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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1048574-1
VICE PRESIDENT LAWLER
B2013/1065
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Swinburne University of Technology
and
National Tertiary Education Industry Union
(B2013/1065)
Melbourne
10.04AM, TUESDAY, 30 JULY 2013
PN1
THE VICE PRESIDENT: Good morning.
PN2
MR M. McDONALD: Good morning. If the commission pleases, I seek permission to appear with my learned friend MR M. McKENNEY on behalf of the applicant.
PN3
THE VICE PRESIDENT: Thank you, Mr McDonald.
PN4
MS M. RICHARDS: Good morning, Vice President, Melinda Richards. I seek permission to appear for the respondent union.
PN5
THE VICE PRESIDENT: Thank you, Ms Richards. I don't think I have ever had an opportunity to congratulate you on your taking of silk; well done. Yes, Mr McDonald?
PN6
MR McDONALD: Thank you.
PN7
THE VICE PRESIDENT: There are two statements. Did you want to open?
PN8
MR McDONALD: I'm ready to go, your Honour.
PN9
THE VICE PRESIDENT: Fine. Ms Richards, do you have any objection to either of the witness statements?
PN10
MS RICHARDS: I've no objection to either statement. I do seek to cross-examine both of the witnesses.
THE VICE PRESIDENT: Yes. The statement of Christopher John Pilgrim will be exhibit S1.
EXHIBIT #S1 WITNESS STATEMENT OF CHRISTOPHER JOHN PILGRIM
THE VICE PRESIDENT: The statement of Tony Reed will be exhibit S2.
EXHIBIT #S2 WITNESS STATEMENT OF ANTHONY HUME REED
PN13
THE VICE PRESIDENT: Subject to additional evidence that you may elicit in chief, those are the witnesses that you rely upon.
PN14
MR McDONALD: That is so, your Honour.
PN15
THE VICE PRESIDENT: Thank you.
PN16
MR McDONALD: May I make an opening submission and then I'll call my first witness?
PN17
THE VICE PRESIDENT: Yes.
PN18
MR McDONALD: Thank you. If the commission pleases, this is an application pursuant to section 424(1)(c) of the Fair Work Act for an order that industrial action currently being organised by the NTEU and engaged in by members of that union be suspended until 30 August 2013. Swinburne submits that the ban on transmission of results is endangering the welfare of a significant proportion of its student population, namely, firstly, those students who have failed a unit in semester 1 or who are otherwise at risk of not meeting minimum academic performance standards and, secondly, those students who, as a result of poor academic performance in semester 1, will be required to show cause why they should not be excluded from further enrolment in their studies.
PN19
The basis upon which it is contended that the welfare of these students is threatened is that in the ordinarily course of events Swinburne would be able to identify the relevant class of students and would be able to set in train remedial programs directed at improving the academic performance of those students. That's not possible in the current circumstances because the students simply cannot be identified.
PN20
The position in relation to students who have completed units in the first semester which are prerequisites for study in the second semester brings this issue very sharply into focus and highlights the inadequacy of the exemption regime which has been put in place by the union at Swinburne. There are 71 units of study which are affected by the ban on transmission of results which are prerequisites for related units of study in semester 2. There are approximately 1680 students who are enrolled in these units and whose results are currently withheld.
PN21
THE VICE PRESIDENT: That's all set out in Mr Reed's statement.
PN22
MR McDONALD: Yes, it is. Significantly, your Honour, with respect, we don't know what material was before you in the Monash proceedings, but we have endeavoured to put before you - - -
PN23
THE VICE PRESIDENT: A very different body of material.
PN24
MR McDONALD: - - - a very different body of material backed by historical data. Now, that data shows that for the period 2007 to 2012 there's been a fail rate of approximately 17 per cent in respect of these 71 units. So in the ordinary course of events, your Honour, there would be approximately 300 students who would now have been identified as being precluded from enrolling in units in semester 2 because they have failed the prerequisite in semester 1.
PN25
Now, as a result of the bans, it is impossible for the students to self-identify. It's impossible for Swinburne to identify them. Swinburne has been placed in the dilemma that it doesn't want to create prejudice to the 83 per cent of students who have satisfied the prerequisites so in order to avoid prejudice to the overwhelming majority of students what has occurred is Swinburne, caught in something of a catch-22 situation, has provided advice. All the students, all 1680 students, who are in enrolled in these 71 units may all enrol in the semester 2 units. So no restrictions have been placed, but the reality is that if these bans continue and then in two months' time they are lifted, there are 300 students who are going to get some very confronting advice. They are going to be told, "You have failed the prerequisite for the subject you are currently undertaking." They will be permitted to continue doing that study but there are two consequences.
PN26
The evidence of Prof Pilgrim is – and again we submit this is soundly based on principles concerning sequential learning – that there is a significantly increased likelihood that those 300 students who are currently undertaking studies in semester 2 or who will be undertaking studies in semester 2 for which they are not qualified – there is a significantly increased likelihood that they will fail that unit. He says in his evidence that there's an increased probability that a proportion of those students will ultimately discontinue their studies entirely. So that's the category of students who are the 1680 students – that part of the student population who are directly affected by this ban who have completed a unit of study which is a prerequisite.
PN27
The next category of students, your Honour, is those who are categorised as at risk. An at-risk student is one who is identified as being underperforming by reason of a failure of 50 per cent or more of their units in a semester. Generally the position is that a student will undertake four units of study in a semester. So any student who has failed two or more subjects in semester 1 will fall into the at-risk category.
PN28
The evidence of Mr Reed is that Swinburne, having identified students as at risk - and based again on the historical data the average over the last five years is 1770 students at the end of semester will fall into this category. Swinburne has a range of measures available to it, having identified these students, to put in place remedial steps with a view to getting these students back on track. The evidence also of Mr Reed is that when these students engage in these processes, there's a table in his evidence which shows an average of 10 per cent improvement in the academic performance of those students taking them from a fail into a pass.
PN29
THE VICE PRESIDENT: Whereabouts is the statement?
PN30
MR McDONALD: That evidence, if you'll just bear with me - - -
PN31
THE VICE PRESIDENT: Paragraphs 32 and following?
PN32
MR McDONALD: Yes, your Honour, paragraph 33.
PN33
THE VICE PRESIDENT: Yes.
PN34
MR McDONALD: This is, starting at 29, the academic success program workshops. What's telling is that if one looks at paragraph 31, your Honour, generally - - -
PN35
THE VICE PRESIDENT: This is Mr Reed at 31.
PN36
MR McDONALD: Yes, this is Mr Reed.
PN37
THE VICE PRESIDENT: Yes.
PN38
MR McDONALD: So commencing at paragraph 29 he talks about the Academic Success Program workshops. Paragraph 31 - generally at this point in time, at this point of the year, there would have been 500 students who will have registered for the Academic Success Program workshops. As at the date of this statement the ASP has received only four registrations. Your Honour, with respect, this just highlights the obvious issue in these proceedings that students don't walk out of an exam and just assume, "I failed that one. I better go and enrol in the Academic Success Program." This case isn't about the perception of the students. This is about the assessment model and the programs which are available to assist students who are struggling, who are marginal.
PN39
The evidence is Swinburne has got an academic population of 30,000 students so we're concerned here with the bottom 1500 to 2000 students, those who are marginal, who are at risk, whose academic future is on the line. These students need to be identified. They need to be pulled into line. They need assistance. We don't know who they are and when one looks at paragraph 31, with the greatest respect, it's pretty obvious they don't know who they are. The exemption regime, the specific exemptions, the NTEU have in place is of absolutely no assistance whatsoever for these students. We do submit that's a fundamental point of distinction between the basis upon which this application is made and the evidence which is before you compared to the Monash matter.
PN40
The next category of students is the show-cause category. The show-cause category operates in respect of those students who in two successive semesters have been underperforming. So by virtue of the ban on transmission of results in semester 1 from this year Swinburne is unable to identify those students who are in the show-cause category by reason of their substandard performance in semester 2 2012 and semester 1 2013. Again the data shows that at this time of the year, that is, end of first semester, on average there would be some 560 students who are in that critical phase, if I can put it that way.
PN41
THE VICE PRESIDENT: There will be a degree of overlap obviously between this – in fact in a practical sense they will be a subset of the previous class.
PN42
MR McDONALD: Yes, they will. You walk through the at-risk door and then if you continue your poor performance, you go on.
PN43
THE VICE PRESIDENT: So the ASP lifts a group of students out of the problem area.
PN44
MR McDONALD: Yes, precisely.
PN45
THE VICE PRESIDENT: Those that are left - some of them go through the second door as well.
PN46
MR McDONALD: Yes, absolutely precisely, your Honour. The importance of the at-risk measures is like a diversion program. It's the opportunity to grab these students and turn their performance around before they get into the phase of where they have to justify their continued enrolment and where they are at real risk of being expelled from their course. So we do submit, your Honour, that the evidence shows that – and, if I may say so, the language of students at risk resonates strongly in the context of a section 424 application in terms of their welfare. Their future as students is at risk because we, the institution Swinburne, are not able to identify who they are.
PN47
THE VICE PRESIDENT: There has been no general exemption for covering any failed students.
PN48
MR McDONALD: No, there hasn't. Interestingly at Deakin University – and this is shown up in exhibit TR3. At point 3 you will see that attachment 3 to Mr Reed's statement - - -
PN49
THE VICE PRESIDENT: Yes, I see that.
PN50
MR McDONALD: You will see that there was a general exemption in respect of students who had been identified as at risk in another trimester and/or on a warning or restriction from an academic progress committee. That in part addresses the issues which we are ventilating, but it doesn't go so far as to enable the identification of those students who will be at risk as a result of their performance in the first semester. Item number 3 of the Deakin exemption seems to be concerned with those who, as at semester 2 in 2012, had been identified at risk. Part of the basis upon which we put our application today, your Honour, is that it's very important to be able to identify and assist quickly those students who will be designated at risk as a result of their most recent performance.
So in answer to your Honour's question, no, there is no exemption which covers these categories of students which we have identified and we do submit that Mr Cullinan's evidence – we really are like ships passing in the night, your Honour. The evidence which Mr Cullinan has given regarding the operations of the exemptions committee and its deliberations really doesn't advance the matter at all. They just don't address the issue because the issue here is that the relevant population – they cannot be identified until we have the results. Unless your Honour has any questions, those are the matters we wish to put in opening and we propose to call our first witness.
PN52
THE VICE PRESIDENT: Thank you.
PN53
MR McDONALD: Your Honour, we would seek a direction for witnesses out of the body of the hearing room.
PN54
THE VICE PRESIDENT: Ms Richards, what's your attitude to that? Can I say my usual approach to this is to say that it's – when I say "usual", not invariable approach is that it's a matter for the party to make their own judgment call as to whether or not they want to expose their witnesses to the risk of less weight being attached to their evidence because they have been present when other witnesses have been giving evidence, but there is always somebody who needs to remain to be able to give instructions.
PN55
MS RICHARDS: In the case of Mr McDonald's witnesses it would be appropriate for the second of his witnesses to remain outside while the first is cross-examined.
PN56
THE VICE PRESIDENT: Yes. What about your witnesses?
PN57
MS RICHARDS: Mr Cullinan is my only witness. He is the industrial officer with responsibility for Swinburne University and the person from whom I can obtain instructions about what I hear.
PN58
THE VICE PRESIDENT: Yes. Mr McDonald, do you think Mr Cullinan should be out? It's conventional for at least someone from the workplace to remain to give instructions.
PN59
MR McDONALD: Yes. If Ms Richards' position is that she's simply not going to be able to properly conduct the proceeding in the absence of Mr Cullinan, then I'll accept that is the position.
PN60
THE VICE PRESIDENT: I think the position I have articulated remains. It's Ms Richards' judgment call so far as Mr Cullinan is concerned.
PN61
MR McDONALD: Yes.
PN62
THE VICE PRESIDENT: If she wants to preserve the maximum effect of his evidence, she will have him outside, but there is no obligation on her to do so and there won't necessarily be an adverse inference drawn.
PN63
MR McDONALD: Yes.
PN64
THE VICE PRESIDENT: In any event, Mr McDonald, in a practical sense Ms Richards would be entitled to an adjournment to take instructions if Mr Cullinan waited outside and I wonder whether the - - -
PN65
MR McDONALD: Very well, your Honour, I won't press that matter.
PN66
THE VICE PRESIDENT: Okay, fine, thank you.
MR McDONALD: As your Honour pleases. I would call Prof Pilgrim, if I may.
<CHRISTOPHER JOHN PILGRIM, CALLED [10.25AM]
PN68
THE VICE PRESIDENT: Thank you.
PN69
THE ASSOCIATE: Please state your full name and address.
THE VICE PRESIDENT: Work address?---Christopher John Pilgrim of Swinburne University at Hawthorn.
<CHRISTOPHER JOHN PILGRIM, SWORN [10.25AM]
PN71
THE VICE PRESIDENT: Just before you start, Mr McDonald, Ms Gale, are you aware that there is a 418 application that has been filed by Monash University? It has been listed for 1 o'clock today.
PN72
MS GALE: I am.
THE VICE PRESIDENT: Thank you. Yes, Mr McDonald?
<EXAMINATION-IN-CHIEF BY MR McDONALD [10.26AM]
PN74
MR McDONALD: Thanks, professor. Could I ask you to state your full name and work address, please?---Christopher John Pilgrim of Swinburne University of Technology in Hawthorn.
PN75
Thank you. Now, you have prepared a statement for the purposes of these proceedings consisting of 36 paragraphs and attachments. Do you have that with you?---Yes, I do.
PN76
Thank you. Now, are the contents of that statement true and correct?---Yes, they are.
PN77
And that has already been tendered, as I understand it.
PN78
THE VICE PRESIDENT: Yes.
MR McDONALD: Thank you, your Honour.
<CROSS-EXAMINATION BY MS RICHARDS [10.26AM]
PN80
MS RICHARDS: Prof Pilgrim, you describe in your statement some of the theory underpinning the idea of sequential learning. Now, as it plays out practically at Swinburne University, sequential learning is delivered by sequential offering of subjects. Have I understood that correctly?---Sequential learning could be both sequential offering of subjects but also inside subjects themselves.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN81
Within a particular year, so, for example, first year, what often happens is that a basic unit is offered in the first semester and a more advanced unit that builds on the learning from first semester is offered in second semester?---Yes.
PN82
And those units may in fact be taught by the same person?---Possibly.
PN83
Now, is it often the case that the subject that's offered in semester 1 is not taught again until semester 1 of the following year?---Possibly but not always.
PN84
Possibly but not always. Are you able to assist the commission by identifying the proportion of prerequisite subjects that are offered in first semester that are also offered in second semester?---In the early parts of a degree, the first three semesters of a degree program, I would expect that most units would be offered in both semesters primarily because we offer a midyear entry and so we need to accommodate students who are starting in the second half of the year to be able to do their first, second and third. The units in the latter part of the degree might only be offered once per year.
PN85
All right. Mr Reed tells us that there are some 70 subjects for which results have been withheld that are prerequisite for semester 2 units. Do you know what number of that 70 are offered in semester 2?---No, I don't.
PN86
Are you able to break down that 70 into first-year subjects and later-year subjects?
---I'm unable to do that.
PN87
THE VICE PRESIDENT: If you were given time and opportunity to go away and do all the work, you could, but you just can't do it sitting here in the witness box. Is that the position?---Yes, that would be possible to do that.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN88
Don't worry, you're not going to be made to go away?---Good.
PN89
MS RICHARDS: Now, you also convey in your statement a concern that students who don't know their results for semester January may not make good choices about what they study in semester 2. I want to ask you a little bit about how results are processed and communicated through the university normally. Normally the lecturer notifies the lecturer's assessment to administration and before the results are released to the student they are approved by the Board of Examiners?---A courses committee it's called.
PN90
A courses committee?---Mm'hm.
PN91
And that's within each faculty or school?---Schools and faculty, yes, depending.
PN92
Now, presumably there's capacity for change between the lecturer's assessment and the result that's finally released?---Yes.
PN93
In practice, what proportion of assessments by a lecturer are changed downwards from a pass to a fail?---I have sat on quite a few courses committees and chaired a number over my years. There are always some results that are moved down. There are some results that are moved up, typically borderline results. I'm unable to give a proportion but there are some that are moved down.
PN94
Is it a large number, for example, a third, or is it a small number?---It's a small number.
PN95
1 or 2 per cent perhaps?---It would be a handful, yes.
PN96
Is it the case that it is more common for a borderline result to be revised up from borderline fail to borderline pass than the reverse?---Yes.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN97
Now, you would be aware, I assume, that the NTEU has communicated to students that if they are concerned, they can seek their results informally from their lecturer?---I've heard that they've been advised that they can seek advice from their lecturer.
PN98
Yes, and were a lecturer to provide a student with the lecturer's assessment, of course, on the understanding that it's not the official result until it's been approved by the course committee, in 98 or 99 per cent of cases that would be the result that the student ends up getting?---Yes. I mean, I can elaborate on that if you wish.
PN99
Go ahead?---The standard university policy is that lecturers are not permitted to provide their result to students at all. The normal publication of results is from the registrar's office. I believe the advice has been that students can seek an opinion from the lecturer about whether those students – on the student's performance.
PN100
Yes, and the lecturer may inform the student informally that the student has either passed or has failed?---I doubt if the lecturer would be able to say those words because the lecturer would not have any surety that the students would have passed or failed given that the results - - -
PN101
Yes, let me rephrase that. The lecturer could say informally, "I have recommended to the course committee or I will when I release the results recommend to course committee that you pass this subject or that you fail this subject"?---Yes, possibly.
PN102
That advice informally from a lecturer to a student would match the results released by the course committee in 98 to 99 per cent of cases?---Probably.
PN103
Thank you.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN104
THE VICE PRESIDENT: Do you know steps have been taken to draw to the attention of the student body this capacity to make this informal approach that Ms Richards is asking you about?---I've seen a communication on a university web site that has provided advice to students around this matter.
PN105
That's on the NTEU's part of the web site?---No, it's on the university's web site.
PN106
On the university web site, and you don't know whether it's on the NTEU web site?---I don't know.
PN107
MS RICHARDS: These are matters that will be covered in Mr Cullinan's evidence, sir.
PN108
THE VICE PRESIDENT: Thank you.
PN109
MS RICHARDS: At paragraph 31 of your statement you - - -
PN110
THE VICE PRESIDENT: Just before you move on, I take it your position is that because normally you would get some 500 people applying for the ASP and you have only got four so far this year, you would infer that the mechanism that Ms Richards is asking about has not been particularly effective, otherwise you would expect to have a much larger number of people applying the ASP?---I believe that would be a reasonable assumption, yes.
PN111
Yes, Ms Richards?
PN112
MS RICHARDS: Can I just move to that, Prof Pilgrim? In paragraph 35 of your statement - - -?---30?
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN113
35 on the last page?---Thank you.
PN114
You tell us that Swinburne has decided not to run its standard at-risk procedures for the upcoming teaching period. So I'd like to be sure I've understood this correctly. There's only a minority of students who are affected by the ban. Would you agree with that?---There's a proportion of students that have not received their results.
