. No, I don't say that.

**** BRUCE WILLIAM FIELD XXN MR BOURKE
PN787

So there was no firm number, correct?---I can't say that either.

PN788

You're saying you don't know?---I'm saying I don't know, yes.

PN789

This is the policy, if I thought you recollect, everyone you've ever spoken to on staff knows about the policy?---Yes.

PN790

You'd agree if the policy had a strategic number below which the course would be cancelled everyone would know that?---Yes.

PN791

Yes, particularly a person that's been a Director of Undergraduate Affairs would know that?---Probably, but no different from - - -

PN792

And you are not able to say there is a specific number or not?---That's correct, I don't. I said earlier it would possibly be varying from year to year.

PN793

Well, do you say there was a fixed number that varied from year to year, or you don't know?---I'm saying the number would have varied from year to year. Whether it's fixed or not is something which is a bit odd to say.

PN794

Is it possible there might have been like a rough guide once it got to a particular amount the probabilities are it might be cancelled?---Yes.

PN795

And the question of who cancelled the course was ultimately a question for the head of department wasn't it?---Not necessarily. If there was a number chosen for that year.

PN796

Well, you don't know of any number chosen for that year do you?---No.

PN797

Assuming there's no number chosen for that year, you'd agree it would be a matter for the discretion of the head of department wouldn't it?---On that assumption, yes.

PN798

And if someone had come to you whilst you were a Director of Undergraduate Affairs and said I've got a couple of electives with low numbers, they're both in their teens, I want to cancel them, you would have consulted the head of department wouldn't you?---Yes, I would have.

PN799

And if someone had have come to you while you were a Director of Undergraduate Affairs and said I've got a couple of subjects, not many people have turned up to each one, they're electives, so I've told the students the courses are cancelled, you wouldn't have been very happy about that would you?---I would have been indifferent. It wasn't my job.

**** BRUCE WILLIAM FIELD XXN MR BOURKE
PN800

You wouldn't have worried about it?---No. I would have told the chairman. It would have been the same as requesting cancellation.

PN801

You would have seen it as significantly important to tell the chairman?---Yes. Or would have asked them to tell the chairman.

PN802

Do you understand that one of the roles of a head of department is responsibility for the course program?---Yes, absolutely.

PN803

And that it would become unworkable if lecturers off their own bat were cancelling courses without telling the head of department, would you agree that exercise would become unworkable?---That's a hypothetical circumstance.

PN804

Just try and deal with it. You told the Commission a moment ago you were able to at least get - you're allowed to give half truths if they're hypotheticals. Just do your best?---All right. If the chairman had said we will cancel things below - - -

PN805

No, no?---- - - - then if the person cancels it they will be following orders. I mean I'm sorry, that's - - -

PN806

But you've never heard - - - ?---No, no. You asked me a question and I'm giving you an answer. You only gave me a half question.

PN807

You had to add in a proviso that an order had been given there a certain number of students underneath that and the course will be cancelled?---What I gave you was an expansion of your hypothetical to include other information.

PN808

You've never heard of such a direction being issued have you?---A direction of?

PN809

That under a certain number of students the course must be cancelled, you've never heard of such a direction have you?---I don't recall that I have or haven't.

PN810

Now, just in terms of deciding to cancel a course, you'd agree the bet time to make that decision would be before the course starts?---Yes.

PN811

And if a lecturer was unhappy with the numbers that had enrolled in the course what they probably should do is contact their head of department and raise it with them, make a recommendation to the head of department?---I think the answer is no because the chairman already would have known how many people were enrolled in the course.

**** BRUCE WILLIAM FIELD XXN MR BOURKE
PN812

Well, you don't think the chairman would be interested to know what the lecturer's views were?---I would hope to think the chairman would be interested, yes.

PN813

You put this around the mid 1990s, correct?---Yes.

PN814

And you agree that right up to 1998 the average number of students in any elective or non core subject was about 20, correct?---I'd be guessing but that was my estimation.

PN815

And it follows from that, that quite a lot of the non core subjects run right up to 1998 had less than 20?---Yes.

PN816

Now, I want to discuss with you this situation of not recognising or not giving a credit for work done in teaching a course, correct?---Yes.

PN817

The situation is this isn't it, that if the head of department says to an academic I want this course cancelled, and the academic says well, Mr Head of Department, I really want to teach this course, the head of department effectively will say okay, that's fine but I'm not going to recognise it as part of your work load?---Yes.

PN818

And that's the situation regarding credits?---That's right, and that's the policy.

PN819

The situation is not that simply because you might not have on one view a particularly large class that the work in teaching that course won't be recognised, that's not the situation is it?---In that package, no.

PN820

Now, you expressed a view in paragraph 21 that Associate Professor Shirinzadeh had a bit of a tough work load?---Yes.

PN821

You knew exactly what his responsibilities were in order to make that assessment?---Yes.

PN822

Okay. Had you discussed it with him?---Have I discussed it with him, no.

PN823

His work load?---No.

PN824

It wasn't that he'd been complaining to you, gee, I've got a lot on?---No.

PN825

In fact I suggest to you Associate Professor Shirinzadeh had a fairly light work load compared to other staff at his level didn't he?---Not at all. I think it was quite huge, about as heavy as mine.

**** BRUCE WILLIAM FIELD XXN MR BOURKE
PN826

Now, I want to ask you another question. You've got a course which is going to need lab time in terms of a lab being set up, okay. It's going to be very inconvenient to set up a lab?---Yes.

PN827

Would you agree if that's going to be a blocker to the course running you would want to cancel the course before the course starts rather than in the first
lecture?---Absolutely, yes.

PN828

Now, I want to take you - do you have in front of you - I don't know if you do - the file note of 8 March 2005?---Yes.

PN829

As I understood your evidence you didn't have a big quarrel with the accuracy of that, correct?---Correct.

PN830

Can I just take you to page 2 of that document?---Numbered?

PN831

It's just the second page. I want to take you to about, it's about 10 lines down, and it's slightly indented after his decision, it's got BF?---Yes.

PN832

Do you have that?---Yes.

PN833

Does your Honour have that?

PN834

THE SENIOR DEPUTY PRESIDENT: I do.

PN835

MR BOURKE: And there's a note there, you as BF pointed out that Associate Professor Shirinzadeh could not cancel the course because he was not in the position to do so and that he could only recommend the cancellation?---Correct.

PN836

Was that a substantially accurate note of what you said at that meeting?---Yes.

