AG2016/7598, Transcript of Proceedings [2017] FWCTrans 424 (9 October 2017)

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PN2713

THE COMMISSIONER: Mr Wood.

PN2714

MR WOOD: Commissioner, before my learned friend, Mr Kirkwood, resumes the cross-examination of Ms Feist, can I deal with a couple of housekeeping matters. The first is to tender the budget papers. I'll hand up a copy. You will recall that yesterday my learned friend, Mr Kirkwood, tendered as exhibit R12 an extract of the budget papers which missed out on page 18. Page 18 is included in this version and that page is the page that Mr Nicolaou referred to in footnote 9 to his report. I tender that.

PN2715

THE COMMISSIONER: All right. Let's mark that as an exhibit. So that will be exhibit A11.

EXHIBIT #A11 BUDGET PAPERS

PN2716

MR WOOD: Yesterday, the witness was asked some questions about documents that had gone to her knowledge to the senate. We're seeking some instructions about those matters and hopefully be in a position to inform the Commission about those matters within the next hour or so. There have been some discussions as between counsel about exhibit A7 and we are in the process of providing some additional information and we'll do that in due course. Commissioner, we'll do that in a formal way through you and then pursuant to order and then subject to any application our learned friends make to obtain that material.

PN2717

Lastly, in relation to the confidentiality regime, there are some things that we have to do in relation to some aspects of the transcript which are in hand to the deidentification of names which is very close to being agreed and we'll tell you about that by either close of business this afternoon or on Monday morning, Commissioner.

PN2718

THE COMMISSIONER: Bearing in mind that it started on Monday, I have made no ruling about deidentification of anybody for any purposes.

PN2719

MR WOOD: No, but we're very close to agreeing a position as between the parties and if that's acceptable to you, Commissioner, then I imagine you will make an order giving effect to the consent position reached between the parties.

PN2720

THE COMMISSIONER: I will consider making an order.

PN2721

MR WOOD: I am sorry, Commissioner, that's quite right. No matter what we consent to, we can't oust your jurisdiction to do what you think is right.

PN2722

THE COMMISSIONER: Indeed.

PN2723

MR WOOD: But we'll present the consent position to you for your analysis. I don't think there's anything else I need to raise. May I be excused from the Bar table, Commissioner?

PN2724

THE COMMISSIONER: Yes, yes, thank you. Mr Kirkwood.

PN2725

MR KIRKWOOD: Thank you, Commissioner.

<FIONA CATHERINE FEIST, RECALLED [9.54 AM]

CROSS-EXAMINATION BY MR KIRKWOOD [9.54 AM]

PN2726

MR KIRKWOOD: Now, Ms Feist, I asked you some questions yesterday about whether the senate had considered this application. Do you recall those questions?‑‑‑Yes.

PN2727

I asked you to see if you could obtain some further information. Do you recall that?‑‑‑Yes.

PN2728

Have you had a chance to look for that information?‑‑‑I haven't yet, no.

PN2729

Haven't at all?‑‑‑No, I haven't.

PN2730

Did you take any steps to look for the information?‑‑‑I'm seeking some advice from – yes.

PN2731

Who are you seeking advice from?‑‑‑I've spoken to the director of People and Culture.

PN2732

Why do you need to speak to the director of People and Culture?

PN2733

THE COMMISSIONER: Mr Kirkwood, why are you pursuing this now?

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2734

MR KIRKWOOD: Commissioner, I asked the witness yesterday in her capacity as a member of the senate to try and obtain some information, and in my submission Ms Feist as a member of the senate is perfectly capable of making those enquiries and if she can find the information providing it to the Commission directly. I am a little concerned that it seems advice has been sought from the director of People and Culture. I confess I am at a loss to understand why that step would be necessary.

PN2735

THE COMMISSIONER: Let's just back up a bit. You have asked the witness for something. You haven't specified the timeframe, she didn't commit to a timeframe. It's 10 in the morning, what time did you ask those questions of her yesterday?

PN2736

MR KIRKWOOD: It would have been 3 to 4 pm.

PN2737

THE COMMISSIONER: Mid-afternoon, late afternoon?

PN2738

MR KIRKWOOD: Yes.

PN2739

THE COMMISSIONER: Just practicalities would suggest that an expectation you might have had for her to turn up today with this material is probably unreasonable.

PN2740

MR KIRKWOOD: If the Commission pleases.

PN2741

THE COMMISSIONER: She wasn't on notice that you wanted this, was she, prior to yesterday's questions?

PN2742

MR KIRKWOOD: No, this was not foreshadowed before my cross-examination.

PN2743

THE COMMISSIONER: That's the only point I want to make. Were you having this conversation with the witness on Monday I would be perhaps more sympathetic to you pursuing it with her.

PN2744

MR KIRKWOOD: If the Commission pleases. We will take it up with our learned friends. Thank you. Now, I want to turn to what you have said in your reply statement about the case of Ms B. If you can bring your reply statement up, it's in volume 2 of the Commission book at tab 35, and if you turn to page 714. Do you have that?‑‑‑Yes, I do.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2745

Can I ask where did the information in your witness statement in relation to Ms B's case come from?‑‑‑Could you be more specific about what piece of information you're asking me about.

PN2746

All of it. Where did you obtain this information?‑‑‑From – some from my own knowledge, other pieces of information was specifically from People and Culture.

PN2747

Who within the People and Culture?‑‑‑Through Sarah Hutchinson I was provided with the information about Ms B's appointments.

PN2748

About her appointments?‑‑‑Yes, that's correct.

PN2749

Which appointments are you referring to?‑‑‑Point 14.

PN2750

So the information in point 14 came from Ms Hutchinson?‑‑‑Yes, that's correct.

PN2751

Any other information that didn't come from your own personal knowledge?‑‑‑So points 19 and 20 I also sought advice from – it says in my statement on point 20 I'm told by People and Culture.

PN2752

Ms Hutchinson again?‑‑‑Yes, that's correct. And I think that that's it.

PN2753

Everything else from your personal knowledge?‑‑‑I believe so, yes.

PN2754

Now, in paragraph 13 back on page 714 you have described Ms B as an academic employee who teaches a course in the Agricultural Sciences School. Do you see that?‑‑‑Yes.

PN2755

It's right, isn't it, that Ms B teaches four courses, does she not?‑‑‑She teaches into four courses, that's correct, yes.

PN2756

Master of Biosecurity?‑‑‑Yes.

PN2757

Graduate Diploma in Plant Biosecurity?‑‑‑Yes.

PN2758

Graduate Certificate in Plant Biosecurity?‑‑‑Correct.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2759

And Master of Food Security?‑‑‑Correct.

PN2760

So when you said that she's an academic employee who teaches a course that wasn't right?‑‑‑No.

PN2761

In paragraph 14 you say Ms B – I am sorry I preface this by drawing your attention to the fact that in paragraph 13 you introduce this section by saying:

PN2762

In December 2014 Murdoch converted the employment.

PN2763

Do you see that?‑‑‑Yes.

PN2764

Then in paragraph 14 you say:

PN2765

Ms B was the academic chair for Postgraduate Biosecurity and Food Security.

PN2766

It's right, isn't it, that in December 2014 she was the academic chair for Plant Biosecurity?‑‑‑That's correct.

PN2767

The Food Security course didn't exist at the time?‑‑‑That's correct, it commenced in 2015 from memory.

PN2768

So that's another error?‑‑‑I wasn't directly referring to 2014 when I was referring to point 14.

PN2769

You then go on to say:

PN2770

The course was not doing well and enrolments were down.

PN2771

Do you see that?‑‑‑Yes.

PN2772

At the time Ms B was converted she was the academic chair for three courses, was she not?‑‑‑Yes, she was.

PN2773

Master of Plant Biosecurity?‑‑‑Yes.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2774

Graduate Diploma in Plant Biosecurity?‑‑‑Yes.

PN2775

And Graduate Certificate in Plant Biosecurity. Do you agree?‑‑‑Yes.

PN2776

Those three courses had commenced in March 2010; you agree with that?‑‑‑I actually don't know. I wasn't in the school at the time so I can't comment.

PN2777

Are you aware that the then dean had closed enrolments in the diploma and masters in 2011 and 2012?‑‑‑Again I wasn't involved in – in that, so I can't comment.

PN2778

You don't know?‑‑‑No.

PN2779

Are you aware that a review of those three courses had taken place in 2012?‑‑‑Again I can't comment.

PN2780

You don't know?‑‑‑I wasn't in the school at the time.

PN2781

The outcome of that review was that the courses should continue and then they will reopen to enrolments. Do you know that?‑‑‑Again I said I wasn't in the school, so I'm not aware.

PN2782

So I put to you that your statement that the course was not doing well and enrolments were down is not correct?‑‑‑That is my view on the data that I had.

PN2783

Also in paragraph 14, you've said: "Ms B commenced as a post-doctorate fellow on 22 September 2003 and was subsequently appointed a senior research fellow on 3 April 2006, a position she held on a series of fixed term contracts until she was converted to permanent employment." See that?‑‑‑Yes.

PN2784

You say you obtained this information from Ms Hutchinson?‑‑‑Correct.

PN2785

The fact is that Ms B was not in the same position of senior research fellow until 2014. Do you agree with that?‑‑‑The information that I was given from People & Culture told me that.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2786

She was, in fact, promoted to senior lecturer in 2009?‑‑‑I didn't have that information.

PN2787

See in paragraph 15, you have said: "In the circumstances, the preferable thing to do would have been to offer Ms B a further fixed term contract." I will just ask you to read the rest of paragraphs 15 and 16?‑‑‑The continuation of paragraph 15: "It was not beneficial to the university to engage Ms B on a continuing basis."

PN2788

I'm sorry, I should have said read to yourself. You don't need to read it aloud?‑‑‑I'm sorry, pardon me.

PN2789

My apologies. In paragraph 15, you were talking about a course. What course are you talking about here?‑‑‑I was referring to all the courses that Ms B taught.

PN2790

Master of Plant Biosecurity?‑‑‑Yes.

PN2791

Graduate Certificate in Plant Biosecurity?‑‑‑Yes.

PN2792

And Graduate Diploma in Plant Biosecurity?‑‑‑Yes.

PN2793

You said in paragraph 16 that: "Ms B applied for conversion to continuing employment under clause 16.5(l) of the agreement. She met the eligibility criteria for conversion and as such People & Culture advised that the school had no choice but to convert her to continuing employment and this occurred." You have identified that as a paragraph that you put forward from your own personal knowledge?‑‑‑That's my understanding of what happened.

PN2794

What's that understanding based on?‑‑‑My observations of Ms B's conversion.

PN2795

The fact is that Ms B applied for conversion under clause 16.5(l) and also asked for the school to review her contract under 16.5(s), did she not?‑‑‑This was my observation of what happened.

PN2796

You don't know?‑‑‑I don't know, no.

PN2797

In fact, Ms B was converted under clause 16.5(s) and not 16.5(l); do you know?‑‑‑I am subsequently aware of that, yes.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2798

When did you become aware of that?‑‑‑A few days ago.

PN2799

Can you be more precise?‑‑‑Wednesday afternoon.

PN2800

How did you become aware?‑‑‑I was - it was before - - -

PN2801

I should say with any of these questions if to answer them you need to disclose communications with any lawyer, don't disclose those, but if it's - - -?‑‑‑Sure. No, no, that's fine. So, I was provided with Ms B's reply witness statement.

PN2802

When you confirmed the contents of your witness statement yesterday, you didn't make any correction to that paragraph?‑‑‑No, because at the time this was my - this was my opinion and my observation of what happened.

PN2803

But you knew when you confirmed your witness statement that that wasn't right?‑‑‑Okay.

PN2804

Do you agree with that?‑‑‑I didn't consider it.

PN2805

It was something you should have corrected?‑‑‑Okay, thank you.

PN2806

Do you agree?‑‑‑Yes.

PN2807

Can we just go to the letter from People & Culture concerning Ms B's conversion?‑‑‑Could I have a copy, please?

PN2808

Yes, 18 December 2014?‑‑‑Thank you.

PN2809

This is a letter from Brendan Cusack, industrial relations advisor human resources office to Ms B and it might be easier to understand this if we have clause 16.5(s) beside it. So if you can open volume 1 of the Commission book and if you go to page 25 behind tab 1. Do you have that clause?‑‑‑I do, yes.

PN2810

You see that that clause provides that the university must review the position of employees placed on more than three consecutive fixed term contracts or fixed term employment amounting to five or more years. See that in the clause?‑‑‑Yes.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2811

That's the first requirement, more than three consecutive fixed term contracts or fixed term employment amounting to five or more years. Do you agree with that?‑‑‑I can read the clause, yes.

PN2812

Then the next requirement is the same or substantially similar duties have been required. Do you see that?‑‑‑Yes.

PN2813

The third requirement is that the employer has reviewed the position of the employee. That's implicit in the clause, isn't it?‑‑‑Yes.

PN2814

The next requirement is that the review has found that the work required of the employee is ongoing. Do you agree with that?‑‑‑Yes.

PN2815

You will see at the end of that clause that the employee also has to satisfy the criteria in 16.5(l). See that at the end of the clause?‑‑‑Yes.

PN2816

That is a more onerous requirement than simply meeting 16.5(l), isn't it?‑‑‑I'm just going to read 16.5(l).

PN2817

Do you agree?‑‑‑I don't really have a comment.

PN2818

If we look at the letter from Brendan Cusack again. See in the second paragraph it says: "I advise that the university is now satisfied that the work undertaken by you is considered by the School of Veterinary and Life Sciences to be ongoing." See that?‑‑‑Yes.

PN2819

That was the case, wasn't it?‑‑‑That is not my opinion.

PN2820

I didn't ask you for your opinion.

PN2821

MR WOOD: Well, objection. Yes, you did.

PN2822

THE COMMISSIONER: Just ask it again.

PN2823

MR KIRKWOOD: All right.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2824

The School of Veterinary and Life Sciences, in fact, considered Ms Bayliss' work to be ongoing at that time. Do you agree with that?‑‑‑I was involved in the outskirts of this. It is my view that Ms B's position should not have been considered to be ongoing. That's my opinion.

PN2825

You see that letter refers to, in the first paragraph, conversations and meetings. See that?‑‑‑Yes.

PN2826

One of those meetings was a meeting on 11 December 2014 including David Hampson, the dean of the school, John Bailey, the associate dean of teaching and learning, Mr Cusack from People & Culture, and Ms B. Are you aware of that?‑‑‑I'm aware that meeting took place, yes.

PN2827

At that meeting, Mr Bailey specifically advised People & Culture that there would always be enough teaching available for Ms B at the school. You're aware of that?‑‑‑I'm only aware that that statement was made based on Ms Bayliss' reply witness statement.

PN2828

THE COMMISSIONER: Mr Kirkwood, the letter you showed the witness a moment ago, I assume you want that to be an exhibit.

PN2829

MR KIRKWOOD: Yes, please, Commissioner.

PN2830

THE COMMISSIONER: All right. So, the letter on the Murdoch letterhead dated 18 December 2014 to Dr Kirsty Bayliss re request for conversion to continuing status we'll mark as exhibit R16.

EXHIBIT #R16 LETTER ON MURDOCH LETTERHEAD DATED 18/12/2014 TO DR KIRSTY BAYLISS RE REQUEST FOR CONVERSION TO CONTINUING STATUS

PN2831

MR KIRKWOOD: If we can go back to your witness statement. If you look at paragraph 18 on page 715, you will see you have said: "Since Ms B's conversion to continuing employment, enrolments in her course have continued to decline." See that?‑‑‑Yes.

PN2832

Yesterday a document was tendered by my learned friend. It was a one-page A4 landscape spread sheet headed "Exhibit A10." It was titled: "Onshore student" - - -

PN2833

THE COMMISSIONER: I think it's A9.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2834

MR KIRKWOOD: Sorry, A9. "Onshore student head count and EFSTL." That should be "EFTSL" I take it?‑‑‑EFTSL, yes.

PN2835

"For plant security and food security for 2014 to 2017 only up to the first half of 2017." Can I just take you to some evidence you gave about that document. Can we hand up an extract of yesterday's transcript?‑‑‑Thank you.

PN2836

You will see throughout this transcript before each paragraph there is a number that begins "PN"?‑‑‑Yes.

PN2837

If you can turn through that. Unfortunately, the pages don't have page numbers, but if you can turn through the document to PN2530?‑‑‑Yes.

PN2838

You will see, and if you need to look a couple of answers up, you were being asked some questions about this document, exhibit A9?‑‑‑Yes.

PN2839

You were asked at PN2530: "Are these courses the courses that Ms Bayliss is responsible for?" And you said: "That's correct"?‑‑‑Yes, yes.

PN2840

If we just look at what you have presented in this document, beginning with Graduate Certificate in Plant Biosecurity and moving across the columns from 2014 to 2017. What I want to put to you is that those numbers go up and down, don't they?‑‑‑Which numbers specifically are you talking about? The head count or - - -

PN2841

Both?‑‑‑Yes, by a very small margin.

PN2842

It's not accurate to say, as you have said in paragraph 18, that enrolments had simply declined. The picture is more complicated than that, isn't it?‑‑‑Yes, I guess.

PN2843

Similarly, if you look at the Graduate Diploma in Plant Biosecurity, again, the numbers go up and down from year to year?‑‑‑Yes.

PN2844

It's not a simple case of a decline?‑‑‑No.

PN2845

The other thing about the Graduate Diploma in Plant Biosecurity is that it's been closed to new enrolments and is being taught out, isn't it?‑‑‑Correct.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2846

You didn't mention that in your evidence yesterday?‑‑‑I wasn't asked so I didn't see any particular relevance.

PN2847

You didn't think that was relevant to mention?‑‑‑Sorry, no.

PN2848

So that, in fact, the 2017 numbers reflect the fact that that course is just not taking new enrolments. You agree?‑‑‑Correct.

PN2849

You have then presented over two rows the Master of Plant Biosecurity?‑‑‑Correct.

PN2850

With this course, it's the case, isn't it, that in 2016, that course was replaced with a Master of Biosecurity, was it not?‑‑‑Can you repeat the question?

PN2851

The Master of Plant Biosecurity in 2016 was being replaced with a Master of Biosecurity?‑‑‑Correct.

PN2852

These two rows also reflect a course that is now being taught out and is closed to new enrolments?‑‑‑Correct, that's right.

PN2853

The Master of Biosecurity has a course code M1248, does it not?‑‑‑I can't tell you the course codes, I'm sorry.

PN2854

Ms Bayliss is the academic chair for that course?‑‑‑Correct.

PN2855

You haven't included that in this table, have you?‑‑‑No.

PN2856

Why not?‑‑‑Because I was specifically looking at the courses that we had listed here.

PN2857

When you told the Commissioner yesterday when you answered the question, "Are these the courses the courses that Ms Bayliss is responsible for? That's correct", that answer was wrong, wasn't it? It missed out the Master of Biosecurity?‑‑‑For 2017, yes.

PN2858

And 2016, you agree with that?‑‑‑I'd need to double check when the course started.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2859

Just finally on this the Master of Food Security, the last one you presented, you agree that this course didn't even exist at the time of conversion?‑‑‑Correct.

PN2860

So it's not accurate to say that enrolments in that course have declined since her conversion, there simply were no enrolments when she was converted?‑‑‑I haven't actually specifically said that.

PN2861

Am I also right in understanding that because this table only provides enrolments in these particular courses it doesn't show the students who take Ms B's units as part of other courses?‑‑‑These are the unit – these are the courses that she is the academic chair of. Her workload shows the courses that all the units that she teaches.

PN2862

I am just asking about this particular document. You have given the enrolments for these particular courses, but you would agree, wouldn't you, that in the units that Ms B teaches there are students taking those units as part of other courses beyond those listed here?‑‑‑That's correct, yes.

PN2863

An example of that is masters courses offered by the Sir Walter Murdoch School of Public Policy and International Affairs?‑‑‑I don't have the specifics of Ms B's teaching in front of me at the moment.

PN2864

You don't know?‑‑‑I don't know.

PN2865

So you would agree with me that if you wanted to give the Commission the complete picture on enrolments in Ms B's courses between 2014 and 2017 this document doesn't provide it?

PN2866

MR MANOS: I object to that question and the implied criticism that's coming towards the witness' way on this. Ms Bayliss' statement was filed on 5 July at 3.30 pm on Wednesday. Ms Feist was called yesterday to deal with it. We had overnight to have a look at it and pull out some documents, and what Ms Feist did in examination-in-chief yesterday was reply exactly to what Ms Bayliss has written in her statement. She doesn't have these things that my learned friend is asking about in her statement. It's fair to ask those questions of Ms Feist does she know she's teaching these other courses. That's fine, but to be critical of her when she's had very little to prepare to respond to that issue is, in my submission, unfair.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2867

THE COMMISSIONER: Mr Manos, before I go to Ms Bayliss' statement are you saying she hasn't broken down the students within a lecture she's teaching by course even though they're all taking her unit?

PN2868

MR MANOS: Not only has she not done that, but she's named the courses that she was responsible for in 2014, and then Ms Bayliss has said these - - -

PN2869

THE COMMISSIONER: But Ms Bayliss focused on courses not units.

PN2870

MR MANOS: Sorry, units and courses she talked about.

PN2871

THE COMMISSIONER: I am not going to sit down and read Ms Bayliss' witness statement to clarify this, but I accept Mr Manos' one point that this witness hasn't had much time to respond to this material, and you all bear criticism for that.

PN2872

MR KIRKWOOD: If the Commission pleases. I won't cavil with anything you just said, Commissioner, but I would seek to make a submission that Ms Feist has given you a version of events in her reply statement and that was tendered yesterday audibly without correction.

PN2873

THE COMMISSIONER: I have understood the questions you have made and the points you have made. I have grasped the difference between units and courses and who's sitting in a lecture theatre when Ms Bayliss is lecturing.

PN2874

MR KIRKWOOD: You would agree, wouldn't you, that all of Ms B's courses are key strategic and growth areas for the university?‑‑‑I agree that – that the areas where Ms B teaches into are core research strengths for the university, yes.

PN2875

Not teaching?‑‑‑As the numbers stand at the moment it's not viable to continue teaching in these areas.

PN2876

That wasn't quite my question. Focus on teaching, these are all key strategic and growth areas for the university when it comes to teaching?‑‑‑The financial viability of these courses means that we cannot continue to teach into these areas.

PN2877

So you disagree with my proposition?‑‑‑I disagree.

PN2878

I just want to take you to some other evidence you gave yesterday concerning what constitutes strong enrolments. So if you can take the transcript again and turn over to paragraph PN2547 and 2548, and you will see at 2547 you express the view that a strong postgraduate course would have enrolments of at least 20 to 25 unit students. In the next paragraph you clarify that you were saying EFTSL there. Then you say:

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2879

The school does have some courses, postgraduate courses that run at approximately 15 in EFTSL and provided that they lined up with the school strategy we would consider keeping them as courses.

PN2880

I just want to show you a document that's exhibited to Ms B's witness statement. Do we have Ms B's witness statement available to the witness, Commissioner. Commissioner, I should preface this by saying this is a document over which I understand there is to be a claim for confidentiality. I have raised this with my learned friend and the course I propose to follow is to take the witness to parts of the document, ask her to read those parts to herself, and I don't propose to read them and I won't ask the witness to read them aloud, and then I will just ask at the end for the document to be marked for further identification. I will discuss the confidentiality issue with my learned friend again and we can deal with the tender at a later time if that's satisfactory to you, Commissioner.

PN2881

MR MANOS: Yes, that's an agreed position.

PN2882

THE COMMISSIONER: All right.

PN2883

MR KIRKWOOD: So, Ms Feist, can I ask you to turn to – you will see at the bottom of each page in the middle there's a page number?‑‑‑Yes.

PN2884

If you can go to page 100?‑‑‑Yes.

PN2885

I just ask you to note – I don't anticipate this is confidential – this is minutes of a marketing committee meeting the School of Veterinary and Life Sciences from 26 June 2017?‑‑‑Yes.

PN2886

You attended that meeting?‑‑‑Yes.

PN2887

Can I ask you to look at page 101, section 5?‑‑‑Yes.

PN2888

I just ask you to read what's written in section 5 to yourself?‑‑‑Yes.

PN2889

You will see it refers to an attachment?‑‑‑Yes.

PN2890

And if you turn over to page 103, that is the attachment; correct?‑‑‑Correct.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2891

And can you go to - yes, can you go to page 104, you see at the bottom of that page, there's a section headed: "Target numbers"?‑‑‑Yes.

PN2892

Can I just ask you to read what's in that section at the bottom of that page and the top of the following page?‑‑‑Yes.

PN2893

Do you see there's a reference to an appendix A?‑‑‑Yes.

PN2894

If you go to page 115 of the document?‑‑‑Yes.

PN2895

You'll see there's an appendix A?‑‑‑Yes.

PN2896

You see just past halfway down the table, there's a heading: "Post-graduate course work"?‑‑‑Yes.

PN2897

Listed there are the post-graduate course work courses offered by the school?‑‑‑Yes.

PN2898

Can I just ask you to look at the numbers listed there?‑‑‑Yes.

PN2899

I just wanted to ask you whether anything in that table causes you to reconsider the evidence you gave evidence concerning strong enrolments?‑‑‑Absolutely not. Currently all our Masters offerings are under review and we are looking at closing a significant portion of them at the end of this year and teaching them - and teaching them out.

PN2900

Can I ask you, when you refer to a review, are you referring to a review that's currently being undertaken by the teaching and learning committee?‑‑‑There has been discussion at the teaching and learning committee of the school, yes.

PN2901

Am I right in understanding that that review is ongoing?‑‑‑I'm not entirely sure where the discussion is at at the learning and teaching committee, but the school has been directed by the provost to close a number of the courses.

PN2902

That's a rationalisation, is that right, you have been directed to ration?‑‑‑Some of the Masters will remain open, yes.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2903

What exactly has the provost directed?‑‑‑I'll caveat this that this is not my area. This is very much looked after by the associate dean learning and teaching and the dean of the school.