PN115
Yes, and a much larger proportion have received all of their results, have they not?---Yes.
PN116
But it is the case that Swinburne is not running its standard at-risk procedure at all?---Correct.
PN117
For any student?---It's impossible to do so without having all students' results.
PN118
I know that Mr Reed goes into the numbers. It's not an area you cover in your statement, but there are a proportion of students who have received all of their results?---Yes, there would be.
PN119
Yes, and Swinburne is not running the at-risk program for those students?---It's very difficult to do this with partial results.
PN120
But you have all of the results for a number of students, do you not?---I am unaware of the proportion of students that would have all of their results. I don't know that.
PN121
PN122
But just to be absolutely clear, it is the case that Swinburne is not running its at-risk program for any student at Swinburne for semester 2 this year?---Correct, we cannot do that without full results.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN123
THE VICE PRESIDENT: Ms Richards, can I just interpose here? Perhaps I shouldn't but I'm going to anyway. It strikes me that there's a paradox that exists in this area that if you're a "good" employer/service provider, business operator, and you seek to do your utmost to ameliorate the adverse effects of industrial action against affected clients, customers, et cetera, you can put yourself in a position where through your own actions you prevent the success of an application under 424 and paradoxically if you're a bastard employer or a very tough employer – I'm about to go to the Qantas example. I'm not trying to suggest that Qantas are bastards or tough, but the Qantas case represents sort of a microcosm of this phenomenon. It wasn't the bans that had been imposed by the engineers that were interfering with timetables and causing customer delays and stress and threat to welfare that had been contended in that case. It was Qantas's grounding of its aircraft that gave rise to the relevant threat.
PN124
MS RICHARDS: Which was a consequence of the bans.
PN125
THE VICE PRESIDENT: Yes.
PN126
MS RICHARDS: Yes.
PN127
THE VICE PRESIDENT: But Qantas didn't need to ground all of its aircraft. It didn't need offload people on the Kangaroo flight from London to Australia in Bangkok and leave them there stranded which is what it did. It was the effect of Qantas's response action that activated the satisfaction of the statutory test that led to the termination of that protected industrial action, the consequence workplace determination, but in the context of this evidence, am I right in saying that whether Swinburne can be criticised or not for not running its at-risk program, if it's not running it's at-risk program, it's not running it's at-risk program and it has the effects that it has. I will leave that with you.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN128
MS RICHARDS: Could I just say this, your Honour? I would prefer not to make my submissions in the course of cross-examination.
PN129
THE VICE PRESIDENT: Fine.
PN130
MS RICHARDS: Perhaps at this point I can just establish what the situation is.
PN131
THE VICE PRESIDENT: Certainly.
PN132
MS RICHARDS: The evidence is a little surprising, but I'll just establish what the situation is with the at-risk program and with the show-cause procedures.
PN133
THE VICE PRESIDENT: Certainly. Anyway, I flag that as an issue which I think is a material issue in this context. In other words, the mere fact that you have got that concession doesn't necessarily help you that SU is not running its at-risk - - -
PN134
MS RICHARDS: I don't think I'm going out on a limb by saying it is, however, a relevant consideration.
PN135
THE VICE PRESIDENT: Yes.
PN136
MS RICHARDS: All right. So, excuse me, I'll resume asking some questions on that topic.
PN137
The university is not running its at-risk program at all for any student regardless of whether the student has received all of their
results or none of their results?
---Correct.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN138
Equally, you tell us in the following paragraph that the university is not for semester 2 running its ordinary show-cause procedures. You need to vocalise your answer, professor?---Correct.
PN139
And again that is regardless of whether students have received all of their results or none of their results?---Yes.
PN140
Now, returning to paragraph 31 of your statement, would you look at paragraph (f) of paragraph 31 on page 9? You tell us there that if a student withdraws from a unit of study on receipt of results, for example, on discovering that they have failed a prerequisite and they would prefer to not continue with a subject for which they don't have the prerequisite, there would be an academic penalty because the withdrawal would be recorded on the student's record if the student withdraws after 6 September?---Yes.
PN141
That is a deadline that is fixed by the university, is it not?---I believe that's a census date that is - we have to publish according to a government regulation but the registrar is probably best to confirm that.
PN142
All right, but in terms of the university's own academic transcript, are you aware of any reason why the university couldn't extend that date in the particular circumstances that apply at present?---Again without knowing the detail of any government regulation around that, it's possible that that date could be extended.
PN143
But that's a question I'd be better asking the registrar, I gather?---I believe so.
PN144
Thank you. Now, you refer in your statement to two categories of students, students who have been identified as at risk and students who are a subset of that group who the following semester don't make satisfactory academic progress and are then required to show cause why they should be able to continue as students. Students at risk are in that category either because they have failed 50 per cent of their subjects for a particular semester or because they failed a unit of study for a second time. Students who are at risk of failing a unit of study for a second time are fairly readily identifiable, are they not, because you know they've already failed the subject once and they're repeating it. They repeated it in the second semester?---They're only identified once we have the student's result.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN145
But you know already, do you not, if you interrogate your enrolments records, which students are doing a subject for a second time because they failed it the first time?---Yes.
PN146
Are you able to say how many students are in that category who have had their results withheld?---I can't answer that. I mean, I don't know.
PN147
Again I can perhaps ask Mr Reed that one?---Yes.
PN148
Are you aware of whether the university has made particular attempts to ensure that students in that category who are attempting a subject for a second time are aware of the support services that are available for at-risk students?---I don't believe there's anything that has been done that is special about that particular category of student.
PN149
Now, students in the first category who fail 50 per cent or more of their credit points for a particular semester – their credit points may be determined – sorry, I'll just go back a step. Credit points for a semester - in a number of subjects they will be determined partly by assessment that takes place throughout the semester and partly by final exam?---Not the credit points, the final result of a unit of study is determined by all assessments within that study, within that unit.
PN150
Yes, and is it the case with any of the subjects that are affected by the ban that they rely 100 per cent on an end-of-semester exam?---It's possible. It's also possible that some – many units have a requirement that students must pass the exam as well as pass - you know, achieve a 50 per cent or more overall result.
PN151
In other units the exam may not count as much or it may not be even necessary for a student who has completed continuous assessment to pass the exam in order to pass the subject?---There's a very small proportion of units which don't have an examination.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN152
Yes?---Most units will have an exam and in those cases the exam is usually weighted at 50 per cent to 70 per cent of the overall result.
PN153
Semester 1 commenced in early March, 4 March?---Yes.
PN154
The bans have been in place since, I think, 21 or 23 May and you would expect students to have completed a great deal of continuous assessment and to have received their results before the bans commenced?---There would be some assessment that would've been provided – some results would've been provided back to the students during the semester but generally most assessment items are due towards the end of the semester whether that's an assignment-type assessment and, of course, the examination. So in most cases, in my opinion, students wouldn't have received most of their assessment results for their unit.
PN155
Now, there's one other matter I'd like to ask you, Prof Pilgrim. At paragraph 36 of your statement, the last paragraph, you tell us that exclusion in the case of students who satisfy the show-cause criteria is generally considered to be in the best interests of those students as it forces a break in studies to allow students to consider whether they're suited for the course or have the ability to complete it. That's a statement made from the university's point of view, is it not?---I believe that's my opinion after having chaired many of these exclusion committees.
PN156
It is the case, is it not, that a number of students take a different view about where their best interests lie when faced with a show-cause process?---Yes.
PN157
And they actively endeavour to show cause as to why they should not be excluded from the university?---Yes.
PN158
And it follows that those students have judged that their best interests are served by remaining enrolled as a student of the university and having another opportunity to complete their studies?---Yes, the students do, you know, contest our exclusion hearings.
**** CHRISTOPHER JOHN PILGRIM XXN MS RICHARDS
PN159
Just bear with me a moment.
PN160
THE VICE PRESIDENT: The view of the student is not determinative?---Sorry?
PN161
The view of the student is not determinative. It's something that's taken into account?---It's informative to the decision of the panel.
MS RICHARDS: Thank you. I have no further questions.
<RE-EXAMINATION BY MR McDONALD [10.51AM]
PN163
MR McDONALD: Professor, you gave some evidence to the effect that you believe it's not possible to implement the at-risk program in circumstances where not all students have received their results. Can you explain why you hold that opinion?---The at-risk program – it's quite a complex administrative and academic process. It requires a judgment of, you know, the academic progress of, you know, students across a course. We examine the students' results by course. If there are partial results there, it would make it very difficult to make judgments about whether or not a student, you know – well, it makes it impossible whether a student has met the satisfactory academic standards. It's possible that there may be some students that would've received all of their results and you could make a judgment of that, but I believe it was the university's position that it doesn't make sense to run two of these processes separate. I believe that the university is hoping - - -
PN164
THE VICE PRESIDENT: In theory it's possible to do so, but you make a value judgment based upon resource assessment and other factors. You just don't want to do it? It doesn't make good sense to do it?---Yes, I believe that they're hoping that the results will be available so that we can actually do it in its entirety so that we can run the normal at-risk processes from there, but it would require, as you said, a lot more resources to implement if we had to run this process now and again once the results are available.
**** CHRISTOPHER JOHN PILGRIM RXN MR MCDONALD
PN165
MR McDONALD: Thank you. Thanks, professor. I've got nothing further for the witness.
THE VICE PRESIDENT: Thank you, professor.
<THE WITNESS WITHDREW [10.53AM]
MR McDONALD: If I may, could I call Mr Reed? He is outside. Could someone just get him, thank you?
<ANTHONY HUME REED, CALLED [10.53AM]
THE ASSOCIATE: Please state your name and work address?---Tony Reed, Swinburne University.
<ANTHONY HUME REED, SWORN [10.54AM]
<EXAMINATION-IN-CHIEF BY MR McDONALD [10.54AM]
PN169
MR McDONALD: Thanks, Mr Reed. Could you, please, state your full name and work address?---My full name is Anthony Hume Reed. Tony Reed is what I go by and my work address is 20 Wakefield Street at Hawthorn which is Swinburne University's address.
PN170
Thank you. Now, you have prepared a statement for the purposes of these proceedings together with three attachments?---Yes.
PN171
Do you have that with you?---I do.
PN172
Now, are there any corrections you need to make to that statement?---There are, your Honour. There are three minor statistical corrections which I'd like to just go through.
PN173
All right. Just identify the relevant paragraph number and then indicate what the correction is, please?---Certainly. So in paragraph 10 I make reference to 70 units which are prerequisites for semester 2. We recounted the figures and it's actually 71.
PN174
So in the first line of paragraph 10 the figure 70 should in fact be 71?---That's correct.
PN175
Thank you; next paragraph?---Paragraph 28.
PN176
28?---If you look at the paragraph – sorry, if you look at the table in table 27, it doesn't actually show the figures for the former faculty of higher education Lilydale.
**** ANTHONY HUME REED XN MR MCDONALD
PN177
Higher education in Lilydale?---Lilydale.
PN178
Yes?---And those figures are part of the accumulated figures that are shown in paragraph 28. So the figures that are shown there in 28, the aggregated figures, are correct but the table in 27 does not show the figures for that faculty of higher education in Lilydale.
PN179
THE VICE PRESIDENT: Sorry, what's the name of that faculty again?---It was called the faculty of higher education Lilydale.
PN180
MR McDONALD: So Swinburne had a Lilydale campus?---It did, yes, up until 30 June this year.
PN181
Thank you. Yes, next paragraph?---Then there's one final correction which is paragraph 42 – 42, sorry, the table in 41. Again it's exactly the same issues there that the higher education Lilydale faculty was not shown in those tables there and so the aggregated figures there that are shown in paragraph 42 were missing those total – are correct but missing the figures in the table.
PN182
Yes?---There was, however, another slight statistical error. You'll see in the fifth line of paragraph 42 it says there were 608 students identified as being required to show cause. The actual figure is 609.
PN183
609, thank you. Now, save for those corrections, are the contents of your statement true and correct?---Yes, they are.
PN184
Thank you. That has been tendered, as I understand it.
PN185
THE VICE PRESIDENT: Thank you.
**** ANTHONY HUME REED XN MR MCDONALD
PN186
MR McDONALD: Thank you.
<CROSS-EXAMINATION BY MS RICHARDS [10.57AM]
PN187
MS RICHARDS: Good morning, Mr Reed. Can I start by asking you about events before the imposition of the results ban? Semester 1 commenced 4 March this year?---Correct, yes.
PN188
There was, as I understand it, an amount of assessment that took place and was completed by students before the bans were imposed on 21 May?---That's right, your Honour. There's progressive assessments that are done by students. Not everything is done through the examination period so there might be assignments, for example, done progressively throughout the semester.
PN189
Are the results of the progressive assessment recorded centrally?---They're recorded through the academic teaching areas.
PN190
So the university has access to results of assessment that were completed before the bans were imposed in semester 1?---The academics will load them onto the learning management system which is known as Blackboard as a general rule and will be stored there.
PN191
THE VICE PRESIDENT: Was that a yes or a no?---Yes.
PN192
MS RICHARDS: Yes, thank you. So although final results for the semester have not been transmitted in a number of subjects, partial results are available for a proportion of those?---That's true. However, there is elements of moderation which needs to be factored in here so the progressive results or the final results can be moderated as a result of the relative performance of an individual against the units overall. So the results there can change and do on occasions change.
**** ANTHONY HUME REED XXN MS RICHARDS
PN193
Yes, although from the results that you have it would be possible to undertake students who were at risk of failing a subject?---There's always that possibility. However, the bulk of the assessment occurs at the examination period so it's – there might be some indicators there along the way that a person may not be meeting the requirements of – the overall performance against a unit on the basis that they performed poorly for a particular assignment or two, but that doesn't necessarily demonstrate the final outcome for the student because they may perform very well in the examination.
PN194
No, but the university is not without completely without information about how students are tracking throughout semester 1 before
the imposition of the ban?
---Yes, I accept that.
PN195
In the 171 units that are affected by the ban, has the university undertaken any analysis of the result information that is available to identify students who may have been at risk of failing those units?---Your Honour, to the best of my knowledge, none of that work has taken place.
PN196
Now, you've given us a figure of 171 units out of – sorry, 171 units of study that are affected by the ban. Are you able to give us a figure of the total number of units offered throughout the university in semester 1?---Not offhand, but I'd say approximately about 600, thereabouts.
PN197
THE VICE PRESIDENT: Sorry, what is that figure?---That's the aggregated number of units that were on offer for semester 1 and that's purely an approximation, but my understanding is the total number of students affected are roughly about 25 per cent.
PN198
Affected by?---By not having a result.
**** ANTHONY HUME REED XXN MS RICHARDS
PN199
MS RICHARDS: I'll come to that mathematics in a moment but - - -
PN200
THE VICE PRESIDENT: I'm hoping someone will clear that up. I am confused at the moment. I thought the number of affected students was something far smaller than 25 per cent?---It's about 7000.
PN201
30,000 students.
PN202
MS RICHARDS: You give a figure in paragraph 9. We'll deal with it now, sir, 6703 students who have been identified as having been
affected by the ban?
---Yes.
PN203
Now, that is of a total of approximately 30,000 enrolled students?---That's correct, yes; an estimate, yes.
PN204
And on my mathematics that makes it about 22 per cent of students who are affected?---Yes.
PN205
So you would say a quarter. I would say 20 per cent?---Okay.
PN206
That means that the remaining 78 per cent of 30,000 students at Swinburne are not affected by the bans at all?---Yes.
PN207
THE VICE PRESIDENT: I see; and the number of students who are affected by the ban and who are undertaking subjects that are prerequisites for semester 2 subjects is a smaller figure again. I think Mr McDonald in his opening - - -
PN208
MR McDONALD: 1680, your Honour.
PN209
THE VICE PRESIDENT: 1680 is the figure.
**** ANTHONY HUME REED XXN MS RICHARDS
PN210
MR McDONALD: Yes.
PN211
THE VICE PRESIDENT: So 30,000 students: 6000 and?
PN212
MS RICHARDS: 703.
PN213
THE VICE PRESIDENT: 703 affected by the ban, that is, they have not received one or more results?---Correct.
PN214
And then a subgroup of that, 1680, who haven't received one or more results in respect of courses that are prerequisites?---That is correct.
PN215
MS RICHARDS: For those 6703 students there are 10,096 results you've identified as having been withheld?---Yes.
PN216
So again on my mathematics that makes it on an average about one and a half results per student?---A little bit higher I would say, but, yes.
PN217
A little higher. We can just get out the calculator for ourselves once we have the real figures, but certainly less than two per student?---Yes, I accept that.
PN218
And I understand that a student undertaking a full-time load would normally be studying four subjects in a semester?---That's right. However, the average number of units a student undertakes per semester is three units on average so that would mean about 50 per cent of the units of these students would be having a missing result.
PN219
So in many cases a student will only have one result withheld?---That is true.
**** ANTHONY HUME REED XXN MS RICHARDS
PN220
And others may have two results withheld?---Two or more, yes.
PN221
In paragraph 10 you tell us - you've amended this number – that 71 of the units of the total of 171 units affected by the ban are prerequisites for semester 2 units. Now, are you able to break that figure of 71 down into tied prerequisites or general prerequisites?---No, I cannot. I'm just advised that they're all prerequisite units.
PN222
Specifically for a subject in semester 2?---Yes.
PN223
Now, you appreciate the difference between tied and general prerequisites?---Not exactly, no.
PN224
A tied prerequisite is you must complete this subject in order to proceed to the next one. A general prerequisite, as explained by Prof Pilgrim in his statement, is one where it's necessary to have completed a number of units of study in a course before completing a given unit of study. So there's not a particular subject that must be completed. It's a particular accumulation of knowledge, I suppose, in the subject area that must be demonstrated?---Okay. I understand that distinction.
PN225
But you're not able to break down that figure of 71 into tied prerequisites or general prerequisites?---No, I'm not.
PN226
Equally, are you able to identify the 71 subjects that were offered in semester 1 this year that are prerequisites for semester 2 subjects that will also be offered in semester 2?---The list of the 71 units, your Honour, that I've said there have – I've got a copy of that at my office. Are they all offered in semester 2? I'm trying to recall. I believe that I can get that information to you as well, yes.
PN227
THE VICE PRESIDENT: You just don't know as you sit here in the witness box?---Yes, I don't know.
**** ANTHONY HUME REED XXN MS RICHARDS
PN228
That's fine. You're not expected to be a walking almanac of all information that might be deduced from the circumstances.
PN229
MS RICHARDS: You're doing pretty well. Now, you've identified a figure in paragraph 10 of 1638 students who have a withheld result from a semester 1 unit which is a prerequisite for a semester 2 unit. At this stage of the year, would students be enrolled in subjects for semester 2?---Absolutely. The process, your Honour, is that students enrol on a year basis from the beginning of the year or even from October-November of the year before. That process is normally done so that the students have the opportunity at the middle of the year to vary their enrolment for semester 2 if they need to, but they're definitely enrolled for the full year.
PN230
So of that number of 1638 students who have a withheld result from a semester 1 unit, what proportion of those students are in fact enrolled at present in the subject for which the – in the prerequisite – sorry, I'll withdraw that.