PN837

And that was your understanding at the time, that it was not for Associate Professor Shirinzadeh to cancel a course, he could only recommend a cancellation, and the matter had to be ultimately left to the head of department, correct?---No, that's not the correct interpretation of that.

PN838

Okay. But you agree you are saying Associate Professor Shirinzadeh could not cancel a course?---That's right, neither for that matter could Professor Sheridan.

**** BRUCE WILLIAM FIELD XXN MR BOURKE
PN839

Well, you say the head of department can't cancel a course?---Correct, at that stage. No one can. They an dis-enrol all students so it doesn't run, but it can't cancel. It's just on the university's books not cancelled, it's just empty. And that was what I was referring to, on a semantic basis he could not cancel. That's what that was about.

PN840

That Associate Professor Shirinzadeh, you've got, could recommend the cancellation?---Yes.

PN841

But you said there's no such thing as a cancellation?---Cancellation of the students enrolments. He can't dis-enrol the students. He can recommend the cancellation of their enrolments. He can't do it. There's about three people in the department who can.

PN842

Who are they?---The chairman, the Director of Undergraduate Affairs and the administrator for undergraduate matters. And that was the point here, and when Shirinzadeh agreed that he couldn't that was the basis of it.

PN843

Yes, Associate Professor Shirinzadeh was also agreeing he did not have the power to cancel the course?---Correct, that's what it meant.

PN844

And Associate Professor Shirinzadeh, he said that's that I intended, and just go on. He was referring to the fact when he told the students go off and unenrol?
---Correct.

PN845

He intended actually to make a recommendation?---Yes.

PN846

No further questions.

PN847

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN848

MR ROSENTHAL: I have no further questions thank you.

PN849

THE SENIOR DEPUTY PRESIDENT: You're excused thank you, Professor.

<THE WITNESS WITHDREW [2.53PM]

PN850

MR BOURKE: Your Honour, I seek leave to interpose Professor Melbourne. I don't think there's any objection.

PN851

THE SENIOR DEPUTY PRESIDENT: No objection? Well, call Professor Melbourne then.

<WILLIAM HENRY MELBOURNE, SWORN [2.54PM]
<EXAMINATION-IN-CHIEF BY MR BOURKE

PN852

MR BOURKE: Professor Melbourne would you please state to your Honour, state your full name?---William Henry Melbourne.

PN853

And your address?---(Address supplied).

PN854

Just address your remarks to his Honour please. And your occupation?---I'm an engineer.

PN855

Now, you recently made a statement in relation to this proceeding?---Yes, I did.

PN856

Your Honour, can the witness be shown exhibit S6.

PN857

Are you familiar with the contents of that statement?---Yes, I am.

PN858

And are the contents true and correct?---Yes, they are.

PN859

Just one further question. It's been suggested that whilst you were head of department at one stage you've issued a decree that any units with low numbers must be cancelled. What do you say about that?---I don't think I've ever issued a decree in my life let alone on that matter.

PN860

I have no further questions.

<CROSS-EXAMINATION BY MR ROSENTHAL [2.56PM]

PN861

MR ROSENTHAL: Good afternoon, I'm Stan Rosenthal for the NTEU?---How are you Stan?

PN862

Good, how are you? You've answered frankly and briefly, but in giving your answer I was interested in the way you said it, I've never issued a decree in my life?---Not that I can recollect.

PN863

No, I'm willing to accept it. But it's said in this place and I'm sure said with honest recollection. I'm not challenging that aspect. In fact you come with a reputation of not being a person who rules by decree. I want to find out a little more - sorry, not so much find out as provide some further background. You have previously been the Chair of the Department of Mechanical Engineering?---Yes, I have.

**** WILLIAM HENRY MELBOURNE XXN MR ROSENTHAL
PN864

When did you hold that position?---From about 1975 or 6 almost without a break for 20 to 25 years. There were several breaks when I was on leave and when I was dean, and when Professor Jones was chairman, or head of department sorry. We've got to get that right.

PN865

Terminology?---Terminology is important to change. He was head of department at the time I was dean and also in my last year in the department.

PN866

Thank you. I've never worked in the university sector, and despite several years working for the union I'm still unfamiliar with some of the honorifics and their meaning. You're an emeritus professor?---Yes, that's correct.

PN867

Could you explain what that means please. I'm uncertain?---That means if you've been around long enough and been useful enough for long enough they appoint you as an emeritus professor when you retire.

PN868

Does that entitle you to anything beyond the honorific?---Yes, it does. It entitles me to a staff card at Monash University, all the privileges of staff without having to do any work. Basically you can continue your research and you can choose to enter into activities of the department if you wish, and in my case it was essentially supervising graduate students. Although in my first year of retirement I did take a full second year fluids course. That was always a sort of an agreement with staff that I tried to establish, that if they retired, because there wasn't enough money to replace people immediately, that they would be nice if they would give their course once more.

PN869

And then you had to do it yourself?---Of course.

PN870

You're obviously a very experienced departmental head. Did it ever arise that electives had very low student enrolments?---It certainly did.

PN871

What did you do about it?---Well, as I think I said in the statement here, there was a whole range of dealing with that situation. And of course electives changed over that 25 year period. Every staff member at one stage had as many electives as he liked to teach. That changed as student numbers increased and funding decreased and staff had to do other things. But by and large teaching loads and these sort of things were discussed at groupal meetings, which were the two groups within the department where everyone had their say. They'd either report through the chairman's advisory group meetings which I had every month for 20-odd years, and so that sort of discussion of whether an elective would run in the first place, because people are on leave and that made decisions you would not have an elective in that area unless someone else could cover it, these were all decisions that were discussed first by staff in either groupal meetings or back through the chairman's advisory group, and then eventually I would make a decision. But I'd have to say probably almost without exception a recommendation would come through that source and I didn't have to make a decision, I would just accept the recommendation because it was always sensible by the time it got that far.

**** WILLIAM HENRY MELBOURNE XXN MR ROSENTHAL
PN872

I've heard of people call university decision making collegiate decision making. Is that an example?---That's a good term for it, yes.

PN873

So it's what I might call consultative, it involves a lot of parties?---Yes, it can involve consultation. But in this case the teaching loads were discussed by groupals and people would organise to some extent their teaching duties and their load and then recommend.