PN2904

Is that Michael Calver?‑‑‑Correct.

PN2905

No decision has been made in this review as to which units to rationalise; correct?‑‑‑Are you referring to units or courses?

PN2906

I'm sorry, courses?‑‑‑It has not been a hundred per cent decided which courses will be closed and taught out.

PN2907

Sorry, just before I move off that document, there is one aspect of it I wanted to ask you about?‑‑‑Yes.

PN2908

Can you turn to page 108?‑‑‑Yes

PN2909

Halfway down the page, you have a paragraph that begins: "Based on analysis"?‑‑‑Yes.

PN2910

Can I ask you to read everything from that paragraph to the bottom of the page?‑‑‑Yes.

PN2911

You see in the first bullet point it says: "Acquire"?‑‑‑Yes.

PN2912

You see how that is defined?‑‑‑Yes.

PN2913

You see the fourth item from the bottom in the table?‑‑‑Yes.

PN2914

That is one of Ms Bayliss' courses?‑‑‑That is correct.

PN2915

That is the course that you omitted from the table presented yesterday?‑‑‑Correct.

PN2916

Might annexure KB12 to Ms Bayliss' witness statement be marked for identification at this stage, Commissioner? I'm in your hands.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2917

THE COMMISSIONER: I am just pondering what's the best way to do it. I'm not suggesting we don't. All right, so which attachment is it again, please, Mr Kirkwood?

PN2918

MR KIRKWOOD: KB12.

PN2919

THE COMMISSIONER: Mr Manos, there is some sensitivity or query about this document?

PN2920

MR MANOS: There is, sir.

PN2921

THE COMMISSIONER: Do I need to know about that now?

PN2922

MR MANOS: I don't expect so. I expect this should be a matter that should be able to get sorted out between the parties by the time Ms Bayliss comes to give evidence.

PN2923

THE COMMISSIONER: All right. That is helpful, thank you. All right, let's just keep it simple. We will mark the attachment to the witness statement of Kirsty Bayliss which is yet to be admitted into evidence, That attachment being KB12, as exhibit R17.

EXHIBIT #R17 ATTACHMENT KB12 TO WITNESS STATEMENT OF KIRSTY BAYLISS

PN2924

MR MANOS: Is that to be marked as an exhibit, Commissioner, or is that - - -

PN2925

THE COMMISSIONER: Yes.

PN2926

MR MANOS: Yes, okay.

PN2927

THE COMMISSIONER: Yes.

PN2928

MR MANOS: But to have the status of - - -

PN2929

THE COMMISSIONER: Let's just so it's going to have a dual identity.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2930

MR MANOS: Yes.

PN2931

THE COMMISSIONER: So it will be an attachment assuming in due course, and the way things are going I think it is dangerous to make assumptions about anything in this case, the statement of Kirsty Bayliss is admitted into evidence.

PN2932

MR MANOS: An astute observation, thank you, Commissioner.

PN2933

THE COMMISSIONER: It exists - KB12 exists also in its own right as exhibit R17.

PN2934

MR KIRKWOOD: Thank you, Commissioner.

PN2935

Can I ask you about an answer you gave yesterday concerning revenue from Ms Bayliss' courses. If you look at paragraph 2554 of the transcript. Do you see that?‑‑‑Yes.

PN2936

You see there you were asked a question asking for your response to paragraph 36 of Ms Bayliss' statement?‑‑‑Yes.

PN2937

Where Ms Bayliss said: "In 2016, my courses provided the university with a net profit of approximately $300,000." And you said: "I believe that number is incorrect. Her courses or the courses that are listed on this spread sheet brought in about $240,000 in total revenue to the school, also with the costs associated with running those courses as well." Do you stand by that evidence?‑‑‑In relation to the courses that were listed on this spread sheet, yes.

PN2938

Can I show you a couple of documents? Sorry, Commissioner, I have just got some documents – I should say also, Commissioner, with at least the spreadsheet I anticipate that it will be a claim for confidentiality, and so I propose to cross-examine in the same way so that it simply be marked for identification and then we can deal with the confidentiality later if that's convenient. So, Ms Feist, hopefully you have been handed an email and two spreadsheets?‑‑‑Yes.

PN2939

If I can ask you to look at the email first. If you turn over to page 2 you see there's an email from you on 29 September 2016 to cluster leaders?‑‑‑Yes.

PN2940

I just ask you to read that to yourself?‑‑‑Yes.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2941

You agree you sent that email?‑‑‑Yes, I did.

PN2942

You agree that you prepared – this spreadsheet was attached to that email, did you prepare that spreadsheet?‑‑‑No, I didn't.

PN2943

Did you review the spreadsheet?‑‑‑Yes, I did.

PN2944

Am I right in saying that when you say in your email, "I have reviewed the data on a number of occasions" you are referring or at least including that spreadsheet?‑‑‑I was referring to the spreadsheet that was attached to this email, yes.

PN2945

Can we look at the spreadsheet. Now there are actually two spreadsheets we have handed up. One is – I am sorry, I am not sure which order they have been handed up, but one is the spreadsheet attached to your email and the other is the spreadsheet in which we have highlighted the columns containing the units of Ms Bayliss?‑‑‑I see it, yes.

PN2946

Can I just ask you to look at the version which contains that highlighting, it will just be easier to follow. Do you have that?‑‑‑Yes.

PN2947

I won't read out any of the numbers, but I just ask you to note - - -

PN2948

THE COMMISSIONER: Just to assist me the words "highlighting Ms Bayliss" don't help me because they're highlighted differently on both spreadsheets, but you're talking about the document where the unit coordinator is named as Kirsty Bayliss, the whole block above and below her name has been highlighted. Is that correct?

PN2949

MR KIRKWOOD: Yes, that's right.

PN2950

THE COMMISSIONER: Yes, as distinct from just her name.

PN2951

MR KIRKWOOD: That's right.

PN2952

THE COMMISSIONER: Which is highlighted on the other document.

PN2953

MR KIRKWOOD: Yes.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2954

THE COMMISSIONER: All right, I am with you now.

PN2955

MR KIRKWOOD: You see this sets out income, expenditure, net result and gross margin?‑‑‑Correct.

PN2956

You see it does so in respect of each of Ms B's units?‑‑‑The units, yes.

PN2957

We will come to that, but just focusing on units you agree that this spreadsheet sets out the net result and gross margin for each of Ms B's units the date of that spreadsheet?‑‑‑Some of the information – because this particular spreadsheet was focused on an undergraduate predominantly, not postgraduate, so you can see that there is some gaps in information in expenses, like there's no salary data for example in this particular - - -

PN2958

All I want to put to you is that when you add up the net results in this spreadsheet for Ms B's units and taking into account the one unit that has a negative result come up with approximately 288,000, and what I want to put to you is that that was the basis of the statement in Ms Bayliss' statement, and I appreciate that statement referred to courses, so perhaps it may be necessary to correct that to units when Ms B comes to give evidence, but if that were corrected to units would your response to that paragraph change?‑‑‑I – I would need to look at that data in a lot more detail.

PN2959

Yes, I just ask that perhaps those three documents, the email and the two spreadsheets be marked together.

PN2960

THE COMMISSIONER: Why are we marking the first spreadsheet which we haven't - - -

PN2961

MR KIRKWOOD: Well, it may be unnecessary. It was only so that a copy of the original spreadsheet is in evidence without our qualifications.

PN2962

THE COMMISSIONER: Thank you, that's helpful. All right, I think we will bundle them together as one exhibit.

EXHIBIT #R18 EMAIL HEADED "RE UNIT REVIEW FINANCIAL DATA" DATED 15/11/16 FROM RICHARD HARPER WITH A NUMBER OF ATTACHMENTS, AND TWO SPREADSHEETS

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2963

MR KIRKWOOD: Can I just ask you one further question. In respect to the unit that recorded a negative net result – do you still have that spreadsheet?‑‑‑In a minute. What unit was that?

PN2964

I won't read it out, but it's the third highlighted unit?‑‑‑Right, yes.

PN2965

You see that?‑‑‑Yes.

PN2966

Are you aware that that unit is in fact closed to new enrolments and has been (indistinct) out?‑‑‑I can't specifically comment on a unit, that specific unit. We have hundreds in the school.

PN2967

When Ms B was converted in December 2014, she commenced a three-year probationary period, did she not?‑‑‑That's my understanding, yes.

PN2968

This year, she applied for an early review of her probation. Are you aware of that?‑‑‑I am, yes.

PN2969

On 15 June this year, the lecturer promotions and probationary review committee recommended to the vice-chancellor that Ms B's continuing appointment be confirmed with an aware of immediate tenure. Are you aware of that?‑‑‑Yes.

PN2970

The vice-chancellor accepted that recommendation and on 29 June 2017 informed Ms B of that by letter?‑‑‑Yes.

PN2971

You're aware of that. And if I can just hand that letter up, 29 June?‑‑‑Thank you.

PN2972

That is a letter from the vice-chancellor confirming the matters I just described and congratulating Ms Bayliss on her achievements and thanking her for her contribution to research, teaching and service at Murdoch University?‑‑‑Yes.

PN2973

I tender that.

PN2974

THE COMMISSIONER: Yes, that document, on the Murdoch University letterhead, 29 June 2017, to Dr Kirsty Bayliss, re application for probationary review, we will mark as exhibit R19.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

EXHIBIT #R19 LETTER ON MURDOCH UNIVERSITY LETTERHEAD DATED 29/06/2017 TO DR KIRSTY BAYLISS RE APPLICATION FOR PROBATIONARY REVIEW

PN2975

MR KIRKWOOD: If we can just go back to your reply statement, Ms Feist. Do you have that?‑‑‑I do, yes.

PN2976

In paragraph 20 on page 715, see you have presented a comparison between what Ms B would be entitled to receive if she were made redundant now with what she would have been entitled to receive if she had remained on fixed term contracts. Do you see that?‑‑‑Yes.

PN2977

You have also presented a further comparison with what she would have been entitled to receive if she had been employed after 2006 and remained on fixed term contracts. Do you see that?‑‑‑Yes.

PN2978

If Ms Bayliss had been employed after 2006, let's just say in 2007, she would by now have approximately a decade's service, would she not?‑‑‑Yes.

PN2979

Your evidence is that if she had remained an employee in that position, if they had remained on fixed term contracts for 10 years, would have been entitled to only eight weeks' severance. That's your evidence?‑‑‑That's the information that I received from the Office of People & Culture.

PN2980

Are you putting this forward to the Commission as a reason why the agreement should be terminated?‑‑‑I used this as an example directly relating to Ms B and her situation.

PN2981

Does the university want to be able to retrench an academic who has 10 years' service for eight weeks' severance pay?‑‑‑I can't comment on that.

PN2982

If the agreement is terminated, does the School of Veterinary and Life Sciences have plans to make employees redundant?‑‑‑Again, I can't comment on that.

PN2983

You don't know?‑‑‑I don't have a comment.

PN2984

Do you have plans or not? I mean - - -?‑‑‑We currently have no plans to make anybody redundant.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2985

Can I ask you to look at what you have said in your reply statement at page 725, paragraph 66: "There is some restructuring I would like to do within the school. For example, I would like to bring together some courses which are currently segregated. I would also like to review and introduce some efficiencies in the mechanical and electrical workshops, histology laboratories in the Murdoch University farm. All of these changes would result in redundancies"?‑‑‑That's correct, I'm sorry. When I said what I said before, I thought you were referring to the cancellation of the agreement and then making people redundant.

PN2986

These are not contingent on cancellation of the agreement?‑‑‑No, they're not.

PN2987

They will proceed anyway?‑‑‑The review of the mechanical and electrical workshop, the initial paper has already been written for that, yes.

PN2988

When will these redundancies occur, do you expect?‑‑‑I can't comment on how long that process will take.

PN2989

Is there an estimate available at present as to when it might occur?‑‑‑I can't give you a timeline.

PN2990

Do you plan to use voluntary or involuntary redundancies?‑‑‑We haven't got that far in the process yet.

PN2991

Can I ask you to look at paragraph 68 over the page: "I would also be concerned about using a voluntary rather than involuntary redundancy process." So your preference would be for an involuntary redundancy process?‑‑‑With regards to what specifically?

PN2992

The redundancies to which you refer in paragraph 66?‑‑‑I can't comment. We're not at that stage of the process yet.

PN2993

I want to ask you about the issue of performance management and the example that you have provided of Mr O. Can I ask you just to turn back in the reply statement to paragraph 34. I just wanted to understand the basic chronology of this case of Mr O. So, is it right to say that you determined that Mr O was underperforming in around June 2015?‑‑‑It came to my attention in June, yes.

PN2994

Is it right that you didn't commence the formal performance improvement process under the agreement until October or November 2015; is that correct?‑‑‑It was October 2015.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN2995

You would agree, wouldn't you, that the enterprise agreement doesn't require you to wait four months until beginning a formal performance improvement process?‑‑‑Yes, I agree it doesn't require you to wait four months.

PN2996

You then provided him with a formal performance improvement plan in January 2016; correct?‑‑‑Yes, that's correct.

PN2997

That's approximately two to three months later?‑‑‑Correct.

PN2998

You would agree, wouldn't you, that the enterprise agreement doesn't require you to wait either two to three months before implementing a performance improvement plan?‑‑‑No, but there are specific steps that need to be followed in the enterprise agreement including a number of meetings that need to take place and agreements that need to be reached about the performance improvement plan.

PN2999

The agreement doesn't require a specific number of meetings to take place, does it?‑‑‑The agreement is not specific about the number of meetings that needs to take place, but there are steps that need to be followed in line with the agreement.

PN3000

Once you provided Mr O with a performance improvement plan, am I right in understanding that a little over two weeks later, he resigned?‑‑‑Yes, I think it was almost - almost three weeks later.

PN3001

The time you took to implement this entire process was not required by the enterprise agreement, was it?‑‑‑There are some considerations, including Christmas, about the time it took. But there are steps in the agreement that are time consuming and the consultation process that needs to occur is time consuming.

PN3002

Am I right in understanding that if the agreement were terminated and the award had applied, you would still have allowed Mr O up to several months to improve his performance?‑‑‑I would have sought advice. If that was the case, I would have sought advice from People & Culture and followed what's in the Fair Work agreement and followed the process.

PN3003

Can you just look at what you said in paragraph 50 of your reply statement on page 723. Can I just ask you to read that to yourself?‑‑‑Yes.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN3004

It's right to say, isn't it, that you still would have allowed him up to several months to improve?‑‑‑You still need to allow an employee a fair amount of time to improve performance.

PN3005

Finally, can I just ask you, in your report you have given some evidence about casual salaries at the animal hospital. Do you recall that? It's at paragraph 26 to 31?‑‑‑Yes.

PN3006

This evidence concerns clause 59.6(a)(iii) of the agreement, does it not? You have referred to that in paragraph 26?‑‑‑Yes.

PN3007

I wasn't proposing to take you to the clause, but am I right in understanding the issue you have identified in these paragraphs is that you say it's unclear as to whether that clause requires casual loading to be included in the calculation of penalty rates; is that right?‑‑‑Can you repeat the question now that I've just re-read that?

PN3008

The issue you were identifying in these paragraphs of your witness statement is that you say it's unclear as to whether that clause of the agreement requires casual loading to be included in the calculation of penalty rates?‑‑‑So, my argument here is around whether or not it's calculated on a compounding basis or not.

PN3009

The issue you raise is you say it's unclear in the agreement; is that - - -?‑‑‑Correct, yes, yes.

PN3010

I just wanted to ask you, as a matter of fact when the animal hospital pays its casual employees, it does not include casual loading in the calculation of penalty rates. That is to say it does not calculate them on a compounding basis; is that correct?‑‑‑They are currently calculated on a compounding basis.

PN3011

They are on a compounding basis?‑‑‑Yes.

PN3012

Can you look at paragraph 29? You say: "As can be seen from the example given above, calculation of casual pay rates on a compounding basis would result in a significantly increased cost to the university"?‑‑‑Pardon me, I'll stand corrected. I was incorrect. The wages are currently calculated on a non-compounding basis, I'm sorry.

PN3013

No further questions, Commissioner.

*** FIONA CATHERINE FEIST XXN MR KIRKWOOD

PN3014

THE COMMISSIONER: Re-examination, Mr Manos.

PN3015

MR MANOS: Just briefly, Commissioner.

RE-EXAMINATION BY MR MANOS [11.09 AM]

PN3016

MR MANOS: Could the witness please be shown exhibit R17?‑‑‑Thank you.

PN3017

THE COMMISSIONER: I think she already has that which was an attachment to Ms Bayliss' statement.

PN3018

MR MANOS: Yes.

PN3019

Ms Feist, could I ask you, please, to turn to page 108?‑‑‑Yes.

PN3020

First of all, what's the status of this document?‑‑‑This is in its first draft. Sorry, can I just clarify, you're referring to the marketing - the Veterinary and Life Sciences marking plan?

PN3021

Indeed?‑‑‑It's currently in its first draft and has been presented to the marketing committee as an attachment and it is yet to be discussed at the marketing committee at any length.

PN3022

Are you able to please describe to the Commission the process it will go through before it is finalised?‑‑‑The next - the next step in the process is that it will be discussed. It's gone out to the marketing committee and it will be discussed at our next marketing committee meeting and then it will go to the school board.

PN3023

How long might that process take?‑‑‑Hopefully no longer than a couple of months.

PN3024

What changes, if any, might be made to this document in the course of that process?‑‑‑So, for example, the courses that the Office of Marketing Communication have identified as our courses that they want to focus on. We may change them depending on the viability, what's happening with those courses, new courses coming on, et cetera. So, that's one example of things that may change as part of this document.

*** FIONA CATHERINE FEIST RXN MR MANOS

PN3025

There's a table 3 your attention was drawn to on page 108 of that document?‑‑‑Yes.

PN3026

Semester 2, priority courses for VLS?‑‑‑Yes.

PN3027

Your comments you have said about the document changing as it undergoes that review process apply to this table?‑‑‑Correct, yes.

PN3028

Which semester 2 does this document apply to of what year, do you know?‑‑‑Yes, they're referring to - they're referring this document to this particular year, 2017.

PN3029

When does 2017 semester 2 commence?‑‑‑It will commence in July - August, pardon.

PN3030

What effect, if any, does that have about the school's intentions in respect to these subjects for 2018 and beyond?‑‑‑That they'll need to be - they'll need to be reviewed.

PN3031

Sorry, what will need to be reviewed?‑‑‑The courses that are under the acquire, priority and defend.

PN3032

Any of the questions that you were asked in cross-examination about this document, does that cause you to change any of the evidence you gave in-chief? Sorry, any of the questions that I asked you earlier in respect of Ms Bayliss?‑‑‑No.

PN3033

Are there any other comments you wish to make about this document?

PN3034

MR KIRKWOOD: That's not proper re-examination, in my submission.

PN3035

MR MANOS: I'll withdraw the question. Could the witness please be shown exhibit R18? Yes, R18, and, in particular, the A3 spread sheet. You were shown this document during cross-examination. This is a document that appears to have been attached to an email that you sent in September last year. Have you had cause to review this document before coming to the Commission today?‑‑‑I haven't reviewed this document before coming to the Commission today, no.

*** FIONA CATHERINE FEIST RXN MR MANOS

PN3036

You were asked some questions essentially about its accuracy. Without referring specifically to any numbers, is there any aspect of this document which causes you to question its accuracy of completeness? And take your time as well, Ms Feist?‑‑‑I have already highlighted that it is my belief that there are - well, I can see straight off looking at this that there are no salary costs, for example, in some of these units. So, I can tell straight off that there's incomplete information in this particular document.

PN3037

Are there any other omissions you're able to observe just by reviewing this document?‑‑‑I can't see anything else specific but, I mean, I'd need to look at it in a lot more detail and the data that sits behind it.

PN3038

As a general proposition, you have identified salary costs, some salary costs as being omitted from this document, as a general proposition, what part of total expenditure does salary costs play?‑‑‑Total expenditure to what?

PN3039

You will see here that there's total - you will see the heading, "Total expenditure", and then you will see there's a number of items that sit beneath it. And you will see some of them relate to salary costs and I am just asking as a general proposition what proportion of costs are usually assigned to salary?‑‑‑That would be dependent from unit to unit. That number is derived from the school's workload model.

PN3040

It could be significant. It might not be significant?‑‑‑That's correct.

PN3041

What was the status of this document as at September 2016? Was it draft? Was it finalised?‑‑‑As I said in my email, there had been a number of changes made to it and there needed to be a number of changes to continue being made to it.

PN3042

Are we to take from that that it was in a draft form?‑‑‑It was in draft, yes.

PN3043

I have no further questions.

PN3044

THE COMMISSIONER: Thank you for your evidence, Ms Feist, you can step down and are excused.

<THE WITNESS WITHDREW [11.17 AM]

PN3045

THE COMMISSIONER: Before we call our next witness, I suggest we just have a five-minute adjournment, thank you.

SHORT ADJOURNMENT [11.18 AM]

RESUMED [11.27 AM]

*** FIONA CATHERINE FEIST RXN MR MANOS

PN3046

THE COMMISSIONER: Yes, Mr Wood.

PN3047

MR WOOD: Thank you, Commissioner. Can I call Professor Rikki Kersten.

<RIKKI KERSTEN, AFFIRMED [11.27 AM]

EXAMINATION-IN-CHIEF BY MR WOOD [11.27 AM]

PN3048

MR WOOD: Professor Kersten, you have been the dean of the School of Arts at Murdoch University since 18 February 2014?‑‑‑Yes, that's correct.

PN3049

In your position as dean of the School of Arts at Murdoch University have you made two witness statements in this proceeding?‑‑‑I have.

PN3050

Just before the Commissioner came in the Commissioner's associate kindly showed you where the folders were in front of you. Could you go to folder 2 at page 737. It might be a little bit tricky because there are six folders that have the primary material. Have you got your statement?‑‑‑I've got it, yes. I'm on 737.

PN3051

Thank you. Is that your witness statement signed by you on 4 March 2017 which runs from page 737 to 752?‑‑‑Yes, it is.

PN3052

If you have a look at that statement can you go to paragraph 75?‑‑‑Yes.

PN3053

I understand you wish to make an amendment to paragraph 75. In the second line it says – the full sentence reads:

PN3054

This has come down from 3 million in 2013. Thanks.

PN3055

And after the word "Thanks" you wish to insert the words "in part"?‑‑‑That's correct.

PN3056

Commissioner, can I tell you that we don't seek to lead into evidence paragraph 65 through to 73. Ms Kersten, if I go now to the second statement you made, 18 June 2017, this statement runs from page 753 to 781, and contains a number of annexures that run on to page 894. Is that right?‑‑‑Yes. Yes, that's correct.

*** RIKKI KERSTEN XN MR WOOD

PN3057

I understand there are a couple of changes you wish to make to this second statement. Can you turn to paragraph 128 at page 774 and the second sentence starts with the phrase "It states that" – sorry, I will just let you get to that?‑‑‑Page 774.

PN3058

Paragraph 128?‑‑‑Yes.

PN3059

The second sentence, "It states that", and I understand you want to add the word "research"?‑‑‑That's correct.

PN3060

In between that and "quality"?‑‑‑Yes.

PN3061

Then if you go to paragraph 140 on page 776 in the second last sentence you want to delete the word "breadth" and insert in its place the word "depth"?‑‑‑Yes.

PN3062

At paragraph 147 on the page 778, you want to amend the fourth line after the words "in Singapore" and before the phrase "through Open Universities" and insert the phrase "for teaching periods" at that point?‑‑‑"For" should be the number 4, not f-o-r, but f-o-u-r. And "four teaching periods."

PN3063

Yes, so the whole sentence reads: "The School of Arts has an informal policy that we do not let people teach courses face to face in South Street as well as trimesters in Singapore and for teaching periods through Open Universities Australia"?‑‑‑It's the number 4, not the word "for". Open Universities Australia doesn't run a trimester system. It runs four teaching periods.

PN3064

At the same paragraph 147 on the last line, you wish to insert after "annual leave", the phrase, "Or conduct research"?‑‑‑Yes.

PN3065

Are those all the changes you wish to make to your second witness statement, Professor Kersten?‑‑‑Yes.

PN3066

Since you made those statements, you have become aware, have you not, that two persons you have referred to in your second statement, Professor Warren and Professor Hill, have made witness statements that have been provided to you; is that right?‑‑‑Yes.

PN3067

Can I start with Professor Warren's witness statement? Should I call him Professor Warren or Emeritus Professor Warren?‑‑‑I think Professor Warren is fine.

*** RIKKI KERSTEN XN MR WOOD

PN3068

Could I hand you Professor Warren's witness statement? Professor Warren says in this witness statement that he has been informed of the content of paragraphs 111 to 118 of your, Professor Kersten's reply statement, and he there replies to what you have said about him. Do you understand that?‑‑‑Yes.

PN3069

There are many things that Professor Warren says in this reply witness statement of his, but I just want to take you to a handful of them that are of relevance to our proceeding. One of the things that Professor Warren does is refer to the unit that you said he should teach as the first year Asian Studies Unit, he does that at paragraph 14, and the heading to that part of his witness statement refers to, I think, the same unit by a different name, the first year South East Asian History Unit. But what's the correct name of that unit?‑‑‑The actual name of the unit is Introduction to Asian Cultures.

PN3070

And it's a first year unit?‑‑‑Yes.

PN3071

You had said at paragraph 113 of your witness statement that you accused, if I can use that word, Professor Warren of asking a professor of Japanese who was also a productive researcher to deliver that first year unit and at paragraph 15, if you look at paragraph 15 of Professor Warren's witness statement he says: "I did not ask the professor of Japanese to take the first year Asian Studies unit." What if anything do you say to that?‑‑‑It's correct to say that these conversations happened before I commenced at Murdoch. My understanding is that Professor Warren was reluctant to teach the 50 per cent of that course content that related to his area of expertise which meant that in the absence of any other South East Asianist being available to teach the unit, it would fall to the professor of Japanese history who was teaching the other 50 per cent substantive content of that unit to teach the entire unit even though it was outside of her area of expertise.