PN231
THE VICE PRESIDENT: In the associated subject.
PN232
MS RICHARDS: Are in fact enrolled in the sequential subject?---Sure. My understanding is that all of these students are. Now, that can change because they're in a position to vary their enrolment at this point in time and they may be speaking with unit conveners for semester 1 and – but that's my understanding.
PN233
All right. So you've examined that 1638 number and satisfied yourself that those students are enrolled in the next subject that builds on the prerequisite?---That's right. That's my understanding, yes.
PN234
THE VICE PRESIDENT: So your understanding is that that 1600 figure relates purely to tied prerequisites and not to general prerequisites?---No, it's prerequisites generally.
**** ANTHONY HUME REED XXN MS RICHARDS
PN235
MS RICHARDS: Now, of the 171 prerequisite units 52, you tell us in paragraph 11, are stage 3 or final-year units. A student who has failed a unit will either need to repeat that unit or to study another unit that carries the equivalent credits. So the student's going to have to do another subject, either the one they've failed or another one that carries the necessary credits to graduate?---That's correct. If they do alter the prerequisite, that would mean they would alter their course of study so that would mean they'd have to change their major or some other pattern so it would – that would be an uncommon occurrence potentially.
PN236
So you would expect a more common course would be for the student to repeat the subject?---Generally if they want to continue with that course of study, yes, that would be the common occurrence.
PN237
At present you're not able to assist us with whether those 52 third-year subjects are offered in semester 2?---I haven't got those details with me, no.
PN238
You identify in paragraph 11 a possibility for a student to overload, assuming the subject's offered in semester 2, to repeat the
prerequisite subject in semester 2?
---Yes.
PN239
Is overloading a course that you would recommend to a student who's struggling academically?---It's certainly not something I would do – recommend myself. It would require an academic interpretation. It'd be something where the student would normally engage with academics or course advisers, administrative staff, to check whether they think it's a feasible outcome or not. It really requires an individual's assessment with the student to make that determination, but it certainly does occur.
PN240
In paragraph 13 of your statement you give us an example of a student who was seeking his results from semester 1 because he had a job interview for graduate placement. Did you advise that student to seek an exemption from the ban?---I did. I actually spoke to the student personally. The student said that they were not granted an exemption. I believe I've still got the email if it's required. I haven't got it on me here. The student was quite distressed. When I spoke with the student, he said, "My interview's tomorrow. I don't have anything." I replied with an email providing him the option saying, "I'm happy to provide a letter of support for you to demonstrate the industrial action that's occurring," and he said, "We'll just see how it progresses."
**** ANTHONY HUME REED XXN MS RICHARDS
PN241
This was a final-year student?---He indicated to me that he was finishing at the end of semester 2 this year if he passes all of his units.
PN242
All right; and presumably he has his results from previous years?---He has, yes, but he indicated to me in the conversation that the potential employer wanted the full academic history of his studies and that's why he was going through this level of distress.
PN243
Did you advise the student to approach his lecturer informally?---I did that as well and he had spoken to the academic about that. The academic had not released the results but was prepared to provide a statement to say the industrial action that was occurring.
PN244
So the student had a full record of his results - - -?---No.
PN245
- - - that were available - - -?---Yes.
PN246
- - - for the university to provide?---Full statement of results that had been released, yes.
PN247
You outline at paragraphs 22 and 23 of the students - the criteria for identifying students at risk. One of those criteria is a student fails a unit of study for the second time. Now, it would be possible for the university to identify fairly readily students who are studying a unit of study for the second time, having failed it the first time?---That's correct, yes.
PN248
That's a readily identifiable group of students?---Yes.
PN249
Are you aware whether the university has had any particular communication with that class of students, students who are attempting a subject for a second time or possibly even a third time to alert them to the support services that are available for them?---My understanding is all students that have had a withheld result have been advised of the various support arrangements that are in place and there will be further communications to go through. So to your question, yes, I believe there's been a level of advice.
**** ANTHONY HUME REED XXN MS RICHARDS
PN250
All right; and that's been to all students with a withheld result?---That's my understanding, and there is a results ban web page that the university have set where there is a link there for students to go to to see a range of services that are available to them.
PN251
But there's been no particular tailored communication for students who are potentially within the at-risk group?---No, I don't think that's right. I think it flags in the advice that's on the web site that students that are concerned with their academic performance based on previous experience – that they should be very mindful of this and I certainly know the intention was to send out further advice to students later on to continue this discussion from the university on the point.
PN252
But there's just been the one communication in the same form sent to all students who've had a withheld result. There's no particular attempt been made to connect with those students who are potentially in the at-risk group or who are identifiable readily as being in that group?---I know there's been a lot of communications that have gone to students without results. I can't say with absolute certainty that there hasn't been specific or there has been specific communications to them. My belief is there has been specific communications to them. I just need to clarify that and certainly the intention was to continue the communications to students to ensure that groups such as this were actually informed by the university of their options available to them.
PN253
Now, I think we agreed earlier that there are some 78 per cent of students who are not affected by the ban at all. Of that group, how many have been identified as being at risk following the completion and the release of their results at the end of semester 1?---Of the 78 per cent we haven't done any calculations at this stage to determine the at-risk stage because we wanted to ensure we waited till the results had been released so that we could go through the process for all of the students on an equitable basis.
**** ANTHONY HUME REED XXN MS RICHARDS
PN254
All right. So you haven't gone through that process for the students who are not affected by the ban at all?---Not yet, no. The cumulation of those details going through that is relatively straightforward in a statistical sense.
PN255
Yes, and so those students who are readily identifiable as at risk because all of their results have been released have not received any communication from the university about the support services that are available to them?---No, all Swinburne University students have received advice on this point advising them of the services that are available for them. Effectively the message was, "If there's any concerns and you're worried that you may have failed and so forth, please use the services that are available to you." There hasn't been a specific targeted one that's gone to all of the students that have failed or have proceeded in an unsatisfactory progress at this point in time on the basis that the university was going to wait until all results had been released for students who had failed subjects.
PN256
There's no industrial action in place that prevents you from notifying students who have all their results or have enough of their results to satisfy the criteria of being an at-risk students?---No, there's not. The issue of equity, as I raised earlier, was a reason why we're holding off those particular processes. As I've also indicated, the students have that information in there provided to them so they can exercise their own judgment in that respect there. We felt since there's such a significant cohort of students that have not had results released, it would be inappropriate for the university to address one sector of the – segment of the student population and not the full population.
PN257
Equally, with students who satisfy the show-cause criteria who have all of their results or who have enough of their results to make it clear that they've failed a subject for the third time or have failed 50 per cent of their course load the university has not initiated the show-cause procedure for those students?---That's correct, your Honour, on the basis that we're waiting for the full release of results so that we can do it in an equitable manner, yes.
**** ANTHONY HUME REED XXN MS RICHARDS
PN258
So let me get this straight. You're withholding a letter that's available to at-risk students from an equity concern?---That is a core reason for it. There's a simple logistical reason as well in terms of the processes that are required to do that, for doing it for that percentage of students and then doing a second process later on. There's a logistical probability that if it happens too late that we won't be able to do – maintain the same processes as well. So again trying to ensure consistency and fairness of the approach is what we were after.
PN259
Now, assistance that's offered to the students in the at-risk group is, first, they're asked to attend a meeting and you often conduct those meetings. Have I understood that correctly?---I've attended sessions, yes.
PN260
Then they are informed of a range of support services available and one of those is the academic skills program?---Yes, that's correct.
PN261
And that's a program that can be completed online by students?---It can be done in person and online, yes.
PN262
So presumably those students who are let complete it online can do it as and when it suits them to complete it?---I believe so, yes. I don't know the full details.
PN263
Those resources are available for them to utilise at any stage throughout the semester?---I believe so, again not knowing the full details. It is run by the counselling and development area which is outside of my responsibility.
PN264
But these meetings that you conduct – how long do they take?---They vary in length. They vary in size as well. The ones that I've attended normally go for about an hour and a half. They're done on each of the campuses and sometimes they're done specifically within the faculties through the faculties' managers of students and programs who would run that with the students.
**** ANTHONY HUME REED XXN MS RICHARDS
PN265
So if the at-risk program were to be run in two stages now to the students who are readily identifiable and later to students whose results are released later, that would involve four additional meetings being held?---I couldn't actually say, your Honour, on the top how many meetings there would be, but again they vary them so it could be that some faculties in particular like to do it with a small cohort. Some would like to do it with a large group. So I couldn't say with a level of confidence whether it was four or significantly more meetings that would need to take place.
PN266
All right. So some more meetings would have to be held with a smaller group of students the second time round?---It really depends on the determination by the academic areas how they believe they best run a lot of these at-risk sessions and again there's a second stage as well with the academic probation or the show-cause stage as well.
PN267
Yes, so the show-cause procedure concentrates on the individual student. It's not a collective process, is it?---The submission that the students submit is obviously individual and then the hearings that normally take place are again individual. However, post that there are these sessions which are group sessions and I certainly lead a lot of those sessions which take place and they can be significant in size and again they're done on all campuses.
PN268
All right, but there's no industrial action in place that prevents you from initiating the show-cause process for those students who are able to be identified at present as satisfying the criteria?---That's correct, your Honour.
PN269
You gave us a figure in paragraph 31 of your statement to the effect that at present only four students are enrolled in – registered
for the academic skills program?
---At the time that I submitted my statement that was my understanding. It was provided to me.
**** ANTHONY HUME REED XXN MS RICHARDS
PN270
Do you have an updated figure?---No, I don't.
PN271
Semester hasn't resumed at this stage, has it? That's still a couple of weeks away?---Monday week semester starts.
PN272
At what stage would you expect that figure of 500 students registered for the program to eventuate in the normal course?---I do not know. The process, as I indicated earlier, of the ASP is outside of my control. It's done by the development and counselling departments so I could not give an answer.
PN273
So there are a number of possible explanations for the low number of registrations. One is that semester hasn't started yet?---That's true, yes.
PN274
Yes, and another is that the university is not running its at-risk program for any students at present?---That could contribute to it, yes.
PN275
The university hasn't actively encouraged any students to enrol in the academic skills program?---That I'm not so sure about. Again there's a whole series of advice that's been provided to students with withheld results indicating services that are available and, whilst I don't know off the top exactly all of the content there, I'd be reasonably confident that reference to the ASP would be there for students if they were concerned about their performance.
PN276
All right, but certainly no targeted provision of advice to students identified as at risk that they should participate in the academic skills program?---Again I cannot say with absolute certainty that's not the case.
PN277
But none that you're aware of?---None that I'm aware of.
**** ANTHONY HUME REED XXN MS RICHARDS
PN278
And, indeed, that's one of the reasons we're here?---Yes.
PN279
Now, you do tell us that for the progress review period 1 over the last five years an average of 1770 students are identified as at risk, although it was a significantly larger number in 2012, 2102 - and I'm looking at paragraph 28 of your statement – but of that population you have only about 500 students complete the academic skills program in any one semester?---That's correct, it's a voluntary - - -
PN280
THE VICE PRESIDENT: Which paragraph are you reading from there?
PN281
MS RICHARDS: I'm looking at both 28 and 31.
PN282
THE VICE PRESIDENT: Thank you?---The ASP is a voluntary program for students. It's not a mandated requirement for them when they're at the at-risk stage. You should see roughly about a quarter of these students who are identified at risk would actually undergo this process.
PN283
MS RICHARDS: Yes, thank you.
PN284
THE VICE PRESIDENT: Even if the bans remain in place, that number of four is likely to increase, is it not, for students - - -?---I would expect, your Honour, it would increase, yes.
PN285
But you would still expect it to be way below the average of previous years?
---Exercising judgment I believe that the majority of students would try to do this prior to the commencement of semester which is
Monday week and these sessions which take place on campus occur during the semester break so you would believe it would be a significantly
higher figure, yes.
**** ANTHONY HUME REED XXN MS RICHARDS
PN286
MS RICHARDS: You have 78 per cent of students who know all of their results, know whether they have passed or failed 50 per cent of their course load, know whether they've failed a subject that they've attempted for a second time, but the university has not taken the step of recommending to those students that they undertake the academic skills program at this stage?---As I've indicated, to all of the students we've sent communications with respect to what services are available to them. Again I can't say off the top of my head whether it makes specific reference to the ASP, but I'd feel confident that it would do that and so students who have poor academic performance would have received this communication which would state, amongst other things, hopefully reference to the ASP.
PN287
You tell us at paragraph 52 about some contingency planning for the show-cause process. I just want to ensure that I've understood what you say there correctly. At 52.1 paragraph (b) what I understand you to be saying is that if results are released after 1 August, so after Thursday this week, students who are required to show cause need only make a submission to avoid being excluded from the university?---Yes, your Honour, that's correct; yes.
PN288
So in the normal course a student would make a submission and then attend a panel hearing, but if results are withheld beyond Thursday this week, the university has made a decision that the show-cause process will be truncated so that a student need only make a submission to avoid being excluded?---That's primarily correct. There is the possibility under the normal arrangements that a student may do a submission for show cause and still the student is excluded without a hearing occurring. There is that potential, so it's very similar to what you're saying but just slightly different.
PN289
And, of course, there may be students who accept that - - -
**** ANTHONY HUME REED XXN MS RICHARDS
PN290
THE VICE PRESIDENT: University was not for them.
PN291
MS RICHARDS: - - - university is not for them and they should attempt something else?---That is correct, your Honour.
PN292
Yes, and there will always be a proportion of students who are asked to show cause who accept that early on?---I would imagine so, yes.
PN293
But the end of that result of that contingency, if that's what eventuates, will be that a smaller number of students are excluded for unsatisfactory academic progress than would ordinarily be the case?---Yes, your Honour.
PN294
Now, there's one particular fact scenario that I'd like to put to you. You may or may not be aware of it but I'd like you to have an opportunity to comment on it. There is a subject offered in the faculty of life and social sciences. It's a first-year statistic subject which is a prerequisite for many other units of subject throughout that faculty. I'm instructed that the lecturer in that subject proposed providing the university with a list of students who had passed and those who had failed for the purposes of those students being able to make decisions about their course of study in second semester. Are you aware of that situation?---No, I'm not aware of that, but I am aware of the university policy about releasing official results and that official results are required under policy to be released via the registrar position.
If you're not aware of that situation, there's no need for me to ask you any further. Just bear with me a moment. No further questions, your Honour, thank you.
**** ANTHONY HUME REED XXN MS RICHARDS
<RE-EXAMINATION BY MR McDONALD [11.31AM]
PN296
MR McDONALD: I just wanted to show the witness a document, if I might, your Honour.
PN297
THE VICE PRESIDENT: Yes.
PN298
MR McDONALD: You were asked some questions and you gave some evidence about advice which had been given generally to the student
population and you expressed your belief that that advice included a recommendation that students take advantage of the academic
support programs that are in place. If you have a look at the second page of the document that I've given you about three-quarters
of the way down the page, is that the communication that you were referring to?
---Yes.
PN299
Can you just confirm what the document says?---It reads as follows, "It is strongly recommended that you attend a free Academic Success Program workshop and the details are available and the link is provided."
PN300
What's the date of that document?---It's 8 July, your Honour.
PN301
Are you aware as to whom and how that document was circulated?---This was sent to all Swinburne students, it's my understanding, and is part of the information on the results ban page.
PN302
Yes. I would seek to tender that, if I might, your Honour.
PN303
THE VICE PRESIDENT: Ms Richards?
PN304
MS RICHARDS: I wouldn't mind having a proper look at it. I have no objection, but with leave I would like to ask a couple of questions about it.
THE VICE PRESIDENT: Fine.
**** ANTHONY HUME REED RXN MR MCDONALD
<FURTHER CROSS-EXAMINATION BY MS RICHARDS [11.34AM]
PN306
MS RICHARDS: Perhaps you could have a look at the document. We seem to only have one copy between all of us.
PN307
THE VICE PRESIDENT: Do you want a copy made?
PN308
MS RICHARDS: No.
PN309
MR McDONALD: I'm sorry, it's the only copy I have.
PN310
THE VICE PRESIDENT: That's okay, Mr McDonald. Should we take a morning tea adjournment now and we can make some copies. You can ask those questions after the break.
PN311
MS RICHARDS: Certainly, your Honour. This may be an opportune time to provide the commission with Mr Cullinan's statement as well. I don't believe we've done that.
PN312
THE VICE PRESIDENT: Thank you.
PN313
MS RICHARDS: It's something to read with your morning tea, your Honour.
PN314
THE VICE PRESIDENT: Have you got a copy of that, Mr McDonald?
PN315
MR McDONALD: Yes, I have, thank you, your Honour.
PN316
THE VICE PRESIDENT: Thank you. We will take the morning tea adjournment now and resume at 10 to 12.
**** ANTHONY HUME REED FXXN MS RICHARDS
<SHORT ADJOURNMENT [11.35AM]
<RESUMED [12.02PM]
PN317
THE VICE PRESIDENT: Yes, Ms Richards?
PN318
MS RICHARDS: I might just ask those few questions.
PN319
THE VICE PRESIDENT: Yes, sorry.
PN320
MS RICHARDS: We did identify just after you rose, your Honour, that the documents are in fact attachments to Mr Cullinan's statement so if Mr Reed might be shown that folder - - -
PN321
THE VICE PRESIDENT: Sorry, which one?
PN322
MS RICHARDS: They're the same document.
PN323
THE VICE PRESIDENT: Can you hand that to the witness, please?
PN324
MS RICHARDS: Can you turn to tabs 14 and 15 in that folder and just confirm for yourself that those are the same as the two sheets that Mr McDonald handed you just before the break?---Yes, it appears to be so.
PN325
Yes, and my question to you is simply this: this was information posted on the Swinburne University web site, was it not?---Yes, it was.
PN326
Yes, and that's the way in which it was communicated to students?---That's the way this information has been communicated. There's been other ways by which students have been communicated as well such as SMS's.
PN327
Thank you.
PN328
THE VICE PRESIDENT: Just before you finish that, you gave evidence about a specific example of a specific student who had sought a special exemption and it had been refused and was actually refused to provide the informal indication as well but offered to write, as you had offered, letters to the employer explaining that the results were not available because of industrial action?---Yes, your Honour.
**** ANTHONY HUME REED FXXN MS RICHARDS
PN329
I just can't recollect. Was that a student who was applying for a job, did you say?
---Yes, the student had a job interview.
PN330
But they weren't a graduating student?---They had one more semester to go if they pass all of their units, your Honour.
PN331
Thank you. Anything arising from that, Ms Richards?
PN332
MS RICHARDS: No, sir.
PN333
THE VICE PRESIDENT: Mr McDonald?
PN334
MR McDONALD: No, thank you.
PN335
THE VICE PRESIDENT: I think we are done then. You have got no re-examination arising from those few questions of Ms Richards.
PN336
MR McDONALD: No, thank you.
THE VICE PRESIDENT: Thank you, Mr Reed.
<THE WITNESS WITHDREW [12.05PM]
PN338
THE VICE PRESIDENT: Is that your case, Mr McDonald?
PN339
MR McDONALD: It is, thank you, your Honour.