PN874

Now, obviously that then went into a consultative process. There were two professors in the department in charge of disciplines. They would interact. But certainly yes, there would be consultation. And the final consultation was the departmental meetings, and certainly in my time, where we discussed teaching loads, and if some staff member felt particularly aggrieved he would have his say, and more often than not someone else would say, you know, I'll cover that if you want to go on leave for study leave for six months. It was very much a consultative process, no doubt about that.

PN875

Typically when were work loads allocated in relation to the coming semester? Did you do it on an annual basis or a semester basis?---Yes. Teaching loads I always tried to have sorted out by end of November, early December.

PN876

For the following year?---For the following year, yes, for the whole year. Now, I don't say that that solved every problem. There was usually some courses which may not have been resolved entirely until January, but by and large the teaching loads were established well before Christmas.

PN877

And did that create problems being before student enrolments were settled?---Yes, it did, particularly with electives because you don't know exactly what's going to happen there, so you had to do a bit of guess work.

PN878

All right, thanks for that. Do you think it was important that people had that sort of time to plan and confer about work load and teaching entitlement, yes?---Not just important, vital in my opinion.

PN879

Well, why do you say that?---Because it's just vital that people know what they're doing the next year as best you can organise it. Now, you can't cover everything, but - - -

PN880

Things go wrong?---Things go wrong, people get ill, all sorts of things happen.

**** WILLIAM HENRY MELBOURNE XXN MR ROSENTHAL
PN881

Turning now to your current role. You're an emeritus professor, you're still able to conduct research there I think you said?---Yes.

PN882

You use university facilities for that?---Yes, I do.

PN883

What are they?---They're the wind tunnel facilities.

PN884

And obviously your specialist field?---Yes.

PN885

Is the Monash wind tunnel a significant wind tunnel?---Yes, very significant.

PN886

THE SENIOR DEPUTY PRESIDENT: Mr Rosenthal, I'm just wondering how this ties into the case. It's very interesting to know that you have wind tunnels and they're very good at Monash?---They're not only significant they're probably the best in the world. That's a biased opinion.

PN887

MR ROSENTHAL: I will get there very quickly if you'll give me a little more licence.

PN888

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN889

MR ROSENTHAL: And do you consult privately?---Yes.

PN890

And are you able to use these facilities as part of your tools for consulting?---Yes, I am.

PN891

Your consulting I assume is a money making operation, not a charitable operation?---It's certainly a money making operation. It employs people, it makes money for the department and the university.

PN892

So that anticipates my next question. So the university gains a financial benefit from your use of these resources?---It certainly does.

PN893

Any specific groups within the university or just sort of
general - - - ?---Particularly the department, although the university makes great use of the facilities by bringing visitors over there in an endless stream.

PN894

Well, they're the best in the world you said?---That's right.

**** WILLIAM HENRY MELBOURNE XXN MR ROSENTHAL
PN895

Did John Sheridan succeed you or was somebody between you and he as head of department?---No. Rhys Jones was head of department in the last year that I retired, so I wasn't head in that last year. And I'm not sure, I think, if memory serves me correct, he was also head of department for the following year and John didn't take the headship until after that.

PN896

Have you known Professor Sheridan long?---Yes.

PN897

How long have you known him?---Probably upwards of 20 years.

PN898

Under what circumstances have you known him?---As a staff member, he was a PhD student, he was at CSIRO prior to that.

PN899

You, as we've noted, an experienced and long serving head of department. Did you experience that such organisations or that department at times has been faction ridden?---No, not in my time. No, that's probably not a totally true statement. Yes, there were factions. It goes back to 1967, and - - -

PN900

I don't think we need to go back that far?---No, that's all right. You asked a question, I can answer it quite clearly, because yes, there were factions and they arose from time to time, no doubt about that. How far they rose is the relative term. In 1967 or up till '67 the engineering faculty is set up by Professor Hunt and set up on discipline, and there was a head of a discipline. It was a new way of running a faculty. By 1966, which is only about four years into the system it was pretty obvious it didn't work, and so in 1967 Ron Bardon was made Chairman of Mechanical Engineering, and there were then four departments. The fifth, materials, hadn't been set up at that stage. And so we became a traditional departmental faculty if you like. At that point in time it was clear that there were two disciplines in mechanical engineering, and one of them was head of department and one wasn't. In fact one was an associate professor at that time, Professor Crisp became a professor and head of department in rotation with Professor Bardon for some years after that. Now, I think there was always some feeling and that did rise from time to time. I was very conscious of it. Perhaps your use of the word faction is too strong, that's why I answered initially no, there were not factions. But certainly there were faction like thoughts from time to time.

PN901

What do you believe fuels that sort of thing?---Look, academics, they're all prima donnas of one form or another, or if they weren't they wouldn't be any good as academics. So people have opinions, they hold them strongly and they'll carry them forward, and I think that's an excellent thing.

**** WILLIAM HENRY MELBOURNE XXN MR ROSENTHAL
PN902

I'll leave it there, thanks very much.

PN903

MR BOURKE: No re-examination, thank you.

PN904

THE SENIOR DEPUTY PRESIDENT: Thanks Professor, you're excused.

<THE WITNESS WITHDREW [3.10PM]

PN905

THE SENIOR DEPUTY PRESIDENT: We now move to, according to my records, Professor Shirinzadeh. I anticipate that might take some time.

PN906

MR ROSENTHAL: I'm afraid it's likely to, yes.

PN907

THE SENIOR DEPUTY PRESIDENT: Therefore we might break for 10 minutes and resume at 3.25.

<SHORT ADJOURNMENT [3.10PM]
<RESUMED [3.23PM]

PN908

MR BOURKE: Your Honour, if I could just hand up an extra set of our materials so you have documents you can mark. I just wonder if it's convenient to just mark two folders as just discrete exhibits rather than - if that's convenient, your Honour.

PN909

THE SENIOR DEPUTY PRESIDENT: All right.

EXHIBIT #S10 RESPONDENT'S CHRONOLOGY, OUTLINE OF SUBMISSIONS AND WITNESS STATEMENTS
EXHIBIT #S11 RESPONDENT'S EXHIBIT FOLDER
<BIJAN SHIRINZADEH, AFFIRMED [3.25PM]
<EXAMINATION-IN-CHIEF BY MR ROSENTHAL

PN910

MR ROSENTHAL: The question has just been asked of me what it is that you've got in front of you?---This is from the previous - - -

PN911

No, what are they? Are they documents that have been left behind?---That's right.

PN912

Yes, okay, you can pass them on. Now, what's in the folder?---It's just my notes of the things that you've given. Do I need them?