PN3072

Professor Warren also says, and this is at paragraphs 18 and 24, you can look at those paragraphs, in response to a statement of yours that he was increasingly abrogating his teaching responsibilities that, "He currently" - do you want a glass of water?‑‑‑I have it, thank you.

*** RIKKI KERSTEN XN MR WOOD

PN3073

"That he currently has a full teaching load" - and he refers in paragraph 24 to, "My current full teaching load." What if anything do you say about the proposition that at this stage when you were having these discussions referred to in your witness statement and in Professor Warren's witness statement that Professor Warren had a full teaching load?‑‑‑When I arrived in February 2014 at Murdoch, I became aware that Professor Warren's workload was significantly under the 1000 point level that attaches to a full time equivalent staff member. On further enquiry, it was evident that one of the units that he had listed on his workload had only one student enrolled and this was an external student, therefore, not requiring face to face teaching in the classroom and yet at the workload I saw allocated to Professor Warren, he was being credited with points for coordinating the unit, lecturing in the unit, tutoring in the unit and grading in the unit. I withdrew that unit and the student was advised to take a different course of study or a different unit. This meant that Professor Warren's workload was even further under what was already below the 1000 point level. So, I would say Professor Warren's workload was considerably under what it should have been.

PN3074

Professor Warren then says in his witness statement at paragraph 20 in response to a statement of yours that you instructed Professor Warren to do his share of teaching and that he refused that he did not refuse. What if anything do you say to that?‑‑‑Professor Warren did not ultimately teach in that first year unit even though it was in his area of expertise. He did suggest, I understand, that he might do two guest lectures but that was all he would be able to do. When confronted with his inadequate workload allocation as a result of this, I then sought to make up his workload by asking him to take on a new unit, what we called a Bratts(?) unit and to develop that unit and then teach in the unit so that his workload would come up to the required level of one thousand points. Ultimately he refused to do that too.

PN3075

What happened as a result?‑‑‑At that stage I understand Professor Warren sought the advice and support of the NTEU. Ultimately this led to him negotiation a pre-retirement contract and leaving the full-time employment of the university. However, subsequently he has been appointed as an emeritus professor not on salary in the School of Arts.

PN3076

I want to ask you now about Professor David Hill. Could Professor Kersten be provided with the witness statement of Professor Hill. Have you got that statement, Professor Kersten? I am not sure if there is much importance to this, but there may be. Professor Hill disagrees at paragraph 7 with your proposition which he describes as you saying that his main interest of interest is the ACICIS Consortium. What, if anything, do you say about that?‑‑‑Those are roughly his words to me during my last conversation with Professor Hill when he was still employed in the School of Arts at Murdoch University. He said to me, if I can paraphrase, "The thing I care about the most is my work with ACICIS".

PN3077

And ACICIS is ACICIS?‑‑‑Yes, that's – that's how we pronounce that acronym. When we – when I consider that claim of his that he had other concerns too what influenced my thinking at the time was that on Professor Hill's watch as a senior academic in the area of Asian studies and the teaching of Bahasa Indonesia there was long term decline in load trend for those disciplines and those majors, and - - -

*** RIKKI KERSTEN XN MR WOOD

PN3078

I will just stop you there, Professor Kersten. At paragraph 13 he responds to the proposition that you have just made which you made in your witness statement at paragraph 120 and he says in response to your proposition:

PN3079

Student load in Professor Hill's area was declining.

PN3080

He says:

PN3081

It was by some measures.

PN3082

What, if anything, do you say about that?‑‑‑The measure that matters in this situation is first major enrolments. In other words students by choosing to come to Murdoch and study Bahasa Indonesia or Asian studies as a first major show us that they're coming to Murdoch University in order to study that subject at our university. This is a very important measure in judging how Murdoch's offerings are being received in the marketplace and whether they have genuine appeal to students. So by that measure by the time I arrived at Murdoch and subsequent – subsequently in 2015 and 2016 first major enrolments in Bahasa Indonesia had declined to single digits.

PN3083

Professor Hill takes issue with that proposition. He says at paragraph 17 of his witness statement you're incorrect. He then goes on to say:

PN3084

It's possible that at this time enrolments in a Bahasa Indonesia degree were in single digits.

PN3085

What response do you have, if any, to that?‑‑‑Bahasa Indonesia is a major and this is – this is how we address the performance of disciplines in the school according to enrolments in majors.

PN3086

What's the significance of the proposition you just advanced?‑‑‑It means that we are sustaining a discipline in the school that is barely justifying the workload of a point 8 level A fractional academic at this time. It shows me that the discipline is in deep trouble in terms of viability.

PN3087

You say at paragraph 120 of your witness statement that you raised this with him and he didn't seem to care, and Professor Hill says in response at paragraph 18:

PN3088

It's grossly incorrect to state that I did not care about load decline.

*** RIKKI KERSTEN XN MR WOOD

PN3089

What, if anything, do you say about that?‑‑‑I understood from looking at the situation at the time the fact that the disciplines in which he was the senior academic leader in the school the fact that they were in long term decline, the fact that in the case of Bahasa Indonesia he left or delegated responsibility for the health of that particular discipline to a very junior and at the time casual fractional academic to be an abrogation of his responsibility as a senior academic leader in his discipline in the school.

PN3090

Professor Hill disagrees with the proposition that you advanced at paragraph 120 of your witness statement that he seemed exclusively focused on his work with ACICIS rather than contributing to increasing the student load. He says at paragraph 23:

PN3091

I was not exclusively focused on my work with ACICIS, nor was I neglecting teaching.

PN3092

What, if anything, do you say about that?‑‑‑There's no doubt Professor Hill's made an extraordinary impact with his work developing, possibly creating and leading the ACICIS Consortium. It's something that has really contributed to interactions between Australian higher education and Indonesian higher education entities, it's improved student mobility. All of these things are true, but as part of his work for ACICIS he had 20 per cent buyout funded by the consortium, so he was already reduced to a point 8 fraction in the school in substantive terms. He did not take decisive action or intervene to my knowledge to arrest or reverse the load decline in his principal areas of expertise, and so I took that to mean he was focusing on ACICIS and very successfully, I think that's undeniable, but it was at a cost to the disciplines and to the students in those disciplines in the School of Arts.

PN3093

There is a dispute between the two about that issue, the costs. You say at paragraph 120 of your witness statement that based on your detailed analysis and discussions with the finance team his involvement with ACICIS was costing the school money. Professor Hill responds, and you perhaps want to look at his response at paragraph 35 to 37, what, if anything, do you say about that response?‑‑‑We never did reach agreement on this matter.

*** RIKKI KERSTEN XN MR WOOD

PN3094

I should say 35 to 40, I beg your pardon?‑‑‑Thirty-five to 40, right. I'll just take a look at that. Yes, I can answer your question. I think Professor Hill and I are referring to different measures of viability of this program. If we're talking about financial cost as opposed to other perhaps opportunity cost, in financial terms, it may be true that at a university-wide level, ACICIS which was hosted by Murdoch University at that time was not incurring a net loss to the university and in non-financial terms, such as enhancing student mobility, it was creating a benefit in terms of student experience. I think that's true. My information about viability was exclusively concerned with the School of Arts and the cost to the School of Arts which as Professor Hill refers to in those paragraphs, was required to pay a fee every time a student was selected to undertake an ACICIS unit which usually involved sending the student to Indonesia for some kind of experience. When I asked our finance advisor located in central university services to assess the actual financial impost if any on the School of Arts taking everything into consideration, I was told that there was a net loss financially to the School of Arts. Subsequently, as you referred to earlier, we have been able, through various means, to reduce the deficit of the School of Arts and one of the reasons this has been possible is that I greatly restricted access to ACICIS programs and I did it by asking that only students who majored in Bahasa Indonesia be eligible to apply for and participate in ACICIS programs. Since we implemented that initiative, the school's finances demonstrated a benefit and I believe that is due in part to containing that expense.

PN3095

You say that ACICIS was hosted by Murdoch at the time. Who is it hosted by now?‑‑‑I believe Professor Hill has negotiated a move of ACICIS to the University of Western Australia. This happened soon after Professor Hill took his retirement package.

PN3096

Where is Professor Hill located now?‑‑‑I understand he has some kind of affiliation with UWA, but I don't know what kind of affiliation that is.

PN3097

In the negotiations or discussions that went up to Professor Hill leaving Murdoch, you say that your professional relationship with Professor Hill became poor and hostile at paragraph 121 of your witness statement and if you look at paragraph 43 of Professor Hill's witness statement, he disagrees. What if anything do you say about what is said there?‑‑‑What I recall about the nature of the professional relationship was that it was difficult and for some time it remained professionally proper. However, I do vividly remember in my last conversation with Professor Hill being verbally berated and abused in what I can only take to be a hostile manner for the good part of an hour.

PN3098

When you say your last conversation, you just ran into Professor Hill outside this Commission room 15 minutes ago, haven't you?‑‑‑Yes, I did.

PN3099

How would you describe his demeanour to you then?‑‑‑I said: "Hello." He nodded and I didn't take his demeanour to be friendly.

PN3100

Nothing further in examination-in-chief, Commissioner.

PN3101

THE COMMISSIONER: Cross-examination, Mr Kirkwood.

*** RIKKI KERSTEN XN MR WOOD

PN3102

MR KIRKWOOD: Thank you, Commissioner.

CROSS-EXAMINATION BY MR KIRKWOOD [12.00 PM]

PN3103

MR KIRKWOOD: Professor Kersten, you're currently a member of the senior leadership group within the university?‑‑‑That's correct.

PN3104

What is that leadership group?‑‑‑The leadership group membership has changed over time since 2014. The membership has grown to include more individuals including some directors, for example. Some new appointments to the university senior leadership such as deputy vice-chancellor international are now on that group.

PN3105

Is the correct term for this group the senior leadership group?‑‑‑It's actually a matter of contention. Sometimes it's referred to as the strategic leadership group and sometimes it's referred to as the senior leadership group. This anomaly has been pointed out by the members of the group. We refer to it actually as "SLG".

PN3106

I will refer to it too as "SLG". Are you able to say now who are the members of the SLG?‑‑‑I couldn't now. They have actually grown substantially. I'm not entirely sure now who is there. During meetings, it's often the case that not everybody is in attendance.

PN3107

Just breaking it down a bit just so that we can understand it, when did you go to the last meeting of the SLG?‑‑‑It would have been within the last month.

PN3108

How many persons were present when you attended that meeting?‑‑‑I can't be precise. This number would be discoverable because minutes are taken at the meeting.

PN3109

Let me make it a bit easier for you. I'm not looking for a precise number then. An approximate number. Five or 20 or - - -?‑‑‑Rough guess, in the region of 12 to 20.

PN3110

Are any members of the senate members of the SLG?‑‑‑No.

PN3111

Is the vice-chancellor a member of the SLG?‑‑‑Not any longer.

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3112

Since when, do you know?‑‑‑Since the new vice-chancellor arrived there has been a change in that the provost now usually chairs SLG. I don't know if a decision has been made that the vice-chancellor will no longer chair or whether the vice-chancellor has been unavailable and the provost has acted in her place. I actually don't know.

PN3113

What about deputy vice-chancellors, are any of those members of the SLG?‑‑‑Yes.

PN3114

All of them?‑‑‑Yes.

PN3115

Are there three? Research and innovation is one?‑‑‑Yes.

PN3116

What's another one, do you know?‑‑‑Romy Lawson, the DVCE, education.

PN3117

Education, yes?‑‑‑And he newly appointed DVCI, international, Lyn Karstadt.

PN3118

What does the SLG do?‑‑‑That has become also a subject of discussion. When I first joined the SLG, it was regarded as the senior leadership group making decisions about broad holistic matters relating to the university as a whole.

PN3119

Right?‑‑‑Since then there have been a number of evolutions of the structure of governance in the university. Right now between SLG and the vice‑chancellor there's a new group called the senior executive group or SEG.

PN3120

Yes?‑‑‑We love our acronyms.

PN3121

Yes, we've heard about the senior executive group?‑‑‑So in truth it is my impression and the impression of some others that those strategic decisions are now being made by SEG.

PN3122

Yes?‑‑‑And the strategic or senior leadership group is a place where information is exchanged, where academic leaders are briefed on various developments, but it is not the group that makes the final decision on matters pertaining to the leadership of the university.

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3123

Would it be fair to characterise the SLG as a place where ideas are exchanged and things might be developed and then passed through to the senior executive group? Is that more a characterisation of it, or is it making decisions and seeking to implement them?‑‑‑It is no longer a group where decisions are made and then implemented.

PN3124

Right, okay. Now you're aware that obviously this proceeding before the Commission concerns an application by Murdoch University to terminate the enterprise bargaining agreement?‑‑‑Yes.

PN3125

Yes, and has that been discussed at any meetings of the SLG at which you have been present?‑‑‑To the best of my recollection what has happened at SLG is that the membership has been briefed on decisions that have been made elsewhere.

PN3126

Right, and I'm asking you particularly here about the application by Murdoch University to terminate the enterprise bargaining agreement?‑‑‑Yes.

PN3127

Has that been the discussion or the subject of discussion at a meeting at the SLG at which you have been present?‑‑‑The SLG has been briefed on that decision. It did not make that decision.

PN3128

And when was that briefing?‑‑‑I can't give you a definitive date but I believe it's discoverable if you look at the minutes of SLG. It should be part of minutes.

PN3129

And would that be something that you'd be able to readily obtain?‑‑‑Not readily, no.

PN3130

Right?‑‑‑But I can undertake to do my best to get that information. I cannot tell you how quickly I'll be able to do so.

PN3131

Sure, and was the briefing in writing or was it oral?‑‑‑Oral.

PN3132

And who was it by?‑‑‑There was a group of people involved. Some of them I believe had been engaged as consultants but I cannot tell you from memory exactly who it was.

PN3133

And was it this year or last year?‑‑‑SLG has been briefed on more than one occasion.

PN3134

Right?‑‑‑It's possible that it occurred both late last year and this year but I don't have a precise memory of it.

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3135

And in brief terms could you tell the Commissioner your recollections of the briefings that you've been provided in relation to the termination?‑‑‑It was basically conveying to us as a group that a decision had been made to apply to terminate the agreement. I believe that we were told what that would mean and what it would not mean. That's my best recollection of those briefings.

PN3136

And what were you told that it would mean?‑‑‑That it would mean?

PN3137

Yes?‑‑‑That the current agreement would no longer be applied to the workplace at Murdoch University but that in the absence of an agreement, guarantees would be made by the university to maintain certain basic rights and entitlements by the workforce.

PN3138

Was any time period in relation to that guarantee briefed to the SLG?‑‑‑I can't recall.

PN3139

And then just finally in relation to this topic, you were also told what it wouldn't mean, and could you just explain for the Commissioner?‑‑‑We were specifically told that it would not mean that salaries would be affected, that basic rights about employees entitlements would not be affected, the basic terms of employment for employees of the university would not be affected.

PN3140

And was it explained at that briefing how that wouldn't be affected, any further detail?‑‑‑No it was not.

PN3141

Now I just wanted to ask you some questions about student numbers. The student numbers for students enrolled in a course in the School of Arts for semester 1 this year were finalised on 25 March of this year, weren't they?‑‑‑I believe that was the census date.

PN3142

And that's when they were finalised?‑‑‑As far as can be finalised, yes.

PN3143

And what is that number?‑‑‑Off the top of my head I don't know. I know that it is less in some categories than the previous year.

PN3144

What is the total number; do you know the total number?‑‑‑I can't tell you off the top of my head.

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3145

Is that something that you'd be able to readily get, the total number of students enrolled in the School of Arts as at 25 March 2017, over lunch?‑‑‑Over lunch I doubt it.

PN3146

Why?‑‑‑At the moment partly because I'm here in these proceedings.

PN3147

Here, I understand, yes?‑‑‑I have staff members who are conducting meetings that I would otherwise have been doing myself. I have my PA, who might have been able to do it, preparing to go on long term leave and briefing a junior casual who will be stepping in.

PN3148

That's enough probably on that subject. That's fine?‑‑‑So I genuinely think I cannot guarantee that I could readily obtain that information over lunch.

PN3149

Now in your first statement you set out the total number of students enrolled in the School of Arts as at 3 March 2016, didn't you?‑‑‑Yes.

PN3150

And you said that:

PN3151

New student numbers for semester 1 of 2017 will not be finalised until 25 March 2017.

PN3152

Didn't you? That's what you said in your first statement?‑‑‑Can you refer me to right part please?

PN3153

Yes, I can. It's in court book 739 and that's in volume 2?‑‑‑In which paragraph?

PN3154

It's paragraph 17. Do you see there that you say:

PN3155

As at 3 March 2016 the number of students enrolled in courses offered by the school were 2,412. New student numbers for semester 1 of 2017 will not be finalised until 25 March 2017.

PN3156

?‑‑‑Yes, that's right.

PN3157

And obviously that was after your statement, and looking at this statement, that was 4 March 2017?‑‑‑Yes.

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3158

And then you made another statement that Mr Wood took you to and that is dated 19 June 2017 isn't it?‑‑‑The second statement?

PN3159

Yes, it is dated 19 June 2017?‑‑‑I believe so.

PN3160

And in that second statement you did not provide the student numbers for semester 1 of 2017 as at 25 March 2017, did you?‑‑‑I believe I did not.

PN3161

Yes, and in fact you didn't provide any other update as to the current number of students, total number of students, enrolled in the School of Arts this year at all, did you?‑‑‑Not so far, no.

PN3162

Well, when you say not so far; you don't have an intention of doing it some later time, do you?‑‑‑You've just been asking me if I can obtain the information.

PN3163

Yes. Yes, that's true?‑‑‑I have said to you I don't believe I can - - -

PN3164

You think you might be able to?‑‑‑- - - do it immediately.

PN3165

Yes?‑‑‑But I'm not saying I refuse to do it.

PN3166

Yes. Now you said in answer to an earlier question of mine that - I think you said some of the numbers in some of the - was it courses - had gone down?‑‑‑We have categories.

PN3167

Categories. That some of the numbers in some of the categories have gone down?‑‑‑Yes.

PN3168

As you're giving evidence now, is it your evidence that you don't know the total number of students enrolled in the School of Arts. You have said that? You agree with that?‑‑‑I can't give you an exact accurate number right now on the spot, no.

PN3169

An exact number, yes, sure. Do you know whether it's more or less than 2412?‑‑‑2412?

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3170

Sorry, I should take you back to be fair to your statement. So you have got page 739 open?‑‑‑Yes, I do.

PN3171

You say that as at 3 March 2016, the number of students enrolled in courses offered by the school were 2412. All I'm seeking to understand is, do you know whether the current number of students enrolled in courses offered by the school is greater or less than 2412 as you're giving evidence now?‑‑‑My understanding is that commencing load or commencing students is down. Continuing load, which would flow on from this number, logically would be more or less the same.

PN3172

Could you please go to court book 740? So just turning the page for a moment, Professor, and if you could go to paragraph 25, and this was a matter that you did touch on in part in answer to some questions by Mr Wood in relation to Professor H. But I just want to ask you some more general questions. You say at paragraph 25: "In 2013, the School of Arts had a budget deficit of approximately 3 million. Since I have been dean, we have been successful in reducing this to a deficit of approximately 660,000." Now, just in relation to that, you commenced in February 2014?‑‑‑Correct.

PN3173

Was it still $3 million at that time when you commenced?‑‑‑In late 2013, the university offered a round of voluntary redundancies to staff in the School of Arts to address the 3 million approximate deficit that the university believed existed at that time. Approximately 15 full-time equivalent staff subsequently left the university. I cannot tell you exactly when they left, what the costs were and the exact state of the budget when I commenced, but those voluntary redundancies were under way as I began tenure at Murdoch University.

PN3174

Would it be fair, and tell me if you disagree, but is it fair to say that the budget deficit was around $3 million when you started?‑‑‑It was around 3 million 2013, that's what I'm saying.

PN3175

Do you know whether it was significantly less than $3 million when you started?‑‑‑I would suggest that the voluntary redundancies and the costs resulting from those redundancies would have been ongoing in early 2014.

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3176

In your statement, you say: "Since I have been dean, we have been successful in reducing this to a deficit of approximately $660,000." Is that the current amount of the budget deficit approximately as at today's date?‑‑‑We have just had a budget reforecast exercise in the university. At that time, we were told that commensurate to this period last year, we were $1.1 million behind in our projected position. However, through various means, we were able to find funds to negate that current additional deficit completely without any redundancies or cancellation of programs. This implies to me that - and the budget forecast was clear that the School of Arts is on track to meet its projected gross margin of xxx per cent. That we are on track in the different categories of expenditure with the exception of our research income which looks like it's going to fall below our initial projection for this calendar year.

PN3177

Apart from that matter that you have just raised with me, would you agree with me in general terms that under your leadership as the dean, the School of Arts is doing well?‑‑‑It is improving its position, but it needs to do a lot better.

PN3178

Can I just ask you about some of the improvements that have been done and if you could just go to page 748 of your statement or 748 of the Commission book and then to paragraph 75. I just wanted to take you to a part that you corrected, you will recall there. So at paragraph 75, you say: "Our budget deficit is approximately $660,000 and this has come down from $3 million in 2012 thanks in part to the hard work of my school manager, xxx, in actively managing the leave roster." Could I just ask you, how has she managed to do that? Could you just tell the Commission how she has managed to actively manage the leave roster to achieve what appears to be some real benefits and savings for the School of Arts?‑‑‑Leave is difficult. If we have academics in the school who are deemed to hold excessive leave balances, whether that be annual leave or long service leave. We are only able to direct academics, I understand under the agreement, to take that leave to reduce their balance, and this is specified, I understand. But we also need to do this six months in advance of the leave we direct they take. That's my understanding of that relevant part of the EA. If we look at the current leave liability which is approximately 439,000 as per my statement and that is annual leave which is a school liability, that balance needs to be produced through time consuming interactions with each individual member of staff and xxx has actively and, I should say, proactively liaised with individual academics seeking to prompt them to consider whether they wish to take leave.

PN3179

Would this also include academics who haven't necessarily accrued 300 hours of untaken leave, but other academics? Do you know precisely how she has managed to identify the academics and the other staff that she would actually go and have these discussions with?‑‑‑There are various systems available within the university in connection with our People & Culture office that monitor each individual staff member's leave and xxx has access to those balances.

PN3180

Was that something that she was doing before you started or was that one of your initiatives to really improve this budget deficit?‑‑‑As a leadership group, myself, xxx, my deputy dean, Jim Trotter, sought to prioritise our annual leave budget liability and together considered how we might best do that and who might best monitor that activity because we realised that liability on its own could substantially reduce our carry over deficit as a school.

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3181

Would you agree with me that that initiative, if I could call it that, and the active management of this annual leave has been a success?‑‑‑It has been partly successful, the fact that there is still a $439,000 plus deficit in existence is testament to the difficulty of doing this at present, and these difficulties include the inability of the school to mandate or direct that leave be taken unless it's dubbed excessive. Academics can reverse leave that they put into the system, so even if xxx liaises with an academic, encourages them to plan their leave, facilitates workforce planning to support individuals taking leave, even after all that there's nothing to stop each individual academic simply entering the system and reversing the leave request.

PN3182

I will ask you some further questions about leave when we come to it, but maybe just dealing with precisely that matter now. Under your management of the School of Arts is it your evidence to the Commission that the way in which an academic can in effect book leave is just to go onto a computer system and just book it without checking whether that is approved by their supervisor or any other person in management, is that right?‑‑‑The usual thing is that an academic will enter their own leave request into the system. We would expect academics to consult their colleagues if the leave they propose to take occurred during a teaching period. We would also decline a leave request if it meant that an academic who had been teaching in that semester would miss the Board of Examiners meeting which is essential for every active teaching academic in the school.

PN3183

So can I just ask you is there a system in place in which all leave requests that are entered into the system by let's just say an academic are all then subsequently reviewed and approved or denied; yes or no?‑‑‑Yes.

PN3184

Just going back to the earlier questions that I was asking you just so that we can complete this topic, I asked you whether it had been a success and you said it had in part and that there was still a deficit and work to do?‑‑‑That's correct.

PN3185

You would still agree with me that the initiative has been a success in bringing the budget deficit down, but there's still work to do?‑‑‑It has been partially successful, but insufficiently so.

PN3186

But you are still continuing with that initiative to still take steps to see if you can still bring that budget deficit down, aren't you?‑‑‑We continue to try to reduce the deficit, but we have no means at our disposal in the current EA arrangement to mandate leave that has been accrued unless it is dubbed excessive.

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3187

I will come back to annual leave because it's a separate topic, but I will ask you some questions later on about the ability to mandate under the award and so forth, so we will come back to that in a moment.

PN3188

MR WOOD: I don't think it is a separate topic, because I think a fair reading of the witness' answers is the initiative that she's referring to is the annual leave initiative referred to in the second part of paragraph 75. Just from clarity from reading the transcript that's what the answers are directed to.

PN3189

MR ATTIWILL: Sure, of course. As part of your role in the SLG have you told other deans at other schools about the initiatives that you're undertaking in relation to the bringing the annual leave liability down?‑‑‑Reducing both categories of leave, annual and long service leave, has frequently been put before not only SLG but also deans meetings. All deans have been able to see what the current state of play is for each school in terms of each category of leave liability. So it's transparent in that we know how each school is faring and how much further we all have to go.

PN3190

Could you just please go to Commission book 741, so this is your first statement?‑‑‑741?

PN3191

Yes, at paragraph 32?‑‑‑Yes.

PN3192

You say:

PN3193

Over the last year I have been reviewing the Bachelor of Arts Degree that Murdoch offers. This has been a massive undertaking and has included rethinking the entire curriculum, traditional course content and teaching methods.