PN340
THE VICE PRESIDENT: Thank you. Yes, Ms Richards?
PN341
MS RICHARDS: Thank you, sir.
PN342
THE VICE PRESIDENT: I take it you're tendering the statement of Mr Cullinan.
PN343
MS RICHARDS: I might just make some very brief opening remarks before I call Mr Cullinan.
PN344
THE VICE PRESIDENT: Certainly.
PN345
MS RICHARDS: The union's response to this application is that the evidence comes nowhere near satisfying the threshold in section 424(1)(c). It doesn't establish that there has been any danger to the welfare of a part of the population which are the particular words of a section that the employer has set out to satisfy. At most the evidence establishes some administrative inconvenience and some inconvenience to students but that is not sufficient to establish the jurisdictional threshold that must be reached before an order can issue.
PN346
Your Honour raised with me during the course of cross-examination the Qantas scenario in which the employer had locked out all of its employees in response to - - -
PN347
THE VICE PRESIDENT: That's not this case.
PN348
MS RICHARDS: It's not this case. There's no industrial action on foot by the employer. The decision not to run the at-risk program for the 80 per cent or so students whose results are known or are known in sufficient measure is a decision of the university's that cannot be characterised as industrial action in any way, shape or form and similarly the decision to delay commencement of the unsatisfactory progress or show-cause procedure again is not employer response action and there ends the equivalence between the Qantas case and this case. They're vastly different levels of - - -
PN349
THE VICE PRESIDENT: I was citing it not because I thought it was on all fours but only as sort of a very stark illustration that it can be conduct of the employer rather than the union that gives rise to the relevant risk. I appreciate that there there was employer response action being taken and here I agree with you that what the university has done in relation to the at-risk category and in relation to the other category is not properly characterised as an employer response action, but the failure to take that action still has an impact on students. The historical figures about people participating or students participating in the academic support progress versus the four that have registered at the moment rather suggests that there may be an impact and the issue in my mind is whether that's causally linked to the ban. On one view it is.
PN350
MS RICHARDS: Yes.
PN351
THE VICE PRESIDENT: That may be a matter that you wish to develop in final submissions.
PN352
MS RICHARDS: It will be, your Honour, but the submission will be to the effect that the university's case here is no more than crocodile tears. The university is not genuinely concerned about the welfare of students who are not able to access the at-risk program, nor is it genuinely concerned about the risk to students who are not able to step through the show-cause process at present because if it was, it would offer those programs and run those procedures in relation to the 80 per cent of students who have all of their results or enough of their results for it to be known that they satisfy the criteria. To come here and say that there is this danger or peril to students' welfare when the university itself is responsible for 80 per cent of that is, as I say, crocodile tears.
PN353
THE VICE PRESIDENT: Thank you.
MS RICHARDS: That's the gist of the case, your Honour. I'll go to the detail and the law in submissions, but if I might call Mr Cullinan.
<JOSHUA JAMES CULLINAN, CALLED [12.09PM]
PN355
THE VICE PRESIDENT: Thank you. Any objection to Mr Cullinan's statement, Mr McDonald?
PN356
MR McDONALD: No, your Honour.
PN357
THE VICE PRESIDENT: Obviously I will treat matters that are argumentative or matters of submission as precisely that.
PN358
MR McDONALD: That would be appreciated, your Honour.
THE VICE PRESIDENT: The statement of Mr Cullinan will exhibit N1.
EXHIBIT #N1 WITNESS STATEMENT OF JOSHUA JAMES CULLINAN
THE ASSOCIATE: State your full name and work address, please?---My name is Joshua James Cullinan. I work out of 10 Clarendon Street, South Melbourne.
<JOSHUA JAMES CULLINAN, SWORN [12.10PM]
<EXAMINATION-IN-CHIEF BY MS RICHARDS [12.10PM]
PN361
MS RICHARDS: Mr Cullinan, can you, please, state your full name and your work address for the record?---Yes, I'm Joshua James Cullinan and I work out of 120 Clarendon Street in South Melbourne.
PN362
And you are employed by the National Tertiary Education Union as an industrial officer in its Victorian division?---Yes, I am.
PN363
And you have particular responsibility for Swinburne University?---I have for the last 18 months or so, yes.
PN364
Mr Cullinan, have you made a statement in this matter?---I have.
PN365
And that is a statement of some 68 paragraphs and 34 attachments?---Yes.
PN366
Do you have any corrections you would like to make to the statement?---No.
PN367
Is your statement true and correct?---It is.
PN368
Thank you, your Honour. I have no further questions.
Just wait there, Mr Cullinan. Mr McDonald may have some questions for you.
<CROSS-EXAMINATION BY MR McDONALD [12.11PM]
PN370
MR McDONALD: Mr Cullinan, does the NTEU have an autonomous branch at Swinburne University?---The NTEU through our rules has branch structures.
PN371
Yes?---"Autonomous" is probably not the right word but it certainly has a branch with branch-elected officers and they meet as a branch committee.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN372
So there is a Swinburne branch of the NTEU and there is a Deakin University branch of the NTEU and under the union's rules they are recognised as discrete branches?---That's my understanding.
PN373
Are they subject to direction and control from the more senior officers of the Victorian branch of the NTEU?---I don't know. We certainly try and encourage through our national council our supreme governing body policies and they are part of action plans for our divisions which I help build and help implement as a division industrial officer, but what the members do at Swinburne and the votes they take and the actions they pursue are theirs. I guess they could be questioned at division executive and division council if there was concerns or our state secretary could try and intervene, but I don't understand - - -
PN374
So you've given evidence about the exemptions which are in place at Swinburne?
---Yes.
PN375
Those particular exemptions – are they a result of a decision which has been taken by the Swinburne branch?---Yes.
PN376
Yes, and it's not a case that the Victorian branch or the Victorian branch secretary has come in over the top and said, "No, you can't have those exemptions. You've got to have different exemptions." The Swinburne branch made a decision and those are the exemptions?---The Swinburne branch took advice from officers. The one obvious example is all graduating students was a decision that was made by our national office. I understand that the notices of industrial action are authorised by our national office.
PN377
Now, are you the Swinburne branch organiser?---No; no, I'm not. All of our industrial and organising staff are employed by divisions of the national office. I'm employed as a divisional industrial officer.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN378
As part of your portfolio of responsibilities, is one of those responsibilities organising duties at Swinburne?---It is, yes.
PN379
Are you also - - -
PN380
THE VICE PRESIDENT: Can I just interrupt here?
PN381
MR McDONALD: Yes.
PN382
THE VICE PRESIDENT: You describe yourself as an industrial officer?---Yes.
PN383
In many unions there is a sort of a broad distinction between organisers and industrial officers. Organisers do organising. Industrial officers do the industrial work. That can be overlapped. Are you comfortable with the notion that you're the organiser for Swinburne University even though you're styled as an industrial officer?---I didn't understand that I was being asked whether I was an organiser per se. I'm employed as an industrial officer and we have a branch industrial organiser as well. I like to think I buck the trend and find a happy ground in between organising and industrial officer work. So I certainly do cases in the commission and other work like that, but I also do a lot of member organising.
PN384
Are there other organisers who have a significant responsibility in respect to Swinburne?---Yes; yes, there's a full-time branch industrial organiser.
PN385
MR McDONALD: In terms of the Victorian branch of the NTEU, are you the person employed within the branch who has the most direct responsibility for Swinburne in terms of negotiations of a new agreement and the like?---Yes.
PN386
Yes, and, as I understand your evidence, you've had direct input into the exemption processes which have been put in place at Swinburne?---Yes.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN387
Correct?---Yes.
PN388
I think your evidence is you've actually participated in meetings of the exemption committee and considered – been part of the consideration of applications for exemptions?---No.
PN389
No?---I've supported and had oversight but I've never been a member – participant of the three-member exemption committee but I've certainly been at meetings.
PN390
You've been at meetings while applications have been considered?---Yes.
PN391
All right. Now, how many NTEU members are there at Swinburne amongst the academic staff?---There is about 400. I don't actually know how many academic staff members.
PN392
Do you know what proportion of the academic staff are members of the NTEU?
---I think it's about 40 per cent.
PN393
About 40 per cent, all right. The figures we've heard, I think, of 78 per cent of students having received all of their results – does that simply reflect the fact that there are a proportion of academics who are not members of the NTEU and are not complying with any ban in respect of transmission of results? Do you follow the question?---I do. If they're not members of the NTEU, then they're not permitted to participate in the protected industrial action.
PN394
No, so they are transmitting results?---Yes.
PN395
Thank you?---I hope so.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN396
Now, in terms of the NTEU membership amongst academic staff, are you aware that any direction has been given to those members that if they are approached by a student - a student comes to an academic in statistics 1 – a first-year student comes to the academic. He's an NTEU member and the student says, "Look, I think I might've failed semester 1. I need to know so I can know whether or not I'm qualified to go into statistics 2 in semester 2. Can you, please, let me know my results?" In that situation, has the NTEU branch at Swinburne given a direction to all the academics that they are to respond to that request or is it a matter for the individual academic?---We published advice and sent it to all our members about the bans and about what to do when you're asked by a student. I think it's one of the attachments and that certainly was available from 21 May and in that advice we made clear that we encourage staff, our members, to advise – to respond to students that make requests about their academic progress.
PN397
You have encouraged them. Let's be clear about this, Mr Cullinan. I'm asking whether or not a direction has been given. I take it from your answer that members have not been given a direction that if they receive such a request, they must respond. Is that so?---I've been probably the most responsible person - - -
PN398
Can you, please, just answer the question? It's a very simple question. The question is: have the members been given a direction that if they receive a request, they must comply with the request?---No, we do not direct our academic staff members to do anything.
PN399
So the highest it's gone is it's an encouragement. Are you able to point us to the document you're referring to?---It's at tab 31.
PN400
At tab 31, and where's the relevant part that you're referring to?---Point 8.
PN401
It's the "You may like to inform students verbally". Is that the paragraph? Is that right?---Yes. We've separately – when we became aware of the university's advice to students that they should approach staff about their academic progress, at our member meetings – at all of our member meetings I explained to staff that they should respond to those requests quickly and I've sought feedback from members as well. When members have contacted me about this issue, because obviously some have, I've just encouraged them to follow that advice and that is to provide a verbal explanation.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN402
To provide a response, "You've failed" or "You've passed"?---To be mindful of telling a student that they've failed so to do that in an appropriate setting if they're concerned about the student, but otherwise, yes, to provide some verbal feedback.
PN403
That's the advice that you personally have provided to members who have come to you and sought your advice. Correct?---Yes.
PN404
And can I suggest to you that that advice which you have provided to your members is an acknowledgment on your part of the difficulty that students, for example, students who have completed a unit in semester 1 which is a prerequisite for studies in semester 2 – it's an acknowledgment on your part of the difficulties such a student may encounter if they commence the studies in the related subject in semester 2 and are then subsequently told they've failed. That's why you've given that advice. Correct?---No, the reason for the advice is a little bit different and that is that the members often ask us because they don't know quite what's happening or what to do and our advice always starts with, "Get them to apply for an exemption," and so the real basis of why I encourage members to give that advice is because we're trying to minimise the conflict between the student and the staff member. That's been a live issue for me since 21 – 22 May.
PN405
Of course, but what I'm putting to you, Mr Cullinan, is that it clearly would have been an option for you to simply tell your members, "No, if a students comes to you and asks for that information, don't give it to them. Tell them we're in the middle of an industrial campaign. There's a ban in place. Sorry for the inconvenience but you can't have that information." You haven't done that. You've adopted a different course. You've recommended to your members that they provide that information and I'm putting to you squarely the reason why you personally have done that is that it's an acknowledgment on your part of the difficulties confronting the students, particularly those who are waiting for results in prerequisite subjects. That's correct, isn't it?---No, I'm saying no.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN406
THE VICE PRESIDENT: Can you explain why?---It's perhaps a little bit to do with the workforce, but I found that telling an academic to do anything is not particularly helpful and so these academic staff that are contacting me are generally on a point of perhaps lifting the ban. Their queries aren't directed at the strength of our industrial action but more about where they sit with implementing the industrial action. So I am minded at trying to find a middle ground, to have them continue with the ban but to ameliorate any concerns they have about the conflict that they're receiving from students or from superiors. So that's the basis of why I would advise that. I understand others might advise for a different reason but that's why I advise it. It's about our members maintaining the ban.
PN407
MR McDONALD: Have a look at paragraph 55 of your statement, please, Mr Cullinan. The fact of the matter is that in respect of those five categories you have given a direction to your members. You have told them what to do and you've told them in respect of those categories of students they're to release the results. That's right, isn't it?---Yes, we do give legal advice so I'm - - -
PN408
It's not legal advice?---It's not legal advice but - - -
PN409
You're just telling them what to do?---Well, it's about compliance with the industrial action so I was – we had agreed to release those results and so I was concerned that the action remain protected so we had to make clear to all our members that they had to lift – when they received those emails from management, they had to release those results.
PN410
The branch at Swinburne has seen fit to identify these five specific exemptions?
---Yes.
PN411
You've given evidence that the personal advice you've provided to your members is, "If approached by an individual student, tell them the result." Why not simply add number 6 to the general exemptions, any student who's failed a unit of study in semester 1?---Well, because - - -
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN412
Why not?---Because we decided that it wasn't as – purely on its own basis wasn't a ground of hardship.
PN413
You've had a chance to read the evidence of Prof Pilgrim and Mr Reed. You've read that evidence?---Yes, I have.
PN414
Do you not accept that there would be a hardship to the - on the material before the commission approximately 300 students of the 1680 whose results are withheld from a prerequisite subject that there would be no – are you saying there's no hardship to those students if in two months' time they're told, "Sorry, you've failed the prerequisite"? You say that's no hardship?---Not for the purposes of exemptions committee, no.
PN415
That's not an answer to the question. Are you saying there is no hardship in the scenario that I have outlined to you that a student who completes a prerequisite unit in semester 1, results are withheld, enrols in the related subject in semester 2 and is told in two months' time, "I'm sorry, you have failed the prerequisite"? Are you denying that there is any hardship there?---On a continuum of hardship, no, there would be some hardship, I understand.
PN416
There is hardship. You don't take issue with the evidence of Prof Pilgrim that a student who enrols in a related unit in circumstances where they have not successfully completed a prerequisite unit there's a significant risk of failure. You don't take issue with that, do you?---I don't know. That's not my area of expertise.
PN417
You don't challenge that evidence. What I'm putting to you is these students are being set up for a fall, aren't they? They enrol in a unit, a related unit, in semester 2 for which they have not completed the prerequisite. They're being set up for a fall?---No, I don't accept that.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN418
There's an increased risk they're going to fail. You don't take issue with that, do you?---I didn't understand that from the evidence, from the statistical evidence, but it's not my area - - -
PN419
That is the evidence. That is the evidence before this commission which has not been challenged, that there is an increase in the prospect of failure?---I'm an industrial officer at a union studying human - - -
PN420
Very well.
PN421
THE VICE PRESIDENT: Mr Cullinan, just before you move on from that topic, does the university offer supplementary exams, do you know?---I understand they did offer a couple of weeks ago supplementary exams to those students who were unable to participate.
PN422
So the university does offer supplementary exams. That's not a foreign concept at Swinburne?---It's not a foreign concept, but they're for students that weren't able to participate in the first exam due to illness or some other – that's what I understand.
PN423
So you don't get to sit a supplementary exam because you have failed but only just?---No, not that I understand. I've asked and that's not what I understand.
PN424
MR McDONALD: That's so. There are no supplementary exams.
PN425
THE VICE PRESIDENT: Yes, Mr McDonald.
PN426
MR McDONALD: Now, insofar as you have provided advice to members that if a student comes to an academic and asks the details of their performance, you're relying on the particular student to have the confidence, the courage of their convictions, to go and speak to their academic and ask for their results. It only works when someone actually goes and knocks on the door and says, "How did I go"?---I don't understand the question.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN427
The advice that you took us to attached to your statement was, as I understand it, advice to the effect that if a student initiates
an inquiry as to how they have performed, you're encouraging the academic to respond to the inquiry. Correct?
---Yes, we're encouraging them to seek and exemption application, but at the end of the day if they want to know how they've gone
academically, yes, to respond.
PN428
Yes, but it's only reactive. Let me be clear about this. You haven't provided advice to your membership that the member should initiate
contact with the student. It's only when the member is responding to an inquiry from the student?
---No; no, on 21 May we wrote to – thereabouts we wrote to all members and told them to contact all their students and to give
them advice about what was going on and why and how they can apply for an exemption.
PN429
Let's be clear. I'm talking about the discussion which takes place about someone's results and you've shown us a document which is to the effect that if a student comes to an academic and says, "How did I go?" you're encouraging them to respond?---Yes.
PN430
My question to you is: that's only in those circumstances that that advice prevails, that is, where the student initiates the request of the academic?---Yes.
PN431
Why do you consider it not to be appropriate for the academic to initiate that discussion?---I haven't thought about it.
PN432
Do you agree with me that in relation to those students who have failed their assessment, in broad terms we're talking about the bottom 15 of the student profile in terms of academic performance? Correct?---I don't actually know, but I think from the documents it was the bottom 18 per cent.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN433
17 per cent, I think, and you would accept that as a general proposition some of – these are young kids. They're 18 and 19 years old?---Many of them, yes.
PN434
If they're performing marginally in an academic sense, it's a small step to assume that they might lack a bit of confidence. They might not be the sort of person who's going to feel good about going and knocking on the door of their teacher and saying, "How did I go in the exam"?---I have no idea. It was a long time ago that I was an 18-year-old student.
PN435
Can I put this to you, Mr Cullinan: the real reason why the Swinburne NTEU branch has not added number 6 to the list at paragraph 55, that is, an exemption in respect of any student who's failed a unit of study in first semester, is that you, the NTEU at Swinburne, are acutely aware of the adverse impact that that is having on students?---No.
PN436
And the reason you won't grant the general exemption is that you are hoping that the adverse impact on students will in turn be a
source of pressure on Swinburne?
---No; no, when we notified the ban, we hoped – and I think my statement goes to this – we would reach an agreement very
quickly. We know – I mean, it's silly to suggest otherwise. We know that the ban annoys and inconveniences many students
and we hope that that impacts upon the university. In terms of an extra dot point 6 we're interested in maximising the effect of
our ban and we're not – if we genuinely believed that a failing student in the circumstances where their result was required
for a prerequisite, for example, was a situation of hardship, we would grant it. We've been erring on the side of granting exemptions
so I don't think that's accurate.
PN437
I thought from your earlier evidence you had already conceded that there was some hardship in the case of the prerequisite student who's told in two months' time that they have failed a prerequisite?---I said on a continuum of hardship there was some hardship, yes.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN438
THE VICE PRESIDENT: I must say I read that answer as being carefully calibrated to indicate that it was going to fall below the threshold or at least to give Ms Richards the room to move to make that submission.
PN439
MR McDONALD: You readily accept, do you not, that it's important that where there is a student who is identified as being a marginal student, an at-risk student, they be able to identified promptly and that remedial measures be implemented to assist those students?---Yes.