PN913

I think you're probably fairly familiar with the facts of your case?---Yes, I am.

PN914

Okay, we've heard your name as you gave your affirmation. For the record what is your workplace?---Monash University, Department of Mechanical Engineering.

PN915

And what is your professional title?---Associate professor.

PN916

THE SENIOR DEPUTY PRESIDENT: Professor, could you just please speak up a bit so that we can get it on the system thanks.

PN917

MR ROSENTHAL: Well, we don't hear, it's not a microphone. I think it's for the operator there.

PN918

THE SENIOR DEPUTY PRESIDENT: It's for the transcript and
recording?---Sorry.

PN919

MR ROSENTHAL: How long have you worked at the university?---About 11 years, 12 years, 1994, since 1994.

PN920

Since 1994, thank you. In what roles have you worked there?---I've been senior lecturer and associate professor.

PN921

I want to take you through the events. When did you first become aware you were assigned to teach the mechatronics unit MEC4457 in first semester
2005?---On 25 February, the day before the start of the semester.

PN922

Is it unusual to be advised so close to the start of semester?---Yes.

PN923

Where had you been previously? Should you have known earlier?---Well, generally there's a teaching allocation, list of teaching allocation that comes out, and I looked through my correspondence and I didn't see any teaching allocation. So I wrote to the head of department on 25 February and requested what teaching allocation.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN924

And you got a response?---On the same day, yes, and I was told that I was teaching MEC3462, 4456 and 4457.

PN925

How many of those are elective units?---Two of them are elective units.

PN926

With regard to MEC 4457 have you taught it before?---Yes.

PN927

To what numbers of students in the past?---Generally it's 30 to 40 students, sometimes it goes to 50 students.

PN928

Has anyone else ever taught the unit?---No. I was teaching jointly with Deane Blackman in the first two years in 1995 and 1996.

PN929

And since then?---Since then I've been teaching the class.

PN930

By yourself, okay. Has the unit prior to - well, has the unit ever failed to
run?---Yes. The unit was cancelled last year in 2004 when I was on OSP and even though there were 25, 30 students enrolled in it they received the email saying that the unit was not going to be run.

PN931

You mentioned OSP. Could you say what those initials stand for?---It's called Outside Studies Program.

PN932

What is that?---Our sabbatical.

PN933

Now, when did you first approach the Director of Undergraduate Affairs, whose name is Associate Professor Terry Berreen regarding your concerns about that unit MEC4457?---That was in late February. That was more in reference to the tutorial assistance because he asked me how many tutors I needed, so I talked to him about the tutorial and the number of demonstrators or tutors that I need, and then at the same time I informed him of my concern regarding the laboratory and the fact that the laboratory had been dismantled.

PN934

We'll get back to the laboratory in a minute. I've got to admit to being a little puzzled. You found out on 25 February that the unit had been allocated to you. Are you saying that you were talking with Associate Professor Berreen prior to that time?---Yes, because he asked me how many tutors I needed for these subjects. I was puzzled to some extent because there was no allocation of teaching and yet he was asking me that.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN935

Did he know for a fact that it had been allocated to you, or did he indicate that he knew?---Well, he indicated that he assumed that I may be teaching it.

PN936

So he didn't know for sure?---No, he didn't.

PN937

In that conversation?---That's right.

PN938

Now, you mentioned you discussed a concern about the laboratories. I'm having trouble visualising what that means, and I have done first year science courses and I work on campus now and walk past laboratories. But can you explain what a laboratory is for the purposes of mechatronics?---For mechatronics the laboratories involve students getting into the lab and doing experiments, in this case using the computers and the devices that are set up for them. Effectively the subject involves sensing, actuation and control, and the laboratories involve students programming and developing programs and controlling sensors, actuators, et cetera.

PN939

How significant is it to the overall unit, how significant is the laboratory work to the overall unit?---The laboratories form a great portion of the subject, almost one third of the subject because the subject is about sensing, actuation and microprocessor control, effectively the programming of microcontrollers.

PN940

How long does it take to set up a laboratory from scratch for this purpose?---For that subject it would probably take about three weeks.

PN941

It seems a long time?---There is a need to interface the computers with the devices such as the actuators, motors, sensors et cetera, and since that, they've all be dismantled, they were all dismantled in late October of 2004, it required re-setting them up, and there's quite a bit of work involved in doing so.

PN942

Why were they dismantled? Is that your normal practice to dismantle at the end of the year?---No, we don't dismantle them. There is renovations going on in the laboratory section in the department so they were dismantled for that purpose, because they were being stored somewhere else.

PN943

So by renovation you mean knocking out walls, rebuilding things?---That's correct.

PN944

Changing the power supplies, whatever that stuff actually turns out to be?---That's correct, and along with relocation of some 50 postgraduate students that were all removed from the areas that building constructions were being carried out.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN945

So that building became unusable for any purpose?---That's correct. Those laboratories became unusable, the space became unusable.

PN946

Did that become a building site?---Effectively.

PN947

So we'll just talk about your first meeting at which you discussed this unit with the Director of Undergraduate Affairs. Did you meet again prior to the first
lecture?---Yes. I met with him on the first or second day of the start of the semester and I indicated to him that I'm looking at cancelling this subject or having this subject cancelled. We had a bit of a discussion about the numbers and I was of the view that there were about 12 students in there, and he was of the view that cancellation of the subject, the magic number is 10, and I was of the opinion that it was 20. But also I explained to him that there is also the circumstances about the laboratories, and I don't expect, or I can't see how those laboratories are going to be set up in time for the subject.

PN948

What was your purpose in having this conversation with Associate Professor Berreen?---I was actually informing him that this subject shouldn't be running and should be cancelled. In fact I repeatedly stated that this subject should be cancelled.

PN949

What did you expect him to do with those statements?---Well, I expected him either to give me some guidance or let me know what needs to be done. And he didn't seem to be phased out by the fact that I'm saying it should be cancelled. He was of the opinion that the 10 was the magic number.

PN950

So you spoke with the Director of Undergraduate Affairs, you expected him
to?---To act or guide me or give me some advice or anything.

PN951

And you say he told you the magic number was 10?---Yes, he said the magic number was 10, yes.

PN952

And what did you take that to mean?---I took it to mean that if the number of students is less than 10 the subject will be cancelled, should be cancelled.