PN3194

Is this something that you have termed the curriculum innovation project, have I got that right, or is that something else?‑‑‑No, it's referred to as the BA review.

PN3195

Are you familiar with the term "Curriculum innovation project"?‑‑‑I don't think it's a term that applies exclusively to the School of Arts.

PN3196

Are you able to tell the Commissioner what that is? It's just that if you go to paragraph 43 of your statement on page 743 of the Commission book you say:

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3197

For example I have spoken to People and Culture about whether the changes I am proposing to make as part of the curriculum innovation project qualify.

PN3198

Let me ask you this question; where you make a reference to curriculum innovation project in paragraph 43 of your first statement what's it a reference to?‑‑‑It is a reference to the BA review, and it is an accurate statement of what the BA review actually represents.

PN3199

If you could just go to Commission book 774 for a moment. This is in your second statement, at paragraph 132. You say there:

PN3200

In an ideal world I would like to introduce some new courses in the School of Arts. For example I believe a global studies course would do well.

PN3201

Are you able to tell the Commissioner whether you as the dean have developed a proposal in relation to the global studies, or is it very much still a general idea?‑‑‑Global studies was one idea that came out of brainstorming with academics across the school from a range of disciplines. When we collectively wanted to look at how we could improve the appeal of the suite of offerings within the Bachelor of Arts at Murdoch University global studies was one idea that was thrown up. I believe the Vice-Chancellor also referred to this as an example of a popular type of offering that had been very successful at her previous institution at the University of Wollongong and had attracted significant international onshore student enrolments.

PN3202

Thank you. I wanted to ask you some questions just in relation to performance management.

PN3203

THE COMMISSIONER: Mr Kirkwood, I am wondering whether that's - - -

PN3204

MR ATTIWILL: I am going to take that as a compliment if you address me as Mr Kirkwood.

PN3205

THE COMMISSIONER: I am sorry. What that does is reinforce what I am about to say. I suggest we adjourn here for lunch because we are moving into a new area - - -

PN3206

MR ATTIWILL: Yes.

PN3207

THE COMMISSIONER: - - - and we will resume at – it's now 12.32, 1.30.

*** RIKKI KERSTEN XXN MR KIRKWOOD

PN3208

MR ATTIWILL: Thank you, Commissioner.

<THE WITNESS WITHDREW [12.32 PM]

LUNCHEON ADJOURNMENT [12.32 PM]

RESUMED [1.34 PM]

PN3209

THE COMMISSIONER: Mr Attiwill.

PN3210

MR ATTIWILL: Thank you, Commissioner.

<RIKKI KERSTEN, RECALLED [1.34 PM]

CROSS-EXAMINATION BY MR ATTIWILL, CONTINUING [1.34 PM]

PN3211

MR ATTIWILL: Professor, I might actually just ask you - I was about to ask you some questions in relation to performance management, but I might just ask you some questions about what you raise at paragraph 7 of your first statement at Commission book 737. Have you got that, Professor?‑‑‑Yes.

PN3212

You see there you say: "From 2006 to 2007 inclusive, I was employed as the Dean of the Faculty of Asian Studies and the Dean of the College of Asia and the Pacific at the Australian National University." Then you say: "In this role, I led a change management process within the faculty and the college to bed down the college structure." And then you conclude: "The structure has remained in place to the present." Could you tell the Commissioner what this change concerned?‑‑‑At the time, the ANU's structure was built around research schools and faculties. These had different type of funding arrangements. In particular, research schools were funded through what we call the block grant from the Federal Government and they had quite a bit of autonomy in how that grant was spent or dispensed. Before my arrival at the ANU, the then vice-chancellor decided to engage in a university-wide restructure and created I think six new colleges, one of which was College of Asia and the Pacific. When I arrived, it was into a brand new entity called College of Asia and the Pacific.

PN3213

But I am asking you when in your statement at paragraph 7, you say, "In this role, I led a change management process", what I'm asking you is to identify to the Commissioner what was the change management process that you led?‑‑‑This process involved dealing with staff whose place in the school would change as a result of the changes that occurred at the ANU University, change of role, in some cases individuals would move to other areas. It was that kind of change backed up by budgetary changes associated with the new structure.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3214

Was that a change that you'd describe as affecting the whole faculty and the whole college?‑‑‑Yes.

PN3215

How many staff were affected by that change process?‑‑‑I would say all. All of the staff were affected in that instead of being divided between research and teaching functions backed up by separate entities, instead there was more of a unification of staff in terms of their entitlements to research and obligations to teach.

PN3216

When in 2006 did you commence at the Australian National University? What month?‑‑‑I remember it was cold, so I'm assuming June - - -

PN3217

That's half the year?‑‑‑June or July is - - -

PN3218

June or July. Right, okay. With the change management process that you led, had that already commenced, that part of it?‑‑‑Yes.

PN3219

Do you know how long that change management process had been going at the time you commenced in that role?‑‑‑I can't say.

PN3220

Was it a number of months?‑‑‑I don't know.

PN3221

Right, okay. Well, given what you knew about what had taken place in relation to the change management process at the time you commenced, you're not able to say whether it had been a couple of months or a year?‑‑‑I'm sorry.

PN3222

That's all right. When did you cease your employment at the Australian National University? What month in 2007?‑‑‑I didn't cease employment.

PN3223

Right?‑‑‑I transferred to a different role.

PN3224

I see. When did you transfer? What month in 2007?‑‑‑December, I believe.

PN3225

In the period – I think you've said June or July in 2006 to December 2007 - you were leading this change management process?‑‑‑Yes, as part of my overall responsibilities.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3226

Throughout that period, you were doing that?‑‑‑Yes.

PN3227

You say that you were leading it. You were also obviously assisted in that leadership of that change management process by other persons within the college and the faculty?‑‑‑More so with central human resource areas.

PN3228

When you left – or you transferred, I think you said, in December of 2007, did you then cease to have any further role in the change management process after that date?‑‑‑Yes.

PN3229

Would you describe your leadership of that change management process in 2006 and 2007 as a success?‑‑‑I take it that the structures that were new when I began my position remain in place to this day.

PN3230

That's right. So you would describe it as a success?‑‑‑I think so.

PN3231

During that change management process at the Australian National University, you obviously became familiar with the enterprise bargaining agreement that was in place at that time?‑‑‑Not with the entire agreement but with relevant sections, but always with advice and counsel from HR.

PN3232

Yes. So you were obviously then familiar with the change management process clause?‑‑‑I couldn't cite it.

PN3233

I'm not asking you to cite it, but you were familiar with it. Generally familiar with it?‑‑‑Are you asking was I familiar with it back then?

PN3234

Yes?‑‑‑I was familiar with relevant aspects of it.

PN3235

Sorry, this is my fault, so let me – when you say "of it", is that of the clause itself?‑‑‑Yes.

PN3236

Now, could I provide you with a copy of this document then, which is a copy of the Australian National University Enterprise Agreement 2005‑2008, and a copy for our friends. I should say, Commissioner, we have drawn a line in the sand on having too much paper laying around, so what I - - -

PN3237

THE COMMISSIONER: If you have, I think I drove straight over it.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3238

MR ATTIWILL: That's right. What is being provided to you, Commissioner, and to the witness and to our learned friends is an extract of it, but I do have the full copy here particularly if my learned friend wishes to see it.

PN3239

THE COMMISSIONER: No, you win that argument. That's fine.

PN3240

MR ATTIWILL: I just didn't want to photocopy the whole thing.

PN3241

You will see that that is headed "The Varied Australian National University Enterprise Agreement 2005‑2008". If I could just ask you to go to page 26. You will see there is a clause there "Managing change" . If it would assist you, I could provide you with a full copy of this agreement, but otherwise I will ask you questions in relation to this. If you would at any time like to see the full agreement, just let me know, professor. This is the enterprise agreement, is it not, that you were concerned with in the period 2006‑2007 at the Australian National University as part of this change management process? Is that correct?‑‑‑Yes.

PN3242

If you go to that page that I referred to, clause 42 on page 26 "Managing change", it goes from 42.1 to 42.4.2 on the next page, page 27. Now, I don't require you - but I want to give you a fair opportunity - to read it word for word, but could you just familiarise yourself with that clause for a moment. Maybe in particular looking at clause 42.3, the formal change process?‑‑‑42 point - - -

PN3243

Point 3 on page 27. The questions I wish to ask you, professor, relate to 42.3 and 42.4.1. Just to make that plain, you will see that on page 27 there is a heading "The formal change process". If you could just read those two paragraphs to yourself and then the next paragraph, which is 42.4.1. I'm not going to ask you lots of questions about it, but just a few?‑‑‑I have had a quick skim.

PN3244

You will see that under 42.3.1 on page 27 it says:

PN3245

Subject to 42.2.3, the provisions of this subclause will apply where a specific change proposal is made which is likely to lead to one or more of the following: relocation of work area.

PN3246

Now, just to make it plain, that was going to be one of the matters that was going to be the subject of your change. Is that correct?‑‑‑(No audible reply)

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3247

Using your best recollection. I know it's 10 years ago?‑‑‑Indeed. At this time I can't recall a specific example of that.

PN3248

Yes. Thank you. It goes on:

PN3249

Elimination of positions; a change of hours of operation; introduction of significant technological change; or a significant change to work practices or impact on conditions, including change that would be likely to lead to changed responsibility levels.

PN3250

I can ask you questions about breaking up those, if necessary, but you agree with me that the change you outlined in general terms related to a number of those matters, don't you?‑‑‑Some of them.

PN3251

Yes. Now, you see at 42.3.2 it says:

PN3252

Where there is a specific change proposal, the university will issue documentation setting out the change to directly affected staff.

PN3253

Then it says "USCC‑SC chair", and the documentation will include certain things. You recall as part of the change management process that you led, the documentation was in fact provided?‑‑‑Not by me.

PN3254

No?‑‑‑Because it commenced before my arrival at the ANU.

PN3255

But the university continued to issue documentation in relation to the change during the time that you led it?‑‑‑I assume they did.

PN3256

Yes. Similarly, at clause 42.4.1, it just sets out some matters in relation to consultation. It says:

PN3257

Staff members as groups and where they choose their representatives will be consulted in relation to a specific change proposal.

PN3258

Then it says:

PN3259

The consultation will include a number of matters.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3260

Can you recall during your time of leading it that there was consultation with staff members? I'm not asking precisely what sort at the moment, but during the time that you led the change from June‑July 2006 to the end of 2007, there was consultation with staff?‑‑‑Consultation with staff about the structural change had happened before my arrival.

PN3261

Yes?‑‑‑What was happening during my tenure there was the bedding down of that change.

PN3262

Yes, but I'm asking you whether or not there was still consultation with staff members?‑‑‑On this specific matter?

PN3263

Yes?‑‑‑On formal change process as per this clause?

PN3264

Yes, on the change management process that you were leading. Let me just - rather than getting caught up in definitions. When you were leading the change from June, July 2006 to the end of 2007, are you aware whether the university continued to consult with staff members about those changes?‑‑‑I - as far as I can recall, and it is some time ago, some individuals were I believe in consultation with HR as a result of changes that had occurred prior to my arrival. But I was not part of those discussions.

PN3265

Yes, those particular consultations?‑‑‑No.

PN3266

Commissioner, I tender that document.

PN3267

THE COMMISSIONER: Yes, the extract from the - sorry, the document which is headed (indistinct) "Australian National University Enterprise Agreement 2005 - 2008" which is an extract of that agreement we will mark as exhibit R20.

EXHIBIT #R20 EXTRACT TITLED "VARIED AUSTRALIAN NATIONAL UNIVERSITY ENTERPRISE AGREEMENT 2005 - 2008

PN3268

MR ATTIWILL: Now I want to ask you some questions just where we left off before lunch about performance management. When I use the term performance management do you know what I mean to convey by that?‑‑‑I'd prefer it if you elaborated.

PN3269

Yes, well if you could go to paragraph 64 of your statement at Commission book 746 please?‑‑‑Six.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3270

I just want to make sure that when I refer to it, that we're referring to the same thing. Do you see Commission book 746 at paragraph 64 you use the words "performance management issues" and so could you tell the Commissioner what you mean by performance management issues?‑‑‑In principle I mean things that may arise during the course of an annual performance development review with colleagues when an area of their performance is not up to scratch, not what I would expect, and we discuss how that might be addressed. That's one example.

PN3271

And indeed performance management issues might arise outside of an annual review?‑‑‑Yes.

PN3272

For example if it's brought to your attention that an academic is performing poorly then that's not going to be left to the annual review, that might be immediately taken up?‑‑‑If there are issues triggering my involvement, yes.

PN3273

And so with performance management issues is that the whole categories of matters that concern really the below par performance of employees where they're not performing adequately in their roles?‑‑‑It can include that.

PN3274

What else can it include?‑‑‑It can include also things like misconduct or an interaction between a teacher and a student that leads to a complaint that needs investigation.

PN3275

So just to be clear, we've got if we could say three matters that you've identified. So we've got misconduct. We've got what might be termed some form of inappropriate conduct, and then we've got conduct that is where the person is performing really their role poorly?‑‑‑Yes.

PN3276

And that's what you'd describe as performance management issues?‑‑‑They are examples of performance management issues.

PN3277

Right and you'd agree, wouldn't you, that performance management issues in the School of Arts do not arise on a regular basis. Rather, they occur irregularly?‑‑‑That's what I said in my statement.

PN3278

Well then it's true, isn't it?‑‑‑That's my understanding. It's my experience.

PN3279

Yes. Now just remaining at paragraph 64 of your second statement - of your first statement, you say in the second sentence:

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3280

However when they do arise they require intense focus and can take up to 10 to 20 hours of my time in a compressed period. This includes time taking advice, familiarising myself with the detail of the agreement, checking facts and ensuring I'm properly briefed for meetings with affected staff and their representatives.

PN3281

So just dealing with that in those terms, obviously if something is brought - if you don't have an immediate knowledge of something, so in other words somebody hasn't acted inappropriately towards you or you haven't observed something yourself, obviously the first critical thing, you'd agree with me, is for you to really find out exactly what has gone on, gather the relevant facts?‑‑‑Yes.

PN3282

Yes and that can, depending on what the event is or the inappropriate conduct, can either take a small amount of time or a large amount of time to gather all the relevant facts?‑‑‑Yes.

PN3283

Now at paragraph - just going back, turning the page back to Commission book 745 at paragraph 63, you provide an example of a performance management issue that was dealt with and dealt with by you?‑‑‑Yes.

PN3284

In your first statement you also deal with the case of somebody who we refer to as Ms P?‑‑‑Yes.

PN3285

And in fact in your second statement you deal with the case of Ms P in considerable detail?‑‑‑Yes.

PN3286

And in your second statement you also deal with the case of the two professors?‑‑‑Correct.

PN3287

Or cases of the two professors. In relation to the first case that's set out at paragraph 63, you say - because I'll come back to ask you about Ms P in a moment - you say:

PN3288

As a contrasting example -

PN3289

Which you were contrasting to Ms P. you say:

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3290

- in around March 2015 I dealt with a matter involving an allegation that an employee had spoken to another employee in an inappropriate manner. I had an informal conversation with the employee against whom the allegations had been made, who immediately acknowledged their behaviour had been inappropriate and expressed remorse, and then the employee also apologised to the other employee who had been the recipient of the inappropriate comments.

PN3291

Now in relation to that matter are you able to say what was the rough time period, or if you're able to say more specifically the time period between the matter being brought to your attention and you taking the prompt action to ensure that the employee apologised to the other employee? Was it done quite quickly?‑‑‑Yes.

PN3292

Yes, in what sort of time, can you recall?‑‑‑When I received multiple reports of the interaction I immediately spoke to a number of people including the recipient of the comments and witnesses, people who had been present. And then I immediately thereafter invited the person who had made those comments to a meeting.

PN3293

Yes and would you agree with me that you took swift action?‑‑‑As swift as I could.

PN3294

Yes, I'm not saying it was - I'm not going to cross‑examine you about it being unreasonable, but you took swift action?‑‑‑Yes.

PN3295

And it had a positive impact overall on the school?‑‑‑It did.

PN3296

Yes, because you conveyed to everybody that that sort of inappropriate conduct is just not going to be tolerated in the school of which you were the dean?‑‑‑Correct.

PN3297

Now in the case of Ms P, in your second statement, and if I could just go to that for a moment at Commission book 755 at paragraph 8 do you see there's a heading to paragraph 8 "Ms P" and then the next heading in your statement that concerns another matter is 11 pages on at Commission book 765 headed "Ms C". Do you see that?‑‑‑(No audible reply)

PN3298

And you deal with the circumstances of Ms P and the interaction between Ms P and the School of Arts in those 11 pages, don't you?‑‑‑(No audible reply)

PN3299

You attach a number of documents to your statement that concern Ms P?‑‑‑Yes.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3300

If I could just take you to those for a moment just to identify which documents relate to Ms P, and this is also, Commissioner, I am seeking to do this for the Commission's benefit because they're redacted. So I might just identify those just so that we know what we are talking about. If you go to Commission book 782 you will see annexed to your statement is a document from Murdoch University, but with the name redacted, but that's a document that's concerns Ms P as I think you also say that in your statement, and is it true that the document then that's at Commission book 863 concerns something else, it concerns Ms C?‑‑‑So you're asking me – I'm sorry, can you repeat that page number for me.

PN3301

Yes, I can. So the document at Commission book 782 concerns Ms P, is that correct?‑‑‑Yes.

PN3302

Then I am just asking you is the document that's at Commission book 863 that concerns Ms C?‑‑‑I'm just looking for 863.

PN3303

Tab 60?‑‑‑Thank you. That's correct.

PN3304

Now, with these documents that you attach to your statement are they stored on electronic file, and that's fair enough that you do go to look at it, so I should be fair. So just going to Commission book 782?‑‑‑They're typed so I would assume so.

PN3305

That they're stored electronically?‑‑‑I would assume so.

PN3306

You set out a number of documents in relation to Ms P. That's not the entire file though, is it?‑‑‑As far as I'm aware that constitutes the file.

PN3307

And upon what basis do you say that?‑‑‑I was involved in this process throughout, but at a higher level. I'm not aware of documents passing in front of me that are missing here.

PN3308

Yes. I won't ask you any further questions about that. That's right. Did you read all of the attachments that concern Ms P that are attachments to your statement, did you read them all before you made your statement?‑‑‑I had read them all before I knew I would be giving a statement.

PN3309

How long before you made your statement would you have last read these documents?‑‑‑The dates are on each of the documents. I would have been familiar with those documents very close to those dates.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3310

It's fair to say that you describe the process involving Ms P as a long drawn out process?‑‑‑Yes.

PN3311

And you have described it as an unmitigated disaster?‑‑‑I do.

PN3312

Would you describe it as a very poor process?‑‑‑It's poor partly because it's so drawn out and destructive.

PN3313

But would you describe it as a poor process, what happened here is a poor process?‑‑‑The process outlined in the agreement was followed to the best of everyone's ability and I don't believe that is a good process.

PN3314

I am not asking you a question as to whether you're taking – yes, I can see what you're saying there. I am not asking you whether the university engaged in a process that was in breach of the agreement, let me make that plain, but let me just ask you some questions. You identify this process as commencing in August 2015 and then as far as I am able to determine from your statement when you signed this statement on 19 June 2017 that it was still an unresolved process at that time?‑‑‑It was ongoing. Are you – are you referring to the document that starts on 784?

PN3315

I am not referring to any document at the moment, what I am directing your attention to is you describe a process involving Ms P which is performance management process - - -

PN3316

MR WOOD: I think the witness just has to be told she has to actually say "Yes" rather than nod.

PN3317

WITNESS: I'm sorry.

PN3318

MR ATTIWILL: She's only nodding while I'm asking her a question, I am still obtaining an answer.

PN3319

MR WOOD: They're all questions.

PN3320

MR ATTIWILL: No, they're not. You describe a process in relation to Ms P that commences in August 2015; that's correct?‑‑‑Yes.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3321

At the time that you made this second statement on 19 June 2017 that process was ongoing at that time?‑‑‑Yes.

PN3322

Now, do you agree that the university provided Ms P with generous timeframes in which to improve her performance?‑‑‑Yes.

PN3323

In fact if you go to Commission book 857 for a moment, and just let me know when you have got that, Professor?‑‑‑I've got it.

PN3324

You will see that that's a letter from the university – let me – you better identify it – that is a letter from the university to Ms P?‑‑‑Yes.

PN3325

Dated 19 May 2017, and what that is as it's headed it's an unsatisfactory performance show cause, and it's a letter that goes through on page 1 for example the previous unsatisfactory performance - - -

PN3326

THE COMMISSIONER: Sorry, what page are we at, Mr Attiwill?

PN3327

MR ATTIWILL: We are at Commission book 857, tab 59 I believe. Just to go back a step you will see that that's a letter on page 1 it goes through the previous unsatisfactory performance, Professor?‑‑‑Yes.

PN3328

Then on page 2 at about three-quarters of the way down the page it has a heading "First formal unsatisfactory performance process"?‑‑‑Yes.

PN3329

On page 859 it goes through the outcome of the first unsatisfactory performance process. You see that?‑‑‑Yes.

PN3330

Then I wanted to take you to is at page 861 under the heading "Show cause" it says:

PN3331

The university has conducted a thorough and extensive performance management process with you over the last 21 months.

PN3332

You would agree that that's accurate?‑‑‑Yes.

PN3333

Then it says:

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3334

You have been provided with generous timeframes for which to improve your underperformance as well as being provided with adequate training for tasks and further access to other supportive training.

PN3335

Do you see that?‑‑‑Yes.

PN3336

You would agree with those statements that are set out there?‑‑‑Yes.

PN3337

In your second statement, if I could just go back to that for a moment, at paragraph 11, and that is on page Commission book 755, you start to describe more detail about the processes that were involved, and the first process that you deal with is under a heading – sorry, do you have that, Professor?‑‑‑I have 755.

PN3338

Yes. So at paragraph 11 you have your first heading in relation to Ms P "Informal process clause 63.3"?‑‑‑Yes.

PN3339

And we are dealing with clause 63.3 because Ms P was a professional staff member, not an academic staff member, is that correct?‑‑‑Correct.

PN3340

At paragraph 11 you set out, or you commence a chronology of the informal processes. You see that?‑‑‑Yes.

PN3341

At paragraph 13 you say:

PN3342

Between August 2015 and May 2016, xxx engaged in informal counselling of Ms P

PN3343

?‑‑‑Yes.

PN3344

And that's a period of nine months?‑‑‑Yes.

PN3345

At paragraph 28, you describe the formal process?‑‑‑Yes.

PN3346

And you'd agree with me - well, let me just - so that I can take you to it - at paragraph 28 you say: "On 20 May 2016" - I think we should be referring to that person as "Ms S", shouldn't we? I believe, yes. I'll refer to her as "Ms S"?‑‑‑Understood.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3347

"Ms S met with Ms P and a representative of People & Culture, Daniel Griffiths, to discuss the commencement of a formal performance management process." And you understand the commencement of the formal process is the development of a performance improvement plan?‑‑‑Yes, I do.

PN3348

You will see that what you do then is you give a chronology in paragraphs 30 to 38 about matters that concern the performance improvement plan?‑‑‑Yes, yes.

PN3349

And mainly Ms S's involvement in that, the to-ings and fro-ings in relation to the performance improvement plans?‑‑‑That's correct.

PN3350

And the monitoring of those matters. Now, if I could ask you, so with the chronology, I'm at paragraph 38 at Commission book 760. I want to take you to the date of 24 October. You say: "On 24 October 2016, I provided my comments on the PIP report" - which is the performance improvement plan, is it not?‑‑‑Yes.

PN3351

"In accordance with clause 63.4 of the agreement. My comments included that while there had been some improvement in some areas of Ms P's performance, it was still not up to the required standard"?‑‑‑Correct.

PN3352

You would agree with me, and tell me if you don't, that as at 24 October 2016, your view was that this PIP process had been a proper process?‑‑‑Proper in the sense that it involved an informal counselling period. Proper in that it sought to be constructive and cooperative and proper in the sense that it gave Ms P an opportunity to engage and to improve.

PN3353

In those terms, you would describe it, though, as a proper process?‑‑‑In those terms, yes.

PN3354

You would agree that as at 24 October 2016, that your view was that the process had considered all aspects of performance?‑‑‑Yes, it had.

PN3355

It, in fact, had allowed for extenuating circumstances including ill health?‑‑‑Yes.

PN3356

And leave on Ms P's behalf or, sorry, on Ms P's part?‑‑‑Yes.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3357

You also believed at the time that the process had allowed a generous amount of time to ensure that the outcomes and conclusions were fair?‑‑‑Yes. However, these elements which we understood to be part of our obligations under the agreement took an inordinate period of time.

PN3358

I didn't ask you that question. I asked you whether you considered or you believed that the PIP process had allowed a generous amount of time to ensure that the outcomes and conclusions were fair. Was that your belief or not?‑‑‑It was - it was a generous period of time.

PN3359

That ensured that the outcomes and conclusions were fair. That was your belief at the time, wasn't it?‑‑‑I did believe that.

PN3360

In fact if you go to Commission book 821, you sent a letter - or let me just - this is in volume 2, Commissioner - at Commission book 821 you sent a letter to Ms Narustrang who is the Director of People & Culture in which you refer in the first paragraph to: "Now having received the unsatisfactory report." You see that in the first paragraph?‑‑‑Yes.

PN3361

And then the matters that I have just taken you to, you set out in paragraph 2?‑‑‑Yes.

PN3362

And then in paragraph 3, you say: "Having considered the abovementioned material, I feel that while there has been evidence of improvement on Ms P's part in the area of professional conduct, three other areas of performance continue to cause concern." And then you identify them?‑‑‑Yes.

PN3363

In your statement or in your statements, I should say, so both of them, nowhere in your statements do you set out anything positive about the process, do you? You don't say it was a proper process anywhere in your two statements, do you?