PN440
And you would accept that in relation to the cohort of some 6800 students who currently have their results withheld, there will be a proportion of those, probably in the range of somewhere between 15 to 20 per cent of those students, who are going to fall into that category. They're failing students. Correct?---I'm not quite sure on the numbers.
PN441
The data shows that there's historically an average fail rate of 17 per cent?---Yes.
PN442
So if you've got 6800, it's a safe assumption that around 17 per cent of that number are going to be marginal. They're failing?---I don't think that's a safe assumption. I think that there's many of our members who have – some of our members have released results like the person I refer to at the end of statement where - - -
PN443
No, please just answer the question?---I'm trying to explain.
PN444
You're not answering the question?---I'm trying to explain that there's – some members have released all their failing student results and so the 6800 would be skewed towards that have passed so it won't be the 15 to 20 per cent. I think it will be fewer than that.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN445
You've spoken to those members who have released the results. You've had that discussion?---Not all of them.
PN446
Some of them?---Some of them, yes.
PN447
Can I put it to you that those members must have articulated to you the reasons why they wanted to do this?---Some of them, yes.
PN448
Well, all of them; not some of them. If you've had a discussion with them about releasing results, someone's said between you and that person why they're doing it. Correct?---No.
PN449
THE VICE PRESIDENT: Hang on a minute. From your own perspective and the effectiveness of the ban you don't think that fail results should be released generally by a participating member?---That's right.
PN450
If a member goes ahead and releases them, they're doing it contrary to the preference that the union has as expressed by you?---Yes.
PN451
You would say that, wouldn't you, in the ordinary course to the member, "Look, I don't think you ought to do that for these reasons"? You would seek to persuade them in an ordinary - - -?---I do, but not with all of them. There's probably five or six of them and a couple of them I wouldn't go as far as to inquire as to why. I'd just have a conversation, try and talk about what's happening with bargaining and the timelines and let them make their decisions because I know that if I push it too far, it may very well be that that member releases all the results. So I'm trying to play that through – I'm trying to get an outcome which sees the results ban maximised, but for some of them, yes.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN452
Some of them have - - -?---Articulated why.
PN453
- - - articulated that they think that this part of the ban is not appropriate, for want of a better description?---None of them – none of them have said that. There was a couple that were going on leave and they were concerned about withholding results while they were on leave and we might achieve something in bargaining and have to lift it and the administrative burden was too high. A couple have spoken about the administrative burden, about receiving emails from management and emails from us with exempted student lists, and that that was too much for them. One member spoke about a high fail rate - this person that is at the end of this statement and about the high fail rate and her concern for the students and she spoke about that with me and that's why we recommended - working together on it we recommended she give a fail – a list of the failed students to administration. That was the only one that identified the sort of experience of the students to me.
PN454
MR McDONALD: That academic was concerned about the adverse impact of the ban on her students?---Yes.
PN455
And for that reason she proposed to release the results and you agreed with that course of action?---No; no, she proposed to give a list of the failed students to administration and administration refused.
PN456
And you agreed with that course of action?---For her to give that list?
PN457
Yes?---Yes.
PN458
And you agreed with that course of action because you accepted her viewpoint that it was having an adverse effect on the students?---No.
PN459
You said to her, "Look, don't be silly. This isn't having an adverse effect. You don't need to do that." Is that your evidence?---No; no, what I'm trying to say is that I was trying to find a medium where she withheld as much of the results as she could to maximise the impact of our bans while meeting her concerns. It wasn't because I felt that there was some hardship to her students. She obviously had some concerns and that's why I encouraged her to not only do once but go back a second time to a faculty administration and ask again and it was when they refused a second time that she made the choice to release all the failed students.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN460
When you use the phrase "maximise the impact of the bans", you're leaving the words in parenthesis "on the students". Isn't that right, Mr Cullinan?---No. I don't think that's correct.
PN461
Your evidence is completely disingenuous, Mr Cullinan.
PN462
THE VICE PRESIDENT: That's a bit tough, isn't it, Mr McDonald?
PN463
MR McDONALD: Maximise impact of bans on who?---One the employer. That's what we're committed to take industrial action towards and sometimes the clients or customers or in this case students are affected by our action. I understand that.
PN464
That particular academic that you're referring to had a very different view of the world to you, didn't she? Her view was the impact here was on the students?---I can talk a lot about that academic if you'd like, about her employment arrangements and what she's suffering from.
PN465
Why don't you just answer the question?---She's a woman in insecure employment.
PN466
Just answer the question. I put the proposition to you that that particular academic had a very different view regarding the impact
of the bans than you, that is, her view was the impact was on the students and it was unfair. That's correct, isn't it?
---I don't think either of us know - - -
PN467
THE VICE PRESIDENT: Your position is that you accept that there's an impact on students certainly to the level of annoyance and
stress, but by that methodology, by that mechanism, more pressure is applied on the university?
---That's right.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN468
Indeed, I think you actually articulate, don't you, that this is the most effective and successful form of action you can take?---Yes; yes, it is and every student that has applied to our exemption committee and cited stress or anxiety – we haven't asked for any medical certificates or anything like that. We have just granted every single exemption where they cite increased stress or anxiety. So we understand that it occurs and we try and exempt every student that identifies that as a problem.
PN469
MR McDONALD: Let's say this application today is unsuccessful, Mr Cullinan. Is it your evidence to the tribunal that if the 1680 who currently have results withheld in prerequisite units – if they all send requests into the exemption committee, "I need to know my results so I know whether I'm qualified to do the subjects in semester 2," is it your evidence to the tribunal that those exemptions will be granted?---No.
PN470
Your evidence to the tribunal is they will not be granted?---If they cite that they need the unit result for a prerequisite, they won't be granted.
PN471
They won't be granted?---Not on the basis of that, but if they seek other bases for their exemption, we'll consider it.
PN472
Not on the basis that they're concerned that in two months' time they might be told they failed a prerequisite unit. That's not a ground for an exemption.
PN473
THE VICE PRESIDENT: And they have lost the money. They have incurred the full expense for the unit they're not qualified to undertake in semester 2?---No, our practice until now – if that student identified that they were anxious and stressed about that issue, that would be granted, but it's purely where they say that the prerequisite is required that – and there's a few applications like that because the university has encouraged them. We have denied them all.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN474
MR McDONALD: So if all 1680 write and say that they're anxious and stressed about it, they'll all get the exemption?---I would expect that we would – if that was to occur en masse, we'd probably look towards similar situations as other universities have of medical certificates and other actions, but if it was genuine, every one of them would be granted. I understand that La Trobe University has statutory declarations that students have to sign. Other universities have medical certificates that have to be required. We haven't required any of that until now. We'd hope not to have to.
PN475
Now, the purpose of the exemption committee process at Swinburne is to reduce the adverse impact of the ban?---Yes.
PN476
Is that right? That's why you have got those five exemptions you've referred to in paragraph 55 of your statement?---No; no, the special exemptions committee doesn't consider - those five exemptions aren't part of what the exemptions committee goes through. The exemptions committee goes through specific exemptions which are separate to those.
PN477
Okay, but isn't the general exemptions committee – aren't the general exemptions part of the same process, that the union has recognised that they're a class of general exemptions and that if a student falls within one of those categories, then for reasons of avoiding hardship it's appropriate that they be granted an exemption such as a graduating student? You don't want a graduating student to be locked out of the job market?---No, it's in part. I think it was also administrative. It was administrative ease to have a general exemptions category and we also didn't want to include some groups of students that weren't going to maximise the impact of the ban on the employer. So, for example, students that were enrolled at Northeastern University in the United States and they did one unit at Swinburne – in our view there was no particular reason for them to have their result held up while the ban was in place but – so that was the general basis of the discussion I had with Richard Williams and Andrew Smith in human resources. I think we probably perceived, yes, that there was a hardship of not being able to transfer to a non-Swinburne course or university; that the exchange in second semester and the approval requires the results. I think we saw that as a hardship.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN478
Yes?---Sponsored students is an obvious hardship. We've been granting those well before the general exemption was granted. If they're primarily enrolled in other courses, I didn't know if we saw that as a hardship, but we were willing to agree with that.
PN479
Now, you are aware that until recent times the Deakin University branch had granted an automatic exemption in respect of students who've been identified as at risk in another trimester and/or on a warning or restriction from an academic progress committee. You're aware that that was a general exemption in operation at Deakin?---Not before I got the application.
PN480
You weren't aware of that?---No.
PN481
You've got no understanding as to the basis upon which the NTEU branch at Deakin would have put in place that general exemption?---No, I don't know.
PN482
But do I understand your evidence right from the outset that you would expect that there would've been some oversight of these arrangements from the Victorian branch of the NTEU?---Yes, I'd hope so; yes.
PN483
You would have a counterpart at Deakin University who is a effectively a conduit between that university and the Victorian branch?---Yes.
PN484
That's to ensure that nothing is being done at Deakin University which is inconsistent with NTEU policy?---Yes. I should be clear that there is no industrial officer at Deakin branch. It's a bit of an anomaly, my presence at Swinburne. It's been particularly busy for the last couple of years, but that's right. They have a responsibility to work out of the division and maintain policy at the branch.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN485
Yes, and so there's a conduit from the branch through an employee of the branch through to the branch. Correct?---They're not an employee of the branch. They're an employee of the division.
PN486
Of a division, yes, thank you. Whilst you don't have any specific knowledge of the arrangements which were put in place prior to this exemption being approved, it's a safe assumption that the Victorian branch would have had some knowledge of this particular exemption.
PN487
MS RICHARDS: Well, this is just the most entirely speculative question that the witness has made it plain he can't answer so it's a matter for submissions, if at all.
PN488
MR McDONALD: Perhaps the witness should just try and answer the question.
PN489
Can you answer the question?
PN490
MS RICHARDS: I'm objecting to the question.
PN491
THE VICE PRESIDENT: Yes, the objection is that it's speculation. Your response to that is that you're inviting speculation.
PN492
MR McDONALD: I will be inviting you to draw an inference, your Honour, that this list of exemptions must have had the knowledge of the NTEU.
PN493
THE VICE PRESIDENT: Given the quality of the evidence and the nature and the way in which it has been put in the balance of the statement, I think that question and similar questions ought be allowed. It's a matter for submission as to weight, Ms Richards. If that's speculation, there's a lot of speculation in this statement already that has been allowed.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN494
MR McDONALD: Yes.
PN495
MS RICHARDS: Plenty of speculation all round.
PN496
MR McDONALD: I will repeat the question to you. What I'm putting to you is that based on the evidence that you gave earlier regarding the relationship between the branch at a particular institution, be it Swinburne, be it Deakin, as I understood your evidence earlier – I stand corrected, but I understood your evidence to be earlier that the branches – there's a degree of autonomy in terms of the decision-making process within the branch at a particular institution but that ultimately the Victorian branch of the union has an oversight to ensure that nothing's being done which is inconsistent with branch policy?---With division policy?
PN497
Yes, division policy?---I don't know. At the moment it has been so busy that I would expect – and I was genuinely surprised when I read the list about Deakin so I don't know if there is any oversight. I just don't know.
PN498
And, for instance, if you look at - item number 1 of the list at Deakin is students who are graduating at the end of trimester 1 so that's consistent with division policy that all exemptions will include that exemption. Correct?---It was a union decision - I don't know about the Deakin list, but it was a union decision that the graduating students be exempted across the union for the purposes of this form of industrial action at this time.
PN499
Yes, and can I put this to you: the inclusion in the list of the general exemptions at Deakin of item number 3, students who have been identified as at risk in another trimester or on a warning or restriction from an academic progress committee, is an acknowledgment by the Deakin University branch of the NTEU of the potential hardship to those individuals students if they were not subject to that exemption?---I don't know.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN500
You couldn't hazard a guess. Could you think of any other reason? Take your time. Think of any other reason other than hardship why that category of exemption would be included?---The main reason is the one that I referred to before. It's about member support for the industrial action. I mean, I would've thought that's the reason for every – almost every exemption category. It's either administrative ease or it's about ensuring the members support our action.
PN501
THE VICE PRESIDENT: Surely it's also about making sure that you don't pass the threshold of threatening to endanger health and welfare. Leading to the ban being suspended or terminated which removes its utility takes away your single best weapon?---There's two issues with that. That's why we excluded graduating students from the start. It was about that direct concern.
PN502
And your preparedness – when I say "you", the union's preparedness to adjust the categories of general exemption.
You're prepared to increase them as you're persuaded or identify that they ought to be included. You say it's not just about minimising
threatened endangerment of health and welfare. It's also about keeping the members happy, et cetera, and the other reasons you have
given?
---Yes. Maybe I'm struggling a little bit with the general exemptions. I think it's a bit – for our branch they were an additional
item that we weren't even considering as an approach until the university made the request of us in late June. So our view had always
been that - - -
PN503
It was just going to be graduating students and those exempted by the committee?
---That's what we had always planned, yes.
PN504
So is it fair to say that you're given quite a lot of latitude and independent responsibility by the union to decide how things ought be conducted at Swinburne?---Yes; yes, I think that's fair.
**** JOSHUA JAMES CULLINAN XXN MR MCDONALD
PN505
Yes, Mr McDonald?
PN506
MR McDONALD: Is it Mr Colin Long is the branch secretary?---Dr Colin Long.
PN507
Dr Colin Long; and he is leading the negotiations at Deakin University for a new agreement, is he not?---I understand he is.
PN508
So in those circumstances one would expect that he would have personal knowledge of the protected industrial action regime at Deakin in respect of those negotiations?---Whilst I'd hope he would, I'd have no idea what he does know.
PN509
Yes?---I know that he's very busy. He's across four branches, I think.
Thank you. I have got nothing further for the witness.
<RE-EXAMINATION BY MS RICHARDS [12.55PM]
MS RICHARDS: Just a couple of questions, Mr Cullinan. You said in answer to questions that were put to you from Mr McDonald that you considered that a student who later found well into the semester that they had failed a prerequisite for a subject that were enrolled in in semester 2 would be on the continuum of hardship. Where on the continuum of hardship would you place that student?---I think it would depend on their particular circumstance, but it would be – it would be ordinarily at the low end, but if they came to us at that time and they were stressed and anxious and upset, then I'd, you know, put them further up the continuum.
PN512
It was also put to you that students who might be marginal in the bottom 15 to 17 per cent also tended to be young, 18 or 19 years old. Are you able to tell the commission anything about the mature-age student profile at Swinburne University?---I don't know a great deal about it.
**** JOSHUA JAMES CULLINAN RXN MS RICHARDS
PN513
You are one yourself?---I certainly – I guess I'm older now. Yes, I'm a student and all the students in my classes are well past 21, 22. There's a few, I guess, that went straight out of degrees into their masters programs. We're aware of students right across - you know, I think it's something to be lauded probably that the university is able to enrol mature-age applicants, but, yes, I don't know that detail. I certainly am and in my classes, one of which has been withheld, they're older.
PN514
Thank you. I have no further questions. Thank you, Mr Cullinan. He might be excused.
THE VICE PRESIDENT: Thank you, Mr Cullinan.
<THE WITNESS WITHDREW [12.57PM]
PN516
MS RICHARDS: That concludes my case, sir.
PN517
THE VICE PRESIDENT: Thank you. I note the time. Ms Gale, I understand Catanzariti VP is hearing a stay application in respect of the NTEU's stay of my order of Saturday. Just pardon me one moment. I'm sorry, I have misread a note. Just one moment. I'm embarrassed, I'm sorry, Ms Gale. I don't think I need to say anything further to you at the moment, Ms Gale. I was just wanting to give you the heads up to head off to some other hearing if you were unaware of it.
PN518
MS GALE: I am aware it's been cancelled, your Honour. I'm aware that there was another matter.
PN519
THE VICE PRESIDENT: I misread the note that I was handed up. I understood that the stay application had been listed at 1.00 and people can't bilocate and therefore it was necessary for me to put the 418 application back. It was filed yesterday and supposed to be dealt with within two days. I'm now told that I'm supposed to delay the hearing of the 418 application until after the stay application has been heard which is not until tomorrow. I'm not going to bother giving you further explanations about what is happening internally but suffice it to say I will go and deal with that now.
PN520
MS GALE: Thank you, your Honour.
PN521
THE VICE PRESIDENT: Are the parties happy with a resumption at 2.00?
PN522
MR McDONALD: Yes, thank you.
PN523
MS RICHARDS: Yes, your Honour.
PN524
THE VICE PRESIDENT: Thank you. I will resume at 2.00.
<LUNCHEON ADJOURNMENT [12.59PM]
<RESUMED [2.03PM]
PN525
THE VICE PRESIDENT: Yes, Mr McDonald.
PN526
MR McDONALD: Thanks, your Honour. We have prepared a folder which contains the submissions, a draft order, and the authorities we've referred to in the submissions.
PN527
THE VICE PRESIDENT: Thank you, Mr McDonald.
PN528
MR McDONALD: What I propose to do is simply to make some additional observations over and above matters which are in the submissions, if that's convenient.
PN529
THE VICE PRESIDENT: Yes.
PN530
MR McDONALD: We do submit, your Honour, that in the present case the question of whether the commission has the requisite degree of satisfaction to make an order suspending the industrial action falls to be determined by objective considerations. That is, the evidence of Prof Pilgrim and Mr Reed regarding the adverse impact upon a significant cohort of students if the ban on transmission of results continues.
PN531
I make that submission at the outset because it comes into clear focus, this question of objective considerations, subjective considerations, when you have regard to Mr Cullinan's evidence, which was to the effect that in terms of the exemption arrangements at place at Swinburne, his evidence was that if students affected by the ban were to make an application to the exemptions committee and were to place before that committee evidence of that they were suffering stress or anxiety as a consequence of their results being withheld, his evidence was to the effect that probably in all likelihood an exemption would be granted to that student.
PN532
The position of the union is that the question of exemptions, whether or not they're to be granted to the cohort with which we're concerned in this application, falls to be determined by - - -
PN533
THE VICE PRESIDENT: And the cohort you're concerned with are the 1680 students who are enrolled in the 71 courses that are affected by the bans that are prerequisites for other courses.
PN534
MR McDONALD: Yes, that's the case.
PN535
THE VICE PRESIDENT: And the 13 per cent who historically are likely to fail.
PN536
MR McDONALD: 17 per cent, yes.
PN537
THE VICE PRESIDENT: 17 per cent, which is roughly 300.
PN538
MR McDONALD: Approximately 300. That's category 1. And I accept your Honour's observation that there can be degree of overlap here, but that's category 1. Category 2 is the 1770 students who, based on data over the past five years, would, upon the release of the results for semester 1, be identified as being at risk; that is, their results will be such that they will have failed two or more of the units of study they were undertaking in first semester.
PN539
THE VICE PRESIDENT: I want to try and deliver an extempore decision so I will stop you and ask for sources. That 1770, where does that figure come from?
PN540
MR McDONALD: I think that's in paragraph 28 of Mr Reed's - 28? Yes, 28.
PN541
THE VICE PRESIDENT: Yes, thank you.
PN542
MR McDONALD: And then the third category - and these figures are to be found in paragraph 42 of Mr Reed - the 563 students - there's an average of 563 students in the past five years - who upon the release of the results for the first semester, will fall within the show cause category; that is, they will have had two successive semesters - semester 2, 2012, semester 1 - - -
PN543
THE VICE PRESIDENT: And what's the paragraph of Mr Reed that you refer to?