PN953

And who did you think would become responsible for doing so?---Well, I thought that I was the person to some extent responsible in raising the matter, and I was the person who should be initiating it and effectively carrying it through, doing it in fact.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN954

So why did you think that there was some cancellation available?---Sorry, I don't understand.

PN955

Well, you seem to have been operating under the impression that the unit could be cancelled and would be cancelled under certain circumstances. Why did you think that?---There was a policy or a practice that if the student numbers for elective subjects fell below 20 the subject should be cancelled because it's no longer viable for the department to carry it.

PN956

How did you learn of this policy or practice?---This was discussed in meetings, departmental meetings back in '97, 98, and so there was an agreement that that's really the case. In fact it was generally - it was pointed out that if the lecturer decided to teach the subject the lecturer would not get any credit towards it.

PN957

Have you got a written record of that anywhere?---No. The minutes of the meetings were not necessarily kept in those days. So if I can remember that Deane Blackman used to say it to me, that you should cancel the subject if it gets below 20. And I was to some extent concerned about that because at that time, 1996, 97, the number of students would have been in the order of about 17, 18, 19 generally. But it's gone up. It went up to 30, 40 right after that, because the number of electives were reduced in order to push the number of students into the electives.

PN958

There may be a bit of confusion. When you say Deane Blackman, that's not the dean of the faculty, that's a person's name, isn't it?---That's correct. Deane Blackman was the deputy head for a number of years, and he was the right hand man of the chairman at the time, Bill Melbourne.

PN959

Your first lecture in this unit was on 3 March, correct?---That's correct.

PN960

What was there when you arrived, who was there?---There were five students at the lecture, the venue, and there were five students there.

PN961

What did you do?---Well, I explained to them that given the number of students in the subjects, which are quite low, the subject is not viable based on the ruling or based on the policy that the department has, and also the fact that the subject laboratory is not set up and it was unclear when the space would become available to do so, the subject will be cancelled, I'm recommending the subject be cancelled. And I explained to them that they should go on and take another subject, another elective, in this case robotics for example, which was another elective to take.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN962

You said that you told them that you would recommend that it be
cancelled?---Well, I said that I' recommending it to be cancelled and, you know, it will be cancelled because of this.

PN963

Were you confident that your recommendation would be acted upon?---Yes.

PN964

Why were you confident?---Well, as someone who taught the subject for the many years that I have taught it, and someone who was leader for the mechatronics stream, because we used to have a mechatronics stream and I was the leader for that, I expected that my assessment and my judgment, sound logical judgment behind it would be okay with the department.

PN965

And was there a policy position to support that view?---Yes. The fact that subjects, electives with a low number of students will be cancelled.

PN966

On 25 February you were assigned responsibility, allocated responsibility for the unit, and you knew that the laboratories were being renovated. What steps did you take at that time to ascertain the likely availability at or around that time to ascertain the likely availability of the laboratory?---Well, I had been involved witness the laboratory manager or the operations manager because my own research laboratory was also under renovations. In fact three of my own research projects were dismantled and stored in what was a thermodynamics laboratory, so they were being stored there. So I had a lot of meetings with him during that month of February effectively. But before the laboratories, the mechatronics laboratories being dismantled, when they were being dismantled I was actually there, and I believe I had mentioned to him quite a number of times that this laboratory may be required in the first semester of the subject, right in the first semester generally. So the laboratory manager was aware of it. And during the process from October to that time I knew the state of renovations within the department, so based on my assessment he wasn't going to get that done, it wasn't possible.

PN967

So though you were on sabbatical you were still present on campus?---I was only there for postgraduate and undergraduate supervision so I was doing some research, so I had to look after my own students. I was coming in because I was at the Deakin University on sabbatical, and also I went to Korea in late October.

PN968

So how well did you understand the physical realities of the laboratory prior to
25 February?---My assessment of it was that there was - my own laboratory was about two months late, in fact more than that because it was supposed to be finished by end of December, but then it became end of January, and then finally my own research laboratory finished in April.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN969

So it was due at the end of December and delivered in April?---That's correct.

PN970

It's fair to say you had an intimate knowledge of the progress, intimate knowledge and interest in the progress of the availability of the laboratory building?---That's fine. It was general nature of what they call building works at the time.

PN971

Okay, thank you. On 8 March - sorry, no, one last thing. Given what you said to the students, how do you think they understood what you said?---I guess they felt that the subject will be maybe cancelled an I'm recommending to them to go and take other electives such as robotics.

PN972

Why were you recommending the changes in advance of authorisation?---Well, I was - because the fact that it was the first week and they needed to make that change quickly in order for them to be able to get into another subject so they don't miss anything from the other subjects.

PN973

Okay, thank you. On 8 March you had a meeting with Professor Sheridan about your announcement at the lecture. Sorry, I should establish one more thing. You said there were five students present when you arrived. Did any more students arrive?---As we were leaving about 15, 20 minutes past the hour, because I taught these five students for about 10, 15 minutes, about three or four more showed up, I think it was four, so all together there were about nine students there.

PN974

So you saw nine students?---I saw nine students.

PN975

Had you checked the enrolment number on the administrative records? How many students did you think were enrolled, did you know were enrolled according to your checking?---Well, the initial or provisional numbers that came out was 12, 12 students for this subject.

PN976

Just talking about this subject?---Yes, I think it was about 12, yes.

PN977

And when you say provisional, how old are those numbers by the time you get to lecture one?---They're probably about a week and a half, two weeks old.

PN978

So returning to this matter of the meeting on 8 March. Who called the
meeting?---Professor Sheridan called the meeting.

PN979

I'm sorry, I realise there's one other thing I've left out in the sequence of events that I want to follow. Having made the announcement at the lecture that you made, what did you then do?---Immediately went back to my office and went to see Terry Berreen, the Director of Undergraduate Affairs, and I informed him of the situation, the number of students that showed up, and I informed him that I recommended to the students to take another subject and that I'm recommending this subject be cancelled, it should be cancelled. And he thanked me and said I'll look after it.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN980

Sorry, are you saying that he said he would look after it?---Well, I sort of - he basically said yes, he said, well, I'll look after it and I'll take care of it. I expected him to - - -

PN981

What did you take that to mean?---Well, he would either authorise cancellation or make the cancellation official.

PN982

You met with Professor Sheridan on 8 March?---That's correct.

PN983

Who called the meeting?---Professor Sheridan called the meeting.

PN984

What did he tell you was the purpose of the meeting?---He didn't. I was contacted by his secretary and I asked what the meeting was about, and she wouldn't tell me.