PN3364

MR WOOD: She just needs to be able to answer the first question.

PN3365

THE WITNESS: Can you please repeat your question?

PN3366

MR ATTIWILL: Yes. In your two statements, nowhere in your two statements do you describe it as a proper process, do you?‑‑‑As far as I recall, I don't say that.

PN3367

You also don't say in your two statements that it had allowed for extenuating circumstances including ill health and leave on Ms P's behalf or part. You don't set that out?‑‑‑No, I don't.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3368

You also don't set out in your statements that you feel that the process had allowed a generous amount of time to ensure that the outcomes and conclusions were fair, do you?‑‑‑No.

PN3369

At paragraph 60 of your second statement, at Commission book 763 - well, actually, I'll take you to paragraph 59 first to put it in context. Paragraph 59, so it's Commission book 763, Professor, you say: "On 8 June 2007, Ms P failed to attend the scheduled meeting to discuss her employment. I understand the university has now taken steps to progress the termination of Ms P's employment for unsatisfactory performance"?‑‑‑Yes.

PN3370

I just wanted to ask you a few questions about that. Are you able to provide the Commission with an update as to what has happened in relation to Ms P's employment?‑‑‑I understand that it's been terminated.

PN3371

Rather than take you to paragraph 60, I might just take you to paragraph 64, so I'm Commission book 764, you say:

PN3372

The unsatisfactory performance provisions of the agreement were commenced in August 2015. They are still under way almost two years later. I believe the agreement has made it very difficult to discipline Ms P. Without the agreement, the school would have moved a lot faster on this process.

PN3373

?‑‑‑Yes.

PN3374

Is it your evidence that prior to the recent steps that have been taken against Ms P to terminate her employment at the university did not have the grounds to terminate her employment earlier?‑‑‑What I believe to be the case is the university, including the school, felt constrained by the agreement to demonstrate that it was meeting the obligations set out in that agreement.

PN3375

Just see if I have got this correct. Do you say that the university felt constrained by the agreement that it could not terminate the employment of Ms P prior to it taking these recent steps against Ms P?‑‑‑Yes.

PN3376

Are you aware whether the university believed in November 2016 that there were sufficient evidence for the termination of Ms P's employment but decided not to take such action given her longstanding tenure. Are you aware of that?‑‑‑Could you identify why you've chosen that date in November 2016? Where is that coming from?

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3377

I'm asking you the question and I'll take you to something in a moment. I'm asking whether you're aware of whether the university believed in November 2016 that there was sufficient evidence for the termination of Ms P's employment but decided not to take such action given her longstanding tenure? Were you aware of that?‑‑‑No.

PN3378

And you agree with me that that's certainly not set out in your statement, is it?‑‑‑It's not.

PN3379

No. Could you please go to Commission book 847. Now this document is dated 2 February 2017 and it's blanked out but it appears that it's addressed to Ms P. My learned friend will correct me if he has got information to the contrary, but this is what is attached to your statement. You say:

PN3380

This letter is to confirm progression of the formal unsatisfactory process in line with clause 63.4 of the Murdoch University Enterprise Agreement. The attached report is being issued to yourself and Rikki Kersten, Dean School of Arts. The report details the facts related to the unsatisfactory performance process undertaken and strategies to address unsatisfactory performance.

PN3381

You see that?‑‑‑Yes.

PN3382

And that's a letter from Ms S to Ms P, correct?‑‑‑It appears to be, yes.

PN3383

And that attaches, as it says, a document being the attached report and you see that you've attached that and that's at Commission book 848?‑‑‑Yes.

PN3384

And that report appears to go to page 853?‑‑‑Yes.

PN3385

And you see what it does is at Commission book 849 gives a background and ongoing performance concerns. You see that?‑‑‑Yes.

PN3386

And in the first paragraph I'm assuming the words are something to the effect of:

PN3387

Ms P has been subject to a formal unsatisfactory performance process including the implementation of a performance improvement plan (PIP) from 23 May 2016. The formal process commenced after initial informal counselling did not see an improvement in performance.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3388

?‑‑‑Yes.

PN3389

That's your understanding and that's correct?‑‑‑Yes. Yes.

PN3390

Yes, and then it says:

PN3391

On 18 November 2016 Ms P was issued with a formal censure due to remaining unsatisfactory performance over a six month period evidenced in PIPs during this time.

PN3392

That's your understanding, that's correct?‑‑‑Yes.

PN3393

And then:

PN3394

The formal censure outlined a number of performance areas that still required improvement including -

PN3395

And there are three matters listed there, and then you see what it says in the next paragraph:

PN3396

Although the university believed that there was sufficient evidence for termination at this time, due to P's length of service it was agreed to continue a further PIP for a period of up to six weeks. The further PIP aimed to address remaining performance concerns and to ensure Ms P clearly understood what the consequences would be if satisfactory performance was not achieved.

PN3397

Do you see that there?‑‑‑Yes I do.

PN3398

Do you now recall at the time that you believed at the time of this report that there was sufficient evidence for the termination of Ms P's employment?‑‑‑No I don't.

PN3399

Right, okay, but you do agree with me that this is - going back to Commission book 847 - that this is a document that was attached - this attached report was both issued to Ms P and to yourself wasn't it?‑‑‑Yes it says so.

PN3400

And this is a final report dated 30 January 2017 and it's a report that you received, wasn't it?‑‑‑Yes it is.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3401

Yes and going back to some earlier answers or earlier questions to - sorry, earlier answers that you gave in relation to some questions about how you came to prepare this statement; when you came to prepare this statement and signed it in June of this year, is it correct to say that you didn't read these documents - - -?‑‑‑That's incorrect.

PN3402

- - - in the preparation of it. Pardon?‑‑‑That's incorrect.

PN3403

So did you read this final report shortly before you signed the statement?‑‑‑I would have read this report before I wrote my own statement because I have been part of this process. But yes, I would have read it.

PN3404

And why did you not include that fact, the fact that the university had sufficient evidence to terminate her employment but agreed to continue the PIP for a period of six weeks given her length of service? Why didn't you include that fact in your statement?

PN3405

MR WOOD: To be fair to the witness it's in her statement.

PN3406

MR ATTIWILL: Yes, I know.

PN3407

MR WOOD: This document is an attachment to her statement.

PN3408

MR ATTIWILL: I know.

PN3409

MR WOOD: The question rather commences from a fairly unfair premise that it's not included in her statement when it is.

PN3410

MR ATTIWILL: It's not included in the chronology.

PN3411

Why didn't you include that in the body of your statement, being in the 11 pages where you deal with Ms P?‑‑‑In retrospect I can't say.

PN3412

Just excuse me for a moment. Now I want to ask you about two other cases, being the case of the two professors.

PN3413

THE COMMISSIONER: Before we get to the two professors.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3414

MR ATTIWILL: Yes.

PN3415

THE COMMISSIONER: Nobody seems concerned so perhaps I need not be, but Mr Attiwill and Mr Wood, I gather from some of the recent evidence that Ms P has been dismissed from her employment with Murdoch?

PN3416

MR ATTIWILL: Yes.

PN3417

THE COMMISSIONER: Do either yourself or Mr Wood have any knowledge as to whether there are any proceedings that have been initiated as a consequence of that?

PN3418

MR ATTIWILL: I don't, but I could get instructions. As you can tell by my line of questioning, I wasn't putting affirmative matters to Ms Kersten about that but I could certainly find out.

PN3419

MR WOOD: None to our knowledge, Commissioner, and I think we'd know if we were served with anything.

PN3420

MR ATTIWILL: None to our knowledge I can say too, Commissioner.

PN3421

THE COMMISSIONER: All right, that's fine. Let's just proceed on the basis that I haven't raised it. But it strikes me that this perhaps is an unusual instance, given what I'm aware of, of the evidence generally before me so far, in that the dismissal that occurred is relatively recent. But obviously I think we need to be a little cautious if there are any similar circumstances that arise in terms of what is said in here if there are going to be potentially future proceedings.

PN3422

MR ATTIWILL: Yes, I understand.

PN3423

THE COMMISSIONER: So if either of you become aware of that as an issue, perhaps just alert me to it and we'll see what we do.

PN3424

MR ATTIWILL: Yes, I certainly understand the context in which you raise that with us, Commissioner, and we'll let you know straight away. It might be that we can advance some enquiries in that regard anyway.

PN3425

THE COMMISSIONER: Thank you.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3426

MR ATTIWILL: Now could I just ask you to go to your second statement please at paragraph 110 - or maybe paragraph 107 at Commission book 771?‑‑‑Yes.

PN3427

And you'll see here that you deal with the two professors?‑‑‑Yes.

PN3428

And is it right that - is this an accurate summary, and tell me if it's not. But when you deal with the two professors, you're dealing with them in circumstances or you're highlighting them as examples where the university didn't engage with the provisions of the agreement because it said it wasn't willing to get involved in that agreement in relation to these two matters. Is that basically how it's put?‑‑‑Yes.

PN3429

So it's different in that respect to obviously what I've just been asking about Ms P, where the university did engage the provisions?‑‑‑Correct.

PN3430

Yes, okay. Now at paragraph 110 you say:

PN3431

I can think of two examples where academics were underperforming and the school decided not to embark on a process under clause 20 of the agreement because it was just considered too hard.

PN3432

Where you refer to clause 20 do you mean clause 21? If I could just - clause 20 concerns misconduct and clause 21 concerns unsatisfactory performance, and if it assists you, at paragraph 108 you in fact refer to clause 21 of the agreement being onerous?‑‑‑It appears to be an error.

PN3433

Yes. If you can assume at the moment that clause 20 concerns misconduct, clause 21 concerns unsatisfactory performance, obviously the clause number in paragraph 110 is incorrect and it should be 21?‑‑‑I believe so.

PN3434

Now, you didn't refer to these two examples in your first statement?‑‑‑No.

PN3435

In fact you gave no example in your first statement concerning, if I could put it this way, the unwillingness of the university to engage with the unsatisfactory performance provisions, did you?‑‑‑No.

PN3436

Why not?‑‑‑It didn't occur to me at the time I produced that first statement.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3437

Why did it occur to you at the time that you made the second statement?‑‑‑I can't reliably say.

PN3438

Did somebody bring it to your attention?‑‑‑No, certainly not.

PN3439

Now, at paragraph 111 of your statement to paragraph 118, you deal with the case of Professor W?‑‑‑Yes.

PN3440

You have read, as you have said in answers to your senior counsel, Professor W's statement?‑‑‑Yes.

PN3441

You would agree that you considered him to be a highly respected excellent researcher with a global reputation?‑‑‑Yes.

PN3442

You started in your role as the dean of the school of arts in 2014?‑‑‑That's right.

PN3443

Professor W commenced in his role some 38 years prior; in 1976?‑‑‑Correct.

PN3444

Do you have a copy of Professor W's statement?‑‑‑Yes, I do.

PN3445

Commissioner, do you have a copy of that, too?

PN3446

THE COMMISSIONER: Yes, I do.

PN3447

MR ATTIWILL: Thank you, Commissioner.

PN3448

At paragraph 8 in the fourth line, you will see that Professor W sets out an arrangement that he had with the then dean of the school?‑‑‑Yes.

PN3449

I'm not going to take you through all of that that he sets out in the remaining part of paragraph 8, but then you will see at paragraph 10 he says:

PN3450

The dean at that time happily accepted this arrangement. It was saving the school a lot of money.

PN3451

You see that?‑‑‑I see that.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3452

Nowhere in your statement concerning the events of Professor W do you record any arrangement of that nature that Professor W had with your predecessor, do you?‑‑‑No, I don't mention it.

PN3453

At the time you made your second statement, were you aware of that arrangement?‑‑‑I recall discussions with Professor W where he wanted to continue an arrangement of this kind.

PN3454

Yes. So in the discussions that you had with Professor W at the time, that are the subject of your statement and his statement in response – at the time of those discussions, Professor W told you what his arrangement was with the previous dean?‑‑‑Yes.

PN3455

You wanted to bring an end to that arrangement, didn't you?‑‑‑I did.

PN3456

Now, you don't in your statement concerning Professor W either refer to the existence of that prior arrangement or you wanting to bring it to an end, do you?‑‑‑No, I don't.

PN3457

Why not?‑‑‑It wasn't an arrangement I made. I had not seen documentation that referred to that arrangement or I don't recall seeing documentation. In any event, it was my judgment that the arrangement needed to be altered.

PN3458

What you set out in your statement about Professor W is that – and if I could take you to it. At paragraph 111, you say the first case involved Professor W and you say when he commenced employment, and that he is highly respected. Then at paragraph 113 you say:

PN3459

When I arrived I heard from the professor of Japanese, who is also a productive researcher with a global reputation, that he been asked by Professor W to deliver the first year Southeast Asia history unit. I did not think that was acceptable.

PN3460

?‑‑‑Yes, that's correct.

PN3461

You didn't think that it's a relevant fact for you to set out in your statement the fact that this arrangement was one that he had made with your predecessor?‑‑‑No, I didn't.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3462

And that you just wanted to bring that to an end?‑‑‑It was more a case of wanting to ensure that the unit would be taught by properly qualified members of staff.

PN3463

Yes. You wanted to do it a different way to your predecessor. You didn't want the arrangement in place. You wanted Professor W to basically, as you put it, enter back into the classroom.

PN3464

MR WOOD: There are three questions there. Perhaps my learned friend could just one question at a time.

PN3465

MR ATTIWILL: Yes, okay. Sure.

PN3466

You didn't want that arrangement to continue any more?‑‑‑It was not for me about the arrangement. It was about the needs of the school.

PN3467

Yes. You wanted to Professor W to enter the classroom and do his share of teaching?‑‑‑Yes, I did.

PN3468

And that when he refused, you started to conduct performance reviews, you say?‑‑‑I started discussing his teaching load with him, yes.

PN3469

Did you start conducting performance reviews with him?‑‑‑Not formal performance management, no.

PN3470

Well, if you go to your statement at paragraph 115 on Commission book 772, you say:

PN3471

I, therefore, instructed Professor W to enter the classroom and do his share of the teaching. When he refused, I started conducting performance reviews.

PN3472

?‑‑‑Yes, that refers to the performance development review process or the PDR.

PN3473

What is that?‑‑‑That is an annual discussion held between me and continuing members of staff that reviews the previous year's performance and discusses agreed objectives for the coming year's performance. That is a performance review.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3474

All right. When did Professor W leave employment at Murdoch University?‑‑‑I can't remember. I think it was 2024 or '15.

PN3475

You raise this with him when you arrive in April 2014 or thereabouts?‑‑‑I arrived in February.

PN3476

Sorry, February 2014. You raise it with him soon after that?‑‑‑Yes, I did.

PN3477

Is he there in 2016?‑‑‑No, not as a salaried member of staff.

PN3478

No. In 2015, was he a salaried member of staff?‑‑‑I don't think he was for the entire year, but I don't have the dates before me.

PN3479

But you wouldn't disagree with his evidence that he was not subject to any performance management review?‑‑‑In the terminology you use.

PN3480

Yes?‑‑‑I would prefer to use the terminology "performance review" and we did have a discussion on more than one occasion about how he would fulfil his teaching obligations in the school.

PN3481

Are they just annual reviews though, just to be clear?‑‑‑They are annual.

PN3482

So you say that you might have had more than one annual review with Professor W?‑‑‑I had one annual review with him.

PN3483

Yes. When we look at paragraph 115, just so that we can be clear, "I started conducting performance reviews", you only conducted one review?‑‑‑I conducted one performance development review; one PDR.

PN3484

Yes. So there is no other performance review apart from that?‑‑‑Not PDRs, no.

PN3485

Well, what other ones are you saying that you might have done?‑‑‑What I'm referring to is discussions about his performance as a teacher and his contributions to the school.

PN3486

So more of an informal discussion then?‑‑‑It was – it was a series of discussions between the dean of the school and an academic member of staff.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3487

At paragraph 113 just on Commission book 771 you say:

PN3488

When I arrived in 2014 I heard from a professor of Japanese who was also a productive researcher with a global reputation that had been asked by Professor W to deliver the first year South East Asian history unit.

PN3489

You record that. Then you in 114, if I can just summarise that, venture some opinions about that?‑‑‑Yes.

PN3490

Then at paragraph 115 you just say:

PN3491

I therefore instructed Professor W to enter the classroom.

PN3492

You see that?‑‑‑Yes.

PN3493

So you don't set out anywhere in this statement that you actually spoke to Professor W before you gave him an instruction to enter the classroom, is that correct?‑‑‑That's not correct.

PN3494

So you did have some discussions with him?‑‑‑Yes.

PN3495

You have read what he's had to say about why that person was taking that subject, haven't you, and if I could take you to it more directly. So if you go to his statement you will see that he sets out why this person was taking that subject?‑‑‑Which paragraph are you referring to?

PN3496

You have got it there, if you go to paragraph 15?‑‑‑Yes.

PN3497

You will see there he says:

PN3498

I did not ask the professor of Japanese, Dr Sandra Wilson, to take the first year Asian studies unit.

PN3499

You see that?‑‑‑Yes.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3500

And he never told you anything different, did he, Professor W never said he had done that?‑‑‑You're asking me to remember what he said to Professor Wilson when I wasn't present?

PN3501

Yes?‑‑‑I really can't comment on that.

PN3502

But did he tell you that – did Professor W tell you that he denied that he asked the professor of Japanese, Dr Sandra Wilson, to take the first year Asian studies unit?‑‑‑I don't recall him specifically saying that.

PN3503

At paragraph 117 you refer to him, you say:

PN3504

Professor W took exception to my involvement in attempts to performance manage him. In the end Professor W sought support from the NTEU. Rather than continuing with what looked like to be a long, difficult and extremely unpleasant process we negotiated for him to take an early retirement. This included Professor W receiving a generous payout.

PN3505

This payment that he received did that reflect almost 40 years of service to the university?‑‑‑I did not authorise that payment and I wasn't privy to the discussions about the payment.

PN3506

Then how are you able in your statement to say that it was generous?‑‑‑I was assured of this by the provost at the time who was leading those discussions.

PN3507

Assured of what?‑‑‑That it was a generous settlement.

PN3508

Do you have any dealings with the professor in his capacity as an emeritus professor?‑‑‑Yes, I do.

PN3509

How many emeritus professors are there within the School of Arts?‑‑‑I can't give you a reliable figure because these arrangements were often made before my arrival. I approved Professor W's application to be an emeritus professor in the School of Arts.

PN3510

And upon what basis did you do that, why did you approve that?‑‑‑Professor W is an outstanding researcher as I say and he's someone who brings excellent reputation to the School of Arts and to Murdoch as a researcher.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3511

I just wanted to ask you some questions about Professor H?‑‑‑Yes.

PN3512

You will see that you deal with Professor H at paragraph 119, Commission book 772 to paragraph 122?‑‑‑Yes.

PN3513

Professor H started at the university in 1990?‑‑‑Yes.

PN3514

At paragraph 120 you say:

PN3515

Professor H is an expert in South East Asian studies. His main area of interest is in the - - -

PN3516

I am just going to call it ACISIS, but I know that's not going to be correct - - -?‑‑‑ACICIS.

PN3517

- - - Consortium. I had the impression he did not want to be in the classroom teaching.

PN3518

?‑‑‑That's correct.

PN3519

He never said that?‑‑‑His behaviour demonstrated that.

PN3520

I have asked you a question, he never said that he didn't want to be in the classroom teaching, did he?‑‑‑In those words as far as I recall, no.

PN3521

Or any of the words to that effect, he never said any words to the effect that he did not want to be in the classroom teaching?‑‑‑He did not offer to teach introduction to Asian cultures for example, which implies he did not want to be in the classroom.

PN3522

You have read Professor H's statement?‑‑‑Yes.

PN3523

And your senior counsel has asked you certain questions and you have given your evidence about those things including some things that you disagree with. Are there any matters that your senior counsel didn't ask you that you disagree with in Professor H's statement?‑‑‑Not that I can recall.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3524

At paragraph 120 you refer to the casual academic, and that's in the penultimate sentence in 120, the one that commences just over halfway down 120:

PN3525

A casual academic was teaching the course which he should have been teaching.

PN3526

When you say should have been you mean Professor H there?‑‑‑Yes.

PN3527

He was also sending students on trips to Indonesia.

PN3528

Which your senior counsel asked you some questions about?‑‑‑Yes.

PN3529

Now, similarly if I could take you to Professor Hill's statement briefly. He too at paragraph 10 on page 3 refers to an arrangement that he had. You see that?‑‑‑Yes.

PN3530

This was an arrangement that he says came about because he was actually offered the chair of Indonesian studies at the Australian National University?‑‑‑That's what he says.

PN3531

And that Murdoch University offered him a certain arrangement. He sets it all out there. I am not going to take you through it, but he concludes in that paragraph 10:

PN3532

This offer to me dated 19 September 2008 described me as a productive professor who is highly valued within the school and the faculty.

PN3533

Were you aware when you commenced as dean that Professor H had that arrangement?‑‑‑I was made aware of it.

PN3534

Again you don't set that arrangement out in your second statement concerning Professor H, do you?‑‑‑No.

PN3535

When you say you were made aware of that arrangement were you made aware of that arrangement before you start to discuss with Professor H about what you want him to do in this context?‑‑‑I can't recall the order in which these things happened.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3536

But would it be right to say that in paragraphs 120 to 122 you are setting out your discussions with Professor H about these matters?‑‑‑Yes.

PN3537

Is it right to say that as part of those discussions you at least became aware of this arrangement that Professor H said that he had?‑‑‑Yes.

PN3538

At paragraph 28 Professor H describes the person that you describe as the casual academic, and you see that he sets out who this person was, paragraph 29 – sorry, paragraph 28?‑‑‑Yes, 28.

PN3539

He says:

PN3540

I believe the casual academic that Professor Kersten refers to in her statement is an academic that has been employed by the university as an Indonesian teacher on a fractional basis since 2002.

PN3541

?‑‑‑Yes.

PN3542

Is his assumption correct?‑‑‑I can't recall when this academic started his employment, but it sounds roughly correct.

PN3543

Then he goes on:

PN3544

This individual is a fully qualified Indonesian teacher.

PN3545

?‑‑‑Yes.

PN3546

And has a masters in education with a specialisation in the use of technologies and language teaching.

PN3547

?‑‑‑Yes.

PN3548

At paragraph 121, you set out that you took some action about the students who were travelling to Indonesia and at the top of Commission book 773, you say:

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3549

I wanted him to take back teaching work which he had been neglecting. My professional relationship with Professor H became poor and hostile. I fought with Professor H for some time to increase his teaching load.

PN3550

?‑‑‑Yes.

PN3551

Do you consider that to be an accurate description of your relationship, that you fought with him?‑‑‑Obviously, I don't literally mean fighting.

PN3552

I am not suggesting that, but it's quite - - -

PN3553

MR WOOD: (Indistinct) that she'd stopped.

PN3554

MR ATTIWILL: If she wishes to keep going - - -

PN3555

MR WOOD: No, she speaks slowly so you've just got to bide your time.

PN3556

MR ATTIWILL: She is speaking slowly, but if you watch her, she stops and I'm not interrupting her at all.

PN3557

Please proceed if you had something else to add, Professor?‑‑‑I'd like you to repeat the question, please.

PN3558

Yes, sure. The word "fought" is a pretty strong word, isn't it, to describe a relationship?‑‑‑Yes, yes.

PN3559

And I'm putting to you that where you say, "I fought with Professor H", it's not really an accurate description of your relationship with him at all, is it?‑‑‑When taken literally, no.

PN3560

Even taken figuratively, it's not an accurate way to describe your relationship in which you're just discussing with him about you wanting him to take on additional teaching load and him not wanting to and trying to explain his position. You weren't fighting with him figuratively about those matters.

PN3561

MR WOOD: There's two questions again. Just ask one.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3562

MR ATTIWILL: You weren't fighting with him.

PN3563

MR WOOD: Just ask one question, pause - - -

PN3564

THE COMMISSIONER: Yes, gentlemen. Gentlemen. Gentlemen. I think the witness can understand the question, so let's just allow an answer.

PN3565

MR ATTIWILL: Yes, she is quite able.

PN3566

Do you want me to reput the question?

PN3567

THE COMMISSIONER: No.

PN3568

THE WITNESS: No, I understand the question. Obviously, when taken literally, it's not an accurate depiction, but I believe it is accurate in that it represents ongoing disagreement.

PN3569

MR ATTIWILL: Your senior counsel took you to a number of matters involving Professor H's statement and you disagreed with parts of the matters that he put to you. You recall that?‑‑‑That's right.

PN3570

Is there any other matters that are in Professor H's statement that you disagree with?‑‑‑Nothing substantive.

PN3571

I want to go to a different topic now. If you could go to Commission book 746, please, and you will see there that - and I don't know if it's on your copy, but you deal with fixed term agreements or engagements and the paragraphs - and let me know when you - have you got that, Professor?‑‑‑Yes, yes.

PN3572

The paragraphs that are paragraph 65 to 73 are not relied on or not put?‑‑‑Yes, yes.

PN3573

You recall the senior counsel raising that?‑‑‑Yes, I do.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3574

Is it correct to say, and I am not going to ask you questions about what you raise in these paragraphs, but what you were doing in this section were - at paragraph 67, you said: "I'm also aware that under the agreement, if someone is employed on a fixed term contract for three years, if they are to be offered ongoing employment, it must be in the form of a continuing contract, not another fixed term contract." See that?‑‑‑Yes.

PN3575

Then at paragraph 68, you were saying that it makes it difficult to make the School of Arts responsive and then you give an example at paragraph 70. See that?‑‑‑Yes.

PN3576

You still deal with this issue of fixed term engagements in your second statement at paragraph 139 and if I could just take you to that for a moment, at Commission book 776, and, Commissioner, I understand that paragraph 139 is still put.