PN544
MR McDONALD: 42.
PN545
THE VICE PRESIDENT: Para 42. Does that take account of the - that mathematics does take account of the roughly 83 per cent - sorry, of the proportion of students who have all of their results, or doesn't it?
PN546
MR McDONALD: That figure, the 563, will be drawn from the total number, so it will include the 78 who have got their results plus the 22 who haven't. So we are not submitting to you that 563 of the 22 per cent.
PN547
THE VICE PRESIDENT: So roughly it will be 22 per cent of the 563.
PN548
MR McDONALD: Roughly, yes.
PN549
THE VICE PRESIDENT: All other things being equal.
PN550
MR McDONALD: Yes. And ditto for the at risk. It will be roughly a fifth of the 1770 who will be identified as at risk.
PN551
THE VICE PRESIDENT: But you say in relation to the show cause and at risk that because the university, for the reasons that have been given, has elected not to go down the show cause and at risk path at this stage; in fact, the group that's affected, it's not the 22 per cent of 1770 and 563, but the whole of those groups.
PN552
MR McDONALD: I'm sorry, I didn't catch that.
PN553
THE VICE PRESIDENT: The evidence, as I understand it from the university witnesses, is that the university hasn't - - -
PN554
MR McDONALD: Has not set in train those processes yet, notwithstanding - - -
PN555
THE VICE PRESIDENT: The show cause and - - -
PN556
MR McDONALD: - - - notwithstanding that there are a body of students who have got all their results. And it was suggested that there could be a two-stage process. They could implement it stage 1 - - -
PN557
THE VICE PRESIDENT: But the upshot of that from your perspective is that it's not just 22 per cent of those two figures that are relevant for this consideration, it's the whole of the 1770 and the 563 - - -
PN558
MR McDONALD: It is.
PN559
THE VICE PRESIDENT: - - - because none of them have had the benefit of the at-risk process or the show cause process.
PN560
MR McDONALD: Precisely, your Honour. And we submit that your Honour should accept the evidence which is before you that for reasons - for considerations of equity and practicality in terms of undertaking the arrangements, undertaking that exercise, that is a legitimate position for Swinburne to have adopted.
PN561
THE VICE PRESIDENT: Subject to what Ms Richards says, I don't think it rather matters whether it's a legitimate position or not, it's the position they've adopted and that's the fact on the ground.
PN562
MR McDONALD: I agree with that.
PN563
THE VICE PRESIDENT: And the health and welfare consequences flow irrespective of the motivations or justification or sensibility of the position that has been adopted by the university.
PN564
MR McDONALD: Yes, I accept that, your Honour. That is so.
PN565
THE VICE PRESIDENT: So what are the adverse welfare consequences that you say in respect of which endangerment is threatened?
PN566
MR McDONALD: The relevant welfare consequences are in respect of category 1, that's the approximately 300 students out of the 1680 who have completed a unit which is a prerequisite for semester 2. The welfare considerations are that at some point during semester 2 it is likely, if the ban is lifted, at some point those individuals will be told that they have failed the prerequisite subject. The evidence of Prof Pilgrim is that there is a significant increase in the likelihood that a student who has enrolled in a semester 2-related subject without having completed the prerequisite successfully, significant increase in the likelihood that they will fail that subject. So that's going to create a dislocation for the individual. Basically they're being put - in the ordinary course of events those 300 students - - -
PN567
THE VICE PRESIDENT: That will sound, for those students - and it's a hypothesised class about which you can't be more precise in terms of quantification - they will suffer a loss, a waste of the course fees - - -
PN568
MR McDONALD: A waste of course fees.
PN569
THE VICE PRESIDENT: - - - and whatever interruption to career progress that they might otherwise have been able to avoid.
PN570
MR McDONALD: Yes. Dislocation to course structure. They will have embarked upon a course of study - a unit of study in semester 2 which in the ordinary course, armed with the results, they would not have done so.
PN571
THE VICE PRESIDENT: Yes.
PN572
MR McDONALD: And Prof Pilgrim deals specifically with the issue of adverse consequences for that cohort at paragraph 31. It's broken down, paragraph 31(a) through to (f), adverse consequences for those students.
PN573
THE VICE PRESIDENT: And the evidence of Mr Cullinan is that in respect of each of your - in respect of this group, that this is not a sufficient basis for an exemption alone, there would have to be something else.
PN574
MR McDONALD: Yes. As I understand his evidence, it is that these objective matters are not sufficient; what's required is subjective evidence of individual stress and anxiety.
PN575
THE VICE PRESIDENT: Yes.
PN576
MR McDONALD: And we submit that that's not the correct way of addressing the issue. The question, we submit, for the purpose of section 424(1)(c), the question of whether or not the requisite satisfaction exists, can be determined on the basis of the objective evidence; the matters to which Prof Pilgrim deposes in 31 of his statement.
PN577
THE VICE PRESIDENT: Yes. So that's category 1.
PN578
MR McDONALD: That's category 1. In relation to category 2, who are the at-risk students, we've got a total cohort of an average of 1770 students and the evidence of Mr Reed - and we will provide you with the relevant passages in his statement - it commences at paragraph 22, but in particular he gives evidence in his statement regarding the range of support services which are available; that's at paragraph 25. He refers at paragraph 29 to the academic success program workshops. Paragraph 30, the student development and counselling department. And then significantly, paragraph 33, the data in relation to the improved performance. It ranges from 8.7 per cent through to 10.4 per cent improvement in respect of the academic performance of students who have participated in those processes.
PN579
The relevant disadvantage - the prejudice to this cohort of students is that by reason of Swinburne not being able to identify these individuals until such time as we have their results, we are not going to be able to set in train these academic management processes and the students - well, they will go on as they presently are until such time as we have that information. In our written submissions the particular matters are dealt with at paragraph 9 through to 11 of our written submissions, your Honour.
PN580
In relation to the third category, the show cause category, again it's in Mr Reed's statement and it begins at paragraph 35. He sets out through to about paragraph 40 of his statement the processes which would, in the ordinary course of events, be set in train in respect of those students who, by virtue of having two successive semesters of underperformance, are subject to those show cause arrangements. Again, we're not in a position to implement those arrangements because we can't identify the individuals.
PN581
THE VICE PRESIDENT: And the adverse consequence for the students are that, the harm to their welfare.
PN582
MR McDONALD: The adverse consequence for the students, we submit, is that the show cause arrangement - we submit the evidence of Mr Reed is that it provides those - well, there are two limbs to it. In respect of that class of student who is beyond the point of redemption, so to speak, in terms of their academic performance, it basically puts them in a position where they're wasting their time, they're continuing on with a course of study where on one view of it they simply shouldn't be there.
PN583
THE VICE PRESIDENT: And will irrevocably become liable to the course fees for second semester.
PN584
MR McDONALD: There are cost consequences, there are course structure consequences. In relation to the second sub-set within the show cause, there are those students who by virtue of being part of those processes and being permitted to continue with his or her studies but subject to perhaps conditions being imposed, they're being provided with a final opportunity to redeem themselves and to get back on track. One way of putting it, your Honour, is that things presently stand these individuals that fall within the at risk and show cause categories, they're getting lost in the system.
PN585
THE VICE PRESIDENT: You say lost in the system. You say that historically the at risk and show cause responses of the university delivers certain beneficial outcomes that can be measured statistically.
PN586
MR McDONALD: Yes.
PN587
THE VICE PRESIDENT: And I can be satisfied on the balance of probabilities that if this ban remains in place the outcomes for the cohort of students will be significantly less than those - the beneficial outcomes will be significantly less than those that have occurred historically.
PN588
MR McDONALD: We do make that submission.
PN589
THE VICE PRESIDENT: I may have expressed that badly, but that's the heart of the matter.
PN590
MR McDONALD: Yes, your Honour.
PN591
THE VICE PRESIDENT: So far as that category is concerned.
PN592
MR McDONALD: Yes, your Honour. There is a final sub-set of students who are adversely affected, that is students who have failed a unit in the first semester. That is students - this is dealt with at paragraph 11 of Mr Reed - this is those students - and an example of this category of student that Mr Reed gave specific evidence about - that is a student who is set to graduate at the end of 2013 but they have - - -
PN593
THE VICE PRESIDENT: They can find themselves with their - they would be able to add just their course and would be able to finish - - -
PN594
MR McDONALD: Yes, they can load up. They can load up.
PN595
THE VICE PRESIDENT: - - - but they lose that opportunity.
PN596
MR McDONALD: They will quickly lose that opportunity to load up. So that is the fourth and final sub-set of the relevant student population that we're identifying, your Honour.
PN597
THE VICE PRESIDENT: What's the correct part of the population here? It's not students at Swinburne University.
PN598
MR McDONALD: It is students at Swinburne University who have failed a unit of study in the first semester of 2013.
PN599
THE VICE PRESIDENT: Yes.
PN600
MR McDONALD: We do make this submission in relation to the evidence before you concerning the exemption, and this is exhibit TR3, the exemption in place at Deakin University in respect of those students who were identified as being at risk: the NTEU has had has had the statement of Mr Reed since Thursday afternoon, that's 25 July, and could have led evidence regarding the circumstances in which the exemption was granted at Deakin University. It has not done so. We do submit, your Honour, that's an inference to be drawn that if the union had sought to lead such evidence, it would not have been of assistance to its case. It is important to bear - - -
PN601
THE VICE PRESIDENT: This is not a super Jones v Dunkel type of point, is it?
PN602
MR McDONALD: Beg your pardon?
PN603
THE VICE PRESIDENT: I'm just trying to think which category of authority that fits into. I
PN604
MR McDONALD: You see, your Honour - - -
PN605
THE VICE PRESIDENT: It's a sort of a quasi Jones v Dunkel point. It's the Jones v Dunkel point you have when you don't have a witness who has not been called.
PN606
MR McDONALD: They could have led evidence on that point. They haven't let any evidence. And the concession was forthcoming that - - -
PN607
THE VICE PRESIDENT: Don't you put - - -
PN608
MR McDONALD: - - - that Dr Long, the branch secretary, has the conduct of the enterprise bargaining negotiations at Deakin.
PN609
THE VICE PRESIDENT: Can be viewed this way: item 3 of TR3 contains within it the implicit acknowledgement that at Deakin University that class of students would be prejudiced in their welfare?
PN610
MR McDONALD: Yes.
PN611
THE VICE PRESIDENT: And there's no reason why that shouldn't be the case at Swinburne.
PN612
MR McDONALD: Precisely. There's only one union here, although it does seem to have a multi-faceted personality, We're only dealing with one federally-registered organisation, on legal entity, which is the NTEU. With respect, there does seem to be something of a tail wagging the dog aspect to - - -
PN613
THE VICE PRESIDENT: I have to say, I found Mr Cullinan's evidence entirely plausible.
PN614
MR McDONALD: It may be. I'm not saying it's not plausible, but in terms of the - - -
PN615
THE VICE PRESIDENT: The left hand won't always know what the right hand is doing in an organisation like this.
PN616
MR McDONALD: I accept that entirely. It's not a question of plausibility, it's a question of where the federally-registered organisation is the NTEU. That body is respondent to this application. That same body has effectively made an admission in respect of the negotiations which have been undertaken at Deakin University that a class of individual students who are front and centre in the application before you will suffer prejudice if they were not subject to an exemption and no proper explanation has been forthcoming before you to dispel the inference which is readily to be made that exactly the same prejudice will befall that class of students at Swinburne.
PN617
That's as high as I put it. I'm not attacking the plausibility of Mr Cullinan's witness evidence, his evidence in the box, but I do, with respect, submit that there's a very powerful inference to be drawn. Could have been explained away; hasn't. Finally can I make this observation regarding the evidence which is before you regarding the operations of the exemption committee at Swinburne. We extracted these figures from paragraph 18 of our friend's outline of submission. There have been 1002 applications which have been received and 319 applications for an exemption have been rejected. That, on our maths, is 32 per cent. That's a fairly high rejection rate, your Honour. One could be mistaken, from listening to Mr Cullinan's evidence - - -
PN618
THE VICE PRESIDENT: At the end of last week I was hearing the exact opposite spin being put on similar sorts of proportions.
PN619
MR McDONALD: Spin, that's very hurtful, your Honour. I'm not a spin merchant.
PN620
THE VICE PRESIDENT: There it was put that the high acceptance rate - - -
PN621
MR McDONALD: Or at least I'm sure I'm better than a spin merchant from Monash.
PN622
THE VICE PRESIDENT: The high acceptance rate demonstrated the likelihood of problems with mistake and the incidence of mistake. In any event, you say that the - - -
PN623
MR McDONALD: It's about a third are being rejected.
PN624
THE VICE PRESIDENT: Yes.
PN625
MR McDONALD: A third are being rejected and - - -
PN626
THE VICE PRESIDENT: But we know nothing about them on the basis. They might have been rejected properly - and I mean properly in inverted commas, within the scope of the criteria that the union is bringing to bear.
PN627
MR McDONALD: Yes. The stronger point, your Honour, is that the - - -
PN628
THE VICE PRESIDENT: Sorry, can I just - I'm sorry to keep cutting you off.
PN629
MR McDONALD: Yes, please.
PN630
THE VICE PRESIDENT: I take it we're all in agreement that if the effect of the ban on a given student is mere inconvenience and annoyance, then that's not enough. In fact, it's not enough for an individual; it has to be operative on a collective, on a part of the population.
PN631
MR McDONALD: Yes, I accept that.
PN632
THE VICE PRESIDENT: But if you analyse the status of individuals for the purpose of assisting the analysis in respect of the part of the population, mere annoyance and inconvenience is enough. We know that a goodly number of students will be just progressing through their course in the ordinary way. They're not graduating, they're not at any risk of failing subjects. You know, students go through exams, they've got some general sense if they've done well enough to pass and they're satisfied they've done well enough to pass, but it's an annoyance and they apply for an exemption and they get rejected.
PN633
MR McDONALD: Yes.
PN634
THE VICE PRESIDENT: But it would be a proper rejection in that; proper again in inverted commas, by reference to the NTEU criteria. I've got no basis for supposing that that 32 per cent is somehow or other populated with outrageous refusals?
PN635
MR McDONALD: We just don't know. We don't know. All we know is that the figure - - -
PN636
THE VICE PRESIDENT: Is that right? I mean, Mr Cullinan gave direct evidence about this, having participated in the process, and his evidence was that they were erring on the side of caution. But if anyone - his evidence was if anyone claimed heightened anxiety or stress they automatically got it.
PN637
MR McDONALD: Yes.
PN638
THE VICE PRESIDENT: I might say I accept that evidence without reservation.
PN639
MR McDONALD: Yes.
PN640
THE VICE PRESIDENT: Doesn't that cut across your argument?
PN641
MR McDONALD: We don't know the basis of the 319 who've been rejected. We just don't know.
PN642
THE VICE PRESIDENT: I'm just not sure I can draw any inferences at all from it.
PN643
MR McDONALD: I think that the better point, with respect, is this - or the stronger point is this, that the gravamen of our submission is that by reason of the ban which is in place on releasing results, Swinburne is not in a position to identify those who are the relevant population for the purposes of this application because the identification of those individuals is contingent upon the release of their results. So in those circumstances the exemption committee regime is really not an answer to the threat to welfare which we have identified. Going back to your - - -
PN644
THE VICE PRESIDENT: But you don't need the numbers of applications for special exemption that have been allowed or refused, don't cut across the argument you've just raised.
PN645
MR McDONALD: That's so. That's so. I make that - - -
PN646
THE VICE PRESIDENT: You say they may well have done a perfect job with the rest of their exemptions, but in relation to these three categories that you've been through, they haven't.
PN647
MR McDONALD: They haven't. They haven't because the system - the exemption committee regime - is of no assistance because it can only be of assistance when someone knows that they're being adversely affected. They'll only know that when they get their results. It's unrealistic for the union to advance a submission that a student is going to speculate as to whether or not their performance in their exams has been such as to place them within the relevant cohort. And the figures in relation to the registrations for the academic support program give force to that submission. Only four people have registered.
PN648
Mr Reed's evidence was that you would expect there to be a much, much higher number than that, given that that program runs during the period we're in now, the semester break. That's consistent with the conclusion that students who would otherwise be participating in the academic support program don’t have a perception that they are a candidate to be participating, which would equally suggest that they wouldn’t be perceiving that they are a candidate to be going to the exemptions committee. If the commission pleases.
PN649
THE VICE PRESIDENT: Thank you, Mr McDonald.
PN650
MS RICHARDS: May it please the commission. The fact that you have recently considered an almost identical issue at a different university does save some time in relation to the legal tests that apply. I gratefully adopt for the purposes of my submissions the tests that you set out starting at paragraph 21 through to 23 of your decision in the Monash University case. Those tests are in essence - - -
PN651
THE VICE PRESIDENT: If one follows what the High Court in Ashidi says, the test always remains the language of the statute.
PN652
MS RICHARDS: It does. It does. And that is the starting point. It does happen, and you see this in the reported decisions, that there's talk about a threat to the welfare. That's not the test, the test must be that the industrial action must threaten now or have threatened in the past or - - -
PN653
THE VICE PRESIDENT: Would threaten - - -
PN654
MS RICHARDS: - - - would threaten in the future - - -
PN655
THE VICE PRESIDENT: - - - to endanger.
PN656
MS RICHARDS: - - - to endanger - relevantly here - the welfare of a part of the population.
PN657
THE VICE PRESIDENT: Yes.
PN658
MS RICHARDS: And so the focus isn't on whether there's a threat to welfare, the focus is on whether the industrial action that is being engaged in at the moment - and that's where my client parts company with you on the Monash decision, as I understand it - but the industrial action that is being engaged in at the moment either poses a threat currently or has done previously in its current form, or is likely to in the future. And the threat must be to endanger the welfare. So "endanger" is a more powerful word than "threaten", and that's reflected in the decisions that are cited at paragraphs 21 through to 23 of your decision in the Monash University case.
PN659
To summarise, it's not sufficient that there be a mere adverse impact on welfare. As you've identified in the course of argument, the threat or the danger must be material or substantial, and certainly more than mere inconvenience. There is authority in the full bench in the University of South Australia case that what is required is significant harm. We do adopt that formulation.
PN660
THE VICE PRESIDENT: But the general genus of harm that can be inflicted on students as a result of a results communication ban has to be the type of harm that can fit within that descriptor because there are a whole string of cases that have issued orders on the basis of the inadequacy of exemption regimes.
PN661
MS RICHARDS: I will come to the facts of the particular case. But a general ban, yes, but in this case the ban is finely calibrated with the group of general exemptions that apply across the board and a very efficient working regime of specific exemptions, in addition to which there's advice given about how students can obtain the information that they need to make decisions directly from their lecturers. I would also like to emphasise before launching into an analysis of the evidence that the part of the population must be more than a mere collection of individuals who share some common circumstances. There is a collective aspect - - -
PN662
THE VICE PRESIDENT: Do you say that's missing here?