PN985

She didn't tell you?---She didn't tell me, she said she doesn't know.

PN986

When was the meeting set up? You know, so you've had a conversation with somebody, when was that conversation?---That was on the Thursday, 3 March in the afternoon I believe it was, about 3 or 4 o'clock.

PN987

So you made your announcement in the morning and that afternoon there was a call from the office of the head of department?---That's correct.

PN988

And the meeting was scheduled for the 8th, which was the following Tuesday, as I recall the calendar?---That's correct.

PN989

Was that the first available time for the two of you to meet?---For me it was because on Monday I was going to the industry partner for an ARC package grant, and on the Friday I had students supervision.

PN990

Did you think this was going to be an important meeting?---Not at that time, no. I wasn't too sure what it was about.

PN991

Was it common for the head of department to attend a meeting with him?---No.

PN992

What did you find when you arrived for the meeting?---Well, I arrived and Professor Sheridan was there and Professor Kerry Hourigan was there.

PN993

Did you have any response to the presence of Professor Hourigan?---Well, my understanding was that I was meeting with Professor Sheridan only.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN994

What did you then on?---Well, I asked Professor Sheridan whether or not I should have someone present because it looked like Professor Hourigan was there as a witness, so I was wondering whether or not I should have somebody present, and Professor Sheridan indicated that I may, so I went and tried to find somebody to be present, and I found Bruce Field.

PN995

Okay, thank you. Once the meeting commenced what did you understand his purposes were?---Well, I understood the purpose that it's about cancelling the subject, or cancellation of the subject and the fact that I was told that I did not have the authority to do so.

PN996

Was there any other purpose that you could discern to the meeting?---Well, the purpose was that Professor Sheridan wanted me to teach the subject. And I said fine, I'll teach the subject, and that was it.

PN997

Did you have a view as to the advisability of teaching the subject ?---Well, I - - -

PN998

Sorry, did you express a view?---I did express my view. I said that given the current circumstances with the number of students, low number of students, and that being the policy that electives with a low number of students would be cancelled, and the fact that the laboratories were dismantled at the moment due to renovations it's unclear when the laboratories can be assembled and run, effectively space will be available for them.

PN999

So you've just said you were directed to run the unit. Did you accept that direction?---Yes. I still recommended that the subject be cancelled.

PN1000

And you ran it given your advice was not accepted?---Given my advice, yes.

PN1001

What would you say was the tone of the meeting? Were you both, for example, were you friendly, were you angry, the two of you in your interactions? Would you say there was a tone to the meeting?---Yes, I would say that there was a - yes, a difficult tone, it had a difficult tone because I felt that there was definitely a friction and I was being told that I had done something that I shouldn't have done.

PN1002

You were told you'd done something you shouldn't have done?---That's what they were saying to me, yes.

PN1003

I understand that. Did you agree that you shouldn't have done it?---No, because I felt that there was - I had taken all the steps necessary in order to inform the department through the Director of Undergraduate Affairs and also given the fact that I had taught the subject for a long time and the fact that I was leader of the mechatronics stream I felt that I would be the best person to judge whether or not this subject or this unit should run given the circumstances at the time.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN1004

I think we can afford to be frank here. Did you have a comfortable working relationship with your head of department?---Well, I have always maintained a professional relationship, but there may have been times where I disagreed with the head of department, and I've always indicated whenever I felt it necessary that I was disagreeing.

PN1005

I suppose this is in the realm of hypothetical. If you had a matter that in your mind could be resolved by going to the Director of Undergraduate Affairs or going to the head of department, to whom would you go?---It depends on what it is.

PN1006

No. If both in your view had the authority to deal with the matter?---I would probably go to the Director of Undergraduate Affairs simply because I see him three or four or five times a day.

PN1007

So it was convenience?---It's convenient.

PN1008

I want to introduce a document to you that's probably - well, I know it best as being part of S2, and it's not the letter to the dean. These are the notes. Please disregard the highlighted areas. I'm not necessarily referring to them in this discussion. I've presented you with a copy, third through to fifth pages of registered item S2, and it's the notes that John Sheridan has provided of the meeting of 8 March. Have you seen that before?---Yes.

PN1009

Do you regard it as a fair and accurate record of the meeting on 8 March?---There are some bits missing from it.

PN1010

Let's start with what it says rather than what it's missing. Is there anything that it says there that you regard as inaccurate?---There is a statement about 13 students being there in the first lecture. There were not 13 students at the lecture. Although that's Professor John Sheridan saying that, that was his understanding, and I couldn't - - -

PN1011

You've already said here today that in total you saw nine?---Nine, that's correct.

PN1012

Is there anything else in there that you regard as inaccurate or incomplete?---Well, in terms of the first part of it I did explain a lot about the fact that I was the mechatronics leader for the department and that when there was mechatronics stream I was the leader for it, and the fact that I have been teaching the subject for 10 years, over 10 years, and so I was in a unique position to be the only person who can assess that.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN1013

And that's missing from this?---That's missing from this.

PN1014

Is there anything else?---There is something about, yes, stated that perhaps there was no policy, but there was a tradition of cancelling courses in this way. That refers to the fact that I followed the steps, I kept saying that I followed the necessary steps, and my steps were talking to the Director of Undergraduate Affairs and informing him of my intentions and the fact that the subject should be cancelled.

PN1015

Turning to the issue of policy then, what did Professor Sheridan tell you about the current policy and where to find it?---Professor Sheridan said that there was no policy.

PN1016

Did he say where to find it?---He said there was no policy.

PN1017

Was there anything that you recognised as counselling occurring in that meeting?
---No.

PN1018

What do you think counselling means?---Well, I think counselling means that to some extent you try to form a view or a joint view that what should be the procedure for something, or following a proper guidelines, I don't know.

PN1019

You've used the term joint view, so do you see it as an interchange?
---Interchange, yes, and having a much more friendly tone to it.

PN1020

At the end of the meeting - sorry, I just want to summarise. Tell me if I've got this right, or correct it if I haven't. You met, you did not know the precise purpose, you then saw another person was present, you brought your own witness.

PN1021

THE SENIOR DEPUTY PRESIDENT: Be careful in not leading the witness too much, Mr Rosenthal.

PN1022

MR ROSENTHAL: I'm merely saying what he's already said.

PN1023

THE SENIOR DEPUTY PRESIDENT: Well, it's still leading.