PN3577

THE COMMISSIONER: Sorry, you understand it's still - - -

PN3578

MR ATTIWILL: It's still - that was not deleted.

PN3579

MR WOOD: Yes, it's a different topic.

PN3580

THE COMMISSIONER: Correct.

PN3581

MR ATTIWILL: And you will see there that at paragraph 139, you say: "Ideally, academics engaged to teach a new course would be engaged on a fixed term basis and often are. However, the agreement provides for automatic conversion of fixed term employees after three years." See that?‑‑‑Yes.

PN3582

Could you please go to the agreement which is at Commission book volume 1, page 1. Tell me if any of this is incorrect. What you are dealing here, in paragraph 39, you're dealing with fixed term - people engaged on a fixed term contract and then the second sentence of 139, you say: "However, the agreement provides for automatic conversion of fixed term employees after three years." Do you know whether you're referring in paragraph 139 when you say that and make reference to the agreement whether you're referring to academic or professional staff or both?‑‑‑I would have been referred to academic.

PN3583

Yes, and to be fair, and I was about to draw it to your attention, in the first sentence of paragraph 139, you say: "Ideally academics engaged"?‑‑‑Yes.

PN3584

If we go to the provision in relation to fixed term contracts for academic staff, if you could just turn the page to clause 16.5 and on page Commission book 21 and you see - do you have that, Professor?‑‑‑Yes, I do.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3585

Do you see that at 16.5, limitation on use of fixed term employment"?‑‑‑Yes.

PN3586

What is set out there is a number of what we are calling categories from category A and following and then you'll see that appears to go from A to K on Commission book 23 and then there is some conversion criteria?‑‑‑Yes.

PN3587

Then there is other matters concerning fixed term contracts until we get Commission book 25, 16.6, scholarly teaching fellows. But are you able to point the Commissioner, just so that we have got this right, where does the agreement provide for automatic conversion of fixed term employees after three years?

PN3588

THE COMMISSIONER: Mr Attiwill, I think you can move this along.

PN3589

MR ATTIWILL: Yes, I am, thank you.

PN3590

I want to put to you that there's no such clause?‑‑‑I can see in - I'm looking for the number, I can't find it, (s) on page 25. It's three consecutive fixed term contracts or fixed term employment amounting to five or more years, so my statement is not correct there.

PN3591

Well, you see, in your statement at paragraph 139 you refer to automatic conversion after three years. I'm not going to take you back to all of the paragraphs, but the paragraphs in your first statement, from paragraph 67, concern the same issue. That is automatic conversion after three years and you give even an example in paragraph 70 about it?‑‑‑Yes.

PN3592

But you would agree with me that there is no provision in the agreement that provides for automatic conversion of fixed term employees after three years. Is that correct?‑‑‑My statement should have said after three consecutive contracts, I think, as – - -

PN3593

Yes, but so that you are - - -?‑‑‑Consecutive fixed term contracts, so you're correct.

PN3594

Yes. So what you have said in your statement is incorrect?‑‑‑Right.

PN3595

You agree with that?‑‑‑Yes.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3596

Now, I just want to ask you some questions about annual leave. At paragraph 74 in your first statement, Commission book 748, you deal with this issue and you have described it as "excessive annual leave accrual"?‑‑‑Yes.

PN3597

At paragraph 77 you say:

PN3598

Currently under clauses 31.2(e) and 89.1(b) of the agreement, I can only direct an employee to take annual leave if they have more than 300 hours accrued.

PN3599

You see that?‑‑‑Yes.

PN3600

If you could just go to Commission volume 1 and I wanted to ask you some quick questions just about the provisions of the agreement concerning annual leave. You have mentioned in your statement the two provisions of the agreement about directing employees to take annual leave. You agree with that?‑‑‑Are you referring me to the EA now?

PN3601

Yes, I am. If you go to page 50 of the Commission book in volume 1, which is the enterprise agreement?‑‑‑Right.

PN3602

Have you got that?‑‑‑Yes.

PN3603

You will see that on page 50 there is a heading at clause 31.2 "Taking annual leave"?‑‑‑Right.

PN3604

What you have referred to in the statement is you have referred to clause 31.2(e)?‑‑‑Yes.

PN3605

That concerns an employee accumulating more than 300 hours. Yes?‑‑‑Yes.

PN3606

Could I just ask you some quick questions about annual leave. In 31.2(a) it says:

PN3607

Annual leave is to be taken prior to commencement of first semester and the year after it falls due, subject to subclause (d) below.

PN3608

Then in (d) it says:

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3609

Where an employee is unable to take leave due to the operational requirements of an academic unit or other good cause, the employee will have the right to carry forward such leave subject to the following conditions.

PN3610

?‑‑‑Yes.

PN3611

Then (i) is:

PN3612

The head of the academic unit must approve the carry forward of the leave in advance of it being carried forward.

PN3613

You see that?‑‑‑Right.

PN3614

Now, in your school under your leadership, do you ensure that the head of the academic unit approves all leave where it's sought to be carried forward?‑‑‑Yes.

PN3615

You raised a matter before lunch about cashing out. You know, having the ability to cash out annual leave?‑‑‑Yes.

PN3616

Are you aware of whether or not the award that would apply to, say, professional staff – what that provides in relation to the cashing out of annual leave?‑‑‑Not offhand, no.

PN3617

If I told you that the award did not permit cashing out of annual leave, would it concern you if this agreement was terminated and employees were on the award? Would it still concern you if they were on the award that you still couldn't cash out the annual leave? Would that still be something that you would still want to achieve?‑‑‑Yes, it would give more flexibility.

PN3618

I want to ask you some questions about academic workloads. Is it right that you deal with this in two ways; one, in your first statement you deal with academic workloads at paragraph – well, actually I'll just take you to a matter before I take you to where you directly deal with it. If you could just go to Commission book 739 for a moment and to paragraph 23?‑‑‑Yes.

PN3619

What you say at paragraph 23 is:

PN3620

To ensure the health and welfare of my academics, I have implemented a policy that no academic can teach across all four teaching periods in OUA.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3621

?‑‑‑Yes.

PN3622

That is "Open Universities Australia"?‑‑‑Correct.

PN3623

Had you identified a risk to health and welfare of your academics?‑‑‑In my conversations with academics, usually informal, but also during a performance development review conversations, they have expressed concern at the possibility of being always on.

PN3624

And that affecting their health and welfare?‑‑‑Yes.

PN3625

Then you say still at paragraph 23, second sentence:

PN3626

Productive research is important to university rankings, so I need to allow my academics time to conduct that research.

PN3627

?‑‑‑Yes.

PN3628

And:

PN3629

If I am expecting my academics to produce research but I give them no time to do it, that is a nonsense.

PN3630

Why do you describe it as a nonsense?‑‑‑It feels to me absurd to demand something of an academic and then make it impossible for them to actually achieve what I'm asking.

PN3631

Yes. Research is important to both rankings for Murdoch University, particularly in your school?‑‑‑In every school.

PN3632

Is it important in other ways in the life of university research?‑‑‑Yes, it is.

PN3633

How?‑‑‑It can influence the quality of teaching in the classroom. An academic needs to show that their research is up to date, is conversant with current thinking in their field. It's also quite important to attract PhD students who might be attracted by the reputation of an academic's research.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3634

Are you aware of the term within Murdoch University being "research inactive"?‑‑‑I'm aware of the term.

PN3635

Are you able to tell the Commissioner what that means?‑‑‑Not exactly, because it's a moving definition and it isn't one made by me.

PN3636

No, well, are you able to tell the Commissioner in general terms what your understanding of "research inactive" is within Murdoch University?‑‑‑"Research inactive" in general terms – and we have to be specific about when we're having the conversation because of the changing definition.

PN3637

I can well understand?‑‑‑Generally it refers to the lack of publications in highly ranked peer reviewed academic journals; a lack of publication in the form of monographs; or a lack of productivity in terms of non‑traditional research outputs. It also refers to an inability or a failure to apply for grants or to win grants.

PN3638

As the dean of the School of Arts, do you have persons – and I know the definition to be quite important, so in this respect when I'm asking the questions about research inactive, I'm just going for that general way that you have just described it?‑‑‑Yes.

PN3639

Let me put it this way: is the issue of academics being research inactive an issue for the School of Arts or not?‑‑‑It's an issue for individual academics who have a research allocation in their workload.

PN3640

Is that something that you as the dean of the School of Arts try to identify and remedy, so that if there is an academic who is research inactive, that as the dean you try to take steps to bring them back to being research active?‑‑‑Yes.

PN3641

And is one of the reasons why you'd seek to do that the importance of research in the university and to the School of Arts?‑‑‑That's one reason.

PN3642

Now I want to ask you about the case of Ms C and this is at - you address the case of Ms C - - -

PN3643

THE COMMISSIONER: Mr Kirkwood have you got much more for this witness?

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3644

MR ATTIWILL: No.

PN3645

THE COMMISSIONER: Good.

PN3646

MR ATTIWILL: No.

PN3647

In relation to Ms C, if you could just go to your second statement at paragraph 72?‑‑‑Yes.

PN3648

And I just want to see do you agree with this summary?‑‑‑Yes I do.

PN3649

No, sorry, I was about to - - -?‑‑‑In 72?

PN3650

That serves me right?‑‑‑In 72?

PN3651

And Mr Wood missed that. He would have loved that?‑‑‑I thought you'd asked me if I agreed with paragraph 72. I misunderstood.

PN3652

That's okay?‑‑‑Sorry.

PN3653

That's fair enough too. Touché. I just wanted to see if you agree with my summary?‑‑‑I'll listen to it first then.

PN3654

She was on probation?‑‑‑Yes.

PN3655

You didn't support her for - and let me take it back a step. There was some complexity because she was on probation. She made an application to be ongoing, then the university said "Look, we want you to work on that application a bit more" and so she made another application?‑‑‑Correct.

PN3656

Yes, and so what I'd like to do is just really ask you some questions directed to the second application so that we don't get too messy at the moment on the facts. But she was on probation?‑‑‑Yes.

PN3657

And you in relation to her second application to be ongoing, you didn't support that, did you?‑‑‑I didn't. I didn't support her desire to be made continuing as a researcher teacher.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3658

Yes, and that's because her research was poor?‑‑‑Yes.

PN3659

And it's right to say that you did a report to that effect?‑‑‑Yes.

PN3660

And you'd agree with me that it was late; you put the report in a bit too late?‑‑‑Correct.

PN3661

And as a result of you putting the report in a bit too late she in fact was made ongoing?‑‑‑That's right.

PN3662

And then as a result of all of that you have now had to deal with her as an employee, an ongoing employee?‑‑‑Yes.

PN3663

And you'd agree with me - and I'm not making a criticism of you at the moment because I know why you say you put it in late. So let me make that plain. But as a result of you putting it in late she was made ongoing. If that was done earlier then she wouldn't have been made ongoing and she wouldn't have - - -?‑‑‑We can't - - -

PN3664

- - - obtained the employment?‑‑‑We can't know that because it's a decision made by a particular committee. We can't know what they would have said.

PN3665

But they would have had your report and your report didn't support it, did it?‑‑‑Correct.

PN3666

She made her application - I think you say this at paragraph 86 - she made this application on 6 August 2015, correct?‑‑‑That's right.

PN3667

And you found out about it on that day, correct?‑‑‑I don't know when I found out about it.

PN3668

Could I just provide you with some documents. While that's being - so if you could just look at these documents. There's three documents there. They're redacted. One document which is the thicker document, you see that's dated 6 August 2015?‑‑‑Yes.

PN3669

"Dear Teagan, Please find attached my application for probationary review"?‑‑‑Yes.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3670

And that's from Ms C?‑‑‑Yes.

PN3671

And then you see there's another email and do you see there it's 6 August 2015, that's from Ms C to you, Rikki Kersten?‑‑‑Right.

PN3672

And you can see that says:

PN3673

Dear Rikki, As you would be aware my application for probationary review is due on 27 August 2015. I've attached my argued case and supporting documentation to assist you in the preparation of your dean's report.

PN3674

Do you see that?‑‑‑Yes.

PN3675

And that's dated 6 August 2016, the same day that she made the application?‑‑‑Right.

PN3676

Well, you can see that, yes?‑‑‑Yes.

PN3677

Yes, and then your report in relation to her matter, you don't provide your report until 14 September 2016. That's at paragraph 88 of your second statement at Commission book 768. Do you see that?‑‑‑Yes I do.

PN3678

And you can see that in the second or the third document that I've provided to you it's a letter from Mr Farrelly to Ms C which says:

PN3679

For reasons outside of their control, the lecture promotions and probationary review committee were unable to finalise a recommendation on your application for probationary review before your probation period ended on 16 September 2015. On this basis I am pleased to inform you that your continuing position is now considered confirmed.

PN3680

?‑‑‑Yes.

PN3681

So you can see that from their point of view what the committee did was not consider its merits, but because there were reasons outside of their control and that they were unable to finalise a recommendation, they just granted it?‑‑‑That's what the letter says.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3682

Yes, I tender that series of documents, Commissioner. If they could be probably tendered one by one?

PN3683

THE COMMISSIONER: Yes. Yes, all right.

PN3684

MR ATTIWILL: I've only got, Commissioner, I should just say less than 10 minutes now, or five minutes. But there is one other topic.

PN3685

THE COMMISSIONER: One thing at a time please.

PN3686

MR ATTIWILL: Yes.

PN3687

THE COMMISSIONER: Dealing with these documents we've just had the witness look at.

PN3688

MR ATTIWILL: Yes.

PN3689

THE COMMISSIONER: We have one which is dated Thursday 6 August 2015 to probation.promotion which starts "Dear Teagan" we'll mark as exhibit R21.

EXHIBIT #R21 DOCUMENT DATED 06/08/2015 TO PROBATION.PROMOTION

PN3690

THE COMMISSIONER: Then we have another document which is an email sent Tuesday 15 September 2015 to Teagan Kirk we'll mark as exhibit R22.

EXHIBIT #R22 EMAIL DATED 15/09/2015 TO TEAGAN KIRK

PN3691

THE COMMISSIONER: And finally a letter on Murdoch letterhead dated 1 October that's scratched out. It's supposed to have been probably sent on 5 October, "Dear" blank and signed Bob Farrelly, we'll mark as exhibit R23.

EXHIBIT #R23 LETTER FROM BOB FARRELLY ON MURDOCH LETTERHEAD DATED 1 OCTOBER (WITH DAY OF MONTH SCRATCHED OUT)

PN3692

MR ATTIWILL: Thank you, Commissioner.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3693

Now I've just got two other matters that I wish to ask you some questions about. One is - if you could go to Commission book 751 and it's in your first statement under the heading "Dispute Resolution"?‑‑‑Yes.

PN3694

At paragraph 95 you say:

PN3695

I have had some experience with the dispute resolution process under the agreement.

PN3696

And then what you do at paragraphs 96 to 103 is just give one experience?‑‑‑Yes.

PN3697

And this experience concerns a person with the initial SL, is that correct?‑‑‑Yes.

PN3698

And so I'm going to refer to them as Ms L. Now I'd just like to hand you four documents and ask you some questions about it. But while those documents are being obtained, it's correct isn't it that there was a disagreement or a dispute, if you like, between you and Ms S about her going on leave to attend a conference in Spain, just in general terms?‑‑‑In general terms, yes.

PN3699

THE COMMISSIONER: Sorry, Mr Attiwill, perhaps it was my hearing originally, but were you referring to this person as Ms S or Ms L?

PN3700

MR ATTIWILL: Sorry, Ms L. To the extent I said Ms S I was mistaken. So Ms L. Just in general terms there was a dispute or a disagreement in relation to the subject matter that I have just put?‑‑‑Yes.

PN3701

The union became involved?‑‑‑Yes.

PN3702

And the dispute in relation to that matter was resolved soon after?‑‑‑From memory, yes.

PN3703

Could I just show you these documents. There's four documents there. The first document that I just want to ask you some quick questions about it is the Murdoch document which is an extract from its system in relation to leave?‑‑‑Yes, I see that.

PN3704

You will see there that that's a document that records leave request, leave balances and future leave bookings?‑‑‑Yes.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3705

You will see that this concerns Ms L?‑‑‑Yes.

PN3706

Down the bottom in relation to future leave bookings you have got the last booking – I should say this is a document dated 7 March 2016, you see that, the top left corner?‑‑‑Yes. Yes, I do.

PN3707

You will see there that it's got a future leave booking as at 7 March 2016 for the period 1 March 2016 to 29 May 2016 described as LAFAL-LSL. That's long service leave?‑‑‑Yes.

PN3708

I will tender these at the end, Commissioner. Is that a convenient course?

PN3709

THE COMMISSIONER: Yes.

PN3710

MR ATTIWILL: Then I would like to take you to another document which is the document that has got nothing at the top sort of one-third of it, and the author of the first email is you, 7 March 2016 to Ms L?‑‑‑I see that.

PN3711

What I would like you to do is to go to the back – you see that's an email chain?‑‑‑Yes.

PN3712

So go to the final email in that chain just to give it some very brief context. That's an email to Ms L from a conference organiser in Spain?‑‑‑Yes.

PN3713

It says in the last paragraph

PN3714

I'm afraid we need to bother you again with an admin issue. To be able to take the R&B funds allocated for your expenses we need written permission from your research dean head of department to take part in this.

PN3715

You see that?‑‑‑Yes, I do.

PN3716

If you just then go two pages forward, because like all email chains they sort of repeat themselves, so it's the second page in the bundle I have given you. You see that there is an email from you dated 4 March 2016?‑‑‑Yes.

PN3717

In which you say, and it's to Ms L:

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3718

As you will be on long service leave when you finish to attend this conference you do not require permission to attend. This is a personal matter and you should organise your own travel insurance to cover the journey.

PN3719

You see that?‑‑‑Yes, I do.

PN3720

So that's an accurate statement at the time, she's going to be going on long service leave and you have said, "Look, you don't require our permission, it's personal and just organise your own travel insurance"?‑‑‑That's right.

PN3721

If you go to the first page then of the email chain down the bottom at about point – or three-quarters of the way down the page it's an email from Ms L to you, and she says:

PN3722

Dear Rikki, I hope all is going well for you. Thanks very much for your email. I know you're very busy so my sincere apologies for persisting to clarify why I need a written email permission from Murdoch to attend the May 2016 conference in Alvio(?). Please do let me know if you need further information. If it's at all helpful I can Professor Carrera Swaris(?) to email you directly about this matter.

PN3723

Then it just says:

PN3724

Unfortunately Professor Carrera Swaris needs such a letter of permission for administrative purposes. Her email below indicates she needs such a letter from a relevant Murdoch authority.

PN3725

And it goes on?‑‑‑I see that.

PN3726

Then you respond on 7 March, and you say:

PN3727

I checked again with HR concerning your request. Because you are on personal leave until 30 May 2016 I am unable to write a letter saying the school approves your attendance at a conference. It implies that you no longer require personal leave which in turn would mean you could return to work. You are unable to be on personal leave and on official business simultaneously.

PN3728

You see that?‑‑‑Yes, I do.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3729

You agree with me that as at 7 March 2016, I am looking at the document that I first provided to you, that Ms L was in fact booked to go on long service leave, wasn't she?‑‑‑When was this extract - - -

PN3730

The email that I - - -?‑‑‑No, I'm sorry, when was the extract taken from the leave record?

PN3731

I took you to that earlier, it's on the top left corner, 7 March 2016. Do you see that?‑‑‑Yes, thank you.

PN3732

That has her booked for long service leave, correct?‑‑‑It appears to, yes.

PN3733

Your reference, your first reference in your email on the second page of the bundle I provided you referred to her going on long service leave?‑‑‑Yes, it does.

PN3734

Then this email that we have just been dealing with now says that she's going on personal leave. Do you see that?‑‑‑Yes, I do.

PN3735

That email that you sent that refers to her going on personal leave is dated 7 March 2016?‑‑‑Yes.

PN3736

You agreed with me anyway at the time that she was booked to go on long service leave. I just want to take you then to what happened next. So if you could just go to the – I have only got two more documents to go here, but to the document that has got half the email chain redacted, and then it says from Alex Cousner 21 March 2006 to Brendan Cusack?‑‑‑Yes.

PN3737

If you could just go to the last email in that chain you will see that that's from Mr Cousner to you dated 11 March 2016. I am not going to take you through the whole thing because it gets resolved, but I do want to just clarify some factual matters?‑‑‑Where is the email from Cousner?

PN3738

Right at the end, it's in the last part of the chain?‑‑‑The 21 March?

PN3739

No. Just so that we are clear, just so I can hold it up to you, Professor, the document that I am asking you about looks like this?‑‑‑So it's the one on top.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3740

It's half redacted and the first email in the email chain is from Mr Cousner to Mr Cusack 21 March 2016. So have you got that bundle?‑‑‑Well, the one you're pointing to says 29 March on my group if we're looking at the same thing.

PN3741

Yes, you probably have two documents that are half redacted. So I'm asking - - -?‑‑‑I appear to, yes, so I'm confused.

PN3742

Do you have one dated also 21 March or not?‑‑‑I do now.

PN3743

Yes, sorry. That's why I was trying to hold it up and give you the dates, but I can see – I mean they look the same?‑‑‑They look similar from here.

PN3744

Yes, of course.

PN3745

THE COMMISSIONER: Go to the second last page of that one.

PN3746

MR ATTIWILL: And it's the second last page of that one?‑‑‑Okay.

PN3747

THE COMMISSIONER: Where there's an email from Mr Cousner dated 11 March?‑‑‑Yes, thank you.

PN3748

MR ATTIWILL: To you. I am not going to take you through it all, but if you just went to the third paragraph it says:

PN3749

As you may recall from the latter part of last year our member did apply for and was ultimately granted long service leave from March to May this year. It was made abundantly clear at the time that this period of leave was always intended to be long service leave.

PN3750

Then it says:

PN3751

It's for this reason that your assertions about our member being on personal leave are of some concern to us.

PN3752

Then if you turn the page forward you will see an email from Alana Gruen(?) to Alex Cousner 14 March?‑‑‑Yes.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3753

It says:

PN3754

Simone is booked on long service leave on the HR system.

PN3755

Then they raise this:

PN3756

However this leave was approved by Professor Rikki Kersten on the basis that Simone was unfit for work. This is supported by the medical certificate stating requirement for personal leave from those periods.

PN3757

?‑‑‑Yes.

PN3758

Then to clarify:

PN3759

Simone is using - - -

PN3760

Sorry, I should say:

PN3761

Ms L is using SLS to cover her absence due to illness.

PN3762

Do you see that?‑‑‑Yes.

PN3763

Then go to the second page in the bundle and there's an email - sorry, a letter from the union to Brendan Cusack at Murdoch?‑‑‑Yes.

PN3764

And it's a dispute notification?‑‑‑That's right.

PN3765

And it seems that the dispute is in paragraph 2: "By way of background, a member is approved for long service leave for some time leading into approximately June 2006. It has been erroneously approved on the basis of our member being unfit for work." So there's the dispute. You on the one hand believe that the long service leave was being approved for being unfit for work, the member saying something different. If I could then just go quickly to the final document which is the one that you did have initially, 29 March 2016. Do you have that, Professor?‑‑‑Yes, I do.

*** RIKKI KERSTEN XXN MR ATTIWILL

PN3766

If I could just go to the second-last page of that and the second page of that, the one in the middle, you will see there is an email halfway down from Mr Cusack to Mr Cousner?‑‑‑Yes.

PN3767

It says:

PN3768

I refer to our meeting earlier this morning pursuant to clause 109 of the Murdoch agreement. I note you provided us with a letter from Dr L's treating medical practitioner that indicated that she was fit to undertake work. I informed Professor Kersten of this fact and it's my expectation she will now provide Dr L with a letter that she is seeking.

PN3769

Then you will see that, if you go to the first page in the bundle, there is an email from Mr Cousner to Mr Cusack dated 23 March. It says:

PN3770

Dear Brendan, thank you for the meeting this morning. Can I ask that you please confirm for me that Ms L is considered to be on long service leave and is free to attend professional events overseas?

PN3771

Then at the end: "I confirm that once this has occurred that we consider the dispute to be at an end"?‑‑‑Yes.

PN3772

Then Ms Begg from Murdoch writes to Mr Cousner and says: "Hi Alex, hope you had an enjoyable Easter break. I can confirm that Ms L has been provided with a letter requested by the school"?‑‑‑Yes.

PN3773

And the dispute is resolved. So a letter is provided by you that was being requested by Ms L?‑‑‑Yes.

PN3774

You were shown a medical certificate that satisfied you that when she was going to the conference that she was no longer sick and that the dispute came to an end?‑‑‑Yes.

PN3775

I tender those documents, Commissioner.

PN3776

THE COMMISSIONER: Yes, thanks. The first document which is an extract from the annual leave booking system which refers to - let us just refer to the first leave date mentioned in that for identification purposes which is annual leave academic 7 March 2016. And we'll mark that is exhibit R24.

*** RIKKI KERSTEN XXN MR ATTIWILL

EXHIBIT #R24 EXTRACT FROM ANNUAL LEAVE BOOKING SYSTEM

PN3777

THE COMMISSIONER: Then we have a document which attaches a number of emails, the top one being from Ms Kersten sent on Monday, 7 March 2016. The subject is "Clarification re invitation", marked as exhibit R25.

EXHIBIT #R25 DOCUMENT ATTACHING EMAILS, FIRST EMAIL FROM MS KERSTEN SENT ON 07/03/2016, SUBJECT: "CLARIFICATION RE INVITATION"

PN3778

THE COMMISSIONER: And the next bundle of emails, the top one is from Mr Cousner sent on Monday, 21 March 2016, to Brendan Cusack, subject "Dispute notification" is exhibit R26.

EXHIBIT #R26 BUNDLE OF EMAILS, FIRST EMAIL FROM MR COUSNER SENT ON 21/03/2016 TO BRENDAN CUSACK, SUBJECT "DISPUTE NOTIFICATION"

PN3779

THE COMMISSIONER: The final document again is a bundle of emails, the top one of which is from Hannah Begg, dated Tuesday, 29 March 2016, to Mr Cousner and again subject, "Re dispute notification", that's exhibit R27.