PN663
MS RICHARDS: My learned friend's case, it's a purely hypothetical case. There's no direct evidence of any impact on any particular student. The way he seeks to make his case is to identify groups - very small groups - within the student university population - who, assuming his hypothesis is correct, will suffer some adverse impact as a result of the bans and consequential decisions taken by his client. That, in my submission, doesn’t go so far as to establish a part of the population; it establishes a number of individuals who have some personal circumstance in common. I return to what was said by the full bench in Coal and Allied - - -
PN664
THE VICE PRESIDENT: That doesn't help, though, does it, really? Take the really clear-cut. The ambulance paramedic case is a good one. I think Kaufmann SDP dealt with one where the evidence was that the effect of the bans that the union had imposed in that case was to increase the response times of ambulances by some hours in particular places. That was going to satisfy the test. I don't think anyone would seriously doubt that.
PN665
MS RICHARDS: The part of the population in that case is clearly the residents of area X or area Y.
PN666
THE VICE PRESIDENT: Who happen to share the characteristics that the ambulances don't get to them that day quickly, because that's where - - -
PN667
MS RICHARDS: Because of their geographical location.
PN668
THE VICE PRESIDENT: Because of their geographical location. But only a tiny minority if the population is exposed to risk - sorry, is exposed to - we can start playing with language here.
PN669
MS RICHARDS: We always want the ambulance to be able to get to us as soon as possible.
PN670
THE VICE PRESIDENT: Exactly. And every student would want to be able to be saved from academic catastrophe if they find themselves in it.
PN671
MS RICHARDS: But that's not the way this case is put. This case is put that there are three or four sub-sets of students who have failed a subject in semester 1 who are affected, and you're asked to make the leap that those students are a relevant part of a population in a collective sense.
PN672
THE VICE PRESIDENT: So you are saying they're not a part of the population.
PN673
MS RICHARDS: And my submission is that it's not a sufficiently collective criterion to identify a part of the population. But even if it is, the evidence fails to establish the relevant degree of danger on any of the bases that it's put.
PN674
THE VICE PRESIDENT: Yes.
PN675
MS RICHARDS: I also adopt with gratitude the analysis at paragraphs 35 through to 38 and 50 of your decision in the Monash University case to the effect that the protected industrial action in question there, and also here, is not simply the ban on releasing results, it incorporates the exemptions regime. And here, as in that case, there's cogent evidence of a considered regime of general exemptions that the Swinburne branch have applied, and of a very well-oiled exemptions committee - well-oiled, I say in the sense that it's working like a machine - that is dealing with exemption applications efficiently and with consideration and is communicating the outcomes of those decisions very clearly.
PN676
There's no issue, as I take it, on the evidence, that any of the exemption applications that have been decided are wrong or have in some way created or ignored an obvious danger to an individual student's welfare; not that that's the test. But there's no issue taken with the workings of the exemption committee.
PN677
THE VICE PRESIDENT: That's just wrong, with respect. There is large exception taken to it, and it's taken to it in respect of categories 1, 2, 3 and 4 because they're not provided for in general exemption - - -
PN678
MS RICHARDS: There's an issue that the exemption committee has not granted a general exemption in relation to those four categories, but I think - - -
PN679
THE VICE PRESIDENT: Which are really sub-categories of the category of students who have in fact failed but are yet to receive their mark.
PN680
MS RICHARDS: Yes.
PN681
THE VICE PRESIDENT: One can't even say that, "in fact failed", because until the moderation exercise occurs you don't necessarily know whether a student with a raw mark less than 50 is going to fail, because they may get moderated up.
PN682
MS RICHARDS: No, you know in 98 to 99 per cent of cases.
PN683
THE VICE PRESIDENT: Yes.
PN684
MS RICHARDS: And you also know that marks are far more likely to be moderated up than down at that point. So as a base line before I begin to address the four categories of students who have failed a subject in semester 1, it is the NTEU's submission that in this case, as in the Monash case, the commission can find that the NTEU, through the minds of those directing the campaign of protected industrial action, has been endeavouring to implement a campaign or an exemptions regime, including both general and specific exemptions, that would negate threats that endanger student health and welfare. That is the way in which Mr Cullinan described the exemptions committee approaching its task and so that is part and parcel of the industrial action that's being taken.
PN685
THE VICE PRESIDENT: Again, I think you're pushing against an open door, aren't you, that Mr McDonald and Mr McKenny have refined the case in a very - have honed it in a very precise way. They say, "We don't worry about all of that. We accept that might all be working fine, but in relation to this group here, it's not.
PN686
MS RICHARDS: I go now to deal with that. So we have the three and we have a fourth, which is really a sub-set of the first. Students who have failed prerequisite subjects, is the first category. I preface this discussion of the evidence by noting that all of the evidence is hypothetical. There's no evidence of a single student in any of these categories - no direct evidence - it's just completely absent from the case. It's all hypothetical speculation: if you apply this percentage to this number you will get this many. There's no direct evidence of what has actually been happening to real students who are affected by these bans.
PN687
We're told by Mr Reed that there are 1638 students with a withheld result in a subject that is a prerequisite for a semester 2 subject and he also tells us that all of those students are enrolled to proceed to the semester 2 subject.
PN688
THE VICE PRESIDENT: That figure is not speculative, that's a - - -
PN689
MS RICHARDS: No, that's not speculative. We're asked to - - -
PN690
THE VICE PRESIDENT: But the 17 per cent failure rate is based upon the historical average.
PN691
MS RICHARDS: Yes. We're asked to apply that 17 per cent failure rate, so there's your first hypothetical. We know certainly in the faculty of life and social sciences that a large cohort of students who had failed statistics have had their results released. Mr Cullinan made the point that that should result in the group of students who have had their results withheld are more likely to be skewed towards students who've passed rather than students who failed. In any event, applying the 17 per cent rate that we're asked to apply, that leaves us with 278 students who share a common characteristic of having failed a prerequisite subject.
PN692
We're told that they can be disadvantaged in two ways; one is not being able to immediately repeat the subject, and the other is that they will proceed with the sequential subject without having the building blocks to complete it successfully. We just don't know whether the first - - -
PN693
THE VICE PRESIDENT: Leading to wasted money and dislocation or disruption of course/career progression. "If I'd known, I wouldn't have done that subject; I would have done this other subject. I would have finished my degree sooner. I wouldn't have spent the money on that course," et cetera.
PN694
MS RICHARDS: A degree of dislocation is a consequence. The wasting the money is not yet a consequence. There's a university-imposed deadline, as I understood the evidence, of 6 September, beyond which students forfeit or are required to pay; can't withdraw without penalty.
PN695
THE VICE PRESIDENT: Yes.
PN696
MS RICHARDS: And the evidence was unclear about the extent to which that's a flexible deadline. In relation to the first category of disadvantage, we just don't know how many of those students could immediately repeat the subject because there's no information, no evidence before the commission about whether the prerequisite subject will be offered again in semester 2. We also know that of these 278 students, many, if not most, will have the results of progressive assessment that they completed before the bans were imposed, as does the university. Those students will have an idea - although not a final idea, but they will have an idea - about their progress and about whether they were looking at a pass or a fail.
PN697
So it's not simply a question of self-perception of how you did on the final exam; students in many, if not most, subjects undertake progressive assessment and by the time they face up to their final exam have a very good understanding in general terms of what their progress is and how they're looking. Mr Cullinan outlined in his evidence - and he was questioned about this in cross-examination - the arrangements that are in place for a student who is concerned to know whether they have passed or failed in order to make the decisions they need to make about what they do next semester.
PN698
They can apply for an exemption. Mr Cullinan said an exemption wouldn't be granted on those grounds alone, just wanting to know if they'd passed a prerequisite, but each application is considered on its merits and where there was evidence that not knowing would endanger or cause harm to a student's welfare, then the committee, as he explained it, was leaning towards granting an exemption. So that's an avenue that's available. It remains available. There's no direct evidence that it hasn't worked in an individual case.
PN699
As well as that, or as an alternative to applying for an exemption a student can approach a lecturer for verbal advice as to whether the student has passed or failed. The NTEU has advised members that they can provide that information to students and Prof Pilgrim agreed with me that advice that's given about a result that the lecturer is recommending will match the final results in 98 to 99 per cent of cases. So it's perfectly possible for a student whose progressive assessment has indicated that they might be borderline to approach a lecturer and ask for an indication of whether they've passed or failed and make their course decisions on that basis.
PN700
THE VICE PRESIDENT: And on the one real life example that we've got, the lecturer refused.
PN701
MS RICHARDS: No. That was not that case.
PN702
THE VICE PRESIDENT: Sorry, the one - I just have the one specific example and the lecturer refused.
PN703
MS RICHARDS: The one specific example that we had, the student was not in that situation. The student didn't need to know if they'd passed a prerequisite. They were going to a job interview - - -
PN704
THE VICE PRESIDENT: The student wanted to know their mark - - -
PN705
MS RICHARDS: Yes, they were going to a job interview - - -
PN706
THE VICE PRESIDENT: - - - and the lecturer was not prepared to disclose it.
PN707
MS RICHARDS: - - - and the requirement, as Mr Reed explained it, was that they had been asked to bring complete results, which they did.
PN708
THE VICE PRESIDENT: Yes.
PN709
MS RICHARDS: They had a note from the lecturer explaining the circumstances in which their semester 1 result had not been released. We were not told any more about the fate of that student.
PN710
THE VICE PRESIDENT: I'm not suggesting that. That one swallow certainly does not make any spring here.
PN711
MS RICHARDS: But that student doesn’t actually fit in any of the categories on which Swinburne relies. The one piece of anecdotal evidence that the university has been able to point to is not actually relevant to its case. So there is a mechanism in place. There are two mechanisms in place to enable students who need that information, to obtain it and make decisions for themselves. The ban is directed at the university, denying the university that information; it's not directed at denying students that information if they need it.
PN712
THE VICE PRESIDENT: I'm sorry, Ms Richards, you will need to persuade me. If I'm to find that the exemptions regime is set up in such a way that if students ask to know whether they've passed or failed, that they will be told. You will need to take me to the evidence. I thought there was a significant measure of discretion left to the lecturer, that the lecturer was encouraged to informally advise students of their result, not just whether they had passed or failed, but they had to exercise particular caution if the student had failed. That's the extent of the evidence on what the lecturers had been told.
PN713
MS RICHARDS: Yes. And that's the extent of the evidence. There's no evidence from the employer, who bears the onus, that that mechanism is not working. There is a mechanism. It is possible for students to get the information that they need. And there's no evidence that students aren't availing themselves of that mechanism.
PN714
THE VICE PRESIDENT: Why aren't the four enrolments in the ASP really quite cogent evidence?
PN715
MS RICHARDS: I'll come to that.
PN716
THE VICE PRESIDENT: I appreciate that it depends upon statistics and drawing inferences based upon probabilities from past statistics, but that's a perfectly legitimate way of analysing - - -
PN717
MS RICHARDS: Yes. And we respond to a case built on statistics and hypotheses by saying, "We have a mechanism in place to deal with that eventuality and there is no evidence that that mechanism - - - "
PN718
THE VICE PRESIDENT: But if the mechanism was being utilised and was working then there ought to be a lot more than four students enrolled on the APS.
PN719
MS RICHARDS: Which brings me to the next category of students, the at-risk students, because it's these students who are directed or are encouraged to attend the academic success program. First let me deal with the size of this group. There are, we are told, some 1770 students on average each semester who are identified as being at risk. My learned friend urges you to take that whole group as being affected by the bans; our submission is that - - -
PN720
THE VICE PRESIDENT: It's got to be 22 per cent of that group.
PN721
MS RICHARDS: - - - it's only 22 per cent at the most, because there are 78 per cent of students who have all of their results; the university knows their results; the university can identify them as being at risk; and it is not as a risk of the industrial action - - -
PN722
THE VICE PRESIDENT: Sorry, did you say the university has all their results?
PN723
MS RICHARDS: The university has all of the results for 78 per cent of the students.
PN724
THE VICE PRESIDENT: I understand that, yes. And they've chosen not to - - -
PN725
MS RICHARDS: Yes.
PN726
THE VICE PRESIDENT: - - - carry out the at-risk process.
PN727
MS RICHARDS: Yes. And Mr Reed agreed with me that that was not because of the industrial - there was no industrial action in place that was preventing them from offering the at-risk program or running the at-risk program for the 78 per cent of students whose results the university has. The university has chosen not to do that principally, as the evidence emerges, because of the administrative inconvenience of running the at-risk program twice - - -
PN728
THE VICE PRESIDENT: Yes.
PN729
MS RICHARDS: - - - once now and once for the remaining 22 per cent once they get their results. It was also put that it was on equity grounds. That is a characterisation that the commission should reject. It is an extraordinary submission to say that the university should withhold a welfare measure from students it can identify as needing that measure because it can't identify other students who need that measure.
PN730
THE VICE PRESIDENT: Why is this any different from the situation in the University of South Australia case where O'Callaghan SDP identified that the university didn't bother engaging with the exemptions regime and consequently it was ineffective? The fact that the university's conduct rendered the exemptions regime ineffective was beside the point and the full bench upheld his decision. In other words, I infer that you're really going to a causal argument here.
PN731
MS RICHARDS: Yes.
PN732
THE VICE PRESIDENT: You say that to the extent that 78 per cent of the 1770 are not identified at risk has got nothing to do with the industrial action and everything to do with the decision of the university not to conduct its process at this point, therefore - - -
PN733
MS RICHARDS: Yes, for its own administrative convenience.
PN734
THE VICE PRESIDENT: Therefore it's not caused or it's not threatened by the protected industrial action; that the postulated harm to welfare is not threatened by the protected industrial action, you say, in that context.
PN735
MS RICHARDS: Yes. And the distinction between this and the University of South Australia case is that unless an exemption was granted, then the results were withheld. And so in that case the industrial action had the result that results were withheld and exemptions weren't actively encouraged by the university. So the university didn't have the results. In this case the university does have the results for 78 per cent of its students and it has chosen for administrative convenience not to run its at-risk program until it has all of the results.
PN736
THE VICE PRESIDENT: Because the industrial action has the impacts that it does so far as the university is concerned. In other words, the reason the university has adopted that position is because they don't want to do it twice, and that's because the results ban is in place. That's not a sufficient causal linkage, you would say?
PN737
MS RICHARDS: No.
PN738
THE VICE PRESIDENT: Okay.
PN739
MS RICHARDS: Yes, another way of putting the distinction between the University of South Australia case and the current one is that University of South Australia just ran dead on the exemptions issue. They didn't engage with it, with the result that the ban had much wider effect than it might otherwise have done.
PN740
THE VICE PRESIDENT: With a great paradoxical effect, if you are a less caring employer - - -
PN741
MS RICHARDS: Here the university is - - -
PN742
THE VICE PRESIDENT: - - - you've got a better prospect of defeating the action.
PN743
MS RICHARDS: - - - is actively imposing this consequence on 78 per cent of unaffected students. It's the result of a decision taken by the university not to run the at-risk program that means that those 78 per cent of at-risk students are not receiving the support that the university says it's essential that they receive. Looked at in that light, it sucks all of the force from the university's argument that the other 22 per cent of students are in a position where their welfare is endangered by not being identified as at risk. That is a situation that the university is prepared to tolerate in relation to 78 per cent of students who it can identify as at risk but it has chosen not to. The university is quite able to tolerate a situation where - - -
PN744
THE VICE PRESIDENT: What's the consequence of that so far as the statutory test is concerned?
PN745
MS RICHARDS: That you ought not to be persuaded that the welfare of the students is endangered. It's within power - - -
PN746
THE VICE PRESIDENT: Because the university is happy to see - - -
PN747
MS RICHARDS: Yes.
PN748
THE VICE PRESIDENT: - - - the welfare of 78 per cent endangered.
PN749
MS RICHARDS: Yes.
PN750
THE VICE PRESIDENT: Therefore the 22 per cent aren't.
PN751
MS RICHARDS: That is a situation that's quite tolerable to the university. It's quite prepared to not run its at-risk program even though 78 per cent of at-risk students are easily able to be identified. And yet it comes here today and urges you to find that in respect of the other 22 per cent, at least, their welfare is imperilled by the imposition of the ban and the withholding of their results. And in my submission what is intolerable to the university is in fact the administrative inconvenience of having to run the at-risk program twice. The low number of registrations in the academic success program is clearly an issue of concern to the commission. What the commission doesn't have is any information about the number of registrations at the equivalent point last year. We are still - - -
PN752
THE VICE PRESIDENT: Except that Mr Reed says it would have been much higher.
PN753
MS RICHARDS: He didn't know. It's clear from his evidence he didn't know. He speculated that it would be much higher but there's no evidence as to what the registrations were two weeks before the commencement of semester 2 in 2012. What Mr Reed does do in his statement is to outline the process by which - - -
PN754
THE VICE PRESIDENT: In respect of a program that's run during the break.
PN755
MS RICHARDS: No. No, your Honour. Your Honour, paragraph 24 and 25 of Mr Reed's statement outlines the process that is worked through with at-risk students. So the identification of at-risk students - I'm looking at page 6 of his statement, paragraph 24 at the top. The identification of at-risk students happens at the same time that results are released and they're sent a letter along with their results informing them that they're a risk, and then they're required to attend an at-risk session that's held in the second or third week of semester, so that's in a month's time from now.
PN756
It's at that point that the consequences of continued failure are outlined to them; they're given a nominated adviser; and they're referred to a range of support services which includes the academic success program. It's at that point that you would expect registrations in the academic success program, which are roughly a quarter of the at-risk population, to really take off. So in my submission there's no adverse conclusion that can be drawn from the fact that there are a low number of registrations two weeks before the commencement of term in circumstances where the university has decided at the moment not to run the at-risk program at all.
PN757
That then brings me to the third category of students, the show cause students. Again I make the same submission about the size of this group. It's not 583 students - - -
PN758
THE VICE PRESIDENT: It's 22 per cent.
PN759
MS RICHARDS: - - - it's 22 per cent, which brings me to 128 students. And of those, a proportion will already have enough of their results to make it clear whether they fit the show cause criteria or not. Most students who have had results withheld only have the results in one subject withheld. As the evidence is outlined in Mr Reed's statement, the students in this category would ordinarily be required to show cause, the endpoint of which may well be exclusion from the university. It's at this point where the hypothetical nature of the case becomes very, very apparent. It's put that it is in the best interests of students - this is the way Prof Pilgrim described it - to be excluded from the university if their academic progress is unsatisfactory.
PN760
The students concerned are quite possible - quite likely to have a very different assessment of where their best interests lie. A student who is asked to show cause as to why they may not be excluded has two choices: one is to accept that judgement and go off and do something else with their life, at least for a while; and the other is to contest that and to attempt to show cause. Prof Pilgrim agreed with me that students regularly do that and seek to remain enrolled at a university where their past academic progress has been less than satisfactory. So it simply does not follow that a requirement to show cause and an inability because of delayed results to run the full show cause process is going to be adverse to the welfare of any student, let alone a part of the student population.