PN1024

MR ROSENTHAL: It's still leading, okay. You've already described the events in response to questions I've asked. Was there anything incomplete in your understanding at the end of the meeting, in other words was there further business to be undertaken between the two of you?---Not to my mind, because if the head of department was of the opinion that the authority only rested with the head of department, and I was unaware of that, I was aware of it now after that meeting. And he also indicated that he wanted to run the subject. I said fine, I will run the subject even though I'm recommending for it to be cancelled, and I stood by my recommendation. And he asked me to ask the laboratory manager to set up the laboratory.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN1025

Did he ask you what you would do in the future should such a situation arose, student numbers arise again?---I don't recall him asking me that, no.

PN1026

When did you next discuss issues related to this incident with Professor Sheridan?---That was on 26 April, and I was meeting with him regarding a contribution, cash contribution from the department to an ARC leave grant, in fact two ARC leave grants.

PN1027

So who had scheduled that meeting?---I had requested the meeting and the meeting was to take place on the 19th, it was scheduled on the 19th, to meet on the 19th, and I indicated to him that I was away on conference and I would be back on 26 April, so the meeting was scheduled for 26 April to discuss the contribution to the ARC leave grants.

PN1028

So who requested the meeting?---I did.

PN1029

And it's purpose was?---To talk about or discuss the contribution to the ARC leave grants.

PN1030

So it's related to research grant funding?---That's correct.

PN1031

What else occurred?---Well, in that meeting I was given this document that referred to the case of misconduct, and that was the first time I had seen it and the first time I was told that a case of misconduct being raised against me.

PN1032

So on 8 March misconduct was never mentioned?---No.

PN1033

But now on 26 April?---It was mentioned.

PN1034

What form did that take on 26 April, what happened in relation to this cancellation and misconduct?---We discussed the contribution to the ARC leave grants, and John Sheridan, Professor Sheridan indicated that he wants to talk to me about the case of misconduct, and he described to me and said that if you accept that this is a misconduct then I can counsel you, and if you don't accept the misconduct then I'll send it to the dean, it goes to the dean, and basically that.

PN1035

What did you understand it meant to accept that your conduct some seven weeks previously was misconduct, what did you understand it would mean if you were to acknowledge that?---To me it meant that I have done something terribly wrong, but I took all the necessary steps as far as I could tell at that point in time to ensure that I've followed the procedure and I was within the guidelines.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN1036

Were you willing to discuss the matter further if that pre-condition did not
apply?---Yes.

PN1037

Did you indicate this?---Yes.

PN1038

How?---It was through the emails. In fact I sent an email saying that I am happy to meet with you and resolve and clarify the situation.

PN1039

Now, given what occurred in that you cancelled - you announced that the unit would not proceed, could you consider that that was an error?---Well, in the hindsight yes, probably that was an error.

PN1040

Say on 9 March, the day after your meeting on 8 March, could you contemplate it was an error?---Yes. Well, I would say yes, it was an error because obviously the head of department had a different view on the policy, and I had no - the authority rests with the head of department.

PN1041

It's his call isn't it?---That's correct.

PN1042

You could accept it was an error. Could you accept it's misconduct?---No, I could not accept that it was misconduct because I felt that I took the necessary steps and I did that in the best interests of the students, in the best interests of the department, in the best interests of the educational value of the subject, so I felt that I had acted in the best interests of everybody.

PN1043

What would you say to an accusation that you cancelled the unit in order to lower your work load so that you could maintain your research output?---I have a lot on my plate but I deny that accusation. I have a lot on my plate.

PN1044

That's clear?---I have a number of postgraduate students, I have a number of ARC grants, I work 65, 70 hours a week, but I do it, and as far as I'm concerned I'm probably one of the best staff members in the department.

PN1045

How do you measure that?---Based on the fact that I teach generally three subjects, I have half a dozen postgraduate students every year, I've got anything from half a dozen final year project students to maybe even 15 final year project students, I have four or five ARC grants and research, funded research grants every year.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN1046

Do those grants attract a time fraction with them as part of the contract, don't they?---That's correct.

PN1047

What time fraction is that?---Generally - - -

PN1048

What time fraction are you currently holding against research?---Each grant generally holds 20 per cent, and I've got four of them.

PN1049

So somewhere around 80 per cent of the work load?---That's correct.

PN1050

THE SENIOR DEPUTY PRESIDENT: Can you assist me. What's a time fraction? Can you assist me in just explaining what a time fraction is?

PN1051

MR ROSENTHAL: Well, for example if you work a five day week, 20 per cent of a working week is one day. So if you've got a time fraction of 80 per cent research it's effectively four days out of five notionally, because of course academics don't work a 9 to 5, five day week.

PN1052

Was that accurate?---That's correct.

PN1053

The head of department is responsible for your work load engagement
profile?---That's correct.

PN1054

Is that the correct term? I may have misused the term?---That's correct, yes. Work load allocation or engagement profile, yes.

PN1055

When did you last have your work load engagement - how was that done? You're the person to whom it is done rather than doing it to others. When did you last have that done?---That was in 2003.

PN1056

2003?---Yes.

PN1057

And what period did it cover?---It covered 2004.

PN1058

When you were on?---Sabbatical.

PN1059

We're now in September 2005?---That's correct.

PN1060

So is it your testimony you've had no work load engagement process for this current calendar year?---That's correct. Although I submitted it about a month and a half ago.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN1061

And it's already pretty late in the year?---That's correct.

PN1062

You're a busy man, you've just indicated how busy you are. What is the role of elective units within your plans?---These elective units generally provide certain specialisation to the students, and I get most of my postgraduate students and final year project students from these subjects or these units, whoever are doing my final year projects and people who may be finished these final year projects, and these electives, they would be targeted by me to some extent for possibility of future postgraduate work.

PN1063

All this research you do, who signs off on your use of time on this work?---That would be the head of department and the university in general I guess.

PN1064

And certainly the head of department?---The head of department.

PN1065

You have been formally censured by your dean following advice from Professor Sheridan. What has been the impact upon you of this censure?

PN1066

MR BOURKE: I object. It's to even relevant to this case. It's not relevant to this case what the impact is. It's whether he was entitled to the issue of censure.

PN1067

MR ROSENTHAL: I assume I get to deal with the objection?

PN1068

THE SENIOR DEPUTY PRESIDENT: Yes, certainly, yes.