EXHIBIT #R27 BUNDLE OF EMAILS, FIRST EMAIL FROM HANNAH BEGG DATED 20/03/2015 TO MR COUSNER, SUBJECT "RE DISPUTE NOTIFICATION"

PN3780

MR ATTIWILL: No further questions, Commissioner.

PN3781

THE COMMISSIONER: Any re-examination, Mr Wood?

PN3782

MR WOOD: Thank you, Commissioner.

RE-EXAMINATION BY MR WOOD [3.32 PM]

PN3783

MR WOOD: You were asked some questions about Ms C?‑‑‑Yes.

PN3784

And you said you did not support her continuing as a research - and I just missed the last part of your - - -?‑‑‑Researcher teacher.

*** RIKKI KERSTEN RXN MR WOOD

PN3785

What do you mean by a researcher teacher, Professor Kersten?‑‑‑That's an academic who is employed on the understanding that they will have a work allocation both for research and for teaching in addition to service.

PN3786

Why did you not support her continuing as a researcher/teacher?‑‑‑Because her research productivity was extremely poor.

PN3787

You were asked some questions about research productivity under the guise of research inactivity and you said: "The definition is not made by me." Who makes the definition?‑‑‑The deputy vice-chancellor research does.

PN3788

You said it had changed recently. What was the change?‑‑‑There were changes. The main change that I recall is the requirement for an academic to either have a higher number of publications, whether that be reverie, journal articles or books or non-traditional outputs than before, or have the same number of publications but in addition to bring in $60,000 of competitive grant income per academic.

PN3789

You were asked some questions about research inactivity in your School of Arts, Professor Kersten, and you're talking about in answer to the question: "Individual academics that have research in their allocation." What do you mean by that?‑‑‑Academics can be employed on different profiles. They can be researcher teachers where they have a research allocation. They can be teacher scholars where they have a smaller research allocation, but that relates to research about teaching the discipline. It isn't original research about cognate subjects.

PN3790

A little bit like the issue with Ms C?‑‑‑Yes.

PN3791

You were asked questions about whether or not you took steps to make people who were research inactive - sorry, make academics who were research inactive, research active, and you were asked whether or not the reason for that was because research is important for the university and you said: "That is one reason, yes." What are the others?‑‑‑I think we - it's important that we develop the careers of our academics, that we give them an opportunity to be productive researchers. That's why research matters. It's a matter for the personal standing and career development of individual academics.

*** RIKKI KERSTEN RXN MR WOOD

PN3792

In terms of the steps that you try to take to make research inactive academics research active, what are they?‑‑‑They include, for example, giving provisions to early career researchers who are within five years of obtaining their PhD, we give them a workload allocation of 200 points straight off the bat in order to ensure they have time to develop their research careers post-PhD. We also offer school travel grants so that academics can attend conferences and present their work and engage with their peers. We provide funds to enable academics to apply for larger grants. We offer mentoring by senior academics so that their likelihood of being successful in their grant applications is enhanced. That's a number of examples of things we do.

PN3793

To what extent, if any, does the agreement prevent you or constrain you from taking these steps?‑‑‑The steps of?

PN3794

Dealing with someone who is research inactive?‑‑‑The agreement in the case of Ms C, I'm not entirely sure of the exact relationship, I'm afraid, but - - -

PN3795

I will just withdraw that. I don't want to put words in your mouth. Well, I do want to put words in your mouth, but I am not allowed to put words in your mouth, Professor Kersten.

PN3796

MR ATTIWILL: You're pretty close. You're getting pretty close.

PN3797

MR WOOD: Just dealing with Ms C before we finish with her, you said it wasn't your decision to make her continuing because you did not support her continuing and you said it was a particular committee. Who makes that decision? What is the precise name, if you can give it?‑‑‑Promotion and Probation Committee, levels A to C.

PN3798

It's not the Promotion and Probation Appeals Committee, is it? It's the Promotion and Probation Committee?‑‑‑I believe it's the committee.

PN3799

Is there a difference between the two committees I just referred to, that you know?‑‑‑I don't think so.

PN3800

You were asked some questions, when being cross‑examined, about Professor W?‑‑‑Yes.

PN3801

You said in relation to the agreement that had been entered into sometime before you became dean, it wasn't an agreement that you had made, you hadn't seen it documented and you felt that it needed to be altered. Why did you feel it needed to be altered?‑‑‑The circumstances the school was in, in terms of declining load across the board but especially in Asian studies and areas that relate to Professor W's area of expertise, but also the school needed to have its best researchers in the classroom. We needed to give the best possible experience to our students and that's what I thought Professor W could bring to the arrangement.

*** RIKKI KERSTEN RXN MR WOOD

PN3802

In answering my learned friend's questions about your dealings, to use a neutral word, with Professor W, you used four terms. The so‑called PDR, the annual performance development review?‑‑‑Yes.

PN3803

Secondly, a thing called a performance review. Thirdly, a thing called a formal review. Fourthly, a thing called discussions about his performance. Leaving aside the performance development review which you explained was annual, to my learned friend, what if anything is the difference between a performance review, a formal review and discussions about his performance, in your view?‑‑‑There aren't really that many differences between them. If a dean is speaking to an academic member of staff about their workload or their unwillingness to perform what the school thinks is required of that individual, some people might call that formal by default. I would assume that it was formal if there were HR representatives present, possibly NTEU or other support people present for Professor W. I would regard that as a more formal circumstance.

PN3804

You were asked some questions about Ms P and you said the university felt constrained by the agreement to ensure it was acting within the terms of the agreement. What do you mean that the university felt constrained by the agreement in dealing with Ms P?‑‑‑What I mean by that is we felt bound to make it abundantly clear to all concerned that we had given Ms P every opportunity to improve her performance. We felt we needed to do this because of the provisions of the agreement about informal counselling, about the process being cooperative and consultative and the spirit of it, which is that she is given an opportunity to engage with the process informally, to receive support and advice before a formal process is commenced. This was complicated further by the amount of leave taken – both sick leave and purchased leave – by Ms P. Together the process became even more difficult. After a period of leave, we had to again demonstrate all of these things in order to be seen to be complying with the agreement.

PN3805

You were asked some questions in particular at the beginning of the cross‑examination about Ms P; that in your view the agreement led to a process which was so drawn out and destructive and you didn't believe it was a good process. Why do you say that?‑‑‑It had reverberations on the workplace as a whole. It appeared to affect the health and wellbeing of the main individuals involved, especially and including Ms P, but also including Ms S who was her supervisor. It had a demonstration effect on the workplace, in that colleagues of Ms P who were not performing well themselves felt that they would not have any consequences visited upon them because they had before them M P who was not performing well and over a two‑year period – or more than a two‑period, had had no real tangible consequences. I think this corroded the spirit of the workplace. It adversely affected the people involved.

*** RIKKI KERSTEN RXN MR WOOD

PN3806

You were asked some questions before lunch about the current numbers in the School of Arts. Can the witness be given Mr McKee's statement at 1127 in volume 1 of the court book - I think you might have to get it. Sorry, Professor Kersten, it's self‑serve here today?‑‑‑No, that's all right. I'll survive. So it's volume 2?

PN3807

I think it's volume 2. Yes, I'm told.

PN3808

THE COMMISSIONER: What tab are we looking at, gentlemen?

PN3809

MR WOOD: Tab 85, at 1127. It starts at 1125. Can you see that?‑‑‑Yes.

PN3810

This is Mr McKee's witness statement. He says at 1127:

PN3811

The school –

PN3812

being the School of Arts –

PN3813

has at 22 May 2017 the following number of undergraduate students.

PN3814

?‑‑‑Yes.

PN3815

At 32 to 40, you were asked some questions off the top of your head about – because you said you couldn't get the numbers before you – the performance of the school in 2017. Can you have a look at those documents?‑‑‑Yes.

PN3816

Is there anything else you want to say in addition to what you said previously about the performance of your school in terms of student numbers in 2017?‑‑‑These numbers seem to be accurate, but I should point out they are year to date for 2017.

PN3817

What does that mean?‑‑‑That means it's not a complete academic year of figures.

*** RIKKI KERSTEN RXN MR WOOD

PN3818

What significance does that have, if any, to the answers you gave to the questions you were asked about - - -?‑‑‑We have a midyear intake in most disciplines in the school. Not in all, but in most. This is across the board, whether it be PhD or other postgraduate levels, undergraduate, mature age, international. These numbers can change and a reliable date is census date in semester 2. Semester 2 hasn't begun yet and we're far off from census.

PN3819

I should remind you of what the questions were. It was probably a long time ago. Do you recall that you were questioned about the numbers in your school - - -?‑‑‑Yes.

PN3820

- - - on the basis of your first witness statement at paragraph 17 where you said:

PN3821

New student numbers for semester 1 of 2017 will not finalised until 25 March 2017.

PN3822

?‑‑‑Yes.

PN3823

You didn't have those figures – that is the new student numbers for semester 1 at 2017 – in your reply witness statement?‑‑‑That's right.

PN3824

Having seen what Mr McKee has in his reply witness statement?‑‑‑Yes.

PN3825

Can you say anything about the answers you gave to questions about new student numbers for semester 1 of 2017?‑‑‑Only that the same principles apply except in first semester on average the number of students who would be expected to enrol in first semester as opposed to second semester are higher in number.

PN3826

That's the re‑examination, Commissioner.

PN3827

THE COMMISSIONER: Thank you for your evidence. You can step down and are excused.

<THE WITNESS WITHDREW [3.48 PM]

PN3828

THE COMMISSIONER: Gentlemen, I think we might have a five minute break unless there's something you want to tell me?

PN3829

MR WOOD: No, Commissioner.

PN3830

THE COMMISSIONER: All right, we will resume in five minutes.

*** RIKKI KERSTEN RXN MR WOOD

SHORT ADJOURNMENT [3.49 PM]

RESUMED [3.58 PM]

PN3831

MR ATTIWILL: Commissioner, I just wanted to raise one very brief matter. My learned friend is going to call Susan Ashcroft now. My learned junior is going to cross‑examine or ask some questions of Ms Ashcroft and the time estimate there is about half an hour. I just wanted to alert you, Commissioner, that there's also a witness who is Professor David - or Mr H or Professor H. We have just raised with our learned friends whether we would be able to interpose him this afternoon. I'm told that the cross‑examination of him would be pretty confined.

PN3832

The only reason for that, Commissioner, is that he is going to Sydney to care for his 94 year old mother, but we'll just have to see how it goes. If that's not successful and we are out of time, because it is late on a Friday afternoon, then I think my learned friend agrees that we might be able to then just call him in the ordinary course but via video link at that convenient moment.

PN3833

THE COMMISSIONER: From my perspective let's just get rid of one of the uncertainties.

PN3834

MR ATTIWILL: Yes.

PN3835

THE COMMISSIONER: And that is how long it takes us to do the next witness.

PN3836

MR ATTIWILL: Yes.

PN3837

THE COMMISSIONER: And then we'll make a decision.

PN3838

MR ATTIWILL: Yes.

PN3839

MR MANOS: I call Susan Ashcroft.

PN3840

THE ASSOCIATE: Please state your full name and address?

PN3841

MS S ASHCROFT: Susan May Ashcroft (address supplied).

<SUSAN MARY ASHCROFT, AFFIRMED [3.59 PM]

*** RIKKI KERSTEN RXN MR WOOD

EXAMINATION-IN-CHIEF BY MR MANOS [3.59 PM]

PN3842

MR MANOS: Ms Ashcroft, can you please state your current occupation?‑‑‑I'm retired.

PN3843

At the time that you signed your first statement you were the university librarian?‑‑‑I was.

PN3844

Can you please tell the Commission when you retired?‑‑‑On the 23rd of June 2017.

PN3845

Do you have a statement before you that you've signed for the purpose of these proceedings, commencing at Commission book 343 - you'll just see the number up the top right‑hand corner there - through to page 366 including annexures?‑‑‑Yes.

PN3846

Now this is a statement you've sworn for the purpose of these proceedings. Can I ask you please to turn back to page 350?‑‑‑Yes.

PN3847

You'll just see on the left‑hand side there some paragraph numbers. Could I just please ask you to look at paragraph 50 and tell me if there's a change you wish to make to that paragraph?‑‑‑There is. I state there that the first consultation paper was issued as early as April 2014. That is incorrect. It should have read August 2014.

PN3848

Are there any other corrections you wish to make to your statement?‑‑‑No, other than the beginning where you've actually indicated that I'm no longer the university librarian.

PN3849

I have no further questions.

PN3850

THE COMMISSIONER: Any cross‑examination?

CROSS-EXAMINATION BY MR KIRKWOOD [4.02 PM]

PN3851

MR KIRKWOOD: Thank you, Commissioner.

PN3852

Ms Ashcroft, in paragraphs 28 and 29 of your statement you described a panel review of the library that was undertaken in 2016. Do you recall that?‑‑‑Yes I do.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3853

And am I right in understanding that for the purpose of that panel review the library itself prepared a portfolio of evidence to assist the panel to conduct its review?‑‑‑That's correct.

PN3854

And were you involved in preparing that portfolio?‑‑‑Yes I was.

PN3855

Now I just wanted to ask you about a couple of things in that portfolio. One issue is in terms of how Murdoch University library compares itself with other libraries, other university libraries, is it right to say that Murdoch systematically compares itself against three libraries with comparable student enrolments, that is by equivalent full‑time student unit; Flinders University, James Cook University and Australian National University?‑‑‑Yes it does that. It also compares itself to other innovative research universities as well.

PN3856

Yes?‑‑‑So we're benchmarked against both usually.

PN3857

Yes, and so in terms of the universities in that latter group, that would also be Flinders, James Cook - and Ms Ashcroft you're going to need to say yes rather than nod, for the transcript?‑‑‑Yes. Yes.

PN3858

Charles Darwin University?‑‑‑Yes.

PN3859

Griffith University?‑‑‑Yes.

PN3860

And La Trobe University?‑‑‑Yes.

PN3861

There has been a bit of evidence given in this case about library opening hours, and am I right in saying that when you look at those comparator universities, that is equivalent student load and the IRU university libraries, Murdoch's hours compare favourably with those comparators?‑‑‑I can't recall the figures, so you'd have to remind me.

PN3862

I'll just show you the portfolio of evidence. If you just turn to page 11. Do you have page 11?‑‑‑Yes I do.

PN3863

So you'll see at the second half of the page you've got a paragraph beginning "The main library on South Street Campus"?‑‑‑Yes.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3864

And there's a description. It says it's open 89 hours per week?‑‑‑Yes.

PN3865

And then at the end of that paragraph it says:

PN3866

These hours compare favourably with Murdoch's comparators.

PN3867

Do you see that?‑‑‑Yes.

PN3868

And then it lists "ANU, 64 hours. James Cook, 82 hours". Yes?‑‑‑Yes.

PN3869

Sorry, you're going to need to say yes?‑‑‑Yes.

PN3870

"Flinders, 84 hours"?‑‑‑Yes.

PN3871

Thank you, and am I right also in saying that in fact at Murdoch opening hours had been increased in 2015 from 80 to 89 hours in response to student requests for extended hours during exam periods?‑‑‑Which year did you say?

PN3872

2015?‑‑‑That must have been before my arrival. I arrived in May of 2015.

PN3873

I see. So that change had occurred by the time you arrived?‑‑‑Correct.

PN3874

Now I just wanted to ask you one other thing in relation to this portfolio of evidence. If you turn back to paragraph - sorry, page 14. You'll see there's a section which addresses the extent to which the library contributes to the university's strategic goals. Do you see that?‑‑‑Yes.

PN3875

And under the heading "B1A Background" do you see it says that:

PN3876

The library aims to contribute to these university goals, strategies and plans.

PN3877

And then it says:

PN3878

In doing so however the library is aware that there is almost no recognition of the library in the university's high level plans.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3879

?‑‑‑Yes.

PN3880

And was that your view at the time that this portfolio was prepared?‑‑‑It was.

PN3881

And it goes on to say that:

PN3882

There were almost no references to the library in the University Strategic Plan 2012‑2017

PN3883

?‑‑‑Yes.

PN3884

That was the case?‑‑‑Yes.

PN3885

Similarly, there was almost no reference in the University Research Strategy 2015‑2020?‑‑‑Yes.

PN3886

Similarly, almost no reference in the Learning and Teaching Strategy 2015‑2020?‑‑‑There was a reference in the Learning and Teaching, but I think your point was there was almost none.

PN3887

Yes?‑‑‑But there was some, yes.

PN3888

Neither you nor your predecessor, nor other members of the library staff, had had significant input into the development of the University Strategic Plan, Operational Plan or Research Strategy?‑‑‑No, I don't believe that's the case. I think this portfolio indicates that the library wasn't actually mentioned in some of those higher level plans. It doesn't state that neither I nor the previous librarian had input into the strategic plans.

PN3889

Can I just ask you to look at page 15, the third paragraph down. It says:

PN3890

It is notable that neither the current nor previous university librarian or other members of the library staff had significant input into the development of the University Strategic Plan, University Operational Plan or Research Strategy.

PN3891

?‑‑‑I think a salient point there is "significant".

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3892

Yes?‑‑‑I think we had input.

PN3893

Okay. All right. Now, at the time you retired, Ms Ashcroft, the university had been refreshing its strategic plan, had it not?‑‑‑Yes.

PN3894

It was working to develop a 10‑year plan for the period 2017 to 2027?‑‑‑Mm‑hm.

PN3895

As part of that, on I believe 31 January this year the university released a Strategic Refresh discussion paper?‑‑‑Yes.

PN3896

You recall that. Can I just show that to you. On the table there, there is a series of volumes. If you can grab volume 6 of the Commission book and turn to tab 254.

PN3897

THE COMMISSIONER: Sorry, what page number, Mr Kirkwood?

PN3898

MR KIRKWOOD: It's tab 254, page 3307.

PN3899

You see that document?‑‑‑Yes, I do.

PN3900

Have you seen that discussion paper before?‑‑‑Yes, I have.

PN3901

I have read the discussion paper and if I'm wrong about this, someone will no doubt correct me in due course, but I couldn't see any reference to the library in it?‑‑‑I don't recall any reference to the library either.

PN3902

Do you know why that was?‑‑‑It's not surprising. Most of the organisations I've worked in where I've managed a library, the library isn't necessarily at the high levels – noted in a high level strategic document.

PN3903

Would you like it to be?‑‑‑I think it's something that - the strategic document is something that is prepared for the whole organisation. The library is only one part of that. That would suggest that every part of the university should also be mentioned in the strategic document.

PN3904

I tender that document, Commissioner.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3905

THE COMMISSIONER: Yes, the Murdoch University Library Review September 2016 - - -

PN3906

MR MANOS: Just before you do that, Commissioner, we haven't seen this document before. I'm told there is some potentially commercially sensitive information in there. Could I ask that this be marked for identification just while we have a chance to consider it and I expect we will be in a position to agree something shortly with my learned friends.

PN3907

MR KIRKWOOD: I don't seek to tender the portfolio of evidence document. The document I was seeking to tender is this one.

PN3908

MR MANOS: It's already in the court book.

PN3909

THE COMMISSIONER: Which is already in the court book.

PN3910

MR KIRKWOOD: I see. Yes, I apologise. Okay, that's - - -

PN3911

THE COMMISSIONER: I'm put this in the bin, am I?

PN3912

MR KIRKWOOD: If that can be handed back. I don't need to tender that. Thank you, Commissioner. I'm sorry.

PN3913

THE COMMISSIONER: No, it's all right. There was just some confusion.

PN3914

MR KIRKWOOD: Now, I would just like to ask you, Ms Ashcroft, about the Rockingham Library closure. You recall you have given some evidence about that in your witness statement?‑‑‑Yes.

PN3915

Rockingham Library, of course, was a joint use library operating under a tripartite arrangement between Murdoch University, the City of Rockingham and Challenger TAFE, was it not?‑‑‑Yes.

PN3916

You, as I understand it, came into the change management process in about May 2015?‑‑‑Correct.

PN3917

Now, you have talked in your witness statement about the stress being experienced by staff during that process. You recall that?‑‑‑Yes.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3918

It's right to say, isn't it, that the closure of the library was always going to be a stressful experience for library staff, was it not?‑‑‑Not necessarily.

PN3919

Well, several members of staff had been there since the library's opening, hadn't they?‑‑‑They had.

PN3920

They had built long‑standing relationships with Murdoch and Challenger TAFE students?‑‑‑They had.

PN3921

Similarly, they had long‑standing relationships with the Rockingham public?‑‑‑Indeed.

PN3922

So their roots in the student and Rockingham community there ran deep?‑‑‑I believe so.

PN3923

Naturally the closure of that library was going to be a stressful experience for them, wasn't it?‑‑‑It may have been something that they would have chosen to not have happen, but I think under different circumstances it may not have been stressful.

PN3924

Throughout the consultation process that occurred, from time to time university library staff found out information about the proposed closure from sources other than the university, did they not?‑‑‑I'm not sure – I do recall on one instance that a member of staff said that she had heard some information from the city.

PN3925

Yes, that's right. Some staff were finding out information from the City of Rockingham, others were finding out information from Challenger TAFE staff, for example. Were you aware of that?‑‑‑No.

PN3926

Ms Tracie Pollin is giving evidence in this proceeding and in her witness statement she has given some examples of how information came to university library staff from these other sources. For example, she notes that Challenger TAFE had told its staff about the proposed closure about a month after the university had informed its staff. Were you aware of that?‑‑‑No.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3927

Another example is that university staff found out that Challenger TAFE and the City of Rockingham were suggesting to the university that a tripart arrangement continue, but that each of those other parties contribute additional funding. Were you aware of that?‑‑‑Sorry, could you go back to the first part of that question, please.

PN3928

Yes. The proposition is that university staff found out through other sources that Challenger TAFE and the City of Rockingham were suggesting to the university that the tripart arrangement continue, but that Challenger TAFE and the city contribute more funding?‑‑‑Well, that may have occurred, but it certainly didn't occur after my arrival that I'm aware of.

PN3929

Another example is that university staff found out from the council that the City of Rockingham had asked the university to keep things going as business as usual for 12 months, so that the city could manage its budget to keep the library open and take on existing library staff. Were you aware of that?‑‑‑Once again, that must have happened before my arrival.

PN3930

Well, in paragraph 42 of your witness statement you have noted – and I will just take you to that?‑‑‑I've just lost my statement.

PN3931

You will find it in volume 1 of the Commission book at tab 9?‑‑‑Tab 9. Thank you.

PN3932

And I am looking at page 349?‑‑‑M'mm.

PN3933

You see you have said there:

PN3934

Staff had been advised that there were some possibility of some redeployment to the City of Rockingham. The library remained open.

PN3935

Yes, I see that. Ms Pollin has said in her evidence that in fact staff were being told that by the City of Rockingham. Were you aware of that?‑‑‑I did read Ms Pollin's statement. What my statement doesn't say is where the staff found that information from, where the source was. The staff told me that they had been told that there was a possibility of being redeployed to the City of Rockingham. What I wasn't aware of is where they found that information from.

PN3936

I see. What I wanted to put to you as a general proposition is that where you have a tripartite arrangement like this with the city, the TAFE and the university all jointly managing the library it's inevitable, isn't it, that because of the interactions between university staff, city staff, TAFE staff, that there will be this flow of information among the staff. Would you accept that?‑‑‑It depends on the circumstances.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3937

But the simple reality is people talk to each other and information gets around?‑‑‑If the information is confidential it usually doesn't.

PN3938

Now, in your evidence you have suggested that the university shouldn't have been required to consult with staff while closure was still a proposal, and before details were bedded down between the university, the city and the TAFE?‑‑‑Yes.

PN3939

I accurately summarised your position?‑‑‑?‑‑‑Yes.

PN3940

But what I want to put to you is if the university had proposed the closure of the library to the city and the TAFE and then engaged in the kind of protracted negotiation that it did with those other parties it's likely that – I will put it more strongly – it's inevitable that university staff would have found out sooner or later about the proposal from other sources, would they not?‑‑‑Possibly, possibly not.

PN3941

As a matter of good human resources practice you wouldn't have wanted university staff to be finding out that the university had proposed to these other parties that the library be closed – sorry, you wouldn't have wanted your staff to be finding that out from external parties, would you?‑‑‑I think there's an underlying assumption there that I'm not comfortable with. My sense is that if the proposal had been put to the staff later on when some of those details had been bedded down then the three parties could have agreed to keep that confidential until such time as they would actually announce it to the staff and they could do that collectively. That would actually have minimised the stress from my perspective.

PN3942

In that scenario you would have been relying on that confidentiality holding and the proposal not leaking out?‑‑‑Yes.

PN3943

What I want to put to you is that that's an unlikely scenario?‑‑‑I have no comment to that. I think that if the three partners to agree to them they would hold to that position.

PN3944

The next proposition I want to put to you is that surely as a matter of good human resource practice the university would have wanted to be transparent with its own staff, that it had in fact proposed to the other parties that the library would close?‑‑‑I am a strong believer in consultation, but I think in this particular instance because of the circumstances, the unusual circumstances, it would have been better and better human resources practice to actually wait until some of the details were actually bedded down to minimise the negative impact on the staff.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3945

So are you saying that the university should still have consulted staff while it remained a proposal, but at the time when it was a more developed proposal?‑‑‑I think the – I have some 20 plus years as a director, been through a number of change management processes, and my sense that in this particular instance it would have been better for the three parties to come together to bed down some of the details, get closer to the agreement, particularly the tenancy agreement, and then alerted staff. In that particular scenario we would have been able, the university would have been able to answer some of the questions that were troubling the staff for many, many months.