PN761
As I understood Prof Pilgrim's evidence, the net effect of continuing the bans past Thursday - Thursday this week, 1 August - would be that fewer students would be excluded in this semester than would ordinarily be the case, and that those students who contest the show cause procedure simply by making a submission will not be excluded. So any student who is sufficiently motivated to wish to remain at the university and make a submission as to why they should not be excluded - - -
PN762
THE VICE PRESIDENT: I understand you would say that that just can't possibly rise to the level of the significant threat that's required.
PN763
MS RICHARDS: Yes. In relation to this group of students the net effect of the ban appears to be that fewer students will be excluded and there's no evidence as to what those students may or may not think, but it is highly likely that those students who wish not to be excluded would consider it to be in their welfare - - -
PN764
THE VICE PRESIDENT: I think it was put this way, wasn't it, that the students will be wasting time and money and that adversely affects their welfare.
PN765
MS RICHARDS: In my submission, your Honour, the student is the best judge of that rather than the university. Indeed you could say that in relation to this category of students, the effect of the ban has been to enhance their welfare rather than to endanger it because it lessens the likelihood of there being excluded during the course of semester 2.
PN766
THE VICE PRESIDENT: Yes.
PN767
MS RICHARDS: There was a fourth category of students who were identified in the course of Mr McDonald's submissions, which are students who have failed a subject and would lose the opportunity to load up or to overload and to complete that subject in semester 2. That covers some ground that has already been covered in relation to students who have failed a prerequisite and who need to complete that prerequisite to complete their course of study. It also is a hypothetical based on the availability of the subject in semester 2. It's completely unknown whether students in this category will have the opportunity to complete the subject in semester 2. They may, they may not.
PN768
It is also highly questionable whether a student who has failed a subject and to that degree is struggling academically, would benefit from being encouraged to overload in semester 2. The final matter I would like to address is the use to which my learned friend attempts to put the fact that the Deakin University branch granted an exemption, "To those who have been identified as at risk in another trimester and/or a warning or restriction from an academic progress committee." My learned friend put to you that you should draw a Jones v Dunkel inference from the union's failure to explain why the Deakin University branch considered this to be an appropriate general exemption.
PN769
THE VICE PRESIDENT: I think I was the one that mentioned Jones v Dunkel. I don't think Mr McDonald put it that way.
PN770
MS RICHARDS: Well, it was put in Jones v Dunkel language that you should draw - - -
PN771
THE VICE PRESIDENT: It's an implied admission by the NTEU that such a ban in a university context has an adverse effect on welfare. I think that's the way it's put, implied admission.
PN772
MS RICHARDS: That's one of many inferences that might be drawn; the others are that the Deakin University branch judged in the context of the enterprise bargaining that was taking place at that institution, the industrial strength that has amongst its members, the local policies and procedures, that that was an appropriate place to draw the line in terms of maintaining the bans while allowing a certain number of results through. There's no implied admission in there about any judgement about the welfare of the student population that we're dealing with here at Swinburne University.
PN773
All there is is a judgement made by the Deakin branch that that general exemption was appropriate in the circumstances pertaining in that particular bargaining context. It's not industry bargaining we're dealing with - - -
PN774
THE VICE PRESIDENT: Yes. No, I understand that, but given the purpose of the bans and this being the most - the evidence I have, this is the most effective ban union can bring against a university - that the purpose of these exemptions is to exclude effects that might otherwise put the protected industrial action at risk of precisely this sort of application.
PN775
MS RICHARDS: Mr Cullinan's evidence - - -
PN776
THE VICE PRESIDENT: That can be the only rational purpose.
PN777
MS RICHARDS: Mr Cullinan's evidence was to the effect that there are some general exemptions that applied union-wide. This is not one of them. This is one that was granted locally. The ones that are applied union-wide are, as I understood Mr Cullinan's evidence, on the basis of legal advice, that that's what's necessary to maintain the lawfulness of the protected industrial action and not to step over the threshold into endangering health or welfare.
PN778
THE VICE PRESIDENT: Yes.
PN779
MS RICHARDS: Your Honour, unless there's anything further, those are the submissions.
PN780
THE VICE PRESIDENT: Thank you, Ms Richards. Mr McDonald.
PN781
MR McDONALD: I've just got a few very brief points, your Honour. Firstly as to the issue of the advice from the NTEU to its members at Swinburne, the relevant document is attachment 31 to Mr Cullinan's statement. On the question of advice to students who have failed, it's very guarded, this advice, so it's under the item number 8 on the second page in the second paragraph, "Some students will be anxious about their results - - - "
PN782
THE VICE PRESIDENT: Yes, I'm familiar with that, Mr McDonald.
PN783
MR McDONALD: Yes.
PN784
THE VICE PRESIDENT: In fact, I had that very passage in mind when I - - -
PN785
MR McDONALD: Yes, thank you. I just wanted to draw that to your attention. As to Ms Richards' submissions regarding the failure to run the at-risk programs in respect of those students who have their results; with respect, her submission does beg the question regarding the position of the 22 per cent who do not have their results. There is almost a flavour about some of the submissions that have been put to you today that you should just simply assume that at some point in the ensuing weeks or months the bans which are in place at the moment will be lifted. There, with respect, is not a shred of evidence before you from which you could draw any such inference.
PN786
THE VICE PRESIDENT: I thought you made exactly the same factual submission, that at some point these bands would go.
PN787
MR McDONALD: I made a submission, "At some point if they do go, that will be the position," but the obvious submission, with respect, there is nothing before you which allows you to make any firm finding as to when and if the bans may be lifted. With respect, the position is simply this: presently the union is engaging in protected industrial action in support of negotiations for an enterprise bargaining agreement. The evidence before you is that those negotiations have not progressed very far. In those circumstances the inference, if one is to be drawn, is that the absence of the industrial action being suspended, it will simply continue. The submission that we make is that - - -
PN788
THE VICE PRESIDENT: You don't even need to go that far.
PN789
MR McDONALD: No.
PN790
THE VICE PRESIDENT: You say, "So what? If it runs the at-risk program in respect of the 78 per cent - - - "
PN791
MR McDONALD: So what?
PN792
THE VICE PRESIDENT: " - - - the 22 per cent still don't have the benefit of it."
PN793
MR McDONALD: Thank you. It is a "so what" submission.
PN794
THE VICE PRESIDENT: And you're not relying upon 78 per cent, you're - - -
PN795
MR McDONALD: We don't stand or fall on the 78 per cent at all. It would be a different matter if my friend was submitting to you, "Oh, you should draw an inference in two weeks' time these bans are going to be lifted." There's no basis at all for that. It is, with respect, "so what".
PN796
THE VICE PRESIDENT: Mr McKenny wants you to look at something.
PN797
MR McDONALD: Yes, my friend has just drawn me to paragraph 2 of the union's submissions, "The negotiations are proceeding very slowly." My friend made a submission in relation to - you raised with Ms Richards the position in relation to the academic support program and my friend's submission is, "Oh well, that figure of 500, there's no comparator that that." In fact, if one looks at paragraph 31 of Mr Reed's statement, the evidence is drawn on the position from previous semesters. He says, "Approximately 500 students in each semester complete the ASP." So that figure of 500 is based on past history.
PN798
THE VICE PRESIDENT: Yes, but I think Ms Richards makes the point, doesn't she, that the semester hasn't yet begun.
PN799
MR McDONALD: Yes.
PN800
THE VICE PRESIDENT: And whilst there may only be four at the time this statement was prepared, which is the 25th, isn't it?
PN801
MR McDONALD: Yes.
PN802
THE VICE PRESIDENT By the time you get to 12 August there may be hundreds. If you wanted to compare apples with apples you would need to know historically the proportion of applications that had been received by this equivalent point in previous years.
PN803
MR McDONALD: My recollection is that Mr Reed gave unchallenged evidence - - -
PN804
THE VICE PRESIDENT: My recollection is he gave evidence that he expected to have - - -
PN805
MR McDONALD: That at this point in time he would have expected a much, much larger figure, and that evidence was unchallenged. And again, with respect, in the absence of the results being released, why would one have any expectation that the numbers are going to increase? The students don't know that they are potential participants in the academic support program because they don't know that they failed their units, they don't know that they're designated as at-risk students, so the overwhelming inference is the numbers are going to stay the same. People aren't armed with the information they would need to consider themselves a candidate to enrol in that program.
PN806
And the same submission is made in respect to my friend's submission regarding the position of students who were scheduled to graduate at the end of this year. Ms Richards made a submission, "Oh well, they may or may not have the opportunity to load up in semester 2." But with respect, if they don't know that they've failed then the question simply doesn't arise. If they don't know they've failed the unit in the first semester they're completely in the dark as to whether or not they need to load up in the second semester in order to finish their degree this year. They need their results to make that decision.
PN807
So with respect, we finish where we started; that is that in the absence of the results being transmitted to these individuals, neither they nor Swinburne are in a position to take the steps which can be taken or could be taken to ameliorate the various categories of adverse consequences which flow from the current state of play. If the tribunal pleases.
PN808
THE VICE PRESIDENT: I'm going to adjourn for about 25 minutes. I'll come back at a quarter to 4 and deliver and ex tempore decision.
<SHORT ADJOURNMENT [3.22PM]
<RESUMED [3.45PM]
PN809
THE VICE PRESIDENT: This is an application by Swinburne University for an order pursuant to section 424 of the Fair Work Act (2009) to suspended protected industrial action for a proposed enterprise agreement being engaged in by the NTEU and its members at Swinburne. This application turns on whether the requirements in section 424 (1)(c) of the Act is met, namely whether the protected industrial action in the form of a result ban, the details of which I will not set out and which are recorded in the submissions and in the evidence, has threatened, is threatening, or would threaten to endanger the welfare of a part of the population.
PN810
I discussed the relevant principles governing this application in Monash University v the National Tertiary Education Industry Union (2013) FWC 5124, a decision issued on 28 July, and I do not propose to repeat that analysis here but propose to apply it. This case, of course, although it involves a result ban broadly similar to that which was at issue in the Monash University case, is a case with different facts and different evidence. I was particularly impressed with the evidence of Mr Cullinan, the NTEU industrial officer who has had principal responsibility for the industrial action being taken at Swinburne, and accept that the goal of the NTEU has been to establish an exemptions regime which as part and parcel of the protected industrial action would ameliorate relevant threats to the life, personal safety, health or welfare of the students of the university.
PN811
In the Monash University case there was a general exemption in respect of students who received fail marks in the range 45 to 49; in this case there is no general exemption in relation to students who have received a fail mark and it is not clear on the evidence that a concern about having failed a course would satisfy the criteria actually being used to determine specific exemptions. In relation to the first of four categories of effect relied upon by the university, namely the impact of as yet unreleased fail marks on students in subjects that were a prerequisite for semester 2 for such students, it is clear from the evidence of Mr Cullinan that the fact that a subject studied by a student in semester 1 was a pre-requisite to a subject that the student proposed to study in semester 2 is not a sufficient basis alone to gain a specific exemption.
PN812
I turn to the four categories upon which the university relies. The first category relates to 1638 students who have undertaken one or more of 71 courses which are prerequisites for a semester 2 course and whose results have not been released. Based on statistics for previous years it is likely that about 17 per cent of that number - that is, about 300 students - have failed the course. The university points to two adverse consequences to the welfare of those students as a result of the continuing ban; the first is the dislocation in course and career progress, and the second relates to the wasting of fees in respect of semester 2 courses where the pre-requisite has not been satisfied but the date for withdrawal without financial penalty has passed.
PN813
The second category relates to some 1770-odd students, based on a historical average, who would likely be identified as "at risk" upon release of their results. That number is not in the order of 1770, but roughly 22 per cent of that number. I accept that so far as the remaining 78 per cent is concerned, the causal argument advanced by Ms Richards is operative, but I note that the university places no reliance on that 78 per cent, but rather on the 22 per cent of the 1770 that the historical figure suggests will be identified as being at risk because the 78 per cent that I have referred to will already have all of their marks, and to the extent that those students would be identified as at risk but have not yet been identified as at risk, that is because the university has chosen not to separate the processes that it applies to students identified as at risk into two stages and is awaiting the outcome of this application before it determines its next step.
PN814
The third category, students who, upon the release of their semester 1 results, as yet unreleased, will fall within the "show cause" criterion applied by the university. Based on the historical figures, a number of students in the order of 563 are likely to fall into this category, but once again it is only those students whose fail marks have not yet been released that might be causally attributed to the protected industrial action; that is a number in the order of 128.
PN815
The fourth category relied upon by Swinburne are students set to graduate in 2013 - that is, at the end of 2013 - who fail a subject in semester 1 but who do not yet know that and are deprived of the opportunity of taking an increased load and whose graduation may therefore be delayed as a result of the non-release of their marks.
PN816
The power conferred by section 424 is concerned with effects on the population or a part of it. The full bench in the University of South Australia case emphasised that the remedy is concerned with effects on the collective rather than individuals, and I note that section 426 provides a specific remedy in respect of individual third parties who are suffering harm as a result of protected industrial action.
PN817
There is a difficult issue, not yet finally resolved in the authorities, as to what precisely constitutes a collective that may properly be described as "a part of the population". The relevant group affected by the protected industrial action in terms of the case advanced by the University is not the whole student body, some 30,000 students; nor is it the totality of the students who have not received their marks, some 22 per cent of that 30,000; but rather it is students that fall into the four categories that I have described. With some misgivings I am satisfied that students at Swinburne University who have not received all of their semester 1 marks and fall into the four categories are part of the population.
PN818
The issue then becomes whether the effects that I have described can properly be characterised as endangering the welfare of the relevant students. And again with some misgivings I find that the action does endanger the welfare of students in the manner articulated by Mr McDonald SC for the university. The group in category 1 in particular could find the time that it takes for them to complete their degrees extended at significant cost and could suffer significant problems in relation to a completion of their course in the way that is most advantageous to them. It seems to me that these are not matters that could be regarded as insignificant or immaterial, and yet my misgiving is founded in the observation that standing back from all of this, the magnitude of harm that applies to the group as a whole is not so obviously serious as it is in many cases in which orders under section 424 and its predecessors have been made.
PN819
This decision fundamentally turns on the absence of a general category of exemption in respect of students who have failed who are studying courses in semester 2 for which their semester 1 courses were prerequisites and the students in category 2 who would be identified as at risk upon the release of results. In relation to that group I note that the university conducts an academic success program, and I refer to paragraphs 22 and following, especially at paragraphs 31 and 33 of the statement of Mr Reed in that regard.
PN820
The evidence is open to criticism as to its strength, but at the end of the day I am persuaded by Mr Reed's evidence that there is a proper basis to suppose that the participation in the ASP would likely have been substantially higher than it has been this year, had there been no results ban, and that the ASP delivers material benefits to students, indicated by the improved outcomes referred to by Mr Reed that those students are deprived of as a result of the ongoing ban.
PN821
Prof McCallum has identified or described the Fair Work Act as "Work Choices Lite", and that description is particularly apt in relation to Part 3-3 of the Fair Work Act, which is for practical purposes a re-enactment of the industrial action regime contained in the Work Choices version of the Workplace Relations Act (1996). True it is the concept of bargaining periods has been removed, but the substantive rights and remedies remain and are expressed in relevantly identical terms.
PN822
Relevantly for present purposes there is no discretion in section 424 if the opinion referred to in section 424(1)(c) is formed on the evidence in respect of protected industrial action as being engaged in, the commission must make an order suspending or terminating the protected industrial action. A suspension or termination of the protected industrial action will have a significant adverse effect on the NTEU and its members and for practical purposes deprive it of the most effective arrow in its quiver in terms of action that it can take that applies effective pressure to Swinburne University in the protracted enterprise bargaining in this case.
PN823
If I had a discretion I would suspend the action only in so far as it related to the results ban and only in so far as it related to the categories of student identified by Mr McDonald, but I have no such discretion and I must make an order suspending the protected industrial action being taken in the matter, and that is all action. Given that all action is affected by the order, I do not think the period of suspension should be for a lengthy period, it should be for a period that is only so long as is necessary to ensure that the university has an opportunity to direct staff who have been taking the action to notify the results. It seems to me that a week would be a sufficient period for that to occur. Accordingly I propose to make an order in the form provided by Mr McDonald, but only suspending the action for a week.
PN824
Like the Monash University case, I have found this to be a difficult case and one that is on the borderline. Because of the uncertainty attending the notion of what constitutes the population or a part of it, and I think also continuing uncertainty around precisely the quality of threat of endangerment to welfare that is captured by the language of section 424(1)(c), it seems to me that this case also is a case where permission to appeal may well commend itself to an appeal bench.
PN825
Ms Richards for the union has advanced a number of arguments that are not without some attraction in relation to several of the categories identified by Mr McDonald, but at the end of the day I am not persuaded that the case advanced by Swinburne is sufficiently speculative, but rather I am satisfied that the sort of harm that I have identified is harm in respect of which there is threatened endangerment.
PN826
Those are the reasons for my decision. Is there anything that you need to raise, Mr McDonald?
PN827
MR McDONALD: No, thank you, your Honour..
PN828
THE VICE PRESIDENT: Ms Richards?
PN829
MS RICHARDS: Nothing from me, your Honour..
PN830
THE VICE PRESIDENT: Ms Richards, if I could grant a stay immediately, I would, but I have no power to do that.
PN831
MR McDONALD: Could I just inquire the actual time frame from when that order - - -
PN832
THE VICE PRESIDENT: The order will issue forthwith and it will last until the close of business on the 23rd, say 5 pm on the 23rd of - I'm sorry, please pardon me for a moment - the 7th.
PN833
MR McDONALD: 7th? Thank you.
PN834
THE VICE PRESIDENT: The Wednesday. Today is Tuesday; the Wednesday. The tribunal is now adjourned.
<ADJOURNED INDEFINITELY [4.12PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #S1 WITNESS STATEMENT OF CHRISTOPHER JOHN PILGRIM PN11
EXHIBIT #S2 WITNESS STATEMENT OF ANTHONY HUME REED PN12
CHRISTOPHER JOHN PILGRIM, CALLED PN67
CHRISTOPHER JOHN PILGRIM, SWORN PN70
EXAMINATION-IN-CHIEF BY MR MCDONALD PN73
CROSS-EXAMINATION BY MS RICHARDS PN79
RE-EXAMINATION BY MR MCDONALD PN162
THE WITNESS WITHDREW PN166
ANTHONY HUME REED, CALLED PN167
ANTHONY HUME REED, SWORN PN168
EXAMINATION-IN-CHIEF BY MR MCDONALD PN168
CROSS-EXAMINATION BY MS RICHARDS PN186
RE-EXAMINATION BY MR MCDONALD PN295
FURTHER CROSS-EXAMINATION BY MS RICHARDS PN305
THE WITNESS WITHDREW PN337
JOSHUA JAMES CULLINAN, CALLED PN354
EXHIBIT #N1 WITNESS STATEMENT OF JOSHUA JAMES CULLINAN PN359
JOSHUA JAMES CULLINAN, SWORN PN360
EXAMINATION-IN-CHIEF BY MS RICHARDS PN360
CROSS-EXAMINATION BY MR MCDONALD PN369
RE-EXAMINATION BY MS RICHARDS PN510
THE WITNESS WITHDREW PN515
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