PN1069

MR ROSENTHAL: It is relevant to this case because eventually you are going to be asked to remove the censure, and one of the tests will be whether there's any purpose in doing so, even if all the other arguments are accepted. So I want to start, I want to use this evidence as part of the process of demonstrating that not only does the censure had - not only has the censure had an impact but it has a potential future impact as well, and therefore there is purpose in withdrawing it if the Commission is so moved.

PN1070

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, I'll allow the question.

PN1071

MR ROSENTHAL: You have been formally censured by your dean following advice from Professor Sheridan. What has been the impact upon you of this?
---Well, it's been quite a difficult time because the notion of censure is one that nobody takes lightly, and the impact of it I guess to some extent I have decided not to apply for the promotion this year, and it has impacted on my research to some extent because the day that I was handed the document about the misconduct was the day that I was asking for contribution from the department to my ARC leave grants, which meant that I was actually preparing ARC leave grants, which are quite time consuming and to some extent you need to have peace of mind, and something like this actually poisons your mind when it comes to being able to work in an environment which should be conducive to do the sort of - prepare the sort of documents that I was preparing. So it has been quite an uncomfortable time for me.

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN1072

You also said that you didn't put yourself forward in the promotion, is that what you just said?---That's correct.

PN1073

Can you expand a little on what that is and how it works?---Well, promotion from associate professor to a full professor, a document that has to be provided to the promotion committee goes for about 30 pages. In this document you basically make a case for all the work that you've done, the level of research, the level of achievements, the level of the scholarships, the level of teaching, et cetera. It's a fairly comprehensive document and it requires a recommendation letter from the head of department and I guess it requires to some extent support of the head of department and the dean. So without having the support of the head of department and given the fact that I've been given a case of misconduct, and then followed by a censure from the dean it to some extent means there's no point applying.

PN1074

How often does the opportunity to be promoted to professor arise?---This is a new procedure and it was started this year, and I think it runs for every other year. I think it runs next year but then it stops and it goes every other two years or something.

PN1075

So your understanding is that it will be available again next year?---Next year.

PN1076

And then only every alternate year after that?---That's correct.

PN1077

Why have you appealed the censure?---Well, I - - -

PN1078

Let me preface it by saying this has clearly been detrimental to you?---Yes.

PN1079

Why have you appealed and dragged it out?---Well, I firmly believe that first of all there was a policy, that the electives with low number of students would be cancelled. I firmly believe that the laboratory should have been in place, and if not the subject shouldn't run. So I believe I've actually acted in the best interests of the students, in the best interests of the department and in the best interests of the educational value of the subject. And when I was asked to run the subject I happily said fine, I'll run it.

PN1080

That concludes my questioning now. Thanks very much.

PN1081

THE SENIOR DEPUTY PRESIDENT: Mr Bourke?

**** BIJAN SHIRINZADEH XN MR ROSENTHAL
PN1082

MR BOURKE: Just a matter of time, your Honour.

PN1083

THE SENIOR DEPUTY PRESIDENT: Yes. How long will you take?

PN1084

MR BOURKE: I will be at least an hour with Associate Professor Shirinzadeh.

PN1085

THE SENIOR DEPUTY PRESIDENT: And tomorrow we've got three of your witnesses, haven't we?

PN1086

MR BOURKE: Yes. But I would have thought, your Honour, they would be - I mean, my evidence-in-chief will be substantially as in - we've got comprehensive statements. We won't be spending for example an hour in-chief a we've had here. In my view we'll still finish.

PN1087

THE SENIOR DEPUTY PRESIDENT: I know we've listed tomorrow for 10, but would everybody be prepared to do it at 9.30?

PN1088

MR BOURKE: That's fine.

PN1089

THE SENIOR DEPUTY PRESIDENT: Mr Rosenthal?

PN1090

MR ROSENTHAL: I was going to make such a suggestion.

PN1091

THE SENIOR DEPUTY PRESIDENT: Very good. In view of that I'll adjourn now. You're not excused, but stand down, and as you're still going to give evidence you will need to respect that, and I'd like you not to discuss matters with other people who have given evidence today in the meantime. So the Commission is now adjourned, and will resume at 9.30 tomorrow morning.

<ADJOURNED UNTIL THURSDAY 8 SEPTEMBER 2005 [4.21PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S3 MONASH UNIVERSITY CHRONOLOGY OF EVENTS PN180
EXHIBIT #S4 MONASH UNIVERSITY SUPPLEMENTARY OUTLINE OF SUBMISSIONS PN183
EXHIBIT #S5 EXTRACT FROM MONASH UNIVERSITY STAFF HANDBOOK PN184
EXHIBIT #S6 STATEMENT OF PROFESSOR MELBOURNE PN199
JULIO SURIA, AFFIRMED PN216
EXAMINATION-IN-CHIEF BY MR ROSENTHAL PN216
CROSS-EXAMINATION BY MR BOURKE PN253
RE-EXAMINATION BY MR ROSENTHAL PN442
THE WITNESS WITHDREW PN459
EXHIBIT #S7 DECISION RE SOUTHERN CROSS UNIVERSITY ENTERPRISE AGREEMENT PN463
EXHIBIT #S8 DECISION RE MILLER V UNIVERSITY OF NSW PN463
EXHIBIT #S9 MONASH UNIVERSITY ENTERPRISE AGREEMENT 2000 PN463
DAMON HONNERY, AFFIRMED PN465
EXAMINATION-IN-CHIEF BY MR ROSENTHAL PN465
CROSS-EXAMINATION BY MR BOURKE PN504
RE-EXAMINATION BY MR ROSENTHAL PN577
THE WITNESS WITHDREW PN597
BRUCE WILLIAM FIELD, AFFIRMED PN599
EXAMINATION-IN-CHIEF BY MR ROSENTHAL PN599
CROSS-EXAMINATION BY MR BOURKE PN748
THE WITNESS WITHDREW PN849
WILLIAM HENRY MELBOURNE, SWORN PN851
EXAMINATION-IN-CHIEF BY MR BOURKE PN851
CROSS-EXAMINATION BY MR ROSENTHAL PN860
THE WITNESS WITHDREW PN904
EXHIBIT #S10 RESPONDENT'S CHRONOLOGY, OUTLINE OF SUBMISSIONS AND WITNESS STATEMENTS PN909
EXHIBIT #S11 RESPONDENT'S EXHIBIT FOLDER PN909
BIJAN SHIRINZADEH, AFFIRMED PN909
EXAMINATION-IN-CHIEF BY MR ROSENTHAL PN909