PN3946

In that scenario, accepting that more details would have been bedded down, you would agree that it still would have been appropriate to put the proposal out to staff before any decision was made about closure?‑‑‑Before any decision, but I think in this particular instance it was well, well before it got close to having the details bedded down, and it was the ambiguity that I believe caused the stress.

PN3947

So your view is it would have been better to wait a little longer and have a more developed proposal, then to consult before a decision was made?‑‑‑Yes, I believe that – yes, I believe that to be true.

PN3948

So your concern is not that the enterprise agreement requires consultation about a proposal, it's just a question of how developed that proposal is when it's put out?‑‑‑No, not really, I think that it is – the EA suggests that it is at a very, very early stage and I think in some instances I've certainly had thought bubbles and consulted with my staff and put forward a changed proposal, but in this particular instance I think there should be an opportunity for the university to have actually bedded down some of the details.

PN3949

Would it be better for the agreement to say something like a definite proposal than simply a proposal?‑‑‑I'm not sure about the legal words that should be appropriate there, but closer to that, certainly not final.

PN3950

Certainly - - -?‑‑‑Not final.

PN3951

Certainly not a definite decision, you would agree with that?‑‑‑A final decision.

PN3952

Ms Pollin is complimentary of your efforts after you joined to improve communication with staff about consultation process, you are aware of that?‑‑‑Yes, I am.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3953

And she is similarly complimentary about the efforts of the campus librarian Ms Hanlon to keep staff informed, you would agree with that?‑‑‑Yes.

PN3954

Now, I just wanted to put to you generally as you probably know that the effect of her evidence is that really what exacerbated the stress of staff throughout this process was not the fact that the university had consulted early, but the lack of communication from the university to staff about the progress of the proposal. You're aware of that?‑‑‑I am aware of that.

PN3955

Do you agree or disagree with that?‑‑‑I disagree. I don’t know what the university could have communicated to the staff all those months prior to them getting closer to some – having some detail around the closure.

PN3956

Have you had a chance to read Ms Pollin's statement?‑‑‑I have.

PN3957

Is there anything else in it with which you disagree in particular?‑‑‑There is a suggestion there by Ms Pollin that - I've forgotten her words, something to do with my coming to clean up a mess.

PN3958

Yes?‑‑‑That I have - my attentions were focussed on the future.

PN3959

Yes?‑‑‑And ensuring that I communicated extensively with the team. I think I held something like 38 meetings between May of '15 and the closure date which was January, not necessarily with the staff but around the Rockingham closure. And I like to think that I communicated extensively during that period to keep the staff informed.

PN3960

I just wanted to ask you a few questions very briefly about the issue of salary maintenance. You recall you gave some evidence about that. Now salary maintenance is something that's provided for in clause 64.3(b) of the enterprise agreement. You're aware of that?‑‑‑Yes I am.

PN3961

And that clause provides that the university is entitled to transfer an employee to a suitable alternative position in the university in the event of a redundancy. That's the case, isn't it?‑‑‑Yes.

PN3962

Transfer under the agreement is different from a redeployment. Are you aware of that?‑‑‑I don't know the ins and outs of the EA with respect to that particular clause.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3963

A key difference between a redeployment and a transfer is that an employee has a choice whether to be redeployed but has no choice as to whether to be transferred. Are you aware of that?‑‑‑No I wasn't.

PN3964

Now clause 64.3 was the provision under which Ms Pollin was transferred from the Rockingham Library back to the South Street Library at the end of 2015. Are you aware of that?‑‑‑Yes.

PN3965

And am I right in understanding that she is one of the three employees that you referred to in paragraph 60 to 61 of your witness statement?‑‑‑No, she's in addition to.

PN3966

In addition to?‑‑‑So those three pertained to a restructure that was conducted in 2011 I believe.

PN3967

Yes?‑‑‑And three members - three librarians were salary maintained. One left some time ago, one left and a couple have left - since left and, my apologies, and one remains and Ms Pollin is an additional member that is salary - in the library staff that is salary maintained.

PN3968

Ms Pollin was not given a choice to be transferred - I'm sorry, I withdraw that. When Ms Pollin was transferred from Rockingham back to South Street she was transferred from a level 7 position to a level 5 position. Is that correct?‑‑‑Yes.

PN3969

And she wasn't given a choice about that, she was compulsorily transferred?‑‑‑We - I was in the hands of People and Culture at the time about how we might address or attend to the direct transfers, and to be truthful I can't remember the details around that except that Tracie was - Ms Pollin was identified as someone that could be directly transferred into a position of librarian.

PN3970

Yes and you'd agree, wouldn't you, that it's important for the library to be able to retain staff like Ms Pollin who have long periods of service with corporate knowledge?‑‑‑Yes, Ms Pollin is an excellent librarian.

PN3971

And it's right to say, isn't it, that notwithstanding that she formally occupies a level 5 position, by reason of her experience she's often tasked with duties above that level, so special projects like exhibitions and policy writing?‑‑‑I - no, I disagree with that statement. A number of librarians at level 5s have been asked to do a number of things and engage in a number of projects. So it's not particular to Ms Pollin at all.

PN3972

You're aware, I take it, that the parties have been bargaining for a new enterprise agreement?‑‑‑Yes.

*** SUSAN MARY ASHCROFT XXN MR KIRKWOOD

PN3973

And on this issue of salary maintenance are you aware that in bargaining, the university - sorry, the union has proposed or offered to limit salary maintenance to a 12 month period for all new transfers after the start of any new agreement?‑‑‑I have some knowledge of it, not detailed knowledge.

PN3974

You're aware that that offer was made?‑‑‑I have some knowledge of it.

PN3975

And are you aware that the university has accepted that particular offer?‑‑‑No.

PN3976

If agreement were reached to that effect that would address the concern you had about salary maintenance in the agreement, that it was indefinite in nature. Do you agree with that?‑‑‑My concern is that salary maintenance in perpetuity affects the way in which you can manage your budget. I have calculated that since 2011 the three librarians that were salary maintained, as well as Ms Pollin at the moment, equates to around just under $200,000, and so they're doing level 5 work but being paid at level 7. And given the situation that I found myself with two successive budgets where we've had to find savings, I could have used that 200,000 to actually employ additional staff.

PN3977

And if that entitlement were capped at 12 months would that address your concern; would that be a reasonable compromise?‑‑‑I think a cap of some sort would certainly assist. Whether it's six months, as I believe it is in the public service, or 12 is really up for the Fair Work Commission to decide.

PN3978

Thank you. No further questions.

PN3979

THE COMMISSIONER: Re‑examination Mr Manos?

RE-EXAMINATION BY MR MANOS [4.35 PM]

PN3980

MR MANOS: Just very briefly, Commissioner.

*** SUSAN MARY ASHCROFT RXN MR MANOS

PN3981

Ms Ashcroft, you were asked some questions early on in the cross‑examination about the stress that staff might ordinarily experience in relation to the closure of a library. Are you able to tell the Commission, give the Commission any examples of stress that employees experienced during the Rockingham Library consultation?‑‑‑I can indeed. There were - as I indicated in my statement, the stress was greater than I've ever experienced in my 20 plus years of being a director. I can sincerely say that every member of staff that I met at Rockingham from my - certainly from my observations were stressed. Some were managing the process better than others. On one - they ranged from being aloof when I spoke to them when I first went down to Rockingham, which was only a couple of weeks after I started, right through to being aggressive. On one particular occasion when I met with all of the staff one member of staff swore at me, raised her voice and swore at me - I was with Mrs Clark at the time, who was the People and Culture representative - I - and left the room and slammed the door. I was quite - I met - on that particular occasion I met with each member of staff to talk to them about their future and how I - because my objective was to assist them as much as possible through the transition period. One member of staff mentioned that the person that had left had mentioned suicide, which concerned me greatly, at which time soon afterwards I went down to see the member of staff. She would not look at me. She would not speak to me. She raised her voice. Prior to that she actually said she not only hated the university but she hated me, and she also mentioned that - she also said that she would mention me in her suicide note. And as my statement says, not only was this the worst situation I've come across, it was actually quite confronting for me and personally egregious for me.

PN3982

One other topic I will just ask you about, Ms Ashcroft, was you were asked some questions about the desirability of beginning a consultation at the proposal stage?‑‑‑Yes.

PN3983

Are you able to tell the Commission approximately how many hours you personally spent being involved in the consultation process?‑‑‑Yes, as I mentioned before, I held many meetings around the consultation process. So that's between May of '15 and January of '16. I looked at the number of emails that I wrote. I looked at the number of - I tried to recall the number of telephone calls I made. I think it would be in the - it would be fair and reasonable to say it was the equivalent of six weeks of my time.

PN3984

Six weeks full‑time?‑‑‑Yes.

PN3985

I have no further questions.

PN3986

THE COMMISSIONER: Thank you for your evidence. You can step down and are excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [4.38 PM]

PN3987

THE COMMISSIONER: Mr Attiwill, what is the situation do you think?

PN3988

MR ATTIWILL: Commissioner, we're really in your hands. We acknowledge the following. One, it has been a long week. It is 20 to five. Professor H is outside. I'm told by Mr Wood - I don't suspect that he's going to be long with Professor H. But I do make those acknowledgements, Commissioner. So if it - - -

*** SUSAN MARY ASHCROFT RXN MR MANOS

PN3989

THE COMMISSIONER: You're not even a third of the way there, Mr Attiwill. What will you be saying to me this time next week?

PN3990

MR ATTIWILL: Yes, I should be more positive.

PN3991

THE COMMISSIONER: By the then the Stockholm Syndrome will have set in.

PN3992

MR ATTIWILL: Yes.

PN3993

THE COMMISSIONER: And we'll have settled this.

PN3994

MR ATTIWILL: Yes.

PN3995

THE COMMISSIONER: I think we should press on, unless you have some objection, Mr Wood?

PN3996

MR WOOD: No, Commissioner.

PN3997

MR ATTIWILL: We would be very grateful, Commissioner.

PN3998

THE COMMISSIONER: No, that's fine.

PN3999

MR ATTIWILL: So I call Professor H.

PN4000

THE ASSOCIATE: Please state your full name and address?

PN4001

PROFESSOR D HILL: David Tom Hill (address supplied).

<PROFESSOR DAVID TOM HILL, SWORN [4.40 PM]

EXAMINATION-IN-CHIEF BY MR ATTIWILL [4.40 PM]

PN4002

MR ATTIWILL: So Professor Hill, you've said your full name is David Tom Hill and that your address is (address supplied)?‑‑‑That's correct.

*** PROFESSOR DAVID TOM HILL XN MR ATTIWILL

PN4003

And you are currently the Emeritus Professor of South East Asian Studies and a Fellow in the Asian Research Centre at Murdoch University?‑‑‑Correct.

PN4004

And you are also currently the director of the Australian Consortium for In Country Indonesian Studies?‑‑‑Correct.

PN4005

And that is currently based at the University of Western Australia?‑‑‑Correct.

PN4006

You have signed a statement in these proceedings?‑‑‑I have.

PN4007

Could I show you a copy of that, and you'll see that that's a copy with your name on it and then you have signed it on the last page?‑‑‑That's correct.

PN4008

Now you wish to make a correction to that statement, is that correct?‑‑‑Yes I do. I draw your attention to paragraph 11 section D. The word "co-coordinating" to be replaced by "co-teaching". So coordinating deleted and teaching replacing it.

PN4009

Right, with that correction is the statement otherwise true and correct?‑‑‑It is.

PN4010

No further questions, Commissioner. Does that statement need to be tendered, because it's outside the Commission book?

PN4011

THE COMMISSIONER: Yes. Yes, we'll mark the witness statement of Emeritus Professor David Hill as exhibit R28.

EXHIBIT #R28 WITNESS STATEMENT OF EMERITUS PROFESSOR DAVID HILL

PN4012

THE COMMISSIONER: Cross‑examination Mr Wood?

CROSS-EXAMINATION BY MR WOOD [4.42 PM]

PN4013

MR WOOD: Thank you, Commissioner.

PN4014

Professor Hill you'd been employed at Murdoch for about a quarter of a century, by the time Professor Kersten became dean in February 2014?‑‑‑That's correct.

*** PROFESSOR DAVID TOM HILL XXN MR WOOD

PN4015

And you had interactions with her over the succeeding 18 months until you took a voluntary retirement package in September 2015?‑‑‑Correct.

PN4016

And I don't want to get into the ins and outs of who was right and who was wrong, but in the broad do I take it that the issue between you and Professor Kersten was that she wanted you to do more teaching?‑‑‑That was one of the elements, indeed.

PN4017

Well I think in paragraph 45 of your witness statement you say that you told Professor Kersten that:

PN4018

It wouldn't be in the university's interests to have me as a senior and internationally acclaimed academic on a level E salary deployed to teach basic Indonesian language.

PN4019

Now these conversations occurred on a number of occasions over those 18 months. How many occasions roughly?‑‑‑Certainly several.

PN4020

And your own evidence is Professor Kersten persisted in her efforts to prevent you from undertaking the work that you had engaged in over the previous 20 years since setting up the - forgive me if I mispronounce this, the ACICIS, is that right?‑‑‑Correct. Yes.

PN4021

And the reason that Professor Kersten gave you in her persistent attempts to prevent you undertaking this work was that she wanted you to do more teaching?‑‑‑Yes.

PN4022

That issue had been - from your perspective you had an arrangement that had been entered into some 20 years earlier in about 1994 whereby you were - can I use the colloquialism, regarded as a point 8 because you had some time credited to your work with the ACICIS. Is that right?‑‑‑No I wouldn't express it in those terms. I was a full‑time member of Murdoch University academic staff. Under the arrangement which had been in place over the period since the establishment of ACICIS 20 per cent of my time, that is 20 per cent as a proportion of my teaching component, was regarded as being fulfilled through my activities in leading ACICIS.

PN4023

And you fulfilled - you used up all that 20 per cent of your teaching allocation in your duties as director of ACICIS over those 20 years. Is that fair?‑‑‑In broad terms, yes.

*** PROFESSOR DAVID TOM HILL XXN MR WOOD

PN4024

And in broad terms, and that's all I'm really interested in, it's fair to say that Professor Kersten wanted you to cease the engagement with ACICIS and return or devote more time to the classroom. Is that fair?‑‑‑Essentially, yes.

PN4025

And you disagreed with that idea because in your view ACICIS brought a lot of value to the university and to the courses taught in the School of Arts. Is that fair?‑‑‑Well, yes but I would add it was not simply because of the value that ACICIS's presence at Murdoch University would have brought to the university and to the school, but because out of the research that I had conducted over many years on the teaching of Indonesian language I believed that a different strategy would have been much more successful in expanding and at least sustaining and potentially increasing the number of enrolments in Indonesian at Murdoch University.

PN4026

And that was the issue between you and Professor Kersten, that you had your own ideas and own strategy - and there's no criticism of that - for improving enrolments in Indonesian and she had different ideas. Is that fair?‑‑‑I believe that she didn't engage with the research evidence with regard to the strengthening of Indonesian language teaching, both at Murdoch and nationally.

PN4027

Yes, that she had different ideas to you about how to improve the operation of this aspect of the school?‑‑‑You could put it that way.

PN4028

You had had a deal, to just put it at a very helicopter lever, you had had a deal that had been operating, in your view, very effectively, very efficiently and with great benefit to the university and you had that deal for about 20 years?‑‑‑Yes.

PN4029

Professor Kersten came in and very soon after she came, she wanted to alter that deal?‑‑‑Yes.

PN4030

You resisted her altering that deal because in your view, it was bringing substantial benefit to the university?‑‑‑In my view and in the view of many others at the university as indicated in a review that the university conducted into that arrangement.

PN4031

In Professor Kersten's view, she thought that deal wasn't bringing as much advantage to the university as she thought it could bring?‑‑‑Sorry, can you repeat that?

*** PROFESSOR DAVID TOM HILL XXN MR WOOD

PN4032

That the deal whereby you spent time with ACIS that was credited as 20 per cent of your teaching time whereby you weren't in the classroom and a casual academic was teaching in the classroom and whereby you were, in her view, being told that if you weren't going to teach in the classroom that you had to develop some other courses you yourself would teach. Is that fair?‑‑‑Well, I'm not quite sure that you've got a handle on this. I mean, I was in the process of developing other courses which I was actually teaching separate from the Indonesian language units which had been taught for more than 10 years by another staff member at Murdoch University who was on a fractional contract and had been since 2002.

PN4033

You explain, this is your own words, to Professor Kersten that: "I had a longstanding arrangement with the university where I have spent 20 per cent of teaching allocation as director of ACIS, that I had funding through which I could access teaching by it, and the work I was doing" - that is the arrangements you had been on for the past 20 years - "were in the best interests of the school and university"?‑‑‑Correct.

PN4034

You also told her, and this is your own words: "It would not be in the university's interest to have me" - that's you - "as a senior and internationally acclaimed academic on a level E salary deployed to teach basic Indonesian language"?‑‑‑Correct.

PN4035

That dispute on at least those issues remained between you and Professor Kersten from soon after she became dean to the time at which you took the voluntary retirement package in September 2015?‑‑‑It unfolded over that period, yes.

PN4036

That's the cross-examination.

PN4037

MR ATTIWILL: I have no re-examination.

PN4038

THE COMMISSIONER: Thank you for your evidence. You can step down and are excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [4.50 PM]

PN4039

THE COMMISSIONER: You don't have anybody else sitting out there, do you, gentlemen?

PN4040

MR WOOD: If you want us to bring them in, Commissioner, we can make this a day-nighter if you like.

PN4041

THE COMMISSIONER: A shadow of their former self, I suspect by this stage. Yes, Mr Attiwill.

*** PROFESSOR DAVID TOM HILL XXN MR WOOD

PN4042

MR ATTIWILL: The only matter that I would raise is just if my learned friend can provide an update in relation to the senate material that was being pursued - so that the latest was - by Ms Feist - so the latest was that Ms Feist had made an enquiry of People & Culture, so we're just wondering what the update on that was. There is one other matter that I wish to raise and that is this. So that's one matter. The other matter was you will recall that in the cross-examination of Mr McKee, I asked Mr McKee if he could obtain material in relation to the legal costs incurred by Murdoch University in relation to both the Federal Court proceeding and in relation to this proceeding. Material was provided, but I'd just ask my learned friend to provide an update because Minter Ellison came partway through only in relation to Federal Court proceedings so further material was to be obtained, so just to see what the update about that was from my learned friend.

PN4043

MR WOOD: We're in the process of obtaining both those pieces of information and we should be in a position to provide to the Commission on Monday morning, I would hope. At least the senate material on Monday morning and then hopefully shortly thereafter the other material.

PN4044

MR ATTIWILL: We're just trying to figure out what we're doing next week, but I think the number of witnesses are getting reduced.

PN4045

THE COMMISSIONER: I know what you're doing next week. All right, gentlemen, thank you for that. Could I just make a couple of observations about where we're up to. You perhaps have more insight into this than I, but I know where we've been and unlike all superannuation funds, the past is the usual predictable of the future. We have had, I think, eight witnesses now in three and a half days. A very rough math as Mr Hill was so short he almost doesn't count in that math, but we are getting through roughly two witnesses a day. My head count understanding that at least, I think, eight of the respondent's witnesses are not required for cross-examination and, of course, these numbers my change. But my rough head count is we've got about 33 people left on the witness list. That simple math with 10 more listing days tells me that we need to increase the rate with which we produce witnesses per day by 50 per cent. Do we think that is doable, gentlemen?

PN4046

MR ATTIWILL: In relation to the remaining witnesses, I can say just from our point of view, Mr Raymond will be short, so I wouldn't expect the cross-examination of him to go much past sort of half an hour or thereabouts - same for Mr Flanagan. That leaves Mr Scasserra who is unfortunately a very substantial witness, but given what's happened this week, we'll look carefully at that to see, but that's a substantial witness that could take half a day. And then that leaves Mr Major and Mr Dickson and each of those are a reasonably substantive witness, but Mr Kirkwood is going to be - yes. Yes, I think that from our estimate, there would be a good prospect of finishing the applicant's witnesses certainly by Wednesday and maybe Wednesday morning. Now, I understand that Mr Flanagan is going to be called on Wednesday morning, but I think that we'd be able to get through it by Wednesday morning. I know that that still leaves a substantive number of witnesses on our side.

PN4047

THE COMMISSIONER: That gets us through 13 out of about 48.

PN4048

MR ATTIWILL: Yes, yes, we appreciate that, Commissioner.

PN4049

THE COMMISSIONER: Candour is what I'm after at the moment. I can envisage that cross-examination may accelerate the terms of when Mr Wood and Mr Manos have their turn to cross-examination the respondent's witnesses largely because of the nature of their evidence and role in all of this, so things can change, I accept that.

PN4050

MR WOOD: We have had a look at the witnesses. I think the respondent's started with 33. We've told them we don't need eight. I think there'll be at least one more. There might be more than one. Within those remaining 24, there are two experts that should be quite short. The three what I might call union officials would be a touch longer, but the remaining 19, if we don't choose not to cross-examine them at all should be reasonably short. I mean, they're quite confined, so we should be able to move through those 19 pretty quickly including by not cross-examining at all.

PN4051

THE COMMISSIONER: As a present for good behaviour, I think we will start at 10 am on Monday and whilst the notice of listing says 10 am for the rest of the week, I will frankly review that. Broadly, my view about that is I would rather we gained time earlier in the next two weeks than try and make it up later, you know what I mean.

PN4052

MR ATTIWILL: Yes.

PN4053

THE COMMISSIONER: All right, thank you for your cooperation. It's been a very enjoyable time I've spent with you and I'm sure no doubt you feel the same. Enjoy your weekend to the extent you can and we'll see you at 10 am on Monday. Thank you.

ADJOURNED UNTIL MONDAY, 10 JULY 2017 [4.57 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A11 BUDGET PAPERS................................................................. PN2715

FIONA CATHERINE FEIST, RECALLED................................................... PN2725

CROSS-EXAMINATION BY MR KIRKWOOD........................................... PN2725

EXHIBIT #R16 LETTER ON MURDOCH LETTERHEAD DATED 18/12/2014 TO DR KIRSTY BAYLISS RE REQUEST FOR CONVERSION TO CONTINUING STATUS............................................................................................................................... PN2830

EXHIBIT #R17 ATTACHMENT KB12 TO WITNESS STATEMENT OF KIRSTY BAYLISS............................................................................................................................... PN2923

EXHIBIT #R18 EMAIL HEADED "RE UNIT REVIEW FINANCIAL DATA" DATED 15/11/16 FROM RICHARD HARPER WITH A NUMBER OF ATTACHMENTS, AND TWO SPREADSHEETS............................................................................................... PN2962

EXHIBIT #R19 LETTER ON MURDOCH UNIVERSITY LETTERHEAD DATED 29/06/2017 TO DR KIRSTY BAYLISS RE APPLICATION FOR PROBATIONARY REVIEW............................................................................................................................... PN2974

RE-EXAMINATION BY MR MANOS............................................................ PN3015

THE WITNESS WITHDREW.......................................................................... PN3044

RIKKI KERSTEN, AFFIRMED...................................................................... PN3047

EXAMINATION-IN-CHIEF BY MR WOOD................................................. PN3047

CROSS-EXAMINATION BY MR KIRKWOOD........................................... PN3102

THE WITNESS WITHDREW.......................................................................... PN3208

RIKKI KERSTEN, RECALLED..................................................................... PN3210

CROSS-EXAMINATION BY MR ATTIWILL, CONTINUING................. PN3210

EXHIBIT #R20 EXTRACT TITLED "VARIED AUSTRALIAN NATIONAL UNIVERSITY ENTERPRISE AGREEMENT 2005 - 2008..................................................... PN3267

EXHIBIT #R21 DOCUMENT DATED 06/08/2015 TO PROBATION.PROMOTION............................................................................................................................... PN3689

EXHIBIT #R22 EMAIL DATED 15/09/2015 TO TEAGAN KIRK............. PN3690

EXHIBIT #R23 LETTER FROM BOB FARRELLY ON MURDOCH LETTERHEAD DATED 1 OCTOBER (WITH DAY OF MONTH SCRATCHED OUT).................... PN3691

EXHIBIT #R24 EXTRACT FROM ANNUAL LEAVE BOOKING SYSTEM PN3776

EXHIBIT #R25 DOCUMENT ATTACHING EMAILS, FIRST EMAIL FROM MS KERSTEN SENT ON 07/03/2016, SUBJECT: "CLARIFICATION RE INVITATION" PN3777

EXHIBIT #R26 BUNDLE OF EMAILS, FIRST EMAIL FROM MR COUSNER SENT ON 21/03/2016 TO BRENDAN CUSACK, SUBJECT "DISPUTE NOTIFICATION" PN3778

EXHIBIT #R27 BUNDLE OF EMAILS, FIRST EMAIL FROM HANNAH BEGG DATED 20/03/2015 TO MR COUSNER, SUBJECT "RE DISPUTE NOTIFICATION" PN3779

RE-EXAMINATION BY MR WOOD.............................................................. PN3782

THE WITNESS WITHDREW.......................................................................... PN3827

SUSAN MARY ASHCROFT, AFFIRMED..................................................... PN3841

EXAMINATION-IN-CHIEF BY MR MANOS............................................... PN3841

CROSS-EXAMINATION BY MR KIRKWOOD........................................... PN3850

RE-EXAMINATION BY MR MANOS............................................................ PN3979

THE WITNESS WITHDREW.......................................................................... PN3986

PROFESSOR DAVID TOM HILL, SWORN.................................................. PN4001

EXAMINATION-IN-CHIEF BY MR ATTIWILL......................................... PN4001

EXHIBIT #R28 WITNESS STATEMENT OF EMERITUS PROFESSOR DAVID HILL............................................................................................................................... PN4011

CROSS-EXAMINATION BY MR WOOD...................................................... PN4012

THE WITNESS WITHDREW.......................................................................... PN4038

Fair Work Commission Transcripts

AG2016/7598, Transcript of Proceedings [2017] FWCTrans 424 (9 October 2017)